IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.7757 OF 2014 (MV-D) C/W MFA NO.213 OF 2015 (MV-D) IN MFA NO.7757/2014 BETWEEN:
THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION (KSRTC) CENTRAL OFFICE SHANTHINAGAR K.H.ROAD, BANGALORE-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER (BY SRI F.S.DABALI, ADVOCATE) AND:
1. SRI GURUCHANDRA @ RAJU S/O LATE K.LINGAIAH AGED ABOUT 59 YEARS 2. SMT. RAJAMMA W/O GURUCHANDRA @ RAJU AGED ABOUT 47 YEARS BOTH THE RESPONDENTS ARE R/AT NO.14/4 POLICE QUARTERS LAYOUT, ...APPELLANT 6TH BLOCK, RAJAJINAGAR BANGALORE-560 023 (BY SRI K.V.NAIK, ADVOCATE FOR …RESPONDENTS SRI N.UMASHANKAR, ADVOCATE FOR R1 & R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.08.2014 PASSED IN MVC NO.1156/2012 ON THE FILE OF IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, AWARDING COMPENSATION OF RS.7,22,550/- WITH INTEREST @ 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF PAYMENT.
IN MFA NO.213/2015 BETWEEN:
1. SRI GURUCHANDRA @ RAJU S/O LATE K LINGAIAH AGED ABOUT 60 YEARS 2. SMT. RAJAMMA W/O GURUCHANDRA @ RAJU AGED ABOUT 48 YEARS BOTH APPELLANTS ARE RESIDING AT NO.14/4 POLICE QUARTERS LAYOUT 6TH BLOCK, RAJAJINAGAR BANGALORE-560 010 (BY SRI K.V.NAIK, ADVOCATE FOR SRI N.UMASHANKAR, ADVOCATE) AND:
THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION (KSRTC) CENTRAL OFFICES SHANTHINAGAR, K.H.ROAD BANGALORE-560 027 (BY SRI F.S.DABALI, ADVOCATE) ...APPELLANTS …RESPONDENT THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.08.2014 PASSED IN MVC NO.1156/2012 ON THE FILE OF 9TH ADDITIONAL SMALL CAUSES JUDGE, 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
J U D G M E N T The Karnataka State Road Transport Corporation has preferred an appeal in MFA No.7757/2014 assailing the correctness of the judgment and award dated 22.08.2014 passed by the Court of IX Additional Small Causes and Additional Motor Accidents Claims Tribunal, Bangalore in MVC No.1156/2012 questioning the negligence fixed on the Corporation to an extent of 50% as well as the quantum determined by the Tribunal. The claimants have also preferred an appeal in MFA No.213/2015 assailing the correctness and legality of the judgment and award dated 22.08.2014 passed by the Tribunal in MVC No.1156/2012 insofar as quantum determined by the Tribunal as well as the negligence fixed on deceased Manjunath.
2. Facts leading to the top noted appeals are as under:
The appellants/claimants filed a claim petition contending that on 22.12.2011, at about 9.50 a.m., when deceased A.S.Manjunath was proceeding along with his wife Poornima and one Tanuja in a Car bearing registration No.KA-02/MC-4322 on B.M.Road within the jurisdiction of Hirisave police station, Hassan from Channapatna towards Hassan, at that juncture, the driver of the offending bus bearing registration No.KA-19-F-2929 came from the opposite direction at a very high speed and in a rash and negligent manner and dashed against their Car. In the said accident, on account of head on collision, the said Manjunath succumbed to the injuries on the spot. The claimants further averred in the claim petition that the said Manjunath was hale and healthy person and was the only son to the claimants. It is further averred in the claim petition that deceased Manjunath was working as Marketing Executive at Bombay Rayon Fashions, Bangalore and was drawing a salary of Rs.22,000/- per month. The claimants contended that they were totally depending on the deceased, and hence, they filed a claim petition claiming compensation of Rs.40,00,000/-.
3. The Karnataka State Road Transport Corporation, on receipt of the notice, contested the proceedings by filing written statement. The Corporation stoutly denied the entire averments made in the claim petition. The Corporation specifically averred in the claim petition that the driver of the offending bus was proceeding from Bangalore to Dharmasthala on the left side of the road by observing all traffic rules and regulations. It is the specific case of the Corporation that the accident occurred on account of the rash and negligent driving of deceased Manjunath, and as such, the driver of the offending bus was not at all responsible for the accident. The Corporation also contended that the petition is bad for non-joinder of necessary parties namely, the owner and Insurance Company of the Car bearing registration No.KA-02/MC- 4322.
4. Based on the rival contentions of the parties, the Tribunal formulated the following issues:
1. Whether the Petitioners prove that, the accident occurred due to rash and negligent driving of the KSRTC Bus bearing Registration.No.KA-19-F-2929 by its driver and Sri.A.S. Manjunath died due to the injuries sustained in the accident?
2. Whether the petition is bad for non-joinder of necessary parties i.e., owner and Insurance Company of the Car bearing Registration No.KA- 02-MC-4322?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What Order or Award?
5. The claimants, in support of their contentions, got examined PW.1, who is the father of deceased Manjunath and another witness as PW.3 and to corroborate the oral evidence, they have relied on the documentary evidence vide Exs.P1 to P11. The Corporation by way of rebuttal evidence has produced true copy of deposition of the driver of the bus recorded in MVC No.779/2012 and has also relied on xerox copy of photographs to demonstrate that the accident occurred on account of the rash and negligent driving of deceased Manjunath. The Tribunal, while examining issue No.1, has come to conclusion that the deceased was also responsible for the accident. The Tribunal was of the view that even though the driver of the offending bus was charge sheeted, it cannot be presumed that it is only the driver of the offending bus responsible for the accident. It is contended that the said finding of the Tribunal while examining issue no.1 is palpably erroneous and the same suffers from serious infirmities. The Tribunal, in the present case on hand, ought to have taken a holistic view while examining the records placed by the claimants in support of their contentions. It is not in dispute that the driver of the offending bus was charge sheeted for the offences punishable under Sections 279 & 304A of IPC. In that view of the matter, the contention of the counsel for the appellants/claimants is that the driver of offending bus was alone responsible for the accident, and as such, the Tribunal was not justified in holding that the driver of the offending bus has contributed to an extent of 50% and the same is not acceptable.
6. Heard learned counsel on both sides. Perused the judgments of the courts below and records.
7. A perusal of Ex.P5-Sketch would show that the driver of the offending bus while negotiating the curve in the road has virtually drifted to the right side of road and the point of impact is also beyond the notional median i.e. the offending bus has crossed the middle portion of the road and the impact of collision is beyond the middle portion of the road on the right side. In that view of the matter, it is not only the charge sheet which demonstrates the negligence of the driver of the offending bus, even the sketch as per Ex.P5 demonstrates that the driver of offending bus alone is negligent and responsible for the accident. It is quite evident from the sketch that the driver of the offending bus has virtually drifted towards right side while negotiating the curve and has virtually choked the road at curve without leaving any space for the deceased to proceed further, which has resulted in collision. The driver of the offending bus should have been extra cautious while negotiating the curve. Having noticed the curve ahead he should have foreseen his limitation in not able to notice the vehicles coming from opposite direction hence, he was expected to cut down the speed. Thus, exercise of extra care particularly in sharp curve is required to drive the vehicle at a speed less than that at which motor vehicles are normally driven on straight stretches. There is no explanation forthcoming from the Corporation as to why the driver of the offending bus was not able to maintain to his side while negotiating the curve road when he had enough space on the left side. This clearly demonstrates that the driver of the offending bus lost control while negotiating the blind curve, and hence, he was not able to maintain the bus on the left side of the road and on account of his negligent and reckless driving, the accident has occurred. This vital aspect is not at all examined by the Tribunal. The Tribunal has virtually misread the clinching evidence on record which clearly establishes that the accident has occurred on account of the rash and negligent driving of the driver of the offending bus and there is absolutely no fault of the driver of the Car i.e. the deceased Manjunath.
8. For the reasons stated supra, we are of the view that the finding recorded by the Tribunal while answering issue no.1 deserves to be interfered with, and accordingly, we hold that the aforesaid accident occurred solely on account of the rash and negligent driving of the driver of the offending bus.
9. Insofar as the compensation determined by the Tribunal is concerned, counsel for the appellants/claimants vehemently contended that the claimants have placed clinching evidence on record to demonstrate that the deceased was earning a sum of Rs.22,000/- per month as per Ex.P13-Pay slip.
10. Per contra, counsel for the Corporation would dispute the aforesaid document and would vehemently contend that the claimants except producing the salary slip have not examined the author of the document and therefore, the said document cannot be considered to assess the income of the deceased.
11. The witness examined by the claimants as PW.3 has failed to depose relating to the income of the deceased. The Tribunal has rightly discarded his evidence as not reliable. Having notionally taken the income of the deceased at Rs.10,000/- per month, the Tribunal ought to have taken into consideration his future prospects. Thus, the income assessed by the Tribunal needs reconsideration. Without disturbing the income determined by the Tribunal at Rs.10,000/- per month, if 40% is added towards future prospects, the income of the deceased would be Rs.14,000/- per month. After deducting 1/3rd towards personal expenses of the deceased and adopting the multiplier of 17, the compensation payable under the head of loss of dependency would come to Rs.9,333/- x 12 x 17= Rs.19,03,932/-. The claimants are entitled for a further sum of Rs.70,000/- under the other conventional heads. Hence, the total compensation determined by this Court comes to Rs.19,73,932/- as against the compensation awarded by the Tribunal at Rs.14,45,100/-.
12. The entire negligence is fixed on the driver of the offending bus and the entire compensation determined by this Court shall be paid by the Corporation along with interest @ 6% p.a. from the date of petition till realization.
13. In the result, the appeal in MFA No.213/2015 filed by the claimants is allowed in part. The appellants/claimants are entitled for a compensation of Rs.19,73,932/- along with interest @ 6% p.a. from the date of petition till realization. The Corporation shall satisfy the award since entire negligence is fixed on the driver of offending bus.
14. In view of our findings recorded in MFA No.213/2015, the appeal in MFA No.7757/2014 filed by the Corporation does not survive for consideration and the same is dismissed.
15. The amount lying in deposit with this Court, if any, shall be transferred to the concerned Tribunal to enable the claimants to withdraw the same.
Sd/-
JUDGE Sd/-
JUDGE hkh.