IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 3117 OF 2018 (MV) BETWEEN SMT. VINUTHA. R D/O RAVIGONI @ RAVIJAN D/O D. PREMALATHA AGED ABOUT 32 YEARS R/AT NO.158, 4TH CROSS 2ND FLOOR, PRIYADARSHANI BUS-STAND MUDALAPALYA NAGARABAVI MAIN ROAD BANGALORE-72 PRESENTLY RESIDING AT DOOR NO. 690/1 5TH CROSS, K.R. PURAM HASSAN PIN-573201.
... APPELLANT (BY SRI. G.V. NARASIMHAMURTHY - ADVOCATE) AND 1. ASHOKA S/O NINGEGOWDA AGED ABOUT 32 YEARS DODDABAGANAHALLI VILLAGE HASSAN TALUK AND DIST PIN-573203.
2. THE DIVISIONAL CONTROLLER K.S.R.T.C. CHIKKAMAGALUR DEPOT CHIKKAMAGALUR. PIN-563443.
REPRESENTED BY THE DIVISIONAL CONTROLLER K.S.R.T.C.
HASSAN DEPOT HASSAN-PIN-573201.
... RESPONDENTS (BY SRI. K. NAGARAJA – ADVOCATE FOR R-2; NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 08.02.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.04.2015 PASSED IN MVC NO. 533/2014 ON THE FILE OF THE MEMBER, ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM 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 same is taken up for final disposal.
2. This appeal is preferred by the appellant against the judgment and award dated 30.04.2015 passed by the MACT in MVC No.533/2014 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that deceased is the daughter of one Premalatha. On 28.01.2014 at about 2.00 p.m. the said Premalatha along with her brother were proceeding on Suzuki Bike bearing registration No.MH.12-LA-3299 as pillion rider, on the left side of the road near Basavanna Circle, Santhepete, Hassan. At that time, the driver of KSRTC Bus bearing Reg.No.KA-18-F-508 drove the same in a rash and negligent manner and dashed against the bike. As a result of the said impact, deceased Premalatha fell on the road and the back wheel of the bus ran over her abdomen due to which she died on the spot. As the accident occurred due to the rash and negligent driving of the driver of KSRTC Bus and due to the untimely death of Premalatha, and that the petitioner having lost her mother who was the only earning member of the family and having put to mental agony and loss, she filed the claim petition seeking compensation.
4. On issuance of notice, respondents appeared through their respective counsels and respondent – KSRTC filed written statement denying the petition averments and sought for dismissal of the claim petition. Based upon the pleadings, the Tribunal framed the issues. In order to substantiate her claim, petitioner examined herself as PW.1 and one witness as PW.2 and got marked Exs.P1 to Ex.P9. Respondent – KSRTC examined the driver as RW.1 and got marked Exs.R1 and R2. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding compensation of Rs.4,46,000/- with interest @ 6% p.a. from the date petition till deposit. Being not satisfied with the compensation awarded, the claimant/appellant has filed the present appeal seeking enhancement of compensation by urging various grounds.
5. Learned counsel for the appellant contends that the judgment and award passed by the Tribunal is opposed to facts, probabilities and circumstances of the case and the same requires to be modified. He contends that the appellant is the daughter of deceased and she is unmarried. Her mother was aged 50 years and was doing cloth business and getting income of Rs.20,000/- per month. But The income taken by the Tribunal at Rs.4,000/- is on lower side and the same needs to be enhanced. Further, the compensation awarded by the Tribunal under conventional heads is also on lower side and the same needs intervention of this Court. Further, it is contended that the rate of interest awarded by the Tribunal also needs to be increased. On all these grounds, learned counsel for the appellant seeks intervention of this Court and prays for allowing the appeal by modifying the judgment and award passed by the MACT.
6. Per contra, learned counsel for the respondent – KSRTC contends that the petition itself is not maintainable either in law or on facts. He has denied the accident, cause of accident, rash and negligent driving of the KSRTC Bus by its driver. He denies the time and place of the accident. He contends that the accident took place only due to negligence of the rider of the bike in which deceased was traveling and not due to the negligence of the driver of the bus. Further he submits that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
7. In this context of contentions taken by learned counsel for the appellant as well as respondent – KSRTC, it is relevant to state here that there is no dispute with regard to death of deceased Premalatha who died in a road traffic accident on 28.01.2014 when she along with her brother were proceeding on Suzuki Bike as pillion rider on the left side of the road, the offending KSRTC Bus dashed the said bike and as a result of that, deceased Premalatha fell on the road and the back wheel of the bus ran over her abdomen due to which she died on the spot. In order to prove her case, the petitioner has produced documentary evidence such as FIR, Complaint, Spot and sketch mahazar, P.M.Report, IMV report, Inquest report and death certificate of deceased Premalatha as per Exs.P1 to 7 and 9. PW.2 is an eye witness to the incident. The jurisdictional police have registered FIR and filed charge sheet against the driver of the Bus. The Tribunal from the evidence of PW.1 and 2 coupled with documentary evidence produced by the petitioner held, that petitioner has proved the happening of the accident and death of deceased Premalatha in the said accident.
8. PW.1 has stated in her evidence that her mother was doing cloth business and was earning Rs.20,000/- per month. But there being no documentary evidence in this regard, the Tribunal took the income of the deceased at Rs.4000/- p.m. and after deducting 1/3rd towards personal expenses and taking the age of the deceased at 50 years, by applying multiplier of 13, awarded compensation of Rs.4,16,000/- towards loss of dependency. But, however, as per the guidelines and the illustration mentioned in the Lok Adalath chart, the notional income of the deceased is required to be enhanced to Rs.7,000/- per month. Accordingly, the compensation under the head loss of dependency works out to Rs.7,28,000/- (Rs.7,000 x 2/3 x 12 x 13).
9. Further, the Tribunal has awarded Rs.20,000/- towards loss of love and affection and Rs.10,000/- towards transportation of dead body and funeral expenses. But as per the law laid down by the Hon’ble Apex Court in National Insurance Co.Ltd., vs. Pranay Sethi and other reported in AIR 2017 SC 5157, the MACT ought to have awarded Rs.70,000/- as compensation under the conventional heads. Accordingly, the petitioner is entitled for another sum of Rs.40,000/- towards the conventional heads.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads By MACT By this court Loss of dependency 4,16,000 7,28,000 Loss of love and affection Transportation of dead body & funeral expenses 20,000 10,000 70,000 Total 4,46,000 7,98,000 Thus, in all, the claimant is entitled to enhanced compensation of Rs.3,52,000/-.
11. Learned counsel for the respondent –KSRTC submits that as per Ex.R1 – Authorisation letter and Ex.R2-interim compensation payment receipt, the respondent KSRTC has already paid interim compensation of Rs.15,000/- and the said amount has to be deducted from the enhanced compensation. Hence, after deducting the said amount, the claimant is entitled for enhanced compensation of Rs.3,37,000/-.
For the aforesaid reasons and the findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.3,37,000/- with interest @ 6% p.a. from the date of petition till realisation. The impugned judgment and award dated 30.04.2015 in M.V.C.No.127/2014 is modified accordingly.
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 disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB