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2010 DIGILAW 1140 (KAR)

Managing Director, Ksrtc v. R. Poovazhi

2010-11-03

H.S KEMPANNA, N.K.PATIL

body2010
JUDGMENT N.K. PATIL, J.—These two appeals by the Corporation and the claimants are arising out of the same judgment and award dated 25.5.2005 passed in M.V.C. No. 793/2000 on the file of the Member, Motor Accident Claims Tribunal, Mayo Hall Unit, Bangalore, (SCCH-20), (hereinafter referred to as ‘Tribunal’ for short). 2. The Tribunal by its judgment and award, has awarded a sum of Rs. 10,02,000/- with interest at 6% p.a., from 6.11.2001 till its payment as against the claim made by the claimants for a sum of Rs. 51,54,466/- on account of the death of the deceased K. Kumaresan, in the road traffic accident. 3. In brief, the facts of the case are: The claimant No. 1 is the wife and claimant No. 2 is the minor daughter of the deceased Sri. K. Kumaresan and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the Corporation and others, on account of the death of the deceased in the road traffic accident, contending that occurred, at about 1.15 p.m., on 9.7.1999. The deceased was travelling on a motor cycle bearing No. KA 03 5670 as pillion rider and when he came near Whitefield-Lowry Memorial School, within the limits of K.R. Puram, the driver of the bus bearing Reg. No. KA 01 F 254 drove the same in a rash and negligent manner and dashed the same to hind portion of the motorcycle, due to which, deceased sustained grievous injuries and succumbed to the same. It is the further case of the claimants that deceased was aged about 33 years, working as Senior Area Manager in M/s. Kulkarni Power Tools Ltd., Bangalore, and drawing the salary of Rs. 1,91,351/- per annum, he was hale and healthy, bread earner of the family and due to his untimely death they have suffered both socially and economically. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after appreciating the oral and documentary evidence and other material available on file, after assessing the notional income of the deceased at Rs. 8,000/- per month, deducting 1/3rd towards his personal and living expenses and adopting multiplier of 12, has awarded a sum of Rs. 9,60,000/- towards loss of dependency and also awarded Rs. 42,000/- towards conventional heads and accordingly, allowed the claim petition in part, awarding the compensation of Rs. 8,000/- per month, deducting 1/3rd towards his personal and living expenses and adopting multiplier of 12, has awarded a sum of Rs. 9,60,000/- towards loss of dependency and also awarded Rs. 42,000/- towards conventional heads and accordingly, allowed the claim petition in part, awarding the compensation of Rs. 10,02,000/- under different heads with interest at 6% p.a., from 6.11.2001 till its payment. Being aggrieved by the said judgment and award, the Corporation has filed M.F.A. No. 8116/2005 contending that the Tribunal has erred in not fixing the contributory negligence against the driver of the motorcycle and that the quantum of compensation awarded by the Tribunal is on higher side and it requires to be reduced and the claimants have filed M.F.A. No. 7805/2005 contending that, the quantum of compensation awarded by the Tribunal is inadequate and it requires to be enhanced by modifying the impugned judgment and award passed by the Tribunal. 4. We have heard learned counsel appearing for the Corporation and learned counsel appearing for claimants at considerable length of time. 5. After careful perusal of the materials available on file, including the impugned judgment and award passed by the Tribunal, it emerges that the occurrence of the accident and the resultant death of the deceased are not in dispute. Further it emerges that the deceased was aged about 33 years, working as Senior Area Manager in M/s. Kulkarni Power Tools Limited, and drawing the salary of Rs. 1,91,351 per annum as per Ex. P9-salary certificate. As per the income tax slab for the Assessment Year 1998-1999 since the accident was occurred in the year 1999, Rs. 60,000/- is exempted from income tax. If the same is deducted out of Rs. 1,91,351/- the total comes to Rs. 1,31,351/- per annum. Out of which, if 10% (13,135/-) is deducted towards Income Tax, the income comes to Rs. 1,18,216/- to that if Rs. 60,000/- is added, the total income comes to Rs. 1,78,216 per annum. Out of which, if 1/3rd is deducted towards the personal and living expenses of the deceased, the net income comes to Rs. 1,18,811/-. The appropriate Multiplier applicable to the case in hand is ‘16’, in view of the law laid down by the Apex Court in Sarla Verma’s case reported in 2009 ACJ 1298 , instead of ‘15’ as adopted by the Tribunal since the deceased was aged about 33 years. 1,18,811/-. The appropriate Multiplier applicable to the case in hand is ‘16’, in view of the law laid down by the Apex Court in Sarla Verma’s case reported in 2009 ACJ 1298 , instead of ‘15’ as adopted by the Tribunal since the deceased was aged about 33 years. Therefore, we re-determine the loss of dependency at Rs. 19,00,976/- instead of Rs. 9,60,000/- awarded by the Tribunal and accordingly, it is awarded. 6. Having regard to the facts and circumstances of the case, we award a sum of Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 10,000/- towards loss of love and affection and Rs. 10,000/- towards transportation and funeral expenses. 7. So far as the specific ground taken by the learned counsel for the Corporation that, the Tribunal ought to have fixed the contributory negligence on the part of the driver of the motorcycle is concerned, there is no substance in the said submission made by the Corporation and the same is liable to be rejected at threshold, for the reason that the Tribunal after assessing the oral and documentary as per Ex. P1 to P6 coupled with the oral evidence of P.W. 2 has recorded the finding of fact holding that the charge-sheet has been filed against the driver of the bus belonging to the Corporation, as the said bus has dashed against the hind portion of the motorcycle bearing No. KA 03 5670 in which the deceased was a pillion rider. Further, it is significant to note that, in spite of giving sufficient opportunity the Corporation has failed to examine the driver of the offending vehicle or any other independent witnesses so as to disbelieve or reject the contents of the documentary evidence pertaining to Crime No. 136/1999 of Mahadevapura P.S. Therefore, the Tribunal is justified in fixing the 100% negligence on the part of the driver of the offending vehicle belonging to the Corporation. The said finding of fact recorded by the Tribunal is just and proper and therefore, it does not call for interference. 8. For the foregoing reasons, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs. 19,40,976/- and the break- up is as follows: Towards loss of dependency Rs. 19,00,976/- Towards loss of consortium Rs. 10,000/- Towards loss of estate Rs. 8. For the foregoing reasons, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs. 19,40,976/- and the break- up is as follows: Towards loss of dependency Rs. 19,00,976/- Towards loss of consortium Rs. 10,000/- Towards loss of estate Rs. 10,000/- Towards loss of love and affection Rs. 10,000/- Towards funeral and transportation expenses Rs. 10,000/- Total Rs. 19,40,976/- 9. Accordingly, the appeal filed by the Corporation is dismissed as devoid of merits and the appeal filed by the claimants is allowed in part and the impugned judgment and award passed by the Tribunal in M.V.C. No. 793/2000 is hereby modified, awarding compensation of Rs. 19,40,976/- instead of Rs. 10,02,000/-awarded by the Tribunal. The enhanced compensation comes to Rs. 9,38,976/- with interest at 6% p.a., from the date of petition till its realisation. 10. The Corporation is directed to deposit the enhanced compensation with interest, within four weeks from the date of receipt of a copy of this judgment and award. 11. Out of the enhanced compensation of Rs. 9,38,976/-, a sum of Rs. 5,00,000/- with accrued interest shall be invested in the Fixed Deposit in any Nationalised or Scheduled Bank, in the name of claimant No. 2, till she attains majority, with liberty to the claimant No. 1 to withdraw the interest accrued on it, periodically, for the welfare of claimant No. 1. 12. A sum of Rs. 3,00,000/- with accrued interest shall be invested in the Fixed Deposit in any Nationalised or Scheduled Bank, in the name of claimant No. 1 for a period of five years and renewable for another five years with liberty to her to withdraw the interest accrued on it, periodically. 13. The remaining sum of Rs. 1,38,976/- with proportionate interest shall be released in favour of claimant No. 1, immediately, on deposit by the Corporation. 14. The statutory deposit made by the Corporation shall be transmitted to the concerned Tribunal immediately. 15. Office is directed to draw the award, accordingly.