Karnataka High Court
Smt. Ambika W/O Late S Elumalai vs The Managing Director Bmtc on 18 August, 2017
M.F.A.NO.10580/2010
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL No.10580/2010 (MV)
BETWEEN:
1. Smt.Ambika
W/o Late S.Elumalai
Aged about 26 years
2. Master Adithya
S/o Late S.Elumalai
Aged about 5 years
3. Kumari Sudha
D/o Late S.Elumalai
Aged about 21 years
4. Master Damodar
S/o Late S.Elumalai
Aged about 20 years
5. Master Arun Raj
S/o Late S.Elumalai
Aged about 17 years
6. Smt.Rajamma
W/o Late Saddiyappa Reddy
Aged about 63 years
Appellant Nos.2 and 5 being
Minor, represented by their mother
And Natural Guardian, Appellant No.1
M.F.A.NO.10580/2010
2
All are residing at No.776,
12th cross, Indiranagar
Near Modi Hospital
West of Chord Road
Bangalore. ....Appellants
(By Sri Srinath.P.V. for Sri M.Raja Shekar, Advocates)
AND:
1. The Managing Director
B.M.T.C., K.H.Road
Shanthinagar
Bangalore-560 027
2. Branch Manager
United India Insurance Co. Ltd.,
No.40, 1st floor, Lakshmi Complex
Opp: Vani Vilas Hospital
Bangalore-09. ....Respondents
(By Sri M.V.Poonacha, Advocate for R2, R1-D/W vide
order dated:13.03.2013)
This MFA is filed under Section 173(1) of MV Act against
the Judgment and award dated:20.07.2010 passed in MVC
No.6991/2007 on the file of the XII Additional Small Causes
Judge, MACT, Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
This appeal coming on for Admission this day, the Court
delivered the following:
JUDGEMENT
Though the matter is posted for admission, with the consent of both the learned counsel for the parties, it is taken up for final disposal.
M.F.A.NO.10580/20103
2. This claimant's appeal arises out of the judgment and award passed by the XII Additional Small Causes Judge & M.A.C.T. Bengaluru in MVC No.6991/2007. Appellants are the wife, children and mother of deceased S.Elumalai. Respondent No.1 is the owner of the offending Bus and respondent No.2 is the insurer. For the purpose of convenience, parties will be referred to hereafter with their ranks before the Tribunal.
3. On 21.08.2007 at about 9.45 p.m. when deceased S Elumalai was proceeding near Reliance Petrol Bunk, Magadi Main Road, Sunkadakatte, the driver of a BMTC bus No.KA-01-F-2976 drove the bus in rash and negligent manner and hit against S Elumalai. Resultantly he died. Claimants filed MVC No.6991/2007 contending that they are the dependants of deceased, due to his untimely death they are put to destitution, hence claimed compensation of Rs.15,00,000/-.
M.F.A.NO.10580/20104
4. Respondent No.2 contested the claim petition denying rashness and negligence, age, occupation, income of the deceased and its liability. To substantiate their claim, the petitioners examined P.W.1 & P.W.2 and got marked Exs.P.1 to P.22. On behalf of the respondents Ex.R1-Insurance policy was got marked. The Tribunal after hearing both the parties, awarded compensation of Rs.5,70,000/-.
5. Sri Srinath, learned counsel for the appellants in his arguments seeks to assail the impugned award on the following grounds:
i. As per Ex.P.19 - Form No.16-A produced by the claimants the annual income of the deceased is Rs.1,22,425/- i.e. 10,202/- per month. But the Tribunal has taken income at Rs.4,000/- per month which is erroneous.
ii. Compensation awarded on the other conventional heads is also on lower side.
6. Sri M.U.Poonacha, learned counsel for respondent No.2 seeks to justify the award on the ground M.F.A.NO.10580/2010 5 that the claimants did not prove the income of the deceased by examining the authors of the documents Exs.P.18, P.19 & P.22, therefore, Tribunal is justified in assessing notional income of the deceased.
7. Having regard to the rival contentions, the question that arises for consideration of this Court is, whether the compensation awarded is just and proper ?
8. The respondents have not challenged the findings on the occurrence of the accident or the liability. Therefore, said findings do not call for re-consideration by Court.
9. The appellants-claimants in the claim petition contended that monthly income of the deceased is Rs.50,000/-. P.W.1-wife of the deceased in her evidence contended that the deceased was working as distributor in RMP Infotech Private Limited, Bengaluru and earning Rs.15,000/- p.m. To prove the income of victim, claimants produced Ex.P18 - letter of appointment as a distributor in RMP Infotech Private Limited, Ex.P.19 -Form 16-A and M.F.A.NO.10580/2010 6 Ex.P.22-payment receipts. The respondents disputed the above said documents. The appellants did not choose to examine the authors of those documents to prove the same. Therefore, Tribunal is justified in holding that documents are not proved.
10. The occurrence of the accident is on 21.08.2007 and the Tribunal has assessed income notionally at Rs.4,000/- p.m. Since there are more than 4 dependents, the Tribunal has deducted ¼ for personal expenses. Since the deceased was aged about 38 years the Tribunal applied multiplier of 15.
11. The Apex Court in the case of Rajesh & Others -vs- Rajbir Singh and Others ((2013) 9 SCC 54) has held that, even the self employed are entitled for future prospects. Since the deceased was aged 38 years, there shall be 50% addition to his income towards his future prospects. Therefore, the income of the deceased comes to Rs.6,000/- p.m. and Rs.72,000/- p.a. On deducting ¼ out of that towards his personal expenses, the annual income M.F.A.NO.10580/2010 7 comes to (Rs.72,000-Rs.18,000) = Rs.54,000/-. Since the deceased was aged about 38 years at the time of the accident, 15 multiplier has to be applied. Thus compensation towards loss of dependency comes to (Rs.54,000 x 15) = Rs.8,10,000/-.
12. The compensation awarded by the tribunal towards loss of consortium is only Rs.10,000/- which is on the lower side. That has to be enhanced to Rs.1,00,000/-.
13. The deceased left behind him his distributors business. The compensation awarded towards loss of estate at Rs.5,000/- is on the lower side and enhanced to Rs.10,000/-.
14. The compensation awarded by the Tribunal towards loss of love and affection is only Rs.5,000/-. That has to be enhanced to Rs.25,000/- each to children and mother which comes to Rs.1,25,000/-.
M.F.A.NO.10580/20108
15. Towards funeral expenses, transportation of the dead body, the Tribunal has awarded only Rs.5,000/- which is on the lower side. That has to be enhanced to Rs.25,000/-.
16. Thus, the claimants are entitled for the following compensation:
PARTICULARS Rs.
Loss of Dependency 8,10,000-00
Loss of Consortium 1,00,000-00
Loss of estate 10,000-00
Loss of love & affection 1,25,000-00
Funeral expenses and 25,000-00
Transportation of dead body
10,70,000-00
Compensation awarded by the 5,70,000-00
Tribunal
BALANCE 5,00,000-00
Therefore, the appeal partly succeeds. The claimants are entitled for compensation of Rs.10,70,000/- as against Rs.5,70,000/- awarded by the Tribunal with interest at 8% p.a. from the date of petition till the date of realization. The impugned award is modified accordingly. M.F.A.NO.10580/2010 9
The second respondent/insurer is hereby directed to deposit the enhanced compensation of Rs.5,00,000/- within four weeks from the date of this award. Rest of the award maintained.
Sd/-
JUDGE HR