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2022 DIGILAW 1181 (KAR)

Managing Director v. Mahadevi

2022-09-07

C.M.POONACHA

body2022
JUDGMENT 1. MFA No.200859/2020 is filed by the owner of the bus challenging finding on negligence and MFA Crob. 200050/2022 is filed by the Claimants seeking for enhancement of compensation awarded. 2. Both the appeal and cross objection are taken up together as they are filed challenging the judgment and award dtd. 11/6/2020 passed in MVC.No.19/2019 by the III Addl. Senior Civil Judge and MACT at Kalaburagi (hereinafter referred to as the 'Tribunal') and are being disposed off by this common judgment. 3. For the sake of convenience, the parties are referred to as per their rank in the Tribunal. 4. Brief facts of the case are that deceased Shivalingappa and other person were busy in washing the bus bearing No.KA-32/F-2383 near the washing unit at the depot of the Respondent No.2 - NEKRTC (North Eastern Karnataka Road Transport Corporation). At the said time, an other bus bearing No.KA-32/F-2376 was brought and stopped close to the bus bearing No.KA-32/F-2383 to be washed after the bus which the deceased was washing. When the said bus bearing No. KA-32/F-2376 was driven by its driver in a rash and negligent manner and without noticing the deceased was washing the bus, the rear side hit him, as a result of which, the deceased was crushed between the two buses, causing the accident in question, wherein he sustained grievous injuries and succumbed to the same on the way to the hospital. 5. The wife, daughter and son of the deceased filed a Claim Petition before the Tribunal claiming compensation for the death of the deceased arraying the driver and the owner of the bus being the NEKRTC as party Respondents. The Claimant No.1 was examined as PW.1 and Exs.P1 to P6 were marked in the evidence. The Respondent No.1 was examined as RW.1 on behalf of the Respondents. The Tribunal, upon an appreciation of the oral and documentary evidence available on record awarded a sum of Rs.13,45,000.00 and directed the NEKRTC to pay the compensation together with interest at 6% pa. 6. The Respondent No.1 was examined as RW.1 on behalf of the Respondents. The Tribunal, upon an appreciation of the oral and documentary evidence available on record awarded a sum of Rs.13,45,000.00 and directed the NEKRTC to pay the compensation together with interest at 6% pa. 6. The Tribunal, while awarding the compensation, assessed the income of the deceased at Rs.9,000.00 p.m., since no documentary evidence was produced in support of the income of the deceased; the age of the deceased was assessed as 45 years as per the PM report " " Ex.P6 and accordingly, multiplier was applied at 14; assessed the future prospects at 25% and awarded loss of dependency at Rs.12,60,000.00. The Tribunal has further awarded compensation under the other conventional heads at Rs.85,000.00. 7. Upon a re-appreciation of the oral and documentary evidence available on record, it is required to be noticed that in the absence of any documentary material being produced to prove the income of the deceased, the notional income ought to have been assessed and accordingly, as per the income chart followed by this Court in settlement of claims before the Lok Adalath for the year 2018, the notional income is assessed at Rs.11,750.00; 1/3rd of the same is required to be deducted towards personal expenses; 25% is required to be added towards future prospects in terms of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others , 2017 ACJ 2700 . . Accordingly, the loss of dependency is re-assessed at (Rs.11,750.00+25/100x2/3x12x14) Rs.16,45,000.00 as against Rs.12,60,000.00 awarded by the Tribunal. 8. The Tribunal has awarded a sum of Rs.30,000.00 towards loss of love and affection, Rs.25,000.00 towards funeral expenses and Rs.15,000.00 towards loss of estate and Rs.15,000.00 towards loss of consortium. The said amounts are required to be reassessed in terms of the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra) and Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others , (2018) 18 SCC 130 . including the stipulation regarding increasing the compensation by 10% every 3 years. Accordingly, the compensation under conventional heads is re-assessed by awarding a sum of Rs.44,000.00 to Claimant No.1 towards spousal consortium, Rs.44,000.00 each to Claimant Nos.2 and 3 towards loss of parental consortium, Rs.16,500.00 towards funeral expenses and Rs.16,500.00 towards loss of estate. including the stipulation regarding increasing the compensation by 10% every 3 years. Accordingly, the compensation under conventional heads is re-assessed by awarding a sum of Rs.44,000.00 to Claimant No.1 towards spousal consortium, Rs.44,000.00 each to Claimant Nos.2 and 3 towards loss of parental consortium, Rs.16,500.00 towards funeral expenses and Rs.16,500.00 towards loss of estate. In view of awarding the aforesaid compensation under conventional heads, the award made by the Tribunal towards loss of love and affection is set aside. 9. Accordingly, the compensation under various heads is re-assessed as under: S. No. Compensation Heads Award by Tribunal in (Rs.) Award by this Court in (Rs.) 1 Loss of dependency 12,60,000/- 16,45,000/- 2 Loss of consortium 15,000/- 1,32,000/- 3 Loss of love and affection 30,000/- -- 4 Funeral expenses 25,000/- 16,500/- 5 Loss of estate 15,000/- 16,500/- Total 13,45,000/- 18,10,000/- Hence, the Claimants/Cross objectors are entitled for enhanced compensation of (Rs.18,10,000.00 " " Rs.13,45,000.00) Rs.4,65,000.00 along with interest at 6% p.a. 10. The Appellant (NEKRTC) in MFA No.200859/2020 has, inter alia, contended that the deceased himself was negligent in causing the accident as he was washing the bus without taking any precautionary measures and without taking any instructions from the NEKRTC. The Tribunal has formulated a specific issue with regard to the negligence, inasmuch as, on the said issue the Tribunal has appreciated the relevant oral and documentary evidence available on record, noticed the certified copy of FIR " " ExP1, certified copy of complaint " " Ex.P2, certified copy of charge sheet " " Ex.P3 and recorded a categorical finding that the accident was caused due to the negligent driving of the driver of the bus bearing No.KA-32/F.2376. The Tribunal has further noticed that NEKRTC has failed to prove their contention that the accident was caused not due to the negligent act of the driver of the bus bearing No.KA-32/F.2376. Hence, the Appellant " " NEKRTC has not demonstrated as to how the finding recorded by the Tribunal is contrary to the evidence available on record and is required to be interfered with in this appeal. Under the circumstances, the said contention of the NEKRTC is required to be rejected. 11. The other contentions urged by the NKERTC with regard to quantum of compensation are also liable to be rejected in view of the compensation being re-assessed as above in the cross objection filed by the Claimants. 12. Under the circumstances, the said contention of the NEKRTC is required to be rejected. 11. The other contentions urged by the NKERTC with regard to quantum of compensation are also liable to be rejected in view of the compensation being re-assessed as above in the cross objection filed by the Claimants. 12. In the result, I pass the following: ORDER i) MFA No.200859/2020 filed by the NEKRTC is dismissed; ii) MFA Crob No.200050/2022 filed by the Claimants is allowed in part; iii) The judgment and award dtd. 11/6/2020 passed by the Tribunal in MVC No.19/2019 is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remained unaltered; iv) The Claimants/Cross objectors are entitled for enhanced compensation of Rs.4,65,000.00 with interest at 6% p.a. from the date of petition till its realisation; v) The NEKRTC-Appellant in MFA No.200859/2020 is directed to deposit the enhanced compensation together with accrued interest within a period of two months from the date of this judgment; vi) The amount in deposit, if any, made by the Appellant in MFA No.200859/2020 shall be transmitted to the Tribunal for disbursement to the Claimants; vii) The apportionment, disbursement and deposit of the enhanced compensation shall be as per the award of the Tribunal; viii) No costs. In view of disposal of the main matter itself, consideration of I.A.1/2022 filed in MFA No.200859/2020, seeking permission to withdraw the amount deposited by the appellant, does not arise.