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.4765 OF 2017 (MV) CONNECTED WITH MISCELLANEOUS FIRST APPEAL CROSS-OBJECTION NO.152 OF 2017 IN M.F.A. NO.4765/2017:
BETWEEN:
AND:
THE DIVISIONAL CONTROLLER K.S.R.T.C. DEPARTMENT, MANGALORE DIVISION, MANGALORE D.K.
NOW THROUGH ITS CHIEF LAW OFFICER, K.S.R.T.C., BANGALORE.
(BY SRI HAREESH BHANDARY T., ADVOCATE) ... APPELLANT 1. SRI BABU GOWDA S/O. BALANNA GOWDA, AGED ABOUT 70 YEARS.
2. SMT. YASHODA VEERAMMA W/O. SRI BABU GOWDA, AGED ABOUT 65 YEARS.
RESPONDENT NOS.1 AND 2 ARE RESIDING AT MAROLI HOUSE, EDAMANGALA VILLAGE & POST, SULIA TALUK, D.K.DISTRICT.
3. SRI SHIVANNA S/O. RAME GOWDA, AGED ABOUT 57 YEARS, RESIDING AT SHETTYHALLI HOUSE AND POST, MADENAHALLI VILLAGE, KATTAYA HOBLI, HASSAN TALUK.
... RESPONDENTS (BY SRI S. VISHWAJITH SHETTY, ADVOCATE, FOR R-1& 2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 27-1-2017 PASSED IN M.V.C. NO.240 OF 2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, M.A.C.T. AT PUTTUR, D.K. AWARDING COMPENSATION OF RS.15,72,000/- WITH INTEREST THEREON AT THE RATE OF 7% PER ANNUM FROM THE DATE OF PETITION, TILL ITS REALISATION.
IN M.F.A. CROB. NO.152/2017:
BETWEEN:
1. SRI BABU GOWDA S/O. BALANNA GOWDA, AGED ABOUT 70 YEARS.
2. SMT. YASHODA VEERAMMA W/O. SRI BABU GOWDA, AGED ABOUT 65 YEARS.
BOTH ARE RESIDING AT MAROLI HOUSE, EDAMANGALA VILLAGE & POST, SULIA TALUK, D.K.DISTRICT.
... CROSS OBJECTORS (BY SRI S. VISHWAJITH SHETTY, ADVOCATE) AND:
1. THE DIVISIONAL CONTROLLER K.S.R.T.C. DEPARTMENT, MANGALORE DIVISION, MANGALORE D.K.
2. SRI SHIVANNA S/O. RAME GOWDA, AGED ABOUT 57 YEARS, RESIDING AT SHETTYHALLI HOUSE AND POST, MADENAHALLI VILLAGE, KATTAYA HOBLI, HASSAN TALUK.
... RESPONDENTS (BY SRI HAREESH BHANDARY T., ADVOCATE FOR R-1) THIS MISCELLANEOUS FIRST APPEAL CROSS-OBJECTION IN M.F.A. NO.4765 OF 2017 IS FILED UNDER ORDER 41 RULE 22(1) OF C.P.C., AGAINST THE JUDGMENT AND AWARD DATED 27-1-2017 PASSED IN M.V.C. NO.240 OF 2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, M.A.C.T., PUTTUR, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MISCELLANEOUS FIRST APPEAL AND MISCELLANEOUS FIRST APPEAL CROSS-OBJECTION ARE COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T Miscellaneous First Appeal No.4765 of 2017 is filed by the K.S.R.T.C., (for short, ‘the Corporation’) seeking reduction of compensation awarded by the Tribunal. Whereas, Miscellaneous First Appeal Cross-objection No.152 of 2017 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
2. The brief facts of the case are that on 24-10-2014 at about 10:30 a.m., the deceased Prashanth, being rider of the motor-cycle, bearing Registration No.KA-19 EJ-0110, was proceeding from Sullia towards Puttur side on the extreme left side of the Sullia – Puttur Main Road. When he reached Kemminje Village, the driver of the K.S.R.T.C. bus, bearing Registration No.KA-19 F-3081, came from opposite direction in a rash and negligent manner and dashed against the motor-cycle of the deceased. As a result of accident, the deceased Prashanth fell on the road and sustained grievous injuries all over the body and died on the spot. Therefore, the parents of the deceased filed a claim petition before the Tribunal and sought a compensation of Rs.20,00,000/-. After going through the documentary and oral evidence, by the impugned award, the Tribunal granted a compensation of Rs.15,72,000/-. Hence, the appeal for reduction of the award and cross-objection for enhancement before this Court.
3. The claimants in support of their contentions have examined one of them as P.W.1 and have also produced F.I.R., complaint, spot mahazar, spot sketch, post-mortem report, I.M.V. report, and charge-sheet. It is further case that the deceased was working for Coastal Hatcheries for two years prior to the accident and was paid salary of Rs.14,000/- per month. Salary Certificate is produced as Ex.P.9 and the same is identified by P.W.3, the Manager of Coastal Hatcheries.
4. The learned counsel for the Corporation submits that the evidence of P.W.1, father of the deceased, who has deposed that the deceased was working in the Coastal Hatcheries for the last two months before the accident. Whereas, P.W.3, the Manager of the Coastal Hatcheries, in his evidence, has identified the Salary Certificate issued by the Company for the month of October – 2014 and has stated that the deceased was working in his Company for the last two years prior to the accident. The learned counsel submitted that the evidence of P.W.1 is contrary to the evidence of P.W.3. He further submitted that the Tribunal has not considered the performance allowance of Rs.2,500/- out of the salary as the same is not an income, but it is only an allowance. Therefore, the learned counsel submitted that proper notional income has to be assessed and consequently, the compensation has to be reduced.
5. The learned counsel for the claimants submits that the Tribunal committed an error by not adding any sum to the income of the deceased towards ‘future prospects’ while determining the compensation under the head ‘loss of dependency’. To substantiate the same, the learned counsel referred the evidence of P.W.3 and Ex.P.9 and submitted that on the date of the accident, it is proved that the deceased was working for the last two years in the said Company and has established the stable income. The learned counsel also referred the judgment of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS (2017 SCC ONLINE SC 1270). Therefore, he prays for enhancement.
6. I have heard the learned counsel for both sides and perused the judgment and award passed by the Tribunal.
7. As per the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi (supra), while determining the income, an addition of 50% of actual salary to be added to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years. Thus, considering the evidence of P.W.3 that the deceased was working for his company for the last two years prior to the accident and the same is established by salary certificate marked at Ex.P.9 and the deceased was aged 22 years, in that circumstance and in view of the Pranay Sethi’s case (supra), the claimants are entitled for future prospects. The Corporation succeeds in deducting Rs.2,500/- towards performance allowance since it is held that it is not a part of income, whereas it is only an allowance.
Income has to be assessed as per Ex.P.9 at Rs.11,500/- (Rs.14,000/- as awarded by the Tribunal minus Rs.2,500/- towards performance allowance). 50% of the future prospects of the deceased comes to Rs.5,750/- (Rs.11,500 X 50%). In total, Rs.17,250/- (Rs.11,500 + Rs.5,750). Therefore, by taking the income of the deceased as Rs.17,250/- per month with the application of multiplier ‘18’ and as per the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi (supra), 50% of the income has to be assessed towards future prospects and 50% towards personal expenses, in that circumstance, it works out to Rs.18,63,000/- (Rs.17,250 x 50% = Rs.8,625 x 12 x 18). The claimants are entitled to Rs.40,000/- under ‘conventional heads’ as against Rs.20,000/- awarded towards ‘loss of love and affection, Rs.20,000/- awarded ‘funeral expenses’ and Rs.20,000/- awarded towards ‘loss of estate’.
8. Thus, the compensation awarded by the Tribunal is re-assessed as under:
HEADS Rs.
Loss of dependency 18,63,000.00 Conventional heads * Love and affection 40,000.00 *20,000.00 Total *19,23,000.00 Less: Compensation awarded by the Tribunal 15,72,000.00 TOTAL *3,51,000.00 9. As the total compensation of Rs.15,72,000/- awarded by the Tribunal for the death of deceased is found to be less than *Rs.19,23,000/- as determined above, there is no scope for reduction.
10. Accordingly, the appeal filed by the Corporation is rejected and cross-objection filed by the claimants is partly allowed. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimants are entitled for an additional compensation of * Corrected vide Court order dated 05.04.2019 *Rs.3,51,000/- (Rupees three lakh *fifty-one thousand only) with interest at the rate of 7% per annum from the date of claim petition till the date of realisation. The Corporation is directed to deposit the enhanced amount, along with interest, with the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The amount so deposited by the Corporation shall be released forthwith to the claimants as per the terms of the award by the Tribunal.
Sd/-
JUDGE kvk * Corrected vide Court order dated 05.04.2019