Karnataka High Court
Smt Venkatalakshmi vs The Managing Director on 22 June, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.8123 OF 2016 (MV-I)
C/W
M.F.A.NO.7862 OF 2016 (MV-D)
IN M.F.A.NO.8123/2016:
BETWEEN:
1. SMT VENKATALAKSHMI,
W/O LATE NANJUNDA,
AGED ABOUT 45 YEARS,
2. SMT ROOPA,
D/O LATE NANJUNDA,
AGED ABOUT 23 YEARS,
BOTH ARE R/AT GURVABOVIPALYA,
BAICHAKUPPA DHAKLE,
TAVAREKERE HOBLI,
BANGALORE SOUTH TALUK-562130. ... APPELLANTS
(BY SRI SHIVAKUMAR P, ADV.)
AND:
1. THE MANAGING DIRECTOR,
K.H.ROAD, SHANTHI NAGAR,
BENGALURU-560027.
2. UNITED INDIA INSURANCE CO. LTD.,
MOTOR DEALER DIVISION,
KRISHI BHAVAN,6TH FLOOR, HUDSON CIRCLE,
BENGALURU - 560 001,
REP. BY ITS MANAGER.
3. SMT. LAKSHMAMMA,
W/O VENKATAPPA,NO.15, NEW NO.06,
BAICHANAGUPPE, TAVAREKERE HOBLI,
2
BENGALURU - 560130.
4. SRI M.H.CHANDRAIAH,
S/O HANUMAIAH,
AGED ABOUT 46 YEARS,
DRIVER, KSRTC, NO.09, MAGADI DEPT,
RAMANAGARA DIVISION,
MAGADI. ... RESPONDENTS
(AMENDMENT CARRIED OUT AS PER THE ORDER OF
HON'BLE COURT DATED: 06.04.2022)
(BY SMT. SHWETHA ANAND, ADV. FOR R1,
SRI RAVISH BENNI, ADV. FOR R2,
V/O/DT: 11.04.2022, NOTICE TO R3 AND R4 IS DISPENSED)
----
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.7.2016 PASSED IN MVC
NO.628/2012 ON THE FILE OF THE 21ST ADDITIONAL SMALL
CAUSES JUDGE, 19TH ACMM, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.7862/2016:
BETWEEN:
THE MANAGING DIRECTOR,
KSRTC, SHANTHINAGAR,
BENGALURU-560 027,
NOW REPRESENTED BY:
CHIEF LAW OFFICER,
KSRTC CENTRAL OFFICE,
K.H. ROAD,
BENGALURU-560 027. ...APPELLANT
(BY SMT. SHWETHA ANAND, ADV.)
AND:
1. SMT. VENKATALAKSHMI,
W/O. LATE NANJUNDA,
AGED ABOUT 45 YEARS.
3
2. SMT. ROOPA,
D/O LATE NANJUNDA,
AGED ABOUT 23 YEARS,
RESPONDENT NOS.1 AND 2 ARE
RESID ING AT GURVABOVIPALYA,
BAICHAKUPPA DHAKLE,
TAVAREKERE HOBLI & POST,
BENGALURU SOUTH TALUK-562 130.
3. UNITED INDIA INSURANCE CO. LTD.
MOTOR DEALER DIVISION, MOTOR DEALER OFFICE,
KRISHI BHAVAN,6TH FLOOR, HUDSON CIRCLE,
BENGALURU-560 001.
4. SMT. LAKSHMAMMA,
W/O. VENKATAPPA,AGE-UNKNOWN,NO.15,
NEW NO.06,BAICHANAGUPPE,
TAVAREKERE HOBLI,BENGALURU-560 130.
5. SRI. M.H. CHANDRAIAH,
S/O. HANUMAIAH, AGED ABOUT 46 YEARS,
DRIVER, KSRTC, NO.09, MAGADI DEPOT,
RAMANAGARA DIVISION,
MAGADI-562 120. ...RESPONDENTS
(BY SRI P SHIVAKUMAR, ADV. FOR R1 AND R2,
SRI RAVISH BENNI, ADV. FOR R3, R4 - SERVED
V/O/DT: 06.07.2017, NOTICE TO R5 IS DISPENSED)
----
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.7.2016 PASSED IN MVC
NO.628/2012 ON THE FILE OF THE 21ST ADDITIONAL SMALL
CAUSES JUDGE, 19TH ACMM, MEMBER, MACT, BENGALURU,
AWARDING A COMPENSATION OF RS.13,81,000/- WITH
INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE
DEPOSIT OF THE AMOUNT IN THE TRIBUNAL.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
AND THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
In these two appeals, MFA 8123/2016 is filed by
the claimants seeking enhancement of compensation
while MFA 7862/2016 is filed by the KSRTC
challenging the judgment and award dated
19.07.2016 passed by the XXI Additional Small
Causes Judge and MACT, Bengaluru in
MVC.No.628/2012.
2. For the sake of convenience, parties shall
be referred as per their status before the Tribunal.
3. Heard Sri. Shivakumar P, the learned
advocate for the claimants, Smt Shwetha Anand,
learned advocate for the KSRTC and Sri Ravish Benni,
learned counsel for United India Insurance Co. Ltd.
4. Both the appeals are arising out of the
impugned common judgment and award. In terms of
the impugned judgment, the tribunal has awarded
compensation of Rs.13,81,000.00 in favour of the
claimants. The claim petition was filed under Section
166 of the Act by the dependents i.e., the mother and
unmarried sister of deceased Suresh against KSRTC
and Lakshmamma - the owner of the vehicle involved
in the accident and also a driver of the KSRTC bus.
The tribunal has awarded compensation against the
KSRTC and has exonerated the owner of the bike as
well as the insurer of the bike.
5. Challenging the liability KSRTC has filed
MFA 7862/2016 while claiming enhancement of
compensation, claimants have filed 8123/2016.
6. The other brief facts necessary to be
adjudicated in these cases are as under:
- It is alleged that on 31.12.2011 at about 6.50
pm, deceased Suresh was travelling on the bike
bearing Regn. No.KA-41-S-6440 as a pillion rider. It
is alleged in the petition that the accident took place
when Narasimha drove the aforesaid bike in a rash
and negligent manner and dashed against another
bike bearing Regn.No.KA-05-HM-5987. Admittedly,
another bike was ridden by Honnegowda on which
Lohith was the pillion rider. It is further alleged that
bike rider Narasimha went to the police station and
lodged a complaint against the driver of the KSRTC
bus bearing Regn.No.KA-01-F-7954. There is no
dispute over the fact that an FIR was lodged against
the driver of the KSRTC bus.
Subsequently, after investigation, the police
have filed a charge sheet against Narasimha - rider of
the bike bearing Regn No.KA-41-A-6440. By the time
the charge sheet was filed, a claim petition was
already filed before the claims tribunal alleging
negligence against the driver of the bus. After the
charge sheet, the claim petition was amended and the
allegation of negligence is levelled against Narasimha
- the rider of the bike and compensation is claimed
against the owner of the bike as well as KSRTC.
KSRTC appeared and contested the matter and
disputed the involvement of the KSRTC bus in the
accident. The insurer has also filed a written
statement contending that the driver of the KSRTC
bus is responsible for the accident and the insurer of
the vehicle i.e., 2nd respondent is not responsible for
the accident.
Based on the pleadings, the tribunal framed
issues relating to the negligence and also framed one
additional issue casting the burden on the 2nd
respondent who had taken the stand that the accident
in question was the result of rash and negligent
driving of the driver of the KSRTC bus.
In support of the case of the claimants, the
claimants have examined PW3 - the person who is
said to be an eyewitness to the accident and who is
none other than the pillion rider of another bike which
was said to be passing on the same road at the time
of the accident. The respondent - insurance company
to prove the contention that the driver of the KSRTC
bus is responsible for the accident, has let in evidence
of RWs 3, 4 - police inspectors who have investigated
the complaint and RW 5 - an employee of the
insurance company who is not eyewitnesses to the
accident.
The tribunal analysing the evidence placed on
record has concluded that the rider of the bike bearing
No.KA-41-S-6440 is not responsible for the accident
and has come to the conclusion that the driver of the
KSRTC bus is responsible for the accident and
fastened the liability on the KSRTC.
7. Learned advocate appearing for the
appellant/KSRTC would contend that the findings
of the tribunal are not based on the evidence on
record. The learned advocate would further
submit that police have filed a charge sheet
against Narasimha - the rider of the bike at the
time of the accident. After investigation charge
sheet is filed. It is urged that without there being
any materials to discredit the inference emanating
from the charge sheet, the tribunal was not
justified in exonerating the owner of the bike as
well as the insurer of the bike.
8. Learned counsel for the insured would
contend that the charge sheet placed before the
Court contradicts other materials placed before
the Court. The involvement of the bus in the
accident can be gathered and as such, the tribunal
is justified in fastening the liability on the driver of
the KSRTC bus.
9. It is also contended by the learned
counsel for the respondent that evidence led by
the insurer especially the admission of RW3 in the
cross-examination would suggest that the driver
of the KSRTC bus is responsible for the accident.
10. Learned counsel for R.3 would refer to
the admission of RW3 which reads as under:
¤ªÀÄä vÀ¤SÉAiÀÄ ¥ÀæPÁgÀ PÉJ¸ïDgïn¹ §¹ì£À ZÁ®PÀ£À
vÀ¦à¤AzÀ DVzÉ JAzÀgÉ ¸Àj.
11. Learned counsel would contend that
investigating officer himself has admitted that the
accident took place on account of the rash and
negligent driving of the KSRTC bus.
12. This Court is of the view that the above
extracted statement cannot be taken to be an
admission or it cannot be said to be conclusive proof
of negligence. The so-called admission runs contrary
to the documentary evidence placed on record i.e.
charge sheet itself. Merely because the officer in the
cross-examination makes a statement that the driver
of the KSRTC bus is responsible for the accident, that
statement cannot be accepted especially when that
statement can be shown to be wrong. The contents of
the charge sheet speaks contrary to the above
extracted statement. This Court is of the view that
the stray statement in the cross-examination cannot
be taken as admission hold that the driver of the
KSRTC bus was negligent in causing the accident.
13. It is also forthcoming from the records that
Lohith - the pillion rider of another bike which was
said to be near the place at the time of the accident is
examined before the tribunal and he has given a
categorical statement that the accident in question is
on account of rash and negligent driving of the bike
ridden by Narasimha.
14. Ex.R.4 is the Motor Vehicle Accident Report
which is prepared on the very next day. As per the
said report, no damage is shown to have been caused
to the KSRTC bus. At the same time, the report
reveals damage to the vehicle bearing Regn.No.KA-
41-S-6440. Thus, from the overall appreciation of the
materials on record, it is apparent that there is no
dispute over the fact that the vehicle bearing
Regn.No.KA-41-S-6440 was very much involved in the
accident and there is no allegation of negligence, by
anyone, against Honnegowda who was stated to be
coming on a bike from the opposite direction.
15. The materials placed on record would
reveal that the KSRTC bus was not at all involved in
the accident and the charge sheet filed before the
Court carries evidentiary value in the absence of any
other evidence to discredit the evidence emanating
from the charge sheet.
16. Learned counsel for the insurer placed
reliance on the judgment of MATAJI BEWA AND
OTHERS VS HEMANTA KUMAR JENA AND ANOTHER
reported in 1994 ACJ 1303. He would invite the
attention of this Court to para.6 wherein it has been
held that the charge sheet cannot be treated as
conclusive proof of negligence.
17. In the aforementioned judgment the court
has concluded that there is material before the Court
to demonstrate that the contents of the charge sheet
are not acceptable and there is enough material on
record to hold otherwise than what is emanating from
the charge sheet. In the instant case, there is nothing
on record to prove what is stated in the charge sheet
is incorrect. Under the circumstances, the said
judgment does not come to the rescue of the insurer.
18. For the aforesaid reasons, this Court is of
the view that the findings of the tribunal fastening the
liability on the driver of the KSRTC bus are
impermissible and contrary to the evidence on record.
19. Learned counsel appearing for the
petitioner has also filed the appeal before this Court
stating that the tribunal has not taken into
consideration the prospects of the deceased.
20. As per the findings of the tribunal, the
income of the deceased was assessed at Rs.8000/-
per month as against the claim of Rs.10,000/-. There
is nothing on record to show that the deceased was
having an income of Rs.10,000/- per month. In the
absence of proof of income, the chart prepared by
Karnataka State Legal Services Authority would
provide the guideline to determine the notional
income. As per the chart for the accident of the year
2011, Rs.6500/- would be the national income of the
deceased. Since, 40% is to be added towards future
prospects, considering the age of the deceased as 23
years, the notional monthly income would be
Rs.9100/-. Admittedly, the deceased was unmarried,
therefore, 50% of his income is to be deducted
towards personal expenses. Therefore, the loss of
dependency would be Rs.4550 (monthly income)
x12(months) x18(multiplier) =9,82,800/-. As regards
compensation under 'conventional heads', Loss of
consortium - Rs.80,000/- (Rs.40,000/- for each
claimant), loss of estate is Rs.15,000/- and
Rs.15,000/- is granted towards funeral expenses.
Thus, claimants are entitled to compensation as
under:
Sl. Heads of compensation Amount in Rs.
No.
1 Loss of dependency 9,82,800.00
(Rs.4500x18)
2 Conventional heads 1,10,000.00
TOTAL 10,92,800.00
21. However, the Tribunal has awarded
compensation of Rs.13,81,000/- by calculating the
dependency at Rs.12,96,000/- and Rs.85,000/- under
the conventional heads. However, this figure of
Rs.12,96,000/- is not based on acceptable evidence
relating to income of Rs.8,000/- per month arrived at
by the Tribunal. Hence, the compensation has to be
reduced.
22. Hence the following:
ORDER
(i) MFA 8123/2016 filed by the claimant is
dismissed while MFA 7862/2016 filed by KSRTC is
allowed in-part. The liability is fastened on the 2nd
respondent/insurer in MFA No.8123/2016 and on the
3rd respondent/insurer in MFA No.7862/2016.
(ii) The impugned judgment and award dated
19.07.2016 passed by the XXI Additional Small
Causes Judge and MACT, Bengaluru in
MVC.No.628/2012 is modified as indicated above.
(iii) The claimants are entitled to compensation of
Rs.11,07,800.00 along with interest @ 6% from the
date of petition till the date of realization.
(iv) Respondent No.3 in MFA No.8123/2016 shall
deposit the compensation amount after deducting the
amount if any already deposited.
Sd/-
JUDGE
brn
