Karnataka High Court

Smt.Sannamma vs The Managing Director on 22 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                -1-
                                                        NC: 2023:KHC:42046
                                                      MFA No. 5271 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 22ND DAY OF NOVEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 5271 OF 2020 (MV)


                   BETWEEN:

                   1.    SMT.SANNAMMA
                         W/O LATE GANGANNA
                         AGED ABOUT 48 YEARS.

                   2.    SRI.NARASIMHAMAURTHY
                         S/O LATE GANGANNA
                         AGED ABOUT 28 YEARS.

                   3.    SRI.CHANDRESH
                         S/O LATE GANGANNA
                         AGED ABOUT 26 YEARS

                         ALL ARE R/AT BINDANIGERE
                         WARD NO.1, KUNIGAL TOWN
Digitally signed         TUMKUR DISTRICT-572 130.
by
DHANALAKSHMI                                                  ...APPELLANTS
MURTHY
                   (BY SRI. CHANDRASHEKARAIAH B., ADVOCATE)
Location: High
Court of
Karnataka          AND:

                   THE MANAGING DIRECTOR
                   KSRTC DEPARTMENT
                   SHANTHINAGAR
                   BANGALORE-560 027.
                                                              ...RESPONDENT
                   (BY SRI. RADHA B P.,ADVOCATE)

                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED 21.08.2019
                              -2-
                                            NC: 2023:KHC:42046
                                       MFA No. 5271 of 2020




PASSED IN MVC NO. 7806/2018 ON THE FILE OF     THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU SCCH-14,    PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

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


                        JUDGMENT

1. 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 and award dated 21.08.2019 passed by the

MACT, Bengaluru in MVC No.7806/2018.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 23.10.2018 at about 11.15 a.m., when

the deceased was riding his two wheeler bearing

Registration No.KA-02-EC-3874 from Kunigal side towards

Bidanigere side, while so riding at Bidanigere village the

deceased had ridden his two wheeler towards R Gowda's

Petrol Bunk by taking his two wheeler to the right turn by

following all the traffic rules with indicators and signals

NC: 2023:KHC:42046

and after passing the said NH-75 road when the deceased

was riding his two wheeler on the right footpath of NH-75

road and at the same point of time, the driver of KSRTC

Bus bearing Registration No.KA-09-F-5148 came from

Nelamangala side towards Kunigal side by its driver

driving rash and negligent manner and came to the

extreme foot path side and dashed against the deceased

two wheeler. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed to

the injuries.

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. It was

pleaded that the petition itself is false and frivolous in the

eye of law. The age, occupation and income of the

NC: 2023:KHC:42046

deceased are denied. 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 and got exhibited

documents namely Ex.P1 to Ex.P7. On behalf of

respondents, one witness was examined as RW-1 and got

exhibited documents namely Ex.R1 and Ex.R2. 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.6,80,000/- along with

interest at the rate of 7% p.a. and directed the

Corporation to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been filed.

NC: 2023:KHC:42046

6. The learned counsel for the claimants has raised the

following contentions:

a) Firstly, the accident occurred due to rash and

negligent driving of driver of the Bus. The driver of the Bus

drove the same in a rash and negligent manner, came

extreme left side and dashed against the deceased. He

further contended that it is very clear from the Sketch and

Mahazar, the accident occurred on the foot path. Even the

Police have registered FIR and after thorough

investigation, have filed the charge sheet against the

driver of the Bus, which discloses that the driver of the

Bus alone was negligent in causing the accident. The

Tribunal has erred in holding that the deceased was also

contributed 20% to the accident.

b) Secondly, the claimants claim that at the time of the

accident and the deceased was earning Rs.18,000/- per

month by doing coolie work. But the Tribunal is not

justified in taking the monthly income of the deceased as

merely as Rs.8,000/-.

NC: 2023:KHC:42046

c) Thirdly, as per the judgment of the Hon'ble Supreme

Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V-

NANU RAM [2018 ACJ 2782], each of the claimants are

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

of 'loss of love and affection and consortium'.

d) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for allowing

the appeal.

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

Corporation has raised the following counter-contentions:

a) Firstly, the accident occurred due to negligence of

the deceased. He has suddenly turned his vehicle to the

right side without observing Bus coming from opposite

direction in the main road. To prove the same, the

respondent has produced Ex.R1-three photographs. The

driver of the Bus has been examined as RW-1. The

Tribunal after perusal of the said photographs and also

NC: 2023:KHC:42046

considering the evidence of RW-1, has rightly held that the

deceased was also contributed 20% to the accident.

b) Secondly, even though the claimants claim that the

deceased was earning Rs.18,000/- 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.

c) Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable.

d) Fourthly, since claimant Nos.2 and 3 are the major

sons, they are not depending upon the income of the

deceased and claimant No.1 alone is depending upon the

income of the deceased, the Tribunal has rightly deducted

50% of the income of the deceased towards personal

expenses.

e) Lastly, in view of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS -V-

VENKATESHAN.V AND OTHERS (MFA 5896/2018 AND CONNECTED

NC: 2023:KHC:42046

MATTERS DISPOSED OF ON 24.8.2020), THE RATE OF interest

granted by the Tribunal at 7% p.a. on the compensation

amount is on the higher side. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

REG:CONTRIBUTORY NEGLIGENCE

9. The case of the claimant that on 23.10.2018 at about

11.15 a.m., when the deceased was riding his two wheeler

bearing Registration No.KA-02-EC-3874 from Kunigal side

towards Bidanigere side, while so riding at Bidanigere

village the deceased had ridden his two wheeler towards R

Gowda's Petrol Bunk by taking his two wheeler to the right

turn by following all the traffic rules with indicators and

signals and after passing the said NH-75 road when the

deceased was riding his two wheeler on the right footpath

of NH-75 road and at the same point of time, the driver of

NC: 2023:KHC:42046

KSRTC Bus bearing Registration No.KA-09-F-5148 came

from Nelamangala side towards Kunigal side by its driver

driving rash and negligent manner and came to the

extreme foot path side and dashed against the deceased

two wheeler. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed to

the injuries. To prove the case of the claimants, claimant

No.1, wife examined herself as PW-1 and produced 7

documents. The respondents have examined driver of the

Bus as RW-1 and produced two documents.

10. As per Ex.P2-spot mahazar with sketch shows that

the accident had occurred on foot path that is left side of

KSRTC Bus. As per Ex.R1-three photos with one CD

produced by the respondent also discloses that the

accident had occurred on the left side foot path. According

to the complaint and FIR produced at Ex.P1, it is very clear

that at the time of the accident, the deceased in order to

fill petrol to his vehicle towards right side of the road by

switch on indicator and without seeing the vehicle coming

- 10 -

NC: 2023:KHC:42046

in the main road, suddenly turned his vehicle towards right

side. At that time, the Bus came from opposite direction

could have stopped the Bus by seeing the deceased.

Having regard to the manner in which the Bus was being

driven as well as the deceased who ride his motorcycle, I

am of the opinion that the greater degree of negligence is

attributable to the driver of the Bus. Therefore, both driver

of the Bus as well as the deceased were contributed to the

accident. Accordingly, the Tribunal is justified in holding

that the deceased was also contributed negligence to an

extent of 20% and the driver of the Bus was contributed

negligence to an extent of 80% to the accident. There is

no error in the finding given by the Tribunal and therefore,

the judgment passed by the Tribunal in respect of the

contributory negligence is hereby confirmed.

- 11 -

NC: 2023:KHC:42046

REG:QUANTUM OF COMPENSATON

11. The claimants claim that deceased was earning

Rs.18,000/- per month. But they have not produced any

documents to prove the income of the deceased. In the

absence of proof of income, the notional income has to be

assessed. As per the guidelines issued by the Karnataka

State Legal Services Authority, for the accident taken

place in the year 2018, the notional income of the

deceased has to be taken at Rs.12,500/- p.m. The

Tribunal in view of the law laid down by the Constitution

Bench of the Supreme Court in NATIONAL INSURANCE CO.

LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], has

rightly added 25% of the income of the deceased towards

future prospects. Thus, the monthly income comes to

Rs.15,625/-. The Tribunal has also rightly deducted 50%

of the income of the deceased towards personal expenses.

Thus, the monthly income comes to Rs.7,813/-. The

deceased was aged about 50 years at the time of the

accident and multiplier applicable to his age group is '13'.

- 12 -

NC: 2023:KHC:42046

Thus, the claimants are entitled to compensation of

Rs.12,18,828/- (Rs.7,813*12*13) on account of 'loss of

dependency'.

12. In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of estate'

and compensation of Rs.15,000/- on account of 'funeral

expenses'.

13. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra), claimant

No.1, husband of the deceased is entitled for

compensation of Rs.40,000/- under the head of 'loss of

spousal consortium'. claimant Nos.2 and 3, children of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of parental consortium'.

- 13 -

NC: 2023:KHC:42046

14. Thus, the claimants are entitled to the following

compensation:

           Compensation under           Amount in
             different Heads              (Rs.)

          Loss of dependency             12,18,828

          Funeral expenses                   15,000

          Loss of estate                     15,000

          Loss of spousal                    40,000
          consortium

          Loss of Parental                   80,000
          consortium

                           Total         13,68,828

          Less 20% contributory            2,73,766
          negligence of claimant

          Total compensation            10,95,062

15. In the result, I pass the following order: