Karnataka High Court
Manager vs Smt Manomaya Lama @ Tamang @ Bomjan on 23 April, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
MISCELLANEOUS FIRST APPEAL NO.6223 OF 2016 (MV)
BETWEEN:
Manager
Shriram General Insurance Co Ltd.,
# 302, III Floor, S & S Corner Building
Opp: Bowring & Lady Curzen Hospital
Shivajinagar, Bangalore
Now represented by
Deputy Manager Legal
Shriram General Ins. Co. Ltd.,
# 5/4, 3rd Floor, S V Arcade
Bilekahalli Main Road, Off: B.G.Road
IIM Post, Bengaluru - 560 076. ... APPELLANT
(By Sri.Shivakumar M.V., for Sri.A.N.Krishna Swamy,
Advocates)
AND:
1. Smt.Manomaya Lama @ Tamang @ Bomjan
W/o Madan Lama
Now aged about 46 years
2. Madan Lama @ Madan Tamang @ Bomjan
S/o late Man Bahadur Lama
Now aged about 55 years
3. Kalpana Tamang @ Bomjana
2
@ Kalpana Lama
D/o Madan Lama
Now aged about 23 years
4. Dombaru Tamang @ Dambaru
Bomjan @ Dambaru Lama
S/o Madan Lama
Now aged about 25 years
All r/a Golia Village
Post Office Panibharal
Police Station Biswanath Chariali
Sonitpur District, Assam - 784 176.
5. Managing Director
BMTC, K H Road
Shanthinagar
Bangalore - 560 027.
6. Venkata Reddy B
S/o Bacha Reddy, Major
C/o Byre Gowda
No.231, Abhiman Nilaya
II Cross, B.K.Layout
Vidyaranyapura Post, Thindlu
Bangalore - 560 097. ... RESPONDENTS
(By Sri.D.Vijayakumar, Advocate for R5
Sri.L.T.Gopal, Advocate for R1 to R4
R-6 - notice dispensed with vide order dated 23.4.18)
This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 08.07.2016 passed in MVC
No.2293/2015 on the file of the Member, Principal MACT,
Bangalore awarding compensation of Rs.16,09,400/- but the
petitioner herein is liable to pay Rs.11,26,580/- with interest
@ 9% p.a. from the date of petition till realization.
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This MFA coming on for Orders, this day, the Court
delivered the following:
JUDGMENT
The present appeal has been preferred by the appellant- insurer being aggrieved by the judgment and award passed by the Member, Principal MACT, Bangalore in MVC No.2293/2015 dated 08.07.2016.
2. Heard. Though the appeal is listed for orders, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
3. Brief facts of the case are that:
On 08.05.2015, at about 5.30 p.m. Krishna Bomjan @ Krishna Tamang @ Krishna Lama was proceeding on a motorcycle bearing registration no.KA-05/JB-5808 from Koramangala towards HSR Layout and when he came near 14th Main Road, opposite to Vandana Apartments, at that time, a Meru Cab bearing registration No.KA-41/A-6608 which was proceedings in front of the said motorcycle, suddenly stopped the said car on the middle of the road and opened the 4 right side door of the car, as a result of which, victim having come in contact with the door of the said car, fell on the road towards right side and at the same time, a BMTC bus bearing registration No.KA-41/FA-1330, which was coming behind the said motorcycle ran over him and Krishna Bomjan died at the spot due to the injuries sustained by him in the said accident.
4. It is the contention of the petitioners that the deceased was hale and healthy and was working as a Delivery Boy at Empire Hotels and getting a salary of Rs.10,000/- p.m. For having lost the bread earner, mother, father, sister and brother filed the claim petition claiming compensation.
5. In response to the notice, respondent No.1 filed the objections by denying the contents of the petition. He further contended that the said petition is not maintainable. There is no negligence on the part of the driver of the BMTC bus. It is further contended that the deceased was responsible for the accident, since he was not diligent in riding the motorcycle. It is further contended that the claim petition 5 is speculative in nature. It is further contended that the victim who was proceeding on the motorcycle came to the middle of the road and dashed against the car and the bus and therefore, there is no negligence on the part of the driver of the BMTC bus. It is further contended that the deceased was not holding valid and effective driving licence and he has also contributed to the alleged accident. On these grounds, he prays for dismissal of the claim petition.
6. Respondent No.3 by denying the contentions of the petition contended that the driver of the car was driving the same without valid and effective driving licence and further, the car was not holding valid permit and hence, respondent No.3 is not liable to pay any compensation. It is further contended that there is no negligence on the part of the driver of the car and the unfortunate accident occurred on account of rash and negligent riding of the motorcycle by the deceased. On these grounds, he prays for dismissal of the said petition.
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7. Though respondent No.2 appeared, has not filed any written statement. On the basis of the above pleadings, the Tribunal framed the following issues:
"1) Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 08.05.2015 at about 05.30 p.m., on 14th Main Road, near Vandana Apartments, HSR Layout, Bengaluru within the jurisdiction of Madivala Traffic Police Station on account of rash and negligent driving of the Meru Cab bearing registration No.KA-41/A-6608 and BMTC bus bearing registration No.KA-01/FA.1330 by its driver?
2) Whether the respondent No.3 proves that the accident occurred on account of negligent act of the deceased and the driver of the bus?
3) Whether the respondent No.1 proves that the accident has occurred on account of the negligent act of the deceased himself?
4) Whether the Petitioners are entitled for compensation? If so, how much and from whom?
5) What Order?"
8. In order to prove the case of the prosecution, petitioner No.1 came to be examined as PW-1 and they also 7 got examined two more witnesses as PWs.2 and 3 and marked Exs.P1 to P22.
9. After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the appellant/insurer is before this Court.
10. The main grounds urged by the learned counsel for the appellant in his appeal memo as well as during the course of his arguments are that the Tribunal has erred in adding 50% of the future prospects though he is not entitled to the same. He further contended that the deceased himself contributed to the alleged accident. The Tribunal has not assessed the contributory negligence made on the part of deceased himself. He further contended that the compensation awarded under various heads is on the higher side including the conventional heads. On these grounds, he prays for allowing the appeal by setting aside the impugned judgment and award passed by the Tribunal. 8
11. Per contra, the learned counsel for the respondent vehemently argued by contending that the deceased was working as a Delivery Boy in Empire Hotels and was having permanent income and he has also produced the salary certificate and have got examined PW-2. Keeping in view the said facts, the Tribunal has rightly taken 50% of the income towards future prospects and has awarded the just compensation. He further contended that the compensation which has been awarded on the conventional head is also just and proper. There are no grounds to allow the appeal. On these grounds, he prays for dismissal of the appeal.
12. The accident in question is not in dispute, so also, the involvement of the offending vehicle insured with the respondent-insurer. First contention of the learned counsel for the appellant is that the deceased who was riding the motorcycle has also contributed negligence to the alleged accident. The Tribunal without considering the said fact and without giving any finding regarding conventional heads on the part of the deceased has held that the appellant is liable to 9 the extent of 70% and BMTC to the extent of 30% which is not sustainable in law.
13. As could be seen from the judgment and award passed by the Tribunal in order to substantiate the fact that the alleged accident has taken place due to rash and negligent act of the driver of the car, petitioners got examined PW-1 and PW-3. It is the contention of the petitioners that when the deceased was proceeding on his motorcycle and when he came near Vandana Apartments, a Meru Cab which was proceeding in front of the said motorcycle suddenly stopped the vehicle on the middle of the road and opened the right side door of the car, as a result of which, victim having come in contract with the door of the said car, fell on the road towards right side and at that time, BMTC bus which was coming behind the motorcycle ran over him and caused the death.
14. Petitioners have got examined PW-3 who is said to be an eye witness to the alleged accident. In his evidence, he 10 has deposed that he was proceeding as a pillion rider on another motorcycle and when they reached near the place of accident, car bearing registration No.KA-05/JB-5808 which was proceeding on the middle of the road, suddenly stopped without any indicator and driver of the said car opened the right side door of the car and the same was touched to the motorcycle, as a result, the said motorcyclist fell down, at that time, BMTC bus, which was coming behind the motorcycle, ran over the rider of the motorcycle and he died at the spot.
During the course of his cross-examination, nothing has been elicited so as to discard his evidence.
15. The respondents have also got examined RW-1 and during the course of cross-examination of the said witness, it is suggested that the car was suddenly stopped on the middle of the road and the driver opened the right side door of the car as a result the accident occurred. Though the said suggestion has been denied but the fact remains that the rider of the motorcycle has hit the right side door of the car and fell down and there is no any parking area in the said 11 road. However the said car was parked and he opened the door. In the light of the evidence which has been led and the criminal records which have been produced, they clearly goes to show that the alleged accident has taken place due to rash and negligent driving of the car. He has opened the right side door of the car without taking any proper care and caution, as a result of the same, rider of the motorcycle came in contact with the door of the car, fell down and at that time, BMTC bus which was coming behind the motorcycle ran over him and he died at the spot. All these clearly goes to show that the driver of the car has contributed negligence to the alleged accident to the extent of 70% and BMTC bus driver who was coming behind the motorcycle could have avoided the accident if he could have maintained a proper and safe distance as per Regulation 23 of the Motor Vehicles Regulation Rules. In that light, the Tribunal has rightly come to the conclusion that the driver of the car has contributed negligence to the extent of 70% and the driver of the BMTC bus has contributed to the extent of 30% and there is no negligence on the part of the 12 rider of the motorcycle. It also reveals from the records that if the driver of the car if he ought not to have opened the right side door of the car, the accident could not have been occurred. The driver of the car without there being any indication of signal, opened the car and he would have taken proper care and caution. In that light, the Tribunal holding contributory negligence on the part of the driver of the car to the extent of 70% and on the part of the driver of the BMTC bus to the extent of 30% appears to be just and proper. The contention taken up by the learned counsel for the appellant that the deceased also contributed negligence, no material has been produced and the same is not acceptable in law.
16. The second contention taken up by the learned counsel for the appellant is that the deceased was working in Empire Hotels and there was no evidence to add future prospects.
17. As could be seen from the evidence produced by the petitioners i.e., Ex.P8-Appointment letter, Ex.P9-Salary 13 Slip, Ex.P10-Letter of confirmation of appointment issued by Empire Ventures Private Limited and also the Transfer Certificate of the deceased issued by the Principal Chariali HS & MP School marked as Ex.P11 and even they have got examined PW-2, Proprietor of the said concern. By going through the said records, it clearly indicates the fact that the deceased was working as a Delivery Boy and drawing a sum of Rs.10,000/- p.m. Considering the said facts and circumstances of the case, the Tribunal by taking the income at Rs.10,000/- p.m., and after deduction of professional tax of Rs.200/- and after adding 50% towards future prospects and after deducting 50% towards personal expenses, has awarded an amount of Rs.14,99,400/- towards loss of dependency. Though under normal circumstances, compensation awarded appears to be justifiable but in view of decision of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi reported in AIR 2017 SC 5157, whenever a particular person is self employed and if he is below 40 years, then under such circumstances, 40% has to 14 be added towards future prospects and in that light, if the income of the deceased is taken at Rs.10,000/- p.m., and after deducting Professional Tax of Rs.200/- and after adding 40% towards future prospects, after deducting 50% towards personal expenses and after applying multiplier of 17, the claimants are entitled to an amount of Rs.13,99,440/-.
18. As could be seen from the judgment and award of the Tribunal, an amount of Rs.1,00,000/- has been awarded under the conventional heads. In view of the decision quoted supra, the claimants are entitled to an amount of Rs.30,000/- under the conventional heads. In that light, the claimants are entitled to an amount of Rs.14,29,440/- as against Rs.16,09,400/- with 6% interest p.a.
19. Accordingly, the appeal is allowed and the judgment and award passed in MVC No.2293/2015 dated 08.07.2016 by the Member, Principal Motor Accident Claims Tribunal, Bangalore is modified as indicated above. The amount in deposit may be transmitted to the Tribunal 15 forthwith and the disbursement is concerned, it should be in accordance with the award passed by the Tribunal. The remaining amount of compensation has to be deposited by the insurer-appellant within six weeks from the date of receipt of certified copy of this order.
I.A.N.1/18 does not survive for consideration. Hence, the same is dismissed.
Sd/-
JUDGE Prs*