Karnataka High Court
Sri K Shivanna vs The M D Ksrtc on 27 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.540/2018 C/W
MFA NO.3163/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.540/2018 C/W
M.F.A.NO.3163/2018 (MV-D)
MFA NO.540/2018
BETWEEN:
SRI K SHIVANNA
AGED ABOUT 44 YEARS,
S/O KATAPPA
R/O KATANAYAKANAHALLY
HIRIYUR TALUK,
CHITHRADURGA DISTRICT - 577 511.
... APPELLANT
(BY SRI BHOJARAJA, ADVOCATE
PHYSICALY HEARING)
AND:
1 . THE M D KSRTC
K H ROAD,
SARIGE BHAVAN
BANGALORE
REPRESENTED BY DEPOT MANAGER
KSRTC,
CHITHRADURGA - 577 501.
2 . THE CHAIRMAN
INTERNAL SECURITY FUND KSRTC,
K H ROAD,
SARIGE BHAVAN
BANGALORE - 560 001.
... RESPONDENTS
(BY SRI. F.S. DABALI, ADVOCATE FOR R1 & R2)
2 MFA NO.540/2018 C/W
MFA NO.3163/2018
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
23.06.2017 PASSED IN MVC NO.295/2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE & ADDITONAL MACT, HIRIYUR.
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA NO.3163/2018
BETWEEN:
1. THE MANAGING DIRECTOR
KSRTC
K H ROAD, SARIGE BHAVAN
BENGALURU-560027
REPRESENTED BY DEPOT MANAGER
KSRTC, CHITRADURGA DEPOT-577 501
OWNER OF THE KSRTC BUS BEARING
REG NO.KA-06-F-0432
2. THE CHAIRMAN
INTERNAL SECURITY FUND
KSRTC, K H ROAD, SRIGE
BHAVAN BANGALORE-560027
BOTH THE APPELLANTS ARE
REPRESENTED BY IT'S CHIEF LAW OFFICER
...APPELLANTS
(BY SRI. F S DABALI, ADVOCATE, PHYSICALY HEARING)
3 MFA NO.540/2018 C/W
MFA NO.3163/2018
AND:
K SHIVANNA
S/O KATAPPA
AGED ABOUT 44 YEARS,
AGRICULTURIST
R/O KATANAYAKANAHALLY
HIRIYUR TALUK
CHITRADURGA DISTRICT-572143
...RESPONDENT
(BY SRI. BHOJARAJA, ADVOCATE, PHYSICALY HEARING)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:23.06.2017 PASSED IN MVC NO.295/2012 ON THE
FILE OF THE SENIOR CIVIL JUDGE, JMFC, ADDITIONAL
MACT, HIRIYUR, AWARDING COMPENSATION OF
RS.3,53,849/- WITH INTEREST AT 7.5% P.A FROM THE
DATE OF FILING OF PETITION TILL ITS ENTIRE
REALIZATION.
THESE M.F.As. COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.540/2018 is filed by the claimant challenging the judgment and award dated 23.06.2017 in MVC.No.295/2012 passed by the Senior 4 MFA NO.540/2018 C/W MFA NO.3163/2018 Civil Judge & JMFC, Hiriyur, for seeking enhancement of compensation.
MFA.No.3163/2018 is filed by the Karnataka State Regional Transport Corporation (for short "Corporation") questioning the death of the deceased due to the injuries and for reduction of compensation.
2. Brief facts of the case are that, on 02.04.2009 in the evening at about 7:00 p.m., KSRTC bus bearing No.KA-06-F-0432 dashed the deceased. As a result of which, the deceased sustained severe injuries and he was shifted to the hospital and ultimately, he succumbed to the injuries on 18.09.2009. Therefore, the claimant who is the son of the deceased had filed the claim petition under Section 166 of MV Act for seeking compensation. The Tribunal held that the deceased died due to the accidental injuries that occurred on 02.04.2009 and 5 MFA NO.540/2018 C/W MFA NO.3163/2018 awarded compensation of Rs.3,53,849/- with interest at 7.5% p.a.
3. Learned counsel for the Corporation submitted that, in the present case, the accident was caused on 02.04.2009 and death of the deceased was occurred on 18.09.2009. Therefore, there is gap of more than 5 months. Hence, the death is not due to the accidental injuries. Therefore, prays that the compensation awarded under the head loss of dependency cannot be awarded. Therefore, prays to allow the appeal filed by the Corporation.
4. On the other hand, learned counsel for the claimant submitted that the death of the deceased is due to the accidental injuries as deposed by the doctor and also it is proved from other medical evidence and post mortem report. Further the quantum of compensation awarded by the Tribunal is on the lesser side. Hence, prays for enhancement of 6 MFA NO.540/2018 C/W MFA NO.3163/2018 compensation by allowing the appeal filed by the claimant.
Regarding death of the deceased:
5. In the present case, the accident was caused on 02.04.2009 and the deceased died on 18.09.2009. Therefore, there is gap of nearly more than 5 months. Therefore, the deceased died after more than 5 months from the date of the accident. In the present case, the deceased died by sustaining the following injuries in the road traffic accident:
"lacerated wound of 5x1x0.5 cm., on the right side of forehead and bleeding was present, he found compound communated fracture of left thigh bone, compound fracture of left hand wrist and contusion of 4x4 cm., on the right shoulder".
6. Considering the rival submissions, the question arises as to whether the death of the 7 MFA NO.540/2018 C/W MFA NO.3163/2018 deceased is having nexus to the accidental injuries sustained by the deceased. It is an undisputed fact that the accident occurred on 02.04.2009 and death of the deceased was on 18.09.2009. Ex.P.6 is the post mortem report. In Ex.P.6-post mortem report, it is stated that death is due to cardio respiratory failure secondary to septicemia as a result of osteomyelitis. P.W.3 and P.W.4 are the doctors. P.W.3 is the doctor who has given treatment to the deceased in the hospital. P.W.3 had stated in his evidence as to what are the injuries sustained by the deceased in the accident and the details of treatment given to him.
7. It is the evidence revealed from the medical evidence including the evidence of the doctors that the deceased has taken prolonged treatment. But on 18.09.2009, the deceased died and it is the opinion of doctor -P.W.3 that the death of the deceased is due to cardio respiratory failure secondary to septicemia as a result of osteomyelitis following accidental 8 MFA NO.540/2018 C/W MFA NO.3163/2018 injuries. During the course of cross-examination of P.W.3, nothing is revealed to show that the deceased has not died due to the accidental injuries. P.W.4 is another doctor who has conducted post mortem on the body of the deceased. P.W.4 doctor has stated that he has noticed several injuries on the body and cause of death is due to cardio respiratory failure secondary to septicemia as a result of osteomyelitis. Therefore, it is the evidence of P.W.4-doctor that the deceased was severely infected. Therefore, it is the evidence of doctor- P.W.4 that due to the injuries sustained in the road traffic accident, the deceased died. During the course of cross-examination of doctor, nothing is proved that his evidence is found to be unbelievable.
8. Therefore, considering the evidence of doctors-P.W.3 and P.W.4 and other medical evidence i.e., wound certificate, discharge summary and post mortem report, it is proved that the deceased died 9 MFA NO.540/2018 C/W MFA NO.3163/2018 due to the accidental injuries. Therefore, even though, there is gap of more than 5 months between the date of accident and date of death, but death of the deceased is having nexus between the injury sustained in the road traffic accident. Therefore, it is held that the death of the deceased is due to the accidental injuries that occurred on 02.04.2009. Hence, in this regard, the Tribunal is correct, which needs no interference.
Regarding quantum of compensation:
9. The Tribunal after considering the facts and circumstances of the case and appreciation of evidence on record, awarded compensation under various heads as follows:
Loss of dependency Rs.3,03,600/-
Funeral expenses Rs.10,000/-
Loss of love and affection Rs.10,000/-
Medical expenses Rs.30,249/-
Total Rs.3,53,849/-
10 MFA NO.540/2018 C/W
MFA NO.3163/2018
10. The Tribunal has taken the notional income at Rs.3,000/- per month, which is on the lesser side. Considering the year of accident as 2009, since the deceased was an agriculturist and accordingly, as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority, a sum of Rs.5,000/- per month is to be taken into consideration as notional income of the deceased.
11. The Tribunal added 15% of income towards loss of future prospects in life, which is on the higher side. But as per the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi1, according to the age of the deceased as he was aged 55 years, additional income of 10% is to be added towards loss of future prospects in life. 1 (2017) 16 SCC 680 11 MFA NO.540/2018 C/W MFA NO.3163/2018
12. Learned counsel for the Corporation submitted that, since the claimant is a major son and only one claimant, therefore, 50% of income is to be deducted, but not 1/3rd towards personal and living expenses of the deceased. He places reliance on the judgment of this Court in the case of New India Assurance Co., Ltd., Rep. by Sr. Divisional Manager Vs. Sri David.T and Another2, wherein 50% of income is to be deducted on the ground that there was only one claimant.
13. Even though, in the present case, the claimant is only one person being the son of the deceased who is aged 38 years, but the deceased was aged 55 years as on the date of the accident and in the range of age group of the deceased as he was an agriculturist, he would not have retired from the agricultural work at that age. In the above stated case, the deceased was 60 years. Therefore, in the 2 ILR 2012 KAR 2859 12 MFA NO.540/2018 C/W MFA NO.3163/2018 above said case, 50% of income was deducted towards personal and living expenses, but in the present case, the deceased was 55 years as on the date of the accident and the claimant who is the son of the deceased is aged about 38 years. But the judicial note of the fact is that the deceased also survived not only by claimant being the son, but also by grand children. Therefore, 1/3rd of income would be deducted and it is correctly held by the Tribunal. Therefore, under these circumstances, making his contribution to the family consisting of grand children also, therefore, just because, there is only one claimant cannot be a ground to make 50% of deduction towards personal and living expenses. Therefore, under these circumstances, 1/3rd of amount would be deducted as it is made by the Tribunal correctly. The appropriate multiplier applicable is "11". Hence, loss of dependency is re-assessed and quantified as follows:
13 MFA NO.540/2018 C/WMFA NO.3163/2018
Rs.5,000/- + Rs.500/- (10% of Rs.5,000/-) = Rs.5,500/-
Rs.5,500/- x 2/3rd x 11 x 12=Rs.4,84,000/- Accordingly, Rs.4,84,000/- is awarded under the head loss of dependency.
14. The compensation of Rs.30,249/- awarded under the head medical expenses by the Tribunal is as per the actual bills produced. Hence, the same is kept in tact.
15. The compensation of Rs.10,000/- awarded under the head funeral expenses is on the lesser side and the same is enhanced to Rs.15,000/-.
16. The compensation of Rs.10,000/- awarded under the head loss of love and affection is on the lesser side and the same is enhanced to Rs.40,000/- 14 MFA NO.540/2018 C/W MFA NO.3163/2018
17. Thus, in all the appellant/claimant is entitled to the compensation as follows:
Loss of dependency Rs.4,84,000/-
Funeral expenses Rs.15,000/-
Loss of love and Rs.40,000/-
affection
Medical expenses Rs.30,249/- Kept in tact
Total Rs.5,69,249/-
18. The Tribunal has awarded compensation of Rs.3,53,849/-, but the appellant/claimant is entitled to total compensation of Rs.5,69,249/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.2,15,400/- (Rs.5,69,249/- - Rs.3,53,849/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.2,15,400/- along with interest at the rate of 6% per annum from the date of petition till the date of realization in addition to what has been awarded by the Tribunal.
19. The Tribunal has granted interest at 7.5% p.a., and the same is reduced to 6% p.a. insofar as 15 MFA NO.540/2018 C/W MFA NO.3163/2018 only rate of interest is concerned, the appeal filed by the KSRTC is liable to be allowed in part.
20. Accordingly, I proceed to pass the following:
ORDER MFA.NO.540/2018 filed by the claimant is allowed in part.
MFA.No.3163/2018 filed by the Corporation is allowed in part only to the extent of rate of interest is concerned.
The impugned judgment and award dated 23.06.2017 in MVC.No.295/2012 passed by the Senior Civil Judge & JMFC, Hiriyur, is modified to the extent that the claimant is entitled to enhanced compensation of Rs.2,15,400/- along with the rate of interest at 6% per annum from the date of petition 16 MFA NO.540/2018 C/W MFA NO.3163/2018 till the date of realization, in addition to what has been awarded by the Tribunal.
Draw award accordingly.
No order as to costs.
The appellant/claimant is not entitled for interest for the delay period of 103 days in filing the appeal.
The amount deposited by the Corporation shall be transmitted to the Tribunal along with TCR and a copy of this order forthwith.
Sd/-
JUDGE PB CT:DKS