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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE ASHOK S. KINAGI M.F.A. NO.4492 OF 2018 (MV-D) C/W M.F.A. NO.4669 OF 2018 (MV-I) M.F.A. NO.634 OF 2020 (MV-D) M.F.A. CROB NO.13 OF 2021 M.F.A. NO.4492 OF 2018 BETWEEN: 1. THE DIVISIONAL CONTROLLER
KSRTC, DAVANAGERE DIVISION
P.B. ROAD, DAVANAGERE-577 001
OWNER OF KSRTC BUS BEARING
REGISTERED NO.KA-17-F-1300. 2. THE MANAGING DIRECTOR
INTERNAL SECURITY FUND
KSRTC, SARIGE BHAVAN
SHANTHINAGAR, OLD KGID BUILDING
K.H. ROAD, BENGALURU-560 027
BOTH THE APPELLANTS ARE
REP. BY IT'S CHIEF LAW OFFICER. .... APPELLANTS (BY MR. F.S. DABALI, ADV.,)
2 AND: 1. K. SANTHOSH KUMAR
S/O K. SANATHKUMAR
OCC: ASSISTANT MANAGER IN
GRASIM INDUSTRIES LTD.,
KUMARAPATNAM
RANIBENNUR TALUK
HAVERI DISTRICT-581123. 2. S. SIDDANTH @ SIDDANTH S. JAIN
S/O K. SANTHOSH KUMAR
AGE 24 YEAR
B.E. GRADUATE. 3. S. SURABHI
D/O K. SANTOSH KUMAR
AGED ABOUT 16 YEARS
9TH STANDARD.
EARLIER, RESPONDENTS NO.1 TO 3 WERE
R/AT D1/9, GRASIM STAFF COLONY
KUMARAPATANAM, RANIBENNUR TALUK
HAVERI DISTRICT-581 123.
NOW, R/AT SRI. D. DEVARAJ URS LAYOUT
'A' BLOCK, 6TH CROSS
SANMATHI NILAYA, 1ST FLOOR
DAVANAGERE-577 001. 4. IRFANULLA BALAGAR
S/O ABDUL REHAMN SAB
AGED 35 YEARS
OCC:KSRTC BUS DRIVER
BEARING REGISTERED NO.KA-17-F-1300
R/O. KADARANAYAKANAHALLI
HARIHAR TALUK
DAVANAGERE DISTRICT-577 601. 5. K. KEERTHI KUMAR
S/O K. SANATH KUMAR
AGE 52 YEARS
DIRECTOR IN ELMECH ENGINEERING CO. LTD.
R/O. KIRANA, D.NO.36/13, 4TH CROSS
AMARJYOTHINAGAR, BANGALORE-560 040
OWNER OF CHEVROLET CAR
KA-02/MC-7340. 6. THE BRANCH/DIVISIONAL MANAGER/
OFFICE IN CHARGE
ICICI LOMBARD GENERAL INSURANCE CO. LTD
ICICI LOMBARD HOUSE, 414
VEERASAVAKAR MARG, NEAR SIDDAVINAYAKA TEMPLE
PRABHADEVI, MUMBAI-400 025
INSURER OF CHEVROLET CAR
BEARING NO.KA-02/MC-7340.
(POLICY NO.3001/89478771/00/000
COVER NOTE No.PS11279506
VALID PERIOD FROM 26-04-2014 TO 25-04-2015). ... RESPONDENTS (BY MR. N. SUKUMAR JAIN, ADV., FOR R1 TO R3 MR. H.N. KESHAV PRASHANTH, ADV., FOR R5 V/O DTD:29-03-2019 NOTICE TO R4 IS C/W R3 MINOR) - - - THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2018, PASSED IN MVC NO.146/2016, ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE & V-ADDL. MACT, DAVANAGERE, AWARDING COMPENSATION OF RS.52,63,968/- WITH INTEREST AT THE RATE OF 8% PER ANNUM FROM THE DATE OF THE CLAIM PETITION TILL ITS REALIZATION. M.F.A. NO.4669 OF 2018 BETWEEN: 1. THE DIVISIONAL CONTROLLER
KSRTC, DAVANAGERE DIVISION
P B ROAD, DAVANAGERE-577001
OWNER OF KSRTC BUS BEARING
REGISTERED NO.KA-17-F-1300. 2. THE MANAGING DIRECTOR
INTERNAL SECURITY FUND
K.S.R.T.C. SARIGE BHAVAN
SHANTHINAGAR, OLD KGID BUILDING
K H ROAD, BENGALURU-560027
BOTH THE APPELLANTS ARE
REPRESENTED BY IT'S CHIEF LAW OFFICER. .... APPELLANTS (BY MR. F.S. DABALI, ADV.,) AND: 1. S. SURABHI
D/O K. SANTOSH KUMAR
AGED ABOUT 16 YEARS
9TH STANDARD
SINCE MINOR REPRESENTED BY HER
NATURAL FATHER AS GUARDINA
K. SANTHOSHKUMAR
S/O K. SANTHKUMAR, AGE 59 YEARS
OCC: ASSISTANT MANAGER IN
GRASIM INDUSTERIS LTD.,
KUMARAPATANAM, RANIBENNUR TALUK
HAVERI DISTRICT-581123, EARLIER.
NOW RESIDING AT
SRI. D. DEVARAJ URS LAYOUT
A BLOCK, 6TH CORSS
SANMATHI NILAYA 1ST FLOOR
DAVANAGERE-577001. 2. IRFANULLA BALAGAR
S/O ABDUL REHAMN SAB
AGE 35 YEARS
OCC:KSRTC BUS DRIVER
BEARING REGISTERED NO.KA-17-F1300
R/O KADARANAYAKANAHALLI
HARIHAR TALUK
DAVANAGERE DISTRICT-577601. 3. K. KEERTHI KUMAR
S/O K. SANATH KUMAR
AGE 52 YEARS
DIRECTOR IN ELMECH
ENGINEERING CO. LTD.,
R/O KIRANA, D NO.36/113
4TH CROSS, AMARJYOTHINAGAR
BANGALORE-560040
OWNER OF CHEVROLET CAR KA02/MC-7340.
5 4. THE BRANCH / DIVISIONAL MANAGER /
OFFICE IN CHARGE
ICICI LOMBARD GENERAL INSRUANCE CO LTD
ICICI LOMBARD HOUSE 414
VEERASAVAKAR MARG NEAR SIDDAVINAYAKA
TEMPLE, PRABHADEVI, MUMBAI-400 025
INSURER OF CHEVROLET CAR BEARING KA-02/MC-7340.
(POLICY NO.3001/89478471/00/000
COVER NOTE NO.PS11279506
VALID PERIOD FROM 26-4-2014 TO 25-4-2015)
... RESPONDENTS (BY MR. N. SUKUMAR JAIN, ADV., R1 MR. H.N. KESHAV PRASHANTH, ADV., FOR R4 V/O DTD:18.12.2018 & 16.02.2021 NOTICE TO R2 & R3 ARE D/W) - - - THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2018, PASSED IN MVC NO.445/2016, ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE & V-ADDL. MACT, DAVANAGERE, AWARDING COMPENSATION OF RS.10,000/- WITH INTEREST AT THE RATE OF 8% PER ANNUM FROM THE DATE OF THE CLAIM PETITION TILL ITS REALIZATION. M.F.A. NO.634 OF 2020 BETWEEN: 1. THE MANAGING DIRECTOR
KSRTC, DAVANAGERE DEPOT
DAVANAGERE-577001. 2. THE MANAGING DIRECTOR
KSRTC, SARIGE BHAVAN
BENGALURU-560027. 3. THE CHAIRMAN, KSRTC
INTERNAL INSURANCE CONSOLIDATING FUND
SARIGE BHAVAN
BENGALURU-560027.
APPELLANTS NO.1 TO 3 ARE
REPRESENTED BY ITS CHIEF LAW OFFICER. .... APPELLANTS (BY MR. DABALI FAKKIRAPPA SHIDRAMAPPA, ADV.,) AND: 1. SMT. ANASUYAMMA
@ RENUKAMMA
W/O LATE SHANKAR BAGALAD @ SHANKAR B
AGED ABOUT 49 YEARS. 2. MAMATHA
D/O LATE SHANKAR BAGALAD @ SHANKAR B
AGED ABOUT 31 YEARS. 3. MAHESH
S/O SHANKAR BAGALAD @ SHANKAR B
AGED ABOUT 27 YEARS. 4. SANTHOSH
S/O SHANKAR BAGALAD @ SHANKAR B
AGED ABOUT 27 YEARS. 5. SIDDALINGESHWAR
S/O SHANKAR BAGALAD @ SHANKAR B
AGED ABOUT 23 YEARS.
RESPONDENTS NO.1 TO 5 ARE
R/O IST MAIN, 5TH CROSS
K R NAGAR, HARIHAR
DAVANAGERE DISTRICT-577601. 6. KEERTHIKUMAR
S/O SRINATH KUMAR
AGED ABOUT 53 YEARS
DIRECTOR OF M/S ELECRAFT TECHNOLOGIES PVT.
NO.475/476, 2ND FLOOR
AT TOWERS, 1ST STAGE
THIMMAIAH ROAD
RAJAJINAGAR, BENGALURU-560010. 7. THE BRANCH MANAGER
ICICI LOMBARD INSURANCE CO LTD
BELLADA AND BELLAD COMPANY
GOKUR ROAD, HUBLI-580020. 8. IRFATULLA BALEGAR
S/O ABDUL RAHAMAN SAB
AGED ABOUT 36 YEARS
BADGE NO.3479M/CAB
D.L NO.KA-17-20021001731
DRIVER OF KSRTC BUS BEARING
REG NO.KA-17-F-1300
R/O KADARANAYAKANAHALLI VILLAGE
HARIHAR TALK
DAVANAGERE DISTRICT-577601. ... RESPONDENTS (BY MR. MAHESH R. UPPIN, ADV., FOR MR. N. PRAVEEN KUMAR, ADV., FOR R1 TO R5 MR. H.N. KESHAV PRASHANTH, ADV., FOR R7 V/O DTD:16.2.2021 NOTICE TO R6 & R8 ARE D/W) - - - THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.7.2019, PASSED IN MVC NO.22/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, AND ADDITIONAL MACT, HARIHARA, AWARDING COMPENSATION OF RS.16,19,468 WITH INTEREST AT THE RATE OF 6 PERCENT ON 50 PERCENT OF THE AWARD AMOUNT. M.F.A. CROB. NO.13 OF 2021 BETWEEN: 1. SMT. ANUSUYAMMA @ RENUKAMMA
W/O LATE SHANKAR BAGALAD @ SHANKAR B
AGED 50 YEARS. 2. MAMATHA
D/O LATE SHANKAR BAGALAD @ SHANKAR B
AGE 32 YEARS. 3. MAHESH
S/O LATE SHANKAR BAGALAD @ SHANKAR B
AGE 30 YEARS.
8 4. SANTOSH
S/O LATE SHANKAR BAGALAD @ SHANKAR B
AGE 28 YEARS. 5. SIDDALINGESHWARA
S/O LATE SHANKAR BAGALAD@ SHANKAR B
AGE 24 YEARS.
ALL ARE R/AT 1ST MAIN, 5TH CROSS
K.R. NAGAR, HARIHAR
DAVANAGERE DISTRICT-577601. .... CROSS OBJECTORS (BY MR. MAHESH R. UPPIN, ADV., FOR MR. N. PRAVEEN KUMAR, ADV.,) AND: 1. KEERTI KUMAR
S/O SRINATHA KUMAR
AGED 54 YEARS
DIRECTOR OF M/S. ELECRAFT TECHNOLOGIES PVT
NO.475/476 2ND FLOOR AT TOWERS
1ST STAGE, THIMMAIAH ROAD
RAJAJINAGAR, BENGALURU-560 001
OWNER OF CAR BEARING REG.NO.KA-02-MC-7340. 2. BRANCH MANAGER
ICICI LOMBARD INSURANCE CO LTD
BELLAD AND BELLAD COMPANY
GOKUL ROAD, HUBLI-580020
POLICY NO.3001/89478451/00/000
VALID FROM 26-4-2014 TO 25-4-2015. 3. IRFANULLA BALEGAR
S/O ABDUL REHAMAN SAB, AGE 37 YEARS
BADGE NO.3479 M/CAB
NO.KA-17-F-1300
R/O KADARANAYAKANAHALLI VILLAGE
HARIHAR TALUK, DAVANAGERE DISTRICT-577 601. 4. THE MANAGING DIRECTOR
KSRTC, DAVANAGERE DEPOT
DAVANAGERE-577 001.
9 5. THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT CORPORATION
SARIGE BHAVAN
BENGALURU-560 001. 6. THE CHAIRMAN
KARNATAKA STATE ROAD TRANSPORT CORPORATION
INTERNAL INSURANCE CONSOLIDATING FUND
SARIGE BHAVAN, BENGALURU-560 001. ... RESPONDENTS (BY MR. H.N. KESHAV PRASHANTH, ADV., FOR R2 MR. F.S. DABALI, ADV., FOR R4-R6 V/O DTD:16.2.2021 NOTICE TO R1 & R3 ARE D/W) - - - THIS M.F.A. CROB IS FILED UNDER ORDER 41 RULE 22 R/W SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.7.2019, PASSED IN MVC NO.22/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, AND ADDITIONAL MACT, HARIHARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE M.F.As. CONNECTED WITH M.F.A. CROB COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: COMMON JUDGMENT MFA No.4492/2018 and MFA No.4669/2018 have been filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) by the Corporation against the common judgment dated 17.01.2018 passed by the Motor Accident Claims Tribunal. MFA No.636/2020 has been filed by the Corporation whereas MFA.Crob.No.13/2021 has been filed by the claimants
10 against the judgment dated 25.07.2019 passed by the Claims Tribunal. Since the appeals as well as the cross- objection arise out the same accident, they were heard analogously and are being decided by this common judgment. 2. Facts giving rise to the filing of MFA Nos.4492/2018 and 4669/2018 briefly stated are that on 20.04.2015 deceased Shankar - claimant in MFA.Crob.No.13/2021 at about 4.30 p.m. was driving the car bearing registration No.KA--2 MC-7340 along with 3 other inmates from Kumarapatnam towards Hujare on Honahalli-Shimoga road. When the car reached near Holalur burial ground, the car dashed against the bus bearing registration No.KA-17 F-1300 coming from the opposite direction. As a result of the aforesaid accident, one Bhagyashree, respondent / claimant in MFA No.4492/2018 who was aged 47 years, sustained severe injuries and succumbed to the same. Similarly, injured claimant Surabhi who is respondent in MFA No.4669/2018 sustained simple injuries. The driver of the car namely deceased Shankar who is claimant in
11 MFA.Crob.No.13/2021 sustained severe injuries and succumbed to the same. 3. Thereupon, the legal representatives of deceased Bhagyashree filed MVC No.146/2016 inter alia on the ground that the accident has taken place solely on account of rash and negligent driving of the driver of the bus belonging to the Corporation. It was further pleaded that at the time of accident, the deceased was aged about 47 years and was employed as a Clerk in a Co-operative Bank. Accordingly, compensation to the extent of Rs.50,00,000/- along with interest was claimed. The injured claimant namely Surabhi filed MVC No.445/2016 seeking compensation in respect of the injuries sustained by her. The legal representatives of deceased Shankar filed MVC No.22/2016 claiming compensation. 4. The Corporation filed statement of objections in which inter alia it was pleaded that the accident took place on account of the rash and negligent driving of the car by its driver. It was further pleaded that the amount of
12 compensation claimed by the claimants is excessive and exorbitant. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. In MVC Nos.146/2016 and 445/2016 common evidence was adduced. Claimant No.1 in MVC No.146/2016 was examined as PW-1 and documents namely Ex.P1 to Ex.P15 were marked. The respondents examined Irfanulla Balegar as RW-1 and Vinayak N.Badigar as RW-2 and got marked documents Ex.R1 and Ex.R2. In MVC No.22/2016, the claimant No.1 examined herself as PW-1 and Venkatesh Hegde as PW-2 and got exhibited documents namely Ex.P1 to Ex.P5 whereas the respondents examined Vinayak as RW- 1, Irfanulla Balegar as RW-2 and H.S.Siddesh as RW-3 and got marked documents namely Ex.R1 to R9(a). The Claims Tribunal, by the impugned judgment passed in MVC Nos.146/2016 and 445/2016 inter alia, held that the accident took place on account of rash and negligent driving of both the vehicles. It was further held that the driver of the car as well as the driver of the bus contributed to the extent of 70%
13 and 30%, respectively in causing the accident. It was further held that the claimants in MVC No.146/2016 was entitled to compensation to the tune of Rs.52,60,968/- along with interest at the rate of 8% p.a. from the date of petition till the date of realization whereas the injured claimant Surabhi in MVC No.445/2016 was held entitled to compensation of Rs.10,000/- on account of the injuries sustained by her. 6. The Claims Tribunal in MVC No.22/2016, by a separate judgment dated 25.07.2019 held that the driver of the car as well as the driver of the bus have contributed in causing the accident to the extent of 50% each and held that the claimants in MVC No.22/2016 are entitled to compensation to the tune of Rs.16,19,468/- and directed the Corporation to pay 50% of the aforesaid amount along with interest at the rate of 6% p.a. from the date of petition till the date of realization. In the aforesaid factual background, these appeals as well as cross-objection have been filed. 7. Learned counsel for the Corporation submitted that the Tribunal, without assigning any reasons, erred in holding that the driver of the car as well as the driver of the bus, had
14 contributed to the extent of 70% and 30%, respectively. While inviting the attention of this Court to the spot sketch Ex.R1, Mahazar Ex.P3, IMV report Ex.P4 and evidence of the driver of the bus namely Irfanullah Balegar RW-1, it is submitted that the driver of the bus was driving on the left side of the road cautiously and the bus was proceeding from Shimoga to Honnalli. It is further submitted that the Tribunal ought to have appreciated that the car had hit the extreme right side of the bus and the charge sheet was filed against the driver of the car. Therefore, the Tribunal ought to have appreciated that the accident had taken place solely on account of the rash and negligent driving of the driver of the car. It is further submitted that the Claims Tribunal in MVC No.22/2016 grossly erred in holding that the drivers of both the vehicles namely the car and the bus had contributed to the extent of 50% in causing the accident merely on the basis of charge sheet and without adverting to the evidence on record. Therefore, the judgment passed by the Claims Tribunal insofar as it pertains to the finding with regard to the negligence is required to be set aside. Learned Counsel for the KSRTC further submitted that the Tribunal erred in
15 not deducting income and professional tax from the income of the deceased in MVC No.146/2016 and has confined his submissions with regard to the quantum of compensation in the other appeals viz., MFA 634/2020 and MFA 4669/2018 to the aforesaid extent. 8. On the other hand, learned counsel for the claimants in MFA.Crob.13/2021 submitted that a complaint Ex.P2 was made by one Manoj Kumar who was sitting by the side of the driver of the bus. In his complaint, he stated that the bus was being driven by its driver on the curve road in a rash and negligent manner. It is further submitted that the charge sheet has been filed against the driver of the bus as well as the driver of the car. It is further submitted that in the statement of objections, no such plea has been taken in respect of the contentions which are sought to be argued before this Court. Therefore, in the absence of any pleading, the submissions raised on behalf of the Corporation with regard to the issue of contributory negligence cannot be considered. It is also submitted that the amount of compensation which has been awarded under the
16 conventional heads to the claimants in MVC No.22/2016, is on the lower side. 9. We have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other’s negligence. [See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. However, facts of the accident may by themselves constitute evidence of negligence and to such a
17 case the Doctrine of res ipsa loquitor apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it. The Supreme Court in ‘MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.’ AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other’s negligence. 10. A Division Bench of this Court in ‘SHARADABAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION’, ILR 1987 KAR 2730 has held that in order to discharge the burden of proof with regard to contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence
18 adduced by both the parties and the same cannot be based merely on police records. [See: ‘MINUROUT VS. SATYA PRADYUMNA MOHAPATRA’, (2013) 10 SCC 695 AND ‘SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,’, (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [SEE: ‘USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES’, (2009) 14 SCC 71]. In ‘MANGALA RAM VS. ORIENTAL INSURANCE CO. LTD.’, (2018) 5 SCC 656]. In the background of the aforesaid well settled legal principles, we may advert to the facts of the case in hand. 11. For the sake of convenience, evidence from MVC No.22/2016 has been referred to. Admittedly, PW1 is not an eye witness to the accident. No other independent eye witness has been examined on behalf of the claimants to prove the manner of accident as alleged by them. RW2 Irfanuallah Baledar who was driving the bus at the time of the accident and is an eye witness to the accident has stated
19 in his evidence that the accident occurred on account of the negligence of the driver of the offending car who had traversed to the wrong side of the road in order to overtake a Tractor and another KSRTC Bus which were proceeding in front of the car. Nothing to the contrary was elicited from his cross examination. Ex.P1 FIR and Ex.P2 Chargesheet have been filed against driver of the car as well as the driver of the bus. EX.P4 IMV Report indicates that the car has sustained heavy damage to the front portion, whereas, the bus has sustained damage to the right portion. Ex.R3 are the photographs depicting the spot of accident as well as the damage to the vehicles involved in the accident. Ex.R4 Spot sketch discloses that the road is a 16 feet wide road and that the accident has taken place on the extreme left side of the road immediately after the driver of the bus had negotiated a curve. 12. Therefore, from the aforesaid state of evidence on record and on the basis of preponderance of probabilities, an inference that the driver of the bus was driving the bus on the extreme left side of the road and that driver of the car had traversed to the wrong side of the road can be drawn. It
20 is pertinent to note that the claimants have not produced any positive evidence to explain as to why or how the car has traversed to the wrong side of the road. However, it was also incumbent upon the driver of the bus to have exercised caution especially while exiting a curved road. It is also pertinent to note that RW2 viz., the driver of the bus who has stated that he had seen the car overtaking the tractor as well as the other bus behind the tractor. Therefore, we hold that the accident occurred on account of the negligence of the driver of car to the extent of 90% as well as the driver of the bus to the extent of 10%. Accordingly, the finding of the Tribunal with regard to the negligence of the drivers of the car as well as the bus in MVC No. 22/2016 as well as in MVC Nos. 146/2016 and 445/2016 is hereby set aside and it is held that the accident occurred on account of negligence of both the drivers of car as well as the bus to the extent of 90% and 10% respectively. 13. The learned counsel for the KSRTC has confined his submissions with regard to the quantum of compensation only in respect of MVC No.146/2016, the amount of
21 compensation awarded by the Tribunal in MVC No.445/2016 is maintained. Now we may advert to the quantum of compensation in MVC No.146/2016. The Tribunal has assessed the income of the deceased at Rs.38,417/- per month on the basis of Ex.P8 Income Tax Return. However, the Tribunal erred in not deducting income tax at Rs.925/- per annum as well as professional tax to the extent of Rs.2,400/- per annum from the aforesaid income. Therefore the income of the deceased is assessed at Rs.38,140/- per month. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects as the deceased was in private employment where security of tenure is not assured. Thus, the monthly income comes to Rs.47,675/-. Since, the number of dependents are 3, therefore, 1/3rd of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.31,783/-. Taking into account the age of the deceased which was 47 years at the time of accident, the multiplier of ‘13’ has to be adopted.
22 Therefore, the
claimants are held entitled to (Rs.31,783x12x13) i.e., Rs.49,58,148/- on account of loss of dependency. 14. In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.51,08,148/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. The Respondent No.2 viz., the KSRTC is directed to pay 10% of the aforesaid total amount of compensation along with interest after deducting Rs.50,000/- paid by the KSRTC by way of ex gratia payment
23 to the claimants which is quantified at Rs.4,60,815/-. The insurer of the car viz., Respondent No.4 and owner of the car viz., Respondent No.4 are jointly and severally held liable to pay 90% of the aforesaid total amount of the compensation. To the aforesaid extent, the judgment passed by the Tribunal in MVC No.146/2016 is modified. 15. Now we may advert to the quantum of compensation in MVC No.22/2016. In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, the claimants are held entitled to Rs.2,00,000/- on account of loss of consortium and loss of love and affection. Thus, in all, the claimants are held entitled to a total compensation of Rs.18,29,468/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment
24 is made. The Respondent No.2 viz., the KSRTC is directed to pay 10% of the aforesaid total amount of compensation which is quantified at Rs.1,82,947/-. To the aforesaid extent, the judgment passed by the Tribunal in MVC No.22/2016 is modified. The amount in deposit, if any, in all the instant appeals, shall be transmitted to the Claims Tribunal. In the result, the appeals as well as the cross objection are disposed of. In view of disposal of the appeals, the pending interlocutory application does not survive for consideration and is accordingly, disposed of. Sd/- JUDGE Sd/- JUDGE RV