Partly allowed

Smt Sharavana Prabha v. the Manager

Karnataka HC22 Apr 2022MFA/3417/2012

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal against a Motor Accident Claims Tribunal (MACT) order dismissing a compensation claim. The Court held that the deceased died due to the bus driver's sudden braking, attracting liability under the principle of res ipsa loquitor, rejecting the Tribunal's finding of no rash driving. The Court quashed the MACT order and enhanced compensation to Rs. 9,66,400 b

What did the court decide?

The impugned judgment and award were set aside, and compensation of Rs. 9,66,400 along with interest at 6% per annum was awarded.

Smt Sharavana Prabha Vs the Manager — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.3417/2012 (MV)

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BETWEEN:

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SMT. SHARAVANA PRABHA, WIFE OF LATE. V.G.SRINIVAS, AGED ABOUT 35 YEARS,

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KUM. MRUTHUVARSHINI, D/O LATE. V.G. SRINIVAS, AGED ABOUT 09 YEARS, SINCE MINOR, REPRESENTED BY HER MOTHER/NATURAL GUARDIAN SMT. SHARAVANA PRABHA

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GNANESHWARI, W/O P.V. GUNASHEKAR, AGED ABOUT 60 YEARS,

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ALL ARE RESIDING AT # 982, GEETHA ROAD, CHAMARAJA MOHALLA, MYSORE-570005.

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… APPELLANTS

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(BY SRI C.M. JAGADEESH, ADVOCATE THROUGH V/C)

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AND:

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THE MANAGER, K.S.R.T.C., BANGALORE.

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THE DEPOT MANAGER, K.S.R.T.C, BANNIMANTAP DIVISION, MYSORE-570015.

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... RESPONDENTS

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(BY SRI. D. VIJAYKUMAR, ADVOCATE FOR R1 AND R2 THROUGH V/C)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:2.1.2012 PASSED IN MVC NO.1202/2010 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, MACT, MYSORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION AND ETC.,

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THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act, by the appellants-claimants, challenging the judgment and award dated 02.01.2012, passed in MVC No.318/2008, on the file of I^st Additional District And Sessions Judge and MACT, at Mysuru, seeking enhancement.

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Brief facts:

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That on 11.06.2008, at about 10.30 p.m., the deceased boarded KSRTC Bus bearing registration

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No.KA.01/F.7748 at KSRTC Bus Stand at Mysuru in order to go to Coimbatore on his personal work. The said bus was driven by KSRTC Driver and when the said bus reached Asanur at Tamilnadu on 12.06.2008 at about 5.00 a.m., and when the said bus was plying on Kombupalyam Bridge, at that time one Mini Lorry bearing registration No.KL.12/2955, which was coming from the opposite direction on the same bridge, the driver of the said KSRTC bus suddenly applied brake and took turn the bus to left side in order to avoid the accident from the opposite vehicle. Due to the sudden brake to the said bus, the deceased who was sitting in front seat of the bus, was thrown out from the bus from front glass panel and thereby sustained grievous injuries to his head and bleeding injuries all over his body, and died on the spot.

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The learned counsel for the appellantsclaimants submits that this factum of accident is clearly proved in the evidence, but the Tribunal has wrongly observed that there was no rash and negligent driving on part of the bus driver of the KSRTC. Hence, dismissed the

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petition on this ground, which is not correct. Further, the learned counsel submitted that when the deceased died in the said accident, when he was traveling in KSRTC bus, then the appellants being Legal Representatives are entitled for compensation. Therefore, prays to allow the appeal by setting-aside the impugned judgment and award passed by the Tribunal.

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On the other hand, the learned counsel appearing for respondent Nos.1 and 2 vehemently submitted that there was no rash and negligent driving on part of the driver of the KSRTC bus, which is rightly considered by the Tribunal. Further, submitted that the mini goods vehicle bearing registration No.KL.12/2955, in question which was coming opposite to KSRTC bus in turn had not switched on the head lights. Therefore, the driver of the KSRTC in order to avoid the accident applied the brake, otherwise the bus would have fallen on the ditch, together with the driver of the KSRTC bus who was driving the bus with all occupants. Hence, there is no negligence

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on the part of the KSRTC bus, which is rightly observed by the Tribunal. Therefore, prays for dismissal of the appeal.

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The Tribunal has dismissed the claim petition on the ground that there was no rash and negligent driving on part of the driver of KSRTC bus. Further, the Tribunal observed in para–18 of the judgment that the accident was caused due to the driver of the mini lorry, which was coming opposite to the KSRTC bus. But the owner and insurer of the said mini lorry was not made as parties. Hence, the claim petition was not maintainable, for this reason also the claim petition was dismiss.

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While dismissing the appeal, the Tribunal has

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discussed as to under what circumstance the driver of the bus had applied brake suddenly as the mini lorry had come suddenly opposite to the KSRTC bus. Therefore, in order to avoid probable accident the driver was constrained to apply brakes. Under these circumstances, the deceased was thrown out from front glass panel of the bus and not due to rash and negligent driving of the driver of the bus. Therefore, dismissed the claim petition. Therefore, only for

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the reason that there is no proof of rash and negligent driving on the part of the driver of the KSRTC bus, the claim petition was dismissed.

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Upon considering the factual matrix involved in the evidence on record it is not disputed fact the deceased was traveling in the KSRTC bus bearing registration No.KA.01/F.7748 from Mysore to Coimbatore on his personal work. The said bus was driven by KSRTC Driver and when the said bus reached Asanur at Tamilnadu on 12.06.2008 at about 5.00 a.m., and when the said bus was plying on Kombupalyam Bridge, at that time one Mini Lorry bearing registration No.KL.12/2955, was coming from the opposite direction on the same bridge, the driver of the said KSRTC had applied brake suddenly due to which, the deceased was thrown from the front glass panel of the bus and fallen down on the road and suffered fatal injuries and thereafter succumbed to the injuries. This factual matrix is not disputed.

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It is the contention of the learned counsel for respondent Nos.1 and 2 – KSRTC bus that it was inevitable

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for the driver of the bus to apply brake in order to avoid probable accident with the mini lorry that had come suddenly in the opposite direction. Under these circumstances, the driver of the bus had applied brake suddenly. Otherwise the bus would have fallen into the ditch. Therefore, it is the contention of learned counsel for KSRTC that the driver of the bus was not rash and negligent.

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While considering the rival submissions and also upon perusal of the evidence on record as discussed above, the undisputed fact is that the deceased was traveling in the KSRTC and was thrown out from the front glass panel and succumbed to the injuries. In this regard, the evidence of PW-2, who was passenger traveling in the said bus had witnessed in the accident, is considered. The driver of the KSRTC bus is also examined as RW-1 but the driver of the KSRTC had given his evidence in the form of an Affidavit evidence stating that he was driving the KSRTC bus as above stated and at morning 5 a.m., as above stated, the accident occurred. Therefore, it is proved

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by the evidence on the part of the part of the driver that the deceased was thrown out from the bus and thus the deceased succumbed to the injuries.

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Further, RW-1 driver of the bus had stated that he was not rash and negligent in driving the bus and when he applied brake in the bus, it is a fact that deceased was traveling in the bus and due to the use of KSRTC bus and due to sudden application of brake, the accident was caused. Therefore, the factum of accident is to be considered on the principle res-ipsa-loquitor. Therefore, under these circumstances, it cannot be said that just because there was no rash and negligent driving of the bus by the driver, the claimants are not entitled for compensation. Whether the driver of the bus was rash and negligent or not and the punishment for which would be decided in a trial before the Criminal Court, but it is a fact proved as discussed above that the deceased died due to throwing out from the bus from the front glass panel. Therefore, even though whatever might have been the action on the part of the driver of the KSRTC, but fact is

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that the said mishap happened due to the sudden application of brake of the bus. Therefore, this is sufficient to hold that while considering this petition that the driver of the KSRTC bus was also negligent and rash in driving the bus due to which the deceased died in the said accident. Therefore, in this regard the observation made by the Tribunal are not correct, that there is no rash and negligent driving of the bus by its driver. Therefore, the appellants-claimants who are the legal representatives of the deceased are entitled for compensation.

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The reasoning assigned by the Tribunal that the owner and insurer of the mini lorry in question were not made as party and hence the claim petition is not maintainable is not correct. Upon perusal of Exhibit-P2, FIR which is English translation of the FIR, the offence is alleged only against the driver of the bus, but not driver of the mini lorry. Therefore, the observation of the Tribunal in this regard is mere on surmises and conjunctures.

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PW-2 is the eye-witness to the accident. During the course of examination it is revealed that the

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deceased died in the accident. Even though PW-1 is the wife of deceased and not eye-witness, but she has narrated the incident during the course of crossexamination and also nothing contrary is proved to show that the accident did not occur and the deceased did not die in the said accident. Therefore, upon considering the evidence on record while applying the principle of res-ipsaloquitor, it is proved that the deceased died in the accident as above stated. The result of acquittal of the order or conviction in the criminal case is irrelevant.

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The appellants have filed application in I.A.No.1/2019 for production of additional evidence by producing certified copy of the judgment rendered by the court of the Magistrate in the criminal case, in which the driver of the KSRTC bus was convicted against which, a criminal appeal was preferred before the Sessions Court, which was also confirmed. This is also one of added circumstances to state that the driver of KSRTC was rash and negligent in driving the bus. Therefore, the additional evidence is taken into consideration to corroborate above

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observation. But independent of the additional evidence produced in I.A.No.1/2019, this Court is of the opinion that the appellants are able to prove the factum of accident and death of deceased in the said accident.

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14. Therefore, the impugned judgment and award

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passed by the Tribunal is liable to be set-aside, as the observations made therein are more on surmises and conjunctures, without appreciating the evidence on record properly. Therefore, the appeal is liable to be allowed.

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The Tribunal however has determined the

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compensation under various heads are as follows:

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1	Towards Loss of Love and Affection	: Rs.	15,000/-
2	Towards loss to the Estate	: Rs.	5,000/-
3	Towards Loss of dependency	: Rs.	4,32,000/-
	TOTAL	: Rs.	4,52,000/-

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But dismissed the claim petition as discussed above.

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Now by virtue of setting aside the judgment of the Tribunal as discussed above, the appellants are entitled for compensation as per law.

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As per Exhibit-P3, post-moterm report shows the age of the deceased as 31 years. It is submitted that the deceased was assisting his father in oil business. The accident has happened in the year 2008. Therefore, as per the Notional Income Chart prepared by the Karnataka State Legal Service Authority, the notional income of Rs.4,500/- is to be taken into consideration. Further, as per principle of law laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 , 40% of his monthly income is added towards ‘Loss Of Future Prospects In Life’, i.e., Rs.1,800/- (Rs.4,500/- x 40%). Therefore, the monthly income of the deceased is taken at Rs.6,300/- (Rs.4,500/- + Rs.1,800/-). The claimants are the wife, daughter and mother of the deceased. Therefore, as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another (‘Sarla Verma’ case for brevity) reported in AIR 2009 SC 3104, 1/3^rd of the income is deducted towards personal expenses. The appropriate multiplier applicable as per the judgment of

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the Hon’ble Supreme Court, in Sarla Verma’s case is ‘16’, since the appellant was aged 31 years at the time of accident. Therefore, the compensation under the head ‘Loss Of Dependency’ is recalculated and quantified as follows:

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Rs.4,500 + Rs.1,800 (40%) x 2/3 x 16 x 12 = Rs.8,06,400/-

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Further, the appellants - claimants are the wife, daughter and mother of the deceased, as per the principles of law laid down by the Hon’ble Apex Court in Pranay Sethi ’s case, a sum of Rs.40,000/- each, under the head ‘Towards Filial Love / Loss of Consortium’.

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Further, a compensation of Rs.15,000/- is awarded towards ‘ Funeral, Obsequies Ceremony’ .

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An amount of Rs.15,000/- is awarded towards ‘ Loss Of Estate’.

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Further, Rs.10,000/- is awarded under the head ‘Transportation Of Dead Body And Conveyance’ .

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21. Therefore, the appellants are entitled to the

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enhanced compensation as follows:

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1 Loss of dependency [Rs.4,500 + Rs.1,800 (40%) x 2/3 x 16 x 12]	:	Rs.	8,06,400 /-
2 Loss of consortium (Rs.40,000 x 3)	:	Rs.	1,20,000/-
3 Transportation of dead body	:	Rs.	10,000/-
4 Loss of Estate	:	Rs.	15,000/-
5 Towards Transportation of dead body	:	Rs.	15,000/-
Total	:	Rs.	9,66,400/-

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The appellants-claimants are entitled for a total compensation of Rs.9,66,400/- , along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, I pass the following

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ORDER

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i. Appeal is allowed in part.

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ii. The judgment and award dated 02.01.2012, passed in MVC No.318/2008, on the file of I^st Additional District And Sessions Judge and MACT, at Mysuru is set-aside.

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iii. The appellants-claimants are entitled to total compensation of Rs.9,66,400/- , along with interest

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at the rate of 6% per annum from the date of petition till the date of realization.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. Draw award accordingly.

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vi. I.A. No.1/2019 is disposed off accordingly.

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Sd/-

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JUDGE

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Smt Sharavana Prabha v. the Manager

Case brief

What is this about?

What did the court decide?

Smt Sharavana Prabha v. the Manager

Case brief

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What did the court decide?

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