Karnataka High Court
The Managing Director vs Smt Kavitha on 20 June, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO
M.F.A No. 2228 OF 2014 C/W
M.F.A.No. 2637 OF 2014 (MVC)
IN MFA No.2228 OF 2014
Between :
The Managing Director,
BMTC Department,
Shanthinagara, K.H.Road,
Bangalore-560027.
R.C. Owner of BMTC Bus
Regd. No. KA-01-FA-907
Reptd by its Chief Law Officer. ...Appellant
(By Sri. F.S.Dabali, Adv.,)
And:
1. Smt. Kavitha,
S/o. Late Vasanth Kumar,
Aged about 29 years.
2. Yeshwanth,
S/o. Late Vasanth kumar,
Aged about 11 years,
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3. Prakruthi,
D/o. Late Vasanth Kumar,
Aged about 10 years.
Since Respondents No.2 & 3
are Minors Rept. By their
M/G & Mother
Smt. Kavitha
W/o. Vasanthakumar
Respondent No.1.
4. Papanna @ Sampangi
Ramaiah, S/o. S.LIngachar
Aged about 56 years.
All are Residing at No.49/2,
Kagalipura, 'A' Block,
Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore-560062. ... Respondents
(By Sri. M.H.Prakash for Adv. for R-1 to 4)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated 23.01.2014
passed in MVC No.290/2013 on the file of the X ASCJ
and 35th ACMM, Bangalore, awarding compensation of
Rs.13,41,000/- with interest @ 8% P.A from the date of
petition till payment.
IN MFA No. 2637 OF 2014
Between:
1. Smt. Kavitha,
W/o. Late Vasantha Kumar,
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Aged about 29 years,
2. Mr. Yashwanth,
S/o. Late Vasanth Kumar,
Aged about 11 years,
3. Kumari Prakruthi,
D/o. Late Vasanth Kumar,
Aged about 10 years,
4. Sri Papanna,
@ Sampangi Ramaiah,
S/o. S. Lingachar,
Aged about 56 years,
Appellants No.2 & 3
are reptd. By Appellant No.1
Mother, Their natural guardian.
All are R/at
Kaggalipura 'A' Block,
Uttarahalli Hobli,
Bangalore South,
Bangalore-62. ...Appellants
(By Sri. Prakash.M.H., Adv.)
And:
The Managing Director,
BMTC Dept.,
Shanthinagara,
K.H.Road,
Bangalore-27. ...Respondent
(By Sri. F.S.Dabali, Adv.)
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This MFA is filed under section 173(1) of MV Act
against the judgment and award dated 23.01.2014
passed in MVC No.290/2013 on the file of the X ASCJ
and 35th ACMM, MACT, Bangalore, partly allowing the
claim petition for compensation and seeking
enhancement of compensation.
These MFAs coming on for admission this day, the
court delivered the following:
JUDGMENT
Since both the Appeals are interconnected to each other, they are taken up together for disposal.
2. MFA No. 2228/2014 is preferred by the Managing Director, BMTC, against the claimants questioning the grant of award of Rs.13,41,000/- together with interest at the rate of 8% per annum from the date of filing of the petition till realisation. MFA No. 2637/2014 is preferred by the claimants seeking enhancement of compensation.
3. The matter pertains to the accident dated 5.12.2012 at 9.30 PM wherein when Sri.Vasantha -5- Kumar was riding motor cycle bearing registration No. KA-05-HV-2870 from Banashankari to Kaggalipura and reached Agra Cross, Kengeri Hobli, Kanakapura - Bengaluru road. The vehicle driven by the BMTC driver bearing No. KA-01-FA-907 in a rash and negligent manner dashed against the motor bike ridden by Vasantha Kumar because of which he sustained serious injuries. He was taken to Sairam Hospital wherein first aid was given and later was shifted to Victoria Hospital where he succumbed to injuries at 12.15 AM on the same day. It is stated that Vasantha Kumar was aged 32 years on the date of the accident after which he succumbed to injuries.
4. In order to avoid confusions and overlapping, the parties herein will be referred with regard to their status before the Tribunal.
5. In so far as the appellant-Managing Director, BMTC, is concerned in MFA No. 2228/2014 it is -6- claimed that the grant of compensation of Rs.13,41,000/- together with interest at the rate of 8% p.a. ought not to have been granted by the Tribunal. On the other hand, they claim that Vasantha Kumar, husband of petitioner No.1, died because of the injuries sustained by him when he overtook the bus from left side.
6. Learned counsel for the BMTC submits that the reckoning of income at Rs.6,000/- per month has been an exorbitant and not warranted under the circumstances. Further, the learned counsel submits that allowing of 50% of the income towards the prospective income ought not to have been considered by the Tribunal. He also submits that the amount of award has been exorbitant.
7. Learned counsel for the claimants contends that shock occurred to a happy family because of the accident but the Tribunal has been conservative in -7- granting compensation. It is stated that Vasantha Kumar, a Carpenter, was earning Rs.12,000/- per month and was looking after the family quite well and by virtue of his death, the entire family was driven to road.
8. Learned counsel further submits that the compensation awarded by the Tribunal has been substantially on the lesser side both on loss of dependency and the conventional heads.
9. Smt. Kavitha, aged 28 years, wife; Yeshwanath, aged 10 years, son; Prakruthi, aged 9 years, daughter and S.R.Papanna, aged 55 years, father, who are the claimants before the Tribunal are direct relatives and dependants on the income that was generated by Vasantha Kumar during his lifetime.
10. In support of their case, the claimants got examined PWs 1 and 2, the petitioner No.1-Kavitha and -8- Chethan, a colleague of Vasantha Kumar. Claimants' side furnished the documents from Exs.P1 to P13 including FIR, IMV report, inquest mahazar, copy of the charge sheet, etc.,
11. It is claimed by the claimants that Vasantha Kumar was not addicted to vices nor was ailing from any disease to deter him from in engaging his avocation and he was a source of livelihood, support and worthy company to the claimants who is now deprived of. Per contra, learned counsel for BMTC-insurance company would submit that the claimants are not at all entitled for compensation as they were never depending on his income nor were they entitled for compensation as the accident took place because of negligence of Vasantha Kumar as he invited death by wrong, rash and negligent driving. He submits that petitioner No.4, the father, was never a dependant on the income of his son Vasantha Kumar and the same is reflected by the -9- separate residence and ration card-Ex.P10 and Exs. P11 to P13 election ID cards.
12. In so far as the accident is concerned, it is not disputed by both the parties. The matter in dispute between the parties are that rash and negligent driving by the driver and entitlement of compensation. The Managing Director of BMTC is made the sole respondent in the petition that was filed by the claimants being the owner and insured of bus bearing No. KA-01-FA-907.
13. In so far as the arriving at the award of Rs.13,41,000/-, the petitioners claim monthly income of Vasantha Kumar during his lifetime was Rs.12,000/- and in support of their claim, his colleague is examined as PW2.
14. In so far as the second issue is concerned, the legal representatives of Vasantha Kumar. Regard being had to the fact, it is the dependants who are entitled for
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compensation. However, in the context of granting compensation, beneficiary need not only be exclusive legal heir but it is the actual dependency that matters in as much as in the case and the claimant No.1 Smt. Kavitha is the wife, Yashwanth, son, Prakruthi, daughter are not only the first degree relatives, (in so far as claimants 1 to 3 are concerned), they are also legal representatives cum dependants cum legal heirs as well of Vasantha Kumar. In so far as claimant No.4 Papanna, is the father who is said to be a dependant on Vasantha Kumar.
15. The contention of the learned counsel for BMTC cannot be accepted for a while as mere residing separately or away from the company of a son cannot be a conclusive evidence to dissent and rule out dependency of his own son. The factors of dependence are age, resources, livelihood, demands, emotions, etc.
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and it is the claim of the petitioners 1 to 3 that the petitioner No.4 was also a dependent.
16. Further, regard being had to the fact that BMTC has examined RW1 who is the driver except oral evidence has not produced a material to show how that respondent No.4 was not a dependant. The quantum of liability is reckoned with reference to various principles and in the facts and circumstances of each matter requires are guided by its own nature. The contention of the learned counsel for BMTC that father was not a dependant on his son Vasantha Kumar on the date of the accident which is also the date of death cannot be accepted.
17. The learned member of the Tribunal has reckoned the monthly income of Vasantha Kumar at Rs.6,000/- against the claim of the claimants of Rs.12,000/- per month and assessed by considering 50% of the notional income to be added by way of
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prospective income and the multiplier is reckoned considering the age of Vasantha Kumar of 32 years on the date of accident as 16, thus the loss of dependency is recognized by the Tribunal as Rs.6,000/- + prospective income Rs.3,000/- = Rs.9,000/-. Reserving personal and living expenses at 1/4th of the income, i.e., Rs.2,250/-, the net notional income per month is considered as Rs.6,750/-. Thus, the loss of dependency is calculated at Rs.6,750/- x 12 = Rs.81,000/- x 16 = Rs.12,96,000/-.
18. The compensation under the conventional heads are awarded as under : -
Compensation towards loss of Rs. 12,96,000-00 dependency.
Compensation towards funeral expenses. Rs. 10,000-00 Compensation towards loss of estate Rs. 10,000-00 Compensation towards of love and Rs. 10,000-00 affection Compensation towards of consortium Rs. 10,000-00 Compensation towards of transportation Rs. 05,000-00 of dead body.
Total Rs. 13,41,000-00
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Thus, the total compensation awarded is
Rs.13,41,000/-.
19. The eye openers and the guiding factors for assessing damage or compensation in the matter of death of a person whether salaried or otherwise, are laid down by the Apex Court in the case of Rajesh and others Versus Rajbir Singh and others, reported in (2013)9 SCC-54 and Sarla Verma (Smt) and others Vs Delhi Transport Corporation and anr reported in (2009) 6 SCC 121. The relevant paras are as under : -
The Apex Court in the case of Rajesh and others Versus Rajbir Singh and others reported in (2013)9 SCC-54 held as under :-
"18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses"
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does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000.
19. The petitioners have produced before this Court Annexure P-4, salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 1-1- 2006, the deceased had a monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 1-1-2006, the salary certificate could not be produced before
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the Tribunal or the High Court. Applying the principles laid down in Sarla Verma case as explained in Santhosh Devi case, and in the instant case, the compensation has to be reassessed as follows:
Sl.No. Heads Calculation
(i) Salary Rs.9,520per month
(ii) 50% of (i) above to be added (Rs.9,520+Rs.4,760=
as future of the deceased Rs.14,280 per month
(iii) 1/4th of (ii) deducted as (Rs.14,280-
personal expenses of the Rs.3,570=Rs.10,710
deceased per month
(iv) Compensation after (Rs.10,710X12X16)=
multiplier of 16 is applied Rs.20,56,320/-
(v) Loss of consortium Rs.1,00,000/-
(vi) Loss of care and guidance Rs.1,00,000/-
for minor children
(vii) Funeral expenses Rs.25,000/-
Total Compesnation Awarded Rs.22,81,320/-
The amount will carry interest @ 7.5% as awarded by the Tribunal from the date of the filing of the petition viz. 26-11-2007 till realization.
Figures are culled out from the decision for the purpose of guidance.
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The Apex Court in the case of Sarla Verma (Smt) and others Vs Delhi Transport Corporation and anr reported in (2009) 6 SCC 121 held as under:-
" Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.
In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1,032/- per month. Having regard to the evidence in
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regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2,000/- as gross income before deducting the personal living expenses.
The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1,543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3,000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2,200/- per month.
In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3,500/- per month) at the time of accident, this court assumed the income as
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Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of 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 deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or
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different methods of calculations being adopted. Where the deceased was self- employed 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.
Re : Question (ii) - deduction for personal and living expenses We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. The claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would
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admit that the deceased was a spendthrift, even if he was one."
20. It is to be noted that there cannot be notional restoration of family life with compensation. At the same time the livelihood cannot be deprived whether family led by a male or female. The Tribunal in its wisdom has recognized the monthly income of Vasantha Kumar notionally at Rs.6,000/-. At the cost of repetition it is stated that being a sole earning member Vasantha Kumar during his lifetime is not attributed to bad habits or vices nor was a vagabond. On the other hand, he was a duty bound husband and a care taker for his wife and children whose family was dropped to poverty because of his untimely death wherein his wife- claimant No.1 and children are pushed to shock of loss of his company. Requirements of life, apart from food, clothing and shelter, has a long and inevitable list including education and incidental necessaries.
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21. Maintaining of children has become so costly that what was comfort earlier becomes necessity and luxury turned out to comforts.
22. It can never be ignored for a moment that the expenditure required for education includes necessaries, now its expenditure from LKG to first standard is more than the expenditure on the same from 1st standard to Matriculation, 12 years back. Petitioner No.1 Kavitha whose role in the circumstances as a home maker and the supportive role hereafter will be doubled regarding care taking of her children in the matter of education.
23. In this context this Court feels and finds that the monthly income taken by the Tribunal at Rs.6,000/- is on the lower side and definitely it requires a lift by not less than Rs.2,000/-. In the process the claim and contention of the claimants has to be considered in so
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far as loss of dependency is concerned. Thus, it is just and appropriate to increase the monthly income at Rs.8,000/- and on application of such monthly income, the income is neither glorified nor can be regarded as exorbitant. The cost of living with reference to procuring necessaries also are considered. On application of Rs.8,000/- per month as the notional income of Vasantha Kumar in the instant case, the loss of dependency would come to Rs.8,000/- + Rs.4,000/- = Rs.12,000/- - 1/4th (personal and living expenses) = Rs.12,000/- - Rs.3,000/- = Rs.9,000/-. Notional yearly income would come to Rs.9,000/- x 12 = Rs.1,08,000/- x 16 (multiplier) = Rs.17,28,000/-.
24. In so far as the personal and living expenses is concerned, it is to be noted that Vasantha Kumar was not a flamboyant nor a vagabond who had no care for the family. Absolutely there is no material to attribute motives to him. In the circumstances, a reasonable
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portion to be reserved for his personal and living expenses cannot exceed more than 1/4th of his income because it cannot be forgotten for a while that his family consisted of himself, wife, two children and also his father.
25. In so far as other conventional heads granted by the Tribunal, except consortium deserves to be maintained at their present rate. In the above factor, the compensation under the head loss of consortium deserves to be enhanced by Rs.40,000/-. Thus, the break up would be as under : -
Compensation towards loss of Rs. 17,28,000-00 dependency.
Compensation towards funeral Rs. 10,000-00 expenses.
Compensation towards loss of estate Rs. 10,000-00 Compensation towards of love and Rs. 10,000-00 affection Compensation towards of consortium Rs. 50,000-00 Compensation towards of Rs. 05,000-00 transportation of dead body.
Total: Rs.18,13,000-00
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Therefore, the enhancement would be
Rs.18,13,000/- - Rs.13,41,000/- = Rs. 4,72,000/-.
26. Thus, the compensation for which the claimants in MVC No. 290/2013 on the file of MACT, Bengaluru, SCCH-16, are entitled to comes to Rs.18,13,000/-. In the process, the award deserves to be enhanced by Rs.4,72,000/-.
27. In so far as the claim of the BMTC to the effect that claimants are not entitled for compensation, there were no dependants, nor compensation under the head future prospects was available holds no ground or substance to be reckoned.
28. In the result, the appeal filed in MFA No. 2228/2014 by BMTC is liable to be rejected and accordingly it is rejected. In so far as the appeal preferred by dependants of Vasantha Kumar in MFA No. 2637/2014 is allowed.
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29. Learned counsel for BMTC submits that the appellant-BMTC has deposited a sum of Rs.10,01,354/- + Rs.25,000/- (statutory deposit). The appellant shall deposit the amount excluding the deposit already made and the claimants would be entitled for interest at 8% p.a on the enhanced compensation also. Such deposit shall be made within thirty days from today.
30. Office to send back the records with a copy of this judgment to the Tribunal.
Sd/-
JUDGE Ckl/ct-bl