Partly allowed

Vijayaraj Urs v. the Managing Director Bmtc

Karnataka HC4 Jul 2023MFA/3103/2021

Case brief

AI extract

What is this about?

In a miscellaneous first appeal against an award of compensation for a road accident, this Court found the Tribunal erred in calculating functional disability and notional income. The Court enhanced the compensation by altering the disability percentage and future income calculation.

What did the court decide?

The appeal was allowed in part; additional compensation of Rs.67,318 granted with interest at 6% p.a. from the date of petition.

Vijayaraj Urs Vs the Managing Director Bmtc — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:22919 MFA No. 3103 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO.3103 OF 2021 (MV-I)

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BETWEEN:

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VIJAYARAJ URS S/O LATE SIDDARAJU URS AGED ABOUT 62 YEARS, R/AT AMACHAVADI VILLAGE CHAMARAJANAGARA TQ AND DIST NOW R/AT C/O MAHESH 3^RD CROSS BASAVESHWARANAGARA KOLLEGALA TOWN AND TALUK-571 440

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… APPELLANT

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(BY SRI.SREENIVASAN M Y.,ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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THE MANAGING DIRECTOR, BMTC K.H.DOUBLE ROAD SHANTHINAGARA BENGALURU -560 027

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(BY SRI.D.VIJAYAKUMAR.,ADVOCATE)

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…RESPONDENT

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MV ACT, PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD PASSED BY ADDL.SENIOR CIVIL JUDGE & MACT, CHAMARAJANAGARA IN MVC NO.332/2019 ON 20.02.2021 THEREBY ENHANCING THE COMPENSATION SUITABLY WITH INTEREST AND GRANT SUCH

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NC: 2023:KHC:22919 MFA No. 3103 of 2021

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OTHER RELIEFS IN FAVOUR OF THE APPELLANT IN THE CIRCUMSTANCES OF THE CASE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel appearing for the appellant and learned counsel for the respondent. By consent of both sides, the matter is taken up for final disposal, though it is posted for admission.

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This appeal is directed against the judgment & award in MVC No.332/2019 dated 20^th February, 2021 passed by the learned Addl. Senior Civil Judge & MACT, Chamarajanagara. Being aggrieved by the grant of compensation by the Tribunal, the appellant is seeking enhancement of the same.

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The petitioner contends that on 6.12.2018 at about 8.30 p.m. while he was traveling in BMTC bus bearing Registration No.KA-01-FA-1492 from Banashankari towards Aravind Circle, the driver of the said bus driven the same in rash and negligent manner and hit to the left side tree causing the accident and the petitioner sustained comminuted fracture

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3 - NC: 2023:KHC:22919 MFA No. 3103 of 2021

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of right humerus and he was operated for the same. It was contended that the petitioner had to spend huge amount for the treatment and he has suffered permanent disability and as such entitled for compensation.

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On issuance of notice to the respondent/BMTC, respondent has appeared and filed objections and contended that the compensation claimed is highly exhorbitant, excessive and untenable in law. The Tribunal framed appropriate issues and the petitioner was examined as PW.1 and Ex.P1 to Ex.P12 were marked and the doctor who assessed disability was examined as CW.1 and Ex.C1 to Ex.C5 were marked in evidence. The respondent examined its driver as RW.1. After hearing the arguments, the Tribunal has awarded compensation of Rs.3,49,037/- under the following heads:

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Sl.No.	Head of compensation	Compensation amount awarded
1	Medical expenses	Rs. 74,355/-
2	Food, conveyance, nourishment and attendant charges	Rs. 7,000/-
3	Loss of income during laid up period	Rs. 10,000/-

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NC: 2023:KHC:22919 MFA No. 3103 of 2021

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4	Pain and agony	Rs. 50,000/-
5	Loss of amenities in life	Rs. 50,000/-
6	Loss of future income	Rs. 82,682/-
7	Future medical expenses	Rs. 75,000/-
	Total	Rs.3,49,037/-

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Being aggrieved by the said judgment, the petitioner

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is before this Court. On issuance of notice in this appeal, the respondent/BMTC has appeared through its counsel.

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Learned counsel appearing for the appellant submits that the disability of 7.33% taken by the Tribunal is erroneous and the petitioner was working as an agriculturist and he having suffered the fracture of humerus, it is affecting his functionality and therefore, he seeks for re-assessment of the functional disability suffered by him. He also submits that the notional income of the petitioner needs to be re-assessed and sought for intervention of this Court.

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Per contra, learned counsel appearing for the respondent submitted that the compensation awarded by the

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NC: 2023:KHC:22919 MFA No. 3103 of 2021

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Tribunal is just, proper and correct and there is no need for enhancement.

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The perusal of the impugned judgment discloses that the petitioner was an agriculturist and he has suffered fracture of the humerus which has resulted in whole body disability of 22% as spoken to by CW.1. The fact that the petitioner was an agriculturist and he has suffered fracture of humerus is not in dispute. So also the fact that the driver of the BMTC has driven the same in a negligent manner and that the petitioner was passenger of the said bus is not in dispute. Under these circumstances, the functional disability of the petitioner assessed by the Tribunal at 7% by dividing 22% disability by ‘3’ is incorrect and it has not assessed functional disability in the proper way. In the considered opinion of this Court, the functional disability of the petitioner has to be assessed at 10%.

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The Tribunal has considered the notional income of the petitioner at Rs.11,750/-. The basis for taking such notional income is not stated by the Tribunal. The guidelines issued by the Karnataka State Legal Services Authority

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(‘KSLSA’ for short) for settlement of the disputes before the Lok-Adalat prescribes the notional income of Rs.12,500/- per month for the year 2018. In umpteen number of cases, this Court has held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act for the skilled labourers. Therefore, the notional income of the petitioner is assessed at Rs.12,500/- per month.

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For the aforesaid reasons, the loss of future income of the petitioner is calculated at Rs.1,35,000/- (Rs.12,500/- x 12 x 9 x 10%) by adopting the multiplier of ‘9’ relevant to his age.

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Consequent upon the notional income being held to be Rs.12,500/- per month and by considering that he was unable to resume his work atleast for a period of two months, the loss of income during laid up period is calculated at Rs.25,000/- (Rs.12,500/- x 2). The compensation awarded by the Tribunal under the remaining heads is just and proper and does not require any re-assessment.

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Hence, the petitioner is entitled for compensation under the different heads as below:

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NC: 2023:KHC:22919 MFA No. 3103 of 2021

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Sl.No.	Head of compensation	Compensation amount awarded
1	Medical expenses	Rs. 74,355/-
2	Food, conveyance, nourishment and attendant charges	Rs. 7,000/-
3	Loss of income during laid up period	Rs. 25,000/-
4	Pain and agony	Rs. 50,000/-
5	Loss of amenities in life	Rs. 50,000/-
6	Loss of future income	Rs.1,35,000/-
7	Future medical expenses	Rs. 75,000/-
	Total	Rs.4,16,355/-
	Less: compensation awarded by the Tribunal	Rs.3,49,037/-
	Enhanced compensation	Rs. 67,318/-

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In view of the aforesaid reasons, the appeal deserves

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to be allowed in part. Hence, the following order:

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O R D E R

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i) The appeal is allowed in part .

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8 - NC: 2023:KHC:22919 MFA No. 3103 of 2021

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ii) The appellant/petitioner is entitled for the compensation of Rs.67,318/- (Rupees sixty-seven thousand three hundred and eighteen only) in addition to the compensation awarded by the Tribunal alongwith interest at the rate of 6% per annum from the date of petition till its deposit before the Tribunal.

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iii) Rest of the conditions imposed by the Tribunal remain unaltered.

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Sd/JUDGE

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GSS List No.: 1 Sl No.: 83

Vijayaraj Urs v. the Managing Director Bmtc

Case brief

What is this about?

What did the court decide?

Vijayaraj Urs v. the Managing Director Bmtc

Case brief

What is this about?

What did the court decide?

What the court decided

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