Karnataka High Court
The Managing Director vs Mrs Amudha on 15 June, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.3857/2017 (MV-D)
BETWEEN:
THE MANAGING DIRECTOR,
BANGALORE METROPOLITAN TRANSPORT,
CORPORATION (B.M.T.C), K.H.ROAD,
BANGALORE-560027.
REPRESENTED BY IT'S
CHIEF LAW OFFICER.
... APPELLANT
(BY SRI. F.S.DABALI, ADVOCATE)
AND:
1. MRS. AMUDHA,
W/O LATE JOSEPH,
AGED ABOUT 36 YEARS,
2. SUJJAN JOSEPH,
D/O LATE JOSEPH,
AGED ABOUT 6 YEARS,
3. ROJAMMA @ ROSAMMA,
W/O LATE LAZAR,
AGED ABOUT 62 YEARS,
4. SUSMITHA JOSEPH,
D/O LATE JOSEPH,
AGED ABOUT 4 YEARS,
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RESPONDENT NO.2 AND 4 ARE
BEING MINORS, REPRESENTED BY
THEIR MONTHER AMUDHA,
THE RESPONDENT NO.1.
ALL ARE RESIDING AT NO.397,
12TH CROSS, M.V. GARDEN,
HALASOOR, BHARATHI NAGAR,
BANGALORE-560008.
... RESPONDENTS
(BY SRI.RAGHAVENDRA E.P. ADVOCATE FOR R1 AND R3,
R2 & R4 ARE MINORS REPRESENTED BY R1-
NATURAL GUARDIAN, MOTHER)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:27.02.2017 PASSED IN MVC NO.5140/2015 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE
AND XX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
AND MACT BENGALURU (SCCH-24), AWARDING
COMPENSATION OF RS.16,65,000/- WITH INTEREST AT
THE RATE OF 8% P.A. FROM THE DATE OF PETITION, TILL
DEPOSIT AND ETC.,
THIS M.F.A. COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant - insurance company, challenging the judgment and award dated 27.02.2017, passed in MVC No.5140/2015, on the file of XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate & MACT, at Bangalore (hereinafter referred to as 'the Tribunal' for brevity), questioning the liability and quantum.
Brief facts:
2. On 07.03.2015, at about 4.30 p.m., the deceased Joseph along with other workers were painting the road center median at Mahadevapura Ring Road, B. Narayanapura, Bengaluru. At that time, a BMTC bus bearing registration No.KA-01-FA-1173 driven by its driver in a rash and negligent manner came from K.R.Puram Railway Station towards 4 Marathahalli, lost control on the vehicle and dashed against the barricade, consequently the barricade fell on the deceased Joseph. Due to the impact deceased Joseph who was painting on the road sustained grievous injuries. Immediately, he was shifted to Chinmaya Hospital. Inspite of necessary treatment, the doctors unable to save him and he succumbed to the injuries. Thereafter, the body was shifted to Bowring Hospital and postmortem conducted.
3. Hence, a claim petition was filed by the claimants under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.16,65,000/- along with interest at 8% per annum, from the date of petition till the date of deposit. The Tribunal held the appellant - insurance company, liable to pay the compensation. 5
4. The compensation awarded by the Tribunal is as follows:
Loss of Dependency : Rs. 16,20,000/-
Loss Of Consortium : Rs. 20,000/-
Loss of love and affection : Rs. 30,000/-
Transportation charges : Rs. 2,000/-
Funeral And Obsequies : Rs. 8,000/-
Ceremony Expenses
TOTAL : Rs. 16,80,000/-
5. The learned counsel for the appellant
submitted that the quantum of negligence attributed by the Tribunal on the part of the BMTC Driver is high for the reason that, there was no rash and negligence on the part of the driver of the BMTC bus. That the deceased was crossing the road without observing traffic rules. Therefore, the deceased himself was at fault but the Tribunal wrongly held the bus driver was negligent. Further, submitted that the amount of compensation awarded by the Tribunal is on higher side. For the reason, under the head 'loss of future 6 prospects' the Tribunal has taken 50% of the income, but it ought to have be 25%, as per the judgment of the Hon'ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. VS. PRANAY SETHI, reported in (2017) 16 SCC 680. Therefore, the Tribunal has awarded excess compensation and the same is to be reduced. Further, submitted that the rate of interest ought to have been granted at 6% per annum, but awarded on higher rate at 8% per annum. Therefore, the same needs to be reduced. Hence, prays to allow the appeal by modifying the judgment and award of the Tribunal.
6. On the other hand, the learned counsel for the respondent-claimant submitted that the Tribunal correctly held the negligent on the part of BMTC bus as the deceased was working as painter on the road, painting the median at the instance of BDA and at the time, the driver of the BMTC driver was driving the 7 bus in high speed and rash and negligent manner and dashed against the workers who were painting median and in this way the deceased sustained fracture injuries and succumbed to the injuries, which is clearly discussed by the Tribunal. Therefore, submitted, has rightly placed negligence on the part of the BMTC bus.
7. Further, the learned counsel for the respondents - claimants submitted that under the head of 'loss of consortium' each family members are entitled for a sum of Rs.40,000/- each. But the Tribunal has awarded a sum of Rs.20,000/-.
Therefore, the same is needed to be enhanced. However, the claimants have not filed an appeal seeking enhancement.
8. Further, the learned counsel for the respondents - claimants submitted that the Tribunal has awarded compensation on a lesser side. Therefore, whatever amount was awarded by the 8 Tribunal was not challenged by the Claimants. Therefore, prays for confirming the judgment and award passed by the Tribunal as the quantum granted is just and proper. Further, submitted that the interest at the rate of 8% per annum is also correct. There is no need to make any interference in this regard. Therefore, prays to dismiss the appeal.
9. Considering the rival submissions of both the parties, the Tribunal had held that the notional monthly income at Rs.8,000/- per month is on lesser side. The accident has occurred in the year 2015. Therefore, considering the year of the accident, the notional income ought to have been taken at Rs.9,000/- per month as per the chart of Karnataka State Legal Services Authorities. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, is '15', 9 since the appellant was aged 40 years at the time of accident. Further, the accident has occurred in the year 2015. Therefore, as per the Notional Income Chart preferred by the Karnataka State Legal Service Authority, the notional income of Rs.9,000/- is to be taken into consideration. Further, as per principle of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, 25% of his monthly income is to be added towards 'Loss Of Future Prospects In Life', i.e., Rs.2,250/- (Rs.9,000/- x 25%). Therefore, the monthly income of the deceased is liable to be taken at Rs.11,250/- (Rs.9,000/- + Rs.2,250/-). Further, 1/4th of deceased income is to be deducted towards Personal Expenses and the contribution to the family is taken as Rs.8,437/- per month. Therefore, the compensation under the head 'Loss Of Dependency' is recalculated and quantified as follows:
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Rs.9000 + 2,250 x ¾ x 15 x 12 = Rs.15,18,750/- Therefore, the claimants ought to have been entitled for a sum of Rs.15,18,750/- instead of Rs.16,20,000/- towards 'Loss of Dependency', as awarded by the Tribunal.
10. Further, the Tribunal has awarded compensation of Rs.20,000/- under the head 'loss of consortium' but as per the principles of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, at para Nos.59.3 and 59.4, each family members are entitled for a compensation of Rs.40,000/- each under the head 'Loss Of Consortium' that works out to Rs.1,60,000/- (40,000 x 4) for all four claimants, who are wife, two minor children and old mother. But for this also the claimants have not preferred appeal. 11
11. Also considering the amount of compensation awarded under various heads, are also found to be on lesser side. However, there is no appeal by the claimants. Therefore, considering these aspects, the amount awarded by the Tribunal is found to be just and proper, which needs no interference by this Court. Therefore, the quantum of compensation awarded by the Tribunal is confirmed.
12. Regarding the percentage of interest awarded by the Tribunal at 8% per annum, the same is on higher side and has to be 6% per annum. Therefore, only on this aspect of the rate of interest, the judgment and award is modified awarding interest at 6% per annum on the quantum of compensation of Rs.16,80,000/- awarded by the Tribunal.
13. In the present case, the learned counsel appearing for the BMTC submitted that the deceased 12 was crossing the road negligently and therefore the accident was caused. Reliance is placed on the evidence of RW-1 who is the driver of the BMTC and the appellant has not produced any other evidence other than the driver of the BMTC Bus that the deceased was negligent. But upon perusing the complaint, FIR, spot sketch, mahazar, charge-sheet, as per Exhibits-P1 to P4, P7 and P8 respectively, it is proved that the deceased was hired in the work of painting of road by the BDA. Therefore, when the deceased was working as painter on the road, when the accident has occurred. It is borne out from Exhibit-P2, which is lodged after 1½ hours from the time of the accident. Therefore, there is no delay in lodging the complaint after the accident.
14. Further, Exhibit-P3 is the spot sketch which proves that the bus was coming from north to south and came to the wrong side of the road, hit the 13 deceased. This evidence also shows that the driver of the BMTC was rash and negligent while driving the bus. Further, upon investigation the Investigating Officer who conducted investigation and filed the charge-sheet which shows that the driver was negligent in driving the bus and caused the accident. Therefore, this proof shows that the driver of the BMTC bus who was examined as RW-1 was rash and negligent, who is a tort-feaser. But his evidence cannot be believed. Except the evidence of RW-1, the appellant does not have any other evidence to show that the deceased was negligent and while crossing the road, he met with the accident.
15. On the other hand, it seen from the records that the deceased was a painter under the employment of BDA for painting the median of the road. At that time, BMTC bus driver had caused the accident. Therefore, there is no merit found in the contention of the appellant-BMTC.
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16. Accordingly, I proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 27.02.2017, passed in MVC No.5140/2015, on the file of XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate & MACT, at Bangalore, is modified, only to the extent of rate of interest.
iii. The claimants are entitled for interest at 6% per annum on the compensation awarded by the Tribunal at Rs.16,80,000/-, instead of 8% per annum, from the date of petition till the date of realization. iv. The amount in deposit shall be transferred to the Tribunal forthwith.
15v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vi. Draw award accordingly.
Sd/-
JUDGE JJ