The Managing Director Vs Govindappa

THE MANAGING DIRECTOR KSRTC, DOUBLE ROAD SHANTHINAGAR BANGALORE KSRTC BUS NO.KA-36-F-1165 NOW BY THE MANAGING DIRECTOR NORTH EASTERN KARNATAKA ROAD TRANSPORT CORPORATION (NEKRTC) CENTRAL OFFICES SARIGE SADANA KALABURGI-585 101 REPRESENTED BY ITS CHIEF LAW OFFICER

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(BY SRI. F S DABALI, ADVOCATE)

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AND:

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…APPELLANT

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GOVINDAPPA S/O LATE NARAYANAPPA AGED ABOUT 51 YEARS SINCE DEAD RESPONDENT Nos.2 TO 4 ARE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT No.1

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HC-KAR

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GAYATHRI @ GAYATHRIYAMMA W/O GOVINDAPPA AGED ABOUT 43 YEARS

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RASHMITHA D/O GOVINDAPPA AGED ABOUT 18 YEARS

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JYOTHI D/O GOVINDAPPA AGED ABOUT 16 YEARS ALL THE RESPONDENTS ARE RESIDING AT MARIDASANAHALLI TUMKUR-572 141 SINCE THE RESPONDENTS NO.1 IS OF UNSOUND MIND AND RESPONDENT NO.4 IS MINORS, HENCE REPRESENTED BY THEIR WIFE AND MOTHER RESPECTIVELY SMT GAYATHRI W/O GOVINDAPPA

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…RESPONDENTS

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(BY SRI KALYAN R, ADVOCATE FPR R2 TO R4 R1 IS DEAD)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.3998/2015 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.10,25,000/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION, TILL DEPOSIT AND ETC.

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IN MFA NO. 5274/2017

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BETWEEN:

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SRI GOVINDAPPA S/O LATE NARAYANAPPA AGED ABOUT 51 YEARS,

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SMT GAYATHRI @ GAYATHRIYAMMA W/O GOVINDAPPA

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HC-KAR

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AGED ABOUT 43 YEARS,

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KUMARI RASHMITHA D/O GOVINDAPPA AGED ABOUT 17 YEARS,

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KUMARI JYOTHI D/O GOVINDAPPA AGED ABOUT 16 YEARS, ALL ARE R/AT MARIDASANAHALLI, TUMKUR 572141 SINCE THE PETITIONER NO.1 IS UNSOUND OF MIND AND PETITIONER NO.3 & 4 ARE MINORS REPTD BY GUARDIAN SMT GAYATHRI THE APPELLANT NO.2

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...APPELLANTS

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(BY SRI. KALYAN R, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR KSRTC, DOUBLE ROAD SHANTINAGAR BANGALORE 560027

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...RESPONDENT

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(BY SRI. F S DABALI, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.3998/2015 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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HC-KAR

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ORAL JUDGMENT

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Both the appeals are filed calling question the judgment and award dated 31.1.2017 passed in MVC No.3998/2015 by the XXII Additional Small Causes Judge and Member MACT, Bengaluru¹ . Hence, both the appeals are taken up together for consideration.

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For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.

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The relevant facts in a nutshell leading to the present appeals are that claiming compensation for the death of the deceased, who was a 19 year old girl as on the date of the accident i.e., on 31.8.2015, her parents and sisters instituted claim proceedings. It is the case of the claimants that when the deceased was crossing the Bengaluru – Tumakuru National Highway in front of Shobha Apartments, a Karnataka State Road Transport Corporation² bus being driven by its driver in a rash and negligent manner hit the deceased causing the accident in question, wherein the deceased

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1 Hereinafter referred to as ‘Tribunal’

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2 Hereinafter referred to as ‘KSRTC’

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HC-KAR

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succumbed to the injuries on the spot. The KSRTC was arrayed as respondent in the claim proceedings and they contested the same. The Tribunal vide the judgment and award dated 31.1.2017 partly allowed the claim petition and awarded a total compensation of `10,25,000/- together with interest at 8% p.a. Being aggrieved, the KSRTC has preferred MFA No.5647/2017 and the claimants have preferred MFA No.5274/2017.

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Learned counsel Sri F.S.Dabali for the KSRTC assailing the finding on negligence, recorded by the Tribunal contends that the claimants have not examined any eyewitness to the accident and the driver of the bus having been examined as RW.1, the Tribunal ought to have held that the deceased also contributed in causing the accident in question. Referring to the sketch (Ex.P4), it is further contended that the accident occurred on a one way road and the place, where the deceased was crossing, did not have a pedestrian crossing. That the road was a National Highway, which is barricaded by iron bars, on both sides and the deceased ought not to have crossed the road at the said place. Hence, it is contended that the findings on negligence recorded by the Tribunal is

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HC-KAR

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erroneous. It is also contended that the quantum of compensation awarded is on the higher side and the interest awarded at 8% p.a., is excessive.

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Per contra, learned counsel appearing for the claimants justifies the finding on negligence recorded by the Tribunal and contended that no independent eye-witness has been examined by the respondent. It is further contended that the quantum of compensation awarded is on the lower side and seeks for enhancement of the compensation.

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The submissions of both the learned counsels have

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been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are:

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i.Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with?

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ii.Whether the quantum of compensation awarded is just and proper?

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Re. question No.(i):

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The claimants have averred in the claim petition that when the deceased was crossing Bengaluru – Tumakuru National Highway carefully, suddenly a KSRTC bus being driven

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HC-KAR

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by its driver in a rash and negligent manner came and hit the deceased. In the statement of objections filed by the KSRTC before the Tribunal, it was averred that the driver of the bus was moving at moderate speed and the deceased was crossing the road without following the traffic rules and it was prohibited for the public to walk on the road. Claimant No.2 was examined as PW.1. However, she is not an eye-witness. The charge sheet (Ex.P6) has been filed against the driver of the bus. The driver of the bus (RW.1) has deposed that he was driving the bus slowly and cautiously on the proper side of the road and that the deceased crossed the Highway without following the traffic rules and there was no fault on his part in causing the accident.

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It is forthcoming from the sketch (Ex.P4) that although the road was a National Highway and was a one way road proceeding towards Bengaluru, it is relevant to note that the width of the road is 30 feet and the accident occurred on the spot, which was 2 feet away from the right hand side and 28 feet on the left hand side from the edge of the road. Hence, it is clear that the spot of occurrence of the accident was on the extreme right hand side of the road in the direction in which

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HC-KAR

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the bus was traveling. It is clear from the same that the testimony given by RW.1 that he was proceeding slowly and cautiously on the road is incorrect. As rightly contended by the learned counsel for the claimants, no eye-witness has been examined by the KSRTC with regard to the aspect of negligence, a charge sheet has been filed against the driver of the bus by the police authorities after the investigation.

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The Tribunal, noticing that the charge sheet has been filed against the driver of the bus, recorded a finding that the driver of the bus was negligent in causing the accident, which is just and proper. The appellant has failed in demonstrating that the said finding is erroneous and liable to be interfered with by this Court in the present appeal. Hence, question No.(i) framed for consideration is answered in the

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Negative.

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Re. question No.(ii)

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The deceased was aged 19 years as on the date of the accident. It is averred that she was working as a Stock Incharge at Sri Dattatreya Enterprises and was earning `15,000/p.m. However, no documents have been produced to

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HC-KAR

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demonstrate the income. The Tribunal has assessed the notional income of the deceased at 6,000/- p.m. Having regard to the date of the accident, the notional income is reassessed as 9,000/- p.m. To the said income, 40% is required to be awarded towards future prospects in terms of the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Ltd v. Pranay Sethi³ and 50% is to be deducted towards personal expenses since the deceased was un-married. Hence, the loss of dependency is re-assessed as (9,000/- + 40% - ½ x12x18) 13,60,800/- as against `9,72,000/- awarded by the Tribunal.

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The compensation towards loss of consortium is required to be awarded to claimant Nos.1 and 2 in terms of the judgment of the Hon’ble Supreme Court in the case of Magma

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General Insurance Company v. Nanu Ram Alias Chubru Ram⁴ and accordingly, 40,000/- each together with an escalation of 20% is to be awarded towards the same. Hence, loss of consortium is assessed as (48,000/-x2) `96,000/-. The

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3 (2017)16 SCC 680

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4 “(2018)18 SCC 130”

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HC-KAR

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compensation towards funeral expenses and loss of estate also has to be awarded in terms of the aforesaid judgment in a sum of 15,000/- each together with escalation at 20% and accordingly, a sum of 18,000/- each is awarded towards the same.

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In view of the compensation awarded towards funeral expenses and loss of estate, the compensation awarded by the Tribunal towards loss of love and affection and transport of dead body at 40,000/- and 3,000/- respectively, are set aside.

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It is noticed that the Tribunal has awarded interest at 8% p.a. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a.

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It is forthcoming that the notice issued by this Court in MFA No.5647/2017 to claimant No.1 (father of the deceased) returned with an endorsement as ‘deceased’. Hence, the compensation re-assessed by this Court together with accrued interest is required to be apportioned amongst claimant Nos.2 to 4.

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HC-KAR

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In view of the aforementioned, the compensation

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re-assessed is as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of dependency	972000.00	1360800.00
2	Loss of estate	0.00	18000.00
3	Loss of consortium	0.00	96000.00
4	Funeral expenses	10000.00	18000.00
5	Loss of love and affection	40000.00	0.00
6	Transportation expenses	3000.00	0.00
	Total	1025000.00	1492800.00

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Accordingly, the claimants are entitled to enhanced compensation of (14,92,800/- - 10,25,000/-) = 4,67,800/rounded off to 4,68,000/-.

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Hence, question No.(ii) framed for consideration is

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answered in the Negative.

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In view of the aforementioned, the following:

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ORDER

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i) Both the appeals are allowed in part;

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HC-KAR

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ii) The judgment and award dated 31.1.2017 passed in MVC No.3998/2015 by the XXII Additional Small Causes Judge and Member MACT, Bengaluru, is hereby modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellants/claimants are entitled to a total compensation of `14,92,800/together with interest at 7% per annum from the date of the petition till its realization;

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iv) The amount deposited by the appellant in MFA No.5647/2017 together with records be transmitted to the Tribunal;

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v) The appellant in MFA No.5647/2017 (respondent before the Tribunal) shall deposit the remaining amount, together with accrued interest within a period of six weeks;

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vi) Out of the compensation awarded, 60% shall be payable to claimant No.2 (mother of the deceased) and 20% each to claimant Nos.3 and 4;

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vii) Out of the compensation awarded to each of the claimants, 50% shall be digitally released to the

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HC-KAR

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said claimants and the balance 50% shall be kept in fixed deposit in any nationalized bank of the choice of the claimants for a period of two years insofar as claimant No.2 is concerned and for a period of three years insofar as claimant Nos.3 and 4 are concerned. Upon maturity of the fixed deposits, the same shall be digitally released to the claimants, together with accrued interest, without any further orders either from the Tribunal or this Court in that regard.

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viii) The Registry to draw the modified award accordingly;

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No costs.

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 8

The Managing Director v. Govindappa

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The Managing Director v. Govindappa

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