1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
MFA NO.3613 OF 2018 (MV)
BETWEEN:
1. SMT. SUNANDAMMA
W/O LATE C. CHANNEGOWDA
AGED ABOUT 57 YEARS
2. GEETHA M. C.
D/O LATE C. CHANNEGOWDA
AGED ABOUT 27 YEARS
3. RAMYA M. C.
D/O LATE C. CHANNEGOWDA
AGED ABOUT 25 YEARS
ALL THE PETITIONERS ARE PERMANENT
RESIDENTS OF BEHIND ADARSHA SCHOOL
HOUSING BOARD, MANDYA CITY, MANDYA
... APPELLANTS
(BY SRI. RAJESWARA P. N. ADV.)
AND:
THE DIVISIONAL CONTROLLER
KSRTC (BUS STAND)
MANDYA DIVISION
MANDYA - 571 401 ... RESPONDENT
(BY SMT. SWETHA ANAND, ADV.)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED 29.01.2018 PASSED IN MVC NO.1609/2016, ON THE
FILE OF PRL.SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE AND MACT, MANDYA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY,
M.I.ARUN J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and award passed in MVC No.1609/2016 by the Principal Senior Civil Judge and MACT, Mandya dated 29.01.2018 (for short 'the Tribunal'), the petitioners therein have preferred this appeal.
2. For the sake of convenience, parties are referred to as per their ranking before the Tribunal.
3. It is contended by the petitioners that, on 07.08.2016 at about 11.20 p.m. when deceased Sri.C.Channegowda who was walking on a foot path of Bangalore-Mysore Road in MIMS, Mandya, a KSRTC Bus bearing Reg. No.KA-40-F-921 being driven in a rash and negligent manner dashed against the deceased from 3 behind, as such, he fell down and sustained injuries and succumbed to the same.
4. Petitioner No.1 is the wife of the deceased and petitioner Nos.2 and 3 are the daughters of the deceased. Respondent is the Corporation to which the offending Bus belongs to.
5. The deceased at the time of the accident was aged about 69 years and was a Retired Section Officer. The petitioners as legal heirs of the deceased preferred MVC No.1609/2016 before the Tribunal.
6. On service of notice, the respondent has appeared before the Tribunal, denied the liability and sought for dismissal of the claim petition.
7. The petitioners examined two witnesses and got marked Exs.P.1 to P.11. The respondent examined one witness.
4
8. Based on the pleadings and evidence let in, the Tribunal came to the conclusion that the accident happened due to rash and negligent driving of the Bus belonging to the respondent but there was also contributory negligence on the part of the deceased and on facts has held, the contributory negligence on the part of the deceased to an extent of 20%. The Tribunal has awarded a sum of Rs.5,05,000/- along with the interest at 6% per annum from the date of petition till the date of realization as compensation to the petitioners. Not satisfied by the same, the petitioners have preferred this appeal.
9. The accident is of the year 2016. The deceased was aged 69 years at the time of the accident. He was drawing a monthly pension of Rs.21,094/-. The Tribunal on the ground that even after his death his wife would receive 36% of the pension has deducted Rs.7,594/- from the monthly pension of Rs.21,094/- and considered the income at Rs.13,500/- per month to calculate the loss of dependency. We do not agree with the Tribunal in this 5 regard. The Hon'ble Supreme Court in Vimal Kanwar v. Kishore Dan [(2013)7 SCC 476] at paragraphs 18 and 19 has held as under:
"18. The first issue is "whether Provident Fund, Pension and Insurance receivable by the claimants come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction."
19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello vs. Maharashtra SRTC [(1999)1 SCC 90]. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. ..............."
Thus, we deem it appropriate to consider the entire pension of Rs.21,094/- as the income of the deceased to calculate the loss of dependency. The deceased being 69 years at the time of the accident, as per the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi [(2017)16 SCC 680], would not be entitled to any future prospects. Petitioner no.2 being a married daughter cannot be considered a dependent. Thus, on the count of loss of 6 dependency, the petitioners will be entitled to a sum of Rs.8,43,760/- as against Rs.5,40,000/- awarded by the Tribunal [Rs.21,094/- X 12 X 5 X 2/3rd].
10. As per the law laid down by the Hon'ble Supreme Court in New India Assurance Co.Ltd. v. Somwati [(2020)9 SCC 644], the petitioners being wife and daughters of the deceased are entitled to a sum of Rs.40,000/- each towards loss of consortium. Thus, they are entitled a sum of Rs.120,000/- towards loss of consortium.
11. The petitioners are further entitled to a sum of Rs.30,000/- towards loss of estate and funeral expenses. Thus, in all, the petitioners are entitled to a sum of Rs.9,93,760/- as against Rs.6,65,000/- awarded by the Tribunal. We have perused Ex.P3 which is spot mahazar and it also contains sketch depicting the accident. The accident has happened in the middle of the road while the deceased was crossing the road. There is negligence on part of the deceased and the Tribunal, in our opinion, has 7 rightly assessed his negligence at 20%. Thus, 20% of the sum has to be deducted towards contributory negligence on the part of the deceased. Further, the interim compensation of Rs.15,000/- which has been already paid by the respondent also needs to be deducted. Hence, the following:
ORDER
i) Appeal stands allowed.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.9,78,760/- as against Rs.5,05,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.
iii) 20% of the contributory negligence apportioned on the deceased is confirmed.
iv) The insurance company shall deposit the re-assessed total compensation determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. 8
v) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
vi) The modified compensation shall be disbursed in terms of the order of the Tribunal.
vii) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE MH/-