IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV M.F.A. No.6363/2016 (MV) C/W M.F.A. No.7113/2016 (MV) M.F.A. No.6363/2016:
Between:
The Managing Director, K.S.R.T.C., Shanthinagar, Bangalore – 560 027. ... Appellant (By Sri. D. Vijaya Kumar, Advocate) And:
1. Sri. Kempanna, S/o Papanna, Aged about 41 years.
2. Smt. Manjamma, W/o Kempanna, Aged about 36 years.
3. Mahesh K., S/o Kempanna, Aged about 20 years.
4. Kumari Mala K., D/o Kempanna, Aged about 17 years.
All are R/at:
Sanganahalli, Bangarpet Taluk, Kolar District – 563 101.
Since Respondent No.4 is minor, Rep. by her Father and natural Guardian Respondent No.1, Sri. Kempanna. … Respondents (By Sri. A. Sreenivasaiah., Advocate for C/R1-R3) This M.F.A. is filed under Section 173(1) of Motor Vehicles Act, 1988, against the judgment and award dated 17.06.2016 passed in MVC No.2075/2015 on the file of the XXII Additional Small Causes Judge, XX A.C.M.M., Member, MACT, Bengaluru (SCCH No.24), awarding a compensation of Rs.12,55,000/- with interest @ 6% p.a. from the date of petition till deposit.
M.F.A. No.7113/2016:
Between:
1. Kempanna, S/o Papanna, Aged about 41 years.
2. Manjamma, W/o Kempanna, Aged about 36 years.
3. Mahesh K., S/o Kempanna, Aged about 20 years.
4. Kumari Mala K., D/o Kempanna, Aged about 17 years.
All are residing at:
Sanganahalli, Bangarpet Taluk, Kolar District.
Since the 4th appellant is minor, Represented by her Father, Appellant No.1 as natural Guardian. … Appellants (By Sri A. Sreenivasaiah, Advocate) AND:
The Managing Director, K.S.R.T.C., Shanthi Nagar, Bangalore – 560 027. ... Respondent (By Sri. D. Vijaya Kumar, Advocate) ***** This M.F.A. is filed under Section 173(1) of Motor Vehicles Act, 1988, against the judgment and award dated 17.06.2016 passed in MVC No.2075/2015 on the file of the XXII Additional Small Causes Judge, XX A.C.M.M., Member, MACT, Bengaluru (SCCH No.24), partly allowing the claim petition for compensation and seeking enhancement of compensation.
These M.F.As. having been heard and reserved on 02.11.2018 and coming on for pronouncement of judgment, this day, the Court delivered the following:
J U D G M E N T The Karnataka State Road Transport Corporation is in appeal in M.F.A.No.6363/2016 challenging the judgment and award passed in M.V.C.No.2075/2015 whereby the claim petition has come to be allowed granting compensation to the claimants. The other appeal M.F.A.No.7113/2016 has been filed by the claimants, aggrieved by the judgment and award as regards its quantum and seek for an enhancement of compensation.
2. The parties are referred to by their ranks before the Trial Court.
3. The facts that are made out in the claim petition filed under Section 166 of the Motor Vehicles Act is that the claimants are the father, mother and brother of deceased Maresha.K. It is stated that on 30.4.2015, at about 5.30 p.m. when the deceased was proceeding as a pillion rider on a motor cycle bearing registration No.KA-08-K-3498 and when it had reached near Aniganahalli Gate in Bangarpet - Kolar Main Road, bus belonging to the Karnataka State Road Transport Corporation (for short ‘KSRTC’) allegedly being driven in a rash and negligent manner proceeding at high speed collided with the Motor Cycle. In the said accident the deceased Maresha, who suffered grievous injuries died on the spot and the claimants have sought for compensation and had lodged a claim.
4. The claimants state that deceased Maresha was earning an income of Rs.20,000/- per month by doing catering business and it was contended that claimants were depending on the income of the deceased for their livelihood.
5. It is not disputed that the complaint was lodged by the jurisdictional police against the driver of the KSRTC bus and a charge sheet has also been filed against the said driver. The Corporation upon notice of the petition, has filed its statement of objections against the claim petition and had contended that the accident was due to rash and negligent driving of the rider of the motor cycle in which the deceased was traveling as a pillion rider. It is stated that the driver of the bus took all precautions to avoid a head on collision and had moved the bus to the extreme left side of the road. Despite such precautions taken, it is stated that the motor cycle being driven in a rash and negligent manner coming from the opposite side, came to the extreme right side of the road and collided with the bus.
6. It was also contended that the claimants had colluded with the owner of the motor cycle seeking to fasten liability only on the bus of the respondent – Corporation.
7. Upon pleadings being filed, the Tribunal has framed an issue as to whether the petitioners/claimants could prove that the accident had occurred due to the rash and negligent driving of the KSRTC bus resulting in fatal injuries to the deceased.
8. After evidence on both the sides, the Tribunal has found in the affirmative as regards the negligence of the driver of the KSRTC bus as being the cause of the accident.
9. The Tribunal has noticed that the filing of the charge sheet against the driver of the KSRTC bus. Taking note of the fact that the driver of the KSRTC bus has himself not filed any complaint and though has stated that he had attempted to lodge a police complaint and that the police did not accept such complaint. Having failed to provide acceptable evidence as regards his statement that he had informed the higher up officers regarding the non-registering of his complaint, the contention that it was the rider of the motor cycle, who was riding the bike rashly and negligently and complaint was sought to be filed in that regard came to be rejected.
10. The Tribunal also observes that no material is produced to show that the accident had occurred due to the negligence on the part of the rider of the motor cycle and that no steps had been taken by the respondent - Corporation to challenge the charge sheet submitted against the driver before the appropriate Court. The Tribunal also notes that nothing has emerged from the cross-examination so as to support the case as regards the negligence of the rider of the motor cycle and accordingly concludes that the accident was as a result of the negligent act of the driver of the KSRTC bus on the basis of material on record.
11. The Corporation while assailing the award has contended that the accident was as a result of rash and negligent riding of the motor cycle. Though the driver of the bus to avoid collision, had taken the bus to the extreme left side and had stopped on the left side of the mud road, the motor cycle had collided with the front portion of the bus. It is further contended that the complainant was not an eye witness and his version cannot be accepted, and in fact the Court should have taken note of contributory negligence of the rider of the motor cycle.
12. As regards the quantum, the appellant has contended that the notional income taken was inaccurate, the multiplier adopted was wrong and that the grant of future prospects was impermissible.
13. The claimants in their appeal have sought for enhancement of compensation and contend that the income taken at Rs.7,500/- per month was inadequate and had sought for enhancement of compensation under the conventional heads.
14. Heard both the counsel as regards the contentions raised in both the appeals.
15. The points that arise for consideration are as follows:
(a) Whether the Corporation has made out a case for interference on grounds urged?
(b) Whether the claimants have made out a case for enhancement of compensation?
Re. Point No.1:
16. As regards the contention in the appeal by the Corporation that the present claim petition is bad in law as the owner and insurer of the motor cycle have not been arrayed as a party which is fatal to the claim petition, it ought to be noted that even if the Tribunal were to hold that joint tortfeasors were involved, the question is no longer res integra. The Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and others reported in (2015) 9 SCC 273, has held that it is not necessary to implead all joint tortfeasors in a claim in so far as the liability of each and every joint tortfeasor vis-à-vis the claim being joint and several. Hence, noticing that the Tribunal has not accepted the contention of the Corporation to hold that the riders of the Motorcycle had also contributed to the occurrence of the Accident, the question that has been raised as regards non-impleadment of the insurer and the owner of the motor cycle is liable to be rejected.
17. The Corporation has taken the specific stand that the accident was a result of the rash and negligent driving of the motorcyclist and that in fact, the driver of the bus moved to the extreme left of the road to avoid a collision and despite such precaution, the motor cycle collided with the bus. It is settled law that the burden of proving negligence rests on the person asserting such claim. In the present case, the evidence that has been let in to support the assertion of the Corporation is only of the driver-RW1. No other independent evidence, has been led to support such assertion as referred to above.
18. In fact, there is no sketch that has been produced along with the records relating to the police investigation so as to recreate the spot of accident and hence oral submissions regarding the aspect of negligence on behalf of the rider of the motor cycle are untenable.
19. In fact, though the reliance has been placed on the mahazar and other arguments are advanced as regards the actual aspect, in the absence of examining the witnesses to the mahazar and in the absence of any other evidence, the contention raised by the Corporation as regards the negligence of the rider of the motor cycle cannot be accepted.
20. The finding of the Tribunal as regards this aspect requires no interference. The Tribunal has rightly held that no evidence is forthcoming as regards the assertion that efforts had been made by the driver to lodge a complaint against the rider of the motorcycle. Though the driver had asserted that he had informed his superior officers as regards the Police authorities not accepting his complaint, however, no evidence of any other official of the Corporation has been let in to substantiate the said contention. It is also relevant to notice as observed by the Tribunal that the filing of the charge-sheet against the driver of the bus has not been objected to or challenged in a manner provided for under the law. In fact, nothing prevented the Corporation from filing an independent complaint against the rider of the motor cycle to demonstrate the bona-fides of the driver of the bus. It is also to be noted that in the absence of any issue being framed as regards contributory negligence on the part of the rider of the motor cycle, no finding could be recorded as regards that aspect.
Re. Point No.2:
21. As regards the question of quantum, the claimants contend that the Tribunal has grossly erred in taking the notional income at Rs.7,500/- per month. The accident is of the year of 2015 and the notional income to be taken when there is no proof of income as per the Lok Adalath guidelines is Rs.8,500/- to Rs.9,000/- per month. Taking judicial note of the earning capacity of the deceased who is said to be a cook and also doing catering, it could meet the ends of justice if the income is taken at Rs.8,500/- per month.
22. As the deceased did not have a permanent job, he could be considered as self-employed and the future prospects that could be awarded would be 40% of his income, in terms of the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi & Others reported in AIR 2017 SC 5157. Further the claimant would be entitled to compensation under conventional heads for a sum of Rs.30,000/- as against that which has been awarded by the Tribunal.
23. Even though the income to be taken is notional income, future prospects could still be taken note of as has been held in the case of Hem Raj Vs. Oriental Insurance Co. Ltd. And others reported in 2018 ACJ 5.
24. Accordingly, the compensation is re-worked as follows by accepting the other calculation that has been made by the Tribunal taking note of deduction and appropriate multiplier of ‘18’:
(a) Income:
(i) Rs.8,500/-x 40%(Future prospects) = Rs.11,900/-
(ii) Less deduction of 50% as deceased was a Bachelor = Rs. 5,950/-
(b) Loss of dependency would be Rs.5,950/- x 12 x 18 = Rs.12,85,200/-
(c) Compensation under conventional heads would be Rs. 30,000/-
Hence, the total compensation would be:-
(1) Loss of dependency = Rs.12,85,200/-
(2) Compensation under conventional heads = Rs. 30,000/- Total Compensation = Rs.13,15,200/-
The enhanced amount of Rs.60,200/- would be payable with interest at 6% per annum from the date of the petition till deposit.
As regards the enhanced amount, the apportionment would be in terms of the award and the enhanced amount would be payable on deposit, to the claimants.
The respondent – Corporation is directed to deposit the amount relating to the enhanced compensation before the Tribunal within 12 weeks from today.
The statutory deposit made by the respondent – Corporation before this Court in M.F.A.No.6363/2016 is ordered to be transferred to the Tribunal for disbursement to the claimants.
The appeals are disposed of in terms of the discussion as above.
Sd/- JUDGE RS/* ct-mhp