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Judgment
G. Narendar, J. - These two appeals respectively by the Insurer and the claimants are directed against the same judgment and award dated 13-03-2015 passed in MVC No. 1149/2013, by the Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru, (for short, ''Tribunal'').
While the Insurer has filed the appeal in M.F.A. No.3983/2015, seeking to set aside the 50% liability fastened on it and for reduction of compensation, the claimants have filed the appeal in M.F.A. No. 6361/2015, seeking enhancement of compensation on the ground that, the compensation of Rs. 12,37,000/-awarded in their favour is on the lower side.
The brief facts of the case are that, the third respondent before the Tribunal is the appellant before this Court in M.F.A. No.3983/2015, being the Insurer of the offending vehicle being Lorry bearing Registration No.KA-11/7061 and the other vehicle involved is a bus belonging to the first respondent before the Tribunal being BMTC Bus bearing Registration No.KA-01/F-2467 and the claimants are the legal heirs of the deceased pillion rider of the motor cycle bearing Registration No. KA-05/HW-2030.
Heard the learned counsel appearing for Insurer, learned counsel appearing for Corporation as well as the learned counsel appearing for claimants.
The facts are as follows:
That on 24/01/2013, at about 5:00 p.m., when the deceased Dundumada Naik was proceeding on the motor cycle bearing Registration No.KA-05/HW-2030, as a pillion rider, slowly and cautiously and when they reached near Ved Vignan Maha Vidya Peeth Higher Primary School, Kanakapura Road, Bangalore, the driver of the BMTC Bus which was ahead of the motor cycle applied a sudden brake without any indication or signal and that the rider of the motor cycle, in order to avoid dashing against the bus swerved to the right and in the process, the motor cycle hit the right side of the bus and the rider of the motor cycle lost balance and he fell on to the left side of the road and the pillion rider fell on to the right side of the road and before he could recover, the offending vehicle, being the lorry bearing Registration No. KA-11/7061 ran over the pillion rider who was thrown to the ground and he sustained fatal injuries and succumbed to the same on the spot. He was immediately shifted to Rajarajeshwari Medical College Hospital, Kengeri, where after post-mortem, the body was handed over to the claimants.
It is claimed that the deceased pillion rider, prior to the accident was hale and healthy and employed as a Teacher with Ved Vignan Maha Vidya Peeth Higher Primary School at Kengeri and was being paid a salary of Rs. 6,430/- per month. Apart from that, he was also earning Rs. 13,000/- per month from tuition and in all, he was earning about Rs. 19,430/- per month and was maintaining the family, being the only earning member of the family. On account of the untimely and unnatural death of the deceased, the claimants are facing great hardship and financial drought and there arc no other earning members in the family. It is also stated that the deceased had completed D.Ed. and T.C.H. courses and had also secured high marks in his under graduation final year examination and that he was a very enterprising person and a participant in Bharath Scouts and Guides at the State Level and was striving to compete in the Karnataka Administrative Services Examination and that he had a bright future.
That the jurisdictional Police have registered a case in Crime No. 55/2013 and after investigation, the Police have filed the charge-sheet against the driver of the lorry, for the offences punishable under Sections 279, 337 and 304-A, IPC. On the above pleading, the claimants have sought for award of damages amounting to Rs. 50.00 lakhs.
Upon notice from the Tribunal, the respondents 1 to 3 entered appearance and submitted their respective written statements.
On behalf of the first respondent, Transport Corporation, it was contended that the bus was being manned by the driver and it was being driven slowly and cautiously following all traffic rules and that the rider of the motor cycle, on which the deceased was travelling, tried to overtake from the left side of the bus and while so doing, lost control of the vehicle and in the process, the pillion rider fell down on the right side of the road and the lorry which was on the rear side of the motor cycle hit the motor cycle and ran over the deceased and that the bus is in no way responsible for the accident.
It was also contended that the charge-sheet has been filed against the third respondent, who is the Insured and driver of the lorry bearing registration No.KA-11/7061 and after denying all the contentions on behalf of the claimants, it has contended that the driver was driving the lorry in a very slow and proper manner and that he was observing all the traffic rules and regulations and was on the left side of the road. It is further contended that the driver of the BMTC Bus, without any provocation or reason applied a sudden brake and there being no indication or signal, the rider of the motor cycle also applied sudden brake and in the process, he lost control and dashed against the bus from behind and both rider and pillion rider fell on to the left side of the road and sustained injuries as alleged and therefore, it is claimed that the accident occurred on account of rash and negligent driving of the BMTC Bus by its driver and the rider of the motor cycle and prayed that the claim petition as against the Insurer be rejected as there was no negligence on the part of the driver of the lorry and hence, the petition is not maintainable against it and consequently, the appeal against the Insurer of the lorry requires to be rejected.
On the basis of the pleadings and material, the Tribunal formulated the four issues as follows:
Whether the petitioners prove that they are the legal heirs of the deceased Sri. Dundumada Naik?
Whether the petitioners prove that the death of Sri. Dundumada Naik on 24.1.2013 at about 5:00 p.m. is due to the rash and negligent driving of the drivers of both the lorry bearing Reg. No. KA-11/7061 and BMTC Bus bearing Reg. No. KA-01/F-2467 by its drivers and dashing against deceased, who was pillion rider, on Bangalore-Kanakapura road, near Veda Vignana Mahavidya Peeta, Uttarahally Hobli, Bangalore South taluk?
Whether the petitioners are entitled for compensation? If so, how much and from whom?
What order or award?"
The claimants, in order to prove their case, examined PWs. 1 to 4, wherein the third claimant, who is the younger brother of the deceased examined himself as PW1 and the rider of the motor cycle was examined as PW2 and on their behalf, Exhibits P1 to P37 were produced and got marked; On behalf of the respondents, the driver of the bus belonging to the BMTC and the Officer of the Insurance Company have been examined as RW1 and RW2 and produced and got marked copy of the Policy as Ex.R1 and it is relevant to note even in the affidavit of RW2, the Officer of the Company has deposed as follows:
"I State that the lorry bearing No. KA-11/7061 was driven by its driver very slowly by observing the traffic rules and regulations on the left side of the road. I further state that the driver of the BMTC Bus bearing No. KA-01/F-2467 driven by its driver in fash and negligent manner and suddenly applied the brake, without any indication or signal as pleaded in the petition and at that time the rider of the motor cycle ride the same in rash and negligent manner with high speed and due to over speed, lost the control over the vehicle and dashed against the BMTC Bus from behind and sustained injury and died on the spot. Therefore, it is clear that the accident was occurred due to the rash and negligent driving by the driver of the bus bearing No. KA-01/F-2467 and also on the part of the rider of the motor cycle, in which the petitioner son was proceeding as a pillion rider and therefore it is clear that there is no negligence on the part of the driver of the lorry and therefore the petition is liable to be dismissed."
The Tribunal after consideration of the respective pleading and after evaluating the material on record and after consideration of the submission on behalf of the parties, was pleased to pass the judgment and award impugned herein and was pleased to award a sum of Rs. 12,37,000/- as compensation with interest fixed at the rate of 8% per annum from the date of petition till the date of deposit. Further, the Tribunal was pleased to hold that it was a case of composite negligence rather than a case of contributory negligence and apportioned the negligence by holding both the BMTC Bus and the lorry equally negligent and hence, directed both of them to bear the burden of satisfying 50% of the sum awarded as compensation.
Aggrieved by the fastening of 50% of the liability, the Insurer of the Lorry is before this Court in M.F.A. No.3983/2015.
The learned counsel for the Insurer would strenuously canvass that the driver of the lorry was never negligent and that the accident was beyond the control of the driver as the pillion rider was thrown off the vehicle and into the path of the lorry, which was on the right side of the road, as it was in the process of overtaking the stationary bus.
The undisputed fact is that the rider and the pillion rider of the motor cycle were proceeding on the left side of the road and they were behind the BMTC Bus, which is also saddled with the liability of satisfying 51% of the award. It is also not in dispute that the lorry which has been found to be the offending vehicle was behind the motor cycle.
It is the case of the driver of the BMTC Bus that the rider of the motor cycle hit the rear right side of the bus and fell on to the left side of the motor cycle while the pillion rider, i.e. the deceased fell on to the right side of the motor cycle and that the lorry which was behind the motor cycle hit the motor cycle and ran over the deceased, resulting in his instantaneous death.
A perusal of the defence set up by the Insurer and its deposition are in sync and the defence set up has been canvassed during the trial. It was never even pleaded by the Insurer that the driver of the lorry was on the right side of the road or that the accident occurred on account of factors which were beyond the control of the driver of the lorry as is now being attempted to be demonstrated before this Court. There is not even a whisper along these lines either before the Tribunal or in the course of leading their evidence on their behalf. On a clarification sought, the learned counsel for the appellant/insurer would submit that he would rely upon the Police documents especially the complaint FIR and the charge-sheet. If that be so, if the Insurer is trying to make out a case on the basis of these documents which are Exhibits P1 to P4, then, it is the very same documents which have implicated the driver of the lorry and held him to be responsible for causing the death on account of his driving the lorry in a rash and negligent manner. It is apparent that the appellant/insurer who resorted to a case of total denial before the Tribunal would now try to improve its case by trying to take advantage of the statement in the complaint and the same is impermissible. The party cannot be permitted to approbate and reprobate. Having attempted a defence of total denial, the attempt of the appellant/insurer to improve its defence before this Court cannot be appreciated as any defence requires to be pleaded and proved before the fact finding Court and cannot be appreciated otherwise by appellate Court.
It can also be safely inferred that the lorry which was behind the motor cycle also was not maintaining safe distance as prescribed under Regulation 23 of the Road Regulations Rules, 1989 and as pleaded by him, if the driver of the lorry was driving slowly on the left side, he would not have caused the accident on the right side of the road. There is no dispute that the accident has occurred on the right side of the road and the lorry was on the right side of the road and if he had followed the road regulations and had remained on the correct side, i.e. left side of the road and maintained a safe distance, then, the accident would not have occurred.
The learned counsel for the Transport Corporation would submit that had the rider of the motor cycle maintained safe distance as stipulated under Regulation 23 of the Rules, the accident would not have occurred and hence, the fastening of liability on the Transport Corporation is unsustainable. The fact that has been pleaded and established is that the driver of the BMTC Bus was also negligent by applying sudden brake which is the case that has been pleaded not only by the claimants but also corroborated by the evidence of the appellant/insurer and such evidence has not been rebutted by the Transport Corporation and that is the reason why the Tribunal has upheld the said fact and fastened the liability on both the Insurer and the Transport Corporation in the ratio of 50:50. Hence, this Court does not find any ground which would warrant interference with the finding recorded by the Tribunal apportioning 50% of the liability upon the appellant/insurer.
The claimants are the parents and younger brother of the deceased pillion rider of the motor cycle.
The Tribunal has appreciated the facts and the evidence on record and awarded a sum of Rs. 12,37,000/- with 8% per annum, out of the total sum of Rs. 50,00,000/- claimed by the claimants.
Apart from challenging the 50% liability fastened on them, the Insurer has also challenged the quantum of compensation awarded.
Learned counsel appearing for Insurer would contend that the Tribunal has awarded an exorbitant sum by relying on irrelevant and unsubstantiated material. He would submit that the admitted monthly salary is only Rs. 6,430/-and that the Tribunal erred in assuming that the deceased was conducting classes imparting tuition to students and earning over and above the said salary and he would take strong exception to the reliance on Exs.P27 to P37, which are alleged to be the identity cards of the students to whom the deceased was imparting tuition classes in various subjects.
The Tribunal has not merely relied on Exs. P27 to P37 but also on the academic records placed before the Tribunal which clearly endorses the fact that the deceased has achieved academic progress and has been a meritorious student and that he has been successful in securing qualifications beyond a normal graduation and that he has obtained special skills and training as a Teacher, which is evidenced by the material on record in the form of his degree certificates at Exs.P 19 and P21. It is also brought on record that he was a member of the Bharat Scouts and Guides. A material is also placed on record to demonstrate that he was aspiring to compete in the competitive examinations conducted by the Karnataka Public Service Commission. Hence, the Tribunal has concluded that the deceased was an enterprising person with skills and hence, it has accepted the pleading that he was indeed imparting tuitions privately and was earning the sums over and above the salary that he was being paid by the Institution. Exs.P27 to P37 are all corroborative material though they do not independently demonstrate the said fact and it is also seen that the Tribunal has assessed the income from tuition at Rs. 3,670/- per month and hence, it concluded that he was earning about Rs. 10,000/- per month as income and thereafter, the Tribunal has correctly held that the deceased being a bachelor, 50% was of the same requires to be deducted towards his personal and living expenses. But, while so calculating, the Tribunal erred in taking the age of the mother of the deceased for adopting the appropriate multiplier. As per the law'' laid down by the Apex Court and this Court, the appropriate multiplier that is applicable is based on the age of the deceased. In the instant case, the age of the deceased was 24 years. Hence, the appropriate multiplier is ''18''. Accordingly, the claimants would be entitled to a sum of Rs. 10,80,000/- (i.e. Rs. 5,000/- x 12 x ''18'') towards loss of dependency as against Rs. 8,40,000/- awarded by Tribunal. Thus, there would be enhancement of compensation by Rs. 2,40,000/-.
Apart from the said sum, this Court is of the considered opinion that the sum awarded by Tribunal under the conventional heads is just, fair and reasonable and does not call for any interference.
However, this Court is of the considered opinion that the Tribunal is not justified in awarding a sum of Rs. 2,52,000/- towards future prospects.
Learned counsel for the appellant/insurer and learned counsel appearing for BMTC would vehemently argue that the evidence on record clearly demonstrates that the deceased was only being paid an honorarium, which is indicative of the fact that he was a temporary employee and had not secured a permanent and stable employment. They would also submit that the very fact that the deceased was attempting to compete in the competitive examination is also indicative of the fact that the deceased did not intend to remain in the said job and was only functioning as a Teacher in a temporary capacity. Therefore, they would submit that in the light of the said fact, award of Rs. 2,52,000/- towards future prospects at the rate of 30% is unsustainable in the light of the law laid down by the Apex Court and this Court in particular by the Apex Court in the case of Rajesh and others v. Rajbir Singh and others reported in 2013 (9) SCC 54.
It is seen that the contention on behalf of the Insurer merits consideration and there is no material on record to indicate permanency of the employment. But, it is apparent that the material produced by the claimants themselves is indicative that the employment of the deceased was temporary in nature and the same was being paid by way of honorarium. Hence, the award of compensation under the head of future prospects is contrary to the law and unsustainable. Hence, the compensation awarded towards future prospects ought be rejected and the enhancement of Rs. 2,40,000/- made under the head of loss of dependency would merge with the sum awarded towards future prospects.
Taking an overall view of the facts and circumstances, the Tribunal erred in awarding compensation under the head of future prospects and it has also erred while adopting the multiplier. Hence, in the considered view of this Court, the sum of Rs. 12,37,000/- awarded by Tribunal appears to be just, fair and reasonable compensation and does not call for any interference at the hands of this Court.
Hence, the appeals are devoid of merits and deserve to be rejected and are accordingly rejected.
There shall be no order as to costs.
The amount in deposit shall be transmitted to the jurisdictional Tribunal, forthwith.