Partly allowed

Smt Manjula v. Bandenawaj Gabasavalagi

Karnataka HC12 Oct 2022MFA/3422/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka entertained two first appeals: one by the claimants seeking enhancement of compensation and one by KSRTC seeking its reduction. The Court modified the Tribunal's award, enhancing the claimants' compensation to Rs. 15,50,087/- by correcting calculations on dependency, medical bills, and allied heads, while allowing the Corporation to reduce excessive awards on some heads

What did the court decide?

Total compensation enhanced to Rs. 15,50,087/- with an additional enhanced amount of Rs. 50,825/- and interest @ 6% p.a.

Smt Manjula Vs Bandenawaj Gabasavalagi — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL NO.3422/2021 (MV-D)

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C/W MISCELLANEOUS FIRST APPEAL NO.4590/2021

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IN MFA NO.3422/2021 BETWEEN:

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SMT MANJULA W/O LATE H M NAGARAJU AGED ABOUT 48 YEARS

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2. RAJESHWARI N

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D/O LATE H M NAGARAJU AGED ABOUT 22 YEARS

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3. BHARGAVI N

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D/O LATE H M NAGARAJU AGED ABOUT 13 YEARS

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APPELLANT NO.3 BEING THE MINOR REPRESENTED BY HER MOTHER AS NATURAL GUARDIAN APPELLANT NO.1 SMT MANJULA APPELLANT NO.1 TO 3 ARE R/AT MOODLUPURA VILLAGE CHAMARAJANGARA TALUK AND DISTRICT - 571 313

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SMT MAHADEVAMMA W/O LATE MAHADEVAPPA AGED ABOUT 78 YEARS R/AT HARAVE VILLAGE CHAMARAJANAGARA TALUK AND DISTRICT - 571 313

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...APPELLANTS

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(BY SRI.MANJUNATH N D, ADVOCATE)

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AND:

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BANDENAWAJ GABASAVALAGI S/O MAHIBOOB SAHEB R/AT MALAGHAN, SINDAGI TALUK BIJAPUR DISTRICT - 586 101

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THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION (KSRTC) CHAMARAJANAGARA DEPOT CHAMARAJANAGARA TALUK AND DISTRICT - 571 313

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…RESPONDENTS

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(BY SMT.B.P.RADHA, ADVOCATE FOR R2; V/O DATED 31.08.2021, NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2021 PASSED IN MVC NO.424/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHAMARAJANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.4590/2021 BETWEEN:

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THE MANAGING DIRECTOR, KSRTC CHAMARAJANAGARA DEPOT

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CHAMARAJANAGARA TALUK AND DISTRICT REPT BY ITS CHIEF LAW OFFICER

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...APPELLANT

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(BY SMT.RADHA B P, ADVOCATE)

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AND:

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SMT MANJULA W/O LATE H M NAGARAJU AGED ABOUT 48 YEARS

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RAJESHWARI N D/O LATE H M NAGARAJU AGED ABOUT 22 YEARS

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BHARGAVI N D/O LATE H M NAGARAJU AGED ABOUT 13 YEARS REP BY HER MOTHER AS NATURAL GUARDIAN ALL ARE R/AT MOODLUPURA VILLAGE CHAMARAJANAGARA TALUK AND DISTRICT

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SMT MAHADEVAMMA W/O LATE MAHADEVAPPA AGED ABOUT 78 YEARS R/AT HARAVE VILLAGE CHAMARAJANAGAR TALUK AND DISTRICT

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BANDENAWAJ GABASAVALAGI S/O MAHIBOOB SAHEB R/AT MALAGHAN, SINDAGI TALUK BIJAPURA DISTRICT

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…RESPONDENTS

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(BY SRI.MANJUNATH.N.D, ADVOCATE FOR R1 TO R4; V/O DATED 12.10.2022, NOTICE TO R5 IS D/W)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.23.02.2021 PASSED IN MVC NO.424/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHAMARAJANAGARA, AWARDING COMPENSATION OF RS.14,99,262/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF CLAIM PETITION TILL ITS REALIZATION.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING, THIS DAY , B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA No.3422/2021 is filed by the unfortunate wife and children of the deceased seeking enhancement of compensation and MFA No.4590/2021 is filed by the KSRTC for reduction (hereinafter referred to as ‘the Corporation’ for short) against the judgment and award dated 23.02.2021 made in MVC No.424/2017 on the file of the Additional Senior Civil Judge and MACT at Chamarajanagara (hereinafter referred to as ‘the Tribunal’ for short), whereby the Tribunal has awarded total compensation of Rs.14,99,262/-with interest @ 6% p.a. from the date of petition till the date of realization.

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The claimants have filed claim petition

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under the provisions of Section 166 of the Motor Vehicles Act, seeking compensation on account of death of H.M. Nagaraju S/o late Mahadevappa, who died in a road traffic accident that occurred on 21.09.2017 at about 6.10 a.m., when the deceased was proceeding by walk from his village towards Chamarajanagar town on the left side of the road in front of Coconut factory and at that time, the driver of KSRTC bus bearing registration No.KA-09-F-3899 driven the same in a rash and negligent manner endangering the human life with high speed from opposite direction and dashed to the deceased. As a result, the deceased sustained grievous injuries to over his forehead, contusion measuring 30 x 15 cm over right side abdomen and multiple abrasion over front of left thigh and other parts of the body. Immediately, he was shifted to District Hospital,

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wherein he was taken first aid treatment and thereafter he was shifted to JSS Hospital, Mysore, wherein he was admitted from 21.09.2017 to 30.09.2017 and died in the hospital on 30.09.2017. It is further case of the claimants that the deceased was working at Srinidhi Finance and earning Rs.15,000/per month and out of his income, he was maintaining the claimants. But due to untimely death of the deceased, the claimants sustained untold hardship, injury and inconvenience and caused great financial problems for their livelihood and they were depending upon the income of the deceased and thereby, sought for compensation of Rs.33,90,000/- with interest @ 12% per annum.

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In response to the notice issued by the Tribunal, respondent No.1 remained absent and was placed ex-parte and respondent No.2-KSRTC appeared and filed written statement contending that on

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21.09.2017, Sri. Bande Nawaz was deputed as driver of KSRTC bus bearing No.KA-09-F-3899 to the route No.5758 and on that day, at about 6.00 a.m. when he was proceeding towards Gundlupet, near Mudlupur Village, near the coconut factory, at that time, one goods auto rickshaw was going in front of the KSRTC bus and the driver of the bus was driving the bus slowly and cautiously and when autorickshaw suddenly applied the brake, in order to avoid the accident to the autorickshaw, the driver of the KSRTC bus taken the bus towards right side. Even though he tried to apply brake after observing that one person was going on the road, front portion of the bus touched to the deceased. There is no rash and negligence on the part of the driver of the KSRTC bus and stated that if the deceased had gone on the footpath, this incident would not have taken place. It is further stated that the jurisdictional police have

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registered a case against the driver of the KSRTC bus and the Corporation had granted interim maintenance of Rs.50,000/- to the legal representatives of the deceased.

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Based on the aforesaid pleadings, the Tribunal framed the following issues:

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“1. Whether the petitioners prove that the deceased H.M Nagaraju S/o Late. Mahadevappa met with an accident on 21.09.2017 at about 6 10 A.M infront of Kobbari factory, Chamarajanagar town, Chamarajanagara Gundlupet main road(SH80), when he was proceeding towards Chamarajanagar Town from his village, by walk towards, on the left side of the road?

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Whether the petitioners prove that the said accident occurred due to rash and negligent act of driver of KSRTC bus bearing registration No.KA-09-F-3899 who dashed against the deceased and as a result of the same, the deceased sustained grievous injuries and he expired in JSS Hospital, Mysore on 30.09.2017? 3. Whether the respondents

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prove that they are not liable to pay the compensation to the petitioners?

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Whether the respondents prove that they are not liable to pay the compensation to the petitioners?

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Whether petitioners are entitled for compensation, if so, at what extent and from whom?”

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Claimants in order to prove their case, examined claimant No.1 as PW.1 and examined one more witness as PW.2 and got marked documents at Ex.P.1 to P.17. On the other hand, respondent No.2 examined the driver of the bus as RW.1 and got marked documents at Ex.R.1 to R.5.

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The Tribunal on consideration of the

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pleadings, the oral and documentary evidence on record held that the claimants have proved that the accident occurred due to the rash and negligent driving of driver of the KSRTC Bus bearing registration

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No.KA-09-F-3899, due to the accident, the deceased succumbed to the injuries in the hospital and respondents have failed to prove that they are not liable to pay the compensation. Accordingly, the Tribunal fastened the liability upon the Corporation awarding compensation of Rs.14,99,262/-with interest at the rate of 6% per annum from the date of the petition till the date of realization. Hence, claimants have filed MFA No.3422/2021 seeking enhancement of compensation and the Corporation has filed MFA No.4590/2021 for reduction of compensation.

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Heard learned counsel for the parties to the

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lis.

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Sri. Manjunath N.D., learned counsel for

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the appellants/claimants contended that though PW.1 stated on oath in her evidence that deceased was used to earn Rs.15,000/- per month. However, the

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Tribunal has erred in taking the income of the deceased at Rs.10,250/- per month instead of Rs.11,000/- as fixed by Karnataka State Legal Services Authority, Bengaluru. He further contended that the Tribunal has awarded compensation of Rs.1,43,070/- as per Ex.P.10-medical bills produced. Therefore, sought to allow the appeal filed by the claimants and dismiss the appeal filed by the KSRTC.

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Per contra, Smt. Radha B.P., learned

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counsel for the Corporation would contend that the Tribunal has erred in calculating the actual expenses spent towards medical bills and wrongly awarded a sum of Rs.1,43,070/- by calculating twice the medical bills of Rs.4,128/- Rs.3,306/- and Rs.3,452/-, which is impermissible. The learned Judge further proceeded to grant a sum of Rs.1,00,000/-, Rs.80,00/-, Rs.40,000/and Rs.40,000/- under the head loss of love and

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affection, parental consortium, filial consortium and loss of consortium, respectively, which is contrary to the dictum of the Hon’ble Apex Court in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur and others [AIR 2020 SC 3076] (Satinder Kaur) and Magma General Insurance Company Ltd. Vs. Nanu Ram & Others [2018 ACJ 2782] (Magma General Insurance Company Ltd. ,). She further contended that claimants produced Ex.P.9-Salary Certificate, which clearly depicts that the deceased was earning Rs.10,000/- per month. However, the Tribunal is not justified in taking the income of the deceased at Rs.10,250/- per month. Thereby, sought to allow the appeal filed by the Corporation and dismiss the appeal filed by the claimants.

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In view of the rival contentions urged by

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the learned counsel for the parties, the points that arise for our consideration in the present appeals are:

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“1. Whether the claimants have made out any case for further enhancement of compensation, in the facts and circumstances of the present case?

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Whether the Corporation has made out a case to interfere with the impugned judgment and award passed by the Tribunal for reduction of compensation?"

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We have given our anxious consideration to

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the arguments advanced by the learned counsel for the parties and perused the material on records carefully.

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It is an undisputed fact that due to the accident that occurred on 21.09.2017, deceased H.M. Nagaraju succumbed to the injuries sustained in a road traffic accident in the hospital while taking

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treatment on 30.09.2017 due to the rash and negligent driving of the driver of the KSRTC Bus bearing registration No.KA-09-F-3899. The same is evident from the material documents at Ex.P.1-FIR, Exs.P.2 and 3-Complaints, Ex.P.4-Spot Mahazar, Ex.P.5-Sketch and Ex.P.6-Chargesheet filed by the jurisdictional police during the course of the employment. Admittedly, the owner of the offending vehicle has not filed any appeal challenging the finding of the Tribunal.

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Though learned counsel for the Corporation

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contended that the Tribunal ought to have taken the income as per Ex.P.9-Salary Certificate, the fact remains that the author of Ex.P.9 was not examined by the claimants. PW.1-wife of the deceased stated on oath that the deceased was earning Rs.15,000/per month. Nothing has been elicited in the crossexamination to disprove that the deceased was

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earning Rs.15,000/- per month. In the absence of any documents to prove the income of the deceased, the Tribunal ought to have taken the notional income as per the guidelines issued by the Karnataka State Legal Services Authority, Bengaluru. The accident that occurred in the year 2017, the notional income to be taken as per the Chart is Rs.11,000/- and as the deceased was aged about 53 years, 10% of the income has to be added as future prospects as per the dictum of the Hon’ble Apex Court in the case of

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National Insurance Company Limited Vs. Pranay Sethi and others [2017 ACJ 2700] (Pranay Sethi) (11,000 + 10% future prospects amounting to Rs.1,100/-). Thus, the income of the deceased that would be arrived at is Rs.12,100/- and deducting 1/4^th of the income towards personal expenses of the deceased as the dependants are four in number, the notional income would be Rs.9,075/-. Considering the

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age of the deceased as 53 years, the multiplier applicable is ‘11’. The claimants are entitled for Rs.11,97,900/- under the head loss of dependency. (Rs.9,075 x 12 x 11 = 11,97,900/-)

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Learned counsel for the Corporation contended that the Tribunal had wrongly awarded compensation of Rs.1,43,070/under the head medical bills calculating the medical bills twice. When we saw the medical bills, it is seen that the Tribunal calculated some of the medical bills twice. As a result, after deducting the same, the claimants are entitled to a sum of Rs.1,32,187/- under the head medical bills.

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The Tribunal has awarded a sum of Rs.1,00,000/-, 80,000/-, 40,000/and 40,000/towards loss of love and affection, parental consortium, filial consortium and loss of consortium respectively, which is contrary to the dictum of the

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Hon’ble Apex Court in the case of Satinder Kaur and Magma General Insurance Company Ltd. Thus, the claimants are entitled for Rs.40,000/- each, totaling to Rs.1,60,000/as there are four dependents. The award of compensation under the heads loss of estate and funeral expenses is just and proper and same stands unaltered.

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It is not in dispute that after the accident the deceased was shifted to District Hospital, Chamarajanagar for first aid treatment and thereafter he was shifted to JSS Hospital, Mysore, wherein he was treated as inpatient from 21.09.2017 to 30.09.2017 and succumbed to the injuries on 30.09.2017. The Tribunal has not awarded any compensation towards attendant charges. Thereby, this Court is of the considered opinion that claimants are entitled to compensation of Rs.30,000/- under the head attendant charges.

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Learned counsel for the Corporation submits that Corporation has paid a sum of Rs.50,000/- to the claimants as interim compensation as per Exs.R3 and R.4. Thereby, Rs.50,000/- needs to be deducted. Perusal of the judgment and award dated 23.02.2021 depicts that Rs.50,000/- has been deducted from Rs.15,49,262/- and compensation arrived was Rs.14,99,262/-.

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On reassessing the entire oral and

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documentary evidence on record, this Court is of the considered opinion that the appellants/claimants are entitled for just compensation under different heads

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as under:

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Sl. No.	Head of Compensation	Amount in Rs.
1.	Loss of dependency	11,97,900.00
2.	Loss of love and affection (4,0000 x 3)	1,20,000.00
3.	Loss of consortium	40,000.00
4.	Medical expenses	1,32,187.00
5.	Funeral expenses (as awarded by the Tribunal)	15,000.00

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6.	Loss of estate		15,000.00
	(as awarded by Tribunal	the
7.	Attendant charges		30,000.00
	Total		15,50,087.00

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As the Tribunal has already awarded a sum

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of Rs.14,99,262/- and deducting the same out of Rs.15,50,087/-, the claimants are entitled to enhanced compensation of Rs.50,825/- with interest @ 6% p.a. from the date of petition till the date of realization. Accordingly, we answer point No.1 framed for consideration partly in the affirmative in favour of the claimants and point No.2 framed for consideration partly in the affirmative holding that the Corporation has made out a case to reduce the compensation awarded under the conventional heads and medical bills though the reassessed compensation is in favour of the claimants.

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In the result, we pass the following:

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ORDER

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i. The appeal filed by the claimants in MFA No.3422/2021 is allowed in part.

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ii. The appeal filed by the Corporation in MFA No.4590/2021 is allowed in part insofar as compensation awarded under the head conventional heads and medical bills.

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iii. The impugned judgment and award dated 23.02.2021 passed by the Tribunal in MVC No.424/2017 is hereby modified.

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iv. The claimants are entitled for total compensation of Rs.15,50,087/- as against Rs.14,99,262 /- awarded by the Tribunal.

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v. The claimants are entitled for enhanced compensation of Rs.50,825/- with interest @ 6% p.a. from the date of petition till the date of realization.

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vi. The Corporation shall deposit the enhanced compensation amount within a period of six weeks from the date of receipt of a copy of this order with proportionate interest.

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vii. The apportionment, deposit and release of compensation amount as per the order of the Tribunal stands unaltered.

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viii. The trial Court record be transmitted to the concerned Court forthwith.

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ix. The amount, if any, deposited by the Corporation shall be transferred to the Tribunal forthwith.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE