Puttarangamma and Others vs Dastagir and Others

Ram Mohan Reddy, J.—1. MFA 979/2012 is instituted by the claimants in MVC 1240/2009 aggrieved by the quantum of compensation as being on the lower side by Judgment and award dated 18.8.2011 of the Senior Civil Judge and Addl. MACT, Sira, for short ''MACT'', while MFA 11434/11 is instituted by the insurer of the canter-lorry aggrieved by finding on issue No. 1 attributing actionable negligence on the driver of the canter lorry, as also fastening the liability to pay compensation in respect of the deceased Mahalingappa, on the premise that his risk was not covered under the policy of insurance.

Facts briefly stated are:-

On 15.8.2009 at about 10.15 a.m. one Mahalingappa was travelling in the canter-lorry bearing certificate of registration No. KA-18-9774, claiming to be a coolie/loader and unloader of Ganesha statues and when the vehicle approached Jai Hind hotel on Hiriyur-Tumkur National Highway-4 dashed against a bus bearing certificate of registration No. KA-30-F-810 belonging to the Karnataka State Road Transport Corporation (KSRTC) by reason of which the said Mahalingappa succumbed to grievous injuries on the spot.

The widow and children of deceased Mahalingappa instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988, for short the ''Act'', registered as MVC 1240/2009 before the MACT alleging rash and negligent driving of not only the driver of the canter-lorry, but also the driver of the KSRTC bus by arraigning the owner and insurer of the canter-lorry as respondent Nos. 1 and 2 and the KSRTC as respondent No. 3.

Petition was opposed by filing statement of objections of the owner of the canter-lorry denying the allegations and contending that the accident was due to rash and negligent driving of the bus belonging to the KSRTC and since the canter-lorry was covered by a policy of insurance, the liability, if any, had to be fixed on the Insurance company.

The insurer of the lorry too opposed the petition by filing statement of objections inter alia denying the allegations and assertions in addition to a advancing plea that the deceased was a gratuitous passenger in a goods lorry whose risk was not covered since no premium was paid and due to breach of the terms and conditions of the policy of insurance, it was not liable to make good the compensation.

KSRTC too opposed the petition by filing written statement denying the version of the claimants. According to KSRTC the bus in question was falsely implicated in the collusion with the police to claim compensation. It was further contended that the bus in question did not belong to KSRTC.

In the premise of pleading of parties the MACT framed the following issues:

"1. Whether the petitioners prove that on 15/08/2009, at about 10-15 a.m., near Jaihind Hotel, on Hiriyur-Tumkur NH-4 road, accident happened due to rash and negligent driving of driver of the Canter Lorry bearing Re. No. K.A.18.9774 and Mahalingappa died due to the injuries sustained by him in the said accident?

Whether the petitioners are entitled for compensation, if so, at what rate, from whom?

What order or decree?

The 1st claimant-widow was examined as PW-1 and an eye witness also the occupant of the ill-fated canter-lorry was examined as PW-2 and marked eight documents as Exs.P1 to P8, while for the respondents the insurer examined one of its officers as RW-1, and KSRTC examined its driver as RW-2. The Insurance company through its witness marked two documents as Exs.R1 and R2 viz., the authority letter and a copy of the policy of insurance, respectively.

MACT having regard to the material on record and evidence, both oral and documentary, returned a finding in the affirmative on issue No. 1 and in the affirmative over issue No. 2 determining Rs. 3,32,000/- as compensation payable by the owner and insurer of the canter-lorry by the Judgment and award impugned.

The insurer of the lorry filed MFA 11434/2011 together with IA-2/11 under Order 41 Rule 27 CPC for permission to lead additional evidence by production of the certified copy of spot sketch prepared by the police authorities.

Learned counsel for the claimants as well as for KSRTC have no objection and extend their consent to mark the spot sketch as Ex.R3. IA-2/11 is supported by an affidavit stating that the spot sketch is essential for a better understanding of what is recorded in the mahazar Ex.P3 and therefore, to advance substantial justice the need to produce the same as additional evidence.

Recording the submission of the learned counsel for the parties and regard being had to the fact that in order to do substantial justice, there is a need to take on record, as additional evidence, the spot sketch is marked as Ex.R3, IA-2/11 is accordingly allowed.

Having heard the learned counsel for the parties, perused the pleadings, examined the Judgment and award impugned and evidence, both oral and documentary, the following three questions arise for decision making:

i) Whether in the facts, circumstances and evidence on record, the MACT was justified in returning a finding in the affirmative on issue No. 1 attributing actionable negligence on the driver of the canter-lorry?

ii) Whether in the facts, circumstances and evidence on record, the MACT was justified in fastening the liability on the insurer of the canter-lorry to pay compensation for the death of Mahalingappa, a gratuitous passenger in the goods vehicle?

iii) Whether in the facts, circumstances and evidence on record, the MACT was justified in awarding 3,32,000/- as compensation?

The MACT while recording reasons to answer issue No. 1 stated in complete facts, so also that FIR Ex.P2 disclosed that the complaint was lodged by one Nagaraju, S/o deceased Mahalingappa and that police lodged a complaint against the driver of the canter-lorry followed by a charge sheet Ex.P-4 alleging that the canter-lorry dashed against the KSRTC bus and on that premise concluded that the driver of the canter-lorry was responsible and due to the negligent act dashed against KSRTC bus and caused the accident.

The approach of the MACT in the facts and circumstances and evidence on record cannot but be said to be in a cavalier manner. The MACT having not appreciated the evidence on record, both oral and documentary, it is inevitable that the conclusion cannot be justified. It has become a practice of MACT''s not to appreciate the evidence on record before drawing conclusion.

The oral testimony of PW-2 one of the inmates of the canter-lorry is that while he sitting in the cabin of the lorry along with Mahalingappa and another gratuitous passenger, the canter-lorry when proceeding on the National Highway, the driver of the KSRTC bus having thrown caution to wind, drove in a rash and negligent manner from the service road and entered the intersection into the National Highway to cross over to the road on the other side of the National Highway whence the accident occurred. This intersection from the service road into the National Highway, provides for vehicle movement from the service road to enter the National Highway (a grave mistake committed by the National Highway authorities, instead of providing an underpass). It is also established that the intersection was unmanned in the sense that there was nobody to regulate the traffic from service road on to the National Highway. Yet again what is established is that the National Highway itself had an intersection by which vehicles from one side of the National Highway could cross over the median to pass on to the other side of the National Highway to traverse in the opposite direction. The KSRTC bus was, as a matter of fact, traversing from the service road and entered the intersection to the National Highway to cross over to the other side of the National Highway at which point the accident occurred.

There is no more doubt that on a National Highway the speed limits are on the higher side, in the sense that motor vehicles travel at a higher speed while on the service road, it is needless to state that motor vehicles traverse at low speed, for various reasons. At an intersection it is yet again needless to state that there is a need for persons to be cautious while entering the main road from a service road. It is useful to extract regulations 8 and 9 of the Rules of Road Regulations, 1989 promulgated in exercise of power conferred on the Central Government in Section 118 of the Motor Vehicles Act, 1988 (59/88) which read thus:

"8. Caution of Road Junction:

The driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon.

Giving way to traffic at road junction:

The driver of a motor vehicle shall, on entering a road interjection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along the road, and in any other case give way to all traffic approaching to the intersection of his right hand."

The documentary evidence placed before the MACT are FIR Ex.P2, in which the complainant none other than the son of the deceased Mahalingappa states that the accident occurred at the intersection due to the negligent act of the driver of the canter-lorry dashing against KSRTC bus which had entered the intersection on the National Highway. The next document is Ex.P3, the mahazar, which is indicative of existence of a service road, and the intersection, from the service road on to the National Highway and a further intersection in National Highway to cross over the median on to the other side of the National Highway and the accident occurred at the intersection from the service to the National Highway, when the KSRTC bus moved into the National Highway. The spot sketch Ex.R3, marked by consent is a description of what is recorded in the mahazar Ex.P3. The testimony of PW2 eye witness over the intersection is corroborated by the documentary evidence.

Testimony of PW-2 is not shown to be incriminatory since nothing is elicited in his cross-examination so as to disbelieve his testimony. Appreciating the testimony of PW2 coupled with the documentary evidence Exs.P3 and R3, it is needless to state that the eye witness, one of the inmates of the canter-lorry, described as to how and where the accident occurred i.e., when the KSRTC bus entered into the intersection. Hence it is probable that had the driver of the KSRTC bus did not drive the bus with caution and circumspection at the intersection by following Road Regulations 8 and 9 extracted supra, to cross the NH, by giving right of way for traffic on the NH i.e. right of way of canter-lorry and in fact, obstructed the movement of the canter-lorry on the National Highway the cause of the accident. The driver of KSRTC bus having failed to exercise caution despite noticing the fact that the canter-lorry was traversing on the National Highway, and such an entry at the intersection would endanger the safety of the persons in the motor vehicle i.e. canter-lorry. In the circumstances the evidence of RW-2, driver of KSRTC bus stating that he was not negligent while driving the bus into the intersection cannot be believed. That evidence of RW-2 must stand eschewed. From the aforesaid discussion, it is needless to point out that the act of the driver of KSRTC bus in driving the bus into the intersection without following the Road Regulation was a negligent act and the cause of the accident. The driver of the canter-lorry proceeding on the National Highway is entitled to do so without any obstructions and KSRTC bus had become an obstruction for such movement of the motor vehicle on the National Highway.

In that view of the matter, the finding on issue No. 1 in the affirmative by the MACT is perverse calling for interference. The driver of KSRTC is attributed with actionable negligence in causing the accident in question. The first question framed above is answered accordingly.

Since negligence is attributed to the driver of the offending bus belonging to KSRTC, answer to the second question is that the insurer of the canter-lorry is not liable to pay the compensation. However, it is a matter of fact that deceased Mahalingappa though claimed to be a coolie engaged to load on to the truck Ganesha idols at some other place, by the owner of the goods to be purchased in future and to be loaded, cannot be construed as a representative of the owner of goods since the owner of goods was also travelling in the very same canter-lorry. The policy of insurance Ex.R2 does not cover the risk of gratuitous passengers in the goods vehicle. In that view of the matter, the MACT was not justified in fastening the liability on the appellant-insurer to pay the compensation in respect of death of the gratuitous passenger by name Mahalingappa. The second question is answered accordingly.

Deceased Mahalingappa was aged 50 on the date of accident, an unskilled worker. In the absence of relevant material over the earning of Rs. 9,000/- to 10,000/- p.m. of the deceased, the MACT reckoned notional income of Rs. 3,000/- p.m, deducted 1/3rd towards personal expenses and applied multiplier ''13'' to the annual loss to arrive at Rs. 3,12,000/- as loss of dependency, to which was added Rs. 5,000/- towards funeral expenses; Rs. 5,000/- towards loss of consortium and Rs. 10,000/- towards loss of love and affection, totaling to Rs. 3,32,000/- with interest at 6% p.a. Deceased Mahalingappa left behind a widow aged 48, the 1st appellant, two sons aged 29 and 24 as 2nd and 3rd appellants and an unmarried daughter aged 20 as 4th appellant. Sri. F.S. Dabali, learned counsel for respondent-KSRTC submits that in the inquest mahazar, Ex.P5 the first claimant made a statement that deceased Mahalingappa left behind four children who are all married and are residing in their homes.

In the year 2009, it was recognized in the Lok-Adalat that an unskilled person would earn anything less than Rs. 5,000/- p.m and if that is so, reckoning the said sum as the monthly income of the deceased, deducting 1/3rd towards personal expenses of the deceased since he left behind a widow, claimant No. 1, and as all the children are married and are residing in their respective homes leaving the widow all alone, according to the inquest mahazar, the monthly loss of dependency is Rs. 3,334/- and to the annual loss, applying multiplier ''13'' as applicable to age 50 of the deceased, the loss of dependency is Rs. 5,20,104/- which the appellants are entitled to.

In Rajesh and others -v- Rajbir Singh and others , (2013) 9 SCC 54 the Apex Court observed that towards loss of consortium a spouse would be entitled to atleast Rs. one lakh. In that view of the matter, the award of Rs. 5,000/- towards loss of consortium by the MACT is on the lower side. Enhancing it to Rs. 50,000/- is just and reasonable. Award of Rs. 5,000/- towards funeral expenses cannot but be said to be frugal, enhancing it to Rs. 25,000/- is just and fair. There is no legal ground to interfere with the award of 10,000/- towards love and affection.

In the circumstances the claimants/appellants are entitled to the following compensation:

with interest at 6% p.a.

In the result, appeals of both the claimants as well as the insurer of canter-lorry are allowed in part. The Judgment and award impugned is modified in the aforesaid terms and in all other respects remains unaltered.

The amount in deposit in the appeal preferred by the insurer is directed to be refunded to the insurer.