IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY 2019 BEFORE THE HON’BLE Mr.JUSTICE BELLUNKE A.S.
MISCELLANEOUS FIRST APPEAL NO.689 OF 2013(MV) BETWEEN:
1. SMT. GEETHA W/O LATE KRISHNA ALIAS KRISHNAPPA AGED ABOUT 28 YEARS 2. KUMARI SHREYA D/O LATE KRISHNA ALIAS KRISHNAPPA AGED ABOUT 7 YEARS 3. KUMARI SARIKAK D/O LATE KRISHNA ALIAS KRISHNAPPA AGED ABOUT 5 YEARS APPELLANTS 2 AND 3 ARE THE MINORS, REPRESENTED BY NATURAL MOTHER AND GUARDIAN SMT. GEETHA-APPELLANT NO.1.
ALL ARE RESIDENTS OF NO 13/2 NEAR ANJANEYA TEMPLE BHATTARAHALLI, BENGALURU EAST TALUK, BENGALURU -49.
4. SMT YELLAMMA W/O LATE VENKATAPPA AGED ABOUT 61 YEARS RESIDENT OF NO.12 3RD CROSS, BATTARAHALLI MANJUNATH LAYOUT BENGALURU-49 …. APPELLANTS (BY SRI LOKESH MALAVALLI, ADVOCATE) AND:
1. THE NEW INDIA ASSURANCE COMPANY LIMITED.
2. H.S.C BOSE S/O RAMACHANDRA RAO ANJAN TRAVELS, NO.326, A.V.ROAD, KALASIPALYAM BENGALURU-02 ... RESPONDENTS (BY SRI KISHOR KUMAR REDDY FOR R-1 NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED 24.06.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.10.2012 PASSED IN MVC NO.1279/2012 ON THE FILE OF MEMBER, PRINCIPAL MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
This appeal coming on for hearing this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. This appeal is preferred by the claimants in M.V.C.No.1279 of 2012 on the file of Principal M.A.C.T., Bengaluru against the judgment and award passed therein dated 05.10.2012.
3. Brief facts of this case are as under:
That on 25.11.2011 at about 7.00 a.m., the husband of the first petitioner and father of petitioners No.2 and 3 and son of petitioner No.4 was standing on the left side of the road near Battarahalli bus stand in order to go to attend his work. At that time, a Volvo bus bearing Reg.No.KA-01- AA-3231 came from Kolar side in a rash and negligent manner and dashed against Krishna @ Krishnappa causing his death at the spot. He was working as a Darner and earning a sum of Rs.20,000/- per month. On account of untimely death of the bread winner, the petitioners have suffered mental shock, loss of love and affection, consortium, etc., Therefore, they have filed a petition before the M.A.C.T. claiming compensation of Rs.20,00,000/- from the respondents.
4. In response to the notice issued, Respondent No.1 appeared and filed objections denying the averments made in the petition. The manner of accident, age of the deceased, his profession, loss of income and relationship of the petitioners with the deceased, etc., are all denied. The rash and negligent act attributed to the bus is also denied. It is also denied that the driver of the bus had no valid driving license on the date of the accident. Therefore, there is a breach of policy and hence, the Insurer is not liable to satisfy the award.
5. On the above said pleadings, the following issues are framed by the Tribunal:
i) Whether the petitioners prove that the deceased succumbed to the injuries sustained in a motor vehicle accident that occurred on 25.11.2011 at about 7.00 a.m., near Battarahalli Bus Stop, Bengaluru-Kolar NH-4 by rash and negligent driving of bus bearing Reg.No.KA-10-AA- 3231 by its driver?
ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
iii) What order?
6. After holding trial, the issues were answered by the M.A.C.T. as under:
Issue No.1 : Partly in the affirmative Issue No.2 : Partly in the affirmative Issue no.3 : As per final order.
7. Consequently, the impugned award was passed awarding compensation of Rs.10,79,400/- to the petitioners on all the heads. The Tribunal also found that the deceased has contributed to the accident to the tent of 25%. Therefore, the Tribunal reduced the compensation amount by 25% and directed Respondent No.1 Insurance Company to pay a sum of Rs.8,09,550/- with interest and costs. The Tribunal had also reduced a sum of Rs.10,000/- which the claimants had received under the E.S.I. Act, 1948.
8. On the point of legal issue also, the Tribunal also upheld the claim of the claimants. The said judgment and award has been questioned by the appellants on the following grounds:
It is contended that the finding of the Tribunal as regards contributory negligence on the part of the deceased is against the evidence on record. The compensation awarded on all the heads including conventional heads is on the lower side. The Tribunal has wrongly assessed the income of the deceased at Rs.5,980/- instead of gross salary of Rs.6,868/- per month. The Tribunal has also wrongly deducted a sum of Rs.10,000/- on the ground that the deceased was covered by E.S.I. Therefore, the appellants sough for enhancement of the compensation and claim of just compensation.
9. Learned counsel for the appellants submitted in terms of the appeal grounds.
10. Learned counsel for the respondents submitted that the finding of the Tribunal with regard to contributory negligence on the part of the deceased to the tune of 25% is justifiable. The compensation awarded I just and proper and therefore, he has sought to dismiss the appeal.
11. On the basis of the above facts and arguments, the points that arise for consideration in this appeal are:
i) Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the deceased in the accident alleged is sustainable in law, facts and evidence on record?
ii) Whether the claimants are entitled for enhancement of the award than what is awarded by the M.A.C.T. in the impugned judgment? If so, what is the quantum?
12. According to the petition averments, the deceased was said to be standing by the left side of the road near Battarahalli Bus Stand in order to go to his work place. The main reasonings that are assigned by the Tribunal to come to a conclusion that the deceased had contributed for the accident in question is on the ground that the deceased was crossing the road. The driver was also not examined. The Tribunal found that there was rash and negligence on part of the driver of the bus. Therefore, in the absence of rebuttal evidence by the bus driver, the Tribunal could not have jumped to the conclusion that there was contributory negligence on the part of the deceased to the tune of 25%. Ex.P3 is the sketch of the scene of the offence. The sketch of accident is shown at a distance of 10 feet from the left side edge of the road. The entire width of the road is about 40 feet. Though the Tribunal found that even after the deceased was found to be crossing the road, he was admittedly at a distance of 10 feet from the road. That shows the deceased himself have crossed 30 feet width of the road and he was about to reach left side of the road. The Tribunal also found that the driver of the bus had not made any attempt to avoid the accident either by applying the break or by taking the bus towards the right side where there was sufficient width. Therefore, there was no reason for the Tribunal to attribute negligence on the part of the deceased on the ground that he was crossing the road. Merely because a person crosses the road, it cannot be said that he is negligent. If it were to the case of the respondent that the deceased suddenly came across the road and there was no chance for the driver to avoid the accident inspite of making all efforts then contribute negligence could have been attributed to the driver. In the absence of above such facts, I find that the Tribunal committed an error in attributing 25% of negligence to the deceased. Therefore, the said finding is liable to be set aside having regard to the facts and circumstances of the case and evidence available on record.
13. Now coming to the quantum of compensation, the undisputed facts are that the deceased was working in a private garment factory and he had a fixed salary income. The age of the deceased is admittedly 36 years. Therefore, he falls in the group of persons below 40 years. In that case, as per the law laid down by the Hon’ble Apex Court in Pranay Sethi’s case, the future prospects that has to be taken should have been 40% instead of 30%. On perusal of the salary certificate produced by the claimants, the last salary that was drawn by the deceased, the gross salary is Rs.6868/-, which includes overtime payment of Rs.462/-, special allowance of Rs.1613/-, attendance bonus of Rs.400/-, basic Rs.3,087 + D.A. Rs.1306/-, special allowance of Rs.50 and Rs.62/-. The deceased was also contributing Rs.527 towards Provident Fund and Rs.120/- contribution towards E.S.I. Therefore, none of the deductions can be deducted from the income of the deceased. Therefore, the Tribunal should have taken the gross income of the deceased at Rs.6,868/- which was paid to the deceased while he was alive in the month of July, 2011. The deceased died in the month of the November after working for 24 days. The Tribunal relying on the last payment of salary made for 24 days held that the income of the deceased was Rs.5979/- shown in Ex.P16. The Tribunal erred in not taking into consideration that the gross salary shown in Ex.P15. It has also noticed that the Tribunal has not considered the fact that the deceased was a skilled labour, i.e., darner. On perusal of Ex.P15, which is the last salary that was paid to the deceased was for 24 days because on 25.11.2011, the deceased died. The salary paid for 24 days is Rs.5,979/- in the month of November, another six days left over. If salary is calculated for thirty days, the gross monthly salary payable was Rs.5979/- for 24 days + Rs.1,594/- = Rs.7,473/-. Per day salary at that rate comes to Rs.249.12, which is rounded off to Rs.250/-. If it is calculated for thirty days, the salary would be Rs.7,500/- per month. Therefore, on recalculation, the gross salary of the deceased would come to Rs.7,500/- per month and not Rs.5979/- which was only for 24 days, 40% of the said salary would be Rs.3,000/-. The future prospects of 40% is added. The gross salary of the deceased would come to Rs.10,500/- per month. The deceased was aged about 36 years, so the multiplier applicable would be ‘15’. Rs.10,500 X 12 X 15 = Rs.18,90,000/-; 1/4th is deducted towards personal expenses (R.4,72,500/-) = Rs.14,17,500/- towards loss of dependency.
14. As per the law laid down by the Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram reported in 2018 ACJ 2782 and also the law laid down in Pranay Sethi case, the first petitioner being the wife of the deceased is entitled for spousal consortium at Rs.40,000/-
+ Rs.15,000/- loss of estate + transportation of dead body and funeral expenses is Rs.15,000/- = Rs.70,000/-. In addition to that, minor children petitioners No.2 and 3 and petitioner No.4 being the mother of the deceased are entitled for compensation on the head of parental consortium on account of pre-matured death of the father of petitioners No.2 and 3. Petitioner No.4 being the mother is entitled for compensation on the ground of loss of love and affection at Rs.40,000/-. Therefore, the total compensation payable on the above heads would be Rs.70,000/- + Rs.40,000/- + Rs.40,000 + Rs.40,000 = Rs.1,90,000/-. The Tribunal committed an error in awarding lesser compensation than what the petitioners were entitled. The Tribunal wrongly deducted a sum of Rs.10,000/-, the amount paid by the E.S.I. Corporation, i.e., the amount which the deceased was entitled on account of his contribution towards the E.S.I. at the rate of Rs.120/- per month for the month of June 2011 and Rs.85/- for the month of November 2011. Therefore, that could not have been deducted by the Tribunal. Therefore, for all the aforesaid reasons, the compensation payable to petitioners is quantified as under:
Loss of dependency Rs.14,17,500/-
Spousal consortium Rs.40,000/-
Loss of estate, transportation of dead body & funeral expenses Petitioners No.2 to 4 are entitled for parental consortium, loss of love and affection Rs.30,000/-
Rs.1,20,000/-
TOTAL Rs.16,07,500/-
14. Therefore, the gross compensation payable to the petitioners would be Rs.16,07,500/-, out of that amount, the Tribunal has already awarded a sum of Rs.8,09,550/- which has to be deducted. Hence, the enhanced compensation payable would be Rs.7,97,950/-. The petitioners are entitled for interest at 6% p.a. on the enhanced compensation from the date of petition till the entire amount is deposited by the Insurer. The apportionment and deposit as ordered by the Tribunal is confirmed. For all the above reasons, I pass the following:
ORDER i) The appeal is partly allowed.
ii) The appellants are entitled for interest at the rate of 6% p.a. on the enhanced compensation (Rs.7,97,950 + Rs.10,000 ESI amount) Rs.8,07,950/- from the date of the petition till the entire amount is deposited by the Insurer.
iii) The Insurer shall deposit the enhanced compensation amount within six weeks from the date of receipt of certified copy of this order.
iv) The amount in deposit, if any, could be transmitted to the concerned Tribunal for disbursement.
Sd/- JUDGE DH