Partly allowed

Venkatesh E v. the Managing Director Bmtc

Karnataka HC6 Dec 2023MFA/2558/2020

Case brief

AI extract

What is this about?

The High Court allowed a miscellaneous first appeal under Section 173(1) of the Motor Vehicles Act. It modified the Tribunal's award of Rs.95,010/-, holding appellants entitled to Rs.5,15,000/- comprising funeral expenses, loss of estate at 50% of notional income, and Rs.40,000/- each for loss of parental consortium.

What did the court decide?

Apostribution appeal allowed in part. Compensation enhanced from Rs.95,010/- to Rs.5,15,00/- to be deposited by the respondent within six weeks.

Venkatesh E Vs the Managing Director Bmtc — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 2558 OF 2020 (MV)

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BETWEEN:

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VENKATESH E

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S/O LATE ERAPPA (ERAPPA WAS ALSO CALLED VEERAPPA) AGED 46 YEARS R/AT 1/A, MUNISWAMY LAYOUT HEBBAL KEMPAURA BENGALURU NORTH -560024.

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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SMT. VEENA W/O SRI UDAY V.R AGED 32 YEARS RESIDING AT 81, 1ST MAIN 4TH CROSS, M.S.NAGAR THIRUMENAHALLI, YELAHANKA BENGALURU NORTH BENGALURU-560064.

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(BY SRI. SRIDHAR D S., ADVOCATE)

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…APPELLANTS

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AND:

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THE MANAGING DIRECTOR BMTC, K.H.ROAD, SHANTHINAGAR BENGALURU-560027

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…RESPONDENT

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(BY SMT. SOHANI A HOLLA.,ADVOCATE)

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NC: 2023:KHC:44190 MFA No. 2558 of 2020

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.12.2019 PASSED IN MVC NO. 929/2019 ON THE FILE OF THE C/C OF XX ADDITIONAL SMALL CAUSES JUDGE, XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AND MEMBER, MACT, BENGALURU SCCH-22, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment dated 12.12.2019 passed by the XX Additional Small Causes Judge and XVIII Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCCH-22) (for short ‘the Tribunal’) in MVC No.929/2019.

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Facts giving rise to the filing of the appeal briefly stated are that on 15.01.2019 at about 11.10 a.m., the deceased Jayamma was crossing the ring road near Hebbal circle, Bengaluru. At that time, a BMTC bus bearing registration No.KA-57/F-1921, came from Veerannapalya side, which was being driven in a rash and

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3 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased fell down, sustained grievous injuries and succumbed to the injuries on the way to the hospital.

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The claimants filed a petition under Section 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. The age, occupation and income of the deceased are denied. It was pleaded that the accident was due to the negligence of the deceased herself. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties, 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 got exhibited documents

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4 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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namely Ex.P1 to Ex.P18. On behalf of respondents, one witness was examined as RW-1. 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.

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The Tribunal further held that the claimants are entitled to a compensation of Rs.95,010/- along with interest at the rate of 6% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimants has raised the following contentions:

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(i) Firstly, at the time of the accident the deceased was working as a maid and was earning Rs.15,000/- per month. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs.5,000/-.

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(ii) Secondly, the claimants are entirely depending upon the income of the deceased. But the Tribunal has

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5 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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not awarded any compensation under the head 'loss of dependency', but awarded only ‘loss of estate’ by taking 25% of the income of the deceased instead of taking 50% of the income. In support of his contentions, he relied on a judgment of a Division Bench of this Court in the case of B.V.GOPALA vs. MEHABOOB PASHA AND OTHERS (MFA No.7318/2016 disposed of on 23.10.2020), following the judgment of the Hon’ble Apex court in the case of MANJURI BERA (SMT) vs. ORIENTAL INSURANCE CO. LTD. & ANOTHER reported in (2007) 10 SCC 643 has held that claimants are entitled for loss of estate at 50% of the income of the deceased.

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(iii) Thirdly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM reported in 2018 ACJ 2782 , each of the claimants are entitled for compensation under the head of ‘loss of love and affection and consortium’. Hence, he prays for allowing the appeal.

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6 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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On the other hand, the learned counsel for the Corporation has raised the following contentions:

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(i) Firstly, even though the claimants claim that the deceased was earning Rs.15,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.

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(ii) Secondly, the claimants are major children of the deceased and they are not depending upon the income of the deceased. The Tribunal has rightly awarded compensation under the head ‘loss of estate’.

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(iii) Thirdly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he prays for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award and original records.

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It is not in dispute that Jayamma died in the road traffic accident occurred on 15.01.2019 due to rash

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7 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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and negligent driving of the BMTC bus bearing registration No.KA-57/F-1921 by its driver.

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The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2019, the notional income has to be taken at Rs.14,000/- p.m. Even though the claimants claim that they are depending upon the deceased, since the first claimant is the major son and the second claimant is the married daughter of the deceased, they are not entitled to 'loss of dependency' and they are entitled to only ‘loss of estate’. A Division Bench of this Court in the case B.V.GOPALA (supra) has held that even for ‘loss of estate’ 50% of the income of the deceased has to be deducted for personal expenses and the remaining 50% has to be considered for calculating ‘loss of estate’. Accordingly, income of Rs.7,000/- has to be taken. The

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8 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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deceased was aged about 68 years at the time of the accident and multiplier applicable to her age group is ‘5’. Thus, the claimants are entitled to compensation of Rs.4,20,000/- (Rs.7,000125) on account of ‘loss of dependency’. In addition, the claimants are entitled to Rs.15,000/- on account of ‘funeral expenses’. In view of

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the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE (supra) , the claimants are entitled for compensation of Rs.40,000/- each under the head of ‘loss of parental consortium’.

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Thus, the claimants are entitled to the following

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compensation:

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Compensation under different Heads	Amount in (Rs.)
Funeral expenses	15,000
Loss of estate	4,20,000
Loss of Parental	80,000
consortium
Total	5,15,000

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9 - NC: 2023:KHC:44190 MFA No. 2558 of 2020

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In view of the above, I pass the following order:

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(i) The appeal is allowed in part.

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(ii) The judgment of the claims Tribunal is modified.

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The claimants are entitled to a total compensation of Rs.5,15,000/- in place of Rs.95,010/- awarded by the Tribunal.

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(iii) The Corporation is directed to deposit the compensation amount along with interest @ 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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Sd/JUDGE

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List No.: 3 Sl No.: 74

Venkatesh E v. the Managing Director Bmtc

Case brief

What is this about?

What did the court decide?

Venkatesh E v. the Managing Director Bmtc

Case brief

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