IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD. Present THE HON BLE MR.JUSTICE N.KUMAR. And THE HON BLE MR.JUSTICE H.S.

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1 : 1 : IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 6 th day of August 2012 Present THE HON BLE MR.JUSTICE N.KUMAR And THE HON BLE MR.JUSTICE H.S.KEMPANNA Miscellaneous First Appeal No.10962/2007 (MV) C/w M.F.A. Crob No.728/2008 In MFA No.10962/2007 Between: 1. North West Karnataka Road Transport Corporation, Gokul Road, Hubli, By its Managing Director, Rep. By its Chief Law Officer. 2. North West Karnataka Road Transport Corporation Self-Insurance fund Gokul Road, Hubli, By its Managing Director, Rep. By its Chief Law Officer. Appellants (By Smt. Veena Hegde for M/s. Rao Associates)

2 : 2 : A n d : 1. Bharatraj Neminath Guggari, Adult, 2. Padmavathi W/o. Bharatraj Guggari, Adult, 3. Asha, W/o. Sanjeev Guggari, Age: 36 Years, 4. Kumari Poonam D/o. Sanjeev Guggari, Age: 18 Years, 5. Kumari Sonam D/o. Sanjeev Guggari, Age: 16 Years, 6. Kumar Rishab S/o. Sanjeev Guggari, Age: 9 Years, All R/o. Shanthashree Buildings Deshpande Nagar, Hubli. Respondents 5 and 6 are Minors Rep. By their Mother and natural Guardian Respondent No.3 7. Rajesab S/o. Nabeesab Nadaf, Adult, NWKRTC Driver, Gokul Road, Hubli.

3 : 3 : 8. Neminath S/o. Bharatraj Guggari, Age: 54 Years, R/o. Shantshree Building, Deshpande Nagar, Hubli. Respondents (By Sri. F.V Patil, Advocate for R.2 to 4, Sri. Praveenkumar.G.Kulkarni, Advocate for R.8) This appeal is filed under Section 173(1) of MV Act against the judgment & award dated passed in MVC No.388/01 on the file of the I Addl. Civil Judge (Sr.Dn.) & Addl. MACT, Hubli, awarding a compensation of Rs.14,22,944/- with 6% P.A. In MFA Crob No.728/2008 Between: Smt. Padmavati W/o. Bharatraj Guggari, Age: 71 Years. 2. Smt. Asha W/o. Sanjeev Guggari, Age: 37 Years. 3. Kumari Poonam D/o. Sanjeev Guggari, Age: 18 Years. 4. Kumari Anisha D/o. Sanjeev Guggari, Age: 16 Years.

4 : 4 : 5. Kumar Rishab S/o. Sanjeev Guggari, Age: 9 Years. All are R/o. Shanthshree Buildings, Deshpande Nagar, Hubli. Cross Objectors 4 and 5 are Minors, Rep. By their mother and natural guardian, Cross Objector 2. Cross Objectors (By Sri. F.V Patil & Sri. S.N Yaraguppi, Advocates) And: 1. North West Karnataka Road Transport Corporation, Gokul Road, Hubli by its Divisional Manager. 2. North West Karnataka Road Transport Corporation, Self-Insurance fund, Gokul Road, Hubli, By its Managing Director, Rep. By its Chief Law Officer. 3. Bharatraj Neminath Guggari, Age: major, R/o. Deshpande Nagar, Hubli. Respondents This Cross Objection is filed under Order 41 Rule 22 of CPC read with Rule 9, chapter VI of the Karnataka High Court Rules 1959, against the judgment and award dated passed in MVC No.388/2001

5 : 5 : on the file of the First Addl. Civil Judge (Sr.Dn.), and Addl. MACT., Hubli, partly allowing the claim petition for compensation and seeking enhancement of compensation. This appeal & Cross Objection coming on for admission, this day, H.S.Kempanna, J, delivered the following: JUDGMENT M.F.A. No.10962/2007 is filed by the North West Road Transport Corporation challenging the quantum of compensation. M.F.A. Cross Objection No.728/2008 is filed by the claimants seeking enhancement of compensation awarded to them. 2. For the sake of convenience the parties would be referred to by their rank as they are arrayed in the claim petition before the Tribunal. 3. The claimants are the parents, wife and daughter of the deceased Sanjeev Guggari. According to the claimants, the deceased was aged 39 years, a

6 : 6 : businessman by occupation earning Rs.1,50,000/- per month. On the date of the accident i.e., on , the deceased was riding the scooter bearing registration No.KA-25/556. When he was near Hosur Circle, situated on P.B.Road, the bus belonging to the Corporation bearing registration No.KA-25/F-833 driven by its driver at a high speed in rash and negligent manner came and dashed against the scooter on which the deceased was proceeding. On account of the impact, the deceased sustained fatal injuries and died at the spot. The deceased was their sole bread earner. Therefore, they filed the claim petition claiming compensation in a sum of Rs.3,50,000/- from the respondent-corporation. 4. After service of notice, the respondents appeared and contested the claim of the petitioners. They contended that the accident has not taken place on account of rash and negligent driving of the bus by

7 : 7 : their driver, on the other hand, it was on account of the negligence of the deceased himself. They also denied the claim of the claimants in respect of the age, avocation and income of the deceased. Accordingly, they sought for dismissal of the petition as against them. 5. On the basis of the above pleadings, the Tribunal framed the following issues: 1. Whether petitioners prove that on deceased Bapu Guggari was riding the scooter bearing No.KA25/K-556 and when the deceased was near Hosur circle a K.S.R.T.C. bus bearing No.KA 25/F-833 came in a great speed rashly and negligently and dashed to the said scooter as a result deceased fell down on the road in front of the bus and died on the spot as alleged in the petition? 2. Whether petitioners prove that the deceased was earning Rs.15,00,000/- per annum?

8 : 8 : 3. Whether Respondent No.1 and 2 prove that there is no rash or negligent act on the part of the K.S.R.T.C. bus driver as alleged in para-6 of the objections? 4. Whether petitioners are entitled for reliefs sought for? 5. What order or Award? As the brother of the deceased had filed another claim petition for the damages to the scooter involved in the accident, the Tribunal clubbed both the petitions and recorded common evidence. The claimants in support of their case examined the 3 rd claimant-wife of the deceased as P.W.2 and two more witnesses as P.Ws.3 and 4. They produced, in all, 32 documents which came to be marked as Exs.P.1 to P.32. On behalf of the respondent, they neither led any oral evidence nor produced any documents in support of their case. 6. The Tribunal on the basis of the oral and documentary evidence on record held that the accident

9 : 9 : in question has taken place on account of rash and negligent driving of the bus by its driver and accordingly, the claimants have established the actionable negligence. Further, the Tribunal looking into the evidence of P.W.2-wife of the deceased, the income tax returns that had been placed on record, took the income of the deceased at Rs.1,50,000/- per annum, deducted 1/3 rd out of the same towards personal expenses of the deceased and by applying the multiplier of 14 awarded, in all, compensation of Rs.13,99,994/- towards loss of dependency. It further awarded a sum of Rs.23,000/- under conventional heads. Thus, in all, Tribunal awarded a sum of Rs.14,22,994/- with interest at 6% per annum from the date of petition till realisation. It further saddled the liability to pay compensation on the respondent-corporation. 7. The appellant-corporation being aggrieved by the quantum of compensation have preferred the

10 : 10 : appeal. The claimants being aggrieved by the inadequacy of compensation awarded to them have filed cross-objection. 8. The learned counsel appearing for the appellant-corporation contended that the Tribunal without taking into consideration the income-tax returns produced by the claimants has determined his income at Rs.1,50,000/- per month without there being any basis for the same, thereby the Tribunal has awarded excessive compensation under the head loss of dependency. Hence a case for reduction is made out. 9. Per contra, learned counsel appearing for the claimants contended that the income of the deceased arrived at by the Tribunal having been based on the income tax returns that has been filed in the case is just and proper and does not call for any interference. He further contended that the Tribunal ought to have applied the multiplier of 15 having regard to the age of

11 : 11 : deceased in view of the judgment of the Apex Court in Sarala Verma and others Vs Delhi Transport Corporation and another reported in 2009 ACJ 1298, having not done so it has awarded lesser compensation under the head loss of dependency. He further contended that the compensation awarded under conventional heads is also not in commensurate with the compensation to be awarded under the said heads inasmuch as the compensation that has been awarded towards funeral obsequies expenses is on the lower side and no compensation has been awarded under the head love and affection to the claimants. Therefore, a case for enhancement is made out. 10. Taking the rival contentions, the evidence and documents on record, the point that arises for our consideration is, Whether the compensation awarded is excessive and deserves to be reduced as

12 : 12 : contended by the Corporation or whether the claimants have made out a case for enhancement of compensation as contended? 11. The facts are not in dispute. The accident having taken place resulting in the death of the deceased Sanjeev Guggari on account of rash and negligent driving of the bus belonging to the Corporation is not disputed before us. It is the case of the claimants that the deceased was aged 39 years, a businessman by occupation earning more than Rs.1,50,000/- per month. In support of their claim, the claimants have produced the income tax returns which are at Exs.P.14 to P.17. A perusal of the same discloses that the returns for the year , , filed on behalf of the deceased discloses that he had an annual income of Rs.3,08,470/-, Rs.1,71,740/- and 1,44,092/- respectively and further for the year as per Ex.P.23, he had an annual income of Rs.1,68,770/- and

13 : 13 : a sum of Rs.81,775/- for the year as per Ex.P.26. The Tribunal taking into consideration the income tax returns that had been filed prior to the accident has determined his income for the year 2000 at Rs.1,50,000/- taking the average annual income of the deceased as per the returns filed. We find no justification to interfere with the said finding of the Tribunal taking the annual income of the deceased at Rs.1,50,000/- on the basis of the returns filed by the deceased prior to the accident. Out of the annual income of the deceased, the Tribunal has deducted 1/3 rd towards personal expenses of the deceased and has taken the loss of dependency to the claimants at Rs.1,00,000/- per annum. This also, in our view, has been rightly done by the Tribunal having regard to the number of claimants and, therefore, it does not call for any interference. The deceased as on the date of the accident was aged 39 years. Therefore, in view of what has been held by the Apex Court in Sarla Verma s case,

14 : 14 : the proper multiplier that becomes applicable is 15 and not 14 as rightly contended by the learned counsel for the claimants. Therefore, the claimants, in all, would be entitled to a total compensation of Rs.15,00,000/- as against Rs.13,99,994/- towards loss of dependency. In other words, the claimants would be entitled to an additional compensation of Rs.1,00,000/- under the head loss of dependency. Further, we find from the impugned judgment and award, the Tribunal has awarded only a sum of Rs.23,000/- under the conventional heads. As rightly contended by the learned counsel for the claimants, the Tribunal has not awarded any compensation towards love and affection and the compensation that has been awarded towards the funeral and obsequies ceremonies is on the lower side. Having regard to the norms of awarding compensation under the said heads, we are inclined to award a sum of Rs.10,000/- towards funeral and obsequies ceremony and a further sum of Rs.20,000/- towards love and

15 : 15 : affection taking into consideration that the claimants are the parents, wife and daughter of the deceased. Therefore, the claimants, in all, would be entitled to enhanced compensation of Rs.1,30,000/- with interest at 6% per annum from the date of petition till realisation. Accordingly, we proceed to pass the following: ORDER (i) M.F.A. No.10962/2007 is dismissed. (ii) M.F.A. Crob. No.728/2008 is allowed in part. The claimants are awarded enhanced compensation of Rs.1,30,000/- with interest at 6% per annum from the date of petition till realisation. (iii) The respondent-corporation shall deposit the entire enhanced compensation with interest before the jurisdictional Tribunal within eight

16 : 16 : weeks from the date of receipt of copy of this judgment and award. (iv) The entire enhanced compensation with interest shall be deposited in the name of the 3 rd claimant (in MVC No.388/2001), who is the wife of the deceased, in any Nationalised / Scheduled Bank for a period of five years. She is entitled to withdraw the interest accrued on the said deposit periodically. The statutory amount in deposit made by the appellant-corporation is ordered to be transmitted to the jurisdictional Tribunal for disbursement to the claimant. SD/- JUDGE Kms SD/- JUDGE