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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA No.2880 OF 2014(MV) C/W MFA No.2881 OF 2014(MV)
IN MFA 2880/2014 BETWEEN:
The Manager, K.S.R.T.C. Chikkaballapur Division, Chikkaballapura-562 101. Service Centre at : The Manager, K.S.R.T.C., Tumkur Town-572101. Now by the Managing Director K.S.R.T.C., Central Office, K.H.Road, Bangalore-560 027, Represented by its Chief Law Officer.
… Appellant
(By Sri.F.S.Dabali., Advocate)
AND:
Saraswathamma,
Aged about 48 years
Wife of Rudrappa.
2 2. Bhavya,
D/o Rudrappa,
Aged about 27 years.
Mamatha,
D/o Rudrappa,
Aged about 25 years.
Divya, D/o Rurdrappa, Aged about 24 years.
Pallavi,
D/o Rudrappa,
Aged about 21 years.
Lokesh,
S/o Rudrappa,
Aged about 14 years.
Sine minor represented by
Mother & N/G respondent No.1
Saraswathamma.
R1 to R6 are residents of
Chikke Gowda Building,
Avalahally, Singanayakana halli post,
Yelahanka Hobli,
Bangalore North Taluk-560 064.
Now residing at
Bassaveshwara Nilaya,
Srinivasa Nursing Home Road,
Ashoknagar,
Tumkur Town-572 101.
Anitha T.R.
D/o Late. B.K.Rudrappa
Wife of Prakash
3 Deleted v/o dated:13.02.2017.
Pushpalatha,
D/o Late. B.K.Rudrappa,
Wife of Gangadar,
Aged about 30 years,
R/at Hosahuddya
Chikkabllapur Taluk & District-562 101. ... Respondents
(By Sri.K.R.Ramesh, Advocate for R1 to R6: R7 is deleted v/o dated: 13.02.2017 R8 served)
This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated: 18.12.2013 passed in MVC No. 590/2008 on the file of the Additional Senior Civil Judge, MACT-11, Tumkur, awarding a compensation of Rs.12,28,692/- with interest @ 6% p.a from the date of petition till realization.
IN MFA.2881/2014 BETWEEN
The Managing Director, KSRTC/BMTC Head Office, Shanthinagar, K.H.Road, Bangalore-560 027.
Represented by its Chief Law Officer. …Appellant (By Sri. F.S.Dabali, Adv.)
AND
Vijaya @ Vijayamma,
W/o B.K.Rudrappa,
Aged about 47 years.
Jayashree T.R.,
D/o B.K.Rudrappa,
Aged about 27 years.
Parashivamurthy T.R.,
S/o B.K.Rudrappa,
Aged about 24 years.
All the respondents are
Residing at No.16-3, Puttenahalli,
Yalahanka, Bangalore-560 064. …Respondents (v/o dated: 03.10.2017 service of notice to R1 to R3 is deemed to be complete)
This MFA is filed under Section 173(1) of MV Act against the judgment and award dated:18.12.2013 passed in MVC No.8267/2009 on the file of the Additional Senior Civil Judge, MACT-II Tumkur, awarding a compensation of Rs.12,28,692/- with interest @ 6% p.a. from the date of petition till realization.
These MFAs, coming on for hearing, this day, this Court, delivered the following:
J U D G M E N T
Both the appeals are filed by the Karnataka State Road Transport Corporation (for short, ‘Corporation) under Section 173(1) of the Motor Vehicles Act challenging the judgment and award dated 18.12.2013 passed by the MACT, Tumkur in
5 MVC Nos.590/2008 and 8267/2009, respectively. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.
Facts giving rise to the filing of the appeals briefly stated are that on 01.02.2008 at about 8.00 p.m. the deceased Rudrappa was proceeding on his moped near Nagenahalli gate, Bengaluru – Doddaballapura road. At that time, the BMTC bus bearing registration No.KA-40/F-92 came at a high speed and in a rash and negligent manner, dashed against the moped. As a result of the aforesaid accident, the deceased sustained grievous injuries and died at the spot.
The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 53 years at the time of accident, was
6 working as a conductor and was earning Rs.11,955/- per month. The claimants claimed compensation to the tune of Rs.9,55,000/- along with interest.
On service of summons, the respondent appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the accident occurred due to the rash and negligent riding of the deceased himself. Hence, he sought for dismissal of the petition.
On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited 12 documents namely Ex.P1 to Ex.P12. On behalf of respondents, driver of the bus was examined as RW-1 but no documents were
7 marked. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.6,77,770/- along with interest at the rate of 6% p.a. and directed the Corporation to deposit the compensation amount along with interest.
Being aggrieved, the claimants in MVC No.590/2008 stated to be pending before the MACT, Tumkur, claiming compensation towards the death of very same person have filed MFA No.8655/2010 and the Corporation, questioning the finding on negligence and quantum and also dispute as regards the legal heirs of deceased Rudrappa filed MFA No.988/2011.
8 7. This Court, by a common judgment dated 11.02.2011, allowed both the appeals, set aide the judgment and award passed in MFA No.8267/2009 and remanded the matter back to the Tribunal for considering MVC No.590/2008 along with MVC No.8267/2009. After remand, the Tribunal by a common judgment and award dated 18.12.2013 allowed the petitions. The Tribunal further held that the claimants are entitled to a compensation of Rs.12,28,692/- along with interest at the rate of 6% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved the Corporation has filed these appeals.
The learned counsel for the Corporation has raised the following contentions: Firstly, the accident occurred due to the rash and negligent driving of the deceased who was driving the moped, but the Tribunal has wrongly held that the
9 driver of the KSRTC bus was negligent in causing the accident. Secondly, the Tribunal has wrongly given a finding that the bus was travelling from South to North, in fact the bus was coming from North to South from Doddaballapura to Bengaluru. It is very clear from Ex.P4 – spot sketch that the bus was proceeding right side of the road, the rider of the moped was coming extreme right side and dashed against the bus. Therefore, there is a negligence on the part of the rider of the moped. The Tribunal has wrongly held that the driver of the bus was negligent in causing the accident. Thirdly, the Tribunal while assessing the monthly income of the deceased has not deducted professional tax and income tax. Fourthly, since the deceased was a Government employee and aged about 55 years, split multiplier
10 has to be adopted. In support of his contentions, he relied on the law laid down by the Hon’ble Apex Court in the case of ‘PUTTAMMA AND ORS. VS. K.L.NARAYANA REDDY AND ORS.’ (AIR 2014 SC 706). Fifthly, the compensation awarded by the Tribunal on the other heads is n the higher side. Hence, he sought for allowing the appeals.
Per contra, learned counsel appearing for the claimants has raised the following contentions: Firstly, the accident occurred due to the rash and negligent driving of the driver of the bus. The claimant has examined the eyewitness as PW-2, who specifically stated that the accident occurred due to the rash and negligent driving of the driver of the KSRTC bus. Immediately after the complaint, police have filed FIR against the driver of the bus and charge
11 sheet has been filed against the driver of the bus. After the accident driver has not filed any complaint against the rider of the moped and he has also not challenged the charge sheet. Therefore, it is very clear that the accident occurred due to the rash and negligent driving of the driver of the bus. Secondly, the Tribunal after appreciating the oral and documentary evidence has rightly held that the accident occurred due to the rash and negligent driving of the driver of the bus. Thirdly, the Tribunal after deducting income tax and professional tax rightly assessed the monthly income of the deceased as Rs.12,108/- and considering the age of the deceased as 55 years in view of the law laid down by the Hon’ble Apex court in the caser of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], considered addition of 15% towards future
12 prospects since the deceased was a Government employee. Fourthly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of ‘loss of love and affection and consortium’. Fifthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, he prays for dismissal of the appeals.
Heard the learned counsel for the parties and perused the judgment and award and the original records.
The case of the claimants is that the deceased succumbed to the injuries due to the rash and negligent driving of the driver of the bus. On
13 01.02.2008 at 8.00 p.m. the deceased was proceeding on his moped from Puttanahalli to Avalahalli, the KSRTC bus came from the opposite direction at a high speed and dashed against the moped. Due to the accident, the deceased succumbed to the injuries. To prove their case, claimants have examined themselves and also examined an eyewitness as PW-2 and produced 15 documents. To disprove the same, respondents have examined the driver of the bus as RW-1. Immediately after the accident police have registered FIR against the driver of the bus. Even though in the criminal case driver has been acquitted, evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability.
I have gone through the records. From Ex.P4 - spot sketch it is very clear that the deceased wa proceeding from South to North and the bus was
14 proceeding from North to South, i.e, from Doddaballapura to Bengaluru. The width of the road is 28 ft, the accident spot from the west is 18 ft. It is clear from the mahazar and the sketch that the rider of the moped was proceeding on the extreme right side of the road and the driver of the bus was coming from the opposite direction at a high speed, he has not made any effort to stop the bus and there is no break mark on the road which may be made out from the sketch or mahazar. Therefore, it is very clear that the driver of the bus was also negligent in driving the bus and he has not made any effort to stop the bus. Since it is a heavy vehicle he could have made effort to stop the bus and avoided the accident. Taking into consideration the evidence of the parties and the materials on record, I am of the opinion that both the rider of the moped and the driver of the bus have
15 contributed to the occurrence of the accident at 20% and 80%, respectively.
Re.quantum: 13. Under Order 41 Rule 33 of CPC this Court has the power to reassess the compensation in the absence of any appeal by the claimant to grant just and reasonable compensation. The claimants have produced Ex.P7 – pay slip of the deceased. As per the pay slip, the gross monthly income of the deceased is shown as Rs.12,108/-, out of which he was paying Rs.250/- towards income tax and Rs.200/- towards professional tax and the same has to be deducted. After deducting the same, monthly income has to be taken at Rs.11,658/-. To the aforesaid amount, 15% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly
16 income comes to Rs.13,407/-, out of which, since there are more than 6 dependents, we deem it appropriate to deduct 1/5th towards personal expenses and therefore, the monthly dependency comes to Rs.10,726/-. Considering the age of the deceased, as per the law laid down by the Hon’ble Apex Court in the case of PUTTAMMA (supra), the split multiplier has to be adopted and the applicable multiplier is ‘5’ for five years and ‘6’ for the remaining period. Accordingly, the loss of dependency for the pre- retirement period = (a) Rs.6,43,560/- (Rs.10,726 x 12 x 5).
For the post-retirement period = Rs.3,86,136/- (Rs.5,363 x 12 x 6), the claimants are entitled to Rs.10,30,296/- (Rs.6,43,560 + Rs.3,86,136) on account of ‘loss of dependency’. In view of the law laid down by the Hon’ble Supreme Court in MAGMA GENERAL INSURANCE (supra), claimant No.1 in MVC No.590/2008, wife of
17 the deceased is entitled for compensation of Rs.40,000/- under the head of ‘loss of spousal consortium’, claimant Nos.2 to 6 in MVC No.590/2008 and claimant Nos. 2 and 3 in MVC No.8267/2009, children are entitled for compensation of Rs.40,000/- each under the head of ‘loss of parental consortium’. In addition, the claimants are entitled to Rs.15,000/- on account of ‘loss of estate’ and Rs.15,000/- on account of ‘funeral expenses’.
Thus, the claimants are entitled to the following compensation:
Compensation under different Heads Amount in (Rs.) Loss of dependency 10,30,296 Funeral expenses 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Loss of Parental consortium 2,80,000 Total 13,80,296
18 The claimants are entitled to a total compensation of Rs.11,04,237/- (being 80% of Rs.13,80,296/-). The Corporation is directed to deposit the total compensation amount along with interest at the rate of 6% p.a. from the date of petition till the date of payment, within a period of four weeks from the date of receipt of copy of this judgment. The apportionment shall be made as per the award of the Tribunal. To the aforesaid extent, the judgment of the Claims Tribunal is modified. The amounts in deposit in both the appeals are ordered to be transmitted to the Tribunal, forthwith. Accordingly, the appeals are disposed of.
Sd/- JUDGE
Cm/-