IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA.NO.604/2016 (MV-I) C/W MFA.NO.1790/2016 (MV-I) IN MFA NO.604/2016 BETWEEN:
THE MANAGING DIRECTOR BANGALORE METROPOLITAN TRANSPORT CORPORATION, CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BANGALORE-560027 (BY SRI.D VIJAYA KUMAR, ADVOCATE) AND:
SRI THOTADA NEELAKANTESHWARA S/O LATE T.M.NANJUNDAPPA AGED ABOUT 58 YEARS NO.18, 1ST MAIN, 1ST B CROSS, CHIKKABOMMASANDRA, ...APPELLANT YELAHANKA NEW TOWN, BANGALORE-560 065 …RESPONDENT (BY SRI.K.SHANTHARAJ, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.09.2015 PASSED IN MVC NO.449/13 ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, AWARDING COMPENSATION OF RS.31,06,240/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.1790/2016 BETWEEN:
THOTADA NEELAKANTESHWARA S/O LATE T.M.NANJUNDAPPA AGED ABOUT 56 YEARS, NO:18, 1ST MAIN, 1ST B CROSS CHIKKA BOMMASANDRA YELAHANKA NEW TOWN BANGALORE-560065 …APPELLANT (BY SRI.K.SHANTHARAJ, ADVOCATE) AND:
THE MANAGING DIRECTOR BMTC, DOUBLE ROAD, SHANTHI NAGAR BANGALORE …RESPONDENT (BY SRI.D.VIJAYAKUMAR, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.09.2015 PASSED IN MVC NO.449/13 ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The Bangalore Metropolitan Transport Corporation (‘Corporation’ for short) has preferred appeal in MFA.No.604/2016 questioning the quantum and also negligence on the part of claimant in causing the accident. Whereas claimant has preferred appeal in MFA No.1790/2016 seeking enhancement of compensation awarded in MVC.No.449/2013 by the Motor Accident Claims Tribunal, Bengaluru.
2. The brief facts leading to these two appeals are as under:
On 01.08.2012 at about 9.30 p.m., when the claimant was a pedestrian and was proceeding to reach the bus bearing Reg.No.KA-01-FA-1796 at NES bus stop on DB Pura Road near Yelahanka, Bengaluru, at that juncture, the driver of the offending bus owned by the Corporation started and moved the bus without ascertaining as to whether all the passengers boarded the bus and on account of rash and negligent act by the driver of the bus, the claimant fell down and the front left wheels of the said bus ran over both legs of claimant resulting in grievous injuries to him. Hence, he filed claim petition seeking compensation in a sum of Rs.50,00,000/-.
3. The Corporation on receipt of notice by the Tribunal, appeared and filed written statement. Wherein, the respondent Corporation stoutly denied all the averments in the claim petition and specifically disputed the accident, so also disputed the age, income, avocation and expenses and as such, prayed for rejection of the application with costs.
4. Based on the rival contentions, the Tribunal formulated the following issues:
“1) Whether the petitioner proves that he has sustained injuries in an accident occurred on 01.08.2012 at about 9.30 p.m., near NES bus stop, DB Pura road, near Yelahanka, due to the rash and negligent driving of the driver of the BMTC bus bearing registration No.KA- 01-FA-1796 as alleged in the petition?
2) Whether the petitioner is entitled for compensation? If so, what is the quantum? From whom payable?
3) What order or award?”
5. Thereafter, the evidence was recorded in the said proceedings where claimant was examined as PW.1, he also examined a Doctor as PW.2 and another independent witness as PW.3 in support of his claim. In the said petition, he relied upon twenty six documents which were produced and marked as Exhibits.P1 to P26 in support of his claim. By way of rebuttal evidence, the Corporation examined its driver as RW.1. However, no documentary evidence was produced in support of the defence. The Tribunal, on appreciation of the pleadings, oral and documentary evidence as referred to supra, proceeded to allow the claim petition, awarding compensation to the claimant, in a sum of Rs.31,06,240/- payable with interest at 6% per annum from the date of the petition till the date of payment of the said amount, wherein the compensation awarded towards ‘pain and suffering’ was Rs.80,000/-, ‘loss of amenities and happiness’ was assessed at Rs.2,16,722/-. However, when it comes to ‘loss of future income’, the same is awarded at Rs.21,67,228/-, loss of income during laid up period is considered at Rs.61,569/-. Besides, the Tribunal has also awarded ‘medical expenses’ at Rs.5,30,721/- as per bills and ‘attendant, conveyance, food and nourishment charges’ at Rs.50,000/-.
6. The said Judgment is under challenge, both by the claimant as well as the Corporation by filing two separate appeals. In the appeal filed by the claimant, his grievance is that the compensation awarded under the head ‘pain and suffering’ and as well as ‘loss of amenities and happiness’ are on lower side. When it comes to loss of future income, loss of future prospects are not considered. In sum and substance, he is unhappy about compensation awarded and seeks enhancement of the same.
7. Whereas the Corporation in its appeal, would contend that the claimant, an employee of Commercial Tax Department working as ‘Second Division Assistant’, was aged about 55 years and was left with five years of service. In the normal circumstances, he would have retired in five years and as such, there is no loss of income to him. It is also contended that the injury suffered by the claimant is confined to lower limb which has resulted in amputation of his legs. Though the said injury is grievous in nature, the same would not come in the way of discharging his duty as ‘Second Division Assistant’ which mainly involved his work being confined to table and chair. Therefore, the question of assessing ‘loss of future income’ would not arise. So far as observation made by the Tribunal that the claimant has resigned from his job due to the injuries suffered in the accident is stoutly denied. According to the appellant/BMTC, the records would indicate Lokayukta proceedings being initiated and pending against the claimant at the relevant time. According to appellant, the resignation of claimant is in the background of aforesaid Lokayukta inquiry and not because of the injuries suffered in the accident. Therefore, loss of future income assessed and loss of income during laid up period awarded is without any basis and the same is required to be modified.
8. Though these appeals are at the stage of orders, since entire trial Court records are received, the same are taken up for final disposal in the presence of learned Counsel appearing for the appellant in both the appeals who are respectively claimant and respondent before the Tribunal.
9. Heard the learned Counsel appearing for both the parties.
10. On appreciation of pleadings, oral and documentary evidence made available before the Tribunal, the grounds of appeal raised in both the appeals and also finding in the Judgment impugned, it is clearly seen that the accident dated 1.8.2012 involving bus bearing registration No.KA-01-FA-1796 belonging to BMTC is an unfortunate incident. It is further true that the claimant has suffered grievous injuries to his lower limbs which has resulted in amputation of his legs. Though the aforesaid accident and resultant amputation is not in dispute, the manner in which the same is considered for assessment of compensation appears to be erroneous.
11. The records would indicate that the claimant was an employee of Commercial Tax Department and was aged about fifty five years as on the date of the accident and was working as ‘Second Division Assistant’ in the said Department. It is also seen that he was facing inquiry from the Lokayukta with reference to misconduct connected to his employment. In this background, when the injuries suffered by the claimant and its aftermath is seen, medical records would clearly indicate that the amputation injuries are completely healed and the same would not come in the way of discharging his duty as ‘Second Division Assistant’ which is involving job by sitting at one place and being confined to table and chair work. Therefore, to say that the accident has come in the way of he discharging his duties as he was doing earlier to the accident is unacceptable. In any event, if the claimant has submitted resignation, it could only be attributable to the inquiry which was pending against him before the Lokayukta and not due to the injuries suffered in the accident.
12. In this background, when the compensation awarded is re-appreciated, this Court is of the considered opinion that the claimant is justified in challenging the Award so far as compensation awarded for ‘pain and suffering’ which is a meager sum of Rs.80,000/-. Similarly, compensation awarded towards ‘loss of amenities and happiness’ which is quantified at Rs.2,16,722/-. This Court is unable to understand as to the manner in which the compensation amount is assessed. As discussed supra, since this Court is of the opinion that the accident has not come in the way of his employment and consequent retirement, to consider loss of future income to the claimant is without any basis. There is no evidence to prove that there was loss of salary during the said period. Therefore, as rightly contended by the respondent-Corporation in its appeal, the compensation awarded under the heads ‘loss of future income’ and ‘loss of income during laid up period’ is without any basis. Therefore, this Court, keeping in mind the aforesaid error committed by the Tribunal, would reassess the compensation as under.
13. Therefore, in the fact situation, this Court would award a sum of Rs.2,00,000/- under the head ‘pain and suffering’. In addition to that, another sum of Rs.10,00,000/- towards ‘loss of amenities’ which not only includes ‘loss of amenities and happiness’, but also as substitute to ‘loss of future income and loss of income during the laid up period’ which was considered by the Tribunal, in as much as, the compensation awarded by the Tribunal under the aforesaid two heads does not arise for consideration in the light of discussions referred to supra. While doing so, this Court would retain award of Rs.5,30,721/- by the Tribunal under the head ‘reimbursement of medical expenses’ for the reason that documents furnished before the Tribunal clearly indicate that the claimant has not received reimbursement of medical expenses incurred from his employer. In addition to that, the claimant is also entitled to compensation in a sum of Rs.50,000/- towards attendant, conveyance, food and nourishment charges which was considered by the Tribunal for the same amount.
14. By allowing both the appeals filed by the claimant as well as respondent-Corporation, compensation awarded by the Tribunal is reassessed as supra would be as under:
Sl.
No.
Heads Amt. in Rs.
1. Pain and suffering 2,00,000 2. Loss of amenities and happiness and loss of future income and loss of income during the laid up period 10,00,000 3. Medical expenses 5,30,721 4. Attendant, conveyance, food and nourishment charges 50,000 Total 17,80,721 Accordingly, the claimant would be entitled to receive compensation in a sum of Rs.17,80,721/- as referred to supra as against Rs.31,06,240/- awarded by the Tribunal. It is made clear that the revised compensation amount shall carry interest at 6% per annum which the claimant shall be entitled to receive, by refunding the excess amount if any, to the Corporation.
15. If the aforesaid amount is already deposited by the Corporation before the Tribunal, the same shall be released in favour of the claimant/appellant in MFA No.1790/2016. If not, the Corporation which is appellant in MFA No.604/2016 shall make sure that the entire revised compensation with interest is deposited before the Tribunal within six weeks from the date of receipt of certified copy of this order.
Accordingly, both the appeals are allowed in part.
Sd/- JUDGE Sd/- JUDGE CA, AN/-