IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1385 of 2001()
1. THE MANAGING DIRECTOR, K.S.R.T.C.
... Petitioner
Vs
1. V.S. PREMA
... Respondent
For Petitioner :.
For Respondent :SRI.P.R.GOPALAKRISHNAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/09/2008
O R D E R
J.B.KOSHY & THOMAS P.JOSEPH, JJ.
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M.F.A.No.1385 OF 2001
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Dated 1st September, 2008
JUDGMENT
Koshy,J.
This appeal is filed by the owner of the offending bus namely
the Kerala State Road Transport Corporation. A driver employed in
Mahatma Gandhi University, Kottayam while driving the official car of
the Pro-Vice Chancellor of the University, met with an accident when a
bus owned by the appellant collited with it and the driver died in the
accident. The deceased driver was aged only 34 years and he was
getting a salary of Rs.3,000/= per month. His wife was aged 33 years
and child was aged 1= years. They claimed a total compensation of
Rs.10,00,000/=. The Tribunal awarded only Rs.2,82,200/= as
compensation. The major contention raised by the appellant is that
finding of negligence on the driver of the vehicle owned by the appellant
was not correct as the car was on the wrong side. This question was
considered by the Tribunal elaborately after perusing the documentary
evidence as apart from the police charge, no independent evidence was
adduced by both sides regarding the cause of accident. The Tribunal
held as follows:
MFA.1385/2001 2
“6. As evidenced by Ext.A2 scene mahazar,
the place of hit was 3 mts. east of the western tar
end of the road, which was having a width of 7.40
mts. from its tarred portion. As borne out by
Ext.A6 police charge the bus was proceeding from
south to north and the car, in the opposite
direction. Going by the scene mahazar the place
of hit was therefore on the western half portion of
the road, which was the wrong side of the car.
But the place of collision as noted in the scene
mahazar alone is not decisive in a case like this.
The crime registered by the police was
investigated and the second respondent, who was
driving the bus was prosecuted for the offences
under secs.279 and 304(A) IPC. Ext.A6 is the copy
of the police charge. If the result of investigation
as borne out by Ext.A6 police charge is anything
to go by, the car driver was confused on seeing
the bus coming through the wrong side of the road
in enormous speed. As per the police charge the
car driver took his vehicle to the western side of
the road with a view to avoid a head-on collision
with the bus, but the bus driver all on a sudden
changed his mind and swerved the bus to the
western side of the road, with the result the place
of collision happened to be on the wrong side of
the car. As I mentioned at the outset, no
independent evidence is forthcoming to prove the
occurrence. Therefore this tribunal has
necessarily to depend on the records in the
criminal case. As pointed out by the learned
counsel for the petitioners, the investigation
conducted by the police was an official act and it
must be presumed to have been done in good
faith. Ext.A6 police charge is prima facie
indicative of the case of the petitioners that the
accident was due to the negligence of the second
respondent.”
The Tribunal did not believe the evidence of RW1, driver of the
appellant as it is self serving and the driver of the appellant
MFA.1385/2001 3
Corporation also in cross examination deposed that he was involved
in other accident cases also and after considering that the Tribunal
held that the negligence can be attributed to the driver of the
appellant’s bus. Driver of the bus, though a party to the case did not
file any appeal. The Tribunal also found that the monthly salary of
the deceased driver was Rs.3,160/=. No amount was granted for
future prospects. A driver of the University will get yearly increments
as well as benefits of wage revisions as per the Pay Commission
Reports. But, the Tribunal has taken only Rs.1,800/= as the monthly
contribution and only 12 was taken as the multiplier. The deceased
was aged only 34 years. The Supreme Court held that except in
exceptional circumstances, the second schedule should be taken as
guidelines for fixing compensation even in claims under section 166.
Going by the second schedule, the apt multiplier will be 17. But, the
Tribunal has taken only 12 as the multiplier. Therefore, even if a
small percentage of contributory negligence is fixed on the part of the
car driver, the total compensation will make no difference. The
compensation granted under other heads are also very meagre. For
loss of love and affection and parental care to the child aged 1=
years, only Rs.5,000/= was awarded. It is stated that for pain and
suffering of the first claimant wife, Rs.10,000/= was granted, that is
for loss of consortium. But, that is too meagre considering the age of
MFA.1385/2001 4
the wife (53) as at the young age she became a widow and the 1=
year old child lost the father. Considering the totality of the
circumstances, we are of the view that only just and reasonable
compensation was awarded and no interference is required in the
impugned award.
The appeal is dismissed.
J.B.KOSHY
JUDGE
THOMAS P. JOSEPH
JUDGE
tks