Partly allowed

Raghugowda v. Vs the Managing Director

Karnataka HC29 Mar 2022MFA/9065/2019

Case brief

AI extract

What is this about?

This judgment dismisses the appellant's appeal for compensation enhancement while partly allowing the respondent BMTC's appeal. The court reduced the compensation from Rs.13.74 lakhs to Rs.4.635 lakhs, finding the original disability certificate false and the claimed income unproven.

What did the court decide?

Compensation reduced from Rs.13,74,000 to Rs.4,63,500 with interest at 6% p.a. Balance refund ordered if material exists.

Raghugowda v Vs the Managing Director — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.9065/2019 (MV) C/W

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M.F.A.NO.3748/2019 (MV)

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IN MFA.NO.9065/2019

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BETWEEN:

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RAGHUGOWDA V S/O M. VENKATESH AGED ABOUT 20 YEARS R/O CHANGAVARA AT POST SIRA TALUK-572137 TUMAKURU DISTRICT

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… APPELLANT

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR B.M.T.C., K.H.ROAD BENGALURU-572 127

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...RESPONDENT

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(BY SRI.D.VIJAYAKUMAR, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO CALL FOR THE RECORDS IN MVC.NO.622/2017, ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, AT SIRA AND BE PLEASED TO MODFY THE JUDGMENT AND AWARD DATED 29.12.2018 BY ALLOWING THE

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CLAIM PETITION, AS CLAIMED IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.3748/2019

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BETWEEN:

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THE MANAGING DIRECTOR, BANGALORE METROPOLITAN TRANSPORT CORPORATION CENTRAL OFFICES, K.H.ROAD SHANTHINAGAR, BANGALORE - 572 127

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… APPELLANT

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(BY SRI.D.VIJAYAKUMAR, ADVOCATE)

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AND:

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SRI RAGHUGOWDA V S/O VENKATESH.M AGED ABOUT 20 YEARS R/O CHANGAVARA AT POST SIRA TALUK, TUMKURU DISTRICT

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… RESPONDENT

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 29.12.2018 PASSED IN MVC NO.622/2017 ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC, SIRA.

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THESE MFAs HAVING BEEN HEARD AND RESERVED ON 24.02.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA.No.9065/2019 is filed by the petitioner seeking enhancement of the compensation granted by the Tribunal.

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On the other hand, MFA.No.3748/2019 is filed by the respondent-BMTC with a prayer to set aside the impugned judgment and award and dismiss the claim petition.

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Since these two appeals are arising out of the common judgment and award, they are connected together and disposed of by common judgment.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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Petitioner filed claim petition under Section 166 of the MV Act seeking compensation in a sum of Rs.20,00,000/with interest at 12% p.a. for the injury sustained by him in a road traffic accident dated 31.08.2016.

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It is the case of the petitioner that on 31.08.2016 at about 7.45 p.m, after having meals in the house of their friend, petitioner along with Goutham was proceeding on Honda Activa

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scooter bearing registration No.KA 02/HG 1224 from Tavarekere to Bengaluru. He was riding the two wheeler in question. When they reached Shigehalli gate, Dasanapura Hobli, Bengaluru North Taluk, a BMTC bus bearing registration No.KA 01/F 3476 (hereinafter referred to as offending vehicle), driven by its driver in a rash or negligent manner came from the opposite direction and by overtaking a car, it came on the wrong side and dashed against the scooter.

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As a result of the accident, petitioner sustained injuries. Immediately, he was shifted to Shri.Lakshmi Multi Speciality Hospital, Sunkadakatte. He took treatment as inpatient from 31.08.2016 to 08.09.2016. Due to the accidental injuries, he has suffered permanent partial disability.

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At the time of accident, petitioner was studying in 5^th semester i.e., Diploma in Civil Engineering at East-West College, Bengaluru. He was also working part time under a Class-I contractor and earning Rs.20,000/-p.m. The injuries sustained by him has resulted in 100% functional disability. He is having difficulty in sleeping, suffer from giddiness, headache, walking, thinking, reading, writing, viewing and facing difficulty in day to

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day work. He is dependent on others. Due to the injuries, he has become crippled. Due to the accidental injuries, he lost his valuable 5^th semester in Diploma.

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Respondent is the owner of the offending vehicle and it is having internal insurance adjustment and as such liable to pay the compensation. Hence the petition.

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In the written statement, respondent has denied that accident occurred due to the rash or negligent driving by the driver of the offending vehicle. On the other hand it was the petitioner who was rash or negligent and dashed his two wheeler against the offending vehicle which was parked in the bus stop from its hind side. As an after thought, a complaint came to be filed after four days and in collusion with the police, petitioner has managed to get the charge sheet filed against the driver of the offending vehicle and as such the petition is liable to be dismissed.

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The respondent has disputed the age, occupation, employment, monthly income of the petitioner, nature of injury sustained and that it has resulted in permanent partial disability

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and 100% functional disability. The petitioner shall be directed to produce the PAN number, Aadhar card/Voter card/Ration card to identify the petitioner and also his bank account with NEFT/RTGS details and sought for dismissal of the petition.

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Based on the pleadings, the Tribunal has framed issues.

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In support of his claim petition, petitioner has examined himself as PW-1, the Doctor who has issued the disability certificate as PW-2 and another witness as PW-3. He has relied upon Ex.P1 to 17.

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On the other hand, the driver of the offending vehicle is examined as RW-1. No documents are marked on behalf of the respondent.

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Vide the impugned judgment and award, the Tribunal has granted compensation in a sum of Rs.13,74,000/with interest at 6% p.a as detailed below:

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Heads	Amount in Rs.
Loss of future income	9,72,000
Pain and sufferings	50,000
Loss of income during treatment	27,000
Medical conveyance, Nutrition and Attendant charges	3,05,000
Loss of future happiness and amenities	20,000
TOTAL	13,74,000

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Learned counsel for the petitioner argued that the Tribunal has committed error in taking the income of the petitioner as Rs.9,000/- instead of Rs.20,000/-, as the petitioner was working under Class-I contractor Thimmanna and also studying in the 5^th Semester Civil Diploma, when the accident took place.

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16.2 The compensation granted under various heads is on the lower side and no compensation is granted under the head future medical expenses.

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In support of the grounds urged, the petitioner has relied upon the following decisions:

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1) (2011) 4 SCC 693¹

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2) AIR 2019 SC 994² 3) MFA.No.102268/2019(MV)³ 4) MFA.No.103473/2017(MV)⁴ 5) (2018) 4 SCC 571⁵ 6) (2014) 14 SCC 396⁶

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7) AIR 2020 SC 4284⁷ 8) AIR 2021 SC 5382⁸ 9) (2011) 1 SCC 343⁹

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On the other hand learned counsel representing the respondent argued that as on the date of alleged accident, petitioner was a minor. As per the Aadhar card, he was born during the year 1999 and as such during the year 2016 he was below 18 years. Therefore, petition filed by the petitioner without the assistance of the natural guardian is not maintainable.

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18.1 Even though respondent has pleaded that no accident has taken place involving the offending vehicle in question, without appreciating this aspect the Tribunal has erroneously fixed the liability on the respondent, especially when

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1 Ravi Vs.. Badrinarayan & Ors

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2 Sunita & Ors. Vs.Rajasthan State Road Transport Corporation and Anr

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3 Chetana & Ors. Vs. Babuji M & Ors

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4 Basavaraj Vs. Umesh and Anr

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5 Jagdish Vs. Mohan and Ors

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6 Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd & Anr

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7 Erudhaya Priya Vs. state Express Transport Corporation Ltd

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8 Jithendran Vs. New India Assurance Co.Ltd & Anr

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9 Raj Kumar Vs. Ajay Kumar & Anr

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the petitioner has not examined any of the eyewitnesses to the alleged accident.

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18.2 Since the petitioner was 16 years of age when the alleged accident took place, he was not having a valid driving license and he was also not wearing helmet and therefore, he himself is negligent and responsible for the accident. Without appreciating this fact, the Tribunal has erroneously fixed the entire negligence on the driver of the offending vehicle.

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18.3 Learned counsel for the respondent further submitted that intentionally the petitioner has not produced the sketch and IMV report of the offending vehicle which would have thrown light as to how actually the accident has taken place. At least 50% of the negligence should have been saddled on the petitioner. The compensation granted is highly exorbitant.

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18.4 He would further submit that the nature of the injury sustained by the petitioner indicate that he has not at all suffered any disability let alone partial permanent disability or functional disability as contended by the petitioner. Examination of evidence of the petitioner itself goes to show that he is not

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having any mental disorder or disability and only to claim higher compensation, he has obtained a false disability certificate. Without appreciating this fact, the Tribunal has granted exorbitant compensation in a sum of Rs.9,72,000/- towards physical disability and loss of future income. It is highly excessive. PW-2 who has issued the disability certificate is not the treating Doctor. He has only made assessment of disability. He has given false evidence to the effect that the petitioner has sustained 48.6% cognitive deficits. He has not at all assessed the whole body disability.

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Heard arguments of both sides and perused the

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record.

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20. The points that arise for consideration are:

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(i) Whether the petitioner has made out any justifiable grounds to enhance the compensation.

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(ii) Whether respondent proves that the petitioner has not at all sustained any disability and as such the compensation granted is on the higher side and it requires re-consideration.

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(iii) What order?

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My findings to the above points are:

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Point No.(i): Negative Point No.(ii): Affirmative

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Point No.(iii): As per the final order for the following:

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REASONS

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Point Nos.(i) and (ii): Since these points involve

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common discussion, they are considered together.

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In the claim petition, petitioner has shown his age as 18 years. The respondent has disputed that as on the date of the accident, the petitioner was aged 18 years. On the other hand according to the respondent, petitioner was a minor and as such was not holding a valid driving license and therefore, he has also contributed towards the accident. Respondent has also contended that if as on the date of accident, petitioner was not a major, then compensation is to be calculated as per Mallikarjuna’s case referred supra and not as per Sarala Verma’s case.

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It is pertinent to note that in the written statement, the respondent has specifically requested the Court to direct the petitioner to produce Aadhar card/Voter’s ID/Ration card to identify the petitioner and also his bank account details. In fact a specific suggestion is made during the cross-examination of petitioner i.e., PW-1 that as on the date of accident, he was aged only 16 years. Inspite of the respondent taking a specific contention regarding the age of the petitioner, for reasons best known to him, he has not chosen to produce any document in proof of his age. He could have just produced the SSLC marks card or his driving license etc. In the absence of the same, an adverse inference is required to be drawn against the petitioner and that such evidence would be unfavourable to him.

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However, from the records, a photocopy of the Aadhar card of petitioner is available according to which, his year of birth is 1999. As per this document, as on the date of accident, the petitioner was aged 17 years. In the absence of any other material, having regard to the fact that this is summary proceedings, reliance could be placed on the said document. Therefore, based on the same, this Court comes to

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the conclusion that as on the date of accident, the petitioner was aged 17 years.

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When once the Court comes to the conclusion that as on the date of accident, petitioner was not a major and he was just 17 years old, the next question would be whether compensation is required be calculated in accordance with Mallikarjun’s case referred to supra or as per the normal procedure relying upon the Sarala Verma’s case. Mallikarjuna’s case referred to supra deals with compensation in case of accidents of child resulting in disability. With reference to different enactment, the age of the child is fixed differently. It is relevant to note that in Sarala Verma’s case, upto the age of 15 years no multiplier is specified. Only from the age of 15 years, the multiplier begins. Therefore, one can have a clue from this that till the person completes the age of 15 years, the provisions of Mallikarjun’s case referred to supra is applicable and in other cases, one has to follow the decision of the Sarala Verma’s case. Since from the Aadhar card of the petitioner, it is established that he was aged 17 years as on the date of

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accident, it could be safely held that Sarala Verma’s case is to be followed and not the Mallikarjun’s case.

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Even though the petitioner has claimed that as on the date of accident, he was 18 years old and was holding a driving license to drive the two wheeler, he has not produced the same. It appears since he was aged 17 years as on the date of accident, petitioner was not holding a driving license to drive the two wheeler and in order to avoid he being questioned about the driving license, he has not chosen to produce these documents and consciously he has withheld these documents.

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Keeping this fact in mind, it is to be examined whether the accident occurred due to the rash or negligent driving by the driver of offending vehicle or the accident occurred when petitioner himself drove the two wheeler in a rash or negligent manner and dashed against a stationery bus from its behind. It is pertinent to note that the petitioner has not produced the IMV report in respect of the offending vehicle. Only the IMV report in respect of two wheeler is produced which state that the two wheeler had sustained damages as detailed in the said report. According to the spot mahazar and also case of the

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petitioner after the accident, the offending vehicle did not stop and its driver drove it away. However, it was not difficult for the Investigating Officer to secure the offending vehicle and get it examined through the Inspector of Motor vehicle. For reasons best known to him, the Investigating Officer has also not chosen to do his job properly.

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In the charge sheet, he has stated that the offending vehicle is scrapped. Unfortunately, the learned counsel who was representing the respondent before the Tribunal has not crossexamined the petitioner properly with regard to these aspects. No suggestions are made to the petitioner that since the offending vehicle was not damaged on its front side or there was no damage on its back side, intentionally the Investigating Officer has not got it examined through the Motor Vehicles Inspector. On the other hand, throughout the cross-examination of PW-1, it is suggested that the offending vehicle is not at all involved in the said accident. In fact during the course of written statement also, a specific defence is taken by the respondent that the vehicle is not at all involved and only to claim compensation, the offending vehicle is being falsely implicated.

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Only during the course of evidence of RW-1 it is stated that the offending vehicle was stopped at the Seegehalli bus stop of BMTC and the petitioner while driving his two wheeler in a rash or negligent manner came and dashed against a stationery bus from its backside. In view of the contradictory stand taken by the respondent, no effective cross-examination of PW-1 has been done. When the petitioner is guilty of suppression of material facts and as respondent has not taken a specific defence and conducted the same in accordance with the said defence, the Court is not in a position to know the exact things which transpired at the spot. It is also not clear whether the offending vehicle was scrapped as shown in the charge sheet and no suggestions are made to PW-1 on this aspect. Consequently, I hold that respondent has failed to establish that on account of petitioner being 17 years of age at the time of accident and not holding driving license and it has contributed to the accident.

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Thus from the above discussion, I hold that in the absence of proper assistance from the respondent and on the available material on record, the Tribunal has come to a correct

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conclusion that accident occurred due to the rash or negligent driving by the driver of the offending vehicle.

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In the absence of petitioner establishing that he was aged 18 years as on the date of accident and on the basis of available material on record, it is established that he was aged 17 years, it cannot be accepted that petitioner in addition to being a student was also working part time and earning Rs.20,000/-. In fact even where the petitioner is held to be a major as on the date of accident, he has not produced any documents to show that he was working part time with any contractor and earning Rs.20,000/- p.m. A suggestion is made to PW-1 during his cross-examination that the person with whom he was allegedly working part time is his relative, which he has admitted. If at all the petitioner was working part time and also earning Rs.20,000/-p.m, there was no impediment for him to produce the evidence to that effect. He could have also examined the person with whom he was employed and who in turn would have produced documents to prove the said fact. In the absence of the same, compensation is required to be

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calculated on notional basis provided petitioner prove that he has sustained permanent partial disability.

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The petitioner has contended that on account of the accidental injuries, he has suffered permanent partial disability of 50% and though the disability is calculated at 50%, it has affected his functional disability to 100% and therefore, the compensation is required to be paid based on 100% disability. His grievance is that the Tribunal has taken his functional disability only at 50% and it should have been 100%. He has also contended that the Tribunal has not taken into consideration the future prospects while granting compensation and therefore, based on loss of future prospects, compensation is required to be enhanced.

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On the other hand, the learned counsel representing the respondent argued and submitted that in fact the petitioner has not at all sustained any disability and only for the purpose of claiming higher compensation, a false report has been obtained and PW-2 has also given false evidence. The learned counsel for respondent has drawn the attention of the Court to the evidence of PW-1 and the manner in which he has withstood the cross-

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examination and pointed out that the very examination of his evidence goes to show that he is a normal person and he has not suffered any disability let alone 50% or 100% functional disability as claimed by the petitioner.

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In order to examine whether the petitioner has suffered any disability and if so whether such disability has affected his functional ability to lead a normal life and earn, it is necessary to examine the case pleaded by him. It is pertinent to note that at the earliest available opportunity i.e., when the claim petition was filed, the petitioner has not pleaded that on account of the injuries sustained by him in the accident in question, he has suffered any disability let alone 100% functional disability. Even though at Column No.14 of the claim petition, petitioner has pleaded that on account of the injuries sustained by him, he has suffered total and permanent disability to the whole body, at column No.22, page-5 he has pleaded that due to the injuries sustained by him in the accident, he has lost his valuable 5^th Diploma year. It appears it should have been 5^th semester because Diploma consists of three years. Petitioner has not pleaded that on account of the injuries, he had to leave his

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studies in the middle and on account of permanent partial disability or 100% functional disability, he was not able to continue his studies.

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What he pleads is only that during that year he lost valuable 5^th semester. In fact as per Ex.P13, which is the Neuro behavioral and Cognitive Assessment report given by PW-2 Dr.Sridhar, he has given his occupation before road traffic accident as a student and he does not state that he was also employed and earning. He has also given his income before road traffic accident as nil, which goes to show that he has falsely pleaded of doing part time job and earning Rs.20,000/-. In Ex.P13, at page-133, petitioner has given his educational qualification as Diploma final year. Whether the petitioner has lost his valuable 5^th semester or he was not able to pursue his education on account of suffering any disability, the best evidence which he could have produced was the marks cards of the semesters in Diploma which he was pursuing. That could have been the best evidence to establish that he has suffered some disability.

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During the course of his evidence, PW-2 Dr.Sridhar has deposed that petitioner has sustained 50% disability. His report at Ex.P13, page-2 of 11 reads as follows:

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“Now patient has behavioral changes – irritable, emotional liability present. Forgetfulness – forgets names, conversations. Gets head ache and giddiness on and off. Feels tired all the time. Finds it difficult to understand conversations, needs repetition. Has blurring of vision and decreased eye sight in both the eyes. Needs help for some of the ADL (activities of daily living). Sleep is disturbed at night. Has decreased hearing and left ear has a sound constantly.”

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Perusal of this report indicate as though the petitioner is not at all a normal person after the accident and on account of he having suffered injury to his brain it has become almost impossible for him to lead a normal life. This evidence of PW-2 and his report at Ex.P13 are to be tested in the light of the cross-examination of PW-1. It is pertinent to note that petitioner has filed the petition on his own. Neither in his capacity as a minor nor having suffered any permanent partial disability or 100% functional disability on account of brain injury, petitioner has chosen to take the assistance of either his guardian or a

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next friend to prosecute the petition. As a normal person he has prosecuted the petition. In fact he has given his evidence on his own. His testimony more particularly his cross-examination makes it evident that he is a normal person with normal intellect.

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The examination of his evidence makes it evident

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that he has not at all suffered any disability and only with a view to get higher compensation, he has chosen to produce a false report and in fact PW-2 being a responsible Doctor has not only given a false report but also given evidence on oath based on such false report. If at all the petitioner was irritable, emotional liability was present, forgetfulness – he forgets names, conversation, he gets head ache and giddiness on and off, feels tired all the time, finds it difficult to understand conversations, needs repetition, has blurring of vision and decreased eye sight in both the eyes, needs help for some of the ADL (activities of daily living), sleep disturbance at night, has decreased hearing and left ear has a sound constantly, he would not have withstood the test of cross-examination. In fact there is no observation made by the Tribunal that he has any difficulty in facing the

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cross-examination. His answers given in the cross-examination makes it evident that he is 100% normal and only after completion of his evidence, the report of the Doctor has been obtained, that too of a Doctor who has not treated him and based on it the petitioner has claimed higher compensation.

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Even though as held by the Hon’ble Supreme Court in the case of Rajkumar’s case referred to supra, the disability certificate issued by certificating Doctor could be relied upon, having regard to the fact that the disability certificate at Ex.P13 is inconsistent with the material placed on record, especially the testimony of PW-1, I have no hesitation to hold that it is a false certificate issued by the Doctor at the instance of petitioner to enable him to get higher compensation. The Tribunal has failed to note this aspect and mechanically proceeded to accept the evidence of PW-1 and 2 and come to the conclusion that petitioner has suffered 50% disability and based on it granted the compensation.

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Thus, from the above discussion, I hold that petitioner has failed to prove that on account of accidental injuries suffered by him he has sustained any disability.

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Therefore, compensation is required to be calculated only on the basis of actual injury sustained by the petitioner and he is not entitled for any compensation on the ground of loss of earning capacity or loss of future prospects.

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Pain and suffering: The Tribunal has granted compensation in a sum of Rs.50,000/- under the head pain and suffering. As per Ex.P5 – Wound certificate the petitioner has suffered overline fracture of left Parieto Occipital EDH which is grevious in nature. He has also suffered two simple injuries viz., irregular muscle deep laceration over the right lumbar region and abrasion over the right hand measuring 3 x 2 cms. He has also undergone operation. Taking into consideration these aspects, I hold that grant of compensation in a sum of Rs.50,000/- under the head pain and suffering is on the lower side. Increasing the same by another Rs.30,000/- would meet the ends of justice. Accordingly, it is increased to Rs.80,000/-.

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Loss of income during treatment: The Tribunal has rightly taken the laid up period as three months and at the rate of Rs.9,000/- granted compensation in a sum of Rs.27,000/-. Since the accident is of the year 2016, the notional income is

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required to be taken at Rs.9,500/-. Therefore, petitioner is entitled for compensation in a sum of Rs.28,500/- as against Rs.27,000/- granted by the Tribunal.

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Medical conveyance, Nutrition and Attendant charges: Based on the medical bills and also the nature of injury, period of treatment, the Tribunal has rightly granted compensation in a sum of Rs.3,05,000/- and I find no reason to interfere with the same.

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Loss of amenities: The Tribunal has granted compensation in a sum of Rs.20,000/- under this head. Having regard to the nature of injury and period of treatment, I hold that it is on the lower side. Therefore, the same is increased to Rs.50,000/-.

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Thus in all petitioners are entitled for compensation in a sum of Rs.4,63,500/- with interest at 6%p.a., as against Rs.13,74,000/- granted by the Tribunal as detailed below:

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Heads	Amount granted by the Tribunal in Rs.	Amount granted by this Court in Rs.
Loss of future income	9,72,000	-
Pain and sufferings	50,000	80,000
Loss of income during treatment	27,000	28,500
Medical conveyance, Nutrition and Attendant charges	3,05,000	3,05,000
Loss of future	20,000	50,000
happiness and amenities
TOTAL	13,74,000	4,63,500

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In the result the appeal filed by the petitioner fails

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and the appeal filed by the respondent deserves to be allowed in part and accordingly, point No. (i) is answered in the Negative and point No.(ii) is answered in the Affirmative.

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Point No.(iii): In view of findings on point Nos. (i) and (ii), I proceed to pass the following:

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ORDER

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(i) MFA.No.9065/2019 filed by the petitioner is dismissed.

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(ii) MFA.No.3748/2019 filed by the respondent – BMTC is allowed in part.

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(iii) The impugned judgment and award is modified reducing the compensation granted by the Tribunal in a sum of Rs.13,74,000/- to Rs.4,63,500/-, with interest at 6% p.a. from the date of petition till realization.

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(iv) If the compensation deposited by the respondentBMTC is in excess of the entitlement of the petitioner, the balance is ordered to be refunded to it.

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(v) The registry is directed to transmit the trial Court record along with the copy of this order.

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Sd/JUDGE

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Raghugowda v. Vs the Managing Director

Case brief

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Raghugowda v. Vs the Managing Director

Case brief

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