Karnataka High Court

The Divisional Controller vs K R Sunanda on 18 August, 2023

Bench: T G Gowda

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                                                               NC: 2023:KHC:29775
                                                              MFA No. 7513 of 2016




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 18TH DAY OF AUGUST, 2023

                                                BEFORE

                       THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

                                     MFA NO.7513 OF 2016 (MV-D)

                       BETWEEN:

                       THE DIVISIONAL CONTROLLER KSRTC
                       CHANNARAYAPATNA DEPO, HASSAN DIVISION
                       HASSAN DISTRICT - 573 116, (OWNER CUM
                       INTERNAL INSURER OF THE BUS BEARING
                       REG.NO.KA-13-F-1991) NOW BY THE
                       MANAGING DIRECTOR, KSRTC
                       CENTRAL OFFICES, K.H.ROAD
                       SHANTHINAGAR, BENGALURU - 560 027
                       REP. BY ITS CHIEF LAW OFFICER         ... APPELLANT

                       (BY SRI. F.S.DABALI, ADV.)

                       AND:

Digitally signed by    1.      K.R.SUNANDA
MALA K N
                               W/O LATE B.MAHADEVA, AGED ABOUT 40 YEARS
Location: HIGH COURT
OF KARNATAKA
                       2.      B.M.YOGASREE
                               D/O LATE B.MAHADEVA, AGED ABOUT 23 YEARS

                       3.      B.M.CHAITHRA
                               D/O LATE B.MAHADEVA, AGED ABOUT 21 YEARS

                       4.      B.M.CHANDAN
                               S/O LATE B.MAHADEVA, AGED ABOUT 19 YEARS

                       5.      B.M.PARIMALA
                               D/O LATE B.MAHADEVA, AGED ABOUT 17 YEARS
                               SINCE MINOR, REP. BY MINOR GUARDIAN &MOTHER
                               SMT.K.R.SUNANDA, 1ST RESPONDENT

                       6.      B.G.BOREGOWDA
                               S/O LATE P.GOWDAIAH, AGED ABOUT 76 YEARS
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                                        NC: 2023:KHC:29775
                                       MFA No. 7513 of 2016




7.    LAXMAMMA
      W/O BOREGOWDA, AGED ABOUT 62 YEARS

      RESPONDENT NOS. 1 TO 7 ARE R/AT
      BENAGANAHALLI VILLAGE, ANKANAHALLY POST
      CHUNCHANAKATTE HOBLI, K.R.NAGAR TALUK
      MYSURU DISTRICT - 571 6023

8.    KRISHNAMURTHY
      S/O LATE YELLAPPARAJU B.,
      AGED ABOUT 67 YEARS
      R/O NO.1296, B.N.STREET
      MANDI MOHALLA
      MYSURU - 570 001

9.    THE DIVISIONAL MANAGER
      THE ORIENTAL INSURANCE CO.LTD.
      T.P.HUB, D.O.II NO.2903, 1 ST FLOOR
      NEW MUSLIM HOSTEL COMPLEX
      OPP.FIRE BRIGADE, SARASWATHIPURAM
      MYSORE - 570 009, INSURER OF THE
      AMBASSADOR CAR

10.   GANDHI G. N.
      NINGEGOWDA, AGED ABOUT 37 YEARS
      KSRTC DRIVER, CHANNARAYAPATNA DEPO
      HASSAN DIVISION, HASSAN DIST - 573 116
                                      ... RESPONDENTS

(BY SRI.C.R.VENKATESH, ADV. FOR R1 TO R7;
    SRI.R.GOVINDARAJAN, ADV. FOR R9;
    R8 & R10 NOTICE SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.08.2016
PASSED IN MVC NO.2/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MEMBER, MACT, K.R.NAGAR,
AWARDING COMPENSATION OF RS.34,45,200/- WITH
INTEREST AT 9% P.A., FROM THE DATE OF PETITION TILL
THE DATE OF ITS REALIZATION.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.07.2023 AND COMING        ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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                                          NC: 2023:KHC:29775
                                         MFA No. 7513 of 2016




                      JUDGMENT

In this appeal, K.S.R.T.C. has challenged the

judgment and award dated 23.08.2016 passed by the

learned Senior Civil Judge and J.M.F.C. and Member,

M.A.C.T., K.R. Nagar ('the Tribunal' in short) in

M.V.C.No.2/2014.

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before the

Tribunal.

3. The brief facts of the case are, on 14.09.2013

at about 2:30 pm, the husband of the first petitioner,

father of the petitioners No.2 to 5 and son of the

petitioners No.6 and 7 B. Mahadeva, the deceased

while travelling as a passenger in the car bearing

Reg.No.CAA-457 from Mysuru to K.R. Nagar near

Bharat Petroleum Bunk at Bilikere Village, K.S.R.T.C.

bus bearing Reg.No.KA-13/F-1991 driven from Hassan

side towards Mysuru dashed against the car injuring

the inmates of the car, killing the deceased at the spot.

NC: 2023:KHC:29775 MFA No. 7513 of 2016

The petitioners being the dependants of the deceased

have approached the Tribunal seeking compensation

under Section 166 of the Motor Vehicles Act, 1988.

and 4. The Tribunal after taking the evidence recorded

its finding that driver of the car has contributed 80%

and the driver of the K.S.R.T.C. bus has contributed

20% to the accident and assessed the compensation at

Rs.34,45,200/- and directed the K.S.R.T.C. to deposit

20% of the compensation. Aggrieved by the same,

K.S.R.T.C. has filed this appeal on various grounds.

4. Heard the arguments of Sri. F.S. Dabali,

learned counsel for the appellant/K.S.R.T.C.,

Sri. C.R. Venkatesh, learned counsel for the

respondents No.1 to 7, Sri. R. Govindarajan, learned

counsel for the respondent No.9/Insurance Company.

5. It is the contention of the learned counsel for

the K.S.R.T.C. that at the place of accident, there is a

road divider and the bus was going towards Mysuru on

its way, whereas the car, ignoring the incoming of the

NC: 2023:KHC:29775 MFA No. 7513 of 2016

traffic, all of a sudden crossed over to the right side of

the road jumping the divider and hit against the

K.S.R.T.C. bus. If the driver of the car all of a sudden

comes and dashes against the bus, attribution of 20%

contributory negligence is not proper. It is also

contended that interest of 9% is awarded without any

basis as no banks will offer interest at 9% and sought

for modification.

6. Per contra, learned counsel for the petitioners

has contended that though the accident took place on

the right side of the road, the car has crossed the

divider, the accident was not taken place at the

junction, driver of the car wanted to fill the fuel tank

while going towards K.R. Nagar has crossed over the

junction going towards the petrol bunk situated beside

the main road, at that time K.S.R.T.C. bus knowing

well that the car is coming from the opposite direction,

dashed against the car and complete negligence is

against the driver of the bus. It is further contended

that the driver of the bus having no licence to cause

NC: 2023:KHC:29775 MFA No. 7513 of 2016

the accident even though the vehicle is coming from

the opposite wrong direction and therefore,

contributory negligence has to be enhanced minimum

of 40% against the driver of the bus. Accordingly, he

sought for modification of the award.

7. Learned counsel for the Insurance Company of

the car has contended that on the date of accident, the

car did not possess valid insurance, the Tribunal has

rightly exonerated the Insurance Company and he has

supported the impugned judgment.

8. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

9. There is no dispute as to the accident that

took place on 14.09.2013 at Bilikere Village resulting

instant death of the deceased and the deceased was

the passenger of the car, petitioners being the wife,

children and parents are entitled to claim

compensation. The Tribunal attributed 20%

NC: 2023:KHC:29775 MFA No. 7513 of 2016

negligence against the K.S.R.T.C. bus and 80% against

the driver of the car. The material on record,

particularly the spot mahazar and also the sketch at

Ex.P3 and P4 clearly points out that at the place of

accident, the width of the road is 40 ft., middle of the

road there is a divider. Hence, for the vehicles coming

and going on either side of the divider, 20 ft. is the

width of the road available, hence sufficient width of

the road is available at the spot. Near the place of

accident, there is an opening of the divider facilitating

the crossing of the vehicles from one side to other

side. Near the place of accident, at about 200 ft.,

there is a Bharat Petroleum Bunk and the evidence

points out that the car which was going towards K.R.

Nagar has taken deviation and moving towards Bharat

Petroleum bunk at Bilikere for fueling. The sketch

clearly points out that the car has crossed the divider

and moved substantially towards petrol bunk on its

wrong side. K.S.R.T.C. bus came from K.R. Nagar side

has clear vision of car coming from opposite direction

NC: 2023:KHC:29775 MFA No. 7513 of 2016

as the road is straight. The Tribunal relying upon the

evidence on record came to the conclusion that though

the car was moving on the wrong side of the road, the

bus has no authority to dash against the car. If the

driver of the bus was very cautious, he had ample

space on the left side of the road, he could have

avoided hitting against the car. But the driver did not

made any efforts to avoid the accident. The impact of

the accident goes to demonstrate the death of two of

the passengers at the spot which clearly explains the

negligence on part of the bus driver. At the same

time, the driver of the car ought not to have taken the

car on the right side of the divider and he ought to

have gone forward and taken U-turn on the next

opening of the divider. Instead, he drove the car on

the wrong direction and therefore, the Tribunal is right

in attributing major contributory negligence against the

driver of the car. Since the Tribunal has considered

the materials on record in arraying at 20%

NC: 2023:KHC:29775 MFA No. 7513 of 2016

contributory negligence against the driver of the bus, I

found no reason to interfere in the said finding.

10. The K.S.R.T.C. has also challenged the

quantum of compensation assessed by the Tribunal.

The deceased was aged 48 years. He was a practicing

Advocate enrolled in the year 1993 with 20 years of

practice and also doing agriculture. The Tribunal has

assessed the income of the deceased at Rs.20,000/-

per month. In the year 2013, notional income of a

person with no proof of income is assessed at

Rs.8,000/-. The petitioners have not produced any

evidence for the proof of income of the deceased

expect 16 R.T.C. extracts. It is seen that R.T.C.

extracts are not standing in the name of the deceased.

In the absence of proof of income, the Tribunal has

carried away on the guise of the deceased was an

Advocate which is not proper. Even if the notional

income of Rs.8,000/- is taken for a person with no

proof of income, the average income that the Tribunal

could have taken is Rs.15,000/- for an Advocate

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NC: 2023:KHC:29775 MFA No. 7513 of 2016

practicing in moffussil area. Having regard to the age

of the deceased, future prospectus of 25% could have

been added, thereby income comes to Rs.18,750/-.

Since the family consists of seven dependants, 1/5th of

it has to be deducted towards personal expenses. If

so, Rs.18,750/- minus 3,750/- is equal to

Rs.15,000/- x 12 x 13 multiplier is equal to

Rs.23,40,000/- towards loss of dependency. Since

there are seven dependants, Rs.20,000/- each loss of

consortium to wife, love and affection to the children

and parents and Rs.15,000/- towards funeral

expenses, Rs.15,000/- towards loss of estate.

Together comes to Rs.25,10,000/- as against

Rs.34,95,200/- thereby just compensation that the

petitioners are entitled to. Hence, assessment of

higher compensation by the Tribunal has no rationale,

thereby I found valid reason in the argument of the

K.S.R.T.C. that excess compensation is awarded.

Hence, the petitioners are entitled to total

compensation of Rs.25,10,000/- as against

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NC: 2023:KHC:29775 MFA No. 7513 of 2016

Rs.34,95,000/- awarded by the Tribunal, thereby

reduction of Rs.9,85,200/-.

11. As regarding interest is concerned, the

Tribunal has awarded 9% which is on the higher side.

Considering the prevailing bank rates interest at

relevant point of time, reasonable interest of 6% p.a.

is proper. Accordingly, the appeal filed by the

K.S.R.T.C. merits consideration. In the result, I pass

the following:

ORDER

i) Appeal is allowed in part.

ii) The impugned judgment is modified.

iii) The petitioners are entitled to total compensation of Rs.25,10,000/- as against Rs.34,95,200/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the realization.

iv) The K.S.R.T.C. is directed to deposit 20% of Rs.25,10,000/- minus Rs.50,000/- already paid with interest at 6% p.a. from the date of petition till the date of realization.