Full Judgment
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2023. KHC:47176 ® MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE14H DAY OF DECEMBER, 2023 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL No.5674 OF2017(MV-D) C/W MFA CROSS OBJECTION No.2 OF2019(MV-D) IN MFA No.5674/2017 BETWEEN: KARNATAKA STATE ROAD TRANSPORT CORPORATION, MANDYA DIVISION, MANDYA BY ITS DIVISIONAL CONTROLLER, REPRESENTED BY ITS THE MANAGING DIRECTOR. …APPELLANT (BY SRI. P.B. RAJU, ADVOCATE FOR SMT. H.R. RENUKA, ADVOCATE) AND:
1. CHIKKAIAH, W/O LATE MAYIGAIAH, AGED ABOUT66YEARS, 2. CHIKKATHYAMMA, W/O CHIKKAIAH, AGED ABOUT61YEARS, R/O MADAPURA DODDI NIDAGATTA POST, ATHAGURU HOBLI, MADDUR TALUK, MANDYA DISTRICT - 571 428. …RESPONDENTS (BY SRI. RITHISH D. NAIK, ADVOCATE FOR SRI. T.P. VIVEKANANDA, ADVOCATE FOR R1 AND R2) - 2 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 THIS MFA IS FILED U/S1731) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED2004.2017 PASSED IN MVC NO.101/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT., CHANNAPATTANA, RAMANAGAR DISTRICT. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA.CROB No.2/2019 BETWEEN:
1. CHIKKAIAH, W/O LATE MAYIGAIAH, AGED ABOUT68YEARS, 2. CHIKKATHYAMMA, W/O CHIKKAIAH, AGED ABOUT62YEARS, BOTH ARE RESIDING AT MADAPURA DODDI, NIDAGATTA POST, ATHAGURU HOBLI, MADDUR TALUK, MANDYA DISTRICT - 571 428. …CROSS OBJECTORS (BY SRI. RITHISH D. NAIK, ADVOCATE FOR SRI. VIVEKANANDA T.P, ADVOCATE FOR R1 AND R2) AND: KARNATAKA STATE ROAD TRANSPORT CORPORATION, MANDYA DIVISION - 571 423, MANDYA BY ITS DIVISIONAL CONTROLLER, REPRESENTED BY ITS THE MANAGING DIRECTOR. …APPELLANT (BY SRI. P.B. RAJU, ADVOCATE FOR SMT. H.R. RENUKA, ADVOCATE) THIS MFA CROB IN MFA56742017 PASSED U/O.41 RULE22OF CPC R/W SEC.173(1) OF MV ACT, AGAINST THE - 3 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 JUDGMENT
AND AWARD DATED2004.2017 PASSED ON MVC NO.101/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MFA AND MFA.CROB, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Aggrieved by the award passed in M.V.C.No.101/2016 dated 20.04.2017 on the file of Senior Civil Judge and JMFC & Addl. MACT, Channapattana, the Insurance Company has preferred the present appeal. In that, the claimants have filed cross objections seeking enhancement of the compensation.
2. It is the case of the claimant that on 09.12.2015 at 11:30 p.m., when the deceased was standing on the left side of the road, at that time, the driver of the KSRTC bus came from Mysuru side towards Bangalore in a rash and negligent manner and dashed against the deceased. As a result, he fell down and sustained grievous injuries to his head and all over the body and died at the spot. He - 4 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 was aged about 31 years, doing coolie work and earning an amount of Rs.25,000/- per month.
3. The Court below on the issue of negligence has held that Ex.P.1 shows that the Police have registered the case against the driver of the offending vehicle under Section 279 and 304(A) of the IPC and also filed a chargesheet. Prima facie establishes that the negligence is on the part of the driver of the KSRTC bus. The sketch drawn on the scene of occurrence also reveals that the accident occurred due to the negligence of the KSRTC bus.
4. Then coming to the compensation, the Court below has considered the income at Rs.5,000/-, as the deceased was 40-50 years, the Court below had granted 50% future prospects and deducted 50% towards personal expenses and granted compensation of an amount of Rs.7,20,000/- under the head of loss of dependency. When it comes to transportation of the dead body and funeral expenses, an amount of Rs.10,000/-, loss of estate - 5 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 an amount of Rs.20,000/-, loss of love and affection an amount of Rs.20,000/-. Altogether, compensation of an amount of Rs.7,70,000/- was awarded by the Court below. Heads Compensation Awarded 1. Loss of dependency : Rs. 7,20,000/- 2. Transportation of the dead : Rs. 10,000/- body and funeral expenses 3. Loss of estate : Rs. 20,000/- 4. Loss of love and affection : Rs. 20,000/- TOTAL : Rs. 7,70,000/- 5. Learned counsel appearing for the Insurance Company submits that the accident had occurred on B.M.Road, Channapatna, Mysore-Bangalore Highway at 11:30 p.m. The bus was proceeding from Mysore towards Bangalore. The highway is separated by a divider. The spot Mahazar and the sketch shows that the place of accident is 3 feet from the divider and 12 feet from the edge of the road. The manner in which the accident - 6 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 occurred shows that the deceased attempted to cross the road by crossing the divider. The divider is meant to prevent the pedestrians from entering the highway. The place of accident clearly shows that the deceased had entered the highway in a negligent manner that too in the night hours, when the vehicles would be plying non-stop on the said road. Further, it is not a zebra crossing. The deceased by venturing to enter the road by crossing the divider was totally negligent and contributed to the accident. This aspect was not considered by the Court below. The Court below more on the aspect that criminal case is registered against the driver of the KSRTC had held that the accident had taken place because of their negligence which is contrary to the evidence on record.
6. Then coming to the contribution, it is submitted that the Court below ought not to have taken 50% future prospectus as 50% future prospectus are granted in favour of a settled employment whereas in this case, according to the claimant, the deceased was working as a - 7 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 coolie and the Court below had considered 50% future prospectus. It is submitted that according to the claimant he was earning an amount of Rs.25,000/-. Though there was no evidence, the Court below had taken an amount of Rs.5,000/- as notional income which is on the higher side. It is submitted that the order passed by the Court below is without considering the evidence on record needs to be set aside.
7. Learned counsel appearing for the respondent - claimant who has filed the cross objections submits that the Court below ought to have taken the income of the deceased as claimed by the claimants at Rs.25,000/-. He submits that the accident had taken place in the year 2015 and the Court below should have taken at least an amount of Rs.8,000/- as the income. It is submitted that there is no contributory negligence on the part of the claimant and the accident had taken place because of the negligence on the part of the driver of the KSRTC bus and filing of the charge sheet against the driver also supports the case of - 8 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 the claimant. It is submitted that the Court below had failed to consider the income and failed to grant a reasonable compensation. He submits that the compensation is liable to be enhanced.
8. Having heard the learned counsel on either side, perused the entire material on record. First, coming to the issue of compensation, according to the claimant, he was working as a coolie and earning an amount of Rs.25,000/-. The Court below had taken the income at Rs.5,000/-. This accident occurred in the year 2015, considering the chart prepared by the Karnataka State Legal Services Authority, this Court is taking the income at Rs.8,000/- per month. The Court below had wrongly taken 50% future prospectus, it ought to have taken 40% as the deceased was coolie. 40% future prospectus would come to Rs.3,200/- i.e., Rs.11,200/-. As the deceased was a bachelor, 50% has to be deducted towards personal expenses, then his contribution to the family would be Rs.10,75,200/- (Rs.5,600x12x16). Hence, under the head - 9 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 of loss of dependency, the claimants are entitled for an amount of Rs.10,75,200/-. Then towards consortium, the parents are entitled for an amount of Rs.88,000/-. Towards funeral expenses an amount of Rs.33,000/-. Towards legal expenses an amount of Rs.10,000/-. Altogether, the claimant is entitled for an amount of Rs.12,06,200/-.
9. Then coming to the issue of contributory negligence, this Court has perused the sketch Ex.P.6 and the evidence of PW.1 to 3 and this Court finds force in the argument of the learned counsel for the KSRTC. The Court below ought not to have taken into consideration only the charge sheet and it ought to have looked at the other material placed on record. The accident had taken place at night time at 11:30 p.m., when the claimant was attempting to cross the road by divider which is on a highway. Undisputedly, there is no zebra crossing. It shows that the claimant has also contributed to the accident. At the same time, if the driver of the KSRTC bus - 10 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 was cautious, he would have avoided the accident. Hence, this Court holds that there is negligence on the part of both the deceased and the driver of the KSRTC. Hence, the contributory negligence is apportioned at 30% on the deceased and 70% on the driver of the KSRTC.
10. At this juncture, learned counsel for the claimant had submitted that, when this Court had fixed the contributory negligence at 30% the same should be deducted from the loss of dependency but not from the conventional heads. He had relied on the order passed by the High Court of Punjab and Haryana in the case of National Insurance Company Ltd. Vs. Gurmit Kaur and others dated 08.02.2019 in FAO No.6109/2012 with XOBJC No.8-CII/2015 wherein the Court had deducted 50% contributory negligence from the loss of dependency. He has relied on another judgment of the High Court of Judicature at Madras in the case of Ruckmani @ Chellammal and others Vs. Sheeja Chandrakanthan and others dated 29.04.2021 in - 11 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 C.M.A.No.1937/2020 and submits that in the said judgment, the learned Single Judge has observed that since the Division Bench of the Madras High Court in the case of National Insurance Company Ltd. Vs. Thangadurai and another dated 13.04.2018 in C.M.A.No.624/2016 has held that there shall be deduction towards contributory negligence only from the loss of dependency and not from the conventional heads. He had relied on another judgment of the Apex Court in the case of Raj Rani and Others Vs. Oriental Insurance Company Ltd. and Others1. He submits that the Apex Court has observed that in the said case, the Court after deducting the amount on contributory negligence from the loss of dependency later added the conventional heads and granted the compensation. He relied on the judgment of High Court of Punjab and Haryana in the case of Ram Rehi and Another Vs. Raunki Ram and Others dated 15.01.2018 in 1 (2009) 13 SCC654- 12 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 FAO No.1258/2004, submits that the Court had held that even if there is contributory negligence of 50%, still the amount awarded under the conventional heads need not be reduced. It is only the loss of dependency calculated which is to be restricted. He had relied on another judgment of the Madras High Court in the case of National Insurance Company Ltd. Vs. Thangadurai and Another dated 13.04.2018 in C.M.A.No.624/2016 wherein the Court had deducted the contributory negligence from the loss of dependency. Basing on this, learned counsel submits that the contributory negligence has to be reduced from the loss of dependency, but not from the whole amount of compensation.
11. Learned counsel appearing for the KSRTC relied on the judgment of the Hon'ble Apex Court in the case of Sri Krishna Vishweshwar Hegde Vs. General Manager, KSRTC2. It is submitted that in the said case, the contributory negligence was deducted from the entire 2 LAWS (SC)-2008-4-28 - 13 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 compensation. He has relied on another judgment of the Apex Court in the case of United India Insurance Company Ltd. Vs. Satinder Kaur Alias Satwinder Kaur and others3. Relying on the said judgment, he submits that the amount for contributory negligence has to be deducted from the whole amount, but not from the loss of dependency.
12. This Court has perused the judgments relied on by the counsels on either side. The judgment that is relied on by the learned counsel for the KSRTC i.e., the judgement the Apex Court in the case of United India Insurance Company Ltd. Vs. Satinder Kaur Alias Satwinder Kaur and others or the other judgment of the Apex Court in the case of Sri Krishna Vishweshwar Hegde referred supra, no ration is laid down by the Apex Court on the said issue. Though in those cases, from the calculation, it is found that from the entire compensation, the amount was deducted. In the judgments relied on by 3 (2021) 11 SCC780- 14 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 the learned counsel for the claimant particularly the judgment of the Apex Court in the case of Raj Rani and Others referred supra, the contributory negligence was deducted from the loss of dependency and later added the other conventional heads. The other judgments of the High Court of Punjab and Haryana and the High Court of Madras which was relied on by the learned counsel for the appellant also held that the contributory negligence has to be deducted from the loss of dependency but not from the entire compensation.
13. The Hon'ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others4, had referred to various judgments of the Apex Court wherein it was held that consortium is held to be a compendious term, which encompasses "spousal consortium", "parental consortium" as well as filial consortium. The Court observed that the right of consortium would include the company, care, help, 4 (2018) 18 SCC130- 15 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 guidance, solace and affection of the deceased which is a loss to his family with respect towards spouse, parent or a child.
14. The Motor Vehicle Act is a beneficial legislation which has come into existence with an objective to provide relief to the victims or their families in respect of genuine claims. In the cases, where there is contributory negligence on the part of the deceased, the Courts have been apportioning the negligence and accordingly, reducing the compensation proportionately. The loss of dependency is calculated basing on the income, multiplier and relevant factors. Then, compensation under the other conventional heads is granted considering the agony, loss of companionship, loss of love and affection. Pecuniary damages are those which can be quantified and are capable of being calculated in terms of money. The non- pecuniary damages that are granted to the claimants is mostly based on their sentiments and emotions. When the Courts calculate the pecuniary damages basing on the - 16 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 income, economic wealth and other factors, when it comes to non-pecuniary damages, it do not make any distinction. More burden lies on the Courts while determining the non- pecuniary damages which cannot be quantified. The object of the Motor Vehicle Act is to mitigate the hardship caused to the claimants and to grant just and reasonable compensation. Though several judgments were relied on by both the parties, particularly the issue whether the amount towards contributory negligence can be deducted from the pecuniary heads or the non-pecuniary heads, no such law is laid down. In the considered opinion of this Court, when the contributory negligence is being quantified, the same has to be deducted from the pecuniary heads. The loss of dependency is granted under the pecuniary head. Hence, the amount for contributory negligence has to be deducted from the loss of dependency, but not from the total compensation including the conventional heads.-. 17 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 15. Coming to the facts of the present case, loss of dependency is arrived at an amount of Rs.10,75,200/-. As this Court has held that there is 30% negligence on the part of the deceased and 70% on the part of the driver of the KSRTC bus. The KSRTC shall pay an amount of Rs.7,52,640/- towards loss of dependency. Towards consortium, the claimants are entitled for an amount of Rs.88,000/-, towards funeral expenses an amount of Rs.33,000/-. In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER5, the claimant is entitled for an amount of Rs.10,000/- towards legal expenses. Altogether, the claimant is entitled for compensation of an amount of Rs.8,83,640/-.
16. The claimant is therefore, entitled to the compensation under the following heads:
5. (2014) 11 SCC178- 18 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 Heads Compensation Awarded 1. Loss of dependency : Rs. 7,52,640/- (70% of Rs.10,75,200) 2. Consortium : Rs. 88,000/- 3. Funeral expenses : Rs. 33,000/- 4. Legal Expenses : Rs. 10,000/- TOTAL : Rs. 8,83,640/- 17. Accordingly, the appeal of the KSRTC is allowed-in-part by fixing the contributory negligence at 30% on the claimant and 70% on the driver of the KSRTC and the appeal of the claimant is allowed-in-part by enhancing the compensation from Rs.7,70,200/- to Rs.12,06,200/-. As the contributory negligence is fixed at 30% on the claimant and 70% on the driver of the KSRTC, then the KSRTC is liable to pay compensation of an amount of Rs.8,83,640/-. i. The enhanced amount shall carry interest at 6% p.a. from the date of petition till the date of realization.-. 19 - NC:
2023. KHC:47176 MFA No.5674 of 2017 C/W MFA.CROB No.2 of 2019 ii. KSRTC shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security. iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. iv. The amount in deposit shall be forthwith transferred to the Court below. v. No costs. Pending miscellaneous petitions, if any, shall stand closed. SD/- JUDGE MEG List No.:
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111. CT: BHK