Karnataka High Court
S B Rajamani vs The Managing Director Bmtc on 13 April, 2010
Bench: N.K.Patil, H.S.Kempanna
V' A 4_ BANGALORE ~ 550 094. IN THE HIGH coURT or KARNATAKA AT BANGALORE DATED THIS THE 13% DAY OF APRIL 2o_19V_j : PRESENT : ' H A THE HON'BLE MR. JUSTTQE N. 1&1; _ " AND: . _ _ A THE I-ION'BLI3 MR. JUSTTcE H,_'S. M.F.A. No.35':?°5;'g)_Q5 (mi ' M.F.A. Pi 6;48Q3.[f26G5_ (ifixxq BETWEEN!' I 7 ~ ' 1.
SR.-EA. A' AGED . _ _ W1/o.4LT.EASAVA'RA'J SHEHAPPA RAJAMANI. Ex) MASTER, BUSHANB'. RAJAMANI, .15/0. 121', EASAVARAJ SHE]-IAPPA RAJAMANI AGED ABOII1' 13 YEARS, 'MINOR REP. 'RY HIS MOTHER
--. A AND NATURAL GUARDIAN, '--THE 3. STAPPELLANT: S. 13. RAJAMANI. VA BeTr£f~.V.ARE R/AT No.64, ' 339 MAIN, Tm CROSS. NGEF LAYOUT, 'REM 2ND STAGE. SANJAY NAGAR.
.. .APPELLANT S EBy Sri. R. CHANDRASHEKAR ADVOCATE} AND:
THE MANAGING DIRECTOR.
B.M.T.C. DIVISION, K. H. ROAD.
SHANTHINAGAR.
BANGALORE ~ 560 027.
(By. M/S ANGADI ASSOCIATES) V THIS MFA IS FILED U/Vs. ,1:I.*%3(I}.._'O'1i*"- Amt AGAINST THE JUDGMENT AND AWARD DATEIEDV 29.D'1~.O5.,V PASSED IN MVC N0.2883}'Q':2._0N THE FILE VI,"
ADDL. sca. AND MEMBER, "NIACT, BANGA.I.OE;E (SCCI-I- 2}. PARTLY ALLOWING 'ITETITIEON FOR COMPENSATION sEEK.INq . ENHANCEMENT OF COMPENSATION. " ' " .5 A IN MFA.480:3 BETWEEEI' ' ' fI--'I-IE' NIANAI;ING.'DIREeTorz, B.M.T'.{:f. DIVISION, 'K. H. ROAD, SHANT1N'AGA1R. BAN'GALOREje 53_o'»o27.
" _ '_ " , ...APPELLANT (By_M/s. ANG;AD.Iv"AS'S0'"CEATES} /. 1_ I " ' E. S'; ..I§_.fig AA IAMAN, I, " . __Lt;."BASAVARAJ SI-IEHAPPA RAJAMANI. AC_»ED_.ABoUT 34 YEARS.
2. "MASTER BI-IUSHAN B. RAJAMANI.
S/0. Lt. BASAVARAJ SHEHAPPA RAJAMANI, V AGED ABOUT 13 YEAIRS, MINOR, REP. BY HIS NA URAL GUARDIAN-MOTHER SMT. S. B. MANI.
4 7% p.a. on account of the death of deceased Basavaraj Shehappa Rajamani in the road traffic accident that occurred on 13.05.2002 at about 11.50 a.:tn.
3. It is the case of the claimants _4th_at4ii'1;he compensation awarded by the Tribunal is it requires enhancement andmh further;"----:i'ixing'--_ t},_1e"= contributory negligence of 20%V'._on part-.of is on higher side. Therefore', the._in3pugnet_iVvijndgjinentiuu and award is liable to be modified..u
4. As against the §1or'p._ora'tion has contended that 'A awarded by the Tribunai is disproportionate;Aceztcessivc and is liable to be reduced by mod.ifyinga"'the judgement 8: award and fixing the:'contributory"negligence at 20% on the part of the rorxuthe lower side. Therefore. both claimants and Corpoi'ation felt necessitated to file these appeals seeking. appropriate reliefs.
5. The brief f of the case are:
'I _»_M_w__,,_,...
( The claimants 1 and 2 are respectiveiy the Wife and minor son of the deceased Basavaraj Sheizripkpa Rajamani, who died in a road traffic accide.:i_t..i""<5ri--. day, when the deceased was traye1Iing.'i'n"'e bearing registration No.KA~28/Fa-2434...:the..1d.riirer"Ve.f the said bus drove the same iz;':a4.__1'ash and neg1ig'e:!t_ma;nnerVVVi» at high speed and took fast read. As a result of the same, the bus and the bus rah 0VelfA...}1i:i'_l1, the same, he sustained to the same in the oi the ciairnants is that the years as on the date of accidenti "He a Conductor, on a monthly salary of ahd he had another 19 years of 'i V' se:n.ri:ici1A=ss.. He Wasithevonly bread-earner of the famiiy and A.o:f'_.the death of deceased in the road traffic accidentiieithheir life has been jeopardised. '£'here'fore, the claimants have filed a claim petition under Section 166 X oiiiifotor Vehicles Act claiming compensation of Rs. 10.00 Viliakhs against Corporation.
A x M"
4
£'
6. The said claim petition had come up before the Tribunal on 29"' January 2005. The Tribvt1=n'a§ii~.._on assessment of oral and documentary evidence an=d;"--otii:er' material available on file, takingpinto coi1sid:eeratio'n_age"te and avocation of the deceased', hastAalEdwed°-thef-eclaiga petition in part and .7awa.rded_ com..p'ez;1satio1ift Rs.5,20,800/-- with interest rate~o:i'pi?°/oi:ifp.a. from the date of petitio;;:1._.":tii1 deposit. The claimants being quantum of compensatieiniiastarded have presented It/.{FA.357$/_.05_4_uV;»seeiti,n§:i.':erihancerrient of compensation and also 'soiiiugtit-.:ffor'"s:e'tting aside the finding of the Tribunaliwgtith togecontributory negligence of 20% on the 'deceased. Whereas, the Corporation has .' filed _vii!iAI<fA.:4--803/05 contending that the compensation ._aitrarded"_~»'vb_y'i.::the Tribunal is on the higher side and is liable be reduced and that fixing the tiability at 20% ~0.n__ thexpart of the deceased is on the tower side. 3 .....--v«-'*"""""""""d '7. We have heard the learned counsel for claimants and learned counsel for Corporation.
8. The submission of the learned colunselforiiithie claimants is that} the Tribunal[has"eqrIimitted«_error in fixing the contributory negligenceof_20°/eon the the deceased and the same"'c:a'nnot be 'for the' reason that the aceident'..r'o'cc_1:1rre»d.' due"'towrash and negligent driving vehicle.
Therefore, iiixed against the deceased V' he vehemently submittedputhgait aged about 41 years, as on dated grid is therefore entitled for compensation prospects also, in view of the lavalaid downhjvthep Supreme Court in the case of Sarla . lira-ma i:.1_nci"athers V/s. Delhi Transport Corporation and ~.¢:inqtfiér;_f.reported in 2009 ACJ 1298. Therefore, he submititetlgthat 30% of the monthly income has to be Artaltenias future prospects 8: should be added to the gross '._saia'ry, and after deducting 1/3"' of the same towards
--personal expenses. the Tribunal should have assessed the net income of the deceased. Further,_ the compensation awarded by the Tribunal ~,i;"u_nder conventional heads is also inadequate _ enhancement. Therefore. he MHVsubrnit't'e~di: that'-- _ the we impugned judgment and award ie._1ia'u1ee?i'te'eeeer.ir:edifie_d:. 7
9. As against this, the:learned'..counsel'»afipeiaringV' for the Corporation}."inter"'"'a.ticv/ihcontendedthat; the Tribunal has committed the liability at 200/o on t'he::pa_rt theisame is on the lower side;'' eionigieinsation awarded by the Tribuaaii_iis.'i'a;lso -~.ri'rxe._:the'--~highier side. Therefore. the sameiis l'iab1eitof"h_et niodified; .10. 4iuAftVer.c'arevfnl"' consideration of the submissions Amadetthe iileafned counsel for both parties. the 'ifolid.mri'n_Vgi »;$"oi_nts arise for our consideration:
Whether the contributory 4' negiigence of 20% fixed on the part of the deceased and 80% fixed on the part of driver of the BMTC bus is justifiable in iaw'?
(2) Whether the quantum of ._ compensation awarded by the Tribune: is gust and reasonab|e?___"-- l
11. Regarding Point No.1: _E.t. is nothiln" that V' the accident occurred on 13.05.2{)0:?._"a~t aliout When the deceased was trajfellingllinll registration No.KA--25/F-244; 'driver said bus took fast turn, in Va-....V:i*f'+$}'§/,c 3%/F1': ""n?»ll}§f'1lg¢nt manner. on account of which. the. from the bus and the é otter Iv"'Vlle""'eustained grievous injuries sarrie in the hospital. . The Trib1ir1al__ the oral and documentary evidence and material available on the file an<_fLp1acing '-reeliarice on the oral evidence of PW~2 and evidence of Exs.P«-1 to P-4 (copy of FIR, I hand-sketch, IMV report) attributed contributoirjf negligence on both the deceased and driver of the,_o'ffending vehicle in the ratio 20:80.
12. The case of the Corporation is that) the accident occurred due to the ngegiigence of the deceased , M/MM 10 himself. PW-2, a police constable, in his cross examination has deposed that he was on patrolling duty and was standing by the side of the road in the turning.
The deceased got into the bus and when he was on the foot~door, the bus moved at high speed. on ac::~n_i'1n_t~V.of which, deceased fell down and sustained . clearly stated by PW~»2 that the place'"'at--..::which'.Vthe deceased boarded the bus at a ;ilace"0..l:hér. stop. It is also stated thatsthe deceased boardgedV_Vthe when it was moving. Further;V«.l5W;2 hasstateci that he cannot say as to whether -the};-.eil" negligence on the part of "the drixier._ it emerges from his statementthat .the:'deVceEase~d tried to get into the moving bus,_.at a f)iaceV...otherl"t.han the bus stop and accident oc'e.uirre-d due to itliehrash and negligence driving by the drixfer and also due to negligence on the part of The Tribunal after assessing the oral and documentary evidence has rightly fixed the gpritributory negligence both on the part of the driver of the bus at 80% and on the part of the deceased at 20%. 11 However, having regard to the oral and documentary evidence as discussed above, particularly. taking into consideration the evidence of PW-2, we deem it--'"f_it to reassess the contributory negligence on the deceased at the rate of 30% and 70% on tl*:.e:"part:
driver of the offending vehiclve-""to--.me<et eindfs of' justice.
13. REGARDING PoINT:"No.2:V. It 'is. r:i'otu"iI4'v1'VVdissputeVV that the deceased suc'cnmbed"to:_:thes.ir1juri«es"s11'stained in the road traffic accideiniitj ;the'ic.ase"'of the claimants that deceased age:d._about._4.1:V years as on the date of accidventrandv asa conductor. As per I:3x.P-6, he was guettinvgiisaiary' oaf~I4{s.5,995/~ 13.11:. After deducting Pr,oji'ess'iona1 of Rs.100/- the net income comes to .A :Rs.:5.$i9i5/y-4vi'p,m. He had another 19 years of service. In .srViieygr oat"d"'_t'.1-re'judgment of Apex Court in Sarla Vermcfs cfie, referred supra, and as rightly pointed out by the H krarnevdiicounsel for the claimants. 30% of salary should i added to the gross salary of Rs.5.895/-- p.m. towards " »v.----future prospects. If. the future prospects at the rate of % 12 30% (Rs.1,768==50) is added to the same, the net saiary comes to Rs.7,663==50 (Rounded ojff to Rs.7,664/-). Out of which. it' 1/3"' (Rs.2.555/--} is deducted towards'». his personal expenses, the net income comes to ..R.s'.5,'_109./1.' The appropriate multipiier applicable in ti1__e'"i.ns't:anf' ease' V' is '14'. Considering ail these .aJspe'c'ts_.7We:'rede_ter'Inine compensation towards loss. of depeiadenc_r;i_'v'at' a' Rs.8.58.312/- [Rs.5,109/-- V§c=,_14.,I.aisriégainstii Rs.6,16,000/-.
14. Further, awarded just and reasonable'i'§;on1pé.nsation'"oi' 1'~is.--1--0,000/-- each under the iieads .ioss:f_of,4'e--Q_fiso:'tium and loss of estate.
Therefore,,__it does n'nt"ea_ii for interference. 1,5. ..Hov&'e'v"er;' the Tribunal is not justified in ».4"i'.::_o"r;1pensation of Rs.15.000/~ towards tr.qritVsporttz'}:_iofn & funeral expenses. The same is excessiivge, therefore, we award a sum of Rs.10,000/~ A this head. The Tribunal has not awarded any ogompensation towards loss of love and affection. L 13 Therefore, we deem it fit to award a sum of Rs.I0.000/- under this head. In all, the claimants are entitled to Rs.40,000/-- under conventional heads as against Rs.35,000/~-- awarded by the Tribunal.
16. In the result, the appeal filed by the ciailnaats is allowed in part. The appeal filed by Corporation is also allowed ihximtpart the"
contributory negligence on the part"'of: and the driver of the offendingnilfehiclellin the ratio; VA The impugned judgemeht nand"'award« passed on 29th Januavrylveiotéa ae.j'ps-:~rab.lgga; in MVC.2883/2002 is herebjlr' ~hr'eak up is as under:
1 _ (i) 'Loss .o'.-s depentlency: Rs.8,58,312/..
;_{--2bi:) p.LossVoi'c'onsortium : Rs.10,(}0O/- it " _ of estate : as.1o,ooor- _ (Vi.§().:"f of love and affection : Fis.10,000!- E .. hi it Funeral expenses & Rs.10,000X- Transportation charges :, TOTAL : F%s.8,98,312f-
14 The claimants are entitled to total compensation of Rs.8,98,312/- as against Rs.6.51,000/- awarded by the Tribunal. Out of which, if 30% [Rs.2.69.494/-J is depdncted towards contributory negligence on the part of the total compensation payable to claimants Rs.6,2!-3.818/« as against Rs.5.:;of8'oo,(-"..pawa£;iee 1;,-yin the Tribunal. The enhanced coin_pe_1V1sationr "comne_s~.,Vto_V Rs.1,08,018/~ with interest'*va.t'~..5°/e p.a.. Vi'r.on_1 'date of petition till the date of reaisiationi' The Corporation his' di;rectti§.d:...,vito deposit the enhanced corripensation with interest at 60/§.._Ap.a.' period of four weeks from the date of receipt o'f._copyix'of jpiidgment and award. usuch""d.e_pc~sit by the Corporation. a sum of ' with proportionate interest shall be kept in in the name of the first claimant in any Natiorialised or Scheduled Bank, for a period of five 'years.V"renewab§e by another five years, with permission i'V--Vfor"her to withdraw the interest periodically. 15 The remaining sum of Rs.48,G 18/- "with proportionate interest shall be released in fa#.ro1:r':'_o'f'Vjtlie first and second claimants irnmediatelyh_oi1._deposit V' the Corporation.
The statutory amount e1'e_posite.dA'A' " byv 'the Corporation shall be transferred to*.t_l1'eofurisdiotionai Tribunal, forthwith. V Office is directed 'draw; th<§;éu}_ar'd'accordingly. ,,,§%.=,,.,3,;vi,,«§§,.n,§ ,3 Sfif ?€.§§"'§%f;:§% % ;