IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.4903/2015 (MV-I) C/W MISCELLANEOUS FIRST APPEAL No.4942/2015 IN M.F.A.No.4903/2015 BETWEEN:
Bhaskar V., S/o Vasanthappa, Aged 31 years, R/o No.23/32, Hebbagodi, Chandapura Circle, Hebbagodi, Anekal Taluk, Bangalore Urban District – 560 099.
...Appellant (By Sri. H.K.Basavaraj, Advocate) AND:
The Chairman & Managing Director, KSRTC, Double Road, Shanthinagar, Bangalore – 560 027.
….Respondent (By Sri. K. Nagaraja, Advocate) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 20.03.2015 passed in MVC No.458/2014 on the file of the XVI Additional Judge, Court of Small Causes, Member, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.No.4942/2015 BETWEEN:
The Chairman & Managing Director, KSRTC, Double Road, Shanthinagar, Bangalore – 560 027.
...Appellant (By Sri. K. Nagaraja, Advocate) AND:
Bhaskar V., S/o Vasanthappa, Aged about 31 years, R/o No.23/32, Hebbagodi, Chandapura Circle, Hebbagodi, Anekal Taluk, Bangalore Urban District – 560 099.
….Respondent (By Sri. H.K.Basavaraj, Advocate) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 20.03.2015 passed in MVC No.458/2014 on the file of the XVI Additional Judge, Court of Small Causes, Member, MACT, Bangalore, awarding compensation of Rs.12,28,000/- with interest @ 9% p.a. from the date of petition till the date of payment.
These Miscellaneous First Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T The claimant is in appeal praying for enhancement of compensation, not being satisfied by the quantum of compensation awarded in MVC No.458/2014 dated 20.03.2015 on the file of XVI Additional Judge, Court of Small Causes, Member, MACT, Bengaluru under Section 173(1) of the Motor Vehicles Act.
2. Claim petition was filed under Section 166 of Motor Vehicles Act, claiming compensation for the injury sustained in a motor vehicle accident. It is stated that on 17.01.2014 when the claimant was proceeding in Hero Honda Passion Motorcycle bearing registration No.KA-51-S-5048 from Doddaballapura towards Yelahanka, when he came near Rajanukunte the driver of KSRTC Bus bearing registration No.KA-40-F-726 came from backside being driven in rash and negligent manner on extreme left side of the road dashed to the motorcycle of the claimant. Due to which the claimant fell down and sustained grievous injuries. He was immediately taken to Sree Saiprasad Multispeciality Hospital, Yelahanka New Town. After the first aid, he was shifted to Hosmat Hospital, Bengaluru. He was admitted as an inpatient and was on observation from 17.01.2014 to 25.01.2014. Claimant underwent surgeries with implants. It is stated that he was working in Sensera Company, Bengaluru earning a salary of Rs.19,919/- to 22.742/- The claimant suffered Type-II fracture of both the bones of right leg with lateral aspect and other injuries all over the body.
3. On issuance of notice the respondent- Corporation appeared before the Court and filed its written statement by denying the petition averments. It is also stated that KSRTC bus was not involved in the accident and the allegation of the claimant is baseless. Further it is stated that the accident occurred due to the negligence on the part of the rider of the motorcycle. Further it is stated that the Tata Ace vehicle had caused accident and the KSRTC bus never hit the said Hero Honda Motor Cycle. There is no negligence on the part of the driver of the bus.
4. Claimant in support of his case examined himself as PW1 and examined PW2-Dr. Krishna Prasad apart from marking Exs.P1 to P17. Respondent examined RW1.
5. Tribunal, based on the material placed on record, awarded a compensation of Rs.12,28,000/- (Rupees Twelve Lakh Twenty Eight Thousand Only) with interest at the rate of 9% p.a. from the date of petition till its realization as follows;
6. Tribunal while awarding the above compensation, awarded an amount of Rs.8,11,000/- (Rupees Eight Lakhs Eleven Thousand Only) under the head Medical expenses. The Insurer aggrieved by the excess compensation under the said head and also the rate of interest at 9% p.a., is before this Court in MFA No.4942 of 2015. The claimant not being satisfied with the compensation awarded by the Tribunal is before this Court in MFA No.4903 of 2015 praying for enhancement of compensation.
7. Heard the learned counsel for the appellant- claimant and the learned counsel for respondent – Corporation and perused the appeal papers including lower Court records.
8. Learned counsel for the respondent - Corporation would submit that Tribunal committed an error in awarding Rs. 8,11,000/- (Rupees Eight Lakh Eleven Thousand Only) under the head Medical expenses when the claimant himself has claimed Rs.3,21,000/- (Rupees Three Lakh Twenty One Thousand Only). It is further submitted that the claimant has produced medical bills etc., amounting to Rs.3,10,861/- (Rupees Three Lakhs Ten Thousand Eight Hundred and Sixty One Only). The claimant got reimbursed Rs.2,14,875/-(Rupees Two Lakhs Fourteen Thousand Eight Hundred and Seventy Five Only) and claimant would be entitled for a balance of Rs.95,986/- (Rupees Ninety Five Thousand Nine Hundred and Eighty Six Only) under the said head. Further he submits that the Tribunal committed an error by awarding interest at the rate of 9% p.a instead of 6% p.a. Thus he prays for allowing the appeal on these two grounds.
9. Per contra, learned counsel for the claimant would submit that the compensation awarded by the Tribunal is on lower side and prays for enhancement of the same. He submits that claimant would be entitled for the compensation on the head loss of income due to disability as the Doctor has opined that the claimant suffered 56% of disability to his right lower limb which would be at 19% to the whole body. Tribunal failed to assess the whole body disability. He submits that looking to the injuries sustained and disability, Tribunal ought to have awarded compensation on the said head. It is his further submission that the compensation awarded on the other heads are on the lower side and prays for enhancement of compensation.
10. Having heard the learned counsel for the parties and on perusal of the material on record, following points would arise for consideration, in the facts and circumstances of the present case;
“(i) Whether the Tribunal is justified in awarding medical expenses to an extent of Rs.8,11,000/- ?
(ii) Whether Tribunal is justified in not assessing the whole body disability for awarding the compensation on the head of loss of future earning capacity due to disability?”
The answer for the above points would be in the ‘negative’ for the following reasons;
11. The accident that took place on 17.01.2014 involving Motor Cycle bearing Reg.No.KA-51-S-5048 and KSRTC Bus bearing registration No. KA-40-F-726 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant is in appeal praying for enhancement of compensation whereas, the corporation is in appeal on the ground that the Tribunal awarded excess compensation. The claimant has placed on record Ex.P12 -deposit receipts, P13 –prescriptions, P14-Medical Bills amounting to Rs.3,10,861/- is placed on record. But the Tribunal has erroneously without assigning any reason awarded Rs.8,11,000/- on the head of medical expenses. It is not known on what basis the Tribunal awarded a sum of Rs.8,11,000/- on the head Medical expenses, when the medical bills placed on record Ex.-P14 was to an extent of Rs.3,10,861/-. Hence, it is liable to be set aside. Learned counsel for the appellant/claimant would fairly submits that the claimant has received Rs.2,14,875/- from Mediclaim Insurance. In that view of the matter, only Rs.95,986/- remains for which the claimant would be entitled to. Thus, I am of the view that the claimant would be entitled for a sum of Rs.95,986/- under the medical bills instead of Rs.8,11,000/- awarded by the Tribunal.
12. The claimant has placed on record Ex.P4 – wound certificate. Claimant has sustained type-II fracture of both the bones of right leg with lateral aspect and other injuries all over the body, who was inpatient from 17.01.2014 to 25.01.2014 for treatment. He underwent surgeries with external and internal fixation. PW2 –Doctor in his evidence deposes that the claimant suffers from 56% disability to his right lower limb and 19% to the whole body. However, he states that fracture is united. PW1-claimant has admitted in his cross examination that he continues in the same job with the same designation. There was no loss of income or demotion in the designation of the claimant. Hence, Tribunal is justified in not awarding compensation on the head of loss of future income due to disability.
13. The Tribunal awarded interest at the rate of 9% p.a. from the date of petition till realization. But the claimant would be entitled for only 6% p.a. from the date of petition till realization. This Court and the Hon’ble Apex Court in catena of decisions has held that Section 34 of CPC provides rate of interest at 6% p.a. and the same would be applicable to compensation awarded under Motor Vehicle accident cases. This Court in the case of VIJAY ESHWAR JADHAV AND OTHERS V. ULRICH BELCHIOR FERNANDES AND ANOTHER reported in 2018 (3) AKR 690 at para 14 and 15 has held as follows:-
“14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub-sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted n 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.”
14. Hence, I modify the award of interest awarded by the Tribunal at 9% and it is held that the claimant would be entitled for 6% interest p.a. from the date of petition till realization. Hence, the claimant would be entitled for the modified compensation as follows:
15. The claimant would be entitled to Rs.5,12,986/- (Rupees Five Lakh Twelve Thousand Nine Hundred and Eighty Six Only) with interest at the rate of 6% per annum till realization as against Rs.12,28,000/- awarded by the Tribunal. Thus the compensation is reduced by Rs.7,15,032/-.
The judgment and award dated 20.03.2015 passed in MVC No.458/2014 is modified to the above extent. Appeal of the corporation in MFA No.4942/2015 is allowed in part. Appeal of the claimant in MFA No.4903/2015 is dismissed.
Amount in deposit in MFA No.4942/2015 be transmitted to the concerned Tribunal.
Sd/- JUDGE BVK