Karnataka High Court
The Managing Director vs Sri Rizwan Beg on 7 August, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 07TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO.2468 OF 2017 (MV)
C/W
M.F.A NO.8270 OF 2017 (MV)
IN M.F.A. NO.2468 OF 2017:
BETWEEN
THE MANAGING DIRECTOR,
BMTC BUS,
SHANTHINAGAR,
BANGALORE - 560 027.
REPRESENTED BY ITS
CHIEF LAW OFFICER. ... APPELLANT
(By Sri. F.S. DABALI, ADVOCATE)
AND
1. SRI RIZWAN BEG
S/O RAFIQ BEG,
AGED ABOUT 24 YEARS,
R/O NO. 439, K.M.COLONY,
SIDDAPURA, JAYANAGAR, 1ST BLOCK,
SOUTH RANGE,
BANGALORE - 560 011.
2
2. THE MANAGER,
ROYAL SUNDARAM ALLIANCE
INSURANCE COMPANY LTD.,
NO. 186/7, RAGAVENDRA COMPLEX,
WILSON GARDEN, 1ST CROSS,
HOSUR MAIN ROAD,
BANGALORE - 560 027.
ISSUING OFFICE:
SUNDARAM TOWER 45 & 46,
WHITE ROAD, CHENNAI - 600 002.
BEARING VEHICLE NO. KA-01-3427,
POLICY NO. VGT0004343000101
INSURANCE VALID FROM 13.01.2012
TO 12.01.2013
3. MAHAMMED DOSTAGIRI
S/O LATE GULAM HUSSIAN,
AGE: MAJOR,
R/O NO. 25/3, BELI MASJID ROAD,
JOLLY MOHALLA,
BANGALORE - 560 053.
... RESPONDENTS
(BY SRI CHANDRASHEKAR RODANAVAR,
ADVOCATE FOR R1,
SRI O.MAHESH, ADVOCATE FOR R2,
NOTICE TO R3 D/W V/O DATED 30.11.2017)
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:29.12.2016 PASSED
IN MVC NO.940/2013 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.2,18,600/- WITH INTEREST AT THE RATE OF 8% PER
ANNUM FROM THE DATE OF PETITION, TILL DEPOSIT.
3
IN M.F.A NO.8270 OF 2017:
BETWEEN
SRI RIZWAN BEG,
S/O. RAFHIQ BEG,
AGED ABOUT 24 YEARS,
R/O. NO. 439, K.M. COLONY,
SIDDAPURA,
JAYANAGAR 1ST BLOCK,
SOUTH RANGE,
BANGALORE-560 011. ... APPELLANT
(By Sri CHANDRASHEKAR RODNAVAR, ADVOCATE)
AND
1. ROYAL SUNDARAM ALLIANCE
INSURANCE COMPANY LTD.,
NO. 186/7, RAGHAVENDRA COMPLEX,
WILSON GARDEN, 1ST CROSS,
HOSUR MAIN ROAD,
BENGALURU-560 027,
ISSUING OFFICE:
SUNDARAM TOWER 45 AND 46,
WHITE ROAD, CHENNAI-600 002,
BEARING VEHICLE NO.KA-01-3427,
POLICY NO: VGT0004343000101
VALID FROM 13/1/12 TO 12/1/13.
2. SRI. MAHAMMED DOSTAGIRI
S/O. LATE GULAM HUSSAIN,
MAJOR,
R/O. NO. 25/3, BELI MASJID ROAD,
JOLLY MOHALLA,
BANGALORE-560 053.
4
3. THE MANAGER
THE KSRTC BUS
SHANTHINAGAR,
BANGALORE.
(THE R-3 HAS BEEN DELETED AS PER
ORDER DATED 8.02.2016)
4. THE MANAGER
BMTC BUS,
SHANTHI NAGAR,
BANGALORE. ... RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R1,
NOTICE TO R2 IS D/W V/O DATED 7.8.2018,
SRI.F.S. DABALI, ADVOCATE FOR R4)
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:29.12.2016 PASSED
IN MVC NO.940/2013 ON THE FILE OF THE XXII
ADDITIONAL SMALL CAUSES JUDGE & XX ACMM,
MEMBER, MACT, BENGALURU, (SCCH-24), PARTLY
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
The appeal by the Management of the offending BMTC Bus in MFA No.2468/2017 and the appeal by the Claimant in MFA No.8270/2017 lay a challenge against the judgment and award dated 29.12.2016 made by MACT, Bengaluru (SCCH-24) allowing MVC No.940/2013 whereby, a 5 compensation of Rs.2,18,000/- with interest at the rate of 8% has been awarded subject to the apportionment of liability between the two offending vehicles in the ratio of 50:50.
2. In a collision between two vehicles i.e., a lorry bearing Registration No.KA-01-3427 and a BMTC bus bearing Registration No.KA-01-FA-1977, on 02.11.2012, near Suradenapura Gate, on Doddaballapura-Bengaluru main road, the Claimant, a lorry-mechanic by occupation sustained grievous injuries. He had presented a claim petition in MVC No.940/2013 which was resisted by the insurer and by the BMTC by filing the Written Statements.
3. To prove the claim, the Claimant himself got examined as PW1 and had examined Dr.Ramesh K.T. who had treated his injuries, as PW2. From the Claimant's side forty-one documents came to be marked as per exhibits P1 to P41 which included the Police Papers and the Medical Records. From the side of respondents, in all, three persons came to be examined as per RW1 to RW3 and that, three 6 documents came to be marked in their evidence as per exhibits R1 to R3. These documents included Charge Sheet and the Insurance Policy.
4. The MACT, after adverting to the pleadings of the parties and after assessing the evidentiary material on record, has entered the impugned judgment and award. The owner of the offending Bus challenges the award on the ground of contributory/composite negligence, whereas the Claimant challenges the award on the ground of inadequacy of compensation.
5. The learned counsel for BMTC vehemently contends that admittedly, the accident occurred because of collision of two vehicles; the lorry in question was wrongly parked on the State Highway during dusk of the day; though there was a kaccha road of eight feet on the left side of the road, the lorry was not parked there; the iron and steel rods loaded in the lorry had protruded five feet outside its carrier with no Board or Cloth hanged to their end to make the same visible; the parking lights of the lorry were not put on; in 7 these circumstances, the BMTC Bus despite due diligence, had dashed to the parked lorry. In these circumstances, the MACT ought to have addressed the issue of composite negligence. That having not been done, the award is vulnerable.
6. Per contra, the learned counsel for the respondent-insurer of the parked lorry submits that no specific contention as to composite negligence has been taken by the appellant in its Written Statement; the lorry was parked on the left side of the road for the purpose of mechanical repairs; there was enough space on the right side of it for the passing of any other vehicle in either direction; the driver of the Bus should have had an idea of unforeseen things; parking of the vehicles on the sides of the road either for repair or otherwise, cannot be termed to be unforceable event at all; the MACT having addressed the issue of composite negligence, has apportioned the liability in the ratio of 50 : 50 and the same is unfaulterable. 8
7. I have heard the learned counsel on either side on the plea of composite negligence. I have also perused the original papers from the Lower Court Records. I have read the Appeal Papers too. The MACT, in its accumulated expertise in the field, has addressed the issue of composite negligence after assessing the evidentiary material on record. This Court is mindful of the fact that assessment of contributory/composite negligence attributable to the drivers of the offending vehicles is a onerous task which by its very nature admits some amount of guesswork as of necessity. Therefore, due deference has to be shown to the finding of the MACT in this regard.
8. The MACT has duly appreciated the evidence on record and arrived at the ratio of 50 : 50 as to the composite negligence of the two offending vehicles. On the basis of re-appreciation of evidence, one may come to another opinion in variance with the findings of the MACT, is no ground for appeal, has legally long been settled. No specific material has 9 been shown by the appellant-owner of the offending vehicle to have escaped the attention and consideration of the MACT. Therefore, this contention fails.
9. The learned counsel for the appellant-owner of the offending vehicle next contended that the MACT failed to appreciate the plea of contributory negligence inasmuch as the Claimant, a mechanic was well aware that the vehicle was parked in a wrong place at a wrong time; as a person of reasonable prudence, he ought to have foreseen the possible collision during the dusk; he should have ensured that the vehicle was parked on the eight feet vide kaccha road adjoining the main road on the left before undertaking repairs from under the vehicle; this having not been done, he too has contributed to the accident in question and to that extent, the liability of the appellant should be reduced.
10. Per contra, the learned counsel for the Claimant contends that the doctrine of composite negligence and that of contributory negligence stand on different footings from each other; the composite negligence is held in the ratio of 10 50:50 between the two offending vehicles per se cannot be extended to contributory negligence; going by the location of the parking on the road, no reasonable person could foresee the possible collision from behind; admittedly, there was problem with the parked lorry which as a mechanic, the Claimant was addressing and therefore, appellant's contention is unworthy of consideration.
11. I have heard the rival contentions at the Bar on the issue of contributory negligence. There is force in the contention of the learned counsel for the Claimant that the same has to be addressed independent of the finding as to the composite negligence. The evidence on record shows that the lorry was parked on the left side of the road and that there was enough space for the BMTC Bus to pass through from the side, since it is a Highway of 20 feet width. This has been admitted by the driver of the Bus who was examined as PW.3. He has also stated that he could see the other vehicles coming from the opposite direction; he further admits that the lorry was parked because of some problem and that the 11 Claimant was carrying out mechanical repairs. That being so, there is no material to attribute contributory negligence to the Claimant. Therefore, this contention also fails.
12. The learned counsel for the Claimant pressing into service his appeal for enhancement for compensation submits that the occupation of the Claimant as a mechanic is not much in dispute; the MACT has recorded a specific finding as to the said occupation; the income of a lorry mechanic who is a skilled person cannot be less than the wages of an ordinary labourer; the Lok Adalat Income Chart for the accident year 2012 mentions Rs.7,000/- as the monthly income of ordinary persons. Therefore, Rs.6,000/- taken by the MACT as notional income of the injured is far below the market standards.
13. I have heard the learned counsel for the appellant, the learned counsel of owners of the offending vehicles as to the contention about monthly income of the deceased and I have also adverted to the deposition of the witnesses and 12 perused the other documentary evidence from the Lower Court Records.
14. The contentions of the Claimant that he is a mechanic by occupation as found by the MACT is not challenged by taking up a specific plea in the Appeal Memo of the BMTC. Thus, the MACT finding as to the occupation of injured Claimant stands intact. If that be so, then the income of the mechanic has to be higher than what an ordinary labourer earns i.e., Rs.7,000/- as indicated by the Lok Adalat Income Chart; it is a matter of common sense that lorry repairers need special skills. Therefore, the monthly income value of the Claimant is required to be enhanced from Rs.6,000/- to Rs.8,000/-. Consequently, the compensation payable under the head "loss of income during the period of treatment", stands automatically enhanced to Rs.24,000/- from Rs.18,000/-.
15. The learned counsel for the Claimant vehemently submits that the percentage of occupational disability is 13 taken very low by the MACT and the same requires to be enhanced, regard being had to the version of PW2, the medical witness. Per contra, the learned counsel for the BMTC justifiably submits that PW2 was only a surgeon (plastic surgery) and secondly, he is the one who treated the injured and therefore, much credence cannot be attached to his version. In these circumstances, no case is made out for the alteration of finding as to the occupational disability.
In view of the altered factors, the compensation has been re-worked out as under, with the assistance of Memo of Calculation submitted at bar.
Pain and Rs.25,000/-
suffering
Medical Rs.7,000/-
Expenses
Food and RS.15,000/-
Attendant
Charges
Loss of Rs.24,000/- Rs.18,000/- Rs.6,000/-
Income
during laid
up period
Loss of Rs.1,72,800/- Rs.1,29,600/- Rs.43,200/-
Future
earnings
14
Loss of Addition
Amenities Rs.49,200/-
Total Rs.2,67,800/- High Court
Rs.2,18,600/- Awarded by
MACT
Balance Rs.49,200/- Addition
In the above circumstances, the appeal of the BMTC Management is dismissed; the appeal of the Claimant is partly favoured; the impugned judgment and award are modified enhancing the compensation from Rs.2,18,600/- to Rs.2,67,800/-; all other terms and conditions of the award are left intact and unaltered.
Costs made easy.
Sd/-
JUDGE CBC/NMS