Bangalore District Court
Mrs. Rojida Khatun vs The Managing Director on 10 December, 2015
1 SCCH-1
MVC-5423/14
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 10th DAY OF DECEMBER 2015
PRESENT : SRI H.P.SANDESH, B.A.L, ., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.5423/2014
Petitioners: 1. Mrs. Rojida Khatun,
W/o. Late Mohammed Salim @ Md.
Salim Nadaf,
Aged about 23 years
2. Master Mohammed Salim Nadaf,
S/o. Late Mohammed Salim @ Md.
Salim Nadaf,
Aged about 04 years
3. Mrs. Masomat Zakila Khatoon,
W/o. Late Adhanu Nadaf
Aged about 59 years
All are R/at
No.497, Dip, Thana Na-235,
Town/Village - Dip,
Anchal - Lakhnaur
District - Madhubani,
Bihar
(Since 2nd Petitioner is minor
represented by petitioner No.1,
natural guardian)
2 SCCH-1
MVC-5423/14
(By Sri. P.R, Advocate)
-Vs-
Respondents: The Managing Director,
Bangalore Metropolitan Transport
Corporation,
K.H.Road,
Bangalore
(By Sri M.N.Krishna, Advocate)
******
JUDGMENT
This petition is filed u/s.166 of M.V.Act 1989 seeking compensation of Rs.30,00,000/- for the death of Mohammed Salim @ Md. Salim Nadaf husband of first petitioner, father of second petitioner, son of petitioner No.3.
2. The brief facts of the case are :
It is the case of the petitioners that on 26.09.2014 at about 11.10 a.m. when the deceased was crossing Hosur road near Konapana Agrahara bus stop, at that time the driver of a B.M.T.C bus bearing No. KA-01-F-
3 SCCH-1 MVC-5423/14 8803 drove the same in a rash and negligent manner and dashed against the deceased, due to the impact she fell down and wheel of the bus ran on the head of the deceased and he died on the spot.
3. It is further contended that, immediately after the accident the body of the deceased was shifted to Victoria hospital wherein Post Mortem was conducted and the body of the deceased was handed over to the petitioners to perform his last rights. They have spent Rs.1,00,000/- for funeral and obsequies ceremonies.
4. It is the contention of the petitioners that, as on the date of the accident the deceased was hale and healthy and was aged about 25 years and was working as coolie and earning Rs.7,000 p.m. and he has left his mother and wife and one child and entire family used to depend on the income of the deceased. The accident has 4 SCCH-1 MVC-5423/14 occurred due to the negligence on the part of the driver of the bus bearing Reg.No. KA-01-F-8803.
5. The police have filed the Charge sheet against the driver of the B.M.T.C. and hence, the respondent is solely responsible to pay the compensation as claimed in the petition.
6. In pursuance of this claim petition, this Court issued notice against the respondent. Respondent appeared before the Court and has filed objection statement denying the petition averments. He further contended that the driver of the bus bearing Reg.No. KA- 01-F-8803 was in its schedule trip from Electronic city TCS to Shanthi Nagar and when the said bus was proceeding near Koonapana Agrahara traffic junction at about 11.55 a.m., at that point of time deceased Mohammed Salem got down from Tata ACE goods vehicle bearing Reg.No. KA-51-B-4511 and suddenly petitioner 5 SCCH-1 MVC-5423/14 attempted to cross the road from left side of the road without observing any traffic and came and dashed the front right portion of the BMTC bus and fell down and sustained injuries and the deceased succumbed to the injuries. The deceased himself is responsible for the accident. The age, occupation, income, mode of accident are all denied. The petitioners have to prove all the averments made in the petition. Further, the compensation claimed by the petitioner is excessive and exorbitant. Hence, prays to dismiss the petition.
7. In view of contentions raised by both the parties, the following issues were framed:-
1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 26.09.2014 at about 11.40 a.m. near Konapana Agrahara Bus stop, Hosur Road, Bangalore within the jurisdiction of Electronic City Traffic Police Station on account of rash and negligent driving of the BMTC bus bearing registration No. KA-01-F-8803 by its driver?
6 SCCH-1 MVC-5423/14
2) Whether the respondent proves that the accident occurred on account of negligent act of the deceased?
3) Whether the petitioners are entitled for compensation? If so, how much and from whom?
4) What Order?
8. In order to prove their claim, the first petitioner is examined as PW-1 and got marked the documents Ex.P.1 to 15. Also examined one witness as PW.2. On the other hand, respondent has examined one witness as RW-1 and he got marked the document Ex.R.1.
9. The respondent counsel has filed written arguments. Petitioner counsel did not turn up and taken as no arguments.
10. Having gone through the written arguments of respondent counsel and based on the pleadings and the 7 SCCH-1 MVC-5423/14 evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 ... In the affirmative
2. Issue No.2 ... In the negative
3. Issue No.3 ... Partly in the affirmative
4. Issue No.4 ... As per final order for the following:
REASONS
11. Issue No.1 and 2 : These two issues are inter-
connected to each other, hence, they are taken up together for discussion in order to avoid repetitions.
12. It is the contention of the petitioners that the accident was occurred due to the rash and negligence of the driver of the bus bearing No. KA-01-F-8803 and on the other hand, the respondent has taken the contention that the accident occurred due to the negligence on the part of the deceased himself.
8 SCCH-1 MVC-5423/14
13. The petitioners in order to prove their case, have examined the first petitioner as PW.1 who is the wife of the deceased. The PW.1 has reiterated the averments of the petition regarding the negligence and relied upon the documents like FIR, Charge sheet, Sketch, Mahazar and IMV report which are marked as Ex.P.1 to 5.
14. The PW.1 was subjected to cross-examination. In the cross examination it is elicited that, she came to know the accident through the owner of her husband and she did not see the place of accident. It is suggested that, the accident was occurred due to negligence on the part of her husband and not on the negligence on the part of the driver of the bus and the same was denied. It is suggested that, when the Tata Ace vehicle was stopped in the middle of the road at that time her husband alighted from the Tata ace vehicle and suddenly tried to cross the road to purchase things from the shop and at 9 SCCH-1 MVC-5423/14 that time the accident was occurred and the same was denied.
15. Petitioners have also examined one more witness as PW.2 and in his evidence in the form of affidavit he says that, on 26.09.2014 at about 11.40 a.m. himself and his friend Mohammed Saleem, carrying house hold items in the vehicle Tata Ace bearing Reg.No. KA-51-B-4511 from Huskur gate towards Hosa Road and when they reached near Konappana Agrahara Bus stop, Hosur-Bengaluru Main road, he noticed red signal and hence he stopped the vehicle and was waiting for the green signal. The deceased Mohammed Saleem got down from the vehicle and went to the road side shop to get some stuff and while he was crossing the said road, at that time a vehicle BMTC bus bearing Reg.No. KA-01-F- 8803 which came from the same direction from Electronic City towards Bengalur side driver by its driver in a high speed with rash and negligent manner without 10 SCCH-1 MVC-5423/14 seeing the red signal has hit the deceased and he fell down and at that time the bus ran over on his head and he died on the spot.
16. The PW.2 was subjected to cross examination and in the cross examination it is elicited that, he had stopped his vehicle on the left side of the road and there was some space on the left side of his vehicle and bus driver came in that space in a high speed and dashed against him. The right portion of the bus has touched the deceased and right wheel passed over on his body. The accident was occurred when he alighted from his vehicle and while proceeding. It is suggested that, the said place is not for pedestrian crossing and the same was denied. It is suggested that, he is falsely deposing before the court that there is a provision to cross the road in the said spot and the accident was occurred due to the negligence on the part of the deceased himself and the same was denied. It is suggested that, the accident 11 SCCH-1 MVC-5423/14 was occurred due to his negligence and not on the driver of the BMTC and the same was denied.
17. On the other hand, the respondent has examined the driver of the bus as RW-1 and in his affidavit he says that, he was proceeding in the route No.600KA/3 from Electronic city TCS to Shanthinagar and when he was proceeding near Koonapana Agrahara traffic junction around 11.55 a.m. the deceased who got down from the Tata Ace good vehicle, suddenly tried to cross the main road without observing that the bus was coming on the said road. He attempted to cross the road from left side of the road and came and dashed the front right portion of the BMTC bus, hence he fell down and sustained alleged injuries. The accident was occurred due to the negligence on the part of the deceased himself and not on the part of the driver of the bus. 12 SCCH-1 MVC-5423/14
18. The RW.1 was subjected to cross-examination. In the cross-examination he admits that, there is a signal after the bus stop. It is not suggested that, the deceased by observing the signal in the place of accident after alighting from the TATA Ace he was crossing the road and at that time inspite of signal, he has driven the vehicle in a rash and negligent manner and dashed against him, as a result the accident was taken place due to his negligence and the same was denied. He admits that, petitioner died at the spot. He says he has given the complaint to police and he has not produced the copy of the complaint before the court. He admits that, their department also initiated departmental enquiry and yet to pass the order. Also admits that, police have registered the case and after investigation they have filed the chargesheet against him. He admits that, the criminal court has acquitted him for lack of material evidence. It is suggested that, this accident was occurred 13 SCCH-1 MVC-5423/14 due to his negligence and in ordered to come out from the clutches of the punishment he is giving false evidence before the court and the same was denied.
19. Before appreciating the oral and documentary evidence, I would like to make a mention the citations quoted by the petitioner counsel.
The counsel for the petitioner has relied upon the judgment reported in AIR 1980 SC 1354 (N.K.V.Bros (P) Ltd., Vs.M.Karumai Ammal and others). In this Judgment Hon'ble Apex Court held that, "Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes."
14 SCCH-1 MVC-5423/14 The petitioner counsel also relied upon the judgment reported in 2011 ACJ 990 (H.S.Swarnalatha and others Vs. Vice Chairman and Managing Director, Karnataka State Road Transport Corporation). In this judgment Hon'ble Karnataka High Court held that, "Criminal tribunal - Collision between a bus and tractor - trailer and a passenger in bus sustained fatal injuries - Driver of bus was acquitted in criminal trial - Degree of proof before criminal court is beyond reasonable doubt while degree of proof before Tribunal is preponderance of probabilities- Whether findings of criminal court are binding on the Tribunal - held-no; Tribunal has to independently assess the evidence placed before it."
In keeping the principles laid down in the judgments referred supra and also the contentions urged by petitioners counsel and also written arguments filed by the respondent counsel, this court has to appreciate the facts and circumstances of the case. 15 SCCH-1 MVC-5423/14
20. The respondent in para 2 of his written arguments has reiterated the evidence of RW.1 and contended that, the deceased himself suddenly tried to cross the road and at that time the accident was occurred.
21. Now let me appreciate the evidence available before the court. It is admitted that PW.1 was not an eye witness and the evidence of PW.1 is not material and in the evidence of PW.2 who is the driver of the Tata Ace vehicle, he reiterated that, the accident was occurred due to the negligence on the part of the driver of the KSRTC who came in a high speed and in a rash and negligent manner without seeing the red signal dashed against the deceased. In the cross examination of PW.2 except the suggestion that, there is no any provision to cross the road in the said spot and the accident was occurred due to the negligence on the part of the deceased himself, nothing is elicited from the mouth of PW.2 with regard to 16 SCCH-1 MVC-5423/14 the negligence on the part of the deceased. The PW.2 has explained how the accident was occurred.
22. Also it is important to note that, in the evidence of RW.2 he claims that, the deceased himself suddenly attempted to cross the road from the left side of the road without observing traffic rules and regulations, hence the accident was occurred.
23. It is important to note that in the cross examination RW.1 categorically admits that, there is a signal after the bus stop. Also he admits that, the injured died at the spot. Though he claims that he has given the complaint to the police, he has not produced the copy of the complaint before the court. Also admits that, department has initiated departmental enquiry against him. Also admits that, police have filed Charge Sheet against him. However he claims that, the criminal court has acquitted him in terms of Ex.R1. Further he 17 SCCH-1 MVC-5423/14 admits that, the criminal court acquitted him on account of lack of material against him.
24. It is also important to note that, the Apex court also held in the judgment referred supra that, the court has to assess the evidence independently. Also the Hon'ble High Court has reiterated the same in the judgment referred supra. Hence this court has to appreciate the material on record.
25. On perusal of Ex.P1 there is a clear allegation against the driver of the bus and the said complaint was given by the PW.2 who is an eye witness to the said accident.
26. On perusal of Ex.P3 Sketch it clearly discloses that, near the signal the vehicle was stopped. It is the evidence of PW.2 that, he was waiting for green signal and there was a red signal and the RW.1 has not disputed the very fact that, there was a signal near the 18 SCCH-1 MVC-5423/14 accident spot. It is not his case that, there was no signal or there was no any red signal at the spot and only his contention is that, the deceased tried to suddenly cross the road. The sketch clearly depicts that, the driver who was in the middle of the road came to the very extreme side of the road where he found the gap and PW.2 also clearly says that, there was a gap on the left side of the vehicle and when there is signal the driver of the bus ought to have driven the bus in a slow manner, instead of that, he took the bus towards extreme side of the road and dashed against the person who alighted from the vehicle and coming on the left side of the road. If the accident was occurred not in the signal, then the very contention of the RW.1 would have been accepted. The respondent has not disputed the Sketch which has been marked as Ex.P3.
27. For having taken note of both oral and documentary evidence available before the court, I am of 19 SCCH-1 MVC-5423/14 the opinion that, the accident was taken place near the signal. It is clear in the evidence of PW.2 that, he was waiting for green signal and there is no dispute regarding the deceased was alighted from the vehicle and was proceeding towards the left side of the road and the driver of bus ought to have driven the bus in a cautious manner that too when there is signal. Hence I have found fault with the driver of the bus, since he drove the bus in a rash and negligent manner the accident has occurred. In order to consider the contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )-No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied - compensation awarded by this Tribunal just and proper. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative. 20 SCCH-1 MVC-5423/14
28. Issue No.3: It is the claim of the petitioner that first petitioner is the wife of the deceased and second petitioner is the minor son of the deceased and petitioner No.3 is the mother of the deceased. It is contended that as on the date of the accident the deceased was working as coolie and was earning Rs.7,000/-p.m. and he used to contribute his entire income towards the family. The respondent counsel has filed written arguments before the Court contending that the petitioners have failed to prove that the deceased was working as coolie and earning Rs.7,000/- p.m. and have not produced any supporting documents to show that deceased was working in M/s. Sharma Relocation's and Ware housing company and no independent witness has been examined and they have not been proved by the petitioners.
29. In the cross examination PW.1 admits that, her husband was doing loading work and was working with one Bavaneshan. She admits that, her husband 21 SCCH-1 MVC-5423/14 was getting Rs.700/- per day. Further she admits that, her husband was sending an amount of Rs.7,000/- p.m. to her and she does not know how much he was earning in Bangalore. The petitioners in order to prove their claim, they have not produced any documentary proof and also petitioner did not chose to examine the Employer before the Court. In the absence of any proof, this Court has taken the income of the deceased as Rs.7,000/-p.m. In view of the principles laid down in the judgment reported in 2013 ACJ 1403 (Rajesh Vs. Rajbir Singh), the Apex Court held that even if a person is self employed, loss of future prospects has to be taken into consideration. The income of the deceased is taken as Rs.7,000/- per month, 50% of which works out to Rs.3,500/- and thus the total works out to Rs.10,500/-. p.m.
30. The petitioners have produced the PAN card of the deceased which is marked as Ex.P11 and it discloses 22 SCCH-1 MVC-5423/14 the deceased date of birth as 31.12.1982 and hence he was aged 32 years at the time of accident. Also petitioners have produced Election ID card of the deceased in which the birth year is mentioned as 1982 and hence it also confirms the deceased was aged 32 years at the time of the accident. In the cross examination of PW.1 she says, her husband was aged 30 years. She also admits that, the age mentioned in the PAN card is correct. Hence by taking note of the age mentioned in the PAN card and Election ID card and the acceptance of PW.1 that, the PAN card is correct, this Court has to accept the age of the deceased as 32 years and in between the age group of 31-35 years the appropriate multiplier is 16.
31. There are three dependants. The petitioners have produced notarized copy of Election ID card and Ration card which are marked as Ex.P14 and 15 to prove the relationship with the deceased. Hence, 1/3rd of the 23 SCCH-1 MVC-5423/14 income of the deceased has to be deducted for personal expenses i.e., Rs.3,500/-(10,500/3). It comes to Rs.7,000/- (10,500-3,500). Thus, the annual loss of dependency works out to Rs.84,000/-(7,000x12), and if we multiply the said amount by the 16 multiplier applicable to the case on hand, it works out to Rs.13,44,000/-,(84,000x16) to which the petitioners are entitled to under the head loss of dependency.
32. The Apex Court, in the case reported in 2013 ACJ 5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal Transport Service) and also in the recent judgment reported in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy) awarded Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and 24 SCCH-1 MVC-5423/14 sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. In this case also, since the deceased has left behind wife, child and mother, I deem it proper to award Rs.1,00,000/- as compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc., and Rs.50,000/- as compensation to the widow of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc., and Rs.10,000/- towards cost incurred on account of funeral and ritual expenses. Petitioners have also produced 3 Airways bills of Rs.5,396/- and flight tickets for having shifted the dead body of the deceased to their home town to perform final rituals.
33. The details of compensation I propose to award are as under:
25 SCCH-1 MVC-5423/14 Sl.No. Head of Compensation Amount/Rs.
1 Loss of dependency 13,44,000.00 2 Compensation to the family 1,00,000-00 members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc. 3 Compensation to the widow 50,000-00 of the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection , social security etc. 4 Cost incurred on account of 10,000-00 funeral and ritual expenses Total 15,04,000-00
34. The petitioners are entitled for total compensation of Rs.15,04,000/-.
35. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to 26 SCCH-1 MVC-5423/14 pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
36. As regards the liability is concerned the respondent being the owner of the BMTC bus bearing No. KA-01-F-8803 is liable to pay compensation to the petitioners. Hence, I answer issue No.3 accordingly.
37. Issue No.4: In view of the discussions made on above points, I proceed to pass the following: -
27 SCCH-1 MVC-5423/14 ORDER The petition filed by the petitioners is allowed in part against the respondent.
The petitioners are entitled for compensation of Rs.15,04,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondent is liable to pay the award amount with interest to the petitioners within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1- Wife - 50%
Petitioner No.2 - Son - 30%
Petitioner No.3 -Mother - 20%
Out of the compensation amount so apportioned in favour of the petitioner No.1, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in the name of petitioner No.1 in any of the nationalized or scheduled bank of her choice for a period of 5 years. Remaining amount with proportionate interest is ordered to be released to her.
As far as petitioners No.2 who is still minor, his portion of compensation amount is ordered to be invested 28 SCCH-1 MVC-5423/14 in high yielding fixed deposit in the name of petitioner No.2 in any of the nationalized or scheduled bank of the choice petitioner No.1, until minor petitioner attain majority, with liberty to the petitioner No.1 to withdraw interest once in 3 months on the deposits for the maintenance of minor petitioners No.2.
Entire compensation amount apportioned in favour of petitioner No.3, who is aged 59 years is ordered to be released to her.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 10th day of December 2015) (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ******** ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Mrs.Rojida Khatun P.W.2 : Abdul Kareem
Witnesses examined on behalf of the respondents :
RW-1 : Ganapathi Rathod
29 SCCH-1
MVC-5423/14
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR
Ex.P-2 : Chargesheet
Ex.P-3 : Sketch
Ex.P-4 : Mahazar
Ex.P-5 : IMV report
Ex.P-6 : Inquest report
Ex.P-7 : PM report
Ex.P-8 : Cause of death certificate
Ex.P-9 : Body handover certificate
Ex.P-10 : Certificate of embalming
Ex.P.11 : Original PAN card
Ex.P.12 : Original Election ID card of the deceased
Ex.P.13 : Notarised copy of my election ID card (original
compared)
Ex.P.14 : Notarised copy of election ID card of deceased
mother (original compared)
Ex.P.15 : Notarised copy of ration card(original compared)
Ex.P.16 : 3 Airway bills
Documents marked on behalf of the respondents:
Ex.R.1 : Certified copy of judgment in CC.1527/2015 (H.P.SANDESH) Member, Prl. M.A.C.T. Bangalore ********** *S.D*