Dhanalakshmi Vs the Divisional Manager

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2018 PASSED IN MVC NO.8358/2016 ON THE FILE OF THE XVI ADDITIONAL JUDGE,

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HC-KAR

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MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-14) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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

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

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ORAL JUDGMENT

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The above appeal is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 10.08.2018 passed in MVC No.8358/2016 by the Member, MACT., XVI Addl. Judge, Court of Small Causes, Bengaluru² seeking for enhancement of compensation.

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The Tribunal by its judgment and award dated 10.08.2018 partly allowed the claim petition and awarded a total compensation of `8,33,000/- together with interest 9% per annum. Being aggrieved, the claimants have filed the above appeal seeking for enhancement of compensation.

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred to as the ‘Tribunal’

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

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The Tribunal recorded a finding that the deceased was negligent to an extent of 30% and the driver of the bus was negligent to an extent of 70% in causing the accident. Hence, although the Tribunal assessed the total compensation payable as 11,90,000/-, it ordered that the claimants are entitled to a compensation of 8,33,000/- together with interest @ 9% per annum.

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Sri Shripad V. Shastri, learned counsel appearing for the claimants-appellants assailing the judgment of the Tribunal on negligence contends that the Tribunal, without any reason has deducted 30% towards the negligence of the deceased. It is further contended that the driver of the bus has taken a ‘U’ turn as is forthcoming from the sketch (Ex.P4) when the accident occurred and the charge sheet has been filed against the driver of the bus. That the Tribunal ought to have held the driver of the bus was entirely negligence in causing the accident in question. It is further contended that the quantum of compensation awarded is on the lower side.

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HC-KAR

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Per contra, Sri F.S. Dabali, learned counsel appearing for the respondent contends that the finding of Tribunal on negligence whereunder it was held that the driver of the bus was negligent to the extent of 70% is just and proper. It is further contended that the quantum of compensation is also just and proper. However, the rate of interest awarded is on the higher side.

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The submissions of the learned counsels for the parties have 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 by the Tribunal as also the interest is just and proper?

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Re: Question No.(i)

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It is the case of the claimants that when the deceased was crossing the road cautiously, a bus owned by Karnataka State Road Transport Corporation³ came at a high speed and

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3 Hereinafter referred to as the ‘KSRTC’

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hit the deceased causing the accident in question wherein the deceased sustained grievous injuries and succumbed to the same. The KSRTC who was arrayed as respondent before the Tribunal has filed statement of objections asserting that the driver of the bus was driving the bus carefully by observing traffic rules and that the deceased was not observing the traffic rules while crossing the road, causing the accident. That the driver of the bus was not responsible for causing the accident.

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The wife of the deceased/claimant No.1 examined herself as PW.1. Exs.P1 to P12 have been marked in evidence including the FIR (Ex.P1), complaint (Ex.P2), final report (Ex.P8). The driver of the bus has been examined as RW.1, wherein he has deposed that the bus was being driven carefully by observing all the traffic rules but the claimant crossed the road without observing the traffic rules, as a result of which, the accident occurred.

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The Tribunal, appreciating the material on record, has noticed that as per the complaint lodged by the father of the deceased, it was stated that when the bus suddenly took a ‘U’ turn, the accident is caused. The Tribunal has also noticed the

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testimony of driver of RW.1 wherein, he has admitted that the charge sheet has been filed against him and that the same has not been challenged. The Tribunal has also noticed that RW.1 has admitted that a Departmental Enquiry is going on against him. After noticing the said aspects, the Tribunal considering sketch (Ex.P4) has held that the deceased was negligent to the extent of 30% and the driver of the bus was negligent to the extent of 70%.

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It is forthcoming from the sketch (Ex.P4) that when the driver of the bus took ‘U’ turn, the bus hit the deceased who was crossing the road. It is further a matter of record that charge sheet has been field against the driver of the bus. It is also pertinent to note that the driver of the bus has not lodged any complaint to the police authorities as to the manner of the occurrence of the accident. The respondent had relied upon the report given by their Traffic Controller as well as accident report (Ex.R1 and R2 respectively) which was disbelieved by the Tribunal on the ground that the Traffic Controller was not examined. The KSRTC did not examine either the Traffic Controller who issued Ex.R2 or any other independent eye witness to the accident. The police authorities having filed the

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charge sheet against the driver of the bus, after investigation which is forthcoming from the record and the accident having admittedly taken place when the bus was taking a ‘U’ turn, it is clear that the driver of the bus ought to have been more careful/vigilant while taking the ‘U’ turn and when he was entering the road, which was being crossed by the deceased. The deceased while crossing the road had no occasion to notice the bus which was entering the road by taking the ‘U’ turn. The Tribunal, without appreciating the manner of occurrence of the accident in a proper manner has recorded a finding that the deceased was negligent to the extent of 30%. The said finding of the Tribunal is erroneous and liable to be interfered with.

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In view of the discussion made above as to the manner of occurrence of the accident, as also having regard to the fact that the charge sheet has been filed by the police authorities against the driver of the bus and the driver of the bus not having lodged any complaint with the police authorities or produced any other records as to the manner of the occurrence of the accident, upon a re-appreciation of the material on record, more particularly, the spot mahazar, it is required to be

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held that the driver of the bus was negligent in causing the accident. Hence, question No.(i) framed for consideration is answered in the Affirmative.

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Re. question No.(ii) :

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The deceased was aged 42 years as on the date of the accident and the Tribunal applied multiplier of 14, which is just and proper. The deceased was stated to be self-employed and carrying on electronics repair and services, earning 15,000/p.m. However, no documents have been produced to demonstrate the income. The Tribunal has assessed the notional income as 8,000/- p.m. Having regard to the date of the accident i.e., 22.10.2016, the notional income is reassessed as `9,500/- p.m.

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Having regard to the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Ltd v. Pranay Sethi⁴ , 25% is required to be added towards future prospects and 1/3^rd is to be deducted towards personal expenses since the deceased was married and is survived by his wife and parents. Accordingly, the loss of dependency is re-

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4 AIR 2017 SC 5157

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assessed as (9,500/- + 25% - 1/3 x12x14) 13,30,056/- as against `11,20,000/- awarded by the Tribunal.

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Loss of consortium is required to be awarded to the claimants, who are the wife and parents of the deceased in terms of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co.Ltd., v. Nanu Ram⁵ at ₹40,000/- each with escalation at 20%. Accordingly, the loss of consortium is re-assessed as (₹48,000/-x3) ₹1,44,000/-.

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The compensation towards loss of estate and funeral expenses is also required to be awarded at ₹15,000/- each together with escalation at 20%. Accordingly, the compensation towards the same is re-assessed as ₹18,000/each.

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In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal towards funeral expenses and transportation of dead body, loss of consortium and loss of estate awarded by the Tribunal stand suitably modified.

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5 (2018) 18 SCC 130

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HC-KAR

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Accordingly, the quantum of compensation is re-assessed

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as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of dependency	1,12,0000.00	13,30,056.00
2	Transportation of dead body and funeral expenses	15,000.00	18,000.00
3	Loss of consortium	40,000.00	14,4000.00
4	Loss of estate	15,000.00	18,000.00
	Total	11,90,000.00	15,10,056.00

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Although, the Tribunal has assessed the total compensation of 11,90,000/-, it has deducted 30% towards negligence of the deceased and awarded a compensation of 8,33,000/-. Hence, the same having been set aside, the claimants are entitled to enhanced compensation of (15,10,056/- – 8,33,000/-) `6,77,056/- .

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It is forthcoming that the Tribunal has awarded interest at 9% 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., on the compensation as reassessed by this Court.

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Hence, question No.(ii) framed for consideration is 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) The appeal is allowed in part;

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ii) The judgment and award dated 10.08.2018 passed in MVC No.8358/2016 by the Member, MACT., XVI Addl. Judge, Court of Small Causes, Bengaluru, is modified holding that the claimants shall be entitled to a further compensation of `6,77,056/- together with interest at 7% p.a., from the date of petition till date of payment in addition to the compensation awarded by the Tribunal. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The respondent-insurer shall deposit the compensation awarded, together with accrued interest, within six weeks;

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iv) Upon such deposit, the enhanced compensation together with accrued interest shall be disbursed in favour of the claimants in terms of the award of the Tribunal;

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