1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JUNE, 2019 PRESENT THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON'BLE MR. JUSTICE K. [ENTITY] MISCELLANEOUS FIRST APPEAL No.8163 of 2017 (MV-D) BETWEEN: THE MANAGING DIRECTOR, [ENTITY], K.H. ROAD, SHANTHINAGAR, BENGALURU - 560 027, REPRESENTED BY LAW OFFICER. APPELLANT (BY SRI. MAHENDRA, ADVOCATE FOR SRI. RAJASHEKAR S., ADVOCATE) AND: 1. SMT. ANJINAMMA, W/O. LATE SEENAPPA, MAJOR, 2. SMT. JAYAMMA, W/O. ANJI, AGED ABOUT 26 YEARS, 3. S. NAGAMANI, D/O. LATE SEENAPPA, AGED ABOUT 20 YEARS, 4. MASTER RAVISHANKAR, S/O. LATE SEENAPPA, AGED ABOUT 16 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. ANJINAMMA. 2 5. SMT. RAMAKKA, SECOND W/O. LATE SEENAPPA, AGED ABOUT 36 YEARS, 6. MASTER DEVARAJ, S/O. LATE SEENAPPA, AGED ABOUT 7 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. RAMAKKA. 7. MASTER SHIVAKUMAR, S/O. LATE SEENAPPA, AGED ABOUT 15 YEARS, MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. RAMAKKA. ALL ARE RESIDING AT BEHIND BSNL OFFICE, NEAR RMC YARD, PAVAGADA TOWN, PAVAGADA, TUMKUR DISTRICT - 561 202. RESPONDENTS (BY SRI. R. SHASHIDHARA, ADVOCATE FOR R1 TO R7; R4, R6 AND R7 ARE MINORS REPRESENTEDBY THEIR MOTHER) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 10.07.2017 PASSED IN [CASE NUMBER] ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MEMBER-MACT, BENGALURU, AWARDING A COMPENSATION OF Rs.22,25,000/- FROM THE DATE OF PETITION TILL REALIZATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS, THIS DAY, [ENTITY] J., DELIVERED THE FOLLOWING: 3 JUDGMENT
Though this appeal is listed for orders, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the appellant [ENTITY] by assailing the judgment and award dated 10.07.2017 passed in [CASE NUMBER] by the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-5) at Bengaluru (hereinafter referred as 'Tribunal', for the sake of convenience).
3. We have heard the arguments of learned counsel appearing for the appellant-[ENTITY] as well as the respondent-claimants.
4. For the sake of convenience, the parties herein shall be referred to in terms of their status before the Tribunal.
5. The petitioners/claimants are the legal heirs of deceased [ENTITY], who had filed the claim petition under [SECTION] of [ACT] (hereinafter referred to as 'the Act', for the sake of brevity) seeking compensation of Rs.50,00,000/-, inter-alia, contending that on 18.05.2016, at about 5.40 p.m., the said [ENTITY] along with his family members was proceeding in a [ENTITY] bus bearing registration No.KA-01/F-9181 from Tirumani to Bugudur Village. When the bus came near Bugudur cross road at about 6.00 a.m., the driver of the bus drove the bus in a rash and negligent manner and with high speed, as a result of which, the bus turned turtle; due to which, [ENTITY] sustained injuries and died in the hospital. The claimant Nos.1, 5 and 7 also sustained injuries and they were shifted to the Government Hospital at Pavagada, where they took treatment. Post-Mortem examination was also conducted on the dead body of deceased [ENTITY]. Due to the death of [ENTITY], the claimants who are the wives and children, claimed compensation under various heads.
In Pursuance to the notice issued by the Tribunal, the respondent-[ENTITY] appeared through its counsel and filed statement of objections denying the entire averments in the claim petition. However, admitted that the said accident had occurred due to mechanical defect and failure of the steering as it was jammed and the driver of the bus was not at all responsible for the accident. Hence, prayed for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues:
i). "Whether the petitioners prove that deceased Sri. [ENTITY], S/o. Late-[ENTITY], aged about 46 years, was died in a road traffic accident that occurred on 18.05.2016 at about 6.00 a.m., on Buguduru, Pavagada Taluk, Tumkur District, within the jurisdiction of Thirumani Police Station, where deceased was proceeding in the KSRTC Bus bearing Reg.No.KA-01-E-
9181, due to rash and negligent act of driving of the above said Bus driver, as alleged in the petition?
ii). Whether the Petitioners are entitled for compensation as prayed in the petition? If so, from which Respondent?
iii). What order or award?"
7. In support of their case, claimant No.1 examined herself as PW.1 and got marked 24 documents as per Exs.P1 to P24. On behalf of the respondent- [ENTITY], [ENTITY]-driver of the [ENTITY] bus was examined as RW.1, but no documents were marked. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.22,25,000/- with interest at the rate of 9% per annum from the date of petition till realization, which is as under:
Compensation Sl.
Heads awarded by the No. Tribunal (in Rs.) 1. Loss of dependency 10,65,000.00 Loss of consortium 2. (Rs.1,00,000/- each to 2,00,000.00 Petitioners No.1 & 5) Loss of love and affection 3. (Rs.1,00,000/- each to 2,00,000.00 Petitioners No.1& 5) Loss of love and affection 4. (Rs.1,00,000/- each to 4,00,000.00 Petitioners No.3, 4, 6 & 7) Loss of love and affection 5. 50,000.00 (Petitioner No.2) Loss of estate 6. (Rs.50,000/-each to 3,00,000.00 Petitioners Nos.1, 2 to 7) 7. Funeral expenses 25,000.00 Total 22,40,000.00 Less: Amount already 15,000.00 paid by Respondent i.e., [ENTITY] 22,25,000.00
Assailing the quantum of compensation awarded by the Tribunal, the [ENTITY] has preferred this appeal for reduction of award.
8. Learned counsel for the appellant-[ENTITY] contended that the deceased [ENTITY] is said to be a 'Budubudike' Astrologer, but no documents were produced before the Court to prove the income of the deceased. In the absence of any proof of income, the Tribunal committed error in considering the income of the deceased at Rs.7,000/- per month. Learned counsel also contended that the Tribunal committed error in awarding an exorbitant compensation of Rs.2,00,000/- towards 'loss of consortium', Rs.6,50,000/- towards 'loss of love and affection, Rs.3,00,000/- towards 'loss of estate' and Rs.25,000/- towards 'funeral expenses'. In all, the compensation awarded is excess and exorbitant. As per the dictum of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. [ENTITY] and others reported in (2017) 16 SCC 680 ([ENTITY]), learned counsel prayed for reduction of compensation awarded by the Tribunal.
9. Per contra, learned counsel for the respondents-claimants contended that the deceased was earning Rs.500/- to Rs.600/- per day as his income, but the Tribunal has considered his income only at Rs.7,000/- per month, which is meager. The Tribunal has also erred in not considering the income towards 'future prospects'. Further, learned counsel for the respondents contended that the award of compensation on the conventional heads may be a little exorbitant, but prayed for dismissal of the appeal.
10. Upon hearing learned counsel for the appellant as well as the respondents and after perusing the records, the points that arise for our consideration are:
i). "Whether the Tribunal is justified in awarding the compensation on various heads in the instant case or it is excessive and exorbitant as contended by the appellant?
ii). What order?"
11. The claimants have established that, the accident that occurred on 18.05.2016 was due to the rash and negligent driving of the [ENTITY] bus bearing registration No.KA-01/F-9181 by its driver, due to which, [ENTITY] died. Though RW.1 contended that the accident occurred due to the mechanical defect and not on account of the rash and negligent driving by the driver of the [ENTITY] bus, the Police had registered a case against RW.1 and registered FIR as per Ex.P1 and filed charge sheet as per Ex.P2. Ex.P6 is the IMV report, which shows that the accident in question had occurred not due to any mechanical defect in the vehicle, but it clearly go to suggest that the accident was due to rash and negligent driving by the driver of the [ENTITY] bus i.e., RW.1. The appellant has not challenged the finding of the Tribunal with regard to the negligence on the part of the driver, but challenged only on the quantum of compensation. This aspect of the matter would take us only to the question of computation of compensation entitled to by the claimants.
12. The claimants have contended that the deceased [ENTITY] was a 'Budubudike' Astrologer and was earning Rs.500/- to Rs.600/- per day, but they failed to produce documents regarding the income. However, the Tribunal considered the income of the deceased at Rs.7,000/- per month, which is inadequate. This Court has considered Rs.9,500/- per month as notional income for an unskilled labour, who died in an accident during the year 2016. Therefore, we are of the view that the Tribunal considering the income of the deceased at Rs.7,000/- per month is not proper and hence, we propose to reckon the same at Rs.9,500/- per month. As per the dictum of the Hon'ble Apex Court in the case of [ENTITY], 25% of the income should be considered towards the future prospects for the age group 40-50 years. Since, the deceased was aged about 46 years as on the date of accident, if 25% of the income at Rs.2,375/- is added to Rs.9,500/-, then it comes to Rs.11,875/- per month. As per dictum of the Hon'ble Supreme Court in the case of [PRECEDENT], when the dependants are more than four, 1/5th of the income should be deducted towards personal expenses of the deceased. In the case on hand, there are seven claimants. Claimant Nos. 1 and 5 are the wives of deceased and remaining are the daughters and sons of the deceased. Therefore, 1/5th of the income of deceased towards personal expenses i.e., Rs.2,375/-. After deducting Rs.2,375/- from Rs.11,875/-, it comes to Rs.9,500/- per month and the annual income would be Rs.9,500X12=Rs.1,14,000x13. Applying multiplier of '13', the 'loss of dependency' would come to Rs.14,82,000/-. Therefore, we propose to award Rs.14,82,000/- towards 'loss of dependency' as against Rs.10,65,000/- as awarded by the Tribunal.
13. As per the dictum of the Hon'ble Supreme Court in the case of [PRECEDENT], claimant Nos.1 and 5, who are the wives of deceased are entitled for Rs.40,000/- each towards 'loss of spousal consortium' and claimant Nos.2, 3, 4, 6 and 7, the children of the deceased are entitled for Rs.30,000/- each towards the 'loss of parental consortium'. In all, Rs.2,30,000/- is awarded towards 'loss of consortium' to all the claimants as against Rs.2,00,000/- as awarded by the Tribunal. As per the dictum of the Hon'ble Apex Court in the case of [ENTITY], the claimants are entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation and funeral expenses. Therefore, the same is awarded.
14. Accordingly, the claimants are entitled for the re-assessed compensation as under:
Compensation Sl. awarded by Heads No. this Court (in Rs.) 1 Towards loss of dependency 14,82,000.00 Towards loss of consortium (Rs.40,000/- each to Rs.30,000/- each to respondent Nos.2 to 4,6 & 7) 3 Towards loss of estate 15,000.00 Towards transportation of 4 dead body and funeral 15,000.00 expenses Total 17,42,000.00
15. In the result, the appeal filed by the appellant- [ENTITY] is allowed in-part. The re-assessed compensation is Rs.17,42,000/- instead of Rs.22,25,000/- as awarded by the Tribunal. The re-assessed compensation shall carry interest at the rate of 6% per annum instead of 9% per annum awarded by the Tribunal.
The re-assessed compensation shall be apportioned between the two widows of late [ENTITY] to an extent of 25% each and his five children shall be apportioned 10% each of the compensation with proportionate interest.
The compensation awarded to the minor claimants shall be deposited in any Post Office or Nationalised Bank deposit until they attain the age of majority.
75% of the compensation awarded to the two widows of the deceased [ENTITY] shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. They shall be entitled to draw periodical interest on the said deposit. The balance amount shall be released to them after due identification.
16. Insofar as the major children are concerned, 50% of the compensation awarded to them shall be deposited in any Post Office or Nationalized Bank deposit for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance amount shall be released to them after due identification.
The amount in deposit before this Court to be transmitted to the Tribunal.
The appellant - [ENTITY] shall deposit the balance amount with proportionate interest within a period of four weeks from the date of receipt of a certified copy of this judgment.
Parties to bear their respective costs.
JUDGE Sd/-
JUDGE NR/-