Karnataka High Court

The Managing Director vs Sri Vijay on 8 January, 2021

Author: Alok Aradhe Rangaswamy

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 08TH DAY OF JANUARY, 2021

                         PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                          AND

   THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

           M.F.A. NO.7683 OF 2015 (MV-I)
                          C/W
           M.F.A. NO.1258 OF 2016 (MV-I)


IN MFA NO.7683/2015:

BETWEEN:

THE MANAGING DIRECTOR
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION,
MUSHIRABAD,
HYDERABAD.
                                   ... APPELLANT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)


AND:


SRI. VIJAY
S/O SRI. S. RAJU,
AGED ABOUT 32 YEARS,
R/AT NO.1690,
4TH A CROSS, 9TH MAIN,
                            2



HAL III STAGE,
BENGALURU-560 075.             ... RESPONDENT

(BY SMT. AMBIKA, ADVOCATE FOR MOHD. SHERIFF,
ADVOCATE FOR CAVEATOR RESPONDENT)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED:
31.03.2015 PASSED IN MVC NO.5466/2012 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, COURT OF
SMALL CAUSES AND MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF Rs.23,12,000/- (MEDICAL
EXPENSES OF RS.3,00,000/-) WITH INTEREST @ 8% P.A.
ON AMOUNT OF Rs.20,12,000/- FROM THE DATE OF
PETITION TILL THE REALIZATION.

IN MFA NO.1258/2016:

BETWEEN:

MR. VIJAY
S/O RAJU,
AGED ABOUT 33 YEARS,
1690, 4TH A CROSS,
9TH MAIN, HAL III STAGE,
BENGALURU-560 075.
                                    ... APPELLANT
(BY SMT. AMBIKA, ADVOCATE FOR MOHD. SHERIFF,
ADVOCATE)

AND:

THE MANAGING DIRECTOR
APSRTC,MUSHIRABAD,
HYDERABAD,ANDHRA PRADESH.
                                  ... RESPONDENT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
                              3



     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED:
31.03.2015 PASSED IN MVC NO.5466/2012 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:

                       JUDGMENT

MFA No.7683/2015 is filed by the insurer challenging

the quantum of compensation and the liability fastened on

it to pay the compensation awarded by the Motor

Accidents Claims Tribunal, Court of Small Causes at

Bengaluru (henceforth referred to as 'the Tribunal') in MVC

No.5466/2012 in terms of the Judgment and Award dated

31.03.2015.

2. MFA No.1258/2016 is filed by the claimant

challenging the quantum of compensation as well as the

contributory negligence attributed against him and the

consequent reduction in the compensation in MVC

No.5466/2012.

3. The appellant in MFA No.7683/2015, who is

the respondent in MFA No.1258/2016 will henceforth be

referred to as the 'owner and internal insurer' of the

offending bus involved in the accident. The appellant in

MFA No.1258/2016, who is the respondent in MFA

No.7683/2015 will henceforth be referred to as the

'claimant'.

4. The claim petition discloses that on 22-12-

2011 at 4 p.m, the claimant was riding his scooter bearing

registration No.CKW-4384 and when he was moving on

Old Madras Road, NGEF, Opposite Metro station at

Byappanahalli, a bus bearing registration number AP-29-Z-

0059 (henceforth referred to as the 'offending bus') was

steered by its driver at a high speed and negligently

dashed against the claimant. He claimed that as a result of

the accident, he fell down and sustained grievous injuries.

A complaint was lodged by the brother of the claimant

against the driver of the offending bus and Crime

No.187/2011 was registered for the offences punishable

under Section 279 and 338 of the Indian Penal Code. The

claimant was rushed to Chinmaya Mission Hospital where

he was administered first aid and then shifted and

admitted at HOSMAT Hospital on 22-12-2011 for further

management. He was an inpatient at HOSMAT hospital for

26 days between 22.12.2011 and 16.01.2012 when he

underwent surgery. He was again admitted on 03-05-2012

for partial removal of illizarov frame on the right leg and

discharged on 05-05-2012 but there was a refracture of

the right femoral shaft. He was again admitted on 19-06-

2012 when interlocking nails were fixed for the right femur

and bone grafting was done and was discharged on 22-06-

2012. He was again admitted on 01-02-2013 and treated

for other deformities and discharged on 15-02-2013.

5. The claimant alleged actionable negligence by

the driver of the offending bus and thus filed a petition

under Section 166 of the Motor Vehicles Act, 1988 claiming

compensation of Rs.1,00,00,000/- from the owner and

internal insurer of the offending bus. The claimant alleged

that he was an insurance consultant who was earning a

sum of Rs.30,000/- per month and that by the time of

filing the claim petition, he had spent a sum of

Rs.10,00,000/- for his treatment. He also alleged that as a

result of the accident, he was completely bed ridden and

could not contact clients to convince them to avail

insurance policies through him.

6. The owner and internal insurer of the offending

bus contested the claim petition by an elaborate statement

of objections wherein, it was claimed that it was the

claimant who was negligent and caused the accident. It

was claimed that the spot of the accident was the Old

Madras Road opposite the Metro Rail Station where the

density of traffic is high. It is claimed that the driver of the

offending bus was steering it from Bangalore City towards

Tirupathi. At about 4 p.m., the claimant who was on his

scooter which was moving towards Bangalore made a 'U'

turn at a cut in the median and dashed against the front

right side tyre trim of the offending bus. It was contended

that the offending bus did not ram into the scooter as

there were no damages found on the front side of the bus

but the damage was on the front right side and alleged

that the claimant was negligent and was fully responsible

for the accident. It contended that its driver also tried to

lodge a complaint with the police but the police in collusion

with the owner and insurer of the scooter, lodged a

complaint against the driver of the offending bus. It further

contended that mere filing a case would not result in

proving that the driver of the offending bus was negligent.

7. With these rival contentions, the claim petition

was set down for trial. The claimant was examined as

PW.1, and a Doctor who assessed the disability sustained

by the claimant was examined as PW.2, the Doctor who

treated him and assessed his disability as PW.3, the

Assistant Administrative officer of the legal Department of

L.I.C as PW.4 and the Assistant Manager of National

Insurance Company as PW.5 and marked documents as

Exs.P1 to P70.

8. On the other hand, the owner of the offending

bus examined its driver as RW.1 but did not mark any

documents.

9. The Tribunal while answering the question of

negligence noticed the evidence of PW.1 where he deposed

that Old Madras Road is a busy road. He stated that just

prior to the accident, he saw the offending bus from a

distance of 50 meters. He said that the bus was coming

from the opposite side. He claimed that there was a signal

light at the accident spot. He claimed that the offending

bus was steered in the same direction and same position

on the road before the accident as well as at the time of

the accident. He admitted that the contents of the sketch

prepared by the police clearly depicted the accident spot

and scene. He admitted that there was no mention of a

signal light at the spot of the accident in the sketch and

mahazar. He deposed that he did not mention in his

petition that the driver of the bus jumped the signal. He

deposed that his brother who had lodged a complaint with

the police had not seen the accident. He admitted that the

front side of his scooter was damaged while the damage to

the bus was on the right side body, behind the front wheel.

He admitted a suggestion that the bus was steered from

the opposite direction on the side of the road. He admitted

a suggestion that as per the rules of the road, when he

had to take a right turn, he had to give preference to

vehicles coming from the right side of the road. However,

he denied that he was negligent and was responsible for

the accident.

10. The Tribunal considered the complaint lodged

with the police (Ex.P1), the sketch, spot mahazar (Ex.P4),

IMV report (Ex.P5) and charge sheet (Ex.P6) and held that

those documents were prepared by the police in the

discharge of their official duties and held that they were

presumed to be correct. The Tribunal held that the

claimant (PW.1) was not specifically questioned about the

documents prepared by the police during the investigation

of the criminal case which implicated the driver of the

offending bus. It highly relied upon the spot sketch and

spot mahazar drawn by the police and held that the Old

Madras Road is a two way with a median in between. In

view of the evidence of PW.1, the Tribunal held that the

claimant though noticed the offending bus coming at a

distance of 50 feet had moved his scooter. It held that the

driver of the offending bus who was proceeding on the

main road was required to observe the movement of

vehicles from the cross road onto Old Madras Road. Thus it

held that the claimant was guilty of contributory

negligence to "some" extent and fixed it at 20%.

11. In so far as the claim for compensation is

concerned, the Tribunal held that the claimant had placed

on record the medical records which indicated that he was

grievously injured in both the legs and that as per the

disability assessed by the Doctor (PW.2) as well as the

disability assessed by the Doctor (PW.3) who treated the

claimant, he was disabled to an extent of 87% to the limbs

and 29% to the whole body. However, the Tribunal has

held that the claimant had sustained disability at 25% to

the whole body.

12. The Tribunal noticed that the claimant was an

insurance agent which was evident from the IRDA license

(Exs.P21, 23) and the Identity cards issued by many

General Insurance Companies (Exs.P22, 24, 25, 26, 27,

29). He was appointed as an agent by the Life Insurance

Corporation of India (Ex.P18). It also found that the

claimant had actively participated in various training

programmes undertaken by the Insurance companies. It

found that the claimant had passed a test prescribed by

the Insurance Institute of India. Thus the Tribunal held

that the claimant was a self employed individual who was

into the business of promoting various insurance schemes

by various companies.

13. The Tribunal noticed that from the IT returns

for the assessment year 2011-12 (Ex.P34) that the

claimant had declared a taxable annual income of

Rs.3,23,431/- and had paid Income Tax of Rs.16,359/-

and thus after deducting the tax paid, the Tribunal

computed the net monthly income of the claimant at a

sum of Rs.26,953/- and rounded it off to Rs.27,000/-.

14. As regards the medical expenses incurred, the

Tribunal noticed from the evidence of PW.2 and PW.3 that

the claimant had suffered: closed Muller's C2 S/C fracture

of the right femur; SchatzkersType VI fracture of the right

tibial condyle with popliteal artery injury and Muller's C1

S/C fracture of the left femur with schatzkers type V tibial

condyle fracture with popliteal artery injury. It also found

that four toes of the left leg were amputated and an

undisplaced fracture of right patella. It noticed that the

claimant had availed a Mediclaim policy from National

Insurance Company which had allowed and reimbursed the

medical expenses of Rs.9,38,742/- and disallowed

Rs.2,08,048/-. It noticed that the claimant as well as PW.2

and PW.3 deposed that the claimant had to seek follow-up

advice from time to time and thus awarded a sum of

Rs.2,50,000/- towards the reimbursement of the medical

expenses. It noticed that whenever the claimant appeared

before the Court he was bound in a wheel chair. In order

to allay the fear of the owner of the offending bus that the

claimant was attempting to woo the sympathy of the

Court, the presence of the claimant was secured on

13.02.2015 and was asked to stand and walk but he could

not move his left foot without support as his left knee was

damaged. Hence the Tribunal held that the claimant

deserved a replacement of the left knee. It also noticed the

evidence of PW.2 and PW.3 that the claimant had to

undergo further surgery for removal of the implants.

Taking into account the above factors, the Tribunal

awarded the following compensation:

  Heads under which compensation         Amount
  is awarded                            (in Rupees)
  Pain and suffering                       1,00,000/-
  Loss of income during laid up period,    1,50,000/-
  diet, nourishment and etc.




  Attendant charges, conveyance, other         1,00,000/-
  incidental charges and etc.
  Medical expenditure                         2,50,000/-
  Future medical expenditure                  3,00,000/-
  Loss of future income(Rs.27,000/- x        12,96,000/-
  12 x 25/100 x 16)
  15% future prospects                        1,94,400/-
  Loss of amenities and comfort               2,00,000/-
  Permanent physical impairment               3,00,000/-
         TOTAL                              28,90,400/-

Thus, in view of the contributory negligence on the part of

the claimant, the compensation determined by the Tribunal

was proportionately reduced by 20% and it was held that

the claimant was entitled to compensation of a sum of

Rs.23,12,000/- and excluding the future medical expenses

of Rs.3,00,000/-, he was entitled to interest @ 8% per

annum from the date of the claim petition till realization.

15. The owner and internal insurer of the offending

bus has appealed against the finding of the Tribunal

regarding the contributory negligence on the part of the

claimant at 20% as well the quantum of compensation,

while the claimant has appealed against the finding that

the claimant had contributed to cause of the accident.

16. We have heard the learned counsel for the

parties and have carefully considered the records of the

Tribunal as well as its Judgment and award.

17. The occurrence of the accident on 22-12-2011

is not in dispute and it is also not in dispute that the

claimant was grievously injured in both the legs.

18. In so far as the question of contributory

negligence on the part of the claimant in causing the

accident is concerned, it is profitable to refer to the

Judgment of the Apex Court in the case of Andhra

Pradesh State Road Transport Corporation and

another vs K.Hemlatha and others reported in 2008

(6) SCC 767, the relevant portion of which is extracted

below:

"To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the

last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless."

This Court is aware and can therefore take judicial notice

of the fact that the accident spot is on an extremely busy

road where a high density of vehicles move and just

beyond the spot of the accident the national highway

begins and hence heavy goods and passenger vehicles ply

on the road. The offending bus is also an interstate

passenger vehicle. As noticed by the Tribunal, the

offending bus was steered from the Bangalore City towards

Tirupathi on the main road while the claimant attempted to

enter the main road from a cross road and in the process,

he rammed against the right side behind the front wheel.

Since the claimant saw the offending bus from a distance

of 50 meters, it was incumbent upon him to have waited

for the bus to move. This is also the rules of the road.

When the claimant had the opportunity to wait, watch and

proceed which could have easily prevented the accident,

he ought to have exercised care and caution. RW.1 who

was the driver of the offending vehicle deposed that the

claimant came from the opposite direction and took a 'U'

turn disregarding the number of vehicles that were moving

from the opposite direction and in the process dashed

against the offending bus on the right side. The fact that

the front portion of the scooter and the right front side of

the offending bus was damaged is not disputed by the

claimant but is categorically admitted by him. This also

corresponds with the IMV report. As a matter of fact, the

claimant admitted that the sketch at Ex-P3 was correct

depiction of the accident spot. The sketch also reveals

that the claimant was attempting to take a 'U' turn at the

median while the offending bus was moving on the right

track of the road on the opposite side. As held by the Apex

Court in the case of APSRTC vs. K. Hemlatha (supra) in

a case of contributory negligence, the test to determine is

as to whether the persons involved acted with care and

caution and as to whether who could have averted the

accident. In cases of contributory negligence, it is hard to

procure any eye witness and in the present case, the

driver of the offending bus which belongs to Andhra

Pradesh cannot definitely secure an eye witness in

Bangalore. Be that as it may, the evidence on record is

telling and is clear that the claimant was clearly guilty of

contributory negligence, as he ought to have exercised due

care and caution by waiting at the median to allow the

offending bus to pass before taking the 'U' turn. After all as

per the rules of the road, the offending bus was entitled to

move uninhibited on the road when it was moving on the

correct side of the road. The driver of the offending bus

could not have averted the accident, as doing that could

have caused injury to some other innocent road user,

having regard to the volume of traffic on that road. Hence,

this is one of the rare cases where, there is tell tale

evidence on record which shows that the claimant was

guilty of contributory negligence. While, the claimant was

negligent, the driver of the offending bus was also guilty of

negligence as he could see the cut in the median and he

must have expected smaller vehicles taking a turn or a 'U'

turn at the median cut. This median cut was on the right

side of the driver of the offending bus and therefore it

cannot be said that the driver could not have seen the

claimant attempting a 'U' turn at the median cut. After all,

the offending bus had an interstate permit and this was

the regular route on which the vehicle would be driven. It

was not the case of RW.1 that he was deputed on this

route for the first time and that he was not aware of the

route. Hence both the claimant and the driver of the

offending bus were equally responsible for the accident.

19. In so far as the claim for compensation is

concerned, it is undisputed that the claimant was an

insurance agent and evidence galore in the case which

points to the above. The disability of the claimant to the

extent of 29% to the whole body cannot be disbelieved as

the evidence of PW.2 and PW.3 is not discredited. As

regards the income of the claimant, the Tribunal misread

the Income Tax returns of the claimant. The IT returns at

Ex-P34 for the assessment year 2011-12 indicates his

gross income at Rs.4,74,010/- and that he had paid tax of

Rs.32,343/-. Hence the income of the claimant was

Rs.4,41,667/- per annum. The Tribunal committed an error

in treating the income of the claimant at Rs.3,23,431/-.

Having regard to the nature of injuries suffered by the

claimant and the fact that the claimant was in need of a

knee replacement surgery as noticed by the Tribunal on

13-02-2015, the Tribunal ought to have considered

granting 50% of the income during the laid up period from

the date of accident till 13-02-2015, since the claimant

continued to earn commission on the concluded insurance

policies. The Tribunal must have awarded the cost of the

"Ottobock silicone partial foot prosthesis" whose cost was

then Rs.49,900/-. He was also entitled for the cost of the

specialized MCR footwear at Rs.8,000/- per year at least

till he underwent a knee replacement surgery. PW.2

deposed that the fractures had united but with severe

arthritic changes in both knees and four toes of the left leg

were amputated with terminal skin grafts. He deposed that

the claimant would need a sum of Rs.7,00,000/- towards a

bilateral TKR and fusion of the left tallarjoint. The evidence

of PW.3 who was the Doctor, who treated the claimant also

categorically deposed to the same effect.

20. However, it is noticed that the Tribunal had

awarded compensation towards "15% future prospects"

and "Permanent Physical impairment" which are the non-

conventional heads under which compensation is awarded.

This Court is conscious of the fact that the nature of the

avocation of the claimant involves frequent movement

from place to place in search of customers and provide

service to them. This Court is equally conscious of the fact

that the claimant is deprived of the strength in his legs to

pursue his source of livelihood with the same vigour and

vitality. However, it is not known whether the claimant

has undergone any surgery for knee replacement or for

"bilateral TKR and fusion of the left tallar joint". In this

regard, he has not placed on record any additional

documentary evidence before this Court. He also has not

placed on record any report of any clinical examination to

demonstrate his present condition. In the light of the

evidence of PW.2 and PW.3 that the fractures have united

and having regard to the age of the claimant, he must

have recuperated from the injuries. The claimant for

reasons unknown did not place on record his income tax

returns for the years subsequent to the assessment year

2011-12. As a matter of fact and as admitted by the

claimant, he had earned commission of Rs.55,707/-as per

Ex-P50 and Rs.17,613/-as per Ex-P51, Rs.14,814/- as per

Ex-P52 from National Insurance Company. He also

admitted that he had earned commission i.e., sum of

Rs.63,321/- between 01-04-2012 to 31-03-2013. Having

regard to the nature of the avocation of the claimant, this

Court is conscious of the fact that the claimant would

continue to earn commission on the policies that he had

gathered till he met with the accident, until the policy

matures or a claim is made. It is now trite that it is the

duty of the Tribunal to award "Just compensation" and not

compensation which is fanciful or exorbitant by being

blinded by sympathy to the victim of a road traffic

accident. This Court cannot ignore the fact that the

claimant is an able bodied man and can exert himself back

into his avocation albeit with some difficulty. It is that

difficulty which has to be compensated, so as to enable the

claimant to move on.

21. Hence, taking into consideration the above, the

income as assessed by the Tribunal at Rs.27,000/- per

month has to be enhanced to a sum of Rs.36,000/- per

month to set off the loss. The disability suffered by the

claimant determined by the Tribunal at 25% cannot be

sustained. The claimant is entitled to 50% income during

the laid up period from the date of the accident till

13-02-2015 when he was examined by the Tribunal and

this could offset the loss of opportunity during his period

of treatment. He is also entitled to the cost of the

prosthetic toes at Rs.50,000/- and also the future medical

expenses and also a sum of Rs.5000/- every year for the

special footwear that the claimant has to wear for the rest

of his life. He is also entitled for reimbursement of the

medical expenses as determined by the Tribunal. Hence

the compensation is redetermined as follows:

        Heads      under   which  Amount
        compensation is awarded (in Rupees)
        Pain and suffering       1,00,000/-

        Loss      of      income     @   6,89,810/-
        Rs.18,000/-       per    month
        during the laid up period
        from        22.12.2011      till
        February 2015 (38 months)
        (Rs.5810/- + Rs.18,000/- x
        38 months)
        Loss      of      income     at 21,29,760/-
        Rs.36,000/- per month due
        to disability of 29%
        (36,000/-x 12x 17x29/100)
        Reimbursement of medical         2,50,000/-
        expenses and cost of follow




         up treatment
         Future medical expenses        3,00,000/-

         Cost of Prosthetic toe           50,000/-

         Cost of special footwear @ 1,60,000/-
         Rs.5000/- per year for the
         next 32 years

Loss of amenities, marriage 2,00,000/-

         prospects
         Attendant       charges    at 2,35,940/-
         Rs.200/- per day / Rs.6000/-
         per month from 22-12-2011
         till the date (31.03.2015) of
         Judgment rendered by the
         Tribunal (Rs.194 x 10 +
         Rs.6000 x 39 months)
         Cost of conveyance               50,000/-

         Cost of nourished food etc.        25,000/-

         Total                          41,90,510/-

22. In view of the above, it is held that the total

compensation payable is determined at Rs.41,90,510/-. In

so far as the entitlement of the claimant to compensation

is concerned, in view of the finding that the claimant and

the driver of the offending bus were equally responsible for

the accident, the claimant is entitled to a sum of

Rs.20,95,255/- as compensation along with interest at 7%

per annum, having regard to the prevalent rate of interest,

from the date of the claim petition till the date of

realization.

23. Hence, the appeal, M.F.A. No.7683/2015, filed

by the owner and internal insurer of the offending bus is