IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 7878 OF 2016 (M V) CONNECTED WITH MFA NO 2701 OF 2015 (M V) MFA NO.7878/2016 BETWEEN 1. Sri Y. Narayanappa S/o Late Venkatappa Aged about 47 years 2. Smt Krishnaveni W/o Narayanappa Aged about 41 years Both are R/at No.5-56 Marrimakulapalli Gonumakulapalli Chittor-517001. ... Appellants (By Sri. Vasanthappa - Advocate) AND The Managing Director BMTC No.27, Shanthinagar Double Road Bengaluru-560027. ... Respondent (By Sri. D Vijaya Kumar – Advocate) This MFA is filed u/s 173(1) of MV act against the judgment and award dated 02.01.2015 passed in MVC No.1345/2014 on the file of the Member, MACT, 16th Additional Judge, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA NO.2701/2015 BETWEEN The Managing Director Bangalore Metropolitan Transport Corporation Central Office K. H. Road Shanthinagar Bengaluru-560027. ... Appellant (By Sri. D Vijaya Kumar – Advocate) AND 1. Sri Y. Narayanappa S/o Late Venkatappa Aged about 46 years 2. Smt Krishnaveni W/o Narayanappa Aged about 40 years Both are R/at No.5-56 Marrimakulapalli Gonumakulapalli Chittore District Andhra Pradesh. ... Respondents (By Sri. Vasanthappa – Advocate for R-1 and R-2) This MFA is filed u/s 173(1) of MV act against the judgment and award dated 02.01.2015 passed in MVC No.1345/14 on the file of the 16th Additional Judge, Court of Small Causes, Member, MACT, Bengaluru, awarding a compensation of Rs.8,50,000/- with interest @ 9% p.a. from the date of petition till the date of payment.
These appeals coming on for admission this day, the court delivered the following:
JUDGMENT Though these appeals are listed for admission, with the consent learned counsel on both sides, the same are taken up for final disposal.
2. These appeals are filed against the judgment and award dated 02.01.2015 passed by the Tribunal in MVC No.1345/2014.
3. MFA 7878/2016 is filed by the appellants/claimants seeking enhancement of the compensation. Whereas MFA 2701/2015 is filed by the appellant/BMTC on the ground of both negligence and quantum of compensation awarded by the Tribunal.
The factual matrix of the appeals is as under:
It is stated in the claim petition that the petitioners are the parents of the deceased Munikumar who was aged 24 years, he was coolie/mason and getting an income of Rs.500/- per day. On 15.02.2014, at about 8.00 am, the deceased was traveling on the motorcycle bearing No.KA- 52-W-5616 as pillion rider, when the motor bike was proceeding on Kadugodi road, near Barraiage Global Company, Bidarahalli Hobli, at that time BMTC bus bearing No.KA-01-F-3589 driven by its driver in rash and negligent manner came and dashed against the said motorcycle. As a result of the accident, the deceased fell down and sustained grievous injuries on his vital parts of the body. He was shifted to NIMHANS hospital but died while he was under treatment. Due to the untimely death of their son and having lost his love and affection, the claimants filed the claim petition before the Tribunal seeking compensation.
4. In pursuance of notice, the respondent – BMTC appeared before the Tribunal and filed statement of objections denying the petition averments and sought for dismissal of the petition. Based upon the pleadings, the Tribunal framed the issues. In order to establish their claim, first petitioner was examined as PW.1 and another witness as PW.2 and got marked documents as per Exs.P1 to P14. On behalf of the respondent, driver of the Bus was examined as RW.1 and no documents were produced. The Tribunal after hearing arguments of learned counsel for the claimants as well as BMTC and on evaluating the oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.8,50,000/- with interest @ 9% p.a. from the date of petition till the date of payment. It is this judgment which is challenged under this appeal by the claimants seeking enhancement of compensation and the BMTC on the ground of negligence and quantum, by urging various grounds.
5. Learned counsel for the claimants contends that the Tribunal ought to have considered the income of the deceased more than Rs.6000/- per month, as he was working as Mason at Bengaluru and accordingly, compensation under the head of loss of dependency ought to have been enhanced. Further, he contends the Tribunal ought to have considered the age of the deceased for the purpose of calculation and for awarding compensation as per the decisions of Hon’ble Apex Court. Further, the Tribunal has erred in awarding less compensation under the conventional heads and also erred in not awarding higher interest treating the claim petition as a suit for damages. On all these grounds, learned counsel for the claimants prays to allow his appeal by enhancing the compensation awarded by the Tribunal.
6. Per contra, Sri D.Vijay Kumar, learned counsel for BMTC who has also come up in appeal in MFA 2701/2015 on the ground of negligence and also on quantum contends that, the accident occurred mainly due to the negligence of the rider of the motor cycle and there is no rash or negligent act on the part of the driver of the BMTC bus, inspite of it the Tribunal has erred in fixing the entire negligence only on the part of the driver of the BMTC bus. Further, he contends that the complaint was given by one Sri Venu who was the rider of the motor cycle who caused the accident, he also sustained injuries in the said accident and in order to avoid his liability has lodged a false complaint against the driver of the BMTC bus.
Further, he contends that the Tribunal has failed to consider Ex.P.4 – Spot sketch, Ex.P5-Mahajar and Ex.P.7, IMV report while fixing the entire negligence only on the part of the driver of the BMTC bus. Further the rider of the motorcycle was not holding a valid driving licence and the compensation awarded by the Tribunal is excessive, exorbitant, imaginary and baseless. On all these grounds, he seeks intervention of this court and prays to set-aside the impugned judgment and award passed by the Tribunal.
7. In this background of the contentions taken by the learned counsel for the claimants and learned counsel for BMTC, it is relevant to state that there is no dispute with regard to the death of one Munikumar in a road traffic accident between the motorcycle bearing No.KA-52- W-5616 and BMTC bus bearing No.KA-01-F-3589. The petitioners have produced copies of FIR, Police intimations, sketch, mahazar, inquest panchanama, IMV report, PM report and charge sheet which are marked as per Exs.P1 to P9 which is corroborated by their evidence. The hospital records disclose that the deceased was taken to hospital with the history of road traffic accident. Both the vehicles were damaged and the accident was not due to mechanical defects of the vehicles but whether it was due to the negligence on the part of the rider of motorcycle or of the driver of the bus has to be considered.
8. Ex.P6 - Inquest panchanama and Ex.P8-PM report reveals that the deceased died due to the injuries sustained as a result of the accident. Ex.P2- the police intimation issued by the NIMHANS hospital states that deceased Munikumar has been registered in the casualty with alleged history of road traffic accident two wheeler rider hitted BMTC bus and fallen down. So also Ex.P4 spot sketch and Ex.P.5 Mahazar said to be drawn by the concerned authority clearly discloses that the motor cycle came from left side of the petrol bunk and suddenly entered the main road and dashed against the left side middle body of the bus which was going on the left side of the road. Further, Ex.P7-IMV report also establishes the fact that there is some contributory negligence on the part of the rider of the motor cycle also. These important aspects has not been appreciated by the Tribunal and erred in fixing the negligence only on the part of the driver of the BMTC bus. Therefore, in this appeal it requires re- appreciation of the entire evidence of PW.1 and 2 and so also RW.1 with regard to the negligence aspect. Therefore, keeping in view the above aspects, it is just and proper to fix the contributory negligence in the ratio of 60:40 between the driver of BMTC bus and the rider of the motor cycle.
9. The Tribunal while calculating the compensation under the head loss of dependency erred in taking the age of mother of deceased and applied 15 multiplier while calculating the amount. Therefore, in this case, by taking the age of the deceased, the compensation towards loss of dependency is re-worked out as under:
10. Further, the Tribunal has awarded Rs.20,000/- towards loss of love and affection and Rs.20,000/- towards transportation of dead body and funeral expenses which is on lower side. But having regard to the death of deceased, the petitioners being his parents having lost their son at a tender age, his love and affection and also having lost his earning, it would be just and appropriate to award additional sum of Rs.50,000/- towards loss of love and affection and Rs.30,000/- towards conventional heads.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads Awarded By MACT Enhanced by this Court Total Loss of dependency Loss of love and affection Transportation of 8,10,000 97,200 9,07,200 20,000 50,000 70,000 20,000 30,000 50,000
Thus, in all, the claimants are entitled to total compensation of Rs.10,27,200/- as against Rs.8,50,000/- awarded by the tribunal. Accordingly, I proceed to pass the following:
ORDER MFA No.7878/2016 filed by the claimants/appellants is allowed in part. The claimants are entitled for enhanced compensation of Rs.1,77,200/- with interest @ 9% p.a. from the date of petition till realisation.
MFA No.2701/2015 filed by the BMTC is allowed in part. The liability is apportioned between the BMTC and the rider of the motor cycle in the ratio of 60:40. The contributory negligence attributable to the rider of motor cycle is held to be 40%.
The impugned judgment and award dated 02.01.2015 passed by the Tribunal in MVC No.1345/2014 is modified, accordingly. The amount in deposit, if any, shall be transmitted to the Tribunal along with the lower court records for disbursement of compensation in terms of the award.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB