Karnataka High Court

The Managing Director vs Sri Anikesh P on 28 November, 2023

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                                                                      NC: 2023:KHC:43062
                                                                      MFA No. 104 of 2016
                                                                  C/W MFA No. 106 of 2016




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 28TH DAY OF NOVEMBER, 2023

                                                    BEFORE
                           THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                         MFA NO. 104 OF 2016 C/W
                                       MFA NO. 106 OF 2016 (MV-INJ)

                           BETWEEN:

                           THE MANAGING DIRECTOR
                           BANGALORE METROPOLITAN
                           TRANSPORT CORPORATION
                           CENTRAL OFFICE, K.H.ROAD
                           SHANTHINAGAR
                           BANGALORE - 560 027                    ... APPELLANT
                                                                [COMMON IN BOTH APPEALS]
                           (BY SRI.D.VIJAYAKUMAR, ADV.)

                           AND:

                           IN MFA NO.104/2016

                           SRI. ANIKESH P.
                           S/O SRI.HARIDASAN
                           AGED ABOUT 33 YEARS
Digitally signed by MALA
KN                         R/AT NO.109-B, VELLUR ROAD
                           PODANUR, COIMBATORE - 641 023             ... RESPONDENT
Location: HIGH COURT
OF KARNATAKA
                           IN MFA NO.106/2016

                           SMT. NEEBA B. M.
                           W/O SRI. ANIKESH
                           AGED ABOUT 28 YEARS
                           R/AT NO.33, 12TH CROSS
                           RAVINDRANAGAR
                           MALLISANDRA
                           BANGALORE NORTH
                           BANGALORE - 560 057                        ... RESPONDENT
                               -2-
                                            NC: 2023:KHC:43062
                                            MFA No. 104 of 2016
                                        C/W MFA No. 106 of 2016




(BY SMT. NITHYA V., ADV. FOR
    SRI. M. H. PRAKASH, ADV. FOR C/R)

      THESE APPEALS ARE FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
20.08.2015 PASSED IN MVC NO.4010/2014 AND 4121/2014
ON THE FILE OF THE XIX ADDITIONAL SCT, MACT AND XLI
ACMM, AWARDING COMPENSATION OF RS.2,07,066/- AND
RS.6,23,570/- WITH INTEREST AT 6% P.A., FROM THE DATE
OF PETITION TILL DEPOSIT.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.11.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                     JUDGMENT

In these two appeals, B.M.T.C. has challenged

the common judgment dated 20.08.2015 in

M.V.C.No.4010 and 4021 of 2014 passed by the XIX

Addl. Senior Civil Judge and M.A.C.T., XLI A.C.M.M.,

Bengaluru (SCCH-17) ('the Tribunal' for short).

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before

the Tribunal.

3. Brief facts of the case are, both the

petitioners are the husband and wife, while riding

their motor cycle bearing Reg.No.KA-04/HN-5455

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near Mathikere Bridge at 03:30 pm on 13.07.2014,

met with an accident with a B.M.T.C. bus bearing

Reg.No.KA-50/F-080 due to which both of them

sustained injuries. After taking treatment at

M.S. Ramaiah Hospital, they approached the Tribunal

for grant of compensation. Claim was opposed by

the B.M.T.C. The Tribunal after taking the evidence,

by impugned judgment allowed the claim petitions

awarding a sum of Rs.2,07,066/- to the husband and

Rs.6,23,570/- to the wife. Aggrieved by the same,

B.M.T.C. has filed these appeals on various grounds.

4. Heard the arguments of Sri. D. Vijaya

Kumar, learned counsel for the B.M.T.C. and

Smt. Nithya. V, learned counsel on behalf of

Sri. M.H. Prakash, learned counsel for the

petitioners.

5. It is the contention of the learned counsel for

the B.M.T.C. that there is no involvement of B.M.T.C.

bus in the alleged accident. There were no damages

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on the bus. It is the petitioners, who while going on

the bridge, fell down on their own due to imbalance

and sustained the injuries. The driver of the

B.M.T.C. came to their aid and for this reason, the

driver has been prosecuted. But, he has been

acquitted of the charges after trial. The

compensation assessed is on the higher side. Even

the Tribunal had failed to consider contributory

negligence on the part of rider of the motor cycle

and he sought for interference.

6. Per contra, learned counsel for the

petitioners has contended that the petitioners were

riding motor cycle at Mathikere Bridge. At that time

the bus came from behind and touched the motor

cycle due to which both the petitioners fell down and

sustained the injuries. The injuries sustained by

both made them for hospitalization, the rider

suffered various injuries including fracture of 2nd, 3rd

and 5th left ribs and wife has suffered a fracture of

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left tibia. They have spent huge money towards

treatment, they have suffered pain and sufferings,

loss of amenities, loss of income due to disability.

The Tribunal has rightly considered that there was

no negligence on the part of rider and fastened the

liability against B.M.T.C. and sought for dismissal of

the appeal.

7. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

8. The appeal rests on three grounds. Firstly,

non-involvement of the B.M.T.C. bus; secondly, non-

consideration of contributory negligence; thirdly, the

quantum of compensation.

9. As regarding first ground is concerned,

learned counsel for the B.M.T.C. has placed reliance

on prosecution papers and also the oral evidence let

in on behalf of B.M.T.C. They are more relied upon

the judgment in C.C.No.2300/2014 as per Ex.R1 that

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the charge against the driver of B.M.T.C. bus is not

proven. Ex.P5/Motor Vehicles Accident Report of the

B.M.T.C. bus points out that there are no visible

damages on the bus. Ex.P6/ Motor Vehicles Accident

Report of the motor cycle points out scratches on the

front left side and damages on the rear left side of

the motor cycle. There is no dispute that both

husband and wife along with the motor cycle fell to

the road and sustained the injuries. It was Sunday

the accident took place at about 03:30 pm, it was

not a busy traffic day as noticed from the material

on record. Soon after the accident, both the injured

were taken to M.S. Ramaiah Hospital and the

complaint was filed to the Police at 06:00 pm and

there is no delay in lodging the complaint. They

were in the hospital by 04:15 pm and the history

furnished that they have sustained the accident at

Mathikere Bridge at about 03:00 pm. In the

hospital, nowhere it is mentioned or stated or

reported that there was a fall from the bike. Specific

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allegation was made in the complaint at 06:00 pm

that because of the B.M.T.C. bus, both husband and

wife fell down from the scooter. Ex.P4/spot sketch is

in consonance with the mahazar drawn as per Ex.P3.

On careful perusal of spot sketch, it is pertinent to

note that the accident took place while both the bus

as well as the motor cycle were entering the bridge

from the road. At the spot, the width of the road is

24 ft. The accident took place 22 ft. towards right

side, leaving behind only 2 ft. place for the scooter

to move. This clearly points out that it is not the

case of scooter falling on its own, unless the bus has

prompted to topple. It is not at all necessary that

both the vehicles to be damaged when an accident

took place involving two vehicles. The bus being the

heavy vehicles, moves all of a sudden beside the

scooter, it will pull down the scooter due to wind

force. In such circumstances, it is the duty of the

driver of the bus to be very slow and cautious.

Hence, the argument canvassed on behalf of

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B.M.T.C. that the bus was not involved in the

accident is not persuasive in nature.

10. As regarding second point of argument

(contributory negligence) is concerned, as seen from

Ex.P4/spot sketch and also the mahazar, the bus as

well as the scooter both entered the bridge together.

While entering the bridge, we notice the scooter on

complete right side, whereas it is accepted that the

scooter is lighter vehicle shall travel on the left side

of the road, instead the petitioners have traveled on

the right side of the road. Generally, right side of

the road is meant for vehicles moving faster and left

side of the road is reserved for slower moving

vehicles. While entering the bridge, the petitioners

have not taken care to move on the left side.

Therefore, the circumstances suggest contributory

negligence in moving the motor cycle on the right

side of the road. Though there is no substantial

material to show major contributory negligence,

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minor contributory negligence can be assessed at

10% and the rider cannot be set free without

attributing any contributory negligence. Hence,

there is substance in the arguments of B.M.T.C. that

rider of the motor cycle has to be attributed 10% of

negligence for the accident to occur.

11. As regarding third point of argument

(quantum of compensation) is concerned, as it is

seen from Ex.P12/wound certificate of the pillion

rider and Ex.P7/wound certificate of the rider of the

motor cycle, the rider have suffered 4 Nos. of

multiple injuries and also fracture of 2nd, 3rd and 5th

ribs of left chest and the pillion rider has suffered

fracture of left tibia. They were under

hospitalization, whereas the pillion rider was

hospitalized for 37 days. The Tribunal has

considered the gravity of the injuries and assessed

the compensation towards pain and sufferings, loss

of amenities and discomfort, food and nourishment

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NC: 2023:KHC:43062

and attendant charges, etc. The rider has spent

Rs.90,766/- towards treatment, the pillion rider has

spent Rs.2,58,870/- towards treatment. Having

regard to the 50% of the compensation is towards

medical and incidental expenses, the actual

compensation under pain and sufferings, loss of

amenities and discomfort and loss of income during

laid-up period is lesser in quantum. Hence, the

compensation assessed for the rider at

Rs.2,07,066/- and that of the pillion rider at

Rs.6,23,570/- needs interference. Hence, the

compensation assessed by the Tribunal is maintained

as it is including the rate of interest awarded at 6%

p.a.

12. In view of above discussions, involvement

of B.M.T.C. bus is established, injuries sustained by

the petitioners is established, so also the treatment

taken and money spent and their entitlement to

claim compensation. The rider has contributed 10%

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of contributory negligence. The petitioners have not

arrayed the owner and insurer of the motor cycle

and the claim is only against B.M.T.C. Hence,

B.M.T.C. has to pay 90% of compensation to both

the petitioners. Accordingly, the appeals filed by the

B.M.T.C. merit consideration, in the result, the

following:

ORDER

i) Both the appeals are allowed-in-part.

     ii)     Impugned judgment and award is
             modified.

     iii)    Both the petitioners are entitled to
             90%        of      the       compensation
             determined by the Tribunal with 6%
             interest    p.a.   from      the   date   of
             petition till the date of deposit.

     iv)     B.M.T.C. is directed to deposit the
             compensation       within    eight   weeks