IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2386/2014 C/W M.F.A.Nos.9706/2013 AND 2045/2014 [MV] M.F.A.No.2386/2014 BETWEEN:
1. KRISHNAMURTHY S/O SHANKARA NAIDU AGED ABOUT 48 YEARS 2. UMA MAHESHWARI W/O KRISHNAMURTHY AGED ABOUT 40 YEARS BOTH R/AT:-NO.8 11TH CROSS ROAD 12TH MAIN ROAD NEAR RAGHAVENDRA MATTA KALIDASA CIRCLE, SRINAGAR BANGALORE-560050.
...APPELLANTS (BY SRI. P SURESH, ADV.) AND:
1. THE MANAGING DIRECTOR KSRTC DIVISION CENTRAL OFFICE K.H.ROAD, SHANTHINAGAR BANGALORE-560027.
2. THE NEW INDIA ASSURANCE CO.LTD., CDU-VI, RESIDENCY ROAD CROSS (671400), NO.45/7, GROUND FLOOR VINAYAKA COMPLEX RESIDENCY ROAD CROSS BANGALORE-560025 (REPT.BY ITS INCHARGE MANAGER).
3. K.VANARAJU S/O KEMPAIAH R/AT:-NO.1040, 13TH MAIN ROAD SRINAGAR, BANGALORE-560050.
…RESPONDENTS (BY SRI.K NAGARAJA, ADV. FOR R1 SRI. K.S. LAKSHMINARASAPPA, ADV. FOR SRI B C SEETHARAMA RAO, ADV. FOR R2 R3- SERVED & UNREPRESENTED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2013 PASSED IN MVC NO.5023/2012 ON THE FILE OF THE XIII ADDL.SMALL CAUSE JUDGE & MEMBER, MACT, BANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.9706/2013 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE MAHALAKSHMI CHAMBERS M G ROAD BANGALORE-560001 REP BY ITS MANAGER SRI V RAMACHANDRAN.
...APPELLANT (BY SRI. K.S. LAKSHMINARASAPPA, ADV. FOR SRI B C SEETHARAMA RAO, ADV.) AND:
1. SRI KRISHNA MURTHY AGED ABOUT 49 YEARS S/O SHANKARA NAIDU 2. SMT. UMA MAHESHWARI AGED ABOUT 41 YEARS W/O KRISHNA MURTHY BOTH ARE RESIDING AT NO.8 11TH CROSS ROAD, 12TH MAIN NEAR RAGHAVENDRA MATTA KALIDASA CIRCLE SRINAGARA BANGALORE-560050.
3. THE MANAGING DIRECTOR KSRTC DIVISION CENTRAL OFFICE K H ROAD, SHANTHINAGAR BANGALORE-560027 (INSURER OF KSRTC BUS NO.KA-07-F-1386).
4. SRI K VANARAJU MAJOR S/O SRI KEMPAIAH RESIDING AT NO.1040 13TH MAIN ROAD SRINAGAR BANGALORE-560050 (OWNER OF MOTOR CYCLE NO.KA.05/HP-849).
(BY SRI. P SURESH, ADV. FOR R1 & R2 SRI K NAGARAJA, ADV. FOR R3 R4- SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2013 PASSED IN MVC NO.5023/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.7,68,600/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A.NO.2045/2014 BETWEEN:
THE MANAGING DIRECTOR KSRTC DIVISION CENTRAL OFFICE K.H. ROAD, SHANTINAGAR BANGALORE-560027.
(R.C. OWNER OF INTERNAL INSURER OF THE KSRTC BUS BEARING NO.KA-07-F-1386) REP. BY CHIEF LANE OFFICER KSRTC, CENTRAL OFFICE BANGALORE-560 027.
...APPELLANT (BY SRI.K NAGARAJ, ADV.) AND:
1. KRISHNAMURTHY S/O SHANKARA NAIDU AGED ABOUT 56 YEARS 2. UMA MAHESHWARI W/O KRISHNA MURTHY AGED ABOUT 42 YEARS BOTH ARE R/AT NO.8 11TH CROSS ROAD, 12TH MAIN ROAD NEAR RAGHAVENDRA CIRCLE SRINAGAR BANGALORE-560050.
3. THE NEW INDIA ASSURANCE COMPANY LTD., CDU-VI RESIDENCY ROAD CROSS (671400) NO.45/7, GROUND FLOOR VINAYAKA COMPLEX RESIDENCY ROAD CROSS BANGALORE-560025.
REPRESENTED BY ITS (INCHARGE MANAGER INSURER OF THE VEHICLE BEARING KA-05-HP-849).
4. K. VANARAJU S/O KEMPAIAH R/AT NO.1040 13TH MAIN ROAD, SRINAGAR BANGALORE-560050 (OWNER OF THE MOTOR CYCLE) (EXPARTE BEFORE THE COURT BELOW) …RESPONDENTS (BY SRI. P SURESH, ADV. FOR R1 & R2 SRI. K.S. LAKSHMINARASAPPA, ADV. FOR SRI B.C.SEETHARAMA RAO, ADV. FOR R3 R4 – SERVED & UNREPRESENTED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2013 PASSED IN MVC NO.5023/2012 ON THE FILE OF THE XIII ADDL. SMALL CAUSE JUDGE, MEMBER, MACT, METROPOLITAN AREA, BANGALORE, (SCCH.NO.15), AWARDING A COMPENSATION OF RS.7,68,600/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants, Insurer of the motorcycle as well as Karnataka State Road Transport Corporation (for short ‘Corporation’) are before this Court in these three appeals, challenging the judgment and award dated 02.09.2013 passed in MVC No.5023/2012 on the file of the XIII Addl. Small Cause Judge and Member, MACT, Bangalore (hereinafter referred to as 'the Tribunal’ for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental death of one Roopesh in a road traffic accident. It is stated that on 07.03.2012, the deceased was proceeding as a pillion rider on motorcycle bearing registration No.KA-05/HP-849 near Ramohalli cross, Bangalore-Mysore Road, Kengari Hobli, Ramanagar. While taking U-turn, a KSRTC bus bearing registration No.KA-07/F-386 came in high speed and in a rash and negligent manner and dashed to the motorcycle, due to which, the deceased fell down and suffered multiple injuries and succumbed to the injuries. The deceased was aged 19 years and was working as driver, earning a sum of Rs.9,000/- p.m.
3. On service of notice, respondent No.3/owner of the motorcycle remained absent. Respondents No.1 and 2 appeared and filed their statement of objections denying the claim petition averments. Respondent No.1/ Corporation contended that the accident took place solely due to the rash and negligent riding of the motorcycle. Respondent No.2/Insurer of the motorcycle contended that the accident took place solely due to the rash and negligent driving of the bus driver. It is also stated that the rider of the motorcycle was not having valid driving licence as on the date of accident.
4. Claimant No.2/mother of the deceased got examined herself as P.W.1 and also examined P.W.2/Suresh, rider of the motorcycle apart from marking Ex.P1 to Ex.P10. On behalf of respondents, R.W.1 driver of the bus was examined.
5. The Tribunal, on appreciating the material on record awarded total Compensation of Rs.8,54,000/- out of which, 10% was deducted towards contributory negligence on the part of the deceased, with interest at the rate of 8% p.a., from the date of petition till realization on the following heads:
1. Loss of dependency :: Rs.4,86,000/-
2. Add 50% future prospects :: Rs.2,43,000/-
3. Medical expenditure :: Rs. 5,000/-
4. Loss of love & affection :: Rs. 50,000/-
5. Loss of estate :: Rs. 50,000/-
6. Transportation of dead body & funeral expenses :: Rs. 20,000/-
Total Rs.8,54,000/-
The claimants not being satisfied with the quantum of compensation are before this Court in MFA No.2386/2014 whereas the insurer of the motorcycle and respondent/Corporation are in appeals, being aggrieved by saddling of the liability on them at 45% each are before this Court.
5. Heard the learned counsel for the parties and perused the material on record including the Lower Court Records.
6. Learned counsel for the respondent/Corporation submits that the accident had occurred solely due to the negligent riding of the motorcycle and as such, saddling the liability on respondent/Corporation to an extent of 45% is wholly erroneous. Referring to Ex.P3/sketch, it is submitted that the deceased was proceeding on a motorcycle as pillion rider from Bangalore towards Mysore and suddenly the rider of the motorcycle took U-turn to go to Bangalore side at Ramohalli junction and the accident had taken place in the middle of the road, which was leading to Bangalore City. If the rider of the motorcycle was to take U-turn, he need not have come to the middle portion of the road. According to the mahazar, left side of the motorbike was damaged whereas right side of the bus was damaged. Relying upon Rule 9 and Rule 12 of The Rules of the Road Regulations, 1989 learned counsel submits that rider of the motorcycle ought to have given way for the vehicles moving on the main road and while taking U-turn, the rider of the motorcycle ought to have given hand signal. Thus, he submits that rider of the motorcycle contributed more negligence to the occurrence of the accident.
7. With regard to quantum of compensation is concerned, learned counsel for the KSRTC submits that the Tribunal committed an error in awarding 50% of the assessed income towards future prospects whereas the claimants would be entitled for only 40% of the assessed income towards future prospects. It is also submitted that the Tribunal committed an error in awarding 8% interest on the Compensation amount, instead of 6% per annum.
8. Learned counsel for the insurer of the motor bike submits that there was no negligence on the part of the rider of the motorcycle and the accident had taken place solely due to the negligence of driver of the KSRTC bus. The accident had taken place at Ramohalli Junction and at the junction, driver of the KSRTC bus ought to have been more cautious and failure on the part of the driver of the KSRTC bus to be cautious, has resulted in occurrence of the accident. Thus, he prays for shifting the entire liability on the Corporation.
9. Per contra, learned counsel for the claimants would submit that the Tribunal committed an error in saddling 10% of contributory negligence on the rider of the motorcycle. It is his submission that the accident had taken place solely due to the negligence on the part of the driver of the KSRTC bus, as he was not cautious and drove the bus in high speed and in a rash and negligent manner. Learned counsel also submits that while taking U-turn, rider of the motorcycle had given hand signal and only after looking at the movements of the motor vehicles on the other lane, the rider of the motorcycle decided to take U-turn, but the driver of the KSRTC bus with over-speed came and dashed to the motorcycle. Accident is of the year 2012 and income of the deceased assessed by the Tribunal at Rs.4,500/-
p.m. is on the lower side. Learned counsel for the claimants submits that the deceased was working as a driver and was earning Rs.9,000/-p.m. To establish that he was working as driver, Ex.P10-copy of the Driving Licence is placed on record. Thus, he prays for enhancement of income assessed by the Tribunal.
10. Having heard the learned counsel for the parties and on perusal of the entire lower court records, the following points would arise for consideration:
(i) Whether the Tribunal is justified in saddling the liability at 45% on the respondent/KSRTC as well as the insurer of the motorcycle?
(ii) Whether the income assessed by the Tribunal at Rs.4,500/- p.m., of the deceased is proper and correct?
(iii) Whether the claimants would be entitled for 50% of the assessed income towards future prospects?
11. Answer to point No.(i) is in the affirmative, points No.(ii) and (iii) would be in the negative for the following reasons:
The accident occurred on 07.03.2012 between the motorcycle bearing registration No.KA-05/HP-849 and KSRTC bus bearing registration No.KA-07/F-386 and the accidental death of one Roopesh, son of the claimants is not in dispute in this appeal. The insurer and KSRTC are in appeals, aggrieved by saddling of 45% of the contributory negligence on them. Learned counsel for the KSRTC submits that the accident occurred solely due to the negligence of the rider of the motorcycle. Rider of the motorcycle while coming from Bangalore side at Ramohalli junction took U-turn without noticing on-coming vehicles on the other lane and in violation of Rules 9 and 12 of the Road Regulations. To appreciate the contention of the respondent/Corporation, it is necessary to peruse Ex.P3/spot sketch, Ex.P2/mahazar along with IMV report/Ex.P4. On perusal of Ex.P3, sketch of the spot of accident, it is seen that the motorcycle on which, the deceased was proceeding was coming from Bangalore side towards Mysore and at Ramohalli junction, the rider of the motorcycle took U-turn and when he was taking U-turn, the KSRTC bus coming from Mysore side to Bangalore, dashed the motorcycle in the middle of the lane. But perusal of IMV report and Ex.P2/Mahazar would indicate that the left side of the motorcycle and also left side indicator was damaged. The accident had taken place at the junction of Ramohalli.
12. Rule 12 of the Rules of Road Regulations, 1989 requires a rider who takes U-turn to show hand signal watching a rear view mirror, whereas Rule 9 of the Regulations requires a person who enters the main road to give way to the vehicles proceeding on the main road and then to enter the main road. To appreciate the contention of the Corporation with reference to Rules 9 and 12 of the Regulations, there is no evidence on record. The Corporation has examined the driver of the bus as R.W.1. Rider of the motorcycle who is examined as P.W.2 in his evidence has stated that while taking U- turn near Ramohalli Cross, suddenly the KSRTC bus came in high speed and rash and negligent manner and dashed to the motorcycle. R.W.1 driver of the bus in his evidence has stated as follows:
“However, the Petitioners who hand in glove with the rider and owner of the said motor cycle, falsely implicated our bus and foisted a false case in active collusion and connivance with the police by concocting the documents by twisting the entire episode to suit the need of the hour, with the sole intention to make a wrongful gain from our corporation and at the same time to save the rider and owner of the motor cycle from the consequences of alleged accident and further expecting that it would be easy to get compensation from corporation rather than from the rider and owner of the motor cycle.”
13. A reading of the above evidence of R.W.1/driver of the KSRTC bus would give an impression that the KSRTC bus was falsely implicated and a false case has been foisted with the Police and owner of the two wheeler. If that is the evidence of the bus driver, the argument of the Corporation that accident occurred solely due to negligence of the rider of the motor cycle would be contrary to the evidence of R.W.1. R.W.1 in his evidence states that the Police people were very much at the spot and the respondent/Corporation could have examined any of the police who were present on the spot. As stated by R.W.1, the police who were on the spot would have been the best witness to state about the negligence of the vehicles in question. The respondent/Corporation has not placed on record any cogent evidence to say that the accident has occurred solely due to the negligence of the rider of the motorcycle.
14. On the other hand, it is to be seen that the diver of the KSRTC bus ought to have been more cautious when he came near the Ramohalli junction. The accident had admittedly taken place near Ramohalli junction. It is on record that the driver of the KSRTC bus came in a high speed and rash and negligent manner and dashed to the motorcycle. More over charge sheet is filed against the driver of the KSRTC bus. A close scrutiny of the evidence of P.W.2, R.W.1, Ex.P2 and Ex.P3, I am of the view that the Tribunal has rightly saddled the contributory negligence and liability at 45% each on KSRTC as well as the Insurer of the motorcycle and 10% on the deceased, which needs no interference.
15. Accident is of the year 2012. The income of the deceased assessed by the Tribunal at Rs.4,500/- p.m., is on the lower side. The claimants state that the deceased was working as a driver, earning more than Rs.9,000/- p.m. The claimants have not placed on record any material to establish the exact income of the deceased. The claimants have not placed on record any material to establish that the deceased was working as driver and to show that the deceased was possessing driving licence. In the absence of establishing avocation of the deceased and failure to establish the exact income of the deceased, the notional income of the deceased could be safely assessed at Rs.5,500/- p.m. The Tribunal awarded 50% of the assessed income towards future prospects. The deceased was aged about 19 years as on the date of the accident. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held that wherever the deceased was aged below 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects. In the instant case, the claimants would be entitled for adding 40% of the assessed income towards future prospects instead of 50% awarded by the Tribunal. The Tribunal has awarded interest at the rate of 8% p.a. This Court, in a case reported in 2018(3) AKR 690 in the case of VIJAY ESHWAR JADHAV AND OTHERS V. ULRICH BELCHIOR FERNANDES AND ANOTHER considering Section 34 of CPC has held at paragraphs 14 and 15 has held as follows:
14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub-sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted n 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.
Following the above said decision, I deem it appropriate to award interest at the rate of 6% per annum instead of 8% as awarded by the Tribunal. Thus, the claimants would be entitled for the following modified Compensation:
1. Loss of dependency including future prospects (5500+40%=7700-50%=3850
Thus, the claimants would be entitled to total Compensation of Rs.8,66,600/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.8,54,000/- awarded by the Tribunal.
15. Accordingly, all the three appeals are allowed in part and the judgment and award dated 02.09.2013 passed in MVC No.5023/2012 on the file of the XIII Addl. Small Cause Judge, Member, MACT, Metropolitan Area, Bangalore is modified to the above extent.
In view of the contributory negligence attributed to the deceased at 10%, the claimants would be entitled for Compensation of Rs.7,79,940/-. The insurer of the motorcycle and KSRTC are liable to pay the Compensation at 45% each.
The amount in deposit in MFA No.9706/2013 and MFA No.2045/2014 be transmitted to the concerned Tribunal.
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