The Managing Director, NWSRTC vs Yallamma

B. Veerappa, J.—1. This appeal by NWSRTC challenging judgment and award dated 02/07/2012 passed in MVC No. 361 of 2011 by the Motor Accident Claims Tribunal, Gadag granting compensation of Rs. 5,40,000/- with 6% per annum from the date of petition till the date of payment to the claimant.

Facts of the case are that the respondent herein-claimant is the wife of the deceased and that on 22/11/2011 at 8.20 when her husband along with others were going to Betageri from Narasapur Ashraya Colony by walk, at that time, KSRTC bus bearing registration No. KA 26/F 835 being driven by its driver in a high speed and in a rash and negligent manner dashed against her husband Bojappa from behind as a result of which Bojappa sustained severe injuries and was immediately shifted to Government Hospital, Gadag and then to KIMS Hubli, who succumbed to the injuries on the same day. The claimant was dependant on the earnings of the deceased and due to sudden death of her husband, the claimant is thrown to street. The Gadag Traffic Police have registered a case against the driver of the bus in Cr. No. 30 of 2011 for the offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code and claimed compensation from the owner and insurer of the offending bus.

On service of summons, respondent appeared through counsel. Respondent No. 1 filed written statement denying the entire averments made in the petition regarding age, income and occupation of the deceased and contended that the accident had not occurred because of the rash and negligent driving by the driver of the bus but instead it is the deceased himself due to his old age and ill health without controlling his body fell down in front of the bus which was in motion and that the respondents are not liable to pay the compensation claimed which is excessive and exorbitant and sought to dismiss the petition.

On the basis of the pleadings, the Tribunal framed the following issues:

"1. Whether the petitioner proves that the deceased sustained injuries and died in the Road Traffic Accident by bus bearing No. KA 26/F 835 on 21/11/2011 at 8.20 hours on Pala-Badami road near Narasaour Nekar Colony?

Whether the petitioner is entitled for the compensation? If so how much and from whom?

What order?"

The claimant examined herself as PW-1 and got marked Exs.P-1 to P-6. On behalf of the respondents, the driver of the bus was examined as RW-1 and no documents were marked.

The Tribunal, after considering the entire material, oral and documentary evidence on record, awarded compensation of Rs. 5,40,000/- with interest at 6% per annum from the date of petition till the date of realisation. Being aggrieved by the said judgment and award, KSRTC has preferred this appeal.

The respondent-claimant is served and unrepresented.

I have heard Smt. P.R. Bentur, learned counsel appearing for the appellants. She contended that the Tribunal has erred in deducting 1/4th of the income towards personal expenses of the deceased instead of 50% thereby granting compensation of Rs. 4,95,000/- under the head of loss of dependency which is exorbitant. She also contended that the Tribunal erred in taking the income of the deceased at Rs. 5,000/- per month without any documentary evidence. She further contended that the compensation awarded under other heads is also on the higher side and sought for set aside the award by allowing this appeal.

I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record.

It is not in dispute that deceased Bojappa Parashuram Kshirasagara died on account of rash and negligent driving by the driver of the bus bearing registration No. KA 26/F 835 on 21/11/2011. The claimant examined herself as PW-1 and states that her husband was aged about 55 years at the time of the accident and was doing weaving work and was earning 8,000/- petitioner month. The said evidence made by the claimant has not been contravened by adducing any evidence on behalf of the appellant.

Though the claimant has not filed any appeal for enhancement, in view of the provisions under Order XLI Rule 22 of the Code of Civil Procedure, this Court being the appellate Court has power to enhance the just compensation in view of the dictum of the Hon''ble Supreme Court in the case of Rajesh and others v. Rajbir Singh and others reported in , 2013 ACJ 1403 at paragraphs 7, 8, 11 and 12 held as under:

"7. The expression ''just compensation'' has been explained in Sarla Verma''s case , 2009 ACJ 1298(SC), holding that the compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just. "Just compensation'' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. After surveying almost all the previous decisions, the court has almost standardized the norms for the assessment of damages in motor accident claims.

At Para 11, it has been held as follows:

"(11) In Susamma Thomas, 1994 ACJ 1 (SC), this Court increased the income by nearly 100 percent, in Sarla Dixit, , 1996 ACJ 581(SC), the income was increased only by 50 per cent and in Arati Bexbaruah, , 2003 ACJ 680 (SC) the income was increased by a mere 7 per cent. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words ''actual salary'' should be read as ''actual salary less tax''.) The addition should e only 30 per cent if the age of the deceased was 40 to 50 years. Thre should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (Without provision for annual increments, etc), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

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Since the Court in Santhosh Devi''s, , 2012 ACJ 1428 (SC), actually intended to follow the principle in the case of salary percent as laid down in Sarla Verma''s case, , 2009 ACJ 1298 (SC) and to make it applicable also to self employ and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have the reference to the age. In other words, in case of self employed or persons with fixed wages, in case the deceased victim was below 40 years, they must be an addition of 50% to the actual income of the deceased wife computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

In Sarla Verma''s case, , 2009 ACJ 1298 (SC), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only the just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 and 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."

The Tribunal considering the age and avocation of the deceased has taken Rs. 5,000/- as monthly income. Admittedly, the accident occurred on 22/11/2011 and in view of the dictum of the Hon''ble Supreme Court time and again, the income of the deceased is taken at Rs. 6,000/-. Learned counsel for the appellant mainly contended that the Tribunal has deducted 1/4th of the income instead of 50%. The said contention cannot be accepted. In view of the dictum of the Hon''ble Supreme court in the case of Sarla Verma''s case reported in , 2009 ACJ 1298(SC) wherein the Hon''ble supreme Court has held that deduction in case of only widow, 1/3rd should be deducted. At the same time, taking into consideration the age, occupation of the deceased, 15% has to be added towards future prospects in view of the dictum of the Hon''ble Supreme Court in the case of Rajesh (supra). Monthly income of the deceased is taken as Rs. 6,000/- and 15% has to be added towards future prospects(15% of Rs. 6,000/- = Rs. 900/-. Rs. 6,000+900=Rs.6,900/-) and 1/3rd has to be deducted out of the monthly income(6,900x1/3=2,300. Rs. 6,900-2,300=Rs.4,600/-). Therefore, the loss of dependency would come to Rs. 6,07,200/- (4,600x12x11). A sum of Rs. 1,00,000/- is awarded towards consortium and Rs. 15,000/- towards loss of estate awarded by the Tribunal is just and proper. Rs. 25,000/- is awarded towards transportation of dead body and funeral expenses. Thus in all the claimant is entitled to revised compensation as under:

Thus, in all the claimant is entitled to the enhanced compensation of Rs. 2,07,200/- with interest at 6% per annum from the date of petition till the date of realisation.

Accordingly, the appeal filed by the NWSRTC is disposed of. The amount deposited by the appellant before this court is ordered to be transmitted to the Tribunal forthwith to enable the respondent to withdraw the same.