The Depo Manager Vs Megha K R

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2024 PASSED IN MVC NO. 1238/2021 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT, TUMAKURU, AWARDING COMPENSATION OF RS.36,53,863/WITH INTEREST AT PERCENT 6 P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR ADMISSION,

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THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and

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HON'BLE MR. JUSTICE T.M.NADAF

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This appeal is by the Karnataka State Road Transport Corporation [for short, ' the Corporation '] calling in question the judgment and award dated 29.07.2024 in MVC No.1238/2021 passed by the VII Additional District Judge and Member, MACT, Tumakuru [for short ' the Tribunal '] on the ground of contributory negligence as well as quantum. The date of the accident and the death of one Krishna Murthy are not in dispute. The dispute in this appeal is with respect to contributory negligence and the quantum of compensation.

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Heard Sri G. Lakshmeesh Rao, the learned counsel for the appellant - Corporation and Sri Mallikarjun B Ryakha, the learned counsel appearing for the claimants. M/s ICICI Lombard, though served, remained unrepresented and vide order dated

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07.07.2025, notice of this appeal to the fourth respondent is dispensed with.

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Sri G. Lakshmeesh Rao, taking us through the Judgment and Award, so also the record of the Tribunal, submits that the deceased was riding the motorcycle in the opposite direction and after seeing the Police, took U-turn abruptly, and came into contact with the road barricade and then to the bus. In the circumstances, the deceased has contributed to the accident. The Tribunal though has considered this aspect of the matter, however, has fixed the contributory negligence to the extent of 10%. The Tribunal has not properly considered the evidence of the driver of the bus. As per the spot sketch, the accident has taken place in the middle of the road. The deceased should have been more circumspect while taking the U-turn observing oncoming vehicles.

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He further submits that as per the Salary Certificate produced at Exhibit- P9 the total gross income is shown at Rs.21,651/-. The Tribunal has considered the entire amount without deducting the permissible deductions available in the salary slip. The deceased was paid Rs.500/- towards washing allowance, Rs.120/- towards canteen allowance, Rs.50/- towards union allowance and professional tax at Rs.200/- per month. The Tribunal has failed to consider these deductions. If these directions are considered, then the income comes down to Rs.21,650/- [21,650 - Rs.870] to Rs.20,780/-. He further submits that the Tribunal has considered 20% as compensation under the conventional heads though the accident occurred in the year 2021, the claimants are entitled for enhancement of 10% under the conventional heads and with these he sought to allow the appeal and interfere with the Judgment and Award.

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5. Conversely, Sri Mallikarjun B. Ryakha

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submits that the Tribunal has considered the income of the deceased with respect to gross income at Rs.21,651/- [rounded off to Rs.21,650/-] as per the pay slip. The deceased was 34 years as on the date of the accident. The Tribunal has taken 40% towards future prospects and applied the appropriate multiplier 16 . As per the police record especially the complaint both the vehicles were moving on the same direction and the driver of the bus was negligent in driving the bus. As per the spot sketch, the accident has occurred in the middle of the road which shows rash and negligent driving of the driver of the bus. However, the Tribunal taking into consideration the evidence of RW.1 has observed that the deceased was coming from Gubbi towards Tumakuru without wearing helmet and after seeing the police, the deceased has taken u-turn and came in contact with the bus resulting in the accident. In these circumstances, the finding of the Tribunal fastening

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HC-KAR

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10% of contributory negligence is not sustainable in law. The Tribunal has not properly considered the evidence of PW.2 - eye witness with the police record and the cross-examination of RW.1. Though the learned counsel has contended that 20% escalation on conventional heads is not exorbitant, but is not in a position to support the reason of the Tribunal to award 20% of compensation awarded as the accident occurred in the year 2021. Further, the learned counsel to the query of this Court regarding the deduction stated in the pay slip is not in a position to sustain his arguments on considering the entire gross salary shown in the pay slip by the Tribunal.

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Having heard the learned counsels for the parties, the questions that would arise for consideration are as under:

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(i) Whether the Tribunal is justified in fastening 10% contributory negligence on the rider of the motorcycle? and whether contributory negligence

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is to be enhanced given the factual background of the case as per the record?

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(ii) Whether the appellant - Corporation has made out a case for interference with the compensation awarded by the Tribunal?

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Our answer to the above points are as under:

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(i) in affirmative required to be enhanced.

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(ii) partly in the affirmative for the following:

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REASONS:

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A perusal of Exhibit P.5 - spot sketch

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clearly shows that the accident has taken place on the other side of the road which has been bifurcated by a median. As per the evidence of RW.1, the rider was proceeding from Gubbi towards Tumakuru and the bus was plying from Tumakuru to Gubbi. The spot sketch clearly shows that the accident occurred in the middle of the road which is not explained by the eyewitness in his evidence. Though the driver of the bus was cross-examined, he has stated in his

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evidence regarding U-turn taken by the rider of the motorcycle on he seeing the police. The RW.1 stood firm in the cross-examination and nothing worthwhile is elucidated to discredit his witness.

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PW2 in his examination-in-chief has stated

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that the bus caused the accident to the motorcycle resulting in injuries, subsequently to the death of Krishna Murthy N.L. But in the entire examinationin-chief, this witness has not stated the direction of the motorcycle. In the cross-examination, this witness has admitted that the road which runs between Tumakuru to Gubbi is a two-way road. In the cross-examination, the witness has stated that the deceased was proceeding in his motorcycle from Tumakuru to Gubbi. However, the said specific contention is absent in the examination-in-chief. He has further admitted that the accident has taken place in the middle of the road, whereas in the examination-in-chief he has stated that the deceased

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was proceeding on his two wheeler wearing helmet on the left side of the road. These discrepancies in the evidence are shrouded with suspicion. It is not the case of the claimant that the accident has taken at the extreme left side of the road i.e., from Tumakuru to Gubbi, as contented by the said witness in his examination-in-chief. The road is a two-way road and as per the evidence of RW1-driver, the deceased was coming on the opposite direction i.e. from Gubbi towards Tumakuru, whereas the bus was plying from Tumakuru to Gubbi. The claimants have not produced the IMV report, for the best reason known to them. In the evidence of RW2, the Manager-legal, ICICI Lombard General Insurance Company Limited, Bengaluru, to a question by the first respondent regarding the damage to the vehicles, the witness has categorically stated that as per the IMV report, front portion of the motorcycle and bus got damaged. However, the witness volunteers as per charge sheet, back portion of the motor cycle and front portion of

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bus got damaged. The cross examination by the claimants suggests that IMV report is admitted. Withholding of the motor vehicle examination report, is not explained by the claimants. This along with discrepancies in the evidence of PW2 hit hard on the case projected by the claimants with the manner of accident alleging the driver of the bus is solely responsible for the accident. The Tribunal having considered the fact that the deceased abruptly has taken U-turn, upon seeing the police checking the vehicles and in that event came in contact with bus, resulting in accident causing injuries ultimately in death. However, the fact remains that the accident has occurred in the middle of the road. Both the rider as well as the driver of the bus should have been more cautious and circumspect while using the road in a heavy junction, surrounded by shopping complex which is admitted by RW1 in his cross-examination. The Tribunal having considered that the rider of the motorcycle was negligent in taking U-turn in an

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abrupt way ought to have fastened the appropriate extent of contributory negligence than the one considered in the judgment. Though the driver of the bus has stated in his evidence that he has just started his bus from the last bus stop, which was situated, 400 metres before the spot of accident, on the left side of the road, but there is no explanation regarding the accident spot that happens to be middle of the road. Since the driver of the bus driving a heavy passenger vehicle should have been more cautious and circumspect while using the road and he is the best person to avoid the accident having sufficient space towards the left side. In these circumstances, both driver as well as rider are responsible and contributed to the accident.

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Though the learned counsel appearing for the respondent argued that the Tribunal in the presence of police records and spot sketch erred in coming to a conclusion that there is negligence on the

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part of the rider of the motorcycle, however, he is not

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in appeal calling in question the finding of the Tribunal. In view of established negligence on the part of the rider of the motorcycle, the only question which remains before us now is to consider the extent of the contributory negligence. The Tribunal once having come to a conclusion that the rider on seeing the police has taken U-turn abruptly and entered the other side of the road, and in the presence admission by PW2 that the road is a twoway road, the Tribunal ought to have fastened the contributory negligence to a higher extent than the one considered by the Tribunal.

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Given the facts and circumstances of the case, especially the spot sketch and evidence of PW2, RW1 and RW2, we are of the considered opinion that if the contributory negligence if considered to an extent of 25% on the deceased, the same would meet the ends of justice, bearing in mind that though the

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accident has occurred on the other side of the road, the driver of the bus had all last chance to avoid the accident, which he has not exercised properly in the teeth of records produced before us.

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In these circumstances the finding of the Tribunal on the contributory negligence is affirmed, but the extent is raised to 25% than to 10% as held by the Tribunal. Accordingly, point No.1 is answered.

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Insofar as the quantum is concerned, as rightly contended by Sri G.Lakshmeesh Rao there are deductions shown in the pay slip to the extent of Rs.870/- which the Tribunal has failed to consider while taking into consideration the income of the deceased. If the permissible deductions have been considered out of the salary of the deceased at Rs.21,650/-, the same comes to Rs.20,780/-. Considering the age of the deceased within 40 years at the time of the accident, 40% requires to be added towards future prospects. Since the deceased was

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aged 34 years as on the date of the accident the proper multiplier would be 16 as has been considered by the Tribunal. In these circumstances, the compensation under the head loss of dependency requires reconsideration which is as follows:

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Details for Comp	utation of	Loss of Dependency
MonthlyIncome		20,780
Addition towards FutureProspects	40%	8,312
Monthly Income + FutureProspects		29,092
Annual Income		3,49,104
Deduction Towards personalexpenses	1/3	1,16,368
Multiplicand (After Deduction towards personalexpenses)		2,32.736
Multiplier	16
Loss of Dependency		37,23,776

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The Tribunal has awarded compensation in

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a sum of Rs.1,44,000/- towards loss of consortium, Rs.18,000/- each towards loss of estate and funeral expenses. The claimants are entitled for Rs.1,20,000/- towards loss of consortium and Rs.15,000/- each towards loss of estate and funeral expenses. The Tribunal though awarded appropriate

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compensation under the loss of consortium and conventional heads has committed an error in adding 20% escalation on the conventional heads instead of 10% considering the year of accident as 2021. Having so considered, the claimants are entitled for a sum of Rs.1,65,000/(Rs.1,50,000/+ 10%) towards conventional heads.

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

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follows:

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1.	Loss of Dependency	:	Rs.	37,23,776
2.	Loss of consortium (40,000 x 3)	:	Rs.	1,20,000/-
3.	Loss of Estate	:	Rs.	15,000/-
4.	Funeral expenses, transport and other expenses	:	Rs.	15,000/-
5	10% escalation	:	Rs.	15,000/-
	(1,50,000 x 10%)
	TOTAL	:	Rs.	38,88,776/-

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Accordingly, the claimants are entitled for a

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sum of Rs.38,88,776/- as against Rs.40,59,859/-. In view of re-determination of percentage of contributory negligence, the Corporation is liable to deposit 75% of the compensation which shall carry interest at 6% per annum from the date of claim petition till realization.

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Accordingly, for the foregoing reasons, we proceed to pass the following:

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ORDER

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i) The appeal is allowed-in-part ;

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ii) The judgment and award passed by the Tribunal in MVC.No.1238/2021 dated 29.07.2024 passed by the VII Additional District Judge and Member, MACT, Tumakuru is modified and the compensation is reduced to Rs.38,88,776/as against Rs.40,59,859/-.

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iii) The appellant - Corporation shall deposit 75% of the reduced compensation at 6% interest from the date of petition till realization within eight weeks from the date of receipt of a certified copy of this order.

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iv) The amount in deposit shall be transmitted to the concerned Tribunal for disbursement.

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v) The apportionment and disbursement of compensation amount shall be as per the impugned order of the Tribunal.

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vi) No order as to costs.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(T.M.NADAF) JUDGE

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NV,SA