Karnataka High Court
The Managing Director Bmtc vs Mrs Jyothi S G on 6 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCELLANEOUS FIRST APPEAL NO. 2280/2014(MV)
C/W.
MISCELLANEOUS FIRST APPEAL NO. 7554/2014(MV)
M.F.A. NO.2280/2014
BETWEEN:
THE MANAGING DIRECTOR,
B.M.T.C., CENTRAL OFFICE,
K.H. ROAD, SHANTHINAGAR,
BANGALORE-560 027.
... APPELLANT
(BY K. NAGARAJA, ADVOCATE)
AND
MRS. JYOTHI S.G., W/O. LOKESH T.N.,
AGED ABOUT 38 YEARS
R/AT NO.4, I CROSS,
VINAYAKA EXTENTION, K.G. NAGAR,
BANGALORE-560 019
... RESPONDENT
(BY SRI SMT. SREEVIDYA FOR
SRI T.V. VISHWANATH, ADVOCATE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD PASSED DATED 26.12.2013
PASSED IN MVC NO. 1100/2013 ON THE FILE OF THE
CHIEF JUDGE, COURT OF SMALL CAUSES, MEMBER,
PRINCIPAL MACT, BANGALORE, AWARDING
COMPENSTION OF RS.11,69,740/- WITH INTEREST.
M.F.A. NO.7554/2014
BETWEEN:
MRS. JYOTHI S.G., W/O. LOKESH T.N.,
AGED ABOUT 38 YEARS
R/AT NO.4, I CROSS,
VINAYAKA EXTENTION, K.G. NAGAR,
BANGALORE-560 019
... APPELLANT
(BY SMT. SREEVIDYA FOR
SRI T.V. VISHWANATH, ADVOCATE)
AND
THE MANAGING DIRECTOR,
B.M.T.C., CENTRAL OFFICE,
K.H. ROAD, SHANTHINAGAR,
BANGALORE-560 027.
... RESPONDENT
(BY SRI K. NAGARAJA, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD PASSED DATED 26.12.2013
PASSED IN MVC NO. 1100/2013 ON THE FILE OF THE
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CHIEF JUDGE, MEMBER, PRINCIPAL MACT, COURT
OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Corporation as well as the claimant are before this Court challenging the judgment and award dated 26.12.2013 passed in MVC No.1100/2013 by the Member, Principal M.A.C.T. (for short 'the Tribunal').
2. The Corporation being aggrieved by the judgment and award dated 26.12.2013 passed by the Tribunal has preferred an appeal in MFA No.2280/2014, whereas, the claimant has preferred an appeal in MFA No.7554/2014.
3. The facts leading to the filing of the case are as follows:
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The case of the claimant before the Tribunal was that on 29.12.2013 at about 1.45 p.m., she was riding her Scooty Pep bearing registration No.KA-05/HV-4891 on South End Road Basavanagudi Bangalore and when she was proceeding near Yadiyoor Circle, the driver of the offending bus bearing registration No.KA-01/F-8720 came in a rash and negligent manner from the left side of the road in the same direction and while trying to overtake the claimant's bike, the driver of the offending bus lost control and dashed against the claimant's bike from the hind side. In the said accident the claimant suffered fracture of inferio lateral portion of the lateral malleolus and also suffered deep abrasion antero-lateral aspect of the ankle extending to the dorsum of the foot measuring 12 x 4 cms. Hence, the claimant filed a claim petition claiming compensation of Rs.10,00,000/-.-5-
4. On receipt of notice, the Corporation contested the proceedings and stoutly denied the entire averments made in the claim petition. The case of the Corporation before the Tribunal was that the claimant herself was negligent and the accident occurred on account of rash and negligent driving by the claimant. The first contention taken in the objections statement is that the claimant was responsible for the cause of the accident and this accident occurred while she was trying to overtake the bus and hence, on this set of objections the Corporation prayed for dismissal of the claim petition.
5. The Tribunal on the pleadings of both the parties has framed the following issues:
1. Whether the petitioner proves that she sustained grievous injuries in a motor vehicle accident that occurred on 29.12.2012 at about 1.45 p.m., on South End Road, near Yadiyur Circle, Basavanagudi, Bangalore -6- within the jurisdiction of Basavanagudi Traffic P.S., on account of rash and negligent driving of the BMTC Bus bearing registration No.KA-01/F-8720 by its driver?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
6. The Tribunal having examined the oral and documentary answered issue No.1 in the affirmative by holding that the driver of the offending bus was rash and negligent and on account of his negligent driving, the accident has occurred and the claimant suffered grievous injuries in the said accident. Though the counsel for the Corporation would vehemently argue and contend that the claimant was also equally negligent, however the clinching evidence on record would clearly indicate that the driver of the offending -7- bus was responsible for the accident. This clinching evidence is not at all rebutted by the Corporation by leading rebuttal evidence. The oral evidence of the driver who is examined as RW1 would not refute and outweigh the documentary evidence adduced by the claimant. In that view of the matter the finding recorded by the Tribunal while answering issue No.1 in affirmative is in accordance with law and would not warrant any interference by this Court.
7. The Tribunal on appreciation of oral and documentary evidence has proceeded to determine the compensation under the head future loss of earning. The Tribunal having examined the medical evidence on record proceeded to assess the disability at 33% in relation to whole body and the Tribunal having assessed 33% permanent disability has proceeded to award a -8- compensation of Rs.9,97,125/- towards loss of future earning due to disability.
8. The counsel appearing for the Corporation would vehemently argue and contend before this Court that the Tribunal was not at all justified in taking 33% disability while determining the future loss of earning. He would submit before this Court that the finding arrived at by the Tribunal taking 33% disability is palpably erroneous. He would also take this Court to the evidence of the Doctor with regard to the assement of disability. While doing so he would vehemently argue and contend that even 33% disability assessed is factually incorrect. He would submit to this Court that he summed up the disability suffered by the claimant to various limbs. In this background he would submit to this Court that disability to the whole body assessed by the Tribunal needs to be re-examined by this Court. -9-
9. Per contra, the learned counsel appearing for the claimant would rely on the Doctor's evidence and would vehemently argue before this Court and contend that the claimant on account of the grievous injuries suffered in the accident is unable to walk. In view of the fatal injuries suffered to the right ankle there is also evidence indicating that she is even unable to wear chappal and shoes. To substantiate the case of the claimant, she would take this Court to the evidence of PW3, who is Principal of the college where the claimant was employed. On examining the evidence of Principal, it is clearly evident that on account of grievous injuries suffered, the claimant has quit the job and there is material on record to indicate that she has resigned on account of grievous injuries suffered in the accident.
10. In this background, if the medical evidence is meticulously examined by this Court, at the disability is -10- to be assessed at 20% if disability is taken at 20%, then the income of the claimant on account of disability comes to at 3,357.4. The compensation under the head future loss of earning works out as under:
Rs.3,357.4 x 12 x 15 = Rs.6,04,332/-
11. Having regard to the gravity of the injuries suffered by the claimant, this Court is of the view that the compensation awarded under the head pain and suffering and other heads need to be modified. Accordingly, this Court would proceed to award compensation as follows:
Pain and Suffering Rs.50,000/-
Loss of Amenities Rs.30,000/-
Attendant, Conveyance and Rs.15,000/-
Other Incidental Charges
Loss of Income During Laid Rs.32,000/-
Up Period
Loss of Future Income Rs.6,04,332/-
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12. However, the compensation awarded by the
Tribunal towards medical expenses is just and proper and does not call for any interference by this Court.
13. In the light of the above said observation, on re- determination, this Court holds that the appellant is entitled to compensation of Rs.8,66,947/- as against Rs.11,69,740/-. The appeal filed by the Corporation in MFA No.2280/2014 is allowed in part. In view of the re- determination of compensation in the appeal filed by the Corporation, the appeal filed by the claimant in MFA No.7554/2014 does not survive for consideration and the same is disposed of.
The amount in deposit in MFA No.2280/2014 is transmitted to the Tribunal.
Sd/-
JUDGE Sbs*