Partly allowed

Sri Nouws Bage @ Nubach Bage v. the Managing Director

Karnataka HC2 Jun 2022MFA.CROB/97/2018

Case brief

AI extract

What is this about?

The High Court allowed two appeals and a cross-objection regarding a motor vehicle accident claim. The court affirmed the lower tribunal's finding of contributory negligence (20%) but modified the compensation amount by reassessing income and increasing loss of amenities, while also reducing the interest rate from 7.5% to 6% based on a prior Supreme Court observation.

What did the court decide?

The lower tribunal's judgment was modified; compensation enhanced to Rs. 5,57,564 with interest reduced to 6% per annum; Corporation directed to deposit amount within 6 weeks.

Sri Nouws Bage @ Nubach Bage Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND 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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M.F.A No.993 OF 2018(MV) C/W

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M.F.A. CROB. 97 OF 2018(MV)

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IN M.F.A No.993 OF 2018(MV)

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BETWEEN:

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THE MANAGING DIRECTOR BMTC, BANGALORE CENTRAL OFFICE K.H. ROAD SHANTHINAGAR BANGALORE – 560 027.

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NOW THROUGH CHIEF LAW OFFICER KSRTC, BANGALORE.

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…APPELLANT

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(BY SRI. NAGARAJA K., ADVOCATE)

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AND:

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SRI. NOUWS BAGE @ NABACH BAGE NOWES BEGGE @ NOWAS BAGE S/O. BUNIPHAS @ BUNIPHAS BAGE AGED ABOUT 36 YEARS R/AT. NO.5B-13(GF) ZEALOT INDUSTRIAL & LOGISTIC SERVICES NEAR BANKE BIHAN MANDIR NIT-5-FARIDABAD – 121 001 FARIDABAD, FARIDABAD NIT

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HARYANA- 121 001 ALSO AT SHAMUK JULI VILLAG BISWANATH CHARLI ASSAM TINISUTI POST PIN – 784 173 .

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… RESPONDENT (BY SRI. R.L. UDAYA KUMAR, ADVOCATE FOR R1)

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 27.10.2017, PASSED IN MVC NO.7019/2016 ON THE FILE OF THE 19^TH ADDITIONAL SMALL CAUSES JUDGE & MACT, BENGALURU, AWARDING COMPENSATION OF RS. 4,56,264/- WITH INTEREST AT 7.5% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN M.F.A. CROB NO.97 OF 2018(MV)

BETWEEN :

...CROSS OBJECTORS

(BY SRI. UDAYA KUMAR R.L., ADVOCATE FOR CROSS OBJECTOR)

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AND:

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THE MANAGING DIRECTOR BMTC, BANGALORE CENTRAL OFFICE K.H. ROAD SHANTHINAGAR BANGALORE – 560 027.

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….RESPONDENT

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(BY SRI. NAGARAJA K., ADVOCATE FOR RESPONDENT)

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MFA CROSS OBJECTION NO.97 OF 2018 IN MFA 993/2018 IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD DATED 27.10.2017, PASSED IN MVC NO.7019/2016 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE MACT, (SCCH-17), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFA AND MFA CROB CASES COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.993/2018 is filed by the Corporation praying to set aside the judgment and award dated 27.10.2017 passed by the MACT, Bangalore in MVC No.7019/2016, questioning the contributory negligence on the part of the claimant as well as the quantum of compensation.

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MFA Crob. No.97/2018 is filed by the appellant-claimant questioning the contributory

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negligence on the part of the appellant-claimant in causing the accident and praying to set aside the judgment and award dated 27.10.2017 passed by the MACT, Bangalore in MVC No.7019/2016.

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Brief facts of the case are that :on 26.09.2016 at about quarter past seven in the evening the appellant-claimant was walking on the road extreme left side of Dr. Mari Gowda Road, Wilson Garden, Bangalore, at that time, a BMTC bus bearing registration No.KA-57-F-1398 came from Dairy Circle towards Lalbag side, in a rash and negligent manner and dashed the claimant, due to which the claimant sustained injuries. Hence, the appellant-claimant has filed the claim petition claiming compensation of Rs.10,00,000/- with interest.

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The Tribunal after considering the oral and

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documentary evidence on record, has awarded a compensation of Rs.4,56,264/- under different heads, with interest at 7.5% per annum from the date of petition till the date of realization. The Tribunal has held that the claimant has contributed 10% of negligence towards occurrence of the accident and deducted the 10% of the awarded amount, and directed the corporation of deposit Rs.4,10,637/- with interest at 7.5% per annum, from the date of petition till the date of realization.

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Being aggrieved by the judgment and award passed by the Tribunal, the Corporation and the claimant have filed the present appeal as well as the MFA Crob. respectively.

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Sri. Nagaraja K., learned counsel appearing

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for the Corporation has contended that the accident is occurred due to the negligence of the claimant himself.

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He was crossing the busy road without following the traffic rules. There was no pedestrian crossing. Under that circumstance, the Tribunal is not justified in holding that the driver of the bus alone is negligent in causing the accident. He further contended that the driver of the bus was driving the same after following all traffic rules. When the claimant was crossing the main road without following any traffic rules, since it was a busy road, the driver of the bus was unable to control the bus. Under that circumstance, the finding of the Tribunal that the claimant has contributed negligence to the occurrence of accident only at 10% is on the lower side.

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In respect of quantum of compensation, he

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has contended that even though the claimant hash claimed that he was earning Rs.18,000/- per month, working as a Flower Seller at Madhu Flowers, K.R. Puram, Bengaluru, he has not produced any documents

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to show that he was earning Rs.18,000/- per month. He further contended that the claimant has examined the doctor. The doctor has assessed the permanent disability of 46.40% to the whole body. The Tribunal while assessing the whole body disability, has considered 25% to the whole body, which is on the higher side.

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Lastly, he has contended that considering the injuries suffered by the claimant and considering the evidence of doctor, the compensation awarded by the Tribunal for pain and suffering, loss of amenities, other incidental expenses is on the higher side.

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He would further contended that in view of

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the judgment of this court in the case of Ms. Joyeeta

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Bose and others vs. Venkateshan N. and others in MFA No.5896/2018 connected with MFA

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No.4444/2018 and MFA No.4659/2018 , the interest

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awarded by the Tribunal at 7.5% per annum is on the higher side. Hence, he sought for allowing the appeal filed by the Corporation.

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Per contra, Sri. Uday Kumar R.L., learned counsel appearing for the claimant has contended that the claimant was crossing the road after following all procedures of law. As per the Sketch – Ex.P6, it is clear that he has already crossed 90% of the road. The driver of the bus without following traffic rules, came in a high speed, has dashed against the claimant. Under that circumstance, the Tribunal instead of holding that the driver of the bus alone is liable for causing the accident has erroneously held that 10% contribution is on the part of the claimant.

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In respect of quantum of compensation, he

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has contended that at the time of the accident, the claimant was earning Rs.18,000/- per month, working

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as flower seller. To prove the same, he has examined the shop owner as PW3.

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The Tribunal has assessed the monthly

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income of the claimant as Rs.8,000/- per month is on the lower side. He further contended that due to that accident, the claimant has suffered grievous injuries. He was in-patient for a period of 7 days. He has suffered lot of pain during the treatment. He has examined the doctor. The doctor has assessed the 23% cognitive disability, 28% neurobehavioral disability and disability to the whole body at 46.40%. Under that circumstance, the functional disability assessed by the Tribunal at 20% is on the lower side. Lastly, he has contended that due to that accident, the claimant has suffered grievous injury. He was in-patient for a period of seven days. He has suffered lots of pain during the treatment. He has to suffered disability and unhappiness throughout his life. Under that circumstance, the compensation awarded by

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the Tribunal for pain & suffering, loss of amenities and other incidental expenses is on the lower side. Hence, he sought for enhancement of compensation.

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

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The case of the claimant is that on 26.09.2016, when he was crossing the road near 7^th Cross Wilson Garden, Bengaluru, at that time, a bus bearing registration No.KA-57-F-1398 came from Dairy Circle towards Lalbag side, in a rash and negligent manner and dashed the claimant, due to the impact, he fell down and sustained injuries. Immediately, he was shifted to Abhaya Hospital. Thereafter, he was shifted to NIMHANS. After recovering from the injuries, he has filed the claim petition, claiming compensation of Rs.10,00,000/- with interest.

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To prove his case, the claimant has

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examined himself as PW1. In his evidence, he has categorically stated that the accident is occurred due to rash and negligent driving of the driver of the bus and he has marked FIR, complaint, spot mahazar, wound certificate, IMV report, sketch, charge sheet.

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To disprove the evidence of the claimant, the respondent has examined the driver of the bus as RW1. In his evidence, the driver has deposed that he was driving the bus slowly after observing the traffic rules. The claimant was trying to cross the road in a zigzag manner where there is no pedestrian crossing and no traffic lines for crossing. Since, it was a very busy road, he was unable to control the bus and he has contended that the claimant himself is responsible in causing the accident.

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I have seen the sketch which is produced at

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Ex.P6 and IMV Report at Ex.P5, Ex.P3-Spot Mahazar.

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There is a substance in the contention of the respondent because photographical situation of the place of the accident depicts that it is a busy road. Many number of vehicles ply on the said road and there is no traffic signal or any pedestrian crossing, which depicts from the Sketch and Mahazar.The driver of the bus was driving the bus in a high speed, rash and negligent manner. Considering the evidence of the parties, considering the documents available on records, I am of the opinion that the claimant has contributed 20% of his negligence in causing the accident and the driver of the bus has contributed 80% in causing the accident.

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In respect of the quantum is concerned, even though the claimant claims that he was earning Rs.18,000/- per month, working as a flower seller at Madhu Flowers and he has examined Sri. Vishwanathan who is the proprietor of Madhu Flowers

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as PW3. Except that, he has not produced any document to prove that he was getting Rs.18,000/- per month. Even he has not produced any bank statement to show that he was earning Rs.18,000/- per month. Under that circumstance, the notional income has to be assessed as per the guideline issued by the Karnataka State Legal Services Authority. For the accident occurred in the year 2016, the notional income has to be taken at Rs.9,500/- per month. Due to the said accident, the claimant has suffered the following injuries :

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(i) Scar – left leg

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(ii) Scar – right forearm

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(iii) swelling left side forehead

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C.T. Scan of brain reveals – evidence of right temporal EDH with underlying contusion with traumatic SAH.

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He has examined Dr. Nagesh S.A. as PW5. In

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his evidence, he has deposed that the claimant has

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suffered 23% of cognitive disability and 28%

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neurobehavioral disability and the whole body disability suffered by the claimant is 46.40%. After considering the evidence of PW5 and considering the wound certificate, the Tribunal has rightly assessed the functional disability of the claimant at 20%. At the time of the accident, the claimant was aged about 34 years. The multiplier applicable to his age group is 16. Therefore, the loss of future income has been reassessed as :

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Rs.9,500/-x12x16x20% = Rs.3,64,800/-.

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Due to the said accident, the claimant has suffered the above injuries. He was in-patient for a period of seven days. He has suffered lots of pain during the treatment. He has to suffer disability and unhappiness throughout his life. Considering the evidence of doctor, considering the wound certificate, I am inclined to enhance the compensation under the

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head ‘loss of amenities’ at Rs.40,000/- as against Rs.20,000/- awarded by the Tribunal. Loss of income during laid up period is granted for three months i.e., Rs.9,500/-x3 months = Rs.28,500/-. The compensation awarded by the Tribunal under the other heads are just and reasonable.

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In view of the judgment of this court in the case of Ms. Joyeeta Bose and others vs. Venkateshan N. and others in MFA No.5896/2018 connected with MFA No.4444/2018 and MFA No.4659/2018, the interest awarded by the Tribunal has to be reduced to 6% from 7.5% per annum. In all, the claimant is entitled for a total compensation of Rs.5,57,564/- as against Rs.4,56,264/-with interest at 6% per annum from the date of petition till the date of realization. The break-up is as under :

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Sl.No.	Particulars	Amount
01.	Pain and Suffering	Rs.50,000-00
02.	Attendant charges, extra food and conveyance expenses	Rs.10,000-00
03.	Medicalexpenses	Rs.44,264-00
04.	Loss of income during laid up period	Rs.28,500-00
05.	Loss of income due to permanent disability	Rs.3,64,800-00
06.	Loss of future amenities and happiness	Rs.40,000-00
07.	Futuremedicalexpenses	Rs.20,000-00
	TOTAL	Rs.5,57,564-00