Karnataka High Court
The Managing Director vs Smt Sunitha H V on 19 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:28256
MFA No. 6021 of 2016
C/W MFA No. 948 of 2017
MFA No. 949 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6021 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 948 OF 2017(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 949 OF 2017(MV-I)
IN MFA NO. 6021 OF 2016
BETWEEN:
S. N. RAMA MURTHY
S/O NARAYANAPPA
AGED 39 YEARS,
R/AT SHETTIGERE VILLAGE,
DODDAJALA POST,
BENGALURU NORTH - 561 501
...APPELLANT
(BY SRI. SRIDHAR D S, ADVOCATE)
AND:
THE MANAGING DIRECTOR
B.M.T.C. K. H. ROAD
SHANTHINAGAR
BENGALURU - 560 027
Digitally signed
by RAMYA D ...RESPONDENT
Location: HIGH (BY SRI. K NAGARAJA, ADVOCATE)
COURT OF
KARNATAKA
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED20.07.2016 PASSED IN MVC
NO.284/2015 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE, & XXVIII ACMM, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 948 OF 2017
BETWEEN:
THE MANAGING DIRECTOR
B M T C.,
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NC: 2024:KHC:28256
MFA No. 6021 of 2016
C/W MFA No. 948 of 2017
MFA No. 949 of 2017
K H ROAD, SHANTHINAGAR,
BANGALORE 27
(RC OWNER OF BMTC BUS
NO.KA-50-F-085)
NOW THROUGH
CHIEF LAW OFFICER
BMTC, BANGALORE
...APPELLANT
(BY SRI. NAGARAJA K, ADVOCATE)
AND:
1. SMT. SUNITHA H V
W/O SRI. S.N.RAMAMURTHY
AGED ABOUT 31 YEARS,
R/AT SHETTIGERE VILLAGE,
DODAJALA POST,
BENGALURU NORTH - 562 157
2. SRI. MANJUNATHA S N
S/O. NARAYANAPPA
AGED MAJOR
R/AT SHETTIGERE VILLAGE,
DODDAJALA POST,
BENGALURU NORTH - 562 157
RC OWNER OF THE HERO
HONDA PASSION PLUS MOTOR
CYCLE NO.KA-50-H-2436
3. IFFCO TOKIO GENERAL INSURANCE
CO LTD.,
BY ITS MANAGER
SRI. SHANTHI TOWERS,
V FLOOR, NO.141, 3RD MAIN,
EAST TO NGEF LAYOUT,
KASTURINAGAR
BENGALURU - 560 043.
4. SRI. S.N. RAMA MURTHY
S/O NARAYANAPPA
MAJOR,
R/O SHETTIGERE
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NC: 2024:KHC:28256
MFA No. 6021 of 2016
C/W MFA No. 948 of 2017
MFA No. 949 of 2017
DODDAJALA POST,
BENGALURU NORTH - 562 157
(RIDER OF THE MOTOR CYCLE
REGN NO.KA-50-H-2436)
...RESPONDENTS
(BY SRI. D S SRIDHAR ADVOCATE FOR R1;
SRI. B. PRADEEP ADVOCATE FOR R3;
R4 SERVED AND UNREPRESENTED;
V/O DATED 28.11.2017, NOTICE TO R2 IS DISPENSED
WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED8.11.2016 PASSED IN MVC
NO.2191/2014 ON THE FILE OF THE VIII ADDITIONAL SENIOR
CIVIL JUDGE AND XXXIII ACMM MEMBER-MACT, BENGALURU,
AWARDING AMOUNT OF RS. 5,18,000/- WITH INTEREST AT
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO. 949 OF 2017
BETWEEN:
THE MANAGING DIRECTOR
B M T C,
K H ROAD, SHANTHINAGAR
BANGALORE 27
(RC OWNER OF BMTC BUS
NO.KA-50-F-085)
NOW THROUGH
CHIEF LAW OFFICER
BMTC, BANGALORE
...APPELLANT
(BY SRI. NAGARAJA K, ADVOCATE)
AND:
1. SMT. SUNITHA H V
W/O SRI. S.N.RAMAMURTHY
AGED ABOUT 31 YEARS,
R/AT SHETTIGERE VILLAGE,
DODAJALA POST,
BENGALURU NORTH - 562 157
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NC: 2024:KHC:28256
MFA No. 6021 of 2016
C/W MFA No. 948 of 2017
MFA No. 949 of 2017
2. SRI. MANJUNATHA S N
S/O. NARAYANAPPA
AGED MAJOR
R/AT SHETTIGERE VILLAGE,
DODDAJALA POST,
BENGALURU NORTH - 562 157
RC OWNER OF THE HERO
HONDA PASSION PLUS MOTOR
CYCLE NO.KA-50-H-2436
3. IFFCO TOKIO GENERAL INSURANCE
CO LTD.,
BY ITS MANAGER
SRI. SHANTHI TOWERS,
V FLOOR, NO.141, 3RD MAIN,
EAST TO NGEF LAYOUT,
KASTURINAGAR
BENGALURU - 560 043.
4. SRI. S.N. RAMA MURTHY
S/O NARAYANAPPA
MAJOR,
R/O SHETTIGERE
DODDAJALA POST,
BENGALURU NORTH - 562 157
(RIDER OF THE MOTOR CYCLE
REGN NO.KA-50-H-2436)
...RESPONDENTS
(BY SRI. D S SRIDHAR ADVOCATE FOR R1;
SRI. B. PRADEEP ADVOCATE FOR R3;
R4 SERVED AND UNREPRESENTED;
V/O DATED 28.11.2017, NOTICE TO R2 IS DISPENSED
WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED08.11.2016 PASSED IN MVC
NO.2192/2014 ON THE FILE OF THE VIII ADDITIONAL SENIOR
CIVIL JUDGE AND XXXIII ACMM, MEMBER- MACT, BENGALURU
AWARDING AMOUNT OF RS.1,00,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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NC: 2024:KHC:28256
MFA No. 6021 of 2016
C/W MFA No. 948 of 2017
MFA No. 949 of 2017
THESE APPEALS, COMING ON FOR ARGUMENTS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
(PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR) MFA No.6021/2016 is filed by the claimant questioning 30% negligence attributed on part of the driver of the Motor Cycle bearing registration No.KA-50 H- 2436 and also for enhancement of compensation.
2. MFA No.948/2017 and MFA No.949/2020 are filed by the BMTC, questioning the attribution of entire rash and negligence on part of the driver of BMTC Bus bearing registration No.KA-50 F-085.
3. Brief facts as stated by the claimants in this case are that on 12.12.2013 at 5:00 p.m. while the claimant was riding the Motorcycle bearing registration No.KA-50 H-2436 on Bellari Bengaluru Road, in front of Jakkur Aerodrome, Yelahanka, Bengaluru from Shettigere towards Sanjayanagar along with his wife and minor son from North to South direction, at that time a BMTC Bus -6- NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 being driven by its driver with high speed and in a rash and reckless manner in the same direction, suddenly stopped on the middle of the road, without giving any caution and signal to the vehicles coming from backside of the said BMTC Bus. Due to such sudden stoppage of the Bus on the middle of the road, the Motorcycle ridden by the claimant was compelled to dash the back side of the BMTC Bus due to such impact the minor son of 3 year old boy had sustained fatal injuries and the claimant and his wife have also sustained injuries. Therefore, the claimant has filed a claim petition for claiming compensation under Section 166 of the Motor Vehicles Act.
4. In the claim petition in MVC No.2784/2015 filed by the claimant-rider of the Motorcycle, the Tribunal has awarded compensation of Rs.99,430/- but attributed 30% negligence on part of the claimant-rider of Motorcycle and accordingly awarded compensation of Rs.69,601/- along with interest at the rate of 6% per annum. -7-
NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017
5. In the claim petition in MVC No.2191/2014 and MVC No.2192/2014 filed by petitioner No.2, the Tribunal has not attributed any rash and negligence on part of the rider of the Motorcycle and entire rash and negligence is attributed on part of the driver of the BMTC Bus.
6. The claimant in MVC No.2784/2015 has filed MFA No.6021/2016 questioning 30% of negligence attributed on part of the claimant and also for enhancement of compensation.
7. Against the judgment and award passed by the Tribunal in MVC No.2191/2014 and MVC No.2192/2014, the BMTC has preferred these two appeals by taking contention that the Tribunal has not attributed any negligence on part of the rider of the Motorcycle.
8. Upon hearing submissions of the learned counsels appearing for the appellant and respondent, the point that would arise for my consideration is as follows: -8-
NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 "Whether, under the facts and circumstances involved in the case, the accident is caused entirely due to the rash and negligent driving of BMTC Bus bearing registration No.KA-50/F-085 by suddenly stopping of the Bus on the middle of the road and thus, the driver of the said BMTC Bus is entirely rash and negligent in causing accident?"
9. Learned counsel for the appellant-BMTC Bus has submitted that the Bus was not stopped on the middle of the road, but there was Bus stop and for alighting the passengers the Bus was stopped, but the claimants were sustained injuries with rash and negligent and high speed riding of the Motorcycle and dashed the backside of the Bus. Therefore, the Tribunal has disbelieved the contention of the claimant that he is not responsible to the accident and he argued with reference to the spot mahazar, spot sketch and also with reference to the FIR and complaint that the rider of the Motorcycle was also made as co-accused along with driver of BMTC Bus. Therefore, the driver of the BMTC Bus was not completely -9- NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 rash and negligent, but the rider of the Motorcycle has also contributed his negligence in the accident.
10. Learned counsel for the appellant-BMTC has placed reliance on the following judgments of Hon'ble Supreme Court:
i. NISHAN SINGH & OTHERS vs. ORIENTAL INSURANCE COMPANY LTD., reported in AIR 2018 SC 2118 ii. RAJ RANI & OTHERS vs. ORIENTAL INSURANCE COMPANY LTD., & OTHERS reported in 2009 (13) SCC 654
11. On the other hand, learned counsel for the appellant-claimant submitted that the driver of the BMTC Bus has suddenly stopped the Bus on the middle of the road and there is no bus stop so as to alight the passengers. This shows the rash and negligence in driving of the BMTC Bus and it is rightly considered by the Tribunal in MVC No.2191/2014 and MVC No.2192/2014 but in MVC No.2784/2015, it is wrongly observed that the
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 rider of the Motorcycle has contributed 30% of rash and negligence. Further, he argued with reference to the spot mahazar and spot sketch which show that the Bus was stopped on the middle of the road suddenly, without giving any signal and caution, resulting into the accident. Therefore, he prays for modification of judgment and award passed in MVC No.2784/2015.
12. Upon considering the complaint and FIR-Ex.P.1, wherein it is stated that the driver of the BMTC Bus has suddenly stopped the Bus on the middle of the road. Though in the FIR the claimant-rider of the Motorcycle is also arrayed as co-accused, but the complaint and FIR reveals that the driver of the BMTC Bus had suddenly stopped the Bus on the middle of the road. Ex.P-2 is the spot mahazar and spot sketch, which prove that the BMTC Bus was stopped on the middle of the road. These two spot mahazar and spot sketch reveal that there is no bus stop so as to stop the bus for alighting the passengers. There are service roads on either side of the National
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 Highway; the road is leading from Ballari to Bengaluru opposite to Jakkur Aerodrome, Yelahanka, Bengaluru, but the spot sketch reveals that there is no Bus stop near the spot of the accident; the spot sketch reveals that stoppage of the Bus on the middle of the road. In the course of the cross-examination, the driver of the BMTC Bus who is examined as RW-1 has admitted that the bus was stopped on the middle of the road and there is no explanation by RW-1-driver of the BMTC Bus, why he has stopped the Bus on the middle of the road. Further, the charge sheet is filed against the both the driver of BMTC Bus and rider of the Motorcycle. Therefore, considering and appreciating all the material on record discussed above, it is proved that the accident is caused due to the rash and negligent driving of the BMTC Bus.
13. The contents in the charge sheet are not binding on this Court while appreciating evidence. In these nature of cases, filing of charge sheet is meant whether he is guilty of the offence or not, but upon considering the
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 total circumstances and upon appreciating evidence on record, it is proved that the entire negligence is on the part of the driver of BMTC Bus. Therefore, the accident is caused due to rash and negligent driving of the BMTC Bus and he has stopped the Bus on the middle of the road and for which there is no explanation from the driver of the BMTC Bus. Though it is contended that there was sufficient space towards right side of the BMTC Bus, quite naturally the road is National Highway and busy road leading from Bellari to Bengaluru. Just because there is sufficient space towards right side of the bus does not mean that the driver of the BMTC Bus is supposed to stop the Bus on the middle of the road.
14. Even the Regulation 17 of Karnataka Motor Vehicle Regulations, 2017, says to maintain safe distance between two vehicles, but the present accident is caused in Bengaluru City. Therefore, when bigger vehicle-Bus is being plied, the driver shall have to take care and caution while driving the bus and taking turn and while turning the
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 Bus in the city it is not possible to keep distance between two vehicles above 20 ft. When the Bus enters the city, it is not possible to keep safe distance and quite naturally there is movement of the vehicles. Therefore, while considering all these scenario in the accident, the driver of the BMTC Bus was negligent in causing the accident. Just because minor boy of 3 years old might sit in front of the Motorcycle, it cannot be assumed that rider of the Motorcycle was also in rash and negligent. Under these circumstances, it cannot be held that the rider of Motorcycle is also rash and negligent. There is no explanation by RW-1-driver of BMTC Bus under what circumstances he has stopped the Bus on the middle of the road. It is also the duty cast on the driver of bigger vehicle to take every precaution and drive with carefully, but without doing so resulting into the said accident as discussed above. Therefore, the Tribunal in MVC No.2784/2015 has committed an error in appreciating the evidence on record, by making observation that the rider of the Motorcycle has attributed 30% negligence and the
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 said finding is liable to be set aside. Therefore, it is held that the accident is caused entirely due to the rash and negligent driving of the Bus. Accordingly, I answer the point arose for consideration in the Affirmative.
15. The compensation awarded by the Tribunal in MVC No.2784/2015 is as follows:
Sl. Particulars Amount in Rs.
No.
1. Towards pain and suffering Rs.40,000/-
2. Towards Loss of earnings during Rs.18,000/-
laid down period
3. Towards medical expenses Rs.39,930/-
4. Towards Conveyance, Rs.1,500/-
nourishment, food and attending
charges
Total Rs.99,430/-
16. Since the Tribunal has held that claimant had contributed 30% negligence, it awarded compensation of Rs.69,601/- with interest at the rate of 6% per annum from the date of petition till the date of deposit.
17. As stated above, the appellant - claimant had not contributed any negligence to the accident.
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017
18. The Tribunal has awarded compensation of Rs.40,000/- under the head 'Pain and Sufferings', which is on the lesser side. Considering the nature of injuries sustained by the claimant, compensation of Rs.50,000/- is awarded under the head 'Pain and Sufferings'.
19. The compensation of Rs.39,930/- awarded under the head 'Medical Expenses' is as per the actual bills and the same kept intact.
20. The Tribunal has taken the notional income at Rs.6,000/- per month. The accident has occurred in the year 2013. Therefore, the notional income at Rs.8,000/- per month has to be taken as per the Notional Income Chart recognized by the Karnataka State Legal Services Authority. Due to the injuries sustained, the claimant must have taken treatment for three months. Accordingly, Rs.24,000/- (8,000 x 3) is awarded under the head 'Loss of Income During Laid Up Period'.
21. The Tribunal has awarded a sum of Rs.1,500/- towards conveyance, nourishment, food and attendant
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 charges, which is on the lesser side. Therefore, the same is enhanced to Rs.15,000/-.
22. The Tribunal has not awarded any compensation under the head of loss of amenities. Accordingly, a sum of Rs.25,000/- is awarded under the head 'Loss of Amenities'.
23. Hence, the appellant - claimant in MVC No.2784/2015 is entitled for a total compensation, under various heads as follows:
Sl. Particulars Amount in Rs.
No.
1. Towards pain and suffering Rs.50,000/-
2. Towards medical expenses Rs.39,930/-
3. Towards loss of income during Rs.24,000/-
laid up period (8,000 x 3)
4. Conveyance, nourishment, food Rs.15,000/-
and attendant charges
5. Loss of amenities Rs.25,000/-
Total Rs.1,53,930/-
24. Therefore, the appellant - claimant in MVC No.2784/2015 is awarded a total compensation of Rs.1,53,930/- as against the compensation awarded by
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 the Tribunal at Rs.69,601/-. Hence, the appellant is entitled for an additional compensation of Rs.84,329/- (Rs.1,53,930 - Rs.69,601), along with interest at 6% per annum from the date of filing of the petition till deposit.
25. Accordingly, I pass the following:
ORDER i. MFA No.6021/2016 is allowed in part. ii. The impugned judgment and award dated 20.07.2016, passed in MVC No.2784/2015 on the file of the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, is modified to an extent that the appellant -
claimant is entitled for an additional compensation of Rs.84,329/- (Rupees Eighty Four Thousand Three Hundred and Twenty Nine Only), along with interest at the rate of 6% per annum from the date of filing of the petition till deposit, in addition to what has been awarded by the Tribunal.
iii. MFA Nos.948/2017 and 949/2017 are dismissed.
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NC: 2024:KHC:28256 MFA No. 6021 of 2016 C/W MFA No. 948 of 2017 MFA No. 949 of 2017 iv. The amount in deposit shall be transferred to the Tribunal forthwith.
v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the judgment passed by this Court forthwith without any delay.
vi. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA:Para 1 to 14
PMR:Para 15 to end
List No.: 1 Sl No.: 11