Karnataka High Court

The Managing Director vs Sri Padmanabhan C R on 9 June, 2022

Bench: H T Prasad

                            1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF JUNE 2022

                         BEFORE

    THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

               MFA No.5676 OF 2018 (MV)
                         C/W
               MFA No.5234 OF 2018 (MV)

IN MFA No.5676/2018:

BETWEEN:

The Managing Director,
B.M.T.C. Depot,
K.H.Road, Shanthinagar,
Bengaluru - 560 027.
(RC Owner of BMTC Bust
No.KA-01-FA-1304)
Now through Chief Law Officer.
                                          ... Appellant
(By Sri.Nagaraja.K., Advocate)

AND:

1. Sri.Padmanabhan.C.R.,
   S/o Late Rangaswamy,
   Aged about 49 years,

2. Smt.Mala.N @ Mala Padmanabhan,
   W/o Padmanabhan.C.R,
   Aged about 45 years,

3. Yukta.P,
   D/o Padmanabhan.C.R,
   Aged about 15 years,
                             2



Since minor represented by
Her father and natural guardian No.1 above.
All R/o No.3, T.C.B.Layout,
Kaggalipura, Uttaranahalli Hobli,
Bangalore South, Bangalore -560 082.
                                          ... Respondents
(By Sri.Prakash.M.H, Advocate for R1 to R3)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 23.03.2018 passed
in MVC No.2168/2017 on the file of the 22nd Additional
Small Causes Judge & 20th ACMM & Member, MACT,
Bengaluru       (SCCH-24),  awarding   compensation   of
Rs.8,71,250/- with interest at 8% p.a. from the date of
petition till deposit.

IN MFA No.5234/2018:

BETWEEN:

1. Sri.Padmanabhan.C.R.,
   S/o Late Rangaswamy,
   Aged about 49 years,

2. Smt.Mala.N @ Mala Padmanabhan,
   W/o Padmanabhan.C.R,
   Aged about 45 years,

3. Yukta.P,
   D/o Padmanabhan.C.R,
   Aged about 15 years,

All are R/at No.3, T.C.B.Layout,
Kaggalipura, Uttaranahalli Hobli,
Bangalore South, Bangalore -560 082.
Petitioner No.3 is minor and hence
Rep.by her father and natural guardian
1st appellant.
                                            ... Appellants
(By Sri.Prakash.M.H., Advocate)
                             3



AND:

The Managing Director,
B.M.T.C. Depot,
K.H.Road, Shanthinagar,
Bengaluru - 560 027.
                                                  ... Respondent
(By Sri.K.Nagaraja, Advocate)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 23.03.2018 passed
in MVC No.2168/2017 on the file of the XXII Additional
Small Causes Judge & 20th ACMM & Member MACT,
Bengaluru (SCCH-24) partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      These appeals, coming on for admission, this day,
this Court, delivered the following:

                    JUDGMENT

MFA No.5676/2018 is filed by the BMTC

(hereinafter referred to as 'the Corporation) whereas

MFA No.5234/2018 is filed by the claimants under

Section 173(1) of the Motor Vehicles Act, (for short,

'the Act') being aggrieved by the judgment and award

dated 23.03.2018 passed by the MACT, Bengaluru

(SCCH-24) in MVC No.2168/2017. Since the

challenge is to the same judgment, both the appeals

are clubbed together, heard and common judgment is

being passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 03.03.2017 at about 8.30

a.m., the deceased Abhishek was proceeding on a

motorcycle bearing registration No.KA-05/JW-290

from Kaggalipura towards Dayanandasagara College,

Bengaluru. At that time, a BMTC bus bearing

registration No. KA-01/FA-1304 which was being

driven in a rash and negligent manner, dashed against

the motorcycle of the deceased. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries at the hospital

on 08.03.2017 at about 12.30 p.m.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, occupation and income of the

deceased are denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by the

deceased himself. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

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 their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P30. On behalf of

respondents, one witness was examined as RW-1 and

no documents were marked. 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 and the

rider of the motorcycle at 50:50, 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.17,42,500/-

along with interest at the rate of 8% p.a. and directed

the Corporation to deposit 50% of the compensation

amount along with interest. Being aggrieved, these

appeals have been filed.

6. Sri Nagaraja K., the learned counsel for the

Corporation has raised the following contentions:

Firstly, the accident occurred due to the

negligence of the deceased himself. He was riding the

motorcycle in the middle of the road without following

the traffic rules and he was coming at a high speed

and in a rash and negligent manner and dashed

against the bus. The Tribunal has failed to appreciate

the documents and the evidence adduced by the

parties. Even the Corporation has examined RW-1,

the driver of the bus. He has categorically deposed

that he was proceeding on the left side of the road

observing all the traffic rules. The deceased was

proceeding in the motorcycle at a high speed and

dashed against the bus. The Tribunal has failed to

consider the evidence of RW1 who is an eyewitness to

the accident and erred in holding that the driver of

the bus has also contributed 50% to the accident.

Secondly, immediately after the accident the

driver of the bus has lodged a complaint against the

deceased. The police have registered FIR. Only on

the ground that charge sheet has been filed against

the driver of the bus the Tribunal has held that the

driver of the bus is also negligent in causing the

accident. This finding of the Tribunal is contrary to

the materials available on record.

Thirdly, the deceased was a student and a non-

earning member. Under these circumstances, the

Tribunal without any basis has assessed the notional

income of the deceased as Rs.15,000/- per month,

which is on the higher side.

Fourthly, considering the age of the deceased,

the overall compensation awarded by the Tribunal is

on the higher side.

Fifthly, in view of the law laid down by a Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters

disposed of on 24.8.2020), the rate of interest

awarded by the Tribunal at 8% p.a. is on the higher

side. Hence, he sought for allowing of the appeal filed

by the Corporation.

7. On the other hand, Sri Prakash M.H., learned

counsel appearing for the claimants has raised the

following contentions:

Firstly, the deceased was riding the motorcycle

after following all the traffic rules. The driver of the

bus who is coming from opposite direction at a high

speed and in a rash and negligent manner dashed

against the motorcycle. Since the accident has

occurred in a straight road the driver of the bus could

notice that the motorcycle was coming, from a

distance, but he has not made any effort to slow down

his vehicle and he has not made any efforts to take

left side to avoid the accident. Since the rider of the

motorcycle was riding the same slowly and following

the traffic rules, the Tribunal is not justified in holding

that the deceased has also contributed 50% to the

accident.

Secondly, the deceased was studying in

engineering course, he was a bright student, he has

very good academic records. Under that circumstance

the income assessed by the Tribunal at Rs.15,000/- is

on the lower side. In similar circumstances this Court

in MFA No.104894/2019 disposed of on

28.02.2020 in the case of MALLIKARJUN &

OTHERS vs. UMESH AND ANOTHER has considered

the monthly income of the deceased as Rs.20,000/-.

Thirdly, the deceased had a very good future,

but the Tribunal has failed to consider addition of

future prospects as per the law laid down by the

Hon'ble Apex Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157.

Fourthly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. Vs. NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled

for compensation of Rs.40,000/- under the head of

'loss of love and affection and consortium'.

Fifthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal filed by

the claimants.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

     9.    The       case   of    the   claimant   is   that   on

03.03.2017      at     about     8.30   a.m.,    the    deceased

Abhishek was proceeding on a motorcycle bearing

registration No.KA-05/JW-290 from Kaggalipura

towards Dayanandasagara College, Bengaluru. At that

time, a BMTC bus bearing registration No. KA-01/FA-

1304 which was being driven in a rash and negligent

manner, dashed against the motorcycle of the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries at the hospital on 08.03.2017 at about

12.30 p.m. To prove their case the claimants have

examined PW1 who is the claimant No.1. He re-

iterated the averments made in the claim petition and

claimants have produced the documents as Exs. P1 to

P30. They have also examined PW-2 one Chandra

Kumar, who is the eyewitness to the accident. He

deposed that the accident occurred due to the rash

and negligent driving of the driver of the bus. To

disprove the claim of the claimants the respondent

has examined the driver of the bus as RW-1. In his

evidence he has categorically stated that he was

driving the bus on the left side of the road after

following all traffic rules. The deceased was riding the

motorcycle at a high speed and dashed against the

bus.

10. I have perused the evidence of the parties

and the spot sketch as per Ex.P7, spot mahazar as per

Ex.P5 and IMV report as per Ex.P6. As per the spot

sketch, the road was a National Highway proceeding

from Kanakapura to Bengaluru. The motorcycle was

proceeding from Kaggalipura cross to Bengaluru and

the bus was coming from the opposite direction and

the accident occurred in the middle of the road. It was

a head on collusion. Therefore, it is clear that the

deceased has also contributed to the accident and the

driver of the bus was also coming at a high speed.

Even though it was a straight road, he could have

noticed that the rider of the motorcycle coming in the

opposite direction but he has not made any efforts to

control the bus. Therefore, both the driver of the bus

as well as the deceased have contributed to the

accident. The Tribunal has rightly held that the driver

of the bus and the rider of the motorcycle, i.e.,

deceased have contributed 50% each to the

occurrence of the accident. Therefore, there is no

error in the finding given by the Tribunal in respect of

issue No.2.

Re.quantum:

11. At the time of the accident the deceased

was aged about 19 years, he was studying 5th

semester of Engineering and also a sports man, he

had a very good academic records and he had a very

good future. The Hon'ble Apex Court in the case of

KAJAL vs. JAGDISH CHAND AND OTHERS reported

in AIR 2020 SC 776 has held that even in respect of

students who are non-earning member, who have a

very good future, atleast minimum wages payable to

the skilled workman has to be considered. Under

these circumstances, the notional income has to be

considered as per the guidelines issued by the

Karnataka State Legal Services Authority. For the

accident taken place in the year 2017, the notional

income of the deceased has to be taken at

Rs.11,000/- p.m. To the aforesaid income, 40% has

to be added on account of future prospects in view of

the law laid down by the Constitution Bench of the

Supreme Court in 'PRANAY SETHI' (supra). Thus,

the monthly income comes to Rs.15,400/-. Since the

deceased was a bachelour, 50% of the income of the

deceased towards personal expenses and remaining

amount has to be taken as his contribution to the

family, i.e., Rs.7,700/-. The deceased was aged

about 19 years at the time of the accident and

multiplier applicable to his age group is '18'. Thus,

the claimants are entitled to compensation of

Rs.16,63,200/- (Rs.7,700*12*18) on account of 'loss

of dependency'.

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'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.1 and 2, parents

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of filial

consortium' .

The compensation awarded by the Tribunal

under the head 'medical expenses' is just and

reasonable.

12. Thus, the claimants are entitled to the

following compensation:

        Compensation under                     Amount in
           different Heads                        (Rs.)
       Loss of dependency                        16,63,200
       Funeral expenses                             15,000
       Loss of estate                               15,000
       Medical expenses                             92,524
       Loss of Filial consortium                    80,000
                       Total                    18,65,724


      The     claimants         are      entitled          to   a     total

compensation          of      Rs.18,65,724/-               as       against

Rs.17,42,524/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in the case of JOYEETA BOSE (supra),

the rate of interest awarded by the Tribunal is reduced

from 8% p.a. to 6% p.a.

13. In the result, both the appeals are allowed

in part. The judgment and award passed by the

Tribunal is modified.

The Corporation is directed to deposit

50% of the compensation amount, i.e.,

Rs.9,32,862/- along with interest @*6% p.a.*

*Corrected vide court order dated:29.06.2022