IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.8626 OF 2015 (MV) Between:
1. Jayamma Aged 39 years W/o Late Jayaram S.K.
2. Chaitra Age 19 years D/o late Jayaram S.K.
3. Netravathi J Aged 17 years D/o late Jayaram S.K.
4. Kavya J Aged 13 years D/o late Jayaram S.K.
5. Doddamma Aged 85 years W/o late Kempaiah Appellants No.3 and 4 being minors Rep. by their mother natural guardian Smt. Jayamma All are residents at No.4 8th Main, 9th Cross, Sakambari nagar J.P. Nagar 1st phase Bengaluru - 560 078 Also at #313, Somanahalli II Block Bengaluru South (by Shri Girimallaiah, Advocate) And:
The Managing Director K.S.R.T.C.
K.H. Road Shanthinagar Bengaluru - 560 002 (By Shri P. Parameshaiah, Advocate) …Appellants …Respondent This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 28.07.2015 passed in MVC No.3239 of 2014 on the file of XVI Additional Judge, Court of Small causes, Member MACT, Bangalore city SCCH - 14 partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Miscellaneous First Appeal coming on for further orders, this day, the Court delivered the following:
J U D G M E N T The appeal is by the claimants seeking enhancement in the compensation for having lost the breadwinner of the family in the road traffic accident that took place on 22nd May 2014. The prayer in the claim petition was that when the deceased was riding his two-wheeler on NH-209, the offending vehicle belonging to the respondent-Corporation came in a rash and negligent manner and caused the accident. The victim was shifted to National Institute of Mental Health and Neurosciences wherein he succumbed to the injuries. The deceased was aged about 47 years and was working as Garden Assistant at M/s. Chaitra Enterprises. The deceased was getting Rs.12,000/- salary per month. The complaint made to that effect was registered in Crime No.189 of 2014 against the driver of the offending vehicle for the offence punishable under Sections 279, 337 and 304(a) of the Indian Penal Code and the driver has been chargesheeted. The claimants, to prove the accident and income of the deceased, examined PW1 the wife of the deceased and also examined PWs 2 and 3 and got marked documents Exhibits P1 to P8 like FIR, spot panchanama, vehicle seizure, sketch, charge-sheet, post-mortem report, inquest report, statement of witnesses, identification card of the deceased. The identification card of the petitioner No.1-the wife of the deceased and petitioner No.5-the mother of the deceased has been marked as Exhibits P9 and P10. School identification card of petitioner No.4-Kavya, has been marked as Exhibit P13 and the progress report has been marked as Exhibit No.P14. Exhibit P15 is the marks card of the second child i.e. Petitioner No.4-Chaitra; and Exhibit P16 is the salary certificate of the deceased. The Tribunal awarded the compensation of Rs.9,44,000/- for which the income has been assessed at Rs.7,000/- per month and selected the multiplier 13, which is appropriate to the age of the deceased. The learned counsel for the appellants submits that the compensation awarded is on the lower side. He submits that the claimants who are the wife, children and mother of the deceased have failed to prove the income of deceased and that it itself has been taken as a basis as if they have not proved the income and the tribunal has assessed the income of the deceased at Rs.7,000/- per month. The first claimant was aged 38 years and had three daughters who were aged 18, 16 and 12 years, and the fifth petitioner is the mother of the deceased who was aged 84 years. Hence, he submits that taking all these facts into consideration, the claimed income of the deceased should have been taken by the Tribunal. Hence, seeks enhancement in the compensation.
2. The learned counsel for the respondent-Karnataka State Road Transport Corporation submits to dismiss the appeal and supports the order of the Tribunal. He submits that the income has not been proved and hence, the Tribunal was justified in assessing the just income and accordingly, the compensation awarded is sound and proper and hence does not call for interference by this Court. He also submits petitioners No.2 and 3 have already attained majority and it is also not known whether the children are pursuing their studies since no proof is produced to that effect.
3. Heard the learned counsel for the parties. The road accident death and the relationship of the deceased with the claimants are not in dispute. However, while assessing the compensation, the income of the deceased has been assessed at Rs.7,000/- by disbelieving the statement of the first petitioner who is the wife of the deceased. The occupation of the deceased was garden assistant and was residing in J.P. Nagar at Bangalore. While assessing the notional income, in the cases where the income is not proved, the Tribunal should be more active and had to assess the notional income in a pragmatic manner. It is the practice of this Court that in the case where the income is not proved by the claimants by producing any documentary evidence, the income has to be assessed based on the year of accident, place of residence, cost of living prevalent then, number of dependents, etc. Further, the court also takes note of the fall in the interest rate of the bank. In the instant case, the petitioners are the residents of Bangalore and there are three daughters who are pursuing their studies. It is to be inferred, the deceased should have earned a good income to feed himself and five dependents which includes wife, three children and an aged mother. It is also to be noted that he was maintaining a two-wheeler and meeting the education expenses of his children and also the traveling expenses of the children to reach college/school and back, and for himself to reach his work- spot. Taking all these practical situations into consideration, it is presumed that the deceased must have earned reasonable income. For the said purpose, I an inclined to take the income of the deceased at Rs.15,000/- per month. Though the claimants state that the deceased was working as Garden Assistant and produced salary certificate as per Exhibit P16, but the same has not been proved. The claimants, who are widow of the deceased and the minor children and the aged mother of the deceased, may not be in a position to adduce evidence of employment, etc., but they could have made available some semblance of materials to believe the earning of income claimed in the claim petition. Even then, to assess the notional income, this Court has taken note of the claim petition in which it is stated that deceased was earning Rs.12,000/-. It is felt that the learned Judge, who handled the case might not have the practical knowledge in assessing the notional income. In that practical view of the matter, the income of the deceased, for the foregoing reasons, is to be assessed at Rs.15,000/- per month. Accordingly, the calculation would be Rs.15,000/- x ¼ x 12 x 13 which comes to Rs.17,55,000/- the same is awarded under the head of loss of dependency in place of Rs.8,19,000/- awarded by the Tribunal. As per the judgment of the Hon'ble Supreme Court in the case or NATIONAL INSURANCE COMPANY LIMITED v.
PRANAY SETHI AND OTHERS reported in 2017 SCC ONLINE 1270 Rs.70,000/- is awarded under the conventional heads. In total the enhanced compensation would be Rs.18,25,000/-.
4. The claimants have stated that the daughters are studying and for the said purpose Exhibit P13 the school identification card of petitioner No.4 as Exhibit P14 and petitioner No.2 has been produced as SSLC marks card Exhibit P15. The Petitioners No.2 and 3 were aged about 18 and 16 years and by now have attained majority. For continuing their education no materials have been placed. Under these circumstances, in view of the death of the father, probably the daughters might have found it difficult to prosecute their education. Taking these aspects into account, the respondent- Corporation is directed to keep a corpus deposit of Rs.2,00,000/- each in its name in the nationalized bank. As and when the claimants produce the fee structure, the banks shall release the amount out of the interest accrued on the income. It is made clear that if the claimants discontinue/have discontinued the education the Banks shall return the amount to the Corporation with the accrued unused interest. In this regard, the Banks too are expected to do some social service. They have to verify the vouchers like school/college as to whether the student is pursuing studies in that institution upon production of the fee structure/receipts, etc. It is also made clear that out of the interest portion accumulated, the amount is to be deposited directly to the account of the Institution where the student is studying. It is also directed that the respondent-Corporation to deposit Rs.4,00,000/- (Rupees two lakh each) in any of the nationalized bank of the choice of the claimant. This deposit is to be made for a period of ten years and the corpus is to be refunded to the respondent-Corporation after completion of ten years or completion of education, whichever is earlier.
5. Out of the enhanced compensation, Rs.3,00,000/- is to be deposited in the name of the three daughters, i.e. appellants No.2, 3 and 4 and Rs.1,00,000/- in the name of the fifth appellant; and the remaining amount may be disbursed to the first claimant which is to be kept in fixed deposit in any of the nationalised bank of the choice of the claimant for a period of three years and the claimants are permitted to withdraw the interest accrued on the same.
Subject to the above observations and directions, the appeal stands disposed of.
lnn Sd/- JUDGE