Pintu P Jain Vs the Managing Director

Digitally signed by PANKAJA S THE MANAGING DIRECTOR Location: HIGH BMTC COURT OF SHANTHINAGAR KARNATAKA K.H ROAD BENGALURU - 560 027 (OWNER OF THE BUS BG.NO.KA-57-F-1455)

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…RESPONDENT

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(BY SRI. DABALI FAKKIRAPPA SHIDRAMAPPA, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.08.2019 PASSED IN MVC NO.6981/2018 ON THE FILE OF THE VIII ADDITIONAL JUDGE AND ACMM, MEMBER, MACT, BENGALURU SCCH-, PARTLY

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2 - NC: 2026:KHC:26131 MFA No. 1591 of 2022 C/W MFA No. 372 of 2020

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HC-KAR

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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 372/2020

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BETWEEN:

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THE MANAGING DIRECTOR, B.M.T.C SHANTHINAGAR, K.H ROAD, BENGALURU-560 027, (OWNER OF THE BUS BEARING REG NO KA-57-F-1455), REPRESENTED BY IT'S CHIEF LAW OFFICER

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...APPELLANT

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(BY SRI. DABALI FAKKIRAPPA SHIDRAMAPPA, ADVOCATE)

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AND:

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SRI. PINTU P JAIN S/O. PARASMAL, AGED ABOUT 22 YEARS NO. 17/1, 3^RD FLOOR, RAMANNAPET, J.M ROAD CROSS, BENGALURLU NORTH, BENGALURLU CITY-560 002

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...RESPONDENT

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(BY SRI. BOPANNA B, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.08.2019 PASSED IN MVC NO.6981/2018 ON THE FILE OF THE VIII ADDITIONAL JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH-5), AWARDING COMPENSATION OF RS.2,95,000/- WITH INTEREST AT 9 PERCENT P.A. (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.15,000/) FROM THE DATE OF PETITION TILL REALIZATION.

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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MFA.No.1591/2022 is by the claimant seeking enhancement of compensation.

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MFA.No.372/2020 is by the Bengaluru Metropolitan Transport Corporation (for brevity, "the BMTC") challenging the judgment and award dated 19.08.2019 passed in M.V.C.No.6981/2018 by the VIII Additional Small Causes and MACT at Bengaluru, whereby the Tribunal has partly allowed the claim petition filed by the claimant/appellant in M.F.A.No.1591/2022.

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The factual aspect of the matter is that on 27.10.2018, the claimant was travelling in motorbike bearing registration No.KA-01-HR-7493 towards National College playground at around 6.00 a.m. in N.R. Road near Lucia hotel, at that time, the BMTC bus bearing No.KA-57-F-1455 driven by its driver in a rash and

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HC-KAR

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negligently with high speed, dashed against the motorbike of the claimant. As a result, he tossed from the motorcycle and fell down to the road and sustained grievous injuries. Thereafter, he was shifted to Hosmat hospital, where he undergone surgery. As such, after registering FIR against the driver of the BMTC bus by the jurisdictional police, a claim petition was filed.

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Before the Tribunal, to prove the claim, the claimant has examined three witness on his behalf and marked 13 documents. The insurance company contested the matter and examined his officer as RW.1.

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On assessment of the oral and documentary evidence, the Tribunal has partly allowed the claim petition and granted compensation of Rs.2,95,000/- with interest at the rate of 9% per annum. Feeling aggrieved by the

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said judgment and award, the claimant filed MFA.No.1591/2022 and the BMTC has also filed M.F.A.No.372/2020.

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HC-KAR

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Heard the learned counsel for the claimant as

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well as the learned counsel for the BMTC.

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Apart from urging several contentions, the

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learned counsel for the claimant primarily contended that the income taken by the Tribunal is on the lower side and the Tribunal has failed to award any compensation under the head of loss of income during laid up period.

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Per contra , learned counsel for the BMTC vehemently contended that the Tribunal has totally erred while fixing the liability on the BMTC. According to him, the claimant has equally contributed negligence to the accident and as per Ex.P3 - spot mahazar panchanama and Ex.P4 - spot sketch, the accident had occurred in the middle of the road and as such, the claimant would have avoided the accident. He further contended that the Tribunal has wrongly relied on the evidence of PW.2/Doctor who had not treated the injured claimant and has wrongly assessed the disability at 28% to the right lower limb. Further, he also contended that the Tribunal

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HC-KAR

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has erroneously awarded 9% interest instead of 6% interest which is against the law laid down by the Division Bench of this Court. With these submissions, he prays to modify the award by allowing the appeal filed by the BMTC.

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I have given my anxious consideration on the submissions made by the learned counsel for the respective parties, so also perused the evidence available on record.

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As could be gathered from evidence of PW.1 and Exs.P3 and P4, the same reveals that the accident had occurred near a place called 'N.R. Road'. Ex.P4 - sketch depicts that the said road was one way road and the claimant was riding his motorbike in a right direction. On the other hand, the BMTC bus came from the opposite direction in one way road. As a result of which, the accident had occurred. Ex.P4 is supported by a Panchanama-Ex.P3. In such circumstances, the contention of the learned counsel for the BMTC that the claimant has

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HC-KAR

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also equally contributed negligence for the occurrence of the accident cannot be accepted.

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The other contention raised by the learned counsel for the BMTC in respect of evidence of PW.2/Doctor with regard to disability assessed by him also cannot be accepted for the reason that on perusal of Ex.P2 coupled with the evidence of PW.2/Doctor, the claimant has sustained type 1 open fracture shaft of right femur with right tibial spine avulsion and after considering the fracture, the Tribunal has rightly assessed the disability to the whole body at 10%.

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However, the contention raised by the learned counsel for the BMTC that the interest awarded by the Tribunal at the rate of 9% is on the higher side, needs to be considered, in view of the judgment in the case of

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Ms. Joyeeta Bose and others vs. Venteshan V. and

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others passed in M.F.A.No.5896/2018. As such, the interest is reduced from 9% to 6% p.a.

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HC-KAR

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In view of the above, MFA.No.372/2020 filed by

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the BMTC is allowed in part .

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As regards the appeal filed by the claimant in M.F.A.No.1591/2022 is concerned, the Tribunal granted Rs.2,95,000/- as compensation to the claimant.

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The Tribunal while assessing 'loss of future income' considered the disability caused to the claimant due to the accident at 10%, which is just and proper. The Tribunal also considered the notional income of the claimant as Rs.9,000/- p.m. Since there is no credible documentary evidence to ascertain the actual monthly income, it would be appropriate and prudent to adopt the monthly income determined by Karnataka State Legal Services Authority, which, for the accident of the year 2018, would be Rs.12,500/-.

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As the claimant was aged 21 years, a multiplier of '18' would have to be applied. Consequently, the

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HC-KAR

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claimant would be entitled to a sum of Rs.2,70,000/-

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(12,500 x 12 x 18 x 10%) towards 'loss of future income'.

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Having regard to the long lasting effects of the injuries and its treatment in the hospital, the claimant would be entitled to Rs.37,500/- ( 12,500 X 3 months)

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towards 'loss of income during the laid up period' .

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The compensation awarded by the Tribunal is

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modified as under:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal	As awarded by this Court
		(Rs.)	(Rs.)
1.	Pain and sufferings	50,000	50,000
2.	Loss of future income (12,500 X 12 X 18 X 10%)	1,95,000	2,70,000
3.	Medical expenses	--	--
4.	Future medical expenses	15,000	15,000
5.	Loss of income during the laid up period	--	37,500

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HC-KAR

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6.	Conveyance, food, nourishment, attendant charges	15,000	15,000
7.	Loss of amenities in life	20,000	20,000
	Total	2,95,000	4,07,500

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Thus, the claimant is held entitled to the total compensation of Rs.4,07,500/- as against Rs.2,95,000/-, along with interest at the rate of 6% per annum from the date of petition till its realization. Accordingly, the appeal

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of the claimant is allowed in part .

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The BMTC is directed to deposit the amount of compensation within a period of six weeks from the date of receipt of a copy of this judgment.

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The amount in deposit shall be transmitted to the Tribunal. The claimant is not entitled for the interest for the delayed period.

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SD/(RAJESH RAI K) JUDGE

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CR/List No.: 1 Sl No.: 57

Pintu P Jain v. the Managing Director

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Pintu P Jain v. the Managing Director

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