Karnataka High Court
Sri Pradeep M vs The Managing Director Bmtc on 1 July, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.6578/2014(MV)
BETWEEN
SRI PRADEEP M
S/O Y MANJUNATH
AGED ABOUT 25 YEARS
R/AT No.2, 1ST CROSS
BINNY MILL ROAD,
COTTON PET
BENGALURU - 560 053.
...APPELLANT
(BY SRI MURALIKRISHNA K R, ADVOCATE)
AND:
THE MANAGING DIRECTOR
B.M.T.C.
CENTRAL OFFICE
KENGAL HANUMANTHAIAH ROAD
SHANTHINAGAR
BENGALURU - 560 027.
...RESPONDENT
(BY SRI F S DABALI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:09.07.2014
PASSED IN MVC No.3427/2012 ON THE FILE OF THE XXII
ADDITONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES
AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the Judgment and award, dated 09.07.2014 passed in MVC No.3427/2012 by the XXII Additional Small Causes Judge, Court of Small Causes and Member MACT, Bangalore, wherein a sum of Rs.1,34,680/- is awarded by allowing the claim petition filed under Section 166 of the Motor Vehicles Act, together with interest at 6% p.a. from the date of petition till its deposit.
2. In order to avoid confusion and overlappings, parties are referred to with reference to their respective rankings as stood in the Tribunal.
3. The appellant seeks enhancement of compensation in respect of the injuries that lead to disability of the appellant because of the accident dated 26.03.2012. It is stated that the accident is because of the rash and negligent driving of BMTC bus Volvo, bearing Reg.No.KA.01.FA.1528, which occurred at about 8.40 a.m. 3 on Kempegowda Central BMTC bus stand, First Ring Road, near Raghavendra Hotel, Bangalore. The petitioner was standing at the bus stand and on account of rash and negligent driving of the said bus, its left side wheel ran on the right leg of the petitioner. Due to which, he sustained grievous injuries and was treated at Hosmat Hospital, wherein he was inpatient from 26.3.2012 to 28.3.2012.
4. He claims Rs.5,00,000/- by way of compensation.
5. Respondent-Corporation appeared and objected the claim petition denying the rash and negligent driving by the driver of bus and contended that due to negligence of the petitioner while he tried to board the moving bus when it was overcrowded and when the door was struck, he fell down and sustained injuries.
6. On the basis of the material propositions asserted and denied along other relevant materials the learned Member framed issues on the accident, negligence, injury and entitlement for compensation.
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7. In order to prove his case, petitioner got himself examined as PW-1. The Doctor was examined as PW2 and got marked 30 documents from Exs.P1 to P30 including FIR, statement, sketch, IMV report, discharge summary and related documents. On the other hand, respondent-Corporation has examined one witness as RW1.
8. The learned Member allowed the claim petition in part, granting compensation of Rs.1,34,680/- together with interest at 6% p.a. from the date of petition till its deposit as under:
Pain and suffering ` 25,000/- Medical expenses ` 15,632/- Conveyance charges ` 02,000/- Attendant expenses, food and ` 01,000/- nourishment expenses
Loss of income during the period of ` 76,048/- treatment Loss of disability and loss of ` 15,000/-
amenities of life
TOTAL `1,34,680/-
9. Aggrieved by the said judgment and award, the petitioner has presented this appeal, seeking enhancement of compensation.
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10. Learned counsel submits that proper correlation is not maintained by the Tribunal between the injury negligence and disability.
11. Petitioner claims that he is aged about 23 years, at the time of accident. He sustained injuries as per Ex.P6 which are as under:
Fracture neck of 2nd and 3rd Metatarsal with fracture base of Proximal Phalanx of 2nd Toe with fracture Base of Great Toe with lisfranes injury right foot and CLW of Right Great Toe with fracture of Medial Right Cuneiform.
12. PW2, Doctor who has treated the petitioner deposed that petitioner has suffered disability of 46% of right lower limb and assessed the whole body disability at 16%. The learned counsel for petitioner would submit that taking the disability of 16% with multiplier of '18', the loss of future income ought to have been in consonance and proportionate to the disability which he has suffered. In the light of the fact that the petitioner has sustained the 6 injuries as stated above, the learned counsel for petitioner would submit that loss of earning capacity is diminished. He is also stated to be an employee of a Private Sector Enterprise being an Engineering Graduate and it is not that he has been rendered job less by virtue of disability.
13. In the contesting circumstances, the Tribunal has awarded Rs.25,000/- towards pain and suffering and this Court finds it just and proper to enhance the same to Rs.30,000/-.
14. Insofar as medical expenses is concerned, there are every likelihood of medical expenses whether it is present or future. In this contest, learned counsel for petitioner is fair enough to submit that petitioner has not claimed full medical expenditure and he has deducted what he has got from his employer by way of re- imbursement. In the facts and circumstances of the case, it is maintained to present shape.
15. Insofar as conveyance, attendant charges as well as nourishing charges which are awarded at Rs.2,000/- and Rs.1,000/- respectively is on the lower 7 side and it deserves to be enhanced to Rs.5,000/- in the present circumstance under the head 'conveyance, attendant as well as nourishing charges.'
16. Insofar as loss of income during the period of treatment, counsel for the petitioner would submit that he was in his bed for three and half months. Thus, whether he gets salary or not, salary which he has lost by virtue of his laid up because of the injuries for three and half months has again on record. Thus the present award of Rs.76,048/- taking the monthly income at Rs.21,728/- for three and half months is maintainable. Hence, it is maintained.
17. Insofar as loss of disability and loss of amenities of life is concerned, petitioner being a person of 23 years so many avenues are lost. Considering the disability, it prevents from doing or not doing or from carrying on his work or intellectual work in one way or the other. Loss of future income is because of disability which results in loss of earning capacity, finally loss of income during post accident stage.
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18. Insofar as loss of future income and reduction in earning capacity and the nexus between the accident, injury, disablement all are the forms of loss of earning capacity/reduction in future income.
19. Insofar as applying formula for calculating loss of future income is concerned, balance is to be maintained keeping in view of loss of income for a technical person. However, learned counsel appearing for petitioner submitted that Engineer in Tech Mahendra Company is required to go for testing vehicles which invariably calls for walking wherein the disability comes in the way. No doubt, total disability is considered at 16%, but it remains as trust opinion and not a gospel truth. Sofar as salary is concerned, it does not fit into the same ground as he is not paralyzed or rendered workless. In such circumstances, loss of future income is not considered by the Tribunal. Therefore, it will be just and proper to consider the present salary with disability at 8% to whole body. The concept of loss of working capacity or earning capacity also depends upon the capacity of a 9 person who underwent surgery than that of man who is similarly placed without any surgery or fracture.
20. Therefore, taking the income of petitioner at Rs.21,728/- per month as assessed by the Tribunal as just and proper, reassessing the permanent disability at 8% to the whole body, applying the multiplier of '18' as he was aged about 23 years, a sum of Rs.3,75,460/- (Rs.21,728/- x 12 x 18 x 8%= Rs.3,75,459.84, which is rounded off to Rs.3,75,460/-) is awarded towards loss of future income.
21. The compensation awarded under other heads deserves to be maintained.
22. Thus, the appellant/claimant is entitled to a modified compensation as under:
Injury, pain and suffering ` 30,000/-
Medical expenses ` 15,632/-
Conveyance, Attendant expenses, ` 05,000/-
food and nourishment expenses
Loss of income during the period of ` 76,048/-
treatment
Loss of disability and loss of ` 15,000/-
amenities of life
Loss of future income `3,75,460/-
Total `5,17,140/-
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23. In the result, appeal filed by the appellant is allowed in part.
Impugned judgment and award dated 09.07.2014 passed in MVC No.3427/2012 by the XXII Additional Small Cause Judge, Court of Small Causes and Member MACT, Bengaluru, is proportionately set aside and modified awarding the compensation of Rs.5,17,140/- as against to Rs.1,34,680/-. The enhanced compensation of Rs.3,82,460/- shall carry interest at 6% p.a. from the date of petition till its realization.
The respondent-Corporation is directed to deposit the enhanced compensation of Rs.3,82,460/- with interest at 6% p.a. from the date of petition till its deposit before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE tsn*