Smt Sumithramma vs Smt Shankaramma
2021 Latest Caselaw 1184 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 19TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.4697 OF 2015
                           C/W
M.F.A. NO.5527 OF 2014 & M.F.A. NO.5528 OF 2014 (MV-D)


M.F.A. NO.4697 OF 2015
BETWEEN:

SMT. SUMITHRAMMA
W/O LATE S.N. VENKATARAVANAPPA
AGED ABOUT 42 YEARS
R/AT. SHEEGALAPALYA VILLAGE
SRINIVASAPURA TALUK
KOLAR DISTRICT.
                                           ... APPELLANT
(BY MR. GOPAL KRISHNA N, ADV.,)

AND:

1.     SMT. SHANKARAMMA
       W/O LATE S.N. VENKATARAVANAPPA
       AGED ABOUT 41 YEARS.

2.     MASTER SRINATHA
       S/O LATE S.N. VENKATARVANAPPA
       AGED ABOUT 16 YEARS.
                              2



3.   SMT. CHOWDAKKA
     @ BOYI CHOWDAKKA
     W/O LATE NARAYANAPPA
     AGED ABOUT 67 YEARS.

     2ND MINOR RESPONDENT IS
     REPRESENTED BY NATURAL
     GUARDIAN/MOTHER
     1ST RESPONDENT HEREIN.

     ALL ARE RESIDING AT
     SHEEGALAPALYA VILLAGE
     SRINIVSAPURA TALUK
     KOLAR DISTRICT.

4.   THE MANAGING DIRECTOR
     KARNATAKA STATE ROAD
     TRANSPORT CORPORATION
     CENTRAL OFFICE, K.H.ROAD
     SHANTHINAGAR, BANGALORE-27.
                                         ... RESPONDENTS
(BY MR. RAME GOWDA, ADV., FOR R1 TO R3
R2 MINOR REP. BY R1
    MR. D. VIJAY KUMAR, ADV., FOR R4)

                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED IN MVC NO.3027/2013 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, 41ST ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.5527 OF 2014 BETWEEN:

KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINAGAR, BANGALORE BY ITS MANAGING DIRECTOR.

... APPELLANT (BY MR. D. VIJAYA KUMAR, ADV.,)

AND:

1. SMT. SUMITHRAMMA W/O LATE S.N. VENKATARAVANAPPA AGED ABOUT 41 YEARS.

2. SMT. SHANKARAMMA W/O LATE S N VENKATARAVANAPPA AGED ABOUT 40 YEARS.

3. MASTER SRINATH S/O LATE S N VENKATARAVANAPPA AGED ABOUT 15 YEARS.

RESPONDENT NO.3 IS MINOR REP BY MOTHER AND NATURAL GUARDIAN SMT. SHANKARAMMA THE 2ND RESPONDENT.

4. SMT. CHOWDAKKA @ BOYI CHOWDAKKA W/O LATE BOYI NARAYANAPPA AGED ABOUT 67 YEARS.

ALL ARE R/AT. NO.349 ULLAL UPANAGAR AMBEDKAR NAGAR 8TH CROSS, BANGALORE 560056.

PRESENT ADDRESS OF RESPONDENTS NO.1, 2 & 3, NO.19, SHIGALAPALY VILLAGE SRINIVASAPURA TALUK KOLAR DISTRICT.

... RESPONDENTS (BY MR. GOPALAKRISHNA N, ADV., FOR R1 R2 SERVED R3 IS MINOR REP. BY R2 R4 SERVED)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED IN MVC NO.3027/2013 ON THE FILE OF THE XIX ADDL. SCJ, MACT & XLI ACMM, BANGALORE, AWARDING COMPENSATION OF RS. 9,49,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. NO.5528 OF 2014 BETWEEN:

KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K H ROAD SHANTHINAGAR, BANGALORE BY ITS MANAGING DIRECTOR.

... APPELLANT (BY MR. D. VIJAYA KUMAR, ADV.,)

AND:

1. SMT. SHANKARAMMA W/O LATE S N VENKATARAVANAPPA AGED ABOUT 39 YEARS.

2. SMT. ROOPA W/O SRI. NARAYANASWAMY D/O LATE S.N. VENKATARAVANAPPA AGED ABOUT 21 YEARS.

3. SRINATH S/O LATE S N VENKATARAVANAPPA AGED ABOUT 14 YEARS.

RESPONDENT NO.3 IS MINOR REP BY MOTHER AND NATURAL GUARDIAN SMT SHANKARAMMA THE 1ST RESPONDENT.

4. SMT. CHOWDAKKA @ BOYI CHOWDAKKA W/O LATE BOYI NARAYANAPPA AGED ABOUT 76 YEARS.

ALL ARE RESIDING AT: NO.349 ULLAL UPANAGAR AMBEDKAR NAGAR 8TH CROSS, BANGALORE-560056.

PRESENT ADDRESS OF

NO.19, SHIGALAPALY (V) (DIST)

SRINIVASAPURA TALUK KOLAR DISTRICT.

... RESPONDENTS (BY MR. K. RAME GOWDA, ADV., FOR R1 TO R4)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.05.2014 PASSED IN MVC NO.4415/2013 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE & XLI ACMM, MACT, BANGALORE, AWARDING COMPENSATION OF RS.9,49,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.4697/2015 has been filed by the claimants

seeking enhancement of the amount of compensation,

whereas, M.F.A.No.5527/2015 and M.F.A.No.5528/2015

have been filed by the Karnataka State Road Transport

Corporation (hereinafter referred to as 'the KSRTC' for short)

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short) against the

judgment dated 06.05.2014 passed by the Motor Accident

Claims Tribunal. Since, all these appeals arise out of the

same accident and from the same judgment, they were

heard together and are being decided by this common

judgment.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 19.01.2013, the deceased SN

Venkataravanappa was walking alongside the mud path near

Sheegalapalya Gate, Bangalore-Madanpalli Road. At that

time, a KSRTC bus bearing Registration No.KA-40-F-808

which was being driven by its driver in a rash and negligent

manner, came from the opposite direction and dashed

against the deceased. As a result of the aforesaid accident,

the deceased sustained grievous injuries and succumbed to

the same.

3. The claimants in M.F.A 4697/2015 thereupon

filed a petition namely M.V.C 3027/2013 under Section 166

of the Act claiming compensation on the ground that the

deceased was aged about 45 years at the time of accident

and was engaged as a coolie and was earning a sum of

Rs.10,000/- per month. It was further pleaded that accident

took place solely on account of rash and negligent driving of

the bus by its driver. The claimants claimed compensation to

the tune of Rs.25,00,000/- along with interest.

4. The KSRTC filed written statement, in which the

mode and manner of the accident was denied. It was pleaded

that the accident occurred on account of the negligence of

the deceased himself in crossing the road. The age,

avocation and income of the deceased was also denied and it

was pleaded that the claim of the claimants is exorbitant and

excessive.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 and claimant No.2 in MVC

3027/2013 examined themselves as PW-1 and PW-2 and got

exhibited documents namely Ex.P1 to Ex.P18. The

respondents examined Erappa as RW1 and no documents

were marked on behalf of the respondents. The Claims

Tribunal, by the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent driving

of the KSRTC bus by its driver. It was further held, that as a

result of aforesaid accident, the deceased sustained injuries

and succumbed to the same. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.9,49,000/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal has been filed seeking

enhancement of the amount of compensation.

6. Learned counsel for the KSRTC submitted that

the Tribunal grossly erred in not attributing negligence on the

part of the deceased in causing the accident when RW 1

Erappa, who is an eye witness to the accident, has clearly

stated in his evidence that the accident has occurred on

account of negligence of the deceased himself in crossing the

road. It is further submitted that the evidence on record

indicates that the deceased was under the influence of

alcohol and was crossing the road at a spot where there was

admittedly no zebra crossing. It is also submitted that the

Tribunal erred in deducting 1/4th towards personal expenses

instead of 1/3rd when it is clear that claimant No.1 in MVC

No.3027/2013 who is the second wife of the deceased and

claimant No.2 in MVC 4415/2013 who is the married

daughter of the deceased are not dependants on the income

of the deceased. It is also urged that the Tribunal erred in

applying the multiplier of '14' instead of '13' when Ex.P15

Ration card clearly indicates that the age of the deceased is

48 years.

7. On the other hand, learned counsel for the claimants

submitted that the Tribunal has grossly erred in assessing

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

any case, the same ought to have been taken as per the

guidelines framed by the Karnataka State Legal Services

Authority. It is further submitted that the claimant no.1 and

2 in MVC No.4415/2013 are not entitled to compensation as

they are not dependant on the income of the deceased. It is

also urged that the sums awarded under the heads 'loss of

consortium' and 'funeral expenses' are on the lower side and

deserves to be enhanced suitably.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is well settled in law that when an accident happens

through the combined negligence of two persons, he alone is

liable to the other who had the last opportunity of avoiding

the accident by reasonable care, and who then knew or

ought to have known of the danger caused by the other's

negligence. [See: SALAMOND ON THE LAW OF TORTS,

TWELFTH EDITION 1957 PAGE 439-441]. The general

rule is that the vehicle should be driven at a speed which

enables the driver to stop within the limits of his vision and

failure to do this will almost always result in the driver being

held, in whole or in part, responsible for the collision. [See:

CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION,

1954 PAGES 368-370]. It is equally well settled legal

proposition that burden of proving negligence lies on the

person who alleges it. The Supreme Court in 'MUNICIPAL

CORPORATION OF GREATER BOMBAY VS. LAKSHMAN

IYER AND ORS.' AIR 2003 SC 4182 held that the crucial

question in case of contributory negligence is whether either

party could by reasonable care, have avoided the

consequences of other's negligence. The finding with regard

to contributory negligence has to be recorded on the basis of

proper consideration of the pleadings and legal evidence

adduced by both the parties and the same cannot be based

merely on police records. [See: 'MINUROUT VS. SATYA

PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND

'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE

INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well

settled in law that burden to prove breach of duty on the part

of the victim lies on the insurance company and the

insurance company has to discharge the burden. [SEE:

'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES',

(2009) 14 SCC 71].

9. In the instant case, the claimants have examined

themselves to prove their case. Ex.P1 FIR, Ex.P2 Complaint

and Ex.P5 Chargesheet have been filed against the driver of

the KSRTC bus. Ex.P3 Panchanama describes the spot of

accident. It is also pertinent to note that though the KSRTC

has taken the plea of contributory negligence on the ground

that the deceased was under the influence of alcohol at the

time of the accident, no evidence except for the self serving

testimony of the driver of the offending bus is adduced to

substantiate the plea of contributory negligence. Therefore,

the Tribunal has on meticulous appreciation of evidence on

record and on the basis of preponderance of probabilities

has rightly held that that the accident occurred on account of

negligence of the driver of the KSRTC bus.

10. Now we may advert to the quantum of

compensation. Admittedly, the claimants have not produced

any evidence with regard to the income of the deceased.

Therefore, the notional income of the deceased is to be

assessed as per the guidelines issued by the Karnataka Legal

Services Authority. Since the accident is of the year 2013,

notional income comes to Rs.8,000/- per month. In view of

the law laid down by the Constitution Bench of the Supreme

Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs.

PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 25%

of the amount has to be added on account of future

prospects. Thus, the monthly income comes to Rs.10,000/-.

11. The tribunal has rightly considered the claimant

no.1 in MVC 4415/2013 and claimant No.1 in MVC

3027/2013 to be the wives of the deceased on the basis of

Ex.P10 Voter ID, Ex.P15 Ration card and Ex.PP7 marriage

Certificate. Admittedly, claimant No.2 Roopa in MVC

4415/2013 is married and not dependant on the income of

the deceased. Since, the number of dependants are 4,

therefore, 1/4th of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.7,500/-. Ex.P15 Ration card discloses that the

age of the deceased to be 48 years in the year 2013,

therefore the multiplier of '13' has to be adopted. Therefore,

the claimants are held entitled to (Rs.7,500x12x13) i.e.,

Rs.11,70,000/- on account of loss of dependency.

12. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

IN CIVIL APPEAL NO.2705/2020 DECIDED ON

30.06.2020 each of the claimant's are entitled to a sum of

Rs.40,000/- on account of loss of consortium and loss love

and affection. Thus, the claimants are held entitled to

Rs.2,00,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.14,00,000/-. Since the accident is

of the year 2013, the prevailing rate of interest for the year

2013 in respect of fixed deposits for one year in nationalized

banks being 8%, the aforesaid amounts of compensation

shall carry interest at the rate of 8% from the date of filing of

the petition till the realization of the amount of

compensation. To the aforesaid extent, the judgment passed

by the Claims Tribunal is modified. The amount on deposit, if

any, shall be transmitted to the Tribunal.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss