IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.2278/2019 C/W M.F.A.No.1063/2019(MV) IN MFA No.2278/2019 BETWEEN:
THE MANAGING DIRECTOR BMTC CENTRAL OFFICE, SHANTINAGAR BANGALORE-560 027.
(BY SRI D VIJAYAKUMAR, ADVOCATE) AND:
SMT. YASHODHAMMA W/O R RAJU AGED ABOUT 41 YEARS, (D/O MALLAPPA) R/AT: HARAGAGGE JIGANI, ANEKAL TALUK BANGALORE-560 105.
(BY SRI JAGADISH KUMBAR, FOR SRI A SREENIVASAIAH, ADVOCATE) ...APPELLANT …RESPONDENT THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.08.2018 PASSED IN MVC No.5713/2017 ON THE FILE OF THE VII ADDITIONAL SCJ & XXXII ACMM AND MEMBER, MACT-3, BENGALURU, AWARDING COMPENSATION OF Rs.4,12,675/- WITH INTEREST @ 8% P.A.FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA No.1063/2019 BETWEEN:
SMT. YASHODHAMMA W/O R RAJU AGED ABOUT 41 YEARS, RESIDING AT HARAGADDE, JIGANI, ANEKAL TALUK BANGALORE-560 105. ...APPELLANT (BY SRI JAGADISH KUMBAR, FOR SRI A SREENIVASAIAH, ADVOCATE) AND:
THE MANAGING DIRECTOR B.M.T.C. , K.H. ROAD SHANTHINAGAR BANGALORE – 560 027 …RESPONDENT (BY SRI D VIJAYAKUMAR, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWRD DATED:25.08.2018 PASSED IN MVC No.5713/2017 ON THE FILE OF THE VII ADDITIONAL SCJ & XXXII ACMM AND MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSAION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT In both the appeals, I.A.No.1/2019 are filed for condoning delay of 80 and 48 days in filing the appeals. Considering the facts and circumstances of the case, delay is condoned. I.A.No.1/2019 in both the appeals are allowed. With the consent of learned counsel for both sides, the matters are taken up for final disposal.
2. These two appeals are directed against the Judgment and decree dated 5713/2017 passed in MVC No.5713/2017 by the learned VII Additional SCJ & XXXII ACMM, Member, MACT-3, Bengaluru, wherein the claim petition came to be allowed in part and an amount of Rs.4,12,675/- came to be awarded together with interest at the rate of 8% p.a. from the date of the petition till the date of deposit.
3. M.F.A.No.2278/2019 is filed by the Corporation seeking to set aside the judgment and award and M.F.A.No.1063/2019 is filed by the claimant seeking enhancement of compensation.
4. In order to avoid confusion and overlapping, the parties hereinafter are referred to with their rankings as held by them before the tribunal.
5. The case pertains to a road traffic accident dated 23.08.2017. It is stated that on the said date at about 9.45 a.m. when the petitioner was proceeding as a pillion rider on the motorcycle bearing registration No.KA-51-Y-6478 when they reached a place in front of Venkateswara Hospital, NH-7 Service road Bengaluru, at that time, BMTC bus bearing registration No.KA-01- F-9480 was driven in a rash and negligent manner, by its driver, lost control over the bus, came to the wrong side and dashed against the petitioner’s motorcycle. Because of which, petitioner sustained grievous injuries. He was taken to ESI hospital, Rajajinagar and then he was admitted to M.S.Ramaiah hospital. A criminal case came to be registered against the driver of the BMTC bus (details not furnished).
6. The corporation resisted the claim petition.
7. The learned member of the Tribunal on the basis of the oral evidence of PWs 1 and 2 and RW1 and documentary evidence of Exs.P1 to P14, on behalf of claimant, allowed the petition in part and awarded the compensation as mentioned above. The same is challenged both by the Corporation and the claimant in these appeals.
8. Learned counsel for Corporation would submit that the mode of accident has been wrongly stated, though the discharge summary marked as Ex.P7 reveals that the patient was admitted with the history of dashing by bus when she was walking. Learned counsel also submits that monthly income is considered on the higher side and the percentage of disability as well is considered at 20% though there was no such disability. He would also submit that the rider has not suffered any injuries and her husband is not examined.
9. Learned counsel for claimant would submit that the claimant was earning Rs.15,000/- per month by doing tailoring work and it has been considered unreasonably on the lower side at Rs.8,000/- per month.
In the set of circumstances, BMTC takes contention in the appeal that the accident did not happen as claimed by the claimant.
10. It is necessary to place on record either the registration of the case or the consequences of the offences is not challenged by the Corporation. On going through the issues framed by the Tribunal, it is seen that respondent-Corporation has not raised such a contention before the Tribunal and it is apparent on reading para No..4 of the judgment. Thus, it is stated that the manner of accident is denied. There is no specific version in the pleadings nor the evidence to corroborate such contention. It is also the contention that there were three persons traveling on motor cycle. Mere raising objection would not be sufficient. There must be corroborative evidence. The objection liable to be dismissed as it is raised without any proof or evidence. Thus, I do not find merit in the contentions and the objections raised by learned counsel for BMTC and it is rejected.
11. Injuries stated to have been suffered by the claimant are, fracture of left femur midshaft with proximal tibia and other multiple injuries. The Doctor assessed disability at 24%. Learned Member considered the same at 20%. The claimant is stated to be working as tailor with a monthly income of Rs.15,000/-.
Learned Member has considered the income at Rs.8,000/- per month and calculated loss of dependency at Rs.2,88,000/- (Rs.8,000x20% =1,600x12x15 = Rs.2,88,000/-).
12. Insofar as quantum of compensation is concerned, learned counsel for injured claimant would submit that the income is considered on the lower side and compensation granted on all the heads are very less. The breakup compensation is as under:
Pain and agony Rs. 50,000/-
Loss of income during treatment period Rs. 32,000/-
Loss of earning Rs. 2,88,000/-
Medical expenses Rs. 7,675/-
Loss of amenities, conveyance food and nourishment, attendant charges etc.
Rs. 20,000/-
Future medical expenses Rs. 15,000/-
Total Rs.4,12,675/-
13. On perusal of the breakup compensation awarded, I do not find neither the compensation granted is unreasonably on higher or lower side. There is no necessity to interfere with the judgment and award of the Tribunal as it is neither infirm nor irregular or perverse. Accordingly, both the appeals are dismissed.
The amount in deposit be transmitted to the jurisdictional Tribunal, forthwith.
tsn* Sd/- JUDGE