Karnataka High Court
Smt. Chandramma vs The Divisional Manager on 19 November, 2021
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6030 OF 2016(MV)
BETWEEN:
1. Smt. Chandramma,
W/o Krishna @ Krishnappa,
Aged about 36 years.
2. Shekar K.,
S/o Krishnappa,
Aged about 25 years.
3. Krishnappa,
S/o Hanumaiah,
Aged about 38 years,
All are R/at old No.276,
New No.96, 4th Cross,
Bhovi Colony,
S.G.Palya, Jayanagar,
Bangalore-560 029. ... Appellants
(By Sri. P.Mahadeva Swamy., Advocate)
AND:
The Divisional Manager,
BMTC., Central Office,
K.H.Road, Shanthinagar,
Bangalore-560 027. ... Respondent
(By Sri. Kaleemullah Shariff, Advocate (absent))
2
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.05.2016 passed
in MVC No.2389/2015 on the file of the 9th Additional
Small Causes Judge and XXXIV ACMM, Court of Small
Causes, Member, MACT-7, Bangalore, partly allowing the
claim petition for compensation and seeking enhancement
of compensation.
This MFA, coming on for admission, this day, this
Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 02.05.2016 passed by the Motor Accident Claims Tribunal, Bangalore (SCCH-7) in MVC No.2389/2015.
2. Facts giving rise to the filing of the appeal briefly stated are that on 28.01.2015 at about 11.20 a.m. the deceased Ravi was proceeding in a motorcycle bearing registration No.KA-02/EX-3782. When he reached near Tulips road, Sakalavara cross, 3 Jigani Hobli, Bangalore, at that time, all of a sudden, a BMTC bus bearing registration No.KA-01/FA-662 which was being driven in a rash and negligent manner, dashed against the vehicle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the spot.
3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
4. On service of summons, the respondent appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash 4 and negligent riding of the rider of the motorcycle since there were two pillion riders. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, one witness was examined as RW-1 and no documents were marked. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence of both the rider of the motorcycle as well as the driver of the BMTC bus at 50% each, as a result of which, the deceased sustained injuries and 5 succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.6,90,000/- (being 50% of Rs.13,81,000/-) along with interest at the rate of 8% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has raised the following contentions:
Firstly, the accident occurred due to the rash and negligent driving of the driver of the BMTC bus, the Tribunal only on the basis that the rider of the motorcycle was riding the same along with two pillion riders has held that he has contributed 50% to the accident. This finding of the Tribunal is contrary to the materials available on record. In support of his contentions, he has relied on the judgment of the Hon'ble Apex Court in the case of MOHAMMED 6 SIDDIQUE AND ANOTHER vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2020) 3 SCC 57 wherein it is held that unless it is proved that the rider of the motorcycle is negligent in causing the accident, just because three persons were riding in the motorcycle it cannot be held that the rider has contributed to the accident.
Secondly, immediately after the accident complaint has been lodged against the driver of the bus. The police have registered the FIR against the driver of the bus and after thorough investigation charge sheet has been filed against the driver of the bus. Therefore, it is very clear that the driver of the bus alone was negligent in causing the accident.
Thirdly, as per the mahazar and sketch it is very clear that the driver of the bus was driving the same in a rash and negligent manner and dashed to the motorcycle. Due to the impact the deceased Ravi fell 7 down and sustained injuries and succumbed to the injuries. The finding of the Tribunal that the rider of the motorcycle has contributed 50% to the accident is perverse and contrary to the materials available on record.
Fourthly, the claimants have examined the eyewitness one Nagaraj as PW-2. He has categorically deposed that the accident occurred due to rash and negligent driving of the driver of the bus. But the Tribunal has failed to consider this aspect of the matter.
Fifthly, the claimants claim that the deceased was aged about 19 years at the time of the accident and he was earning Rs.13,000/- per month by working in a printing press. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs.8,000/-.8
Sixthly, as per the law laid down by the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.
None appears for the respondent.
7. Heard the learned counsel for the appellant and perused the judgment and award and original records.
8. The case of the claimants is that on 28.01.2015 at about 11.20 a.m. the deceased Ravi was proceeding in a motorcycle bearing registration No.KA-02/EX-3782. When he reached near Tulips road, Sakalavara cross, Jigani Hobli, Bangalore, at that time, all of a sudden a BMTC bus bearing registration No.KA-01/FA-662 which was being driven 9 in a rash and negligent manner, dashed against the vehicle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the spot.
To prove their case claimants have examined the claimant No.1 as PW-1 and one Nagaraj, who is the eyewitness, as PW-2 and produced 11 documents.
9. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the 10 Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM (supra), the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond 11 reasonable doubt could not have been applied."
PW-1 in her evidence has reiterated the statement made in the claim petition. PW-2 Nagaraj who is the complainant as well as the eyewitness has stated that when he was standing on the side of the Tulip road, Bannerghatta - Bangalore road, Sakalavara cross, Jigani Hobli, Bangalore the driver of the bus bearing registration No.KA-01/FA-662 driven the same at a high speed and in a rash and negligent manner, dashed to the motorcycle. Due to the impact the deceased Ravi fell down and suffered an injury and succumbed to the injuries at the spot. Immediately after the accident he has lodged the complaint before the Bannerghatta Police. Immediately after the complaint police have registered FIR against the driver of the bus. The police have drawn mahazar as per Ex.P4 and drawn the sketch as per Ex.P6. It is very clear from the 12 above documents that the said road is proceeding from Bannerghatta to Bangalore, i.e., South to North. The motorcycle was proceeding from Bannerghatta towards Bangalore, i.e., from South to North. As per the complaint and the evidence of RW-1 and PW-2 the bus is also proceeding from Bannerghatta towards Bangalore, i.e., from South to North. The accident occurred on the edge of the road on eastern side. The respondent has examined the driver of the bus as RW- 1, he has categorically stated that the rider of the motorcycle was proceeding along with two pillion riders. When he tried to overtake the bus, the rider of the motorcycle lost the control and dashed against the bus. It is very clear from the police records, mahazar and the sketch that the rider of the motorcycle was proceeding with two pillion riders and he tried to overtake the bus. Since there are three persons who were traveling in the motorcycle, he lost control and 13 dashed to the bus. It is also very clear from the evidence of PW-2 who is the eyewitness that the driver of the bus was also driving the bus at a high speed and in a rash and negligent manner. Since he was driving the bus at a high speed he was unable to control the bus. If the driver of the bus was driving the same in a moderate speed he could have controlled and avoided the accident. Therefore, he has also contributed to the accident. By considering the evidence of PW-1 and PW-2 and RW-1 and considering the mahazar, I am of the opinion that the driver of the bus has contributed 80% to the accident and the rider of the motorcycle has contributed 20% to the accident. In the judgment relied upon by the learned counsel for the claimant in MOHAMMED SIDDIQUI (supra), the Hon'ble Apex Court has held that since the motorcycle was being ridden with two pillion riders, unless it is established that the act of 14 the rider with two others contributed to the accident or the impact of that accident upon the victim, it cannot be held that he has contributed to the accident. In the case on hand, by considering the evidence of RW-1 and also considering the sketch and mahazar, it is very clear that the rider of the motorcycle was proceeding with two pillion riders, trying the overtake the bus and lost control over the motorcycle and dashed against the bus. Therefore he has also contributed to the accident.
Re.quantum:
11. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2015, the notional income has to be taken at Rs.9,000/- p.m. 15 To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs.12,600/-, out of which, since the deceased was a bachelor, it is appropriate to deduct 50% towards personal expenses and therefore, the monthly income comes to Rs.6,300/-. The deceased was aged about 19 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimants are entitled to compensation of Rs.13,60,800/- (Rs.6,300*12*18) on account of 'loss of dependency'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'. 16
In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE (supra), the claimants are entitled for compensation of Rs.40,000/- each under the head of 'loss of love and affection and consortium'.
12. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 13,60,800
Funeral expenses 15,000
Loss of estate 15,000
Loss of Parental 80,000
consortium
Loss of love and 40,000
affection
Total 15,10,800
The claimants are entitled to a total
compensation of Rs.15,10,800/-.
The Corporation is directed to deposit 80% of the compensation amount along with interest from the date of filing of the claim petition till the date of 17 realization, within a period of six weeks from the date of receipt of copy of this judgment. The enhanced compensation carries interest @ 6% p.a. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE Cm/-