IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2015 :PRESENT:
THE HON’BLE MR. JUSTICE N.K. PATIL AND THE HON’BLE MRS. JUSTICE RATHNAKALA MFA NO. 6619/2014 (MV) BETWEEN:
1.SMT HASINA W/O LATE BABAJAN, AGED ABOUT 35 YEARS, 2.KUM.SALMA D/O LATE BABAJAN, AGED ABOUT 15 YEARS, 3.MASTER KAZAMOHINUDDIN S/O LATE BABAJAN, AGED ABOUT 12 YEARS, ALL ARE RESIDING AT, BISMILLANAGAR, MYSORE ROAD, BANGALORE-560090 PRESENTLY RESIDING AT BAGEPALLI TOWN, NETAJI CIRCLE, 8TH BLOCK, OPPOSITE TO FAROOQ MASJID.
APPELLANTS NO.2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN/THE 1ST APPELLANT SMT. HASINA, W/O LATE BABAJAN.
... APPELLANTS (BY SRI. RODDA VEERSHETTY, ADVOCATE) AND 1.THE MANAGING DIRECTOR A.P.S.R.T.C, MUSHEERABAD, HYDERABAD, ANDHRA PRADESH.
2.SMT.PERIYEENA W/O MOHIDDIN SABI, AGED ABOUT 58 YEARS, R/A BISMILLANAGAR, MYSORE ROAD, BANGALORE-560090 PRESENTLY R/A BAGEPALLLI TOWN, NETAJI CIRCLE, 8TH BLOCK, OPPOSITE TO FAROOQ MASJID ... RESPONDENTS (BY SRI. D VIJAYKUMAR, ADVOCATE FOR R1, NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 10.4.2015 ) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.02.2009 PASSED IN MVC NO.4555/2007 ON THE FILE OF THE XII ADDITIONAL JUDGE AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, N.K. PATIL, J., DELIVERED THE FOLLOWING:
:J U D G M E N T:
Though this appeal is posted for orders, it is taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. This is claimants’ appeal filed against the impugned judgment and award dated 7th February 2009 passed in MVC No.4555/2007 on the file of the XII Additional Judge and Member, MACT, Bengaluru, (hereinafter referred to as ‘Tribunal’ for short), for enhancement of compensation.
3. The Tribunal by its judgment and award has awarded a sum of Rs.2,72,000/- under different heads after deducting 50% contributory negligence on the part of the deceased with interest at 6% per annum from the date of petition till the date of deposit, on account of the death of the deceased late Sri Sampangiramachari , in the road traffic accident.
4. In brief, the facts of the case are:
The 1st appellant is the wife, 2nd and 3rd appellants are minor children of the deceased and 2nd respondent is mother of the deceased and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, the deceased by name Sri. Babajan, on 5.5.2007 at about 1.45 a.m, while driving his Eicher goods vehicle bearing No.KA-40- 1344 on NH-7, near PVC Pipe Factory, Hempapuram village, a APSRTC bus bearing No.AP-11-Z-4200 driven rashly and negligently by its driver, dashed against the deceased, as a result, the deceased sustained grievious injuries and died on the spot. Due to the death of the deceased, the appellants have suffered mental agony and they have spent Rs.40,000/- for transportation of the dead body, funeral and obsequies of the deceased. It is the further case of the appellants that, the deceased was aged about 38 years at the time of accident, hale and healthy and was working as driver of goods vehicle on monthly salary of Rs.9,000/- and looking after the welfare of the family and due to his untimely death, they suffered socially and economically. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record has allowed the claim petition in part and awarded the compensation of Rs.2,72,000 under different heads with interest at 6% p.a., from the date of petition till the date of deposit after deducting 1/3rd towards personal expenses of deceased and 50% towards contributory negligence fixed on the part of the deceased. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.
5. The submission of Sri Rodda Veershetlty, learned counsel appearing for the appellants is that, the Tribunal has failed to assess the just and reasonable income of the deceased and the income of Rs.4,500/- per month assessed by the Tribunal is on the lower side since the accident has occurred on 5.5.2007 and the Tribunal has not assessed the income of the deceased properly. The Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, medical expenses, conveyance, nourishing food and attendant charges, loss of amenities, comfort and happiness and loss of future income. Further, the Tribunal has erred in fixing 50% contributory negligence on the part of the deceased which is contrary to the oral and documentary evidence and there is no negligence on the part of the deceased being driver. Therefore, impugned judgment and award passed by the Tribunal, is liable to be modified by awarding just and reasonable compensation under all heads, fixing entire negligence on the part of the driver of the APSRTC Bus.
6. Per contra, Sri. D.Vijay Kumar, appearing for respondent No.1 – Corporation inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is passed after considering the oral and documentary evidence and interference by this Court is not called for.
7. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:
“Whether the quantum of compensation awarded by the Tribunal is just and reasonable?”
8. It is not in dispute that the deceased died in the road traffic accident. Further it is not in dispute that, the deceased was aged about 38 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The income of the deceased is stated to be Rs.9,000/- p.m. The accident has occurred on 5.5.2007 and by profession he was driver of goods vehicle. Due to his un-timely death, claimants have lost their only breadwinner and facing great mental shock and monetary loss. The claimants are none other than the wife,children and mother of the deceased, who have lost their future security due to his untimely death. Taking all these aspects into consideration, the appellants have made out a case for enhancement of reasonable compensation under different heads. Having regard to the age, avocation and year of accident, we can safely re-assess the income of the deceased at Rs.5,500/- per month, to meet the ends of justice as against the income assessed by the Tribunal. Out of it, if 1/4th is deducted towards the personal expenses of the deceased, it comes to Rs.4,125/-. In the light of the decision in SARLA VERMA’S CASE [2009 ACJ 1298], the appropriate multiplier applicable is 15. Accordingly, the appellants are entitled towards loss of dependency at Rs.7,42,500/- (Rs.4,125/-x12x15).
9. Considering the facts and circumstances of the case that, the wife has lost her life partner at an young age and the minor children have lost the love and affection, inspiration and guidance in life and mother has lost future security, we deem it fit to award Rs.50,000/-/- towards loss of consortium, Rs.25,000/- towards loss of estate, Rs.40,000/- towards loss of love and affection, and Rs.25,000/- towards funeral and transportation expenses. In all, the claimants are entitled for Rs.8,82,500/-.
10. Regarding contributory negligence fixed by the Tribunal at 50% on the part of the deceased which can be seen that the Tribunal after critical evaluation of the oral and documentary evidence available on file, particularly Ex.P3 sketch and Ex.P4 inquest report has fixed contributory negligence at 50% on the part of the deceased. The reasoning given by the Tribunal at Para-9 of its judgment in respect of issue No.1 that the accident in question is on head of collision between the two vehicles and the investigation report submitted by the Andra Pradesh Police discloses regarding the equal rash and negligent manner by the drivers of both the vehicles, is just and proper, as the same is passed on the basis of documentary evidence available on file, hence interference by this Court is not called for and we uphold the contributory negligence fixed on the part of the deceased at 50% .
11. Therefore from the total amount Rs.8,82,500/-, if 50% contributory negligence on the part of the deceased is deducted, it comes to Rs.4,41,250/- as against Rs.2,72,000/-awarded by the Tribunal.
12. Having regard to the facts and circumstances of the case as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 7.2.2009 in MVC No.4555/2007 is hereby modified. The total compensation payable comes to Rs.4,41,250/- as against Rs.2,72,000/- awarded by the Tribunal. There will be an enhancement of Rs.1,69,250/- with 6% interest per annum.
The 1st respondent is directed to deposit the enhanced compensation of Rs. 1,69,250/- with interest at 6% p.a., from the date of petition till the date of realization, excluding interest for the delayed period of 1979 days in filing the application, within three weeks from the date of receipt of a copy of this judgment.
Out of the enhanced compensation, Rs.1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 1st appellant/wife Smt. Hasina for a period of ten years and renewable for another ten years, with liberty to her to withdraw the interest accrued on it.
The remaining Rs.69,250/- with proportionate interest shall be released in favour of the 1st appellant and respondent No.2-
mother of the deceased, immediately, on deposit by the 1st respondent, in equal proportion.
Draw the award, accordingly.
Sd/- JUDGE Sd/- JUDGE ra