Karnataka High Court
Miss. Asha Kumari Soren vs The Managing Director Bmtc on 25 February, 2016
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2016
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
M.F.A.No.4928 of 2015 (MV)
Between:
Miss. Asha Kumari Soren,
D/o. Shobharam,
Aged about 16 years,
R/at. No.180, SWR Railway Qtrs,
Yeshwanthpura, Bangalore-22.
Old Address:
No.180, Railway Qtrs,
Muneshwara Nagar, Bangalore.
(since the appellant is minor,
Hence rep. by her father as a
Natural guardian Sri. Shobharam)
....Appellant
(By Sri. M. Anil Kumar, Advocate)
And:
The Managing Director,
BMTC., Central Office,
K.H. Road, Shanthinagar,
Bangalore-27.
....Respondent
(By Sri. K. Nagaraja, Advocate)
********
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This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 28/03/2015, passed in MVC
No.4609/2012, on the file of the XVIII Additional Judge,
Court of Small Causes and Member, Motor Accident Claims
Tribunal-4, Bangalore (SCCH-4), partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This M.F.A. coming on for Admission this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This appeal by the claimant-appellant through her natural guardian/father, for enhancement of compensation is directed against the impugned judgment and award dated 28/03/2015, passed in MVC No.4609/2012, by the XVIII Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), (hereinafter referred to as 'Tribunal' for short).
2. The Tribunal, by its judgment and award has awarded a sum of `4,70,000/- under different heads with interest at 6% p.a., from the date of petition till its deposit as against the claim of `25,00,000/-, on 3 account of the injuries sustained by her in the road traffic accident.
3. In brief, the facts of the case are:
The appellant claims to be aged about 14 years at the time of the accident. She was hale and healthy prior to the accident, studying in 9th Standard. That on 19.1.2012 at about 3.30 p.m. injured appellant was getting down from BMTC bus bearing Reg.No.KA.01.F.9474 on Tumkur road at MEI bus stop.
At that time, driver of the bus drove the same in a rash and negligent manner and due to which, she fell down and rear wheels of the bus ran over her both leg and she sustained grievous injuries all over the body. Immediately, she was shifted to Columbia Asia Hospital, where she took treatment as inpatient from 19.1.2012 to 7.2.2012, underwent surgeries, implants were inserted, K wiring has been done. Again she took treatment as inpatient from 22.10.2012 3.11.2012 at 4 Apollo hospital and thereafter, on the advise of the Doctor, she has taken bed rest and follow up treatment.
4. It is the further case of the appellant that, her father spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, she has suffered permanent disability. Therefore, appellant has filed a claim petition before the Tribunal through her natural guardian, father under Section 166 of M.V. Act, claiming compensation against the respondents.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `4,70,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till its deposit. 5
6. Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal through her natural guardian, father.
7. The submission of the learned counsel Sri. Anil Kumar, appearing for appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards loss of education and permanent disability and towards loss of marriage prospects and what is awarded is inadequate and it requires to be enhanced reasonably. To substantiate the said submission, he submitted that, in the accident appellant has sustained grievous injuries, for that she took treatment as inpatient for 31 days, underwent surgeries and as per the evidence of the Doctor, she has sustained permanent disability and she is completely dependent on others for each and every routine work and is 100% crippled, on account of permanent disability, she 6 discontinued her studies, she is a very bright student and good in sports and she used to participate in each and every indoor and outdoor games and received many certificates in long jump, running race, Kho-Kho and in relay and now she is not able to participate in school sports, dance and any curricular activities and now she is not in a position to all those activities. Due to which, she has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for three months, discomforts and unhappiness persists through out her life, it would affect her marriage prospects. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation under different heads. He further submits that the rate of interest awarded by the Tribunal is on the lower side and is liable to be enhanced atleast between 9 to 10% in the light of the 7 judgments of the Apex Court and this Court since the accident has occurred in the year 2012. Therefore, he submitted that the impugned judgment and award is liable to be modified.
8. Per contra, learned counsel Sri. K.Nagaraja, appearing for respondent-Corporation, inter- alia, contended and submitted that the Tribunal after due appreciation of the oral and documentary evidence available on file, taking into consideration the nature of injuries sustained by her, nature and duration of treatment, parentage of disability has justified in awarding reasonable compensation under all the heads. Further, he submits that, the Tribunal has awarded a sum of `2.00 lakhs towards medical and incidental expenses without any credible document, on the ground that, entire medical expenses has been borne out by the employer of her mother as she is working in Railway Department and therefore, it does not call for interference.
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9. After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for respondent -Corporation and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
10. Occurrence of the accident and the resultant injuries sustained by the appellant as per Ex.P7- wound certificates are not in dispute. It is also not in dispute that, appellant was aged about 14 years and studying in 9th Standard at the time of accident.
The Tribunal, after due consideration of the oral and documentary evidence available on file and after assigning cogent and valid reasons in para-18 of its judgment has justified in awarding a sum of `2.00 lakh 9 towards medical expenses, including incidental expenses and therefore, it does not call for interference.
11. However, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards loss of education and permanent disability and towards loss of marriage prospects and what is awarded is on the lower side and is liable to be enhanced reasonably. It is the case of the appellant that, at the time of accident she is aged about 14 years and studying 9th standard, she is a very bright student and good at sports and used to participate in each and every indoor and outdoor games and she received many certificates in long jump, running race, kho-kho and in relay and now she is not able to participate in sports and other curricular activities. In the accident, appellant has sustained degloving injury to the left foot and ankle exposing the muscle and tendons, degloving injury over inner aspect of right leg exposing muscles and tendon, fracture of 5th metatarsal 10 on left side and dislocation of left ankle. For that, she has taken treatment as inpatient, underwent surgery and implants were inserted. During the said period, she might have undergone lot of pain and agony and on account of grievous injuries sustained by her, she has suffered permanent disability, she is completely dependent on others for each and every routine work and is 100% crippled. Discomforts and unhappiness persists through out her life and it would affect her happiness in future life and also affects her marriage prospects and she has lost her education for one academic year and therefore, she has to be compensated reasonably. Taking all these aspects into consideration and after re-appreciation of the oral and documentary evidence available on file, we award a sum of `1,00,000/- towards injury, pain and suffering as against `50,000/-, `50,000/- towards loss of education for one academic year, `2,50,000/- towards loss of amenities, discomforts and unhappiness due to 11 disability as against `1,40,000/- and `1,00,000/- towards loss of marriage prospects as against `50,000/-.
In all, the appellant is entitled to the total compensation of `7,00,000/- instead of `4,70,000/- and the break- up is as follows:
Towards injury, pain and sufferings ` 1,00,000/- Towards medical expenses, ` 2,00,000/- conveyance, nourishing food and attendant charges Towards loss of education for one ` 50,000/- academic year Towards loss of amenities ` 2,50,000/- Towards future medical expenses ` 1,00,000/-
Total ` 7,00,000/-
12. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2012. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the 12 enhanced compensation instead of 6% awarded by the Tribunal.
13. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 28/03/2015, passed in MVC No.4609/2012, by the XVIII Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), stands modified, awarding the compensation of `7,00,000/- instead of `4,70,000/- as awarded by the Tribunal. There would be an enhancement of `2,30,000/- with interest at 9% p.a., from the date of petition till its realization.
The respondent-Corporation is directed to deposit the enhanced compensation of `2,30,000/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.
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Immediately on such deposit by the respondent- Corporation, out of the enhanced compensation of `2,30,000/-, 50% with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant in any Nationalized or Scheduled or Grameena bank, till she attains 30 years, with liberty reserved to the natural guardian of the appellant to withdraw the interest accrued on it for the welfare of appellant till she attains 21 years and from 22 years to 30 years, appellant is entitled to withdraw the interest accrued on it, periodically.
The remaining 50% with proportionate interest shall be released in favour of the appellant through her natural guardian/father immediately.
Draw the award, accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*