Partly allowed

Bangalore Metropolitan v. Ms Leelambika

Karnataka HC25 Nov 2020MFA/6746/2018

Case brief

AI extract

What is this about?

High Court reviewed compensation awarded in motor accident claim. Court reduced contributory negligence from 20% to 30%. Granted additional expense for future medical needs. Total compensation adjusted to Rs.23.75 lakhs at 6% interest.

What did the court decide?

Total compensation determined at Rs.23,75,450/- with interest at 6% per annum from date of petition till realization.

Bangalore Metropolitan Vs Ms Leelambika — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.5546/2018 c/w M.F.A.No.6746/2018 (MV)

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IN M.F.A.No.5546/2018:

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BETWEEN :

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Ms. LEELAMBIKA D/O K.L.SRINIVASAN, AGED ABOUT 30 YEARS, OCC:TEACHER, R/AT NO.196, GROUND FLOOR, 1^ST CROSS, 1^ST MAIN, SHARADHA COLONY, BASAVESHWAR NAGAR, BENGALURU-560079 ...APPELLANT

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(BY SRI M.R.BALAKRISHNA, ADV.)

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AND :

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1 . THE BENGALURU METROPOLITAN TRANSPORT CORPORATION, SHANTHINAGAR, K.H.ROAD, BENGALURU-560 027 REP BY ITS MANAGING DIRECTOR

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2 . THE MANAGING DIRECTOR BMTC, K.H.ROAD, SHANTHINAGAR, BENGALURU-560027 …RESPONDENTS

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(BY SRI D.VIJAYAKUMAR, ADV.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 29.05.2018 PASSED IN MVC No.508/2017 ON THE FILE OF THE III ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.6746/2018:

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BETWEEN :

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BANGALORE METROPOLITAN TRANSPORT CORPORATION, CENTRAL OFFICES, K.H.ROAD, SHANTHINAGAR, BENGALURU-560027 REP. BY ITS MANAGING DIRECTOR

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...APPELLANT

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(BY SRI D.VIJAYAKUMAR, ADV.)

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AND :

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Ms. LEELAMBIKA D/O K.L.SRINIVASAN, AGED ABOUT 31 YEARS, OCC:TEACHER, R/AT NO.196, GROUND FLOOR, 1^ST CROSS, 1^ST MAIN, SHARADHA COLONY, BASAVESHWAR NAGAR, BENGALURU-560079 …RESPONDENT

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(BY SRI M.R.BALAKRISHNA, ADV.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 29.05.2018 PASSED IN MVC No.508/2017 ON THE FILE OF THE III ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), AWARDING COMPENSATION OF Rs.25,94,800/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are directed against the judgment and award dated 29.05.2018 passed in MVC

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No.508/2017 by the III Additional Judge, Member, MACT, Court of Small Causes, Bengaluru (‘Tribunal’ for short).

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The claimant has instituted petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained by her in the road traffic accident which occurred on 06.10.2016 at about 07.25 a.m. alleging actionable negligence on the driver of the BMTC Bus bearing registration No.KA-57F-169 (offending vehicle) as the cause of the accident.

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It was averred in the claim petition that the

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claimant was aged about 30 years at the time of the accident, working as a computer science teacher (PGT) at Airforce School, Hebbal, Bengaluru and drawing salary of Rs.26,250/- per month. Due to the accidental

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injuries sustained by her owing to the rash and negligent driving of the driver of the offending vehicle, she is suffering for life. She has taken treatment as an inpatient and underwent multiple surgeries on right leg at M.S. Ramaiah Hospital, Bengaluru at the first instance and thereafter at St. Martha’s Hospital, Bengaluru. As per the advice of the doctor, she is in constant follow-up treatment as an outpatient. It was contended that she has incurred huge medical expenses and other incidental charges besides suffering pain and agony, loss of income. On these set of facts, compensation was sought by the claimant.

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In response to the notice issued by the Tribunal, the respondent – BMTC (Corporation) has appeared and contested the claim. Written statement was filed denying the petition averments. The main defence was that the alleged accident has occurred due to the sole negligence of the claimant herself, as she

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attempted to enter the other path of the road where crossing is prohibited, but while crossing the road median, due to slip she fell down on the road. The injuries sustained by her and the medical expenses incurred, disablement suffered by her were denied, besides setting up the defence that the claim made by the claimant is highly excessive and exorbitant.

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On the basis of the pleadings, issues were

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framed and answered allowing the appeal in part awarding total compensation of Rs.25,94,800/- with interest at the rate of 9% per annum from the date of petition till the date of deposit, fixing the contributory negligence of 20% on the claimant and 80% on the driver of the offending vehicle.

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Aggrieved by the said judgment and award, the claimant has preferred MFA No.5546/2018, whereas the Corporation has preferred MFA No.6746/2018 both challenging the contributory

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negligence fixed on them as well as the quantum of

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compensation awarded.

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Learned counsel for the Corporation argued

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that the Tribunal failed to appreciate the oral and documentary evidence adduced by the Corporation in a proper and perspective manner. The accident in question occurred due to the sole negligence of the claimant who was crossing the road in violation of the traffic rules and regulations. It is imperative that the pedestrian has to cross the road in the designated place i.e., the zibra crossing, whereas the claimant was crossing the median. The Tribunal though categorically observed that the oral version of the claimant is not fully supported with corroborated documents, rejected the sole negligence of the claimant alleged by the Corporation, apportioned the negligence only to an extent of 20% on the claimant. Learned counsel further argued that the Tribunal has awarded huge medical

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expenses to the tune of Rs.24,61,000/- without there being satisfactory documents produced to substantiate the same. Learned counsel argued that no documents were produced to show the injured - claimant had taken leave for six months and she had drawn any salary during that period. The Tribunal erred in awarding huge compensation towards loss of income during laid up period. Accordingly, he submits that minimum 50% contributory negligence has to be fixed on the injured – claimant and the compensation requires to be scaled down.

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Learned counsel for the claimant submitted

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that absolutely there was no contributory negligence on the part of the claimant; the accident has caused solely due to the rash and negligent driving on the part of the driver of the offending vehicle and the police have registered a case against him and filed charge-sheet before the jurisdictional Magistrate Court accordingly.

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As per the spot sketch, the claimant was crossing the road on the pedestrian crossing line. No documentary evidence has been placed by the Corporation to rebut the same. The claimant has suffered grievous crush injury on right leg and it is difficult to eke out her livelihood. The claimant is on medical treatment given as on date. She is walking with calipers. The Tribunal overlooked these vital aspects in awarding compensation. The compensation awarded under the different heads is inadequate and disproportionate to the gravity of injuries sustained and its impact on the claimant for the rest of her life. Accordingly, he seeks for enhancement of compensation fixing the entire negligence on the driver of the offending vehicle.

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We have carefully considered the rival submissions of the learned counsel for the parties and perused the original records.

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The factum of accident and the injuries

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sustained by the claimant is not in serious dispute. The controversy is inasmuch as the negligence aspect determined by the Tribunal and the quantum of compensation qua the injuries sustained by the claimant. The Tribunal analyzing the evidence has arrived at a conclusion that the accident in question took place when the claimant was crossing the road, but not at a junction as stated by the claimant. It has been observed that the oral evidence of the claimant is not fully supported with corroborated documents. On the other hand, the records would reveal that the claimant being a pedestrian intended to cross the road at a place not designated for crossing, at that time, the alleged accident took place. It is the duty of the pedestrian to use the road with due care and caution, particularly while crossing the road and to look out for oncoming traffic. The degree of negligence has been evaluated fixing the contributory negligence at 20% for the

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purpose of determining the compensation. It has been categorically observed that the pedestrian has crossed the road at a point where she ought not to have done.

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The evidence on record would disclose that

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the spot of the accident was next to the road median. The claimant has admitted in the cross-examination that she has seen the offending vehicle coming, despite the same she has taken the risk to cross the road. All the more, so the driver of the vehicle ought to have been more prudent and circumspect while driving. But it cannot be lost sight of the fact that a duty is also cast on a pedestrian and should use due care and caution in going upon and crossing the road and it is the duty of the pedestrian to lookout for oncoming traffic. It is needless to say that the pedestrian has to give the driver of a vehicle, a plenty of time to see and slow down and start before attempting to cross or put one foot on the crossing.

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Moreover, whenever a pedestrian is crossing

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over a roadway at any place other than which is meant for pedestrian crossing, no claim can be made on any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that it was only the driver of the vehicle in question who was solely responsible for the accident. It has also to be noted that there is no evidence forthcoming to show that it was the pedestrian crossing. In view of the fact that the claimant had crossed the road where she was not supposed to cross, certain degree of contributory negligence will have to be attributed to her.

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As aforesaid, it is the bounden duty of the pedestrian to look out for the oncoming traffic from all directions before crossing the road where there was no designated crossing (zibra crossing) for the pedestrians.

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Pedestrians cannot cross the road at their convenience, more particularly where the flow of traffic is high. Hence, we are of the considered view that it would be appropriate to fix the contributory negligence at 30% on the part of the injured - claimant.

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The Tribunal has awarded Rs.24,60,000/-

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towards medical expenses which has been seriously objected to, by the learned counsel for the Corporation. We do not find any merit in the said arguments advanced since the entire medical expenses awarded are supported by the medical bills and prescriptions. We are astound by the arguments of the learned counsel for the Corporation that there is no material evidence placed on record by the claimant for the proof of payment made. According to the learned counsel no receipts are furnished. The employer of the claimant appears to have reimbursed the medical expenses is wholly imaginary. It is unrealistic to expect the claimant

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to produce the mode/source of payment towards

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medical bills. It would be suffice if the prescriptions and

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the bills are produced by the claimant. Merely on surmises and conjectures, no denial of the medical expenses incurred could be made. Indisputedly, no compensation towards future medical expenses has been awarded by the Tribunal.

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Learned counsel for the claimant has filed

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I.A.No.1/2020 seeking permission to produce the following documents:-

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1. Medical Bills issued by the Ramaiah Medical College Hospital (total 69 bills amounting Rs.18,420/-);

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2. Purchase bills (total 34 bills amounting Rs.81,647.60);

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3. Copy of the certificate dated 19.10.2020 issued by Orthopedic surgeon Dr. Yeshwanth Kumar (PW3) attached to Ramaiah Memorial Hospital.

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4. Copy of the proposal issued by Ottobock Rehabilitation service proposal dated 19.10.2020.

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These documents would disclose that the

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claimant has further incurred expenses towards the medical treatment subsequent to passing of the award. Evidence of PW3 also indicates that she requires future medical treatment. It is the contention of the claimant that her right leg requires to be amputated as per the medical advice for which she has to incur expenses. Having regard to the grievous nature of injuries sustained by the claimant and the medical treatment which she requires to be taken in future, we deem it appropriate to award a sum of Rs.1,50,000/- towards future medical expenses. In all other respects, the compensation awarded by the Tribunal deserves to be confirmed.

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Thus, the total compensation would be Rs.33,93,500/-. Deducting 30% towards contributory

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negligence, the claimant would be entitled to the compensation Rs.23,75,450/as against

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Rs.25,94,800/- awarded by the Tribunal.

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The rate of interest awarded by the Tribunal at 9% per annum on the quantum of compensation determined is modified to 6% per annum from the date of the petition till its realization in the wake of fall of rate of interest on fixed deposits and keeping in mind the rate of interest awarded by this Court at 6% per annum consistently in identical circumstances.

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Hence, the following

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ORDER

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i) The appeal filed by the Corporation in MFA No.6746/2018 is partly allowed. The appeal filed by the claimant in MFA No.5546/2018 is dismissed.

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ii) The claimant shall be entitled to total compensation of Rs.23,75,450/- with

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interest at the rate of 6% per annum from the date of petition till its realization.

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iii) The Corporation shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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iv) The claimant is at liberty to withdraw the amount after due identification. v) Draw modified award accordingly. vi) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith. vii) All pending I.As. stand disposed of.

Sd/-

JUDGE

Sd/JUDGE

PMR

Bangalore Metropolitan v. Ms Leelambika

Case brief

What is this about?

What did the court decide?

Bangalore Metropolitan v. Ms Leelambika

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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