IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.2657/2018 C/W M.F.A. No.5569/2018 (MV-D) IN M.F.A. No.2657/2018 BETWEEN:
THE MANAGING DIRECTOR TAMILNADU STATE TRANSPORT CORPORATION LTD., TNSRTC, NO.12 RAMAKRISHNA ROAD, SALEM-636007 TAMILNADU STATE. ... APPELLANT (BY SRI SATHEESH H.K., ADVOCATE) AND:
1. SMT. JEYAMANI WELLESLEY S.M.
W/O LATE WELLESLEY STEPHEN MANOHAR AGED ABOUT 48 YEARS, 2. MASTER ANDREW JUDE STEPHEN S/O LATE WELLESLEY STEPHEN MANOHAR AGED ABOUT 17 YEARS, RESPONDENT NO.2 IS MINOR REPRESENTED BY HIS MOTHER/ NATURAL GUARDIAN RESPONDENT NO.1 HEREIN.
BOTH ARE R/AT. NO.48, TYPE-3 NIMHANS QUARTERS BLOCK B BYRASANDRA, JAYANAGAR BANGALORE SOUTH – 560 001. ... RESPONDENTS (BY SRI MOHAMMED SHERIFF, ADVOCATE FOR R-1 & R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16-09-2017 PASSED IN MVC NO.5289/2016 ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, AWARDING COMPENSATION OF RS.62,29,200/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT OF THE AWARD AMOUNT.
IN M.F.A. No.5569/2018 BETWEEN:
1. SMT. JEYAMANI WELLESLEY S.M.
W/O LATE WELLESLEY STEPHEN MANOHAR AGED ABOUT 48 YEARS.
2. MASTER ANDREW JUDE STEPHEN S/O LATE WELLESLEY STEPHEN MANOHAR AGED ABOUT 17 YEARS.
SINCE APPELLANT NO.2 BEING MINOR HENCE, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT. JEYAMANI WELLESLEY S.M.
BOTH ARE R/AT. NO.48, TYPE-3 NIMHANS QUARTERS BLOCK B BYRASANDRA, JAYANAGAR BANGALORE SOUTH – 560 001. ... APPELLANTS (BY SRI MOHAMMED SHERIFF, ADVOCATE) AND:
THE MANAGING DIRECTOR TNSTC (TAMILNADU STATE TRANSPORT CORPORATION), 12 RAMAKRISHNA ROAD, SALEM – 636 007. ... RESPONDENT (BY SRI SATHEESH H.K. ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16-9-2017 PASSED IN MVC NO.5289/2016 ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU (SCCH- 25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA.No.2657/2018 is filed by the Managing Director of Tamilnadu State Transport Corporation Ltd. (hereinafter referred to as “the Corporation” for the sake of convenience), while MFA.No.5569/2018 is filed by the claimants, both assailing the judgment and award dated 16/09/2017, passed in MVC.No.5289/2016, by the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru (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 Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.1.00 crore on account of the death of Wellesley Stephen Manohar, who died in a road traffic accident that occurred on 02/04/2016. According to the claimants, who are none other than the widow of the deceased and minor son, on 02/04/2016 at about 9.50 p.m., Wellesley Stephen Manohar was crossing the sub- road from south to north, Krishnagiri to Hosur National High Way Road, near 5 Star Petrol Bunk, Shanthinagar at Parendapalli, Hosur, when at that time, the bus bearing No.TN-30-N-0858 was driven in a rash and negligent manner by its driver so as to endanger human life and dashed against Wellesley Stephen Manohar. As a result, he sustained grievous injuries. He was shifted to Government Hospital, Hosur, and thereafter, he was shifted to Sparsh Hospital for better treatment. But inspite of best treatment, the injured Wellesley Stephen Manohar succumbed to the injuries on the same date. Contending that Wellesley Stephen Manohar was hale and healthy, was aged about 48 years and was working as a Manager in BGS Hospital and was earning a sum of Rs.7,54,940/- per annum and contributing the entire amount for the maintenance of his family, his widow and minor son filed the claim petition by contending that on account of his death, they were suffering agony and penury as they had lost the bread earner of the family. Therefore, they sought for compensation on account of the death of Wellesley Stephen Manohar.
5. In response to the claim petition, the respondent/Corporation appeared and filed its written statement denying that there was no negligence on the part of the driver of the bus and contended that the deceased had suddenly jumped the iron railings of high way and dashed against the mirror of the moving vehicle and as a result, he fell down and sustained injuries. That there was no negligence on the part of the driver of the bus and that the deceased himself was the cause for his death. Denying the other material averments in the claim petition, Corporation sought for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioners prove that, they are the legal heirs of the deceased Wellesley Stephen Manohar?
(ii) Whether the petitioners prove that, Wellesley Stephen Manohar was died on account of RTA took place near Five Star Petrol Bunk sub- road, on Hosur-Krishnigiri National Highwah road, Shanthinagar, due to rash and negligent driving of the driver of Bus bearing Reg.No.TN-30-N-0858 dated 02/04/2016 at about 9.50 p.m.?
(iii) Whether the petitioners are entitled for compensation? If so, how much and from whom payable?
(iv) What order or award?
7. In order to substantiate their case, appellant No.1 examined herself as PW.1 and produced thirty seven documents, which were marked as Exs.P-1 to P-37. On behalf of respondent/Corporation the driver of the bus K.Satheesh was examined as RW.1, but no document was produced on behalf of the respondent. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue No.3 partly in the affirmative and awarded compensation of Rs.62,29,200/- with interest at the rate of 8% per annum from the date of claim petition till realization and also concluded that the driver of the bus was wholly negligent in causing the accident and consequent death of Wellesley Stephen Manohar and directed the respondent/Corporation to satisfy the award. Contending that the Tribunal was not right in apportioning the entire negligence on the part of the driver of the bus belonging to the Corporation and that the award of compensation to the claimants was exorbitant and excessive, the Corporation has filed MFA.No.2657/2018, while the claimants had sought for enhancement of compensation by filing MFA.No.5569/2018 by contending that the Tribunal has awarded a meager amount of compensation. In the circumstances, both the appeals have been connected together and they are heard and disposed of by this Common judgment.
8. We have heard learned counsel for the appellant/Corporation and learned counsel for the claimants and perused the material on record as well as the original record.
9. Learned counsel for appellant/Corporation has made a twofold submission: firstly, he contended that the Tribunal was not right in holding that the driver of the bus belonging to the Corporation was wholly negligent in causing the accident. He drew our attention to Exs.P-3 and P-4 being spot sketch and spot mahazar and contended that a perusal of the same would reveal that the deceased crossed the railing on the sub-road and came in the way of the bus, which was proceeding on the left side of the sub-road from Krishnagiri side towards bus stand at Hosur. The entire negligence was on the deceased himself, but the Tribunal’s decision was contrary to the said fact. He contended that the question of negligence must be reversed and held that the entire negligence was on the deceased and the claim petition ought to have been dismissed. Alternatively, he contended that if this Court is to hold that there was negligence on the part of the driver of the bus, then it must be held that there was contributory negligence on the part of the deceased also and accordingly apportion the negligence and consequently, the compensation to be awarded in these matters.
10. He next contended that the award of compensation of Rs.62,29,200/- that too with interest at 8% per annum is on the higher side, excessive and exorbitant. He submitted that the trial Court has not properly appreciated the documents Exs.P-8 to 10, which have been produced by the claimants with regard to earnings and income of the deceased. He contended that the amount paid by the employer of the deceased towards conveyance allowance could not have been taken into consideration. That the net salary had to be arrived at by excluding that amount and also professional tax and income tax. Consequently, the compensation on the head of loss of dependency would be less. He further submitted that if this Court is to re-assess the compensation, then it may be awarded with interest at 6% per annum only and not 8% per annum as awarded by the Tribunal. Learned counsel for the Corporation also contended that the appeal filed by the Corporation may be allowed and the claim petition filed by the claimants may be dismissed or alternatively, reduce the quantum of compensation that may be awarded.
11. Per contra, learned counsel for the claimants contended that the Tribunal has rightly found that the entire negligence was on the part of the driver of the bus. That the bus was proceeding on the sub-road and not on a national highway. The bus ought to have proceeded in a slow and cautious manner as the object and purpose of providing sub-road is to enable pedestrians and vehicles to cross the national highway from the sub-road or to approach the national highway from the sub-road and to cross to the other side. That there cannot be any speed in the driving of the vehicle on the sub-road. He contended that the driver of the bus was driving it in a rash and negligent manner and with high speed and did not notice the deceased and dashed against him, which consequently resulted in death. That nothing has been elicited in the cross-examination of PW.1 vis-à-vis the claim of the Corporation that the deceased was wholly negligent in causing the accident. He further contended that in the absence of there being any contrary evidence as such produced by RW.1, the Tribunal has rightly answered issue No.2 in favour of the claimants and that the said finding would not call for any interference in this appeal.
12. Learned counsel for the claimants next contended that the award of compensation by the Tribunal is on the lower side. That the assessment of the monthly income of the deceased at Rs.57,732/- is meager. The Tribunal has not properly taken into consideration the compensation payable to the deceased on various heads. Further, there is no enhancement towards future prospects as per the dictum of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & others [(2017)16 SCC 680] (Pranay Sethi). That 30% of the salary must be added towards future prospects. He further contended that the award of compensation on the other conventional heads is also on the lower side. That the compensation may be re- assessed having regard to the oral and documentary evidence produced by the claimants to prove the income of the deceased who was working as a Manager in BGS Hospital and accordingly, allow the appeal filed by the claimants and dismiss the appeal filed by the Corporaion.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the Tribunal was right in holding that the driver of the bus belonging to the Corporation was negligent in causing the accident resulting in grievous injuries being sustained by Wellesley Stephen Manohar and causing his death?
(ii) Whether the claimants are entitled to enhanced compensation?
(iii) What order?
14. The fact that on 02/04/2016, at about 9.50p.m. Wellesley Stephen Manohar was crossing the sub-road from south to north on Krishnagiri to Hosur national highway road, when he was hit by the bus bearing No.TN-30-N-0858 resulting in grievous injuries and consequently death at Government Hospital has been established. The first controversy however is with regard to the aspect of negligence. In this regard, the contention of learned counsel for the Corporation is that the deceased himself was negligent in hitting the bus and died as a result of the impact. Alternatively, it is contended that even if there was some negligence on the part of the driver, the deceased has also contributed to the negligence by coming in the way of the bus. Therefore, it is contended by learned counsel for the Corporation that the finding given by the Tribunal on issue No.2 must be reversed or modified and accordingly, the quantum of compensation would have to be reduced and consequently, the claim petition would have to be dismissed and alternatively, the compensation must be reduced. Per contra, learned counsel for the claimants has supported the finding of the Tribunal on the aspect of negligence.
15. In this regard, we have perused the original record and we find that FIR was registered against the driver of the bus in Cr.No.229/2016. Complainant is a relative of the deceased. Exs.P-3 and P-4 are the spot sketch and spot mahazar and Ex.P-4(a) is the translated copy of spot mahazar. Ex.P-5 is the charge sheet. Ex.P- 5(a) is the translated copy of charge sheet.
16. On perusal of the said documents, particularly Exs.P-3 andP-4, we find that the bus was proceeding on the sub-road from Krishnagiri side towards the bus stop at Hosur and the deceased Wellesley Stephen Manohar was getting on to the sub-road from the national highway. The driver of the bus ought to have proceeded cautiously on the sub-road as the object and purpose of the sub-road are multiple. The vehicles could move on the sub-road to approach the national highway or conversely the vehicles from the national highway get on to the sub-road to proceed in other directions. Further, vehicles moving on the sub-road from the adjoining areas may be villages or other areas, could approach the national highway and move on to the other side. In the same way pedestrians would be moving from national highway to sub-road or the other side in order to approach towards their destinations away from the national highway or to approach the national highway from various other adjoining areas from the sub-road. Hence, a duty is cast on the drivers of vehicles plying on the sub-road to proceed slowly and cautiously and not in a speed as they would on the national highway. Since the accident has occurred on the national highway while crossing the sub-road and the bus has hit the pedestrian that too at 9.50 p.m. without observing as to who were the pedestrian/s including the deceased Wellesley Stephen Manohar proceeding on the sub-road, in the instant case, it must be held that the entire negligence was on the driver of the bus belonging to the Corporation, but merely because Wellesley Stephen Manohar jumped the railing to get on to the national highway from the sub-road, it cannot be held to be a negligent act on his part. The fact remains that the vehicles on the sub-road must move slowly and cautiously and not as if it is moving on the national highway in a speeding manner. Therefore, the finding of the Tribunal on issue No.2 is just and proper and we do not think that the said finding would call for any reversal or modification in these appeals. Consequently, point No.1 is answered against the appellant/Corporation.
17. This takes us to the next point which is with regard to the quantum of compensation awarded by the Tribunal. Both the Corporation as well as the claimants have their respective grievances with regard to quantum of compensation awarded by the Tribunal, which we have narrated in detail and which would not call for a reiteration.
18. Exs.P-6 to P-10 have been produced by the claimants to prove the income of the deceased who was working as a Manager in BGS Hospital. Ex.P-6 which is dated 24/10/2011, is the offer letter of BGS Hospital so as to appoint the deceased as a Manager in the department of Medical records at BGS Global Hospitals, Bangalore – 60. As per annexure to the said letter, the gross salary is shown as Rs.60,764/- and annual salary of Rs.7,29,168/- excluding provident fund and medical insurance premium. There was annual performance and salary review with effect from 01/04/2015. The annual salary of the deceased was revised to Rs.7,54,940/- vide Ex.P-7 and Ex.P-8 contains salary slips for the months of November 2015, December 2015 and January 2016. Ex.P-9 is Form No.16 extract and other annexures to Form No.16. The accident occurred on 02/04/2016. In the circumstances, we have considered the pay slip of January 2016. We find that the gross salary was Rs.60,764/- and a sum of Rs.20/- was deducted towards welfare fund, Rs.650.06 towards income tax and Rs.200/- towards professional tax. The total deduction was Rs.870.06 and the net salary was Rs.59,894/-. However, we have considered the gross salary at Rs.60,764/- per month and annual gross salary at Rs.7,29,168/-. A sum of Rs.2,400/- is deducted towards professional tax and a sum of Rs.72,676/- is deducted towards the income tax of the deceased at the rate of 10% per annum. The resultant amount is Rs.6,54,091/-. 25% of the said amount is added towards future prospects having regard to the dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others [(2017)16 SCC 680] as the deceased was working in a private establishment. Thus, it would be Rs.1,63,522/- and the total would be Rs.8,17,613/-. Since there are two claimants, 1/3rd of the compensation amount is deducted towards personal expenses of the deceased having regard to the judgment of Hon’ble Supreme Court in Sarala Verma vs. Delhi Transport Corporation [(2009)6 SCC 121]. The resultant amount is Rs.5,45,075/-, which is to be multiplied by the appropriate multiplier of 13 as the deceased was aged 48 years. Consequently, the compensation on the head of loss of dependency would be Rs.70,85,985/- instead of Rs.60,04,128/- awarded by the Tribunal.
19. In addition, a sum of Rs.40,000/- is awarded towards loss of spousal consortium to the widow of the deceased, a sum of Rs.30,000/- towards parental consortium to the minor son of the deceased, a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- towards funeral expenses. Consequently, the total compensation is Rs.71,85,985/- instead of Rs.62,29,200/- which has been awarded by the Tribunal.
20. We find considerable force in the submission of learned counsel for the Corporation that the award of interest at the rate of 8% per annum is on the higher side as normally this Court as well as the lower Court would award interest at the rate of 6% per annum. Therefore, the compensation now assessed is Rs.71,85,985/-, which shall carry interest at the rate of 6% per annum instead of 8% per annum as awarded by the Tribunal from the date of claim petition till realization.
21. The Tribunal has awarded total compensation at Rs.62,29,200/- with interest at 8% per annum on the following heads:
Towards loss of dependency : Rs.60,04,128/-
Towards funeral expenses & transportation : Rs. 25,000/-
Towards loss of love & affection : Rs. 1,00,000/- Towards loss of consortium : Rs. 1,00,000/-
Total : Rs.62,29,128/- Rounded off : Rs.62,29,200/-
=========== 22. In the result, the appeal filed by the Corporation is dismissed. The amount in deposit to be transmitted to the concerned Tribunal. The appeal filed by the claimant is allowed in part.
23. The Corporation to deposit the compensation amount before the concerned Tribunal within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs. Registry to send the original records to the Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*