Partly allowed

Bipul Dolui v. the Managing Director

Karnataka HC27 Jul 2022MFA/1422/2020

Case brief

AI extract

What is this about?

Two miscellaneous first appeals were filed regarding a motor vehicle accident compensation award. The High Court upholding the negligence finding against the BMC bus driver, enhanced the compensation awarded to the injured rider from Rs.11.79 lakh to Rs.15.96 lakh due to higher disability percentage and income.

What did the court decide?

Appeal against negligence dismissed; compensation enhanced to Rs.15,95,900/- with interest at 6% p.a.; Insurance Company directed to deposit. Additional claimant appeal allowed to same extent.

Bipul Dolui Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA MISC. FIRST APPEAL NO. 3379 OF 2020 (MV-I)

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C/W

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MISC. FIRST APPEAL NO. 1422 OF 2020 (MV-I) IN M.F.A. No.3379/2020

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BETWEEN:

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THE MANAGING DIRECTOR, B.M.T.C. DEPOT, BANGALORE CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BANGALORE - 560 027. REPRESENTED BY ITS CHIEF LAW OFFICER.

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APPELLANT

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(BY SRI. F.S.DABALI, ADVOCATE)

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AND:

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Digitally signed by HEMAVATHY G Location: High Court of Karnataka

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BIPUL DOLUI, SON OF ASHUTHOSH DOLUI, AGED ABOUT 60 YEARS, RESIDENT OF NO.204/B, GANGAMMA CIRCLE, JALAHALLI, BANGALORE - 560 013.

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…RESPONDENT

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(BY SRI. SHRIPAD V SHASTRI.,ADVOCATE)

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.10.2019 PASSED IN MVC NO.504/2019 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.11,79,700/WITH INTEREST AT 8 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN M.F.A. No.1422/2020

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BETWEEN:

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BIPUL DOLUI, SON OF ASHUTHOSH DOLUI, AGED ABOUT 60 YEARS, RESIDENT OF NO.204/B, GANGAMMA CIRCLE, JALAHALLI, BANGALORE - 560 013.

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…APPELLANT

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(BY SRI. SHRIPAD V SHASTRY, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR, B.M.T.C. DEPOT, BANGALORE CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BANGALORE - 560 027.

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…RESPONDENT

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(BY SRI. F.S.DABALI, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.10.2019 PASSED IN MVC

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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NO.504/2019 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFA’S COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.3379/2020 is by the BMTC challenging the

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award of compensation both on the ground of negligence and also against the quantum.

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MFA No.1422/2020 is by the claimant seeking for enhancement.

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The case of the claimant was that while he was riding his two wheeler, he was hit from behind by BMTC bus resulting in grievous injuries to him and as a result of which, he had to undergo treatment at M.S.Ramaiah Hospital and also at Manipal Hospital and was subjected to surgeries.

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The claimant contended that he was entitled for a compensation of Rs.75,00,000/- and he was earning about

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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Rs.15,000/- per month. The Tribunal on assessment of the evidence has come to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the BMTC bus. It has also recorded a finding that the claimant had suffered 19% permanent disability to the entire body and has ultimately awarded the following amounts:

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Sl. No.	Particulars	Amount in (Rs.)
1.	Towards Pain and suffering	45,000
2.	Towards Loss of amenities	20,000
3.	Towards Nourishment, conveyance & attendant charges	10,000
4.	Towards Medical expenses	7,21,900
5.	Towards loss of future income	3,07,800
6.	Towards Loss of income during laid up period & restperiod	45,000
7.	Towards future medical expenses	30,000
	Total	11,79,700

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Sri.F.S.Dabali, learned counsel appearing for the Corporation submitted that the finding recorded by the Tribunal that the accident occurred due to the negligence

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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of the driver of the BMTC bus cannot be accepted. He sought to contend that there was no evidence to indicate that the collision was to the rear end of the two wheeler and further the IMV report also did not support this contention.

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A perusal of the sketch, which is produced as Ex.P3, indicates that the claimant was riding the two wheeler on the left side of the road and the bus which was driven on the middle of the road collided with the two wheeler. This indicates that the bus driver basically hit the two wheeler on its side. Having regard to the fact that the two wheeler is shown to be riding on the extreme left side of the road, it is quite but obvious that the accident had occurred only on the negligence on the part of the driver of the BMTC bus, who appears to have suddenly came to the left and had an impact to the two wheeler.

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It is also to be noticed here that the police after investigation have charge sheeted the driver of the BMTC

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MFA No. 3379 of 2020 C/W MFA No. 1422 of 2020

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bus, thereby indicating that the driver of the bus was responsible for the accident. The driver of the BMTC bus has however, stated that the rider of the two wheeler hit the rear right side of the bumper of the BMTC bus. This affidavit contradicts the sketch prepared and also the damage indicated in the IMV report. Having regard to this evidence that was adduced by the Tribunal, in my view the Tribunal was justified in arriving at the conclusion that the

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driver of the BMTC bus was responsible for the accident. The said finding is accordingly affirmed.

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The Tribunal has determined the monthly income of the claimant at a sum of Rs.15,000/- per month. The claimant had admittedly produced an Income Tax Return for the financial year 2017-18 which was a period prior to the accident, which indicated that he had filed a return indicating that his annual income was Rs.2,68,300/-. This indicates that two years prior to the accident, the claimant was earning on an average about Rs.21,000/-. However, it

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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is to be noticed here that the said income includes income from Bank Fixed Deposits and also from agricultural activities. Having regard to the computation of income shown in the Income Tax Returns, it would be appropriate to consider the income of the claimant at a sum of Rs.18,000/- as against Rs.15,000/- determined by the Tribunal.

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The Tribunal has determined the disability at 19% on appreciating the evidence of the doctor. The doctor who had deposed before the Tribunal has stated that the claimant had suffered 28.58% disability to the whole body and had suffered disability of 57.16% to the left lower limb. The discharge summary of Manipal Hospital indicates that at the time of discharge, the claimant was advised to have non weight bearing mobilization with walker indicating that he would need the assistance of a walker.

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The claimant has also produced physiotherapy bills indicating that he had undergone physiotherapy in the

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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months of March (29 visits); April (19 visits); May (24 visits); June (24 visits); and July (25 visits). This indicates that the disability was prevalent right upto July and the claimant had to virtually undertake physiotherapy every day.

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In the light of this evidence, in my view, it would be appropriate to consider the total body disability at 25% as against 19% determined by the Tribunal. As a consequence, the claimant would be entitled to a sum of Rs.18,000 x 12 x 9 x 25% = Rs.4,86,000/- towards 'loss of future income' .

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The Tribunal has awarded a sum of Rs.45,000/towards pain and suffering, Rs.20,000/- towards loss of amenities and Rs.10,000/towards Nourishment, Conveyance and Attendant charges.

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Having regard to the fact that the claimant had to undergo physiotherapy for more than six months, it would

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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be appropriate to enhance the amount of compensation towards 'Pain and Suffering from' Rs.45,000/to Rs.1,00,000/- and also enhance the amount under the head 'loss of amenities' from Rs.20,000/- to Rs.50,000/- Having regard to the fact that the claimant has been undergoing conveyance for six months, the amount awarded towards 'nourishment charges' would also have to be enhanced to Rs.50,000/ -.

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The learned counsel for the claimant contended that the sums awarded towards medical expenses did not take into consideration a sum of Rs.43,200/- paid towards physiotherapy as per the bills dated 01.06.2019 and it has only taken into consideration Rs.29,400/- as per the bill dated 29.07.2019.

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In this view of the matter, the compensation awarded towards 'medical expenses' is to be enhanced by further sum of Rs.50,000/- and the claimant is thus entitled to a total sum of Rs.7,71,900/- .

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10 -

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MFA No. 3379 of 2020 C/W MFA No. 1422 of 2020

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The Tribunal has taken the laid up period as three months. Since the evidence on record indicates that the claimant had been undergoing physiotherapy daily for over six months, it will have to be held that the laid up period for the claimant would be a period of six months. As I have determined the income at the rate of Rs.18,000/-, the loss of income for the laid up period would be Rs.18,000 x 6 months = Rs.1,08,000/- .

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The Tribunal has awarded a sum of Rs.30,000/towards future medical expenses. Admittedly, the doctor has not stated as to what is the amount that would have to be spent on future medical expenses. The Tribunal is therefore, justified in awarding a sum of Rs.30,000/-.

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Consequently the award of the Tribunal is modified and the claimant would be entitled to the following compensation:

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MFA No. 3379 of 2020 C/W MFA No. 1422 of 2020

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Sl. No.	Particulars	Amount in (Rs.)
1.	Towards Pain and suffering	1,00,000
2.	Towards Loss of amenities	50,000
3.	Towards Nourishment, conveyance & attendant charges	50,000
4.	Towards Medical expenses	7,71,900
5.	Towards loss of future income	4,86,000
6.	Towards Loss of income during laid up period & restperiod	1,08,000
7.	Towards future medical expenses	30,000
	Total	15,95,900

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19. Thus, the appeal filed by the BMTC is dismissed insofar it relates to the negligence. The appeal filed by the

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claimant is allowed in part . The claimant is entitled to

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an enhanced compensation of (Rs.15,95,900-

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Rs.11,79,700)= Rs.4,16,200/-.

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The enhanced amount shall carry interest at the rate

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

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MFA No. 3379 of 2020

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C/W MFA No. 1422 of 2020

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The Insurance Company is directed to deposit the enhanced compensation within two months from the date of receipt of a copy of this order.

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The amount in deposit shall be transferred to MACT for disbursal in terms of the impugned award.

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SD/JUDGE

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Bipul Dolui v. the Managing Director

Case brief

What is this about?

What did the court decide?

Bipul Dolui v. the Managing Director

Case brief

What is this about?

What did the court decide?

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