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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6TH DAY OF OCTOBER, 2015

:PRESENT:

THE HON’BLE MR. JUSTICE N.K. PATIL

AND

THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

M.F.A.No. 1382 of 2015 (MV) C/W. M.F.A.No. 1820 of 2015 (MV)

M.F.A.No. 1382 of 2015 (MV) Between: The Managing Director, Karnataka State Road Transport Corporation, Central Office, K.H. Road, Shanthinagar, Bangalore-27.

….Appellant (By Sri. D. Vijaya Kumar, Advocate) And:

1. Sri. Mallikarjuna @ Mallikarjunachar, S/o. Late Puttaswamachari, Aged about 57 years.

2. Smt. Mani,

W/o. Sri. Mallikarjuna @ Mallikarjunachar, Aged about 48 years. Both are R/at. No.63, Thathanahalli, Periyapatna Taluk,

R

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Mysore-571 107.

3. Smt. Yashwanthi, W/o. Sri. Ravikumar.S, D/o. Sri. Mallikarjuna, Aged about 33 years. R/at. No.204/47, I ‘D’ Main Road, 8th ‘A’ Cross, K.S. Town, Bangalore-560 060.

4. Smt. Bhagya,

W/o. Sri. Nata @ Nataraju, D/o. Sri. Mallikarjuna, Aged about 31 years. R/at. No.63, Thathanahalli, Periyapatna Taluk, Mysore-571 107. All are presently R/at. No.267/3, 2nd Floor, I Cross, 2nd Main Road, Changaiah Layout, Thyagarajanagar, Bangalore-560 028.

….Respondents (By Sri. K.T. Gurudeva Prasad, Advocate for R1 to R4)

********

This MFA is filed U/s. 173(1) of MV Act against the Judgment and Award dated: 14/11/2014, passed in MVC No.2993/2013, on the file of the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), awarding compensation of

`25,85,000/- with interest at 6% p.a. from the date of

petition till realization and to reduce the same.

M.F.A.No. 1820 of 2015 (MV)

Between:

1. Sri. Mallikarjuna @ Mallikarjunachar,

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S/o. Late Puttaswamachari, Aged about 56 years.

2. Smt. Mani,

W/o. Sri. Mallikarjuna @ Mallikarjunachar, Aged about 47 years. Both are R/at. No.63, Thathanahalli, Periyapatna Taluk, Mysore-571 107.

3. Smt. Yashwanthi,

W/o. Sri. Ravikumar.S, D/o. Sri. Mallikarjuna, Aged about 32 years. Permanent R/o. No.204/47, I ‘D’ Main Road, 8th ‘A’ Cross, K.S. Town, Bangalore-560 060.

4. Smt. Bhagya,

D/o. Mallikarjuna, Aged about 30 years. Permanent R/o. No.63, Thathanahalli, Periyapatna Taluk, Mysore District. All are presently R/at. No.267/3, 2nd Cross, I Cross, 2nd Main Road, Changaiah Layout, Thyagarajanagar, Bangalore-560 028.

….Appellants (By Sri. K.T. Gurudeva Prasad, Advocate) And: The Managing Director, K.S.R.T.C., Central Office, Shanthinagara, Bangalore-27.

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(Chamarajanagar Division) ….Respondent

(By Sri. D. Vijaya Kumar, Advocate)

******** This MFA is filed U/s. 173(1) of MV Act against the

Judgment and Award dated: 14/11/2014, passed in MVC No.2993/2013, on the file of the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), partly allowing the claim petition for compensation and seeking enhancement of compensation.

These M.F.As. coming on for Admission this day,

N.K. PATIL J, delivered the following:

:J U D G M E N T:

These two appeals respectively by the Corporation

and by the claimants are directed against the same

impugned judgment and award dated 14/11/2014,

passed in MVC No.2993/2013, by the Judge, Court of

Small Causes and XXVI ACMM and Motor Accident

Claims Tribunal, Bangalore (SCCH-9), (for short

‘Tribunal’).

2. The Tribunal by its judgment and award, has

awarded a sum of `25,85,000/- under different heads

with interest at 6% per annum from the date of petition

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till its realization, fixing entire liability on the part of the

driver of the bus belonging to the Corporation as against

the claim of the claimants on account of the death of

Sri. Hemanth Kumar.T.M.

3. It is the case of the Corporation that, the

quantum of compensation awarded by the Tribunal is

on the higher side and disproportionate to the income of

the deceased and therefore, it is liable to be reduced

and that the Tribunal has erred in not fixing any

negligence on the part of the deceased, rider of motor

bike bearing Reg.No.KA.02.V.959 and therefore, it is

liable to be set aside by fixing reasonable negligence on

the part of the deceased. Whereas, it is the case of the

claimants that, the quantum of compensation and the

rate of interest awarded by the Tribunal is inadequate

and it requires to be enhanced reasonably.

4. In brief, the facts of the case are:

The claimants are the parents and sisters of the

deceased. On account of the death of the deceased Sri.

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Hemanth Kumar T.M. in the road traffic accident,

claimants have filed a claim petition before the Tribunal

under Section 166 of M.V. Act, claiming compensation,

contending that, on 02.01.2013 at about 12.50 p.m.

deceased was going in his motor bike bearing

Reg.No.KA.02.V.959 on Cottonpet Main road infront of

Sai Telicom shop, at that time, the driver of the KSRTC

bus bearing Reg.No.KA.10.F.89 came in a rash and

negligent manner and dashed to the bike in which

deceased was going. Due to which, deceased fell down

and bus ran over his body and he sustained fatal

injuries. Immediately, he was shifted to Victoria

Hospital, Bangalore and he succumbed to the injuries

sustained in the road traffic accident.

5. It is the further case of the claimants that,

deceased was aged about 27 years, hale and healthy

prior to the accident, working as Civil Police Constable

at Chennamma Achukattu Police Station, Bangalore

and drawing the salary of `16,998/- per month. Due to

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his untimely death, claimants have suffered loss of

dependency as they are entirely depending upon his

income, love and affection, apart from mental shock

and agony.

6. The said claim petition had come up for

consideration before the Tribunal. The Tribunal, after

appreciating the oral and documentary evidence, has

allowed the claim petition in part, awarding the

compensation of `25,85,000/- under different heads

with interest at 6% p.a., from the date of petition till its

realization, fastening entire liability on driver of the bus

belonging to the Corporation.

7. Being aggrieved by the said judgment and

award, both the Corporation and the claimants have

presented these appeals seeking appropriate reliefs as

stated supra.

8. We have heard the learned counsel appearing

for the Corporation and the learned counsel appearing

for claimants in these appeals.

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9. The submission of learned counsel Sri. D.

Vijaya Kumar, appearing for Corporation, is that, the

Tribunal has committed an error, much less material

irregularity in fixing entire negligence on the part of

the driver of the bus belonging to the Corporation

without fixing any negligence on the part of the

deceased, rider of the Motor bike bearing

Reg.No.KA.02.V.959 as two vehicles were involved in

the accident, there is equal negligence on the part of the

drivers of both the vehicles. To substantiate the said

submission, he submitted placing reliance on Ex.P3-

Sketch, Ex.P4-Mahazar and Ex.P5-IMV report that, it

is crystal clear from the contents of the said documents

that no damage is caused to the bus and only damage

is caused to the motor bike and from the contents of

mahazar it emerges that there is contributory negligence

on the part of the deceased, rider of the motor bike as

deceased while under the process of overtaking the bus

from the left side of the road, met with an accident on

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account of his own negligence and there is no

negligence on the part of the driver of the bus. But this

aspect of the matter has not been considered or

appreciated by the Tribunal while fixing negligence.

Therefore, he submitted that, the Tribunal ought to

have appreciated the evidence of RW1 coupled with the

contents of Exs.P3 to P5 and atleast, the Tribunal

ought to have fixed contributory negligence in the ratio

of 50% each i.e. 50% on the part of the driver of the bus

belonging to the Corporation and 50% on the part of the

deceased, the rider of the motor bike bearing

Reg.No.KA.02.V.959. The reasoning given by the

Tribunal for fastening entire liability on the part of the

driver of the bus belonging to the Corporation is

contrary to the evidence on record. Therefore, he

submitted that, negligence may be refixed in the ratio

of 50% each on the part of the drivers of both the

vehicles by setting aside the entire negligence fixed on

the part of the driver of the bus.

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10. Further, learned counsel appearing for

Corporation submitted that, the compensation awarded

by the Tribunal is on the higher side and the Tribunal

has erred in adding another 50% towards future

prospects and applying multiplier of ‘17’ taking the age

of the deceased contrary to the law laid down by the

Apex Court and this Court while calculating loss of

dependency. Further, he submits that the Tribunal has

erred in taking the age of the mother of the deceased as

46 years. Therefore, he submitted that the impugned

judgment and award passed by the Tribunal is liable to

be modified by fixing reasonable negligence on the part

of the deceased, rider of the motor bike and by reducing

the compensation reasonably.

11. Per contra, learned counsel Sri. K.T.Gurudeva

Prasad, appearing for the claimants inter-alia,

vehemently submitted that, deceased was aged about

27 years, working as Police Constable and drawing the

salary of `16,998/- as per Ex.P9 and therefore, the

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Tribunal has justified in assessing the income of the

deceased at `16,600/- per month, adding 50% of the

same towards future prospects in view of the law laid

down by the Apex Court in Sarla Verma’s case reported

in 2009 ACJ 1298 and applying Multiplier of ‘17’

taking the age of the deceased as 27 years and

therefore, it does not call for interference.

Regarding applying multiplier of ‘17’ is concerned,

he has submitted placing reliance on the judgment of

the Apex Court in the case of Munna Lal Jain and

another Vs.Vipin Kumar Sharma and others reported

in 2015 AIR SCW 3105 that, the Apex Court in para-

13 of the said judgment, has held that, the multiplier

should be chosen from the table having regard to the

age of the deceased and therefore, the Tribunal has

justified in adopting multiplier of ‘17’ taking the age of

the deceased as 27 years and interference by this Court

is not called for.

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Further, he submitted that, the Tribunal has

erred in not awarding reasonable compensation towards

loss of love and affection, loss of estate and towards

transportation of dead body and funeral expenses and

what is awarded is inadequate and requires to be

enhanced reasonably in the light of the judgment of the

Apex Court and this Court. Further, he submitted that

the rate of interest awarded is on the lower side and is

liable to be enhanced reasonably atleast at 9 to 10% in

the light of the judgment of the Apex Court and this

Court.

Further, regarding contributory negligence, he

submitted that, there is no force in the submission

made by learned counsel appearing for the Corporation

that 50% of the negligence should be fixed on the part

of the deceased, rider of the motor bike and it is liable to

be rejected. To substantiate the said submission, he

submitted taking us through the contents of Ex.P1 and

the chargesheet is filed against the driver of the bus

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which is the conclusive proof and from the contents of

Ex.P5-IMV report, there is no negligence on the part of

the deceased, rider of the motor bike and the accident

has occurred entirely on account of the negligence on

the part of the driver of the bus which came from

behind the deceased and hit the motor bike due to

which, deceased fell down, bus ran over him and

sustained fatal injuries and succumbed to the same.

Therefore, he submitted that, the reasoning given by

the Tribunal for fixing entire negligence on the part of

the driver of the bus belonging to the Corporation is just

and reasonable and interference by this Court is not

called for.

12. After hearing the learned counsel for the

parties and after careful perusal of the material

available on record at threadbare, including the

impugned judgment and award passed by the Tribunal,

the points that arise for our consideration are:

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(i) Whether the entire negligence fixed by the Tribunal on the part of the driver of the bus belonging to the Corporation is sustainable in law?

(ii) Whether the quantum of compensation

awarded by the Tribunal is just and reasonable?

Re.Point No1.:

13. The occurrence of the accident and the death

of the deceased are not in dispute. The deceased was

aged about 27 years, working as Civil Police Constable

and the claimants are his parents and sisters. It is also

not in dispute that, two vehicles were involved in the

accident, viz., KSRTC bus bearing Reg.No.KA.10.F.89

and the motor bike bearing Reg.No.KA.02.V.959.

Further, it emerges from the material on record

that, the Tribunal on the basis of Ex.P1-copy of the

FIR and after discussing the same in para-13 of its

judgment has observed that, on account of the

accident, deceased who was going in his Motor bike fell

down and bus ran over his body and he died due to the

injuries. Further, the Tribunal has observed that the

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jurisdictional police have filed a charge-sheet against

the driver of KSRTC bus as per Ex.P2 and the contents

of Ex.P3-sketch and Ex.P4- Spot mahazar establish that

the accident was due to the negligent driving of KSRTC

bus driver and Ex.P5-IMV report goes to show that there

was no mechanical defect in the vehicles involved in the

accident to cause the accident.

It is significant to note that, the Tribunal has

erred in not properly appreciating the contents of

Ex.P4 and Ex.P5. In Ex.P5 the nature of injuries

caused to both the vehicles was spelled out by the

independent officer of RTO. From the contents of Ex.P4

and P5, we find some substance in the submission

made by learned counsel appearing for the Corporation

that there is some negligence on the part of the

deceased, rider of the motor bike since in the process of

overtaking the bus from left side, he came infront of the

bus the accident has caused. Therefore, we are of the

considered view after re-evaluation of the oral and

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documentary evidence available on file that there is

negligence on the part of the deceased, rider of the

motor bike to an extent of 20% and on the part of the

driver of bus to an extent of 80%. Accordingly, we

hereby set aside the entire negligence fixed by the

Tribunal on the part of the driver of the bus belonging

to the Corporation and re-fix the negligence in the ratio

of 80:20 i.e. 80% on the part of the driver of the bus and

20% on the part of the deceased, rider of the motor bike.

Re.Point No.2:

14. The claimants are the parents and sisters of

the deceased. It is the case of the claimants that,

deceased was aged about 27 years, hale and healthy

prior to the accident, working as Police Constable and

drawing the salary of `16,998/- per month as per

Ex.P9-salary certificate. The Tribunal, taking net

income of the deceased at `16,600/- per month after

deducting `398/- towards allowance, adding 50% of

`16,600/- towards future prospects in the light of the

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judgment of the Apex Court in Sarla Verma’s case

reported in 2009 ACJ 1298 has assessed his total

monthly income at `24,900/- and annually at

`2,98,800/-, after deducting 50% towards personal

and living expenses of the deceased since he was a

bachelor and applying the multiplier of ‘17’ taking the

age of the deceased, has awarded a sum of `25,40,000/-

towards loss of dependency. As rightly pointed out by

the learned counsel appearing for the claimants, the

multiplier of ‘17’ adopted by the Tribunal taking the

age of the deceased is just and proper and it does not

call for interference in the light of the law laid down by

the Apex Court in (2011) 3 Supreme Court Cases 566

(P.S.Somanathan and others Vs. District Insurance

Officer and another) wherein, at para-16, the Apex

Court has observed that:

“16. The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant,

since the daughter was impleaded, and was

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49 years of age. Admittedly, the deceased was looking after the entire family. In determining the age of the mother, the High Court should have accepted the age of the

mother at 65, as given in the claim petition, since there is no controversy on that. By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5, even if we accept the reasoning of the High Court to be correct. The reasoning of

the High Court is not correct in view of the ratio in Sarla Verma. Following the same the High Court should have proceeded to compute the compensation on the age of the deceased. Thus, the finding of the High Court is contrary to the ratio in Sarla

Verma, which is the leading decision on this question and which we follow.”

and in (2015) 6 Supreme Court Cases 347 (Munna Lal

Jain and another Vs. Vipin Kumar Sharma and others)

wherein, at para-12, the Apex Court has observed that:

“12. In Sarla Verma, at para 19, a two-Judge Bench dealt with this aspect in Step 2. To quote: (Scc p.133)

“19. ….Step 2 (Ascertaining the multiplier)

Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but

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for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The

multiplier should be chosen from the said table with reference to the age of the deceased.”

Therefore, we are of the considered view that, the

compensation of `25,40,000/- awarded by the Tribunal

towards loss of dependency is just and reasonable and

it does not call for interference.

15. As rightly pointed out by the learned counsel

appearing for the claimants, the compensation of

`45,000/- awarded by the Tribunal towards

conventional heads is on the lower side and is liable to

be enhanced reasonably. Having regard to the facts and

circumstances of the case as referred above and in the

light of the judgment of the Apex Court and this Court

and the accident is of the year 2013, we award a sum

of `1,00,000/- towards loss of love and affection at the

rate of `25,000/- each to the claimant Nos. 1 to 4,

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`25,000/- towards loss of estate and `25,000/-

towards transportation and funeral expenses. In all,

the claimants are entitled to the total compensation of

`26,90,000/- instead of `25,85,000/- awarded by the

Tribunal.

16. Regarding rate of interest, as rightly pointed

out by the learned counsel appearing for the claimants,

6% interest per annum awarded by the Tribunal is on

the lower side, since the accident is of the year 2013. In

the light of the judgment of Apex Court and this Court,

we award the rate of interest at 9% per annum on the

entire compensation instead of 6% awarded by the

Tribunal.

17. For the foregoing reasons, the appeal filed by

the Corporation and the appeal filed by the claimants

are allowed in part.

The impugned judgment and award dated

14/11/2014, passed in MVC No.2993/2013, by the

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Judge, Court of Small Causes and XXVI ACMM and

Motor Accident Claims Tribunal, Bangalore (SCCH-9), is

hereby modified, by fixing negligence in the ratio of

80:20 each i.e. 80% on the part of the driver of the Bus

belonging to the Corporation and 20% on the part of the

deceased, rider of the motor bike bearing

Reg.No.KA.02.V.959 and by awarding the

compensation of `26,90,000/- instead of `25,85,000/-

with interest at 9% p.a., from the date of petition till its

realization on the entire compensation.

Out of the compensation of `26,90,000/-, if 20%

(`5,38,000/-) is deducted towards contributory

negligence on the part of the deceased, rider of the

motor bike bearing Reg.No.KA.02.V.959, the remaining

compensation comes to `21,52,000/-. There would be a

reduction of compensation of `4,33,000/- (`25,85,000-

`21,52,000/-).

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The Corporation is directed to deposit the

compensation amount with interest at 9% p.a. from the

date of petition till its realization, after deducting

whatever amount deposited by it till today, within

three weeks from the date of receipt of the copy of this

judgment.

The apportionment and manner of disbursement

ordered by the Tribunal gets proportionately reduced to

the extent of reduction made by this Court.

The amount deposited by the Corporation shall be

transmitted to the jurisdictional Tribunal forthwith.

Draw the award, accordingly.

In view of disposal of main matters, the relief

sought by the claimants in I.A.No.2/2015 in

M.F.A.No.1382/2015 does not survive for consideration.

Hence, it is disposed of as having become infructuous.

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Learned counsel Sri.D.Vijaya Kumar, is permitted

to file vakalth for Corporation in M.F.A.No.1820/2015

within four weeks.

SD/-

JUDGE

SD/- JUDGE

tsn*