Ramu a Vs the Managing Director

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.02.2016 PASSED IN MVC NO.671/2015 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, [SCCH-14], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2026:KHC:21027 MFA No. 3598 of 2018

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the injured/claimant seeking for higher compensation challenging the judgment and award dated 05.02.2016 passed in MVC No.671/2015 by the Motor Accident Claims Tribunal, Bengaluru (SCCH-14) (hereinafter referred to as the 'Tribunal' for short).

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Heard Sri.Rangegowda.N.R, learned counsel for the appellant and Sri.F.S.Dabali, learned counsel for the respondent.

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Learned counsel for the appellant submits that the Tribunal has committed grave error in recording the finding with regard to the contributory negligence without there being any evidence on record. It is submitted that the income as well as the disability of the injured are assessed on lower side and award of compensation on all other heads is also required to be re-assessed appropriately taking into consideration oral and

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HC-KAR

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documentary evidence on record. Hence, he seeks to allow

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the appeal.

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Per contra, Sri.F.S.Dabali, learned counsel

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appearing for the Corporation supports the impugned judgment and award of the Tribunal and submits that the Tribunal has clearly recorded the finding that the injured has committed gross negligence. He made an attempt to get down from the moving bus which resulted in injury. He ought to have requested the conductor to stop the bus and his attempt to jump from the bus has caused injury to him and the said aspect is rightly considered by the Tribunal and recorded the finding with regard to the contributory negligence. It is submitted that award of compensation by the Tribunal by assessing the disability at 15% as per the

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oral and documentary evidence is just and fair and the same does not call for any enhancement. Hence, he seeks to dismiss the appeal.

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NC: 2026:KHC:21027 MFA No. 3598 of 2018

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HC-KAR

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I have heard the arguments of learned counsel

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for the appellant, learned counsel for the respondent and

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meticulously perused the material available on record.

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The records indicate that the appellant met with a road accident on 12.12.2014 when he was getting down from the bus owned by the respondent - Corporation at Silk Board bus stop, Bangalore. The oral and documentary evidence on record indicate that the appellant sustained fracture of shaft of right tibia, fracture of both bones of right leg, fracture superior and inferior pubic rami and perineal injury. The injured was hospitalised at Primus Hospital from 12.12.2014 to 20.12.2014 and later he was shifted to St.John's Hospital, Bangalore on 20.12.2014 and

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he was discharged and then again he was shifted to Victoria Hospital on 21.12.2014, in all he took treatment as inpatient for a period of 20 days. It is averred that the injured was a Groundnut vendor in the bus stop and used to earn Rs.10,000/- per month. Admittedly no evidence is placed before the Tribunal with regard to the income.

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HC-KAR

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Hence, his income is notionally re-assessed at Rs.8,500/-.

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Insofar as the injury suffered, claimant examined PW.2Dr. Nagaraj, who has deposed disability to a particular limb at 54%. However, it is to be noticed that the disability certificate i.e., Ex.P12-Clinical notes and the discharge summary indicate that the total disability to whole body would be 15% and the Tribunal has rightly considered the same. Insofar as award of compensation on other heads is concerned, the same is required to be modified appropriately by considering the oral as well as documentary evidence. Accordingly, the same is reassessed as under.

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Sl. No	Description	Amount
1	Pain and sufferings	Rs.75,000
2	Medical expenses	Rs.50,000
3	Nourishment, conveyance and attendant charges	Rs.25,000
4	Loss of income during laid up period (Rs.8,500X4)	Rs.34,000

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HC-KAR

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5	Loss of future income (Rs.8,500X12X18X15%)	Rs.2,75,400
6	Loss of amenities	Rs.50,000
7	Future medical expenses	Rs.40,000
	Total	Rs.5,49,400

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Insofar as contributory negligence is concerned,

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admittedly, jurisdictional Police after investigation filed charge sheet against the driver of the Corporation-Bus for

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his negligent act. It is to be noticed that the respondent has examined RW.1 who is a driver of the Corporation and he is not the eye witness to the incident. Hence, his evidence cannot be fairly relied insofar as contributory negligence is concerned.

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It is to be noticed that the Tribunal taking note of the observations made in the charge sheet and other evidence on record has come to a conclusion that the injured has made an attempt to get down from the bus when bus was moving with a basket in one hand and cash

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in another hand. The chronology of event indicate that the

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HC-KAR

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injured ought to have waited the bus to stop or made a request to the conductor to stop the bus so that he would have get down from the bus. In the absence of such duty and care, I am of the considered view that the finding by the Tribunal with regard to the contributory negligence is correct. However, not at 50% on the injured, but the same is modified to the extent of 20% by considering the evidence on record.

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For the aforementioned reasons, I proceed to

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pass the following order:

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ORDER

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(i) Appeal is allowed in part .

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(ii) The impugned judgment and award of the Tribunal is modified.

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(iii) Appellant would be entitled to total compensation of Rs.4,39,520/- i.e., 80% of Rs.5,49,400/-.

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(iv) The enhanced compensation amount shall carry interest at the rate of 6% p.a. from

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NC: 2026:KHC:21027 MFA No. 3598 of 2018

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HC-KAR

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the date of petition till the date of deposit except for the period of delay of 720 days as per orders in IA No.1/2018.

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(v) Respondent - Corporation is directed to deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of 6(six) weeks from the date of receipt of certified copy of this judgment.

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(vi) Insofar as deposit and release of compensation is concerned, the award of the Tribunal is unaltered.

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(vii) The Registry is directed to transmit the records back to the Tribunal.

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(viii) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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NS CT:BR List No.: 1 Sl No.: 1

Ramu a v. the Managing Director

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Ramu a v. the Managing Director

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