Partly allowed

The Managing Director v. Smt B R Sowmya

Karnataka HC7 Jun 2022MFA/8773/2018

Case brief

AI extract

What is this about?

Appeal against MVC compensation award. Appellant bus corporation contested negligence and quantum. Court upheld negligence finding against correction needed only for interest rate alignment with Division Bench precedent, partially allowing appeal and reducing interest.

What did the court decide?

Appeal partly allowed. Interest rate reduced from 9% to 6% p.a. Corporation to deposit compensation within six weeks.

The Managing Director Vs Smt B R Sowmya — 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 7^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.8773 OF 2018 (MV)

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BETWEEN:

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The Managing Director, Bangalore Metropolitan Transport Corporation, Central Office, K.H.Road, Shanthinagar, Bangalore – 560 027. … Appellant

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(By Sri.D.Vijayakumar., Advocate)

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AND:

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Smt.B.R.Sowmya, W/o late Boregowda, Aged about 36 years,

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Sachin.K.B, S/o Late Boregowda, Aged about 17 years,

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Sonika.K.B, D/o Late Boregowda, Aged about 14 years,

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Respondents No.2 & 3 are minors, Represented by their natural mother Smt.B.R.Sowmya. All are residing at karadakere village,

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C.A.Kere Hobli, Maddur Taluk, Mandya District – 571 428.

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Sri.C.Ramaiah, Father name not known, Aged about 52 years, R/at No.381, 5^th Cross, G.K.W.Layout, Laggere, Bangalore – 560 058. (owner of the TATA Indica Car Bearing No.KA-02-AD-1788)

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The Manager, National Insurance Co. Ltd., No.1576, V.V.Road, Mandya – 571 401. (Insurer of the TATA Indica Car Bearing No.KA-02-AD-1788) ... Respondents

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(By Sri.Srinivasa.D.C., Advocate for R1 to R3; Notice to R4 served but unrepresented; Sri.O.Mahesh, Advocate for R5)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 02.06.2018 passed in MVC No.698/2014 on the file of the Senior Civil Judge & MACT, Maddur awarding compensation of Rs.11,51,548/with interest at 9%p.a., thereon from the date of petition till realization.

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This MFA, coming on for admission, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the Bangalore

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Metropolitan Transport Corporation (hereinafter referred to as ‘the Corporation) being aggrieved by the judgment dated 02.06.2018 passed by the Motor Accident Claims Tribunal, Maddur in MVC

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No.698/2014.

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Facts giving rise to the filing of the appeal briefly stated are that on 19.12.2013 at about 5.30 a.m. the deceased Boregowda was proceeding to work in a Tata Indica Cab bearing registration No.KA02/AD-1788. When he reached Hosur road near Brigade road, sole circle, at that time, a BMTC bus bearing registration No.KA-01/FA-529 which was being driven in a rash and negligent manner, dashed against the vehicle in which deceased was traveling. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on 22.12.2013.

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The claimants filed a petition under Section

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166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent No.2 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 and negligent driving of the vehicle by the deceased himself. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent Nos.1 and 3 did not appear before the Tribunal inspite of service of notice and hence were placed ex-parte.

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On the basis of the pleadings of the parties,

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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 rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.11,51,548/- along with interest at the rate of 9% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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6. The learned counsel for the Corporation has raised the following contentions:

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Firstly, the accident has occurred due to the rash

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and negligent driving of the driver of the car bearing registration No.KA-02/AD-1788. The Corporation has examined the conductor of the bus as RW-1. In his evidence, he has categorically stated that the accident has occurred in the middle of the circle. Even though there is no green signal for the car and green signal for the bus, the driver of the car came from the cross road and dashed against the bus. Due to the impact the inmates of the car have suffered injuries. The accident occurred due to the negligence of the driver of the car. Even RW-1 has been cross-examined. Nothing worthwhile has been elicited. Only suggestion has been made.

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Secondly, it is very clear from IMV report – Ex.P6 that left front portion of the car has been

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damaged. The driver of the car was proceeding on the road where there was no green signal and dashed against the bus. Only because the police have registered the FIR against the driver of the bus and filed the charge sheet, the Tribunal has held that the driver of the bus is negligent in causing the accident.

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Thirdly, it is very clear from the sketch and spot mahazar that the driver of the car was proceeding from the cross road where there was no green signal to the main road and dashed against the bus by violating the traffic rules. But the Tribunal has failed to consider this aspect of the matter and erred in holding that the driver of the bus alone is negligent in causing the accident.

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Fourthly, at the time of the accident the deceased was aged about 48 years. In view of the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY

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SETHI AND OTHERS reported in AIR 2017 SC 5157, the claimants are entitled to addition of 25%, but the Tribunal has erred in considering addition of 30% towards future prospects.

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Fifthly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS ( MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. is on the higher side. Hence, he sought for allowing of the appeal.

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On the other hand, the learned counsel appearing for the insurer of the car has raised the following contentions:

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Firstly, the accident occurred at 5.30 a.m. on 19.12.2013. At that time, there was no traffic signal used. To prove that there was traffic signal the

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Corporation has not produced any document nor examined any traffic police.

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Secondly, the driver of the bus was the first witness to speak about the accident, but he has not been examined. There is no reason forthcoming for not examining the driver of the bus. Immediately after the accident the driver of the car himself has given a complaint. On the basis of the complaint the police have filed the charge sheet against the driver of the bus, he has not challenged the same before any court of law. The driver of the car has been examined as PW-2. He has categorically stated that there was no traffic signal at the time of the accident in the said place.

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Thirdly, it is very clear from the sketch that the car was almost crossed 70% of the circle and the driver of the bus was coming at a high speed and in a rash and negligent manner dashed against the car.

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The Tribunal, after considering the evidence of the parties and the documents produced, has rightly held that the driver of the bus was negligent in causing the accident. Hence, he sought for dismissal of the appeal.

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The learned counsel appearing for the claimants has raised the following contentions:

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Firstly, the accident has occurred due to rash and negligent driving of the driver of the bus.

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Secondly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the judgment and award and the original records.

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The case of the claimants is that on 19.12.2013 at about 5.30 a.m. the deceased Boregowda was proceeding to work in a Tata Indica

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Cab bearing registration No.KA-02/AD-1788. The said car was driven by PW2. When he reached Hosur road near Brigade road, sole circle, at that time, a BMTC bus bearing registration No.KA-01/FA-529 which was being driven in a rash and negligent manner, dashed against the vehicle in which the deceased was proceeding. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on 22.12.2013. The first claimant has been examined as PW-1. In her evidence she has reiterated the statement made in the claim petition and she has marked Exs. P1 to P11. PW-1 is not an eyewitness to the accident. The driver of the car has been examined as PW-2. He was driving the car at the time of the accident. According to him, on 19.12.2013 at 5.30 a.m., when he was driving the car near Sole circle, at that time, a BMTC bus bearing registration No.KA-01/FA-529 being driven by its

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driver at a high speed, in a rash and negligent manner dashed to the car. Due to the impact, Boregowda suffered grievous injuries and shifted to the hospital. Immediately after the accident PW-2 has lodged a complaint against the driver of the offending vehicle. He has been cross-examined by the respondent. He has denied the suggestion made by the respondents that at the time of the accident there was traffic signal and he has crossed the road when there was no green signal. That suggestion has been denied by PW-2. Except that, nothing has been elicited from the crossexamination of PW-2. Pursuant to the complaint lodged by PW-2 who is an eyewitness to the accident, police have registered FIR against the driver of the bus. After thorough investigation filed charge sheet against the driver of the bus. To disprove the case of the claimants the respondent has examined the Conductor of the bus as RW-1. He has deposed that

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the driver of the bus was proceeding in a slow manner by following the rules and regulations. At that time, the driver of the car was coming in a rash and negligent manner and dashed against the bus. In the cross-examination he has deposed that he is not aware about the charge sheet filed against the driver of the bus and he was also not aware of the complaint lodged against the driver of the bus. Immediately after the accident the driver of the car – PW2 has lodged a complaint against the driver of the bus as per Ex.P2. Police have registered FIR as per Ex.P1 against the driver of the bus and drawn spot mahazar as per Ex.P3 and spot sketch as per Ex.P4. From Exs. P3 and P4 it is clear that the accident has occurred in a circle near Sule Circle. The bus was proceeding from Richmond road and the car was coming from Brigade road. It is also clear that the car was almost crossed 70% of the road. The respondents, to prove

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that there was traffic light at that time, have not examined any police officer and the driver of the bus is the best witness to speak about the accident. There is no proper reason forthcoming as to why the driver of the bus has not been examined and it is also very clear that the complaint is lodged against the driver of the bus, he has not made any attempt to lodge the complaint against the driver of the car. Even the police after thorough investigation have filed the charge sheet against the driver of the bus, but he has not challenged the same before any court of law.

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Considering the evidence of PW1 and PW2

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and considering the FIR, complaint, spot mahazar, rough sketch, IMV report and charge sheet, I am of the opinion that the Tribunal is justified in holding that the driver of the bus was negligent in causing the accident.

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Re.quantum:

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The Tribunal after considering the age and

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avocation of the deceased has rightly assessed the notional income of the deceased as Rs.8,000/- per month. To the aforesaid income, 25% has to be added

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on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly income comes to Rs.10,000/-. Since there are 3 dependents, the Tribunal has rightly deducted 1/3^rd of the income of the deceased towards personal expenses and remaining amount has to be taken as his contribution to the family, i.e., Rs.6,667/-. The deceased was aged about 48 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimants are entitled to compensation of Rs.10,40,052/- (Rs.6,6671213) on account of ‘loss of dependency’.

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The compensation awarded by the Tribunal on

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the other heads is just and reasonable.

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In the result, the appeal is allowed in part.

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The judgment of the Claims Tribunal is modified.

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In view of the law laid down by a Division Bench of this Court in the case of JOYEETA BOSE (supra), the rate of interest awarded by the Tribunal is reduced from 9% p.a. to 6% p.a.

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The Corporation is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.

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The amount in deposit is ordered to be

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transferred to the Tribunal forthwith.

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Sd/JUDGE

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Cm/-

The Managing Director v. Smt B R Sowmya

Case brief

What is this about?

What did the court decide?

The Managing Director v. Smt B R Sowmya

Case brief

What is this about?

What did the court decide?

What the court decided

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