Bangalore District Court
Bangalore Metropolitan Transport vs Sri Kumar C.V on 9 March, 2023
KABC020100452020
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
DATED THIS THE 9th DAY OF MARCH 2023
PRESENT : Smt. B.V. RENUKA, B.Sc., L.L.B.
MEMBER, PRL. M.A.C.T.
M.V.C. No. 1770/2020
PETITIONER: Bangalore Metropolitan Transport
Corporation,
Central Office, K.H. Road,
Shanthinagar, Bangalore.
Represented by its Managing Director.
(Represented by Sri M.N. Krishna,
Advocate)
Vs
RESPONDENTS:1. Sri Kumar C.V.,
S/o.Veera Kempaiah,
Aged about 36 years,
R/at # 16, Channamaraiahna Palya,
Thippagondanahalli Post,
Bangalore South 562 130.
(Exparte)
2. United India Insurance Co., Ltd.,
MO, Sunkada Katte,
No.266, Gangadharappa Complex,
SCCH-1 2 MVC No.1770/2019
Bangalore 560 091.
Policy No.0723823115p115370370
Validity 14.03.2016 to 13.03.2017.
(Represented by Sri Janardhana Reddy,
Advocate)
*******
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.45,00,000/ along with interest from the respondents on account of the damages caused to BMTC Bus bearing No. KA57F1534 in an accident.
2. Briefly stated the case of the petitioner is as follows:
That on 03.02.2017 at about 09.30 am., the driver of the BMTC bus bearing No. KA57F1534 was driving the bus on schedule route 377B/1 from Tittarahalli to Nelamangala and thereafter Kengeri Nelamangala route and dropped and picked the passenger from Thavarekere bus stand and was proceeding on Varthur bridge, at that time, the driver of the 709 Goods Tempo bearing No.KA41 A9989 drove the same at a high speed in rash and negligent manner and came from right side and dashed to SCCH-1 3 MVC No.1770/2019 the door of the driver side of the bus and caused the accident. Due to the force of the accident, the BMTC bus driver lost control and it fell down from the bridge about 15 to 20 feet height. The driver and conductor of the BMTC bus along with more than 20 passengers sustained grievous injuries. A case was registered in Crime No.33/2017 in Tavarekere Police Station. Hence, this petition for compensation.
3. In response to the notice, the respondent No.1 has not chosen to appear before the Court and he was placed exparte.
4. Respondent No.2 has appeared through its advocate and filed its written statement, wherein it has denied the entire averments of the petition. The issuance of policy in respect of Goods Tempo bearing No.KA41A9989 is admitted, but the liability is subject to the terms and conditions of the policy. The claim petition is not maintainable either in law or on facts since the petitioner has already availed the benefit of Own Damage Claim from its insurer and settled the claim as full and final and the SCCH-1 4 MVC No.1770/2019 said fact has been suppressed by the petitioner and filed the present petition to get double benefits. The alleged accident was caused due to the negligence of the BMTC bus driver as he suddenly took right turn and there is no negligence on the part of the Goods Tempo.
5. There is noncompliance of provisions of Section 134(c) of the MV Act by the respondent No.1 and the jurisdictional Police have also failed to comply with the provisions of Section 158(6) of the MV Act. The first respondent by knowingly entrusted the vehicle to be driven by a person who had no valid and effective driving licence to drive the class of vehicle and thereby he breached the terms and conditions of the policy. Further, the said vehicle was not having Permit and FC to be used in public roads. As such the second respondent has no obligation to indemnify the alleged liability of the first respondent. Hence, prays to dismiss the petition.
6. On the basis of the above pleadings, this Court has framed the following issues:
SCCH-1 5 MVC No.1770/2019
1. Whether the petitioner proves that an accident has occurred on 03.02.2017 at about 09.30 a.m., Tavarekere to Nelamangala Main Road, Varthur bridge, within the jurisdiction of Tavarekere police station on account of rash and negligent driving of the 709 Goods vehicle bearing registration No.KA41A9989 by its driver and in the said accident, petitioner's vehicle BMTC Bus bearing Reg.No.KA57F 1534 suffered damage?
2. Whether the respondent No.2 proves that the accident has occurred on account of rash and negligent driving of BMTC Bus driver?
3. Whether the petitioner is entitled for compensation? If so, how much and from whom?
4. What Order?
7. The driver of the petitioner is examined as PW1 and one witness is examined as PW2 and got marked Exs.P.1 to P.17. On the other hand, the respondent No.2 has examined its official as RW1 and got marked two documents at Exs.R.1 and 2.
8. Heard the arguments on both sides.
9. My findings on the above issues are as follows: :
Issue No.1 ... In the Affirmative, Issue No.2 ... In the negative SCCH-1 6 MVC No.1770/2019 Issue No.3 ... Partly in th affirmative, compensation of Rs.9,20,000/ from the respondents No.1 an 2.
Issue No.4 ... As per final order for the following: REASONS
10. Issue No.1 and 2 : These two issues are with reference to the rash or negligent act of driving, either on the part of the driver of the BMTC bus bearing No. KA57 F1534 or on the part of driver of 709 Goods Vehicle bearing No.KA41A9989. Therefore, to avoid repetition of facts and evidence these issues are taken together for discussion.
11. In order to prove this issue, the petitioner has adduced the evidence of its driver as PW1 and its Depot Manager as PW2 and got marked Exs.P.2 to P.7 such as FIR, complaint, panchanama, spot sketch, charge sheet along with statements and IMV report. The Administrative Officer of the second respondent is examined as RW1. P.W.1 has deposed that, on 03.02.2017 at about 9.30 a.m. he being the driver of the BMTC bus bearing No. KA57F 1534 was on schedule trip in route No.377B/1 from SCCH-1 7 MVC No.1770/2019 Thittehalli and subsequently KengeriNelamangala and when he was proceeding near Tavarekere, on Varthur bridge a 709 Goods Vehicle bearing No.KA41A9989 driven by its driver in a rash and negligent manner came from opposite direction and took right turn and dashed the front door of the BMTC bus with huge force, as such BMTC Bus pushed from bridge and the said bus fell down from 15 feet height bridge and around 20 passengers sustained injuries in the accident and BMTC bus was very badly damaged to the entire engine, body and other parts of the bus.
12. Even PW2, in his affidavit evidence has supported the above evidence of PW1. The second respondent, in its written statement has contended that the alleged accident was caused due to the negligence of the driver of BMTC bus, as he suddenly took right turn and there is no negligence on the part of the Goods Tempo in question. But in crossexamination, no suggestions were made to PWs 1 and 2 that accident occurred due to the fault of the driver of the BMTC bus and not the Goods SCCH-1 8 MVC No.1770/2019 Tempo. Even the 2nd respondent has not chosen to examine the driver of the 709 Goods Tempo in question. The 1 st respondent has remained Exparte. As such the evidence of PWs 1 and 2 with respect to the manner in which the accident took place remained unrebutted.
13. Apart from the oral evidence, the petitioner has produced FIR and complaint as per Exs.P.2 and 3, which discloses that on the basis of the complaint lodged by conductor of the BMTC bus, a criminal case has been registered against the driver of the Goods Tempo on the date of accident. The spot mahazar at Ex.P.4, reveals the state of affairs of the accident spot. Even the sketch, Ex.P.5 reveals the state of affairs of the accident spot. As per this document, the accident took place near Varthur bridge having 3 feet walls on either side of the road and the bus had dashed to the left side wall of the bridge and due to which wall collapsed and bus has fallen into a ditch and the bus was badly damaged. In Ex.P.5, the movements of BMTC bus and Goods Tempo is shown. As per Ex.P.5, BMTC bus was moving by the side of the bridge wall on SCCH-1 9 MVC No.1770/2019 left side towards Tavarekere and Goods Tempo was moving towards Nelamangala in the middle of the road. Ex.P.5 discloses that the driver of the Goods Tempo bearing No.KA41A9989 has taken his tempo suddenly to the right side of the road and has hit the driver door of the BMTC bus, due to which it has fallen into the ditch by breaking the bridge wall. Ex.P.6 is the charge sheet filed against the driver of the Goods Tempo bearing No.KA41A 9989, but the same has not been challenged by him. IMV Report at Ex.P.7 discloses the damages caused to both the vehicles involved in the accident. However, in Ex.P.7, it is mentioned that major damages are caused to BMTC bus and only two damages are caused to Goods Tempo. As discussed above, no suggestions were made to PWs 1 and 2 as to the negligent act on the part of the driver of the BMTC bus in occurrence of the accident. Hence, by considering the oral as well as documentary evidence produced before the Court, I am of the opinion that the petitioner has proved that on account of rash and negligent driving of goods vehicle by its driver accident has occurred resulting in major damages to BMTC Bus. Whereas the 2 nd SCCH-1 10 MVC No.1770/2019 respondent has failed to prove that the accident has occurred on account of rash and negligent driving of the BMTC bus driver. Accordingly, I answer issue No.1 in the affirmative and issue No.2 in the negative.
14. ISSUE No.3: PW1 in his evidence has deposed that on account of accident caused by the driver of Goods Tempo, BMTC bus was badly damaged and the entire engine, body and other parts of the BMTC Bus was damaged, as a result the BMTC sustained huge loss. As per PW1, BMTC has spent Rs.9,09,789/ towards damages which includes Rs.8,57,807/ as total material cost, overhead at the rate of 5% Rs.42,890/, labour charges for body building Rs.1,994/ , labour charges for painting Rs.3,223/, overhead at the rate of 75% Rs.3,875/ and due to the impact and due to the damages caused to the bus, the said bus was unable to complete the trip on the said date and the BMTC has suffered huge loss of Rs.31,57,830/ being the cancellation of trips kilometer between the date of accident till the date of repair of the said bus (around 1,31,445.6 kilometers) towards loss to SCCH-1 11 MVC No.1770/2019 the Corporation from 03.02.2017 till 31.08.2018 and the bus was sent to Depot for necessary repairs, due to the accident, the Corporation has to make alternative BMTC bus in the said regular route and it has sustained damages of Rs.2,00,000/ and other expenses.
15. PW2 being the Depot Manager has supported the above evidence of PW1 by stating the cost incurred to repair the damages and also the loss of income suffered by the Corporation due to the cancellation of trips. In support of their evidence, PWs1 and 2 have produced Ex.P.8 to P.16 which are the letters, job card, invoice bill, estimation of material cost and loss of income, interim compensation details, BMTC in and out registration. The official of the second respondent is examined as RW1 and she has deposed that the petitioner has not suffered loss of revenue since in the same route spare bus was running and the petitioner Corporation was getting the same revenue.
16. PW1 in his crossexamination has admitted that if there is any problem on the way in the route of any bus, then spare bus will be used for that route. Even PW2 in SCCH-1 12 MVC No.1770/2019 his crossexamination has admitted that as per their by law for each 100 buses, 4 buses will be kept as spare buses and after the accident for the same route spare bus will be provided. He has categorically stated that for the same route, alternative bus was plied and there was no loss of revenue, but in totality it was not possible for BMTC to provide service to the public as usual. From these version of PWs1 and 2, it is clear that after the accident spare bus was provided to the same route by the petitioner Corporation and there was no loss of revenue to the petitioner. Though, PW2 has deposed that it was not possible for the BMTC to provide service to the public as usual, but according to him there was no complaint for nonplying of bus to that route.
17. In view of these versions of PWs1 and 2, the letters produced by PW2 at Exs.P.9, P.10 and P.14have to be considered to decide whether those documents will help the petitioner to prove the loss of revenue on account of damages caused to the bus in accident. Exs.P.9 and P.14 are one and the same and they are issued by Depot SCCH-1 13 MVC No.1770/2019 Manager to the Divisional Officer. In these documents, it is mentioned that the damaged BMTC bus was sent for repair to Central Workshop No.I and still it was not repaired and as such from the date of accident i.e. from 03.02.2017 till 31.08.2018, the route of the said bus was cancelled and the petitioner corporation has sustained loss of income of Rs.31,57,830/. On the basis of letters, the petitioner corporation is claiming Rs.31,57,830/ towards the loss of income. Now, we have to consider whether the petitioner is entitled for the said amount as claimed.
18. As discussed above, as per the versions of PWs 1 and 2, in BMTC Depot they have 5000 buses and for each 100 buses, 4 spare buses will be kept and if there is any problem on the way in the route of any bus, then spare bus will be used for that route. As per the version of PW2, for the same route an alternative bus was plied and there was no loss of revenue, but in totality it was not possible for BMTC to provide service to the public as usual. As per his version, there was no complaint for nonplying of bus for the said route. Such being the case, in the place of BMTC SCCH-1 14 MVC No.1770/2019 Bus bearing No. KA57F1534 which was badly damaged, a spare bus has been provided to that route. Under such circumstances, I am of the opinion that there was no loss of income or revenue to the petitioner corporation on account of damages caused to BMTC bus in the accident.
19. In this regard the learned Counsel for the respondent No.2 in his arguments has relied upon the judgment in M.F.A.No.22143/2009(MV) (North West Karnataka Transport Corporation Vs. Puhpaja and another) of our Hon'ble High Court and submitted that the petitioner corporation has not sustained any loss of income as claimed in this petition.
20. In the judgment referred by the second respondent, the same issue which is before this Court was raised. His Lordship has referred Section 72(2)(xvii) of M.V.Act and Rule 69A of Karnataka Motor Vehicles Rules, 1989, with regard to grant of stage carriage permits and Maintenance of Reserve Vehicles by Transport Authority. His Lordship has observed that the above provisions would clearly indicate that when a stage carriage permit has been SCCH-1 15 MVC No.1770/2019 issued to a vehicle, the authorities would incorporate the condition that permit holder will have to have a spare vehicle or a reserve vehicle for being plied in the route in the eventuality of the vehicle issued with permit breaking down or being stationed for repair or for whatsoever reason if said vehicle is not plied. His Lordship has also observed that when the Corporation was in possession of reserve vehicles on the date of accident, it was incumbent upon it to establish that in the route where damaged bus was plying that spare vehicles had not been put to use or it has not plied. With these observations, his Lordship has dismissed the appeal by confirming the order of the Tribunal in declining to grant compensation towards revenue loss as claimed by the Transport Corporation.
21. The observations made in the above decision is aptly applicable to the present case on hand, since the facts and circumstances of the present case and also the case referred in the above judgment are one and the same. In the present case also, as per the versions of PWs 1 and 2, the petitioner Corporation was in possession of spare SCCH-1 16 MVC No.1770/2019 bus on the date of accident and one of the spare bus was plied on that route after the accident in which BMTC bus was damaged in the accident. Here, the petitioner has not established that in the route where damaged bus was plying, a spare vehicle was not plied. On the other hand, PW2, who is the Depot Manager of petitioner Corporation has categorically stated that as an alternate bus was plied in the same route, there was no loss of revenue to the petitioner Corporation. Though, he has expressed that it was not possible for BMTC bus to provide service to the public as usual, but there was no complaint for non plying of bus to that route. By considering all these aspects, I am of the opinion that the petitioner is not entitled for loss of income of Rs.31,57,830/ as claimed.
22. The petitioner has relied upon Exs.P.7, P.12 to P.14 to prove that it has sustained loss of Rs.9,09,789/ towards material cost and labour charges to repair the BMTC bus which met with an accident. In Ex.P.7 IMV Report, 10 damages are mentioned as the damages caused to BMTC bus on account of accident. As discussed in issue SCCH-1 17 MVC No.1770/2019 No.1, this Court has come to the conclusion that those damages are occurred due to the rash and negligent act on the part of Goods Tempo bearing No.KA41A9989 . Such being the case, the petitioner is entitled for cost of damages incurred to repair the BMTC bus bearing No. KA57F 1534 .
23. Ex.P.12 is the estimation bill of approximate cost incurred for repair of the BMTC Bus. As per the said bill, the total material cost was Rs.8,57,807/ and by including labour charges and other costs, total amount is shown as Rs.9,09,789/. In Ex.P.13 approximate material cost incurred is mentioned in detail by giving the cost of every spare parts which were replaced to BMTC bus. PWs 1 and 2 were crossexamined on the estimation bill. PW1 has pleaded ignorance about the details of the damages caused to the bus. However, PW2 in his crossexamination has categorically admitted that Ex.P.12 is the estimation, but he has not produced invoice to the said estimation. PW2 has given explanation for not producing the invoice by stating that as in bulk items will be purchased by their SCCH-1 18 MVC No.1770/2019 department, there will be no invoice with reference to individual bus. He has also deposed that they have no other document except Ex.P.12 estimation to show that they have purchased spare parts claimed under Ex.P.12. In view of these versions of PW2, it is clear that there will be only estimation with respect to the spare parts purchased to repair BMTC bus since there will be no invoice with reference to individual bus, when the Transport Corporation purchases the items in bulk.
24. The learned counsel for the second respondent during his arguments has relied upon a decision reported in ILR 2000 Kar. 2009 (Karnataka State Road Transport Corporation Vs. George Ninum) wherein his Lordship has held that " mere producing of documents is not sufficient to prove Special Damages. Such documents have to be proved. Mere production of document is not a proof of its contents". In that decision the ownership of the car and special damages are not proved and the author of the estimation bills and the mechanic, who repaired the vehicle SCCH-1 19 MVC No.1770/2019 were not examined and as such the above observations were made by his Lordship.
25. In the present case, the petitioner is the owner of the bus is not in dispute, but it has not examined the author of Exs.P.12 and P.13 and also the mechanic who has repaired the BMTC bus. Whether merely, on the said ground the claim petition has to be rejected is the point to be considered now. It is pertinent to note that the petitioner is not a private party, but it is a transport authority serving the public. The fact that the BMTC bus bearing No. KA57F1534 was extremely damaged in the accident which occurred due to rash and negligent act on the part of the Goods Tempo stands proved. Nowhere in the crossexamination of PW2, it is suggested that the petitioner Corporation has not spent the amount claimed in Ex.P.12 towards the repair of the said bus except making a suggestion that Ex.P.12 is a created document, though amount was not spent only to claim compensation.
26. Though the second respondent has examined its official as RW1, but RW1 except stating that the SCCH-1 20 MVC No.1770/2019 petitioner has produced only the estimation bill without producing the paid bill or final bill for repair of the damages caused, she has not seriously contended that Ex.P.12 is a created document. On the other hand, RW1 in her crossexamination, has deposed that she has no personal knowledge about the accident and she has given evidence based on the records. Here, the second respondent i.e., insurance company has not made any efforts to conduct investigation as to whether BMTC bus which was damaged in the accident was repaired by the petitioner Corporation by spending amount mentioned in Ex.P.12 or not. Such being the case, as PW2 is the Depot Manager of petitioner Corporation, I am of the opinion that he is competent to speak about Exs.P.12 and P.13. As petitioner Corporation is a public authority and not a private person, I am of the opinion that Exs.P.12 and P.13 have to be considered to decide the amount incurred by the petitioner Corporation towards the repairs of the BMTC bus.
SCCH-1 21 MVC No.1770/2019
27. As discussed above, on account of dashing of Goods Vehicle to BMTC bus, it has fallen into a ditch to a depth of 6 feet by breaking 3 feet wall of the bridge and as such major damages are caused to BMTC Bus. Such being the case, I am of the opinion that the petitioner has spent an amount of Rs.8,57,807/ towards total material cost of spare parts and other components and it has also spent Rs.42,890/ towards material cost over head charges at the rate of 5%, labour charges of Rs.1,994/ for body building , labour charges of Rs.3,223/ for painting and labour overhead at the rate of 75% i.e., Rs.3,875/. Thus, by producing Exs.P.12 and P.13 and by adducing evidence of PWs 1 and 2, the petitioner has proved that it has spent Rs.9,09,789/ towards the repair of the BMTC bus which was extremely damaged in the accident.
28. Apart from that, the petitioner has spent some amount towards towing of the vehicle from the accident spot to garage and also it has suffered loss of income only for one day i..e, on the date of accident to an extent of Rs.4,254/ as mentioned in Ex.P.10. Hence, by considering SCCH-1 22 MVC No.1770/2019 all these aspects, I am of the opinion that the petitioner is entitled for total compensation of Rs.9,20,000/ towards the repair charges of BMTC bus which was extremely damaged in the accident.
29. The second respondent in its written statement has contended that the petitioner has received the entire amount towards loss of damage and cost of repairs of the vehicle from its insurer, but without disclosing these facts, the petitioner is falsely claiming the compensation which amounts to double benefits. Except taking this contention in the written statement, the second respondent insurance company has not chosen to place any materials before the Court to prove that the petitioner has obtained own damage claim from its insurer by settling the claim as full and final settlement and as such in this claim petition, the petitioner is intending to get double benefit from the insurance company. Even nowhere, RW1 in her affidavit evidence has deposed about the petitioner Corporation receiving the amount towards the loss of damage and cost of repairs of the vehicle from its insurer. Such being the SCCH-1 23 MVC No.1770/2019 case, in the absence of any evidence in support of this contention, I am of the opinion that the second respondent insurance company has taken this contention only to avoid its liability to pay the compensation to the petitioner.
30. In view of the reasons stated above in all the petitioner is entitled for a sum of Rs.9,20,000/ with interest at the rate of 6% p.a. from the date of the petition till deposit in the Court.
31. So far as liability is concerned, the respondent NO.1 is the owner and respondent No.2 is the insurer of the Goods Tempo bearing No.KA41A9989 . The issuance of policy in favour of the first respondent with respect to the Goods Vehicle in question is admitted. Such being the case, I am of the opinion that respondents No.1 and 2 are jointly and severally liable to pay compensation of Rs.9,20,000/ to the petitioner with interest at 6% p.a. from the date of the petition till date of deposit in the Court. Accordingly, I answer Issue No.3 partly in the affirmative.
SCCH-1 24 MVC No.1770/2019
32. Issue No.4 : In view of my answers to issue Nos.1 to 3 and for the reasons stated therein, I proceed to pass the following: ORDER The claim petition filed by the petitioner is allowed in part with costs against the respondents No.1 and 2, awarding compensation of Rs.9,20,000/ (Rupees Nine Lakhs Twenty Thousand Only) with interest at 6% p.a., from the date of petition till the date of deposit in Court. The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the respondent No.2, being the Insurance Company is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, the entire compensation amount shall be released in favour of the petitioner, as the compensation amount awarded is towards damages of the vehicle belonging to public transport Authority.
SCCH-1 25 MVC No.1770/2019Advocate's fee is fixed at Rs.1,000/ .
Draw an Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 9th day of March 2023) (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : K.T.Venkatesh P.W.2 : Dayanand N.P.
Documents marked on behalf of the petitioners:
Ex.P1 : Authorisation letter
Ex.P.2 Copy of FIR
Ex.P3 : Copy of Complaint
Ex.P.4 : Copy of Spot Panchanama
Ex.P5: Copy of Spot sketch
Ex.P6 : Copy of Charge sheet along with
statements
Ex.P7 : Copy of IMV Report
Ex.P.8 Letter addressed to PSI
Ex.P.9 Letter issued by BMTC
Ex.P.10 Certified copy of job card
Ex.P.11 Authorization letter issued by Chief Law
Officer, BMTC
Ex.P.12 Invoice bill with reference to BMTC bus
SCCH-1 26 MVC No.1770/2019
bearing No. KA57F1534
Ex.P.13 Estimation of material cost
Ex.P.14 Estimation of loss of income
Ex.P.15 Interim compensation details
Ex.P.16 BMTC in and out register
Ex.P.17 Copy of Identity card of PW2
Witnesses examined on behalf of the respondents :
RW1 : R.Manjula Documents marked on behalf of the respondents:
Ex.R.1 Authorization letter
Ex.R.2 Copy of policy
(B.V.RENUKA)
Chief Judge,
Court of Small Causes &
Member, Prl. M.A.C.T.
Bangalore.