Karnataka High Court

Sri Eshan Pasha vs The Manaing Director on 8 December, 2023

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                                                                  NC: 2023:KHC:45895
                                                                 MFA No. 2585 of 2014




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                                BEFORE
                        THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 2585 OF 2014 (MV-I)
                       BETWEEN:

                       SRI ESHAN PASHA
                       S/O ABDUL ALI
                       AGED ABOUT 26 YEARS
                       R/AT NO.1169, DASTAGIR
                       MAIN ROAD, VIJAYANAPURA
                       BANGALORE                                   ...APPELLANT

                       (BY SRI. HARISH BABU K N., ADV.)

                       AND:

                       THE MANAGING DIRECTOR
                       BMTC, CENTRAL OFFICE
                       SHANTHINAGAR
                       BANGALORE-560 02                          ...RESPONDENT

                       (BY SRI. F S DABALI, ADV.)

                              THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
Digitally signed by  AGAINST THE JUDGMENT AND AWARD DATED 8.8.2013
MALA K N             PASSED IN MVC NO.1490/2006 ON THE FILE OF THE VI ADDL.
Location: HIGH COURT SMALL CAUSES JUDGE & XXXI ACMM, BANGALORE,
OF KARNATAKA         DISMISSING THE CLAIM PETITION FOR COMPENSATION.

                            THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
                       THE COURT DELIVERED THE FOLLOWING:

                                             JUDGMENT

In this appeal, the petitioner has challenged the

judgment dated 08.08.2013 in M.V.C.No.1490/2006

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passed by the M.A.C.T., Bengaluru (SCCH-2) ('the

Tribunal' for short).

2. For the sake of convenience, the parties

shall be referred to as per their status before the

Tribunal.

3. Brief facts of the case are, on 27.10.2005 at

about 07:55 am while the petitioner was riding the

motor cycle bearing Reg.No.KA-01/X-7862 on

Devasandra Main Road near Ayyappa Nagar

Junction, hit a B.M.T.C. bus bearing Reg.No.KA-01/F-

3624, injuring the petitioner. After taking treatment,

the petitioner approached the Tribunal for grant of

compensation of Rs.5,00,000/-. Claim was opposed

by the B.M.T.C. The Tribunal after taking the

evidence, by impugned judgment dated 05.01.2007,

dismissed the claim petition. Aggrieved by the

same, the petitioner has preferred

M.F.A.No.5546/2007 before this Court. After hearing

the matter, M.F.A. was allowed, the matter was

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remanded to the Tribunal for reconsideration vide

order dated 10.02.2012. After the remand, again

the matter was placed before the Tribunal and by

impugned judgment, the Tribunal again dismissed

the claim petition. Hence, the petitioner has filed

this appeal on various grounds.

4. Heard the arguments of Sri. Harish

Babu. K.N, learned counsel for the petitioner and

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

Company.

5. It is the contention of learned counsel for the

petitioner that after the remand, the petitioner could

not lead the evidence in proof of the accident as

none of the eye witnesses were available to him.

Though the petitioner was prosecuted by the Police,

it does not mean that he has contributed fully for the

accident. Learned counsel has relied upon

Ex.P3/sketch prepared by the Investigating Officer,

so also Ex.P4/mahazar. The petitioner is young aged

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18 years old boy, suffering crush injury with fracture

of left hand has suffered disability and he sought for

sympathetic view for award of compensation.

6. Per contra, learned counsel for the B.M.T.C.

has contended that the bus was not at all involved in

the accident, which has been explained in

Ex.P5/I.M.V. report, the motor cycle was not

subjected to I.M.V. inspection, at the time of

accident, the petitioner was a minor who rode the

motor cycle without driving licence negligently and

fell down himself. For the reason of the bus came to

the spot at that time, claim is made against the bus.

The Police on further investigation found that the

petitioner is the tortfeasor and he has been

prosecuted and tried before the Court. Hence, the

Tribunal has rightly considered the material on

record and dismissed the claim petition and he

supported the impugned judgment.

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7. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the materials on record.

8. The material on record did point out that

there was an accident at Ayyappa Nagar cross on

K.R. Puram-Devasandra Main Road. The mahazar as

well as the spot sketch point out that the B.M.T.C.

was entering towards K.R. Puram Main road from

Chikkabasavanapura road. The place of accident is

30 ft. wide road, whereas the B.M.T.C. bus took turn

towards K.R. Puram, crossing complete right side,

leaving only 5 ft. place by the road side. Even if the

argument of learned counsel for B.M.T.C. is accepted

that the bus was not involved in the accident, the

manner in which the bus had taken the right turn

towards K.R. Puram clearly points out that it has

prompted the accident as the bus entered the road

all of a sudden. A motorist who is going slowly or

with high speed will not be able to control the

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accident and he fell to the ground. Similar is the

circumstances. Mere the petitioner's prosecution is

not only the ground to reject the claim petition. On

perusal of the impugned judgment, the Tribunal has

come to the prejudge conclusion that the complete

negligence is on part of the petitioner and therefore,

he is not entitled to compensation. The Tribunal

requires to think beyond imagination and consider

the material on record. Spot sketch and mahazar

show that if the bus has gone forward after crossing

the middle of the road and then taken right side,

there could not have been any accident. The Bus

has taken sudden right turn without leaving any

space to motorist. When an accident takes place, it

is not at all necessary that either of the vehicles

must sustain damages. For prompting an accident,

damage to the bus or motor cycle is not necessary.

Hence, such an argument cannot be supported with.

No doubt that the petitioner was negligent and he

has been prosecuted for the negligent riding of the

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motor cycle, but it cannot be a complete negligence

on part of the petitioner. If the B.M.T.C. bus was not

crossing at that time, there was no chance of

accident. Hence, involvement of the B.M.T.C. bus

cannot be ruled out and it is a case of contributory

negligence. In the facts and circumstances of the

case and considering the material on record,

contributory negligence on part of the petitioner is

not less than 75% and that of the B.M.T.C. bus is at

25%. Accordingly, fair conclusion is arrived.

9. The petitioner has sustained avlution injury

to left hand with fracture of 1st, 4th, base of 5th

metacarpal and treated Doctor of the petitioner is of

the opinion that the petitioner has suffered 69% limb

disability and 23% whole body disability. Having

regard to nature of injuries, the disability shall not

be taken more than 5%. The accident is of the year

2005 and one can make out that a person with no

proof of income in that year will earn not less than

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Rs.3,000/-. Ex.P6/discharge summary points out

that the petitioner was under hospitalization for 1½

months between 27.10.2005 to 10.12.2005. Case

sheet shows the treatment given to him. It is

pertinent to note that at Ex.P9/case sheet, specific

history is mentioned about the accident which requires

a mentioning here, which reads as follows:

"H/o RTA when patient is on a motor cycle who was hit by a bus at K.R. Puram at 07:30 am on 27.10.2005"

10. Hence, the petitioner is entitled for

compensation to the extent of 25% of negligence on

part of the B.M.T.C. bus. Accordingly, compensation

has to be assessed and awarded to the petitioner.

As discussed above, the income of the petitioner is

taken at Rs.3,000/- and disability is taken at 5%.

The petitioner was aged 18 years and applicable

multiplier is '18'. Hence, loss of future earnings will

be Rs.3,000/- x 12 x 18 x 5% = Rs.32,400/-. Thus,

the petitioner is entitled to:

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Sl. No. Particulars Rs. 1 Pain and suffering 10,000 3 Medical expenses 16,099 2 Attendant charges (Rs.3,000/- x 4,500 1½ months) 3 Food and nourishment 2,000 4 Travelling expenses 1,000 5 Loss of amenities and discomfort 10,000 6 Loss of income during laid-up for 9,000 3 months (Rs.3,000/- x 3) 7 Loss of future earnings 32,400 8 Future medical expenses 10,000 Total 94,999

11. Thus, the petitioner is entitled to 25% of

Rs.94,999/- comes to Rs.23,750/-. This is the just

compensation that the petitioner entitled to in the

facts and circumstances of the case. Hence, the

appeal merits consideration, in the result, the

following: