Karnataka High Court

Ponnuswamy vs The Managing Director on 6 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                            NC: 2024:KHC:31092
                                                        MFA No. 8007 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 6TH DAY OF AUGUST, 2024

                                              BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 8007 OF 2019 (MV)
                      BETWEEN:
                      PONNUSWAMY
                      S/O MUNISWAMY
                      NOW AGED ABOUT 69 YEARS
                      R/AT NO.182, KACHANYAKANAHALLI
                      JIGANI CIRCLE, ANEKAL TALUK
                      BANGALORE-560 106
                                                                  ...APPELLANT
                      (BY SRI. RANGEGOWDA N R .,ADVOCATE)

                      AND:
                      THE MANAGING DIRECTOR
                      BMTC SHANTHINAGAR
                      BANGALORE-560 027
                                                                ...RESPONDENT
                      (BY SRI. NAGARAJA K.,ADVOCATE)

Digitally signed by       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
HEMALATHA A
Location: HIGH        AGAINST THE JUDGMENT AND AWARD DATED 24.04.2018
COURT OF
KARNATAKA             PASSED IN MVC NO. 4801/2016 ON THE FILE OF THE MEMBER
                      MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
                      BENGALURU (SCCH-14),     PARTLY ALLOWING THE CLAIM
                      PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
                      OF COMPENSATION.

                          THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                      JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                       NC: 2024:KHC:31092
                                     MFA No. 8007 of 2019




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


                     ORAL JUDGMENT

1. This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimant challenging by the judgment dated

24.04.2018 passed by MACT, Bengaluru in MVC

No.4801/2016.

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

stated are that on 30.06.2016 when the claimant was

pedestrian at the side of road near Puma Company,

Bommasandra Jigani Link Road, Anekal Taluk, at that

time, BMTC bus bearing registration No.KA-01-F-9273

being driven by its driver at a high speed and in a rash

and negligent manner, dashed to the claimant. As a result

of the aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

NC: 2024:KHC:31092

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

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

examined himself as PW-1, and Dr.Nagaraj.B.N. was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P11. On behalf of the respondents, one

witness was examined as RW-1. The Claims Tribunal, by

the impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of the

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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.96,400/-

along with interest at the rate of 9% p.a. and directed the

BMTC to deposit the compensation amount along with

interest. Being aggrieved, the present appeal has been

filed.

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the claimant asserts that he was earning

Rs.10,000/- per month by working as Security Guard.

However, the Tribunal has erred in taking the income as

merely as Rs.7,500/- per month.

b) Secondly, the claimant has examined the doctor as

PW-2. The Tribunal undervalued the claimant's whole-body

disability at 7%, contradicting the evidence of the doctor

that the claimant suffered 25% disability to chest.

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

sustained grievous injuries. He was treated as inpatient for

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a period of 12 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.

Considering the same, the compensation awarded by the

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

sufferings' and other incidental expenses are on the lower

side.

With the above contentions, the learned counsel

sought to allow the appeal.

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

has raised the following counter-contentions:

a) Firstly, the assertion of claimant that he was earning

Rs.10,000/- per month, remains unsubstantiated due to

lack of documentary evidence. In the absence of proof of

income, the Tribunal has assessed the income of the

claimant notionally.

NC: 2024:KHC:31092

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 7%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal under

the heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are just and reasonable and it

does not warrant interference.

d) 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 24.8.2020), the

rate of interest awarded by the Tribunal at 9% p.a. on the

compensation amount appears excessive.

With the above contentions, the learned counsel

sought to dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

NC: 2024:KHC:31092

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 30.06.2016

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.10,000/-

per month. But he has not produced any documents to

substantiate his claim. Therefore, in the absence of proof

of income, notional income has to be assessed. According

to the guidelines issued by the Karnataka State Legal

Services Authority, for accidents occurred in the year

2016, notional income shall be taken at Rs.9,500/- p.m.

11. As per wound certificate, the claimant has sustained

facial injuries with displaced comminuted fracture of

mandible, and III, IV and V ribs fractures. The doctor in

his evidence has stated that there is decreased air entry in

the left lungs and decreased expansion of lungs and X-ray

shows collapse of the left lung and assessed disability of

25% to chest. Therefore, taking into consideration the

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deposition of the doctor and injuries mentioned in the

wound certificate, the whole body disability can be taken

at 10%. The claimant is aged about 68 years at the time

of the accident and multiplier applicable to his age group

is '7'. Thus, the claimant is entitled for compensation of

Rs.57,000/- (Rs.9,500*12*5*10%) on account of 'loss of

future income'.

12. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 2

months. Consequently, the claimant is entitled for

compensation of Rs.19,000/- (Rs.9,500*2 months) under

the head 'loss of income during laid up period'.

13. The claimant was hospitalized as an inpatient for

more than 12 days in the hospital and subsequently

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also undergone

surgery. Considering the prolonged pain during treatment

as well as the permanent disability certified by the doctor,

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I am inclined to enhance the compensation awarded by

the Tribunal under the head of 'pain and sufferings' from

Rs.25,000/- to Rs.40,000/- and under the head of 'loss

of amenities' from Rs.15,000/- to Rs.30,000/-.

14. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

15. Thus, the claimant is entitled to the following

compensation:

                            As awarded       As awarded
                              by the           by this
  Compensation under
                             Tribunal           Court
    different Heads
                                  (Rs.)         (Rs.)

 Pain and sufferings                25,000         40,000

 Medical expenses                   17,400         17,400

 Food, nourishment,                 10,000         10,000
 conveyance and
 attendant charges

 Loss of income during               7,500         19,000
 laid up period
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                                              NC: 2024:KHC:31092





     Loss of amenities                   15,000         30,000

     Loss of future income               31,500         57,000

                     Total              106,400      173,400

     Less: Interim                       10,000         10,000
     compensation

             Balance                     96,400      163,400

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

ORDER

a) The appeal is allowed in part.

b) The judgment of the Claims Tribunal is modified.

c) The claimant is entitled to a total compensation of

Rs.163,400/-.

d) Following the judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE' (supra), the

enhanced compensation shall carry interest at 6%

per annum.

e) The BMTC is directed to deposit the compensation

amount along with interest from the date of filing of

the claim petition till the date of realization, within a