Karnataka High Court
Smt. Sowmya. M. S vs The Divisional Manager on 6 December, 2023
-1-
NC: 2023:KHC:44285
MFA No. 2202 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 2202 OF 2018 (MV-I)
BETWEEN:
SMT. SOWMYA. M. S.
W/O RANJESH
AGED ABOUT 31 YEARS,
R/AT NO.18, SHARAVATHI NILAYA
ABBIGERE MAIN ROAD,
SHETTYHALLI
BENGALURU-560 039
R/AT MALAYAPARAMBIL HOUSE
KOTTONAM LANE, THAIKKATTUKARA ALUVAL
ERNAKULAM
KERALA-683 106
...APPELLANT
(BY SRI. GURUDEVA PRASAD K T.,ADVOCATE)
AND:
Digitally THE DIVISIONAL MANAGER
signed by JAI
JYOTHI J B.M.T.C. K H ROAD
Location: BENGALURU-560 027
HIGH COURT ...RESPONDENT
OF
KARNATAKA (BY SRI F.S.DABALI., ADVOCATE)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20/12/2018, PASSED IN MVC
NO.3123/2016, ON THE FILE OF THE XXI ADDL. SMALL
CAUSES JUDGE & XIX ACMM., MEMBER, MACT, BENGALURU
(SCCH-23), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
-2-
NC: 2023:KHC:44285
MFA No. 2202 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC
No.3123/2016, dated 20.12.2017, the claimant is before
this Court seeking enhancement of the compensation and
also questioning the contributory negligence fixed on the
claimant.
2. The claim petition was filed seeking
compensation of an amount of Rs.40,00,000/- for the
injuries sustained by the claimant. It is the case of the
claimant that on 20.04.2016, at about 8.45 a.m., near
Hebbala Bus stop, the driver of the BMTC bus drove the
bus in a rash and negligent manner and dashed against
the claimant. As a result of it, she fell down and sustained
grievous injuries. As per the wound certificate, she had
sustained as many as nine injuries and she was in hospital
for 33 days. According to the claimant, she was working as
NC: 2023:KHC:44285
a Software Engineer earning monthly salary of Rs.30,000/-
. The Doctor has assessed the disability at 31.4% to the
particular limb and 13.8% to the whole-body. The court
below has granted compensation under various heads as
follows:
Heads Compensation
Awarded
1. Pain and Sufferings : Rs. 60,000/-
2. Loss of Amenities : Rs. 50,000/-
3. Medical Expenses : Rs. 68,448/-
4. Conveyance, Nutritious food, : Rs. 50,000/-
nourishment
5. Loss of income of parents during : Rs. 20,000/-
laid up period
TOTAL : Rs. 2,48,448/-
3. When it comes to the disability as per the
evidence, even after the accident she continued in the job
and there was no loss of income. Hence, no compensation
was granted towards loss of future income and laid up
period. When it comes to contributory negligence, the
court below had observed that, though there was no
pedestrian crossing as per the sketch the claimant was
NC: 2023:KHC:44285
crossing the road. As such he contributed to the accident
and the court below apportioned the same at 20%
negligence on the claimant and 80% negligence on the
driver of the BMTC and held that the BMTC is liable to pay
an amount of Rs.1,98,758/- .
4. Learned counsel appearing for the claimant
submits that when the claimant was earning Rs.30,000/-
p.m., and when there is disability suffered as a result of
the accident, no amounts were granted under the head
loss of income due to disability. It is submitted that the
claimant had sustained nine injuries and the court below
had granted only an amount of Rs.60,000/- towards pain
and sufferings and even towards loss of amenities only an
amount of Rs.50,000/- was granted. He further submits
that under various conventional heads the court below had
not granted reasonable amounts.
5. Learned counsel for the claimant further
submits that the claimant was walking on the left side of
NC: 2023:KHC:44285
the road and the court below had fixed the contributory
negligence at 20%. The respondent-BMTC has failed to
examine the driver of the bus and without any basis fixed
the contributory negligence at 20% on the claimant which
is bad in law and without any basis.
6. Learned counsel appearing for the BMTC
submits that the sketch clearly shows that the claimant
was crossing the road where there was no pedestrian
crossing. The court below had rightly fixed the
contributory negligence at 20%. He submits that as the
disability had no impact on the future earning and
claimant continued in the job, the court below had rightly
not granted any amount. He submits that on the other
heads the amounts that were granted by the Tribunal are
on higher side and no grounds are made out for
enhancement of the compensation or on the contributory
negligence.
NC: 2023:KHC:44285
7. Having heard the learned counsel on either
side, perused the entire material on record. First coming to
the aspect of negligence, in this case according to the
claimant she was walking on the left side of the road. The
spot sketch which is marked by the claimant as Exhibit-P3,
shows that the spot of accident is while the claimant was
crossing the road. The court below had held that if the
claimant crossed the road in the pedestrian crossing this
accident would have not taken place. Hence, considering
all these aspects the contributory negligence is
apportioned at 10% on the claimant and 90% on the
driver of the BMTC bus.
8. Considering the fact that the claimant had
sustained as many as nine injuries and was hospitalized
for 33 days, under the head of pain and suffering this
Court is granting an amount of Rs.80,000/-. Coming to
the loss of amenities this Court has perused the
evidence partially which shows the severity of the injuries.
Hence this Court is inclined to grant an amount of
NC: 2023:KHC:44285
Rs.80,000/- under the said head. As far as the
compensation granted under the heads of medical
expenses, conveyance, nutritious food and
nourishment and loss of income to the parents is
concerned, the court below had granted a reasonable
amount.
9. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER1, the claimant is entitled for
an amount of Rs.10,000/- towards Legal Expenses.
10. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Pain and Sufferings : Rs. 80,000/-
2. Loss of Amenities : Rs. 80,000/-
3. Medical Expenses : Rs. 68,448/-
4. Conveyance, Nutritious food : Rs. 50,000/-
(2014) 11 SCC 178
NC: 2023:KHC:44285
and Nourishment
5. Loss of income to the parents : Rs. 20,000/-
during laid up period
6. Legal Expenses : Rs. 10,000/-
TOTAL : Rs. 3,08,448/-
90% : Rs. 2,77,603/-
11. Accordingly, the appeal is partly allowed,
enhancing the total compensation amount from
Rs.2,48,448/- to Rs.3,08,448/-. As this Court has
apportioned the contributory negligence at 10% on the
claimant and 90% on the driver of the bus, BMTC is liable
to pay Rs.2,77,603/- to the claimant.
i) The enhanced amount shall carry interest at 6%
p.a., from the date of petition till the date of
realization.
ii) The respondent shall deposit the amount within
a period of eight weeks from the date of receipt
of copy of the judgment. On such deposit, the
claimant is entitled to withdraw the entire
amount without furnishing any security.
NC: 2023:KHC:44285
iii) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
iv) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
JJ
