The Divisional Controller Vs Smt Bharathi

THE DIVISIONAL CONTROLLER KARNATAKA STATE ROAD TRANSPORT CORPORATION, BENGALURU CENTRAL OFFICE, SARIGE BHAVANA, K.H.ROAD, SHANTHINAGAR, BENGALURU-560 027 REP BY ITS CHIEF LAW OFFICER.

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(BY SRI. N KUMAR, ADVOCATE)

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AND:

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…APPELLANT

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SMT BHARATHI

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W/O GANAPATHI @ GANAPATHI KULKARNI AGED ABOUT 51 YEARS

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GANAPATHI @ GANAPATHI KULKARNI S/O LATE GUNDERAO @ GUNDERAO KULKARNI AGED ABOUT 54 YEARS

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BOTH ARE R/AT NO.80, 1^ST TYPE, BEML QUARTERS, NEAR POST OFFICE ROAD,

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NC: 2025:KHC:4856-DB MFA No. 4776/2019 C/W MFA.CROB No. 36/2021

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BEML NAGAR, K.G.F. KOLAR DISTRICT-563 115

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…RESPONDENTS

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(BY MS SUSHMITA G, ADVOCATE FOR SRI N GOPAL KRISHNA, ADVOCATE FOR R1 & R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16/01/2019, PASSED IN MVC NO.216/2018, ON THE FILE OF THE III ADDITIONAL DISTRICT & SESSIONS JUDGE, & MEMBER, MACT, KOLAR, (SITTING AT KGF), AWARDING COMPENSATION OF RS.22,90,000/- WITH INTEREST AT 6% P.A., FROM 18.09.2018 ON WHICH DATE PETITION CAME TO BE FILED AND ETC.

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IN MFA.CROB NO. 36/2021

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BETWEEN:

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SMT BHARATHI G W/O GANAPATHI @ GANAPATHI KULKARNI AGED ABOUT 53 YEARS

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SRI GANAPATHI @ GANAPATHI KULKARNI S/O LATE GUNDERAO @ GUNDERAO KULKARNI AGED ABOUT 56 YEARS BOTH ARE R/A NO.80, 1ST TYPE BEML QUARTERS NEAR POST OFFICE ROAD BEML NAGAR, K G F, KOLAR DISTRICT-563115

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...CROSS OBJECTORS

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(BY MS. SUSHMITA G, ADVOCATE FOR SRI. GOPAL KRISHNA N, ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER KARNATAKA STATE ROAD TRANSPORT CORPORATION KOLAR DIVISION, KOLAR-563101

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...RESPONDENT

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(BY SRI. N KUMAR, ADVOCATE)

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THIS MFA.CROB IN MFA NO. 4776/2019 IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF

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NC: 2025:KHC:4856-DB MFA No. 4776/2019 C/W MFA.CROB No. 36/2021

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MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED 16.01.2019 PASSED IN MVC NO. 216/2018 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT K.G.F.) AND MEMBER, M.A.C.T., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL AND CROSS OBJECTION, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and 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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Challenging the award in MVC No.216/2018 on the file of

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III Additional District and Sessions Judge, Kolar (sitting at KGF) and Member MACT, (for short the ‘Tribunal’), KSRTC has preferred MFA No.4776/2019. The claimants filed Cross Objection No.36/2021 seeking enhancement of compensation. Respondent Nos.1 and 2 were claimants and appellant was the sole respondent in MVC No.216/2018 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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Claimant Nos.1 and 2 are the parents of deceased Sujan K. On 24.5.2018 at about 9.45 a.m., when Sujan was riding motor cycle bearing No.KA-08-R-3277 on Kolar,

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M.B.Road, KSRTC bus bearing No.KA-07-F-1398 hit the said motor cycle. Due to the injuries suffered in the accident, Sujan died on the spot. Claimants filed MVC No.216/2018 against the respondent contending that the accident and consequential death of Sujan occurred solely due to the negligence on the part of the driver of the bus. They further contended that the deceased was studying final year BE course in CBIT College, Kolar and he had potential to earn 50,000/- p.m., after completion of his education. Due to his untimely death, the claimants have lost support of their son and have suffered financially and emotionally. They claimed compensation of 45,00,000/- from the respondent.

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Respondent contested the petition denying negligence on the part of the driver of the bus. It was contended that the deceased himself rode the motor cycle in a rash and negligent manner, at high speed, lost control over his vehicle while crossing the road hump, fell down and suffered injuries and the bus was falsely planted in the case in collusion with the police and other officers. Further, respondent denied the age, occupation and income of the deceased and sought dismissal of the petition.

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In support of their claim, claimants got examined claimant No.2 as PW.1, one Narayana Murthy was examined as PW.2 and Exs.P1 to P22 were marked. On behalf of the respondent, conductor and driver of the bus were examined as RWs.1 and 2 respectively and Exs.R1 to R3 were marked.

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On hearing the parties, by the impugned award the Tribunal held that the accident occurred due to the actionable negligence of the part of RW.2/driver of the bus. The Tribunal, notionally assessed the income of the deceased at 20,000/p.m., deducted 50% from the same for his personal expenses, applied 18 multiplier and awarded compensation of 21,60,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of `22,90,000/- with interest at

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6% p.a., on different heads as follows:

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Sl. No	Particulars	Amount in (`)
1	Towards loss of dependency `20,000 p.m. – 10,000=10,000x12x18	21,60,000/-
2	Towardsloss ofestate	15,000/-
3	Towards funeral expenses	15,000/-
4	Towards love and affection	50,000/-
5	Towards filial consortium	50,000/-
	Total	22,90,000/-

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NC: 2025:KHC:4856-DB MFA No. 4776/2019 C/W MFA.CROB No. 36/2021

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KSRTC has challenged the said award in MFA No.4776/2019 questioning the findings regarding negligence and quantum as well. Claimants have preferred Cross Objection No.36/2021 in MFA No.4776/2019 questioning the quantum.

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Before this Court, KSRTC filed IA.No.2/2019 under Order 41 Rule 27 of CPC seeking permission to produce three photographs by way of additional evidence. Learned counsel for the claimants conceded for taking those documents on record admitting that they are photographs of the deceased.

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Sri N.Kumar, learned counsel for KSRTC/appellant submits that the evidence on record shows that scene of accident was thickly populated area and therefore, the bus could not have been driven at high speed in the said place. He submits that the evidence on record shows that the victim himself tried to overtake another vehicle and hit the KSRTC bus which was evident from the evidence of RWs.1 and 2, both eye witnesses. Even RW.2 filed complaint as per Ex.R3. However, police did not conduct investigation on the said complaint. Apparently, the deceased was not wearing helmet and he died

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due to head injury. Therefore, the Tribunal committed error in attributing negligence to the bus driver in occurrence of the accident. He submits that there was no proof to show that the victim was capable of earning `20,000/- p.m., and the compensation awarded on the other heads is also on the higher side.

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Ms Sushmita, learned counsel appearing on behalf of Sri N.Gopal Krishna, learned counsel for the claimants submits that, regarding the accident, on conducting thorough investigation on the complaint of PW.1, the police have filed charge sheet against the driver of the bus alone. RWs.1 and 2 were interested witnesses. Though RW.2 filed a complaint, he did not pursue the same. Therefore, the Tribunal was justified in relying on the evidence of PW.2/eye-witness and police records in holding that the accident occurred due to the negligence of the driver of the bus. She submits that the victim not wearing helmet did not, in any way, contribute to the accident. Therefore, that will not absolve the liability of the respondent to pay the compensation. She submits that the Tribunal ought to have awarded future prospects and notional income of the victim considered by the Tribunal is on the lower

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side. In support of her submissions, she relies on the following judgments:

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i. Kandasami & Ors., v. Lindabriyal & Anr.,¹ ;

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ii. The Reliance General Insurance Co.Ltd., v. Smt.Shobha & Ors.,²

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On hearing both side and on examination of the material on record, the points that arise for determination of the Court are:

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i. Whether the finding of the Tribunal that the accident and death of Sujan occurred solely due to the actionable negligence on the part of RW.2/driver of the bus bearing No.KA.07/F.1398 is sustainable?

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ii. Whether IA.No.2/2019 deserves to be allowed?

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iii. Whether the compensation awarded by the Tribunal is just one?

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1 Order dated 24.4.2023 passed in Civil appeal No.3125/2023

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2 Judgment dated 31.5.2022 passed in MFA No.2179/2018 c/w MFA No.2325/2018

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Analysis

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Reg. Point Nos.(i) & (ii):

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The claimants contended that when Sujan was riding his motor cycle, RW.2 drove the KSRTC bus bearing No.KA-07/F-1398 in rash and negligent manner and hit the motor cycle of the deceased leading to his death. The burden of proving the said fact was on the claimants. To prove the same, claimants relied upon the evidence of PW.2/eye-witness, PW.1/claimant No.2 and Exs.P1 to P6, i.e., FIR, spot mahazar, Motor Vehicles Inspectors Report, Inquest mahazar, Postmortem Report and charge sheet respectively. Respondent/KSRTC also did not dispute the fact that when Sujan was riding the motor cycle, there was an accident and he died. But according to them, Sujan himself was rash and negligent and as he rode the vehicle without wearing helmet, he suffered head injury, which caused his death.

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Exs.P1 to P6 show that regarding the incident, PW.1 filed a complaint before Kolar Traffic Police. Based on that, FIR/Ex.P1 was registered. On investigation, charge sheet/Ex.P6 was filed against RW.2/driver of the bus. In the charge

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sheet/Ex.P6, PW.2 was shown as eye-witness. Therefore, there was no reason to disbelieve his presence at the scene of accident. In the cross-examination of PW.2, nothing worth was elicited to discredit his evidence. By such evidence, the claimants discharged their burden of proving the occurrence of the accident due to the actionable negligence on the part of RW.2.

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RW.2 contended that he also filed complaint as per Ex.R3 alleging that Sujan himself rode the motor cycle in rash and negligent manner without wearing helmet and tried to overtake the bus without noticing the humps. He further alleged that Sujan applied break suddenly, lost control of the vehicle, fell down and died due to head injury. Said complaint and FIR/Ex.R3 were not taken to any logical conclusion by RW.2 or respondent. The respondent has not placed any material to show that Ex.R3 was further pursued. The respondent did not even examine the investigating officer. RW.2 being the accused in the case and RW.1 being his colleague/conductor, are interested witnesses and their evidence has to be cautiously evaluated. RW.2 in his crossexamination admits that he did not complain to his higher

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officers that police have filed a false charge sheet against him without conducting proper investigation. He did not challenge the charge sheet filed against him. He admitted presence of the bus at the scene of the accident. He admitted that police took him with the bus to the police station. Considering the same, the Tribunal was justified in relying on the claimants evidence rather than the evidence of RWs.1 and 2 in holding that the accident occurred due to the actionable negligence on the part of RW.2.

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So far as the victim not wearing helmet, this Court in The Reliance General Insurance Co.Ltd.,s case , referred to supra, has held that the victim not wearing helmet itself cannot be said to be the cause of the accident. It was held that in the absence of any evidence that victim’s lapse in wearing helmet contributed to the occurrence of the accident, such contention cannot be accepted. In this case also, there is no material to show that victim allegedly not wearing helmet was the cause of the accident. As against that, cause of the accident was rash and negligent driving of the bus by RW.2. Therefore, no contributory negligence could be attributed to the deceased in the occurrence of the accident.

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Since the claimants’ counsel conceded the photographs produced by way of additional evidence, IA.No.2/2019 is allowed. Even though photographs are taken on record, the above discussion shows that the victim not wearing helmet was not the cause of the accident. Hence, that will not serve any purpose to the appellant/KSRTC.

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Reg. Point No.(iii):

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As per Ex.P7/driving licence, date of birth of the victim was 26.12.1996. Therefore, as on the date of the accident, he had completed 21 years and the applicable multiplier is 18.

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The evidence of PW.1 and Exs.P11 to P20 show that deceased was studying in C Byregowda Institute of Technology, Kolar in VIII semester in BE Computer Science and Engineering. In the similar case of engineering student, the Hon'ble Supreme Court in the case of Kandasami, referred to supra, for the accident of the year 2008 had notionally assessed the income of the deceased at 25,000/- p.m. Therefore, in this case also the income of the deceased has to be considered at 25,000/- p.m.

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Having regard to the age of the deceased and the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi³ ,

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40% has to be superadded to the income of the deceased by way of future prospects. Since the deceased was unmarried, 50% of his income has to be deducted towards personal expenses in view of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) And Others vs. Delhi Transport Corporation And Another⁴ . Therefore, the annual income of the deceased would be 4,20,000/[25,000/- x 10,000/- (40%) = 35,000/-x12]. As per the Finance Act, 2018, 8,500/- has to be deducted from his income by way of income-tax. Therefore, his annual income would be 4,11,500/- (4,20,000/- - 8,500/-). Thus, the compensation payable on the head of loss of dependency is 37,03,500/- [4,11,500/- x 18 / 50%].

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As held by the Hon’ble Supreme Court in Pranay Sethi’s case, referred to supra, and Magma General Insurance Co., Ltd., v. Nanu Ram⁵ the claimants are entitled

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3 AIR 2017 SC 5157

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4 (2009) 6 SCC 121.

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5 (2018) 18 SCC 130

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to compensation of 40,000/- each on the head of loss of consortium with escalation at 10%. Similarly, they are entitled to compensation of 15,000/- on the head of loss of estate and `15,000/- on the head of funeral expenses and transportation of dead body with escalation at 10%. Therefore, the just

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compensation payable is as follows:

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Sl. No	Particulars		Amount in (`)
1	Towards dependenc	loss of y	37,03,500/-
2	Towards estate	loss of	16,500/-
3	Towards expenses	funeral	16,500/-
4	Towards consortium	loss of	88,000/-
		Total	38,24,500/-
	Less a th	warded by e Tribunal	22,90,000/-
	Enh	ancement	15,34,500/-

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The enhanced compensation shall carry interest at 6%

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p.a., payable by respondent/KSRTC.

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For the aforesaid reasons, the appeal of KSRTC is liable to be dismissed and the Cross objection of the claimants deserves to be allowed in part.

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Hence, the following:

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NC: 2025:KHC:4856-DB MFA No. 4776/2019 C/W MFA.CROB No. 36/2021

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ORDER

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i. MFA No.4776/2019 is dismissed;

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ii. MFA Crob No.36/2021 is allowed in part;

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iii. The claimants are entitled to enhanced compensation of `15,34,500/- with interest at 6% p.a., from the date of petition till date of realization;

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iv. Respondent – KSRTC shall deposit the enhanced compensation before the Tribunal on adjusting the amount already deposited, if any, before the Tribunal within four weeks from the date of receipt of copy of this order;

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v. On such deposit, the Tribunal shall digitally release the enhanced compensation to claimant Nos.1 and 2 in the ratio of 80:20 on furnishing the required documents;

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vi. The amount in deposit, if any, and TCRs shall be transmitted to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 42

The Divisional Controller v. Smt Bharathi

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The Divisional Controller v. Smt Bharathi

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