IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Miscellaneous First Appeal No.879/2014 (MV-D) BETWEEN :
1. SMT N B SAVITHA W/O LATE K C RANGASWAMY AGED ABOUT 31 YEARS 2. NEHA R D/O LATE K C RANGASWAMY AGED ABOUT 9 YEARS 3. DRUVA R NAYAK S/O LATE K C RANGASWAMY AGED ABOUT 7 YEARS APPELLANTS NO.2 AND 3 ARE MINORS REPRESENTED BY THEIR NEXT FRIEND MOTHER SMT. SAVITHA (1ST APPELLANT).
ALL ARE RESIDING AT SITE NO.5 II CROSS, RAMASWAMY LAYOUT DEVEERAMMANAHALLI NANJANGUD TALUK-571118 ... APPELLANTS (BY SMT. SUMA KEDIAYA, ADVOCATE) AND 1. THE DIVISIONAL CONTROLLER KSRTC, MYSORE RURAL DIVISION BANNIMANTAP MYSORE-570015 2. MADANAIKA S/O HUTCHANAIKA AGED ABOUT 54 YEARS (EX-PARTE) 3. RANGAMMA W/O MADANAIKA AGED ABOUT 23 YEARS (EX-PARTE) 4. MAHALAKSHMI S/O MADANAIKA AGED ABOUT 23 YEARS (EX-PARTE) RESPONDENTS NO.2 TO 4 ARE RESIDING AT KALALE VILLAGE NANJANGUD TALUK-571118 5. NATIONAL INSURANCE CO LTD RAMASWAMY CIRCLE CHAMARAJA DOUBLE ROAD MYSORE-570024 6. SMT. MASTAMMA W/O LATE CHIKKARANHAGANAIKA AGED ABOUT 64 YEARS R/AT THANDVADI VILLAGE GUNDLUPET TALUK-571111 ... RESPONDENTS (BY SRI. K N DAYALU, ADVOCATE FOR R1) SRI A.N. KRISHNA SWAMY, ADVOCATRE FOR RESPONDENT NO.5) RESPONDENT NO.6 SERVED.
NOTICE TO RESPTS.NO 2 TO 4 ARE DIPENSED WITH.
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2013 PASSED IN MVC NO.2064/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed to hear on I.A.No.2/14 filed by the appellants, with the consent of learned counsel on both sides, it is heard finally.
2. The claimant Nos. 1 to 3, being widow and minor children of deceased K.C. Rangaswamy, who died in a road traffic accident that took place on 14.09.2010 on Nanjangud Main road have filed this appeal assailing the judgment and award of the Fast Track Court –V and Addl. Motor Vehicles Claims Tribunal at Mysuru (hereinafter referred to as “Tribunal” for the sake of brevity), dated 18.02.2013 on the finding regarding negligence and also seeking for enhancement of compensation.
3. For the sake of convenience, parties herein shall be referred to, in terms of their status before the tribunal.
4. It is the case of the appellants/claimants, who filed the claim petition under Section 166 of the Motor Vehicles Act 1988, that K.C. Rangaswamy was proceeding on a motor bike bearing registration No. KA-09/EP 8554 along with his friend Mahadeva @ Mahadevanayaka as a pillion rider towards Nanjangud from Gundlupet side. When they were near Hosahalli village on Nanjangud-
Gundlupet road, at that time a KSRTC bus bearing registration No.KA-09/F 4101 came from the opposite side in a rash and negligent manner endangering human life and dashed against the motor bike. As a result of the impact, Rangaswamy fell down, sustained grievous injuries and immediately he was shifted to Government hospital Nanjangud, where he died on account of the injuries sustained by him in the accident. Post Mortem examination was conducted; thereafter body was handed over to the family members, who performed his funeral and obsequies. Contending that Rangaswamy was a hale and healthy person, aged about 33 years, working as a Safety Executive Officer in Apotex Pharmachem India Pvt. Ltd., Bengaluru, earning Rs.20,000/- p.m. and on account of his sudden death had left the family members in shock, penury and agony, they filed the claim petition seeking compensation of Rs.48,20,000/- with interest at the rate of 12% p.a. from the date of petition till realization.
5. Later on at the instance of respondent no.1- KSRTC Divisional Controller, KSRTC, Mysuru Rural Division, the legal representatives of the deceased owner and insurer of the motor bike bearing registration No. KA-09/EP 8554 on which Rangaswamy was proceeding as a rider of the motor cycle were arrayed as respondents no.2 to 5 before the tribunal.
6. In response to the notice issued by the Tribunal, respondents No.2 to 4 did not appear before the tribunal and they were placed ex-parte. But, respondents no.1 and 5 appeared before the tribunal through their counsel, but only respondent no.1 filed its written statement denying the averments made in the claim petition and contending that the claim petition was not maintainable in law or on facts. It was contended that the accident had occurred due to the rash and negligent riding of the motor cycle by the deceased and that no liability could be fastened on the respondents. It was further contended that the compensation sought for was exorbitant and excessive. Hence, respondent no.1 prayed for dismissal of the claim petition.
7. On the basis of the above pleadings, tribunal framed the following issues for its consideration:
1) Whether the petitioners prove that one K.C. Rangaswamy, s/o Chikkaranganaika met with a road traffic accident on 14.09.2010 at about 7.30 p.m. on Nanjangud-Gundlupet Main road, Hosahalli village, Nanjangud Taluk and died at the hospital, due to the rash and negligent driving by the driver of KSRTC bus bearing regn. No.KA09/F4101?
2) Whether the petitioners prove that they are entitled for compensation? If so, to what amount and from whom?
3) To what award and order?
8. In order to substantiate their case, widow of the deceased Rangaswamy viz., N.B. Savitha, was examined as PW1, another person by name Ranganaika was examined as P.W.2 and one of the representatives of the company in which the deceased was working i.e., Jose Xavier was examined as P.W.3. The claimants produced 14 documents which were marked as Exs.P.1 to P.14. While respondents examined one M Bhanu Prashanth, driver of the KSRTC bus involved in the accident as R.W.1 and Vijay Mane as R.W.2. Respondent No.1 produced four documents as Exs.R1 to R4. On the basis of the evidence on record, the Tribunal answered issue no.1 partly in the affirmative and while answering issue no.2 awarded compensation of Rs.23,50,000/- with interest at the rate of 6% p.a. from the date of claim petition till realization and apportioned the negligence between the driver of the KSRTC bus and the deceased rider of the motor cycle in the ratio of 75:25 and directed respondent No.1 - KSRTC to satisfy the award to an extent of 75%. The tribunal also apportioned the compensation in the ratio of 30:25:25:20 between the four claimants and issued directions regarding deposit and release of the compensation.
9. Being aggrieved by the finding given by the Tribunal on issue no.1 and seeking enhancement of compensation, the claimants 1 to 3 have filed this appeal. Claimant No.4, who is the mother of the deceased Rangaswamy has been arrayed as respondent no.6 in this appeal. She has been served, but is not represented, while other respondents no.1 and 5 are represented by their respective counsel. Notice to respondents no. 2 to 4 is dispensed with, as they were placed ex-parte before the tribunal.
10. We have heard learned counsel for the appellants and learned counsel for respondent no.1, learned counsel for respondent no.5 and perused the material on record as well the original record.
11. Smt. Suma Kediaya, learned counsel for the appellants made three submissions: Firstly, she contended that tribunal was not right in giving a finding to the effect that the deceased - rider of the motor bike was negligent to an extent of 25% in causing the accident. She drew our attention to relevant documents viz., Ex.P.3 and Ex.P.4 to contend that on a perusal of the same, it would establish that it was the driver of the KSRTC bus, who was the cause of the accident as he did not proceed in the lane meant for the vehicles proceedings from Nanjagud to Gundlupet . That the motor bike was proceeding from Gudlupet towards Nanjangud, the deceased was within the limits of the road and a perusal of Ex.P.4 would clearly indicate that the spot of the accident is on the side of the road on which the rider of the motor bike was proceeding which would clearly imply that the driver of the KSRTGC bus came on the wrong side and dashed against the motor bike. Therefore, 100% negligence ought to have been fastened on the driver of the KSRTC bus. In fact, Ex.P.8- charge sheet was also laid against the driver of the KSRTC bus. These facts have not been appreciated by the tribunal in its proper perspective, which has held that there was contributory negligence on the part of the deceased to an extent of 25% which is erroneous. She submitted that this Court may reverse the finding arrived at by the tribunal and conclude that there was 100% negligence on the part of the driver of the KSRTC bus.
12. Next, learned counsel contended that the claimants are entitled to enhanced compensation, as the tribunal has assessed the income of the deceased at Rs.22,000/- without properly appreciating the contents of Ex.P.10 and Ex.P.14. She submitted that, if those documents are taken into consideration, monthly income of the deceased would be about Rs.22,000/- and further having regard to the dictum of the Hon’ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi, reported in 2017(10) SCC 680, 50% of the said income must be added towards future prospects of the deceased. That there are four claimants, 1/4th of the said income must be deducted towards personal expenses of the deceased and accordingly, the compensation on the head of loss of dependency may be enhanced. She further submitted that the compensation on conventional heads may also enhanced and the total compensation to be reassessed would be much more than that what has been awarded by the Tribunal.
13. Next, she has contended that claimant No.4 being mother of the deceased was married to another person long ago and she was not in touch with the family of the deceased that the tribunal has apportioned 20% of the compensation which is excessive. That the claimant no.1 has to bring up two minor children and therefore, the apportionment of compensation to the mother of the deceased may be reduced.
14. Per contra, learned counsel for respondent no.1 KSRTC supported the judgment and award of the tribunal both on the finding of negligence and also on the quantum of compensation awarded by the tribunal. He contended that the motor cycle could have proceeded on the left side of the road, but the deceased did not proceed on the left side of the road. The motor cycle was attempting to overtake the car and in that process dashed against the KSRTC bus, which was coming from the opposite direction; that in fact, deceased himself was responsible for the accident. But, the tribunal has assessed the negligence to an extent of 75% on the part of the driver of the bus and 25% on the part of the deceased, which finding has been accepted by the KSRTC and therefore, this Court may not interfere with the said finding arrived at by the tribunal.
15. He further submitted that if at all this court is going to reassess the award in respect of future prospectus it cannot be 50% as contended by the learned counsel for the appellants. At best, it could be 40% only.
16. He further submitted that awarding of compensation arrived at by the tribunal to an extent of 23,50,000/- with interest at the rate of 6% p.a. is just and proper and same would not call for any interference by this Court. He contended that there is no merit in the appeal and same may be dismissed.
17. Learned counsel for respondent No.5 - insurer supported the judgment and award of the Tribunal and contended that there is no merit in this appeal.
18. Having heard learned counsel for the respective parties and on perusal of the material on record, as well original record, the following points arise for our consideration:
i) Whether the tribunal was justified in holding that there was 25% contributory negligence on the part of the deceased rider of the motor cycle bearing registration No.KA 09/EP 8554 and that there was only 75% negligence on the part of the driver of the KSRTC bus bearing No. KA-09/F 4101?
ii) Whether the claimants are entitled to additional compensation?
iii) What order?
19. The fact that on 14.09.2010 at about 7.30 p.m., Rangaswamy was proceeding on the motor cycle bearing No. KA-09/EP 8554 along with his friend Mahadeva @ Mahadevanayaka as a pillion rider towards Najangud from Gudlupet and KSRTC bus bearing registration no. KA-09/F 4101 was coming from opposite direction i.e., from Nanjangud towards Gudlupet has been established. The fact that there was collision of two vehicles which was coming from the opposite direction resulting in Rangaswamy sustaining grievous injuries and on account of the impact and collision he succumbed to the injuries has also been established by the claimants.
20. The controversy is, however, with regard to negligence and the finding which has been arrived at by the tribunal in that regard. As already noted, tribunal has apportioned the negligence between the deceased and driver of the KSRTC bus to an extent of 25% and 75%, which finding is assailed in this appeal.
21. Learned counsel for appellants has drawn our attention to Ex.P.3 and Ex.P.4 apart from other documents to contend that on perusal of the same, it would establish that it was the driver of the KSRTC bus, who had swayed to wrong side and consequently dashed against the motor cycle in which the deceased was proceeding. She has drawn our attention to the measurement of the road indicated in the said sketch and the spot shown in the said sketch to submit that driver of the bus was entirely negligent in causing the accident. We have perused the same. We find that the spot of the accident is on the road, on which the deceased was proceeding from Gudlupet towards Nanjangud; whereas KSRTC bus was proceeding in the opposite direction i.e., Najangud towards Gudlupet. The accident has occurred at the spot which is 2ft. away from the median towards the side where motor cycle was proceeding, which means, if the road measurement is 22 ft. bus has swayed 2 ft. on to the side on which motor cycle was proceeding and by ignoring the entire 13 ft. on its left side, and consequently, the accident occurred at the spot where exactly the motor cycle was proceeding which is within the median of the road from Gunglupet towards Nanjangud.
22. On a close perusal of the spot sketch- Ex.P.4, in light of the copy of the FIR- Ex.P.1; copy of the complaint - Ex.P.2 as well as copy of the spot mahazar - Ex.P.3 and copy of the charge sheet - Ex.P.8, which was filed against the driver of the KSRTC bus, same would lead to a conclusion that it was the driver of the KSRTC bus, who was entirely negligent in causing the accident, as he had swayed completely towards the wrong side and consequently dashed against the motor cycle. Therefore, tribunal was not right in answering issue no.1 partly in the affirmative and apportioning the liability to an extent of 25% on the part of the deceased and 75% on the part of the driver of the KSRTC bus. The said finding is reversed on account of the aforesaid discussion and reasoning given by us and we held and conclude that the entire negligence was on account of the driver of the KSRTC bus. Consequently, point No.1 is answered in favour of the claimants/appellants herein.
23. The next point is with regard to quantum of compensation awarded by the tribunal. That the claimants are awarded a total compensation of Rs.32,00,000/- in the following manner:
Loss of dependency Rs.31,68,000/-
Conveyance Rs. 2,000/-
For funeral expenses Rs. 10,000/-
For loss of love and affection Rs. 10,000/-
For loss of consortium Rs. 10,000/-
Total Rs.32,00,000/-
24. Out of the said amount, only Rs.23,50,000/- with interest at the rate of 6% p.a. from the date of claim petition till realization was apportioned to the claimants, as the tribunal held that the deceased was responsible for causing the accident and negligence to an extent of 25% was fastened on the part of the deceased himself. Since we have now held that, it was the driver of the KSRTC bus, who was completely negligent in causing the accident, it is necessary to re-assess the compensation with regard to various heads viz., loss of dependency and other conventional heads in order to ascertain as to whether claimants are entitled to additional compensation.
25. Ex.P.10 and Ex.P.14 have been produced by the claimants in order to substantiate their case with regard to monthly income of the deceased. Ex.P.10 is the salary certificate dated 29.09.2010 which has come into existence after the accident, while Ex.P.14 is the salary slip for the month of August 2010. The accident occurred on 14.9.2010. PW3- Jose Xavier, one of the representatives of the Company, where the deceased was working was examined and he has deposed that Ex.P.14 which is a pay slip indicates the salary that the deceased was receiving. Said pay slip is for the month of August, 2010; whereas, the accident occurred on 14.09.2010. Hence, we find that reliance could be placed on the said pay slip i.e., Ex.P.14 rather than Ex.P.10.
26. On a perusal of the same, we find that the gross salary of the deceased was Rs.22,586/-; that a sum of Rs.1,466 was deducted towards P.F.; Rs.200/- towards Professional tax; Rs.315/- towards Canteen charges; Rs.166.24 towards Airtel mobile phone charges and a sum of Rs.387/- towards income tax. In order to arrive at net salary, we find that deduction must be made only with regard to professional tax of Rs.200/- and income tax charges of Rs.387/-, further a sum of Rs.1446/- being deducted towards P.F. must be added to the salary. Hence, net salary would be Rs.23,465/-. The charges towards canteen and airtel mobile phone are ignored, since the deceased had a fixed salary and he was aged about 33 years at the time of the accident and death, 40% of the said salary ought to be added towards future prospects. In terms of the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi(supra), it would be Rs.9,386/-, the total being Rs.32,851/-. Since there are four claimants, one fourth of the said salary must be deducted towards personal expenses of the deceased in view of the judgment of the Hon’ble Supreme Court in the case of Sarala Verma and others Vs. Delhi Transport Corporation and another reported in 2009 (6) SCC, 121, consequently, balance amount would be Rs.24,638/- which has to be annualized and proper multiplier ‘16’ has to be applied. Thus the compensation on the head of loss of dependency would be Rs.24368 X 12 X 16 = 47,30 544/-.
27. Having regard to the latest dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Ltd., Vs. Nanu Ram Alias Chuhru Ram reported in 2018 ACJ, 2782 and Pranay Sethi (supra), a sum of Rs.40,000/- is awarded to the widow of the deceased towards loss of spousal consortium; a sum of Rs.30,000/- each is awarded to the minor children of the deceased towards loss of parental consortium and a sum of Rs.30,000/- is awarded to the mother of the deceased towards loss of filial consortium; a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- is awarded towards funeral expenses. Thus the total compensation now reassessed is Rs.48,60,544/- which shall carry interest at the rate of 6% p.a. excluding the period of delay in filing the appeal being 256 days till realization as against Rs.32,00,000/- awarded by the Tribunal. The enhanced compensation is Rs.16,60,544/-. Accordingly point No.2 is answered.
This takes us to another contention of appellants’ counsel with regard to the apportionment made to respondent no.6-mother of the deceased. She submits that 20% of the compensation has been apportioned to her that she was not in touch with the family members of the deceased and she is re-married and settled down with her husband . Therefore, 40% of the compensation may be apportioned to her and balance may be awarded to the minor children. The tribunal has apportioned the compensation to four claimants in the ratio 30:25:25:20. Insofar as 20% of compensation awarded to the mother of the deceased vis-a-vis the quantum of compensation arrived at by the tribunal is concerned the same is undisturbed. But, insofar as reassessed compensation is concerned, the mother of the deceased i.e., respondent no.6 herein shall be entitled to only 10% of the compensation.
Insofar as the reassessed compensation in respect of the widow is concerned, she is entitled to 30% and children shall be entitled to 30% each.
The entire compensation apportioned to the minor children of the deceased shall be deposited in any Post Office or nationalized Bank till they attained the age of majority. The tribunal has ordered for deposit only 40% of the share of claimant no.1. i.e,. wife of the deceased for a period of five years and ordered to release the balance 60% of the amount.
In respect of the reassessed compensation 75% of the said amount, which is apportioned to appellant no.1 shall be deposited in any Post office or nationalized bank initially for a period of 10 years and she is entitled to draw periodical interest on the said deposit.
The reassessed compensation with proportionate interest apportioned to the mother of the deceased shall be released to her on due identification.
The direction with regard to deposit and release as well as apportionment of compensation in respect of respondent No.6 mother of the deceased by the tribunal is undisturbed.
We are conscious of the fact that the claimants sought for compensation of Rs.48,20,000/-, but we are awarding a total compensation of Rs.48,60,544/- , since it is the duty of this Court to award just compensation.
Respondent KSRTC to deposit the balance compensation amount within four weeks from the date of receipt of a certified copy of this judgment.
In the result, appeal filed by the appellants is allowed. Parties to bear their respective costs.
In view of the disposal of the appeal, I.A.No.2/14 filed for stay stands disposed.
Registry to transmit original records to the concerned tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE Psg*