Karnataka High Court
The Managing Director vs Vimala on 24 April, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:16473
MFA No. 1403 of 2020
C/W MFA No. 4854 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 1403 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4854 OF 2020 (MV-D)
IN MFA NO.1403/2020:
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
K.H.ROAD, SHANTHINAGAR
BENGALURU - 560 027
...APPELLANT
(BY SRI D.VIJAYAKUMAR, ADVOCATE)
AND:
1. VIMALA
W/O.SRINIVAS
AGED ABOUT 41 YEARS
2. SRI SRINIVAS
Digitally
signed by B S/O.LATE SHAMANNA
LAVANYA AGED ABOUT 52 YEARS
Location:
HIGH BOTH ARE R/AT
COURT OF NO.55, 1ST CROSS
KARNATAKA
CHIKKATHIGALARAPETE
HOSAKOTE TOWN
BENGALURU RURAL DISTRICT
...RESPONDENTS
(BY SRI GOPALA KRISHNA N., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET-ASIDE THE
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NC: 2024:KHC:16473
MFA No. 1403 of 2020
C/W MFA No. 4854 of 2020
JUDGMENT AND AWARD DATED 02.11.2019 PASSED IN MVC.
NO.6951/2018 BY THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES (SCCH-14), BENGALURU.
IN MFA NO.4854 OF 2020:
BETWEEN:
1. SMT.VIMALA
W/O.SRINIVAS
AGED ABOUT 42 YEARS
2. SRI SRINIVAS
S/O.LATE SHAMANNA
AGED ABOUT 53 YEARS
BOTH ARE R/AT
NO.55, 1ST CROSS
CHIKKATHIGALARAPETE
HOSAKOTE TOWN
BENGALURU RURAL DISTRICT
...APPELLANTS
(BY SRI. GOPALA KRISHNA N., ADVOCATE)
AND:
THE MANAGING DIRECTOR
BENGALURU METROPOLITAN
TRANSPORT CORPORATION
K.H.ROAD, SHANTHINAGAR
BENGALURU - 560 027
...RESPONDENT
(BY SRI D.VIJAYAKUMAR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 02.11.2019 PASSED IN MVC.
NO.6951/2018 BY THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES (SCCH-14), BENGALURU.
THESE APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:16473
MFA No. 1403 of 2020
C/W MFA No. 4854 of 2020
JUDGMENT
MFA.No.1403/2020 is preferred by the Bengaluru Metropolitan Transport Corporation (for short, 'the Corporation') and MFA.No.4854/2020 is preferred by the claimants questioning the judgment and award dated 02.11.2019 passed in MVC.No.6951/2018 by the Court of XVI Additional Judge, Court of Small Causes, Member and MACT, Bengaluru (for short, 'the tribunal').
2. The appeal preferred by the Corporation is on the premise of exorbitant compensation being awarded by the tribunal and consequently, seeking to set-aside judgment and award passed by the tribunal being erroneous and to fix the liability of 50% and more as against the deceased, whereas, the appeal preferred by the claimants are founded on the premise of inadequate and meager compensation awarded by the tribunal.
3. Parties to the appeals shall be referred to as per their status before the tribunal.
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020
4. Brief facts of the case are as under:
On 26.10.2018 at about 1.00 p.m., one Kumari Chaithra boarded a BMTC Bus bearing registration No.KA-01-FA-2006 at Koramangala Water Tank Bus stop to go towards her house. While she was still boarding the said bus, the driver of the Bus drove the same in a rash and negligent manner in high speed towards Krupanidhi College and suddenly applied brake and again moved the same in a rash and negligent manner without closing the hydraulic door. Due to which, the said Kumari Chaithra lost balance due to jerk and jolt taken by the Bus and fell down on the road from the said Bus. She sustained grievous injuries and she was immediately shifted to Sakra World Hospital, where she underwent surgery. But, despite best efforts by the Doctors, she succumbed to the injuries on 28.10.2018.
4.1 It is stated that the deceased Chaithra was aged 18 years and was studying in I year B.E. of Computer Science at Vemana Institute of Technology, Bengaluru. It -5- NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 is further stated that she was a bright student and the claimants are the parents of the two female daughters. One of them is deceased Chaithra, who is the elder daughter, who was going to be a bread winner of her family in future. The rash and negligent act of the driver of the BMTC Bus destroyed the entire peace and tranquility of the parents and sister of the deceased Chaithra, so also, the ambition and hope that Chaithra would be a good Engineer in the field of Computer Science and earning income, thereby she would support her family. Hence, they filed a claim petition seeking compensation.
4.2 On service of notice, the Corporation filed its written statement denying the entire claim of the claimants including age and also denied that she would go on to earn high income because of Engineering decree, which she would have completed as planned and also denied the negligence attributed as against the driver of the Bus. It has pleaded that the accident occurred due to the sole negligence of the deceased Chaithra, who -6- NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 attempted to get down from the Bus in a traffic signal junction and lost control, fell down and sustained injuries and succumbed to the same. Therefore, she herself contributed to the occurrence of accident, which leads to the death. It has also denied that she would have gone on to earn Rs.15,000/- per month. On these grounds, sought for dismissal of the claim petitions.
4.3 On the basis of pleadings, the tribunal framed the relevant issues for consideration.
4.4 In order to substantiate the issues and to establish the case, claimant No.1 got examined herself as PW.1 and got examined another witness as PW.2 and got marked documents as Exs.P1 to P12. On the other hand, the Corporation got examined a witness as RW.1, however, not got marked any document.
4.5 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal awarded -7- NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 compensation of Rs.14,96,000/- with interest @ 7% p.a and fastened contributory negligence of 10% as against the deceased Chaithra and 90% as against the driver of the Bus.
4.6 Being aggrieved by the same, the Corporation is also before this Court seeking to set aside the judgment and award passed by the tribunal on the ground of the same being arbitrary, illegal and contrary to the material evidence available on record and the claimants are before this Court seeking enhancement of compensation.
5. Learned counsel for Corporation vehemently contends as under:
The compensation awarded by the tribunal is extremely on the higher side. The assessment made by the tribunal with regard to income is higher side. The tribunal fastened the contributory negligence of 10% as against the deceased Chaithra, which is on the lower side and the same ought to have been 50%, as the deceased contributed more for occurrence of accident. Hence, on -8- NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 these grounds, he contends that the compensation requires to be drastically reduced by increasing the contributory negligence.
6. Learned counsel for claimants vehemently contends as under:
The tribunal awarded inadequate compensation and has taken the assessment of income in a irrational manner, which is on the lower side, so also, the contributory negligence fastened as against the deceased at 10% is unwarranted and erroneous and the same requires to be set-aside. On these grounds, he seeks to allow his appeal.
7. Having given my thoughtful consideration to the thought provoking argument put-forth by learned counsels for both sides, this Court will have to take a pragmatic view in deciding these kind of matters of occurrence of road traffic accident, wherein, an young girl of 18 years who is a budding Engineering student of Computer Science -9- NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 dies in a road traffic accident. Hence, the points for consideration would be:
"i) What should be the income that has to be taken and what is an yardstick to be considered for the same?
ii) Whether the contributory negligence is required to be fastened and if so, what percentage?"
8. It is not in dispute that the deceased Chaithra was aged 18 years and had joined I year Degree Engineering at Vemana Institute of Technology. It is borne from the records that the deceased had cleared her SSLC with 'A' grade and passed her II PUC with I class and having forethought of doing Computer Science Engineering, she secured her admission in Vemana Institute of Technology for pursuing her dreams of becoming a Computer Engineering. But unfortunately, on the fateful day, neither the deceased nor her friends or parents would have anticipated the unfortunate death when she boarded the Bus to get back home from the College. The Bus, in which, she got into to come back to home, admittedly, had a
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 hydraulic door which was not closed and due to the sudden jerks and jolts, she fell down when she was at the entrance of the Bus and sustained injuries and succumbed to the same later.
9. The negligence has been proved and established as against the driver of the Bus by the Police records i.e. FIR and chargesheet laid against him, so also, by virtue of examination and cross-examination, it is seen that he has not closed the hydraulic door of the Bus while it was in movement/motion. Therefore, in my opinion, the negligence has been rightly attributed as against the driver of the Bus on the basis of material evidence.
10. Now coming to the aspect of age, avocation and income that the deceased would have earned for awarding compensation, the tribunal has assessed the income of the deceased to be Rs.10,000/- per month. However, learned counsel for claimants vehemently contends that the income has to be awarded on the higher side as the deceased was I year Engineering student. He has relied
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 upon the judgment of Division Bench of this Court in MFA.Nos.101116/2017 C/w 103969/2016 (Decided on 16.12.2020), to contend that Rs.18,000/- per month has to be taken as income, whereas, learned counsel for Corporation vehemently contends that the income cannot be taken at Rs.18,000/- per month and less than the notional income has to be taken as the deceased was only I year Engineering student and not completed any course and moreover, it is not the case of the claimants that she was working and earning any income. Under the circumstances, for a student, the income cannot be taken at Rs.18,000/- per month or anything more than the notional income.
11. Having considered the aforesaid arguments of both learned counsels, the Division Bench of this Court (of which I am a Member) in its earlier judgment in the case of Shri Mallikarjun, S/o.Yallappa Vs. Shri Umesh M., S/o.Murthy K. reported in 2020 0 SUPREME (KAR) 104, while dealing with the similar situation of an
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 Engineering student of III year, by relying upon the judgments of the Hon'ble Apex Court in the cases of Ashwinbhai Jayantilal Modi Vs. Ramkaran Ramachandra Sharma and another reported in (2015)2 SCC 180 and S.Saraswathy and another Vs. A.Elumalai and another reported in 2017 ACJ 1036, has taken the income of Rs.25,000/- per month for an Engineering student.
12. Under the circumstances, even in the present case, which is not much different from the one earlier decided by the Division Bench in the case of Shri Mallikarjun stated supra, this Court is of the opinion that Rs.25,000/- per month would be just and reasonable to take as income of the deceased Chaithra. The tribunal awarded 40% towards future prospects and deducted 50% towards personal and living expenses, which do not call for interference and the same are retained. It is seen that the deceased was admittedly aged 18 years as on the date of occurrence of accident and the appropriate multiplier is
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 '18', which is rightly applied by the tribunal and the same is retained. Therefore, the claimants would be entitled to the compensation of Rs.37,80,000/- (Rs.25,000/- + 40% = Rs.35,000/- - 50% = Rs.17,500/- x 12 x 18) towards loss of dependency as against Rs.15,12,000/- awarded by the tribunal.
13. The tribunal awarded Rs.80,000/- towards medical expenses, Rs.15,000/- towards transportation of dead body and funeral expenses and Rs.15,000/- towards loss of estate, which do not call for interference and the same are retained.
14. The tribunal awarded Rs.40,000/- towards filial consortium, whereas, there are two claimants. Therefore, each claimants would be entitled to Rs.80,000/- (Rs.40,000/- x 2) under this head and 10% escalation for one block period on the same to be awarded under this head, which would come to Rs.88,000/- (Rs.80,000/- + 10%).
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020
15. In view of the above, the claimants would be entitled to a total compensation of Rs.39,78,000/- as against Rs.16,62,000/- as mentioned in the table below:
Heads Amount in Rs.
Loss of dependency 37,80,000-00
Medical expenses 80,000-00
Transportation of dead body and 15,000-00
funeral expenses
Loss of estate 15,000-00
Loss of consortium 88,000-00
TOTAL 39,78,000-00
16. Coming to the aspect of contributory negligence, it is vehemently contended by learned counsel for Corporation that the accident would not have occurred, if the deceased not got into the Bus in an unauthorised place of signal junction rather than getting into the Bus at the Bus stand, so also, she ought to have got inside the Bus rather than standing on the footboard and having done so, she has contributed for occurrence of accident and negligence has to be attributed to her as well, whereas, learned counsel for claimants contends that in the present day situation and even as on the date of occurrence of accident, the Buses that came into existence were all
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 closed with the hydraulic doors and no Buses were plying without the doors as was the situation earlier. Therefore, the doors are supposed to open and close only at the Bus stand and not in the midway either at the signal light or signal junction. He also contends that a circular has been issued by the State Government to follow safety norms to avoid any kind of untoward incidents. The circular was issued in view of death of 14 years old School girl and it has to be followed in the strict sense. However, the circular has not placed before the Court.
17. Having heard both learned counsels on contributory negligence, in the present situation, this Court is of the opinion that when the driver of the Bus stopped the Bus in the Bus stand and opened the hydraulic doors, the question of the deceased getting into the Bus at an unauthorised place or signal junction would not have occurred and there would not have been any possibility for the deceased to negligently get into the Bus even if she wanted because the doors would have closed hydraulically,
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 which is operated only by the driver. Therefore, the driver of the Bus was negligent and entirely contributed for the occurrence of accident either by leaving the doors of the Bus open or having opened the doors of the Bus in an unauthorised place other than the Bus stand and thereafter, having moved the same by not closing the doors. In view of the same, this Court is of the considered opinion that in the present situation, the deceased Chaithra cannot be held negligent for having boarded the Bus. Therefore, the contributory negligence of 10% fastened as against the deceased Chaithra is liable to be set-aside and accordingly, the same is set-aside. The entire negligence is fastened on the driver of the Bus, which has to be indemnified and paid by the Corporation.
18. Learned counsel for Corporation vehemently contends that the interest awarded by the tribunal at 7% p.a. is excessive, as the Motor Vehicles Act and Rules does not contemplate the interest component. But, Section 34 of CPC prescribes 6% prevalent rate of interest. Therefore,
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NC: 2024:KHC:16473 MFA No. 1403 of 2020 C/W MFA No. 4854 of 2020 I am in agreement with learned counsel for Corporation that the interest awarded by the tribunal at 7% p.a. is required to be reduced to 6% p.a. and accordingly, it is reduced to 6% p.a.
19. Accordingly, I pass the following:
ORDER
i) The appeal preferred by the Corporation is disposed off;
ii) The appeal preferred by the claimants is allowed-
in-part;
iii) The judgment and award dated 02.11.2019 passed in MVC.No.6951/2018 by the Court of XVI Additional Judge, Court of Small Causes, Member and MACT, Bengaluru, is modified;
i) The claimants would be entitled to a sum of Rs.39,78,000/- as against Rs.16,62,000/-;
ii) The interest component is reduced to 6% p.a. as against 7% p.a. awarded by the tribunal from the date of petition till its realisation;
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iii) The balance compensation amount shall be paid by the Corporation within a period of four weeks from the date of receipt of a copy of this judgment;
iv) The amount in deposit, if any, along with statutory deposit before this Court shall be transmitted to the jurisdictional tribunal forthwith;
v) The original records, if any, shall be transmitted to the jurisdictional tribunal forthwith;
iv) All other terms and conditions stipulated by the tribunal shall stand intact and undisturbed.
Sd/-
JUDGE LB List No.: 1 Sl No.: 59