IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.277/2019 C/W MISCELLANEOUS FIRST APPEAL NO.1104/2019 IN MFA.NO.277/2019 BETWEEN:
THE MANAGING DIRECTOR B.M.T.C. DEPOT, K.H.ROAD SHANTHINAGAR BANGALORE – 560 027 (RC OWNER OF B.M.T.C. BUS BEARING REG.NO.KA-01-FA-1706) REPRESENTED BY ITS CHIEF LAW OFFICER ...APPELLANT (BY SRI F.S.DABALI, ADVOCATE) AND:
SYED MUKTHIYAR PASHA S/O. SYED GAFFER AGED ABOUT 36 YEARS RESIDING AT NO.280 ‘D’ BLOCK, BEEDI COLONY KENGERI UPANAGARA BANGALORE – 560 060 ...RESPONDENT (BY SRI B.ROOPESHA, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO MODIFY/SET AISE THE JUDGMENT AND AWARD DATED 15.09.2018 PASSED BY THE COURT OF XXI ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU IN MVC.NO.7274/2017.
IN MFA.NO.1104/2019 BETWEEN:
SRI SYED MUKTHIYAR PASHA S/O. SYED GAFFER AGED AOBUT 36 YEARS RESIDING AT NO.280 ‘D’ BLOCK, BEEDI COLONY KENGERI UPANAGARA BANGALORE – 560 060 ...APPELLANT (BY SRI B.ROOPESHA, ADVOCATE) AND:
THE MANAGING DIRECTOR B.M.T.C. DEPOT K.H.ROAD, SHANTHINAGAR BANGALORE – 560 027 (RC OWNER OF B.M.T.C. BUS BEARING REG.NO.KA-01-FA-1706) ...RESPONDENT (BY SRI F.S.DABALI, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 15.09.2018 PASSED BY THE COURT OF XXI ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU IN MVC.NO.7274/2017.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though the matters are listed for orders, with the consent of the learned counsel for both the parties, these appeals are taken up for final disposal.
2. These appeals are directed against the same judgment and award dated 15.09.2018 passed by XXI Additional SCJ & XIX ACMM, Member-Motor Accidents Claims Tribunal, Bengaluru in MVC.No.7274/2017.
3. The appeal in MFA.No.277/2019 preferred by the BMTC is challenging the liability, whereas the appeal in MFA.No.1104/2019 preferred by the claimant is for enhancement of compensation awarded by the Tribunal.
4. Brief facts leading to filing of these two appeals as per the claim petition are as under:
That on 15.11.2017 at about 9.00 p.m., on Dr.Vishnuvardhan Road in front of HDFC Bank, Bengaluru, the driver of BMTC bus bearing registration No.KA-01-FA-1709 was driving the same in a rash and negligent manner and dashed against the hind side of a two wheeler of the petitioner bearing registration No.KA- 02-JK-0027. As a result of which, the petitioner fell down along with his vehicle and the wheels of the said BMTC bus ran over on the left hand of the petitioner and he has sustained grievous injuries. Thereafter, he underwent surgery and his left hand was amputed. He was working as a Logistic Incharge in Hyndai Saphire Motors Pvt. Ltd., on a monthly earnings of Rs.20,000/-
p.m. Due to amputation and other injuries, the petitioner has become disable to carry out his employment. He filed claim petition claiming compensation of Rs.50.00 Lakhs.
5. The BMTC resisted the claim of the petitioner.
The learned Member considering the accident, injury and negligence, awarded the compensation of Rs.6,63,848/- with interest at 6% p.a. from the date of the petition till deposit, which is challenged both by the BMTC and the petitioner.
6. Sri F.S.Dabali, learned counsel appearing for the BMTC in both the cases submits that there was no negligence on the part of the bus driver and the injured did not follow traffic rules and due to his negligence, the accident was occurred.
7. Per contra, Sri B.Roopesh, learned counsel appearing for the claimant in both the cases submits that though force and rashness in driving establish the negligence, the effect has been so rigorous and harsh on the petitioner and his family and the left hand of the petitioner was amputed.
8. The Tribunal has awarded the compensation as
9. The Tribunal has considered the monthly income of the petitioner at Rs.9,942/-. Ex.P11 includes two pay slips. The learned counsel for the petitioner submits that the income is mentioned as Rs.16,569/- per month. However, it is the gross salary for the months of March and April, 2017 and the accident took place in the month of November, 2017. In the circumstances, I find that the monthly income considered by the Tribunal is on the lower side and the percentage of disability considered is unreasonable and also the compensation awarded under some of the heads needs to be enhanced.
10. The disability has to be reckoned with reference to the injury sustained by the petitioner. Taking into consideration the income of the claimant at Rs.12,000/-, the disability at 40% and the multiplier of ‘16’, the loss of future earning would come to Rs.9,21,600/- (Rs.12,000/- x 40% = Rs.4,800/- p.m. x 12 = Rs.57,600/- x 16 = Rs.9,21,600/-) instead of Rs.4,77,216/-. The compensation awarded under the head of ‘pain and suffering’ is enhanced from Rs.75,000/- to 1,50,000/- and the ‘loss of amenities’ is enhanced from Rs.50,000/- to Rs.1,00,000/-. However, the learned Member of the Tribunal is justified in fastening liability on the BMTC and it does not call for interference.
In the result, the compensation awarded by the Tribunal is enhanced by Rs.5,69,384/- together with interest at 6% p.a. The appeal in MFA.No.277/2019 preferred by the BMTC is dismissed and the appeal in MFA.No.1104/2019 preferred by the claimant is partly allowed and the compensation awarded by the Tribunal is enhanced from Rs.6,63,848/- to Rs.12,33,232/- (enhancement would be Rs.5,69,384/-).
To the above extent, the judgment and award dated 15.09.2018 passed by XXI Additional SCJ & XIX ACMM, Member-Motor Accidents Claims Tribunal, Bengaluru in MVC.No.7274/2017 is modified.
The BMTC is directed to pay the award amount together with interest including enhanced compensation within a period of eight weeks.
The amount in deposit be transmitted to the Tribunal.
Sd/- JUDGE LB