Full Judgment Text
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 6 DAY OF JUNE 2012
PRESENT
THE HON’BLE MR.JUSTICE DILIP B BHOSALE
AND
THE HON’BLE MRS JUSTICE B S INDRAKALA
MISCELLANEOUS FIRST APPEAL No.1686/07(MV)
BETWEEN :
1 P VIJAYA KUMARI
D/O LATE S PRABHAKARA
AGED ABOUT 24 YEARS,
2 P SHUBHA
D/O LATE S PRABHAKARA
W/O K RAMESH,
AGED ABOUT 22 YEARS.
3 P RAGHAVENDRA
S/O LATE S PRABHAKARA
AGED ABOUT 19 YEARS.
4 SMT SHIVARUDRAMMA
W/O SANKAPPA
AGED ABOUT 54 YEARS.
5 SANKAPPA
S/O THIPEPESWAMY
2
AGED ABOUT 79 YEARS.
APPELLANTS 1 TO 4 ARE R/O KARUVINAKATTE
CHITRADURGA AND APPELLANT NOS. 4 AND 5
ARE R/O AMBEDKARNAGARA,
SOMAGUDDU ROAD,
CHALLAKERE. ...APPELLANTS
(BY SRI D R NAGARAJU & SMT SPOORTHY HEGDE,
ADVOCATES)
AND :
1 M/S NATIONAL INS CO LTD
BY ITS BARNCH MANAGER,
S.S.COMPLEX, B.H.ROAD,
SHIMOGA.
2 H G MURALIDHAR KAMATH
S/O LATE GOVINDA RAO KAMATH
R.C.OWNER OF THE BUS KA-14/B-5225,
KRISHNA MOTORS NO.27,
ARYA DURUGAMMA STREET,
SHIMOGA.
3 GEETHAMMA
W/O PRABHAKARA,
4 RANJITHA
D/O BASAVARAJAPPA,
AGED ABOUT 11 YEARS, MINOR,
REP. BY NEX FRIEND R3.
R3 AND R4 ARE R/O 2ND CROSS,
GOPALAPURA ROAD,
3
CHITRADURGA – 577501. ...RESPONDENTS
(BY SRI GANGADHAR SANGOLLI, ADV.FOR R.1,
NOTICE TO R.2 )
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 9.11.06
PASSED IN MVC NO.1013/03 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.), MEMBER, ADDL. MACT, CHITRADURGA,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE
FOLLOWING:
PC: (B S INDRAKALA J.)
JUDGMENT
Appellants who are the claimants in MVC Nos.1013/03 have
filed this appeal seeking enhancement of compensation awarded by the
Civil Judge, Sr. Dvn., & MACT, Chitradurga vide Order dated
9.11.2006.
2. Appellants herein are said to be the children
and parents of the deceased Prabhakara while respondent
No.3 is staid to be the second wife and
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respondent No.4 is said to be the foster daughter of the deceased
Prabhakara and his second wife.
3. It is the case of the appellants that on 29.9.2003 at about 1.00
p.m. while the said Prabahakar/victim was travelling as paid passenger
in the bus bearing registration No.KA-14/B-5225 from Challakere to
Chitradurga. While the bus reached the Chitradurga I.B. bus stop, at
the time while the victim was getting down from the front door of the
bus, the driver, without noticing the same, all of a sudden in negligent
manner moved the bus, on account of which, the said Prabhakara fell
from the bus and suffered grievous injuries; during the course of
treatment in the hospital, he succumbed to the injuries so suffered by
him.
4. It is the further case of the appellants that the said
Prabhakara was aged about 49 years at the time of
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accident; he was working as a Police Head Constable drawing the
salary of Rs.8,000/- per month; he was hale and healthy; he had
chances of being promoted to higher post etc. and on account of his
untimely accidental death, the appellants are deprived of not only his
love and affection, but, also are deprived monetarily. It is further
contended that appellant no.1 is the unmarried daughter while
appellant no.2 is the married daughter and appellant no.3 is the son;
they are not having any avocation; all of them were depending on the
income of the deceased for their livelihood; the wife of the deceased
had pre-deceased him; the appellants are the only legal representatives
of the deceased etc.
5. The tribunal on considering the evidence led in held that the
accident occurred solely on account of the rash driving of the said bus
bearing Regn.No.KA-14/B-5225. The respondents have not challenged
the said finding and as such the cause of accident, so also the
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cause of death as held by the tribunal has become conclusive.
6. Further, it is seen that respondent nos. 4 and 5 herein filed
MVC No.53/04 claiming themselves as second wife and foster
daughter of the deceased Prabhakar and the tribunal on considering the
evidence led in, deemed it fit to dismiss their case vide common order
passed in both the cases dated 9.11.2006. The said order has also
become conclusive, as respondents 4 and 5 have not chosen to prefer
any appeal against the same.
7. Tribunal basing on the contents of Ex.P.12 - the salary
certificate and by considering only the net income at Rs.5515/-
per month and deducting 1/3 of the same towards the personal
expenditure of the deceased has deemed it fit to calculate the
3677/-
loss of income of the deceased at Rs. per month and by
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adopting the multiplier of 12, has awarded Rs. 5,29,488/- under the
head loss of dependency.
8. The claimants have chosen to file the salary certificate of the
deceased who was working as Police Constable and the same is
marked as Ex.P.12 and the contents of Ex.P.8 is excerpted hereunder
for ready reference.
This is to certify that Sri Prabhakar S., CHC-311,
Nayakanahatti Police Station was drawn pay and
allowances as on 6:2003 noted below:-
ALLOWANCES AMOUNT DEDUCTIONS AMOUNT
1. Pay 4825.00 1. GPF 300.00
2. D.A. 2654.00 2. KGID 265.00
3. HRA 193.00 3. LIC 441.00
4. Dress Allow 12.00 4. FA 200.00
5. Medical Allow 12.00 5. GPF Loan 625.00
6. C.C. 6. KGID Loan
7. Cy.Adv.
8. P.Tax 50.00
9. EGIS 120.00
10. PWD 193.00
Gross Total: 7709.00 Total Deduction 2194.00
Net Rs.5515.00
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9. With regard to assessment of loss of dependency in case
where victims are salaried persons, in a decision reported in SUNIL
SHARMA AND OTHERS –v- BACHITAR SINGH AND OTHERS,
reported in 2011 AVJ (Vol.III) 1441, their Lordships of the Apex
Court have observed as hereunder :
“ Based on the aforementioned judgments, we are of the
view that deductions made by the Tribunal on account of
HRA, CCA and medical allowance are done on an
incorrect basis and should have been taken into
consideration in calculation of the income of the
deceased. Further, deduction towards EPF and GIS
should also not have been made in calculating the income
of the deceased”.
10. While rendering the said decision, reference is also
made to earlier decisions of the Supreme Court rendered in
RAGHUVIR SINGH MATOLYA AND OTHERS –v- HARI
SINGH MALVIYA AND OTHERS reported in 2009 ACJ 1580
and in ASHA AND OTHERS –v- UNITED
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INDIA INSURANCE CO.LTD. AND ANOTHER reported in 2004
ACJ 448.
11. Thus, as per the said citation, apart from taking into
consideration the HRA, the other recoveries made under GPF, KGID,
LIC, FA, GPF (L), EGIS will also have to be taken into consideration.
Hence, while calculating the income of the deceased, apart from the
net income of Rs.5515/-, an additional amount of Rs.300/-, Rs.265/-,
Rs.441/- and Rs.120/- which were deducted towards payment of GPF,
KGID, LIC and EGIS respectively will have to be included. Thus, the
income of the deceased is taken as Rs.6,641/- as against Rs.5,515/-
taken by the Tribunal.
12. Thus, considering number of dependents, it is proper that out
of the said income ¼ is deducted towards the personal expenditure of
the deceased. Thus, by applying the multiplier of 13 as per the norms
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laid down in the case of Sarla Varma and Others vs Delhi Transport
Corporation and Another reported in 2009 ACJ 1298, the claimants
are entitled for compensation under the heading loss of dependency at
Rs.7,73,760/- (Rs.4960x12x13) .
Apart from the said amount, claimants are also entitled to be
compensated under other heads:
1) Towards transportation and funeral
Expenses Rs. 10,000/-
2) Towards loss of love and
Affection Rs. 25,000/-
Thus, the claimants are entitled to be compensated at
Rs.8,08,760/-.
Hence, the following:
ORDER
The above appeal is partly allowed. The impugned award dated
9.11.2006 passed in MVC No.1013/03 on the file of the Civil Judge
(Sr.Dn) & Addl. Motor Accident Claims Tribunal, Chitradurga is
hereby set-aside. Appellants 1 to 5 are entitled for compensation of
Rs.8,08,760/- with interest @ 6% P.A. from the date of petition till
realisation. Respondents 1 and 2 are jointly and severally liable to
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compensate the claimants. However, respondent no.1 shall indemnify
the owner of the vehicle respondent no.2.
Out of the said amount so awarded, appellant no.2 being married
is entitled for Rs.1,00,000/- with proportionate interest, appellant nos.1
and 3 are entitled to Rs.2,54,380/- each with proportionate interest and
appellants 4 and 5 are entitled to Rs.1 lakh each with proportionate
interest.
Out of the amount so apportioned, 50% of the same of each of
the appellants shall be invested in their respective names in fixed
deposit for a period of three years in any of the nationalised bank of the
choice of the appellants, with liberty to draw the interest that accrues
on the same periodically.
Sd/-
JUDGE
Sd/-
JUDGE
brn