Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1397 (KAR)

K. S. R. T. C. v. D. V. Anitha

2013-12-13

N.K.PATIL, R.B.BUDIHAL

body2013
Judgment : 1. Though this appeal is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 2. This appeal by the Corporation is directed against the judgment and award dated 5th December 2012, passed in MVC No.68/2009, by the District Judge & Motor Accident Claims Tribunal, Kodagu, Madikeri, (for short, 'Tribunal') for reduction of compensation on the ground that, the compensation of Rs.18,50,000/- with 6% interest per annum, awarded in favour of the claimants as against their claim for Rs.5,00,000/-, is inadequate. 3. The facts in brief are that the respondent No.1 is the wife, respondent Nos.2 and 3 are the minor children and respondent No.4 is the mother of the deceased D.N. Vijayakumar, who died in the road traffic accident. The respondents 1 to 3 filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, the deceased met with a road traffic accident, on 27-11-2008, when the deceased was going to Bangalore from Murnaa in a KSRTC Bus bearing Registration No.KA-0i/F-8028 and on the way near Channapatna, the bus crossed the road divider and collided with a Lorry bearing Registration No.KA-01/AD-4458, coming from opposite direction and as a result, eleven persons died and one of them was Vijaya Kumar and several other persons were injured. 4. It is the case of the claimants that, the deceased was hale and healthy prior to the date of accident, which resulted in his death and that he was an agriculturist and had a garage, earning a sum of Rs.20,000/- per month was contributing substantial sum towards the family requirements and in view of his untimely death, the family is displaced and they are in great financial distress and have lost the only hope, social and financial security and aspiration in life and therefore, they have to be compensated reasonably. 5. On account of the death of the deceased, the claimants/respondents 1 to 3 herein filed the claim petition before the Tribunal, seeking compensation of a sum of Rs.18,50.000/- against the appellant/Corporation and others. 5. On account of the death of the deceased, the claimants/respondents 1 to 3 herein filed the claim petition before the Tribunal, seeking compensation of a sum of Rs.18,50.000/- against the appellant/Corporation and others. The Respondent No.4 herein, being the mother of the deceased, filed objections stating that she being the mother and class-1 legal heir of the deceased is also entitled to compensation and accordingly, she prayed for awarding a sum of Rs.5.00 lakhs as compensation and she was impleaded as third respondent before the Tribunal. The said claim petition had come up for consideration before the Tribunal on 5th December, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of X18,50,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit Being aggrieved by the quantum of compensation awarded by the Tribunal, the Corporation is in appeal before this Court, seeking reduction of compensation. 6. We have gone through the grounds urged in the memorandum of appeal carefully, perused the impugned judgment and award passed by Tribunal and heard the learned counsel for Corporation as well as the counsel for claimants. 7. Shri.K. Nagaraj, learned counsel appearing for appellant/Corporation vehemently submitted that, the Tribunal has committed an error muchless material irregularity, resulting in serious miscarriage of justice in assessing the income of the deceased at Rs.15,000/- per month, without any basis or credible documentary evidence. The reasoning given by Tribunal at paragraph Nos.20 to 22 for assessing the said monthly income of the deceased is opposed to law and contrary to the material on record and disproportionate to the source of income of the deceased. To substantiate the said submission, he is quick to point out and submit that the deceased was aged about 38 years and was an agriculturist and also running an Automobiles Shop under the name and style of Viju Service Station and claims to be a PWD contractor and also owning agricultural lands. But, to substantiate the same, the claimants have not produced any credible documentary evidence and so far as agricultural lands stated to have been possessed by deceased is concerned, the said land continues to exist in the names of the LRs of deceased and can be looked after by claimant No.1. But, to substantiate the same, the claimants have not produced any credible documentary evidence and so far as agricultural lands stated to have been possessed by deceased is concerned, the said land continues to exist in the names of the LRs of deceased and can be looked after by claimant No.1. Further, he is quick to point out and submit that to prove that the deceased was a PWD contract, the claimants have not also produced any licence issued by Government or the nature of work taken up etc. Therefore, the monthly income of Rs.15,000/- assessed by Tribunal is excessive, exorbitant and on the higher side and at best, his income may be re-assessed between Rs.8,000/- to Rs.10,000/- per month and not more than that. Accordingly, reasonable compensation may be awarded by assessing the reasonable monthly income of the deceased and the judgment and award passed by Tribunal be modified. 8. As against this, Shri.S.R. Raviprakash, learned counsel appearing for claimants/respondents 1 to 3 inter alia submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation and hence, interference in the same is not called for. Regarding the monthly income of Rs.15,000/- assessed by Tribunal, he vehemently submitted that the Tribunal has specifically recorded a finding, after appreciating the oral and documentary evidence at paragraphs 20 to 23 of its judgment that it appears reasonable to work out the income of the deceased at Rs.15,000/- per month. To further substantiate the said submission, he submitted that the deceased -was an agriculturist cum PWD contractor and also running an Automobile Shop in the name and style of Viju Service Station and to substantiate the same, the claimants have produced Ex.P29, pamphlet, which shows that he was a proprietor of the said automobiles. He further submitted that the deceased was a very committed and upright per sot! and had a multifaceted personality carrying on all the aforesaid professions with the help of assistants. Therefore, he submitted that the monthly income of Rs.15.000/- assessed by Tribunal is just and proper and does not call for interference and the compensation awarded by Tribunal towards loss of dependency and conventional heads does not warrant interference. 9. and had a multifaceted personality carrying on all the aforesaid professions with the help of assistants. Therefore, he submitted that the monthly income of Rs.15.000/- assessed by Tribunal is just and proper and does not call for interference and the compensation awarded by Tribunal towards loss of dependency and conventional heads does not warrant interference. 9. After considering the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the only point that arise for our consideration in this appeal is: Whether the quantum of compensation awarded is excessive and liable to be reduced? After careful perusal of the impugned judgment and award passed by Tribunal, it can be seen that, the occurrence of accident and the resultant death of the deceased are not in dispute. It is further not disputed that the claimants are none other than the wife, two minor children and mother of deceased. The wife and two minor children have filed the claim petition under Section 166 of the Motor Vehicles Act. Subsequently, the mother of the deceased/respondent NO. 4 herein filed objections, claiming compensation of a sum of Rs.5.00 lakhs, on the ground that she is the mother of deceased and class I legal heir. 10. To substantiate the claim made in the claim petition, the wife of the deceased, claimant No. 1 has got examined herself as PW1 and also got examined PW2, one Vijayakumar. In the examination in chief, the wife of the deceased has stated that her husband was an agriculturist, contractor and also running an Automobile shop. But, in the cross examination, she has stated that she is not aware as to the nature of work taken up by her deceased husband and she is even unable to explain whether he had the licence to do the PWD contract work. But, in the cross examination, she has stated that she is not aware as to the nature of work taken up by her deceased husband and she is even unable to explain whether he had the licence to do the PWD contract work. Further, so far as the names found in the record of rights, she is not aware of the same and she has not stated positively regarding the source of income of the deceased nor has she produced any autiienticated document such as statement of accounts in the pass book of the Bank showing the transactions by the deceased, expenses incurred by him to carry out the contract work, and how many employees/assistants were working under him in the Automobile shop and what was the salary being paid to them, etc. Regarding agricultural land owned by deceased, she is not in a position to depose as to the nature of the said land and source of income. She has failed to make out a case to establish that the deceased was earning a sum of Rs.20,000/-per month as claimed by the claimants. 11. It is significant to note after careful perusal of the Ex.P28, contractor's pass book, Ex.P29, pamphlet, Ex.P33 to P48, RTC extracts that, except these documents, no credible documents are forthcoming to establish that the deceased was carrying on various other type of works such as contract work by PWD etc. Except Ex. P29-pamphlet, they have not produced any document nor examined any body to show as to the number of employees working under him in the PWD contract work and also in Automobile Service Station. So far as record of rights is concerned, there is no dispute that the said land stands in the names of the members of the joint family and continues to exist and the claimants can derive benefit out of it by getting the same cultivated with the assistance of labour and there is no loss of income from agriculture. All these aspects of the matter have not been looked into nor considered nor appreciated and without any basis and -without proper application of mind, the Tribunal has assessed the monthly income of the deceased at Rs. 15,000/-, disproportionate to the source of income, which is contrary to the material on file. 12. All these aspects of the matter have not been looked into nor considered nor appreciated and without any basis and -without proper application of mind, the Tribunal has assessed the monthly income of the deceased at Rs. 15,000/-, disproportionate to the source of income, which is contrary to the material on file. 12. Having regard to the totality of the case, age, number of avocations, year of accident and also the number of dependents, the fact that the minor children were aged 9 years and 5 years respectively, at the time of accident, we can safely re-assess the monthly income of the deceased, at best at Rs.10,000/-, to meet the ends of justice and to safeguard the interest of both parties. 13 Further, it can be seen that the Tribunal has further erred in deducting 1 / 3rd towards the personal expenses of the deceased when in fact, it ought to have deducted l/4th towards the personal and living expenses of the deceased as per the decision of the Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ), considering the number of dependents being four, viz. wife, two minor children and mother of deceased. Therefore, as the dependents are four in number, l/4lh has to be deducted towards the personal and living expenses of the deceased. Accordingly if l/4th (i.e. Rs.2,500/-) is deducted from Rs.10,000/- towards his personal and living expenses, the net income would be Rs.7,500/- per month. Since the deceased was aged about 38 years, the proper multiplier applicable is 15' as per the decision of the Hon'ble Apex Court Sarla Verma's case J2009 AC J 1298) as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs.13,50,000/- (i.e. Rs.7,500/- x 12 x'15') as against Rs.18,00,000/- awarded by Tribunal. 14. However, the Tribunal is highly justified in awarding a sum of Rs.50,000/- towards conventional heads, such as loss of estate, loss of consortium, loss of love and affection and transportation and funeral expenses and the same is as per the ratio of law laid down in Sarla Verma's case (supra). 15. Thus, the total compensation would work out to Rs.14,00,000/- as against Rs.18,50,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. There would be reduction of compensation by f4,50,000/-. 16. 15. Thus, the total compensation would work out to Rs.14,00,000/- as against Rs.18,50,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. There would be reduction of compensation by f4,50,000/-. 16. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Corporation is allowed in part. The impugned judgment and award dated 5th December 2012, passed in MVC Mo.68/2009, by the District Judge & Motor Accident Claims Tribunal, Kodagu, Madikeri, is hereby modified, reducing the total compensation from <18,50,000/- awarded by Tribunal to Rs.14,00,000/- (reduction being Rs.4,50,000/-), with interest at 6% per annum, from the date of petition till the date of realization. The Corporation is directed to deposit the remaining compensation, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award, after deducting the amount if any already deposited by them. The apportionment of compensation ordered by Tribunal gets proportionately reduced to the extent of reduction of compensation made by this Court. The statutory amount in deposit by the Corporation is directed to be transmitted to the jurisdictional Tribunal, forthwith. Office to draw award, accordingly.