Karnataka High Court
The Division Manager vs Sri T R Anantha Narayana on 16 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:40888
MFA No. 461 of 2020
C/W MFA No. 7457 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 461 OF 2020 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 7457 OF 2019(MV)
IN MFA 461/2020
BETWEEN:
MR T R ANANTHA NARAYANA
S/O. T. R. RAMAIAH
AGED ABOUT 65 YEARS
R/AT NO. 129, 5TH MAIN ROAD
6TH CROSS, NEAR PRARTHANA SCHOOL
R.K. LAYOUT, BSK 2ND STAGE
PADMANABHANAGAR
BENGALURU-560 070
NOW R/AT NO.12, 16TH MAIN ROAD
JAYANAGARA, HBCS LAYOUT
PADMANABHANAGAR
BENGALURU-560 063.
Digitally signed
by ...APPELLANT
DHANALAKSHMI
MURTHY (BY SRI. GURUDEV PRASAD K T., ADVOCATE)
Location: High
Court of AND:
Karnataka
THE DIVISIONAL MANAGER
BENGALURU METROPOLITAN
TRANSPORT CORPORATION
K.H. ROAD, SHANTHINAGAR
BENGALURU-560 027.
...RESPONDENT
(BY SRI.D VIJAYA KUMAR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2019
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NC: 2023:KHC:40888
MFA No. 461 of 2020
C/W MFA No. 7457 of 2019
PASSED IN MVC NO.5518/2018 ON THE FILE OF THE XV
ADDITIONAL SMALL CAUSES JUDGE AND XXIII A.C.M.M.,
MEMBER, M.A.C.T., BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 7457/2019
BETWEEN:
THE DIVISIONAL MANAGER
BENGALURU METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICES, K.H. ROAD
SHANTHINAGAR, BENGALURU-560 027.
...APPELLANT
(BY SRI. D VIJAYA KUMAR, ADVOCATE)
AND:
SRI T R ANANTHA NARAYANA
S/O. T. R. RAMAIAH
AGED ABOUT 65 YEARS
R/AT NO. 129, 5TH MAIN ROAD
6TH CROSS, NEAR PRARTHANA SCHOOL
R.K. LAYOUT, BSK 2ND STAGE
PADMANABHANAGAR
BENGALURU-560 070
PREVIOUS ADDRESS:
NOW R/AT NO.12, 16TH MAIN ROAD
JAYANAGARA, HBCS LAYOUT
PADMANABHANAGAR, BENGALURU-560 063.
...RESPONDENT
(BY SRI. K T GURUDEVA PRASAD, ADVCOATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.05.2019
PASSED IN MVC NO.5518/2018 ON THE FILE OF THE XV
ADDITIONAL SMALL CAUSES JUDGE AND XXIII A.C.M.M.,
MEMBER, M.A.C.T., BENGALURU, AWARDING COMPENSATION OF
RS.3,39,900/- WITH INTEREST AT 9% (EXCLUDING FUTURE
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NC: 2023:KHC:40888
MFA No. 461 of 2020
C/W MFA No. 7457 of 2019
MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL ITS
REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA No.461/2020 has been filed by the claimant and MFA No.7457/2019 has been filed by the Corporation under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') being aggrieved by the judgment dated 06.05.2019 passed by MACT, Bengaluru in MVC No.5518/2018.
2. Facts giving rise to the filing of the appeals briefly stated are that on 22.08.2018 at about 08.00 p.m., the claimant was standing on the extreme left side mud foot path of Mysuru road, near Madhu Petrol Bank Junction, Kengeri, Bengaluru with due care, at that time, the driver of BMTC Bus bearing Registration No.KA-01/FA-1893 drove the same in a rash and negligent manner, so as to endangering human life came at high speed from Kengeri Bus Stand and proceeding towards Uttarahalli main road -4- NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 and took sudden left turn on the mud foot path and came on wrong lane and dashed against the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance charges, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the -5- NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 claimant is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.R. Shashikanth was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P25. On behalf of the respondent, one witness was examined as RW-1 and got exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the 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.3,39,900/- (after deducting Rs.1,50,000/- which has paid by the BMTC as interim compensation) along with interest at the rate of 9% p.a. and directed the Corporation to deposit the compensation amount along with interest (excluding the interest for future medical -6- NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 expenses). Being aggrieved, the present appeals have been filed by the Corporation as well as by the claimant.
6. The learned counsel for the Corporation has raised following counter contentions:
a) Firstly, the accident occurred due to negligence of claimant himself. The driver of the Bus was moving the Bus on left side of the road after following traffic rules. The claimant without observing the moving Bus, tried to cross the road and accident was occurred and suffered injuries and there was no fault of the driver of the Bus. Even though the claimant claims that the complaint has been lodged against the driver of the Bus stating that the driver of the Bus was negligent in causing the accident, the complainant has not been examined to prove the case of the claimant. The trial Court only on the basis of Police document morefully at Ex.P3/sketch and Ex.P4/spot mahazar which drawn by the Police has held that the driver of the Bus was negligent in causing the accident.
Infact, the sketch drawn by the Police is contrary to the -7- NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 material available on record and they have not prepared the sketch. The Corporation has examined the driver of the Bus and he has categorically stated that the claimant was negligent in causing the accident. He further contended that the driver of the Bus has lodged the complaint against the claimant, but the Police have refused to register the complaint. He further contended that the specific case of the claimant that he was standing near the Bus stop and waiting for the Bus with one Krishnegowda. But the claimant has not examined the said Krishnegowda to prove the case of the claimant. Therefore, the finding of the Tribunal that the driver of the Bus alone was negligent in causing the accident, has error apparent on the face of the records.
b) Secondly, the claimant was aged more than 65 years. Even though the claimant claims that he was working as LIC Agent and was earning Rs.60,000/- per month, he has not produced Income Tax Return to prove that he was earning Rs.60,000/- per month. In the -8- NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 absence of proof of income, the monthly income assessed by the Tribunal Rs.9,000/- is on higher side.
c) Thirdly, the claimant has examined the doctor as PW-2. He has assessed the disability at 61.98% to right and left leg and 30.99% to the whole body. But the whole body disability assessed by the Tribunal 21% is on higher side and the same is contrary to the medical records produced by the parties.
d) Fourthly, the claimant has suffered four injuries and he was inpatient in the hospital for a period lf 31 days. The compensation awarded by the Tribunal Rs.1,20,000/- towards 'pain and suffering' is on higher side.
e) Fifthly, event though the doctor has deposed that the claimant requires more than Rs.2,00,000/- for 'future medical expenses', he has not produced any estimation and the claimant has not undergone any surgery and no document has been produced even before this Court to prove the same. Therefore, the compensation of Rs.1,00,000/- awarded under the head of 'future medical expenses' is also on higher side.
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f) Sixthly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, overall compensation awarded by the Tribunal is on higher side.
g) Lastly, in view 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 is on the higher side. Hence, he sought for dismissal of the appeal filed by the claimant by allowing the appeal filed by the Corporation.
7. On the other hand, the learned counsel for the claimant has raised the following contentions:
a) Firstly, the accident occurred due to negligence of the driver of the Bus. The claimant when standing on the extreme left side mud foot path of the road, the driver of the BMTC Bus drove the same in a rash and negligent manner from Kengeri Bus stand proceeding towards
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 Uttarahalli main road and took sudden left turn on the mud foot path and came on wrong lane and dashed to the claimant. Due to impact, the claimant suffered grievous injuries. Immediately after the accident, the claimant lodged the claimant against the driver of the Bus. The Police have also filed charge sheet against the driver of the Bus. He further contended that as per Ex.P4/spot mahazar, Ex.P5/IMV report, it is very clearly established to show that the driver of the Bus alone was negligent in causing the accident. The Tribunal after considering the evidence of the parties has rightly answered issue No.1 in the affirmative and rightly held that the driver of the Bus alone was negligent in causing the accident.
b) Secondly, the claimant claims that he was working as LIC Agent and was earning Rs.60,000/- per month. To prove the same, he has produced letter of appointment issued by LIC which marked as Ex.P11 which discloses that the petitioner has continued as LIC Agent. And he also produced letter issued by the Star Health and Allied Insurance Company Ltd. which marked as Ex.P12 which
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 shows that the claimant was appointed as Composite Agent (Health Insurance). But the Tribunal has taken the notional income as merely as Rs.9,000/- p.m.
c) Thirdly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 61.98% to the right and left leg and 30.99% to whole body. But the Tribunal has taken the whole body disability at 21%, which is on the lower side.
d) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 31 days. Even after discharge from the hospital, he was not in a position to discharge his regular work and he was unable to stand on his own. He was brought to the Court on wheel chair. He has suffered lot of pain during the treatment. Due to accidental injury, his left leg was crushed. Therefore, 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. Hence, he sought for enhancement of
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 compensation by allowing the appeal filed by the claimants.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal. REG : NEGLIGENCE
9. The case of the claimant is that on 22.08.2018 at about 08.00 p.m., the claimant was standing on the extreme left side mud foot path of Mysuru road, near Madhu Petrol Bank Junction, Kengeri, Bengaluru with due care, at that time, the driver of BMTC Bus bearing Registration No.KA-01/FA-1893 drove the same in a rash and negligent manner, so as to endangering human life came at high speed from Kengeri Bus Stand and proceeding towards Uttarahalli main road and took sudden left turn on the mud foot path and came on wrong lane and dashed against the claimant. As a result of the aforesaid accident, the claimant sustained grievous
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 injuries and was hospitalized. To prove the same, he has examined himself as PW-1 and produced 25 documents.
10. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
11. PW-1 in his evidence, he has reiterated the statement made in the claim petition. To disprove the case of the claimant, the respondent has examined Sri S. M. Shivarudrappa as RW-1 and produced one document. As per evidences and documents produced by the parties, it is very clear that immediately after the accident, the complaint has been lodged against the driver of the Bus as per Ex.P2. Police have registered FIR and
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 filed charge sheet as per Ex.P1 and Ex.P7 and drawn rough sketch and spot mahazar as per Ex.P3 and Ex.P4.
12. I have perused Ex.P3/sketch and Ex.P4/spot mahazar of the accident took place. It is very clear that the driver of the BMTC Bus bearing Registration No.KA- 01/FA-1893 came from R.V.College road and when reached near R.V.Bajaj show room cross road, he took Bus on the left side and moved the same on the foot path and hence back side portion of the Bus dashed to the claimant and it's wheel was ran over his legs. Even the Police after thorough investigation has filed the charge sheet against the driver of the Bus. Therefore, it discloses that the driver of the BMTC bus came extreme left side of the foot path and dashed against the claimant, who was standing on the left side of the foot path for crossing the road. Therefore, the evidence of the parties and documents produced by the parties discloses that the driver of the BMTC Bus alone was negligent in causing the accident and there is no error
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 in the finding given by the Tribunal. Hence, the Tribunal has rightly answered issue No.1 in the affirmative. REG:QUANTUM OF COMPENSATION
13. The claimant claims that he was earning Rs.60,000/- per month by working as LIC Agent. To prove the same, he has produced Ex.P11, letter issued by LIC. It discloses that the claimant has continued as LIC Agent and Ex.P12 issued by Star Health and Allied Insurance Company Ltd., it discloses that the claimant was appointed as Composite Agent (Health Insurance). Considering these documents, the Tribunal has given a finding that the claimant has appointed as Composite Agent (Health Insurance) and this finding is based on the material available on record. But the claimant has not produced any documents to prove that he was earning Rs.60,000/- per month. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 place in the year 2018, the notional income has to be taken at Rs.12,500/- p.m.
14. As per Wound Certificate, the claimant has sustained fracture of right leg, fibula near medial malleolus, crush injury of left leg with bone deep exposing the underlying muscles, tendons and bones near foot, crush injury of the right leg bone deep near foot and compound fracture dislocation of TN and MTP joints. The doctor in his evidence has stated that the claimant has suffered disability of 61.98% to the right and left leg and 30.99% to the whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 21%. The claimant is aged about 64 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.2,20,500/- (Rs.12,500*12*7*21%) on account of 'loss of future income'.
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15. The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.37,500/- (Rs.12,500*3 months) under the head 'loss of income during laid up period'.
16. The claimant was treated as inpatient for more than 31 days in the hospital and thereafter, has received further treatment. Hence, I am inclined to enhance the compensation awarded under the head of 'food, nourishment, conveyance and attendant charges' from Rs.18,600/- to Rs.30,000/-.
17. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-.
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NC: 2023:KHC:40888 MFA No. 461 of 2020 C/W MFA No. 7457 of 2019 However, considering the injuries suffered by the claimant, the compensation awarded by the Tribunal under the head of 'pain and suffering' is on higher side and the same has been reduced from Rs.1,20,000/- to Rs.70,000/-.
18. The doctor in his evidence has stated that the claimant requires about Rs.2,00,000/- for further surgery. But the claimant has not produced any estimation of future surgery. Considering the nature of injuries and evidence of doctor, the compensation awarded by the Tribunal under the head of 'future medical expenses' is on higher side and the same has been reduced from Rs.1,00,000/- to Rs.60,000/-.
19. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
20. Thus, the claimant is entitled to the following compensation:
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NC: 2023:KHC:40888
MFA No. 461 of 2020
C/W MFA No. 7457 of 2019
As awarded As awarded
by the by this
Compensation under Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 1,20,000 70,000
Medical expenses 72,491 72,491
Food, nourishment, 18,600 30,000
conveyance and
attendant charges
Loss of income during 0 37,500
laid up period
Loss of amenities 20,000 40,000
Loss of future income 1,58,760 2,20,500
Future medical expenses 1,00,000 60,000
Total 4,89,851 5,30,491
21. In the result, the following order is passed:
ORDER
a) The appeals are disposed of.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.5,30,491/-.
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d) In view of judgment of the Division Bench of this Court in the case of 'MS.JOYEETA BOSE' (supra), the interest at 9% per annum has been scale down to 6% per annum.
e) The Corporation is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment excluding interest for the compensation awarded under the head of 'future medical expenses'.
f) The amount in deposit, if any, shall be transferred to the Tribunal.
Sd/-
JUDGE HA List No.: 3 Sl No.: 54