Karnataka High Court

The Managing Director vs Smt Savitramma on 27 May, 2022

Bench: H T Prasad

                             1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27th DAY OF MAY 2022

                          BEFORE

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

               MFA No. 2406 OF 2018 (MV)
                          C/W
               MFA No. 3160 OF 2018 (MV)

IN M.F.A.NO.2406/2018:

BETWEEN:

The Managing Director,
BMTC, Shanthinagar,
Bangalore - 560 027.
(Owner of the bus bearing
Reg No. KA-01-F-3223)
Represented by it's Chief Law Officer.
                                           ... Appellant
(By Sri.F.S.Dabali, Advocate)

AND:

1. Smt. Savitramma,
   W/o Late Ramu,
   Aged about 55 years,

2. Chandrashekar S.R.,
   S/o Late Ramu,
   Aged about 36 years,

Both are residing at No.13,
B.M.Main Road, 2nd Block,
Opp:Mahadeshwara Saw Mill,
Sathanur, Kanakapura Taluk,
                               2



Ramanagara District,
Karnataka - 562 126.
                                             ... Respondents

(By Sri.N.R.Rangegowda, Advocate for R1 & R2)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 17.11.2017 passed
in MVC No.5553/2016 on the file of the 7th Additional
Small Causes Judge & 32nd ACMM, Member, MACT -3,
Bengaluru, awarding compensation of Rs.10,38,000/- with
interest at 8% p.a. from the date of petition till the date of
deposit.

IN M.F.A.NO.3160/2018:

BETWEEN:

1. Smt. Savitramma,
   W/o Late Ramu,
   Aged about 55 years,

3. Chandrashekar S.R.,
   S/o Late Ramu,
   Aged about 36 years,

Both are residing at No.13,
B.M.Main Road, 2nd Block,
Opp:Mahadeshwara Saw Mill,
Sathanur, Kanakapura Taluk,
Ramanagara District,
Karnataka - 562 126.
                                                ... Appellants
(By Sri.Rangegowda N.R., Advocate)

AND:

The Managing Director,
B.M.T.C, Shanthinagar,
                               3



Bangalore - 560 027.
                                                  ...Respondent
(By Sri.F.S.Dabali, Advocate)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 17.11.2017 passed
in MVC No.5553/2016 on the file of the VII Additional SCJ
& XXXII ACMM Member, MACT-3, Court of Small Causes,
Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

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

                       JUDGMENT

MFA No.2406/2018 is filed by the BMTC (for

short, 'the Corporation) whereas MFA No.3160/2018

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

17.11.2017 passed by the MACT, Bangalore in MVC

No.5553/2016. 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 appeal

briefly stated are that on 31.07.2016 at about 9.30

p.m. near AMC College, Bannerghatta - Bangalore

road, Jelli Mission, Jigani Hobli, Anekal Taluk, the

deceased Harish was about to cross the road. At that

time, one BMTC bus bearing registration No.KA-01/F-

3223 came rashly and negligently, dashed against the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries.

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

negligence of 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 got exhibited documents namely Ex.P1 to Ex.P11.

On behalf of respondents, neither any witness was

examined nor got exhibited documents. 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,

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.10,38,000/- along with interest at the rate of

8% p.a. and directed the Corporation to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the Corporation has

raised the following contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.20,000/- per month, the

same is not established by the claimants by producing

documents. The notional income assessed by the

Tribunal at Rs.7,500/- is on the higher side.

Secondly, the accident has occurred due to the

negligence of the deceased, the driver of the offending

vehicle was not negligent in causing the accident. The

deceased was crossing the road without following the

traffic rules and without observing the vehicles coming

in the road and he was crossing in the road where

there was no pedestrian crossing. The Tribunal is not

justified in holding that the driver of the offending

vehicle was negligent in causing the accident.

Thirdly, 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, learned counsel appearing

for the claimants has raised the following contentions:

Firstly, the accident occurred due to rash and

negligent driving of the driver of the bus. Immediately

after the accident, a complaint has been lodged

against the driver of the offending vehicle by one

eyewitness Gangadhar Naik On the basis of the

complaint the police have thoroughly investigated the

matter and filed charge sheet against the driver of the

offending vehicle. The driver has not challenged the

same. On the other hand, to disprove the claim, the

Corporation has not examined the driver. Therefore,

the Tribunal is not justified in holding that the driver

of the offending vehicle is negligent in causing the

accident.

Secondly, the claimants claim that the deceased

was earning Rs.20,000/- per month by working as a

cook and doing agriculture. But the Tribunal is not

justified in taking the monthly income of the deceased

as only Rs.7,500/-.

Thirdly, 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'.

Fourthly, 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

and perused the records.

9. The case of the claimants is that on

31.07.2016 at about 9.30 p.m. the deceased was

crossing the road near AMC College, Bannerghatta

road. At that time, the offending vehicle being driven

by its driver at a high speed and in a rash and

negligent manner dashed to the deceased. He fell

down and sustained injuries and succumbed to the

injuries. Immediately after the accident one

Gangadhara Naik who is the eyewitness to the

accident has lodged a complaint to the police. The

police, after thorough investigation have filed charge

sheet against the driver of the offending vehicle. The

claimants have examined the first claimant as PW-1

who has deposed that the accident occurred due to

the rash and negligent driving of the driver of the bus.

The claimants have also produced complaint, FIR, spot

mahazar, IMV report, spot sketch. But the respondent

neither examined any witness nor produced any

documents. Even they have not examined the driver

of the bus. Considering the evidence of PW-1 and the

documents produced, the Tribunal has rightly held

that the driver of the offending vehicle is negligent in

causing the accident.

10. The claimants claim that deceased was

earning Rs.20,000/- per month. But they have not

produced any documents to prove the income of the

deceased. In the absence of proof of income, the

notional income has to be assessed. As per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2016, the notional income of the deceased has

to be taken at Rs.9,500/- 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.13,300/-. Since the deceased was a bachelour, it

is appropriate to deduct 50% of the income of the

deceased towards personal expenses and remaining

amount i.e., Rs.6,650/- has to be taken as his

contribution to the family. The deceased was aged

about 31 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus,

the claimants are entitled to compensation of

Rs.12,76,800/- (Rs.6,650*12*16) 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' .

11. Thus, the claimants are entitled to the

following compensation:

          Compensation under             Amount in
             different Heads                (Rs.)
         Loss of dependency                12,76,800
         Funeral expenses                     15,000
         Loss of estate                       15,000
         Loss of Filial consortium            80,000
                         Total            13,86,800

12. In the result, the appeals are allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.13,86,800/- as against

Rs.10,38,000/- 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.

The Corporation is directed to deposit the

compensation amount along with interest at 6% p.a.

from the date of filing of the claim petition till the date