Karnataka High Court
Lalita W/O Laxmikant Gayakwad vs The Divisional Controller on 10 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 10TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.31787/2011 (MV)
C/W
MFA NO.31785/2011
MFA NO.31786/2011
MFA NO.31902/2010
MFA No.31787/2011
BETWEEN
1. MAHANTESH
S/O VEERABHADRAYYA HIREMATH
AGE:32 YEARS
OCC: COOLIE
R/O MATHAPATI GALLI
BIJAPUR
2. SNEHA
D/O MAHANTESH HIREMATH
AGE:4 YEARS
M/G BY PETITIONER NO.1
R/O MATHAPATI GALLI
BIJAPUR
...APPELLANTS
(BY SRI SANGANAGOUDA V.BIRADOR FOR CHETANA
ASSOCIATES, ADV.,)
2
AND
THE DIVISIONAL CONTROLLER
KSRTC, BIJAPUR DIVISION
BIJAPUR
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADV.,)
THIS MFA FILED U/S 173(1) OF THE MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24.05.2010
PASSED IN MVC NO.673/2009 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VI AT BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.31785/2011
BETWEEN
1. RAMACHANDRA, S/O ASHAPPA JADHAV
Age:57 YEARS
OCC: NIL
R/O BANJARA CROSS
BIJAPUR
2. CHANDRABHAGHA, W/O RAMACHANDRA JADHAV
Age:52 YEARS
OCC: NIL
R/O BANJARA CROSS
BIJAPUR
3. MEENAXI, W/O RAJENDRA JADHAV
Age:35 YEARS
OCC: HOUSEHOLD WORK
R/O BANJARA CROSS
BIJAPUR
4. SUKANYA, D/O RAJENDRA JADHAV
Age:15 YEARS
M/G BY PETITIONER NO.3
3
R/O BANJARA CROSS
BIJAPUR
5. POOJA, D/O RAJENDRA JADHAV
Age:13 YEARS
M/G BY PETITIONER NO.3
R/O BANJARA CROSS
BIJAPUR
6. NIKITA, D/O RAJENDRA JADHAV
Age:11 YEARS
M/G BY PETITIONER NO.3
R/O BANJARA CROSS
BIJAPUR
7. SACHITRA, D/O RAJENDRA JADHAV
Age:11 YEARS
M/G BY PETITIONER NO.3
R/O BANJARA CROSS
BIJAPUR
...APPELLANTS
(BY SRI SANGANAGOUDA V.BIRADOR FOR CHETANA
ASSOCIATES, ADV.,)
AND
THE DIVISIONAL CONTROLLER KSRTC
BIJAPUR DIVISION
BIJAPUR
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADV.,)
THIS MFA FILED U/S 173(1) OF THE MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24.05.2010
PASSED IN MVC NO.671/2009 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VI AT BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
4
MFA NO.31786/2011
BETWEEN
1. LALITA, W/O LAXMIKANT GAYAKWAD
Age:26 YEARS
OCC: HOUSEHOLD WORK
R/O SADASHIV GAYAKWAD
JADAR ONI
BIJAPUR
2. SHAKUNTALA, D/O LAXMIKANT GAYAWAD
Age:7 YEARS
M/G BY PETITIONER NO.1
R/O SADASHIV GAYAKWAD
JADAR ONI
BIJAPUR
3. PRATAP @ SHEKHAR, S/O LAXMIKANT GAYAKWAD
Age:5 YEARS
M/G BY PETITIONER NO.1
R/O SADASHIV GAYAKWAD
JADAR ONI
BIJAPUR
4. SULOCHANA, W/O SHEKRAPPA GAYAKWAD
Age:57 YEARS
OCC: HOUSEHOLD WORK
R/O SADASHIV GAYAKWAD
JADAR ONI
BIJAPUR
...APPELLANTS
(BY SRI SANGANAGOUDA V.BIRADOR FOR CHETANA
ASSOCIATES, ADV.,)
AND
1. THE DIVISIONAL CONTROLLER
KSRTC, BIJAUR DIVISION
5
BIJAPUR
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADV.,)
THIS MFA FILED U/S 173(1) OF THE MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24.05.2010
PASSED IN MVC NO.672/2009 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VI AT BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.31902/2010
BETWEEN
THE DIVISIONAL CONTROLLER,
K.S.R.T.C, BIJAPUR DVN.
BIJAPUR
REPRESENTED BY CHIEF LAW
OFFICE, HUBLI
...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADV.,)
AND
1. RAMACHANDRA, S/O ASHAPPA JADHAV ORS
Age: 56 YEARS
OCC NIL
R/O BANJARA CROSS
BIJAPUR
2. CHANDRABHAGHA, W/O RAMACHANDRA JADHAV
Age: 51 YEARS
OCC NIL
R/O BANJARA CROSS
BIJAPUR
3. MEENAXI, W/O RAJENDRA JADHAV
Age: 34 YEARS
OCC HOUSEHOLD WORK
6
R/O BANJARA CROSS
BIJAPUR
4. SUKANYA, D/O RAJENDRA JADHAV
Age: 14 YEARS
U/G RESPONDENT NO 3
R/O BANJARA CROSS
BIJAPUR
5. POOJA, D/O RAJENDRA JADHAV
Age: 12 YEARS
U/G RESPONDENT NO 3
R/O BANJARA CROSS
BIJAPUR
6. NIKITA D/O RAJENDRA JADHAV
Age: 10 YEARS
U/G RESPONDENT NO 3
R/O BANJARA CROSS
BIJAPUR
7. SUCHITRA D/O RAJENDRA JADHAV
Age: 10 YEARS
U/G RESPONDENT NO 3
R/O BANJARA CROSS
BIJAPUR
... RESPONDENTS
(BY SRI SANGANAGOUDA V.BIRADOR FOR CHETANA
ASSOCIATES, ADV.,)
THIS MFA FILED U/S 173(1) OF THE MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24.05.2010
PASSED IN MVC NO.671/2009 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VI AT BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND AWARDING
COMPENSATION OF RS.5,29,000/- WITH 6% INTEREST
P.A.
7
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
M.F.A.31787/11, 785/11 AND 786/11 are by the claimants against the judgment and award in MVC. Nos.669/09, 671/09, 672/09 and673/09 seeking enhancement of compensation, while M.F.A.31902/10 is by the State Road Transport Corporation (hereinafter referred to as the Corporation, for brevity) questioning the award on quantum as also on liability. The appeals are clubbed and taken up for final disposal by this common judgment.
2. Heard learned counsel, Sri Santosh Biradar for the appellants-claimants and Sri Subhash Mallapur for the Corporation. Perused records in supplementation thereto.
3. The genesis of these appeals is a motor vehicle accident on 25.3.2009 at a place called Zalaki near Solapur involving an auto bearing registration No.KA-29/9603 in which the claimants were travelling and a bus belonging to 8 the Corporation bearing No.KA-29/F-765, resulting in injuries to the occupants of the auto. Investigation commenced on the report of one of the accused in which it was averred, while they were travelling to go to Solapur, enroute the Corporation driver coming from the opposite direction by sheer negligence lost control due to which the vehicles collided. Due to the impact, the passengers in the auto sustained injuries and the driver succumbed while the others survived.
4. The complaint was investigated and charge sheet was filed indicting the driver of the bus for the offences punishable under Sections 279, 304A, I.P.C. as also other offences. Claimants sought compensation for pecuniary and non-pecuniary loss. The insurance company questioned occurrence of the accident and also contributory negligence of its driver and also disputed the claim for compensation.
5. Based on the material propositions in the pleadings, the learned member of the Tribunal framed issues for 9 consideration. In the enquiry that ensued, claimants tendered evidence in support of their respective claims.
6. The Tribunal did not find favour with the defence of the Corporation and held the driver of the Corporation responsible for the accident and consequently directed the Corporation to discharge the award determined in each case, by the impugned judgment.
7. Before dealing with the grounds urged by the claimants seeking enhancement, it is desirable to refer to the defence of the Corporation and the grounds urged in the appeal filed by it. Sri Subhash Mallapur would submit, the driver of the bus was not responsible for the accident; the bus was being driven with all precautions complying with traffic rules and regulations; near Zalaki, the driver noticed a motorcycle rider riding the vehicle in a zigzag manner, obstructing movement of the bus, and he had no choice but to hit against him and in that process, he moved the vehicle from the left margin to the right margin of the road and the auto driver who was coming from the 10 opposite direction did not stop the vehicle; by sheer negligence the auto driver proceeded further consequent to which the vehicles collided. On this basis, he submits there was no negligence in the driving of the bus driver at all. From such defence it is clear the driver of the bus admits he had moved the bus from the left margin to th eright margin and in that process the vehicle collided with the auto. The explanation tendered by the driver of the bus is, he wanted to avoid hitting the motorcycle rider and thus traversed from one margin to another.
8. It is material to note the Corporation did not summon the motorcycle rider to substantiate such defence even though they knew his identity. Even if we believe that the bus driver wanted to avoid hitting the motorcyclist, he was required to keep in mind the safety of other road users. It is a clear case where the driver while avoiding the motorcycle rider, has collided with the auto. No fault could be found with the auto driver as he could not have expected the drive of the bus to traverse to the 11 right margin. Be that as it may, the defence of the Corporation is too vague and the I.O. after thorough investigation, has found the accident was the result of culpable negligence in the driving of the bus. The finding of the I.O. has not been questioned by the Corporation and as due credence has to be attached to such report in view of Section 158(6), Cr.P.C., the defence is only worthy of rejection.
9. Besides the learned member of the Tribunal has examined the evidence of each claimant who have all spoken in unison about the culpable negligence in the driving of the bus and such finding is the result of correct appreciation of evidence and needs no interference. Hence, it is confirmed. In the circumstances, the grounds urged in the appeal filed by the Corporation against holding the bus driver for culpable negligence calls for no interference.
10. Coming to the question raised by the claimants seeking enhancement, it is seen the legal heirs of Rajendra 12 who was one of the passengers in the bus contend he was engaged in stone polishing work and had an income of Rs.6,000/- p.m. and was contributing the entire earning to the family. The Tribunal disbelieved their version and scaled down his income to Rs.3,500/- p.m. and on that basis loss of dependency was calculated at Rs.5,04,000/-. I am satisfied the approach of the Tribunal has not been realistic. The learned member has not taken into consideration relevant factors to determine income even though there was no documentary evidence.
11. A person engaged in stone polishing work has to be considered a skilled worker and his income could not have been less than Rs.200/- per day. Therefore the income of Rajendra should have been taken as Rs.6,000/- p.m. Based on the decision in SARLA VERMA & ANOTHER .vs. DELHI TRANSPORT CORPORATION & OTHERS (209 [6] SCC 121), 50% of such income has to be added which in this case comes to Rs.9,000/-. As the number of dependants are more than four, 1/5th deduction would be 13 reasonable. If we do that, loss of dependency would be Rs.7,200/- p.m. and annually Rs.86,400/-. The applicable multiplier is 50 and therefore loss of dependency would be Rs.12,96,000/- (Rs.86,400/- x 15). To this has to be added additional sum of Rs.35,000/- to the widow towards loss of consortium of married life and Rs.15,000/- each to four minor children. Besides the parents of the deceased would be entitled to Rs.15,000/- each. Claimants will also be entitled to Rs.25,000/- towards loss to estate and Rs.10,000/- towards funeral expenses.
12. In the result, the award in mva.671/09 is enhanced from Rs.5,29,000/- to Rs.14,56,000/- with interest at the rate of 6% p.a. from the date of petition till realization. M.F.A.31785/11 is allowed in part. The award shall be apportioned as follows:
Claimants 1 & 2 - parents : 10% each
Claimant no.3-wife : 40%
Claimants 4 to 7 : 10% each
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They are entitled to proportionate interest. The amount
falling to the share of minors shall be kept in fixed deposit for a period of five years, or till they attain majority, whichever is later. 50% of the share of the 3rd claimant- wife shall be retained in fixed deposit for a period of five years and she is permitted to draw interest periodically in her name and in the name of minor children. Claimants 1 and 2 are permitted to withdraw the amount in entirety. Insurance company is given eight weeks time to discharge the amount.
13. M.F.A.31786/11 relates to MVC.672/09 filed by the legal heirs of Lakshmikant, driver of the auto in question, seeking compensation for loss of dependency. They had averred, Lakshmikant had income of Rs.8,000/- p.m. which the Tribunal disbelieved and took it as Rs.3,500/- p.m. which is irrational and on the lower side. Taking into consideration the normal wages paid to a driver of a commercial vehicle, there is no reason to scale down his income as stated by the claimants at Rs.8,000/- p.m. As 15 he was less than 40 years, 50% has to be added to it which comes to Rs.12,000/-. There are 4 dependants. Hence deducting 1/4th it would be Rs.9,000/- p.m. and annually Rs.1,08,000/-. He was aged 30 years and the multiplier is 17. Thus claimants are entitled to Rs.18,36,000/- towards loss of dependency. To this has to be added Rs.35,000/- to the wife towards loss of consortium of married life, Rs.50,000/- each to minor children who are claimants 1 and 2, Rs.15,000/- to the 4th claimant-mother of the deceased, Rs.25,000/- towards loss to estate and Rs.10,000/- towards funeral expenses.
14. In all, claimants are entitled to compensation of Rs.20,21,000/-. M.F.A.31786/11 is allowed in part. The award amount shall be apportioned as follows:
Claimant no.1-wife : 50%.
Claimants 2 and 3-children : 15% each
Claimant no.4 : 20%
They shall be entitled to proportionate interest.
Compensation payable to the minor children (claimants 2 16 and 3) shall be kept in fixed deposit for a period of five years or till they attain majority, whichever is later. 50% of the amount payable to 1st claimant shall be released and the balance be retained in fixed deposit for a period of five years. She is permitted to draw interest periodically on the amount in deposit in her name and in the name of her children. The amount payable to the 4th claimant-mother shall be released in entirety. Insurance company is given eight weeks time to discharge the amount.
15. M.F.A.31787/11 is by the claimants in MVC.673/09 who are legal heirs of Manjula (wife of 1st claimant and mother of 2nd claimant). According to them, she was a bangle seller and through that source had an income of Rs.4,500/- p.m. The Tribunal disbelieved it and took her income as Rs.2,500/-. Such approach is irrational as even a labourer would have earned Rs.4,500/- p.m. Therefore not only in terms of money but also her contribution to the family by the services rendered by her have to be taken into consideration. Thus it will be reasonable to take loss 17 of dependency at Rs.4,500/- p.m. Annually it will be Rs.54,000/-. The age of the victim is 30 years and thus multiplier would be 17. Thus towards loss of dependency claimants are entitled to Rs.9,18,000/-. To it, Rs.35,000/- has to be added towards loss of consortium to the 1st claimant, Rs.20,000/- to the child. Claimants are entitled to Rs.25,000/- towards loss to estate and Rs.10,000/- towards funeral expenses.
16. In all, claimants are entitled to compensation of Rs.10,08,000/-. M.F.A.31786/11 is allowed in part. The award amount shall be apportioned in the ratio of 75:25 between claimants 1 and 2. 50% of the amount payable to the 1st claimant shall be retained in fixed deposit for a period of five years and the entire amount of the minor child be retained in fixed deposit till he attains majority. The 1st claimant is permitted to draw interest periodically on the amount in deposit in his name and in the name of the minor child. Insurance company is given eight weeks time to discharge the amount.
18
17. M.F.A.31902/10 filed by the Corporation is dismissed as being devoid of merit. The appeals filed by the claimants, viz., M.F.A. Nos.31785/11, 31786/11 and 31787/11 are allowed in part in terms of this order.
Sd/-
JUDGE Sdu/vgh*