Karnataka High Court
Bangalore Metropolitan Transport ... vs Smt Suman Gooptu on 8 January, 2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
M.F.A.NO.574/2008(MV)
C/W
M.F.A.CROB.NO.161/2009
IN M.F.A.NO.574/2008
BETWEEN:
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H. DOUBLE ROAD
SHANTHINAGAR, BANGALORE.
BY ITS MANAGING DIRECTOR.
...APPELLANT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
AND:
1. SMT. SUMAN GOOPTU
W/O LATE CHANDAN GOOPTU
AGED ABOUT 35 YEARS.
2. MASTER RISHAV GOOPTU
S/O LATE CHANDAN GOOPTU
AGED ABOUT 8 YEARS.
3. SAMIR GOOPTU
S/O LATE THARAKANATH GOOPTU
AGED ABOUT 74 YEARS.
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4. PRANATHI GOOPTU
W/O SAMIR GOOPTU
AGED ABOUT 72 YEARS.
SINCE THE 2ND RESPONDENT IS MINOR
REP. BY HIS MOTHER AND NATURAL
GUARDIAN THE 1ST RESPONDENT.
ALL ARE R/O. No.31, PAPAMMA LAYOUT
RAMAMURTHINAGAR
BANGALORE - 560 016.
... RESPONDENTS
(BY SRI. T.M. VENKATA REDDY, ADVOCATE FOR R1 TO R4
R2 IS MINOR REP. BY R1
NOTICE TO R5 IS HELD SUFFICIENT V/O/DT:14/7/2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:15.3.2007 PASSED IN MVC No.2958/2005 ON THE FILE
OF VI ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT, METROPOLITIAN AREA, BANGALORE, (SCCH No.2),
AWARDING A COMPENSATION OF RS.7,34,000/- WITH
INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
IN M.F.A.CROB.NO.161/2009
BETWEEN:
1. SMT. SUMAN GOOPTU
AGED ABOUT 35 YEARS
W/O LATE CHANDAN GOOPTU.
2. MASTER RISHAV GOOPTU
AGED ABOUT 8 YEARS
S/O LATE CHANDAN GOOPTU.
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3. SAMIR GOOPTU
AGED ABOUT 74 YEARS
S/O LATE THARAKANATH GOOPTU.
4. PRANATHI GOOPTU
AGED ABOUT 72 YEARS
W/O SAMIR GOOPTU.
2ND OBJECTOR IS MINOR & REP. BY
HIS MOTHER AND NATURAL GUARDIAN
THE 1ST CROSS OBJECTOR.
ALL ARE AT No.31, PAPAMMA LAYOUT
RAMAMURTHYNAGAR
BANGALORE - 16.
... CROSS OBJECTORS
(BY SRI. T.M. VENKATA REDDY, ADVOCATE)
AND:-
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
REP. BY ITS MANAGING DIRECTOR
THE CENTRAL OFFICE
SHANTHINAGAR, BANGALORE.
... RESPONDENT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
THIS MFA CROB IN MFA No.574/2008 IF FILED
U/ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT
AND AWARD DATED 15.3.2007 PASSED IN MVC No.2958/2005
ON THE FILE OF VI ADDITIONAL SCJ & MEMBER, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THIS MFA ALONG WITH MFA CROB HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Both these appeal and cross-objection are arising out of the judgment and award dated 15.03.2007 in MVC No.2958/2005 on the file of Motor Accident Claims Tribunal and VI Additional Small Causes Judge, Bangalore.
2. The facts in brief which gave rise to these appeal and cross-objection are as under:
On 28.02.2005, deceased-Chandan Gooptu was proceeding as a pillion rider on a motor cycle bearing registration No.KA-03-EB-8046 on Banasawadi Main Road. When the motor cycle reached in front of Uttam Sagar Hotel at about 1.45 p.m., a BMTC bus bearing registration No.KA- 25-F-1036 came from opposite direction in a rash and negligent manner and dashed against the motor cycle. As a result of the accident, deceased who was pillion rider 5 sustained grievous injuries, to which he succumbed on way to the hospital. He was aged about 36 years, working as Technical Support Executive in CLI3Le-Services Ltd., and drawing a monthly salary of Rs.10,650/-. He was the only bread earner of the family. His wife, a minor son aged 4 years and both the parents filed a claim petition under Section 166 of the M.V. Act claiming compensation from the owner of the BMTC bus on the ground that the accident occurred on account of the negligence of the driver of the BMTC bus.
The claim petition was contested by the BMTC mainly on the ground that it is a case of contributory negligence, that the rider of the motor cycle has also contributed towards the accident to a greater extent, the claim petition is bad for non- joinder of the owner and insurer of the motor cycle involved in the accident.
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The claim petition came up for consideration before the Tribunal before whom on behalf o the claimants, claimant No1/wife of the deceased was examined as PW.1, Exs.P1 to P13 were marked. Driver of the BMTC bus was examined as RW.1. The Tribunal on appreciation of evidence recorded a finding that accident and resultant death of the deceased was due to rash and negligent driving of the BMTC bus. Further, the Tribunal having regard to the age of the deceased as 37 years selected the appropriate multiplier '15'. Further, the Tribunal placed reliance on Ex.P8 the Salary Sheet wherein the gross salary is shown as Rs.10,650/- per month. However, the Tribunal has taken the income at Rs.5,700/-per month and after deducting 1/3rd towards personal and living expenses, determined loss of dependency as Rs.6,84,000/-. Further, the Tribunal awarded a sum of Rs.20,000/- towards loss of consortium, Rs.20,000/- towards loss of love and affection, Rs.10,000/- towards transportation 7 of dead body and funeral expenses. Thus, the Tribunal awarded total compensation of Rs.7,34,000/- with interest at 7% per annum from the date of petition till realization by the impugned and judgment and award.
3. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred M.F.A. No.574/2008 for enhancement of compensation awarded by the Tribunal. Aggrieved by total negligence fixed on driver of the BMTC bus, BMTC preferred M.F.A.Crob 161/2009.
4. I have heard both the learned counsel appearing for the claimants and the BMTC.
5. The submission of the learned counsel for the claimants is that though Tribunal placed reliance on Ex.P8 the salary certificate wherein the gross salary is shown as Rs.10,650/-, without any basis, the Tribunal has taken the 8 monthly income as Rs.5,700/- and determined the loss of dependency, which requires modification by taking the income at Rs.10,650/- per month. Further, the learned counsel submitted that the police after investigation filed charge-sheet against the driver of the BMTC bus and therefore, the Tribunal has rightly recorded a finding that the accident occurred on account of negligence of driver of the BMTC bus.
6. The submission of the learned counsel appearing for the BMTC is that though there was ample evidence to speak about the contributory negligence on the part of the rider of the motor cycle which is also evident from the spot sketch and other documents, the Tribunal erred in coming to the conclusion that the accident occurred purely due to the negligence of the driver of the BMTC bus and hence the learned counsel for BMTC has prayed to fix 50% 9 contributory negligence on the part of the rider of the motor cycle by modifying the award.
7. Having heard the submission made by both the learned counsel and on perusal of the entire material on record, the following points would arise of my determination:
i) Whether the compensation awarded by the Tribunal is just and reasonable?
ii) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the BMTC bus?
Re. Point No.1.
8. Though in Ex.P6-the post mortem report, the age of the deceased is shown as 35 years, the claimant have produced a certified copy of Hindu Marriage Register issued by Hindu Marriage Registrar, Alipore Sagar Sub-Division, Kolkatta, the native place of the deceased wherein the age of the bridegroom deceased-Chandan Gooptu as on 16.02.1999 is shown as 29 years 2 months and that of his wife Sumana is 10 shown as 25 years 5 months. He died in the accident on 28.02.2005. Meaning thereby, he was aged about 36 years as on the date of the accident and as such, the Tribunal is justified in selecting the appropriate multiplier as '15'. Since the deceased himself has stated his correct age before the Registrar of Marriage, the age shown in Ex.P9 prevails over the age shown in Ex.P6 Post Mortem Report which is the approximate age. So far as the income of the deceased is concerned, the Tribunal has placed reliance on Ex.P8. In Ex.P8, his basic salary, HRA, Medical allowance, transport allowance, supplementary allowance, performance incentives, attendance incentives, per month and also per annum are shown. If we compare the amount shown under the various heads per month with the amount shown per annum, it is abundantly clear that the amount shown under various head is fixed amount for which he is entitle for whole year. In that case, there was no reason for the Tribunal to deduct the 11 amount/allowance for which he was entitle for all the 12 months in a year by way of performance incentives, attendance incentives, transport allowance. The amount shown under the various heads form part and parcel of his salary. Moreover, he was maintaining his family consisting of five members in a city like Bangalore. As such, the Tribunal is not justified in taking the monthly income at Rs.5,700/-, though he was getting every month the salary at Rs.10,650/-. The salary sheet that is marked as Ex.P8 was enclosed with his appointment order dated 18.12.2004. Therefore, that was the salary promised to him at the time of his appointment. As such, I deem it just and proper to take his monthly income as Rs.10,650/-. Since the dependents are four in numbers, 1/3rd is to be deducted towards personal and living expenses. The monthly loss of dependency comes to Rs.7,100/-. The total loss of dependency would be Rs.12,78,000/- (Rs.10,650/- x 12 x 2/3 x 15) as against 12 Rs.6,84,000/- determined by the Tribunal. Further, the Tribunal awarded an amount of Rs.50,000/- towards conventional heads. Ends of justice will be met, if the amount awarded under the conventional heads is enhanced from Rs.50,000/- to Rs.70,000/-. Thus, the total compensation comes to Rs.13,48,000/-.
Re.Point No.2.
9. The BMTC has taken up a contention that it is a case of contributory negligence on the part of the driver of the BTMC bus and rider of the motor cycle wherein the deceased was a pillion rider. The Tribunal has negatived the said contention mainly for the reason that in connection with the accident, the charge-sheet came to be filed against the driver of the BMTC bus. But, the Tribunal has not taken into consideration the other material placed on record while coming to the conclusion regarding the issue on negligence. 13 Admittedly, PW.1 is not an eye witness to the accident. In other words, the claimants have not examined an eye witness to the accident. In all fairness, the claimants ought to have examined the rider of the motor cycle so as to give an opportunity to the BMTC to cross-examine the rider of the motor cycle, that too when the BMTC has pleaded a case of contributory negligence. So also, the Tribunal has not at all considered, discussed or appreciated the evidence of the driver of the BMTC bus who was examined as RW.1. RW.1 has deposed that the accident occurred purely on account of the negligence of the rider of the motor cycle who on account of his rash and negligence riding dashed against the BMTC bus. Merely because the complaint came to be lodged against the driver of the BMTC bus and the police filed charge-sheet against him, it was the duty of the Tribunal to appreciate the entire evidence placed before it before coming to the conclusion. The Tribunal is not bound by only the charge- 14 sheet filed by the police. Ex.P3 is the spot sketch which gives some idea about the manner in which the accident occurred. From the situation shown in the spot sketch Ex.P3 coupled with the evidence of RW.1 the driver of the BMTC bus, it appears to me that the accident occurred on account of the negligence of the BMTC bus driver and rider of the motor cycle wherein the deceased was proceeding as a pillion rider. The contribution of the driver of the BMTC bus appears to be 75% and that of the rider of the motor cycle at 25%. Accordingly, the point for consideration is answered.
10. Thus, the claimants are entitled for Rs.10,11,000/- being 75% of the total compensation determined as against Rs.7,34,000/- awarded by the Tribunal. There shall be enhancement of compensation of Rs.2,77,000/- over and above the compensation awarded by the Tribunal.
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For the foregoing reasons, M.F.A.No.574/2008 and M.F.A.Crob.161/2009 are partly allowed. The judgment and award dated 15.03.2007 in MVC No.2958/2005 on the file of the Motor Accident Claims Tribunal and VI Additional Small Causes Judge, Bangalore, stands modified awarding an enhanced compensation of Rs.2,77,000/- over and above the compensation awarded by the Tribunal together with interest at 7% per annum from the date of petition till the date of realization.
The BMTC is directed to deposit the enhanced compensation with 7% interest within three weeks from the date of receipt of the copy of the judgment.
In the event of deposit, a sum of Rs.1,00,000/- shall be invested in the name of claimant No.1-Suman Gooptu in Fixed Deposit in any Nationalised/Scheduled bank of her 16 choice, Rs.1,00,000/- in the name of appellant No.2-Master Rishav Gooptu in Fixed Deposit in any Nationalized/Scheduled bank of the choice of his mother till he attains the age of majority.
Remaining amount with interest shall be paid to claimant Nos.1, 3 and 4 in equal proportion.
Sd/-
JUDGE PMR