Karnataka High Court

Smt Nirmala Devi vs The Divisional Manager on 16 January, 2021

Author: Alok Aradhe Rangaswamy

                            1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 16TH DAY OF JANUARY, 2021

                      PRESENT

        THE HON'BLE MR.JUSTICE ALOK ARADHE

                        AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

           M.F.A. NO.7402 OF 2017 (MV-D)

BETWEEN:

1.    SMT. NIRMALA DEVI
      W/O LATE UMA THAKUR,
      AGED ABOUT 31 YEARS

2.    MASTER ROASHAN U.,
      S/O LATE UMA THAKUR
      AGED ABOUT 12 YEARS

3.    KUMARI ROSHANI U
      D/O LATE UMA THAKUR
      AGED ABOUT 10 YEARS

4.    KUMARI RASHMI U
      D/O LATE UMA THAKUR
      AGED ABOUT 8 YEARS

5.    MASTER RAJ U
      S/O LATE UMA THAKUR
      AGED ABOUT 5 YEARS

APPELLANTS 2 TO 5 ARE MINOR AND
HENCE REPRESENTED BY THEIR
NATURAL GUARDIAN -
MOTHER - APPELLANT NO.1
                              2




6.     RAMDEV THAKUR
       S/O DHARMICHAND THAKUR
       AGED ABOUT 66 YEARS

7.     SMT. VSHRUDEVI
       W/O RAMDEV THAKUR
       AGED ABOUT 61 YEARS

ALL ARE RESIDING AT NO.10,
MALLASANDRA,
CHANNASANDRA POST,
BENGALURU-560067
PRESENT ADDRESS:
409, TELAHARA,
ANCHAL-DHAKA DISTRICT,
EAST CHAMPARAN.
                                          ...APPELLANTS
(BY SRI. GURUDEV PRASAD K.T., ADVOCATE)

AND:

THE DIVISIONAL MANAGER,
BANGALORE METROPOLITAN
TRANSPORT CORPORATION LIMITED,
K.H. ROAD, SHANTHINAGAR,
BANGALORE-560027.
                                          ...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 07.04.2017, PASSED IN
MVC NO.2103/2016, ON THE FILE OF THE XIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES AND MEMBER OF MACT,
BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND   SEEKING    ENHANCEMENT      OF
COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
                                 3




                             JUDGMENT

Though this appeal is listed today for admission, the

same is taken up for final disposal with the consent of the

learned counsel for the parties.

2. This appeal is filed by the claimants seeking

enhancement of the compensation awarded by the

M.A.C.T. at Bengaluru (SCCH-15) (hereinafter referred to

as 'the Tribunal') in M.V.C.No.2168/2016 in terms of the

judgment and award dated 07.04.2017. Parties will

henceforth be referred to as they were arrayed before the

Tribunal.

3. The claim petition disclosed that the claimants

are the legal representative of Uma Thakur, a Carpenter

aged 34 years. It is claimed that on 07.02.2016, the said

Uma Thakur was riding as a pillion rider on a motorcycle

bearing Registration No.KA-53-EA-8474 on Channasandra-

Mallasandra road near Thirumalasheetyhalli cross. At about

8.30 p.m., a B.M.T.C. bus bearing Registration No.KA-01-

FA-1085 (henceforth referred to as 'the offending vehicle')

being driven by its driver on a wrong lane, in a rash and

negligent manner and dashed against the motorcycle. As a

result, Uma Thakur sustained serious injuries and

succumbed to the injuries in the hospital. A case was

registered against the driver of the offending vehicle in

Cr.No.23/2016. The claimants contended that the

deceased was aged 34 years, who was a Carpenter by

profession and was earning Rs.1,000/- per day. The

claimants claimed that as a result of the untimely death,

they had lost emotional and financial support of the Uma

Thakur. The claimants therefore filed a claim petition

under section 166 of the Motor Vehicles Act, 1988 claiming

compensation of Rs.50,00,000/- from the owner of the

offending vehicle.

4. The owner of the offending vehicle contested

the claim petition and contended that the rider of the

motorcycle rode it in a rash and negligent manner from the

opposite direction and dashed against the front right side

of the bumper of the bus and therefore, the driver of the

offending vehicle was not negligent in any manner and was

not responsible for the accident.

5. With these rival contentions, the claim petition

was set down for trial. Claimant No.1 was examined as

PW.2 and common documents were marked as Exs.P1 to

P27. The owner of the offending vehicle did not adduce

any evidence and did not mark any documents.

6. Based on the oral and documentary evidence,

the Tribunal held that the driver of the offending vehicle

was negligent and solely responsible for the accident.

Insofar as the claim for compensation is concerned, the

Tribunal noticed that the deceased was 34 years old as on

the date of the accident and the notional income of the

deceased was considered at a sum of Rs.8,000/- per

month and deducted 1/5th towards personal expenses of

the deceased and awarded the following compensation:

   Sl.             Heads under which                     Amount in
   No.           compensation is awarded                  Rupees
     1        Loss of dependency                          11,52,000/-
              Loss of Love and Affection
     2                                                    02,10,000/-
              (P-1 to 7 petitioners)
     3        Medical expenses                              03,500/-
              Loss of Estate
     4                                                     1,40,000/-
              (P-1 to 7 petitioner)
              Loss of consortium
     5                                                     1,00,000/-
              (Petitioner No.1)
              Transportation of dead body and
     6                                                      25,000/-
              Funeral Expenses
                               Total                     16,30,500/-



         7.      Feeling       aggrieved     by    the     quantum      of

compensation awarded by the Tribunal, the claimants have

filed this appeal.

8. Learned counsel for the claimants firstly

contended that the Tribunal committed an error in not

awarding compensation towards 'loss of future prospects'

at the rate of 40% of the notional income. He also

contended that the Tribunal committed an error in

considering the notional income at the rate of Rs.8,000/-

per month while the notional income prescribed by the

Karnataka State Legal Services Authority is Rs.9,500/- per

month. He also contended that the Tribunal committed an

error in not awarding compensation towards the 'medical

expenses' Rs.22,537/-. Further he contended that as per

the judgment of the Hon'ble Apex Court in the cases of

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU

RAM & ORS.' reported in (2018) 18 SCC 130, the

Tribunal ought to have awarded compensation towards

'loss of filial, parental and consortium', which has been

subsequently clarified in the case of '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'.

9. Per contra, learned counsel for the owner of

the offending vehicle contended that the Tribunal had

awarded a sum of Rs.2,10,000/- towards 'loss of love and

affection', a sum of Rs.1,00,000/- towards 'loss of

consortium' for the claimant no.1 and a sum of

RS.1,40,000/- towards 'loss of estate' which were on the

higher side and therefore prayed that this Court may not

disturb the judgment and award as the compensation

awarded by the Tribunal is just and proper.

10. We have considered the arguments advanced

by the learned counsel for the parties. We have also

perused the records of the Tribunal and its judgment and

award.

11. As rightly contended by the learned counsel for

the claimants, the Tribunal ought to have accepted the

notional income of the deceased at Rs.9,500/- per month

and as per the judgment of the Hon'ble Apex Court in the

case of NATIONAL INSURANCE COMPANY LIMITED

VS. PRANAY SETHI AND OTHERS reported in (2017

(16) SCC 680), the Tribunal ought to have factored 40%

of the notional income toward 'loss of future prospects'. It

is also seen that the claimants had spent a sum of

Rs.22,500/- towards the cost of treatment of the deceased

at hospital and therefore, the claimants were entitled for

re-imbursement of this cost. Hence the compensation to

which the claimants are entitled to is re-determined as

follows:

     Sl.         Heads under which                 Amount in
     No.       compensation is awarded              Rupees
     1     Loss of dependency                  20,42,880/-
     2     Loss of spousal consortium                40,000/-
           Loss of parental consortium
     3                                             1,60,000/-
           (Claimant Nos.2 to 5)
           Loss of filial consortium
     4                                               80,000/-
           (Claimant Nos.6 and 7)
     5     Medial expenses                           22,500/-
     6     Loss of estate                            50,000/-
     7     Funeral expenses                          25,000/-
                            Total              24,20,380/-

12. Consequently, this appeal is allowed-in-part.

The impugned Judgment and award passed by the Tribunal

is modified and the compensation awarded by the Tribunal

is enhanced from Rs.16,30,500/- to a sum of

Rs.24,20,380/- which shall be paid by the owner/insurer of

the offending vehicle along with interest at 6% per annum

from the date of the claim petition till the date of

realization.

The respondent shall deposit the compensation

amount along with interest as stated above before the

Tribunal within a period of one month from the date of

receipt of a certified copy of this Judgment.