Bangalore District Court
Smt. N. Sujatha vs Managing Director Ksrtc on 16 September, 2022
KABC020251002018
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Sudeen Kumar D.J.,
B.A., LL.B.,
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.6133/2018
Dated: 16th September 2022
Petitioners 1. Smt. N. Sujatha,
W/o Late V. Shankar,
Aged about 49 years,
2 Kumari S. Ashwini,
D/o Late V. Shankar,
Aged about 26 years,
3. Kumari S. Sowmya,
D/o Late V. Shankar,
Aged about 24 years,
All are residing at No.2,
2nd Main, 4th Cross,
M. Muniyappa Garden,
K.R. Puram, Bengaluru - 36.
(Sri D.S. Lokesh, Advocate)
Vs.
Respondent Managing Director KSRTC,
Karnataka State Road Transport
Corporation Ltd., Bangalore Central
2 (SCCH-16) MVC 6133/2020
Division, K.H. Road, Shanthinagar,
Bengaluru - 560 027.
(Vehicle bearing No.KA-01-F-9215)
(Sri M.S. Shankaragulli, Advocate)
JUDGMENT
This petition is filed under Section 166 of M.V. Act, seeking compensation of Rs.93,65,000/- from respondent on account of death of V. Shankar, husband of petitioner No.1 and father of petitioner No.2 and 3, in Road Traffic Accident.
2. In brief, petition averments are; that on 12-08- 2018 at about 4.30 p.m., V. Shankar was crossing Bengaluru - Mysore road, near Rajarajeshwari Medical College, at that time bus, bearing No.KA-01-F-9215 driven by its driver in a rash and negligent manner, endangering to human life with high speed and dashed against V. Shankar, due to the impact, he sustained grievous injuries and immediately he was shifted to Rajarajeshwari Medical College Hospital, Bengaluru, wherein he died. Earlier to the accident, the deceased was retired railway department employee and getting pension of Rs.18,730/- and also he was working at M/s. Chamundi Enterprises and earning a sum of Rs.15,000/- per month. But, on account of his untimely death, petitioners lost the dependency, love and affection. Hence, this petition for compensation.
3. In brief the objections are that;
3 (SCCH-16) MVC 6133/2020 The respondent denied the petition averments and contended that at the time of alleged accident bus, bearing No.KA-01-F-9215 was coming from Mysore to Bengaluru and when the said bus came in front of Rajarajeshwari Medical College, at that time the deceased who was standing on the above said road divider and he attempted to cross the bus from its front side and in the process he making himself confused and became puzzled and in the process on hearing the sound of the car from the other side and he came across the above said bus and he himself dashed to the said bus on the right side and he invited the accident for himself, the accident took place due to the contributory negligence on the part of the deceased himself and the claim amount claimed is excessive and exorbitant. The respondent prayed for the dismissal of the petition.
4. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that V. Shankar succumbed to the injuries sustained in vehicular accident alleged to have occurred on 12-08-2018 due to the rash and negligent driving of the driver of KSRTC Bus, bearing No.KA-01-F- 9215?
2. Whether the petitioners are entitled to compensation? If so, what is the 4 (SCCH-16) MVC 6133/2020 quantum and from whom?
3. What order or Award?
5. In proof of the petition averments, the first petitioner got herself examined as PW1, examined PW2 and marked documents in Ex.P1 to Ex.P17. Respondent examined its driver and conductor as RW1 and RW2 and got marked Ex.R1 to Ex.R3.
6. Counsel for petitioners filed written arguments. Heard the counsel for respondent. Perused the pleadings, evidences and observations cited; on the basis findings on the issues are as under:
Issue No.1 : Partly in the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
7. Both parties led oral as well as documentary evidences. This is a summary proceedings, so, the sum and substance of the pleadings and evidences are only emphasized. The petitioners need to prove this issue on preponderance of probability as test for proof is preponderance of probability herein. Respondent disputed negligence, it did not dispute the incident, injuries and death and involvement of vehicle. 5 (SCCH-16) MVC 6133/2020
8. Regarding negligence is concerned the petitioners relied on police records viz., FIR, complaint, charge sheet, inquest mahazar, PM report, spot mahazar, sketch and IMV report which are marked in Ex.P1 to P7 and P11. The charge sheet/final report filed by the Kumblagodu Police shows the negligence on the part of the driver of respondent's bus bearing No. KA-01- F-9215. The brief facts of the final report read as follows:
"ದನನನಕ 12-08-2018 ರನದದ ಸನಜಜ ಸದಮನರದ 4.30 ಗನಟಜಯಲಲ ಘನ ನನನಯನಲಯದ ವನನಪಪಗಜ ಸಜಸರದ ಕದನಬಳಗಗಡದ ಪಲಸಸಸ ಠನಣನ ಸರಹದದದ ಮಮಸಗರದ ಬಜನಗಳಗರದ ರಸಜಪ ರನಜರನಜಜಸಶಶರ ಮಡಕಲಸ ಕನಲಜಸಜಸ ಮತದಪ ಹನಸಸಟಲಸ ಮದನಭನಗ ಮಮಸಗರದ ಬಜನಗಳಗರದ ಏಕಮದಖ ರಸಜಪಯ ತರದವನ ಬಳ ಈ ದಜಗಸಷನರಜಗಸಪಣನ ಪಟಟ 12 ರಲಲ ನಮಗದಸರದವ ಆರಜಗಸಪ ಕಜ. ಎಸಸ.ಆರಸ.ಟ.ಸ ಬಸದಸ ನನಬರದ KA-01-F-9215 ನದನ ಮಮಸಗರದ ಕಡಜಯನದ ಬಜನಗಳಗರದ ಕಡಜಗಜ ಬರಲದ ಅತವಜಸಗವನಗ ಅಜನಗರದಕತಜಯನದ ಮನನವ ಪನಪಣಕಜಕ ಹನನವವನಟನಗದವ ರಸತ ಚನಲನಜ ಮನಡಕಜಗನಡದ ಬನದದ ರನಜರನಜಜಸಶಶರ ಮಡಕಲಸ ಕನಲಜಸಜಸ ಮತದಪ ಹನಸಸಟಲಸ ಮದನಭನಗ ರಸಜಪ ದನಟದತಪದದ ಸದಮನರದ 62 ವರರ ವಯಸಸನ ವ. ಶನಕರಸ ರವರಗಜ ಡಕಕ ಹಜಗಡಜಸದದರನದ ವ. ಶನಕರಸ ರವರದ ಡವಜಮಡರಸ ಮಸಲಜ ಬದದ ಪರಣನಮ ವ. ಶನಕರಸ ರವರ ತಲಜಗಜ ತಸವಪವನದ ಪಜಟದಟಬದದದ ರಕಪಗನಯವನಗ ಎಡಕವಯಲಲ ರಕಪಬನದದ ಮತದಪ ಬಲಗನಲದ ಮತದಪ ಎಡತಜಗಡಜಗಜ ಪಜಟದಟಬದದದ ರಕಪಗನಯವನಗದದವರನದನ ಚಕತಜಸಗನಗ ರನಜರನಜಜಸಶಶರ ಆಸಸತಜಪಗಜ ಸಜಸರಸದದದ, ಆಸಸತಜಪಯಲಲ ಚಕತಜಸ ಪಡಜಯದತಪದದ ವ.ಶನಕರಸ ರವರಗಜ ಚಕತಜಸ ಪಲಕನರಯನಗದಜ ಅದಜಸ ದವಸ ಸನಜಜ 5.30 ಗನಟಜಯಲಲ ಮಮತ ಪಟಟರದವವದದ ಆರಜಗಸಪಯ ಮಸಲಜ ಆರಜಗಸಪವವ ದಮಢಪಟಟರದತಪದಜ. 6 (SCCH-16) MVC 6133/2020 ಆದದರನದ ಮಸಲಕನಡ ಆರಜಗಸಪಯ ಮಸಲಜ ಮಸಲಕನಡ ಕಲನ ಅನಶಯ ಹಜಗರಸಲಸಟನಟ ದಜಗಸಷನರಜಗಸಪಣನ ಪಟಟ".
9. The spot mahazar and sketch depict the spot of occurrence. The IMV Report reveals that there was no mechanical defect in the bus. The postmortem report shows the cause of death was head injury. According to the IMV report there was no mechanical defects in the vehicle in the sense the incident was due to the negligence only. Now whose negligence was there is to be analyzed. No independent eyewitness is examined herein. According to the final report the negligence was on the part of the driver of the bus, but the respondent contended the contributory negligence by the deceased. The learned counsel for the respondent drew the attention of this tribunal about the spot draft sketch and spot mahazar; the counsel submitted that, the sketch doesn't show the zebra crossing in the spot, and the mahazar also doesn't show the existence of zebra crossing in the spot of occurrence, thereby it establishes that there was no zebra crossing/pedestrian cross, the deceased tried to cross the road, which was his violation of traffic rules and his negligence as without observing the traffic he entered the road. The respondent examined the driver, who is as good as eyewitness to the incident. In the cross examination of the driver the learned counsel for petitioners suggested that, in the accident spot there is a zebra crossing and the 7 (SCCH-16) MVC 6133/2020 deceased was crossing the road by using this zebra crossing at the time of accident, which came to be denied. The spot mahazar and sketch didn't show existence of such zebra crossing as suggested by the petitioners' counsel, though the counsel suggested so, which fortifies that there was no zebra crossing in the spot of occurrence, the deceased violated the traffic rules and neglected in entering the traffic road. The petitioners relied on the police records in proof of the incident, negligence, death and involvement of vehicle, then the same documents need to be considered for the other side. Accordingly, as per the spot mahazar as well as the sketch with the say of the driver it is clear that there was no zebra crossing/pedestrian cross in the spot of occurrence, the deceased without observing the traffic darted to the road and thereby violated the traffic rules, and he himself also contributed his negligence to the incident. Such being the case, it is the fit case to consider the contributory negligence of the deceased. In view of this circumstance, here is no impediment to believe the police records, which give right impression that due to the negligence of the deceased and the driver the incident occurred. If the driver avoided the bus the incident could not have been occurred or at least lessen the injuries, on the other hand if the deceased could not have neglected the incident could not have occurred or his life could have been saved. It is 8 (SCCH-16) MVC 6133/2020 therefore, the negligence to the incident found on both at 50:50.
10. Wherefore, for the foregoing reasons, it is established that V. Shankar succumbed to the injuries sustained in vehicular accident occurred on 12.08.2018 due to the rash and negligent driving of the driver of respondent's bus bearing No. KA-01-F-9215 and even with the negligence of the deceased. Hence this issue is answered partly in the affirmative.
ISSUE No.2:
11. In determination of this issue avocation, income, age of the deceased, dependency and future prospects and other conventional heads for compensation are need to be ascertained.
Avocation :
It is averred that the deceased was retired railway department employee and getting pension of Rs.18,730/- and also he was working at M/s. Chamundi Enterprises and earning a sum of Rs.15,000/- per month. No evidence is here regarding the deceased was retired employee of the railway department. Likewise, no evidence is here as the petitioner was working at M/s Chamundi Enterprises. Ex.P14 and 16 muster roll and wage slip. As per Ex.P16 in the payment column 9 (SCCH-16) MVC 6133/2020 Rs.15,000/- and Rs.1,36,150/- both came to be mentioned, because of this, as the salary figures are not tallying with each other, this document cannot be considered, as genunity of the same is doubtful. The evidence by PW-2 doesn't help the petitioners.
Accordingly, in the present case the avocation and income of the deceased is taken to be considered notionally.
Income:
As discussed on the head of avocation, the deceased's avocation taken to be considered notionally. In this regard as per the resolution of hon'ble the Karnataka State Legal Service Authority, dated 17-02- 2022 notional income for the year 2018 came to be fixed at 12,500/. In the present case, under the facts and circumstances of the case, Rs.12,500/- is taken to be considered as notional income of the petitioner per month.
Age:
As per Ex.P5 - postmortem report, age of the deceased was 62 years at the time of incident. Hence, it is considered.
Dependency:
As per the petition averments petitioner No.1 is wife, petitioner No.2 is daughter and petitioner No.3 is son of the deceased. The dependency is not in dispute. 10 (SCCH-16) MVC 6133/2020 It is therefore, the petitioners are established to be the dependents of the deceased.
Whereas, for deduction of personal expenses is concerned only 1/3rd is considered to be deducted in the monthly notional income, for the personal and living expenses of the deceased.
Future prospects:
The future prospects is concerned, as the deceased was aged about above 60 years i.e., 62 years at the time of the incident, the petitioners are not entitle for the compensation under future prospects on the monthly notional income of the deceased.
Conventional Heads:
As conventional heads, the deceased being husband of petitioner No.1 spousal consortium and father of petitioner No.2 and 3 parental consortium are to be considered as the petitioners suffered the loss of love and affection. Hence, in view of the observations made, in the case of United India Insurance Co. Ltd., vs. Satinder Kaur @ Satwinder Kaur and others, in civil Appeal No.2705/2020, by hon'ble the Apex Court, Rs.40,000/- each is considered to be awarded as compensation for consortium respectively. The loss of estate is concerned, as the deceased was with the family, if the incident could not have been occurred, he could have been contributed more or less from his 11 (SCCH-16) MVC 6133/2020 savings to the estate of the family; the incident caused such loss to the estate of the petitioners. Hence, Rs.15,000/- is need to be awarded on this head as the principle laid down by hon'ble the Apex Court in National Insurance Co. Ltd. vs. Pranay Sethi, and others, reported in AIR 2017 SC 5157. Likewise, for the funeral expenses is concerned awarding of Rs.15,000/- is also just under the conventional head as observed by hon'ble the Apex Court. Hence, it is considered to be awarded.
12. Accordingly, compensation is calculated as under;
Monthly notional income is Rs.12,500/-. Future prospects is not applicable.
For personal and living expenses, after the deduction of 1/3rd the total monthly notional income is Rs. 8,333/-.
Net monthly notional income being Rs.8,333/- it is calculated to net annual notional income as Rs.8,333/- x 12 which is = Rs.99,996/-.
Multiplier is 7.
Net annual notional income is multiplied by multiplier 7 which is as Rs.99,996/- x 7 = Rs.6,99,972/-.
13. So, compensation for loss of dependency is found at Rs.6,99,972/- plus compensation on conventional heads, such as spousal and parental consortium, loss of estate and funeral expenses. 12 (SCCH-16) MVC 6133/2020
14. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 6,99,972-00
2. Loss of spousal and Rs. 1,20,000-00
parental consortium
3. Loss of estate Rs. 15,000-00
4. Funeral expenses Rs. 15,000-00
Total Rs. 8,49,972-00
15. Out of the total compensation 50% should be borne by the petitioners themselves on contributory negligence by the deceased. So that, the petitioners are only entitled for compensation of Rs.4,24,986/-, which can be rounded off to Rs.4,25,000/-, which is of 50% of total compensation only. Keeping in view the interest on the savings by the nationalized banks as well as provided under Section 34 of the CPC, in the present case, from the date of petition only the interest at 6% per annum is considered to be directed till its realization. So, the petitioners are entitled to the interest at 6% per annum on 50% of compensation amount.
Liability:
16. It is admitted fact that the respondent is the owner of KSRTC Bus, bearing No.KA-01-F-9215. The 13 (SCCH-16) MVC 6133/2020 accident occurred even due to negligence of its driver and as such, it is the respondent who is actually liable to pay applicable compensation as there is no insurance. The petitioners are only entitled to such compensation and not fully as claimed for. Accordingly, this point stands answered partly in the affirmative.
ISSUE No.3:
17. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
Petitioners are entitled to compensation of Rs.4,25,000/- (Rupees four lakhs and twenty five thousand only) with interest at the rate of 6% p.a., from the date of petition till realisation.
Respondent is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Wife 50% Petitioner No.2 - Daughter 25% Petitioner No.3 - Daughter 25% 14 (SCCH-16) MVC 6133/2020 The entire compensation amount with proportionate interest awarded to petitioner No.1 to 3 shall be released to them through E-payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-.
Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 16th day of September 2022) (Sudeen Kumar D.J.) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. N. Sujatha PW2 Sri Chowdappa
Documents marked on behalf of petitioners:
Ex.P1 FIR Ex.P2 Complaint Ex.P3 Charge Sheet Ex.P4 Inquest Mahazar Ex.P5 Postmortem Report Ex.P6 Spot Mahazar Ex.P7 Sketch Ex.P8 Order Sheet of CC 1315/2019 Ex.P9 Notice U/Sec. 133 of MV Act Ex.P10 Reply to Notice Ex.P11 IMV Report Ex.P12 Duty Certificate Ex.P13 Death Certificate Ex.P14 Certified copy of the Muster Roll cum 15 (SCCH-16) MVC 6133/2020 Register of Wages Ex.P15 Loan Account Statement Ex.P16 4 Wages Slips Ex.P17 Acknowledgment Slip
Witnesses examined on behalf of respondents:
RW1 Sri M. Kumar RW2 Sri Umeshappa
Documents marked on behalf of the respondents:
Ex.R1 Complaint
Ex.R2 Endorsement
Ex.R3 Postal Envelope
(Sudeen Kumar D.J.)
Member, MACT, Bengaluru.