Divisional Controller vs Smt Meenakshi
2022 Latest Caselaw 9472 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF JUNE, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

     MISCELLANEOUS FIRST APPEAL NO.1033 OF 2013 (MV)
                          C/W
              MFA CROB NO.155/2013(MV-D)

IN MFA NO.1033/2013

BETWEEN:

DIVISIONAL CONTROLLER
K.S.R.T.C
MANGALORE DIVISION,
BEJAI, MANGALORE - 575 001.
REP. BY CHIEF LAW OFFICER
K.S.R.T.C, CENTRAL OFFICE,
K.H.ROAD, SHANTHINAGAR,
BENGALURU - 560 027.
                                           ... APPELLANT
(BY SRI.D.VIJAYAKUMAR, ADVOCATE)

AND:

1.     SMT.MEENAKSHI
       W/O LATE KOGGA NAIKA,
       AGED ABOUT 63 YEARS,
2.     DAYANANDA
       S/O LATE KOGGA NAIKA
       AGED ABOUT 40 YEARS,

BOTH ARE R/AT BEHIND
S.V.S SCHOOL, PANEMANGALORE,
BANTWAL TALUK,
DAKSHINA KANNADA DIST. - 574211.
                                         ... RESPONDENTS
(BY SRI. NATARAJ BALLAL, ADVOCATE FOR R1 & R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE
                               2


JUDGMENT AND AWARD DATED 15.09.2012 PASSED IN MVC
NO.1675/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC,
MEMBER, MACT-BANTWAL, D.K., AWARDING A COMPENSATION
OF RS.11,96,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.

IN MFA CROB NO.155/2013

BETWEEN:

1.     SMT.MEENAKSHI
       AGED ABOUT 63 YEARS,
       W/O LATE KOGGA NAIKA,
2.     DAYANANDA
       AGED ABOUT 40 YEARS,
       S/O KOGGA NAIKA

BOTH RESIDING BEHIND
S.V.S SCHOOL, PANEMANGALORE,
BANTWAL TALUK - 574211.
                                      ...CROSS OBJECTORS
(BY SRI. NATARAJ BALLAL, ADVOCATE)

AND:

DIVISIONAL CONTROLLER
K.S.R.T.C
MANGALORE DIVISION,
BEJAI, MANGALORE
REP. BY CHIEF LAW OFFICER
K.S.R.T.C, CENTRAL OFFICE,
K.H.ROAD, SHANTHINAGAR,
BENGALURU - 560 027.
                                          ... RESPONDENT
(BY SRI.D. VIJAYAKUMAR, ADVOCATE)

      THIS MFA CROB IN MFA NO.1033/2013 IS FILED UNDER
ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND
AWARD DATED 15.09.2012 PASSED IN MVC NO.1675/2008 ON
THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MEMBER, MACT-9,
BANTWAL, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING     ENHANCEMENT     OF
COMPENSATION.

      THIS APPEAL AND MFA CROB COMING ON FOR HEARING,
THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
                                3


                       JUDGMENT

Heard Sri.D.Vijayakumar, learned counsel appearing

for the appellant/insurer and Sri.Nataraj Ballal, learned

counsel appearing for respondents/claimants.

2. The appeal and cross objection are arising out of

judgment and award dated 15.09.2012 passed in MVC

No.1675/2008 on the file of Motor Accident Claims Tribunal

and in the Court of Senior Civil Judge and JMFC, Bantwal,

D.K., (for short, hereinafter referred to as 'Tribunal').

3. The claim petition filed by the dependents of

deceased Harish Naik was allowed in part awarding

compensation of Rs.11,96,000/- along with interest at 6%

p.a. The insurer in an appeal challenges the quantum.

Liability is admitted. The claimants/cross objectors have

filed cross objection seeking enhancement of compensation.

4. The learned counsel for the appellant/insurer

would contend that the Tribunal has erred in taking the

multiplier based on the age of deceased, who was aged 34

years at the time of the accident. The learned counsel for

the appellant would submit that the mother was aged 61

years, as such the age of the mother should have been the

basis to choose the multiplier. The learned counsel for the

appellant would also submit that Ex.P13-salary certificate

produced by the claimants would reveal that the dearness

allowance is added twice. Rs.1,338/- is added to the

arrears of dearness allowance payable to the deceased, as

such, the Tribunal should not have taken the income of the

deceased at Rs.7,514/-, should have been taken the

income of the deceased at Rs.6,176/-. The learned counsel

for the appellant would also submit that, if at all, the

dearness allowance of the appellant was more than

Rs.2,442/- same would have been reflected in the second

column of the salary certificate.

5. The learned counsel for the appellant again

inviting the attention of the Court to the cross-examination

to the Accounts Officer who was examined on behalf of the

claimants, submits that a specific suggestion is put stating

that Ex.P13-salary certificate is produced just to help the

claimant.

6. The learned counsel for the claimants submits that

the salary certificate produced at Ex.P13 is duly proved by

examining the Accounts Officer and the reference made by

the learned counsel for the appellant in respect of amount

of Rs.1,338/- which is alleged to be the arrears of dearness

allowance is infact not the dearness allowance and it is part

salary under some other head which is not mentioned in the

salary certificate.

7. The learned counsel for the claimants/cross

objectors would submit that the compensation awarded by

the Tribunal is on the lower side. The learned counsel would

also submit that the compensation under non pecuniary

heads awarded by the Tribunal is on the lower side and it is

not in conformity with the ratio laid down in the case of

National Insurance Company Limited Vs. Pranay

Sethi and others ((2017)16 SCC 680).

8. This Court has considered the rival contentions.

The contention of the learned counsel for the

appellant/insurer that salary certificate at Ex.P13 is

concocted cannot be accepted. The contention that the age

of the claimant mother is to be taken into account while

deciding the multiplier is not applicable in view of the law

laid down in the case of Pranay Sethi. It is forthcoming

from the record that the figure of Rs.1,338/- is found in

Ex.P13-salary certificate and the printed matter "others" is

struck off and before the word 'DA' is added. The learned

counsel for the appellant would submit that it is added as

arrears of dearness allowance payable to the deceased

employee. However, this Court finds that there is nothing

on record to show that the arrears of dearness allowance

payable to the deceased employee. The cross-examination

suggested to PW3 does not indicate that Rs.1,338/-

mentioned in Ex.P13-salary certificate is arrears of

dearness allowance. Under these circumstances, this Court

is not inclined to accept the contention that Rs.1,338/- is

arrears of dearness allowance as contended by the insurer.

9. As far as learned counsel for the claimants is

concerned, this Court has noticed that the award of

compensation under the non pecuniary heads is not in

conformity with the ratio laid down in the case of Pranay

Sethi. There are two dependants. Each of the dependents

is entitled to consortium of Rs.40,000/-. Rs.15,000/- is to

be awarded towards loss of estate and Rs.15,000/- towards

funeral expenses. Thus, compensation has to be enhanced.

Accordingly, appeal filed by the insurer is dismissed and

cross objection filed by the claimants is allowed in part as

indicated above.

10. In terms of the order dated 15.10.2015, this

Court has condoned the delay of 315 days in filing the cross

objection subject to the condition that cross objectors are

not entitled to interest in the enhancement of

compensation. The insurer is not liable to pay interest for

enhancement of compensation.

11. The amount in deposit be transferred to the

jurisdictional Tribunal.

12. It is also noticed that in terms of the interim

order dated 12.07.2013, this Court has directed the insurer

to deposit 50% of the award amount before the

jurisdictional Tribunal. However, demand draft bearing

No.437106 dated 19.08.2013 drawn on Vijaya Bank

covering 50% of the amount was drawn in the name of

Registrar General, High Court of Karnataka for

Rs.7,38,989/-. Since the interim order directed the insurer

to deposit the amount before the jurisdictional Tribunal the

demand draft drawn in the name of Registrar General, High

Court of Karnataka was not encashed. Now, it is noticed

that the demand draft is very much in the file and the same

has spent its life.

Registry to return the demand draft to the insurer-

KSRTC to enable the KSRTC to collect the amount from the

concerned bank. It is expected that the bank will honour

the request of KSRTC for refund of the amount specified in

the demand draft.

Sd/-

JUDGE

UN