IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 5389 OF 2018 (M V) BETWEEN 1. M. MALLIKARJUNA GOWDA S/O LATE MARIKENCHEGOWDA AGED ABOUT 62 YEARS 2. PREMA W/O M. MALLIKARJUNA GOWDA AGED 52 YEARS BOTH ARE RESIDING AT BEVINAHALLI VILLAGE SOSALE HOBLI T NARASIPURA TQ., MYSORE DISTRICT NOW R/AT MARASINGANAHALLI VILLAGE ARAKERE HOBLI SRIRANGAPATNA TQ MANDYA DISTRICT-571438. ... APPELLANTS (BY SRI. M. Y. SREENIVASAN - ADV.,) AND THE DIVISIONAL CONTROLLER KSRTC, MANDYA DIVISION MANDYA-571401. ... RESPONDENT (BY SRI. K. NAGARAJA - ADV.,) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.11.2017 PASSED IN MVC NO. 1678/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT SRIRANGAPATNA, PARTLY ALLOWING THE CALIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is filed by the appellants/claimants against the judgment and award dated 28.11.2017 passed in MVC No.1678/2016 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that the first claimant is the father and second claimant is the mother of deceased B.M.Ravikumar. On 6.6.2016 at about 11.30 to 12.00 noon, on Doddaballapura – Nelamangala road, opposite to Himmat Singh Factory Lands, near Akashavani Kendra, at Kadanuru village cross, when deceased B.M.Ravikumar was proceeding in his splendor Plus motor cycle bearing Reg.No.KA-55-Q-6284 along with pillion rider, at that moment, the driver of KSRTC bus bearing reg.No.KA-40-F-187 drove the same in a rash and negligent manner in high speed and dashed the motor cycle as a result of which deceased B.M.Ravikumar succumbed to the injuries and his vehicle was badly damaged. Due to the untimely death of deceased B.M.Ravikumar, the petitioners who were depending upon his income, filed the claim petition before the Tribunal seeking compensation.
4. Upon service of notice, the respondent – KSRTC appeared before the Tribunal and filed written statement denying the petition averments and also the nature of the accident and sought for dismissal of the claim petition. Based upon the pleadings, the Tribunal framed issues for consideration. In order to establish their case, the petitioner no.1 got himself examined as PW.1 and got examined one witness as PW.2 and got marked Exs.P1 to P15. The driver of the KSRTC bus was examined as RW.1 and Ex.R1 was marked on behalf of the respondent. After hearing the arguments addressed by the learned counsel for the petitioners as well as respondent – KSRTC and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment awarding compensation in a sum of Rs.12,43,800/- with interest @ 9% p.a. from the date of filing the petition till the date of deposit. It is this judgment which is challenged under this appeal by urging various grounds.
5. Learned counsel for the appellants contends the monthly income of the deceased assessed by the Tribunal is on lower side and it needs enhancement. Further, the Tribunal has wrongly calculated the future prospects; no compensation has been awarded under the head loss of love and affection as it is a case of death of a bachelor; further the compensation awarded under the conventional heads are on lower side and it needs to be enhanced. On these grounds, learned counsel for the appellants/claimants seeks intervention of this court to modify the impugned judgment and award passed by the Tribunal.
6. Per contra, the learned counsel appearing for the respondent – KSRTC contends that the petition filed by the petitioners is not maintainable either in law or on facts. Further he denied the nature of accident and also the age, income, occupation and interest claimed by the petitioners and he also denied that due to the accident the deceased sustained injuries. He further contends, that the accident occurred not due to the negligence of the driver of KSRTC bus but due to the contributory negligence of the rider of the motor bike. The Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
7. In this background of the contentions taken by the learned counsel for the appellants as well as respondent – KSRTC it is relevant to state that there is no dispute with regard to death of B.M.Ravikumar on 06.06.2016 who succumbed to the injuries as a result of the accident. The contention in this regard is supported by the documentary evidence such as FIR, Complaint, Charge sheet, P.M.Report, inquest report, spot mahazar, IMV report, D.L. R.C.book of tractor and trailer, death certificate, notarized adhar card etc., which is marked as per Exs.P1 to P15. Ex.P4- P.M.Report reveals that the death of deceased was due to severe hemorrhage and shock which is due to multiple grievous injuries to the vital parts of the body.
8. Ex.P10 and P11 reflects that deceased was the owner of the Tractor and trailer. Ex.P8 is the driving license of deceased to ride the motor cycle, LMV, Trans, PSV bus. The Tribunal by considering the year of accident, avocation of the deceased and age of deceased as 28 years and assessing the income at Rs.8,500/- p.m. awarded compensation of Rs.12,13,800/- towards loss of dependency. But having regard to the avocation of deceased and the year of accident, and that he was the owner of Tractor and trailer as on the date of accident, the income of the deceased is required to be enhanced to Rs.9,500/-. The Tribunal while relying on the decision of the Hon’ble Apex Court in National Insurance Co.Ltd., vs. Pranay Sethi, has erred in calculating the amount towards future prospects. Keeping in view all these aspects, the compensation under the head loss of dependency would work out as under:
Income per month 9,500 Add: future prospects @ 40% 3,800 13,300 Less: 50% personal expenses 6,650 6,650 Rs.6,650 x 12 x 17 = 13,56,600/-
Further, the Tribunal has awarded Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. In all Rs.30,000/- is awarded under conventional heads, which appears to be just and proper and does not call for interference.
In view of the above findings, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 28.11.2017 passed by the Tribunal in MVC No.1678/2016 is hereby modified. The appellants/claimants are entitled for enhanced compensation of Rs.1,42,800/- with interest @ 9% p.a. from the date of petition till realisation.
The Respondent-KSRTC shall deposit the enhanced 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 released to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and apportionment is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB