Karnataka High Court
The Divisional Manager vs Mr Joseph A on 16 June, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7263/2018 C/W
M.F.A.NO.6745/2018 (MV-I)
IN MFA NO.7263/2018
BETWEEN:
MR. JOSEPH A.,
S/O ANTHONY DAYAS,
AGED ABOUT 36 YEARS,
R/AT NO.60, 2ND CROSS,
NEAR S.D.A. CHURCH,
GOKULA 1ST STAGE, 1ST PHASE,
BENGALURU-560 054.
... APPELLANT
(BY SRI.GURUDEV PRASAD K.T., ADVOCATE)
AND:
THE DIVISIONAL MANAGER,
BENGALURU METROPOLITAN,
TRANSPORT CORPORATION,
K.H.ROAD, SHANTHINAGAR,
BENGALURU-560027.
... RESPONDENT
(BY SRI. D.VIJAY KUMAR, ADVOCATE)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.05.2018 PASSED IN MVC NO.5624/2017 ON
THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE &
XXIV ACMM, MEMBER, MACT, BENGALURU, PARTLY
2 M.F.A.NO.7263/2018 C/W
M.F.A.NO.6745/2018 (MVC)
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND
ETC.,
IN MFA NO.6745/2018
BETWEEN:
THE DIVISIONAL MANAGER,
BENGALURU METROPOLITAN,
TRANSPORT CORPORATION,
K.H.ROAD, SHANTHINAGAR,
BENGALURU-560027.
... APPELLANT
(BY SRI. D.VIJAY KUMAR, ADVOCATE)
AND:
MR. JOSEPH A.,
S/O ANTHONY DAYAS,
AGED ABOUT 36 YEARS,
R/AT NO.60, 2ND CROSS,
NEAR S.D.A. CHURCH,
GOKULA 1ST STAGE, 1ST PHASE,
BENGALURU-560 054.
... RESPONDENT
(BY SRI.GURUDEV PRASAD K.T., ADVOCATE)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.05.2018 PASSED IN MVC NO.5624/2017 ON
THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE &
XXIV ACMM, MEMBER, MACT, (SCCH-20), MAYO HALL
UNIT, BENGALURU, AWARDING COMPENSATION OF
RS.3,13,500/- WITH INTEREST @ 9% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION AND ETC.,
THESE M.F.As. COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3 M.F.A.NO.7263/2018 C/W
M.F.A.NO.6745/2018 (MVC)
JUDGMENT
MFA No.7263/2018 is filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant challenging the judgment and award dated 29.05.2018, passed in MVC No.5624/2017, on the file of the Motor Accident Claims Tribunal and Vth Additional Judge SCCH-20 Mayo Hall Unit, Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity, seeking enhancement.
2. MFA No.6745/2018 is filed under Section- 173(1) of MV Act by the appellant - insurance company, challenging the aforesaid judgment and award, questioning liability and quantum.
Brief facts:
3. On 21.09.2017 at about 9.15 a.m., when the claimant was trying to board BMTC Bus and put his first right step along with other commuters, in the BMTC bus bearing registration No.KA-01-F-8907, on Ayyappaswamy temple bus stop, S.M.Road, Jalahalli, Bengaluru to go to Jalahalli cross as commuter. The driver of the BMTC Bus 4 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) without observing the commuters getting into the bus, moved the bus at a very high speed, rash and negligent manner. Due to that sudden impact, the claimant who was getting into the bus, lost the balance and fell down on the road from the stairs of BMTC bus. Subsequently, the left rear wheel of the said bus ran over the left foot of the claimant and he sustained grievous injuries. Immediately, he was shifted to People Tree Hospital for first aid and then he was shifted to Bowring and Lady Curzon Hospital, Bangalore, where he was treated as in-patient.
4. Hence, a claim petition was filed by the claimant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.3,13,500/- along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held respondent - BMTC is liable to pay the compensation.
5. The learned counsel for the appellant - BMTC submitted that the driver of the bus was not at all rash and 5 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) negligent while driving the bus. Further, submitted that the claimant tried to board the bus when it was not a bus stop and the bus had already moved 200 meters away from the bus stop at that time while trying to board the moving bus on the road and the claimant fell and sustained injuries. When the bus was moving and the claimant tried to board the bus and thus fell and sustained injuries. Therefore, submitted that the accident has occurred only due to negligent act of the claimant himself. Therefore, submitted that with reference to the spot sketch, there is no mention of the bus stop in the place of accident, shown in the sketch. Therefore, the driver of the bus was not rash and negligent in driving the accident occurred entirely due to negligence of the claimant. That the Tribunal has wrongly fixed the negligence on the driver of the BMTC, which needs interference. Therefore, prays to allow the appeal filed by BMTC.
6. Further, the learned counsel for the appellant- insurance company submitted that the compensation awarded by the Tribunal is on the higher side, just by relying on the evidence of PW-2, Doctor. It is submitted 6 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) that the statement given by PW-2, Doctor is on higher side. Therefore, prayed for reducing the compensation. Therefore, on these grounds the learned counsel for the appellant - insurance company prays to allow the appeal and set-aside the judgment and award passed by the Tribunal.
7. On the other hand, the learned counsel for the claimant in MFA No.7263/2018 submitted that the accident has occurred in the bus stop which is clearly seen in the spot mahazar and also in the evidence of RW-1 driver of the bus and it is clearly seen in the complaint, FIR, spot mahazar and also in the investigation carried out by the police clearly shows that the bus driver was rash and negligent in driving the bus. Therefore, the Tribunal has rightly appreciated the evidence on record and come to the conclusion that the accident occurred due to rash and negligent driving of the driver of the BMTC Bus.
8. Further, the learned counsel for the claimant submitted that the Doctor has stated that the claimant has 7 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) suffered 37% disability to the lower limb and 19% disability to the whole-body. But the Tribunal has taken into view the disability to the whole-body at 12.3%, which is not justifiable. Hence, prays that the compensation under disability is required to be enhanced.
9. Heard learned counsels and perused the material on record.
10. Considering the rival submissions made by the learned counsel appearing for both the parties. It is undisputed fact that the accident has caused when the RW-1 was driving the bus. The learned counsel for the BMTC submitted that there is no mention in Exhibit-P4, Spot Mahazar that there was a bus-stop near the spot of the accident. Therefore, it is pointed out by the learned counsel for the BMTC that the accident occurred when the BMTC bus was not in the bus stop and was plying on the road.
11. Exhibit-P2 is the complaint, which was given in Jalahalli Police Station registered vide Cri.No.147/2017 8 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) against the driver of the BMTC Bus bearing No.KA-01-F- 8907, for committing offence punishable under Section- 279 and 337 of IPC on the basis of first information statement of the claimant. It is registered on the same day of the accident. Upon considering the date and time of filing the FIR it is seen that there is no delay in filing the complaint.
12. Exhibit-P4 is the Spot Mahazar and Exhibit-P3 is the Spot Sketch, it is revealed the place of accident and the sketch of the vehicle causing the accident. It is stated that the accident occurred in front of Aiyappaswamy temple and there is no median. Therefore, the panchanama is prepared in a mechanical way. This submission cannot be accepted, for the reason that the spot sketch is just to place on record the spot of crime occurred. Therefore, it is proved that the claimant was boarding the bus more or less near the bus-stop. The aspect of rash and negligence on the part of driver of the bus in these type of cases where claim petition are is filed, the evidence ought to have been appreciated on the theory 9 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) of 'preponderance of probabilities' but not on the theory of 'beyond reasonable doubt'. It is seen that the offending bus was plying near a crowded place at Jalahalli near Ayyappaswamy temple. It is further admitted by RW-1 in his evidence that the bus reached a crowded place at Jalahalli near Ayappa Temple bus stop. The passengers were boarding and deboarding the bus. At that time the claimant tried to enter from the middle door of the bus. Even though RW-1 has stated that he was driving the bus carefully and cautiously, the accident has occurred. But it is proved from the evidence of RW-1, driver of the bus, the complaint averments, spot sketch and spot panchanama and also the material of charge-sheet, that the driver of BMTC Bus was rash and negligent while driving the bus, which resulted in the accident. Therefore, the evidence of the claimant was found to be more probable than the evidence of RW-1. Therefore, when the entire evidence is considered and reappreciated in all probabilities, where the evidence of the claimant supports the document evidence placed, which shows that the driver of the BMTC bus was rash and negligent in driving the bus. Therefore, in this 10 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) regard the Tribunal has rightly appreciated the evidence which is not found to be perverse. Therefore, the Tribunal was right in holding that the bus driver was rash and negligent in driving the bus. Therefore, I do not find any error in the finding of the Tribunal in holding that the driver was rash and negligent.
13. The Tribunal has awarded compensation under various heads:
Pain, Injuries And Suffering : Rs. 75,000/-
Medical Expenses : Rs. 4,122/-
Nourishment and attendant charges : Rs. 10,000/-
Conveyance charges : Rs. 10,000/-
Loss of amenities : Rs. 15,000/-
Future Loss of income : Rs. 1,99,260/-
TOTAL : Rs. 3,13,382/-
14. Exhibit-P6 is the wound certificate which shows that the claimant had suffered the following injuries:
"i. Crush injury to left foot with fracture of left calcaneum, ii. De-glowing injury to left foot 10 x 8 cms
- X-ray of left foot shows fracture to left calcanium."11 M.F.A.NO.7263/2018 C/W
M.F.A.NO.6745/2018 (MVC)
15. PW-2, Doctor has also deposed that in the said accident, the claimant has suffered crush injury. As deposed by the Doctor, the claimant has suffered fracture of left foot calcaneum, which is not a minor bone. Calcaneum is one of very important bone, if that is fractured, then definitely that person cannot stand for long time.
16. The Tribunal has awarded Rs.75,000/- towards pain and sufferings, Rs.15,000/- towards loss of amenities, Rs.10,000/- towards conveyance charges and Rs.10,000/- towards Nourishment and attendant charges, which are found to be appropriate and does not need interference. PW-2, Doctor had stated that the appellant had suffered 37% of total disability towards left lower limb and 19% disability towards whole body. The Tribunal had considered the percentage of 12.3% of permanent physical disability by taking 1/3rd of the total disability to the left lower limb. The Tribunal has considered the notional income at Rs.9,000/- per month. The accident has occurred on 21.09.2017. Therefore, considering the year of the accident, the notional monthly income of Rs.11,000/- is to 12 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) be taken as per the chart of Karnataka State Legal Services Authorities. The age of the claimant at the time of the accident was 36, therefore the appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, is '15'. Therefore, the compensation under the head 'Loss Of Future Earning Capacity' is recalculated and quantified as follows:
Rs.11,000 x 12.3 % x 15 x 12 = Rs.2,43,540/-
17. The Tribunal has awarded a compensation of Rs.4,122/- towards 'Medical Expenses'. The same is as per the evidence on record. Therefore, the same needs no interference and is kept in tact.
18. The appellant was employed as technician carrying out regular work of washing machine and refrigerator repairs and due to the injury suffered he would have been not able to work for atleast 2 months.
Therefore, by taking income Rs.11,000/- per month and calculating the laid up period for two months, the claimant 13 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) is entitled for a sum of Rs.22,000/- (Rs.11,000 x 2 months), under the head 'Loss Of Earning During Laid Up Period'.
19. The Tribunal has awarded compensation along with interest at 9% per annum. However, it is held that the compensation shall carry simple interest at 6% per annum instead of 9%.
20. Hence, the appellant is entitled for a total enhanced compensation, under various heads as follows:
Pain, Injuries And Suffering : Rs. 75,000/- Kept in tact Medical Expenses : Rs. 4,122/- Kept in tact Nourishment and attendant charges : Rs. 10,000/- Kept in tact Conveyance charges : Rs. 10,000/- Kept in tact Loss of amenities : Rs. 15,000/- Kept in tact Loss of income during laid-up : Rs. 22,000/- period (Rs.11,000 x 2) Future Loss of income : Rs. 2,43,540/-
(11,000 x 12.3% x 15 x 12) TOTAL : Rs. 3,79,662/-
21. Therefore, the appellant is awarded a total compensation of Rs.3,79,662/- as against the compensation awarded by the Tribunal at Rs.3,13,382/-.
Hence, the appellant is entitled for an additional compensation of Rs.66,280/- (Rs.3,79,662 - 14 M.F.A.NO.7263/2018 C/W
M.F.A.NO.6745/2018 (MVC) Rs.3,13,382), along with interest at 6% per annum from the date of filing of the petition till deposit.
22. Accordingly, I pass the following:
ORDER i. MFA No.7263/2018 filed by the appellant-
claimant is allowed in part.
ii. MFA No.6745/2018 filed by the appellant -
insurance company, is allowed in part. iii. The impugned judgment and award dated 29.05.2018, passed in MVC No.5624/2017, on the file of the Motor Accident Claims Tribunal and Vth Additional Judge SCCH-20 Mayo Hall Unit, Bengaluru is modified to the aforesaid extent.
iv. The appellant is entitled for an additional compensation of Rs.66,280/- (Rs.3,79,662 - Rs.3,13,382), along with interest at 6% per annum from the date of filing of the petition till deposit 15 M.F.A.NO.7263/2018 C/W M.F.A.NO.6745/2018 (MVC) v. The amount in deposit shall be transferred to the Tribunal forthwith.
vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vii. Draw award accordingly.
Sd/-
JUDGE JJ