Karnataka High Court
The Divisional Controller vs Smt.K. Maremma on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102268 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.102487 OF 2016
IN MFA NO.102268 OF 2016
BETWEEN:
1. SMT. K. MAREMMA
W/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 52 YEARS.
2. K. KUMARASWAMY
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 36 YEARS.
3. K. CHANDRANNA
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 34 YEARS.
Digitally signed 4. K. PALAKSHI
by VINAYAKA B V
Location: HIGH
S/O. LATE K. HANUMANTHAPPA,
COURT OF AGED ABOUT 32 YEARS
KARNATAKA
5. K. SHEKANNA
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 30 YEARS,
ALL ARE RESIDENTS OF YELUBENCHI VILLAGE
IN BALLARI TALUKA & DISTRICT-583103.
...APPELLANTS
(BY SRI Y. LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. LAKSHMANA S/O. KARIYAPPA GALAKANAVAR,
AGED ABOUT 29 YEARS,
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
DRIVER OF THE KSRTC BUS BEARING
REGN. NO.KA-35/F-85,
SANDUR DEPOT IN BALLARI DISTRICT,
R/O. KARADIGUDDA S.A. VILLAGE,
YENDIGERI POST, BADAMI TALUKA OF
BAGALKOT DISTRICT-561213.
2. THE DIVISIONAL CONTROLLER,
HOSAPETE DIVISION, SANDUR DEPOT,
BALLARI DISTRICT-583102.
...RESPONDENTS
(BY SRI S.C. BHUTI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 12.02.2016 PASSED IN MVC NO.310/2014 ON THE
FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, AT
BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
AND ETC.,
IN MFA NO.102487 OF 2016
BETWEEN:
THE DIVISIONAL CONTROLLER,
HOSPET DIVISION, SANDUR DEPOT,
BALLARI DISTRICT, REPRESENTED BY
CHIEF LAW OFFICER, NEKRTC,
CENTRAL OFFICE, KALABURAGI.
...APPELLANT
(BY SRI S.C. BHUTI, ADVOCATE)
AND:
1. SMT. K. MAREMMA
W/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 52 YEARS.
2. K. KUMARSWAMY
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 36 YEARS.
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
3. K. CHANDRANNA
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 34 YEARS.
4. K. PALAKSHI
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 32 YEARS
5. K. SHEKANNA
S/O. LATE K. HANUMANTHAPPA,
AGED ABOUT 30 YEARS,
ALL RESPONDENTS NO.1 TO 5 ARE
RESIDENTS OF YELUBENCHI VILLAGE
IN BALLARI TALUKA & DISTRICT.
6. LAKSHMANA S/O. KARIYAPPA GALAKANAVAR,
AGED ABOUT 29 YEARS,
DRIVER OF THE KSRTC BUS BEARING
REGN. NO.KA-35/F-85,
SANDUR DEPOT IN BALLARI DISTRICT,
R/O. KARADIGUDDA S.A. VILLAGE,
YENDIGERI POST, BADAMI TALUKA OF
BAGALKOT DISTRICT.
...RESPONDENTS
(BY SRI Y. LAKSHMIKANT REDDY, ADVOCATE FOR R1 TO R5;
NOTICE TO R6 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 12.02.2016 PASSED IN MVC NO.310/2014 ON THE
FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, AT
BALLARI, AWARDING THE COMPENSATION OF RS.4,54,256/- WITH
INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL THE DATE
OF DEPOSIT AND ETC.,
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
JUDGMENT
Though these appeals are listed for admission, they are taken up for final disposal with the consent of learned counsel for both the parties.
2. The above appeals are directed against the judgment and award dated 12.02.2016 passed in MVC No.310/2014 on the file of the Motor Accident Claims Tribunal- XII, Ballari (for short, 'Tribunal').
3. The claimants are in appeal in MFA No.102268/2016 being not satisfied with the quantum of compensation awarded by the Tribunal and are praying for enhancement of the same; wherein KSRTC is in appeal in MFA No.102487/2016 questioning the negligence as well as the quantum of compensation awarded by the Tribunal.
4. Brief facts of the case are that, the claimants, who are the wife and children of the deceased K.Hanumanthappa S/o. K.Gudadappa, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of K.Hanumanthappa that took place on 26.06.2013 involving TATA Sumo bearing registration No.KA- -5-
NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 34/N-1533 and KSRTC bus bearing registration No.KA-35/F-85. It is further stated that as on the date of the accident, deceased was aged 56 years, working as an agriculturist and earning Rs.3,00,000/- per annum.
5. On issuance of notice, respondent No.2-KSRTC appeared before the Tribunal and filed its written statement denying the entire claim petition averments. It is contended that claim of the claimants is highly excessive and exorbitant. The claimant No.5, son of the deceased examined himself as PW1 apart from marking Exs.P1 to P13. No witness was examined on behalf of the respondents. The Tribunal on scrutiny of material on record, allowed the claim petition in part and awarded a total compensation of Rs.4,54,256/- with interest at the rate of 7% per annum from the date of petition till realization on the following heads:
1. Towards loss of dependency Rs.4,19,256/-
2. Loss of estate Rs. 10,000/-
3. Loss of love and affection Rs. 10,000/-
4. Towards funeral expenses Rs. 10,000/-
5. Loss of consortium to the first petitioner Rs. 20,000/-
TOTAL Rs.4,69,256/-
6. The Tribunal has deducted Rs.15,000/- ex-gratia paid to claimant No.2 from Rs.4,69,256/- and awarded total Rs.4,54,256/- to the claimants. While awarding the above -6- NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 compensation, the Tribunal assessed the income of the deceased at Rs.4,500/- per month, applied multiplier of 9 taking note of the age of the deceased as 56 years. The claimants are not being satisfied with the quantum of compensation are in appeal; whereas, the KSRTC is before this Court questioning non-consideration of the negligence on the part of other vehicle and also questioning quantum of compensation awarded.
7. Heard the learned counsel Sri.Y.Lakshmikant Reddy for the appellants-claimants and learned counsel Sri.S.C.Bhuti for KSRTC and perused the appeal papers along with original records.
8. Sri.S.C.Bhuti, learned counsel for appearing for the KSRTC would submit that the accident had taken place due to the negligence on the part of the driver of TATA Sumo vehicle who applied sudden break which resulted in dashing the KSRTC bus from hind side. It is submitted that if the driver of the TATA Sumo vehicle had not applied break, the accident could have been prevented. Thus, learned counsel would submit that the Tribunal failed to examine the contention of the appellants that -7- NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 the accident had taken place due to the negligent driving by the driver of TATA Sumo. Further, learned counsel with regard to quantum submits that the accident is of the year 2013 and the income assessed by the Tribunal is proper and correct. Learned counsel would submit that the Tribunal committed error in taking the age of the deceased as 56 years in terms of PM Report-Ex.P4, whereas Ex.P12-Voter's ID indicated that the age of the deceased as 64 years. It is submitted that the Tribunal ought to have taken the age as mentioned in Voter's ID and not as mentioned in PM Report. Learned counsel would submit that if the age of the deceased is taken as 64 years, the multiplier would be 7. Further, learned counsel would also submit that the claimants are wife and children of the deceased. Children are all major and they are independent, therefore, deduction towards personal expenses would have been 50% since wife is the only dependant. Learned counsel would also submit that the Tribunal has awarded 15% of the assessed income towards future prospects, but if the age of the deceased is taken as 64 years, he would not be entitled for future prospects. Thus, he prays for allowing the appeal filed by KSRTC. -8-
NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016
9. Sri.Y.Lakshmikant Reddy, learned counsel for the claimants would submit that the Tribunal has awarded meager compensation on all the heads and seeks enhancement of the same. Thus, prays for allowing the appeal filed by the claimants.
10. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points would arise for consideration:
a) Whether the Tribunal is justified in saddling entire liability on KSRTC?
b) Whether the claimants are entitled for enhanced compensation?
Above points are answered in the affirmative for the following reasons:
11. The accident that took place on 26.06.2013 involving TATA Sumo bearing registration No.KA-34/N-1533 and KSRTC bus bearing registration No.KA-35/F-85 and the resultant death of K.Hanumanthappa, husband of claimant No.1 is not in dispute in this appeal.
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NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016
12. Learned counsel for KSRTC contended that the accident occurred solely due to the negligent driving of the driver of the TATA Sumo. He submits that as the driver of the TATA Sumo applied sudden break, it resulted in KSRTC bus dashing on the hind side of TATA Sumo. Admittedly, chargesheet for the offence punishable under Sections 279, 337 and 304A of IPC is filed against the driver of KSRTC bus. The driver of the bus has not been examined and there is no material or evidence to show that the accident had taken place due to the negligent act on the part of the driver of the TATA Sumo. Thus, the finding of the Tribunal that the accident was due to the rash and negligent driving by the driver of KSRTC bus needs no interference.
13. The accident is of the year 2013. The Tribunal has assessed the income of the deceased at Rs.4.500/- which is on the lower side. The claimants have stated that the deceased was working as an agriculturist and was earning Rs.3 lakh per annum, but no document whatsoever is placed on record to establish his income. In the absence of any material to establish the income of the deceased, it is for the Tribunal and Courts to assess the income notionally. The notional income
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NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 fixed for the year 2013 as per the chart prepared by the Karnataka State Legal Services Authority is Rs.7,000/- per month. Therefore, we deem it appropriate to assess the income of the deceased at Rs.7,000/- per month.
14. The claimants stated that the Tribunal assessed the age of the deceased at 56 years taking note of Ex.P4-PM Report, but when there is Voter's ID-Ex.P12 which indicated the age of the deceased as 64 years, it was proper for the Tribunal to take the age of the deceased as 64 years in terms of Ex.P12- Voter's ID. In a public document where the deceased himself has declared his age, it would be appropriate to take that document to determine the age of the deceased. The Tribunal committed error in taking multiplier at 9 by taking note of the age of the deceased as 56 years. If the age of the deceased is taken as 64 years, the appropriate multiplier would be 7. The Tribunal has also committed error in adding 15% of the assessed income towards future prospects taking note of the age of the deceased at 56 years. As we have determined the age of the deceased at 64 years, the claimants would not be entitled for compensation under the head of future prospects. As there are 5 dependents of the deceased, the Tribunal has
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NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 rightly deducted 1/4th towards personal and living expenses of the deceased.
15. Learned counsel for KSRTC submitted that the claimants are wife and children of the deceased. The children of the deceased are major and are between age group of 28 to 34 years. Claimant No.5 is examined as PW1. PW1 in his evidence has stated that all the claimants were totally dependent on the income of the deceased. In cross-examination, PW1 has denied the suggestion of KSRTC that brothers were not dependent upon the income of their father. Thus, there is no proper evidence to say that the children of the deceased were not dependant on him. Therefore, deduction of 1/4th towards personal expenses is proper. Thus, the claimants would be entitled for modified compensation on the head of loss of dependency as under:
Rs.7,000 (income) x 12 (months) x 7(multiplier) x 3/4(deduction) = Rs.4,41,000/-
16. Further, in terms of decision of the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd.,
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NC: 2024:KHC-D:9184-DB MFA No. 102268 of 2016 C/W MFA No. 102487 of 2016 Vs. Nanu Ram and Others1, each of the claimants would be entitled to Rs.40,000/- towards loss of consortium, besides Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
17. Learned counsel for KSRTC would submit that the amount of Rs.15,000/- as ex-gratia was paid to the claimants immediately after death of the deceased and prayed for deducting the same from the compensation determined. We are not inclined to deduct the ex-gratia payment made by KSRTC. Ex-gratia is paid to the dependents of the deceased immediately on death to overcome immediate financial distress. Such ex-gratia payment is made to the family members to over-come the financial difficulty, which cannot be equated to compensation.
18. Thus, the claimants would be entitled for modified compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 4,41,000/-
2. Loss of estate & Funeral expenses 30,000/-
3. Loss of consortium (Rs.40000x5) 2,00,000/-
Total Rs.6,71,000/-
1
2018 ACJ 2782
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
19. Thus, the claimants would be entitled to total compensation of Rs.6,71,000/- as against Rs.4,54,256/- awarded by the Tribunal.
20. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.6,71,000/- as
against Rs.4,54,256/- awarded by the
Tribunal.
c) The enhanced compensation amount shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
d) The appellant-KSRTC shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
e) Apportionment, deposit & disbursement shall be made as per award of Tribunal.
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NC: 2024:KHC-D:9184-DB
MFA No. 102268 of 2016
C/W MFA No. 102487 of 2016
f) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
g) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE RH List No.: 1 Sl No.: 13