Karnataka High Court
The Managing Director vs Smt P Nandini on 9 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 1388, 2019 (1) AKR 235, (2019) 3 KCCR 2249
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 9234/2015 (MV)
C/W
M.F.A. NOS. 9235/2015 (MV), 9236/2015(MV),
9237/2015 (MV) & 9238/2015(MV)
IN M.F.A. NO. 9234/2015:
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT
CORPORATION (KSRTC)
K.H.ROAD, SHANTHINAGAR,
BENGALURU-560 027
REPRESENTED BY ITS
CHIEF LAW OFFICER
... APPELLANT
(BY SRI. F S DABALI, ADVOCATE)
AND:
1. SMT P NANDINI
W/O CHOWDAPPA,
AGED ABOUT 29 YEARS,
2. MASTER C.CHARAN
S/O CHOWDAPPA,
AGED ABOUT 9 YEARS,
3. KUMARI CHARLIK
D/O CHOWDAPPA,
AGED ABOUT 4 YEARS,
2
4. SRI CHIKKARAMANNA
S/O LATE CHANNARAYAPPA,
AGED ABOUT 63 YEARS,
RESPONDENT NO.2&3 ARE MINORS,
REPRESENTED BY THEIR MOTHER
1ST RESPONDENT/NATURAL GUARDIAN
RESPONDENT NO. 1 TO 4 ARE
RESIDING AT YENNUR VILLAGE,
CHEEMANGALA POST,
JAGAMAKOTE HOBLI,
SIDLAGATTA TALUK,
CHIKKABALLAPUR DISTRICT-562 105.
5. MICHAEL
S/O LAZAR, ARE MAJOR,
NO.KG-159,
SITUATED AT II PHASE,
1ST STAGE,HENNUR,
BELLARY ROAD, K.R.PURAM,
BENGALURU-560 036.
6. THE MANAGER
IFFCO TOKIO GENERAL
INSURANCE CO. LTD.,
REG.OFFICE NO.141,
SHANTHI TOWERS, IV MAIN,
4TH CROSS, NGEF LAYOUT,
KASTURBHANAGAR, BENGALURU-560 016
(POLICY NO.80689062 FROM
17.07.2012 TO 16.07.2013)
... RESPONDENTS
(BY SRI.N GOPALAKRISHNA, ADVOCATE FOR R1 & 4;
SRI. E I SANMATHI, ADVOCATE FOR R6;
R2 & 3 ARE MINORS, REPRESENTED BY R1;
NOTICE TO R5 ACCEPTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN
MVC NO.7882/2012 ON THE FILE OF THE XIII ADDL
SMALL CAUSES JUDGE AND MEMBER MACT,
BENGALURU, AWARDING THE COMPENSATION AMOUNT
OF RS 18,85,000/- TOGETHER WITH INTEREST AT 8%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
3
IN M.F.A. NO. 9235/2015:
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT
CORPORATION (KSRTC)
K H ROAD, SHANTHINAGAR,
BENGALURU-560027
REPRESENTED BY ITS
CHIEF LAW OFFICER
... APPELLANT
(BY SRI. F S DABALI, ADVOCATE)
AND:
1. SRI MURALIDARA P M
S/O MUNISWAMY SHETTY ,
AGED ABOUT 23 YEARS,
R/O PERJENAHALLI VILLAGE,
VEMGHAL HOBLI,
KOLAR TALUK & DISTRICT-563101
2. MICHAEL
S/O LAZAR, AGE-MAJOR,
NO.KG-159,
SITUATED AT II PHASE
1ST STAGE, HENNUR, BELLARY ROAD,
K R PURAM, BENGALURU-560036
3. THE MANAGER
IFFCO TOKIO GENERAL
INSURANCE CO LTD
REG OFFICE NO.141,
SHANTHI TOWERS,
IV MAIN, 4TH CROSS
NGEF LAYOUT,KASTURBHANAGAR,
BENGALURU-560016
(POLICY NO.80689062 FROM
17.07.2012 TO 16.07.2013)
... RESPONDENTS
(BY SRI. N GOPALKRISHNA, ADVOCATE FOR R1;
SRI. E I SANMATHI, ADVOCATE FOR R3;
R2 HELD SUFFICIENT)
4
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN
MVC NO.7885/2012 ON THE FILE OF THE XIII ADDL.
SMALL CAUSE JUDGE AND MEMBER MACT,
BENGALURU. PETITIONER IS ENTITLED FOR
COMPENSATION OF RS 14,74,000/- WITH INTEREST A
THE RATE OF 8% P.A ON RS 13,74,000/- (EXCLUDING
FUTURE MEDICAL EXPENSES).
IN M.F.A. NO. 9236/2015:
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, (KSRTC)
K.H. ROAD,
SHANTHINAGAR,
BENGALURU-560027
REPRESENTED BY ITS
CHIEF LAW OFFICER
... APPELLANT
(BY SRI. F S DABALI, ADVOCATE)
AND:
1. SRI M S SRINIVASA
S/O LATE MUNIRAJAPPA,
AGED ABOUT 30 YEARS,
R/AT NANDAGUDI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT-562114
2. MICHAEL
S/O LAZAR
AGE-MAJOR,
SITUATED AT II PHASE
1ST STAGE,
HENNUR, BELLARY RAOD,
K R PURAM,
BENGALURU-560036
5
3. THE MANAGER
IFFCO TOKIO GENERAL
INSURANCE CO LTD.,
REG OFFICE NO.141,
SHANTHI TOWERS,
IV MAIN, 4TH CROSS
NGEF LAYOUT,
KASTURBHANAGAR
BENGALURU-560016
(POLICY NO.80689062 FROM
17.07.2012 TO 16.07.2013)
... RESPONDENTS
(BY SRI. N GOPAL KRISHNA, ADVOCATE FOR R1;
SRI. D S SRIDHAR, ADVOCATE FOR R3;
VIDE ORDER DATED 25/07/2017,
R2 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN
MVC NO.340/2013 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSE JUDGE AND COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.2,33,000/- WITH
INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
IN M.F.A. NO. 9237/2015:
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD
TRANSPORT CORPORATION (KSRTC)
K.H. ROAD, SHANTHINGAR,
BENGALURU-27
REP BY ITS CHIEF LAW OFFICER
... APPELLANT
(BY SRI. F S DABALI, ADVOCATE)
6
AND:
1. SMT KAMAR TAJ
@ HAMAR TAJ
W/O LATE SYED USMAN
AGED ABOUT 47 YEARS
R/AT SIDDANAHALLI VILLAGE,
NELAVAGILU POST, NANDAGUDI HOBLI
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562114
2. MICHAEL
S/O LAZAR, AGE: MAJOR
NO.KG-159
SITUATED AT II PHASE,
1ST STAGE, HENNUR, BELLARY ROAD,
K.R.PURAM, BENGALURU-36
3. THE MANAGER
IFFCO TOKIO GENERAL
INSURANCE CO. LTD.
REG.OFFICE NO.141,
SHANTHI TOWERS, IV MAIN,
4TH CROSS, NGEF LAYOUT,
KASTURIBANAGAR
BENGALURU-16
(POLICY NO.80689062 FROM
17.07.2012 TO 16.07.2013)
... RESPONDENTS
(BY SRI. SRI. N GOPALKRISHNA, ADVOCATE FOR R1;
SRI. E I SANMATHI, ADVOCATE FOR R3;
R2 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN
MVC NO.384/2013 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSE JUDGE AND COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.1,96,000/- WITH
INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
7
IN M.F.A. NO. 9238/2015:
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, (KSRTC)
K H ROAD, SHANTHINAGAR,
BENGALURU-560027
REPRESENTED BY ITS
CHIEF LAW OFFICER
... APPELLANT
(BY SRI. F S DABALI, ADVOCATE)
AND:
1. SRI N VENKATASWAMY
S/O NARAYANAPPA,
AGED ABOUT 32 YEARS,
R/O KAMBADAHALLI VILLAGE,
SIDLAGATTA TALUK,
CHIKKABALLAPUR DISTRICT-562105
2. MICHAEL
S/O LAZAR, AGE-MAJOR
NO.KG-159,
SITUATED AT II PHASE , 1ST STAGE,
HENNUR, BELLARY ROAD,
K R PURAM,
BENAGLURU-560036
3. THE MANAGER
IFFCO TOKIO GENERAL
INSURANCE CO LTD
REG OFFICE NO.141,
SHANTHI TOWERS,
IV MAIN, 4TH CROSS
NGEF LAYOUT, KASTURBHANAGAR
BENGALURU-560016
(POLICY NO.80689062 FROM
17.07.2012 TO 16.07.2013)
... RESPONDENTS
(BY SRI. SRI. N GOPALKRISHNA, ADVOCATE FOR R1;
SRI. E I SANMATHI, ADVOCATE FOR R3;
NOTICE TO R2 HELD SUFFICIENT)
8
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN
MVC NO.916/2013 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSE JUDGE AND COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.2,28,000/- WITH
INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These appeals in M.F.A. Nos. 9234/2015, 9235/2015, 9236/2015, 9237/2015 and 9238/2015 by the K.S.R.T.C. management challenge the judgment and award dated 30.07.2015 made by M.A.C.T., Bengaluru (SSCH-15) allowing M.V.C.Nos.7882/2012, M.V.C. No.7885/2012, M.V.C.No.340/2013, M.V.C.No.384/2013 and M.V.C.No.916/2013, whereby varying sums of compensation have been awarded with interest at the rate of 8% with usual conditions of bank deposit.
2. The brief facts stated are :
a) On 03.12.2012 the K.S.R.T.C. bus bearing Registration No.KA-07-F-1440 and a private mini transport bus bearing registration No.KA-13 -B-4545 had a head-on collision on Hoskote -Chintamani Main Road near 9 Karapanahalli Gate, Nandagudi Hobli. This resulted into fatal injuries to 12 persons and grievous injuries to 7. The accident resulted into multiple claim petitions being filed before different M.A.C.Ts. in Bengaluru by the L.Rs. of the deceased and by the injured. The same were resisted by the K.S.R.T.C. and by the insurer of the mini bus by filing Written Statements.
b) On the basis of the pleadings of the parties and the evidentiary material on record, the different M.A.C.Ts. have rendered the judgments and the awards holding that the exclusive negligence lies with the K.S.R.T.C. bus driver and therefore the exclusive liability was imposed upon the K.S.R.T.C., which has put the same in challenge on the ground of composite negligence and on the ground of award of excessive compensation.
3. Learned panel counsel for the K.S.R.T.C. vehemently contends that the very same accident had resulted into multiple claim petitions being filed before different M.A.C.Ts at Bengaluru; in the impugned judgment passed by one M.A.C.T., the liability is entirely fastened on the K.S.R.T.C. whereas other M.A.C.Ts. which tried other claim petitions have apportioned the liability in the ratio of 50:50 and in two 10 other cases in the ratio of 40:60 between the K.S.R.T.C. and the insurer of mini bus; regardless of applicability of doctrine of res judicata, imposition of varying liability on the very same vehicle does not sound logical and therefore there has to be a fair treatment of the plea of composite negligence afresh on the basis of the evidentiary material borne out by record.
4. Secondly, the learned counsel submits that the compensation has been awarded on the higher side and so also is the rate of interest. So arguing, the counsel seeks that the impugned judgment and awards have to be set aside as against the appellant K.S.R.T.C. holding the respondent insurer of the offending vehicle ie., the mini bus, exclusively liable. In support of his claim he banks upon the judgment dated 26.03.2018 rendered by a Co-ordinate Bench of this Court in M.F.A.No.7015/2015 and connected appeals that admittedly arose from the accident in question.
5. The learned counsel for the respondent insurer of the offending mini bus, per contra, submits that although these multiple claim petitions arose from one common accident, still there may be different findings by different M.A.C.Ts. in different petitions depending upon the nature, quantum and 11 quality of evidence tendered by the parties therein, and therefore no offence is done to any principle of law and much to the principle of res judicata, more particularly, when parties are not same in each of the claim petitions. He further submits that the M.A.C.Ts. have adjudged the evidentiary material in their wisdom and have recorded the finding as to exclusive liability of the K.S.R.T.C. and the same does not call for interference at the hands of this Court.
6. The learned counsel for the claimants made submissions in justification of the award, although he maintained equidistance from the contentions of the K.S.R.T.C. and the insurer of the mini bus, presumably on the ground that the apportionment of liability between these two offending vehicles will not in any way prejudice the interest of the claimants, inasmuch as the liability of the tortfeassors is always joint and several.
7. I have heard the learned counsel for the K.S.R.T.C., the learned counsel for the respondent insurer of the mini bus and the learned counsel for the claimants. I have perused the appeal papers as well.
12
8. The contention seeking levy of exclusive liability on the respondent insurer of the offending mini bus does not merit acceptance since in other cases arising from the very same accident, a Co-ordinate Bench of this Court in M.F.A. No.7015/2015 and connected appeals, has recorded a finding of composite negligence between the K.S.R.T.C. and the mini bus in the ratio of 60:40. Regardless of invocability of res judicata, this judgment constitutes an important piece of evidence to be taken note of, along with other evidentiary material on record. Therefore in these appeals too, the liability is to be apportioned between the said vehicles in the same ratio.
9. The next contention of the learned panel counsel for K.S.R.T.C. that in M.F.A. No.9234/2015 arising out of M.V.C.No.7882/2012, the M.A.C.T. has taken Rs.6,000/- to be the income of the deceased and this is much on the higher side, does not have force, since even the Notional Income Chart of the Lok Adalat for the accident year in question mentions Rs.7,000/- to be the monthly income. Secondly, despite availability of evidentiary material, for Rs.7,885/- as the gross salary, the Tribunal has taken only Rs.6,000/- which cannot be faltered at all. However, the 13 contention that under the conventional heads, the M.A.C.T. could not have awarded Rs.4,70,000/-, has much force. Therefore the said compensation stands scaled down to Rs.70,000/-, in view of Apex Court decision in the case of "National Insurance Company vs. Pranay Sethi and others" reported in AIR 2017 SC 5157.
10. The contention of the K.S.R.T.C. that the deceased was not in the public employment and that he was in the private employment and therefore more than 40% addition could not have been made even to the established income of the deceased, has also force. The security of tenure of the persons in the public employment is ordinarily assured unlike in employment in private sector, where the policy of 'hire & fire' still obtains subject to certain exceptions. Therefore the additional value is taken at 40%.
11. The next contention that the M.A.C.T. could not have awarded compensation under the heads 'loss of consortium', 'love & affection' and 'loss of estate', each in a sum of Rs.1,50,000/- and, Rs.20,000/- towards transportation of dead body and funeral expenses, is also well founded inasmuch as, all these are covered under the "conventional heads" for which, ordinarily the award cannot exceed 14 Rs.70,000/- going by the ratio of Pranay Sethi Case. Therefore the compensation awarded under these heads in all, totalling to Rs.4,70,000/- has been brought down to Rs.70,000/- only.
12. In view of the altered figures, the compensation in M.F.A. No.9234/2015 arising out of M.V.C. No.7882/2012 is re-worked out with the aid of memo of calculation furnished at the Bar, as under:
"Income at Rs.6,000/-p.m. Adding 40% for future prospects comes to Rs.2,400/-
6000+2400 = 8400 X 12 X 15 X 3/4
1.Loss of dependency : Rs.11,34,000-00
2. Conventional heads : Rs. 70,000-00
3. Medical expenditure : Rs. 2,00,000-00
---------------------
Total : Rs.14,04,000-00
---------------------
13. In the above facts and circumstances, the appeal in M.F.A. No.9234/2015 succeeds in part; the impugned judgment and award are modified, reducing the compensation from Rs.18,85,000/- to Rs.14,04,000/- only with interest at the rate of 6% per annum; the award liability has to be shared between the appellant-K.S.R.T.C. 15 and the respondent-insurer of the mini bus in the ratio of 60:40.
Order in M.F.A. No.9235/2015
14. The only contention of the panel counsel for the K.S.R.T.C. in M.F.A. No.9235/2015 that the compensation awarded under the heads 'for ugly scar' and 'permanent physical disablement' totaling to Rs.2,25,000/- being wrongly awarded by the Tribunal is substantiated. Therefore the compensation awarded under these heads is set at naught.
Consequently, the appeal is allowed in part; the impugned judgment and award are modified reducing the compensation from Rs.14,74,000/- to Rs.12,49,000/- with interest at the rate of 6% per annum.
Order in M.F.A. No.9236/2015
15. In this appeal which arises from M.V.C.No.340/2013, the Tribunal could not have awarded a compensation of Rs.30,000/- under the head 'permanent physical disablement' and therefore the same is set at naught.
Accordingly, the appeal is allowed in part; the judgment and award are modified reducing the 16 compensation from Rs.2,32,760/- to Rs.2,02,760/- with interest at the rate of 6%.
Order in M.F.A. No.9237/2015
16. In this appeal arising out of M.V.C.No.384/2013, the M.A.C.T. could not have awarded the compensation of Rs.30,000/- under the head 'permanent physical impairment'.
Accordingly, the appeal is allowed in part; the impugned judgment and award are modified reducing the compensation from Rs.1,96,000/- to Rs.1,66,000/- with interest at the rate of 6% per annum.
Order in M.F.A. No.9238/2015
17. In this appeal arising out of M.V.C.No.916/2013, the M.A.C.T. could not have awarded the compensation of Rs.30,000/- under the head 'permanent physical impairment'.
Accordingly, the appeal is allowed in part; the impugned judgment and award are modified reducing the compensation from Rs.2,28,000/- to Rs.1,98,000/- with interest at the rate of 6% per annum.
18. In all the above appeals, it is open to the claimants- awardees to put the award in execution either against the 17 appellant K.S.R.T.C. or against the respondent insurer or against both of them since the liability is joint and several However, that award-debtor, who discharges the liability in excess of the ratio of apportionment of 60:40 mentioned above, will be entitled to contribution from the other award- debtor, by executing this judgment and order of this Court.
19. The amount in deposit in all these appeals along with Lower Court Records shall be transmitted to the jurisdictional M.A.C.T. for disbursal as compensation to the claimants concerned and/or by way of refund of the residue to the appellants.
Sd/-
JUDGE Snb/