Karnataka High Court
The Manaing Director vs Bhimaraya @ Bheemaraya on 24 July, 2024
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NC: 2024:KHC-K:5276
MFA No. 201619 of 2021
C/W MFA No. 201688 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 201619 OF 2021 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 201688 OF 2021 (MV-D)
IN M.F.A.NO.201619 OF 2021:
BETWEEN:
THE MANAGING DIRECTOR NEKRTC,
DIVISIONAL OFFICE, VIJAYAPURA.
(NOW REPRESENTED BY CHIEF LAW OFFICER,
CENTRAL OFFICE, KALABURAGI).
Digitally signed
...APPELLANT
by KHAJAAMEEN (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
L MALAGHAN
Location: HIGH
COURT OF AND:
KARNATAKA
BHIMARAYA @ BHEEMARAYA
S/O CHANNABASAPPA
@ CHANABASAPPA MADIVAL @ MADIWALA,
AGE: 52 YEARS, OCC: COOLIE AND AGRICULTURE,
R/O. MARADAGI(SA), JEWARAGI TQ.,
NOW RESIDING AT RADHA KRISHNA NAGAR,
IBRAHIMPUR RAILWAY GATE, VIJAYAPURA-586101.
...RESPONDENT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE )
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MFA No. 201619 of 2021
C/W MFA No. 201688 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 28.07.2021 IN MVC NO. 966/2017 PASSED BY THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MACT NO. XV
AT VIJAYAPURA.
IN M.F.A.NO.201688/2021:
BETWEEN:
BHIMARAYA @ BHEEMARAYA
S/O CHANNABASAPPA@ CHANABASAPPA MADIVAL
@ MADIWALA, AGE: 51 YEARS, OCC: COOLIE AND
AGRICULTURE, R/O. MARADAGI (SA) TQ. JEWARGI,
NOW RESIDING AT RADHA KRISHNA NAGAR,
IBRAHIMPUR RAILWAY GATE, VIJAYAPURA 586102
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
THE MANAGING DIRECTOR OF NEKRTC
DIVISIONAL OFFICE, VIJAYAPURA-586101.
...RESPONDENT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
CALL FOR THE RECORDS. B) TO MODIFY THE JUDGMENT AND
AWARD DATED 28.07.2021 PASSED IN MVC NO. 966/2017 ON
THE FILE OF THE COURT OF THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER MACT XV, VIJAYAPUR AT VIJAYAPUR. AND
ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION
AMOUNT OF RS. 10,30,000/- ONLY AS CLAIMED BY THE
APPELLANT BEFORE THIS HON'BLE COURT. C) ORDER FOR
COSTS OF THIS APPEAL. AND ETC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 201619 of 2021
C/W MFA No. 201688 of 2021
CORAM: THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
Both these appeals arise out of the judgment and
award passed by the Motor Accident Claims Tribunal
No.XV, Vijayapura (for short, Tribunal) in M.V.C.No.966 of
2017 dated 28.07.2021. Both the appeals are filed
challenging the quantum of compensation awarded by the
Tribunal.
2. Brief facts of the case are that on 13.01.2017
at about 8.30 p.m., on Managuli-Vijayapura road, near
Ibrahimpur railway gate, B.C.Devappa met with an
accident due to rash and negligent driving of Bus
belonging to the Respondent-Corporation. As a result of
which, he sustained grievous injuries and while undergoing
treatment, he succumbed to the injuries on the same day,
at District Hospital at Vijayapura. The claimant being the
younger brother had filed this petition for awarding the
compensation.
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3. The Respondent-Corporation has denied
contents of the claim petition and prayed for dismissal of
the same.
4. The Tribunal had framed necessary issues.
5. The claimant examined PWs-1 and 2 and got
marked Exs.P1 to P6 and closed his evidence. The
Respondent has not lead any evidence.
6. The Tribunal, after hearing both the parties and
appreciating oral and documentary evidence, assessed the
age of the deceased as 70 years; his income per month as
Rs.8,000/-; applied multiplier as '5'; deducted 50% of his
income towards personal expenses and awarded
compensation of Rs.2,70,000/-.
7. I have heard the arguments of both the parties.
8. The learned counsel for the Insurer has
contended that claimant is a brother of the deceased. In
his cross-examination, he has stated that he was not
depending upon the deceased. Hence, he was not
dependant and maintained the petition for compensation.
The Tribunal has not assessed income of the deceased.
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He was aged about 70 years and was unable to do any
work. Still, the Tribunal had assessed income as
Rs.8,000/- per month, which is erroneous. The amount of
compensation assessed is exorbitant. Therefore, prayed
for setting aside the same.
9. The learned counsel for claimant would submit
that brother comes under the category of "legal heir". He
is a Class-II heir under the Hindu Succession Act. It is not
necessary that he should be completely depending upon
the earnings of the deceased. If the deceased had
contributed is earnings to the family, then members of the
family could be considered as a dependant. Deceased was
unmarried and claimant is also unmarried and both of
them were residing together. Therefore, he was
dependant upon the deceased.
The learned counsel for the claimant has further
submitted that the Tribunal had not assessed the income
of the deceased properly merely he was aged about 70
years, do not mean that he was unemployed or was not
doing any work. The Tribunal has not awarded just
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compensation under the conventional head. Hence,
prayed for enhancement of the compensation. He relied
on the judgment in the case of National Insurance
Company Limited Vs. Birender and others1 and the
judgment rendered by the Co-ordinate Bench of this Court
in M.F.A.No.201138 of 2018 dated 22.06.2023.
10. The fact of accident, death of brother of the
deceased in the said accident are not in dispute.
Relationship between the deceased and petitioner is also
not in dispute.
11. In the case of National Insurance Company
Limited Vs. Birender and others 2, the Hon'ble Apex Court
at paragraph No.14 has held as under:
"It is thus settled by now that the legal
representatives of the deceased have a right to
apply for compensation. Having said that, it must
necessarily follow that even the major married and
earning sons of the deceased being legal
representatives have a right to apply for
compensation and it would be the bounden duty of
(2020) 11 SCC 356
(2020) 11 SCC 356
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the Tribunal to consider the application irrespective
of the fact whether the concerned legal
representative was fully dependant on the deceased
and not to limit the claim towards conventional
heads only. The evidence on record in the present
case would suggest that the claimants were
working as agricultural labourers on contract basis
and were earning meagre income between
Rs.1,00,000/ and Rs.1,50,000/ per annum. In that
sense, they were largely dependant on the earning
of their mother and in fact, were staying with her,
who met with an accident at the young age of 48
years".
12. The principle law laid down in the said
judgment is applicable to the facts of the present case.
13. The learned Advocate for claimant has
produced the judgment passed by the Co-ordinate Bench
of this Court in the case of Sri Siddaramaya Vs. Shri
Muttappa and another in M.F.A.No.201138 of 2018 (MV-D)
dated 22.06.2023. Relying on the law laid down in the
case of Birender (referred supra), the Co-ordinate Bench
of this Court held that even brother is considered as legal
heir as well as dependant. Therefore, the law laid down in
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the judgment of the Co-ordinate Bench supports the
contention of the claimant. Therefore, the submission of
the learned counsel for the Corporation that claimant was
not dependant and hence, he is not entitled to claim
compensation is not tenable.
14. The Tribunal has assessed the income as
Rs.8,000/- per month. As per the chart prepared by the
Karnataka State Legal Services Authority in respect of
notional income, which is generally accepted for by
stakeholders for settling down the dispute in Lok-Adalath
as well as the Court settlement, income of a person who
met with an accident during the year 2017 is taken as
Rs.10,250/- per month. It could be applied to the facts of
the present case. The learned counsel for the Corporation
submits that deceased was aged about 70 years at the
time of death. He was incapable of doing any work.
Therefore, 50% of the same needs to be considered for
assessment of the compensation. The said submission is
not acceptable. Claimant in the claim petition as well as in
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the evidence has stated that deceased was working as
agricultural Coolie and earning Rs.10,000/- per month.
Except the said income, he has no other income and it is
also not the case of the claimant or respondent that
someone was maintaining him during his lifetime. For his
livelihood, he must be doing some work. Whatever the
income assessed by the Tribunal, is notional income and
not an actual income. Under these circumstances, the
submission that notional income has to be taken as 50%
of his earnings is not sustainable.
15. It is not in dispute that multiplier applicable in
this case is '5' and 50% of the income is to be deducted
towards personal expenses since he was unmarried. On
the basis of the said figures, compensation under the head
'loss of dependency' is calculated.
16. The Tribunal has not followed the law laid down
in the case of Pranay Sethi (referred supra) to award
compensation under conventional heads, which needs to
be awarded.
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17. For the aforesaid discussion, the following
amount of compensation is awarded:
Sl. Heads of Compensation Amount
No. (in Rs.)
1 Loss of dependency 3,00,000
2 Loss of estate 15,000
3 Loss of consortium 40,000
4 Funeral expenses 15,000
Total 3,70,000
Award by Tribunal 2,70,000
Enhancement 1,00,000
Claimant is entitled for interest on the said amount
at the rate of 6% per annum. The respondent is liable to
pay the said amount.
18. For the aforesaid discussion, I pass the following:
ORDER
i. M.F.A.No.201619 of 2021 is dismissed.
ii. M.F.A.No.201688 of 2021 is allowed in part.
iii. The impugned judgment and award passed by
the Motor Accident Claims Tribunal No.XV,
Vijayapura in M.V.C.No.966 of 2017 dated
28.07.2021 is modified;
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(a) The claimant is entitled for enhanced
compensation of Rs.1,00,000/- (Rupees
One Lakh only) with interest at the rate of
6% per annum from the date of petition till
its realization.
iv. The Respondent is liable to pay the said maount
and Respondent is directed to deposit the said
amount within a period of Six weeks from the
date of release of order by this Court.
v. Apportionment, deposit and release of the
amount are as ordered by the Tribunal.
vi. Whatever the amount deposited by the
Corporation shall be transmitted to the Tribunal.
The Registry is directed to send back the Trial
Court records along with copy of this judgment.
Sd/-
JUDGE
DH
CT:PK
