Karnataka High Court

The Divisional Controller vs Ayisha on 21 January, 2021

Author: Alok Aradhe Rangaswamy

                              1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JANUARY, 2021

                        PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.1367 OF 2016 (MV-D)
                          C/W
            M.F.A. NO.961 OF 2017 (MV-D)

IN MFA NO.1367/2016:

BETWEEN:

THE DIVISIONAL CONTROLLER
K S R T C.,
CHAMARAJANAGAR DIVISION,
CHAMARAJANAGAR
REPRESENTED BY ITS
CHIEF LAW OFFICER,
CENTRAL OFFICE,
K.H.ROAD,
SHANTHINAGAR ,
BENGALURU-560027.
                                           ...APPELLANT

(BY SRI. G. LAKSHMEESH RAO, ADVOCATE)

AND:

1.     AYISHA
       W/O LATE G. ABDULLA,
       AGED 47 YEARS,
                             2




2.   G.A. RASHEED
     S/O LATE G. ABDULLA,
     AGED 29 YEARS

3.   G.A. SIRAJUDDIN
     S/O LATE G. ABDULLA,
     AGED 26 YEARS

4.   SHABANA G.A.
     D/O LATE G. ABDULLA,
     AGED 24 YEARS

ALL ARE R/AT GOONADKA HOUSE,
SAMPAJE VILLAGE AND POST,
SULLIA TALUK, D.K.-574234.
                                        ...RESPONDENTS

(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE FOR
RESPONDENT NOs.1 TO 4)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN
MVC NO.1093/2013 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MEMBER, MACT-III, D.K.,
MANGALURU AWARDING A COMPENSATION OF RS.19,05,000/-
WITH INTEREST @6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.

IN MFA NO.961/2017:

BETWEEN:

1.   SMT. AYISHA
     AGED 47 YEARS,
     W/O. LATE G. ABDULLA

2.   G.A. RASHEED
     AGED 29 YEARS,
     S/O. LATE G. ABDULLA

3.   G.A. SIRAJUDDIN
     AGED 26 YEARS,
                             3




       S/O. LATE JAYA POOJARY,

4.     SHABANA G.A.
       AGED 24 YEARS,
       D/O. LATE JAYA POOJARY,

       ALL ARE RESIDENT OF GOONADKA HOUSE,
       SAMPAJE VILLAGE AND POST,
       SULLIA TALUK,
       D.K.-574 234.
                                          ...APPELLANTS

(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)

AND:

THE DIVISIONAL CONTROLLER
K.S.R.T.C.,
CHAMARAJANAGAR DIVISION,
CHAMARAJANAGAR-571313.
                                             ...RESPONDENT

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN
MVC NO.1093/2013 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MEMBER, MACT-III, D.K.,
MANGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND   SEEKING    ENHANCEMENT      OF
COMPENSATION.

    THESE APPEALS COMING ON FOR ORDERS THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:

                        JUDGMENT

Though these appeals are listed for orders, the

appeals are taken up for final disposal with the consent of

the learned counsel for the parties.

2. MFA No.1367/16 is filed by the owner/ internal

insurer of a bus bearing registration No.KA-10-F-0209

(henceforth referred to as "offending vehicle") challenging

the quantum of compensation awarded by the II Additional

District Judge & III Additional MACT., Mangaluru

(henceforth referred to as 'the Tribunal') by its Judgment

and award dated 30-10-2015 in MVC No.1093/2013.

3. MFA No.961/2017 is filed by the claimants in

MVC No.1093/2013 challenging the quantum of

compensation.

4. The appellant in MFA 1367/2016 is the insurer

while the appellants in 961/2017 are the claimants and

they shall henceforth be referred accordingly.

5. The claim petition discloses that the claimants

are the legal representatives of G.A.Ashraf, 25 years old

and a hotelier earning Rs.50,000-00 per month. It is

stated that on 04-07-2013, G.A.Ashraf was riding his

motor bike bearing registration No.KA-21-R-1291 from his

house in Sampaje towards Gandhinagar, Sullia, where he

had his hotel. When he reached a place called Hulimarada

Adi, the offending vehicle owned by the owner, driven rash

and negligently by its driver from the opposite direction,

dashed against the motor cycle ridden by G.A.Ashraf. As a

result, he fell on the road and sustained grievous injuries

on his head and stomach. He died on the way to

Government Hospital, Sullia. A complaint was lodged by an

eye witness against the driver of the offending vehicle in

Cr.No.172/2013. The claimants alleged that the deceased

was earning Rs.50,000-00 from his hotel and that they

were all dependant on the deceased. Hence, a petition was

filed under Section 166 of the Motor Vehicles Act, 1988

claiming compensation of a sum of Rs.25,00,000-00 from

the owner of the offending vehicle.

6. The claim petition was opposed by the owner

of the offending vehicle who contended that the accident

occurred due to the negligence on the part of the

deceased. It also denied the age, avocation, income of the

deceased and contended that the compensation claimed

was excessive. With these contentions, the claim petition

was set down for trial.

7. The claimant No.4 was examined as PW1 and

an eye witness was examined as PW2 and they marked

documents Exs.P1 to P17, while the owner of the offending

vehicle examined its driver as RW1, but did not mark any

document.

8. The Tribunal noticed from Exs.P1 to P7, which

were prepared by the police in the course of their

investigation into Cr.No.172/2013 and the consequent

charge sheet (Ex-P8) lodged against the driver of the

offending vehicle, Ex-P14, as well as the evidence of PW2 -

an eye witness to the accident and held that the accident

was due to the rash and negligent driving by the driver of

the offending vehicle. It found from Ex-P14 (driving licence

of the deceased) and held that the deceased was aged 25

years as on the date of the accident and that the claimants

were his dependants. It found from Exs-P10 and P-11 that

the claimant had a sum of Rs.62,364.21 lying in his

account and that the deceased was making frequent

pygmy deposits with Syndicate Bank and hence fixed the

notional income of the deceased at a sum of Rs.20,000/-

per month and deducted 50% towards the living expenses

of the deceased and awarded the following compensation.

             Heads under which                   Amount in
          Compensation awarded                    Rupees
   Loss of dependency                            16,80,000-00
   Loss of love and affection                     1,00,000-00
   Loss to estate                                 1,00,000-00
   Funeral & obsequies expenses           &         25,000-00
   transportation of dead body etc.,
                     Total                      19,05,000-00



       9.     The   Tribunal   directed   the    owner   of     the

offending vehicle to pay the compensation along with

interest at 6% per annum from the date of claim petition,

till realization.

10. Feeling aggrieved by the aforesaid Judgment

and Award, the owner of the offending vehicle has filed

MFA No.1367/2016 challenging the quantum of

compensation, while the claimants have also filed MFA

No.961/2017 for enhancement of compensation.

11. The sole contention of the owner of the

offending vehicle is that the Tribunal committed an error in

considering the notional income of the deceased at

Rs.20,000-00 per month, though the claimants had not

placed on record any material to indicate that the

deceased was running a hotel as alleged and that he was

earning any income or that he was earning Rs.20,000-00

per month. The learned counsel for the owner of the

offending vehicle contended that the only documents that

were placed on record was a bank pass book and pigmy

receipts for the months of June, 2012; October, 2012 and

February, 2013 which did not indicate the income of the

deceased. He contended that since the receipts were only

for the months of June 2012, October 2012 and February

2013, they could not be the basis for considering the

notional income of the deceased @ Rs.20,000-00 per

month. He contended that the claimants ought to have

summoned the Bank to establish the pigmy receipts.

12. Per contra, the learned counsel for the

claimants contended that the Tribunal failed to award

compensation towards loss of future prospects of the

deceased and failed to award adequate compensation

towards loss of filial consortium to the claimants. He also

claimed that the Courts had awarded interest @ 7% to 8%

as the Nationalized Banks were awarding interest @ 7% to

8% on fixed deposits during the year 2013. He also

contended that the Tribunal erred in applying multiplier of

'14' based on the age of the parent.

13. We have given our thoughtful consideration to

the arguments canvassed by the learned counsel. We have

perused the records of the Tribunal as well as its Judgment

and Award.

14. As rightly contended by the learned counsel for

the owner of the offending vehicle, the claimants had not

placed on record any material to indicate that the

deceased was a hotelier and that he had any source of

income. The Bank pass book and a few pigmy receipts

would not be sufficient evidence to establish the monthly

income of the deceased. A perusal of the bank pass book

shows that the deceased had a sum of Rs.62364.21 as on

04-07-2013, which were transferred from his pigmy

account PD 17490. The pass book was issued on

05-03-2013 and the claimants have, for reasons unknown,

not produced the pass books of the previous dates. It is

seen from Ex-P11 that the deceased contributed

Rs.2000-00 to his pigmy account in June 2012,

Rs.5200-00 during October 2012 and Rs.6000-00 during

February 2013. These documents certainly indicate that

the deceased had some income but definitely not a sum of

Rs.20,000-00 per month.

       15.     It        is     no        doubt         true    that   claims    for

compensation             has         to      be         determined      based    on

preponderance             of        probabilities        and    some     sympathy

towards the dependants and some guess work should be

resorted to, while determining the quantum of

compensation. At the same time, Courts should not be

blinded by sympathy and should not award fanciful

compensation. It is in order to ensure uniformity in award

of compensation that this Court has accepted the notional

income as fixed by the Karnataka State Legal Services

Authority, in cases where there is no proof of income.

16. In so far as the present case is concerned, the

accident occurred in June 2013 and the notional income is

fixed at Rs.8,000-00 per month. Having regard to the fact

that the deceased was saving between Rs.2000-00 to

Rs.6000-00, the average saving could be considered at a

sum of Rs.4000-00 per month. Thus, having regard to the

beneficent nature of Section 166 of the Motor Vehicle Act,

if this saving is added on to the notional income of the

deceased, the composite notional income could be

considered at a sum of Rs.12,000-00 per month. The

deceased was a bachelor and thus, 50% had to be

deducted towards his living expenses and the loss of filial

consortium is to be awarded @ Rs.40,000-00 per person in

view of the law declared by the Apex Court in Magma

General Insurance Co. Ltd. vs. Nanu Ram Alias

Chuhru Ram reported in 2018 (18) SCC 130 and

United India Insurance Co. Ltd. vs Satinder Kaur @

Satwinder Kaur and others reported in 2020 SCC

OnLine SC 410. The Tribunal also erred in considering the

age of the parent of the deceased for applying the

multiplier in view of the decision in Chikkamma and

Another Vs. Parvathamma and Another reported in

AIR 2017 SC 1732.

17. The deceased was 25 years old and it is quite

but natural that his income would have grown over the

years and the Tribunal erred in not factoring the loss of

future prospects @ 40%. Further, as rightly contended by

the claimants, the Courts have consistently awarded

interest @ 7% per annum in respect of accidents that

occurred in the year 2013 and it is appropriate that the

rate of interest awarded by the Tribunal is enhanced to 7%

per annum.

18. Hence the compensation to which the

claimants are entitled is re-determined as follows:

          Heads under which                      Amount in
        Compensation awarded                      Rupees
 Loss of dependency                              17,13,600-00
 (Rs.12,000-00 + 40% of 12,000-00 x
 1/2x 12x 17)
 Loss of filial consortium to each of                1,60,000-00
 the claimants (Rs.40,000-00 x 4)
 Funeral expenses                                   15,000-00
 Loss of estate                                     15,000-00
                  Total                         19,03,600-00

19. Consequently, the appeal filed by the claimants

in MFA No.961/2017 is rejected and the appeal filed by

the owner of the offending vehicle in MFA No.1367/2016 is

allowed in part and the compensation awarded by the

Tribunal in MVC No.1093/2013 is modified and the

compensation of Rs.19,05,000-00 awarded by the Tribunal

is reduced to a sum of Rs.19,03,600-00, which shall be

paid by the owner of the offending vehicle to the claimants

along with interest @ 7% per annum from the date of the

claim petition, till the date of realization.

20. The Owner of the offending vehicle shall

deposit the compensation, if not already deposited, within