IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.4994 of 2017 (MV) C/W MISCELLANEOUS FIRST APPEAL No.7489 of 2017 (MV) IN MISCELLANEOUS FIRST APPEAL No.4994 of 2017 BETWEEN :
THE MANAGING DIRECTOR B.M.T.C., K.H.ROAD SHANTHINAGAR BANGALORE – 560 027.
REPRESENTED BY IT’S CHIEF LAW OFFICER. ... APPELLANT (BY SRI.F.S.DABALI, ADVOCATE) AND:
1. SMT.MANGALAMMA W/O.LATE GAVISIDDAIAH.S.M. AGED ABOUT 58 YEARS 2. ROOPAKALA D/O.LATE GAVISIDDAIAH.S.M. AGED ABOUT 33 YEARS RESPONDENT NO.1 AND 2 ARE RESIDING AT NO.19/1 12TH CROSS, JAVAREGOWDANAGAR RAJARAJESWARINAGAR NEAR ASWINI SCHOOL BANGALORE – 560 098. ...RESPONDENTS (BY SRI.D.S.SRIDHAR, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY/SET ASIDE THE JUDGMENT AND AWARD DATED 25.03.2017 PASSED IN MVC NO.3260/2013 ON THE FILE OF THE XXI ADDITIONAL C.M.M. AND XXIII ADDITIONAL SMALL CAUSES JUDGE, M.A.C.T. COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.23,05,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
MISCELLANEOUS FIRST APPEAL No.7489 of 2017 BETWEEN :
1. SMT.MANGALAMMA W/O.LATE GAVISIDDAIAH.S.M. AGED 58 YEARS 2. ROOPAKALA D/O.LATE GAVISIDDAIAH.S.M. AGED 33 YEARS BOTH ARE R/AT NO.19/1 12TH CROSS, JAVAREGOWDANAGAR RAJARAJESWARINAGAR NEAR ASWINI SCHOOL BENGALURU – 560 027. ... APPELLANTS (BY SRI.SRIDHAR.D.S., ADVOCATE) AND:
THE MANAGING DIRECTOR B.M.T.C., K.H.ROAD SHANTHINAGAR BENGALURU – 560 027. ...RESPONDENT (BY SRI.F.S.DABALI, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25.03.2017 PASSED IN MVC NO.3260/2013 ON THE FILE OF THE XXI A.C.M.M. AND XXIII ADDITIONAL SMALL CAUSES JUDGE, M.A.C.T. COURT OF SMALL CAUSES, AT BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ORDERS THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with consent of learned counsel on both sides, they are heard finally.
2. MFA.No.4994/2017 is filed by the Karnataka State Road Transport Corporation (hereinafter referred to as “KSRTC” for the sake of convenience), while MFA.No.7489/2017 is filed by the claimants being the wife and daughter of deceased Gavisiddaiah S.M., who died in a road traffic accident that occurred on 03.12.2012, both assailing the judgment and award of the Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru (hereinafter referred to as “the Tribunal” for the sake of convenience) dated 25.03.2017, in MVC.No.3260/2013, being aggrieved by the compensation awarded by the Tribunal.
3. For the sake of convenience, the parties shall be referred to in terms of the status and ranking before the Tribunal.
4. Claimant No.1 is the wife and claimant No. 2 is the daughter of deceased – Gavisiddaiah S.M., who died in a road traffic accident that occurred on 03.12..2012 at about 3.10 p.m. It is the case of the claimants that when the deceased – Gavisiddaiah S.M. was crossing the service road in front of BMTC Depot No.2, Bangalore, at that time, a bus bearing registration No. KA-01-F-8861 driven by its driver in a rash and negligent manner, dashed against the deceased, as a result of which the deceased sustained severe chest injuries and collapsed at the spot. Immediately, the driver of the BMTC bus and others took him to the BMTC hospital, wherein he was declared as brought dead. It is also stated by the claimants that when the body was shifted to Victoria Hospital, the driver of the offending bus informed the Police that the deceased collapsed complaining of chest pain and died due to cardiac arrest. Thereafter, the Wilson Garden, Law and Order Police, registered UDR case in UDR No.36/2012 under Section 174 of Cr.P.C., but the doctor who conducted post mortem examination and submitted his report opined that the death was due to injuries sustained in the road accident. Later on, the Law and Order, Police Department, transferred the case to the Traffic Police and Crime No. 11/2013 was registered and after investigation, charge sheet was filed against the driver of the offending vehicle. It was also stated by the claimants that the deceased was hale and healthy and due to the untimely death of the deceased - Gavisiddaiah S.M., the family had lost the bread earner in the family. Further, they had lost the love and affection of the deceased. Hence, they sought compensation on various heads.
5. In response to the notice issued by the Tribunal, respondent/Corporation appeared and filed written statement and denied the claim petition averments. It is stated by the Corporation that the claim petition is not maintainable either in law or on facts. They contended that there was no accident caused by the offending bus, and in order to help the claimants, a false case was registered against the driver of the offending vehicle. They also stated that on 3.12.2012 at about 2.20 p.m., the bus driver had taken the bus out of the depot at Shanthinagar and there was heavy traffic and buses were stationed one behind the other, and at that time the driver of the offending bus got down and found that one person had collapsed on the road. Observing the same, the bus driver and the general public, on humanitarian grounds, tried to help the deceased and admitted him to the hospital. The respondent/Corporation stated that there was no such accident as alleged by the claimants. Therefore, they sought for dismissal of the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues for its consideration :
1. Whether the petitioners prove that they are the legal heirs of the deceased Mr. Gavisiddaiah ?
2. Whether the petitioners prove that, death of Sri. Gavisiddaiah on 03.12.2012 at about 1.10 p.m. is due to rash and negligent driving of the BMTC bus bearing Reg.No.KA-01-F-8861 by its driver and dashing against deceased, who was pedestrian, at BTS Road, Brigade road in front of BMTC Depot No.2, Bangalore ?
3. Whether the petitioners are entitled for compensation ? If so, how much and from whom ?
4. What Order or award ?
7. In order to substantiate their case, claimant No.1 was examined as PW.1 and one more witness who has filed the charge sheet was examined as P.W.2 and they produced 16 documents which were marked as Exs.P.1 to P.16. On the other hand, the respondent examined the driver of the offending bus, the Divisional Security Inspector, BMTC and the Supervisor of KSRTC, Central Division as R.Ws. 1 to 3 and produced ten documents which were marked as Exs.R.1 to R.10.
8. On the basis of the material evidence on record, the Tribunal answered Issue Nos.1 and 2 in the affirmative and Issue No.3, partly in the affirmative and awarded compensation of Rs.23,05,,000/- with interest at the rate of 8% per annum from the date of petition till realization.
9. Being aggrieved by the quantum of compensation awarded by the Tribunal, the claimants have preferred MFA 7489/2017 seeking enhancement of compensation, while the respondent – Corporation has filed MFA 4994/2017 seeking reduction in the compensation awarded by the Tribunal. In the circumstances, both the appeals have been connected and heard together and are disposed of by this common judgment.
10. We have heard Sri. D.S.Sridhar, learned counsel for appellants and Sri. F.S.Dabali, learned counsel for the respondent/Corporation and perused the material on record.
11. Learned counsel for the appellants in MFA No.
7489/2017 submitted that the award passed by the Tribunal is unsustainable in law and hence the same is liable to be set aside. It was also contended that the Tribunal has erred in assessing the income of the deceased at Rs.30,000/- per month, as he was a driver in KSRTC and was drawing salary of Rs.45,000/- per month. That the Tribunal ought to have taken the gross salary instead of take home salary and therefore submitted that the award of compensation under the head of ‘loss of dependency’ is on the lower side. Further in view of the decision of the Apex Court, the tribunal ought to have considered the future prospects of the deceased and ought to have added 50% to the income of the deceased. It is also contended by appellants’ counsel that the award of compensation on the other heads is very meagre and that the award of interest is also very low and hence, the same is liable to be enhanced. Thus, prayed for enhancement of the compensation.
12. Learned counsel for the respondent while supporting the award contended that there was no accident caused by the bus and that a false case was registered against the driver of the bus in order to help the claimants. They also stated that on 03.12.2012 at about 2.20 p.m. the bus driver had taken the bus out of the depot at Shanthinagar and there was heavy traffic and buses were stationed one behind the other and at that time the driver of the offending bus got down and found that one person had collapsed on the road. Observing the above incident, the bus driver and general public shifted the deceased and admitted him to the hospital. Hence, he contended that there was no such accident as alleged by the claimants. Therefore, they submitted that the Corporation has also filed an appeal challenging the judgment and award, and the grounds urged in the appeal memo may be read as part and parcel of the statement of objections and sought for the dismissal of the appeal.
13. It is also contended that the Tribunal has erred in treating the second claimant as dependent. Further, the son of the deceased is also working as Driver in BMTC and therefore, the deceased was not the sole earning member in the family. Therefore, he submitted that the Tribunal ought to have deducted 50% of the amount towards personal expenses of the deceased while awarding amount towards ‘loss of dependency’.
14. Nextly, he submitted that the Tribunal is not justified in calculating the income of the deceased at Rs.30,000/- per month and in deducting 1/3rd of the expenses towards personal expenses. Finally, he submitted that the award of compensation on other heads is very high and prayed for setting aside the judgment and award of the Tribunal.
15. Having heard the learned counsel for both parties, the following points would arise for our consideration:
1. Whether the compensation awarded by the Tribunal is sustainable in law and if so what order ?
2. Whether the award of compensation requires reassessment by this Court?
16. As could be seen from the award, the Tribunal has appreciated and considered in detail the material evidence on record. Further the Tribunal has also considered the evidence of the Investigation officer Mr. Shiv Kumar. Though the witnesses (claimants) were cross examined by the counsel for the respondents, nothing has been elicited to discard the evidence of the claimants as regards the occurrence of the accident. Further to substantiate the defence, the respondents have failed to prove the non-involvement of the offending vehicle. Therefore, we are of the opinion that the claimants have established that the deceased Gavisiddaiah S.M. died in a road accident due to the rash and negligent driving of the driver of the offending bus.
17. The next question which needs to be answered is whether the claimants are entitled for enhanced compensation.
18. It is not in dispute that the deceased was aged 60 years and has died in the road accident. It is also not in dispute that the deceased Gavisiddaiah S.M. was a driver and was employed in KSRTC. The last drawn salary of the deceased which is in the month of November, 2012, was Rs.44,167/- and if the same is multiplied annually the same would come to Rs.5,30,004/-. A sum of Rs.2400/- will have to be deducted towards professional tax and the same would amount to Rs.5,27,604/-. Out of the said amount, 10% has to be deducted towards income tax and the same would amount to Rs.4,74,843/- and the same will have to be divided by 2 and which would amount to Rs.2,37,421 /- and 10% of the same is Rs.23,742/- and if it is added, the same amounts to Rs.2,61,163/- and the same has to be multiplied by ‘9’ (Rs.2,61,163 x 9) which amounts to Rs.23,50,467/-. Therefore, we hereby reckon the compensation amount as Rs.23,50,467/- towards loss of dependency.
19. Having regard to the judgment of the Hon’ble Supreme Court in the case of PRANAY SETHI, the claimant No. 1 – widow of the deceased is entitled to Rs.40,000/- towards ‘loss of spousal consortium’. Claimant No. 2 – daughter of the deceased is entitled to Rs.30,000/- towards loss of ‘parental consortium’, A sum of Rs.15,000/- is awarded on the head ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’.
20. The re-assessed compensation is as under:
TOTAL Rs.24,50,467/-
21. The reassessed compensation shall carry interest at the rate of 6% p.a. instead of 8% as awarded by the Tribunal from the date of claim petition till its realisation.
22. In view of reassessment of the compensation, the apportionment is as follows:
The Tribunal has apportioned Rs.15,00,000/- to the widow of the deceased. The said apportionment is confirmed. However, the widow of the deceased shall deposit the said amount in a Post Office and/or Nationalised Bank Deposit, for an initial period of 10 years. She shall be entitled to draw periodical interest on the said amount. The balance compensation shall be apportioned equally between the two claimants and released to them after due identification.
23. In the result, the appeal filed by the claimants (MFA.No.7489/2017) is allowed in part. The amount in deposit be transmitted to the Tribunal.
24. The appeal filed by the KSRTC (MFA.No.4994/2017) is disposed in the aforesaid terms. The Corporation shall deposit the balance compensation within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
The amount in deposit, if any, to be transmitted to the Tribunal.
Sd/- JUDGE Sd/- JUDGE Mgn/-