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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR M.F.A. NO.8398 OF 2016 (MV-I) C/W M.F.A. NO.8397 OF 2016 (MV-D), M.F.A. CROB NO.87 OF 2017 IN M.F.A.NO.8397 OF 2016 (MV-D), M.F.A. CROB NO.88 OF 2017 IN M.F.A.NO.8398 OF 2016 (MV-I) IN M.F.A. NO.8398 OF 2016 BETWEEN: 1. THE MANAGING DIRECTOR NWKSRTC HAVERI DIVISION, BYADGI UNIT-581110 OWNER OF BUS BEARING NO.KA-42/F-1485. 2. THE CHAIRMAN INTERNAL SECURITY FUND KARNATAKA STATE ROAD TRANSPORT CORPORATION K.H. ROAD, BANGALORE-560027. 3. THE DEPOT MANAGER, CHITRADURGA DEPOT KSRTC, NEAR OLD ZILLA PANACHAYATH OFFICE, CHITRADURGA CITY-577501.
2 ALL THE APPELLANTS ARE REPRESENTED BY IT'S CHIEF LAW OFFICER, NWKRTC CENTRAL OFFICES, GOKUL ROAD HUBLI-580031. ... APPELLANTS (BY SRI. F.S. DABALI, ADV.,) AND: 1. G.J. LATHA
W/O LATE JAI KISHAN
AGED ABOUT 36 YEARS
SINCE DECEASED BY HER LR. 1(a) SANKALP J. GRANDHIM
S/O LATE JAI KISHAN
AGED ABOUT 15 YEARS
SINCE MINOR REP. BY HIS NATURAL
GUARDIAN AND GRANDFATHER G.K. NAGARAJ
S/O LATE G.M. KRISHNAIAH
AGED ABOUT 64 YEARS
R/AT. NO.445/1, 2ND MAIN, 2ND CROSS
VIDHYAPEETA LAYOUT, TYAGARAJANAGAR
BANGALORE SOUTH-560028. ... RESPONDENTS (BY SRI. B. PRAMOD, ADV., V/O DTD:16.2.2021 RESPONDENT IS DEAD AND R1(A) IS LR'S OF DECEASED RESPONDENT) - - - THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.09.2016 PASSED IN MVC NO.445/2014 ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL JUDGE, AWARDING COMPENSATION OF RS. 15,73,000/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL REALISATION.
3 IN M.F.A. NO.8397 OF 2016 BETWEEN: 1. THE MANAGING DIRECTOR NWKSRTC HAVERI DIVISION, BYADGI UNIT-581110 OWNER OF BUS BEARING NO.KA-42/F-1485. 2. THE CHAIRMAN INTERNAL SECURITY FUND KARNATAKA STATE ROAD TRANSPORT CORPORATION K.H. ROAD, BANGALORE-560027. 3. THE DEPOT MANAGER, CHITRADURGA DEPOT KSRTC, NEAR OLD ZILLA PANACHAYATH OFFICE, CHITRADURGA CITY-577501. ALL THE APPELLANTS ARE REPRESENTED BY IT'S CHIEF LAW OFFICER, NWKRTC CENTRAL OFFICES, GOKUL ROAD HUBLI-580031. ... APPELLANTS (BY SRI. F.S. DABALI, ADV.,) AND: 1. G J LATHA W/O LATE JAI KISHAN AGED ABOUT 36 YEARS. SINCE DECEASED RESPONDENT NOS.2 TO 4 ARE LR'S OF DECEASED RESPONDENT NO.1. (AMENDED AS PER ORDER DATED:16.02.2021) 2. SANKALP J. GRANDHIM S/O LATE JAI KISHAN AGED ABOUT 13 YEARS.
4 SINCE MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER I.E RESPONDENT NO.1 LATHA G.J. W/O LATE JAI KISHAN. 3. G.N. BHARATHI W/O G.K. NAGARAJ AGED ABOUT 57 YEARS. 4. G.K. NAGARAJ S/O LATE G.M. KRISHNAIAH AGED ABOUT 62 YEARS. ALL ARE RESIDING AT NO.445/1 2ND MAIN, 2ND CROSS, VIDYAPEETA LAYOUT TYAGARAJANAGAR, BANGALORE SOUTH-560028. ... RESPONDENTS (BY SRI. B. PRAMOD, ADV., FOR R1, R3 & R4 R2 MINOR REP. BY R1 V/O DTD:16.2.2021 R1 IS DECE, R2-R4 ARE THE LR'S OF R1) - - - THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED07.09.2016 PASSED IN MVC NO.444/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, IV MACT, CHITRADURGA, AWARDING COMPENSATION OF Rs.61,67,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION. IN M.F.A. CROB NO.87 OF 2017 IN M.F.A.NO.8397 OF 2016 BETWEEN: 1. G J LATHA W/O LATE JAI KISHAN AGED ABOUT 35 YEARS SINCE DECEASED BY HIS LRS APPELLANT NO.2 (AMENDED AS PER ORDER DATED 16.2.2021) 2. SHANKALP J. GRANDHIM S/O LATE JAI KISHAN
5 AGED ABOUT 13 YEARS SINCE MINOR REP. BY HIS NATURAL GUARDIAN AND MOTHER CROSS OBJECTOR NO.1 HEREIN. 3. G N BHARATHI W/O G K NAGARA AGED ABOUT 57 YEARS. 4. G K NAGARAJ S/O LATE G M KRISHNAIAH AGED ABOUT 62 YEARS. ALL ARE RESIDING AT NO.445/1 2ND MAIN, 2ND CROSS VIDHYAPEETHA LAYOUT TYAGARAJANAGAR BENGALURU SOUTH-560028. ... CROSS OBJECTORS (BY SRI. B. PRAMOD, ADV.,) AND: 1. MANAGING DIRECTOR NWKSRTC HAVERI DIVISION BYADGI UNIT-581106 OWNER OF BUS BEARING NO.KA-42-F-1485. 2. THE CHAIRMAN INTERNAL SECURITY FUND KARNATAKA STATE ROAD TRANSPORT CORPORATION K.H.ROAD, BENGALURU-560027. 3. THE DEPOT MANAGER CHITRADURGA DEPOT KSRTC NEAR OLD ZILLA PANCHAYATH OFFICE, CHITRADURGA-577501. ... RESPONDENTS (BY SRI. F.S. DABALI, ADV.,) - - -
6 THIS MFA CROB IN MFA NO.8397/2016 IS FILED U/O 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 7.9.2016 PASSED IN M.V.C.No.444/2014 ON THE FILE OF THE I SENIOR CIVIL JUDGE & IV MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. CROB NO.88 OF 2017 IN M.F.A.NO.8398 OF 2016 BETWEEN: 1. G.J. LATHA
W/O LATE JAI KISHAN
AGED ABOUT 35 YEARS
SINCE DECEASED BY HER LR OF CROSS OBJECTIVE. 1(a) SANKALP J. GRANDHIM
S/O LATE JAI KISHAN
AGED ABOUT 13 YEARS
SINCE MINOR REP. BY HIS NATURAL
GUARDIAN AND GRANDFATHER G.K. NAGARAJ
R/AT. NO.445/1, 2ND MAIN, 2ND CROSS
VIDHYAPEETA LAYOUT, TYAGARAJANAGAR
BANGALORE SOUTH-560028.
(AMENDED AS PER ORDER DATED 16.2.2021) ... CROSS OBJECTORS (BY SRI. B. PRAMOD, ADV.,) AND: 1. MANAGING DIRECTOR NWKSRTC HAVERI DIVISION BYADGI UNIT-581106 OWNER OF BUS BEARING NO.KA-42-F-1485. 2. THE CHAIRMAN INTERNAL SECURITY FUND KARNATAKA STATE ROAD TRANSPORT CORPORATION K.H.ROAD, BENGALURU-560027. 3. THE DEPOT MANAGER CHITRADURGA DEPOT
7 KSRTC NEAR OLD ZILLA PANCHAYATH OFFICE, CHITRADURGA-577501. ... RESPONDENTS (BY SRI. F.S. DABALI, ADV.,) - - - THIS MFA CROB IN MFA NO.8398/2016 IS PASSED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 7.9.2016 PASSEDON M.V.C.No.445/2014 ON THE FILE OF THE 1ST SENIOR CIVIL JUDGE AND IV MACT AT CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE M.F.As. CONNECTED WITH M.F.A. CROBS COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: COMMON JUDGMENT
MFA Crob No.88/2017 has been filed by the injured claimant and MFA Crob No.87/2017 has been filed by the legal representatives of the deceased Jai Kishan seeking enhancement of the amount of compensation, whereas, MFA No.8397/2016 and MFA No.8398/2016 have been filed by the North West Karnataka State Road Transport Corporation (hereinafter referred to as ‘the Corporation’ for short) under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for short), being aggrieved by the judgment dated 07.09.2016 passed by the Motor Accident
8 Claims Tribunal (hereinafter referred to as ‘the Tribunal’ for short) in MVC No.444/2014 and MVC No.445/2014 respectively. Since, the appeals as well as the cross objections arise out of the same accident and are directed against the common judgment, they were heard analogously and are being decided by this common judgment.
Facts leading to the filing of these appeals as well as cross objections briefly stated are that on 06.04.2014, the injured claimant GJ Latha and the deceased Jai Kishan sustained injuries in the accident which occurred near the JMIT Circle, Chitradurga when they were traveling in a car bearing Registration No.KA-01-MB-5197, due to the negligence of the driver of the NWKSRTC bus bearing Registration No.KA-42-F-1485 (hereinafter referred to as ‘the offending vehicle’ for short). On account of the injuries sustained by them in the accident, the deceased succumbed to the same, whereas, the injured claimant was treated as an inpatient at Hosmat Hospital and Sita Batheja Speciality Hospital where she was an inpatient for about 64 days. Thereupon, the injured claimant as well as the legal
9 representatives of the deceased filed petitions under Section 166 of the Act seeking compensation for the loss of income sustained on account of the injuries and for the loss of dependency sustained on account of death of the deceased due to the accident which occurred solely due to the negligence of the driver of the offending vehicle respectively. The Respondent NWKSRTC filed the written statement, in which inter alia, the petitions were resisted on the ground that the accident wholly on account of the negligence of the deceased in driving the car in a rash and negligent manner.
On the basis of the pleading of the parties, the Tribunal, framed the issues and recorded the evidence. The injured claimant examined herself as PW1, Sudhakanth (PW2), Anjaneya (PW3), Chandan (PW4), Ananditha (PW5) and got marked Ex.P1 to Ex.P30 respectively. The respondents examined KM Prakash (RW1) and got marked documents namely Ex.R1 to Ex.R9 on their behalf. The Tribunal, by the impugned judgment, held that the accident occurred solely due to the negligence of the driver of the offending vehicle and that the injured claimant as well as the
10 deceased sustained injuries in the accident whereas, the deceased succumbed to the same. The Tribunal further held that the injured claimant and the legal representatives were held entitled to a Rs.15,73,000/- and Rs.61,67,000/- respectively along with an interest of 8% per annum, to be paid by the NWKSRTC. Being aggrieved, these appeals as well as cross objections have been filed.
Learned counsel for the corporation submitted that the Tribunal in M.V.C.No.444/2014 erred in assessing the income of the deceased. In this regard, it is submitted that the Tribunal in M.V.C.No.444/2014 erred in not deducting income tax and professional tax from the income of the deceased and that only the basic pay as contained in Ex.P27 Pay Slip. It is further submitted that the Tribunal in M.V.C.No.444/2014 erred in considering the wife of the deceased to be dependent on the income of the deceased as she was earning and had an independent source of income. It is also submitted that the Tribunal in M.V.C.No.445/2014 erred in applying the multiplier of '17' instead of '16' when the age of the injured claimant as contained in Ex.P28 Pan
11 Card clarifies the age of the injured claimant to be 33 years. It is also submitted that the instant appeal arising in M.V.C.No.445/2014 is not maintainable at the instance of the legal representatives of the deceased as the injured claimant has passed away during the pendency of this appeal. It is urged that the amount of compensation awarded under the head 'Future Prospects' is not sustainable as the same has already been awarded under the head 'Loss of earning Capacity'. It is urged that the amount of interest awarded by the Tribunal is on the higher side.
On the other hand, the learned counsel for the claimants in M.V.C.No.444/2014 that the Tribunal erred in assessing the income of the deceased and that the amount of the compensation awarded under the conventional heads is on the lower side and the same deserves to be enhanced suitably. It is further submitted that in M.V.C.No.445/2014 the Tribunal erred in not awarding any compensation towards loss of income during laid up period and that the extent of permanent disability assessed by the Tribunal is on the lower side when Ex.P24 discloses that the claimant had sustained
12 disability to the extent of 24% to the whole body. It is urged that the amount of compensation awarded under the other heads are on the lower side considering the nature of the injuries sustained by the claimant.
We have considered the submissions made by learned counsel for the parties and have perused the record. It is not in dispute that the accident occurred solely due to the negligence of the driver of the offending vehicle and that the injured claimant as well as the deceased sustained injuries in the accident whereas, the deceased succumbed to the same. The only issue which arises for our consideration in these appeals are with regard to the quantum of compensation. Firstly, we may deal with the quantum of compensation in M.V.C.No.444/2014. Though, the contents of the salary certificates produced by the claimants, have not been proved by examining the author of the said documents, the Tribunal considering the age, qualification and post of the deceased, has assessed the income of the deceased at Rs.30,000/- per month. The claimants have adduced the income tax returns of the deceased for the Assessment Years
13 2012-13, 2013-14 and 2014-15 as Ex.P26. The income tax return for the assessment year 2012-13 filed on 31.05.2012 discloses the annual income of the deceased to be Rs.4,16,859/- and the income tax return for the Assessment Year 2013-14 filed on 31.05.2013 discloses the annual salary of the deceased to be Rs.5,53,398/-. The income tax return for the Assessment Year 2014-15 cannot be relied upon as the same has been filed subsequent to the date of the accident. The aforesaid returns are further corroborated by the pay slips of the deceased at Ex.P27.
Therefore, on the basis of preponderance of evidence and on the basis of Ex.P26, we assess the income of the deceased at Rs.5,35,391/- per annum after deducting Rs.15,607/- towards income tax and Rs.2,400/- towards professional tax respectively. To the aforesaid amount, 40% is to be added towards future prospects, which works out to Rs.7,49,547/- per annum. The wife and mother of the deceased are considered to be dependant on the income of the deceased. The mere fact that the wife is an earning person does not by itself lead to an inference that the wife
14 was not dependant on the income of the deceased. Therefore, 1/3rd has to be deducted from the aforesaid amount towards personal expenses of the deceased. Thus, the annual income of the deceased comes to Rs.4,49,698/-. Therefore, the claimants are held entitled to Rs.79,95,168/- (Rs.4,49,698/- x 16) under the head 'Loss of dependency'.
In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,60,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.81,85,168/-. The aforesaid total amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the
15 payment is made. To the aforesaid extent judgment passed by the Tribunal in M.V.C.No.444/2014, is modified.
Now we may advert to the quantum of compensation in M.V.C.No.445/2014. The Supreme Court in the case of THE ORIENTAL INSURANCE COMPANY LIMITED VS. KAHLON @ JASMAIL SINGH KAHLON (DECEASED) IN CIVIL APPEAL NO.4800/2021 DATED 16.08.2021 has held as follows:
"We are of the opinion that maxim 'actio personalis moritur cum persona' on which Section 306 of the Indian Evidence Act (sic Indian Succession Act) is based cannot have an applicability in all actions even in an case of personal injuries where damages flows from the head or under the head of loss to the estate. Therefore, even after the death of the injured claimant, claim petition does not abate and right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, which would include personal expenses incurred on the treatment and other claim related to loss to the estate."
Therefore, in view of the aforesaid enunciation of law by the Supreme Court, the instant appeal is held to be maintainable at the instance of the legal representatives of the injured claimant. 10. The Supreme Court in RAJKUMAR VS AJAY KUMAR AND ANR (2011) 1 SCC 343 has laid down the parameters for assessing the functional disability of the claimant for awarding compensation under the head 'Loss of Earning Capacity' which is reproduced below for the facility of reference: "13. We may now summarize the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent
17 of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors." In the instant case, Ex.P24 Disability certificate discloses that the claimant has sustained permanent physical disability to the extent of 24% to the whole body. The Tribunal, after taking into consideration the avocation of the claimant viz., Executive Assistant at WIPRO, Bangalore and the difficulty faced by the claimant on account of the injuries viz., inability to climb, squat, sit or stand, has assessed the functional disability of the claimant at 15% to the whole body. In view of the law laid down by the Supreme Court in RAJKUMAR SUPRA, we find that the assessment of Tribunal with regard to the functional disability sustained by the claimant to be justified and reasonable considering the nature of the
18 employment of the claimant as well as the disability sustained by her on account of the injuries.
The Tribunal has committed an error in applying the multiplier of '17' instead of '16' as the injured claimant was aged about 34 years as per Ex.P28 PAN card. Therefore, the amount of compensation awarded under the head 'Loss of earning capacity' is reassessed at Rs.10,08,000/- (Rs.35,000 x 12x 16 x 15%). The Tribunal has not awarded any compensation towards the loss of income during laid up period. Therefore, the claimant is held entitled to Rs.1,40,000/- (Rs.35,000/- x 4 months) under the head 'Loss of income during laid up period'. The amount of compensation awarded under the other heads are maintained as the same are just and reasonable. Thus, the injured claimant is held entitled to a total compensation of Rs.16,50,000/-. The aforesaid total amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Tribunal in
19 M.V.C.No.445/2014, is modified. The amount in deposit in the appeals, if any, is to be transmitted to the Tribunal.
Accordingly, the appeals as well as the cross objections are partly allowed. Sd/- JUDGE Sd/- JUDGE ss