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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*