//
you're reading...
legal issues

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

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,937,855 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,874 other followers

Follow advocatemmmohan on WordPress.com