Smt Nazeema Bhanu Vs Divisional Controller Ksrtc

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.10.2019 PASSED IN MVC NO. 1558/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 2062/2020

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BETWEEN:

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DIVISIONAL CONTROLLER K S R T C, BELUR DIVISION CHICKMAGALURU PRESENTLY BY K.S.R.T.C CENTRAL HEAD OFFICE, K.H.ROAD, DOUBLE ROAD, SHANTHINAGAR, BENGALURU-560027.

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REP. BY CHIEF LAW OFFICER … APPELLANT

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(BY SMT. SONU S, ADVOCATE FOR SRI. RAJASHEKAR S, ADVOCATE)

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AND:

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NAZEEMA BHANU AGED ABOUT 38 YEARS W/O KHALID KHAN

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KHALID KHAN AGED ABOUT 48 YEARS S/O LATE JABBAR KHAN

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MEHAB SANIYA AGED ABOUT 18 YEARS D/O KHALID KHAN

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ALL ARE R/AT AREHALLI VILLAGE, IDGA MOHALLA, BELUR TALUK, HASSAN,

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HASSAN DISTRICT-573115

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PRESENTLY R/AT PENSION MOHALLA HASSAN-573201. … RESPONDENTS

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(BY SRI. VIJAY KUMAR T, ADVOCATE FOR R1 TO R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 18.10.2019, PASSED IN MVC NO.1558/2018, ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.15,62,000/- WITH INTEREST AT THE RATE OF 9 PERCENT P.A., FROM THE DATE OF PETITION TILL PAYMENT AND ETC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Though the matters have come up for admission, with the consent of both sides, the matters are taken up for final disposal. The above appeals arise out of the judgment and award in MVC No.1558/2018 on the file of V Additional District and Sessions Judge, Hassan.

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The appellants in MFA No.3908/2020 were the claimant Nos.1 to 3 and respondent on the said case was the sole respondent in MVC No.1558/2018. For the purpose of convenience, henceforth the parties are referred according to their ranking before the Tribunal.

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Claimant Nos.1 and 2 are the parents and claimant No.3 is the sister of deceased Khathib Khan. On 06.07.2018 at 6.00 p.m., when Khathib Khan was proceeding on his motorcycle bearing No.KA-46-A-3740 near Kallalli Forest, oncoming KSRTC bus bearing No.KA-18-F-459 hit the said motorcycle. Khathib Khan succumbed to the accidental injuries on the spot.

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The claimants filed in MVC No.1558/2018 before the Tribunal contending that the accident occurred due to the actionable negligence on the part of the driver of the bus bearing No.KA-18-F-459 which was owned by the respondent. They contended that Khathib Khan was running Mobile Shop in Halebeedu, earning 20,000/- per month and they were dependent on his income. They claimed that due to his death, they suffered pecuniary and non-pecuniary damages, and respondent is liable to pay compensation of 20 lakhs.

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The respondent contested the petition denying the negligence on the part of the driver of the KSRTC bus and also denied its liability to pay the compensation. The respondent further contended that the deceased himself was riding the motorcycle in rash and negligent manner without wearing

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helmet and a valid licence to ride, the accident and death occurred solely due to his negligence. It was contended that respondent - KSRTC is not liable to pay the compensation. It was contended that irrespective of the negligence on the part of the deceased, without prejudice to its contentions the respondent has paid `50,000/- to the claimants and sought dismissal of the petition.

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Before the Tribunal, claimant No.1 was examined as PW.1, eye witness was examined as PW2 and Exs.P1 to P9 were marked. On behalf of respondent, the driver of the bus was examined as RW.1 and Exs.R1 to R3 were marked.

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The Tribunal on hearing the parties, by the impugned judgment and award, held that the accident and death of Khathib Khan occurred solely due to the actionable negligence on the part of the driver of the bus. The Tribunal considered age of the deceased as 20 years, his income notionally at 10,000/- per month, added 40% to the same by way of future prospects, deducted 50% out of the same for his personal expenses, applied 18 multiplier and awarded compensation of 15,12,000/- on the head of loss of dependency.

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The Tribunal, in all, awarded compensation of

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`16,12,000/- under different heads as follows:

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Heads of compensation	Amount
1. Loss dependency	`15,12,000.00
2. Funeral expenses	`15,000.00
3. Loss of Estate	`15,000,00
4. Loss of love and affection	`30,000.00
5. Filial Consortium	`40,000.00
Total	`16,12,000.00

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The Tribunal awarded interest at 9% on the compensation payable by the respondent from the date of petition till its realization.

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Challenging the findings of negligence and quantum of compensation, KSRTC has preferred MFA No.2062/2020, and questioning the adequacy of compensation, claimants have preferred MFA No.3908/2020.

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Submissions of Smt. Sonu S., learned counsel appearing on behalf of Sri S.Rajashekar for KSRTC:

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Admittedly the charge sheet was filed against the deceased for riding the vehicle without licence and insurance, and he was not wearing helmet also. PW.2 though claimed to be the eye witness did not file the complaint. PW.1 was not the eye witness. To rebut the evidence of claimants, the driver of the bus was examined as RW.1. The Tribunal without proper appreciation of evidence has committed error in fastening the

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entire liability to KSRTC. There was no proof of income of the deceased. The compensation awarded on all heads are on higher side.

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Submissions of Sri Vijay Kumar T., learned counsel for the claimants:

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Charge sheet was filed against the driver of the KSRTC/RW1. He did not file any complaint alleging that the rider of the motorcycle was rash and negligent. That driving without licence or not wearing helmet themselves are not sufficient reasons to arrive at conclusion that the deceased was negligent. Therefore, the finding of the Tribunal in that regard needs to be maintained. Ex.P9 - the bill book shows that deceased was running Mobile Shop. Therefore, the notional income considered by the Tribunal is on the lower side and compensation awarded on the other heads is also on lower side. Hence, appeal of KSRTC be dismissed and compensation be enhanced.

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On consideration of submission of both parties and on examining the material on record, the points that arise for determination of this Court are;

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i) Whether the finding of the Tribunal that the accident in question took place solely due to the

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actionable negligence on the part of RW1 in driving bus bearing No. KA-18-F-459 is sustainable?

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ii) Whether the compensation awarded by the Tribunal is just one?

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ANALYSIS

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Reg: Point No.1:

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There is no dispute that on 06.07.2018 at about 6.00 p.m., the accident took place near Kallalli Forest on Halebeedu – Belur Road involving motorcycle bearing No.KA - 46-A-3740 and bus bearing No. KA-18-F-459 and in that accident, motorcycle rider Sri Khathib Khan died. The relationship of the claimants with the deceased was also not disputed.

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The initial burden of proving the fact that accident occurred due to rash and negligent driving on the part of RW.1 - the driver of the bus, was on the claimants. To discharge that burden, the claimants examined PWs.1 and 2 and relied on Exs.P1 to P7 i.e., the FIR, complaint, Spot Mahazar, Postmortem report, IMV report, Inquest Mahazar and charge sheet respectively. Admittedly, PW.1 was not the eye witness.

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PW.2 though was examined as eye witness and claimed that he witnessed the incident from close distance, he did not choose to file the complaint. Ex.P1 - the FIR indicates that one Yusuf Khan filed the complaint. He claimed that he saw the accident from a close distance. In the complaint, the name of PW.2 does not find figure, though PW.2 claims that he shifted the victim to the hospital. In the complaint, it is not stated that PW.2 joined the complainant to shift the injured to the hospital.

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Ex.P7 - the charge sheet shows that the deceased was also charge sheeted for the offences under Sections 181 read with 3 , 146, 196 of Indian Motor Vehicles Act 1988 i.e., for riding the motorcycle without insurance and without driving licence. To rebut the evidence of the claimant, the respondent examined the driver of the bus as RW.1. RW.1. claimed that deceased himself came in rash and negligent manner, without wearing helmet and in attempt to overtake another vehicle, he hit the bus. None of the parties have produced the sketch of scene of accident. The one which is engrafted on Ex.P3 - the spot Mahazar does not depict any clear picture.

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If the accident was really due to the negligence of the deceased alone, in the ordinary course, RW.1 should have

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filed the complaint immediately. Still the fact remains that the

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deceased rode the vehicle without licence and insurance. The evidence of PW.2 also does not lend 100% assurance regarding sole negligence on the driver of the bus. Considering the material on record, it can be concluded that both the deceased and RW.1 have contributed equally to the occurrence of the accident. The Tribunal’s finding has to be modified to that extent regarding negligence.

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Reg: Point No.2:

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In the passport - Ex.P8 date of birth of the

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deceased is mentioned as 22.09.1998. The accident occurred on 06.07.2018. Therefore, as on the date of the accident, deceased had completed 19 years of age. Though Ex.P9 - bill book was produced to claim that the deceased was running Mobile Shop and earning 20,000/- per month, Ex.P9 shows that the bill book pertains to one Sagar Mobile Center. Nothing was produced to show that the said Sagar Mobile Center was owned by the deceased and the turnover of the said shop was 20,000/- per month. Therefore, income of the deceased has to be notionally assessed. The Tribunal has considered his income as `10,000/- per month. Considering his age, cost of

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living and prevailing wage rates of the year 2018, the notional income assessed by the Tribunal at 10,000/- is on the lower side. Reasonably the same can be taken at 12,500/-.

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As per the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay

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Sethi & Ors.¹ and considering the age of the deceased, 40% of income of the deceased has to be added to his income by way of future prospects. As the deceased was unmarried, 50% has to be deducted for his personal expenses and applicable multiplier is 18. Therefore, the compensation on the head of loss of dependency would be 12,500/- + 5,000/- (40%) = 17,500/- /50% = 8,750/- x 12 x 18 = `18,90,000/-.

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As per the judgments of the Hon’ble Supreme Court in the case of Pranay Sethi referred to supra and Magma

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General Insurance Company Ltd. V. Nanu Ram² , claimant Nos.1 and 2 are entitled to compensation of `40,000/- each on

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the head of loss of consortium with escalation at 10% and `15,000/- + 15,000/- on the heads of loss of estate and funeral

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1 AIR 2017 SC 5157

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2 (2018) 18 SCC 130

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expenses with escalation at 10%. Therefore, the just

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compensation payable is as follows:

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Sl. No.	Heads	Amount awarded by this Court (`)
1.	Loss of dependency	18,90,000/-
2.	Loss of consortium	88,000/-
3.	Loss of estate	16,500/-
4.	Funeral expenses	16,500/-
	Total	20,11,000/-
	Less: - 50% for his contributory negligence	10,05,500/-
	Total	10,05,500/-

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Hence, the claimants are entitled to compensation of `10,05,500/-. For awarding interest @ 9%, the Tribunal has not assigned any specific reasons. It is also material to note

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that the respondent-KSRTC had paid 50,000/- by way of ex gratia payment to show its bonafides. The Tribunal was not justified in awarding interest at 9% p.a. That has to be reduced to 6% p.a. From the above compensation **<u>,</u>** 50,000/- paid by KSRTC has to be deducted. Therefore, the compensation payable is 9,55,500/-(10,05,500/- - `50,000/-) with interest @ 6% per annum. Hence, the following:

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ORDER

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i. Both the appeals are allowed in part.

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ii. The impugned award in MVC No.1558/2018 on the

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file of V Additional District and Sessions Judge, Hassan is modified.

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a) The claimants are entitled to compensation of `9,55,500/- with interest thereon at 6% per annum from the date of petition till its realization.

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b) The respondent-KSRTC shall deposit before the Tribunal the aforesaid amount on adjusting the amount already deposited, in these proceedings if any within four weeks from the date of receipt of a copy of this order.

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c) Out of the aforesaid compensation, claimant No.1 is entitled to 80% of the award amount and claimant Nos.2 and 3 are entitled to 10% each. Out of the compensation awarded to claimant No.1, 50% shall be released digitally on furnishing the required document and 50% shall be invested in Fixed Deposit in her name in any Nationalized Bank/Scheduled Bank of her choice for a period of two years. d) The shares of claimant Nos.2 and 3 shall be digitally released to them on furnishing required documents.

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