Karnataka High Court

Smt Kalpana vs Divisional Controller on 15 June, 2022

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF JUNE 2022

                             BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                 MFA No.6828 OF 2019(MV)
                           C/W
                 MFA No.1256 OF 2019(MV)

IN MFA 6828/2019
BETWEEN:

1.     Smt. Kalpana,
       W/o Dharmashetty,
       Aged about 37 years.

2.     Sri. Vinay M D.,
       S/o Late Dharmashetty,
       Aged about 14 years.

3.     Sri. Vikas M D,
       S/o Late Dharmashetty,
       Aged about 12 years.

       Appellant Nos.2 & 3 are minors
       Represented by next friend
       Mother 1st appellant

4.     Smt. Rangamma,
       W/o Basavashetty,
       Aged about 62 years.

5.     Sri. Basavashetty,
       S/o Kendashetty,
       Aged about 72 years.

       All are residing at
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       Moodanahalli Village,
       Bagur Hobli,
       Channarayapatna Taluk,
       Hassan District.                 ... Appellants

(By Sri.Shripad V Shastri., Advocate)

AND:

Divisional Controller,
K.S.R.T.C.,
Chamarajanagar Division,
Represented by
Divisional Manager,
K.S.R.T.C. Hassan.                       ... Respondent

(By Sri.K.Nagaraj, Advocate)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 24.09.2018
passed in MVC No.1146/2017 on the file of the 4th
Additional District and Sessions Judge, Hassan District(sit
at Channarayapatna), partly allowing the claim petition for
compensation and seeking enhancement of compensation.

IN MFA 1256/2019
BETWEEN:

The Divisional Controller,
K.S.R.T.C.,
Chamarajanagar Division,
Represented by
Divisional Manager,
K.S.R.T.C. Hassan.
Now through
Chief Law Officer
KSRTC, Bangalore.                             ... Appellant

(By Sri.Nagaraja K., Advocate)
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AND:

1.     Smt. Kalpana,
       W/o Dharmashetty,
       Aged about 36 years.

2.     Sri. Vinay M D.,
       S/o Late Dharmashetty,
       Aged about 13 years.

3.     Sri. Vikas M D,
       S/o Late Dharmashetty,
       Aged about 11 years.

       Respondent Nos.2 & 3 are minors
       Represented by next friend
       Mother 1st Respondent

4.     Smt. Rangamma,
       W/o Basavashetty,
       Aged about 61 years.

5.     Sri. Basavashetty,
       S/o Kendashetty,
       Aged about 71 years.
       All are residing at
       Moodanahalli Village,
       Bagur Hobli,
       Channarayapatna Taluk,
       Hassan District.                   ... Respondents

(Notice to respondents is served but unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 24.09.2018
passed in MVC No.1146/2017 on the file of the 4th
Additional District and Sessions Judge, Hassan District
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awarding compensation of Rs.22,41,000/- with interest
@9% p.a. from the date of petition till realization.

      These MFAs, coming on for admission, this day, this
Court, delivered the following:

                        JUDGMENT

MFA No.6828/2019 is filed by the claimants

whereas MFA No.1256/2019 is filed by the Corporation

under Section 173(1) of the Motor Vehicles Act, (for

short, 'the Act') being aggrieved by the judgment and

award dated 24,09.2018 passed by the MACT, Hassan

in MVC No.1146/2017. Since the challenge is to the

same judgment, both the appeals are clubbed

together, heard and common judgment is being

passed.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.12.2016 at 14.45 hrs on

Channarayapatna - Arasikere road near Moodanahalli

Circle, the deceased Dharmashetty was proceeding on

motorcycle bearing registration No.KA-51/R-9896. At

that time, a KSRTC bus bearing registration No.KA-

10/F-0237 which was being driven 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 at the spot.

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 rash

and negligent riding of the motorcycle by the

deceased himself. 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 got exhibited documents namely Ex.P1 to Ex.P13.

On behalf of respondents, one witness was examined

as RW-1 and no documents were got exhibited. 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.22,41,000/- along with interest at

the rate of 9% p.a. and directed the Corporation to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Sri Nagaraja, the learned counsel for the

Corporation has raised the following contentions:

Firstly, the accident occurred due to the

negligence of the deceased himself. But the Tribunal

has erred in holding that the driver of the bus is

negligent in causing the accident.

Secondly, the Corporation has examined the

driver of the bus as RW-1. He has categorically stated

that the deceased was crossing the road without

following the traffic rules. He suddenly entered the

main road. The driver of the bus tried to avoid the

accident. Since he has entered the Highway from

cross road he was unable to control his vehicle.

Therefore, the accident has occurred only due to the

negligence of the rider of the motorcycle, i.e.,

deceased himself.

Thirdly, it is very clear from the sketch produced

as Ex.P13 that the bus was moving in the main road

and the deceased was coming from the cross road.

When he was entering the main road he has to

observe the traffic coming in the main road. Since he

has suddenly entered the main road he was unable to

control the vehicle and the accident has occurred.

Therefore, it is very clear that the deceased was

negligent in causing the accident.

Fourthly, even in the evidence of RW-1 he has

categorically stated that the deceased had consumed

alcohol and that is the cause for the accident. But the

Tribunal has failed to consider this aspect of the

matter.

Fifthly, even though the claimants have claimed

that deceased was earning Rs.30,000/- per month,

the same is not established by the claimants by

producing documents. Therefore, the Tribunal has

rightly assessed the income of the deceased

notionally.

Sixthly, as per the law laid down by the Hon'ble

Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, the

claimants are entitled to Rs.15,000/- for 'loss of

estate', but the Tribunal has erred in awarding

Rs.75,000/- towards 'loss of estate'.

Seventhly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. Vs. NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled

for compensation of Rs.40,000/- under the head of

'loss of love and affection and consortium'. But the

Tribunal has erred in awarding Rs.2,50,000/- under

the said head instead of Rs.2,00,000/-.

Lastly, in view of the law laid down by a Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters

disposed of on 24.8.2020), the rate of interest

awarded by the Tribunal at 9% p.a. is on the higher

side. Hence, he sought for allowing of the appeal filed

by the Insurance Company.

7. On the other hand, Sri Shripad V.Shastry,

learned counsel appearing for the claimants has raised

the following contentions:

Firstly, the accident occurred due to rash and

negligent driving of the driver of the bus. At that time

the claimant had crossed almost 60% of the road and

the driver of the bus had come to extreme right side

and dashed against the deceased. Due to the impact,

the deceased sustained grievous injuries and

succumbed to the injuries. It is very clear from

Ex.P13 - Sketch that the driver of the bus was

negligent in causing the accident.

Secondly, even though RW-1 the driver of the

bus has deposed that the deceased had consumed

alcohol, it is not proved from the medical records.

The police have registered FIR against the driver of

the bus and they have filed charge sheet. Considering

all these aspects of the mater the Tribunal has rightly

held that the driver of the bus was negligent in

causing the accident.

Thirdly, claimants claim that the deceased was

earning Rs.30,000/-. But the Tribunal is not justified

in taking the monthly income of the deceased as only

Rs.9,000/-.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal filed by

the claimants.

8. Heard the learned counsel for the parties.

Perused the judgment and award and original records.

9. It is the case of the claimants that on

16.12.2016 at 14.45 hrs on Channarayapatna -

Arasikere road near Moodanahalli Circle, the deceased

Dharmashetty was proceeding on motorcycle bearing

registration No.KA-51/R-9896. At that time, a KSRTC

bus bearing registration No.KA-10/F-0237 which was

being driven 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 at the spot. To prove their

case, claimants have examined claimant No.1 as

PW-1. She has reiterated the averments made in the

claim petition and got marked Exs. P1 to P13. The

respondent has examined the driver of the bus. He

has deposed that he was riding the bus after following

all the traffic rules. The deceased was crossing the

road without following the traffic rules and he has

entered the main road without looking to the traffic

coming in the main road. He further deposed that the

deceased was riding the vehicle by consuming alcohol.

In the postmortem report produced as Ex.P3 there is

no records relating to consumption of alcohol by the

deceased. It is also clear from Ex.P13 - rough sketch

that the bus was proceeding from Channarayapatna

towards Arasikere on National Highway, the deceased

was crossing the highway from Kundur village to

Bagur. It appears that when he has crossed the

middle of the road the driver of the bus has come

extreme right side and dashed against the motorcycle.

Even in his evidence he has not deposed that to avoid

the accident he has come to right side of the road.

Considering the sketch - Ex.P13 and considering the

FIR Ex.P1, complaint - Ex.P2, charge sheet - Ex.P4,

the Tribunal has rightly answered issue No.1 in the

affirmative and held that the driver of the bus is

negligent in causing the accident.

Re.quantum:

10. The claimants claim that deceased was

earning Rs.30,000/- per month. But they have not

produced any documents to prove the income of the

deceased. In the absence of proof of income, the

notional income has to be assessed. As per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2016, the notional income of the deceased has to

be taken at Rs.9,500/- p.m. To the aforesaid income,

the Tribunal has rightly considered addition of 40%.

Thus, the monthly income comes to Rs.13,300/-.

Since there are 5 dependents, the Tribunal has rightly

deducted 1/4th of the income of the deceased towards

personal expenses and remaining amount, i.e,

Rs.9,975/- has to be taken as his contribution to the

family. The deceased was aged about 36 years at the

time of the accident and multiplier applicable to his

age group is '15'. Thus, the claimants are entitled to

compensation of Rs.17,95,500/- (Rs.9,975*12*15) on

account of 'loss of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'. Claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2 and 3, children

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of parental

consortium' and claimant Nos.4 and 5, parents of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of filial consortium' .

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under           Amount in
           different Heads             (Rs.)
       Loss of dependency             17,95,500
       Funeral expenses                  15,000
       Loss of estate                    15,000
       Loss of spousal                   40,000
       consortium
       Loss of Parental                    80,000
       consortium
       Loss of Filial consortium          80,000
                       Total          20,25,500

11. In the result, the appeals are allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.20,25,500/- as against

Rs.22,41,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in the case of JOYEETA BOSE (supra),

the rate of interest awarded by the Tribunal is scaled

down from 9% p.a. to 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the