Karnataka High Court

Srikanth vs The Managing Director on 2 March, 2022

Bench: Pradeep Singh Yerur

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF MARCH, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.6570 OF 2019 (MV)

BETWEEN:
SRIKANTH
S/O.VENKATESH
AGED ABOUT 24 YEARS
R/O.BHUMISHETTIHALLI VILLAGE
CHOWDAREDDY PALYA
GUDIMARLAHALLI POST
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563 146
                                         ... APPELLANT
 (BY SRI VIJAYA KUMAR T., ADVOCATE)

AND:
       THE MANAGING DIRECTOR
       BMTC
       SHANTHINAGAR
       BENGALURU - 560 027
       K.H.DOUBLE ROAD
       BENGALURU - 27                 . RESPONDENT

  (BY SRI D.VIJAYA KUMAR, ADVOCATE)
                        ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLE
ACT,1988 AGAINST THE JUDGMENT AND AWARD DATED
10.04.2017 PASSED IN MVC NO.5535/2015 ON THE FILE
OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL
CAUSES & MEMBER, MACT, BENGALURU, ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.

     THIS APPEAL COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                               2


                           JUDGMENT

This is an appeal preferred by the claimant being

aggrieved by the judgment and award dated 10.04.2017

passed in MVC No. 5535/2015 before the XIII Addl. Judge,

Court of Small Causes & Member, MACT, Bengaluru,

(hereinafter referred to as 'the Tribunal') and seeking for an

enhancement of the compensation.

2. Heard learned counsel Mr. Vijaya Kumar.T,

appearing on behalf of appellant and learned counsel Mr. D.

Vijaya Kumar.D, appearing on behalf of respondent -

Corporation.

3. Though this matter is listed for admission, with

the consent of both the learned counsel, the same is taken

up for final disposal.

4. Brief Facts:

On 22.11.2015 at about 06.30 pm when the claimant

was a pillion rider in Honda Activa two wheeler bearing

registration No. KA-43 Q-1732 which was ridden one

Basavaraj and while they reached Razak Palya Masjid,

Razak Palya Main Road, Bangalore at that time a BMTC bus

bearing registration No. KA-01 FA-0881 driven by its driver

in a high speed and rash and negligent manner so as to

endanger human life, safety and property dashed against

the Honda Activa two wheeler. Due to which, claimant fell

down and sustained grievous injuries.

5. In view of accident having occurred between

the two vehicles stated above, the jurisdictional police

registered a case in Cr. No.122/2015 against the driver of

BMTC bus. It is stated that due to the accident the

claimant suffered injuries, thereby causing permanent

disablement resulting in loss of future earning capacity. It

is further stated that claimant was aged 20 years, working

as a Car Parking employee, and was earning Rs.500/- per

day. It is further stated that claimant has spent more than

Rs.3,50,000/- towards medical expenses and other

incidental expenses in treatment of the injury suffered by

him in the accident. It is further stated that prior to the

date of occurrence of accident the claimant was hale and

healthy and now due to the injuries suffered in the accident

he is unable to do the same work as he was doing prior to

the occurrence of the accident. Hence, he sought for

compensation by filing the claim petition.

6. On service of notice, the respondent - BMTC

appeared and filed its statement of objections, denying the

claim made by the claimant, inter alia, contending that the

bus was proceeding cautiously and slowly on the left side of

the road while the Motor cycle came from the opposite

direction in a rash and negligent manner hit the front

bumper portion of the bus. Hence, sought for dismissal of

the claim petition.

7 On the basis of the pleading the Tribunal

framed relevant issues.

8 In order to prove and establish his case, the

claimant got examined himself as PW1 and got marked

Ex.P1 to P15. He also got examined a Doctor as PW2-

Doctor and got marked Ex.P16 to P18. The respondent on

the other hand examined its driver as RW1 and did not

produce any document.

9. After hearing both sides and providing sufficient

opportunity to both parties, the Tribunal awarded

compensation in a sum of Rs.4,74,000/- with interest at the

rate of 8% per annum from the date of claim petition till

the date of payment. The Tribunal fixed liability as against

respondent and directed to pay the compensation.

10. Being aggrieved by the Judgment and award of

the Tribunal, the claimant has preferred this appeal seeking

enhancement.

11. Learned counsel for the claimant contends that

the impugned order passed by the Tribunal is erroneous

and Tribunal has awarded a meager and inadequate

compensation resulting in mis-carriage of justice to the

claimant. He further contends that Tribunal has committed

a serious error in awarding only paltry sum and the same

requires to be enhanced. He further contends that the

Tribunal has failed to assess proper income of the claimant

to arrive at a compensation which ought to be just

compensation.

12. Learned counsel for claimant further contends

that the Tribunal has committed an error in not awarding

suitable compensation towards expenditure meted out for

treatment, medical expenses and other miscellaneous

expenses expended by the claimant. He further contends

that the Tribunal has assessed the income at Rs.7,000/- per

month and failed to take into consideration that the

claimant is working as car parking attendant and earning a

sum of Rs.500/- per day at Kempegowda International

Airport. The Tribunal has grossly erred in assessing meager

amount of Rs.7,000/- per month as income of the claimant

which requires to be enhanced.

13. Learned counsel for claimant further contends

that though claimant got examined doctor as PW2, who

deposed that the disability suffered by the claimant is to an

extent of 33% to the right lower limb and 10.97% to the

whole body, whereas the Tribunal has assessed the

disability to an extent of 10% overlooking the expert

opinion, which is erroneous in law and the same cannot be

sustained and requires to be interfered by this Court. He

further contends that the interest awarded by the Tribunal

is on the lower side and the same requires to be enhanced.

Hence, on those grounds he seeks to allow the appeal and

enhance the compensation.

14. Per contra, learned counsel Mr.D.Vijaya Kumar,

for respondent - BMTC vehemently contends that judgment

and award passed by the Tribunal is reasoned and

considered order and the Tribunal has considered all

aspects of income, multiplier, loss of future income so also

pain and sufferings and accordingly awarded just and

reasonable compensation and the same does not warrant

interference by this Court.

15. Learned counsel for respondent - BMTC further

contends that claimant has not come before Court with

clean hands and fabricated medical records and also he has

not produced any material documents with regard to proof

of income, so also, with regard to proof of his age.

Therefore, Tribunal has rightly assessed income based on

the documents produced, which does not call for

interference. He further contends that the interest awarded

by the Tribunal is on the higher side and the same requires

to be reduced. Therefore, there is no error in the judgment

and award and conclusion arrived at by the Tribunal.

16. Having heard the learned counsel for appellant

and respondent - BMTC the points that arise for

consideration are:

"(1) Whether the Tribunal has awarded meager compensation?

(2) Whether the claimant is entitled for enhancement?"

17. On careful examination of entire material

documents including original documents and on the basis of

the elaborate submission made by both the learned

counsel, I am of the opinion that claimant is entitled to

marginal indulgence for enhancement of compensation for

the reasons mentioned herein below.

18. It is not in dispute that on 22.11.2015 at about

06.30 pm accident occurred between two vehicles, namely,

Honda Activa two wheeler and BMTC bus. In order to

establish and prove the said fact PW1 has produced Ex.P1

to P6, which are Police records, which is pursuant to the

investigation and enquiry conducted by the Police. These

documents are not seriously disputed or challenged by the

respondent. These Police records having culminated in the

criminal case and since the same has not been challenged

by the respondent or by its driver, same will have to be

accepted on its evidentiary value, it could be safely

concluded that the driver of the BMTC bus is responsible for

occurrence of the accident and he was rash and negligent,

thereby the liability is correctly attributed to the driver of

the BMTC bus.

19. Now, in order to assess the age, avocation and

income of the claimant this Court will have to peruse the

material documents produced by the claimant. Though

claimant has stated that he was working as a car parking

attendant at Kempegowda International Airport and earning

Rs.500/- per day, he has not produced any piece of

document to show that he was working and earning

Rs.500/- per day. In view of non production of any

document to the effect, the Tribunal has assessed the

income of the claimant at Rs.7,000/- per month for

computation of compensation.

20. It is not in dispute that the accident has

occurred in the year 2015 and the notional income

prescribed by the Legal Services Authority Chart for the

accident of the year 2015 is Rs.9,000/- per month. In view

of the same, I am of the opinion that the Tribunal has erred

in assessing the income of the claimant at Rs.7,000/- per

month. In a case where claimant has not produced any

piece of evidence with regard to his profession and income

the Court will have to do guess work in assessing the

income of the claimant. While doing the guess work, the

Court will have to adopt standard methodology and to

assess the notional income the Courts will also have to

follow the Legal Services Authority Chart to maintain the

standard income plan. Accordingly, I am of the opinion

that for the accident of the year 2015 the notional income

prescribed as per the said chart is Rs.9,000/- and in the

present case on hand, the notional income would be taken

as Rs.9,000/- as against Rs.7,000/- taken by the Tribunal.

21. The claimant has pleaded in his claim petition

and also adduced the evidence that he is aged about 20

years as on the date of accident. However, claimant

himself has produced Ex.P8, which is Adhar Card and relied

on the same for the purpose of age. The Tribunal has

correctly assessed the aged based on Ex.P8 - Adhar card

and has taken the correct multiplier of 18 as per the

judgment of the Apex Court in the case of Sarla Verma

(Smt) and others vs. Delhi Transport Corporation

and another, reported in (2009) 6 Supreme Court

Cases 121, which needs no interference by this Court.

22. The claimant has got examined treated doctor

as PW2, who has trended the claimant and given detailed

evidence and also he has been subjected to cross

examination. Based on the evaluation, PW2 assessed the

disability of the claimant at 33% to the right lower limb and

10.97% to the whole body. On careful examination of

medical documents produced including discharge summary

and evidence of the doctor as PW2, I do not find any

irregularity or legal infirmity in the expert opinion

expressed by the doctor. The Tribunal, however, has taken

disability as assessed by the doctor at 33% and has divided

the same by 1/3 to arrive at 10% to the whole body. I am

of the opinion that this assessment of the disability of the

claimant at 10% by the Tribunal is not correct as the

Tribunal cannot put itself into the arm chair of the expert to

render expert opinion. Hence in the present case the

Tribunal ought to have awarded disability at 11% to the

whole body as against 10%.

23. In view of the above the claimant is entitle for

the compensation in a sum of Rs.2,13,840/- (Rs.9,000/-

X 12 X 18 X 11/100) as against Rs.1,51,200/- awarded by

the Tribunal under the head loss of future earning capacity

due to disability.

24. The Tribunal has awarded a sum of Rs.40,000/-

under the head pain and suffering. Considering the facts

and circumstances of the case, I deem it proper to increase

it by another sum of Rs.10,000/- making it totally

Rs.50,000/- under this head.

25. For the loss of laid up period the Tribunal has

awarded a sum of Rs.28,000/-. In view of the fact that this

Court has enhanced the income of the claimant to

Rs.9,000/- per month a sum of Rs.36,000/- (Rs.9,000/- X

4) is to be awarded to the claimant as against Rs.28,000/-

awarded by the Tribunal.

26. With regard to medical expenses the Tribunal

has awarded a sum of Rs.1,41,500/-, which is on the

basis of the medical bills and prescriptions and also invoices

produced by the claimant at Ex.P10 to P14, which is as per

the actual bills produced and hence the same does not call

for interference.

27. Towards diet and conveyance, the Tribunal has

awarded a sum of Rs.20,000/-. In view of the facts of the

present case, I am of the opinion that it is proper to

increase the said sum by another sum of Rs.10,000/-

making it totally Rs.30,000/- to the claimant, under this

head.

28. The Tribunal has awarded a sum of

Rs.40,000/- towards loss of amenities to the claimant. No

interference is called for to enhance any compensation

under this head to the claimant.

29. The Tribunal has awarded a sum of

Rs. 10,000/- towards loss of future medical expenses

same is not disturbed.

30. Towards attendant charges during

hospitalization of the claimant, the Tribunal has taken into

consideration the fact that the claimant was inpatient for a

period of 86 days, has arrived at Rs.500/- per day and

awarded a sum of Rs.43,000/-, which needs no

interference by this Court.

31. In view of the discussions made above, the

claimant would be entitled for the enhanced

compensation as mentioned in the table below.

   Sl.No.             Heads           Amount (Rs.)
     1.   Loss of future income        2,13,840=00
          (Rs.9,000/- X 12 X 18 X
          11/100)
     2.   Pain and suffering             50,000=00
     3.   Loss of laid up period         36,000=00
     4.   Medical expenses             1,41,500=00
     5.   Towards        diet     and    30,000=00
          conveyance
     6.   Loss of amenities              40,000=00
     7.   Loss of future medical         10,000=00


            expenses
     8.     Attendant charges          during        43,000=00
            the hospitalization        period
            (Rs.500/- X 86)
                                       TOTAL: 5,64,340=00

32. In view of the discussions made above, I pass

the following:

ORDER

i) The appeal is partly allowed.;

ii) Consequently, the judgment and award dated

10.04.2017 passed in MVC No. 5535/2015

before the XIII Addl. Judge, Court of Small

Causes & Member, MACT, Bengaluru, is

modified.;

iii) The compensation awarded by the Tribunal in

a sum of Rs.4,74,000/- is enhanced to

Rs.5,64,340/- (Rupees five lakhs sixty four

thousand three hundred & forty only), with

8% interest from the date of claim petition till

its realization.;

iv) Since there is a delay of 748 days in

preferring the appeal by the claimant, he is

not entitled to interest on the enhanced

compensation for the said period as per the

order dated 02.03.2022;

v) All other conditions imposed by the Tribunal

being left intact.;

vi) The insurer shall pay the differential enhanced

compensation amount within a period of six

weeks from the date of receipt of a copy of

this judgment.