Karnataka High Court
Managing Director vs Sri Kariyappa on 25 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.6805 OF 2019 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.6896 OF 2019 (MV)
IN MFA.NO.6805 OF 2019:
BETWEEN:
MANAGING DIRECTOR
KSRTC
HEAD OFFICE
K.H.ROAD, SHANTHI NAGAR
BENGALURU - 560 027 ... APPELLANT
(BY SRI T.PRAKASH , ADVOCATE)
AND:
1. SRI KARIYAPPA
S/O.RAMAIAH @ RAJU
AGED ABOUT 47 YEARS
2. SMT.MANJULA
D/O.KARIYAPPA
AGED ABOUT 21 YEARS
3. SMT.SHILPA
D/O.KARIYAPPA
AGED ABOUT 19 YEARS
4. SMT.LAKSHMI
D/O.KARIYAPPA
AGED ABOUT 16 YEARS
5. SMT.CHAMUNDI
D/O.KARIYAPPA
AGED ABOUT 14 YEARS
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6. SMT.SOUNDARYA
D/O.KARIYAPPA
AGED ABOUT 12 YEARS
7. SMT.GEETHA
D/O.KARIYAPPA
AGED ABOUT 09 YEARS
RESPONDENT NOS.4 TO 7
ARE MINORS
REPRESENTED BY THEIR
FATHER-NATURAL GUARDIAN
NEXT FRIEND-RESPONDENT NO.1
ALL ARE RESIDING AT
HANDPOST
SARAGUR VILLAGE
B.G.PURA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT ... RESPONDENTS
(BY SRI C.S.KANTHARAJU FOR
SRI YOGESHA G.K., ADVOCATES FOR R-1 TO R-7;
R-4 TO R-7 ARE MINORS REPRESENTED BY R-1)
---
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 28.05.2019 PASSED IN MVC NO.947/2018 BY THE
SENIOR CIVIL JUDGE AND MACT, MALAVALLI & ETC.
IN M.F.A NO.6896 OF 2019:
BETWEEN:
1. SRI KARIYAPPA
S/O.RAMAIAH @ RAJU
AGED ABOUT 47 YEARS
2. SMT.MANJULA
D/O.KARIYAPPA
AGED ABOUT 21 YEARS
3. SMT.SHILPA
D/O.KARIYAPPA
AGED ABOUT 19 YEARS
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4. SMT.LAKSHMI
D/O.KARIYAPPA
AGED ABOUT 16 YEARS
5. SMT.CHAMUNDI
D/O.KARIYAPPA
AGED ABOUT 14 YEARS
6. SMT.SOUNDARYA
D/O.KARIYAPPA
AGED ABOUT 12 YEARS
7. SMT.GEETHA
D/O.KARIYAPPA
AGED ABOUT 09 YEARS
APPELLANT NOS.4 TO 7
ARE MINORS
REPRESENTED BY THEIR
FATHER-NATURAL GUARDIAN
NEXT FRIEND -APPELLANT NO.1
ALL ARE RESIDING AT
HANDPOST
SARAGUR VILLAGE
B.G.PURA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT- 571 463 ... APPELLANTS
(BY SRI C.S.KANTHARAJU FOR
SRI YOGESHA G.K., ADVOCATES)
AND:
THE MANAGING DIRECTOR
KSRTC, HEAD OFFICE
K.H.ROAD, SHANTHI NAGAR
BENGALURU - 560 027 ... RESPONDENT
(BY SRI T.PRAKASH, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
28.05.2019 PASSED IN MVC NO.947/2018 BY THE SENIOR
CIVIL JUDGE AND MACT, MALAVALLI & ETC.
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THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred against the
impugned judgment and award passed by the Senior Civil
Judge and MACT, Malavalli (for short 'the tribunal') in MVC
No.947/2018 dated 28.05.2019. MFA.No.6805/2019 is
preferred by the KSRTC on the ground of exorbitant
compensation being awarded in favour of claimants and
MFA.No.6896/2019 is preferred by the claimants on the
ground of inadequacy of compensation.
2. Though this matter is listed for admission, with
consent of learned counsel on both sides, matter is taken
up for final disposal.
3. Parties to the appeal shall be referred to as per
their status before the tribunal.
4. Brief facts of the case are as under:
On 30.06.2018 at about 12.15 p.m., wife of claimant
No.1 and mother of claimant Nos.2 to 7 namely, Smt.Mani
along with her family members was coming from Mandya to
Malavalli in a KSRTC bus bearing registration No.11 F-0087
and after reaching Malavalli, when the bus stopped at
Anantharaman Circle, Malavalli Town to alight passengers,
at that time, while Smt.Mani was in the process of alighting
stepped out of the bus and while getting down, the driver of
the bus suddenly moved the bus in a rash and negligent
manner, due to which, Smt.Mani was dragged for few
meters and she fell down on the road and the left side rear
wheel ran over her, due to which, she sustained severe
multiple injuries to her head and chest. Immediately, she
was shifted to General Hospital at Malavalli, where the
Doctor has declared her as brought dead. Due to the rash
and negligent driving by the driver of KSRTC bus, the
accident occurred leading to the unfortunate death of the
deceased Smt.Mani causing untold pain and agony and
shock to the family members. Due to which, the claimants
have lost her love and affection, dependency apart from the
company of wife and mother respectively. It is stated that
Smt.Mani was hale and healthy prior to the date of
occurrence of accident and she was aged 38 years and
earning a sum of Rs.15,000/- per month by selling bangles
and household articles.
4.1. It is also stated that the entire family was
dependent on her sole earning. The respondent-KSRTC is
the owner-cum-custodian of the offending bus and
insurance policy was in force as on the date of occurrence
of accident. Hence, the respondent is liable to pay the
compensation. Therefore, the claimants preferred the claim
petition before the tribunal seeking compensation.
4.2. On issuance of notice, the respondent appeared
and filed detailed statement of objections inter alia denied
the averments made in the claim petition and the
compensation sought for by the claimants being excessive,
exorbitant and disproportionate to the earning capacity,
income and avocation of the deceased. It is further pleaded
that neither there was negligence on the part of the driver
of the bus nor he contributed to the occurrence of the
accident. Hence, respondent-KSRTC sought for dismissal of
claim petition.
4.3. On the basis of pleadings, the tribunal has
framed relevant issues for consideration.
4.4. In order to establish and substantiate the case,
the claimants got examined claimant No.3 as PW.1 and
examined a witness namely, Mahadeva as PW.2 who is
none other than the brother of the deceased and got
marked documents as Exs.P1 to P6, on the other hand, the
respondent examined a witness namely, Ranjith, who is
driver of bus working under respondent as RW.1 and got
marked a document as Ex.R1- authorisation letter.
4.5. On the basis of pleadings and material evidence,
both oral and documentary, the tribunal has awarded
compensation of Rs.14,76,000/- with interest @ 9% p.a.
from the date of petition till realization.
5. Being aggrieved by the exorbitant amount of
compensation awarded without considering the material
evidence, the KSRTC is before this Court assailing the same
and the claimants are also before this Court seeking
enhancement of compensation for the meager
compensation awarded by the tribunal.
6. It is the vehement contention of learned counsel
for KSRTC that the tribunal has grossly erred in granting
exorbitant compensation to the claimants without
considering the material evidence both oral and
documentary and the same requires to be reduced. It is
further contended that the accident occurred due to the
negligence of deceased Smt.Mani herself and hence, no
negligence is to be fastened on respondent-KSRTC. It is
further contended that the tribunal has taken the notional
income of Rs.9,000/- per month. According to the claimants
and the statement made before the Police in the complaint,
the deceased and her husband were involved in begging
activities and admittedly, no proof of income is produced or
furnished before the tribunal. In view of the same, the
tribunal ought not to have assessed the income at
Rs.9,000/- per month. It is further contended by learned
counsel that the tribunal has assessed the age of the
deceased at 40 years without there being any material
evidence or proof of the same. He contends that even
according to the claimants as per their own documents
produced as per Ex.P1-FIR and Ex.P4-inquest report, it is
stated by the husband of deceased Kariyappa that the
deceased was aged 48 years. Therefore, the tribunal has
committed a serious error in assessing the age of the
deceased at 40 years, which requires to be set aside.
Accordingly, the multiplier also requires to be modified.
7. It is further contended that the tribunal has
awarded Rs.1,20,000/- under the head of loss of love and
affection and Rs.25,000/- under the head of transportation,
obsequies and ceremony charges as per the principles laid
down by the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Sethi and
others reported in (2017) 16 Supreme Court Cases
680. Learned counsel also contends that the tribunal has
erred in awarding compensation under the head of loss of
expectancy of Rs.20,000/-, which is without any basis and
same requires to be set aside. Learned counsel further
contends that the tribunal has grossly erred in computing
the interest at 9% p.a. whereas interest ought to have been
considered at 6% p.a. as per the judgments of various
Courts and as per Section 34 of CPC. On the basis of these
submissions, he seeks to allow the appeal and set aside the
judgment and award passed by the tribunal.
8. Per contra, learned counsel for claimants
vehemently contends that the tribunal has committed a
serious error in not taking into consideration the material
evidence both oral and documentary in awarding just and
reasonable compensation to the claimants. It is further
contended that the tribunal has committed a serious error
in not assessing the proper income to compute the
compensation as the tribunal has not even considered the
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notional income as prescribed by the Legal Services
Authority for assessment of income of the deceased. It is
further contended that the tribunal has grossly erred in not
awarding any compensation under the head loss of
consortium and the compensation awarded by the tribunal
is very meager and same requires suitable enhancement
commensurate to the age and appropriate notional income
and the avocation of the deceased. He further contends
that the tribunal has awarded appropriate percentage of
interest and same does not warrant interference. On the
basis of these submissions, he seeks to allow his appeal
and for enhancement of compensation.
9. Having heard learned counsel for KSRTC and
learned counsel for claimants, the points that arise for
consideration before this Court are:-
"i) Whether the tribunal has awarded just
and reasonable compensation in the
facts and circumstances of the case?
ii) Whether the compensation requires to
be enhanced?
iii) Whether the interest portion awarded
by the tribunal requires interference by
this Court?"
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10. It is not in dispute that the accident occurred on
30.06.2018 at about 12.15 p.m. while the deceased
Smt.Mani along with her family members were alighting
from the KSRTC bus, the driver of the bus has suddenly
moved with a rash and negligent manner, consequently,
the rear wheel of the bus ran over her, due to which, she
succumbed to the injuries. In order to substantiate that the
KSRTC bus in question was responsible for occurrence of
the accident, PW.1 has produced Exs.P1 to P6-the Police
records, which apparently proved the fact that there is a
criminal case filed against the driver of the KSRTC bus and
also charge sheet has been laid against the driver of the
bus.
11. Admittedly, there is no challenge to the Police
records or to the charge sheet laid against the driver of the
bus. No contra material has been placed or elicited in the
cross-examination or by the evidence of the respondents to
prove that these Police records are not genuine and that
they are concocted and fabricated. Hence, in the absence of
the same, it can be safely concluded that the Police after
conducting enquiry and investigation, have laid the charge
sheet and it is apparent that the driver of the bus has been
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implicated for the offences punishable under Sections 279
and 304-A of IPC which is not challenged or set aside.
Hence, the driver of the KSRTC bus was rash and negligent
in driving the bus, due to which, the accident occurred
leading to the death of deceased.
12. Now coming to the avocation and income of
deceased, admittedly no material evidence has been placed
before the Court to show that the deceased was earning
income of Rs.15,000/- as claimed in the claim petition
preferred by the claimants. However, the tribunal has
assessed the income at Rs.9,000/- per month being the
notional income by taking a daily wage income of Rs.300/-
per day. There are versions to substantiate the age of the
deceased. It is the claim of claimants that the deceased
was aged 38 years as on the date of occurrence of accident
and they have relied on Ex.P5-post mortem report to show
that the deceased was aged about 40 years. On the other
hand, learned counsel for the KSRTC has taken a plea that
even according to the documents produced as per Exs.P1
and P4 which are at the instance of husband of the
deceased, namely, FIR and inquest report, it is mentioned
that the deceased was aged 48 years. Therefore, it is
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contended that the assessment of age taken by the tribunal
is incorrect. Even according to the admitted documents
exhibited by the claimants, the age of the deceased is to be
taken at 48 years based on Exs.P1 and P4. On perusal of
the material evidence placed on record as per exhibits, it is
seen that whether the age has to be taken on the basis of
complaint registered before the Police and the statement
made by the claimants in their claim petition or on the basis
of the post mortem report at Ex.P5. On careful analysis,
since there are variations in age as claimed by the
claimants in their own documents and their statement and
evidence as put-forth by learned counsel for the KSRTC, in
my opinion, the version stated in the FIR requires to be
taken. Therefore, the post mortem report clearly exhibits
that the age of the deceased is 40 years and tribunal has
assessed the age on the basis of the same at 40 years.
There could be possibility at the time of filing of complaint
i.e. the FIR and inquest report, the mental state of mind of
the husband of the deceased should be taken into
consideration and there could be an error in showing the
correct age of the deceased.
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13. Learned counsel for the KSRTC has laid extensive
stress on the age of the husband of the deceased at 55
years as on the date of lodging of the FIR. Hence, the age
of the deceased could not be 46 years and should be taken
as 46 years. I am afraid that this proposition is hard to
countenance for a simple reasons that the post mortem
clearly establishes the age of the deceased as 46 years and
there is no hard and fast rule that since the husband of the
deceased is aged 55 years, the deceased could not be age
of 48 years. Even on perusal of the age of the first daughter
- Manjula is 20 years as on the date of the accident, I do
not find any legal infraction or legal infirmity in assessing
the age of the deceased at 40 years.
14. Admittedly, it is seen that there is no material
evidence placed before the Court regarding proof of
income. In the absence of any proof of income, the Courts
are left with no option but to do a guess work and in order
to do a standard guess work without variation, the Legal
Services Authority has prescribed the notional income
chart, wherein the income is stipulated at Rs.12,500/- for
the accident occurred in the year 2018. Hence, in the
present case on hand, Rs.12,500/- is required to be taken
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as against RS.9,000/- assessed by the tribunal. The age of
the deceased being taken at 40 years as stated above, 40%
will have to be added to the income as loss of future
prospects, which would come to Rs.17,500/- (R.12,500/- +
40%). In view of the fact that there are 07 dependents of
the deceased, 1/5th will have to be deducted towards
personal and living expenses which comes to Rs.14,000/-
(Rs.17,500/- x 1/5) which is to be taken as income for the
dependency. The age of the deceased being 40 years, the
appropriate multiplier as per the judgment of the Hon'ble
Apex Court in the case of Sarla Verma (Smt) and
others vs. Delhi Transport Corporation and another
reported in (2009) 6 Supreme Court Cases 121 is '15',
which is rightly applied by the tribunal and the same does
not call for interference. Hence, the loss of dependency
would comes to Rs.25,50,000/- (Rs.14,000/- x 12 x 15).
15. The tribunal has awarded Rs.1,20,000/- towards
loss of love and affection, which does not call for any
interference.
16. The tribunal has not awarded any compensation
under the head loss of consortium. In view of there being
07 dependents, Rs.40,000/- per head is to be awarded as
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per judgment in the case of Pranay Sethi (supra) which is
followed by the Hon'ble Apex Court in the case of United
India Insurance Co.Ltd. v. Satinder Kaur Alias
Satinder Kaur reported in AIR 2020 SC 3076.
Accordingly, Rs.2,80,000/- (Rs.40,000/- x 7) is awarded
under the head of loss of consortium.
17. Towards of transportation, obsequies and
ceremonies, the tribunal has awarded Rs.25,000/- which is
on the higher side. I am in agreement with the learned
counsel for KSRTC and same is requires to be reduced to
Rs.15,000/- as against Rs.25,000/- awarded by the
tribunal.
18. Towards loss of estate, the tribunal has awarded
Rs.15,000/-, which does not call for interference.
19. Towards loss of expectancy, the tribunal has
awarded Rs.20,000/-, again I am in agreement with
learned counsel for the KSRTC that there is no substance
for awarding this amount as the compensation has already
been awarded under the heads of loss of consortium and
loss of dependency. Hence, this amount requires to be set
aside and the same is set aside.
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20. In view of the discussion made above, the
claimants are entitled for compensation as stated in the
table below:
Heads As awarded by As awarded by
the tribunal this Court
(in Rs.) (in Rs.)
Loss of dependency 12,96,000-00 25,20,000-00
Loss of love and 1,20,000-00 1,20,000-00
affection
Loss of consortium Nil 2,48,000-00
Transportation,
obsequies and 25,000-00 15,000-00
ceremony charges
Loss of estate 15,000-00 15,000-00
Loss of expectancy 20,000-00 Nil
TOTAL 14,76,000-00 29,18,000-00
21. Learned counsel for KSRTC vehemently
contended that the interest portion awarded by the tribunal
is on the higher side and same requires to be reduced
which is seriously controverted by learned counsel for
claimants. I am in agreement with the contentions of
learned counsel for KSRTC as interest portion is not
specifically mentioned in the Motor Vehicles Act. However,
under Section 34 of CPC, the interest is stipulated @ 6%
and this Court has time and again held in catena of a
judgments that usually interest to be awarded @ 6%.
Therefore, I deem it appropriate to reduce the interest from
9% to 6%.
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For the aforesaid reasons and discussions, I pass the
following:
ORDER
i) Both the appeals are allowed-in-part;
ii) The judgment and award passed by the Senior
Civil Judge and MACT, Malavalli in MVC
No.947/2018 dated 28.05.2019 is modified;
iii) The claimants are entitled for total compensation
of Rs.29,18,000/- as against Rs.14,76,000/-
awarded by the tribunal;
iv) The claimants shall be entitled for interest @ 6%
p.a. on the entire amount which would be paid
from the date of petition.
v) The appellant-KSRTC shall deposit the amount of
compensation before the tribunal within a period of
six weeks from the date of receipt of a copy of this
judgment;
Pending application, if any, does not survive and the
same stands consigned to records.
Sd/-
JUDGE
LB
