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Judgment
Dr. K. Bhakthavatsala, J.—Learned Counsel for the appellants submits that their son Karthik B. Shah, aged about 21 years was doing business and earning Rs. 10,000/- per month died in the motor accident that, occurred due to rash and negligent driving of the BMTC bus. Though the accident occurred solely due to the rash and negligent driving of the BMTC bus, the Tribunal erred in fixing the contributory negligence on the part of the deceased to the extent of 30%. Further the income of the deceased taken at Rs. 5,000/- is on the lower side and no compensation is awarded towards attendant conveyance expenses, though the deceased was treated in Mallige Medical Centre, Bangalore, from 17.02.2002 to 21.02.2002. Thereafter, the deceased was treated in Manipal Hospital from 21.02.2002 to 04.03.2002. He submits that the finding of the Tribunal in fixing the contributory negligence on the part of the deceased to the extent of 30% may be set aside and total contributory negligence may be fixed on the driver of the BMTC and the compensation is required to be enhanced. There is no representation for the respondents.
Learned counsel for the appellants further submit that the respondent filed an appeal in MFA No. 7254/2006, challenging the judgment and award dated 23.01.2006 in MVC No. 2591/2002 on the file of the VI Additional SCJ. Member, MACT, Court of Small Causes. Bangalore City and without notice to the claimants/appellants herein, at the stage of admission itself, the appeal filed by the respondent-BMTC was rejected on 12.10.2006. He submits that the finding recorded by the learned Single Judge in MFA No. 7254/2006 shall not come in the way of the appellants challenging the finding recorded by the Tribunal on the point of negligence and the quantum of compensation.
We have perused the L.C.R.
The claimants are father and mother of the deceased Karthik. They filed a claim petition against BMTC claiming compensation of Rs. 20,00,000/- towards the death of their son who died on 04.03.2002 due to the injuries sustained by him in the motor accident that occurred on 17.02.2002. In respect of case of the appellants/claimants, the father of the deceased got himself examined as P.W.1. P.W.2 is the eye witness and pillion rider of the motor cycle. They got marked Exhs.P1 to P18. No rebuttal evidence was adduced, in other words, the driver of the BMTC bus was not examined. The learned Single Judge in MFA No. 7254/2006 in para 10 of the judgment has made an observation and it is useful to refer to the same.
It is to be remembered that if the bus wanted to take a right turn, it ought to have come to the right side of the road. The said road is one way. He cannot take the bus to the extreme left side without noticing the persons who are travelling behind and right side of the bus and take a right turn suddenly at the Circle, thus, putting the other motorcyclist in danger. That is precisely what has happened. The sketch prepared at the spot on which reliance to placed by the Corporation clearly shows that the EMTC bus was on the left side of the road, the motorcyclist was on the right side of the road. It was a one way traffic. From the left side edge he took a right turn and the motorcyclist who was on the right side, hit the middle of the bus.
In view of the arguments addressed by the learned counsel for the appellants, we formulate two points for our consideration:
(i) Whether the Tribunal is justified in fixing the contributory negligence on the part of the deceased Karthik at 30%?
(ii) Whether the compensation awarded by the Tribunal is adequate?
Our answer to the above points is as per final order.
Point No. 1 : It is the case of the appellants/claimants that on 17.02.2002 at about 8.40 p.m., the deceased Karthik was driving Hero Honda vehicle bearing Regn.No.KA-02 EE 1380 along with P.W.2-Gowtham M. Shah and when they reached near A.Gs. Circle, the BMTC bus bearing Regn.No.KA 01 F 517 came in a rash and negligent manner from behind and without giving signal turned towards right side and dashed against the motor cycle. As a result of which the rider of the motor cycle fell down and sustained fatal injuries and the pillion rider also fell down and sustained grievous injuries. The claimant was admitted to Mallige Medical Centre on 17.02.2002 and treated as inpatient till 21.02.2002. Thereafter, he was shifted to Manipal Hospital and treated from 21.02.2002 till his death i.e., on 04.03.2002. The sketch of scene of crime/Ex.P5 shows that the width of the road was 38 feet. The motorcyclist was on the right side of the bus and when the bus took right turn, the motorcyclist hit the bus at the centre. Further, there is no material placed on record that it was one way road and under such circumstance, there was no need for the deceased to go on the extreme side of the road that too on the right side of the BMTC bus. Under such circumstances, the Tribunal is justified in fixing the contributory negligence on the deceased to an extent of 30%. We see no ground to interfere with the contributory negligence to the extent of 30% on the deceased. Accordingly, we answer the Point No. 1 for consideration.
Point No. 2: No doubt the appellants/claimants have net proved that the deceased was earning Rs. 10,000/- per month by doing business. Ex.P.17 shows that the deceased has an S.B. Account in Vysya Bank, Chickpet Branch, Bangalore, and the bank balance was Rs. 1,30,212/- . Ex.P.15 is the S.S.L.C. certificate. Thereafter, he studied P.U.C. in Seshadripuram Composite P.U. College in Bangalore. They have not produced certificate to show that he has passed P.U.C. or otherwise. Ex.P.16 is the certificate issued by the First Computers certifying that the deceased did Marketing Course from 04.08.1998 to 30.12.1998. Keeping in view his academic qualification and that the accident had occurred in the year 2002, even if he had worked as a Clerk, he could have easily earned a sum of Rs. 6000/- per month, whereas the Tribunal has fixed the income of the deceased at Rs. 5,000/- per month. Since the deceased died as a bachelor, the Tribunal is justified in deducting 50% of his income towards personal expenses. The Tribunal has awarded the compensation in favour of the claimants as under:
(i) Loss of dependency
Rs. 3,90,000-00
(ii) Loss of love affection
Rs. 10,000-00
(iii) Transportation and funeral expenses
Rs. 15,000-00
(iv) Loss of Estate
Rs. 10,000-00
(v) Medical Expenses
Rs. 2,60,000-00
Total
Rs. 6,85,000-00
Less: 30% contributory negligence
Rs. 2,05,500-00
Total amount
Rs.4,79,500-00
As per the memo of calculation, the claimants claim that they have spent a sum of Rs. 3,09,496,95, but the Tribunal has deducted a sum of Rs. 49,000/- as the amount paid towards the bills at Sl.Nos.27 and 28 amounting to Rs. 10,666/- and Rs. 38,353/- cannot be considered as bills as they have been written on the piece of paper and apart from that they are not signed by any one. Thus, the Tribunal has awarded a sum of at Rs. 2,60,496.95 ps. towards medical expenses. Keeping in view that the deceased was treated from 17.02.2002 to 04.03.2002, the Tribunal would have awarded the compensation towards conveyance, special diet, attendant and incidental expenses. In our view, it would meet the ends of justice if a sum of Rs. 10,000/- is awarded towards attendant, conveyance, special diet and incidental expenses. Since the mother of the deceased was 45 years, as per the ratio laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier 14 could be applied.
In our view, the claimants are entitled for compensation as under:
(i) Loss of dependency (Rs.3,000 x 12 x 14)
Rs. 5,04,000-00
(ii) Medical expenses
Rs. 2,60,000-00
(iii) Conveyance, special diet and incidental expenses
Rs. 10,000-00
(iv) Transportation and Funeral expenses
Rs. 10,000-00
Rs. 7,84,000-00
It is pertinent to mention that the Tribunal has awarded a sum of Rs. 10,000/- towards loss of estate. Since the deceased died as a bachelor and the claimants are the parents, the question of awarding loss of estate does not arise. Since the contributory negligence is fixed at 30% on the part of the deceased, if a sum of Rs. 2,38,200/- is deducted, the claimants are entitled for a sum of Rs. 5,55,800/- . Though the Tribunal has awarded interest at the rate of 7% p.a., insofar as the additional compensation is concerned, the appellants/claimants are entitled to the interest at the rate of 6% p.a. The Tribunal has already awarded a sum of Rs. 4,79,500/- . If the said amount is deducted, the balance will be Rs. 76,300/- . In the result, the Appeal is partly allowed, holding that the appellants/claimants are entitled for additional compensation of Rs. 76,300/- along with costs and interest at 6% per annum from the date of petition till realisation. However, it is made clear that the appellants/claimants are not entitled for interest on the enhanced compensation for delay of 300 days in filing the appeal. Accordingly, the impugned judgment and award are modified.
Respondent/BMTC is directed to deposit the additional compensation amount along with costs and interest with the Tribunal within three months from today.
The Tribunal is directed to release the additional compensation amount in favour of the appellants/claimants.