Karnataka High Court
The Managing Director vs Smt Yashodha on 8 December, 2023
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MFA No. 4921 of 2018
C/W MFA No. 6726 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 4921 OF 2018 C/W
MFA NO. 6726 OF 2018 (MV-D)
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICES, K.H.ROAD
SHANTHINAGAR
BANGALORE - 560 027 ... APPELLANT IN MFA NO.4921/2018
(RESPONDENT IN MFA NO.6726/2018)
(BY SRI. D. VIJAYAKUMAR, ADV. FOR
APPELLANT IN MFA NO.4921/2018]
SRI.K.VISHWANATHA, ADV FOR
APPELLANT IN MFA NO.6726/2018])
AND:
1. SMT. YASHODHA
W/O LATE RAJU
AGED ABOUT 40 YEARS
Digitally signed by
MALA K N
2. R.THANUSHREE
Location: HIGH COURT D/O LATE RAJU
OF KARNATAKA
AGED ABOUT 19 YEARS
BOTH ARE R/O
RAMAKRISHNAPURA VILLAGE
HENNAGARA POST, JIGANI HOBLI
ANEKAL TALUK, BANGALORE DIST - 560105
... RESPONDENTS IN MFA NO.4921/2018
(APPELLANTS IN MFA NO.6726/2018)
(BY SRI.K.VISHWANATHA, ADV. FOR
RESPONDENTS IN MFA NO.4921/2018]
SRI. D. VIJAYAKUMAR, ADV. FOR
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MFA No. 4921 of 2018
C/W MFA No. 6726 of 2018
RESPONDENT IN MFA NO.6726/2018])
THESE MFA'S ARE FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
21.02.2018 PASSED IN MVC NO.8306/2016 ON THE FILE OF
THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSES JUDGE,
COURT OF SMALL CUASES. MACT, BENGALURU, AWARDING
COMPENSATION OF RS.12,96,600/- WITH INTEREST AT 8%
P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT
(IN MFA NO.4921/2018). PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION (IN MFA NO.6726/2018)
THESE MFA'S HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.11.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In these appeals, both B.M.T.C. and the
petitioners have challenged the judgment and award
dated 21.02.2018 in M.V.C.No.8306/2016 passed
the XXI A.C.M.M. and XXIII A.S.C.J., Bengaluru
(SCCH-25) ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties will be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, son of the
1st petitioner and brother of 2nd petitioner by name
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Rakesh @ Rakesh Kumar, while riding his Honda Dio
motor cycle bearing Reg.No.KA-51/EG-1383 on
08.12.2016 at about 12:30 pm on Chandapura to
Anekal Road near Vishnu Hotel of Chandapura was
knocked down by a B.M.T.C. bus bearing Reg.No.KA-
57/F-0943 killing him at the spot. Claiming that the
petitioner was working as a Helper in a private
company, earning Rs.12,000/- per month, the
petitioners have moved the Tribunal for grant of
compensation of Rs.40,00,000/-. Claim was
opposed by the B.M.T.C. The Tribunal after taking
the evidence, by impugned judgment awarded a sum
of Rs.12,96,600/- with interest of 8% p.a.
Aggrieved by the same, B.M.T.C. has filed
M.F.A.No.4921/2018; pleading inadequacy and
seeking enhancement, the petitioners have filed
M.F.A.No.6726/2018 on various grounds.
4. Heard the arguments of
Sri. D. Vijaya Kumar, learned counsel for the
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B.M.T.C. and Sri. K. Vishwanatha, learned counsel
for the petitioners.
5. It is the contention of learned counsel for the
B.M.T.C. that there is no direct involvement of the
bus in the accident. It is the deceased who was
overtaking the bus and hit on the left side and
thereby tailored the accident. The Tribunal failed to
consider the contributory negligence on part of the
deceased and erroneously fastened the liability
against the B.M.T.C. in toto, interest awarded at 8%
p.a. is in excess and he sought for interference.
6. Per contra, learned counsel for the
petitioners has contended that if the deceased was
to overtake, he ought to have overtaken the bus
from right side of the bus. The deceased was riding
his motor cycle on the left side of the road. It is the
bus which had hit against the motor cycle on the left
side of the bus, that too on the rear wheel. There is
no contributory negligence on part of the deceased.
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The Tribunal has correctly assessed the material on
record and attributed negligence against the driver
of the bus. It is further contended that the accident
is of the year 2016. The deceased was earning
Rs.12,000/- per month by working in a private
company, but the Tribunal has taken the income at
Rs.8,000/-. Even a person with no proof of income
in the year 2016 will earn not less than Rs.9,500/-
and he sought for enhancement of the
compensation.
7. I have given my anxious consideration to the
arguments advanced on both sides and also perused
the materials on record.
8. There is no dispute as to the accident, cause
of the accident and death of the deceased on
account of rear left wheel of the B.M.T.C. bus
running over on the head of the deceased. B.M.T.C.
has attributed complete negligence on part of the
deceased as he has tried to overtake the bus on the
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left side and hit on the left rear wheel portion of the
bus and tailored the accident. It is the rival
contention of the petitioners that the deceased was
not overtaking the bus, he was on the complete left
side, it was the bus which hit against the motor
cycle, killing him at the spot.
9. Before the Tribunal on behalf of the
petitioners, apart from the 1st petitioner, two
witnesses have been examined as PWs-2 and 3 and
relied upon Exs.P1 to P5 with regard to the accident
and Exs.P6 to P16 with regard to the identity and
employment of the deceased.
10. PW-2 Sri. Yuvaraj. C is an eye witness to
the accident. He has specifically stated on oath that
while the deceased was riding the motor cycle, the
B.M.T.C. bus came behind him and left side of the
bus was touched against him, pulling him down and
the rear left wheel ran over on his head killing him at
the spot. The cross-examination of PW-2 has not
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shaken his demeanour, rather it explains that he was
working near Vishnu Hotel and he can be safely
treated as an eye witness. PW-2 was 10 ft. away
when B.M.T.C. bus ran over and hit the deceased.
The police papers point out and attribute the
negligence against the driver of B.M.T.C. bus. PW-2
is sighted as an eye witness to the incident in the
charge sheet. These materials on record clearly
establish that the deceased was not overtaking the
bus from the left side. Contrary, the bus overtook
the motor cycle, touched it near rear left wheel,
pulling him down beneath the wheel killing him at
the spot. Hence, the material on record did not
persuade or stand in support of the argument
canvassed on behalf of the B.M.T.C.
11. PW-3 Sri. Govinda Reddy, the Boiler
Professional working at M/s K. Mohan and Company
(Exports) Pvt. Ltd., Bengaluru states about the
employment of the deceased and salary of
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Rs.12,000/- drawn by him. In support of it, he has
produced the pay slip of the deceased as per Exs.P14
to 16. These documents did point out that the
deceased was drawing a salary of Rs.8,505/- in the
month of February 2016 and Rs.8,475/- in the
month of March 2016. No professional tax has been
deducted from his salary. Having regard to the
employment of the deceased, Rs.8,475/- could be
the income of the deceased per month of March
2016 could be assessed. Hence, the contention of
the petitioners that the deceased was earning
Rs.12,000/- per month. Hence, the income of the
deceased is assessed at Rs.8,475/-. Medical records
point out that the deceased was aged 19 years and
the same can be safely accepted. The argument of
learned counsel for B.M.T.C. that the 2nd petitioner
being the major sister, she cannot be treated as a
dependant. Irrespective of the 2nd petitioner being a
major sister, since the deceased is a bachelor, 50%
has to be deducted towards personal expenses.
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2nd petitioner is an unmarried 19 year old sister, she
is residing with the mother and the argument is not
convincing that she is not a dependant.
12. In a case of this nature, principles of
assessment of compensation is settled by the
Hon'ble Apex Court in National Insurance Co.Ltd.
-Vs- Pranay Sethi and Others1, Sarla Varma
(Smt.) and Others -Vs- Delhi Transport
Corporation and Another2 and Shri Ram General
Insurance Co. Ltd. -Vs- Bhagat Singh Rawat &
Ors.3. By applying these principles, compensation
has to be determined on both loss of dependency as
well as the conventional heads.
13. As discussed above, the income of the
deceased is taken at Rs.8,475/-, he was aged 19
years and therefore, multiplier of '18' is to be
applied. Since the deceased is not having a
(2017) 16 SCC 680
(2009) 6 SCC 121
Civil Appeal Nos.2410-2412/2023, decided on 27.03.2023
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permanent avocation, 50% has to be assessed
towards future prospects and 50% has to be
deducted towards personal expenses. Then, loss of
dependency will be Rs.8,475/- + Rs.4,237/- (50%)
= Rs.12,712/- - Rs.6,356 (50%) = Rs.6,356/- x 12
x 18 = Rs.13,72,896/-. Towards loss of love and
affection, Rs.50,000/- to the petitioners and towards
loss of estate and funeral expenses, a sum of
Rs.15,000/- each has to be assessed. Total
compensation under conventional heads comes to
Rs.80,000/-. The claim is of the year 2016. Already
7 years have been elapsed. Hence, 10% has to be
increased for every third year. Hence, for two
terms, a sum of Rs.16,000/- is added, then total
compensation under conventional heads comes to
Rs.96,000/-. If all these are summed up, the total
compensation comes to Rs.14,68,896/- as against
Rs.12,96,600/-, the difference will be Rs.1,72,296/-,
which is the just compensation that the petitioners
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are entitled to in the facts and circumstances of the
case.
14. Adverting to the argument of B.M.T.C. that
the rate of interest is awarded on the higher side, no
doubt that in the year 2016, no banks were offering
interest at 8% p.a. on any fixed deposit. As
regarding the rate of interest is concerned, it is
noticed that there are variations from one judgment
to another, there is no uniformity. In this regard,
the Division Bench of this Court in Ms. Joyeeta
Bose and Ors. -Vs- Venkateshan. V and Ors.4 in
with reference to Section 149(1) of Motor Vehicles
Act, 1988, Rule 253 of Karnataka Motor Vehicles
Rules, 1989 and Section 34 of Civil Procedure Code,
at Para 52 has laid down principles regarding award
of interest, it reads thus:
"52.Thus, under Section 34 of CPC being
squarely applicable to the interest awarded by the
tribunal and Section 34 empowering the tribunal to
M.F.A.No.5896/2018 c/w M.F.As.No.4444/2018 and 4659/2018
(MV), decided on 24.08.2020
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award pendente lite interest and discretion being
vested with the Court/tribunal to award interest
from the date of suit or petition is to the maximum
extent of 6% p.a. or in other words, not exceeding
6% p.a., the contention raised by the learned
Advocates appearing for the Insurance Company
deserves to be accepted and accordingly, it is
accepted. . . . . . . . . . . ."
In view of the above settled principles, the rate
of interest has to be maintained uniformly at 6% and
accordingly the petitioners are entitled to interest.
Hence, both the appeals merit consideration, in the
result, the following:
ORDER
i) Both the appeals are allowed in part.
ii) Impugned judgment and award is
modified.
iii) The petitioners are entitled to total
compensation of Rs.14,68,896/- as
against Rs.12,96,600/-, thereby
enhancement of Rs.1,72,296/-.
iv) B.M.T.C. is directed to deposit the
amount of compensation within eight
weeks from the date of receipt of
certified copy of the judgment with
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interest of 6% p.a. from the date of
petition till the date of deposit.
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
