Karnataka State Road Transport Corporation Vs. Duttaiah and anr. - Court Judgment

Excerpt:
(a) motor vehicles act, 1988 (59/88) - section 123 - foot board travel - ksrtc alleging foot board travel and therefore contending that they are not liable to pay compensation - no evidence either documentary or oral lead by the ksrtc in this aspect - the deceased while he was on foot board, and even before he could get over the foot board and enter the bus, the driver apparently moved the bus and because of this fact the finding attributing actionable negligence on the driver is justified, which does not call for interference.; (b) motor vehicles act, 1988 (59/88) - section 166 - multiplier to be applied - deceased's mother aged 45 and father aged 50 - multiple '13' is the appropriate multiple and not multiple 17 and therefore the loss of dependency accordingly gets modified.; appeal allowed in part. - karnataka panchayat raj act, 1993.[k.a. no. 14/1993]. sections 43 & 168: [mohan shantanagoudar, j] membership of gram panchayat- held, seat of member becomes vacant on expiry of fifteen days from date of receipt of such resignation, unless he withdraws resignation letter. where there is nothing on record to show that petitioner had withdrawn his resignation letter subsequently, petitioner had vacated his office as a member of gram panchayat within fifteen days from the date of his letter as prescribed under law. burden of proof heavily lies on one who files a petition for declaring the seat vacant. impugned order passed by state election commissioner declaring that seat of petitioner has become vacant based on assumptions and surmises is liable to be quashed. -- sections 167(2) & 168 (2): member of gram panchayat power of state election commission to declare seat as vacant on report made to it held, sections 167(2) and 168(2) of the act would indicate that the state election commission, on a report made to it, shall declare the seat of a person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned. the word report found in the aforesaid sections cannot be read as official report. the act, furnishes a complete machinery in itself for the better administration and supervision of panchayats. if the word report is to be read as official report, them, the official before giving such report will have to conduct mini enquiry, inasmuch as he cannot send the report blindly without application of his mind and without hearing the parties. such mini enquiry is not contemplated under the act and the same is not the intention of the legislature also. the legislation consciously is silent about two tier enquiry. courts will not legislate under the garb of interpreting the existing law. the court has to interpret the word report in its ordinary popular sense, consistent with the context. viewed from popular sense of the term report, particularly in the context in which the said word, it is clear that the report simpliciter, which means anybody can approach by filing petition or by reporting to the state election commission. -- section 167(2): membership of gram panchayat dispute as to vacant seat complaint lodged by respondents with allegation that petitioner has not resigned within stipulated period from date of notification after getting himself elected as a member no allegation of corrupt practice or any criminal charge held, proceeding in question against petitioner is not quasi-criminal in nature. standard of proof required is not beyond reasonable doubt. matter has to be decided on the basis of preponderance of probabilities. -- section 168(2): election to panchayat adjudication of disputes arising between parties parties consenting for recording their statements on oath before state election commissioner held, state election commissioner has got jurisdiction to record statements on oath. though the commissioner is required to adjudicate disputes between parties judiciously, he cannot be termed as court for purpose of section 168 (2) of the act. there is no question of violation of principles of natural justice or mandatory requirement of law under section 168(2). plea that state election commissioner has no power to administer oath and record evidence, inasmuch as said power is not conferred expressly on him by act is not tenable. - it is well-settled that a duty is cast on the conductor of the bus to give a signal to the driver to proceed only after he ensures that passengers are within the bus and are found either standing or sitting inside the bus.ram mohan reddy, j.1. the management of the k.s.r.t.c. has preferred this appeal under section 173(1) of the motor vehicles act, 1988 (for short, the 'act'), calling in question the judgment and award dated 2-11-2001 in m.v.c. no. 216 of 1998 on the file of the additional civil judge (senior division) and additional mact, hassan (for short, the 'mact).2. brief facts leading to the filing of this appeal are:on 26-10-1998 one chandraiah was travelling as a passenger in a k.s.r.t.c. bus bearing no. ka-25-f-278 from hassan to ugane. when the bus stopped near dyavegowdanahally high school in order to allow the school children to get into the bus, driver of the said bus without waiting for the signal to be given by the conductor moved the bus in a rash and negligent manner, at a high-speed, as a result of which chandraiah who was on the footboard fell out of the bus sustained grievous injuries and later succumbed to the same. the jurisdictional police prosecuted the driver of the bus and charge-sheeted him for rash and negligent driving.3. it is claimed that the deceased was aged about 22 years on the date of the accident, was unmarried and an employee of a courier service on a monthly salary of rs. 2,000/-. the deceased left behind his parents - the claimants' viz., the mother smt. kamalamma and the father sri duttaiah. the parents filed a claim petition under section 166 of the motor vehicles act seeking compensation of rs. 4 lakhs. the k.s.r.t.c. owner of the motor vehicle, assigned as respondent entered appearance and filed its statement of objections resisting the claim.4. the mact recorded the evidence of the 1st claimant as p.w. 1, an eye-witness as p.w. 2 and also marked nine documents as exs. p. 1 to p. 9. whereas, the respondent did not either lead oral evidence or produce any documents.5. on the basis of the aforesaid pleadings of the parties, the mact framed the following issues:1. whether the petitioners prove that their son chandraiah died in an accident on 26-10-1998 at 4 p.m. caused by the rash and negligent driving of the k.s.r.t.c bus by its driver near dyavegowdanahally?2. whether the petitioners are entitled for compensation, as claimed?3. for what order?6. on appreciating the oral and documentary evidence placed before it, by the claimants, the mact recorded a finding of actionable negligent on the part of the driver of the bus belonging to the appellant-k.s.r.t.c. and awarded total compensation of rs. 2,70,000/- together with interest at 6% per annum. the appellant-corporation being aggrieved by the said judgment and award has preferred this appeal.7. the learned counsel for the appellant sri motigi, while assailing the findings of actionable negligence on the part of the driver of the bus would contend that the deceased had also contributed to the negligence by standing on the footboard of the bus and therefore the mact had committed anillegality in recording a finding attributing negligence on the driver. dialatingthe said contention he would point out that section 123(2) of the act prohibitsperson from travelling on the footboard of the bus and therefore no liabilitycould be foisted on the appellant-corporation. he would also contended thatthe mact white applying multiple '17' had taken the age of the deceasedinstead of applying multiple '13' corresponding to the age bf the mother whowas about 45 years. he also contends that the mact has taken 50% of theincome towards personal expenses of the deceased.8. smt. kavitha, learned counsel appearing for the respondents-claimants while supporting the findings contends that the mact was fully justified in applying multiple '17' in accordance with second schedule of the act. additionally, she would maintain that the mact was justified in deducting 1/3rd of the income towards personal expenses of the deceased as the respondents were residing in rural area and placed reliance on a decision of this court in the case of smt. gullamma and anr. v. basheer sab and anr. 2000(2) kar. l.j. 393 : ilr 2000 kar. 11569. having heard the learned counsels for the parties, two questions arises for determination in this appeal: (1) whether the mact was justified in attributing actionable negligent on the part of the driver of the bus in the facts and circumstances of the case and evidence on record? (2) whether the award of rs. 2,70,000/- as compensation is not justified in the facts and circumstances of the case? if so to what just compensation the claimants are entitled to?10. point no. 1.--the 1st claimant having examined himself as p.w. 1 reiterated the statement made in the claim petition and examined another witness as p.w. 2 who is said to have travelled in the said bus along with the deceased chandraiah. this witness testifies that when the bus stopped near dyavegowdanahally to enable the children to board the bus and before the signal to proceed was given by the conductor the driver of the bus moved the bus at a high-speed and in a rash and negligent manner, as a result of which chandraiah who was on the footboard fell out of the bus. nothing is elicited in the cross-examination of this witness to disbelieved the statements much less discredit his evidence. it is also in evidence neither the appellant nor the driver or conductor of the bus is examined in support of the case of the k.s.r.t.c. and to indicate their stand. it is well-settled that a duty is cast on the conductor of the bus to give a signal to the driver to proceed only after he ensures that passengers are within the bus and are found either standing or sitting inside the bus. there is absolutely no evidence forthcoming by the appellant to show that there was negligence on the part of the deceased while he was on the footboard at the time when the driver of the bus moved the same in a rash and negligent manner. in addition, it is also noticed that the driver of the bus was prosecuted for rash and negligent driving under the provisions of the indian penal code. while it is true that under sub-section (2) of section 123 of the act, no person shall travel on the footboard of the bus but in the facts of the present case, the deceased was not travelling on the footboard on the contrary while he was on the footboard, and even before he could get over the footboard and into the bus, the driver apparently moved the bus, therefore it is not possible to accept the contention of the learned counsel for the appellant that the deceased had contributed to the negligence. the mact having considered the entire evidence, recording its finding on issue 1. the finding attributing actionable negligence on the driver of the bus is justified on the material available on record and does not warrant interference by this court.11. there is considerable force in the contention of the learned counsel for the appellant that the mact erred in law in awarding total compensation of rs. 2,44,800/- by applying multiple '17', instead of '13', while computing the loss of dependancy. the established facts are that the claimants the father aged about 50 years, mother aged about 45 years, are residents of salagame post, hassan taluk and the deceased had a monthly income of rs. 1,800/-. the mact was justified in deducting 1/3rd of the income of the deceased towards his personal expenses, keeping in mind the fact of the deceased being a resident of rural area. this finds support from a judgment of this court in the case of smt. gullamma, supra, following the decision of the division bench of this court in the case of lakshman and anr. v. susheel chand choudhary and anr. : ilr1996kar2337 (db), where in it is held that in respect of bachelors living in rural areas it would be appropriate to deduct 1/3rd towards personal expenses since their expenses will be less than those people residing in urban areas.12. applying the said principles and taking into consideration the monthly income of the deceased at rs. 1,800/- and after deducting 1/3rd towards personal expenses the monthly loss of dependency would be rs. 1,200/- and the annual loss of dependency would be rs. 14,400/- applying multiple '13' being the appropriate multiple for age 45 of the mother as the claim petition is one under section 166 of the act, the total loss of dependency is rs. 1,87,200/-.13. learned counsel for the appellant did not question the award of compensation of rs. 10,000/- towards loss of expectation of life; rs. 3,000/-towards funeral expenses; and rs. 2,000/- towards transportation charges. hence, there is no need to interfere with the said finding.14. in the result and for the reasons set out supra, the appeal is allowed in part and in substitution of the impugned judgment and award, the respondents-claim ants are entitled to a sum of rs, 2,02,200/- under the following heads:(rs.)1. loss of dependency 1,87,200/-2. loss of expectation of life 10,000/-3. funeral expenses 3,000/-4. transportation charges 2,000/-total 2,02,200/-together with interest at 6% p.a. from the date of petition till the date of payment. the appellant-corporation is directed to deposit the compensation amount, minus the amount already deposited within the period of six weeks from the date of receipt of a copy of this order and on such deposit being made the mact shall invest/disburse the amount in the very same proportion as specified in the impugned award.in the peculiar facts of this case the parties are directed to bear their own costs.