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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST 2020
PRESENT
THE HON’BLE MR. JUSTICE ALOK ARADHE
AND
THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD
M.F.A. NO.577/2016 C/W M.F.A. NO.2319/2016, M.F.A. NO.2320/2016, M.F.A. NO.576/2016 (MV)
M.F.A. NO.577/2016 BETWEEN:
THE DIVISIONAL CONTROLLER K.S.R.T.C. TUMKUR DIVISION TUMKUR. NOW THROUGH CHIEF LAW OFFICER KSRTC, BANGALORE.
... APPELLANT (BY SRI. NAGARAJA K, ADV.,)
AND:
SMT. K.N. RAMYA W/O LATE M. HARISH AGED ABOUT 30 YEARS R/AT C/O. SHIVANANDA M.C. KALLESHA NILAYA 1ST MAIN, "D" CROSS NRUPATHUNGA EXTENSION, TUMKUR.
PRESENT ADDRESS: SMT. RAMYA, W/O. LATE HARISH C/O. BASAPPA NEAR ERANI BANGALE GOVT. COLLEGE ROAD, HASSAN. ... RESPONDENT (BY SRI. SHRIPAD V. SHASTRI, ADV.) - - -
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN MVC NO.1067/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, HASSAN, THE PETITIONER IS ENTITLED FOR TOTAL COMPENSATION OF RS.13,41,000/- WITH INTEREST @ 6% P.A. ON RS.12,61,000/- FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. NO.2319/2016 BETWEEN:
K.N. RAMYA W/O LATE M. HARISH AGED ABOUT 30 YEARS.
SOHAN THEJ S/O LATE HARISH AGED ABOUT 6 YEARS APPELLANT BEING MINOR REP. BY GUARDIAN MOTHER RAMYA
SUSHEELAMMA W/O MAHADEVAPPA AGED ABOUT 57 YEARS.
ALL ARE C/O SHIVANANDA M.C. KALLESHA NILAYA, 1ST MALIN D CROSS, NRUPATHUNGA EXTENSIONT TUMKUR
PRESENT ADDRESS: RAMYA W/O LATE HARISH C/O BASAPPA, NEAR ERANI BANGALE GOVERNMENT COLLEGE ROAD, HASSAN-573201. ... APPELLANTS
(BY SRI. SHRIPAD V. SHASTRI, ADV.,)
AND:
DIVISIONAL CONTROLLER KSRTC, TUMKUR DIVISION TUMKUR-572101. ... RESPONDENT (BY SRI. K. NAGARAJA ADV.) - - -
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN MVC NO.1070/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.2320/2016 BETWEEN:
RAMYA W/O LATE HARISH AGED ABOUT 30 YEARS C/O SHIVANANDA M.C. KALLESHA NILAYA, IST MAIN D CROSS, NRUPATHUNGA EXTENSION TUMKUR.
PRESENT ADDRESS: RAMYA, W/O LATE HARISH C/O BASAPPA NEAR ERANI BANGALE GOVERNMENT COLLEGE ROAD HASSAN-573201. ... APPELLANT (BY SRI. SHRIPAD V. SHASTRI, ADV.,)
AND:
DIVISIONAL CONTROLLER K.S.R.T.C. TUMKUR DIVISION TUMKUR-572101.
... RESPONDENT (BY SRI. NAGARAJ, ADV.) - - -
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN MVC NO.1067/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, ADDL. MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
M.F.A. NO.576/2016 BETWEEN:
THE DIVISIONAL CONTROLLER K.S.R.T.C, TUMKUR DIVISION TUMKUR.
NOW THROUGH CHIEF LAW OFFICER KSRTC, BANGALORE. ... APPELLANT (BY SRI. NAGARAJA K, ADV.,)
AND:
SMT. K.N. RAMYA W/O LATE M. HARISH AGED ABOUT 30 YEARS.
SRI. SOHAN THEJ S/O LATE M. HARISH AGED ABOUT 6 MONTHS. SINCE MINOR REP BY GUARDIAN MOTHER RAMYA.
SMT. SUSHEELAMMA W/O SRI. MAHADEVAPPA AGED ABOUT 57 YEARS.
ALL ARE C/O SHIVANANDA M.C. KALLESHA NILAYA 1ST MAIN, D-CROSS NRUPATHUNGA EXTENSTION, TUMKUR.
PRESENT ADDRSSS: SMT. RAMYA W/O LATE HARISH C/O BASAPPA NEAR ERANI BANGALE GOVT. COLLEGE ROAD, HASSAN. ... RESPONDENTS (BY SRI. SHRIPAD V. SHASTRI, ADV., FOR R1 TO R3) - - -
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED IN MVC NO.1070/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDL. MACT, HASSAN, AWARDING COMPENSATION OF RS.92,13,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.
THESE M.F.As. COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.577/2016 which arises out of a claim for injuries sustained in an accident as well as M.F.A.No.576/2016, which arises from a death claim have been filed by Karnataka State Road Transport Corporation (hereinafter referred to as 'the KSRTC' for short), whereas M.F.A.No.2319/2016 and 2320/2016 under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) have been filed by the claimants seeking enhancement of the amount of compensation awarded by the Claims Tribunal. Since, all the appeals arise out of the same accident and have been decided by a common judgment by
the Tribunal, they were heard analogously and are being decided by this common judgment.
Facts leading to filing of these appeals briefly stated are that on 20.04.2014 at about 2.30 p.m., injured Ramya along with deceased Harish were traveling as pillion riders in motor cycle bearing registration No.KA06-ET-1021. When they reached near Heggare Bus Stand, the driver of the KSRTC bus bearing registration No.KA06-F-609 who was proceeding from Tumkur towards Gubbi drove the bus in a rash and negligent manner suddenly turned the bus and dashed against the motor cycle of deceased Harish who was coming from the left side and caused the accident. As a result of aforesaid accident, injured Ramya sustained grievous injuries and Harish ultimately succumbed to the injuries.
The injured claimant viz., Ramya filed M.V.C.No.1067/2014 inter alia on the ground that the accident took place on account of rash and negligent driving of the driver of the bus. It was further pleaded that the injured claimant at the time of the accident was employed in
FESTO company and used to earn Rs.33,124/- and was aged about 29 years. It was also pleaded that she sustained fracture of humerous bones and other simple injuries. Accordingly, the compensation was claimed to the tune of Rs.1 Crore. Similarly, the dependants of deceased Harish filed M.V.C.No.1070/2014 in which inter alia it was pleaded that deceased at the time of accident was aged about 39 years and was employed in Lee Boy Construction India Ltd., and his monthly salary was Rs.64,747.20/-. It was also pleaded that accident took place on account of rash and negligent driving of the driver of the bus. Accordingly, the compensation of Rs.2 Crores along with interest at the rate of 10% was claimed. The respondent-Corporation in the written statement denied the averments made in the claim petition. It was pleaded that there was no rash and negligent driving of the bus by its driver. The age, income and occupation of the deceased as well as injured was also denied. It was also pleaded that the claim of the claimants is exorbitant and excessive.
The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The claimants in both the cases examined 7 witnesses viz., Ramya (PW1), Ramya (PW2), Ramya (PW3), Susheelamma (PW4), Thippeswamy (PW5), Manohar (PW6) and M.Chethan (PW7) and exhibited as many as 45 documents viz., Ex.P1 to Ex.P45. The Corporation examined one Yogish as RW1 and did not exhibit any document. The Tribunal vide impugned judgment dated 30.10.2015 inter alia held that the accident took place on account of rash and negligent driving of the driver of the bus. It was further held that the injured Ramya is entitled to compensation to the tune of Rs.13,41,000/- and she shall be entitled to interest at the rate of 6% per annum on an amount of Rs.12,61,000/- i.e., after deduction of the amount of compensation for future treatment. The dependants of the deceased Harish were held entitled to compensation to the tune of Rs.92,13,000/- along with interest at the rate of 6% per annum from the date of filing of the petition till realization of the amount. Being aggrieved, these appeals have been filed by the Corporation as well as the claimants.
Learned counsel for the Corporation in M.F.A.No.577/2016 submitted that the Tribunal ought to have appreciated that the injured claimant viz., Ramya had not filed any medical certificate with regard to the permanent disability sustained by her and was on leave for a period of one month only. It was further submitted that the injured claimant continued in the same job and therefore, there was no loss of income to her on account of injuries sustained in the accident and the Tribunal grossly erred in awarding a sum of Rs.6,76,000/- on account of loss of future income. It is further submitted that the Tribunal grossly erred in awarding a sum of Rs.50,000/- each under the head of disfigurement as well as shortening of leg. In support of the submission that the injured claimant is not entitled to any amount on account of loss of future income, reliance has been placed on decisions of this court in ‘SRI SUBASH Vs. THE NEW INDIA ASSURANCE CO. LTD’ ILR 2010 KAR 2439 and in ‘DIVISIONAL CONTROLLER, NWKRTC Vs. MAHADEV’ rendered in M.F.A No. 24862/2012 dated 05.11.2019.
Learned counsel for the Corporation in M.F.A.No.576/2016 has submitted that the Tribunal ought to have deducted the amount of income tax after addition of an amount towards future prospects. It is further submitted that an amount of Rs.800/-, Rs.1250/-, Rs.21,000/- i.e., the amount payable to the deceased Harish towards Conveyance and medical reimbursement and special allowance respectively ought to have deducted from his income. It is further submitted that the Tribunal ought to have deducted an amount of professional tax also. Therefore, the amount of compensation deserves to be suitably reduced.
On the other hand, learned counsel for the claimant in M.F.A.No.2320/2016 submitted that compensation in case of an injury has been awarded after ascertaining the loss of earning capacity. It is further submitted that the claimant had examined PW6 viz., Dr.K.N.Manjunath who had stated in his evidence that claimant has sustained permanent disability to the extent of 30%. However, there has been no cross examination on behalf of the respondent on this point. Therefore, disability of
claimant ought to have been assessed at 30% to the whole body. The Tribunal grossly erred in assessing the permanent disability at 10%. It is further submitted that from evidence of PW7-M.Chethan viz., the employer has stated in his evidence that she remained absent for a period of 3 to 4 months and therefore, the Tribunal grossly erred in awarding the amount under the head of loss of earning during the period of treatment only for one month. It is further submitted that the right leg of the injured has been shortened and therefore, the compensation deserves to be enhanced suitably.
Learned counsel for the claimant in M.F.A.2319/2016 submitted that the Tribunal grossly erred in deducting a sum of Rs.6,655/- on account of income tax and professional tax from the monthly salary of the deceased and from perusal of Form-16, it was evident that only a sum of Rs.2,766/- was being deducted on account of income tax. It is further submitted that the deceased at the time of accident was aged about 39 years and 50% of the amount ought to have been added on account of future prospects. It is also
submitted that the deceased had a bright future. In this connection, our attention has been invited to Ex.P4 i.e., an offer by another company by which the deceased was offered salary of Rs.12,01,376/-. It is further submitted that in view of law laid down by the Supreme Court in ‘VIMAL KANWAR Vs. KISHORE DAN & ORS’, (2013) 7 SCC 476, the tax deducted at source has to be taken into account while assessing the income of the deceased. It is also submitted that the amount of compensation deserves to be enhancement suitably.
We have considered the submissions made by learned counsel on both the sides and have perused the record. The only issue which arises of consideration in this batch of appeals is with regard to quantum of compensation. It is well settled in law that all injuries and assessments of disability do not impact the earning capacity and the disability has to be seen in the context of particular, occupation or calling in which the victim is engaged in. Therefore, the attempt has to be made to elicit as to how particular percentage of disability has affected the job that
the person was doing and if not suitable for the same job as to what other type of employment he/she is fit for in the changed circumstances and what is likely to be loss of income. [See: B.KOTHANDAPANI VS. TAMIL NADU STATE TRANSPORT CORPORATION, 2011 (6) SCC 420 and ‘K.SURESH VS. NEW INDIA ASSURANCE CO. LTD.,’, (2012) 10 SCALE 16].
In the backdrop of aforesaid well settled legal position, the facts of the case in M.F.A.No.577/2016 and M.F.A.No.2320/2016 may be examined. The claimant-Ramya in her evidence has not stated that on account of injuries / disability sustained by her in the accident, her earning capacity in any manner has been affected. It is also pertinent to mention her that PW7-M.Chethan the employer of the injured claimant in his evidence has stated that she is being paid the same salary, which she was paid prior to the accident even though she has been assigned a different job. In other words, from the evidence on record it is axiomatic that even though the injured claimant has sustained disability, she has not suffered any loss of income.
Therefore, the injured-claimant is not entitled to any amount on account of loss of future income. However, it is pertinent to mention here that Dr.K.N.Manjunath (PW6) has stated that she has suffered permanent disability to the extent of 30% and the employer M.Chethan (PW7) has also sated that on account of injuries sustained in the accident, the claimant could not attend to her duties for a period of approximately four and half months. However, the Tribunal has awarded a sum of Rs.33,000/- on account of loss of income during the period of treatment. Therefore, the claimant is held entitled to loss of income for the period of treatment i.e., four and half months to the tune of Rs.1,48,500/-. The claimant is not able to sit properly and walk properly. Therefore, in the facts of the case, we find that an amount of Rs.15,000/- awarded on account of loss of amenities is on the lower side and the same is enhanced to Rs.60,000/-. Admittedly, from evidence of Dr.K.N.Manjunath (PW6), it is evident that the claimant has remained inpatient for a period of 14 days and could not attend the duties for four and half months. Therefore, amount of Rs.5,000/- each on account of food, nourishment and attendant charges awarded to her is on the
lower side and the same is enhanced to Rs.15,000/- each. Thus, the injured claimant is held entitled to a sum of Rs.8,45,000/-. The aforesaid amount shall carry interest at the rate of 6% from the date of filing of the petition till payment is made.
Now we may deal with M.F.A.No.576/2016 and M.F.A.No.2319/2016. The deceased-Harish was employed as Manager in Lee Boy Construction India Ltd. From perusal of Ex.P38, it is evident that his monthly income was Rs.64,747.20/-, which is rounded upto Rs.64,748/-. Since, the deceased at the time of accident was aged about 39 years, therefore, in view of law laid down by the Supreme Court in ‘NATIONAL INSURANCE COMPANY LTD V. PRANAY SETHI’, AIR 2017 SC 5157, 40% of the amount is required to be added towards the future prospects of the deceased. Thus, the monthly income salary of the deceased comes to Rs.90,647/-. From perusal of Ex.P32 it is evident that a sum of Rs.800/- was being paid towards conveyance allowance. The aforesaid amount has to be deducted from the salary of the deceased. Therefore, the monthly income
comes to Rs.89,847/-. From perusal of Form-16, it is evident that an amount of Rs.2,766/- was being deducted on account of income tax from the salary of the deceased, which was taken at Rs.64,748/-. Thus, if the salary of the deceased is taken at Rs.89,847/-, the amount of monthly income tax which will be deductible comes to Rs.3,871/- and from the aforesaid amount a sum of Rs.200/- has to be deducted towards professional tax. Therefore, monthly income of the deceased is assessed at Rs.85,776/-. Out of the aforesaid amount, 1/3rd has to be deducted on account of personal expenses as the number of dependants is 3. Thus, the amount comes to Rs.57,184/-. Therefore, the claimants are held entitled to a sum of Rs.1,02,93,120/-. In view of law 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.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020, the claimants are held entitled to Rs.40,000/- each on account of loss of consortium as well as loss of love and affection. In addition,
they are held entitled to a sum of Rs.30,000/- on account of loss of estate and funeral expenses. Thus, the claimants are held entitled to a sum of Rs.1,04,43,120/- as compensation. Needless to state that the aforesaid amount shall carry interest at the rate of 6% per annum from the date of filing of the petition till payment is made. To the aforesaid extent the judgment of Claims Tribunal is modified. The amount in deposit shall be transmitted to the Claims Tribunal for disbursement to the claimants.
In view of preceding analysis, the appeals are disposed of.
Sd/- JUDGE
Sd/- JUDGE