Karnataka High Court
N Veeraswamy vs The Managing Director on 13 November, 2024
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MFA No. 7412 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 7412 OF 2013 (MV)
BETWEEN:
N. VEERASWAMY
S/O. LATE NANJUNDAIAH
AGED ABOUT 68 YEARS,
R/O.NO.142, 2ND MAIN,
SARASWATHIPURAM,
BANGALORE - 560 008.
... APPELLANT
(BY SRI SHRIPAD V. SHASTRI, ADVOCATE)
AND:
THE MANAGING DIRECTOR,
BANGALORE METROPOLITAN,
TRANSPORT CORPORATION,
BMTC, DOUBLE ROAD, SHANTHINAGAR,
BANGALORE - 27.
BY ITS MANAGING DIRECTOR.
Digitally signed by
... RESPONDENT
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
(BY SRI D. VIJAYKUMAR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO, GRANT COMPENSATION OF RS.10,000/- BY SET ASIDE
THE ORDER OF DISMISSAL PASSED BY THE MOTOR ACCIDENT
CLAIMS TRIBUNAL, V ADDL. SMALL CAUSES JUDGE, COURT OF
SMALL CAUSES, MAYOHALL UNIT (SCCH-20) BANGALORE IN MVC
NO.8758/2006 DATED 19-12-2012, WITH COST OF INTEREST, IN
THE INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.08.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, THIS COURT PRONOUNCED THE
FOLLOWING:
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MFA No. 7412 of 2013
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
(PER: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA)
In this appeal, the petitioner has questioned
dismissal of the claim petition filed under Section 166 of
the Motor Vehicles Act (for short, 'the Act') in
MVC.No.8758/2006 dated 19.12.2012 passed by the V
Additional Small Causes Judge and 24th A.C.M.M. Member,
MACT, Bangalore (SCCH-20) (for short, 'Tribunal').
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 01.12.2006 at
about 6.30 a.m. while the petitioner was riding the cycle
near Intel Office, Airport Road, a BMTC Bus bearing
Reg.No.KA-01-/FA-294 came from behind and dashed
against the petitioner's cycle, due to which, he has
sustained injuries. After taking treatment at Manipal
Hospital under hospitalization at Mahaveer Jain hospital,
he has approached the Tribunal for grant of compensation
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of Rs.10,00,000/- claiming that, he was working as a
Security Guard at M/s. Excel Security and Allied Services,
getting salary of Rs.7,000/- per month, sustained
permanent disability, lost his earning capacity. The claim
was opposed by the BMTC on the ground that the bus in
question was not at all involved in the accident. The
Tribunal, after taking the evidence and hearing both the
parties, dismissed the claim petition as per order dated
28.02.2007. Questioning the same, the petitioner had filed
appeal in MFA.No.15452/2008. This Court, by its order
dated 17.06.2011, set aside the order of dismissal and
remanded the matter to the Tribunal affording opportunity
to the claimant to establish the injuries sustained in the
accident. Post remand, the matter was taken up again.
The Tribunal further recorded the evidence and by the
impugned judgment dismissed the claim petition again.
Aggrieved by the same, the petitioner is before this Court
on various grounds.
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4. Heard the arguments of Sri Shripad V. Shastri,
learned counsel for the petitioner and Sri D.Vijayakumar,
learned counsel for the respondent-BMTC.
5. It is the contention of the learned counsel for
the petitioner that, the accident took place on 30.11.2006
at 6.30 a.m., immediately after the accident, the
petitioner was taken to Manipal hospital, was treated as an
outpatient, the Police intimation was sent on the very
same day. Since no action was taken by the police, the
son of the petitioner on 01.12.2006 visited the police
station and filed the complaint. The mistake that was
occurred is non-mentioning of the date in the complaint.
Since the complaint was filed on 01.12.2006, the
Investigating Officer has registered FIR and also filed
charge sheet on the pretext that the accident was
occurred on 01.12.2006 instead of 30.11.2006. Since the
petitioner cannot rectify the prosecution papers, innocently
on the basis of the prosecution papers, the claim petition
was drafted that accident was on 01.12.2006. But the
petitioner has given specific evidence that the accident
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was on 30.11.2006. The Tribunal mechanically observed
the mistake in mentioning the date of accident, doubted
the very accident itself and dismissed the claim petition.
The petitioner has suffered fracture of right humerus and
ribs, aged 65 years, being a Security Guard, the injuries
disabled him permanently. The medical bills constitutes
more than Rs.90,000/-, being a poor person, doors of
justice shall not be closed against him. The medical
records clearly point out that the accident was on
30.11.2006 and he sought for assessment of the
compensation.
6. Per contra, learned counsel for respondent-
BMTC has contended that, the petitioner himself has
pleaded that the accident was on 01.12.2006 at 6.30 a.m.
and the prosecution papers also mentions the same. The
charge sheet was filed against the driver of the BMTC that
the accident was on 01.12.2006. The medical records
show that the petitioner has sustained injuries on
30.11.2006 and not on 01.12.2006. The petitioner cannot
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make a windfall of the injuries that was sustained on
30.11.2006.
6.1. It is further contended that there is
inconsistency in the claim of the petitioner claiming that
he was Cyclist, BMTC came from backside and dashed.
Wherein the medical records also goes to show that he
was a pedestrian crossing the road when the accident took
place. There is a contributory negligence on the part of the
petitioner, the Tribunal is right in dismissing the claim
petition and he has supported the impugned judgment.
7. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
8. It is an unfortunate case that, a poor person
who working as a Security Guard was thrown out of the
Court for no fault of him. The medical records clearly goes
to show that on 30.11.2006 at about 7.30 p.m., the
petitioner was brought to the Manipal hospital in an
autorickshaw by the Airport Police as he was met with an
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accident involving the BMTC bus. At Manipal hospital, the
petitioner was treated as an outpatient and he was
advised to undergo surgery. The son of the petitioner
Mr.Govindraj, who got his father discharged against the
medical advice and took him to the Mahaveer Jain hospital
where the petitioner was treated under hospitalization
from 30.11.2006 to 22.12.2006. On 01.12.2006 at about
4.15 p.m. the son of the petitioner presented the
complaint to the Airport Traffic Police Station.
9. Ex.P1 is the FIR registered by the police
wherein it is stated that on 01.12.2006 there was an
accident. But on perusal of the complaint, it is pertinent to
note that the date of accident was not at all mentioned. In
this regard, the petitioner has examined one
R.Mallikarjuna Reddy as PW.5, who is the PSI of Airport
Traffic Police Station whose testimony clearly goes to show
that though the date was not mentioned in the complaint,
he himself mentioned the date of accident as 01.12.2006
as on the said day, he received the complaint from PW.3,
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the son of the petitioner. This mistake has been continued,
and the charge sheet came to be filed and the driver of the
BMTC bus has faced the trial accordingly. Because of this
mistake, the entire version of the petitioner has been
doubted by the Tribunal.
10. The volcano of the medical records is made
available before the Tribunal. Interesting to note that on
30.11.2006 at 7.25 a.m., the petitioner was brought to the
causality department of Manipal hospital where the history
mentioned that the petitioner while crossing the road, hit
by the BMTC bus. Accordingly, the police intimation was
sent as per Ex.P.103 which has been acknowledged by the
Airport Traffic Police. Unfortunately, on 30.11.2006 since
the petitioner was discharged and went to the Mahaveer
Jain hospital, the police did not take any action. It is the
duty of the police to act on Ex.P103 that they received
intimation of RTA. Since no action by the police, PW.3 was
forced to visit the police station on 01.12.2006 to file a
complaint, but the PSI has committed mistake while
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registering FIR in mentioning the date of accident as
01.12.2006. Incidentally, complaint was filed on
01.12.2006 and not on 30.11.2006. The outpatient record
of the Manipal hospital as per Ex.P-101 goes to show that
at the Outpatient Casualty Department, the petitioner was
discharged at 10.30 a.m. itself against the medical advice.
Only on the request of the police, Ex.P5-wound certificate
was issued mentioning that the date of accident was
30.11.2006 at 7.30 a.m. medical records are very clear
that on 30.11.2006, the accident had taken place. If the
petitioner was inpatient at Mahaveer Jain hospital between
30.11.2006 to 22.12.2006, there is no question of he
going to the road and sustaining any injury on
01.12.2006. Unfortunately, the Tribunal did not observe
this aspect and simply carried away on the basis of the
prosecution papers.
11. No doubt, it is the duty on the part of the
petitioner to prove the accident. When the voluminous
records are placed before the Tribunal in the form of
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medical records from Manipal hospital and Mahaveer Jain
hospital that there was an accident on 30.11.2006 which
the petitioner has sustained fracture injuries and he was
treated under hospitalization for about 23 days, Police
intimation was sent by Manipal hospital to the Airport
Traffic Police, which has been acknowledged by the police,
they did not act on its basis. Contrary, on the basis of the
complaint of PW.3, PW.5 commits a mistake in mentioning
the date of accident as on 01.12.2006 in Ex.P1 FIR.
Hence, the petitioner has clearly explained that the
accident was on 30.11.2006 and not on 01.12.2006.
Hence, I am persuaded to accept the contention of the
petitioner.
12. Unfortunately, the learned Advocate who
represented the petitioner before the Tribunal has drafted
the claim petition that the accident was on 01.12.2006 on
the basis of the prosecution papers. Medical records were
not available to him and there is a communication gap
between the petitioner and his Advocate. Failure on the
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part of the Advocate shall not be a punishment for the
petitioner. The cross-examination of the petitioner and
also the evidence led on behalf of BMTC did not point out
any accident on 01.12.2006. In fact, the cross-
examination clearly states that there was no accident on
01.12.2006. Hence, the accident that occurred on
30.11.2006 was made as 01.12.2006 on account of
mistake committed by PW.5. Hence, there is no iota of
evidence to doubt the accident.
13. The medical records through PW.2 goes to
explain that the petitioner has suffered fracture of right
humerus and fracture of 2nd to 7th right ribs. Medical
evidence also suggests that the petitioner has sustained
30% of limb disability and 10% of whole body disability.
Having regard to the age of the petitioner at 65, the
fracture will certainly affect him in discharging the duty as
a Security Guard. Ex.P.70 is the certificate issued by the
M/s. Excel Security and Allied Services that the petitioner
was working as a Security Guard and drawing net salary of
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Rs.5,800/- per month. There is no cross-examination on
Ex.P70. Hence the medical evidence coupled with
avocation of the petitioner and his age, functional
disability of 10% assessed by PW.2 is proper and the
income of the petitioner at Rs.5,800/- is safely accepted.
Apart from hospitalization at Mahaveer Jain hospital, EX.P7
suggests that the petitioner was under hospitalization at
Hosmat hospital between 12.03.2007 to 15.03.2007 for a
period of 4 days. Thus, the total hospitalization was only
27 days. Medical bills suggests a sum of Rs.90,037/- that
has to be reimbursed to the petitioner.
14. The petitioner having sustained injuries, he has
to be compensated with Rs.20,000/- towards pain and
suffering, Rs.90,037/- towards medical expenses and he
will be laid up for minimum of 4 months and loss of
income during laid up will be at Rs.23,200/- (Rs.5,800 x 4
months), loss of amenities and discomfort has to be
compensated with Rs.20,000/- and as suggested by the
medical evidence, petitioner is required to undergo one
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more surgery for which the future medical expenses will
be Rs.10,000/-. The petitioner was attended by an
attendant, he has spent money towards food and
nourishment and conveyance, in all Rs.10,000/- has to be
assessed towards incidental expenses. The petitioner
though claims that he was aged 61 years, the medical
records suggests that he was 65 years old and his monthly
income will be Rs.5,800/- and for the age of 65 years,
applicable multiplier is 7, then the loss of future income
will be Rs.5,800/- x 12 x 7 x 10% = Rs.48,720/-. If all put
together, total compensation comes to Rs.2,21,937/-
rounded of to Rs.2,22,000/-. It is the just compensation
that the petitioner is entitled to, under the facts and
circumstances of the case.
15. As regarding liability is concerned, since the
respondent is the owner of the vehicle, is liable to pay
compensation for the act of his driver. The petitioner has
to be compensated with interest at 6% p.a. excluding
interest on future medical expenses.
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16. In view of the above discussion, the appeal
merits consideration, in the result, the following:
ORDER
i. The appeal is allowed in part;
ii. The order of dismissal of the claim petition by
the impugned judgment and award is hereby set
aside;
iii. The claim petition filed under Section 166 of the
M.V.Act is hereby allowed in part;
iv. The petitioner would be entitled to compensation
of Rs.2,22,000/- with interest at 6% per
annum from the date of petition till the date of
deposit excluding interest on future medical
expenses of Rs.10,000/-;
v. BMTC is directed to deposit the compensation
amount with interest within eight weeks from the
date of receipt of certified copy of this judgment.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
