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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2018 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT MFA No.8039 OF 2014 (MV) C/W MFA CROB No.33 OF 2015
IN M.F.A.No.8039/2014 (MV)
BETWEEN
THE DIVISIONAL CONTROLLER, K.S.R.T.C. MYSORE DIVISION, BANNIMANTAPA, MYSORE NOW THROUGH THE CHIEF LAW OFFICER, KSRTC, BANGALORE.
... APPELLANT
(BY SRI. NAGARAJA K, ADVOCATE)
AND
SRI K.V. RANGARAJU, S/O LATE VARADA TATACHAR, AGED ABOUT 60 YEARS,
SMT.R.SINDHU D/O SRI.K.V.RANGARAJU, AGED ABOUT 27 YEARS,
BOTH ARE RESIDING AT D.NO.51, 1ST MAIN, 5TH CROSS, RAILWAY LAYOUT, VIJAYANAGARA, MYSORE CITY.
SRI.ASHWATH S/O NARASIMHEGOWDA,
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2 AGED ABOUT 44 YEARS, R/AT NO.640, E & F BLOCK, 4TH CROSS, RAMAKRISHNANAGARA, MYSORE CITY. ... RESPONDENTS
(BY SRI. P NATARAJU FOR R1 & 2, NOTICE TO R3 IS DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.08.2014 PASSED IN MVC NO.811/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, MACT, MYSORE, AWARDING COMPENSATION OF RS.14,28,380/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA CROB.33/2015
K.V. RANGARAJU, AGED ABOUT 61 YEARS, S/O LATE VARADA TATACHAR,
SMT.R.SINDHU
AGED ABOUT 28 YEARS,
D/O K.V.RANGARAJU,
CROSS OBJECTORS No.1 AND 2 ARE
R/AT D.No.51, 1ST MAIN, 5TH CROSS,
RAILWAY LAYOUT, VIJAYANAGARA,
MYSORE CITY – 570 017.
... CROSS OBJECTORS (BY SRI. P NATARAJU FOR CROSS OBJECTORS)
AND
ASHWATH AGED ABOUT 45 YEARS,
S/O NARASIMHEGOWDA, R/AT NO.640, E & F BLOCK, 4TH CROSS, RAMAKRISHNANAGARA, MYSORE CITY – 570 017.
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3 2. THE DIVISIONAL CONTROLLER, K.S.R.T.C, MYSORE DIVISION, BANNIMANTAPA, MYSORE
... RESPONDENTS
(BY SRI.K. NAGARAJA, ADV. FOR R2 (VAKALATH NOT FILED) NOTICE TO R1 IS DISPENSED WITH)
THIS MFA.CROB IN MFA NO.8039/2014 FILED U/O 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:28.08.2014 PASSED IN MVC NO.811/2013 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MYSORE, IN CONCURRENT CHARGE OF ADDITIONAL COURT OF SMALL CAUSES, MYSORE, PARTLY ALLOWING THE CLAIM PETITIOIN FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA CONNECTED WITH MFA CROB. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal in MFA No.8039/2014 by the owner of the vehicle i.e., KSRTC and the cross objections in MFA Crob. No.33/2015 by the claimants lay a challenge to the judgment and award dated 28.08.2014 made by the MACT, Mysuru, allowing MVC No.811/2013 whereby, a compensation of Rs.14,28,380/- with interest at the rate
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4 of 6 % per annum has been awarded. The challenge by the owner of the offending vehicle, i.e., KSRTC is on the ground of excessive compensation and the challenge by the claimants is on the ground of inadequacy of compensation.
The brief facts of the case stated are:- (a) Smt.Geetha Bai First Division Assistant in Mysuru Court, being the victim of the vehicular accident involving a KSRTC bus bearing registration No.KA09-F- 4745 died at the spot on 08.04.2013 at Mysuru. Her widower and her the then unmarried daughter had filed the claim petition in MVC No.811/2013 which was stoutly opposed by the KSRTC by filing the Written Statement.
To prove their claim, the 1st claimant widower K.V. Rangaraju was examined as PW.1 and in his evidence, 11 documents came to be marked as per exhibits P1 to P11 which included the police papers, RTO papers, medical papers and the salary certificate. To
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5 establish the resistance form the side of the vehicle owner, one Sri.Ashwath, the driver of the offending vehicle was examined as RW.1 and in his evidence, compensation payment receipts came to be collectively marked as exhibit R1.
The MACT looking to the pleadings of the parties and after assessing the evidentiary material on record, has entered the judgment and award that are in challenge both by the owner of the vehicle and the claimants.
Sri.K. Nagaraja, the panel counsel for the appellant- KSRTC firstly contends that the first claimant widower himself being employed in a different place admittedly, cannot be a dependent of the deceased and therefore, no compensation could have been awarded under the head ‘loss of dependency’; secondly, he submits that the MACT grossly erred in deducting from the salary only 1/3rd as per personal expenses when it ought to have been 3/4th in view of the Division Bench
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6 judgment of this court in the case of A. Manavalagan V/s A. Krishnamurthy and Others reported in ILR 2004 KAR 3268; thirdly, the MACT could not have treated the second claimant, i.e., married daughter of the deceased as the dependent and therefore, no compensation could have been awarded under the head ‘loss of dependency’; lastly, he points out that the award is flawsome, since the compensation of Rs.1,55,000/- is awarded under the ‘conventional heads’ which is far in excess of what is prescribed by the Apex Court in Pranay Sethi’s case reported in 2017 SC 5157, wherein the maximum is stated to be Rs.70,000/-.
Sri.P.Nataraju, the learned counsel for the claimants, pressing his Cross Objections, per contra, contends that the MACT has grossly erred in taking Rs.23,000/- to be the salaried income of the deceased when it ought to have taken the gross salary i.e., Rs.34,000/-; the Tribunal erred in not adding 15 % to the established salary in view of Pranay Sethi’s case and lastly, the Tribunal erred in invoking the doctrine of
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7 contributory negligence to the extent of 10 % attributable to the deceased victim for the happening of the accident in question.
I have heard the learned counsel for the KSRTC and the learned counsel for the claimants; I have perused the appeal papers and also the original papers from the Lower Court Records. 8. The contention of Sri.K. Nagaraja, the learned panel counsel for the KSRTC that the employed widower of the deceased victim is not a dependent and therefore, no compensation could have been awarded under the head ‘loss of dependency’ pales into insignificance since the second claimant the daughter of the deceased is there in the array of parties. The second contention that the daughter having been married even though subsequent to the accident, could not have been the dependent, is liable to be rejected since at the time of accident, she was not married, and the right to compensation for the loss of dependency accrues by virtue of and on the date of accident.
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The learned panel counsel for the KSRTC submits that the Tribunal ought to have taken only 1/4th of the income of the deceased since her widower, the first claimant was also admittedly in the employment, for the purpose of working out the compensation under the head ‘loss of dependency’. He banks upon para 21 of the judgment in Manavalagan’s case, which reads as under: “Para 21: We will now return to the facts of this case. In this case, as noticed above, the husband was living in Coimbatore and the wife was living near a place of her work (Tiruppur). Therefore, the husband (Appellant) had a separate establishment at Coimbatore and was living from his income. The wife (deceased) was having a separate establishment at Sowripalyam near Tiruppur and was living from her income. As the parties were residing at different places and were supporting themselves from their respective income, as noticed above, the question of loss of dependency will not arise. In such circumstances, the amount spent towards the expenses of living and personal expenses of the deceased can safely be taken as three-fourth of her income. The balance of one-fourth will be her saving or contribution to the common saving pool.”
The learned counsel for the claimants stoutly submits that it has long been held by the Halsbury in
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9 the case of Quinn V/s Leathem (1901) VKHL 2 that a judgment is an authority for the proposition that it actually lays down in the fact matrix of the case and not for all that logically follows therefrom. A ratio of a judgment has to be understood keeping in view the essential facts of the case. Stating so, the claimants counsel contends that the judgment in Manavalagan’s case is not invokable for the reason that the fact matrix of the said case are much different from that of the case at hands.
In Manavalagan’s Case, both the husband and the wife were employed in and residing at two distinct and distant places, whereas in the present case, though both the husband and wife were employed in two different establishments, the distance between them being travellably short, they were sharing the common abode. Therefore, the said decision does not come to the aid of the appellant-KSRTC. Consequently, one half deduction has to be made from the salary of the
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10 deceased, as rightly contended by the counsel for the claimants.
Sri.K. Nagaraja, the panel counsel further submits that even otherwise also, the widower of the deceased himself being in the employment, does not have right to seek compensation under the head ‘loss of dependency’. The counsel for the claimants stoutly answers that even if the widower is left out, still the 2nd claimant being the unmarried daughter at the time of the accident, is entitled to the compensation. There is force in this submission and therefore, the contention advanced on behalf of the appellant-KSRTC is rejected.
Sri.K.Nagaraja, learned counsel next contends that the MACT ought to have taken one half of the salary as the expenses, whereas it has wrongly taken only 1/3rd by way of deduction from the salary of the deceased. The counsel for the claimants though initially opposed the same, now fairly concedes that it
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11 could be taken as one half and accordingly, the same is taken.
Lastly, K. Nagaraja, the learned counsel contends and this Court thinks rightly that the compensation of Rs.1,55,000/- awarded under the Conventional Heads is far in excess of what is prescribed by the Apex Court as maximum in Pranay Sethi’s Case and therefore, the same is scaled down to Rs.70,000/- from Rs.1,55,000/-, disregarding the objections of the claimants side.
The learned counsel for the claimants pressing his Cross-Objections into service contends that the Tribunal has taken only Rs.23,000/- as the income from the salary, whereas the undisputed salary certificate at exhibit P.18, specifically points out that the gross salary of the deceased was Rs.34,070/-. The counsel for the KSRTC points out that though it is a gross salary, certain compulsory deductions such as TDS under the Income Tax Act and the professional tax
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12 have to be deducted from the said gross salary, to which, the counsel for the claimants fairly concedes. To this is added, 15 % by way of addition because of the dicta of the Supreme Court in Pranay Sethi’s Case. Both the counsel have filed a joint memo of calculation giving the relevant particulars as under: Rs.34,000/- (salary) -200 (PT) = 33,800/- Plus 15% Future Prospects = 5,070/-
____________
38,870/- Annual income 38,870x12 4,66,400/- Less 10% uss tax on Rs.2,79,864/-
27,980/-
____________________________
4, 38,454/- Less 50% personal expenses 2,19,227/-
___________ Loss of Dependency (2,19,227 x 9)
19,73,043/- Plus conventional heads
70,000/-
_____________
Total compensation 20,43,043/-
Less 10% negligence 2,04,304/-
____________
18,38,739/-
Less interim compensation 2,35,000/-
____________
16,03,739/- Less compensation awarded by The Tribunal
14,28,380/-
____________ Enhanced amount
1,75,359/-
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13 16. In the above circumstances, the appeal of the KSRTC and the Cross Objection of the claimants are disposed off. The impugned judgment and award aare modified by enhancing the compensation from Rs.14,28,380/- to Rs.16,03,739/- with interest at the rate of 6% p.a., Thus, only a sum of Rs. 1,75,359/- is payable with 6% p.a. interest by way of differential of enhanced compensation. The amount in deposit shall be transmitted to the jurisdictional MACT, forthwith.
Sd/-
JUDGE
CBC