Karnataka High Court
Mr. S. A. Hameed @ Haneef vs The Managing Director on 27 November, 2023
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NC: 2023:KHC:42909
MFA No. 3858 of 2017
C/W MFA No. 3798 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 3858 OF 2017
(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3798 OF 2017
IN MFA NO. 3858 / 2017
BETWEEN:
THE MANAGING DIRECTOR
B.M.T.C.,
K H ROAD, SHANTHINAGAR,
BENGALURU-560 027
REPRESENTED BY ITS
Digitally
signed by JAI
CHIEF LAW OFFICER
JYOTHI J
Location:
HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. F S DABALI.,ADVOCATE)
AND:
MR. S.A. HAMEED @ HANEEF
S/O MR ABDULLA,
AGED ABOUT 47 YEARS
OCC:COOK,
R/O SAMPAJE,SULYA TALUK,
MANGALURU
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MFA No. 3858 of 2017
C/W MFA No. 3798 of 2017
(DAKSHINA KANNADA) 574 239
...RESPONDENT
(BY SRI. SURESH M LATUR.,ADVOCATE FOR R1)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED15.02.2017 PASSED
IN MVC NO.3119/2015 ON THE FILE OF THE XIII
ADDL.JUDGE AND MEMBER MACT COURT OF SMALL
CAUSES, BENGALURU, AWARDING COMPENSATION OF
RS.2,16,000/- TO THE PETITIONER WITH INTEREST AT
8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO. 3798 / 2017
BETWEEN
MR. S. A. HAMEED @ HANEEF
S/O. MR. ABDULLA,
AGED ABOUT 47 YEARS,
OCC: COOK,
R/AT SAMPAJE, SULYA TALUK,
MANGALURU,
DAKSHINA KANNADA
DISTRICT.
...APPELLANT
(BY SRI. SURESH M. LATUR., ADVOCATE)
AND
THE MANAGING DIRECTOR
B.M.T.C., K.H. ROAD,
SHANTHINAGAR,
BENGALURU-560027.
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MFA No. 3858 of 2017
C/W MFA No. 3798 of 2017
RESPONDENT
(BY SRI. F.S. DABALI ., ADVOCATE FOR R1)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 15.02.2017 PASSED
IN MVC NO.3119/2015 ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND
MEMBER MACT, BENALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC.No.
3119/2015 dated 15.02.2017 on the file of the XIII Addl.
Judge, Small Causes Court & MACT, Bengaluru, both the
BMTC and Claimant are before this court. Appeal of the
BMTC is MFA.No.3858/2017 and appeal of the claimant is
MFA.No.3798/2017.
2. The claim petition is filed seeking compensation
of an amount of Rs.15,00,000/- for the injuries sustained
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by the claimant in the accident. The case of the claimant
is that on 06.11.2014 at about 2.45 p.m. the claimant was
standing near temple, at that time a BMTC bus came in a
rash and negligent manner from Balekundri Circle,
Shivajinigar and dashed to the claimant. Due to impact, he
sustained injuries. According to the claimant, he was
working as a cook and earning an amount of Rs.15,000/-
per month. When it comes to the liability, the court below
has held that the accident had taken place because of the
rash and negligent driving of the driver of the BMTC Bus
and they are liable to pay the compensation. When it
comes to compensation, considering the fracture injury
i.e., closed shat of femur fracture (right), the court below
had granted an amount of Rs.40,000/- towards pain and
suffering, the doctor has deposed that the claimant
requires an amount of Rs.20,000/- for future operation,
but the court below had granted an amount of
Rs.10,000/-. Then coming to the loss of future income,
when it is the case of claimant that he was earning an
amount of Rs.15,000/- per month, as there is no evidence,
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the court had taken an amount of Rs.6,000/-, granted an
amount of Rs.18,000 towards loss of income during laid up
period income and granted an amount of Rs.1,08,000/-
towards loss of future income. Then towards diet and
conveyance granted an amount of Rs.20,000/- and
towards loss of amenities an amount of Rs.20,000/- is
granted. Altogether compensation of an amount of
Rs.2,16,000/- was granted by the Tribunal.
3. Learned counsel for the BMTC submits that the
BMTC bus is not involved in the accident. He submits that
they have produced the trip sheet in support of the same
and at that particular time, they have not plyed the vehicle
in the said root. Only for the purpose of claiming the
compensation, the said vehicle has been implicated in this
case. He further submits that even otherwise as per the
sketch, the accident had taken place in the junction and
the claimant was crossing the road where there is no
pedestrian crossing as such there is contributory
negligence. It is submitted that these aspects were not
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considered by the court below. It is submitted that even
the compensation that was awarded by the Tribunal is on
the higher side. It is further submitted that the
compensation granted by the Tribunal at 8% interest is on
the higher side.
4. Learned counsel for the claimant submits that
in support of the accident they have examined PW-4 and
PW-5 who are the eyewitness to the incident and they
have deposed that accident had taken place because of
rash and negligent driving of the driver of the BMTC bus.
The court below has also observed that the nothing contra
could be elicited from PW-4 & 5 by the respondent with
regard to the involvement and the negligence of the BMTC
Bus. The Respondents have examined RW-1-Driver, RW-2
Assistant Traffic Inspector. The court below has not
considered the evidence of RW-2 because he had not
subjected himself to the cross-examination. It is
submitted that the court below had considered all these
factors and held that the BMTC bus driver was negligent
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and they are liable to pay the compensation. It is
submitted that the BMTC cannot take the plea of
contributory negligence as it was never their case and it
was never pleaded before the court below and no contra
evidence is adduced by them. He submits that when it
comes to the income it is pleaded that he is earning an
amount of Rs.15,000/- per month. The accident had
taken place in the year 2014, the court below considering
the income at Rs.6,000/- is on the lower side. It is
submitted that when the doctor has deposed that it
requires Rs.20,000/- for future medical expenses, without
any basis the court below had granted an amount of
Rs.10,000/-. Even the disability also, the court had
considered at 10% which is on the lower side. Towards
loss of amenities, the court below had not granted
appropriate compensation. He submits that the
compensation that was granted by the Tribunal is not just
and reasonable.
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5. Having heard the learned counsel on either
side, perused the entire material on record. In this case,
the claimant has sustained fracture of closed shaft of
femur right, under the head of pain and suffering the court
had granted an amount of Rs.40,000/-, no interference is
called under this head. Coming to loss of future income,
as per the doctor, the claimant had sustained 41%
disability to the particular limb and 21% disability to the
whole body. The court below had considered disability at
10% without any discussion. Considering the evidence of
doctor that the disability at 41%, this court is inclined to
take 1/3rd of 41% i.e., 14% as disability to the whole
body. This accident had taken place in the year 2014 and
according to the claimant, he was working as cook, the
court ought to have take income at an amount of
Rs.8,500/-. (Rs.8,500/- x 12 x 14 x 14/100) Under the
head of loss of future income, the claimant is entitled for
an amount of Rs.1,99,920/-. Then coming to the loss of
income during the laid up period, this court is inclined to
grant an amount of Rs.25,500/- for three months.
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Towards diet, attendant and conveyance, the court below
had granted an amount of Rs.20,000/- which is a
reasonable amount and no interference is called for.
Under the head of loss of amenities, the court below had
granted an amount of Rs.20,000/-, and this court
considered the evidence on record inclined to grant an
amount of Rs.25,000/-. Coming to the rate of interest
court below had granted 8% interest, which is on the
higher side and the same is reduced to 6%.
6. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V. MEKALA -vs- M.
MALATHI AND ANOTHER 1, the claimant is entitled for
an amount of Rs.10,000/- towards legal expenses.
Altogether the claimant is entitled for an amount
Rs.3,40,420/- at 6% interest.
7. The claimant is entitled for compensation under
the following heads:
(2014) 11 SCC 178
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Sl. Description of Items Compensation
Awarded
No.
1. Loss of future income Rs. 1,99,920/-
2. Pain and suffering Rs. 40,000/-
3. Loss of income during Rs. 25,500/-
laid up period
4. Loss of amenities Rs. 25,000/-
5. Diet, Conveyance and Rs. 20,000/-
Attendant
6. Future Operation Rs. 20,000/-
7. Legal Expenses Rs. 10,000/-
Total Rs. 3,40,420/-
8. Accordingly, the appeal filed by the claimant
i.e., MFA.No.3858/2017 is Allowed-in-part by enhancing
the compensation amount from an amount of
Rs.2,16,000/- to Rs.3,40,420/-. The appeal filed by
the BMTC i.e., MFA.No.3798/2017 is Allowed-in-part by
reducing the interest for the compensation from 8% to
6%.
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(a) The compensation amount shall carry
interest @ 6% per annum from the date
of petition, till the date of realization.
(b) Respondent-Insurance Company shall
deposit the said compensation amount
with accrued interest before the tribunal
within a period of 8 (Eight) weeks.
(c) The amount in deposit shall be forthwith
transmitted to the Tribunal.
(d) The Registry is directed to return the Trial
Court Record to the Tribunal along with
the certified copy of the order passed by
this court forthwith without any delay.
(e) No Costs.
Pending miscellaneous petitions, if any, shall
stand closed.
SD/-
JUDGE
TS
