Karnataka High Court
Bangalore Metropolitan Transport ... vs Smt Umadevi on 25 September, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
M.F.A.No.6024/2014 c/w
M.F.A. CROB. No.13/2016 (MV)
IN M.F.A.No.6024/2014:
BETWEEN :
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H ROAD,
SHANTHINAGAR,
BANGALORE-560027
BY ITS MANAGING DIRECTOR ...APPELLANT
(BY SRI D.VIJAYA KUMAR, ADV.)
AND :
1. SMT.UMADEVI
W/O LATE MANJUNATH,
AGED ABOUT 37 YEARS
2. MASTER MANOJ
S/O LATE MANJUNATH,
AGED ABOUT 17 YEARS
3. KUMARI HEMA
D/O LATE MANJUNATH,
AGED ABOUT 11 YEARS
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4. SMT.GOWRAMMA
W/O LATE BASAVARAJ
AGED ABOUT 62 YEARS
RESPONDENT No.2 & 3 ARE MINORS
REP BY THEIR MOTHER AND
NATURAL GUARDIAN SMT.UMADEVI
THE 1ST RESPONDENT.
ALL ARE R/AT GUDEMARANAHALLY
VILLAGE AND POST,
SOLUR HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT. ...RESPONDENTS
(BY SRI M.RAJASHEKAR, ADV.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
19.02.2014 PASSED IN MVC No.5999/2012 ON THE FILE OF
THE XVIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF
Rs.27,56,640/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
IN M.F.A. CROB. No.13/2016:
BETWEEN :
1. SMT.UMADEVI
W/O LATE MANJUNATH
AGED ABOUT 39 YEARS
2. MASTER MANOJ
S/O LATE MANJUNATH
AGED ABOUT 17 YEARS 9 MONTHS
3. KUMARI HEMA
D/O LATE MANJUNATH
AGED ABOUT 13 YEARS
CROSS OBJECTORS No.2 & 3
ARE MINORS, REP BY THEIR MOTHER
AND NATURAL GUARDIAN
CROSS OBJECTOR NO.1
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4. SMT.GOWRAMMA
W/O LATE BASAVARAJ,
AGED ABOUT 64 YEARS
ALL ARE R/AT GUDEMARANAHALLI
VILLAGE AND POST,
SOLUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT-562120 ...CROSS OBJECTORS
(BY SRI M.RAJASHEKAR, ADV.)
AND :
THE MANAGING DIRECTOR
BMTC, K.H.ROAD,
BANGALORE-560027 ...RESPONDENT
(BY SRI D.VIJAYA KUMAR, ADV.)
THIS M.F.A. CROB. IN M.F.A.No.6024/2014 IS FILED
UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT
AND AWARD DATED 19.02.2014 PASSED IN MVC No.5999/2012
ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT-4, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. ALONG WITH M.F.A. CROSS OBJECTION
COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Since both the appeal and the cross objections arise out of the same accident, they are clubbed, heard together and disposed of by this common judgment. -4-
2. The claimants alleging that on 12.9.2012 at about 5 p.m. when Sri. Manjunath was waiting to board the bus near Yeshwanthpura Circle, at that time, the driver of the BMTC bus bearing Reg.No.KA-01-F-3195 came from 8th main road in a rash and negligent manner and dashed against Manjunath, as a result, he sustained multiple severe injuries and succumbed to the said injuries on the same day, filed claim petition under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short]. It was contended that the deceased was aged about 38 years at the time of the accident. He was working as a driver-cum-conductor of BMTC and drawing salary of Rs.17,000/- per month. Due to his untimely death, the claimants have lost their dependency. On these grounds, they claimed total compensation of Rs.32,00,000/- against the BMTC.
3. In response to the notices issued by the Tribunal, BMTC appeared and contested the claim filing -5- written statement denying the negligence and also quantum of compensation. The primary defence taken was, the accident occurred mainly due to the negligence of the deceased himself.
4. On the basis of the pleadings, the Tribunal framed the issues and answered in terms of the reasons recorded in the impugned judgment awarding total compensation of Rs.27,56,640/- with interest at 6% p.a. from the date of petition till the date of deposit.
5. Being aggrieved, the BMTC has field the appeal challenging the negligence and quantum of compensation, whereas the claimants have preferred cross objections seeking for enhancement of compensation.
6. Learned counsel appearing for the BMTC submitted that the Tribunal failed to appreciate the negligence aspect, the main defence taken in the -6- statement, in a right perspective. The complainant one Sri. Nagabhushan, the police constable was not at the place of the accident and he gave a false complaint against the driver of the BMTC bus. On the basis of the false complaint, the jurisdictional police have filed a false criminal case. The Tribunal relying upon the said false case proceeded to hold that the negligence of the driver of the offending vehicle has caused the accident in question ignoring the relevant evidence i.e., Ex.P6- the spot sketch and Ex.P7-the spot mahazar which clearly demonstrate that there was no bus stop at the place of accident and the accident in question has taken place in the middle portion of the curved road where the deceased was not supposed to stand. The Tribunal erroneously fixed entire negligence on the part of the driver of the BMTC bus which is unjustifiable. The contributory negligence of the deceased being apparent, the entire negligence fixed on the driver of the offending vehicle calls for interference.
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7. As regards quantum, it was submitted that the deceased was aged about 42 years as per the driving licence Ex.P16. The claimants in order to get more benefits, have wrongly stated the age of the deceased as only 38 years. Believing the same, the Tribunal has applied the multiplier of 15 instead of 14. The learned counsel placing reliance on the pay slips of the deceased now placed on record as additional documents along with I.A.2/2014 contended that the gross pay of the deceased during May, June and July 2012 was Rs.10,920.72, Rs.13,051.72 and Rs.12,590.72 respectively. However, the Tribunal has determined the monthly income of the deceased at Rs.15,536/- referring to Ex.P14 relating to the month of August 2012. At least average of these three months gross salary has to be considered for assessing the income of the deceased. The Tribunal erred in adding 30% of income towards future prospects. It was further argued -8- that the compensation awarded under the different conventional heads is excessive.
8. Learned counsel for the claimants submitted that the Tribunal has wrongly determined the monthly income of the deceased at Rs.15,536/- much against the evidence. The Tribunal ought to have taken the income of the deceased at Rs.16,500/- per month and 50% towards future prospects could have been added. Applying the multiplier of 15, loss of dependency ought to have been reckoned. The compensation awarded under different conventional heads is meager; the interest at 6% p.a. awarded on the quantum of compensation determined is not justifiable. As regards the negligence, the learned counsel justifying the finding of the Tribunal submitted that the negligence of the driver of the offending vehicle was the cause for the accident. The deceased Manjunath was waiting to board the bus. The offending vehicle was rammed against the -9- deceased due to the rash and negligent driving of the offending vehicle. Hence, the entire negligence has to be fixed on the driver of the offending vehicle confirming the finding of the Tribunal on this aspect.
9. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
10. The points that arise for our consideration are:
1. Whether the deceased Manjunath contributed for the occurrence of the accident in question?
2. Whether the quantum of compensation awarded by the Tribunal is just and proper?
11. Re. Point No.1: The factum of accident and death of Sri.Manjunath who was also an employee of the BMTC are not in dispute. It is true that FIR at
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Ex.P1 and copy of mahazar at Ex.P7 evinces that the jurisdictional police have registered the case against the driver of the offending vehicle. IMV report at Ex.P8 shows that the accident was not due to any mechanical defect of the offending vehicle. The police have filed the charge sheet as per Ex.P11 against the driver of the offending vehicle. Ex.P6 sketch drawn on the scene of occurrence indicates that the deceased was standing on the left side of the road where there was no bus stop nor footpath for the pedestrians to stand or walk. Indeed, the bus has moved from 8th Main Road towards Tumkur Road by taking a left turn. The driver of the offending vehicle was examined as RW-1 who has deposed that while he was driving the offending vehicle carefully and cautiously by observing all traffic rules and regulations at a slow speed of about 20 to 25 kms per hour, while taking the left turn at Yeshwanthapur signal, the deceased attempted to board the moving bus from the front door but lost his balance and fell down, due to
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which he sustained injuries on his own fault. Immediately he along with the conductor of the bus rushed to help the injured person and took him to the nearby Columbia Asia hospital for medical treatment. The deceased being the intending passenger failed to take reasonable care of himself while boarding the moving bus. The spot sketch at Ex.P6 coupled with the evidence of RW-1 indicates that the accident has taken place in the left portion of the curved road where the deceased was not supposed to stand when there is no footpath. It cannot be disputed that no passenger can board or alight the bus at their convenient spots except at the designated bus stops. The passengers are also not supposed to board or alight from the moving bus albeit the bus is moving at a lower speed. The passengers are required to follow the traffic rules and regulations, standing at the spot other than the bus stand more particularly, when there is no footpath, on the main road, indicates the contributory negligence of
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the deceased. Having regard to the material evidence available on record, we deem it appropriate to fix the contributory negligence at 10% on the part of the deceased as he has also contributed to the occurrence of the accident in standing on the main road which is earmarked for plying of the vehicles. The greater negligence is on the part of the driver of the offending vehicle as the bus has moved towards the extreme left side of the road to facilitate the deceased to board the bus. Even if a passenger is intending to board or alight from the bus at any other place other than the designated bus stop, slowing down the bus or moving in that direction to facilitate such passenger would certainly indicate the negligence of the driver of the bus. Even if any employee of the BMTC is trying to board the bus in a place other than the bus stop, the driver of the offending vehicle ought not to have moved to the extreme left portion of the main road. The driver of the heavier vehicle has to take care of the traffic as well as
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the pedestrians. If minimum care had been taken by the driver of the offending vehicle, the accident in question would have been averted. Thus, the documents on record would speak about the major contribution of the driver of the offending vehicle in causing the accident. Hence, we fix negligence to the extent of 90% on the driver of the offending vehicle.
12. Re. Point No.2: Learned counsel for the Corporation strenuously argued that the pay slips of the deceased for the periods June and July 2012 has to be taken for determining the monthly income, not Ex.P14 the certificate issued by the BMTC relating to the period, August 2012. We are not able to countenance the said arguments as the last drawn pay of the deceased is relevant for assessing the income of the deceased not of the earlier periods. Moreover, Ex.P14 related to August 2012, has been issued by the competent Authority of the BMTC which cannot be disputed.
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Learned counsel for the claimants also has placed the pay slip for the month of August 2012 before the court which clearly supports Ex.P14 inasmuch as the deceased drawing the monthly income of Rs.15,536/-.
13. The Tribunal has considered the age of the deceased as 38 years and has applied the multiplier 15. Ex.P16 the driving licence of the deceased would disclose that he was aged about 42 years at the time of the accident. In the circumstances, it would be appropriate to consider the age of the deceased in terms of Ex.P16, the driving licence since the deceased was working as a driver of the BMTC. Future prospects has to be awarded, adding 30% of the monthly income in terms of the judgment of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680)
14. Applying the multiplier of 15 considering the age of the deceased as 42 years at the time of the
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accident, adding 30% towards future prospects of the income determined at Rs.15,536/-, deducting ¼ of the income towards personal and living expenses of the deceased, loss of dependency shall be Rs.25,44,796/- (Rs.15,536 + 30% x 12 x 14 x ¾). The claimants are entitled to compensation under the conventional heads in terms of the judgment in Pranay Sethi supra and the New India Assurance Company Limited V/s. Somwati and Others [Civil Appeal No3093 of 2020 and Connected matters, D.D. on September 7, 2020]
15. Accordingly, the total compensation is re- assessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 25,44,796
Loss of spousal
2. 40,000
Consortium
Loss of parental
3. consortium (Rs.40000 80,000
each to minor child)
4. Loss of filial consortium 40,000
5. Loss of estate 15,000
4. Funeral expenses 15,000
Total 27,34,796
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16. As we have apportioned 10% of contributory negligence on the part of the deceased, deducting the same, the claimants are entitled to a sum of 24,61,317/- towards compensation. Hence, the following :
ORDER
i) The total compensation awarded by the Tribunal is modified and reduced to Rs.24,61,317/- as against Rs.27,56,640/-
with interest at 6% p.a., from the date of petition till its realization.
ii) Both the appeal as well as the cross objections stand disposed of in terms of the above.
iii) Pending I.As, stand disposed of accordingly.
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iv) Registry shall transfer the amount in deposit with the original records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE Dvr: