IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.819/2016 (MVC) BETWEEN:
1. SMT CHANDRAMMA W/O LATE SHANTHARAJU, AGED ABOUT 46 YEARS, 2. S RAVI S/O LATE SHANTHARAJU, AGED ABOUT 30 YEARS, 3. S VYRAMUDI S/O LATE SHANTHARAJU AGED ABOUT 26 YEARS, ALL ARE R/O BEHIND CHIKKAGARADI, GAMBI ATAAVO, GANJAM, K G ROAD, S R PATNA, MANDYA, DISTRICT (BY SRI. RAJA L., ADV.) AND THE MANAGING DIRECTOR CUM INTERNAL INSURANCE CO LTD KSRTC, KSRTC BUS STAND ... APPELLANTS OPPOSITE TO KEB, MC ROAD, MANDYA (BY SRI. K NAGARAJA, ADV.) ... RESPONDENT THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.09.2015 PASSED IN MVC NO.1893/12 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants challenging the judgment and award dated 28.9.2015 passed by the II Addl. Senior Civil Judge & Addl. MACT, Mandya in MVC 1893/2012.
2. Briefly, the facts of the case are that on 24.09.2012, Mr.Shantharaju was riding his Honda Activa bearing Registration No.KA-55-K-2455 from Ganjam towards Mandya side, on the left side of the road. When he was proceeding near U-turn, Byadarahalli Cross on Mandya-Bangalore main road, a KSRTC bus bearing Registration No.KA-17-F-1119 was being driven by its driver in a rash and negligent manner came from Mandya side towards Pandavapura and dashed against his motorcycle. As a result, Shantharaju sustained grievous multiple injuries and was shifted to the Government Hospital and inspite of best treatment, he succumbed to injuries.
3. Since the appellants lost the sole bread earner of the family, they filed the claim petition before the learned Tribunal. In order to buttress their case, the son of the deceased was examined as PW-1 and one eye witness as PW-2, and submitted 9 documents. On the other hand, the KSRTC examined a single witness as RW-1 and submitted one document. After appreciation of the evidence, the Tribunal has held that both the rider of the motorcycle i.e., the deceased and driver of KSRTC bus have equally contributed to the accident and has granted compensation of Rs.3,09,600/- after deducting 50% negligence on the part of the deceased. Being aggrieved by the same, the present appeal is filed.
4. The learned counsel for the appellants submits that the Tribunal has erred in holding that both the rider of the motorcycle i.e., the deceased and driver of KSRTC bus have equally contributed to the accident. Spot sketch marked at Ex.P-3 is very clear that the rider of the motorcycle was riding the motorcycle on the highway slowly and cautiously and the bus came in the opposite direction and took U- turn in a negligent manner which resulted in the accident. He further submits that even though the claimants have claimed that the deceased was earning Rs.35,000/- per month by doing fruit selling business, but the Tribunal has taken Rs.6,000/- which is on the lower side. Therefore, he prays for allowing the appeal.
5. Per contra, the learned counsel for the KSRTC submits that as per Sketch Ex.P-3, the width of the road is 24 feet and the bus had already crossed 20 feet distance and only 4 feet distance was to be crossed. The accident has occurred due to major negligence on the part of the rider of the motorcycle. Further, even though the claimants claim that the deceased was earning Rs.35,000/- per month, there is no supporting documents to prove the same. There is no error in the finding of the Tribunal. Therefore, he prays for dismissal of the appeal.
6. Heard the learned counsel for the parties, and perused the records.
7. It is not in dispute that Mr.Shantharaju died in a road traffic accident occurred on 24.9.2012.
Regarding negligence:
8. As per spot sketch Ex.P-3, it is clear that the KSRTC bus which is taking U-turn in the Highway and passing towards Pandavapura, should have taken precaution while crossing the road since vehicles will be passing on the highway in a high speed. On perusal of the sketch and Mahazar drawn by the police, it is clear that both the vehicles have contributed to the accident. But major contribution can be attributed on the driver of the KSRTC bus. Therefore, the finding of the Tribunal on the ground of negligence is modified. It is held that the accident has occurred due to contributory negligence at the rate of 70% on the part of the driver of the KSRTC bus and 30% on the part of the rider of the motorcycle i.e., deceased.
Regarding Quantum 9. The claimants claim that the deceased was earning Rs.35,000/- per month by doing fruit selling business. But they have not established the same by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the deceased notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2012, the income should be taken notionally as Rs.7,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the income of the deceased as merely Rs.6,000/- per month. Therefore, this Court enhances the income of the deceased from Rs.6,000/- to Rs.7,000/- per month. Further, the Tribunal is unjustified in deducting 50% towards personal expenses of the deceased. Since, the claimants are the wife and children of the deceased, as per decision of the Hon’ble Supreme Court in the case Sarala Verma, the Tribunal ought to have deducted 1/3rd instead of deducting 50% of the income towards personal expenses of the deceased. Accordingly, the compensation under the head "loss of dependency" needs to be recalculated.
Monthly income - 7,000/-
-
Add: 15% towards future prospects -
Total -
Less: 1/3rd towards personal expenses 1,050/-
8,050/-
2,683/-
Actual monthly income Multiplier - 5,367/-
- 13 Loss of dependency 5,367 x 13 x 12 - Rs.8,37,252/-
10. Further, the compensation awarded by the Tribunal under other heads remains unaltered.
11. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 28.9.2015 passed by the II Addl. Senior Civil Judge & Addl. MACT, Mandya in MVC 1893/2012, stands modified. The claimants are entitled to receive the following compensation:
12. The KSRTC is directed to deposit the entire compensation amount i.e., Rs.7,12,777/-, along with interest @ 9% per annum from the date of filing of the claim petition, till the date of realization within a period of four weeks from the date of receipt of the certified copy of this judgment, after deducting the amount, if any already deposited.
The amount so deposited shall be apportioned in accordance with the directions of the learned Tribunal.
The compensation shall be disbursed, after proper identification of the claimants-appellants.
Sd/- JUDGE DM