Managing Director vs Smt Chandramma
2022 Latest Caselaw 8928 Kant

                                1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF JUNE, 2022

                              BEFORE

              THE HON'BLE MS.JUSTICE J.M.KHAZI

                 M.F.A.NO.602/2016 (MV)
                           C/W
                 M.F.A.NO.8542/2018 (MV)

IN M.F.A.NO.602/2016

BETWEEN:
MANAGING DIRECTOR
KSRTC BANGALORE
REP BY DIVISIONAL CONTROLLER,
KSRTC CHIKKAMAGALORE DIVISON,
CHIKKAMAGALORE,
NOW REP BY THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICE
K.H. ROAD,
SHANTHINAGAR,
BANGALORE - 560 027
                                                 ... APPELLANT
(BY SRI D VIJAYAKUMAR, ADVOCATE)
AND:

1.     SMT CHANDRAMMA,
       W/O LATE SWAMANNA @ SWAMY,
       AGED ABOUT 47 YEARS

2.     SRI. LOKESH,
       S/O LATE SWAMANNA @ SWAMY,
       AGED ABOUT 29 YEARS,

3.     SMT. KALAMMA,
       W/O LATE BASAVAIAH,
       AGED ABOUT 72 YEARS,
       ALL ARE R/AT
       NETTAGERE VILLAGE,
                               2


     KASABA HOBLI,
     BELURU TALUK,
     HASSAN DISTRICT - 573 201

4.   SMT. CHANDRAKALA
     W/O LATE SAGAMESHA,
     AGED ABOUT 26 YEARS,
     R/AT BOMMANAHALLI VILALGE,
     DUDDA HOBLI,
     HASSAN TALUK,
     HASSAN - 573 201
                                             ...RESPONDENTS
(BY SRI. MURTHY D L FOR R1-R3;
    V/O/DTD 12.03.2020, R4 IS DEAD)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1989
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
04.09.2015 PASSED IN MVC NO.662/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MACT BELUR, IN THE INTEREST OF
JUSTICE AND EQUITY.

IN M.F.A.NO.8542/2018

BETWEEN:
1.   CHANDRAMMA,
     W/O LATE SWAMANNA @ SWAMY,
     AGED ABOUT 49 YEARS

2.   LOKESHA,
     S/O LATE SWAMANNA @ SWAMY,
     AGED ABOUT 31 YEARS,

3.   KALAMMA,
     W/O LATE BASAVAIAH,
     AGED ABOUT 74 YEARS,
     ALL ARE R/OF
     NETTAKERE VILLAGE,
     KASABA HOBLI,
     BELUR TALUK,
     HASSAN DISTRICT - 573 115
                                3


NOTE: THE PETITIONER NO.4 BEFORE THE TRIBUNAL SINCE DIED
AND SHE DOES NOT HAVE LEGAL REPRESENTATIVES. HENCE IT IS
NOT NECESSARY TO MADE AS PARTY BEFORE THIS HON'BLE COURT.
                                              ... APPELLANTS
(BY SRI MURTHY D.L., ADVOCATE)
AND:

THE MANAGING DIRECTOR
KSRTC, BANGALORE
REP BY DIVISIONAL CONTROLLER,
KSRTC, CHIKKAMAGALORE DIVISON,
CHIKKAMAGALUR DISTRICT - 577 101.
                                                 ...RESPONDENT
(BY SRI. D.VIJAYAKUMAR, ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1989
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 04.09.2015
IN MVC NO.662/2014, AT ANNEXURE-A PASSED BY THE LEARNED
PRESIDING OFFICER, SENIOR CIVIL JUDGE AND MACT, BELUR, BY
ENHANCING THE COMPENSATION AWARDED TO THE APPELLANTS.

      THESE MFAs HAVING BEEN HEARD AND RESERVED ON
03.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

These two appeals are filed under Section 173(1) of the

Motor Vehicle Act, 1988 (hereinafter referred to as 'MV Act' for

short) challenging the judgment and award dated 04.09.2015 in

MVC.662/2014.

2. While MFA.No.602/2016 is filed by the KSRTC,

Bengaluru, which is respondent before the Tribunal seeking

dismissal of the claim petition or at least reduce the

compensation by holding that deceased has contributed towards

the accident, MFA.No.8542/2018 is filed by the claimant-

petitioners, seeking enhancement of the compensation.

3. Since these two appeals are arising out of the same

judgment and award, they are clubbed together and decided by

a common judgment.

4. For the sake of convenience the parties are referred

to by their rank before the Tribunal.

5. FACTS: The brief facts leading to the filing of the

petition are that petitioners are respectively the mother, brother,

grand mother and wife of deceased Sangamesh. On 02.01.2014

at about 12.15 p.m, deceased was proceeding on motor cycle

bearing registration No.KA 18/H 18 Suzuki Samurai on Beluru-

Bikkodu Road. Near Sanyasihalli while he was proceeding

towards Beluru, a KSRTC Bus bearing registration No.KA 18/F

252 (hereinafter referred to as the offending vehicle) coming

from Beluru side, driven by its driver in a rash or negligent

manner came from the opposite side and dashed against the

motor cycle of the deceased. In the said accident, deceased

sustained severe injuries and died on the spot.

5.1 At the time of accident deceased was doing

agriculture and earning Rs.10,000/- p.m. Petitioners were

dependent on him. The accident occurred due to the rash or

negligent driving by the driver of the offending vehicle and as

such petitioners are entitled for compensation.

6. After due service of notice, respondent appeared and

filed written statement admitting that at the time of accident,

the offending vehicle was proceeding from Beluru to Bikkodu

side. However, respondent has denied that accident occurred

due to the rash or negligent driving by the driver of the

offending vehicle. Respondent has specifically contended that at

the time of accident, the offending vehicle was proceeding on the

road which was in the higher gradient and he was driving the

vehicle slowly and cautiously. However, deceased was riding the

motor cycle bearing registration No.KA 18/1418 from the

opposite side i.e., coming from Bikkodu side towards Beluru side

which road was down gradient and he came in a rash or

negligent manner on the wrong side of the road. Observing the

same, the driver of the offending vehicle took the same on the

extreme left side of road and stirred it towards on the mud road

and managed to stop the offending vehicle before a tree.

However, the deceased came in a high speed and dashed against

the left portion of the offending vehicle. The accident occurred

due to the rash or negligent driving by the deceased himself.

Even though he tried to lodge a complaint, the concerned police

did not receive it and therefore he sent it to through RPAD. He

also filed PCR.No.24/2014.

6.1 Respondent has further pleaded that in the absence

of owner and insurer of the motor cycle, the petition is not

maintainable. Respondent has denied the age, occupation of the

deceased and also that petitioners were dependent on him and

has sought for dismissal of the claim petition.

7. Based on the pleadings, the Tribunal has framed

necessary issues.

8. In order to prove their case, petitioners have

examined petitioner No.1 as PW-1 and one witness as PW-2 and

relied upon Ex.P1 to 9.

9. On the other hand on behalf of respondent the driver

of the offending vehicle is examined as RW-1 and Ex.R1 to 11

are marked.

10. Vide the impugned judgment and award the Tribunal

has partly allowed the petition granting compensation in a sum

of Rs.13,97,000/- with interest at 10% p.a. and directed the

respondent to pay the same.

11. During the course of arguments, the learned counsel

appearing for the respondent submitted that the Tribunal has

erred in holding that the accident is due to the rash or negligent

driving by the driver of the offending vehicle. It has failed to

appreciate the fact that the deceased was proceeding on the

wrong side of the road in a high speed and even though in order

to avoid collusion, the driver of the offending vehicle stirred the

same to the extreme left side of the road on which it was

proceeding and managed to stop the bus on the mud road, the

deceased who came on the wrong side of the road i.e., who was

plying on the right portion of the road on which he was

proceeding and dashed against the offending vehicle. Inspite of

respondent taking such contention, the Tribunal has not given

any findings on that aspect.

11.1 He would further submitted that both PWs.1 and 2

are not eye witnesses to the incident. Their evidence with regard

to the rash or negligent driving of the offending vehicle by its

driver is hearsay. However, the driver of the offending vehicle

has given evidence on oath and spoken to about the incident

being an eye witness. However, the Tribunal has not appreciated

his evidence and as such the findings are perverse.

11.2 He would further submit that the Tribunal has

miserably failed to appreciate Ex.P4 which is mahazar/rough

sketch of the place of incident. It clearly establish the fact that

deceased was plying on the wrong side of the road and as he

was driving the vehicle in a rash or negligent manner, he was

unable to control the vehicle, as a result of which he dashed

against the offending vehicle. If not the whole negligence, at

least the Tribunal should have decided the contributory

negligence on the part of the deceased and reduced the

compensation.

11.3 He would further submit that the evidence of RW-1

the driver of the offending vehicle is consistent with the

mahazar/rough sketch at Ex.P4. The Tribunal has failed to

appreciate his evidence in proper perspective. As per the ration

card the age of deceased was 32 years at the time of accident.

Therefore, the Tribunal has erred in taking his age as 28 years at

the time of accident. Since the deceased was not in a permanent

employment, the Tribunal has erred in adding 50% of the

income to calculate the compensation payable. Since petitioner

No.2 is a major brother of the deceased, he cannot be treated as

dependent. Therefore, the deduction should have been 1/3rd

instead of 1/4th as made by the Tribunal. The compensation

granted is highly exorbitant.

12. On the other hand the learned counsel representing

the petitioners submitted that the compensation granted under

all the heads is on the lower side. Both compensation as well as

the rate of interest is liable to be enhanced.

13. Heard arguments of both sides and perused the

record.

14. Respondent has taken up a specific contention that

deceased was riding the motor cycle from Bikkodu side to Beluru

came on the wrong side of the road and dashed against the

offending vehicle and even though he tried to prevent the

accident by taking the offending vehicle to the extreme left side

on the mud road, he had to stop the vehicle as there was a tree

and by that time deceased came and dashed against the left

front portion of the offending vehicle and in that way he has

contributed towards the accident.

15. It is pertinent to note that the Tribunal has not given

any finding on this aspect. It has only proceeded to hold that

respondent liable to pay the compensation on the ground that a

charge sheet came to be filed against the driver of the offending

vehicle. It is also relevant to note that when the concerned

police did not take his complaint, the driver of the offending

vehicle has filed a private complaint and subsequently after due

trial, he has been acquitted as per the judgment at Ex.R5 (in

C.C.No.192/2014). The respondent has also relied upon Ex.P4

which is spot mahazar/sketch prepared with respect to the scene

of occurrence. In view of the specific contention taken by the

respondent that deceased also contributed towards the accident,

based on the material placed on record, it is necessary to

examine whether there is any contributory negligence on the

part of the deceased.

16. Neither the complainant nor PWs-1 and 2 are eye

witnesses of the incident. They have come to know about the

incident and based on the said information, PW-2 Jagadish who

is brother of the deceased has lodged the complaint. In the

complaint also, the gist of which is extracted in the FIR, the

complainant has stated that he came to know about the incident

from unknown person. In fact in the complaint at Ex.P2 also, the

complainant has stated that he came to know about the incident

from unknown person. In this case the petitioners have

examined one Jagadeesh as PW-2. During the course of his

Affidavit in lieu of examination-in-chief, he has deposed that on

the date of incident at around 12.15 p.m, he was proceeding

from Beluru towards Sanyasihalli and while he came near

temple, he found that a KSRTC bus and a motor cycle has met

with an accident and the rider of the motor cycle had died on the

spot and therefore, he called ambulance. Later on the dead body

was shifted in another vehicle to the hospital. However, in the

Criminal case, he is cited as an eye witness.

17. In fact this Jagadeesh who is examined as PW-4 in

the criminal case has also denied that he was an eye witness. He

has been treated as hostile and cross-examined by the

prosecution, wherein also he has denied that he witnessed the

incident. Thus, the petitioners are not having any eye witness

version of the incident. The entire evidence led by the petitioners

so far as the incident is concerned, it is hearsay. When compared

to the said evidence, the eye witness version of RW-1 the driver

of the offending vehicle is available, wherein he has deposed

that it was the deceased who was at fault and he came from the

wrong side of the road on which he was plying and dashed

against the offending vehicle and inspite of, he i.e., RW-1 trying

to prevent the accident by stirring the offending vehicle to the

extreme left side of the road, he could not prevent the accident

and he had to stop the offending vehicle as it approached a tree

and beyond it he could not proceed. The eye witness account of

RW-1 on oath is not countered by the petitioners by any other

testimony.

18. Now it is to be seen whether the evidence of RW-1 to

the effect that deceased contributed to the accident is supported

by any documentary evidence placed on record. As already

noted fortunately for the respondent, the Investigating Officer

has prepared the sketch of the scene of occurrence in the spot

mahazar itself, i.e., the sketch is part and parcel of the spot

mahazar at Ex.P4. In this sketch one could make out that at the

place of incident, the road which is running from North to South

is bent i.e., there is a curve exactly where the accident has

taken place. Undisputedly, the deceased was coming on motor

cycle from Bikkodu and was proceeding towards Beluru whereas

the driver of the offending vehicle was proceeding from Beluru

towards Bikkodu. Undisputedly, the driver of the offending

vehicle was on the left side of the road. Whereas the sketch

reveal that the deceased who was riding the motor cycle was on

the wrong side of the road on which he was plying i.e., instead

of proceeding on the left side, he was going on his right side.

19. On observing that the rider of the two wheeler was

coming from the wrong side of the road opposite to the offending

vehicle, RW-1 has tried to take the offending vehicle to the

extreme left side and while so doing he entered into the mud

road. Only after realizing that he could not further go towards

the left, as there was a tree, he has stopped the offending

vehicle. This fact is forthcoming from the photographs at Ex.P6.

The petitioners have not disputed that Ex.R6 are the

photographs of the scene of occurrence. As stated by RW-1 i.e.,

the driver of the offending vehicle, these photographs were

taken by the TV9 reporter. Thus, when the evidence of RW-1

coupled with the sketch in Ex.P4 and the photographs at Ex.R6

are examined, it is evident that on the date of accident,

deceased was riding the motor cycle on the wrong side of the

road and inspite of RW-1 i.e, driver of the offending vehicle

trying to prevent the accident, deceased came and dashed

against the offending vehicle and thereby contributed towards

the accident.

20. In the circumstances, though not the entire

negligent, there is at least 50% of the negligence on the part of

the deceased and therefore I hold that negligence attributed to

the deceased was 50% and remaining 50% of the negligence is

placed on the driver of the offending vehicle. To this extent the

findings of the Tribunal are required to be modified.

21. Now coming to the quantum of compensation

granted and whether it requires enhancement or reduction, as

the case may be. The respondent has taken up a specific

contention that the age of the deceased was not 28 years as

held by the Tribunal. According to the respondent, he was aged

32 years as on the date of the accident. For this the respondent

has relied upon the ration card dated 13.04.2009. However, the

copy of the ration card is not produced to ascertain the age of

the deceased. It is pertinent to note that in the G-tree produced

by the petitioners at Ex.P9, the age of all the persons is

specifically stated. However, intentionally the petitioners have

not chosen to give the age of the deceased. He was elder

brother of petitioner No.2. It appears to take the advantage of

the age of the deceased as noted in the PM report, petitioners

have intentionally withheld the information with regard to the

age of the deceased.

22. It is also relevant to note that in the charge sheet,

though the Investigating Officer has given the age of CW-2 to

10, 13, 15, intentionally he has not given the age of CW-1

Lokesh who is the brother of deceased. This also goes to show

that intentionally the age of the deceased is not disclosed to take

advantage of the PM report wherein his age is given as 28 years.

Since the intention of the petitioners is to claim higher

compensation, they have intentionally concealed the age of the

deceased. It was the responsibility of the respondent to produce

necessary documents to establish his age. In the absence of the

same, the Court is left with no other alternative but to rely upon

the PM report to say that the deceased was aged 28 years at the

time of accident.

23. The respondent has also pleaded that petitioner No.2

Lokesh being the major brother of the deceased was not

dependent on him, so also petitioner No.3 Kalamma the grand

mother and therefore petitioner Nos.1 and 5 are to be taken as

dependent of the deceased. Since petitioner No.2 is a major

brother of the deceased, he cannot be treated as dependent,

however, so far as petitioner No.3 the grand mother of the

deceased is concerned, her husband is also no more and

respondent has not placed any material on record that she is

having any other son to take care of. Therefore, petitioner No.3

is also held to be dependent on the deceased. However, during

the pendency of this appeal, petitioner No.4 i.e., the wife of

deceased has also died and therefore, it is held that only

petitioner No.1 and 3 are the dependents of the deceased.

Therefore, towards the personal and living expenses of the

deceased deduction is to be made at 1/3rd and not 1/4th as done

by the Tribunal.

24. Now coming to the quantum of compensation which

the petitioners are entitled. They have pleaded that deceased

was getting income of Rs.10,000/- . However, they have not

placed any evidence on record to establish the said fact. In the

absence of the same, the Tribunal has taken the notional income

of the deceased as Rs.6,000/-. Since the accident has taken

place during 2014, it would be reasonable to expect that

deceased was earning Rs.6,000/- p.m. The Tribunal has added

50% of the income towards loss of future prospects. Since

deceased was claimed to be an agriculturists, which comes under

private/self-employment, as per Magma General Insurance

Co.Ltd's case instead of 50%, 40% is required to be added

towards future prospects. 40% of 6,000/- comes to Rs.2,400/-.

Therefore, the notional income of the deceased is required to be

taken as Rs.8,400/- instead of Rs.9,000/- taken by the Tribunal.

Since the deceased was held to be aged 28 years, the 17

multiplier taken by the Tribunal is correct. With these

components, the loss of dependency is 8,400 x 12 x 17 x 2/3rd =

Rs.11,42,400/-. As per the decision of the (2017) 16 SCC

6801(Pranay Sethi's case) and (2018) 18 SCC 130 2(Magma

Genl.Insurance case), petitioner Nos.1, 2 and 4 are entitled for

compensation in a sum of Rs.40,000/- each under the head loss

of consortium, which works out to Rs.1,20,000/-. When major

portion of the compensation is granted under the head loss of

dependency, a sum of Rs.15,000/- each under the head loss of

estate and funeral expenses is to be granted. Thus, in all the

compensation payable comes to Rs.12,92,400/-. Since the

respondent has paid Rs.50,000/- immediately after the accident

by way of no fault liability, the said sum has to be deducted out

of Rs.12,92,400/-. After deduction of Rs.50,000/-, the

compensation works out to Rs.12,42,400/-. Since it is held that

National Insurance Co. Ltd vs Pranay Sethi & Ors

Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram & Ors

the deceased also contributed 50% of the negligence towards

the accident, petitioners are entitled for only 50% out of the

compensation so determined. 50% of Rs.12,42,400/- comes to

Rs.6,21,200/-. Therefore, the Tribunal has erred in granting

compensation in a sum of Rs.13,97,000/- and accordingly, the

same is reduced to Rs.6,21,200/-. To this extent the appeal filed

by the respondent succeeds and the appeal filed by the

petitioners fail and accordingly, I proceed to pass the following:

ORDER

(i) MFA.No.602/2016 filed by respondent is allowed.

(ii) MFA.No.8542/2018 filed by petitioners is dismissed.

(iii) The compensation on account of death of deceased Sangamesh is quantified at Rs.12,42,400/- as against Rs.13,97,000/-

granted by the Tribunal. However, the petitioners are entitled for only Rs.6,21,200/- being 50% of the quantified compensation.

(iv) The registry is directed to transmit the amount in deposit to the Tribunal.

(v) The registry to transmit the trial Court record along with copy of this judgment to the Tribunal.

Sd/-

JUDGE

RR