IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8147/2014 [MV] c/w M.F.A.CROB.No.83/2016 M.F.A.No.8147/2014 BETWEEN:
THE DIVISIONAL CONTROLLER K S R T C K S R T C BUS STAND MANDYA (OWNER OF THE BUS BEARING NO.KA-09-F-4271) ALL NOW THROUGH CHIEF LAW OFFICER KSRTC, BANGALORE.
(BY SRI. NAGARAJA. K, ADV.) AND:
1. SMT. KOUSALYA W/O LATE D J SOMAKUMAR AGED ABOUT 31 YEARS 2. CHATHANA S D/O LATE D J SOMAKUMAR AGED ABOUT 13 YEARS ...APPELLANT 3. SAHANA S D/O LATE D J SOMAKUMAR AGED ABOUT 11 YEARS 4. MADESHA S S/O LATE D J SOMAKUMAR AGED ABOUT 8 YEARS No.2 TO 4 SINCE MINORS REPTD BY NATURAL GUARDIAN MOTHER 1ST RESPONDENT SMT. KOUSALYA 5. D C JAYARAMU S/O LATE CHANNEGOWDA AGED ABOUT 67 YEARS 6. SMT. S RAJAMMA W/O D C JAYARAMU AGED ABOUT 62 YEARS ALL ARE R/AT SHIVARA VILLAGE KASABA HOBLI MANDYA TQ & DIST.-571401.
…RESPONDENTS (BY SMT. BHUSHANI KUMAR, ADV. FOR R1, R5 & R6 R2 TO R4 – MINORS REP. BY R1) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2014 PASSED IN MVC.NO.1478/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, AWARDING COMPENSATION OF RS.14,81,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
MFA.CROB.No.83/2016 BETWEEN:
1. SMT. KOUSALYA W/O LATE D.J. SOMAKUMAR AGED 33 YEARS 2. KUM. CHETHANA S D/O LATE D J SOMAKUMAR AGED ABOUT 15 YEARS 3. KUM. SAHANA S D/O. LATE D J SOMAKUMAR AGED ABOUT 13 YEARS 4. CHI. MADESHA S S/O LATE D J SOMAKUMAR AGED ABOUT 10 YEARS OBJECTORS 2 TO 4 SINCE MINORS ARE REP. BY NATURAL GUARDIAN-MOTHER OBJECTOR NO.1 SMT. KOUSLYA.
5. D C JAYARAMU S/O LATE CHANNEGOWDA AGED ABOUT 69 YEARS 6. SMT. S RAJAMMA W/O D C JAYARAMU AGED ABOUT 64 YEARS ALL ARE RESIDENTS OF SHIVARA VILLAGE KASABA HOBLI MANDYA TALUK & DISTRICT-571401.
...CROSS OBJECTORS (BY SMT. BHUSHANI KUMAR, ADV.) AND:
THE DIVISIONAL CONTROLLER K.S.R.T.C.
K.S.R.T.C., BUS STAND MANDYA-571 401.
…RESPONDENT (BY SRI.K NAGARAJ, ADV.) THIS M.F.A.CROB. IN MFA.NO.8147/2014 FILED UNDER ORDER 41 RULE 22 OF CPC, R/W SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2014 PASSED IN MVC.NO.1478/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, PARLTY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. AND M.F.A. CROB ARE COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both the KSRTC and claimants are in appeal and cross-objection respectively, being aggrieved by the quantum of compensation awarded under the judgment and award dated 28.07.2014 in MVC No.1478/2012 on the file of the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Mandya (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are wife, children and parents of one deceased D.J.Somakumar, husband of the first claimant. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of Somakumar in a road traffic accident. It is stated that on 13.07.2012, while the deceased was proceeding along with his relatives in Tractor and Trailer bearing registration No.KA-42/T-590 for unloading dry-hay in the relatives house, a KSRTC bus bearing registration No.KA-09/F-4271 driven in a rash and negligent manner came from the backside and dashed to the Tractor and Trailer. Due to which, the Tractor and Trailer turtled and deceased sustained grievous injuries and died on the way to hospital. It is stated that the deceased was aged about 35 years and earning Rs.10,000/- p.m., working as a driver in the Tractor and Trailer and also earning Rs.15,000/- p.m., by doing agricultural work in his own land.
3. On issuance of notice, the respondent/KSRTC appeared and filed its statement denying the petition averments and contended that the driver of the KSRTC bus was driving the bus on the right track in a moderate speed, the accident took place solely due to negligence on the part of the driver of the Tractor and Trailer. It is also contended that the deceased was driving the Tractor and Trailer without driving license to drive the same.
4. Claimant No.1 examined herself as P.W.1 and also examined the eye-witness as P.W.2 apart from marking the documents as Ex.P1 to Ex.P7. The KSRTC examined driver of the bus as R.W.1.
5. The Tribunal, on appreciating the material on record awarded total compensation of Rs.15,31,000/- with interest at 9% p.a., on the following heads:
1. Loss of dependency :: Rs.12,96,000/-
2. Towards funeral & obsequies expenses, Transportation of the dead body :: Rs. 25,000/-
3. Loss of consortium to the 1st petitioner :: Rs. 1,00,000/-
4. Loss of love and affection to petitioners 2 to 6 :: Rs. 1,00,000/-
5. Loss of estate :: Rs. 10,000/-
Total Rs.15,31,000/-
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.6,000/- p.m. and added 50% of the determined income towards future prospects. Aggrieved by the awarding 50% of the assessed income towards future prospects and awarding 9% interest per annum and also awarding Rs.2,35,000/- on conventional heads, the KSRTC is before this Court in MFA No.8147/2014 whereas the claimants are in cross-objection being aggrieved by assessment of income of the deceased at Rs.6,000/- p.m., and praying for enhancement of compensation.
6. Heard the learned counsel for the KSRTC and learned counsel for the claimants. Perused the material placed on record.
7. Learned counsel for the appellant/KSRTC submits that the Tribunal committed an error in awarding 50% of the assessed income towards future prospects. It is his submission that as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 case, the claimants would be entitled for only 40% of the assessed income towards future prospects. Further, he submits that the Tribunal committed an error in awarding Rs.2,35,000/- towards conventional heads. As per the decision of the Hon'ble Supreme Court in the PRANAY SETHI case (supra), the claimants would be entitled only for Rs.70,000/- on conventional heads. Further, submitted that the interest awarded at 9% p.a., is too excessive whereas the claimants would be entitled to interest at 6% p.a.
8. Per contra, learned counsel for the claimants would submit that the income of the deceased assessed by the Tribunal at Rs.6,000/- p.m., is on the lower side. She submits that the deceased was working as driver of the Tractor and Trailer, earning Rs.10,000/- p.m., and the deceased was owning 10 acres of land and working in his land, he was earning more than Rs.15,000/- p.m. Learned counsel for the claimants would submit that the children and parents of the deceased would be entitled for Rs.40,000/- each towards parental and filial consortium as held by the Hon'ble Supreme Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS.. Thus, prays for allowing the cross-objection.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in assessing the income of the deceased at Rs.6,000/- p.m.?
(ii) Whether the Tribunal is justified is adding 50% of the assessed income towards future prospects?
(iii) Whether the Tribunal is justified in awarding Rs.2,35,000/- on conventional heads?
(iv) Whether the claimants would be entitled to parental and filial consortium at Rs.40,000/- each?
(v) Whether the Tribunal is justified is awarding interest at the rate of 9% p.a. instead of 6% p.a.
10. Answer to the points No.1, 2, 3 and 5 is in the negative and answer to point No.4 is in the affirmative, for the following reasons:
The accident occurred on 13.07.2012 involving the Tractor and Trailer bearing registration No.KA-42/T-590 and KSRTC bus bearing registration No.KA-09/F-4271 and the accidental death of one D.L.Somakumar are not in dispute in the appeal and cross-objection. Both claimants and KSRTC are before this court, being aggrieved by the quantum of compensation. The Tribunal assessed the income of the deceased at Rs.6,000/- p.m., which is on the lower side. The claimants stated that the deceased was owning 10 acres of land and working in his land, he was earning more than Rs.15,000/- p.m. Further it is stated that the deceased was driver of the Tractor and Trailer and was possessing driving license. But, the claimants have not placed on record any material to indicate the income of the deceased nor the driving license to establish that he was also working as driver of the Tractor and Trailer. The claimants have produced Ex.P7-RTC and Ration Card, but the same would not indicate the earnings of the deceased. In the absence of any material to indicate the exact income, the income will have to be assessed notionally. This Court and Lok Adalath, while settling the accident claims of the year 2012, would normally assess notional income of Rs.7,000/- p.m. In the instant case also, in the absence of any material on record to indicate the exact income, it would be appropriate to assess the notional income of the deceased at Rs.7,000/- p.m. Thus answered point No.1 in the negative.
11. The Tribunal added 50% of the assessed income towards future prospects which is wholly erroneous.
The Hon'ble Supreme Court in PRANAY SETHI case has made it clear that the claimants would be entitled for adding 40% of the assessed income towards future prospects, wherever the deceased was below 40 years of age. In the instant case, the deceased was aged about 35 years as on the date of accident. As such, the claimants would be entitled for adding 40% of the assessed income towards future prospects instead of 50%. Thus answered point No.2 in the negative.
12. The Tribunal awarded Rs.2,35,000/- towards conventional heads. As per the decision of the Hon'ble Supreme Court in PRANAY SETHI case, the claimants would be entitled for Rs.70,000/- on conventional heads. Accordingly, the same is reduced to Rs.70,000/- instead of Rs.2,35,000/-. Thus, answered point No.3 in the negative.
13. The claimants 2 to 4 are the children of deceased Somakumar, they lost the love and affection and also guidance of their father at their young age and hence they would be entitled for parental consortium at Rs.40,000/- each, as per the decision of the Hon'ble Apex Court in MGAMA case (supra). Further, claimants No.5 and 6 are parents of the deceased who lost the care, love and affection of their son at their old age, hence they are entitled to filial consortium of Rs.40,000/- each. Thus, point No.4 is answered in the affirmative.
14. Further, the Tribunal has awarded interest at the rate of 9% p.a., which is on the higher side. Normally, the Tribunal would award 6% interest per annum. Section 34 of the Code of Civil Procedure is applicable and as such, the interest awarded by the Tribunal is reduced to 6% from 9%. The point No.5 is answered in the negative.
15. Thus, the claimants would be entitled to the following modified compensation:
Loss of dependency including Future prospects 7000 + 40% = 9800x12x16x3/4 :: Rs.14,11,200/-
Conventional heads :: Rs. 70,000/-
Parental Consortium :: Rs. 1,20,000/-
Filial Consortium :: Rs. 80,000/-
Total Rs.16,81,200/-
It is submitted that the appellant/KSRTC had paid Rs.50,000/- as interim compensation and same shall be deducted out of the above compensation. Thus, the claimants would be entitled to Rs.16,30,200/- with interest at 6% p.a. from the date of petition till realization.
16. The appeal filed by the appellant/KSRTC is allowed in part to the extent of reducing the future prospects from 50% to 40% and interest at the rate of 6% from 9% per annum. The cross-objections filed by the claimants is allowed in part, by enhancing the monthly income of the deceased from Rs.6,000/- to Rs.7,000/- and awarding parental and filial consortium.
The amount in deposit in MFA No.8147/2014 is directed to be transmitted to the concerned Tribunal.
Apportionment and deposit be made, as per the orders of the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms