Smt Rohini B vs Ksrtc
2021 Latest Caselaw 668 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2021

                        PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                          AND

      THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.7615 OF 2017 (MV-D)
                          C/W
            M.F.A. NO.2102 OF 2017 (MV-D)

IN MFA NO.7615/2017:

BETWEEN:

1.     SMT ROHINI B
       W/O LATE DHARNAPPA @
       N. DHARANAPPA GOWDA
       AGED 38 YEARS

2.     BABY SHREEYA D R
       D/O LATE DHARNAPPA @
       N. DHARANAPPA GOWDA
       AGED 9 YEARS

3.     SMT. SHANKAMMA
       W/O LATE SIDDAPPA GOWDA
       AGED 67 YEARS

       APPELLANT NO.2 IS A MINOR
       REPRESENTED BY HER NATURAL GUARDIAN
       MOTHER THE APPELLANT NO.1 HEREIN

       ALL ARE RESIDING AT DOOR NO.7/235
       NAITHOTTU HOUSE,
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       VITTLA KASABA POST AND VILLAGE,
       BANTWAL TALUK, D.K.,
       PRESENTLY RESIDING AT
       GREEN AOUS LAYOUT,
       BAMBAIL, PRABHA, MANGALURU.
                                   ...APPELLANTS

(BY SRI. GURUPRASAD B.R., ADVOCATE)

AND:

KSRTC
BEJAI, MANGALURU-575001.
REPRESENTED BY ITS
MANAGING DIRECTOR
                                     ...RESPONDENT

(BY SRI. D.VIJAYA KUMAR, ADVOCATE)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN
MVC NO.1040/2015 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER MACT,
DAKSHINA KANNADA, MANGALURU PARTLY ALLOWING THE
CLAIM   PETITION   FOR  COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

IN MFA NO.2102/2017:

BETWEEN:

THE MANAGING DIRECTOR
K.S.R.T.C.
BEJAI,
MANGALORE-575004
REP. BY ITS MANAGING DIRECTOR,
K.S.R.T.C., K.H. ROAD,
SHANTHINAGAR,
BANGALORE-560027.
                           ...APPELLANT

(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
                               3



AND:

1.     SMT. ROHINI .B.
       W/O LATE DHARNAPPA @
       N. DHARNAPPA GOWDA,
       AGED ABOUT 38 YEARS

2.     BABY SHREEYA D.R.
       D/O LATE DHARNAPPA @
       N. DHARNAPPA GOWDA,
       AGED ABOUT 9 YEARS

3.     SMT. SHANKAMMA
       W/O LATE SIDDAPPA GOWDA
       AGED ABOUT 67 YEARS

ALL ARE R/AT DOOR NO.7/235,
NAITHOTTU HOUSE,
VITTLA KASABA POST & VILLAGE,
BANTWAL TALUK, D.K. - 574243.

PRESENTLY R/AT
GREE AOUS LAYOUT,
BAMBAIL, PRABHA,
MANGALORE-574243.

SINCE RESPONDENT NO.2 IS MINOR
REP. BY HER MOTHER AND NATURAL GUARDIAN
1ST RESPONDENT SMT. ROHINI.B
                                       ...RESPONDENTS

(RESPONDENT NO.2 IS MINOR - REPRESENTED BY
RESPONDENT NO.1;
SRI. GURUPRASAD B.R., ADVOCATE FOR RESPONDENT NOS.1
TO 3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN
MVC NO.1040/2015 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER MACT,
DAKSHINA KANNADA, MANGALURU AWARDING COMPENSATION
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OF RS.27,30,120/- WITH INTEREST AT 6% PER ANNUM FROM
THE DATE OF PETITION TILL REALIZATION.

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



                        JUDGMENT

M.F.A. No.7615/2017 is posted for admission along

with MFA No.2102/2017, which has already been admitted.

M.F.A. No.7615/2017 is taken up for final disposal with the

consent of the learned counsel for the parties.

2. M.F.A No.7615/2017 is filed under section

173(1) of the Motor vehicles Act, 1988 by the claimants

seeking enhancement of the compensation awarded by the

IVth Additional District Judge and Member, Motor Accident

Claims Tribunal, Dakshina Kannada, Mangaluru in MVC

No.1040/2015.

3. MFA No.2102/2017 is filed by the owner-

internal insurer of the offending vehicle challenging the

quantum of compensation awarded by the Tribunal in MVC

No.1040/2015.

4. Appellants in MFA No.7615/2017, who are

respondent Nos.1 to 3 in MFA No.2102/2017, will

henceforth be referred to as 'claimants'. Respondent in

MFA No.7615/2017, who is the appellant in MFA

No.2102/2017, will henceforth be referred to as the

'insurer'.

5. The claim petition discloses that the claimants

are the legal representatives of deceased Mr. Dharnappa @

N. Dharnappa Gowda was employed as a conductor in the

bus bearing registration No.KA-19-F-2131 (henceforth

referred to as 'the offending vehicle') belonging to the

respondent - owner and internal insurer. At about 7.30

a.m., the bus was moving from Panaje to Puttur and when

it reached Irde village, Puttur Taluk, the driver of the bus

drove it in a rash and negligent manner as a result of

which the said Dharnappa was thrown out of the bus on

the road and he sustained severe injuries. He was shifted

to Chethana Hospital, where he was administered first aid

and thereafter, shifted to Thejaswini hospital, Mangalore,

where he succumbed to the injures on the same day. The

claimants contended that they had spent a sum of

Rs.2,00,000/- for the medical expenses and that the

deceased was drawing a monthly salary of Rs.21,675/-.

They claimed that they were dependent on the deceased

and thus filed a petition under section 166 of the Motor

Vehicles Act, 1988 (hereinafter referred to as the 'Act of

1988') claiming compensation of a sum of Rs.40,00,000/-

from the respondent.

6. The respondent contested the claim petition

and contended that the death was due to the negligence

on the part of the deceased. It claimed that it had paid an

interim compensation of a sum of Rs.6,25,880/- to the

legal representatives of the deceased as prescribed under

the Workmen's Compensation Act, 1923 (for short the

'W.C. Act').

7. Based on these rival contentions, the claim

petition was set down for trial. The claimant No.1 was

examined as PW.1 and an eye witness was examined as

PW.2 and they marked documents as Exs.P1 to P14. The

respondent did not lead evidence and did not mark any

document.

8. The Tribunal held that the driver of the

offending vehicle was negligent and was responsible for

the accident. This finding of the Tribunal was based on the

complaint lodged in terms of Ex.P1 and the charge sheet

filed in Crime No.121/2015 against the driver of the

offending vehicle. The driver of the offending vehicle was

not examined by the respondent and therefore, the

Tribunal was forced to rely upon the documents prepared

by the police in the course of their investigation to hold

that the driver of the offending vehicle was negligent.

9. In so far as the claim for compensation is

concerned, the Tribunal accepted the gross salary of the

deceased at a sum of Rs.21,675/- and factored 30% of his

salary towards the loss of future prospects and determined

compensation to which claimants were entitled to as

under:

     Heads of Compensation                    Amount
                                            (in Rupees)
 A   Funeral expenses                             25,000/-
 B   Loss of dependency                        29,31,000/-
 C   Loss of love and affection                 2,00,000/-
 D   Loss of consortium                         1,00,000/-
 E   Loss of estate                             1,00,000/-
             TOTAL                         Rs.33,56,000/-

The Tribunal after deducting the amount of Rs.6,25,880/-

deposited by the respondent - insurer before the Senior

Civil Judge, Puttur under the W.C. Act, held that the

claimants were entitled to a compensation of

Rs.27,30,120/- from the respondent along with interest at

the rate of 6% per annum from the date of the claim

petition till the date of realization.

10. Feeling aggrieved by the liability fastened on it

to pay the compensation, the respondent has filed MFA

No.2102/2017 while the claimants have filed MFA

No.7615/2017 for enhancement of compensation.

11. The respondent claimed that the claimants

having received compensation of Rs.6,25,880/- from the

respondent under the W.C. Act, were barred from making

any claim under section 166 of the Act of 1988. The

learned counsel invited the attention of the Court to

Section 167 of the Act of 1988. He also contended that if

an employee of an undertaking dies in an accident during

the course of an employment and even if the petition is

under Section 166 of the Act of 1988, they are entitled to

compensation in accordance to the formula prescribed

under the W.C. Act. He also contended that the deceased

was 49 years 2 months old at the time of the accident and

therefore, the Tribunal was not justified in factoring 30%

of his income towards loss of future prospects. He also

contended that the gross income of the deceased

comprised of a sum of Rs.304/- towards night halt,

Rs.571/- towards unpaid dearness allowance and

Rs.2,154/- towards overtime and Rs.35/- towards washing

allowance. The learned counsel therefore contended that

these amounts were not to be treated as a regular income

of the deceased. According to the learned counsel, the

income of the deceased comprised of Basic pay, dearness

allowance and house rent allowance aggregating to a sum

of Rs.19,092/-. Thus he contended that the Tribunal ought

to have considered the income of Rs.19,092/-. Further, he

claimed that the Tribunal committed an error in awarding

Rs.2,00,000/- towards loss of love and affection and a sum

of Rs.1,00,000/- towards loss of consortium in view of the

law laid down by the Supreme Court of India in the case of

of MAGMA GENERAL INSURANCE CO. LTD VS. NANU

RAM ALIAS CHUHRU RAM (2018 (18) SCC 130) and

UNITED INDIA INSURANCE CO. LTD. VS SATINDER

KAUR @ SATWINDER KAUR AND OTHERS (2020 SCC

OnLine SC 410).

12. The claimants on the contrary contended that

the Tribunal committed an error in awarding only

Rs.25,000/- towards funeral expenses. They also claimed

that Rs.2,00,000/- granted towards loss of love and

affection and Rs.1,00,000/- granted towards loss of

consortium was not adequate.

13. We have given our anxious consideration to

the arguments canvassed by the learned counsel for the

parties.

14. Since the driver of the offending vehicle was

not examined by the respondent, the only documents that

could be considered for the purpose of determination of

negligence are those documents which are prepared by the

police in the course of their official duties and which have a

presumptive value. Ex.P7 which is the sketch of the scene

of the accident indicates that the road at the place of the

accident curved and since there was no other vehicle

involved, the irresistible conclusion would be that the

driver of the offending vehicle drove it rash and negligently

as a result of which the deceased was thrown out of the

vehicle. Therefore, there cannot be any exception to the

finding recorded by the Tribunal that the driver of the

offending vehicle was negligent.

15. In so far as the contention that the claimants

could not pursue a claim under the Act of 1988, after

receiving compensation from the respondent under W.C.

Act, Section 167 of the Act of 1988 provides that a claim

could be made either under the Act of 1988 or W.C. Act,

whichever is beneficial. Consequently, the contention of

the respondent that the claim petition is not maintainable

is liable to be rejected. In so far as the claim of the

respondent that the Tribunal must have disallowed the

professional tax of Rs.200/-, night halt allowance of

Rs.304/-, washing allowance of Rs.35/- and overtime

allowance of Rs.1,143/- while considering the income of

the deceased to compute the compensation under the

head 'loss of dependency', it is relevant to note that these

amounts have to be necessarily taken into consideration

for setting off the living expenses of the deceased and thus

the contention of the respondent on this count fails.

16. In so far as the contention of the respondent

that the Tribunal committed an error in awarding

Rs.2,00,000/- toward loss of love and affection and

Rs.1,00,000/- towards loss of consortium, the Apex court

in cases of Magma General Insurance Co. Ltd. (supra)

and Satinder Kaur (supra) has held that the loss of

consortium both spousal and filial could be awarded at a

sum of Rs.40,000/- each. Thus to this limited extent, the

impugned judgment and award passed by the Tribunal has

to be modified.

17. In so far as the claim of claimants for

enhancement of compensation is concerned, Courts of law

cannot compensate the actual loss of a loved one in a

family. The attempt of the Court is only to provide succour

to the legal representatives of the deceased so as to tide

over the immediate crisis due to the loss of an earning

member. While the Courts are sympathetic towards such

legal representatives, grant of fanciful compensation is not

provided. It is in order to uniformly apply the law that the

Courts have evolved from time to time that would result in

grant of adequate compensation.

18. In so far as the claimants are concerned, the

Tribunal has considered the income of the deceased in

accordance with the pay slip (Ex.P10) of the deceased for

the month of April 2015 and has factored 30% of the

income of the deceased as the loss of future prospects

which is in line with the judgment of the Apex court in the

case of NATIONAL INSURANCE COMPANY LIMITED

vs. PRANAY SETHI AND OTHERS [(2017) 16 SCC 680]

and we do not feel it necessary to interfere with this

finding of the Tribunal. The Tribunal has granted a sum of

Rs.1,00,000/- towards loss of estate which is on the higher

side and needs to be pegged down. However, the

claimants are not entitled to Rs.2,00,000/- towards loss of

love and affection and Rs.1,00,000/- towards loss of

consortium. The claimants are entitled to loss of filial

consortium / spousal consortium / parental consortium at

Rs.40,000/- to each of the claimants. In addition, they are

entitled to compensation of a sum of Rs.15,000/- towards

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

19. In that view of the matter, the appeal, MFA

No.2102/2017, filed by the insurer (respondent in MVC

No.1040/2015) is allowed in part and in modification of the

impugned Judgment and Award passed by the Tribunal,

the compensation of Rs.33,56,000/- awarded by the

Tribunal is reduced to a sum of Rs.30,81,000/-. The

insurer shall deposit the compensation after deducting the

sum of Rs.6,25,880/- already deposited by it along with

interest with the rate of 7% per annum from the date of

the claim petition till the date of realization within a period

of one month from the date of receipt of a certified copy of

this judgment.

20. MFA No.7615/2017 filed by claimants is

dismissed.

21. The amount in deposit in MFA No.2102/2017

shall be transferred to the Tribunal for necessary orders.

22. The compensation shall be distributed among

the claimants in the same ratio as determined by the

Tribunal.

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JUDGE

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JUDGE

sma