Karnataka High Court
Smt Sumithramma vs Smt Shankaramma on 19 January, 2021
Bench: Alok Aradhe, Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.4697 OF 2015
C/W
M.F.A. NO.5527 OF 2014 & M.F.A. NO.5528 OF 2014 (MV-D)
M.F.A. NO.4697 OF 2015
BETWEEN:
SMT. SUMITHRAMMA
W/O LATE S.N. VENKATARAVANAPPA
AGED ABOUT 42 YEARS
R/AT. SHEEGALAPALYA VILLAGE
SRINIVASAPURA TALUK
KOLAR DISTRICT.
... APPELLANT
(BY MR. GOPAL KRISHNA N, ADV.,)
AND:
1. SMT. SHANKARAMMA
W/O LATE S.N. VENKATARAVANAPPA
AGED ABOUT 41 YEARS.
2. MASTER SRINATHA
S/O LATE S.N. VENKATARVANAPPA
AGED ABOUT 16 YEARS.
2
3. SMT. CHOWDAKKA
@ BOYI CHOWDAKKA
W/O LATE NARAYANAPPA
AGED ABOUT 67 YEARS.
2ND MINOR RESPONDENT IS
REPRESENTED BY NATURAL
GUARDIAN/MOTHER
1ST RESPONDENT HEREIN.
ALL ARE RESIDING AT
SHEEGALAPALYA VILLAGE
SRINIVSAPURA TALUK
KOLAR DISTRICT.
4. THE MANAGING DIRECTOR
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H.ROAD
SHANTHINAGAR, BANGALORE-27.
... RESPONDENTS
(BY MR. RAME GOWDA, ADV., FOR R1 TO R3
R2 MINOR REP. BY R1
MR. D. VIJAY KUMAR, ADV., FOR R4)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED
IN MVC NO.3027/2013 ON THE FILE OF THE 19TH ADDITIONAL
SMALL CAUSES JUDGE, 41ST ACMM, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.5527 OF 2014
BETWEEN:
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR, BANGALORE
BY ITS MANAGING DIRECTOR.
... APPELLANT
(BY MR. D. VIJAYA KUMAR, ADV.,)
3
AND:
1. SMT. SUMITHRAMMA
W/O LATE S.N. VENKATARAVANAPPA
AGED ABOUT 41 YEARS.
2. SMT. SHANKARAMMA
W/O LATE S N VENKATARAVANAPPA
AGED ABOUT 40 YEARS.
3. MASTER SRINATH
S/O LATE S N VENKATARAVANAPPA
AGED ABOUT 15 YEARS.
RESPONDENT NO.3 IS MINOR
REP BY MOTHER AND NATURAL GUARDIAN
SMT. SHANKARAMMA THE 2ND RESPONDENT.
4. SMT. CHOWDAKKA @ BOYI CHOWDAKKA
W/O LATE BOYI NARAYANAPPA
AGED ABOUT 67 YEARS.
ALL ARE R/AT. NO.349
ULLAL UPANAGAR
AMBEDKAR NAGAR
8TH CROSS, BANGALORE 560056.
PRESENT ADDRESS OF RESPONDENTS
NO.1, 2 & 3, NO.19, SHIGALAPALY VILLAGE
SRINIVASAPURA TALUK
KOLAR DISTRICT.
... RESPONDENTS
(BY MR. GOPALAKRISHNA N, ADV., FOR R1
R2 SERVED
R3 IS MINOR REP. BY R2
R4 SERVED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED
IN MVC NO.3027/2013 ON THE FILE OF THE XIX ADDL. SCJ, MACT
& XLI ACMM, BANGALORE, AWARDING COMPENSATION OF RS.
9,49,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
4
M.F.A. NO.5528 OF 2014
BETWEEN:
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR, BANGALORE
BY ITS MANAGING DIRECTOR.
... APPELLANT
(BY MR. D. VIJAYA KUMAR, ADV.,)
AND:
1. SMT. SHANKARAMMA
W/O LATE S N VENKATARAVANAPPA
AGED ABOUT 39 YEARS.
2. SMT. ROOPA
W/O SRI. NARAYANASWAMY
D/O LATE S.N. VENKATARAVANAPPA
AGED ABOUT 21 YEARS.
3. SRINATH
S/O LATE S N VENKATARAVANAPPA
AGED ABOUT 14 YEARS.
RESPONDENT NO.3 IS MINOR
REP BY MOTHER AND NATURAL GUARDIAN
SMT SHANKARAMMA THE 1ST RESPONDENT.
4. SMT. CHOWDAKKA @ BOYI CHOWDAKKA
W/O LATE BOYI NARAYANAPPA
AGED ABOUT 76 YEARS.
ALL ARE RESIDING AT: NO.349
ULLAL UPANAGAR
AMBEDKAR NAGAR
8TH CROSS, BANGALORE-560056.
PRESENT ADDRESS OF
RESPONDENTS NO.1, 2 & 3
NO.19, SHIGALAPALY (V) (DIST)
5
SRINIVASAPURA TALUK
KOLAR DISTRICT.
... RESPONDENTS
(BY MR. K. RAME GOWDA, ADV., FOR R1 TO R4)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED
IN MVC NO.4415/2013 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE & XLI ACMM, MACT, BANGALORE,
AWARDING COMPENSATION OF RS.9,49,000/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.4697/2015 has been filed by the claimants seeking enhancement of the amount of compensation, whereas, M.F.A.No.5527/2015 and M.F.A.No.5528/2015 have been filed by the Karnataka State Road Transport Corporation (hereinafter referred to as 'the KSRTC' for short) under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) against the judgment dated 06.05.2014 passed by the Motor Accident Claims Tribunal. Since, all these appeals arise out of the same accident and from the same judgment, they were 6 heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.01.2013, the deceased SN Venkataravanappa was walking alongside the mud path near Sheegalapalya Gate, Bangalore-Madanpalli Road. At that time, a KSRTC bus bearing Registration No.KA-40-F-808 which was being driven by its driver in a rash and negligent manner, came from the opposite direction and dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants in M.F.A 4697/2015 thereupon filed a petition namely M.V.C 3027/2013 under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 45 years at the time of accident and was engaged as a coolie and was earning a sum of Rs.10,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of 7 the bus by its driver. The claimants claimed compensation to the tune of Rs.25,00,000/- along with interest.
4. The KSRTC filed written statement, in which the mode and manner of the accident was denied. It was pleaded that the accident occurred on account of the negligence of the deceased himself in crossing the road. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 and claimant No.2 in MVC 3027/2013 examined themselves as PW-1 and PW-2 and got exhibited documents namely Ex.P1 to Ex.P18. The respondents examined Erappa as RW1 and no documents were marked on behalf of the respondents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the KSRTC bus by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained injuries 8 and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.9,49,000/- along with interest at the rate of 6% per annum. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
6. Learned counsel for the KSRTC submitted that the Tribunal grossly erred in not attributing negligence on the part of the deceased in causing the accident when RW 1 Erappa, who is an eye witness to the accident, has clearly stated in his evidence that the accident has occurred on account of negligence of the deceased himself in crossing the road. It is further submitted that the evidence on record indicates that the deceased was under the influence of alcohol and was crossing the road at a spot where there was admittedly no zebra crossing. It is also submitted that the Tribunal erred in deducting 1/4th towards personal expenses instead of 1/3rd when it is clear that claimant No.1 in MVC No.3027/2013 who is the second wife of the deceased and claimant No.2 in MVC 4415/2013 who is the married daughter of the deceased are not dependants on the income 9 of the deceased. It is also urged that the Tribunal erred in applying the multiplier of '14' instead of '13' when Ex.P15 Ration card clearly indicates that the age of the deceased is 48 years.
7. On the other hand, learned counsel for the claimants submitted that the Tribunal has grossly erred in assessing the income of the deceased at Rs.5,000/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further submitted that the claimant no.1 and 2 in MVC No.4415/2013 are not entitled to compensation as they are not dependant on the income of the deceased. It is also urged that the sums awarded under the heads 'loss of consortium' and 'funeral expenses' are on the lower side and deserves to be enhanced suitably.
8. We have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding 10 the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other's negligence. [See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. The Supreme Court in 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other's negligence. The finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: 'MINUROUT VS. SATYA 11 PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND 'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [SEE:
'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES', (2009) 14 SCC 71].
9. In the instant case, the claimants have examined themselves to prove their case. Ex.P1 FIR, Ex.P2 Complaint and Ex.P5 Chargesheet have been filed against the driver of the KSRTC bus. Ex.P3 Panchanama describes the spot of accident. It is also pertinent to note that though the KSRTC has taken the plea of contributory negligence on the ground that the deceased was under the influence of alcohol at the time of the accident, no evidence except for the self serving testimony of the driver of the offending bus is adduced to substantiate the plea of contributory negligence. Therefore, the Tribunal has on meticulous appreciation of evidence on record and on the basis of preponderance of probabilities 12 has rightly held that that the accident occurred on account of negligence of the driver of the KSRTC bus.
10. Now we may advert to the quantum of compensation. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. Therefore, the notional income of the deceased is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2013, notional income comes to Rs.8,000/- per month. In view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.10,000/-.
11. The tribunal has rightly considered the claimant no.1 in MVC 4415/2013 and claimant No.1 in MVC 3027/2013 to be the wives of the deceased on the basis of Ex.P10 Voter ID, Ex.P15 Ration card and Ex.PP7 marriage Certificate. Admittedly, claimant No.2 Roopa in MVC 4415/2013 is married and not dependant on the income of 13 the deceased. Since, the number of dependants are 4, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.7,500/-. Ex.P15 Ration card discloses that the age of the deceased to be 48 years in the year 2013, therefore the multiplier of '13' has to be adopted. Therefore, the claimants are held entitled to (Rs.7,500x12x13) i.e., Rs.11,70,000/- on account of loss of dependency.
12. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.2,00,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a 14 total compensation of Rs.14,00,000/-. Since the accident is of the year 2013, the prevailing rate of interest for the year 2013 in respect of fixed deposits for one year in nationalized banks being 8%, the aforesaid amounts of compensation shall carry interest at the rate of 8% from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified. The amount on deposit, if any, shall be transmitted to the Tribunal.
Accordingly, the appeals are disposed of.
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JUDGE Sd/-
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