The Divisional Controller, K.S.R.T.C. and Others vs V. Shantamma and Others

N.K. Patil, J—These appeals by the Corporation and by the claimants respectively, are directed against the same impugned judgment and award dated 18th September 2013, passed in MVC No. 113/2012, by the Principal District Judge and Motor Accident Claims Tribunal, Kolar, (for short ''Tribunal'').

The Tribunal by its judgment and award, has awarded a sum of Rs. 4,45,000/- under different heads with interest at 6% per annum from the date of petition till its deposit, fixing entire liability on the part of the Corporation as against the claim of the claimants on account of the death of Sri. T. Munirathnam.

It is the case of the Corporation that, the quantum of compensation awarded by the Tribunal is on the higher side and that the Tribunal has erred in not fixing any negligence on the part of the driver of the Lorry bearing Reg. No. KA.02.D.5808, on the ground that chargesheet is filed against the drivers of both the vehicles. Whereas, it is the case of the claimants that, the quantum of compensation and the rate of interest awarded by the Tribunal is inadequate and it requires to be enhanced reasonably.

In brief, the facts of the case are:

"The claimants are the wife and children of the deceased. On account of the death of the deceased Sri. T. Munirathnam in the road traffic accident, claimants have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation, contending that, on 9.3.2012 deceased was allotted the route of Bangalore-Tirupati and he was traveling as a Conductor in KSRTC bus bearing Reg. No. KA.07.F.1479 and the said bus left Tirupati on 10.3.2012 towards Bangalore. The driver of the bus one Sri. Venkatesh was driving the bus in a rash and negligent manner and when the bus came between Ramasandra and Seesandra village gate of Kolar-Mulbagal National Highway at about 6.30 a.m., dashed the same against a stationed lorry bearing Reg. No. KA.02.D.5808 parked on the road without putting any parking lights or any barricade to give caution for the oncoming vehicles. Due to which, deceased suffered multiple grievous injuries and immediately, he was shifted to R.L. Jalappa Hospital, Kolar, for treatment and thereafter, he was shifted to Abhaya Hospital, Bangalore, on the Advice of the Doctors and he succumbed to the injuries in the hospital on 12.3.2012."

It is the further case of the claimants that, deceased was aged about 57 years, hale and healthy prior to the accident, working as Conductor in KSRTC and drawing the salary of Rs. 25,000/- per month. Due to his untimely death, claimants have suffered loss of dependency, love and affection, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence, has allowed the claim petition in part, awarding the compensation of Rs. 4,45,000/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit, fastening entire liability on the Corporation.

Being aggrieved by the said judgment and award, both the Corporation and the claimants have presented these appeals seeking appropriate reliefs as stated supra.

We have heard the learned counsel appearing for the Corporation and the learned counsel appearing for claimants in these appeals.

The submission of learned counsel Sri. D. Vijaya Kumar, appearing for Corporation, is that, the Tribunal has committed an error in fixing entire negligence on the part of the driver of the bus belonging to the Corporation without fixing any negligence on the part of the driver of the Lorry bearing Reg. No. KA.02.D.5808 as two vehicles were involved in the accident, charge sheet is filed against the drivers of both vehicles and therefore, there is equal negligence on the part of the drivers of both the vehicles. To substantiate the said submission, he has taken us through the material on record and submitted that, the contents of Ex. P1-FIR and Ex. P7-Chargesheet show that, the complaint is given against the driver of the lorry and also against the driver of KSRTC bus and the police authorities, after due investigation have filed a chargesheet against the drivers of both the vehicles viz., KSRTC bus bearing Reg. No. Reg. No. KA.07.F.1479 and the lorry bearing Reg. No. KA.02.D.5808. Further, he has pointed out and submitted that, there is equal negligence on the part of the driver of the Lorry since the lorry was being parked on the southern side of the road and it is by the side of the road divider without any parking lights, signal or indication put by its driver and if he has parked the lorry following the traffic rules and regulations or by giving indication, the driver of the bus might have avoided the accident. But this aspect of the matter has not been considered or appreciated and has recorded the finding that, since the accident has occurred at 6.30 a.m. in the month of March 2012, sufficient light was available to identify the stationed vehicle on the road and from the evidence of PW2, it is clear that there is a negligence on the part of the driver of the bus as he has dashed against the parked lorry from behind. The said reasoning given by the Tribunal for fastening entire liability on the part of the driver of the bus belonging to the Corporation is contrary to the evidence on record. Therefore, he submitted that, negligence may be refixed in the ratio of 50% each on the part of the drivers of both the vehicles by setting aside the entire negligence fixed on the part of the driver of the bus.

Further, he submitted that, the compensation awarded by the Tribunal is on the higher side and the Tribunal ought to have taken the basic salary, after deducting 50% towards personal expenses as the wife is the only dependant and children are major and working in KSRTC and also taking into consideration that the deceased was hardly having three years of service and ought to have awarded reasonable compensation towards loss of dependency. Further he submits that, all other benefits have been extended by the Corporation and therefore, appellants do not deserve the deduction of 1/3rd towards personal and living expenses. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified.

Per contra, learned counsel appearing for the claimants inter-alia, vehemently submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and conventional heads and what is awarded is inadequate and requires to be enhanced reasonably. To substantiate the said submission, he submitted that, deceased was aged about 57 years, working as Conductor in the Corporation and drawing the salary of Rs. 14,302/- p.m. as per Ex. P8 and out of which, the permissible deduction is only towards Professional Tax and though the wife is the only dependant and as she is entitled for loss of dependency in entirety, 1/3rd may be deducted towards personal expenses of the deceased in the light of the judgments of the Apex Court and this Court. Further, he submitted that the compensation awarded by the Tribunal towards conventional heads and the rate of interest is on the lower side and is liable to be enhanced reasonably. Further, he has not disputed after going through the records available on file that, in fact, the chargesheet is filed against the drivers of both the vehicles and therefore, the same may be modified as rightly submitted by the Corporation.

Further, learned counsel Sri. B. Pradeep appearing for R3, inter-alia, contended and sought to substantiate that the impugned judgment and award passed by the Tribunal is just and reasonable and the reasoning given by the Tribunal is after due appreciation of the oral and documentary evidence available on file and therefore, interference by this Court is not called. However, he has not disputed the fact that the police authorities after due investigation have filed chargesheet against the drivers of both the vehicles and the contents of spot mahazar-Ex. P3.

After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:

"(i) Whether the Tribunal has justified in fixing entire liability on the part of the driver of the bus belonging to the Corporation?

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

Re. Point No. 1.:

The occurrence of the accident and the death of the deceased are not in dispute. The deceased was aged about 57 years, working as Conductor in KSRTC and the claimants are the wife and children. It is also not in dispute that, two vehicles were involved in the accident, viz., KSRTC bus bearing Reg. No. KA.07.F.1479 and the lorry bearing Reg. No. KA.02.D.5808, the said lorry was punctured and parked on the southern side of the road and it is by the side of the road divider. Further, it emerges from the material on record that, it is the allegation against the driver of the lorry that he has not switch on the parking lights of the said lorry, no barricades have been provided by giving signal to the oncoming vehicles. It is also not in dispute that, the bus in question in which the deceased was traveling as conductor was also coming from Mulbagal towards Bangalore. As per the evidence of PW2, the time of accident was at about 6.30 a.m. and the driver of the bus was driving the bus in a rash and negligent manner and dashed the bus against the parked lorry from its behind. But he has not whispered regarding the fact that lorry was parked with parking lights or any barricades have been provided to give signal to the on coming vehicles like branch of a tree or any other modes. Further, it is significant to note as rightly pointed out by the learned counsel appearing for the Corporation that, the jurisdictional Police authorities after due investigation have filed chargesheet against the drivers of both the vehicles. When the chargesheet is filed against the drivers of both the vehicles and it is a conclusive proof and therefore, the Tribunal ought to have fixed negligence in the ratio of 50% each on the drivers of both the vehicles to meet the ends of justice. Therefore, after re-appreciation of the oral and documentary evidence available on file and the contents of Ex. P3-Mahazar and Ex. P7-chargesheet, we hereby set aside the entire negligence fixed by the Tribunal on the part of the driver of the bus belonging to the Corporation and re-fix the liability in the ratio of 50% each, i.e. 50% on the part of the driver of the bus and 50% on the part of the driver of the Lorry and accordingly, we answer this point.

Re. Point No. 2:

The claimants are the wife and children of the deceased and they have filed a claim petition under Section 166 of M.V. Act claiming compensation on account of the death of the deceased in the road traffic accident. It is the case of the claimants that, deceased was aged about 57 years, hale and healthy prior to the accident, working as Conductor in KSRTC and drawing the salary of Rs. 14,302/- per month as per Ex. P8-salary certificate. After microscopic evaluation of the original records, it emerges from Ex. P8-salary certificate that, deceased was drawing the salary of Rs. 14,302/- per month and out of which, the only permissible deduction is only towards Professional Tax in the light of the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . Out of Rs. 14,302/-, if Rs. 150/- is deducted towards professional Tax, the remaining income comes to Rs. 14,152/- per month. Out of which, 1/3rd should be deducted towards the personal and living expenses of the deceased since there are three claimants and the dependant is the wife who is aged about 52 years. Out of Rs. 14,152/- per month, if 1/3rd ( Rs. 4,717/-) is deducted towards the personal expenses of the deceased, his net contribution to the family per month comes to Rs. 9,435/- and by accepting the multiplier of ''9'' adopted by the Tribunal since deceased was aged about 57 years as just and proper, we redetermine the loss of dependency at Rs. 10,18,980/-( Rs. 9,435/- X 12X 9) instead of Rs. 4,05,000/- awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case as referred above and following the judgment of the Apex Court and this Court, we award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- each to the claimant Nos. 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the claimants are entitled to the total compensation of Rs. 12,43,980/- instead of Rs. 4,45,000/- awarded by the Tribunal.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2012. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

There would be an enhancement of Rs. 7,98,980/- with interest at 9% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the Corporation and the appeal filed by the claimants are allowed in part.

The impugned judgment and award dated 18th September 2013, passed in MVC No. 113/2012, by the Principal District Judge and Motor Accident Claims Tribunal, Kolar, is hereby modified, by fixing negligence in the ratio of 50% each i.e. 50% on the part of the driver of the Bus belonging to the Corporation and 50% on the driver of the lorry and by awarding a sum of Rs. 7,98,980/- with interest at 9% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The Corporation and M/s. Shriram General Insurance Co., Ltd., Insurer of the lorry bearing Reg. No. KA.02.D.5808 are directed to deposit the compensation of Rs. 12,43,980/- with interest at 9% p.a., from the date of petition till its realization, in the ratio of 50% each, within three weeks from the date of receipt of the copy of this judgment.

Immediately on such deposit by the Corporation and by M/s. Shriram General Insurance Co., Ltd., out of the enhanced compensation of Rs. 7,98,980/-, a sum of Rs. 6,00,000/-, with proportion interest shall be invested in the Fixed Deposit in the name of the claimant No. 1, wife of the deceased, in any Nationalized or Scheduled or Grameena bank, for a period of 10 years and renewable by another 05 years, with liberty reserved to the claimant No. 1 to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 1,98,980/- with proportionate interest shall be released in favour of the claimant No. 1 immediately.

The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal forthwith.

Draw the award, accordingly.

In view of disposal of main matters, the relief sought by the Insurer in I.A. No. 2/2014 in M.F.A.NO.2752/2014 does not survive for consideration. Hence, it is disposed of as having become infructuous.

Learned counsel Sri. B. Pradeep, is permitted to file vakalath for R5-M/s. Shriram General Insurance Company Limited in M.F.A. No. 2752/2014, within four weeks from today.