Karnataka High Court

The Division Manager Bmtc vs Annayappa on 7 June, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JUNE 2022

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.2531 OF 2020(MV)
                   C/W
          MFA No.7047 OF 2019(MV)

IN MFA No.2531/2020:

BETWEEN:

THE DIVISION MANAGER,
BMTC, K H ROAD,
BENGALURU - 580 027.
REPRESENTED BY ITS
CHIEF LAW OFFICER.
                                      ...APPELLANT

(BY SRI.F.S.DABALI., ADVOCATE)

AND:

ANNAYAPPA,
S/O HANUMAIAH,
AGED 55 YEARS,
R/AT VINAYAKA NAGARA,
HESARAGHATTA,
BENGALURU - 560 088.
                                  ...RESPONDENT

(BY SRI.SHRIPAD.V.SHASTRI,ADVOCATE)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST JUDGMENT AND AWARD DATED
30.04.2019, PASSED IN MVC NO.5403/2018, ON THE
FILE OF I-ADDITIONAL SMALL CAUSES JUDGE AND
MACT,    BENGALURU      (SCCH-11),   AWARDING
COMPENSATION OF RS.2,18,614/- WITH INTEREST AT
9 PERCENT P.A., FROM THE DATE OF PETITION TILL
REALIZATION.

IN MFA No.7047/2019:

BETWEEN:

ANNAYAPPA,
S/O HANUMAIAH,
AGED ABOUT 55 YEARS,
R/AT VINAYAKA NAGARA,
HESARAGHATTA,
BENGALURU - 560 088.
                                    ...APPELLANT
(BY SRI.SHRIPAD.V.SHASTRI., ADVOCATE)

AND:

THE DIVISION MANAGER,
BMTC, K H ROAD,
BENGALURU - 580 027.
                                 ...RESPONDENT
(BY SRI.F.S.DABALI, ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST JUDGMENT AND AWARD DATED
30.04.2019 PASSED IN MVC NO.5403/2018, ON THE
FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE &
MACT BENGALURU (SCCH-11), PARTLY ALLOWING
                                3



THE CLAIM PETITION FOR COMPENSATION                    AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

MFA No.2531/2020 has been filed by the BMTC

and MFA No.7047/2019 has been filed by the claimant

under Section 173(1) of Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act') being aggrieved

by the judgment and decree dated 30.04.2019 passed

by the I Additional Small Causes Judge & MACT,

Bengaluru in MVC No.5403/2018.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 22.08.2018 at about 04.00

P.M., the claimant was traveling as a passenger in

BMTC Bus bearing Registration No.KA-57-F-1945

which was driven by its driver at a high speed and in a

rash and negligent manner drove the said Bus without

observing the hump, consequently the claimant

jumped and fell down inside the Bus. As a result of

the same, the claimant sustained grievous injuries and

was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent/BMTC

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1, another witness was examined as

PW-2 and Dr Nagaraja B. N., was examined as PW-3

and got exhibited documents namely Ex.P1 to Ex.P23.

On behalf of the respondents, one witness was

examined as RW-1 but no document was exhibited.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

rash and negligent driving of the offending vehicle by

its driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.2,23,614/- along with

interest at the rate of 9% p.a. and directed the

respondent/Corporation to deposit the compensation

amount along with interest. Being aggrieved, these

appeals have been filed.

6. Sri F. S. Dabali, learned counsel for the

BMTC has raised the following contentions:

Firstly, the claimant has suffered injuries due to

his negligence. If he took some precautionary

measures, he would have not got any injuries in the

accident. Except the claimant, no other passengers in

the Bus has suffered injuries. Therefore, he has

suffered injuries due to his negligence. The Tribunal

is not justified in holding that the driver of the Bus

alone was negligent in causing the accident.

Secondly, even though the claimant claims that

he was working as a driver and was earning

Rs.12,000/- per month and he has produced Salary

Certificate and Bank Statement, the monthly income

assessed by the Tribunal Rs.9,000/- is on higher side.

Thirdly, PW-3, the doctor has stated in his

evidence that the claimant has suffered total physical

disability of 30% to lower limb and 10% to whole

body but he was not a treated doctor. The whole body

disability at 10% assessed by the Tribunal is on the

higher side.

Fourthly, considering the injuries sustained by

the claimant and considering the age and avocation of

the claimant, the overall compensation awarded by

the Tribunal is on higher side.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is also on

the higher side. Hence, he sought for allowing the

appeal filed by the Insurance Company.

7. Per contra, Sri Shripad V. Shastri, learned

counsel for the claimant has raised following counter

contentions:

Firstly, it is not in dispute that due to the driver

applied the break and without observing the hump,

the claimant fell down. The Police has registered a

FIR against the driver of the Bus and filed the charge

sheet. Considering all these documents, the Tribunal

is justified in held that the driver of the Bus alone was

negligent in causing the accident.

Secondly, even though the claimant claims that

he was working as a driver in the School Bus and

earning Rs.12,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.9,000/- per

month.

Thirdly, due to the accident, the claimant has

suffered L1 vertebra with implants in situ. PW-3, the

doctor has stated in his evidence that the claimant has

suffered total physical disability of 30% to lower limb

and 10% to whole body. Since he was working as a

driver, it will affect his avocation. But the Tribunal has

erred in taking the whole body disability at only 10%.

Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 11 days days. Even after

discharge from the hospital, he was not in a position

to discharge his regular work. He has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. The case of the claimant that on

22.08.2018 at about 04.00 P.M., the claimant was

traveling as a passenger in BMTC Bus bearing

Registration No.KA-57-F-1945 which was driven by its

driver at a high speed and in a rash and negligent

manner drove the said Bus without observing the

hump, consequently the claimant jumped and fell

down inside the Bus and sustained grievous injuries

and was hospitalized. Immediately after recovered, he

has filed a complaint. To prove his case, he has

examined himself as PW-1, in his evidence, he has

reiterated the statement made in the claim petition.

He has also produced FIR as per Ex.P1, Complaint as

per Ex.P2, Sketch as per Ex.P3, Mahazar as per Ex.P4,

IMV report as per Ex.P5 and the Charge sheet as per

Ex.P6.

It is not in dispute the claimant was traveling in

the offending Bus. Since the driver of the said Bus

drove the same in a rash and negligent manner

without observing the hump, the claimant fell down

and suffered injuries, the same is evident from the

complaint, FIR and the Mahazar. The Police has also

filed a charge sheet against the driver of the offending

Bus. Therefore, the Tribunal is justified in holding that

the driver of the Bus was negligent in causing the

accident.

In respect of the quantum, even though the

claimant claims that he was earning Rs.12,000/- per

month as a driver in the School Bus, he has produced

Salary Certificate as per Ex.P12 and the Bank

Statement as per Ex.P17. It is very clear from the

said documents, he was earning Rs.10,350/- per

month. Therefore the monthly income of the claimant

has to be assessed as Rs.10,350/- per month.

As per wound certificate, the claimant has

sustained traumatic L1 compression fracture. PW-3,

the doctor has stated in his evidence that the claimant

has suffered fracture of L1 vertebra and he has total

disability of 30% to lower limb and even the Disability

Evaluation Form as per Ex.P22, the disability assessed

by the doctor is also 30%. The claimant has also

produced driving licence to show that he was working

as a driver. Since he was working as a driver, the

fracture of L1 vertebra affects his future avocation.

Considering the injuries sustained by the claimant and

considering his avocation, I am of the opinion that the

whole body disability can be assessed at 20%. The

claimant is aged about 53 years at the time of the

accident and multiplier applicable to his age group is

'11'. Thus, the claimant is entitled for compensation

of Rs.2,73,240/- (Rs.10,350*12*11*20%) on account

of 'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 04 months. Therefore, the claimant is entitled for

compensation of Rs.41,400/- (Rs.10,350*4 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 11 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.3,300/- to Rs.10,000/-.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

suffered lot of pain during treatment and he has to

suffer with the disability stated by the doctor

throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.20,000/- to Rs.50,000/- 'pain and suffering' from

Rs.15,000/- to Rs.40,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 15,000 40,000 Medical expenses 28,514 28,514 Food, nourishment, 3,300 10,000 conveyance and attendant charges Loss of income during 18,000 41,400 laid up period Loss of amenities 20,000 50,000 Loss of future income 1,18,800 2,73,240 Future medical expenses 20,000 20,000 Total 2,23,614 4,63,154

11. In the result, the appeals are allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.4,63,154/- as against Rs.2,23,614/-.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the interest

awarded by the Tribunal 9% is scale down to 6%.

The respondent/BMTC is directed to deposit the

compensation amount after deducting Rs.5,000/-

which has already paid to the claimant as interim

compensation along with interest @ 6% per annum

from the date of filing of the claim petition till the date