Karnataka High Court
Mini Ashok Kumar vs The Managing Director on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24387
MFA No. 2327 of 2020
C/W MFA No. 6466 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 2327 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6466 OF 2021(MV-D)
IN MFA NO.2327/2020
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
BENGALURU CENTRAL OFFICE,
SARIGE BHAVANA K. H. ROAD,
SHANTHINAGAR, BENGALURU - 560 027.
REPRESENTED BY ITS CHIEF LAW OFFICER
...APPELLANT
(BY SRI. N. KUMAR, ADVOCATE)
AND:
Digitally signed by 1. MINI ASHOK KUMAR
VEDAVATHI A K
Location: High
W/O LATE P. R. ASHOK KUMAR,
Court of AGED ABOUT 51 YEARS,
Karnataka
2. AKHILA ASHOK KUMAR
D/O LATE P. R. ASHOK KUMAR,
AGED ABOUT 23 YEARS,
BOTH ARE R/AT D 152,
PRASANNA REDDY BUILDING,
BEHIND PANCHAYAT OFFICE,
NERALURU, BENGALURU - 560 107.
...RESPONDENTS
(BY SRI. PRAKASH H C., ADVOCATE FOR R1 & R2)
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NC: 2024:KHC:24387
MFA No. 2327 of 2020
C/W MFA No. 6466 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.20.11.2019 PASSED IN MVC NO.1046/2019 ON
THE FILE OF THE II ADDITIONAL JUDGE, ACMM, COURT OF
SMALL CAUSES, BENGALURU (SCCH-13), AWARDING
COMPENSATION OF RS.12,61,745/- WITH INTEREST AT 6
PERCENT P.A. FROM THE DATE OF PETITION TILL THE
DEPOSIT.
IN MFA NO.6466/2021
BETWEEN:
1. MINI ASHOK KUMAR
W/O LATE P. R. ASHOK KUMAR,
AGED ABOUT 52 YEARS,
2. AKHILA ASHOK KUMAR
D/O LATE P. R. ASHOK KUMAR,
AGED ABOUT 24 YEARS,
APPELLANT NO.1 & 2 ARE R/AT
D. 152, PRASANNA REDDY BUILDING,
BEHIND PANCHAYAT OFFICE,
NERALURU, BENGALURU - 560 107.
...APPELLANTS
(BY SRI. PRAKASH H C., ADVOCATE)
AND:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
K. H. ROAD, BENGALURU - 560 027.
...RESPONDENT
(BY SRI. N. KUMAR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.20.11.2019 IN MVC NO.1046/2019 ON THE FILE
OF THE II ADDITIONAL SMALL CAUSES JUDGE AND THE MACT,
BENGALURU, (SCCH-13), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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NC: 2024:KHC:24387
MFA No. 2327 of 2020
C/W MFA No. 6466 of 2021
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.2327/2020 is filed by the appellant/KSRTC challenging the award of compensation granted to the respondents by the Court of Additional Small Causes Judge and the Motor Accident Claims Tribunal at Bengaluru (SCCH-13), whereas, MFA No.6466/2021 is filed by the claimants for enhancing the compensation awarded by the Tribunal.
2. Heard the arguments of learned counsel for both the parties.
3. The appellant/KSRTC in MFA No.2327/2020 is respondent in MVC No.1046/2019 and the appellants in MFA 6466/2021 are the petitioners/claimants in MVC No.1046/2019 (herein referred as claimants/petitioners).
4. The status of the parties before the Tribunal is retained for the sake of convenience -4- NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021
5. The case of the petitioners is that they have filed this petition under Section 173(1) of Motor Vehicles Act, 1988, claiming compensation of Rs.36,00,000/- for death of P.R.Ashok Kumar, who died in the road traffic accident.
6. It is alleged that on 04.12.2018 at about 1.30 p.m., when the deceased was crossing the road near Neralur Panchayath office on Hosur-Bangalore, NH-7 road cautiously, by observing all the traffic rules and norms, by that time a KSRTC Bus bearing Reg.No.KA-42-F-1794 came in a rash and negligent manner and dashed to the deceased, as a result of which, he fell down and sustained grievous injuries. Immediately, he was taken to Sparsh Hospital, Bengaluru and later for further treatment he was shifted to the private Hospital at Palakad, Kerala State wherein he succumbed to the injuries on 10.12.2018. The deceased was aged about 54 years and was earning Rs.30,000/- per month. The 1st and 2nd petitioners are the wife and daughter of the deceased respectively. Due to the death of deceased, they lost the dependency. Hence, they claim compensation.
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NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021
7. In response to the notice, respondent-KSRTC has appeared through its counsel and filed statement of objections by denying the rash and negligent driving of the driver of the Bus and contended that the time and date of accident in question was on its schedule trip from Hosur to Bengaluru, vehicle was driven slowly and cautiously on the left side of the road by observing all traffic rules and regulations. It was proceeding on national high way and the deceased has violated the traffic rules and he himself has suddenly crossed the road and he was also under the influence of alcohol, due to which, accident has occurred. The driver was no way responsible for the accident. Further it has denied the age, occupation, income of the deceased and prays for dismissal of the claim petition.
8. Based upon the pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that the death of Sri.P.R.Ashok Kumar is on account of the RTA on 04.12.2018 at about 1.30 p.m. near Neralur Panchayath Office, Hosur-Bengaluru NH-07 Road, Attigele Hobli, Bengaluru District and accident had taken place due to rash and negligent driving by the driver of -6- NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 KSRTC Bus Vehicle bearing registration No.KA-42-F-1794 as alleged in the petition?
2. Whether petitioners prove that they are the Legal Representatives of the Sri. P.R.Ashok Kumar?
3. Whether the petitioners prove that they are entitled for the compensation as claimed? If so, to what extent and from whom?
4. What order or award?
9. To prove the case of the claimants, the 2nd claimant got examined as PW-1 and got marked 13 documents as Ex.P.1 to P.13 and Respondent has examined two witnesses as RW-1 and RW-2 and got marked three documents as Ex.R.1 to R.3.
10. After hearing the arguments, Tribunal has answered issue Nos.1 and 2 in the Affirmative, issue No.3 in the Partly Affirmative and awarded compensation of Rs.12,61,745/- with interest at the rate of 6% p.a. and allowed the petition in-part.
11. Being aggrieved by fastening the liability and quantum of compensation awarded by the Tribunal, the -7- NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 KSRTC has filed the appeal. Whereas, the claimants being aggrieved by the compensation awarded by the Tribunal have filed the appeal for enhancement of compensation.
12. Having heard the arguments and perusing the records, the points that arise for my consideration are as follows:-
1. Whether the Tribunal has justified in giving the finding that the accident has occurred due to rash and negligent driving of the Driver of the KSRTC bus or on the negligence of the deceased?
2. Whether the compensation awarded by the Tribunal required to be enhanced/reduce, if so, what award?
13. On perusal of the records, it reveals that on 04.12.2018 at about 1.30 p.m., the deceased Ashok Kumar was crossing the road near Neralur Panchayath office, at that time, a KSRTC Bus came in a rash and negligent manner and dashed against the deceased. Due to which, he sustained injuries. It is not in dispute that the deceased has succumbed to the injuries sustained in the accident. This Court has to consider only the aspect of negligence of deceased or the driver of the KSRTC Bus for -8- NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 occurrence of accident by re-appreciating the evidence on record. Of course, PW-1 is not an eye witness to the accident, whereas, the police have investigated the matter and filed charge sheet against the driver of the KSRTC Bus. The respondent-KSRTC driver has given evidence stating that this accident was occurred due to the negligence of the deceased himself, who has crossed the road under the influence of alcohol.
14. In order to prove the contention, the respondent has not produced any evidence or examined any independent witness or passenger of the Bus or produced any document to show that the deceased was under the influence of alcohol at the time of accident. Ex.R2 is the MLC Extract issued by the Sparsh Hospital and other medical records especially Ex.P.12 and Ex.R-3 in patient records which reveals that the deceased had not consumed alcohol when he was brought to the hospital immediately after the accident. Subsequently, the deceased was taken to some other hospital at Kerala and got treated but he was succumbed to the injuries. Except -9- NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 the oral contention of the driver stating that he has followed all the rules and regulations and was driving slowly, the deceased himself came in contact of the right side of the bus etc., cannot be acceptable without any collaborative evidence on record.
15. On the other hand, in the FIR - Ex.P.1, complaint
- Ex.P.2, Spot Mahazar - Ex.P.3 and Spot Sketch - Ex.P.4, it was found that the accident had occurred due to rash and negligent driving of the driver of the KSRTC Bus. Therefore, the Tribunal has rightly held that the accident had occurred purely on the negligence on the part of the driver of the Bus and not due to negligence on the part of the pedestrian/deceased. Therefore, the Tribunal has rightly answered issue No.1 in favour of the claimants as against the KSRTC.
16. With regard to the quantum of compensation, even though there is no documents produced, the Tribunal has considered the income of the deceased at Rs.11,000/- per month. The accident is of the year 2018. As per the
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NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 chart recognized by the Karnataka State Legal Service Authority Rs.12,500/- is required to be considered as Notional Income. The deceased was aged about 54 years at the time of the accident and hence, 10% has to be added towards future prospectus. Hence, Rs.13,750/- (12,500 + 10%) is taken as income of the deceased. As there is two dependants, 1/3rd of the income has to be deducted towards personal expenses. Hence, income of the deceased comes to Rs.9,167/-. As the deceased was aged about 54 years at the time of the accident, the appropriate multiplier applicable is '11'. Therefore, an amount of Rs.12,10,044/- (9,167 x 12 x 11) is awarded under the head 'loss of dependency'.
17. Towards 'loss of consortium', the Tribunal has awarded Rs.40,000/- and Rs.30,000/- towards 'love and affection'. As per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others1, petitioner No.1 being
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NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 wife of the deceased is entitled for loss of marital consortium of Rs.40,000/- and petitioner No.2 being daughter of deceased is entitled for parental consortium of Rs.40,000/-. Therefore, the claimants are entitled for a sum of Rs.80,000/- towards 'loss of consortium' instead of Rs.70,000/- awarded by the Tribunal.
18. Towards 'loss of estate' and 'transportation of dead body and funeral expenses', Rs.15,000/- each has been awarded by the Tribunal. An amount of Rs.1,93,745/- is awarded by Tribunal under the head 'medical expenses' and the same is kept intact.
19. The Tribunal has awarded an amount of Rs.15,000/- under the head 'transportation of dead body and funeral expenses'. It is just and appropriate to award an amount of Rs.30,000/- under the said head.
20. However, it has to be noted that the injured was first taken to the Sparsh Hospital, Bengaluru and for
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NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021 further treatment he was shifted to private hospital at Palakad, Kerala State almost more than 500kms from Bengaluru and definitely, the claimants would have spent some amount towards transportation of the injured by an ambulance or any other vehicle. Therefore, an amount of Rs.20,000/- is awarded towards 'transportation'.
21. Accordingly, claimants are entitled for compensation as under:-
Heads Amount in Rs.
Loss of dependency 12,10,044-00
Loss of consortium 80,000-00
Transportation of dead body 30,000-00
and funeral expenses
Medical expenses 1,93,745-00
Transportation 20,000-00
Total 15,33,789-00
Hence total compensation of Rs.15,33,789/- is
rounded off to Rs.15,33,790/-.
Accordingly, the following:-
ORDER
1. The appeal in MFA No.2327/2020 filed by the KSRTC is hereby dismissed.
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NC: 2024:KHC:24387 MFA No. 2327 of 2020 C/W MFA No. 6466 of 2021
2. The appeal filed by the claimants in 6466/2021 is allowed in-part.
3. The judgment and award dated 20.11.2019 passed in MVC No.1046/2019 by the Court of Additional Small Causes Judge and the Motor Accident Claims Tribunal at Bengaluru (SCCH-
13) is hereby modified.
4. The appellants are entitled for compensation of Rs.15,33,790/- together with interest at 6% per annum from the date of petition till the date of realization.
5. The apportionment, deposit and release of amount shall be made in terms of the award of the Tribunal.
6. The statutory deposit made by the appellant- KSRTC is ordered to transmitted to the Tribunal.
Sd/-
JUDGE VS List No.: 1 Sl No.: 35 CT:SK