Karnataka High Court
Smt Kamalamma vs The Managing Director on 31 July, 2024
Author: H T Narendra Prasad
Bench: H T Narendra Prasad
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6435 OF 2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7860 OF 2018(MV)
IN MFA 6435/2018
BETWEEN:
THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD
SHANTHINAGAR
BENGALURU-560027.
NOW THROUGH CHIEF LAW OFFICER.
...APPELLANT
(BY SRI. NAGARAJA K.,ADVOCATE)
AND:
1. SMT KAMALAMMA
Digitally signed by W/O.SRI.ERAIAH
HEMALATHA A AGED ABOUT 51 YEARS
Location: HIGH
COURT OF
KARNATAKA 2. CHANDRIKA B E
D/O SRI ERAIAH
AGED MAJOR
R1 & R2 ARE R/O NO.699
1ST E CROSS, 4TH BLOCK
BASAVESHWARANAGAR
BANGALORE.
3. B E MURALIDHARA
S/O ERAIAH
AGED MAJOR
R/O.NO.20, KRISHNA NIVAS
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
DASANAPURA, MAAKALI POST
BANGALORE-560021.
4. B E PARAMESHWARA
S/O ERAIAH
AGED MAJOR
R/O.NO.222,(822), 10TH COSS
ASHRAYA NAGARA
ADAKAMARANAHALLI
BANGALORE-562123.
...RESPONDENTS
(BY SRI.SHAM A NEMICAL., ADVOCATE FOR R1:
NOTICE TO R2 & R4 ARE SERVED AND UNREPRESENTED
NOTICE TO R3 IS DISPENSED WITH
V/O DATED: 31.07.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04/05/2018,
PASSED IN MVC NO.176/2017, ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER,
MACT, (SCCH-15), BENGALURU, AWARDING COMPENSATION
OF RS.4,38,500/- WITH INTEREST @ 6% P.A., FROM THE DATE
OF THE PETITION TILL REALIZATION.
IN MFA 7860/2018
BETWEEN:
1. SMT KAMALAMMA
W/O.SRI.ERAIAH
AGED ABOUT 51 YEARS
2. CHANDRIKA B E
D/O SRI ERAIAH
AGED MAJOR
R1 & R2 ARE R/O NO.699
1ST E CROSS, 4TH BLOCK
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NC: 2024:KHC:30221
MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
BASAVESHWARANAGAR
BANGALORE.
... APPELLANTS
(BY SRI. SHAM A NEMICAL, ADVCOATE)
AND:
1. THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD
SHANTHINAGAR
BENGALURU-560027.
2. B E MURALIDHARA
S/O ERAIAH
AGED MAJOR
R/O.NO.20, KRISHNA NIVAS
DASANAPURA, MAAKALI POST
BANGALORE-21.
3. B E PARAMESHWARA
S/O ERAIAH
AGED MAJOR
R/O.NO.222,(822), 10TH COSS
ASHRAYA NAGARA, ADAKAMARANAHALLI
BANGALORE-562123.
...RESPONDENTS
(BY SRI. NAGARAJA K, ADVOCATE FOR R1:
NOTICE TO R2 & R3 ARE DISPENSED WITH
V/O DATED: 31.07.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 04.05.2018
PASSED IN MVC NO.176/2017 ON THE FILE FO THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER
MACT, BENGALURU(SCCH-15) PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
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MFA No. 6435 of 2018
C/W MFA No. 7860 of 2018
ORAL JUDGMENT
1. MFA 6435/2018 is filed by the BMTC and MFA
7860/2018 is filed by the claimants under Section 173(1)
of the Motor Vehicles Act, 1988 (hereinafter referred to as
'the Act', for short) challenging the judgment and award
dated 04.05.2018 passed by the MACT, Bengaluru in MVC
No.176/2017.
2. Facts giving rise to the filing of the appeals briefly
stated are that on 13.02.2016, when the deceased Earaih
was crossing the road, near Basaveshwara Nagar water
tank, Bengaluru, at that time, a BMTC bus bearing
registration No.KA-01-F-3716 which was being driven in a
rash and negligent manner, 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.
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4. Upon service of notice, the respondent appeared
through counsel and filed written statement denying the
averments made in the claim 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 the case,
examined claimant No.1 as PW-1, and another witness as
PW-2, and got exhibited documents namely Ex.P1 to
Ex.P21. On behalf of respondent, one witness was
examined as RW-1 but not produced 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.438,500/- along with interest at the rate of 6% p.a.
and directed the BMTC to deposit the compensation
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amount along with interest. Being aggrieved, these
appeals have been filed.
6. The learned counsel for the BMTC has raised the
following contentions:
INVOLVEMENT OF OFFENDING VEHICLE
The learned counsel has submitted that the bus
bearing No.KA-01-F-3716 is not involved in the accident.
The claimants, in order to make a false claim, have filed
the claim petition seeking compensation. To prove the
case, the Corporation has examined the driver of the bus
as RW-1. The Tribunal without considering this aspect of
the matter, has erred in holding that the bus is involved in
the accident. The said finding of the Tribunal is contrary to
materials available on record.
QUANTUM OF COMPENSATION
a) Firstly, although the claimants claim that the
deceased was earning Rs.18,000/- per month by doing
real estate business, they have failed to substantiate their
claim with supporting documents. Consequently, the
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Tribunal has correctly assessed the income of the
deceased notionally.
b) Secondly, the claimants are wife and major children
of the deceased and they are not dependent on the
income of the deceased. Therefore, the Tribunal has erred
in awarding compensation towards 'loss of dependency'.
c) Lastly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is excessive.
With the above contentions, the learned counsel
sought to allow the appeal filed by the BMTC and dismiss
the appeal filed by the claimants.
7. On the other hand, the learned counsel for the
claimants has raised the following counter-contentions:
INVOLVEMENT OF OFFENDING VEHICLE
The learned counsel contended that immediately
after the accident, the complaint has been lodged against
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the driver of the bus. The police has registered FIR against
the driver of the bus and after detailed investigation,
charge sheet has been filed against him. Subsequently,
the bus has been seized. It is very clear from the evidence
of PW-1 and PW-2 (eye-witness) and materials available
on record that the bus was involved in the accident.
Considering all these aspects, the Tribunal has rightly held
that the accident occurred due to negligence of the driver
of the bus.
QUANTUM OF COMPENSATION
a) Firstly, the claimants assert that the deceased was
approximately aged about 77 years at the time of the
accident and had a monthly income of Rs.18,000/-.
However, the assessment of income of the deceased at
Rs.7,000/- by the Tribunal is unjustified and erroneous.
b) Secondly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ
2782], each of the claimants is entitled to compensation
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of Rs.40,000/- under the head of 'loss of love and affection
and consortium'.
c) Lastly, considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is inadequate and on the lower side.
With the above contentions, the learned counsel
sought to allow the appeal filed by the claimants and
dismiss the appeal filed by the BMTC.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
INVOLVEMENT OF VEHICLE
9. The specific case of the claimants is that on
13.02.2016, when the deceased Earaih was crossing the
road, near Basaveshwara Nagar water tank, Bengaluru, at
that time, a BMTC bus bearing registration No.KA-01-F-
3716 which was being driven in a rash and negligent
manner, dashed against the deceased. As a result of the
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aforesaid accident, the deceased sustained grievous
injuries and succumbed to the injuries on 29.02.2016.
10. Immediately after the accident, a complaint has been
lodged against the driver of the bus as per Ex.P-1(a). The
police registered FIR (Ex.P-1) against the driver of the
bus, and following a detailed investigation, charge sheet
(Ex.P-14) has been filed against driver of the bus.
Subsequently, the bus has been seized by the Police.
11. Therefore, it is very clear from the evidence of PW-1
and PW-2 (eye-witness), and materials available on record
that the BMTC bus bearing No.KA-01-F-3716 was involved
in the accident occurred on 13.02.2016. The Tribunal has
rightly held that the accident occurred due to sole
negligence on the part of the driver of the bus. There is no
error or infirmity in the said finding of the Tribunal.
QUANTUM OF COMPENSATION
12. The claimants claim that deceased was earning
Rs.18,000/- per month, but failed to produce supporting
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documents to substantiate their claim. In the absence of
proof of income, the notional income has to be assessed.
According to the guidelines issued by the Karnataka State
Legal Services Authority, for accidents occurred in the year
2016, the notional income of the deceased shall be taken
at Rs.9,500/- p.m. Considering the number of dependents,
the Tribunal has rightly deducted 1/3rd of the income of
the deceased towards personal expenses and remaining
has been taken as his contribution to the family. The
deceased was aged about 77 years at the time of the
accident and multiplier applicable to his age group is '5'.
Thus, the claimants are entitled to compensation of
Rs.380,000/- (Rs.9,500*12*5*2/3) on account of 'loss of
dependency'.
13. 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'. Claimant No.1, wife of the deceased is
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entitled for compensation of Rs.40,000/- under the head
of 'loss of spousal consortium'.
14. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant Nos.2 to 4, children of the deceased are entitled
for compensation of Rs.40,000/- each under the head of
'loss of parental consortium'.
15. The compensation of Rs.88,500/- awarded by the
Tribunal under the head of 'medical expenses' is based on
the medical bills produced by the claimants and is deemed
just and reasonable.
16. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 380,000
Funeral expenses 15,000
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Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of Parental consortium 120,000
Medical expenses 88,500
Total 658,500
17. In the result, the following order is passed:
ORDER
a) The appeal filed by the BMTC is dismissed. The
appeal field by the claimants is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of
Rs.6,58,500/- as against Rs.4,38,500/- awarded by the
Tribunal.
d) The BMTC 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 of realization, within
a period of six weeks from the date of receipt of a copy of
this judgment.
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e) The apportionment, deposit and release of amount
shall be made in accordance with the terms of the award
of the Tribunal.
f) The amount in deposit, if any, shall be transferred to
the Tribunal for disbursement
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
