Smt. Channabasamma Vs Vittal Thurutanavar

VITTAL THURUTANAVAR S/O LATE PHIROJI, AGED ABOUT 37 YEARS, (BADGE NO.355, GUNDLUPET DEPOT), AND SASUVEHALLI, NAVALAGUNDA TALUK, DHARWAD DISTRICT-582 208.

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THE MANAGING DIRECTOR K.S.R.T.C. GUNDLUPET DEPOT, CHAMARAJANAGAR DIVISION, CHAMARAJANAGAR DISTRICT-571 123.

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…RESPONDENTS

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(BY SRI HAREESH BHANDARY T., ADVOCATE, FOR R-2 & VIDE ORDER DATED 4.9.2023, NOTICE TO R-1 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 6.8.2015 PASSED IN M.V.C. NO.394 OF 2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND C.J.M. AND MEMBER OF M.A.C.T., CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR ADMISSION, 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 VENKATESH NAIK T

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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This appeal is filed by the claimants aggrieved by the judgment and award dated 6-8-2015 passed in M.V.C. No.394 of 2013 on the file of the Senior Civil Judge and Chief Judicial Magistrate and Member of Motor Accidents Claims Tribunal, Chamarajanagar, whereby, the Tribunal awarded a sum of Rs.11,04,000/- as compensation with interest at the rate of 6% per annum from the date of petition till the date of realisation by saddling the liability of 20% on the deceased and 80% on the Karnataka State Road Transport Corporation (for short, 'K.S.R.T.C.').

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For the sake of convenience, the parties herein shall be referred to in terms of their status before the Tribunal.

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Brief facts of the case are that on 18-9-2013 at 6:15 p.m., Sri Puttamadaiah (hereinafter referred to as 'deceased') was standing in the bus stop for arrival of the bus, at that time, the driver of the K.S.R.T.C bus, bearing Registration No.KA-09 F-4269, drove it in a rash and negligent manner, came from opposite direction and hit Puttamadaiah

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and hence, he sustained grievous injuries. Immediately, he was shifted to the Government Hospital, Gundlupet, and later, he was shifted to K.R. Hospital, Mysuru, for further treatment, but he succumbed to the injuries. Due to his death, wife, children and mother lost their dependency and hence, claimed compensation on various heads.

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Heard Sri Shantharaj K., learned counsel for the appellants-claimants, Sri Hareesh Bhandary T., learned counsel for respondent No.2-Insurance Company and perused the judgment and award of the Tribunal.

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Learned counsel for the appellants-claimants has contended that the charge-sheet was filed against the driver of the bus and there was no evidence led by the Insurance Company to prove the negligence on the part of the deceased. However, the Tribunal has erred by fastening 20% negligence on the deceased, who was a pedestrian and waiting for the bus. Further, the Tribunal has not considered the future prospects and compensation awarded under other heads is on lower side. Hence, he prays for allowing the appeal.

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Per contra , the learned counsel for respondent No.2Insurance Company, supports the impugned judgment and award of the Tribunal and submits that considering the oral and documentary evidence on record, the Tribunal awarded just and reasonable compensation under each head, which does not call for interference at the hands of this Court. Further, the Tribunal, on appreciation of the entire material available on record, has rightly saddled 20% negligence on the deceased. Thus, he prays for dismissal of the appeal.

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Having heard the learned counsel for the parties and perusal of the appeal papers including the original record of the Tribunal, the points that arise for our consideration in this appeal are:

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I. Whether the Tribunal is justified in saddling the liability to an extent of 20% on the part of the deceased and 80% on the K.S.R.T.C.?

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II. Whether the quantum of compensation awarded by

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the Tribunal is just and reasonable or does it call for

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enhancement or reduction?”

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In so far as contributory negligence is concerned, from perusal of oral evidence of PWs.1 and 2 and other documentary evidence, they clearly demonstrates that the charge-sheet has been filed against the driver of the K.S.R.T.C. bus and not against the deceased. As per Column 10 of an F.I.R. and Column No.17 of the charge-sheet, the Investigating Officer was of the opinion that the driver of the K.S.R.T.C. bus came in a rash and negligent manner and dashed against the deceased when he was standing on the left side of the road. The contents of the charge-sheet are not disputed by the K.S.R.T.C. From perusal of Ex.P4-spot panchanama, it appears that accident in question occurred on the left side of the road and there was dent on the front left side headlight of the bus. Thus, it establishes that the driver of the K.S.R.T.C. bus came in rash and negligent manner and dashed against the deceased. There is no material to suggest the deceased was negligent. Hence, the finding of the Tribunal that the deceased

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was also negligent in causing of the accident to the extent of 20% is set aside and it is held that the accident wholly occurred on account of rash and negligent driving of the K.S.R.T.C. bus by its driver.

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In so far as quantum of compensation is concerned, the deceased was working as a Head Cook in Social Welfare Department and was earning Rs.10,085/- per month. This aspect is not disputed by the K.S.R.T.C. As per the dictum of the Hon’ble Apex Court in the case of National Insurance

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Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 , 30% of the income must be added towards future prospects, which comes to Rs.3,026/- (10,085 X 30%). Thus, the total salary would be Rs.13,111/- per month (10,085 + 3,026). Accident is of the year 2013. The deceased was aged 45 years as on the date of the accident. The deceased is left behind a mother, a wife and three children, as such, 1/4^th of income of the deceased has to be deducted towards his personal expenses, i.e. Rs.1,57,332/- (13,111 X 12) X 1/4 = Rs.39,333/-. After deduction, the amount to be contributed to his family would be Rs.1,17,999/- (1,56,780/-

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minus 39,195/-). As per the decision of the Hon’ble Apex Court

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in the case of Smt. Sarla Verma and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , multiplier applicable to the age of the deceased is '14'. Thus, the compensation payable under the head of ‘loss of dependency’ would be Rs.16,51,986/(1,17,999 X 14) as against Rs.12,60,000/- awarded towards 'loss of estate'.

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In the case of Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Others reported in (2018) 18 SCC 130 , the Hon’ble Apex Court by referring to the decision of the Constitution Bench in Pranay Sethi's case, stated supra, has discussed about granting the compensation under the head of ‘loss of consortium’ and has also issued guidelines for grant of ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’. The claimants are wife, mother and three children of the deceased. In view of the ratio laid down by the Hon’ble Apex Court in the aforesaid decision, the claimants are entitled to compensation of Rs.2,00,000/(Rs.40,000/- each) towards ‘loss of consortium’ as against

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Rs.50,000/- and Rs.40,000/- towards 'loss of love and

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affection' awarded by the Tribunal.

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Further, Rs.15,000/- towards 'funeral expenses' and

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Rs.15,000/- towards 'loss of estate' are awarded as against Rs.5,000/- towards 'transportation charges' and Rs.25,000/towards 'cremation and obsequies'.

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Thus, the claimants are entitled for the following

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compensation:

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HEADS	Rs.
Loss of dependency	16,51,986.00
Loss of consortium	2,00,000.00
Funeral expenses	15,000.00
Loss of estate	15,000.00
TOTAL	18,81,986.00
Less: Compensation awarded by the Tribunal(100%)	13,80,000.00
ENHANCED COMPENSATION	5,01,986.00

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In the result, we pass the following

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O R D E R

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i. The appeal is allowed-in-part .

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ii. The finding of the Tribunal that the deceased was also negligent in causing of the accident to an extent of 20% is set aside.

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iii. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. The appellant/claimant is entitled for a total compensation of Rs.18,81,986/- as against Rs.13,80,000/- awarded by the Tribunal with interest at the rate of 6% per annum on the enhanced compensation of Rs.5,01,986/- from the date of filing of the claim petition till the date of its realisation, excluding interest for the delayed period of 177 days in filing the appeal, and from 18-6-2018 till 4-9-2023 during which period, the appeal was dismissed for nonprosecution.

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iv. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount together with interest within a period of six weeks' from the date of receipt of a copy of this judgment.

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