Karnataka High Court
Mr. Kushendra Prasadh vs The Managing Director on 24 August, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.No.5699/2015 C/W
M.F.A.NO.3896/2015 (MV-D)
IN MFA NO.5699/2015:
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE
K.H.ROAD, SHANTHINAGAR
BANGALORE - 560 027
... APPELLANT
(BY SRI D. VIJAYKUMAR, ADV.)
AND:
1. SRI KUSHENDRA PRASADH
S/O. SRI JWALA PRASADH
AGED ABOUT 53 YEARS
2. MISS. BABITHARANI
D/O. SRI KUSHENDRA PRASADH
AGED ABOUT 25 YEARS
3. MR. PAVAN KUMAR
S/O. SRI KUSHENDRA PRASADH
AGED ABOUT 23 YEARS
2
ALL ARE R/AT NO.205
KYASAPURA VILLAGE
KYASAPURA POST, KOTTAKALLI HOBLI
RAMANAGARA TALUK
RAMANAGAR DIST. - 562 117
PRESENT ADDRESS:
C/O. MANJUNATHA
NO.18, VISHWESHWARAIAH LAYOUT
NEAR VAJRESHWARI TALKIES, ULLAL
BANGALORE - 560 056
... RESPONDENTS
(BY SMT. SREEVIDYA G.K., ADV. FOR
SRI T.N. VISHWANATHA, ADV. FOR R1 TO R3)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:04.02.2015 PASSED IN MVC No.3103/2014 ON
THE FILE OF THE 16TH ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU, AWARDING
A COMPENSATION OF RS.11,05,000/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT.
IN MFA NO.3896/2015:
BETWEEN:
1. MR. KUSHENDRA PRASADH
S/O. SRI JWALA PRASADH
AGED ABOUT 52 YEARS
2. MISS. BABITHARANI
D/O. SRI KUSHENDRA PRASADH
AGED ABOUT 24 YEARS
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3. MR. PAVAN KUMAR
S/O. SRI KUSHENDRA PRASADH
AGED ABOUT 22 YEARS
ALL ARE RESIDING AT NO.205
KYASAPURA VILLAGE
KYASAPURA POST, KOTTAKALLI HOBLI
RAMANAGARAM TALUK & DISTRICT
PRESENT ADDRESS:
C/O. MANJUNATHA
NO.18, VISHWESHWARAIAH LAYOUT
NEAR VAJRESHWARI TALKIES, ULLAL
BANGALORE - 560 056
... APPELLANTS
(BY SMT. SREEVIDYA G.K., ADV. FOR
SRI T.N. VISHWANATHA, ADV.)
AND:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE
SHANTHINAGAR, K.H.ROAD,
BANGALORE - 560 027
... RESPONDENT
(BY SRI D. VIJAYKUMAR, ADV.)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:04.02.2015 PASSED IN MVC No.3103/2014 ON
THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
MFA No.5699/2015 is filed by the Bangalore Metropolitan Transport Corporation (hereinafter referred to as 'BMTC' for short) challenging the judgment and award passed in MVC No.3103/2014 dated 04.02.2015, by the XVI Additional Judge, Court of Small Causes, Bangalore, on the aspect of contributory negligence as well as on the quantum of compensation.
2. MFA No.3896/2015 is filed by the claimants challenging the above stated judgment and award questioning 20% of the contributory negligence as well as for enhancement of the compensation.
3. The brief facts of the case are as under:
The claim petition came to be filed under Section 166 of the MV Act in MVC No.3103/2014, contending 5 that on 09.05.2014 at about 8.05 a.m., when the deceased-Sudhamani was standing on the K.R.Road, near Kote Venkateshwara Temple, Kalasipalya, Bangalore to cross the road from west to east, at that time, a BMTC bus bearing No.KA-01-F-8722 came in a rash and negligent manner and dashed against the deceased. Due to which, the deceased fell down and sustained grievous injuries. Immediately, she was shifted to KIMS Hospital for first aid and then, she was shifted to ESI Hospital and thereafter, for better treatment she was shifted to M.S.Ramaiah Hospital, Bangalore, wherein she was treated as an inpatient.
In spite of better treatment, she succumbed to the fatal injuries on 28.05.2014. Hence, the legal heirs of the deceased preferred a claim petition in MVC No.3103/2014, seeking compensation under Section 166 of the MV Act.
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4. Sri D. Vijaykumar, learned counsel for the appellant-BMTC submitted that the Tribunal committed error in fixing 80% negligence on the part of the driver of the BMTC bus and 20% negligence on the part of the deceased. The deceased was entirely responsible for the cause of accident. Therefore, he submitted that due to fault of the deceased, the accident was caused but not due to the driver of the bus. Therefore, the records disclose that the deceased was 100% negligent. However, alternatively, learned counsel argued that the Tribunal ought to have held contributory negligence in the ratio of 50:50 between the driver of the bus and the deceased. Therefore, he prays for modification in this regard. Further, learned counsel submitted that while considering complaint, FIR, spot sketch and spot mahazer, it goes to prove that the deceased herself was negligent but fastening the contributory negligence of 80% on the part of the 7 driver of the bus is not correct. Learned counsel argued this point with reference to the evidence on record both oral and documentary. Further, learned counsel submitted that the Tribunal has taken salary of the deceased at Rs.9,000/- p.m. But, according to Ex.P10-pay slip of the deceased, the monthly income of the deceased is found to be much lesser than Rs.9,000/-, but the Tribunal had erred in taking the quantum of salary as Rs.9,000/- p.m., which is contrary to the evidence on record. Therefore, prays to reduce the quantum of compensation.
5. Further, it was argued that in the salary slip at Ex.P10, national festival allowance and over time allowance is added. But the national festival allowance cannot be given every month. Therefore, it cannot be added as contribution towards monthly salary/allowance. Further, it is submitted that the quantum of over time worked is more than 60% of the 8 basic salary + VDA but considering that deceased is a woman, it cannot be inferred that the deceased was working overtime most of the days in a month. Therefore, it is submitted that Ex.P10 - pay slip is created only for the purpose of the case that is to get higher compensation and therefore, learned counsel requests to consider only basic wage + VDA and washing allowance as regards the monthly salary of the deceased. Alternatively, learned counsel for BMTC argued that when Ex.P10 - pay slip is a doubtful one, some discrepancies are found. In such event, the notional income of the deceased as recognized by the Karnataka State Legal Services Authority for the year 2014 is to be adopted and, accordingly, prays for modification of the quantum of compensation. Therefore, for the above stated grounds, learned counsel for the appellant-BMTC prays to set aside the judgment and award/to modify the same. 9
6. On the other hand, learned counsel for the claimants submitted that the driver of the BMTC bus was solely responsible for cause of accident and it is proved by Ex.P4-spot sketch and Ex.P5-spot panchanama, Further, it is submitted that the deceased did not contribute negligence as it is quite natural for any person to cross the road when she was in the process of crossing the road, the driver of the BMTC bus drove the bus in a rash and negligent manner while taking the turn at the left side and dashed against the deceased. This version is corroborated by the eye witness PW.3, who is the Head Constable, who witnessed the accident and also submitted charge sheet filed against the driver of the bus. Further, it is submitted that upon perusal of the spot sketch Ex.P4, it is shown that the deceased was standing on the extreme side of the road and there was no occasion for the BMTC bus driver to drive the 10 bus on the extreme left side of the road but he took the bus towards the extreme left side of the road and dashed the deceased. Therefore, it shows the driver of the BMTC was rash and negligent. Further, it is submitted that the bus driver was on probationary which is revealed during the cross examination of RW.1, who is driver of the BMTC bus and just one day before he joined the work to drive the bus in the city of Bangalore and the accident was caused on the 2nd day of joining work to drive the city bus in the Bangalore City. Therefore, submitted that the BMTC bus driver was not having requisite experience/expertise and qualification. Therefore, the driver of the bus was solely rash and negligent and also responsible for the accident. Therefore, apportioning the contributory negligence of 20% on the part of the deceased is not correct but negligence of 100% is to be fastened on the driver of the BMTC 11 bus. Therefore, prays for modification of fastening contributory negligence on the part of the deceased.
7. Further, it is submitted that the Tribunal has committed error in only taking monthly income of the deceased as Rs.9,000/- p.m., which is contrary to Ex.P10 - pay slip. As per Ex.P10 - pay slip, the salary of the deceased was Rs.9,987/- p.m., and therefore, this gross salary ought to have been considered by the Tribunal but has committed error by taking lesser salary of Rs.9,000/- p.m. Therefore, prays for enhancement on this ground also.
8. Further, prays for enhancement on the ground that fastening the contributory negligence of 100% on the driver of the BMTC bus. Therefore, prays for enhancement of compensation by modifying the judgment and award passed by the Tribunal. 12 Regarding contributory negligence:
9. As stated above, the facts are that the deceased was working as Security Guard in M/s.G4S Secure Solutions (India) Private Limited, Bangalore Region and on 09.05.2014 at about 08.05 a.m., the deceased was standing on the K.R.Road, near Kote Venkateshwara Temple, Kalasipalya, Bangalore to cross the said road from west to east in order to go to the medical college side, which was on the right side and in that process, the accident occurred as stated above. The Tribunal had apportioned the contributory negligence of 80:20 between the driver of the bus and deceased respectively. This apportionment of contributory negligence is disputed by both the sides. BMTC contends that the deceased was 100% negligence or at least 50% negligence. But on the other hand, it is the contention of the claimants that the deceased had not committed any mistake but the 13 driver of the bus was solely responsible for cause of the accident.
10. Therefore, for these rival submissions, the evidence are to be re-appreciated as to whether the findings given by the Tribunal is correct or not? Ex.P.1 is the complaint given by the deceased herself when she was taking treatment in the hospital. The deceased has given the first information statement that the driver of the bus drove the bus in a rash and negligent manner and dashed against her, due to which, she sustained injuries. It is the contention of the learned counsel for the BMTC that the front portion of the bus had not hit the deceased, but the deceased herself while crossing the road slipped near back left side of the BMTC bus and the driver was not able to notice the deceased, since the deceased was hind side of the bus that is on the left side and focus of driver of the bus was ahead and in this regard, he 14 places reliance on the evidence of R.W.1 who is the driver of the bus. But upon considering the evidence of R.W.1 who is the driver of BMTC bus, which is found to be self-interested evidence, quite naturally, R.W.1 himself is a tort- feasor and caused the accident and in order to avoid liability, he deposed that the deceased fell down from the hind side of the bus.
11. Upon perusing the spot sketch-Ex.P.4, the bus was in the process of taking left turn towards K.R.Market and the deceased was standing on the side of the road opposite to the direction, in which, the bus was coming and place of accident is shown just 2 feet away from the edge of the road. Therefore, it is found that the deceased was walking or may be standing on the edge of the road just 2 feet away from the road. Here considering the contention urged by the learned counsel for the claimants that the driver of the bus 15 was not an experienced driver and was not expertised in driving BMTC bus in the city of Bengaluru, for which, drawn the attention of Court to the cross- examination of R.W.1-driver of the BMTC bus. From the cross-examination of R.W.1-driver of the BMTC bus, it is revealed that R.W.1-driver of the bus was still on probationary period. It is admitted by R.W.1 that he joined the duty two days prior to the accident. Further admitted that the accident has occurred on the second day of his duty. Further it is the admission of R.W.1 that the place of accident was new to him. Therefore, this admission in the evidence of R.W.1 probabilizes the case of the claimants that the driver of the bus was found to be more rash and negligent and had not necessary experience/expertise.
12. P.W.3 is the Head Constable. He deposed that he was on duty on 09.05.2014 at about 8.50 am., at that time, the deceased was walking and standing 16 on the K.R.Road, near Kote Venkateshwara Temple, Kalasipalya, Bangalore, to cross the said road from west to east direction, at that time, driver of BMTC bus drove the same at a very high speed and in a rash and negligent manner from Shiva Shankar Circle and proceeding towards K.R.Market and while taking left turn going towards K.R.Market hit the deceased. During the course of cross-examination, nothing is revealed as to he is not eye witness. Even though, P.W.3 has stated in his evidence that he lodged the complaint before the police, but P.W.3 has not lodged the complaint. P.W.3 also admitted that he has not lodged the complaint to the police. Therefore, just because, he has not lodged the complaint before the police, it cannot be a ground to reject the evidence of P.W.3. Further, just because, PW.3 has not lodged the complaint before the police, it cannot be a ground to suspect the claim. PW.3 has stated that he has shifted 17 the injured to the hospital and informed the Superior Officer. Therefore, quite naturally, it is a paramount thing for every police officer firstly to take the injured to the hospital for providing medical treatment rather than going to the police station to lodge the complaint. But the complaint was taken by the police on the day of the accident itself at about 9.15 am. Therefore, just because, P.W.3 has not lodged the complaint cannot be blamed on the claimants or PW.3.
13. Upon considering the culminated result of investigation of the police as the charge sheet is filed by the Investigation Officer as per Ex.P.9, it is revealed that the driver of the BMTC bus drove the bus in a rash and negligent manner and caused the accident. In the said accident, the deceased died and accordingly, R.W.1 driver of the bus was charge sheeted. Therefore, considering all these documentary evidence and upon considering the entire scenario of 18 the accident as above discussed and appreciating the evidence on record, both oral and documentary, on its preponderance of probability, the case of the claimants is having more weightage compared to the contentions urged by the BMTC. Further it is worthwhile to mention Ex.P.4-spot sketch, in which, the place of accident is shown as 2 feet away from the edge of the road. The total width of the road is 25 feet as per the spot sketch. The BMTC bus is a heavy vehicle of having length of 25 to 30 feet, then the driver of the bus could not have driven so close to the edge of road/while taking left turn at curve and could drive the same cautiously and in a slow manner, so as to pass the entire bus on the road by keeping sufficient place on the left side of road, but without doing so, the bus had come to the close at the edge of the road which is just two feet away from the road and place of accident proves that R.W.1- driver of the 19 bus was not expertise or was not having experience to drive such a heavy passenger vehicle on the road of Bengaluru City.
14. Therefore, upon considering the evidence and after re-appreciating the evidence on record, the submissions made by the learned counsel for the claimants is having more weightage than the contention taken by the BMTC. Therefore, the Tribunal has committed an error in fastening the liability at 20% on the deceased as discussed above.
15. Upon appreciating the evidence on record, the driver of the bus is found to be 100% rash and negligent in driving the bus and in causing the accident. Therefore, in this regard, the judgment and award passed by the Tribunal is liable to be modified by holding that the driver of BMTC was rash and negligent in driving the bus at 100% and fastening of 20 liability at 20% on the deceased by the Tribunal is not correct. Accordingly, the judgment and award is modified.
Regarding quantum:
16. The Tribunal has determined the total compensation of Rs.13,80,400/- and out of that, 20% was deducted and remaining Rs.11,05,000/- is awarded to the claimants. The Tribunal has taken the income at Rs.9,000/- per month.
17. Learned counsel for BMTC submitted that the amount showing in pay slips-Ex.P.10 and Ex.P.16
- overtime salary certificate is stated as Rs.3,693.46, which is more than 50% of basic pay and it cannot infer that on all the dates of the month, the deceased being woman had done the overtime. Therefore, requested to deduct the salary as shown as overtime and submitted that the pay slip - Ex.P.10 is a created 21 document only for the purpose of the case. The claimants have not only produced the pay slip for the month of April, 2014, but also produced the pay slips of the deceased for the months from February to April, 2014 as per Ex.P.16. Ex.P.18 is the bank statement showing wage softcopy for the month of April, 2014 showing that the company has paid the salary to the deceased. Ex.P.10 and Ex.P.16 are the pay slips and Ex.P.18 are bank statements of wage softcopy for the months of February, March and April, 2014, which shows the total earnings of the employee as Rs.9,203.85, Rs.10,211.20 and Rs.9,987.35 for three months.
18. P.W.2 is an authorized officer of the company who has deposed that the deceased was working as a security guard and was getting monthly salary of Rs.10,275/-. Therefore, Exs.P.10, P.16 and P.18 are the documents, as above discussed, 22 corroborates with the evidence of P.W.2. Therefore, it proves that the deceased was working as head security guard in the above stated company and was receiving salary. Therefore, the monthly salary taken by the Tribunal at Rs.9,000/- per month is found to be correct after making deductions towards professional tax for all the months, then it would be more or less the amount of Rs.9,000/- per month was being received from the deceased during her life time. Therefore, the Tribunal is correct in holding monthly salary of Rs.9,000/- per month. The Tribunal considered the multiplier of "14" according to the age of the deceased as she was 42 years as on the date of the accident. But the Tribunal has committed error in making addition of 30% of wage towards loss of future prospects, but it ought to be 25% of addition only, but not 30% as per the judgment of the Hon'ble Apex Court in the case of National Insurance Co. 23 Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC
680. The claimants are husband and two children. Therefore, 1/3rd would be deducted towards personal expenses of the deceased as per the judgment of the Hon'ble Apex Court in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104. Therefore, loss of dependency is re-calculated and quantified as follows:
Rs.9,000/- + Rs.2,250/- (25% of Rs.9,000/-) =Rs.11,250/- Rs.11,250/- x 2/3 x 14 x 12 = Rs.12,60,000/-
19. The Tribunal has committed error in awarding compensation of Rs.30,000/- under the head loss of love and affection and further the Tribunal has awarded only Rs.20,000/- towards loss of consortium, which is on the lesser side. Therefore, as per the judgment of the Hon'ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu 24 Ram & Others reported in 2018 ACJ 2782 and National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, the claimants being husband and two children are entitled to Rs.40,000/-
each under the head loss of consortium. Accordingly, Rs.1,20,000/- is awarded under the head loss of consortium including loss of love and affection. Further compensation of Rs.30,000/- is awarded under the head loss of estate and funeral and transportation.
20. Thus, in all the appellants/claimants are entitled for enhanced compensation as follows:
1. Loss of dependency Rs. 12,60,000/-
2. Loss of Consortium/ Loss of love and affection Rs. 1,20,000/-
3. Loss of estate and Funeral and transportation Rs. 30,000/-
Total Rs. 14,10,000/-
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21. The Tribunal has awarded the
compensation of Rs.11,05,000/-, but the
appellants/claimants are entitled to total
compensation of Rs.14,10,000/-. Hence, the
appellants/claimants are entitled to enhanced
compensation of Rs.3,05,000/- (Rs.14,10,000/- -
Rs.11,05,000/-). Therefore, the appellants/claimants are entitled to enhanced compensation of Rs.3,05,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
22. As held above, the driver of the BMTC bus was 100% negligent and he is solely responsible in causing the accident. Therefore, the claimants are entitled for the entire amount of compensation as above stated.
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23. The Tribunal had granted interest at the rate of 9% p.a., but the same is reduced to 6% p.a., from the date of petition till realization. To this extent only, the appeal filed by the BMTC is liable to be allowed-in-part. Hence, I proceed to pass the following ORDER MFA.No.5699/2015 filed by the BMTC is allowed-in-part.
MFA.No.3896/2015 filed by the claimants is allowed-in-part.
The impugned judgment and award passed in MVC.No.3103/2014 dated 04.02.2015 by the XVI Additional Judge, Court of Small Causes, Bangalore, is modified to the extent that the claimants are entitled to Rs.3,05,000/- along with interest at 6% p.a., from the date of petition till realization. 27
The amount in deposit made by the BMTC shall be transmitted to the Tribunal along with TCR and a copy of this order forthwith.
No order as to costs.
Draw award accordingly.
Sd/-
JUDGE KA/PB