Karnataka High Court

Master. Azam Pasha vs The Managing Director on 3 March, 2023

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF MARCH, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A. NO.4396/2016 (MV-I)
                     CONNECTED WITH
                 M.F.A. NO.3208/2016 (MV-I)


IN M.F.A. NO.4396/2016:

BETWEEN:

THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H.ROAD
SHANTHINAGAR
BANGALORE-560 027                             ... APPELLANT

            (BY SRI D.VIJAYA KUMAR, ADVOCATE)
AND:

MASTER AZAM PASHA
S/O SRI IQBAL PASHA
AGED ABOUT 17 YEARS

SINCE RESPONDENT IS MINOR
REP. BY HIS FATHER AND NATURAL
GUARDIAN, SRI IQBAL PASHA
S/O SRI ABDULLA ZEEZ
AGED ABOUT 43 YEARS
R/AT NO.175, 2ND CROSS
MUSLIM COLONY
                            2



SHAMPURA MAIN ROAD
BANGALORE-560 045                         ... RESPONDENT

           (BY SRI SURESH M. LATUR, ADVOCATE)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.03.2016
PASSED IN MVC NO.3271/2014 ON THE FILE OF THE MEMBER,
MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU, AWARDING COMPENSATION OF RS.5,88,000/-
WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL
DATE OF THE PAYMENT AND ETC.

IN M.F.A. NO.3208/2016:

BETWEEN:

MASTER AZAM PASHA
S/O MR. IQBAL PASHA
AGE: 16 YEARS, OCC: STUDENT
SINCE MINOR REPRESENTED BY
HIS FATHER AND NATURAL GUARDINA
MR.IQBAL PASHA S/O ABDULLA ZEEZ
AGE: 43 YEARS
R/AT NO.175, 2ND CROSS, MUSLM COLONY
SHAMPURA MAIN ROAD
BENGALURU-560 045.                         ... APPELLANT

           (BY SRI SURESH M.LATHUR, ADVOCATE)

AND:

THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD
SHANTHINAGAR
BENGALURU-560 027
                                          ... RESPONDENT

           (BY SRI D.VIJAYA KUMAR, ADVOCATE)
                                3



     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.03.2016
PASSED IN MVC NO.3271/2014 ON THE FILE OF THE 16TH
ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.


    THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 15.02.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:


                        JUDGMENT

These two appeals are filed by the Corporation and the

claimant respectively challenging the judgment and award dated

08.03.2016 passed in M.V.C.No.3271/2014 on the file of the

Motor Vehicles Accident Claims Tribunal, Bangalore City 'the

Tribunal' for short).

2. The factual matrix of the case of the claimant before

the Tribunal that the claimant was aged about 14 years and was

a student and represented by his father. That on 13.06.2014 at

9.40 p.m., when the claimant was riding bicycle on MM Road,

near Nethaji road junction, at that time, BMTC bus driven by its

driver from Pottery circle to Haines road with a high speed, in a

rash and negligent manner came and dashed against the

claimant, as a result, he fell down and rear wheel of the bus

passed over the left leg of the claimant hence, he sustained

grievous injuries. Immediately, he was taken to Santhosh

hospital, Bangalore, then, he was shifted to Bowring and Lady

Curzon hospital, Bangalore and then, he was shifted to Victoria

hospital. The claimant had sustained degloving injuries to left

leg and other grievous injuries all over the body. It is also the

contention of the claimant that due to the accidental injuries, he

has suffered permanent disability and also lost his prosperity.

3. In pursuance of the claim petition, notice was issued

to the Corporation and the Corporation filed the written

statement contending that the police have filed a false case

against the driver of the bus as the accident was occurred due to

the negligence on the part of the injured himself and they have

paid Rs.10,000/- to the claimant on humanitarian ground and

the same shall be deducted from the award amount if any

passed in favour of the claimant.

4. The claimant in order to prove his case, examined

his father as PW1, the doctor as PW2 and injured himself as PW3

and the record keeper as PW4 and got marked the documents at

Ex.P1 to P24. The respondent has not led any evidence. The

Tribunal after considering both oral and documentary evidence

placed on record allowed the claim petition granting

compensation of Rs.5,88,000/- with 9% interest. Hence, these

appeals are filed by the respective parties questioning the

quantum of compensation awarded and negligence.

5. The claimant in MFA No.3208/2016 contended that

the Tribunal has committed and error in awarding the very

meager compensation when the injured was aged about 14

years and he had suffered 68% disability to the left lower limb

and other grievous injuries all over the body. Hence, the

Tribunal ought to have awarded an amount of Rs.1,00,000/-

instead of Rs.50,000/- towards pain and suffering. The Tribunal

has awarded an amount of Rs.1,75,000/- towards medical

expenses and the same is very meager hence, the Tribunal

ought to have awarded an amount of Rs.2,00,000/- towards

medical expenses. The Tribunal has awarded an amount of

Rs.15,000/- towards nourishment, attendant charges and

Rs.8,000/- towards conveyance and ought to have been awarded

Rs.25,000/- each. The Tribunal has awarded Rs.15,000/-

towards loss of income to the parents and ought to have

awarded Rs.70,000/- on the said head. The Tribunal has

awarded an amount of Rs.25,000/- towards loss of academic

year and ought to have awarded an amount of Rs.1,00,000/- on

the said head. The Tribunal has awarded an amount of

Rs.3,00,000/- towards disability and loss of amenities and the

Tribunal ought to have awarded an amount of Rs.5,00,000/-.

The Tribunal has not awarded any compensation towards loss of

expectation of life, future medical expenses and loss of marriage

prospectus and the Tribunal ought to have awarded

Rs.1,00,000/- each on the aforesaid heads. Hence, prayed this

Court to enhance the compensation.

6. The counsel in support of his arguments, relied upon

the judgment of the Apex Court in the case of V MEKALA vs

M MALATHI AND ANOTHER reported in 2014 ACJ 1441. The

counsel referring to this judgment would vehemently contend

that the Apex Court has taken notional income of Rs.10,000/-

per month and added 50% for future prospectus taking

disablement at 70% and applied multiplier of 18 and hence, the

Tribunal has committed an error in not considering the said

judgment. The counsel submits that this judgment was delivered

in the year 2014 inspite of this judgment, the Tribunal relied

upon the judgment of Apex Court in the case of MALLIKARJUN

v. DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD.

AND ANOTHER reported in (2014) 14 SCC 396 and the same

is not applicable to the facts of the case on hand.

7. The counsel also relied upon the judgment of this

Court in the case of N BHARATH vs K NANJUNDAPPA AND

ANOTHER reported in 2020 ACJ 1266 wherein this Court taken

the notional income of Rs.7,000/- per month and added

multiplier of 15 and injured is a student studying at 10th

standard and taken disability of 15% and enhanced the

compensation and hence, based on in this case also, the

claimant in this case is entitled for the enhancement of

compensation.

8. The counsel also relied upon the judgment the Apex

Court in the case of M R KRISHNA MURTHI vs NEW INDIA

ASSURANCE CO. LTD., AND OTHERS reported in 2019 ACJ

1291 and contend that injured was aged about 18 years and a

student, belonging to affluent family and suffered 40%

disablement and the Tribunal have taken future income of

Rs.5,000/- p.m. and enhanced the compensation to

Rs.6,54,000/-.

9. The counsel also relied upon the judgment of this

Court in the case of JACOB vs THE MANAGING DIRECTOR,

KSRTC DEPOT reported in 2017(2) MACR 918 (KAR) and

contended that in order to establish contributory negligence,

crucial witness to establish factum of negligence would have

been driver of offending vehicle, since driver not examined an

adverse inference has to be drawn more particularly, against

driver of offending vehicle.

10. The counsel also relied upon the judgment of this

Court in the case of A ANANDAM vs ABDUL AZEEZ AND

OTHERS reported in 2004 ACJ 1091 and the counsel referring

to this judgment contended that injured was crossing the road

without caring for traffic, neither the motorcyclist was examined

or any other evidence was produced by the defendants, Tribunal

held that motorcyclist was responsible for the accident to the

extent of 80% and the injured 20% and the High Court held that

Tribunal finding reversed in appeal holding that motorcyclist was

solely responsible for the accident.

11. The counsel referring these judgments would

vehemently contend that the Tribunal has committed an error in

taking the disability of 20% hence, it requires interference of this

Court.

12. Per contra, the counsel appearing for the Corporation

in MFA No.4396/2016 would vehemently contend that fastening

the liability only on the Corporation is unjustifiable in law. The

counsel would further submit that the accident was occurred due

to negligence on the part of the injured but Tribunal failed to

take note of the said fact. The Tribunal miserably failed to take

note that it is not a head on collusion and minor petitioner came

from right side cross road and suddenly entered the main road

during night time and dashed against the bus and there was no

chance for the driver of the bus to see the claimant coming from

right side cross road and the claimant should be very careful.

The witnesses who have been examined that is PW1 and PW3

are the interested witnesses and Tribunal miserably failed to

note that as per Ex.P3 - spot mahazar and Ex.P4 sketch which

clearly shows that BMTC bus is moving on the correct side of the

road and claimant came from right side road and hence, ought

not to have fixed the liability on the Corporation in entirety. The

other contention that the claimant has not produced the wound

certificate but he has produced referral letter and injury is only a

degloving injury and there was no any fracture and when

Mallikarjun's case (referred supra) is applied by the Tribunal,

ought not to have granted the compensation on the other heads

except the head of disability, loss of income of the parents and

medical expenses hence, committed an error in awarding more

compensation and the same is exorbitant. And the counsel for

the Corporation further contended that the interest awarded by

the Tribunal is also on the higher side. Thus, it requires

interference of this Court.

13. Having herd the respective counsel appearing for the

parties and also on perusal of the material available on record,

the points that would arise for the consideration of this Court

are:

(1) Whether the Tribunal has committed an

error in not taking the negligence on the

part of the claimant/injured and also

committed an error in fastening the entire

liability on the Corporation?

(2) Whether the Tribunal has committed an

error in granting exorbitant compensation

as contended by the Corporation?

(3) Whether the Tribunal has committed an

error in not awarding just and reasonable

compensation?

(4) Whether interest awarded by Tribunal at

9% is on the higher side as contended by

the counsel for the Corporation?

(5) What order?

Point No.1

14. It is not in dispute with regard to the accident but

only contention taken by the Corporation that accident was

occurred due to negligence on the part of the claimant as the

claimant entered the main road coming from right side cross

road and hence, the accident was occurred and the driver of the

BMTC could not notice that suddenly entering into the main road

by the claimant. The counsel for the claimant would vehemently

contend that the material is very clear that bus came from

behind and dashed against the cyclist when the cyclist was

proceeding ahead of the bus and hence, the very contention of

the Corporation cannot be accepted. No doubt, PW1 was not at

the spot and PW3 i.e., the injured also has been examined and

evidence of PW3 is very clear that bus came from his behind and

dashed to his motorcycle, the bus passed over on his left leg. In

the cross-examination it is elicited that there is a bus stop near

Doddi and also it is elicited that there was movement of public

and vehicle at that time and he was riding his bicycle by the side

of foot path and the bus came from his back and caused the

accident. It is suggested that the driver of the bus after stopping

the bus at the bus stop it was moving slowly and suddenly took

bicycle towards right side, lost balance and came in contact with

left side portion of the bus and the said suggestion was denied.

But the very contention that cyclist came from the right side

cross road is not even suggested to PW3.

15. PW1 evidence is very clear that bus came behind

PW3 and dashed against him. Apart from that the driver of the

bus has not been examined before the Court. Hence, the

principles laid down in the judgment of JACOB's case referred

above is aptly applicable to the case on hand and also in the

ANANDAN's case also this Court set aside the taking the

contributory negligence to the extent of 20% and 80% in the

absence of any evidence led by the offending vehicle driver and

the same is applicable to the facts of the case on hand. Hence, I

do not find any force in the contention of the counsel for the

Corporation that the accident was occurred due to negligence on

the part of the cyclist. Hence, I answer point No.1 as negative.

16. These two points are interconnected with regard to

the quantum of compensation is concerned. It is the contention

of the Corporation that the compensation awarded is on the

higher side and the contention of the claimant that the

compensation awarded is very meager. The counsel appearing

for the claimant relied upon the judgment of MEKALA case

wherein injured was 16 years girl and taken note of disablement

of 70% and applied multiplier of 18 and no doubt, the Apex

Court taken the notional income of Rs.10,000/-. In the case on

hand, the doctor assessed the disability to the particular limb is

68% and the Tribunal taken the disability of 20%. In

BHARATH's case of this Court, injured was studying 10th

standard and taken the notional income at Rs.7,000/- and

disability at 50% and in KRISHNAMURTHY's case, the Apex

Court taken note of injured was 18 years and a student and

adopted multiplier of 18 instead of 17. This Court has to take

note of the facts of each case. In the case on hand, the injured

was aged about 13 years and he had sustained the degloving

injury as per Ex.P6 and immediately he was taken to Santhosh

hospital and the same is evident from the document at Ex.P7

and thereafter injured was shifted to Victoria hospital on the

next day and he was an inpatient for a period of 20 days and

also subjected to surgery.

17. In support of his claim, examined the doctor as PW2.

The doctor on examination while assessing the disability taken

note of difficulty in walking, unable to extend left knee joint and

found skin grafted, scar over the left knee and lower thigh and

upper leg, stiffness of left knee joint and loss of movements of

left knee and taken note of mobility component of left knee joint

at 30%, stability component at 20%, deformity at 6%, pain at

6% and deep complications at 6% and assessed the total

disability for his left lower limb is 68%. The disability assessed

at 68% is also in respect of left lower limb and if it is taken 1/3rd

it comes to around 22.6% and the same is rounded off as 23%.

18. In the cross-examination also the doctor admits that

he had sustained degloving injury to his left lower limb only and

he was discharged from the hospital and by that time his wounds

were healed and his condition was improved. It is suggested

that disability assessed by him is on the higher side and the

same was denied. He categorically says that he has shown

calculation in Ex.P17 which is same as shown in his affidavit and

admits that he has not produced detailed calculation sheet.

Hence, the very contention of the counsel for the claimant that

taking of disability is on lower side cannot be accepted since

1/3rd of 68% disability comes to around 23% hence, this Court

accepted the disability of 23%.

19. Now, the contention of the counsel for the

Corporation that applying of MALLIKARJUN case is not erroneous

and relying upon the judgment of MEKALA's case and

KRISHNAMURTHY's case of the Apex Court does not arise. No

doubt, the principles laid down in the judgments referred supra,

this Court in BHARATH's case taken the notional income of

Rs.7,000/- and Apex Court in MEKALA'S case taken notional

income of Rs.10,000/-. This Court has to take note of the facts

of each case. In MEKALA's case, the injured was aged about 16

years and in BHARATH's case, the injured was studying 10th

standard and in KRISHNAMURTHY's case, the injured was

aged about 18 years. In the case on hand, the injured was aged

about 13 years, this Court has to take note of the said fact into

consideration. However, considering the material available on

record and judgment of the Apex Court in MEKALA's case,

which was reported in the year 2014 and in the very same year

MALLIKARJUN's case was also reported and MEKALA's case

was not considered and this Court in BHARATH's case in the

year 2020, in a case of 10th standard student taken the notional

income of Rs.7,000/- and adopted the multiplier of 15 in a case

of 50% of disability. In the case on hand, the accident of the

year 2014, hence, it is appropriate to take notional income of

Rs.7,000/- as taken in BHARATH's case.

20. Having taken the notional income of Rs.7,000/-,

50% has to be added towards future prospectus since, Division

Bench of this Court vide order dated 27.05.2022 in MFA

No.103807/2016 connected with MFA No.103807/2016, in a case

of 20% disability, added future prospectus. Hence, if 50% added

to the income it comes to Rs.10,500/- (7,000x50%). The

relevant multiplier would be 15 and taking disability of 23%, the

loss of future income comes to Rs.4,34,700/- (10,500 x 15 x 12

x 23%).

21. The Tribunal awarded compensation of Rs.50,000/-

towards pain and sufferings and the same is just and reasonable.

The Tribunal also awarded compensation of Rs.1,75,000/-

towards medical expenses and the same is based on the medical

bills hence, it does not require any interference. The Tribunal

awarded an amount of Rs.15,000/- towards nourishment and

attendant charges and awarded an amount of Rs.8,000/-towards

conveyance and the same does not require any interference for

enhancement. The loss of income to the parents awarded an

amount of Rs.15,000/- and records discloses that the claimant

was an inpatient for a period of 20 days and also he was a minor

aged about 13 years and the parents have to take care of minor

till recovery. Hence, it is appropriate to enhance the same to

Rs.25,000/- as against Rs.15,000/-. The Tribunal awarded

compensation of Rs.25,000/- on the head of loss of academic

year and the same it does not requires any interference. In all

the claimant is entitled for com of Rs.7,32,700/- as against

Rs.5,88,000/-. Hence, point Nos.2 and 3 is answered

accordingly.

Point No.4:

22. The very contention of the counsel for the

Corporation that the interest awarded by the Tribunal at 9% is

on the higher side. Having taken note of the fact that the

accident is of the year 2014 and the Court has to take note of

the nationalised bank interest. Hence, the interest awarded at

9% is on the higher side and the same has to be reduced to 6%

as contended by the counsel for the Corporation. Hence, this

point is answered as affirmative.

Point No.5:

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

following:

ORDER

(i) The appeal filed by the Corporation in MFA No.4396/2016 is allowed in part.

(ii) The appeal filed by the claimant in MFA No.3208/2016 is allowed in part.

(iii) The impugned judgment and award of the Tribunal dated 08.03.2016 passed in M.V.C.No.3271/2014, is modified granting compensation of Rs.7,32,700/- as against Rs.5,88,000/- with interest at 6% per annum from the date of petition till deposit.