Karnataka High Court
Anoop K Thomas vs The M D Of Bmtc on 12 June, 2014
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.2273/2013 C/W M.F.A.No.1759/2013 (MV)
MFA.No.2273/2013
BETWEEN:
ANOOP K THOMAS
S/O K J THOMAS, 31 YEARS
R/AT NO.2, MARUTHI BLDG
3RD CROSS, VIDYAPEETA ROAD
KENGERI, BANGALORE - 560 060. ... APPELLANT
(BY SRI R CHANDRASHEKHAR, ADV.)
AND:
1. THE M D OF BMTC
CENTRAL OFFICE
K H ROAD, DOUBLE ROAD
SHANTHI NAGAR
BANGALORE - 560 027
2. UNITED INDIA INSURANCE COMPANY LIMITED
NO.40, 1ST FLOOR, LAKSHMI COMPLEX
OPP VANIVILAS HOSPITAL
K R ROAD FORT
BANGALORE - 560 002. ... RESPONDENTS
(BY SRI D VIJAY KUMAR, ADV. FOR R1; R2)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 17.12.2012
PASSED IN MVC NO.1988/2011 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, AND MACT AT BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA.No.1759/2013
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.
#40, I FLOOR, LAKSHMI COMPLEX
OPP: VANIVILAS HOSPITAL
K R ROAD, FORT, BANGALORE - 560 002
NOW REP. BY ITS REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
REGIONAL OFFICE, 5TH & 6TH FLOOR
KRISHI BHAVAN, NRUPATHUNGA ROAD
BANGALORE - 560 001. ... APPELLANT
(BY SRI A N KRISHNA SWAMY, ADV.)
AND:
1. ANOOP K THOMAS
S/O K J THOMAS, 31 YEARS
R/A #2, MARUTHI BUILDING
9TH CROSS, VIDYAPEETA ROAD
KENGERI, BANGALORE - 560 060
2. THE M D OF BMTC
CENTRAL OFFICE, K H ROAD
DOUBLE ROAD, SHANTHINAGAR
BANGALORE - 560 027. ... RESPONDENTS
(BY SRI R CHANDRASHEKAR, ADV. FOR R1; R2)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 17.12.2012
PASSED IN MVC NO.1988/2011 ON THE FILE OF III ADDITIONAL
SENIOR CIVIL JUDGE, MEMBER, MACT AT BANGALORE,
AWARDING COMPENSATION WITH INTEREST & ETC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are listed for admission. Lower Court Records are received. With the consent of learned counsel for parties, the appeals are taken up for final disposal.
2. MFA 1759/2013 is filed by the insurance company for reduction of compensation on two grounds viz., i) there was contributory negligence on the part of claimant ii) compensation awarded by the tribunal under several heads and rate of interest are excessive.
3. MFA 2273/2013 is filed by the claimant for enhancement of compensation.
4. I have heard learned counsel for claimant and learned counsel for insurance company.
5. The learned counsel for insurance company would submit that BMTC Bus bearing No.KA-01/F-1804 was not involved in the accident, it has been falsely implicated to fasten liability on the insurance company.
6. The submission of learned counsel for insurance company cannot be accepted for the following reasons: 4
I The BMTC has not filed the objection statement. II In the objection statement filed by the insurance company it has pleaded that accident was due to contributory negligence on the part of claimant.
During cross-examination a suggestion was made to this effect. Therefore, insurance company cannot be heard to say that BMTC Bus was not involved in the accident and it has been falsely implicated.
7. The evidence on record reveals that BMTC Bus was driven to its off side and the bus dashed against motorcycle ridden by claimant. Therefore, there was no contributory negligence on the part of claimant.
8. The claimant was aged about 29 years. As a result of accident his right lower limb was amputed below knee level. He has produced the documents to show that he is a Diploma holder in Automobile Engineering. The claimant has produced the salary certificate to prove that he was drawing a salary of Rs.18,000/- per month. The claimant has not examined his employer. He has not produced the Pay Slip. Having regard to age and educational qualification 5 of claimant, the tribunal has assessed the income of claimant at Rs.10,500/- per month. The tribunal has assessed the permanent physical disability vis-à-vis loss of earning capacity at 35%.
8. The tribunal has awarded compensation of Rs.13,70,572/- under the following heads:
Pain and agony - Rs. 50,000
Loss of income during laid up period,
Rest, nourishment and attendant charges - Rs. 12,000
Medical expenses - Rs.1,48,872
Cost of artificial limb and its repair charges- Rs.3,50,000
Conveyance - Rs. 10,000
Loss of future income - Rs.7,49,700
Loss of amenities - Rs. 25,000
Loss of marriage prospects - Rs. 25,000
Total - Rs.13,70,572
9. On hearing learned counsel for parties and after going through evidence and the impugned award and compensation awarded by the tribunal under different heads, I am of the opinion that compensation awarded under the head 'pain and agony' is inadequate so also, under the head 'loss of amenities'. Therefore, I award additional compensation of Rs.50,000/- towards 'pain and suffering' and additional compensation of Rs.50,000/- towards 'loss of 6 amenities'. Thus, claimant is entitled to additional compensation of Rs.1,00,000/- and total compensation of Rs.14,70,572/-. The tribunal has awarded interest at 8% per annum on the entire compensation. The tribunal should not have awarded interest on the compensation awarded towards 'loss of future income' as it is an accelerated payment.
10. Therefore, I pass the following:
ORDER MFA 1759/2013 filed by the insurance company is dismissed.
MFA 2273/2013 filed by the claimant is accepted in part. The impugned award is modified by enhancing compensation of Rs.13,70,572/- awarded by the tribunal to Rs.14,70,572/- with interest at 6% per annum from the date of petition till the date of realization on a sum of Rs.7,20,872/- (Rs.14,70,572 - 7,49,700). The rest of the impugned award as it relates to ratio of payment and investment is confirmed.7
The amount deposited by the insurance company shall be transferred to the tribunal.
Sd/-
JUDGE Np/-