Bheemegowda S/o Late Basavegowda v. Managing Director Karnataka State Road Transport Corporation
2020-10-19
S.SUJATHA, SACHIN SHANKAR MAGADUM
body2020
DigiLaw.ai
JUDGMENT : 1. These appeals emanate from the judgment and award dated 02.02.2016 passed in MVC No.162/2013 by the Additional Senior Civil Judge, Ramanagara (‘Tribunal’ for short), whereby the claim petition filed by the legal representatives of the deceased - Nandisha, victim of the road traffic accident, has been partly allowed. 2. The facts in brief are that the petition was filed under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) by the claimants contending that on 27.02.2013 at about 8.30 p.m. when Nandisha was riding motorcycle bearing registration No.KA-02/ED987 on Channapattana – Halagur Road, the driver of the KSRTC Bus bearing registration No.KA-09/F-3559 (offending vehicle) drove the same in a rash and negligent manner and rammed against the motorcycle. As a result, the said Nandisha fell down and succumbed to the injuries. It was averred that the deceased – Nandisha was studying in II year PUC apart from working in Jersy Private Milk Diary and earning a sum of Rs.5,000/- per month and contributing the same for the family; the claimants were entirely depending upon his income. Due to the sudden and untimely death of the deceased, the parents and sister (claimants) lost love and affection, dependency and are suffering from mental shock and agony. Accordingly, they sought for compensation of Rs.50,00,000/-. 3. In response to the notice issued by the Tribunal, the Karnataka State Road Transport Corporation (Corporation) entered appearance through its counsel and filed written statement denying the petition averments. It was contended that the accident had occurred due to the negligence of the deceased – Nandisha. 4. On the basis of the pleadings, the issues were framed and answered in the affirmative in terms of the reasons recorded in the impugned judgment awarding total compensation of Rs.3,55,000/- with interest at the rate of 6% per annum from the date of the petition till its realization. 5. Being aggrieved, the Corporation has preferred MFA No.5078/2016 challenging the finding of the Tribunal on the negligence as well as the quantum of compensation determined; whereas the claimants have preferred MFA No.7359/2016 seeking enhancement of compensation. 6. Learned counsel for the Corporation submitted that the police records indicates that the deceased was a minor aged about 16 years at the time of the accident and was riding the motorcycle without having an effective and valid driving licence along with two pillions.
6. Learned counsel for the Corporation submitted that the police records indicates that the deceased was a minor aged about 16 years at the time of the accident and was riding the motorcycle without having an effective and valid driving licence along with two pillions. This vital aspect has not at all been considered by the Tribunal while fixing the negligence on the driver of the offending vehicle and fastening the liability on the Corporation to satisfy the award. Reference was made to the order passed in C.C.No.54/2013. Learned counsel further argued that the determination of the notional income of the deceased at Rs.40,000/- is wholly arbitrary and unjustifiable. The compensation awarded under the conventional heads is excessive. Accordingly, he sought for the modification of the compensation amount awarded by the Tribunal reducing the same substantially. 7. Learned counsel for the claimants would argue that the compensation awarded by the Tribunal indeed is abysmally low and the same cannot be considered as just compensation in the facts and circumstances of the case. It was submitted that the Tribunal blindly accepting the oral uncorroborated evidence of RW1, awarded meager compensation which certainly suffers from lack of proper appreciation of evidence. Accordingly, he sought for enhancement of compensation. 8. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records. 9. The police records discloses that the deceased – Nandisha was riding motorcycle bearing registration No.KA-02/ED-987 on Channapattana – Halagur road and the driver of the offending vehicle drove the same in a rash and negligent manner which resulted in the accident in question owing to which the said Nandisha succumbed to the injuries. The contention of the Corporation that the driver of the offending vehicle has been acquitted in C.C.No.54/2013, as such no negligence can be attributed on the part of the driver of the offending vehicle does not merit acceptance in view of the settled legal position that the negligence aspect has to be determined in MVC cases on the touch stone of preponderance of probabilities, not required to prove beyond reasonable doubt. The acquittal of the driver of the offending vehicle could not assist the Corporation to get exonerated from the liability. 10.
The acquittal of the driver of the offending vehicle could not assist the Corporation to get exonerated from the liability. 10. Learned counsel for the Corporation vehemently argued that the minor riding the vehicle with two pillions being infraction of law, breach of the Act and Rules being apparent, no liability can be fastened on the insurer. In this regard it is beneficial to refer to the judgment of the Hon’ble Apex Court in the case of Mohammed Siddique and another vs. National Insurance Company Ltd., and Others [Civil Appeal No.79/2020 (08.01.2020)], wherein the Hon’ble Apex Court has categorically held that the fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. 11. It is neither the case of the Corporation that the accident in question occurred as a result of three persons riding on a motorcycle nor the said accident would have been averted, if three persons were not riding on a motorcycle. It is infraction of law which is canvassed before the Court to fix the negligence on the part of the rider of the motorcycle. Any such violation cannot be construed as leading to contributory negligence unless it is established that the triple riding added to the imbalance causing accident in question. No such evidence is let in by the Corporation. The same would not dis-entitle the victim to claim compensation under the beneficial legislation. The evidence of RW.1, the driver of the offending vehicle would not discredit the documentary evidence available to the contrary. As such, the finding of the Tribunal in fixing the negligence on the part of the driver of the offending vehicle can not be faulted with. 12.
The evidence of RW.1, the driver of the offending vehicle would not discredit the documentary evidence available to the contrary. As such, the finding of the Tribunal in fixing the negligence on the part of the driver of the offending vehicle can not be faulted with. 12. As regards quantum, having regard to the age and qualification of the deceased vis-à-vis the age of the parents who have lost their son, the Tribunal keeping in mind the principles enunciated by the Hon’ble Apex Court in Kishan Gopal and another vs. Lala and others reported in 2013 ACJ 2594 , has determined the annual income of the deceased at Rs.40,000/- to reckon the loss of dependency. However, considering the age of the younger parents multiplier of ‘14’ was applied. In our view, the appropriate multiplier is ‘18’ and the deduction towards living and personal expenses would be 50%. Hence, the loss of dependency would be Rs.3,60,000/-. 13. In terms of the dictum of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ( (2017)16 SCC 680 ) and New India Assurance Company Limited vs. Somwati and Others (2020 SCC ONLINE SC 720), the claimants would be entitled to compensation of Rs.80,000/- towards loss of filial consortium (Rs.40,000/- to each parent), Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. 14. For the reasons aforesaid, the total compensation awarded by the Tribunal is modified as under: Sl.No. Particulars Amount [in Rs.] 1. Loss of dependency 3,60,000/- 2. Loss of Filial Consortium 80,000/- 3. Loss of Estate 15,000/- 4. Towards Funeral expenses 15,000/- Total 4,70,000/- 15. Learned counsel for the Corporation submitted that the interim compensation of Rs.15,000/- paid in cash ordered to be deducted as per order dated 17.05.2016 has not been considered by the Tribunal in deducting Rs.35,000/- instead of Rs.50,000/-. On perusing the order of the Tribunal dated 17.05.2016, we are convinced that the interim compensation of Rs.50,000/- has to be deducted from the total compensation. 16. Thus, the claimants shall be entitled to total compensation of Rs.4,20,000/- (4,70,000 – 50,000) with interest at the rate of 6% per annum from the date of the claim petition till the date of realization. 17. Hence, the following: ORDER (i) The appeal filed by the claimants in MFA No.7359/2016 and the appeal filed by the Corporation in MFA No.5078/2016 are allowed in part.
17. Hence, the following: ORDER (i) The appeal filed by the claimants in MFA No.7359/2016 and the appeal filed by the Corporation in MFA No.5078/2016 are allowed in part. (ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.4,20,000/- (Rupees Four Lakhs Twenty Thousand only) as against Rs.3,55,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization. (iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. (iv) The Corporation shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. (v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. (vi) Draw modified award accordingly. (vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith. (viii) All pending I.As. stand disposed of.