Karnataka High Court
The Divisional Controller North West vs Shivavva @ Shivakka W/O. Holebasayya on 4 June, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102622 of 2017
C/W MFA No. 101758 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102622 OF 2017 C/W
MISCELLANEOUS FIRST APPEAL NO.101758 OF 2017 (MV-D)
IN MFA NO.102622 OF 2017
BETWEEN:
1. SHIVAVVA @ SHIVAKKA
W/O: HOLEBASAYYA @ BASAYYA EMMI,
AGE: 46 YEARS, OCC: HOUSE HOLD WORK,
2. MAHANTESH @ MAHANTAYYA
S/O: HOLEBASAYYA @ BASAYYA EMMI,
AGE: 36 YEARS, OCC: AGRICULTURIST,
3. SANGAYYA S/O. HOLEBASAYYA @ BASAYYA EMMI,
AGE: 36 YEARS, OCC: AGRICULTURIST,
ALL ARE R/O: SHIRUR VILLAGE,
TQ. AND DIST: BAGALKOTE-587250.
- APPELLANTS
Digitally signed by (BY SRI B.C. JNANAYYA SWAMI, ADVOCATE)
VINAYAKA B V
Location: HIGH AND:
COURT OF
KARNATAKA
THE DIVISIONAL MANAGER,
N.W.K.R.T.C NAVANAGAR,
BAGALKOTE-587250.
- RESPONDENT
(BY SRI M.B. KANAVAI, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 26.11.2016 PASSED IN M.V.C.
NO.408/2013 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-II, BAGALKOT, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.,
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MFA No. 102622 of 2017
C/W MFA No. 101758 of 2017
IN MFA NO.101758 OF 2017
BETWEEN:
THE DIVISIONAL CONTROLLER,
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION,
N.W.K.R.T.C., NAVANAGAR,
BAGALKOT-587101.
- APPELLANT
(BY SRI .M.B. KANAVI, ADVOCATE)
AND:
1. SHIVAVVA @ SHIVAKKA
W/O: HOLEBASAYYA @ BASAYYA EMMI,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
2. MAHANTESH @ MAHANTAYYA
S/O: HOLEBASAYYA @ BASAYYA EMMI,
AGE: 36 YEARS, OCC: AGRICULTURE,
3. SANGAYYA,
S/O. HOLEBASATTA @ BASAYYA EMMI,
AGE: 32 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: SHIRUR VILLAGE,
TQ. AND DIST: BAGALKOT-587101).
- RESPONDENTS
(BY SRI B.C. JNANAYYA SWAMI, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 26.11.2016 PASSED IN MVC
NO.408/2013 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-II, BAGALKOT, AWARDING THE COMPENSATION
OF RS.15,45,340/-, ALONG WITH INTEREST AT THE RATE OF 6%
FROM THE DATE OF PETITION TO TILL COMPLETE PAYMENT AND
ETC.,
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
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MFA No. 102622 of 2017
C/W MFA No. 101758 of 2017
JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for both parties, the same are taken
up for final disposal.
2. Parties shall be referred as per their ranking before the
Tribunal, for the sake of convenience.
3. M.F.A. No. 102622/2017 is filed by the appellants/
claimants being dissatisfied with the quantum of compensation
under the impugned judgment and award in M.V.C. No.
408/2013 dated 26.11.2016 by the learned 4th Addl. Dist. &
Sessions Judge & Addl. MACT-II, Bagalkot (for short, 'the
Tribunal') and also questioning fastening of contributory
negligence of the deceased in the ratio of 25% and accordingly
seeking enhancement of compensation.
4. M.F.A. No. 101758/2017 is filed by the appellant/
Divisional Controller, NWKRTC, Navanagar, Bagalkot (for short
'Corporation') questioning the liability fastened on it in the ratio
of 75%, out of the quantum of compensation awarded by the
Tribunal and sought for dismissal of the claim petition.
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5. Brief facts of the case leading to filing of the appeals are
that the appellants/claimants filed claim petition under Section
166 of M.V. Act claiming compensation for the death of
Holebasayya @ Basayya Emmi in the road traffic accident which
took place on 04.06.2013. It is stated that on 04.06.2013 the
deceased, as a passenger, was proceeding from Bilagi to
Bagalkot in the offending bus bearing No.KA-29-F-871. When
the bus reached near Navanagar bus stand the driver drove the
bus with high speed, rash and negligent manner without
observing the road humps due to which the deceased who was
standing near the front door of the bus fell down and sustained
grievous injuries over his right leg and left part of the body.
Immediately he was shifted to Kerudi Hospital wherein left leg
was amputated. However, Holebasayya @ Basayya Emmi
succumbed to the injuries in the hospital on 06.06.2013 while
he was under treatment. It is stated that deceased was hale
and healthy, aged 52 years, working as a Driver in the office of
Rehabilitation, Upper Krishna Project, Bilagi; he was getting
salary of Rs.23,735/- per month; deceased was also an
agriculturist owning agricultural properties bearing R.S. No.
57/3 and 46 of Shirur village and was cultivating agricultural
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land bearing R.S. No. 99/1, 100/2 and 98/1 of Shirur village on
lease basis and earning Rs.15,000/- per month. Totally, he
was earning monthly income of Rs.38,735/-. Deceased was the
only earning member in the family. Claimants are the wife and
children of the deceased. Due to his death, claimants lost their
dependency. Respondent-Corporation is the owner of the
offending bus and driver was chargesheeted for causing the
accident. Therefore, the respondent is liable to pay
compensation to the petitioners. On all these grounds they
prayed for allowing claim petition.
6. The respondent-Corporation appeared through its counsel
and filed written statement denying the averments of the
petition as false, frivolous and vexatious. The respondent
admitted that it is the owner of the offending bus. The
respondent further contended that negligence of the deceased
is the root cause for the accident, the driver of the bus, after
the passengers deboarded at the Court Stop, by cautiously
observing all traffic rules and the road humps, was driving the
bus slowly. At that time, deceased who was sitting near the
front door side seat tried to get down from the bus without
requesting the driver or conductor to stop the bus. In his
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attempt to get down from the moving bus, he fell down from
the bus and the accident took place due to the sole negligence
of himself. In this regard, Conductor of the bus lodged a
complaint before the Traffic Police, Bagalkot and collected
endorsement for having lodged the complaint. Inspite of it, the
Investigating Officer, without considering the complaint lodged
by the Conductor of the bus and without considering the
statements given by three witnesses at the place of incident,
chargesheeted driver of the offending bus for the cause of
accident. On all these grounds, sought for dismissal of the
claim petition.
7. On the basis of the pleadings, the Tribunal has framed
the following issues.
1. Whether the petitioners prove that, on 04.06.2013 when
he was proceeding in a bus at on Mini Vidan Soudha to
IBP Petrol pump road, near fire office cross, that time at
about 12:30 hours, the driver of the bus bearing No.KA-
29-F-871 while proceeding from the side direction drove
the same in rash and negligent manner dashed against
the said vehicle and as a result deceased sustained
injuries and succumbed to the injuries?
2. Whether the petitioner is entitled for compensation
amount? If so, from whom?
3. What order or award?
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8. To substantiate the case of the petitioners, petitioner
no.2 got examined himself as PW1, Dr.S.B.Chimmanakatti as
PW2 and got marked documents as per Exs.P.1 to P.16. On
closure of petitioners' side evidence, the Driver and Conductor
of the offending vehicle got examined as RW1 and RW2,
examined one witness as RW3 and got 12 marked documents
as per Ex.R.1 to Ex.R.12.
9. Having heard the arguments of both sides and on perusal
of records, the Tribunal by the impugned judgment and award,
has awarded compensation of Rs.15,45,340/-. The Tribunal
observed that the petitioners are not entitled for compensation
to the extent of negligence contributed by the deceased for the
cause of accident, i.e., in the ratio of 25%. Being aggrieved by
the same, the claimants as well as the Corporation are in
appeal.
10. Learned counsel Sri M.B. Kanavi, for the appellant/
Corporation would submit that the impugned judgment is
illegal, incorrect, perverse, capracious and arbitrary. The
Tribunal has awarded exorbitant compensation under all the
heads. The Tribunal has failed to appreciate the evidence
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adduced on behalf of the Corporation, i.e., evidence of Driver
and Conductor of the bus stating that accident took place
purely on the negligence of the deceased in trying to get down
from the moving bus without requesting the Driver or
Conductor to stop the bus. The respondent is not liable to pay
any compensation to the petitioners. On all these grounds, he
sought to allow the appeal of the Corporation.
11. Learned counsel for the appellants/claimants would
submit that the deceased was working as a Driver in the office
of Rehabilitation, Upper Krishna Project, Bilagi and getting
salary of Rs.23,735/-; was owning agricultural properties and
earning Rs.15,000/- from the said land. However, the Tribunal
has not considered the same and awarded meager
compensation towards loss of income. He further submitted
that the Tribunal has failed to appreciate the materials on
record regarding the negligence because the accident occurred
near bus stand, deceased was standing on the foot board of the
bus, the driver without observing the road humps, drove the
bus rashly and because of that, deceased fell down from the
bus. The Tribunal has not appreciated the said aspect and
fixed contributory negligence on the part of the deceased
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without any legally acceptable evidence before the Tribunal.
The Tribunal has not awarded compensation towards pain &
suffering and mental shock caused to the claimants because of
the death of deceased, loss of love affection, future prospects
of the deceased, etc. On all these grounds the learned counsel
sought to allow the appeal.
12. Having heard the arguments of both sides and on perusal
of the appeal papers and the records of the Tribunal, the
following points would arise for our consideration.
1) Whether the Tribunal is justified in assessing
the contributory negligence of the deceased at
the rate of 25%?
2) Whether the appellants/claimants are entitled
for enhancement of compensation as sought
for?
3) What order or award?
13. Our answer to the above points are as under:
Point No.1: In the negative
Point No.2: Partly in the affirmative
Point No.3: As per final order.
14. Point No.1: We have examined the materials placed by
both parties. It is the case of the appellants/claimants that on
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04.06.2013 when Holebasayya @ Basayya Emmi-the deceased,
was proceeding in the bus bearing No.KA-29-F-871, the driver
of the bus drove the same in a rash and negligent manner with
high speed without observing road humps. As a result,
Holebasayya-the deceased, who was standing near the front
door of the bus, fell down and sustained grievous injuries.
Immediately after the accident he was shifted to Kerudi
Hospital. In the hospital, left leg was amputated on
04.06.2013 itself. Despite, Holebasayya succumbed to the
injuries in the hospital on 06.06.2013, while he was under
treatment.
15. The respondent filed its statement of objections
contending that driver of the bus after de-boarding passengers
at the Court stop, drove the bus slowly and cautiously by
observing all traffic rules. But, at that time Holebasayya, who
was standing in front door foot board, tried to get down from
the bus without requesting either the driver or the conductor to
stop the bus. In his attempt to get down from the moving bus,
he fell down from the bus and the accident took place due to
the sole negligence of the deceased himself. In this regard,
conductor of the bus lodged a complaint before the Traffic
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Police, Bagalkot and he collected the endorsement for having
lodged complaint. Inspite of it, the Investigating Officer
without considering the complaint filed by the conductor of the
bus and without considering the statement given by three
witnesses at the place of accident, chargesheeted the driver of
the bus for the cause of accident. On these grounds sought for
dismissal of the claim petition.
16. To substantiate the case of the claimant, two witnesses
were examined as PWs.1 and 2, 16 documents were marked as
Exs.P.1 to P.16. To prove the defence of the respondents,
three witnesses were examined as RWs.1 to 3; and got marked
12 documents as Exs.R.1 to R.12. A perusal of the material
placed before the Court makes it clear that on the basis of the
complaint filed by one Mahantayya son of Basayya, Bagalkot
Town Traffic Police have registered the case for the offences
punishable under Sections 279, 337 and 338 of IPC against the
driver of the bus bearing No.KA-29-F-871 and submitted the
FIR to the Court. Thereafter, the Police have rushed to the
spot, conducted spot panchanama, prepared rough sketch in
presence of panchas, obtained IMV report, conducted inquest
panchanama, obtained PM report, recorded the statement of
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witnesses including further statement of the complainant and
submitted the charge sheet against the driver of the bus for the
commission of the offence punishable under Sections 279, 337,
338 and 304-A of IPC. The respondent has not disputed this
accident.
17. Before appreciating the defence taken by the respondent,
it is appropriate to mention here as to the provisions of Rule 13
of the Karnataka Motor Vehicle Rules, 1989.
"13. Duties and conduct of driver of transport vehicle.-
The driver of a transport vehicle while on duty,-
(k) shall not, when bringing the vehicle to rest for the
purpose of picking up or setting down any passenger at
or near the place where another vehicle I sat rest for the
same purpose, driver the driver or the conductor of the
other vehicle or any person mounting or preparing to
amount thereon or alighting therefrom, and shall bring
the vehicle to rest in front or behind the other vehicle
and on the left hand side of the road or place and shall
draw it up as near the kerb as possible;
18. In the case on hand, RW1, the driver of the bus has
deposed that he has not committed any offence. The accident
occurred due to the sole negligence act on the part of the
deceased. In this regard, he has lodged a complaint to the
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higher Police Officers, Bagalkot, to the Home Minister of
Karnataka State and also lodged a complaint to the Traffic
Police and obtained endorsement in this regard. One Shivu
Laxman Bandivaddar, Girish Mallappa Hebbal and Suresh
Sangappagoudar, who are the eyewitnesses, have given their
statement that the accident occurred due to the fault of the
deceased himself. Further he deposed that the investigating
officer has submitted false charge sheet against him.
19. RW2 has stated that driver of the bus drove the bus in
slow manner at the time of accident. The bus consisted two
doors. Without any request the deceased Holebasayya tried to
get down from the moving bus and fell down. He has also
deposed that in this regard the driver of the bus lodged a
complaint to the concerned police, higher Police Officers and to
the Home Minister of the State. The three eyewitnesses, Shivu
Laxman Bandivaddar, Girish Mallappa Hebbal and Suresh
Sangappagoudar have given their statement as to the fault of
the deceased. Further they have stated that Police have
submitted a false charge sheet against the driver of the bus.
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20. RW3-Girish Mallappa Hebbal has deposed in his evidence
that he was one of the passengers in the bus at the time of
accident. When the bus came near Fire Office, the deceased all
of a sudden tried to get down from the bus and fell down. The
accident occurred due to the fault of the deceased. Apart from
his oral evidence, the respondents have produced documents
as Exs.R.1 to R.12.
21. It is not in dispute that the Investigating Officer, after
thorough investigation, has laid charge sheet against the driver
for commission of the offences punishable under Section 279,
337, 338 and 304-A IPC. But RWs.1 and 2 have submitted that
the Investigating Officer has submitted false charge sheet
against them. It is admitted fact that the charge sheet
submitted by the concerned Police is not challenged by the
respondent. RWs.1 and 2 have deposed in their evidence that
they have filed a complaint to the Police and Police have issued
an endorsement. The said copy of the complaint is marked as
Ex.R.5. The Police have issued an endorsement as per Ex.R.6,
that they have registered the case in respect of the accident in
Crime No. 28/2013 and investigation is in progress. The
respondents have also submitted complaint to the
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Superintendent of Police and also to the Home Minister. The
Circle Inspector of Police has issued an endorsement as per
Ex.R.8 stating that Crime No. 28/2013 is registered as to the
alleged accident. Further, the respondents contended that one
Shivu Laxman Bandivaddar, Girish Mallappa Hebbal and Suresh
Sangappagoudar have witnessed this accident. They have also
given their statement as per Ex.R.7 in which they have stated
that the accident occurred due to the negligence on the part of
the deceased.
22. A perusal of Ex.R.7, the statement of Shivu Laxman
Bandivaddar, Girish Mallappa Hebbal and Suresh
Sangappagoudar, would not disclose name of the person who
has recorded this statement. The date of recording statement
is also not disclosed so also as to on which date the statement
was prepared, was also not disclosed by the respondent.
Interestingly, in Exs.R.1 and R.3 it is stated that RWs.1 and 2
have obtained the statement of three witnesses, they will
produce the same before the Court at appropriate stage but
name of these three persons stated in Ex.R.8 has not been
disclosed in Ex.R.3. Apart from this, one of the witnesses who
have attested the signature in Ex.R.7-Girish Mallappa Hebbal,
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examined as RW3, in his cross examination, has clearly
admitted that he do not know contents of Ex.R.7. The Police
have not recorded his statement as to this accident and he
cannot say the boundaries of place of accident. Further he has
admitted that he do not know anything about the claim petition
filed by the claimants. The other two witnesses, Shivu Laxman
Bandivaddar and Suresh Sangappagoudar are not examined
before the Court. Since Ex.R.7 has not been recorded by an
authorized person known to law, there is no legal sanctity
attached to this document. Accordingly, Ex.R.7 will not be
helpful to the case of the respondents to prove their defence.
23. Chargesheet-Ex.P.6 reveals that one Jagadish Gokavi and
Eraiah Hadagali are shown as eyewitnesses; Basayya Emmi,
the victim is also an eyewitness; Mahantesh Emmi is the
complainant. The respondents have not examined any of the
material witnesses before the Tribunal to prove their defence.
Therefore, the oral and documentary evidence placed by the
respondents is not sufficient to accept their evidence and
discard the evidence placed by the claimants.
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24. Even if this Court presumes that the deceased
Holebasayya @ Basayya Emmi, tried to get down from the
moving bus through front left side door without requesting
either the driver or the conductor to stop the bus and in his
attempt to get down from the moving bus, he fell down and
hence the accident took place due to the fault of the deceased
himself, then also, the respondents cannot escape from their
liability for the reason that it is the duty of the conductor to
safeguard interest of the passengers traveling in the bus. They
shall not cause or allow the passengers to get down from the
moving bus. It is also the duty of the driver and conductor to
follow the guidelines as enumerated under Rule 13 and 25 of
the Karnataka Motor Vehicle Rules, 1989.
25. In the case on hand instead of complying the guidelines
enumerated under the Karnataka Motor Vehicle Rules, RW2-
conductor of the bus, on the date of accident, was issuing
tickets to the passengers standing near back side door of the
bus. That in view of Sub Rule (16) of Rule 25 of the Karnataka
Motor Vehicle Rules, 1989, the conductor shall issue a ticket
immediately on payment of legal fare or freight by the
passenger except where arrangement outside the vehicle for
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the issue of tickets in advance to the intending passengers on
payment of legal fare has been made.
26. Sub Rule (16) of Rule 25 of the Karnataka Motor Vehicle
Rules, 1989 reads as follows:
"(16) shall issue a ticket immediately on payment of the
legal fare or freight by the passenger except where
arrangement outside the vehicle for the issue of tickets in
advance to the intending passengers on payment of the legal
fare has been made."
27. In the case on hand, as admitted by RW2-conductor of
the bus, he has not issued tickets to all the passengers before
moving the bus. When the bus was moving, the conductor was
issuing tickets without observing the safety of the passengers.
Accordingly, the evidence placed by the respondent itself
reveals that both the driver and conductor of the bus who are
examined before the Tribunal as RWs.1 and 2, failed to
discharge their legal duties and also failed to comply the
aforesaid provisions of the Karnataka Motor Vehicle Rules,
1989. Non-compliance of the aforesaid provisions is an offence
under the General Penal Provisions of Sec.177 of the M.V. Act,
1988.
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28. The Investigating Officer ought to have initiated
proceedings against the driver and conductor of the bus for non
compliance of the aforesaid provisions. However, the
Investigating Officer has not initiated any legal action against
them. However, on thorough investigation, has rightly
submitted the charge sheet against the driver of the bus for
commission of the offence punishable under Sections 279, 337,
338 and 304-A IPC which is in accordance with law and the
same is also proved by the claimants.
29. Viewed from any angle, absolutely there are no legal
evidence before this Court to come to the conclusion that the
accident occurred due to the contributory negligence of the
deceased in the ratio of 25%. On the contrary, the claimants
have proved by placing relevant oral and documentary
evidence before the Court that the accident occurred due to
rash and negligent act on the part of the driver of the bus.
Accordingly, the Tribunal is not justified in assessing the
contributory negligence of the deceased in the ratio of 25%.
Thus, we hold that the accident had occurred only on account
of the rash and negligent driving by the driver of the bus and
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no contributory negligence is attributed against the deceased.
Hence, we answer point no.1 'in the negative".
30. Point No.2: Learned counsel for the claimants would
submit that the deceased was working as driver in the office of
Rehabilitation Centre, Upper Krishna Project, Bilagi and getting
salary of Rs.23,735/- and owning agricultural property and
earning Rs.15,000/- from the said lands. The Tribunal has
failed to consider the said income and also assessed the net
salary of the deceased at Rs.19,955/- which is not just and
proper. On these grounds sought for enhancement of
compensation.
31. With regard to the agricultural income is concerned, PW1-
Mahanntesh Urf Mahantayya, the petitioner no.2 has deposed
that the deceased was having lands in Sy. No. 57/3, 46 and
Re.Sy. No. 99/1 in Shirur village and he was also cultivating the
land on lease basis in Sy. No. 100/2 and 98/1, thereby earning
Rs.15,000/- per month. Additionally, petitioners have also
produced RTC extracts, Exs.P.9 to P.13. A perusal of the RTC
extracts, Exs.P.9 and P.10 reveals that Sy. No. 57 measuring 2
acres 10 guntas situated in Shirur village is standing in the
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name of Holebasayya Emmi and five others, Ex.P.10-RTC
extract pertaining to Sy. No. 46 measuring one acre 5 guntas
situated in Shirur village is also standing in the name of
Holebasayya and five others. Exs.P.11 to P.13 are not standing
in the name of the deceased. Claimants have not placed any
materials to show that the deceased was cultivating the land
Sy. No. 100/2 and 98/1 on lease basis. Oral testimony of PW1
sans supporting evidence is not sufficient to hold that the
deceased was cultivating the above lands on lease basis.
32. Petitioner has not placed any evidence to show that
deceased was earning Rs.15,000/- from agricultural land.
Considering the same, Tribunal has not assessed agriculture of
Rs.15,000/- per month as claimed by the petitioner.
33. With regard to the salary of the deceased is concerned,
the petitioner has produced Ex.P.8, the salary certificate issued
by Rehabilitation Officer, Upper Krishna Project, Bilagi which
reveals that the gross salary of the deceased was Rs.23,735/-
in the month of May, 2013. But the Tribunal has considered
only net salary which is not correct. Out of Rs.23,735/-,
professional tax of Rs.200/- has to be deducted. Then it comes
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to Rs.23,535/- p.m and Rs.2,82,420/- p.a. The Tribunal has
wrongly observed that Income Tax Exemption for an individual
is upto Rs.2,50,000/- instead of Rs.2,00,000/-. For remaining
sum of Rs.82,420/- is concerned, Ex.P.8-salary certificate reveals that
a sum of Rs.120/- is deducted towards Group Insurance Scheme, a
sum of Rs.600/- is deducted towards KGID, a sum of Rs.960/- is
deducted towards LIC, total of all sums comes to Rs.1,680/- per
month and Rs.20,160/- per annum. This amount is exempted from
Income Tax under Section 80C of the Income Tax Act, 1961.
Therefore, the taxable income of the deceased would be 10% on
Rs.62,260/- (Rs.2,82,420/- less Rs.2,20,160/-). If the same is
deducted, the total income of the deceased would be Rs.2,76,194/-
per annum (Rs.62,260/- less Rs.6,226/-; Rs.2,00,000/- + 20,160/- +
Rs.56,034/-).
34. In view of the ratio laid down by the Hon'ble Apex Court
in National Insurance Company Limited Vs. Pranay Sethi
and Others1, 15% of the assessed income is to be added
towards 'future prospects' of the deceased as he was in
permanent job. Then the net income of the deceased would be
Rs.3,17,623/- (Rs.2,76,194/- + Rs.41,429/-). In view of the
AIR 2017 SC 5157
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decision of the Hon'ble Apex Court in Smt. Sarla Verma &
Ors. Vs. Delhi Transport Corporation & Anr.2 1/3rd of the
net income is to be deducted towards personal and living
expenses of the deceased as the dependents are three in
number (Rs.3,17,623/- - Rs.1,05,874/- = Rs.2,11,749/-).
Deceased was aged 52 years as on the date of accident.
Hence, the multiplier '11' applied by the Tribunal is proper.
Thus, the claimants are entitled for a sum of Rs.23,29,239/-
(Rs.2,11,749/- x 11) towards loss of dependency.
35. With regard to award of conventional heads is concerned,
the Tribunal awarded a sum of Rs.10,000/- towards loss of
consortium and a sum of Rs.5,000/- towards loss of estate and
transportation of dead body which is not in consonance with the
decision of the Apex Court in Pranay Sethi (supra) and
Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias
Chuhru Ram & Ors.3. Considering the facts and
circumstances of the case and applying the ratio of the Hon'ble
Apex Court, a sum of Rs.40,000/- each is awarded to the
claimants towards loss of consortium; a sum of Rs.15,000/-
AIR 2009 SC 3104
AIR ONLINE 2018 SC 189
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towards loss of estate and a sum of Rs.15,000/- towards
transportation of dead body and funeral expenses. Thus, the
award of the Tribunal is modified as under:
1. Loss of dependency 23,29,239.00
2. Loss of consortium 1,20,000.00
3. Loss of estate 15,000.00
4. Transportation of dead body and 15,000.00
funeral expenses
Total 24,79,239.00
Accordingly, claimants are entitled for compensation of
Rs.24,79,239/- as against Rs.15,45,340/- with interest at 6%
p.a. from the date of claim petition till realization. Accordingly,
we answer point no.2 'partly in the affirmative'.
36. Point No.3: For the aforesaid reasons and discussions, we
proceed to pass the following:
ORDER
M.F.A. No. 101758/2017 preferred by the Corporation is
dismissed.
M.F.A. No. 102622/2017 preferred by the appellants/
claimants is allowed in part by modifying the judgment and
award of the Tribunal holding that the claimants are entitled for
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compensation of Rs.24,79,239/-as against Rs.15,45,340/- with
interest at 6% p.a. from the date of claim petition till
realization.
The Corporation is directed to deposit entire
compensation amount with up to date interest within 60 days
before the Tribunal.
Upon such deposit, the compensation shall be
apportioned amongst the claimants as per the ratio fixed by the
Tribunal.
Draw award accordingly.
Registry to transmit the trial Court records along with a
copy of this judgment, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
