Karnataka High Court

Kasturibai W/O Dagadu Birajadar ... vs The Divisional Controller on 7 February, 2022

Bench: J.M.Khazi

                             1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

      DATED THIS THE 07TH DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MRS. JUSTICE J.M.KHAZI

                 MFA.No.201031/2014
                         c/w
               MFA.No.201032/2014 (MV)

MFA.No.201031/2014

BETWEEN:
01.     KASTURIBAI W/O DAGADU BIRAJDAR
        AGE: 47 YEARS OCC: HOUSEHOLD WORK

02.     BHIMASHANKAR S/O DAGADU BIRAJDAR
        AGE: 27 YEARS OCC: NIL

03.     VIJAYKUMAR S/O DAGADU BIRAJDAR
        AGE: 25 YEARS OCC: NIL

04.     RAJKUMAR S/O DAGADU BIRAJDAR
        AGE: 23 YEARS OCC: NIL

        ALL ARE R/O: ADARSH NAGAR,
        BIJAPUR.
                                            ... APPELLANTS
       (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:

01.     THE DIVISIONAL CONTROLLER
        APSRTC, HYDARABAD.

                                         ... RESPONDENT
                   (RESPONDENT SERVED)
                                2




       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, PRAYING TO
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD
DATED    21.04.2014   PASSED       BY   THE   MEMBER,   MACT   &
PRESIDING OFFICER, FAST TRACK COURT, AT BIJAPUR IN
MVC.NO.1460/2012.



MFA.NO.201032/2014

BETWEEN:

BABURAO S/O SIDDARAM BIRAJDAR
AGE: 34 YEARS OCC; AGRICUTLURE
R/O: ADHARSH NAGAR,
BIJAPUR.
                                            ... APPELLANT
       (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER
APSRTC, HYDERABAD-500001.
                                                ... RESPONDENT
            (SRI.SRI. S. V. DESHMUKH, ADVOCATE)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, PRAYING TO
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD
DATED    21.04.2014   PASSED       BY   THE   MEMBER,   MACT   &
PRESIDING OFFICER, FAST TRACK COURT, AT BIJAPUR IN
MVC.NO.1461/2012.

       THESE APPEALS BEING HEARD AND RESERVED FOR
JUDGMENT ON 06.01.2022, COMING ON FOR PRONOUNCEMENT
OF   JUDGMENT,   THIS   DAY,   THE      COURT   DELIVERED   THE
FOLLOWING:-
                               3




                        JUDGMENT

These two appeals are arising out of common

judgment passed by the Tribunal in MVC.Nos.1460/2012

and 1461/2012, as they are arising out of same accident.

2. MFA.No.201031/2014 is arising out of

MVC.No.1460/2012, which is a death case.

MFA.No.201032/2014 is arising out of MVC.No.1461/2012,

which is a personally injury case.

3. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4. The allegations are that on 22.03.2012 at

about 10.30 a.m. the deceased Dagadu Birajdar and

injured Baburao were traveling in a auto-rickshaw from

Shikaram to Shrishailam, when their auto-rickshaw was

near Nandi cross, Bus bearing Reg.No.AP-21-Z-385 came

in a rash or negligent manner and dashed against the

auto-rickshaw. As a result of this impact, the deceased

sustained grievous injuries and died, whereas Baburao

Birajdar sustained fracture and other injuries. He was

taken to NRSR Project Hospital Shrishailam for treatment.

Thereafter, he was shifted to City Hospital, Sholapur for

further treatment.

5. The sole respondent appeared and filed written

statement denying that the accident occurred due to rash

or negligent driving by the driver of the Bus in question.

On the other hand, it contended that the accident had

occurred due to rash or negligent driving by the driver of

the auto-rickshaw and in the absence of the owner and

insurer of the auto-rickshaw the petition is not

maintainable. Offcourse, it has denied the other averments

regarding the age, occupation and income of the deceased,

nature of the injuries sustained by the deceased and also

the injured.

6. The Tribunal framed necessary issues and after

due enquiry, based on the documents placed on the

record, especially the FIR and complaint, the Tribunal has

come to the conclusion that the accident occurred due to

the rash or negligent driving by the driver of the offending

Bus in question and at the time of accident, the Bus was

duly covered by a valid insurance and as such the

respondent as owner and insurer of Bus is labile to pay the

compensation.

7. The finding of the Tribunal is not disputed by

the respondent.

8. In MVC.No.1460/2012 the Tribunal has

granted compensation as detailed under:-

              Heads                       Amount
                                             In Rs.
Loss of dependency                     4,68,000/-
Funeral               expenses,          20,000/-
transportation of dead body
and other obsequies etc.,
Towards love and affection               20,000/-
Loss of estate                             20,000/-
Total                                   5,28,000/-

9. The claimants in MFA.No.201031/2014 are the

wife and children of the deceased. They have challenged

the impugned judgment and award on the ground that the

income at the `,4,500/- considered by the Tribunal is on

the lower side and at least it should have been `.6,500/- as

per the Chart of Karnataka Legal Services Authority. The

Tribunal has also not considered the future prospects.

Similarly, the Tribunal has deducted 1/3rd of the income

towards personal and living expenses of the deceased,

whereas, having regard to the fact that there are 04

dependents, it should have been 1/4th. On this basis,

claimants have sought for enhancement of the

compensation.

10. In the claim petition the claimants have

contended that the deceased was an agriculturist and also

running a Kirana Shop and from this he was earning

`.15,000/- per month. But they have not produced any

evidence to prove the said fact. Therefore, the Tribunal

has taken `,4,500/- per month as the notional income of

the deceased. As rightly, submitted by the learned counsel

for the claimants, as per the Chart prepared by the

Karnataka Legal Services Authority, for Lok-Adalath

purpose, which is based on minimum wages, during 2012

the minimum wages should be taken as `.6,500/- per

month. Since, the deceased was 50 years i.e., less than 40

years. As per the Pranay Shethi's case which is

reiterated in Magma's case, 25% of the income is to be

added under the head of future prospects for calculating

the loss of dependency. 25% of `.6,500/- comes to

`.1,625/-. Therefore, `.6,500/- + `.1,625/- comes to

`.8,125/- which should be the basis for calculating the loss

of dependency. Since, the deceased was 50 years of age,

the 13 multiplier taken by the Tribunal is correct.

However, deduction of 1/3rd towards personal and living

expenses, is not correct, since the deceased has left

behind him 04 dependents. Therefore, it is restricted to

1/4th. The remaining 3/4th is to be taken into consideration

for calculating the loss of dependency i.e., `.8,125 x 12 x

13 x ¾ = `.9,50,000/- which should be compensation

under the head of loss of dependency.

11. Since, the claimants are the wife and three

children of the deceased, as held by the Hon'ble Supreme

Court in Pranay Shethi's case, each them are entitled for

compensation in a sum of `..40,000/- under the head of

consortium i.e., loss of spousal consortium and loss of filial

consortium, which comes to `.1,60,000/-. Under the head

of funeral expenses and loss of estate, the claimants are

entitled for `.15,000/- under each heads. Thus, the in all

the claimants are entitled for `.11,40,625/- which is round

off to `.11,40,600/- as against `.05,28,000/- granted by

the Tribunal as detailed below:-

                                Awarded by    Enhanced by
            Heads              the Tribunal    this Court
                                  In Rs.         In Rs.
  Loss of dependency           4,68,000/-     9,50,000
  Funeral        expenses,         20,000/-      15,000/-
  transportation of dead
  body       and     other
  obsequies etc.,
  Towards      love   and          20,000/-          -
  affection
  Loss of estate                   20,000/-     15,000/-
  Towards       loss      of         -         1,60,000/-
  consortium
  Total                        5,28,000/-     11,40,000/-





     12.   Now, coming to         the appeal filed    by the

claimant in MVC.No.1461/2012 i.e., MFA.No.201032/2014.

According to the claimant at the time of accident he was

32 years old and was a agriculturist and getting income of

`.7,500/- per month. As per the impugned judgment and

award the Tribunal has granted compensation in a sum of

`.62,000/- as detailed below:-

                Heads                         Amount
                                                in
Pain and suffering                            25,000/-
Medical Expenses                              13,000/-
Towards conveyance and attendant               8,000/-

charges and other incidental charges Loss of income during period of 9,000/- treatment Towards unhappiness and 10,000/-

inconvenience
Total                                         65,000/-
                                        (Wrongly shown as
                                        62,000/-)

13. The claimant of this appeal has challenged the

impugned judgment and award contending that he

sustained fracture of shaft and other injuries and it has

resulted in disability, but no compensation is granted

under the head of loss of income. The learned counsel for

the claimant argued that at least his disability may be

considered at 7% and calculation made on that basis.

However, as rightly observed and held by the Tribunal, the

claimant has sustained fracture of shaft and other injuries.

There is no evidence or proof of any disability sustained by

the him. In fact the Doctor who treated the claimant is not

examined and the disability certificate is not produced.

14. Moreover, there is also no evidence placed on

record, to show that on account of injuries sustained by

him, he is unable to pursue his profession in the same way

as he used to earlier to the accident and there is loss of

income. Therefore, in the absence of any such evidence,

the Tribunal has rightly rejected his claim for loss of future

income. Therefore, I am of the considered opinion that

claimant is not entitled for any compensation under the

head of loss of future income in the absence of any

disability having sustained by the claimant.

15. Based on the medical bills, the Tribunal has

granted compensation in a sum of `,13,000/- which is

correct. Taking into consideration the fact that the initially

the claimant was admitted to a local Hospital and

thereafter, he was taken to City Hospital, Sholapur and he

was inpatient from 23.03.2012 to 26.03.2012 and was also

undergone operation, the Tribunal has granted `.8,000/-

towards conveyance and attendant charges, which appears

to be on the lower side. Therefore, it is enhanced to

`.15,000/-.

16. The Tribunal has granted compensation in a

sum of `.9,000/- per month under the head of loss of

income during the laid up period. The Tribunal has not

stated what is the monthly income it has taken into

consideration. Since, the incident has taken place during

2012, as per the Chart prepared by Karnataka Legal

Services Authority, for the purpose of Lok-Adalth, the

minimum wages taken into consideration is to be

`.6,500/-. Since, the claimant has sustained fracture of

shaft and other injuries, it could be reasonably to accept

that he was taken treatment for 03 months. Therefore, at

the rate of `.6,500/- for a period of 03 months, he is

entitled for compensation in a sum of `.19,500/- towards

loss of income during the laid up period, instead of

`.9,000/- granted by the Tribunal.

17. However, the Tribunal has granted

compensation of `.25,000/- under the head of pain and

suffering. Having regard to the fact that the claimant has

sustained fracture of shaft and other injuries, it would

reasonable to increase the same to `.40,000/-. The

Tribunal has granted a sum of `.10,000/- under the head

of unhappiness and inconvenience, which should be under

the head of loss of amenities. Looking to the injuries

sustained by the claimant, this compensation is enhanced

to `.25,000/- instead of `.10,000/-. Thus, in all the

claimant is entitled for enhanced compensation of

`.1,12,500/- as against `.62,000/- granted by the Tribunal

as detailed below:-

Awarded Enhanced by by the Heads this Court Tribunal In Rs.

In Rs.

Pain and suffering 25,000/- 40,000/-

Medical Expenses 13,000/- 13,000/-

Towards conveyance and 8,000/- 15,000/- attendant charges and other incidental charges Loss of income during period 9,000/- 19,500/- of treatment Towards unhappiness and 10,000/- 25,000/-

inconvenience
Total                              65,000/-        1,12,500/-
                                  (Wrongly
                                  shown    as
                                  62,000/-)


     18.   In the result, the following;


                         ORDER


     I.    Both the appeals are allowed in part.


     II.   The         judgment           and      award        in

MVC.Nos.1460/2012 and 1461/2012 passed by

the MACT Fast Tract Court Bijapur, are

modified.

III. In MFA.No.201031/2014, the compensation is

enhanced to `.11,40,000/- as against

`.5,28,000/- as granted by the Tribunal.

IV. In MFA.No.201032/2014, the compensation is

enhanced to `.1,12,500/- as against `.62,000/-

as granted by the Tribunal.

V. The respondent is directed to pay the

compensation with interest at 6% p.a. from

the date of petition till its realization, minus