The Managing Director vs Sri P Chandramouli
2021 Latest Caselaw 2193 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.2593 OF 2020 (MV-D)
                             C/W
              M.F.A. NO.3299 OF 2020 (MV-D)


M.F.A. NO.2593 OF 2020


BETWEEN:

THE MANAGING DIRECTOR
KSRTC
SARIGE BHAVANA
K.H. ROAD, SHANTINAGAR
BANGALORE-560027
NOW REP. CHIEF LAW OFFICER.
                                              ... APPELLANT
(BY SRI. B. PALAKSHAIAH, ADV.,)

AND:

1.     SRI. P. CHANDRAMOULI
       S/O P. ANJENAYALU NAIDU
       AGE 70 YEARS.

2.     SMT. P. SUJATHA
       W/O P. CHANDRAMOULI
       AGE 64 YEARS.
                              2




3.   SRI. P. DORABABU
     W/O P. CHANDRAMOULI
     AGE 39 YEARS.

     ALL ARE RESIDING AT 1
     RAVILLAVARIPALLI VILLAGE
     PATHIPUTTUR POST
     RAMACHANDRAPURAM MADAL
     CHITTOR DISTRICT
     ANDHRA PRADESH 517561.
                                         ... RESPONDENTS
(BY SRI. N. GOPAL KRISHNA, ADV.)

                            ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.10.2019 PASSED
IN MVC NO.4788/2018 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), AWARDING
COMPENSATION OF RS.33,59,710/- WITH FUTURE INTEREST AT 6
PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION
OF ENTIRE AMOUNT.

M.F.A. NO.3299 OF 2020


BETWEEN:

1.   SRI. P. CHANDRAMOULI
     S/O P. ANJANEYULU NAIDU
     AGED 70 YEARS.

2.   SMT. P. SUJATHA
     W/O P. CHANDRAMOULI
     AGED 64 YEARS.

3.   SRI. P. DORABABU
     S/O P. CHANDRAMOULI
     AGED 39 YEARS.
                                3




       ALL ARE RESIDING AT NO.1
       RAVILLAVARIPALLI VILLAGE
       PATHIPUTTUR POST
       RAMACHANDRAPURAM MANDAL
       CHITTOOR DISTRICT
       ANDHRA PRADESH.
                                                  ... APPELLANTS
(BY SRI. GOPAL KRISHNA N, ADV.,)

AND:

THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, K H ROAD
SHANTHINAGAR
BENGALURU - 560027.
                                                  ... RESPONDENT
(BY SRI. B. PALAKSHAIAH, ADV.)

                              ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.10.2019 PASSED
IN MVC NO.4788/2018 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALUGU (SCCH-7), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THESE M.F.As. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                           JUDGMENT

M.F.A.No.3299/2020 has been filed by the claimants

seeking enhancement of the amount of compensation,

whereas, M.F.A.No.2593/2020 has been filed by the

Karnataka State road Transport Authority (hereinafter

referred to as 'the KSRTC' for short) under Section 173(1) of

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

Act', for short) against the judgment dated 21.10.2019

passed by the Motor Accident Claims Tribunal in MVC

No.4788/2018. Since, both the appeals arise out of the same

accident and from the same judgment, they were heard

together and are being decided by this common judgment.

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

stated are that on 30.07.2018, the deceased P Visweswar

was riding a motor cycle bearing registration No.KA-01-JA-

0746. When he reached near Bharath Petrol Bunk,

Murakambattu, Chittor, a KSRTC bus bearing Registration

No.KA-06-F-1126, which was being driven by its driver in a

rash and negligent manner, came to the wrong side and

dashed against the motor cycle which the deceased was

riding. As a result of the aforesaid accident, the deceased

sustained grievous injuries and succumbed to the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 34 years at the time of

accident and was employed as a team manager at Accenture,

Bangalore and was earning a sum of Rs.70,000/- per month.

It was further pleaded that accident took place solely on

account of rash and negligent driving of the KSRTC bus by its

driver. The claimants claimed compensation to the tune of

Rs.1,00,00,000/- along with interest.

4. The KSRTC filed written statement, in which the

mode and manner of the accident was denied. It was pleaded

that the accident occurred on account of the negligence of

the deceased himself in riding the motor cycle in a rash and

negligent manner and dashed against a roadside culvert and

that the offending KSRTC bus was not involved in the

accident. The age, avocation and income of the deceased

was also denied and it was pleaded that the claim of the

claimants is exorbitant and excessive.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined himself as PW-1,

PW2 Syed Rahil Mohsin, PW3 P Ramesh and got exhibited

documents namely Ex.P1 to Ex.P28. The respondents

examined Lokesh (RW1) and adduced documents namely

Ex.R1 and Ex.R2. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place on

account of rash and negligent driving of the KSRTC bus by its

driver. It was further held, that as a result of 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.33,59,710/- along with

interest at the rate of 6% per annum. Being aggrieved, these

appeals have been filed.

6. Learned counsel for the KSRTC submitted that

the Tribunal erred in holding that the accident occurred on

account of the negligence of the driver of the KSRTC bus

when the evidence of RW1 Lokesh, Ex.R1 Photographs, Ex.P4

IMV Report and other evidence on record indicate that the

accident occurred on account of the negligence of the

deceased himself as the deceased lost control over his motor

cycle on account of the loose sand on the road and dashed

against a road side culvert. It is further submitted that the

Tribunal erred in not deducting the variable allowances,

income tax and professional tax from the income of the

deceased while assessing compensation under the head 'Loss

of Dependency'. In support of the aforesaid submission

reliance has been placed on APSRTC VS RATHNAKAR ILR

2014 KAR 6083 AND NEW INDIA ASSURANCE

COMPANY LIMITED VS. MANISH GUPTA 2013(1) KLJ

624. On the other hand, learned counsel for the claimant

submitted that the Tribunal has after meticulous appreciation

of the entire evidence on record has held that the accident

occurred on account of the negligence of the driver of the

KSRTC bus in driving the same. It is further submitted that

Tribunal erred in deducting the sum received by the

claimants on account of Life Insurance and Group Personal

Accident Insurance to the extent of Rs.8,87,000/- and

Rs.26,61,000/- respectively from the total compensation

awarded to the claimants. It is also submitted that the sums

awarded under the heads 'loss of consortium' and 'funeral

expenses' are on the lower side and deserves to be enhanced

suitably.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court in DULCINA FERNANDES v. JOAQUIM

XAVIER CRUZ (2013) 10 SCC 646 has held that the

approach of the Tribunal should be holistic of the entire

pleading and evidence by applying the test of preponderance

of probabilities. It was further held that it was necessary to

be borne in mind that strict proof of an accident caused by a

particular bus in a particular manner may not be possible to

be done by the claimants. The court restated that the settled

principle is that the evidence of the claimants ought to be

examined on the touchstone of preponderance of

probabilities and certainly the standard of proof beyond

reasonable doubt could not be have been applied. The

Supreme Court in 'MANGALA RAM VS. ORIENTAL

INSURANCE CO.', (2018) 5 SCC 656 has held that the

proceeding under the Act has to be decided on the basis of

preponderance of probabilities and claimant is not required to

prove the accident beyond reasonable doubt. The aforesaid

proposition of law has been reiterated by the Supreme Court

in SUNITA AND ORS VS. RAJASTHAN STATE ROAD

TRANSPORT CORPORATION AIR 2019 SC 994. In view

of the aforesaid legal position, facts of the case on hand may

be examined.

8. It is the specific case of the claimants that the

accident occurred due to the negligence of the driver of the

KSRTC bus who drove the same in a rash and negligent

manner and hit the motor cycle which the deceased was

riding from the hind side. Admittedly, PW1 is not an eye

witness to the accident. P Ramesh (PW3) who is an eye

witness to the accident has stated in his evidence that the

accident occurred due to the negligence of the driver of the

KSRTC bus who drove the same in a rash and negligent

manner and hit the motor cycle which the deceased was

riding from the hind side. He further states that he works as

a pump operator at the Bharath Petrol Bunk where the

accident had taken place and had witnessed the entire

accident and had taken the deceased to the hospital for

treatment. Nothing to the contrary has been elicited from his

cross examination. Ex.P1 FIR, Ex.P2 Complaint and Ex.P8

Chargesheet have been filed against the driver of the KSRTC

bus, describing the accident as stated by P Ramesh (PW3).

Ex.P3 Spot Sketch indicates that the accident has occurred

on the extreme left side of the road and in front of the

Bharath Petrol bunk. Ex.P4 IMV Report indicates that the

KSRTC bus has sustained damage to the front left portion

above the head light. All the aforesaid documentary evidence

corroborate the evidence of P Ramesh (PW3) that the

accident occurred due to the negligence of the driver of the

KSRTC bus who drove the same in a rash and negligent

manner and hit the motor cycle which the deceased was

riding from the hind side. It is pertinent to note that the

evidence of RW1 Lokesh N is not reliable as he is not an

independent witness. Therefore, on the basis of the aforesaid

oral and documentary evidence as well as on the basis of

preponderance of probabilities, we affirm the finding of the

Tribunal with regard to the negligence of the driver of the

KSRTC bus in causing the accident.

9. Now we may advert to the quantum of

compensation. It is well settled in law that any contributions

made by the deceased during his lifetime which forms a part

of the salary is to be included in the monthly income while

computing the loss of dependency and that the only

permissible deductions from the salary of the deceased are

those which are statutory in nature and the benefit of which

would not pass on to the family of the deceased such as

deductions on account of income tax, professional tax etc.

[SEE: NATIONAL INSURANCE COMPANY LTD. VS.

INDIRA SRIVASTAVA (2008) 2 SCC 763]. Ex.P27 Pay

Slips adduced by the claimant which have been duly proved

by examining the employer of the deceased viz., PW2 Syed

Mohsin. Pay Slips for the month of February 2018, March

2018, April 2018 and May 2018 consistently indicate that the

gross pay of the deceased was Rs.57,082/- per month. From

the aforesaid amount, Rs.200/- per month and Rs.3,071/-

per month on account of professional tax and income tax

deductible at source respectively, as evident from the

aforesaid pay slips are to be deducted in view of the law laid

down by the Supreme Court in INDIRA SRIVASTAVA

supra. Therefore, the monthly income of the deceased is

assessed at Rs.53,811/-.

10. 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, 40% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.75,335/-. Since, the deceased is a bachelor,

therefore, half of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.37,667/-. Taking into account the age of the

deceased which was 36 years at the time of accident, the

multiplier of '15' has to be adopted. Therefore, the claimants

are held entitled to (Rs.37,667x12x15) i.e., Rs.67,80,060/-

on account of loss of dependency.

11. In view of 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.'

AIR 2020 SC 3076 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. 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.

12. It is well settled in law that the deductions on

account of life insurance, group insurance or on account of

pensionary benefits or gratuity which is paid to the claimants

by the employer due to the terms of the employment of the

deceased are not deductible from the compensation awarded

to the deceased under Section 166 of the Act. (SEE :

HELLEN C REBELLO AND ORS VS MAHARASHTRA STATE

ROAD CORPORATION AND ANR (1991) 1SCC 90, LAL

DEI AND ORS VS HIMACHAL ROAD TRANSPORT (2007)

8 SCC 319 and SEBASTIANI LAKRA VS NATIONAL

INSURANCE CO. LTD. (2019) 17 SCC 465). Therefore, in

view of the aforesaid settled legal position, the deductions

made by the Tribunal from the compensation payable to the

claimants to the extent of Rs.8,87,000/- and Rs.26,61,000/-

Group Personal Accident Insurance respectively are not

sustainable and the same are set aside and it is held that the

claimants are held entitled to a total compensation of

Rs.69,30,060/-. Needless to state that the enhanced amount

of compensation viz., Rs.35,70,350/- shall carry interest at

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

petition till the payment is made.

13. The reliance placed by the learned counsel for the

KSRTC on the decisions of this court in APSRTC VS

RATHNAKAR ILR 2014 KAR 6083 AND NEW INDIA

ASSURANCE COMPANY LIMITED VS. MANISH GUPTA

2013(1) KLJ 624 is misplaced and are not applicable to the

facts of the instant case, as the same relate to deduction on

account of reimbursement through medi-claim policy and not

to deduction on account of life insurance claims.

To the aforesaid extent, the judgment passed by the

Claims Tribunal in MVC No.4788/2018 is modified. The

amount in deposit, if any, shall be transmitted to the

Tribunal.

Accordingly, the appeals are partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss