Karnataka High Court

Abhishek B vs The Md Of Bmtc on 1 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                -1-
                                                               NC: 2024:KHC:30516
                                                          MFA No. 8016 of 2018
                                                      C/W MFA No. 6413 of 2018



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 1ST DAY OF AUGUST, 2024

                                             BEFORE
                         THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 8016 OF 2018 (MV)
                                               C/W
                      MISCELLANEOUS FIRST APPEAL NO. 6413 OF 2018(MV)


                      IN MFA NO 8016/2018

                      BETWEEN:
                      ABHISHEK B
                      S/O BORAIAH
                      AGED ABOUT 21 YEARS
                      R/AT NO.126, II MAIN
                      II CROSS, LUGGERE
                      CHOWDESHWARI NAGAR
                      BANGALORE-58
                                                                     ...APPELLANT
                      (BY SRI. SHRIPAD V SHASTRI .,ADVOCATE)

Digitally signed by   AND:
HEMALATHA A           THE MD OF BMTC
Location: HIGH
COURT OF              CENTRAL OFFICE,
KARNATAKA             SARIGE BHAVANA, K H ROAD
                      DOUBLE ROAD, SHANTHINAGAR
                      BANGALORE, BY ITS MANAGER
                                                                   ...RESPONDENT
                      (BY SRI.D VIJAYAKUMAR., ADVOCATE)

                           THIS MFA IS FILED UNDER SECTION] 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED:05/06/2018,
                      PASSED IN MVC NO.1916/2017, ON THE FILE OF THE XIX
                      ADDITIONAL SMALL CAUSES JUDGE & MACT, (SCCH-17),
                           -2-
                                         NC: 2024:KHC:30516
                                    MFA No. 8016 of 2018
                                C/W MFA No. 6413 of 2018



BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND     SEEKING     ENHANCEMENT        OF
COMPENSATION.

IN MFA NO 6413/2018

BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
DOUBLE ROAD, K H ROAD
SHANTHINAGAR, BANGALROE-560027.
                                              ... APPELLANT
(BY SRI. D VIJAYA KUMAR, ADVOCATE)


AND:
ABHISHEK B
S/O BORAIAH
AGED ABOUT 21 YEARS
R/AT NO.126, II MAIN
II CROSS, LUGGERE
CHOWDESHWARI NAGAR
BANGALORE-58
                                             ...RESPONDENT
(BY SRI. SHRIPAD V SHASTRI .,ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 05.06.2018
PASSED IN MVC NO.1916/2017 ON THE FILE OF THE 19TH
ADDITIONAL SMALL CAUSE JUDGE, MACT, BENGALURU (SCCH-
17) AWARDING COMPENSATION OF RS.12,58,000/- WITH
INTEREST AT 7.5% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
                               -3-
                                               NC: 2024:KHC:30516
                                        MFA No. 8016 of 2018
                                    C/W MFA No. 6413 of 2018



       THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

                       ORAL JUDGMENT

1. MFA No.8016/2018 is filed by the claimant and MFA

No.6413/2018 is filed by the Corporation under Section

173(1) of Motor Vehicles Act, 1988 (hereinafter referred to

'the Act') being aggrieved by the judgment dated

05.06.2018 passed by the XIX Additional SCJ & MACT,

Bengaluru in MVC No.1916/2017.

2. Facts giving rise to the filing of the appeals briefly

stated are that on 03.03.2017 at about 10.00 a.m. when

the claimant was riding pillion in a motorcycle bearing

Registration No.KA-01/HP-6354 ridden by one Dilip

heading towards Sunkadakatte from Chowdeshwarinagar

on Magadi Main road, in front of Ganga electronics,

Kottigepalya, Bengaluru. At that time, the driver of the

BMTC Bus bearing Registration No.KA-01/F-8828 was

moving on the left side of motorcycle and suddenly the

driver took the Bus towards right side in rash and

NC: 2024:KHC:30516

negligent manner and caused accident dashing

motorcycle. As a result of the aforesaid accident, the

claimant fell down and rear wheel of bus ran over his right

foot and he sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section 166 of the

Act, seeking compensation. It was pleaded that he spent

significant amount towards medical expenses, conveyance

charges and other related costs. It was further pleaded

that the accident occurred solely on account of rash and

negligent driving of the offending vehicle by its driver.

4. Upon service of notice, the respondent appeared

through counsel and filed written statement denying the

averments made in the claim petition.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

NC: 2024:KHC:30516

the evidence. The claimant, in order to prove the case,

examined himself as PW-1, another witness was examined

as PW-2 and Dr.Avinash Parthasarathy was examined as

PW-3, and got exhibited documents namely Ex.P1 to

Ex.P21. On behalf of the respondents, one witness was

examined as RW-1 and no document was exhibited. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.12,58,000/- along with interest at the

rate of 7.5% p.a. and directed the Corporation to deposit

the compensation amount along with interest. Being

aggrieved, the present appeals have been filed.

6. The learned counsel for the Corporation has raised

the following submissions:

a) Firstly, the case of the claimant is that the offending

vehicle came from the back side and hit the motorcycle

NC: 2024:KHC:30516

and due to the impact, the rider as well as the pillion rider,

who is the claimant herein, fell down from the motorcycle

and sustained grievous injuries. As per Ex.P5-IMV report,

there was no damage on the backside of the motorcycle

and there was no damage or mark on the front portion of

the Bus. Therefore, it is very clear that the Bus did not hit

the motorcycle.

b) Secondly, the rider of the motorcycle tried to

overtake the Bus from the left side and dashed into the

Bus. Due to the impact, both rider and pillion rider i.e. the

claimant fell down and suffered injuries. The Tribunal has

not considered this aspect of the matter. The Tribunal has

relied on the sketch, which was prepared after the

accident. The witness of the Mahazar is not an eyewitness

to the accident. The Tribunal, in relying on the sketch, has

erred in holding that the driver of the Bus alone was

negligent in causing the accident.

c) Thirdly, in the complaint, it is stated that the rider of

the motorcycle also suffered injuries. However, no medical

records have been produced to show that the rider of the

NC: 2024:KHC:30516

motorcycle received treatment and he has not filed any

claim petition. Hence, he submits that the rider of the

motorcycle himself was negligent in causing the accident.

d) Fourthly, except the evidence of the claimant, there

is no evidence from V. Dilip, rider of the motorcycle, or

any other independent eyewitness to prove the negligence

on the part of the driver of the Bus. In fact, the driver of

the Bus was examined as RW-1 and has categorically

stated that the rider of the motorcycle tried to overtake

the Bus from the left side and dashed into the Bus, due to

which he fell down and suffered injuries. The Tribunal,

without considering this aspect of the matter, has erred in

holding that the driver of the Bus alone was negligent in

causing the accident.

e) Fifthly, in respect of the quantum is concerned, he

has submitted that at the time of the accident, the

claimant was a student and he was not an earning

member of the family. Due to accidental injuries, there is

no future loss. In fact, he has continued his studies.

Therefore, the compensation awarded by the Tribunal

NC: 2024:KHC:30516

under the head of future loss, is contrary to the material

available on record.

f) Sixthly, the claimant has examined the doctor as PW-

3. Even though he was not a treated doctor, he has

assessed the disability of 80% to particular limb and 30%

to the whole body. But the whole body disability assessed

by the Tribunal at 50% is on higher side and the same is

beyond the evidence of the doctor. The Tribunal has not

given any reason to assess the whole disability to the

extent of 50%.

g) Seventhly, due to the accident, the claimant suffered

minor injuries. He was treated as inpatient only for a

period of 13 days. Considering the same, the

compensation awarded by the Tribunal under the heads of

pain and suffering, loss of amenities and other incidental

expenses are on higher side.

h) Lastly, in light of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS -

V- VENKATESHAN.V AND OTHERS (MFA 5896/2018

AND CONNECTED MATTERS DISPOSED OF ON

NC: 2024:KHC:30516

24.8.2020), the rate of interest awarded by the Tribunal

at 7.5% p.a. on the compensation amount is on the higher

side.

With the above contentions, the learned counsel

sought to allow the appeal filed by the Corporation by

dismissing the appeal filed by the claimant.

7. On the other hand, the learned counsel for the

claimant has raised the following submissions:

a) Firstly, immediately after the accident, the claimant

lodged a complaint. In the complaint, it is stated that the

driver of the Bus, while avoiding a vehicle passing on the

right side of the Bus, suddenly took a left turn and hit the

motorcycle, which was proceeding to the left side of the

Bus. Due to the impact, the claimant as well as the rider of

the motorcycle fell down, and the back wheel of the Bus

passed over the leg of the claimant, crushing it due to the

impact. Even the sketch, which has been produced as

Ex.P3, clearly tallies with the complaint. The Tribunal,

after considering the complaint and the sketch, has rightly

- 10 -

NC: 2024:KHC:30516

held that the driver of the Bus alone was negligent in

causing the accident.

b) Secondly, in respect of the quantum of

compensation, at the time of the accident, the claimant

was aged about 20 years and was a student, studying in

ITI. Due to the accidental injuries, the right leg of the

claimant was amputated below the knee. PW-2, the

doctor, has stated in his evidence that the claimant has

suffered a disability of 80% to the particular limb.

However, the Tribunal has erred in taking the whole body

disability at 50%. Due to the amputation of the leg, the

claimant was unable to perform his day-to-day work. The

Tribunal has failed to assess the functional disability as

100%. The Tribunal has also not granted any

compensation towards future prospects.

c) Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 13 days. Even after discharge from the

hospital, he was not in a position to discharge his regular

work. He has suffered lot of pain during treatment.

- 11 -

NC: 2024:KHC:30516

Considering the same, the compensation granted by the

Tribunal under the heads of 'loss of amenities', 'pain and

sufferings', 'future medical expenses' and other heads are

on the lower side. Hence, he sought for enhancement of

compensation.

With the above contentions, the learned counsel

sought to allow the appeal filed by the claimant by

dismissing the appeal filed by the Corporation.

8. Heard the learned counsel for the parties and

perused the judgment and award and original records.

REG:NEGLIGENCE

9. The case of the claimant as per complaint (Ex.P2) is

that on 03.03.2017 at about 10.00 a.m., the claimant was

riding pillion in a motorcycle bearing Registration No.KA-

01/HP-6354 rode by one Dilip heading towards

Sunkadakatte from Chowdeshwarinagar on Magadi main

road, in front of Ganga Electronics, Kottigepalya,

Bengaluru. At that time, the driver of BMTC Bus bearing

Registration No.KA-01/F-8828 was moving on the right

- 12 -

NC: 2024:KHC:30516

side of motorcycle and suddenly the driver took the bus

towards left side in rash and negligent manner and caused

accident dashing motorcycle. Due to impact, the claimant

fell down and rear right wheel of bus ran over his right

foot and sustained grievous injuries and was hospitalized.

Immediately after the accident, the claimant was shifted

to Lakshmi Hospital, wherein first aid was administered

and then shifted to Prestine Hospital, where he took

treatment as an inpatient. After recovering from the

injuries, the claimant filed a claim petition.

10. Under the Motor Vehicles Act in the claim petition

before the Claims Tribunal the standard of proof is much

below than what is required in a criminal case as well as in

the civil case. No doubt, before the Tribunal, there must

be some material on the basis of which the Tribunal can

arrive or decide things necessary to decide for awarding

compensation, but the Tribunal is not expected to take or

to adopt a nicety of a civil or criminal case. After all it is a

summary enquiry and it is the legislation for the welfare of

- 13 -

NC: 2024:KHC:30516

the Society. The proceedings under the Motor Vehicles Act

are not akin to the proceedings under civil rules. Hence,

strict rules of evidence are not required to be followed in

this regard. In the case of MANGLA RAM -v- ORIENTAL

INSURANCE COMPANY LIMITED (2018) 5 SCC 656,

the Hon'ble Apex Court has held as hereinbelow:

"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."

- 14 -

NC: 2024:KHC:30516

11. To prove the claimant's case, the claimant himself

testified as PW-1. In his testimony, he reiterated the

statement made in the claim petition. In the claim petition,

it was stated that the bus was moving alongside the

motorcycle when it suddenly swerved to the left, colliding

with the motorcycle. Following a thorough investigation,

the Investigating Officer filed a charge sheet against the

Bus driver for rash and negligent driving. During cross-

examination, PW-1 denied the suggestion that the

accident occurred due to negligence of rider of the

motorcycle and the driver of the bus did not cause the

accident. In the cross-examination of PW-1, nothing

worthwhile has been elicited by the respondent. The Bus

driver, examined as RW-1 testified that the rider of the

motorcycle was travelling at high speed and riding rashly

and negligently when they collided with the front left side

of the Bus. However, during cross-examination, RW-1 was

denied the suggestion that another vehicle was ahead of

the bus and he attempted to overtake it by moving the

- 15 -

NC: 2024:KHC:30516

bus from right to left, causing the accident and colliding

with the motorcycle.

12. Thus, the Police drawn a sketch and panchanama

(Ex.P3 and 4) which reveal that the accident site runs in

an East-West direction, with a curved road where both

vehicles were heading West to South. The motorcycle was

on the left side of the road, while the bus was in the

middle. As the bus navigated the curve, it turned towards

the left side of the road, causing the accident by colliding

with the motorcycle. The records clearly indicate that the

motorcycle was traveling on the left side, and the bus was

in the middle of the road. As the bus proceeded, it

suddenly moved to the left and came into contact with the

motorcycle, resulting in the accident and injuries to the

claimant.

13. The respondent's witness, RW-1, did not dispute the

sketch and did not file any complaint against the

motorcycle rider. Following a thorough investigation, the

Police filed a charge sheet against the bus driver.

- 16 -

NC: 2024:KHC:30516

Considering the claimant's evidence, IMV report, sketch,

and complaint, the Tribunal rightly concluded that the

accident occurred due to the negligent driving of the bus.

REG:QUANTUM OF COMPENSATION:

14. At the time of the accident, the claimant was

approximately 20 years old and a student pursuing studies

at ITI. Although, he was not an earning member of the

family, considering his future, the notional income has to

be assessed. According to the guidelines issued by the

Karnataka State Legal Services Authority, for accidents

occurred in the year 2017, notional income shall be taken

at Rs.11,000/- p.m.

15. As per wound certificate, the claimant has sustained

irregular crush injury over the right foot, X-ray of right

foot shows multiple tarsal dislocation and fracture, bone

deep laceration over left foot on ventral aspect. PW-3, the

doctor has stated in his evidence that the claimant has

suffered disability of 80% to particular limb and 40% to

the whole body. Considering the evidence of the doctor,

- 17 -

NC: 2024:KHC:30516

PW-3 and injuries mentioned in the wound certificate,

medical records, I am of the opinion that the whole body

disability is taken at 40%.

16. Regarding future prospects, at the time of the

accident, the claimant was aged about 20 years old and a

student. Due to the accidental injuries sustained, his right

leg was amputated below the knee, resulting in a

permanent functional disability. Therefore, the claimant is

entitled to consideration of future prospects in view of law

laid down by the judgment of the Hon'ble Apex Court in

the case of PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA

vs. STATE EXPRESS TRANSPORT CORPORATION LTD.

2020' SCC Online SC 601.

17. As per the law laid down by the Hon'ble Supreme

Court in the case of NATIONAL INSURANCE CO. LTD. -v-

PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], an

addition of 40% of the established income towards 'future

prospects'. Thus the monthly income comes to

- 18 -

NC: 2024:KHC:30516

Rs.15,400/- and multiplier applicable to his age group is

'18'. Thus, the claimant is entitled for compensation of

Rs.13,30,560/- (Rs.15,400*12*18*40%) on account of

'loss of future income'.

18. The compensation awarded towards 'loss of future

income' is inclusive of future prospects of Rs.3,80,160/-

(Rs.4,400*12*18*40%).

19. Considering the nature of injuries suffered by the

claimant and material available on record, the

compensation awarded by the Tribunal under the heads of

'pain and sufferings', 'loss of amenities' and other

incidental expenses are just and reasonable.

20. Although the evidence of the doctor suggests that

the claimant requires approximately Rs.1,50,000/- for

removal of implants, the claimant has not provided an

estimate for future surgery. Considering the nature of the

injuries and the evidence of the doctor, the compensation

- 19 -

NC: 2024:KHC:30516

awarded by the Tribunal under the head of 'future medical

expenses' is just and reasonable.

21. Thus, the claimant is entitled to the following

compensation:

                              As awarded          As awarded
     Compensation under               by the        by this
       different Heads            Tribunal           Court
                                      (Rs.)          (Rs.)
 Pain and sufferings                   1,25,000       1,25,000
 Medical expenses                        9,000           9,000
 Food, nourishment,                     35,000          35,000
 conveyance and
 attendant charges
 Loss of amenities                     1,00,000        100,000
 Loss of future income                 8,64,000      13,30,560
 Future medical expenses                75,000          75,000
 Marriage Prospects                     50,000          50,000
                 Total           12,58,000          17,24,560

22. In the result, the following order is passed: