Smt. Sunandamma vs The Divisional Controller
2021 Latest Caselaw 9 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2021

                       PRESENT

          THE HON'BLE MRS. JUSTICE S. SUJATHA

                          AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

               MFA NO.3613 OF 2018 (MV)

BETWEEN:

1.     SMT. SUNANDAMMA
       W/O LATE C. CHANNEGOWDA
       AGED ABOUT 57 YEARS

2.     GEETHA M. C.
       D/O LATE C. CHANNEGOWDA
       AGED ABOUT 27 YEARS

3.     RAMYA M. C.
       D/O LATE C. CHANNEGOWDA
       AGED ABOUT 25 YEARS
       ALL THE PETITIONERS ARE PERMANENT
       RESIDENTS OF BEHIND ADARSHA SCHOOL
       HOUSING BOARD, MANDYA CITY, MANDYA

                                       ... APPELLANTS
(BY SRI. RAJESWARA P. N. ADV.)

AND:

THE DIVISIONAL CONTROLLER
KSRTC (BUS STAND)
MANDYA DIVISION
MANDYA - 571 401                       ... RESPONDENT

(BY SMT. SWETHA ANAND, ADV.)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED 29.01.2018 PASSED IN MVC NO.1609/2016, ON THE
FILE OF PRL.SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE AND MACT, MANDYA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR ADMISSION, THIS DAY,
M.I.ARUN J., DELIVERED THE FOLLOWING:

                              JUDGMENT

Aggrieved by the judgment and award passed in MVC

No.1609/2016 by the Principal Senior Civil Judge and MACT,

Mandya dated 29.01.2018 (for short 'the Tribunal'), the

petitioners therein have preferred this appeal.

2. For the sake of convenience, parties are referred to

as per their ranking before the Tribunal.

3. It is contended by the petitioners that, on

07.08.2016 at about 11.20 p.m. when deceased

Sri.C.Channegowda who was walking on a foot path of

Bangalore-Mysore Road in MIMS, Mandya, a KSRTC Bus

bearing Reg. No.KA-40-F-921 being driven in a rash and

negligent manner dashed against the deceased from

behind, as such, he fell down and sustained injuries and

succumbed to the same.

4. Petitioner No.1 is the wife of the deceased and

petitioner Nos.2 and 3 are the daughters of the deceased.

Respondent is the Corporation to which the offending Bus

belongs to.

5. The deceased at the time of the accident was aged

about 69 years and was a Retired Section Officer. The

petitioners as legal heirs of the deceased preferred MVC

No.1609/2016 before the Tribunal.

6. On service of notice, the respondent has appeared

before the Tribunal, denied the liability and sought for

dismissal of the claim petition.

7. The petitioners examined two witnesses and got

marked Exs.P.1 to P.11. The respondent examined one

witness.

8. Based on the pleadings and evidence let in, the

Tribunal came to the conclusion that the accident happened

due to rash and negligent driving of the Bus belonging to

the respondent but there was also contributory negligence

on the part of the deceased and on facts has held, the

contributory negligence on the part of the deceased to an

extent of 20%. The Tribunal has awarded a sum of

Rs.5,05,000/- along with the interest at 6% per annum

from the date of petition till the date of realization as

compensation to the petitioners. Not satisfied by the same,

the petitioners have preferred this appeal.

9. The accident is of the year 2016. The deceased

was aged 69 years at the time of the accident. He was

drawing a monthly pension of Rs.21,094/-. The Tribunal on

the ground that even after his death his wife would receive

36% of the pension has deducted Rs.7,594/- from the

monthly pension of Rs.21,094/- and considered the income

at Rs.13,500/- per month to calculate the loss of

dependency. We do not agree with the Tribunal in this

regard. The Hon'ble Supreme Court in Vimal Kanwar v.

Kishore Dan [(2013)7 SCC 476] at paragraphs 18 and

19 has held as under:

"18. The first issue is "whether Provident Fund, Pension and Insurance receivable by the claimants come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction."

19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello vs. Maharashtra SRTC [(1999)1 SCC 90]. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. ..............."

Thus, we deem it appropriate to consider the entire

pension of Rs.21,094/- as the income of the deceased to

calculate the loss of dependency. The deceased being 69

years at the time of the accident, as per the judgment of

the Hon'ble Supreme Court in National Insurance

Company Limited v. Pranay Sethi [(2017)16 SCC

680], would not be entitled to any future prospects.

Petitioner no.2 being a married daughter cannot be

considered a dependent. Thus, on the count of loss of

dependency, the petitioners will be entitled to a sum of

Rs.8,43,760/- as against Rs.5,40,000/- awarded by the

Tribunal [Rs.21,094/- X 12 X 5 X 2/3rd].

10. As per the law laid down by the Hon'ble Supreme

Court in New India Assurance Co.Ltd. v. Somwati

[(2020)9 SCC 644], the petitioners being wife and

daughters of the deceased are entitled to a sum of

Rs.40,000/- each towards loss of consortium. Thus, they

are entitled a sum of Rs.120,000/- towards loss of

consortium.

11. The petitioners are further entitled to a sum of

Rs.30,000/- towards loss of estate and funeral expenses.

Thus, in all, the petitioners are entitled to a sum of

Rs.9,93,760/- as against Rs.6,65,000/- awarded by the

Tribunal. We have perused Ex.P3 which is spot mahazar

and it also contains sketch depicting the accident. The

accident has happened in the middle of the road while the

deceased was crossing the road. There is negligence on

part of the deceased and the Tribunal, in our opinion, has

rightly assessed his negligence at 20%. Thus, 20% of the

sum has to be deducted towards contributory negligence on

the part of the deceased. Further, the interim

compensation of Rs.15,000/- which has been already paid

by the respondent also needs to be deducted. Hence, the

following:

ORDER

i) Appeal stands allowed.

ii) The total compensation awarded by the Tribunal is

modified and enhanced to Rs.9,78,760/- as against

Rs.5,05,000/- which shall carry interest at the rate of

6% per annum from the date of the claim petition till

its realization.

iii) 20% of the contributory negligence apportioned on the

deceased is confirmed.

iv) The insurance company shall deposit the re-assessed

total compensation determined as aforesaid before the

Tribunal within 90 days from the date of receipt of the

certified copy of the judgment and order.

v) The portion of the order of the Tribunal inasmuch as

liability, apportionment and disbursement remains

intact.

vi) The modified compensation shall be disbursed in terms

of the order of the Tribunal.

vii) Draw modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

MH/-