Partly allowed

Miss Nisarga v. Vs the Managing Director

Karnataka HC26 Jul 2022MFA/541/2021

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded to a minor injured in a motor vehicle accident against a BMTC bus. The court affirmed medical expenses but increased amounts for pain and suffering, conveyance, disability, and loss of marriage prospects.

What did the court decide?

Claimant entitled to enhanced compensation of Rs.2,14,800/- with 6% interest from date of petition; Insurance Company directed to deposit the enhanced amount.

Miss Nisarga v Vs the Managing Director — 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 26^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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MISCELLANEOUS FIRST APPEAL No.4844 OF 2020 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL No.541 OF 2021 (MV-I)

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IN M.F.A. No.4844/2020

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BETWEEN:

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THE MANAGING DIRECTOR, B M T C SARIGE, K.H.ROAD, SHANTHI NAGAR, BANGALORE - 560 027.

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… APPELLANT

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(BY SRI.D.VIJAYAKUMAR, ADV.)

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AND:

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MISS. NISARGA V., D/O VIJAYA KUMAR, AGED ABOUT 20 YEARS, R/O NO.405, SHILPITHA SPLENDOR ANNEX, CHINNAPPA LAYOUT, MAHADEVAPURA, BANGALORE - 560 048.

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… RESPONDENT

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(BY SRI.VIJAY KUMAR T., ADV.,)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 13.12.2019, PASSED IN MVC NO.3651/2018, ON THE FILE OF THE IX-ADDITIONAL SMALL CAUSES JUDGE AND ACMM., COURT OF SMALL CAUSES, MEMBER, AMACT-7, BENGALURU (SCCH-7), AWARDING COMPENSATION OF RS.10,89,510/- A/W. FUTURE INTEREST AT THE RATE OF 6 PERCENT P.A., (EXCLUDING ON FUTURE MEDICAL EXPENSES OF RS.20,000/-) FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT.

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IN M.F.A. No.541/2021

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BETWEEN:

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MISS. NISARGA V., D/O VIJAY KUMAR, AGED ABOUT 22 YEARS, R/AT NO.405, SHILPITHA, SPLERNDOR ANNEX, CHINNAPPA LAYOUT, MAHADEVPURA, BENGALURU - 560 048.

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… APPELLANT

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(BY SRI.VIJAY KUMAR T., ADV.)

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AND:

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

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… RESPONDENT

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(BY SRI.D.VIJAYAKUMAR, ADV.,)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.12.2019 PASSED IN MVC NO.3651/2018 ON THE FILE OF IX ADDITIONAL SMALL CAUSES JUDGE AND ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU SCCH - 7, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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MFA No.4844/2020 is by the BMTC, challenging the finding of the Tribunal that the driver of the BMTC alone was responsible for the accident and also the quantum awarded.

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MFA No.541/2021 is by the claimant seeking for enhancement.

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As per the evidence of the driver of the BMTC

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bus who was examined as RW1, the accident occurred when the claimant was trying to over take the bus from the left side of the bus and she lost her balance and hit the centre door of the bus and as a result, fell

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down on the road and had suffered injuries. Thus, the fact that there was an impact between the two wheeler and the bus, is admitted by the driver of the BMTC bus himself and thus, it cannot be in dispute that the accident did occur between the bus and the two wheeler. Having regard to the evidence of the driver of the BMTC bus, the argument sought to be advanced by Sri.Vijaya Kumar, learned counsel, on the ground that the accident itself was doubtful, cannot be accepted.

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During the course of cross examination, the driver of the BMTC bus has also admitted that there was a bus stop near the point of impact. This indicates that, in all probability, the bus driver swerved his bus to the left in order to make an halt at the bus stop and during this swerving the impact occurred.

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It is also to be noticed here that the police after investigation have laid a charge sheet against the driver of the BMTC bus and these factors, in totality, indicate that the negligence was entirely on the part of the BMTC bus. The argument of the learned counsel for the BMTC that the accident occurred due to the negligence of the rider of the two wheeler ie., the claimant, cannot therefore be accepted.

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The Tribunal has awarded the following sums after assessing the evidence:

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Sl. No.	Particulars	Amount in (Rs.)
1.	Pain and sufferings,mental	70,000
2.	Medical expenses	6,30,310
3.	Special diet and conveyance	10,000
4.	Permanent disability	2,59,200
5.	Future medical expenses	20,000
6.	Loss of marriage prospects	1,00,000
	Total	10,89,510

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It is to be stated here that the claimant, a 19 year old girl studying to be an Architecture sustained

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a degloving injury to the right upper limb, fracture of right radial head, right humerus distal end and was inpatient at Manipal Hospital for 14 days during which period a wound debridement with an external fixator was conducted and also excisional debridement was done apart from skin grafting.

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Having regard to the fact that the claimant suffered a degloving injury to the right upper limb and also suffered fractures and underwent two surgeries, the amount of Rs.70,000/- awarded by the Tribunal towards pain and suffering is inadequate and in my view, it would be appropriate to award a sum of Rs.1,50,000/- towards 'Pain and Suffering' .

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The Tribunal has awarded a sum of Rs.6,30,310/- towards actual medical expenses and these are based on the bills and therefore, it is affirmed.

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The Tribunal has awarded a sum of Rs.10,000/towards special diet and conveyance. Since, the claimant was in the hospital for more than 15 days, in my view, it would be appropriate to award a sum of Rs.30,000/- towards 'Special Diet and Conveyance' .

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As far as the permanent disability is concerned, the Tribunal has awarded a sum of Rs.2,59,200/- by taking the notional income of Rs.8,000/- per month. The claimant is a 1st year student studying Architecture and she claimed that she was earning a sum of Rs.10,000/- as Data Entry Operator while studying. In my view since the claimant was working as a Data Entry Operator, her claim that she was earning a sum of Rs.10,000/- per month deserves to be accepted. The assessment of disability of 15% by the Tribunal and the application of '18' multiplier does not call for any interference.

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Consequently, the claimant would be entitled to a sum of Rs.10,000 x 12 x 18 x 15% = Rs.3,24,000/- .

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The claimant was awarded a sum of Rs.20,000/towards future medical expenses which is just and proper and does not deserve any enhancement.

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The Tribunal has also awarded a sum of Rs.1,00,000/- towards loss of marriage prospects. In my view, having regard to the fact that the claimant has suffered reduction in sensation over grafted area with reduced power of upper limb, it would be appropriate to award a sum of Rs.1,50,000/- towards 'loss of marriage prospects' as against a sum of Rs.1,00,000/- awarded by the Tribunal.

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Consequently, the claimant would be entitled to the following amount:

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Sl. No.	Particulars	Amount in (Rs.)
1.	Pain and sufferings,mental	1,50,000
2.	Medical expenses	6,30,310
3.	Special diet and conveyance	30,000
4.	Permanent disability	3,24,000
5.	Future medical expenses	20,000
6.	Loss of marriageprospects	1,50,000
	Total	13,04,310

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The appeal filed by the BMTC is dismissed and

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the appeal filed by the claimant is allowed in part . The claimant is entitled to an enhanced compensation

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of (Rs.13,04,310 - Rs.10,89,510) = Rs.2,14,800/-

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The enhanced amount shall carry interest at the rate of 6% per annum from the date of petitions, till its realization.

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

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The amount in deposit shall be transferred to

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Tribunal. The excess amount, if any left, to be refunded to the insurer.

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SD/JUDGE

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Miss Nisarga v. Vs the Managing Director

Case brief

What is this about?

What did the court decide?

Miss Nisarga v. Vs the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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