Karnataka High Court

Sri Vishwas Mokashi vs M/S The Managing Director on 30 May, 2022

Bench: B.Veerappa, K S Hemalekha

                         1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MAY, 2022

                      PRESENT

        THE HON'BLE MR. JUSTICE B. VEERAPPA

                        AND

       THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

  MISCELLANEOUS FIRST APPEAL No.3830/2016 (MV-I)


BETWEEN:

SRI VISHWAS MOKASHI,
S/O VIJAYA KUMAR,
AGED ABOUT 28 YEARS,
R/AT NO.259/4,
2ND MAIN,
ANJENEYA TEMPLE ROAD,
2ND BLOCK,
TYAGARAJANAGAR,
BANGALORE - 28.
                                        ...APPELLANT
(BY SRI H.B. SOMAPUR, ADVOCATE)

AND:

M/S THE MANAGING DIRECTOR,
BMTC. SAARIGE BHAVAN,
CENTRAL OFFICE,
SHANTHINAGAR,
K.H. ROAD, BANGALORE - 27.
                                      ...RESPONDENT
(BY SRI F.S. DABALI, ADVOCATE)
                         ****
                            2



     THIS   MISCELLANEOUS        FIRST   APPEAL      IS    FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.03.2016, PASSED IN
MVC NO.569/2015, ON THE FILE OF THE II ADDITIONAL
SMALL   CAUSE    JUDGE,   AND     XXVIKK      ACMM,        MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.


     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR HEARING, THIS DAY, B.VEERAPPA J., DELIVERED
THE FOLLOWING:


                        JUDGMENT

The injured/claimant filed the present

miscellaneous first appeal for enhancement of

compensation against the impugned judgment and

award dated 24/03/2016, passed in MVC.No.569/2015

on the file of the Motor Accident Claims Tribunal,

Bengaluru (SCCH-13) ("the Tribunal" for short)

awarding total compensation of Rs.2,73,513/- with

interest at 6% per annum from the date of the

petition till the date of realization.

2. The claimant has filed the claim petition

under the provisions of Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of

Rs.25,00,000/- on account of injuries sustained by

him in the motor accident that occurred on

16/01/2015 at about 9.45 a.m., when he was

proceeding in BMTC bus bearing registration No.KA-

01/F-4442 near Hunasemara bus stop, Kanakapura

Main Road, Bengaluru. At that time, the driver of the

BMTC bus, without ensuring the passenger as well as

the signal of the conductor of the bus, drove the bus

suddenly at high speed and in a rash and negligent

manner endangering human life. Due to the impact of

the accident, the injured/claimant fell down and

sustained grievous injuries and was shifted to the

hospital wherein he spent huge amount for treatment.

The claimant suffered permanent disability due to the

accident. Therefore, he sought to allow the claim

petition.

3. The respondent/BMTC filed written

statement denying the averments made in the claim

petition and disputed the rash and negligent driving of

the BMTC driver and contended that the accident

occurred due to the negligence on the part of the

claimant and admitted that the offending vehicle in

question belonged to the Corporation and disputed the

physical impairment on account of the injuries

sustained by the injured/claimant in the motor vehicle

accident. The respondent has denied the age,

income, reduction of working capacity and the amount

spent towards medical treatment by the petitioner and

contended that the claim is exorbitant. Therefore,

sought to dismiss the claim petition.

4. Based on the aforesaid pleadings, the

Tribunal framed the following issues:

(i) Whether the petitioner proves that on 16/01/2015 at about 9.45 a.m., when he was proceeding in BMTC bearing No.KA 01/F 4442, near Hunasemara Bus Stop, Kanakapura Main Road, Bengaluru, at that time, the said bus without ensuring the passenger as well as the signal of the conductor of the bus, drove the bus suddenly at high speed and in a rash or negligent manner so as to endanger human life, due to the impact, the petitioner fell down and sustained grievous injuries?

(ii) whether the petitioner is entitled for the compensation? If so, what amount and from whom?

(iii) What order?

5. In order to substantiate the claim petition,

the claimant examined himself as PW.1 and doctor as

PW.2 and got marked seventeen documents as Exs.P-

1 to P-17. The driver of the bus examined himself as

RW.1 and got marked eight documents as Exs.R-1 to

R-8.

6. The Tribunal, based on the pleadings,

evidence and material on record held that on

16/01/2015 at about 9.45 a.m., when the petitioner

was proceeding in BMTC bus bearing No.KA 01/F

4442, near Hunasemara Bus Stop, Kanakapura Main

Road, Bengaluru, the accident occurred when the

driver of the bus suddenly drove the bus in a rash and

negligent manner at a high speed endangering human

life without even ensuring the passenger as well as

the signal of the conductor. As a result, the petitioner

fell down and sustained grievous injuries as stated in

Ex.P-6 wound certificate and thus held that the

claimant is entitled for compensation. Accordingly, the

Tribunal awarded total compensation of Rs.2,73,513/-

with interest at 6% per annum from the date of

petition till the date of realization. Aggrieved by the

said compensation, the present appeal is preferred by

the appellant/claimant for enhancement of

compensation.

7. The respondent/insurance company has not

filed any appeal against the impugned judgment and

award passed by the Tribunal.

8. We have heard learned counsel for the

parties.

9. Sri H.B.Somapur, learned counsel for the

appellant/claimant contended with vehemence that

the impugned judgment and award passed by the

Tribunal awarding only Rs.2,73,513/- with 6% interest

is on the lower side and disproportionate to the

grievous injuries sustained by the claimant as per

Ex.P-6 wound certificate issued by the doctor who

treated the claimant. He would further contend that

the Tribunal erred in taking the monthly income at

Rs.7,000/- ignoring the fact that he was earning

Rs.15,000/- per month and considered the disability

only at 10% as against 20% stated on oath by the

doctor PW.2. He further contended that in respect of

the other heads, the compensation awarded by the

Tribunal is on the lower side and the same requires for

enhancement. Hence, he sought for allowing the

miscellaneous first appeal.

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

respondent/insurance company, while justifying the

award passed by the Tribunal contended that, neither

the claimant produced any material nor examined the

owner under whom he has worked to show that he

was earning Rs.15,000/- per month and hence, the

Tribunal was justified in taking the income of the

claimant at Rs.7,000/- per month. He would further

contend that the doctor PW.2 who examined the

claimant has stated that the whole body permanent

disability was only 20% as per Ex.P-15 disability

certificate and in Ex.P-7, the discharge summary, he

has specifically stated that the injured/claimant has

recovered well and is being discharged in a stable

condition with GCS - 15/15, no headache/vomiting

and advice. Thereby, the compensation awarded by

the Tribunal is just and proper and therefore, sought

to dismiss the miscellaneous first appeal.

11. In view of the aforesaid rival contentions

urged by the learned counsel for the parties, the only

point that arises for our consideration in the present

appeal is:

"Whether the claimant has made out a case for enhancement of compensation in the facts and circumstances of the case?"

12. It is not in dispute that unfortunate

accident occurred on 16/01/2015 at about 9.45 a.m.

due to the rash and negligent driving of the driver of

the bus, thereby the claimant sustained the following

injuries:

"Right frontal and parietal contusions with acute subdural hematoma with traumatic subarchnoid heamorrhage."

The same is evidenced by Ex.P-1, FIR and Ex.P-

5, charge sheet filed by the jurisdictional police

against the driver of the bus, thereby the negligence

on the part of the bus driver is proved. Though the

claimant is examined as PW.1 and stated on oath that

he was earning Rs.15,000/- per month, but he has not

produced any document or examined the employer

under whom he was working. In the absence of the

same, the Tribunal ought to have taken the notional

income fixed by the Karnataka Legal Services

Authority as Rs.9,000/- per month instead of

Rs.7,000/-. If we take the income of the claimant as

Rs.9,000/- and taking into consideration his age as 27

years, the multiplier would be 17 and 10% disability

as stated by the doctor, the total amount of

compensation towards loss of future earning is

Rs.1,83,600/- (9,000 x 12 x 17 x 10%). The Tribunal,

while awarding compensation towards injury, pain

and suffering has awarded lesser amount and the

same requires further enhancement. Considering

the age of the claimant as 27 years as on the

date of the accident and due to the fracture

sustained by him as per Ex.P-1 FIR, Ex.P-5 charge

sheet, Ex.P-6 wound certificate and Ex.P-15 disability

certificate, we are of the considered opinion that the

claimant has made out a case for further

enhancement. Accordingly, the point framed is

answered in the affirmative.

13. After re-assessing the entire material on

record, the claimant is entitled to just and proper

compensation as under:

Sl.No.                       Partiulars               Amount(Rs.)
     1    Injury, pain & sufferings                   1,00,000.00
     2    Loss of earning during laid up period        27,000.00
     3    Loss of future earnings                     1,83,600.00
     4    Medical expenses                             54,713.00
     5    Loss of amenities                            50,000.00
     6    Conveyance,        Nourishment   food   &    20,000.00
          attendant charges
     7                        TOTAL                   4,35,313.00

The injured/claimant is entitled for enhanced

compensation of Rs.4,35,313/- as against

Rs.2,73,513/- awarded by the Tribunal. The claimant

is entitled for enhanced compensation of

Rs.1,61,800/-.

14. In the result, we pass the following:

ORDER

(i) The Miscellaneous First Appeal is allowed in part.

(ii) The impugned judgment and award passed by

the Tribunal is hereby modified. The

appellants/claimants are entitled for total

compensation of Rs.4,35,313/- as against