Karnataka High Court
The Divisional Manager, vs Maya W/O Gajanan Sonunse, on 27 April, 2019
Author: G.Narendar
Bench: G.Narendar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF APRIL, 2019
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
MFA CROB NO.100057/2017
C/W.
MFA NO.101519/2017, MFA NO.102126/2015,
MFA NO.101869/2015 AND MFA NO.100846/2015 (MV)
IN MFA CROB No.100057/2017
BETWEEN:
1. SMT. SARASWATI W/O DAGADA UGRASENAREDDY
AGE: 34 YEARS, OCC: HOUSEHOLD,
2. KUMARI PRAVALIKA D/O DAGADA
UGRASENAREDDY,
AGE: 16 YEARS, OCC: STUDENT,
3. KUMAR BHARTHNATHREDDY
S/O DAGADA UGRASENAREDDY,
AGE: 13 YEARS, OCC: STUDENT,
4. CHINAMMA W/O DAGADA PULLAREDDY
AGE: 64 YEARS, OCC: NIL,
ALL ARE R/O C.B. ROAD, TADAPATRI,
DIST: ANANTHPUR, STATE: ANDRAPRADESH
SINCE CROSS OBJECTOR NO.2 & 3 ARE MINORS
2
REPRESENTED BY M/G MOTHER I.E.,
CROSS OBJECTOR NO.1
... CROSS OBJECTORS
(BY SRI. G. S. HULMANI, ADV.)
AND:
1. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED,
1ST FLOOR JANARDHANA ARCADE,
OPP. TO DENA BANK, NEAR JUBILEE CIRCLE,
P.B. ROAD, DHARWAD.
2. MANAGING DIRECTOR
N.W.K.R.T.C., CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI.
3. THE BRANCH MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
TAKAI TOWER, I FLOOR, R F ROAD,
SRITANTAM CIRCLE, ANANTHPUR
STATE, ANDRAPRADESH.
...RESPONDENTS
(BY SRI. G N RAICHUR, ADV. FOR R1,
SRI I.C.PATIL, ADV., FOR R2;
SRI S.K.KAYAKAMATH, ADV., FOR R3)
MFA CROB FILED U/R ORDER XLI RULE 22 OF CPC,
AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017
PASSED IN MVC NO.60/2013 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, GADAG,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
3
IN MFA NO.101519/2017
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED,
IST FLOOR JANARDHANA ARCADE,
OPP TO DENA BANK NEAR JUBLIE CIRCLE,
P.B. ROAD, DHARWAD.
POLICY NO. OG-1201807-1803-00001560
VALID FROM 29.03.2012 TO 28.03.2013
REPRESENTED BY THE
AUTHORISED SIGNATORY.
... APPELLANT
(BY SRI. G. N. RAICHUR, ADV.)
AND:
1. SARASWATI W/O. DAGADA UGRASENAREDDY,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: C.B. ROAD TADAPATRI,
DIST: ANANTHAPUR,
STATE ANDRAPRADESH.
2. KUMARI PRAVALIKA
D/O. DAGADA UGRASENAREDDY,
AGE: 16 YEARS, OCC: STUDENT,
R/O: C.B. ROAD TADAPATRI,
DIST: ANANTHAPUR,
STATE ANDRAPRADESH.
3. KUMAR BHARNATHREDDY
S/O. DAGADA UGRASENAREDDY,
AGE: 13 YEARS, OCC: STUDENT,
R/O: C.B. ROAD, TADAPATRI,
DIST: ANANTHAPUR,
STATE ANDRAPRADESH.
(RESPONDENT NO. 2 AND 3 ARE MINORS
THEY ARE REPTD BY N/G NATURAL
MOTHER I.E. PET. NO.1.
4
4. CHINAMMA
W/O.DAGADA PULLAREDDY,
AGE: 64 YEARS, OCC: NIL,
R/O: C.B. ROAD TADAPATRI,
DIST: ANANTHAPUR,
STATE ANDRAPRADESH.
5. MANAGING DIRECTOR
N.W.K.R.T.C CENTRAL OFFICE
GOKUL ROAD, HUBBALLI.
4. THE BRANCH MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
TAKAI TOWER, I FLOOR, RF ROAD,
SRITANTAM CIRCLE, ANANTHPUR,
STATE ANDRAPRADESH
POLICY NO. OG-12-1807-1803-00001560
VALID FROM 29.3.2012 TO 28.03.2013.
...RESPONDENTS
(BY SRI. GIRISH S. HULMANI, ADV. FOR C/R1 TO R4,
SRI I.C.PATIL, ADV. FOR R5;
SRI S.K.KAYAKAMATH, ADV. FOR R6)
MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017
PASSED IN MVC NO.60/2013 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, GADAG,
AWARDING COMPENSATION OF Rs.21,35,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
ITS REALISATION.
IN MFA NO.102126/2015 (MV)
BETWEEN:
THE SENIOR DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED
5
IST FLOOR JANARDHANA ARCADE,
OPP TO DENA BANK, NEAR JUBILE CIRCLE,
P.B. ROAD, DHARWAD
POLICY NUMBER 471100/31/2030/5952
VALID FROM 26/11/2012 TO 25/11/2013
REPRESENTED BY THE DEPUTY MANAGER
THE ORIENTAL INSURANCE COMP LTD.,
REGIONAL OFFICE SUMNGALA COMPLEX
LAMINGTON ROAD, HUBBALLI-580020.
... APPELLANT
(BY SRI. G.N. RAICHUR, ADV.)
AND:
1. SMT. SHASHIKALA W/O MALLAPPA MALAWAD
AGE: 34 YEARS, OCC. HOUSEHOLD
R/O:CHIKKAMANNUR, TQ. RON,
DIST.: GADAG.
2. PRAVEEN S/O MALLAPPA MALAWAD
AGE:19 YEARS, OCC. STUDENT
R/O CHIKKAMANNUR TQ. RON,
DIST. GADAG.
3. PRAMOD S/O MALAPPA MALAWAD
AGE:17 YEARS, OCC. STUDENT
4. PRASHANT S/O MALLAPPA MALAWAD
AGE:09 YEARS, OCC. STUDENT
RESPONDENT NO.3 AND 4 ARE MINORS
R/BY THEIR NEXT FRIEND AND M/G
SMT. SHASHIKALA W/O MALAPPA MALAWAD
AGE:33 YEARS, OCC. HOUSEHOLD
R/O CHIKKAMANNUR TQ. RON,
DIST. GADAG.
5. SATYAVVA W/O SANGAPPA MALAWAD
AGE:67 YEARS, OCC. HOUSEHOLD
R/O CHIKKAMANNUR, TQ. RON,
DIST. GADAG
6
6. SANGAPPA S/O MALLAPPA MALAWAD
AGE: 70 YEARS, OCC.:HOUSEHOLD
R/O CHIKKAMANNUR, TQ. RON,
DIST. GADAG.
7. MANAGING DIRECTOR
KSRTC. K.H. ROAD,
BENGALURU-27.
8. MANAGING DIRECTOR
NWKSRTC CENTRAL OFFICE
GOKUL ROAD, HUBBALLI.
...RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADV. FOR R1,
R2, R5 & R6;
R3 & R4 ARE MINORS REPTD. BY R1;
SRI I.C. PATIL, ADV., FOR R7 & R8)
MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 27.10.2014 PASSED IN
MVC NO.28/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER ADDITIONAL MOTOR VEHICLE
ACCIDENT CLAIMS TRIBUNAL, RON, AWARDING THE
COMPENSATION OF RS.33,30,479/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF REALIZATION.
MFA NO.101869/2015 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD
IST FLOOR JANARDHANA ARCADE,
OPP TO DENA BANK, NEAR JUBLIE CIRCLE,
P.B. ROAD, DHARWAD
REPRESENTED BY THE DEPUTY MANAGER,
7
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUMNGALA
COMPLEX, LAMINGTON ROAD,
HUBBALLI-580 020.
... APPELLANT
(BY SRI. G N RAICHUR, ADV..)
AND:
1. SMT. MAYA W/O GAJANAN SONUNSE,
AGE:48 YEARS, OCC: HOUSEHOLD,
R/O: C.WING FLAT NO. 11 SMURTI GARDEN
NEAR KIRANA COLONY, VIJAYANAGAR,
KALEWADI, PUNE-411017,
STATE: MAHARASHTRA.
2. KUMAR. ABHIJIT S/O GAJANAN SONUNSE,
AGE:24 YEARS, OCC:STUDENT,
R/O: C.WING FLAT NO.11,
SMURTI GARDEN, NEAR KIRANA COLONY,
VIJAYANAGAR KALEWADI, PUNE-411017,
STATE:MAHARASHTRA.
3. KUMARI. DIVYA D/O GAJANAN SONUNSE,
AGE:18 YEARS, OCC:STUDENT,
R/O: C.WING FLAT NO.11, SMURTI GARDEN
NEAR KIRANA COLONY, VIJAYANAGAR
KALEWADI, PUNE-411017,
STATE:MAHARASHTRA
4. KISHAN S/O HARIBHAU SONUNSE,
AGE:79 YEARS, OCC:NIL,
R/O: C.WING FLAT NO. 11, SMURTI GARDEN
NEAR KIRANA COLONY, VIJAYANAGAR
KALEWADI, PUNE-411017,
STATE:MAHARASHTRA
5. MANAGING DIRECTOR,
N.W.K.R.T.C CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI.
8
...RESPONDENTS
(BY SRI. G S HULMANI, ADV. FOR C/R1-R3
(CP No.20141/15) & R4;
SRI I.C.PATIL, ADV., FOR R5)
MFA IS FILED U/S.173(1) OF MV ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.12.2014, PASSED IN
MVC.NO.369/2013, ON THE FILE OF THE FIRST
ADDITIONAL SENIOR CIVIL JUDGE AND CIVIL JUDICIAL
MAGISTRATE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, DHARWAD, AWARDING
COMPENSATION OF Rs.98,36,911/- FROM RESPONDENTS
NO.1 AND 2 ALONG WITH INTEREST AT THE RATE OF 6%
P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
MFA NO.100846/2015 (MV)
BETWEEN:
1. SMT. MAYA W/O GAJANAN SONUNSE,
AGE:48 YEARS, OCC:HOUSEHOLD,
2. KUMAR. ABHIJIT S/O GAJANAN SONUNSE,
AGE:24 YEARS, OCC:STUDENT,
3. KUMARI. DIVYA D/O GAJANAN SONUNSE,
AGE:17 YEARS, OCC:STUDENT,
4. SRI KISHAN S/O HARIBHAU SONUNSE,
AGE:79 YEARS, OCC:NIL,
APPELLANT NO.3 IS MINOR AS SUCH SHE IS
REP. BY M/G NATURAL MOTHER I.E.,
APPELLANT NO.1
9
ALL THE APPELLANTS ARE
R/O: C.WING FLAT NO. 11, SMURTI GARDEN
NEAR KIRANA COLONY, VIJAYA NAGAR,
KALEWADI, PUNE-411017,
STATE:MAHARASHTRA.
... APPELLANTS
(BY SRI. GIRISH S. HULMANI, ADV.)
AND:
1. MANAGING DIRECTOR,
N.W.K.R.T.C CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD
IST FLOOR, JANARDHANA ARCADE,
OPP TO DENA BANK, NEAR JUBLIE CIRCLE
P.B. ROAD, DHARWAD-580001.
...RESPONDENTS
(BY SRI. I.C.PATIL, ADV. FOR R1;
SRI G.N.RAICHUR, ADV., FOR R2)
MFA IS FILED U/S.173(1) OF MV ACT,1988, AGAINST
THE JUDGMENT & AWARD DATED:19.12.2014, PASSED IN
MVC.NO.369/2013, ON THE FILE OF THE FIRST
ADDITIONAL SENIOR CIVIL JUDGE AND CIVIL JUDICIAL
MAGISTRATE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
RESERVED FOR JUDGMENT ON : 17.01.2019
JUDGMENT PRONOUNCED ON : 27.04.2019
10
THIS CROB AND APPEALS ARE HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
BELLUNKE A.S. J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals and Crob are listed for Admission, with the consent of learned counsel for the parties, they are heard finally.
2. These appeals and MFA Crob have arisen out of a common judgment and award in respect of an accident that occurred on 18.12.2012 at about 6.00 A.M.
3. MFA Crob No.100057/2017 in MFA No.101519/2017 has been filed by the cross- objectors/claimants being aggrieved by the judgment and award dated 31.01.2017, passed by the Additional District and Sessions Judge and MACT (hereinafter referred to as 'Tribunal' for short), Gadag in MVC No.60/2013. The claimants have sought for 11 enhancement of compensation MFA No.101519/2017 has been filed by the Oriental Insurance Company Ltd., against the finding on negligence on the part of KSRTC bus driver and on quantum of compensation awarded by the Tribunal.
4. Brief facts of the case for the purpose of MFA and MFA Crob are; that one Ugrasenareddy, the husband of petitioner No.1, father of petitioners No.2 and 3 and son of petitioner No.4, was doing transport business. He owned two lorries. On 17.12.2012, he proceeded with the two lorries, loaded with cement bags, from at Yeraguntla in Kadapa District, Andra Pradesh to deliver the consignment to a dealer in Belagavi; The deceased Ugrasenareddy and driver Kambagirswamy were in the lorry bearing No.AP-02/X- 7878 and the other lorry bearing No.AP-02/TA-3999 was driven by another driver and cleaner Srinivasalu. 12
5. On 18.12.2012 at about 6 am., both the vehicles after crossing 3 kms, from Halligudi on Koppal- Gadag road, the right rear wheel of the lorry bearing No.AP-02/TA-3999 got punctured. Both the lorries were stopped on the left side of the road. The said Ugrasenareddy and cleaner Srinivasalu were attending to replace the punctured wheel. At that time one Airawata Luxury Bus of KSRTC bearing No.KA-011/F- 7742 driven in a rash and negligent manner and in high speed came from Koppal side and was proceeding towards Gadag. The driver of the bus dashed to the stationary lorry. On account of the said accident, the said Ugrasenareddy and Srinivasalu got struck in between the lorry and the bus. They died on the spot. The bus conductor and one of the passenger died because of the injuries sustained in the accident. After conducting post mortem examination, the dead body of said Ugrasenareddy was taken to the native place Tadapatri from Nudaragi in a hired vehicle. 13
6. It is contended that the deceased was planning to expand his business by purchasing vehicles as he was flourishing in his transport business. Because of untimely death of Ugrasenareddy, the petitioners have been put to irreparable loss and injury. They also have lost love and affection. The family does not have any other source of income and is suffering mentally and financially. That respondent No.1 is the owner and respondent No.2 is the insurer of the offending bus and both are jointly and severally liable to pay the compensation as the accident was solely due to rash and negligent driving of the bus.
7. Respondent No.1 has filed written statement admitting the fact of occurrence of accident but denying the other petition averments. It is further contended that the vehicles were not parked on the left side of the road and there were no indicator/flasher lights signaling the parking of the lorries. Both were parked 14 in the center of the tar road without putting 'on' the stop lamps and as it was still dark the accident occurred due to poor visibility. No other precautionary measures were taken to indicate that two persons were attending to the punctured wheel. The head lights of the bus were not penetrating though thick fog that was there at the time of accident. There was no visibility for the bus driver. The driver of the bus was moving with normal speed and there is no mistake on his part. The negligence of the deceased has contributed to the accident and bus driver is not solely liable. Petitioners are entitled for compensation. The bus is insured with respondent No.2, the insurer, liability be fastened on respondent No.2 to pay the compensation.
8. Respondent No.2 had filed written statement denying all petition averments. It is contended that as per police documents, on the date of accident, the lorry driver parked the vehicle in the middle of the road. No 15 proper indicators or signals were there and that is the main cause for the accident. The KSRTC bus had fitness certificate to ply the vehicle on the road, but it had expired as on the date of accident, so without there being valid fitness certificate, the vehicle is plied on the road thereby violating the terms and conditions of the policy. The bus driver had no valid and effective driving license at the time of the alleged accident. The insured has violated the terms and conditions of the policy and hence the insurer is not liable to pay the compensation. The liability, if any, is subject to validity of the documents, terms and conditions of the policy and provisions of M.V. Act and Rules.
9. After advancing the arguments, the respondent No.2 had filed 3 I.A.s for permission to reopen the case for the evidence of respondent No.2, for issue witness summons to the driver of the bus and for impleading proposed respondent No.3, which were 16 dismissed by the Tribunal on 06.01.2016. Being aggrieved by the same, respondent No.2 preferred W.P. No.101482/2016 before this Court, wherein the order of the Tribunal was quashed and the I.A.s filed by respondent No.2 were allowed with a direction to permit the respondent No.2-Insurance company to lead evidence and issue summons to the driver of KSRTC bus and to implead Bajaj Allianz Insurance company as respondent No.3.
10. The Insurer of the lorry involved in the accident was impleaded as respondent No.3. He has filed objections. It is contended that the lorry involved in the accident was covered at the time of accident under the policy issued. But, the said lorry driver had no valid and effective driving license and was not qualified to drive such a vehicle and there is violation of rules and provisions of M.V. Act. The owner of the vehicle has not complied with the statutory demand and the police 17 have not complied with the statutory provisions by forwarding necessary documents. Denying the petition averments, the respondent has contended that the claim is excessive and exorbitant. The liability if any is subject to terms and conditions of the policy and documents. The complaint was lodged only against the bus driver and charge sheet has also been filed against the bus driver only and no charge sheet has been filed against the driver of the lorry. There was no negligence on the part of the lorry driver. The risk of the owner of the goods in the vehicle is covered under the policy issued by the said respondent. In respect of the same accident, MVC No.367/2013 was filed by the LRs of Madasari Shiva in Hubballi Court, wherein respondent No.2 admitted its liability and compromised the matter, whereupon award has been passed, hence, respondent No.2 is now estopped from contending to the contrary. 18
11. On the above pleadings, issues and additional issues were framed by the Tribunal.
1. Whether the petitioners prove that on 18.12.2012 at 6.30 am., the accident took place due to rash and negligent driving of the driver of Airawat KSRTC Bus No.KA- 01/F 7742 on Koppal-Gadag road as a result the Ugrasenareddy died on the spot?
2. Whether the petitioners prove the age, occupation and income of the deceased ?
3. Whether the respondent No.2 proves that there is a violation of terms and conditions of policy?
4. Whether the claimants are entitled for the compensation ? If so, to what extent and from whom ?
5. What order and Award ?
ADDITIONAL ISSUES :
1. Whether the respondent No.3 proves that the owner of HGV bearing Reg.No.AP 02/TA 19 3999 has committed breach of terms and conditions of the policy?
2. Whether the petition is not maintainable without arraying the owner of HGV bearing Reg.No.AP/02/TA 3999 ?
12. To prove their case, the first petitioner got examined as PW1 and other witnesses as PW2 and 3.
They got marked the documents as Ex.P1 to P24. On behalf of respondents, RW1 to RW3 are examined and marked the documents as Exs.R1 to R13.
13. After holding the trial, the Tribunal has partly allowed the petition by granting compensation of Rs.21,35,000/- with interest at 6% p.a. from the date of petition till realization from respondent Nos.1 and 2. Being aggrieved by the judgment and award of the Tribunal, the cross-objectors/claimants have preferred this objection for enhancement of the compensation. 20
14. It is contended by the learned counsel for the cross-objectors/claimants that the accident was due to the rash and negligent act of the bus driver himself. The cross- objectors/claimants had contended that they had spent money for medical expenses. The claimants/the dependants of the deceased persons claimed compensation of Rs.50,30,000/- before the Tribunal, but the Tribunal has awarded only Rs.21,35,000/- with interest @ 6% per annum.
15. The learned counsel for the cross- objectors/claimants have stated that the Tribunal has rightly considered and appreciated the evidence of PW2. The complainant/driver and eyewitness to the accident has specifically stated that lorries were parked by taking all precautionary measures. He was waving his 21 towel to give signals to the other road users and also stated that the driver of the bus was driving the bus in rash and negligent manner with great speed and crashed into the parked lorries and caused the accident.
16. The defence of contributory negligence has not been taken by the Insurance company. The Tribunal has not appreciated properly the documents at Ex.P12 to P16 and Ex.P22 and P23, which clearly disclose that deceased was owning 2(Two) 12 (twelve) wheeled lorries and thereby he was earning more than Rs.25,000/- from each lorry. But, the Tribunal has wrongly assessed the income of the deceased at Rs.10,000/- as against 25,000/- earning by each lorry.
17. It is further contended that, the Tribunal ought to have assessed the personal 22 expenses of the deceased at 1/4 t h instead of 1/3 r d as per Ex.P18 to P21. The assessment of the Tribunal with regard to the compensation payable for loss of love and affection to petitioner Nos.2 to 4 is on the lower side so also under the head of loss of estate. The Tribunal has erred in awarding a meager compensation under the head of transportation and funeral expenses as also under the head of cost of litigation the award is on the lower side. Supporting other findings of the Tribunal, Cross-Objectors/claimants have sought for enhancement of the compensation as prayed in the petition.
18. On the other hand, learned counsel for the insurance company contended that the Tribunal committed an error in considering the sole negligence of the driver of the KSRTC bus. 23 It is evident from the record that the lorry was parked without any signals. The fact was elicited in the evidence of RW1. RW1 has categorically stated that the lorry was parked without any signals and in the middle of the road and there was mist. But the Tribunal only relying on the police records without appreciating the oral evidence on record came to a conclusion that the accident was due to rash and negligent driving of the KSRTC bus. But, the Tribunal has not at all properly analysed the evidence on record tendered on behalf of appellant. The Tribunal ought to have held that the accident was due to the negligent parking of the lorry by its driver.
19. The Tribunal has erred in holding that the appellant had admitted the liability as a whole in one of the petition i.e., in MVC No.367/2013 on the file of MACT Hubballi. But, 24 the Tribunal failed to give importance to the defence that the appellant has admitted only 50% of liability and compromised only for 50%. The petitioners are not residents of place where the case is instituted. They are from Andra Pradesh.
20. The finding of the Tribunal that the appellant has admitted the whole liability, is erroneous and without due study of the records.
21. The Tribunal has wrongly assessed the income of the deceased at Rs.10,000/- per month without any basis. To prove the same, no documentary evidence was produced.
22. The Tribunal has committed an error in adding 50% towards future prospectus as the deceased was a transport businessman and there was no fixed income.
25
23. On the above said pleadings, the points would arise for consideration are :
i) Whether the appellant-Insurance company in MFA No.101519/2017 proves that there was any contributory negligence on the part of the lorry parked on the middle of the road by the deceased owner and driver?
ii) Whether the appellant-Insurance company in MFA No.101519/2017 proves that the compensation granted by the trial Court is excessive ?
iii) Whether the cross-objectors/
claimants in Crob
No.100057/2017 proves that the compensation granted by the Tribunal is not just and proper and is liable to be enhanced ?
iv) Whether the appellant-Insurance company proves that the Tribunal had no jurisdiction to try the petition?
v) What order ?
Points answered as under :
Point No.1: In the negative
Point No.2: In the negative
26
Point No.3: Partly in the affirmative.
Point No.4: In the negative
Point No.5: As per final order.
24. The fact of accident is not in dispute.
The Tribunal has not only relied on the investigation records, but, has relied upon corroborative evidence. They are at Ex.P1 to P3 and Ex.P5. PW2, the driver working under Ugrasenareddy has been examined. He has stated that he was the driver of the other vehicles owned by the deceased Ugrasenareddy, in which the deceased was also traveling. As per his evidence, both the lorries were stopped on the left side of the road with necessary indicators. He further deposed that he himself was standing on the road near the lorries giving necessary signal to every road users for free flow of the vehicles. Since the tools for repairing the punctured wheel were in his vehicle, he came 27 near the said lorry. He denied that the vehicle in question was parked in the middle of the road. They had put up stones around the wheel and was waving towel to give signals to oncoming vehicles about the parked lorries and after the accident, no other vehicles had passed.
25. It is important to note that the accident is said to have occurred on 18.12.2012 around 6.00 to 6.15 A.M. The only defence of the KSRTC-Insurance company is that there was fog and hence, no sunlight was there and the driver of the bus could not see the lorry parked in the middle of the road. There was no indicator signals. The bus lights were on. The driver came to know about the accident only after the collusion between the bus and the lorry. If that was the case, then the driver of the bus could have avoided the accident by driving slowly. 28 Therefore, if the person who had the last opportunity to avoid the accident does not avoid the same then he is presumed to be rash or negligent.
26. Therefore, looking from the evidence on record and on reappreciation of the evidence, we find that the accident occurred due to rash and negligent act of the driver of the KSRTC bus. Further it is also important to note that the bus driver has been prosecuted by the police. No charge sheet was filed against the lorry driver.
27. Further in the other case filed by the claimants, these respondent Nos.1 and 2 have admitted their liability and compromised the matter. The same is in MVC No.367/2003. The liability was admitted to the extent of 50%. They have relied on evidence of RW2. The 29 representation was given by the Advocate. So the acceptance of the memo of proposal by the concerned Advocate or the claimants would not be binding on these claimants. Therefore, the Tribunal rightly came to the conclusion that if two drivers did not take any precautionary measures to avoid the accident, the accident occurred due to in the absence of the signals and misguided the driver in making a correct judgment. So the responsibility on the bus driver was more than that on the lorry driver. Therefore, the version of RW2 itself does not prove that the accident was solely on account of parking of the Lorries on road. Even otherwise, evidence on record was sufficient to prove the negligence. In the case of B.U. Chaitanya Vs. Managing Director, Bangalore Metropolitan Transport Corporation and another, reported in 2013 ACJ 1423, it is held:
30
"Motor Vehicles Act, 1988, section 173 and Evidence Act,1872, section 115 Appeal - Estoppel - Bus dashed against scooter giving rise to three claims -Tribunal found that driver of bus was rash and negligent in causing accident and allowed compensation to claimants in all the three claims - Corporation satisfied one award and denied its liability in appeal filed against other two awards- Whether Corporation having admitted accident, negligence of its driver and satisfying one award, is estopped from denying its liability in respect of other two claims arising out of the same accident.
Negligence - Hitting from behind - Corporation bus hit a scoter from behind and scooterist and 2 minor girls on pillion fell down and sustained injuries and scooterist succumbed to his injuries- Defence that bus was not being driven in a rash and negligent 31 manner, scooterist came from left side crossroad, suddenly entered main road without noticing bus and dashed against it - Pillion rider deposed that bus hit the scooter from behind and she denied that accident had occurred due to rash and negligent riding of scooter by her father - Perusal of F.I.R., sketch and panchanama indicates that bus hit against the scooter - Case was registered against bus driver - Tribunal recorded a finding that driver of bus was responsible for the accident - Tribunal's finding upheld."
28. In this case, the stand taken by the NWKRTC bus driver is that the lorry was parked in the middle of the road and there was fog, has not been proved. Hence, Point No.1 is answered in the negative.
32
29. Point Nos.2 and 3: The case of legal representatives of lorry owner in MFA Crob No.100057/2017 is taken first. The petitioners had claimed that the deceased was earning Rs.25,000/- from each of his lorry owned by him by doing transport business. To prove the same, the dependants of the deceased have also relied upon the 'B' register extract of two lorries. The letter for transporting 880 cement bags in those two lorries, emission certificates, tax paid receipts and delivery challan bills at Exs.P13 to P16, 22 and 23. But, to prove the income of the deceased as on the date of accident, there is no documentary evidence. Therefore, the Tribunal based on the evidence on record has assessed the income of the deceased at Rs.10,000/- per month. Accident is of the year 2012-13, while settling the cases in the Lok Adalath, the notional income would be taken at Rs.7,000/- to 33 Rs.8,000/-. The deceased was owner of two lorries. Therefore, one would have definitely earned Rs.12,000/- per month.
30. The Tribunal has awarded the compensation in MVC No.60/2013 on the following heads.
1 Loss of dependency 19,20,000/ 2 Loss of consortium 1,00,000/ 3 Loss of love and affection 60,000/ 4 Loss of estate 20,000/ 5 Transportation of dead body 25,000/ and funeral expenses 6 Costs of litigation 10,000/ Total 21,35,000/
31. The Tribunal rightly relied on driving license of the deceased and found the date of birth of the deceased as 04.03.1979. Therefore, as on the date of accident i.e., on 18.12.2012 34 the deceased was 33 years old and he was running 34 years. Considering the age of the deceased i.e., 33 years, the Tribunal has taken multiplier of '16'. The Tribunal has taken future prospectus at 50%. The deceased was below 40 years. If a person is aged up to 40 years, and is self employed or a fixed salary, then future prospects at 40% has to be added. The owner of lorry doing transport business would come under the category of self employed person. Therefore, future prospectus at 50% taken by the Tribunal is liable to be interfered with. The Tribunal has rightly taken the multiplier of '16' having regard to the age of the deceased. The deceased had a wife, two children and aged mother. The mother already aged about 60 years, petitioner Nos.2 and 3 are minors. Petitioner No.1 is the widow of the deceased. If the dependants of the family members are more 35 than 4 to 6, then the deduction towards personal expenses to be taken at 1/4 t h instead of 1/3 r d . Therefore, the compensation payable to the petitioners/ claimants on the head of loss of dependency can be quantified as under :
Rs.12,000+40% = 16,800/-
16,800X12X16 = 32,25,600/-
1/4 t h has to be deducted towards personal expenses of the deceased, the loss of dependency would be :
32,25,600X ¼ = 8,06,400= 32,25,600-8,06,400= 24,19,200/-
32. As regards, award under conventional heads like consortium loss of love and affection etc., the first petitioner wife is entitled for 40,000/- towards loss of consortium and petitioner Nos.2 and 3 are minor children having 36 lost love and affection of their father, they are entitled for the compensation under the head of parental consortium at Rs.40,000/- each and petitioner No.4 is the mother of the deceased is entitled for Rs.40,000/- towards loss of love and affection. The Tribunal has awarded a sum of Rs.1,00,000/- towards consortium, is liable to be reduced.
33. The Tribunal has awarded a sum of Rs.20,000/- towards loss of estate. The deceased had two lorries, therefore, considering the said fact, we can assess the loss of estate at Rs.30,000/-. As regards transportation of dead body and funeral expenses, it is fixed at Rs.15,000/- as per decision in the case of 'National Insurance Co. Ltd., Vs. Pranay Sethi and others reported in 2017 ACJ 2700. 37
34. Having regard to the year of accident i.e., 2012, the compensation awarded under cost of litigation at Rs.10,000/- does not call for interference, since the petitioners have not challenged the same. Accordingly, the cross- objectors-claimants in MFA Crob No.100057/2017 are entitled for the enhanced compensation as under :
1 Loss of dependency 24,19,200/-
2 Loss of consortium to petitioner 40,000/-
No.1 3 Loss of consortium to petitioner 1,20,000/- Nos.2 to 4 (Rs.40,000X 3) 4 Towards transportation of dead 15,000/- body and funeral expenses 5 Towards loss of estate 30,000/- 6 Cost of litigation 10,000/-
TOTAL 26,34,200/-
35. The Tribunal had awarded
Rs.21,35,000/- to the claimants. The appellants 38 are entitled to total compensation of Rs.26,34,200/. After deducting the amount awarded by the Tribunal of Rs.21,35,000/-, the claimants are entitled to an enhanced compensation of Rs.4,99,200/-. MFA Crob.No.100057/2017 filed by the cross- objectors/claimants is partly allowed.
36. Accordingly, MFA No.101519/2017 filed by the Insurance company is dismissed
37. So far as the liability of the respondent No.2 is concerned, the same has not been seriously disputed. Though the driver of the bus was examined, nothing has been questioned about the fitness certificate or driving license, nor there are documents to prove violation of terms and conditions of the policy, so as to exonerate the liability of respondent No.2. There is violation of policy 39 conditions by the respondent No.1. But, mere contention of respondent No.2 in that regard cannot be accepted and therefore, liability has been properly fixed by the Tribunal on respondent No.2.
38. As regards to the liability is concerned against respondent No.3, the insurer of the lorry, the deceased himself was the owner of the lorry. Respondent No.3 has claimed that the owner of the lorry involved in the accident has committed breach of terms and conditions of the policy. Respondent No.3 the Legal Officer of Insurance company has given evidence stating in the affidavit that the petitioners being the legal heirs of the deceased stepped into the shoes of insured and they are not 3 r d parties for claiming compensation in view of Sec.147 of M.V. Act. Hence, respondent No.3 is not liable to pay the 40 compensation. Respondent No. 1 and 2 owner and insurer of the bus are jointly and severally liable to pay the compensation with interest.
39. The petitioners are from Andhra Pradesh. The accident occurred in Halligudi on Koppal-Gadag road, the petitions were filed before MACT, Gadag. The learned counsel for the cross-objectors/claimants relied on a ruling of this Court reported in 2013 KAR 102 in the case of Subhadra and Others V/s., Pankaj and Another, wherein it is held as under:
"B) MOTOR VEHICLES ACT, 1988 -
Section 166 (2) Jurisdiction of the
Tribunal to entertain the clainm petition
- Claim petition to be f iled at the option of the claimant - HELD, From bare perusal of sub-Section (2) of Section 166 of the Act, it is clear that the claimant is having f our options, where he can f ile claim ;petitions. He can f ile 41 it either bef ore the Claims Tribunal having jurisdiction over "the area in which the accident occurred", or bef ore the Calims Tribunal within the local limits of whose jurisdiction the "claimant resides" or carries on business" or within the local limits of whose jurisdiction the "defendant resides". The language employed in sub-Section (2) make the intention of the Legislature very clear. It conf ers the jurisdiction to the Claims Tribunal within the local limits of whose jurisdiction "accident occurred", or "claimant resides" or "claimant carries on business" or "def endant resides". - FURTHER HELD, It does not conf ers jurisdiction to the Tribunal within the local limits of whose jurisdiction the def endant carries on business. The Legislative could have used the expression "carries on business" even in case of def endant, as is used f or the claimants. The option is given to the claimant to f ile claim petition within the 42 local limits of whose jurisdiction the def endant resides. Thus, the intent of the Legislature is very clear which did not want to conf er jurisdiction to the Claims Tribunal within whose local limits the defendant/s "carries on business". - ON FACTS FURTHER HELD, The claim petition cannot be instituted bef ore the Tribunal within whose local limits the def endant/ Insurance Company carries on business, unless the other requirements, contemplated by sub- Section (2) of Section 166 of the Act, stand complied with. A claimant can institute a claim petition bef ore the Tribunal within whose local limits the respondent/def endant resides, such as driver or owner of the vehicle."
40. In this case, the petitioners have filed the petition within the area in which the accident has occurred. Therefore, that ground is 43 not available to the respondent Insurance company.
MFA No.102126/2015
41. MFA No.102126/2015 has been preferred by the Insurance Company against the judgment and award dated : 27.10.2014, passed by the Senior Civil Judge and Additional MACT, Ron in MVC No.28/2013 against the finding that the driver of KSRTC bus alone was negligent and quantum of compensation awarded.
42. Brief facts leading to the case are that, one Mr.Mallappa was the Conductor in KSRTC bus bearing Reg. No.KA.01/F-7742. In such capacity he was traveling in the said bus on 17.12.2012 and also on 18.12.2012 and the bus was proceeding from Hydarabad to Hubli. At about 6.30 A.M. on 18.12.2012, near Halligudi village situated in between Koppal and Gadag, 44 the driver of the said bus drove the bus in a rash and negligent manner and dashed to the stationary lorry bearing Reg.No.AP.02/TA-3999. Due to the accident, said Mallappa sustained grievous injuries and died on the spot. It is contended that the petitioner No.1 is the wife, petitioner Nos.2 to 4 are the sons, petitioner Nos.5 and 6 are the parents of the deceased Mallappa and they have lost the earning member of the family. Hence, the petitioners have claimed the compensation of Rs.42,25,000/- with interest.
43. In response to the notice issued by the Tribunal, respondent Nos.2 and 3 being the owner and Insurer of the said bus appeared through their counsel and filed separate objection statements denying the petition 45 averments. Respondent No.1 did not appear and therefore placed exparte.
44. Respondent No.2 has inter-alia contended that the driver of the lorry bearing Reg. No.A.P.02/TA-3999 had parked the lorry on the road without taking any precautionary measures and therefore, the accident occurred on account of negligence of the driver of the lorry and not by the driver of the bus. The respondent No.2 alternatively pleaded that the bus was insured with respondent No.3 and the liability, if any, has to be fastened on respondent No.3.
45. Respondent No.3 had taken the defence that, at the time of accident the driver of the lorry was not holding license. He has admitted that the accident was occurred by the negligence of driver of the bus, and owner of the 46 bus is liable to pay the compensation. On these grounds, he prayed to reject the petition claimed by the petitioners.
46. On the basis of the above pleadings, the Tribunal framed the following issues for its consideration:
1. Whether the petitioner proves that, on 18.12.2012 at about 6.30 a.m. in the morning, while the deceased Mallapa Malawad being the conductor of KSRTC Volvo Iravata Bus bearing No.K.A.01/F-7742 which was being driven by it's driver by name Mounesh S/o.
Muniyappa Pachal from Hyderabad towards Hubli via Koppa and Gadag, in a rash and negligent manner endangering the human life, near Halligudi village between the Koppal and Gadag, and said driver caused to puncher the said wheel due to his rash and 47 negligence, due to which the said Iravata bus dashed to a vehicle which was parked bearing No.A.P.02/TA-3999 and thereby, caused the accident in which, the said deceased Mallappa Malawad the conductor of the said Iravata bus sustained grievous injuries and succumbed to the same on the spot itself along with 2 other persons?
2. Whether the petitioner further proves that, she is entitled for the compensation? If so, to what quantum?
3. To what order or award ?
47. In order to prove the claim, petitioner No.1 examined as PW1 and got marked the documents as Exs.P1 to P10. To prove the defence, the respondent No.2 examined driver of the bus as RW1 and got marked the document 48 as Ex.R1. Respondent No.2 has not adduced any evidence, but produced the policy.
48. After holding the trial, the Tribunal given its finding on the basis of material evidence available on record and has awarded the compensation of Rs.33,30,479/- with interest @ 6% per annum from the date of petition till the date of deposit to the claimants.
49. The said award has been challenged by the Insurance company on the following grounds:
a. The Tribunal committed an error in considering the sole negligence of the driver of the KSRTC bus. The fact was elicited in the evidence of RW1. RW1 has categorically stated that the lorry was parked without any signals in the middle of the road and there was a mist. But, the Tribunal only relying on the police records without 49 appreciating the oral evidence on record came into a conclusion that the accident was due to rash and negligent driving of the KSRTC bus. It is settled principles of law that the negligence aspect is to be considered independently in MACT proceedings and inferences to be drawn on the basis of the evidence in MACT proceedings. But, in the present case the Tribunal has not at all properly analysed the evidence on record tendered on behalf of appellant. Therefore, the Tribunal is erred in coming to a conclusion that the sole negligence of the offending vehicle KA-01/F-7742. But, the Tribunal ought to held that the accident was due to the negligent parking of the lorry.
b. The Tribunal committed an error in not giving any importance to the contention of the appellant insurance company pertains to non impleading 50 of the owner and insurance company of the parked lorry. It is important to submit that the point of negligence is to be decided by the Tribunal in the proceedings, separately on the basis of evidence on record and not to depend solely on the police records. Therefore, it is absolutely necessary to implead all the tort-feasors as parties to the proceedings, but, the Tribunal has overlooked this aspect at the time of trial in spite of the defense of the appellant insurance company. Therefore, the Tribunal ought to have dismissed the petition as not maintainable in view of non- joinder of necessary parties to the proceedings.
c. The Tribunal committed an error in saddling the liability on the Insurance Company inspite of the fact that the owner of the bus represented through an Advocate and failed to establish that the deceased 51 was possessing a valid Conductor license as on the date of accident. Therefore, the Insurance company is not at all liable to pay the compensation.
d. The Tribunal committed an error in believing the evidence of the petitioner pertains to income of the deceased. It is borne out by the record that Ex.P9 that Rs.760/- shown as night halt allowances and Rs.250/- shown as incentive and Rs.35 is washing allowances and differential DA Rs.636/-. The total amount comes to Rs.1,681/- This amount being not part of the salary and it is only given in the month of November 2012. This cannot be said that every month this amount is given. Further Rs.35/- being a washing allowance given for washing of the uniform, therefore, all these cannot be considered for calculating loss of dependency. But, the 52 Tribunal wrongly considered these amounts for calculating loss of dependency. It is further important to submit that mere production of salary certificate cannot be said to be the proof, unless, the author is examined. Therefore, the calculation of loss of dependency is erroneous and improper.
e. The Tribunal committed an error that not noticing the fact that only 10 years service was left for retirement of the deceased. Therefore, by applying the principles laid down by the Hon'ble Supreme Court in case of Union of Indiai V/s. Laxmi Kumar that the whole salary is to be considered up to the age of retirement and after the date of retirement the pension is to be considered for the remaining period. Therefore, the Tribunal ought to have considered multiplier 10 for the whole salary and for pension 53 multiplier of 3 should be applied by splitting the multiplier.
f. The Tribunal committed an error in not properly deducting the income tax as per the rules. The Tribunal ought to have deducted 30% towards income tax.
g. The respondent owner of the Airavat Bus has violated the conditions of the policy by not properly keeping vehicle in road worthy condition.
50. The finding of the Tribunal is erroneous. It was the lorry which was parked without any precautionary measures.
51. On the basis of the facts and circumstances of the case, the points would arise for consideration :
1) Whether the appellant-Insurance company in MFA No.102126/2015 proves that the accident was on 54 account of rash and negligent of lorry driver on account of parking of the vehicle on the road without any signals and that the negligence if any, on the appellant would be only to the tune of 50:50 as admitted in MVC No.367/2013?
2) Whether this petition was bad for non joinder of necessary parties?
3) Whether the appellant-Insurance company had proved that the deceased conductor had no valid license as on the date of accident.
Therefore, he is not liable to satisfy the award?
4) Whether the appellant-Insurance company in MFA No.102126/2015 proves that the compensation granted by the trial Court is excessive with regard to loss of dependency?
5) Whether split multiplier is applicable for calculating loss of dependency?
6) Whether the appellant-Insurance company proves that the Tribunal has not deducted the income tax as per rules?
7) What order ?
55
The points answered as under :
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : In the negative
Point No.5 : In the negative
Point No.7 : In the negative
Point No.8 : As per the final order
52. Point No.1: While deciding in MFA
No.101519/2017, issue of contributory
negligence has already been decided by
answering the point against the Insurance
company. The refore, the very same reasons
holds good for this case also and no different finding can be arrived. Hence, point No.1 answered in the negative.
53. Point No.2: The contention of the appellant-Insurance company is that, driver of the parked lorry has not been impleaded in this case. It is well settled principle of law that, in 56 case of joint tort-feaser, claimants can recover entire compensation from any one of the joint feasor. In this case, the deceased Mallappa was employed under KSRTC. The negligence has been contributed to him alone and in other clubbed with cases, the Tribunal found the KSRTC driver, who was negligent and responsible for the said accident. Therefore, the petition was not bad in law for non-joinder of necessary parties. Hence, point No.2 answered in the negative.
54. Point No.3: In cross examination of PW1, it is not even justified that the deceased conductor had no license. The insurance company has not led any rebuttal evidence to show that the deceased conductor had no valid license. Hence, point No.3 answered in the negative.
57
55. Point No.4 and 6 : It is not in dispute that the petitioners/claimants are the dependants of the deceased bus conductor. As per P.M. report, the age of the deceased was 48 years and the correct multiplier applicable is '13'. The gross salary of the deceased is held to be at Rs.22,579/- as per Ex.P9-salary certificate. It was issued just in the month prior to the death of the deceased. An amount of Rs.666/- has been deducted as statutory deduction as per Ex.P9. The Tribunal has taken the monthly salary of the deceased at Rs.21,913/-. The Tribunal has added future prospects at 30% to the monthly salary(21,913+6574) and calculated the net income per annum at Rs.3,41,844/-. Approximately, a sum of Rs.1,00,000/- was taxable in the year 2012, by applying 10% towards income tax which comes to Rs.10,000/- 58 which has to be deducted in the total salary i.e., yearly income. The total savings of the deceased was Rs.36,840/- by contribution towards LIC and towards Provident Fund. The taxable income is found to be Rs.1,00,000/- in the year 2012, 10% of that amount has also been deducted towards income tax. Hence, total salary comes to Rs.3,31,844/- (3,41,844-10,000=3,31,844/-)
56. As per the decision of Hon'ble Supreme Court in the case of "Pranay Sethi" reported in "2017 ACJ 2700", having regard to the age of the deceased at the time of accident was 48 years as per post mortem report. The future prospects to be taken at 25% while quantifying the loss of dependency. The Tribunal held Rs.43,13,972/- is net income of the deceased. After deducting 1/4 t h towards personal expenses of the deceased (Rs.43,13,972-10,78,493), the 59 loss of dependency is held by the Tribunal is at Rs.32,35,479/-. Therefore, point No.4 and 6 answered in the negative.
57. Point No.5: It is not in dispute that the deceased was aged about 48 years as on the date of accident. He had left only 12 years of service. In this case, the multiplier applicable is '13'. However, there is no evidence on record to show that the deceased would have been getting pension. Because, the deceased was an employee of NWKSRTC. It is not brought to the notice that it is a pensionable job. It is not known whether, he is given likesum amount like gratuity etc., If split multiplier is taken into consideration for the period of 12 years. Only for one year multiplier has to be split. Having regard to this fact, I find that it is not justifiable to apply the theory of split multiplier. Therefore, 60 split multiplier will not apply to this case. Hence, point No.5 answered in the negative.
58. On perusal of the award of the learned Tribunal, a sum of Rs.50,000/- has been awarded under the head of consortium to petitioner No.1, the wife of the deceased and a sum of Rs.25,000/- and Rs.20,000/- has been awarded under the heads of funeral expenses and loss of estate respectively. As per the decision in the case of Pranay Sethi's (stated supra) an amount of Rs.40,000/- is to be payable under the head of loss of consortium, an amount of Rs.15,000/- to be payable under the head of loss of estate and an amount of Rs.15,000/- to be payable towards transportation of dead body and funeral expenses. The claimants in MFA 61 No.102126/2015 have not preferred any appeal against the judgment and award of the Tribunal.
59. Reducing the quantum of compensation under the head of consortium and funeral expenses, it would meet the ends of justice. Therefore, the quantum of compensation payable to the petitioners in MFA No.102126/2015 is quantified as under :
Amount in (Rs.) 1 Loss of dependency 32,35,479/-
2 Loss of consortium to 40,000/-
Petitioner No.1 3 Funeral expenses 15,000/-
4 Loss of estate 15,000/-
TOTAL 33,05,479/-
62
60. Apportionment and direction for
deposit etc., made in the award of the Tribunal are affirmed. Interest applicable as awarded by the Tribunal.
61. The learned counsel for Insurance company has relied upon the decision with regard to liability in the case of The Divisional Manager, National Insurance company Limited, Davanagere V/s. P. Krishna Reddy Bin Channa Reddy and another" reported in 2012(2) KAR.L.J.413(DB), wherein, it is held as under:
"WORKMEN'S COMPENSAT ION ACT, 1923, Section 30(1) - Motor Vehicles Act, 1988, Sections 2(5), 2(6), 29, 15 and 147 - Claimant working as conductor in the accident vehicle - Whether an Insurance Company can be f astened with liability to pay compensation to a person, who was working as a conductor in a bus, conductor's 63 licence having expired and having not been renewed on date of occurrence of accident and sustaining of injury/permanent disability?"
62. In view of the fact being not proved, the Insurance company is liable to satisfy the award. The appellant-Insurance company cannot escape from his liability.
63. The evidence of RW1, the driver is not corroborated so as to hold that there was negligence on his part and on other in the ratio of 50:50.
Point Nos.1 to 7 raised for determination of this Court are answered accordingly. Accordingly, the appeal filed by the Insurance Company is hereby dismissed.
64MFA No.101869/2015 & MFA No.100846/2015
64. MFA No.101869/2015 has been preferred by the Insurance Company for holding sole negligence on the bus driver and MFA No.100846/2015 has been preferred by the claimants for enhancement of the compensation against the same judgment and award dated 19.12.2014, passed by I Additional Senior Civil Judge and CJM and Additional MACT, Dharwad in MVC No.369/2013.
65. Brief facts of the case are that, the husband of petitioner No.1 by name Gajanan S/o. Kishan Sonunse was working as a Deputy General Manager at Garden Polymers Pvt. Ltd., Dharwad. On 18.12.2012 he was returning from Hyderabad to Dharwad in KSRTC Airawat bus bearing Reg. No.KA-01/F-7742 at about 6.30 A.M. when the bus came near Halligudi Village 65 on Koppal to Gadag highway at that time the driver of the KSRTC bus drove the same in high speed and rash and negligent manner and dashed to a parked lorry on the side of the road and caused the accident. Due to the impact, the conductor of the bus and the husband of petitioner No.1 Gajanan S/o. Kishan Sonunse died in the District Hospital, Gadag due to the injuries sustained in the accident. The dead body of the deceased was transported to his native place Pune in a hired vehicle for which they have spent Rs.50,000/- and Rs.1,00,000/- for the final rituals of the deceased. Due to untimely death of Gajanan S/o.Kishan Sonunse, petitioner No.1 lost her husband, petitioners Nos.2 and 3 lost their father and petitioner No.4 lost his son. The deceased was earning more than 90,000/- per month. A criminal case was registered against the driver of the KSRTC bus 66 in Mundargi Police Station, who was driving the bus in a rash and negligent manner. Respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation amount to the petitioners. Therefore, the petitioners have prayed to allow the petition.
66. In response to the notice issued, the respondents appeared through their counsels. Respondent No.1 has filed his denial objections denying the case of the petitioner and also denied the age, occupation and income of the deceased. It is denied that the petitioners have spent Rs.50,000/- for medical expenses and Rs.1,50,000/- for transportation and cremation of the body of the deceased. It is further denied that the accident is occurred due to the rash 67 and negligent driving of the drier of the KSRTC bus. It was contended that the offending vehicle KSRTC bus bearing Reg.No.KA-01/F-7742 is insured with respondent No.2, hence, respondent No.2 is liable to pay the compensation if any, Therefore, prayed to dismiss the petition.
67. Respondent No.2 has filed his denial objections denying the case of the petitioners, denied the age, occupation and income of the deceased. It is contended that the alleged accident is occurred due to the negligence of the lorry bearing Reg. No.AP-02/TA-3999 which was parked on the side of the road without parking lights. The driver of the KSRTC bus bearing Reg. No.KA-01/F-7742 was driving the bus slowly but the accident was occurred due to the negligence of the lorry driver. Hence, there is no 68 negligence on the part of the driver of the KSRTC bus. The petition is bad for non-joinder of the owner and insurer of the lorry bearing Reg. No.AP-02/TA-3999. The compensation claimed is exorbitant. Hence, prayed to reject the petition.
68. On the basis of the above said pleadings, the Tribunal framed the following issues:
i) Whether petitioners prove that on 18.12.2012 at about 6.30 a.m. near Halligudi on Gadag-Koppal road in Mundargi Taluk of Gadag District when the deceased Gajanan was traveling in the KSRTC Luxury bus bearing Reg.
No.KA-01/F-7742, the drier of said bus drove it in high speed and rash and negligent manner and dashed to a stationary lorry bearing Reg. No.AP-02/TA-3999 69 parked on the left side of road and thereby deceased sustained grievous injuries and died due to accidental injuries while taking treatment in the hospital ?
ii) Whether respondent No.2 proves
that the accident in question
occurred due to negligence of the driver of lorry bearing Reg.No.AP- 02/TA-3999 who parked the lorry on the road and had not put on the tall lamps?
iii) Whether respondent No.2 proves that the petition is bad for non-
joinder of necessary parties i.e., owner and insurer of the lorry bearing Reg. No.AP-02/TA-3999?
iv) Whether petitioners are entitled
for compensation ? If so, how
much and from whom ?
v) What order or award ?
70
69. In order to prove their case, petitioner No.1 got examined herself as PW1 and an official of the employer of the deceased is examined as PW2 and got marked 35 documents as per Ex.P1 to P35. Driver of the KSRTC is examined as RW1 and no documents have been produced.
70. After holding the trial, Tribunal has passed the award of compensation as under :
Amount in (Rs.) 1 Loss of dependency 97,51,911/-
2 Loss of expectancy 25,000/-
3 Loss of consortium 25,000/-
Transportation of dead 4 body, Funeral and 50,000/-
obsequies Less : Advance payment 5 towards funeral 15,000/-
expenses
Total 98,36,911/-
71
71. Being aggrieved by the award of
compensation, the appellant-Insurance company in MFA No.101869/2015 has challenged the award on following grounds :
a. The Tribunal committed an error in considering the sole negligence of the driver of the KSRTC bus. As per evidence on record, the lorry was parked without any signals and in the middle of the road and there is a mist as stated by RW1. Petitioners have not at all examined any independent witness in support of their contention pertains to negligence of the offending vehicle. It is settled principles of law that the negligence aspect is to be considered independently in MACT proceedings and inferences to be drawn on the basis of the evidence in MACT proceedings. The Tribunal is erred in coming to a conclusion of the sole negligence of the offending vehicle KA-01/F-7742. But, the Tribunal ought to have held the accident was due to the negligent parking of the lorry.
b. The Tribunal committed an error in non impleading of the owner and insurance company of the parked lorry. The point of negligence is to be decided by the tribunal, in the 72 proceedings on the basis of evidence on record and not to depend solely on the police records. It is necessary to implead all the tort- feasor as parties to the proceedings.
The Tribunal ought to have dismissed the petition as not
maintainable in view of non-joinder of necessary parties to the proceedings.
c. The Tribunal has committed an error in rejecting the I.A. No.4 pertains to jurisdiction of the Tribunal. The petition is to be filed in three jurisdictional tribunals(1) Where the accident has been caused. (2) Where the petitioners permanently resides. (3) Where the owner of the vehicle was residing.
The accident was caused in the jurisdiction of Gadag and the petitioners are residing in the jurisdiction of Pune Maharashtra.
The owner residing in the jurisdiction of Hubli. Therefore, none of these are applicable to the jurisdiction of Dharwad. The judgment passed is without jurisdiction is not maintainable in law and petition itself is to be dismissed.
d. The Tribunal committed an error in taking the total salary in computing the loss of dependency, such as conveyance allowances, city 73 compensatory allowances and other allowances.
e. The deceased was employed in the M/s. Pearl Polymers Ltd., as Deputy General Manager and was earning Rs.47,123/- per month up to 24.09.2012 and with other allowances making the gross salary as Rs.81,314/- per month. But, as per the appointment letter, the deceased was placed under probation for a period of six months extendable in the event of satisfactory performance on or before the completion of probationary period. On the date of accident, the deceased was still under probation, it was up to 23.03.2013, but, he died on 18.12.2012. In this view, the Tribunal ought to have computed the loss of dependency on Rs.47,123/- only with split multiplier.
f. The Tribunal committed an error in not properly deducting the income tax as per the rules, it ought to have deducted 30% towards income tax. g. The Tribunal committed an error in adding the future prospectus at 30% by placing reliance on Rajesh case. By study of papers pertains to the employment of the deceased did not fall under either category i.e., he 74 was neither in the permanent employment or self employment.
h. The Tribunal committed an error in not adopting the split multiplier system. As per Ex.P22, the retirement at the age of 58 years, but the deceased was aged about 47 years and multiplier applicable is 13 only. Therefore, the age of retirement falls within the multiplier. Therefore, the period of retirement is only 11 years. Hence, for full salary to be taken for 11 multiplier only. Then if he entitled for any pension then the same to be calculated by applying multiplier as 2.
i. The respondent owner of the Airavat Bus has violated the conditions of the policy by not properly keeping vehicle in road worthy condition.
72. For the above reasons the appellant- Insurance company has prayed to allow the appeal by setting aside the judgment and award passed by the Tribunal.
75
73. Being dissatisfied with the award, the claimants have preferred the appeal in MFA No.100846/2015 on the following grounds:
i) The Judgment and award passed by the Tribunal is not sound and sustainable and the same is on very lower side.
ii) The judgment and award passed
by the Tribunal is against the
facts and circumstances of the
case, the same is liable to be
modified.
iii) The Tribunal ought to have
deducted another sum of
Rs.1,00,000/- towards repayment of housing loan, which is statutorily liable to be deducted while calculating income tax.
iv) The Tribunal ought to have
deducted another sum of
Rs.50,000/- towards payment
made to LIC, which is statutorily 76 liable to be deducted while calculating income tax.
v) The Tribunal erred in deducting 1/3 r d towards personal expenses instead of 1/4 t h looking to the number of claimants.
vi) The Tribunal erred in deducting Rs.15,000/- paid by respondent No.1 towards advance payment towards funeral expenses out of the compensation amount which is not permissible as per the settled propositions of law.
vii) The Tribunal has awarded the compensation under the head of loss of expectancy, loss of consortium, transportation of dead body, funeral and obsequies on the lower side.
viii) The Tribunal has not awarded any amount of compensation under the heads of loss of love and affection and loss of estate.77
74. Hence, the claimants have prayed to modify the award of the Tribunal by enhancing the compensation as prayed.
75. The points would arise for consideration are :
i) Whether the claimants prove that they are entitled for enhancement of compensation ?
ii) Whether the appellant-Insurance company proves that petition is bad for non-joinder of necessary parties to the proceedings ?
iii) Whether the appellant -
Insurance company proves that
the accident was due to the
negligent parking of the lorry
driver ?
iv) Whether the appellant-Insurance
company proves that the quantum of compensation awarded by the 78 Tribunal on various heads is erroneous in law against the facts and evidence on record and therefore, it is liable to be interfered ?
v) What order ?
76. The points are answered as under :
Point No.1 : In the affirmative Point No.2 : In the negative Point No.3 : In the negative Point No.4 : In the negative Point No.5 : As per the final order
77. Point No.1: On perusal of the para Nos.13 and 14 of the judgment, we find that the income of the deceased assessed by the Tribunal after deducting the statutory deductions like professions tax, and payment of income tax, the net salary is found to be Rs.8,65,554/- per annum. Absolutely, there is no material on record to say that the said figures are wrong or 79 that the documents like salary slip i.e., Ex.P23 to P25 or bank pass book at Ex.P26, Annual tax statement at Ex.P30, Form No.16 at Ex.P32 are disbelievable. The Tribunal has also added 30% towards future prospects to the income of the deceased. However, the Tribunal has taken the personal expenses of the deceased at 1/3 r d as deceased had legal heirs i.e., petitioner Nos.1 to 3 and the father petitioner No.4. But, the father will not be considered as dependent on the deceased.
78. Tribunal has rightly taken the yearly net salary at Rs.8,65,554/- and has rightly added 30% towards the future prospectus (Rs.8,65,554/- + Rs.2,59,666/-) which comes to Rs.11,25,220/-.
79. The deceased left behind him petitioner Nos.1 to 4. But, petitioner No.4 is the 80 father of the deceased, is not considered as dependent. Hence, 1/3 r d has to be deducted towards personal expenses of the deceased in the total salary, hence, the loss of dependency would be :
11,25,220X1/3 = 3,75,073/-
11,25,220-2,81,305=7,50,147/- per annum
80. The Tribunal has rightly applied the multiplier of '13' having regard to the age of the deceased. Therefore, total loss of dependency would be Rs.7,50,147 X13=97,51,911/-
81. Point No.2 and 3 : In view of the finding of this Court as well as by the Tribunal that the accident occurred solely on account of rash and negligent act of the bus driver. Hence, the petition cannot be dismissed on the ground of non-joinder of necessary parties. Moreover, 81 the driver of the KSRTC bus as well as the driver of the lorry at the most would be joint tort- feasor so far as this claim is concern. Therefore, the claimants can recover the compensation any one of the joint tort-feasor. The contention of the Insurance Company has to be answered in the negative. Hence, these points are answered in the negative.
82. The appellant-Insurance company has contended that the deceased was probationer and he is liable to be discharged at any point of time by his performance.
83. Having regard to the age of the deceased, he could have changed the job from one company to another company. After completion of probationary period, salary would be automatically increased by the new company. Therefore, the contention of the Insurance 82 company is devoid of merits, is liable to be rejected.
84. On perusal of the compensation awarded on the other heads, the Tribunal granted compensation i.e., loss of consortium, transportation of dead body, advance payment towards funeral expenses paid by the company, we find, it is liable to be interfered with by this Court as per the decision of "Pranay Sethi". It is held that the wife is entitled the compensation under the head of loss of consortium of Rs.40,000/- as against Rs.25,000/- awarded by the Tribunal. As regards loss of consortium, petitioner Nos.2 to 3 and petitioner No.4, the father are entitled at Rs.40,000/- each. As regards transportation of dead body, funeral expenses is fixed at Rs.15,000/- and loss of estate at Rs.15,000/-. Accordingly, the 83 claimants are entitled for the enhanced compensation as under:
Amount in (Rs.) 1 Loss of dependency 97,51,911/-
Loss of consortium to 2 40,000/-
petitioner No.1, the wife Loss of consortium to 3 petitioner Nos.2 to 4 1,20,000/- (Rs.40,000X3) Transportation of dead body, 4 15,000/-
Funeral expenses 5 Loss of estate 15,000/-
Total 99,41,911/-
85. Accordingly, the claimants are entitled to a total compensation of Rs.99,41,911/- and after deducting the compensation awarded by the Tribunal at Rs.98,36,911/- the claimants are entitled to an enhanced compensation of Rs.1,05,000/- along with interest at the rate of 84 6% per annum from the date of petition till deposit. Accordingly, the appeal filed by the claimants in MFA No.100846/2015 is allowed in part modifying the impugned judgment and award and the appeal filed by the Insurance Company in MFA No.101869/2015 is dismissed.
86. The appellant -Insurance Company is directed to deposit the enhanced compensation with interest within a period of eight weeks from the date of receipt of a certified copy of this judgment.
87. On such deposit, the apportionment and disbursement of the enhanced compensation shall be made as per the judgment and award of the Tribunal in that regard.
88. The accident occurred almost during day time i.e., early morning at 6.00 A.M. There is no evidence to show that the visibility so 85 appear, the bus driver could have seen front side through glass and he could have avoid the accident. Therefore, having regard to the law laid down in the case of "Dr. Bhaktaprahlad and another V/s. Nirwani and others"
reported in (2011) ACC 2787(DB), it is held that "Motor Vehicles Act, 1988, section 122 and Centr al Motor Vehicles Rules, 1989, rules 102 and 109 - Negligence- Contributory negligence - Motor cycle at f ast speed hit against truck parked on national high way in the night resulting in death of motorcyclist - Police off icer who witnessed the accident lodged F.I.R. disclosing that truck was parked without any indication and without switching on parking lights and accident occurred on account of rash and negligent driving of motor cycle- According to spot panchan ama lef t side wheels of truck were parked on kacha portion and right side wheels on metalled portion of the road - There was suff icient space on remaining portion of metalled road f or the deceased to drive his motor cycle - Insurance company did not examine truck driver to prove that he was not negligent in parking the truck and adverse inf erence is drawable against 86 it - Tribunal presumed that deceased being youngster might have dashed against parked truck under the inf luence of alcohol - Post mortem report does not disclose any symptom of alcohol - Tribunal held that both the drivers were negligent in causing the accident and their respective blame being 10:90 for truck driver and motorcyclist - Appeliate court modif ied the blame as 50:50.
89. The Fact of negligence has to be attributed to the bus driver alone. Because, the bus driver had full view of his front side.
90. Therefore, the NWKRTC-insurance company cannot escape from his liability.
91. Accordingly, the MFA Crob No.100057/2017 filed by the cross- objectors/claimants is allowed by enhancing the compensation of Rs.4,99,200/-(26,34,200- 21,35,000). Respondent Nos.1 and 2 are jointly and severally liable to pay compensation with 87 * interest. Respondent No.1 shall deposit the award amount within eight weeks from the date of receipt of the copy of this judgment.
92. MFA No.101519/2017 filed by the Insurance company is dismissed.
93. Appeal filed by the Insurance company in MFA No.102126/2015 is hereby dismissed.
94. Appeal filed by the claimants in MFA No.100846/2015 is allowed in part modifying the impugned judgment and award by awarding to the claimants an enhanced compensation of Rs.1,05,000/- along with interest at the rate of 6% per annum from the date of petition till deposit and appeal filed by the Insurance Company in MFA No.101869/2015 is hereby dismissed.
* Corrected vide order dated 31.07.2019 Sd/-
BASJ 88
95. The appellant-Insurance company is directed to deposit the enhanced compensation with interest within a period of six weeks from the date of receipt of a certified copy of this judgment.
96. On such deposit, the apportionment and disbursement of the enhanced compensation shall be made as per the judgment and award of the Tribunal in that regard.
Amount in deposit, if any, by the Insurance company in MFA Nos.101519/2017, 102126/2015 and 101869/2015, shall be transmitted to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE MNS/