The Managing Director vs Sri G D Nagesh Rao
2021 Latest Caselaw 890 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JANUARY, 2021

                        PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.8903 OF 2015 (MV-D)


BETWEEN:

THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION,
CENTRAL OFFICE, K.H.ROAD,
SHANTHINAGAR,
BANGALORE - 560 027.
                                          ...APPELLANT
(BY SRI. D. VIJAYA KUMAR, ADVOCATE)

AND:

1.     SRI. G.D. NAGESH RAO
       S/O SRI DURVA RAO,
       AGED ABOUT 46 YEARS,

       SINCE DEAD BY LRs
       ALREADY ON RECORD AS
       RESPONDENT NOs.2 AND 3

2.     SMT. B.S. PADMAVATHI,
       W/O LATE G.D.NAGESH RAO,
       AGED ABOUT 39 YEARS,
                           2




3.   KUM. PRAKRUTHI
     D/O LATE G.D.NAGESH RAO,
     AGED ABOUT 9 YEARS,

RESPONDENT NO.3 IS MINOR
REPRESENTED BY NATURAL
GUARDIAN HER MOTHER
RESPONDENT NO.2 - SMT. B.S.PADMAVATHI

ALL ARE R/AT NO.98,
5TH MAIN ROAD,
NEW EXTENSION,
BYATARAYANPURA,
MYSORE ROAD,
BENGALURU-560026.

4.   SRI. RAVINDRA KUNDAGOL
     S/O SRI. SHANMUKAPPA,
                                  Amended as per
     AGED ABOUT 36 YEARS
                                  Court order dated
     R/AT UPPAR ONI,              16.03.2016
     SAVANUR TALUK AND POST,
     HAVERI DISTRICT-581118.
                                          ...RESPONDENTS

(BY SRI. MAHESH KIRAN SHETTY, ADVOCATE FOR
RESPONDENT NO.2;
RESPONDENT NO.3 IS MINOR;
NOTICE SERVED ON PROPOSED RESPONDENT NO.4 BUT
UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 25.08.2015, PASSED IN
MVC NO.346/2014, ON THE FILE OF THE COURT OF MACT, II
ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM,
BENGALURU AWARDING THE COMPENSATION OF RS.8,61,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.

    THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
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                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act is filed by the owner and the internal insurer

of a passenger vehicle owned by it, challenging the

quantum of compensation as well as the liability to pay the

said compensation fixed on it by the Motor Vehicle

Accident Claims Tribunal, Bengaluru (SCCH-13),

(hereinafter referred to as "the Tribunal" for short) in MVC

No.346/2014 in terms of the Judgment and Award dated

25.08.2015.

2. The parties shall henceforth be referred to as

they were arrayed before the Tribunal.

3. The claim petition discloses that the claimants

are the legal representatives of the deceased who was

aged 17 years and pursuing 1st Diploma in Rajiv Gandhi

Memorial Polytechnic. It is stated that on 28.08.2013, at

about 7.15 pm., when the deceased was riding pillion

along with his friend Abhishek from Somapura towards

Nayandanahalli and when they reached Channasandra

Bridge on Nice road, a bus belonging to the owner -

internal insurer bearing registration No.KA-01-FA-54 (for

short 'offending bus") dashed against the motor cycle. As a

result, both fell down and sustained grievous injuries and

were shifted to R.R.Hospital where the deceased was

declared brought dead.

4. The claimants filed a claim petition under

Section 166 of the Motor Vehicles Act, claiming

compensation of a sum of Rs.15,00,000/-.

5. The owner-insurer denied the accident as well

as the negligence attributed to its driver. It contended

that the accident was due to the negligence on the part of

the rider of the motor cycle. It also contended that the

compensation claimed by the claimants was excessive. It

contended that on the said day, two motor cycles were

proceeding in front of the bus and a car was proceeding in

front of the motor cycle. Since, the driver of the car

applied brake suddenly, the motor cyclists also applied

brake following which the bus driver also applied the

brake. However, the bus driver could not control and the

bus hit the motor cycle. It therefore, contended that there

was no negligence on the part of the driver of the bus.

6. The claimant No.1 was examined as PW1 and

marked documents at Exs.P1 to P14, while the driver of

the offending bus was examined as RW1, but no

documents were marked.

7. The Tribunal after considering the evidence on

record held that the driver of the offending bus was

negligent and was responsible for the accident and the

deceased was in no way responsible and could not have

contributed to the accident. The Tribunal assessed the

notional income of the deceased at a sum of Rs.6,000/-

per month and after deducting 50% towards his 'living

expenses' and awarding 50% towards his 'future

prospects', awarded the total compensation of a sum of

Rs.8,61,000/- and fixed the liability to pay the

compensation upon the owner and the internal insurer of

the offending bus.

8. The owner and the internal insurer of the bus

has filed this appeal and disputes its liability. On the other

hand, contends that the driver of the offending bus was

entirely not responsible for the accident. It also contended

that the compensation awarded by the Tribunal is unjust

and excessive.

9. Per contra, the counsel for the claimants

contended that the quantum of compensation awarded by

the Tribunal is less and therefore, this Court may exercise

jurisdiction under Order XLI Rule 33 of the Code of Civil

Procedure and enhance the compensation. He also

contended that in respect of a claim made by the rider of

the motor cycle in MVC No.6360/2013, the Tribunal had

awarded compensation which was enhanced by this Court

in MFA No.4641/2016, wherein this Court had held that the

driver of the offending bus was negligent. Therefore, the

learned counsel contends that the question regarding

liability would not arise and is finally decided in another

companion appeal.

10. The learned counsel for the owner - internal

insurer of the offending bus does not dispute the fact that

this Court in MFA No.4641/2016 has affirmed that the

driver of the offending bus was negligent and was

responsible for the accident. Hence, in this appeal there

cannot be any challenge regarding the liability to pay the

compensation and or the composite negligence as alleged

by the owner-insurer of the offending bus.

11. In so far as the claim for compensation is

concerned, the Tribunal had assessed the notional income

of the deceased at a sum of Rs.6,000/-, having regard to

the fact that the deceased was pursuing 1st Year Diploma.

The income determined by the Tribunal is based on the

notional income as fixed by the Karnataka State Legal

Services Authority for the purpose of Lok Adalath and

therefore, the income determined by the Tribunal cannot

be found fault with. The Tribunal held that the claimant

had a bright chance of prospering in his career and

therefore, factored 50% as the 'loss of future prospects'

and awarded the compensation.

12. The owner - insurer contends that the Tribunal

could not have accepted the notional income of the

deceased at a sum of Rs.6,000/- per month since he was

not earning. The owner-insurer contended that the

Tribunal committed an error in awarding 50% as a loss of

future prospects, in view of the judgment of the Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi reported in AIR 2017 SC 5157, which

provided for grant of 40% as the loss of future prospects.

The learned counsel for the claimants on the other hand,

contended that the Tribunal committed an error in

considering the age of the claimant No.1 for the purpose of

determining the multiplier while the Apex Court in the case

of Chikkamma and Another Vs. Parvathamma and

Another reported in AIR 2017 SC 1732, had held that

the age of the deceased has to be considered for the

purpose of determining the multiplier. He also contended

that the Tribunal did not award the compensation towards

loss of filial consortium in respect of the claimants, in view

of the judgment of the Apex Court in the case of Magma

General Insurance Co. Ltd. vs. Nanu Ram Alias

Chuhru Ram reported in 2018 (18) SCC 130 and in the

case of United India Insurance Co. Ltd. vs Satinder

Kaur @ Satwinder Kaur and others reported in 2020

SCC OnLine SC 410 and therefore, claimed that the

Judgment and Award of the Tribunal may not be disturbed.

Alternatively he contended that this Court may exercise

jurisdiction under Order XLI Rule 33 of the Code of Civil

Procedure, so as to grant just compensation which is the

requirement of Section 166 of the Motor Vehicles Act,

1988. This claim of the claimants cannot be accepted

since they have not filed any appeal and the Apex Court in

the case of Ranjana Prakash vs. Divisional Manager

reported in 2011 (14) SCC 639 has held that the

claimants cannot seek enhancement of compensation in an

appeal filed by the insurer for reduction but can support

the Judgment and Award.

13. As rightly contended by the insurer, the

Tribunal ought to have considered the loss of future

prospects at the rate of 40% of the notional income of a

sum of Rs.6,000/-. But it is noticed that the Tribunal had

committed an error in considering the age of the parent of

the deceased for the purpose of applying the multiplier and

since compensation towards loss of filial consortium was

not awarded, this Court feels it appropriate not to interfere

with the Judgment and Award passed by the Tribunal, as

this would meet the ends of justice and also result in just

compensation to the claimants.

Hence, the appeal stands dismissed.

The amount in deposit shall be transferred to the

Tribunal for further orders.

Sd/-

JUDGE

Sd/-

JUDGE GH