IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE *20TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.5891 OF 2013 (MV) BETWEEN THE DIVISIONAL CONTROLLER, OWNER-CUM-CUSTODIAN-INSURER, OF KSRTC BUS BEARING NO.KA-17-F-1097, SARIGE BHAVAN, K.H. DOUBLE ROAD, SHANTHINAGAR, BANGALORE-560 027.
NOW THROUGH, THE CHIEF LAW OFFICER, KSRTC, BANGALORE.
... APPELLANT (BY SRI. K. NAGARAJA, ADVOCATE) AND 1. SMT. S.T. GOWRI, W/O. LATE M.H. ESHWARAPPA, AGED ABOUT 44 YEARS, 2. SMT. M.E. ASHA, D/O. LATE M.H. ESHWARAPPA, AGED ABOUT 24 YEARS, BOTH ARE R/AT NANDINI NILAYA, OPP. TO ACQ THYAGARAJA LAYOUT, TARIKERE, CHICKMAGALORE DIST.
*Corrected Vide Chamber Order dated 14.06.2019 NOW RESIDING AT SATHYA SAIBABA NILAYA, 2ND CROSS, NES EXTENSION, MALAVALLI TOWN, MANDYA DIST.
... RESPONDENTS (BY SRI. NITHYANANDA V. NAIK, ADVOCATE) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.04.2013 PASSED IN MVC NO.958/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MALAVALLI, AWARDING A COMPENSATION OF RS.12,28,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR FURTHER HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT This appeal is preferred by the KSRTC challenging the judgment and award dated 09.04.2013 passed in MVC No.958/2012 on the file of the Court of Senior Civil Judge, MACT, Malavalli, wherein the Tribunal awarded a total compensation of Rs.12,78,500/- to the claimants for the death of one M.H.Eshwarappa who died in a road traffic accident on 03.03.2012.
2. I have heard the learned counsel for the appellant and the learned counsel for the respondents.
3. The claimants are the widow and daughter of the deceased. It is the case of the claimants that on 03.03.2012 at about 2.35 pm, the deceased while riding the motor cycle bearing No.KA-18-V-3929 from Tarikere town to his house and when he reached in front of B.E.O office, Tarikere and while intending to cross the road, at that time a KSRTC bus bearing No.KA-17-F-1097 which was driven by its driver in rash and negligent manner dashed against the motor cycle from behind and on account of the said accident, he fell down and sustained head injuries and died at the spot. It is the further case of the claimants that the deceased was aged about 59 years and he was employed in Vignyan Industries Limited, Haliyur, Tarikere and getting a monthly salary of Rs.16,431/-.
4. The claim petition was filed seeking a total compensation of Rs.25,60,000/- before the Tribunal.
The wife of deceased was examined as PW 1 and Exhibits P1 to P9 were got marked. On behalf the respondent RW1 i.e., the driver of the KSRTC bus was examined. The Tribunal after considering the evidence and material on record awarded a total sum of Rs.12,28,500/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit. The present appeal is preferred on the point of negligence attributed to the driver of the KSRTC bus.
5. It is the contention of the learned counsel for the appellants that the evidence and material on record goes to show that the accident did not occur as stated by the claimants and it is not on account of rash and negligent driving by the driver of KSRTC bus. He would submit that according to the claimants, the offending bus came from behind and hit the motor cycle when the deceased was trying to cross the road. However, there are no damages caused to be motor cycle on its back side which is evident from the IMV report. He would submit that the FIR, IMV Report and other documents clearly goes to show that the accident was on account of the fault of the rider of the motor cycle.
6. Learned counsel for the appellant has filed I.A.No.1/2015 for production of additional documents thereby intending to produce the photos pertaining to the accident. It is his contention that the accident was entirely due to the rash and negligent driving by the deceased himself who was trying to overtake a lorry and dashed against the KSRTC bus which was coming from the opposite direction and which was on its proper side.
7. It is also the contention of the learned counsel for the appellant that the Tribunal was not proper in taking the income of the deceased by placing reliance on Ex.P-7 without the evidence of the person, who issued the said certificate. He would point out that in Ex.P-7, there is a double entry showing the amount paid towards dearness pay as well as dearness allowance. Hence, he submits that the examination of the employer or the person who issued Ex.P-7 was very much necessary to clarify the same. In view of the non-examination of the employer, an adverse inference has to be taken and the salary certificate at Ex.P-7 cannot be accepted. Accordingly, he seeks to allow the appeal.
8. The learned counsel for the respondents- claimants on the other hand vehemently contended that the FIR has been registered against the driver of the KSRTC bus in question, wherein it is stated that the accident was due to the rash and negligent driving by the driver of KSRTC bus. Charge sheet is also filed against the driver of the bus. It is his contention that the bus in question dashed against the motor cycle from behind and the rider of the motor cycle died on the spot on account of the accident caused by the offending vehicle.
9. The learned counsel for the respondents- claimants having filed his objection to the IA filed by the learned counsel for the appellant seeking production of additional documents such as photos, contended that though the appellants had sufficient opportunity to produce the said photos at the earliest point of time, the same has not been produced and therefore at this stage, the same cannot be taken into consideration. He would further submit that the salary certificate marked as Ex.P-7 is issued by the Manager of Vignan Industries Limited, wherein the deceased was working and therefore merely because the author of Ex.P-7 was not examined, the said salary certificate cannot be held to be disproved. Accordingly, he seeks to dismiss the appeal.
10. It is the case of the claimants that while the deceased was riding his motor cycle bearing registration No.KA-18-V-3949 from Tarikere Town to his house and when he came in front of BEO Office, Tarikere on NH-206 and while he was intending to cross the road, at that time, a KSRTC bus bearing registration No.KA-17-F-1097 which was driven by its driver in a rash and negligent manner came from behind and dashed the motor cycle and on account of which, the deceased sustained grievous injuries and died at the spot.
11. The wife of the deceased was examined as PW-1, certified copy of FIR and complaint has been marked as Ex.P-1, Ex.P-2 includes copies of Inquest mahazar and Ex.P-3 is a copy of the postmortem report. Ex.P-4 is the copy of index of charge sheet, Ex.P-5 is the copy of mahazar, Ex.P-6 is the copy of IMV report, Ex.P-7 is the quotation bills regarding the damage to the vehicle.
12. On perusal of the FIR and charge sheet, it is seen that the FIR was lodged against the driver of the bus and charge sheet was filed against him after concluding the investigation. The complaint is lodged by one R. Santosh. According to the complaint, on 03.03.2012 at about 2.35 p.m., the bus in question was driven by its driver in a rash and negligent manner coming from M.G. Circle and it dashed against the motor cycle bearing registration No.KA-18-V-3929 when the deceased was trying to take a turn towards 101 Road. The pleading of the claimants in the claim petition is to the effect that the deceased who was trying to cross the road, at that time, a KSRTC bus dashed against the said motor cycle. According to the claimants, the KSRTC bus dashed against the motor cycle from behind. However, the same is not stated in the FIR. Even otherwise, IMV report marked as Ex.P-6 does not indicate any damage caused to the motor cycle on its back side. The photos produced by the learned counsel for the appellant also does not show any damage caused to the motor cycle on its back side. Hence, the contention of the learned counsel for the respondents that the bus dashed against the motor cycle from behind cannot be accepted. It is the case of the claimants that the accident occurred when the deceased was trying to cross the road. Therefore, the finding recorded by the Tribunal while answering Issue No.2 that the accident was solely due to the rash and negligent driving of the driver of the KSRTC bus may not be proper. RW-1 is the driver of the offending vehicle, examined by the respondent. He has deposed that on 03.03.2012 at about 2.35 pm, while he was driving the bus from Tarikere towards Shivamogga and when he reached near Tarikere Police Station, at that time, deceased while trying to overtake a lorry from the opposite direction came and dashed the bus and caused the accident.
13. It is no doubt true that the FIR was lodged against the driver of the KSRTC bus and charge sheet was also filed. However, merely because the FIR and charge sheet was filed against the driver of the offending vehicle it can not be said that there is no contributory negligence on the part of the deceased in causing the accident. From the evidence and material on record, it can be seen that even the deceased was at fault. The claimants have failed to establish that the accident was solely on account of the rash and negligent driving by the driver of the bus and that he dashed against the motor cycle from behind and caused the accident. Considering the evidence and material on record, I am of the view the contributory negligence on the part of the rider of the motor cycle and the driver of the bus is to an extent of 25% : 75%.
14. The Tribunal after considering the salary certificate at Ex.P-7, took the income of the deceased at Rs.16,431/- per month. As rightly contended by the learned counsel for the appellant, it can be seen that there are separate entries with regard to basic pay and basic allowances in Ex.P-7. The author of Ex.P-7 has not been examined. It is not clarified with regard to the said two entries. In the absence of the evidence of the author of Ex.P-7, it cannot be said that the deceased was having a salary of Rs.16,431/- per month. In Ex.P-7, the basic pay is shown as Rs.5,810/- at sl.no.1, dearness pay is shown as Rs.4,276/- at Sl.No.4 and at sl.no.5 DA is shown as Rs.5,842/- apart from other allowances. As observed supra and without there being any justification to accept the salary certificate showing dearness pay and dearness allowances, it is just and proper to accept the DA to consider the salary for arriving at just compensation. Therefore, the salary of the deceased can be taken at Rs.12,155/- per month. The deceased was aged about 59 years and therefore, adding 10% to the said income towards future prospects and deducting 1/3rd towards personal expenditure, the salary of the deceased comes to Rs.8,913.33. The multiplier applicable to his age group is 9. The total compensation for which the claimants are entitled towards ‘loss of dependency’ would be Rs.9,62,640/- (Rs.8913.33x12x9). The Tribunal has awarded a sum of Rs.20,000/- towards loss of love and affection, Rs.10,000/- towards ‘loss of consortium’, Rs.2,000/- towards ‘transportation of dead body’ and Rs.10,000/- towards ‘funeral expenses’ apart from awarding vehicle repair charges of Rs.53,250/-. The total compensation of Rs.22,000/- awarded by the Tribunal towards ‘loss of consortium’, ‘transportation of dead body’ and ‘funeral expenses’ is inadequate. The claimants are entitled for a sum of Rs.70,000/- under the conventional heads. Sum awarded towards love and affection is enhanced from Rs.20,000/- to Rs.25,000/-. Therefore, the claimants are entitled for a total compensation for Rs.11,10,890/- under the following heads.
Sl.
No.
Particulars Amount
15. Considering the contributory negligence attributed by the deceased, the claimants are entitled for 75% of the total compensation (Rs.11,10,890/-) i.e., Rs.8,33,167.50/- rounded off to Rs.8,34,000/- with interest at 6% per annum from the date of petition till the date of deposit. Accordingly, I pass the following :
ORDER The appeal is allowed in part.
The judgment and award dated 09.04.2013 passed by the Senior Civil Judge and MACT, Malavalli, Bangalore in MVC No.958/2012 is hereby modified.
The claimants are entitled for a compensation of Rs.8,34,000/- with 6% interest per annum from the date of petition till its deposit.
The appellant – Corporation shall deposit the above amount less Rs.50,000/- already paid as interim compensation, within a period of four weeks from the date of receipt of a copy of this judgment.
Out of the compensation awarded along with interest, respondent No.1, the wife of the deceased shall be entitled to 80% and the respondent No.2 shall be entitled to 20% of the total compensation.
The amount in deposit shall be transmitted to the Tribunal.
I.A.No.1/2015 is disposed of.
Sd/- JUDGE snc