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Judgment
N.K. Patil, J.—Though these appeals are posted for Admission, with the consent of learned counsel appearing for the parties, the same are taken up for final disposal. These two appeals respectively by the Claimants/wife and children of deceased H. Lingaiah and the Andhra Pradesh Road Transport Corporation, represented by its Managing Director, (hereinafter referred to as ''A.P.R.T.C.'' for short) are directed against the same judgment and award dated 8th February 2012, passed in MVC No. 4871/2010, by the XII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal, Bangalore, (for short, Tribunal'').
The Tribunal, by its order dated 8th February 2012, allowed the claim petition in part, awarding compensation of a sum of Rs. 15,14,983/- with 6% interest per annum and fixed the liability to indemnify the said amount on the part of the K.R.T.C. and its Insurer on the one part and A.P.R.T.C. on the other at 50% each.
While the claimants have filed the appeal, seeking enhancement of compensation on the ground that the compensation of Rs. 15,14,983/- with 6% interest per annum, awarded by Tribunal is on the lower side; the A.P.R.T.C. has filed the appeal on the ground that, the Tribunal is not justified in fixing the contributory negligence in the ratio of 50:50 on the part of the K.R.T.C. and A.P.R.T.C. on account of the death of the deceased H. Lingaiah in the road traffic accident that occurred on 10-06-2010.
The facts of the case as stated in the claim petition are that, at about 5-30 P.M., on the ill-fated day, i.e. on 10-06-2010, when the deceased H. Lingaiah was proceeding in K.S.R.T.C. Volvo Bus, bearing Registration No. KA-01/F-8040, as conductor, on NH-7 highway, in the direction from Bangalore to Hyderabad, the driver of the said Volvo Bus drove the same at high speed, in a rash and negligent manner and dashed against the hind portion of A.P.R.T.C. Bus bearing Registration No. AP-28/Z-2651, Which was negligently parked on the middle of the road, without indications or parking lights. Due to the impact, the deceased H. Lingaiah who was conductor in the Volvo K.S.R.T.C. Bus suffered fatal injuries and died at the spot and several other passengers suffered simple and grievous injuries.
The claimants herein are none other than the wife and children of deceased H. Lingaiah in the road traffic accident. It is the case of the claimants that, the deceased H. Lingaiah was aged about 54 years and working as Conductor at 4th Depot, K.S.R.T.C., Bangalore, drawing salary of Rs. 18,813/- per month and was the only earning member in the family and on account of his death, the family is in total financial distress and is left with no social and moral support and therefore, they have to be compensated reasonably, as the wife has to run the family single handedly and give education to the children who are prosecuting their studies.
On account of the death of the deceased H. Lingaiah in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 40,00,000/- against the K.R.T.C., its insurer and A.P.R.T.C. and the same was numbered as M.V.C. No. 4871/2010. The said claim petition had come up for consideration before the Tribunal on 8th February, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs. 15,14,983/-, with 6% interest per annum, and fixed the liability to indemnify the said amount on the part of the K.R.T.C. and its Insurer on the one part and A.P.R.T.C. on the other, at 50% each.
Not being satisfied with the quantum of compensation awarded by Tribunal, the claimants have filed the appeal, seeking enhancement of compensation and being aggrieved by the contributory negligence fixed on the part of the A.P.R.T.C. at 50%, the A.P.R.T.C. is in appeal before this Court, seeking to re-fix/modify the contributory negligence on the part of both the K.R.T.C. & A.P.R.T.C., by reducing the same, at least in the ratio of 80:20, to meet the ends of justice.
We have heard Shri. C.R. Ravishankar, learned counsel appearing for claimants and Shri. D. Vijaya Kumar, learned counsel appearing for A.P.R.T.C., gone through the grounds urged in the memorandum of appeals filed by both claimants and A.P.R.T.C. carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.
Shri. C.R. Ravishankar, learned counsel appearing for claimants vehemently submitted that, the Tribunal grossly erred in not awarding reasonable compensation on account of the untimely death of the deceased H. Lingaiah, who was aged about 54 years and working as Conductor in K.S.R.T.C. Bus which was involved in the accident, drawing salary of Rs. 18,813/- per month, as per Ex. P13. The Tribunal, without any justification or cogent reasons, has deducted 10% towards income tax on the whole gross salary of the deceased instead of calculating income tax after deducting the statutory exemption. Therefore, he submitted that reasonable enhancement may be made towards loss of dependency and also towards conventional heads, by modifying the impugned judgment and award passed by Tribunal.
As against this, Shri. D. Vijaya Kumar, learned counsel appearing for A.P.R.T.C. vehemently submits that the Tribunal committed grave error and material irregularity, resulting in serious miscarriage of justice, in fixing contributory negligence in the ratio of 50:50, i.e. 50% on the part of the K.R.T.C. & its insurer on the one hand and 50% on the part of the A.P.R.T.C. on the other, when in fact, the driver of the K.R.T.C. Bus contributed more to the occurrence of accident. To substantiate his stand, he submitted that, in fact, the Bus belonging to A.P.R.T.C. was parked on the mud road on the high way from Bangalore to Hyderabad for the passengers to get down and attend the nature call. But, unfortunately, the driver of Lorry put the sudden brake and the driver of K.R.T.C., in order to avoid the accident, took the left turn and hit the hind portion of A.P.R.T.C. bus, without noticing the parked Bus and thus caused the accident. In view of the sudden brake applied by the driver of the Lorry, which was in his front, the driver of K.R.T.C., in order to avoid the accident, took left turn and hit the hind portion of A.P.R.T.C. bus, without noticing the parked Bus parked on the mud road. Therefore, there is no much fault on the part of the driver of A.P.R.T.C. bus and there is 100% negligence on the part of the driver of K.R.T.C. bus and therefore, the contributory negligence fixed in the ratio of 50:50 is liable to be set aside and the same may be re-fixed or modified in the ratio of 80:20, i.e. 80% on the part of the driver of K.R.T.C. Bus and its insurer and 20% on the part of the driver of A.P.R.T.C. Bus.
As against this, Shri. Janardhana Reddy, learned counsel appearing for United India Insurance Company Limited vehemently submitted that the contributory negligence fixed by Tribunal in the ratio of 50:50 is just and proper since the driver of both the Buses contributed equally to the occurrence of accident, inasmuch as the driver of the A.P.R.T.C. Bus also had parked the vehicle in the mud road without giving any indications, whatsoever or with parking lights etc. Further, the driver of the said A.P.R.T.C. Bus had parked the vehicle to enable the passengers to get down and attend to nature call. The place where he had parked was not meant for the said purpose, that too without any indications for having parked on the road in the highway.
To substantiate the said submission, he is quick to point out and submit that the police, after due investigation has filed the charge sheet against the drivers of both the Buses. That itself is a conclusive proof to hold that the drivers of both the Buses contributed equally to the occurrence of accident. Therefore, he submitted that the negligence fixed in the ratio of 50:50 is just and proper and does not call for interference.
After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these appeals are:
I] Whether the Tribunal is justified in fixing the contributory negligence in the ratio of 50:50 on the part of the drivers of both K.R.T.C. Bus and A.P.R.T.C. Bus?
II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?
Re-Point I] : Occurrence of accident and the resultant death of the deceased H. Lingaiah are not in dispute. It is also not in dispute that the claimants are none other than the wife and two children. It is further not in dispute that the deceased was working as conductor in K.R.T.C. Bus which was involved in the accident. It is further not in dispute that the driver of the A.P.R.T.C. Bus had parked his vehicle on the mud road in the National Highway, to enable the passengers to get down from the Bus and to attend nature call, without giving any parking signal, whatsoever. Further, it is not the case of the counsel appearing for A.P.R.T.C. that it was a bus stop or the bus was entitled to stop there. Therefore, there is no doubt that, the driver of the said bus also has contributed to the occurrence of accident. But, it should be seen that, the driver of K.R.T.C. bus, has taken sudden left turn, in order to avoid the accident, since the driver of Lorry applied sudden brake and thus contributed to the occurrence of accident. The Tribunal, at internal page 18 of its judgment has observed that, the dark back ground, the dull body colour of the A.P.R.T.C. Bus and the absence of lights at the spot must have rendered it impossible for the driver of the K.R.T.C. Volvo bus to have noticed the A.P.R.T.C. Bus in time to avoid it. There could be no other probable reason as to why the K.R.T.C. Volvo Bus driver should go and dash against a stationed A.P.R.T.C. bus when there was so much space available at the right side on the road. There is no doubt that, if the parking lights of the A.P.R.T.C. bus were kept on, the driver of the K.R.T.C. Volvo bus would have certainly noticed the said A.P.S.R.T.C. bus from fairly a good distance and avoided the impact. Therefore, it is clear that the driver of A.P.R.T.C. Bus has violated the statutory provisions governing the parking of vehicles without keeping the parking lights on. The said finding of the Tribunal in coming to the conclusion that there is composite negligence on the part of the drivers of both the buses is just and proper. However, the Tribunal slipped into an error in noting that both of them contributed equally to the occurrence of accident. As per the IMV Report, the damage is caused to both the Buses and as per the sketch, which is made available to the Court during the course of arguments by the counsel appearing for Insurer, it is crystal clear regarding the manner in which the accident has occurred. Further, the police after due investigation, have filed the charge sheet against the drivers of both the Buses. But, the driver of K.R.T.C. bus has contributed more to the occurrence of accident, inasmuch as, in spite of having enough space, he has gone and dashed against the hind portion of the A.P.R.T.C. Bus, since the driver of Lorry, who was in his front, applied sudden brake and the driver of K.R.T.C. Bus took left turn in order to avoid the accident and dashed against the hind portion of the parked A.P.R.T.C. bus on the mud road. This shows that the driver of K.R.T.C. Bus was more rash and negligent in driving the said bus and contributed more to the occurrence of accident. Therefore, after re-appreciation of the oral and documentary evidence, we answer the point No. l in the ''Negative'' and hold that the drivers of both the Buses contributed to the occurrence of accident and modify the contributory negligence, by re-fixing the contributory negligence in the ratio of 75:25, i.e. 75% on the part of the driver of K.R.T.C. Bus bearing Registration No. KA-01/F-8040 and 25% on the part of the driver of A.P.R.T.C. Bus bearing Registration No. AP-28/Z-2651, to safeguard the interest of both parties and to meet the ends of justice, as against the contributory negligence fixed by the Tribunal in the ratio of 50:50, to meet the ends of justice.
Re-Point II] : So far as quantum of compensation awarded by Tribunal is concerned, occurrence of accident and the resultant death of deceased H. Lingaiah, who was working as conductor in 4th Depot, K.S.R.T.C., Bangalore. It is also not in dispute that the deceased H. Lingaiah was aged about 53 years as on the date of accident, drawing gross salary of Rs. 18,813/- per month or Rs. 2,25,756/- per annum. From the said sum, the permissible deductions are income tax and professional tax. But, learned counsel appearing for both the parties, considering the facts and circumstances of the case, fairly submitted that, the net income of the deceased may be re-assessed at Rs. 2,23,356/-, after deducting income tax and 1/3rd may be deducted towards personal expenses of the deceased. Accordingly, the net annual income is re-assessed at Rs. 2,23,356/-. Out of this, since the number of dependents are three, 1/3rd is to be deducted towards the personal and living expenses of the deceased as per Sarla Verma''s case (supra). If 1/3rd (i.e. Rs. 74,452/-) is deducted from it, the net income comes of Rs. 1,48,904/-. Further, as the deceased was aged about 53 years at the time of accident, the appropriate multiplier applicable is ''11'', in view of the aforesaid judgment. Thus, the compensation towards loss of dependency would work out to Rs. 16,37,944/- (i.e. Rs. 1,48,904/- x ''11'') as against Rs. 14,89,983/- awarded by Tribunal.
Further, so far as compensation awarded towards conventional heads, i.e. loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses is concerned, we are of the considered view that a sum of Rs. 25,000/- awarded under the conventional heads is on the lower side and we award a sum of Rs. 50,000/- towards loss of consortium, Rs. 30,000/- towards loss of love and affection, Rs. 10,000/- towards loss of estate and Rs. 10,000/- towards transportation of dead body and funeral expenses as against Rs. 25,000/- awarded by Tribunal. Thus, the total compensation works out to Rs. 17,37,944 as against Rs. 15,14,983/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 2,22,961/-. Accordingly, we answer point No. II] also in the ''Negative''. In the light of the facts and circumstances of the case, as stated above, the appeals filed by the claimants as well as A.P.R.T.C. are allowed in part.
The impugned judgment and award dated 8th February 2012, passed in MVC No. 4871/2010, by the XII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified.
The contributory negligence fixed on the drivers of both the buses in the ratio of 50:50 is hereby set aside and the same is hereby modified, by re-fixing contributory negligence in the ratio of 75:25, i.e. 75% on the part of the driver of K.R.T.C. Volvo Bus, bearing Registration No. KA-01/F-8040 and 25% on the part of the driver of A.P.R.T.C., bearing Registration No. AP-28/Z-2651, to meet the ends of justice.
The total compensation awarded by Tribunal is also modified, awarding compensation of Rs. 17,37,944/- as against 15,14,983/- awarded by Tribunal. The enhanced compensation comes to Rs. 2,22,961/-.
Accordingly, the K.R.T.C. and A.P.R.T.C. are directed to deposit the enhanced compensation with interest in the ratio of 75:25, within three weeks from the date of receipt of a copy of this judgment;
Out of the enhanced compensation of a sum of Rs. 2,22,961/-, a sum of Rs. 2,00,000/- shall he invested in Fixed Deposit, in the name of the first claimant - wife of deceased H. Lingaiah, in any Nationalized/Scheduled Bank, for a period of ten years, renewable for another ten years, with liberty reserved to her to withdraw the interest periodically;
Remaining Rs. 22,961/- with interest shall be released in favour of the first claimant, immediately on deposit by both the Corporations;
The statutory amount in deposit by A.P.R.T.C. in M.F.A. No. 5334/2012 is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
In view of disposal of main matter, I.A. I/2012 for stay filed in M.F.A. No. 5334/2012 does not survive for consideration and is accordingly, disposed of as having become infructuous.