IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR M.F.A. NO.20 OF 2018 (MV) C/W M.F.A. NO. 5255 OF 2018 (MV) M.F.A. NO.20 OF 2018 (MV) BETWEEN The Managing Director KSRTC, Bengaluru and Chamarajanagara Division, Service Address:
The Divisional Manager KSRTC Bus Stand, Ashoka Road, Tumakuru, (Owner of the Bus bearing No. KA-10-F-0124) Now through Chief Law Officer, KSRTC, Bangalore. ... Appellant (By Sri K. Nagaraja., Advocate) AND 1. Sri Chikkanna S/o Late. Dodda Kamanna Aged about 57 years, 2. Smt. Shobha @ Soubhagyamma D/o Chikkanna Aged about 35 years, 3. Smt. Siddamma D/o. Chikkanna Aged about 33 years 4. Smt. Shashikala B.R. D/o Chikkanna Aged about 29 years, All R/at Chikkanahalli Village, Oderahalli Post, Madhugiri Taluk, Tumkur District. Now R/at Ookere, Madhugiri Road, Tumkur Tq & Dist. -572101. … Respondents (By Sri K. Shantharaj, Advocate for R-1 to R-4) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 01.09.2017 passed in MVC No. 1231/2016 on the file of the VI Additional District and Sessions Judge and Member, Additional MACT, Tumkur, awarding compensation of Rs.12,52,500/- with interest @ 7.5% P.A. from the date of petition till realization.
M.F.A. NO.5255 OF 2018 (MV) BETWEEN 1. Chikkanna S/o Late. Doddakamanna Aged about 58 years, 2. Shobha @ Soubhagyamma D/o Chikkanna Aged about 36 years, 3. Siddamma D/o. Chikkanna Aged about 34 years 4. Shashikala B.R. D/o Chikkanna Aged about 30 years, All are residing at Chikkanahalli Village, Oderahalli Post, Madugiri Taluk, Now Residing at Oorukere, Madugiri Road, Tumkur Tq & Dist. -572101. ... Appellants (By Sri K. Shantharaj., Advocate) AND The Managing Director KSRTC, Bengaluru and Chamarajanagar Division, K.H. Road, Shanthinagar, Bengaluru – 560 027. … Respondent (By Sri K. Nagaraja, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 01.09.2017 passed in MVC No. 1231/2016 on the file of the VI Additional District and Sessions Judge and Member, Additional MACT, Tumkur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Appeals coming for admission this day, the court delivered the following:
JUDGMENT Though these matters are listed for admission, with the consent on both sides, they are heard and disposed of finally.
2. MFA No.20/2018 is filed by the KSRTC against the judgment and award dated 01.09.2017 passed in MVC No.1231/2016 by the MACT, Tumkaru challenging quantum of compensation awarded by the Tribunal.
3. MFA No.5255/2018 is filed by the claimants against the judgment and award dated 01.09.2017 passed by the MACT, Tumakuru in MVC No.1231/2016 seeking enhancement of the compensation.
4. The factual matrix of the appeal are as under:
It is stated in the claim petition that on 08.09.2016 at 5.15 a.m., deceased Ravichandra was standing near platform No.10 of the KSRTC bus-stand at Tumakuru. At that time, the driver of the KSRTC bus bearing Reg.No.KA- 10-F-0124 drove it in a rash and negligent manner towards rear side and dashed to the said Ravichandra. Due to the said accident, he fell down and back wheel of the said bus ran over his head. Therefore, he had suffered fatal injuries over the vital parts of his head, and died at the spot. It is further stated that huge amount is spent towards funeral expenses and transportation of the dead body. The deceased was aged 30 years and he was doing agriculture work as well as milk vending business. He was earning Rs.30,000/- per month and contributing towards his family to eak out the life of dependants. On these grounds, the claimants being the legal heirs filed the claim petition seeking compensation.
5. After service of notice, the respondent – KSRTC had put appearance by filing objections and denied the averments made in the claim petition and sought for dismissal of the same.
6. Based on the pleadings of the parties, the Tribunal framed issues. In order to establish the case against the respondent, first claimant got examined as PW.1 and also examined PW.2 and got marked 17 documents as per Ex.P1 to P17. On the side of the respondent RW.1 – Manjunath was examined and no documents were marked in support of their case.
7. After hearing arguments of learned counsel for claimants as well as counsel for respondent – KSRTC, and after evaluation of the oral and documentary evidence such as Ex.P4-P.M.Report, Ex.P5-MVA report, Ex.P10 to 14- the documents in relation to milk vending business of deceased, the Tribunal allowed the claim petition filed by the claimants and awarded compensation of Rs.12,52,500/- with interest @ 7.5% p.a. from the date of petition till realization. It is this judgment which is challenged under these appeals seeking enhancement by the claimants and challenging quantum of compensation by KSRTC.
8. The learned counsel for KSRTC contends that the judgment and award passed by the Tribunal is erroneous in law. The Tribunal on the basis of police documents, held negligency against the driver of the bus and the Tribunal failed to decide as to why the deceased was standing behind the bus instead of standing on the platform. The compensation awarded by the Tribunal in a sum of Rs.12,52,400/- with interest at 7.5%p.a. is on the higher side and needs to be reduced. Further, it is contended that while assessing the income of deceased at Rs.7,500/- and awarding compensation in a sum of Rs.11,47,500/- toward loss of dependency and adding 50% of the income towards future prospects by the Tribunal is totally erroneous as the deceased was not getting any regular fixed income. The same is contrary to the judgment of the Supreme Court in the case of National Insurance Company Ltd., vs. Pranay Sethi and others reported in AIR 2017 SC 5157. He further contends that the rate of interest awarded by the Tribunal @ 7.5% is also on the higher side and it needs to be reduced.
9. Further, he contends that the compensation awarded by the Tribunal under conventional heads is on higher side. The claimants were entitled to only Rs.70,000/- under conventional heads as per the law laid down by the Hon’ble Apex Court in Pranay Sethi’s case stated supra. On all these grounds, learned counsel for KSRTC seeks intervention of this Court and prays to set- aside the judgment and award passed by the Tribunal.
10. Learned counsel for the claimants contends that the Tribunal has erred in taking the income of deceased at Rs.7,500/- p.m. The Tribunal has failed to take note that deceased was working as an agriculturist and doing milk vending business and failed to consider the documents produced in that behalf. Further, he contends that the Tribunal has failed to take note that the deceased was aged about 28 years and he was the only earning member of family consisting of five members. Further he contends that there is no hard and fast rule to deduct 50% towards personal expenses and 1/4th ought to have been deducted and deducting 50% is illegal and hence, the award of the Tribunal needs interference. On all these grounds, learned counsel for the claimants seeks for enhancement of compensation.
11. On careful evaluation of the material on record, it is relevant to state that the accident occurred on 08.09.2016 at about 5.15 AM in the wee hour while the deceased Ravichandra was standing near platform-10 of KSRTC bus stand, Tumkuru, the driver of KSRTC bus bearing Reg.No.KA-10-F-0124 drove the bus in a rash and negligent manner towards the rear side, and dashed against said Ravichandra wherein he had fell down and sustained fatal injuries and died at the spot. The same is indicated in the P.M.Report at Ex.P4 issued by the Doctor. There is no dispute about the death of deceased who sustained injuries on the vital parts of the head and succumbed to the injuries.
12. It is the contention of claimants that deceased Ravichandra was doing agriculture work as well as milk vending business and earning Rs.30,000/- per month. Exs.P10 to 14 discloses that deceased was supplying 13 liters milk every day to MPCS Ltd of Jadegondanahalli of Madhugiri Taluk during his life time. Ex.P.17 discloses that the first claimant had agricultural property at Chikkanahalli at Madhugiri Taluk. The Tribunal having gone through the documentary evidence took the age of deceased as 30 years and multiplier applicable as 17. In the absence of exact evidence, the Tribunal assessed the income of the deceased as Rs.7,500/- and 50% towards future prospects held that gross income of the deceased was Rs.11,250/- p.m. and deducted 50% towards his personal and living expenses. Therefore, net monthly income of the deceased was taken at Rs.5,625/- and awarded compensation of Rs.11,47,500/- towards loss of dependency.
13. As per the judgment of Apex Court in Pranay Sethi stated supra, to get the benefit of the future prospects, the self – employment is to be established. In this case, the deceased was supplying 13 liters milk every day to MPCS Ltd of Jadegondanahalli of Madhugiri Taluk during his life time and Ex.P.17 discloses that the first claimant being the father of the deceased had agricultural property. But the Tribunal has held that no exact evidence is placed to show that the deceased had income of Rs.30,000/- p.m. and took the notional income at Rs.7,500/- p.m. It is relevant to note here that even if the income has not been proved, notional income has to be assessed. For the purpose of notional income, this Court has to take into account several factors like year of accident, the size of the family, place of residence, and the avocation of the claimants. In this case, first claimant being the father of deceased had only son. The other claimants are married. The wife of first claimant is not alive. The father who is aged about 56 years is entirely depending on the income of the deceased. The respondent KSRTC has not placed any evidence to show that claimant No.1 is not dependent on the income of the deceased. Hence, keeping in view this aspect and on careful evaluation of the material on record, and that the deceased was aged 30 years at the time of the accident and having regard to the avocation of the deceased, the monthly income derived by the Tribunal at Rs.7,500/- appears to be on lower side. Keeping in view the evidence of PW.1 as well as documents as per Exs.P10 to P14, the income of the deceased requires enhancement and the same is enhanced to Rs.12,000/-. But learned counsel for the KSRTC submits that adding 50% of income towards future prospects requires to be reduced to 40% in view of Pranay Sethi’s case stated supra. Keeping in view this aspect, the gross income of the deceased would come to Rs.16,800/-. After deducting 50% towards personal and living expenses, the net monthly income of the deceased would be Rs.8,400/-. Hence, the compensation under the head ‘loss of dependency’ would come to Rs.8,400 x 12 x 17 = Rs.17,13,600/-. The enhanced amount under this head would be Rs.5,66,100/- (Rs.17,13,600 - 11,47,500).
14. The Tribunal has awarded Rs.50,000/- towards funeral expenses, Rs.25,000/- towards loss of estate, Rs.25,000/- towards loss of love and affection and Rs.5,000/- towards transportation of dead body of deceased Ravichandra. The Tribunal has awarded in all Rs.1,05,000/- under the conventional heads. As per the ratio of reliance held by the Apex Court in Pranay Sethi’s case the claimants were entitled to only Rs.70,000/- under conventional heads. But it cannot be said that the same is on the higher side keeping in view the concept of love and affection extended in between the deceased to his family members and the reciprocity between them. Hence, there is no need to interfere with regard to this aspect is concerned.
15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Transport- ation of dead body Loss of estate 5,000 Nil 5,000 25,000 Nil 25,000 Total 12,52,000 5,66,100 18,18,100 16. In so far as the rate of interest awarded by the Tribunal @ 7.5% p.a. awarded from the date of petition till realization, is on higher side and the same requires intervention by reducing it to 6% p.a. by allowing the appeal filed by the appellant/KSRTC in part.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER MFA No.20/2018 filed by appellant/KSRTC and MFA No.5255/2018 filed by the claimants are allowed in part. The impugned judgment and award dated 01.09.2017 passed by the Tribunal in MVC No.1231/2016, is hereby modified. The claimants are entitled to an additional compensation of Rs.5,66,100/-, with interest @ 6% p.a. from the date of petition till realization.
The amount in deposit, if any, before this court, shall be transmitted to the concerned tribunal along with the lower court records, forthwith.
The respondent-KSRTC shall deposit the compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to apportionment of deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB