Yerramma & Ors. v. G. Krishnamurthy & Anr.

5. Being aggrieved by the award passed by the Tribunal, the appellants filed an M.F.A. No.21576 of 2012 on 05.04.2012 before the High Court of Karnataka, Circuit Bench at Dharwad. After considering the facts, evidence on record and circumstances of the case, the High Court was of the view that the net income of the deceased at the time of his death was Rs.21,168/- per month. As the claimants were 5 in number, the High Court held that Rs.5292/i.e. 1/4th of the income had to be deducted towards personal expenses of the deceased (as per Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.[1] ). Therefore, the remaining (2009)6 SCC 121 Page 4 C.A.No. 7705 of 2014 4 amount comes to Rs.15,876/- per month. The High Court applied the multiplier of 11 and redetermined the loss of dependency of the appellants at Rs.20,95,632/- as the age of the deceased at the time of his death was 53 years. It further awarded a sum of Rs.45,000/- towards conventional heads i.e. loss of consortium, loss of estate, loss of love and affection, and transportation of the dead body. Thus, the total compensation amount was determined by the High Court at Rs.21,40,632/-. The High Court has affirmed the apportionment of contributory negligence as determined by the Tribunal and accordingly, deducted 25% from the above compensation. A final amount of Rs.16,05,474/- was awarded to the appellants by the High Court as against Rs.15,97,974/- awarded by the Tribunal. Thus, the High Court partly allowed the appeal by enhancing the compensation by a sum of Rs.7,500/-.

6. Aggrieved by the above impugned judgment and order passed by the High Court of Karnataka, Page 5 C.A.No. 7705 of 2014 5 Circuit Bench at Dharwad, the appellants preferred an appeal before this Court for setting aside the same and for enhancement of compensation by awarding just and reasonable compensation.

7. Mr. C.B. Gururaj, the learned counsel for the appellants contended that the judgment of this court in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[2] is applicable to the facts of the present case. In the above case, Joy Kuruvila(the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to the hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver and the deceased in the ratio of 75:25%. On the basis of the pleadings & evidence on record, in the above said case this Court has held thus on the negligence of the driver of the bus:- (2013)9 SCC 166 Page 6 C.A.No. 7705 of 2014 6 “20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

20.6. The post mortem report, Ext. A- 5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct Page 7 C.A.No. 7705 of 2014 7 evidence like PW[3] (independent eyewitness), Ext. B-1 (FI statement) are on record” Thus in our view, the contributory negligence apportioned by the Tribunal, which is affirmed by the High Court at 75% on the respondent- Corporation bus driver and 25% on the part of the deceased is erroneous not only with reference to the plea urged by the respondents before the Tribunal and the High Court but also keeping in view the legal principles laid down by this Court on this aspect in the above referred case.

8. The observations made by this Court in the case of Juju Kuruvila (supra) certainly apply to the fact situation on hand. Based on the evidence recorded in the present case, we are of the opinion that there is no contributory negligence on the part of the deceased but on the other hand the negligence is on the part of the driver of the respondent-Corporation bus.

9. After thorough consideration of the facts and legal evidence on record in the present case, we Page 8 C.A.No. 7705 of 2014 8 are of the view that the collision between the motor vehicles occurred when the respondent- Corporation bus was turning to its right side without showing the turn indicator to enter the bus depot. The driver of the offending vehicle of the respondent-Corporation bus was negligent by not giving the right turn indicator and causing the accident. The driver of the respondent-Corporation bus should have been aware of the fact that he was driving the heavy passenger motor vehicle, and that it was necessary for him to take extra care & caution of the other vehicles on the road while taking the turn to enter the depot. Had the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted.

10. Hence, we are of the view that the Tribunal and the High Court have erred in the apportionment of negligence at 25% on the part of the deceased and 75% on the part of the Page 9 C.A.No. 7705 of 2014 9 driver of the respondent-Corporation bus without evidence adduced in this regard by the respondent. But on the other hand, legal evidence produced on record by the appellants in this case would show that the accident was caused on account of the negligence on the part of the driver of the offending vehicle of the respondent-Corporation. Therefore, the erroneous finding recorded by the Tribunal & concurring with the same by the High Court on the question of contributory negligence of the deceased is liable to be set aside. Accordingly, we set aside the same as it is not only erroneous but contrary to law laid down by this Court in the case of Juju Kurivila (Supra).

11. In our considered view, since the deceased at the time of his death was approximately 53 years of age, therefore, as per law laid down by this Court in the Sarla Verma case (supra), 30% of actual salary for future prospects of the deceased cannot be taken for the purpose of awarding compensation under loss of dependency in favour of the appellants. Page 10 C.A.No. 7705 of 2014 10

12. Further, with regard to gross annual income of the deceased, to determine the loss of dependency of the appellants, we refer to the case of National Insurance Co. Ltd. v. Indira Srivastava[3], wherein this Court has held as under:-