(Prayers: This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 08.01.2013 passed in mvc no.348/2009 on the file of the member mact-iv & iii additional district & sessions judge, d.k., Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.

This MFA is filed u/s 173(1) of MV Act against the judgment and award dated28.8.2012 passed in MVC no.119/2009 on the file of member, mact-iii and ii additional district judge, d.k, Mangalore, awarding a compensation of Rs.10,60,000/- with interest @ 6% p.a from the date of petition till the date of deposit.

This MFA is filed u/s 173(1) of MV Act against the judgment and award dated: 08.01.2013 passed in MVC no.348/2009 on the file of the iii additional district and sessions judge, member, mact-iv, d.k., Mangalore, awarding a compensation of Rs.5,41,000/- with interest @ 6% p.a. from the date of petition till realization.

This MFA is filed u/s 173(1) of MV act against the judgment and award dated19.02.2014 passed in mvc no.251/2009 on the file of the ii additional district and sessions judge, mact-iii, d.k., Mangalore, awarding compensation of Rs.4,72,000/- with interest @ 6% p.a. from the date of petition till realization.

This MFA is filed u/s 173(1) of mv act against the judgment and award dated10.02.2014 passed in mvc no.279/2009 on the file of the ii additional district and sessions judge, mact-iii, d.k., Mangalore, awarding compensation of Rs.5,80,000/- with interest @ 6% p.a. from the date of petition till realization.

This MFA is filed u/s 173(1) of mv act against the judgment and award dated: 10.2.2014 passed in mvc no.279/2009 on the file of the ii additional district & sessions jude, mact-3, D.K., Mangaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.

This MFA Crob in MFA no.1412/2013 filed u/o 41, rule 22(1) of cpc, against the judgment and award dated28.8.2012 passed in mvc no.119/2009 on the file of the ii additional district, member, mact-3, d.k., Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.)

Cav Judgment:

In M.F.A. No.6652/2013 and M.F.A. No.3409/2013

1. M.F.A. No.6652/2013 is filed by the claimants and M.F.A. No.3409/2013 is filed by insurance company against the judgment and award dated 08.01.2013 MACT-IV and III Additional District and Sessions Judge, D.K. Mangalore, In MVC No.348/2009.

2. One H. Vikram Bhat, met with an accident on 03.11.2008 and died subsequently. His mother and brother filed claim petition claiming compensation of Rs.50,00,000/-. The Tribunal, considering the entire evidence on record, granted compensation of Rs.5,41,000/- with interest at 6% per annum from the date of petition till realization and respondent No.2 insurance company was directed to deposit the amount within two months from the date of the award.

3. Aggrieved by the said order, M.F.A. No.6652/2013 is filed seeking enhancement in which it is contended that Vikram Bhat was very intelligent, obtained Bachelor degree in Computer Applications from Sree Devi College of Information Science, affiliated to Mangalore University. After education in December 2007, there was an offer letter to him to work as Sales Development Manager in HDFC standard Life Insurance Company Ltd. located at Mangalore with a salary of Rs.2,00,000/- per annum. They filed salary certificate, but the Tribunal has considered his income as Rs.6,000/- per month, which is on lower side. The Tribunal also erred in calculating compensation under various heads, and interest is to be granted at the rate of 8% per annum instead of 6%.

4. The insurance company has filed M.F.A. No.3409/2013 contending that Tribunal without considering contributing negligence on the part of the driver of the car in which deceased was travelling gave finding that driver of the bus in question was on the extreme left side of the road as per Exhibit P6 sketch. It was open for vehicles plying in both directions as other portion of the road was blocked for the purpose of construction of a flyover at that stretch of road. The width of the road as per Exhibit P6 indicates that total width was 30 feet from the place of impact between two vehicles and there was clear 20 feet free space on the left side of the car, and it shows that the accident was due to the sole negligence of Vikram Bhat as there was no obstruction for clear visibility at 07.30 a.m. Head Constable who gave complaint was not an eyewitness, and he went to the spot only after receiving information. The reasoning of the Tribunal to hold that the bus driver alone was negligent based on the police investigation reports, was not proved by examining the concerned Investigating Officer, and it is not proper and correct. Tribunal has granted Rs. 5,14,800/- under head of loss of dependency, by taking the income of the deceased as Rs.6,000/- per month and adding 30% towards future prospect and deducting 50% towards self expenses and taking the multiplier of his mother as 11. Vikram Bhat was aged 25 years and he would have married in near future and have contributed more and thus, one third is to be deducted, as other elder brother, aged 29 years, would also contribute to the welfare of the mother of deceased and thus, requested for setting aside the award of the Tribunal.

5. Heard the arguments of learned counsel for both sides.

6. These appeals arise out of the same accident occurred on 03.11.2008 within the limits of Panambur Police Station, Mangaluru, in which United India Insurance Company Limited has seriously disputed the contributory negligence on their part. Therefore, this Court finds it reasonable to discuss regarding the said negligence aspect on the part of United India Insurance Company Ltd.

7. The manner of accident shows that on 03.11.2008, while Vikram Bhat along with his four friends were coming from Udupi towards Mangalore on NH-17 in a Ford Icon car bearing registration number KA-12B-2277 at about 07.30 a.m. and car reached in front of JB petrol bunk, Panambur which is one way traffic was hit by Ashok Leyland bus bearing registration No.KA- 19B-2273 driven by its driver in a rash and negligence manner with high speed. It was coming from opposite direction, and it entered the one way track from Kulur Bridge onwards. Due to the impact, Vikram Bhat and his friends who were travelling in the car seriously injured and three persons succumbed to the injuries at the spot. Vikram Bhat and another one were admitted in A.J.I.M.S. Mangalore and later, they succumbed to injuries.

8. Respondent No.1 and 2 appeared through their counsels and filed written statement. Respondent No.1-owner of the vehicle contended that accident is due to the negligence and due to the carelessness of the driver of the car in the process of overtaking stationary vehicle in excessive speed and unmindful of either the vehicles coming in its direction or the ongoing four lane work that was in progress, dashed the bus without giving any time for the bus to avoid the accident. Bus was on its way from Bangalore to Kundapur and it was made to travel in that part of the road on account of traffic sign boards to travel in the said stretch of national highway near Panambur beach road junction on account of ongoing four lane work that was in progress. As such, there was no negligence on the part of the bus driver and respondent No.1 also denied other aspects of the petition.

9. Respondent No.2-insurance company stated that the person who was driving the vehicle was not their driver. The criminal case filed against him ended in acquittal. The driver of the bus was not working under first respondent and he cannot be held responsible for the accident and for any contributing negligence. The further stated that bus was insured with them.

10. Petitioner No.2-brother of the deceased was examined as PW1 and they also examined the complainant as PW2 and they filed Exhibit P1 to Exhibit P16 to support their case. Respondents have not examined any witnesses, but filed Exhibit R1 copy of the insurance policy and R2 copy of the judgment in S.C. No.16 of 2019.

11. It was stated that petitioner No.2 has given evidence as P.W.1 and he stated regarding the accident on the basis of information received by him. Respondent No.1 has not cross examined and respondent No.2 has not denied the accident in the cross-examination. Exhibit P1 is the FIR registered by Panambur Police in Crime No.147 of 2008 for an offence punishable under Section 279, 228, 304(A) IPC. Exhibit P2 is the complaint given by one Narayana Hedge, Head Constable, who is examined as P.W.2. Exhibit P3 is a requisition filed by Circle Police Inspector contending, claiming that they registered a case. It is stated that driver of the bus knowing fully well driving the bus in the opposite direction in one way though there was no problem for going in a proper route. As such, they converted the said section into Section 304 IPC. Initially, they filed complaint in Crime No. 147 of 2008 for an offences under Section 217 and 304(B) IPC and later, converted the same into 304 IPC. Exhibit P4 is the intimation given by police under Section 160 of MV Act. Exhibit P5 is the scene of offence panchanama. As per Exhibit P5, accident occurred on NH17, Udupi-Mangalore, near petrol bunk on the western side and towards north, there is 30 feet wide new road coming from Udupi to Mangalore, there is also divider in between two roads which is about 3 feet and towards western side of the said divider i.e. Mangaluru-Udupi, 30 feet road. The petitioner produced hand sketch map which clearly indicates that there is divider in between 30 feet road on either side and the bus came in a wrong side. Exhibit P6 is sketch. Exhibit P7 is the P.M. report of the Vikram Bhat. Exhibit P8 is the motor vehicle inspection report and it indicates damage to both vehicles. RTO opined that accident is not due to mechanical defects of the vehicles. Exhibit P15 is the charge sheet against the driver of the bus. Exhibit P16 is the copy of the order which indicates that bus was released by respondent No.1 and case was committed to the Sessions Court.

12. P.W.2 stated that, on intimation, he went to the spot and found there was head on collusion between bus and car. He denied the suggestion that vehicles were moving only on one side and work was going on other side. He stated that work was not going on the other side of the road. Respondent No.1 has not denied the accident and respondent No.2 has not adduced any evidence. Merely, because the criminal case ended in acquittal, it cannot be said that there is no rash and negligence on the part of the driver of the bus. It was further observed that the driver of the bus moved the bus in one way traffic from opposite direction, that itself indicates that he was driving the bus in a rash and negligent manner knowing fully well that vehicles are not permitted to come from the opposite direction in one way traffic, therefore, it can’t be said there is no negligence on the part of the driver of the bus.

13. The learned counsel for insurance company contended that the insurance company mainly relied upon Exhibit P6-Sketch and stated that bus was on the extreme left side of the road which was open for vehicles plying in both directions. The other portion of the road was blocked for the purpose of construction of a flyover. But PW2 in his evidence has clearly stated that road was not blocked on the other side and bus came on the wrong side of the road in one way from opposite direction and dashed the car. Respondents, though denied negligence on their part, have not examined any other witness and simply relied upon Exhibit R2 copy of the judgment in S.C. No.16 of 2009 in which driver of the bus was acquitted merely because the case ended in acquittal. It cannot be said that there is no negligence on his part and moreover, the judgment in criminal case is not binding on the MACT.

14. Learned counsel for Insurance company also raised another objection that petition is bad for non-joiner of necessary party and the owner and insurer of the Ford icon car were not made as parties. Respondent No.2-insurance company filed copy of the insurance policy of the bus Ashok Leyland Bus with registration No.KA-19B-2273 under Exhibit R1. Respondent No.1-owner of the vehicle, insured the vehicle with respondent No.2 and the policy was in existence as on the date of accident, as such, based on the available oral and documented evidence, the Tribunal has clearly held that there is negligence on the part of the driver of the bus. Therefore, the argument of the learned counsel for the insurance company cannot be considered. Accordingly, this Court holds the entire negligence is on the part of the driver of the bus.

15. It is stated that Vikram Bhat was working as Sales Department Manager in HDFC Standard Life Insurance Company with a salary of Rs.2,00,000/- per annum. Ex.P.10 is the offer letter. It is stated that appointment letter was produced and his total salary was Rs.13,490/- and he was working from 13.12.2007 till the date of accident. Therefore, this Court finds it reasonable to take income of Vikram Bhat as Rs.2,00,000/- per annum. As per the PM report, he was aged 25 years and the multiplier is 18. Therefore, as per the guidelines in the case of National Insurance Company Limited Vs. Pranay Sethi ((2017) 16 SCC 680) , he is entitled for 40% towards future prospects as he was working as a private employee, and as he was a bachelor, 50% is to be deducted towards personal expenses as per the guidelines of the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation ((2009) 6 SCC 121) . Thus, the loss of dependency comes to Rs.25,20,000/- (2,00,000 + 40% - 50% x 18).

16. Further, as per the guidelines of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & others ((2018) 18 SCC 130) , and in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur and others ((2020) 9 SCC 644) , the 1st petitioner-mother of Vikram Bhat is entitled for Rs.40,000/- under head loss of filial consortium. Rs.30,000/- is awarded under conventional heads, as per the guidelines of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi ((2017) 16 SCC 680). Thus, the total compensation comes to Rs.25,90,000/-.

17. In all, the claimants are entitled for the compensation of Rs.25,90,000/- with interest at 6% per annum as against Rs.5,41,000/- awarded by the Tribunal.

18. The award of compensation passed by the Tribunal is modified as under: