Karnataka High Court

Smt.Kaveri W/O Sanju Kumar And Ors vs Ramji And Anr on 16 March, 2023

Bench: S.Sunil Dutt Yadav, Ramachandra D. Huddar

         IN THE HIGH COURT OF KARNATAKA
                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.201525/2021 (MV-D)

1. SMT.KAVERI W/O SANJU KUMAR,
   AGED 30 YEARS, OCC. HOUSEWIFE,

2. Chi. MALLIKARJUN S/O SANJU KUMAR,
   AGED 9 YEARS, MINOR, OCC. NIL,
   U/G OF HIS NATURAL MOTHER
   SMT. KAVERI, PETITIONER NO.1.

3. PARAMESHWAR S/O VEERBHADRAPPA,
   AGED 64 YEARS, OCC. NIL,

4. PARVATI W/O PARAMESHWAR,
   AGED 63 YEARS, OCC : HOUSEHOLD,

  ALL R/O. H.NO. 11-99,
  C/O. BASAYYA GANCHARYA,
  UPPER LANE, BRAHMPUR,
  KALABURAGI.                        ...APPELLANTS
               (BY SRI S G MATH, ADVOCATE)
                                 2




AND
1. RAMJI,
   DRIVER OF BUS NO. KA-32/F-1860,
   ALAND DEPOT, ALAND,
   TQ. ALAND, DIST. KALABURAGI 584 103.

2. THE MANAGING DIRECTOR,
   NEKRTC, OPP. TO
   KBN HOSPITAL,
   STATION MAIN ROAD
   KALABURAGI 584 103.                        ...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR
  R2)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING THAT THE JUDGMENT
AND AWARD DATED 02.01.2020 PASSED BY IN MVC
NO.740/2018 BY THE LEARNED PRL. SENIOR CIVIL JUDGE
AND MACT, KALABURAGI IN AWARDING RS.19,98,000/-
WITH INTEREST AT 6% PER ANNUM FROM THE DATE OF
PETITION MAY KINDLY BE ENHANCED TO RS.61,00,000/-
ALONG WITH INTEREST @ 8% PER ANNUM FROM THE DATE
OF PETITION, TILL REALIZATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
03.03.2023 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.740/2018 before the MACT, Kalaburagi constituted under

Section 165 of MV Act, challenging the inadequacy of the

compensation awarded by the Tribunal as per the award dated 2nd

January 2020.

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 24.02.2018 at

about 5.15 p.m. deceased Sanjukumar to attend his personal work

had been to Choudapur. After completion of his work, when he

was returning to his village Dhannur on his motor bike bearing

Regn.No.KA-27-R-4978 and when he came near Kadaganchi Petrol

Pump on Choudapur-Afzalpur Main Road, a driver of a KSRTC bus

bearing Regn.No.KA-32-F-1860 by driving the bus in rash and

negligent manner dashed against the motor cycle driven by

Sanjukumar. He sustained grievous injuries on his head and other

parts of the body. He was shifted to Hospital in an ambulance.

But, succumbed to the accidental injuries in the Hospital.

4. It is the further case of the claimants that, prior to the

accident, deceased was running a Kirana Shop and used to earn

Rs.20,000/-. Claimant no.1 being wife, claimant no.2 being his son

and claimant no.3 and 4 being the parents of deceased were

depending upon the earning of deceased Sanjukumar. Now, they

are deprived of their earning member because of untimely death

of deceased. Hence, it is prayed before the tribunal to award

compensation of Rs.61,00,000/-.

5. Pursuant to the notice issued by the MACT, both the

respondents appeared. Respondent no.1 has not filed any

objections whereas, respondent no.2 filed the objections denying

the entire assertions made in the petition.

6. It is contended that, it is rider of the motor bike i.e.

deceased who was rash and negligent in riding his motor bike and

due to his negligence, the said accident has taken place. The

police have registered a false case against the Driver of the bus.

The compensation so claimed is exorbitant. It is prayed to dismiss

the petition.

7. Based upon the rival pleadings, the learned MACT

framed following five issues:

"1. Whether the petitioners prove that on 24.02.2018 at or about 5.55 p.m. on Chowdapur-Afzalpur Road, Near Kadaganchi Petrol Pump Afzalpur, when the deceased Sanju Kumar was proceeding on Motor Cycle bearing Reg.No.KA-27/R-4978, at that movement the driver of the KSRTC Bus bearing Reg.No.KA-32/F-1860 drove at high speed in a rash and negligent manner and dashed to the deceased motor cycle thereby the accident occurred and succumbed to injuries in the accident?

2. Whether the petitioners prove that they are the legal heirs and dependents of the deceased?

3. Whether the respondent proves that the petition is bad for non-joinder of necessary parties as contended in para no.7 of the objection statement?

4. Whether the petitioners are entitled for compensation ? If so, from whom ?

5. What order or award?"

8. To substantiate the claim of the claimants, claimant

no.1 appeared before the MACT and was examined himself as

PW.1. Got marked Ex.P1 to P10 and closed claimant's evidence.

9. To rebut the evidence of the claimants, representative

of respondent no.2 entered the witness box as RW.1. No

documents are marked on behalf of respondent no.2. Both PW.1

and RW.1 are thoroughly cross-examined.

10. The learned MACT having heard the arguments and on

perusal of the oral and documentary evidence answered issue no.1

in the affirmative, issue no.4 partly in the affirmative and issue

nos. 2 and 3 in the negative and ultimately awarded compensation

of Rs.19,98,000/- fastening liability on respondent no.2 to deposit

the same by fixing the time limit with deposit clause.

11. After filing of this appeal, learned Advocate for

respondent no.2 Sri Mallayya Manjunath Shetty, took notice of this

appeal. As per peremptory order dated 6.12.2022, appeal against

respondent no.1 is dismissed.

12. It is this judgment that has been challenged by the

appellants on the following grounds:

That, the learned Tribunal has not taken into consideration

the injuries sustained by the deceased. Documentary evidence

have not been considered. Thus, the judgment is arbitrary,

erroneous and illegal. Ex.P8 to P10 have been produced to prove

about the income of the deceased from his Kirana Business and

agriculture. These aspects have not been properly considered. The

amount of income so reckoned by the Tribunal at Rs.9,000/-per

month is on lower side. Agriculture income is not considered. The

compensation so awarded on other heads also is not proper.

Therefore, it is prayed to allow the appeal and enhance the

compensation as it is too inadequate.

13. We have heard the arguments. Perused the records.

14. It is the case of the claimants that the deceased was

hale and healthy and was aged 30 years at the time of his death.

He was running a Kirana business as well as an agriculturist 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.

Claimant No.1 being the wife and claimant no. 2 being the son and

claimant nos. 3 and 4 being parents have lost their bread earner.

It is stated that the deceased was the only son to his parents.

Because of untimely death, now the claimants are deprived of

their earning member and his love and affection. Claimant no.1

being the wife at her young age lost her husband and claimant

no.2 is just aged 6 years. Claimant no.3 and 4 being parents aged

61 and 60 respectively.

15. The Tribunal has taken the income of the deceased at

Rs.9,000/- per month plus 40% which is Rs.3,600/-. Thus, it has

calculated the monthly income at Rs.12,600/- yearly income

1,51,200/-. Since the deceased was married, 1/4th of his income

was deducted towards his personal expenses. Thus, it arrived at

Rs.37,800/- (1/4th of Rs.1,51,200). Thus, the yearly income of the

deceased was calculated at Rs.1,13,400/-. The multiplier `17' was

applied as per the Judgment in Sarla Verma Vs. Delhi Transport

Corporation and another reported in (2009) 6 SCC 121 case. The

loss of dependency was arrived at Rs.19,27,800/- (Rs.1,13,400 x

17). In all, the Tribunal awarded Rs.19,98,000/- including the

award under the conventional heads.

16. It is argued by the counsel for the appellants-

claimants that the compensation so awarded is inadequate. Under

all the conventional heads, compensation have to be awarded by

considering the monthly income of the deceased at more than

Rs.20,000/- as he was running a Kirana Shop and also he had

agricultural income. At least notional income has to be taken

looking to the present day conditions and business. He further

submits, a person who is running a Kirana Shop would get more

profit from such business. 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

National Insurance Co. vs. Pranay Sethi reported in (2017) 16

SCC 680.

17. 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.

18. 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.

19. 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 the rash and

negligent act of the driver in causing the accident by the

respondent, now we have to restrict our findings only with regard

to inadequacy of the compensation.

20. Evidently, the deceased Sanju Kumar was a

businessman running Kirana Shop. From the Kirana Shop he must

have been earning substantially. The assertion that he was having

agriculture income is also denied by the respondents. Taking into

consideration of all these aspects, if the notional income of the

deceased is taken at Rs.11,750/- and as per the judgment in

Pranay Sethi case supra, there would be addition of 40% (40% of

Rs.11,750/- is Rs.4,700/- = Rs.16,450/-). As the deceased was a

married person, 1/4th of his total income is to be deducted towards

his personal expenses. Thus, the monthly income would be

Rs.12,337.50(Rs.16,450 x ¼ = Rs.4,112.50, Rs.16450 - 4112.50

= 12,337.50). Annual income would come to Rs.1,48,050/-

(Rs.12,337.50 x 12). It is to be multiplied by multiplier `17' as

the deceased was aged 30 years as per Sarla Verma's case supra.

Thus, the loss of dependency would be Rs.25,16,850.00

(Rs.1,48,050 x 17)

21. Petitioner no.1.is the wife aged 30 years and at her

young age, she has lost her husband. As she has lost her husband

at her young age, towards consortium, certain amount is to be

awarded. If Rs. 40,000/- is awarded, it would meet the ends of

justice. Likewise, claimant no. 2 being the son, has lost his father

at his young age of 6 years and petitioner nos. 3 and 4 being

parents, at their evening of life have lost their son. Therefore, if

Rs.40,000/- each is awarded to each of petitioner nos. 2 to 4

towards loss of consortium, it would meet the ends of justice.

There is untimely death of deceased Sanju Kumar and because of

the same, there is a loss of estate, if Rs.10,000/- is awarded by

the Tribunal towards loss of estate, it is just and proper. Towards

funeral and obsequies expenses, it is appropriate if Rs.20,000/- is

awarded. Thus, the claimants are held entitled for total

compensation of Rs.27,06,850/-. The Tribunal has awarded a sum

of Rs.19,98,000/-. After deduction of the same, the appellants-

claimants are entitled for a total enhanced compensation of

Rs.7,09,000/- (Rs.27,06,850 - 19,98,000) together with interest

at the rate of 6% p.a. from the date of petition till realization.

22. Thus, claimants-appellants are entitled for

compensation as under:

   Sl.                Heads                             Rs.Ps.
   No.
    1. Loss of dependency                               25,16,850/-
       (Rs.12,337.50x12 x 17)
    2. Towards Loss of consortium to                     1,60,000/-
       Appellant Nos.1 to 4 (40,000x4)
    3. Funeral and obsequies ceremonies                   20,000/-
    4. Towards loss of estate                             10,000/-
                   TOTAL                             27,06,850/-
       Amount of compensation enhanced              Rs.7,08,850/-
       in    appeal     (Rs.27,06,850   -
       19,98,000)
                           Rounded off to           Rs.7,09,000/-

23. 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. The Judgment and Award

dated 02.01.2020 passed in MVC No.740/2018 by the

Prl.Senior Civil Judge & MACT, Kalaburagi is modified.

The appellants-claimants are held entitled for enhanced

compensation of Rs.7,09,000/- together with interest at

the rate of 6% from the date of petition till realization.

ii) The respondent-2 is directed to deposit the said enhanced