Shriram General Insurance Co. Ltd. vs Suresh and Others

Rathnakala, J.—1. These appeals are directed against the judgment and award dated 22nd September 2014 passed in M.V.C. No. 7422/2012 on the file of the XIII Additional Small Causes Judge and Member, M.A.C.T., Bangalore, (''the Tribunal'' for short) whereby the claim petition filed by the claimants under Section 166 of the Motor Vehicles Act is allowed in part, awarding compensation of Rs. 15,96,600/- with interest @ 8% per annum from the date of petition till realization by fixing liability of 40% on the K.S.R.T.C. and 60% on the Canter vehicle.

While in M.F.A. No. 9/2015, the K.S.R.T.C. is challenging its liability to answer the award, so also the exorbitance of the quantum of compensation, in M.F.A. No. 8025/2014, the insurer of the Canter vehicle is at seeking apportionment of contributory negligence at the ratio of 50:50 between both Tort feasors and also questioning the exorbitance of the quantum of compensation.

The fact is, the claimants being the husband and minor children of one deceased Geetha @ Geethamma filed the claim petition under Section 166 of Motor Vehicles Act before the Tribunal contending that, on 5.11.2012 at 6.30 a.m., while the deceased was waiting by the side of the road to cross the road on Bangalore-Tumkur Road near Police junction, a K.S.R.T.C. bus bearing registration No. KA-01/F-9218 came from Bangalore side. At the same time a Canter bearing registration No. KA-01/C-6394 came from Police Station side with high speed in a rash and negligent manner colluded with each other, then dashed against the deceased and knocked her down, thereby she suffered crush injuries and severe head injury and died on the way to Hospital.

The claim was contested. On overall assessment of the oral and documentary evidence, the Tribunal has awarded compensation of Rs. 15,96,600/- with interest @ 8% per annum and the liability is fastened at 40% on the K.S.R.T.C. bus and 60% on the Canter lorry.

Sri. D. Vijayakumar, learned Counsel appearing for the appellant/KSRTC in M.F.A. No. 9/2015 assailing the liability to pay the compensation submits that, the place of occurrence was a Highway junction. The KSRTC bus was on its way from Bangalore to Chikmagalur via Peenya, since the signal was for the passage of the vehicles coming from Bangalore side. The Canter lorry, came from the Police Station road, in the process of jumping the signal, dashed to the left side of the body of the KSRTC bus. Due to the said impact, both the vehicles were dragged to the right side and hit the lady, who was standing in the middle of the road and thereafter dashed to another Canter vehicle bearing registration No. KA-13/A-8205. The driver of Canter vehicle bearing registration No. KA-13/A-8205 lodged complaint to the police. As per the complaint averments, it was the driver of the Canter vehicle, who drove the vehicle rashly and negligently in a reckless manner and in his effort to jump the signal violated the traffic rules and regulations thereby was entirely responsible for the accident. The Corporation examined the driver of the KSRTC bus, who is the eye-witness to the incident also and his evidence could not be shattered during his cross-examination. In that view of the matter, liability fixed on the KSRTC bus at 40% is not proper. That apart, the Tribunal while capitalizing the quantum of compensation has considered the future prospects of the deceased, which was not called for, since the deceased was a coolie without any secured avocation. It was a family of six persons. As per the judgment of the Apex Court in Sarla Verma and Others v. Delhi Transport Corporation and Another reported in , 2009 ACJ 1298), for a family of six, the deduction towards the personal expenses of the deceased shall be 1/4th, but the Tribunal has deducted 1/5th of the income towards her personal expenses, that has substantially increased the compensation, which cannot be sustained.

Sri. A.N. Krishnaswamy, learned Counsel for the appellant in M.F.A. No. 8025/2014 while endorsing the submission made in respect of the disproportionality of the compensation submits that, the Canter lorry had already crossed the road and at that time, since the KSRTC bus came in a rash and negligent manner, the accident has occurred. The complainant, who was also an eye-witness to the incident, has categorically stated so in his complaint that the driver of the KSRTC bus was also responsible for the accident. The Police on investigation have charge sheeted drivers of both Canter lorry and KSRTC Bus. The driver of the KSRTC bus during trial has admitted that he has not challenged the charge sheet filed against him. In respect of the very same accident, an inmate of the KSRTC bus has filed a claim petition before the Tribunal in M.V.C. No. 7436/2012 before the M.A.C.T., Court of Small Causes, Bangalore (SCCH-4), wherein the concerned Tribunal has apportioned the contributory negligence at 50:50 respectively on both vehicles. The observation made in the said judgment is binding on the KSRTC bus and the liability in this case is also liable to be fixed at 50:50 only taking into consideration the above circumstances.

Smt. M.C. Umadevamma, learned Counsel appearing for the respondents/claimants submits that, the Tribunal by considering the materials placed on record, has rightly quantified the compensation and the said award does not call for any interference.

In the light of the above submissions made by the learned Counsel appearing for the parties, the followings points arise for our consideration:

"(1) Whether the amount awarded by the Tribunal is inadequate, calling for interference?

(2) What is the ratio of contributory negligence of each of the vehicles in respect of the accident?"

Fact not in dispute between the parties is, the accident occurred involving the KSRTC bus bearing registration No. KA-01/F-9218 and the Canter lorry bearing registration No. KA-01/C-6394, due to which the deceased suffered fatal injuries and succumbed to the same on the very same day; the claimants are the Class-I legal heirs/husband and minor children of the deceased. The deceased was a coolie by profession. In the above backdrop and in the absence of any documentary proof, the Tribunal has considered the income of the deceased at Rs. 6,750/- per month. However, while quantifying the contribution of the deceased to the family, it has deducted 1/5th of the said income which is against the ruling of the Apex Court in Sarla Verma''s case (supra); since it was a family of six persons, the deduction ought to have been at 1/4th towards personal expenses of the deceased. In that view of the matter, deducting 1/4th of Rs. 6,750/- comes to Rs. 5,063/- per month. The age of the husband of the deceased being 32 years at the relevant time, the proper multiplier to work out the loss of dependency is ''16'' as per the judgment of the Apex Court in Sarla Verma''s case (supra), thereby the compensation towards loss of dependency works out to Rs. 9,72,096/- (Rs. 5,063/-x 12 x 16). By adding loss of consortium at Rs. 1,00,000/- and loss of love affection @ Rs. 3,00,000/- (Rs. 50,000/- per claimant) and loss of estate @ Rs. 25,000/- and Rs. 25,000/- towards transportation and funeral expenses, the total compensation comes to Rs. 14,22,096/- as against Rs. 15,96,600/- awarded by the Tribunal. Thus an amount of Rs. 1,74,504/- in excess is awarded by the Tribunal, calling for modification, by deducting the excess amount from total compensation of Rs. 15,96,600/- awarded by the Tribunal.

Coming to the question of liability, we have perused the relevant documents i.e., complaint allegation, sketch of scene of occurrence prepared by the Investigating Officer in the criminal case and the I.M.V. report. There is damage on the middle portion of right side of the KSRTC bus and the front portion of Canter lorry. The driver of the Canter lorry and also the complainant/driver of another Canter lorry bearing registration No. KA-13/A-8205, which also got damaged in the accident, are not examined. Only the driver of the KSRTC bus/RW-1, who was also an eye-witness to the incident, is examined on behalf of the K.S.R.T.C. Though it probabalises from the evidence on record that the driver of the Canter had skipped the signal, still fact remains that the accident could have been averted if the driver of the KSRTC bus was more alert and watchful at that junction. He cannot contend that Canter lorry was not visible. It is not just sufficient that for a safe driving to follow traffic rules, it also requires mindful and attentive driving with an eye on unruly driving on the road. In that view of the matter, we are of the considered opinion that the apportionment of the contributory negligence fixed by the Tribunal warrants modification at 30% on the driver of the KSRTC bus and at 70% on the driver of the Canter lorry.

For the discussion made supra, both M.F.A. Nos. 8025/2014 and 9/2015 are partly allowed.

The judgment and award dated 22nd September 2014 passed in M.V.C. No. 7422/2012 on the file of the XIII Additional Small Causes Judge and Member, M.A.C.T., Bangalore, is hereby modified; instead of compensation of Rs. 15,96,600/- awarded by the Tribunal, the claimants are entitled for compensation of Rs. 14,22,096/- with interest @ 8% per annum from the date of petition till realization.

The apportionment of the compensation amount shall be in accordance with the order of the Tribunal.

The liability is fixed at 70% to the Canter lorry (appellant in M.F.A. No. 8025/2014) and 30% to the K.S.R.T.C. bus (appellant in M.F.A. No. 9/2015).

The amount deposited by the appellants in both appeals, so also the L.C.R. shall be transmitted to the jurisdictional Tribunal, immediately.