YERRAMMA Vs G. KRISHNAMURTHY & ANR
Bench: DIPAK MISRA,V. GOPALA GOWDA
Case number: C.A. No.-007705-007705 / 2014
Diary number: 39353 / 2013
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C.A .No. 7705 of 2014 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7705 OF 2014
(Arising out of SLP(C) NO. 4895 OF 2014)
YERRAMMA & ORS. …APPELLANTS
Vs.
G. KRISHNAMURTHY & ANR. ….RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J. 1.This appeal has been filed by the appellants
against the impugned judgment and order dated
05.06.2013 passed in M.F.A. No. 21576 of 2012 by
the High Court of Karnataka, Circuit Bench at
Dharwad, wherein the High Court has partly
allowed the appeal filed by the appellants.
2.The necessary relevant facts are stated
hereunder to appreciate the case with a view to
ascertain whether the appellants are entitled
for relief as prayed in this appeal. On
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C.A .No. 7705 of 2014 2
20.5.2011, the deceased Gavisiddappa was
proceeding on a motor cycle bearing registration
No.KA034/K-3530 towards S.P. Circle, when the
State Road Transport Corporation bus which was
going ahead of him took a right turn to enter
the bus depot without giving the right turn
indication. The motor cycle of Gavisiddappa
collided with the bus while the bus was taking a
right turn. Due to the impact caused by this
collision of the bus with the motorcycle, the
deceased sustained fatal injuries and succumbed
to the same while on the way to the hospital.
3.At the time of the accident, the deceased was
working as an ASI in the Kudithini Police
Station and was drawing a salary of Rs. 26,000/-
per month. The deceased was the only earning
member of the family for their livelihood.
4.The appellants herein, the wife, 3 minor
children and the mother of the deceased
Gavisiddappa, filed a Claim Petition against the
respondents before the MACT-XII, Bellary, vide
MVC No.685 of 2011. The Tribunal calculated the
compensation amount under all heads at
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Rs.21,30,632/-. The Tribunal also apportioned
the contributory negligence at 25% on the part
of the deceased and 75% on the driver of the
respondent-Corporation. Thus, after 25%
deduction from the amount of the total
compensation, the Tribunal awarded an amount of
Rs.15,97,974/- payable by the respondents to the
appellants vide order dated 29.12.2011.
5. Being aggrieved by the award passed by the
Tribunal, the appellants filed an M.F.A.
No.21576 of 2012 on 05.04.2012 before the High
Court of Karnataka, Circuit Bench at Dharwad.
After considering the facts, evidence on record
and circumstances of the case, the High Court
was of the view that the net income of the
deceased at the time of his death was
Rs.21,168/- per month. As the claimants were 5
in number, the High Court held that Rs.5292/-
i.e. 1/4th of the income had to be deducted
towards personal expenses of the deceased (as
per Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr.1). Therefore, the remaining 1
(2009)6 SCC 121
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C.A .No. 7705 of 2014 4
amount comes to Rs.15,876/- per month. The High
Court applied the multiplier of 11 and re-
determined the loss of dependency of the
appellants at Rs.20,95,632/- as the age of the
deceased at the time of his death was 53 years.
It further awarded a sum of Rs.45,000/- towards
conventional heads i.e. loss of consortium, loss
of estate, loss of love and affection,
and transportation of the dead body. Thus, the
total compensation amount was determined by the
High Court at Rs.21,40,632/-. The High Court has
affirmed the apportionment of contributory
negligence as determined by the Tribunal
and accordingly, deducted 25% from the
above compensation. A final amount of
Rs.16,05,474/- was awarded to the appellants by
the High Court as against Rs.15,97,974/- awarded
by the Tribunal. Thus, the High Court partly
allowed the appeal by enhancing the compensation
by a sum of Rs.7,500/-.
6.Aggrieved by the above impugned judgment and
order passed by the High Court of Karnataka,
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Circuit Bench at Dharwad, the appellants
preferred an appeal before this Court for
setting aside the same and for enhancement of
compensation by awarding just and reasonable
compensation.
7. Mr. C.B. Gururaj, the learned counsel for the
appellants contended that the judgment of this
court in Juju Kuruvila & Ors. v. Kunjujamma
Mohan & Ors.2 is applicable to the facts of the
present case. In the above case, Joy
Kuruvila(the deceased) had a head-on collision
with a bus approaching from the opposite side.
Joy Kuruvila sustained serious injuries and died
on the way to the hospital. The Tribunal found
that the accident occurred due to the rash and
negligent driving of the bus driver. It
apportioned the contributory negligence between
the driver and the deceased in the ratio of
75:25%. On the basis of the pleadings & evidence
on record, in the above said case this Court has
held thus on the negligence of the driver of the
bus:- 2
(2013)9 SCC 166
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“20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
20.6. The post mortem report, Ext. A- 5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct
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evidence like PW3 (independent eyewitness), Ext. B-1 (FI statement) are on record”
Thus in our view, the contributory negligence
apportioned by the Tribunal, which is affirmed
by the High Court at 75% on the respondent-
Corporation bus driver and 25% on the part of
the deceased is erroneous not only with
reference to the plea urged by the respondents
before the Tribunal and the High Court but also
keeping in view the legal principles laid down
by this Court on this aspect in the above
referred case.
8.The observations made by this Court in the case
of Juju Kuruvila (supra) certainly apply to the
fact situation on hand. Based on the evidence
recorded in the present case, we are of the
opinion that there is no contributory negligence
on the part of the deceased but on the other
hand the negligence is on the part of the driver
of the respondent-Corporation bus.
9.After thorough consideration of the facts and
legal evidence on record in the present case, we
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C.A .No. 7705 of 2014 8
are of the view that the collision between the
motor vehicles occurred when the respondent-
Corporation bus was turning to its right side
without showing the turn indicator to enter the
bus depot. The driver of the offending vehicle
of the respondent-Corporation bus was negligent
by not giving the right turn indicator and
causing the accident. The driver of the
respondent-Corporation bus should have been
aware of the fact that he was driving the heavy
passenger motor vehicle, and that it was
necessary for him to take extra care & caution
of the other vehicles on the road while taking
the turn to enter the depot. Had the driver of
the offending vehicle taken sufficient caution
and care, slowed down and allowed reasonable
provision for other vehicles on the left side of
the road to pass smoothly, the accident could
have been averted.
10. Hence, we are of the view that the Tribunal
and the High Court have erred in the
apportionment of negligence at 25% on the part
of the deceased and 75% on the part of the
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driver of the respondent-Corporation bus without
evidence adduced in this regard by the
respondent. But on the other hand, legal
evidence produced on record by the appellants in
this case would show that the accident was
caused on account of the negligence on the part
of the driver of the offending vehicle of the
respondent-Corporation. Therefore, the erroneous
finding recorded by the Tribunal & concurring
with the same by the High Court on the question
of contributory negligence of the deceased is
liable to be set aside. Accordingly, we set
aside the same as it is not only erroneous but
contrary to law laid down by this Court in the
case of Juju Kurivila (Supra).
11. In our considered view, since the deceased
at the time of his death was approximately 53
years of age, therefore, as per law laid down by
this Court in the Sarla Verma case (supra), 30%
of actual salary for future prospects of the
deceased cannot be taken for the purpose of
awarding compensation under loss of dependency
in favour of the appellants.
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12.Further, with regard to gross annual income of
the deceased, to determine the loss of
dependency of the appellants, we refer to the
case of National Insurance Co. Ltd. v. Indira
Srivastava3, wherein this Court has held as
under:-
“19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
20. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under : "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any
3 (2008) 2 SCC 763
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profession, trade or calling other than agriculture."
It has also been stated :
'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337."
13. The Tribunal on examining the salary slip of
the deceased for the month of April, 2011
determined the salary of the deceased at
Rs.21,168/- per month after deducting towards
P.T. and other statutory deductions. Therefore,
the Tribunal arrived at Rs.21,168/- per month as
the salary of the deceased. The High Court in
its impugned judgment and order affirmed the
same. We are of the view, that on the facts and
circumstances of this case, the net salary of
the deceased taken by the Tribunal and the High
Court for determination of loss of dependency is
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erroneous as it is not in accordance with the
principles laid down by this Court in this
regard. Therefore the same is liable to be set
aside as it has to be properly determined by
taking gross income of the deceased. It is clear
that the gross income of the deceased at the
time of his death as per his salary slip was
Rs.26,000/- per month. Therefore, we are of the
view that a just and reasonable compensation
under the head of loss of dependency has not
been determined by the courts below. Thus, the
impugned judgment and order of the High Court is
vitiated both on account of erroneous finding
and error in law. The gross salary drawn by the
deceased at the time of his death was
Rs.26,000/- per month. The High Court and the
Tribunal have taken the net salary at
Rs.21,168/- per month, thereby the Courts below
have erred in making deductions from the gross
salary of the deceased towards P.T. of Rs.200/-
and other statutory deductions and therefore,
arriving at Rs.21,168/- per month as the net
salary of the deceased is erroneous in law.
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Therefore, we are of the view that both the
Tribunal and the High Court have erred in not
following the rules laid down by this Court in
Indira Srivastava’s (supra) in not taking gross
income of the deceased to determine the loss of
dependency.
14. The gross salary drawn by the deceased at
the time of his death as per salary slip
produced on record was Rs.26,000/- per month and
after deducting 10% towards income tax, net
income comes to Rs.23,400/- per month. Thus, the
annual income of the deceased would be
Rs.2,80,800/-. Deducting 1/4th of this amount
towards his personal expenses by applying the
principle as laid down by this Court in Sarla
Verma case (supra), the balance amount comes to
Rs.2,10,600/-[(2,80,800/- – Rs.70,200/- (1/4th of
Rs.2,80,800/-)]. Therefore, the loss of
dependency of the appellants by applying the
appropriate multiplier of 11, according to the
rules laid down by this Court in the Sarla Verma
comes to Rs.23,16,600/- (Rs.2,10,600/- X 11).
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15. Further, the High Court has erred in not
following the rules as laid down by this Court
in awarding compensation under other
conventional heads as mentioned hereunder. We
are of the view that the appellants are entitled
to Rs.1,00,000/- for loss of consortium,
Rs.1,00,000/- for loss of love and affection as
per the rule laid down by this Court in Rajesh &
Ors. v. Rajbir Singh & Ors.4, Rs.10,000/- for
funeral expenses as per the rules laid down by
this Court in Amrit Bhanu Shali & Ors. v.
National Insurance Co. Ltd. & Ors.5 and
Rs.1,00,000/- for loss of estate.
16. The computation made by both the Tribunal
and the High Court after deducting the amount
out of the compensation under the head of loss
of dependency towards contributory negligence
and not taking gross income of the deceased as
laid down by this Court in Indira Srivastava’s
4 (2013) 9 SCC 54
5 (2012) 11 SCC 738
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case (supra) has rendered the determination of
the compensation under the head of loss of
dependency bad in law. Further, the
quantification of compensation from all other
heads as indicated in the preceding paragraph by
us as both the Tribunal and the High Court have
erred in not following rule laid down by this
Court on this aspect in the catena of cases
referred to supra. Therefore, we set aside the
same and award the compensation as per the
calculations made in the penultimate paragraph
of this judgment.
17. As regards to awarding of interest on the
compensation, the courts below have erred in
awarding only 6% interest p.a. on the
compensation awarded instead of 9% p.a. by
applying the decision of this Court in Municipal
Corporation of Delhi v. Association of Victims
of Uphaar Tragedy6. Therefore, we have to award the interest @9% p.a. on the compensation
determined in this appeal. 6
(2011) 14 SCC 481
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18. In the result, the appellants shall be
entitled to compensation under the following
heads: Loss of Life Rs.23,16,600/- Funeral Expenses Rs. 10,000/- Loss of love and affection Rs. 1,00,000/- Loss of estate Rs. 1,00,000/- Loss of consortium Rs. 1,00,000/-
Total : Rs.26,26,600/-
Thus, the total compensation payable to the
appellants by the respondent-Transport
Corporation will be Rs.26,26,600/- with interest
@ 9% from the date of filing of the application
till the date of payment.
19. In view of the reasons stated as above, we
allow this appeal in the above said terms. The
compensation awarded shall be apportioned
amongst the appellants 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
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favour of the appellants or deposit the same
with interest as awarded, 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. [DIPAK MISRA]
……………………………………………………………………J. [V.GOPALA GOWDA]
New Delhi, August 28, 2014.