IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL No.3377/2016 (MV – D) BETWEEN :
1. SMT. MAHADEVAMMA, W/O LATE HONNAPPA, AGED ABOUT 49 YEARS, 2. SRI. PRADEEP, S/O LATE HONNAPPA, AGED ABOUT 31 YEARS, 3. SRI.SOMASHEKAR, S/O LATE HONNAPPA, AGED ABOUT 33 YEARS, ALL ARE RESIDING AT NO.287, CHAMUNDINAGAR, RAJAJINAGAR, BANGALORE – 560 010. ... APPELLANTS (BY SRI. M. RAGHAVENDRACHAR FOR SRI. NAGARAJU M., ADVOCATES) AND:
B.M.T.C.
RES. CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BANGALORE – 560 027. REPRESENTED BY ITS MANAGING DIRECTOR.
(BY SRI. D.VIJAYA KUMAR, ADVOCATE) ... RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.08.2014 PASSED IN MVC NO.6586/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel for both sides, it is heard finally.
2. This appeal is filed by the claimants in MVC 6586/2012, for enhancement of compensation and modification of the judgment and award passed by the XX Additional Small Causes Judge, Member, MACT, Bangalore (SCCH 22), awarding a compensation of Rs.2,00,000/- with interest at 6% per annum from the date of petition till the date of realization.
3. The facts briefly stated are that :
On 06.09.2012, the deceased Honnappa was proceeding on his TVS moped bearing registration No. KA-02-ES-2065 on Hebbala Ring Road, Bangalore. When he reached near Boopasandra Railway gate, a bus bearing registration No. KA-01-FA-1453 came in a high speed and in a rash and negligent manner dashed against the moped of the deceased. As a result of the said accident, the deceased fell down and sustained grievous injuries. He was shifted to Baptist Hospital. Despite taking medical treatment for five days, he succumbed to the injuries. On account of the untimely death of the deceased, the family members have become orphans and they have been deprived of financial support. The respondent, being the owner and insurer of the offending vehicle, is liable to pay compensation. With these assertions, the claim petition was filed.
4. On service of notice, the respondent appeared through its counsel and filed objections denying the averments made in the claim petition and specifically contended that the accident was due to negligence of the deceased himself.
5. On the basis of the pleadings, the Tribunal formulated the following issues :
1) Whether the petitioners prove that the motor vehicle’s accident which occurred on 06.08.2012 at about 5 p.m. on Boopasandra Railway Gate, Hebbala Ring Road, Bangalore, was due to rash and negligent driving of BMTC bus bearing registration No. KA-01-FA-1453 by its driver and in the said accident, deceased Honappa succumbed to the injuries ?
2) Whether the petitioners are entitled for compensation ? If so, how much and from whom ?
3) What order or award ?
6. In order to substantiate their contentions, the first petitioner examined herself as P.W.1 and an eye witness to the accident as P.W.2 and got marked 11 documents as Exs. P.1 to P.11. On the other hand, on behalf of the respondent, the driver of the BMTC bus – Nagesh, was examined as R.W.1 and no documents were marked.
7. On hearing both sides and on appreciation of the oral and documentary evidence on record, the Tribunal has come to the conclusion that the accident has occurred on account of the rash and negligent driving of the driver of the offending vehicle BMTC bus and awarded a total compensation of Rs.2,00,000/- with interest at 6% per annum from the date of petition till its realization.
8. Being aggrieved by the judgment and award passed by the Tribunal, the appellants are before this Court.
9. The main grounds urged in this appeal are, that the Tribunal has not taken into consideration the evidence placed on record and has awarded a meager compensation. The Tribunal has not awarded any amount towards ‘loss of consortium’. The finding given by the Tribunal is not proper and justified.
10. Heard the learned counsel for the appellants and the learned counsel for the respondent. Perused the judgment and award passed by the Tribunal.
11. The respondent has admitted the liability.
Hence, the only point in controversy is regarding the quantum of compensation payable to the appellants/claimants.
12. During the course of arguments, the learned counsel for the appellants vehemently contended that the Tribunal has awarded the compensation mechanically, without considering the evidence in respect of income of the deceased, future prospects, amount payable towards loss of consortium and medical and other incidental expenses. Thus, there are valid grounds for enhancement of the compensation.
13. Per contra, the learned counsel for the respondent submitted that the deceased was aged about 58 years and he would have retired within another two years. Under these circumstances, while calculating compensation towards `loss of dependency’, split multiplier formula ought to have been adopted and in Ex.P.9 – Salary certificate, Rs.15,000/- is shown as D.P. The amount payable as D.P. is not regular salary payable to an employee. Thus, the same cannot be taken into consideration for computing compensation towards ‘loss of dependency’. Since the employer of the deceased – KEB has paid family pension and other terminal benefits to the appellants, the Tribunal was justified in awarding a total compensation of Rs.2,00,000/-.
14. Having heard the contentions urged by the counsel for both sides, the only point that arises for consideration is as follows:
“Whether the claimants/appellants are entitled for additional compensation?
15. In the case on hand, relying on the oral and documentary evidence on record, the Tribunal has come to the conclusion that the accident was on account of rash and negligent driving of the driver of the BMTC bus. This fact has not been disputed. In so far as loss of dependency is concerned, the Tribunal has not at all considered the monthly income of the deceased as on the date of accident. The Tribunal has observed that P.W.1 has only stated that the deceased was earning a salary of Rs.46,000/- per month and contributing the entire amount for the maintenance of the family, and her daughter is married, petitioner No.3 is doing tailoring work and the KEB has given 11.5 lakhs as compensation towards the death of the deceased but she has not specifically stated that they are mainly dependent on the income of the deceased. The appreciation of evidence by the Tribunal in assessing compensation towards ‘loss of dependency’ is not proper and justified. As could be seen from the records, the deceased was aged 58 years and he was working as a ‘Lineman’ in KEB. His income as shown in Ex.P.9 – salary certificate, is Rs.45,869/- per month. Out of the said amount, if income tax and professional tax are deducted, his income would be Rs.41,169/-, which is rounded of to Rs.41,170/- per month. In view of the guidelines issued by the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi and another, reported in AIR 2017 S 5157, 15% has to be added to the income of the deceased, which comes to Rs.47,345/-. Out of the said amount, 1/3rd will have to be deducted towards the personal expenses of the deceased and 2/3rd will have to be taken as his contribution to the family. Thus, the income that could have been contributed to the family is Rs.31,563/-. The deceased was aged 58 years and he would have retired at the age of 60 years. Hence, multiplier would be ‘9’. If the calculation is made by taking into consideration the salary which was drawn during his employment and his age, the ‘loss of dependency’ as per his income before retirement would be: Rs.31,563/- x 12 x 2 = Rs.7,57,519/-. As far as his income after retirement is concerned, 50% of his income has to be taken into consideration. In view of the same, the calculation would be: Rs.31,563/- x 12 x 7 divided by 2 = Rs.13,25,546/-. Thus, the total compensation payable under the head ‘loss of dependency’ is Rs.20,83,165/-.
16. It is stated that the deceased had taken medical treatment for a period of one week in the hospital and spent a sum of Rs.14,437/- which needs to be awarded. Considering the period of treatment and other incidental expenses which would have been incurred by the family of the deceased, a sum of Rs.20,000/- is awarded towards ‘medical and incidental expenses’.
17. In view of the ratio laid down in Magma General Insurance Co. Ltd. vs. Nanu Ram reported in 2018 ACJ 2782, the wife of the deceased, namely petitioner No.1 is entitled to a sum of Rs.40,000/- towards ‘loss of spousal consortium’, petitioner Nos. 2 and 3 who are the sons of the deceased are entitled to Rs.30,000/- each towards ‘loss of parental consortium’. In addition, a sum of Rs.15,000/- is awarded towards ‘loss of estate’ and Rs.15,000/- is awarded towards ‘funeral and obsequies ceremonies’.
18. In the result, the reassessed compensation is as under:
Sl.No. Particulars Amount (in Rupees) 1. Loss of dependency 20,83,165.00 2. Medical and Incidental Expenses 20,000.00
is awarded with interest at 6% per annum from the date of claim petition till the date of its realization.
20. It is submitted that a sum of Rs.2,00,000/- along with interest is already deposited for satisfaction of the award passed by the Tribunal. The said amount shall be deducted out of the total compensation payable to the claimants.
21. We are conscious of the fact that the appellants/claimants have claimed compensation of Rs.20,00,000/- only. It is pertinent to note that the Motor Vehicles Act is a beneficial legislation. Thus, we have reassessed the compensation by applying guidelines of Hon’ble Apex Court and awarded just compensation instead of restricting the claim.
22. Accordingly, the appeal is allowed. The judgment and award dated 07.08.2014 passed in MVC No.6586/2012 on the file of the XX Additional Small Causes Judge, Member, MACT, Bangalore (SCCH 22) stands modified.
23. The claimants/appellants are entitled for enhanced compensation of Rs.20,33,165/- in addition to the compensation awarded by the Tribunal with interest at the rate of 6% per annum, from the date of claim petition till the date of realization, excluding the interest for the delayed period of 530 days in preferring the appeal.
24. The appellant No.1 is the wife of the deceased and the appellants 2 and 3 being major sons would be employed. As such they are not totally dependants. Considering this aspect, we apportion Rs.1,00,000/- each, with proportionate interest to appellants 2 and 3. The balance amount shall be apportioned in favour of the appellant No.1.
25. Out of the amount apportioned to the wife – appellant No.1, 75% with proportionate interest shall be deposited in any Post Office or Nationalised Bank/ Scheduled Bank in her name, initially for a period of 10 years and the interest accrued thereon shall be paid to the appellant No.1 periodically. The balance 25% amount shall be released to appellant No.1 on proper identification and acknowledgement. The amount apportioned to appellants 2 and 3 shall be released to them on their proper identification.
The respondent is directed to pay the compensation along with up-to-date interest within four weeks from the date of receipt of certified copy of judgment.
Sd/- JUDGE Sd/- JUDGE MGN