IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA M.F.A. NO.7653 OF 2013(MV) C/W M.F.A.NO.448 OF 2014 (MV) IN M.F.A. NO.7653 OF 2013 (MV) BETWEEN:
M/s Oriental Insurance Company Limited No.663, 1st Floor, 1st Main Defence Colony, 100 Feet Road Indiranagar 1st Stage Bengaluru – 560 038 Now represented by its Regional Office No.44/45, LEO Shopping Complex Residency Road, Bengaluru-560 025 Rep. by its Authorized Signatory ... Appellant (By Sri A.M. Venkatesh, Advocate) AND:
1. Somshekar S/o D.L.Shivalingaiah Aged about 31 years R/at Mangalawar Pet 14th Cross Channapatna Town-571 501 2. Gowtham Gowda S/o Somshekar Aged about 11 years Since minor, rep. by his Father – respondent No.1 3. Ramakrishna K M S/o Late Mudda Annegowda Aged about 56 years R/at No.9, 3rd Floor, 2nd Block, D.A.R. Police Quarters Channapatna – 571 501 4. Padma W/o Ramakrishna K M Aged about 50 years R/at No.9, 3rd Floor, 2nd Block, D.A.R. Police Quarters Channapatna – 571 501 5. Managing Director KSRTC, Shanthi Nagar K.H.Road, Bengaluru–560 001 ... Respondents (By Sri T.P.Vivekananda, Advocate for R1 to R4 & Sri F.S.Dabali, Advocate for R5) This MFA is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 04.06.2013 passed in MVC No.227/2012 on the file of the Senior Civil Judge and JMFC & MACT, Channapattana, awarding compensation of Rs.10,00,000/- with interest @ 6% per annum from the date of petition till the date of deposit.
IN M.F.A. NO.448 OF 2014(MV) BETWEEN:
1. Somshekar Aged about 32 years S/o D.L.Shivalingaiah R/at Mangalawar Pet 14th Cross Channapattana -571 501 2. Gowtham Gowda Aged about 12 years S/o Somshekar Represented by father Appellant No.1 3. Ramakrishna K M Aged about 57 years S/o Late Mudda Annegowda R/at No.9, 3rd Floor, 2nd Block D.A.R. Police Quarters Channapattana – 571 501 4. Padma Aged about 51 years W/o Ramakrishna K M R/at No.9, 3rd Floor, 2nd Block, D.A.R. Police Quarters Channapattana – 571 501 ... Appellants (By Sri T P Vivekananda, Advocate) AND:
1. Managing Director KSRTC, Shanthi Nagar K.H.Road, Bengaluru–560 027 2. The Oriental Insurance Company Limited No.663, 1st Floor, Defence Colony, 100 Feet Road Indira Nagar 1st Stage Bengaluru – 560 038 ... Respondents (By Sri F.S.Dabali, Advocate for R1 & Sri A.M.Venkatesh, Advocate for R2) This MFA is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 04.06.2013 passed in MVC No.227/2012 on the file of the Senior Civil Judge and JMFC, MACT, Channapattana, Ramanagara District, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for admission this day, the Court delivered the following:
JUDGMENT MFA No.7653/2013 is filed by the insurer of a KSRTC bus challenging the judgment and award passed by the Tribunal on the ground of negligence as well as quantum. Whereas, MFA No.448/2014 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of the learned counsel appearing for the parties, both the appeals were heard together and disposed of by this common judgment.
3. Perused the judgment and award passed by the Tribunal including the records.
4. As there is no dispute regarding death of one Shilpa R, in a road traffic accident occurred on 03.11.2010 by involvement of a KSRTC Bus, the points that arise for consideration in these appeals are:-
1. Whether the Tribunal was justified in holding that the accident occurred due to rash and negligence driving of a KSRTC Bus bearing Reg.No.KA-41 F-070 by its driver?
and 2. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for any reduction or enhancement?
5. Sri A.M. Venkatesh, learned counsel appearing for the insurer of the KSRTC Bus bearing registration No.KA.41-F-070, herein after referred to as KSRTC bus submits that death of deceased Shilpa R. is not on account of rash and negligent driving of the KSRTC bus by its driver and it was on account of deceased, negligently standing at the KSRTC bus stand, Hassan. The Tribunal, without considering the same has committed an error holding that the accident had occurred due to rash and negligent driving of the KSRTC Bus by its driver. Regarding quantum, learned counsel submits that even though claimants have failed to prove the avocation and income of the deceased, the Tribunal has committed an error in assessing the income of the deceased @ Rs.12,000/- per month and as such, the compensation awarded under the head loss of dependency as well as under conventional heads are on the higher side. Therefore, he prays for allowing the appeal filed by the insurer of the KSRTC bus both on the ground of negligence as well as quantum.
6. Sri T.P.Vivekananda, learned counsel appearing for the claimants submits that, death of deceased Shilpa R, was on account of rash and negligent driving of the KSRTC bus bearing Reg.No.KA- 41-F-070 by its driver. The Tribunal, considering the oral and documentary evidence on record was justified in holding that the accident had occurred due to rash and negligent driving of the KSRTC bus by its driver and said finding of the Tribunal does not call for interference.
7. So far as quantum of compensation is concerned, learned counsel submits that the deceased after passing SSLC examination, had done Diploma course in Electronic and Communication Engineering and by working as an Executive at Innovative Studios Pvt. Ltd., was getting salary of Rs.12,000/- per month.
The Tribunal considering the same, was justified in assessing the income of the deceased at Rs.12,000/-
p.m. However, it has committed an error while applying the multiplier of 17 instead of 18. Learned counsel further submits that, the Tribunal has committed an error in deducting 1/3rd of the income of the deceased towards her personal expenses instead of deducting 1/4th and taking 3/4th of the income of the deceased as contribution towards family.
8. Based on the first information, a case was registered against the driver of the KSRTC bus bearing Reg.No.KA-41/F-070. The police after investigating the matter have filed charge sheet against the driver of the KSRTC Bus.
9. Claimants in support of their contention that death of deceased was on account of rash and negligent driving of the KSRTC bus by its driver, have examined the first claimant-husband of deceased as PW-1 and have produced FIR, charge sheet and PM Report, which were marked as Exs.P.2, P.3 and P.4. The insurer of KSRTC Bus, who contends that the accident occurred due to negligence on the part of the deceased in standing at the KSRTC Bus stand, Hassan, did not choose to examine either the driver of the KSRTC bus or any eye witnesses to the accident 10. The Tribunal considering the police records such as, FIR and Charge Sheet marked as Ex.P.3 and P.2 respectively and other material evidence on record, was justified in holding that death of deceased is on account of rash and negligent driving of the KSRTC bus by its driver. I have carefully gone through the said finding of the Tribunal on negligence and do not see any error warranting interference of this Court. Therefore, the finding of the Tribunal on negligence is confirmed and point No.1 is answered accordingly.
REGARDING QUANTUM:
13. It is a case of death of one Smt. Shilpa R, aged about 24 years. Claim petition is filed by her husband, minor son and parents. Claimants in support of their contention that deceased by working as an Executive at Innovative Studios Pvt. Ltd., was getting salary of Rs.12,000/- per month, have examined first claimant-husband of deceased as PW-1 and have produced Electoral ID Card of deceased, Certificate issued by the Innovative Studios Pvt. Ltd., Pay slip of the deceased for the month of April 2010 issued by the Innovative Studios Pvt. Ltd., certificate showing the completion of Diploma in D E & C E, by the deceased during the year 2006 and SSLC Marks card of deceased showing deceased had passed SSLC examination in the year 2002 with first class, which were marked as per Exs.P.10, P.11, P.12, P.13 and P.17. Perusal of Ex.P.10 an Electoral ID Card and P.17 the SSLC Marks Card of deceased would show that deceased was born on 02.04.1987 and she was 23 years old at the time of the accident and multiplier applicable to her age group is 18 and not 17, as applied by the Tribunal. Ex.P.11 - certificate dated 18.07.2010 issued in a letter head of Innovative Studios Pvt. Ltd., duly signed by some person for Innovative Studios Pvt. Ltd., reads as under:
“This is to certify that Ms. Shilpa R is being working in our organization since two years i.e., from May 2008 and has been up to our job satisfaction.”
Ex.P.12 is Pay Slip of deceased for the month of April 2010 issued in a letter head of Innovative Studios Pvt. Ltd., No.24 & 26, Bidadi Industrial Area, Bengaluru-562 109, wherein it is mentioned with details as to Employee Code:ISPL115, Employee Name: Mrs. Shilpa R, Department: GGM Office, Designation: Executive and certifies the gross salary as Rs.12,000/- and a sum of Rs.1,920/- is shown to have been paid towards conveyance of deceased. Ex.P.13 is Diploma Certificate of deceased, issued by the Government Of Karnataka, Department of Technical Education, Board of Technical Examinations, certifying that deceased had completed three years Diploma Course in Electronics and Communication Engineering during May-2006. Ex.P.17 being SSLC Marks Card would show that deceased had passed her SSLC examination with first class during the March 2002. Ex.P.14 is issued by the Karnataka State Police, 4th Bettalian, KSRP, Koramangala, Bengaluru inviting the deceased for physical test in respect of recruitment to the post of Police Constable (Wireless). Considering the qualification of the deceased that she had passed SSLC with first class and then Diploma in Electronics and Communication Engineering, there is no impediment to rely on Ex.P.12, the pay slip which is a computer generated pay slip, according to which, deceased was getting gross salary of Rs.12,000/- per month, out of which a sum of Rs.1,920/- was shown to have been paid towards conveyance as the deceased was working as an Executive in Innovative Studios Pvt. Ltd., if that is excluded, the income of the deceased could be @ Rs.10,080/- out of which a sum of Rs.150/- towards Professional Tax shall be deducted and after deducting the same the actual salary would work out @ Rs.9,930/-. As deceased was working in a private establishment and being aged 23 years old, 40% of the said income should be added to her income towards future prospects. Therefore, the total income would be @ Rs.9,930/-+3972/-= Rs.13,902.00.
22. At this stage, learned counsel appearing for the insurer of KSRTC bus suggested that, another sum of Rs.902/- may be excluded towards miscellaneous charges and the monthly income of the deceased may be taken at Rs.13,000/-. Learned counsel for the claimants has agreed for taking the income of deceased at Rs.13,000/- as suggested by the learned counsel for the insurer. If so, loss of dependency works out to Rs.13000x12x18x2/3=18,72,000/- and it is awarded.
23. In addition to the said amount, a sum of Rs.40,000/- is awarded to the first claimant/husband of deceased under the head ‘loss of consortium’. A sum of Rs.15,000/- is awarded to the other claimants under the head ‘loss of estate’ and Rs.15,000/- is awarded towards ‘transportation of dead body and funeral expenses and in all, a sum of Rs.70,000/- is awarded towards conventional heads.
24. It is settled principle of law that, to award a compensation in a case as that of the present nature, it does not depend upon the amount of claim made in the claim petition and it depends upon the principles of just and reasonable compensation. Therefore, the Tribunal was not justified in restricting the compensation as determined by it at Rs.16,62,637/- to Rs.10,00,000/-.
25. Thus, the compensation awarded by the Tribunal is reassessed and modified as under:-
26. Accordingly, I pass the following ORDER M.F.A.No.448/2014 filed by the claimants stands allowed in part.
The judgment and award dated 04.06.2013 passed in MVC No.227/2012 by the Senior Civil Judge and MACT, Channapattana, stands modified and the claimants are entitled for a total compensation of Rs.19,42,000/- as against Rs.10,00,000/- awarded by the Tribunal and the claimants are entitled for additional compensation of Rs.9,42,000/- with interest at the rate of 6% per annum from the date of claim petition till the date of realization.
The Insurance Company after deducting the amount if any already paid, shall pay the balance amount together with interest within two months from the date of receipt of the copy of this judgment.
From the balance of compensation payable by the insurer of the KSRTC bus, a sum of Rs.10,00,000/- (Ten Lakhs) with proportionate interest shall be invested as FD in any nationalized / Scheduled bank, in the name of minor claimant No.2 for a period of 10 years, by which time he will attain the age of majority and a sum of Rs.2,00,000/- (Two Lakhs) with proportionate interest shall be invested as FD in any nationalized / Scheduled bank in the name of claimant No.1 for a period of 5 years, with a right of option for them to withdraw periodical interest accrued on said FD or to transfer the said interest amount to their savings bank Accounts.
The remaining amount shall be apportioned equally among claimant Nos.1 and 2 and release the entire share of claimant No.1 through A/c payee cheque and the entire share of minor claimant No.2 shall also be released in favour of claimant No.1, being the father and natural guardian, and the claimant No.1 shall utilize the same for the welfare of minor claimant No.2.
As submitted by the learned counsel for claimants Sri T.P.Vivekananda, the Tribunal while releasing portion of the amount, is directed to handover the FD receipts to the claimant No.1 and the claimant No.1 and 2 after its maturity, may directly approach the Bank for release of the same, without any further orders for the Tribunal.
Accordingly, claim petition against claimant Nos.3 and 4 stands dismissed.
In view of allowing the appeal filed by the claimants and enhancing the compensation amount awarded by the Tribunal, M.F.A.No.7653/2013 filed by the insurance company of KSRTC bus for reduction of compensation stands dismissed.
Amount in deposit if any in this Court, is ordered to be transferred to the Tribunal for disbursement of the same, in terms indicated herein above.
No order as to costs.
Sd/- JUDGE KMV*