Sri Lakshminarasappa vs The Managing Director

N.K. Patil, J.—These two appeals respectively by the claimants and the Corporation are directed against the same judgment and award dated 12th March, 2015, passed in MVC No. 108 of 2014, by the Additional Senior Civil Judge and Motor Accident Claims Tribunal-XIII, Madhugiri (for short, ''Tribunal'').

While the claimants have filed the appeal, seeking enhancement of compensation on the ground that compensation of Rs. 11,53,000/- awarded by Tribunal on account of the death of the deceased Giriyamma is on the lower side and the Tribunal is justified in fixing the entire negligence on the part of the driver of the KSRTC Bus, the Corporation is in appeal for substantial reduction of compensation and also for fixing reasonable negligence on the part of the rider of the motorcycle also, by modifying the impugned judgment and award passed by Tribunal.

The facts of the case as stated in the claim petition are that, at about 3.30 p.m., on the ill-fated day, i.e. on 1-11-2013, when the deceased Giriyamma was proceeding as a pillion rider along with one Umesh on the motorbike Star City bearing Registration No. AP-02/N-2264 towards Pavagada on Madhugiri Pavagada Road, near the Bus shelter of A.R. Roppam on the said road, a KSRTC Bus bearing Registration No. KA-06/F-755 plying from the opposite direction from Pavagada, being driven at a high speed, in a rash and negligent manner, dashed against the motorbike in which the deceased was riding pillion. Due to the impact, the rider and also the deceased pillion rider sustained fatal injuries and succumbed to the same at the spot. The Pavagada Police registered a criminal case against the driver of the said KSRTC Bus.

The claimants herein are none other than the husband, minor children and parents-in-law of deceased Giriyamma in the road traffic accident. It is the case of the claimants that, the deceased was the only earning member in the family and looking after the in-laws also and on account of her untimely and unnatural 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 they have to look after the minor children without the love and affection of the mother.

On account of the death of the deceased Giriyamma in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 16,00,000/- against the Corporation and the same was numbered as M.V.C. No. 108 of 2014. The said claim petition had come up for consideration before the Tribunal on 12th March, 2015. 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. 11,53,000/-, with 6% interest per annum, fixing the entire negligence on the part of the driver of the KSRTC Bus belonging to the Corporation. Not being satisfied with the quantum of compensation awarded by Tribunal, the claimants are in appeal for enhancement of compensation and being aggrieved by the non-fixing of any negligence on the part of the rider of the motorcycle and also reduction of compensation, the Corporation is in appeal.

We have heard Sri G.S. Venkat Subba Rao, learned Counsel appearing for claimants and Sri K. Nagaraja, learned Counsel appearing for Corporation, gone through the grounds urged in the memorandum of appeals filed by claimants as well as Corporation and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.

Learned Counsel appearing for claimants, Sri G.S. Venkat Subbarao, at the outset vehemently submitted that, the Tribunal grossly erred in not awarding reasonable compensation towards loss of dependency, for the reason that, the deceased was aged about 35 years, doing household work and also flower vending and maintaining the entire family consisting of her husband, two minor children and also in-laws. But, the Tribunal has assessed the income of the deceased at only Rs. 6,000/- per month. The same cannot be sustained and liable to be reassessed as the accident is of the year 2013. Therefore, he submitted that income of the deceased may be reassessed between Rs. 9,000/- and Rs. 9,500/- per month, deducting �th towards the personal and living expenses of the deceased, and adopting multiplier of ''16'', taking the age of the deceased, reasonable compensation be awarded towards loss of dependency.

He further submitted that the Tribunal also erred in not awarding reasonable compensation towards conventional heads such as loss of estate and loss of love and affection as the claimants are five in number. Therefore, reasonable compensation be awarded under the said heads by modifying the impugned judgment and award passed by Tribunal.

Regarding the submission of the learned Counsel appearing for Corporation that reasonable contributory negligence is to be fixed on the part of the rider of the motorcycle also, he submitted that the Tribunal, after critical evaluation of the entire material available on file including the oral and documentary evidence, such as IMV report, nature of injuries caused to both the vehicles etc. has recorded a specific finding of fact at internal page 7 of its judgment that there has been no document to show about the negligence on the part of the rider of the motorcycle. Therefore, the Tribunal is highly justified in fixing the entire negligence on the part of the driver of the KSRTC Bus and interference in the same is uncalled for.

Regarding rate of interest awarded by Tribunal at 6% per annum, he submitted that, in the light of the decision of the Hon''ble Apex Court and this Court in catena of decisions rate of interest may be modified at least to 9% to 10% per annum, from the date of petition till the date of realisation.

Per contra, Sri K. Nagaraja, learned Counsel appearing for Corporation vehemently submitted that, the Tribunal committed a grave error and material irregularity, resulting in serious miscarriage of justice, in fixing entire negligence on the part of the driver of the KSRTC Bus, when in fact, the rider of the motorcycle also contributed to the occurrence of accident. To substantiate the said submission, he pointed out that the Tribunal failed to consider the spot sketch at Ex. P. 6, and the said document has not been properly appreciated by the Tribunal. Further considering the nature of damage caused to both the vehicles and also the contents of Ex. P. 6, reasonable contributory negligence may be fixed on the part of the rider of the motorcycle also, by modifying the impugned judgment and award passed by Tribunal.

Regarding quantum of compensation awarded by Tribunal, he vehemently submitted that the quantum of compensation awarded by Tribunal towards loss of dependency is on the higher side for the reason that the parents-in-law cannot be considered as the dependents and therefore, ⅓rd may be deducted towards the personal and living expenses of the deceased and the impugned judgment and award be modified accordingly.

After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal, after going through the grounds urged in the memorandum of appeal filed by claimants as well as Corporation and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these two appeals are:

(I) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the KSRTC 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 Giriyamma in the road traffic accident that occurred between the two vehicles, i.e. Motorcycle Star City bearing Registration No. AP-02/N-2264 and KSRTC Bus bearing Registration No. KA-06/F-755 are not in dispute. It is also not in dispute that the claimants are none other than the wife, two minor children and parents-in-law of deceased.

To prove the accident and also the negligence, the claimants have examined P.Ws. 1 and 2 and got marked Exhibits P.1 to P. 10. The spot panchanama is Ex. P. 4 which describes the spot as Pavagada-Tumkur Road which is said to be running North to South direction with a width of 14 feet, from east to west direction it is said to be 5 ft. mud road on either side. It is said to be bounded east by private land; west by land of Shivanna North and South by Pavagada-Tumkur Road. The spot sketch prepared by the police is marked as Ex. P. 6; inquest report is marked as Ex. P. 5 and IMV report is marked as Ex. P. 7, which shows the damage caused to the KSRTC Bus and also the two wheeler:

Damages caused to KSRTC Bus bearing Registration No. KA-06/F-755;

Front right side headlight, indicator, bumper and foot board damaged;

Damages caused to motorbike bearing Registration No. AP-02/N-755;

Front headlight, mask, odometer, ignition switch, mudguard, wheel backside indicator, petrol tank and handle damaged;

Front backside indicator damaged;

Front number plate and cross guard damaged;

Foot brake bent;

Rear left side indicator damaged;

Front backside fork and horn damaged; and

Battery and battery box damaged.

After going through the various damages caused to the aforesaid two vehicles coupled with other documentary evidence, the Tribunal came to the conclusion that the accident occurred on account of the gross negligence on the part of the driver of the KSRTC Bus alone and there is no document to show the negligence on the part of the rider of the motorcycle for causing the accident. The said reasoning given by Tribunal at internal pages 7 and 8 of its judgment is just and proper and does not call for interference by this Court. Accordingly, we confirm the same and answer Point No. (I) in the ''affirmative''.

Re: Point (II) . - So far as quantum of compensation awarded by Tribunal is concerned, we are of the view that the compensation awarded towards loss of dependency and also conventional heads is on the lower side and liable to be redetermined. Hence, we answer the Point No. (II) in the ''Negative'' and proceed as follows:

Occurrence of accident at about 3:30 p.m. on 1-11-2013 and the resultant death of deceased Giriyamma in the said accident are not in dispute. It is also not in dispute that the claimants are none other than the husband, two minor children and parents-in-law of deceased. It is further not disputed that the deceased was aged about 35 years, doing flower vending business and also household work and looking after the welfare of the family consisting of husband, two minor children and in-laws.

After going through the entire original records available on file, it is seen that the Tribunal has assessed the monthly income of the deceased at Rs. 6,000/-. The same is on the lower side as the accident is of the year 2013. Therefore, considering the facts and circumstances of the case, age and avocation of the deceased, year of accident, etc., we reassessed the monthly income of the deceased at Rs. 9,000/-. Out of this, �th is to be deducted towards the personal and living expenses of the deceased as per Smt. Sarla Verma''s case. Accordingly, if �th (i.e. Rs. 2,250/-) is deducted from it, the net income comes to Rs. 6,750/-. Further, the husband of the deceased was aged about 40 years at the time of accident. Therefore, the appropriate multiplier applicable is ''15'', in view of the aforesaid judgment, as against ''17'' adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 12,15,000/-(i.e. Rs. 6,750/- x 12 x ''15'') as against Rs. 9,18,000/- awarded by Tribunal.

Further, so far as compensation awarded towards conventional heads, it is seen that the Tribunal is justified in awarding a sum of Rs. 1,00,000/-towards loss of consortium and Rs. 25,000/- towards funeral and transportation expenses. Hence, interference in the same is uncalled for. However, so far as other heads is concerned, the compensation awarded towards loss of estate and loss of love and affection is on the lower side and liable to be redetermined. Having regard to the law laid down by the Hon''ble Apex Court and this Court in catena of decisions, we award a sum of Rs. I,50,000/- towards loss of love and affection against Rs. 1,00,000/-; and Rs. 25,000/- towards loss of estate as against Rs. 10,000/- awarded by Tribunal.

Thus the total compensation works out to Rs. 15,15,000/- as against Rs. 11,53,000/- awarded by Tribunal. Thus there would be enhancement of compensation by a sum of Rs. 3,62,000/-.

Further, as rightly pointed out by learned Counsel appearing for claimants, the rate of interest awarded by Tribunal at 6% per annum is on the lower side, as the accident has occurred on 1-11-2013. Therefore, as per the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions and also considering the facts and circumstances of the case, we deem it fit and proper to award rate of interest at 9% per annum, on the enhanced compensation.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Corporation is dismissed as devoid of merits.

The impugned judgment and award dated 12th March, 2015, passed in MVC No. 108 of 2014, by the Additional Senior Civil Judge and Motor Accident Claims Tribunal-XIII, Madhugiri, is hereby modified, awarding compensation of Rs. 15,15,000/- as against Rs. 11,53,000/- awarded by Tribunal. Thus, there would be enhancement of compensation by a sum of Rs. 3,62,000/- with 9% interest per annum from the date of petition till the date of realisation;

The Corporation is directed to deposit the enhanced compensation of Rs. 3,62,000/-, with interest at 9% per annum, within a period of three weeks from the date of receipt of a copy of this judgment;

Out of the enhanced compensation of Rs. 3,62,000/-, Rs. 1,50,000/- each with proportionate interest shall be invested in Fixed Deposit, in the names of the second and third claimants-children of deceased in any Nationalised/Scheduled/Grameena Bank, till they attains the age of 30 years, with liberty reserved to the father and natural guardian to withdraw the periodical interest for their welfare till they attain the age of 21 years and from 22 years to 30 years, the second and third claimants are entitled to withdraw the interest periodically;

Remaining sum of Rs. 62,000/- with proportionate interest shall be released in favour of the first claimant-husband of deceased, immediately on deposit by the Corporation;

The amount in deposit by the Corporation in M.F.A. No. 4466 of 2015 is directed to be transmitted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly.