Smt. Saralawwa @ Sarojani vs Managing Director, Ksrtc ...
2021 Latest Caselaw 3135 Kant

                         -1-



           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 11TH DAY OF AUGUST, 2021

                       BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

               MFA NO.22933/2011 (MV)
BETWEEN
1.   SMT. SARALAWWA @ SAROJANI,
     W/O. BASAPPA WALAKI,
     AGED ABOUT: 37 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O. BALOBAL, TQ:GOKAK,
     DIST: BELGAUM

2.   KUMARI SHRIDEVI
     D/O. BASAPPA WALAKI,
     AGED ABOUT: 5 YEARS,
     OCC: STUDENT,
     SINCE MINOR REPRESENTED
     BY NATURAL GUARDIAN MOTHER
     APPELLANT NO.1
     R/O. BALOBAL, TQ:GOKAK,
     DIST: BELGAUM

3.   KUMARI AISHWARYA
     D/O. BASAPPA WALAKI,
     AGED ABOUT: 07 YEARS,
     SINCE MINOR REPRESENTED
     BY NATURAL GUARDIAN MOTHER
     APPELLANT NO.1
     R/O. BALOBAL, TQ:GOKAK,
     DIST: BELGAUM


4.   SMT. RATNAWWA
     W/O. MALLAPPA WALAKI,
     AGED ABOUT: 67 YEARS,
     OCC: HOUSEHOLD
                            -2-



      R/O. BALOBAL, TQ:GOKAK,
      DIST: BELGAUM

5.    KUMAR MUTTEPPA
      D/O. BASAPPA WALAKI,
      AGED ABOUT: 13 YEARS, OCC: NIL,
      SINCE MINOR REPRESENTED
      BY NATURAL GUARDIAN MOTHER
      APPELLANT NO.1
      R/O. BALOBAL, TQ:GOKAK,
      DIST: BELGAUM
                                              ... APPELLANTS
(BY SRI. SANJAY S KATAGERI, ADVOCATE)

AND
1.    MANAGING DIRECTOR,
      KSRTC INTERNAL INSURANCE FUND,
      K.H. DOUBLE ROAD, SHANTI NAGAR,
      CENTRAL OFFICE, BANGALORE-27
      (INSURER OF NWKRTC BUS BEARING
      REGN. NO.KA-23/F-16)

2.    THE DIVISIONAL MANAGER,
      NWKRTC, CHIKKODI DIVISION,
      CHIKKODI, DIST: BELGAUM.

                                             ... RESPONDENTS
(BY SMT. VEENA HEGDE, ADV., FOR R1 AND R2)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V.
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
07.01.20112 PASSED IN MVC NO. 2374/2009 ON THE FILE OF
THE   PRINICPAL   SENIOR    CIVIL    JUDGE    AND   MEMBER
ADDITIONAL   M.A.C.T.,   GOKAK,     PARTLY   ALLOWING   THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
                                  -3-



      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
04.08.2021    AND      COMING    ON    FOR   PRONOUNCEMENT   OF
JUDGMENT        THIS    DAY,     THE   COURT    DELIVERED    THE
FOLLOWING:

                               JUDGMENT

The claimants having dissatisfied with the award

dated 07.01.2011 in MVC No. 2374/2009 passed by the

Principal Senior Civil Judge and Member Additional

M.A.C.T., Gokak (for short "the Tribunal") have filed this

appeal under section 173(1) of M.V. Act for enhancement

of the award.

2. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Tribunal.

3. The claimants had filed petition under Section

166 of M.V. Act, claiming compensation of Rs.20,00,000/-

on account of death of husband of claimant No.1, father of

claimants 2, 3 and 5 and son of claimant No.4 in road

traffic accident.

4. The facts leading to the case are that on

15.10.2009 at 2.00 p.m., deceased-Bassappa was

proceeding towards court near Corporation Bank and at

that time, NWKRTC bus bearing registration No.KA-23/F-

16 driven by its driver came in a rash and negligent

manner and dashed against Basappa, who fell down and as

a result, sustained grievous injuries. He was taken to

government hospital, Gokak and then to KLE Hospital,

Belgaum for C.T. scan and later on admitted to

Dr.R.B.Patagundi hospital for treatment but he succumbed

to the injuries on16.10.2009. It is the case of the

claimants that they have spent Rs.15,000/- towards

funeral expenses. It is also asserted that the deceased was

aged about 45 years and was earning Rs.15,000/- per

month by agriculture and milk vending business and the

claimants were completely depending on him but due to

accidental injuries, they have lost the bread earner of the

family. That, the accident in question was due to sole

negligence on the part of driver of the bus and hence, the

claimants have sought for awarding compensation of

Rs.20,00,000/- under different heads.

5. The respondents appeared before the Tribunal

and filed their objections denying the allegations and

assertions made in the claim petition. The respondent

denied that the accident is because of rash and negligent

driving on the part of the driver and they have disputed

the age, income and occupation of the deceased. It is also

asserted that the accident is because of negligence on the

part of the deceased himself and hence, they have sought

for rejection of the claim.

6. The Tribunal, after recording the evidence and

appreciating the same, has awarded the compensation

under different heads as under:

Loss of dependency                          Rs.3,78,000/-
Loss of estate                              Rs.    6,000/-
Loss of consortium                          Rs.   10,000/-
Funeral expenses                            Rs.    6,000/-
Total                                     Rs.4,00,000/-




        7.   Accordingly,       the     Tribunal    awarded

compensation of Rs.4,00,000/- with interest at the rate of

6% per annum from the date of petition. Being aggrieved

by this judgment, the claimants have filed this appeal.

8. Heard the learned counsel for the appellants-

claimants and the learned counsel for respondent.

9. Learned counsel for the appellant submitted

that the Tribunal has erred in awarding compensation of

Rs.4,00,000/- and has also erred in taking the income of

the deceased only at Rs.3,000/- though there is evidence

to show that the deceased was earning Rs.15,000/- per

month. Learned counsel would also contend that the future

prospects was not considered and the income taken by the

Tribunal is also on the lower side, and the compensation

awarded under the head of consortium is also on lower

side. Hence, he would seek for enhancement of

compensation as claimed in the claim petition to the extent

of Rs.20,00,000/-.

10. Per contra, learned counsel for respondent

would submit that the Tribunal has properly appreciated

the oral and documentary evidence and in the absence of

any material evidence, has taken the monthly income of

the deceased at Rs.3,000/- and hence, contended that the

compensation awarded by the Tribunal is just and proper.

She would also submit that only future prospects were not

awarded and that can be awarded and hence, she sought

for rejection of the appeal.

11. Having heard the arguments of the learned

counsels on both sides and perusing the records, it is

evident that the deceased was the husband of claimant

No.1, father of claimants 2, 3 and 5 and son of claimant

No.4. Further, there is no serious dispute of the fact that

he died in road traffic accident on 15.10.2009. The

Tribunal has already given a finding that the death of the

deceased is as a consequential result of road traffic

accident occurred because of rash and negligent act on the

part of the driver of NWKRTC bus bearing registration

No.KA-23/F-16. This finding of the Tribunal is not

challenged by the respondents. Hence, there is no dispute

of the fact that the accident in question is because of

actionable negligence on the part of the driver of NWKRTC

bus. There is also no dispute of the fact that the claimants

were completely depending on the deceased.

12. It is asserted by the claimants that the

deceased was aged about 45 years and this fact is again

supported by postmortem report at Ex.P8, which discloses

that deceased was aged about 45 years at the time of his

death. The death of deceased is also not in serious dispute

as the driver of NWKRTC bus was prosecuted for the

offences punishable under sections 279 and 304-A of IPC

and postmortem report again confirmed this aspect as the

death is because of the injury to brain caused due to the

accident.

13. There are five dependants on the deceased.

Discharge summary is also produced at Ex.P10 and CT

scan report is produced at Ex.P11 and 12. The documents

produced at Ex.P16 to 18 disclose that the deceased was

doing milk vending business also, and Ex.P19 to 24 are the

Records of Rights, which disclose that deceased-Basappa

was possessing agricultural lands along with his brothers

and they are joint. Hence, it is clear that the deceased was

also an agriculturist. Ex.P15 is the heirship certificate. The

claimants have produced certificates issued by Milk Co-

operative Society at Ex.P16 to 18. The Tribunal has taken

income of the deceased at Rs.3,000/- per month. No doubt

the agricultural lands are being now cultivated by the

claimants, but it is also to be noted that deceased was also

doing milk vending business. In this context, the learned

counsel for appellant has placed his reliance on a decision

of Division Bench of this Court in MFA No. 24121/2010

dated 23.08.2013 but the said facts cannot be made

applicable directly as the deceased in the said case was

growing areca nut and paddy and he was also a timber

merchant. Further, he was also maintaining a motorcycle

and therefore, the Court held that he would not have been

maintained motorcycle without there being any sufficient

income. Hence, his income was taken at Rs.7,000/- per

month. In the instant case, though it is contended that the

deceased was earning monthly income not less than

Rs.4,000/-, the Tribunal has taken the income only at

Rs.3,000/- per month, which is on lower side. In usual

course, the notional income adopted by Lok-Adalath in

settlement of accident cases of the year 2009 is around

Rs.5,000/- per month, in the absence of any proof of

income. In the absence of any contrary evidence and

considering the fact that the deceased was doing milk

vending business and he was also an agriculturist, it can

be safely presumed that his was earning Rs.5,000/- per

month. Hence, I deem it proper to consider the monthly

income of the deceased at Rs.5,000/- per month. Further,

as per the decision of the Hon'ble Apex Court in the case of

National Insurance Company Limited v. Pranay Sethi

and others reported in 2017 ACJ 2700, 25% of monthly

income needs to be added towards future prospects since

the deceased was self-employed and if it is added, the

monthly income of the deceased would be Rs.6,250/-

(Rs.5,000+Rs.1,250). Hence, his annual income would be

Rs.75,000/-. Since there are five dependants, as per the

decision of the Hon'ble Apex Court in the case of Sarla

Verma v. Delhi Transport Corporation reported in

(2009) 6 SCC 121, 1/4th of the income needs to be

deducted towards personal expenses of the deceased and

after deducting the same, the annual income of the

deceased would be Rs.56,250/-. The deceased was aged

about 45 years at the time of the accident. Hence, the

Tribunal, while calculating compensation towards loss of

dependency, has rightly applied multiplier '14'.

Accordingly, the claimants would be entitled to

Rs.7,87,500/- (Rs.56,250 x 14 =Rs.7,87,500/-) towards

loss of dependency including future prospects.

14. The Tribunal has awarded Rs.6,000/- towards

funeral expenses and it appears to be on lower side and

hence, I propose to award Rs.10,000/- towards funeral

expenses as against Rs.6,000/- awarded by the Tribunal.

15. Further, as per Ex.P29 to 31 the claimants

have spent Rs.6,300/- towards medical expenses and very

interestingly though the Tribunal has observed this aspect,

but has not awarded any amount towards medical

expenses. Hence, the claimants are entitled for Rs.6,300/-

towards medical expenses.

16. The Tribunal has awarded Rs.10,000/- towards

loss of consortium, but as per the decision of the Hon'ble

Apex Court in Magma General Insurance Company v.

Nanu Ram and others reported in 2018 ACJ 2782,

each claimant is entitled for Rs.40,000/- towards loss

consortium but since the accident is of the year 2009, I

propose to award Rs.25,000/- to each claimant towards

loss of consortium. There are five dependants and each

claimant is entitled to Rs.25,000/- towards consortium.

Hence, the claimants would be entitled to total

compensation under different heads as under:

Towards loss of dependency including Rs.7,87,500/- future prospects

Towards funeral expenses Rs.10,000/-

Towards medical expenses                              Rs.6,300/-

Towards loss of consortium            (each        Rs.1,25,000/-
claimant Rs.25,000/-

                 Total                           Rs.9,28,800/-

17. Hence, the appellants are entitled to total

compensation of Rs.9,28,800/- as against Rs.4,00,000/-

awarded by the Tribunal. Hence, the appeal needs to be

allowed and accordingly, I proceed to pass the following:

ORDER

The appeal is allowed in part and the claimants are entitled to total compensation of Rs.9,28,800/- as against Rs.4,00,000/- awarded by the Tribunal.

The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till deposit.

The order of deposit and apportionment shall be as per the order passed by the Tribunal.

The respondent-corporation is directed to deposit the enhanced compensation with interest within six weeks from the date of certified copy of this order.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

yan