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2020 DIGILAW 2205 (KAR)

Group Insurance Fund N W K S R T C Belagavi v. Bharati

2020-11-05

G.NARENDAR, M.I.ARUN

body2020
JUDGMENT G.Narendar, J. - Heard the learned counsel for the appellant and the learned counsel for the respondent-caveator. The appellant is the Corporation. Though the appeal is listed for consideration of the Interlocutory Application for permission to withdraw the amount in-deposit, with the consent of the learned counsels, the appeal is taken up for disposal. 2. The brief facts necessary for disposal of this appeal are as under:- That the husband of the first respondent was riding a motorcycle bearing No.KA 22/X-8405 and one Lakkappa Beeranagudi was riding pillion and that they were proceeding from Kannur village to Shivapur and at about 6.00 a.m. when they reached Konnur Dam public Road, they met with an accident involving the offending bus bearing No.KA 25/F- 2083. 3. It is the case of the appellant that the bus was driven in a rash and negligent manner endangering human life and limb and that on account of the rash and negligent driving, the accident occurred, resulting in grievous injuries to the deceased, who succumbed to the injuries on the way to the hospital. It was contended that he was a goundi/mason and he was earning Rs.15,000/- per month. In support of his contention, PW.3 is examined, who has spoken on the same lines. 4. It is contended by the learned counsel for the appellant that the tribunal erred in not fastening the liability on the deceased as admittedly, the motorcycle hit the right rear end of the bus and hence it cannot be construed that the bus was driven in a rash and negligent manner and that the tribunal erred in not appreciating the version of RW.1, the driver of the bus, that the accident occurred when the deceased was attempting to overtake a jeep which was ahead of them and in the process hit the rear end of the bus. The Tribunal has discussed the same in paragraphs 14,15,16 which reads as follows:- REASONS 14. Point No.l: - The occurrence of accident between the bike driven by deceased and offending bus bearing No.KA-25/F-2083 is not in dispute. In the cross-examination of PW. 1, on behalf of respondent, it is suggested that deceased rode the bike negligently and dashed to the front portion of the bus. Similar suggestion is found in cross-examination of PW.2 also by the respondents. This suggestion implies that there is head on collusion between the two vehicles. In the cross-examination of PW. 1, on behalf of respondent, it is suggested that deceased rode the bike negligently and dashed to the front portion of the bus. Similar suggestion is found in cross-examination of PW.2 also by the respondents. This suggestion implies that there is head on collusion between the two vehicles. In view of said suggestion the submission of learned counsel for respondent that deceased dashed to the bus at its rear right side is not acceptable. In view of the said suggestion much importance cannot be given to the area of damage to the bus mentioned by the M V I in Ex.P.6. 15. Ex.P.4 is hand sketch depicting the place of accident. According to RW.I at the time of accident he was proceeding towards Gokak. That means he was proceeding from west to east at the spot of accident. Near the place of accident the road is curved towards western side. The spot of the accident, as indicated in Ex.P.4 hand sketch map, is very near to southern edge of the said road. These facts would indicate that the driver of the bus drove it to the extreme right side of the road i.e. towards southern side. The spot of the incident also shows that deceased was on his left side. The very fact that at the curve of the road the drive of the bus has come to the extreme right side of him would indicate that at such curve he has driven the bus in high speed, which having regard to the nature of road, its width amounts to an act of negligence on his part. Negligence on his part is also on account of is failure to take precaution to keep sufficient distance from the bike coming infront of him. 16. In his evidence RW.I states that the deceased while over taking a Cruser jeep infront of him dashed to it and fell to the ground. In my opinion it is nothing but an imaginary story of RW.I. If the accident was due to dashing to Cruser jeep then he would have given the registration number of said vehicle either in the objection statement or in his statement before the police during the investigation. Thus his version is not believable. In my opinion it is nothing but an imaginary story of RW.I. If the accident was due to dashing to Cruser jeep then he would have given the registration number of said vehicle either in the objection statement or in his statement before the police during the investigation. Thus his version is not believable. Therefore holding that death of deceased and sustaining of injury by PW.2 is due to negligent driving of bus by RW.I I answer this point in affirmative. From the above, it is apparent that the tribunal has refused to appreciate the version of RW.1 for the reason that the version is an after-thought, as the driver who is examined as RW.1 failed to make a statement of this nature before the police at the earliest point of time, which would have been the natural conduct and hence the conclusion of the tribunal that the version is not believable cannot be faulted with as being irrational or illogical muchless perverse. 5. The learned counsel for the appellant- Corporation would submit that the Tribunal has adopted the income of Rs.12,000/- per month without there being any corroborative material. In our opinion, there is substance in the contention canvassed by the appellant. In paragraph-17, the tribunal has disbelieved the evidence of PW.3 on the premise that no material has been produced by PW.3 to either demonstrate that he was working under contractor as neither any Muster Roll or Register to demonstrate that he was paying him the said wages or even to demonstrate that the deceased was employed with him, has been produced. 6. If that be the conclusion, we are of the opinion that the Tribunal erred in accepting the version of the claimants that the deceased was indeed a mason. Be that as it may, the tribunal has fixed the income at Rs.12,000/- and as per the Lok Adalat chart which is adopted as a Thumb Rule, in the absence of proof of income in respect of the claims of accident that occurred in the year 2018, the income adopted is Rs.11,750/-. Though the income adopted by the tribunal is marginally on the higher side, we are not inclined to interfere with the same. 7. Though the income adopted by the tribunal is marginally on the higher side, we are not inclined to interfere with the same. 7. However, as rightly pointed by the learned counsel for the appellant the Tribunal has erred in awarding a sum of Rs.50,000/- to each of the claimants under the head loss of love and affection which in our opinion and as rightly pointed out by the learned counsel for the appellant is contrary to the law laid down by the Hon ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED. Vs. PRANAY SETHI, (2017) 16 SCC 680 . 8. Accordingly, we are inclined to partly allow the appeal in so far as it pertains to the award under the head loss of love and affection. However, the appellant s counsel is also right in contending that the rate of interest awarded at 9% is on the higher side and is more than the rate of interest awarded by the banks. In that view of the matter, we are of the opinion that 6% rate of interest would be equitable and justifiable. 9. Accordingly, the compensation awarded by the Tribunal at Rs.25,90,000/- is reduced to Rs.24,40,000/-with interest at 6% per annum from the date of the petition till the date of reasliation. The compensation shall be deposited before the Tribunal within a period of two months. At this stage, the learned counsel for the appellant would submit that in view of the pandemic, the Corporation has been facing a severe economic stress as the number of passengers has drastically dipped and hence extended time is required. Accordingly, four months time is granted to the appellant to satisfy the award. The amount in-deposit be transmitted to the tribunal. Out of the total compensation amount, a sum of Rs.10,00,000/- shall be kept in Fixed Deposit in the name of the second petitioner - minor till he attains the age of 22. Further, a sum of Rs.5,00,000/- each shall be kept in Fixed Deposit in the name of the first petitioner and the third petitioner respectively for a period of 5 years. The remaining amount shall be released to the petitioners. The 1st and 3rd petitioners are entitled to withdraw the accumulated interest periodically. Registry to draw up the decree accordingly.