Sri Basavaraju Vs the Divisional Controller

SRI BASAVARAJU S/O LATE KENCHEGOWDA, AGED ABOUT 38 YEARS, PRESENTLY R/AT NO.92, 2^ND FLOOR, 3^RD CROSS, SRINIVASA BUILDING, DEVINAGAR, NEAR KANNURAMA LAYOUT, RMV II STAGE, BENGALURU-560094.

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PRESENT R/AT AND PERMANENT ADDRES, SRI BASAVARAJU, S/O LATE KENCHEGOWDA, NO.73, SHYANUBOGANAHALLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT.

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…APPELLANT

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(BY SRI. UDAYA KUMAR R L.,ADVOCATE)

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HC-KAR

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AND:

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THE DIVISIONAL CONTROLLER KSRTC, BENGALURU, CENTRAL DIVISION, K H ROAD, SHANTHINAGAR, BENGALURU-560048.

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SMT GANGAMMA W/O RANGEGOWDA, AGED ABOUT 51 YEARS, R/AT NO.15, VENKATESHVARA SCHOOL ROAD, 6^TH CROSS, NEAR SUBRAMANYA TEMPLE, NAGASHETTAHALLI, RMV II STAGE, BENGALURU-560094.

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…RESPONDENTS

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(BY SRI.G. LAKSHMEESH RAO., ADVOCATE FOR R1; SRI. PRAMODA GOWDA T.P., ADVOCATE FOR R2)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.04.2021 PASSED IN MVC NO.652/2017 ON THE FILE OF THE XXI ACMM AND XXIII ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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HC-KAR

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IN MFA NO. 5974/2021

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BETWEEN:

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THE DIVISIONAL CONTROLLER KSRTC BANGALORE CENTRAL DIVISION K H ROAD SHANTHINAGAR BANGALORE 560 027.

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...APPELLANT

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(BY SRI. G LAKSHMEESH RAO.,ADVOCATE)

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AND:

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SRI BASAVARAJU

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S/O LATE KENCHEGOWDA AGED 38 YEARS R/AT NO.15 VENKATESHWARA SCHOOL ROAD 6^TH CROSS NEAR SUBRAMANYA TEMPLE NAGASHETTIHALLI BENGALURU NORTH RMV II STAGE BENGALURU 560 094.

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SMT GANGAMMA

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W/O LATE RANGEGOWDA AGED ABOUT 54 YEARS R/AT NO.15 VENKATESHWARA SCHOOL ROAD 6^TH CROSS

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HC-KAR

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NEAR SUBRAMANYA TEMPLE NAGASHETTIHALLI BENGALURU NORTH RMV II STAGE BENGALURU 560 094.

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...RESPONDENTS

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(BY SRI. UDAYA KUMAR R L.,ADVOCATE FOR R1; NOTICE TO R2 SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.04.2021 PASSED IN MVC NO.652/2017 ON THE FILE OF THE XXI ACMM, XXIII ADDITIONAL SMALL CAUSE JUDGE, MACT, BENGALURU, (SCCH-25), AWARDING COMPENSATION OF RS.14,82,072/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT OF THE AWARD AMOUNT.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE B M SHYAM PRASAD

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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These appeals are as against the Judgment and Award dated 23.04.2021 in MVC No.652/2017 on the file of the Motor Accident Claims Tribunal and Court of Small Causes [for short, ' the Tribunal' ]. The Transport Corporation’s appeal is in MFA No. 5974/2021, and the Claimant’s appeal is in MFA No. 2952/2021. The Tribunal has allowed the claim petition granting compensation in a sum of Rs.14,82,072/- with interest at 6% per annum from the date of petition till deposit under the following heads:

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Sl. No.	_Head of Compensation _	Amount [Rs.]
1	Loss of expectation of life	10,000
2	Loss of estate	14,52,072
3	Loss of Consortium	10,000
4	Transportation and funeral	10,000
	expenses
	*Total*	*14,82,072*

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HC-KAR

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2. The claimant's wife, Smt. Varalakshmi

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K.R., was riding a two-wheeler with a pillion when there is accident involving the Transport Corporation's bus. The date of the accident is on 12.12.2016. The claimant asserts that the accident was because the driver of the bus was negligent, and the Transport Corporation asserts that the deceased herself was negligent. The Tribunal has answered this controversy while considering Issue No. 2 viz., whether the claimant proves that his wife died because of the rash and negligent driving of the Transport Corporation's bus.

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The Transport Corporation has relied

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upon certain communication by the Police Officer, who has investigated the reason for the accident, and the Spot Sketch to assert that the deceased was

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negligent. The communication [Exhibit-R2] is about:

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[a] the deceased did not possess a driving license,

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HC-KAR

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[b] the vehicle not being covered under

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insurance, and

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[c] some suspicion about the true registration of

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the vehicle.

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The spot sketch shows that the place of the accident is on the path of the two-wheeler and not on the Bus’s path with a certain trajectory of the bus’s travel before the accident.

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The Tribunal has considered the spot sketch and the Communication [and the other documents] to conclude that the driver of the bus was negligent. The Tribunal has reasoned that the public documents viz., the Police records show that the driver of the bus was negligent and that the Transport Corporation has produced no document to show that the deceased did not possess a driving license. On the question of compensation, the Tribunal, relying upon the decision of this Court in ' A

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HC-KAR

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Manavalagan v. A. Krishnamurthy and Others '¹ ,

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has concluded that the claimant would only be entitled for loss of estate as against loss of dependency, and the Tribunal has granted a sum of Rs.14,52,072/- taking 25% of the deceased's income as her savings.

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Sri. G. Lakshmeesh Rao, the learned counsel for the Transport Corporation, argues to support the case that the deceased must be held liable at least to some extent, and in this regard, the learned counsel again reiterates the Transport Corporation's case that the deceased did not hold a driving license and that the sketch drawn at the place of the accident shows that the deceased was driving on the extreme right and closer to the median marking. Sri. G. Lakshmeesh Rao argues that this Court, therefore, must interfere with the Tribunal’s finding on the reason for the accident.

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1 ILR 2004 KAR 3268

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HC-KAR

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6. The Police Inspector in Exhibit-R2 has

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informed the Security Office of the Corporation about the deceased not possessing a driving license and the two-wheeler not being covered under an insurance policy and suspicion about the due registration of the vehicle. However, the only ocular evidence on the reason for the accident, apart from the documents, is the evidence of the driver of the bus. His testimony must be tested against the documents. The spot sketch prepared by the Police as part of the investigation remains unchallenged, and the sketch depicts that the accident was on the right lane of the two-path road when the bus had to be on the left lane.

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Sri G Lakshmeesh Rao questions the credibility of the spot sketch to contend that the trajectory of the bus is shown to be coming at an angle and that could not be. If the Transport Corporation had to prevail on this ground the sketch

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HC-KAR

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had to be challenged. The Transport Corporation has not summoned the police to show that the trajectory of the path as mentioned in the spot sketch undermines the entire probative value as regards the place of impact. This Court, in the absence of evidence by the Transport Corporation, cannot infer that the sketch is incredulous. The Corporation therefore cannot succeed on this ground.

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Insofar as the communication as per Exhibit-R2, it would suffice for this Court to observe that the Transport Corporation, to succeed on the ground that the accident was because the deceased did not hold a driving license, had to bring on record evidence to build a nexus between the reason for the accident and the deceased not holding a valid license. There is no such evidence. This Court is not persuaded to accept the canvass on behalf of the Transport Corporation or opine that the Tribunal's

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HC-KAR

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finding on the reason for the accident is otherwise perverse.

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Sri. G. Lakshmeesh Rao next submits that

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this Court may not interfere with the Tribunal’s finding that the claimant was not dependent on the deceased. The learned counsel argues that the Tribunal has rightly concluded that the claimant was not dependent on his wife because [a] he was working as a driver with M/s. Star City Cars - a Taxi service and [b] he and the wife did not live together. The learned counsel for the claimant is heard in the light of this canvass and the claimant’s case for enhancement in the compensation.

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However, the evidence is that the claimant and the deceased were married four years prior to the accident. The deceased was employed as a ' Quality Analyst' with M/s. Hinduja Global Solutions Limited.

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The letter of appointment issued to the deceased [ with the details of the pay package ] is marked as

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HC-KAR

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Exhibits-P17 and P18. It is based on these documents that the Tribunal has opined that the deceased was earning Rs.25,833/- as on the date of the accident.

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The claimant, who was required to show the dependence has spoken about his own vocation as a driver and that his income was Rs.10,000/- per month as against his wife’s monthly income of Rs.25,833/- as a Quality Analyst . This Court is of the considered view that merely because the vocation of the husband required him to travel and the deceased was staying in a paying guest room, is no reason to infer that there was no dependence. In fact, the claimant's dependence is established by the disparity in his income and his wife’s income and the nature of their respective employment.

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This Court, therefore, finds that the Tribunal could not have proceeded on the ground that the husband, the claimant, would be entitled to

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HC-KAR

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loss of Estate. As such, the loss of dependency, therefore, must be computed, taking the income of the deceased at Rs.25,833/-, with addition towards future prospects at 40% and deduction of one half towards personal expenses because the claimant and the deceased did not have children. If the loss of dependency is computed thus keeping the multiplier of 17 because the deceased was aged twenty-six years as of the date of the accident, it would be in the sum of Rs.36,88,932/- as against Rs.14,52,072/awarded by the Tribunal. The Computation is as follows:

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Details for Computation of Loss of Dependency
MonthlyIncome		25833
Addition towards Future Prospects	40%	10333
Monthly Income + Future		36,166
Prospects
Annual Income	12	4,33,992
Deduction towards personal expenses	50%	2,16,996
Multiplicand [after deduction to personal Expenses]	wards	2,16,996
Multiplier	17
Loss of Dependency		36,88,932

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HC-KAR

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In addition, the claimant and the deceased’s mother would be entitled for loss of consortium of Rs.40,000/- each and Rs.38,000/- [with escalation], for funeral and other expenses.

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At this stage, Sri. G. Lakshmeesh Rao canvasses that this Court may confine consortium only to the claimant and not grant any consortium to the deceased’s mother, who is the second respondent, only to be opposed by Sri. Udaya Kumar R L contending that the mother has not raised a claim and she has not participated in the proceedings. The learned counsel also canvasses that if the mother is to be considered a dependent, the deduction towards the personal expenses must be only one third.

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These circumstances are also considered, as aforesaid, in the light of the undisputed fact that the claimant and the deceased were living together and that the second respondent, though being the

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HC-KAR

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mother and a party to the proceedings, has not participated. Her non-participation could be for multiple reasons, and that cannot by itself be a reason to exclude her from compensation. This Court is of the view that the mother cannot be excluded from a share in the compensation and that she must be granted just and reasonable compensation as well and that she would on her own account be entitled to consortium. Therefore, the award towards consortium must be in the sum of Rs.40,000/- each for the claimant and the deceased's mother [ the second respondent ] with a further amount of Rs.38,000/towards the conventional heads.

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On the question of apportionment, this

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Court, in the circumstances, is of the view that the compensation must be distributed two - thirds and one-third between the claimant and the deceased’s mother after deducting Rs.50,000/- received by her from the Transport Corporation on terms. The

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HC-KAR

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claimant and the second respondent-mother will thus

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be entitled to a total sum of Rs.38,06,932/- as against the sum of Rs.14,82,072/- as brought out by the comparative table of the amount awarded by the Tribunal and by this Court.

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	By the Tribunal [in Rs.]	By this Court [in Rs.]
Loss of expectation of life	10,000	Nil
Loss of estate/Loss of Dependency	14,52,072	36,88,932
Loss of Consortium	10,000	80,000
Loss of expectation of life	10,000	38,000
Transportation and funeral expenses	10,000
Total	14,82,072	38,06,932
Enhancement		23,24,860
The Claimant’s share in total _compensation _		25,37,955
The second respondent's share in total compensation		12,68,977
The second Respondent’s share with the deduction of Rs.50,000/- _received by her _		12,18,977

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HC-KAR

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In the light of the afore, the following:

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ORDER

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[a] The appeals stand disposed of granting to the claimant and the second respondent in the claim petition a total compensation of Rs.38,06,932/- with an enhancement in a sum of Rs.23,24,860/- at 6% per annum from the date of the petition to the date of deposit.

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