Karnataka High Court

The Managing Director vs Smt Venaktarathna on 25 October, 2024

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                                                                  MFA No. 6560 of 2017
                                                              C/W MFA No. 3951 of 2019



                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 25TH DAY OF OCTOBER, 2024

                                                 PRESENT
                                 THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                                    AND
                                THE HON'BLE MR JUSTICE VENKATESH NAIK T
                           MISCELLANEOUS FIRST APPEAL NO.6560 OF 2017 (MV-D)
                                                    C/W
                           MISCELLANEOUS FIRST APPEAL NO.3951 OF 2019 (MV-D)


                      IN MFA NO.6560/2017:

                      BETWEEN:

                            THE MANAGING DIRECTOR
                            A.P.S.R.T.C. BUS BHAVAN
                            A.P.S.R.T.C. BUS STATION COMPLEX
                            TIRUPATHI
                            ANDHRA PRADESH - 517 501.
                            (A.P.S.R.T.C. BUS BEARING REG NO. AP-03-Z-5156)
                            BRANCH OFFICE: KEMPEGOWDA BUS STAND
                            BENGALURU
                            REP. BY ITS MANAGING DIRECTOR
                            A.P.S.R.T.C., MUSHIRABAD
Digitally signed by
MOUNESHWARAPPA              HYDERABAD.
NAGARATHNA
Location: HIGH                                                       ...APPELLANT
COURT OF
KARNATAKA             (BY SRI D. VIJAYAKUMAR, ADVOCATE)
                      AND:

                      1.    SMT. VENKATARATHNA
                            W/O. LATE VENKATESH T. P.
                            AGED ABOUT 29 YEARS

                      2.    PREETHI
                            D/O. LATE VENKATESH T. P.
                            AGED ABOUT 7 YEARS
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                                           MFA No. 6560 of 2017
                                       C/W MFA No. 3951 of 2019



3.   DHRUVARAJ
     S/O. LATE VENKATESH T. P.
     AGED ABOUT 6 YEARS

     SINCE THE RESPONDENT NOS.2 & 3 ARE MINORS
     REP. BY THEIR MOTHER AND NATURAL GUARDIAN 1ST
     RESPONDENT: SMT. VENKATARATHNA

4.   SRI PERUMALAPPA
     S/O. LATE LAKSHMAIAH
     AGED ABOUT 56 YEARS

5.   SMT. YELLAMMA
     W/O. PERUMALAPPA
     AGED ABOUT 46 YEARS

     ALL ARE R/AT NO.28
     THAVAREKERE, HOSAKOTE TALUK
     BENGALURU RURAL DISTRICT-562 122

                                                  ...RESPONDENTS
(BY SRI D. NAGARAJA REDDY, ADVOCATE FOR R-1, R-4 & R-5;
    R-2 & R-3 ARE MINORS REP. BY R-1)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.03.2017 PASSED
IN MVC NO.500/2016 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE, & XXVIII ACMM, MACT, BENGALURU, AWARDING
COMPENSATION OF Rs.16,63,200/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN COURT.


IN MFA NO.3951/2019:

BETWEEN:

1.   SMT. VENKATARATHNA
     AGED ABOUT 31 YEARS
     W/O. LATE VENKATESH T. P.

2.   KUMARI PREETHI
     AGED ABOUT 9 YEARS
     D/O. LATE VENKATESH T. P.
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                                        MFA No. 6560 of 2017
                                    C/W MFA No. 3951 of 2019



3.   MASTER DHRUVARAJ
     AGED ABOUT 8 YEARS
     S/O. LATE VENKATESH. T. P.

     SINCE THE APPELLANT NOS.2 & 3 ARE MINORS
     REP. BY THEIR MOTHER AND NATURAL GUARDIAN
     SMT. VENKATARATHNA
     THE APPELLANT NO.1 HEREIN

4.   SRI PERUMALAPPA
     AGED ABOUT 58 YEARS
     S/O. LATE LAKSHMAIAH

5.   SMT. YELLAMMA
     AGED ABOUT 48 YEARS
     W/O. PERUMALAPPA

     ALL RESIDENTS R/AT NO.28
     TAVAREKERE, HOSAKOTE TALUK
     BENGALURU RURAL DISTRICT-562 129.
                                             ...APPELLANTS

(BY SRI NAGARAJA REDDY D., ADVOCATE)

AND:

     THE MANAGING DIRECTOR
     A.P.S.R.T.C. BUS BHAVAN
     A.P.S.R.T.C. BUS STATION COMPLEX
     TIRUPATHI
     ANDHRA PRADESH - 517 501.)
     BRANCH OFFICE: KEMPEGOWDA BUS STAND
     BENGALURU.
                                        ...RESPONDENT

(BY SRI D. VIJAYAKUMAR, ADVOCATE)

    THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.03.2017
PASSED IN MVC NO.500/2016 ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MOTOR
VEHICLES   ACCIDENT   CLAIMS    TRIBUNAL,  BENGALURU
(SCCH.13),  PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING     ENHANCEMENT   OF
COMPENSATION.
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                                          MFA No. 6560 of 2017
                                      C/W MFA No. 3951 of 2019



      THESE APPEALS, HAVING BEEN HEARD AND RESERVED ON
12.09.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, VENKATESH NAIK T., J, PRONOUNCED THE FOLLOWING:

CORAM:    HON'BLE MRS JUSTICE K.S.MUDAGAL
          and
          HON'BLE MR JUSTICE VENKATESH NAIK T


                        CAV JUDGMENT

(PER: HON'BLE MR JUSTICE VENKATESH NAIK T)

These appeals arise out of the award in MVC

No.500/2016 passed by the Motor Vehicles Claims Tribunal, II

Additional Small Causes Judge and XXVIII ACMM, Bengaluru.

MFA No.3951/2019 is filed by the claimants seeking

enhancement of the compensation and MFA No.6560/2017 is

filed by the Andhra Pradesh State Transport Corporation (for

short 'Corporation') owner of the offending vehicle seeking

dismissal of MVC No.500/2016.

The appellants in MFA No.3951/2019 were claimants No.1

to 5, respondent in the said appeal was respondent in

MVC No.500/2016. The appellant in MFA No.6560/2017 was

respondent and respondents in this appeal were claimants

before the tribunal.

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For the purpose of convenience, the parties will be

referred henceforth according to their ranks before the

Tribunal.

2. Claimant No.1 is wife, claimant Nos.2 and 3 are

children and claimant Nos.4 and 5 are parents of deceased

Venkatesh. On 15.12.2015, in between 10.00 a.m. and

10.30 a.m., when Venkatesh was proceeding as pedestrian on

the left side of NH-75, Tavarekere village, Nandagudi Hobli,

Hoskote Taluk, APSTRC bus bearing No.AP-03-Z-5156 hit him

and caused his instantaneous death. The post mortem of the

dead body was conducted at Hoskote Government Hospital.

3. Sri.Perumalappa, the father of deceased Venkatesh

filed complaint to Nandagudi police vide Ex.P2. On the basis of

the complaint, the Nandagudi police registered FIR as per Ex.P1

in Crime No.292/2015 against the driver of APSRTC bus

bearing registration No. AP 03 Z 5156, for the offence

punishable under Sections 279 and 304(A) of IPC. On

investigation, the police charge sheeted the driver of APSRTC

bus No.AP 03 Z 5156 for the offences under Sections 279 and

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304A IPC. At the relevant time, respondent was the registered

owner of the bus.

4. The claimants filed MVC No.500/2016 under Section

166 of the MV Act claiming that the accident and consequential

death of Venkatesh occurred due to actionable negligence of

the driver of the bus. They further claimed that, they were

residing with deceased Venkatesh and dependent on him. Thus,

they claimed compensation of Rs.20,00,000/-. They claimed

that respondent being the owner of offending vehicle was liable

to pay the compensation.

5. The respondent, the owner of APSRTC bus contested

the matter and denied the occurrence of the accident as

alleged, the involvement of the bus in the accident, age,

occupation, income of the deceased and dependency of the

claimants on the deceased. Respondent denied its liability to

pay the compensation.

6. The Tribunal relying on the oral evidence of PWs.1 and

2, Ex.P.1 to P14 and evidence of RW.1 held that, claimants

were dependant on the deceased. The Tribunal notionally

considered the income of the deceased at Rs.9,000/- per month

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and added 50% to the same by way of future prospectus and

deducted 1/4th towards personal expenses of the deceased.

The Tribunal applied '16' multiplier and awarded compensation

of Rs.19,44,000/- under the head of 'loss of dependency'. The

Tribunal in all assessed compensation of Rs.20,79,000/- on

different heads as per the table below:

 Sl.No.            Particulars                  Compensation
                                                awarded in Rs.
1.        Transportation of dead body               30,000
          and funeral expenses
2.        Loss of dependency                      19,44,000

3.        Loss of love and affection                50,000

4.        Loss of consortium                        25,000

5.        Loss of Estate                            30,000

                      Total                     20,79,000/-

The Tribunal held that respondent-Corporation is liable to

pay compensation to the claimants. The Tribunal fixed 80%

contributory negligence on the driver of APSRTC bus bearing

registration No. AP 03 Z 5156 and 20% on deceased

Venkatesh. Accordingly, the Tribunal observed that, the

claimants are entitled for compensation to the quantum of 80%

which comes to Rs.16,63,200/- with interest at 6% per annum.

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7. Challenging the quantum of compensation, claimants

have preferred MFA No.3951/2019. Challenging the finding

regarding involvement of vehicle, negligence and quantum of

compensation awarded, the Corporation has preferred

MFA No.6560/2017.

Submissions of Sri D. Nagaraja Reddy, learned counsel appearing for claimants;

8. On thorough investigation, the police have filed charge

sheet against the driver of APSRTC bus bearing registration

No.AP 03 Z 5156, which is not challenged by the Corporation.

The charge sheet is the prima facie proof of rashness and

negligence on the part of driver of the bus. Further, the

respondent got examined one Subramanyam, the driver of

APSRTC bus bearing registration No. AP 03 Z 5156, wherein, he

has stated that, on either of the road side, the National

Highway Authority have erected steel barricade and thus,

deceased Venkatesh should not have made an attempt to cross

the road. However, RW.1 has not denied the accident in specific

terms, seizure of bus from the spot of the accident and

therefore, it is not open to the respondent to deny the

involvement of the vehicle in the accident. He further submits

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that, the income of the deceased and compensation awarded

on the other heads by the Tribunal is on lower side. Hence, the

learned counsel prayed to allow the appeal filed by the

claimants.

Submissions of Sri D. Vijayakumar, learned counsel appearing for the respondent Corporation;

9. Contributory negligence saddled upon the driver of

APSRTC bus at 80% and 20% on the deceased is not in

accordance with law. In fact, APSRTC bus bearing registration

No. AP 03 Z 5156 was not at all involved in the accident, as

alleged by the claimants and the investigating officer.

Deceased while negligently crossing the road seems to have hit

by some other vehicle and the said vehicle driver must have

escaped with the vehicle from the spot. Police being unable to

trace the said vehicle have falsely implicated the aforesaid bus,

which regularly operates on the road route. There is no rash or

negligent act on the part of the driver of the bus. Further, PW.1

Smt. Venkatarathna, wife of deceased, is not an eyewitness or

complainant. She has given false evidence implicating the

APSRTC bus. Tribunal committed error on believing her

evidence and fixing 80% negligence to the driver of APSRTC

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bus. The Tribunal not at all considered admissions given by

PW.1 in her cross examination. The person who lodged the

complaint by name Perumallappa is none other than father of

deceased Venkatesh, who was not examined before the

Tribunal and he was not at all present at the place of accident.

Added 50% towards future prospectus to the income of

deceased is erroneous. As per Pranay Seti's case, 40% future

prospectus could be added to the income of the deceased for

the age group below 40 years. Compensation awarded on other

heads is unsustainable and contrary to the dictum of the

Hon'ble Apex Court in the case of National Insurance

Company Limited vs. Pranay Sethi reported in (2017) 16

SCC 680. Claim petition shall be dismissed.

10. On hearing the submissions of both side and on

perusal of the material on record, the following questions arise

for our consideration:

(1) Whether the finding of the Tribunal that death of Venkatesh was caused due to rash and negligent driving of the APSRTC bus bearing register No.AP 03 Z 5156, by its driver is sustainable?

(2) Whether compensation awarded by the Tribunal to the claimants is just one?

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ANALYSIS

11. The initial burden of proving the fact that on

15.12.2015 at 10:30 a.m. on National Highway-75, Tavarekere

Village, Nandagudi Hobli, Hoskote Taluk, RW.1-Subramanyam,

the driver of APSRTC bus bearing Registration No.AP 03 Z 5156

drove the same in a rash and negligent manner, so as to

endanger the human life and hit Venkatesh causing his death,

is on the claimants. To discharge the said burden, the claimants

examined PW.1 i.e., claimant No.1-Venkatarathna wife of

deceased. In her evidence, she has reiterated the contents of

claim petition. She had relied on Ex.P1-FIR, Ex.P2-complaint,

Ex.P3-spot mahazar, Ex.P4 spot sketch, Ex.P6-IMV report and

Ex.P8-Charge sheet to show that her husband Venkatesh died

in the road traffic accident. Aforesaid documents, Ex.P5-inquest

report and Ex.P7-PM report show that deceased Venkatesh died

in the road traffic accident and same is not much disputed. As

per Ex.P8 charge sheet, RW.1-Subramanyam was the driver of

APSRTC bus and he was charge sheeted for the offences

punishable under Sections 279 and 304(a) of IPC. As per the

opinion of the doctor mentioned in Ex.P7-PM report, the cause

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of death was due to shock and hemorrhage and injuries

sustained to vital organ brain in the road traffic accident.

12. In order to corroborate the oral testimony of PW.1,

the claimant got examined one T.M. Lokesh as PW.2. In his

evidence, he has stated that he witnessed Venkatesh, crossing

the road by observing the vehicular movement, and, driver of

APSRTC bus No.AP 03 Z 5156 coming in rash and negligent

manner, dashing against Venkatesh. He says Venkatesh, fell

down and suffered fatal injuries and succumbed to the same at

spot. In the cross examination, he has stated that he knows

deceased since three to four years prior to accident and the

police had prepared the mahazar with regard to the accident at

the spot and he was also present at the time of drawing

mahazar. He has further stated that merely because he has not

given the complaint, it cannot be said that he was not at all

present at the spot. He further stated that he was not having

the knowledge as to the fact how complaint came to be lodged

and he has not come forward to give the complaint. He has also

stated that the bus was at the spot till 2.00 p.m. and

thereafter, it was taken to station. But, as per Ex-P3 mahazar,

the bus bearing registration No.AP 03 Z 5156 was found just

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20 feet away from the spot of accident. This itself makes out

the involvement of the vehicle in the accident. This fortifies the

evidence of PW2 that the bus was involved in the accident and

that deceased Venkatesh was crossing the road when the

accident occurred.

13. Per-contra, RW.1 the driver of the APSRTC bus has

stated in his evidence that his bus was not at all involved in the

accident and said bus had not at all been seized. It is not

known as to why RW-1 the driver of the bus had parked the

bus within a distance of 20 ft from the place of accident, if the

bus was not involved in the accident. As per his own evidence,

nobody had asked him to park the bus near the place of

accident, he had voluntarily parked the bus. As per spot

mahazar Ex-P3 and spot sketch Ex-P4, the bus was parked

near the place of accident. As per IMV report- Ex.P6, the front

left mud guard of the bus was damaged, but, the driver of the

bus has not offered any explanation as to how the mud guard

of the bus was damaged. The fact that a person was crossing

the road as soon as he alighted from other vehicle in order to

go to his house will not lead to conclusion of contributory

negligence. As per the sketch, the road on the spot was

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straight. Hence, one can easily see the person who enters the

road. Under such circumstances, the driver of the bus could

have averted the accident if he was diligent. As per the IMV

report, the accident was not due to any mechanical defect of

the bus. In the absence of any evidence to show the wrongful

act on the part of the deceased, reasonably it can be concluded

that driver of bus alone contributed to the accident. Therefore,

deceased could not have been held guilty of contributory

negligence of 20%. Hence, the reduction of 20% towards

contributory negligence is clearly unjustified and the same has

to be set-aside.

14. Learned counsel for the Corporation would contend that

on either side of NH 75, there is steel barricades and nobody

would enter that area. As per the spot mahazar, sketch and

from the evidence of PW.1 and PW.2, it clearly establishes that,

at the place of accident, there is a bridge underneath NH 75 to

reach Tavarakere village and it is obvious that if anybody

alights from vehicle on either side of the road, one could cross

the road. Hence, one cannot presume that the deceased was

utterly negligent in crossing the road. From the material on

record, it transpires that the bus bearing registration

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No.AP 03 Z 5156 is involved in the accident and the

Corporation has not placed any contra documents to discredit

oral testimonies of PW.1 and PW.2. Hence, the Corporation is

liable to pay compensation to the claimants. The tribunal

without assigning proper reasons contributed negligence on the

driver of the bus at 80% and 20% on the deceased, which

requires interference of this Court. Infact, there was 100%

negligence on the part of the driver of the bus, thus,

Corporation is held liable to pay entire compensation.

15. As per the material available on record, claimant No.1

is wife, claimant Nos.2 and 3 are children and claimant Nos.4

and 5 are parents of deceased Venkatesh. At the time of the

accident, deceased was aged about 32 years and working as

mason. No document is produced in proof of his income. The

Tribunal considered the notional income of the deceased at

Rs.9,000/- per month for the accident of the year 2015.

Considering the wage rates and cost of living at relevant time,

the said assessment is fair and reasonable.

16. As per the principle of law laid down by the Hon'ble

Apex Court in the case of National Insurance Company

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Limited vs. Pranay Sethi reported in (2017) 16 SCC 680,

40% of the income is to be added towards 'loss of future

prospectus in life' for the age group below 40 years, but, the

tribunal has taken 50% towards future prospectus of the

deceased, which is incorrect. There are five dependants of the

deceased. Therefore, 1/4th of his income would be deducted

towards his personal and living expenses. Deceased was aged

32 years at the time of the accident. Therefore, the applicable

multiplier as per the judgment of the Hon'ble Supreme Court in

the case of Smt. Sarla Verma and Others vs. Delhi

Transport Corporation and another reported in AIR 2009

SC 3104 is '16'. Therefore, the compensation under the head

'loss of dependency' along with 'loss of future prospectus in life'

is recalculated and quantified as follows:-

Rs.9,000 + 40% future prospectus=Rs.3,600/-, total

Rs.12,600/-. 1/4th of personal expenses is deducted from

the total amount which comes to Rs.12,600 - Rs.3,150/-

( Rs.9,450/-)

Rs.9,450 x 12 x 16 =Rs.18,14,400/-

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17. Therefore, as per the judgment of the Hon'ble Apex

Court in the case of Magma General Insurance Company

Ltd., vs. Nanu Ram Alias Chuhru Ram and Others reported

in (2018) 18 SCC 130 and Pranay Sethi's case, claimants

are entitled to Rs.44,000/- each under the head 'loss of

consortium', with 20% escalation(10% once in three years).

Accordingly, Rs.2,40,000/-(Rs.48,000 x 5) needs to be

awarded under the head 'loss of consortium' as against

Rs.25,000/- awarded by the Tribunal.

18. Further, a compensation of Rs.15,000/- each has to

be awarded under the head 'loss of estate and 'funeral and

transportation expenses', respectively with 20% escalation.

Therefore, a sum of Rs.36,000/-(Rs.18,000 x2) is awarded

towards 'loss of estate' and funeral and transportation' as

against Rs.30,000/- and Rs.50,000/- awarded by the tribunal.

19. Thus, in all, the claimants are entitled for

compensation as under:-

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                HEADS                                        Rs.
Loss of dependency                                             18,14,400
Loss of consortium                                              2,40,000
Loss of estate                                                    18,000
Funeral and transportation expenses                               18,000
                TOTAL                                         20,90,400
 Less: Compensation awarded by the                            20,79,400
                Tribunal                              (80%=Rs.16,63,200)
     Enhanced compensation                                   4,27,200/-


       Hence,    MFA    No.3951/2019          filed    by   the   claimants