Shri Yogesha K L @ Yogesh K L v. the Managing Director

Karnataka HC8 Aug 2022MFA.CROB/25/2018

Case brief

AI extract

What is this about?

The High Court modified the compensation award in a motor vehicle accident case. It dismissed the compensation for loss of income during the laid-up period as the claimant received full salary. It enhanced the loss of future earning capacity to Rs. 9.26 lakhs based on 20% disability and a multiplier of 17, and increased other heads. The appellant's appeal to reduce compensation was partly allowed.

What did the court decide?

Enhanced compensation of Rs. 2,38,426/- awarded along with interest at 6% per annum; interest rate reduced from 8% to 6%.

Shri Yogesha K L @ Yogesh K L Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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1 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^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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M.F.A.NO.5049/2017 C/W M.F.A.CROB.NO.25/2018 (MV-I)

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IN MFA NO.5049/2017

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BETWEEN:

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THE MANAGING DIRECTOR, B.M.T.C. SHANTHINAGAR, DOUBLE ROAD, BENGALURU-560027, REPRESENTED BY IT’S CHIEF LAW OFFICER

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… APPELLANT

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

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AND :

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SHRI. YOGESHA K.L. @ YOGESH K.L., SON OF LAKSHMI GOWDA, AGED ABOUT 27 YEARS, C/O SUBRAMANYA, 6^TH CROSS, THOTADAMANE, MTS LAYOUT, KENGERI UPANAGAR, BENGALURU-560060. PERMANENT ADDRESS, KASABA HOBLI, KUPPANAHALLI, ALUR, HASSAN-573217.

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... RESPONDENT

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(BY SRI. D.S.SRIDHAR, ADVOCATE)

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2 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.04.2017 PASSED IN MVC NO.2060/2015 ON THE FILE OF THE VII ADDITIONAL JUDGE, & XXXII ACMM, MACT, COURT OF SMALL CAUSES, BANGALORE, (SCCH-3), AWARDING COMPENSATION OF RS.9,30,988/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL RELIAZATION AND ETC.,

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M.F.A.CROB.NO.25/2018

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BETWEEN:

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YOGESHA K.L. @ YOGESH K.L., S/O LAKSHMI GOWDA, AGED 28 YEARS, C/W SUBRAMANYA, 6^TH CORSS, THOTADAMANE, MTS LAYOUT, KEGERI UPANAGARA, BENGALURU-560060. PERMANENT ADDRESS: KASABA HOBLI, KUPPANAHALLI, ALUR, HASSAN-573217.

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…CROSS-OBJECTOR

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(BY SRI.D.S.SRIDHAR, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR, BMTC, SHANTHINAGAR, DOUBLE ROAD, BANGALORE-27.

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..RESPONDENT

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

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3 MFA.NO.5049/2017 A/W

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THIS MFA CROB.25/2018 IN MFA.NO.5049/2017 IS FILED UNDER ORDER 41 RULE OF 22 THE CPC, AGAINST THE JUDGMENT AND AWARD DATED:11.04.2017 PASSED ON MVC NO.2060/2015 ON THE FILE OF THE 7^TH ADDITIONAL JUDGE, & XXXII ACMM,, COURT OF SMALL CAUSES, BENGALURU, (SCCH-3), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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MFA NO.5049/2017 AND MFA CROB.NO.25/2018 IN MFA.NO.5049/2017 COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA 5049/2017 is filed by the BMTC challenging the judgment and award dated 11.04.2017 passed in MVC.No.2060/2015 by VII Addl. Judge, MACT & XXXII ACMM, Court of Small Causes, Bangalore (SCCH-3) on the negligence aspect and also to reduce the quantum of compensation.

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MFA Crob.No.25/2018 is filed by the claimant for seeking enhancement of the compensation.

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4 MFA.NO.5049/2017 A/W

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2. Brief facts of the case are as under:

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On 31.1.2015 at about 6.15 p.m., the petitioner was riding Honda Activa bearing registration No.KA02-HT-1243 from Bone Mill to proceed towards Bagalagunte on Hesaraghatta main road, by observing all the traffic rules and regulations, when he reached near Aromatic Bengaluru Company, a BMTC bus bearing registration No.KA-57-F-830 driven by its driver came with high speed in a rash and negligent manner without observing the traffic rules and regulations dashed to the Activa from back side. Due to the impact he fell down and sustained grievous injuries and Honda Activa was also badly damaged. After the accident he was shifted to Sapthagiri Hospital, Bengaluru, wherein he took the first aid treatment and later on he was shifted to Bhagwan Mahaveer Jain Hospital, wherein he was admitted as inpatient from 1.2.2015 to 10.3.2015.

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5 MFA.NO.5049/2017 A/W

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Regarding Negligence:

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Learned counsel for the appellant-BMTC

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submitted that the accident was not occurred as stated by P.W.1 and as discussed by the Tribunal, but the claimant himself while riding his Honda Activa scooter by over taking the BMTC bus, had dashed to the right side body of the bus and fell on the road and sustained injuries, but not due to the driver of the BMTC bus. Therefore, submitted that the claimant himself is responsible for causing the accident. The learned counsel has relied on the evidence of R.W.1 who is the driver of the BMTC bus and also IMV report-Ex.P.6. It is further submitted that when it is the case of the claimant that the BMTC bus had hit the scooter from behind, then the bus ought to have got damage, but there is no such damage caused to the bus. Hence, it creates doubts in the manner of accident. Therefore, submitted that the accident was

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6 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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not occurred as stated in the complaint by the complainant.

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Further submitted that the Tribunal has

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awarded compensation of Rs.68,094/- under the head loss of income during laid up period, but as per Ex.36pay slips, the claimant was receiving salary continuously from February, 2015 without any break. Therefore, the claimant was receiving salary and there is no loss of income during laid up period. Therefore, compensation awarded by the Tribunal under this head is not correct. Further submitted that the Tribunal has held the percentage of disability at 15%, which has to be reduced. Therefore, prays for reduction of quantum of compensation.

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On the other hand, learned counsel for the cross- objector/claimant submitted that the accident was caused because of driver of the BMTC bus as he

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was driving the bus in a rash and negligent manner and hit the Honda Activa Scooter from behind and the claimant fell on the road and sustained injuries to the left hand and left leg and right rear wheel of the bus ran over his left hand and left leg, due to which, the claimant had sustained amputation of three fingers of left hand. Therefore, the driver of the BMTC bus was rash and negligent in driving the bus and caused the accident, which is rightly considered by the Tribunal. Further submitted that, even though, the BMTC had examined the driver of the BMTC bus as R.W.1, but he himself being a tort-feaser, quite naturally deposed that he was not rash and negligent, but the evidence of R.W.1 is not corroborated by any other evidence as the evidence of R.W.1 remains self-explanatory statement without any corroboration. Therefore, the evidence of R.W.1 is not believable, but the claimant had proved the rash and negligent aspect on the part of driver of the BMTC bus by producing the

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documentary evidence, in which the driver of the BMTC bus was charge sheeted for the offence committed. Therefore, the driver of the BMTC bus was rash and negligent in driving the bus and caused the accident. Therefore, submitted that there is no merit in the appeal filed by the BMTC and prays to dismiss the appeal.

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Further, learned counsel for the claimant submitted that the doctor who is examined as PW.3 had stated in the evidence that the claimant had totally suffered 28% of permanent disability towards the whole body, but the Tribunal has taken only 15% of disability, which is not correct. Therefore, prays for considering 28% of disability towards the whole body and grant compensation accordingly.

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Further submitted that the compensation

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awarded on other heads, which is under the head loss of amenities, conveyance, food and nourishment,

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attendant charges and disfiguration and marriage prospects are meager one. Therefore, prays for enhancement of compensation.

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Considering the evidences of P.W.1 -

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claimant, R.W.1 - driver of the BMTC bus and documentary evidence, it is the evidence of claimant that he was driving the Honda Activa scooter, but R.W.1 who was driving the BMTC bus had driven the bus in a rash and negligent manner with high speed and dashed the scooter from behind, due to which, the claimant fell on the ground and right rear wheel of the bus had passed on the left leg and left hand and sustained crush injury to the left hand and degloving injury (L) knee lateral aspect and other injuries all over the body. But on the other hand, it is the contention of the driver of the BMTC bus that the claimant had driven the Honda Activa scooter and by over taking the BMTC bus had dashed to the right side

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10 MFA.NO.5049/2017 A/W

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body of the bus and had fallen on the ground. Therefore, due to these circumstances, the accident was caused. It is submitted that R.W.1 was not negligent in driving the bus.

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Considering the evidence of PW.1 and R.W.1, which was given on oath against oath and perusing the documentary evidences i.e., Ex.P.1- FIR, Ex.P.2-complaint, Ex.P3-charge sheet, Ex.P.4- spot sketch and Ex.P.5- spot mahazar, in the complaint, it is alleged that the driver of the BMTC bus was rash and negligent in driving the bus and dashed the scooter from behind and caused the accident, due to which, the claimant had suffered injuries as above stated. The police after conducting investigation has filed the charge sheet against the driver of the BMTC bus, which corroborates with the evidence of P.W.1, but there is no corroboration with the evidence of R.W.1. Then the evidence of RW1 remains as selfexplanatory statement without having any

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11 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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corroboration. Considering the submission made by the learned counsel for the BMTC bus that the scooter had got damage to the left side, there could not have been the manner of accident and what is stated in the complaint by P.W.1. Upon considering the submission that when the accident has occurred, it cannot be possible to state as to in which exact manner only the accident has occurred. The accident is accident itself. The manner in which the vehicle fallen down and injuries sustained by falling on the ground cannot be stated to be exactly, but the fact remains that there is collusion between the Honda Activa scooter and BMTC bus, but the evidence of P.W.1 gets corroboration from the above stated documentary evidences, whereas the evidence of R.W.1 does not get any corroboration from any such evidence. Therefore, the evidence of P.W.1 carries more weightage because of documentary evidence which supports evidence of P.W.1, whereas the evidence of R.W.1 do not get any

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12 MFA.NO.5049/2017 A/W

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support. Therefore, the evidence of P.W.1 is found to be believable one.

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The learned counsel for the BMTC bus argued on Ex.P.8-discharge summary by stating that it is mentioned in the discharge summary regarding history, admitting the claimant to the hospital and it is mentioned that the scooter hit against the bus. Therefore, it is argued that the scooter had hit the bus, but considering this discharge summary the doctor who is an Orthopaedic Surgeon examined as P.W.3 in the discharge summary is not an eye witness at the particular point of time when the claimant was admitted to the hospital and naturally, the hospital authorities might have received the history in brief. Therefore, on that process, it was written, but that is not the exact proof proving the manner of accident. At that point of time, it was incumbent on the hospital authorities to treat the injured person rather than typing the exact history of accident. Therefore, under

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these circumstances, Ex.P.8-discharge summary does

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not help the appellant-BMTC bus.

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Therefore, upon considering the evidence on record i.e., P.W.1 -claimant and R.W.1 -driver of the bus, it is proved fact that the driver of the BMTC bus had driven the bus in a rash and negligent manner and dashed the Honda Activa scooter from behind and caused the accident. Therefore, in this regard, the Tribunal has correctly assessed and evaluated the evidence on record and finding of the Tribunal in this regard is proper, justified and correct. Hence, there is no need to make interference on the findings given by the Tribunal by holding that the accident was caused only because of rash and negligent driving of the BMTC bus.

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Regarding quantum of compensation:

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The Tribunal has awarded the

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compensation under various heads as under:

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14 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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1	Pain and suffering	Rs.	50,000-00
2	Loss of income during laid up period	Rs.	68,094-00
3	Medical bills	Rs.	68,336-00
4.	Loss of future earning	Rs.	6,94,558-00
5.	Loss of amenities, conveyance, food and nourishment , attendant charges etc.	Rs.	30,000-00
6.	Disfiguration and marriage prospects	Rs.	20,000-00
	Total	Rs.	9,30,988-00

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Ex.P.7 is the wound certificate, Ex.P.8 is

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the discharge summary, Ex.P.19 are the photographs, Ex.P.24 is x-ray films, which all prove the fact that the

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claimant had sustained the following injuries:

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1. Crush injury left hand

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1. Degloving injury left knee lateral aspect and other injuries all over the body.

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Therefore, as per the wound certificate and

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other documentary evidence as above stated, the injuries stated above are grievous in nature. It is also revealed that the claimant had suffered amputation of three fingers of left hand. Initially, the claimant has

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15 MFA.NO.5049/2017 A/W

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taken treatment in Sapthagiri Hospital, Bangalore, then shifted to Mahaveer Jain Hospital. The medical records discloses that the claimant has taken treatment initially for a period of 40 days. Therefore, considering the nature of injuries sustained, compensation of Rs.50,000/- awarded towards pain and sufferings is correct, which needs no modification.

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Further the Tribunal has awarded compensation of Rs.68,094/- under the head loss of income during laid up period. The learned counsel for the BMTC submitted that the claimant has not suffered any loss of income during laid up period as he was paid salary from February, 2015 onwards without any break-up of salary susbsequent to the accident and he places reliance on the documentary evidence i.e., Ex.P.36 - pay slips, which shows that the claimant was paid salary for successive 16 months from the month of February, 2015 to May, 2016. Therefore, he has not suffered any loss of income

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16 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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during laid up period. Hence, prays to set aside the compensation awarded under the said head.

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The documentary evidence i.e., Ex.P.36 - pay slips is perused, which are paid from the month of February, 2015 to May, 2016. There are 16 pay slips from the month of February, 2015 to May, 2016 without break-up of salaries. Therefore, even though, the claimant was taking treatment in the hospital after the accident, he has been paid full salary by the company. Therefore, Ex.P.36-pay slips prove the fact that the claimant was paid full salary including during laid up and treatment period in the hospital. Therefore, there is no loss of income during laid up period. Hence, the compensation awarded at Rs.68,094/- under the said head is liable to be set aside and accordingly, it is set aside.

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Further compensation of Rs.68,336/-

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awarded by the Tribunal under the head medical

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17 MFA.NO.5049/2017 A/W MFA.CROB.NO.25/2018

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expenses is as per the medical bills produced. Hence, there is no need for modification in this regard.

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The Tribunal has awarded compensation of Rs.6,94,558/- towards loss of future earning by considering the income of the claimant at Rs.22,698/per month and according to the age of the claimant as 25 years and 8 months, applied the multiplier "17" and by taking disability at 15% awarded compensation under this head.

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The claimant had suffered crush injury to the left hand and degloving injury to the left leg knee lateral aspect. Discharge summary-Ex.P.8, Ex.P.19photographs and Ex.P.24 -x-ray films prove the fact that the claimant suffered amputation of index finger, middle finger and ring finger. But there is no medical evidence to show that the claimant had suffered fracture to the left leg. Under these circumstances, P.W.3-doctor has assessed by examining the claimant

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18 MFA.NO.5049/2017 A/W

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that the claimant had suffered 60% of disability towards left upper limb which is 20% of whole body, 16% of left lower limb which is about 8% of whole body. Total 28% of whole body. Therefore, it is argued by the learned counsel for the claimant that there is 28% of permanent disability which has to be taken into consideration as functional disability, but the Tribunal has taken only 15% of disability and awarded lesser amount of compensation.

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The method of calculating the permanent physical disability towards the whole body as deposed by P.W.3-doctor is not correct. The assessment of disability to the whole body is to be assessed considering the total injuries sustained, then he has to say towards whole body. But P.W.3- doctor had bifurcated the disability towards left hand and left leg, which is not correct while considering the disability occurred to the whole body. Therefore, 28% of permanent physical disability cannot be taken into

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consideration. This Court had referred Schedule 1 of the Employee’s Compensation Act, in which, it is stated that for loss of three fingers the disability to be taken at 30%. It is in the context of claim petition filed under the provision of Employee’s Compensation Act . But the said percentage of disability stated in the Employee’s Compensation Act can be taken as guidelines value than prescribed under the Motor Vehicles Act. Further how to calculate the functional disability is clearly established and guidelines is issued by the Hon'ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.

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In the present case, the claimant was working as a team

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member in Productive Division at M/s Toyota Kirloskar Motor Private Limited and was earning salary of more than Rs.22,000/- per month. Therefore, considering the nature of injuries sustained, the claimant had

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20 MFA.NO.5049/2017 A/W

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suffered amputation of 3 fingers as above stated, but there is no fracture caused to the left leg, hence, considering the nature of injuries sustained as above discussed and also considering the evidence of P.W.3doctor and avocation of the claimant as stated above, it is just and proper to take 20% of functional disability affecting the earning capacity of the claimant. In this regard, taking 15% of disability by the Tribunal is not correct. As per Ex.P.11 - SSLC Marks card, the date of birth of the claimant is mentioned as 20.05.1989 and the accident occurred on 31.01.2015. Therefore, as on the date of the accident, the claimant was aged 25 years and 8 months. Hence, the claimant was 26 years old as age of 25 years and 8 months had completed. Therefore, the appropriate multiplier applicable is "17" considering the age in the range of 26 to 30 years. Ex.P.36 is the pay slips and P.W.4 is the employer of the claimant who had stated that the claimant was

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receiving salary of Rs.22,698/- which is proved as per the pay slips and evidence of the employer who is examined as P.W.4. Therefore, the monthly income of the claimant at Rs.22,698/- is considered. At this juncture, it is worthwhile to discuss regarding the submission made by learned counsel for the appellant that the claimant had taken the voluntary retirement by receiving amount of Rs.20 lakh. Therefore, submitted there is no compensation to be awarded under the head loss of earning capacity due to disability. But there is no evidence to prove that the claimant had taken voluntary retirement by receiving amount of Rs.20 lakh. Therefore, compensation under the head loss of earning capacity due to disability is to be awarded.

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The claimant, just because, had taken voluntary retirement and received Rs.20 lakh, it cannot be said that he has not suffered loss of earning capacity due to disability. The claimant might have

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received a sum of Rs.20 lakh towards voluntary retirement scheme, but it is the fact that due to injuries sustained, the claimant was constrained to leave the job. If the claimant had continued in the job, then he would have got increment and promotions apart from the salary in his service. Further more, the claimant was aged 26 years only at the time of the accident, therefore, his earning capacity would be more, if he would have continued his job in the company till the age of superannuation, but the claimant could not continue the job because of his amputation towards left hand. Hence, he was constrained to give up his job in the company. Therefore, under these circumstances, if the claimant,

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just because, had received Rs.20 lakh under the voluntary retirement scheme that cannot be made as a ground to deny compensation under the head loss of earning capacity due to disability. Therefore, under these circumstances, I cannot accept the submission

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made by the learned counsel for the BMTC bus by holding that the claimant is entitled to compensation under the head loss of earning capacity due to disability. Therefore, under the head loss of future earning capacity due to disability, compensation is calculated and quantified as follows:

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Rs.22,698/- x 20% x 17 x 12 = Rs.9,26,078/-

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Accordingly, Rs.9,26,078/- is awarded under

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the head loss of future earning capacity due to disability.

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Further the Tribunal has awarded compensation of Rs.30,000/- only towards loss of amenities, conveyance, food and nourishment, attendant charges etc., which is meager one. The claimant had suffered amputation of three fingers on left hand. Therefore, under the head loss of amenities, it is just and proper to award compensation of Rs.50,000/-. Accordingly, it is awarded under the said head.

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Further the claimant was admitted to the hospital for several times and undergone surgery as proved in the discharge summary and ought to have incurred expenses towards transportation, conveyance charges, food and nourishment attendant chares etc. Accordingly, compensation of Rs.25,000/- is awarded under the said head.

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Further the compensation of Rs.20,000/- is awarded by the Tribunal under the head disfiguration and marriage prospects, which is on the lesser side due to amputation of three fingers of left hand, which certainly affects his marriage prospects. Therefore, the same needs to be enhanced. Accordingly, Rs.50,000/- is awarded under the head disfiguration and marriage prospects.

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The appellant/claimant is entitled to the compensation as follows:

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1	Pain and suffering	Rs.	50,000-00	Kept in tact
2	Medical bills	Rs.	68,336-00	Kept in tact
3	Loss of future earning	Rs.	9,26,078-00
4	Loss of amenities,	Rs.	50,000-00
5	Conveyance, food and nourishment , attendant charges etc.	Rs.	25,000-00
6	Disfiguration and marriage prospects	Rs.	50,000-00
	Total	Rs.	11,69,414-00

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The Tribunal has awarded the compensation of Rs.9,30,988/-, but the

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appellant/claimant is entitled to total compensation of Rs.11,69,414/-. Hence, the appellant is entitled to enhanced compensation of Rs.2,38,426/- (Rs.11,69,414/- - Rs.9,30,988/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.2,38,426/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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The Tribunal has awarded interest at the

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rate of 8% per annum and the same is reduced to 6%

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per annum. Therefore, the claimant is entitled to interest on the total compensation including the amount awarded by the Tribunal with interest at the rate of 6% per annum. Therefore, insofar as rate of interest is concerned, the appeal filed by the BMTC is liable to be allowed-in-part. Hence, I proceed to pass the following

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ORDER

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MFA.No.5049/2017 filed by the BMTC is

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allowed-in-part .

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MFA.Crob.25/2018 filed by the claimant

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allowed-in-part .

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The impugned judgment and award dated 11.04.2017 passed in MVC.No.2060/2015 by VII Addl. Judge, MACT & XXXII ACMM, Court of Small Causes, Bangalore (SCCH-3), is modified to the extent that the appellant/claimant is entitled to enhanced

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compensation of Rs.2,38,426/- along with interest at 6% per annum in addition to what has been awarded by the Tribunal.

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The amount in deposit made by the BMTC shall be transmitted to the Tribunal along with TCR and a copy of this order forthwith.

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Draw award accordingly.

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No order as to costs.

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Shri Yogesha K L @ Yogesh K L v. the Managing Director

Case brief

What is this about?

What did the court decide?

Shri Yogesha K L @ Yogesh K L v. the Managing Director

Case brief

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What the court decided

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