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Judgment
S.N. Satyanarayana, J.
The first respondent in MVC No. 6235/2009 on the file of MACT, Bengaluru (SCCH-14) has come up in this appeal impugning the judgment dated 22.07.2010 in allowing the said claim petition filed by the wife and mother of deceased Ashwath @ Thimaraya who died in the road accident. In this appeal the claimants have preferred cross objectors in MFA. Crob No. 30/2015. This appeal and cross objection have come up for admission in the presence of learned counsel Sri. D. Vijayakumar, for APSRTC and learned counsel Sri. N. Gopalakrishna for the claimants.
The brief facts leading to this appeal and cross objection are as under:
"The case of the claimants are that on 27.05.2009, at about 8.30 p.m., vehicle bearing No. WB 41 B 7580 was driven by deceased Ashwath when the said vehicle was plying on NH-4 towards Kolar, near Kamath Hotel, Narasapura, suffered break down. To repair the said vehicle deceased Ashwath stopped another vehicle which was coming in the same direction. The said vehicle bearing No. KA-07-6269 was parked behind the brake down vehicle. Deceased Ashwath borrowed tools from the driver of another vehicle for repairing his vehicle. At that time both the vehicles driven by Ashwath and the vehicle which was stopped to assist Ashwath for repairing his vehicle were parked on the extreme left side of NH-4, i.e., partially on the mud road. According to claimants at that relevant time, bus bearing No. AP-28-Z-3245 belonging to the Appellant Corporation came from West to East in a rash and negligent manner and while negotiating the place where these two vehicles were parked, hit the vehicle bearing No. KA-07-6269 which is insured with the fourth respondent in these proceedings. As a result, the said vehicle moved with full force and hit the vehicle belonging to the deceased which was being repaired by him at that time. Due to impact the brake down vehicle moved over Ashwath, driver of the said vehicle and killed him on the spot."
In the proceedings before the Tribunal, the appellant herein took up a defence that the accident has not taken place as stated by the claimants. It is the specific case of the appellant herein, who is the first respondent in the claim petition before the Tribunal is that, on the relevant date, when the accident took place, it was raining heavily, the aforesaid two vehicles were parked in the middle of the road without the parking light put. Hence, the vehicles parked could not be seen, in the process, his vehicle just touched the vehicle bearing Reg. No. KA-07-6269, which according to him was parked about 5 to 10 feet away from the place where the break down vehicle was parked. According to him, the slight touch between his vehicle and another vehicle would not have resulted in the said vehicle moving forward and hitting the brake down vehicle resulting in the death of its driver Ashwath. According to appellant, the entire case of the claimants is cooked up for the sake of securing compensation before the MACT.
In the said proceedings, it was observed by the Tribunal that, the complaint was lodged within two hours from the time of the accident by the owner of the brake down vehicle. The same was registered as per Ex. P1, based on which, FIR is registered. Both the vehicles are inspected and report was submitted. The sketch of the accident spot was drawn as per Ex. P4. In the said proceedings, on behalf of claimants, it is only the widow of the deceased who adduced evidence. On behalf of the contesting respondent, namely the Appellant Corporation, its driver who was driving the vehicle at the relevant time of the accident was examined as RW1.
The Trial Court, on appreciating the material available on record has come to the conclusion that the accident has taken place as contended by the claimants in the claim petition and proceeded to award compensation to the claimants in a sum of Rs. 7,40,000/- as against the claim for Rs. 15 Lakhs and further ordered that the same shall be paid with interest at 6%. Being aggrieved by the same, the present appeal is filed by the first respondent, in the said proceedings contending that the finding of Tribunal in fastening the liability on the appellant herein is erroneous by not taking into consideration the relevant material which would indicate non-involvement of the vehicle of Corporation.
To ascertain the same, this Court secured and perused the Lower Court records in detail. On going through the same, it is seen, there is nothing on record to show that an attempt is made by the driver of the Appellant Corporation in stating that there was no accident involving his vehicle and other two vehicles and that even before the vehicle reaching brake down vehicle, Ashwath was already dead due to collusion between his vehicle and the vehicle insured with the fourth respondent. Infact, the evidence of RW-1 clearly establishes that there is total inconsistency between the defence taken in the written statement filed by Appellant APSRTC and the evidence adduced to substantiate the same. In the written statement, it is stated that at the relevant time of the accident, it was raining heavily and RW-1 could not see anything and the same version is taken in the examination-in-chief also. When it comes to cross-examination, it is stated that at the time of the accident, the rain had completely stopped and the vehicles were parked on the left side of the road. In addition to that learned counsel Sri. Vijayakumar also stated that an attempt was made by Appellant''s driver to file a complaint against other two vehicles and the same was not received by the police. However, in the cross-examination, in unequivocal terms, RW-1, driver of the vehicle would admit that there was no attempt made by him to file a complaint before the police against other two vehicles, which goes contrary to the defence which is taken.
In that view of the matter, this Court finds that though the Appellant has taken aforesaid defence, it has not placed any substantial evidence on record to demonstrate that there was already an accident between the vehicle driven by Ashwath and the vehicle insured with the fourth respondent and that the vehicle of the appellant was framed in the police complaint to file claim petition for the purpose of compensation. In that view of the matter, this Court is unable to find fault with the reasoning given by the Tribunal in upholding that the accident is caused by Appellant''s driver and consequently allowing the claim of the widow and mother of the deceased Ashwath, driver of the break down vehicle bearing No. WB 41 B 7580. In that view of the matter, no substantial grounds are made out to admit this appeal. Accordingly, it is dismissed.
MFA.CROB. No. 30 of 2015
In view of the appeal filed by APSRTC challenging the liability being dismissed, the cross-objection which is filed by the claimants for enhancement of compensation is taken up for consideration.
Admittedly, the deceased was driver of a heavy vehicle and the accident has taken place in the year 2009. Admittedly, the income of driver at the relevant time could not have been Rs. 5000/-. As stated by learned counsel, Sri Gopal Krishna, the income of driver could be safely taken at Rs. 7000/- instead of Rs. 5000/- taken by the Tribunal. It is also not in dispute that in several cases, this Court and Apex Court have consistently taken a view that the compensation under the conventional heads i.e., loss of consortium, loss of love and affection, loss of estate, funeral and obsequies, all considered together, is to be awarded at Rs. 1,25,000/-. In the instant case, expenses towards transportation of dead body from the place of the accident to the place of the residence of the deceased was also incurred. In that view of the matter, this Court feel that it is safe to take compensation payable under the conventional heads and the head ''expenses incurred for transportation of dead body'' together at Rs. 1,25,000/-. If that is taken into consideration, compensation that is required to be enhanced is as under:
"(i) Towards loss of dependency to the claimants, the compensation is: Rs. 7000 x 12 x 17 x 2/3, which comes to Rs. 9,52,000/-.
(ii) Compensation towards loss of consortium, loss of love and affection, loss of estate, funeral and obsequies and transportation of dead body together is awarded at Rs. 1,25,000/-."
Accordingly, Cross-objection is allowed in part. The compensation awarded by the Tribunal at Rs. 7,40,000/-is enhanced to Rs. 10,77,000/-. Claimants-cross objectors are entitled to interest at 6% per annum on the enhanced compensation of Rs. 3,37,000/- from the date of petition till the date of payment of the entire amount. So far as the enhanced compensation is concerned, the same shall be distributed between 1st and 2nd claimants in the same ratio as held by the Tribunal i.e., 75% to the widow and 25% to the mother of the deceased. The amount in deposit is ordered to be transmitted to the Tribunal and Tribunal shall release the amount in favour of the cross objectors - claimants on proper identification.
Learned counsel, Sri Narayanappa, who appeared on behalf of the 4th respondent and learned counsel, Sri D. Vijaya Kumar, who assisted this Court on behalf of respondent No. 1-APSRTC in Cross-Objection are permitted to file vakalath in Cross-Objection within two weeks from today.