Partly allowed

Mr.Harish H.N. @ Kumar v. the Division Manager

Karnataka HC16 Jan 2024MFA/877/2021

Case brief

AI extract

What is this about?

Cross-appeals by a claimant injured in a collision between his car and a BMTC bus and by BMTC against a tribunal award of Rs.5,26,284/-. The High Court rejected BMTC's plea of contributory negligence, accepted the doctor's disability opinion, raised notional income to Rs.14,000/- per month, and enhanced total compensation to Rs.6,63,964/- with interest at 6% p.a.

What did the court decide?

Claimant's appeal allowed in part; Corporation's appeal rejected; award modified and enhanced to Rs.6,63,964/- with 6% p.a. interest payable within six weeks; no interest on future medical expenses.

Mr.Harish H.N. @ Kumar Vs the Division Manager — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JANUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 877 OF 2021 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 4752 OF 2020 (MV-I)

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IN MFA NO. 877/2021:

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BETWEEN:

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MR.HARISH H.N. @ KUMAR S/O NARASIMHAMURTHY, AGED ABOUT 32 YEARS, R/AT 53, SADAHALLI DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT.

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…APPELLANT

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(BY SRI. GURUDEV PRASAD K T.,ADVOCATE)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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THE DIVISION MANAGER BENGALURU METROPOLITAN TRANSPORT CORPORATION K.H.ROAD, SHANTHINAGAR BENGALURU-560 027.

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…RESPONDENT

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(BY SRI D.VIJAYAKUMAR .,ADVOCATE)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 07.02.2020, PASSED IN MVC NO.1701/2019, ON THE FILE OF THE XVII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, MAYO HALL UNIT, BENGALURU (SCCH-21), PARTLY ALLOWING THE CLAIM

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NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 4752/ 2020

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BETWEEN:

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THE DIVISION MANAGER B.M.T.C K.H.ROAD, SHANTHINAGAR BENGALURU-560 027.

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…APPELLANT

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(BY SRI D. VIJAYAKUMAR., ADVOCATE)

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AND:

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SRI.HARISH H.N. @ KUMAR S/O NARASIMHAMURTHY, AGED ABOUT 32 YEARS, R/AT 53, SADAHALLI DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT- 562 110

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…RESPONDENT

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(BY SRI. K.T. GURUDEV PRASAD, ADVOCATE)

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THESE APPEALS, ARE COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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J U D G M E N T

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These two appeals are preferred by the claimant as well as the B.M.T.C. challenging the common Judgment & Award passed by the XVII Addl. Judge, Court of Small Causes & Member, M.A.C.T., Mayo Hall Unit, Bengaluru, in MVC No.1701/19 dated 7^th February 2020.

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The appeal preferred by the claimant is founded

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on the premise of inadequate and meager compensation awarded by the Tribunal, whereas the appeal preferred by the Insurance Company questions the legality and exhorbitant compensation awarded by the Tribunal.

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Parties to this appeal shall be referred to as per

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their status before the Tribunal.

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Brief facts of the case are as under:

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That on 6^th February 2019 when the claimant was travelling in the car bearing Registration No.KA-02-MA4154, driving the same, on Hesaraghatta - Byatha road, near Tank bund area, Bangalore North taluk, the BMTC

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4 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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bus bearing Registration No.KA-57-F-3303 driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the car driven by the claimant resulting in the accident and the injuries being sustained by the claimant. The claimant was thereafter taken to Chaithanya hospital for first aid treatment and then shifted to KIMS hospital, Bengaluru for better treatment where he spent more than Rs.1,50,000/for his treatment and medicine. It is the case of the claimant that he was hale and healthy prior to the occurrence of the accident and working as a stone cutter earning Rs.30,000/- per month. Due to the injuries suffered in the accident, he is unable to perform his day to day activities as he was able to do prior to the occurrence of the accident. In view of the injuries suffered and the expenditure met, claimant filed a claim petition against the Corporation seeking compensation.

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4.1 On service of notice, respondent appeared

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through his counsel and filed written statement denying

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5 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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the claim made by the claimant including age, income, avocation and the amount spent towards medical expenses. The respondent also denied the negligence attributed against the driver of the bus and contended that the claimant has not given any signal when he negotiated his vehicle on to the lake cross, thereby accident occurred.

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On these grounds, sought for dismissal of the claim petition.

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4.2 Based on the pleadings, the Tribunal framed relevant issues for consideration.

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4.3 In order to substantiate the issues and to prove the case, claimant No.1 got examined himself as PW.1 and the doctor as PW.2 and got marked documents as per Ex.P1 to P15. On the other hand, respondent-Insurance Company got examined driver of the BMTC bus as RW.1 and got marked Driving Licence as Ex.R1.

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4.4 On the basis of material evidence produced by the parties, the tribunal awarded the compensation of

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6 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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Rs.5,26,284/- with interest @ 6% p.a. from the date of petition till its realisation and fastened the entire liability against the respondent.

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4.5 Being aggrieved by the same, the claimant is before this Court in MFA.No.877/2021 seeking enhancement of compensation and the Corporation is also before this Court in MFA.No.4752/2020 seeking to set aside the judgment and award passed by the tribunal on the ground of it being erroneous.

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It is the vehement contention of learned counsel for claimant that the tribunal has committed an error in not awarding suitable compensation to the claimant. The tribunal has not taken the proper income for computation, so also, on other heads, the tribunal has awarded meager compensation, which calls for interference at the hands of this Court. On these grounds, he seeks to allow the appeal and enhance the compensation.

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Per contra , learned counsel for Corporation vehemently contends that the tribunal has committed a

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7 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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gross error in fastening the entire liability on the Corporation ignoring the fact that there is equal contributory negligence as against the driver of the car, who could not negotiate the turn towards his left side and dashed against the oncoming BMTC bus. It is the contention of learned counsel that the driver of the car was not possessing a valid and effective Driving Licence. Admittedly, it is claimed that the driver of the car is claiming to be a stone cutter and has not produced any piece of evidence before the Court to show his possession of a Driving Licence to drive the car.

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6.1 Learned counsel further contends that the driver of the car could have negotiated or stopped his car after seeing the bus coming from the opposite direction which could have avoided the accident. It is also contended by learned counsel that the complaint is lodged by one, Vinod Kumar, who was not examined by the claimant to justify or corroborate the evidence of the claimant. He further relies on Ex.P3-sketch to show that it is an unbelievable

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document created by the Police Authorities to facilitate the claimant to secure high compensation.

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6.2 Learned counsel further contends that the negligence ought to have been attributed even against the driver of the car i.e. the claimant of more than 60%. On perusal of Ex.P3, the sketch, it appears that the accident has happened due to the negligence of the driver of the car. He further contends that the evidence of PW.2-Doctor is again inflated, exaggerated and mischievous for the reason that PW.2-Doctor has given vague statement with regard to disability of 43.92% to the right lower limb and 14.64% to the whole body, whereas the contradicting documents have been produced by the claimant himself to show that the fractures are united. Under the circumstances, there cannot be disability to the extent of 14% to the whole body. Hence, the same is excessive and unreasonable.

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6.3 Learned counsel further contends that the income assessed by the tribunal is correct, as no

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9 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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documents are placed by the claimant to show the correct income. Hence, the tribunal has taken the notional income of Rs.11,000/- per month, which does not call for interference. It is also contended that under all other heads, excess compensation has been awarded. On these grounds, he seeks to set-aside the judgment and award, fastening the contributory negligence of 60% against the driver of the car i.e. the claimant and reduce the compensation awarded under other heads.

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I have heard learned counsel for claimant as well as learned counsel for Corporation.

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It is not in dispute that the accident occurred on 06.02.2019, wherein the car driven by the driver, who is the claimant met with an accident against BMTC Bus and due to the accident, the claimant sustained injuries. In order to establish the aspects of occurrence of accident, involvement of two vehicles on a public road, the claimant has produced Exs.P1 to P7 being the Police records, which would indicate that the FIR and chargesheet have been

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10 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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laid against the driver of the bus, a sketch has been produced along with spot mahazar and the complaint. These Police records are not questioned by the driver of the bus. Hence, the negligence has been rightly attributed as against the driver of the bus.

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Now the question is as to whether the negligence attributed against the driver of the bus is absolute. When the chargesheet and FIR have been laid against the driver of the bus, the onus shifts on the driver of the bus either to challenge the same or the Corporation to contradict the statement made in the Police records and to establish that there is contributory negligence on the part of the driver of the car.

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Though vehement contentions have been putforth by learned counsel for Corporation that Ex.P3-sketch is a concocted and unbelievable document created by the Police in collusion with the claimant for mala fide intention to make fast and quick money, unless cogent material is placed to contradict the same, it will have to be believed

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11 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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and accepted on the face value as it is the part of the Police records in the criminal case lodged against the driver of the bus. Merely by issuing Ex.P3-sketch, it cannot be said that there is negligence on the part of the driver of the car and as on the naked eye, it is evident that the width of the place of incident is 30 feet. The accident occurred at 10 feet from the right side of the bus and left side of the car. While the car was negotiating a turn towards left side, the driver of the bus coming from north direction towards west while taking a turn has dashed against the car.

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If the contention of learned counsel for Corporation is to be believed, then he would have to establish that there was absolutely no space on the left side for the bus to negotiate and hence, he has to come on the extreme right side towards his right, whereas on perusal of the sketch, it is seen that road being 30 feet wide, the accident having occurred 10 feet from the right side of the bus, there was still 20 feet available on the left

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12 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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side of the bus, he could have avoided the car and had sufficient time to travel in his own course to take a left turn from the west towards north direction curve. Under these circumstances, I am afraid the contention of learned counsel for Corporation cannot be accepted as no material is placed either by way of documents or through crossexamination to establish there was contributory negligence on the part of the driver of the car.

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Secondly, it is vehemently contended by learned counsel for Corporation that the disability assessed by the Doctor is exorbitantly high, it is a concocted document without any proper basis and unbelievable disability that has been expressed by PW.2-Doctor and the tribunal ought not to have accepted the same and hence, he seeks for reduction of disability to a large extent.

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Fundamentally, in a case of the motor vehicle accident, when the Doctor, who is an expert is examined, his opinion has to be accepted on the face value with regard to disability. However, with regard to functional

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NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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disability, of course, it is the discretion of the Court to assess the same on the basis of age, avocation and income of the claimant. But, if the Corporation wants to dispute the expert's opinion of the Doctor, there is no difficulty for the Corporation to examine the claimant through another Doctor or provide its own expert's opinion through a second opinion from its panel of Doctors, if any or refer the same to the Medical Board to establish that the Doctor's evidence or the opinion so expressed is not correct and proper as per the Medical Standards and Gazette notification of the Government of India and that the second opinion is contrary to the opinion so expressed by the Doctor to dislodge the theory or the disability expressed by the Doctor.

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The Corporation being a huge Organisation by itself could have obtained second opinion or contraverted the evidence so adduced by the Doctor, which in my opinion, has not been placed on record and nothing prevented the Corporation from doing so. Under the

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14 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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circumstances, when no such materials are available, the tribunal has rightly accepted the opinion expressed by the Doctor and assessed the disability to be 14%, which according to me, does not call for interference.

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Now coming to the age, avocation and income of the claimant as on the date of occurrence of accident, the tribunal has taken the income at Rs.11,000/- per month. However, the Legal Services Authority chart stipulates the notional income of Rs.14,000/- for the accident of the year 2019 and accordingly, the same is taken in this case. The age of the claimant is 30 years. The appropriate multiplier would be '17', which is rightly applied by the tribunal and the same does not call for interference. Therefore, the claimant would be entitled to the compensation of Rs.3,99,840/- (Rs.14,000/- x 12 x 17 x 14%) towards loss of future earning capacity due to disability as against Rs.3,14,160/- awarded by the tribunal.

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The tribunal awarded Rs.40,000/- towards pain

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and suffering. However, this Court deems it appropriate to

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NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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award additional amount of Rs.10,000/-. In all,

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Rs.50,000/- is awarded under this head.

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The tribunal awarded Rs.58,124/- towards medical expenses, which does not call for interference and the same is retained.

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The tribunal awarded Rs.25,000/- towards future medical expenses. However, PW.2-Doctor deposed that the claimant has to undergo one more surgery for removal of implant and the cost of surgery would be around Rs.35,000/- to Rs.40,000/-. Therefore, this Court deems it appropriate to award additional amount of Rs.10,000/-. In all, Rs.35,000/- is awarded under this head.

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The tribunal awarded Rs.10,000/- towards conveyance, food and nourishment, attendant charges and other incidental expenses. However, the claimant was inpatient for a period of 14 days. Therefore, this Court deems it appropriate to award additional amount of Rs.10,000/-. In all, Rs.20,000/- is awarded under this head.

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16 - NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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The tribunal awarded Rs.44,000/- towards loss of income during laid up period. In view of this Court enhancing the income from Rs.11,000/- to Rs.14,000/-, the claimant would require atleast four months period to recuperate and to get back to his normal day to day activities. Therefore, the claimant would be entitled to Rs.56,000/- (Rs.14,000/- x 4) under this head.

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The tribunal awarded Rs.35,000/- towards loss of amenities in life/life comforts and expectancy of life. However, this Court deems it appropriate to award additional amount of Rs.10,000/-. In all, Rs.45,000/- is awarded under this head.

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In view of the above, the claimant would be entitled to a total compensation of Rs.6,63,964/- as against Rs.5,26,284/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future earnings due to	3,99,840-00
disability
Pain and suffering	50,000-00
Medical expenses	58,124-00
Future medical expenses	35,000-00

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NC: 2024:KHC:2202 MFA No. 877 of 2021 C/W MFA No. 4752 of 2020

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Conveyance, food and nourishment, attendant charges and other	20,000-00
incidental expenses
Loss of earning during the period of	56,000-00
treatment
Loss of amenities in life/Life comforts and expectancy of life	45,000-00
TOTAL	6,63,964-00

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Accordingly, I pass the following:

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ORDER

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i) The appeal in MFA.No.877/2021 preferred by the claimant is allowed-in-part;

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ii) The appeal in MFA.No.4752/2020 preferred by the Corporation is rejected;

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iii) The judgment and award dated 07.02.2020 passed in MVC.No.1701/2019 by the Court of XVII Additional Judge, Court of Small Causes and Member, MACT, Bengaluru, is modified;

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iv) The claimant is entitled to a total compensation of Rs.6,63,964/- as against Rs.5,26,284/awarded by the tribunal;

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v) The enhanced compensation amount shall be paid with interest @ 6% p.a. by the respondent-Corporation within a period of six weeks from the date of receipt of a copy of this order. However, future medical expenses shall not carry any interest;

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vi) The amount deposited by the Corporation before this Court shall be transmitted to the jurisdictional tribunal;

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vii) The compensation amount shall be released in favour of the appellant-claimant in accordance with the terms of the tribunal, upon proper verification;

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viii) The original records shall be transmitted to the jurisdictional tribunal forthwith;

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ix) All other terms and conditions stipulated by the tribunal shall stand intact.

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Sd/JUDGE

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GSS/LB

Mr.Harish H.N. @ Kumar v. the Division Manager

Case brief

What is this about?

What did the court decide?

Mr.Harish H.N. @ Kumar v. the Division Manager

Case brief

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