Karnataka High Court

Smt Sunitha vs The Managing Director on 11 July, 2022

Bench: Hanchate Sanjeevkumarpresided Byhsj

                        1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JULY, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

           M.F.A.NO.6119/2017 (MV-D)

BETWEEN:

1.   SMT. SUNITHA
     W/O LATE SHEKHAR,
     AGED ABOUT 36 YEARS,

2.   MAST. PRASHANTH M.S.
     S/O LATE SHEKHAR,
     AGED ABOUT 18 YEARS,

3.   MAST. ABHISHEK M.S.,
     S/O LATE SHEKHAR,
     AGED ABOUT 16 YEARS,

4.   SMT. CHIKKAMMA,
     W/O LATE RAJANNA,
     AGED ABOUT 59 YEARS,

APPELLANT NO.3 MINORS,
REP. BY NATURAL GUARDIAN MOTHER
SMT. SUNITHA i.e., APPELLANT NO.1

ALL ARE R/AT MUDUGERE VILLAGE,
MALURU HOBLI, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
                                      ... APPELLANTS

(BY SRI RAJU S., ADVOCATE FOR
    SRI K.P.BHUVAN, ADVOCATE)
                                 2


AND:

THE MANAGING DIRECTOR,
KSRTC, KENGAL HANUMANTHAIAH ROAD,
SHANTHINAGARA,
BENGALURU-560027.
                                                 ... RESPONDENT

(BY SRI D.VIJAYAKUMAR, ADVOCATE)


        THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT      AGAINST       THE     JUDGMENT          AND      AWARD
DATED:01.06.2017 PASSED IN MVC NO.121/2016 ON THE
FILE OF THE SENIOR CIVIL JUDGE & JMFC., ADDITIONAL
MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, PARLTY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND
ETC.,


        THIS M.F.A. COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

The present appeal is filed by the

appellants/claimants challenging the judgment and

award dated 01.06.2017 in MVC.No.121/2016 passed

by Senior Civil Judge & JMFC & Addl. MACT,

Channapattana.

2. Brief facts of the case are as under:

On 23.02.2016 at 9:00 p.m., when the deceased

Shekhar was standing on left side of road, near

Bellakere Gate Arch. Bengaluru-Mysuru Road, at that

time the driver of K.S.R.T.C bus bearing No.KA-09-F-

4048 came from Bengaluru towards Mysuru side in a

rash and negligent manner and dashed against the

deceased Shekhar, as a result he fell down and

sustained grievous injuries and immediately he was

shifted to Government hospital. Channapatna for

treatment and after first aid when he was shifted to

the NIMHANS Hospital Bangalore, for better

treatment, but he succumbed to the injuries on the

way to the hospital.

3. The claim petition was filed under Section

166 of MV Act by the appellants/claimants who are

wife, children and mother of the deceased seeking for

compensation. The Tribunal has partly allowed the

claim petition and awarded compensation of

Rs.14,67,500/- with interest at 6% p.a., from the date

of petition till the date of deposit. Being aggrieved by

insufficiency of compensation, the present appeal is

filed before this Court.

4. Learned counsel for the

appellants/claimants submitted that the claimants

being wife, two children and mother have lost the

bread earner of the family, but the Tribunal has not

awarded compensation adequately. Hence, submitted

that injustice has been caused by the Tribunal. The

deceased was running a small hotel and licence has

been produced for running the same. Therefore,

nature of work of the deceased is proved and

accordingly, notional income at Rs.12,000/- per

month ought to have been taken, but the Tribunal has

considered less income and awarded lesser amount of

compensation. Therefore, prays for enhancement of

compensation.

5. Further submitted that under the head loss

of consortium also the Tribunal has not awarded

adequate compensation as per the principles of law

laid down by the Hon'ble Apex Court in the case of

National Insurance Co. Ltd. Vs. Pranay Sethi

reported in (2017) 16 SCC 680 and also as per the

decision of this Court in the case of Magma General

Insurance Co. Limited v. Nanu Ram & Others

reported in 2018 ACJ 2782. Therefore, prays for

enhancement of compensation.

6. Further submitted that the deceased was

aged about 40 years as on the date of the accident.

Therefore, appropriate multiplier according to the age

of the appellant and income of the appellant towards

loss of future prospects in life can be considered.

Thus, submitted that the appellants/claimants are

entitled for enhancement of compensation.

7. On the other hand, learned counsel for

respondent - KSRTC submitted that the age of the

deceased is 48 years as revealed during the course of

cross-examination of P.W.1 who is the wife of the

deceased. Therefore, submitted that the age of the

deceased may be considered as 48 years only for all

purposes. Therefore, submitted that the appeal is

devoid of merits. Hence, prays to dismiss the appeal.

8. The Tribunal has considered the notional

income at Rs.7,000/- per month and considering the

age of the deceased as 40 years, 1/4th of income was

deducted towards personal expenses of the deceased.

Accordingly, compensation of Rs.14,17,500/- was

awarded by the Tribunal under the head "loss of

dependency".

9. The Tribunal has awarded the

compensation under various heads as follows:

 Heads of Compensation                   Amount
Loss of dependency                          14,17,500.00
Transportation of the dead
                                                15,000.00
body and funeral expenses
Loss of estate                                  15,000.00
Loss Consortium to the 1st
                                                20,000.00
petitioner
            Total                           14,67,500.00

10. The deceased was running a small hotel. In

order to prove the said fact, regarding nature of work

of the deceased, the appellants/claimants have

produced Ex.P.7- General Licence issued by the

Panchayath Development Officer, Mudagere Grama

Panchayath. Even though, the deceased was running a

hotel, but the appellants have not produced the proof

of income. Under these circumstances, the income has

to be assessed on some guess work considering the

nature of business of the deceased. Even though, the

appellants have contended that the deceased was

earning income of Rs.20,000/- per month, but for this

also, there is no proof. Hence, the notional income is

to be considered on some guess work. Accordingly,

income of Rs.12,000/- per month is taken into

consideration. Therefore, in this regard, the notional

income adopted by the Tribunal is not correct.

11. Learned counsel for the respondent

submitted that in the absence of proof of income and

by just considering the nature of work, the income at

Rs.12,000/- per month cannot be taken into

consideration. Hence, prays to consider the notional

income at Rs.9,500/- per month as per the Notional

Income Chart recognized by the Karnataka State Legal

Service Authority. Therefore, learned counsel for the

respondent oppose to consider the notional income at

Rs.12,000/- per month.

12. Ex.7 is the General Licence issued by the

Grama Panchayath which prove the fact that the

deceased was running a small hotel. Even though, for

previous years, licence were not produced, but that

cannot be a ground to reject the avocation of the

deceased. It is proved that the deceased was running

a small hotel. Therefore, notional income taken at

Rs.12,000/- per moth is correct. Hence, Rs.400/- per

day is taken into consideration as any one in the

panchayath area by doing petty hotel business as in

the present case atleast earns Rs.400/- per day.

Therefore, considering these aspects, the notional

income at Rs.12,000/- per month is taken into

consideration. The Notional Income Chart recognized

by the Karnataka State Legal Service Authority is only

the guidelines, but in the absence of proof of income,

income is also to be considered, considering the

avocation of the injured/deceased as in the present

case.

13. The deceased was 40 years and 3 months

as on the date of the accident. Ex.P8 is the ration card

and Ex.P.10 is the Adhaar Card which shows the age

of the appellant as 37 years. The deceased died in the

accident on 23.02.2016. Therefore, according to these

documents, the deceased was aged 40 years and 3

months as on the date of the accident. The Tribunal

had considered the age of the deceased as 40 years

and adopted the multiplier of 15. The learned counsel

for the respondent submitted that the deceased was

48 years as his wife while examining as P.W.1 had

admitted the age of the deceased as 48 years.

Therefore, submitted that the age of the deceased is

48 years considering the admission made by PW.1 in

her cross-examination. It is true that during the

course of cross-examination, P.W.1 admitted to the

suggestion put by the learned counsel for the

respondent-KSRTC that the deceased was aged 48

years. Therefore, in this regard, age mentioned in

Exs.P.8 and P.10 is on one side and admission given

by P.W.1 during the course of cross examination on

the other side. The admission given by P.W.1 in

respect of age of the deceased as 48 years, it is not in

the way of examination-in-chief in the evidence, but it

is revealed during the course of cross-examination

when suggestion was put to P.W.1 during the course

of cross-examination. Even if it is considered to that

admission, but it can be categorized as stray

admission and only on the basis of stray admission,

the age of the deceased cannot be held at 48 years.

Even though, the respondent has contended that it is

a concrete admission, but it is revealed during the

course of cross-examination that too when the

suggestion was made and it was answered as 48

years. Therefore, it cannot be termed as concrete

admission, but only stray admission. P.W.1 is widow

and rustic village woman. Hence, background of

witness also can be considered while appreciating oral

evidences. Also the evidence of women residing in

rustic village and city between educated and

uneducated is also to be considered. Therefore, under

these circumstances, considering the cross-

examination of P.W.1, it can be categorized as it

would be stray admission only considering the

background of P.W.1.

14. Therefore, considering these aspects when

some other documents are produced i.e., ration card

and adhaar card, it is proved that the deceased was

aged 40 years and 3 months and it carries more

weightage compared to stray admission made in the

cross-examination. Therefore, age of the deceased is

taken as 40 years and 3 months. This Court in the

case of Shrilatha and Others Vs., Manjunatha

Virupakshappa Purad and Another reported in

2019 ACJ 2013, has held that when the deceased

was aged 40 years and 5 months, it is considered for

choosing the multiplier in the range of age comes

within 36 to 40 years. Therefore, in the present case,

age of the deceased comes within the range of 36 to

40 years and the multiplier of "15" is adopted. As per

the principles of law laid down by the Hon'ble Apex

Court in the case of Pranay Sethi's case (stated

supra) at Para No.59.4, income towards loss of future

prospects is to be added. It is stated that when the

deceased is below the age of 40 years, then 40% of

income is to be added and if the deceased is found to

be between the range of 40 to 50 years, then 25% is

to be added. In the present case, as discussed above,

the deceased was 40 years and 3 months, certainly, it

cannot be considered that the deceased was below the

age of 40 years. Accordingly, 25% of income is to be

added towards loss of future prospects in life and 1/4th

of income of the deceased is to be deducted towards

personal expenses and remaining 3/4th of the income

is the contribution towards the family. Therefore, "loss

of dependency" is calculated and quantified as follows:

Rs.12,000/- + 25%= Rs.15,000/-

Rs.15,000/- x 3/4 x 15 x 12 =Rs.20,25,000/-

Accordingly, compensation of Rs.20,25,000/- is

awarded under the head "loss of dependency".

15. The compensation of Rs.15,000/- awarded

by the Tribunal towards "transportation of dead body

and funeral expenses" is correct and also awarding of

Rs.15,000/- towards "loss of estate" is also correct.

Hence, there is no need to make interference under

these heads.

16. Further by following the principles of law

laid down by the Hon'ble Apex Court in Pranay

Sethi's case and also following the decision of this

Court in the case of Magma General Insurance Co.

Limited (stated supra), the claimants being wife, two

children and mother are entitled to compensation

under the head loss of parental consortium. Hence,

the claimants are entitled to Rs.40,000/- each under

the head loss of consortium. Therefore, considering

their dependency compensation of Rs.1,60,000/- is

awarded under the head loss of consortium.

17. Thus, the appellant/claimant is entitled to

the compensation as follows:

 Heads of Compensation                       Amount
Loss of dependency                              20,25,000.00
Transportation of the dead
                                                     15,000.00
body and funeral expenses
Loss of estate                                       15,000.00
Loss Consortium to the
                                                    1,60,000.00
claimants
            Total                               22,15,000.00




     18.   The        Tribunal     has        awarded      the

compensation      of       Rs.14,67,500/-,          but    the

appellants/claimants       are      entitled        to    total

compensation     of     Rs.22,15,000/-.         Hence,     the

appellants/claimants      are     entitled     to    enhanced

compensation of Rs.7,47,500/-            (Rs.22,15,000/- -

Rs.14,67,500/-). Therefore, the appellants/claimants

are entitled to enhanced compensation of

Rs.7,47,500/- along with interest at the rate of 6%

per annum from the date of petition till the date of

realization.

19. Accordingly, I pass the following :

ORDER

Appeal is allowed-in-part.

The impugned judgment and award dated

01.06.2017 in MVC.No.121/2016 passed by Senior

Civil Judge & JMFC & Addl. MACT, Channapattana, is

modified to the extent that the appellants/claimants