1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF JULY, 2019 PRESENT THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON'BLE MR. JUSTICE K. [ENTITY] M.F.A. Crob. No.20 of 2013 (MV) (In M.F.A. No.8527 of 2011) BETWEEN: 1. SMT. SUKANYA P. JAIN, W/O. LATE PRASANNA KUMAR, AGED ABOUT 36 YEARS, 2. APTHA P. JAIN, AGED ABOUT 11 YEARS, 3. ARGHYA P. JAIN, AGED ABOUT 6 1/2 YEARS, Nos.2 AND 3 ARE MINOR CHILDREN OF LATE PRASANNA KUMAR AND BOTH ARE REPRESENTED BY THEIR GUARDIAN AD-LITEM MOTHER AND PETITIONER NO.1 HEREIN SMT. SUKANYA P. JAIN AND ALL ARE RESIDING AT "SRI PADMA SANIDHYA" NO.6/2, 2ND MAIN, 4TH CROSS, NEAR MAHADESHWARA TALKIES, KADERENAHALLI, BSK 2ND STAGE, BANGALORE - 560 070. 2 4. SMT. YASHASHWATHI, W/O. ADIRAJA BALIPA, AGED ABOUT 70 YEARS, RESIDING AT PARAPADY BEEDU, PARAPADY, NITTE VILLAGE, KARKALA TALUK - 574 110. CROSS-OBJECTORS (BY SRI M. MOHAN RAO, ADVOCATE) AND: 1. SRI M. ASHOK KUMAR, S/O. NEMIRAJA BALIPA, AGED ABOUT 59 YEARS, REGD. OWNER OF TATA BUS, BEARING REG. NO: KA.19 B.9118, RESIDING BEHIND GOMATA BETTA, DHANASHALA, POST KARKALA, KARKALA TALUK, UDUPI DISTRICT - 574 104. 2. UNITED INDIA INSURANCE CO. PVT. LTD., POST BOX NO.29, A.S. ROAD, SRINIVASA COMPLEX, KARKALA - 574 104. 3. SRI SATHISH ACHARYA, ADULT, S/O. SRINIVASA ACHARYA, RESIDING AT PUDUBETTU HOUSE, NELLIKAR, NALLUR VILLAGE, KARKALA TALUK - 574 104. DRIVER OF TATA BUS, BEARING REG. NO: KA.19 B.9118. 4. THE EXECUTIVE OFFICER, KARKALA TALUK PANCHAYATH, KARKALA TALUK UDUPI DISTRICT - 574 104. 3 5. MR. SUJEETH, FATHERS NAME NOT KNOWN, MAJOR BY AGE, WORKING AS DRIVER OF TEMPO TRAX, VEHICLE NO.KA.19 G.159, KARKALA TALUK PANCHAYATH, KARKALA TALUK, UDUPI DISTRICT - 574 104. 6. THE ADMINISTRATIVE OFFICER, KARNATAKA GENERAL, INSURANCE DEPARTMENT (K.G.I.D), VISHVESHWARAIAH TOWER, 16TH FLOOR, AMBEDKAR VEEDHI, OPP. VIDHANA SOUDHA, BANGALORE - 560 001. RESPONDENTS (BY SRI V.V. FERNANDES, HCGP for R.6) THIS M.F.A. Crob. IN MFA No.8527 OF 2011 IS FILED UNDER ORDER 41 RULE 22 OF CODE OF CIVIL PROCEDURE READ WITH SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 27/01/2011 PASSED IN [CASE NUMBER] ON THE FILE OF THE X ADDITIONAL JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS M.F.A. Crob.COMING ON FOR ADMISSION THIS DAY, [ENTITY] J., DELIVERED THE FOLLOWING:- 4 JUDGMENT
This Cross-Objection is filed in [CASE NUMBER] by the claimants seeking enhancement of compensation.
Learned High Court Government Pleader has accepted notice for respondent No.6.
2. Learned counsel for the cross-objectors/claimants submits that respondent Nos.1 to 3 herein have settled the matter with the cross-objectors. That the liability is only insofar as respondent Nos.4, 5, and 6 are concerned. Respondent No.6 is the insurer of the vehicle belonging to respondent No.4, which was driven by respondent No.5 being Tempo Trax bearing Regn.No.KA-19/G-159. He further submits that the appeal filed by respondent Nos.4 and 6 herein has been dismissed by a learned single Judge of this Court. In the circumstances, the cross-objection may be considered on merits.
3. We have heard the arguments of learned counsel for the parties.
4. The status of the parties before the Tribunal is retained for the sake of convenience.
5. The claimants filed the petition under [SECTION] of the [ACT] (for short 'Act') claiming compensation of Rs.81,00,000/- for the death of [ENTITY], inter alia, contending that on 06/01/2008 at 9.00 a.m., [ENTITY] was traveling on his motorcycle bearing Regn.No.KA-20/J-8209 from Bajagoli towards Karkala (NH-13) in a slow manner. When he reached near the Pump Shed in Kajarabail, Miyar Village, Karkala Taluk, the bus bearing Regn.No.KA-19/B-9118 belonging to respondent No.1 was driven by respondent No.3-driver in a rash and negligent manner and at a high speed and applied sudden brake to the bus without any signal, due to which, the motorcycle of [ENTITY] hit the hind portion of the bus and in the meanwhile, a Tempo Trax bearing Regn.No.KA-19/G-159 coming from Karkala proceeding towards Bajagoli belonging to respondent No.4 and driven by respondent No.5 came in a high speed from the opposite direction and dashed to [ENTITY], as a result of which the bumper of the Tempo Trax hit on the head of [ENTITY] and he fell down on the road and sustained grievous injuries. He was shifted to the Government Hospital, Karkala, where he died on 06/01/2008.
The claimants contended that [ENTITY] was hale and healthy. He was running a milk Dairy and was getting substantial income by selling milk products to M/s.Nitte Milk Producers' Union and was earning a sum of Rs.3,000/- per day and after paying salary to his coolies and after deducting expenses, he was earning Rs.1,500/- per day from the aforesaid activities and his net income for a month was Rs.45,000/-. It was also contended that the deceased was an active member of Shree Kshetra Dharmastala Gramabhivruddi Yojane and he was working as President in his region and getting honorarium from the said Organization in a sum of Rs.300/- per month. He was the only breadwinner of the family and due to his untimely death, the family lost their dependency. Hence, they prayed for grant of compensation.
Pursuant to the notice issued by the Tribunal, respondent Nos.1 and 3 did not appear before the Court and they were placed ex parte. Respondent No.2, 4 and 6 appeared through their respective counsel and filed separate statement of objections.
Respondent No.2-Insurance Company admitted issuance of policy in favour of respondent No.1 in respect of the bus bearing Regn.No.KA-19/B-9118 and further contended that liability, if any, to be fastened would be subject to the terms and conditions of the policy. Respondent No.2 also contended that the bus was driven by a person who did not posses a valid and effective driving license at the time of accident and further denied the averments made in the claim petition as false. Further, the Insurance Company denied the involvement of the bus in the said accident and contended that the accident had occurred due to the rash and negligent riding of the motorcycle by its rider and the driver of the Tempo Trax bearing Regn.No.KA-19/G-159. The Insurance Company further contended that the compensation claimed is excessive and hence, prayed for dismissal of the petition.
Respondent No.6-[ENTITY] ([ENTITY]) also filed statement of objections by denying the averments made in the claim petition as false and also denied that the accident had occurred due to rash and negligence of the driver of Temp Trax bearing Regn.No.KA-19/G-159 and contended that the deceased was riding the motorcycle behind the bus, which was driven by respondent No.3 in a rash and negligent manner and at a high speed who suddenly applied brake without any signal. Due to the sudden halt, the rider of the motorcycle dashed to the hind side of the bus. In the meantime, respondent No.6 admitted issuance of policy in respect of the Tempo Trax bearing No.KA-19/G-159 and liability if any was subject to the terms and conditions of the policy. Respondent No.6 also prayed for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
1. Whether the petitioners prove that the deceased [ENTITY], S/o.[ENTITY] succumbed to the injuries sustained in the road traffic accident that took place on 06-01-2008 at about 09.00 a.m. on Kajarabail, Miyar Village, Karkala Taluk, due to actionable negligence of the drivers of Tata Bus bearing registration No.KA-19-B-9118 and Tempo Trax bearing registration no.KA-19-G-159?
2. Whether the petitioners prove that they are LR's of the deceased?
3. Whether the petitioners prove that they are entitled for compensation? If so, what amount and from whom?
4. What Order or Award?
7. To substantiate the contentions, claimant No.1 examined herself as PW.1 along with two more witnesses as PWs.2 and 3 and got marked twenty documents as per Exs.P.1 to P.20. On behalf of respondent No.4, its Executive Officer as RW.1 adduced evidence, but no document was marked. After considering the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative and awarded compensation of Rs.7,10,000/- fastening the liability on respondent Nos.2 and 6 at 50% each and awarded the compensation under the following heads:
Loss of dependency Rs.6,75,000-00 Funeral expenses Rs. 10,000-00 Loss of consortium Rs. 10,000-00 Loss of estate Rs. 10,000-00 Transportation of Rs. 5,000-00 dead body Total Rs.7,10,000-00
8. Assailing the judgment and award passed by the Tribunal, respondent Nos.4 and 6 filed [CASE NUMBER] and the claimants filed cross-objection. However, [CASE NUMBER] filed by respondent Nos.4 and 6 came to be dismissed for non-prosecution and no steps were taken to recall the said order and the same became final. Respondent No.2-Insurance Company has also not filed any appeal against fastening of 50% of liability on them. Therefore, we have taken up the cross-objection filed by the cross-objectors/claimants for consideration.
9. Learned counsel for the cross-objectors/claimants contended that the deceased [ENTITY] was aged about 38 years. He was hale and healthy. He was running a milk Dairy and was getting substantial income by selling milk products to M/s.Nitte Milk Producers' Union and was earning a sum of Rs.3,000/- per day and after paying salary to his coolies and after deducting expenses, he was earning Rs.1,500/- per day from the aforesaid activities and his net income for a month was Rs.45,000/-. It is also contended that the deceased was an active member of Shree Kshetra Dharmastala Gramabhivruddi Yojane and he was working as President in his region and was getting honorarium from the said Organization in a sum of Rs.300/- per month. The claimants also examined PW.3- [ENTITY] and produced Ex.P.19-Dairy book maintained by the deceased. In spite of producing oral and documentary evidence by the claimants, the Tribunal considered the notional income of the deceased at Rs.5,000/- per month, which is meager and insufficient. There are four claimants in number. Learned counsel also contended that the future prospects of the deceased has not been considered by the Tribunal. The award of compensation on the conventional heads is also meager. Hence, he prayed for enhancement of compensation.
10. Per contra, learned counsel for respondent No.6- [ENTITY] supported the judgment and award passed by the Tribunal in respect of quantum of compensation. Though the appeal filed by respondent No.6-[ENTITY] before this Court in [CASE NUMBER] stood dismissed by this Court for non-prosecution, learned counsel argued that the income of the deceased has been rightly considered by the Tribunal. Hence, he contended that there is no reason for interfering with the award of compensation by this Court. Hence, we prayed for dismissal of cross-objection.
11. It is also noted that respondent Nos.1 to 3, the insurer, owner and driver of the bus bearing Regn. No.KA- 19/B-9118, against whom 50% of the liability has been fixed by the Tribunal, have settled the matter with the claimants. Therefore, this Court is required to consider only enhancement of compensation and apportionment of 50% of the liability fastened against respondent Nos.4 and
12. Upon hearing the arguments of learned counsel for the cross-objectors, the points that arise for our consideration are as under:
i) Whether the appellants are entitled for enhanced compensation?
ii) What order?
13. The cross-objectors contended that claimant No.1 examined herself as PW.1. She has stated that the deceased was getting substantial income by selling milk products to M/s.Nitte Milk Producers' Union and was earning a sum of Rs.3,000/- per day and after paying salary to his coolies and after deducting expenses, he was earning Rs.1,500/- per day from the aforesaid activities and his net income for a month was Rs.45,000/-. They also examined PW.3-[ENTITY], who produced Ex.P.9-
Daily Newspaper copy, Ex.P.10-Dairy pass-book and Ex.P.19-Diary. But they have not produced any authenticated documents to show as to what was the actual income earned by the deceased [ENTITY]. There is no income tax returns produced before the Tribunal to prove the income. However, the income considered by the Tribunal at Rs.5,000/- per month is very meager. Therefore, we propose to consider the notional income of the deceased at Rs.8,000/- per month as the accident occurred on 06/01/2018. As per the dictum of the Hon'ble Apex Court in the case of [PRECEDENT], 40% of the income has to be considered towards loss of future prospects of the deceased. If Rs.8,000/- is considered as his monthly income and 40% of it would be Rs.3,200/-. Thus, Rs.11,200/- would be the total notional income. There are four claimants and, therefore, 1/4th of the income shall be deducted towards the personal expenses. If Rs.2,800/- is deducted, it comes to Rs.8,400/-. The same is annualised and multiplied by '15' (being appropriate multiplier), it comes to Rs.15,12,000/-, This would be the compensation towards loss of dependency.
14. As per the dictum of the Hon'ble Apex Court in the case of [PRECEDENT], claimant No.1 being the widow of the deceased is entitled to Rs.40,000/- towards loss of spousal consortium, claimant Nos.2 and 3 being the children of the deceased are entitled to Rs.30,000/- each towards loss of parental consortium and claimant No.4, the mother of the deceased is entitled to Rs.30,000/- towards loss of filial consortium. Further, the claimants are entitled for a sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral and transportation charges. In the circumstances, the compensation is re-assessed as under:
Loss of dependency Rs.15,12,000/- Loss of spousal consortium Rs. 40,000/- Loss of parental consortium Rs. 60,000/- @ Rs.30,000/- per child Loss of filial consortium Rs. 30,000/- Loss of estate Rs. 15,000/- Funeral and transportation Rs. 15,000/- charges Total Rs.16,72,000/-
The aforesaid compensation shall carry interest at the rate of 6% per annum with effect from the date of filing of the claim petition till realisation.
The award of compensation in this cross-objection is apportioned in the following terms:
Widow of the deceased (claimant No.1) : 50% Children of the deceased (claimant Nos.2&3) : 20% each Mother of the deceased (claimant No.4) : 10% It is further reiterated that the liability of respondent No.6 is only to the extent of 50%.
Learned counsel for the cross-objectors further submits that the cross-objectors have settled their dispute with respondent Nos.1 to 3 herein. The same cannot be re-opened in this case. In the circumstances, respondent No.6 to deposit only 50% of the compensation with proportionate interest. The same shall be deposited within four weeks from the date of receipt of certified copy of this judgment.
The compensation awarded to the children of the deceased shall be deposited in toto in any Nationalised Bank or Post Office Deposit until they attain the age of majority.
The compensation awarded to the mother of the deceased shall be released to her after due identification.
75% of the compensation awarded to the widow of the deceased shall be deposited in any Nationalized Bank or Post Office deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit.
The MFA Crob. is allowed in-part in the aforesaid manner.
Parties to bear their respective costs.
JUDGE Sd/-
JUDGE mv