Karnataka High Court
Mangala B M vs The Managing Director on 14 December, 2023
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NC: 2023:KHC:45725-DB
MFA No.136/2022
C/W MFA No.4025/2020
MFA No.4174/ 2020
MFA No.235/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No.136/2022 (MV-D)
C/w
MISCELLANEOUS FIRST APPEAL No.4025/2020 (MV-D)
MISCELLANEOUS FIRST APPEAL No.4174/2020 (MV-I)
MISCELLANEOUS FIRST APPEAL No.235/2022 (MV-I)
MFA No.136/2022:
BETWEEN:
1. SMT. MANGALA B. M.,
W/O NAGENDRA C.,
AGED ABOUT 28 YEARS,
R/AT 137/3, PONNI APARTMENT,
3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA, BENGALURU 560 097.
Digitally signed
by PRABHU 2. SRI NAGENDRA,
KUMARA S/O CHANDRASHEKAR,
NAIKA AGED ABOUT 36 YEARS,
Location: High
Court of R/AT NO 137/3, PONNI APARTMENT,
Karnataka 3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA, BENGALURU 560097. ...APPELLANTS
(BY SRI ANANTHARAMA C., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
KSRTC, DOUBLE ROAD,
SHANTHINAGAR,
BENGALURU 560 026 ....RESPONDENT
(BY SRI. RAJASHEKAR S., ADVOCATE)
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MFA No.136/2022
C/W MFA No.4025/2020
MFA No.4174/ 2020
MFA No.235/2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2020 PASSED IN MVC NO. 5358/2017 ON THE FILE
OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA No.4025/2020:
BETWEEN:
1. THE MANAGING DIRECTOR,
KSRTC, DOUBLE ROAD,
SHANTHINAGAR,
BENGALURU 560 026
REP. BY CHIEF LAW OFFICER ...APPELLANT
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND:
1. SMT. MANGALA B. M.,
W/O NAGENDRA C.,
AGED ABOUT 28 YEARS,
R/AT 137/3, PONNI APARTMENT,
3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA,
BENGALURU 560097.
2. SRI NAGENDRA,
S/O CHANDRASHEKAR,
AGED ABOUT 36 YEARS,
R/AT NO 137/3,
PONNI APARTMENT,
3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA,
BENGALURU 560097.
...RESPONDENTS
(BY SRI. ANANTHARAMA C., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2020 PASSED IN MVC NO. 5358/2017 ON THE FILE
OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), AWARDING
COMPENSATION OF Rs.2,50,000/- WITH INTEREST AT 9 PERCENT
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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MFA No.136/2022
C/W MFA No.4025/2020
MFA No.4174/ 2020
MFA No.235/2022
MFA No.4174/2020:
BETWEEN:
1. THE MANAGING DIRECTOR,
KSRTC, DOUBLE ROAD,
SHANTHINAGAR,
BENGALURU 560027,
REP. BY CHIEF LAW OFFICER
SRI N. NAGARAJU ...APPELLANT
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND:
1. SMT. MANGALA B. M.,
W/O NAGENDRA C.,
AGED ABOUT 28 YEARS,
R/AT 137/3, PONNI APARTMENT,
3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA,
BENGALURU 560 097 ...RESPONDENT
(BY SRI. ANANTHARAMA C., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2020 PASSED IN MVC NO. 5357/2017 ON THE FILE
OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), AWARDING
COMPENSATION OF Rs.11,74,500/- WITH INTEREST AT THE RATE OF
9 PERCENT P.A. (EXCLUDING FUTURE MEDICAL EXPENSES OF Rs.
30,000/-) FROM THE DATE OF PETITION TILL REALIZATION.
MFA No.235/2022:
BETWEEN:
1. MANGALA B. M.,
W/O NAGENDRA C.,
AGED ABOUT 28 YEARS,
R/AT 137/3, PONNI APARTMENT,
3RD MAIN, GRUHALAKSHMI LAYOUT,
KAMALANAGARA, BENGALURU 560097.
...APPELLANT
(BY SRI ANANTHARAMA C., ADVOCATE)
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MFA No.136/2022
C/W MFA No.4025/2020
MFA No.4174/ 2020
MFA No.235/2022
AND:
1. THE MANAGING DIRECTOR,
KSRTC, DOUBLE ROAD,
SHANTHINAGAR,
BENGALURU 560 026,
...RESPONDENT
(BY SRI RAJASHEKAR S., ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2020 PASSED IN MVC NO. 5357/2017 ON THE FILE
OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
FURTHER HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
The above appeals are filed challenging the common
judgment and awards dated 12.02.2020 in MVC No.5357/2017
and MVC No.5358/2017 passed by the Court of Small Causes
and MACT, Bengaluru (SCCH-16). The details of appellant and
claimant and against which award they have filed the appeals
are as per the table below:
MFA No.136/2022 Claimants/ MVC No.5358/2017
Mangala B M
& Nagendra
MFA No.4025/2020 KSRTC MVC No.5358/2017
MFA No.4174/2020 KSRTC MVC No.5357/2017
MFA No.235/2022 Claimant/ MVC No.5357/2017
Mangala B M
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2. Mangala B.M. was the sole claimant in MVC
No.5357/2017. Mangala B. M. and her husband-Nagendra
were claimants in MVC No.5358/2017.
3. On 24.12.2016 at 8.50 a.m., when the claimants in
MVC No.5358/2017 were traveling on motorcycle bearing
No.KA-17-EG-2451 near Kamalammana Gundi within the limits
of Malleshwaram Traffic Police Station, the KSRTC Bus bearing
No.KA-06-F-679 hit the said motor cycle and caused the
accident. In the accident, Smt. Mangala B. M., suffered
grievous injuries. At that time, she was pregnant and she
suffered intra-uterine death of fetus in spontaneous abortion.
She filed MVC No.5357/2017 claiming compensation of Rs.40
lakhs for the personal injuries suffered by her. Herself and her
husband filed MVC No.5358/2017 claiming compensation of
Rs.30 lakhs for the fetus' death. They contended that the
accident occurred due to actionable negligence on the part of
the driver of the bus and due to loss of their unborn child, they
have suffered damages.
4. So far as MVC No.5357/2017, the claimant
contended that she suffered grievous injuries, hospitalized for
51 days in Fortis hospital and she suffered permanent physical
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disability and consequently loss of future earnings. The
claimants contended that the respondent being the owner of
the bus is liable to compensate the damages.
5. The respondent contested the petition denying the
actionable negligence on the part of the driver of the bus. It
was contended that the accident occurred due to negligence of
the rider of the motor cycle itself. Further, respondent denied
the fetus' death, the injuries suffered by claimant - Mangala,
her permanent physical disability, her age, occupation, income
and its liability to pay the compensation.
6. The Tribunal on consolidating both the cases
recorded the common evidence. In support of their claim on
behalf of claimants, PWs.1 to 5 were examined and Exs.P1 to
P36 were marked. Driver of the offending bus was examined
as RW.1 and on behalf of respondent, Ex.R1 - the certified copy
of the judgment in criminal case regarding the acquittal of
RW.1 was produced.
7. The Tribunal on hearing both side by impugned
award held that the accident occurred due to actionable
negligence on the part of the driver of the bus. The Tribunal
further held that the medical evidence adduced by the claimant
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proved that Mangala was pregnant and due to the accident,
there was abortion/fetus death. The Tribunal relying on the
judgment of the Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Kusuma and Another1
awarded compensation of Rs.2,50,000/- in MVC No.5358/2017
for the fetal death.
8. In MVC No.5357/2017, the Tribunal relying on the
oral evidence, medical documents produced by the claimant
and her occupation etc., assessed her permanent physical
disability at 24% to the whole body and awarded compensation
of Rs.11,74,305/- rounded off to Rs.11,74,500/- on different
heads as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Pain and sufferings Rs.1,00,000/-
2. Attendant charges, extra Rs. 52,000/-
nutritious food and
conveyance expenses
3. Loss of income during laid- Rs. 17,500/-
up period
4. Medical expenses Rs.6,64,805/-
5. Loss of future income due Nil
to permanent disability
6. Physical disablement Rs.2,50,000/-
7. Loss of future amenities and Rs. 60,000/-
happiness
8. Future medical expenses Rs. 30,000/-
TOTAL Rs.11,74,305/-
ROUNDED OFF Rs.11,74,500/-
(2011) 13 SCC 306
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In both the cases, interest at 9% p.a. was awarded on the
compensation from the date of petition till realization.
9. Both the claimants and KSRTC have preferred the
above appeals. The claimants challenged the finding of the
Tribunal with regard to assessment of disability of the injured
and the compensation awarded on all the heads. Similarly,
KSRTC challenges the quantum of compensation awarded in
both the cases.
Submissions of Sri. Rajashekar S., learned counsel for KSRTC:
10(i) The medical records show that the fetus was below
five months, even in the judgment relied on by the Tribunal,
the compensation of Rs.1,80,000/- was awarded for the fetus
death. In the latest judgment of the Hon'ble Supreme Court,
the compensation of Rs.1 lakh to each of the parents was
awarded on account of fetus death. Therefore, the
compensation awarded in MVC No.5358/2017 is unsustainable.
(ii) So far as MVC No.5357/2017, there was no proof of
the actual income of the injured, her evidence that she was
working as a teacher and earning salary of Rs.17,500/- p.m.,
was not substantiated by examining the authors of Ex.P19 -
appointment letter, Exs.P20 & P21 - the attendance registers
and Ex.P22 - letter of VLS International School.
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(iii) PW.4 was not a salary drawing officer nor was he
concerned with the appointment or payment of salary. He
himself admitted that he does not know anything about the
documents produced by him. Therefore, the Tribunal
committed error in accepting that she was working as teacher
and earning Rs.17,500/- p.m.
(iv) The compensation awarded on the heads of medical
expenses, pain and sufferings, future amenities etc. are on
higher side. The Tribunal was not justified in awarding
compensation of physical disablement. Therefore, he seeks
reduction of compensation awarded in both cases.
11. In support of his submissions, he relied on the
judgment in Shiv Kumar and Others Vs. Gainda Lal and
Others2
Submissions of Sri. Anantharama C., learned counsel for the
claimants:
12. The compensation awarded for the fetus' death is
on the lower side as the said child was first child of the couple.
So far as MVC No.5357/2017, though as per the Doctor the
permanent physical disability of the victim was 36%, the
Tribunal without assigning any reasons reduced the same to
(2022)14 SCC 342
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24%, which is unjustifiable one. The injured claimant was
B.Sc. and B.Ed. graduate and was working as a teacher.
Having regard to the permanent disablement of the injured, the
Tribunal ought to have awarded the compensation on the head
of loss of future earnings. The compensation awarded on other
heads is on the lower side. The Tribunal was not justified in
deducting the insurance reimbursement regarding medical
expenses. Therefore, the appeals of the insurer are liable to be
dismissed and the appeal of the claimants shall be allowed
enhancing the compensation.
13. In support of his submissions, he relied on the
judgment in Kusuma's case referred to supra.
14. On consideration of the submissions of both parties
and on examination of the records, the questions that arise for
consideration are:
1. Whether the compensation awarded in MVC
No.5358/2017 is just one?
2. Whether the compensation awarded in MVC
No.5357/2017 is just one?
Analysis
Reg. MVC No.5358/2017:
15. The occurrence of the accident, PW.2 - Mangala the
pillion rider suffering grievous injuries, abortion of her fetus
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and fetal death are not in dispute. The evidence of PW.2 - the
injured that soon after the accident she was admitted into
Fortis hospital and was treated as in-patient till 19.01.2017 was
not impeached. Ex.P30 - discharge summary issued by Fortis
hospital shows that at the time of admission, PW.2 was five
months pregnant. The said document also shows that she had
IInd trimester miscarriage (expelled foetus spontaneously).
Therefore, it can be inferred that fetus was aged about five
months. There was no dispute with regard to the claimants
being the parents of the fetus. The father was examined as
PW.1. Reading of paragraph No.2 of the judgment in
Kusuma's case referred to supra relied on by the learned
counsel for the claimants shows that in that case, age of the
fetus was 30 weeks that means around 7 months. In the
present case, the fetus was aged about 5 months.
16. In the similar circumstance, in the latest judgment
of the Hon'ble Supreme Court in Shiv Kumar's case referred
to supra relied on by the learned counsel for KSRTC, a sum of
Rs.1 lakh to each of the parents was awarded by the Hon'ble
Supreme Court. Even in the judgment relied on by the trial
Court, compensation of Rs.1,80,000/- was awarded in the case
of death of fetus of 30 weeks. The Tribunal without any
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plausible reasons, enhanced the compensation from
Rs.1,80,000/- to Rs.2,50,000/-.
17. In the light of aforesaid facts and circumstances of
the case, it is just and appropriate to award the compensation
of Rs.1,00,000/- to each of the parents following the latest
judgment of the Hon'ble Supreme Court in the case of Shiv
Kumar's case referred to supra. Award in MVC No.5358/2017
needs to be modified accordingly.
Reg. MVC No.5357/2017:
18. In this case the claimant contended that she
suffered grievous injuries and she was treated for 51 days in
Fortis hospital as in-patient. She lost her fetus also. To prove
the injuries suffered by her and about her permanent physical
disability, she relied on the evidence of herself and PW.5. The
evidence of PW.5, Ex.P15 - wound certificate, Exs.P16 and P17
- discharge summaries show that the victim suffered the
following injuries:
"Crush laceration-right upper limb, right side of chest,
back with right pneumothorax, degloving injury with nerve
injuries, injury over major part of the right upper limb,
fracture under scapula, intra uterine death of fetus and
spontaneous abortion."
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19. PW.5 - the Doctor, who treated her being the
Orthopedic Surgeon at Bowring and Lady Curzon Hospital,
Bangalore was competent to give evidence with regard to the
fracture suffered by her and her permanent physical disability
on that count. As per his evidence, she had suffered
dislocation of multiple ribs. His evidence shows that wound
debridement was done for her injuries several times under
general Anesthesia. PW.5 further deposed that the patient had
pain and inability to use her right upper limb for activities of
daily living. He further deposed about her inability to carry out
over head activities and inability to use right upper limb for
writing over black board. He assessed her permanent physical
disability at 36%. In the cross-examination of PW.5, nothing
was elicited to impeach his evidence regarding 36% disability.
According to him, the fractures were mal-united. Considering
the above documents, age and occupation of the claimant, it is
appropriate to assess the disability of the victim at 36% as
spoken by PW.5.
20. The claimant contended that she was serving as
Assistant Teacher in VLS International School and getting
salary of Rs.18,000/- per month. To prove the said contention,
she relied on the evidence of herself and PW.4 and Exs.P19 to
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P22, appointment letter, attendance registers and letter issued
by the school relating to her employment respectively. It is no
doubt true that PW.4 was neither salary drawing officer nor
employer. He claims to be the Transport Manager in VLS
International School. It is no doubt true that he admitted in
the cross-examination that he does not know the contents of
the documents produced by him, but his evidence that she was
working in that school was not impeached.
21. Learned counsel for the appellant placed before us
B.Sc. and B.Ed. certificates of the claimant and marks cards
relating to all semesters of the said course, which show that
claimant had performed well in her academics. Under the
circumstance, it can be gathered that atleast she was qualified
to be appointed as Teacher. Even assuming that there is no
proof of employment, her salary as Teacher can atleast
notionally be assessed at Rs.15,000/- per month. At the time
of the accident, she was aged 25 years. Her disability is more
than 30%. Therefore, future prospects has to be added to the
income of the claimant at 40% as held by Hon'ble Supreme
Court in the case of Pranay Sethi's case referred to supra.
Therefore, her monthly income comes to Rs.15,000/- +
Rs.6,000/- = Rs.21,000/-. She has to be awarded loss of
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future income at 36% of Rs.21,000/- which comes to
Rs.21,000/- x 36/100 = Rs.7,560/- p.m. For her age, the
applicable multiplier is 18. Therefore, the compensation
payable on the head loss of future earnings comes to
Rs.7,560/-x12x18=16,32,960/-. The Tribunal committed error
in not awarding any compensation on the head of loss of future
earnings.
22. The claimant suffered abortion due to the accident.
Further, she had suffered multiple rib fractures, fracture under
her scapula and fracture of right upper limb. She was treated
as in-patient for 51 days. Wound debridement was done to her
on several occasions under general Anesthesia. Considering all
the aforesaid facts and circumstances and more particularly
Exs.P16 and P17 - discharge summaries, Ex.P25 - photos, the
compensation awarded on the head of pain and suffering is just
and reasonable.
23. Having regard to the period of hospitalization,
nature of injuries and treatment underwent, the compensation
of Rs.52,000/- awarded on the head of food, attendant charges
and conveyance expenses needs to be maintained.
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24. Regarding disability of the claimant, Tribunal should
have awarded compensation on the head of loss of income
during laid up period atleast for four months, which comes to
Rs.15,000/-x 4 = Rs.60,000/-.
25. The Tribunal based on the medical records
produced by the claimant accepted that she had incurred
medical expenses of Rs.11,20,431/-. That was based on
medical bills - Ex.P23. However, the Tribunal relying on Ex.P18
deducted Rs.3,86,011/- on the ground that the same was
reimbursed to the claimant under the medical insurance policy
taken by her. The Hon'ble Supreme Court in Sebastiani
Lakra and Others Vs National Insurance Company
Limited and Another3 has held that the benefits accrued to
the parties by way of reimbursement under medical insurance
etc., is on account of the contributions made by them and they
are contractual benefits accrued to the parties. Therefore, it
was held that deduction shall not be given for such
reimbursement in the compensation to be awarded under the
head of medical expenses. Therefore, Tribunal committed error
in deducting the medical expenses for the amount
compensated by the insurer under the medical insurance
(2019) 17 SCC 465
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policy. As per Ex.P.18 - letter issued by Fortis Hospitals, total
bill was Rs.11,20,431/- out of that, discount of Rs.1,04,032/-
was given to the claimant. Therefore, the medical expenses
incurred by the claimant was Rs.10,16,399/-. Therefore,
Tribunal should have awarded compensation of Rs.10,16,399/-
on the head of medical expenses.
26. The evidence of PW.2-the injured claimant, PW.5 -
Doctor, other medical records and photographs show that
claimant suffered multiple scars and contractures on her right
upper back, scapular area of right arm. She has constricted
movement of her right arm. The medical evidence shows that
atleast for about four months, she was not able to attend to her
daily routine and she could not enjoy the amenities like any
other normal person. Therefore, the compensation awarded on
the head of loss of amenities needs to be enhanced from
Rs.60,000/- to Rs.1,00,000/-.
27. On awarding compensation on the heads of loss of
future income and amenities, there is no need to award
compensation again on physical disablement.
28. Though PW.5 deposed that claimant had to undergo
future surgeries and she needed future medical expenses, no
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records were produced regarding the same. Therefore, the
claimant is not entitled to any compensation on the head future
medical expenses.
29. In the light of the aforesaid discussions, the just
compensation payable to the claimant in this case is as follows;
Sl. Particulars Compensation
No. Amount in Rs.
1. Pain and sufferings Rs.1,00,000/-
2. Attendant charges, diet and Rs. 52,000/-
conveyance during
hospitalisation
3. Loss of income during laid- Rs. 60,000/-
up period
4. Medical expenses Rs.10,16,399/-
5. Loss of future income due Rs.16,32,960/-
to permanent disability
6. Loss of amenities Rs. 1,00,000/-
TOTAL Rs.29,61,359/-
Rounded off to Rs.29,61,400/-
30. The Tribunal without assigning any cogent reason,
just by referring to the judgment of the Hon'ble Supreme Court
reported in 2013 AIR SCW 5375 awarded interest on the
compensation at 9% per annum. As per Section 149(1) of the
Motor Vehicles Act, 1988 interest payable on the compensation
is by virtue of any enactment relating to interests. The laws
applicable to payment of interest are Interest Act, 1978 and
Section 34 of CPC. Interest Act governs rate of interest in
contractual transactions. The parties to such contracts are
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required to prove the rate of interest. This matter does not
arise out of contract. Therefore, Section 34 of CPC is
applicable. As per the said provision, interest becomes payable
at 6% per annum or bank lending rates. No evidence was
adduced regarding bank lending rates. Therefore, the award
with regard to interest also needs to be modified granting
interest at 6% per annum.
31. In the light of above discussion, MFA No.136/2022
has to be dismissed and other appeals deserve to be allowed in
part. Hence, the following;
ORDER
i) MFA No.136/2022 is dismissed.
ii) MFA Nos.4025/2020, 4174/2020 and 235/2022 are
partly allowed.
(iii) The award in MVC No.5358/2017 is modified as
follows:
a) The claimants are entitled to compensation of
Rs.2,00,000/- with interest thereon at 6% per
annum from the date of petition till its realization.
(iv) The award in MVC No.5357/2017 is modified as
follows:
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a) The claimant is entitled to compensation of
Rs.29,61,400/- with interest thereon at 6% per
annum from the date of petition till its realization.
v) The respondent in the claim petition shall deposit
the aforesaid compensation on adjusting the
amount already deposited, if any, before the
Tribunal within eight weeks from the date of receipt
of copy of this judgment.
vi) The award with regard to apportionment and
investment is maintained.
vii) The Registry shall transmit the amount in deposit, if
any, and the TCRs to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
Page Nos.1 to 15 - VBS
Page Nos.16 to 22 - MV
