Partly allowed

Smt Sharadamma v. Mr. Suresh P Chowdaki

Karnataka HC10 Oct 2022MFA/539/2020

Case brief

AI extract

What is this about?

High Court allowed an appeal partly, enhancing compensation from Rs. 8.80 Lakhs to Rs. 17.02 Lakhs for heirs of a deceased agriculturist killed in a road traffic accident. Court recalculated loss of dependency and love and affection based on deemed income and cited Sections 166 and 173(1) of MV Act.

What did the court decide?

Allowed appeal in part; enhanced compensation to Rs. 17.02 Lakhs with interest at 6% p.a.; Respondent No. 4 to deposit enhanced amount within eight weeks.

Smt Sharadamma Vs Mr. Suresh P Chowdaki — 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 10^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.539/2020(MV-D)

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BETWEEN:

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SMT. SHARADAMMA w/O LATE B S BASAVARAJAIAH AGE 43 YEARS

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KUM B ANUSHA

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D/O LATE B.S BASAVARAJAIAH AGE 14 YEARS

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MASTER B NANDISH S/O LATE B.S BASAVARAJAIAH AGE 12 YEARS NO.2 AND 3 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT SHARADAMMA, THE 1^ST APPELLANT.

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SMT HULIYAMMA W/O LATE SHANTHAMARIYAIAH @ SHANTAMARIDEVARU, AGE 85 YEARS ALL ARE R/A BISALEHALLI VILLAGE AND POST KASABA HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT

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...APPELLANTS

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(BY SRI.NAGARAJA R C, ADVOCATE)

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AND:

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MR.SURESH P CHOWDAKI S/O PANDAPPA CHOWDAKI AGE 43 YEARS DRIVER OF THE KSRTC BUS BEARING NO KA.35/F-119, HAGRIBOMMANAHALLI DEPOT, HOSPETE DIVISION, R/O KILABANNUR VILLAGE, RAMADURGA TALUK, BELGAUM DISTRICT - 591123

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THE DIVISIONAL CONTROLLER, KSRTC HOSAPETE DIVISION PIN – 583201

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THE MANAGING DIRECTOR, KSRTC CENTRAL OFFICE, K H ROAD, SHANTHINAGARA BENGALURU – 562123 (R2 & R3 ARE DELETED V/O DATED 10.10.2022)

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THE MANAGING DIRECTOR, NORTH-EAST KARNATAKA ROAD TRASPORT COMPANY, CENTRAL OFFICERS SARIGE SUDANA, KALBURGI. (PROPOSED RESPONDENT)

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…RESPONDENTS

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(BY SRI.B.L.SANJEEV, ADVOCATE FOR R4; NOTICE TO R1 D/W; V/O DATED: 10.10.2022, R2 & R3 ARE DELETED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2019 PASSED IN MVC NO. 516/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MMACT, CHIKKAMAGALUR DISTRICT, KADUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS, THIS DAY , B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The claimants filed the present miscellaneous first appeal against the judgment and award dated 01.01.2019 made in M.V.C.No.516/2014 on the file of the Senior Civil Judge and M.A.C.T, Kadur, Chikkamagalur District (for short, 'the Tribunal') awarding compensation of Rs.8,80,000/- with interest at the rate of 7% p.a. from the date of petition till realization from the respondent No.3.

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The claimants who are the wife, the minor children and the mother of the deceased B.S.Basavarajaiah, have filed the claim petition under the provisions of Section 166 of the Motor Vehicles Act, 1988 claiming compensation contending that on 16.12.2013, B.S.Basavarajaiah came to Kadur on his personal work, after finishing the work, he was returning to his village Bisalehalli in his Yamaha Crux motor cycle bearing Regn.No.KA.13/K-5869 on the left

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side of the road in a slow manner by observing all the traffic rules, while traveling so, near Channapura gate, at about 10.00 p.m., a KSRTC bus bearing Regn.No.KA.35/F119 driven by the respondent No.1 in a rash and negligent manner with excessive speed came from Chikkamagaluru side and dashed the motor cycle in which B.S.Basavarajaiah was proceeding. Due to the said accident, B.S.Basavarajaiah fell down and sustained grievous injuries to his head, forehead, right leg and other parts of the body. Immediately, he was shifted to a Government Hospital, Kadur, for treatment, but he succumbed to the injuries sustained. After conducting postmortem, the deceased was handed over to the claimants. The claimants further contended that they spent Rs.50,000/towards medical and other expenses. The deceased was an agriculturist earning Rs.10,000/- p.m. and he was the only earning

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member of the family. The claimant No.1 is the wife and the other claimants are the children and the mother of the deceased, who have lost their beloved one and all the claimants were depending upon the earnings of the deceased. It is further contended that the jurisdictional police registered case against respondent No.1, who is the driver and respondent Nos.2 and 3 who are the owners of KSRTC bus bearing

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Regn.No.KA.35/F-119, and they are liable to pay the compensation of Rs.25,00,000/- with interest at the rate of 21% p.a.

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After service of notice, respondent Nos.1 and 2 appeared through their counsel, respondent No.3 remained absent and is placed ex parte and respondent No.2 alone filed statement of objections and contended that the driver of the KSRTC bus was driving the bus on an unfortunate day in a slow manner by observing all the traffic rules. The

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deceased who was driving his motor cycle in a rash and negligent manner without observing the traffic rules with excessive speed, dashed the KSRTC bus. It is further contended that the deceased B.S.Basavarajaiah was riding his motor cycle without having a valid and effective driving licence as on the date of accident. Respondent No.3 is not the owner of the bus and the Managing Director, NEKSRTC, Kalburgi, is not made as a party to the claim petition and sought to dismiss the claim petition.

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Based on the aforesaid pleadings, the

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Tribunal framed the following points for consideration:

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Whether the petitioners prove that one Basavarajaah has succumbed to grievous injuries due to the actionable negligent driving of KSRTC bus bearing Regn.No.KA.35/F-119 by the respondent No.1 in a road traffic accident which took place on 16.12.2013 at about 10.00 p.m.

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near Channapura gate on K.M.Road, Kadur tq.?

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Whether the petitioners prove that they are the L.Rs. of deceased Basavarajaiah?

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Whether the respondent No.2 proves that the deceased Basavarajaiah was not having valid and effective driving licence to drive the offending vehicle as on the date of accident?

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Whether the respondent No.2 proves that the accident was taken place due to the sole negligence of the riding of motor cycle by deceased Basavarajaiah?

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Whether this petition is bad for non joinder of necessary parties?

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Whether the respondent No.2 further proves that the victim B.S.Basavarajaiah died due to the lack of proper medial treatment and not due to the accident dated 16.12.2013?

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Whether the petitioners are entitled for the relief of compensation, if so, what amount?”

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In order to prove the case of the claimants,

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the wife of the deceased examined herself as P.W.1 and got marked 12 documents at Ex.P.1 to Ex.P.12. The respondent No.1 is examined as R.W.1.

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The Tribunal, considering both oral and documentary evidence on record, recorded a finding that the claimants have proved that on 16.12.2013, the deceased B.S.Basavarajaiah succumbed to the grievous injuries sustained by him in a road traffic accident due to the rash and negligent driving of respondent No.1 bearing KSRTC bus No.KA.35/F-119

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and the claimants are the legal heirs of the deceased. Respondent No.2 has failed to prove that the deceased was not having valid effective driving licence for the offending vehicle as on the date of the accident

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and the accident occurred due to rash and negligent driving by the deceased. Accordingly, the Tribunal has held that the claimants are entitled for a total compensation of Rs.8,80,000/- with interest at the rate of 7% p.a. from date of the petition till the realization from respondent No.3. Hence, the present appeal is filed by the claimants for enhancement of the compensation awarded by the Tribunal and the KSRTC has not filed any appeal against the impugned judgment and award passed by the Tribunal.

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We have heard the learned counsel for the parties to the lis .

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Sri. R.C.Nagaraj, learned counsel for the claimants contended that the Tribunal has erred in granting Rs.8,80,000/- with interest at the rate of 7% p.a. and the aforesaid compensation is on the lower side. He further contended that the deceased was

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aged about 40 years and was earning Rs.10,000/- per month as stated by PW.1 - wife of the deceased, but unfortunately, the Tribunal has taken Rs.6,000/- per month which is on the lower side. He further contended that the Tribunal has not awarded future prospects as held by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors reported in AIR 2017 SC 5157 thereby, he sought to allow the appeal filed by the claimants.

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Per contra , Sri. Srinivas, learned counsel appearing for B.L.Sanjeev, learned counsel for respondent Nos.2 and 3 sought to justify the impugned judgment and award passed by the Tribunal and contended that in the absence of any documents produced, the Tribunal is justified in taking the income of the deceased at Rs.6,000/- per month and proceeded to deduct 1/4^th and thereby, the Tribunal is

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justified in awarding compensation. He further contended that PW.1 has not produced any document to prove that the deceased was earning and therefore,

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the Tribunal has rightly not granted future prospects. Therefore, he sought to dismiss the appeal.

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In view of the aforesaid rival contentions urged by the learned counsels for the parties, the only point that would arise in the present appeal is:

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“whether the claimants have made out a case for further enhancement in the peculiar facts and circumstances in the present case?”

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We have given our anxious consideration to

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the arguments advanced by the learned counsels for the parties and perused the entire material on record carefully.

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It is undisputed fact that the deceased B.S.Basavarajaiah died in a road accident leaving behind his legal heirs viz ., the wife, the minor children

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and the mother, which occurred on 16.12.2013, due to rash and negligent driving by the driver of the KSRTC bus - offending vehicle and the same is evident from the material documents, such as, Ex.P.2 - FIR and Ex.P.8 - certified copy of the charge sheet. The same is not challenged either by the owner of the offending vehicle or by the driver. It is also not in dispute that the adverse finding recorded by the Tribunal that the respondent No.2 failed to prove the deceased was not having valid driving licence and the accident occurred due to rash and negligent driving of the deceased is also not challenged.

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PW.1, who is the wife of the deceased stated on oath that the deceased was an agriculturist earning Rs.10,000/- per month and he was the only earning member of the family and the claimants were depending on his income. Though the claimant No.1

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produced RTC - Ex.P.12, but has not produced any material document to prove that the deceased was earning Rs.10,000/- per month. In the absence of the material documents to prove the deceased was earning Rs.10,000/-, the Tribunal ought to have taken his notional income fixed by the Karnataka State Legal Services Authority as on the date of the accident. Unfortunately, the Tribunal ignoring the guidelines issued by the Karnataka State Legal Services Authority, Bengaluru proceeded to take the notional income of the deceased at Rs.6,000/- per month instead of Rs.8,000/- per month. If we take the income of the deceased as Rs.8,000/-, 40% has to be added taking into consideration the age of the deceased, who was aged 40 years at the time of the accident, in view of the decision of the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (supra). The deceased left behind his legal heirs viz .,

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the four claimants (the wife, the minor children and the mother), who were depending on the him, thereby, 1/4^th has to be deduced, in view of the decision by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr ., reported in (2009) 6 SCC 121 . Taking into consideration the age of the deceased as 40 years, the multiplier would be 15. As such, 'loss of dependency' would be Rs. 15,12,000/- (8,000 + 40%

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1/4 x 15 x 12).

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The 'loss of consortium' awarded by the Tribunal at Rs.40,000/- is just and proper. The Tribunal ought to have awarded Rs.1,60,000/towards 'love and affection', but has only awarded Rs.25,000/-. The Tribunal has awarded Rs.5,000/towards 'transportation of dead body' and the claimants are entitled to Rs.15,000/-. The 'funeral expenses' awarded at Rs.15,000/- is just and proper.

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Thereby, the claimants have made out a case for further enhancement.

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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.	Head of Compensation	Amount in Rs.
No.
1.	Loss of dependency	15,12,000.00
2.	Loss of love and affection (4,0000 x 4)	1,60,000.00
3.	Funeral expenses	15,000.00
4.	Loss of estate	15,000.00
	Total	17,02,000.00

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The Tribunal has already awarded a sum of Rs.8,80,000/and deducting the same out of Rs.17,02,000/-, the claimants are entitled to enhanced compensation of Rs.8,22,000/- with interest @ 6% p.a. from the date of petition till the date of realization. Accordingly, we answer point framed for

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consideration partly in the affirmative 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 is allowed in part.

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ii. The impugned judgment and award dated 01.01.2019 passed by the Tribunal in MVC No.516/2014 is hereby modified.

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iii. The claimants are entitled for total compensation of Rs.17,02,000/- as against Rs.8,80,000/- awarded by the Tribunal.

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iv. The claimants are entitled for enhanced compensation of Rs.8,22,000/with interest @ 6% p.a. from the date of petition till the date of realization.

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