Partly allowed

Mr Mahesh v. the Divisional Manager

Karnataka HC4 Aug 2022MFA/4441/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, enhancing compensation payable by the BMTC for the death of the mother. The Court held that major children are entitled to dependency compensation, recalculated the amount considering notional income and multiplier, increased compensation for loss of love and affection, and upheld other heads.

What did the court decide?

The appeal allowed in part; compensation enhanced to Rs. 7,64,156/- with an additional amount of Rs. 4,14,006/- and interest at 6% per annum.

Mr Mahesh Vs the Divisional Manager — 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 4^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.4441/2017

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BETWEEN:

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MR.MAHESH S/O LATE MALLEGOWDA AGED ABOUT 39 YEARS

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SRI KUMARI @ KUMARAMMA W/O MAHADEVA AGED ABOUT 28 YEARS

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ALL THE APPELLANTS ARE RESIDING AT NO.3839, RAMANNAPET NEAR JUMMA MASID CUBBONPET, BANGALORE-560 002

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PRESENT ADDRESS: R/AT NO.122, CHANDAHALLI BANNUR HOBLI, T.NARASIPURA TALUK MYSORE DISTRICT-571 101.

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… APPELLANTS

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(BY SRI.GURUDEVA PRASAD K.T. ADV.,)

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AND:

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THE DIVISIONAL MANAGER BANGALORE METROPOLITAN TRANSPORT CORPORATION LTD., K.H.ROAD, SHANTHINAGAR BANGALORE-560 027

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... RESPONDENT

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(BY SRI D.VIJAY KUMAR, ADV.,)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.02.2017 PASSED IN MVC NO.1948/2016 ON THE FILE OF THE MACT COURT OF SMALL CAUSES, XXI ACMM AND XXIII ADDITIONAL SMALL CAUSES JUDGE, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellants-claimants, challenging the judgment and award dated 21.02.2017, passed in MVC No.1948/2016, on the file of the Motor Accident Claims Tribunal and XXIII Additional Small Causes Judge, Bengaluru (SCCH-25), (hereinafter referred to as ‘the Tribunal’ for brevity) seeking enhancement of compensation.

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The Brief facts of the case are that on 21.09.2015 at about 10.20 p.m., mother of the claimants while crossing K.R.Road near Prof. Shivashanker Circle, V.V.Puram, Bangalore, from west to east direction slowly

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and cautiously at that time, all of a sudden a BMTC bus bearing No.KA-57-F-424 came in a high speed in a rash and negligent manner and dashed against the claimants' mother and as a result of which she sustained grievous injuries and died in hospital on 06.10.2015.

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Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation. The appellants-claimants are said to be the dependants upon the earning of the deceased. The deceased was a self-employed Agarbathi worker and she was earning a sum of Rs.12,000/- per month. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.3,50,150/-, along with interest at 8% per annum from the date of petition till the date of deposit. The Tribunal held the respondent-Corporation therein, jointly and severally liable to pay the compensation.

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Learned counsel for the appellants submitted

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that the compensation awarded by the Tribunal under the

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various heads is not sufficient. Therefore, prays to enhance the compensation on various heads.

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The contention of the learned counsel for the appellants is that the Tribunal has only awarded a sum of Rs.2,00,000/- under the head 'loss of estate' without any basis. The deceased was earning a sum of Rs.12,000/per month and the appellants were the dependants of the deceased and therefore, prays for enhancement under the head 'loss of dependency'. Further, it is submitted that the amount awarded under the head 'food, nourishment and attending charges and so also 'funeral expenses' are meager and prays for enhancement on these heads also.

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On the other hand, the learned counsel appearing for the respondent-Corporation vehemently contended that since the claimants are major son aged about 38 years and the daughter is already married and residing with her husband and they are not dependents to the deceased. Further, he submitted that the deceased was living in her village and not in Bengaluru. Therefore,

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on this count also, the Tribunal was justified in awarding amount under the head 'loss of estate' is just and proper. Further, submitted that the compensation awarded under

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all the heads are just and proper. Therefore, prays for dismissal of the appeal.

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The compensation awarded by the Tribunal

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under various heads are as follows:

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1	Towards Loss of estate	: Rs.	2,00,000/-
2	Towards loss of love and affection	: Rs.	1,00,000/-
3	Towards medical bills	: Rs.	10,150/-
4	Towards funeral expenses	: Rs.	20,000/-
5	Towards food, nourishment and attending charges	: Rs.	20,000/-
	Total	: Rs.	3,50,150/-

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Heard the learned counsels and perused the

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material on record.

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Considering the submission made by the learned counsel for the respondent-corporation that the claimants are major son and the daughter is married and living separately along with her husband and moreover the deceased appears to be more than sixty years old. It

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appears that both the claimants were not depending upon the income of the deceased. However, the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Birender and others reported in ( 2020) 4 SCC (Crl.) 280 has held that even though the claimants are major, they are entitled for compensation under the head 'loss of dependency'. Therefore, in the present case also even though it is stated that both son and the daughter are major, they are entitled for compensation under the head 'loss of dependency'. It is stated that the deceased was doing agarbathi work and no documentary evidence is available regarding her avocation and the income derived therefrom. Therefore, her notional income is taken at Rs.9,000/- per month as the accident occurred in the year 2015 as per the Chart of the Karnataka State Legal Services Authority.

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The learned counsel for the respondentcorporation submitted that the deceased was more than 60 years old. However, in the post mortem report the age of the deceased is mentioned as 58 years. Even this Court

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does not believe Exs.P12 and 13 i.e., Election and Voter ID card because only birth year is mentioned as 1962. Therefore, according to the post mortem report, her age is 58 years. Hence, the age of deceased is taken at 58 years and therefore 10% of the income of the deceased is taken towards 'loss of future prospects'. As per the judgment of the Hon'ble Apex Court in the case of Sarla Verma & Ors

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v. Delhi Transport Corp. & Anr reported in 2009 (6) SCC 121 considering the age of the deceased, the proper multiplier would be '9'. Since the appellants are major son and the daughter is already married and living with her husband, the only major son remained with the deceased. Therefore, half of the amount is deducted towards the personal expenses of the deceased and remaining half of the amount would be considered as contribution to the family. Therefore, the compensation under the head ‘Loss Of Dependency’ is recalculated and quantified as follows:

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Rs.9,000 + 900 (10% of 9,000) x ½ x 9 x 12 =

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Rs.5,34,600/-

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Further, the Tribunal has awarded a

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compensation of Rs.1,00,000/- towards ‘loss of love and affection' which is nothing but 'loss of consortium'. As per the principles of law laid down by the Hon’ble Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 appellants – claimants who are the legal representatives-son and daughter of the deceased are awarded Rs.40,000/- each, under the head

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‘Towards loss of love and affection / Loss of Consortium’.

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The compensation of Rs.10,150/- is awarded under the head 'medical expenses' as per the actual bills produced by the appellants-claimants as the deceased died after sixteen days from the date of accident. Therefore, the same is found to be correct. Further, the compensation of Rs.20,000/- towards ' funeral expenses' is also just and proper and therefore, there is no ground for interference. Accordingly, the same are kept

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in tact. Rs.20,000/- towards 'food, nourishment and

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attending charges ' is just and proper and therefore the same is kept in tact.

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The appellants are entitled to the enhanced compensation as follows:

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1	Towards Loss of dependency (9,000 + 900 (10% of 9,000) x ½ x 9 x 12)	Rs.	5,34,006/-
2	Towards loss of love and affection	Rs.	1,80,000/-
3	Towards medical bills	Rs.	10,150/-
4	Towards funeral expenses	Rs.	20,000/-
5	Towards food, nourishment and attending charges	Rs.	20,000/-
	Total	Rs.	7,64,156/-

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The appellants-claimants are entitled for a total enhanced compensation of Rs.7,64,156/- as against Rs.3,50,150/- awarded by the Tribunal. Hence, the appellants are entitled for an additional Compensation of Rs.4,14,006/- (Rs.7,64,156 - Rs.3,50,150), along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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15. Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 21.02.2017 passed in MVC No.1948 by the Motor Accident Claims Tribunal and XXIII Additional Small Causes Judge, Bengaluru (SCCH-25), is modified to the above extent.

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iii. The appellants-claimants are entitled to an enhanced compensation of Rs.4,14,006/- (Rs.7,64,156 - Rs.3,50,150), along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. Draw award accordingly.

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Sd/JUDGE

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Mr Mahesh v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

Mr Mahesh v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

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