IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM M.F.A.NO.6501/2016(MV-D) BETWEEN THE MANAGING DIRECTOR K.S.R.T.C. DEPOT, BENGALURU CENTRAL OFFICE, K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027, (R.C. OWNER OF K.S.R.T.C.
BUS BEARING REG. NO. KA-40-F-452) REPRESENTED BY IT’S CHIEF LAW OFFICER. ...APPELLANT (BY SRI F.S.DABALI, ADVOCATE) AND 1. S. CHANDRAKALA W/O LATE JAGANNATH, AGED ABOUT 26 YEARS, 2. B. NARAYANAPPA S/O. BOOTHAIAH, AGED ABOUT 71 YEARS, 3. ASWATHAMMA W/O. NARAYANAPPA, AGED ABOUT 61 YEARS, ALL ARE RESIDING AT GUNDAGALLU VILLAGE MADHUGIRI TALUK TUMKUR DISTRICT-572 132. …RESPONDENTS (BY SMT.B.V.VENKATALAKSHAMMA, FOR SRI H V MANJUNATHA, ADVOCATES FOR R1-R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2016 PASSED IN MVC NO.1738/2015 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE AND MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.30,35,000/- WITH INTEREST @ 9@ P.A FROM THE DATE OF PETITION TILL ITS REALISATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The contesting respondent in MVC No.1738/2015 on the file of the MACT, Bengaluru, has come up in this appeal impugning the judgment and award dated 28.05.2016 on two counts. Firstly, that the compensation awarded by the Tribunal is on the higher side and secondly, that the liability saddled on the appellant herein to pay compensation is erroneous in as much as the accident being caused due to rash and negligent driving of the rider of motorcycle who died in the aforesaid accident.
The Court below should not have awarded compensation to the legal representatives of the deceased who are claimants before the Tribunal and consequently should have been dismissed.
2. Though this appeal is at the stage of considering the application in I.A.No.1/18 filed by the respondents- claimants seeking release of the amount in deposit, the same is taken up for final disposal at the request of the learned counsel for the appellant as well as the respondents-claimants.
3. The brief facts leading to this case are that the claim petition in MVC No.1738/2015 was filed by the respondents herein (widow and parents) seeking compensation for the death of Jagannath in a road traffic accident, which is said to have taken place on 04.11.2014 at about 6.30 a.m. Admittedly, the said accident is involving the rider of the motor cycle bearing Reg. No.KA- 43-Q-2798 and the KSRTC bus bearing reg. No.KA-40-F-
452. The accident took place within the outer limits of Gidaganahalli, near Shanimahatma temple, Gowribidanur Taluk of Chikkaballapura.
4. The accident is not disputed so also the death of the rider of the motorcycle in the aforesaid accident. The police records produced before the Tribunal which are marked as Exs.P1 to P4 namely FIR, complaint, sketch of accident spot and MV Report respectively.
5. On going through the aforesaid documents, they would indicate that the accident has taken place when the KSRTC bus was proceeding from Manchenahalli towards Gowribidanur from East to West side of the road whereas the sketch vide Ex.P3 clearly indicates that at the relevant point of time the rider of the motorcycle was proceeding from Gowribidanur towards Chikkaballapur via Manchenahalli and the place of accident is on the western side of the road thereby indicating that the rider of the motorcycle had crossed the median and had come to the extreme right side of the road while the KSRTC bus was proceeding towards Gowribidanur in a opposite direction. When the sketch-Ex.P3 is looked into, it clearly shows that the accident has taken place due to the mistake on the part of the rider of the motorcycle. However, the complaint-Ex.P1 filed before the police by the family members of the deceased is taken on record and the FIR is also registered as if the accident is caused by the driver of the bus and the same is supported by the panchanama of the place of accident; with reference to Ex.P3-sketch of the accident spot is looked into with that of the contents of the complaint and as well as the FIR are contrary. It clearly discloses that the accident is also due to rash and negligent driving of the rider of the motorcycle. In the proceedings before the Tribunal it is seen that immediately after the accident the rider of the motorcycle who was alive at the time of the accident was taken to Gowribidanur Government Hospital where after first aid treatment was provided to him. Thereafter, he was shifted to Apurva Mother and Child Hospital, Yelhanka, Bengaluru, where he was inpatient for a period of three months and thereafter he succumbed to the injuries.
There is voluminous record to demonstrate that the medical treatment provided to the rider of the motor cycle before he succumbed to the injuries suffered in the road traffic accident after three months after the date of accident. It is seen that after the death of the rider of the motor cycle-Jagannath, a claim petition was filed by the widow and parents of the deceased seeking compensation for his death in the aforesaid road traffic accident.
6. In the proceedings before the Tribunal the claimants have adduced evidence through the 1st claimant, who is none other than the wife of the deceased Jagannath as PW1 and one Smt.Rajeshwari, Medical Record Keeper, who produced the records from Apurva Hospital where the injured was treated, was examined as PW2 in support her declaration marked in all 18 documents. Out of that, Ex.P11-medical bills are in 343 Nos., Ex.P12 prescriptions are in 327 Nos. and Ex.P13 X- ray films, which are 07 in number. Though the claimants have claimed before the Tribunal that the deceased was working as a Cashier in a wine store, Doddaballapura, earning monthly income of Rs.16,000/-, they were not able to produce any documents to prove his income or avocation. In this background, the Tribunal after taking the age of the deceased at 38 years and the cost of living as on the date of accident, assessed the notional income of the deceased at Rs.9,000/- p.m. and by adding another 50% towards ‘future prospects’, the Tribunal has proceeded to award compensation under the head ‘loss of dependency’ to the tune of Rs.16,20,000/- and Rs.11,45,000/- towards ‘medical expenses’ and compensation towards ‘loss of consortium’ ‘love and affection’ ‘loss of estate’ and ‘transportation of dead body and funeral expenses’ amounting to Rs.3,00,000/-. In all, the Tribunal has awarded Rs.30,35,000/- to the claimants.
7. In the said proceedings, the respondent- Corporation has taken a specific contention that the accident is not caused due to rash and negligent driving of the driver of the KSRTC bus, but the accident was caused due to rash and negligent driving of the rider of the motor cycle. To substantiate the same, one G.S.Narayana Swamy was examined as RW1 and in support thereof he has produced two documents vide Exs.R1 and R2. These two documents and evidence of RW1 is however not considered by the Tribunal and the claim petition filed by the legal representatives of the deceased was allowed as stated supra. The impugned judgment and award passed by the Tribunal in MVC No.1738/2015 is the subject mater of challenge in this appeal.
8. As stated supra, the respondent-Corporation has filed this appeal on two counts. Firstly, that the compensation awarded by the Tribunal is on the higher side and secondly, the claimants are not entitled to compensation on the ground that the deceased himself was a tortfeasor and as such, liability to pay compensation should not have been saddled on the KSRTC bus as involved in the accident.
9. In this proceedings, the entire records were secured from the Tribunal and we have gone through the same before considering the appeal, wherein the document at Ex.P3-Sketch of accident spot would clearly indicate that the rider of the motorcycle was proceeding from Gowribidanur towards Chikkaballapur via Manchenahalli i.e., he was taking path from western side to eastern side and the place of accident is on the western side of the road thereby indicating that the rider of the motorcycle had crossed the median and had come to the extreme right side of the road and has gone under the wheels of the KSRTC bus which was proceeding towards Gowribidanur in a opposite direction. With reference to Ex.P2-Mahazar, accident spot, which clearly discloses that the Tribunal has completely ignored these two documents as if they do not exist on record. The voluminous records, which are available at Ex.P11- series of medical bills running to 344 Nos. and Ex.P12 series of prescriptions running to 327 Nos. The medical bills would indicate that the rider of the motorcycle before succumbing to the injuries suffered in the accident has undergone trauma for a period of three months is not considered by the Tribunal while awarding compensation payable to his legal representatives. However, while deciding the liability to pay compensation, the Court below has not even looked into the said records to decide whether there is any contributory negligence on the part of the rider of the motorcycle in causing the accident. In fact, a cursory glance at Ex.P3 would clearly indicate that the entire mistake in causing the accident appears to be on the rider of the motorcycle. However, considering the fact that the accident has taken place during the first week of November, 2014, which is the onset of cold season, the rider of the motorcycle who was proceeding at 6.30 a.m., might have committed an error in getting himself to the left side of the road and probably he must have come to the right side of the road inadvertently. It is also accepted that in the road traffic accident another vehicle i.e., KSRTC bus which was coming opposite side also require certain amount of caution while driving the same. If that is considered, this Court feels that there is some negligence on the part of the driver of the KSRTC bus also in not taking the bus to the extreme left side of the road or any other manner in avoiding accident resulting the rider of the motorcycle to grievous injuries. In that view of the matter, this Court would feel that the negligence in causing the accident will have to be considered both on the rider of the motorcycle and so also the driver of the bus. If that is to be done, this Court would consider the contributory negligence on the part of the driver of the bus to an extent of 40% and 60% on the part of the rider of the motorcycle.
10. Now, coming to the quantum of compensation that is considered by the Tribunal. This Court is of the opinion that when the claimants before the Tribunal were not able to establish the avocation and income of the deceased what is to be done by the Tribunal is to follow the chart prepared by the Legal Services Authority with reference to notional income to be taken in respect of the person whose avocation and income is not established to the satisfaction of the Court. If that is taken into consideration in the instant case, the accident having taken place in the year 2014; the notional income for 2014 is at Rs.8,500/- p.m. to which 40% is required to be considered towards ‘future prospects’. Considering the age of the deceased being 38 years and when he was gainfully employed permanently in any organization, in that background, the notional income with future prospects would come to Rs. 11,900/- (8500 x 40% = 3400 + 8500). Out of Rs.11,900/-, 1/3rd of the amount is required to be considered as personal expenses of the deceased and the amount which is available for maintenance of the family would be 2/3rd which comes to Rs.7,934/- p.m. (1/3 of 11900-3966). In other words, it comes to Rs.95,208/- p.a. (7934 x 12). Since the deceased was aged 38 years at the relevant point of time of accident, the proper multiplier on the case on hand would be ‘15’. With that, the total ‘loss of dependency’ comes to Rs.14,28,120/- (7934 x 12 x 15) as against Rs.16,20,000/- awarded by the Tribunal.
11. Now, the compensation which is awarded by the Tribunal in a larger head is medical expenses. When the same is looked into a serious error is committed by the Tribunal while calculating the compensation payable under the head medical expenses. As could be seen from para-12 of the appeal memo, the appellant has relied on Ex.P11 series-medical bills. Out of 344 bills, Sl.Nos.17, 20, 24, 30, 31, 43, 44, 45, 46 to 52, 54, 56, 59, 61, 62, 63, 65, 66 and 206 are the bills where the advance amount is paid by the claimants. The medical register would indicate the treatment taken in R.L.Jalappa Hospital, Kolar, which works out to Rs.1,23,000/-. It is needless to state that the aforesaid amount included in the final bill is in duplication of amount, which is required to be corrected. Similarly, in para-13 of the appeal memo also certain bills which are raised by the Hospital whenever medicines are administered to the patient, bills are raised and the amount is collected by the hospital by the claimants which is at Ex.P11 series at Sl.Nos.15, 18, 21 to 23, 25 to 29, 32 to 42, 53, 55 to 58, 60, 64, 67, 68, 69, 72, 74, 89, 96, 97, 102, 112, 120 to 122, 146, 157, 168, 196, 200 to 205, 207 to 214, 216 to 230; while raising the final bill, what has happened is that the Tribunal has taken the value of each of the bills as against the cash bills raised in the final stage at Rs.28,787/-, which is also duplication of adding bill amount to cash bill, which is also to be corrected and another bill which is seen at Sl.No.287 of Ex.P11 there is reference to Rs.58,759/- paid by cash. However, there is no receipt for that and the document on which the said amount written is looked into is just a Haematology Report with reference to laboratory test. To presume that, Rs.58,759/- paid for that is unsustainable and no bill is made available to the said entry. Therefore, it is a fake entry. Therefore, from out of Rs.11,45,000/-, Rs.1,23,000/-, which is the advance amount paid against receipts of R.L.Jalappa Hospital, Kolar, is required to be deducted. So also bills raised for medicines provided by the Hospital at Sl.No.15 onwards are required to be adjusted, which amounts to Rs.28,787/- also to be deducted along with another payment of Rs.58,579/-. After these three items are deducted from the total medical expenses of Rs.11,45,000/- awarded by the Tribunal, then the actual expenses which the claimants are entitled to receive under the head ‘medical expenses’ is Rs.9,34,634/- (2,10,366 – 11,45,000). If the said amount is included to the compensation, which is already reassessed towards ‘loss of dependency’ and as well as the compensation payable under the ‘conventional heads’ is e-assessed at Rs.14,98,120/- (70,000 + 14,28,120), the total compensation payable to the claimants would be Rs.24,32,574/-. Out of this, the liability of the respondent-KSRTC is 40%. In other words, Rs.9,73,101.60 ps., which is rounded off to Rs.9,73,102/- payable with interest @ 6% p.a. from the date of petition till realization of the entire amount.
12. In the instant case, it is seen that the respondent-KSRTC has already deposited a sum of Rs.17,28,704/-. Out of which Rs.10,00,000/- is already released and balance amount of Rs.7,28,704/- is available in deposit in this Court. Out of that balance compensation, which is required to be paid to the claimants should be deducted and excess amount which is available is ordered to be refunded to the respondent- KSRTC.
13. Interest which is awarded by the Tribunal at the rate of 9% p.a. is fixed to 6% pa. from the date of petition till realization. Accordingly, the appeal filed by the respondent-KSRTC in MVC No.1738/2015 is allowed in part.
14. Since the compensation amount is revised, excess amount, which is already received shall be recovered in the same proposition as assessed by the Tribunal in the ratio of 60:20:20.
Sd/- JUDGE Sd/- JUDGE TL