Karnataka High Court
The Managing Director vs Sri K.N. Gangadhar on 28 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.5850/2015 (MV-I)
BETWEEN:
THE MANAGING DIRECTOR
BANGALORE METROPOLITAN TRANSPORT
CORPORATION (BMTC), SHANTHINAGARA
BANGALORE - 560 027.
(OWNER OF BMTC BUS BEARING
No.KA-57-F-253)
REPRESENTED BY ITS CHIEF LAW OFFICER.
...APPELLANT
(BY SRI F S DABALI, ADVOCATE)
AND:
SRI K N GANGADHAR
SON OF NARAYANA
AGED ABOUT 38 YEARS
RESIDING AT No.18/4
NEW BINNY LAYOUT
NISHANI SHAMANNA GARDEN
BINNYPET, BANGALORE - 560 023.
...RESPONDENT
(BY SRI K T GURUDEVAPRASAD, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:10.04.2015 PASSED IN MVC No.2021/2013 ON
THE FILE OF THE ADDITIONAL JUDGE, MEMBER, MACT,
COURT OF SMALL CAUSES, MAYO HALL UNIT,
BANGALORE, AWARDING COMPENSATION OF
2
Rs.7,83,914/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the BMTC challenging the judgment and award in MVC No.2021/2013 dated 10.04.2015 passed by the Court of Motor Accident Claims Tribunal and Addl. Judge, Court of Small Causes, Bangalore (SCCH-19), Bangalore on the ground that fixing the entire responsibility on the appellant and the quantum of compensation.
2. Brief facts of the case are as under:
On 07.02.2013, at about 10.20 a.m., when the petitioner was boarding the BMTC bus bearing Registration No.KA-57-F-253 in front of Annapurna Hotel, City Market Circle, carefully cautiously by observing the traffic rules, by that time all of sudden, 3 the bus driver moved the bus in a rash and negligent manner and as a result of which, the petitioner fell down and sustained grievous injuries on vital parts of the body. The claim petition was filed under Section 166 of Motor Vehicles Act (for short "the MV Act") claiming compensation of Rs.35,00,000/-. The Tribunal has awarded compensation of Rs.7,83,914/-
with interest at 6% p.a., from the date of petition till the date of its realization. Being aggrieved by the same, the respondent-claimant has filed claim petition seeking compensation of Rs.35,00,000/-.
3. Learned counsel for the appellant-BMTC submitted that the Tribunal has committed error in fixing the entire liability on the driver of the BMTC bus though it has held that there is negligence on the part of the respondent-claimant and as well as driver of the BMTC bus. It is submitted that the respondent- claimant was treated as inpatient in the hospital for a period of 108 days but the Tribunal has wrongly held 4 that the respondent-claimant was treated as inpatient for a period of 236 days. Therefore, the amount of compensation would have been awarded for a period of 108 days for attendant, conveyance and other incidental charges. Further, it is submitted that the Tribunal has held Rs.1,500/- for a period of 236 days towards attendant, conveyance and other incidental charges and accordingly awarded Rs.3,54,000/- which is not correct, for the reason that as per the medical report, the respondent-claimant had been treated as inpatient for a period of 108 days only. Further submitted that the compensation awarded by the Tribunal under various heads is on the higher side. Therefore, prays for reducing the compensation.
4. On the other hand, learned counsel for the respondent-claimant submitted that the amount of compensation awarded by the Tribunal is not adequate but the respondent-claimant has not preferred any appeal seeking enhancement of 5 compensation. Hence, he submitted that to maintain balance between the interest of the respondent- claimant and the appellant-BMTC, the amount of compensation awarded by the Tribunal may not be disturbed and therefore, prays for dismissal of the appeal. But to this contention, learned counsel for the appellant-BMTC submitted that the respondent- claimant would be awarded just and fair compensation as per law.
5. The Tribunal has awarded compensation under various heads as follows:
Sl. Compensation
Compensation heads
No. amount (in Rs.)
1. Pain and suffering and
40,000.00
agony
2. Medical Expenses,
Attendant, conveyance,
food and diet, nourishment 5,04,314.00
and other incidental
expenses
3. Loss of income during
28,000.00
treatment period
4. Loss of future income on
account of permanent 2,01,600.00
disablement
6
5. Disappointment, discomfort,
frustration and loss of 10,000.00
amenities
Total 7,83,914.00
6. Even though the respondent-claimant has not preferred any appeal, this Court under Order XLI Rule 33 of CPC in order to award just and fair compensation, considering that the Motor Vehicle Act is a beneficial legislation wherein it envisages that whatever the amount of compensation to be entitled by the respondent-claimant that is ought to be awarded even though the respondent-claimant has not preferred any appeal. Therefore, it is the duty cast on the Court to make fair and just compensation in order to achieve the object of the Act. Therefore, the appeal filed by the appellant-BMTC can be taken up by reconsidering on the ground of quantum of compensation even in absence of filing of appeal by the respondent-claimant.
7QUANTUM:
7. As per the medical evidence which is at Ex.P10 - wound certificate, Ex.P12 to 14 - discharge summary and other medical evidences coupled with evidence of PW.3-doctor, it is proved that the respondent-claimant had suffered injuries as follows:
crush injury over front of the left leg extending to dorsum of left foot, exposing the underlying crushed muscles, vessels, nerves and fractured bone fragment, bleeding noted at the injured site, grazed abrasion over back of left elbow measuring 5 cm x 4 cm and in X-rays of left leg AP/lat, it is found that fracture of left tibia and X-ray of left foot, it is found that AP/oblique dated 07.02.2013 shows fracture base of lateral malleolus with fracture of calcaneum which are grievous in nature and the compensation to be enhanced under the head 'pain and sufferings and agony' is Rs.60,000/-. The Tribunal has awarded 8 Rs.5,04,314/- under the head 'medical expenses, attendant, conveyance, food and diet, nourishment and other incidental expenses by adding incidental expenses to the medical bills produced by the respondent-claimant. But the respondent-claimant has produced the medical bills amounting to Rs.1,51,000/- for which the Tribunal ought to have awarded compensation separately under the head 'medical expenses but committed error in clubbing the medical expenses with other incidental expenses such as attendant, conveyance, food and diet, nourishment and other incidental expenses. Accordingly, compensation of Rs.1,51,000/- is awarded under the head 'medical expenses' as the respondent-claimant has submitted medical bills which is at Ex.P15 and Ex.P16. The Tribunal has awarded a compensation of Rs.1,500/- each per head per day under the head attendant charges, conveyance, food, diet, and nourishment and other incidental expenses for a 9 period of 236 days. It is true that the respondent- claimant has suffered grievous injuries and where the respondent-claimant is not in a position to perform his duties on his own, but he has to be attended atleast by three attendants per day. Therefore, the Tribunal for each attendant per day, has awarded Rs.500/- which sum up to Rs.1,500/- for three attendants which need not be disturbed. But the Tribunal have committed error in taking the period for which the respondent-claimant treated as inpatient for 236 days. But the evidence on record i.e. 3 discharge summaries which is at Ex.12,13 and 14 prove that the total period for which the respondent-claimant is treated as inpatient comes to 108 days. Therefore, the Tribunal has committed error in calculating the period for which the respondent-claimant is treated as inpatient. Hence, Rs.1,500/- per head per day towards the attendant, conveyance, food and diet, nourishment and other incidental expenses has to be considered for 10 a period of 108 days. Accordingly, Rs.1,62,000/-(i.e. Rs.1,500/- x 108 days) is awarded under the head attendant, conveyance, food and diet, nourishment and other incidental expenses. Therefore, due to occurrence of this accident, the quantum is reduced under the head attendant, conveyance, food and diet, nourishment and other incidental expenses. The Tribunal has awarded Rs.28,000/- under the head 'loss of income during treatment period' which requires no modification. The Tribunal has awarded a compensation of Rs.2,01,600/- under the head 'loss of future income on account of permanent disablement by taking the monthly income of the respondent- claimant at Rs.7,000/- p.m. and multiplier taken is 16 and the permanent disability is assessed at 15%.
8. The accident was caused on 07.02.2013. The respondent-claimant is stated to be working as house keeper in State Bank of Mysore, J.C.Road Branch, Bangalore. Therefore, in the absence of 11 monthly income of the respondent-claimant, notional income pertaining to the accident which was taken place in the year 2013 has to be considered i.e. Rs.8,000/- as per the guidelines issued by Karnataka State Legal Services Authority. PW.3-doctor has stated that the respondent-claimant had suffered 24% of permanent disability. But the Tribunal has taken 15% and accordingly awarded the compensation under the head 'loss of future income on account of permanent disablement' which is correct. Therefore, the Tribunal is justified in holding 15% permanent disability considering the nature of injuries. The respondent-claimant has suffered several fractures. The claimant was working as house keeper in State Bank of Mysuru being hale and healthy but certainly due to injuries suffered by him in the accident, he may not be able to walk, squatting, stand alone, running, climbing upstairs and doing day today normal works. As such, he was constrained to leave the job. 12 Therefore, as per the principle laid down in the judgment of Hon'ble Apex Court in the case of Rajkumar v. Ajay Kumar and another reported in (2011) 1 SCC 343. The respondent-claimant has stated that he was aged 36 years but the Tribunal has considered the age of the respondent-claimant as 35 years and applied the multiplier 16 which is not correct. That the respondent-claimant had stated that he was aged 36 years and the appropriate multiplier to be taken is 15. Accordingly, the compensation under the head 'loss of future income on account of permanent disablement' is reassessed as :
8,000/- x 15/100x15x12= Rs.2,16,000/-.
9. Further, the Tribunal has awarded compensation of Rs.10,000/- under the head 'disappointment, discomfort, frustration and loss of amenities' which needs to be enhanced as the respondent-claimant had suffered several fractures due to which he find difficulty in walking, climbing the 13 stairs, using the Indian style toilet and other normal activities. Therefore, the compensation of Rs.1,00,000/- is awarded under the head 'loss of amenities'. Further, the Tribunal has awarded Rs.28,000/- under the head 'loss of income during treatment period' considering the monthly wage of the respondent-claimant at Rs.7,000/- for a period of 4 months. But considering the injuries sustained and also the disability as discussed above, the respondent- claimant had treated as inpatient for a period of 108 days. Therefore, the respondent-claimant atleast must not have attended the work for a period of 9 months. Accordingly, the compensation of Rs.28,000/- is awarded under the head 'loss of income during treatment period'.
10. Further, a sum of Rs.20,000/- is awarded under the head 'future medical expenses'. Thus, this Court has awarded the compensation under various Page No.13 is retyped and replaced vide Court order dated 24.11.2022. 14 heads for which the respondent-claimant is entitled as follows:
Sl. Compensation
Compensation heads
No. amount (in Rs.)
1. Pain and suffering and 60,000.00
agony
2. Medical Expenses, 1,51,000.00
3. Attendant, conveyance, 1,62,000.00
food and diet, nourishment
and other incidental
expenses
3. Loss of income during 28,000.00
treatment period
4. Loss of future income on 2,16,000.00
account of permanent
disablement
5. Disappointment, discomfort, 1,00,000.00
frustration and loss of
amenities
6. Future medical expenses 20,000.00
Total 7,37,000.00
Therefore, the appeal filed by the appellant- BMTC is liable to be allowed in part. The respondent- claimant is entitled to a compensation of Rs.7,37,000/- along with interest @6% p.a. from the date of petition till realization.
Page No.14 is retyped and replaced vide Court order dated 24.11.2022. 15 NEGLIGENCE:
11. The learned counsel for the appellant-BMTC submitted that the claimant-respondent has contributed his negligence and also as discussed by the Tribunal in the judgment but while concluding that the negligence is not fixed at any amount on contributory negligence on the part of the respondent- claimant. Therefore, the driver of the bus was not rash and negligent in causing the accident but the respondent-claimant has contributed negligence even to some extent and thus prays to allow the appeal.
12. On the other hand, learned counsel for the respondent-claimant submitted that the respondent- claimant had not caused any negligence in causing the accident and therefore, the Tribunal is correct in holding that the driver of the bus was completely rash and negligence at 100% in driving the bus which 16 requires no interference. Therefore, prays to dismiss the appeal.
13. The accident was occurred on 07.02.2013 at about 10.20 a.m., when the respondent-claimant was boarding the BMTC bus bearing Registration No.KA-57-F-253 in front of Annapurna Hotel, City Market circle. Therefore, it was a junction and traffic signals were put on and thus the bus had stopped for waiting the signal to go ahead. At that moment, the respondent-claimant had attempted for boarding the bus and at that time, the driver of the bus had suddenly moved ahead and due to which the respondent-claimant had fell down and sustained grievous injuries. It is the contention of the learned counsel for the appellant-BMTC that since the bus was not stopped as there was no bus stop at that place and bus was stopped suddenly because of signal and at that juncture of time, the accident was caused. Even though when the bus was stopped for waiting 17 signal to go ahead but at that time, keeping door open by the driver is nothing but negligence. May be the respondent-claimant have tried to board the bus in that signal but the point to be considered is that while the bus was stopped at signal, the driver was not supposed to open the door and it is the duty of the driver to close the doors, otherwise, opening the doors at signal is the indication of inviting others to board the bus. Therefore, under this circumstance, the driver can be said to be rash and negligent in driving the bus. Furthermore, even though it is not the bus stop but the bus can only to wait for signal to stop and before proceeding the bus ahead, it is the duty cast on the driver to wait and see whether any person is standing on the foot board, or trying to board the bus. After confirmation that nobody is boarding the bus or standing on the foot board, the driver shall move the bus. Further, when observing the driver who had moved the bus without seeing whether any person is 18 attempted to board the bus or not and also the door was kept open, thus, amounts to 100% negligence on the part of the driver of the bus. Therefore, in comparison of responsibility between the respondent- claimant and the driver of the bus, the duty cast on the driver of the bus is more onerous as that of respondent-claimant. The respondent-claimant being a house keeper cannot afford for auto rickshaw to travel from his office to his residence. Quite naturally, he was to depend upon public transport vehicle which is the BMTC bus referred herein. Therefore, in this constraint, the accident was caused and certainly it can be said that the driver of the BMTC bus was completely rash and negligent in driving the bus. Therefore, there is no contributory negligence arose on the part of the respondent-claimant. Hence, it is held that the driver of the BMTC bus is 100% rash and negligent in driving the bus. Since it is held that there is 100% negligence on the part of the driver of the 19 bus, the respondent-claimant is entitled for entire amount of compensation along with interest, what is determined by this Court.
14. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The claimant-respondent is entitled for compensation amount of Rs.7,37,000/-
along with interest at 6% per annum from the date of filing of the petition till deposit. iii. The amount in deposit shall be transmitted to the Tribunal.
iv. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
v. Draw award accordingly.
vi. Costs made easy.
Sd/-
JUDGE
SSD
Page No.19 is retyped and replaced vide Court order dated 24.11.2022.