Karnataka High Court
Smt Jyothi M vs The Managing Director on 16 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:6738
MFA No. 2661 of 2018
C/W MFA No. 8547 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.2661 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.8547 OF 2019 (MV-D)
IN MFA NO.2661/2018:
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN TRANSPORT
CORPORATION,
CENTRAL OFFICES, K.H.ROAD,
SHANTHINAGAR, BANGALORE - 560 027.
...APPELLANT
(BY SRI. D VIJAYAKUMAR, ADVOCATE THROUGH V/C)
AND:
1. SMT. JYOTHI.M
Digitally signed by JAI
W/O LATE SUDHAKAR N,
JYOTHI J AGED ABOUT 38 YEARS,
Location: HIGH COURT
OF KARNATAKA
2. KUMARI RUCHITHA S
S/O LATE N SUDHAKAR,
AGED ABOUT 12 YEARS,
RESPONDENT NO.2 IS MINORS,
REP BY NATURAL GUARDIAN THEIR MOTHER
3. SMT. CHINNAMMA
W/O LATE NARAYANAPPA,
AGED ABOUT 73 YEARS,
ALL ARE RESIDING AT
NO.151, 5TH CROSS,
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NC: 2024:KHC:6738
MFA No. 2661 of 2018
C/W MFA No. 8547 of 2019
DOMLUR LAYOUT, DOMLUR,
BANGALORE - 560071.
...RESPONDENTS
(BY SRI. K.J. GURUDEV PRASAD ADVOCATE FOR R1 TO R3
(R2 MINOR REP BY R1)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.12.2017 PASSED IN MVC
NO.3140/2017 ON THE FILE OF THE V ADDITIONAL SMALL
CAUSES JUDGE AND XXIV A.C.M.M. MEMBER, M.A.C.T.,
MAYOHALL UNIT BENGALURU(SCCH.20), AWARDING
COMPENSATION OF RS.13,30,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA NO. 8547/2019:
BETWEEN:
1. SMT. JYOTHI.M
W/O LATE SUDHAKAR N,
AGED ABOUT 38 YEARS,
2. KUMARI RUCHITHA S
S/O LATE N SUDHAKAR,
AGED ABOUT 12 YEARS,
RESPONDENT NO.2 IS MINORS,
REP BY NATURAL GUARDIAN THEIR MOTHER
3. SMT. CHINNAMMA
W/O LATE NARAYANAPPA,
AGED ABOUT 73 YEARS,
ALL ARE RESIDING AT
NO.151, 5TH CROSS,
DOMLUR LAYOUT, DOMLUR,
BANGALORE - 560071.
...APPELLANTS
(BY SRI. GURUDEV PRASAD K T, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR
B. M. T. C. SHANTHINAGAR,
DOUBLE ROAD, BENGALURU-560 027.
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NC: 2024:KHC:6738
MFA No. 2661 of 2018
C/W MFA No. 8547 of 2019
...RESPONDENT
(BY SRI. D. VIJAYA KUMAR, ADVOCATE THROUGH V/C)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.12.2017 PASSED IN MVC
NO.3140/2017 ON THE FILE OF THE V ADDITIONAL SMALL
CAUSES JUDGE AND XXIV A.C.M.M., MEMBER, M. A.C.T.,
COURT OF SMALL CAUSES, MAYO HALL UNIT, BENGALURU,
(SCCH.20), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.2661/2018 is filed by the BMTC contending that deceased has also contributed his negligence to the accident and also for reducing the quantum of compensation awarded by the Tribunal. MFA No.8547/2019 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
2. The factum of accident, death of deceased and coverage of insurance are not in dispute. The only question that would arise for consideration is, whether the deceased has contributed to negligence to the accident or not?
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NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019
3. Heard the arguments of both parties and perused the materials on record.
4. The Tribunal while awarding compensation has held that the driver of Volvo bus was completely rash and negligent in driving the bus and caused the accident and accordingly Tribunal has awarded compensation.
5. Learned counsel for the BMTC submitted that the accident is caused at the old airport road at NH 45 and when it is busy road, the deceased was not supposed to cross the road where there is no zebra crossing. Hence, the deceased is completely negligent and has contributed negligence to the accident. Further he placed reliance on the decision of Division Bench of this Court in the case of MS.LEELAMBIKA v. THE BENGALURU METROPOLITAN TRANSPORT CORPORATION AND ANR.1 wherein it is held that while injured/deceased crossing the road, it amounts there is contributory 1 MFA No.5545/2018 C/W 6746/2018 DTD. 25.11.2020 -5- NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 negligence on the part of injured/deceased to the accident. Therefore, requested to hold that deceased also contributed to the accident.
6. On the other hand, learned counsel for the claimants submitted that the driver of bus was completely rash and negligent in driving the bus and caused the accident. The deceased had also crossed 3/4th of the road and driver of the bus ought to have driven the bus slowly and carefully when he was driving in Bengaluru city and ought to have consciousness of driving the bus slowly and carefully, but without observing this caused the accident. Therefore, justified the judgment and award passed by the Tribunal in holding that driver of bus was completely rash and negligent and further prays for enhancement of compensation.
7. In the present case, the Tribunal while recording the manner of accident relying upon Exs.P-3 and P-4, which are spot mahazar and spot sketch and upon reappreciating the same, it is found that the -6- NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 deceased had almost crossed 3/4th of the road. The accident has taken place at old airport road. When Volvo bus is a bigger vehicle, the driver ought to have driven the bus carefully and slowly on the road of Bengaluru City. Just because there is no zebra crossing and if a person is crossing the road that does not always amount to negligence on the part of deceased. Where upon considering the duties and responsibility of pedestrian and a driver who is driving the vehicle more so a bigger vehicle like Volvo bus in the present case, the duty of the driver of vehicle is more onerous and having high responsibility and keeping in mind that he ought to drive the said vehicle carefully not to cause any accident. Therefore, upon analysing the evidence on record the road is a busy road and a straight road and the accident is caused at evening 06.40 p.m. and quite naturally there was heavy traffic on the road therefore the driver of bus ought to have driven the bus slowly with cautious and careful manner.
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NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019
8. Though PW1 may not be the eye witness but the documentary evidence, complaint, FIR, spot mahazar, spot sketch, charge sheet, proves that driver of the bus was completely rash and negligent in driving the bus and caused the accident. Though the driver of the bus was examined as RW1, but has no corroboration, whereas the evidence of PW1 is corroborated by the documentary evidence above discussed, upon investigation by the police charge sheet is making the driver of the bus has caused the accident. There is no evidence produced by the BMTC except the evidence of driver of the bus. Therefore, the Tribunal is correct in holding that the driver of the bus is completely rash and negligent in the driving the bus and caused the accident.
9. Though citation relied on by the counsel for the BMTC is also having similar facts as deceased was crossing road, but having found difference in distance in crossing the road makes difference in the instant case and above said case. Therefore, the above said decision -8- NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 is not helpful to the BMTC. Therefore it is held that the driver of the bus is completely rash and negligent in driving the bus and caused the accident.
10. The deceased was aged 43 years as on the date of accident, working as mason and contended that he was earning Rs.1,000/- per month, but there is no evidence therefore considering the year of accident as 2017, the notional income of Rs.11,000/- is ought to be taken. Since he was 43 years old, 25% of income is to be added towards 'loss of future prospects in life'. The appropriate multiplier is '14'. The claimants being wife, minor daughter and old age mother, 1/3rd is to be deducted towards personal and living expenses. Therefore, 'loss of dependency' is reassessed and quantified as under:
Rs.11,000/- + 25% (Rs.2,750/-) = Rs.13,750/- Rs.13,750/- x 2/3rd x 14 x 12 = Rs.15,39,999.99 rounded off to Rs.15,40,000/-.-9-
NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 Thus, claimants are entitled to compensation of Rs.15,40,000/- under the head 'loss of dependency'.
11. The Tribunal has awarded compensation of Rs.40,000/- towards 'loss of consortium'. As per the judgment of Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED V. NANU RAM & OTHERS2, each claimant is entitled for Rs.40,000/- towards 'loss of consortium'. In the present case, there are three dependants. Therefore, compensation of Rs.1,32,000/- [Rs.40,000/- x 3 dependants + 10% escalation) is awarded under the head 'loss of consortium'.
12. The compensation of Rs.16,500/- is awarded towards 'funeral expenses and transportation of dead body' as against Rs.15,000- awarded by the Tribunal. 2 2018 ACJ 2782
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NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019
13. The compensation of Rs.16,500/- is awarded towards 'loss of estate' as against Rs.15,000/- awarded by the Tribunal.
14. Thus, in all, the appellants/claimants are entitled for total compensation under various heads as follows:
Sl. Awarded by Awarded by
Particulars Rs.
No. Tribunal this Court
1 Loss of dependency Rs. 12,60,000/- 15,40,000/-
2 Loss of consortium
including loss of love
and affection Rs. 40,000/- 1,32,000/-
3 Funeral expenses and
transportation of dead
body Rs. 15,000/- 16,500/-
4 Loss of estate Rs. 15,000/- 16,500/-
TOTAL Rs. 13,30,000/- 17,05,000/-
15. The Tribunal has awarded compensation of Rs.13,30,000/-, but the appellants/claimants are entitled to total compensation of Rs.17,05,000/-. Hence, the appellants/claimants are entitled to enhanced compensation of Rs.3,75,000/- (Rs.17,05,000/- - Rs.13,30,000/-). Therefore, the appellants/claimants are entitled to enhanced compensation of Rs.3,75,000/-
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NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
16. Accordingly, I proceed to pass the following:
ORDER i. Appeal is allowed-in-part. ii. The impugned judgment and award dated 14.12.2017 passed by MACT & V Addl. Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru, in MVC No.3140/2017, is modified to the extent that the appellants/claimants are entitled to enhanced compensation of Rs.3,75,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. iii. No order as to costs.
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NC: 2024:KHC:6738 MFA No. 2661 of 2018 C/W MFA No. 8547 of 2019 iv. Registry to send back the trial court records to the jurisdictional Tribunal.
v. Draw award accordingly.
Sd/-
JUDGE
DR
List No.: 1 Sl No.: 20