Karnataka High Court
The Managing Director vs Mrs Amudha on 15 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.3857/2017 (MV-D)
BETWEEN:
THE MANAGING DIRECTOR,
BANGALORE METROPOLITAN TRANSPORT,
CORPORATION (B.M.T.C), K.H.ROAD,
BANGALORE-560027.
REPRESENTED BY IT'S
CHIEF LAW OFFICER.
... APPELLANT
(BY SRI. F.S.DABALI, ADVOCATE)
AND:
1. MRS. AMUDHA,
W/O LATE JOSEPH,
AGED ABOUT 36 YEARS,
2. SUJJAN JOSEPH,
D/O LATE JOSEPH,
AGED ABOUT 6 YEARS,
3. ROJAMMA @ ROSAMMA,
W/O LATE LAZAR,
AGED ABOUT 62 YEARS,
4. SUSMITHA JOSEPH,
D/O LATE JOSEPH,
AGED ABOUT 4 YEARS,
2
RESPONDENT NO.2 AND 4 ARE
BEING MINORS, REPRESENTED BY
THEIR MONTHER AMUDHA,
THE RESPONDENT NO.1.
ALL ARE RESIDING AT NO.397,
12TH CROSS, M.V. GARDEN,
HALASOOR, BHARATHI NAGAR,
BANGALORE-560008.
... RESPONDENTS
(BY SRI.RAGHAVENDRA E.P. ADVOCATE FOR R1 AND R3,
R2 & R4 ARE MINORS REPRESENTED BY R1-
NATURAL GUARDIAN, MOTHER)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:27.02.2017 PASSED IN MVC NO.5140/2015 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE
AND XX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
AND MACT BENGALURU (SCCH-24), AWARDING
COMPENSATION OF RS.16,65,000/- WITH INTEREST AT
THE RATE OF 8% P.A. FROM THE DATE OF PETITION, TILL
DEPOSIT AND ETC.,
THIS M.F.A. COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed under Section-173(1), of the
Motor Vehicles Act, 1988 (hereinafter referred to as
'MV Act' for brevity) by the appellant - insurance
company, challenging the judgment and award dated
27.02.2017, passed in MVC No.5140/2015, on the file
of XXII Additional Small Causes Judge and XX
Additional Chief Metropolitan Magistrate & MACT, at
Bangalore (hereinafter referred to as 'the Tribunal' for
brevity), questioning the liability and quantum.
Brief facts:
2. On 07.03.2015, at about 4.30 p.m., the
deceased Joseph along with other workers were
painting the road center median at Mahadevapura
Ring Road, B. Narayanapura, Bengaluru. At that time,
a BMTC bus bearing registration No.KA-01-FA-1173
driven by its driver in a rash and negligent manner
came from K.R.Puram Railway Station towards
Marathahalli, lost control on the vehicle and dashed
against the barricade, consequently the barricade fell
on the deceased Joseph. Due to the impact deceased
Joseph who was painting on the road sustained
grievous injuries. Immediately, he was shifted to
Chinmaya Hospital. Inspite of necessary treatment,
the doctors unable to save him and he succumbed to
the injuries. Thereafter, the body was shifted to
Bowring Hospital and postmortem conducted.
3. Hence, a claim petition was filed by the
claimants under Section-166 of the M.V. Act, claiming
compensation for the injuries sustained in the
accident. The Tribunal on appreciating the materials
on record, allowed the petition in part, and awarded a
compensation of Rs.16,65,000/- along with interest at
8% per annum, from the date of petition till the date
of deposit. The Tribunal held the appellant - insurance
company, liable to pay the compensation.
4. The compensation awarded by the Tribunal
is as follows:
Loss of Dependency : Rs. 16,20,000/-
Loss Of Consortium : Rs. 20,000/-
Loss of love and affection : Rs. 30,000/-
Transportation charges : Rs. 2,000/-
Funeral And Obsequies : Rs. 8,000/-
Ceremony Expenses
TOTAL : Rs. 16,80,000/-
5. The learned counsel for the appellant
submitted that the quantum of negligence attributed
by the Tribunal on the part of the BMTC Driver is high
for the reason that, there was no rash and negligence
on the part of the driver of the BMTC bus. That the
deceased was crossing the road without observing
traffic rules. Therefore, the deceased himself was at
fault but the Tribunal wrongly held the bus driver was
negligent. Further, submitted that the amount of
compensation awarded by the Tribunal is on higher
side. For the reason, under the head 'loss of future
prospects' the Tribunal has taken 50% of the income,
but it ought to have be 25%, as per the judgment of
the Hon'ble Apex Court in the case of NATIONAL
INSURANCE CO. LTD. VS. PRANAY SETHI,
reported in (2017) 16 SCC 680. Therefore, the
Tribunal has awarded excess compensation and the
same is to be reduced. Further, submitted that the
rate of interest ought to have been granted at 6% per
annum, but awarded on higher rate at 8% per annum.
Therefore, the same needs to be reduced. Hence,
prays to allow the appeal by modifying the judgment
and award of the Tribunal.
6. On the other hand, the learned counsel for
the respondent-claimant submitted that the Tribunal
correctly held the negligent on the part of BMTC bus
as the deceased was working as painter on the road,
painting the median at the instance of BDA and at the
time, the driver of the BMTC driver was driving the
bus in high speed and rash and negligent manner and
dashed against the workers who were painting median
and in this way the deceased sustained fracture
injuries and succumbed to the injuries, which is clearly
discussed by the Tribunal. Therefore, submitted, has
rightly placed negligence on the part of the BMTC bus.
7. Further, the learned counsel for the
respondents - claimants submitted that under the
head of 'loss of consortium' each family members are
entitled for a sum of Rs.40,000/- each. But the
Tribunal has awarded a sum of Rs.20,000/-.
Therefore, the same is needed to be enhanced.
However, the claimants have not filed an appeal
seeking enhancement.
8. Further, the learned counsel for the
respondents - claimants submitted that the Tribunal
has awarded compensation on a lesser side.
Therefore, whatever amount was awarded by the
Tribunal was not challenged by the Claimants.
Therefore, prays for confirming the judgment and
award passed by the Tribunal as the quantum granted
is just and proper. Further, submitted that the interest
at the rate of 8% per annum is also correct. There is
no need to make any interference in this regard.
Therefore, prays to dismiss the appeal.
9. Considering the rival submissions of both
the parties, the Tribunal had held that the notional
monthly income at Rs.8,000/- per month is on lesser
side. The accident has occurred in the year 2015.
Therefore, considering the year of the accident, the
notional income ought to have been taken at
Rs.9,000/- per month as per the chart of Karnataka
State Legal Services Authorities. The appropriate
multiplier applicable as per the judgment of the
Hon'ble Supreme Court, in the case of Smt.Sarla
Verma & Others. Vs. Delhi Transport Corpn And
Another reported in AIR 2009 SC 3104, is '15',
since the appellant was aged 40 years at the time of
accident. Further, the accident has occurred in the
year 2015. Therefore, as per the Notional Income
Chart preferred by the Karnataka State Legal Service
Authority, the notional income of Rs.9,000/- is to be
taken into consideration. Further, as per principle of
law laid down by the Hon'ble Apex Court in the case of
National Insurance Co. Ltd. Vs. Pranay Sethi
reported in (2017) 16 SCC 680, 25% of his monthly
income is to be added towards 'Loss Of Future
Prospects In Life', i.e., Rs.2,250/- (Rs.9,000/- x
25%). Therefore, the monthly income of the deceased
is liable to be taken at Rs.11,250/- (Rs.9,000/- +
Rs.2,250/-). Further, 1/4th of deceased income is to
be deducted towards Personal Expenses and the
contribution to the family is taken as Rs.8,437/- per
month. Therefore, the compensation under the head
'Loss Of Dependency' is recalculated and quantified as
follows:
Rs.9000 + 2,250 x ¾ x 15 x 12 = Rs.15,18,750/-
Therefore, the claimants ought to have been
entitled for a sum of Rs.15,18,750/- instead of
Rs.16,20,000/- towards 'Loss of Dependency', as
awarded by the Tribunal.
10. Further, the Tribunal has awarded
compensation of Rs.20,000/- under the head 'loss of
consortium' but as per the principles of law laid down
by the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. Vs. Pranay Sethi reported in
(2017) 16 SCC 680, at para Nos.59.3 and 59.4,
each family members are entitled for a compensation
of Rs.40,000/- each under the head 'Loss Of
Consortium' that works out to Rs.1,60,000/-
(40,000 x 4) for all four claimants, who are wife, two
minor children and old mother. But for this also the
claimants have not preferred appeal.
11. Also considering the amount of
compensation awarded under various heads, are also
found to be on lesser side. However, there is no
appeal by the claimants. Therefore, considering these
aspects, the amount awarded by the Tribunal is found
to be just and proper, which needs no interference by
this Court. Therefore, the quantum of compensation
awarded by the Tribunal is confirmed.
12. Regarding the percentage of interest
awarded by the Tribunal at 8% per annum, the same
is on higher side and has to be 6% per annum.
Therefore, only on this aspect of the rate of
interest, the judgment and award is modified
awarding interest at 6% per annum on the
quantum of compensation of Rs.16,80,000/-
awarded by the Tribunal.
13. In the present case, the learned counsel
appearing for the BMTC submitted that the deceased
was crossing the road negligently and therefore the
accident was caused. Reliance is placed on the
evidence of RW-1 who is the driver of the BMTC and
the appellant has not produced any other evidence
other than the driver of the BMTC Bus that the
deceased was negligent. But upon perusing the
complaint, FIR, spot sketch, mahazar, charge-sheet,
as per Exhibits-P1 to P4, P7 and P8 respectively, it is
proved that the deceased was hired in the work of
painting of road by the BDA. Therefore, when the
deceased was working as painter on the road, when
the accident has occurred. It is borne out from
Exhibit-P2, which is lodged after 1½ hours from the
time of the accident. Therefore, there is no delay in
lodging the complaint after the accident.
14. Further, Exhibit-P3 is the spot sketch which
proves that the bus was coming from north to south
and came to the wrong side of the road, hit the
deceased. This evidence also shows that the driver of
the BMTC was rash and negligent while driving the
bus. Further, upon investigation the Investigating
Officer who conducted investigation and filed the
charge-sheet which shows that the driver was
negligent in driving the bus and caused the accident.
Therefore, this proof shows that the driver of the
BMTC bus who was examined as RW-1 was rash and
negligent, who is a tort-feaser. But his evidence
cannot be believed. Except the evidence of RW-1, the
appellant does not have any other evidence to show
that the deceased was negligent and while crossing
the road, he met with the accident.
15. On the other hand, it seen from the records
that the deceased was a painter under the
employment of BDA for painting the median of the
road. At that time, BMTC bus driver had caused the
accident. Therefore, there is no merit found in the
contention of the appellant-BMTC.
16. Accordingly, I proceed to pass the
following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award dated
27.02.2017, passed in MVC No.5140/2015,
on the file of XXII Additional Small Causes
Judge and XX Additional Chief Metropolitan
Magistrate & MACT, at Bangalore, is
modified, only to the extent of rate of
interest.
iii. The claimants are entitled for interest at
6% per annum on the compensation
awarded by the Tribunal at Rs.16,80,000/-,
instead of 8% per annum, from the date of
petition till the date of realization.
iv. The amount in deposit shall be transferred
to the Tribunal forthwith.
v. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court
forthwith without any delay.
vi. Draw award accordingly.
Sd/-
JUDGE
JJ
