The Divisional Controller K.S.R.T.C. vs Lakshmamma and Others

N.K. Patil

Though this matter, is posted for admission, with the consent of the learned counsel for the parties, the same is taken up for final disposal.

This appeal by the Corporation is directed against the impugned judgment and award dated 27th December 2008, passed in MVC No. 174/2008, by the Civil Judge(Sr.Dn) and Additional Motor Accident Claims Tribunal, Belur, (for short. Tribunal''), for reduction of compensation on the ground that, the compensation of Rs. . 4,50.000/- awarded in favour of the claimants as against their claim for Rs. . 15.00 Lakhs, is excessive and is on the higher side and is therefore, liable to be reduced.

The facts in brief are that, claimant No. 1 is the wife, claimant Nos.2 and 3 are the children and claimant No.4 is the mother of the deceased late Kumara. They filed the claim petition u/s 166 of the Motor Vehicles Act, contending that, the deceased met with a road traffic accident, at about 6:00 P.M. on 13-07-2007, while going on Belur-Mudigere Road, In Bajaj M-80 bearing No.TN-07/K-0673 on left side of the road. At that time, the driver of the KSRTC bus bearing No.KA-18/F-0078, came in a rash and negligent manner and dashed against the deceased, on account which he sustained grievous injuries and immediately he was shifted to Government Hospital, Hassan and unfortunately, he succumbed to the same during treatment, on the same day.

It is the case of the claimants that, the deceased was hale and healthy prior to the date of accident, which resulted in his death and that, he was doing gujari business, earning a sum of Rs. . 6.000/- per month and was contributing the entire sum towards the family requirements and in view of his untimely death, the family is displaced and they are in great financial distress and have lost the only hope and aspiration in life and therefore, they have to be compensated reasonably.

On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. . 15.00 lakhs against the driver of the offending vehicle and the Corporation. The said claim petition had come up for consideration before the Tribunal on 27th December, 2008. 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 a sum of Rs. . 4,50,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Corporation is in appeal before this Court, seeking reduction of compensation.

I have gone through the grounds urged in the memorandum of appeal carefully, perused the impugned judgment and award passed by Tribunal and heard the learned counsel for Corporation as well as the counsel for claimants.

Learned counsel appealing for appellant Corporation vehemently submits that the Tribunal has erred in not fixing any contributory negligence on the part of the deceased rider of the motor cycle, when in fact, he also contributed to the occurrence of accident. Further she submits that the Tribunal is not justified in taking the age of the deceased as 28 years, in the absence of any evidence to that effect. Therefore, she submits that the impugned judgment and award is liable to be modified, by reducing the compensation.

As against this, learned counsel appearing for claimants respondents submits that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has awarded just and reasonable compensation and recorded a clear finding of fact., at paragraphs 11 and 13 of its judgment holding that, due to rash and negligent driving by the driver of the BMTC bus, belonging to the appellant Corporation, the accident; has occurred and that the jurisdictional police have registered the case and filed the charge sheet against the driver of the bus and there is no contributory negligence on the part of the deceased rider of the motor cycle. Hence, the impugned judgment and award does not call for interference.

Further, so far as the contention of the learned counsel for appellant: Corporation that the Tribunal has erred in taking the age of the deceased as 28 years, is concerned, learned counsel for claimants respondents submits that the Tribunal has rightly taken the age of the deceased on the basis of the post mortem report, in the absence of any documentary evidence on behalf of the deceased. Therefore, the said submission of the learned counsel for appellant Corporation is also liable to be rejected and interference by this Court in the impugned judgment and award passed by Tribunal is uncalled for.

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. I am of the considered view that the Tribunal has rightly allowed the claim petition filed by claimants and awarded a sum of Rs. . 4,50,000/- under different heads along with interest at 6% per annum. The Tribunal, after critical evaluation of the oral evidence of PWs 1 and 2 and DW1 and documentary evidence at Exs.P1 to P8 and Exs.D1 to D4(a), and having regard to the age, avocation and the year of accident, has rightly assessed the monthly income of the deceased at Rs. 3,000/- In fact, the said monthly income assessed is on the lower side, if the year of accident is strictly taken into consideration. But in the absence of any cross objections by the claimants, I am of the considered view that the Tribunal has rightly arrived at the compensation payable towards loss of dependency, after deducting 1/4th towards the personal expenses of the deceased and after adopting proper multiplier and rightly awarded compensation towards conventional heads also. The same is in consonance with the well settled law laid down by Apex Court, in catena of decisions. Hence, interference in the impugned judgment and award is uncalled for.

So far as the submission of the learned counsel appearing for appellant Corporation that the Tribunal erred in not fixing the contributory negligence and in taking the age of the deceased as 28 years, is concerned, I am of the view that the Tribunal, with regard to both the said aspects, has recorded a clear finding of fact and field, after critical evaluation of the oral and documentary evidence that the jurisdictional police have registered the case against the driver of the offending bus and charge sheet is also filed against him and that the accident occurred on account of rash and negligent driving by the driver of the offending bus belonging to the appellant: Corporation, under the principles of res ipsa loquitur. Hence, interference in the same is uncalled for.

So far as her submission regarding assessing the age of the deceased as 28 years is concerned, 1 am of the view that the Tribunal is right in assessing the said age of the deceased, on the basis of the contents of the post mortem report. In the absence of any credible documentary proof, the age mentioned in the post mortem report, would be conclusive proof to ascertain the age. Therefore, I do not find any illegality or unreasonableness in assessing the age of the deceased as 28 years nor I find any error in the impugned judgment and award passed by Tribunal.

In the light of the facts and circumstances of the case, stated above, the appeal filed by appellant/ Corporation is liable to be dismissed as devoid of merits. Accordingly, it is dismissed.

The amount, if any in deposit by the Corporation shall be transmitted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly.