Sri Vinay S P vs The Managing Director
2022 Latest Caselaw 8460 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF JUNE 2022

                         BEFORE

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

               MFA No.6747 OF 2018 (MV)
                         C/W
               MFA No.8389 OF 2018 (MV)

IN MFA NO.6747/2018:

BETWEEN:

The Managing Director,
Bangalore Metropolitan
Transport Corporation,
Double Road, K.H.Road,
Shanthinagar,
Bangalore - 560 027.                       ... Appellant

(By Sri.D.Vijaykumar., Advocate)

AND:

Sri.Vinay.S.P.,
S/o Puttalingaiah,
Aged about 19 years,
R/at Seebanahalli,
Malur Hobli,
Channapatna Taluk,
Ramanagaram District.                 ... Respondent

(By Sri.Gopala Krishna.N, Advocate)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 07.06.2018 passed
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in MVC No.2/2017 on the file of the Senior Civil Judge and
JMFC, Additional MACT, Channapattana, Ramanagara,
awarding compensation of Rs.23,88,926/- with interest @
6% p.a. from the date of petition till the date of deposit.

IN MFA NO.8389/2018:

BETWEEN:

Sri.Vinay.S.P.,
S/o Puttalingaiah,
Aged about 19 years,
R/at Seebanahalli,
Malur Hobli,
Channapatna Taluk,
Ramanagaram District.                           ... Appellant

(By Sri.Gopala Krishna.N, Advocate)

AND:

The Managing Director,
Bangalore Metropolitan
Transport Corporation,
K.H.Road, Bangalore - 560 027.            ... Respondent

(By Sri.D.Vijaykumar., Advocate)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 07.06.2018 passed
in MVC No.2/2017 on the file of the Senior Civil Judge and
JMFC, Additional MACT, Channapattana, Ramanagar
District, partly allowing the claim petition for compensation
and seeking enhancement of compensation.

      These appeals, coming on for Hearing, this day, this
Court, delivered the following:
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                   JUDGMENT

MFA No.6747/2018 is filed by the Bangalore

Metropolitan Transport Corporation (for short, 'the

Corporation') whereas MFA No.8389/2018 is filed by

the claimant under Section 173(1) of the Motor

Vehicles Act, (for short, 'the Act') being aggrieved by

the judgment and award dated 07.06.2018 passed by

the MACT, Channapattana in MVC No.2/2017. Since

the challenge is to the same judgment, both the

appeals are clubbed together, heard and common

judgment is being passed.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.10.2016 at about 6.00

p.m. the claimant was proceeding as a pillion rider in

the Honda Activa bearing registration No.KA-51/EN-

5210 on Uttarahalli main road from Channasandra to

Kengeri. At that time, a BMTC bus bearing registration

No.KA-01/FA-199 being driven by its driver at a high

speed and in a rash and negligent manner, dashed to

the vehicle of the claimant. As a result of the

aforesaid accident, 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

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the

claimant and the medical expenses are denied. It was

pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the

accident was due to the rash and negligent riding of

the rider of the Honda Activa vehicle. It was further

pleaded that the quantum of compensation claimed by

the claimant is exorbitant. Hence, he sought for

dismissal of the petition.

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 and Dr.Raju K.P. was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P16. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R2. 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.23,88,926/- along with interest at

the rate of 6% p.a. and directed the Corporation to

deposit the compensation amount along with interest.

Being aggrieved, these appeals have been filed.

6. The learned counsel for the Corporation has

raised the following contentions:

Firstly, the accident has occurred due to rash

and negligent riding of the rider of the scooter. The

rider of the scooter tried to overtake the bus and lost

control over the vehicle and hit the right side of the

bus and fell down. The claimant who is the pillion

rider has suffered injuries. The Tribunal has erred in

holding that the driver of the bus alone is negligent in

causing the accident.

Secondly, rider of the scooter has not been

made as a party and they have not examined the

rider of the scooter who is the complainant in the

case. Therefore, the finding given by the Tribunal that

the driver of the bus alone is negligent in causing the

accident is unsustainable.

Thirdly, at the time of the accident claimant was

a student and he was a non-earning member of the

family. The Tribunal while assessing the income has

considered Rs.6,000/- per month which is on the

higher side.

Fourthly, even though the doctor has assessed

the whole body disability at 90%, considering the age

and avocation and injuries suffered by the claimant

90% whole body disability assessed by the Tribunal is

on the higher side.

Fifthly, 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 the higher side.

Sixthly, the doctor has deposed that the

claimant requires Rs.1,50,000/- for 'future medical

expenses', but the Tribunal has awarded

Rs.2,50,000/-, which is on the higher side. Hence, he

sought for allowing the appeal filed by the

Corporation.

7. On the other hand, the learned counsel

appearing for the claimant has raised the following

contentions:

Firstly, the claimant is a pillion rider, there is no

negligence on the part of the claimant.

Secondly, the accident has occurred due to the

negligence of the driver of the bus. Immediately after

the accident the rider of the scooter has given a

complaint against the driver of the bus. The police

after thorough investigation have filed charge sheet.

The driver of the bus has not lodged any complaint

against the rider of the scooter. It is very clear from

the documents produced by the parties that the driver

of the bus alone is negligent in causing the accident.

Thirdly, at the time of the accident, the claimant

was aged about 18 years and he was doing agriculture

and was earning Rs.20,000/- per month, but the

Tribunal has taken the notional income as only

Rs.6,000/- per month.

Fourthly, even in case of a minor who is a

student, the Hon'ble Apex Court has held that notional

income has to be considered. In support of his

contention, he relied upon the decision in the case of

KAJAL vs. JAGDISH CHAND AND OTHERS reported

in AIR 2020 SC 776 wherein it is held that even in

respect of students who are non-earning members,

who have a very good future, atleast minimum wages

payable to the skilled workman has to be considered.

Fifthly, since left leg has been amputated at hip

level and the doctor has deposed that there is 90%

whole body disability, due to the disability he is unable

to do his day today work, therefore, he is entitled for

addition of future prospects. In support of his

contention, he has relied upon the judgment of the

Hon'ble Apex Court in the cases of PAPPU DEO

YADAV vs. NARESH KUMAR AND OTHERS' 2020

SCC Online SC 752 and 'ERUDHAYA PRIYA vs.

STATE EXPRESS TRANSPORT CORPORATION

LTD. 2020' SCC Online SC 601.

Lastly, due to the accident the claimant has

suffered grievous injuries. At the time of the accident

he was aged about 18 years. The Tribunal has failed

to grant any compensation for 'loss of marriage

prospects'. Hence, he sought for enhancement of

compensation.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. The case of the claimant is that on

29.10.2016 at about 6.00 p.m. the claimant was

proceeding as a pillion rider in the Honda Activa

bearing registration No.KA-51/EN-5210 on Uttarahalli

main road from Channasandra to Kengeri. At that

time, a BMTC bus bearing registration No.KA-01/FA-

199 being driven by its driver at a high speed and in a

rash and negligent manner, dashed to the vehicle of

the claimant. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized. After recovering from the injury he filed

the claim petition. To prove his case he has examined

himself as PW1 and produced 16 documents. He has

reiterated the averments made in the claim petition.

In his cross-examination nothing has been elicited to

disbelieve the version in the chief-examination. To

disprove the case of the claimant the Corporation has

examined the driver of the offending vehicle who

deposed that as on the date of the accident he was

driving the bus carefully and cautiously by observing

the traffic rules and the rider of the scooter tried to

overtake the bus and dashed to the right side of the

bus and fell down and there is no negligence on the

part of the driver of the bus.

10. I have perused the evidence of the parties

and the sketch produced as Ex.R2 and the mahazar as

Ex.R1. It is very clear from the mahazar that both the

vehicles are proceeding in the same direction from

Channasandra towards Kengeri. The driver of the bus

tried to take right side, at that time the right part of

the bus touched the scooter, he fell down and

sustained injuries. Immediately after the accident the

rider of the scooter has lodged a complaint against the

driver of the bus. The police, after thorough

investigation have filed charge sheet against the

driver of the bus. The driver of the bus has not made

any efforts to lodge a complaint against the rider of

the scooter. Considering the evidence of the parties

and considering the FIR, chare sheet, mahazar,

sketch, IMV report, the Tribunal is justified in holding

that the driver of the bus alone is negligent in causing

the accident and answering issue No.1 in the

affirmative.

Re.quantum:

11. The claimant claims that he was earning

Rs.20,000/- per month. He has not produced any

documents to prove his income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken

place in the year 2016, the notional income has to be

taken at Rs.9,500/- p.m. The Tribunal after

considering the evidence of the doctor and considering

the injuries suffered by the claimant has rightly

assessed the whole body disability as 90%.

In view of the judgment of the Hon'ble Apex

Court in the case of PAPU DEO YADAV (supra) and

ERUDAYA PRIYA (supra) the claimant is entitled for

addition of future prospects.

The notional income has been fixed at

Rs.9,500/- per month. Since the claimant was aged

about 18 years 40% has to be added on account of

future prospects in view of the law laid down by the

Constitution Bench of the Supreme Court in the case

of NATIONAL INSURANCE CO. LTD. -v- PRANAY

SETHI AND OTHERS reported in AIR 2017 SC

5157. Thus, the monthly income comes to

Rs.13,300/-. Considering the age of the claimant

multiplier applicable to the age group is '18'. Thus

the claimant is entitled to compensation of

Rs.25,85,520/- (Rs.13,300*12*18*90%) on account

of 'loss of future income due to disability'.

As per wound certificate, the claimant has

sustained the following injuries:

(1) Crush injury of left thigh, hemipelvis and lower abdomen with left external ilial artery rupture with crush syndrome.

(2) Mangled extremity severity score - 8 (high energy injury, persistent hypotension, pulseless and cold limb).

(3) Open bilateral pelvic fracture with morale - lavalle lesion left thigh and left lower abdomen.

(4) Hypovolemic shock.

(5) Rhabdomylysis.

(6) Open fracture dislocation of 3rd, 4th and 5th carpometacarpal joints left hand with degloving wound.

(7) Urethral rupture

(8) Deep abrasion left forearm.

He was treated as inpatient for more than 3

months in the hospital and thereafter, has received

further treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

evidence of the doctor and the injuries suffered by the

claimant, the compensation awarded for 'pain and

sufferings' has to be reduced from Rs.1,50,000/- to

Rs.50,000/-, 'loss of amenities' from Rs.1,00,000/- to

Rs.50,000/-.

Since the income of the claimant has been

enhanced from Rs.6,000/- to Rs.9,500/-, the claimant

he is entitled for 'loss of income during laid-up period'

at Rs.57,000/- (Rs.9,500*6).

In respect of 'future medical expenses' is

concerned, even though the doctor has deposed that

it requires Rs.6.00 lakhs for disarticulation prosthesis

and Rs.1,50,000/- for surgery, even today the

claimant has not produced any document to show that

he has undergone any surgery. Under these

circumstances the compensation awarded by the

Tribunal for 'future medical expenses' is reduced from

Rs.2,50,000/- to Rs.1,50,000/-.

Since the claimant was aged about 18 years,

compensation towards 'loss of marriage prospects' has

to be awarded at Rs.50,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

12. 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 1,50,000 50,000 Medical & incidental 6,86,526 6,86,526 expenses Loss of income during 36,000 57,000 laid up period Loss of amenities 1,00,000 50,000

Loss of future income 11,66,400 25,85,520 Future medical expenses 2,50,000 1,50,000 Total 23,88,926 35,79,046

13. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.35,79,046/- as against Rs.23,88,926/- awarded

by the Tribunal.

The Corporation is directed to deposit the

compensation amount along with interest @ 6% p.a.

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

of realization, within a period of six weeks from the

date of receipt of copy of this judgment

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-