Karnataka High Court
Rathnamma vs The Managing Director on 24 August, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.2142/2021 (MV-D)
BETWEEN:
1. RATHNAMMA
W/O. LATE RANGASHAMAIAH,
AGED ABOUT 51 YEARS,
2. NARASIMHARAJU L.R.
S/O. LATE RANGASHAMAIAH,
AGED ABOUT 33 YEARS,
BOTH ARE R/AT LAKSHMIDEVIPURA
VILLAGE, MEDIGESHI HOBLI,
MADHUGIRI TALUK - 572 132.
3. LAKSHMIDEVI @
LAKSHMIDEVAMMA,
D/O. LATE RANGASHAMAIAH,
W/O. NAGARAJ T.
AGED 31 YEARS,
R/AT PARASHURAMADEVARA KOTE,
HIRIYURU TALUK - 577 598.
4. GEETHA H.R.
D/O. RANGASHAMAIAH,
W/O. MANJUNATHA H.S.
AGED ABOUT 29 YEARS,
R/AT 2ND BLOCK, HOSAKERE VILLAGE,
MEDIGESHI HOBLI,
MADHUGIRI TALUK - 572 132.
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5. GIRIJA
D/O. LATE RANGASHAMAIAH,
W/O. CHANDRAPPA K.S.
AGED ABOUT 27 YEARS,
R/AT NO. MOSARUKUNTE VILLAGE,
GOWDAGERE HOBLI,
SIRA TALUK - 572 137 ... APPELLANTS
(BY SRI SHANTHARAJ K., ADVOCATE (V.C.))
AND:
THE MANAGING DIRECTOR,
KSRTC, K.H. ROAD,
DOUBLE ROAD,
SHANTHINAGAR,
BANGALORE - 560 027. ... RESPONDENT
(BY SRI B.S. KARTHIKEYAN, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 21.01.2020, PASSED IN MVC NO.385/2018, ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The claimants have filed the present appeal for enhancement of compensation, against the judgment and award dated 21.01.2020 passed by the Principal Senior Civil Judge and Motor Accidents Claims Tribunal, -3- Madhugiri in MVC No.385/2018 awarding a total compensation of Rs.10,11,000/- with interest @ 6% per annum from the date of the petition till the date of realisation.
2. The claimants, who are the wife and children of the deceased Rangashamaiah, have filed the claim petition under the provisions of Section 166 of the Motor Vehicles Act seeking compensation of Rs.80,00,000/- from the date of the petition till the date of realisation contending that, on 27.07.2017, at about 7.45 p.m., when the deceased was proceeding towards Hosakere as a pedestrian while returning from milk dairy on the left side of the road and in front of the Milk dairy on Madhugiri-Pavagada main road, a KSRTC bus bearing registration No.KA-06-F-1026 driven by its driver in a rash and negligent manner came from Pavagada side and dashed against the deceased causing accident. Due to the impact, the deceased sustained grievous injuries and died on the spot. Post mortem was conducted at -4- Government Hospital, Madhugiri. The claimants have stated that they have spent Rs.70,000/- and Rs.10,000/- towards funeral and conveyance expenses.
3. It is further contended that the deceased Rangashamaiah was hale and healthy before the accident and he was aged about 50 years at the time of the accident; he was an agriculturist with the activities of dairy farming having 8 hybrid cows and was rearing 80 sheeps; and he used to earn Rs.50,000/- per month to maintain his family. It is also contended that due to the death of the deceased, the claimants had suffered shock and agony and they were entirely depending upon the earnings of the deceased as he was the only bread earning member of the family. Claimant no.1 being the wife has lost her husband and claimant nos.2 to 5 are the children have lost their father. Due to sudden death of the father, they have lost the main source of income. Therefore, they have filed the claim petition for compensation as prayed for.
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4. After service of notice, the respondent appeared through its Managing Director, KSRTC and filed statement of objections. He denied the averments made in the claim petition and also denied the age and occupation of the deceased. It is contended that the respondent is the owner and custodian of the offending vehicle and the said accident occurred due to the rash and negligent act of the driver of the lorry as the offending vehicle was coming behind the lorry. It is further contended that the respondent is falsely implicated in the case and therefore, the KSRTC is not liable to pay the compensation. It is also contended that the claim of the compensation is exorbitant. Therefore, he sought to dismiss the claim petition.
5. Based on the pleadings, the Tribunal framed the following issues for consideration:
1. Whether the petitioners prove that, deceased Rangashamaiah s/o Late. Dalappa died in the road traffic accident that occurred on -6- 27.07.2017 at 7-45 p.m., in front of Milk Dairy, Hosakere village, on Madhugiri-
Pavagada main road, due to actionable rash and negligent driving of KSRTC bus bearing Reg.No.KA-06-F-1026 by it's driver as contended in the petition?
2. Whether the petitioners are entitled for compensation? if so, to what amount?
6. In order to substantiate their contention, claimant no.1 got examined herself as PW.1 and got examined one witness as PW.2 and got marked the documents as Exs.P1 to P16. The respondent got examined its driver as RW.1 but not chosen to produce any documents.
7. The Tribunal, after considering both oral and documentary evidence on record, recorded a finding that the claimants have proved that the deceased Rangashamaiah died in a road traffic accident that occurred on 27.07.2017 in front of Milk Dairy, Hosakere Village on Madhugiri-Pavagada main road due to actionable rash and negligent driving of the driver of -7- KSRTC bus bearing registration No.KA-06-F-1026 and the claimants are entitled to compensation. Accordingly, the Tribunal has awarded a compensation of Rs.10,11,000/- with interest at 6% per annum from the date of the petition till realisation. Aggrieved by the same, the present appeal is filed by the claimants for enhancement of compensation. However, the KSRTC has not filed any appeal as against the impugned judgment and award passed by the Tribunal.
8. We have heard learned counsel for the parties to the lis.
9. Sri K.Shantharaj, learned counsel for the appellants/claimants contended with vehemance that the impugned judgment and award passed by the Tribunal awarding a compensation of Rs.10,11,000/- with interest @ 6% per annum is on the lower side and the same requires to be enhanced. He further contended that PW.1 has specifically stated on oath that -8- the deceased Rangashamaiah was aged 50 years at the time of the accident and was an agriculturist earning Rs.50,000/- per month which has not been considered by the Tribunal. He further contended that the Tribunal has erred in assessing the income of the deceased at Rs.9,000/- per month which is contrary to the evidence on record. He also contended that the Tribunal has not awarded any income towards loss of future prospects though the deceased was aged 50 years at the time of the accident as held by the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others [2017 ACJ 2700] (Pranay Sethi). Therefore, he sought to allow the appeal.
10. Sri B.S.Karthikeyan, learned counsel appearing for the respondent-KSRTC sought to justify the impugned judgment and award passed by the Tribunal and would contend that the Tribunal considering the material on record has recorded a finding that, as per Ex.P5 - post mortem report, the age -9- of the deceased was 50 years at the time of the accident and also considering genealogical tree which depicts the relationship of the deceased with the claimants that claimant no.1 is the wife and claimant nos.2 to 5 are the children in majority and in the absence of proof of income, the monthly income cannot be presumed that the deceased was earning Rs.50,000/- and that the Tribunal has rightly recorded a finding that the claimants have not produced any documents with respect to sheep rearing business. Furthermore, the Tribunal has recorded that the accident occurred in the year 2017 and any person, who was an agriculturist doing milk vending business would have earned Rs.9,000/- per month. Therefore, he contended the compensation awarded by the Tribunal is just and proper. Hence, he sought to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:
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"Whether the claimants have made out a case for enhancement of compensation, in the facts and circumstances of the case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and carefully perused the entire material on record carefully.
13. It is an undisputed fact that the deceased Rangashamaiah aged about 50 years died in an unfortunate road traffic accident that occurred on 27/07/2017 at around 7.45 p.m. in front of milk dairy on Madhugiri-Pavagada Main Road, due to the actionable negligence of the driver of the KSRTC bus bearing registration No.KA-06/F-1026 as is evident from the material records Ex.P-1 copy of FIR, Ex.P-7 the final report issued by the jurisdictional police during the course of the regular employment. The finding recorded by the Tribunal that the accident occurred due to the
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rash and negligent driving of the driver of the KSRTC bus has reached finality.
14. PW.1 who is the wife of the deceased specifically stated on oath that her husband was aged about 50 years and was doing agricultural work and was also doing dairy farming having hybrid cows and was rearing 80 sheep and used to earn Rs.50,000/- per month to maintain his family. It is specifically stated by PW.1 that all the claimants were depending upon the earnings of the deceased and he was the only bread earner of the family. Learned MACT proceeded to take the income of the deceased on the presumption that the deceased was an agriculturist and was doing milk vending business. In this regard, the claimants have produced supporting document, but with regard to rearing of sheep, they have not produced any document. The accident occurred during the year 2017 and any person who was an agriculturist would have earned Rs.9,000/- per month as on the date of accident is an
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erroneous finding by the learned MACT without considering the evidence of PWs.1 and 2 and the material documents at Exs.P-14,15 and 16 which clearly depict that in order to substantiate that the deceased was an agriculturist and was doing dairy farming and sheep rearing business, petitioners have produced RTC extract, mutation register extract and register extract issued by milk co-operative society. Prior to the accident, the deceased was earning Rs.2,758.24 for 15 days and it would come to Rs.5,516.48 per month. It is the specific case of PW.1 that apart from milk vending business, the deceased was also doing agricultural work and was rearing more than 80 sheep. In that case, he would have earned substantial income, but the learned MACT has ignored oral and documentary evidence and proceeded to pass an award of Rs.10,11,000/-. Even in the absence of any document, the notional income fixed by the Karnataka State Legal Service Authority, as on the date of the accident, it would have been Rs.11,000/-
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.Considering the evidence of PWs.1 and 2 and the material documents Exs.14, 15 and 16, this Court is of the considered opinion that the deceased would have earned Rs.15,000/- per month as the age of the deceased was 50 years 25% has to be added to the income of the deceased towards future prospects as per the dictum of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others [2017 ACJ 2700] (Pranay Sethi), it would come to Rs.18,750.50 per month (15,000 + 25%) . As the claimants are five in number, in terms of the dictum of the Hon'ble Supreme Court in Pranay Sethi, 1/4th has to be deducted towards the personal expenses of the deceased and applying the multiplier 13, loss of dependency would come to Rs.21,93,750/- (18,750.50 - ¼ = 14,062.50 x 12 x 13)and that the claimants are entirely depending upon the income of the deceased as stated by PW.1 in categorical terms and the same is not controverted anywhere in the cross-
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examination. The Tribunal has erred in awarding Rs.40,000/- towards consortium ignoring the dictum of United India Insurance Co. Ltd. Vs. Satinder Kaur alias Satwinder Kaur and others; Satinder Kaur alias Satwinder Kaur and others vs. United India Insurance Co. Ltd. [AIR 2020 SC 3076] and Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & others [(2018)18 SCC 130], as the claimants are five in number, they are entitled for Rs.40,000/- each towards loss of consortium, which would come to Rs.2,00,000/- (40,000 x 5). The claimants are also entitled for Rs.15,000/- each towards loss of estate and funeral expenses as held by the Apex Court in the case of Pranay Seti supra.
15. Unfortunately, learned MACT without considering the oral and documentary evidence on record presumed that if an agriculturist is doing milk vending would have earned Rs.9,000/- per month as is clearly indicate that the learned Tribunal has no
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practicality about the agriculture and milk vending business and therefore, erroneously taken Rs.9,000/- per month which is on the lower side. Learned Tribunal further held that the claimant Nos.2 to 5 being major and the married daughters cannot be considered as dependents on the income of the deceased.PW.1 in categorical terms stated that the claimants are entirely depending upon the income of the deceased and in the absence of any contra material produced by the KSRTC the learned Tribunal ought not to have held that since claimant Nos.2 to 5 being major son and married daughters cannot be considered as dependents on the income of the deceased as held by the Hon'bl Supreme Court in the case of National Insurance Company Limited vs. Birender & others [(2020) 11 SCC 356] at paragraph Nos.15 and 20 held as under:
"15. The next issue is about the deduction of the amount receivable by the legal representatives of the deceased under the 2006 Rules from the compensation amount
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determined by the Tribunal in terms of the decision of three-Judge Bench of this Court in Shashi Sharma. This Court, after analysing the relevant rules, opined as follows:
"23. Reverting back to Rule 5, sub-rule (1) provides for the period during which the dependants of the deceased employee may receive financial assistance equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim.
Sub-rule (2) provides that the family shall be eligible to receive family pension as per the normal Rules only after the period during which they would receive the financial assistance in terms of sub- rule (1). Subrule (3) guarantees the family of a deceased government employee of a government residence in occupation for a period of one year from the date of death of the employee, upon payment of normal rent/licence fee. By virtue of sub rule (4), an exgratia assistance of Rs.25,000 is provided to the family of the deceased employee to
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meet the immediate needs on the loss of the bread earner. Sub-rule (5) clarifies that house rent allowance shall not be a part of allowance for the purposes of calculation of assistance.
24. .....As regards the second part, it deals with income from other source which any way is receivable by the dependants of the deceased government employee. That cannot be deducted from the claim amount for determination of a just compensation under the 1988 Act.
25. The claimants are legitimately entitled to claim for the loss of "pay and wages" of the deceased government employee against the tortfeasor or insurance company, as the case may be, covered by the first part of Rule 5 under the 1988 Act. The claimants or dependants of the deceased government employee (employed by the State of Haryana), however, cannot set up a claim for the same subject falling under the first part of Rule 5--"pay and allowances", which are receivable by
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them from employer (the State) under Rule 5(1) of the 2006 Rules. In that, if the deceased employee was to survive the motor accident injury, he would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of "pay and wages" of the deceased government employee entailing in grant of bonanza, largesse or source of profit to the dependants/claimants.....
26. Indeed, similar statutory exclusion of claim receivable under the 2006 Rules is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of pay and wages of the deceased has already been or will be compensated by the employer in the form of exgratia financial assistance on compassionate grounds under Rule 5(1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be
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just. The amount receivable by the dependants/claimants towards the head of "pay and allowances" in the form of exgratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the 2006 Rules would come into play if the government employee dies in harness even due to natural death. At the same time, the 2006 Rules do not expressly enable the dependants of the deceased government employee to claim similar amount from the tortfeasor or insurance company because of the accidental death of the de ceased government employee. The harmonious approach for determining a just compensation payable under the 1988 Act, therefore, is to exclude the amount received or receivable by the dependants of the deceased government employee under the 2006 Rules towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased government employee in the nor mal course. This is not to say that the amount or payment receivable by the dependants of the
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deceased government employee under Rule 5(1) of the Rules, is the total entitlement under the head of "loss of income". So far as the claim towards loss of future escalation of income and other benefits is concerned, if the deceased government employee had survived the accident can still be pursued by them in their claim under the 1988 Act. For, it is not covered by the 2006 Rules. Similarly, other benefits extended to the dependants of the deceased government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, life insurance, provident fund, etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependants of the deceased government employee, applying the principle expounded in Helen C. Rebello and Patricia Jean Mahajan cases.
27. A priori, the appellants must succeed only to the ex tent of amount receivable by the dependants of the deceased government employee in terms
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of Rule 5(1) of the 2006 Rules, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period speci fied."
(emphasis supplied) xxx xxx xxx
20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3rd) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi, in paragraph 37, adverted to the dictum of this Court in Sarla Verma (Smt.) vs. DTC with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3rd). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that respondent Nos.1 and 2 along with their respective families were staying with the
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deceased at the relevant time and were largely dependant on her income."
16. Our view is also fortified by the judgment of the Apex Court in the case of N. Jayashree Vs. Cholamandalam [AIR 2021 SC 5218], wherein it is held that son-in-law is also entitled for compensation at paragraph Nos.10, 16, 21, as under:
"10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma, this Court has laid down as under:
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"16...."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
xxx xxx xxx
16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims their families.
Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfill its legislative intent. We are also the view that in order to maintain a claim petition, it is sufficient for the claimant establish his loss of dependency. Section 166 of the MV Act makes
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it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.
21. Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the motherin-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant no.4 herein may not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition."
17. After re-assessing the entire material on record, the claimants are entitled just compensation as under:
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Loss of dependency : Rs.21,93,750/- (14,062.50 x 12 x13) Loss of consortium : Rs. 2,00,000/-
(40,000 x 5)
Loss of estate : Rs. 15,000/-
Funeral expenses : Rs. 15,000/-
------------------
TOTAL :- Rs.24,23,750/-
------------------
18. For the reasons stated above, we are of the considered view that the issue raised in the present appeal is answered partly in the affirmative holding that the claimants have made out a case in the peculiar facts and circumstances of the case. The claimants are entitled for just and proper compensation of Rs.24,23,750/-.
19. Hence, we pass the following:
ORDER
(i) The appeal filed by the claimants is allowed in part.
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(ii) The impugned award passed by the Tribunal is hereby modified.
(iii) The claimants are entitled for just and proper compensation of Rs.24,23,750/- as against Rs.10,11,000/- awarded by the Tribunal and after deducting the same from the enhanced compensation, the claimants are entitled for Rs.14,12,750/- and the claimants are entitled for 6% interest per annum on the enhanced compensation amount from the date of petition till the date of realisation.
(iv) The KSRTC is directed to deposit the
enhanced compensation amount of
Rs.14,12,750/- with proportionate interest within a period of eight weeks from the date of receipt of a copy of this order.
(v) The deposit and apportionment of the award amount shall be as per the order of the Tribunal.
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20. At this stage, learned counsel for the KSRTC submits that at the time of accident, a sum of Rs.15,000/- was paid to the claimants by the KSRTC. If that is so, the same has to be adjusted out of enhanced compensation on production of proper documents before the MACT.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE S*