Sri Javaregowda vs The Divisional Controller
2021 Latest Caselaw 2634 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JULY 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.232 OF 2021 (MV-D)
BETWEEN:

1.     SRI JAVAREGOWDA
       S/O LATE MARIGOWDA
       AGED ABOUT 54 YEARS

2.     SRI MAHADEVA H J
       S/O JAVAREGOWDA
       AGED ABOUT 30 YEARS

3.     SRI PRABHAKAR H J
       S/O JAVAREGOWDA
       AGED ABOUT 28 YEARS

       ALL ARE RESIDENTS OF
       HEBBALU VILLAGE AND POST
       K R NAGAR TALUK
       MYSURU DISTRICT
       NOW RESIDING AT DOORA VILLAGE AND POST
       JAYAPURA HOBLI
       MYSURU TALUK AND DISTRICT-570 008.
                                            ...APPELLANTS

(BY SRI BHANU PRAKASH H.V., ADVOCATE)

AND:

THE DIVISIONAL CONTROLLER
KARNATAKA STATE ROAD TRANSPORT CORPORATION
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(KSRTC) , MYSURU DIVISION
MYSURU-570 015.
                                                ...RESPONDENT

(BY SRI G. LAKSHMEESH RAO, ADVOCATE)

                             ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
17.09.2019, PASSED IN MVC NO.44/2019, ON THE FILE OF
THE III-ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU,
PARTLY    ALLOWING      THE   CLAIM   PETITION   FOR
COMPENSATION      AND    SEEKING   ENHANCEMENT    OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION , THIS DAY,
HEMANT     CHANDANGOUDAR       J.,  DELIVERED    THE
FOLLOWING:

                        JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act' for short) is

filed by the claimants seeking enhancement of the amount of

compensation, against the judgment dated 17.09.2019 in

MVC.44/2019 passed by the III Additional District Judge and

MACT, Mysuru (hereinafter referred to as 'the Tribunal' for

short).

2. Facts giving rise to the filing of the appeal briefly

stated are that on 06.10.2018, when Sannamma was

crossing the road near Hebbalu Bus Stand, at that time, a

KSRTC bus came from Chunchanakatte side in a rash and

negligent manner and dashed against Sannamma. As a

result of the same, the said Sannamma sustained grievous

injuries and was shifted to JSS Hospital, Mysuru, wherein she

underwent treatment as an inpatient from 6.10.2018 to

18.10.2018. Despite the treatment, she succumbed to her

injuries on 18.10.2018.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 48 years at the time of

accident and was engaged in coolie work and milk vending

business and was earning a sum of Rs.28,000/- per month. It

was further pleaded that the accident took place solely on

account of rash and negligent driving of the KSRTC by its

driver. The claimants claimed compensation to the tune of

Rs.38,10,000/- along with interest.

4. The respondent - KSRTC filed objections denying

the averments of the petition and the mode and manner of

the accident was denied. The age, avocation and income of

the deceased were also denied and it was pleaded that the

claim of the claimants is exorbitant and excessive. It was

further contended that the accident was solely due to

negligence of the deceased Sannamma, who was crossing

the road.

5. On the basis of the pleadings of the parties, the

Tribunal framed the issues and thereafter recorded the

evidence. The claimant No.1 examined himself as PW1, eye

witnesses to the accident were examined as PW2 and PW3

and got exhibited documents namely Ex.P1 to Ex.P11. The

respondent got examined one witness as RW1 and got

marked two documents as Exs.R1 and R2.

6. The Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of rash and

negligent driving of the KSRTC by its driver. It was further

held that as a result of the 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.10,91,351/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal is filed seeking

enhancement of the amount of compensation.

7. Learned counsel for the claimants submitted that

the Tribunal has grossly erred in assessing the income of the

deceased as Rs.9,000/- per month instead of Rs.28,000/- per

month. He further submitted that the compensation awarded

under the conventional heads is on the lower side and the

same requires to be enhanced.

8. Learned counsel for the Insurance Company

submitted that the compensation awarded by the Tribunal is

just and proper and the claimants are not entitled for

enhancement of compensation. He further submitted that

the amount of compensation awarded by the Tribunal is just

and proper and does not call for any interference.

9. On the other hand learned counsel for the

respondent- Corporation submitted that that the Tribunal has

rightly assessed the income of the deceased at Rs.9,000/-

p.m. and the compensation awarded by the Tribunal is just

and proper and sought for dismissal of the appeal.

10. We have considered the submissions made by

learned counsel for the parties and have perused the record.

11. The only question which arises for our

consideration in this appeal is with regard to the quantum of

compensation.

12. Admittedly, the claimants have not produced any

evidence with regard to the income of the deceased. It is

also not in dispute that the deceased at the time of accident

was aged about 48 years which is evident from the post

mortem report at Ex.P3 and was engaged in coolie work and

milk vending business. The claimants have not produced any

proof to substantiate their claim that the deceased was

earning a sum of Rs.28,000/- per month. The Tribunal has

erred in estimating the income of the deceased at Rs.9,000/-

per month. The accident is of the year 2018. In the

absence of proof of income, the notional income of the

deceased is assessed at Rs.12,500/- per month as per the

chart prepared by the Karnataka Legal Service Authority.

13. 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, 25% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.15,625/-. Since, the number of dependents are

three, 1/3rd of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.10,417/-. Taking into accou0nt the age of the

deceased at 48 years at the time of accident, multiplier of

'13' has to be adopted. Therefore, the claimants are held

entitled to (Rs.10,417/- x 12 x 13) i.e., Rs.16,25,052/- on

account of loss of dependency.

14. In view of law 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 claimants are entitled to a sum of

Rs.40,000/- on account of loss of consortium and loss of 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.

15. The compensation amount of Rs.1,58,851/-

awarded by the Tribunal towards medical expenses is just

and proper and the same is maintained.

16. Thus, in all, the claimants are held entitled to a

total compensation of Rs.19,33,903/-. The enhanced

compensation of Rs.8,42,555/- shall carry interest at the rate

of 6% from the date of filing of the petition till the realization

of the amount of compensation. To the aforesaid extent, the

judgment passed by the Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

BKM