Karnataka High Court
Shri Patalappa vs The Managing Director on 25 January, 2024
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NC: 2024:KHC:3982
MFA No. 5089 of 2013
C/W MFA No. 6073 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 5089 OF 2013 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6073 OF 2013 (MV-I)
IN MFA.NO.5089/2013
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT
CORPORATION,
CENTRAL OFFICE, K. H. ROAD,
SHANTHINAGAR,
BANGALORE - 560 027,
REPRESENTED BY ITS MANAGING DIRECTOR.
...APPELLANT
(BY SRI. D.VIJAYA KUMAR., ADVOCATE)
Digitally
signed by AND:
BHARATHI S
Location:
HIGH COURT SRI. PATALAPPA,
OF S/O GULLANNA,
KARNATAKA AGED ABOUT 52 YEARS,
R/O T. AGRAHARA,
THARAHUNSE,
BANGALORE - 562 157.
...RESPONDENT
(BY SRI.SHRIPAD V.SHASTRI., ADVOCATE)
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NC: 2024:KHC:3982
MFA No. 5089 of 2013
C/W MFA No. 6073 of 2013
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.03.2013 PASSED IN MVC
NO.1092/2012 ON THE FILE OF THE XI ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING
COMPENSATION OF `.17,78,788/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.NO.6073/2013
BETWEEN:
SHRI. PATALAPPA,
S/O GULLANNA,
AGED ABOUT 53 YEARS,
T. AGRAHARA,THARAHUNSE,
BANGALORE-562 157.
...APPELLANT
(BY SRI.SHRIPAD V.SHASTRI .,ADVOCATE)
AND:
THE MANAGING DIRECTOR,
KSRTC, SHANTHINAGAR,
DOUBLE ROAD,
BANGALORE - 27.
...RESPONDENT
(BY SRI.D.VIJAYKUMAR., ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.03.2013 PASSED IN MVC
NO.1092/2012 ON THE FILE OF THE XI ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:3982
MFA No. 5089 of 2013
C/W MFA No. 6073 of 2013
JUDGMENT
MFA No.6073/2013 is filed by the claimant, and MFA No.5089/2013 is filed by the KSRTC. In both the appeals the judgment and award dated 12.03.2013 passed in MVC No.1092/2012 by the Court of Small Causes, MACT, Bengaluru (SCCH-12)1 is under challenge. Hence, both the appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 23.10.2011 when he was riding motorcycle on the left side of the Doddaballapura Bangalore road near Mamatha Petrol Bunk, at that time, the bus owned by the respondent2 came in a high speed, rash and negligent manner and hit the motorcycle from behind causing the accident in question as a result of which, the rider of the motorcycle sustained grievous injuries and succumbed to the same. 1 Hereinafter referred as to 'Tribunal' 2 Hereinafter referred to as 'KSRTC' -4- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013
4. Claiming compensation for the death of the deceased, the claim petition is filed arraying the Corporation as respondent. The claim proceeding was contested by the KSRTC. The claimant examined himself as PW.1 and the employer of the deceased was examined as PW.2. Exs.P1 to P4 were marked in evidence. The driver of the bus was examined as RW.1. Exs.R1 and R2 were marked in evidence. The Tribunal by judgment and award dated 12.03.2013 a sum of `17,78,788/- together with interest at 6% per annum and directed the respondent Corporation to pay the compensation award. Being aggrieved, the present appeals are filed.
5. Learned counsel for the KSRTC vehemently contends that the deceased who was riding the motorcycle was talking on his mobile phone and suddenly entered the main road from the Mamatha Petrol Bunk from the left side mud road, lost control of his vehicle and fell down on the road when it hit the left side back wheel of the bus and hence died in the said accident. He further submits that -5- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 the said contention has been taken by the KSRTC in its statement of objections and the driver of the bus having been examined as RW.1, the Tribunal without appreciating the same has erroneously held that the driver of the bus was entirely negligent in causing the accident in question. Hence, he seeks for setting aside of the said finding. He further submits that the quantum of compensation awarded is on the higher side and seeks for reduction of the compensation awarded.
6. Per contra, learned counsel appearing for the claimant submits that the case of the KSRTC is that the deceased while speaking on the mobile phone entered the main road has been putforth only by the KSRTC and there is no other material on record which discloses the said facts and the said case is an imaginative one being stated only to over come the fact of rash and negligent driving of the driver of the bus. Hence, he submits that the Tribunal having examined the said aspect to the matter and appreciated to the relevant material on record, the finding -6- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 of the Tribunal regarding the same is just and proper and not liable to be interfered with. It is further submitted that the assessment of the income of the deceased by the Tribunal is erroneous as also the quantum of compensation on other heads requires to be enhanced.
7. The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The question that arises for consideration are:
"(i) Whether the finding of the Tribunal on the question of negligence is erroneous and liable to be interfered with?
(ii) Whether the quantum of compensation awarded is liable to be enhanced?"
Regarding question No.(i) :
8. It is forthcoming that as against the case of the claimant that the accident in question has been caused due to the rash and negligent driving of driver of the bus, the KSRTC in its statement of objections has averred that -7- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 the accident was caused due to the deceased entering the main road from the mud road near Mamatha Petrol Bunk while talking in the mobile phone and losing control of the bike when he fell down and touched the rear wheel of the bus causing the accident. The driver of the bus has been examined as RW.1 and in his affidavit by way of examination in chief he has also deposed the same. In his cross-examination he has stated that he tried to lodge a complaint, but the police have not received the complaint. Further he denied the suggestion that he was driving the bus in a high speed. Further, to a question that he ran away after the accident from this spot, the driver states that since the public assaulted him, he ran away from the spot. Further he denied the suggestion that the accident occurred due to his negligence, which provoked the public to assault him and damage the bus.
9. The Tribunal, appreciating the oral and documentary evidence on record has noticed that, the KSRTC has not placed any evidence to show that the -8- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 accident was caused due to the negligence of the rider of the motorcycle and hence, recorded the finding that the accident was caused due to the negligence of driver of the bus.
10. It is relevant to note that apart from the testimony of RW.1 and the statement of objections filed by the KSRTC, in none of the police records which are placed on record, the aspect regarding the deceased entering the main road from the mud road while talking on the mobile phone is forthcoming. It is also pertinent to note that due to the accident in question the public on the spot had damaged the bus and assaulted the driver. Nothing prevented the KSRTC or the driver of the bus from placing on record its version of the manner in which the accident occurred before the police authorities by filing a complaint with regard to the accident in question to enable the police authorities to investigate the matter. The say of the driver of the bus that the police authorities refused to receive the complaint is ex-facie liable to be rejected as nothing -9- NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 prevented the officials of the KSRTC to lodge a complaint with the higher/superior police officials.
11. Having regard to the same and having regard to the fact that the version of the KSRTC as to the manner in which the accident occurred having been placed in the claim Proceedings for first time and the same not forthcoming from any other material on record, the finding of the Tribunal regarding negligence is just and proper and no interference with the same is warranted in the present appeal. Hence, the question No.1 framed for consideration is answered in the Negative.
Regarding question No.(ii) :
12. With regard to the quantum of compensation it is forthcoming that the deceased was aged 28 years and hence the Tribunal has assessed the multiplier as '17' which is just and proper.
13. The deceased was stated to be a fitter working in a Company Rittal India Private Limited. The representative of the employer has been examined as PW.2. The Pay slip
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 of the deceased for the month of September-2011 has been produced as Ex.P8 and P29. Ex.P8 is a computer print out and Ex.P29 has been attested by PW.2. It is forthcoming from the same that the fixed gross salary of the deceased is `11,463/- and the other variable earnings would make the income as `18,261/-. The deductions amounts `2,055/-. The Tribunal appreciating the same has assessed the monthly income at `11,463/- as per the fixed earnings. The finding of the Tribunal that the variable earnings are not required to be included is just and proper. However, with regard to the deductions, the professional tax of `200/- is the only aspect that is required to be deducted. The other heads of deduction are required to be considered while assessing the income of the deceased. Hence, the other deductions apart from the professional tax is `1,855/-, is required to be added to the income of the deceased. In view of the same, the income of the deceased is reassessed as (`11,463 + `1,855)= `13,318/-.
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013
14. 50% of the same income is required to be added towards future prospects having regard to the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LTD V/S PRANAY SETHI AND ORS3. Hence, the income for the purpose of assessment of loss of earning capacity would come to (`13,318 + `6,659)= `19,977/-.
15. Learned counsel for the KSRTC vehemently contends that the future prospects are required to be taken as 40% and as against 50% assessed by the Tribunal since the employment of the deceased was not fixed and it can be terminated at any time. The said contention is ex-facie untenable and liable to be rejected having regard to the fact that the letter of appointment of the deceased (Ex.P26) discloses that he has been appointed on 26.03.2007 itself and subsequently it is forthcoming from Ex.P27 that his employment has been confirmed on 01.04.2008 and the deceased had also been 3 (2017)16 SCC 680
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 re-designated as forthcoming in Ex.P28. Further it is also relevant to note that from the date of his appointment, the monthly remuneration of the deceased has periodically increased.
16. Admittedly the deceased was a bachelor, hence 50% is required to be deducted towards personal expenses. Hence, the income is assessed as (19,977÷2)= `9,989/-. The loss of dependency is assessed as (9,989x12x17)=`20,37,756/- as against `17,53,788/- awarded by the Tribunal.
17. The Tribunal has awarded compensation towards love and affection at `10,000/-, `10,000/- towards loss of estate and funeral expenses at `5,000/-, which compensation is required to be reassessed. Having regard to the judgment Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY. LTD. V/S NANU RAM ALIAS CHUBRU RAM AND ORS4, loss of consortium is required to be re-assessed by awarding `40,000/- and 4 (2018) 18 SCC 130.
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 `15,000/- each is required to be awarded towards the loss of estate and funeral expenses.
18. Accordingly, the total compensation under various heads is re-assessed as follows:
Sl. Heads Amount awarded Amount awarded No. by the Tribunal by this Court (`) (`)
1. Loss of dependency 1753788.00 2037756.00
2. Loss of love and 10000.00 0.00 affection
3. Loss of estate 10000.00 15000.00
4. Transportation 5000.00 15000.00 Funeral and obsequies expense
5. Loss of consortium 00.00 40000.00 Total 1778788.00 2107756.00
19. Hence, the claimant is entitled for enhanced compensation of (`21,07,756 - `17,78,788) `3,28,968/- rounded off to `3,29,000/- together with interest at 6% p.a.
20. In view of the aforementioned, the following:
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 ORDER
i) MFA No.5089/2013 filed by the KSRTC is dismissed;
ii) MFA No.6073/2013 filed by the claimants is partly allowed;
iii) The judgment and award dated 12.03.2013 passed in MVC No.1092/2012 by the Court of Small Causes, MACT, Bengaluru (SCCH-12), is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered.
iv) KSRTC shall be liable to pay the enhanced compensation of `3,29,000/- together with interest at 6% per annum from the date of petition till date of the order in addition to the compensation awarded by the Tribunal;
v) The amount deposited by the appellant in MFA No.5089/2013 before this Court be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal;
vi) The appellant in MFA No.5089/2013 - the KSRTC is directed to deposit the balance
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NC: 2024:KHC:3982 MFA No. 5089 of 2013 C/W MFA No. 6073 of 2013 compensation together with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment;
vii) The apportionment, disbursement and deposit of the enhanced compensation shall be as per the award of the Tribunal.
viii) The Registry to draw the modified decree accordingly.
ix) No costs.
SD/-
JUDGE
RMS
List No.: 1 Sl No.: 32.