Karnataka High Court

The Managing Director vs Smt. Venkatalakshmi on 20 January, 2022

Bench: Ravi V Hosmani

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF JANUARY, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

               M.F.A. NO. 4437/2016 (MV-I)
                            c/w
                  M.F.A. NO.4878/2016

IN MFA NO.4437/2016:

BETWEEN:

SMT. VENKATALAKSHMI @
VENKATALAKSHMAMMA
W/O THAMMAIAH
AGED ABOUT 36 YEARS
R/AT NO.190,BHIMANAKUPPI
BANGALORE SOUTH TALUK,
BENGALURU.
                                                ...APPELLANT

(BY SRI SHIVAKUMAR P., ADVOCATE, THROUGH VC)

AND:

THE MANAGING DIRECTOR,
BMTC
K.H. ROAD,
SHANTHINAGAR
BENGALURU 560 027
                                               ...RESPONDENT

(BY SMT. SOHANI HOLLA, ADVOCATE, THROUGH VC)
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     THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 04.03.2016
PASSED IN MVC.NO.875/2015 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE & XXXIV ACMM, MEMBER, MACT-7, COURT
OF SMALL CAUSUES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING EHANCEMENT OF
COMPENSATION.

IN MFA.NO.4878/2016:

BETWEEN:

THE MANAGING DIRECTOR,
BMTC
K.H. ROAD,
SHANTHINAGAR
BENGALURU 560 027
                                           ...APPELLANT

(BY SMT. SOHANI HOLLA, ADVOCATE, THROUGH VC)

AND:

SMT. VENKATALAKSHMI @
VENKATALAKSHMAMMA
W/O THAMMAIAH
AGED ABOUT 36 YEARS
R/AT NO.190,BHIMANAKUPPI
BANGALORE SOUTH TALUK,
BENGALURU.
                                                ...RESPONDENT

(BY SRI SHIVAKUMAR P., ADVOCATE THROUGH VC)

       THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 04.03.2016
PASSEDO    IN   MVC.NO.875/2015   ON THE FILE   OF   THE 9TH
                                     3




ADDITIONAL SMALL CAUSES JUDGE & 34TH ACM, COURT OF
SMALL         CAUSES,   MEMBER,   MACT-7,   BENGALURU,    AWARDING
COMPENSATION OF RS.4,85,244/- WITH INTEREST AT 8% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.


         THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT
ON 05.01.2022, THIS DAY, COURT DELIVERED THE FOLLOWING:


                               JUDGMENT

Challenging judgment and award dated 04.03.2016 in MVC

No.875/2015 passed by IX Addl. Small Causes & Addl. MACT,

Bengaluru, (hereinafter referred to as 'tribunal' ), these appeals are

filed.

2. Brief facts as stated are that on 19.10.2014 at about

7.15 P.M. when claimant Smt. Venkatalakshmi was boarding BMTC

bus bearing no.KA-01-F-1969 at Ramohallli Gate, Bengaluru, its

driver moved it in rash and negligent manner. As a result, she lost

balance, fell down and sustained grievous injuries. She was

immediately taken to Rajarajeshwari hospital, Kengeri, wherein she

took inpatient treatment for four months. Despite prolonged

treatment, she did not recover fully and sustained permanent

physical disability and consequent reduction in earning capacity.

Claiming compensation for the same, she filed claim petition

against respondent (BMTC) under Section 166 of the Motor Vehicles

Act, 1988.

3. On service of notice, BMTC entered appearance and filed

objections opposing claim petition as being misconceived. It

contended that there was false implication of bus. The implicated

bus was stated to be on its scheduled trip from Bidadi to K.R.

Market, on route no.226/1, when one of its tyres got punctured.

After getting puncture fixed at depot, it departed from Kengeri at

8.10 p.m. as reflected in trip/log sheet. Therefore, it could not have

caused accident at 7.15 P.M. at Ramohalli Gate as alleged. It was

further stated that there was 8 days delay in filing complaint, which

also substantiated that claim petition was an afterthought. Claim

petition was also opposed as being excessive.

4. Based on pleadings, tribunal framed following issues:

1) Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the B.M.T.C. Bus bearing Reg.No.KA-01-F-1969 by its driver and in the said accident, she sustained injuries.?

2) Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?

3) What Order?

5. In order to establish her case, claimant was examined as

PW.1. She also examined three other witnesses as PW.2 to PW.4.

Exhibits P.1 to P.24 were marked. On behalf of respondent one

witness was examined as RW.1. Exhibits R.1 to R.3 were marked.

6. On consideration, tribunal answered issue no.1 in

affirmative; issue no.2 partly in affirmative, assessing

compensation of Rs.4,85,244/- and issue no.3 by holding

respondent is liable to pay same with interest at 8% per annum.

7. Not satisfied with quantum of compensation, claimant has

filed MFA No.4437/2016; while respondent - BMTC filed MFA

No.4878/2016 assailing the award.

8. Shri P. Shivakumar, learned counsel for claimant/appellant

submitted that though claimant sustained permanent physical

disability due to non-union of pubic rami, tribunal awarded meagre

compensation of Rs.20,000/- towards 'loss of amenities'. It was

further submitted that that despite evidence of PW.3 - doctor, who

treated claimant stating that claimant would require one more

operation for pelvic reconstruction, which would cost Rs.1.50 lakhs.

Tribunal awarded only Rs.50,000/- towards 'future medical

expenses'. Hence, sought for enhancement.

9. On the other hand, Smt. Sohani Holla, learned counsel

for BMTC submitted that tribunal committed grave error in allowing

claim petition even though evidence on record would establish that

a false claim was filed. It was submitted that evidence on record

i.e., trip/log sheet, one of tyres of bus got punctured and it started

trip on said day, only at 8.10 P.M. Ignoring said evidence, tribunal

accepted claimant's version that bus caused accident at 7.15 P.M.

at Ramohalli gate.

10. Learned counsel submitted that Ex.P.20 - OPD card

produced by claimant indicated that she had consumed alcohol and

as history of injuries was stated to be due to self fall, BMTC was not

liable to pay compensation. Besides, there was delay of 9 days in

filing complaint which was also not satisfactorily explained. No

particulars were mentioned in Ex.P.14 regarding need for future

medical expenses and submitted that on over all consideration,

award was unsustainable and also excessive and sought

interference. She also submitted that award of interest at 8% per

annum was contrary to law, hence sought for reduction.

11. From above submission occurrence of accident and

claimant sustaining injuries is not in dispute. While claimant

contended that injuries were sustained in an accident caused by

BMTC bus. BMTC denies involvement of its vehicle in accident.

Tribunal held that accident occurred due to rash and negligent

driving of bus by its driver. It determined age of claimant at 37

years, her monthly income at Rs.8,000/-, loss of earning capacity

as 15% referring to evidence of PW.3 and awarded total

compensation of Rs.4,85,244/-. Both claimant as well as BMTC are

in appeal against said award. There is dispute regarding

involvement of vehicle, liability to pay compensation and also

regarding quantum of compensation. Therefore, following points

arise for consideration in this appeal:

i) Whether tribunal was justified in holding that claimant sustained injuries in accident involving BMTC bus?

ii) Whether quantum of compensation awarded by tribunal requires modification as sought for?

iii) Whether tribunal was justified in awarding interest at 8% per annum?

Point no.1:

12. In order to establish that accident occurred due to rash

and negligent driving of bus belonging to BMTC by its driver,

claimant produced FIR, complaint, spot panchanama, seizure

panchanama, M.V. Inspector report, wound certificate, charge

sheet, statements of Smt. Kempamma, Nagaraju and Mukundha

respectively as Exs.P.1 to P.10. From Ex.P.2 - complaint, it is seen

that complaint was lodged on 27.10.2014 at 2.00 PM in respect of

accident that occurred at 7.15 PM on 19.10.2014. Complainant -

Smt.Kempamma - mother of claimant. Based on same, FIR was

registered against driver of BMTC bus for offences punishable under

Sections 279 and 337 of IPC and also 187 of M.V. Act. In Ex.P.2 -

complaint, complainant has stated that immediately after accident,

claimant was admitted to hospital and driver sped away from

accident spot. As claimant had sustained severe injuries was under

treatment, complainant was attending to her, she was not able to

lodge complaint in time. Ex.P.5 shows no fresh damages were

noted by Motor Vehicle Inspector. The same, however would not be

helpful to decide the point in question. Ex.P.6 - wound certificate is

issued by Rajarajeshwari Medical College Hospital. As per said

certificate, claimant was accompanied by PC - 108 of Kumbalgodu

Police Station on 19.10.2014 with history of road traffic accident.

She was admitted at 7.15 PM on same day and was under

treatment till 19.02.2015. The cause of injuries was stated as due

to RTA and BMTC bus number is also mentioned. Ex.P.6 mentions

about patient having consumed alcohol. But it does not state that

she was under influence of alcohol or had lost control over limbs.

Among two injuries noted, one was grievous. Referring to X-ray,

fracture of superior and inferior rami were noted. After investigation

police filed Ex.P.7 - charge sheet for offences under Sections 338 ,

337 and 279 of IPC and Section 187 of M.V. Act against driver of

BMTC bus. Ex.P.7 cites Nagaraju - CW.3 as eye witness. He is

examined as PW.4. Ex.P.8 to 10 are statements recorded by police

under Section 161(3) Cr.PC. in which complainant, eye witnesses

i.e., Nagaraju and Mukundh reiterate complaint contents. PW.4

deposed that he was working as a coolie at Ramohalli and knew

claimant and her mother, as they were his neighbours. He stated

that accident occurred on 19.10.2014 and there were about 40

passengers in the bus and it sped away from accident spot. He

states that bus was having automatic door. He admits that he did

not give police compliant, but was present at the time of drawing

up of mahazar and police recorded his statement.

13. On the other hand, respondent - BMTC examined bus

driver as RW.1. RW.1 deposed that on 19.10.2014, he was driving

bus bearing KA-01-F-1969 on route no.226/1 as per its scheduled

trip from Bidadi to K.R.Market. On that day, as one of its tyres got

punctured, he took it to bus depot, Bidadi and after getting

puncture repaired, he left Bidadi depot at 7.05 p.m. and reported at

Kengeri bus station at 8 p.m. Thereafter, he started its trip from

Kengeri to Bidadi. RW.1 denied causing accident on said date.

During cross-examination, he admits that he had traversed Bidadi -

Kengeri route and stopped bus at Ramohalli gate. He admits that

10 days after accident, he came to know about complaint filed

against him. He also admits that police filed charge sheet against

him and that he had not challenged same.

14. Firstly, Ex.P.6 does not state that claimant was under

influence of alcohol and lost control over her limbs. Therefore, same

would not be a ground to deny compensation. Secondly, claimant

and complainant are illiterates. Therefore, discrepancy in stating

time of accident would not be fatal. Thirdly, claimant was under

treatment immediately after being admitted to hospital.

Complainant, mother of claimant stated that she was tending to her

daughter during treatment which led to delay in filing complaint.

The same would be sufficient explanation for delay. Further

admission of claimant in Rajarajeshwari Medical College Hospital as

medico legal case. Hospital records establish date of admission and

history of injuries as due to RTA involving BMTC bus and date of

discharge and would duly corroborate claimant's version.

Further, RW.1 admitted that he has not challenged charge

sheet filed against him. Merely on the basis of log sheet produced

by BMTC without examination of Works Manager or Works

Supervisor, it would not establish that offending bus was not at

accident spot as alleged by claimant. It is settled law that mere

delay in filing complaint would not be fatal. Moreover claimant has

also examined eye witness as PW.4, whose name also figures as

CW.3 in Ex.P.7. Even statements Exs.P.8 to P.10 also corroborate

claimant's case. In view of above, finding of tribunal that accident

was caused due to rash and negligent driving of bus driver and

claimant sustaining injuries due to same cannot be found fault with.

Hence, same is confirmed. Point no.1 for consideration is answered

in affirmative.

Point no.2:

15. In this regard, claimant has stated that she was 37

years of age, working as coolie and earning Rs.8,000/- per month.

Though, same is not substantiated, notional income for 2014 is

Rs.8,500/-. Therefore, determination of monthly income at

Rs.8,000/- cannot be found fault with.

In order to establish functional disability, claimant produced

wound certificate, medical bills, OPD slips marked as Exs.P.6, P.11

and P.24 respectively. From Ex.P.6 and treatment records viz., OPD

and inpatient record Exs.P.20 and P.21, it is established that

claimant sustained fracture of superior and inferior pubic rami. As

per evidence of Dr.C.V. Kumar - PW.3, fracture has not united,

there is shortening of her left leg by one inch, due to which

claimant is having difficulty while climbing stairs. She is unable to

sit crossed leg, use Indian toilet and suffers severe pain while

standing and walking. Based on his clinical observation, PW.3

assessed whole body disability at 15%, considering her avocation

as coolie. PW.3 further stated that claimant would require one more

surgery for reconstruction of her pelvic, estimated cost of which

was Rs.1.50 lakhs. Based on deposition of PW.3, tribunal

considered functional disability at 15%. As determination of

functional disability is by referring to evidence of doctor, same

cannot be said to be either unjustified, excessive or inadequate.

Tribunal awarded compensation of Rs.2,16,200/- by taking monthly

income of claimant at Rs.8,000/-, functional disability 15% and

applying proper multiplier '15'. Thus, there is no scope for

interference.

Claimant sustained fractures to superior and inferior rami.

Tribunal awarded Rs.50,000/- towards 'pain and suffering'. As

claimant sustained grievous fracture, which is not united, award of

Rs.50,000/- towards 'pain and suffering' appears to be just and

proper.

Tribunal has however, awarded Rs.20,000/- towards 'loss of

amenities'. Claimant is a 37 year old woman. There is non-union of

pubic bone. There is shortening of left leg by one inch. Considering

same, award of Rs.20,000/- would be inadequate. It would be just

and proper to award Rs.60,000/- towards same.

Tribunal has awarded Rs.48,000/- towards 'loss of income'

during laid up period. Claimant has taken inpatient treatment for

123 days. Besides same, claimant would have lost income during

recuperation. Therefore, loss of income during laid up period

assessed for six months would be justified and does not call for

interference.

Claimant produced medical bills for Rs.36,244/-, which is

awarded by tribunal. As there is full reimbursement, there is no

scope for enhancement.

Tribunal has awarded Rs.20,000/- towards 'conveyance',

Rs.20,000/- towards 'attendant charges' and Rs.25,000/- towards

'food, nourishment and diet charges'. Considering duration of

inpatient period, same appear just and proper and do not call for

interference.

Insofar as future medical expenses, PW.3 has stated that

there is dislocation of pubic bone and fracture was not united and

claimant requires surgery for reconstruction. PW.3 issued estimate

for surgery as per Ex.P.14 and also deposed that it would cost

Rs.1.50 lakhs. But, tribunal awarded only Rs.50,000/- towards

same. Ex.P.15 and Ex.P.24 - X-rays would indicate that fractures

have not united. Therefore, opinion of PW.3 would be corroborated.

But, PW.3 has not given particulars about cost of surgery. Hence, it

would be just and proper to enhance same to Rs.75,000/-.

16. Thus, claimant would be entitled to total compensation of

Rs.5,50,444/-. Point no.2 is answered partly in affirmative.

Point No.3:

17. This Court in Shriram General Insurance Company

Ltd., Rajasthan Vs. Sri Laxmi and others reported in 2018 (4)

AKR 808, has held that rate of interest in accident claims has to be

@ 6% per annum in view of Section 34 of Code of Civil Procedure,

1908. Hence, point no.3 is answered in affirmative. Rate of interest

at 8% awarded by tribunal is reduced to 6% per annum.

18. In the result, I pass following:

ORDER

(i) MFA No.4437/2016 is allowed in part.

           (ii)    Claimant is held entitled for total
                   compensation      of   Rs.5,50,444/-    as
                   against     Rs.4,85,244/-     awarded   by
                   tribunal.

(iii) Claimant is entitled for interest at 6% per annum from date of petition till deposit excluding Rs.75,000/-

                   awarded      towards      'future   medical
                   expenses.
           (iv)    MFA No.4878/2016 is allowed in part
                   only insofar as reduction of rate of
                   interest to 6% per annum.
           (v)     Amount in deposit is ordered to be
                   transmitted       to        tribunal    for
                   disbursement.





            (vi)   BMTC is directed to deposit balance
                   compensation    amount    within   six
                   weeks from date of receipt of copy of
                   judgment.