Karnataka High Court

Venkatesh E vs The Managing Director Bmtc on 6 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                              -1-
                                                          NC: 2023:KHC:44190
                                                        MFA No. 2558 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 2558 OF 2020 (MV)
                   BETWEEN:

                   1.    VENKATESH E
                         S/O LATE ERAPPA
                         (ERAPPA WAS ALSO
                         CALLED VEERAPPA)
                         AGED 46 YEARS
                         R/AT 1/A, MUNISWAMY LAYOUT
                         HEBBAL KEMPAURA
                         BENGALURU NORTH -560024.

                   2.    SMT. VEENA
                         W/O SRI UDAY V.R
                         AGED 32 YEARS
                         RESIDING AT 81, 1ST MAIN
                         4TH CROSS, M.S.NAGAR
                         THIRUMENAHALLI, YELAHANKA
                         BENGALURU NORTH
Digitally signed
by                       BENGALURU-560064.
DHANALAKSHMI                                                   ...APPELLANTS
MURTHY
Location: High
Court of           (BY SRI. SRIDHAR D S., ADVOCATE)
Karnataka
                   AND:

                   THE MANAGING DIRECTOR
                   BMTC, K.H.ROAD, SHANTHINAGAR
                   BENGALURU-560027
                                                              ...RESPONDENT
                   (BY SMT. SOHANI A HOLLA.,ADVOCATE)
                              -2-
                                          NC: 2023:KHC:44190
                                       MFA No. 2558 of 2020




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:12.12.2019
PASSED IN MVC NO. 929/2019 ON THE FILE OF THE C/C OF XX
ADDITIONAL SMALL CAUSES JUDGE, XVIII ADDITIONAL CHIEF
METROPOLITAN     MAGISTRATE    AND    MEMBER,     MACT,
BENGALURU SCCH-22,      PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the claimants being aggrieved by

the judgment dated 12.12.2019 passed by the XX

Additional Small Causes Judge and XVIII Additional Chief

Metropolitan Magistrate and MACT, Bengaluru (SCCH-22)

(for short 'the Tribunal') in MVC No.929/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.01.2019 at about 11.10 a.m.,

the deceased Jayamma was crossing the ring road near

Hebbal circle, Bengaluru. At that time, a BMTC bus

bearing registration No.KA-57/F-1921, came from

Veerannapalya side, which was being driven in a rash and

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negligent manner, dashed against the deceased. As a

result of the aforesaid accident, the deceased fell down,

sustained grievous injuries and succumbed to the injuries

on the way to the hospital.

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 accident was due to the

negligence of the deceased herself. 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 got exhibited documents

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namely Ex.P1 to Ex.P18. On behalf of respondents, one

witness was examined as RW-1. 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.95,010/- along with interest at the

rate of 6% p.a. and directed the Corporation to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the claimants has

raised the following contentions:

(i) Firstly, at the time of the accident the deceased

was working as a maid and was earning Rs.15,000/- per

month. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.5,000/-.

(ii) Secondly, the claimants are entirely depending

upon the income of the deceased. But the Tribunal has

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not awarded any compensation under the head 'loss of

dependency', but awarded only 'loss of estate' by taking

25% of the income of the deceased instead of taking 50%

of the income. In support of his contentions, he relied on a

judgment of a Division Bench of this Court in the case of

B.V.GOPALA vs. MEHABOOB PASHA AND OTHERS

(MFA No.7318/2016 disposed of on 23.10.2020),

following the judgment of the Hon'ble Apex court in the

case of MANJURI BERA (SMT) vs. ORIENTAL

INSURANCE CO. LTD. & ANOTHER reported in (2007)

10 SCC 643 has held that claimants are entitled for loss

of estate at 50% of the income of the deceased.

(iii) Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in 2018

ACJ 2782, each of the claimants are entitled for

compensation under the head of 'loss of love and affection

and consortium'. Hence, he prays for allowing the appeal.

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7. On the other hand, the learned counsel for the

Corporation has raised the following contentions:

(i) Firstly, even though the claimants claim that the

deceased was earning Rs.15,000/- 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.

(ii) Secondly, the claimants are major children of the

deceased and they are not depending upon the income of

the deceased. The Tribunal has rightly awarded

compensation under the head 'loss of estate'.

(iii) Thirdly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award and original records.

9. It is not in dispute that Jayamma died in the

road traffic accident occurred on 15.01.2019 due to rash

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and negligent driving of the BMTC bus bearing registration

No.KA-57/F-1921 by its driver.

10. The claimants have not produced any evidence or

documents with regard to the income of the deceased.

Therefore, the notional income has to be assessed as per

the guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place in

the year 2019, the notional income has to be taken at

Rs.14,000/- p.m. Even though the claimants claim that

they are depending upon the deceased, since the first

claimant is the major son and the second claimant is the

married daughter of the deceased, they are not entitled to

'loss of dependency' and they are entitled to only 'loss of

estate'. A Division Bench of this Court in the case

B.V.GOPALA (supra) has held that even for 'loss of

estate' 50% of the income of the deceased has to be

deducted for personal expenses and the remaining 50%

has to be considered for calculating 'loss of estate'.

Accordingly, income of Rs.7,000/- has to be taken. The

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deceased was aged about 68 years at the time of the

accident and multiplier applicable to her age group is '5'.

Thus, the claimants are entitled to compensation of

Rs.4,20,000/- (Rs.7,000*12*5) on account of 'loss of

dependency'. In addition, the claimants are entitled to

Rs.15,000/- on account of 'funeral expenses'. In view of

the law laid down by the Supreme Court in MAGMA

GENERAL INSURANCE (supra), the claimants are

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

head of 'loss of parental consortium'.

11. Thus, the claimants are entitled to the following

compensation:

             Compensation under                Amount in
               different Heads                   (Rs.)

           Funeral expenses                           15,000

           Loss of estate                         4,20,000

           Loss of Parental                           80,000
           consortium

                            Total                5,15,000

                                           NC: 2023:KHC:44190

12. In view of the above, I pass the following order: