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Karnataka High Court · body

2011 DIGILAW 1091 (KAR)

Sanaulla v. Divisional Manager

2011-11-11

N.K.PATIL

body2011
Judgment :- These two appeals by the claimants and the Corporation are directed against the same judgment and award dated 4th June 2007, passed in M.V.C.No.1833/2006, by the VI Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Metropolitan Area, Bangalore (SCCH-2), (for short, ‘Tribunal’). 2. While the claimants have filed the appeal seeking enhancement of compensation on the ground that, the compensation awarded by Tribunal is unjust, improper and needs to be enhanced, the Corporation has filed the appeal, challenging the liability fastened on it and accordingly, the impugned judgment and award is liable to be set aside. 3. The facts in brief are that, the claimants are the parents of the deceased Zakaulla. They filed the claim petition under Section 163-A of the Motor Vehicles Act, contending that, at about 7:00 P.M., on 19-02-2006, when the deceased was travelling as a pillion rider on Motor Cycle bearing No.CTJ-2214, ridden by his brother, near Railway Bridge, Malleshwaram, Bangalore, by observing traffic rules, he met with an accident on account of rash and negligent driving by the driver of a BMTC bus bearing No.KA-01/F-2907. Due to the impact, the deceased and also his brother sustained grievous injuries and died on the spot. 4. It is the specific case of the Corporation that, the Tribunal has seriously erred in fastening the liability on the Corporation, for the reason that the accident has occurred purely on account of sheer negligence on the part of the rider of motor cycle and that the driver of the BMTC bus has not contributed to the cause of accident, in any manner. Therefore, he submits that the liability fastened on it is liable to be set aside. 5. However, it is the specific case of the claimants that, due to the rash and negligent driving by the driver of the BMTC Bus, the accident has occurred, resulting in the death of the deceased. Further, it is their case that they have filed the claim petition under Section 163-A of the Motor Vehicles Act and hence, there is no need to prove the negligence on the part of the driver of the offending bus. Further, it is their case that they have filed the claim petition under Section 163-A of the Motor Vehicles Act and hence, there is no need to prove the negligence on the part of the driver of the offending bus. It is also the case of the claimants that the compensation awarded by Tribunal is also on the lower side, for the reason that the Tribunal has seriously erred in deducting 50% towards the personal expenses of the deceased, in a petition filed under Section 163-A of the Act. Therefore, he submits that as per Second Schedule to Section 163-A of the Motor Vehicles Act, 1/3rd may be deducted towards the personal expenses of the deceased and impugned judgment and award passed by Tribunal may be accordingly modified. 6. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, under Section 163-A of the Motor Vehicles Act, seeking compensation of a sum of Rs.07,00 lakhs against the Corporation. The said claim petition had come up for consideration before the Tribunal on 4th June, 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of a sum of Rs.3,28,500/-, under different heals, with 7% interest per annum, from the date of petition till the date of realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants are in appeal before this Court, seeking enhancement of compensation and being aggrieved by the liability fastened on the Corporation, the Corporation is in appeal, seeking to set aside the same. 7. I have heard learned counsel for claimants for considerable length of time and gone through the memorandum of appeals filed by claimants as well as Corporation. 8. It is the specific submission of Shri. Sripad V. Shastri, learned counsel appearing for claimants that the Tribunal has erred in not awarding reasonable compensation as per the Second Schedule to Section 163-A of the Motor Vehicles Act. Therefore, he submits that the impugned judgment and award passed by Tribunal is liable to be modified in terms of the said Schedule. 9. Therefore, he submits that the impugned judgment and award passed by Tribunal is liable to be modified in terms of the said Schedule. 9. Whereas, it is the specific case of the Corporation that the observation of the Tribunal that since the claim petition is filed under Section 163-A of the Act, there is no need of proving negligence on the part of the driver of the bus, is not justifiable. It is their further case that the specific case of the Corporation before the Tribunal was that on 19-02-2006, at about 7:00 P.M., when the driver of the BMTC bus was carefully and cautiously driving the bus at MKK Road, 5th Cross, Near Railway Bridge, Malleshwaram, Bangalore, at that time, the deceased Zakaulla, who is the deceased in MVC No.1833/2006 and the rider of the motor cycle, who is the elder brother of the deceased, (who is also deceased in MVC No.1835/2006), came from opposite direction with great speed and in a rash and negligent manner and lost control over the motor cycle and dashed against the Road median divider as a result of which, both the rider as well as the pillion rider, i.e. the deceased Zakaulla and his brother fell on the right side of the other side of the road. At that time, the driver of the bus was coming from opposite direction carefully and cautiously and could not anticipate that both of them would come to the other side of the road and thus the rider and pillion rider, both succumbed to the injuries. Thus, the claimants knowing fully well about the negligence of their sons, have chosen to file the claim petition under Section 163-A of the Act and hence, the claim petition itself was not maintainable and was liable to be dismissed. But, the Tribunal, seriously erred in holding mechanically that in a petition filed under Section 163-A of the Act, there is no need to prove the negligence. Therefore, it is their case that the liability fastened on the Corporation is liable to be set aside. 10. But, the Tribunal, seriously erred in holding mechanically that in a petition filed under Section 163-A of the Act, there is no need to prove the negligence. Therefore, it is their case that the liability fastened on the Corporation is liable to be set aside. 10. After hearing learned counsel for the claimants and after careful perusal of the impugned judgment and award passed by the Tribunal, the points that arise for my consideration are: I] Whether the Tribunal is justified in recording a finding that the accident has occurred due to the negligence on the part of the driver of BMTC Bus? II) Whether the compensation awarded by Tribunal is just and reasonable? Re-point I]: The occurrence of accident and the resultant death of the deceased are not in dispute. The Tribunal, after assessing the oral evidence of PW 1 on behalf of claimants and RW.1 on behalf of Corporation, coupled with the documentary evidence at Exs.P1 to P6, has come to the conclusion that since the claim petition is filed under Section 163-A of the Act, there is no need to prove the negligence. The specific case of the Corporation was that, they have filed the written statement contending that the accident has occurred solely due to the rash and negligent driving by the rider of the motor cycle in which the deceased was travelling as a pillion rider and that the driver of the BMTC bus was coming slowly and cautiously on the opposite side of the road and could not have anticipated that the deceased would fall from the other side of the road and that the Corporation is in no way responsible for the cause of accident and the resultant death of the deceased. Therefore, the Corporation is not liable to indemnify the claimants for the death of the deceased in the road traffic accident. In this regard, it can be seen that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has categorically stated that the claimants have produced FIR, charge sheet, P.M. Report, Mahazar and inquest to prove the accident. Further, as per the sketch, both vehicles were moving in the same direction and it is not shown from opposite direction as stated and contended by the Corporation. Accordingly, the Tribunal has negatived the said contention taken by the Corporation. Further, as per the sketch, both vehicles were moving in the same direction and it is not shown from opposite direction as stated and contended by the Corporation. Accordingly, the Tribunal has negatived the said contention taken by the Corporation. The same is based on documentary evidence, and hence, just and proper and does not call for interference. Thereafter, subsequently, the Tribunal has referred that since the petition is filed under Section 163-A of the Act, there is no need to prove negligence on the part of the driver of the offending bus. Therefore, having regard to the facts and circumstances of the case and the finding recorded by the Tribunal, after careful evaluation of the oral and documentary evidence available on file, I am of the considered view that the Tribunal is justified in holding that the Corporation is liable to indemnify the award passed by Tribunal. Hence, the said finding of the Tribunal does not call for interference. Re-point II]: So far as the quantum of compensation awarded by Tribunal is concerned, I am of the view that the Tribunal seriously erred in calculating the compensation payable towards loss of dependency, inasmuch as it has proceeded to deduct 50% towards the personal expenses of deceased, while dealing with a claim petition filed under Section 163-A of the Act. As per Second Schedule to Section 163-A of the Act, 1/3rd has to be deducted towards the personal expenses of the deceased. However, I accept the monthly income assessed by the Tribunal at Rs.3,000/-. As per the Second Schedule, since the deceased was aged about 18 years, the compensation comes to Rs.6,84,000/-. Out of the said sum, 1/3rd (i.e. Rs.2,28,000/-) is to be deducted towards the personal expenses of the deceased. Accordingly, after such deduction, the compensation payable towards loss of dependency works out to Rs.4,56,000/-. Further, a sum of Rs.2,000/- towards funeral and obsequies and Rs.2,500/- towards loss of estate awarded by Tribunal is just and proper and does not call for interference. Thus the total compensation would work out to Rs.4,60,500/- as against Rs.3,28,500/-. Thus, there would be an enhancement of compensation of Rs.1,32,000/- with interest at 6% per annum from the date of petition till the date of realization. 11. Thus the total compensation would work out to Rs.4,60,500/- as against Rs.3,28,500/-. Thus, there would be an enhancement of compensation of Rs.1,32,000/- with interest at 6% per annum from the date of petition till the date of realization. 11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Corporation is dismissed as devoid of merit. The impugned judgment and award dated 4th June 2007, passed in M.V.C.No.1833/2006, by the VI Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Metropolitan Area, Bangalore (SCCH-2), is hereby modified, awarding compensation of a sum of Rs.1,32,000/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal. The Corporation is directed to deposit the enhanced compensation with interest within three weeks from the date of receipt of a copy of this judgment and award. The enhanced compensation with interest shall be released in favour of both the claimants – parents of the deceased, in equal proportion, immediately on deposit by the Corporation. The amount in deposit by the Corporation is directed to be transmitted to the jurisdictional Tribunal, forthwith. Office to draw award, accordingly.