Karnataka High Court
The Managing Director vs Sri N C Abdul Rehaman on 23 August, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:30163
MFA No. 6910 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6910 OF 2018 (MV)
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
K.H.ROAD, SHANTHINAGAR
BANGALORE-27. ...APPELLANT
(BY SRI. D VIJAYAKUMAR., ADVOCATE)
AND:
1. SRI N C ABDUL REHAMAN
S/O N.C. AHMED SAHEB
AGED ABOUT 56 YEARS
R/AT NO.2/41/10B,
AREHOLOE CROSS
Digitally signed by KIRIMANJESHWAR,
DHANALAKSHMI KUNDAPUR TALUK
MURTHY
UDUPI DISTRICT-576201.
Location: High
Court of
Karnataka 2. MRS. BIFATHIMA
W/O N.C. ABDUL REHAMAN
AGED ABOUT 46 YEARS
R/AT NO.2/41/10B,
AREHOLOE CROSS
KIRIMANJESHWAR,
KUNDAPUR TALUK
UDUPI DISTRICT-576201.
3. ZEENATH
D/O N.C. ABDUL REHAMAN
AGED ABOUT 19 YEARS
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NC: 2023:KHC:30163
MFA No. 6910 of 2018
R/AT NO.2/41/10B,
AREHOLOE CROSS
KIRIMANJESHWAR,
KUNDAPUR TALUK
UDUPI DISTRICT-576201. ...RESPONDENTS
(BY SRI K.T.GURUDEVA PRASAD, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:08.06.2018
PASSED IN MVC NO.4635/2017 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE & XXIV ACMM, MEMBER,
MACT, BENGALURU [SCCH-20], AWARDING COMPENSATION
OF RS.13,91,000/- WITH INTEREST @ 9% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the Bangalore Metropolitan Transport Corporation (hereinafter referred to as 'the Corporation' for short) being aggrieved by the judgment dated 08.06.2018 passed by the Motor Accident Claims Tribunal and V Addl. Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH-20) (hereinafter referred to as 'the Tribunal' for short) in MVC No.4635/2017. -3-
NC: 2023:KHC:30163 MFA No. 6910 of 2018
2. Facts giving rise to the filing of the appeal briefly stated are that on 27.07.2017 at about 11.45 a.m. the deceased Mohammed Kamuludden was proceeding in the motorcycle bearing registration No.KA-53/EM-2305 on ITPL main road, near ITPL main gate. At that time, one BMTC bus bearing registration No.KA-01/FA-1849 being driven by its driver at a high speed and in a rash and negligent manner, dashed to 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 on the ground that the deceased was working as a sales man at Textile and was earning Rs.20,000/- p.m. and seeking compensation.
4. On service of summons, the respondent appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the accident occurred due to the rash and negligent riding of the deceased himself. It was -4- NC: 2023:KHC:30163 MFA No. 6910 of 2018 further pleaded that the compensation claimed 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.P16. On behalf of respondents, one witness was examined as RW1 and got exhibited documents namely Ex.R1 and Ex.R2. 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.13,91,000/- along with interest at the rate of 9% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, the Corporation has filed this appeal.
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NC: 2023:KHC:30163 MFA No. 6910 of 2018
6. The learned counsel for the Corporation has raised the following contentions:
(i) Firstly, the accident occurred due to the negligence of the deceased himself. When he was trying to overtake the bus, he dashed to the hind portion of the bus, fell down and suffered severe injuries.
(ii) Secondly, it is very clear from the evidence of the parties, police records and also IMV report that the right side hind portion of the bus has been damaged and front portion of the motorcycle has been damaged. Therefore, it is evident that the deceased dashed against the hind portion of the bus.
(iii) Thirdly, the Corporation has examined the driver of the bus as RW1. He has deposed that he was driving the bus on the left side of the road and the rider of the motorcycle tried to overtake the bus from right side and dashed the hind portion of the bus. The Tribunal has erred in holding that the driver of the bus is negligent in causing the accident.-6-
NC: 2023:KHC:30163 MFA No. 6910 of 2018
(iv) Fourthly, it is very clear from the sketch - Ex.P4 that the accident occurred in the middle of the road. There is no space on the right side of the bus to overtake. The rider of the motorcycle has come in high speed and tried to overtake and dashed to the hind portion of the right side of the bus, suffered injuries and succumbed to the injuries. The same is evident from Exs. P4, P7 and evidence of PW1 that the accident occurred due to the negligence of the deceased himself.
(v) Fifthly, the deceased was not wearing helmet and that is the cause for his death. The Tribunal has erred in holding that the driver of the bus alone is negligent in causing the accident.
(vi) Sixthly, 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 -7- NC: 2023:KHC:30163 MFA No. 6910 of 2018 by the Tribunal at 9% p.a. is on the higher side. Hence, he sought for allowing of the appeal.
7. Per contra, the learned counsel for the claimants has raised the following contentions:
(i) Firstly, the specific case of the claimants is that the driver of the bus tried to overtake the motorcycle from left side. After overtaking, he has come to extreme right side, due to which, the motorcycle dashed to the right side hind portion of the bus. The same is clear from the complaint that the driver of the bus is negligent in causing the accident.
(ii) Secondly, as per Ex.P7 - IMV report, it is very clear that the hind portion of the right side of the bus has been damaged and left side body of the motorcycle has been damaged. To prove the case, claimants have examined claimant No.1 as PW1. He has categorically stated that the driver of the bus is negligent in causing the accident. Even the police records speaks that the driver of the bus is negligent in causing the accident. To disprove -8- NC: 2023:KHC:30163 MFA No. 6910 of 2018 the same, except examining the driver of the bus, no other person has been examined. The Tribunal, after considering the materials available on record, has rightly held that the driver of the bus is negligent in causing the accident.
(iii) Thirdly, the quantum of compensation awarded by the Tribunal is on the lower side. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the judgment and award and the certified copies of the records which are made available by learned counsel for the parties.
9. The case of the claimants is that on 27.07.2017 at about 11.45 a.m. the deceased Mohammed Kamuludden was proceeding in the motorcycle bearing registration No.KA-53/EM-2305 on ITPL main road, near ITPL main gate. At that time, one BMTC bus bearing registration No.KA-01/FA-1849 came in the same direction in a rash and negligent manner and without following the -9- NC: 2023:KHC:30163 MFA No. 6910 of 2018 traffic rules and regulations tried to overtake from the left side of the motorcycle and came extreme right side and dashed to the hind portion of the bus. Due to the impact, the deceased fell down and succumbed to the injuries.
10. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble Apex Court has held as hereinbelow:
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NC: 2023:KHC:30163 MFA No. 6910 of 2018 "25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
11. To prove their case, claimants have examined claimant No.1 as PW1 and produced documents as Exs.P1 to P14. On the other hand, the respondents have examined the driver of the bus as RW1 and produced documents as Ex.R1 and Ex.R2. Claimant No.1 has reiterated the pleadings in the claim petition. Ex.P1 is the FIR, Ex.P2 is the complaint and these documents
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NC: 2023:KHC:30163 MFA No. 6910 of 2018 corroborate the case of the claimants. Immediately after the accident, police have registered FIR against the driver of the bus. I have gone through Ex.P7 - IMV report. The same is extracted below:
"1) KA-01/FA-1849 (Bus):
(i) Rear right side tail lamp assembly damaged.
(ii) Damages found on rear right side body.
(iii) Rear side bumper damaged.
2) KA-53/EM-2305 (Motorcycle):
(i) Front wheel mud guard damaged.
(ii) Steering handle bend at rear side
(iii) Crash guard damaged.
(iv) Scratches found on petrol tank and silencer.
(v) Left side body cover damaged."
From the above document it is very clear that the right side hind portion of the bus has been damaged and front side left portion of the body of the motorcycle has been damaged. I have also gone through Ex.P4 - sketch. It is very clear from Ex.P1 - FIR, Ex.P2 - complaint, Ex.P4 -
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NC: 2023:KHC:30163 MFA No. 6910 of 2018 sketch and Ex.P7 - IMV report that both the bus as well as the motorcycle were proceeding in the same direction in ITPL main road. The driver of the bus tried to overtake the motorcycle from left side as mentioned in the complaint. By looking into Ex.P7 - IMV report, Ex.P4 - sketch and Ex.P2 - complaint it is very clear that the bus came extreme right side after overtaking from the left side of the motorcycle. At that time the motorcycle which is moving right side of the bus dashed to the right side hind portion of the bus and the rider of the motorcycle fell down, suffered injuries and succumbed to the injuries. It is very clear that the driver of the bus was rash and negligent in driving the bus. To disprove the case of the claimants, the respondent has examined the driver of the bus as RW1. He has deposed that the deceased was riding the vehicle without licence and without wearing helmet and he was riding along with the pillion rider in a high speed and tried to overtake the bus from right side and there was no space and he dashed against the backside right side corner of the bus and fell down. By considering
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NC: 2023:KHC:30163 MFA No. 6910 of 2018 the evidence of PW1 and RW1 and Exs. P1 - FIR, P2 - complaint, P3 - mahazar, P4 - sketch and P7 - IMV report, it is seen that the driver of the bus is negligent in causing the accident. The Tribunal rightly answered issue No.1 in the affirmative and there is no error in the judgment and award passed by the Tribunal. Hence, I decline to interfere with the findings recorded by the Tribunal regarding negligence as well as quantum of compensation.
12. In respect of interest is concerned, in view of a Division Bench judgment of this Court, in the case of JOYEETA BOSE (supra) the rate of interest awarded by the Tribunal at 9% p.a. is scalled down to 6% p.a.
13. Accordingly, I pass the following order:
(i) The appeal is allowed in part.
(ii) In respect of the negligence, liability and quantum of compensation is concerned, the award passed by the Tribunal is confirmed.
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NC: 2023:KHC:30163 MFA No. 6910 of 2018
(iii) In respect of rate of interest is concerned, the same is scalled down from 9% p.a. to 6% p.a.
(iv) The amount in deposit is ordered to be transferred to the Tribunal, forthwith.
Sd/-
JUDGE CM List No.: 1 Sl No.: 45