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2020 DIGILAW 1177 (KAR)

Managing Director Karnataka State Road Transport Corporation Bengaluru Central Office, Bengaluru v. Pushpa

2020-06-23

B.V.NAGARATHNA, RAVI V.HOSMANI

body2020
JUDGMENT Ravi V. Hosmani, J. - Though these appeals are listed for admission, with consent of the learned counsel on both sides it is heard finally. 2. Mfa No.7921/2018 is filed by the Managing Director, KSRTC, Bengaluru [hereinafter referred to as 'KSRTC' for short] while MFA No.10/2019 is filed by the legal representatives of the deceased Nagaraju, both assailing quantum of compensation awarded by the Motor Accidents Claims Tribunal (hereinafter referred to as "Claims Tribunal" for short), Bengaluru passed in MVC No.5229/2017 by judgment and award dated 9.7.2018 by the XIX Addl. SCJ, MACT, & XLI ACMM, Bengaluru. 3. For the sake of convenience, the parties shall be referred to, as per their status and ranking before the Tribunal. 4. The brief facts leading to these appeals are that on 10.07.2017 at about half past three in the afternoon when Nagaraju was riding motorcycle bearing Registration No.KA-03/EJ-7931 on Narasapura-Bellur Road, near Bellur, Kolar, a KSRTC bus bearing registration No. KA-07/F-1633 driven by its driver in high speed, rash and negligent manner dashed the motorcycle. Due to the impact Nagaraju died on the spot. Claiming compensation on account of his death, his wife and children filed the claim petition under Section 166 of the Motor Vehicles Act against the owner and insurer of the bus. 5. After service of notice respondent filed written statement denying the averments made in the petition. It was contended that the bus was driven slowly and there was no negligence on the part of the bus driver. The accident in question took place due to the negligence of the deceased himself. There was further denial of the age, avocation and income of the deceased and it was contended that the compensation claimed is exorbitant. Respondent-KSRTC sought for dismissal of the claim petition. 6. On the basis of the rival pleadings, the Claims Tribunal framed the following issues for its consideration: 1. Whether petitioners prove that on 10.07.2017 at about 3.30 p.m. when the deceased was proceeding on motorcycle bearing No.KA-03-EJ-7931 near Bellur village, Narasapura-Belluru road, Narasapura Hobli, Kolar Taluk, met with an accident, sustained injuries and succumbs to the same due to actionable negligence on the part of driver of bus bearing No.KA-07-F-1633 as alleged? 2. Whether petitioners are entitled for compensation? If so, at what rate and from whom? 3. What order or award? 7. 2. Whether petitioners are entitled for compensation? If so, at what rate and from whom? 3. What order or award? 7. In support of the case of the claimants, claimant No.1 got examined herself as PW-1 and got marked Exhibits P1 to P13. An eye witness, Sri. Shreedhar Babu was examined as PW2 and he got marked Exhibits P14 to P17. Respondent examined the driver of the bus as RW1 and marked documents from Ex.R1 to R3 and R1(a). 8. On the basis of the evidence on record, the Claims Tribunal answered issue No.1 in the affirmative and held that the accident occurred due to the rash and negligent driving by the driver of the bus. Issue No.2 is answered partly in the affirmative and the claimant was held entitled for a total compensation of Rs.9,10,000/- with interest at 7.5% per annum on the said amount from the date of petition till deposit of amount before the Court; and Issue No.3 was answered as per final order. 9. Assailing the award on the quantum of compensation awarded, both the claimant as well as the owner-insurer of the offending bus are in appeal. 10. Learned counsel for the appellant Sri. N. Kumar appeared through video conference and Sri. P. Suresh, learned counsel for the respondents appeared in person. 11. Learned counsel for the KSRTC submitted that the Claims Tribunal was not justified in considering the monthly income of the deceased Nagaraju at Rs.15,000/- based only on the entries in his Bank Account as the claimants failed to give any other particulars regarding the occupation of the deceased. 12. It was also contended that the Claims Tribunal was not at all justified in awarding interest at 7.5% on the compensation even when normally the High Court and Tribunals have been awarding interest at 6% per annum. Without prejudice to the afore mentioned contentions it was submitted that the award passed by the Claims Tribunal was justified and did not call for any further enhancement and sought for dismissal of the claimants' appeal. 13. On the other hand, learned counsel for the claimants submitted that the age of the deceased Nagaraju was mentioned as 56 years in the postmortem report Ex.P7. And as per Voter ID card Ex.P13 it would be 57 years. However, the Claims Tribunal has considered the age of the deceased as 62 years. Consequently no future prospects were added. 13. On the other hand, learned counsel for the claimants submitted that the age of the deceased Nagaraju was mentioned as 56 years in the postmortem report Ex.P7. And as per Voter ID card Ex.P13 it would be 57 years. However, the Claims Tribunal has considered the age of the deceased as 62 years. Consequently no future prospects were added. Even the multiplier applicable would be 9' corresponding to the age as 57 years whereas the multiplier applied was 7' which is not correct. 14. It was further contended that the notional monthly income of a coolie during the year 2017 is considered as Rs.11,000/-, whereas, the deceased Nagaraju was working as an agent for Eucalyptus Logs/ Trees and was shown to have an income of Rs.25,000/- per month as per the entries in the Bank Account passbook. On this count the award under the head of loss of dependency required recalculation. It was also contended that the Claims Tribunal erred in not awarding compensation under the head of love and affection/parental consortium to the claimant Nos.2 and 3 who are the son and daughter of the deceased. It was also submitted that there was no merit in the appeal filed by the KSRTC and sought for its dismissal. 15. During the course of his submissions learned counsel for the appellants/claimants furnished the certified copies of the exhibits marked before the Claims Tribunal, which were not disputed by the other side. They have been referred to and ordered to be returned to the learned counsel for the claimants/appellants after release of the judgment. 16. Having heard learned counsel for the respective parties, the following points would arise for our consideration: (1) Whether the quantum of compensation assessed by the Tribunal is just and proper? (2) Whether the award of interest at 7.5% on the compensation by the Tribunal is just and proper? (3) What Order? 17. Since both the appeals are challenging the award of the Claims Tribunal on quantum of compensation, the occurrence of the accident on 10.07.2017 between Bajaj Boxer motorcycle on which the deceased Nagaraju was riding and the KSRTC bus, due to the rash and negligent driving by the driver of the bus is not in dispute. The claimants having suffered loss of dependency due to the death of Nagaraju in the said accident is also not in dispute. The claimants having suffered loss of dependency due to the death of Nagaraju in the said accident is also not in dispute. The only dispute is with regard to the quantum of compensation awarded by the Tribunal. Point No.1. 18. As per the decision of the Hon'ble Supreme Court in the case of SARLA VARMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 , the first step for determining the compensation is to determine the multiplicand. The same is based on the age, occupation, income and the number of dependents of the deceased. In this case, the Claims Tribunal has determined the age of the deceased by referring to his Adhaar Card, in which it is mentioned as 10.05.1956. These particulars are admitted by claimant No.1 in her cross examination. The accident occurred on 10.07.2017. Thus, the determination of age of the deceased as on the date of accident as 62 years is fully justified. There is no merit in the contention of the learned counsel for the claimant to determine the age of the deceased as per the Voter ID. 19. Since the age of the deceased is determined as 62 years on the date of accident, there cannot be any addition of future prospects as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . The multiplier applicable would be 7' which is rightly applied by the Claims Tribunal. 20. In order to prove the occupation and income of the deceased, claimant No.1 i.e., the wife of the deceased has stated in her claim petition as well as oral evidence that the deceased was doing Eucalyptus Tree business and was earning more than Rs.25,000/- per month. In order to prove the income the claimant has got marked the Bank Passbook of the deceased as Ex.P9. Since there is no serious dispute regarding the occupation of the deceased and looking at the credit entries by way of cash, it can be safely held that the deceased Nagaraju was having an income of Rs.15,000/- per month. In comparison to the income of a coolie during the year 2017 at Rs.11,000/- per month, the national income determined cannot be held to be either excessive or unjustified. In comparison to the income of a coolie during the year 2017 at Rs.11,000/- per month, the national income determined cannot be held to be either excessive or unjustified. On the other hand, in the absence of any specific evidence regarding the nature and extent of business of the deceased, we find that there are no good grounds to consider any higher monthly income. 21. In this case, the claimants are the wife of the deceased and his two children. Hence, the deduction of personal expenses of the deceased will have to be at 1/3rd which is rightly applied. Thus, the calculation of the loss of dependency would be Rs.15,000/- - 1/3 (Rs.5,000/- = Rs.10,000/- x 12 x 7 multiplier = Rs.8,40,000/-, which is what has been awarded by the Claims Tribunal. (We affirm the same.) 22. The Claims Tribunal has further awarded a sum of Rs.40,000/- towards loss of consortium to the claimant No.1 wife, and a further sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. As the same are in conformity with the decision of the Hon'ble Supreme Court in the case of Pranay Sethi (Supra), they are affirmed. However, the Claims Tribunal has not awarded compensation to the children of the deceased. The Hon'ble Supreme Court in MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM @ CHUHRU RAM AND OTHERS, (2018) 18 SCC 130 , has held that children of the deceased are also entitled for compensation towards loss of parental consortium. A sum of Rs.30,000/- each is awarded to the claimants No.2 and 3 towards loss of parental consortium. Thus the point No. 1 is accordingly answered by awarding compensation on the head of loss of parental consortium & loss of love and affection to an extent of Rs.30,000/- each to the children of the deceased Nagaraju i.e., totally Rs.60,000/-. The rest of the compensation amount is retained. Point No.2 23. With regard to the rate of interest on the compensation, normally, this Court has been awarding interest at the rate of 6% per annum on the award. In the absence of any special or adequate justification, the award of interest at 7.5% by the Claims Tribunal would be unjustified. Hence, point No.2 is answered in favour of the KSRTC by reducing the rate of interest from 7.5% p.a., to 6% p.a. Consequently, both the appeals are allowed in part. In the absence of any special or adequate justification, the award of interest at 7.5% by the Claims Tribunal would be unjustified. Hence, point No.2 is answered in favour of the KSRTC by reducing the rate of interest from 7.5% p.a., to 6% p.a. Consequently, both the appeals are allowed in part. The total re-assessed compensation is Rs.9,70,000/- with interest at 6% p.a., from the date of the claim petition till realization as follows: a) Towards loss of dependency Rs.8,40,000/- b) Towards loss of consortium Rs.40,000/- c) Towards loss of parental consortium Rs.60,000/- d) Towards loss of estate Rs.15,000/- e) Towards funeral expenses Rs.15,000/- Total Rs.9,70,000/- In the result, we pass the following: ORDER The appeals are allowed in part. i) The claimants are held entitled for a total reassessed compensation of Rs.9,70,000/- with interest at the rate of 6% per annum from the date of filing of claim petition till the date of payment or deposit, whichever is earlier. ii) On deposit of the award amount, the disbursal/deposit shall be as per the directions of the Claims Tribunal. iii) However, the compensation awarded to the claimant Nos. 2 and 3 i.e., Rs.30,000/- each with interest as above, is ordered to be released to them on proper identification. iv) The amount in deposit before this court in MFA No.7921/2018 is ordered to be transmitted to the concerned Claims Tribunal for disbursal as above. v) The respondent insurer is directed to deposit the enhanced compensation within a period of six weeks from the date of receipt of a certified copy of this judgment. Parties to bear their respective costs.