THE MANAGING DIRECTOR v. KENCHAIAH @ KENCHAPPA

(BY SRI. S. NAGESH, ADV. FOR R1 TO R3.) ...RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.03.2019 PASSED IN MVC NO.534/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU, AWARDING COMPENSATION OF RS. 11,15,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. MFA NO. 7680/2019 BETWEEN:

1. SRI KRISHNAPPA N AGED ABOUT 45 YEARS, S/O. LATE NANJAPPA,

2. RADHAMMA AGED ABOUT 39 YEARS, W/O. KRISHNAPPA .N,

3. JAYAMMA AGED ABOUT 64 YEARS, W/O. LATE NADIPANNA, ALL ARE R/A NERALEKUNTE, - 4 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR KASABA HOBLI, PAVAGADA TALUK, TUMKURU DIST. AND ALSO AT C/O. RAMESH BABU, RUDRAIAH BUILDING, 7TH CROSS, BADDIHALLI, TUMKURU TOWN AND DIST. (BY SRI. S. NAGESH, ADV.) AND: THE MANAGING DIRECTOR K.S.R.T.C., TUMKURU DIVISION, DEPOT-2, ASHOKA ROAD, TUMKURU CITY. (BY SRI. H.R. RENUKA, ADV.) ...APPELLANTS ...RESPONDENT THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.03.2019 PASSED IN MVC NO.534/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE G BASAVARAJA) These appeals are against the Judgment and award dated 27th March 2019 passed in MVCs No.783 of 2018 and 534 of - 5 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR 2018 by the I Additional District Judge & Motor Accident Claims Tribunal, Tumakuru (for short ‘the Tribunal’).

2. MFA No.7680 of 2018 is filed by the claimant in MVC No.534 of 2018 seeking modification of the award by enhancing the compensation from Rs.11,15,000/- to Rs.55.00 lakh along with 12% interest from the date of petition. MFAs No.5108 and 5110 of 2019 are preferred by the appellant-KSRTC questioning its liability.

3. Brief leading to these appeals are that petitioners have filed claim petitions under Section 166 of Motor Vehicles Act, 1988 seeking compensation for the death of B.K. Praveen and Abhishek, who died in the road traffic accident. It is the case of claimants that on 24th February 2018 at about 3:30 PM, the said Praveen and Abhiskeh, were proceeding on the motorcycle bearing registration No.KA-64/E- 6419 from Tumakuru towards Pavagada to attend a marriage and the said motorcycle was being ridden by Praveen and Abhishek was a pillion rider. While they were proceeding near the land of Singonahalli Kumbaiah, a KSRTC bus bearing registration No.KA-06/F-1092 coming from Madhugiri side - 6 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR being driven by its driver in a high speed, rash and negligent manner, dashed against the motorcycle and caused the accident. The result of which, both rider and the pillion rider died on the spot. The petitioners being dependents of the deceased have filed claim petitions.

4. In response to notice, respondents appeared in both the petitions and filed their objections contending that the driver of the bus was driving cautiously by observing the traffic rules and the accident occurred due to rash and negligent act on the part of the rider of the motorcycle. It is also contended that the rider of the motorcycle was not having valid driving license. It is further contended that the rider and the pillion rider were not wearing helmet. Since the accident occurred due to negligence on the part of the rider of the two-wheeler, portion of contributory negligence has to be attributed on the rider of motorcycle. It is further contented that the claim petition is bad for non-joinder of necessary parties, i.e. owner and insurer of the two-wheeler. Learned counsel would further submit that the claimants in both the petitions have already received Rs.15,000/- as interim compensation and hence the - 7 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR said amount be deducted while awarding final compensation. On all these grounds it was sought for dismissal of claim petitions.

5. Based on the pleadings, the Tribunal framed necessary issues in both the cases. To substantiate the case of the petitioners in MVC No.534 of 2018, in all, four witnesses were examined as PWs1 to 4 and 19 documents were marked as Exhibits P1 to P19. In MVC No.738 of 2018, five witnesses were examined as PWs1 to 5 and 18 documents were marked as Exhibit P1 to P18. On closure of petitioners' side evidence, respondent got examined one witness as RW1 and marked two documents as Exhibits R1 and R2. Having heard on both sides, the Tribunal allowed the claim petitions in part and awarded compensation of Rs.11,15,000/- in MVC No.534 of 2018 and Rs.18,49,400/- in MVC number 783 of 2018 with interest at 6% per annum from the date of petitions till deposit. Being aggrieved by the said judgment and award passed by the Tribunal, KSRTC has filed appeals in MFAs No.5108 and 5110 of 2019 challenging the liability and quantum; and the claimants - 8 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR have preferred MFA 7680 of 2019, seeking enhancement of compensation.

6. We have heard the Sriyuths Patel D. Karegowda and S. Nagesh, learned counsels appearing for the claimants and Smt. H.R. Renuka, learned Counsel appearing for the appellant-KSRTC.

7. Learned Counsel appearing for the claimants in MVC No.534 of 2018 would submit that the Tribunal has failed to consider the salary of the deceased Abhishek. Appellants No.1 and 2 were also dependent upon the deceased. He submits that the Tribunal ought to have considered the income as per salary certificate Exhibit P18. As regards, MVC No.783 of 2018, the learned Counsel would submit that the Tribunal has not awarded just compensation as per the decision of Hon'ble Supreme Court and also the guidelines issued by the Karnataka State Legal Services Authority. Though the claimants have not preferred any appeal seeking enhancement, this Court can enhance the compensation invoking the provisions of Order XLI Rule 33 of Code of Civil Procedure. As regards, negligence on the part of the driver of KSRTC bus, he - 9 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR would submit that the Tribunal has rightly appreciated the evidence on record in accordance with law and facts and held that the accident occurred due to sole negligence on part of the driver of the KSRTC bus and accordingly sought enhancement of compensation.

8. Learned Counsel appearing for appellant-KSRTC would submit that the Tribunal has not properly appreciated evidence on record in accordance with law. The Tribunal has not considered the evidence of RW1 and documents Exhibits R1 and R2. It is submitted that the riders were proceeding without helmet which is mandatory and the rider of the motorcycle was also not having valid and driving license. The Tribunal failed to notice Exhibit P7-sketch while fixing the rash and negligent act on the driver of the bus where there is contributory negligence on the part of the rider of motorcycle also. She would also submit that the Tribunal has erred in awarding higher compensation in both cases. On all these grounds, she sought to allow the appeals. - 10 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR

9. Having heard on both sides and on perusal of materials placed before us the following points would arise for our consideration:

1. Whether the Tribunal is justified in holding that the accident occurred according to negligent act on the part of the driver of KSRTC bus?

2. Whether the claimants in MVC No.534 of 2018 and the respondents 1 to 3 in MVC No.783 of 2018 are entitled for enhancement of compensation?

3. What order or award? Regarding Point No.1:

10. We have examined the material placed before us. PW1 and the eye witness-PW3 have categorically stated as to the rash and negligent act on the part of the driver of KSRTC bus. Apart from oral evidence, petitioners have produced FIR, complaint, Motor Vehicles Inspection report, inquest report, postmortem report, spot mahazar, sketch and the charge- sheet. A perusal of these materials makes it crystal clear that - 11 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR on the basis of complaint filed by one Lokesh, Tumkur Rural Police, registered case in Crime No.60 of 2018 against the driver of KSRTC bus for commission of offence punishable under Sections 279 and 304A of Indian Penal Code and submitted first information report to the Court. Immediately, police rushed to the spot, conducted spot panchanama as per Exhibit-P3, obtained motor vehicle report, Post-mortem report and prepared inquest panchanama, recorded the statement of eyewitnesses thorough investigation, Investigating officer submitted charge-sheet against accused Rudresh-driver of the KSRTC bus for aforesaid offences. Respondents have not placed any materials to discard the oral and documentary evidence placed by the petitioners. However, the driver of KSRTC Bus is examined as RW1. He has deposed in his evidence that the alleged accident took place due to rash and negligent act on the part of the rider of motorcycle. Further, he has deposed that Police have filed false charge sheet against him. During the course of cross-examination, he has unequivocally admitted that he has not taken any legal steps questioning the charge-sheet submitted by the police. Further, he has clearly admitted that he has not lodged - 12 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR complaint as to rash and negligent act on the part of the rider of the motorcycle. If really accident occurred due to rash and negligent act of the rider of motorcycle, the accused being the driver of KSRTC bus, would have lodged the complaint against him. But he has not done so. Even the respondent has not examined the investigating officer before the Tribunal to disprove the charge-sheet submitted by him. The main objection raised by the KSRTC is that the rider of motorcycle was not having valid driving license at the relevant point of time and both the rider and the pillion rider were travelling without protective headgear. In this regard the respondent has not placed any material materials to show that the rider of motorcycle was not having driving license at the relevant point of time. The investigating officer has not submitted charge- sheet as to non-possessing of driving license by the rider of the motorcycle. The investigating officer has also not filed any charge-sheet under Section 129 of the Motor Vehicles Act, 1988 against the accused for not wearing the protective headgear. Even if we presume that the rider and the pillion rider were travelling without protective headgear at the time of accident, that itself would not be a ground to discard the evidence placed - 13 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR by the claimants as to rash and negligent act on the part of the driver of KSRTC bus. Considering all these evidences, the Tribunal has rightly held that the accident occurred due to sole negligent act on the part of the driver of KSRTC Bus. Even on re-appreciation, re-evaluation and re-examination of the entire evidence on record, we do not find any error/legal infirmity in the finding given by the Tribunal. Accordingly, we answer Point No.1 in the affirmative. Regarding Point No.2:

11. With regard to quantum of compensation in MFA No.7680 of 2019 pertaining to MVC No.534 of 2018 is concerned, the Tribunal has assessed the income of the deceased at Rs.10,000/- per month. Learned counsel for the appellants submits that the deceased was pursuing final year B.Com and was also doing part-time job at S.R. Enterprises and earning Rs.18,000 per month. To substantiate this, one witness has been examined as PW4 and produced salary certificate-Exhibit P19. PW4 has stated that he is running a firm under name and style, 'S.R. Enterprises' which is into manufacturing paper cups. He has further stated that - 14 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR deceased-Abhishek was working in his firm as part-time worker and he was being paid salary of Rs.18,000/- per month. Except producing Exhibit P19, appellants have not produced any cogent evidence to show that the deceased was earning Rs.18,000/- per month. Tribunal has rightly rejected the evidence placed by the claimants. However, the Tribunal has assessed the notional income at Rs.10,000/- per month, which is not in consonance with the guidelines issued by the Karnataka State Legal Services Authority. In view of the guidelines, notional income for the accidents of year 2018 has to be taken at Rs.12,500/- per month. In view of the Judgment of Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added to the income towards future prospects. Since the deceased was a bachelor, 50% is to be deducted towards the personal expenses of the deceased. As per the post-mortem report, the deceased was aged 21 years as on the date of accident. In view of the Judgment of Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121, the - 15 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR appropriate multiplier applicable to the age group of the deceased is 18. Hence the compensation towards loss of dependency would be Rs.18,90,000/- (Rs.8750/-×12×18). The Tribunal has awarded Rs.30,000/- towards love and affection, Rs.20,000/- towards transportation and funeral expenses. As per the judgment of Hon’ble Supreme Court in the case of PRANAY SETHI (supra), the revised compensation to which the appellants are entitled is as follows: Sl.No. 1. 2.

3. 4. Heads of compensation Towards loss of dependency Towards (Rs.40,000/- x 3) Towards loss of estate Towards funeral expenses consortium Amount in Rs. 18,90,000.00 1,20,000.00 15,000.00 15,000.00 Total 20,40,000.00

12. As regards, compensation in MFA No.5110 of 2019 arising out of MVC No.783 of 2018, the Tribunal has awarded compensation of Rs.18,49,400/-. It is submitted by the learned Counsel for the claimants/respondents that though the Tribunal has not awarded just compensation as per the decision of Hon'ble Supreme Court so also the guidelines issued by the Karnataka Legal Services Authority, the appellants have not preferred any appeal or cross-objections for enhancement of - 16 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR compensation. However, he sought for enhancement of compensation by this court invoking provision under Order XLI Rule 33 of Code of Civil Procedure. In view of the said submission, we have perused the materials placed before us. PW2 is the father and petitioners 1 and 2 are mother and sister of the deceased. The Tribunal has awarded compensation of Rs.30,000/- towards love and affection, which is not in consonance with the decision of Hon'ble Supreme Court. The Tribunal has also awarded compensation of Rs.20,000/- towards funeral rites and other ceremonies and also transportation of dead body, but has not awarded any amount towards loss of estate. With regard to compensation towards loss of dependency, PW2 has deposed that deceased was working as Photographer in Ganesh Digital Studio and Video, Pavagada and earning Rs.700/- per day. To substantiate the said contention, the claimants got examined one Mallikarjun as PW5 and marked salary-certificate as Exhibit P18. The Tribunal has rejected this evidence on the ground that the claimants have not produced bank statement or salary particulars of the deceased and accordingly assessed the notional income of the deceased at Rs.12,000/- per month. The same is not in - 17 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR consonance with the chart issued by the Karnataka State Legal Services Authority. Since the accident is of the year 2018, the notional income is to be taken at Rs.12,500/- per month. According to decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added to the income towards future prospects. Since, the deceased was a bachelor 50% is to be deducted towards the personal expenses of the deceased. As the deceased was aged 22 years as on the date of accident, the appropriate multiplier would be 18. Accordingly, the loss of dependency would be Rs.18,90,000/- (Rs.8750/-×12×18). The claimants are also entitled for Rs.40,000/- each towards loss of consortium and Rs.15,000/- each towards loss of estate and towards funeral expenses. Invoking provisions of Order XLI Rule 33 of Code of Civil Procedure, we have enhanced the compensation in MVC No.783 of 2018. The revised compensation to which the respondents herein are entitled is as under: - 18 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 Heads of compensation Amount in Rs. Towards loss of dependency Towards (Rs.40,000/- x 3) Towards loss of estate Towards funeral expenses consortium Total 18,90,000.00 1,20,000.00 15,000.00 15,000.00 20,40,000.00 HC-KAR Sl.No. 1. 2.

3. 4.

13. It is to be observed here that out of the compensation awarded in both the claim petitions, the Tribunal has deducted an amount of Rs.15,000/- paid by the appellant- KSRTC as interim compensation. It is settled position that the interim compensation is to be termed as Ex-gratia amount paid by the organization, Government or Insurer to the legal heirs of the deceased. The Co-ordinate Bench of this Court in the case of GOWRAMMA AND OTHERS v. THE MANAGING DIRECTOR, KSRTC rendered in Miscellaneous First Appeal No.103516 of 2016 and connected appeals, decided on 20th June 2024 (to which one of us is a Member) has held that the term Ex-gratia is not defined under the Motor Vehicles Act, 1988 or the Central Motor Vehicle Rules, 1989 including the Karnataka Motor Vehicle Rules, 1989. According to dictionary definition, ex- gratia payment refers to a payment not legally required. Such payments are considered voluntary, meaning they are made by - 19 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR an organisation, Government or Insurer to an individual for damages or claims without admitting liability. Applying the same analogy to the case on hand, it is to be held that amount of Rs.15,000/- paid by the appellant-KSRTC towards interim compensation is an Ex-gratia amount and cannot be deducted out of the total compensation awarded. Accordingly, it is ordered by answering Point No.2 partly in the affirmative. In the result, we proceed to pass the following: O R D E R i. Miscellaneous First Appeals No.5110 of 2019 and 5108 of 2019 preferred by the appellant- KSRTC are dismissed; ii) Miscellaneous First Appeal No.7680 of 2019 arising out of MVC No.534 of 2018 preferred by the claimants is allowed in part holding that the appellant-claimants entitled compensation of Rs.20,40,000/- as against Rs.11,15,000/- awarded by the Tribunal; iii) In MFA No.5110 of 2019, by invoking provisions under Order XLI Rule 33 of the Code of Civil Procedure, the judgment and award is modified holding that the respondents are entitled for compensation of Rs.20,40,000/- as - 20 - NC: 2025:KHC:25397-DB MFA No. 5110 of 2019 C/W MFA No. 5108 of 2019 MFA No. 7680 of 2019 HC-KAR against Rs.18,49,400/- awarded by Tribunal; iv) The compensation amount carries interest at the rate of 6% per annum from the date of petition till realisation; v) Appellant-KSRTC deposit compensation amount with accrued interest before the Tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment; vi) Amount in deposit, if any, be transmitted to the Tribunal forthwith; vii) Registry to draw award accordingly; viii) Registry to transmit the trial court records along with the copy of this Judgment to the concerned court. Sd/- (B M SHYAM PRASAD) JUDGE Sd/- (G BASAVARAJA) JUDGE List No.: 1 Sl No.: 6