Karnataka High Court
The Managing Director vs Smt Mangamma on 16 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:40886
MFA No. 122 of 2022
C/W MFA No. 7550 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 122 OF 2022 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7550 OF 2018(MV)
IN MFA 122/2022
BETWEEN:
1. SMT MANGAMMA
W/O LATE MUNI RAJU
AGED ABOUT 38 YEARS.
2. BABY RANJITHA
D/O LATE MUNI RAJU
AGED ABOUT 7 YEARS.
3. SRI K GANGAPPA
Digitally signed S/O LATE LAKSHMAIAH
by AGED ABOUT 60 YEARS.
DHANALAKSHMI
MURTHY
Location: High 4. SMT. THIPAKKA
Court of W/O K GANGAPPA
Karnataka
AGED ABOUT 55 YEARS
APPELLANT NO.2 IS MINOR
REP BY HER MOTHER
SMT. MANGAMMA
ALL ARE R/AT NEAR
NOORI NURSING OF COLLEGE
GOONIMAKANAHALLI, KGF TOWN, KGF
...APPELLANTS
(BY SRI. VISHWANATHA K.,ADVOCATE)
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NC: 2023:KHC:40886
MFA No. 122 of 2022
C/W MFA No. 7550 of 2018
AND:
THE MANAGING DIRECTOR
APSRTC MUSHEERABAD
HYDERABAD,
ANDHRA PRADESH 500 020.
...RESPONDENT
(BY SRI.D VIJAYAKUMAR., ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2018
PASSED IN MVC NO. 4/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, KGF.
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA 7550/2018
BETWEEN:
THE MANAGING DIRECTOR
APSRTC MUSHEERABAD
REPRESENTED BY ITS
REGIONAL MANAGER
ANANTHAPURAM
ANDHRA PRADESH 515001.
...APPELLANT
(BY SRI. D VIJAYA KUMAR, ADVOCATE)
AND:
1. SMT MANGAMMA
W/O LATE MUNI RAJU
AGED ABOUT 38 YEARS.
2. BABY RANJITHA
D/O LATE MUNI RAJU
AGED ABOUT 6 YEARS.
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NC: 2023:KHC:40886
MFA No. 122 of 2022
C/W MFA No. 7550 of 2018
3. SRI K GANGAPPA
S/O LATE LAKSHMAIAH
AGED ABOUT 59 YEARS.
4. SMT. THIPAKKA
W/O K GANGAPPA
AGED ABOUT 54 YEARS
RESPONDENT NO.2 IS MINOR
REP BY HER MOTHER
SMT. MANGAMMA R1
ALL ARE R/AT NEAR
NOORI NURSING COLLEGE
GOONIMAKANAHALLI
KGF TOWN,
KGF-563113.
...RESPONDENTS
(BY SRI. VISHWANATHA K.,ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2018
PASSED IN MVC NO. 4/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND PRINCIPAL JMFC, KGF.
AWARDING COMPENSATION OF RS.11,41,000/- WITH
INTEREST @ 6% FROM THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA No.7550/2018 has been filed by the Corporation and MFA No.122/2022 has been filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment and award dated 14.03.2018 -4- NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 passed by the Senior Civil Judge and Principal JMFC, KGF in MVC No.04/2016.
2. Facts giving rise to the filing of the appeals briefly stated are that on 05.12.2012 at about 04.00 p.m., the deceased Muniraju was returning from Palamner in his TVS Star Sport Motorcycle near Basavaraju Kandriga Village on Palamner-Punganur Road, at that time, the driver of the APSRTC Bus bearing Registration No.AP-28-Z-5554 drove the same in a rash and negligent manner and dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
4. On service of summons, the respondent appeared through counsel and filed written statement in which the -5- NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The age, occupation and income of the deceased are denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P7. On behalf of respondents, one witness was examined as RW-1 but no document has been exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.11,41,000/- along with interest at -6- NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 the rate of 6% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed by the Corporation as well as by the claimants.
6. The learned counsel for the Corporation has raised the following counter-contentions:
a) Firstly, the accident occurred due to negligence on the part of the deceased himself. He suddenly entered the main road without following any traffic rules and hence the accident was occurred. The Corporation has examined the driver of the offending vehicle as RW-1 and he has categorically stated that the accident occurred due to negligence of the deceased himself and he has also categorically deposed that inspite of driver of the Bus lodged the complaint, the Police refused to register the same. The Tribunal only on the basis of the Police records, has held that the driver of the Bus was negligent in causing the accident. This finding of the Tribunal is contrary to the material available on record. -7-
NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018
b) Secondly, even though the claimants claim that the deceased was earning Rs.9,000/- per month, the same is not established by the claimants by producing documents and notional income of the deceased assessed by the Tribunal Rs.5,000/- is on higher side.
c) Thirdly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'.
d) Lastly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on higher side. Hence, he prays for dismissal of the appeal filed by the claimants by allowing the appeal filed by the Corporation.
7. On the other hand, the learned counsel for the claimants has raised the following contentions:
a) Firstly, the accident occurred due to rash and negligent driving of the driver of the Bus. The claimant -8- NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 No.1 has been examined herself as PW-1. In her evidence, she has categorically stated that the accident occurred due to negligence of driver of the Bus, but in the cross-
examination, nothing worthwhile information has been elicited by the respondent. Therefore, the Tribunal after considering the complaint and charge sheet filed against the driver of the Bus, has rightly held that the driver of the Bus alone was negligent in causing the accident.
b) Secondly, the claimants claim that the deceased was aged about 26 years at the time of the accident and he was earning Rs.9,000/- per month by working as Mason. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.5,000/-.
c) Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. - v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards 'future prospects' should be the warrant where the deceased was below the age of 40 years. The same may be considered. -9-
NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018
d) Fourthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ 2782], each of the claimants are entitled for compensation of Rs.40,000/- under the head of 'loss of love and affection and consortium'.
e) Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on the lower side. Hence, he prays for enhancement of compensation.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal. REG: NEGLIGENCE:
9. The case of the claimants that on 05.12.2012 at about 04.00 p.m., the deceased Muniraju was returning from Palamner in his TVS Star Sport Motorcycle near Basavaraju Kandriga Village on Palamner-Punganur Road, at that time, the driver of the APSRTC Bus bearing
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 Registration No.AP-28-Z-5554 drove the same in a rash and negligent manner and dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries. To prove the case, claimant No.1 has examined herself as PW-1. In her evidence, she has reiterated the statement made in the claim petition and she has produced 7 documents.
10. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence,
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
11. The claimant has produced FIR as per Ex.P2, Inquest report as per Ex.P3, Post Mortem report as per Ex.P4, and
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 charge sheet as per Ex.P5. Immediately after the accident, the complaint has been lodged against the driver of the Bus. The Police have registered an FIR against him. After thorough investigation, they have filed charge sheet against the driver of the Bus. Even the respondent has cross-examined PW-1 and they have not elicited any worthwhile information. Even RW-1 Conductor of the Bus has been examined and he has categorically stated that the deceased was solely responsible for the accident. Even though he has stated that he has lodged the complaint against the deceased, the Police have refused to lodge the complaint. But he has not produced any such copy. The respondent except examining the driver of the Bus as RW-1 as witness, they have not produced any document to disprove the case of the claimants. Therefore, the Tribunal after considering the evidence of PW-1 and Inquest report, complaint and charge sheet has rightly held that the driver of the Bus alone was negligent in causing the accident and the Tribunal has not committed
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 any error in the judgment and has rightly answered issue No.1 in the affirmative.
REG: QUANTUM OF COMPENSATION
12. The claimants claim that deceased was earning Rs.9,000/- per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2012, the notional income of the deceased has to be taken at Rs.7,000/- p.m. To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.9,800/-. The Tribunal has rightly deducted 1/4th of the income of the deceased towards personal expenses. Thus, the monthly income comes to Rs.7,350/-. The deceased was aged about 26 years at the time of the accident and
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018 multiplier applicable to his age group is '17'. Thus, the claimants are entitled to compensation of Rs.14,99,400/- (Rs.7,350*12*17) on account of 'loss of dependency'.
13. In addition, the claimants are entitled to compensation of Rs.15,000/- on account of 'loss of estate' and compensation of Rs.15,000/- on account of 'funeral expenses'. Claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium'.
14. In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant No.2, daughter of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of parental consortium' and claimant Nos.3 and 4, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head of 'loss of filial consortium'.
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NC: 2023:KHC:40886 MFA No. 122 of 2022 C/W MFA No. 7550 of 2018
15. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 14,99,400
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Loss of Filial consortium 80,000
Total 16,89,400
16. In the result, I pass the following order:
ORDER
a) The appeals are disposed of.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of Rs.16,89,400/- as against Rs.11,41,000/- awarded by the Tribunal.
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d) The Corporation is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
e) The amount in deposit, if any, shall be transferred to the Tribunal.
f) In view of the order dated 16.11.2023 passed by this Court, the claimants are not entitled for interest for the delayed period of 603 days in filing the appeal filed by the claimants.
Sd/-
JUDGE HA List No.: 3 Sl No.: 46