(Prayer: This M.F.A is filed Under Section 173(1) of MV Act Against the judgment and award dated 09.02.2010 passed in MVC.No.268/2004 on the file of the Principal District Judge and MACT, Dakshina Kannada, Mangaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.This M.F.A is filed Under Section 173(1) of MV Act against the judgment and award dated 09.02.2010 passed in MVC.No.268/2004 on the file of the Principal District Judge and MACT, Dakshina Kannada, Mangaluru, awarding a compensation of Rs.54,420/- with interest at 6% p.a. from the date of petition till the date of payment.)1. These two appeals are filed by the Managing Director, KSRTC and the National Insurance Company Limited, respectively challenging the judgment and award dated 09.02.2010, passed in M.V.C.No.268/2004, on the file of the Principal District Judge and MACT, Dakshina Kannada, Mangalore ('the Tribunal' for short), questioning the compensation awarded.2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.3. The factual matrix of the case is that on 09.02.2000, the KSRTC bus bearing registration No.KA-09-F-2403 was plying on its schedule route from Mangaluru to Mysuru. When it reached a place called Dasakodi in Balthila Village on NH-48, a lorry bearing registration No.CRX-9192 belonging to respondent No.1 came in a high speed and rash and negligent manner and dashed against the KSRTC bus. As a result, the bus sustained several damages and the vehicle was towed from the accident spot to its workshop at Kuntikana, Mangalore for carrying out the repairs. Thereafter, the bus was repaired at a cost of Rs.19,037/-, which includes labour and material charges. The said bus could not be plied on road from the date of accident till its repair i.e., on 09.04.2000. Therefore, there is a loss of revenue for 51 days and it is estimated at Rs.2,72,952/-. Hence, the KSRTC claimed the compensation of Rs.2,91,989/-.4. On issuance of notice, the respondent No.1 was placed exparte. Respondent No.2 - Insurance Company appeared through its counsel and filed the written statement denying the nature of damage, alleged cost of repairs and loss of revenue. It contended that the bus is very old model and has no market value. It denied the negligence on the part of the driver of the lorry. It also contended that the accident was due to the negligence on the part of the driver of the KSRTC bus.5. The claimant in order to substantiate its contention, examined three witnesses as P.Ws.1 to 3 and got marked the documents at Exs.P.1 to 7(a). On the other hand, the respondents have not examined any witnesses but got marked two documents at Exs.R1 and 2.6. The Tribunal after considering both oral and documentary evidence placed on its record, allowed the claim petition in part granting compensation of Rs.54,420/- with interest at the rate of 6% per annum from the date of petition till the date of payment.7. Aggrieved by the judgment and award of the Tribunal, KSRTC and the Insurance Company have filed these two appeals.8. The claimant in M.F.A.No.4927/2010 would contend that the Tribunal committed an error in apportioning the negligence between the driver of the lorry and the driver of the bus at the ratio of 75:25 respectively. The Tribunal failed to take note of the sketch, which clearly shows that the tanker moved to the wrong side and dashed to the bus. The mahazar also shows that the bus was on the extreme left side of the road and its left wheels were on the mud portion of the road. Hence, the Tribunal is not justified in holding contributory negligence against both the drivers. The award ought to have been made only against the driver of the lorry.9. The Tribunal also arbitrarily awarded the compensation for damages and idling charges. Though the learned Judge has seen that the bus was idle for 51 days, but awarded only for ten days without any basis. The Tribunal ought to have awarded idling charges from 19.02.2000 to 09.04.2000 at the rate of Rs.5,352/- per day. Hence, it requires to set aside the apportionment of contributory negligence.10. The learned counsel for the appellant in M.F.A.No.4927/2010 in support of her arguments has reiterated the grounds urged in the appeal memo and would contend that when the vehicle has sustained substantial damages and when the same could not be plied for a period of 51 days, the Tribunal has committed an error in only awarding loss of income for a period of ten days.11. The learned counsel in support of her arguments relied upon the Division Bench judgment of this Court in the case of KARNATAKA STATE ROAD TRANSPORT CORPORATION v. ABDUL MAJEED reported in ILR 1990 KAR 1493, wherein it is held that the Section confers jurisdiction on the Tribunal to award compensation both for personal injury as well as damages to property of a third party arising out of an accident. The learned counsel referring this judgment would contend that in paragraph No.11 of the judgment, the Court has held that the loss of income for a period of 189 days is allowed as against the claim of 240 days.12. The learned counsel also relied upon the Madras High Court judgment in the case of RAJENDRAN AND ANOTHER v. SELVARAJ AND ANOTHER reported in (2000) 2 Mad LJ 814 and brought to the notice of this Court that the meaning of the word "property" would include a right to use or enjoyment for a beneficial right over all tangible things. The duty of the Tribunal in assessing such economic loss or loss of income arising from damage to property to adopt a strict assessment. The process of assessment of damages is bound to continue or change according to the prevailing attitudes and views. The learned counsel referring this judgment would contend that the period of assessment could be only the reasonable maximum period required to restore the property to its original condition. It cannot depend upon the self-serving plea of the claimant that he was unable to do so within the reasonable period for his own reasons or that he would not condescend to restore the property to its original position within that period. The claimant cannot keep its vehicle idle without being sent for repairs for several months or years and claim loss of income for such indefinite period.13. The appellant in M.F.A.No.4020/2010 would contend that awarding of compensation of Rs.54,420/- is not based on proper appreciation of the pleadings, evidence and documents and the Tribunal erroneously held the negligence in the ratio of 25:75 on the part of the driver of the bus and on the part of the driver of the lorry, respectively. The driver of the lorry, who is examined as R.W.1 has clearly stated that the bus came at a high speed in a rash and negligent manner and after hitting the lorry dragged the lorry back to a distance of 20 feet. This indicates the negligence on the part of the driver of the KSRTC bus only. Hence, the Tribunal ought to have held the contributory negligence in the ratio of 50:50.14. The vehicle in question has sustained only certain minor damages and granting of idling charges for ten days in a sum of Rs.53,520/- is only imaginative and is not proved by proper documentary proof. The learned counsel would also submit that as per Rule 69-A of the Karnataka Motor Vehicles Rules, 1989, it is a pre-condition while granting the permit that a fleet owner having more than 51 buses shall have 10% of it as spare buses only to run in emergency conditions. If the vehicle is not run, it will be in a garage and if it is run in the route in which the damaged vehicle was run, the KSRTC will earn the same amount and there is no revenue loss to them. Therefore, there is no credible proof regarding loss assessed by the Tribunal to the tune of Rs.53,520/-.15. The other contention of the learned counsel is that granting compensation of Rs.19,037/- over the head cost of repairs is highly excessive and it is disproportionate to the minor nature of damages caused. Hence it requires interfere of this Court.16. The learned counsel in support of his arguments, brought to the notice of this Court the order passed by this Court in M.F.A.No.22143/2009 dated 10.01.2014 confirming the non- granting of compensation for loss of revenue to the Corporation. Referring this judgment, the learned counsel would contend that the Tribunal committed an error in awarding the compensation under the head loss of revenue for a period of ten days. Hence, it requires interfere of this Court.17. Having heard the arguments of the learned counsel for the appellant in both the appeals and on perusal of the material available on record, the points that arise for the consideration of this Court are:(i) Whether the Tribunal has committed an error in apportioning the contributory negligence in the ratio of 25:75 on the part of the driver of the bus and on the part of the driver of the lorry, respectively as contended in M.F.A.No.4927/2010?(ii) Whether the Tribunal has committed an error in coming to the conclusion of contributory negligence in the ratio of 25:75 instead of 50:50 as contended in M.F.A.No.4927/2010?(iii) Whether the Tribunal has committed an error in not granting the compensation for idling charges for a period of 51 days?(iv) Whether the Tribunal has committed an error in granting the idling charges for a period of ten days.(v) What order?Point Nos.(i) and (ii):18. Having heard the arguments of the learned counsel for the appellant in both the appeals, this Court has to re-consider the material available on record with regard to the contributory negligence. The claimant has examined the driver of the KSRTC bus as P.W.1 and he reiterates averments of the claim petition and through P.W.1 got marked the documents at Exs.P.1 to 7(a). In the cross-examination of P.W.1, it is elicited that he has not given complaint before the police. The police have recorded his statement. It is elicited that at the place of accident, road is straight. The accident was due to head on collusion. On the right side of his bus there was a road to a width of 20 feet. On the left side there was no space for road. Left side wheels of the bus were on the mud road and right side wheels on the tar road. He noticed the vehicle coming from opposite direction from a distance of 20 feet. The opposite vehicle came to the right side and dashed. On its right side, there was space. A suggestion was made that the accident was due to his mistake and not due to the mistake of driver of the tanker. The said suggestion was denied.19. The evidence of P.W.2 and P.W.3 is not material in respect of contributory negligence.20. On the other hand, the respondents have examined the driver of the lorry as R.W.1 and he reiterates the defence of the Insurance Company in the oral evidence. R.W.1 says that KSRTC bus which came in opposite direction came in a rash and negligent manner and hit the right side front portion of the tanker and dragged the lorry to an extent of 10 feet and stopped the bus near the mud road. He says that the mahazar and sketch prepared by the police is not correct. They have not shown the place in which the bus hit the lorry. The police have filed a charge sheet against him. He admits that he pleaded the guilt and paid the fine.21. In the cross-examination, he says that he has lodged the complaint against the driver of the KSRTC bus in respect of the accident in writing before Bantwal Police Station. The case was also registered against the driver of the KSRTC bus. The police have filed the charge-sheet against him. He admits that he cannot produce the CC of the complaint and charge-sheet. It is suggested that due to his negligence, he went to the wrong side and dashed against the KSRTC bus. The said suggestion was denied. However, he admits that he has paid the fine of Rs.1,000/- before the JMFC, Bantwal. He further admits that as per Ex.P.4, his vehicle was standing on the middle of the road.22. Having considered both the pleadings and evidence available on record, particularly the evidence of P.W.1 and R.W.1 and also the sketch, which is marked as Ex.P.4, it is clear that it is a head on collusion between the two vehicles. The sketch discloses the place of accident. The lorry came towards the right side of the road and dashed against the KSRTC bus and on the right side of lorry there was a 12 feet road and on the left side of the road in which the bus was proceeding, there was a 10 feet road. This clearly indicates that the KSRTC bus was proceeding on the left side of the road and the road is also a down gradient road. Though P.W.1 admits that it was a straight road, the sketch discloses that there was a curve in the road.23. R.W.1 in his evidence he says that Ex.P.4 - sketch has not been properly drawn. It is the evidence of R.W.1 that the bus after hitting the right front portion of the lorry, dragged the lorry for 10 feet and the said evidence is contrary to the sketch Ex.P.4. The IMV report - Ex.P.5 discloses the damage to the tanker's front right portion. Hence, it is clear that the front portion of the lorry went and dashed against the right portion of the bus and the width of the road is 22 feet.24. Having taken note of the material available on record, the driver of the lorry categorically admitted that he paid the fine amount before the JMFC Court. Though he claims he has lodged complaint against the driver of bus before the Bantwal police, he has not placed any documentary proof before the Court for having lodged the complaint. If the accident was taken place in the middle of the road, then there would have been substance in the argument of the learned counsel for the Insurance Company. There was a 23 feet road and there was space towards his side to the extent of 12 feet.25. Having considered the admission of R.W.1 that he has paid the fine amount and charge-sheet has been filed against him, in order to rebut the admission that he has paid the fine amount due to any compulsion, he has not placed any material and there is no evidence on the part of R.W.1 that he paid the fine amount due to any external force. The only reason assigned in the affidavit is that he was not having any income to engage an advocate and hence paid the fine. The Tribunal erroneously discussed in paragraph No.17 of its judgment that that the driver of the bus has admitted in his cross-examination that at the place of accident road is straight, the accident was due to head on collusion, on the right side of the bus there was a road to a width of 20 feet and on the left side there was no space. On perusal of the spot sketch, it is seen that the tar road was 15 feet wide at the place of accident and the accident took place in the middle of the road. The said observation is erroneous and the accident is not on the middle of the road, as observed by the Tribunal. No doubt, P.W.1 says that it was a head on collusion. When two vehicles are involved in the head on collusion, the same is head on collusion only and the fact that whether the driver of the KSRTC bus has contributed to the accident has to be looked into. Though P.W.1 admits that it was a straight road, the sketch clearly shows that it was a curve road. However, the accident spot is not disputed and there is no material to show that he was on extreme left side of the road. No doubt, the driver of the lorry went towards little right side and dashed against the bus.26. Having taken note of the material available on record, I do not find any error committed by the Tribunal in coming to the conclusion that there was a contributory negligence to the extent of 25:75. Hence, I do not find any error committed by the Tribunal in apportioning the contributory negligence. The contention of the learned counsel for the claimant that there was no negligence on the part of the driver of the bus also cannot be accepted and the very contention of the Insurance Company that negligence ought to have been 50:50 also cannot be accepted. The records disclose that the driver of the lorry went towards the right side and dashed against the bus and the bus was also not on the extreme left side of the road and tyre was on the left side tar road, as deposed by P.W.1. The admission of P.W.1 that that he took the bus to extreme left side cannot be accepted and he has not disputed the place of accident shown in sketch Ex.P.4. Hence, there are no reasons to interfere with regard to the contributory negligence arrived by the Tribunal and hence answered point No.1 as negative.Point Nos.(iii) and (iv):27. Having considered the grounds urged in the respective appeals, there is no dispute with regard to the damage caused to both the vehicles and also the bus has sustained damages as mentioned in the IMV report. The accident took place on 09.02.2000 and it the case of the claimant that repair work was completed on 09.04.2000 and eight workers attended the repair work. The bill discloses that he has spent an amount of Rs.19,037/- which includes labour, material and overhead charges. The evidence of P.W.2 and P.W.3 is important to consider the case on hand with regard to the damage as well as loss of income. P.W.2 - Chargeman, KSRTC, in his evidence in the form of an affidavit mentioned the damages and bus was repaired spending Rs.19,037/-.28. In the cross-examination, P.W.2 categorically admits that he only know about the vehicle being damaged in the accident. For the first time, he saw the vehicle on 19.02.2000. He further admits that job card means details of repair works after attending to the repairs. Six days after effecting repairs Ex.P.9 was prepared by the concerned clerk. Before attending to the repairs, estimation will be prepared by the Engineer. He admits that for each day employee required to work for eight hours. On the basis of their salary, per hour rate is determined. All the seven workers have not worked at a time for repairs. He categorically admits that the repairs could have been attended within ten days.29. P.W.3 - Divisional Mechanical Engineer in his affidavit he claims an amount of Rs.3,21,120/- based on non-use of the bus for a period of 60 days at the rate of Rs.5,352/- per day. He was subjected to cross-examination. In the cross-examination, he admits that the bus was towed to the Divisional Workshop on 19.02.2000 and he cannot say where the vehicle was kept till 19.02.2000. He further admits that he cannot say when the vehicle was repaired or maintained for the last time. At that time, more than 100 routes were at Mangaluru and they will not maintain profit and loss account in respect of all the routes. He admits that most of the routes are running under loss. The profit will be assessed subject to the condition of the roads, diesel consumption, model of the vehicle, number of passengers, maintenance and repairs of the spare parts. Ex.P.10 is in respect of revenue pertaining to the conductor in the said route. On the basis of the waybill, they have mentioned the figures in Ex.P.10. He admits that Ex.P.10 is for the month of February.30. Having considered the evidence of P.W.2 and P.W.3, there is no much dispute with regard to the amount spent for repairs and vehicle was towed to the workshop on 19.02.2000 after ten days of the accident. P.W.2 categorically admits that repairs could have been attended within ten days. There is no effective cross-examination of P.W.3 when the vehicle was repaired and whether any other alternative vehicle was used in the said route or not. The Tribunal while awarding the idling charges only took note of ten days of repair of vehicle. The Ex.P.10 is produced with regard to the schedule wise daily earnings extract and the claim was made to the extent of Rs.5,352/- per day. On perusal of Ex.P.9 - job card, the vehicle was sent after repair on 09.04.2000 and the job card is also dated 19.02.2000 and the vehicle was handed over to KSRTC on 09.04.2000.31. Having taken note of the admission of P.W.2 that the repairs would have been done within ten days and also taking note the damages caused to the bus in terms of IMV report - Ex.P.5 and merely because the vehicle was in the Divisional Workshop for a period of more than 50 days, the period of vehicle in the Divisional workshop cannot be taken into for assessing the idling charges. The Tribunal has rightly taken the loss of income for a period of ten days. Taking note of extent of damages caused to the vehicle also, the loss of income would be maximum for ten days. Hence, I do not find any error in taking the loss of income for a period of ten days.32. The other contention of the Insurance Company is that as per Rule 69-A of the Karnataka Motor Vehicles Rules, 1989, there was a pre-condition while granting the permit that the owner could have 10% of more buses and make use of the same to run the said buses in emergency requirement. The judgment of this Court considering the grounds urged by the
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Company passed in M.F.A.No.22143/2009 held that the Tribunal was justified in disallowing the claim for award of loss of revenue to the Corporation. However, the learned counsel for the claimant relied upon the Division Bench judgment of this Court. When the Division Bench judgment is referred and discussed with regard to the damage to the property, instead of relying upon the single judge judgment, as a propriety, this Court has to rely upon the principles laid down in the judgment in the case of Abdul Majeed (supra) and so also judgment of Madras High Court in the case of Rajendran (supra) with regard to awarding the compensation both for personal injury as well as damages to property of a third party arising out of an accident.33. The fact that the vehicle was damaged and it was repaired is not in dispute and also spent an amount of Rs.19,037/- for repair of the vehicle is also not on higher side as contended by the Insurance Company taking into note of the damages caused to the bus in terms of Ex.P.5 - IMV report. Hence, I do not find any force in the contention of the Insurance Company that higher compensation was awarded. Though the counsel would contend that the other alternative vehicle was run in the said route and there is no any cross examination to that effect and hence the said judgment is not applicable. In the said judgment there was an admission running the vehicle in the said route and hence this court confirmed the judgment of the tribunal not allowing the idling charges.34. The other contention of the claimant KSRTC that the Tribunal ought to have awarded idling charges for a period of 51 days also cannot be accepted. I have already pointed out that the damages is not to the extent of keeping the vehicle for a period of two months in the Divisional Workshop and the specific admission of P.W.2 is clear that it would have been repaired within ten days. Hence, the Tribunal has taken note of the same and awarded the loss of income for a period of ten days. Hence, I do not find any merit in both the appeals.35. In view of the discussions made above, I pass the following:ORDER(i) The appeals are dismissed.(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal, forthwith.(iii) The Registry is directed to send the records to the concerned Tribunal, forthwith.