Karnataka High Court

Smt. Mumtaj Begum vs The Managing Director on 15 March, 2022

Bench: J.M.Khazi

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF MARCH, 2022

                          BEFORE

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

                 M.F.A.NO.2072/2016 (MV)
BETWEEN:

1.     SMT. MUMTAJ BEGUM
       W/O LATE DILEEPA
       AGED ABOUT 40 YEARS,

2.     MR S D NADEEM
       S/O LATE DILEEPA
       AGED ABOUT 18 YEARS,

3.     MASTER S D ARIF
       S/O LATE DILEEPA,
       AGED ABOUT 12 YEARS,

       APPELLANT NO.3 SINCE MINOR
       REPRESENTED BY HIS MOTHER AND
       NATURAL GUARDIAN 1ST APPELLANT
       SMT. MUMTAJ BEGUM.

     ALL ARE RESIDING AT NO.467,
     HEBBAGODI, CHANDAPURA CIRCLE,
     MUNIVENKATAMMA HOUSE TO
     SRINIVASA CINEMA TO KERE KATTE AREA,
     BENGALURU - 560 158
                                       ... APPELLANTS
(BY SMT. SREEVIDYA G.K., ADVOCATE FOR
    SRI. T.N.VISHWANATHA, ADVOCATE)

AND:

1.     THE MANAGING DIRECTOR
       K S R T C CENTRAL OFFICES
                            2


     SHANTHI NAGAR, DOUBLE ROAD,
     BENGALURU - 560 027,
     (RC OWNER OF KSRTC BUS BEARING
     REGN NO.KA-40/F-837)

2.   MOHAMMED RAFIQ
     S/O SHARFUDDIN SAB,
     MAJOR, PROP:SAMFRARS
     ENTERPRISES, NO.152, 2ND CROSS,
     VIDYANAGAR, BOMMASANDRA,
     OPP. SKF BEARING FACTORY,
     BENGALURU - 560 099

3.   BHARATHI AXA GENERAL
     INSURANCE CO. LTD., NO.30,
     PRIDE QUADRA, 3RD FLOOR,
     BELLARY ROAD, HEBBAL,
     BENGALURU - 560 024
                                        ...RESPONDENTS
(SRI. SHWETHA ANAND, ADVOCATE FOR R1;
 SRI. A.N.KRISHNA SWAMY, ADVOCATE R3;
 R2 SERVED & UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
CALL FOR RECORDS IN M.V.C.NO.146/2014 AND THE IMPUGNED
JUDGMENT AND AWARD DARTED 22.07.2015 PASSED IN
M.V.C.NO.146/2014 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU
(SCCH-8) BE MODIFIED BY GRANTING COMPENSATION AS
CLAIMED IN THE CLAIM PETITION AND THIS MISCELLANEOUS
FIRST APPEAL MAY BE ALLOWED WITH COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                    3


                        JUDGMENT

Though this appeal is posted for admission, with the

consent of learned counsel for both the parties the same is

taken up for final disposal.

2. This is petitioners appeal for enhancement.

3. For sake of convenience the parties are referred to

by their rank before the Tribunal.

4. FACTS: Petitioners are the wife and sons of deceased

Dileepa. It is their case that on 12.09.2013 at about 2.15 a.m,

deceased Dilipa along with Begum Bee and driver were

proceeding in car bearing registration No. KA 51/MB 6524 from

Ballari to Bengaluru. It was driven by driver Chandrappa. When

the vehicle reached Ganna Nayakanahalli Gate on State Highway

NH-19, driver of a KSRTC bus bearing registration No.KA 40/F

837 (hereinafter referred to as offending vehicle), came from the

opposite side in a rash or negligent manner and dashed against

the car. As a result of the accident, the car turned turtle and all

the occupants died on the spot suffering grevious injuries.

4.1 Petitioners being the wife and sons of the deceased

were dependent on his earnings, they are entitled for the

compensation. At the time of accident, deceased was aged 43

years. He was running a grocery shop and earning Rs.1,00,000/-

p.m. Respondent No.1 being the owner of the offending vehicle

is liable to pay the compensation.

5. Respondent No.1 though admit that it is the owner of

the offending vehicle in question and on the date of accident, the

vehicle was plying from Bengaluru to Sindhanur via Hiriyur and

accident occurred at Gunna Nayakanahalli Gate, it has denied

that the driver of the offending vehicle was responsible for the

accident. On the other hand, respondent No.1 has contended

that the accident occurred due to rash or negligent driving by

the driver of the car in question. It has denied the age,

occupation, income of the deceased. It has also contended that

the owner and insurer of the car is also a necessary party.

5.1 In view of the specific defence taken by respondent

No.1, petitioners have subsequently impleaded the owner and

insurer of car bearing registration No.KA 51/MB 6524.

6. After due service of notice they have appeared.

7. Respondent No.2 has filed the written statement

denying that the accident occurred due to the rash or negligent

driving by the driver of the car in question. It is the driver of the

offending vehicle in question who is responsible for the accident

and as such respondent No.1 is liable to pay the compensation

and sought for dismissal of the petition against him.

8. Respondent No.3 being the insurer of the car has

also filed written statement admitting that the car in question

was covered by a valid policy issued by it. However, since the

driver of the offending vehicle was the root cause for the

accident, it is respondent No.1 who is liable to pay the

compensation and sought for dismissal of petition against it.

9. MVC.No.146/2014 was clubbed with

MVC.No.6176/2013 which was a petition arising out of the same

accident and common evidence has been led in.

10. On behalf of petitioners, two witnesses are examined

as PWs-1 and 2 and Ex.P1 to P30 are marked on their behalf. On

the other hand the driver of the offending vehicle is examined as

RW-1 and one witness on behalf of respondent No.3 is examined

as RW-2. No documents are marked on behalf of respondents.

11. Vide the impugned judgment and award the Tribunal

has partly allowed the petition and granted compensation in a

sum of Rs.38,05,720/- and fastened the liability on respondent

No.1. The details of the compensation granted are as below:

                  Heads                    Amount
                                            In Rs.
      Loss of dependency                    34,50,720
      Loss of consortium                      1,00,000
      Loss of love and affection and          2,20,000
      care taker
      Loss of estate                            10,000
      Transportation of dead body               25,000
      and funeral expenses
      TOTAL                                38,05,720

12. Respondent No.1 has not challenged the impugned

judgment and award.

13. Heard the learned counsel for both the parties and

perused the records.

14. Through this appeal, petitioners are seeking

enhancement of the compensation contending that the Tribunal

has erred in taking the income of the deceased as Rs.3,59,720/-

p.a. as against Rs.4,90,000/-. The Tribunal has erred in not

granting compensation under the head future prospects as held

by the Hon'ble Supreme Court in Sarala Verma's case. The

interest awarded at the rate of 6% p.a. is on the lower side.

15. In view of the specific grounds urged by the

petitioners, it is to be examined whether the compensation

granted by the Tribunal is just and reasonable or it calls for

interference by this Court.

16. Since respondent No.1 has not challenged the

findings of the Tribunal that accident occurred due to the rash or

negligent driving by the driver of offending vehicle has attained

finality. Therefore, the only issue involved is to determine

whether the compensation granted is just and reasonable.

17. Loss of dependency: The date of accident is

12.09.2013. Based on the post mortem report, the age of the

deceased is held to be 43 years, which is also the case of the

petitioners. Petitioners have established that the deceased was

running a grocery shop. On the basis of the income tax returns

filed by the petitioners, after deducting the income tax payable,

the Tribunal has rightly held the annual income of the deceased

as Rs.3,69,720/-. I find no reason to interfere with the said

conclusion arrived at by the Tribunal. Since the deceased was

aged 43 years, the multiplier 14 chosen by the Tribunal is

correct. Petitioners being wife and children of the deceased,

three in number, the Tribunal has rightly held that 1/3rd of the

income of the deceased is to be deducted towards his personal

and living expenses. By taking the annual income of the

deceased as Rs.3,69,720/- by deducting 1/3rd and taking 14 as

the multiplier, the Tribunal has arrived at loss of dependency in

a sum of Rs.34,50,720/-.

18. However, the Tribunal has not granted compensation

under the head loss of future prospects, as required by the

decision in Sarala Verma's case. Since the deceased was aged

43 years and was doing private business, 25% of his income is

to be added towards loss of future prospects. 25% of 3,69,720

comes to Rs.92,430. Therefore, the loss of annual income is to

be taken as Rs.3,69,720 + 92,430 which comes to Rs.4,62,150/.

Out of this 1/3rd is to be deducted towards the personal and

living expenses of the deceased and 2/3 is to be taken into

consideration for calculating the loss of dependency i.e.,

4,62,150 x 14 x 2/3rd = Rs.43,13,400/-. Thus, under the head

loss of dependency the petitioners are entitled for compensation

in a sum of Rs,43,13,400/- as against Rs.34,50,720/- granted by

the Tribunal.

19. Loss of consortium: Since the petitioners are the wife

and two sons of the deceased, under the head loss of

consortium, they are entitled for compensation in a sum of

Rs.40,000/- each as per the decision of the Pranay Seti's case.

However, the Tribunal has granted compensation in a sum of

Rs.1,00,000/- under the head loss of consortium to the

petitioner No.1 and Rs.2,20,000/- under the head loss of love

and affection and care taker two petitioners Nos.2 and 3.

Therefore, it is required to be restricted to Rs.1,20,000 under

the head loss of spousal consortium to petitioner No.1 and filial

consortium to petitioners Nos.2 and 3 as against Rs.3,20,000/-

granted by the Tribunal.

20. Funeral expenses: The Tribunal has granted

compensation in a sum of Rs.20,000/- under the head

transportation of dead body and funeral expenses. However, as

per the Pranay Seti's case, when substantial compensation is

granted under the head loss of dependency, under the

conventional head of funeral expenses a sum of Rs.15,000/- is to

be granted which includes transportation expenses also.

Therefore, under this head Rs.15,000/- is granted as against

Rs.25,000/- granted by the Tribunal.

21. Loss of estate: The Tribunal has granted

compensation in a sum of Rs.10,000/- under this head.

However, as per the decision of the Pranay Seti's case,

petitioners are entitled for compensation in a sum of Rs.15,000/-

under this head and therefore, the same is increased to

Rs.15,000/- as against Rs.10,000/- granted by the Tribunal.

22. Thus, in all petitioners are entitled for compensation

in a sum of Rs.44,63,400/- as against Rs.38,05,720/- granted by

the Tribunal, as detailed below:

               Heads             Amount granted         Amount granted
                                 by the Tribunal         by this Court
                                      In Rs.                In Rs.
      Loss of dependency                34,50,720              43,13,400
      Loss of consortium                     1,00,000               40,000



     Towards loss of love               2,20,000                80,000
     and affection and                                    (Loss of filial
     care taker                                            consortium)
     Loss of estate                       10,000                15,000
     Transportation of                    25,000                15,000
     dead body and                                             (Funeral
     funeral expenses                                        expenses)
     TOTAL                          38,05,720               44,63,400

23. The Tribunal has granted interest at 8% p.a. without

any basis. Therefore, it is reduced to 6% p.a. Accordingly, I

proceed to pass the following:

ORDER

(i) Appeal is allowed in part.

(ii) Appellants/petitioners are entitled for compensation in a sum of Rs.44,63,400/- as against Rs.38,05,720/- granted by the Tribunal together with interest at 6% p.a. from the date of petition till realization (minus the amount already paid/deposited).