Geetha and Others vs Lakkanna and Others

N.K. Patil, J.—This appeal by the appellants-claimants is directed against the impugned judgment and award dated 09/03/2012 passed in MVC No. 1034/2011, by the Presiding Officer, Fast Track Court-IV and Additional Motor Accident Claims Tribunal, Mysore, (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation.

The Tribunal, by its judgment and award, has awarded a sum of Rs. 3,66,733-35 paise under different heads after deducting 50% towards contributory negligence on the part of the rider of the motor bike, with interest at 6% per annum from the date of petition till the date of deposit, as against the claim Rs. 22,23,000/-, on account of the death of the deceased Sri Manchegowda, in the road traffic accident.

In brief, the facts of the case are:

The appellants are the wife, children and mother of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 09.4.2011, deceased along with his brother-in-law was going on the motor bike bearing Reg. No. KA.05.EF.4785 as a pillion rider from Muganahalli village towards Mysore side, at that time, the driver of KSRTC bus bearing Reg. No. KA.01.F.7942 came from backside on Malavalli-Mysore main road near Someshwara theatre from Malavalli side and hit the bike and caused the accident. Due to which, deceased sustained grievous injuries. Immediately, he was shifted to Mahadeswara Nursing Home, Mysore, thereafter, he was referred to Bangalore Hospital, on the way to Bangalore at 9.30 p.m. near Maddur, he succumbed to fatal injuries. It is the further case of the appellants that, deceased was aged about 38 years, hale and healthy prior to the accident, doing agriculture and rearing silk worms and earning Rs. 15,000/- per month and looking after the welfare of the family by contributing his entire earnings to the family.

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

Being dis-satisfied with the quantum of compensation, the rate of interest awarded and 50% contributory negligence fixed on the part of the rider of the motor bike by the Tribunal, the appellants have presented this appeal.

We have gone through the grounds urged by the appellants in the memorandum of appeal and heard the learned counsel appearing for Corporation.

It is the case of the appellants that, deceased was the only earning member in the family, he was aged about 38 years, agriculturist and also rearing silk worms and dependants are the wife, children and mother and accident has occurred on 9.4.2011 and the income assessed by the Tribunal at Rs. 5,000/- per month is on the lower side and is liable to be re-assessed reasonably as he was earning more than Rs. 15,000/- per month from his profession. Therefore, they prayed that income of the deceased may be re-assessed atleast at Rs. 6,000/- to 6,500/- per month, after deducting 1/4th and applying multiplier of ''15'', reasonable compensation may be awarded towards loss of dependency. Further, it is the case of the appellants that compensation awarded towards conventional heads and the rate of interest awarded by the Tribunal 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. It is further contended that, reasoning given by the Tribunal in paras 11 and 12 of the judgment for fixing 50% negligence on the part of the rider of the motor bike is contrary to the evidence available on record and therefore, it is liable to be set aside by fixing entire negligence on the part of the driver of the bus, on the ground that, he being the driver of a heavy vehicle, he ought to have stopped the bus and avoided the accident. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel appearing for the respondent Nos. 2 and 3 Corporation, inter-alia, contended and substantiated that, the Tribunal, after due appreciation of the oral and documentary evidence available on file, has justified in fixing 50% negligence on the part of the rider of the motor bike and also in awarding reasonable compensation on account of the death of the deceased and therefore, it does not call for interference.

After going through the grounds urged by the appellants in the memorandum of appeal, after hearing learned counsel appearing for respondent Nos. 2 and 3 and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

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

The occurrence of the accident and the resultant death of the deceased are not in dispute. It is case of the appellants that deceased was aged about 38 years, hale and healthy prior to the accident, Agriculturist and also rearing silk worms and only earning member in the family, entire family was depending on his income and on account of the untimely death of the deceased, wife has lost her companion, children are deprived of the love and affection, guidance and inspiration of their father and mother has lost her son. Having regard to the age, occupation, year of the accident and the number of dependants, we re-assess his income at Rs. 6,000/- per month instead of Rs. 5,000/- per month as assessed by the Tribunal to meet the ends of justice. Out of which, if 1/4th ( Rs. 1,500/-) is deducted towards the personal and living expenses of the deceased as rightly done by the Tribunal, his net income comes to Rs. 4,500/- per month. The proper multiplier applicable is ''15'' since deceased was aged about 38 years. Therefore, we re-determine the loss of dependency at Rs. 8,10,000/- ( Rs. 4,500/- x 12 x 15) instead of Rs. 6,75,000/- as awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case and in the light of the law laid down by the Apex Court and this Court, we award a sum of Rs. 1,00,000/- towards loss of consortium Rs. 1,00,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each of the appellant Nos. 1 to 4, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 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% p.a. awarded by the Tribunal.

In all, the appellants are entitled to a total compensation of Rs. 10,60,000/- instead of Rs. 7,33,466.70 paise as awarded by the Tribunal.

Regarding contributory negligence, it is the submission of the learned counsel appearing for respondent Nos. 2 and 3-Corporation, that the Tribunal, after due consideration of the oral and documentary evidence available on file, has recorded the finding of fact in paras 11 and 12 of its judgment for fixing contributory negligence at 50% each on the part of the rider of the motor bike and the driver of the bus belonging to the Corporation and therefore, it does not call for interference. He further submits that, in fact, there is no negligence on the part of the driver of the bus and the entire negligence is on the part of the rider of the motor bike. There is some substance in the submission made by learned counsel appearing for respondent Nos. 2 and 3. The ground urged by the appellants in the memorandum of appeal that the entire negligence is on the part of the driver of the bus being the heavy vehicle cannot be sustained to hold that the entire negligence is on the part of the driver of the bus. The Tribunal, after due appreciation of the oral evidence of PW 1 coupled with the documentary evidence at Ex. P3 to P5, has recorded the finding of fact in paras 11 and 12 of its judgment for fixing negligence in the ratio of 50% each on the part of the rider of the motor bike and the driver of the bus belonging to the Corporation. Therefore, it does not call for interference nor we find any justification or good grounds as such made out by the appellants in this regard. Hence, we confirm the reasoning recorded by the Tribunal for fixing negligence in the ratio of 50% each on the part of the rider of the motor bike and the driver of the bus.

Out of total compensation of Rs. 10,60,000/-, if 50% ( Rs. 5,30,000/-) is deducted towards contributory negligence on the part of the rider of the motor bike, the appellants are entitled to the compensation of Rs. 5,30,000/-. There would be an enhancement of Rs. 1,63,266.65 paise ( Rs. 5,30,000/- - Rs. 3,66,733.35 paise), with interest at 9% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned judgment and award dated 09/03/2012 passed in MVC No. 1034/2011, by the Presiding Officer, Fast Track Court-IV, Additional Motor Accident Claims Tribunal, Mysore, is hereby modified, awarding a sum of Rs. 1,63,266.65 paise with interest at 9% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The 3rd respondent-Corporation is directed to deposit the enhanced compensation of Rs. 1,63,266.65 paise with interest at 9% p.a., from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the 3rd respondent, out of the enhanced compensation of Rs. 1,63,266.65, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of appellant No. 1, wife of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 15 years, renewable by another 15 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

Remaining sum of Rs. 63,266.65 with proportionate interest shall be released in favour of appellant No. 1 immediately.

Draw the award, accordingly.