IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.10886/2012 C/W M.F.A.Nos.8009/2012, 3642/2012, 9892/2012 & M.F.A.CROB.No.78/2012 in M.F.A.No. 3642/2012 (MV) IN M.F.A.No.10886/2012 BETWEEN:
THE MANAGING DIRECTOR KSRTC (DEPOT) CENTRAL OFFICES K.H. ROAD BENGALURU-560 027. … APPELLANT (BY SRI. F.S. DABALI, ADVOCATE) AND:
1. SMT. MANJULA W/O. LATE SRINIVAS AGED ABOUT 25 YEARS.
2. BHARTH KUMAR S/O. LATE SRINIVAS AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY HIS MOTHER & NATURAL GUARDIAN RESPONDENT No.1.
3. SRI. CHANNANAYAKA SINCE DEAD, R1, 2 AND 4 ARE LRs OF R3 4. SMT. KADRAMMA W/O. CHANNAYAKA AGED ABOUT 52 YEARS.
THE RESPONDENT Nos.1 TO 4 ARE RESIDING AT BALAGUNASE VILLAGE THALLANUR POST KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT-571 440. ...RESPONDENTS (BY SRI. B.C. THIPPESWAMY, ADVOCATE FOR R1 AND R4 R1,2 AND 4 ARE TREATED AS LRS OF R3 R2 IS MINOR REPRESENTED BY R1) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.09.2009 PASSED IN MVC.NO.4343/2008 ON THE FILE OF THE MEMBER MACT, 11TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.6,11,072/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN M.F.A.No.8009/2012 BETWEEN:
DIVISIONAL CONTROLLER KSRTC, HASSAN.
NOW BY THE MANAGING DIRECTOR K.S.R.T.C.
CENTRAL OFFICES K.H. ROAD BENGALURU-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER. … APPELLANT (BY SRI. F.S. DABALI, ADVOCATE) AND:
1. N. DASAN POTHI S/O. LATE YARAYANA POTHI AGED ABOUT 73 YEARS R/AT NEAR GUNDIBAIL HIGHER PRIMARY SCHOOL KUNJIBETTU POST UDUPI TALUK UDUPI DISTRICT-576 101.
2. RAMAKRISHNAIAH S/O. SAMPANGAIAH AGED ABOUT 43 YEARS MAYABANAHALLY VILLAGE RAMANAGARAM TALUK AND DISTRICT PIN-571 511.
3. THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD. REGD. OFFICE, ICICI BANK TOWERS BANDRA – KURLA COMPLEX BANDRA (EAST) MUMBAI-400 051 (WRONGLY SHOWN AS ZENITH HOUSE, KE KHODE MARG MAHALAXMI MUMBAI IN THE CAUSE TITLE BEFORE MACT) ... RESPONDENTS (BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R3 NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 3.11.2014 R1 IS SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.03.2012 PASSED IN MVC.NO.681/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, AWARDING A COMPENSATION OF RS.71,680/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.3642/2012 BETWEEN:
THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION SARIGE BHAVAN K.H. ROAD SHANTHINAGAR BENGALURU-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER. … APPELLANT (BY SRI. F.S. DABALI, ADVOCATE) AND:
1. CHI. V. RAKESH S/O. LATE ANITHA M. AGED ABOUT 23 YEARS R/AT No.18, GOVINDAPPA BUILDING 1ST MAIN ROAD DEEPANJALINAGAR MYSURU ROAD BENGALURU-560 026.
2. SRI. RAMAKRISHNA S/O. SRI. SAMPANGAIAH AGED MAJOR R/AT. No.44 MAYAGANAHALLI RAMANAGAR TALUK AND DISTRICT PIN-571 511.
3. THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD. No.89, S.V. COMPLEX 2ND FLOOR, HOSUR MAIN ROAD MADIWALA BENGALURU-560 068. ... RESPONDENTS (BY SRI. M.B. CHANDRA CHOODA, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 5.2.2015 R3 IS SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.01.2012 PASSED IN MVC.NO.2745/2008 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.9,89,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.9892/2012 BETWEEN:
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED REGIONAL OFFICE No.89, 2ND FLOOR S.V.R. COMPLEX HOSUR MAIN ROAD MADIVALA BENGALURU.
REPRESENTED BY ITS MANAGER LEGAL … APPELLANT (BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE) AND:
1. CHI. V. RAKESH S/O. LATE ANITHA M AGED ABOUT 22 YEARS R/AT No.18, GOVINDAPPA BUILDING 1ST MAIN ROAD DEEPANJALINAGARA MYSURU ROAD BENGALURU-26.
2. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION SARIGE BHAVAN K.H. ROAD SHANTINAGARA BENGALURU-27.
3. RAMAKRISHNA S/O. SAPANGAIAH R/AT NO.44, MAYAGANAHALLI RAMANAGARA TALUK AND DISTRICT.
... RESPONDENTS (BY SRI. F.S. DABALI, ADVOCATE FOR R2 R1 AND R3 ARE SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.01.2012 PASSED IN MVC.NO.2745/2008 ON THE FILE OF THE XIII ADDITONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.9,89,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.CROB.No.78/2012 BETWEEN:
CHI. V. RAKESH S/O. LATE ANITHA M. AGED ABOUT 23 YEARS R/AT No.18, GOVINDAPPA BUILDING 1ST MAIN ROAD DEEPANJALI NAGAR MYSURU ROAD BENGALURU-560 026. … CROSS OBJECTOR (BY SRI. M.B. CHANDRA CHOODA, ADVOCATE) AND:
1. THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION SARIGE BHAVAN K.H. ROAD SHANTHINAGAR BENGALURU-560 027 2. SRI. RAMAKRISHNA S/O. SRI. SAPANGAIAH R/AT No.44, MAYAGANAHALLI RAMANAGAR TALUK RAMANAGAR DISTRICT 3. ICICI LOMBARD GENERAL INSURANCE CO. LTD.
BY ITS MANAGER No.89, S.V. COMPLEX 2ND COMPLEX 2ND FLOOR, HOSUR MAIN ROAD MADIWALA BENGALURU-560 068. ... RESPONDENTS (BY SRI. F.S. DABALI, ADVOCATE FOR R1 SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R3 NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 5.2.2015) THIS M.F.A CROB IN M.F.A No.3642/2012 IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD DATED 28.01.2012 PASSED IN MVC.NO.2745/2008 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.As. AND M.F.A. CROB COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Miscellaneous First Appeal No.10886/2012 is filed against the judgment and award passed in MVC No.4343/2008 dated 30.09.2009 on the file of the Member MACT, XI Additional Judge, Court of Small Causes, Bengaluru, SCCH-12 questioning the fastening of entire liability on the appellant.
2. Miscellaneous First Appeal No.8009/2012 is filed against the award passed in MVC No.681/2009 dated 27.03.2012 on the file of Principal Senior Civil Judge & Additional MACT, Udupi questioning the fastening of liability on the appellant to an extent of 50%.
3. Miscellaneous First Appeal No.3642/2012 is filed against the judgment and award passed in MVC No.2745/2008 dated 28.01.2012 on the file of XIII Addl. Small Causes Judge & Member MACT, Bengaluru (SCCH.15) questioning the fastening of liability on the appellant to an extent of 50%.
4. Miscellaneous First Appeal No.9892/2012 is filed against the judgment and award passed in MVC No.2745/2008 dated 28.01.2012 on the file of XIII Additional Small Causes Judge & Member MACT, Bangalore (SCCH.15) questioning the fastening of liability on the Insurance Company.
5. Miscellaneous First Appeal Cross Objection No.78/2012 is filed questioning the quantum of compensation awarded in MVC No.2745/2008 dated 28.01.2012 on the file of XIII Additional Small Causes Judge & Member MACT, Bengaluru.
6. The factual matrix of these cases are that on 13.04.2008 at about 2.45 a.m., the deceased persons were traveling in Tata Mobile vehicle bearing Registration No.KA-03- AA-8628 and one of the passengers in KSRTC bus bearing registration No.KA-18-F-114 was also proceeding in the bus. It is the contention of the claimants before the respective Tribunals that due to rash and negligent driving of the drivers of Tata Mobile vehicle and also the KSRTC, the accident had taken place. As a result, Srinivas and five other inmates of Tata Mobile vehicle succumbed to fatal injuries and died on the spot. The claimants are the legal heirs of the deceased persons who were traveling in the Tata Mobile vehicle and succumbed to the injuries and injured is a passenger of the bus. Hence, they have filed the claim petitions before the respective Tribunals.
7. In pursuance of the claim petitions, notices were issued and KSRTC appeared before the respective Tribunals and contended that the accident is not on account of the negligence on the part of driver of KSRTC and it is on account of sole negligence of Tata Moblie vehicle. The KSRTC also denied the contents of the claim petitions with regard to their respective incomes and avocations. The insurer of the Tata Moblie vehicle in the written statement contended that the persons who were traveling in the vehicle were the gratuitous passengers and hence, the company is not liable to pay any compensation.
8. Learned counsel appearing for the petitioners contended that the respective petitioners have adduced their evidence before the respective Tribunals. Respondents have also adduced their evidence.
9. Having considered both oral and documentary evidence, the MACT, Bengaluru in MVC No.4343/2008 came to the conclusion that negligence is purely on account of the driver of KSRTC. Hence, the present appeal M.F.A.No.10886/2012 is filed contending that the Tribunal has committed an error in coming to the conclusion that the accident is on account of sole negligence on the part of driver of KSRTC. In the petition, the claimants examined one witness as PW.1 and got marked documents Ex.P.1 to Ex.P.8. KSRTC examined one witness as P.W.2.
10. The main contention of learned counsel appearing for the KSRTC in M.F.A.No.10886/2012 is that the Tribunal has erred in fastening the liability on the appellant on the ground that the accident has occurred due to sole negligence on the part of the driver of the KSRTC. Learned counsel in all other connected appeals filed by the KSRTC would contend that the respective Tribunals have committed an error in fastening the liability on the KSRTC to pay compensation to an extent of 50%. The very approach of the respective Tribunals is erroneous.
11. Learned counsel appearing for the appellant in M.F.A. No.9892/2012 contended that the Tribunal has committed an error in fastening the liability on the Insurance Company ignoring the evidence adduced on behalf of the Insurance Company. The Tribunal has committed an error in fastening the liability on the Insurance Company without taking into account of the fact that the goods vehicles are not permitted to carry the passengers. Learned counsel would also contend that all other connected cases are arising out of the same accident. The respective Tribunals have exonerated the liability on the Insurance Company, but in this case, without discussing the liability, the Tribunal has fastened the same on the Insurance Company.
12. Learned counsel appearing for the Cross Objector in his arguments vehemently contended that the Tribunal while awarding compensation did not award future prospects and hence, it requires interference of this Court to the judgment and award passed in MVC No.2745/2008.
13. Learned counsel appearing for the respondents in all the connected matters would contend that the Tribunal has not committed any error in fastening the liability on the Insurance Company as well as KSRTC. Since the Tribunals have rightly assessed both oral and documentary evidence, there are no grounds to interfere with the findings of the Trial Court.
14. Learned counsel appearing for the KSRTC would contend that M.F.A.No.2800/2010 connected with M.F.A. Nos.2801/2010, 2802/2010, 5204/2011, 5105/2011 and 5106/2011 are arising out of the same accident and in the said judgment and award, considering all the materials available on record, the contributory negligence has been apportioned to an extent of 50% each in respect of both the vehicles. Hence, the same has to be taken note of in Miscellaneous First Appeal No.10886/2012.
15. Having heard the arguments of the appellants’ counsel and also the learned counsel appearing for the respondents’ counsel, the points that arise for consideration of this Court are as follows:-
1. Whether the Tribunal has committed an error in fastening the entire liability on the KSRTC and whether M.F.A. No.10886/2012 requires to be allowed?
2. Whether the Tribunal has committed an error in fastening the liability on the KSRTC and in apportioning the contributory negligence to an extent of 50% and whether M.F.A.Nos. 8009/2012 and 3642/2012 require to be allowed?
3. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and whether M.F.A.No.9892/2012 requires to be allowed?
4. Whether the Tribunal has committed an error in not granting just and reasonable compensation in favour of the claimant and whether M.F.A. CROB. No.78/2012 requires to be allowed?
5. What Order?
16. Points No.1 and 2:- Having considered the contentions raised in Miscellaneous First Appeals No.10886/2012, 8009/2012 and 3642/2012 with regard to the contributory negligence on the part of the driver of KSRTC, this Court in M.F.A.No.2800/2010 connected with M.F.A. Nos.2801/2010, 2802/2010, 5204/2011, 5105/2011 and 5106/2011 has come to the conclusion that the negligence is on account of the driver of both the vehicles and accordingly, apportioned the contributory negligence in respect of the both vehicles to an extent of 50%.
17. Having considered the fact that already the connected matters, arising out of the same accident, have already been disposed of and in view of the findings given in those connected appeals as 50% negligence of both the vehicles, M.F.A. Nos.8009/2012 and 3642/2012 require to be dismissed.
M.F.A.No.10886/2012 requires to be allowed in part and fastening the entire liability on the KSRTC requires to be modified by reducing the liability to an extent of 50%. Accordingly, I answer point No.1 in partly affirmative and Point No.2 in the negative.
18. Point No.3:- The main contention of the appellant’s counsel in Miscellaneous First Appeal No.9892/2012 is that the Tata Mobile vehicle, which was carrying the passengers, is the goods vehicle and it was hired by the factory owner to go to temple. The records also reveal that they were traveling as passengers in the said goods vehicle. When such being the case, the Tribunal ought not to have fastened the liability on the Insurance Company since the said vehicle is the goods vehicle and has violated the terms and conditions of the policy. The Tribunal has committed an error in fastening the liability on the Insurance Company and it requires modification. Accordingly, I answer point No.3 in the affirmative by fastening the liability on the KSRTC and on the owner of the Tata Mobile vehicle to an extent of 50% each.
19. Point No.4: The claimant in M.F.A.CROB.No.78/2012 has contended that the Tribunal has committed an error in not awarding the just and reasonable compensation. It is contended that the Tribunal has taken the income of the deceased as Rs.8,000/- per month, but failed to award the future prospects and hence, this Court has to reassess the quantum of compensation.
20. The appellant in Miscellaneous First Appeal No.3642/2012 also contended that the Tribunal has committed an error in deducting 1/3rd towards the personal expenses of the deceased wherein the Tribunal ought to have deducted 50%. Hence, the quantum of compensation awarded requires to be reassessed.
21. Having taken note of Ex.P.13, the deceased was an employee and was drawing a salary of Rs.8,000/- per month. It is also the contention of the appellant’s counsel that the Tribunal ought to have taken note of the fact that the claimant is the only son. When such being the case, in view of Sarala Varma’s Case, the Tribunal ought to have deducted 50% towards the personal expenses instead of 1/3rd. Accordingly, the same is modified to an extent of 50%. However, the Tribunal also did not consider the future prospects and hence, this Court has to add the future prospects of 50% since he was working and drawing a salary in terms of Ex.P.13.
Rs.8,000+(8,000X50%)4,000=Rs.12,000 Rs.12,000-(12,000X50%)6,000=Rs.6,000 Rs.6,000X12X15=Rs.10,80,000/-.
The claimant is also entitled for an amount of Rs.30,000/- under the head of “conventional heads”. In all, the claimant is entitled for a compensation of Rs.11,10,000/-.
22. In view of the discussions made above, I pass the following :-
ORDER (i) M.F.A.No.10886/2012 is allowed in part and the liability on KSRTC is apportioned to an extent of 50%.
(ii) M.F.A.No.8009/2012 is dismissed.
(iii) M.F.A.No.3642/2012 is disposed of.
(iv) M.F.A.No.9892/2012 is allowed and MVC No.2745/2008 dated 28.01.2012 on the file of XIII Additional Small Causes Judge & Member of MACT, Bangalore (SCCH.15) is modified exonerating the liability of the insurance company and apportioned the liability to an extent of 50% each against KSRTC and owner of Tata Mobile vehicle.
(v) M.F.A. CROB. No.78/2012 in M.F.A.No.3642/2012 is allowed in part. The judgment and award of the Tribunal is modified granting a compensation of Rs.11,10,000/- as against Rs.9,89,400/-.
(vi) The Registry is directed to transmit the amount in deposit, if any, to the respective Tribunals forthwith.
(vii) The Registry or the Tribunal in MVC No.2745/2008 is directed to refund the amount deposited to the appellant in M.F.A. No.9892/2012.
(viii) The Registry or Tribunal is directed to refund the excess amount deposited by the appellant- KSRTC in M.F.A.No.10886/2012 to the appellant.
Sd/- JUDGE PYR