Karnataka High Court
The Divisional Controller vs H J Thejashree 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.610 OF 2013
C/W
M.F.A. NO.5374 OF 2013 (MV-D)
M.F.A. NO.610 OF 2013
BETWEEN:
THE DIVISIONAL CONTROLLER
K.S.R.T.C.
MYSORE RURAL DIVISION
NEAR MYSORE LACK & PAINTS
MYSORE 570001
NOW BY THE MANAGING DIRECTOR
K.S.R.T.C., CENTRAL OFFICES
K.H. ROAD, BANGALORE 560027
REPRESENTED BY ITS CHIEF LAW OFFICER.
... APPELLANT
(BY MR. F.S. DABALI, ADV.,)
AND:
1. H.J. THEJASHREE
W/O PHILOMINA RAJ
AGED ABOUT 28 YEARS.
2. PUNITHA KUMAR
AGED ABOUT 5 YEARS
S/O LATE S. PURUSHOTHAM.
2
SINCE MINOR REPRESENTED BY
NATURAL MOTHER AND
M/G RESPONDENT NO.1
SMT. H.J. THEJASHREE.
3. SMT. NAGAMMA
AGED ABOUT 51 YEARS
W/O M. SHIVA.
RESPONDENT NO.1 TO 3 ARE
RESIDING AT RAMASHETTY LAYOUT
OOTY-MYSORE ROAD
AT: NANJANGUD TOWN
MYSORE DISTRICT-571301.
4. K.B. REVEGOWDA
AGED ABOUT 55 YEARS
S/O BOMMEGOWDA @ SOMEGOWDA
(VOKALIGAGOWDA BY CASTE)
BADGE NO.7342, KSRTC DRIVER
GUNDLUPET DEPOT, GUNDLUPET TOWN
CHAMARAJANAGAR DISTRICT-571111.
5. THE MANAGER
M/S. BAJAJ ALLIANZ TLC INSURANCE
(INDIA) PVT. LTD
SRI AYYAPPA ARCADE
4A, PAMPA EXTENSION
KEMPAPURA, HEBBAL
NEAR PRESIDENCY COLLEGE
(OPP) STATE BANK OF MYSORE
BANGALORE 560024.
6. CHANDRASHEKAR K
S/O N. KRISHNA MURTHY
AGED ABOUT 53 YEARS
NO.78, OLD POLICE STATION ROAD
METAGALLI, MYSORE-570001
(OWNER OF MARUTHI OMNI CAR
NO. KA-05-B-255).
7. THE MANAGER
M/S. THE ORIENTAL INSURANCE
COMPANY LIMITED
3
NO.4/12, NAVEEN COMPLEX
1ST FLOOR, HEBBAL MAIN ROAD
METAGALLI, MYSORE-570001
POLICY NO.422805/31/2010/544
VALID FROM 29-05-2009 TO 28-05-2010.
... RESPONDENTS
(BY MR. SHARATH S. GOWDA, ADV., FOR R1-R3
MR. H.N. KESHAVA PRASHANTH, ADV., FOR R5
R2 MINOR REPTD. BY R1
MRS. HARINI SHIVANAND, ADV., FOR R7
V/O DTD: 18-03-2013 NOTICE TO R4 IS D/W
V/O DTD:24-2-2020 SERVICE OF NOTICE TO R6
IS HELD SUFFICIENT)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.08.2011 PASSED
IN MVC NO.46/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, NANJANGUD, AWARDING A COMPENSATION @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
M.F.A. NO.5374 OF 2013
BETWEEN:
1. H.J. THEJASREE
W/O LATE S. PURUSHOTHAMA
AGED ABOUT 28 YEARS.
2. PUNEETH KUMAR
S/O LATE S. PURUSHOTHAMA
AGED ABOUT 5 YEARS
MINOR REP. BY R1 MOTHER.
3. NAGAMMA
W/O LATE M. SHIVA
AGED ABOUT 51 YEARS.
ALL ARE R/AT RAMSHETTY BADAVANE
OOTY-MYSORE ROAD
NANJANGUD TOWN
MYSORE DISTRICT-571301.
... APPELLANTS
(BY MR. SHARATH S. GOWDA, ADV.,)
4
AND:
1. K.B. REVEGOWDA
S/O SOMEGOWDA
BADGE NO.7342, KSRTC DRIVER
GUNDLUPET DEPOT
GUNDLUPET TOWN
CHAMARAJANAGAR DISTRICT-571111.
2. DIVISIONAL CONTROLLER, KSRTC
MYSORE RURAL DIVISION
NEAR MYSORE LAC & PAINTS
MYSORE -570001.
3. M/S BAJAJ ALLIANZ
T.L.C. INSURANCE (INDIA) PVT LTD,
SRI. AIYAPPA ARCADE
4-A, PADMA EXTENSION
KEMPAPURA, HEBBALA
NEAR PRESIDENCY COLLEGE
BANGALORE-24.
... RESPONDENTS
(BY MR. F.S. DABALI, ADV., FOR R2
R1 SERVED
V/O DTD: 16-02-2016 NOTICE TO R3 H/S)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 5.8.2011 PASSED
IN MVC NO.46/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
5
JUDGMENT
M.F.A.No.5374/2013 has been filed by the claimants
seeking enhancement of the amount of compensation,
whereas, M.F.A.No.610/2013 has 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 05.08.2011 passed by the
Motor Accident Claims Tribunal. Since, both the 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 23.10.2009, the deceased S Purushottam
was proceeding in a Omni car bearing Registration No.KA-05-
B-255. When he reached near Chikkahundi Village Gate, a
KSRTC bus bearing registration No. KA-09-F-4100 which was
being driven by its driver in a rash and negligent manner,
came from the opposite direction and dashed against the
vehicle in which the deceased was proceeding. As a result of
the aforesaid accident, the deceased sustained grievous
injuries and succumbed to the same.
3. The claimants thereupon filed a petition under
Section 166 of the Act claiming compensation on the ground
that the deceased was aged about 28 years at the time of
accident and was running a business and was earning a sum
of Rs.15,000/- per month. It was further pleaded that
accident took place solely on account of rash and negligent
driving of the KSRTC bus by its driver. The claimants claimed
compensation to the tune of Rs.29,28,000/- along with
interest.
4. The KSRTC filed written statement, in which the
mode and manner of the accident was denied. It was further
pleaded that the accident occurred wholly on account of the
negligence of the driver of the Omni car. 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 examined herself as PW-1,
Nagamma (PW2) and got exhibited documents namely Ex.P1
to Ex.P16. The respondents neither adduced any oral nor any
documentary evidence. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent driving of the
offending 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.8,00,000/- along with interest at the rate of 6% per
annum. Being aggrieved, these appeals have been filed.
6. Learned counsel for the KSRTC submitted that the
issue with regard to the negligence of the driver of the
KSRTC bus has already been adjudicated by a bench of this
court by a judgment dated 11.7.2013 passed in M.F.A
No.4077/2011 and connected matters in which, inter alia, it
has been held that the accident occurred on account of
negligence of both the drivers of the KSRTC bus as well as
the Omni car to the extent of 60% and 40% respectively and
the same has attained finality and therefore, the finding of
the Tribunal with regard to negligence of the driver of the
KSRTC bus in M.F.A No. 610/2013 is to be modified
accordingly. Learned counsel for Respondent No.5 in M.F.A
No. 610/2013 submitted that the Tribunal has rightly not
fastened liability to pay the compensation on Respondent
No.5.
7. On the other hand, learned counsel for the claimants
submitted that the Tribunal erred in assessing the income of
the deceased at Rs.6,000/- per month when Ex.P7 to Ex.P9
Income Tax Returns disclose that the deceased was earning
Rs.15,000/- per month. It is further submitted that the
Tribunal has erred in not making an addition to the tune of
40% to the income of the deceased on account of future
prospects in view of the law laid down by the Supreme Court
in 'NATIONAL INSURANCE COMPANY LIMITED Vs.
PRANAY SETHI AND OTHERS' AIR 2017 SC 5157. It is
further submitted 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.
The issue with regard to the negligence of the driver of the
KSRTC bus has already been adjudicated by a co-ordinate
bench of this court by its judgement dated 11.07.2013
passed in M.F.A No.4077/2011 and connected matters in
which, inter alia, it has been held that the accident occurred
on account of negligence of both the drivers of the KSRTC
bus as well as the Omni car to the extent of 60% and 40%
respectively and the same has attained finality. Therefore,
the finding of the Tribunal with regard to the negligence of
the driver of the KSRTC bus as well as the Omni car in MVC
No.46/2010 is quashed and it is held that the accident
occurred on account of negligence of both the drivers of the
KSRTC bus as well as the Omni car to the extent of 60% and
40% respectively.
9. Now we may advert to the quantum of
compensation. The claimants have produced Ex.P8 which the
Income Tax return for the Assessment Year 2007-2008 which
discloses that the deceased had paid income tax of Rs.225/-
in respect of the taxable income of Rs.1,02,200/- was
earning. Therefore, the income of the deceased is assessed
at Rs.1,01,975/- per annum after deducting Rs.225 towards
income tax.
10. 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, 40% of the amount has to be added on
account of future prospects as the deceased was self
employed. Thus, the annual income comes to Rs.1,42,765/-.
Since, the number of dependents is 3, therefore, 1/3rd of the
amount has to be deducted towards personal expenses and
therefore, the annual dependency comes to Rs.95,177/-.
Taking into account the age of the deceased which was 31
years at the time of accident as evident from Ex.P7 Income
Tax Acknowledgement, the multiplier of '16' has to be
adopted. Therefore, the claimants are held entitled to
(Rs.95,177 x16) i.e., Rs.15,22,832/- on account of loss of
dependency.
11. 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.1,20,000/-. 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.16,72,832/- and the KSRTC is
directed to pay Rs.10,03,700/- out of the aforesaid amount
of compensation. Since the accident is of the year 2009, the
prevailing rate of interest for the year 2009 in respect of
fixed deposits for one year in nationalized banks being 6%,
the aforesaid amounts of compensation shall carry interest at
the rate of 6% from the date of filing of the petition till the
realization of the amount of compensation. However, it is
made clear that the claimants are not entitled to interest for
a period of 596 days on account of delay caused in filing the
instant appeal. To the aforesaid extent, the judgment passed
by the Claims Tribunal is modified. The amount in deposit, if
any, shall be transmitted to the Tribunal for disbursement to
the claimants.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
ss
