Karnataka High Court
The Managing Director vs Mr Anil Kumar M on 13 October, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:37594-DB
MFA No. 3032 of 2016
C/W MFA No. 4517 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO.3032 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4517 OF 2016(MV-I)
In MFA No.3032/2016:
BETWEEN:
MR. ANIL KUMAR M.
S/O MUNISHAMAPPA
AGED ABOUT 30 YEARS
RESIDING AT NO.149,
KANNAMANGALA VILLAGE
AND POST,
Digitally signed by D DEVANAHALLI TALUK,
HEMA
Location: HIGH COURT BENGALURU RURAL DISTRICT-562 110.
OF KARNATAKA
SINCE DISABLED AND NOT IN A
POSITION TO UNDERSTAND AND AFFIX
SIGNATURE REPRESENTED BY HIS
NATURAL GUARDIAN MOTHER
SMT.BHAGYAMMA
W/O MUNISHAMAPPA,
AGED ABOUT 50 YEARS,
...APPELLANT
(BY SRI NAGARAJU B. P., ADVOCATE)
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NC: 2023:KHC:37594-DB
MFA No. 3032 of 2016
C/W MFA No. 4517 of 2016
AND:
THE MANAGING DIRECTOR
B.M.T.C., K.H.ROAD,
SHANTHINAGAR,
BENGALURU-560 027.
...RESPONDENT
(BY SRI D. VIJAYAKUMAR, ADVOCATE)
THIS MFA FILED UNDER SECTION 173(1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 25.02.2016
PASSED IN M.V.C. NO.3206/2014 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSES JUDGE, M.A.C.T., BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.4517/2016 (MV-I):
BETWEEN:
THE MANAGING DIRECTOR
BENGALURU METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H.ROAD
SHANTHINAGAR,
BENGALURU-560 027.
...APPELLANT
(BY SRI D. VIJAYAKUMAR, ADVOCATE)
AND:
MR. ANIL KUMAR M.
S/O SRI MUNISHAMAPPA
AGED ABOUT 30 YEARS
RESIDING AT NO.149,
KANNAMANGALA VILLAGE AND POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-561 203.
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NC: 2023:KHC:37594-DB
MFA No. 3032 of 2016
C/W MFA No. 4517 of 2016
SINCE DISABLED AND NOT IN A
POSITION TO UNDERSTAND AND AFFIX
SIGNATURE REPRESENTED BY HIS MOTHER
AND NATURAL GUARDIAN
SMT.BHAGYAMMA
W/O MUNISHAMAPPA,
AGED ABOUT 50 YEARS,
...RESPONDENT
(BY SRI NAGARAJU B. P., ADVOCATE)
THIS MFA FILED UNDER SECTION 173(1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 25.02.2016
PASSED IN M.V.C. NO.3206/2014 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSES JUDGE, M.A.C.T., BENGALURU,
AWARDING COMPENSATION OF Rs.10,90,335/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
UMESH M ADIGA J., DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals arise out of M.V.C.No.3206 of 2014 on the file of XIX Additional Motor Accidents Claims Tribunal (SCCH-17), Bengaluru (hereinafter referred to as the 'Tribunal', for short) dated 25.02.2016. Claimant has filed M.F.A.No.3032 of 2016 for enhancement of compensation and Insurer has filed M.F.A.No.4517 of 2016 challenging the quantum of compensation awarded by the Tribunal.
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NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016
2. As both the appeals arises out of a common judgment and award, they are taken up together for disposal.
3. Brief facts of the case of claimant are that on 28.06.2014 at about 7.20 p.m., claimant was crossing road near Santhe Bridge at Yelahanka. At that time, he met with an accident due to rash and negligent driving of the bus belonging to BMTC (hereinafter referred to as the 'Corporation') bearing registration No.KA-53-F-214 by its driver. As a result of which, claimant sustained grievous injuries. He was shifted to NIMHANS and thereafter, he was shifted to M.S.Ramaiah Hospital wherein he had taken treatment till 25.07.2014 and spent more than Rs.2 Lakhs towards medical expenses.
4. It is the further case of the claimants that he was working at Gottigere Sourcing Hub Private Limited and earning Rs.12,000/- per month. Due the injuries sustained in the accident, he became permanently disabled and unable to earn any income. With these -5- NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 reasons, claimant has prayed to award compensation of Rs.40 Lakhs.
5. The Corporation has contended before the Tribunal that accident had taken place due to negligence of petitioner and he tried to cross the road unmindfully and he himself dashed to the bus. The driver of the bus immediately applied the break and stopped the vehicle. There was no zebra crossing at the place of incident to cross the road by pedestrian and hence, the respondent is not liable to pay the compensation. With these reasons, prayed to dismiss the claim petition.
6. From the rival contentions of the parties, the Tribunal had framed necessary issues for consideration.
7. The claimant had examined PW.1 and 2 got marked Exs.P1 to P24. The respondent examined RWs-1 and 2 and got marked Exs.R1 to R4.
8. The Tribunal, after appreciating the pleadings and evidence on record and also on hearing the arguments -6- NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 of the learned advocates on both the sides, by the impugned judgment and award, awarded the compensation of Rs.10,90,335/-. The Tribunal held that the accident had taken place due to rash and negligent driving of bus by its driver. The Tribunal assessed age of the claimant as 28 years.; His income as Rs.12,000/- month; Disability to an extent of 31% and applied multiplier as '17' and awarded the compensation under the head 'loss of future income due to permanent disability'.
9. We have heard the arguments on both the sides.
10. The learned advocate for claimant has vehemently contended that claimant has been suffering from permanent disability to an extent of 94% as per the evidence of PW-2. However, the Tribunal erroneously considered 1/3rd of the said disability and assessed permanent disability to the whole body as 31%. The claimant was serving in a Private Company and earning Rs.12,000/- per month. The Tribunal has not considered -7- NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 the same. Due to disability, claimant himself could not appear before the Court to give the evidence. His status is as good as a vegetable. Therefore, he has been suffering from permanent disability to an extent of 100%. Therefore, prayed to award the compensation accordingly.
11. The learned advocate for Corporation has submitted that claimant has been still serving in the said firm and he has produced the records before the Tribunal, which indicates that even after the accident, he has been serving in the said firm. He has further stated that claimant did not appear before Court and let in his evidence on the contrary examined witness on the ground that he was unable to appear before court; However in the criminal case registered against the driver of the bus, for the present accident claimant had appeared before the Court and gave evidence. It clearly indicates that he is not suffering from any permanent disability as contended. In order to claim more amount of compensation, the claimant has produced some fabricated documents that he is -8- NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 suffering from permanent disability and to support his false contention, he examined his mother in the present case.
12. The learned advocate for corporation further submits that the Tribunal has assessed the income of claimant as Rs.12,000/- per month, without any basis; The accident had taken place during the year 2014, even if we follow the Schedule of income prepared by the Karnataka State Legal Services Authority, then notional income of a victim of an accident of the year 2014, is considered as Rs.8,500/- per month and on that basis, the Tribunal ought to have assessed the compensation. With these reasons, the learned advocate for the Corporation, prays for recalculation of the compensation amount.
13. The Tribunal, on appreciating the materials on record, held that accident had taken place due to rash and negligent driving of the bus by its driver. The said evidence of the Tribunal is based on the materials placed -9- NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 on record and there are no infirmities in the said findings. Therefore, we concur with the said findings of the Tribunal.
14. The Tribunal accepted the submission of the claimant that he was working at Gottigere Services Private Limited and earning Rs.12,000/- per month and on the basis of Ex.P19, accepted the income of the claimant as Rs.12,000/- per month. It is pertinent to note that PW-1 is not claimant who was said to be serving in the said firm; and author of Ex.P2 is not examined. Under these circumstances, mere production of a document is not sufficient but it should be proved. No corroborate materials are placed on record to prove Ex.P.19. Therefore, submission of the learned advocate for the Corporation is sustainable. In the absence of Ex.P19, the Court has to assess the notional income of the claimant. Normally, while settlement of the dispute pertaining to motorcycle claim petition before the Lok-Adalath, notional income of a victim of an accident of the year 2014 is taken as Rs.8,500/- P.M. Same could be applied to the facts of
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NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 the present case. The medical officer, who has examined as PW-2 has assessed disability of claimant to an extent of 94% on the ground that claimant has been suffering from permanent disability due to head injuries. It is worth to note that the claimant did not appear before the Tribunal to give evidence in this case. However he appeared as witness and gave evidence in the criminal case registered for the accident in question and withstood in the cross- examination. It indicates that he was not suffering from permanent disability to an extent of 94% as stated by PW- 2 and hence, the submission of the learned advocate for the claimant that the claimant has been living like vegetable and cannot do any work is not acceptable.
15. It is also worth to note that the accident had taken place during the month of June, 2014 and claimant has produced his pay-slip for the month of July, 2014 along with the attendance register. It indicates that he was serving in the same concern even after the accident. The learned advocate for the claimant could not respond
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NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 to the said documents. Under these circumstances, it is just and reasonable to accept that permanent disability of the claimant to the whole body shall be considered as 31%. It is not in dispute that the claimant is aged about 28 years at the time of the accident and multiplier applicable to the case on hand is '17'. Under these circumstances, the amount of compensation needs to be re-calculated.
16. There is no much dispute in respect of compensation awarded under the other heads except loss of income during laid up period and loss of future income due to permanent disability.
17. The Tribunal has awarded following amount of compensation:
Sl.No. Particulars Amount (Rs.)
1 Pain and agony 35,000
2 Medical expenses 1,91,455
3 Loss of income 60,000
4 Disability 7,58,880
5 Food and nourishment 30,000
6 Attendant charges 15,000
TOTAL 10,90,335
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NC: 2023:KHC:37594-DB
MFA No. 3032 of 2016
C/W MFA No. 4517 of 2016
18. It is also pertinent to note that the Tribunal has not awarded compensation towards loss of amenities, which needs to be awarded, looking to the injuries sustained by the claimant.
19. For the aforesaid reasons, claimant is entitled for following amount of compensation:
Sl.No. Particulars Amount (Rs.)
1 Pain and suffering 35,000
2 Medical expenses 1,91,455
3 Loss of income during laid up 25,500
period (8500X3)
4 Loss of amenities 35,000
5 Loss of future earning capacity 5,37,540
due to permanent disability
(8500X12X17X31%)
6 Special diet, nourishment, 45,000
miscellaneous expenses and
attendant charges
TOTAL 8,69,495
There is a reduction of Rs.2,20,840/- in the amount of compensation awarded by the Tribunal.
20. It is not in dispute that the respondent is the owner of the bus. Therefore, he is liable to pay the compensation.
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NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016
21. For the aforesaid reasons, we pass the following:
ORDER i. M.F.A.No.3032 of 2016 and M.F.A.No.4517 of 2016 are disposed of.
ii. The impugned judgment and award passed by the Tribunal in M.V.C.No.3206 of 2014 dated 25.02.2016 is modified as under:
a) The claimant is entitled for compensation of Rs.8,69,495/- (Rupees Eight Lakhs Sixty Nine Thousand Four Hundred Ninety Five only) as against Rs.10,90,335/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its payment.
b) The Respondent/Corporation is directed to pay the said amount of compensation, within six weeks from the date of receipt of certified copy of this order.
c) Whatever the amount is deposited by the Corporation in M.F.A.No.4517 of 2016 shall be
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NC: 2023:KHC:37594-DB MFA No. 3032 of 2016 C/W MFA No. 4517 of 2016 transmitted to the Tribunal to pay to the claimant towards compensation.
d) Deposit and release of the compensation amount is as ordered by the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE DH