Managing Director, K.S.R.T.C. (Karnataka) v Baby and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939** **MACA.NO. 1792 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.190/2014 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, KASARAGOD DATED 04.03.2015** **-----------------------** ## **APPELLANT(S)/2ND RESPONDENT :** **---------------------------** **MANAGING DIRECTOR, K.S.R.T.C. (KARNATAKA), REPRESENTED BY DIVISIONAL CONTROLLER, K.H.ROAD, BANGALORE-560027.** **BY ADV.SRI.SHEJI P.ABRAHAM** ## **RESPONDENT(S)/PETITIONERS/1ST RESPONDENT :** **-----------------------------------------** **1. BABY,AGED 49 YEARS, W/O.LATE BABU POOJARI, PERAL DUNDATHAMOOLA, MOGRAL POST, KUMBLA, KASARAGOD-671121.** **2. PRABHA,AGED 30 YEARS, D/O.LATE BABU POOJARI -DO-,671121.** **3. JYOTHI,AGED 26 YEARS, D/O.LATE BABU POOJARI -DO-,671121.** **4. ASHA,AGED 25 YEARS, D/O.LATE BABU POOJARI -DO-,671121.** **5. SUMALATHA,AGED 23 YEARS, D/O.LATE BABU POOJARI, -DO-, 671121.** **6. AMBIKA,AGED 21 YEARS, D/O.LATE BABU POOJARI -DO-,671121.** **7. POORNIMA,AGED 20 YEARS, D/O.LATE BABU POOJARI -DO-,671121.** **8. PADMANABHA, AGED 49 YEARS, S/O.SEETHARAM SAPALYA, THUPPEKALLU HOUSE, ARKULA VIL, FARANGIPETTA POST, MANGALORE TALUK, DAKSHINA KANNADA DISTRICT, KARNATAKA-574143.** **R1-R7 BY ADV. SRI.I.V.PRAMOD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.1792 of 2015 ---------------------------------Dated this the 19[th] day of February, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.190 of 2014 of the Additional Motor Accidents Claims Tribunal-III, Kasaragod by the Managing Director, KSRTC, Karnataka. On 19.11.2011, one Babu Poojari sustained injuries in a motor accident while he was travelling in a vehicle KA-19/F-2874 (Karnataka Transport Bus) from Thirupathi to Mangalore and he was removed to SVRGG Hospital, Thirupathi. Since his condition was very bad, for better treatment, he was taken to Wenlock Hospital, Mangalore but during the course of shifting him from there, he succumbed to the injuries. The wife and children of the deceased preferred the above application and the learned tribunal awarded an amount of Rs.8,00,000/- (Rupees Eight Lakhs only) with interest and cost as compensation. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. Learned counsel appearing for the appellant ## M.A.C.A. No.1792 of 2015 2 contended that there was no possibility for an accident. On the other hand, the deceased jumped out of the vehicle and committed suicide and the claimants are not entitled to get any amount as compensation. 3. Learned counsel appearing for the claimants contended that there was no chance to commit suicide since he was returning after a pilgrimage from Thirupathi and the appellant never proved that the deceased committed suicide. 4. According to Sec.166 of the Motor vehicles Act, the dependants or the legal representatives are entitled to get compensation for the death of any person in respect of an accident or death arising out of the use of the motor vehicle in a public place. Even though the appellant contended that it was a suicide, no evidence has been adduced to substantiate that contention. Burden of proof in a case has two distinct meanings, namely, (i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. According to Section 101 of the Evidence Act it deals with Law and pleading but Sec.102 ## M.A.C.A. No.1792 of 2015 3 about adducing evidence. The first remains constant but the second shifts. In a claim application, under Section 166 of the Motor Vehicles Act, 1988, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and the evidence is found acceptable, then onus shifts on the tortfeasor to prove those circumstances, which dislodge the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and on that basis to award just compensation. It would, thus, appear that the legal burden, as a matter of law and pleadings remains constant on the claimant, but the burden as a matter of adducing evidence changes from claimant to tortfeasor during trial. Hence, the learned tribunal rejected the above arguments, therefore further discussion on that point is not necessary. 5. Appellant further contended that excess ## M.A.C.A. No.1792 of 2015 4 amounts are awarded by the tribunal under the heads Loss of Estate and Loss of Consortium and he relied the decision held in National **Insurance Company** V. **Pranay Sethi 2017 (4) KLT 662 (SC)** . The deceased was a Coolie by profession and claimed Rs.15,000/- as his monthly income, but the learned tribunal took Rs.4,500/as his monthly income. There is no dispute with regard to the income taken by the tribunal which is just and reasonable. In view of the decision in **Sarla Verma** v. ## **Delhi Transport Corporation 2010 (2) KLT 802 (SC)** the claimants are entitled to get just amount as compensation. The deceased was aged 49 years at the time of accident and the multiplier is 13. Hence, the claimants are entitled to get an amount of Rs.5,26,500/(4500x12x13x3/4) for Loss of Dependency. 6. Apex Court in **National Insurance Company** V. **Pranay Sethi 2017 (4) KLT 662 (SC) held as follows :** 61. In view of the aforesaid analysis, we proceed to record our conclusions:- - (i) The two-Judge Bench in Santhosh Devi should have been ## M.A.C.A. No.1792 of 2015 5 well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before. (vi) The selection of multiplier shall be as indicated in the M.A.C.A. No.1792 of 2015 6 Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. Hence the claimants are entitled to get a total compensation of Rs.70,000/- under the heads Loss of Estate, Loss of Consortium and Funeral Expenses. In this Case, excess amounts were awarded under the heads Loss of Consortium and Loss of Estate (Rs.50,000/- and Rs.75,000/-) and lesser amount was awarded for Funeral Expenses. Hence interference is necessary and the award of the Motor Accidents Claims Tribunal-III, Kasaragod is modified as follows : |SL.<br>NO.|HEAD OF CLAIM|AMOUNTS<br>AWARDED<br>(in Rupees)|AMOUNTS<br>MODIFIED<br>(in Rupees)| |---|---|---|---| |1|Transportation expenses|20,500/-|Rs.20,500/-| |2|Damages to clothing|1,500/-|1,500/-| |3|Funeral expenses|8,000/-|15,000/-| |4|Compensation for pain and<br>sufferings|5,000/-|5,000/-| ## M.A.C.A. No.1792 of 2015 7 |SL.<br>NO.|HEAD OF CLAIM|AMOUNTS<br>AWARDED<br>(in Rupees)|AMOUNTS<br>MODIFIED<br>(in Rupees)| |---|---|---|---| |5|Compensation for Love and<br>Affection|1,00,000/-|1,00,000/-| |6|Compensation for Loss of Estate|50,000/-|15,000/-| |7|Compensation for Loss of<br>Consortium to the 1stpetitioner|75,000/-|40,000/-| |8|Compensation for Loss of<br>Dependency|5,40,000/-|5,26,500/-| ||**Total**|**Rs.8,00,000/-**|**Rs.7,23,500/-**| Hence the dependants of the deceased are entitled to get a total compensation of Rs.7,23,500/- (Rupees Seven Lakh Twenty Three Thousand Five Hundred only) with 8% interest per annum from the date of petition till realisation with proportionate cost. The appellant is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS P.A. To Judge