IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MFA NO.5806 OF 2016 (MV) C/W MFA CROB. NO.133/2017 IN MFA NO.5806 OF 2016 BETWEEN:
THE MANAGER KSRTC BENGALURU DIVISION K H ROAD, SHANTHINAGAR BENGALURU – 560 027 REPRESENTED BY CHIEF LAW OFFICER (BY SRI.G LAKSHMEESH RAO, ADV.) AND:
1. A.AZZEZ KHAN S/O A REHAMAN AGED 72 YEARS R/A 2ND GUMBAZ ROAD, GANJAM S R PATNA TOWN - 571 438 MANDYA DISTRICT ... APPELLANT 2. K NAZIYA KHAN W/O LATE MAHAMMED AYUB AGED 25 YEARS 3. FATHIMA ERAM D/O LATE MAHAMMED AYUB AGED 7 YEARS RESPONDENT 3 BEING MINOR, REPRESENT`1ED BY THEIR NATURAL GUARDIAN MOTHER RESPONDENT NO.2 SMT.K.NAZIYA KHANAM RESPONDENT NOS.2 & 3 ARE R/A NO.73, KEMMANNUGUNDI ROAD GANJAM, S R PATNA TOWN - 571 438 MANDYA DISTRICT ... RESPONDENTS (BY SRI.V SRINIVAS, ADV. FOR R2; (R3 MINOR REP. BY R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.02.2016 PASSED IN MVC NO.340/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATNA, AWARDING COMPENSATION OF RS.16,79,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.
IN MFA CROB. NO.133/2017 BETWEEN:
1. K.NAZIYAKHAN W/O LATE MAHAMMED AYUB AGED ABOUT 26 YEARS 2. FATHIMA ERAM D/O LATE MAHAMMED AYUB AGED ABOUT 8 YEARS (APPELLANT NO.2 BEING MINOR REPRESENTED BY THEIR NATURAL MOTHER K NAZIYA KHANAM, AS HER MINOR GUARDIAN AND NEXT FRIEND ALL ARE R/A NO.73, KEMMANNUGUNDI ROAD GANJAM, SRIRANGAPATNA TOWN – 571 438 MANDYA DISTRICT (SINCE AZEEZ KHAN IS DEAD HENCE NOT MADE PARTY) ... CROSS OBJECTORS (BY SRI.SRINIVAS V, ADV.) AND:
THE MANAGER K.S.R.T.C. BANGALORE DIVISION K H ROAD SHANTHINAGAR BANGALORE – 560 027 ... RESPONDENT (BY SRI.G LAKSHMEESHA RAO, ADV. ) THIS MFA CROB IN MFA NO.5806/2016 IS FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 26.02.2016 PASSED IN MVC 340/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA AND MFA CROB.COMING ON FOR ORDERS, THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT Memo is filed seeking to treat respondents No.2 and 3 as legal representatives of Respondent No.1. Memo is taken on record. Respondents No.2 and 3 are treated as legal representatives of respondent No.1. No need to take steps to bring legal representatives of respondent No.1.
2. For the reasons stated in the affidavit accompanying the application, IA.I of 2016 is allowed. Delay of 73 days caused in filing the cross-objections is condoned.
3. Heard the learned counsel for both the parties. The learned counsel for the respondent-claimant submits that he had also filed cross-objections for enhancement of compensation.
4. This Miscellaneous First Appeal and the Cross- objections are filed against the judgment and award dated 26th February 2016 passed in MVC No.340 of 2014 by the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Srirangapatna. In the appeal filed by the Karnataka State Road Transport Corporation the grounds taken are with regard to negligence and quantum. The Cross-objections are by the claimants seeking enhancement in the compensation.
5. As regards negligence is concerned, the learned counsel for the Corporation submits that while overtaking the bus, the deceased hit the divider and had a fall and suffered injuries resulting in death and hence the deceased himself has committed negligence and this aspect has not been considered by the Tribunal. In order to prove the negligence of the deceased, PW2 who was the inmate of the bus, has been examined. The learned counsel submits that if Exhibits P4 and P5 viz. the spot mahazar and sketch, as also the evidence of PW2 is considered conjointly, it would establish without any doubt that the rider of the two wheeler himself has contributed for accident and this aspect should have been taken into consideration. He has also relied the order of the Criminal Court in CC No.66 of 2013 where the Driver of the bus was charge- sheeted for the offence punishable under Sections 279, 337 and 304(A) of the IPC in which he has been acquitted. It was observed that the driver of the bus has not committed any negligence. Accordingly, the learned counsel for the appellant- KSRTC submits that the claim petition should have been dismissed or the negligence should have been fastened on the rider of the two-wheeler.
6. The next submission by the learned counsel is as per decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 SCC ONLINE SC 1270, it is held that all put together the compensation of Rs.70,000/- be awarded under the conventional heads, whereas in the instant case, the Tribunal has awarded Rs.2,75,000/- which needs to be modified.
7. In the cross-objection filed by the claimants seeking enhancement of compensation, the ground taken is that the income taken by the Tribunal is at Rs.6,500/- per month which is lower in side. Though it is pleaded that he was earning an income of Rs.10,000/- per month, the same has been disbelieved by the Tribunal. The learned counsel submits that even in Lok Adalats, the notional income would be taken with reference to the year of accident and size of the family. Hence he submits to enhance the compensation.
8. Heard the learned counsel for the parties and gone through the judgment of the Tribunal. As regards the submission of the learned counsel for the appellant-KSRTC with regard to negligence is concerned, the Tribunal, in the course of its judgment relying upon the judgment of the Hon'ble Supreme Court in the case of BIMLADEVI AND OTHERS v. HIMACHAL ROAD TRANSPORT CORPORATION reported in AIR 2009 SC 2819, wherein the Apex court has held that the petitioner is required only to establish his case on the touch stone of the preponderance of probabilities and standard of proof beyond reasonable doubt cannot be applied in a road accident claim case; and the judgment of this court in the case of MALLAMMA v. BALAJI AND OTHERS reported in ILR 2003 KAR 493, and has observed that in a criminal case the offence alleged against the accused shall be proved beyond reasonable doubt. In a MVC case such principle is not applicable. We do not find any error in the reasons assigned by the Tribunal. Hence, the submission of the learned counsel is to be rejected, accordingly rejected. As regards the submission of quantum is concerned, we have gone through the award and it is found that the Tribunal has considered all the materials and evidence on record and has awarded just compensation. Accordingly the submission made on quantum is also liable to be rejected and the same is rejected.
9. In the appeal filed by the claimants seeking enhancement is concerned, we find some force in the submission of the learned counsel that the income taken by the Tribunal is on the lower side. In the cases where the claimants fail to prove the static income, this court consistently assess the income notionally, taking into consideration the year of accident, size of the family/number of dependents, place of residence and the cost of living prevalent then, etc.. With relevance to the accident of the year 2013, this court takes the notional income at Rs.8,500/- per month and the same is taken in this case also. Since the deceased is a bachelor, as per the judgment of the Hon’ble Supreme Court in the case of SARLA VARMA, out of income 50% is to be deducted towards the personal expenses of the deceased and accordingly the income would be Rs.4,250/- per month. Further, the Tribunal has taken the future prospects at 50% since the private employment/self-employment has been established. But, as per the judgment of PRANAY SETHI (supra) adding of future prospects should be at 40% and not at 50%. To that extent the Tribunal has committed an error. Hence, the future prospects taken by the Tribunal is to be reduced at 40% as against 50%. If 40% future prospects is added to Rs.4,250/- it comes to Rs.5,950/-. Accordingly, the calculation would be Rs.5,950/- x 12 x 18 which comes to Rs.12,85,200/-. The same is awarded as against Rs.14,04,000/- awarded by the Tribunal under the head loss of dependency. As per the decision of the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), all put together, Rs.70,000/- is awarded under the conventional heads as against Rs.2,75,000/- awarded by the Tribunal. To that extent the award of the Tribunal stands modified. In the result, both the appeal filed by the Appellant-KSRTC and the cross-objection filed by the claimants stand disposed of.
Sd/- JUDGE Sd/- JUDGE lnn