Bangalore Metropolitan vs Smt. M. Mahaja Been
2021 Latest Caselaw 2032 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MAY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.5794 OF 2018 (MV-D)
                              C/W
              M.F.A. NO.7745 OF 2018 (MV-D)


M.F.A. NO.5794 OF 2018
BETWEEN:

BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K H ROAD
SHANTHINAGAR
BANGALORE 560027
BY ITS MANAGING DIRECTOR.
                                              ... APPELLANT
(BY SRI. D. VIJAYA KUMAR, ADV.,)

AND:

1.     SMT. M. MAHAJA BEEN
       W/O ABDULLA KHAN
       AGED ABOUT 46 YEARS.

2.     SRI. ABDULLA KHAN
       S/O LATE NABHI KHAN
       AGED ABOUT 51 YEARS.
                               2



3.   M. FIROZ KHAN
     S/O ABDULLA KHAN
     AGED ABOUT 30 YEARS.

     ALL ARE R/O # 17/233/3
     NEAR URDU SCHOOL
     KADIRI (RURAL)
     KUTA GULLA
     ANANTHAPUR DIST
     ANDRA PRADESH STATE.
                                          ... RESPONDENTS
(BY SRI. K.B. CHANDRASHEKAR SWAMY, ADV., FOR R1 TO R3)
                           ---

THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.04.2018 PASSED IN MVC NO.6034/2017 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BENGALURU (SCCH-1), AWARDING COMPENSATION OF RS.23,43,600/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. NO.7745 OF 2018 BETWEEN:

1. SMT. M. MAHAJA BEEN W/O ABDULLA KHAN AGED ABOUT 46 YEARS.

2. SRI. M. ABDULLA KHAN S/O LATE NABHI KHAN AGED ABOUT 51 YEARS.

3. SRI. M. FIROZ KHAN S/O ABDULLA KHAN AGED ABOUT 30 YEARS.

ALL ARE RESIDING AT NO.17/233/3 NEAR URDU SCHOOL KADRI (RURAL) KUTA GULLA ANANTHAPUR DISTRICT ANDRA PRADESH.

... APPELLANTS (BY SRI. CHANDRASHEKAR SWAMY K.B. ADV.,)

AND:

THE MANAGING DIRECTOR B M T C, K H ROAD BANGALORE-560 091.

... RESPONDENT (BY SRI. D. VIJAYAKUMAR, ADV.)

---

THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.04.2018 PASSED IN MVC NO.6034/2017 ON THE FILE OF THE PRINCIPAL MACT, MEMBER, BENGALURU (SCCH-1), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

COMMON JUDGMENT

M.F.A.No.5794/2018 has been filed by the

Bangalore Metropolitan Transport Corporation

(hereinafter referred to as 'the Corporation' for short),

whereas, M.F.A.No.7745/2018 has been filed by the

claimants against judgment dated 04.04.2018 passed by

the Motor Accident Claims Tribunal (hereinafter referred

to as 'the claims tribunal' for short). Since, both the

appeals arise from the same accident and same

judgment, they were heard analogously and are being

decided by this common judgment.

2. Facts giving rise to these filing of the appeals

briefly stated are that on 03.10.2017 at about 11.00

a.m., deceased viz., Afroz Khan M. was walking by the

side of Yeshwanthapura BMTC Terminal Board to reach

Yeshwanthapura Bus Stand. At that time, bus bearing

registration No.KA01-F-8940, which was being driven in

a rash and negligent manner dashed the deceased. As a

result of the accident, the deceased was crushed

between the bus and the side wall of the road and

sustained multiple fractures all over the body.

Ultimately, deceased succumbed to the same.

3. The claimants thereupon filed a petition

under Section 166 of the Act inter alia on the ground

that the accident has taken placed on the driving of the

driver of the offending bus. It was further pleaded that

deceased at the time of accident was aged about 25

years and was working at Quest and was posted in the

office of Airtel Ltd. Bangalore and was drawing a salary

of Rs.15,000/- per month. It was further pleaded that

on account of untimely death of the deceased, the

claimants have lost the earning member of the family.

The claimants claimed compensation to the tune of

Rs.75,00,000/- along with interest.

4. The respondent in the statement of objection

inter alia stated that driver of the bus was proceeding

from Yeshwanthapura TTMC to the depot, deceased all

of a sudden rushed from the left side of the bus without

observing the movements of the bus and fell down

between the flyover wall and left side of the bus and

sustained grievous injuries. It was denied that driver of

the bus was responsible for the accident. It was pleaded

that the accident took place due to negligence and

carelessness of the deceased itself and the claimants in

collision with the police have implicated the Corporation

with a view to get compensation. The Corporation also

denied the age, occupation and income and mode of the

accident and it was pleaded that the compensation

claimed by the claimants is excessive, exorbitant and is

imaginary.

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

their case examined two witnesses viz., Mahajabeen and

Naresh D.M. as PW1 and PW2 and got exhibited

documents namely Ex.P1 to Ex.P28. The respondent

examined P.Shivaram viz. the driver as RW1 and did

not adduce 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 driver of the bus. It was further

held that the claimants are entitled to compensation to

the extent of RS.23,43,600/- along with interest at the

rate of 6% per annum. In the aforesaid factual

background, these appeals have been filed.

6. Learned counsel for the Corporation

submitted that from the salary certificates Ex.P11 and

Ex.P12, it is evident that deceased was employed in

Quest Corporation Ltd., whereas, in the claim petition it

was pleaded that he was employed in Airtel Office. It is

also submitted that no documents was produced by the

claimants to show that deceased had received the salary

mentioned in Ex.P11 and Ex.P12 and therefore, in the

absence of any proof with regard to income of the

deceased, the notional income of the deceased ought to

have been taken into consideration. It is further

submitted that driver of the offending bus was taking a

left turn to the depot on a narrow road and the

deceased should have been cautious and should not

have come near the rear body of the vehicle and the

wall. It is further submitted that the Claims Tribunal

ought to have been appreciated that the instant case is

a case of contributory negligence in which the deceased

had contributed to the extent of more than 50% and

accordingly, the liability to pay the compensation ought

to have been apportioned.

7. On the other hand, learned counsel for the

claimants has submitted that from perusal of Ex.P2 i.e.,

the spot sketch, it is evident that deceased was walking

on the footpath however, the driver of the offending

vehicle did not notice the movement of the deceased

and came to the main road and drove the bus in a rash

and negligent manner, as a result of which the deceased

was crushed between the hind portion of the bus and

the wall. It is also submitted employer viz., PW2 viz.,

Naresh D.M. has been examined to prove the salary of

the deceased and in the cross-examination, the

genuineness of Ex.P11 and Ex.P12 has not bee disputed

on behalf of the Corporation. It is also contended that

the Claims Tribunal erred in assessing the monthly

income of the deceased at Rs.14,000/- and the same

ought to have been assessed at Rs.15,000/-. It is also

submitted that on account of loss of love and affection

only a sum of Rs.40,000/- has been awarded, which

deserves to be enhanced suitably.

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 when an accident

happens through the combined negligence of two persons, he

alone is liable to the other who had the last opportunity of

avoiding the accident by reasonable care, and who then knew

or ought to have known of the danger caused by the other's

negligence. [See: SALAMOND ON THE LAW OF TORTS,

TWELFTH EDITION 1957 PAGE 439-441]. The general

rule is that the vehicle should be driven at a speed which

enables the driver to stop within the limits of his vision and

failure to do this will almost always result in the driver being

held, in whole or in part, responsible for the collision. [See:

CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION,

1954 PAGES 368-370]. In the instant case, driver of the

vehicle viz., T.Shivaram has been examined who in the

cross-examination has stated that sketch Ex.P2 has been

correctly drawn. From perusal of Ex.p2, it is evident that

deceased was proceeding on extreme left side of the road

and bus which came from the bus stand entered the main

road and at that time, it dashed against the deceased.

Therefore, the driver of the bus could see that the deceased

was proceeding on extreme left side of the road and he

should have been cautious about movement of the deceased

and should have taken a turn in a cautious manner. It is

pertinent to mention here that the police after investigation

has also filed a charge sheet against the driver of the bus.

Thus, on the basis of the evidence on record, it can safely be

inferred that accident has taken place on account of rash and

negligent driving of the driver of the bus. The contention

urged on behalf of the Corporation that the accident took

place on account of negligence of the deceased, therefore,

does not deserve acceptance and the finding recorded by the

Claims Tribunal that the accident took place on account of

rash and negligent driving of the driver of the bus is

affirmed.

9. Now we may advert to the quantum of

compensation. The deceased at the time of accident was

aged about 24 years and from perusal of Ex.P12 as well as

Ex.P13, it is evident that his salary after deduction was

Rs.14,000/- per month. However, an amount of Rs.961x71

Rs.1,232 was being deducted on account of Provident Fund

and Employees State Insurance Corporation. The contention

of learned counsel for the claimant that there is a

discrepancy in the pleading and the entries made in the

certificates viz., Ex.P11 and Ex.12 with regard to the

company where the deceased was employed sans substance

as PW2 Naresh D.M. in his evidence has stated that deceased

was employed with Quest Ltd., and at the relevant time was

sent on deputation to Airtel Ltd. Nothing to the contrary

could be elicited in the cross-examination. Therefore, the

contention that the notional income of the deceased ought to

have been taken into account does not deserve acceptance

and the monthly income of the deceased at Rs.15,232/-. The

deceased was a bachelor, therefore, 1/2 of the amount has

to be deducted on account of personal expenses. Thus, the

monthly dependency is assessed at Rs.7,616/-.

10. To the aforesaid amount, 40% of the amount

has to added on account of future prospects, 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. Thus, the monthly income comes to

Rs.10,662/-. Taking into account the age of the

deceased which was 24 years at the time of accident,

the multiplier of '18' has to be adopted. Therefore, the

claimants are held entitled to (Rs.10,662x12x18) i.e.,

Rs.23,02,992/- on account of loss of dependency.

11. 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 claimant's

are entitled to a sum of Rs.40,000/- on account of loss

of consortium and loss 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. The amount of

compensation awarded under the head 'medical

expenses' is maintained. Thus, in all, the claimants are

held entitled to a total compensation of Rs.24,52,992/-.

Needless to state that the enhanced amount of

compensation shall carry interest at the rate of 6% per

annum from the date of filing of the petition till the

payment is made. The amount in deposit shall be

transmitted to the claims tribunal. To the aforesaid

extent, the judgment passed by the Claims Tribunal is

modified.

In the result, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE ss