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Judgment
S. Abdul Nazeer, J.—These two appeals are directed against the judgment and award in MVC No. 326/2008 dated 14.07.2011 on the file of the Principal District Judge and MACT, Chikmagalur. MFA No. 10308/2011 is filed by the Karnataka State Road Transport'' Corporation (for short the Corporation) challenging the aforesaid judgment and award by contending that the bus belonging to the corporation bearing Registration No. KA-18/F-0199 was not involved in the accident in question.
MFA No. 10307/2011 is filed by the claimants seeking enhancement of compensation.
The claimants (appellants in MFA No. 10307/2011) are the parents of one Hannan Suheel. It is the case of the claimants that on 02.03.2008 at about 04:30 P.M., deceased Hannan Suheel along with one Farooq was travelling in a motor cycle bearing Registration No. KA-18/L-2797 to attend the Urus at Kajoor. When they were so travelling at Charmadi Ghat, at K.M. Road near Jenukallu, the aforesaid bus belonging to the corporation, driven by its driver S.R. Basavaraju in a rash and negligent manner dashed against the motor cycle. As a result thereof, Hannan Suheel sustained grievous injuries. He succumbed to the injuries on the way to the hospital. The deceased was a pillion rider and Farooq was riding the motor cycle. It is further contended that the deceased was hale and healthy and was working as a Hardware salesman in a shop called ''City Hardware'' at Mallandur road, Chikamagalur. He was earning Rs. 6,000/- per month. It is further contended that the claimants have spent about Rs. 30,000/- towards transportation of the body and funeral expenses.
The corporation filed its written statement, contending that the bus in question was not involved in the accident. Hannan Suheel must have died due to some other reason. The deceased was a pillion rider in the motor cycle. The rider of the motor cycle had sustained simple injuries. Therefore, Hannan Suheel could not have died in the alleged accident.
On the basis of the pleadings of the parties, the Court below has framed the following issues:
Whether the petitioners prove that Late Hannan Suheel while travelling in the Motor Cycle KA-18/L-2797 on 02.03.2008 at 04-30 P.M. due to the rash and negligent driving of the KSRTC bus bearing Reg. No. KA-18/F-0199 driven by the 1st respondent and thereby suffered grievous injuries and succumbed to the said injuries on the way to the hospital?
Whether the 2nd respondent proves that the KSRTC bus bearing No. KA-18/F-0199 was not involved in the alleged accident?
Whether the petitioners are entitled to any compensation? If so, how much and from whom?
What order?
The 1st claimant was examined as PW-1 and two witnesses were examined as PWs-2 and 3. The documents Exs. P1 to P11 were marked in their evidence. The driver of the bus was examined as RW-1 and a witness was examined as RW-2. Documents Exs. R1 to R13 were marked in the evidence of the respondents. On appreciation of the materials on record, the trial Court has held that the accident had occurred because of the rash and negligent driving of the bus by its driver. The Court below has awarded compensation in a sum of Rs. 4,16,000/- with interest at 6% per annum from the date of petition till the date of deposit in favour of the claimants.
Learned counsel for the Corporation submits that the Court below is not justified in holding that the bus belonging to the Corporation was involved in the accident. It is argued that the deceased claims to be a pillion rider. The rider of the motor cycle has not lodged a complaint before the police. The employer of the deceased had lodged the complaint. The IMV report suggests that no damage has been caused to the front portion of the motor cycle. The driver of the bus has been acquitted in the criminal case filed against him by the police. The rider of the motor cycle has not sustained any injuries. The corporation has examined a passenger in the bus as RW2. He has also denied the involvement of the bus in the accident. All these circumstances would clearly show that the bus was not involved in the accident. The Court below has not appreciated the evidence on record in its proper perspective.
Alternatively, it is argued that the compensation determined by the Court below is excessive. As per the charge sheet, the age of the father of the deceased was 65. However, the Court below has taken his age at 55 years for the purpose of application of multiplier. The income of the deceased has been taken at Rs. 6,000/- per month for the purpose of computation of loss of dependency. The award of compensation under other conventional heads is also on a ''higher side.
On the other hand, learned counsel appearing for the claimants submits that it is on account of the rash and negligent driving of driver of the bus belonging to the corporation the accident had occurred. There was no delay in lodging the complaint. PW3 is the eye witness who had supported the claimants. The driver of the bus was examined as RW1. He has admitted that he was driving the bus at 04:30 p.m. at Charmadi Ghat. According to him RW2 was a passenger. He has also produced three tickets of the other three passengers. In his evidence he has stated that he came to know about the accident after four days of its occurrence. No reasons are forthcoming as to how he could collect the tickets at Exs. R6 to R8 of the passengers after four days of the accident. The conductor of the bus would have been the best witness to speak about the accident. He has not been examined. RW1 is presently residing at Chikamagalur. His native place is Gabgal at Mudigere Taluk. The so called passengers are either from Gabgal at Mudigere Taluk or from Chikamagalur. It only shows that they were not passengers in the bus. In his statement before the Disciplinary Authority at Ex. R2, he has stated that while the bus was travelling from Mangalore to Chikamagalur on 02.03.2008, people have assembled near Annapaswamy temple and he came to know that the rider of the bike had died. The driver has been making different statements at different points of time. Thus, his statements cannot be believed.
The award of compensation by the tribunal is not adequate. Employer of the deceased had stated that he was paying deceased Rs. 6,000/- per month. The deceased had obtained passport and received Visa to go to a foreign country for employment. He had a bright future. Therefore, the Court below ought to have granted compensation towards loss of future prospects. His mother was aged about 47 years and the age of the mother should have been taken for the purpose of application of the multiplier.
Having regard to the contentions urged the first question for consideration is whether the order of the Court below is right in holding that it was on account of the rash and negligent driving of the driver of the bus belonging to the corporation, the accident had occurred?
PW. 3 is an eye witness to the accident. He was riding the motor cycle. In his examination in chief, he has stated that on 02.03.2008, deceased and himself were going from Chikamagalur to Kajoor. When they were going at Jenukallu near Annappa temple of Charmadi Ghat, the bus belonging to the KSRTC bearing No. KA-18/F-0199 came from the opposite direction driven by its driver in a rash and negligent manner and dashed against the motor cycle. The deceased was a pillion rider who fell down due to the impact and sustained grievous injuries. Hannan Suheel died on his way to the hospital. Though, he was cross-examined at length, nothing worthwhile has been elicited in the cross-examination. PW''s-1 and 2 are not the eye witnesses to the accident.
The driver of the bus was examined as RW1. In his evidence he has stated that the Suheel had died due to some other reason or on account of some other accident. The bus in question was not involved in the alleged accident. The passengers in the bus namely D. Sudhakar, G.A. Poornesh, M.T. Shivakumar and M.I. Ramesh have given their statements to the effect that the bus in question was not involved in the accident. The bus was parked at Kottigehara for coffee break. Thereafter the bus reached Chikamagalur at 06:30 p.m. The bus was seized after four days of the alleged accident from the depot. In his cross-examination, he has denied the suggestion that after collision of the bus, he saw the motor bike through rear window and stopped the bus and that two passengers alighted from the bus and treated the injured with water. At that stage, he threatened those passengers to board the bus immediately and that the passengers boarded the bus and he left the place of accident by driving the bus. He has further stated that he came to know about the accident after four days.
The conductor of the bus would have been the best witness to depose regarding the accident. Strangely he has not been examined. The driver of the bus has submitted a report as per Ex. R2 dated 09.06.2008 before the management. In his report, he has stated that on 02.03.2008 while he was driving the bus from Mangalore to Chikamagalur, he saw the motor bike near Annappa Temple on Ghat road and came to know that the rider of the motor bike had died. Thereafter, he proceeded towards Chikamagalur. Thus, in the cross-examination, he says that he came to know about the accident after four days and in the statement made by him in Ex. R2, he has stated that he came to know about the accident and the death of the rider of the motor cycle while he was driving the bus on 02.03.2008 itself. It is clear from these two statements that the driver of the bus has not stated the true facts before the Court. In the chief examination, the driver of the bus says that four passengers namely D. Sudhakar, G.A. Poornesh, M.T. Shivakumar and M.I. Ramesh were also travelling in the bus and that they have given the statements to the effect that the bus in question was not involved in the accident. In order to establish that they were travelling in the bus he has produced the bus tickets at Exs. R11, R12, and R13. Sudhakar has given the statement as per Ex. R5 before the Depot Manager, wherein, he has stated that he is a resident of Bijuvali, Mudigere Taluk. Shivakumar and M.T. Ramesh are also residents of Mudigere Taluk.
It is clear from the order of criminal Court at Ex. R13 in C.C. No. 325/2008 dated 06.06.2009 that the driver of the bus is a resident of Gabgal, Mudigere taluk and residing at GowriKaluve, Chikmagalur. Poornesh is residing very close to the house of the driver at Chikamagalur. Naturally these persons have made statements in support of the driver of the bus. As noticed above, in the cross-examination, he has stated that he came to know about the accident four days after its occurrence. He has produced the tickets of the aforesaid four persons at Exs. R11, R12 and R13. It is not understandable as to how he can retain the tickets of the passengers after four days of the accident. It is not his case that he knew them earlier to the accident. They were like any other travelling public in the bus. Thus, the evidence of the driver cannot be believed, as he has not spoken the truth. It is also to be noticed here that a complaint was lodged against the driver of the bus and after investigation charge sheet was filed against him. The driver has been acquitted as the prosecution failed to prove the guilt of the driver beyond a reasonable doubt. It is not an honorable acquittal.
As stated above, the evidence of PW3, an eye witness to the accident coupled with the other materials on record probabilises that the driver of the bus belonging to the corporation has caused the accident.
That brings me to the next question as to whether the compensation determined by the Court below is just and proper?
The employer of the deceased was examined as PW2. In his evidence he has stated that the claimant was working in his shop namely ''City Hardware''. The age of his mother was 47 years at the time of accident. Therefore, Court below ought to have applied multiplier 14. The claimants have produced passport of the deceased along with the visa. The father of the deceased was examined as PW1. In his chief examination he has stated that the deceased was earning Rs. 6,000/- per month. He has obtained Passport and Visa. He had plans to go to a foreign country so that he can get better salary. From these documents, it is clear that the deceased had a bright future. The deceased was aged 26 years at the time of accident. Therefore, it is just and proper to add 50% of/his income towards loss of future prospects. Thus, total income which has to be taken for the purpose of computation of loss of dependency comes to Rs. 9,000/-. 50% of the income has to be deducted towards his personal expenses. The balance of the amount comes to Rs. 4,500/-. By taking his income at Rs. 4,500/- per month, with the application of multiplier 14, the compensation payable towards loss of dependency comes Rs. 7,56,000/- (4,500 x 12 x 14=7,56,000).
The Court below has rightly awarded a sum of Rs. 10,000/- towards shifting of the body and funeral expenses. The claimants are entitled for a sum of Rs. 50,000/- towards loss of love and affection. In all, the claimants are entitled for total compensation of Rs. 8,16,000/-.
The Court below has awarded total compensation of Rs. 4,16,000/- which has to be deducted from the aforesaid sum and the balance compensation payable to the claimant is Rs. 4,00,000/-.
In the light of the above discussion, I pass the following:
ORDER
The appeal filed by the Corporation in MFA No. 10038/2011 is dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.
The appeal filed by the claimants in MFA No. 10307/2011 is allowed in part. The Corporation (appellant in MFA No. 10038/2011 and respondent in MFA. No. 10307/2011) is directed to deposit a sum of Rs. 4,00,000/- with interest at 6% per annum from the date of petition till the date of deposit. The tribunal is directed to invest a sum of Rs. 1,00,000/- each in the name of claimant Nos.-1 and 2 for a period of 5 years in a nationalized bank. They are permitted to withdraw the interest annually. Balance of the amount shall be disbursed in favour of claimant Nos.-1 and 2 in equal proportion. No costs.