Disposed

Sri Purushotham v. the Managing Director

Karnataka HC2 Aug 2024MFA/3939/2019

Case brief

AI extract

What is this about?

Cross-appeals in a motor accident claim against a BMTC bus. The High Court affirmed the driver's negligence despite the claimant's alleged intoxication, reassessed notional income at Rs.12,500 per month with 15% whole-body disability, enhanced compensation to Rs.4,72,300, and reduced interest from 8% to 6% per annum.

What did the court decide?

Compensation enhanced to Rs.4,72,300 with interest at 6% p.a. (excluding future medical expenses), payable by BMTC within six weeks.

Sri Purushotham Vs the Managing Director — Motor Accident Claims | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 3939 OF 2019 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 1316 OF 2019(MV)

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IN MFA 3939/2019 BETWEEN: SRI PURUSHOTHAM S/O MARIYAPPA AGED ABOUT 48 YEARS RESIDING AT NO.395/2, 1ST CROSS 1ST MAIN, SUGGAPPA LAYOUT LAGGERE, BENGALURU - 560 058.

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…APPELLANT

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(BY SRI. CHANDRASHEKARAIAH B.,ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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THE MANAGING DIRECTOR B.M.T.C SARIGE BHAVAN SHANTHINAGAR BENGALURU - 560 027. …RESPONDENT (BY SMT. SOHANI A HOLLA.,ADVOCATE)

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FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 1316/2019 BETWEEN:

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THE MANAGING DIRECTOR B.M.T.C, SHANTHINAGAR KH ROAD, BENGALURU - 560 027.

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…APPELLANT

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(BY SMT. SOHANI A HOLLA.,ADVOCATE)

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AND:

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SRI PURUSHOTHAM S/O MARIYAPPA AGED ABOUT 47 YEARS RESIDING AT NO.395/2, 1ST CROSS 1ST MAIN, SUGGAPPA LAYOUT LAGGERE, BENGALURU - 560 058.

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...RESPONDENT

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(BY SRI. CHANDRASHEKARAIAH B.,ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18/09/2018, PASSED IN MVC NO.1287/2018, ON THE FILE OF THE XXI ACMM., & XXIII ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU, AWARDING COMPENSATION OF RS.3,15,500/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSITING THE AMOUNT (EXCEPT FUTURE MEDICAL EXPENSES)

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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MFA No.3939/2019 is filed by the claimant and MFA No.1316/2019 is filed by the Corporation under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) being aggrieved by the judgment dated 18.09.2018 passed by the XXI ACMM & XXIII ASCJ, Bengaluru in MVC No.1287/2018.

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Facts giving rise to the filing of the appeals briefly stated are that on 12.12.2018 at about 9.00 p.m., the claimant was crossing the road near Ganghi Circle, Platform road, Sheshadripuram, Benagluru to go to reach BMTC Bus stop, which is at opposite side with due caution by observing all the traffic rules and regulations. At that time, the driver of the BMTC Bus bearing Registration No.KA-01-FA-148 came from the Nataraja Theater with high speed and in a rash and negligent manner so as to endangering to human life and dashed to the claimant. As

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a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

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Upon service of notice, the respondent appeared through counsel and filed written statement denying the averments made in the claim petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, Dr. Ramesh was examined as PW-2 and another witness was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P14. On behalf

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of the respondents, one witness was examined as RW-1 but no document was exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.3,15,500/along with interest at the rate of 8% p.a. and directed the Corporation to deposit the compensation amount along with interest. Being aggrieved, the present appeals have been filed.

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

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a) Firstly, the accident occurred due to the claimant's own negligence. He had attempted to board the moving bus in a hurried and negligent manner, lost control, and fallen in front of the bus and sustained simple injuries. The Tribunal failed to consider this aspect of the matter. According to the MLC report, the claimant had consumed

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alcohol at the time of the accident, which impaired his control over his body, causing him to lose balance and fall from the bus. The Tribunal erred in holding the bus driver solely negligent in causing the accident.

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b) Secondly, the assertion of claimant that he was earning Rs.18,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the notional income assessed by the Tribunal is on higher side.

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c) Thirdly, the claimant examined the doctor as PW-2. In his testimony, the doctor deposed that the claimant had suffered a physical disability of 40% in the right lower limb. However, the Tribunal's assessment of 15% whole body disability appears to be on the higher side. d) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

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e) Lastly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –vVenkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. on the compensation amount appears excessive.

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With the above contentions, learned counsel for the Corporation sought to allow the appeal filed by the Corporation by dismissing the appeal filed by the claimant.

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

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a) Firstly, when the claimant was crossing the road, the driver of the Bus drove the same in a rash and negligent manner and dashed the claimant. As a result of the impact, the claimant fell and suffered injuries. Although the respondent suggested during the cross-examination of PW-1 that the claimant was crossing the road at a location without a zebra crossing, the respondent's claim that the claimant was attempting to board a moving bus and lost

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balance, resulting in a fall, is contradicted by the evidence and material on record. She further submitted that the MLC report mentioned the claimant had consumed alcohol,

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but the percentage of alcohol consumption was not specified. Therefore, the Tribunal, after considering the evidence of the parties, correctly concluded that the bus driver was negligent in causing the accident.

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b) Secondly, the Tribunal erred in assuming the monthly income of the claimant as Rs.8,000/-, despite evidence showing he earned Rs.18,000/- per month by working as a Electrician.

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c) Thirdly, the claimant has examined the doctor as PW2. The Tribunal undervalued the claimant's whole-body disability at 15%, contradicting the evidence of the doctor that the claimant suffered 40% disability to right lower limb and 20% to whole body.

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d) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 22 days. Even after discharge from the hospital, he was not in a position to discharge his regular

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work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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With the above contentions, learned counsel for the appellant sought to allow the appeal filed by the appellant by dismissing the appeal filed by the Corporation.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and original records.

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The case of the claimant is that on 12.12.2018 at about 9.00 p.m., the claimant was crossing the road near Ganghi Circle, Platform road, Sheshadripuram, Benagluru to go to reach BMTC Bus stop, which is at opposite side with due caution by observing all the traffic rules and regulations. At that time, the driver of the BMTC Bus

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bearing Registration No.KA-01-FA-148 came from the Nataraja Theater with high speed and in a rash and negligent manner so as to endangering to human life and dashed to the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM –v- ORIENTAL

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INSURANCE COMPANY LIMITED (2018) 5 SCC 656,

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the Hon’ble Apex Court has held as hereinbelow:

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“25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

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Even though the respondent has taken a contention

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that the claimant had attempted to board the moving bus in a hurried and negligent manner, lost control, and fallen in front of the bus and sustained simple injuries, to prove the same, except examining the driver of the Bus as RW-1

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no other independent witness has been examined. On the other hand, the respondent suggested during the crossexamination of PW-1 that the claimant was crossing the road at a location without a zebra crossing. Therefore, the accident occurred due to negligence of the claimant himself.

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Immediately after the accident, the claimant filed a complaint against the bus driver, alleging that while crossing the road, the driver operated the bus in a rash and negligent manner, hitting the claimant. The Police registered an FIR and following a thorough investigation, filed a charge sheet against the bus driver. In light of these facts, the Tribunal correctly concluded that the bus driver was solely responsible for the accident due to his negligence.

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The MLC report only mentioned that the claimant had a breath smell of alcohol, but did not specify the quantity consumed. The opposing side failed to produce any evidence that the claimant's alcohol consumption caused

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the accident by leading to a loss of control and subsequent fall. Considering all these factors, the Tribunal correctly answered Issue No. 1 in the affirmative.

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The claimant claims that he was earning Rs.18,000/per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2018, notional income shall be taken at Rs.12,500/- p.m.

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As per wound certificate, the claimant has sustained CLW over medial side of right ankle, tenderness over middle of right thigh and abrasion over right knee. The doctor in his evidence has stated that the claimant has suffered physical disability of 40% from right lower limb and 20% disability to the whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has

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rightly taken the whole body disability at 15%. The claimant is aged about 49 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.2,92,500/- (Rs.12,5001213*15%) on account of 'loss of future income'.

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The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 3 months. Consequently, the claimant is entitled for compensation of Rs.37,500/- (Rs.12,500*3 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was hospitalized as an inpatient for more than 22 days in the hospital. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from

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Rs.40,000/- to Rs.50,000/- and under the head of 'loss

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of amenities' from Rs.20,000/- to Rs.40,000/- .

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Considering the nature of injuries, the compensation

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awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	40,000	50,000
Medical expenses	12,286	12,286
Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	16,000	37,500
Loss of amenities	20,000	40,000
Loss of future income	187,200	292,500

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16 -

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Future medical expenses	20,000	20,000
Total	3,15,486	4,72,286
Rounded off	3,15,500	4,72,300

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20. In the result, the following order is passed:

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ORDER

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a) The appeals are disposed of.

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b) The judgment of the Claims Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.4,72,300/-.

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d) Following the judgment of the Division Bench of this

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Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the interest at 8% per annum awarded by the Tribunal is scale down to 6%.

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e) The Corporation directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of

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six weeks from the date of receipt of copy of this

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