Karnataka High Court
Smt Shanthamma vs Sri S D Muneer Bhashe on 14 February, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL No.3554 of 2017 (MV)
C/W
MISCELLANEOUS FIRST APPEAL No.2737 of 2017 (MV)
IN M.F.A. No.3554 of 2017
BETWEEN :
1. SMT.SHANTHAMMA
W/O.M.NAGARAJU
AGED ABOUT 46 YEARS
2. SRI.SHASHI KUMAR.N
W/O.N.NAGARAJU
AGED ABOUT 29 YEARS
3. KUMARI.SHILPA.N
D/O.M.NAGARAJ
AGED ABOUT 28 YEARS
4. KUMARI POOJA.N
D/O.M.NAGARAJU
AGED ABOUT 26 YEARS
2
ALL THE APPELLANTS ARE
RESIDING OF: NO.265
2ND CROSS, 2ND MAIN ROAD
GAYATHRIPURA
MYSORE - 570 019. ... APPELLANTS
(BY SRI.LAKSHMAN RAO, ADVOCATE)
AND:
1. SRI.S.D.MUNEER BHASHE
S/O.RASOOL SAHEB.R, MAJOR
(AGE NOT KNOWN TO THE APPELLANTS)
RESIDING AT: RACH STREET
MANSOOR NAGAR
MULAPET, NELLORE
ANDHRA PRADESH - 524 001.
2. SREE RAM GENERAL INSURANCE CO., LTD.,
NO.302, 3RD FLOOR
S & S CORNER BUILDING
HOSPITAL ROAD, SHIVAJI NAGAR
BANGALORE - 560 001.
BY IT'S MANAGER
3. THE MANAGING DIRECTOR
K.S.R.T.C., K.H.ROAD
SHANTHI NAGAR
BANGALORE - 560 027.
4. THE DIVISIONAL CONTROLLE
K.S.R.T.C., MYSORE RURAL DIVISION
BANNIMANTAP ROAD
HANUMANTHANAGAR
MYSORE - 570 007. ...RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE FOR R-2,
SRI.F.S.DABALI, ADVOCATE FOR R-3 & R-4,
V/O DATED:09.02.2018, NOTICE TO R-1
DISPENSED WITH)
3
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED:07.01.2017
PASSED IN MVC. NO.6779/2013 ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.2737 of 2017 (MV)
BETWEEN :
THE CLAIM MANAGER
SREE RAM GENERAL INSURANCE
COMPANY LIMITED, NO.302
3RD FLOOR, S & S CORNER BUILDING
HOSPITAL ROAD, SHIVAJI NAGAR
BANGALORE - 560 001.
NOW AT
SHRIRAM GENERAL INSURANCE CO. LTD.,
5\4, 3RD CROSS, S.V.ARCADE
BELAKANAHALLI MAIN ROAD
OPP: BANNERAGHATTA MAIN ROAD
II M.B.POST, BANGALORE - 560 076.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O.MAHESH, ADVOCATE)
4
AND:
1. SHANTHAMMA, AGE 46 YEARS
W/O.M.NAGARAJU
2. SHASHI KUMAR.N, AGE 29 YRS
S/O.N.NAGARAJ
3. KUMARI SHILPA.N, AGE 28 YRS
D/O.N.NAGARAJ
4. KUMARI POOJA.N, AGE 26 YRS
D/O.N.NAGARAJ
ALL ARE R/O.NO.265, 2ND CROSS
2ND MAIN ROAD, GAYATHRIPURA
MYSORE - 570 019.
5. S.D.MUNEER BHASHA, MAJOR
S/O.RASOOL SAHEB, RESIDING AT
RACH STREET, MANSOOR NAGAR
MUAPET, NELLORE
ANDHRA PRADESH.
6. THE MANAGING DIRECTOR
K.S.R.T.C., K.H.ROAD
SHANTHINAGARA
BANGALORE - 560 027.
7. THE DIVISIONAL CONTROLLER
K.S.R.T.C., MYSORE RURAL DIVISION
BANNIMANTAP, HANUMANTHANAGARA
MYSORE - 570 007.
...RESPONDENTS
(BY SRI.LAKSHMAN RAO, ADVOCATE FOR R-1 TO R-4,
SRI.F.S.DABALI, ADVOCATE FOR R-6 & R-7,
R-5 SERVED)
5
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.01.2017 PASSED IN
MVC. NO.6779/13 ON THE FILE OF THE 13TH ADDITIONAL
JUDGE, COURT OF SMALL CAUSES & MEMBER, MACT,
BENGALURU, AWARDING COMPENSATION OF
RS.20,39,000/- WITH INTEREST AT 8% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
THESE MISCELLANEOUS FIRST APPEALS HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON
28.11.2019, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY JYOTI MULIMANI J., DELIVERED
THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with consent of learned counsel on both sides, they are heard finally.
2. MFA No.3554/2017 has been filed by the claimants while MFA No.2737/2017 has been filed by the Insurance Company, both assailing the common judgment and award dated 07.01.2017 passed by the XIII Additional 6 Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for the sake of convenience) in MVC No.6779/2013.
3. For the sake of convenience, parties herein shall be referred to in terms of their status and ranking before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') on account of the death of Sri.M.Nagaraju in a road traffic accident that occurred on 26.05.2013 at about 5.00 p.m. According to the claimants, on the fateful day, M.Nagaraju, being the driver of KSRTC Volvo bus bearing registration No.KA-01/F-8300 was proceeding from Mysore towards Tirupati. At that time, a truck bearing registration No.AP-26/TT-6676 driven by its driver came from the opposite direction in a rash and negligent manner and hit the KSRTC bus, as a result of which, M.Nagaraju, driver as well as the conductor of the bus died on the spot. In this 7 regard, Chandragiri P.S., Chittor District had registered a case in Crime No.111/2013. The claimants are the widow and children of the deceased -M.Nagaraju. According to the claimants, on account of his untimely death, their family had lost his earnings and love and affection of the deceased. Hence, they sought compensation on various heads.
5. In response to the notices issued by the Tribunal, respondent No.1 did not appear and hence, he was placed ex parte. Respondent Nos.2 to 4 appeared and filed their objections.
6. Respondent No.2 - insurer of truck contested the claim petition and according to them, the accident occurred due to the rash and negligent driving of the KSRTC bus and there was no negligence on the part of the lorry driver and therefore, no relief could be granted to the claimants. Respondent No.2 admitted that 1st respondent was the owner and insurer of truck bearing No.AP-26/TT- 6676. It was also stated that the driver of the truck 8 bearing No.AP-26/TT-6676 was not having a valid and effective driving license at the time of the accident and that as per the police record, the deceased - M.Nagaraju was driving the KSRTC bus in a rash and negligent manner with high speed and hit the truck bearing No.AP-26/TT-6676. As such, no actionable negligence could be attributed against the driver of the truck and if at all, any liability was attributed, the same was subject to the terms and conditions of the policy and hence, sought for the dismissal of the claim petition.
7. Respondent Nos.3 and 4 filed their objections and stated before the Tribunal that the concerned Police had filed the charge sheet against the driver of the bus bearing No.KA-01-F/8300, hence, the petition was not maintainable under the Act. They also stated that a sum of Rs.5,70,720/- was deposited vide cheque bearing No.387029 on 24.6.2013 under the Workmen's Compensation Act before the Commissioner for Workmen's Compensation, Mysore, in favor of the claimants. They 9 further stated that the alleged accident was a head on collision and it was due to the negligence on the part of the truck driver and therefore, prayed for the dismissal the claim petition.
8. On the basis of the pleadings, the Tribunal framed the following issues for its consideration:-
"1. Whether the petitioners prove that deceased - Sri.M.Nagaraju died due to accidental injuries arising out of accident alleged to have been taken place on 26.05.2013 at about 5.00 a.m. (sic! p.m.) near Kalroadpalli Highway, Karoadpalli village on Chitoor - Tirupathi main road, Chandragiri Mandal due to the rash and negligent driving of the driver of the truck bearing registration No.AP-26/TT-6676?
2. Whether petitioners are entitled for compensation? If so, what amount and from whom?
3. What order or award?"10
9. In order to prove their case, first claimant examined herself as PW-1 and Sri.H.S.Harish, who was an eye witness was examined as PW-2 and they produced fourteen documents which were marked as Exs.P1 to P14. On behalf of respondent No.4, Sri.K.K.Somashekar, Deputy Chief Labour Welfare Officer was examined as RW-1 and he got marked six documents which were marked as Exs.R1 to R6. R.S.Shivananda, the Legal Manager of respondent No.2 was examined as RW-2 and he got marked seven documents as Exs.R7 to R14. Another witness by name - Shoba K.A. was examined as RW-3 and she got marked seven documents which were marked as Exs.R15 to R22.
10. The Tribunal analyzed the entire evidence on record and answered issue No.1 partly in the affirmative and issue No.2 in the affirmative and awarded a total sum of Rs.20,39,000/-, out of which, the Tribunal fixed the liability to an extent of 70% on the respondent No.2 and 30% on the driver of the bus. The Tribunal held that the 11 second respondent was liable to pay a sum of Rs.14,27,300/- i.e., the 70% of the total amount. Assailing the judgment and award, the claimants have preferred their appeal for enhancement of compensation and the Respondent No.2 / insurance company has also filed an appeal challenging the finding on contributory negligence and also for the reduction in the compensation amount.
11. We have heard the learned counsel for the claimants, learned counsel for respondent No.2 / insurance company and learned counsel for respondent Nos.3 and 4 and perused the material on record.
12. Learned counsel for the claimants submitted that as on the date of the accident, the deceased was aged about 52 years and was working as a driver in KSRTC and was earning a sum of Rs.37,866/- per month. He also submitted that to substantiate the claim, the claimants had produced salary slip as per Ex.P6. But the Tribunal considered the income of the deceased at Rs.21,230/- per 12 month and erroneously proceeded to deduct 1/3rd towards personal expenses and applied multiplier '11' and awarded a sum of Rs.18,69,000/- towards 'loss of dependency'. Therefore, he submitted that the award of compensation under the head of 'loss of dependency' is not correct.
13. He also submitted that the Tribunal erred in fixing the liability (30%) on the deceased - M.Nagaraju, the driver of KSRTC Volvo bus. He further contended that the amount awarded on other heads is very meager and the same requires re-assessment by this Court. Lastly, he contended that the deceased had a very bright future and therefore, the Tribunal ought to have considered future prospects. Therefore, the contention was that having regard to the circumstances of the case, the award of compensation of a sum of Rs.20,39,000/- requires reconsideration. Hence, he prayed that the appeal filed by the claimants may be allowed and the appeal filed by the insurance company may be dismissed.
13
14. Per contra, learned counsel for the respondent No.2 / insurance Company contended that the judgment and award of the Tribunal is contrary to law and material on record. He submitted that the Tribunal ought to have noted that the claimants, even after remand of the matter by this Court, failed to prove that the alleged accident was due to the negligence of driver of insured lorry as required under law. The oral evidence of PW.2 an alleged eye witness, who claimed to be a passenger in KSRTC Volvo bus and did not bring up the truth and his evidence was not worthy of consideration since he failed to prove that he was a passenger as claimed. Thus, the same is contrary to Ex.P2 spot sketch and Ex.P3 - IMV report which were neither denied or disputed and spoke for themselves i.e., the principle of Res Ipsa Loquitur applied in the instant case. Further, it was contended that KSRTC has already deposited a sum of Rs.5,70,720/- before the Commissioner for Workmen's Compensation, Mysuru and therefore, the amount received by the claimants be deducted under the law. He further submitted that the 14 reasoning of the Tribunal at paragraph Nos.15 and 16 is a result of misreading and improper appreciation of material documentary evidence on record.
15. Learned counsel for the insurance company submitted that the finding of the Tribunal even after observing that deceased, being driver of KSRTC Volvo bus had gone to the extreme right side of 'S' curve and hit the insured lorry which was on the extreme left of the road, is highly perverse and reasons assigned to do so are highly illegal, since the left side of the bus and its left side front door had damaged and ignoring the fact that the bus had gone to its extreme right side and in a horizontal position and perpendicular to the insured lorry. It was further submitted that the Tribunal has failed to notice and appreciate that the accident on a curve road mainly occurs when the centrifugal force is more than the direction and momentum force which makes the vehicle to move in a straight line instead of curved path and so in the present case, as the driver of KSRTC Volvo bus went straight 15 instead of curved path. Therefore, he submitted that the Tribunal has erroneously proceeded and tried to make out a new case for the claimants by ignoring proved facts. Also the Tribunal erred in holding that the driver of the insured lorry was negligent and had contributed to an extent of 70% to the accident. He further contended that the Tribunal failed to appreciate the findings recorded in MVC Nos.3838/2013, 2892/2014 which were confirmed in MFA Nos.5951/2015 and 5595/2015 (filed by KSRTC) which are binding.
16. Lastly, it was contended that the finding of the Tribunal on the aspects such as avocation and income contribution are erroneous in the absence of proper material evidence on record and hence, he prayed for the dismissal of the appeal filed by the claimants and to allow the appeal filed by the insurance company .
17. Having heard learned counsel for the respective parties and on perusal of material on record as 16 well as the original record, the following points would arise for our consideration:-
1. Whether the Tribunal committed an error in recording the finding on the aspect of contributory negligence by fixing the liability at 70% on the owner of the offending vehicle and 30% on the deceased -M.Nagaraju?
2. Whether the compensation awarded by the Tribunal requires any interference by this Court?
3. What order?
18. It is not in dispute that this Court had disposed of MFA No.933/2015 by remanding the matter to the Tribunal with a direction to permit both parties to adduce additional evidence/rebuttal evidence and to dispose of the petition in accordance with law. After remand, the first respondent remained absent and respondent Nos.2 to 4 appeared through their counsel. The legal Officer of respondent No.2 by name - Smt.Shoba was examined as RW-3 and she got marked Exs.R15 to R22. But the 17 claimants and respondent No.4 did not choose to lead any additional evidence.
19. The following facts are not in dispute: the first respondent is the owner of the truck bearing No.AP-26/TT-6676, second respondent is the insurer of the said lorry, and the third respondent is the owner of the KSRTC Volvo bus bearing registration No.KA-01/F-8300 and 4th respondent is the insurer of the KSRTC bus. There is also no dispute that the insurance of the lorry under respondent No.2 was in force at the time of accident. The accident occurred on 26.05.2013 at about 5.00 a.m. and M.Nagaraj was the driver of the KSRTC bus at the time of the accident, in respect of whose death the claim petition has been filed.
20. PW.1 had produced inquest mahazar, P.M.report and death certificate of M.Nagaraju. After taking into consideration the material evidence on record, the Tribunal has rightly held that M.Nagaraju, the driver of the KSRTC Volvo bus died in the accident. While answering 18 issue No.1, the Tribunal has analyzed the entire evidence on record and has held that the claimants are entitled to claim compensation to an extent of 70% only from the total award in view of the fact that the deceased - M.Nagaraju was responsible for the accident to an extent of 30%. The insurance company in their appeal has challenged the liability and has urged that the deceased - M.Nagaraju was solely responsible for the accident and that there was no negligence on the part of the driver of the lorry and hence, the Tribunal erred in fixing the liability to an extent of 70% on the insurance company and therefore contended that the judgment and award of the Tribunal is liable to be set aside.
21. In this background, the point which requires consideration by this court is, whether, the Tribunal was justified in fastening the liability to the extent of 70% on the owner of the lorry and 30% on the deceased - M.Nagaraju.
19
22. To understand the concept 'contributory negligence', the definition of the words 'negligence' and 'contributory negligence' have to be considered.
23. In Blacks Law dictionary, fifth edition, the meaning of 'contributory negligence' has been defined as follows:-
"Contributory negligence' - The act or omission amounting to want of ordinary care on the part of the complaining party, which concurring with defendant's negligence, is proximate cause of injury."
24. In Halsbury's Laws of England, third edition volume 28 at page 3, the meaning of 'negligence', and in page 87 the meaning of 'contributory negligence' have been described as follows:
"Negligence: Negligence is a specific tort and in any given circumstances is a failure to exercise the care which the circumstances demand."20
"Contributory negligence: In an action for injuries arising from negligence, it is a defence at common law if the defendant proved that the plaintiff, by some negligence on his part, directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. When this is proved the plaintiffs negligence is said to be contributory."
25. Further, the Hon'ble Supreme Court in the case of PRAMODKUMAR RASIKBHAI JHAVERI V. KARMASEY KUNVARGI TAK AND OTHERS reported in 2002 (6) SCC 455, has held that the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused and is of such a nature that it may properly be described as "negligence". Negligence ordinarily means a breach of a legal duty to take care, but when used in the context of the expression "contributory negligence" it does not mean breach of any duty, it only means the failure by a person to use 21 reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part and as an "author of his own wrong".
26. It is needless to observe that a finding of contributory negligence turns on a factual investigation - a variable factor in determining whether contributory negligence exists and, if so to what degree.
27. With the above legal position in mind, we proceed to consider the evidence on record.
28. Before we proceed to consider the oral evidence on record, it is necessary to note that the oral evidence of RWs-1 to 3 is not of much relevance in respect of contributory negligence, because they are not eye witnesses and are all Officials of the concerned Department and they have deposed on the basis of the records. Therefore, we have to re-appreciate the oral evidence of PWs-1 and 2 and the documentary evidence 22 and the extent of damage of the offending vehicle and KSRTC Volvo bus.
29. PW-1 is the wife of the deceased - Nagaraj. Though she is not an eye witness and has not witnessed the occurrence of the accident, she has denied the suggestion that there was no fault on the part of the driver of the lorry in causing the accident and that the accident took place solely due to rash and negligent driving of the lorry.
30. The evidence of PW-2, who is the only eye witness, in his cross-examination has stated that he was a passenger traveling in KSRTC Volvo bus on the date of the accident. He has deposed that he was sitting on the second row seat behind the driver on the right side of the bus and he saw the lorry prior to the accident which was at a distance around 100 feet. He denied that the KSRTC Volvo bus driver came towards extreme side and hit against the lorry. He also denied that the accident took place solely due to the negligence of the driver of KSRTC 23 Volvo bus and that there was fault on the part of the lorry driver also. This evidence of PW-2 is unchallenged and therefore, the Tribunal is justified in holding that there was no reason to discard evidence of PW-2 since there was no rebuttal evidence with regard to oral evidence of PW-2. Further, the Tribunal also considered the aspect that if the accident had occurred as shown in Ex.P2, then the vehicles could not have been damaged as stated in Ex.P3 i.e., IMV report.
31. As already stated above, the respondents are the Officers of the concerned Department i.e., the Insurance Company and KSRTC who have given evidence only on the basis of the records. In view of the fact that the respondents, witnesses are not the eye witnesses hence, their evidence is not of much assistance insofar as the aspect of contributory negligence is concerned. Therefore, the Tribunal is justified in coming to the conclusion that oral evidence of RWs.1 to 3 is not relevant. 24 Hence, this finding does not require any interference by this Court.
32. The Tribunal while analyzing the material evidence on record has taken into consideration the FIR, sketch, IMV report and final report. In the investigation report, the Investigating Officer had found that the KSRTC Volvo bus after passing the curve had gone to the extreme right side of the road and hit the truck which was coming from the opposite side on its left side. Ex.P2 is the rough sketch. The Motor Vehicle Inspector's Report (Ex.P3) regarding the details of damages sustained by the vehicle or vehicles due to accident are as under:-
EXTENT OF DAMAGE (COLUMN NO.8) IN THE IMV REPORT BUS BEARING REG.NO.KA-01-F-8300 TRUCK BEARING NO.AP-26-TT-6676 "Front Left Side of the Vehicle is "Front side of the vehicle is completely damaged upto the completely damaged. Entrance Conductor seat. Entrance Door is doors on either side of the vehicles totally sliced off. From roof to bottom are totally damaged. Wind screen bus totally sliced off upto Conductor glass broken." seat."25
33. In our view, the documents i.e., Ex.P2 - rough sketch, Ex.P3 - IMV Report and the particulars of the damage of the vehicles as mentioned in IMV report and the oral evidence of PW.2 are very vital to consider the aspect of contributory negligence. The sketch discloses that the KSRTC Volvo bus after passing the curve has gone to the extreme right side of the road and hit the truck which was coming from the opposite side on his left side. But the report also mentions that the KSRTC Volvo bus was damaged. Therefore, the Tribunal has held that Exs.P2 and P3 do not corroborate with each other as the contents thereof are inconsistent and only one eye witness was examined and his evidence discloses that the truck was coming in a rash and negligent manner and at a high speed at its extreme right side and hit the KSRTC bus. In view of the finding that Exs.P2 and P3 do not corroborate with each other, the Tribunal proceeded to consider the extent of damage of vehicles i.e., truck and the KSRTC Volvo bus in fixing the liability. The Tribunal has analyzed the extent of damage and has come to the conclusion that 26 the front side of the lorry was completely damaged, but, front left side of the bus was only damaged and the Tribunal also held that if, the accident had occurred as per the sketch (Ex.P2), then the full front side of the bus and not only right side of the bus would have been damaged, but that has not happened. Further, the Tribunal also observed that the rough sketch discloses that the road of accident was 'S' shaped road, and in that road, the bus was negotiating the up gradient of the road, and at that time, the truck filled with sand came on down gradient, and in such a situation and in view of curve 'S' shaped road, it is not possible for the bus moving towards up gradient in a rash and negligent manner as shown in the sketch. But it is possible for the lorry coming on down gradient in a rash and negligent manner. Therefore, the Tribunal is justified in considering the extent of damage of the vehicles. Further, in so far as the negligence aspect is concerned, the evidence of RWs.1 to 3 is of no relevance, because they are not the eye witnesses and all of them have deposed on the basis of the records. The 27 respondents have not examined any eye witness to prove Ex.P2. Therefore, the Tribunal has taken into consideration the police records i.e., Ex.P2 - sketch, Ex.P3 - IMV report, the extent of damage of vehicles and the oral evidence of PW.2, who is the only eye witness and has rightly come to the conclusion that the accident occurred due to the contributory negligence of both the driver of the bus and the truck.
34. It is pertinent to note that there was no rebuttal evidence to the oral evidence of PW.2. The Tribunal has also taken into consideration that the road where the accident occurred was a curve in 'S' shape road and the bus was negotiating an up gradient of the road. Therefore, in view of 'S' shape curve road, it was not possible for the bus to move towards up gradient rashly as shown in the sketch. On the contrary, it is possible that the lorry came down the gradient rashly. The Tribunal has also noticed that the bus was damaged only on the front left side up to conductor's seat, on the contrary the front side 28 of the lorry was damaged completely, both side doors were also damaged and wind screen glass was also broken. Therefore, the Tribunal is justified in not giving much importance to the oral evidence of RWs.1 to 3, they are the Officials of the concerned Department and they are not the eye witnesses. Hence, the Tribunal is justified in taking into consideration the extent of damage caused to the vehicles.
35. In the above backdrop of evidence, we observe that in the absence of ordinary care which a sentient being ought reasonably to have taken for his safety and which, had it been exercised, would have enabled him to avoid the injury of which he complains, or the doing of some act, which he ought not to have done but for which the calamity would not have occurred, contributory negligence is bound to be attributed.
36. Therefore, we are of the opinion that respondent No.2 - insurance company has failed to substantiate and prove the factum of rash and negligence 29 of driving by the KSRTC Volvo bus driver was to the extent of 100%.
37. Hence, we hold that the Tribunal was justified in holding that the accident had occurred due to the head on collision and on account of contributory negligence of the drivers of both KSRTC Volvo bus and lorry. In view of the above, the Tribunal was also justified in holding that the contributory negligence of the driver of the lorry was more than that of the driver of the bus. Though the claimants/appellants have filed the appeal, but they have not seriously challenged the finding with regard to the fastening of the liability to the extent of 30%. The Tribunal has not committed any manifest error in recording the finding on the issue of contributory negligence. Therefore, we are of the view that the Tribunal is justified in holding that it was a fit case of contributory negligence on the part of the driver of the lorry to the extent of 70% and thus justified in fixing the liability to an extent of 70% on the driver of the lorry and 30% on the driver of the KSRTC 30 bus. The reason given by the Tribunal are in accordance with the accepted principles of contributory negligence. Therefore, point No.1 is accordingly answered.
38. Next point is with regard to the quantum of compensation awarded by the Tribunal. The arguments submitted at the Bar by the respective counsel would not call for reiteration.
39. The Tribunal has awarded compensation of Rs.20,39,000/- on the following heads:
Heads Compensation
awarded by the
Tribunal (in Rs.)
Loss of dependency 18,69,000.00
Loss of consortium (1st 25,000.00
petitioner)
Loss of love and affection 80,000.00
(petitioner No.1 to 4)
Loss of Estate (petitioner No.1 40,000.00
to 4 Rs.10,000/- each)
Transportation of dead body 25,000.00
and funeral expenses
Total 20,39,000.00
31
40. It is not in dispute that deceased - M.Nagaraju was aged about 52 years and was working as a driver of KSRTC Volvo bus and was drawing net salary of Rs.21,230/-. The Tribunal, relying upon Ex.P6 has rightly assessed the income of the deceased M.Nagaraju at Rs.21,230/-. This finding of the Tribunal insofar as the income of the deceased is concerned does not require any interference by this Court as the Tribunal, has taken into consideration all the material evidence on record, in particular, the fact that the respondents before the Tribunal did not produce any material to discard the evidence regarding income of the deceased. Further, there was no rebuttal evidence with regard to the same. Therefore, we hereby accept the income of the deceased at Rs.21,230/- per month. However, in view of the latest dictum of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v.
PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, when the deceased is above 50 years of age, only 15% of the income has to be added towards future 32 prospects. If 15% of the income towards future prospects is added to the monthly income of Rs.21,230/- is Rs.24,415/- per month. Claimant No.2 is a married daughter of the deceased. Therefore, she is not considered as a dependant of the deceased. Therefore, claimant Nos.1, 3 and 4 only are considered as dependants of the deceased. The claimants are three in number. Therefore, 1/3rd of the income of Rs.24,415/- (Rs.8138) has to be deducted towards personal expenses of the deceased, it comes to Rs.16,277/-. When the same is annualized and multiplied by '11', it comes to Rs.21,48,564/-. Hence, we propose to award Rs.21,48,564/- as against Rs.18,69,000/- awarded by the Tribunal on the head of 'loss of dependency'.
41. Having regard to the judgment of the Hon'ble Supreme Court in the case of PRANAY SETHI, claimant No.1, the widow of the deceased is entitled to Rs.40,000/- towards 'loss of spousal consortium'. Since claimant No.2 is the married daughter of the deceased, she is entitled to 33 compensation towards 'loss of love and affection' to an extent of Rs.30,000/-. Claimant Nos.3 and 4 of the deceased are awarded a sum of Rs.30,000/- each towards 'loss of parental consortium'. A sum of Rs.15,000/- is awarded on the head 'loss of estate' and another sum of Rs.15,000/- is awarded towards 'funeral expenses'. In all, claimants are entitled to Rs.22,78,564/- + Rs.30,000/-. The reassessed compensation is as under:
HEADS Compensation awarded
by this Court (in Rs.)
Loss of dependency 21,48,564.00
Loss of consortium 40,000.00
Towards loss of parental 60,000.00
consortium @
Rs.30,000/- each to
claimant Nos.3 and 4
Towards loss of love and 30,000.00
affection
Loss of estate 15,000.00
Towards funeral 15,000.00
expenses
Total 23,08,564.00
Said re-assessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
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42. In view of the confirmation of the percentage of contributory negligence in the ratio 70:30, Respondent No.2 / insurance company is liable to pay to an extent of 70% only of the re-assessed compensation and the claimants are not entitled to the rest of the compensation since the deceased is held to be negligent in causing the accident to an extent of 30%.
43. The Tribunal while computing the compensation has apportioned in favour of claimant Nos.1 to 4. But claimant No.2, being a married daughter and is not a dependant of the deceased. Therefore, the apportionment is modified as under:-
44. The aforesaid compensation, minus Rs.30,000/- awarded to the married daughter of the deceased, shall be apportioned between the widow and claimants Nos.3 and 4 of the deceased in the ratio of 80:10:10. The married daughter of the deceased shall be entitled to Rs.30,000/- only.
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75% of the compensation awarded to the widow of the deceased shall be deposited in any Post Office and / or Nationalized Bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
The entire compensation awarded to the claimant Nos.3 and 4 shall be released to them after due identification.
The enhanced compensation with upto date interest at the rate of 6% per annum from the date of claim petition till realization shall be deposited by the insurer within a period of four weeks from the date of certified copy of this judgment.
45. In the result, MFA No.3554/2017 filed by the claimants is allowed-in-part, while MFA No.2737/2017 filed by the insurance company is dismissed. 36
Parties to bear their respective costs.
The amount in deposit shall be transmitted to the Tribunal forthwith.
Office is directed to transmit the original records to the concerned Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE VMB