IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.8095 OF 2015 (MV-D) BETWEEN:
1. SMT. SAVITHA N SWAMY, W/O LATE K.A.NARAYANASWAMY, AGED ABOUT 40 YEARS.
2. VARSHA N SWAMY, D/O LATE K.A.NARAYANASWAMY, AGED ABOUT 17 YEARS.
3. RITHVIC, S/O LATE K.A.NARAYANASWAMY, AGED ABOUT 13 YEARS.
2ND AND 3RD MINOR APPELLANTS ARE REPRESENTED BY NATURAL GUARDIAN/ MOTHER, 1ST APPELLANT HEREIN.
ALL ARE RESIDING AT NO.408/10, 4TH MAIN ROAD, BSK 1ST STAGE, 2ND BLOCK, BENGALURU-560 050.
... APPELLANTS (BY N. GOPAL KRISHNA, ADV.,) AND:
THE MANAGING DIRECTOR, K.S.R.T.C., KENGAL HANUMANTHAIAH ROAD, SHANTHI NAGAR, BENGALURU – 560 027.
(BY SUMANGALA A SWAMY, ADV., ) .... RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 24-04-2015 PASSED IN M.V.C. NO.136/2012 ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC, AT KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the claimants by assailing the judgment and award dated 24.04.2015 passed in MVC No.136/2012 by Senior Civil Judge and JMFC, Kunigal (hereinafter referred to as ‘Tribunal’, for the sake of brevity) 3. We have heard the arguments of Sri N. Gopal Krishna, learned counsel for the appellants as well as Smt. Sumangala. A. Swamy, learned counsel for the respondent.
4. For the sake of convenience, the parties herein shall be referred to in terms of their status before the Tribunal.
5. The claimants have filed petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) for claiming compensation of Rs.60,00,000/-, inter alia, contending that on 08.10.2011 between 10.00 and 10.30 p.m., the husband of claimant No.1 namely K.A.Narayanaswamy was proceeding on his Maruti Omni car bearing registration No.KA-05/MF 3164 from Kunigal towards Bengaluru. When he reached near Kallanayakanahalli cross/circle at Anchepalya on NH-48, at that time, a KSRTC bus bearing registration No.KA-40/F-480 came from Bengaluru side driven by its driver in a rash and negligent manner and dashed to the Omni car and caused the accident, due to which K.A.Narayanaswamy and others sustained injuries and they were shifted to the Government hospital and on the way to the hospital, K.A.Narayanaswamy succumbed to the injures. The claimants contended that due to the untimely death of the earning member, they lost their dependency. The deceased was a Director of Coorg Estate Private Limited and was earning Rs.1,92,000/- per annum as honorarium. He was also taking private tuitions and earning Rs.15,000/- per month. It is further contended that they have spent a lot of money towards the funeral and other expenditure. Hence, they claimed the compensation.
6. In pursuant to the notice issued by the Tribunal, the respondent-KSRTC appeared through their counsel and filed statement of objections contending that the averments made in the claim petition by the claimants are denied as false and contended that the driver of the KSRTC bus was driving the bus in a slow manner by following the traffic rules but the driver of the Omni car was responsible for the accident. They have also taken contention that the driver of the Omni car was not holding any valid driving license to drive the car. Respondent also contended that there was contributory negligence on the part of drivers of both the vehicles and also contended that the KSRTC is not liable to pay any compensation. Hence, it prayed for dismissing the claim petition.
7. Based upon the rival contentions, the Tribunal framed following issues:
“1. Whether the petitioners prove that on 08-10-2011 at about 10.00 P.M the deceased Narayanaswamy K.A. has suffered accident near Kallanayakanahalli cross/circle, at Anchepalya, on N.H.48 road, as a result of actionable negligence on the part of the driver of KSRTC Bus bearing Reg. No.KA-40-F-480 and succumbed to the same?
2. Whether the respondent proves that the accident has taken place due to contributory negligence on the part of the driver of Maruthi Omni Car bearing Reg. No.KA-05-MF-3164?
3. Whether the respondent proves that the petition is bad for non-joinder of necessary parties?
4. Whether the petitioners are entitled for any compensation and if so, at what quantum and from whom?
5. What order or Award?”
8. To substantiate their claim, claimant No.1 examined herself as PW.1 and got marked 18 documents as Exs.P1 to 18 and on behalf of the respondent, the driver of the KSRTC bus, one Shiva Kumar was examined as RW.1 but no documents were marked. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative in favour of the claimants, issue Nos.2 and 3 in the negative as against the respondent-insurer and awarded compensation of Rs.9,70,000 on various heads as under:
Heads of compensation Compensation awarded by the Tribunal Loss of dependency Rs.9,00,000/- Funeral expenses Rs.10,000/-
Loss of expectancy Rs.15,000/-
Loss of consortium to claimant No.1 Rs.30,000/-
Loss of love & affection Rs.15,000/-
Total Rs.9,70,000/-
9. Assailing the judgment and award passed by the Tribunal, the claimants have preferred this appeal for enhancing the compensation.
10. Learned counsel for the appellants-claimants contended that the deceased-K.A.Narayanaswamy was the Director of a company and was earning Rs.1,92,000/- per annum as honorarium. He was also conducting private tuition to students and earning Rs.15,000/- per month. He was a M.Com graduate and produced documents as per Ex.P15 before the Tribunal but the Tribunal considered the income of the deceased at Rs.7,500/- per month, which is very meager. The Tribunal has also not considered the loss of future prospects while assessing the loss of dependency as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680, (Pranay Sethi). The Tribunal has also not properly awarded any compensation towards loss of consortium to the children as well as to claimant No.1 who is the widow of the deceased-K.A.Narayanaswamy and hence, prayed for enhancing the compensation.
11. Per contra, learned counsel appearing for KSRTC has supported the judgment and award passed by the Tribunal and contended that there is no proof of documents to show the income of the deceased. Therefore, the Tribunal has rightly considered the income of the deceased at Rs.7,500/- per month. However, learned counsel also contended that when there is no income for the deceased, the Tribunal has rightly not considered any future prospects and therefore prayed for dismissing the appeal.
12. Upon hearing the arguments of learned counsel for both the parties and on perusal of the evidence on record, the points that arise for our consideration are:
i) Whether the judgment and award passed by the Tribunal awarding Rs.9,70,000/- call for interference by this Court?
ii) Whether the claimants are entitled for the enhancement of compensation?
iii) What order?
13. The claimants have established that K.A.Narayanaswamy died in the accident that occurred on 08.10.2011 near Kallanayakanahalli cross/circle at Anchepalya on NH-48 road due to the rash and negligent driving by the driver of the KSRTC bus bearing registration No.KA-40/F-480. Though the respondent-KSRTC has taken the contention about the contributory negligence on the part of the drivers of both the vehicles, the finding of the Tribunal holding that the rash and negligent driving by the driver of the KSRTC bus has not been challenged by filing any appeal and it has attained finality. Therefore, the finding of the Tribunal on issue No.1 does not call for any interference from this Court.
14. The only controversy is in respect of the quantum of compensation awarded by the Tribunal. The claimants stated that the deceased was the Director of Coorg Estate Private Limited and was earning Rs.1,92,000/- per annum as honorarium and he was also conducting tuition classes and earning Rs.15,000/- per month. In support of their case, they have got marked Ex.P14–copy of the PAN Card, Ex.P15-salary certificate, Ex.P16-degree certificate. These documents were not seriously disputed by the respondent. However, the claimants have not produced any income tax returns or bank pass book to show what was the actual income of the deceased. In the absence of any actual proof of income, by considering his educational qualification viz., Post-Graduation in Commerce Degree, we propose to consider the income of the deceased at Rs.10,000/- per month. The Tribunal is not correct in considering the income of the deceased at Rs.7,500/- per month, which is meager. As per the judgment of the Hon’ble Apex Court in the case of Pranay Sethi (supra), 25% of the income shall be considered towards future prospects for the age group of 40 to 50 years. If Rs.10,000/- is considered as income and 25% of Rs.10,000/- i.e., 2,500 is added, it comes to Rs.12,500/- per month. There are three dependents in this case. Hence, 1/3rd of the said income (12,500 x 1/3 = Rs.4,167/-) has to be deducted. It comes to Rs.8,333/- per month. Annualizing the same and by applying appropriate multiplier it comes to Rs.13,99,944/- (8,333 x 12 x 14). The same is rounded off to Rs.14,00,000/-. Therefore, we award Rs.14,00,000/- towards loss of dependency.
15. As per the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others reported in 2018 ACJ 2782 (SC), (Magma General Insurance), claimant No.1, who is the widow of K.A. Narayanaswamy is entitled for Rs.40,000/- towards loss of spousal consortium, claimant Nos.2 and 3 being the children of the deceased are entitled for Rs.30,000/- each towards parental consortium. In all, the claimants are entitled for Rs.1,00,000/- towards loss of consortium.
16. The claimants are also entitled for Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation charges. Therefore, award of the Tribunal towards loss of expectancy at Rs.15,000/- and towards loss of love and affection at Rs.15,000/- are set aside.
17. The claimants are entitled for reassessed compensation of Rs.15,30,000/- as under:
Heads of compensation Compensation awarded by this Court Loss of Dependency Rs.14,00,000/-
Loss of spousal consortium to claimant No.1 Loss of parental consortium to claimant Nos.2 and 3 at Rs.30,000/- each Rs.40,000/- Rs.60,000/-
Towards loss of estate Rs.15,000/-
Towards funeral and Transportation charges Rs.15,000/-
Total Rs.15,30,000/-
18. The aforesaid compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
19. The respondent-Corporation shall deposit the enhanced compensation with proportionate up-to-date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
20. The compensation shall be apportioned in the same manner as has been done by the Tribunal. The directions issued by the Tribunal regarding deposit and release of enhanced compensation amount with regard to appellant Nos.1 and 3 shall be complied with.
21. As regards appellant No.2, since she has become a major, 50% of the compensation apportioned to her shall be deposited in any Post Office or Nationalised Bank deposit initially for a period of ten years. She is entitled to draw periodical interest on the said deposit. The balance compensation shall be released to appellant No.2 after due identification.
The appeal is allowed in-part in the aforesaid terms. Parties to bear respective costs.
Sd/- JUDGE GBB Sd/- JUDGE