Karnataka High Court

Mrs. Gowramma vs The Manager Legal on 6 December, 2021

Bench: P.N.Desai

                              1




     IN THE HIGH COURT OF KARNATAKA, BENGALURU

      DATED THIS THE 06TH DAY OF DECEMBER 2021

                         BEFORE

          THE HON'BLE MR.JUSTICE P.N.DESAI

             M.F.A. NO.5902 OF 2013 (MV)

BETWEEN:

1.     MRS. GOWRAMMA,
       W/O. LATE PATALAPPA,
       AGED ABOUT 43 YEARS.

2.     SRI. AVINASH. P,
       S/O. LATE PATALAPPA,
       AGED ABOUT 21 YEARS.

3.     SMT. JAYAMMA,
       W/O. VENKATESH,
       AGED ABOUT 25 YEARS.

4.     SMT. UMA,
       W/O. SHAMBAIAH,
       AGE 25 YEARS.

5.     SMT. BHAGYA,
       W/O. SAMPANGI,
       AGE 23 YEARS.

APPELLANT Nos.1 TO 3 ARE RESIDING
AT SUBMANGALA, KASABA HOBLI,
ANEKALTALUK,
BANGALORE RURAL DISTRICT-591213.

APPELLANT Nos.4 AND 5 ARE RESIDING
AT ANJANAPURA, KONANA KUNTE CROSS,
BANGALORE - 560 050.
                                       ...APPELLANTS

(BY SHRI CUCKOO DELHI, ADVOCATE)
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AND:

THE MANAGER LEGAL,
K.S.R.T.C,
SHANTHINAGAR,
DOUBLE ROAD,
BANGALORE - 560 027.
                                                 ...RESPONDENT
(BY SMT. VIJAYALAKSHMI K, ADVOCATE FOR
    SRI SHANKARGOUD. G, ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED:23.02.2013 PASSED IN MVC
NO.1733/2012 ON THE FILE OF XIII ADDL. SMALL CAUSE JUDGE
AND MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal lays challenge to the judgment and award

passed by the XIII Additional Small Cause Judge, and

Member, MACT, Bengaluru on 23.02.2013 in MVC

No.1733/2012, wherein the tribunal awarded compensation

of Rs.3,80,000/- with interest at 6% per annum to the

petitioners from the date of petition till realization of entire

amount.

2. Brief case of the claimant is that on 25.10.2011

at about 04:00 pm., while the deceased - Patalappa was

standing in the bus stop in front of Gandhi Kuteera circle,

Anekal Town, at that time, the driver of the bus bearing

registration No.KA-41-F-034 came in a rash and negligent

manner and dashed against the deceased. Due to the

impact, said Patalappa fell down and sustained grievous

injuries. Immediately, after the accident, he was shifted to

Anekal Government hospital and thereafter, he was shifted

to Bengaluru Hospital, but on the way to the hospital,

Patalappa succumbed to the injuries sustained in the

accident. The petitioners being the wife and children of

deceased filed a claim petition contending that the

deceased was hale and healthy before the accident and was

working as a Mason. They have spent around Rs.10,000/-

for transportation of dead body and Rs.50,000/- towards

funeral expenses and prays for award of compensation.

3. The respondent-corporation appeared through

counsel and filed written statement. The respondent denied

the contention of the petitioners and on the other hand, the

respondent contended that the accident occurred due to the

negligence of the deceased himself. Hence, they contended

that the petitioners are not entitled for compensation.

4. The tribunal after considering the pleadings and

contentions of the parties, framed the following issues:

"1. Whether the petitioners prove that deceased Sri.Patalappa was died in RTA arising out of accident alleged to have been taken place on 25.10.2011 at about 4:00 p.m. in front of Gandhi Kuteera Cricle, Anekal Town, due to the rash and negligent driving of the bus bearing No.KA-41-F-034?

2. Whether the petitioners are entitled for compensation? If so what amount and from whom?

3. What order or award?"

5. Before the tribunal petitioner No.2-Avinash got

examined himself as PW.1, got marked eight documents as

Exs.P1 to P8 which consists of FIR/complaint, charge sheet,

PM report, Inquest report, spot mahazar, sketch, IMV

report and notarized copy of ration card. On behalf of the

respondent-Corporation one Venkataswamy got examined

himself as RW.1, got marked one document as Ex.R1 i.e.,

Certified copy of judgment in C.C.No.1455/2011.

6. After hearing the arguments of learned counsel

for the parties and perusing the records, the tribunal has

passed the impugned judgment and award which is now

challenge in this appeal.

7. Heard Sri Cuckoo Delhi, learned counsel for the

appellant and Smt. Vijayalakshmi K, learned counsel for

Sri. Shankar Goud G. for respondent.

8. Learned counsel for the appellants argued that

the document produced by the petitioners and police

reports indicate that at the time of accident, the age of the

deceased was 47 years. The tribunal relying on the ration

card - Ex.P8, taken the age of the deceased as 55 years

and applied the multiplier of '11' which is not proper. Since

Ex.P3 - post mortem reveals that as on the date of the

accident, the age of the deceased was 47 years. The

deceased by working as a Mason was earning a sum of

Rs.9,000/- per month, but the tribunal has erred in taking

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

is on the lower side and the appellants are all depending

upon the deceased as he was the only bread earner in the

family. Therefore, learned counsel for the appellants prayed

to modify the impugned judgment and award by enhancing

the compensation.

9. Against this learned counsel for respondent-

Corporation argued that the tribunal has rightly considered

that the deceased would fall under the age group between

51 to 55 years as on the date of the accident and applied

multiplier of '11' which is the appropriate multiplier, in view

of the decision of Hon'ble Supreme Court in the case

ofSmt. Sarla Verma & Ors. V. Delhi Transport

Corporation & Anr. reported in (2009) 6 SCC 121.

Learned counsel further argued that ration card - Ex.P8

shows that the age of the deceased is 55 years and the

tribunal has considered the age of deceased as 55 years

and rightly applied the multiplier. With these main

arguments he prays to dismiss the appeal.

10. I have heard the arguments of learned counsel

for the parties and perused the entire records and evidence.

11. It is stated by the learned counsel for the

appellants that the deceased was working as a Mason. The

tribunal held that in the absence of proof of any income and

documentary evidence, it is appropriate to take income of

the deceased at Rs.5,000/- per month. The accident

occurred in the year 2011. In the absence of proof of

income, the notional income of the deceased is to be

assessed as per the chart accepted in the Lok-Adalath, is

Rs.6,500/- for the year 2011. Hence, it is just and proper to

take income of the deceased at Rs.6,500/- per month for

the year 2011.

12. Regarding age of the deceased is concerned,

ofcourse the tribunal has made some guess work by

considering the ration card - Ex.P8 and held that the age of

the deceased as on the date of the accident would come

under the age group between 50-55 years. However, as per

the documentary evidence produced by the petitioners such

as FIR, complaint, wound certificate, PM report and inquest

report, the age of the deceased shown as 47 years.

Ofcourse, the ration card is produced to establish the

relationship between petitioners and deceased. The

observation made by the tribunal with regard to considering

the age of the deceased may not be acceptable and it is

only guess work. The villagers may not be knowing exact

year, when actually they are born and as per ration card,

the tribunal cannot assess the approximate age of the

deceased. Looking to the other evidence and documents

produced by the petitioners, the age of the deceased can be

taken as '47' years and as per the decision of Sarla

Verma's case supra, the appropriate multiplier applicable

to the age group of 47 is '13' and the multiplier applied by

the tribunal as '11' is not just and reasonable. As there are

two dependents, 1/3rd income of the deceased has to be

deducted towards his personal and living expenses as per

the decision of Sarla Verma's case supra. Accordingly,

the compensation towards 'loss of dependency' works out

to Rs.6,500 x 1/3 = 2167 - 6,500 = Rs.4,333/-.

Rs.4,333/- x 12 x 13 = Rs.6,75,948/-.

13. Further the appellant No.1 is the wife of

deceased - Patalappa. The tribunal has awarded a sum of

Rs.20,000/- towards 'loss of consortium' which is not just

and reasonable. In view of the decision of Hon'ble Supreme

Court reported in (2018) 18 Supreme Court Cases 130,

in the case of Magma General Insurance Co. Ltd., Vs.

Nanu Ram and others, the wife is entitled for a sum of

Rs.40,000/- towards loss of spousal consortium.

14. Further as per the decision in the case of

National Insurance Company Limited Vs. Pranay Sethi

and others, reported in (2017) 16 Supreme Court

Cases, 680, a sum of Rs.15,000/- is to be awarded

towards funeral expenses and Rs.15,000/- towards loss of

estate. Totally it comes to Rs.30,000/- and the same is

awarded. Ofcourse, petitioner No.2 is the son of deceased

who is aged about 20 years and petitioner Nos.3 to 5 are

married daughters and there is no evidence produced to

show that they are depending upon on the deceased.

15. Therefore, considering the evidence placed by

the appellants, the compensation awarded by the tribunal

need to be re-judged and recalculated under the difference

heads of compensation as under:-

Sl. Particulars Compensation Compensation re-

                       awarded by      the   determined by this
No.                    Tribunal              court

1.    Loss of          Rs.3.30,000/-         Rs.6,75,948/-
      dependency

2.    Loss of spouse   Rs.20,000/-           Rs.40,000/-





       consortium and
       parental
       consortium

3.     Love and          Rs.10,000/-          --
       affection

4.     Loss to Estate    Rs.10,000/-          Rs.15,000/-

5.     Funeral           Rs.10,000/-          Rs.15,000/-
       expenses

                   Total Rs.3,80,000/-        Rs.7,45,948/-

In the result, I proceed to pass the following:

ORDER

(i) The appeal is partly allowed.

(ii) The impugned judgment and award passed by

the XIII Additional Small Causes Judge, and Member,

MACT, Bengaluru dated 23.02.2013 having been modified,

the compensation is enhanced to Rs.7,45,948/- (Rupees

Seven Lakh Forty Five Thousand Nine Hundred and Forty

Eight only) instead of Rs.3,80,000/- awarded by the

tribunal.

(iii) However, the other conditions of the tribunal

regarding apportionment and interest remained unaltered.