Partly allowed

The Managing Director v. Smt Saraswathi K

Karnataka HC22 Nov 2023MFA/5892/2021

Case brief

AI extract

What is this about?

High Court deleted a first appeal against an M.V.C. award in a motor accident causing death. The bench modified the compensation quantification by correcting future prospects calculation and consortium amounts, reducing the total award from Rs.39.75 lakh to Rs.35.99 lakh with interest.

What did the court decide?

Modified the award to grant compensation of Rs.35,99,735/- with 6% interest from petition date till realization; maintained apportionment and investment.

The Managing Director Vs Smt Saraswathi K — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:42087-DB MFA No.5892/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE K.V.ARAVIND MISCELLANEOUS FIRST APPEAL No.5892/2021 (MV-D)

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BETWEEN:

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THE MANAGING DIRECTOR B.M.T.C, K.H.ROAD BANGALORE-560 027 …APPELLANT

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(BY SRI D.VIJAYAKUMAR, ADVOCATE)

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AND:

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SMT.SARASWATHI K W/O RAMACHANDRA AGED ABOUT 52 YEARS

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SRI RAMACHANDRA S/O MUDDAIAH

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AGED ABOUT 60 YEARS

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BOTH ARE R/AT NO.425, 6^TH CROSS PRAGATHIPURA, BANASHANKARI BIDARAHALLI BANASHANKARI II STAGE BENGALURU SOUTH

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BENGALURU – 560 070 …RESPONDENTS

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(BY SRI SATHEESH H K, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 17.08.2021 PASSED BY IX ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-15) IN MVC NO.1825/2019 AWARDING COMPENSATION OF RS.39,75,188/- WITH INTEREST AT 6% FROM THE DATE OF PETITION TILL REALIZATION.

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NC: 2023:KHC:42087-DB MFA No.5892/2021

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL.J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the compensation granted to the appellants/claimants under the impugned award in M.V.C.No.1825/2019 passed by the IX Additional Small Causes Judge & Additional MACT (SCCH-15), Bangalore is just”? is the question involved in this case.

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The appellant was the sole respondent and the respondents were the claimants before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The claimants are the mother and father of the deceased Venugopal.R. On 09.02.2019 at 4.40 p.m. when Venugopal was proceeding on his motorbike bearing Registration No.KA-05/KC-5269, near Lakshmivenkateshwara Service Station, Laggere, Sumanahalli Ring Road, within the jurisdiction of Kamakshipalya Traffic police station, BMTC bus bearing Registration No.KA-01-F-4838 hit the motorcycle of Venugopal. Venugopal fell down and right wheel of the bus

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ran over him. He succumbed to the injuries on the spot. The said bus was owned by the respondent.

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Regarding the accident, one Ramakrishnaiah filed the complaint before Kamakshipalya Traffic police against the driver of BMTC Bus. On the basis of the said complaint, the said police registered first information report as per Ex.P1 in Crime No.21/2019 of their police station against the driver of the bus. On investigation, the police filed the charge sheet as per Ex.P6 against the driver of the said bus for the offences punishable under Sections 279 and 304A of IPC stating that, the accident occurred due to actionable negligence on the part of the driver of the bus.

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The claimants filed M.V.C.No.1825/2019 claiming compensation of Rs.48,00,000/- from the respondent on the ground that the accident and consequential death occurred due to actionable negligence on the part of the driver of the bus. The claimants further contended that Venugopal was earning Rs.25,263/- per month from his employment in FDSBG Engineering Services Private Limited and they were dependant on his income. They further claimed that due to untimely death of Venugopal, they suffered emotionally and

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NC: 2023:KHC:42087-DB MFA No.5892/2021

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financially and the respondent being owner of the bus is liable to compensate the damages.

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The respondent contested the petition denying actionable negligence on the part of the driver of the bus, age, occupation, income of the deceased and its liability to pay compensation.

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To substantiate the claim of the claimants, claimant No.1 was examined as PW.1 and employer of the deceased was examined as PW.2. On behalf of the claimants, Exs.P1 to P28 were marked. The respondent examined the driver of the offending bus as RW.1. No documentary evidence was produced on its behalf.

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The Tribunal on hearing the parties and relying on the oral and documentary evidence held that the accident occurred due to actionable negligence on the part of the driver of the bus. The Tribunal relying on the evidence of PW.2, Exs.P8 to P10 and Exs.P21 to P23 held that the deceased was drawing salary of Rs.25,263/- per month. The Tribunal added 50% to the income of the deceased by way of future prospects and deducted 50% of his income towards his personal and living expenses.

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Relying on Ex.P14 SSLC Marks card, the Tribunal

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considered the age of the deceased as 27 years, applied 17 multiplier and assessed the compensation under the head loss of dependency at Rs.38,65,188/-. The Tribunal in all awarded compensation of Rs.39,75,188/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Towards loss of dependency	38,65,188.00
2.	Towards parentalconsortium	80,000.00
3.	Towards loss of estate	15,000.00
4.	Towards funeral expenses	15,000.00
	Total	39,75,188.00

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Sri D.Vijaya Kumar, learned Counsel for BMTC submits that the findings of the Tribunal on negligence and quantum of compensation is unjustifiable. He submits that the compensation awarded by the Tribunal on all the heads is on the higher side. He questions the assessment of future prospects at 50% on the ground that same is contrary to the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi¹ case.

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Per contra Sri Satheesh H.K., learned Counsel for the claimants justifies the findings of the Tribunal with regard to negligence as well as quantum of compensation. He

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1 AIR 2017 SC 5157

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submits that, the Tribunal awarded the compensation based on the evidence adduced by the parties. That does not warrant interference.

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Analysis

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Reg. Negligence:

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The respondent BMTC also does not dispute occurrence of the accident. But according to the respondent, it was the deceased who was negligent and responsible for the accident. Admittedly on the complaint filed against RW.1 soon after the accident, the police conducted investigation and filed the charge sheet against him. The charge sheet is prima facie evidence of the actionable negligence on the part of the driver of the bus, unless the same is rebutted by the respondent.

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RW.1 though in his chief examination stated that Venugopal himself was responsible for the accident and death, in his cross-examination he admits that the police on investigation filed the charge sheet. He also admits that in the said case he is facing trial. He states in the crossexamination that he has no personal knowledge about the deceased not possessing licence. Though he claims that he had been to the police station and the police did not accept

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his complaint, he admits that on the police not registering his complaint, he did not file any complaint before higher police officers. He admits that he has not sought quashing of the charge sheet. The charge sheet was filed against him to the effect that he was responsible for the accident due to actionable negligence. The same was not rebutted. Therefore the Tribunal was justified in holding that the accident occurred due to actionable negligence on the part of the driver of the bus/RW.1.

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Reg. Quantum:

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The relationship of the claimants with the deceased Venugopal was not disputed. As per his SSLC Marks Card Ex.P14, his date of birth was 01.07.1992. Therefore as on the date of the accident, he had completed the age of 26 years. To show that the deceased was working as CADD Engineer-Vessels at FDSBG Global Export Company Pvt. Ltd. and he was drawing salary of Rs.25,263/- per month, the claimants relied on the evidence of PW.2 and Exs.P8 to P28.

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PW.2-Senior Manager, HR Department of FDSBG Global Export Company Pvt. Ltd. deposed in support of such documents and the employment of the deceased with them

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as CADD Engineer-Vessels. Thereby his employment was established. As per Ex.P19 Form No.16 for the assessment year 2015-2016 from 16.02.2015 to 31.03.2015, his gross income was Rs.23,757/-. Ex.P20 Form No.16 for the assessment year 2016-2017 shows gross salary income of the deceased was Rs.1,84,521/-.

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As per Ex.P22 the salary slip of the deceased for the month of January 2019, his last drawn salary was Rs.25,263/-. Therefore his annual income comes to Rs.25,263/- X 12 = 3,03,156/-. Out of that, 10% of the income has to be deducted towards payment of income tax and professional tax which comes to Rs.3,03,156 - 30,315/- = Rs.2,72,841/-. Therefore annual income comes to Rs.2,72,841/-.

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Admittedly the deceased was a bachelor. As per the judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation² 50% of the income has to be deducted towards his personal expenses, therefore the annual net income comes to Rs.2,72,841/- x 50%= Rs.1,36,420.50/- rounded to Rs.1,36,421/-.

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2 AIR 2009 SC 3104

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As per the judgment of the Hon'ble Supreme

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Court in Pranay Sethi’s case referred to supra , 40% of the income of the deceased has to be added in case of self employed person, whereas in case of permanently employed person, aged below 40 years, 50% of the income of the deceased has to be superadded to his income. The evidence of PW.2 and Ex.P18 the appointment letter, the deceased was appointed on 16.02.2015 on probation for six months. By the time the unfortunate accident took place, he had completed his probation period and his employment was made permanent. That is also evident from Clause No.3 of Ex.P18. In Ex.P18 the age of superannuation was 58 years. Nothing was produced to establish that the employment of the deceased was not made permanent, whereas as per the evidence of PW.2 the deceased continued in the service. That is evident from the records and pay slips produced by the claimants, therefore it cannot be said that the deceased was self employed and only 40% of the income has to be added by way of future prospects.

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In view of the law laid down in the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra , 50% of the income of the deceased has to be

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superadded towards future prospects i.e. Rs.1,36,421/- x 50%= Rs.68,210.50. Therefore his annual income comes to Rs.1,36,421 + Rs.68,210.50= 2,04,631.50/-

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As per the judgment of the Hon’ble Supreme

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Court in Sarla Verma’s case referred to supra , the applicable multiplier for his age is 17. Therefore, the compensation payable on the head of loss of dependency comes to Rs.2,04,631.50 x 17= Rs.34,78,735.50/rounded to Rs.34,78,735/-.

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The claimants being aged parents of the deceased were entitled to compensation on the head of loss of filial consortium. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd. v. Nanu Ram³ case, they are entitled to compensation of Rs.40,000/- each with escalation of 10% which comes to Rs.88,000/- on the head of consortium.

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As per the aforesaid judgments, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for funeral expenses and

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3 2018 (18) SCC 130

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transportation with escalation at 10%. The compensation

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payable on the said heads comes to Rs.33,000/-. Therefore

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just compensation payable to the claimants in this case is as

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follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	34,78,735/-
2.	Loss ofconsortium	88,000/-
3.	Loss of estate & funeral	33,000/-
	expenses
	Total	35,99,735/-

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For the aforesaid reasons, the appeal deserves to

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be allowed in part. Hence, the following:

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ORDER

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The appeal is partly allowed.

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The award in M.V.C.No.1825/2019 passed by the IX Additional Small Causes Court & Additional MACT (SCCH-15), Bangalore is modified as follows:

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(i) The claimants are entitled to compensation of Rs.35,99,735/- with interest thereon at 6% p.a. from the date of petition till the date of its realization.

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(ii) The respondent being the Insurer shall deposit the enhanced compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order.

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