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The Managing Director, Represented by Chief Law Officer v/s Savita & Others

    M.F.A. Nos. 20914, 20915, 20916 of 2012, 101470 of 2014 (MV)

    Decided On, 10 January 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellant: C.B. Patil, Advocate. For the Respondents: R1 & R3 Kushal V. Bolmal, Advocates.



Judgment Text

(Prayer: This Miscellaneous First Appeal is filed under section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated: 01.12.2011 passed in MVC. No.2905/2010 on the file of the Presiding Officer, Fast Track Court-III and Member, Addl. MACT, Belgaum, awarding the compensation of Rs.5,80,000/- with interest at the rate of 8% P.A. from the date of petition till its realization.This Miscellaneous First Appeal is filed under section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated:02-12-2011 passed in MVC. NO.2906/2010 on the file of the Presiding Officer, Fast Track Court-III and member, MACT, Belgaum, awarding the compensation of Rs.2,00,000/- with interest at the rate of 8% P.A. from the date of petition till its realization.

This Miscellaneous First Appeal is filed under section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated: 02-12-2011 passed in MVC. No.2907/2010 on the file of the Presiding Officer, Fast Track Court-III and Member, MACT, Belgaum, awarding the compensation of Rs.9,000/- with interest at the rate of 8% P.A. from the date of petition till its realization.

This Miscellaneous First Appeal is filed under section 17391) of the Motor Vehicles Act, 1988, against the judgment and award dated: 02-12-2011 passed in MVC. No.2905/2010 on the file of the Presiding Officer, Fast Track Court-III and Additional MACT, Belgaum, partly allowing the claim p

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etition for compensation and seeking enhancement of compensation)

1. M.F.A.Nos.20914, 20915 and 20916 of 2012 have been preferred by the appellant/corporation and M.F.A.No.101470 of 2014 has been preferred by the appellant/claimants. Being aggrieved by the judgment and award passed by Fast Track Court-III and Additional M.A.C.T. Belgaum (hereinafter referred to as ‘the Tribunal’, for short), in M.V.C.Nos.2905, 2906 and 2907 of 2010 dated 02.12.2011.

2. Though the matters are listed for orders, with the consent of the learned counsel appearing for the parties, the appeals are admitted and they are taken up for final hearing and disposed of by this judgment.

3. For the sake of convenience the parties are referred to as per their rankings before the Tribunal.

4. Brief facts of the case are that, on 15.12.2009 Shivanand Vibhuti, was riding a motorcycle bearing registration No.KA-22/V-2191 along with one Vinayaka and Gangappa as a pillion riders. When they came near Gobbargumpi village at about 3.00 p.m. at that time a K.S.R.T.C. bus bearing registration No.KA-17/F-658 came rashly and negligently and the driver of the bus lost the control and dashed to oncoming car and thereafter abruptly stopped the bus and the said motorcycle which was proceeding ahead came in contact with the said bus. As a result of the same the said Shivanandayya and the minor son died on the spot and his cousin brother Gangappa sustained grievous injuries. Immediately the said injured was shifted to hospital. It is further contended that the deceased Shivananda was working in Shivasai Fabricators, Auto Nagar, Belgaum as a skilled worker and was earning Rs.9,000/- per month. For having lost the bread earner, wife and child and mother-in-law filed the claim petition and for having lost the son, the mother has filed the claim petition and for having suffered injuries the injured Gangappa filed the claim petition. 5. In pursuance of the notice respondent appeared and filed his objections by denying the contents of the petition it is further contended that the owner and insurer of the car involved in the accident are necessary parties to the said proceedings, the claim petition is bad for on-joinder of necessary parties. He further contended that the alleged accident has solely occurred due to the rash and negligent act on the part of the driver of the car and due to the rash and negligent act on the part of the rider of the motorcycle and as such the respondent/corporation is not liable to pay any compensation. On these grounds he prayed for dismissal of the said petition.

On the basis of the above pleadings, the Tribunal framed the following issues:

Issues in M.V.C. No.2905/2010

1. Whether the petitioners prove that on 15/12/2009 deceased Shivanand Rachappa Vibhuti died in the accident due to rash and negligent driving of driver of KSRTC Bus bearing No.KA-17/F-658 as alleged in the petition?

2. Whether the petitioner is entitled for compensation?

3. What order or award?

Issues in M.V.C. No.2006/2010

1. Whether the petitioner proves that on 15/12/2009 when deceased Shivanand RAchappa Vibhuti along with the minor son Vinayak riding the motor cycle bearing No.KA-22/V-2191 near Gobbargumpi village on Navalgund-Shirkol road at 3.00 p.m. the on-going KSRTC bus bearing NO.KA-17/F-658 was driven in rash and negligent manner, endangering human life and public safely & dashed to on coming car and abruptly stopped thereby motorcycle came in contact with the bus as a result rider of the motor cycle Shivanand and his minor son Vinayak sustained fetal injuries as contended?

2. Whether the petitioner proves that the death of minor son Vinayak was because of consequences of impact and above accident?

3. Whether the petitioner is entitled for compensation? If so, what is the amount of compensation?

4. What order or award?

Issues in M.V.C. No.2907/2010

1.Whether the petitioner proves that on 15/12/2009 when the petitioner along with his cousin brother Shivanand were proceeding on Motor Cycle bearing No.KA-22/V-2191 towards Alagwadi on Navalgund Shirkol road near Gobargumpi village at 3.00 p.m. the on-going KSRTC bus hearing No.KA-17/F-658 was driven in rash and negligent manner endangering human life and public safety & dashed to on coming car and abruptly stopped the bus and as a result the motor cycle dashed to the bus and because of the said impact the pillion rider/petitioner sustained grievous injury all over the body as contended?

2. Whether the petitioner is entitled for compensation? If so, what is the amount of compensation?

3. What order or award?

In order to prove the case of petitioner, petitioner in M.V.C.No.2905 of 2010 was came to be examined as PW-1, petitioner in M.V.C.No.2907 of 2010 was came to be examined as PW-2 and got marked as Ex.P1 to P9. On behalf of respondents they have not led any evidence.

After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same appellants are before this Court.

6. The main grounds urged by the learned counsel for the appellant/corporation are that the compensation awarded by the Tribunal is on the higher side and the income taken is at the rate of Rs.125/- per day is without there being any basis. He further contended that the alleged accident has occurred due to the fault of the driver of the car as well as the rider of the motorcycle, this aspect has not been considered and appreciated by the Tribunal and totally fixed the liability on the corporation which is not sustainable in law. He further contended that the compensation awarded under the conventional head is on the higher side. On these grounds he prayed for allowing the appeal by setting-aside the impugned judgment and award.

10. Per contra, the learned counsel appearing on behalf of appellant/claimants have contended that the compensation awarded by the Tribunal is totally disproportionate and it is on the lower side and the same requires to be enhanced. He further contended that the Tribunal ought to have taken the income of the deceased at the rate of Rs.15,000/- per month and it has not considered the documents produced at Ex.P8, which clearly goes to show that some agricultural land was in the name of the deceased and he was earning more than what has been stated in the petition. He further contended that the compensation which has been awarded requires to be enhanced. On these grounds he prayed for allowing the appeal by enhancing the compensation.

8. The accident in question is not in dispute and so also the involvement of the offending vehicle insured with the corporation.

9. The first contention taken up by the learned counsel for the appellant is that though the driver of the car and the rider of the motorcycle have contributed to the alleged accident the said fact has not been considered and appreciated by the Tribunal in its right perspective. As could be seen from the judgment and award, in order to prove the fact that the drive of the K.S.R.T.C. bus was rash and negligent, petitioners have produced Ex.P1 certified copy of the F.I.R., Ex.P2 the certified copy of the complaint, Ex.P3 certified copy of the Panchanama and Ex.P6 certified copy of the charge sheet, all these documents clearly indicates the fact that the driver of the K.S.R.T.C. bus bearing registration No.KA-17/F-658 has been prosecuted for the rash and negligent act. Though, the corporation has taken up the contention that the driver of the car and the rider of the motorcycle have contributed to the alleged accident, surprisingly no witnesses have been examined on behalf of the corporation to substantiate the said contention and the contention of the corporation has remained as a contention without there being any proof. In the absence any such material, the finding given by the Tribunal that the alleged accident has taken place due to the rash and negligent act of driver of the K.S.R.T.C. bus is justifiable and there is no force in the arguments advanced by the learned counsel for the appellant/corporation in this behalf.

10. The second contention taken up by the learned counsel for the appellant/corporation is that the compensation awarded under the various head is on the higher side.

11. Per contra, the learned counsel appearing for the claimants contended that the compensation awarded is on the lower side.12. As could be seen from the judgment and award and other records, it is the contention of the petitioners that the deceased Shivanand was working in Shivasai Fabricators, Auto Nagar, Belgaum and was earning Rs.9,000/- per month. In this behalf, they got produced Ex.P7. In Ex.P7, it has been mentioned that the was getting a remuneration of Rs.6,000/- per month, but they have not examined the employer, who has issued Ex.P7 and as such the Tribunal has not believed the said fact and by taking the notional income at the rate of Rs.125/- per day and after deducting 1/3rd towards personal expenses of the deceased and after applying the multiplier 16 has awarded an amount of Rs.4,80,000/- towards the loss of dependency.

13. Though, under the normal circumstances, the said fact is justifiable. However, when the petitioners have failed to prove the income of the deceased then under such circumstances the Tribunal ought to have kept into view the year of the accident. The wages prevailing during that particular period. Admittedly, the accident is of year 2010 during that particular period, the notional income of Rs.5,500/- per month is the yardstick which used to be adopted even for settlement of cases before Lok-Adalat. If that were to be adopted and after deducting 1/3rd and after applying the multiplier of 16 then the appellants/claimant are entitled to an amount of Rs.7,04,064/- [5,500 minus 1/3rd = 3666.66 ( it is rounded of to Rs.3,667) 3,667 x 12 x 16] towards loss of dependency.

14. Apart from that the Tribunal has awarded an amount of Rs.1,00,000/- under the conventional head. In view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157, that the compensation awarded under the conventional head is also appears to be not on the higher side and the same requires to be confirmed.

15. In ali, the appellants/claimants in M.F.A.No.101470 of 2014 (M.V.C.No.2905 of 2010) are entitled a total compensation of Rs.8,04,064/-. Since the Tribunal ha awarded an amount of Rs.5,80,000/-, after deducing the same, the appellants/claimants are entitled to an additional compensation ofRs.2,24,064/- with interest at the rate of 8% per annum. 16. As could be seen from the judgment and award passed in M.V.C.No.2906 of 2010 therein, the mother of the deceased has filed the claim petition. As could be seen from the judgment and award and other records, the deceased was aged about 04 years at the time of the accident and keeping in view the said facts and circumstances, the Tribunal has awarded an amount of Rs.2,00,000/- globally and petitioner has not challenged the judgment and award. In view of the decision of the Hon’ble Apex Court quoted supra, in the case of minor, if the notional income of Rs.15,000/- per annum is taken and multiplier of 15 is applied then under such circumstances, the compensation awarded by the Tribunal appears to be just and proper and it does not appears to be on the higher side and as such the same is confirmed.

17. Insofar as the judgment and award in M.V.C.No.2907 of 2010 is concerned therein the petitioners has produced the wound certificate as per Ex.P9, therein he has sustained abrasion to right elbo and abrasion on left knee and keeping in view the injuries sustained by the injured a global compensation of Rs.9,000/- has been awarded. By taking into consideration the injuries and the compensation awarded appears to be just and proper. 18. Be that as it may, as per Section 173(2) of The Motor Vehicles Act, that 'No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees'. IN that light, the appeal will not sustainable in law and the same is liable to be dismissed.

19. Keeping in view the above said facts and circumstances, M.F.A.No.20914, 20915 and 20916 of 2012 have been dismissed as devoid of merits and appeal in M.F.A.No.101470 of 2014 is allowed in part. The impugned judgment and award, dated 02.12.2011, passed by the Tribunal in M.V.C.No.2905 of 2010 is modified as indicated above.

20. The corporation is directed to deposit the enhanced compensation with up-to-date interest within a period of six weeks from the date of receipt of a certified copy of this order. While depositing the compensation amount the corporation shall deduct the interest for the delayed period.

21. The amount in deposit may be transmitted to the jurisdictional Tribunal and send back the lower Court records forthwith.

Registry is directed to draw the award accordingly.

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