Sri Ramesh Vs the Managing Director

SRI. RAMESH, S/O BASAVARAJU, AGED ABOUT 34 YEARS, R/AT NO.5507, PATEL CHANNAPPA EXTENSION, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT. (BY SRI. RAGHU R., AMICUS CURIAE) AND:

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&APPELLANT

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

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&RESPONDENT (BY SRI. D. VIJAYAKUMAR, ADVOCATE) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05/05/2018, PASSED IN MVC NO.5989/2017, ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX ACMM & MEMBER, MACT, (SCCH-24), BENGALURU, 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: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2026:KHC:14160 MFA No. 6935 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

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seeking for higher compensation challenging the judgment and award dated 05.05.2018 passed in MVC.No.5989/2017 by XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate & MACT, Bengaluru (SCCH-24) (hereinafter referred to as the 'Tribunal' for short).

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Though, this appeal is listed for orders, with the consent of learned counsel for the parties, it is taken up for final disposal.

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Sri R.Raghu, learned Amicus Curiae submits that the Tribunal has committed a grave error in assessing the income of the injured at Rs.9,000/- per month by ignoring the fact that injured was a tailor by avocation and earning more than Rs.15,000/- per month. It is submitted that the Tribunal has further erred in recording the finding that the appellant/injured has contributed to the accident to the extent of 20% by ignoring the charge sheet material. It is

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HC-KAR

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further submitted that the award of compensation by the Tribunal on all other heads is also on lower side. Hence, he seeks to enhance the compensation by allowing the appeal.

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Sri D.Vijaykumar, learned counsel appearing for the respondent-Corporation supports the impugned judgment and award of the Tribunal and submits that the appellant has failed to produce any proof of income. Hence, his income was assessed at Rs.9,000/- p.m. It is submitted that P.W.2-Doctor without any proper reasons has come to a conclusion that the appellant has sustained disability to the extent of 13% to the whole body. It is further submitted that the assessment of disability by the Tribunal is correct and it does not call for any interference. Hence, he seeks to dismiss the appeal.

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I heard the arguments of the learned Amicus Curiae appearing in the matter, learned counsel for the respondent-Corporation and meticulously perused the material on record.

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HC-KAR

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The only point that would arise for consideration in

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this appeal is:

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" Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

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The above point is answered in affirmative for the following reasons:

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The material on record indicates that the appellant met with a road accident on 17.08.2017 and sustained grievous injuries all over the body. He was provided treatment at V.P.Magnus Hospital, Nelamangala and he was treated as an inpatient for a period of 8 days. In order to prove the claim for compensation, the appellant examined himself as P.W.1 and also examined Dr.Srinivas H., as P.W.2 and got marked Ex.P1 to Ex.P.19. The Corporation examined R.W.1 Sri Sanjeev Kumar driver of the bus.

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After assessing the evidence, the Tribunal has awarded total compensation of Rs.2,15,040/- along with interest at the rate of 8% p.a., by recording the finding

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HC-KAR

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that the appellant injured has contributed to the accident to an extent of 20%. It is to be noticed that insofar as a finding with regard to contributory negligence, the Tribunal after considering the oral evidence as well as the charge sheet material has recorded the clear finding that the appellant/claimant in order to rush to his work drove the motor cycle on a one way in an opposite direction which resulted in the accident and saddled the contributory negligence to an extent of 20%. I do not find any error in the said finding of the Tribunal.

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Insofar as the quantum of compensation is concerned, the appellant has claimed that he was earning Rs.15,000/- per month from his avocation of tailoring. However, no proof of income was placed before the Tribunal. Hence, his income is notionally reassessed at Rs.11,000/- per month.

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Insofar as injuries are concerned, as it is evident from Ex.P.5, the appellant sustained the following injuries:

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NC: 2026:KHC:14160 MFA No. 6935 of 2018

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HC-KAR

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Posterior dislocation of right hip joint.

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2. Displaced fracture posterior margin of right acetabulum.

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3. Acute subdural hematoma over left frontal lobe of brain.

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4. Small subarachnoid hemorrhages in bilateral frontal lobes.

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5. Skull bone fractures

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The perusal of oral testimony of P.W.2, wound

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certificate at Ex.P.5, discharge summary at Ex.P.7 and other medical records, I am of the considered view that the assessment of disability is required to be reassessed at 10%. It is to be noticed that the appellant was aged about 36 years at the time of accident and appropriate multiplier would be <15=.

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Having reassessed the income and disability,

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the compensation under some of the heads are required to

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be reassessed as under:

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Sl.No.	Description	Amount
1	Pain and suffering	Rs.50,000/-
2	Medical expenses	Rs.70,807/-
3	Attendant charges, food, extra nourishment, conveyance charges etc.,	Rs.25,000/-
4	Loss of income during laid up period	Rs.33,000/-
	Rs.11,000/-x3 months
5	Loss of future earning	Rs.1,98,000/-

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HC-KAR

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	capacity due to disability
	Rs.11,000/-x12x15x10%
6	Loss of amenities of life	Rs.30,000/-
	Total	Rs.4,06,807/-

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13. In the result, the Court proceeds to pass the

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following:

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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 to an extent that the total compensation is reassessed at Rs.4,06,807/-, out of the said amount, the appellant is entitled to 80% of the said amount i.e., Rs.3,25,446/as against Rs.2,15,040/- awarded by the Tribunal along with interest at the rate of 6% p.a., from the date of petition till realization.

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(iii) The respondent-Corporation shall deposit 80% of the compensation amount (i.e., Rs.3,25,446/-) within a period of 6(six) weeks from the date of receipt of certified copy of this judgment.

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NC: 2026:KHC:14160 MFA No. 6935 of 2018

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HC-KAR

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(iv) The disbursement of the compensation and deposit shall be as per the Tribunal.

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(v) Draw modified award accordingly.

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(vi) This Court appreciates to the assistance rendered by Raghu R., learned Amicus Curiae. Fee of Rs.10,000/- to be paid to the learned Amicus Curiae.

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(vii) Registry shall communicate the certified copy of this order to the claimant.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PB

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List No.: 1 Sl No.: 9

Sri Ramesh v. the Managing Director

Case brief

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Sri Ramesh v. the Managing Director

Case brief

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