Karnataka High Court
Sri Vittal Rao V vs The Managing Director on 26 September, 2022
Author: B.Veerappa
Bench: B.Veerappa
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MFA No.3649 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.3649 OF 2016(MV-I)
BETWEEN:
1. SRI VITTAL RAO V.,
S/O VENKATA RAO,
AGED ABOUT 42 YEARS,
R/AT NO 3997,
7TH CROSS, GAYATHRINAGAR,
BANGALORE - 560021.
...APPELLANT
(BY SRI. VASANTHAPPA., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
BMTC,
BANGALORE CENTRAL OFFICE,
K. H. ROAD,
SHANTHINAGAR,
BANGALORE - 560027.
Digitally signed
by MALATESH 2. THE MANAGER
KC UNITED INDIA INSURANCE CO. LTD.,
Location: High NO 40, 1ST FLOOR,
Court of
Karnataka LAKSHMI COMPLEX,
OPPOSITE TO VANIVILAS HOSPITAL,
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MFA No.3649 of 2016
K. R. ROAD,
BENGALURU - 560002.
...RESPONDENTS
(BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R1;
SRI P.S. JAGADISH, ADVOCATE FOR
SRI P.B. RAJU, ADVOCATE FOR R2)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.02.2016 PASSED IN MVC
NO.3159/2012 ON THE FILE OF THE MEMBER, MACT, XX
ADDITIONAL SMALL CAUSES JUDGE, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING, THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The claimant filed the present Miscellaneous First Appeal against the judgment and award dated 26.02.2016 passed in MVC No.3159/2012 on the file of the Member, Motor Accident Claims Tribunal, XX Additional Small Causes Judge, Bengaluru (SCCH-22), awarding total compensation of Rs.6,90,000/- with interest at 8% per annum from the date of petition till realization.
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2. It is the case of the appellant/claimant who filed the claim petition under Section 166 of the Motor Vehicles Act, 1989, that on 22.11.2010 at about 9.30 pm when he was riding the Kinetic Honda bearing registration No.KA-04/R-693 on the extreme left side on P.F.Road, and reached near Krishna Flour Mill junction, at that time, suddenly the driver of the BMTC Bus bearing registration No.KA-01/FA-316 came from opposite direction from Rajiv Gandhi Junction towards Majestic i.e., North to South direction, in a rash and negligent manner, endangering the human life, without observing any traffic rules and regulations, on the extreme right side (i.e., wrong side) and dashed against the claimant's Kinetic Honda. Due to the impact, the claimant fell unconscious and sustained grievous injuries all over the body. Immediately, he was shifted to General Hospital, Malleshwaram, Bengaluru, wherein FIRST AID was given. Due to the severe injuries sustained, the claimant was referred to Srinivasa Hospital, Bengaluru, for further treatment and was inpatient from 23.11.2010 to 01.12.2011. It is contended that the claimant spent a sum of Rs.8,50,000/- towards medical, conveyance, nourishment and other incidental charges etc., It is further contended that, prior to the accident, -4- MFA No.3649 of 2016 claimant was hale and healthy and was working as a Sales Man in Asha Electricals, Chickpet, Bengaluru, and was earning Rs.10,000/- per month and was the only earning member in the family and he was contributing his entire income towards maintenance of his family. Due to the accidental injuries, the claimant cannot attend his work and he lost his earning capacity and has been put to great financial hardship. Due to the accident, the claimant could not work as before and lost his earning capacity and has to spend rest of his life in pain and agony. It is further contended that the accident occurred due to rash and negligent driving of the BMTC driver and therefore, sought to allow the claim petition.
3. In response to the notice issued by the Tribunal, the respondent No.1-BMTC filed the written statement, denied the averments made in the claim petition and also denied the age, address, avocation, income of the claimant and also the amount spent for treatment. It was further contended that mere registration of criminal case against the driver of the bus will be of no significance and consequently, the respondent No.1 is not liable to pay any compensation. It was further -5- MFA No.3649 of 2016 contended that the bus involved in the accident was insured with the 2nd respondent and the policy was in force as on the date of the accident and therefore, sought to dismiss the claim petition.
4. The 2nd respondent filed the written statement, denied the averments made in the claim petition and contended that the claimant was not possessing a valid and effective driving licence to drive the Kinetic Honda as on the date of the accident and the accident occurred only due to the lack of riding skills on the part of the claimant. Though it was contended that the insurance policy in respect of the offending bus was in force as on the date of the accident, however, the liability to pay the compensation was denied on the ground that there is violation of terms and conditions of the policy, and sought to dismiss the claim petition.
5. On the basis of the aforesaid pleadings, the Tribunal framed the following issues:
(i) Whether the petitioner proves that the accident that occurred on 22.11.2010 at about 9.30 pm on P.F.Road, at Krishna Flour Mill Junction, Bengaluru, -6- MFA No.3649 of 2016 was caused due to the rash and negligent driving of the BMTC bus bearing Registration No.KA-01/FA-316 by its driver who dashed against his Kinetic Honda bearing No.KA-04/R-693, and due to which, he sustained grievous injuries all over the body?
(ii) Whether the petitioner is entitled for compensation? If so, for what amount and from whom?
6. In order to prove his claim, the claimant examined himself as P.W.1 and examined three doctors as P.Ws.2 to 4 and got marked the documents as per Exs.P.1 to P.53. The respondent Nos.1 and 2 did not step into the witness box, however, produced the insurance policy as per Ex.R.1.
7. The Tribunal, considering the oral and documentary evidence on record, recorded a finding that the claimant proved that the accident in question occurred due to the rash and negligent driving of drive of the BMTC bus bearing Registration No.KA-01/FA-316 and due to the accident, the claimant sustained grievous injuries all over the body. Thereby, claimant is entitled to compensation and accordingly, awarded -7- MFA No.3649 of 2016 total compensation of Rs.6,90,000/- with interest at the rate of 8% per annum from the date of petition till realization. Hence, the claimant has preferred the present Miscellaneous First Appeal seeking enhancement of compensation.
8. The BMTC has not filed any appeal challenging the impugned judgment and award.
9. We have heard the learned counsel for the partiers to the lis.
10. Sri Vasanthappa, learned counsel for the appellant/claimant contended that though the claimant has stated that he was earning Rs.10,000/- per month, the Tribunal has taken the monthly income at Rs.7,000/-. He further contended that P.W.2-Doctor stated that the claimant has suffered whole body disability of 8% and PW.3 - Doctor stated that due to the injuries the patient cannot have sexual intercourse and claimant has undergone emotional trauma about the loss of his right testis. PW.4 - doctor stated that claimant has suffered 50% due to loss of one testicle and 17% disability to the whole body. Due to the injuries sustained, the -8- MFA No.3649 of 2016 claimant cannot live normal life and he cannot be a normal man with loss of one testicle and he cannot be 100% successful in sexual activities and there will be poor performance with one testis and thereby, the Tribunal has erred in not awarding any compensation towards partial disability and towards loss of matrimonial obligations. Thereby, sought to allow the appeal.
11. Sri. P.S. Jagadish, learned counsel for P.B. Raju, learned counsel appearing for respondent No.2 while justifying the order passed by the Tribunal would contend that the except statement made by claimant, who is examined as PW.1, claimant has not examined the owner of the Asha Electrical i.e., employer to prove that he was earning Rs.10,000/- per month. In the absence of the same, the Tribunal is justified in taking the income of the claimant at Rs.7,000/- per month. He would further contend that PW.1 in his cross-examination has admitted that he is working in the same company and was earning a higher salary than before the accident. Thereby, there is no future loss of income due to disability to the claimant. He further contended that evidence adduced by PW.2, PW.3 and PW.4 about the percentage of the disability is -9- MFA No.3649 of 2016 inconsistent. Thereby, the Tribunal has not awarded any compensation under the head of loss of income due to disabilities and sought to dismiss the appeal.
12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for consideration in the present appeal is:
"Whether the claimant has made out a case for further enhancement in the facts and circumstances of the present case?"
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record including original records carefully.
14. It is undisputed fact that due to unfortunate accident occurred on 22.11.2010, the claimant has sustained injuries due to rash and negligent driving of the driver of the BMTC bus bearing registration No.KA-01-FA-316. The same is evident from material document i.e., Ex.P.1 - the copy of FIR and
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MFA No.3649 of 2016Ex.P.3- Charge-sheet filed by the officers during the course of their official business.
15. It is stated by the claimant that he was working as a Salesman and earning Rs.10,000/- per month. To prove the same, the claimant has not produced any document and in the absence of the same, the notional income at Rs.7,000/- taken by the Tribunal is just and proper.
16. It is not in dispute that due to the unfortunate accident, the claimant was admitted to Srinivasa Hospital and Ex.P.9 - Wound Certificate clearly depicts that the claimant has sustained the following injuries:
"1. Pelvic injury with scrotal laceration with B/L Testicular injury.
2. Deep irregular wound/degloving all around scrotum-Both testicles exposed with bleeding.
3. Abrasions B/L anterior thigh, inguinal region, pubic region, each measures 20 x 4 cm (LxB)
4. CT Abdomen Pelvis fracture of right pubic rami/acetabular floor."
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MFA No.3649 of 2016
17. PW.2- Doctor who examined the claimant has stated on oath that claimant has sustained disability of 8% to the whole body. PW.3- Doctor stated that claimant cannot have sexual activities and he has undergone emotional trauma about the loss of his right testis. PW.4 - stated on oath that the claimant has suffered 50% disability due to loss of one testicle and 17% disability to the whole body and the claimant cannot live normal life and he cannot be a normal man with loss of one testicle and he cannot 100% successful in sexual activities and there will be poor performance with one testis. Thereby, it is clear that the doctors inconsistently stated the percentage of disability suffered by the claimant and about his matrimonial obligation. Though the percentage stated by the doctor is inconsistent, the fact remains that the disability suffered is not in dispute. Thereby, the Tribunal is not justified in not awarding any compensation under the head loss of income due to disabilities. However, taking into consideration the age of the claimant, evidence of PW.2 to PW.4 and Ex.P.9 - wound Certificate and the injuries sustained by him, we are of the considered opinion that the percentage of disability has to be taken at 20%.
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MFA No.3649 of 2016
18. In view of the above, the income of the claimant to be taken is at Rs.7,000/- per month and the percentage of disability has to be taken at 20%. The appropriate multiplier applicable is '15' considering the age of the claimant. Therefore, the appellant/claimant is entitled to compensation of Rs.2,52,000/- (Rs.7,000 x 12 x 15 x 20%) under the head of 'loss of future income'.
19. The Tribunal has proceeded to award only a sum of Rs.30,000/- towards food, nourishment, attendant and transportation, which is on meager side and same needs to be enhanced as the claimant was admitted in Srinivasa hospital and took treatment as an inpatient from 23.11.2010 to 01.12.2010. The Tribunal has granted a sum of Rs.50,000/- towards future medical expenses, which is on the lower side. Taking into consideration the injuries sustained by the claimant as per Ex.P.9-Wound Certificate and evidence of PW.2 to 4, we are of the considered view that the claimant is entitled for another sum of Rs.50,000/- towards loss of future medical expenses.
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MFA No.3649 of 2016
20. On re-assessment of the entire oral and documentary evidence on record, we are of the considered opinion that the appellant/claimant is entitled for compensation for just and fair compensation as under:
Sl. Compensation Head Amount of
compensation
No. awarded
1 Pain and sufferings 2,00,000/-
(awarded by the Tribunal)
2 Medical expenses 1,60,000/-
(awarded by the Tribunal)
3 Food, nourishment, attendant and 50,000/-
transportation
4 Loss of income during laid up period 50,000/-
(awarded by the Tribunal)
5 Loss of amenities in life 2,00,000/-
(awarded by the Tribunal)
6 Future medical expenses 1,00,000/-
7 Loss of disabilities 2,52,000/-
8 Loss of matrimonial obligation 2,00,000/-
Total 12,12,000/-
21. In all, the appellant/claimant is entitled to total compensation of Rs.12,12,000/- as against Rs.6,90,000/-
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MFA No.3649 of 2016awarded by the Tribunal. Thus, the appellant/claimant is entitled to enhanced compensation of Rs.5,22,000/- with interest @ 6% p.a. from the date of petition till the date of realization.
22. In view of the above, we answer the point raised in the present appeal in the affirmative holding that the appellant/claimant has made out a case for enhancement of compensation, in the facts and circumstances of the case.
23. For the reasons stated above, we pass the following:
ORDER
i) The Miscellaneous First Appeal is allowed in part.
ii) The impugned Judgment & Award passed by
the Tribunal is hereby modified. The
appellant/claimant is entitled to total
compensation of Rs.12,12,000/- as against Rs.6,90,000/- awarded by the Tribunal.
iii) The enhanced compensation of
Rs.5,22,000/- shall carry interest @ 6%
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MFA No.3649 of 2016
per annum from the date of petition till the date of realization.
iv) The Respondent No.2/Insurance company shall deposit the enhanced compensation with interest within a period of six weeks from the date of receipt of copy of this judgment with proportionate interest.
v) Out of enhanced compensation of
Rs.5,22,000/-, Rs.2,00,000/- shall be
deposited in the name of the claimant in any nationalized bank for a period of three years and remaining amount of Rs.3,22,000/- shall be released in favour of the claimant.
vi) The Registry is directed to return the trial Court Records to the Tribunal forthwith, if any.
Sd/-
JUDGE Sd/-
JUDGE Kcm-paragraphs 1 to 10 MBM-paragraph 10 till end.