Karnataka High Court
The Managing Director vs Sri. Suresh on 22 March, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
M.F.A. No.148/2016 (MV)
c/w
MFA No.5718/2016 (MV)
IN M.F.A. No.148/2016 (MV):
BETWEEN:
The Managing Director
BMTC, Double Road
Shanthinagar
Bengaluru-27.
(BMTC Bus bearing No.KA-50-F171)
Now through Chief Law Officer
BMTC, Bangalore.
... Appellant
(By Sri K. Nagaraja, Advocate)
AND:
Sri Suresh
S/o Sri Gangaraju
Aged about 28 years
R/at No.320, 7th Cross
Rajgopalnagar,
Bangalore- 560 058.
...Respondent
(By Sri G.K. Yogesha, Advocate)
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This MFA is filed under Section 173(1) of the
MV Act against the judgment and award dated
15.10.2015 passed in MVC No.1118/2015 on the file
of the Member, Principal MACT, Bengaluru, awarding
the compensation of Rs.8,06,800/- with interest at
9% P.A. from the date of petition till the deposit.
IN M.F.A. No.5718/2016 (MV):
BETWEEN:
Sri Suresh
S/o Gangaraju
Aged about 28 years
R/at No.320, 7th Cross
Rajgopalnagar,
Bengaluru- 560 058.
... Appellant
(By Sri G.K. Yogesha, Advocate)
AND:
The Managing Director
BMTC, Double Road
Shanthinagar
Bengaluru-560 027.
...Respondent
(By Sri K. Nagaraja, Advocate)
This MFA is filed under Section 173(1) of the
MV Act against the judgment and award dated
15.10.2015 passed in MVC No.1118/2015 on the file
of the Member, Principal MACT, Bengaluru, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
These MFAs coming on for hearing this day, the
Court delivered the following:-
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JUDGMENT
MFA No.148/2016 has been preferred by BMTC, Bengaluru and MFA No.5718/2016 has been preferred by the claimant being aggrieved by the judgment and award passed by Member, Principal Motor Accident Claims Tribunal, Bengaluru in MVC No.1118/2015 dated 15.10.2015.
2. Heard the learned counsel appearing for the parties.
3. The brief facts of the case are that on 11.01.2015 at about 4.51 p.m. petitioner Suresh was proceeding on his Honda Activa bearing registration No.KA.04/H.H8204 from Laggere main road towards Laggere ring road, at that time a B.M.T.C. bus bearing registration No.KA.50/F.171 came rashly and negligently and dashed to the said motor cycle and as a result of the same he fell down and sustained grievous injuries. Immediately, he was shifted to Premier Sanjeevini Hospital and after first aid he was -4- shifted to Sapthagiri Hospital and he has been admitted as an inpatient from 11.1.2015 to 25.2.2015.
4. It is the contention of the petitioner that before the accident he was working as a Carpenter at M/S. R.K.Wood Factory and was earning Rs.15,000/- per month. For having suffered the injuries and amputation a claim petition was filed under Section 166 of the Motor Vehicles Act.
5. In response to the notice respondent filed the objections by denying the contents of the petition. It is contended that the driver of the bus was driving slowly, carefully on the left side of the road and when the bus reached near Umapai Tailors, Laggere, at that time the rider of the Honda Activa came along with two pillion riders on the right side of the bus and he lost control over the vehicle and he came towards the right side of the bus and rubbed the front right side near front wheel of the bus and fell down on the road along with two pillion riders and his right leg -5- touched to right side front wheel of the bus and in that light the alleged accident has taken place due to the fault of the rider himself. He further contended that the driver of the bus is not responsible for the alleged accident. On these grounds he prayed for dismissal of the said petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues:
i) Whether the petitioner proves that he sustained grievous injuries in a motor Vehicle Accident that occurred on 11.01.2015 at about 4.51 p.m. at Laggere Main Road, Laggere, Bangalore, within the jurisdiction of Peenya Traffic Police Station on account of rash and negligent driving of the BMTC Bus bearing Reg.No.KA-50 F-171 by its driver?
ii) Whether the Respondent proves that the accident occurred on account of negligent act of the petitioner?
iii) Whether the petitioner is entitled for compensation? If so, how much and from whom?
iv) What order?
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7. In order to prove the case of the petitioner, petitioner got himself examined as PW1 and also examined PW2 the eyewitness and PW3 Dr.B.Ramesh and got marked the documents Exs.P1 to P16. On behalf of respondent, driver of the bus came to be examined as RW1 and has not marked any documents. After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the BMTC as well as the claimant are before this Court.
8. The main grounds urged by the learned counsel for the Corporation are that the claimant along with two pillion riders was proceeding as a triple rider in the Honda Activa and the rider of the Honda Activa was not holding valid and effective driving licence and while going triple riding, they lost the control, came and hit to the bus and as a result of the same the alleged accident has taken place due to the fault of the claimant himself. The Tribunal without considering the sketch Ex.P3 and the other -7- evidence has erroneously fixed the entire liability on the Corporation. He further contended that there is sufficient space on the right side of the bus. Though sufficient space was there, while over taking the said bus he lost the control and thereafter came and hit to the bus. On that ground the claimant has contributed to the alleged accident. He further contended that admittedly in the evidence the claimant has admitted that he has lost the driving licence in 2012 and no documents are produced to show that he was holding valid and effective driving licence as on the date of the accident. Without driving licence driving on a public road, amounts to nothing but a contribution to the alleged accident. In order to substantiate his contention he relied upon the decision in the case of THE ORIENTAL INSURANCE CO. LTD., VS. SRI.NARESH BABU N. AND ANOTHER IN MFA 7074/2016 of this Court dated 6.12.2017. He further contended that the compensation awarded under the various heads is on the higher side and the same requires to be reduced proportionately. On -8- these grounds he prayed for allowing the appeal by reducing the compensation holding that the claimant has also contributed to the alleged accident.
9. Per contra, the learned counsel appearing on behalf of the claimant vehemently argued by contending that when the claimant was proceeding, at that time, the driver of the BMTC bus came from behind and dashed to the motor cycle and in that context the alleged accident has taken place not due to the fault of the claimant himself. He further contended that no criminal case has been registered against the rider of the motor cycle either for having carried two pillion riders or for having went and hit to the bus. He further contended that the Tribunal has rightly come to the conclusion that the driver of the bus is solely rash and negligent and in that regard the finding has been given and the same may be confirmed. He further contended that the deceased was working as a Carpenter and was earning Rs.15,000/- per month and the doctor who came to -9- be examined as PW3 has assessed the disability to the whole body to the extent of 40%, but Tribunal by taking 30% disability and by taking the income on the lower side has awarded the compensation on the lower side and the same requires to be enhanced. He further contended that the compensation awarded under the head of loss of amenities and artificial limb and loss of income during the laid up period is also on the lower side and the same requires to be enhanced. On these grounds he prayed for allowing the appeal by enhancing the compensation.
10. As could be seen from the judgment and award passed by the Tribunal the claimant has sustained degloving injury to left foot and his left foot below the knee was amputated. In order to substantiate the said fact he has also produced Ex.P6 wound certificate and discharge summary as per Ex.P7 and he has also got examined the doctor PW3. In his evidence he has deposed that the amputation was made to the claimant and on perusal of the
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record there are no nerves in the knee and there is stump and because of the amputation made, the disability is assessed at 40% to the whole body. It is also the case of the claimant that he was working as a Carpenter and he was getting an amount of Rs.15,000/- per month. In order to substantiate the said fact no documents have been produced. In the absence of document the Tribunal by taking the income at the rate of Rs.9,000/- per month and after taking the disability to the extent of 30% by applying the multiplier of '17' has awarded an amount of Rs.5,50,800/- towards the loss of future income.
11. Though under the normal circumstances the compensation awarded appears to be justifiable, when admittedly the accident is of the year 2015, while taking the notional income the Tribunal ought to have kept into view the year of the accident and the wages prevailing in that particular period. During 2015 the notional income of Rs.9,500/- is the yardstick which even used to be adopted for
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settlement of cases before the Lok Adalath and even as could be seen from the evidence of PW3 he has assessed the disability to the extent of 40% and when there is amputation below the stump, then under such circumstances, 40% disability appears to be just and proper. If the income is taken at the rate of Rs.9,500/- per month and the disability is taken at 40% and after applying the multiplier of '17', the claimant is entitled to an amount of Rs.7,75,200/- under the head of loss of future earnings.
12. As could be seen from the judgment and award, though the compensation awarded under the head of pain and sufferings, medical expenses, conveyance and other incidental charges appears to be just and proper, for having taken the income at the rate of Rs.9,500/-, the loss of income during the laid up period has to be enhanced. In that light, the claimant is entitled to an amount of Rs.47,500/- under the said head.
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13. As could be seen from the judgment and award the compensation awarded under the head of loss of amenities and discomforts and artificial limb is concerned, the same appears to be on the lower side. Keeping in view that there is an amputation and the claimant was said to have been working as a Carpenter, then under such circumstances he has to face discomforts and loss of amenities. In that light, an amount of Rs.1,00,000/- has been awarded under the said head and Rs.1,00,000/- has been awarded for artificial limb and future medical expenses.
14. The compensation awarded under the heads of pain and sufferings, medical expenses, traveling expenses, conveyance charges, attendant charges and other incidental expenses are just and proper.
15. Thus, in all the claimant is entitled to a total compensation of Rs.11,53,700/- as against Rs.8,06,800/-.
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16. It is the contention of the learned counsel for the Corporation that the rider of the motor cycle has also contributed to the alleged accident and in this behalf the compensation awarded itself is not justifiable.
17. As could be seen from the judgment and award and other record it is not in dispute that the bus was also proceeding from Laggere side to ring road and the claimant was also proceeding on the same direction and the records Ex.P3 discloses the fact that the accident has taken place on the left side of the road.
18. It is the contention of the learned counsel for the Corporation that the rider of the motor cycle came triple riding without there being any driving licence and because of his fault the alleged accident has taken place. It is also the contention of the Corporation that the rider of the motor cycle came towards right side of the bus rashly and negligently and rubbed the front right side near the front wheel
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of the bus and fell down on the right side along with two pillion riders and at that time the right leg touched to the right side front wheel of the bus and accident took place. Even during the course of cross examination of PW1 he has admitted that he has lost the driving licence and he has also not produced any document to substantiate the said fact. Even as could be seen from the evidence of PW1, in his evidence he has admitted that on the motor cycle they were proceeding in the road and one P.R.Karthik and Chandru were also on the motor cycle.
19. As per the Karnataka Motor Vehicles (Amendment) Rules, 2015, a motorcycle is meant only for the purpose of a rider and one pillion rider. If any person violates the said provision, then it would amounts to violation of Rules.
20. It is the contention of the learned counsel for the Corporation that the rider of the motorcycle has to ride with a proper driving license while driving the vehicle on a public road. In order to substantiate
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his contention, he has relied upon the decision of this Court in Naresh Babu's Case mentioned supra, wherein it has been observed by this Court that if a person drives two wheeler without there being a valid driving license to drive the vehicle on a public road in contravention of Section 3 of the MV Act, he disentitles to claim any compensation.
21. In view of the aforesaid proposition of law, if the entire records are perused, it would indicate that the bus was proceeding on the left side of the road and at that time, the rider of the motorcycle along with two pillion riders has tried to overtake the bus and in that context there was some impact and the claimant has sustained injuries. Though the rider of the motorcycle has not produced driveling license to substantiate his case, during the course of cross- examination, he has admitted that he lost his driving license during 2012. If the Corporation takes up the contention that the rider of the motorcycle was not having the driving licence, he has to prove the same.
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If it fail to prove the same, then under such circumstances, the said ground is not available to the Corporation. But however, when the claimant himself has admitted the fact that he was going on the motorcycle along with two pillion riders, which itself goes to show that he was not riding the motorcycle in consonance with the Rules and even at that time there was every chance of his losing control over the vehicle. Because of the said act, he went and hit the bus. If really the bus hit the motorcycle from behind as contended by the claimant, then under such circumstances, pillion riders could have also sustained the severe injuries than that of the rider of the motorcycle. On these grounds, the finding given by the Tribunal is not justifiable and the same requires to be set aside.
22. When the rider of the motorcycle himself has contributed to the accident in question, the only question that remains for my consideration is as to what extent he has contributed to the said accident.
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Admittedly, the accident has taken place on the left side of the road. Ex.P3 indicates that the bus was not having any other place on the left side of the road and there was sufficient place for the rider of the motorcycle to proceed. By coming close to the bus itself amounts to negligence on the part of the rider of the motorcycle. In that context, I hold that the rider of the motorcycle has contributed to the accident to the extent of 20% and the driver of the bus has contributed to the extent of 80%.
23. In view of the above, the finding given by the Tribunal that the driver of the bus was solely responsible for the accident is set aside and it is held that the rider of the motorcycle has contributed to the accident in question to the extent of 20% and the driver of the bus has contributed to the extent of 80%. In that light, as this Court has already enhanced the compensation to Rs.11,53,700/-, out of the said amount, 20% i.e., an amount of Rs.2,30,740/- has to be deducted as the rider of
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motorcycle has contributed to the accident to an extent of 20%. In that light, the claimant is entitled to compensation of Rs.9,22,960/-. Since the Tribunal has already awarded compensation of Rs.8,06,800/-, after deducting the same, the appellant-claimant is entitled to an additional compensation of Rs.1,16,160/- with interest at 6% per annum.
24. Accordingly, both the appeals are partly allowed. The impugned judgment and award dated 15.10.2015 passed by the Tribunal in MVC.No.1118/2015 is modified to the extent as indicated above.
The BMTC is directed to deposit the compensation awarded by the Tribunal and the additional compensation awarded by this Court within six weeks from the date of receipt of a copy of this judgment.
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The amount in deposit before this Court shall be transmitted to the concerned Tribunal.
Award shall be drawn accordingly.
SD/-
JUDGE *AP/CK/-