Allowed

The Managing Director v. Smt Kalpana

Karnataka HC15 Jun 2022MFA/10156/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the Motor Vehicles Act appeal by the claimants against the Claims Tribunal's award. The Court reduced respondent's negligence liability to 80%, computed a total compensation based on established principles, scaled down interest to 6 per cent pursuant to recent precedents, and ordered deposit within six weeks.

What did the court decide?

Compensation enhanced to Rs.16,84,160; interest reduced to 6% per annum. Deposit directed within six weeks.

The Managing Director Vs Smt Kalpana — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.3329 OF 2019(MV) C/W MFA No.10156 OF 2018(MV)

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IN MFA 3329/2019

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BETWEEN:

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1 . SMT. KALPANA W/O LATE BASAVARAJU AGED ABOUT 27 YEARS

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2 . SHANKARAMMA G B D/O LATE BASAVARAJU AGED ABOUT 8 YEARS

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3 . PRUTHVI G B D/O LATE BASAVARAJU AGED ABOUT 03 YEARS.

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4 . PARVATHAMMA W/O LATE SHIVAIAH, AGED ABOUT 57 YEARS,

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APPELLANTS No. 2 & 3 ARE MINORS REPRESENTED THEIR NATURAL GUARDIAN MOTHER KALPANA ALL ARE R/O GADAVANAHALLI VILLAGE TIPTUR TALUK NOW R/AT 3^RD CROSS 1^ST MAIN, HANUMANTHAPURA

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KASABA HOBLI, TUMKUR TOWN TALUK AND DISTRICT-572101.

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...APPELLANTS

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(BY SRI.M.B. RYAKHA, ADV.)

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AND:

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THE DIVISIONAL MANAGER K.S.R.T.C. TUMKUR DIVISION

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…RESPONDENT

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(BY SRI.N.KUMAR, ADV.)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27/06/2018, PASSED IN MVC NO.187/2017, ON THE FILE OF THE VI ADDITIONAL DISTRICT & SESSIONS JUDGE AND MEMBER, AMACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 10156/2018

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BETWEEN:

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THE MANAGING DIRECTOR KAERX, BENGALURU CENTRAL OFFICE SARIGE BHAVAN, K.H.ROAD SHANTHINAGAR BENGALURU-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER.

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...APPELLANT

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(BY SRI.N.KUMAR, ADV.)

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AND:

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1 . SMT. KALPANA W/O LATE BASAVARAJU AGED ABOUT 26 YEARS

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2 . SHANKARAMMA G B D/O LATE BASAVARAJU AGED ABOUT 7 YEARS

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3 . PRUTHVI G B D/O LATE BASAVARAJU AGED ABOUT 02 YEARS.

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4 . PARVATHAMMA W/O LATE SHIVAIAH AGED ABOUT 56 YEARS

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RESPONDENT Nos. 2 & 3 ARE MINORS REPRESENTED THEIR NATURAL GUARDIAN MOTHER KALPANA ALL ARE R/O GADAVANAHALLI VILLAGE TIPTUR TALUK NOW R/AT 3^RD CROSS 1^ST MAIN, HANUMANTHAPURA KASABA HOBLI, TUMKUR TOWN.

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…RESPONDENTS

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(BY SRI.M.B.RYAKHA, ADV.)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27/06/2018, PASSED IN MVC NO.187/2017, ON THE FILE OF THE VI ADDITIONAL DISTRICT & SESSIONS JUDGE AND MEMBER, AMACT, TUMAKURU, AWARDING A COMPENSATION OF RS.11,68,000/- WITH INTEREST @ 7.5% FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE MFAs COMING ON ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.3329/2019 has been filed by the claimants and MFA No.10156/2018 has been filed by the Corporation under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) being aggrieved by the judgment dated 27.06.2018 passed by the VI Additional District & Sessions Judge and Member, AMACT, Tumakuru in MVC No.187/2017.

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Facts giving rise to the filing of the appeals briefly stated are that on 04.11.2016 at about 01.40 P.M. when the deceased Basavaraju was riding his bike bearing Registration No.KA-44-L-2052 near Toremavinahalli Gate, Turuvekere-K.B.Cross Road on the left side of the road, the driver of the KSRTC Bus bearing Registration No.KA-06-F-447 drove the same in a rash and negligent manner from K.B.Cross side

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and dashed against the motor bike of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section

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166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself and

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not due to the driver of the offending vehicle. The age, occupation and income of the deceased are denied. It was further pleaded that the quantum of

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compensation claimed by the claimants is exorbitant.

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Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of respondent, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 and Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.11,68,000/- along with interest at the rate of 7.5% p.a. and directed the Corporation to

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deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed by both claimants as well as Corporation challenging the very same judgment and award.

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Sri N. Kumar, the learned counsel for the Corporation has raised the following counter-

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contentions:

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Firstly, the accident occurred due to rash and negligent riding of the deceased himself. He was riding the motorbike extreme right side of the road. When he tried overtake the lorry which was proceeding in front of the motorbike, he came extreme right side and dashed against the KSRTC Bus. The Tribunal has failed to consider this aspect of the matter. He further contended that the Corporation has examined the driver of the Bus as RW-1. He has categorically stated that the deceased tried to overtake the lorry has come extreme right side and

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dashed against the Bus. The Tribunal only on the basis of the Police, who has filed the charge sheet against the driver of the Bus, has held that the driver of the Bus was negligent in causing the accident.

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Secondly, in respect of quantum, he has contended that even though the claimants claim that the deceased was earning Rs.20,000/- per month by doing agriculture and coconut business, the same is not established by the claimants by producing documents. Therefore, the notional income of the deceased assessed by the Tribunal Rs.7,500/- per month is on higher side.

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Thirdly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards ‘future prospects’.

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Fourthly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on higher side.

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Lastly, in view of judgment of the Division Bench

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of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the claimants are entitled for 6% interest but the Tribunal has granted 7.5% interest which is on the higher side. Hence, he prays for allowing the appeal filed by the Corporation.

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Sri M. B. Ryakha, learned counsel for the

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claimants has raised the following contentions:

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Firstly, the accident occurred due to rash and negligent driving of driver of the Bus. He has come extreme right side and dashed against the deceased. Even the Police have registered a FIR and filed the charge sheet against the driver of the Bus, but the driver has not challenged the same. Considering the evidence of

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PW-1 and PW-2, FIR, Complaint, Charge sheet, the

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Tribunal has rightly held that the driver of the Bus alone was negligent in causing the accident.

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Secondly, in respect of quantum, he has contended that the claimants claim that the deceased was aged about 32 years at the time of the accident and he was earning Rs.20,000/- per month by doing agriculture and coconut business. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.7,500/-.

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Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017

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SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards ‘future prospects’ should be the warrant where the deceased was below the age of 40 years. The same may be considered.

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Fourthly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL

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INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ

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2782], each of the claimants are entitled for compensation of Rs.40,000/- under the head of ‘loss of love and affection and consortium’.

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Lastly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, he prays for enhancement of

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compensation.

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Heard the learned counsel for the parties and perused the certified copy of the original records produced by the learned counsel for the parties before this Court.

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Re:Liability

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The case of the claimant is that on 04.11.2016 at about 01.40 P.M. when the deceased Basavaraju was riding his bike bearing Registration No.KA-44-L-2052 near Toremavinahalli Gate, Turuvekere-K.B.Cross Road on the left side of the

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road, the driver of the KSRTC Bus bearing Registration No.KA-06-F-447 drove the same in a rash and negligent manner from K.B.Cross side and dashed against the motor bike of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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To prove the same, claimant No.1 has examined herself as PW-1. In her evidence, she has reiterated the statement made in the claim petition. PW-2, who is the eyewitness has deposed that the accident was occurred due to rash and negligent driving of driver of the Bus. In his cross-examination, he has admitted that the lorry was passing in front of the motorbike.

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To disprove the case of the claimants, respondent has examined the driver of the KSRTC Bus as RW-1. In his evidence, he has categorically stated that the deceased tried to overtake the lorry has came extreme right side and dashed against the Bus. On the basis of the complaint lodged by PW-2-Raju, the Police

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have registered a FIR and filed the charge sheet against the driver of the Bus.

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I have gone through the records made available by the parties, sketch which produced as per Ex.R2, the road is proceeding from K.B.Circle to Turuvekere and the width of the road is 18 feet, the Bus was proceeding from K.B.Circle towards Turuvekere. The motorbike was proceeding from Turuvekere to K.B.Circle and the accident was occurred 10 feet from the left side of the road. Therefore, it is very clear that the rider of the motorbike was proceeding 8 feet from his left side.

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In the evidence of PW-2, he has categorically stated that there was a lorry which has been moving in front of the motorbike and the driver of the Bus has also categorically stated that the deceased was tried to overtake the lorry and dashed against the Bus.

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By seeing the Sketch, Mahazar and the evidence of the parties, it appears that the deceased was also

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contributed negligence in causing the accident. The driver also driving the Bus with a high speed and in a rash and negligent manner, has not made any effort to control the Bus.

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Under these circumstances, I am of the opinion that both deceased as well as the driver of the Bus are contributed to the accident. Therefore, the deceased was contributed to an extent of 20%, whereas the driver of the Bus was contributed to an extent of 80%.

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Re:Quantum:

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The claimants claim that deceased was earning Rs.20,000/- per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2016, the notional income of the deceased has to be taken at Rs.9,500/-

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p.m.

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To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly income comes to Rs.13,300/-. The Tribunal has rightly deducted 1/4^th of the income of the deceased towards personal expenses and thus the monthly income of the deceased comes to Rs.9,975/-. The deceased was aged about 34 years at the time of the accident and multiplier applicable to his age group is ‘16’. Thus, the claimants are entitled to compensation of Rs.19,15,200/- (Rs.9,9751216) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’

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(supra), claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium', claimant Nos.2 and 3, children of the deceased are entitled for compensation of Rs.40,000/- each under the head of ‘loss of parental consortium’ and claimant No.4, mother of the deceased is entitled for compensation of Rs.40,000/under the head of ‘loss of filial consortium’ .

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Thus, the claimants are entitled to the

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following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	19,15,200
Funeral expenses	15,000
Loss of estate	15,000
Loss of spousal consortium	40,000
Loss of Parental consortium	80,000
Loss of Filial consortium	40,000
Total	21,05,200
Total (80%)	16,84,160

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In the result, the appeal are disposed of. The judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total

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compensation of Rs.16,84,160/- (80% of the award amount) as against Rs.11,68,000/- awarded by the Tribunal.

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In view of judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra), the interest awarded by the Tribunal 7.5% is scale down to 6%.

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The Corporation is directed to deposit 80% award amount i.e. Rs.16,84,160/- along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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This Court while condoning the delay, has denied the interest for a period of 182 days. Hence, the claimants are not entitled for the interest for the delayed period in filing the appeal.

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The amount in deposit shall be transmitted to

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the Tribunal.

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Sd/JUDGE

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HA/-

The Managing Director v. Smt Kalpana

Case brief

What is this about?

What did the court decide?

The Managing Director v. Smt Kalpana

Case brief

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What did the court decide?

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