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2015 DIGILAW 1158 (KAR)

Managing Director, Karnataka State Road Transport Corporation v. Mallikarjuna @ Mallikarjunachar

2015-10-06

N.K.PATIL, P.S.DINESH KUMAR

body2015
JUDGMENT N.K. PATIL, J. 1. These two appeals respectively by the Corporation and by the claimants are directed against the same impugned judgment and award dated 14.11.2014, passed in MVC No. 2993 of 2013, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), (for short Tribunal). 2. The Tribunal by its judgment and award, has awarded a sum of Rs. 25,85,000/- under different heads with interest at 6% per annum from the date of petition till its realization, fixing entire liability on the part of the driver of the bus belonging to the Corporation as against the claim of the claimants on account of the death of Sri Hemanth Kumar T.M. 3. It is the case of the Corporation that, the quantum of compensation awarded by the Tribunal is on the higher side and disproportionate to the income of the deceased and therefore, it is liable to be reduced and that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of motor bike bearing Reg. No. KA.02.V.959 and therefore, it is liable to be set aside by fixing reasonable negligence on the part of the deceased. Whereas, it is the case of the claimants that, the quantum of compensation and the rate of interest awarded by the Tribunal is inadequate and it requires to be enhanced reasonably. 4. In brief, the facts of the case are:- The claimants are the parents and sisters of the deceased. On account of the death of the deceased Sri Hemanth Kumar T.M. in the road traffic accident, claimants have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation, contending that, on 2.1.2013 at about 12.50 p.m. deceased was going in his motor bike bearing Reg. No. KA.02.V.959 on Cotton-pet Main road in front of Sai Telicom shop, at that time, the driver of the KSRTC bus bearing Reg. No. KA.10.F.89 came in a rash and negligent manner and dashed to the bike in which deceased was going. Due to which, deceased fell down and bus ran over his body and he sustained fatal injuries. Immediately, he was shifted to Victoria Hospital, Bangalore and he succumbed to the injuries sustained in the road traffic accident. 5. No. KA.10.F.89 came in a rash and negligent manner and dashed to the bike in which deceased was going. Due to which, deceased fell down and bus ran over his body and he sustained fatal injuries. Immediately, he was shifted to Victoria Hospital, Bangalore and he succumbed to the injuries sustained in the road traffic accident. 5. It is the further case of the claimants that, deceased was aged about 27 years, hale and healthy prior to the accident, working as Civil Police Constable at Chennamma Achukattu Police Station, Bangalore and drawing the salary of Rs. 16,998/- per month. Due to his untimely death, claimants have suffered loss of dependency as they are entirely depending upon his income, love and affection, apart from mental shock and agony. 6. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence, has allowed the claim petition in part, awarding the compensation of Rs. 25,85,000/- under different heads with interest at 6% p.a. from the date of petition till its realization, fastening entire liability on driver of the bus belonging to the Corporation. 7. Being aggrieved by the said judgment and award, both the Corporation and the claimants have presented these appeals seeking appropriate reliefs as stated supra. 8. We have heard the learned counsel appearing for the Corporation and the learned counsel appearing for claimants in these appeals. 9. The submission of learned counsel Sri D. Vijaya Kumar, appearing for Corporation, is that, the Tribunal has committed an error, much less material irregularity in fixing entire negligence on the part of the driver of the bus belonging to the Corporation without fixing any negligence on the part of the deceased, rider of the Motor bike bearing Reg. No. KA.02.V.959 as two vehicles were involved in the accident, there is equal negligence on the part of the drivers of both the vehicles. No. KA.02.V.959 as two vehicles were involved in the accident, there is equal negligence on the part of the drivers of both the vehicles. To substantiate the said submission, he submitted placing reliance on Ex.P3 Sketch, Ex.P4 Mahazar and Ex.P5 IMV report that, it is crystal clear from the contents of the said documents that no damage is caused to the bus and only damage is caused to the motor bike and from the contents of mahazar it emerges that there is contributory negligence on the part of the deceased, rider of the motor bike as deceased while under the process of overtaking the bus from the left side of the road, met with an accident on account of his own negligence and there is no negligence on the part of the driver of the bus. But this aspect of the matter has not been considered or appreciated by the Tribunal while fixing negligence. Therefore, he submitted that, the Tribunal ought to have appreciated the evidence of RW1 coupled with the contents of Exs.P3 to P5 and atleast, the Tribunal ought to have fixed contributory negligence in the ratio of 50% each i.e. 50% on the part of the driver of the bus belonging to the Corporation and 50% on the part of the deceased, the rider of the motor bike bearing Reg. No. KA.02.V.959. The reasoning given by the Tribunal for fastening entire liability on the part of the driver of the bus belonging to the Corporation is contrary to the evidence on record. Therefore, he submitted that, negligence may be refixed in the ratio of 50% each on the part of the drivers of both the vehicles by setting aside the entire negligence fixed on the part of the driver of the bus. 10. Further, learned counsel appearing for Corporation submitted that, the compensation awarded by the Tribunal is on the higher side and the Tribunal has erred in adding another 50% towards future prospects and applying multiplier of ‘17’ taking the age of the deceased contrary to the law laid down by the Apex Court and this Court while calculating loss of dependency. Further, he submits that the Tribunal has erred in taking the age of the mother of the deceased as 46 years. Further, he submits that the Tribunal has erred in taking the age of the mother of the deceased as 46 years. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by fixing reasonable negligence on the part of the deceased, rider of the motor bike and by reducing the compensation reasonably. 11. Per contra, learned counsel Sri K.T. Gurudeva Prasad, appearing for the claimants interalia, vehemently submitted that, deceased was aged about 27 years, working as Police Constable and drawing the salary of Rs. 16,998/- as per Ex.P9 and therefore, the Tribunal has justified in assessing the income of the deceased at Rs. 16,600/- per month, adding 50% of the same towards future prospects in view of the law laid down by the Apex Court in Sarla Verma’s case reported in 2009 ACJ 1298 and applying Multiplier of ‘17’ taking the age of the deceased as 27 years and therefore, it does not call for interference. Regarding applying multiplier of ‘17’ is concerned, he has submitted placing reliance on the judgment of the Apex Court in the case of Munna Lal Jain and Another vs. Vipin Kumar Sharma and Others, 2015 AIR SCW 3105 that, the Apex Court in para-13 of the said judgment, has held that, the multiplier should be chosen from the table having regard to the age of the deceased and therefore, the Tribunal has justified in adopting multiplier of ‘17’ taking the age of the deceased as 27 years and interference by this Court is not called for. Further, he submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of love and affection, loss of estate and towards transportation of dead body and funeral expenses and what is awarded is inadequate and requires to be enhanced reasonably in the light of the judgment of the Apex Court and this Court. Further, he submitted that the rate of interest awarded is on the lower side and is liable to be enhanced reasonably atleast at 9 to 10% in the light of the judgment of the Apex Court and this Court. Further, he submitted that the rate of interest awarded is on the lower side and is liable to be enhanced reasonably atleast at 9 to 10% in the light of the judgment of the Apex Court and this Court. Further, regarding contributory negligence, he submitted that, there is no force in the submission made by learned counsel appearing for the Corporation that 50% of the negligence should be fixed on the part of the deceased, rider of the motor bike and it is liable to be rejected. To substantiate the said submission, he submitted taking us through the contents of Ex.P1 and the charge-sheet is filed against the driver of the bus which is the conclusive proof and from the contents of Ex.P5 IMV report, there is no negligence on the part of the deceased, rider of the motor bike and the accident has occurred entirely on account of the negligence on the part of the driver of the bus which came from behind the deceased and hit the motor bike due to which, deceased fell down, bus ran over him and sustained fatal injuries and succumbed to the same. Therefore, he submitted that, the reasoning given by the Tribunal for fixing entire negligence on the part of the driver of the bus belonging to the Corporation is just and reasonable and interference by this Court is not called for. 12. After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:- (i) Whether the entire negligence fixed by the Tribunal on the part of the driver of the bus belonging to the Corporation is sustainable in law? (ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? Re: Point No. 1 13. The occurrence of the accident and the death of the deceased are not in dispute. The deceased was aged about 27 years, working as Civil Police Constable and the claimants are his parents and sisters. It is also not in dispute that, two vehicles were involved in the accident, viz. KSRTC bus bearing Reg. No. KA.10.F.89 and the motor bike bearing Reg. No. KA.02.V.959. The deceased was aged about 27 years, working as Civil Police Constable and the claimants are his parents and sisters. It is also not in dispute that, two vehicles were involved in the accident, viz. KSRTC bus bearing Reg. No. KA.10.F.89 and the motor bike bearing Reg. No. KA.02.V.959. Further, it emerges from the material on record that, the Tribunal on the basis of Ex.P1 copy of the FIR and after discussing the same in para-13 of its judgment has observed that, on account of the accident, deceased who was going in his Motor bike fell down and bus ran over his body and he died due to the injuries. Further, the Tribunal has observed that the jurisdictional police have filed a charge-sheet against the driver of KSRTC bus as per Ex.P2 and the contents of Ex.P3 Sketch and Ex.P4 Spot mahazar establish that the accident was due to the negligent driving of KSRTC bus driver and Ex.P5 IMV report goes to show that there was no mechanical defect in the vehicles involved in the accident to cause the accident. It is significant to note that, the Tribunal has erred in not properly appreciating the contents of Ex.P4 and Ex.P5. In Ex.P5 the nature of injuries caused to both the vehicles was spelled out by the independent officer of RTO. From the contents of Ex.P4 and P5, we find some substance in the submission made by learned counsel appearing for the Corporation that there is some negligence on the part of the deceased, rider of the motor bike since in the process of overtaking the bus from left side, he came in front of the bus the accident has caused. Therefore, we are of the considered view after reevaluation of the oral and documentary evidence available on file that there is negligence on the part of the deceased, rider of the motor bike to an extent of 20% and on the part of the driver of bus to an extent of 80%. Accordingly, we hereby set aside the entire negligence fixed by the Tribunal on the part of the driver of the bus belonging to the Corporation and refix the negligence in the ratio of 80:20 i.e. 80% on the part of the driver of the bus and 20% on the part of the deceased, rider of the motor bike. Re: Point No. 2 14. Re: Point No. 2 14. The claimants are the parents and sisters of the deceased. It is the case of the claimants that, deceased was aged about 27 years, hale and healthy prior to the accident, working as Police Constable and drawing the salary of Rs. 16,998/- per month as per Ex.P9 Salary certificate. The Tribunal, taking net income of the deceased at Rs. 16,600/- per month after deducting Rs. 398/- towards allowance, adding 50% of Rs. 16,600/- towards future prospects in the light of the judgment of the Apex Court in Sarla Verma’s case reported in 2009 ACJ 1298 has assessed his total monthly income at Rs. 24,900/- and annually at Rs. 2,98,800/- after deducting 50% towards personal and living expenses of the deceased since he was a bachelor and applying the multiplier of ‘17’ taking the age of the deceased, has awarded a sum of Rs. 25,40,000/- towards loss of dependency. As rightly pointed out by the learned counsel appearing for the claimants, the multiplier of ‘17’ adopted by the Tribunal taking the age of the deceased is just and proper and it does not call for interference in the light of the law laid down by the Apex Court in P.S. Somanathan and Others vs. District Insurance Officer and Another, (2011) 3 SCC 566 wherein, at para-16, the Apex Court has observed that:- “16. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased was looking after the entire family. In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma. Following the same the High Court should have proceeded to compute the compensation on the age of the deceased. The reasoning of the High Court is not correct in view of the ratio in Sarla Verma. Following the same the High Court should have proceeded to compute the compensation on the age of the deceased. Thus, the finding of the High Court is contrary to the ratio in Sarla Verma, which is the leading decision on this question and which we follow.” Munna Lal Jain and Another vs. Vipin Kumar Sharma and Others, (2015) 6 SCC 347 wherein, at para-12, the Apex Court has observed that: “12. In Sarla Verma, at para 19, a two Judge Bench dealt with this aspect in Step 2. To quote: (SCC p.133) “19. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.” Therefore, we are of the considered view that, the compensation of Rs. 25,40,000/- awarded by the Tribunal towards loss of dependency is just and reasonable and it does not call for interference. 15. As rightly pointed out by the learned counsel appearing for the claimants, the compensation of Rs. 45,000/- awarded by the Tribunal towards conventional heads is on the lower side and is liable to be enhanced reasonably. Having regard to the facts and circumstances of the case as referred above and in the light of the judgment of the Apex Court and this Court and the accident is of the year 2013, we award a sum of Rs. 1,00,000/- towards loss of love and affection at the rate of Rs. 25,000/- each to the claimant Nos. 1 to 4 Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the claimants are entitled to the total compensation of Rs. 26,90,000/- instead of Rs. 25,85,000/- awarded by the Tribunal. 16. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In all, the claimants are entitled to the total compensation of Rs. 26,90,000/- instead of Rs. 25,85,000/- awarded by the Tribunal. 16. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the entire compensation instead of 6% awarded by the Tribunal. 17. For the foregoing reasons, the appeal filed by the Corporation and the appeal filed by the claimants are allowed in part. The impugned judgment and award dated 14.11.2014, passed in MVC No. 2993 of 2013, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), is hereby modified, by fixing negligence in the ratio of 80:20 each i.e. 80% on the part of the driver of the Bus belonging to the Corporation and 20% on the part of the deceased, rider of the motor bike bearing Reg. No. KA.02.V.959 and by awarding the compensation of Rs. 26,90,000/- instead of Rs. 25,85,000/- with interest at 9% p.a. from the date of petition till its realization on the entire compensation. Out of the compensation of Rs. 26,90,000/- if 20% (Rs. 5,38,000/-) is deducted towards contributory negligence on the part of the deceased, rider of the motor bike bearing Reg. No. KA.02.V.959, the remaining compensation comes to Rs. 21,52,000. There would be a reduction of compensation of Rs. 4,33,000/- (Rs. 25,85,000/- Rs. 21,52,000/-). The Corporation is directed to deposit the compensation amount with interest at 9% p.a. from the date of petition till its realization, after deducting whatever amount deposited by it till today, within three weeks from the date of receipt of the copy of this judgment. The apportionment and manner of disbursement ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court. The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal forthwith. Draw the award, accordingly. In view of disposal of main matters, the relief sought by the claimants in I.A. No. 2 of 2015 in M.F.A. No. 1382 of 2015 does not survive for consideration. Hence, it is disposed of as having become infructuous. The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal forthwith. Draw the award, accordingly. In view of disposal of main matters, the relief sought by the claimants in I.A. No. 2 of 2015 in M.F.A. No. 1382 of 2015 does not survive for consideration. Hence, it is disposed of as having become infructuous. Learned counsel Sri D. Vijaya Kumar, is permitted to file vakalth for Corporation in M.F.A. No. 1820 of 2015 within four weeks.