Bangalore District Court
) Smt.A.S.Savitha vs ) The M.D. Of N.E.K.R.T.C on 27 April, 2022
SCCH - 1 1 MVC No.6857 of 2019
KABC020284612019
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 27th DAY OF APRIL'2022
PRESENT : SMT.PRABHAVATI M.HIREMATH, B.A.,LL.B., (Spl.,)
MEMBER, PRL. M.A.C.T.,
M.V.C. No.6857/2019
PETITIONERS: 1) SMT.A.S.SAVITHA,
W/o.S.K.Vijayakumar,
Aged about 36 years,
2) CHANDANA S.V.,
D/o.S.K.Vijayakumar,
Aged about 17 years,
3) NANDHANA S.V.,
D/o.S.K.Vijayakumar,
Aged about 11 years,
(Since II & III petitioners are minors,
Reptd., by mother and natural guardian
Smt.A.S.Savitha)
R/at No.135, Swethalahari,
Vinayaka Nagar,
Near Ganesha Temple,
Devasandra Extension,
K.R.Puram, Bangalore-36.
SCCH - 1 2 MVC No.6857 of 2019
Petitioners are represented by
B.S.Manjunath, Advocate.
- V/s -
RESPONDENTS: 1) THE M.D. OF N.E.K.R.T.C.,
Central Office,
Transport House,
Main Street, Kalburgi,
(R.C.Owner of NEKRTC Bus
bearing No.KA.36/F.1623)
2) THE MANAGING PARTNER,
M/s.Team Thai Aghin Roadways,
Opp:Kaniyur Check Post,
No.5/93, Kollupalyam,
Karumathapatti, Coimbatore,
Tamilnadu
(RC Owner of lorry bearing
Reg.No.TN.37/DX.6409)
3) RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
No.28, East Wing, 5th Floor,
Centenary Building, M.G.Road,
Bengaluru - 01.
(IP No.220221923340004656 valid
from 02.04.2019 to 01.04.2020)
Respondent No.1 - M.S.Basavaraju,
Advocate
Respondent No.2 - Exparte,
Respondent No.3 - V.R.Muralidhara,
Advocate
*******
JUDGMENT
This petition is filed by the petitioners under Section 166 of the Motor Vehicles Act.
SCCH - 1 3 MVC No.6857 of 2019
2) Facts of the case, in brief, are as under:-
On 05.10.2019, at about 04.00 am., the deceased Vijaykumar was travelling in KSRTC Bus No.KA.36/F.1623 from Bengaluru towards Srirampura. While the bus was proceeding near Heggere Gate, on Hiriyuru - Challakere NH 150(A) Road, due to the negligent act of driving on the part of the bus driver, he lost control over the bus and it dashed against the lorry No.TN.37/DX.6409 from behind, which was parked on the left side of the road.
Due to the impact, the passengers of the bus sustained grievous injuries. The deceased Vijaykumar after having sustained grievous injuries in the accident, died at the spot.
After the accident, the dead body was shifted to Government Hospital, Challakere, wherein post mortem was conducted and thereafter, the petitioners have shifted the dead body to their native place and performed the funeral and related ceremonies. The petitioners have incurred huge expenses for transportation of dead body, funeral and other incidental charges.
Prior to the accident, the deceased was hale and healthy, SCCH - 1 4 MVC No.6857 of 2019 aged 37 years, working as Car Driver with Ola Cabs, Murugesh Palya, Bangalore and earning Rs.40,000/- per month and maintaining the family. The petitioners were solely dependent on the income of the deceased. Due to untimely death of the deceased in the accident, the petitioners have been put to untold hardship and misery.
Due to the negligent act on the part of the driver of the KSRTC Bus, the accident occurred. Thus, the petitioners have claimed compensation of Rs.60 lakhs, on several heads, jointly and severally from the first respondent being the RC Owner cum Insurer of the KSRTC Bus, second respondent being the Owner of the Lorry and the third respondent being the insurer of the lorry.
3) After service of notice of this petition, the respondent No.1 and 3 entered appearance through their respective advocates and filed their objection statement and the respondent No.2 remained absent and hence, he is placed exparte.
4) The respondent No.1, in its statement of objections, has contended that the petition is bad for misjoinder of parties. Bus bearing No.KA.36/F.1623 does not belong to the Managing Director, KSRTC, Central Office, Shanthinagar, Bengaluru. On SCCH - 1 5 MVC No.6857 of 2019 the other hand, it belongs to the Managing Director, NEKRTC, Gulbarga. The first respondent is not the RC owner of the bus. Therefore, the petition is not maintainable against the respondent No.1. The averment in the petition regarding the rash or negligent act on the part of the driver of the bus is denied. The averments in the petition with reference to injuries sustained by the deceased in the accident, resulting in his death, his age, avocation and income are denied in toto by stating that the petitioners be put to strict proof the same. The petitioners are trying to make wrongful gain from the respondent No.1 by falsely implicating the NEKRTC Bus in this case.
5) Due to spread of Covid-19, operational activities of the respondent No.1 - Corporation is stopped. Economy has come to standstill. Now the respondent No.1 Corporation is in financial crisis due to non-operation of the buses and requires longterm schemes to rejuvenate itself. The same is required to be taken in to consideration at the time of fixing the notional income and other facts in determining the compensation and prayed to dismiss the petition.
6) Brief facts of the statement of objections filed by the
SCCH - 1 6 MVC No.6857 of 2019
respondent No.3 are as follows:-
Lorry No.TN.37/DX.6409 is insured with the 3 rd respondent. But the liability is subject to the terms and conditions of the policy. Mandatory requirements of Section 134(c) and 158(6) of the Motor Vehicles Act are not complied with either by the RC Owner or the Police. Involvement of the lorry insured with the third respondent is disputed. Second respondent willfully entrusted the vehicle to be driven by a person who did not possess valid and effective driving licence and thereby, there is violation of policy conditions. Averments in the petition with reference to manner of occurrence of accident, injuries sustained by the deceased resulting in his death, his age, avocation and income are denied in toto. There is no negligence on the part of the driver of the insured lorry. Due to the negligent act on the part of the bus driver, the accident occurred. Compensation claimed is exorbitant and prayed to dismiss the petition.
7) From the above said pleadings of the parties, my predecessor in Office has framed the following issues:
1) Whether the petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 05.10.2019 at about 04.00 am., on NH 150(A) near Heggere Gate, Challakere Taluk, SCCH - 1 7 MVC No.6857 of 2019 Chitradurga District within the jurisdiction of Challakere Police Station on account of rash and negligent driving of the KSRTC bus bearing registration No.KA.36/F.1623 and lorry bearing No.TN.37/DX.6409 by its drivers when the petitioner was travelling in the said bus?
2) Whether the 1st respondent proves that the accident has occurred on account of negligent act of lorry driver?
3) Whether the petitioners are entitled for compensation? If so, how much and from whom?
4) What order ?
8) In support of the petitioner's case, petitioner No.1 has got herself examined as PW 1 and got marked in all 18 documents as Ex.P.1 to P.18.
9) In support of the respondents' case, legal manager of the 3rd respondent is examined as RW 1 and the conductor of the NEKRTC Bus is examined as RW 2. 2 documents are got marked on behalf of the respondents as Ex.R.1 and R.2.
10) Heard arguments on both sides.
11) For the reasons stated in the subsequent paragraphs, I answer the above Issues as follows:-
Issue No.1 - Partly in the affirmative, Issue No.2 - In the negative, SCCH - 1 8 MVC No.6857 of 2019 Issue No.3 - Accordingly, Issue No.4 - As per final Order.
REASONS
12) Issue No.1 and 2 :- These Issues are with reference to the rash or negligent act either on the part of driver of the lorry or the bus driver. Therefore, to avoid repetition of discussion of facts and evidence, these two Issues are taken up together for discussion.
13) It is the case of the petitioners that only due to the rash or negligent driving on the part of the driver of the NEKRTC Bus No.KA.36/F.1623, the accident occurred.
14) To prove the rash or negligent act on the part of the bus driver, the petitioners relied on the evidence of PW 1 and Police records and the cross-examination done to RW 1 and 2.
15) Ex.P.1 is the FIR along with the Complaint, Ex.P.2 is the Spot Sketch, Ex.P.3 is the Spot Mahazar, Ex.P.5 is the IMV Report and Ex.P.7 is the Charge Sheet.
16) On the contrary, to prove that there is negligence on the part of the lorry driver in parking the lorry in the middle of the road, the respondent No.1 relied on the evidence of the conductor of the NEKRTC Bus, who is examined as RW 2.
SCCH - 1 9 MVC No.6857 of 2019
17) In the chief examination of RW 2, he has averred that
on 05.10.2019, he was working as conductor in NEKRTC Bus No.KA.36/F.1623, which was on scheduled trip from Bengaluru to Bellary. The driver was cautiously driving the bus on the left side of the road. While the bus was proceeding on National Highway NH 150(A), near Heggere Gate, lorry bearing No.TN.37/DX.6409 was parked due to mechanical problem in the middle of the road in the dark early morning, without displaying any signal of any nature. At that point of time, a vehicle came form opposite direction with bright light. Due to the bright light of the vehicle coming from the opposite direction, the driver of the bus could not visualise the parked lorry till the bus reached the lorry.
Immediately after noticing the lorry, the bus driver tried to stop the bus by applying brakes. But, in that process, it came in contact with the lorry. The lorry had no parking lights nor reflectors fitted lorry and no top lights in the rear side of the parked vehicle. No barricade was put around the lorry. The lorry was left unattended in the dark and was parked negligently on the road, in violation of the traffic rules.
18) If the respondent No.1 is able to prove the above referred facts averred by RW 2 in his evidence, then certainly there is negligent act on the part of the driver of the lorry too, in SCCH - 1 10 MVC No.6857 of 2019 parking the lorry on highway without putting any indicator or without taking any precaution.
19) Now, the question is whether the above said evidence of RW 2 withstood the test of cross-examination, is to be seen.
During the course of cross-examination done by the advocate for the petitioners, he has deposed that he was sitting in the bus adjacent to the left side rear exit door. He has further admitted that from his seat, it was not possible to visualise front road. He further admitted that in the said accident, including the driver of the bus, 3 persons succumbed to the injuries and several inmates of the bus sustained injuries. He has stated that he has not lodged the complaint to the Police.
20) During the course of cross-examination done by the learned advocate for the respondent No.3, he shows his ignorance by answering that he does not know if the lorry driver had taken all care at the time of parking his lorry. He admitted that the accident occurred in the early morning 4'O clock and he further admitted that after the accident, he got up. After hearing the sound, he got up. After the accident, he did not see the spot, but directly gone to the hospital. He denied the suggestions made to him that after taking all precautionary SCCH - 1 11 MVC No.6857 of 2019 measures, the lorry was parked and there was no negligent act on the part of the driver of the lorry.
21) To substantiate the contentions of the petitioners, as already stated above, they relied on the Police records. From the Police records, it is clear that on 05.10.2019, at 08.00 am., complaint was lodged by one of the inmates of the bus Ramesh S/o.Subba Rao. His statement was recorded in the hospital while he was taking treatment. From Ex.P.1 - FIR and Complaint, it is clear that after the receipt of information about the accident and admission of injured persons in the hospital, in between 7.00 am., and 07.45 am., at Challakere Government Hospital, statement of complainant, who is one of the inmates of the busm was recorded by the Police. On the basis of that statement, case was registered.
22) Considering the time gap between the time of accident and recording of statement of witnesses, that too in the hospital, it cannot be said that there is chance of manipulation of facts. In the complaint itself, it is mentioned that the bus driver by driving the bus in high speed and negligent manner, dashed to the lorry which was parked on the left side of the road by putting indicator. On the same day, as per Ex.P.3, Spot SCCH - 1 12 MVC No.6857 of 2019 Panchanama was conducted. At that time, as per Ex.P.2, Spot Sketch was prepared. In Ex.P.3 Spot Panchanama, description of the spot is mentioned. The accident spot is on the eastern side of Hiriyur Challakere NH 150(A) Public road. The width of the road is 24 feet, having facility to move vehicles on both direction. Towards eastern side of the road, provision for vehicles moving towards Hiriyur and towards western side of the road, provision for vehicles moving towards Challakere is there. On either side of the road, there is 5 feet wide rough mud road. Thereafter, there is drainage. The scene of offence is specifically mentioned as at the edge of eastern side of tar road. On the ground, engine oil, glass pieces, broken spare parts of the vehicles and blood stains were found.
23) In the Panchanama at Ex.P.3, it is also mentioned that keeping in view the safety and in order to facilitate free flow of vehicles moving on the highway, after conducting spot panchanama, bus was moved to the premises of Police Station and the lorry was parked 50 feet away towards northern side, on the kaccha road. In Ex.P.2 Spot Sketch, where the lorry was parked after conducting spot mahazar, is also shown ie., on western mud road. The scene of offence is shown on eastern side of the road on half portion of the mud road and half portion SCCH - 1 13 MVC No.6857 of 2019 on the tar road. Therefore, it cannot be said that the lorry was taken towards western side of the rough road after the accident. As the lorry was loaded with coal, it was not possible for the Investigating Officer to shift the lorry from the scene of offence. Therefore, it was moved 50 feet away towards other edge of the road.
24) In the complaint, it is clearly mentioned that after the accident, the lorry driver was on the spot and he disclosed his name as Mansoor Ali. From this, it is clear that the lorry driver was very well available in the spot. Further explanation was mentioned in Ex.P.3 Spot Panchanama. At the time of conducting the spot panchanama, the Police officials have detached the lorry and the bus as the front portion of the bus had went inside the back portion of the lorry. From these facts, it is clear that till conducting the spot panchanama, scene offence was as it is. There was no movement of other vehicles.
25) In view of the above said answers given by RW 2 during the course of his cross-examination that he was sleeping at the time of accident and he got up only after hearing the sound and that he did not see the scene of offence and directly gone to the hospital as he has also sustained injuries, it creates SCCH - 1 14 MVC No.6857 of 2019 doubt about the version of accident deposed by RW 2 in his chief examination evidence.
26) On the contrary, at the time of recording statement of complainant, he has stated that the lorry was parked by putting indicators and as I already stated above, the scene of offence is shown by making circle, which was half portion on the left mud road and half portion on the tar road, which tallies with the averments in the complaint that the accident occurred on the eastern edge of the road, which is the left side of the road.
27) From the above said Police records and the admission given by RW 2 during the course of his cross-examination, even though PW 1 is not an eye witness to the accident, it is proved that the bus dashed to the parked lorry which was parked on the left side of the road, by putting indicators.
28) The learned advocate for the respondent No.1 vehemently argued that the parking of a vehicle on the national highway during night hours, without taking precautionary measures itself is a negligent act and therefore, it cannot be said that there is negligent act on the part of the driver of the NEKRTC Bus. In support of his arguments, he relied on the principles laiddown in the following judgments:-
SCCH - 1 15 MVC No.6857 of 2019
1) 2009 ACJ 2003 ( Raj Rani and others Vs Oriental Insurance Co., Ltd., and Others), wherein the Apex Court has held as under:-
"Negligence - Contributory negligence - Leaving vehicle in a dangerous position - Truck parked in middle of the road without parking lights on - Car driver driving at normal speed of 40 kmph., owing to lights of another vehicle coming from opposite direction, sighted the truck only at last minute and could not avoid the accident resulting in his death - High Court held that drivers of both the vehicles were equally negligent - Apex Court upheld the finding."
2) 2009 ACJ 551 ( Rajni Soni and others VS Hemraj and others), wherein the High Court of Madhya Pradesh at Jabalpur, has held as under:-
"Motor Vehicles Act, 1988, Section 122 - Negligence - Contributory negligence - Leaving vehicle in dangerous position - Tractor-trolley was left on the highway without any indicator, a motorcyclist dashed against it from behind and sustained fatal injuries - Driver admitted that he stationed his tractor-troller as its tyre was punctured but no evidence that he parked it properly with some indicators - Witness deposed that there was darkness and trucks were coming from opposite direction - It appears that deceased could not see the parked tractor-trolley - Tribunal held that both SCCH - 1 16 MVC No.6857 of 2019 the deceased and tractor-trolley driver were equally negligent - Appellate court reversed the finding and held that there was no contributory negligence of the deceased and driver of tractor-trolley was solely responsible for the accident."
29) 2009 ACJ 2600 (Oriental Insurance Co., Ltd., Vs Chennappa Shettigar and others), wherein the High Court of Karnataka has held as under:-
"Motor Vehicles Act, 1988, Section 126 read with Karnataka Motor Vehicles Rules, rule 214 - Negligence
- Composite - Apportionment of inter se liability - Stationary vehicle - Temple hit a parked truck in the mid of night and a passenger in tempo sustained fatal injuries - No evidence that truck parked o nthe left side of the road in municipal area had indicators to show that vehicle was parked; no blinking lights were kept on the truck or the parking lights were on as required under 214 - No evidence that a person duly licenced to drive a truck was available in the driver's seat - Whether the Tribunal was justified in mulcting liability on the drivers of both the vehicles equally - Held: yes."
4) ILR 2014 KAR 2558 (Mr.Devaraja T., Vs the United India Insurance Company Ltd., rep. By its Manager, Bangalore and another), wherein the Hon'ble High Court of Karnataka has held as under:-
SCCH - 1 17 MVC No.6857 of 2019 "MOTOR VEHICLES ACT, 1988 - Sections 173(1) - Accident claim - Judgment and Award - Grant of inadequate compensation - Claiman'ts appeal for enhancement - Insurer's appeal challenging the quantum of excessive compensation - Plea of contributory negligence by the Insurance Company - Parking the lorry on the National Highway without any sign or indicator - The expression "Contributory negligence" - Discussed".
30) From going through the above said judgments, it is clear that question of fastening negligence to the driver of the vehicle parked on the road arises only when the vehicle is parked without parking lights and without taking precautionary measures. In all 4 judgments, the drivers of the parked respective vehicles had parked the vehicle on the highway without taking precautionary measures and without parking lights. Therefore, their Lordships held that there is negligent act on the part of the driver, who had parked the vehicle on highway without putting parkings lights.
31) In the case on hand, in view of my above said fact finding, the petitioners proved that the lorry was parked on the left side of the road with parkings lights on. In view of the same, the principles laiddown by their Lordships in the said judgments are not applicable to the case on hand.
SCCH - 1 18 MVC No.6857 of 2019
32) Even though for the first time, RW 2 has taken the contention that from opposite direction, other vehicles were moving, thereby it was not possible for the driver of the NEKRTC Bus to visualise parking of the lorry due to the dark, but the particular evidence of RW 2 does not inspire the confidence of the court, in view of the answers given by him as referred above. On the contrary, from the averments in the complaint lodged by the complainant who is one of the inmates of the bus that due to the impact of the accident, the bus driver died at the spot and the front portion of the bus went inside the back portion of the lorry, till it was separated by the Police after conducting spot panchanama, probobalises the contents in Ex.P.1 - Complaint. Therefore, the arguments advanced by the learned advocate for the respondent No.1 is not acceptable one.
33) From the above said evidence, it is proved that in view of the mechanical defect or repairs to the lorry, the lorry was parked by the left side of the road by putting indicators. There is no negligent act on the part of the driver of the lorry. But due to the negligent act on the part of the driver of the NEKRTC Bus, the accident occurred.
34) In this case, there is no dispute regarding the fact SCCH - 1 19 MVC No.6857 of 2019 that in the said accident, the inmate of the bus S.K.Vijaykumar, S/o.Kuruvathappa succumbed to the injuries. To substantiate the same, the petitioner has produced Ex.P.6 PM Report and Ex.P.4 - Inquest Mahazar and Ex.P.8 Death Certificate. From these documents, it is clear that the deceased, who was the inmate of the bus succumbed to the injuries sustained in the accident. Hence, Issue No.1 is answered Partly in the Affirmative and Issue No.2 is answered in the negative.
35) Issue No.3:- It is the case of the petitioners that prior to the accident, deceased S.K.Vijaya Kumar, the husband of PW 1 and father of petitioner No.2 and 3, was 37 years old and he was working as Cab Driver with Ola Cabs and earning Rs.40,000/- per month.
36) To substantiate the same, the petitioner relied on Ex.P.10 - Driving Licence of the deceased. As per Ex.P.10, the deceased was having driving licence to drive Motorcycle with Gear, Trans, LMV Cab, PSV Bus. From the above document, the petitioners are able to prove that the deceased was having the skill of driving including transport vehicles.
37) From the document produced by the petitioners ie., Ex.P.9 - SSLC Marks Card and Ex.P.18 - IT Returns of the SCCH - 1 20 MVC No.6857 of 2019 deceased submitted for the assessment year 2018-19, it is clear that he has declared his gross income as Rs.3,49,175/- and he has paid tax of Rs.996/-. Ex.P.18 was submitted on 12.03.2019. Ex.P.17 is the Statement of Account of the deceased with Canara Bank. From this, it is clear that there were deposits to his account through UPI and cash deposits. Considering the skill of the deceased and that he was licenced to drive variety of vehicles including public service vehicles and the IT Returns submitted by him and also the year of occurrence of accident, the monthly income of the deceased is taken as Rs.20,000/- per month.
38) As per the Driving Licence, PAN Card and Aadhaar Card of the deceased produced at Ex.P.10 and 11, it is clear that the date of birth of the deceased is 28.04.1982. Thus, at the time of accident ie., on 05.10.2019, the deceased was aged 37 years.
39) Now the question is that whether loss of future prospects is required to be considered in this case, is to be seen.
40) In this regard, it is useful to refer to the judgment of the Hon'ble Apex Court reported in (2021) 2 SCC 166 (Kriti Vs Oriental Insurance Co., Ltd.,), wherein, the Apex Court, while SCCH - 1 21 MVC No.6857 of 2019 dealing with the issue of considering loss of future prospects in respect of a house maker, in supplement para No.21, has observed as under:-
"21. Once notional income has been determined, the question remains as to whether escalation for future prospects should be granted with regard to it. Initially, the awarding of future prospects by this Court was related to the stability of the job held by the victim [See General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs), (1994) 2 SCC 176; Sarla Dixit (Smt) v. Balwant Yadav, (1996) 3 SCC 179]. This focus on the stability of the job of the victim, while awarding future prospects, was continued in the judgment of this Court in Sarla Verma (Smt) v. Delhi Transport Corporation, (2009) 6 SCC 121 wherein the Court held as follows:
"24. In Susamma Thomas [(1994) 2 SCC 176] this Court increased the income by nearly 100%, in Sarla Dixit [(1996) 3 SCC 179] the income was increased only by 50% and in Abati Bezbaruah [(2003) 3 SCC 148] the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years.
Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied SCCH - 1 22 MVC No.6857 of 2019 or different methods of calculation being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." (emphasis supplied)
22. However, there was a shift in jurisprudence regarding future prospects with the fiveJudge Bench decision of this Court in Pranay Sethi (supra). This Court extended the benefit regarding future prospects to even selfemployed persons, or those on a fixed salary. The Court held as follows:
"57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the selfemployed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self employed person; and that apart there is always an incessant SCCH - 1 23 MVC No.6857 of 2019 effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is selfemployed is bound to garner his resources and raise his charges/fees so that he can live with same facilities....Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable." (emphasis supplied)
23. The rationale behind the awarding of future prospects is therefore no longer merely about the type of profession, whether permanent or otherwise, although the percentage awarded is still dependent on the same. The awarding of future prospects is now a part of the duty of the Court to grant just compensation, taking into account the realities of life, particularly of inflation, the quest of individuals to better their circumstances and those of their loved ones, rising wage rates and the impact of experience on the quality of work.
24. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a Court in the first category of cases outlined earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the Court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income. It is clear that no rational distinction can be drawn with SCCH - 1 24 MVC No.6857 of 2019 respect to the granting of future prospects merely on the basis that their income was not proved, particularly when the Court has determined their notional income.
25. When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688].
26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarized as follows: a. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law. b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social SCCH - 1 25 MVC No.6857 of 2019 equality and ensuring dignity to all.
c. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.
d. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally. e. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation."
41) In view of the above said observation of the Hon'ble Apex Court and since the deceased was aged 37 years at the time of accident, 40% of his income, is required to be taken towards loss of future prospects. If that be so, including the loss of future prospects, the total income of the deceased comes to Rs.28,000/-.
42) PW 1 in her evidence has deposed that she is the wife and petitioner No.2 and 3 are their minor children. Since the deceased had 3 dependent members on his income, therefore, it is appropriate to deduct 1/3rd of the income of the deceased towards his personal expenses, had he been alive. After deducting 1/3rd out of the total income ie.,Rs.9,333/-, balance 2/3rd comes to Rs.18,667/-. After multiplying the same by 12, annual loss of income comes to Rs.2,24,004/-. As the deceased SCCH - 1 26 MVC No.6857 of 2019 was aged 37 years, as per the principles laiddown in Sarla Verma's case reported in 2009 ACJ 1298, the multiplier applicable is 15. Upon multiplication of annual loss of income by 15, it comes to Rs.33,60,060/-, which is the amount of compensation, to which the petitioners are entitled to under the head loss of dependency.
43) Further, under the conventional head, as per the principles laiddown in the case of National Insurance Co., Ltd., Vs Pranay Sethi and others reported in 2017 ACJ 2700 (SC), the petitioners are awarded Rs.40,000/- towards loss of consortium to petitioner No.1, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Further, as per the principles laiddown by the Hon'ble Apex Court in the case of Magma General Insurance Co., Ltd., Vs. Nanu Ram Alias Chuhru Ram and Ors., in Civil Appeal No.9581 of 2018 (Arising out of SLP (Civil) No.3192 of 2018), (D.D.18.09.2018), the petitioner No.2 and 3 being the children of the deceased are awarded Rs.40,000/- each towards parental consortium.
34) Therefore, the petitioners are entitled for compensation as under:-
SCCH - 1 27 MVC No.6857 of 2019
Sl. Head of Compensation Calculati Total
No. on
1 Monthly Income of the 18,667/-
deceased, including loss of
future prospects, after
deducting 1/4th towards
personal expenses of the
deceased
Annual Income of the 2,24,004/-
multiplying the monthly
income by 12
After applying 15 multiplier, 33,60,060/-
the total income comes to
2 Towards Loss of Consortium 40,000/-
to petitioner No.1
3 Towards Loss of Estate 15,000/-
4 Towards Funeral Expenses 15,000/-
5 Towards Parental Consortium 80,000/-
to petitioner No.2 and 3
(40000 each)
Total 35,10,060/-
35) The petitioners are entitled to 6% interest on the
compensation amount from the date of petition till realisation.
36) The petitioner No.1 is the wife, petitioner No.2 and 3 are the children of the deceased. The compensation amount is SCCH - 1 28 MVC No.6857 of 2019 apportioned amongst them as under:-
Petitioner No.1 - Wife - Rs.19,10,060.00 Petitioner No.2 - Daughter - Rs. 8,00,000.00 Petitioner No.3 - Daughter- Rs. 8,00,000.00 Total Rs.35,10,060.00
37) While answering Issue No.1 partly in the affirmative and Issue No.2 in the negative, it is held that the accident has occurred due to the rash or negligent act of driving of NEKRTC Bus by its driver. Therefore, the respondent No.1, being the Owner cum Insurer of the NEKRTC Bus, is liable to pay the compensation amount with interest at 6% p.a. from the date of the petition till realization. Respondent No.1 is directed to deposit the compensation amount within 2 months. Petition as against the respondent No.2 and 3 is dismissed. For the above said reasons, Issue No.3 is answered accordingly.
38) Issue No.4 :- In view of the discussions made above, I proceed to pass the following: -
ORDER The petition filed by the petitioners is allowed in part against the respondent No.1.
SCCH - 1 29 MVC No.6857 of 2019 The petitioners are entitled for a total compensation of Rs.35,10,060/- with interest at the rate of 6% per annum from the date of petition till realization.
The respondent No.1 being the Owner cum Insurer of the NEKRTC Bus is liable to pay awarded compensation amount with interest. The respondents No.1 is directed to pay the compensation amount within two months from the date of this order.
The compensation awarded is apportioned amongst the petitioners as under:-
Petitioner No.1 - Wife - Rs. 19,10,060/-
Petitioner No.2 - Daughter - Rs. 8,00,000/-
Petitioner No.3 - Daughter - Rs. 8,00,000/-
Total Rs.35,10,060/-
50% out of the compensation amount apportioned in favour of petitioner No.1, with proportionate interest, is ordered to be deposited in FD in any nationalised or scheduled bank of her choice for a period of 5 years. Interest on FD is payable on maturity. Remaining 50% of compensation amount with proportionate interest, is ordered to be released to her.
In so far as petitioner No.2 and 3, who are minors, entire compensation amount apportioned in their favour with interest SCCH - 1 30 MVC No.6857 of 2019 is ordered to be deposited in their respective names, until they attain majority or for 5 years whichever is later. Interest on FD is payable on maturity.
Petition as against the respondent No.2 and 3 is dismissed.
Advocate's fee is fixed at Rs.1000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer, transaction thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 27th day of April'2022) (PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Sushma N., P.W.2 : Harish S.,
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR along with complaint Ex.P-2 : Spot Sketch Ex.P-3 : Spot Mahazar Ex.P-4 : Inquest Mahazar SCCH - 1 31 MVC No.6857 of 2019 Ex.P-5 : IMV Report Ex.P.6 : PM Report Ex.P.7 : Charge Sheet Ex.P-8 : Death Certificate Ex.P.9: Copy of SSLC Marks Card of deceased Ex.P.10: Copy of driving licence of deceased Ex.P.11: Copy of PAN Card of deceased Ex.P.12 to Copies of Aadhaar Cards 14: Ex.P.15: Study Certificate of petitioner No.2 Ex.P.16: Study Certificate of Petitioner No.3 Ex.P.18: Bank Statement Ex.P.19: IT Returns for the AY 2018-19
Witnesses examined on behalf of the respondents :
RW 1 - Vijay Kumar Iti RW 2 - B.Umesh Documents marked on behalf of the respondents:
Ex.R.1 - Authorisation Letter Ex.R.2 - Copy of Plicy (PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore