Karnataka High Court
The Divisional Manager vs V Timmaraju @ Vadde Thimma Reddy on 6 August, 2018
Bench: G.Narendar, B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
M.F.A. Nos. 22878/2013 c/w
22877/2013, 22719/2013 and 22720/13 (MV)
IN MFA NO. 22878/2013
BETWEEN:
THE DIVISIONAL MANAGER
APSRTC, BUS BEARING AP29Z2438
ANANTHPUR, DIST ANANTHAPUR,
REPTD BY ITS REGIONAL OFFICER
REGIONAL OFFICE, ANANTHAPUR
ANDRA PRADESH.
... APPELLANT
(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADV.)
AND:
1. V TIMMARAJU @ VADDE THIMMA REDDY
S/O : LATE HANUMAPPA,
AGED ABOUT 48 YEARS, OCC:AGRI
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY
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2. SMT. V PADMA @ VADDE PADMAVATHI
W/O V GTIMMARAJU @ VADDE THIMMA REDDY,
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY
3. KUM V RADHA
D/O V TIMMARAJU @ VADDE TIMMA REDDY
AGED ABOUT 24 YEARS, OCC: STUDENT,
R/O : 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY
4. KUM RUKMANI
D/O V TIMMARAJU @ VADDE THIMMA REDDY
AGED ABOUT 23 YEARS, OCC:STUDENT,
R/O : 4TH CROSS, WARD NO.34, DEVI NAGAR,
BELLARY
5. KLM V CHANDRAKALA
D/O V THIMMARAJU @ VADDE
TIMMA REDDY, AGED ABOUT 23 YEARS,
OCC: STUDENT, R/O : 4TH CROSS,
WARD NO.34, DEVI NAGAR, BELLARY.
6. SHAIK ANIL SINHA S/O IMAM SAB
AGE: MAJOR, OCC: DRIVER OF
APSRTC BUS, R/O : KALYANADURGA,
TAL KALYANDURG, ANDRA PRADESH.
... RESPONDENTS
(BY SRI. MANJUNATH G PATIL, ADV. FOR R1-R5,
R6 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:21-03-2013 PASSED
IN MVC NO.1179/2012 ON THE FILE OF MEMBER, MACT-
IX, BELLARY, AWARDING THE COMPENSATION OF
RS.6,82,700/- WITH INTEREST AT THE RATE OF 6% P.A.,
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
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IN MFA NO. 22877/2013
BETWEEN:
THE DIVISIONAL MANAGER
APSRTC BUS BEARING AP29Z2438
ANANTHPUR, DIST ANANTHAPUR,
THE APPELLANT IS REPTD BY
ITS REGIONAL OFFICER
REGIONAL OFFICE, ANANTHPUR
... APPELLANT
(BY SRI. SHIVAKUMAR S BADAWADAGI, ADV.)
AND:
1. V ERAMMA @ ERAMMA W/O LATE V RAMUDU
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O : 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY
2. KUM V PADMAVATHI @ PADMAVATHI
D/O LATE V RAMUDU, AGED ABOUT
25 YEARS, OCC: NOT KNOWN,
R/O : 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY
3. KUM V MALATI D/O LATE V RAMUDU
AGED ABOUT 24 YEARS, OC: NOT
KNOWN, R/O : 4TH CROSS,
WARD NO.34, DEVI NAGAR,
BELLARY
4. SHAIK ANIL SINHA S/O IMAM SAB
AGE MAJOR, OCC: DRIVER OF
APSRTC BUS, R/O : KALYANADURGA
TAL : KALYANADURGA,
DIST : ANANTHAPUR
ANDRA PRADESH.
... RESPONDENTS
(R1 TO R3-SERVED, R4-DISPENSED WITH)
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:21-03-2013 PASSED
IN MVC NO.1179/2012 ON THE FILE OF MEMBER, MACT-
IX, BELLARY, AWARDING THE COMPENSATION OF
RS.6,82,700/- WITH INTEREST AT THE RATE OF 6% P.A.,
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN M.F.A. NO. 22719/2013
BETWEEN:
1. V. ERAMMA @ ERAMMA
W/O LATE V RAMUDU,
AGE: 46 YEARS, OC: HOUSE WIFE,
R/O: 4TH CROSS,
WARD NO.34,
DEVI NAGAR, BELLARY.
2. V PADMAVATHI @ PADMAVATHI
D/O LATE V RAMUDU,
AGE: 25 YEARS, OCC: STUDENT,
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
3. V MALATHI
D/O LATE V RAMUDU,
AGE: 24 YEARS, OCC: STUDENT,
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
... APPELLANTS
(BY SRI MANJUNATHA G PATIL, ADV.)
AND:
THE DIVISIONAL MANAGER
APSRTC OWNER OF THE BUS,
BEARING REGD NO.AP-29/Z-2438,
ANANTHPUR (A.P)
... RESPONDENT
(BY SRI. SHIVAKUMAR S.BADAWADAGI, ADV.)
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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED:21-03-2013 PASSED
IN MVC NO.1179/2012 ON THE FILE OF MEMBER, MACT-
IX, BELLARY, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.22720/2013
BETWEEN
1. V THIMMA RAJU @ VADDE THIMMA REDDY
S/O LATE HANUMAPPA @ THIMMAPPA,
AGE: 49 YEARS, OCC: COOLIE,
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
2. V. PADMA @ VADDE PADMAVATHI
W/O V. THIMMA RAJU
@ VADDE THIMMA REDDY,
AGE: 47 YEARS, OCC: HOUSE WIFE
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
3. V. RADHA D/O V. THIMMA RAJU
@ VADDE THIMMA REDDY,
AGE: 25 YEARS, OCC: STUDENT
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
4. V. RUKMANI D/O V. THIMMA RAJU
@ VADDE THIMMA REDDY,
AGE: 24 YEARS, OCC: STUDENT
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
5. V. CHANDRAKALA D/O V. THIMMA RAJU
@ VADDE THIMMA REDDY,
AGE: 23 YEARS, OCC: STUDENT
R/O: 4TH CROSS, WARD NO.34,
DEVI NAGAR, BELLARY.
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... APPELLANTS
(BY SRI MANJUNATHA G. PATIL, ADV.)
AND
THE DIVISIONAL MANAGER
APSRTC, OWNER OF THE BUS,
BEARING REG.NO.AP-29/Z-2438,
ANANTHPUR (A.P).
... RESPONDENT
(BY SRI. SHIVAKUMAR S BADAWADAGI, ADV.)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED:21-03-2013 PASSED
IN MVC NO.1180/2012 ON THE FILE OF MEMBER, MACT-
IX, BELLARY, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 18.07.2018, COMING ON
FOR PRONOUNCEMENT THIS DAY, B.M.SHYAM PRASAD
J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals that are listed for admission are taken up for final disposal with the consent of the learned counsel for the parties.
These appeals arise out of the judgment and award dated 21.03.2013 in claim petitions in MVC Nos.1179 & 1180 of 2012 on the file of the Presiding Officer, FTC-I and Member, MACT-IX, Bellary (for short, :7: 'the Tribunal'). The APSRTC (for short, 'the Corporation) has filed appeals in MFA Nos.22877 and 22878 of 2013, and other two appeals in MFA Nos.22719 and 22720 of 2013 are filed by the claimants. The Tribunal by the impugned judgment and award dated 21.03.2013 has allowed both the claim petitions. The claimants in MVC No.1179/2012 are awarded a sum of Rs.6,82,700/-, and the claimants in MVC No.1180/2012 are awarded a sum of Rs.6,55,900/-. The claimants in MVC No.1179/2012 are the mother and sisters of the deceased, V. Gopinath, and the claimants in MVC No.1180/2012 are the parents and sisters of the deceased, V. Venkatesh.
The claim petitions were filed asserting that the deceased, V. Gopinath and V. Venkatesh, were traveling on motor cycle bearing registration No.KA-35-L-835 when, at about 11.30 a.m., APSRTC bus coming from the opposite direction dashed against the motor cycle resulting in demise of the deceased. The claimants in :8: MVC No.1179/2012 contended that the deceased, V. Gopinath, was aged about 22 years as on the date of the accident, he had completed training with ITI in Electronics and he was working as an Electrician earning a sum of Rs.8,500/- per month. The claimants in MVC No.1180/2012 contended that the deceased, V. Venkatesh, was aged 20 years at the time of the accident, he was working as an employee with M/s. S.R.R. Constructions and he was earning a sum of Rs.8,500/- per month.
The Corporation resisted the claim petitions contending inter-alia that the accident was because the deceased, V. Venkatesh was riding the motorbike rashly and negligently and that the deceased was under the influence of alcohol at the time of the accident.
The Tribunal negating the Corporation's defence as regards the reason for accident awarded compensation as aforesaid to the claimants/appellants. The Tribunal considered the income of each of the :9: deceased at Rs.6,000/- per month and computed loss of dependency for the claimants, after adding 30% of such income towards future prospects, applying the multiplier based on the age of the younger of the parents and after deducing 50% of the income taken towards personal expenses.
The learned counsel for the Corporation contended that the evidence especially Post-mortem Report (Ex.P10) indicated that the deceased, V. Venkatesh was under the influence of alcohol and this evidence is not considered in the right perspective by the Tribunal while fastening the liability on the Insurance Company. The learned counsel also submitted that the assessment of the income of the deceased at Rs.6,000/- per month and addition of 30% thereof towards future prospects was also not justified in the face of the evidence on record.
On the other hand, the learned counsel for the claimants/appellants refuted the assertion as regards : 10 : the deceased being under the influence of alcohol at the time of the accident and contended that the Tribunal ought to have taken a higher sum as the income of the deceased and provided for addition at the rate of 40% of such income towards future prospects in terms of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others, reported in 2017 ACJ 2700.
In view of the rival contentions, the questions that arise for our consideration in these appeals are: whether the Tribunal was justified in concluding that the driver of the Corporation bus had caused the accident by his rash and negligent driving and whether the claimants are entitled for enhancement as urged by them in these appeals.
The contention on behalf of the Corporation is that the Post-Mortem Report indicates that the deceased, V. Venkatesh (who was riding the bike) was under the influence of the alcohol at the time of the accident and : 11 : the learned counsel for the Corporation drew attention of this Court to the Post-Mortem Report and laid emphasis on the contents of entry in Column-D thereof to contend that it established that the said deceased was under the influence of alcohol at the time of the accident. This entry in Column-D as regards the contents of stomach reads as follows:
"containing about 150 ml brownish turbid fluid with no particular smell noted and mucosa edematous."
It is only this evidence which is relied upon to contend that the accident was as a result of the rash and negligent riding by the deceased, V. Venkatesh. The Corporation has not led in any evidence. It is undisputed that neither the visceral nor blood of the deceased was subjected to any examination for establishing that the deceased was riding motorcycle under any intoxication. The description of the visceral as "brownish liquid" cannot lead to the inference that : 12 : the deceased, V Venkatesh was under the influence of alcohol. Further the concerned authority has entered in the Post Mortem Report that the brownish liquid did not emanate any smell, and if indeed it was alcohol, the concerned authority would have noted the same. Therefore, this evidence on record (the contents of the Post Mortem Report, which is relied upon) cannot be read as establishing that the deceased, V. Venkatesh, was riding the motor cycle under the influence of alcohol. As such, this Court is of the considered opinion that the Corporation has failed to establish its defence.
The Tribunal has taken the income of the deceased at Rs.6,000/- per month in view of the fact that the claimants did not place any specific evidence to establish the income of the deceased, however, the Tribunal has provided addition at the rate of 30% towards future prospects. It is undisputed that after the decision of the Hon'ble Supreme Court in the case of : 13 : Pranay Sethi(supra) that in all cases where the claimants are able to establish that the deceased, or the injured, were in permanent employment or self- employed, they would be entitled for accretion towards future prospects as provided for herein unless specific circumstance justify such denial. Where it is established that the deceased, or the injured, was gainfully employed, the accretion towards future prospects will have to be at the rate of 40% if such persons were below the age of 40 years. In this case, it is established that the deceased were gainfully employed, and further, there is nothing on record that would justify the denial of future prospects. As such, accretion towards future prospects will have to be at 40% because the deceased were aged below 40 years. Even as regards the multiplier to be applied where the deceased is a bachelor, it is settled that multiplier will have to be based on the age of the deceased. As such, the claimants, given the respective age of the deceased, : 14 : will be entitled for compensation capitalized by adopting multiplier of '18'. If the loss of dependency is thus computed, the claimants are held entitled for enhancement in compensation/s as follows:
Amount in Rupees Particulars MVC No.1179/12 MVC No.1180/12 Monthly Income 6000 6000 Annual Income 72000 72000 Deduction of 50% towards personal 36000 36000 Net Annual Income 36000 36000 40% of the Net Income toawrds future 14400 14400 Multiplicand 50400 50400 Loss of Dependency with 18 multiplier 907,200 907,200 Conventional Heads 70000 70000 Total Compensation 977,200 977,200 Awarded by the Tribunal 682700 655900 Enhancement 294,500 321,300 As such, the claimants in MFA Nos.22719/2013 and 22720/2013 will be entitled for enhanced compensation of Rs.2,94,500/- and Rs.3,21,300/- respectively.
Accordingly, the following; : 15 :
ORDER (1) The appeals by the Corporation in MFA Nos.22877/2013 and 22878/2013 are dismissed.
(2) The appeals by the claimants in MFA Nos.22719/2013(MVC No.1179/2012) and 22720/2013(MVC No.1180/2012) are allowed in part by awarding an enhanced compensation/s of Rs.2,94,500/- and Rs.3,21,300/- respectively with interest at the rate of 6% p.a. from the date of petition till deposit.
(3) The Corporation is directed to deposit the enhanced compensation/s along with interest with the Tribunal within a period of six weeks from the date of receipt of a certified copy of this order.: 16 :
(4) The apportionment and disbursement of the enhanced compensation amount shall be in terms of the order of the Tribunal. (5) The deposit in the appeals by the Corporation shall stand transmitted to the Tribunal for further course of action.
(6) Office to draw the modified award accordingly.
SD/-
JUDGE SD/-
JUDGE JTR