Karnataka High Court
Sri Santhosh K S/O Late ... vs The United India Insurance ... on 15 June, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO.5609 OF 2012 (MV)
BETWEEN:
SRI. SANTHOSH K.
S/O LATE KRISHNAMURTHY
AGED ABOUT 17 YEARS
RESIDING AT NO.228,
VST ROAD, LINGARAJAPURA,
BENGALURU-84.
SINCE THE PETITIONER IS MINOR
REPRESENTED BY GRAND MOTHER
AND NATURAL GUARDIAN
SMT. GNANAMANI
W/O LATE KRISHNAMURTHY
AGED ABOUT 62 YEARS
RESIDING AT NO.228,
VST ROAD, LINGARAJAPURA,
BENGALURU-84.
... APPELLANT
(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE)
AND:
1. THE UNITED INDIA INSURANCE
COMPANY LIMITED
BRANCH OFFICE
NO.4, LAKSHMI COMPLEX,
OPP. TO VANIVILAS HOSPITAL,
K.R. FORT ROAD,
BENGALURU-560 002.
2
2. THE MANAGING DIRECTOR
BMTC GENERAL OFFICE
SHANTHINAGAR,
K.H. ROAD,
BENGALURU-27.
... RESPONDENTS
(BY SRI. K.N. SRINIVASA, ADVOCATE FOR R1;
SRI. K. NAGARAJ, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 01ST AUGUST, 2011 PASSED IN
M.V.C NO.5113 OF 2010 ON THE FILE OF THE MEMBER, MACT,
VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGLAURU CITY, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel appearing for the appellant and
learned counsel appearing for respondent No.1-Insurance
Company.
2. The challenge is to the judgment and award dated 01st
August, 2011 passed in M.V.C No.5113 of 2010 by the Member,
Motor Accident Claims Tribunal, VIII Additional Judge, Court of
Small Causes, Benglauru City (for short, hereinafter referred to
as 'Tribunal'). In terms of the judgment and award dated 01st
August, 2011, the Tribunal has passed an award for
Rs.1,21,000/- in favour of the claimant as against claim of
Rs.5,00,000/-.
3. The facts are as under:
The claimant sustained injury on his right foot in the
Motor vehicle accident that had taken place on 20th July, 2010.
The contention of the claimant is that, he was an inmate in
BMTC Bus; and to allow passengers to deboard from the bus, he
also got down from the bus and again while he was boarding
the bus, the driver moved the bus without indication, the
claimant fell from the door steps of the bus and the left wheel
of the bus ran over the foot of the claimant.
4. The claimant was aged 16 years at the time of
accident. The claim petition was filed on his behalf by his
mother and mother led evidence. After considering the
evidence on record, the Tribunal has come to the conclusion
that the claimant is also responsible for the accident to the
extent of 40% and driver of the BMTC Bus to an extent of 60%.
By awarding compensation of Rs.1,21,000/-, the Tribunal has
apportioned the liability under aforementioned ratio of 40:60
and directed the respondents to pay the compensation of
Rs.72,600/- along with interest at the rate of 6% per annum.
The Tribunal has quantified the award compensation as under:
Head Amount
(Rs.)
Pain & agony 30,000-00
Medical expenses 51,000-00
Loss of education 10,000-00
Loss of amenities and unhappiness 30,000-00
Total 1,21,000-00
5. Learned counsel appearing for appellant would contend
that the finding of Tribunal apportioning 40% negligence on the
part of the claimant is without any evidence. He would submit
that the driver of the BMTC Bus was charge-sheeted and no
charge-sheet as against the claimant. The evidence on record
would indicate that there is negligence on the part of the BMTC
Bus Driver. He would further contend that the compensation
awarded under the head Pain and agony at Rs.30,000/- is on
the lower side, and also compensation awarded under the head
Loss of Amenities at Rs.30,000/- is also on the lower side. He
would further contend that the Doctor has been examined in the
case and the Doctor has opined about the disability suffered by
the claimant in the accident. It is his further case that the
claimant was an inpatient for 3 days and he has undergone split
skin-grafting and as such, compensation should be on higher
side.
6. Learned counsel appearing for the respondent No.1
would contend that the finding recorded by the Tribunal
requires no modification. The Tribunal has awarded just
compensation. He would further contend that the claimant has
not examined himself to substantiate the evidence. It is further
case that the claimant, being the student, is not entitled to any
compensation under the head loss of earnings.
7. This Court has considered the rival contentions and
there is no dispute over the fact that the charge-sheet is filed
against driver of the BMTC Bus and no charge-sheet against the
claimant. The evidence would reveal that the driver of the
BMTC bus was negligent in driving. It is noted that the claimant
was minor, as such, the guardian of the claimant, namely
mother, has been examined. This Court does not find fault in
examining the mother on behalf of the claimant. Since the
charge-sheet is filed against the driver of the BMTC Bus and no
charge-sheet as against the claimant, this Court does not find
any infirmity in the evidence of the claimant to hold that the
driver of the BMTC Bus is negligent insofar as accident is
concerned. Under these circumstances, the finding of the
Tribunal that the claimant is responsible for accident to an
extent of 40% is without any basis.
8. The evidence led by the Doctor would indicate that
claimant has suffered 26% disability to the right lower limb and
9% to the whole body. The Tribunal has failed to consider
effect of injuries on the future prospects of the claimant on
account of the accident. This Court is of the opinion that the
notional income has to be taken into consideration to calculate
the loss of future prospects. The notional income for the
accidents of the year 2010 would be Rs.5,500/- per month.
Considering the age of the claimant, the multiplier applicable
would be 18; and 9% disability is to be taken to calculate the
future loss of income. Thus compensation towards loss of
future income would be Rs.1,06,920/- (Rs.5,500/-x12x18x9%).
9. This Court has also taken into account the evidence of
the Doctor. Considering the disability suffered by the claimant
and also surgical procedure undergone by the claimant, this
Court is of the opinion that the compensation awarded under
the head Pain and agony is just and proper considering the
accident is of the year 2010. The award of Rs.30,000/- under
the head loss of amenities is also just and proper. Thus, the
compensation awarded under other heads are not disturbed.
10. Accordingly, claimant is entitled to compensation as
under :-
Head Amount
(Rs.)
Pain & agony 30,000-00
Medical expenses 51,000-00
Loss of education 10,000-00
Loss of amenities and unhappiness 30,000-00
Loss of future earning capacity 1,06,920-00
Total 2,27,920-00
Hence, the following :-
ORDER
i) Appeal is allowed in-part;
ii) The impugned judgment and award dated 01st
August, 2011 passed in M.V.C No.5113 of 2010
by the Member, Motor Accident Claims Tribunal,
VIII Additional Judge, Court of Small Causes,
Benglauru City is modified.
iii) The respondents 1 and 2 shall jointly pay the
entire compensation of Rs.2,27,920/- payable to
the claimant along with interest at the rate of 6%
per annum within a period of four months from
the date of receipt of certified copy of this
judgment.
iv) Payment, if any made, shall be adjusted.
Sd/-
JUDGE
ARK
