- 1 - MFA No.7404 of 2014 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF DECEMBER, 2022 PRESENT THE HON'BLE MR. JUSTICE K.SOMASHEKAR AND THE HON'BLE MR. JUSTICE C. M. JOSHI MISCELLANEOUS FIRST APPEAL No.7404 OF2014(MV-D) BETWEEN:
1. SMT MARIYAMMA W/O SRI LATE HUCCHELLAPPA GRAND MOTHER OF SUDHAKAR AGED ABOUT62YEARS R/AT No.192, GUDDAHATTI CHANDAPUR CIRCLE ANEKAL TALUK BANGALORE URBAN - 562 107.
2. SMT SHUBHA W/O SRI PRAKASH AGED ABOUT27YEARS R/AT No.192, GUDDAHATTI CHANADAPUR CIRCLE, ANEKAL TALUK BANGALORE URBAN - 562 107.
3. SRI MANJUNATHA S/O LATE MUNIKRISHNAPPA AGED ABOUT25YEARS OCC:GARMENTS - 2 - MFA No.7404 of 2014 R/AT No.22, 3RD CROSS CHIKKABANASAVADI BANGALORE-560033 PREVIOUS ADDRESS GUDDAHATTI GATE NERALURU POST ANEKAL TQ BANGALORE URBAN - 562 107. …APPELLANTS (By SRI. SURESH M LATHUR, ADVOCATE ) AND:
1. . SRI SUYAMBULINGAM V. S/O SRI M VEERAPATHIRAM NADAR R/AT No.402, D BLOCK SRIRAM SWAGRUHA SAI GARDEN, VIDYARANAYAPURA BANGALORE -560 097. 2 . THE MANAGER HDFC ERGO GENERAL INSURANCE CO LTD UNIT No.108/109/110/111 1ST FLOOR, H M GENEVA HOUS NO.14, CUNNIGHAM ROAD NEXT TO WOCKHARD HOSPITAL BANGALORE -560 052. ...RESPONDENTS (BY SRI O.MAHESH, ADVOCATE FOR R-2; NOTICE TO R1 IS DISPENSED WITH V.O.D3010.2017) THIS M.F.A. IS FILED UNDER SECTION1731) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED1808.2014 PASSED IN MVC NO.176/2012 ON THE FILE OF THE XVI ADDITIONAL - 3 - MFA No.7404 of 2014 JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BANGALORE CITY, SCCH14PARTLY ALLOWING THE CLAIM PETITION FOR COMPESNATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING: JUDGMENT
Aggrieved by the judgment and award passed in MVC No.176/2012 on 18th August 2014 by the learned XVI Additional Judge, Court of Small Causes and Member, MACT, Bangalore City, SCCH14 the appellants/ petitioners have approached this Court in appeal, assailing the quantum of the compensation. By the impugned judgment and award, the Tribunal has awarded a sum of Rs.4,02,000/- after deducting 20% towards contributory negligence on the part of the deceased, together with interest at 9% p.a. from the date of petition till realization.
2. For the sake of convenience, the parties herein are referred to as per their ranks before the Tribunal.
3. The brief facts of the case are as below: - 4 - MFA No.7404 of 2014 The petitioners filed a claim petition under Section 166 of M.V. Act, claiming compensation of Rs.20,00,000/- on account of the death of one Sudhakar in a road traffic accident that occurred on 10-07-2011 at 1.30 p.m. It was contended by the petitioners that, they were the grandmother, sister and brother of the deceased Sudhakar and he was riding a motorcycle bearing No.KA- 02- EQ- 6051 on the National Highway No.7, Hosur- Bengaluru main road in front of Balegarana Halli Gate, Athibele Hobli, Anekal Taluk, along with the pillion rider Nagesh. When they were crossing the road, a car bearing No.TN-74-P-7234 came at high speed in a rash and negligent manner and dashed against the motorcycle of the deceased and as a result, Sudhakar sustained injuries to his head and legs and he was taken to Sparsh hospital, Hosur Road, Bangalore, wherein he took treatment and thereafter, he died on 22-7-2011 while shifting to Live 100 hospital Bangalore on account of the injuries sustained in the accident and petitioners have spent more than Rs.2,00,000/- towards transportation of the body and funeral expenses. It was contended that prior to the accident, deceased Sudhakar was working as a loader and unloader and doing the - 5 - MFA No.7404 of 2014 coolie work and earning Rs.8,000/- per month. Due to the sudden death of the deceased, the petitioners have lost love and affection and their livelihood as they lost the only earning member of the family. Subsequent to the accident, the police have registered a case against the driver of the car in Crime No.173/2011 for the offences punishable under Section 279, 338 and 304 (A) of IPC. It is contended that the respondents being the owner and insurer of the offending vehicle are liable to pay the compensation of Rs.20,00,000/-.
4. In pursuant to the notice issued by the Tribunal, respondents have appeared before the Tribunal through their counsel and filed objection statement.
5. Respondent No.1, owner of the vehicle admitted that the police have registered a case against the driver and he was RC holder of the car bearing No.TN.74-D-7234 and the driver of the car was having a valid driving license at the time of the accident. It was contended that the accident occurred due to the negligence of the driver of the Two wheeler i.e. the deceased and that his vehicle was insured with respondent No.2- insurance company and therefore, he has sought for dismissal of the petition with costs.-. 6 - MFA No.7404 of 2014 6. Respondent No.2- insurance company admitted that it had issued a policy in respect of the car owned by respondent No.1 and it is not aware of the relationship of the petitioners with the deceased. It was contended that respondent No.1 and the concerned police have failed to forward the documents and therefore, respondent No.2 is not liable to indemnify respondent No.1. It was further contended that the driver of the car was not having a valid and effective driving license at the time of the accident and also that the accident was due to the negligence of the deceased and as such, alleging that the compensation claimed is highly exaggerated baseless and imaginary, sought for dismissal of the petition with costs.
7. On the basis of the above pleadings, the following issues were framed by the Tribunal:
"1. Whether the petitioners proves that the deceased died in an accident arising out of negligence of the Motor Car bearing No.TN-74-P-7234 occurred on 10.07.2011 at about 1.30 P.M.?.
2. Whether the petitioners proves that he is LRs of the deceased Sudhakar?.
3. Whether the petitioners are entitled to compensation?. If so, how much and from whom?. - 7 - MFA No.7404 of 2014 4. What Order?.
8. The petitioners led evidence before the Tribunal. Petitioner No.3 was examined as PW1 and two witnesses were examined as PWs 2 and 3. They got marked the documents at Exhibits P1 to P15. The respondents have not produced any evidence on their behalf.
9. After hearing both the sides, the Tribunal held that the deceased Sudhakar has contributed negligence to the extent of 20% and by holding that the petitioners being the class II heirs, are entitled for a compensation of Rs.4,02,000/- i.e. 80% of Rs.5,01,500/- with interest at 9% per annum from the date of petition till its realization under different heads as below: Medical Expenses Rs. 62,000/- Loss of estate (81,000 x 18 x 25%) Rs.3,64,500/- Loss of love and affection Rs. 25,000/- Transportation and funeral expenses Rs. 25,000/- Pain and sufferings Rs. 25,000/- Total Rs.5,01,500/- 10. Aggrieved by the said the judgment and award passed by the Tribunal, the petitioners have approached this Court in - 8 - MFA No.7404 of 2014 appeal contending that the Tribunal has erred in awarding the compensation of Rs.62,000/- under the head of medical expenses though the actual medical expenses was to the tune of Rs.1,00,000/-. They also contended that the Tribunal erred in awarding compensation of Rs.25,000/- under the head of pain and suffering and it also erred in not computing the loss of dependency and erred in awarding Rs.3,64,500/- towards loss of estate and it was also incorrect in holding that the loss of love and affection can be compensated by awarding Rs.25,000/-. Thus by contending that the Tribunal has erred in awarding the compensation and attributing 20% of the contributory negligence to the deceased and therefore, they have sought for intervention by this Court.
11. On the issuance of notice by this Court, respondent No.2-insurance company has appeared through its counsel and notice to respondent No.1 has been dispensed with at the risk of the appellants.
12. The records of the Tribunal have been secured and the arguments by learned counsel appearing for the appellants Sri Suresh M. Latur and the arguments by learned counsel for the - 9 - MFA No.7404 of 2014 respondent No.2-Insurance Company Sri O. Mahesh have been heard.
13. The learned counsel appearing for the appellants submits that the contributory negligence could not have been attributed to the deceased, as it was observed by the Tribunal that the accident has happened at the centre of the road and the decision in the case of Syed Sadiq and others V. Divisional Manager, United India Insurance Company Limited1 lays down that, "when the accident has happened at the centre of the road, no contributory negligence can be attributed to the deceased".
14. He also relied on the decision in the case of Kiran V. Sajjan Singh and others2, wherein it was held that "when there is a collision between the tractor and the motorcycle away from opposite directions and the accident was in the middle-of-the-road, no contributory negligence could be attributed to the motorcyclist as the chargesheet has been filed against the driver of the tractor". He further contended that the Tribunal erred in holding that the income of the deceased was Rs.4,500/- per month and it should have taken into consideration the fact that he was aged 20 years and he was a 1 2014 ACJ6272 2014 ACJ2550- 10 - MFA No.7404 of 2014 coolie and therefore, the income should have been taken as contended by the petitioners. It was also contended that the Tribunal erred in not awarding the proper compensation under the head of loss of dependency, loss of love and affection, loss of estate and etc. and as such, he has submitted that the quantum of compensation arrived at by the Tribunal is incorrect and the same is to be re-assessed by this Court.
15. The learned counsel Sri O.Mahesh, appearing for the respondent No.2- insurance company has contended that the Tribunal is justified in taking the income of the deceased at Rs.4,500/- per month and at no stretch of imagination, the submissions made by the learned counsel for the appellants could be accepted that the deceased was earning more than Rs.7,000/- per month at the time of the incident. It was also contended that the grandmother, brother and sister of the deceased are not the dependants and therefore, the compensation under the head of 'loss of estate' alone is entitled by them. He further submits that the Tribunal is justified in holding that there is a contributory negligence on the part of deceased, but he contends that the contributory negligence should have been held at 50% in view of - 11 - MFA No.7404 of 2014 the fact that, when the deceased was crossing the lanes, he did not observe the on coming vehicle in his effort to cross the road. It is submitted that the accident was due to the sheer negligence of deceased and therefore, the compensation arrived at by the Tribunal is to be reduced. It is also contended that, at the most, the income that was considered under the Minimum Wages Act, for an unskilled labourer could be considered by this Court, while assessing the compensation.
16. In the light of the above submissions made by both the sides, this Court has to find out whether the award passed by the Tribunal is just and reasonable considering the evidence placed on record.
17. It is pertinent to note that the spot sketch prepared by the police at the time of the spot mahzar is produced at Ex.P7 and the spot mahazar is produced at Ex.P6. These two documents constitute basis for assessing whether any contributory negligence can be attributed on the part of the deceased or not.-. 12 - MFA No.7404 of 2014 18. A careful perusal of Exs.P6 and P7 show that it is the National Highway and four lane highway is divided by a median in between. The deceased was crossing the road at the place where the median has a opening for changing the lanes. It appears that the deceased Sudhakar was trying to take a U-turn at a place where the divider had ended and without looking to the on coming speeding car, he tried to take the U-turn and the car hit upon the front portion of the motorcycle of the deceased. The report of the Motor Vehicle Inspector also supports this circumstance and therefore, there cannot be any doubt that the deceased could have avoided the accident had he seen the oncoming the car. This aspect has been observed by the Tribunal while considering the issue No.1. We do not find any reason to differ with the conclusion reached by the Tribunal in this regard.
19. The decisions cited by the learned counsel appearing for the appellants is regarding the accident which had happened at the center of the road, which did not had any median. In the case on hand, the road is divided by a median and while the deceased was taking a U-turn, he should have seen the oncoming vehicle. It being a highway, every precaution should have been taken by the - 13 - MFA No.7404 of 2014 deceased also. Therefore, we do not see that the decisions relied by learned counsel appearing for the appellants have any application to the facts and circumstances of the present case. The Tribunal has considered this aspect and has come to the conclusion that the deceased contributed to the extent of 20% of the negligence and we also do not see any illegality in such conclusion.
20. Considering the fact that the car driver should have anticipated a pedestrian or any other vehicle coming from his right side at the place where the median had a opening for the vehicles taking the U-turn, the attribution of 80% of the negligence towards the car driver is justifiable.
21. The learned counsel appearing for the insurance company, Sri O. Mahesh, has contended that the income of the deceased taken at Rs.4,500/- per month is justifiable. The learned counsel for the appellants have contended that the deceased was a loader and as such, he was having income of Rs.8,000/- per month. It is contended that the Guidelines issued by the Karnataka State Legal Services Authority regarding the notional income for the purpose of settlement of the cases before the Lok - 14 - MFA No.7404 of 2014 Adalath may be adopted and according to this, a sum of Rs.6,500/- per month may be considered by the Court.
22. However, the learned counsel appearing for the respondent No.2- insurance company has contended that the Guidelines issued by the Legal Services Authority are only for the purpose of the settlement before the Lok Adalath and thus they cannot be adopted while granting the compensation in the Court. He submits that the minimum wages fixed under the Minimum Wages Act, may be considered as guidelines and therefore, he submits that the sum of Rs.4,550/- was the minimum wages fixed during the said time and therefore, the Tribunal is justified in holding the income at Rs.4,500/- per month.
23. The question as to whether the guidelines issued by the Legal Services Authority can be adopted or whether the Tribunals have to depend upon the Minimum Wages Act, appears to be the bone of contention between the parties.
24. It is relevant to note that in a recent decision in the case of Meena Pawaria and others Vs. Ashrafali and others3, 3 2021 SCC online SC1083- 15 - MFA No.7404 of 2014 the Apex Court had an occasion to consider the minimum wages prescribed under the Act and it was held that the minimum wages fixed under the said Act can be considered as guidelines and depending on the educational qualifications and other circumstances, the income of III year Engineering Student may be considered at the rate of Rs.10,000/- per month.
25. Further, in the case of Jakir Hussein V. Sabir4, the Apex Court had an occasion to consider as to whether the minimum wages fixed can be considered as guidelines. In para 14, it was held as below: “14. We have carefully examined the facts of the case and material evidence on record in the light of the rival legal contentions urged before us by both the learned counsel on behalf of the parties to find out as to whether the appellant is entitled for further enhancement of compensation. We have perused the impugned judgment and order of the High Court and the award of the Tribunal. After careful examination of the facts and legal evidence on record, it is not in dispute that the appellant was working as a driver at the time of the accident and no doubt, he could be earning Rs 4500 per month. As per the notification issued by the State Government of Madhya Pradesh under Section 3 of the Minimum Wages Act, 1948, a person employed as a driver earns Rs 128 per day, however the wage rate as per the minimum wage notification is only a yardstick and not an absolute factor to be taken to determine the compensation under the future loss of income. Minimum wage, as per the State Government notification alone may at times fail to meet the requirements that are needed to maintain 4 (2015) 7 SCC252- 16 - MFA No.7404 of 2014 the basic quality of life since it is not inclusive of factors of cost of living index. Therefore, we are of the view that it would be just and reasonable to consider the appellant's daily wage at Rs 150 per day (Rs 4500 per month i.e. Rs 54,000 per annum) as he was a driver of the motor vehicle which is a skilled job. Further, the Tribunal has wrongly determined the loss of income during the course of his treatment at Rs 51,000 for a period of one year and five months. We have to enhance the same to Rs 76,500 (Rs 4500 × 17 months).” (emphasis by us) 26. Again, in the case of Smt. Neeta and others V. Divisional Manager MSRTC Kolhapur 5, it was held that "minimum wages prescribed under the Minimum Wages Act, may be considered" and accordingly, the compensation was assessed by the court.
27. Further, the decision in the case of the Kala Devi and others V. Bhagwan Das Chouhan and others6 also lays down that the minimum wages may be considered to be the guidelines in assessing the compensation by adopting the notional income when there is no specific proof of the income.
28. In another decision in the case of Sonobanu Nazirbhai Mirza Vs. Ahmadabad Municipal Transport Service7, again, it 5 (2015) 3 SCC5906 (2015) 2 SCC7717 (2013) 16 SCC719 - 17 - MFA No.7404 of 2014 was held that the minimum wages may be considered to be the guidelines in assessing the notional income.
29. In the case of Pushkar Mehra V. Brij Mohan Kushwaha and others8 it was held that "the minimum wages prescribed for unskilled worker could be considered for assessing the compensation to a victim of an accident".
30. In the case of Govind Yadav V. The New India Insurance Company Limited and another9, again, the Apex Court has reiterated the importance of the Minimum Wages Act in assessing the notional income of the deceased, who had no proof of income.
31. Further, in yet another decision in the case of Ningamma and another V United India insurance Company Limited10, the Apex Court has referred to the Minimum Wages Act, in assessing the notional income of the deceased and to arrive at a just compensation when the petition was filed under Section 166 of the Motor Vehicles Act. 8 (2015) 12 SCC688 9 (2011) 10 SCC68310 (2009) 13 SCC710- 18 - MFA No.7404 of 2014 32. Thus, it is evident from the above decisions that the Apex Court has shown a continuous and consistent trend that the Minimum Wages Act, provide for a source by which the notional income of the deceased, who had no valid proof of income could be assessed. It is worth to note that the Minimum Wages Act prescribed a method under which the income of a skilled, unskilled, semiskilled and skilled worker can be considered. It acts as a basis for various other purposes and even under the Workmen’s Compensation Act. Therefore, the notional income of a deceased who did not have a valid proof of income can very well be guided by the wages fixed under the Minimum Wages Act and it is for the Tribunal to consider whether he was a skilled, unskilled, semiskilled or unskilled labourer. The range of the wages between highly skilled and unskilled labourer may have to be considered by the Tribunal while assessing the income of the deceased. The wages under the Minimum Wages Act serve as the guidance and depending on the educational, economic conditions and age, the tribunals have to consider the notional income.
33. Coming to the question whether the guidelines issued by the Legal Services Authority can be considered or not, it is - 19 - MFA No.7404 of 2014 pertinent to note that the guidelines, a copy of which is made available to this court, by and large are on the same lines as fixed under the Minimum Wages Act, for settlement of the cases before the Lok Adalath, which is on the basis of the mutual agreement between the parties, shuts down all the approaches for a re- assessment of the compensation by the appellate Courts. Considering this aspect, a slightly higher wages have been set down as guidelines and we do not see any reason to have any qualms with the same. However, such guidelines cannot take the place of a statutory guidelines and therefore, we hold that it would be proper to rely on the wages fixed under the Minimum Wages Act and the Tribunal has to consider the minimum wages prescribed under the Minimum Wages Act, as a guideline and assess whether the deceased was a skilled or unskilled labourer. The range of a highly skilled labourer and unskilled labourer could be considered by the Tribunals, if there is no other proof of income. We hasten to add that the notional income cannot be adopted, with precision, as prescribed under the Minimum Wages Act also, but it acts as beacon only.-. 20 - MFA No.7404 of 2014 34. It is also pertinent to note that the Minimum Wages Act, prescribes the wages and VDA for the period from 01-04-2013 to 31-03-2014 as below:
"Notification No.KAE26LMW2011Dtd:9.01.2013 Published in Gazette dtd.09.01.2013 Cost of Living Allowance to be paid over and above 4284 points Cost of Living Index:
5075. 4284 = 791 points Minimum wages and VDA from 01.04.2013 to 31.03.2014 SCHEDULE Minimum rates of wages Sl Class of No.Employment Per day Per month 1 High skilled Basic 225-00 5850-00 VDA3650 949-20 Total 261-50 6799-20 2 Skilled Basic 215-00 5590-00 VDA3650 949-20 Total 261-50 6539-20 3 Semi-skilled Basic 190-00 4940-00 VDA3650 949-20 Total 226-50 5889-20 4 Un skilled Basic 175-00 4550-00 VDA3650 949-20 Total 211-50 5499-20 35. The guidelines fixed by the Legal Services Authority for the year 2011 is, "Rs.5,500/- to Rs.6,500/-"; and for the year 2013, - 21 - MFA No.7404 of 2014 is "Rs.7,000/- to Rs.8,000/-". As observed above, it is slightly higher than the income prescribed under the Minimum Wages Act.
36. Coming to the case on hand, the deceased Sudhakar was working as a loader and it can be said that he was a skilled worker. The accident occurred in the year 2011. The minimum wage prescribed under the Minimum Wages Act, is, "Rs.5,499/- for unskilled to Rs.6,799/- for high skilled for the year 2013". Therefore, the income of the deceased is taken at Rs.6,000/- per month by considering the fact that accident was in 2011 and it was in Bangalore which is in Zone-I.
37. The next question that falls for consideration is, whether the petitioners are dependants or not. There cannot be any doubt that the petitioners are the grandmother, brother and sister of the deceased. It has come in the evidence that the parents of the deceased are not alive and only the brother and sister of the deceased were depending upon the earnings of the deceased. Therefore, we are of the considered opinion that the petitioners being the class II legal heirs are entitled for the compensation and there cannot be any distinction that they are entitled only for the estate of the deceased.-. 22 - MFA No.7404 of 2014 38. Under these circumstances, we re-assess the compensation under different heads as below: • Towards loss of dependency: the income of the deceased was taken at Rs.6,000/- per month and by providing escalation of the income towards the future prospects at 40%, the total income is calculated as "Rs.2400+ Rs.6,000/-= Rs.8,400/-". By adopting multiplier of '18' and deducting 50% of the income towards the personal expenses of the deceased as he was a bachelor, the loss of dependency is calculated as, "Rs.8,400/- x 12 x 18 x 50% =Rs.9,07,200/-."
• The Tribunal has considered the medical expenses of Rs.62,000/- even though the bills were submitted to the tune of Rs.67,000/-, on the ground that the transportation expenses were also included in the same. We do not intend to interfere in the same and therefore, the petitioners are entitled for sum of Rs.62,000/- under the said head. • The petitioners are the dependents of the deceased and therefore, a sum of Rs.40,000/- is awarded to each of them towards the loss of love and affection by relying upon the decision in the case of Magma General Insurance - 23 - MFA No.7404 of 2014 Company Limited V. Nanuram @ Chuhru Ram and others11 . • It is also relevant to note that as per the decision in the case of National Insurance Company limited V. Pranay Sethi and others12 at para 52, it is held that at every three years there should be an escalation in these heads also and we do not intend to adopt the same for the reason that the petitioners are not the parents of the deceased. By adopting the principles enunciated in Pranay Sethi's case, we award the funeral expenses of Rs.15,000/- and loss of estate at Rs.15,000/-. Thus, the compensation payable to the appellant is, Rs.11,19,200/-. By deducting 20% from the above amount, which is Rs.2,23,840/-, the compensation entitled by the petitioners would be Rs.8,95,360/-. The Tribunal has awarded a sum of Rs.4,02,000/- and therefore, the difference would be Rs.4,93,360/-.
39. Thus, the present appeal deserves to be allowed in part. Hence, we pass the following:
11. 2018 SCC Online SC154612 AIR2017SC5157- 24 - MFA No.7404 of 2014 ORDER
(i) The Appeal is allowed in part. (ii) The petitioners/appellants are entitled for a sum of Rs.4,93,360/- in addition to what has been granted by the Tribunal along with interest at the rate of 6% per annum from the date of the petition till its payment. The impugned judgment and award passed by the Tribunal is modified to the said extent. (iii) The Respondent No.2-Insurance company is directed to deposit the compensation amount within three weeks from the date of this order. (iv) The other conditions regarding the apportionment imposed by the Tribunal remain undisturbed. Sd/- JUDGE Sd/- JUDGE tsn* List No.:
2. Sl No.:
2.