Karnataka High Court
The Managing Director vs Smt Kenchamma on 24 January, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL No.956 OF 2015 (MV)
C/W
MISCELLANEOUS FIRST APPEAL No.3273 OF 2015
IN M.F.A.NO.956/2015
BETWEEN:
The Managing Director,
Bangalore Metropolitan Transport Corporation,
Central Office, K.H.Road,
Shanthinagar,
Bangalore-560027. ...Appellant
(By Sri. Vijayakumar, Advocate)
AND:
1. Smt. Kenchamma
W/o late Komaraiah,
Aged about 45 years,
2. Rukmini
D/o late Komaraiah,
Aged about 20 years,
3. Rakesh
S/o late Komaraiah,
Aged about 15 years,
2
R3 being minor rep. by
his mother and natural guardian
Smt.Kenchamma.
All are R/at Ramenahalli,
Somvarpet, Kodagu-571231. ... Respondents
(By Sri.Kalyan R, Advocate for R1to R3)
This Miscellaneous First Appeal is filed under
Section 173(1) of M.V. Act against the judgment and
award dated 17.11.2014 passed in MVC No.804/2014
on the file of the 23rd Additional Small Causes Judge,
21st ACMM, Court of Small Causes, Bengaluru,
awarding a compensation of Rs.7,42,685/- with interest
@ 6% p.a., from the date of petition till the date of
deposit.
IN M.F.A.NO.3273/2015
BETWEEN:
1. Smt. Kenchamma
W/o late Komaraiah,
Aged about 45 years,
2. Rukmini
D/o late Komaraiah,
Aged about 20 years,
3. Rakesh
S/o late Komaraiah,
Aged about 15 years,
R3 being minor rep. by
his mother and natural guardian
Smt.Kenchamma.
3
All are R/at Ramenahalli,
Somvarpet-571236. ...Appellants
(By Sri.Kalyan R, Advocate)
AND:
The Managing Director,
Bangalore Metropolitan Transport Corporation,
Double Road,
Shanthinagar,
Bangalore-560026. ... Respondent
(By Sri. D.Vijaykuamr, Advocate)
This Miscellaneous First Appeal is filed under
Section 173(1) of M.V. Act against the judgment and
award dated 17.11.2014 passed in MVC No.804/2014
on the file of the 23rd Additional Small Causes Judge,
21st ACMM, Court of Small Causes, MACT, Bengaluru
allowing the claim petition for compensation and
seeking enhancement of compensation.
These appeals coming on for Admission, this day,
the Court delivered the following:
JUDGMENT
Though these appeals are listed for admission, with the consent of both the parties, the matter is taken up for final disposal.
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2. MFA No.956/2015 is filed by the Bangalore Metropolitan Transport Corporation ('BMTC', for short) and MFA No.3273/2015 is filed by the claimants challenging the judgment and award dated 17.11.2014 passed by the MACT, Court of Small Causes (hereinafter referred to as 'the Tribunal' for short), Bengaluru in MVC No.804/2014 whereby the Tribunal has granted compensation of Rs.7,42,685/- with interest @ 6% p.a.
3. Being aggrieved by the same, the BMTC has filed the appeal challenging the liability fastened on it and the claimant has filed the appeal for enhancement of compensation.
4. Brief facts of the case are that on 06.02.2014 at about 7.20 p.m. one Jyothi was getting down from the BMTC Bus bearing Reg.No.KA-01-F-3523 nearby Vijaya Rolling Mill bus stand, Peenya 2nd stage, Peenya Industrial Area, at that time, the driver of the said bus drove the same in a rash and negligent manner with 5 high speed, due to which she lost control and fell down from the bus and sustained grievous injuries on her head and other parts of the body. Immediately, she was shifted to Sanjeevani Hospital but she was succumbed to the injuries on 07.02.2014.
5. The claimants being mother, sister and brother of the deceased filed the claim petition under Section 166 of the Motor Vehicles Act before the MACT, Court of Small Causes Bengaluru in MVC No.804/2014. To establish their case, mother of the deceased got examined herself as P.W.1 and got marked 11 documents as Exs.P1 to P11. On the other hand, the BMTC got examined driver of the offending vehicle as R.W.1 and got marked one document as Ex.R1. On appreciation of oral as well as documentary evidence, the Tribunal has granted compensation of Rs.7,42,685/- with interest @ 6% p.a. fastening the liability on the respondent-BMTC. Being aggrieved by 6 the same, the BMTC has filed an appeal in MFA No. 956/2015 on the ground of negligence and the claimants have filed the appeal in MFA No.3273/2015 seeking enhancement of compensation.
6. Sri. Vijay Kumar D, learned counsel appearing for the BMTC would contend that the accident occurred due to contributory negligence of the deceased as she got down from the bus where there is no bus stop without any signal either from the driver or the conductor. He would further contend that the driver of the offending bus has been acquitted in the criminal case. He would further contend that though the claimants are deposed that the deceased was earning Rs.8,000/- per month but they have not produced any document to substantiate the same. He would further contend that the deceased was a bachelor aged about 21 years and she would get marry if she alive. As such, the claimants are not entitled for future prospects. The compensation 7 awarded under other heads is just and reasonable. Therefore, he sought to allow the appeal setting aside the judgment and award passed by the Tribunal.
7. Per contra, Sri. Kalyan R, learned counsel appearing for respondents/claimants would contend that immediately after the accident, the complaint has been lodged against the driver of the offending bus and FIR has been registered against him, later charge sheet has been filed against him. In the evidence of P.W.1, it is very clear that the bus was stopped near the bus stop. When she got down from the bus the driver drove the same in a negligent manner due to which, the accident was occurred. As such the accident occurred only due to the negligent driving of the driver of the bus. He would further contend that in view of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017)16 SCC 680, 8 the claimants are entitled for addition of future prospects. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards 'future prospects' should be added where the deceased was below the age of 40 years. But the Tribunal has not considered this aspect of the matter and has not considered addition of future prospects. He would further contend that the claimants are entitled for conventional head i.e., loss of estate and funeral expenses, Rs.15,000/- each is to be awarded. He would further contend that, at the time of accident, the deceased was earning Rs.8,000/- per month. But the Tribunal while assessing the income, has taken notional income of the deceased at Rs.6,000/- per month which is on the lower side.
8. Heard learned counsel for the parties and perused the original records.
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9. It is not in dispute that Ms.Jyothi died due to the road accident occurred on 06.02.2014. It is the specific case of the claimants that when the deceased was getting down from the bus nearby Vijaya Rolling Mill bus stand, Peenya 2nd stage, Peenya Industrial Area, all of a sudden the driver of the offending bus drove the same in a rash and negligent manner with high speed, due to which, she fell down from the bus and sustained injuries. Immediately, she was shifted to Sanjeevani hostipal for treatment but she succumbed to the injuries on 07.02.2014. Therefore, the complaint was lodged against the driver of the offending bus and the FIR was registered against the driver of the bus as per Ex.P1. The police have filed the charge sheet against the driver as per Ex.P6. The driver has been examined as R.W.1. In his examination he has deposed that when the bus was in the process of stopping near the bus stop, Ms.Jyothi attempted to get down from the moving bus, so she fell down and sustained injuries. This is 10 very clear from the testimony of R.W.1 and Ex.P2-spot sketch that there was bus stop at Rolling Mill Factory.
10. I have perused the Ex.P1-copy of FIR with complaint, Ex.P2-Mahazar and spot sketch, Ex.P3-IMV report, Ex.P4 is the inquest report, Ex.P5 is the post mortem report, Ex.P6-charge sheet reveal that the driver of the offending vehicle drove the said vehicle in a rash and negligent manner and caused the accident. Ex.R1- copy of the judgment is not rebutting the evidence of Ex.P1 to P6. The sketch-Ex.P2 clearly reveals that the deceased has sustained grievous injuries in the Road Traffic Accident. R.W.1 admitted that he called the ambulance-108 and shifted to the deceased Jyothi to the hospital. The deceased Jyothi was succumbed at Premier Sanjeevini hospital. The petitioners proved that the alleged accident caused due to rash and negligent act of the driver of the offending vehicle. The proceedings under Motor Vehicle Act are not akin to the 11 proceeding in the civil suit and strict rules of evidence are not required to be followed in this regard.
11. In view of the above, I am of the opinion that the alleged accident caused due to the rash and negligent act of the driver of the offending vehicle. Therefore, there is no error in the finding given by the Tribunal on this aspect.
12. It is the specific case of the claimants that the deceased was earning Rs.8,000/- per month but the claimants have not produced any document to prove the same. Under this circumstance, the Tribunal was left with no other option, but to asses the income of the deceased notionally. While assessing the notional income, the Tribunal has considered the notional income of the deceased at Rs.6,000/- which is lower on side. In catena of cases, this Court has relied upon the Chart prepared by the Lok-adalath for the purpose of deciding the matters. According to the Chart, for an 12 accident of the year 2014, the income should be taken notionally as Rs.8,000/- per month. The Apex Court in the case of Pranay Sethi's (Supra) has categorically held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. Accordingly, 40% of the income of the deceased has been added as future prospects. Hon'ble Apex Court in the case of Hem Raj Vs. Oriental Insurance Company Limited and others reported in 2018 ACJ 5, it is held that, even when the income of the deceased is determined on guess work based on the facts and circumstances of the case, addition of 40% of the income has to be made towards 'future prospects'. Paragraph-13 of the said decision is relevant and same is extracted hereunder:
"13. "We are of the view that there can not be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and 13 circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made. The tribunal made addition of 50% while the High Court has deleted the same."
13. Motor Vehicle Act is a beneficial legislation aimed at providing relief to the victims or their families. While determining the compensation, the status of the deceased as on the date of the accident has to be considered. In this case, as on the date of the accident, deceased was a bachelor. The claimants are entitled for compensation under the head 'future prospects'. In the similar circumstances, Hon'ble Apex Court in the case of Joginder Singh Vs. ICICI Lombard General Insurance Company in C.A.No.629/2019, D.D.14.08.2019 awarded future prospects to the parents of the deceased, in case of death of unmarried daughter. Para 4.1 reads as herein below:
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"We further find that the Courts below have failed to award future prospects at 40% of the income of the deceased, as mandated by the judgment of the Constitution Bench in case of National Insurance Company Limited v. Pranay Sethi and Others."
14. Therefore, it is very clear that in case of death of unmarried daughter, the parents are entitled for compensation under the category of future prospects. In view of the above, the contention of the counsel appearing for BMTC that since she may marry in future, the claimants are not entitled for compensation under the category of future prospects is unsustainable. Therefore, the claimants are entitled for addition of 40% of the income of the deceased. Since the deceased was bachelor at the time of accident, 50% income has to be deducted for her personal expenses. 15
15. Accordingly, loss of dependency has been recalculated as below:-
Monthly income of the - 8,000/-
deceased
Add: 40% towards future - 3,200/-
prospects
- 11,200/-
LESS: 50% towards - 5,600/-
personal expenses
Actual monthly income - 5,600/-
Multiplier - 18
Loss of dependency - 12,09,600/-
(5,600 x 18 x 12)
16. Hon'ble Apex Court in Pranay Sethi case stated supra has opined that for other conventional heads, namely, loss of estate, loss of consortium and funeral expenses, the claimants are entitled for a sum of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Accordingly, the compensation under these heads are reassessed.
17. The Hon'ble Apex Court in Magma General Insurance Company Limited Vs. Nanu Ram and others reported in 2018 ACJ 2782 has held that the 16 parents are entitled for filial consortium. In the present case, the 1st claimant lost her daughter during her lifetime. It causes great shock and agony to the parents and family members of the deceased. The greatest agony is to lose the child during life time. In view of the above, mother of the deceased is entitled for a sum of Rs.40,000/- under the head loss of love and affection.
18. Accordingly, the appeal in MFA No. 956/2015 filed by the BMTC is dismissed and the appeal in MFA No. 3273/2015 filed by the claimants is allowed in part. The judgment and award passed by the Tribunal is modified as follows:
Compensation As awarded by As awarded by under different the Tribunal this Court Heads (Rs.) (Rs.) Loss of Dependency 6,48,000/- 12,09,600/- Re-imbursement of 24,685/- 24,685/-
Medical expenses
Ambulance charges 5,000 5,000
Loss of love and 50,000 40,000
affection
Funeral expenses 10,000 15,000
Transportation of 5,000 -
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dead body
Loss of estate - 15,000
Total 7,42,685/- 13,09,285/-
19. The BMTC is directed to deposit the entire compensation amount along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment.
20. The apportionment, fixed deposit and release shall be made as per the ratio adopted by the Tribunal.
The amount deposited before this Court is transferred to the Tribunal.
Sd/-
JUDGE JS/-