IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.6345/2016(MVC-D) BETWEEN:
1. KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BANGALORE – 560027.
REP. BY ITS MANAGING DIRECTOR.
2. DEPO MANAGER TRAFFIC, KARNATAKA STATE ROAD, TRANSPORT CORPORATION, KOLAR DIVISION, KOLAR.
NOW THROUGH CHIEF LAW OFFICER, KSRTC, BANGALORE.
...APPELLANTS (BY SRI.NAGARAJA.K, ADVOCATE) AND:
1. SMT. ASHWINI.K.R, W/O LATE S.BASAVARAJ, AGED ABOUT 27 YEARS 2. MASTER. PURAVIK, S/O LATE S.BASAVARAJ, AGED ABOUT 3 YEARS, SINCE MINOR REP.BY NATURAL GUARDIAN/MOTHER RESPONDENT NO.1 ABOVE.
BOTH ARE R/AT NO.326, 75TH CROSS, KUMARASWAMY LAYOUT, 1ST STAGE, BANGALORE-560078.
ALSO AT KADARANAHALLI, TUMKUR DISTRICT-572101.
3. SMT. SHIVAMMA, W/O LATE SHIVANNA, AGED ABOUT 56 YEARS, R/AT NO.272/1, BYATARAYANAPURA, BEHIND SREERAMA HOTEL, BANGALORE – 560092.
4. SRI.S.VIJAYAKUMAR, S/O NOT KNOWN, AGED MAJOR, BADGE NO.8946, SRINIVASAPURA DEPOT, KOLAR DIVISION, KOLAR-563101 (DRIVER OF KSRTC BUS NO.KA-07-F-1462) ...RESPONDENTS (BY SMT.CHAMPOO KAVYA.S, ADVOCATE FOR DR.M.SUNIL SASTRY, ADVOCATE FOR R1 & R3;
R2 IS MINOR REP BY R1;
V/O DTD 29.9.2016 NOTICE TO R4 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.04.2016 PASSED IN MVC NO.2077/2014 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, & XIX ACMM, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.41,67,900/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.
THIS MFA COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The first and second respondents-KSRTC in MVC.No.2077/2014 on the file of the MACT, Bengaluru, have come up in this appeal challenging the judgment and award passed therein insofar as it pertains to quantum of compensation as well as saddling 100% negligence on the part of the driver of the bus belonging to the appellants which is involved in the accident.
2. The brief facts leading to this appeal are as under:-
On 19.10.2013 at about 6.45 a.m., the motor cycle bearing Regn.No.KA 07 U 8488 met with an accident involving the KSRTC bus bearing Regn.No.KA-07-F- 1462. The said accident took place near Maliyappanahalli-Kyalanur Cross Gate, Vemagal Hobli, Kolar Taluk, Kolar. Admittedly, the rider of the motor cycle was the husband of the first claimant and father of second claimant and son of third claimant, who succumbed to the injuries at the spot.
3. Thereafter, the claim petition was filed by his widow, minor son and mother seeking compensation from KSRTC to whom the said bus belonged. In the proceedings before the Tribunal, it was contended that the deceased was an employee in Volvo bus company drawing monthly salary of Rs.24,147/-. After deduction of tax and other deductions, his net pay was said to be Rs.19,524/-. It was also contended that the deceased was aged about 27 years with a permanent job and steady income. Due to his untimely death, the family lost the sole bread winner and therefore sought for compensation in a sum of Rs.1,25,00,000/-.
4. In the said proceedings, the respondent- KSRTC after entering appearance contested the claim petition by filing detailed written statement wherein the avocation, income of the deceased was denied. Though the defence was raised that the accident is not caused due to rash and negligent driving on the part of the driver of the KSRTC bus no specific stand was taken with reference to the contributory negligence on the part of the rider of the motor cycle. In the trial which was conducted the claimants, evidence was adduced through the first petitioner as P.W.1 and in support of their claim produced in all 13 documents to substantiate the petition averments as against that the respondents adduced evidence of its driver who was respondent No.3 in the said proceedings. However, no documents were produced in support of the defence that was raised.
5. On appreciation of the material available on record, the Tribunal proceeded to allow the claim petition awarding compensation in a sum of Rs.41,67,900/- with interest at 6% from the date of petition till the date of deposit. Being aggrieved by the same, respondents 1 and 2 have come up in this appeal firstly on the ground that the quantum of compensation awarded is on higher side and secondly that the Tribunal has not considered contributory negligence on the part of the rider of motor cycle in causing the accident, which has resulted in his death.
6. In support of the grounds urged, photographs are sought to be produced by filing an application in I.A.No.2/2016. The said application is allowed and the documents produced therein are taken on record. When the entire material available on record along with the said photographs are looked into it is clearly seen that the grounds which are urged were not the defence in the written statement which was filed by the appellants herein. Further, the documents which are produced in Exs.P10 to P12 which are spot mahazar, sketch of the place of accident as well as IMV Report would substantiate the manner in which the accident has occurred to be just and proper and it is also confirmed by the four photographs which are produced by the appellant along with the application in I.A.No.2/2016. With this the finding of the Tribunal that the accident between the motor cycle and the bus is a head on collision is clearly established.
7. In this view of the matter, this Court is of the considered opinion that in the absence of any defence at the first place and subsequently any evidence to substantiate the grounds urged in the present appeal to state that there was a contributory negligence on the part of the rider of the motor cycle as being established, the said ground cannot be considered. Further, it is noticed that the driver of the bus who is respondent No.3 in the proceedings before the Tribunal, who is examined as R.W.1, though speaks about the contributory negligence, he does not dispute the sketch which is prepared by the police which is at Ex.P11, which would clearly indicate that in 20 ft. wide road, the bus had actually occupied nearly 12 ft. of the road leaving only 8 ft. was left as seen from the sketch which is not denied by him. Further, there is no averment that the accident is not a head on collision as it was tried to be established before the Court below. Hence, in this appeal the said ground regarding contributory negligence cannot be considered for the first time.
8. Now coming to the compensation, it is observed that the Court below by taking the net income of the deceased at Rs.19,524/- as against the gross income of Rs.24,147/- as seen at Ex.P8 has rightly considered the compensation payable to the claimants. While doing so, the future prospects taken at 50% of the income of the deceased also appears to be just and proper in the light of the fact that the deceased was having a steady job with the Volvo Bus Company and assured gross income of nearly Rs.25,000/- with take home salary of Rs.19,524/-. In the fact situation, if the take home salary is taken into consideration, this Court cannot find fault with the judgment of the Court below sofar as quantum of compensation awarded towards loss of dependency.
9. However, when it comes to the compensation which is awarded under the head of loss of love and affection to the petitioners 1 to 3 and also towards transportation of dead body is concerned, the same is on higher side which requires to be reduced to Rs.70,000/- as against Rs.1,85,000/- which is awarded.
10. In the result, the appeal filed by the respondent-KSRTC is allowed partly in modifying the quantum of compensation payable at Rs.40,52,900/- as against Rs.41,67,900/- awarded by the Tribunal. The claimants are entitled to receive the modified compensation with interest at 6% per annum from the date of petition till the date of deposit.
The amount in deposit is ordered to be transmitted to the Tribunal for disbursement to the claimants.
Sd/- JUDGE Sd/- JUDGE *alb/-