Partly allowed

Divisional Controller v. Smt. Sanamma

Karnataka HC10 Jul 2023MFA/5782/2017

Case brief

AI extract

What is this about?

The High Court in an appeal by KSRTC allowed the appeal partially and dismissed the cross-objection. The court found no evidence of contributory negligence by the deceased. It modified the tribunal's award to Rs.13,69,900/- based on notional income and interest rates, rather than the originally awarded Rs.13,81,000/-.

What did the court decide?

Compensation modified to Rs.13,69,900/- with interest at 9% p.a. instead of Rs.13,81,000/- as per prior award.

Divisional Controller Vs Smt. Sanamma — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 5782 OF 2017 (MV-D)

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C/W

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M.F.A. CROSS OBJECTION NO. 108 OF 2018 (MV-D)

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IN M.F.A NO. 5782/2017 BETWEEN:

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DIVISIONAL CONTROLLER, KARNATAKA STATE ROAD TRANSPORT CORPORATION, RURAL DIVISION, BANNIMANTAP, MYSORE-570 015.

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(OWNER: MANAGING DIRECTOR KSRTC HEAD OFFICE BANGALORE)

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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DEPOT-KR NAGAR, MYSORE DISTRICT, OWNER OF KSRTC BUS BEARING NO. KA-09/F-4460.

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…APPELLANT

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(BY SRI T PRAKASH, ADVOCATE)

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AND:

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SMT. SANAMMA, W/O. MAHADEVA. L, AGED ABOUT 48 YEARS.

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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2. MAHADEVA. L

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S/O. LATE LAKAIAH, AGED ABOUT 58 YEARS.

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BOTH ARE R/AT NO.119/C, BELAVADI NEW EXTENTION, BELAVADI POST, MYSORE TALUK, MYSORE-570 018.

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…RESPONDENTS

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(BY SMT SUMA.P KEDILAYA, ADVOCATE FOR SRI V PADMANABHA KEDILAYA, ADVOCATE FOR R1 & R2.)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC NO.642/2014 ON THE FILE OF THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE MYSURU AS A PRESIDING OFFICER MACT, AWARDING COMPENSATION OF RS.13,31,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN M.F.A CROB. 108/2018 BETWEEN

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1 . SANNAMMA, W/O MAHADEVA.L, AGED ABOUT 49 YEARS.

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2 . MAHADEVA L, S/O LATE LAKKAIAH, AGED ABOUT 59 YEARS, BOTH ARE R/AT NO.119/C, BELAVADI NEW EXTN., BELAVADI POST, MYSURU TALUK -570 018.

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...CROSS OBJECTORS

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(BY SMT. SUMA P KEDILAYA, ADVOCATE FOR SRI PADMANABHA KEDILAYA V, ADVOCATE FOR

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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APPELLANTS)

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AND:

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DIVISIONAL CONTROLLER, TRANSPORT CORPORATION, RURAL DIVISION, BANNIMANTAP, MYSURU-570 015.

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…RESPONDENT

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(BY SRI T PRAKASH, ADVOCATE)

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THIS MFA CROB IS IN MFA NO.5782/2017 PASSED U/O.41 RULE 22 R/W SEC.173(1) OF THE MV ACT, AGAINST THE JUDGMENT AND AWARD DT.01.12.2016 PASSED ON MVC NO.642/2014 ON THE FILE OF THE JUDGMENT ADDITIONAL SMALL CAUSES, SENIOR CIVIL JUDGE, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Heard the learned counsel appearing for the appellantKSRTC and respondents-claimants who were also parties in MFA.Crob.No.108/2018.

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The appeal and the cross-objection are directed against the judgment and award passed in MVC.No.642/2014 dated 01.12.2016 by the learned Additional Court by Small Causes, Mysuru and MACT, Mysuru, whereby, the claimants

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4 - NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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were awarded compensation of Rs.13,81,000/- on account of the death of their son in a road traffic accident.

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The petitioners who are the parents of the deceased contended that when their son was traveling on motorcycle near Nandi Circle, Kattemalalavadi Village, Hunsur taluk, the driver of KSRTC bus bearing registration No.KA-09-F-4460 came in high speed and in negligent manner, while overtaking from the left side of the said motorcycle, dashed to the same and caused the accident. Due to which, their son succumbed to the injuries on the spot. The Police registered a case against the driver of the bus and ultimately, they filed a charge sheet against the bus driver alone. The petitioners contended that prior to the accident, the deceased was studying in ITI and also doing fitter work and earning Rs.300/- per day and due to his untimely death, the petitioners have been stranded and are suffering economically and therefore, the respondent-KSRTC be directed to award the adequate compensation.

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On issuance of notice, the respondent-KSRTC appeared through its counsel before the Tribunal and filed objections.

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5 - NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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The respondent-KSRTC contended that the accident

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was not due to the negligence on the part of the bus driver but it was due to the negligence on the part of the deceased. It was contended that the deceased came in rash and negligent manner and suddenly applied the brake and dashed to the right side rear tire of the bus and that the respondent-KSRTC has paid an exgratia of Rs.50,000/- to the petitioners on humanitarian grounds. It has contended that the compensation claimed is highly exorbitant, imaginary and therefore, the petition be dismissed.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and the petitioner No.1 was examined as PW.1 and Ex.P1 to P21 were marked and witness was examined as PW.2. The respondent-Corporation examined the conductor of the bus as RW.1.

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After hearing the arguments by both the sides, the Tribunal awarded a compensation of Rs.13,81,000/- under the following heads:

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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PARTICULARS	AMOUNT (IN RS.)
Towards loss of financial dependency	12,96,000/-
Towards loss of love and affection	50,000/-
Towards loss of estate	10,000/-
Towards funeral expenses and transportation of body	25,000/-
TOTAL	13,81,000/-

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Aggrieved by the said judgment and award, the respondent-KSRTC has preferred the appeal before this Court in MFA.No.5782/2017. So also, the claimants have approached this Court in MFA.Crob.No.108/2018 seeking enhancement of the compensation.

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The appellant-KSRTC contends that the Tribunal has not appreciated the evidence in a proper way and there was contributory negligence on the part of the deceased and also that the deceased being an ITI student, he was not an earning member and as such, the 'loss of dependency' calculated by the Tribunal is also erroneous. The appellant-KSRTC has also contended that the deceased was not having a valid driving licence.

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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On the other hand, the claimants/Cross Objectors in MFA.Crob.No.108/2018 have contended that the notional income considered by the Tribunal is not in consonance with the settled principles of law and the compensation awarded is abysmally low and meager and sought for enhancement of the compensation.

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Perused the Tribunal records.

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A perusal of the records reveal that the learned counsel for the appellant-KSRTC has reiterated the contentions taken by him in the appeal memo. The first contention of the learned counsel for the appellant is that there was contributory negligence on the part of the deceased as he was not having a valid driving licence at the time of the accident.

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It is relevant to note that none of the documents produced by the petitioners or the respondents disclose that the deceased was having a valid driving licence or not at the time of the accident. The cross-examination of PW.1 disclose that she do not know whether the deceased was having a driving licence or not. However, she had denied that the deceased was not able to ride a motorcycle and therefore, he

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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himself had dashed to the rear right tire of the bus. Therefore, it is evident that PW.1 has pleaded ignorance about the driving license and negligence on the part of the deceased. Obviously, PW.1 was not an eyewitness to the accident.

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The evidence of PW.2 discloses that he was an eyewitness of the accident and in the cross-examination of PW.2, there is nothing which show that there was any negligence on the part of the deceased. Therefore, the crossexamination of PWs.1 and 2 as well as the documents produced do not indicate that there was any negligence of the rider of the motorcycle. The Police papers coupled with sketch of the spot show that the accident happened at the center of the road and the two-wheeler had been dragged for a distance of about 25 feet. The dragging was to the right of the road. This aspect should have been explained by the bus driver as to why the bus dragged the two wheeler towards the right side of the road. Obviously, the appellant-KSRTC has not examined the driver but it has examined the conductor of the said bus as RW.1. RW.1 in his cross-examination has stated that he had not seen the accident and he is unable to explain why the bus had dragged the two-wheeler to the right side of the road. He also

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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admit that the bus driver or himself has not filed any complaint to the Police. The MVI report produced at Ex.P5 also do not throw any light regarding the negligence on the part of the twowheeler rider/deceased.

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Under these circumstances, I do not find any reason to hold that there is any evidence to show that there was contributory negligence on the part of the deceased. Nonproduction of driving licence of the deceased by the petitioners cannot be a reason to hold that there was contributory negligence on the part of the deceased. Unless an omission or commission is established on the part of the deceased, nonproduction of the driving licence cannot in any way establish the contributory negligence. Under these circumstances, the contention of the appellant-KSRTC regarding the contributory negligence cannot be accepted.

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So far as the quantum of compensation is concerned, as claimed by the petitioners, the evidence discloses that the deceased was a student as well as working as a fitter. Exs.P9 to P20 disclose that he had participated in various cultural activities as well as he was also a student.

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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However, these documents do not show the income of the deceased. Therefore, the Tribunal has taken notional income as the income of the deceased. No fault can be found with the

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same. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat prescribe a notional income of Rs.8,500/- pm for the year 2014. In umpteen number of decisions, it has been held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act and therefore, the notional income of the deceased is considered at Rs.8,500/- per month. The deceased was aged 23 years as on the date of accident. Therefore, the 'loss of dependency' is to be calculated by adding 40% to the notional income of the deceased towards future prospects, that comes to Rs.11,900/- (Rs.8,500/- + Rs.3,400/-). Hence, the 'loss of dependency' is calculated as Rs.11,900/- X 12 X 18 X 50% = Rs.12,85,200/- b y adopting multiplier '18'.

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The decision in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND

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OTHERS¹ lays down that the petitioners are also entitled for the compensation under the conventional heads. Since the compensation is being determined after nearly nine years,

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there shall be an escalation of 10% twice. Therefore, the petitioners are also entitled for Rs.48,400/- towards 'loss of love and affection' and a sum of Rs.18,150/- each towards 'funeral expenses' and 'loss of estate'.

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Thus, the petitioners are entitled for the modified

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compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Loss of dependency	12,85,200/-
Loss of love and affection	48,400/-
Funeral expenses and loss of estate (Rs.18,150/-X 2)	36,300/-
TOTAL	13,69,900/-

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Thus, the petitioners are entitled for compensation of Rs.13,69,900/- with interest.

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Learned counsel appearing for appellant-KSRTC

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submits that the Tribunal has awarded interest at the rate of 9% per annum and the same needs to be reduced to 6% per

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1 AIR 2017 SC 5157

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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annum. I find no logic in the said submission made by the learned counsel for the appellant. The Tribunal has awarded interest of 9% in the year 2016. There is no mention of any reason for awarding 9% interest. This Court notices that the Tribunals were awarding the interest at the rate of 9% per annum based on a decision of the Hon'ble Apex Court. However, at present, the interest rates have been reduced and the banks are not giving the interest at 9% per annum which existed earlier. Therefore, I do not find any reason to accede to the submission made by the learned counsel appearing for the KSRTC that the rate of interest has to be reduced. Obviously, if the appellant-KSRTC had deposited the amount as awarded by the Tribunal, it would have definitely saved the interest.

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In view of the above discussion, the appeal filed by the appellant-KSRTC needs to be partly allowed and the crossobjection filed by the petitioners needs to be dismissed. Hence, the following:

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ORDER

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(i) MFA No.5782/2017 filed by the KSRTC is allowed in part and MFA Crob.No.108/2018 filed by the petitioners is dismissed.

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NC: 2023:KHC:23850 MFA No. 5782 of 2017 C/W MFA.CROB No. 108 of 2018

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(ii) The impugned judgment and award passed by the Tribunal is modified and the petitioners are entitled for a sum of Rs.13,69,900/- instead of Rs.13,81,000/- awarded by the Tribunal along with interest at the rate of 9% p.a. from the date of petition till its deposit before the Tribunal.

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(iii) Appellant-KSRTC is directed to deposit the entire compensation amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal stands unaltered.

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Sd/JUDGE

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NR/-

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List No.: 1 Sl No.: 90

Divisional Controller v. Smt. Sanamma

Case brief

What is this about?

What did the court decide?

Divisional Controller v. Smt. Sanamma

Case brief

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