Chennamma and Others vs The Managing Director, KSRTC

N.K. Patil, J.—These two appeals respectively by the claimants and by the Corporation are directed against the same impugned judgment and award dated 10/12/2013, passed in MVC No. 358/2012, by the I Additional District Judge and Member, Motor Accident Claims Tribunal, Chickmagalur, (for short ''Tribunal'').

The Tribunal by its judgment and award, has awarded a sum of Rs. 8,96,000/- under different heads with interest at 6% per annum from the date of petition till its realization, fixing negligence at 20% on the part of the deceased, rider of motor cycle bearing Reg. No. KA.18.R.1803 and 80% on the part of the driver of KSRTC bus bearing Reg. No. KA.18.F.0050 and directing the Corporation to pay a sum of Rs. 7,16,800/- with interest at 6% p.a. from the date of petition till the date of realization as against the claim of the claimants for a sum of Rs. 30/- lakhs on account of the death of Sri. Bapugowda.

It is the case of the claimants that, the quantum of compensation and the rate of interest awarded by the Tribunal is inadequate and it requires to be enhanced and that 20% negligence fixed on the part of the deceased, rider of motor cycle is not sustainable and is liable to be set aside by fixing entire negligence on the part of the driver of KSRTC bus. Whereas, it is the case of the Corporation that, 20% negligence fixed by the Tribunal on the part of the deceased is on the lower side and it is liable to be modified by refixing negligence in the ratio of 50% each, i.e. 50% on the part of the deceased, rider of the motor cycle and 50% on the part of the driver of the driver of the KSRTC bus belonging to the Corporation.

In brief, the facts of the case are:

The claimants are the wife, mother, brother and minor son of the deceased. On account of the death of the deceased in the road traffic accident, claimants have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the Corporation, contending that, on 16.10.2011 at 6.00 p.m. when the deceased was proceeding on a motor cycle bearing Reg. No. KA.18.R.1803 along with his friend and when they came near Kelagoor village, Chikmagalur taluk, at that time, the driver of KSRTC bus bearing Reg. No. KA.18.F.0050 came in a rash and negligent manner and dashed to the motorcycle of the deceased. Due to which, deceased sustained fatal injuries and died at the spot.

It is the further case of the claimants that, deceased was aged about 28 years, hale and healthy prior to the accident, he used to supply the labourers and nursery plants to the Coffee estate and used to earn Rs. 10,000/- per month and contributing his entire earnings to the welfare of the family. Due to his untimely death, claimants have suffered loss of dependency, love and affection, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence, has allowed the claim petition in part as referred above.

Being aggrieved by the said judgment and award, claimants and the Corporation have presented these appeals seeking appropriate reliefs as stated supra.

We have heard the learned counsel appearing for the claimants and the learned counsel appearing for Corporation.

The submission of learned counsel Sri. M. Ravindranath, for Sri. Dayanand S. Patil, appearing for claimants is that, the Tribunal has erred in fixing 20% negligence on the part of the deceased, rider of the motor cycle, the same cannot be sustained and is liable to be set aside by fixing entire negligence on the part of the driver of the bus belonging to the Corporation. To substantiate the said submission, he has submitted that the Tribunal has failed to appreciate the contents of IMV report and mahazar and that the police authorities after due investigation have filed charge sheet against the driver of the bus while fixing contributory negligence at 20% on the part of the deceased, rider of the motor cycle. Therefore, he submitted that the impugned judgment and award passed by the Tribunal fixing 20% negligence on the part of the deceased, rider of the motor cycle is liable to be set aside, fixing entire negligence on the part of the driver of the bus and directing the Corporation of the bus to indemnify the award amount.

Further, learned counsel appearing for claimants submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and conventional heads and what is awarded is inadequate and requires to be enhanced reasonably. To substantiate the said submission, he submitted that the claimants are the wife, mother, brother and minor son of the deceased and on account of the untimely death of the deceased they have suffered lot of mental shock and agony and his death has affected the social and economic condition of the family, as they have lost their earning member. Further, he submits that, the income of the deceased assessed by the Tribunal at Rs. 6,000/- per month is on the lower side and is liable to be enhanced reasonably, on the ground that, deceased was aged about 28 years, he used to supply the labourers and nursery plants to the Coffee estate and earning Rs. 10,000/- per month and the accident is of the year 2011. Therefore, he submitted that, the income of the deceased may be re-assessed reasonably, after deducting 1/4th towards personal and living expenses of the deceased and applying proper multiplier taking the age of the deceased, reasonable compensation may be awarded towards loss of dependency. Further, he submits that the compensation awarded towards conventional heads and the rate of interest is on the lower side and is liable to be enhanced reasonably in the light of the judgment of the Apex Court and this Court. Therefore, he submitted that the impugned judgment and award is liable to be modified by fixing entire negligence on the part of the driver of the bus belonging to the Corporation and by enhancing the compensation and the rate of interest reasonably.

Per contra, learned counsel Sri. F.S. Dabali. appearing for the Corporation, inter-alia, submitted that, the compensation awarded by the Tribunal towards loss of dependency and towards conventional heads is just and reasonable and therefore, it does not call for interference.

Further, he has submitted that, the Tribunal has erred in fixing only 20% negligence on the part of the deceased, rider of the motor cycle contrary to the evidence on record and it has failed to consider the nature of injuries caused to the vehicles as per Ex.P4 and it is crystal clear from the copy of rough sketch that there is substantial negligence on the part of the deceased, rider of the motorcycle and therefore, the Tribunal ought to have fixed 50% negligence on the part of the deceased, rider of the motor cycle and 50% on the part of the driver of the bus. Therefore, he submitted that the direction issued to the Corporation to indemnify 80% of the award amount cannot be sustained and is liable to be set aside and the negligence is to be fixed in the ratio of 50:50 i.e. 50% on the part of the deceased, rider of the motor cycle and 50% on the part of the driver of the bus belonging to the Corporation.

After hearing the learned counsel for the parties, after going through the grounds urged in the memorandum of appeal by both the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:

(i) Whether the Tribunal has justified in fixing negligence in the ratio of 20:80 i.e. 20% on the part of the deceased, rider of the Motor cycle and 80% on the part of the driver of KSRTC Bus or does it call for interference?

(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

Re.Point No. 1:

The occurrence of the accident and the death of the deceased are not in dispute. It is also not in dispute that two vehicles were involved in the accident viz., motor cycle bearing reg. No. KA.18.R.1803 and the KSRTC bus bearing Reg. No. KA.18.F.0050.

It is the case of the learned counsel appearing for claimants that, due to rash and negligent driving by the driver of the bus, the said accident had occurred and the Police authorities after due investigation have filed chargesheet against the driver of the bus as per Ex.P7 and it is the case of the Corporation that, accident had caused on account of negligence on the part of the deceased, rider of the motor cycle and that the Tribunal has erred in fixing only 20% negligence on the part of the deceased and therefore, it is liable to be set aside by fixing negligence in the ratio of 50% each.

The Tribunal, after careful perusal of the evidence on record and the nature of damages caused to both the vehicles as per IMV report and Exs.D1-CD, Ex.D2 to 5 photographs, has observed that, when the bus was proceeding on the left side of the road, the accident took place and the nature of damages caused to the motor cycle and the contents of mahazar and complaint which was filed by the pillion rider prove that due to rash and negligent driving by the driver of the bus the accident has caused and nothing has been elicited in the cross examination by the Corporation and considering the scene found in Ex.D2 to D5 has recorded the finding of fact in para-11 of its judgment holding that it is necessary to fix the liability on the part of the deceased to an extent of 20% and on the part of the driver of the bus to an extent of 80% because due to some negligence of the deceased, accident might have taken place and accordingly fixed negligence in the ratio of 20:80. The reasoning given by the Tribunal for fixing negligence in the ratio of 20:80 is just and reasonable and we do not find any error or irregularity in the same, nor we find any substance in the grounds urged by the Corporation that there is 50% contributory negligence on the part of the deceased, rider of the motor cycle. Therefore, we are of the considered view that the Tribunal has justified in recording the finding of fact for fixing negligence in 20:80 and it does not call for interference.

Re.Point No. 2:

The claimants are the wife, mother, brother and minor son of the deceased and they have filed a claim petition under Section 166 of M.V. Act claiming compensation before the Tribunal. It is the case of the claimants that, deceased was aged about 28 years, he used to supply labourers and nursery plants to the coffee estate hale and healthy prior to the accident and the only earning member in the family and his family was completely depending on his income. On account of his untimely death, wife has lost her companion, minor son is deprived of the love and affection, guidance and security of his father, mother and brother have suffered mental agony and his death has affected the social and financial condition of the family. The Tribunal, has assessed the income of the deceased at Rs. 6,000/- per month which is on the lower side and is liable to be re-assessed reasonably. It is the case of the claimants that, deceased was earning Rs. 10,000/- per month, but they have not produced any documentary evidence to prove the same. Having regard to the age and occupation of the deceased and the year of accident, we re-assess his income at Rs. 8,000/- per month. Out of which, if 1/3rd ( Rs. 2,666/-) is deducted towards the personal expenses of the deceased, as rightly done by the Tribunal, his net contribution to the family per month comes to Rs. 5,334/- and by accepting the multiplier of ''17'' adopted by the Tribunal since the deceased was aged about 28 years as just and proper, we re-determine the loss of dependency at Rs. 10,88,136/- ( Rs. 5,334/- x 12 x 17) instead of Rs. 8,16,000/- awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case as referred above and in the light of the judgment of the Apex Court and this Court, we award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 75,000/- towards loss of love and affection and the rate of Rs. 25,000/- each to the claimant Nos. 1 to 3 Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses instead of Rs. 30,000/- awarded by the Tribunal.

However, a sum of Rs. 10,000/- awarded by the Tribunal towards damages caused to the vehicle is just and proper and therefore, it does not call for interference. In all, the claimants are entitled to the total compensation of Rs. 13,23,136/- instead of Rs. 8,96,000/- awarded by the Tribunal. Out of Rs. 13,23,136/-, if 20% ( Rs. 2,64,627/-) is deducted towards contributory negligence on the part of the deceased, rider of the motorcycle, the remaining compensation comes to Rs. 10,58,508/-.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

Thus, there would be an enhancement of Rs. 3,41,708/- ( Rs. 10,58,508/- - Rs. 7,16,800/-) with interest at 9% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the claimants is allowed in part and the appeal filed by the Corporation is dismissed as devoid of merits.

The impugned judgment and award dated 10/12/2013, passed in MVC No. 358/2012, by the I Additional District Judge and Member, Motor Accident Claims Tribunal, Chickmagalur, is hereby modified, by awarding a sum of Rs. 3,41,708/- with interest at 9% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The Corporation is directed to deposit the enhanced compensation of Rs. 3,41,708/- with interest at 9% p.a., from the date of petition till its realization, within three weeks from the date of receipt of the copy of this judgment.

Immediately on such deposit by the Corporation, out of the enhanced compensation of Rs. 3,41,708/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the claimant No. 1, wife of the deceased in any Nationalized or Scheduled or Grameena bank, for a period of 15 years and renewable by another 15 years, with liberty reserved to the claimant No. 1 to withdraw the interest accrued on it, periodically.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the claimant No. 4, minor son of the deceased in any Nationalized or Scheduled or Grameena bank, till he attains 30 years, with liberty reserved to the claimant No. 1 to withdraw the interest accrued on it, till he attains 21 years for the welfare of claimant No. 4 and from 22 years to 30 years, he is at liberty to withdraw the interest accrued on it, periodically.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the claimant No. 2, in any Nationalized or Scheduled or Grameena bank, for a period of 05 years and renewable by another 05 years, with liberty reserved to the claimant No. 2 to withdraw the interest accrued on it, periodically.

Remaining sum of Rs. 41,708/- with proportionate interest shall be released in favour of the claimant Nos. 1 and 2 in equal proportion immediately.

The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal forthwith.

Draw the award, accordingly.

In view of disposal of main matters, the relief sought by the Corporation in I.A. No. 1/2014 in M.F.A. No. 1495/2014 does not survive for consideration. Hence, it is disposed of as having become infructuous.

Learned counsel Sri. Dayanand S. Patil, is permitted to file vakalath for claimants in M.F.A. No. 1495/2014 within four weeks from today.