Beebee Halima Begum vs Shankar

A.V. Chandrashekara, J.—By consent of the learned counsel appearing for the parties, the matter is taken up for final hearing and is being disposed of by this judgment.

The main appeal bearing MFA No. 30127/2012 is an appeal filed by the claimants of a case bearing MVC No. 265/2010, which was pending on the file of MACT-II at Yadgiri. The connected appeal is filed by the NEKRTC - the owner of the offending bus. Since both the appeals have arisen out of the judgment and award passed in MVC No. 265/2010 dated 15.09.2011, they are taken up together for common discussion.

Heard the learned counsel appearing for the parties and perused the judgment and the records produced by the learned counsel appearing for the NEKRTC.

One Mohd. Ismail died in a road accident, which occurred on 21.06.2010 at about 10.30 a.m. in Yadgiri Town near Mahalaxmi Way Bridge cross. Claimants are his wife and son respectively. According to them, the accident took place solely due to the negligence of the driver of NEKRTC bus bearing No. KA.33/F.34. According to the claimants, deceased was earning a sum of Rs. 10,000/- per month and as a result of his death, they have been put to great inconvenience and hardship.

NEKRTC has filed detailed written statement, denying all the material averments and has called upon the claimants to prove the accident that took place, the negligence attributed to the driver of NEKRTC bus, the loss of dependency, the probable income of the deceased etc. According to them, the deceased was proceeding on a motorcycle along with pillion rider and he drove his motorcycle in a rash and negligent manner and dashed against the bus and therefore, he was solely responsible for the accident and that this aspect of the matter has been ignored by the Tribunal.

According to the learned counsel appearing for the NEKRTC, the sketch prepared by the police at the time of visiting the scene of occurrence has not been properly taken into consideration and that the same is self explanatory. According to him, the compensation awarded is excessive and therefore, there must be drastic reduction in the compensation awarded by the Tribunal.

The Tribunal has awarded in all a sum of Rs. 4,16,000/- as compensation. The loss of dependency is assessed at Rs. 2,16,000/-. A sum of Rs. 1,50,000/- is awarded under the head "medical expenses-incurred". Loss of consortium, loss of love and affection and loss of estate have been considered and a sum of Rs. 10,000/-, Rs. 20,000/- and Rs. 10,000/- each have been awarded respectively under these heads. A sum of Rs. 10,000/- is awarded towards funeral expenses.

According to the learned counsel for the claimants, the compensation so awarded is quite inadequate, in view of the fact that the deceased was admittedly aged about 56 years and was quite hale and healthy and was the main earning person in the family. Hence, it is requested to assess his probable income atleast at Rs. 6,000/- per month and to award reasonable compensation under conventional heads.

Admittedly, the deceased was aged 56 years. The claimants are his wife and son. The fact that he died in a said accident is not disputed. What is disputed is about the negligence attributed to the driver of the NEKRTC bus.

Learned counsel appearing for the NEKRTC has relied upon the certified copy of the sketch prepared by the Investigating Officer conducting investigation in CR. No. 112/2010 of Yadgiri Rural Police Station. It discloses that the bus bearing No. K.33/F.34 was on the right side of the road leading on Yadgiri-Hyderabad road, in its vicinity, the motorcycle was lying. This is marked as Ex. P6 in the Tribunal.

Admittedly, the bus was coming from Hyderabad side towards Yadgiri i.e., from East to West. The motorcycle was found lying at a few feet away from the bus on the left side of the road leading from Hyderabad to Yadgiri.

What is argued before this Court is that, unless the motorcyclist had come to the extreme side of the road, this accident could not have taken place and therefore, the deceased himself was responsible. Merely on the basis of position of the vehicles, the exact place where the accident took place cannot be ascertained.

Ex. P5 is the certified copy of the spot panchanama. The best person who can speak about the contributory negligence is the driver of the bus himself. Mr. Shanker - the driver of the bus is examined as R.W. 1.

Admittedly, the road was leading from the West to East and it is a straight road. Shanker - the driver of the bus has admitted in his cross-examination that he observed the motorcycle at a distance. If he had seen the motorcycle coming from the opposite side near his bus, he should have slowed down the bus. The motorcyclist had almost reached the southern side of the road and this indicates that the diver of the bus, inspite of noticing the motorcycle coming to the southern edge, did not slow down his vehicle and thereby, caused the accident.

The Tribunal has made a clear discussion about the negligence attributed to the driver of the bus. Therefore, the Tribunal has properly assessed the evidence and has come to the conclusion that the driver of the NEKRTC bus was solely responsible for the accident in question and that finding cannot be found fault with. Even otherwise, there is no reason to suspect the genuineness of the contents of charge-sheet filed against the driver Shanker by the police.

The Tribunal has considered the age of the deceased as 57 years. The proper multiplier applicable to a person aged between 56-60 years would be 9.

The Tribunal has assessed the approximate income of the deceased at Rs. 3,000/- per month. Admittedly, the accident took place on 21.06.2010. Daily wages for a person working under Mahatma Gandhi National Rural Employment Guarantee Scheme would be about Rs. 190/- per day. If that is taken into consideration, the minimum of his income should have been atleast Rs. 5,000/- per month. The Tribunal has assessed the monthly income of the deceased at Rs. 3,000/- per month and the same is definitely on the lower side.

Admittedly, the deceased was hale and healthy and was an agriculturist, having two persons dependent on him. Therefore, on the basis of broad preponderance of probabilities, his monthly income is assessed at Rs. 5,000/and the annual income is assessed at Rs. 60,000/- and out of the same 1/3 is to be deducted towards his personal expenses. Hence, the net annual loss of dependency would be Rs. 40,000/- and the same will have to be multiplied by 9 and the total loss of dependency would be Rs. 3,60,000/- instead of Rs. 2,16,000/- awarded by the Tribunal. Thus, the claimants are entitled for enhanced compensation of Rs. 1,44,000/- under the head "loss of future dependency".

The Tribunal has awarded a sum of Rs. 50,000/- under non-conventional heads like loss of consortium, loss of love and affection, loss of estate and funeral expenses. A further sum of Rs. 40,000/- will have to be awarded under these heads.

Thus, the claimants are entitled for a sum of Rs. 1,84,000/- (rupees one lakh eighty four thousand only) as enhanced compensation with interest @ 6% p.a. thereon from the date of filing of a petition till realization. Hence, a sum of Rs. 1,84,000/- will be the just and reasonable additional compensation and the same is awarded.

ORDER

The appeal filed by the NEKRTC is dismissed. The appeal of the claimants is allowed in part, enhancing the compensation from Rs. 4,16,000/- to Rs. 6,00,000/- and thus, the claimants are entitled for enhanced compensation of Rs. 1,84,000/- (rupees one lakh eighty four thousand only) with interest @ 6% p.a. thereon from the date of filing of a petition till realization.

There is no order as to costs.

The judgment and award of the Tribunal stands modified accordingly.

The apportionment of the enhanced compensation be done in accordance with the apportionment done by the Tribunal.

The amount in deposit made by the NEKRTC be transferred to the jurisdictional Tribunal.