Karnataka High Court
Drakshayani W/O Ramprasad Talawar, vs The Managing Director, Ksrtc, Central ... on 7 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.103039/2014 (MV)
BETWEEN
1. SMT.DRAKSHAYANI W/O RAMPRASAD TALAWAR,
AGED: 34 YEARS,
OCC: HOUSEHOLD WORK.
2. KUMARI.VANITA D/O RAMPRASAD TALAWAR,
AGED: 18 YEARS, OCC: STUDENT
3. KUMARI.VANDANA D/O RAMPRASAD TALAWAR,
AGED: 16 YEARS, OCC: STUDENT,
4. KUMAR.PRAJWAL S/O RAMPRASAD TALAWAR,
AGED: 14 YEARS, OCC: STUDENT
APPELLANT NOS.2, 3 & 4 BEING MINORS
ARE REP. BY THEIR NATURAL MOTHER AND GUARDIAN
5. SMT.PADMAWATI W/O DHARMANNA TALAWAR
AGED ABOUT: 67 YEARS,
OCC: HOUSEHOLD WORK
APPELLANTS ARE ALL R/O. MUMRADDI KOPPA,
NOW RESIDING AT BUDIHAL SJ,
TQ: BADAMI, DIST: BAGALKOT
... APPELLANTS
(BY SRI.ASHOK R KALYANASHETTY, ADVOCATE)
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AND
1. THE MANAGING DIRECTOR,
KSRTC, CENTRAL OFFICE,
SHANTI NAGAR, KH DOUBLE ROAD,
BANGALORE
2. THE DIVISIONAL CONTROLLER
KSRTC PUTTUR DIVISION,
PUTTUR, DIST: UDUPI
3. THE DEPOT MANAGER
KSRTC DHARMASTHALA DEPOT,
DHARMASTHALA
... RESPONDENTS
(BY SRI.F S DABALI, ADVOCATE FOR R1-R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED 06.11.2012 PASSED IN MVC NO.21/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND MEMBER, MACT-VIII,
BADAMI PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THROUGH
VIDEO CONFERENCE DUE TO COVID-19, THIS DAY,
S.G. PANDIT, J DELIVERED THE FOLLOWING:
JUDGMENT
The claimants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under judgment and award dated 06.11.2012 in MVC No.21/2012 on the file of the Senior Civil Judge and Member, MACT-VIII, Badami.
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2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the accidental death of Sri.Ramprasad Dharmanna Talawar which occurred on 10.10.2011 involving KSRTC bus bearing No.KA-19/F-2613. The accident involving the above said vehicle and the accidental death of the deceased is not in dispute in this appeal. The claimants are before this Court praying for enhancement of compensation.
3. In support of their case, the claimant No.1, wife of the deceased was examined as PW.1 apart from marking documents as Exs.P.1 to P.7. No evidence was let in on behalf of the respondent-Corporation.
4. The Tribunal on analyzing the material placed before it, awarded total compensation of Rs.14,57,912/- with interest at the rate of 6% p.a. from the date of petition till realization. While awarding the above compensation, the Tribunal assessed the monthly 4 income of the deceased at Rs.12,541/- p.m. added 30% towards future prospects since he was aged 45 years and was having permanent employment. The Tribunal adopted multiplier of 14 and deducted 1/4th towards personal and living expenses of the deceased. The claimants not being satisfied with the quantum of compensation are before this Court praying for enhancement of compensation.
5. Heard the learned counsel for the appellants, Sri.Ashok R Kalyanashetty and the learned counsel for the respondent-Corporation, Sri.F.S.Dabali appearing through video conference. Perused the trial Court records.
6. The learned counsel for the appellants would submit that the deceased was working as driver in the respondent-Corporation and the income assessed by the Tribunal at Rs.12,541/- p.m. is on the lower side. He submits that only income tax and professional tax are to 5 be deducted from the gross salary of Rs.19,120/- as indicated in Ex.P.6 salary slip issued by the respondent- Corporation for the month of July-2011. Thus, he prays for revising the monthly income on the higher side. The learned counsel would further submits that the claimants No.2 to 5 who are minor daughters, son and mother of the deceased, would be entitled for Rs.40,000/- each on the head of parental and filial consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Co.Ltd vs. Nanu Ram and others, reported in 2018 ACJ 2782. Thus, he prays for enhancing the compensation.
7. Per contra, the learned counsel for the respondent-Corporation would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that Ex.P.6 pay slip for the month of July-2011 would indicate the gross salary at Rs.19,120/- which 6 includes overtime allowance which cannot be included or considered as his regular income. Therefore, the overtime amount cannot be included while assessing the income. Further, he also submits that the pay slip for the month of July-2011 also indicates arrears of Dearness Allowance which also cannot be considered as income. He submits that for assessing the income, basic pay, HRA, CCA, Night Halt Charges, SOT and Washing Charges could be considered. Further, he submits that since the claimants are five in number, deduction at 1/4th is proper and correct.
8. The learned counsel for the respondent- Corporation would also submit that the Corporation has filed I.A.No.1/2017 under Order 41 Rule 27 of CPC seeking permission to produce office order as additional document dated 24.01.12017 to show that the deceased date of birth was 01.06.1965, which means as on the date of the accident, the deceased was aged 46 years 4 7 months and taking the said age application of 14 multiplier is not proper and 13 multiplier would be proper. Thus, he prays for allowing the application and to revise the compensation awarded taking the age of the deceased as 46 years.
9. On considering the rival contentions of the parties and on perusal of the trial Court records, the following points would arise for consideration:
1. Whether the income assessed by the Tribunal at Rs.12,541/- p.m. of the deceased is proper and correct?
2. Whether the claimants would be entitled for enhanced compensation?
10. The answer to the above point No.1 would be in the Negative and point No.2 is in the affirmative for the following reasons:
The accident is of the year 2011. The deceased was working as driver in the respondent-Corporation. 8 Ex.P.6 pay slip for the month of July-2011 is placed on record which indicates gross salary of Rs.19,120/-. It includes overtime allowance also. Overtime allowances are to be deducted from the gross salary. Overtime allowances are not regular income, which would be provided only when one works overtime. If the overtime allowances and arrears of Dearness Allowance are excluded, the income of the deceased would be Rs.12,343/- out of which professional tax of Rs.200/- is to be deducted. Thus, his monthly income would be Rs.12,143/-. The income assessed by the Tribunal at Rs.12,541/- is erroneous. The income of the deceased could be taken at Rs.12,143/- p.m. Since the claimant was aged 45 years according to the Tribunal and was having permanent employment, addition of 30% of the assessed income towards future prospects is proper and correct. The Tribunal applied multiplier of 14 taking the age of the deceased at 45. But the respondent- Corporation has placed on record along with the 9 application filed under Order 41 Rule 27 of CPC office order dated 24.01.2017 to indicate that the date of birth of the deceased was 01.06.1965 which means the deceased was aged 46 years 4 months as on the date of the accident. To the above said I.A., no objection is filed on behalf of the appellants. Learned counsel for the appellants during the course of argument would not dispute the date of birth indicated in the document produced along with the application. Hence, I.A.No.1/2017 is allowed. The respondent is permitted to place on record as additional document the office order dated 24.01.2017.
11. If the date of birth of the deceased is taken as 01.06.1965 as stated above, the deceased would be of 46 years of age as on the date of the accident. Hence, proper multiplier would be 13. The claimants No.2, 3 and 4 are daughters and son of the deceased, who have lost parental love, guidance, discipline, training and 10 protection of their father at an early age. Thus, they would be entitled for Rs.40,000/- each on the head of parental consortium. Claimant No.5 is mother of the deceased, who has lost her son at the evening of her life. She has lost love and affection of her son. Hence, she would be entitled for Rs.40,000/- on the head of filial consortium. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency Including future prospects (12,143+3,642 (30% of 12,143) =15,785-3,946 (1/4th of 15,785) =11,839 x 12 x 13 = 18,46,884 : Rs.18,46,884
2. Conventional head : Rs. 70,000
3. Filial and parental consortium : Rs. 1,60,000 Total : Rs.20,76,884
12. Thus, the claimants would be entitled for total compensation of Rs.20,76,884/- as against Rs.14,57,912/- awarded by the Tribunal with interest at the rate of 6% p.a. 11
13. The appeal was filed with I.A.No.1/2015 praying for condonation of delay of 655 days in filing the appeal. The said I.A. was allowed by order dated 24.09.2019 with the condition that the claimants would not be entitled to interest for the delayed period of 655 days in the event of succeeding in the appeal. Hence, the appellants/claimants would not be entitled for interest for the delayed period of 655 days.
14. The apportionment and deposit would be as ordered by the Tribunal in the same proportion.
15. Accordingly, the appeal stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE SH