Karnataka High Court
The Manager vs Saraswathamma on 8 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2880 OF 2014(MV)
C/W
MFA No.2881 OF 2014(MV)
IN MFA 2880/2014
BETWEEN:
The Manager,
K.S.R.T.C.
Chikkaballapur Division,
Chikkaballapura-562 101.
Service Centre at :
The Manager,
K.S.R.T.C.,
Tumkur Town-572101.
Now by the
Managing Director
K.S.R.T.C., Central Office,
K.H.Road, Bangalore-560 027,
Represented by its
Chief Law Officer.
... Appellant
(By Sri.F.S.Dabali., Advocate)
AND:
1. Saraswathamma,
Aged about 48 years
Wife of Rudrappa.
2
2. Bhavya,
D/o Rudrappa,
Aged about 27 years.
3. Mamatha,
D/o Rudrappa,
Aged about 25 years.
4. Divya,
D/o Rurdrappa,
Aged about 24 years.
5. Pallavi,
D/o Rudrappa,
Aged about 21 years.
6. Lokesh,
S/o Rudrappa,
Aged about 14 years.
Sine minor represented by
Mother & N/G respondent No.1
Saraswathamma.
R1 to R6 are residents of
Chikke Gowda Building,
Avalahally, Singanayakana halli post,
Yelahanka Hobli,
Bangalore North Taluk-560 064.
Now residing at
Bassaveshwara Nilaya,
Srinivasa Nursing Home Road,
Ashoknagar,
Tumkur Town-572 101.
7. Anitha T.R.
D/o Late. B.K.Rudrappa
Wife of Prakash
3
Deleted v/o dated:13.02.2017.
8. Pushpalatha,
D/o Late. B.K.Rudrappa,
Wife of Gangadar,
Aged about 30 years,
R/at Hosahuddya
Chikkabllapur Taluk & District-562 101.
... Respondents
(By Sri.K.R.Ramesh, Advocate for R1 to R6:
R7 is deleted v/o dated: 13.02.2017
R8 served)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 18.12.2013
passed in MVC No. 590/2008 on the file of the Additional
Senior Civil Judge, MACT-11, Tumkur, awarding a
compensation of Rs.12,28,692/- with interest @ 6% p.a
from the date of petition till realization.
IN MFA.2881/2014
BETWEEN
The Managing Director,
KSRTC/BMTC Head Office,
Shanthinagar, K.H.Road,
Bangalore-560 027.
Represented by its
Chief Law Officer.
...Appellant
(By Sri. F.S.Dabali, Adv.)
AND
1. Vijaya @ Vijayamma,
W/o B.K.Rudrappa,
Aged about 47 years.
4
2. Jayashree T.R.,
D/o B.K.Rudrappa,
Aged about 27 years.
3. Parashivamurthy T.R.,
S/o B.K.Rudrappa,
Aged about 24 years.
All the respondents are
Residing at No.16-3, Puttenahalli,
Yalahanka, Bangalore-560 064.
...Respondents
(v/o dated: 03.10.2017 service of notice
to R1 to R3 is deemed to be complete)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:18.12.2013 passed
in MVC No.8267/2009 on the file of the Additional Senior
Civil Judge, MACT-II Tumkur, awarding a compensation of
Rs.12,28,692/- with interest @ 6% p.a. from the date of
petition till realization.
These MFAs, coming on for hearing, this day, this
Court, delivered the following:
JUDGMENT
Both the appeals are filed by the Karnataka
State Road Transport Corporation (for short,
'Corporation) under Section 173(1) of the Motor
Vehicles Act challenging the judgment and award
dated 18.12.2013 passed by the MACT, Tumkur in
MVC Nos.590/2008 and 8267/2009, respectively.
Since the challenge is to the same judgment, both the
appeals are clubbed together, heard and common
judgment is being passed.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 01.02.2008 at about 8.00
p.m. the deceased Rudrappa was proceeding on his
moped near Nagenahalli gate, Bengaluru -
Doddaballapura road. At that time, the BMTC bus
bearing registration No.KA-40/F-92 came at a high
speed and in a rash and negligent manner, dashed
against the moped. As a result of the aforesaid
accident, the deceased sustained grievous injuries and
died at the spot.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 53 years at the time of accident, was
working as a conductor and was earning Rs.11,955/-
per month. The claimants claimed compensation to
the tune of Rs.9,55,000/- along with interest.
4. On service of summons, the respondent
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. It was pleaded that the accident occurred due
to the rash and negligent riding of the deceased
himself. Hence, he sought for dismissal of the
petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 as PW-1
and got exhibited 12 documents namely Ex.P1 to
Ex.P12. On behalf of respondents, driver of the bus
was examined as RW-1 but no documents were
marked. 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 vehicle by its driver, as a result of which,
the deceased sustained injuries and succumbed to the
injuries. The Tribunal further held that the claimants
are entitled to a compensation of Rs.6,77,770/- along
with interest at the rate of 6% p.a. and directed the
Corporation to deposit the compensation amount
along with interest.
6. Being aggrieved, the claimants in MVC
No.590/2008 stated to be pending before the MACT,
Tumkur, claiming compensation towards the death of
very same person have filed MFA No.8655/2010 and
the Corporation, questioning the finding on negligence
and quantum and also dispute as regards the legal
heirs of deceased Rudrappa filed MFA No.988/2011.
7. This Court, by a common judgment dated
11.02.2011, allowed both the appeals, set aide the
judgment and award passed in MFA No.8267/2009
and remanded the matter back to the Tribunal for
considering MVC No.590/2008 along with MVC
No.8267/2009. After remand, the Tribunal by a
common judgment and award dated 18.12.2013
allowed the petitions. The Tribunal further held that
the claimants are entitled to a compensation of
Rs.12,28,692/- along with interest at the rate of 6%
p.a. and directed the Corporation to deposit the
compensation amount along with interest. Being
aggrieved the Corporation has filed these appeals.
8. The learned counsel for the Corporation has
raised the following contentions:
Firstly, the accident occurred due to the rash and
negligent driving of the deceased who was driving the
moped, but the Tribunal has wrongly held that the
driver of the KSRTC bus was negligent in causing the
accident.
Secondly, the Tribunal has wrongly given a
finding that the bus was travelling from South to
North, in fact the bus was coming from North to
South from Doddaballapura to Bengaluru. It is very
clear from Ex.P4 - spot sketch that the bus was
proceeding right side of the road, the rider of the
moped was coming extreme right side and dashed
against the bus. Therefore, there is a negligence on
the part of the rider of the moped. The Tribunal has
wrongly held that the driver of the bus was negligent
in causing the accident.
Thirdly, the Tribunal while assessing the monthly
income of the deceased has not deducted professional
tax and income tax.
Fourthly, since the deceased was a Government
employee and aged about 55 years, split multiplier
has to be adopted. In support of his contentions, he
relied on the law laid down by the Hon'ble Apex Court
in the case of 'PUTTAMMA AND ORS. VS.
K.L.NARAYANA REDDY AND ORS.' (AIR 2014 SC
706).
Fifthly, the compensation awarded by the
Tribunal on the other heads is n the higher side.
Hence, he sought for allowing the appeals.
9. Per contra, learned counsel appearing for the
claimants has raised the following contentions:
Firstly, the accident occurred due to the rash and
negligent driving of the driver of the bus. The claimant
has examined the eyewitness as PW-2, who
specifically stated that the accident occurred due to
the rash and negligent driving of the driver of the
KSRTC bus. Immediately after the complaint, police
have filed FIR against the driver of the bus and charge
sheet has been filed against the driver of the bus.
After the accident driver has not filed any complaint
against the rider of the moped and he has also not
challenged the charge sheet. Therefore, it is very
clear that the accident occurred due to the rash and
negligent driving of the driver of the bus.
Secondly, the Tribunal after appreciating the oral
and documentary evidence has rightly held that the
accident occurred due to the rash and negligent
driving of the driver of the bus.
Thirdly, the Tribunal after deducting income tax
and professional tax rightly assessed the monthly
income of the deceased as Rs.12,108/- and
considering the age of the deceased as 55 years in
view of the law laid down by the Hon'ble Apex court in
the caser of NATIONAL INSURANCE CO. LTD. -v-
PRANAY SETHI AND OTHERS [AIR 2017 SC
5157], considered addition of 15% towards future
prospects since the deceased was a Government
employee.
Fourthly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in
2018 ACJ 2782, each of the claimants are entitled
for compensation under the head of 'loss of love and
affection and consortium'.
Fifthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he prays for dismissal of the appeals.
10. Heard the learned counsel for the parties
and perused the judgment and award and the original
records.
11. The case of the claimants is that the
deceased succumbed to the injuries due to the rash
and negligent driving of the driver of the bus. On
01.02.2008 at 8.00 p.m. the deceased was proceeding
on his moped from Puttanahalli to Avalahalli, the
KSRTC bus came from the opposite direction at a high
speed and dashed against the moped. Due to the
accident, the deceased succumbed to the injuries. To
prove their case, claimants have examined themselves
and also examined an eyewitness as PW-2 and
produced 15 documents. To disprove the same,
respondents have examined the driver of the bus as
RW-1. Immediately after the accident police have
registered FIR against the driver of the bus. Even
though in the criminal case driver has been acquitted,
evidence of the claimants ought to be examined by
the Tribunal on the touchstone of preponderance of
probability.
12. I have gone through the records. From
Ex.P4 - spot sketch it is very clear that the deceased
wa proceeding from South to North and the bus was
proceeding from North to South, i.e, from
Doddaballapura to Bengaluru. The width of the road is
28 ft, the accident spot from the west is 18 ft. It is
clear from the mahazar and the sketch that the rider
of the moped was proceeding on the extreme right
side of the road and the driver of the bus was coming
from the opposite direction at a high speed, he has
not made any effort to stop the bus and there is no
break mark on the road which may be made out from
the sketch or mahazar. Therefore, it is very clear that
the driver of the bus was also negligent in driving the
bus and he has not made any effort to stop the bus.
Since it is a heavy vehicle he could have made effort
to stop the bus and avoided the accident. Taking into
consideration the evidence of the parties and the
materials on record, I am of the opinion that both the
rider of the moped and the driver of the bus have
contributed to the occurrence of the accident at 20%
and 80%, respectively.
Re.quantum:
13. Under Order 41 Rule 33 of CPC this Court
has the power to reassess the compensation in the
absence of any appeal by the claimant to grant just
and reasonable compensation.
The claimants have produced Ex.P7 - pay slip of
the deceased. As per the pay slip, the gross monthly
income of the deceased is shown as Rs.12,108/-, out
of which he was paying Rs.250/- towards income tax
and Rs.200/- towards professional tax and the same
has to be deducted. After deducting the same,
monthly income has to be taken at Rs.11,658/-. To
the aforesaid amount, 15% has to be added on
account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.13,407/-, out of which, since
there are more than 6 dependents, we deem it
appropriate to deduct 1/5th towards personal expenses
and therefore, the monthly dependency comes to
Rs.10,726/-. Considering the age of the deceased, as
per the law laid down by the Hon'ble Apex Court in the
case of PUTTAMMA (supra), the split multiplier has
to be adopted and the applicable multiplier is '5' for
five years and '6' for the remaining period.
Accordingly, the loss of dependency for the pre-
retirement period = (a) Rs.6,43,560/- (Rs.10,726 x
12 x 5). For the post-retirement period =
Rs.3,86,136/- (Rs.5,363 x 12 x 6), the claimants are
entitled to Rs.10,30,296/- (Rs.6,43,560 +
Rs.3,86,136) on account of 'loss of dependency'.
In view of the law laid down by the Hon'ble
Supreme Court in MAGMA GENERAL INSURANCE
(supra), claimant No.1 in MVC No.590/2008, wife of
the deceased is entitled for compensation of
Rs.40,000/- under the head of 'loss of spousal
consortium', claimant Nos.2 to 6 in MVC No.590/2008
and claimant Nos. 2 and 3 in MVC No.8267/2009,
children are entitled for compensation of Rs.40,000/-
each under the head of 'loss of parental consortium'.
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
14. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 10,30,296
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 2,80,000
consortium
Total 13,80,296
The claimants are entitled to a total compensation
of Rs.11,04,237/- (being 80% of Rs.13,80,296/-). The
Corporation is directed to deposit the total compensation
amount along with interest at the rate of 6% p.a. from
the date of petition till the date of payment, within a
period of four weeks from the date of receipt of copy of
this judgment.
The apportionment shall be made as per the award
of the Tribunal.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
The amounts in deposit in both the appeals are
ordered to be transmitted to the Tribunal, forthwith.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE
Cm/-
