IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. No. 2848/2017 (MV) BETWEEN:
1. SMT. SARASWATHI P AGED ABOUT 45 YEARS W/O LATE KRISHNA BHAT 2. NANDA KISHORE AGED ABOUT 23 YEARS S/O LATE KRISHNA BHAT 3. NAVANEESHA AGED ABOUT 17 YEARS, S/O LATE KRISHNA BHAT MINOR REPRESENTED BY HIS MOTHER NATURAL GUARDIAN SMT. SARASWATHI P 4. SMT. SARASWATHI AMMA AGED ABOUT 85 YEARS W/O LATE RAMAKRISHNA BHAT ALL ARE RESIDING AT CHIRASHREE 1ST FLOOR, NEAR KEPULA CIRCLE CHIKKAMUDNOOR VILLAGE & POST PUTTUR TALUK, D.K. 574 203.
...APPELLANTS (By SRI.PUNDIKAI ISHWARA BHAT., ADVOCATE) AND 1. SRI. SANDEEP V SALIAN AGED ABOUT 32 YEARS S/O VISHWANATH SALIAN R/AT OPP. PERSONAL COMPLEX OLD ROAD,YENAGUDDE VILLAGE, UDUPI TALUK AND DISTRICT – 574 105.
2. SHEKARA AMEEN AGED ABOUT 57 YEARS S/O NEMU SUVARNA R/AT DANDTHEERTHA HOUSE ULIYARAGOLI VILLAGE UDUPI TALUK AND DISTRICT - 574 106.
3. THE NEW INIDA ASSURANCE CO.LTD. UDUPI BRANCH OFFICE UDUPI-576101, REP. BY ITS MANAGER.
…RESPONDENTS (By SRI: ASHOK N PATIL., ADVOCATE FOR R3 R1 AND R2 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED : 05.12.2016 PASSED IN MVC NO.934/2015 ON THE FILE OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the legal representatives of deceased P.Krishna Bhat, who died in a road traffic accident, assailing the judgment and award dated 05/12/2016 passed by the V Addl. District & Sessions Judge, D.K. Mangaluru, sitting at Puttur D.K. (hereinafter referred to as “the Tribunal” for the sake of convenience).
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribuhnal.
4. It is the case of the appellant/claimants that on 03/03/2015, P.Krishna Bhat was riding motorcycle bearing No.KA-21-E-822 slowly and steadily from Syndicate Bank Road towards the main road at Udupi. When he was near the junction, at about 2.30 p.m., he just turned left near New Diana Hotel, when a bus bearing No.KA-20-AB-1482 came from Brahmagiri side in a rash and negligent manner and dashed against Krishna Bhat. As a result, he fell down from his motorcycle as he sustained grievous injuries on his head and other parts of the body and succumbed to the injuries on the way to hospital. Post-mortem examination was conducted in the District Government Hospital, Udupi. Contending that deceased Krishna Bhat was aged about 54 years and was working as Senior Branch Manager in Syndicate Bank, MIT Campus Branch, Manipal and earning Rs.79,768/- per month and had about six more years of service remaining and that on account of the accident, the claimants were suffering from mental agony and penury, they preferred the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on various heads.
5. In response to the notice issued by the Tribunal, respondent Nos.1 and 2 remained absent and were placed ex parte, while respondent No.3/insurance company appeared through its advocate and has filed its written statement.
6. The insurance company denied the allegations in the claim petition and contended that the compensation claimed by the claimants to the tune of Rs.1.00 crore is excessive and exorbitant. It contended that there was no nexus between the death and the alleged accident. That the accident occurred due to the rash and negligent riding of the motorcycle by the deceased and all of a sudden he entered the main road and dashed against the bus, which was moving very slowly and on the correct side. That the rider of motorcycle is guilty of total negligence. Therefore, the insurer is not liable to satisfy the award. Alternatively, it was contended that there was contributory negligence on the part of the rider of the motorcycle to an extent of 50%. The insurance company also averred that any award to be satisfied by it would be subject to the terms and conditional of the policy. The insurance company sought for dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioners prove that on 03/03/2015 deceased P.Krishna Bhat was riding motorcycle bearing Reg.No.KA-21-E- 822 very slowly and steadily from Syndicate Bank Road towards the main road at Udupi and he reached the junction at about 2.30 p.m. and just turned left and near New Diana Hotel a bus bearing Reg.No.KA-20-AB-1482 which came from Brahmagiri side being driven by its driver in a very high speed, rash and negligent manner dashed the motorcycle of the deceased, due to which Krishna Bhat along with bike was thrown to the road. Motorcycle was damaged and Krishna Bhat sustained grievous injuries to head and other parts of the body and he succumbed to the injuries and same is actionable negligence of respondent No.1 as alleged?
(ii) Whether the petitioners are entitled for compensation? If so, what amount and from whom?
(iii) What Order or Award?
8. In order to substantiate their case, the claimants examined two witnesses and produced sixteen documents, which were marked as Exs.P-1 to P-16, while on behalf of insurance company three documents were marked as Exs.R-1 to R-3 through RW.1, who was the driver of the bus.
9. On the basis of the evidence on record, the Tribunal answered issue No.1 ‘partly in the affirmative’ and issue No.2 also ‘partly in the affirmative’ and assessed the compensation at Rs.47,86,220/-, but awarded compensation of Rs.38,28,976 only after holding that the deceased had contributed to the accident by way of contributory negligence to the accident to an extent of 20%. The said compensation carried interest at the rate of 7% per annum from the date of claim petition till realization. Being aggrieved by the said judgment and award, the claimants have preferred this appeal.
10. We have heard learned counsel for the appellants and learned counsel for respondent No.3/insurer.
11. Respondent Nos.1 and 2 have been served and are unrepresented.
12. We have perused the material on record as well as the original record.
13. Learned counsel for the appellants has made a two fold submission: firstly, he contended that the tribunal was not right in attributing 20% contributory negligence on the deceased and thereby deducing 20% from the total compensation awarded. He contended that the bus was proceeding at a great speed and in a reckless manner; that the driver of the bus was totally negligent in causing the accident; that the width of the road is 20 feet and the spot of the accident was two feet from the footpath which only demonstrates the fact that the bus was proceeding on the extreme left side of the road so as to hit the motorcycle of the deceased which had just entered the main road from the cross road. He contended that the driver of the bus ought to have taken care to ascertain as to whether there was any other vehicle proceeding on the left side of the road on coming from the cross road approaching the main road and sufficient space ought to have been provided for those vehicles to move, instead, the driver of the bus recklessly dashed against the rider of the motorcycle, who died on account of serious and grievous injuries sustained in the accident. He submitted that the tribunal ought to have apportioned 100% negligence on the driver of the bus. Therefore, the said finding may be reversed in this appeal.
14. Learned counsel for the appellants next contended that the quantum of compensation awarded by the tribunal is meager and on the lower side; that the deceased Krishna Bhat was working as a Senior Branch Manager at Syndicate Bank, MIT Campus Branch, Manipal; he was aged 54 years; he had sufficient experience in banking services. As per Ex-P10, which is a certificate dated 5th April 2016 issued by the Regional Manager of the Syndicate Bank, Udupi, the gross monthly salary of Krishna Bhat for the month of February 2015 was Rs.77,956.23 paise and hence the tribunal which has construed the same, has computed the annual salary at Rs.9,35,474/- but after deducting the professional tax and Income tax, it has held that the net salary was Rs.7,07,432/-. The tribunal has not added atleast 15% of the net income towards future prospects as per the latest dictum of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs.
PRANAY SETHI AND ORS. reported in (2017) 16 SCC 680. He further submitted that the tribunal was not right in deducting 1/3rd of the said income towards the “personal expenditure of the deceased” as there are four claimants and hence 1/4th of the said amount ought to have been deducted as per the dictum of the Hon’ble Supreme Court in the case of SMT. SARLA VERMA vs. DELHI TRANSPORT CORPORATION & ANR. reported in (2009) 6 SCC 121. Learned counsel for the appellants further contended that the award of compensation on the ‘conventional heads’ is on the lower side. Therefore, the compensation may be reassessed and enhanced compensation may be awarded by holding that there was 100% negligence on the part of the driver of the bus.
15. Per-contra, learned counsel for respondent No.3-insurer vehemently contended that the finding arrived at by the tribunal on the aspect of negligence could not have called for interference in this appeal. Deceased Krishna Bhat was approaching the main road from the cross road. A duty was cast on him to ascertain as to whether there was free passage for him to approach the main road from the cross road. He ought to have turned to his right to ascertain as to whether any vehicle, more particularly, the bus in question was approaching, rather, he just turned to his left and as a result, he came in the way of the bus; that the driver of the bus infact was not negligent in causing the accident, however, the tribunal has apportioned negligence on the driver of the bus to an extent of 80% and on the rider of the motorcycle, the deceased, to an extent of 20%. Said finding may not be faulted with or interfered with by this Court.
16. He further submitted that the compensation awarded by the tribunal is just and proper and the same would not call for any enhancement. Rather, he contended that the deceased was aged 54 years, he was working in a Nationalised Bank and therefore, the split multiplier formula ought to have been adopted, in which event, the compensation awarded by the tribunal itself would be excessive, hence, there is no merit in the appeal. Learned counsel for the insurance company sought for dismissal of the appeal.
17. Upon hearing learned counsel for the respective parties and on perusal of the material on record as well as original record, the following points would arise for our consideration:-
1. Whether the tribunal was justified in apportioning negligence on the deceased to an extent of 20% and 80% on the driver of the bus and thereby deducting 20% of the compensation awarded towards contributory negligence of the deceased?
2. Whether the appellants-claimants are entitled to additional compensation?
3. What order?
18. The fact that on 03.03.2015 at about 2.30 p.m., Krishna Bhat was riding the motor cycle bearing No.KA-21-E-822 from Syndicate Bank on cross road towards main road at Udupi is not in dispute; the fact that he turned towards left side from the cross road to the main road is also not in dispute. It is also not in dispute that the bus bearing No.KA-20-AB-1482 which was proceeding from Brahmagiri side dashed against the motor cycle on which Krishna Bhat was riding, causing an accident, about two feet from the foot path resulting in serious injuries and his death. Regarding negligence on the part of the driver of the bus as well as on the rider of the motorcycle, the tribunal on assessment of the evidence on record has held that the driver of the bus was negligent to an extent of 80% while the deceased rider of the motor cycle was negligent to an extent of 20%. The aforesaid finding has been accepted by the Insurance company, while the claimants have assailed the same. The contentions in regard to the apportionment of negligence made by the respective counsel would not call for a reiteration except highlighting the fact that the claimants through their counsel have contended that the tribunal was not right in recording a finding that there was contributory negligence on the part of deceased Krishna Bhat, who was riding the motor cycle on the fateful day and thereby deducting 20% of the compensation amount.
19. We have perused the documents on record viz., Ex-P1 which is true copy of the FIR; Ex-P2 being true copy of the complaint; Ex-P3 which is true copy of spot mahazar and Ex-P4 which true copy of the spot sketch and Ex-P6 is true copy of the charge sheet which was filed against the driver of the bus. Merely because a charge sheet was filed against the driver of the bus is not conclusive in the matter. The tribunal or this Court would have to consider the aspect of negligence by keeping in mind the Motor Vehicles(Driving) Regulations.
20. It is not in dispute that Krishna Bhat was proceeding on the motor cycle from a cross road and wanted to approach the main road and Krishna Bhat approached the main road, while the bus was proceeding on the main road which was coming from Brahmagiri side towards Udupi. It is common knowledge and practice that when a vehicle would proceed from the cross road to the main road, a duty is cast on the driver of the said vehicle to firstly, ascertain as to whether any vehicle is proceeding from the right side on the main road so as to be sure about the clearance for the driver of the vehicle on the cross road to approach the main road. In the instant case, it is clear that deceased Krishna Bhat failed to ascertain the said aspect, inasmuch as, he just turned to the left from the cross road to the main road thereby coming in the way of the bus. In this regard, it is also to be noted that when a vehicle is proceeding on the main road on which there are cross roads, which would meet the main road at the junction, a similar duty is cast on the driver who was driving the vehicle on the main road to be cautious and slow while approaching the junction where cross road would meet the main road. In the instant case, it is clear that the driver of the bus has also failed to slow down the vehicle and not been cautious in observing or taking note of the fact that there would have been every possibility of a vehicle coming from cross road to the main road and therefore at the junction to have slowed down the vehicle. In the result, we find that both deceased as well as driver of the bus were negligent in their own ways in causing the accident.
21. The tribunal has however apportioned the negligence to an extent of 80% on the driver of the bus and 20% contributory negligence on the driver of the motorcycle- deceased Krishna Bhat. It is also pertinent to note that the insurance company has not assailed the said finding. The claimants have however contended that the entire negligence must be fastened on the driver of the bus. However, we find that such a contention cannot be accepted as we have already noted that a duty was cast on deceased Krishna Bhat to have slowed down his vehicle and to make sure as to which vehicle was coming from right side on the main road before turning on the left side to approach the main road at the junction. Instead, the evidence on record including that of the eyewitness PW-2 is that he just turned to the left from the cross road to the main road which would imply that there was failure on the part of deceased Krishna Bhat in being cautious in ascertaining about the vehicles that may approach on the main road, consequently, there was collision of both the vehicles. Hence the tribunal found that there was negligence on the part of deceased Krishna Bhat to an extent of 20%.
22. Although learned counsel for the insurance company contended that the percentage of negligence on the part of the deceased must be enhanced as a duty was cast on the deceased who was riding the vehicle from the cross road to the main road after following all precautions, we do not find that any appeal is filed by the Insurance company. When the tribunal has held that there was 20% contributory negligence on the part of the deceased, to increase said percentage of negligence on the deceased, particularly when no appeal has been filed by the respondent insurer, is not just and proper on reassessment of the oral and documentary evidence in light of the contentions raised by the respective parties, we find it just and proper to confirm the finding of the tribunal on the aspect of apportionment of negligence. Consequently, the observation made by the tribunal that there was 20% contributory negligence on the part of deceased Krishna Bhat is affirmed. Hence, point No.2 is accordingly answered.
23. The next point is regarding quantum of compensation that has to be awarded to the claimants. Here again, the contentions of the respective parties on the quantum of compensation to be awarded to the appellants/claimants would not call for a reiteration. On perusal of Ex-P10 which is a certificate issued by the Regional Manager of Syndicate Bank dated April 05th 2016, it is noted that the monthly gross salary of the deceased for the month of February 2015 was Rs.77,956.23 paise. The accident occurred on 03.03.2015. Hence, the last drawn salary has been established by the claimants through Ex-P10. Said last drawn salary has been taken into consideration by the tribunal and the tribunal has held that the total gross annual salary of the deceased would be Rs.9,35,474.76 paise and has deducted Rs.2,400/- towards professional tax and Rs.1,25,642/- towards income tax. The remaining amount being Rs.7,07,432/- has been taken into consideration. 1/3rd of the said amount has been deducted and consequently a sum of Rs.4,71,162/- has been deduced and appropriate multiplier of ‘11’ has been applied and compensation on the head of ‘loss of dependency’ has been arrived at to the tune of Rs.4,71,622/-. Infact, the total compensation awarded is Rs.47,86,220/- which has been apportioned on various heads in the following manner:-
Sl.No. Heads Amount in Rs.
1. For transportation of dead body and funeral expenses 25,000/-
2. Loss of love and affection 10,000/-
3. Loss of estate 10,000/-
4. Loss of consortium to petitioner No.1 25,000/-
5. Loss of dependency 47,16,220/-
TOTAL 47,86,220/-
24. We find that apart from holding that the approach of the tribunal in awarding the aforesaid compensation is incorrect, we also find that there is a mathematical error in calculation of the said amount. In the circumstances, we have reassessed the compensation as under:-
25. The gross annual income of the deceased is ascertained at Rs.9,35,472/- by considering the monthly gross salary at Rs.77,956/- which is a figure which is rounded of, although the exact salary of the deceased was Rs.77,956.23 paise. 20% of the said annual income has to be deducted towards income tax which is Rs.1,87,094/-. The resultant sum is Rs.7,48,377/-, out of which, Rs.2,400/- has to be deducted towards the annual professional tax resulting in Rs.7,45,977/-. In terms of the judgment of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND ORS. reported in (2017) 16 SCC 680, 15% of the said income would have to be added towards ‘future prospects’ of the deceased. As the deceased was 54 years of age, it would be Rs.1,11,896/-. Thus total amount towards on inclusion of amount towards future prospects would be Rs.8,57,873/-. Since there are four claimants, 1/4th of the said amount has to be deducted towards personal expenses of the deceased which is Rs.2,14,468/- and balance amount being Rs.6,43,405/-. The appropriate multiplier of ‘11’ has to be applied since deceased was 54 years of age. Consequently, the amount of compensation on the head ‘loss of dependency’ would be Rs.70,77,455/-. In additional, a sum of Rs.40,000/- has to be awarded towards ‘loss of spousal consortium’ to the widow of the deceased. A sum of Rs.30,000/-each would have to be awarded to the sons of the deceased towards of ‘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 further sum of Rs.15,000/- is awarded towards ‘funeral expenses’. Thus the total compensation would be Rs.72,37,455/-. 20% of the said amount would have to be deducted towards ‘contributory negligence’ on the part of the deceased in causing the accident which is Rs.14,47,491/- resulting in Rs.57,89,964/-.
26. Learned counsel for respondent No.3-insurer contended that the tribunal has awarded interest at the rate of 7% p.m. and the same may be reduced to 6%. Per- contra, learned counsel for the claimants contended that the insurance company has already satisfied the award by calculating compensation with interest at the rate of 7% p.a. on the compensation. Hence, this Court may not reduce the rate of interest by way of response. Learned counsel for the respondent No.3-insurance company contended that atleast on the enhanced compensation only 6% interest may be awarded. We find it just and proper to award interest at the rate of 6% p.a. on the enhanced compensation.
27. In the result, the appeal filed by the claimants is allowed-in-part.
28. The respondent No.3-insurance company is directed to deposit the balance compensation amount within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
The Registry to transmit the original record to the concerned tribunal.
Sd/- JUDGE Sd/- JUDGE *mn/-