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2017 DIGILAW 731 (KAR)

Kavitha v. Managing Director, KSRTC, Bangalore

2017-04-11

H.B.PRABHAKARA SASTRY, VINEET KOTHARI

body2017
JUDGMENT : H.B. PRABHAKARA SASTRY, J. 1. These appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988 challenging the judgment and award passed by the Motor Vehicle Accident Claims Tribunal-IX, Mudhol, dated 30.05.2011 in MVC No. 443/2007. 2. The appellant in MFA No. 21942/2013 is the respondent-Corporation before the Motor Vehicle Accident Claims Tribunal (for short Tribunal) and has prayed for setting aside the impugned judgment and award whereas the appellants in MFA No. 100720/2014 are the claimants before the Tribunal below have prayed for enhancement of compensation awarded under the impugned judgment. 3. The appellant-corporation in MFA No. 21942/2013 in its memorandum of appeal has taken contention that the Tribunal below has erred in not considering that the accident was one of the contributory negligence. The compensation awarded by the Tribunal is a huge amount and that the Tribunal ought to have deducted 1/3rd of the income of the deceased towards his personal expenses instead of 1/4th. Stating that awarding compensation under other heads also deserves to be set aside it has prayed for allowing the appeal by setting aside the impugned judgment. 4. The appellants-claimants in MFA No. 100720/2014 in their memorandum of appeal have stated that though by pleading and evidence it was brought to the notice of the Tribunal that the income of the deceased was Rs. 13,000/- per month, it has erred in confining the same to Rs. 6,000/- per month. They have further stated that the Tribunal has failed to award compensation under the head of future loss of prospects and further stated that the compensation awarded under other heads are also very meager. They have prayed for enhancement of compensation as prayed in their claim petition before the Tribunal below. 5. Though notice was served on the respondent-Corporation in the Tribunal below, it remained unrepresented, as such, it was placed ex-parte in the Tribunal below. The lower court records are called for and the same is placed before this Court. 6. Heard arguments from both sides. Perused the memorandum of appeals, impugned judgment and award and the entire records placed before us. 7. In the light of the above, the following points arise for our consideration: "(i) Whether the appellant-corporation has made out grounds to allow the MFA No. 21942/2013? (ii) Whether the appellants-claimants have made out grounds to allow the MFA No. 100720/2014?" 8. Perused the memorandum of appeals, impugned judgment and award and the entire records placed before us. 7. In the light of the above, the following points arise for our consideration: "(i) Whether the appellant-corporation has made out grounds to allow the MFA No. 21942/2013? (ii) Whether the appellants-claimants have made out grounds to allow the MFA No. 100720/2014?" 8. Since these points are interrelated to each other, in order to avoid repetition of analysis of facts, both the points are taken up together for analysis. For the sake of convenience, the parties would be referred with their rankings they were holding in the Tribunal below. 9. The main contention of the appellant-corporation in MFA No. 21942/2013, who was the respondent in the Tribunal below is that the Tribunal has failed to take note of the contributory negligence on the part of the cyclist. 10. The summary of the case of the claimants is that on 11.05.2007 at about 11.30 a.m. while the deceased Nandakumar was proceeding on a Bicycle in front of Bandiwaddar Petrol Bunk, at that time, a KSRTC bus bearing registration No. KA-29/F-1235 being driven by its driver in a rash and negligent manner dashed to the Bicycle of the deceased. Due to the said accident, the rider Nandakumar sustained grievous injuries and died on the spot. The Tribunal below, on the said alleged fact, framed a point to know whether the claimants proved that the alleged accident was due to rash and negligent driving of the bus by its driver. Appreciating the materials placed before it including the evidence of the claimant No. 1 and the documents produced, it answered the said point in the affirmative. 11. It is to be noticed that the appellant-corporation in MFA No. 21942/2013 was the sole respondent in the Tribunal below being the owner-cum-insurer of the alleged offending bus. The said respondent-corporation was duly served with notice. In spite of service of notice, it did not choose to appear before the Tribunal and contest the matter. As such, it was placed ex-parte and the matter was proceeded. 12. On behalf of the claimants in the Tribunal below, claimant No. 1-Kavita was examined as PW-1 and she got marked documents at Exs.P1 to P8 which included FIR at Exhibit P1, Motor vehicle Inspectors report at Exhibit P5 and Charge sheet at Exhibit P6. As such, it was placed ex-parte and the matter was proceeded. 12. On behalf of the claimants in the Tribunal below, claimant No. 1-Kavita was examined as PW-1 and she got marked documents at Exs.P1 to P8 which included FIR at Exhibit P1, Motor vehicle Inspectors report at Exhibit P5 and Charge sheet at Exhibit P6. Her evidence to the effect that on the alleged date of accident her husband i.e., deceased Nandakumar was proceeding on a bicycle and the KSRTC bus bearing Registration No. KA-29F-1235, owned by the respondent- Corporation, came and dashed to the cycle rider, due to which, the said rider sustained injuries and died on the spot has remained undisputed. Her further evidence that the KSRTC bus was being driven by its driver in a rash and negligent manner at the time of accident and it was solely due to the rash and negligent driving of the bus by its driver the accident occurred also has not been denied or disputed from the respondent-Corporation side. The evidence of PW1 is further corroborated by Exhibit P1-FIR, Exhibit P5-Motor Vehicle Inspector's Report and also Exhibit P6-the charge sheet. Exhibit P6 discloses that the driver of the bus was in a rash and negligent driving. None of these documents anywhere whispers about the alleged contributory negligence. That being the case, the uncontroverted evidence of PW-1 corroborated by the above mentioned documents establishes that the road traffic accident occurred solely due to the rash and negligent driving of KSRTC bus by its driver. The question of alleged contributory negligence being a question of fact in the instant case, the respondent-corporation without contesting the matter in the Tribunal below and in the absence of supporting documents in its favour, in this appeal stage failed to establish the alleged contributory negligence. Therefore, the primary contention of the appellant-corporation in MFA No. 21942/2013 and the arguments of its learned counsel on this point is not acceptable. 13. In the light of the above observation, the other question that remains to be considered is the resonableness of the quantum of compensation awarded under different heads. According to the claimants, the compensation awarded is on the lower side, as such, it is not reasonable. On the contrary, the contention of the respondent-corporation is that the compensation awarded is excessive. 14. According to the claimants, the compensation awarded is on the lower side, as such, it is not reasonable. On the contrary, the contention of the respondent-corporation is that the compensation awarded is excessive. 14. The Tribunal below in the impugned Judgment has awarded the compensation on the following heads and the manner:- Towards loss of dependency 7,02,000/- Towards loss of consortium to claimant No. 1 15,000/- Towards loss of love and affection 15,000/- Towards funeral and shifting of the body 10,000/- Towards loss of estate 5,000/- Total 7,47,000/- 15. According to the claimants, the deceased Nandakumar, prior to the accident was earning as Pigmy Agent in Syndicate Bank and earning Rs. 13,000/- per month. PW-1 in her evidence has reiterated the same and in support of her statement she has also produced a bank statement at Exhibit.P7, which discloses that the deceased had received a commission of Rs. 10,767/-, Rs. 9,970/-, Rs. 12,803 and Rs. 11,290/- for the months of January, February, March and April, 2007. The Tribunal below has arrived at a conclusion holding that the income of the deceased should be taken at Rs. 6,000/- per month. Even if it is admitted that the deceased was working as Pigmy Agent in Syndicate Bank, still it is not in dispute that he was not a salaried employee in the said Bank and he was only an Agent on behalf of the Bank who was collecting small savings amount from the customers and depositing it in their respective accounts in the Bank on a regular basis, may be daily or weekly, for which services he was getting some commission at the prescribed rate from the Bank. Therefore, it is clear that his income was variable one and not fixed. Depending upon his performance during a particular month, amount of commission used to be decided. As such, any of his income for any particular month cannot be treated as his regular income for every month. There is all possibility of the deceased as Pigmy Agent getting very small amount as commission when his pigmy collection goes down. Thus, in order to arrive at some average, the claimants could have produced the statement of income of the deceased for the immediately preceding two or three financial years. If the deceased were to be an income tax assessee the claimants could have produced the income tax return details also. Thus, in order to arrive at some average, the claimants could have produced the statement of income of the deceased for the immediately preceding two or three financial years. If the deceased were to be an income tax assessee the claimants could have produced the income tax return details also. In the absence of any of these helpful materials being placed before the Tribunal by the claimants, the Tribunal was right in not accepting the income of the deceased at Rs. 13,000/- per month. In the absence of any clear proof of income of a person, the Co-ordinate Benches of this Court in several matters are taking the income of an injured/deceased for the year 2007 at Rs. 4,000/- per month. However, considering the nature of the work of the deceased as a Pigmy Agent and quantum four months' commission received by him, the Tribunal has arrived at a conclusion that the income of the deceased should be taken at Rs. 6,000/- per month. We do not find any infirmity in it. As such, we do not want to enhance the said income of the deceased by any amount. 16. When the income of the deceased is taken at Rs. 6,000/- per month, his contribution towards his family to be considered after deducting his personal expenses. The Tribunal below has deducted 1/4th of his income towards his personal expenses. Though the learned counsel for the respondent-Corporation submitted that the said deduction should have been 1/3rd but we do not find any reason to increase the percentage of deduction towards personal expenses. Considering the dependants who are shown to be four in number, we hold that deduction 1/4th of the income of the deceased towards his personal expenses is appropriate. After deducting the said personal expenses of the deceased, his contribution towards his family per annum would come to Rs. 54,000/-. Considering the age of the deceased, who is said to be 46 years which has remained undisputed, the multiplier applicable is 13. As such, the compensation towards 'loss of dependency' would come to Rs. 54,000 x 13 = 7,02,000/-. 17. Citing a judgment of Hon'ble Apex Court reported in (2013) 9 SCC 54 in the case of Rajesh and Others vs. Rajbir Singh, the claimants have stated that the Tribunal below ought to have awarded compensation towards loss of future prospects. As such, the compensation towards 'loss of dependency' would come to Rs. 54,000 x 13 = 7,02,000/-. 17. Citing a judgment of Hon'ble Apex Court reported in (2013) 9 SCC 54 in the case of Rajesh and Others vs. Rajbir Singh, the claimants have stated that the Tribunal below ought to have awarded compensation towards loss of future prospects. Admittedly, by the time the judgment was pronounced by the Tribunal below, the said case was not decided by the Hon'ble Apex Court. The said case was decided and reported in the year 2013. However, since the appeal is pending and since the Hon'ble Apex Court in the said case was pleased to observe that while calculating the future loss of income or loss of dependency, the future prospects of the deceased or disabled was also to be considered. Therefore, we are of the view that the claimants are entitled for the compensation towards loss of future prospects of the deceased. According to the said judgment, in the Rajesh's case (supra), for the age of the deceased Nandakumar, 30% of his income has to be added towards future prospects. As such, 30% of the compensation under the head loss of dependency, which is Rs. 7,02,000/- comes to Rs. 2,10,600/-. This amount we intend to award under the head loss of future prospects of the deceased. 18. The Tribunal below has awarded a sum of Rs. 15,000/- to claimant No. 1 towards loss of consortium. The said amount undoubtedly is a meager amount. Considering the above said decision of Rajesh's case cited supra, we intend to enhance it to a sum of Rs. 1,00,000/- which according to us is reasonable in the circumstances of the case. Similarly, towards loss of love and affection also, a sum of Rs. 15,000/- awarded by the Tribunal below being not reasonable requires enhancement. As such, we enhance the said amount to Rs. 60,000/-. Compensation of Rs. 10,000/- awarded by the Tribunal below towards funeral and shifting of the body also requires to be enhanced considering the circumstances of the case. As such, we enhance it to Rs. 25,000/-. The Tribunal below has awarded a sum of Rs. 5,000/- towards loss of estate. The deceased being a Pigmy Agent and considering his monthly income, which was taken at Rs. As such, we enhance it to Rs. 25,000/-. The Tribunal below has awarded a sum of Rs. 5,000/- towards loss of estate. The deceased being a Pigmy Agent and considering his monthly income, which was taken at Rs. 6,000/- per annum, we do not find that he was capable of leaving a large estate to his dependants. However, the present circumstance of the case warrants enhancing the compensation under the said head from Rs. 5,000/- to Rs. 10,000/-. 19. Except the above heads, the claimants are not entitled for compensation under any other heads. As such, the claimants are entitled for compensation under the following heads:- Towards loss of dependency including future prospects of the deceased (7,02,000 + 2,10,600) 9,12,600/- Towards loss of consortium to claimant No. 1 1,00,000/- Towards loss of love and affection 60,000/- Towards funeral and shifting of the body 25,000/- Towards loss of estate 10,000/- Total 11,07,600/- 20. The contention of the appellant-corporation in MFA No. 21942/2013 is, the Tribunal ought to have held that there was contributory negligence on the part of the bicycle rider/deceased. Since the same has not been accepted by us, the order of the Tribunal below affixing the liability on the respondent-corporation to pay the entire compensation awarded remains unaltered. The order of the Tribunal below in fixing the liability upon the respondent-corporation, payment and rate of interest on the awarded amount and apportionment on the awarded amount and its release requires no interference at the hands of this Court. However, by virtue of the order of this Court dated 15.10.2014, the claimants/appellants in MFA No. 100720/2014 are not entitled for interest for the delayed period in preferring their appeal, which is 922 days. For these reasons, answering point No. 1 in the negative and point No. 2 in the affirmative, we proceed to pass the following order: ORDER: M.F.A. No. 21942/2013 is dismissed. In view of dismissal of the appeal I.A. No. 2/2013 filed for stay becomes infructuous. M.F.A. No. 100720/2014 is allowed in part. The judgment and award passed by the Motor Vehicle Accident Claims Tribunal-IX, Mudhol, dated 30.05.2011 in MVC No. 443/2007 is modified to the extent that the compensation of a sum of Rs. 7,47,000/- awarded therein is enhanced to Rs. 11,07,600/-. M.F.A. No. 100720/2014 is allowed in part. The judgment and award passed by the Motor Vehicle Accident Claims Tribunal-IX, Mudhol, dated 30.05.2011 in MVC No. 443/2007 is modified to the extent that the compensation of a sum of Rs. 7,47,000/- awarded therein is enhanced to Rs. 11,07,600/-. The remaining portion of the award, the rate of interest, fixation of the liability on the respondent-corporation, apportionment of the awarded amount among the claimants and its release shall remain unaltered. However, the claimants are not entitled for interest for the delayed period of 922 days. There is no order as to costs.