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2022 DIGILAW 1175 (KAR)

Divisional Controller v. Jayashree

2022-09-06

ANANT RAMANATH HEGDE, S.G.PANDIT

body2022
JUDGMENT/ORDER S.G.PANDIT, J. - Though these appeals are listed for orders, they are taken up for final disposal, with the consent of learned counsel for both the parties. 2. NWKRTC is in appeal in MFA No.103125/2019 challenging the contributory negligence as well as quantum of compensation which is excessive and exorbitant. The claimants are also in appeal in MFA No.104034/2019 praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under judgment and award dtd. 10/5/2019 passed in MVC No.14/2016 on the file of the learned Member, MACT, Bagalkot (for short, 'Tribunal'). 3. The claimants, who are the wife, children, sister and mother of the deceased Nandalal Surana, filed a claim petition under Sec. 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of deceased Nandalal Surana, that took place on 3/11/2015 involving Motorcycle bearing registration No.KA-29/V-9186 and NWKRTC Bus bearing registration No.KA-25/F-2988. 4. On issuance of notice, respondent No.1 remained absent and placed exparte. Respondent No.2- NWKRTC appeared through its counsel and filed statement of objections denying the entire claim petition averments. It was contended that the accident occurred due to sole negligence of deceased rider of motorcycle in question. It was further contended that there was no fault on the part of the driver of NWKRTC, who was driving the bus following the traffic rules and regulations. Thus, sought for dismissal of the claim petition. 5. Before the Tribunal, claimant No.1-wife of the deceased examined as PW1 and examined another witness as PW2 apart from marking the documents as Exs.P1 to P17. The respondents examined driver of Bus as RW1 and marked the documents as Ex.R1 & R2. The Tribunal based on the material on record awarded a total compensation of Rs.28, 95, 460.00 with interest at 6% per annum from the date of judgment till realization on the following heads: 6. While awarding the above compensation, the Tribunal determined the income of the deceased at Rs.2.97, 809 per annum, applied multiplier of 11 as the deceased was aged 54 years and deducted 1/4th towards personal expenses of the deceased. The Tribunal held that the accident occurred due to negligence of driver of NWKRTC bus in question and saddled the entire liability on the appellant/Corporation. The Tribunal held that the accident occurred due to negligence of driver of NWKRTC bus in question and saddled the entire liability on the appellant/Corporation. The appellant-Corporation is in appeal before this Court aggrieved by saddling of liability as well as quantum of compensation which is on the higher side and the claimants are also in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal. 7. Sri. M.K. Soudagar, learned counsel appearing for the appellant-Corporation in support of his appeal strenuously contended that the Tribunal committed a grave error in saddling the entire liability on the part of driver of the bus in question, since the accident took place solely due to negligent riding of the motorcycle by the deceased. Further, learned counsel placing reliance on Ex.P3-Spot Panchanama along with sketch map would submit that rider of the motorcycle who was coming from Mahesh Colony entered the main road and bus in question, which was coming from APMC towards Daddennavar cross, dashed to the motorcycle of the deceased. He further submits that the rider of the motorcycle in question ought to have been careful at the junction and without noticing the bus which was coming from APMC towards Daddennavar cross, he entered the main road and caused the accident. It is further submitted that the accident occurred due to sole negligence on the part of the deceased who was riding the motorcycle in question and therefore, contributory negligence is to be fixed to the extent of 90:10 between deceased and NWKRTC. 8. As regards the quantum of compensation awarded by the Tribunal, learned counsel Sri. M.K. Soudagar does not dispute the factum of income of the deceased assessed by the Tribunal at Rs.2, 97, 809.00 per annum based on income tax return at Ex.P8. It is his submission that the Tribunal committed an error in adding 15% of the assessed income of the deceased towards future prospects, since the claimants would be entitled to 10% of the assessed income as held by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, AIR 2017 SC 5157 . Thus, he prays for modifying the judgment and award by allowing the appeal filed by the Corporation. 9. Per contra, Sri. Pranay Sethi & Others, AIR 2017 SC 5157 . Thus, he prays for modifying the judgment and award by allowing the appeal filed by the Corporation. 9. Per contra, Sri. Chandrashekhar M Hosamani, learned counsel for the appellants/claimants in support of his appeal would submit that the Tribunal is justified in holding that the accident occurred due to sole negligence on the part of driver of the bus in question. He further submits that the police have filed charge sheet against the driver of the bus in question. It is his submission that the Tribunal has assessed the income of the deceased at Rs.2, 97, 809.00 per annum, which is on the lower side. He further submits that the deceased was doing business and earning Rs.20.00 lakhs per annum. He further submits that since there are four dependents, claimants would be entitled to Rs.40, 000.00 each towards loss of consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram & Others, 2018 ACJ 2782 . He also submits that the Tribunal committed an error in awarding interest on the compensation amount from the date of judgment till realization instead of from the date of petition till realization. Thus, learned counsel prays for allowing the appeal filed by the claimants by enhancing the compensation. 10. Having heard the learned counsel for both the parties and on perusal of the appeal papers along with original records, the following points would arise for our consideration in these appeals: a) Whether the Tribunal is justified in holding that the accident had occurred due to sole negligence on the part of the driver of NWKRTC bus in question? b) Whether the claimants would be entitled for enhanced compensation? 11. Our answer to the above points is in the affirmative for the following reasons: 12. The occurrence of the accident on 3/11/2015 and resultant death of Nandalal Surana involving Motorcycle bearing registration No.KA-29/V-9186 and NWKRTC Bus bearing registration No.KA-25/F-2988 is not in dispute. It is the contention of the Corporation that there is no fault on the part of the driver of the bus in question in causing the accident resulting in death of the deceased Nandalal Surana. It is true that the deceased rider of the motorcycle entered the main road from Mahesh Colony, which is a junction and intersection. It is the contention of the Corporation that there is no fault on the part of the driver of the bus in question in causing the accident resulting in death of the deceased Nandalal Surana. It is true that the deceased rider of the motorcycle entered the main road from Mahesh Colony, which is a junction and intersection. Spot of the accident is about 30 ft. away from said junction; the bus was coming from APMC side towards Daddennavar Cross. The driver of the bus ought to have been careful and it was the responsibility of the driver of the bus to slow down the bus at the junction and intersection. It appears that the driver of the bus was driving the bus in a high speed due to which, he could not control at the junction/intersection area. Moreover, charge sheet is filed against the driver of the bus in question. Even though the driver of the bus is examined as RW1, who is an interested witness, nothing much in support of contention of the appellant/NWKRTC is elicited. From Ex.P3-Spot Panchanama along with sketch map, it is clear that there was no fault on the part of the deceased, who was riding the motorcycle and entered the main road from Mahesh Colony. The Tribunal based on evidence and material on record rightly held that the accident had occurred due to sole negligence on the part of driver of the of NWKRTC bus in question. The said finding of the Tribunal is based on the material evidence on record and there is no error or perversity in the said finding. Thus, the contention of the appellant-NWKRTC with regard to contributory negligence cannot be accepted and same is rejected. Accordingly, Point No.1 is answered in the affirmative. 13. As regards the quantum of compensation, wife of the deceased examined as PW1 has deposed in her evidence that the deceased was doing business and earning Rs.20.00 lakhs per annum. Ex.P8 is the income tax return for the assessment year 2015-16 which discloses gross salary of the deceased for the assessment year 2015-16 as Rs.3, 33, 809.00 and the deceased had paid Rs.33, 000.00 towards income tax. The Tribunal based on material placed on record has rightly assessed income of the deceased at Rs.2, 97, 809.00 per annum, which in our view is just and proper and needs no interference. 14. The Tribunal based on material placed on record has rightly assessed income of the deceased at Rs.2, 97, 809.00 per annum, which in our view is just and proper and needs no interference. 14. There is no dispute with regard to the age of the deceased as 54 years, multiplier of 11 and also deduction of 1/4th towards personal expenses of the deceased. It is to be noticed that the Tribunal has added 15. % of the assessed income of the deceased towards future prospects. The deceased was aged 54 years and in terms of decision of Hon'ble Apex Court in Pranay Sethi (supra), the claimants would be entitled to addition of 10% of the assessed income towards future prospects. Accordingly, the claimants would be entitled for compensation on the head of loss of dependency at Rs.27, 02, 617.00 (Rs.2, 97, 809.00 + 10/100 x 11 x 3/4). 15. Further, 1st claimant being wife of the deceased is entitled to Rs.40, 000.00 towards spousal consortium, whereas 3rd and 4th claimants being children of the deceased would be entitled for Rs.40, 000.00 each towards parental consortium as held by the Hon'ble Apex Court in Magma General Insurance Company Limited (supra). Further, the Tribunal awarded a sum of Rs.15, 000.00 towards loss of estate and Rs.15, 000.00 towards funeral expenses and transportation of dead body, which is just and proper and same is not disturbed. Thus, the claimants would be entitled for modified compensation on the following heads: 16. The Tribunal committed an error in granting interest on the compensation amount from the date of judgment till realization. It is well settled law that on the compensation amount, normally, interest shall be awarded from the date of petition till realization. Therefore, in the instant case also, the claimants would be entitled to interest at 6% per annum from the date of petition till date of realization. 17. Thus, the claimants would be entitled to total compensation of Rs.28, 52, 617.00 as against Rs.28, 95, 460.00 awarded by the Tribunal. 18. Hence, we pass the following: ORDER a) Both appeals are allowed in part. b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.28, 52, 617.00 as against Rs.28, 95, 460.00 awarded by the Tribunal. 18. Hence, we pass the following: ORDER a) Both appeals are allowed in part. b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.28, 52, 617.00 as against Rs.28, 95, 460.00 awarded by the Tribunal. c) The entire compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization. d) The appellant-Corporation shall deposit the entire compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. e) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith along with original records. f) The apportionment, deposit and disbursement shall be made as per the award of the Tribunal. g) Draw modified award accordingly.