The Managing Director Vs Sri. Shaik Ahmed Shariff @ S, Ahmed Shariff

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2023 PASSED IN MVC No.3102/2020 ON THE FILE OF THE C/c XXII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT COURT OF SMALL CAUSES, BENGALURU (SCCH-2), AWARDING COMPENSATION OF Rs.23,12,400/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT OF THE AWARD AMOUNT.

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IN MFA No. 3898/2023

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BETWEEN:

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SRI. SHAIK AHMED SHERIFF @ S. AHMED SHARIFF AGED ABOUT 56 YEARS S/O. SHAIK ISMAIL.

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SMT. PARVEEN UNNISA AGED ABOUT 49 YEARS W/O. SHAIK AHMED SHERIFF @ S. AHMED SHARIFF RESIDING AT No.38, 6^TH CROSS

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HC-KAR

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PADARAYANAPURA BENGALURU-560 026.

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...APPELLANTS

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(BY SRI NAGARAJA REDDY D, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR BENGALURU METROPOLITAN TRANSPORT CORPORATION (BMTC), SARIGE BHAVAN K.H. ROAD SHANTHINAGARA BENGALURU-560 027.

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...RESPONDENT

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(BY SRI D VIJAYAKUMAR, ADVOCATE- VK NOT FILED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2023 PASSED IN MVC No.3102/2020 ON THE FILE OF THE C/c XXII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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HC-KAR

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ORAL JUDGMENT

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MFA No.4327/2023 is filed by the Corporation challenging the liability and quantum of compensation and MFA No.3898/2023 is filed by claimants seeking enhancement of compensation awarded in the Judgment and Award dated 06.02.2023 passed in MVC No.3102/2020 by XXII Additional Small Causes judge and MACT, Bengaluru (SCCH-24)

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2. The facts leading to filing of claim petition are as under:

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a) That on 20.08.20 at about 01.40 p.m., the deceased was riding two wheeler bearing registration No.KA-01/HG-2452 slowly carefully and cautiously observing all traffic rules and regulation on Magadi road from Binny Mill junction and when he was near Angala Parameshwari Temple, Bangalore, at that time driver of BMTC bus bearing registration No.KA-01/FA-2242 came in high speed, rash and negligent manner and all of a sudden dashed to the bike of the deceased. Due to the said

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HC-KAR

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impact, the deceased fell down and sustained injuries. He was taken to the hospital and on the way he died. Claimants being legal heirs of the deceased have filed claim petition, contending that the accident took place due to rash and negligent driving of the driver of the BMTC bus.

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b) The respondent -corporation in the statement of objections denied the date and time of the alleged accident and contended that the driver of the BMTC bus was driving slowly and cautiously on the left side of the road and without observing the Oralu Kallu lying on the left side of the road and while so overtaking due to over speed lost control over the two wheeler and dashed against the Oralu Kallu and fell down on the road and came under the left side back wheels of the bus. The accident occurred due to the sole negligence on the part of the rider of the motorcylce.

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3. On the basis of the said pleadings, the Tribunal

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has framed following issues:

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HC-KAR

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“ 1. Whether the Petitioners prove that, they are the only legal representatives of deceased 'Md Zain Shariff @ Mohammed Zain Shariff S/o S.Ahmed Shariff and were dependent on him?

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2. Whether the Petitioners prove that, the deceased succumbed to the injuries sustained in a motor vehicle accident that occurred on 20.08.2020 at about 01.40 p.m., near Angalaparameshwari Temple, Magadi Road, Bengaluru City, due to the actionable negligence of the driver of BMTC bus bearing Reg. No.KA-01-FA-2242?

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3. Whether the Petitioners are entitled for compensation? If so, what is the quantum? From whom?

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4. What Order or Award?”

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a) Claimant No.1 has been examined as P.W.1 got

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marked documents as Ex.P1 to Ex.P22 and examined P.W.2 and got marked documents as Ex.P23 to Ex.P26.

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The respondent examined the driver of the BMTC bus as R.W.1, Police Constable of Magadi Road and Traffic Police as R.W.2 and Investigating Officer as R.W.3 and got marked documents as Ex.R1.

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HC-KAR

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b) The Tribunal after hearing the arguments and appreciating the evidence on record has answered Issue Nos.1 and 2 in the affirmative and Issue No.3 partly in the affirmative and awarded total compensation of Rs.23,12,400/- with interest at the rate of 6% per annum from the date of petition till realization and directed the respondent -corporation to pay the compensation amount with interest. Aggrieved by the said judgment and award, the corporation has filed appeal challenging it’s liability and quantum of compensation and claimants have filed appeal seeking enhancement of the compensation awarded by the Tribunal.

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4. Heard learned counsel for the corporation and learned counsel for claimants.

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5. Learned counsel for the appellant -Corporation would contend that Corporation has disputes the accident and there was Oralu Kallu on the left side of the road and the deceased in order to overtake the bus from the left side dashed against the said Oralu Kallu and sustained

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HC-KAR

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injury to his head and there is no negligence on the part of the driver of the bus. On perusal of Ex.P7 -MVI report, there is no damage to the bus and the bike has sustained damage on its front side. The evidence of R.W.1 -driver clearly indicate that the manner in which the accident took place. R.W.2 - the police constable who lodged FIR has admitted in his cross-examination about the presence of Oralu Kallu on the spot. R.W.3 -Investigating Officer has given contradictory evidence. The complaint –Ex.P2 has been filed by R.W.2 and he is not an eyewitness to the incident. He further contented that the accident occurred due to the sole negligence on the part of the deceased. He further contented that if the Court holds that there is negligence on the part of the driver of the bus, the Court has to contribute negligence on the part of the deceased also.

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6. Learned counsel for claimants would contend

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that in Ex.P4 -the sketch of the spot of the accident does not have any mention of Oralu Kallu present on the spot.

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HC-KAR

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Ex.P8 is the voluntary statement of the driver of the bus wherein he has clearly admitted that his rash and negligent driving which caused the accident. Evidence of R.W.2 itself indicates that the driver of the bus ran away from the spot along with the bus. R.W.2 and 3 who are examined by the corporation have not supported the case of the corporation and they have been treated as hostile. The corporation ought not to have treated them as hostile since there are no any statements of them. R.W.3 has not stated regarding presence of any Oralu Kallu on the spot. The complaint filed by the driver of the bus Ex.R1 is after 4 days of the accident. The postmortem report clearly indicates that the head of the deceased had been crushed. Even the helmet worn by the deceased was crushed. He further contends that filing of charge sheet against the driver of the bus itself clearly indicates that rash and negligent driving of the bus which caused the accident. The deceased was a team leader in Kiz Fasteners. P.W.2 is the employer of the deceased and he has stated that

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HC-KAR

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Ex.P23 is appointment letter issued by the company and

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Ex.P24 is the salary slip in which it is mentioned that he was getting salary of Rs.15,000/- per month and Rs.3,000/- towards petrol expenses. The said petrol expenses are paid by cash. Bank account statement – Ex.P17 indicate credit of his salary to the bank account. Considering the said aspect, the Tribunal has erred in taking the income of the deceased at Rs.14,500/-. With this he prayed for enhancement of the compensation.

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7. Having heard learned counsels, this Court has

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perused judgment, award and trial Court records.

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8. The following points arise for consideration:

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1. Whether the Tribunal is justified in holding that the accident occurred due to the sole negligence on the part of the driver of the BMTC bus and therefore, corporation is liable to pay the compensation?

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HC-KAR

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1. Whether the Tribunal is justified in taking the income of the deceased at Rs.14,500/per month?

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Point No.1: Ex.P11 is a copy of the charge sheet and it is filed against the driver of the BMTC bus. The said charge sheet itself indicates that the accident occurred due to the rash and negligent driving of the driver of the bus. Both claimants and the corporation have not examined the eyewitnesses. Ex.P4 is a copy of spot mahazar along with the spot sketch. There is no mention of presence of Oralu Kallu on the spot. Even though R.W.2 has stated in his cross-examination regarding presence of Oralu Kallu on the spot, there is no mention of the same in Ex.P4 –spot mahazar or the spot sketch. R.W.3 –Investigating Officer has also not stated the presence of Oralu Kallu on the spot. In order to establish that there was Oralu Kallu on the spot to which the deceased has dashed, the corporation has not chosen to examine any of the eyewitnesses cited in the charge sheet. Ex.P9 is Inquest

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HC-KAR

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Mahazar and Ex.P10 is post mortem report. Both indicate that the head of the deceased was crushed in the accident. Even the helmet worn by the deceased was crushed. Considering all these aspects, the Tribunal has rightly held that the accident occurred due to the rash and negligent

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driving of the driver of the BMTC bus and therefore, corporation is liable to pay the compensation to claimants. Accordingly, point No.1 is answered.

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9. Point No.2: The Tribunal has taken the

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income of the deceased at Rs.14,500/-. Considering the age of the claimant as 40 years, added future prospects at 40% and applied multiplier 18 and calculated the loss of dependency by deducting 50% towards living and personal expenses of the deceased. The claimants, in order to prove the income of the deceased, have examined P.W.2. P.W.2 is the Proprietor of Kiz Fasteners and given evidence that the deceased was working in their company as team leader and getting salary of Rs.18,000/- per month i.e., Rs.15,000/- per month as a fixed salary and Rs.3,000/-

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HC-KAR

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per month for petrol expenses. The appointment letter of the deceased is at Ex.P23 and there is also mention of the salary of the deceased at Rs.15,000/- per month and the petrol expenses of Rs.3,000/- per month. Ex.P24 is payment voucher for payment of salary of Rs.15,000/- per month. Ex.P17 is the statement of bank account of the deceased, wherein there are credits of salary of Rs.15,000/- by the employer. The evidence of P.W.2 indicates that a sum of Rs.3,000/- was paid to deceased towards petrol expenses by way of cash. The said amount of Rs.3,000/- paid towards petrol expenses cannot be considered to be an income of the deceased since he stated to have used the said amount for petrol for doing his work. Moreover there is no evidence on record except oral evidence of P.W.2 regarding payment of Rs.3,000/towards petrol expenses to the deceased. Therefore, the income of the deceased is to be taken at Rs.15,000/- per month as against Rs.14,500/- taken by the Tribunal.

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HC-KAR

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Considering the income of the deceased at Rs.15,000/-

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per month, the loss of dependency is calculated as under:

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Rs.15,000/- + 40% (Rs.6,000/-) = Rs.21,000/-

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minus 50% = Rs.10,500/- x12x18 =Rs.22,68,000/-.

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The compensation awarded by the Tribunal under other heads are just and proper. Accordingly, point No.2 is answered.

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10. In view of the above, claimants are entitled to total compensation under different heads as under:

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1	loss of dependency	Rs.22,68,000/-
2	Transportation and funeral expenses	Rs.20,000/-
3	Loss of estate	Rs.20,000/-
	Total	Rs.23,08,000/-

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The claimants are entitled to total compensation of Rs.23,08,000/- with interest at the rate of 6% per annum from the date of petition till realization. The corporation is liable to pay the compensation with interest to claimants.

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11. In view of the above the following

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15 -

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HC-KAR

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ORDER

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i) MFA No.4327/2023 filed by the corporation is

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dismissed.

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ii) MFA No.3898/2023 filed by claimants is allowed in the part .

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iii) Claimants are entitled to total compensation of

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Rs.23,08,000/- with interest at the rate of 6% per annum from the date of petition till realization.

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iv) The corporation shall deposit the said compensation amount with interest before the Tribunal within a period of 06 weeks from this day, failing which it is liable to pay the interest at the rate of 9% per annum from this date till payment of compensation.

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v) The order of the tribunal with respect to deposit of 20% of the compensation in the name of claimant No.2 is remained unaltered.

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