Partly allowed

Kapil Batra v. the Managing Director

Karnataka HC12 Aug 2022MFA/6405/2017

Case brief

AI extract

What is this about?

This High Court dismissed the Motor Accidents Appeal filed by BMTC challenging negligence and compensation. The claimant's appeal for enhanced compensation was partly allowed. The Court found the bus driver rash and negligent, upheld the design liability, but enhanced the total compensation to Rs. 13,01,173/- due to incorrect calculation of medical and ancillary expenses. Interest and costs remain

What did the court decide?

Compensation enhanced to Rs. 13,01,173/- (an enhancement of Rs. 1,34,400/-) with interest at 6% p.a. from the date of petition till realization. The Corporation's appeal was dismissed.

Kapil Batra Vs the Managing Director — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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MFA NO.4785 OF 2017 (MV) C/w MFA.NO.6405 OF 2017

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IN MFA.No.4785/2017

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BETWEEN :

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THE MANAGING DIRECTOR, BENGALURU METROPOLITAN TRANSPORT, CORPORATION LIMITED (BMTC), K.H.ROAD, SHANTHINAGAR, BENGALURU-560 027, REPRESENTED BY IT'S CHIEF LAW OFFICER.

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

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AND :

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MR. KAPIL BATRA, S/O. JAYAGOPAL BATRA, 56 YEARS, R/AT NO.956, 15^TH MAIN ROAD, 1^ST BLOCK, 2^ND CROSS, 3^RD STAGE, BASAVESHWARANAGAR, BENGALURU-560 079.

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... RESPONDENT (BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.03.2017 PASSED IN MVC.NO.2764/2016 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII

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ACMM, BENGALURU, AWARDING COMPENSATION OF RS.11,66,773/- WITH INTEREST AT THE RATE OF RS.6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA.No.6405/2017

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BETWEEN :

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MR. KAPIL BATRA, S/O. JAYAGOPAL BATRA, AGED ABOUT 56 YEARS, R/AT NO.956, 15^TH MAIN ROAD, 1^ST BLOCK, 2^ND CROSS, 3^RD STAGE, BASAVESHWARANAGAR, BENGALURU-560 079.

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… APPELLANT

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(BY SRI. GURUDEVA PRASAD K.T, ADVOCATE)

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AND :

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THE MANAGING DIRECTOR, BENGALURU METROPOLITAN, TRANSPORT CORPORATION LIMITED. K.H.ROAD, SHANTHINAGAR, BENGALURU-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 UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.03.2017 PASSED IN MVC.NO.2764/2016 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE AND 28TH ACMM, BENGALURU, 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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The appeal in MFA.No.4785/2017 is filed by the Bengaluru Metropolitan Transport Corporation (for short Corporation), challenging the judgment and award dated 31.03.2017 in MVC.No.2764/2016 by the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, (hereinafter referred to as ‘the Tribunal’ for short) challenging the negligence attributed on the part of the driver of the bus and also for quantum of compensation.

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The appeal in MFA.No.6405/2017 is filed by the claimant challenging the judgment and award dated 31.03.2017 passed by the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, (hereinafter referred to as ‘the Tribunal’ for short) in MVC. No.2764/2016, seeking for enhancement of the compensation.

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Brief facts of the case are that on 11.04.2016 at about 11.30 a.m., while the claimant was traveling as a rider on Honda Activa bearing Reg.No.KA-02-EG-5020 from

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KHB Colony on Magadi Main Road towards Tolgate, Bengaluru, at that time, a BMTC bus bearing registration No.KA-57-F-405 driven by its driver in a rash and negligent manner came from behind on the said road and lost control over his vehicle and dashed against his Honda Activa. Due to the impact, he fell down and sustained grievous injuries to his right leg. Immediately, he was shifted to Madhu hospital for first aid and then shifted to Manipal Hospital, Bengaluru.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he has spent huge amount towards medical expenses, conveyance, etc. The accident occurred purely on account of the rash and negligent driving of the BMTC bus by its driver. Therefore, petitioner preferred claim petition and claimed a compensation of Rs.20,00,000/-.

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After service of notice, the respondent appeared

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before the Tribunal through its counsel and filed statement

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of objections denying liability and prayed for dismissal of the claim petition.

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The claimant to prove his case examined himself as PW.1, Doctor as PW.3 and one more witness as PW.2. and got marked Exs.P.1 to P.33. The respondent got examined RW-1 and did not mark any documents.

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Based on the pleadings and the evidence let in, the Tribunal came to the conclusion that accident occurred due to rash and negligent driving of the driver of the offending BMTC bus and has awarded a compensation of Rs.11,66,773/- with interest at 6% p.a. from the date of the petition till its realization. Being not satisfied by the award, the claimant has preferred MFA.No.6405/2017 and respondent - Corporation has preferred MFA.No.4785/2017.

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The contention of the claimant is that the compensation awarded is on the lesser side and sought for enhancement of the same. The contention of the Corporation is that accident did not happen due to negligent

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driving of the Bus. It is also contended that the compensation awarded is on the higher side.

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Sri. F.S. Dabali, learned counsel for respondent -

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Corporation contended that the accident has not occurred due to rash and negligent driving of the Bus but the claimant while riding Honda Activa had dashed the right side body of the bus and had fallen himself to the right side divider. Therefore, the accident was due to self negligence of the claimant himself. Further, it is submitted that the claimant was riding Honda Activa at a junction near to road divider and has lost control over the vehicle and dashed against the road median divider and fell himself but falsely fastened on the driver of the bus. Therefore, learned counsel for the respondent has relied on the evidence of the RW1 - Mr. Shashikumar D.C, who is the driver of the bus.

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Further, on the other hand, the learned counsel for the claimant submitted that the driver of the bus while driving the bus in a rash and negligent manner dashed the Honda Activa from behind. Due to which, the claimant has

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suffered grievous injuries. Therefore, he categorically stated that the driver of the bus is negligent and caused the accident. He further submitted that all the documentary evidence prove the fact that the driver of the bus was rash and negligent while driving the bus and also filing of the charge sheet itself is against the driver of the bus which fortify the fact that the bus driver was rash and negligent. Therefore, it is categorically held by the Tribunal that the driver of the bus has caused the accident, which needs no interference on that finding.

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In the present case, it is urged by the claimant that on 11.04.2016 at about 11.30 a.m., while the claimant was riding Honda Activa bearing Registration No.KA-02-EG5020 from KHB colony on Magadi Main road towards Tolgate, Bengaluru, slowly and cautiously, at that time, immediately BMTC bus bearing Registration No.KA-57-F405 driven by the driver at high speed and in a rash and negligent manner without observing the traffic norms came from behind and hit the hind side of Honda Activa, due to

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which, the claimant fell down and sustained injuries. Considering the rival submission made on this aspect, the appellant - Corporation had examined RW1, who is the driver of BMTC and it is his evidence that he has driven the bus carefully and cautiously and has not caused the accident, whereas, the claimant himself while riding the Honda Activa had touched the right side body of the bus and fell down by dashing to the right median divider and sustained injuries. On the other hand, the claimant have produced the documents such as FIR, Compliant, spot sketch etc. As per Ex.P2 - Complaint, which is given by injured himself, who is the claimant herein alleging the fact that the driver of the bus drove the bus in a rash and negligent manner in order to over take the Honda Activa scooter, in that process, the right side of the bus touched the left side of the scooter, due to which, the accident has caused. Considering the documents produced along with Spot Sketch - Ex.P3, the Honda Activa Scooter was going from west to east. The bus was also coming from the same direction, there is a median divider on the road, which is a

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starting point of the divider, the place of the accident was shown thereby, it means the scooter was on its correct side just nearby the divider of the road. The width of the road from median to north side is 30 feet. The place of the accident shown is 3 feet from the divider. Therefore, there is still place as shown in the spot sketch for the bus. When the rider of the Honda Activa was proceeding from the right end corner of the road near median, the bus being a bigger vehicle, should have left some distance while proceeding near to the road divider. Therefore, there was sufficient place for the bus and that the driver of the BMTC should have taken care and caution when the rider of the motor cycle is proceeding towards its right side.

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When the submission of the learned counsel for respondent - corporation is to be considered, the scooter had hit the right side body of the bus from left side of the scooter, then the claimant had fallen down and except for the reason that the scooter was ahead of the bus and still there was 27 feet space for the bus to go further to

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overtake the scooter, it is not the case that the scooter has over taken the bus. But the bus driver was in the process of over taking the scooter had touched the left side of the scooter and due to which the claimant had lost balance while riding the scooter and had fallen down and sustained injuries. Therefore, in this regard, the entire scenario of the accident is visualized, it is found that the driver of the bus is found to be rash and negligent.

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But naturally, the bus being a heavy vehicle do not get any damage as it is found by the RTO authorities, the bus had not got damaged. That does not mean that the driver of the bus was riding safely. On the other hand, the Honda Activa Scooter was damaged as it was hit from back. Therefore, the bus driver had dashed the left side of the scooter hind, then the scooter hit to the median divider. Therefore, after perusing the complaint and spot sketch, it is proved that bus driver was rash and negligent. The RW1 in the course of cross-examination made by the claimant in Ex.P3 - Spot Sketch it was shown that the driver of the

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BMTC bus was in the process of over taking the scooter from the left side of the scooter and hence, the accident was caused and for this question and suggestion, RW1 stated that the spot sketch is not correct. It is the driver of the bus denying the spot sketch because it is attributed negligence on the part of the driver of the bus. However, upon the investigation, the charge sheet is filed against the driver of the bus and the RW1 admitted in the crossexamination that the charge sheet was filed against him. Therefore, all these documentary evidences corroborates with the evidence of PW1 but whereas RW1 does not have any corroboration from any evidence. Therefore, the evidence of the claimant has more weight compared to RW1 - Bus driver. Therefore, after considering the case and its preponderance probability, the driver of the bus is found to be rash and negligent but not the claimant. Therefore, the Tribunal is correct in holding that the accident was occurred due to rash and negligent driving of the bus driver. I do not find any wrong on part of the Tribunal in holding rash and negligence entirely on the driver of the bus.

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QUANTUM OF COMPENSATION :

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In respect of quantum is concerned, the learned counsel for Corporation contended that the over all compensation awarded by the Tribunal is on the higher side. Hence, he sought for allowing the appeal.

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On the other hand, learned counsel for the claimant submitted that quantum of compensation awarded under each of the head is on the lower side. Therefore, claimant is entitled for enhancement of compensation and prays for enhancement of compensation by allowing the appeal filed by the claimant and by dismissing the appeal filed by Corporation.

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In the present case, Ex.P7 - Wound Certificate, Exs.P8 to P10 - Discharge summary, Ex. P24 - nine lab reports and Ex.P25 - 1 X-ray report with x-ray film perused. It all proved the fact that the claimant had sustained the following injuries:-

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a. Degloving injury to right leg with dislocation.

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b. Fracture medial malleolus right ankle joint.

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c. Fracture of 4th and 5th M.T. Calceanaum.

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According to the above medical evidence and also evidence of the doctor - PW3, the injuries are grievous in nature. The Tribunal has awarded a sum of Rs.60,000/towards the head 'Pain and suffering'. But the claimant had suffered four fractured injuries along with injury to right leg with dislocation. Therefore, the compensation awarded under the head 'Pain and suffering' is on the lower side. Accordingly, a sum of Rs.80,000/- is awarded under the head for 'Injuries, pain and sufferings'.

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The Tribunal has awarded a compensation of Rs.4,86,074/towards the head 'Medical expenses'. Learned counsel for the claimant submits that the claimant had admittedly spent a sum of Rs.6,08,237/- and has produced medical bills, hospital charges receipt etc. But without assigning any reason has reduced the quantum of medical expenses and awarded a sum of Rs.4,86,074/-. Hence, prays for enhancement of the amount towards medical expenses. Upon considering the observations made

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by the Tribunal regarding the medical expenses, the Tribunal had not assigned proper reason in reducing the amount of compensation other than the X-ray bills. The Tribunal had observed that some of ambulance charges are included under the medical bills. Therefore, same is deducted under the medical bills and said to be considered under the head transportation, conveyance, nourishment, food and attending charges. Further, the Tribunal mentioned some bill numbers which are entered double times. But the Tribunal had not stated anything as what was the total amount claimed by the claimant as per the medical bills produced. But straight away reduced the quantum of compensation under this head. Therefore, submission of the Tribunal is not correct. Further, the Tribunal observed that the bill Nos.78 and 88 are the receipts for the payment of Rs.800/- and Rs.750/- towards consultation, dressing and pharmacy consumables claimed in the bill at bill Nos.68 and 91. Therefore, the aforementioned amounts are not to be considered due to double entry. But the Tribunal has not stated under which

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bill double entries are made and also the Tribunal has not observed anything regarding the advance amount is paid whether this advance amount is to be deducted or not there is no observation at all. Therefore, this Court has requested the learned counsel appearing for both the parties to ascertain once again the medical bills and receipts produced and both have stated that the Tribunal committed an error in awarding lesser amount of compensation under the medical expenses and hospital charges in comparison with medical bills and receipts produced. It is true that some of the ambulance bills were awarded under the medical expenses and hospital charges. Therefore, deduction made is correct. But regarding ambulance charges a sum of Rs.8050/- which ought to be deducted but is to be included under the head of conveyance charges. Therefore, if another sum of Rs.50,000/- is awarded in addition to what has been awarded by the Tribunal towards medical expenses, that would be appropriate. This Court once again perused the medical bills and considered that the Tribunal has not calculated the medical bills properly and has

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excessively deducted which is not correct. Therefore, total compensation of Rs.5,36,074/- is awarded towards medical expenses and hospital charges, upon perusal of documents adduced for medical bills and hospital charges.

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The Tribunal has awarded a compensation of Rs.15,600/- towards Conveyance, nourishment, Food and attendant charges which is on the lesser side. The Tribunal has stated that the ambulance bills which was included in medical bills has to be excluded and same ought to have included in Conveyance, nourishment, Food and attendant charges but did not do so. Therefore, the claimant is entitled for enhancement of compensation. Further, the claimant was hospitalized on three occasions totally for 13 days and further he has taken regular follow up treatment and some amount has been spent towards ambulance charges. Accordingly, a compensation of Rs.30,000/- is awarded towards Conveyance, Nourishment, Food and attendant charges. The compensation awarded under the head of future medical expenses, a sum of Rs.25,000/- is

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correct, which need not be interfered with. The claimant was aged 59 years and has suffered four fractures and injuries as stated above. Therefore, the claimant is finding difficulty in walking especially over uneven surface, climbing stairs, inability to squat and sit crossed legged, throbbing pain while walking and accordingly granted compensation of Rs.50,000/- towards loss of amenities.

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It is stated that the claimant was looking after his son's cloth showroom, who is the proprietor of M/s. Attire Men's and Ladies wear, Basaveshwaranagar, Bengaluru and was earning Rs.30,000/- per month. Learned counsel for the Corporation submitted that avocation of the claimant is not definitely proved as there are different versions regarding avocation. Therefore, the income as declared in the Income Tax Returns has to be

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taken but not the income as stated by the claimant. Learned counsel for the claimant submitted that in the complaint the claimant has stated that he was working as a Business Development Manager at Windows Retails in

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Bengaluru and in the claim petition, he has stated that he was looking after his son's cloth showroom. Therefore, submitted that his profession is not definitely proved. Therefore, the notional income has to be taken towards his income. At the same time, the claimant has produced three years Income tax returns for the assessment years of 201314, 14-15, 15-16. The Tribunal has taken yearly income of the claimant as Rs.2,98,000/-, by considering the income tax for the assessment year 2015-16 as per Ex.P18. It is true that the income found from the income tax returns filed by the claimant for the assessment year 2013-14 as Rs.1,74,552/- The gross total income is assessed as Rs.2,10,000/- for the assessment year 2014-15. The gross total income is shown as Rs.2,98,000/- for the year 201516. Ex.P19 is the Form No.16, which is not produced along with income tax returns for the assessment year 2016-17. But the gross income was mentioned as Rs.3,60,000/-. Therefore, when the claimant is compelled to produce previous year's income and income tax returns form, the same can be taken for consideration for assessing the

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income of the claimant. Learned counsel for corporation requests to take the average of three years as income of the claimant. But at the same time, upon considering these three years income Tax returns, there is increase of income in case of the claimant. Therefore, the income shown for the assessment year 2015-16 is to be taken for consideration because in a business always there will be variation in the income and it is not stagnated and also not always reduction of income. Therefore considering the year of accident, which occurred on 11.04.2016, the income declared for the year 2015-16 has to be safely considered and accordingly Ex.P18 - income tax returns for the assessment year 2015-16 declaring the income as Rs.2,98,000/-, is accordingly taken.

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Though the claimant has sustained 50%

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disability to the right lower limb and 25% to the whole body, Doctor has assessed 17% disability to the whole body. The Tribunal has taken 17% of functional disability which is 1/3rd of the physical disability of the right lower

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limb. I do not find any reason in disbelieving percentage of functional disability by deducting 1/3rd on the particular right lower limb. Therefore, the Tribunal is correct in holding 17% towards the functional disability considering the nature of injuries sustained and avocation of the claimant. The claimant is stated to be aged 59 years, accordingly the multiplier will be 9 and the same is applied correctly by the Tribunal. Hence, the compensation amount awarded under the head of loss of future earning capacity due to disability is found to be correct.

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The Tribunal has awarded a sum of

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Rs.1,24,165/- towards loss of income during laid up period.

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The Tribunal has considered his income notionally at Rs.24,833/- per month and a period of five months as laid down period. Given the nature of injuries suffered, the laid up period considered by the Tribunal is correct and needs no interference.

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compensation as stated below:

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Sl.No.	Particulars	Amt in Rs.
1.	Pain and sufferings	80,000
2.	Loss of earnings during laid down period (5 months)	1,24,165
3.	Medical expenses	5,36,074
4.	Loss of future earnings	4,55,934
5.	Conveyance, nourishment, food and attending charges	30,000
6.	Future medical expenses	25,000
7.	Loss of amenities	50,000
	Total	13,01,173

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The Tribunal has awarded compensation of Rs.11,66,773/-, but the appellant/claimant is entitled to total compensation of Rs.13,01,173/- . Hence, the appellant is entitled to enhanced compensation of Rs.1,34,400/- (Rs.12,51,507- Rs.11,66,773). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.1,34,400/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, I pass the following:

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ORDER

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i. The appeal filed by the corporation is dismissed and appeal filed by the claimant is allowed in part.

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ii. The impugned judgment and award dated 31.03.2017 in MVC.No.2764/2016 passed by the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, is modified to the extent that the appellant/claimant is entitled to enhanced compensation of Rs.1,34,400/- along with the rate of interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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Draw award accordingly.

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No order as to costs.

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Sd/- JUDGE

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Kapil Batra v. the Managing Director

Case brief

What is this about?

What did the court decide?

Kapil Batra v. the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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