Karnataka High Court
Sakamma vs The Managing Director K S R T C on 25 August, 2014
Author: K.Bhakthavatsala
Bench: K. Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
MISCELLANEOUS FIRST APPEAL NO.6500/2012 (MV)
BETWEEN:
1. Sakamma,
W/o late Thimmarayappa,
Age: 51 years.
2. Manjunatha @Nanjundegowda,
S/o late Thimmarayappa,
Age: 34 years.
3. Kempegowda,
S/o late Thimmarayappa,
Age: 29 years.
All are residing at behind Pavithra
Hotel, Santhebeedi,
Kyatasandra,
Tumkur Town. Appellants
(By Sri K Shantharaj, Adv., for appellants)
AND:
The Managing Director,
KSRTC,
Shanthinagar,
K H Road,
Bangalore-560 027. Respondent
(By Sri F S Dabali, Adv. for respondent)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, against the judgment
and award dated 31.1.2012 made in MVC No.525/2011 on the
file of Presiding Officer, Fast Track Court-II, Tumkur, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This Appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
Appellants/claimants are before this Court challenging the judgment and award dated 31.1.2012 made in MVC No.525/2011 on the file of Presiding Officer, Fast Track Court-II, at Tumkur.
2. Learned Counsel for the respondent submits that the Tribunal erred in fixing income of the deceased at `4,000/- per month though according to Ex.P11, he was working as security guard and getting salary of `3,395/- per month. He also submits that since claimant Nos.2 and 3 are major sons, the Tribunal should have deducted 1/3 rd instead of 1/4th towards personal expenses of the deceased. He further submits that the 3 Tribunal is justified in holding that there was a 25% contributory negligence on the part of the deceased-Thimmarayappa and there is no merit in the Appeal.
3. In view of the arguments addressed by the learned Counsel for the parties, I formulate the following points for consideration:
(i) Whether the Tribunal is justified in holding that there was a contributory negligence on the part of the deceased-
Thimmarayappa to the extent of 25% ?
(ii) Whether the Tribunal has awarded adequate compensation ?
(iii) What order ?
Point No.(i):
It is the case of the claimant that the deceased was 65 years old, working as a Security Guard and also agriculturist 4 and earning `8,000/- per month and on 27.1.2011 at about 9.00 pm, when he was proceeding on the left side of NH-4 near Joss Tolegate at Tumkur, to have his lunch in a Hotel, KSRTC bus bearing registration No.KA-40-F-288 came in a rash and negligent manner from behind and dashed against him and as a result of which he sustained fatal injuries. He was admitted to District Hospital at Tumkur and then to NIMHANS at Bangalore, where he died. The claim petition was filed by wife and children of the deceased under Section 166 of the Motor Vehicles Act against the KSRTC seeking compensation of `10 lakhs. The respondent/KSRTC entered appearance and filed written statement denying the averments of the claim petition and sought for dismissal of the same. It is also contended that there was no fault on the part of the driver of the bus; the accident occurred on the National Highway-4 in front of Joss Tolegate while crossing the road though it was not permissible.
In support of the case of the claimants, the wife of the deceased got herself examined as P.W-1 besides examining one Siddappa (P.W-2) as an eye witness and got marked Exs.P1 to P11. In rebuttal, the driver of the KSRTC bus was examined as R.W-1. 5 Ex.P8/charge sheet was laid against driver of the bus. Merely because it is a National Highway, the contention taken by the KSRTC that the deceased should not have attempted to cross the road and the Tribunal fixing contributory negligence at 25% on the part of the deceased is not correct.
It is pertinent to mention that the self serving testimony of driver of the bus, who got himself examined as R.W-1 cannot be accepted and acted upon unless the same is corroborated by an independent witness. It is the duty of the driver of motor vehicle to drive the vehicle slowly and cautiously when children, aged people and animals are on the road. In the instant case, there is no material placed on record to show that the driver of the bus has taken all care and caution to avoid accident. The deceased was 65 years old. Under such circumstances, the Tribunal erred in fixing contributory negligence on the part of the deceased to the extent of 25%. Therefore, the finding recorded by the Tribunal on issue No.2 calls for interference.
Accordingly, I answer point No.1 in favour of the 6 appellants/claimants and against the respondent.
Point No.(ii):
It is the case of the claimant that the deceased was working as a Security Guard in a College. As per Ex.P11, the certificate issued by Metro Professional Services Pvt. Ltd., the net salary was `3,395/-. Keeping in view the wage structure of a Security Guard in the year 2011, the Tribunal could have safely fixed his income at `6,000/- per month instead of `4,000/- per month. The Tribunal has determined compensation as under:
(in `)
(i) Loss of dependency (`3,000/-x12x5) 1,80,000-00
(ii) Transportation charges 5,000-00
(iii) Funeral expenses 3,000-00
---------------
Total 1,88,000-00
----------------
It is pertinent to mention that since the deceased was 65 years old multiplier '7' is applicable. The Tribunal erred in 7 applying multiplier '5' deducting 1/4th instead of 1/3rd of the income towards personal expenses. In my view, if a sum of `2,000/- is deducted out of `6,000/-, loss of dependency comes to `4,000/- per month. In my view, the claimants are entitled for compensation as under:
(in `)
(i) Loss of dependency (`4,000/-x12x7) 3,36,000-00
(ii) Medical expenses 10,000-00
(iii) Transportation of the injured from Tumkur to Bangalore and incidental expenses 10,000-00
(iv) Loss of consortium 10,000-00
(v) Loss of estate 10,000-00
(vi) Transportation of dead body and funeral expenses 10,000-00
---------------
Total 3,86,000-00
---------------
Thus, the claimants are entitled for compensation of
`3,86,000/- as against `1,88,000/-.
4. It is submitted that the respondent/KSRTC has paid a sum of `50,000/- towards exgratia and also paid the compensation as per the impugned award. 8
5. The respondent is entitled to deduct the amount of `50,000/- paid towards exgratia and the amount paid in pursuance of the impugned judgment.
6. In the result, I pass the following order:
Appeal is partly allowed holding that the appellants/claimants are entitled for compensation of `3,86,000/- as against `1,88,000/- awarded by the Tribunal from the respondent/KSRTC along with costs and interest at the rate of 6% per annum from the date of Petition till realisation.
It is needless to say that the exgratia payment of `50,000/- paid to the claimants and the compensation amount paid in pursuance of the impugned judgment shall be deducted and the balance amount shall be deposited by the respondent with the Tribunal within 2 months from today. The entire enhanced compensation amount shall be paid to appellant 9 No.1/wife of the deceased. Out of the enhanced compensation amount, a sum of `1,00,000/- shall be kept in a Fixed Deposit for a period of 5 years, during which period she shall be at liberty to draw periodical interest that accrues on the deposit.
Accordingly, the impugned judgment and award are modified.
Sd/-
Judge Bjs