The Managing Director Ksrtc Vs Smt Bhagyamma

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 24.02.2021 PASSED IN MVC NO. 3980/2018 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES AND MEMBER, PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (S.C.C.H.1), AWARDING COMPENSATION OF RS.20,80,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO. 2505/2022

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BETWEEN:

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SMT BHAGYAMMA W/O LATE SHANKARAPPA AGED ABOUT 31 YEARS

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NAVEEN

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S/O LATE SHANKARAPPA AGED ABOUT 11 YEARS SINCE MINOR REPT. BY HIS MOTHER AND NATURAL GUARDIAN SMT.BHAGYAMMA

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SMT LAKSHMIDEVAMMA W/O LATE BAYANNA AGED ABOUT 61 YEARS

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HARISH

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S/O BAYANNA AGED ABOUT 28 YEARS

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ALL ARE R/AT KAMALAPURA VILLAGE, THONDEBAVI HOBLI, GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT-561 208 … APPELLANTS (BY SRI.NAGARAJA REDDY D, ADVOCATE

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AND:

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THE MANAGING DIRECTOR KSRTC SARIGE BHAVANA K H ROAD SHANTHINAGAR BENGALURU – 560 027 … RESPONDENT

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(BY SRI. G LAKSHMEESH RAO, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 24.02.2021 PASSED IN MVC NO.3980/2018 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES AND MEMBER, PRL. MACT, BENGALURU SCCH-1, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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These two appeals arise out of the judgment and award

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in MVC No.3980/2018 passed by the Chief Judge, Court of Small Causes and Member, Prl.MACT, Bengaluru.

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Appellant in MFA No.1242/2022 was the sole respondent and respondent Nos.1 to 4 in the said appeal were claimant Nos.1 to 4 in MVC No.3980/2018 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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Claimant Nos.1 and 2 are the widow and minor son, claimant No.3 is the mother, claimant No.4 is the brother of deceased Shankarappa. On 28.05.2018 at 8.00 p.m. when Shankarappa was crossing road near Bengaluru-Gowribidanur road, SH-9 he was hit by a vehicle and died. Regarding the accident one Munivenkatappa filed complaint as per Ex.P2 before Manchenahalli Police alleging that the driver of KSRTC bus bearing registration No.KA-07 F 1084 drove the said bus in rash and negligent manner and hit the victim. Based on the said complaint, FIR was registered by Manchenahalli Police in Crime No.148/2018 of their Police Station. After investigation charge sheet as per Ex.P7 was filed against Manjunath/RW1 driver of the bus for the offences punishable under Section 279, 304(A) read with Section 187 of IMV Act, 1988. The said bus was owned by the respondent/KSRTC.

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Claimants filed MVC No.3980/2018 against the respondent claiming compensation of Rs.35,00,000/- alleging that the accident and death of Shankarappa occurred due to the actionable negligence on the part of the driver of the said bus and respondent is liable to pay the same. They contended

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that the deceased was doing business and earning Rs.20,000/per month and they were all depending on his income.

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Respondent contested the petition denying the involvement of bus No.KA-07-F-1084 in the accident and its liability to pay the compensation. Respondent contended that on 28.05.2018 when RW.1 was driving the said bus from Gowribidanur towards Ujjini with all precautions, at about 8.15 p.m., 4 culprits came on two bikes waylaid him threatening that he has caused the accident. Thereafter he was falsely implicated in the case. Respondent further contended that his signatures were taken by the Police in the Police Station under coercion. Regarding the same he filed complaint before CPI, Superintendent of Police etc. Further the age, occupation and income of the deceased were also disputed.

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Before the Tribunal, claimant No.1 was examined as PW.1 and eye-witness was examined as PW.2. On behalf of the claimants Exs.P.1 to P12 were marked. Respondent got examined RWs.1 to 3 and Exs.R1 to 11 were marked on it’s behalf.

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The Tribunal by the impugned award held that the accident and consequential death of Shankarappa occurred due

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to the actionable negligence on the part of the driver of the bus bearing No.KA-07-F-1084. Tribunal considered the age of the victim as 39 years, notionally assessed his income at Rs.10,000/- per month, added 40% of the same by way of future prospects, deducted one-fourth from the income of the deceased towards his personal expenses, applied 15 multiplier and assessed the compensation on the head of loss of dependency at Rs.18,90,000/-.

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Tribunal in all awarded compensation of

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Rs.20,80,000/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	18,90,000/-
2.	Loss of Estate	15,000/-
3.	Loss of consortium	40,000/-
4.	Funeral and ritual expenses	15,000/-
5.	Loss of parental consortium and loss of filial consortium to petitioner Nos.2 and 3	80,000/-
6.	Loss of love and affection to petitioner No.4	40,000/-
	Total	20,80,000/-

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Tribunal awarded interest at 6% p.a. on the compensation.

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KSRTC has challenged the said award in MFA No.1242/2022 questioning the findings on involvement of the vehicle as well as on quantum of compensation. Claimants have preferred MFA No.2505/2022 questioning the adequacy of compensation awarded to them.

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Submissions of Sri G.Lakshmeesh Rao, learned counsel for KSRTC:

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PW.2 being the eye witness is highly doubtful. He is planted only for the purpose of this case whereas RWs.1 and 3/the driver and passenger of the bus and the documents produced by the respondent show that the accident was a hit and run case, to make wrongful gain, PWs.2 and others have wrongfully implicated RW.1 in the case and there was delay in filing the complaint. Tribunal has failed to appreciate the evidence led by KSRTC regarding involvement of RW.1 in the accident in a proper perspective. Claimant No.4 being the major brother of the deceased cannot be treated as dependant of the deceased. Notional income considered by the Tribunal is

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on the higher side and deduction for personal expenses is also not in accordance with the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation¹ .

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1 AIR 2009 SC 3104

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Compensation on the other heads is also on the higher side. Hence, appeal of KSRTC be allowed and claimants’ appeal be dismissed.

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Submissions of Sri D.Nagaraja Reddy, learned counsel for the claimants:

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Evidence on record shows that on investigation charge sheet was filed against RW.1. RW.3 being the inmate of the bus was rightly disbelieved by the Tribunal. Respondent claimed that the complaint was filed by RW.1 before the Superintendent of Police and Circle Inspector of Police, there is nothing to show that the same was pursued. Exs.R.7 and 8 were totally inadmissible in evidence. No action was taken by the respondent or the driver for quashing the charge sheet. Therefore, Tribunal was justified in accepting the evidence of the claimant and holding that the accident occurred due to the actionable negligence on the part of the driver/RW1 in driving the bus bearing No.KA-07-F-1084. The notional income assessed by the Tribunal is on the lower side. The compensation awarded on all other heads is on the lower side. Claimant No.4 being younger brother of deceased was depending on him. Therefore, dismissing the appeal of KSRTC, claimants’ appeal be allowed.

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On considering the submissions of both side and on examining the records, the questions that arise for determination of the Court are:

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i) Whether the finding of the Tribunal that the accident and consequential death of Shankarappa took place due to rash and negligent driving of the bus bearing No.KA-07-F-1084 by RW.1 is sustainable in law ?

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ii) Whether the compensation awarded is just one ?

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ANALYSIS

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Reg. Point No.1

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Respondent also did not dispute that on 28.05.2018 at about 8.00 p.m. Shankarappa met with an accidental death within the limits of SH9 of Manchenahalli Police Station. The relationship of the claimants with the deceased was not disputed. Claimants contended that at the time of accident RW.1 was driving the bus in question and due to his actionable negligence, he caused the accident and consequential death of Shankarappa. Whereas respondent denied the involvement of the bus and RW.1 in question and contended that it was a hit and run case and to make wrongful gain RW.1 was roped

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into the case, in collusion with Police and other authorities, false charge sheet was filed against him.

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It is settled law that the proceedings before the MACT under 166 of the Motor Vehicles Act, 1988 are summary in nature. Claimant is required to prove the fact of accident on the principle of preponderance of probability and strict degree of proof i.e., beyond reasonable doubt in terms of the criminal trial is not required. To prove their contention, the claimants relied on the evidence of PW.2/the alleged eye witness to the incident and Exs.P1 to P7 and P9. It is needless to say that though Ex.P12 the alleged confession statement of RW.1, Exs.R7 and 8/the statements of RW.1 and the alleged conductor of the bus were marked in the evidence, admitting those documents in evidence itself was contrary to Section 25

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and 32 of the Indian Evidence Act, 1872. However, on investigation charge sheet Ex.P7 was filed against RW.1 for driving the bus so as to endanger human life and escaping from the scene of the accident without attending to the injured. Ex.P7/the charge sheet has presumptive value under Section 114(e) of the Evidence Act. By the said evidence, the claimants discharged the burden of proving their case regarding

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the occurrence of the accident, involvement of the bus and RW.1 in the case. Then the burden was on the respondent to rebut the said evidence. It was for the respondent to prove that PW.2 and others chased the said bus and falsely implicated RW.1 in the case. Such contention of RW.1 was denied in his cross examination as well as cross examination of claimants’ witness.

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Though RW.3 claimed to be the inmate of the bus, he was not cited in the charge sheet as the eye witness or passenger and he did not go before the Investigating Officer to give statement. ExsR.3 to 5 are allegedly the complaints filed by RW.1 before the PSI, CPI and SP. In those complaints the name of RW.3 was not mentioned as the passenger. Tribunal considering the said facts rightly disbelieved the evidence of RW.3 being the passenger or the eye witness. Further as rightly pointed out by the Tribunal, respondent and RW.1 did not take the alleged complaints/Ex.R3 to 5 to its logical conclusion. Even before this Court counsel for KSRTC was unable to submit what was the outcome of those complaints.

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RW.2/alleged Vigilance Officer admits that he is not the eyewitness to the incident and he is giving evidence only based

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on documents. He further admits that they have not taken any action against the Police for the alleged false implication and filing false charge sheet. He admits that they have not taken any action on their complaint. Therefore, his evidence was also of no yield to advance the contention of the respondent that RW.1 was chased by PW.2 and others and forcibly implicated in the case.

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The other contention of the respondent was that there were no blood stains on the tyres of the bus. As per the evidence of RW.1 himself, bus was chased and waylaid at a distance of 8 kms from the spot of the accident. Therefore, Tribunal rightly opined that after the bus running 8 kms on the road, the respondent cannot expect blood stains on the tyres.

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The above said facts and circumstances go to show that the respondent failed to rebut the evidence of the claimant and probabilise its defence. Tribunal on judicious appreciation of the evidence held that the accident and consequential death of Shankarappa occurred due to the rash and negligent driving of the bus by RW.1. The said finding does not require any interference by this Court.

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Reg: Quantum:

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As per Ex.P5, age of deceased was 39 years. Though it was contended that he was doing business and earning Rs.20,000/- per month, no proof of his business or such income was produced. Therefore, the Tribunal was justified in assessing the income notionally. However, considering the age, occupation of the deceased and other relevant factors during the year 2018, notional income considered by the Tribunal is on the lower side and reasonably the same can be considered at Rs.12,500/- per month.

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As per the ratio laid down by the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi² considering the age and occupation of the deceased, 40% has to be superadded to his income by way of future prospects. Claimant No.4 major brother cannot be considered as dependant of the deceased. Considering claimant Nos.1 to 3 as his dependants, 1/3^rd has to be deducted out of the income of the deceased for his personal expenses. The applicable multiplier is 15. Therefore, compensation payable on the head of loss of dependency comes to (Rs.12,500/- x 40%)=

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2 (2017) 16 SCC 680

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17,500/- X 2/3^rd = Rs.11,666.67/- rounded off to Rs.11,667/-. Rs.11,667 x 12 x 15 = Rs.21,00,060/-.

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As per the ratio laid down by the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd., v. Nanu Ram³ case, claimant Nos.1 to 3 are entitled to compensation on the head of loss of consortium at Rs.40,000/- with escalation at 10% which comes to Rs.44,000 x 3= Rs.1,32,000/-.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra , the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for funeral expenses and transportation with escalation at 10%. Therefore the just compensation payable is as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	21,00,060/-
2.	Loss of consortium	1,32,000/-
3.	Loss of estate	16,500/-
4.	Funeral expenses & transportation charges	16,500/-
	Total	22,65,060/-
	Less: awarded by the Tribunal	20,80,000/-
	Enhanced compensation	1,85,060/-

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3 (2018) 18 SCC 130

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Enhanced compensation shall carry interest at 6% per annum. For the aforesaid reasons, both appeals deserve to be allowed in part. Hence, the following:

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ORDER

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i) The appeals are partly allowed.

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ii) Claimants are entitled to enhanced compensation of Rs.1,85,060/- with interest thereon at 6% p.a. from the date of petition till its realization.

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iii) KSRTC shall deposit the enhanced compensation with accrued interest before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv) Out of enhanced compensation, the Tribunal shall digitally release Rs.85,060/- with accrued interest to claimant No.1 and invest balance amount in the name of claimant No.2 in fixed deposit in any nationalized/scheduled bank of the choice of claimant No.1 till claimant No.2 attains majority.

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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/(C.M. POONACHA) JUDGE

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AKC,KSR List No.: 1 Sl No.: 44

The Managing Director Ksrtc v. Smt Bhagyamma

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The Managing Director Ksrtc v. Smt Bhagyamma

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