Karnataka High Court
Prathiba Shetty vs T Lokayya on 16 January, 2024
-1-
NC: 2024:KHC:2091
MFA No. 7801 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.7801 OF 2014(MV-D)
BETWEEN:
1. PRATHIBA SHETTY,
AGED ABOUT 29 YEARS,
W/O SUBHASH SHETTY.
2. CHIRAG,
AGED ABOUT 6 YEARS,
S/O SUBASH SHETTY.
3. RAGHU SHETTY,
AGED ABOUT 61 YEARS,
S/O VASU SHETTY.
4. SMT. SHASHIKALA,
AGED ABOUT 59 YEARS,
W/O RAGHU SHETTY.
APPELLANT NO.2
IS THE MINOR CHILD OF LATE
SUBHASH SHETTY,
Digitally
signed by REP. BY HIS MOTEHR NATURAL GUARDIAN
BHARATHI S SMT. PRATHIBA SHETTY APPELLANT NO.1
Location:
HIGH COURT
OF ALL ARE R/AT SRI DURGA,
KARNATAKA
KEMRAL POST, KEMRAL VILLAGE
VIA HALEYANGADY,
MANGALORE - 575 001.
...APPELLANTS
(BY SRI. KARUNAKAR P., ADVOCATE)
AND:
1. T. LOKAYYA,
AGED ABOUT 61 YEARS,
S/O LATE SHIVAPPA GOWDA,
DRIVER, R/AT TAMBALAJE HOUSE,
-2-
NC: 2024:KHC:2091
MFA No. 7801 of 2014
SHIBAJE VILLAGE,
BELTHANGADY TALUK - 574 214.
2. THE MANAGING DIRECTOR,
K.S.R.T.C, K.H. ROAD,
BANGALORE - 560 001.
...RESPONDENTS
(BY SRI. G. LAKSHMEESH RAO, ADVOCATE FOR R2;
VIDE ORDER DATED 27.02.2017, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:18.02.2014 PASSED IN MVC
NO.947/2010 ON THE FILE OF THE III ADDITIONAL DISTRICT AND
SESSION JUDGE, MEMBER,MACT, D.K, MANGALORE, 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
The above appeal is filed by the claimant challenging the
judgment and award dated 18.02.2014 passed in
MVC.No.947/2010 by the III Additional District and Sessions
Judge and MACT - IV D.K, Mangaluru1.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of the
present appeal are that on 05.05.2010 one Subhash R Shetty2
Hereinafter referred to as the 'Tribunal'
hereinafter referred as 'deceased'
NC: 2024:KHC:2091
was driving Maruthi Omni bearing Reg.No. KA-20B-4084 and
when he reached Belthagady taluk on Dharmasthala-Kokkada
road a KSRTC bus bearing Reg.No. KA-M-19-F2426 being
driven in a rash and negligent manner came and hit the vehicle
being driven by the deceased, as a result of which the deceased
sustained grievous injuries and succumbed to the same.
4. Claiming compensation for the death of the deceased
his wife, son and parents filed a claim petition before the
Tribunal1, arraying the driver of the bus as Respondent No.1
and KSRTC as Respondent No.2. The wife - claimant No.1
examined himself has PW.1, Ex.P.1 to Ex.P.17 were marked on
evidence. The driver was examined as marked RW.1 and other
two are the witnesses were examined as RW.2 and RW.3. The
Tribunal, vide judgment and award dated 18.02.2014 has
recorded a finding that the driver of the bus was negligent to
the extent of 60% in causing the accident and driver of the
Omni i.e., deceased was negligent to the extent of 40%. With
regard to the quantum of compensation, the Tribunal assessed
the compensation in sum of Rs.17,23,496/-. However, having
regard to the finding on negligence a sum of Rs.10,00,000/-
was ordered to be paid by Respondent No.2 - KSRTC to the
NC: 2024:KHC:2091
claimants. Being aggrieved the present appeal is filed by the
claimants.
5. Submissions of the learned counsel for the Appellants
- claimants and of learned counsel for Respondent No.2 -
KSRTC have been heard. The question that arises for
consideration is, 'whether the judgment passed by the Tribunal
is liable to be interfered with?'
6. The Tribunal while considering the aspects regarding
negligence, has noticed that the width of the tar road is 16 feet
and the bus was having three feet footpath on its left hand side
and the Maruthi Omni was having four feet footpath left on its
left hand side. The Tribunal has further appreciated the
evidence of RW.1 and having noticed the manner in which the
accident has occurred has recorded a finding that the driver of
the bus was negligent to the extent of 60% and the driver of
the Maruthi Omni to the extent of 40% which finding is just and
proper.
7. With regard to the income of the deceased the Tribunal
has noticed that the deceased was stated to be an LIC agent
and the income for the year 2009-10 was stated as
Rs.1,82,740/- and for the year 2008-09 as Rs.1,28,673/-. The
NC: 2024:KHC:2091
Tribunal has taken the average of the same and assessed the
income at Rs.1,55,671/- per annum. Since the deceased was
married, 1/3 rd was deducted towards personal expenses and
the income was assessed at Rs.1,03,781/- per annum for the
purpose of calculation of loss dependency. However, it is
noticed that future prospects has not been added as per the
Constitution Bench judgment of the Hon'ble Supreme Court in
the case of NATIONAL INSURANCE COMPANY LIMITED
V/S PRANAY SETHI AND ORS3.
8. Having regard to the fact that the deceased was aged
about 34 years, 40% is required to be added towards future
prospects and hence, a sum of Rs.41,513/- is required to be
added. In view of the same, the income for the purpose of
calculation of loss of dependency of the deceased is
re-assessed at Rs.1,45,294/- per annum. Having regard to the
fact that the deceased was aged about 34 years the multiplier
as assessed by the Tribunal is 16 which is just and proper.
Accordingly the loss of dependency is calculated at
(1,45,294 X 16)= 23,24,704/-.
(2017)16 SCC 680.
NC: 2024:KHC:2091
9. The dependents of the deceased are wife, son and
parents. Having regard to the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL INSURANCE
COMPANY. LTD. V/S NANU RAM ALIAS CHUBRU RAM AND
ORS4, loss of consortium is required to be re-assessed by
awarding Rs.40,000/- each for the dependents. Hence, the
same is re-assessed as (40,000 X 4) = 1,60,000/- and further
sum of Rs.15,000/- each is required to be awarded towards the
loss of estate and funeral expenses.
10. Accordingly, the total compensation under various
heads is re-assessed as follows:
Sl.No. Heads Amount awarded by Amount awarded
the Tribunal (`) by this Court (`)
1. Loss of dependency 1660496.00 2324704.00
2. Loss of consortium 10000.00 160000.00
3. Loss of estate 25000.00 15000.00
4. Funeral and 5000.00 15000.00
obsequies expense
5. Transportation 3000.00 0.00
6. Loss of love and 20000.00 0.00
affection
Total 1723496.00 2514704.00
(2018) 18 SCC 130.
NC: 2024:KHC:2091
11. In view of the finding of the negligence in the ratio
of 60 : 40 vis-à-vis the driver of the bus and the driver of the
Maruthi Omni which finding of the Tribunal has been affirmed
herein, the appellants-claimants are entitled to 60% of the
amount as awarded by the Tribunal as also as enhanced by
this Court. Hence, the appellants-claimants are entitled to 60%
of the enhanced compensation of `25,14,704/- amounting to
`15,08,822.4/- which is rounded off to `15,08,823/-.
11. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated 18.02.2014 passed in
MVC.No.947/2010 by the III Additional District and
Sessions Judge and MACT - IV D.K, Mangaluru, is
modified to the extent stated herein. In all other
respects, the judgment and award of the Tribunal
remain unaltered;
iii) The appellants/claimants are entitled to a total
compensation of `15,08,823/- (including the amount
awarded by the Tribunal and enhanced by this Court)
together with interest at 6% per annum from the date of
petition till the date of payment;
NC: 2024:KHC:2091
iv) The Respondent No.2 - KSRTC is directed to deposit a
balance total compensation together with accrued
interest after deducting the amounts already deposited
pursuant to the judgment of the Tribunal within eight
weeks from the date of receipt of a copy of this order;
v) The disbursement of compensation shall be in terms of
the award of the Tribunal;
vi) No costs.
Sd/-
JUDGE
PNV
CT:SNN
