IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MFA No.8165/2015 C/W MFA No.8421/2015 (MV) In MFA No.8165/2015 BETWEEN:
THE MANAGING DIRECTOR K.S.R.T.C SHANTHINAGAR K.H.ROAD BENGALURU – 560027 NOW BY THE MANAGING DIRECTOR N.E.K.R.T.C CENTRAL OFFICES, SARIGE SADANA GULBARGA – 585101 REPRESENTED BY ITS CHIEF LAW OFFICER …APPELLANT (BY SRI F.S.DABALI, ADVOCATE) AND:
1. SMT.BUJIYA DEVI W/O. LATE RAJENDRA CHAUHAN AGED ABOUT 44 YEARS 2. SRI ANJANI S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 25 YEARS 3. SRI. RAJESH S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 23 YEARS 4. SMT. MANJAY D/O. LATE RAJENDRA CHAUHAN AGED ABOUT 20 YEARS 5. KUMARI MAMATHA D/O. LATE RAJENDRA CHAUHAN AGED ABOUT 17 YEARS 6. MASTER RAJKUMAR S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 13 YEARS RESPONDENTS NO.5 & 6 ARE MINORS REPRESENTED BY THEIR MOTHER, THE 1ST RESPONDENT, BUJIYA DEVI ALL THE RESPONDENTS ARE RESIDING AT SARAYA GULAB RAI VILLAGE BELTHARA ROAD, DISTRICT BALLIA STATE – UTTAR PRADESH (UP) – 277001 BUT WRONGLY SHOWN AS R/A SHRAYAGUR, BRUJ VILLAGE YAKAHILL POST, IN THE CAUSE TITLE BEFORE THE TRIBUNAL ... RESPONDENTS (BY SRI P.SHIVAKUMAR, ADVOCATE) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.04.2015 PASSED IN MVC NO.4081/2014 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.13,11,300/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION IN ITS ENTIRETY FROM RESPONDENT.
IN MFA NO.8421/2015 BETWEEN 1. SMT. BUJIYA DEVI W/O. LATE RAJENDRA CHAUHAN AGED ABOUT 44 YEARS 2. SRI ANJANI S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 25 YEARS 3. SRI RAJESH S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 23 YEARS 4. KUMARI. MANJAY D/O. LATE RAJENDRA CHAUHAN AGED ABOUT 20 YEARS 5. KUMARI. MAMATHA D/O. LATE RAJENDRA CHAUHAN AGED ABOUT 17 YEARS 6. MASTER. RAJKUMAR S/O. LATE RAJENDRA CHAUHAN AGED ABOUT 13 YEARS SINCE THE APPELLANT NOS.5 AND 6 ARE MINORS THEY ARE REPRESENTED BY THEIR MOTHER AS NATURAL GUARDIAN- APPELLANT NO.1 HEREIN ALL ARE R/AT SHRAYAGUR BRUJ VILLAGE YAKAHILL POST BALIYA DISTRICT UTTAR PRADESH …APPELLANTS (BY SRI P.SHIVAKUMAR, ADVOCATE) AND THE MANAGING DIRECTOR K.S.R.T.C K.H.ROAD SHANTHINAGAR BENGALURU – 560027 …RESPONDENT (BY SRI F.S.DABALI, ADVOCATE) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.04.2015 PASSED IN MVC NO.4081/2014 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE & MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are preferred by the claimants and appellant-Corporation assailing the judgment and award dated 16.04.2015 passed in MVC No.4081/2014 on the file of Motor Accident Claims Tribunal and Small Causes Court, at Bengaluru.
2. Being not satisfied with the quantum of compensation awarded by the tribunal, the claimants have preferred MFA No.8421/2015 seeking enhancement of compensation. MFA No.8165/2015 is filed by the appellant-
Corporation challenging the quantum of compensation as well as liability fixed on them to compensate the claimants.
3. The claimants are the wife and children of deceased Rajendra Chauhan. The claimants filed the claim petition under Section 166 of M.V.Act, seeking compensation due to the death of one Rajendra Chauhan. It is stated in the claim petition that on 14.07.2014, when the deceased was standing to cross the road from Thyamagondlu to T.Begur side on Tumkuru - Bengaluru Highway - NH.4 road, the KSRTC bus bearing No.KA- 34 F-1125 came with high speed in a rash and negligent manner and dashed against the deceased. Due to which, the deceased fell down and died at the spot.
4. The respondent-Corporation in MFA No.8421/2015 is the RC owner and insurer of the bus. On service of summons, the respondent-Corporation filed its statement of objections denying the petition averments. Further, it is stated that because of the total negligence on the part of the deceased who tried to cross the road without seeing the bus, the accident took place. The first claimant who is the wife of the deceased examined herself as PW.1 and got marked 18 documents as Exs.P1 to P18. Respondent-Corporation has examined driver of the bus as RW.1. The tribunal on analyzing the material on record awarded the compensation under the following heads:-
1. Loss of dependency Rs.9,36,000/- (Rs.7,500 x 12 x 4/5 x 13) 2. Add 30% of future prospectus Rs.2,80,800/-
3. Loss of Consortium to P-1 Rs. 50,000/-
4. Loss of Love and Affection Rs. 80,000/- (P-2 to P4, Rs.10,000/- each P-5 & 6, Rs.25,000/- each) 5. Loss of Estate Rs. 90,000/- (P-1 to P-4, Rs.10,000/- each P-5 & 6, Rs.25,000/-) 6. Transportation of dead body Rs. 20,000/- and Funeral Expenses Total Rs.14,56,800/-
5. While awarding the compensation to the claimants, the tribunal assessed the income of the claimant at Rs.7,500/- per month and added 30% to the income of the deceased towards future prospects. The claimants being not satisfied with the quantum of compensation awarded by the tribunal are before this Court. Whereas, the appellant-Corporation is before this Court in MFA No.8165/2015 challenging the quantum of compensation as well as liability fixed on them.
6. Heard the learned counsel for the claimants and respondent-Corporation. Perused the records.
7. Having heard the learned counsel for the parties and on perusal of the records, the following questions arise for consideration:
a) Whether the tribunal is justified in fixing 10% contributory negligence on the part of the deceased?
b) Whether the claimants would be entitled for enhanced compensation?
8. Answer to the above questions are in the affirmative for the following reasons:
Learned counsel for the appellant-Corporation in MFA No.8165/2015 contends that the tribunal has committed an error in holding that the deceased was responsible for contributory negligence only to an extent of 10%. It is his submission that the accident occurred solely due to the negligence of the deceased who tried to cross the National Highway by referring to Ex.P3 – Sketch. Therefore, the appellant–Corporation cannot be held responsible for the accident. He further submits that the tribunal erred in adding 30% of the income of the deceased towards future prospects. But the tribunal ought to have added 25% to the income towards future prospects as the deceased was aged about 48 years at the time of the accident, in view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680. He also further submits that the compensation awarded towards conventional heads is too excessive. Further, it is his contention that the tribunal has deducted 1/4th towards the personal expenses of the deceased, which is incorrect. He invites attention of the Court that the claimant Nos.2 to 4 are majors, as such, 1/3rd is to be deducted towards the personal expenses.
9. Per contra, learned counsel for the claimants would submit that the accident had taken place on the National Highway. It is stated by the learned counsel for the claimants that the deceased was standing by the side of the road, at that time, the offending bus came in a rash and negligent manner and dashed against the deceased. The accident took place due to the total negligence of the driver of the offending bus. Further, he submits that income of the deceased assessed by the tribunal at Rs.7,500/- per month is on the lower side. It is stated by the claimants that the deceased was earning a sum of Rs.8,000/- per month and the accident is of the year 2014. The tribunal ought to have taken the income of the deceased as stated by the claimants at Rs.8,000/- per month. Learned counsel relying on the decision of Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram, reported in 2018 SCC Online SC 1546 submits that the claimants are also entitled for parental consortium. Thus, he prays for enhancement of compensation.
10. The contention of the learned counsel for the appellant-Corporation in MFA No.8165/2015 is that due to the negligence of the deceased, the accident took place. Ex.P3 is the sketch of the spot where the accident had taken place. The sketch clearly indicates that the bus was coming from Tumakuru side to Bengaluru. The accident had taken place on the junction of Tumakuru and Bengaluru and Tamagondlu – T.Begur cross. Normally, when the bus reaches the junction, the driver ought to have slow-down the bus. It is seen from the sketch that the accident had taken place at the extreme left side of the highway from Tumakuru – Bengaluru road. RW.1 is the driver of the bus, he admits in the cross-examination that police have filed charge sheet against him. He also admits that departmental enquiry is initiated against him with regard to the accident. In the chief- examination he has stated that he was driving the bus slowly and cautiously, but the deceased suddenly came in front of the bus to cross the road. But his evidence is not corroborated by any other evidence. It is the case of the claimants that the deceased was standing by the side of the road to cross the national highway. When he was standing on the extreme left side of the road, the bus appears to have come from Tumkuru side and dashed against the deceased. The sketch at Ex.P3 shows that there was no zebra crossing. Looking to Ex.P3 and police records, the tribunal has rightly fixed the contributory negligence on the part of the deceased to an extent of 10%. The contention of the respondent-Corporation that the accident occurred solely due to the negligence of the deceased cannot be accepted when the evidence of RW.1 and Ex.P3 are examined. Thus, said contention of the respondent-Corporation is rejected.
11. The accident is of the year 2014. The income of the deceased assessed by the tribunal at Rs.7,500/- per month is on the lower side. The claimants have stated that the deceased was earning Rs.8,000/- per month. This Court and the Lok Adalaths while determining the compensation in Motor Vehicles Accident cases would take notional income for the accidents of the year 2014 at Rs.8,500/- per month. In the case on hand in the absence of any material to indicate income of the deceased, the notional income of the deceased could be taken at Rs.8,500/- per month. The deceased was aged about 49 years and as per the decision of the Hon’ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi supra, 25% of the income is to be added towards future prospects of the deceased. The compensation awarded by the tribunal under the conventional heads is too excessive. The claimants would be entitled for Rs.70,000/- under the head ‘conventional head’. As per the Magma Insurance Co. Ltd., supra, the claimant Nos.5 and 6 who are the minors would be entitled to Rs.40,000/- each towards ‘parental consortium’. The tribunal has deducted 1/5th towards the personal expenses of the deceased. The claimant Nos.2 and 3 are aged about 24 years and 22 years respectively, they are majors and the tribunal excluding the said claimants as not dependants ought to have deducted 1/4th towards the personal expenses of the deceased. Thus, the claimants would be entitled for modified compensation as follows:
SL.
No.
Particulars Amount in (Rs.) Loss of dependency 1. (8,000+25%=10,000) (10,000-1/4=7,500) (7,500 x 12 x 13) 11,70,000/-
70,000/-
2. Conventional heads Parental consortium for 3. claimant Nos.5 and 6 Rs.40,000/- each 80,000/-
Total 13,20,000/-
Thus, the claimants would be entitled for total compensation of Rs.13,20,000/- as against Rs.14,57,000/- awarded by the tribunal. But as the deceased was held responsible to 10% contributory negligence, the claimants would be entitled for 90% of the total compensation i.e, Rs.11,88,000/- with interest at 9% p.a. The apportionment and deposit would be as ordered by the tribunal.
Both the appeals are allowed in part. The amount in deposit be transmitted to the concerned tribunal.
Sd/-
JUDGE HJ