Divya Vs the Divisional Controller

THIS MFA FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE & MACT AT MANDYA IN MVC NO.1502/2017 ON 24.01.2019, THEREBY ENHANCING THE COMPENSATION SUITABLY WITH INTEREST AND FIXING ENTIRE LIABILITY ON THE RESPONDENT, GRANT SUCH OTHER RELIEFS IN FAVOUR OF THE APPELLANT IN THE CIRCUMSTANCE OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE T.M.NADAF

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ORAL JUDGMENT

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This appeal is filed by the appellants-claimants seeking enhancement of the compensation awarded by the Tribunal dated 24.01.2019, passed in MVC.No.1502/2019, on the file of the Principal Senior Civil Judge And MACT, Mandya (hereinafter referred to as ‘the Tribunal’ for brevity), whereby the Tribunal had awarded a sum of Rs.8,41,400/- along with interest at 6% per annum, due to death of one Muruga, holding that the deceased had contributed 50% negligence for the accident.

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The parties shall be referred as per their rankings before the Tribunal for easy reference.

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The appellants/claimants filed a claim petition

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seeking compensation in respect of death of husband of the appellant, one Muruga in a road traffic accident on 31.03.2017. The date of accident, involvement of the vehicle, death occasioned and the liability are not in dispute. The only dispute is with regard to 50% of contributory negligence saddled by the Tribunal on the deceased and the quantum of compensation awarded by the Tribunal in the impugned judgment.

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A brief outline of facts of the case are as under:

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As per the case of the claimants, on 31.03.2017 when the deceased Muruga was crossing the BangaloreMysuru Road near East Police Station on Mandya at about 9.45 p.m., the driver of the KSRTC bus bearing No.KA21/F-0045 drove the same in a rash and negligent manner and knocked down Muruga. Due to which the deceased suffered grievous injuries and succumbed to the injuries thereafter. The claimants claimed that the deceased was aged about 22 years and was earning a monthly income of

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Rs.30,000/- by doing Mason work. Due to the death of Muruga, the claimants lost their earning member of the family. Accordingly, filed a claim petition under Section166 of the MV Act seeking a compensation of Rs.95,85,000/-.

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Upon notice, the KSRTC appeared through its counsel and filed written statement. Disputed the occupation of the deceased and taken a specific contention that the deceased was a pillion rider in the scooter and the deceased immediately after getting down from the scooter, suddenly tried to cross the road and came in contact with the bus, which resulted in suffering injuries. It was only due to the sudden appearance of the deceased on the road without noticing the bus as the driver was not expecting that the person suddenly appearing in between

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the road the accident occurred and therefore, the deceased is exclusively responsible for the accident.

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The Tribunal after completion of the hearing,

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framed the following issues :

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“Whether the petitioner proves that on 31.03.2017 when the deceased Muruga was crossing the Bangalore Mysore road near East police station on Mandya at 9.45 p.m. the driver of KSRTC bus bearing Reg. No. KA-21/F-0025 drove the same in a rash and negligent manner from Bangalore towards Mysore and dashed against said Muruga as such he suffered injuries and succumbed to the same later?

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2) Whether the petitioners are entitled for a relief of compensation as sought? if so to what extent and who is liable to pay the same?

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3) What order or award?”

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Learned counsel for the appellants/claimants

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submits that the Tribunal has fixed 50% contributory negligence on the part of deceased. The finding of the Tribunal regarding contributory negligence requires modification. The accident had happened due to the rash and negligent driving of the bus driver and hence the fixing of contributory negligence by the Tribunal is on the higher side.

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The claimants / appellants to prove their case examined, PW-1 who is the wife of the deceased, PW-2 an

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eye witness and produced 13 documents and marked the same as Exhibits – P1 to P13. The driver of the respondent – corporation examined as RW-1 and produced two documents as Exhibit-R1 and R12. The Tribunal upon consideration of the material placed on record both oral and documentary and after hearing the learned counsel for the parties before it, answered issue No.1 holding that the deceased contributed 50% negligence in causing the accident. The reasons by the Tribunal stated at paragraph No.12 of the judgment, which reads as follows:

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12. On further perusal of the Ex.P3-spot mahazer, the sketch annexed to it shows the spot of accident in between two lane towards Mysore on Bangalore Mysore High way separated by center median. On further perusal of the MV report available in Ex.P4 it is to the front left side body and head light as well bumper damaged. So & on comparison between the spot sketch found in Ex.P3 and the said portion of damage caused to the bus it clearly appears while bus moving towards Mysore in the right lane of two

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lane high way to the left side of the said bus the deceased said to have hit. So, it is clear the bus was in its lane and it appears the deceased after alighting from the scooter must have immediately rushed to cross the road and under such circumstances must have dashed IMS TRIBUNAL against the bus in the middle of the road and in the left side of the right lane on Bangalore -Mysore road in which bus was moving. There are two probabilities emerge in the above circumstances. Firstly, if deceased were to little cautious while crossing the road that too in a place where there was no provision for pedestrian cross the accident as well the impact of the accident could have been avoided. Secondly, if the driver of the bus were to move in a moderate speed a head of U turn in a city limits the very impact of the accident could have avoided. The fact that hit against deceased by the bus became fatal evidences the situation that the driver of the bus must be moving the bus in the city limit more than required speed. Therefore, when the topography of the spot of the accident as seen in the sketch is compared with nature of damage caused to the bus it is but natural to infer and to hold that the deceased more or less like a Jay walker attempted to cross the road and same time the driver of the bus in the city limits must have drove the same more than a moderate speed, thus it is not only the deceased, rather the

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driver of the bus also contributed for the accident taken place. It is not doubt the police have filed charge sheet against the driver of the bus, but having regard to the Independent inquiry to be conducted before the tribunal to find out the actionable negligence and extent of it and when preponderance of probability is employed as standard of proof there is a reason for the tribunal to appreciate the defence of the respondent though taken without prejudice to the denial of sole negligence by the driver of the bus, that there was contributory negligence committed both by the deceased and driver of the bus, as such lead to fatal Injuries suffered by the deceased. In the circumstances, it is both the deceased and driver of the bus equally contributed for the accident; thereby the extent of contributor negligence must be attributed 50% each. Accordingly the issue has to be concluded holding that the accident is not due to sole actionable negligence of the driver of the bus, but due to contributory negligence committed by both the deceased and driver of the bus. Hence the issue is answered accordingly.”

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The Tribunal has taken the income of the deceased at Rs.8,000/- per month and added about 40% towards future prospects and deducted 1/3^rd and awarded

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Rs.16,12,800/- towards loss of dependency and a sum of Rs.40,000/- towards loss of consortium, Rs.15,000/- each towards ‘loss of estate’ and ‘funeral expenses’. In all, the Tribunal has awarded a sum of Rs.16,82,800/- along with 6% interest per annum from the date of petition till realization. The Tribunal in view of answer to issue No.1 held that the respondent - Corporation is liable to pay only 50% of the award amount as 50% negligence was contributed by the deceased. It is this judgment and order passed by the Tribunal is called in question in the present appeal seeking to set-aside the finding of the Tribunal on the contributory negligence so also for the enhancement of the compensation.

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Heard Sri.Srinivasan.M.Y, learned counsel for

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the appellants and Sri.K.Nagaraj learned counsel for the respondent – corporation and perused the records.

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The submission of Sri.Srinivasan M.Y.: learned counsel for the appellants submit that the Tribunal has

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committed an error while holding that the deceased has contributed 50% negligence. The Tribunal has failed take into consideration the spot sketch and the evidence of PW2 who was an eye-witness to the incident. The Tribunal has presumed that the deceased more or less walked like the jay walker and has attempted to cross the road and in that context, the accident has taken place and has contributed to the accident. The charge-sheet is filed against the driver of the offending bus. He has taken this Court to the evidence of PW-2, wherein PW-2 has stated

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that the driver of KSRTC bus was driving the same in rash negligent manner, endangering human life in a zigzag manner without following the road traffic rules and thereby knocked down the deceased causing grievous injuries and ultimately resulting in death. He has taken this Court through the cross-examination of the said witnesses wherein nothing worthwhile is elicited by the Corporation.

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Sri.Srinivasan relied on the evidence of the driver of the bus who has in his cross-examination has

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admitted that he has not questioned the charge-sheet filed against him. Further, he has admitted that he has not produced the alleged statement given by him to the Police against the deceased. The learned counsel has also stated that the compensation awarded by the Tribunal is inadequate. The date of accident was 31.03.2017 even as per the income fixed by the KSLSA for the year 2017 the notional monthly income is Rs.11,000/- per month for unskilled labour. He has further submitted that the Tribunal has committed serious error in taking the income

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of the deceased at Rs.8,000/- p.m., as monthly income whereby awarded meager sum under the head of loss of dependency. He has also submitted that the Tribunal failed to award compensation under the head loss of consortium in terms of the judgment of the Hon’ble Apex Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED V. NANU RAM & OTHERS¹ . The learned counsel for the appellants submit that the finding of the Tribunal towards the contributory negligence may be set-aside or

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1 2018 ACJ 2782

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alternatively may be brought down to a negligible percentage and a just and proper compensation may be awarded in terms of principles of the just compensation.

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Refuting to the submissions of the learned counsel for the appellants, Sri.Nagaraja vehemently contended that the Tribunal has properly appreciated the material on record. Especially, the spot sketch and the evidence of the driver of the offending vehicle and the came to the proper conclusion that the deceased has contributed 50% to the accident and also submitted that the compensation awarded by the Tribunal taking the income at Rs.8,000/- p.m., in the absence of any proof of income, is just and proper in the facts and circumstances of the case, the judgment and award of the Tribunal does not call for any interference at the hands of this Court.

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Having heard the learned counsel for the parties, the point that arises for consideration of this Court are as under:

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i) Whether the Tribunal is right in answering issue No.1 partly in affirmative whereby saddling 50% of the contributory negligence on the deceased?

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ii) Whether the award passed by the Tribunal befit in the principle of the just compensation?

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My answer to the above points for consideration, point No.(i) in ‘negative’ point No.(ii) Partly in affirmative, for the following reasons:

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As per the spot sketch mahazar at exhibit-P3 the accident had occurred in the city limits in front of a Police Station at a spot wherein space provided between the median for U turn. The Motor Vehicle Inspector Report suggest that the front bumper of the bus is bent left side and head light of left side is broker this clearly shows that the speed of the vehicle and the rash and negligence on the part of the driver of the bus. The spot of the accident is in the heart of the city, wherein the vehicles are expected to be driven within speed limits of the city. That apart, the spot of the accident is front of East Police

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Station, Bengaluru-Mysuru Highway. This shows that the driver of the bus has sans respect to the traffic rules. If the driver of the bus was within the speed limits of the city, he could have avoided the unfortunate accident, which has resulted in the death of a young man aged 22 years. Though the Tribunal has come to a conclusion that the driver of the offending vehicle is responsible for the accident and also observed that he was not within the speed limit within city limits, however committed serious error in saddling 50% negligence contributed by the deceased to the accident. Having regard to the spot sketch and the report of the Motor Vehicle Inspector, it is manifestly clear that the driver of the offending bus is solely responsible for the accident.*

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As rightly contended by Sri.Srinivasan, the Tribunal has committed an error in taking the income at Rs.8,000/- per month. As per the notional income fixed by

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the KSLSA the income for the year 2017 is Rs.11,000/- per month. In view of the judgment of the Hon’ble Apex Court

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in case of NATIONAL INSURANCE CO. LTD. VS

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PRANAY SETHI² , the deceased was 22 years at the time of death, and hence 40% of the income is to be added towards ‘loss of future prospects’ and on deducting 1/3^rd towards personal expenses. On redetermination of the loss of dependency, the same works out as follows:

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Rs.11,000 + 40% = 15,400 x 12 x 18 – 1/3^rd = Rs.22,17,672/-

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The dependants are entitled for a sum of

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Rs.40,000/- each along with 10% + 10% escalation in terms of law declared by the Hon’ble Apex Court in the case of RASMITA BISWAL & OTHERS VS. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER³ . Therefore, the appellants/claimants are entitled for a sum of

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Rs.1,44,000/- (Rs.1,20,000 x 3 + 10% + 10%).

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2 2017 (16) SCC 680

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3 (2022) 2 SC 767

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At this stage learned counsel for the respondent - corporation submitted that the Corporation has already deposited 50% of the amount i.e., Rs.8,41,400/- along with interest. In that view of that matter the payment of escalation on the conventional heads awarded by the Tribunal does not call for consideration before this Court. The learned counsel appearing for the appellant does not dispute the submissions made by the learned counsel for the respondent. However, he has fairly submitted that the escalation of 20% of 3 + 3 years could be awarded on Rs.80,000/- towards ‘filial consortium to the appellants.

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Hence, a compensation of Rs.15,000/- each is awarded under the head ‘Loss Of Estate’ And ‘Funeral And Transportation’ each. Therefore, Rs.30,000/- (Rs.15,000 x 2) towards ‘Loss Of Estate’ And ‘Funeral And Transportation’.

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In summary, the total compensation redetermined by this Court under various heads is as follows:

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Loss Dependency	: Rs.	22,17,672/-
(Rs.11,000 + 40% x 12 X 18 X 1/3)
Loss of Filial Consortium	: Rs.	1,44,000/-
(Rs.40,000 x 3 + 10% + 10%)
Loss of Estate & Funeral Expenses	: Rs.	30,000/-
(Rs.15,000 x 2)
TOTAL	: Rs.	23,91,672/-

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The total compensation re-determined by this Court works out to Rs.23,91,672/as against Rs.16,82,800/- awarded by the Tribunal. The appellants – claimants are entitled for an additional compensation of Rs.7,08,872/- (Rs.23,91,672 – Rs.16,82,800) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. Respondent – Corporation is directed to deposit the enhanced compensation within Six Weeks from the date of receipt of the certified copy of this judgment.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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i) The appeal is Allowed-In-Part ; ii) The judgment and award dated 24.01.2019, passed in MVC.No.1502/2019, on the file of the Principal Senior Civil Judge And MACT, Mandya is modified.

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iii) The finding of the Tribunal towards saddling 50% contributory negligence on the deceased is set-aside.

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iv) The appellants – claimants are entitled for an additional compensation of Rs.7,08,872/(Rs.23,91,672 – Rs.16,82,800) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. v) Respondent – Corporation shall deposit the enhanced compensation as well as balance compensation along with accrued interest at 6% p.a. within Six Weeks from the date of receipt of the certified copy of this judgment

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vi) No order as to cost.

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Sd/(T.M.NADAF) JUDGE

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JJ/MH List No.: 1 Sl No.: 13

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*16.04.2025.

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ORDER

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The matter was listed for being spoken to. This Court on 04.04.2025 after hearing the learned counsel for both the parties, under a mis-impression of the spot sketch given the parties that the accident had taken place in Bangalore–Mysuru Highway reduced the contributory negligence from 50% to 25% i.e., 75% on the offending bus and 25% on the deceased. However, before subscribing the signature to the judgment, while going through the record, spot sketch mahazar at Exhibit-P3, found that the accident occurred in the city limits in front of a Police Station near the space between the median for ‘U’ turn. This Court requested the Registry to list the matter for ‘being spoken to’ and accordingly the matter was listed on 16.04.2025. Upon hearing both sides on the spot sketch, the learned counsel for the Corporation has not disputed that though the accident has taken place on the Bangalore – Mysuru Highway, but the spot was within the city limits as stated and shown under the spot sketch.

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In view of the same, this Court with the consent of both the learned counsel for the parties after reappreciating the material saddled the entire negligence on the driver of the bus. This order is necessitated, in order to arrive at a just compensation, which the Court is duty bound to award

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keeping the object of the beneficial legislation.

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Sd/(T.M.NADAF) JUDGE

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JJ/MH List No.: 1 Sl No.: 13

Divya v. the Divisional Controller

Case brief

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Divya v. the Divisional Controller

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