Karnataka High Court
Gundappa And Ors vs The Divisional ... on 10 November, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.202111/2019 (MV)
BETWEEN
1. GUNDAPPA S/O BHEEMRAO KHADKE,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: HOLSAMUDRA VILLAGE, TQ: AURAD-B,
DIST: BIDAR, NOW AT H. NO: 17-4-507,
GURU NIVAS, NEAR MOUNESHWAR TEMPLE,
CMC COLONY, OPP: GUMPA, BIDAR-584501.
2. RAJKUMAR S/O GUNDAPA KHADKE
AGE: 44 YEARS, OCC: ADVOCATE,
3. SHIVKUMAR S/O GUNDAPA KHADKE
AGE: 44 YEARS, OCC: OVT. SERVICE,
4. SANJEEVKUMAR S/O GUNDAPA KHADKE
AGE: 42 YEARS, OCC: AGRICULTURE,
5. REKHA D/O GUNDAPA KHADKE
AGE: 38 YEARS, OCC: HOUSEHOLD,
ALL R/O DEVAN HIPPARGA, TQ: UDGIR,
DIST: LATUR, MAHARASHTRA.
...APPELLANTS
(BY SRI SANTOSH BIRADAR, ADVOCATE)
2
AND
THE DIVISIONAL CONTROLLER/MANAGER
OF NEKRTC, OLD BUS-STAND, BIDAR-585401.
...RESPONDENT
(BY SRI S.M.PATIL, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING
THAT THIS HON BLE COURT MAY BE PLEASED TO ALLOW
THE APPEAL, MODIFY THE IMPUGNED JUDGMENT AND
AWARD DATED 02.11.2017 PASSED BY THE COURT OF
THE ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, BIDAR
IN MVC NO.136/2016 AND ENHANCE THE COMPENSATION
AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173 (1) of the
Motor Vehicles Act, 1988 (for short 'M. V. Act') by the
claimants aggrieved by the judgment and award dated
02.11.2017 passed in MVC.No.136/2016 on the file of
Additional Senior Civil Judge and Additional MACT at Bidar.
02. Facts leading up to filing of the present appeal
are that on 15.02.2015 the deceased Sushilamma the wife
of claimant No.1 and mother of claimant Nos.2 to 5 was
traveling in a Cruiser Jeep bearing Reg.No.KA-48/M-916
for the purpose of Darshan of Revanshiddeshwar Temple.
When the Jeep reached near Hallikhed-K Wadi village, the
same was stopped by the side of the road to attend the
nature call and thereafter, proceeded towards Jeep, at that
time a KSRTC Bus bearing Reg.No.KA-38-F-889 came in a
rash and negligent manner and dashed deceased -
Sushilamma and she sustained fatal injuries. The said
Sushilamma died due to serious injuries on 16.02.2016.
03. Thereupon the claimant No.1 - husband and
children of the deceased - Sushilamma filed a claim
petition under Section 166 of the M. V. Act seeking
compensation in a sum of `.19,00,000/- along with
interest at the rate of 18% p.a. on the premise that the
deceased was aged about 65 years and was hale and
healthy. The deceased was earning `.8,000/- per month
from agricultural activities apart from rendering household
services. That in view sudden demise of the deceased the
claimants have suffered mentally and financially.
04. Upon service of notice the respondent -
corporation appeared through its learned counsel and filed
statement of objections denying the claim petition
averments. The respondent has also denied the age,
income and occupation of the deceased. That it is
contended that the claim made by the claimants is
baseless and exorbitant, as deceased was in excess of 70
years as on the date of death. It is further contended that
the accident had occurred due to negligence on the part of
the deceased while crossing the road. Hence, sought for
dismissal of the claim petition.
05. The Tribunal based on the pleadings of the
parties, framed issues and recorded evidence. The
claimant No.2 examined himself as PW.1 and marked six
documents as Exs.P1 to 6. On behalf of the corporation
one witness examined as RW.1 and no documents were
marked.
06. The Tribunal based on the pleadings and
evidence on record held that the accident in question
occurred due to rash and negligent driving of the bus by its
driver causing death of deceased - Sushilamma.
Consequently, the Tribunal held that the claimants are
entitled for a total compensation of `.3,60,000/- along with
interest at the rate of 6% p.a. from the date of petition till
payment under the following heads:-
Sl. Heads Amount
No.
01. Love and affection `.0,50,000/-
02. Towards loss of estate `.0,50,000/-
03. Towards funeral expenses `.0,20,000/-
04. Towards loss of dependency `.2,40,000/-
Total `.3,60,000/-
07. The Tribunal while awarding the compensation
directed the respondent to deposit the compensation
amount within two months from the date of judgment.
08. Being aggrieved by the aforesaid judgment and
award, the claimants are before this Court seeking
enhancement of compensation.
09. The learned counsel for the appellants -
claimants reiterating the grounds urged in the appeal
memorandum submitted that the Tribunal has erred in
assessing the notional income of the deceased at `.6,000/-
per month even while the deceased was earning `.8,000/-
per month from agricultural activities apart from household
services. He further submitted that the Tribunal erred in
applying multiplier at 5 instead of 7 by taking into
consideration the age of the deceased at 65 years. He
further submits that the Tribunal erred in not awarding the
compensation under the conventional heads. He also
contended that the Tribunal erred in deducting the amount
at 1/3rd towards personal and living expenses of the
deceased which ought to have 1/4th considering the
numbers of family members of the deceased.
10. Per contra, the learned counsel for the
insurance company submitted that no material is produced
by the claimants to justify the claim of income. That
compensation awarded by the Tribunal under the
conventional heads is just and proper, in view of the fact
that the claimant No.2 is an advocate, claimant No.3 is
employed in a private service and claimants No.4 and 5
are not the dependents of the deceased. He further
submitted that the deceased was 65 years cannot be
entitled to carry out agricultural activities as mentioned in
the claim petition. Hence, sought for dismissal of the claim
petition.
11. Heard the learned counsel for the parties and
perused the records. The only point that arise for
consideration are:
Whether the claimants have made out a
case for enhancement of
compensation?.
12. The accident in question resulting the death of
the deceased is not in dispute. Though claimants have
contended that the deceased was earning `.8,000/- per
month from agricultural activities in addition thereof was
doing household services, but no material has been
produced in that regard. The Tribunal under the
circumstances has assessed the notional income of the
deceased at `.6,000/- per month. This Court, in the
absence of any material with regard to income of the
victims of road traffic take into consideration the chart
prepared by Karnataka State Legal Services Authority.
According to which the notional income of the victim of
road traffic accident occurred in the year 2016 is fixed at
`.8,750/- per month. In the instant case the accident was
occurred on 15.02.2016. Therefore, the notional income
has to be taken into consideration at `.8,750/- per month
instead of `..6,000/- per month as considered by the
Tribunal. The deceased was aged about 65 years and
proper multiplier applicable at 7 instead of 5 as applied by
the Tribunal.
13. The learned counsel for the appellants
submitted that the claimants being dependants, the
deduction of 1/4th be taken into consideration instead of
1/3rd which has been strongly opposed by the corporation.
It is seen from the records that claimant No.1 is the
husband of the deceased and claimant No.2 is practicing
advocate and claimant No.3 is rendering service in private
sector and claimants No.4 and 5 being independent. The
Tribunal has deducted 1/3rd and assessed the income
towards personal and living expenses. Taking into
consideration these aspects of the matter more particularly
nature of occupation of claimants, age of deceased and in
the facts and circumstances of this matter the deduction of
1/3rd made by the Tribunal towards personal and living
expenses of the deceased is maintained is just and proper.
Thus, calculating as above, the loss of income of the
deceased would be `..4,90,000/- (`.8,750/- minus 1/3rd =
`.5,834 x 12 x 7).
14. As regards the award of compensation under
the conventional heads, in view of the law laid down by the
Ho'ble Supreme Court in the case of Magma General
Insurance Company Limited vs Nanu Ram Alias
Chuhru Ram and others reported in (2018) 18 SCC
130 and in the case of United India Insurance
Company Limited vs. Satinder Kaur @ Satwinder
Kaur and others reported in 2020 SCC Online SC 410,
the claimant No.1 - husband of the deceased is entitled for
`.40,000/- towards spousal consortium and respondent
No.4 and 5 are entitled for `.40,000/- each towards filial
consortium. In addition the claimants are entitled for
`.15,000/- towards funeral expenses and `.15,000/-
towards loss of estate. Therefore, the compensation
awarded by the Tribunal deserves to be re-determined and
re-calculated as follows:-
Sl. Awarded by the Enhanced by this
Heads
No. Tribunal Court
01 Love and affection `.0,50,000/- `.0,50,000/-
02 Towards loss of estate `.0,50,000/- `.0,15,000/-
03 Towards funeral `.0,20,000/- `.0,15,000/-
expenses
04 Towards loss of `.2,40,000/- `.4,90,000/-
dependency
05 Towards loss of spousal - `.1,20,000/-
and filial (Rs.40,000x3)
Total `.3,60,000/- `.6,90,000/-
15. In the result, the following;
ORDER
(i) The MFA.No.202111/2019 filed by the
appellants - claimants is partly allowed.
(ii) The judgment and award dated
02.11.2017 passed in MVC No.136/2016
on the file of Additional Senior Civil
Judge and Additional MACT at Bidar is
modified.
(iii) The claimants are held entitled for a total
compensation of `.6,90,000/- together
interest at the rate of 6% p.a. from the
date of claim petition till payment.
(iv) The respondents No.2 is liable to pay
compensation equally within a period of
two months from the date of receipt of
certified copy of this judgment.
Sd/-
JUDGE
Srt/KJJ
