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Karnataka High Court · body

2010 DIGILAW 1238 (KAR)

Kannika v. Managing Director, K. S. R. T. C.

2010-12-06

H.S.KEMPANNA, N.K.PATIL

body2010
Judgment :- N.K. PATIL, J. 1. These two appeals by the claimants and Karnataka State Road Transport Corporation, are arising out of the same judgment and award dated 8.2.2005 passed in MVC No.1545/2002 on the file of the VI Additional SCJ and MACT, Bangalore (SCCH-2), (hereinafter referred to as ‘Tribunal’ for short). 2. The Tribunal by the Judgment and award, has awarded a sum of Rs.8,53,166/-, under different heads, after deducting 50% towards contributory negligence on the part of the deceased, with interest at 7% p.a., from the date of petition till the date of its deposit as against the claim made by the claimants for a sum of Rs.24,50,000/-, on account of the death of the deceased Sri T. Venkataramaiah, in the read traffic accident. 3. In brief, the facts of the case are: The claimant No.1 is the wife, claimant Nos.2 to 4 are the children of the deceased Sri T. Venkataramaiah and they have filed a claim petition before the Tribunal under Section 166 of M.V.Act, claiming compensation against the driver, owner and insurer of the offending vehicle, on account of the death of the deceased in the road traffic accident, contending that, on 19.12.2001, at about 6.30 A.M., deceased was proceeding in his Motor cycle bearing Reg. No.KA02 S.3802 on Bangalore-Tumkur road and when he was proceeding near T.Dasarahalli bus stop, at that time, the driver of the KSRTC bus bearing Reg.No.KA 22 F 1128 which was going ahead of the deceased had applied sudden brake and took immediate reverse in a rash and negligent manner and hit the motorcycle of the deceased, due to which, he fell down and sustained grievous injuries. Immediately, he was shifted to Raghavendra Nursing Home and then to Manipal hospital, where he has been treated for more than eight days and inspite of giving best treatment, he succumbed to the injuries on 26.12.2001. It is the further case of the claimants that, deceased was aged about 42 years, agriculturist-cum-real estate businessman by profession and earning substantial income and looking after the welfare of the family, due to his untimely death, they have suffered both socially and economically, as he was the bread earner of the family, claimant No.1 has lost her husband and claimant Nos.2 to 4 have lost the guidance and love and affection of their father at their early age. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other material available on file, has awarded a sum of Rs.8,53,166/- under different heads after deducting 50% towards contributory negligence on the part of the deceased with interest at 6% p.a., from the date of petition till its deposit. Being aggrieved by the said Judgment and award, the claimants have filed an appeal contending that, the quantum of compensation awarded by the Tribunal is inadequate and it requires to be enhanced and also that the contributory negligence of 50% fixed on the part of the deceased is on higher side and it needs to be modified and the Corporation has filed an appeal contending that, that the quantum of compensation by the Tribunal is on higher side and it requires to be reduced and that the contributory negligence of 50% fixed on the part of the deceased in just and proper and therefore, it does not call for interference. 4. We have heard Learned Counsel appearing for the claimants and Learned Counsel appearing for the Corporation at considerable length of time. 5. The Learned Counsel for the claimants submitted that, the Tribunal is not justified in fixing the contributory negligence at 50% on the part of the deceased, it is on higher side and it needs to be modified. To substantiate the said submission, he has taken us through the FIR, sketch, Spot Mahazar and submitted that, on account of the fault on the part of the driver of the KSRTC bus, as it has suddenly stopped, deceased met with an accident, sustained injuries and died after one week inspite of giving best treatment and therefore, there is no negligence on the part of the deceased. Further, he submitted that, deceased was young and energetic, aged about 42 years, agricultural cum-real estate businessman by profession and also doing other activities, he was an income tax assessee and filed his Income Tax Returns for the assessment year 1999-2000 showing his income at Rs.1,85,995/-. Further, he submitted that Tribunal has erred to deducting 1/3rd towards the personal and living expenses of the deceased instead of 1/4th in view of the law laid down by Apex Court in Sarala Verma’s case, 2009 ACJ 1298 case since there are four dependants. Further, he submitted that Tribunal has erred to deducting 1/3rd towards the personal and living expenses of the deceased instead of 1/4th in view of the law laid down by Apex Court in Sarala Verma’s case, 2009 ACJ 1298 case since there are four dependants. Therefore, he submitted that, the impugned judgment and award is liable to be modified. 6. As against this, Learned Counsel for the Corporation, interalia, contended that, due to the rash and negligent driving by the deceased himself the said accident had occurred and he died due to the injuries sustained by him in the said accident. Further, he submitted that, the deceased might have avoided the accident by taking his two wheeler on the road side when the bus was stopped near the bus stop and this aspect of the matter has been rightly considered by the Tribunal and has recorded the finding of fact for fixing the contributory negligence at 50% on the part of the deceased and the same is just and reasonable. Further, he submitted that the Tribunal has erred in not deducting the income from house property and income from agriculture and without deducting the income from these two heads, has arrived the annual income of the deceased at Rs.1,85,995/-, out of which, after deducing Rs.10,000/- towards income tax, has arrived the annual income at Rs.1,75,995/- and after deducting 1/3rd towards his personal and living expenses and applying multiplier ‘14’ has awarded a sum Rs.16,33,333/- towards loss of dependency and the same is on higher side and it needs to be modified. Further, he submitted that Rs.20,000/- towards loss of consortium is excessive and it needs to be reduced by modifying the impugned Judgment and award passed by the Tribunal. 7. After careful consideration of the submissions made by Learned Counsel for both and parties and after perusal of the materials available on file, including the impugned Judgment and award passed by the Tribunal, the points that arise for our consideration are: i) Whether the contributory negligence fixed at 50% on the part of the deceased is on higher side? ii) Whether the compensation awarded by the Tribunal is just and reasonable? Regarding Point No.1: 8. The occurrence of the accident and the resultant death of the deceased are not in dispute. ii) Whether the compensation awarded by the Tribunal is just and reasonable? Regarding Point No.1: 8. The occurrence of the accident and the resultant death of the deceased are not in dispute. It is also not in dispute that deceased was aged about 42 years, agriculturist-cum-real estate businessman by profession, an income tax assessee and filed his Income tax returns. It is the case of the claimants that, when the deceased was going from Bangalore to Tumkur and when he came near Dasarahalli, at that time, the bus belonging to the Corporation bearing Reg. No. KA 22 F 1128 driven by its driver came from his behind, overtaken the two wheeler and suddenly stopped near Dasarahalli bus stop by taking the bus towards left side of the road, due to which, the said accident had occurred and deceased sustained grievous injuries and died in the hospital after one week. The Tribunal after assessing the oral and documentary evidence and in view of the damage caused to the bus has opined that, the deceased being the rider of the two wheeler ought to have taken a caution when the bus has stopped and he might have stopped his vehicle or taken it either to the left or right side of the road and avoided that accident. The Tribunal has observed that, as there was a damage to the rear side of the bus, it may be said that there is contributory negligence on the part of the deceased. Further, the Tribunal has observed that, there may be application of brake suddenly by the driver of the bus, by that time, the deceased has lost his control and touched his vehicle against the bus and sustained injuries. Further, it could be seen from the evidence of PW2 that there was only 4 feet distance between bus and the two wheeler and this aspect of the matter has not been looked into or considered by the Tribunal while fixing the contributory negligence at 50% on the part of the deceased solely on the ground that, he might have avoided that accident by taking his vehicle either to the left or right side of the road. Further, the Tribunal has observed that, as per the evidence of PW2, there was only a distance of 4 feet in between the bus and two wheeler and that, when the bus moves in a reverse direction, it moves in a slow speed at the mot it can be 10 to 15 kms., per hour and it is highly impossible to drive the heavy vehicle in a reverse direction in a high speed. This finding of fact recorded by the Tribunal for fixing contributory negligence at 50% on the part of the deceased is contrary to the relevant materials available on file and therefore, it is liable to be modified, for the reason that, when the bus stops suddenly by applying brake, there is no scope of the rider of the two wheeler to take either to the left or right at the eleventh hour. Therefore, after microscopie evaluation of the oral and documentary evidence, particularly, with reference to Ex.P4 sketch and Ex.P3 panchanama/mahazar, we are of the considered view that, negligence of 50% fastened on the deceased is on higher side and it needs to be modified. Therefore, taking all these factors into consideration, we fix the contributory negligence at 20% on the part of the deceased and at 80% on the part of the driver of the bus belonging to the Corporation. Accordingly, the impugned Judgment and award passed by the Tribunal is modified by fixing the contributory negligence at 20% on the part of the deceased. Regarding Point No.2: 9. It emerges from the records that, deceased was aged about 42 years and agriculturist-cum-real estate businessman by profession. As rightly pointed out by the Learned Counsel for the Corporation, the Tribunal has erred in not deducting the income of the deceased from house property and from agriculture operation while arriving the income of the deceased for determining the compensation towards loss of dependency. As against this, Learned Counsel for the claimants submitted that, for the first time, this ground has been taken by the Corporation before this Court and even Corporation has not examined the driver or any Authorised Officer of the Corporation and therefore, the same cannot be accepted at this stage, in view of the well settled law laid down by the Apex Court and this Court in hosts of Judgment. We find some force in the said submission. We find some force in the said submission. It emerges from the records that, deceased has filed his Income Tax Returns for the assessment year 1999-2000 showing his annual income as Rs.1,85,995/- out of which, if Rs.34,9995/- (income from the house property is deducted) the total comes to Rs.1,51,000/-per annum, out of which, if (Rs.10,000/-) is deducted towards income tax, the total income comes to Rs.1,41,000/- per annum. Out of which, if 1/4th (Rs.35,250/-) is deducted towards the personal and living expenses of the deceased, the net income comes to Rs.1,05,750/-. Accepting the multiplier of ‘14’ as rightly adopted by the Tribunal, we re-determine the loss of dependency at Rs.14,80,500/- (Rs.1,05,750 x 14) instead of Rs.16,33,333/- and accordingly, it is awarded. 10. The Tribunal has awarded a sum of Rs.28,000/- towards medical expenses and a sum of Rs.15,000/- towards transportation and funeral expenses, which is just and reasonable and therefore, interference by this Court is uncalled for. 11. Having regard to the facts and circumstances of the case, we award a sum Rs.10,000/- towards loss of consortium, Rs.20,000/-towards loss of love and affection, Rs.10,000/- towards loss of estate. 12. For the foregoing reasons, the impugned Judgment and award passed by the Tribunal is liable to be modified. In all, the claimants are entitled for the compensation Rs.15,63,5000/- and the break-up is as follows: Towards Loss of dependency Rs. 14,80,500/- Towards Loss of consortium Rs. 10,000/- Towards Loss of estate Rs. 10,000/- Towards Loss of love and affection Rs. 20,000/- Towards funeral and transportation expenses Rs. 15,000/- Towards Medical expenses Rs. 28,000/- Total Rs. 15,63,500/- 13. Accordingly, the appeal filed by the claimants and the appeal filed by the Corporation stand disposed of. The impugned Judgment and award passed by the Tribunal in MVC No.1545/2002 is hereby, fixing the contributory negligence at 20% on the part of the deceased instead of 50% as done by the Tribunal and by awarding compensation of Rs.15,63,500/-. Out of which, if 20% (Rs.3,12,700/-) is deducted towards contributory negligence on the part of the deceased, the remaining compensation comes to Rs.12,50,800/-. Out of which, if Rs.8,53,166/-awarded by the Tribunal is deducted, the enhanced compensation comes to Rs.3,97,634/-with interest at 6% p.a. from the date of petition till its realization. The Corporation is directed to deposit the enhanced compensation with interest, within three weeks from the date of receipt of a copy of this Judgment and award. Out of which, if Rs.8,53,166/-awarded by the Tribunal is deducted, the enhanced compensation comes to Rs.3,97,634/-with interest at 6% p.a. from the date of petition till its realization. The Corporation is directed to deposit the enhanced compensation with interest, within three weeks from the date of receipt of a copy of this Judgment and award. Out of the enhanced compensation of Rs.3,97,534/-, a sum of Rs.3,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalised or Scheduled Bank, in the name of the claimant No.1 for a period of five years and renewable for another five years, with liberty to her to withdraw the interest accrued on it. periodically. The remaining sum of Rs.97,634/- with proportionate interest shall be released in favour of the claimant Nos.1 to 4, in equal proportion, immediately, on deposit by the Corporation. The amount deposited by the Corporation shall be transmitted to the concerned Tribunal immediately. Office is directed to draw the award, accordingly.