Karnataka High Court
Gundappa And Ors vs The Divisional Controller/Manager on 10 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.202111/2019 (MV)
BETWEEN
1. GUNDAPPA S/O BHEEMRAO KHADKE,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: HOLSAMUDRA VILLAGE, TQ: AURAD-B,
DIST: BIDAR, NOW AT H. NO: 17-4-507,
GURU NIVAS, NEAR MOUNESHWAR TEMPLE,
CMC COLONY, OPP: GUMPA, BIDAR-584501.
2. RAJKUMAR S/O GUNDAPA KHADKE
AGE: 44 YEARS, OCC: ADVOCATE,
3. SHIVKUMAR S/O GUNDAPA KHADKE
AGE: 44 YEARS, OCC: OVT. SERVICE,
4. SANJEEVKUMAR S/O GUNDAPA KHADKE
AGE: 42 YEARS, OCC: AGRICULTURE,
5. REKHA D/O GUNDAPA KHADKE
AGE: 38 YEARS, OCC: HOUSEHOLD,
ALL R/O DEVAN HIPPARGA, TQ: UDGIR,
DIST: LATUR, MAHARASHTRA.
...APPELLANTS
(BY SRI SANTOSH BIRADAR, ADVOCATE)
2
AND
THE DIVISIONAL CONTROLLER/MANAGER
OF NEKRTC, OLD BUS-STAND, BIDAR-585401.
...RESPONDENT
(BY SRI S.M.PATIL, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING
THAT THIS HON BLE COURT MAY BE PLEASED TO ALLOW
THE APPEAL, MODIFY THE IMPUGNED JUDGMENT AND
AWARD DATED 02.11.2017 PASSED BY THE COURT OF
THE ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, BIDAR
IN MVC NO.136/2016 AND ENHANCE THE COMPENSATION
AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988 (for short 'M. V. Act') by the claimants aggrieved by the judgment and award dated 02.11.2017 passed in MVC.No.136/2016 on the file of Additional Senior Civil Judge and Additional MACT at Bidar. 3
02. Facts leading up to filing of the present appeal are that on 15.02.2015 the deceased Sushilamma the wife of claimant No.1 and mother of claimant Nos.2 to 5 was traveling in a Cruiser Jeep bearing Reg.No.KA-48/M-916 for the purpose of Darshan of Revanshiddeshwar Temple. When the Jeep reached near Hallikhed-K Wadi village, the same was stopped by the side of the road to attend the nature call and thereafter, proceeded towards Jeep, at that time a KSRTC Bus bearing Reg.No.KA-38-F-889 came in a rash and negligent manner and dashed deceased - Sushilamma and she sustained fatal injuries. The said Sushilamma died due to serious injuries on 16.02.2016.
03. Thereupon the claimant No.1 - husband and children of the deceased - Sushilamma filed a claim petition under Section 166 of the M. V. Act seeking compensation in a sum of `.19,00,000/- along with interest at the rate of 18% p.a. on the premise that the deceased was aged about 65 years and was hale and healthy. The deceased was earning `.8,000/- per month 4 from agricultural activities apart from rendering household services. That in view sudden demise of the deceased the claimants have suffered mentally and financially.
04. Upon service of notice the respondent - corporation appeared through its learned counsel and filed statement of objections denying the claim petition averments. The respondent has also denied the age, income and occupation of the deceased. That it is contended that the claim made by the claimants is baseless and exorbitant, as deceased was in excess of 70 years as on the date of death. It is further contended that the accident had occurred due to negligence on the part of the deceased while crossing the road. Hence, sought for dismissal of the claim petition.
05. The Tribunal based on the pleadings of the parties, framed issues and recorded evidence. The claimant No.2 examined himself as PW.1 and marked six documents as Exs.P1 to 6. On behalf of the corporation one witness examined as RW.1 and no documents were marked.
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06. The Tribunal based on the pleadings and evidence on record held that the accident in question occurred due to rash and negligent driving of the bus by its driver causing death of deceased - Sushilamma. Consequently, the Tribunal held that the claimants are entitled for a total compensation of `.3,60,000/- along with interest at the rate of 6% p.a. from the date of petition till payment under the following heads:-
Sl. Heads Amount
No.
01. Love and affection `.0,50,000/-
02. Towards loss of estate `.0,50,000/-
03. Towards funeral expenses `.0,20,000/-
04. Towards loss of dependency `.2,40,000/-
Total `.3,60,000/-
07. The Tribunal while awarding the compensation directed the respondent to deposit the compensation amount within two months from the date of judgment.
08. Being aggrieved by the aforesaid judgment and award, the claimants are before this Court seeking enhancement of compensation.
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09. The learned counsel for the appellants - claimants reiterating the grounds urged in the appeal memorandum submitted that the Tribunal has erred in assessing the notional income of the deceased at `.6,000/- per month even while the deceased was earning `.8,000/- per month from agricultural activities apart from household services. He further submitted that the Tribunal erred in applying multiplier at 5 instead of 7 by taking into consideration the age of the deceased at 65 years. He further submits that the Tribunal erred in not awarding the compensation under the conventional heads. He also contended that the Tribunal erred in deducting the amount at 1/3rd towards personal and living expenses of the deceased which ought to have 1/4th considering the numbers of family members of the deceased.
10. Per contra, the learned counsel for the insurance company submitted that no material is produced by the claimants to justify the claim of income. That compensation awarded by the Tribunal under the 7 conventional heads is just and proper, in view of the fact that the claimant No.2 is an advocate, claimant No.3 is employed in a private service and claimants No.4 and 5 are not the dependents of the deceased. He further submitted that the deceased was 65 years cannot be entitled to carry out agricultural activities as mentioned in the claim petition. Hence, sought for dismissal of the claim petition.
11. Heard the learned counsel for the parties and perused the records. The only point that arise for consideration are:
Whether the claimants have made out a case for enhancement of compensation?.
12. The accident in question resulting the death of the deceased is not in dispute. Though claimants have contended that the deceased was earning `.8,000/- per month from agricultural activities in addition thereof was 8 doing household services, but no material has been produced in that regard. The Tribunal under the circumstances has assessed the notional income of the deceased at `.6,000/- per month. This Court, in the absence of any material with regard to income of the victims of road traffic take into consideration the chart prepared by Karnataka State Legal Services Authority. According to which the notional income of the victim of road traffic accident occurred in the year 2016 is fixed at `.8,750/- per month. In the instant case the accident was occurred on 15.02.2016. Therefore, the notional income has to be taken into consideration at `.8,750/- per month instead of `..6,000/- per month as considered by the Tribunal. The deceased was aged about 65 years and proper multiplier applicable at 7 instead of 5 as applied by the Tribunal.
13. The learned counsel for the appellants submitted that the claimants being dependants, the deduction of 1/4th be taken into consideration instead of 9 1/3rd which has been strongly opposed by the corporation. It is seen from the records that claimant No.1 is the husband of the deceased and claimant No.2 is practicing advocate and claimant No.3 is rendering service in private sector and claimants No.4 and 5 being independent. The Tribunal has deducted 1/3rd and assessed the income towards personal and living expenses. Taking into consideration these aspects of the matter more particularly nature of occupation of claimants, age of deceased and in the facts and circumstances of this matter the deduction of 1/3rd made by the Tribunal towards personal and living expenses of the deceased is maintained is just and proper. Thus, calculating as above, the loss of income of the deceased would be `..4,90,000/- (`.8,750/- minus 1/3rd = `.5,834 x 12 x 7).
14. As regards the award of compensation under the conventional heads, in view of the law laid down by the Ho'ble Supreme Court in the case of Magma General Insurance Company Limited vs Nanu Ram Alias 10 Chuhru Ram and others reported in (2018) 18 SCC 130 and in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur and others reported in 2020 SCC Online SC 410, the claimant No.1 - husband of the deceased is entitled for `.40,000/- towards spousal consortium and respondent No.4 and 5 are entitled for `.40,000/- each towards filial consortium. In addition the claimants are entitled for `.15,000/- towards funeral expenses and `.15,000/- towards loss of estate. Therefore, the compensation awarded by the Tribunal deserves to be re-determined and re-calculated as follows:-
Sl. Awarded by the Enhanced by this
Heads
No. Tribunal Court
01 Love and affection `.0,50,000/- `.0,50,000/-
02 Towards loss of estate `.0,50,000/- `.0,15,000/-
03 Towards funeral `.0,20,000/- `.0,15,000/-
expenses
04 Towards loss of `.2,40,000/- `.4,90,000/-
dependency
05 Towards loss of spousal - `.1,20,000/-
and filial (Rs.40,000x3)
Total `.3,60,000/- `.6,90,000/-
15. In the result, the following;
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ORDER
(i) The MFA.No.202111/2019 filed by the
appellants - claimants is partly allowed.
(ii) The judgment and award dated 02.11.2017 passed in MVC No.136/2016 on the file of Additional Senior Civil Judge and Additional MACT at Bidar is modified.
(iii) The claimants are held entitled for a total compensation of `.6,90,000/- together interest at the rate of 6% p.a. from the date of claim petition till payment.
(iv) The respondents No.2 is liable to pay compensation equally within a period of two months from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE Srt/KJJ