Karnataka High Court
Shaila vs Divisional Controller,Ksrtc on 7 April, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.4082 OF 2021(MV)
BETWEEN:
1. SHAILA
W/O.LATE M.L.ASHOKA
AGED ABOUT 45 YEARS
2. LAKSHMI
D/O.LATE M.L.ASHOKA
AGED ABOUT 27 YEARS
3. M.A.LOKESHA
S/O.LATE M.L.ASHOKA
AGED ABOUT 23 YEARS
4. DYAVAMMA
W/O.LATE LACHMEGOWDA
AGED ABOUT 68 YEARS
ALL ARE RESIDING AT
MADAPURA VILLAGE
KATTAYA HOBLI
HASSAN TALUK & DISTRICT - 573 201
... APPELLANTS
(BY SRI GIRISH B BALADARE , ADVOCATE)
AND:
DIVISIONAL CONTROLLER
KSRTC, HASSAN DIVISION
HASSAN - 573 201 ... RESPONDENT
(BY SRI F.S.DABALI, ADVOCATE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
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30.07.2019 PASSED IN MVC NO.1118/2018 BY II
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MACT,
HASSAN & ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimants challenging
the judgment and award passed by II Additional Senior Civil
Judge and Member, MACT, Hassan in MVC.No.1118/2018
dated 30.07.2019. This appeal is founded on the premise of
inadequacy of compensation.
2. Though this matter is listed for admission, with
consent of learned counsel on both sides, matter is taken
up for final disposal.
3. Parties to the appeal shall be referred to as per
their status before the tribunal.
4. Brief facts of the case is as under:
On 14.02.2018 at 2.00 p.m. when the deceased
M.L.Ashok was proceedings from his Madapura Village to
Siraganahalli Village in his splendor motor bike KA-13-EC-
9338 as a rider along with pillion rider by name,
M.J.Shivanna in order to attend a function and while
returning to his village, near Kyathanahalli Cross, driver of
KSRTC bus bearing registration No.KA-13-F-1912 came
with high speed in a rash and negligent manner so as to
endanger human life and safety, dashed against the motor
cycle ridden by the deceased M.L.Ashok, as a result of
accident, rider of the motor cycle and the pillion rider fell
down and sustained grievous injuries. Immediately, both of
them were shifted by the villagers to the nearby Hospital
and on the way to the Hospital, the deceased M.L.Ashok
succumbed to the injuries. It is stated that the deceased
M.L.Ashok was doing agricultural work and was earning
Rs.25,000/- per month and entire family was dependent on
sole earning member i.e. deceased M.L.Ashok for survival
and sustenance. It is stated that the deceased was aged
49 years as on the date of occurrence of accident. In view
of sudden and untimely death of deceased Ashok due to
rash and negligent driving of driver of KSRTC bus, the
family has lost the beloved member so also the sole earning
member of the family. In view of untimely death and loss
in income, the claimants preferred claim petition seeking
compensation.
4.1. On service of notice to respondent, detailed
statement of objections came to be filed inter alia denying
that the age, avocation, income and liability fastened on the
driver of KSRTC bus. The Insurer also took up the plea that
the entire liability is to be fastened on the rider of motor
cycle-deceased M.L.Ashok, who was riding the same in a
rash and negligent manner and he himself is responsible for
occurrence of accident. Therefore, denied the claim made
by claimants and sought for dismissal of claim petition inter
alia on the grounds urged in the statement of objections.
On the basis of pleadings, the tribunal framed the relevant
issues for consideration.
4.2. In order substantiate issues and establish the
case, the unfortunate widow has got examined herself as
PW.1 and also examined one Shivanna, who was a pillion
rider and got marked Exs.P1 to P12, whereas the
respondent-insured examined its driver as RW.1. However,
no documents came to be produced.
4.3. On the basis of entire material evidence, both
oral and documentary and on hearing the submissions of
learned counsel, the tribunal has awarded compensation of
Rs.12,40,000/- along with interest @ 8% p.a.
5. Being dissatisfied with the amount of compensation
awarded by the tribunal, the claimants are before this Court
in this appeal seeking enhancement of compensation
awarded by tribunal.
6. It is the vehement contention of learned counsel
for claimants that the tribunal has erred in awarding
meager compensation and has totally mis-directed itself in
not assessing proper income of the deceased M.L.Ashok,
despite production of documents with respect to owning of
land which is produced at Exs.P11 and 12. Hence, the
tribunal has committed gross error in not computing just
and reasonable compensation. Hence, it calls for
interference by this Court. The tribunal has also committed
gross error in not awarding compensation under other
heads, more specifically under the head loss of consortium,
in view of the fact that there are four dependents of the
deceased M.L.Ashok. On these grounds, learned counsel
seeks to allow the appeal and consequently, to enhance the
compensation.
7. Per contra, learned counsel for KSRTC vehemently
contends that judgment and award passed by the tribunal
is in accordance with material documents produced by the
claimants and hence, there is no interference called for at
the hands of this Court. He further contends that
admittedly, there is no material proof produced with regard
to income of the deceased apart from production of Exs.P11
and P12 which does not explicitly mention anywhere with
regard to income. Hence, the tribunal has rightly assessed
the income of Rs.9,000/- p.m. which does not call for
interference. The tribunal has assessed the proper
methodology for computation of compensation on the basis
of age, avocation and notional income and has arrived at
suitable, just and reasonable compensation which does not
call for interference. He also contends that the tribunal has
awarded suitable compensation under all other heads.
Hence, the same does not require any interference.
Therefore, he seeks to dismiss the appeal and confirm the
judgment and award passed by the tribunal.
8. Having heard learned counsel for appellants as
well as learned counsel for KSRTC, the point that arise for
consideration is:
"(i) Whether the tribunal has committed an
error in awarding meager compensation
without taking into consideration the
material evidence placed on record?
(ii) Whether the enhancement of
compensation is called for in the present
facts and circumstances of the case?"
9. On perusal of entire material records placed before
the Court and on hearing submissions of learned counsel, I
am of the opinion that the tribunal has failed to take into
consideration the proper assessment of income of deceased
M.L.Ashok and so also the tribunal has erred in not
awarding suitable compensation under the head loss of
consortium. Therefore, interference is called for at the
hands of this Court. Accordingly, I deem it appropriate the
claimants are entitled for enhancement of compensation for
the reasons stated hereinbelow:
(a) It is not in dispute that the accident occurred on
14.02.2018 between the motor cycle ridden by the
deceased M.L.Ashok along with pillion rider M.J.Shivanna
and KSRTC bus. To substantiate the same, the claimant has
got examined PW.1 who is the unfortunate wife and got
marked documents at Exs.P1 to P10 being Police records.
These Police records are placed pursuant to conducting of
an enquiry and investigation. The Police records are not
challenged either by driver of the bus or insurer. Hence,
there being no challenge made to the criminal case
registered against the driver of the bus and no contra
material placed on record to prove that the same being
concocted and fabricated and being not genuine, the
tribunal has rightly held the liability as against the driver of
KSRTC bus. The KSRTC has also not come up with any
appeal in challenging the judgment and award.
(b) Coming to the aspect of income, avocation and
age of the deceased as on the date of occurrence of the
accident, admittedly the deceased was aged 49 years as on
the date of occurrence of the accident. Admittedly there is
no proof of income produced by the claimants, apart from
production of Exs.P.11 and 12, which does not specifically
mentioned anything with regard to income of the deceased
M.L.Ashoka. In view of non production of any proof of
income, the Tribunal has assessed the income at Rs.9,000/-
per month. In the case on hand where there is no proof of
income is produced, the Tribunal ought to have relied on
the Notional Income Chart prescribed by the Legal Services
Authority for assessment of income. In the present case on
hand, the accident having occurred in the year 2018, the
income prescribed for the relevant year is Rs.12,500/- per
month by the Legal Services Authority as notional income.
Therefore, I deem it appropriate to take this income for
assessment of compensation as against Rs.9,000/- p.m.
assessed by the Tribunal.
(c) In view of the fact that the deceased was aged 49
years, 25% needs to be added to the income towards
'future prospectus'. The Tribunal has accordingly added
25% towards 'future prospectus', which is correct and the
same does not call for interference.
(d) With regard to deduction, the Tribunal has
deducted 1/3rd income towards 'living and personal
expenses' of the deceased in view of the fact that there are
two dependants namely the widow and the mother. Hence,
1/3rd is rightly taken by the Tribunal, which also does not
call for interference.
(e) In view of the above, 'loss of dependency' would
be Rs.12,500+25% which comes to Rs.15,625/-. On
deduction of living and personal expenses to an extent of
1/3rd, it would be Rs.5,203/-, 2/3rd of Rs.15,625/- is the
amount that to be expended towards family. Accordingly,
Rs.10,417/- would be taken as income for sustenance of
the family. Therefore, Rs.10,417X12X13 (being an
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appropriate multiplier), the 'loss of dependency' would be
Rs.16,25,052/- which is round off to Rs.16,25,000/-
(f) The Tribunal has awarded the compensation
towards 'loss of consortium' under conventional head
Rs.40,000/-, which I feel on the lower side in view of the
fact that there are four dependants who are major in age
and in view of the judgment of the Hon'ble Apex Court in
the case of National Insurance Company Limited Vs.
Pranay Sethi and Others reported in 2017 ACJ 2700
(SC), wherein it is held that Rs.40,000/- is to be awarded
per head as consortium. Accordingly, Rs.40,000/- per head
requires to be added. Accordingly, 40,000X4 would be
Rs.1,60,000/- as against Rs.40,000/- awarded by the
Tribunal. The Tribunal has rightly awarded the
compensation under head 'loss of estate' as Rs.15,000/-and
Rs.15,000/- towards 'Transportation and funeral expenses',
which does not call for interference. Therefore, the total
compensation consequently gets enhanced to
Rs.18,15,000/-.
(g) In view of the discussions made above, I am of
the opinion that the Tribunal has erred in awarding lesser
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compensation and the same requires enhancement as
discussed above.
(h) Therefore, on the basis of the above discussions
and on hearing the submissions of learned counsel, the
compensation awarded by the Tribunal requires to be
enhanced and modified as mentioned in the below table.
1 Loss of Dependency Rs.16,25,000/-
2 Towards love and affairs Rs.1,60,000/-
(Rs.40,000 per head) (40,000X4)
3 Loss of Estate Rs.15,000/-
4 Transportation and Funeral Rs.15,000/-
expenses
Total Rs.18,15,000/-
Accordingly, I pass the following
ORDER
i) The appeal is allowed in part.
ii) The judgment and award passed by the
Tribunal in MVC No.1118/2018 dated
30.07.2019 is modified.
iii) The appellants- claimants shall be entitled to
total compensation of Rs.18,15,000/- as against
Rs.12,40,000/- awarded by the Tribunal.
iv) All other terms and conditions stipulated by the
Tribunal stands intact.
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v) The respondent- Insurer shall pay the enhanced
compensation of Rs.5,75,000/- at the rate of
6% per annum within a period of four weeks
from the date of receipt of copy of this order
and the same shall be deposited before the
MACT.
vi) The claimants shall not be entitled any interest
for the delayed period.
Sd/-
JUDGE
LB/PN
