Karnataka High Court
Bangalore Metropolitan Transport ... vs Smt S Rupa Anand on 7 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.4062 OF 2015(MV)
C/W
MFA NO.5504 OF 2015(MV)
IN MFA NO.4062/2015
BETWEEN:
Bangalore Metropolitan
Transport Corporation,
Central Office, K.H.Road,
Shanthinagar, Bangalore-560 027.
By its Managing Director.
.... Appellant
(By Sri.D.Vijayakumar, Adv.)
AND
1. Smt. S Rupa Anand,
W/o Late. S.Anand Kumar,
Aged about 55 years,
R/at No.626, 6th Main,
11th Cross, BTM 2nd Stage,
Mico Layout, Bangalore-560 076.
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2. Smt. Dr.S.Savithramma,
W/o Late. Sampath Kumar,
Aged about 85 years,
R/at No.86, Muniyappa Layout,
K.R.Puram, Bangalore East,
Bangalore.
3. Mr. Pawan Kumar. A.,
S/o S. Anand Kumar,
Aged about 25 years,
R/at No.626, 6th Main,
11th Cross, BTM Mico Layout,
Bangalore-560 076.
4. Mrs. Purvika Anand,
W/o Arun kumar Kaushik,
Aged about 29 years,
R/at No.626, 6th Main,
11th Cross, BTM Mico Layout,
Bangalore-560 076.
All are residing at No.1051,
14th Main, 6th Cross,
BTM 1st Stage, Bangalore-560 029.
...Respondents
(By Sri. B.S.Venkatnarayan, Adv., for
Smt.K.P.Yashoda, Adv. for R1 to R4.)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:08.04.2015
passed in MVC.No.4226/2014 on the file of the XIX
Additional Small Cause Judge & XLI ACMM, MACT,
Bangalore, awarding compensation of Rs.10,96,500/-
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with interest @6% p.a. from the date of petition till
realization.
IN MFA NO.5504/2015
BETWEEN:
1. Smt. S Rupa Anand,
W/o Sri. Late S.Anand Kumaran,
Aged about 55 years,
R/at No.626, 6th Main,
11th Cross, BTM 2nd Stage,
Mico Layout, Bangalore-560 076.
2. Smt. Dr.S.Savithramma Sampathkumar,
W/o Sri.Late. Sampath Kumar,
Aged about 85 years,
R/at No.86, Muniyappa Layout,
K.R.Puram, Bangalore East,
Bangalore.
3. Mr. Pawan Kumar. A.,
S/o Sri(Late) S. Anand Kumar,
Aged 25 years,
R/at No.626, 6th Main,
11th Cross, BTM 2nd Stage, Mico Layout,
Bangalore-560 076.
4. Mrs. Purvika Anand,
W/o Mr. Arun Kumar Kaushik,
Aged 29 years,
R/at No.626, 6th Main,
11th Cross, BTM 2nd stage
Mico Layout, Bangalore-560 076.
...Appellants
(By Sri.B.S.Venkatnarayan, Adv. for
Sri.Madhukar Deshpande, Adv.)
4
AND:
1. Sri.Manjunath,
Aged major,
Occupation: Driver of BMTC,
No.KA-01-F-4321,
Depot No.25, HSR Layout,
Bangalore-560 036.
2. M/s. Bangalore Metropolitan
Transport Corporation(BMTC),
Central Offices, Shanthinagar,
Bangalore-560 027.
Rep. by the Managing Director.
...Respondents
(By Sri.Vijaykumar, Adv. for R2:
Notice to R1 is dispensed with
v/o dated:15.02.2016.
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:08.04.2015
passed in MVC.No.4226/2014 on the file of the XIX
Additional Small Cause Judge & XLI ACMM, MACT,
Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These MFAs coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
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JUDGMENT
MFA No.4062/2015 is filed by the Bangalore Metropolitan Transport Corporation (hereinafter referred to as 'the Corporation) and MFA No.5504/2015 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 08.04.2015 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of these appeals briefly stated are that on 12.07.2014 at about 6.45 p.m. the deceased S.Ananda Kumaran was walking near St.John's Hospital, Sarjapura Road, Bangalore. At that time, a BMTC bus bearing registration No. KA-01/F-4321 dashed against the 6 deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and immediately shifted to St.John's Hospital and subsequently to Sagar Hospital, Tilaknagar, Bangalore where he succumbed to the injuries on 15.07.2014.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 56 years at the time of accident and was the Managing Director of M/s.Anand Printing and Packaging and also doing consultancy for M/s.Pupa Enterprises and was earning Rs.70,000/- per month. It was pleaded that at the time of the accident the deceased was carrying Rs.1,60,000/- for making payment to his employees, but the same was stolen. It was further pleaded that the accident has occurred due to the negligence of the driver of the BMTC bus. The claimants filed a claim petition seeking compensation.
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4. On service of summons, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded by respondent No.2 that the accident has occurred due to the negligence of the deceased himself. The deceased suddenly crossed the road without observing the vehicles on the road and there is no zebra crossing for pedestrians to cross the road. While so crossing deceased himself slipped and fell down near the bus and sustained head injuries. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition. Respondent No.1 did not appear before the Tribunal and he was placed exparte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.3 as PW-1 8 and got exhibited 19 documents namely Ex.P1 to Ex.P19. On behalf of respondents, the driver of the bus was examined as RW-1 and no documents was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending bus by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.10,96,500/- along with interest at the rate of 6% p.a. Being aggrieved, these appeals have been filed.
5. The learned counsel for the Corporation has contended that the accident has occurred due to the negligence of the deceased. He tried to cross the road from left to right side without observing the vehicle coming from the other side and accident occurred in the middle of the road. There is no negligence on the 9 part of the driver of the bus. Complaint was lodged by the brother of the deceased, who is not an eye witness to the accident. To prove the negligence on the part of the driver of the bus, the claimants have not examined any witness and produced any documents. He further contended that on the other hand, the driver of the bus has been examined as RW-
1. He has specifically stated that the accident took place due to the negligence of the deceased himself. The deceased suddenly crossed the road without following the traffic rules and there was no Zebra crossing for the pedestrians to cross the road. While crossing the road, the deceased himself slipped and fell down near the bus and sustained injuries. He further contended that as per Ex.P-5 Sketch, the accident occurred in the middle of the road and hence it is clear that deceased had also contributed to the accident. But the Tribunal has wrongly held that the 10 accident has occurred due to sole negligence on the part of the driver of the bus.
Secondly, in respect of quantum of compensation, the claimants claim that the deceased was MD of M/s. Anand Printing and Packaging Pvt. Ltd. and earning Rs.40,000/- per month and getting remuneration of Rs.30,000/- per month for consultation and professional charges from M/s.Pupa Enterprises and produced Ex.P-12, certificate issued by CA, who is not authorized to issue the said certificate. In the absence of proof of income, the monthly income of the deceased of Rs.10,000/- assessed by the Tribunal is on the higher side.
Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 11 10% of the established income towards 'future prospects' should be the warrant where the deceased was between the age group of 50-60 years.
Fourthly, the claimant Nos.3 and 4, major son and daughter of the deceased are not dependents of the deceased and the mother is a doctor, she is not dependent and the Tribunal considering them as dependents has erred in deducting 1/4th of the income of the deceased towards personal expenses instead of 50%. The compensation awarded by the Tribunal is on the higher side.
Hence, the learned counsel for the corporation prays for allowing the appeal filed by the Corporation and dismiss the appeal filed by the claimants.
6. Per contra, the learned counsel for the claimants contended that as per Ex.P-5 sketch, it is very clear that the deceased was standing near the footpath. The driver of the bus came in a rash and 12 negligent manner and at a high speed and dashed against the deceased. To prove the contributory negligence, except examining the driver of the bus, they have not examined any other witness. The police have filed FIR against the driver of the bus. The Tribunal on the basis of the documents available on record, has rightly held that the accident has occurred due to negligence of the driver of the bus.
Secondly, in respect of quantum of compensation, even though the claimants claim that the deceased was earning Rs.70,000/- per month and produced documents relating to avocation and income such as certificate issued by CA at Ex.P-12, commercial tax registration certificate at Ex.P-14 and Form B of Commercial Tax at Ex.P-14 and certificate issued by PUPA enterprises at Ex.P-19, the Tribunal is not justified in taking the monthly income of the deceased as only Rs.10,000/-. In support of his 13 contention, he has relied upon the decision of the Hon'ble Apex Court in the case of PAPPU DEO YADAV -V- NARESH KUMAR AND OTHERS reported in 2020 SCC Online SC 752.
Thirdly, the claimants are the wife, mother and son and daughter of the deceased and they are the legal representatives of the deceased and all are entitled for compensation. In support of his contention, he has relied upon the decision of the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED. -V- BIRENDER AND OTHERS reported in 2020 SCC Online SC 28 Fourthly, the compensation awarded by the Tribunal is on the lower side.
Hence, the learned counsel appearing for the claimants prays for allowing the appeal filed by the claimants and dismiss the appeal filed by the Corporation.
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7. We have considered the submissions made by the learned counsel for the parties and have perused the records.
8. It is the case of the claimants that on 12.7.2014, at about 6.45 p.m. when the deceased was proceeding by walk near St.Johns Hospital, Sarjapura Road Bangalore, at that time, the driver of BMTC bus bearing No.KA-01-F-4321 came in a rash and negligent manner and dashed against the deceased. As a result, he sustained injuries and was shifted to St.Johns Hospital and later was shifted to Sagar Hospital and while under treatment, he succumbed to injuries in the hospital on 15.7.2014. Immediately after the accident, the brother of the deceased has given complaint to the police. The police have filed FIR as per Ex.P-1. The police have drawn mahazar. It is very clear from the Mahazar Ex.P-6 and Ex.P5 sketch. The accident occurred in Koramangala 15
- Sarjapur road. The said road is a double road. Each side of the road is 30 feet, in between there is a divider. There is also 20 feet service road on north side and 8 feet footpath on both the sides of the road. The deceased was coming from north to south and the bus was coming from west side with a high speed and dashed against the deceased. The accident occurred 2 feet from north side of footpath and not in the middle of the road. If the driver of the bus has taken a reasonable care and caution he could have avoided the accident. Even in the cross examination, RW-1 has admitted that there is footpath on both sides of the road and also admitted that the accident took place infront of the hospital. He also stated that since there is a hospital, there is movement of people. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the 16 civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM (supra), the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were 17 found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
It is very clear from the above said documents and evidence of the parties, the accident occurred due to rash and negligent driving of the bus by its driver. The Tribunal has accordingly answered issue No.1 as affirmative. We do no find any error in the said finding of the Tribunal.
Re: Quantum of compensation The claimants claim that the deceased was MD of M/s. Anand Printing and Packaging Pvt. Ltd. and earning Rs.40,000/- per month and getting remuneration of Rs.30,000/- per month for consultation and professional charges from M/s.Pupa 18 Enterprises and produced Ex.P-12, certificate issued by CA but they have not proved the same. The Tribunal considering the oral and documentary evidence available on record, has rightly assessed the income of the deceased at Rs.10,000/- p.m. To the aforesaid amount, 10% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.11,000/-.
Even though the claimants i.e., wife, mother, son and daughter of the deceased are the legal representatives of the deceased, claimant No.4 is a married daughter of the deceased they have not proved that she is depending on the income of the deceased and therefore, she is not a dependent. Hence, considering that claimant Nos.1 to 3 are the dependents, 1/3rd of the income of the deceased has 19 to be deducted towards personal expenses instead of 1/4th deducted by the Tribunal.
Out of monthly income of Rs.11,000/-, if 1/3rd of the income is deducted towards personal expenses, then the actual monthly income comes to Rs.7,333/-. The deceased was aged about 56 years at the time of the accident and multiplier applicable to his age group is '9'. Thus, the claimants are entitled to compensation of Rs.7,91,964/- (Rs.7,333*9*12) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium', claimant Nos.3 and 4, children are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium' and claimant Nos.2, mother of the deceased is entitled for 20 compensation of Rs.40,000/- under the head 'loss of filial consortium' .
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
9. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 791,964
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Filial consortium 40,000
Loss of Parental 80,000
consortium
Total 981,964
The claimants are entitled to a total
compensation of Rs.9,81,964/-.
The compensation of Rs.10,96,500 awarded by the Tribunal is reduced to Rs.9,81,964/-. 21
The Corporation is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE DM/-