Judgment:
- 1 - MFA No.23523 of 2011 R C/W MFA No.22905 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE17H DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE RAVI V.HOSMANI MISC. FIRST APPEAL NO.23523 OF2011(MV-D) C/W MISC. FIRST APPEAL NO.22905 OF2011IN MFA.NO.23523/2011: BETWEEN:
1. THE GENERAL MANAGER, KSRTC, CENTRAL OFFICE, K.H. DOUBLE ROAD, SHANTINAGAR, BANGALORE. THROUGH THE DIVISIONAL CONTROLLER, NWKRTC, BELGAUM DIVISION, BELGAUM.
2. THE DEPUTY GENERAL MANAGER, KSRTC, INTERNAL INSURANCE FUND, CENTRAL OFFICE, K.H. DOUBLE ROAD, SHANTINAGAR, BANGALORE. THROUGH THE DIVISIONAL CONTROLLER, NWKRTC, BELGAUM DIVISION, BELGAUM. …APPELLANTS (BY SRI I.C. PATIL, ADVOCATE) AND:
1. HASEEM, S/O MUNAVARKHAN PATHAN, AGE:
46. YEARS, OCC: COOLIE, R/O POL PIMPRI, TQ. PARALI (VAIJANATH), DISTRICT BEEDI, MAHARASHTRA.
2. SMT. MUNNABHEE, W/O HASEEM PATHAN, AGE:
40. YEARS, OCC: HOUSEHOLD, R/O POL PIMPRI, TQ:PARALI (VAIJANATH), DIST. BEEDI, MAHARASHTRA STATE …RESPONDENTS (BY SMT. SHAILA BELLIKATTI, ADVOCATE) - 2 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 THIS MFA FILED U/SEC. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT
AND DECREE DATED1703-2011 PASSED IN MVC.NO.897/2010 ON THE FILE OF THE MEMBER, ADDL. MACT, SAUNDATTI, AWARDING THE COMPENSATION OF RS.3,17,000/- WITH INTEREST AT THE RATE OF6 P.A., FROM THE DATE OF PETITION TILL REALISATION. IN MFA.NO.22905/2011: BETWEEN:
1. HASEEM, S/O MUNAVARKHAN PATHAN, AGE:
46. YEARS, OCC: COOLIE, R/O POL PIMPRI, TQ. PARALI (VAIJANATH), DISTRICT BEED, MAHARASHTRA STATE.
2. SMT. MUNNABHEE, W/O HASEEM PATHAN, AGE:
41. YEARS, OCC: HOUSEHOLD WORK, R/O POL PIMPRI, TQ:PARALI (VAIJANATH), DIST. BEED, MAHARASHTRA STATE. …APPELLANTS (BY SRI H.M.DHARIGOND, ADVOCATE) AND:
1. THE GENERAL MANAGER, KSRTC, CENTRAL OFFICE, K.H. DOUBLE ROAD, SHANTINAGAR, BANGALORE - 027. THROUGH THE DIVISIONAL CONTROLLER, NWKRTC, BELGAUM DIVISION, DISTRICT BELGAUM.
2. THE DEPUTY GENERAL MANAGER, KSRTC, INTERNAL INSURANCE FUND, CENTRAL OFFICE, K.H. DOUBLE ROAD, SHANTINAGAR, BANGALORE - 027. THROUGH THE DIVISIONAL CONTROLLER, NWKRTC, BELGAUM DIVISION, BELGAUM. INSURER OF KSRTC BUS NO.KA-01/F-1587, KSRTC, SAUNDATTI BUS DEPOT. …RESPONDENTS (BY SRI I.C. PATIL, ADVOCATE) - 3 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED1703-2011 PASSED IN MVC.NO.897/2010 ON THE FILE OF THE MEMBER, ADDL. MACT SAUNDATTI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENAHANCEMENT OF COMPENSATION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Challenging judgment and award dated 17.03.2011 passed by Additional Motor Accident Claims Tribunal, Saundatti, in MVC.no.897/2010, these appeals are filed.
2. Brief facts as stated are that in an accident that occurred on 11.03.2010, Babu Pathan and others were traveling back to their village Mabanur from Munavalli village in TATA Ace bearing registration no.KA-24/5664. Babu Pathan was standing at rear right side by clinging onto carrier. At that time, KSRTC bus bearing registration no.KA-01/F-1587 driven by its driver in rash and negligent manner came from opposite direction and dashed against TATA Ace. Consequently, deceased - Babu Pathan was thrown away from vehicle sustained grievous injuries and died.-. 4 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 3. Claiming compensation on account of his untimely death, parents filed claim petition under Section 166 of Motor Vehicles Act, against KSRTC.
4. On service of notice, KSRTC entered appearance and opposed claim petition on all grounds. It was specifically contended that at time accident TATA Ace vehicle was overloaded with passengers and accident occurred due to rash and negligent driving of TATA Ace driver. It was also contended that driver, owner and insurer of TATA Ace were necessary parties and claim petition was bad for non-joinder of necessary parties.
5. Based on pleadings, tribunal framed issues and additional issues and thereafter, recorded evidence of claimant no.2 as PW-1 and complainant as PW-2. Exhibits P1 to P7 were marked. KSRTC examined driver of bus as RW1 and got marked Exhibits R1 to R3.
6. On consideration, tribunal held that accident occurred due to sole negligence of driver of KSRTC and claimants were entitled for compensation. It also - 5 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 held that claim petition was bad for non-joinder of necessary parties. It assessed compensation at Rs.3,17,000/- with 6% interest per annum against KSRTC.
7. Claim petition of claimant no.1 was dismissed.
8. Aggrieved thereby, KSRTC is in appeal challenging finding of tribunal regarding negligence and liability. While claimant no.2 is in appeal for enhancement of compensation.
9. Sri I.C.Patil, learned counsel for KSRTC submitted that as per Ex.P1 – complaint, deceased Babu Pathan was traveling in TATA Ace by standing on footrest holding carrier, on rear right side of TATA Ace and was therefore, traveling unsafely. Even in Ex.P6 – Ex.R3 – charge-sheet, charges were leveled against drivers of both TATA Ace as well as KSRTC bus. Therefore, finding of tribunal apportioning entire negligence against KSRTC was unsustainable and sought for allowing appeal.-. 6 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 10. On other hand, Smt. Shaila Bellikatti and Sri H.M.Dharigond, learned counsel for claimant submitted that while passing impugned award, tribunal took note of fact that bus was moving on wrong side at time of accident, by referring to Ex.P3 – spot panchanama and Ex.P4 – hand sketch map. Therefore, apportionment of negligence did not call for interference. It was further submitted that application of multiplier corresponding to age of mother was erroneous.
11. From above submission, since KSRTC is in appeal challenging negligence and claimant no.2 is in appeal seeking for enhancement, therefore, points that arise for consideration are: “1. Whether finding of tribunal regarding negligence calls for modification?.
2. Whether claimant no.2 is entitled for enhancement of compensation as sought for?.
12. Point no.1: Insofar as negligence, on perusal of Ex.P1 – complaint and Ex.P6 – charge-sheet - 7 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 which are also produced by KSRTC as Exs.R1 and R3 respectively, tt is seen that at time of accident Babu Pathan was traveling outside TATA Ace vehicle by standing on footrest and hanging to carrier, which would be traveling in unsafe manner. As per Exs.P3 and P4 – spot panchanama and hand sketch map, accident occurred on 18 feet wide north-south running road, at 4 feet from western edge and bus was moving from north to south. On referring to same, tribunal held that bus driver was negligent in causing accident. However, fact that Babu Pathan was traveling unsafely, (which fact stands corroborated from charge-sheet filed against driver of TATA Ace), has to be held as contributing towards suffering aggravated injuries leading to his death.
13. From Ex.P7 – PM report, deceased – Babu Pathan sustained injuries to his head and spleen, which can be attributed to his travel position. Since deceased aggravated injuries, sustained due to unsafe travel, there has to be apportionment of negligence against him. In facts and circumstances of case, I am - 8 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 of considered opinion that apportionment of 20% negligence would be just and proper. Hence, point no.1 is answered partly in affirmative as above.
14. Point no.2: Insofar as enhancement, it was submitted that deceased was 20 years of age, working as coolie and earning Rs.10,000/- per month. However, same was not substantiated with any evidence. In absence of same, it has to be assessed notionally. But, notional income for year 2010 is Rs.5,500/-. Therefore, tribunal was not justified in taking it at Rs.3,300/-. Babu Pathan was bachelor and self-employed. As per decision of Hon’ble Supreme Court in case of National Insurance Co. Ltd. v/s Pranay Sethi and Ors., reported in AIR2017SC5157 multiplier applicable would be ‘18’, addition of future prospects will have to be at ‘40%’ and deduction towards personal expenses will have to be at ‘½’. Thus, loss of dependency would be as follows: Rs.5,500/- + 40% - ½ X12x 18 = Rs.8,31,600/-.-. 9 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 15. Apart from above and since claim petition of claimant no.1 is dismissed, claimant no.2 would be entitled for compensation of Rs.40,000/- towards loss of parental consortium. She would also be entitled to Rs.15,000/- towards funeral expenses and like sum towards loss of estate. Since more than 3 years have lapsed after decision in Pranay Sethi’s case (supra), 10% has to be added to compensation under conventional heads which would be: Rs.40,000/- + Rs.15,000/- X2+ 10% = Rs.77, 000/-. Therefore, total re-assessed compensation would be follows: Sl. Amount in Conventional Heads No.Rupees 1. Loss of dependency 8,31,600/- 2. Loss of consortium 40,000/- 3. Towards Funeral expenses 15,000/- 4. Loss of estate 15,000/- 5. 10% Addition 7,000/- Total 9,08,600/- Thus, claimant no.2 is entitled for re-assessed compensation of Rs.9,08,600/-. Point no.2 is answered partly in affirmative as above.-. 10 - MFA No.23523 of 2011 C/W MFA No.22905 of 2011 16. Consequently, following: ORDER
i. MFA.no.22905/2011 filed by claimant no.2 is allowed in part. ii. Compensation is re-assessed at Rs.9,08,600/- as against Rs.3,17,000/- awarded by tribunal with interest at 6% per annum from date of claim petition till deposit. iii. MFA.no.23523/2011 filed by KSRTC is allowed in part. Insofar as restricting its liability to only 80% of total compensation. iv. Claimant no.2 is held entitled for only 80% out of total re-assessed compensation of Rs.9,08,600/- i.e. Rs.7,26,880/- from KSRTC. v. Amount in deposit is ordered to be transmitted to tribunal for payment. vi. KSRTC is directed to deposit balance compensation within a period of eight weeks. Sd/- JUDGE GRD