Divisional Manager vs N.V. Jayalakshmi

P.D. Waingankar, J.—Though these appeals are coming on for admission, with the consent of both the Counsel, they are taken up for final disposal.

Both these appeals under Section 173(1) of the Motor Vehicles Act are arising out of the judgment and award dated 06.05.2010 in MVC No. 127/2009 on the file of the Motor Accidents Claims Tribunal-II, Bellary.

The brief facts which gave rise to these appeals are as under:

On 04.06.2009 at about 11.30 am, the deceased Veerabhadra was riding a motorcycle bearing No. KA-25/R-6613 slowly and carefully on N.H. 63 Bellary-Hospet road. When the motorcycle reached near Thoranagallu Railway station, on account of rash and negligent driving of the KSRTC bus bearing No. KA-34/F-825, it dashed against the motorcycle and as a result, the rider of the motorcycle fell down and sustained grievous injuries. While undergoing treatment in the VIMS Hospital, Bellary, he succumbed to the injuries. The wife and minor children filed the claim petition under Section 166 of the Motor Vehicle Act. It was opposed by the KSRTC on the ground that the accident and the resultant death of Veerabhadra was due to the negligence of the deceased Veerabhadra himself.

The claim petition came up for consideration before the Tribunal. The Tribunal upon going through the materials placed on record and after hearing the learned counsel appearing for the parties, recorded a finding that the accident occurred on account of the negligence of the KSRTC bus driver as well as the deceased-the rider of the motorcycle to the extent of 70% and 30% respectively. The Tribunal on taking into consideration the income of the deceased as Rs. 3,000/- per month and applying the 15 multiplier, awarded a total compensation of Rs. 4,27,000/- with 6% interest from the date of petition till the date of realisation.

Being aggrieved by the 30% negligence attributed to the deceased Veerabhadra and also the quantum of compensation awarded by the Tribunal, the claimants preferred MFA No. 24850/2010, whereas the KSRTC also preferred MFA No. 22598/2011 aggrieved by 70% negligence attributed to the driver of the KSRTC bus.

I have heard both the learned Counsel appearing for the claimants and the KSRTC.

Upon hearing both the learned Counsel and upon consideration of the material on record, the following points would arise for my consideration:

i. Whether the finding recorded by the Tribunal that the accident occurred on account of 70% negligence on the part of the driver of the KSRTC bus and 30% negligence on the part of the deceased is just and proper?

ii. Whether the compensation awarded by the Tribunal is just and reasonable?

It is the case of the claimants that the accident and the resultant death of the deceased was purely due to the total negligence on the part of the driver of the KSRTC bus, whereas it is the case of the KSRTC that deceased himself contributed towards the said accident. In order to establish the negligence on the part of the driver of the KSRTC bus, the claimant examined one Mallikarjuna as PW2. He is none other than the person who lodged the complaint immediately after the accident. Ex. P1 is the complaint lodged by PW2, wherein he has stated that, on 04.06.2009 at about 11.30 am, the KSRTC bus No. KA-34/F-825 was proceeding from Bellary towards Hospet and the deceased Veerabhadra was coming on the motorcycle bearing No. KA-25/R-6613 from behind. He has further sated in the complaint that the driver of the bus which was proceeding ahead of the motorcycle gave the way for the rider of the motorcycle to overtake and proceed ahead, and while the rider of the motorcycle was overtaking the bus, suddenly the bus was taken to the right side and thereby the accident occurred on account of the negligence of the bus driver.

If we go through the cross-examination of the complainant who is examined as PW2, he has stated that, while the deceased was overtaking the bus, the left side handle of the motorcycle came in contact with the hind portion of the bus and as a result, the motorcyclist fell down. Thus, PW2 has given two versions, one version in his compliant and another version in his cross-examination before the Court. The very fact that the handle of the motorcycle came in contact with the hind portion of the bus itself speaks certain percentage of negligence on the part of the rider of the motorcycle also. Moreover, the KSRTC had also examined the driver of the bus as RW1, who in turn has spoken about the negligence on the part of the rider of the motorcycle.

Thus, the Tribunal upon closer scrutiny of the evidence placed on record by the claimant and the driver of the KSRTC bus has rightly came to the conclusion that the accident occurred on account of negligence on the part of the KSRTC bus driver as well as the deceased rider of the motorcycle to the extent of 70% and 30% respectively. Therefore, I do not find any reason to interference in the said finding recorded by the Tribunal on the issue of the negligence is concerned.

Coming to the determination of the compensation, the Tribunal has determined the compensation as Rs. 6,10,000/-- and awarded Rs. 4,27,000/- being 70% of the compensation determined.

It is seen from the records that the deceased was aged 35 years and therefore, the appropriate multiplier to be pressed into service is ''16''. Whereas the Tribunal has wrongly adopted the multiplier as ''15'' instead of ''16''. Insofar as the income of the deceased was concerned, though the claimants produced the salary certificate as per Ex. P6, the same has not been relied upon by the Tribunal. Except the salary certificate Ex. P6, no other supporting documents have been produced to show the income of the deceased, nor the author of the salary certificate was examined. In the absence of examination of the author of the salary certificate and non-production of supporting documents, the Tribunal is right in rejecting the salary certificate produced on behalf of the claimants. The Tribunal by taking the occupation of the deceased as a labour, taken the monthly income of the deceased as Rs. 3,000/- without any basis. The accident is of the year 2009. It is a fact that the deceased was maintaining his wife, three children and his mother with the income earned by him. Therefore, it goes without saying that he must have been earning the minimum income of Rs. 150/- per day. As such, I deem it just and proper on my part to take the monthly income of the deceased as Rs. 4,500/- as against Rs. 3,000/- taken by the Tribunal. The deceased was aged 35 years at the time of his death. 30% of his income will have to be added towards future prospects. In that case, the total monthly income comes to 5,850/-. If it is multiplied by 12, the annual income comes to Rs. 70,200/-. If it is multiplied by 16 multiplier, the loss of total income comes to Rs. 11,23,200/-. Since the claimants are five in numbers, 1/4 of the income has to be deducted towards the living the personal expenses of the deceased had he been alive. If 1/4 income is deducted, the net income comes to Rs. 8,42,400/- which is the compensation towards ''loss of dependency''. The Tribunal has rightly awarded an amount of Rs. 70,000/- under the conventional heads such as consortium, loss of estate, loss of love and affection, funeral expenses and transportation of dead body.

Thus, the total compensation for which the claimants are entitled is Rs. 9,12,400/- as against Rs. 6,10,000/- determined by the Tribunal. While answering the issue on negligence, it has been held that the deceased also contributed towards the accident to the extent of 30%. If 30% of the compensation amount determined is deducted from Rs. 9,12,400/- the net compensation for which the claimants are entitled comes to Rs. 6,38,680/-.

Accordingly, I pass the following order:

ORDER

(i) MFA No. 24850/2010 filed by the KSRTC is hereby dismissed.

(ii) MFA No. 22598/2011 filed by the claimants is partly allowed. The judgment and award dated 06.05.2010 passed in M.V.C. No. 127/2010 on the file MACT-II, Bellary stands modified.

(iii) The claimants are awarded an enhanced compensation of Rs. 2,11,680/- ( Rs. 6,38,680- Rs. 4,27,000) together with interest at the rate of 6% per annum from the date of claim petition till realisation from the respondents.

(iv) The KSRTC is directed to deposit the enhanced compensation amount together with interest within two months from the date of receipt of copy of this order.

(v) The amount in deposit shall be transmitted to the Tribunal.

(vi) In the event of deposit of enhanced compensation, the claimants No. 1 to 4 are entitled for Rs. 50,000/- each and claimant No. 5 for Rs. 11,680/- together with proportionate interest.

(vii) The amount awarded to the share of claimants No. 2, 3, 4 together with proportionate interest shall be deposited in fixed deposit in any nationalised bank for a period of two years, six years and ten years respectively.

(viii) The amount awarded to claimants No. 1 and 5 together with proportionate interest shall be released to them.

(ix) Send the records to the Tribunal forthwith.