Smt. R. Nalina vs The Branch Manager
2021 Latest Caselaw 1832 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

             M.F.A. NO.5579 OF 2017 (MV-D)
                          C/W
             M.F.A. NO.6137 OF 2018 (MV-D)

M.F.A. NO.5579 OF 2017

BETWEEN:

1.     SMT. R. NALINA
       W/O LATE K. NARAYAN
       AGED ABOUT 65 YEARS.

2.     N. PRAMOD
       S/O LATE K. NARAYAN
       AGED ABOUT 34 YEARS.

3.     N. TEJASHWINI
       D/O LATE K. NARAYAN
       AGED ABOUT 30 YEARS.

       ALL ARE RESIDING AT NO.133/B
       8TH CROSS ROAD
       4TH MAIN ROAD, MYSORE ROAD
       BAPUJINAGAR, BANGALORE-560 026.
                                          .... APPELLANTS

(BY SMT. K.G. NALINA KUMARI, ADV., FOR
    SRI. C.R. RAGHAVENDRA REDDY, ADV.,)
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AND:

THE BRANCH MANAGER
M/S. TAMIL NADU STATE TRANSPORT CORPORATION
COIMBATORE DIVISION-II
PALANI BRANCH, (TIRUPPUR REGION)
ERODE, TAMIL NADU.
                                         ... RESPONDENT
(BY MR. H.K. SATHEESH, ADV., FOR
    MR. BOPANNA B, ADV.,)
                            ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.3.2017 PASSED
IN MVC NO.73/2015 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSES JUDGE & XXXIII ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING     ENHANCEMENT       OF
COMPENSATION.

M.F.A. NO.6137 OF 2018

BETWEEN:

THE MANAGING DIRECTOR
TAMILNADU STATE TRANSPORT
CORPORATION, (COIMBATORE) LTD
NO.37, METTUPALYAM ROAD
COIMBATORE, PALANI BRANCH
(TIRUPPUR REGION), ERODE
TAMIL NADU-638001.
                                             .... APPELLANT
(BY MR. H.K. SATHEESHA, ADV., FOR
    MR. BOPANNA B, ADV.,)

AND:

1.     SMT. R. NALINA
       W/O LATE K. NARAYAN
       AGED ABOUT 66 YEARS.

2.     N. PRAMOD
       S/O LATE K. NARAYAN
       AGED ABOUT 36 YEARS.
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3.   N. TEJESHWINI
     D/O LATE K. NARAYAN
     AGED ABOUT 31 YEARS.

     ALL ARE R/AT. NO.133/B
     8TH CROSS ROAD, 4TH MAIN ROAD
     MYSORE ROAD, BAPUJINAGAR
     BANGALORE-560026.
                                            ... RESPONDENTS
(BY SMT. K.G. NALINA KUMARI, ADV., FOR
     MR. C.R. RAGHAVENDRA REDDY, ADV., FOR R1 TO R3)
                            ---

      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 22.3.2017 PASSED
IN MVC NO.73/2015 ON THE FILE OF THE VIII ADDITIONAL SCJ &
XXXIII  ACMM, MEMBER,      MACT,   BENGALURU, (SCCH-5),
AWARDING COMPENSATION OF RS.25,61,000/- WITH INTEREST
@ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

     THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                        JUDGMENT

MFA No.5579/2017 has been filed by the claimant

whereas MFA No.6137/2018 has been filed by the Tamilnadu

State Transport Corporation (hereinafter referred to as 'the

Corporation' for short) under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act' for

short) against the judgment dated 22.03.2017 passed by the

Motor Accident Claims Tribunal.

Since both the appeals arise out of the same accident

and the same judgment, they were heard together and are

being decided by this common judgment.

2. Facts giving rise to the filing of the appeals briefly

stated are that on 09.01.2014 at about 8 p.m. deceased

N.Chethan was riding a motor cycle bearing registration

No.KA-41 H-4628 near Lalbag road, Purnima junction. At

that time, a bus bearing registration No.TN-33 N-2533 which

was being driven by its driver in a rash and negligent

manner, dashed against the motor cycle of the deceased. As

a result of the impact of the accident, the deceased fell down

and the wheel of the bus ran over the deceased.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 30 years at the time of

accident and was employed as an Engineer and was earning

a sum of Rs.20,500/- p.m. It was further pleaded that

accident took place solely on account of rash and negligent

driving of the driver of the bus. The claimants claimed

compensation to the extent of Rs.63,00,000/- along with

interest. The respondent filed objections in which averments

made in the claim petition were denied. It was also denied

that there is no negligence on the part of the driver of the

bus. It was further pleaded that the amount of

compensation sought by the claimants is excessive and

exorbitant.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.2 examined himself as PW-1,

one Ramamurthy as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P41. The Corporation neither adduced

any oral nor any documentary evidence. 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 bus by its driver. It was further held, that

the claimants are entitled to compensation to the tune of

Rs.25,61,000/- along with interest at the rate of 9% p.a.

from the date of petition till the date of realisation. In the

aforesaid factual background, these appeals have been filed.

6. Learned counsel for the claimants submitted that the

deceased was earning a salary of Rs.20,500/-. However, the

Tribunal has incorrectly assessed the income of Rs.12,000/-

p.m. despite the fact that the claimants had produced Ex.P10

and Ex.P11 - salary certificates. Therefore, the income of the

deceased ought to have been assessed at Rs.20,500/- and

suitable compensation should be awarded by this Court.

7. On the other hand, learned counsel for the

Insurance Company submitted that the deceased was

responsible for the accident and the deceased was driving the

vehicle in a rash and negligent manner and dashed against a

car and fell down and came in contact with the bus, as a

result of which accident took place. Thus, it was argued that

the deceased himself was solely responsible for causing of

the accident. It is further submitted that no evidence was

adduced by the claimants to prove the income of the

deceased and documents Ex.P10 and P11 have not been

proved by the claimants as no evidence has been examined

to prove the aforesaid documents. It is also submitted that

50% of the amount could not have been added on account of

future prospects and the amount awarded under the head of

conventional heads is on the higher side.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is well settled in law that in a motor accident case, the

claimant is required to prove the accident on the basis of

preponderance of probabilities (See: 'MANGALA RAM VS.

ORIENTAL INSURANCE CO.', (2018) 5 SCC 656). The

claimant in the instant case, has examined one eye witness

PW-2 who has clearly stated that the accident took place on

account of rash and negligent driving of the bus of the

Corporation. It is pertinent to note that the driver of the bus

of the Corporation was the best witness to prove the manner

of accident. However, the Corporation has not examined the

aforesaid witness. Therefore, there is no evidence of the

Corporation to prove the manner of accident. Therefore, we

affirm the finding recorded by the Tribunal that the accident

has taken place solely on account of negligence of the driver

of the bus of the Corporation.

9. Now we may advert to the quantum of

compensation. Though claimants have produced Ex.P10 and

P11 in support of their claim that the deceased used to earn

Rs.20,500/-, however no evidence were adduced to prove

the aforesaid document. Therefore, Ex.P10 and Ex.P11 have

no evidentiary value. In the absence of any evidence on

record with regard to the income and taking into account the

fact that the deceased was employed as an Engineer, the

Tribunal has rightly assessed the income of the deceased at

Rs.12,000/- p.m. Therefore, we affirm the aforesaid finding

and assess the monthly income at Rs.12,000/-. To the

aforesaid amount, in view of the law laid down by the

Constitution Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 40% of the amount has

to be added on account of future prospects. Thus, the

income comes to Rs.16,800/-. Out of the aforesaid amount,

1/2 has to be deducted towards personal expenses of the

deceased as he was a bachelor and therefore, the monthly

dependency comes to Rs.8,400/-. Taking into account the

age of the deceased which was 30 years at the time of

accident, the multiplier of '17' has to be adopted. Therefore,

the claimants are held entitled to Rs.17,13,600/- (Rs.8400 x

12 x 17) on account of loss of dependency.

10. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

AIR 2020 SC 3076 each of the claimants are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

of love and affection. Thus, the claimants are held entitled to

Rs.1,20,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.18,63,600/-. The aforesaid amount

shall carry interest at the rate of 6% from the date of filing of

the petition till the realization of the amount of

compensation.

Amount in deposit, if any, be transmitted to the Claims

Tribunal.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Accordingly, the appeal filed by the claimants is partly

allowed and the appeal filed by the Corporation is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

RV