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Friday, January 16, 2015

CIVIL APPEAL NOS. 348-349 OF 2015 (Arising out of SLP(C) Nos. 4897-4898 OF 2014) SMT.NEETA W/O KALLAPPA KADOLKAR & ORS.ETC. ...APPELLANTS Vs. THE DIV. MANAGER, MSRTC, KOLHAPUR ...RESPONDENT

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS. 348-349 OF 2015
               (Arising out of SLP(C) Nos. 4897-4898 OF 2014)


SMT.NEETA W/O KALLAPPA
KADOLKAR & ORS.ETC.               ...APPELLANTS

                                     Vs.

THE DIV. MANAGER, MSRTC, KOLHAPUR ...RESPONDENT


                               J U D G M E N T

      V. GOPALA GOWDA, J.

                 Leave granted.

2.    The appellants have filed these appeals against  the  impugned  common
judgment and order dated 05.06.2013 passed in M.F.A. No. 21286 of 2012  (MV)
C/W M.F.A. No. 21290 of 2012 by the High Court of Karnataka,  Circuit  Bench
at Dharwad, wherein the High Court has partly allowed the appeals  filed  by
the appellants.

3. The necessary relevant facts are stated hereunder to appreciate the  case
with a view to ascertain whether the appellants are entitled to  the  relief
of enhancement of compensation as prayed in these appeals.

     On 22.03.2011, the deceased Kallappa Gunavant Kadolkar, and his  cousin
Vijay Kadolkar (both aged about  33  years)  were  returning  from  Shinnoli
village towards their  village  Kangrali  BK  on  their  motor-bike  bearing
registration no.KA-22-W-9244,  when  the  MSRTC  bus,  bearing  registration
no.MH-14-BT-1541, came from the opposite direction and collided  with  their
motor cycle, resulting in the death of both the deceased.

4. On filing the M.V.C. Nos.1991/2011 and 1582/2011 by the claimants  before
the Fast Track Court-III & Additional M.A.C.T., Belgaum,  the  Tribunal,  by
its  common  judgment  and  order  dated  06.02.2012,  awarded  compensation
amounting to Rs.7,68,000/- and Rs.7,88,000/- respectively, with interest  at
the rate of 8% p.a. by taking the monthly income of  both  the  deceased  at
Rs.4,500/- p.m. Aggrieved by the same,  the  appellants  filed  the  appeals
before the High Court. The High Court  party  allowed  the  appeals  of  the
appellants by re-assessing the  monthly  income  of  both  the  deceased  at
Rs.6000/- p.m.  and  it  deducted  1/4th  of  the  income  towards  personal
expenses (as per Sarla  Verma  &  Ors.  v.  Delhi  Transport  Corporation  &
Anr.[1]). The multiplier of 16 was taken  to  compute  the  compensation  as
both the deceased were aged about 33 years and awarded the  compensation  of
Rs.9,09,000/- each, in both the cases to the  claimants,  with  8%  interest
p.a. Not satisfied with the quantum of  compensation  awarded  by  the  High
Court to them, these appeals are filed by the appellants before this Court.

5.  Mr. Nitin S. Tambwekar, the learned counsel on behalf of the  appellants
contended that the appellants in M.F.A. No. 21286/2012, are the wife,  minor
child and parents of the deceased Kallappa Kadolkar and  the  appellants  in
M.F.A. No. 21290/2012 are the wife, 3 minor children and the mother  of  the
deceased Vijay Kadolkar. Both the deceased were  aged  about  33  years  and
were skilled workers as they have been working as carpenters.  It  has  been
further contended that the deceased were the only earning members  of  their
families and both were hale and healthy prior to the accident that  occurred
on 22.03.2011 and that both the Tribunal and the High Court  have  erred  in
assessing the income of the deceased as Rs.4,500/- p.m. and  Rs.6000/-  p.m.
respectively, as against Rs.15,000/- p.m. as claimed by the  appellants.  It
has been  further  contended  by  the  learned  counsel  on  behalf  of  the
appellants that both the Tribunal and Appellate Court  have  not  considered
the age of both the deceased and also the fact that they were  spending  all
their income in the welfare of their family members. Hence, it is  contended
by the learned counsel that the  quantum  of  compensation  awarded  by  the
courts below is not just and reasonable and therefore the same  is  required
to be enhanced on the basis of the legal evidence  on  record  and  the  law
laid down by this Court in  a  catena  of  cases  laying  down  the  guiding
principles for taking the monthly income of  the  deceased  for  computation
and award of just and reasonable compensation in the absence of  documentary
evidence on record.

6.  On the other hand, it is the contention of Mr. R.S. Hegde,  the  learned
counsel on behalf of the respondent-Corporation that the  Tribunal  and  the
High Court, after critically evaluating the evidence on record have  awarded
the just and reasonable compensation in favour of the  appellants.  Further,
the amount awarded under the conventional heads is very much on  the  higher
side and therefore required to be reduced by taking  judicial  note  of  the
same.

7. On the basis of the aforesaid rival legal contentions,  the  evidence  on
record and the reasons assigned by the Tribunal and Appellate Court  in  the
impugned judgments and awards in awarding the compensation in favour of  the
appellants, we are of the view that both the High  Court  and  the  Tribunal
have erred  in  assessing  the  monthly  income  of  both  the  deceased  at
Rs.6,000/- p.m. and Rs.4,500 p.m. respectively, for the purpose of  awarding
compensation under the head of loss of dependency of the appellants.

8. The Tribunal and the Appellate Court rightly came to  the  conclusion  on
the basis of the material evidence on record that  the  death  of  both  the
deceased occurred due to the rash and negligent driving of the  bus  by  the
driver of the respondent-Corporation. Hence, we have to consider  the  claim
of the appellants to award the just and reasonable quantum  of  compensation
in favour of the appellants by taking the guiding principles  laid  down  by
this Court. The learned counsel on behalf of the  appellants  has  contended
that both the Tribunal and the Appellate Court have erred  in  not  awarding
the just and reasonable compensation based on the legal evidence  on  record
with regard to their monthly income as they have been doing the skilled  job
of carpentry. Added to this, it is the claim  of  the  appellants  that  the
deceased also had  the  other  source  of  agricultural  income  from  their
agricultural land. The High Court in exercise of its appellate  jurisdiction
in the appeals filed by them has not considered that the  deceased  Kallappa
had three employees working under him and the deceased Vijay had  worked  as
an employee under  Shri  Prasad  Constructions,  Belgaum  and  he  was  also
working as a carpenter under different contractors.  The  said  evidence  on
record remained unchallenged by the respondent-Corporation and there  is  no
rebuttal evidence adduced by the  respondent  disputing  the  claim  of  the
appellants. Thus, the Tribunal and the High Court have committed  an  error,
both on facts and in law in not taking the correct monthly  income  of  both
the deceased for computation of loss of  dependency,  keeping  in  view  the
fact that they were carpenters which is  the  skilled  job.  Therefore,  the
monthly income of the deceased taken by the Tribunal and the High Court  for
determination  of  loss  of  dependency  is  erroneous,  as  it  is  not  in
accordance with the guiding factors laid down by this Court  in  the  catena
of cases to arrive at the just monthly income earned by  both  the  deceased
in the absence of documentary evidence. Therefore, the same is liable to  be
set aside and it has to be properly determined by taking  the  gross  income
of both the deceased. The Tribunal and the High Court even  in  the  absence
of the salary slip/certificate ought to have taken  the  monthly  salary  of
both the deceased at Rs.12,000/- p.m.  keeping in view,  the  Minimum  Wages
Act, 1948 notification, wherein, the State of Karnataka on the basis of  the
said notification for the relevant period, had fixed  the  minimum  wage  of
the carpenters in their report, which is a skilled job in  the  Zone-II  and
the deceased were working  in  the  aforesaid  Zone,  at  Belgaum  District,
during the relevant period of their death.  Further,  it  should  have  been
noted by both the Tribunal and the Appellate Court that  the  minimum  wages
fixed in the notification is not fair wage and therefore,  they  could  have
taken the monthly salary on the basis of real wages that were being paid  in
the absence of documentary proof on the basis of  speculation.  They  should
have taken the reasonable monthly income of the deceased for the purpose  of
computation  of  just  and  reasonable  compensation  in   favour   of   the
appellants. In addition to the above  said  income,  it  is  stated  by  the
learned counsel on behalf of the appellants  that  the  deceased  were  also
carrying on with the agricultural occupation  in  their  agricultural  land,
which is the additional source of income which  ought  to  have  been  taken
into consideration by the courts below.

9.  Further, in the case of Vimal Kanwar & Ors. v. Kishore  Dan  &  Ors.[2],
this Court has held as under:-
"31. In New India Assurance Co. Ltd. this Court noticed that the High  Court
determined the compensation by granting 100% increase in the income  of  the
deceased. Taking into consideration the fact that in the normal course,  the
deceased would have served for 22 years and during that  period  his  salary
would have certainly doubled, upheld the judgment of the High Court...."

Taking the principle laid down in the aforesaid  case,  the  deceased  would
have served another 25 years, during that period  their  salary  would  have
certainly doubled, which is the view taken by this Court in the case of  New
India Assurance Co. Ltd. v. Gopali & Ors.[3] Keeping in view  the  aforesaid
statement of law laid down in the aforesaid cases and monthly income of  the
deceased who were doing the skilled job  of  carpentry  and  added  to  that
income, the income that was derived from the  agricultural  occupation  from
their agricultural land and future prospects as held by this  Court  in  the
above case, it would be just and proper  for  this  Court  to  assess  their
monthly income at Rs.12,000/- p.m. each for the purpose  of  computation  of
loss of dependency. Further, in view of the law laid down by this  Court  in
the case of Santosh Devi v. National Insurance Company Ltd. & Ors.[4],  this
Court has ruled that even in the case  of  private  employment,  the  future
prospects  can  be  taken  into  consideration  to  determine  the  loss  of
dependency. Having regard to the age of the  deceased,  the  same  shall  be
added to the annual income  of  the  deceased  to  determine  the  just  and
reasonable compensation under the heading of the loss of dependency.

    Therefore, it would be just and proper to take the aforesaid  additional
income from the agricultural occupation and future prospects as  claimed  by
the appellants on the basis of speculation and  presumption  and  apply  the
multiplier 16, as the same is applicable in view of the age of the  deceased
as 33 years as on the date  of  their  death,  which  is  sworn  to  by  the
witnesses  who  were  examined  before  the  Tribunal  on  behalf   of   the
appellants, in respect of both the Claim Petitions before the Tribunal.

   Thus, the annual income of  both  the  deceased  would  be  Rs.1,44,000/-
each. Deducting 1/4th of this amount towards  their  personal  expenses,  in
order to determine the loss of dependency and keeping in  view  the  age  of
the minor children, their widowed wives  and  the  aged  parents,  as  their
units will be  4 and 5 respectively, as provided in the Sarla Verma  (supra)
case, the balance amount comes to Rs.1,08,000/-[(1,44,000/- (-)  Rs.36,000/-
(1/4th  of  Rs.1,44,000/-)].  Therefore,  the  loss  of  dependency  of  the
appellants  by  applying  the  appropriate  multiplier  of  16,   comes   to
Rs.17,28,000/- (Rs. 1,08,000/- X 16).

10. Further, we award Rs.1,00,000/- to each of the appellant-children,  i.e.
Rs.1,00,000/- and Rs.3,00,000/- respectively, as  per  the  principles  laid
down by this Court in the case of Jiju Kuruvila & Ors. v.  Kunjujamma  Mohan
& Ors.[5] towards loss  of  love  and  affection  of  the  deceased  father.
Further, an amount of Rs.50,000/- each is to be awarded to  the  parents  of
the deceased for the loss of love and affection of  their  deceased  son  as
per the principles laid down by this Court in the case of M. Mansoor &  Anr.
v. United India Insurance Co. Ltd[6].  We  further  award  Rs.25,000/-  each
towards funeral expenses of both the deceased as held by this Court  in  the
case of Rajesh & Ors. v. Rajbir Singh & Ors.[7]

11. The appellants are also entitled to the  interest  on  the  compensation
awarded by this Court in these appeals at the rate of  9%  p.a.  along  with
the amount under the different heads as indicated above.  The  courts  below
have erred in  awarding  the  interest  at  the  rate  of  8%  p.a.  on  the
compensation awarded  by  them  to  the  appellants  without  following  the
decision of this Court in Municipal Corporation of Delhi,  Delhi  v.  Uphaar
Tragedy Victims Association & Ors.[8]. Accordingly, we  award  the  interest
at the rate of 9% p.a. on the compensation determined in these appeals  from
the date of filing of the application till the date of payment.

12. In the result, the appellants shall be entitled  to  compensation  under
the following heads:


|Sl.No.   |Heads              |Claimants of       |Claimants of Vijay  |
|         |                   |Kallappa           |                    |
|1.       |Loss of dependency |Rs.17,28,000/-     |Rs.17,28,000/-      |
|2.       |Funeral Expenses   |Rs.25,000/-        |Rs.25,000/-         |
|3.       |Loss of love and   |Rs.1,00,000/-      |Rs.3,00,000/-       |
|         |affection          |                   |                    |
|         |(children)         |                   |                    |
|  4.     |Loss of love and   |Rs.1,00,000/-      |Rs.50,000/-         |
|         |affection          |                   |                    |
|         |(parents)          |                   |                    |
|5.       |Loss of            |Rs.1,00,000/-      |Rs.1,00,000/-       |
|         |estate             |                   |                    |
|6.       |Loss of            |Rs.1,00,000/-      |Rs.1,00,000/-       |
|         |consortium         |                   |                    |
|         |Total              |Rs.21,53,000/-     |Rs.23,03,000/-      |


13. Thus, the total compensation payable to the claimants  of  the  deceased
Kallappa  and  Vijay,  by  the  respondent-Transport  Corporation  will   be
Rs.21,53,000/- and Rs.23,03,000/- respectively,  with  interest  @  9%  p.a.
from the date of filing of the application till the date of payment.

14.  Accordingly, we allow these  appeals  in  the  above  said  terms.  The
compensation awarded shall be apportioned  amongst  the  appellants  on  the
enhanced compensation in terms of the award  passed  by  the  Tribunal.  The
respondent-Transport  Corporation   shall   either   pay   the   amount   of
compensation by way of demand draft/drafts in favour of  the  appellants  or
deposit  the  same  with  interest  as  awarded,  even   on   the   enhanced
compensation before the Motor Accidents Claims Tribunal after deducting  the
amount already paid to the appellants within six  weeks  from  the  date  of
receipt of the copy of this judgment. No costs.

        ..................................................................J.
                                   [V.GOPALA GOWDA]



           ...............................................................J.
                                   [C.NAGAPPAN]
     New Delhi,
     January 13, 2015
-----------------------
[1]    (2009)6 SCC 121
[2]    (2013) 7 SCC 476
[3]    (2012) 12 SCC 198
[4]    (2012) 6 SCC 421
[5]    (2013) 9 SCC 166
[6]    (2103) 12 SCALE 324
[7]    (2013) 9 SCC 54
[8]    (2011) 14 SCC 481

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