(Prayer: This MFA is filed u/s 173(1) of MV Act, against the Judgment and Award dated: 11/09/2007 passed in MVC No.585/2000 on the file of the Civil Judge (Sr.Dn.) and JMFC, Additional MACT, Madhugiri, partly allowing the claim petition for compensation and seeking enhancement of compensation.)
1. This appeal by the claimants is directed against the judgment and award dated 11th September 2007, passed in MVC No.585/2000, by the Civil Judge (Sr.Dn.) and JMFC, Additional Motor Accident Claims Tribunal, Madhugiri, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of `1,55,000/- awarded in favour of the claimants as against their claim for `5,00,000/-, is inadequate.
2. The facts in brief are that, the claimant No.1 is the wife and claimant Nos.2 to 4 are children of deceased Siddappa. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 11:15 A.M. on 18-05-2000, when the deceased was sitting on the top of the bus with bundles of Hay along with two other persons, he met with an accident, near Bychapura village, on Koratagere Gowribidanur Road, on account of rash and negligent driving by the driver of the Bus, bearing registration No.TN-39/9266. Due to the impact, the deceased sustained grievous injuries and he was immediately shifted to Government Hospital, Koratagere and thereafter to NIMHANS Hospital, Bangalore. But, unfortunately, he succumbed to the injuries, while under treatment in the said Hospital.
3. It is the case of the appellants that, the deceased was aged about 45 years and was working as a Mason and also doing milk vending business, earning a sum of `6,000/- per month and was hale and healthy prior to the accident. On account of the untimely death of the deceased Siddappa, the first appellant has lost her life partner, the children have lost the love and affection, social and moral support and therefore, they have to be compensated reasonably.
4. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 11th September, 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `1,55,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation.
5. I have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for the parties, for quite some time.
6. After hearing learned counsel for the parties, and after careful perusal of the judgment and award passed by the Tribunal, the points that arise for consideration are:
I) Whether the quantum of compensation awarded by Tribunal is just and reasonable?”
II) Whether the Tribunal is justified in fastening the entire liability on the owner of the offending vehicle?
Re-Point I):The occurrence of accident and the resultant death of the deceased are not in dispute. It is also not in dispute that he aged about 45 years and working as mason. He has left behind wife and three children. It is stated that the deceased was also doing milk vending business. But in the absence of the credible documentary evidence, the Tribunal has assessed the income of the deceased at `3,000/- per month. The same is on the lower side. The accident is of the year 2000. Therefore, having regard to the age, avocation, number of dependents and also the year of accident. I re-assess the income of the deceased at `4,000/- per month. Even though the number of dependents are four and 1/4th has to be deducted, I deduct 1/3rd towards personal expenses of the deceased, since all the children are major. Accordingly, if 1/3rd (i.e. `1,333/-) is deducted from `4,000/- towards his personal expenses, the net income would be `2,667/- per month. Since the deceased was aged about 45 years, the proper multiplier applicable is ‘14’ as per the decision of the Hon’ble Apex Court Sarla Verma’s case (2009 ACJ 1298). Thus, the compensation towards loss of dependency would work out to `4,48,056/- (i.e. `2,667/- x 12 x ‘14’) as against `1,20,000/- awarded by Tribunal.
7. Further, the Tribunal has erred in awarding a sum of only `35,000/- towards conventional heads. The same is on the lower side. As per the decision of the Apex Court in Sarla Verma’s case (supra), I award a sum of `45,000/- towards conventional heads, such as loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses as against `35,000/- awarded by Tribunal.
8. Thus, the total compensation would come to `4,93,056/- as against `1,55,000/- awarded by Tribunal with interest at 6% per annum, from the date of petition till the date of realization. There would be enhancement of compensation of `3,38,056/- with 6% interest.
Re-Point II): So far as fastening the entire liability by the Tribunal on the owner of the offending vehicle is concerned, it is significant to note that, the Insurance Company in its written statement apart from stating that the deceased himself contributed to the accident, stated that the Insurer is not liable to pay the compensation as there was negligence on the part of the driver and conductor on the bus and prayed for dismissal of the claim petition. Further, it is relevant to note that, PW2, Aswatha, who is an eye witness, deposed that the death of the deceased was due to the fact that when he was avoiding the trees which were about to touch him on the top, the deceased fell down and sustained injuries both on the right nose and ear and later on succumbed to the same. In the cross examination, it is elicited from PW2, who is an eye witness, that the deceased was sitting on the top of the bus and the accident has taken place when he fell down and that itself infers about the negligence on the part of the deceased himself and also the conductor and the driver of the bus, who allowed him to sit on the top. Therefore, having come to the conclusion that, apart from the deceased, the driver and the conductor of the bus were also responsible for occurrence of accident and the resultant death of the deceased, the Tribunal ought not to have fastened the entire liability on the owner of the offending vehicle. It an further be seen that the Insurer has neither adduced any evidence nor produced documentary evidence in support of its case.
9. The Hon’ble Apex Court in the case of Shivleela and others Vs. Karnataka State Road Transport Corporation, Bangalore (2003 A.I.R. KANT.HCR.2450 Division Bench), observed that the passenger was travelling on the roof top of the bus and the driver and conductor pleaded that they did not have any knowledge about the deceased having climbed the bus and it was held that the accident was the result of contributory negligence on the part of the deceased as well as the driver and the conductor of the bus and fixed the percentage of negligence between them in the ratio of 50:50.
10. In the case of Managing Director KSRTC and another Vs. Smt. Sunanda and another reported in 2004 (2) HCCR 741 (division Bench), the Apex Court held that it was the duty of the conductor and the driver of the bus to have noticed if there were any passengers on the roof top and asked them to alight from the roof top and board the bus. The conductor of the bus has to comply with the statutory duty and the driver of the bus was also enjoined with the duty to ensure that the bus moves only after there was safe travelling condition for the passengers. It was held that since there was no evidence to show that the deceased had refused to alight from the roof top, in spite of the directions from the driver or the conductor or that he was cautioned about the risk, no negligence was fixed on the deceased.
11. But, in the case on hand, nothing oral or documentary evidence as such is forthcoming to show that either the driver or the conductor of the bus cautioned the deceased not to travel on the roof top of the bus nor the contra evidence to show that the deceased refused to alight from the roof top of the bus. On the other hand, the oral and documentary evidence adduced clearly goes to show that the deceased was travelling on the roof top of the bus and he fell down from the same, sustained grievous injuries and consequently succumbed to the same. There is no dispute regarding the occurrence of the accident and the resultant death of the deceased, who was travelling on the roof top of the bus.
12. In this regard, a full bench of this Court, in the case of North East Karnataka Road Transport Corporation Vs. Vijayalaxmi in M.F.A.No.141/2005, disposed of on 30th September 2011, after referring to the aforesaid two decisions, has observed that the conductor or the driver of the owner of the bus must specifically plead the contributory negligence and in support of the said plea, must adduce evidence and if such evidence is adduced, then the Court has to appreciate the material on record and decide the question as to the extent of contributory negligence for the accident.
13. Further, it an be seen that Section 123 of the Motor Vehicles Act stipulates that no person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. In the instant case, admittedly the deceased was travelling on the roof top of the bus and there is no oral or documentary evidence to show that either the driver or the conductor of the bus took due care and caution to see that no person is carried on the roof top of the bus. Further, it is not in dispute that as on the date of accident, the vehicle in question was duly insured and there is no such evidence, oral or documentary adduced by the Insurer, to substantiate its case that they are not liable to pay the compensation. Further, it is also not the case of the Insurer that the policy was not covered by insurance and that the driver of the vehicle did not possess a valid driving licence.
14. Therefore, having regard to the facts and circumstances of the case and after analyzing various decisions of the Hon’ble Apex Court and in the light of the opinion expressed by the full bench of this Court. I deem it fit and proper to apportion the liability in the ratio of 50:50, jointly and severally on the part of the driver, conductor and the owner of the bus on the one hand and on the part of the Insurer on the other hand.
15. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part.
I) The impugned judgment and award dated 11th September 2007, passed in MVC No.585/2000, by the Civil Judge (Sr.Dn.) and JMFC, Additional Motor Accident Claims Tribunal, Madhugiri, is hereby modified, awarding a sum of `3,38,056/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.
II) The order of the Tribunal fixing the entire liability on the owner of the offending vehicle is hereby set aside;
III) The entire liability is apportioned in the ratio of 50:50 on the part of the driver and conductor/owner of the bus, jointly and severally on the one hand and on the part of the Insurer of the offending vehicle on the other;
IV) The third respondent/Insurer is directed to deposit 50% of the total compensation awarded by this Court with interest at 6% per annum, within three weeks from the date of receipt of copy of the judgment and award.
V) The driver and conductor and the Owner of the offending vehicle are jointly and severally liable to deposit 50% of the total compensation with interest, within four weeks from the date of receipt of a copy of this judgment and award.
VI) Immediately on such deposit by the Insurer as well as the owner, 50% of the enhanced amount with proportionate interest shall be deposited in the name of the first appellant-wife of the deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by another ten years, with liberty reserved to her to withdraw the periodical interest.
Remaining 50% of the enhanced compensation with proportionate interest shall be released in favour of the appellant Nos.1 to 4, in equal proportion, immediately.
The apportionment ordered by the Tribunal for the compensation awarded by it remains undisturbed.
Office to draw award, accordingly.