Mubeena Taj Vs the Managing Director

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.02.2017 PASSED IN MVC NO.1189/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 4436/2017

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BETWEEN:

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THE MANAGING DIRECTOR NEKSRTC, BELLARY DIVISION, OWNER OF BUS BEARING REG. NO. KA-34/F-1273, SIRIGUPPA ROAD, BELLARY-583 101.

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THE CHAIRMAN INTERNAL SECURITY FUND KARNATAKA STATE ROAD, TRANSPORT CORPORATION, K.H. ROAD, BANGALORE-560 027.

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THE DEPOT MANAGER CHITRADURGA DEPOT, K.S.R.T.C., OPP. UNION BANK OF INDIA, CHITRADURGA-577 501.

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ALL THE APPELLANTS REPRESENTED BY ITS CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICES, SARIGE SADANA KALABURGI, PIN: 585 101.

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...APPELLANTS

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(BY SRI. F S DABALI, ADVOCATE)

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AND:

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MUBEENA TAJ W/O. LATE AKBAR ALI, AGED ABOUT 32 YEARS,

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MOHAMMED SUFIYAN S/O. LATE AKBAR ALI, AGED ABOUT 15 YEARS,

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MOHAMMED USMAN S/O. LATE AKBAR ALI, AGED ABOUT 11 YEARS,

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RESPONDENT NOS.2 AND 3 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER, MUBEENA TAJ, RESPONDENT NO.1

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SHAHAZAD UNNISSA W/O LATE ANWAR BASHA, AGED ABOUT 62 YEARS,

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RESPONDENT NOS.1 TO 4 ARE R/O NEAR POWDIYAMMA AND GANESHA TEMPLE, VEGETABLE MARKET ROAD, HIRIYUR, DISTRICT: CHITRADURGA, PIN: 572 143.

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H. KOUSAR W/O. LATE AKBAR ALI, AGED ABOUT 28 YEARS, R/O NEAR JAMIYA MASJID, HIRIYUR, DISTRICT: CHITRADURGA, PIN: 572 143.

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...RESPONDENTS

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(BY SRI RAGHU R, ADVOCATE FOR R1, R2 & R5 R3 & R4 ARE MINORS REPRESENTED BY R1)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.02.2017 PASSED IN MVC NO.1189/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, JMFC, HIRIYUR, AWARDING COMPENSATION OF RS.12,55,400/-WITH INTEREST AT 7.5% P.A. FROM THE DATE OF FILING OF PETITION TILL ITS ENTIRE REALIZATION AND ETC.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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These appeals arise out of award in MVC No.1189/2015

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passed by the Senior Civil Judge and Addl. MACT., Hiriyur. Claimant No.1 is the 1^st wife and claimant No.5 is the 2^nd wife of deceased Akbar Ali. Claimant Nos.2 and 3 are the children

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of claimant No.1 and deceased Akbar Ali. Claimant No.4 is the mother of deceased Akbar Ali.

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For the sake of convenience, the parties will be referred to as per their ranking before the Tribunal

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On 18.08.2015 at 6.15 p.m. when Akbar Ali was traveling in KSRTC bus bearing registration No.KA-34-F-1273 near BSNL Tower at Molakalmuru, the said bus met with an accident and Akbar Ali and other passengers sustained injuries. Akbar Ali was shifted to VIMS Hospital, Bellary and he succumbed to the injuries on 21.08.2015. Respondent No.1 is the owner, respondent No.2 is the insurer and respondent No.3 is Manager of the Depot to which offending bus belonged to .

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The claimants filed MVC No.1189/2015 against the respondents contending that the accident and death of Akbar Ali occurred due to the actionable negligence on the part of the driver of the KSRTC bus bearing registration No.KA-34-F-1273. They further contended that Akbar Ali was working as a Mason, earning `20,000/- per month and they were all dependent on his income. They further contended that due to the death of Akbar Ali, they have suffered pecuniary and non-pecuniary

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damages to the tune of `30 lakhs and respondents are liable to compensate the same.

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Respondent Nos.1 and 2 contested the petition denying the actionable negligence on the part of the driver of the bus. They contended that at the scene of accident, there was a curve and a lorry was coming from the opposite side. At the same time, a car behind the said lorry tried to overtake the lorry and came on the wrong side. Therefore, to avoid the accident, bus driver had to apply the brake, which resulted in the accident. Therefore, the respondents are not responsible for the accident and consequential death of deceased Akbar Ali and not liable to pay the damages claimed before the Tribunal.

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On behalf of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to P9 were marked. On behalf of the respondents, the driver of the bus was examined as RW.1 and no documents were produced.

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The Tribunal, on hearing the parties by the impugned judgment and award, held that the accident and death of Akbar Ali occurred due to the actionable negligence on the part of the driver of the KSRTC bus. The Tribunal

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considered the income of the deceased notionally at 5,500/-, added 50% to the same by way of future prospects, deducted 1/4th from the same for his personal expenses, applied ‘16’ multiplier and awarded compensation of 11,90,400/- on the head of loss of dependency.

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The Tribunal, in all, awarded compensation of

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`12,55,400/- on different heads as follows:

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1. Loss of future income	11,90,400.00
2. Towards Consortium	20,000.00
3. Medical Expenses	15,000.00
4. Loss of estate	20,000.00
5. Funeral Expenses	10,000.00
Total	12,55,400.00

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The Tribunal awarded interest @ 7.5% p.a. on the

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compensation, payable by respondent Nos.1 to 3.

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9. Questioning the adequacy of compensation awarded

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to them, the claimants have preferred MFA No.6762/2017. Questioning the rate of interest and the quantum of compensation, the respondents in the claim petition have filed MFA No.4436/2017.

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Sri Raghu R,learned counsel for the claimants submits that considering the fact that the deceased was a Mason, aged 35 years and the demand for the said work, the notional income considered by the Tribunal is on the lower side. He submits that the compensation awarded on the other heads is also on the lower side and he justifies the rate of interest awarded by the Tribunal.

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Sri F.S. Dabali, learned counsel for the respondent - KSRTC submits, the future prospects considered by the Tribunal is on the higher side. Interest awarded is also on the higher side. He submits that compensation on the head of consortium cannot be granted to more than one spouse. He seeks to allow the appeal of KSRTC.

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Considering the submissions of both side and material on record, the question that arises for our consideration is;

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“Whether the compensation awarded by the Tribunal is just one ?”

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ANALYSIS

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The parties have not disputed that, on 18.08.2015 at 6.15 p.m. when Akbar Ali was traveling in KSRTC bus bearing No.KA-34-F-1273, the said bus met with the accident which lead to the death of Akbar Ali after two days. Though KSRTC set up a story that accident occurred due to another car driver overtaking the lorry which was coming from the opposite side, and to save the said car the driver of the bus had to apply the brake etc., the said defence was not proved. No complaint was filed by RW.1 against the car or lorry driver. Further, the police on investigation filed the charge sheet against RW.1 for culpable rashness and negligence. That finding is not challenged by KSRTC.

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So far as quantum, the parties have not disputed that the deceased was aged 35 years. Though they claimed that he was working as Mason and earning 20,000/- per month, no evidence was adduced to prove the actual income. The Tribunal has considered his notional income at 5,500/-. The accident has taken place in the year 2015. Considering the age and occupation of the deceased, prevailing wage rates and cost of living during the relevant time, the notional income

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taken by the Tribunal is on the lower side, reasonably the same could be considered at 9,000/- per month. As the deceased was aged 35 years and was self employed, in the light of the judgment of the Hon’ble Supreme Court in the case of **_National Insurance Company Ltd. vs. Pranay Sethi & Ors._****_1_** **_,_** the Tribunal should have awarded 40% of the income as future prospects, not 50%. Having regard to the number of claimants in the matter, 1/4th has to be deducted for his personal expenses out of his income and the applicable multiplier is ‘16’. Therefore, the compensation payable on the head of loss of dependency would be 9,000 + 3,600/-( 40%) = 12,600/- x ¾ x 12 x 16 = `18,14,400/-.

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The medical expenses of 15,000/- awarded by the Tribunal is based on the evidence adduced. The same needs to be retained. Hon’ble Supreme Court in the case of **_Pranay Sethi & Ors.,_** referred to supra, has held that on the conventional heads of loss of estate and funeral expenses, the compensation of 15,000/- + `15,000/- has to be awarded with escalation at 10%. Similarly, in the judgment of Pranay Sethi, referred to supra, and Magma General Insurance

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1 AIR 2017 SC 5157

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Company Ltd. v. Nanu Ram² , it is held that the wife, children and parents are entitled to compensation of 40,000/- each with escalation at 10% on the head of consortium. In the present case, deceased claimed to have married claimant Nos.1 and 5 both. The judgment of **_Pranay Sethi,_** referred to supra, apparently does not contemplate granting multiple 40,000/to spouses. Therefore, compensation on the head of consortium is awarded only one spouse, children and mother.

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For the aforesaid reasons, just compensation

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payable is as follows:

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Sl. No.	Heads	Amount awarded by this Court (`)
1.	Loss of dependency	18,14,400/-
2.	Loss of consortium	1,76,000/-
3.	Medical expenses	15,000/-
4.	Loss of estate	16,500/-
	Funeral expenses and transportation of dead body	16,500/-
	Total	20,38,400/-

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2 2018 (18) SCC 130

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The Tribunal for awarding interest @ 7.5% p.a., has not assigned any acceptable reasons. The respondents are also a public sector statutory organization, therefore, it would be just to award interest @ 6% p.a., on the compensation for the aforesaid reasons.

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Hence, the claimants are entitled for compensation of 20,38,400/- with interest @ 6% per annum. PW.1 in her cross examination admitted that she has received 10,000/- as interim compensation from the respondent-KSRTC. Hence, the claimants are entitled to compensation of `20,28,400/-. Both appeals deserve to be allowed in part. Hence, the following:

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ORDER

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MFA No.6762/2017 and MFA No.4436/2017 are allowed in part.

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The award in MVC No.1189/2015 on the file of Senior Civil Judge and Addl. MACT., Hiriyur is modified as follows:

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i) The claimants are entitled to compensation of `20,28,400/- with interest thereon at 6% per annum from the date of petition till its realization;

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ii) Respondent Nos.1 to 3 are jointly and severally liable to pay the said compensation;

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iii) The compensation with accrued interest shall be deposited before the Tribunal on adjusting the amount, already deposited if any, within six weeks from the date of receipt of copy of this order;

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iv) The order of the Tribunal with regard to the apportionment and investment is maintained;

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v) The amount in deposit, if any, and the Trial Court Records shall be transmitted to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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BS

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List No.: 1 Sl No.: 31

Mubeena Taj v. the Managing Director

Case brief

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Mubeena Taj v. the Managing Director

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