IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.4945 of 2018 (MV) BETWEEN :
THE MANAGING DIRECTOR K.S.R.T.C., SHANTHINAGAR BENGALURU – 560 027.
NOW THROUGH CHIEF LAW OFFICER KSRTC, BANGALORE. ... APPELLANT (BY SRI.K.NAGARAJA, ADVOCATE) AND:
1. SMT.PEMA CHONZOM W/O.LATE SURAJ CHETRI AGED ABOUT 25 YEARS R/AT NO.41, TAWANG CIRCLE TAWANG, ARUNACHAL PRADESH – 790 001.
2. GANGA CHETRI W/O.LATE GOVINDA CHETRI AGED ABOUT 47 YEARS 3. RAJU CHETRI S/O.GOVINDA CHETRI AGED ABOUT 17 YEARS MINOR REPRESENTED BY HIS MOTHER NO.2 ABOVE AS NATURAL GUARDIAN NO.2 & 3 ABOVE ARE R/AT NAFRA WEST KAMENG NAFRA, H.A.NAFRA, NAFRA CIRCLE ARUNACHAL PRADESH – 790 001.
(BY SRI.N.GOPALAKRISHNA, ADVOCATE FOR SRI.A.SREENIVASAIAH FOR C/R-1 TO R-3) ...RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 05.03.2018 PASSED IN MVC NO.4956/2016 ON THE FILE OF THE XXI ACMM, 23RD ADDITIONAL SMALL CAUSE JUDGE, MACT, BENGALURU, (SCCH-25), AWARDING COMPENSATION OF RS.26,76,300/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the Karnataka State Road Transport Corporation (hereinafter referred to as “KSRTC” for the sake of convenience), assailing the judgment and award of the Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru (hereinafter referred to as “the Tribunal” for the sake of convenience) passed on 05.03.2018, being aggrieved by the compensation awarded by the Tribunal.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. It is the case of the claimants before the Tribunal that on the fateful day i.e., on 24.6.2016 at about 2.30 p.m. when the deceased – Suraj Chetri was proceeding on Pulsar Motor Cycle bearing registration No.KA-51-EH 4958 from Hosur main road to Silk Board, and when he reached Roopena Agrahara, near Eicher Show Room, Hosur main road - service road, Bangalore, a KSRTC bus bearing Registration No.KA-42-F- 177 driven by its driver in high speed and in a rash and negligent manner, hit the motor cycle of Suraj Chetri, as a result of which, he sustained grievous injuries and succumbed to the injuries on the way to the hospital. They also averred that the deceased was aged about 24 years and was hale and healthy and was working as a ‘Trainee captain in F & B services’ at Hotel Sai Vishram, Three station, Hebbagodi Bangalore. It is also stated that the deceased was earning a sum of Rs.20,000/- per month apart from getting tips of Rs.1,000/- to Rs.1,500/- per day from customers and the deceased was contributing the entire salary for the maintenance of his family. Due to the untimely death of the deceased, the family has lost the bread earner and were in penury and agony. Accordingly, they prayed for compensation by filing the claim petition under Section 166 of the Motor Vehicles Act, 1988.
5. In response to the notice issued by the Tribunal, respondent/Corporation appeared and filed its written statement and denied the petition averments. It is stated by the Corporation that the claim petition is not maintainable either in law or on facts. It also stated that the driver of the offending vehicle was driving the vehicle slowly and cautiously on the left side of the road by following and observing the traffic rules and regulations and that the deceased violated the rules and regulations, came in a rash and negligent manner and suddenly took a right turn, as a result of which he lost control and fell into the drain and sustained injuries. The driver of the offending vehicle on observing the same, on humanitarian grounds, shifted the deceased to the hospital and the bus never came in contact with his motor cycle or with the deceased. As such, respondent prayed for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration :
1. Whether the petitioners prove that, they are the legal heirs of the deceased Suraj Chetri ?
2. Whether the petitioners prove that, Suraj Chetri was died on account of RTA took place near Rupena Agrahara, in front of Eicher Show Room, Hosur Main Road, Service Road, Bengaluru, due to rash and negligent driving of the driver of KSRTC bus bearing Reg.No. KA-42-F-177 dated 24.06.2016 at about 2.30 p.m. ?
3. Whether the petitioners are entitled for compensation ? If so, how much and from whom?
4. What Order or Award ?
7. In order to substantiate their case, claimant No.
1 - wife of the deceased got herself examined as P.W.1 and produced 18 documents which were marked as exhibits P.1 to P.18. They also examined one more eye witness by name Nagalinga M. as P.W.2 and produced 3 documents which were marked as exhibits P.19 to P.21. On the other hand, the respondent/Corporation examined the driver - Veerendrakumar as R.W. 1 but they did not produce any documents.
8. On considering the evidence on record, the Tribunal answered Issue Nos. 1 and 2 in the affirmative, Issue No.3 partly in the affirmative and awarded compensation of Rs.26,76,300/- with interest at the rate of 8% per annum, from the date of claim petition till the date of deposit of the award.
9. Being aggrieved by the judgment and award, the respondent - Corporation has filed the above appeal.
10. We have heard Sri.K.Nagaraja, learned counsel for the appellant – Corporation and Sri.N.Gopalakrishna for the respondents – claimants. We have perused the material on record as well as the original records.
11. Learned counsel for the appellant submitted that the award passed by the Tribunal is unsustainable in law and hence the same is liable to be set aside, as it is opposed to facts, probabilities and circumstances of the case. It is contended that the Corporation filed detailed objections before the Tribunal denying the negligence on the part of the driver of the bus, and the evidence and documents clearly showed that the deceased came under the left rear wheel of the bus.
12. It is also contended that the IMV report reveals that the right side mud guard of the motor cycle was damaged and the Tribunal has failed to consider the said factual aspect of the matter and that the deceased came under the left side rear wheel of the bus, which itself goes to show that the deceased was moving on the wrong side. It is further contended that the award of compensation on all heads and the rate of interest awarded is on the higher side and thus, prayed for setting aside the judgment and award of the Tribunal and dismissing the claim petition.
13. Per contra, learned counsel for the respondents justified the judgment and award passed by the Tribunal and contended that the appellant has not made out any good ground to interfere with the award of the tribunal and prayed for dismissal of the appeal.
14. Having heard the respective counsel for the parties, the following points would arise for our consideration.
(i) Whether the appellant/Corporation has established that there was total negligence on the part of the deceased in causing the accident and that the driver of the appellant/ Corporation was in no way negligent in causing the accident?
(ii) Whether the claimants are entitled to compensation?
(iii) What order?
Point No.1:
15. In order to substantiate actionable negligence by the driver of the KSRTC bus, the claimants have examined claimant No.1-wife of the deceased as PW-1 and have produced as many as twenty-one documents and put forth the contention that the accident occurred due to the rash and negligent driving of the offending vehicle.
16. PW-1—the wife of deceased Suraj Chetri, who is claimant No.1, in her examination-in-chief has re-iterated what has been stated in the claim statement. It is stated by her that the accident had occurred on account of the sole negligence on the part of the driver of the offending vehicle. That the deceased was aged only 24 years and was hale and healthy prior to the accident.
17. Ex.P-1 is the First Information Report registered in FIR No.124/2016 by Madivala Traffic Police under Sections 304A and 279 of Indian Penal Code on the complaint by Tenzi Thardoe (friend of the deceased) against Veerendra Kumar—driver of KSRTC bus bearing registration No.KA- 42/F-177 alleging that while plying the bus from Silk Board towards Hosur on the service Road of Roopena Agrahara, in front of Eicher Show Room on Hosur Main Road, on 24.06.2016 at about 02.30 p.m., he drove the same in high speed and rash and negligent manner and dashed to the oncoming motor-cycle bearing registration No.KA-51/EH- 4958 driven by Suraj Chetri and as a result, Suraj sustained grievous injuries on his head and stomach and died on the way to St.John’s Hospital. That the head light and right side of motor-cycle was damaged.
18. Ex.P-2 is the Spot Panchanama of place of accident drawn at 05.30 p.m. on 24.06.2016 by Madivala Traffic Police. It is stated in the report that, at the spot of the accident, the width of the service road is 30 feet; the road is asphalted, straight and even; the road has a divider and allows two-way traffic viz., north-south and south-north; there was no hindrance for the movement of vehicles. On 24.06.2016, at about 02.30 p.m., the driver of KSRTC bus was plying the bus from north to south i.e., from Silk Board towards Hosur in high speed and negligently so as to endanger human life and hit the oncoming motor-cycle bearing No.KA-51/EH-4958 driven by Suraj, which caused severe injuries to his head and stomach, as a result, Suraj died on the way to hospital.
19. Ex.P-3 is the inquest report conducted on the person of the deceased. Ex.P-4 is the charge-sheet submitted on 15.09.2016. Ex.P-5 is the Motor Vehicles Inspection Report, wherein it is mentioned that there is no damage to the KSRTC bus whereas right side of the motor- cycle is damaged and there is scratch marks on head light and the Senior Inspector of Motor Vehicles has opined that there was no mechanical defect in both the motor vehicles.
20. In Ex.P-6; the Post-Mortem Report, it is stated that the death was on account of ‘shock and hemorrhage’ due to pelvic injury sustained. Ex.P-12 is the original Driving Licence of deceased valid from 14.12.1992 to 16.10.2033 (NT) in respect of ‘motor-cycle with gear’, which is produced to show that the deceased was duly licenced to drive the motor-cycle involved in the accident.
21. The driver of the KSRTC bus was examined as RW-1 who has stated that deceased himself was negligent in causing the accident and there was no role of KSRTC bus, as deceased himself suddenly took right turn and lost control over the motor cycle and fell into the open drainage. However, in the cross-examination, he has pleaded ignorance about non-mentioning of drainage at the spot of accident in the police records. Apart from examining the driver of the KSRTC bus, the respondents have not adduced any evidence.
22. On appreciation of entire oral and documentary evidence, it is found that the respondents have not made any attempt to disprove the case of the claimants, though the respondent/Corporation stated that the deceased has violated the traffic rules and drove the vehicle in a rash and negligent manner and suddenly took a right turn and as a result he lost control and fell into the drain and sustained injuries. Therefore, they sought to establish that the deceased himself was responsible for the accident. But the tribunal has taken into consideration the relevant material evidence on record and held that the respondent/Corporation has failed to substantiate and prove their defence. The respondent neither examined any eye witness who had witnessed the accident nor produced any documents in support of their evidence. On the contrary, the Tribunal has taken into consideration the material evidence on record and has rightly held that the claimants have successfully established that the accident occurred due to the rash and negligent driving of the KSRTC bus. The Tribunal is justified in holding that the respondent/Corporation has failed to obtain any contrary admission from PW-1.
23. Therefore, we hold that the appellant / Corporation has failed to establish that there was total negligence on the part of the deceased in causing the accident and that the driver of the Corporation was in no way negligent in causing the accident. The counsel for the appellant has not made out any good ground to interfere with the finding of the Tribunal. Therefore, the same is not interfered with by this Court. Point No.1 is answered against the appellant/Corporation.
Point No.2:
24. This takes us to Point No.2, which is with regard to the quantum of compensation awarded by the Tribunal.
25. PW-1 has stated that deceased is left behind by his wife, mother-in-law and brother-in-law, who are claimant Nos.1 to 3 respectively. The deceased was working as Trainee Captain in F&B Services in Hotel Sai Vishram, Hebbagodi on a monthly salary of Rs.20,000/- besides getting TIPS from the customers up to Rs.1,000/- to Rs.1,500/- per day. That they have lost the sole bread winner of the family and are now in great penury. That they have spent Rs.1,00,000/- towards transportation and funeral expenses. Through her, 18 documents were got marked as Exs.P-1 to 18.
26. PW-2 is the H.R. Manager of Sai Vishram Hotel in which the deceased was working. He has spoken about employment of deceased in their hotel, salary and perquisites the deceased was getting prior to his death. It is stated by him that deceased was employed on monthly salary of Rs.14,000/- and earning TIPS from the customers up to Rs.1,000/- to Rs.1,500/- per day. He had produced Employee ID Card, Appointment letter, extract of Attendance Register in respect of deceased. He has produced three documents which were marked as Exs.P-19 to 21.
27. Exs.P-8 to 10 are the pay slips of deceased Suraj for the months from March-2016 to May-2016, according to which, the total earnings is Rs.14,000/- including HRA, CA and other Allowances, and after deductions, the net take home salary is Rs.12,927/-.
28. Ex.P-11 is the Savings Account Bank Statement of Suraj Chetri maintained at HDFC Bank, Jigani Branch, for the period from 01.01.2016 to 30.06.2016, depicting periodical credit of salary of Rs.12,927/- from January 2016 to June 2016. Ex.P-16 is the PAN Card of the deceased, Ex.P-18 is the identity card, Ex.P-21 is the extract of Attendance Register for six months from January 2016 to June 2016.
29. On appreciation of the oral and documentary evidence on record in right perspective, the Tribunal has assessed the income of the deceased at Rs.12,927/- per month. By adding 40% towards future prospects and deducting 1/3rd towards personal and living expenses, arrived at loss of dependency at Rs.26,06,256/- (Rs.12,066/- x 12 x ‘18’).
30. Further, a sum of Rs.15,000/- towards funeral and transportation expenses; Rs.15,000/- towards loss of estate and Rs.40,000/- towards loss of consortium to claimant No.1 is awarded by the Tribunal which, in our view, is just and proper. Hence, the quantum of compensation awarded by the Tribunal at Rs.26,76,300/- is affirmed.
31. However, as contended by learned counsel for the appellant, interest on the said compensation shall be at the rate of 6% per annum instead of 8% per annum as awarded by the Tribunal from the date of claim petition till realisation.
The Corporation to deposit the entire compensation with upto date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
The appeal filed by the Corporation is allowed in part only on the aspect of rate of interest. The rest of the judgment and award of the Tribunal is confirmed.
Parties to bear their respective costs.
The amount in deposit before this Court to be transmitted to the concerned Tribunal.
Office to transmit the LCR to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE Mgn/-