Bangalore District Court
Smt. Asha Shankarappa vs The Managing Director on 2 June, 2018
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BENGALURU
(SCCH-16)
Present: Sri. Subramanya N., B.A.L, LL.B.,
X Addl. Judge, Court of Small Causes
Bengaluru.
MVC No.4068/2017
Dated: 02nd June 2018
Petitioners 1. Smt. Asha Shankarappa,
W/o Late Shankarappa B.,
Aged about 37 years,
2. Mst. Harshith S.,
S/o Late Shankarappa B.,
Aged about 13 years,
3. Smt. Yellamma,
W/o Late K. Beeraiah,
Aged about 62 years,
All are residing at No.C-69,
Yediyurappa Nagar,
Singanayakanahalli,
Bangalore North,
Bangalore.
Address in Aadhar cards:
No.26, Chikkegowda Building,
Yelahanka Hobli,
Avalahalli,
Singanayakanahalli,
Bangalore North,
Bangalore.
(Sri G. Srinivasa, Advocate)
2 (SCCH-16) MVC 4068/17
V/s
Respondent The Managing Director,
B.M.T.C.,
K.H. Road, Shanthinagar,
Bengaluru - 560 027.
(RC owner of BMTC bus bearing
registration No.KA-53-F-0217)
(Sri K.M. Sanath Kumara, Advocate)
JUDGMENT
This petition has been filed by the petitioners under Section 166 of M.V. Act, seeking compensation of Rs.60,00,000/- from the respondent on account of death of one Shankarappa B. in vehicular accident.
2. The averments of the petition, in brief, are that on 08- 07-2017 at about 06-45 a.m., the deceased was proceeding from Mother Dairy towards his residence on his motorcycle bearing No.KA-03-EP-7988 slowly and cautiously. When he entered on Major Sandeep Unnikrishnan's Road, at that time, the driver of the BMTC bus bearing No.KA-53-F-0217 drove the same in a rash and negligent manner and dashed against the motorcycle. Due to the impact, the deceased sustained grievous injuries. Immediately he was taken to Maanasa SLV Hospital, Yelahanka. Thereafter, as per advice of the doctor, he was shifted to Baptist Hospital. In this hospital the doctors declared as brought dead. Then the postmortem was conducted in 3 (SCCH-16) MVC 4068/17 Government Hospital, Yelahanka. The petitioners performed the last rites. On account of his death, they lost dependency and love and affection. Therefore, the respondent is liable to pay compensation.
3. In response to the notice, the respondent entered his appearance before the Tribunal and filed written statement admitting the occurrence of the accident on the relevant point of time and death of Shankarappa B. therein due to the fatal injuries. His defence is that the driver of the BMTC bus was driving the same carefully from Yelahanka to Hampinagar. When he reached near Mother Dairy, the deceased entered on the road all of a sudden to cross the road from left side to right side. Though the driver of the bus stopped the bus applying the brake the accident has happened due to the negligence of the deceased himself. If the deceased had taken care, accident could have been avoided. However, in collusion with the police a false case has been booked against the driver of the bus to have the wrongful gain. On these grounds, he has prayed for the dismissal of the petition.
4. Based on the pleadings, the following issues have been framed:
1) Whether the petitioners prove that deceased Shankarappa B. succumbed to the injuries sustained in vehicular accident alleged to have occurred on 08-07-2017 due to the rash and 4 (SCCH-16) MVC 4068/17 negligent driving of the driver of BMTC bus bearing No.KA-53-f-0217?
2) Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3) What order or award?
5. In order to prove the above said issues, petitioners have adduced both oral and documentary evidence. First petitioner has been examined as PW1, and 25 documents have been got marked. They have also examined one witness as PW2. On the other hand, the conductor of the BMTC bus has been examined as RW1, but no documents have been got marked.
6. I have heard arguments advanced by both parties. On hearing the arguments and on going through the materials on record, my findings on the above issues are as under:
Issue No.1 : Partly in the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order REASONS ISSUE NO.1:
7. At the beginning itself, I deem it proper to state that, in this case, the occurrence of the accident on 08-07-2017 is not 5 (SCCH-16) MVC 4068/17 disputed. Likewise, the death of one Shankarappa B. in the said accident is also not in dispute. So also, the involvement of the BMTC bus belonging to the respondent is undisputed.
8. According to the petitioners, the accident has occurred due to the negligence of the driver of the BMTC bus. Whereas, the respondent has attributed the negligence to the deceased himself. Therefore, in this case, as per the ratio laid down in the decision reported 2014 AIR SCW 1081, the burden is upon the petitioners to establish the actionable negligence on the part of driver of the BMTC bus.
9. First petitioner of this case has testified regarding the actionable negligence for the occurrence of the accident. She has reiterated all the averments of the petition. It is her evidence that the accident has taken place due to the negligence of driver of the BMTC bus. So as to corroborate her testimony, she has placed much reliance on the police documents. Per contra, the conductor of the BMTC bus has been examined by the respondent to disprove the case of the petitioners. His evidence is almost replica of averments of paragraph 3 of the written statement. Both the witnesses referred to above have been subjected to cross-examination. Their evidence has to be evaluated in the light of the facts asserted by the petitioners and defence set up by the respondent.
6 (SCCH-16) MVC 4068/17
10. On perusal of the documents it is observed that the Yelahanka Traffic Police have registered a crime against the driver of the BMTC bus for the offences punishable under Sections 279 and 304(A) of IPC based on the complaint given by first petitioner. During investigation, they have got examined the vehicles involved in the accident by IMV Inspector and obtained his report as per Ex.P5. From this document it is explicitly clear that the accident was not the result of any mechanical defect of these vehicles.
11. There is no need to say anything about inquest and postmortem report inasmuch as the cause of death is undisputedly due to the accidental injuries. No doubt true, after due investigation the police have filed charge sheet against the driver of the BMTC bus. It is a settled legal proposition that the charge sheet is not a conclusive proof, but it is a corroborative piece of evidence. Hence, just because the charge sheet has been filed against the driver of the BMTC bus, it can not be said that he alone is responsible for the accident. What the Tribunal has to do is that it will have to assess the evidence independently to decide as to due to whose fault the accident was caused.
12. Bearing this in mind, at first, I would like to refer the evidence of first petitioner. On careful examination of her testimony, what I have seen is that she is not an eyewitness, but based on the documents only she is deposing. Therefore, her 7 (SCCH-16) MVC 4068/17 evidence requires corroboration. If her evidence is not corroborated it does not become creditworthy. In the instant case, RW1 is the star witness to speak with regard to the manner in which the accident has occurred. To come to the right decision, the answers elicited in the cross-examination of PW1 and RW1 have to be taken into account. Therefore, their evidence needs to be analyzed with care. At the same time, the contents of the spot mahazar and the topography of scene of occurrence depicted in the sketch are also to be considered.
13. Admittedly, the accident has taken place on Sandeep Unnikrishnan's road in front of Mother Dairy. This road runs south-north. It is a two-way road having median in the center. The width of one side road is 40 feet. In the spot mahazar (Ex.P4) it is recited that the accident has happened on the eastern extremity of the road. Even in the sketch it is shown like that. But during cross-examination, PW1 has admitted that the accident has happened in the middle of the road. It is important to note that she has seen the accident spot and therefore, what she has stated has to be accepted so far as the place of occurrence is concerned. Thus, it is held that the respondent is able to prove that the accident has happened in the middle of the road.
14. In addition to that it is pertinent to note that near Mother Dairy there is space between two dividers so as to make provision for the vehicles to enter upon other side of the 8 (SCCH-16) MVC 4068/17 road to go towards Yelahanka. RW1 has specifically stated that the deceased entered on the main road all of a sudden from Mother Dairy. Even in the evidence of PW1, this aspect has been brought out. The contents of the sketch make it clear that on the said road tyre marks were found up to the extent of 5ft towards south direction. Undoubtedly, the said tyre marks must be of BMTC bus. The impression of the tyre marks on the road gives an indication that the bus driver has tried to avoid the accident by applying the brake.
15. Further, it is visible from the sketch that the deceased wanted to enter upon the main road from the cross road. As per the traffic rules, the person who wants to enter upon the main road from cross road must look on either side and only after ensuring that no vehicle is approaching nearby he should proceed. I think in this case the deceased does not seem to have done so. Perhaps, he might have tried to enter upon the road without seeing the bus coming in close range. If he had not tried to enter upon the main road all of a sudden, no accident would have occurred. Consequently, I hold that the deceased also has contributed the negligence.
16. It is not the case of the respondent that the road where accident took place was new to the driver of the BMTC bus and he was stranger to that route. Being acquainted with the said road, he should have driven the bus slowly and cautiously near Mother Dairy. Obviously, the tyre marks found 9 (SCCH-16) MVC 4068/17 on the road would show that the bus was being driven speedily. Otherwise the tyre marks would not have been engrossed on the road. If the bus driver had slowed down the speed at that place, definitely the accident would not have occurred. Therefore, I am of the opinion that the driver of the BMTC bus is also responsible for the accident. Having regard to the place of occurrence and the manner in which accident took place, 40% negligence is attributable to the deceased and the rest is to the driver of the BMTC bus. With this observation I answer issue No.1 partly in the affirmative.
ISSUE NO.2:
17. This Tribunal has already found that Shankarappa succumbed to the injuries sustained in the road traffic accident caused by the driver of the offending vehicle. In view of that matter, his legal representatives are entitled to claim compensation. The petitioners herein are claiming to be his legal representatives being wife, son and mother. In order to prove their relationship with the deceased, they have relied upon Aadhar cards and Election ID Cards which are at Ex.P9 and Ex.P10. These documents manifestly make it clear that petitioners are none other than wife, son and mother of the deceased. Thus, there is sufficient evidence to establish that the petitioners are the legal representatives of the deceased. As a consequence, petitioners herein are entitled to get the compensation on account of the death of the deceased.
10 (SCCH-16) MVC 4068/17
18. For the determination of the quantum of compensation, Tribunal has to take into account the age, income and occupation of the deceased. Firstly I wish to see what the avocation and income of deceased was. According to petitioners, deceased was working as Office Assistant in NITTE Meenakshi Institute of Technology and earning Rs.15,000/- per month. He was also running Nandini Milk Parlour and earning Rs.15,000/- in addition to his salary. To substantiate this aspect they have produced ID card, Appointment letter, pay slips, and statement of account, Sanction letter, and Cancellation letter as per Ex.P14 to Ex.P25. That apart they have examined the concerned official of the NITTE Meenakshi Institute of Technology as PW2, who has specifically deposed stating that the deceased was working as an office assistant and getting salary of Rs.15,500/- per month.
19. I have perused the documents produced in proof of the avocation and income of the deceased. Of course, the bank statement does not reflect the salary amount having been credited. However, the documents like appointment letter, service book, service register and salary slips coupled with evidence of PW2 establish that the deceased was working as Computer operator in First grade College earlier. Later on , he gave resignation to that job and then was appointed as an Office Assistant in Engineering college of the same institution 11 (SCCH-16) MVC 4068/17 i.e. NITTE Meenakshi Institute of Technology on monthly salary of Rs.15,000/-.
20. In this case it is pleaded that the deceased was running Milk Parlour also and earning Rs.15,000/- per month. Ex.P18 the sanction letter proves that the deceased was permitted to run retail business of selling milk and milk products from 11-08-2011 till further orders. Ex.P19 reveals that after the death of the deceased the licence was canceled on 08- 07-2017. First of all, no document is produced to show that the deceased was getting income of Rs.15,000/- per month from retail business of selling milk and milk products. Even if it is assumed that there was so much income, it can not be considered as income of the deceased. Because in the petition itself it is said that the wife of the deceased was looking after the said business while the deceased was at his work. From this it is evident that the deceased was not working in the milk parlour. Only the licence was in his name. But there is no document to show that the income derived from this business was being credited to the account of the deceased. Likewise no document is produced to show that the turnover from the business was Rs.15,000/- per month. As a matter of fact, after his death virtually it was his wife who lost the income from that business, but not the deceased. No man can do dual work simultaneously. Hence, it can not be accepted that due to the death of the deceased income of Rs.15,000/- from the milk 12 (SCCH-16) MVC 4068/17 parlour is lost. Therefore the decision cited by the counsel for the petitioners reported in AIR 2018 SC 712 has no application to the case on hand.
21. According to petitioners, the age of deceased as on the date of accident was 38 years. In this regard they have relied upon driving licence and SSLC marks card in which his date of birth is mentioned as 21-08-1979. As per this document his age was 38 years at the time of accident. Hence, the correct multiplier applicable to this case is 15.
22. The Hon'ble Supreme Court in a decision reported in AIR 2017 SC 5157, future prospects has to be added if the deceased had permanent job, fixed salary or was self employed. The materials on record show that the probation period of the deceased was not yet confirmed. So the had no permanent job. However, he was having fixed salary. Therefore, in view of the ratio laid down in the supra decision, 40% future prospects is added. Thus the total income comes to Rs.21,000/-. The evidence on record goes to show that there are three dependents. Therefore, 1/3rd of his income is to be deducted towards personal expenses. After deduction, the net income will be Rs.14,000/-. The annual income multiplied by 15 works out to Rs.25,20,000/ (14,000x12x15) for which, the petitioners are entitled towards loss of dependency. 13 (SCCH-16) MVC 4068/17
23. If deceased had been alive, he would have undoubtedly contributed his savings for the maintenance of the petitioners. Owing to his sudden death, they had to loose the estate of the deceased. In a recent decision reported in AIR 2017 SUPREME COURT 5157, the Hon'ble Apex Court has formulated reasonable figures in respect of the compensation awardable on conventional heads namely loss of estate, loss of consortium and funeral expenses. So, relying upon the aforesaid decision, Rs.40,000/- is awarded towards loss of consortium and Rs.30,000/- is awarded towards loss of estate and funeral and transportation expenses.
24. The details of compensation I propose to award are as under:
Sl. Head of Compensation Amount/Rs
No.
1. Loss of dependency 25,20,000-00
2. Loss of consortium 40,000-00
3. Loss of estate 15,000-00
4. Funeral and transportation 15,000-00
expenses
Total 25,90,000-00
25. The learned counsel for the respondent has vehemently argued that after the accident a sum of Rs.15,000/- has been paid to the petitioners as interim compensation and 14 (SCCH-16) MVC 4068/17 hence that amount needs to be deducted. Of course PW1 has admitted her having received Rs.15,000/-, but she has voluntarily stated that the said amount is not paid as compensation. The learned counsel for the petitioners has argued that Rs.15,000/- is paid to the petitioners as ex-gratia which can not be deducted. In this regard he has relied upon a decision reported in Laws (APH) 2006 9 130. Having read this decision it is learnt that ex-gratia can not be deducted from the compensation. Hence Rs.15,000/- paid by the respondent is not considered for deduction. However, out of compensation awarded 40% has to be reduced on account of contributory negligence. Then the petitioners are entitled to the compensation of Rs.15,54,000/-. In view of the decision of the Hon'ble Supreme Court reported in 2013 AIR SCW 5375, they are entitled to interest at 9% per annum.
Liability:
26. It is an admitted fact that the respondent is the owner cum insurer of the BMTC bus and that the policy was valid as on the date of accident. The accident has occurred due to the negligence of driver of the BMTC bus and as such, it is the respondent which is liable to pay compensation. Hence, this issue is answered partly in the affirmative.
ISSUE NO.3:
27. In view of my findings, the petition deserves to be allowed in part. Hence, I proceed to pass the following:
15 (SCCH-16) MVC 4068/17 ORDER The petition filed by the petitioners is partly allowed with cost.
The petitioners are entitled to
compensation of Rs.15,54,000/- (Rupees
fifteen lakhs fifty four thousand only) with interest at the rate of 9% p.a., from the date of petition till realisation.
The respondent is liable to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned as follows:-
Petitioner No.1 - Wife 50%
Petitioner No.2 - Son 25%
Petitioner No.3 - Mother 25%
Out of the said compensation amount
awarded, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner No.1 as FD in any nationalized bank for a period of two years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate 16 (SCCH-16) MVC 4068/17 interest shall be released to her through A/c payee cheque on proper identification and verification.
Out of the compensation amount so apportioned in favour of the petitioner No.2 being the minor, entire compensation amount shall be deposited in the name of minor petitioner as FD in any nationalized bank of the choice of 1st petitioner till he attain majority.
Out of the said compensation amount awarded to the petitioner No.3, the entire amount with proportionate interest shall be released to her through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 02nd day of June 2018) (Subramanya N.) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Asha Shankarappa PW2 Sri P.B. Jayakrishna 17 (SCCH-16) MVC 4068/17
Documents marked on behalf of petitioners:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Sketch
Ex.P4 Mahazar
Ex.P5 IMV Report
Ex.P6 Inquest
Ex.P7 Postmortem Report
Ex.P8 Charge Sheet
Ex.P9 NC of 3 Aadhaar Cards
Ex.P10 NC of Election ID Cards
Ex.P11 NC of PAN Card
Ex.P12 NC of Passport
Ex.P13 NC of SSLC Marks Card
Ex.P14 ID Card
Ex.P15 Appointment letter
Ex.P16 6 Pay Slips
Ex.P17 Bank Statement
Ex.P18 Sanction Order
Ex.P19 Cancellation letter
Ex.P20 Authorization Letter
Ex.P21 CC of the Letter of Appointment
Ex.P22 CC of the Report Joining to duty
Ex.P23 Salary Certificate
Ex.P24 Service Book
18 (SCCH-16) MVC 4068/17
Ex.P25 Service Register containing the particulars of
the appointment etc.
Witnesses examined on behalf of respondent:
RW1 Sri Thimmaiah Documents marked on behalf of the respondent:
Nil (Subramanya N.) Member, MACT, Bengaluru.