Karnataka High Court
Tammanna vs The Managing Director on 22 November, 2018
Bench: L.Narayana Swamy, P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2018
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE P.B.BAJANTHRI
M.F.A.No.2160 OF 2016 C/W M.F.A.NO.1795 OF 2016
(MV)
IN MFA No.2160/2016:
BETWEEN:
1. Tammanna,
S/o. Rangaiah,
Aged about 53 years,
2. Rathanamma,
W/o. Tammanna,
Aged about 41 years,
3. Krishna,
S/o. Tammanna,
Aged about 20 years,
All are R/o C/o. No.36,
"B" Cross, 58th Bus Stop,
Byatarayanapura,
Mysore Road
Bengaluru - 26. ..Appellants
(By Sri. S.B.Halli, Advocate)
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AND :
The Managing Director,
B.M.T.C. Depot,
Bengaluru Central Office,
K.H.Road, Shanthinagar,
Bengaluru-27. ...Respondent
(By Sri. D. Vijaya Kumar, Advocate)
This MFA is filed under Section 173(1) of the MV
Act against the judgment and award dated 19.12.2015
passed in MVC No.2001/2015 on the file of the XIII
Additional Small Cause Judge & Member, MACT,
Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
IN MFA No.1795/2016
BETWEEN:
The Managing Director,
Bangalore Metropolitan
Transport Corporation,
Central Office,
K.H.Road,
Shanthinagar,
Bengaluru - 560 027. ..Appellant
(By Sri. D. Vijaya Kumar, Advocate)
AND:
1. Sri. Tammanna,
S/o. Sri. Rangaiah,
Aged about 53 years,
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2. Smt. Rathnamma,
W/o. Sri. Tammanna,
Aged about 41 years,
3. Krishna,
S/o. Sri. Tammanna
Aged about 20 years,
All are r/at C/o.No.36,
'B' Cross, 58th Bus Stop,
Bytrayanapura, Mysore Road,
Bengaluru - 560 026. ... Respondents
(By Sri. S.B. Halli, Advocate)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 19.12.2015
passed in MVC No.2001/2015 on the file of the XIII
Additional Small Cause Judge & Member, MACT,
Bengaluru, awarding the compensation of
Rs.21,24,000/- with interest at 9% p.a from the date of
petition till the realization.
These M.F.As. coming on for Admission this day,
NARAYANA SWAMY J., delivered the following:
:J U D G M E N T:
Claimants are the petitioners in MVC No.2001/2015 on the file of Motor Accident Claims Tribunal and Court of Small Causes, Bengaluru. According to them, on 12.05.2015 the deceased was proceeding as a pillion rider on the motor vehicle bearing registration No.KA-41-U-3453 and the -4- motorcycle was driven cautiously on the left side of the road. At that time, the offending vehicle i.e., BMTC Bus bearing registration No.KA-01-FA-2360 came from back side in a rash and negligent manner and caused the accident resulting in death of pillion rider. Claimants are parents and brother of the deceased. In the claim petition it is stated that the deceased was working as a mechanic in M/s.Om Bikes, Mysuru Road and was earning Rs.10,000/- per month. The complaint made to the police was registered in Crime No.47/2015 and after having investigated the matter, charge sheet was filed for the offences punishable under Sections 279, 337 & 304(A) of the Indian Penal Code. The Tribunal, after considering the case of both the parties, has awarded compensation of Rs.21,24,000/-.
2. Being aggrieved by the judgment and award MFA No.2160 of 2015 is filed by the claimant-appellants for enhancement of compensation; and MFA No.1795/2016 is filed by the Corporation for reduction in compensation. We feel it proper to first deal with the -5- case of the appellant in MFA No.1795 of 2016, i.e. the appeal filed by Bangalore Mahanagar Transport Corporation (for short hereinafter referred to as 'the BMTC').
3. The grounds taken by the BMTC are that there is negligence on the part of the rider of the motorcycle himself and hence the Tribunal should have taken contributory negligence on the part of rider of two wheeler which the BMTC has proved their case by examining RW1. It is further case of the BMTC that as per the evidence of RW1, the rider of motorcycle came in a rash and negligent manner to overtake the BMTC bus and the left portion of the handle of the motor cycle touched right portion of the BMTC bus, as a result the pillion rider lost control and fell down from the bike and consequently died in the accident. When that is the evidence of RW1 the Tribunal should have taken note of the negligence on the part of the pillion rider. -6-
4. We have perused Ex.P4-IMV report which discloses that damage to left hand side of the head lamp and the left side of the crash guard of two-wheeler is bent. Therefore, IMV report itself demonstrates that there is negligence on the part of the rider of the said motor cycle. Under these circumstances, negligence to the extent of 50% should have been fastened on the rider of the motor cycle.
5. The second ground is regarding the quantum of the compensation. As per the evidence of PW1 who is the father of the deceased and also Ex.P10 employee's salary for the months of October, 2014 to March, 2015 in total he had drawn salary of Rs.38,954/- and if the same is divided for each month, then he would get about Rs.6,000/- per month. The Tribunal assessed the income at Rs.9,000/- which is on higher side and to that extent it is submitted that the Tribunal did not take correct income of the deceased and the award of the compensation has to be reduced.
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6. Since the deceased is a bachelor, in view of the decision of the Hon'ble Supreme Court in the case of Smt. Sarala Verma Vs. Delhi Transport Corporation and Others reported in AIR (2009)6 SCC 121, the deduction should be given at 50%, and contrary to the same, the Tribunal has deducted one-third. The learned counsel further submits that as regards future prospects the Tribunal has taken 50% which is also contrary to the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd v. Pranay Sethi reported in 2017 SCC Online SC 1270. The learned counsel drew our attention to paragraph 59 of the said judgment.
7. Nextly, the learned counsel submits that normally, the Courts would award interest at 6%, but in the instant case it has been awarded at 9%. He also submits that contrary to the judgment of Hon'ble Supreme Court in the case of PRANAY SETHI (supra) higher compensation is awarded under conventional heads.
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8. MFA No.2160 of 2016 is filed by the claimants seeking enhancement of compensation. The ground taken is to assess the income of the deceased at Rs.10,000/- per month relying upon the evidence of PW1.
9. We have heard the learned counsel appearing for the parties.
10. The accident is not in dispute. Under the circumstance, the first ground that has been taken by the BMTC is in respect of negligence. The learned counsel referred the evidence of RW1, who is the driver of the BMTC bus and also referred to IMV report-Ex.P4 which discloses that negligence is on the part of rider of the vehicle as he came in high speed in a rash and negligent manner, and as a result, the head lamp and the left-side of the crash guard of the two-wheeler was damaged. As such, the rider of the said vehicle has to concentrate on both sides that too while riding in City -9- having heavy traffic, and the driver should also look forward on coming vehicles.
11. It is not open to consider the Evidence of RW1, more particularly when the driver of the BMTC bus is charge-sheeted for the said offence. As it is referred earlier, after investigating into the matter the charge sheet is filed against driver of the BMTC bus but not against the rider of the said motor cycle. On this ground the appellant-BMTC failed to prove the negligence on the deceased and the said ground has to be rejected.
12. As regards the income of the deceased is concerned, the learned counsel relied upon Ex.P.10- the salary details of the deceased for the months of October, 2014 to March, 2015 and it is submitted that when the deceased salary perused from month to month an average has to be taken. But the same is to be rejected for which we have seen Ex.P10 which is referred to therein that salary is paid on the basis of number of
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working days and the same gets varied based on the number of days worked. In this case the monthly income depending upon the actual number of days worked, and on that basis it is seen that for the month of April 2014 he has been paid Rs.2,681/- and similarly for the month of June he has been paid Rs.8,974/- for which he has worked and similarly for the month of August 2015 he has been paid Rs.7,391/- it shows that income does depend on number of days working. Under these circumstances since the Motor Vehicles Act is a benevolent Act for the benefit of the accident victim or the legal representative of the victim, the monthly income of the deceased has to be assessed. Considering the same and the Tribunal has assessed the income of the deceased at Rs.9,000/- per month, based on the, circumstances, the same is sound and proper and there is no error committed by the Tribunal. In that view of the matter, the ground taken by the learned counsel for the appellant that average income is to be taken and on
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that basis income assessed is on higher side is also rejected.
13. The third ground with reference to deduction at 50% towards personal expenses is concerned, it is seen that the deceased is a bachelor for which the judgment of SARLA VERMA (supra) is to be applied wherein it has been held that "ordinarily bachelor tends to spend 50% for the personal expenses". The word "ordinarily" should not be misunderstood that it is always that the bachelor spends 50% towards personal expenditure. The same depends upon person to person and on the family condition of the deceased. In the instant case, it is evidence of PW1-father of the deceased who has deposed that entire family was depending on the income of the deceased only and claimant no.3 is the brother of the deceased who is dumb and deaf. He was also depending upon the deceased. Under these circumstances judgment in the case of SARLA VERMA (supra) wherein the word employed "ordinarily" shows that 50% has to be
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deducted subject to facts and evidence to that effect. In the case on hand, the Tribunal has rightly assessed the evidence and deduction of one-third is sound and hence the submission of the counsel for BMTC in that regard is rejected.
14. The last submission is with regard to awarding compensation under conventional heads. As per the judgment of SARLA VERMA (supra), if the deceased is a bachelor, under the said head Rs.70,000/- compensation is to be awarded and in the instant case it has been awarded at Rs.1,80,000/- which is on the higher side and is contrary to the said judgment. On this ground the appellant BMTC has to succeed and is accordingly answered. In the appeal for enhancement for compensation the income assessed is Rs.10,000/. Though it is stated in the claim petition but no cogent evidence is produced contrary to documents. The Tribunal has taken time to gather the income out of Exs.P.10 and P11 and arrived at a conclusion to take the income at Rs.9,000/- per month.
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The same is and sound and proper, it is to be observed that every trivial error committed by the Tribunal is not a ground to interfere in the appeal stage. The error should be fundamental in nature. In this case there is no such fundamental error said to have been committed by the Tribunal except assessing higher income on the conventional heads. Accordingly, the compensation awarded under the conventional heads at Rs.1,80,000/- has to be reduced to Rs.70,000/-. As regards future prospects, the Tribunal has taken it 50%. But, as per the judgment of SARLA VERMA (supra) it should be at 40%. The same is taken. Accordingly the calculation would be Rs.3600X2/3X12X18=Rs.5,18,400/- same is awarded under the head future prospects as against Rs.6,48,000/- awarded by the Tribunal. The interest awarded by the Tribunal at the rate 9% is reduced to 6% per annum.
With these observations the appeal by the insurer is allowed in part and appeal filed by the claimants is
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disposed of. Impugned judgment and award are modified accordingly.
Amount in deposit be transmitted to the Tribunal forthwith. BMTC to satisfy the award within a period of three weeks.
Sd/-
JUDGE Sd/-
JUDGE UN