Karnataka High Court
The Divisional Controller, vs Shanta Ram Bhatkande, on 17 February, 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 17TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.No.101792 OF 2015 (MV)
C/W
M.F.A.No.101334 OF 2015 (MV)
IN MFA 101792/2015
BETWEEN:
THE DIVISIONAL CONTROLLER,
NWKRTC BELAGAVI DIVISION,
BELAGAVI. (OWNER OF NWKRTC,
BUS NO. KA-42/F-1298)
REPTD. BY THE CHIEF LAW
OFFICER, NWKRTC CENTRAL OFFICE
GOKUL ROAD, HUBBALLI.
... APPELLANT
(BY SRI. I.C.PATIL, ADVOCATE)
A N D:
1. SMT. SHANTA RAM BHATKANDE,
AGE:51 YEARS,
OCC:HOUSEHOLD WORK,
R/O:SHIVAJI GALLI, MUCHANDI,
TQ/DIST: BELAGAVI.
2. SRI. KRISHANA S/O RAM BHATKANDE,
AGE:66 YEARS,
OCC:HOUSEHOLD WORK,
R/O:SHIVAJI GALLI, MUCHANDI,
TQ/DIST: BELAGAVI.
... RESPONDENTS
(BY SRI.VITTHAL S. TELI, ADVOCATE FOR R1 & R2)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT AND AWARD DATED 28.01.2015 PASSED IN
MVC NO.2431/2013 ON THE FILE OF THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE
COMPENSATION OF RS.2,83,000/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS
ENTIRE REALIZATION.
IN MFA 101334/2015
BETWEEN:
1. SHANTA RAMA BHATKHANDE
AGE:52 YEARS, OCC. HOUSEHOLD WORK
R/O: SHIVAJI GALLI, MUCHANDI
TQ & DIST. BELAGAVI.
2. SHRI. KRISHNA S/O RAMA BHATKANDE
AGE:67 YEARS, OCC. NIL
R/O: SHIVAJI GALLI, MUCHANDI
TQ & DIST. BELAGAVI
... APPELLANTS
(BY SRI.VITTHAL S. TELI, ADVOCATE)
A N D:
THE DIVISIONAL CONTROLLER
N.W.K.R.T.C.
BELAGAVI DIVISIONS
BELGAVI
... RESPONDENT
(BY SRI. I. C.PATIL, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:28.01.2015, PASSED IN
MVC.NO.2431/2013, ON THE FILE OF THE 1st ADDITIONAL
SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION & SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
M.F.A.No.101792 of 2015 has been filed by the respondent/corporation and M.F.A.No.101334 of 2015 has been filed by the appellants/claimants assailing the judgment and award passed by 1st Addl. Senior Civil Judge & Addl. MACT, Belagavi (hereinafter referred to as 'the Tribunal', for short), in M.V.C.No.2431 of 2013 dated 28.01.2015.
2. Heard, appeals are admitted and with consent of the learned counsel appearing for the parties, they have been taken up for final disposal.
3. For the sake of convenience the parties are referred to as per their rankings before the Tribunal.
4. Brief facts of the case are that, on 30.09.2013 at about 1.20 p.m Ningubai was proceeding near bus-stand by walk and at that time a KSRTC bus bearing registration No.KA-42/F-1298 came from inside the bus-stand rashly and negligently and dashed to the said Ningubai. As a result of the same she sustained grievous injuries and died on the 4 spot. It is the contention of the petitioners that she was doing tailoring work and also agriculture, thereby earning Rs.8,000/- per month. For having lost the deceased, brother and sister of the deceased filed a claim petition for claiming the compensation.
5. In response to the notice respondent filed the objections by denying the contents of the petition. He contended that the petitioners are not the dependants and there is no financial loss. It is further contended that the accident took place due to the fault of the deceased herself and there is no negligence on the part of the driver of the KSRTC bus. It is further contended that when there is no dependency, there is no question of granting any compensation. On these grounds, he prayed for dismissal of the said petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that the deceased Ningubai Babu Kocheri died on account of the injuries sustained by her in the motor vehicle accident that occurred on 30.09.2013 at about 13.20 hours near main gate of bus stand, 5 Belagavi due to the rash & negligent driving of the NWKRTC Bus bearing No.KA-42/F-1298 by its driver?
2. Whether the petitioners are entitled for the compensation? If so, to what extent and from whom?
3. What order or decree?
In order to prove the case of the petitioner, petitioner No.1 came to be examined as PW-1 and got marked as documents at Exs.P1 to P10. The driver of the corporation came to be examined as RW-1, no documents have been got marked.
After hearing the parties to the lis, the impugned judgment and award came to be passed.
6. The main grounds urged by the learned counsel for the appellant/corporation are that though the deceased was an unmarried sister of the claimants, the brothers were not dependent, the Tribunal while awarding compensation has taken as if the claimants were the dependants on deceased and has awarded the compensation on the higher side and the compensation awarded is excessive and 6 arbitratory and the same is liable to be set-aside. On these grounds he prayed for allowing the appeal by setting-aside the impugned judgment and award.
7. Per contra, the learned counsel for the claimants vehemently argued by contending that the claimants are solely depended on the deceased and in order to substantiate the said fact they have also led evidence. The claimants were not having any other sources of income except of the deceased. He further contended that the compensation awarded under the conventional head is on the lower side and the income is also taken on the lower side. He further contended that the compensation awarded by the Tribunal is just and proper and the same requires to be enhanced. On these grounds he prayed for allowing his appeal by dismissing the appeal filed by the corporation.
8. The accident in question is not dispute.
9. As could be seen from the judgment and award passed by the Tribunal, it is an admitted fact that the claimant No.1 is the unmarried sister and claimant No.2 is 7 an unmarried brother of the deceased. It is also an admitted fact that the deceased was also unmarried. It is the contention of the petitioners that the deceased was living with them and petitioners were depending on the income of the deceased. They further contended that the deceased was doing tailoring work and agricultural work and was earning Rs.8,000/- per month. But in the absence of documentary evidence Tribunal by taking the notional income at the rate of Rs.3,000/- and after deducting 1/3rd towards the personal expenses of the deceased after applying the multiplier of 11 has awarded an amount of Rs.2,64,000/- towards the loss of dependency. The Tribunal is also awarded an amount of Rs.10,000/- towards the loss of estate, an amount of Rs.5,000/- towards the funeral expenses and Rs.3,000/- towards the medical expenses. In all the Tribunal has awarded an amount of Rs.2,83,000/- with interest at the rate of 6% per annum.
10. On going through the impugned judgment and award, the method adopted by the Tribunal is not in accordance with law. When the legal representatives of the 8 deceased were not depending on the income of the deceased, the Tribunal ought not to have awarded any compensation under the head of loss of dependency. The legal representatives of the deceased were only entitled to loss of estate and funeral expenses and other expenses which has been incurred in this behalf. This proposition of law has been laid down by this Court in the case of M/s Oriental Insurance Company Ltd., vs. Shivamma and others reported in ILR 2008 Karnataka 1561,wherein it has been held at paragraph No.6,7,8,9 and 10 which reads as under:
6. Before proceeding to consider the contention advanced by the learned counsel for the appellant, it is useful to extract the relevant portions of the judgment in Manavalgan's case and Manjuri Bera (Supra)
7. In Manavalgan's case the Division Bench while summarizing the principles enunciated thus:
"(i) xxxx xxxxx xxxx
(ii) xxxx xxxx xxxx
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added. 9
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalizing it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependents, and in cases where the claimants who are not dependants claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
(emphasis supplied)
8. In Manjuri Bera's case, the Apex Court held thus:
"16. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act".
9. In the light of the aforesaid decisions, it is needless to state that the MACT in the instant case proceeded on a footing as if the claimants being sister-in- law (widow of the deceased brother) and the nephew, being majors, were dependent on the income of the deceased.
10. Indisputably, the 1st claimant in her oral testimony having state that the deceased Puttamari used to occasionally visit the house and would partake of food and rest in her house, clearly established the fact that the claimants were not dependant upon the income of the deceased. Therefore, what the claimants are entitled to is compensation for loss to estate in addition to a conventional sum for expectation of life, to be determined in the manner as summarized in A.Manavalagan's case (supra) which compensation cannot be less that the 10 liability referable to Section 140 of the Motor Vehicles Act, i.e., less than Rs.50,000/- as decided in Manjuri Bera's case supra.
11. Keeping in view the above said proposition of law, the claimants are entitled to only loss of estate and the funeral expenses and the method of calculation has also been stated in the above said decision. If that method is adopted, the claimants are justified in claiming some compensation. As could be seen from the impugned judgment and award, the Tribunal has taken the notional income at the rate of Rs.3,000/- per month. But admittedly the accident is of the year 2013 and during the said period the notional income of Rs.7,000/- is the yardstick which even used to be adopted for settlement of cases before the Lok-Adalat. If the income is taken at Rs.7,000/- per month, after deducting 50% towards personal expenses of the deceased and after applying the proper multiplier of '11', it comes to Rs.4,62,000/- towards loss of dependency. Out of the said amount, as per the ratio laid down in the decision quoted supra 25% is the loss of estate, i.e., Rs.1,15,500/- which is awarded to the claimants towards loss of estate. 11 Further, the appellants/claimants are entitled to an amount of Rs.30,000/- under the conventional head and the amount of Rs.4,000/- which has been awarded under the medical and other incidental expenses is kept in tact.
12. In all, the appellants/claimants are entitled to Rs.1,49,000/- with interest at the rate of 6% per annum as against Rs.2,83,000/- awarded by the Tribunal.
13. Keeping in view the above said facts and circumstances, the appeal filed by the corporation in M.F.A.No.101792 of 2015 is allowed-in-part and the judgment and award passed by the Tribunal in M.V.C.No.2431 of 2013 is modified as indicated above. Insofar as the appeal filed by the appellants/claimants in M.F.A.No.101334 of 2015 is dismissed as devoid of merits.
The amount if any in deposit is ordered to be transmitted to the jurisdictional Tribunal forthwith.
Registry is directed to draw the award accordingly.
Sd/-
JUDGE RHR/-