Karnataka High Court

Sri.Prakash C vs The Managing Director Bmtc on 11 January, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                          NC: 2024:KHC:1654
                                                      MFA No. 7070 of 2021




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 11TH DAY OF JANUARY, 2024
                                           BEFORE
                      THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                     MISCELLANEOUS FIRST APPEAL NO. 7070 OF 2021 (MV-I)

                   BETWEEN:

                      SRI.PRAKASH C
                      S/O CHANNAIAH
                      AGED ABOUT 48 YEARS
                      R/AT NO.18/1, 2ND CROSS
                      2ND BLOCK
                      MUNESHWARASWAMY ROAD
                      KANAKANAPALYA
                      BENGALURU-560 011.
                                                               ...APPELLANT
                   (BY SRI GIRIMALLAIAH.,ADVOCATE)
                   AND:
                      THE MANAGING DIRECTOR, BMTC
                      K H ROAD
                      SHANTHINAGAR
                      BENGALURU-560 027.
                                                             ...RESPONDENT

                   (BY SRI F.S.DABALI.,ADVOCATE)
Digitally signed
by
GAVRIBIDANUR
SUBRAMANYA              THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF
GUPTA
SREENATH           MV ACT AGAINST THE JUDGMENT AND AWARD DATED
Location: HIGH     07.09.2021 PASSED IN MVC NO.4019/2019 ON THE FILE OF
COURT OF
KARNATAKA          THE IX ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL
                   CAUSES AND MEMBER - MACT-7, BENGALURU, PARTLY
                   ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
                   SEEKING ENHANCEMENT OF COMPENSATION

                        THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                                   NC: 2024:KHC:1654
                                             MFA No. 7070 of 2021




                            JUDGMENT

This appeal is preferred by the appellant-claimant

challenging the judgment and award dated 7th September 2021

passed in MVC.No.4019/2019 by the IX Additional Small Causes

Judge, Court of Small Causes and the Member - MACT-7,

Bengaluru (for short 'the Tribunal'). This appeal is founded

on the premise of inadequate and meager compensation

awarded by the Tribunal.

2. Parties to the appeal shall be referred to as per their

status before the Tribunal.

3. Brief facts of the case are as under:

On 1.7.2019 at about 10.30 p.m. when the claimant was

traveling on Honda Activa vehicle bearing Registration No.KA-

05-K-5626 on N.R. Road, near Andhra bank, at that time,

B.M.T.C. bus bearing Registration No.KA-01-FA-1887 came in

a high speed and rash and negligent manner and dashed

against the motorcycle of the claimant. Due to the impact of

the accident, the claimant fell down and sustained severe

injuries to his left leg and immediately he was taken to Sanjay

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Gandhi hospital, where he took treatment as an in-patient and

underwent operation to his left leg. According to the doctor,

the claimant suffered permanent disability, which reduces his

working capacity. It is stated that prior to the occurrence of

accident, claimant was hale and healthy and running

newspaper agency in the name of 'Saptagiri News Agency and

Distributor' and earning Rs.20,000/- per month and that the

accident occurred due to the rash and negligent driving of the

B.M.T.C bus by its driver. Hence, the claimant preferred a

claim petition seeking compensation.

3.1 On service of notice, respondent appeared through

his counsel, filed written statement and denied the averments

made in the claim petition including age, avocation and income

and pleaded that the accident occurred due to the negligence of

the claimant and sought for dismissal of the petition.

3.2 On the basis of the pleadings, the Tribunal framed

relevant issues for consideration.

3.3 In order to substantiate the issues and establish the

case, the claimant got examined himself as PW.1 and the

doctor as PW.2 and got marked the documents as per Ex.P1 to

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Ex.P15. On the other hand, the respondent got examined

driver of the BMTC bus as RW.1.

3.4 On the basis of the material evidence, both oral and

documentary, the Tribunal awarded a total compensation of

Rs.1,91,000/- along with interest at 6% per annum.

3.5 Being aggrieved by the meager compensation

awarded by the Tribunal, the claimant is before this Court

seeking enhancement of compensation.

4. It is the vehement contention of leaned counsel for

the appellant that the Tribunal misdirected itself and not

awarded just and proper compensation in accordance with the

material placed on record and awarded meager compensation

by reducing the disability to 10% contrary to the evidence

adduced by the doctor, who is an expert. He also contended

that under the heads of pain & suffering; loss of earning during

rest period & attendant charges; and loss of amenities, the

Tribunal awarded meager and insufficient compensation

contrary to the material evidence. Hence, he seeks for

enhancement of compensation.

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5. Per contra, learned counsel representing the

respondent/BMTC contends that the Tribunal awarded just and

reasonable compensation under all the heads, in accordance

with the material evidence, both oral and documentary and the

same does not call for interference. He also contends that the

disability assessed by the doctor is on the higher side and the

Tribunal rightly reduced the same to 10%, which is

sustainable. On these grounds, he seeks for dismissal of the

appeal.

6. Having heard learned counsel for the parties and

having perused the impugned judgment and award, it is not in

dispute that the accident occurred on 1.7.2019 between the

two wheeler ridden by the claimant and the BMTC bus. In

order to substantiate the same, the claimant adduced evidence,

produced documents - Ex.P1 to Ex.P15, the police records as

well as medical records. The police records - Ex.P1 to Ex.P9

go to show the involvement of the vehicle, the rashness and

negligence on the part of driver of the offending vehicle, which

have not been questioned. Hence the Tribunal rightly fixed the

negligence and the liability on the driver of the bus and

consequently directed the BMTC to pay the compensation.

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7. Now coming to the age, income and avocation of the

claimant, though the claimant pleaded that he was earning

Rs.20,000/- per month, nothing is placed on record to prove

the same. The Tribunal taken the income to be Rs.10,000/-

per month, whereas the Legal Services Authority chart

prescribes the notional income of Rs.14,000/- per month for

the accident of the year 2019. Accordingly, the same is taken

as income for computation in the present case as against

Rs.10,000/- awarded by the Tribunal. The age of the claimant

as on date of the accident is 46 years. The appropriate

multiplier is '13' which is rightly taken by the Tribunal and the

same does not call for interference.

8. The doctor adduced the evidence as PW.2 and

deposed that the claimant sustained severe injuries and

assessed the disability at 14.33% to the whole body and 43%

to the left lower limb. The Tribunal tried to sit on the opinion

expressed by the doctor with regard to disability of the claimant

at 14.33%, which cannot be accepted unless there is contrary

material placed on record and cogent evidence adduced by the

BMTC by producing second opinion or any other medical

opinion to contradict the statement of the doctor/PW.2. Under

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the circumstances, the opinion expressed by the expert has to

be taken and accepted on its face value and accordingly the

disability is taken at 14.33%.

9. In view of the above, the loss of future income due to

the disability would be Rs.14,000/- x 12 x 13 x 14.33% =

Rs.3,12,967/- as against Rs.1,56,000/- awarded by the

Tribunal.

10. Towards 'pain and suffering', the Tribunal awarded a

compensation of Rs.10,000/-, which is on the lower side and I

deem it appropriate to award Rs.25,000/- under this head.

11. Towards 'loss of earning during rest period and

attendant charges', the Tribunal awarded a compensation of

Rs.15,000/-, which is on the lower side. Considering the fact

that the claimant sustained disability of 14.33% to the whole

body, atleast three months is required to recuperate and get

back to normal day to activities. In view of this Court

enhancing the income to Rs.14,000/- per month, Rs.42,000/-

(Rs.14,000/- x 3) is awarded under this head.

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12. Towards loss of amenities, the Tribunal awarded

Rs.10,000/-. I am in agreement with the learned counsel for

the claimant that it is on the lower side. Hence, I deem it

appropriate to award Rs.25,000/- under this head.

13. Towards conveyance, food and nourishment, the

Tribunal has not awarded any amount. I deem it appropriate to

award Rs.15,000/- under this head.

14. Towards future medical expenses, the doctor/PW.2

opined that Rs.20,000/- is required and the same is awarded

under this head and the same shall not carry any interest.

15. In view of the above discussion, the

appellant/claimant would be entitled to total compensation of

Rs.4,39,957/- as against Rs.1,91,000/- awarded by the

Tribunal, as mentioned in the table below:

Sl.         Head of compensation                   Amount of
No.                                              compensation
                                                    awarded

1     Loss of future income                      Rs.3,12,967=00

2     Pain and suffering                         Rs.   25,000=00

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3   Loss of earning during rest period            Rs.   42,000=00
    and attendant charges

4   Loss of amenities                             Rs.   25,000=00

5   Conveyance,       food              and       Rs.   15.000=00
    nourishment
6   Future medical expenses                       Rs.   20,000=00

                   Total                       Rs.4,39,967=00

16. Accordingly, I pass the following:

ORDER

i) The appeal is allowed in part;

ii) The appellant/claimant is entitled to total

compensation of Rs.4,39,967/- (Rupees four

lakhs thirty-nine thousand nine hundred and

sixty-seven only) as against Rs.1,91,000/-

awarded by the Tribunal along with interest at

6% per annum from the date of petition till

realization. However, future medical expenses

shall not carry any interest.

iii) The impugned judgment & award passed by the

Tribunal in MVC No.4019/2019 is modified

accordingly.

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iv) The enhanced compensation amount shall be

paid by the respondent with interest at 6% per

annum, within a period of four weeks from the