Partly allowed

The Managing Director v. Sri Vinay S P

Karnataka HC9 Jun 2022MFA/6747/2018

Case brief

AI extract

What is this about?

This judgment dismisses appeals by both the Transport Corporation and the injured claimant. The court modified the Tribunal's award, enhancing the total compensation based on a higher notional income and future prospects, while slightly reducing items for pain, amenities, and future medical expenses.

What did the court decide?

Total compensation enhanced to Rs.35,79,046/-. Corporation directed to deposit amount with 6% interest within six weeks.

The Managing Director Vs Sri Vinay S P — 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 9^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.6747 OF 2018 (MV) C/W MFA No.8389 OF 2018 (MV)

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IN MFA NO.6747/2018:

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BETWEEN:

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The Managing Director, Bangalore Metropolitan Transport Corporation, Double Road, K.H.Road, Shanthinagar, Bangalore – 560 027. … Appellant

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(By Sri.D.Vijaykumar., Advocate) AND:

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Sri.Vinay.S.P., S/o Puttalingaiah, Aged about 19 years, R/at Seebanahalli, Malur Hobli, Channapatna Taluk, Ramanagaram District. ... Respondent

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(By Sri.Gopala Krishna.N, Advocate)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 07.06.2018 passed

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in MVC No.2/2017 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagara, awarding compensation of Rs.23,88,926/- with interest @ 6% p.a. from the date of petition till the date of deposit.

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IN MFA NO.8389/2018:

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BETWEEN:

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Sri.Vinay.S.P., S/o Puttalingaiah, Aged about 19 years, R/at Seebanahalli, Malur Hobli, Channapatna Taluk, Ramanagaram District. … Appellant

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(By Sri.Gopala Krishna.N, Advocate) AND:

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The Managing Director, Bangalore Metropolitan Transport Corporation, K.H.Road, Bangalore – 560 027. ... Respondent

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(By Sri.D.Vijaykumar., Advocate)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 07.06.2018 passed in MVC No.2/2017 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagar District, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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These appeals, coming on for Hearing, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.6747/2018 is filed by the Bangalore Metropolitan Transport Corporation (for short, ‘the Corporation’) whereas MFA No.8389/2018 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 07.06.2018 passed by the MACT, Channapattana in MVC No.2/2017. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeal briefly stated are that on 29.10.2016 at about 6.00 p.m. the claimant was proceeding as a pillion rider in the Honda Activa bearing registration No.KA-51/EN5210 on Uttarahalli main road from Channasandra to

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Kengeri. At that time, a BMTC bus bearing registration No.KA-01/FA-199 being driven by its driver at a high

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speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, 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 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in

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the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the rider of the Honda Activa vehicle. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for

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dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Raju K.P. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P16. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of

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the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal

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further held that the claimant is entitled to a compensation of Rs.23,88,926/- along with interest at the rate of 6% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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The learned counsel for the Corporation has raised the following contentions:

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Firstly, the accident has occurred due to rash and negligent riding of the rider of the scooter. The rider of the scooter tried to overtake the bus and lost control over the vehicle and hit the right side of the bus and fell down. The claimant who is the pillion rider has suffered injuries. The Tribunal has erred in holding that the driver of the bus alone is negligent in causing the accident.

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Secondly, rider of the scooter has not been made as a party and they have not examined the rider of the scooter who is the complainant in the

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case. Therefore, the finding given by the Tribunal that the driver of the bus alone is negligent in causing the accident is unsustainable.

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Thirdly, at the time of the accident claimant was a student and he was a non-earning member of the family. The Tribunal while assessing the income has considered Rs.6,000/- per month which is on the higher side.

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Fourthly, even though the doctor has assessed the whole body disability at 90%, considering the age and avocation and injuries suffered by the claimant 90% whole body disability assessed by the Tribunal is on the higher side.

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Fifthly, 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 the higher side.

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Sixthly, the doctor has deposed that the claimant requires Rs.1,50,000/- for 'future medical expenses', but the Tribunal has awarded Rs.2,50,000/-, which is on the higher side. Hence, he sought for allowing the appeal filed by the Corporation.

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On the other hand, the learned counsel appearing for the claimant has raised the following contentions:

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Firstly, the claimant is a pillion rider, there is no negligence on the part of the claimant.

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Secondly, the accident has occurred due to the negligence of the driver of the bus. Immediately after the accident the rider of the scooter has given a complaint against the driver of the bus. The police after thorough investigation have filed charge sheet. The driver of the bus has not lodged any complaint against the rider of the scooter. It is very clear from

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the documents produced by the parties that the driver of the bus alone is negligent in causing the accident.

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Thirdly, at the time of the accident, the claimant

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was aged about 18 years and he was doing agriculture and was earning Rs.20,000/- per month, but the Tribunal has taken the notional income as only Rs.6,000/- per month.

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Fourthly, even in case of a minor who is a student, the Hon’ble Apex Court has held that notional income has to be considered. In support of his contention, he relied upon the decision in the case of KAJAL vs. JAGDISH CHAND AND OTHERS reported in AIR 2020 SC 776 wherein it is held that even in respect of students who are non-earning members, who have a very good future, atleast minimum wages payable to the skilled workman has to be considered.

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Fifthly, since left leg has been amputated at hip level and the doctor has deposed that there is 90%

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whole body disability, due to the disability he is unable to do his day today work, therefore, he is entitled for addition of future prospects. In support of his contention, he has relied upon the judgment of the Hon’ble Apex Court in the cases of PAPPU DEO

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YADAV vs. NARESH KUMAR AND OTHERS’ 2020

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SCC Online SC 752 and ‘ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION

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LTD. 2020’ SCC Online SC 601.

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Lastly, due to the accident the claimant has suffered grievous injuries. At the time of the accident he was aged about 18 years. The Tribunal has failed to grant any compensation for ‘loss of marriage prospects’. Hence, he sought for enhancement of compensation.

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

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The case of the claimant is that on

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29.10.2016 at about 6.00 p.m. the claimant was proceeding as a pillion rider in the Honda Activa bearing registration No.KA-51/EN-5210 on Uttarahalli main road from Channasandra to Kengeri. At that time, a BMTC bus bearing registration No.KA-01/FA199 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. After recovering from the injury he filed the claim petition. To prove his case he has examined himself as PW1 and produced 16 documents. He has reiterated the averments made in the claim petition. In his cross-examination nothing has been elicited to disbelieve the version in the chief-examination. To disprove the case of the claimant the Corporation has examined the driver of the offending vehicle who

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deposed that as on the date of the accident he was driving the bus carefully and cautiously by observing the traffic rules and the rider of the scooter tried to overtake the bus and dashed to the right side of the bus and fell down and there is no negligence on the part of the driver of the bus.

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I have perused the evidence of the parties

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and the sketch produced as Ex.R2 and the mahazar as Ex.R1. It is very clear from the mahazar that both the vehicles are proceeding in the same direction from Channasandra towards Kengeri. The driver of the bus

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tried to take right side, at that time the right part of the bus touched the scooter, he fell down and sustained injuries. Immediately after the accident the rider of the scooter has lodged a complaint against the driver of the bus. The police, after thorough investigation have filed charge sheet against the driver of the bus. The driver of the bus has not made

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any efforts to lodge a complaint against the rider of the scooter. Considering the evidence of the parties and considering the FIR, chare sheet, mahazar, sketch, IMV report, the Tribunal is justified in holding that the driver of the bus alone is negligent in causing the accident and answering issue No.1 in the affirmative.

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Re.quantum:

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The claimant claims that he was earning

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Rs.20,000/- per month. He has not produced any documents to prove his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m. The Tribunal after considering the evidence of the doctor and considering

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the injuries suffered by the claimant has rightly assessed the whole body disability as 90%.

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In view of the judgment of the Hon’ble Apex Court in the case of PAPU DEO YADAV (supra) and ERUDAYA PRIYA (supra) the claimant is entitled for addition of future prospects.

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The notional income has been fixed at Rs.9,500/- per month. Since the claimant was aged about 18 years 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs.13,300/-. Considering the age of the claimant multiplier applicable to the age group is ‘18’. Thus the claimant is entitled to compensation of

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Rs.25,85,520/- (Rs.13,3001218*90%) on account

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of ‘loss of future income due to disability’.

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As per wound certificate, the claimant has

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sustained the following injuries:

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(1) Crush injury of left thigh, hemipelvis and lower abdomen with left external ilial artery rupture with crush syndrome.

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(2) Mangled extremity severity score – 8 (high energy injury, persistent hypotension, pulseless and cold limb).

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(3) Open bilateral pelvic fracture with morale – lavalle lesion left thigh and left lower abdomen.

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(4) Hypovolemic shock.

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(5) Rhabdomylysis.

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(6) Open fracture dislocation of 3^rd , 4^th and 5^th carpometacarpal joints left hand with degloving wound.

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(7) Urethral rupture

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(8) Deep abrasion left forearm.

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He was treated as inpatient for more than 3 months in the hospital and thereafter, has received further treatment. He has suffered lot of pain during treatment and he has to suffer with the disability and unhappiness throughout his life. Considering the evidence of the doctor and the injuries suffered by the claimant, the compensation awarded for 'pain and sufferings' has to be reduced from Rs.1,50,000/- to Rs.50,000/-, 'loss of amenities' from Rs.1,00,000/- to Rs.50,000/-.

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Since the income of the claimant has been enhanced from Rs.6,000/- to Rs.9,500/-, the claimant he is entitled for 'loss of income during laid-up period' at Rs.57,000/- (Rs.9,500*6).

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In respect of 'future medical expenses' is concerned, even though the doctor has deposed that it requires Rs.6.00 lakhs for disarticulation prosthesis and Rs.1,50,000/- for surgery, even today the

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claimant has not produced any document to show that he has undergone any surgery. Under these circumstances the compensation awarded by the Tribunal for 'future medical expenses' is reduced from Rs.2,50,000/- to Rs.1,50,000/-.

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Since the claimant was aged about 18 years, compensation towards ‘loss of marriage prospects’ has to be awarded at Rs.50,000/-.

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Considering the nature of injuries, the 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	1,50,000	50,000
Medical & incidental	6,86,526	6,86,526
expenses
Loss of income during	36,000	57,000
laid up period
Loss of amenities	1,00,000	50,000

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Loss of future income	11,66,400	25,85,520
Future medical expenses	2,50,000	1,50,000
Total	23,88,926	35,79,046

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In the result, the appeals are disposed of. The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.35,79,046/- as against Rs.23,88,926/- awarded by the Tribunal.

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The Corporation is directed to deposit the compensation amount along with interest @ 6% p.a. 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 is ordered to be transferred to the Tribunal forthwith.

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Sd/JUDGE

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Cm/-

The Managing Director v. Sri Vinay S P

Case brief

What is this about?

What did the court decide?

The Managing Director v. Sri Vinay S P

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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