Karnataka High Court
The Divisional Controller vs Mrs Sumathi on 9 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6332 OF 2016(MV)
BETWEEN:
The Divisional Controller,
KSRTC, Mangauru Depot,
Bejai, Mangaluru-575001. ... Appellant
(By Sri. Ashok N Nayak, Advocate )
AND:
1. Mrs. Sumathi,
W/o Late P. Gopinatha Pillai,
Aged about 65 years.
2. Miss. Indushree,
D/o Late. P. Gopinatha Pillai,
Aged about 28 years.
Both are residing at
D.No.5-43(A),
Near Post Office,
Kotekar Post,
Beeri, Mangaluru-575001. ... Respondents
(By Sri. G. Ravishankar Shastry, Advocate)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:03.06.2016 passed
in MVC No.1092/2014 on the file of the II Additional
2
District & Sessions Judge, Member, MACT-III, D.K.,
Mangaluru, awarding compensation of Rs.12,85,000/- with
interest @ 6% p.a from the date of petition till realization.
This MFA, coming on for hearing, this day, this
Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the KSRTC (for short,
'Corporation') being aggrieved by the judgment dated
03.06.2016 passed by the Motor Accident Claims
Tribunal, Mangaluru (DK) in MVC No.1092/2014..
2. Facts giving rise to the filing of the appeal
briefly stated are that on 25.11.2013 at about 12.00
p.m. the deceased Gopinath Pillai was standing by the
side of the road for crossing the road near forest gate,
Beeri, Mangaluru Taluk. At that time, a KSRTC bus
bearing registration No.KA-19/F-3184 being driven by
its driver at a high speed, in a rash and negligent
manner, dashed against the deceased. As a result of
the aforesaid accident, the deceased sustained
grievous injuries and succumbed to the injuries on
27.11.2013 at about 8.30 a.m. in the hospital.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondent
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. The age, occupation and income of the
deceased are denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident was due to the
negligence of the deceased himself while crossing the
road. It was further pleaded that the quantum of
compensation claimed by the claimants is exorbitant.
Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 as PW-1
and another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P21. On behalf of
respondents, driver of the bus was examined as RW-1
and no documents were produced. The Claims
Tribunal, by the impugned judgment, inter alia, held
that the accident took place on account of rash and
negligent driving of the offending vehicle by its driver,
as a result of which, the deceased sustained injuries
and succumbed to the injuries. The Tribunal further
held that the claimants are entitled to a compensation
of Rs.12,85,000/- along with interest at the rate of
6% p.a. and directed the Corporation to deposit the
compensation amount along with interest. Being
aggrieved, this appeal has been filed.
6. The learned counsel for the Corporation has
raised the following contentions:
Firstly, at the time of the accident the deceased
was getting monthly pension of Rs.25,306/- and after
his death, his wife was receiving a family pension of
Rs.10,660/-. But the Tribunal has committed an error
in awarding 'loss of dependency' without deducting
that amount.
Secondly, contrary to the judgment of the
Hon'ble Supreme Court in the case of MAGMA
GENERAL INSURANCE CO. LTD. -V- NANU RAM
reported in 2018 ACJ 2782, the Tribunal has
awarded compensation of Rs.1,00,000/- for 'loss of
consortium'. Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for
the claimants has raised the following contentions:
Firstly, the Hon'ble Apex Court in the case of
VIMAL KANWAR AND OTHERS vs. KISHORE DAN
AND OTHERS reported in (2013) 7 SCC 476,
following the judgment of the Hon'ble Apex Court in
the case of HELEN C.REBELLO vs. MAHARASHTRA
SRTC reported in (1999) 1 SCC 90 has held that
family pension cannot be deducted while calculating
'loss of dependency'. Therefore, the Tribunal has
rightly awarded the compensation.
Secondly, the compensation awarded by the
Tribunal on the other heads is just and reasonable.
Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award and original
records.
9. It is not in dispute that Gopinath Pillai died
in the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
The Hon'ble Apex Court in the case of HELEN
C.REBELLO (supra) has observed that family
pension is also earned by an employee for the benefit
of his family in the form of his contribution in the
service in terms of the service conditions receivable by
the heirs after his death. The heirs receive family
pension even otherwise than the accidental death.
With this observation it was held that family pension
receivable by the family after the death is not
deductible. Such an amount will not come within the
periphery of the Motor Vehicles Act to be termed as
'pecuniary advantage' liable for deduction. In view
of the above, the Tribunal is justified in assessing the
compensation under the head of 'loss of dependency'.
In respect of 'loss of consortium' is concerned, in
view of the law laid down by the Hon'ble Apex Court in
the case of MAGMA (supra), the claimant is entitled
to compensation of Rs.40,000/- towards 'loss of
consortium', instead of Rs.1,00,000/- awarded by the
Tribunal. The compensation awarded by the Tribunal
on the other heads is just and reasonable.
The Corporation is directed to deposit the
compensation amount along with interest at 6% p.a.
from the date of filing of the claim petition till the date
of realization, within a period of six weeks from the
date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
Sd/-
JUDGE
Cm/-
