Partly allowed

The Division Manager Bmtc v. Annayappa

Karnataka HC7 Jun 2022MFA/2531/2020

Case brief

AI extract

What is this about?

In two motility accidents, the High Court allowed appeals partly. It upheld the finding of driver negligence but enhanced total compensation to Rs.4,63,154/- from Rs.2,23,614/- and reduced the interest rate from 9% to 6%. The judgment quantified damages including loss of future income and amenities.

What did the court decide?

Compensation enhanced to Rs.4,63,154/-; interest rate reduced to 6% p.a.; further deposit to be made with fee deduction.

The Division Manager Bmtc Vs Annayappa — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.2531 OF 2020(MV) C/W MFA No.7047 OF 2019(MV)

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IN MFA No.2531/2020:

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BETWEEN:

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THE DIVISION MANAGER, BMTC, K H ROAD, BENGALURU – 580 027. 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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ANNAYAPPA, S/O HANUMAIAH, AGED 55 YEARS, R/AT VINAYAKA NAGARA, HESARAGHATTA, BENGALURU – 560 088.

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…RESPONDENT

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(BY SRI.SHRIPAD.V.SHASTRI,ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DATED 30.04.2019, PASSED IN MVC NO.5403/2018, ON THE FILE OF I-ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-11), AWARDING COMPENSATION OF RS.2,18,614/- WITH INTEREST AT 9 PERCENT P.A., FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA No.7047/2019:

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BETWEEN:

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ANNAYAPPA, S/O HANUMAIAH, AGED ABOUT 55 YEARS, R/AT VINAYAKA NAGARA, HESARAGHATTA, BENGALURU – 560 088. …APPELLANT (BY SRI.SHRIPAD.V.SHASTRI., ADVOCATE)

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AND:

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THE DIVISION MANAGER, BMTC, K H ROAD, BENGALURU – 580 027.

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

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DATED 30.04.2019 PASSED IN MVC NO.5403/2018, ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & MACT BENGALURU (SCCH-11), PARTLY ALLOWING

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THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.2531/2020 has been filed by the BMTC and MFA No.7047/2019 has been filed by the claimant under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) being aggrieved by the judgment and decree dated 30.04.2019 passed by the I Additional Small Causes Judge & MACT, Bengaluru in MVC No.5403/2018.

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Facts giving rise to the filing of the appeals briefly stated are that on 22.08.2018 at about 04.00 P.M., the claimant was traveling as a passenger in BMTC Bus bearing Registration No.KA-57-F-1945 which was driven by its driver at a high speed and in a rash and negligent manner drove the said Bus without observing the hump, consequently the claimant

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jumped and fell down inside the Bus. As a result of the same, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent/BMTC appeared through counsel and filed written statement in which the averments made in the petition were denied.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was

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examined as PW-1, another witness was examined as PW-2 and Dr Nagaraja B. N., was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P23. On behalf of the respondents, one witness was examined as RW-1 but no document was exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,23,614/- along with interest at the rate of 9% p.a. and directed the respondent/Corporation to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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Sri F. S. Dabali, learned counsel for the BMTC has raised the following contentions:

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Firstly, the claimant has suffered injuries due to his negligence. If he took some precautionary measures, he would have not got any injuries in the accident. Except the claimant, no other passengers in the Bus has suffered injuries. Therefore, he has suffered injuries due to his negligence. The Tribunal is not justified in holding that the driver of the Bus alone was negligent in causing the accident.

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Secondly, even though the claimant claims that he was working as a driver and was earning Rs.12,000/- per month and he has produced Salary Certificate and Bank Statement, the monthly income assessed by the Tribunal Rs.9,000/- is on higher side.

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Thirdly, PW-3, the doctor has stated in his evidence that the claimant has suffered total physical disability of 30% to lower limb and 10% to whole body but he was not a treated doctor. The whole body

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disability at 10% assessed by the Tribunal is on the higher side.

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Fourthly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on higher side.

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Lastly, in view of judgment of the Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the claimants are entitled for 6% interest

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but the Tribunal has granted 9% interest is also on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company.

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Per contra, Sri Shripad V. Shastri, learned counsel for the claimant has raised following counter contentions:

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Firstly, it is not in dispute that due to the driver applied the break and without observing the hump, the claimant fell down. The Police has registered a FIR against the driver of the Bus and filed the charge sheet. Considering all these documents, the Tribunal is justified in held that the driver of the Bus alone was negligent in causing the accident.

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Secondly, even though the claimant claims that he was working as a driver in the School Bus and earning Rs.12,000/- per month, but the Tribunal has taken the notional income as merely as Rs.9,000/- per month.

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Thirdly, due to the accident, the claimant has suffered L1 vertebra with implants in situ. PW-3, the doctor has stated in his evidence that the claimant has suffered total physical disability of 30% to lower limb and 10% to whole body. Since he was working as a

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driver, it will affect his avocation. But the Tribunal has erred in taking the whole body disability at only 10%.

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Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 11 days days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other heads are on the lower side. Hence, he sought for enhancement of compensation.

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Heard the learned counsel for the parties and perused the judgment and award and original records.

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The case of the claimant that on 22.08.2018 at about 04.00 P.M., the claimant was

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traveling as a passenger in BMTC Bus bearing Registration No.KA-57-F-1945 which was driven by its driver at a high speed and in a rash and negligent manner drove the said Bus without observing the hump, consequently the claimant jumped and fell down inside the Bus and sustained grievous injuries and was hospitalized. Immediately after recovered, he has filed a complaint. To prove his case, he has examined himself as PW-1, in his evidence, he has reiterated the statement made in the claim petition. He has also produced FIR as per Ex.P1, Complaint as per Ex.P2, Sketch as per Ex.P3, Mahazar as per Ex.P4, IMV report as per Ex.P5 and the Charge sheet as per Ex.P6.

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It is not in dispute the claimant was traveling in the offending Bus. Since the driver of the said Bus drove the same in a rash and negligent manner without observing the hump, the claimant fell down

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and suffered injuries, the same is evident from the complaint, FIR and the Mahazar. The Police has also filed a charge sheet against the driver of the offending Bus. Therefore, the Tribunal is justified in holding that the driver of the Bus was negligent in causing the accident.

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In respect of the quantum, even though the claimant claims that he was earning Rs.12,000/- per month as a driver in the School Bus, he has produced Salary Certificate as per Ex.P12 and the Bank Statement as per Ex.P17. It is very clear from the said documents, he was earning Rs.10,350/- per month. Therefore the monthly income of the claimant has to be assessed as Rs.10,350/- per month.

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As per wound certificate, the claimant has sustained traumatic L1 compression fracture. PW-3, the doctor has stated in his evidence that the claimant has suffered fracture of L1 vertebra and he has total

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disability of 30% to lower limb and even the Disability Evaluation Form as per Ex.P22, the disability assessed by the doctor is also 30%. The claimant has also produced driving licence to show that he was working as a driver. Since he was working as a driver, the fracture of L1 vertebra affects his future avocation. Considering the injuries sustained by the claimant and considering his avocation, I am of the opinion that the whole body disability can be assessed at 20%. The claimant is aged about 53 years at the time of the accident and multiplier applicable to his age group is ‘11’. Thus, the claimant is entitled for compensation of Rs.2,73,240/- (Rs.10,3501211*20%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 04 months. Therefore, the claimant is entitled for

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compensation of Rs.41,400/- (Rs.10,350*4 months) under the head ‘loss of income during laid up period’.

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The claimant was treated as inpatient for more than 11 days in the hospital and thereafter, has received further treatment. Hence, I am inclined to enhance the compensation awarded under the head of ‘conveyance, nourishment and attendance charges’ from Rs.3,300/- to Rs.10,000/-.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.20,000/- to Rs.50,000/- ‘pain and suffering’ from Rs.15,000/- to Rs.40,000/-.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	15,000	40,000
Medical expenses	28,514	28,514
Food, nourishment, conveyance and attendant charges	3,300	10,000
Loss of income during laid up period	18,000	41,400
Loss of amenities	20,000	50,000
Loss of future income	1,18,800	2,73,240
Future medical expenses	20,000	20,000
Total	2,23,614	4,63,154

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In the result, the appeals are allowed in

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part . The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.4,63,154/- as against Rs.2,23,614/-.

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In view of judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’, the interest awarded by the Tribunal 9% is scale down to 6%.

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The respondent/BMTC is directed to deposit the compensation amount after deducting Rs.5,000/which has already paid to the claimant as interim compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The amount in deposit shall be transmitted to the Tribunal.

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Sd/JUDGE

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HA/-

The Division Manager Bmtc v. Annayappa

Case brief

What is this about?

What did the court decide?

The Division Manager Bmtc v. Annayappa

Case brief

What is this about?

What did the court decide?

What the court decided

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