Karnataka High Court
Smt. Renuka And Ors vs The Divisional Controller on 16 March, 2023
Bench: S.Sunil Dutt Yadav, Ramachandra D. Huddar
IN THE HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH
DATED THIS THE 16th DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.202106/2018 (MV)
BETWEEN:
1. Smt.Renuka W/o.Late Rajkumar
Age: 31 years, Occ:Household
2. Ajay S/o.Late Rajkumar
Age: 14 years, Occ: Student
3. Shrushti D/o.Late Rajkumar
Age: 11 years, Occ: Student
4. Shivakumar S/o.Late Rajkumar
Age: 9 years, Occ: Student
All are Residents of Village
Siddapurwadi, tq: Bhalki
Dist: Bidar
Pin Code 584 101. ... Appellants
(By Sri Babu H.Metagudda, Advocate)
AND:
The Divisional Controller
NEKRTC, Bidar.
Owner of bus No.KA-36/F-728)
... Respondents
(By Smt. Sangeeta Bhadrashetty, Advocate)
2
This Miscellaneous First Appeal is filed under
Section 173(1) of MV Act, praying to allow this appeal and modify
the judgment and award dated 30.04.2018 passed in MVC
No.387/2017 by Senior Civil Judge and Addl. MACT at Bhalki and
enhancing the compensation from Rs.8,65,000/- with 6% interest
to Rs.42,90,000/- with 12% interest and etc.
This appeal having been heard through physical hearing
/video conference and reserved for Judgment on 02.03.2023,
coming on for pronouncement of Judgment this day,
Ramachandra D.Huddar, J., delivered the following:
JUDGMENT
This appeal is preferred under Sec.173(1) of Motor Vehicles
Act, 1988 (in short `the MV Act') by the appellants-claimants in
claim petition filed under Section 166 of MV Act in MVC
No.387/2017 before the MACT, Bhalki constituted under Section
165 of MV Act, challenging the inadequacy of the compensation
awarded by the Tribunal as per the award dated 30.04.2018.
2. As the short point is involved with regard to
inadequacy of the compensation, with consent of both the side, we
have taken up this appeal for final disposal.
3. The brief facts of the case are that, on 27.3.2017 at
5.00 p.m. near SB Patil Dental College, Naubad-Bidar on Bidar-
Humnabad Road, when husband of petitioner no.1 and father of
petitioner nos. 2 to 4 by name Rajkumar was proceeding by walk
towards Naubad side on the left side of the road, a KSRTC bus
bearing Regn.No.KA-36-F-728 driven by its driver in a rash and
negligent manner, dashed against said Rajkumar and caused the
accident. He sustained grievous injuries on his head, chest,
stomach, both the shoulders, fore-head and succumbed to the
injuries on the spot itself. The claimants shifted the dead body by
hiring a vehicle and thereafter conducted the funeral by spending
more than Rs.30,000/-. A complaint was lodged in crime No.33/17
at Traffic Police Station, Bidar.
4. It is the further case of the claimants that the
deceased was hale and healthy and was aged 40 years at the time
of his death. He was running a Kirana business and was earning
not less than Rs.20,000/- per month. From the said income, he
used to maintain his family. It is stated that because of untimely
death, the claimants have lost their earning member. Petitioner
no.1 being the wife and petitioners 2 to 4 being small children
aged 13, 10 and 8 years have lost the love and affection of their
father and have been put to great mental shock. These claimants
were depending upon deceased's income. Therefore, it is claimed
by the complainants to award compensation of Rs.42,92,000/-
under all the heads.
5. Before the learned Tribunal, pursuant to the notice,
respondent-Corporation-the owner of offending bus appeared and
resisted the petition by filing detailed objections. The allegations of
rash and negligent driving of the said bus by the driver, earning
capacity of the deceased have been flatly denied by the
respondent. The claim of the claimants as per the say of the
respondent is exorbitant; they are not entitled for interest at the
rate of 18% on the compensation. It is also denied that the
sufficient amounts have been spent on funeral expenses. It is
contended that, without prejudice to the right of the respondents,
Rs.15,000/- was paid to the claimants in advance. Hence, it is
prayed to dismiss the petition.
6. Based upon the rival pleadings, the learned Tribunal
framed four issues they are as follows:
"1. Whether the claimants prove that on
23.03.2017 at 5.30 p.m. on Bidar-Humnabad
road near SB Dental College at Naubad, at
Bidar, while Rajkumar was proceeding on the
left side of road, the accident occurred is due
to rash and negligent driving of Bus bearing
Regn.No.KA-36/F-728 by its rider?
2. Whether the claimants proves that
deceased-Rajkumar died due to injuries
sustained the above said accident?
3. Whether the petitioners are entitled
for compensation? If so, at what rate and
from whom?
4. What order or award?"
7. Before the Tribunal, petitioner no.1 entered the
witness box and got marked Ex.P1 to P6 and closed petitioners'
evidence. The driver of the bus was examined as RW.1 to rebut
the claim of the petitioners and got marked the document Ex.R1
and closed its evidence.
8. The learned Tribunal, having heard the arguments,
allowed the petition in part by awarding compensation of
Rs.8,65,000/- with interest at the rate of 6% p.a. from the date of
petition till realization. There was an order for deposit and
payment of compensation so awarded on deposit.
9. It is this judgment and award which is challenged by
the appellants being dissatisfied with the compensation so
awarded and according to them, the compensation so awarded is
inadequate and is opposed to the probabilities of the case. There is
no proper awarding of compensation towards conventional heads.
The income of the deceased was not properly assessed and taken
by the Tribunal. In fact, the said income of the deceased per
month was to be enhanced upto Rs.20,000/- per month.
Therefore, it is prayed that the appeal be allowed and
compensation be enhanced.
10. We have heard the arguments of both side at length
and perused the record.
11. The learned Tribunal has taken the income of the
deceased at Rs.6,000/- per month and deducted 1/4th towards his
personal expenses. After deduction, the income was calculated at
Rs.4,500/- per month. Towards other conventional heads, the
compensation is awarded. As per judgment rendered by Hon'ble
Supreme Court in Sarla Verma (Smt.) & Others vs. Delhi
Transport Corporation and another reported in (2009) 6
SCC 121 case, the multiplier applied was `15'. Thus, the Tribunal
has awarded Rs.8,10,000/- towards loss of dependency and
Rs.70,000/- under conventional heads totally amounting to
Rs.8,80,00/- and deducted Rs.15,000/- which was given for
funeral expenses. Totally an amount of Rs.8,65,000/- was
awarded to the claimants.
12. It is argued by the counsel for the appellants-
claimants that the compensation so awarded is inadequate as the
Tribunal has considered Rs.200/- per day and taken monthly
income at Rs.6,000/- The monthly income of the deceased should
have been taken at more than Rs.12,000/- as he was running a
Kirana Shop. At least notional income has to be taken looking to
the present day conditions and business. He further submits that,
Kirana business though proprietary concern gives more profit.
There was increase in the business of the deceased. Therefore, he
submits that, a notional income has to be taken into consideration
depending upon the year of accident and other aspects as per the
law laid down in the Judgment reported in National Insurance
Company Ltd., vs. Pranay Sethi and others reported in
(2017) 16 SCC 680.
13. In Syed Basheer Ahmed vs. Mohammed Zameer
(2009) 2 SCC 225 the Hon'ble Apex Court noticed that Sec.168
of the MV Act enjoins the claims Tribunal to make an award
determining "the amount of compensation which appears to be
just". However, the objective factors, which may constitute the
basis of compensation appearing as just, have not been indicated
in the Act. Thus, the expression "which appears to be just" vests
wide discretion in the Claims Tribunal in the matter of
determination of compensation. Nevertheless, the wide amplitude
of such power does not empower the Tribunal to determine the
compensation arbitrarily or to ignore settled principles relating to
the determination of the compensation. Similarly, although the Act
is a beneficial legislation, it can neither be allowed to be used as a
source of profit nor as a windfall to the persons affected nor
should it be punitive to the persons liable to pay compensation.
The determination of the compensation must be based on certain
data, establishing reasonable nexus between the loss incurred by
the dependents of the deceased and the compensation to be
awarded to them. In a nutshell, the amount of compensation
determined to be payable to the claimants has to be fair and
reasonable by accepted legal standards.
14. The determination of the quantum must answer what
"contemporary society would deem to be a fair sum such as would
allow the wrong doer to hold up his head among his neighbours
and say with their approval that he has done the fair thing". The
amount awarded must not be niggardly since the "law values life
and limb in a free Society in generous case". At the same time,
misplaced sympathy, generosity and benevolence cannot be the
guiding factor for determining compensation. The object of
providing compensation is to please the claimants to the extent
possible, in almost the same financial position as they were in
before the accident and not to make a fortune out of misfortune
that has befallen them.
15. Keeping in mind the aforesaid analogy with regard to
awarding of just compensation, now as in this case the inadequacy
of compensation is challenged by the claimants-appellants and
there is no challenge of the findings with regard to rash and
negligent act of the driver in causing the accident by the
respondent. Therefore, now we have to restrict our findings only
with regard to inadequacy of the compensation.
16. Evidently, the deceased Rajkumar was a businessman
running Kirana Shop. From the Kirana Shop he must have been
earning substantially. If the notional income of the deceased is
taken at Rs.10,250/- and as per the judgment in Pranay Sethi
case, there would be addition of 25% (25% of Rs.10,250=
Rs.2,562/-) to the said income, if calculated, the income of the
deceased would be Rs.12,812/-. As the deceased was married,
being a businessman, 1/4th of his income is to be deducted
towards his personal expenses. Thus, it would be Rs.12,812 -
Rs.3,203 = Rs.9,609/-. The annual income would be
Rs.1,15,308/-. The deceased was aged 40 years at the time of
accident and as per Sarla Verma's case proper multiplier applicable
is `15'. Thus, the total loss of dependency would be
Rs.17,29,620/- (Rs.1,15,308/- x 15).
17. Petitioner no.1. is the wife aged 30 years and at her
young age, she has lost her husband. So also claimants 2 to 4 are
children aged 13, 11 and 8 years as on the date of filing of the
claim petition as per the cause title. They too, at their young age
who are not capable of understanding the men and material, have
lost their father being bread earner. They also lost his love and
affection. Towards loss of consortium, certain amount is to be
awarded to claimant no.1. Claimant nos. 2 to 4 have lost their
father and also lost his love and affection towards them.
Therefore, towards filial love and affection, these claimants are
entitled to some compensation. So also, because of untimely
death of deceased Rajkumar, there is loss of estate. So also, the
petitioners must have spent substantial amount towards funeral
and obsequies ceremonies. Therefore, certain amount is to be
awarded towards funeral expenses and obsequies ceremonies.
18. As already MACT has awarded compensation which is
being challenged in this case with interest at the rate of 6% p.a.,
the same interest is to be awarded on the amount so enhanced in
this appeal. Thus the claimant-appellants are entitled for
compensation as under:
Sl. Heads Rs.
No.
1. Loss of dependency 17,29,620/-
(Rs.1,15,308/- x 15)
2. Towards Loss of consortium to 1,60,000/-
3. Funeral and obsequies ceremonies 16,500/-
4. Loss of Estate 16,500/-
TOTAL 19,22,620/-
Less : Comp. awarded by the 8,65,000/-
Tribunal
Amount of compensation enhanced 10,57,620/-
in appeal
Rounded off to Rs. 10,58,000/-
19. In view of our discussion, with regard to the actionable
claim and the compensation to be awarded to the claimants, this
appeal deserves to be allowed in-part. Resultantly, we pass the
following:
ORDER
i) The appeal is allowed in-part.
ii) The Judgment and Award dated 30.04.2018 passed in
MVC No.387/2017 by the Senior Civil Judge & Addl.
MACT, Bhalki is modified. The appellants-claimants are
held entitled for enhanced compensation of
Rs.10,58,000/- together with interest at the rate of 6%
from the date of petition till realization.
iii) The respondent is directed to deposit the said enhanced
compensation before the MACT, Bhalki within four weeks
from the date of receipt of certified copy of this
Judgment.
iv) On such deposit, the Tribunal to take appropriate steps to
deposit the amount in the name of minors i.e., claimant
no.2 to 4 keeping their interest and also make payment
as per the terms of apportionment so passed while
passing the award.
v) Claimant no.1 is entitled to draw periodical interest on
such deposit.
vi) Advocate fee is quantified at Rs.5,000/-.
Sd/-
JUDGE
Sd/-
JUDGE
Sk/-
