Karnataka High Court
Smt Kamalamma vs The Managing Director on 31 July, 2024
Author: H T Narendra Prasad
Bench: H T Narendra Prasad
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6435 OF 2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7860 OF 2018(MV)
IN MFA 6435/2018
BETWEEN:
THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD
SHANTHINAGAR
BENGALURU-560027.
NOW THROUGH CHIEF LAW OFFICER.
...APPELLANT
(BY SRI. NAGARAJA K.,ADVOCATE)
AND:
1. SMT KAMALAMMA
Digitally signed by W/O.SRI.ERAIAH
HEMALATHA A AGED ABOUT 51 YEARS
Location: HIGH
COURT OF
KARNATAKA 2. CHANDRIKA B E
D/O SRI ERAIAH
AGED MAJOR
R1 & R2 ARE R/O NO.699
1ST E CROSS, 4TH BLOCK
BASAVESHWARANAGAR
BANGALORE.
3. B E MURALIDHARA
S/O ERAIAH
AGED MAJOR
R/O.NO.20, KRISHNA NIVAS
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
DASANAPURA, MAAKALI POST
BANGALORE-560021.
4. B E PARAMESHWARA
S/O ERAIAH
AGED MAJOR
R/O.NO.222,(822), 10TH COSS
ASHRAYA NAGARA
ADAKAMARANAHALLI
BANGALORE-562123.
...RESPONDENTS
(BY SRI.SHAM A NEMICAL., ADVOCATE FOR R1:
NOTICE TO R2 & R4 ARE SERVED AND UNREPRESENTED
NOTICE TO R3 IS DISPENSED WITH
V/O DATED: 31.07.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04/05/2018,
PASSED IN MVC NO.176/2017, ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER,
MACT, (SCCH-15), BENGALURU, AWARDING COMPENSATION
OF RS.4,38,500/- WITH INTEREST @ 6% P.A., FROM THE DATE
OF THE PETITION TILL REALIZATION.
IN MFA 7860/2018
BETWEEN:
1. SMT KAMALAMMA
W/O.SRI.ERAIAH
AGED ABOUT 51 YEARS
2. CHANDRIKA B E
D/O SRI ERAIAH
AGED MAJOR
R1 & R2 ARE R/O NO.699
1ST E CROSS, 4TH BLOCK
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
BASAVESHWARANAGAR
BANGALORE.
... APPELLANTS
(BY SRI. SHAM A NEMICAL, ADVCOATE)
AND:
1. THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD
SHANTHINAGAR
BENGALURU-560027.
2. B E MURALIDHARA
S/O ERAIAH
AGED MAJOR
R/O.NO.20, KRISHNA NIVAS
DASANAPURA, MAAKALI POST
BANGALORE-21.
3. B E PARAMESHWARA
S/O ERAIAH
AGED MAJOR
R/O.NO.222,(822), 10TH COSS
ASHRAYA NAGARA, ADAKAMARANAHALLI
BANGALORE-562123.
...RESPONDENTS
(BY SRI. NAGARAJA K, ADVOCATE FOR R1:
NOTICE TO R2 & R3 ARE DISPENSED WITH
V/O DATED: 31.07.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 04.05.2018
PASSED IN MVC NO.176/2017 ON THE FILE FO THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER
MACT, BENGALURU(SCCH-15) PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
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MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
ORAL JUDGMENT
1. MFA 6435/2018 is filed by the BMTC and MFA 7860/2018 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) challenging the judgment and award dated 04.05.2018 passed by the MACT, Bengaluru in MVC No.176/2017.
2. Facts giving rise to the filing of the appeals briefly stated are that on 13.02.2016, when the deceased Earaih was crossing the road, near Basaveshwara Nagar water tank, Bengaluru, at that time, a BMTC bus bearing registration No.KA-01-F-3716 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
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4. Upon service of notice, the respondent appeared through counsel and filed written statement denying the averments made in the claim petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimants, in order to prove the case, examined claimant No.1 as PW-1, and another witness as PW-2, and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of respondent, one witness was examined as RW-1 but not produced documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.438,500/- along with interest at the rate of 6% p.a. and directed the BMTC to deposit the compensation -6- NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 amount along with interest. Being aggrieved, these appeals have been filed.
6. The learned counsel for the BMTC has raised the following contentions:
INVOLVEMENT OF OFFENDING VEHICLE The learned counsel has submitted that the bus bearing No.KA-01-F-3716 is not involved in the accident. The claimants, in order to make a false claim, have filed the claim petition seeking compensation. To prove the case, the Corporation has examined the driver of the bus as RW-1. The Tribunal without considering this aspect of the matter, has erred in holding that the bus is involved in the accident. The said finding of the Tribunal is contrary to materials available on record.
QUANTUM OF COMPENSATION
a) Firstly, although the claimants claim that the deceased was earning Rs.18,000/- per month by doing real estate business, they have failed to substantiate their claim with supporting documents. Consequently, the -7- NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 Tribunal has correctly assessed the income of the deceased notionally.
b) Secondly, the claimants are wife and major children of the deceased and they are not dependent on the income of the deceased. Therefore, the Tribunal has erred in awarding compensation towards 'loss of dependency'.
c) Lastly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is excessive.
With the above contentions, the learned counsel sought to allow the appeal filed by the BMTC and dismiss the appeal filed by the claimants.
7. On the other hand, the learned counsel for the claimants has raised the following counter-contentions:
INVOLVEMENT OF OFFENDING VEHICLE The learned counsel contended that immediately after the accident, the complaint has been lodged against -8- NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 the driver of the bus. The police has registered FIR against the driver of the bus and after detailed investigation, charge sheet has been filed against him. Subsequently, the bus has been seized. It is very clear from the evidence of PW-1 and PW-2 (eye-witness) and materials available on record that the bus was involved in the accident. Considering all these aspects, the Tribunal has rightly held that the accident occurred due to negligence of the driver of the bus.
QUANTUM OF COMPENSATION
a) Firstly, the claimants assert that the deceased was approximately aged about 77 years at the time of the accident and had a monthly income of Rs.18,000/-.
However, the assessment of income of the deceased at Rs.7,000/- by the Tribunal is unjustified and erroneous.
b) Secondly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ 2782], each of the claimants is entitled to compensation -9- NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 of Rs.40,000/- under the head of 'loss of love and affection and consortium'.
c) Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is inadequate and on the lower side.
With the above contentions, the learned counsel sought to allow the appeal filed by the claimants and dismiss the appeal filed by the BMTC.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal. INVOLVEMENT OF VEHICLE
9. The specific case of the claimants is that on 13.02.2016, when the deceased Earaih was crossing the road, near Basaveshwara Nagar water tank, Bengaluru, at that time, a BMTC bus bearing registration No.KA-01-F- 3716 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the
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NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on 29.02.2016.
10. Immediately after the accident, a complaint has been lodged against the driver of the bus as per Ex.P-1(a). The police registered FIR (Ex.P-1) against the driver of the bus, and following a detailed investigation, charge sheet (Ex.P-14) has been filed against driver of the bus. Subsequently, the bus has been seized by the Police.
11. Therefore, it is very clear from the evidence of PW-1 and PW-2 (eye-witness), and materials available on record that the BMTC bus bearing No.KA-01-F-3716 was involved in the accident occurred on 13.02.2016. The Tribunal has rightly held that the accident occurred due to sole negligence on the part of the driver of the bus. There is no error or infirmity in the said finding of the Tribunal. QUANTUM OF COMPENSATION
12. The claimants claim that deceased was earning Rs.18,000/- per month, but failed to produce supporting
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NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 documents to substantiate their claim. In the absence of proof of income, the notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2016, the notional income of the deceased shall be taken at Rs.9,500/- p.m. Considering the number of dependents, the Tribunal has rightly deducted 1/3rd of the income of the deceased towards personal expenses and remaining has been taken as his contribution to the family. The deceased was aged about 77 years at the time of the accident and multiplier applicable to his age group is '5'. Thus, the claimants are entitled to compensation of Rs.380,000/- (Rs.9,500*12*5*2/3) on account of 'loss of dependency'.
13. In addition, the claimants are entitled to compensation of Rs.15,000/- on account of 'loss of estate' and compensation of Rs.15,000/- on account of 'funeral expenses'. Claimant No.1, wife of the deceased is
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NC: 2024:KHC:30221 MFA No. 6435 of 2018 C/W MFA No. 7860 of 2018 entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium'.
14. In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant Nos.2 to 4, children of the deceased are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium'.
15. The compensation of Rs.88,500/- awarded by the Tribunal under the head of 'medical expenses' is based on the medical bills produced by the claimants and is deemed just and reasonable.
16. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 380,000
Funeral expenses 15,000
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MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of Parental consortium 120,000
Medical expenses 88,500
Total 658,500
17. In the result, the following order is passed:
ORDER
a) The appeal filed by the BMTC is dismissed. The appeal field by the claimants is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of Rs.6,58,500/- as against Rs.4,38,500/- awarded by the Tribunal.
d) The BMTC is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.
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e) The apportionment, deposit and release of amount shall be made in accordance with the terms of the award of the Tribunal.
f) The amount in deposit, if any, shall be transferred to the Tribunal for disbursement Sd/-
(H.T. NARENDRA PRASAD) JUDGE DM List No.: 2 Sl No.: 37