M. Raju and Others vs The Managing Director, KSRTC

N.K. Patil, J—Though this appeal is listed for orders, with the consent of learned Counsel on both sides, it is taken up for final disposal.

This appeal is filed by the claimants against the impugned judgment and award dated 21.10.2013 passed in MVC No. 1260/2010 on the file of the Motor Accident Claims Tribunal & Addl. Judge, Court of Small Causes, Mayohall Unit, Bangalore (SCCH-19) (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 1,66,000/- with interest at 6% p.a. from the date of petition till the date of payment on account of death of one R. Arun in a road traffic accident. On the ground that the quantum of compensation awarded by the Tribunal is on the lower side and fixing the contributory negligence at 75% on the part of the deceased R. Arun is excessive, the appellants have presented this appeal.

Brief facts of the case in hand are:

"Appellant Nos. 1 and 2 are parents and appellant No. 3 is sister of deceased late R. Arun. It is the case of the appellants that deceased R. Arun was aged 23 years and a B.Com graduate. He was a progressive businessman earning Rs. 20,000/- per month and whatever he was earning, he used to spend it for welfare of the family. Be that as it may, on 30.10.2009, at about 3.30 P.M., when the deceased was riding his motor cycle bearing registration No. KA-02-HA-9473, along with one Vijay from Subramanya towards Gundya, on reaching near Coco Plantation at Kombaru village, Manibandya, a KSRTC Bus bearing registration No. KA-19-F-2527 driven by its driver came in a rash and negligent manner in the opposite direction and dashed against the deceased motor cycle. Due to the impact, the deceased fell down and sustained fatal injuries and succumbed to the injuries on the way to the hospital. It is the further case of the appellant that huge amount for shifting the dead body and performing funeral and other family rituals has been spent. On account of untimely death of deceased, the appellants have lost love and affection and suffered mental pain and agony. They filed a claim petition under Section 166 of the M.V. Act, claiming compensation of Rs. 25,00,000/- against the respondents. The claim petition filed by the claimants came up for consideration before the Tribunal and the Tribunal in turn after perusal of the oral and documentary evidence available on record allowed the claim petition in part awarding a sum of Rs. 1,66,000/- under different heads with interest at 6% p.a. from the date of petition till the date of payment fixing 75% contributory negligence on the part of the deceased rider of the motor cycle. Being dissatisfied with the same, the claimants have presented this appeal."

We have heard Sri K.T. Gurudeva Prasad, learned Counsel appearing for the appellants and Smt. Sumangala A. Swamy, learned Counsel appearing for the respondent.

Learned Counsel for the appellants at the outset submits that the Tribunal has erred in fixing 75% contributory negligence on the part of the deceased and also assessing the income of deceased at only Rs. 4,000/- per month. The accident occurred on 30.10.2009 and deceased was a B. com Graduate and doing business and only earning member of the family. Therefore, he submits that the contributory negligence fixed on the part of the deceased at 75% be modified by fixing 50% each on the part of both the rider of the motor cycle and driver of the bus. He further submits that the income of the deceased be taken at least at Rs. 10,000/- p.m. and 50% be deducted towards personal expenses and apply the multiplier of 18, in the light of Judgment of the Hon''ble Supreme Court in the case of Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others(2015) 2 ACC 806 : (2015) ACJ 1985 : (2015) 7 AD (SC) 185 : (2015) 4 ALD 114 : (2015) 4 ALLMR 436 : (2015) 4 BomCR 72 : (2015) 3 CGLJ 93 : (2015) 3 RCR(Civil) 447 : (2015) 3 RLW 2021 : (2015) 6 SCALE 522 : (2015) 6 SCC 347 : (2015) 2 WLN 113 , wherein it is held in para 12 of the said judgment that the age of deceased is to be taken for applying the multiplier. He further submits that the amount awarded under conventional heads is also on the lower side. Therefore, he prays to re-determine the compensation towards loss of dependency and conventional heads by modifying the judgment and award of the Tribunal.

Per contra, learned Counsel for the respondent-Corporation sought to substantiate the impugned judgment and award by contending that the Tribunal has awarded reasonable compensation after due consideration of the oral and documentary evidence available on record and recorded a finding of fact in paragraph Nos. 12 and 13 of the judgment by holding that there is 75% contributory negligence on the part of the rider of the motor cycle and 25% on the part of the driver of the KSRTC bus as per the damage caused to both the vehicles as shown in Exs. P3 and P4. Therefore, the Tribunal was justified in awarding reasonable compensation on all heads and fixing 75% contributory negligence on the part of the deceased rider of the motor cycle. Hence, interference by this Court does not call for.

After critical evaluation of the material available on record and considering the submissions made by the learned Counsel for both parties and perusal of the impugned judgment and award, the points that arise for our consideration are:

"1. Whether the Tribunal is justified in law infixing 75% contributory negligence on the part of the rider of the motor cycle deceased R. Arun?

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

Re. point No. 1: The occurrence of the accident resulting in death of deceased R. Arun in the accident and the vehicles involved in the accident are not in dispute. It is crystal clear from the contents of spot mahazar - Ex. P2, IMV report - Ex. P3, spot sketch - Ex. R3 and three photos -Ex. R4, coupled with evidence of P.Ws 1 to 3 that the Tribunal after considering the oral and documentary evidence by assigning valid and cogent reasons in paragraph No. 13 of the judgment, has recorded a finding of fact that the rider of the motor cycle deceased R. Arun contributed to the negligence at 75% and driver of the bus contributed at 25%. Further, the Tribunal has taken note of Ex. P4-Inquest report, wherein it is stated that the two wheeler is more damaged compared to Bus. The damage caused is front bumper bent inward at centre, front wheel mudguard damaged, head light doom damaged, front number plate damaged, front right side indicator damaged, front right side indicator damaged, handle bent, break pedal damaged, silencer damaged, fuel tank damaged, crush guard damaged, poor right side indicator damaged, rear right side shock observer damaged and right side panel damaged. After careful perusal of spot mahazer- Ex. P2 and IMV report-Ex. P3 coupled with Ex. R3- spot sketch and evaluation of two independent witnesses R.Ws. 2 and 3, after reappreciation of material on record, it is clear that the Tribunal has erred in fixing 75% contributory negligence on the part of the rider of the motor cycle deceased R. Arun. The Tribunal ought to have taken the fact that the offending bus involved in the accident was a heavy vehicle. No doubt, there is some negligence on the part of the driver of the bus. The driver of the bus ought to have driven the bus cautiously following traffic rules and regulations. There was a curve and the motor cycle was coming from the opposite direction with a moderate speed. Therefore, there is reasonable negligence on the part of the driver of the bus also. Taking these aspects into consideration, we re-fix the contributory negligence at 60% on the part of the driver of the motor cycle and 40% on the part of the driver of the bus.

Re. point No. 2: The occurrence of the accident resulting in the death of deceased in the accident are not in dispute. It is also not in dispute that the deceased was aged 23 years, B.Com graduate. But to prove the same, the appellants have not produced any credible document like bank pass book to show the income of the deceased nor any returns filed before the State or central Sales Tax authorities showing his income. Taking into consideration the age, avocation, year of accident, etc., we can safely reassess the income at Rs. 8,000/- per month, to meet the ends of justice. He was a bachelor and therefore, if 50% towards personal expenses of the deceased is deducted, then the net contribution to the family comes to Rs. 4,000/-. In the light of the judgment of the Supreme Court as held in Munna Lal Jain''s case (supra), we apply the multiplier of 18 by taking the age of the deceased. Accordingly, loss of dependency works out to Rs. 8,64,000/-. (Rs. 4,000/- x 12 x 18) as against Rs. 3,84,000/- awarded by the Tribunal.

In the light of catena of judgments of the Apex Court and this Court, we deem it appropriate to award a sum of Rs. 75,000/- towards loss of love and affection at Rs. 25,000/- each, Rs. 25,000/- towards loss of estate, Rs. 25,000/- towards funeral and transportation expenses. Hence, the compensation, in all, works out to Rs. 9,89,000/- Out of that, if 60% towards contributory negligence is deducted, then the compensation payable comes to Rs. 3,95,600/- as against Rs. 1,66,000/- awarded by the Tribunal. There will be an enhancement of Rs. 2,29,600/- with interest at 6% p.a. from the date of petition till the date of realization.

For the foregoing reasons, the instant appeal filed by the appellants is allowed in part. The judgment and award dated 21.10.2013 passed in MVC No. 1260/2010 on the file of the Motor Accident Claims Tribunal & Addl. Judge, Court of Small Causes, Mayohall Unit, Bangalore (SCCH-19) is hereby modified by awarding Rs. 3,95,600/- as against Rs. 1,66,000/- awarded by the Tribunal. The enhanced compensation comes to Rs. 2,29,600/- with interest at 6% p.a. from the date of claim petition till the date of deposit.

The respondent-Corporation is directed to deposit the enhanced compensation with interest within three weeks from the date of receipt of a copy of this judgment.

Out of enhanced compensation of Rs. 2,29,600/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of appellant No. 2-Smt. R. Mahalakshmi (mother of the deceased), in F.D. in any nationalised or scheduled or Grameena Bank for a period of 10 years and renewable for 10 years, with liberty to withdraw the interest periodically.

A sum of Rs. 50,000/- with proportionate interest shall be invested in F.D. in the name of appellant No. 1-M. Raju (father of the deceased), in any Nationalised or Scheduled or Grameena bank for a period of 5 years and renewable for 5 years, with liberty to withdraw the interest periodically.

The remaining amount of Rs. 79,600/- with proportionate interest shall be released in favour of appellant Nos. 1 to 3, in equal proportion immediately upon deposit of the same by the Corporation.

Office to draw the award accordingly.