Karnataka High Court
Smt H S Swarnalatha W/O Late Sreedhar vs The Vice Chairman & Managing Director K S ... on 4 March, 2010
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
DATED THIS THE 4'?" DAY OF MARCH, 2010' L
PRESENT: ""
THE HONBLE MR. JUSTICE D.Vh..s15rYLEN"E'RA';VKU'MAR " " V
AND . ' " . . V .
THE HONBLE MR. JUSTI-jE1..§:.N.i{ESr:AvA§r,¢:RAyAt:A'A
M.F.A. No.1 13_;#4;%:6/20--<3\8 {MW : 1 ' 1
BETWEEN: L' '
1. 'V
W/O LATE s:REEDEiAR .
2. L " V
D /O
AG;_ED__.°LBQ:;ITV._2'3YEARS . J
3. H_s.A.M41THDEV'-7) h J
8/0 LATE
AGED ABOUT' 17 YEARS
" ..Af'PE};}'ugANT.NO.3 VSMINOR REP. BY
' V.HIs.MvO"rHERvAND NATURAL GUARDIAN, THE
. 1% _APREL}:'ART..sMT.H.s.swARNALATHA
ALL RESIDINO AT
c/O .K;N.AsHwATHANARAYANAsE'rrY
NO.1Ee.?3, 2ND CROSS
M.1r,}.ROAD, TSMKUR APPELLANTS
"-{B'y sMT.BHUsHAN1KUMAR, ADVOCATE}
':
€35»
AND:
THE VICE CHAIRMAN
8: MANAGING DIRECTOR
K.S.R.T.C. CENTRAL DEPOT,
K.I-LROAD, SHANTHINAGAR
BANGALORE. A-
{BY SRI.F.S.DABALI,ADV.} ;
THIS MFA IS FILED U/S 1jz3j;.('1) 'I()'f?._4PI1"'V_A'ACT
AGAINST THE JUDGEMENT A}\?D_ AWEIRDI =
5.9.2008 PASSED IN Mvc.NQ.7.4.5/2000 IQIQFILE OF* A
THE ADDL. CIVIL JUDGE (SI§:'D.N;SAND"M.A¢T, TUMKUR,
DISMISSING THE (:LAiM--« PETITION
COMPENSATION. " M " "
THIS cTd"MISN__G_« FINALVDISPOSAL THIS
DAY, KEsHAVAivAR.1YAIvA,'I» "DELIVERED THE
FOLLOVVENG: " I 4'
gJUbGMENT
Section 173(1) of the Motor
v:'ViE:'hiC1eS 119538' the claimants is directed against
' 'I""Ié"Vj'1IdgInjent.' agfid award dated 5.9.2008 passed by the
Judge (Sr.Dn.) 82: MACT, Turnkur in
MVC;No..'%4~5/2000.
4
same day. Thus according to the claimants, the
accident was solely due to the negligence of the of
the KSRTC bus. Therefore. the claim petiti(jn"tyasj: H
against the KSRTC. It was the the.
claimants that the deceased :_-was
years was working as a Cleric.
relevant point of time was l1.'1GIl_%[l1lyvVVi§SalaFy of
Rs.11,305/-- and he "itx:;g;s_ the§.y'enlycjvebi-'cad earner of the
family and as ar_esul=t"'of of the deceased
the claime.1"1tS4__alre_';1eftlwithno livelihood.
'at The claifm:petiti;o:i;__'was contested by the KSRTC
inter alia that the accident was not due
t0':c_j't3he;_Anegligence---sf the driver of the KSRTC bus but it
to the negligence of the driver of the
ifracto:-diltailer, therefore the KSRTC is not liable to pay
any cofnpensation as such the claim petition is bad for
'nyofrjoinder of the necessary parties namely the driver,
___the owner and the insurer of the Tractor/frailer. The
KSRTC also disputed the other averments made in the
claim petition regarding the age and income"
deceased.
4. In the light of the pleadings .of"..the' V
Tribunal framed the following issues:.
1. Whether the claimantes proy'e'.thatg on
7.2.2000 at 0.30 h_o__1irs_ on Kushalnagjara
---Madikere V 'National .4 Highway 'near
Mahapatna ""--Vi1].age,{.,' j. Sreedhar written
statement travelling: in bus
bearingNo.KA422-»F4~8l3.3, then there was
aceident'due to Worngfuiewtise of said bus
by its ?d_r_ifVe'r.jwh.ieh--.jdashed against a T.'I'.
Unit bearing' ]':§-A.----12.;T437O, as a result
.... su'st_ained_s6§vere injuries and
sue;eum'b4ed.4 '-to the injuries in the
'-hospitai-.?'i ' '
"2... the claimants prove that they
are the-----~'LRs. and dependents of
A S reedhar?
A compensation the claimants are
' .e.ntit1ed and from who'?
0 " Add}. Issue:
1. Whether the petition is bad for non-
joinder of necessary parties'?
6
5. During enquiry, the first claimant examined
herself as PW} and two more witnesses as PWs. 2.: 3
and got marked Exs.P.1 to R15. On the
driver of the KSRTC bus was examinedV__als..::
Exs.R.l to R. 13 were marked. After
the Tribunal on assessmentfl of the-71,o'ral
documentary evidence, by appeal,
answered issue No. the "and the light of
the said finding, disrnisisedtthe jpetition without
going into" Compensation.
Being aggriel§red..V_ the~.disr1_1issal of the claim petition.
the elaidmanitslare before this Court.
Upondlllservice of notice of this appeal, the
'KSRTC has appeared through its counsel.
'W'_eVdhaVelh.e*ard the learned counsel for the parties and
perused the records.
/"2 -
£,_f .. --
- 1% x' '
J:
9
that in View of the legal position as laid down in the
above decisions, the Tribunal ought to have aliowedpthe
claim petition by quantifying the Compensation'
to the claimants. She further submitted,'!i1:I:at:.d.i.tho'ug}i..
the Tribunal has not quanti¥fied>_:'4pthe".pp
payable. since the materials available on record; ale',
sufficient for this Court to regard
to the quantum of is no
need or occasion for to the
Tribunal Viquantification of the
other hand, this Court itself
could duwantgiftr payable on the basis of
thepgievidence' avvaiiaiaie on record; it is her further
,' sVub1nission'«--.that since the deceased was a permanent
Vysya Bank, and was aged 46 years as
onu°the~-V:da't'e of death, in the light of the decision of the
'Supprerne Court in the Case of Sarla Verma and others
"'Ys."dI)eIhi Transport Corporation and another reported
1.0
in 2009 ACJ 1298 (SC), 30% of his iast drawngsaiary
should be added towards the future prospect:V:an.'§i.y:"or1
that basis the loss of dependency has to be
8. On the other hand, it
counsel appearing for respondent
justify the judgment of the and the finding recorded thatvvthevjaccident was due to the negligence the Tractorw Trailer is in" aecbrda_nce »vVith.g."t--heevidence placed on record"andLthere*ft.is no' e.rror"'in" the said finding as such it doesqnot cailiVfor.in'terfer(;_nce by this Court; that as the owner and the 'fi_r1st_1r'e~--;'iV of the tractor have not been ;_pa'rties to'"the ciaim petition, the Tribunal has the claim petition; that the evidence placed by the respondent on recordgand the oral evidence of the driver of the KSRTC clearly establishes that the driver of the 'I'ractor- _M___'i'raiier drove the vehicle on the wrong side of the road. E2 quantification of the compensation. the matter requires to be remanded.
9. In the light of the submissions made' sides, folioviring points arise for our eonsideI'atiofi' appeal: e (1) Whether the Tributial jiisttilfitefii dismissing thel_Cla.jrr1 llpetitions'V:'hVsid111g'; that there was n()llrie:gligenee- 'theflpart of the driveizof that the accidenVt_s_"Wa.si1" fiitte to the negl1gencee'bl" V 'ldriverv the Tractor- If the a11siive1'_ .__t:he""ab0ve point is in favour _ _ of the appe-iiants;"V .:ulWhether the matter requires to be remanded to the Tribunal? And l .. V Whether the materials available on record are sufficient to quantify the compensation payable, if so, to what amount the ciaimants are entitled to? H1 13
10. As noticed earlier, according to the claimants, the deceased boarded the KSRTC bus to to Mangalore and at the time of the acciden«t,.'44'_h:e'iviras travelling in the KSRTC bus as a passenge_r,fl _ dispute that the accident occurredlflon"ac'coant.Vof collision between the KSRTC and Trailer. The Tribunal in this:'case lh-asinrolcfeeded to dismiss the claim reliance on the finding recorded by claim petition arising out lltiowvvhich the present A copy of the said judgment has beenjlprodulcejdg' respondent as per EXR. 12. Inggthe said the Tribunal at Mysore by placing judgment of the Criminal Court in y(j'.7c.i\io.Ti;_otoay2'ooo fiied against the driver of KSRTC whereby the driver of the bus was acquitted of the 'cliiarges levelled against him, has held that there was no 'negligence on the part of the KSRTC bus driver. As the 14 present ciaixnants were not parties to the said proceedings, the said judgment could not be accepted as conclusive evidence under the princip1es_».oiF judicata as per Section 1 1 of CPC agains.t__th-e to dismiss their claim petition. Therefo'r_e,':
in this case is not justifiedin piacing reliance. on thefl said judgment and on the soiie. of -that": judgment in dismissing the c1ajn3_._.":petiti0n..,1" "iT_t_ie"'*I'1_'ibuna1 ought to have considered thegm-eiterisds:._p1écevdV=. record in this case and n.4*ve €reco_rded'2'in"independent finding on 'the in actionable negligence accordingiyt. ' A _ _ 11. "'Ne' heire Apeiv 'sed the oral evidence placed by t1vioe:°~p;_1;ft1e_s onxflrecmcd. From the perusai of the same, it "clear that the accident was due to the drieigligencje-'V. the driver of the KSRTC bus if not in its entirety' but definiteiy on account of composite / 15 negligence on the part of the drivers of both the vehicles. The respondent KSRTC itself has produced the copy of the sketch of scene of occurrence prepared by the Police during the investigation as per _ could be seen from the contents of ..
the tar road at the place of the=.A:accidlent'ai The road was running fror'n=._]_E3ast'to"'JVestV:'that.,_VVis Kushanagar side to Madilte-rei--.._»and' hus was proceeding from Eastwto actual place of collision between the"'tWohvel1i§31eSrV'35;shown in EX.R.4l~ was at the of}f'%/2_ feet from the southern edge of the tar aroadl distance of 8 feet from the northern edge. thentar road. From this it is clear that the 'collision has taken place almost at the center the version of the driver of the as could be seen from his evidence was that there was a median just at the place of the 'accident, the sketch ~» Ex.R.«-'1 do not support the said , 16 version. As per EX.R--4, there was no road median either before the place of actual collision or aftersjthe place of collision. Ex.R--4 further indicate.s_l44'_tl:1'at"'V;~ about 100 feet prior to the actual collisiori-.i:)oiii'tll.4there_'fl were tyre marks of the KSRTC the' about 120 feet after the actual plaeelof collivsioii, 'the; "
marks of the bus were fouh"d_lllto_ hairs. 'continued and the bus was ultirh-ate-l_xy near a road side tree. This shows. the bus could not bring eir;eulvafter"'seeing the Tractor- Trailcr 'fron<1E"'the. opposite direction from a distance»._Loft 100' even after the collision, the driifer ucould' bring the bus to halt for a further .of<.._12O feet and it appears that the bus has still only near a road side tree after a dis'tar1ce 120 feet from the place of actual collision. "One thing which is obvious from this state of affairs as siilildiscated in the sketch is that, the KSRTC bus must {lg 18 the bus nor the front portion of the tractor had sustained any damage.
13. Therefore, it is a clear case of th.e_'accident being due to the negligence of the bus if not totally atleast to greater of RW.1 that the driver of, droye -' on the wrong side of the cannotibeiiaccepted V since the actual the median and since the almost on the left "on-the northern side of the roadlit the tractor was proceeding on the wrung' side of the road. In any case, even as per " _ th':e':"ievj_i.der1ce 'RW'--;'1, he saw the Tractor--Trai1er coming :'o.;§'posite-tgdirection from a distance of 100 to 150 according to him he had blown the horn to give? the signal to the tractor driver. From the 'evidence of RW.1, it is clear that it is only after seeing [the bus coming from the opposite side, the driver of the §'/' téx 20 negligence on the part of the driver of the KSRTC bus. in the Criminal Court, the driver of the KSRTC bijshas been acquitted on the basis of the evidence been given by the driver of the learned counsel for the respondent «i,sou'gi'it.: reliance on the evidence Vofa the driver oofithie 'I'1'2li1ctor--"g Trailer before the Criminal oifnwhich has been marked as evidence of the said d1'iver._of per Ex.R.7, in our there was no negligencex driver. On the other hand evidence as a whole would indicaize that'*the'lacc:ident has occurred beyond the road rriedioai.iié.a_lnd_Vthe 'I'ractor--'i'railer had passed the curve had'v_i.l.pro'CVeeded towards the Northern side of the road. 'flper the evidence of the investigating Officer "§3e--forellthe Criminal Court, a copy of which is marked as the actual collision occurred about 25 feet 21 after the road median. It is well settied law that the finding recorded by the Criminal Court is not binding on the Tribunal and the Tribunal has to assess the evidence placed before it and K regarding actionable negligence! that the degree of proof before beyond reasonable doubt the'~d_egreel¥§of proof before the MACT of probabilities. Therefore, the__ Tribunal in placing reliance Criminal Court acquittingl: KSRTC bus or on the finding recordedbyr an'ot1'ie'I* in a ciaim petition arising outgof the same' accident. Assessment of the evidence placed" onrecord in this case as discussed above clearly there was negligence on the part: of the driver 'the KSRTC bus and his negligence was also I it responsible for the accident.
24 and was drawing a monthly salary of Rs. 1 1,305/~. They have also produced cumulative record as per which shows his age as on the date of the 46 years. In our opinion, the evidence _A'aVail.ab1_e "on._ record is sufficient for this :e£Q7 compensation payable tothe c};'a_ir1:ar1tsV»"'ori settled principles of law laid several: decisions of the Apex Court and C301}:-rt: "~..Therefore, there is no reason for remanding..th:e'-matter the purpose of quantification. .
8." certificate of the deceased accordiri§'--«todeceased was drawing a gross .,Rs.1"i','3{)§/~. As per Ex.P.8, the date of the 'deceased was 22.4.1954. The accident iocciirreddivdvieioriei'7.2.2000. Therefore, the deceased had cornpleted 46 years and was running 47"] year of his In Sarla Vermais case referred to supra, the Apex iflourt while considering the question as to whether the 27 expenses. Thus, the claimants are entitled to "total compensation of Rs.14,63,984/-- which is round'ed:'~of~Vto Rs.14,64,000/--.
20. Accordingly. the appealpiés judgment and award dated._5.9A.'2Q"08 passed "byijg Additional Civil Judge (sr.1'5a._ji 3; in MVC.No.74«5/ 2000, petition is set aside. The claim petition i-'part, awarding compensatioiipé at 60/0 per annurn' the date of payment.
The is directed to pay the compensation interest after deducting inteiinfteep compensation if any already paid, within 6 _ weeks' 'from today.
f):Lit"of the compensation amount, we award 50% 'ofethesame to the first claimant and 25% each in favour ,. Ffaimants 2 and 3.