Partly allowed

The Managing Director v. Smt Mary Franchana

Karnataka HC4 Dec 2024MFA/1520/2017

Case brief

AI extract

What is this about?

In two miscellaneous first appeals filed by the Motor Vehicles Corporation and the heirs of a deceased student, the High Court allowed the appeals in part. The court re-assessed the deceased's notional income and enhanced compensation from Rs. 15,07,000 to Rs. 35,53,400 with interest at 6% p.a., modifying the Tribunal's award.

What did the court decide?

Compensation enhanced to Rs. 35,53,400 with interest at 6% p.a. from date of petition; allotment of shares between parents and claimants clarified.

The Managing Director Vs Smt Mary Franchana — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:53361-DB MFA No.1520/2017 C/W MFA No.2090/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1520/2017 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.2090/2017 (MV-D)

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IN M.F.A. No.1520/2017:

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BETWEEN:

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THE MANAGING DIRECTOR B.M.T.C. K.H. ROAD BENGALURU 560027.

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Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH (BY SRI. D. VIJAYA KUMAR, ADV.,) COURT OF KARNATAKA

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AND:

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…APPELLANT

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SMT. MARY FRANCHANA W/O CHRISTY BABU @ CHRISTI BABU AGED ABOUT 48 YEARS.

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MR. CHRISTY BABU @ CHRISTI BABU A S/O ANTHONY SHAM .M AGED ABOUT 54 YEARS.

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DENIS C.B. S/O MR. CHRISTY BABU @ CHRISTI BABU A AGED ABOUT 19 YEARS.

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2 - NC: 2024:KHC:53361-DB MFA No.1520/2017 C/W MFA No.2090/2017

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ALL ARE R/AT D.NO.7/81 D.R.D.O. QUARTERS C.V. RAMAN NAGAR BENGALURU 560093.

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…RESPONDENTS

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(BY SRI. S.S. HAVERI, ADV., FOR R1-R3)

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THIS MFA IS FILED U/S 173(1)OF MV ACT, PRAYING TO CALL FOR RECORDS IN MVC NO.2206/2016 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL BANGALORE (SCCH-18). SET ASIDE THE JUDGMENT AND AWARD DT:28.11.2016 PASSED IN MFC NO.2206/2016 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL BANGALORE (SCCH-18), IN THE INTEREST OF JUSTICE AND EQUITY.

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IN M.F.A. NO.2090/2017:

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BETWEEN:

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MRS. MARY FRANCHANA W/O MR. CHRISTY BABU @ CHRISTI BABU AGED ABOUT 48 YEARS.

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MR. CHRISTY BABU @ CHRISTI BABU A S/O ANTHONY SHAM .M AGED ABOUT 54 YEARS.

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DENIS C.B. S/O MR. CHRISTY BABU @ CHRISH BABU A AGED ABOUT 19 YEARS.

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ALL ARE R/OF. D.NO.7/81 D.R.D.O QUARTERS C V RAMAN NAGAR BENGALURU-560093.

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...APPELLANTS

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(BY SRI. S.S. HAVERI, ADV.,)

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3 - NC: 2024:KHC:53361-DB MFA No.1520/2017 C/W MFA No.2090/2017

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AND:

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THE MANAGING DIRECTOR B.M.T.C. K H ROAD BENGALURU-560027 (THE OWNER BMTC BUS BEARING REG NO.KA-01-F-4612).

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THE MANAGING DIRECTOR INTERNAL INSURANCE BMTC, K H ROAD BENGALURU-560027.

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...RESPONDENTS

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(BY SRI. D. VIJAYA KUMAR, ADV.,)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS, IF NECESSARY AND TO ENHANCE THE COMPENSATION AWARDED BY THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-18), AWARDED IN MVC NO.2206/2016 DATED 28.11.2016, AND GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUIYT.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Challenging the judgment and award in MVC

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No.2206/2016 passed by the III Additional Senior Civil Judge and MACT, Bengaluru (SCCH-18), BMTC has filed MFA No.1520/2017 and claimants have filed MFA No.2090/2017.

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In MFA No.1520/2017, the appellant was

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respondent No.1 and respondent Nos.1 to 3 were the petitioner Nos.1 to 3, respondent No.2 in the Tribunal was not made a party in this appeal. In MFA No.2090/2017, the appellants were the claimant Nos.1 to 3 and respondents were the respondents Nos.1 to 3 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The legal heirs of deceased Kumari. Mary Sindhu

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filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.50,00,000/- for her death in a road traffic accident that occurred on 12.11.2015. It was contended that the deceased was a pillion rider on Scooty bearing Reg.No. KA-03-HZ-7110 and they were proceeding on Hosur main road, when they reached near PES College Konappana Agrahara, Bengaluru, the rider of the scooty was riding the same in moderate speed on the extreme left side of the road by observing traffic rules, at that time, the driver of Bus bearing Reg.No. KA-01-F-4612 drove on the same road from back side in very high speed in a rash and negligent

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manner and dashed to the motorcycle. Due to the impact of accident, the rider and pillion rider fell down along with the motorcycle and they were dragged for some distance. Mary Sindhu sustained multiple injuries. She was shifted to Sparsh hospital and provided treatment between 12.11.2015 to 15.11.2015. She succumbed to the injuries in the hospital. It was further contended that the deceased was studying B.E. Civil Engineering course at Gopalan College of Engineering and Management, Hoody village, Bengaluru. It was also contended that the deceased was very brilliant student and on completion of her course she would have secured job in Multinational Company and would have earned at least Rs.50,000/- to 60,000/- per month. It was pleaded that the accident was due to rash and negligent driving of the bus by its driver and due to untimely death, the claimants have suffered emotional and financial dependency. Hence, filed claim petition.

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The respondent No.1 filed written statement denying the factum of accident, age and probable income of the deceased. It was contended that the accident was caused due to the negligence of the rider of the motorcycle and the driver of the bus was cautious while driving the same. However, the

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police in collusion with the claimants has filed charge sheet against the driver of the bus. It was further contended that the rider of the motorcycle did not have valid and effective driving license at the time of accident. Hence, they are not liable to pay any compensation. They sought for dismissal of the petition.

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The Tribunal recorded the evidence of the parties. Claimant No.1 got examined herself as PW-1 and another witness as PW-2 and got marked Exs.P1 to P35. The respondents examined driver of the bus as RW.1 and did not produce any documentary evidence. The Tribunal formulated the points for consideration and on appreciation of the oral and documentary evidence, partly allowed the claim petition holding that the driver of the bus was negligent and saddled liability on the BMTC. The Tribunal notionally assessed the income of the deceased at Rs.12,000/- per month, deducted 50% towards personal and living expenses of the deceased, applied 18 multiplier and awarded of Rs.12,96,000/- under the head of loss of dependency and in all the Tribunal has awarded compensation of Rs.15,07,000/- with interest @ 9% p.a. from

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7 - NC: 2024:KHC:53361-DB MFA No.1520/2017 C/W MFA No.2090/2017

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the date of petition till deposit. Being aggrieved, the BMTC and the claimants are in appeal.

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Sri. S.S. Haveri, learned counsel for the claimants submits that the Tribunal has committed grave error in assessing the income of the deceased at Rs.12,000/- per month. Deceased was meritorious student, she was at the fag end of her B.E. course and would have earned at least Rs.50,000/- to 60,000/- per month on completion of the course. It is submitted that the Tribunal has awarded meagre compensation on all other heads. It is further submitted that the Tribunal considering the charge sheet and evidence of eye witness has rightly come to conclusion that the driver of the BMTC was negligent and caused accident. Hence, he seeks to enhancement of the compensation and dismissal of the appeal of the BMTC.

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Per contra, Sri. D. Vijaykumar, learned counsel for the respondent-BMTC submits that the Tribunal has committed grave error in coming to conclusion that the driver of BMTC bus was negligent. PW.2, rider of the motorcycle, in his crossexamination has admitted that the mirror of the scooty touched

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the bus, which resulted in the accident. Hence, the rider of the motorcycle has also contributed to the accident in question. It is further submitted that MVI's report at Ex.P5 clearly shows that the left side body near the door of the bus is damaged which clearly establishes that the rider of the scooty lost the balance and dashed to the bus. It is also submitted that the police with an intention to help the claimants have filed false charge sheet against the driver of the BMTC bus. He submits that the rider of the motorcycle was equally negligent and caused the accident in question. It is contended that the Tribunal has awarded excess compensation to the claimants, hence the enhancement of compensation in the appeal filed by the claimants does not arise. It is further contended that the Tribunal has erred in awarding interest at 9% and the same shall be reduced to 6%. Hence, he seeks dismissal of the appeal of claimants and allow the appeal of BMTC.

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Considering the rival submissions of the parties and examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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Reg. Negligence:

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The case of the claimant was that on 12.11.2015 deceased Mary Sindhu was proceeding on Scooty bearing registration No.KA-03 HZ-7110 as a pillion rider and her friend Sri.Yogesh Kumar, was riding the motor cycle slowly by following the traffic rules. At that time, the driver of BMTC bus bearing registration No.KA-01 F-4612 drove the same in rash and negligent manner, dashed the Scooty from the hind side, resultantly she fell down, sustained fatal injuries and succumbed to the injuries in the hospital on 15.11.2015. PW1, mother of the deceased deposed with regard to negligence, age, educational qualification and dependency before the Tribunal. Admittedly, PW-1 is not the eye witness to the incident. Her evidence is based on the documentary evidence produced before the Tribunal. In her evidence, she has produced the investigation papers such as FIR, charge sheet, sketch, spot mahazar, vehicle seizure mahazar, MVI's report, PM report, inquest report to prove that the driver of the BMTC bus was negligent. The investigation material produced and marked before the Tribunal as Exs.P1 to P9, indicate that the jurisdictional police on registering FIR in Crime No.190/2015 of

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Electronic City Police Station, on investigation filed charge sheet against the driver of the BMTC bus for the offences punishable under Sections 279, 337 and 304A of India Penal Code, 1860. The sketch Ex.P4 indicates the spot of the accident, the direction in which the two wheeler was proceeding and also the direction of the offending bus which are marked as A, B and C. Schedule written below the sketch and the markings shown in the sketch clearly indicate that the Scooty bearing registration No.KA-03-HZ-7110 was proceeding towards Hosur on the left side of the road which is shown and marked as 'B'. Marking 'C' in the sketch shows that the offending BMTC Bus bearing registration No.KA-01 F-4612 came from the extreme right side of the road to the left side and dashed the moving Scooty from the left side. Comparison of the sketch at Ex.P4 with MVI's report at Ex.P5, makes it further clear that the body of bus was scratched on its left side near the door. In other words, the driver of the bus reached the accident spot in high speed and major portion of the bus was crossed the Scooty and left side body of the bus near the rear door hit the Scooty resulting in the accident.

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PW-2 who is the eye witness to the accident states in his evidence that he was riding the motor cycle and deceased was the pillion rider. He deposed that he was proceeding on the extreme left side of the road and driver of the offending bus came from back side in a very high speed, rash and negligent manner, dashed the Scooty which resulted in the accident. He further deposed that he lodged the complaint to the police with regard to the accident and the police have recorded his statement. He also deposed that the accident was caused due to the sole negligence of the driver of the bus. The said witness has been cross-examined by the BMTC at length. PW-2 has denied various suggestions put forth in the crossexamination. Nothing has been elicited during the crossexamination.

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The Respondent examined RW-1, driver of the BMTC bus. He has reiterated the averments made in the statement of objections in his affidavit evidence. The said witness has been cross-examined wherein he has admitted filing of charge sheet against him by the police. He further admits that he did not produce any document to show that he

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attempted to file police complaint. He deposes that he was not negligent and it was the rider of the motor cycle who was negligent. However, the evidence of RW-1 cannot be believed for the reason that he is the interested witnesses and the evidence of PW-2 corroborated by investigation material indicates that the driver of bus was negligent.

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The Tribunal, on appreciation of the evidence of RW-1 has recorded the reason that RW-1 would have lodged counter complaint if his version was true. On appreciation of the oral and documentary evidence on record, we are of the considered view that the Tribunal is fully justified in recording the finding that the driver of the BMTC bus was negligent and the Corporation is liable to pay the compensation. The said finding of the Tribunal is neither perverse nor contrary to the evidence on record calling for interference in the appeal filed by the Corporation.

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Reg. Quantum:

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The Tribunal assessed the income of the deceased notionally at Rs.12,000/- p.m., deducted 50% towards her personal and living expenses as she was spinster, applied 18

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multiplier considering her age as 20 years at the time of accident and awarded Rs.12,96,000/- under the head of loss of dependency. PW-1, mother of the deceased deposed that the deceased was bright student of 7^th semester B.E. course in Civil Engineering at Gopalan College of Engineering and Management, Hoody village, Bengaluru. To substantiate the claim for income, the claimant has produced Exs.P18 to P31, certificates, ID card, marks cards, fee paid receipts of the deceased. Admittedly, deceased was not actually working and earning any income at the time of accident. However, considering the potential earning capacity of the deceased, this Court is required to assess the notional income of the deceased for the purpose of awarding just compensation. It would be useful to refer the judgment of the Hon'ble Supreme Court in the case of Kandasami and others Vs. Linda Briyal and others¹ . The Hon'ble Supreme Court has notionally considered the income of a B.Tech graduate at Rs.25,000/- p.m. The accident in the said case was of the year 2008. In the instant case, the accident is of the year 2015 which is 7 years subsequent to the judgment of the Hon'ble Supreme Court in

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1 Cviil Appeal No.3525/2023 dt. 24.4.23

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Kandasami's case referred to supra . The deceased was about to complete her engineering course. Considering her academic excellence, we are of the considered view that the interest of justice would be met if we re-assess the income of the deceased at Rs.22,000/- p.m. As per the law laid down by the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Others² , claimants are entitled to addition of 40% of the assessed income towards the future prospects of the deceased. The deceased was aged about 20 years at the time of the accident. Hence, appropriate multiplier would be 18. Having re-assessed the notional income and future prospects, the loss of dependency is calculated as under:

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22,000 + 8,800 (40%) = 30,800 - 50% (personal and living expenses of the deceased) = 15,400 x 12 x 18 = 33,26,400/-

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The Tribunal has awarded Rs.1,06,000/- towards medical expenses. The medical records more particularly Ex.P34 indicate that the claimants have spent Rs.1,05,693/which is rounded off by the Tribunal to Rs.1,06,000/-. Admittedly, the deceased met with the accident on 12.11.2015,

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2 2017 (16) SCC 680

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sustained grievous injuries, was admitted to the Sparsh Hospital, Bengaluru and succumbed to the injuries on 15.11.2015. Hence, the award of compensation by the Tribunal towards medical expenses is unaltered.

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Claimants are the parents and brother. The parents are entitled to consortium of Rs.40,000/- each with 10% escalation. However, the brother is not entitled for the same. Claimants are also entitled to Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses and transportation of dead body with escalation of 10% as held by the Hon'ble Supreme Court in Pranay Sethis's case referred to

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supra. Hence, the compensation is re-assessed as under:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	33,26,400/-
2.	Consortium
	(40,000 x 2 with 10% escalation)	88,000/-
3.	Loss of estate with 10% escalation	16,500/-
4.	Funeral expenses and transportation of dead bodywith	16,500/-

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16 -

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NC: 2024:KHC:53361-DB MFA No.1520/2017 C/W MFA No.2090/2017

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10% escalation
5. Medical expenses 1,06,000/-
TOTAL 35,53,400/-
Compensation awarded by the
Tribunal
15,07,000/-
Enhanced compensation 20,46,400/-

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The compensation shall carry interest @ 6% p.a. from the

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date of petition till its realization.

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For the aforementioned reasons, we pass the following:

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ORDER

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Appeals are allowed in part.

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The impugned award is modified as follows:

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i. The claimants are entitled to compensation of

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Rs.35,53,400/- with interest at 6% p.a. from the date of petition till its realization.

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ii. Respondent shall deposit the said amount before the Tribunal within eight weeks from the date of this order.

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iii. Out of the compensation, claimant Nos.1 and 2 are entitled to 50% each.

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iv. On deposit of the amount, the Tribunal shall release 50% of the shares of claimant Nos.1 and 2 to them digitally and balance 50% shall be invested in fixed deposit in any nationalized or scheduled bank of their choice for a period of three years.

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v. Registry shall transmit the amount in deposit, if any, and the Trial Court records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK/RV

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List No.: 1 Sl No.: 32

The Managing Director v. Smt Mary Franchana

Case brief

What is this about?

What did the court decide?

The Managing Director v. Smt Mary Franchana

Case brief

What is this about?

What did the court decide?

What the court decided

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