Karnataka High Court
The Managing Director vs Mst Godaivalli on 8 November, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.4740/2018 C/W
MFAF 2491/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.4740/2018 (MV-D)
C/W
M.F.A.NO.2491/2018 (MV-D)
IN MFA NO.4740/2018
BETWEEN:
1 . SMT. GODAIVALLI
W/O LATE LAKSHMIKANT,
AGED ABOUT 48 YEARS
2 . JAGANNAT
S/O LATE LAKSHMIKANT
AGED ABOUT 28 YEARS
3 . PRATHIBHA
D/O LATE LAKSHMIKANT
AGED ABOUT 25 YEARS
ALL RESIDING AT NO.b/20,
POND STREET,
SRIRANGAPATTANA,
MANDYA DISTRICT - 571438
...APPELLANTS
(BY SRI. SHANTHARAJ K., ADVOCATE)
2 MFA NO.4740/2018 C/W
MFAF 2491/2018
AND
THE MANAGING DIRECTOR
KSRTC
CENTRAL OFFICE,
K H ROAD,
BENGALURU - 560027.
...RESPONDENT
(BY SRI.K. NAGARAJ, ADVOCATE)
THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:
31.08.2017 PASSED IN MVC NO.195/2016 ON THE FILE OF
THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES, AS A
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, SENIOR CIVIL JUDGE, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.2491/2018
BETWEEN
THE MANAGING DIRECTOR
K.S.R.T.C. CENTRAL OFFICE,
K. H. ROAD,
BANGALORE-560027.
NOW THROUGH CHIEF LAW OFFICER,
KSRTC, BANGALORE.
...APPELLANT
(BY SRI. NAGARAJA K., ADVOCATE)
3 MFA NO.4740/2018 C/W
MFAF 2491/2018
AND :
1 . MST GODAIVALLI
W/O LATE LAKSHSMIKANTH,
AGED ABOUT 48 YEARS,
2 . SRI JAGANNAT
S/O LATE LAKSHMIKANTH,
AGED ABOUT 28 YEARS,
3 . SMT PRATHIBHA
D/O LATE LAKSHMIKANTH,
AGED ABOUT 25 YEARS,
ALL ARE R/O NO.B-20,
POND STREET,
SRIRANGAPATTANNA,
MANDYA DISTRICT-571438
...RESPONDENTS
(BY SRI: K SHANTHARAJ FOR R1 TO R3)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:31.08.2017 PASSED
IN MVC NO.195/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, AS A
PRESIDING OFFICER, MACT, MYSURU, AWARDING
COMPENSATION OF RS.13,03,248/- WITH INTEREST @
9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.As. COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
4 MFA NO.4740/2018 C/W
MFAF 2491/2018
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) challenging the judgment and award dated 31.08.2017, passed in M.V.C.No.195/2016, on the file of the Principal Judge, Small Causes And Senior Civil Judge and MACT, at Mysuru, (hereinafter referred to as 'the Tribunal' for brevity).
MFA No.4740/2018, is filed by the claimant seeking enhancement of compensation.
MFA No.2491/2018 is filed by KSRTC on the ground of questioning rash and negligence aspect as well as, quantum of compensation awarded by the Tribunal.
Brief facts:
2. On 27.10.2015 at about 9.15 p.m., near Chaduranga circle on Hunsur - Mysuru road, when 5 MFA NO.4740/2018 C/W MFAF 2491/2018 Sri.Lakshmikanth was crossing the road cautiously, at that time the driver of the KSRTC bus bearing registration No.KA-19 F-3180 came in a high speed with rash and negligent manner and dashed, due to the same, he fell down and sustained multiple injuries.
Immediately he was taken to K.R. Hospital, Mysuru, but inspite of best treatment he succumbed to the injuries.
3. Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation for the death of the deceased in the road traffic accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.13,03,248/-, along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal held the respondent-corporation liable to pay the compensation.
6 MFA NO.4740/2018 C/WMFAF 2491/2018
4. The Tribunal has awarded compensation as follows:
Loss of Financial Dependency : Rs. 11,83,248/- Loss of love and affection : Rs. 50,000/-
Loss of consortium : Rs. 50,000/-
Loss of Estate : Rs. 10,000/-
Funeral Expenses and : Rs. 25,000/-
Transportation of Body
TOTAL : Rs. 13,18,248/-
5. In the present case the deceased is Ex-
Service man, the Tribunal has taken the pension amount received by the deceased as Rs.13,446/- per month. Considering the multiplier as '11' according to the age of the deceased and awarded compensation of Rs.11,83,248/- under the head 'Loss Of Dependency'. The Tribunal has not added income towards 'Loss Of Future Prospects In Life'. The compensation amount awarded by the Tribunal is liable to be modified for the following reasons:
7 MFA NO.4740/2018 C/WMFAF 2491/2018
6. The learned counsel for KSRTC submitted that the family pension being received by the wife of the deceased, who is claimant No.1 ought to be deducted, but has not been deducted. Therefore, on this ground prays for reducing the quantum of compensation.
7. On the other hand, the learned counsel for the claimant submitted that the claimant was ex-
serviceman and after retirement of the service, he was doing security guard by getting monthly salary of Rs.20,000/- per month. Therefore, prays for enhancement of the compensation by holding the pension of the deceased, as well as the salary as security guard.
8. The amount of family pension, PF, gratuity or appointment on compassionate ground is not a matter for deduction from the salary. This principle of law is laid down by the Hon'ble Apex Court in the case 8 MFA NO.4740/2018 C/W MFAF 2491/2018 of SEBASTIAN LAKHRA VS. NATIONAL INSURANCE COMPANY1 at para-12 has observed as follows:
"12.The law is well settled that deducti
-ons cannot be allowed from the amount of compensation either on account of Insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by t he deceased in account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants /dependents are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle 1 2018(SC) 504 9 MFA NO.4740/2018 C/W MFAF 2491/2018 accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death."
9. Furthermore, the Hon'ble Apex Court in the case of Vimal Kanwar & Ors vs Kishore Dan & Ors2, was pleased to hold at para-19 as follows:
19. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra 10 MFA NO.4740/2018 C/W MFAF 2491/2018 State Road Transport Corporation & Anr.
reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court:
"35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is 2 2013 ACJ 1441 11 MFA NO.4740/2018 C/W MFAF 2491/2018 receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. 12 MFA NO.4740/2018 C/W MFAF 2491/2018 though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act.13 MFA NO.4740/2018 C/W MFAF 2491/2018
The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."
10. Therefore, from the above said principle of law laid down by the Hon'ble Apex Court, even if the wife is receiving family pension, that cannot be made a subject matter of deduction. The wife is receiving family pension because of death of her husband, in order to survive in the society and that cannot be construed as income being earned by wife. Therefore, the said amount cannot be deducted.
11. The evidence on record proves that the deceased being ex-service men was receiving pension of amount of Rs.13,446/- per month. Considering the submission made by the learned counsel for the claimants that the deceased was working as security guard after retirement from the military service and 14 MFA NO.4740/2018 C/W MFAF 2491/2018 was getting salary of Rs.20,000/- per month by working as security guard, but in this regard there is no evidence produced. The Tribunal has discussed that the PW-2 had stated that the deceased has worked as Security Guard at Neel Groups Security Services, Dattagalli, Mysuru from 2014 for about 19 days only. Except this evidence, there is no evidence to prove that the deceased was working as security guard prior to the accident. The accident was caused on 27.10.2015, the evidence revealed that the deceased was working as security in the year 2015 prior to the accident. But in the year 2014 it is proved that the claimant was working as security guard for 19 days only. Therefore, the Tribunal has not added income of Rs.7,500/- per month as salary of the claimant for working as a security guard but considering the particular aspect that the deceased was intended to work as security guard and do work as security guard for sometime. An ex-servicemen cannot sit idle after 15 MFA NO.4740/2018 C/W MFAF 2491/2018 service in military. Therefore, even though the Tribunal is held to be correct in not considering the evidence that the deceased was earning income of Rs.7,500/- per month being security guard, but in the case of ex-servicemen normally cannot sit idle, he may take some other work for earning. Therefore, for all practical purpose an extra income of Rs.3,000/- per month is taken. Therefore, for all purpose purposes an extra income of Rs.3,000/- per month is to be added apart from pension amount being received by the deceased. Therefore, it is proved that the deceased was receiving pension of alone Rs.13,446 and Rs.3,000/- per month to be added that is the income to be considered, for the reason that claimant no.3 is unmarried daughter of the deceased studying B.Com final year, therefore, it is not possible to maintain the life of the family by providing education to the children only with a sum of Rs.13,446/- that is why a sum of Rs.3,000/- is added. Accordingly, the income of the 16 MFA NO.4740/2018 C/W MFAF 2491/2018 deceased for the purpose of calculation is considered at Rs.16,446/- (13,446 + 3,000) per month.
12. The deceased was 56 years old as on the date of the accident. Further, the deceased was ex- serviceman and had fixed salary. Further, as per principle of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3, 15% of his monthly income is added towards 'Loss Of Future Prospects In Life', i.e., Rs.2,466/- (Rs.16,446/- x 15%). Therefore, the monthly income of the deceased is taken at Rs.18,912/- (Rs.16,446/- + 15%) and 1/3rd of the income is deducted towards 'Personal Expenses'. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another 4 is '11'. Therefore, the compensation under the head 3 (2017) 16 SCC 680 4 AIR 2009 SC 3104 17 MFA NO.4740/2018 C/W MFAF 2491/2018 'Loss Of Dependency alongwith Loss of Future Prospects' is recalculated and quantified as follows:
Rs.16,446 + 2,466 (15% of 16,446) x 2/3 x 11 x 12 Rs.16,64,256/-
13. The Tribunal awarded compensation under the head 'Loss Of Love And Affection' and 'Loss Of Consortium' at Rs.15,000/- each, which is on the lesser side. Therefore, as per the judgment of the Hon'ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu Ram & Others5 reported and in the case of National Insurance Co. Ltd. Vs. Pranay Sethi6 reported in, the three claimants being the legal dependants are entitled to Rs.40,000/- each, and if the same is escalated by 10%, then the claimants are entitled for Rs.44,000/- each under the head 'Loss Of Consortium'. Accordingly, Rs.1,32,000/- (Rs.44,000 x 3) is 5 2018 ACJ 2782 6 (2017) 16 SCC 680 18 MFA NO.4740/2018 C/W MFAF 2491/2018 awarded under the head 'Loss Of Consortium including Loss Of Love And Affection'.
14. Further, compensation awarded by the Tribunal at Rs.10,000/- towards 'Loss Of Estate' And Rs.25,000/- towards 'Funeral Expenses and Transportation of Body' at Rs.25,000/- is appropriate and the same is kept in tact.
15. Thus, in all the appellants/claimants are entitled for enhanced compensation as follows:
Loss of Dependency Along with : Rs. 16,64,256/- Loss of Future Prospects 16,446 + 2,466 (15% of 16,446) x 2/3 x 11 x 12 Loss of Consortium, Love and : Rs. 1,32,000/- Affection (Rs.44,000 x3) Loss Of Estate And Funeral And : Rs. 35,000/-
Transportation (kept in tact)
TOTAL : Rs. 18,31,256/-
16. Therefore, the appellants-claimants are
entitled for compensation of Rs.18,31,256/- as against Rs.13,18,248/-. The appellants - claimants are entitled for an additional compensation of 19 MFA NO.4740/2018 C/W MFAF 2491/2018 Rs.5,13,008/- (Rs.18,31,256 - Rs.13,18,248) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Respondent -
Corporation is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.
REGARDING NELIGENCE:
17. In the present case the learned counsel for the appellant-KSRTC submitted that the deceased was initially dashed by motor cycle but not by KSRTC Bus, but the driver of the KSRTC was falsely implicated in the case. Further, submitted that the deceased while crossing the road met with accident. Therefore, some contributory negligence is to be fastened on the part of the deceased. In the present case, admittedly the accident was caused in the city on the road of Hunsuru-Mysuru Road in the Mysuru city. Admittedly, 20 MFA NO.4740/2018 C/W MFAF 2491/2018 the said road is not National Highway, where the bus was plying in the city, the driver of the bigger vehicle has to drive with care and caution. It may be the place where the deceased was crossing the road was not zebra crossing point, but considering the fact that the road is in the Mysuru city, but if the driver of the bus was driving the bus carefully and cautiously, the accident could have been avoided. It is seen in the spot sketch that the deceased had moved four feet away from the edge of the road. At that moment the accident was caused, if such an accident had occurred in an National Highway then the findings would have been different, but the accident spot is in Mysuru city.
Therefore, it is the duty of the driver who are driving the heavy vehicle to drive the same with full care and caution in the city, but without doing so driving the vehicle in rash and speedily on the roads of city amounts of rash and negligence driving on the part of the driver of the heavy vehicle. Therefore, upon 21 MFA NO.4740/2018 C/W MFAF 2491/2018 considering the charge-sheet materials including complaint, spot mahazar, spot sketch which clearly prove that the driver of the bus was rash and negligent and therefore the Tribunal is correct in fastening the entire negligence on the part of the driver of the KSRTC bus, which needs no interference. REGARDING INTEREST:
18. The Tribunal has awarded interest on the compensation at the rate of 9% per annum, which is scaled down to 6% per annum. To this extent, the appeal filed by the appellant-KSRTC is liable to be allowed. Therefore, the entire compensation shall carry interest at 6% per annum from the date of deposit, till the date of realization.
19. It is submitted that the appellant-KSRTC have already paid a sum of Rs.15,000/- as interim compensation. Therefore, the remaining compensation shall be deposited by the appellant-KSRTC within a 22 MFA NO.4740/2018 C/W MFAF 2491/2018 period of Eight weeks from the date of receipt of a copy of this order.
20. Accordingly, I pass the following:
ORDER i. MFA No.4740/2018, filed by the claimant seeking enhancement of compensation is allowed in part.
ii. MFA No.2491/2018 filed by KSRTC is allowed in part.
iii. The impugned judgment and award dated 31.08.2017, passed in M.V.C.No.195/2016, on the file of the Principal Judge, Small Causes And Senior Civil Judge and MACT, at Mysuru is modified to the aforesaid extent.
iv. The appellants - claimants are entitled for an additional compensation of Rs.5,13,008/- (Rs.18,31,256 -
Rs.13,18,248) along with interest at 6% 23 MFA NO.4740/2018 C/W MFAF 2491/2018 per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal.
However, the appellants-claimants are not entitled for interest for the delayed period of 83 days in filing the appeal.
v. The amount in deposit shall be transferred to the Tribunal forthwith.
vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vii. Draw award accordingly.
viii. No order as to costs.
Sd/-
JUDGE JJ