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Karnataka High Court · body

2010 DIGILAW 1010 (KAR)

Managing Director v. Shivamma

2010-09-20

K.GOVINDARAJULU, N.K.PATIL

body2010
Judgment :- 1. The appeal and the Cross objection are arising out of the same judgment and award dated 25.08.2005 passed in M.V.C.No.2127/03 on the file of the Member, Motor Accident Claims Tribunal, Bangalore (‘Tribunal’ for brevity). 2. M.F.A.No.1974/06 is by the appellant – Corporation on the ground that the compensation of Rs.4,14,560/- awarded by the Tribunal with interest at 7% per annum from the date of petition till the date of realization, is on the higher side and it is liable to be reduced and fixing of contributory negligence at 20% on the deceased and 80% on the driver of bus belonging to the appellant – Corporation, is also not justifiable and the same is required to be modified, whereas the claimants/cross objectors in MFA. Crob.No.294/06 are dissatisfied with the said quantum of compensation and are seeking enhancement. 3. The brief facts of the case are that. Appellant No.1 is the wife and appellant Nos.2 and 3 are the minor children of deceased Chandrashekara. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.15 lakhs against the respondents on account of the death of said Chandrashekara in the road traffic accident that occurred on 23.3.2003 at about 9.45 p.m. when he was traveling as a passenger in BTS Bus bearing registration No.KA-01-F-1828 on Vittal Mallya Road and when the bus reached the Siddalingaiah Circle, due to the rash and negligent driving of the bus by its driver, who took turn abruptly near Siddalingaiah Circle, said Chandrashekara who was standing on the back side foot-board of the bus fell down from the bus and sustained grievous injuries and succumbed to the injuries in the hospital on the next day. It is further submitted that the deceased was aged about 45 years and was working as a driver in the Public Works Department drawing a salary of Rs.7,368/- and due to the untimely death of the sole bread winner of the family, the claimants were constrained to file the claim petition. 4. It is further submitted that the deceased was aged about 45 years and was working as a driver in the Public Works Department drawing a salary of Rs.7,368/- and due to the untimely death of the sole bread winner of the family, the claimants were constrained to file the claim petition. 4. The Tribunal, after hearing the learned counsel on both sides and after considering the oral and documentary evidence available on record, allowed the claim petition in part and awarded compensation of Rs.4,14,560/- with interest at 7% per annum from the date of petition till the date of deposit, by fixing the contributory negligence of 20% on the deceased person and 80% on the driver of the bus belonging to the respondent – Corporation. 5. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants / Cross-objectors have presented M.F.A. Crob. No. 294/2006 on the ground that the said compensation awarded by the Tribunal, is inadequate and requires enhancement whereas the appellant – Corporation is in appeal on the ground that the compensation awarded by the Tribunal is on the higher side and fixing of contributory negligence at 80% on the driver of the bus belonging to the Corporation is also on the higher side and therefore, both have to be reduced appropriately by modifying the judgment and award of the Tribunal. 6. The learned counsel for Corporation submitted that the Tribunal has committed error in fixing the liability at 80% on the driver of the bus belonging to the Corporation which is on the higher side and the contributory negligence of only 20% on the deceased, is on the lower side. He further submitted that due to the negligence of the deceased the said accident took place as he was under the influence of intoxication, and as a result of which he lost balance and fell down from the back side foot board of the bus, when the bus took a turn. This aspect of the matter was neither looked into nor taken into consideration at the time of fixing the liability at 80% on the driver of the bus belonging to the Corporation. This aspect of the matter was neither looked into nor taken into consideration at the time of fixing the liability at 80% on the driver of the bus belonging to the Corporation. Therefore, he submits that the impugned judgment may be modified by fixing appropriate contributory negligence on the deceased as he was under the influence of intoxication and also submitted that the compensation awarded by the Tribunal is on the higher side and the same has to be reduced. 7. As against this, the learned counsel for the cross objectors submitted that the deceases was aged about 45 years at the time of the accident and was working as a driver in the Public Works Department drawing a salary of Rs.7,368/- per month. Out of this, if permissible deduction of professional tax of Rs.50/- is deducted, the net income comes to Rs.7,318/- per month. He further submitted that in the light of the decision of the Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 , the cross objectors are also entitled to future prospects as the deceased was a Government servant, getting regular salary. Therefore, he submitted that the judgment and award passed by the Tribunal is liable to be modified by awarding just and reasonable compensation under the head loss dependency and also under conventional heads. 8. We have heard the learned counsel for the appellant – Corporation and the learned counsel for the Cross-objects / claimants. 9. After hearing the learned counsel for both the parties, the points that arise for consideration are: “1. Whether negligence fixed by the Tribunal at 80% on the driver of the bus and 20% on the deceased is just and proper? and 2. Whether the quantum of compensation awarded by the Tribunal is just and reasonable?” Re-Point Nos. 1 and 2: 10. The occurrence of the accident and the death of Chandrashekara in the said accident are not in dispute. It is also not in dispute that the deceased was aged about 45 years at the time of the accident and was working as a driver in the Public Works Department drawing a salary of Rs.7,368/- per month. 1 and 2: 10. The occurrence of the accident and the death of Chandrashekara in the said accident are not in dispute. It is also not in dispute that the deceased was aged about 45 years at the time of the accident and was working as a driver in the Public Works Department drawing a salary of Rs.7,368/- per month. In view of the law laid down by the Apex Court in catena of decisions and also in the light of the decision in Sarla Verma’s case referred to supra, future prospect of the deceased at 30% of the last gross income of the deceased should be added to the monthly gross income for calculating loss of dependency. Out of gross salary of the deceased, if Rs.50/- is deducted towards professional tax, the net salary comes Rs.7,318/- per month. If 30% of this is added to the gross monthly income, towards future prospects of the deceased. It works out to, Rs.7,318/- + Rs.2,195/- = Rs.9,513/- per month or Rs.1,14,156/- per annum. Out of this, if income tax of Rs.11,831/- as per the relevant assessment year is deducted from the taxable income, the total annual income after deducting income tax comes to Rs.1,02,325/-. Out of this, if 1/3rd is deducted towards personal expenses of the deceased, the net amount comes to Rs.68,217/- per annum. The deceased was aged about 45 years. Therefore, the appropriate multiplier applicable is ‘14’. Accordingly, the loss of dependency works out to Rs.9,55,038/- (Rs.68,217/- x 14). 11. Further, the Tribunal after considering the oral evidence of RWs. 1 and 2 and documentary evidence at Exs.P.1 to P.6 has assigned valid reasons in para 7 for fixing the liability of 80% on the driver of the bus belonging to the Corporation and contributory negligence at 20% on the deceased person. It is stated therein that, on perusal of the copies of FIR, charge sheet, mahazar, sketch and panchanama, inquest report, post mortem report produced by the cross objector No.1, the occurrence of the accident is proved. But it was the case of the appellant – Corporation that the deceased was fully under the influence of intoxication and due to his negligence he has fallen down from the back door foot board of the said bus loosing his control when its driver took right turn. But it was the case of the appellant – Corporation that the deceased was fully under the influence of intoxication and due to his negligence he has fallen down from the back door foot board of the said bus loosing his control when its driver took right turn. RW.2-a co-passenger of the deceased has stated that on seeing this he along with other passengers screamed and then the bus was stopped. They got down and saw that the deceased had sustained grievous injuries. It is specifically referred that as per the evidence of RWs.1 and 2, it is no where suggested to them that the deceased was under the influence of intoxication. But they have not produced any authenticated document to establish that the deceased was under the influence of intoxication at the time of the accident. It is not in dispute that the deceased was standing on the footboard of the back door of the bus and due to the rash and negligent driving of the bus belonging to the Corporation by its driver, when he took a right turn, the deceased fell down. Therefore, the Tribunal after appreciation of the oral and documentary evidence, has rightly recorded a finding of fact by fixing the liability at 80% on the driver of the bus belonging to the Corporation and contributory negligence at 20% on the deceased person and the same is just and proper and does not call for interference. 12. Having regard to facts and circumstances of the case as stated supra, we deem it fit to award Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of love and affection and Rs.10,000/- towards transportation of dead body and funeral expenses. Therefore, the total compensation works out to Rs.9,95,038/- as against Rs.5,18,200/- awarded by Tribunal. Out of this, if 20% i.e, Rs.1,99,007/- is deducted towards contributory negligence on the part of the deceased, the total compensation payable comes to, Rs.7,96,031/-and the enhanced compensation works out to Rs.3,81,471/- with interest at 6% per annum from the date of the petition till the date of realization. 13. For the fore going reasons, the appeal filed by the appellant / Corporation is dismissed as devoid of merits. 14. 13. For the fore going reasons, the appeal filed by the appellant / Corporation is dismissed as devoid of merits. 14. The Cross-objection filed by the claimants is allowed in part by enhancing the compensation by Rs.3,81,471/- with interest at 6% per annum from the date of the petition till the date of realization. The Corporation is directed to deposit the enhanced compensation with interest, within a period of four weeks from the date of receipt of copy of the judgment. On such deposit by the Corporation, a sum of Rs.1,00,000/-with proportionate interest shall be kept in fixed deposit in the name of claimant No.1 in any nationalised or scheduled bank initially for a period of 5 years and renewable for further period of 5 years. The first claimant is entitled to withdraw the interest periodically. Out of the remaining amount, a sum of Rs.1,00,000/-each with proportionate interest shall be kept in fixed deposit in the names of claimant Nos.2 and 3 in any nationalised or scheduled bank till they attain majority. The first claimant is entitled to withdraw the interest periodically, for the welfare of the minors. The remaining amount of Rs.81,471/-with proportionate interest shall be released in favour of the first claimant immediately on such deposit. Office is directed to draw the award. The amount in deposit by the Corporation shall be transmitted to the jurisdictional Tribunal, forthwith.