Shivagangamma vs The Managing Director
2021 Latest Caselaw 1336 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.4700 OF 2017
                           C/W
      M.F.A. NO.3990 OF 2017, M.F.A. NO.4395 OF 2016 &
               M.F.A. NO.7785 OF 2016 (MV-D)


M.F.A. NO.4700 OF 2017
BETWEEN:

1.     SHIVAGANGAMMA
       W/O LATE SHIVASHANKARAIAH
       AGED ABOUT 58 YEARS
       R/AT MARASHETTIHALLI
       KADABA HOBLI, GUBBI TALUK
       TUMKUR DISTRICT-572219.

2.     SUDHARANI
       W/O BYRESH
       D/O LATE SHIVASHANKARAIAH
       AGED ABOUT 28 YEARS
       R/AT THIMLAURA, KASABA HOBLI
       GUBBI TALUK
       TUMKUR DISTRICT-572219.

3.     SIDDALINGAIAH
       S/O LATE SHIVASHANKARAIAH
       AGED ABOUT 31 YEARS
       R/AT MARASHETTIHALLI
       KADABA HOBLI
                                  2



       GUBBI TALUK
       TUMKUR DISTRICT-572219.
                                           ... APPELLANTS
(BY MR. GURUDEV PRASAD K.T. ADV.,)

AND:

THE MANAGING DIRECTOR
K.S.R.T.C. SHANTHINAGAR
K.H.ROAD, BANGALORE-560 027.
                                          ... RESPONDENT
(BY MR. D. VIJAY KUMAR, ADV.,)

                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.02.2017 PASSED IN MVC NO.887/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MACT-17, AT GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.3990 OF 2017 BETWEEN:

THE MANAGING DIRECTOR K S R T C SHANTHINAGAR K H ROAD, BANGALORE - 560027.

... APPELLANT (BY MR. D. VIJAYA KUMAR, ADV.,)

AND:

1. SMT. SHIVAGANGAMMA W/O LATE SHIVASHANKARAIAH AGED ABOUT 58 YEARS R/AT. MARASHETTIHALLI KASABA HOBLI, GUBBI TALUK TUMKUR DIST - 572216.

2. SMT. SUDHARANI W/O SRI BYRESH D/O LATE SHIVASHANKARAIAH MAJOR, R/AT THIMLAPURA

KASABA HOBLI TIPTUR TALUK, TUMKUR DIST - 572201.

3. SRI. SIDDALINGAIAH S/O LATE SHIVASHANKARAIAH AGED ABOUT 31 YEARS R/AT. MARASHETTIHALLI KASABA HOBLI, GUBBI TALUK TUMKUR DIST - 572216.

... RESPONDENTS (BY MR. K.T. GURUDEVAPRASAD, ADV., FOR R1 TO R3)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.02.2017 PASSED IN MVC NO.887/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT-17, GUBBI, AWARDING COMPENSATION OF RS.4,38,912/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. NO.4395 OF 2016 BETWEEN:

THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K.H. ROAD SHANTHINAGAR BANGALORE-560 027.

... APPELLANT (BY MR. D. VIJAYA KUMAR, ADV.,)

AND:

1. SMT. YASHODHA W/O LATE MANJUNATH AGED ABOUT 35 YEARS.

2. T.M. SUDHA D/O LATE MANJUNATH AGED ABOUT 19 YEARS.

3. T.M. MANOJ S/O LATE MANJUNATH AGED ABOUT 13 YEARS.

SINCE MINOR REP BY HIS MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1 SMT. YASHODHA.

4. SRI. SHIVANANDAMURTHY S/O SIDDAPPA AGED ABOUT 67 YEARS.

5. SMT. SUSHEELAMMA W/O SIDDAPPA AGED ABOUT 57 YEARS.

ALL ARE R/AT THARABAENAHALLY VILLAGE SETTYKERE HOBLI CHIKKANAYAKANA HALLI TALUK TUMKUR DIST-572 218.

... RESPONDENTS (BY MR. K.A. CHANDRASHEKARA, ADV., FOR R1, R4 & R5 R2 SERVED R3 MINOR REPTD BY R1)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.01.2016 PASSED IN MVC NO.770/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND XIX MACT, ITINERATE COURT, CHIKKANAYAKANAHALLI, AWARDING COMPENSATION OF RS.4,73,250/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. NO.7785 OF 2016 BETWEEN:

1. YASHODHA W/O LATE MANJUNATH AGED ABOUT 35 YEARS.

2. T.M. SUDHA D/O LATE MANJUNATH AGED ABOUT 19 YEARS.

3. T.M. MANOJ S/O LATE MANJUNATH AGED ABOUT 13 YEARS.

SINCE MINOR REP BY MOTHER APPELLANT NO.1.

4. SHIVANANDAMURTHY S/O SIDDAPPA AGED ABOUT 67 YEARS.

5. SUSHEELAMMA W/O SIDDAPPA AGED ABOUT 57 YEARS.

ALL ARE R/O THARABAENAHALLY VILLAGE SETTYKERE HOBLI C.N. HALLYTALUK TUMKUR DISTRICT-572119.

... APPELLANTS (BY MR. CHANDRASHEKARA K.A. ADV.,)

AND:

1. THE MANAGING DIRECTOR KSRTC, K.H. ROAD SHANTHINAGAR BANGALORE-560027.

2. THE DIPO MANAGER KSRTC, CHITRADURGA CHITRADURGA DISTRICT-577501.

... RESPONDENTS (BY MR. D. VIJAYAKUMAR, ADV., FOR R1 & R2)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.01.2016 PASSED IN MVC NO.770/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND XIX MACT, ITINERATE COURT, C.N. HALLI, PARTLY ALLOWING THE CLIAM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.4700/2017 has been filed by the claimants

seeking enhancement of the amount of compensation,

whereas, M.F.A.No.3990/2017 has been filed by the

Karnataka State Transport Corporation (hereinafter referred

to as 'the KSRTC' for short) under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'

for short) against the judgment and award dated 01.02.2017

in M.V.C.No.887/2014.

2. M.F.A.No.7785/2016 has been filed by the claimants

seeking enhancement of the amount of compensation,

whereas, M.F.A.No.4395/2016 has been filed by the KSRTC

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act' for short) against the

judgment and award dated 29.01.2016 in

M.V.C.No.770/2014. Since, all the appeals arise out of the

same accident, they were heard analogously and are being

decided by this common judgment.

3. The facts leading to filing of these appeals briefly

stated are that on 09.02.2014, the deceased Manjunath in

M.V.C.No.770/2014 along with the deceased

Shivashankaraiah in M.V.C.No.887/2014 as the pillion rider

were proceeding on a motorcycle bearing registration No.KA-

44-H-9139. When they reached Byadarahalli Gate, a KSRTC

bus bearing registration number KA-17-F-1326 which was

being driven by its driver in a rash and negligent manner,

came from the opposite direction and dashed against the

motorcycle of the deceased. As a result of the aforesaid

accident, the deceased Manjunath as well as the deceased

Shivashankaraiah sustained grievous injuries and

succumbed to the same on the spot.

4. The legal representatives of the deceased

Manjunath in M.V.C.No.770/2014 filed a petition seeking

compensation inter alia on the ground that the deceased was

aged about 38 years and was engaged in catering business

as well as agriculture and was earning Rs.25,000/- per

month. It was pleaded the accident occurred due to rash and

negligent driving of the KSRTC bus by its driver. The

claimants accordingly sought compensation to the tune of

Rs.25,00,000/- along with interest.

5. The legal representatives of the deceased

Shivashankaraih in M.V.C.No.887/2014 filed a petition

seeking compensation inter alia on the ground that the

deceased engaged as a an agriculturist as well as a cook and

was earning Rs.25,000/- per month. It was pleaded the

accident occurred due to rash and negligent driving of the

KSRTC bus by its driver. The claimants accordingly sought

compensation to the tune of Rs.25,00,000/- along with

interest.

6. The KSRTC filed written statement, in which the

mode and manner of the accident was denied. It was also

pleaded that accident occurred on account of negligence of

the deceased himself in riding the motorcycle. It was further

pleaded that the claim petition is bad for non joinder of

necessary parties. The ages, avocations and incomes of the

deceased were also denied and it was pleaded that the claim

of the claimants is exorbitant and excessive.

7. The Claims Tribunal on the basis of the pleadings

of the parties, framed the issues and recorded the evidence.

The claimant No.1 in M.V.C.No.770/2014 examined herself as

PW1 and adduced documents viz. Ex.P1 to Ex.P11, whereas,

the claimant No.3 in M.V.C.No.887/2014 examined himself as

PW1, Shivaprasad (PW2) and exhibited 9 documents viz.,

Ex.P1 to Ex.P13. The KSRTC examined the driver of the

offending bus as RW1 in both the claim petitions and

adduced documents namely Ex.R1 to Ex.R7 in

M.V.C.No.770/2014 and Ex.R1 to Ex.R2 in

M.V.C.No.887/2014. The Claims Tribunal by its judgment in

M.V.C.No.770/2014 inter alia held that the accident took

place on account of contributory negligence of both the rider

of the motorcycle as well as the driver of the KSRTC bus to

the extent of 30% and 70% respectively. It was further held

that claimants in M.V.C.No.770/2014 are entitled to a

compensation of Rs.4,88,250/- along with interest of 6% per

annum. The Tribunal by its judgment in M.V.C.No.887/2014

inter alia held that the accident took place wholly on account

of rash and negligent driving of the KSRTC bus by its driver.

It was further held that claimants in M.V.C.No.887/2014 are

entitled to a compensation of Rs.4,38,912/- along with

interest of 8% per annum. In the aforesaid factual

background, these appeals have been filed.

8. Learned counsel for the KSRTC submitted that the

Tribunal in MVC 770/2014 grossly erred in attributing

negligence on the part of the rider of the motorcycle to the

extent on 30% when Ex.R4 Spot Sketch clearly discloses that

the deceased was negligent to the extent of at least 50% in

causing the accident as he was riding his motorcycle 4 feet

across the median of the road in a high speed. It is further

submitted that the Tribunal in MVC 887/2014 grossly erred

in holding that accident occurred wholly on account of

negligence of driver of the KSRTC bus when Ex.R1 Copy of

judgement of MVC 770/2014 was adduced to show that the

issue with regard to the negligence of the driver of the

KSRTC had already been adjudicated. It is also submitted

that the Tribunal erred in not appreciating the evidence of

RW1 H Nagaraja who is an eye witness to the accident. It is

also urged that the Tribunal in MVC 887/2014 erred in

assessing the age of the deceased when PW1 Siddalingaiah

has admitted that the age of the deceased Shivashankaraiah

was more than 65 years as on the date of the accident.

9. Learned counsel for the claimants in MFA 7785/2016

submitted that the Tribunal grossly erred in attributing

negligence to the extent of 30% on the part of the rider of

the motorcycle when Ex.P1 FIR, Ex.P2 Complaint and Ex.P3

Chargesheet have been filed against the driver of the KSRTC

bus which is indicative of the negligence of the driver of the

KSRTC bus in causing the accident. It is further submitted

that the Tribunal grossly erred in assessing the income of the

deceased as Rs.4,500/- per month and in any case, the same

ought to have been taken as per the guidelines framed by

the Karnataka State Legal Services Authority. It is further

submitted that the Tribunal has erred in not making an

addition to the tune of 40% to the income of the deceased on

account of future prospects in view of the law laid down by

the Supreme Court in 'NATIONAL INSURANCE COMPANY

LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC

5157. It is further submitted that the sums awarded under

the heads 'loss of consortium' and 'funeral expenses' are on

the lower side and deserves to be enhanced suitably.

10. Learned counsel for the claimants in MFA

No.4700/2017 submitted that the Tribunal has rightly held

that the accident occurred wholly on account of negligence of

the driver of the KSRTC bus. It is further submitted that

Ex.R1 Photo clearly indicates that the accident occurred on

account of negligence of the driver of the KSRTC. It is also

submitted that the Tribunal has rightly assessed the age of

the deceased as 53 years on the basis of Ex.P10 Aadhar

cards. It is also urged that the Tribunal grossly erred in

assessing the income of the deceased as Rs.6,500/- per

month and in any case, the same ought to have been taken

as per the guidelines framed by the Karnataka State Legal

Services Authority. It is further urged that the sums awarded

under the heads 'loss of consortium' and 'funeral expenses'

are on the lower side and deserves to be enhanced suitably.

11. 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

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.

12. The finding with regard to contributory negligence

has to be recorded on the basis of proper consideration of

the pleadings and legal evidence 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]. In 'MANGALA RAM VS.

ORIENTAL INSURANCE CO.', (2018) 5 SCC 656 has held

that the proceeding under the Act has to be decided on the

basis of preponderance of probabilities and claimant is not

required to prove the accident beyond reasonable doubt.

13. At the outset, it is pertinent to note that the

Tribunal in its earlier judgment dated 29.01.2016 in respect

of the same accident has held that both the drivers of the

KSRTC bus as well as the rider of the motorcycle to be

negligent in causing the accident to the extent of 70% and

30% respectively, whereas, the Tribunal by its later

judgment dated 01.02.2017 has held that the same accident

occurred wholly on account of negligence of the driver of the

KSRTC bus. It is also pertinent to mention here that the

Tribunal while passing the judgment dated 01.02.2017 dated

in M.V.C.Nos.887/2014 has taken note of the judgment

dated 16.11.2017 passed in respect of the same accident in

M.V.C.No.770/2014, yet it has arrived at a different

conclusion with regard to the manner of the accident, which

according to us is not permissible in law as the decision taken

by a court of law has to be consistent on the same set of

facts. Therefore the aforesaid finding is impermissible in law.

14. Now we may address the issue of contributory

negligence. Admittedly , the accident took place around 5.15

PM. The claimants in MVC No887/2014 have examined PW2

Shivaprasad who has narrated the manner in which the

accident has taken place. The aforesaid witness has stated in

his evidence that he was traveling behind the motorcycle of

the deceased. The deceased was driving the motorcycle

cautiously and the driver of the KSRTC bus was driving the

bus in negligently in zigzag manner and hit the motorcycle of

the deceased. However, nothing contrary could be elicited

from the aforesaid witness. The KSRTC has also examined

the driver of the offending bus who in his evidence has stated

that the rider of the motorcycle while trying to overtake a

lorry, came to the right side of the road and hit the KSRTC

bus. However, even assuming the version of the KSRTC bus

to correct, the driver of the bus had the opportunity to avoid

the accident as he could see the rider of the motorcycle.

However, the fact remains that the rider of the motorcycle

should also have been cautious, while overtaking the lorry

and should have spotted the bus. Therefore, in the fact

situation of the case and in the state of evidence on record,

and the manner in which the accident has taken place, we

hold that the driver of the bus and the rider of the bike were

liable to the extent of 70% and 30% respectively.

15. Now we advert to the quantum of compensation in

MVC No.770/2014. The deceased was aged about 38 years at

the time of accident. Admittedly, the claimants have not

produced any evidence with regard to the income of the

deceased. Therefore, the notional income of the deceased is

assessed as per the guidelines issued by the Karnataka Legal

Services Authority. Since the accident is of the year 2014,

notional income is assessed at Rs.8,500/- per month.

16. 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, 40% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.11,900/-. Since, the number of dependents is

5, therefore, 1/4th of the amount has to be deducted

towards personal expenses and therefore, the monthly

dependency comes to Rs.8,925/-. Taking into account the

age of the deceased which was 38 years at the time of

accident, the multiplier of '15' has to be adopted. Therefore,

the claimants are held entitled to (Rs. 8,925x12x15) i.e.,

Rs.16,06,500/- on account of loss of dependency.

17. 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.'

IN CIVIL APPEAL NO.2705/2020 DECIDED ON

30.06.2020 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.2,00,000/-. 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.18,36,500/-.

18. Now we may deal with quantum of compensation in

MVC No. 887/2014. Ex.P10 Aadhar card discloses the age of

the deceased to be 53 years. Therefore, we hold that the

deceased was aged about 53 years at the time of accident

notwithstanding the admission to the contrary made in the

cross-examination made by PW1 Siddalingaiah as it is trite

law that documentary evidence has to prevail over the oral

testimony. Admittedly, the claimants have not produced any

evidence with regard to the income of the deceased.

Therefore, the notional income of the deceased is to be

assessed as per the guidelines issued by the Karnataka Legal

Services Authority. Since the accident is of the year 2014,

notional income is assessed at Rs.8,500/- per month.

19. 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, 10% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.9,350/-. Since, the number of dependents is 3,

therefore, 1/3rd of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.6,234/-. Taking into account the age of the

deceased which was 53 years at the time of accident, the

multiplier of '11' has to be adopted. Therefore, the claimants

are held entitled to (Rs. 6,234x12x11) i.e., Rs.8,22,888/- on

account of loss of dependency.

20. 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.'

2020 SCC Online SC 410 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.9,72,888/-.

21. Since the accident is of the year 2014, the

prevailing rate of interest for the year 2014 in respect of

fixed deposits for one year in nationalized banks being 8%,

the aforesaid amounts of compensation in MVC 887/2014 as

well as MVC 770/2014 shall carry interest at the rate of 8%

from the date of filing of the petition till the realization of the

amount of compensation.

22. The KSRTC is directed to pay 70% of the amount of

compensation determined by us in MFA No. 4700/2017 and

MFA No. 7785/2016. The amount in deposit, if any, shall be

transmitted to the claims tribunal. To the aforesaid extent,

the judgements dated 29.01.2016 and 01.02.2017 passed in

MVC No.770/2014 and MVC No.887/2014 respectively are

modified.

In the result, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss