Karnataka High Court
Smt Leela Bai W/O Shivaprasad vs The Managing Director on 13 June, 2012
:1:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MISCELLANEOUS FIRST APPEAL No.3078/2009 (MV)
BETWEEN:
1. Smt. Leela Bai,
W/o. Shivaprasad,
42 years,
2. Vishnu Prasad,
S/o. Shivaprasad,
24 years,
3. Lalji,
S/o. Shivaprasad,
19 years,
4. Divya Bharathi,
D/o. Shivaprasad,
17 years,
All are residing at Goplapur,
Jondhra Post, Masthuri Thana,
Bhilaspur District, Chatisgarh.
4th appellant since minor represented
by 1st appellant - guardian. ... Appellants
(By Shri R.Chandrashekar, Advocate)
AND:
1. The Managing Director,
B.M.T.C., Central Office,
1
:2:
K.H.Road, Double Road,
Shanthinagar, Bangalore - 27.
2. The Divisional Manager,
United India Insurance Co. Ltd.,
No.40, 1st Floor, Lakshmi Complex,
Opp. Vani Vilas Hospital,
K.R.Road, Fort,
Bangalore - 560 002. ...Respondents
(By Shri S.V.Hegde Mulkhand, Advocate for R-2
R1 notice dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of Motor Vehicle Act against the
judgment and award dated 04.10.2008 passed in
M.V.C. No.8553/2007 on the file of Judge and Member,
Motor Accident Claims Tribunal, Bangalore, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
This Miscellaneous First Appeal coming for
hearing on this day, the Court delivered the following: -
JUDGMENT
In this appeal, the appellants who are the claimants before the Tribunal have sought for enhancement of compensation being dissatisfied with the quantum of compensation awarded by the Tribunal. 2 :3:
2. The first appellant is the wife and appellant Nos. 2 to 4 are the children of one Shivaprasad who died in a motor vehicle accident that occurred on 5.11.2007 at about 10.30 p.m. as a result of BMTC bus bearing registration No.KA-01-FA-793 dashing against him while trying to cross the road on Hebbal fly over, in the out skirts of Bangalore city.
3. The appellants - claimants filed petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.16,00,000/-, inter alia contending that the deceased was working as a mason and he was earning a sum of Rs.6,000/- per month and was contributing the entire earnings for the maintenance of the family and as a result of the untimely death of the deceased, they are left with no source of income for their livelihood. The deceased was stated to be aged about 45 years, as on the date of the death.
4. The claim petition was contested by the insurer of the bus, while the owner remained absent and had been placed exparte. The insurer contended 3 :4: that the accident was solely due to the negligence of the deceased himself in crossing the road on a fly over which was meant only for the movement of the vehicular movement and not for pedestrians, therefore, the claimants are not entitled for any compensation. The insurer denied the allegations that the deceased was a mason and was earning a sum of Rs.6,000/- per month.
5. In the light of the pleadings of the parties, the Tribunal framed the following issues: -
"1. Whether the petitioners prove that the death of Sri Shivaprasad, was due to the accident occurred on 05.11.2007 at about 10:30 p.m., on fly over, Bellary road, Hebbal, Bangalore due to the rash and negligent driving of the B.M.T.C. bus bearing No.KA 01 FA 793?
2. Whether the petitioners are entitled for compensation? If so, for what amount and from whom?
3. What order or award?"4 :5:
6. In support of their case, the 1st claimant examined herself as P.W.1 and relied on documentary evidence Ex.P-1 to Ex.P-8. The insurer did not lead any evidence either oral or documentary. After hearing both sides and on assessment of oral and documentary evidence, the Tribunal by the judgment under appeal, while answering issue No.1 regarding actionable negligence though held that the deceased died on account of the bus dashing against him, the Tribunal held that the deceased also contributed negligence for the accident. The Tribunal was of the opinion that since the fly over is built for the purpose of movement of the vehicles so as to ease the traffic congestion on the road, the pedestrian had no business to go over the fly over and attempt to cross the road. The Tribunal also noticed that there was no pedestrian crossing zone on the fly over and the deceased appears to have had attempted to cross the road, where there was no pedestrian crossing zone, as such, he was also negligent and thus has contributed negligence for the accident. The Tribunal 5 :6: quantified the contributory negligence on the part of the deceased at 40% and the negligence on the part of the bus driver at 60%.
7. The Tribunal for the purpose of quantification of loss of dependency held the income of the deceased as Rs.3,000/- per month and deducted 1/3rd of the said income towards the personal and living expenses of the deceased and by applying multiplier of '13' having regard to the age of the deceased, quantified the loss of dependency at Rs.3,12,000/-. To this, the Tribunal added a sum of Rs.10,000/- towards funeral expenses and transportation of the dead body; Rs.20,000/- towards loss of estate; Rs.20,000/- towards loss of consortium and Rs.20,000/- towards loss of love and affection. Thus, the total compensation determined worked out to Rs.3,82,000/- and it was reduced to Rs.2,29,200/-, being 60% of the negligence on the part of the driver of the bus. The insurer of the bus was directed to pay the said sum of Rs.2,29,200/- with interest at 6% per annum from the date of petition till 6 :7: the date of payment. Being aggrieved by the finding of the Tribunal with regard to the contributory negligence on the part of the deceased and being dissatisfied with the quantum of compensation, the claimants are in appeal before this Court.
8. I have heard the learned counsel appearing for he appellants and the learned counsel appearing for the respondent - insurer. Perused the records secured from the Tribunal.
9. The learned counsel for the appellants contended that the finding of the Tribunal regarding contributory negligence on the part of the deceased is without any basis and in the absence of any evidence on the part of the respondent who had taken up specific contention of the negligence on the part of the deceased, the Tribunal ought to have held that the accident was solely due to the negligence of the bus driver. He further contended that the Tribunal has committed error in assessing the monthly income of the deceased at Rs.3,000/- and in this regard, according to the learned 7 :8: counsel, the Tribunal has failed to notice that the deceased was a mason by profession and since the accident occurred in the year 2007 having regard to the cost of living during that period, the Tribunal ought to have assessed the monthly income of the deceased at Rs.6,000/- per month, which works out to Rs.200/- per day. He further contended that since the deceased was hardly aged about 45 years, further provision should have been made for the future prospect towards increase in his wages, while assessing the monthly income of the deceased. In this regard, he placed reliance on the decision of Apex Court in the case of Santosh Devi vs. National Insurance Company Ltd., and Others in Civil Appeal No.3723/2012 disposed of on 23rd of April 2012. He further contended that since there were four dependants on the deceased, the deductions towards the personal and living expenses of the deceased should have been only 1/4th and not 1/3rd, as adopted by the Tribunal. In the light of these 8 :9: submissions, the learned counsel sought for enhancement of compensation.
10. On the other hand, the learned counsel for the insurer sought to justify the judgment under appeal. He contended that the finding recorded by the Tribunal with regard to the contributory negligence on the part of the deceased is sound and reasonable having regard to the fact that the deceased being a pedestrian had no business to go on to the fly over and then to cross the road where there was no pedestrian crossing zone, as such, the said finding does not call for interference by this Court. He further contended that in the absence of any acceptable evidence with regard to the income and vocation of the deceased, the Tribunal is justified in assessing the monthly income of the deceased at Rs.3,000/-. He contended that having regard to the law laid down by the Apex Court in the case of Sarla Verma And Others vs. Delhi Transport Corporation And Another, reported in 2009 ACJ 1298, there is no provision for adding any amount towards future 9 : 10 : prospects. He contended that the deduction of 1/3rd for the personal and living expenses of the deceased is justified for the reason that one of the sons of the deceased had already attained majority as on the date of the death as well as the claim petition, therefore, he was not dependent on the deceased, as a result of which there were only three dependents on the deceased. Therefore, as per the decision of the Apex Court in the case of Sarla Verma, proper deduction to be made towards personal and living expenses of the deceased would be only 1/3rd and not 1/4th, as contended by the learned counsel for the appellants. Therefore, he contended that the compensation awarded by the Tribunal is just and reasonable, as such it does not call for interference by this Court.
11. In the light of the above, the points that arise for consideration of this Court is:-
"1. Whether the Tribunal is not justified in holding that there was contributory negligence on the part of the deceased to an extent of 40%?10 : 11 :
2. Whether the appellants are entitled for enhancement of compensation? If so, to what extent?"
12. There is no dispute that the accident in question occurred on Hebbal fly over, in the outskirts of Bangalore City. The fly overs are constructed to ease the traffic congestion of the road. On the fly overs, it is generally accepted that vehicular traffic alone should be allowed. The pedestrians have no business to go over the fly over and then try to cross the road. Even according to the case of the claimants, the accident occurred when the deceased tried to cross the road on the fly over. The deceased who had no business to go on to the fly over, while attempting to cross the road on the fly over had not taken care which he was expected to take, as such he was negligent in his attempt to cross the road. At the same time, the driver of the bus, as held by the Tribunal, while driving on the fly over also was expected to drive the bus with care and diligence and he ought to have brought the vehicle to a grinding halt on seeing the deceased crossing the road. 11 : 12 : Therefore, the Tribunal has rightly held that the driver of the bus was also negligent. Therefore, the finding recroded by the Tribunal that there was contributory negligence on the part of the deceased in attempting to cross the road on the fly over is just and proper and it does not call for interference by this Court. Having regard to the manner in which the accident occurred, the percentage of contributory negligence on the part of the deceased, as determined by the Tribunal is just and proper and it does not call for interference.
13. It is the specific case of the claimants that the deceased was a mason and was earning a sum of Rs.6,000/- per month. However, the Tribunal has assessed the monthly income at Rs.3,000/-, in the light of the fact that the claimants have not placed any acceptable evidence as to the vocation and income of the deceased. In a case of this nature, one cannot expect any documentary evidence for proving the vocation of a mason or a coolie. The claimants have examined P.W.2 - Khader Basha, who is a civil works 12 : 13 : labour contractor under whom the deceased was stated to have been working as a mason. P.W.2 in his evidence, on oath has stated that the deceased was working with him as mason for about one year prior to his death and he was drawing a salary of Rs.6,000/- per month. Of course, this witness has been cross- examined at length. In the cross-examination, it is elicited from him that the workers come to him and he would send them for work wherever he gets and thereby he works as an agent or as a middleman. He has denied the suggestion that he is not able to say as to what was the salary of the deceased since he was only an agent. The witness has volunteered to state in the cross- examination that the deceased was earning Rs.200/- per day. It is further elicited from him that he has maintained a notebook in respect of the appellant's salary but he has not produced the same. He has admitted the suggestion that there will be no work for all 30 days in a month and there will be work for some days and there will be no work for on other days. Thus, 13 : 14 : there is nothing serious in the cross-examination to dispute the say of P.W.2 that the deceased was working as a mason. In fact there is no suggestion to P.W.2 in the cross-examination that the deceased was not working as a mason. The tenor of the cross-examination of P.W.2 is only that he had no work for all 30 days and there are no documents to show the payment of salary. Therefore, from the evidence of P.W.2, there is no difficulty in holding that the deceased was working as a mason. However, the say of P.W.2 that he was paying salary of Rs.6000/- per month to the deceased is not corroborated by any documentary evidence. In fact, in the cross-examination, P.W.2 has stated that he has not taken either thumb impression or signature of the deceased towards the payment of his salary and he has not produced any document to show that the deceased was working under him. Assuming for the purpose of argument that the deceased was earning Rs.200/- per day as stated by P.W.2 in the cross-examination, in the light of the evidence of P.W.2 that there would no be 14 : 15 : work for all the 30 days in a month, the income of the deceased on that basis could be safely taken at Rs.4,000/- per month. Therefore, monthly income of the deceased is assessed at Rs.4,000/- per month.
14. The next question would be as to whether additional weightage should be given towards future prospects. The evidence on record clearly establishes that the deceased was aged about 45 years. Therefore, he could have worked at least for another 20 years profitably and earned. The Apex Court in Sarla Verma referred to supra in paragraph No.24 of the judgment while considering the question regarding addition to income for future prospects, as a thumb rule, has held that where the deceased was self-employed or on a fixed salary, the Courts will usually take only actual income at the time of death and the departure there from could be made only in rare and exceptional cases involving special circumstances. In other words in Sarla Verma, it has been held that the addition to the income for future prospects shall be only where the deceased had 15 : 16 : permanent job and there shall be no addition on the basis of future prospect where the deceased was self- employed or was on a fixed salary. However, in a recent decision in Santosh Devi vs. National Insurance Company Ltd., and Others, referred to supra, the Apex Court has held that this opinion expressed in Sarla Verma is not an absolute rule and has observed thus in paragraph No.14: -
" We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-
employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same 16 : 17 : throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of the those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a 17 : 18 : corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons living falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down and absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be 18 : 19 : reasonable to say that a person who is self- employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. "
15. In Santosh Devi's case, the Tribunal added 30% of the monthly income of the deceased towards the future prospects for the purpose of calculating the loss of dependency, as the deceased was 45 years old. in the case on hand also, the deceased was 45 years old. In the light of the aforesaid decision, it is just and proper to add 30% of the monthly income of the deceased towards future prospects. On that basis, the monthly income works out to Rs.5,200/-.
16. The next aspect required to be considered is what should be the percentage of deduction towards the personal and living expenses of the deceased. In Sarla Verma, the Apex Court has held that if the number of dependents of family members of the deceased are more 19 : 20 : than 1 and up to 3, the deduction for the personal and living expenses of the deceased should be 1/3rd and if the dependents are between 4 to 6, the deduction should be 1/4th and more than 6, deduction should be 1/5th. In the case on hand, no doubt, there are 4 claimants, namely the wife and three children. As per the description in the cause title of the petition, the 2nd claimant who is the first son of the deceased is shown to be aged about 22 years, while the two other children have been shown as 18 and 16. Thus, the first son had already attained majority even before the death of the deceased. Therefore, it is reasonable to hold that he was not dependent on the deceased in which event there were only three dependents on the deceased. Therefore, deduction towards the personal and living expenses of the deceased would be only 1/3rd and not 1/4th, as contended by the learned counsel.
17. As the deceased was aged about 45 years, the appropriate multiplier applicable would be '14', as 20 : 21 : per the decision of Apex Court in Sarla Verma and not '13' as applied by the Tribunal.
18. The Tribunal has awarded a sum of Rs.70,000/- under conventional heads. Having regard to the facts and circumstances of the case, I am of the considered opinion that the award under the conventional heads is just and proper and does not call for interference. In the light of the above discussions, the total compensation towards loss of dependency works out to Rs.5,82,400/-. If Rs.70,000/- awarded under conventional head is added, total amount works out to Rs.6,52,400/-. 60% of this would be Rs.3,91,400/-. The claimants are entitled to this amount as compensation. To this extent, the appeal filed by the claimants deserves to be allowed.
19. Accordingly, the appeal is allowed in part. The compensation payable to the appellant - claimant is enhanced to Rs.3,91,400/- from Rs.2,29,200/- awarded by the Tribunal. The enhanced compensation of 21 : 22 : Rs.1,62,240/- shall carry interest at 6% per annum from the date of petition till the date of payment.
20. The respondent - insurer is directed to deposit the enhanced compensation with interest within six weeks from today. The apportionment and investment of the enhanced compensation amongst the claimants shall be in the same proportion as indicated in award of the Tribunal. Draw award accordingly.
SD/-
JUDGE Rsh 22