Thimmaiah vs The Managing Director KSRTC

Rathnakala, J—This appeal by the claimant/appellant is directed against the impugned judgment and award dated 14.9.2012 passed in M.V.C. No. 2619/2011 on the file of the Member, Principal M.A.C.T. & Chief Judge, Court of Small Causes, Bangalore (for short, ''the Tribunal'').

The Tribunal by the impugned judgment and award awarded a compensation of Rs. 2,15,586/- with interest @ 6% per annum, fixing contributory negligence of the deceased at 50%.

The appellant - claimant filed a petition under Section 163-A of the Motor Vehicles Act (''the Act'' for short) before the Tribunal, claiming compensation of Rs. 20 lakhs, on the death of his son late Sunil Kumar in the vehicular accident that occurred on 12.4.2011 at about 9.30 a.m. at Narasandra village, Magadi Taluk on Bangalore Main Road. His case was, while his son was riding the motor cycle bearing registration No. KA-50/K-2986 from his residence towards Narasandra village slowly and carefully, the offending vehicle KSRTC bus bearing registration No. KA-19/F-2800 came from opposite direction on wrong side and dashed against the motor cycle; resultantly Sunil Kumar died at the spot. He was aged 19 years, an employee of Kamsri Flex Form Private Limited and was drawing a salary of Rs. 40,000/- per annum.

The petition was contested by the respondent/Corporation. After holding enquiry and on overall consideration of the material on record, the Tribunal though quantified the compensation for Rs. 4,31,172/-, by considering the role of the deceased himself in the accident, fixed 50% of the contributory negligence on him and awarded Rs. 2,15,586/- with interest @ 6% per annum payable by the Corporation.

Sri. R. Chandrashekar, learned Counsel appearing for the appellant/claimant submits that, since the claimant had filed the claim petition under Section 163-A of the Act, he was not required to plead and prove the negligence. In that view of the matter, the Tribunal ought not to have considered the contention of contributory negligence. The finding of the Tribunal in attributing 50% of the contributory negligence against the deceased himself is illegal and against the evidence on record. The amount awarded under the head of loss of dependency is on the lower side. The interest awarded is also on a lower side, considering the catena of judgments of this Court and also the Apex Court. Hence, the judgment and award of the Tribunal may be modified by bailing out the deceased for the contributory negligence of 50% and just and reasonable compensation may be awarded.

Relying on a judgment of the Apex Court in the matter of Khenyei -vs- New India Assurance Co. Ltd. & Ors. in Civil Appeal No. 4244/2015 wherein the Apex Court has ruled that it is open for a claimant to recover entire compensation from one of the joint tort feasors, learned Counsel submits that, there was no impediment for the Tribunal to award compensation payable by the Corporation.

Sri. F.S. Dabali, learned Counsel for the appearing for the respondent/Corporation submits that the petition having been filed under Section 163A of the Act, there cannot be any award beyond what is contemplated under Schedule-II of the Act. Since it is an accident involving two vehicles, the Corporation is liable to pay only 50% of the award amount, in view of the judgment of this Court in M/s. United India Insurance Co. Ltd. -vs- Radha A. Kamath & Others reported in 2011(4) AIR Kar R 292.

In the light of the above rival submission and on perusal of the impugned judgment and award, following point arises for our consideration:

"Whether the compensation awarded by the Tribunal is inadequate calling for enhancement?"

The claim petition having been filed under Section 163-A of the Act, a special provision, the payment of compensation being on structured formula basis, it was the mandate on the Tribunal to go by the requirements of Section 163A of the Act. Unlike the claim under Section 166 of the Act where the claimant is obliged to prove negligence of the driver of the offending vehicle, the claimant herein was not obliged to plead and prove negligence of driver of the offending vehicle. Section 163A of the Act reads thus:

"163A. Special provisions as to payment of compensation on structured formula basis

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule".

Thus it is clear that, when the accident has been proved, the owner or the insurer of the vehicle is bound to pay compensation in accordance with the structured formula enumerated in Second Schedule to the Act. The Co-ordinate bench of this Court in Radha A. Kamath''s case (supra) has held that, the provision of Section 163A of the Act discloses that in a case of composite negligence of two vehicles, the owners and insurers of both the vehicles would be liable to pay the compensation. Admittedly, it is an accident involving two vehicles and for any compensation under Section 163A of the Act, the liability shall be borne by owner/insurer of both the vehicles in the light of the above judgment of this Court.

While quantifying the compensation, the Tribunal has assumed the annual income of the deceased at Rs. 40,000/-, which is the maximum income contemplated in Schedule-II to Section 163A of the Act. Accordingly, in respect of death of victims, whose age ranges between 15 to 20 years, the compensation to be awarded is Rs. 7,60,000/-. By deducting 1/3rd towards personal expenses of the deceased, it comes to Rs. 5,06,667/-. That is the loss of dependency to the dependant claimant. Further, the clamant is entitled for Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate. The Tribunal under mistaken notion had attributed 50% of contributory negligence on the deceased himself and cut down the compensation by 50% which is not in accordance with the scheme of Section 163-A of the Act. The entitlement of the claimant/appellant for the compensation on the death of his son as worked supra is Rs. 5,11,167/- as against Rs. 2,15,586/- awarded by the Tribunal. Hence, there would be enhancement of Rs. 2,95,581/-.

In view of the judgment of the Apex Court in Khenyei''s case (supra), the claimant can recover the entire compensation from any of the joint tort feasors. In the case on hand, since the owner/Insurer of the motor cycle on which the deceased was traveling is not arrayed as respondent, he is entitled to recover the entire compensation from the respondent/Corporation. In the light of the judgment in Radha A. Kamath''s case (supra), the respondent/Corporation is at liberty to recover 50% of the compensation amount so paid from the owner of the motor cycle bearing registration No. KA-50/K-2986.

The Tribunal has awarded interest @ 6% on the compensation, which is very meager having regard to the trend in the recent judgments of the Apex Court. Hence, the claimant is entitled for interest @ 9% per annum on the entire compensation amount of Rs. 5,11,167/-.

Accordingly, the appeal is allowed in part.

The judgment and award dated 14.9.2012 passed in M.V.C. No. 2619/2011 on the file of the Member, Principal M.A.C.T. & Chief Judge, Court of Small Causes, Bangalore, is hereby modified, awarding additional compensation of Rs. 2,95,581/- with interest @ 9% per annum on the entire compensation of Rs. 5,11,167/- from the date of petition till realization.

The respondent/Corporation is directed to deposit the enhanced compensation amount along with interest at 9% p.a. on the entire compensation from the date of petition till the date of realization, within 3 weeks from the date of receipt of the copy of this judgment and award.

Liberty is reserved to the respondent/Corporation to recover 50% the compensation amount from the owner/insurer of the motor cycle bearing registration No. KA-50/K-2986.

Out of the enhanced compensation, Rs. 2,00,000/- shall be deposited in the name of the appellant in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank for a period of ten years and renewable for another ten years, with liberty to him to withdraw the interest accrued on the entire compensation of Rs. 5,11,167/-.

Remaining amount of Rs. 95,581/- with proportionate interest shall be released in favour of the appellant.

Office to draw the award, accordingly.