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2013 DIGILAW 710 (KAR)

Managing Director KSRTC v. D. Saraswathi

2013-06-20

N.ANANDA

body2013
JUDGMENT 1. As aforestated, claim petitions were filed under Section 163-A of the Motor Vehicles Act. 2. The facts leading to these claim petitions are as follows:- On 04.07.2007 at about 2.30 p.m., deceased Ramesh Naidu was driving car bearing No.AP-03/C-6116 from Mulabagal to Palamner. When he was proceeding on N.H-4 near Vaddahalli, a KSRTC bus bearing No.KA-06/F-144 came from opposite direction and dashed against the car, as a result, the driver of car namely deceased Ramesh Naidu and his father Munirathnam Naidu and his mother Savithramma succumbed to injuries. The daughter of Ramesh Naidu namely Thejeshwari (claimant in MVC No.2229/2008) suffered injuries. 3. At this juncture, it is relevant to notice that Section 165 of the Motor Vehicles Act was amended to facilitate the claimants/victims of accident to file claim petitions before the tribunal within whose jurisdiction they reside. The amendment was brought into effect to mitigate hardship to the claimants but, the claimants in the instant cases have chosen the Motor Accident Claims Tribunal at Bangalore to mitigate hardship to KSRTC because claimants have option to file the claim petition before the tribunal in whose jurisdiction defendant resides. The deceased persons and injured claimants are the members of joint family, yet, the claim petitions were decided before different tribunals. The claimants should have sought for consolidation of claim petitions for decision by a common judgment. These claim petitions were filed under Section 163-A of the Motor Vehicles Act. The tribunal, rightly has not called upon the claimants to prove rash and negligent driving of driver of KSRTC bus bearing No.KA-06/F-144. 4. Sri.F.S.Dabali, learned counsel for KSRTC would submit that, the entire investigation would reveal that accident took place due to rash and negligent driving of car bearing No.AP-03/C-6116 by deceased Ramesh Naidu. The deceased had driven the car to its extreme right and dashed against the KSRTC bus which was coming on proper side of the road. Sri.F.S.Dabali, learned counsel for KSRTC would further submit that notwithstanding the fact that claim petitions were filed under Section 163-A of the Motor Vehicles Act, the tribunal should have considered evidence adduced by respondent/KSRTC to hold that deceased Ramesh Naidu himself was guilty of rash and negligent driving. 5. Smt.Suguna R. Reddy, learned counsel for claimants would submit that claim petition was filed under Section 163-A of the Motor Vehicles Act. 5. Smt.Suguna R. Reddy, learned counsel for claimants would submit that claim petition was filed under Section 163-A of the Motor Vehicles Act. It is a special piece of legislation, meant to mitigate the hardship of prolonged litigation. Therefore, the tribunal has rightly decided the claim petitions by dispensing with the proof of actionable negligence by claimants. 6. In order to resolve this controversy, it will be useful to refer to the judgment of Supreme Court reported in 2012 ACJ 1 (in the case of National Insurance Co.Ltd., -vs- Sinitha and others) wherein, the Supreme Court has held:- "16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala2001 ACJ 827 (SC), as also the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the 'no-fault' liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of 'wrongful act', being 'neglect' or 'default'. But that, is not sufficient to determine that the provision falls under the 'fault' liability principle. To decide whether a provision is governed by the 'fault' liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving 'wrongful act', 'neglect' or 'default'. To decide whether a provision is governed by the 'fault' liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving 'wrongful act', 'neglect' or 'default'. From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a 'fault' ground ('wrongful act' or 'neglect' or 'default'). It is, therefore, doubtless, that Section 163A of the Act is founded under the 'fault' liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner." 7. In view of what has been held in the aforestated judgment and in the facts and circumstances of case, the common question that would arise for consideration in these appeals is:- Whether the respondent-KSRTC has adduced through cogent evidence that the accident took place due to rash and negligent driving of car bearing No.AP-03/C-6116 by deceased Ramesh Naidu ? 8. It is established from the evidence on record that car driven by deceased Ramesh Naidu was proceeding from Mulabagal towards Palamner on NH.4. As per evidence of RW.1, he was driving KSRTC bus from Byrukur to Mulabagal. The accident took place on NH.4 near Vaddahalli. There is a T-Junction at Vaddahalli cross. The approach road leading to Vaddahalli and other villages joins NH-4 at Vaddahalli. The driver of KSRTC bus had entered the Highway from the approach road. In the circumstances it looks probable that car had been driven to its off side. The driver of KSRTC bus had not deposed that he had stopped the bus before entering the Highway from the approach road. Therefore, I hold that KSRTC has failed to adduce cogent evidence to prove that accident took place due to rash and negligent driving of car bearing No.AP-03/C-6116 by deceased Ramesh Naidu. As already stated, these cases were tried by different tribunals. In view of finding recorded by this court, dismissal of claim petition in MVC 4524/2010 cannot be sustained. 9. Therefore, I hold that KSRTC has failed to adduce cogent evidence to prove that accident took place due to rash and negligent driving of car bearing No.AP-03/C-6116 by deceased Ramesh Naidu. As already stated, these cases were tried by different tribunals. In view of finding recorded by this court, dismissal of claim petition in MVC 4524/2010 cannot be sustained. 9. Sri.F.S.Dabali, learned counsel for KSRTC would submit that notwithstanding the fact that claim petitions were filed under Section 163-A of the Motor Vehicles Act, the tribunal should have held contributory negligence against the insurer of car driven by deceased Ramesh Naidu and also KSRTC should have been held liable to pay compensation in equal proportions. 10. In view of my finding that respondent has failed to adduce cogent evidence, the submission of Sri.F.S.Dabali that there was contributory negligence on the part of deceased cannot be accepted. 11. MFA 8840/2011 is filed by claimants in MVC NO.9226/2007 for enhancement of compensation. The claimants are the wife and daughter of deceased Ramesh Naidu. The claim petition was filed under Section 163-A of the Motor Vehicles Act. In the claim petition, it is stated that deceased was earning a sum of Rs.40,000/- per annum. As already stated, deceased Ramesh Naidu was driving the car. The other inmates of car were his parents, wife and child. If the deceased was earning meager sum of Rs.40,000/-per annum, it looks improbable that he was capable of taking his family members in a car from Bangalore to Palamaner. At this juncture, it is relevant to state that distance between Bangalore and Palamaner is about 150 kilometers. It appears claimants have artificially reduced the income of deceased to invoke the provisions of Section 163-A of the Motor Vehicles Act. In the circumstances, there is no scope for enhancement of compensation. The tribunal has awarded compensation in terms of Schedule II of the Motor Vehicles Act. Therefore, KSRTC cannot be heard to say that compensation awarded is excessive. 12. Sri.F.S.Dabali, learned counsel for KSRTC would submit MVC 2229/2008 was filed under Section 163-A of the Motor Vehicles Act. The tribunal has awarded compensation of Rs.30,000/-in the absence of satisfactory evidence. The tribunal should not have awarded compensation of Rs.15,000/- towards medical expenditure and there is no provision to award compensation under the head 'loss of amenities'. The claimant is a girl aged about 3 years. The tribunal has awarded compensation of Rs.30,000/-in the absence of satisfactory evidence. The tribunal should not have awarded compensation of Rs.15,000/- towards medical expenditure and there is no provision to award compensation under the head 'loss of amenities'. The claimant is a girl aged about 3 years. She had suffered fracture of right femur and injuries to head. In terms of Schedule II of the Motor Vehicles Act, she is entitled to compensation of Rs.5,000/-for grievous injury and Rs.1,000/- each for simple injuries. The claimant was treated in Vydehi Institute of Medical Sciences at Bangalore and she was she as admitted in 5.7.2007 and discharged on 6.7.2007. The fracture was reduced by closed reduction and other injuries were treated. In terms of Schedule II of the Motor Vehicles Act, the claimant is not entitled to compensation of Rs.10,000/- towards 'loss of amenities'. Therefore, compensation awarded in MVC 2229/2008 is reduced to Rs.20,000/-. 13. In MVC 8700/2007 (MFA 6897/2010) the tribunal has awarded compensation of Rs.2,17,840/-. The tribunal has determined the income of deceased at Rs.40,000/- per annum and has awarded compensation in terms of Schedule II of the Motor Vehicles Act. Therefore, compensation awarded by the tribunal does not call for interference. 14. In MFA 863/2013 (MVC 4524/2010) claimants have sought for compensation for the death of their mother. The first claimant is a resident of Bangalore. The second claimant is a resident of Gangavaram Mandalam, Palamaner Taluk, A.P. The deceased Savithramma is the mother of claimants. Both the claimants are grown up and married persons. The first claimant has been living in Bangalore. 15. The learned counsel for claimants would submit that claim petition is filed under Section 163-A of the Motor Vehicles Act. Therefore, claimants are entitled to compensation under Schedule II of the Motor Vehicles Act. At this juncture, it is relevant to state that claimants have received compensation for the death of their father by contending that they were depending on their father. There cannot be simultaneous dependency. What is lost to the claimants is the services rendered by deceased. Even if the claim petition is filed under Section 163-A of the Motor Vehicles Act, except in a case where deceased is of less than 15 years of age, in all other cases, there shall be an element of dependency. There cannot be simultaneous dependency. What is lost to the claimants is the services rendered by deceased. Even if the claim petition is filed under Section 163-A of the Motor Vehicles Act, except in a case where deceased is of less than 15 years of age, in all other cases, there shall be an element of dependency. The whole object of the Act is to place dependants/victims of the accident as far as possible in the same financial position in which they were placed before the accident. The claimants were not financially depending on their mother. Therefore, loss of services rendered by the deceased is quantified to determine the loss of dependency. The loss of services is determined at Rs.3,000/-per month and 50% of the amount is deducted towards personal and living expenditure of deceased. Thus, loss of dependency would be Rs.1,500/-per month and capitalized loss of dependency would be Rs.2,34,000/-. In addition to this, claimants are entitled to Rs.4,500/-under conventional heads. Thus, claimants are entitled to total compensation of Rs.2,38,500/- 16. In the result, I pass the following:- ORDER MFA Nos.1745/2011, 6897/2010 and 8840/2011 are dismissed. MFA 3245/2012 is accepted in part. The compensation of Rs.30,000/-awarded by the tribunal in MVC 2229/2010 is reduced to Rs.20,000/-. The rest of the impugned award is confirmed. MFA 863/2013 is accepted in part. The dismissal of MVC 4524/2010 is set aside. The claimants are entitled to compensation of Rs.2,38,500/-from KSRTC with interest at 6% per annum from the date of petition till the date of realization. The amount deposited by KSRTC shall be transferred to the tribunal. In the matter of payment and investment, the tribunal shall follow the directions given by the Supreme Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Mrs. Susamma Thomas and others, reported in AIR 1994 SC 1631 .