Sushil Kumar v. K.S.R.T.C

1. These two appeals are directed against the common judgment and awards dated 29-11-1976 passed by the Member, Motor Accidents Claim's Tribunal, Bangalore-I, in MC (MVC) Nos. 138 and 197 of 1974, on his file.

2. These appeals arise this way:

One Yellappan, 35 years old, working as a soldier in Madras Engineering Group, was on leave in Bangalore. On 12-11-1973 at about 8.30 PM, he was going on cycle from west to east along Victoria Road on its proper side. Then, a bus, belonging to respondent-1, the General Manager, Karnataka State Road Transport Corporation, was coming from the opposite direction, driven in a rash and negligent manner by RW 1 Anwar Ali Khan, came on its off side and dashed against the cycle as a result of which Yellappan was thrown off, sustained fatal injuries and succumbed to the same on the same day in the Bowring Hospital. He was drawing, according to the petitioners, Rs. 300 per month as his salary at the time of the accident.

3. On these averments, one Smt. Krishna Kumari who claimed to be the widow of Yellappan, submitted an application to the Claims Tribunal, Bangalore, claiming compensation of Rs. 50,000 on the above facts. That application was numbered as MC (MVC) 138 of 1974. Smt. Chandrakantha also submitted an application at MC (MVC) No. 197 of 1974 claiming that she was the legally wedded wife of Yellappan and that she had a minor son by name Susheel Kumar by Yellappan and she claimed compensation of Rs. 50,000 for herself and for her minor son. In the course of the pendency of the application, however, she died and the petition was continued by her son Susheel Kumar with Muniyellappa as guardian.

4. These petitions were resisted by the respondents-the Karnataka State Road Transport Corporation, the driver of the bus as well as the insurer. They contended that the accident was not the result of rash and negligent driving of the bus in question; but, that it was due to the rash and negligent driving of a motorcyclist who dashed against the cycle and ran. They alternatively contended that the compensation claimed was exorbitant. They denied that neither of the claimants was the legally wedded wife of Yellappan (the deceased).

5. On these pleadings, the following issues were raised by the Tribunal in MC (MYC) No. 138 of 1974:

i) Whether the petitioner proves that her husband Yellappan died due to the negligence of the driver of the bus MYF 1906?

ii) What was the age of the deceased and what was his income at the time of his death and what amount was he contributing towards the maintenance of the petitioner?

iii) Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?

6. The Tribunal raised the following issues in MC (MVC) 197 of 1974:

i) Whether the petitioner proves that his father Yellappan died due to the negligence of the driver of bus No. MYF 1906?

ii) What was the age of the deceased, what was his income at the time of his death and what amount was he contributing towards the maintenance of the petitioner?

iii) Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?

7. These two petitions were heard together for obvious reasons and during inquiry PWs. 1 to 12 were examined on behalf of the petitioners and Ext-P-1 to P-5 were got marked. On behalf of the respondents, the driver of the bus was examined as RW 1 and Exts. R-1 and R-3 were got marked.

8. The Tribunal, appreciating the evidence on record, held that the accident was the result of the rash and negligent driving of the bus and that Yellappan died as a result of the injuries sustained in the accident. In that view, the Tribunal held that Smt. Krishna Kumari who was the legally wedded wife of the deceased was entitled to compensation of Rs. 14,000 along with cost and interest.

9. The Tribunal dismissed the application of Susheel Kumar holding that he was an illegitimate son of Yellappan and, as such, he was not entitled to compensation. Aggrieved by the said judgment and award, the minor claimant, through his guardian, has come up in appeal before this Court in Miscellaneous First Appeal No. 188 of 1977 and the Karnataka State Road Transport Corporation has instituted Misc. First Appeal No. 244 of 1977.

10. The learned Advocate for the Karnataka State Road Transport Corporation in Misc. First Appeal No. 244 of 1977, vehemently contended that the Tribunal was not justified in coming to the conclusion that the accident was the result of the rash and negligent driving of the bus in question. He submitted that the evidence on record disclosed that it was one motor cyclist who caused the accident.

11. As against that, the claimants in both the cases submitted that the accident was the result of the rash and negligent driving of the bus in question and the appellant in Misc. First Appeal No. 188 of 1977 further submitted that the Tribunal was not justified in not awarding compensation to Susheel Kumar even though he was found to be the illegitimate son of Yellappan. The Counsel further argued that the compensation awarded in the case was inadequate.

12. The points, therefore, that arise for our consideration in these appeals are:

(1) whether the Tribunal was justified in recording its finding that the accident was the result of the rash and negligent driving of the bus MYF 1906?

(2) Whether the Tribunal was justified in not awarding any compensation to Susheel Kumar, (the claimant in Misc. First Appeal No. 188 of 1977)?

(3) Whether the compensation awarded is just and proper?

13. It is the case of the claimants that Yellappan was going on the Victoria Road when suddenly the bus in question came from the opposite side, came on its wrong side being driven in a rash and negligent manner and hit the cycle, thus causing the accident which resulted in the cyclist viz., Yellappan, sustaining fatal injuries. He succumbed to the same on the same day.

14. As against that, it is the case of the driver/respondent that the accident was the result of the rash and negligent driving of the motor-cycle by its rider, an unknown person who hit the cycle.

15. The Tribunal, apprecialing the evidence on record, has held that there is no substance in the version of the respondents that an unknown motor-cyclist hit the cycle and thus caused the accident. It has come to the positive conclusion that the bus in question hit the cycle and caused the accident.

16. The learned Advocate for the Karnataka State Road Transport Corporation in Misc. First Appeal No. 244 of 1977 vehemently contended that two important factors brought on record would go to show that it was not the bus which hit the cycle. He pressed into service the first circumstance viz., that the blood mark was seen about 5 feet away from the front side of the bus and secondly that PW 2 Morris supported the version of PW 1 Anwar Ali Khan, the driver, that it was the motor cyclist who hit the cycle. Those circumstances are considered by the Tribunal.

17. Adverting to the fact that the blood mark was seen about 5 feet away from the front side of the bus, the learned Advocate for the claimants submitted that when the bus hit the cycle with force, it was quite probable and natural that the cyclist was thrown off and he fell a few feet away from the bus and the blood mark was seen at that spot. The explanation so offered is consistent with the facts of the case. It is quite reasonable and probable. We accept it. When the cycle which is a light vehicle is hit by a bus which is certainly a heavy vehicle, it is quite natural and probable that the rider of the cycle would be thrown off. He would not fall at the spot of collision. That is the reason why blood marks are seen a few feet away from the bus. That does not establish, as made out by the learned Advocate for the Karnataka State Road Transport Corporation that the accident occured 5 feet away from the bus.

18. Adverting to the theory of the Motor-cyclist, the Tribunal has rightly pointed that at the earliest opportunity when the injured Yellappan was taken to the Bowring Hospital by the driver RW 1 Anwar Ali Khan and PW 2 Morris, they disclosed to the doctor as per Ext-P-4 that the accident was the result of the bus hitting the cycle. That is proved in the evidence of PW 12 Dr. M. Ramaiah. The Tribunal has rightly placed reliance on the testimony of this disinterested witness, especially so when he has recorded the statement as per exhibit P-4 at the earliest opportunity. That conclusively disproves the version of the respondents now made out before the Tribunal that the accident was the result of some motor-cycle hitting aga inst the cycle. It is obviously a version trotted out before the Criminal Court with the assistance of PW 3 Morris who was no doubt an obliging witness before the Magistrate in favour of the accused. We see no reason to differ from that finding of the Tribunal. The earlier statement made by both the driver of the bus and PW 2 Morris would conclusively establish that both of them submitted that it was the bus which hit the cycle. That is also the evidence of PW 1 the Constable who has no axe to grind in the case. Hence, we have no hesitation to concur with the finding of the Tribunal that the accident was the result of the rash and negligent driving of the bus in question by its driver.

19. it may also be pointed out in this context that the Investigating Officer examined as PW 5 has deposed before the Tribunal that when he went to see the scene of occurrence he found that the bus had gone on its off side and hit the cycle. The cycle was actually entangled beneath the front wheel of the bus when he saw. That further lends support to our conclusion that the accident was the result of the rash and negligent driving of the bus in question by its driver RW 1 Anwar Ali Khan.

20. That leads us to the question whether Susheel kumar, the illegitimate son of Yellappan, is entitled to claim compensation for the death of Yellappan.

21. In this connection, our attention was invited to a decision of the High Court of Punjab & Hariyana, in the case of Gurnit Singh v. Ajit Singh(1). In that case, his lordship Justice O. Chinnappa Reddy, as he then was of the said High Court, rendering the decision, has observed in paragraph 4 of the judgment on this controversial point thus:

“Even otherwise, I do not see any justification for holding that illegitimate children are not entitled to sue for compensation under the Indian Fatal Accidents Act. Section I.A provides that an action for compensation shall be for the benefit of the wife, husband, parent and child, if any, of the deceased. Sec. 4 defines child as including ‘son and daughter and grandson and granddaughter and step-son and step daughter’. The learned counsel for the respondents argued that the inclusion of step-son and step-daughter in the definition of ‘child’ showed that the expression ‘child’ was meant to include only legitimate off-spring and exclude illegitimate off-spring. I do not agree. If the expression ‘child’ is defined to include a child not born of the loins of the deceassed, I see no reason to interpret the expression so as to exclude a child born of the loins of the deceased. Under the Hindu Law an illegitimate child is entitled to be maintained by the father as much as a legitimate child: vide Vellayappa v. Natarajan(2). The Hindu Adoptions and Maintenance Act applies to ‘any child, legitimate or illegitimate’; vide Section 2(1) explanation. Section 125 Cr. P.C provides for an order for maintenance against any person neglecting to maintain his legitimate or illegitimate child. Thus, if a parent is under an obligation to maintain his illegitimate child there is no reason why the illegitimate child should not be entitled to compensation from the person responsible for the death of the parent. There is no justification whatever for introducing the qualifying word ‘legitimate’ to prefix the word child in Section 1-A of the Fatal Accidents Act.”

22. We respectfully agree with the above observations made by His Lordship.

23. Under S. 110-A of the Motor Vehicles Act, 1930, in the case of death of a person, all or any of his legal representatives are entitled to apply for compensation. The term ‘legal representatives’ is defined in Rule 342(2) of the Rules framed under the Motor Vehicles Act; it reads:

“Legal representative” shall have the meaning assigned to it under clause (11) of Section 2 of the Code of Civil Procedure, 1908.”

24. This came up for consideration by this Court in the case of M. Ayyappan v. Maktar Singh(3). This Court struck down the rule restricting the definition of the term ‘legal representatives’ and observed that it has to be read in juxtaposition with the term ‘dependents’ found in S. 1-A of the Fatal Accidents Act. This Court observed that the term ‘legal representative’ means the representative recognised by law. It included persons' referred to as ‘representative’ in S. 1-A of the Fatal Accidents Act, viz., the surviving spouse, the surviving parents and the child of the deceased.

25. That being so, the term ‘child’ has to be given the wider connotation as ruled by his Lordship O. Chinnappa Reddy J., in the aforesaid decision. It is obvious that even the illegitimate child was dependent on Yellappan. As a, result of the death of Yellappan, he has suffered loss of dependency as he, is also included in the term ‘child’ used in S. 1-A of the Fatal Accidents Act, although he is an illegitimate child of Yellappan. We, therefore, hold that even Susheel Kumar is entitled for compensation over the death of Yellappan, differing from the finding of the Tribunal per contra.

26. That leads us to the quantum of compensation to which the claimants are entitled. This Tribunal has found that the deceased was drawing Rs. 300 per month at the time of his death and that he was aged about 35 years. The Tribunal has further found that Krishna Kumari, the widow of Yellappan, was getting pension of Rs. 60 per month. We have to work out the compensation on the basis of the above data.

27. If the deceased was getting Rs. 300 per month, it could safely be concluded that he was sparing half of it for the maintenance of his family. That means that he was spending Rs. 150 per month for the family. Krishna Kumari, the widow of Yellappan, is getting Rs. 60 per month as pension now. That amount, therefore, has to of dependency. The net loss of annual Rs. 150, we get Rs. 90 as the net loss of debendency. The net loss of annual dependency would be Rs. 1,000. The deceased, if he were alive, could earn his salary of Rs. 300 per month for twenty years more, even taking his age of retirement as 55 years. He had, besides, prospects of future promotion. Therefore, the total loss of dependency would be, at Rs. 1000 per year, Rs. 21,000. It is true that on account of lumpsum grant and uncertainties of life deduction has to be given. Having regard to the fact that the deceased had prospects of future promotion, we deem it just and proper to deduct Rs. 4,000 under those heads and we get net loss of dependency at Rs. 17,000. To this, has to be added Rs. 5,000 under the head ‘loss to the estate of the deceased’ as he lost future happy life. That gives us the figure 22,000. The next point for consideration would be the allocation of this amount between the petitioners in MC (MVC) Nos. 133 and 197 of 1974. It is in evidence that the widow of yellappa is getting Rs. 60 per month as pension. Having regard to this, we deem it just and proper to affirm the award of Rs. 14,000 in all made by the Tribunal in her favour and the rest of Rs. 8,000 is awarded to Susheel Kumar, the illegitimate son of Yellappan.

28. In the result, therefore, Misc. First Appeal No. 188 of 1977, instituted by Susheel Kumar, is allowed. The judgment and award passed by the Tribunal with regard to Susheel Kumar, the claimant in MC (MVC) No. 157 of 1974, are hereby set aside. He is awarded compensation of Rs. 8,000 from the respondents. The compensation awarded to Krishna Kumari in MC (MVC) No. 138 of 1974 stands confirmed. The appeal by the Karnataka State Road Transport Corporation (Misc. First Appeal No. 244 of 1977) is hereby dismissed. The Karnataka State Road Transport Corporation shall pay the additional amount of compensation awarded in favour of Susheel Kumar at Rs. 8,000 with interest at 6 per cent per annum from the date of the petition till payment along with costs of Susheel Kumar before the Tribunal and before this Court. The Karnataka State Road Transport Corporation shall bear its own costs. Out of the compensation Rs. 8,000/- awarded in favour of Susheel Kumar, the minor, Rs. 8,000 shall be deposited in his name, in a scheduled Bank by his guardian till such time as the minor attains the age of majority. In the meanwhile, the guardian is at liberty to withdraw the interest accruing on the said sum from time to time and spend the same for the welfare of the minor.