IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4829 OF 2016 (MV) BETWEEN M. VIGNESH S/O M. MURUGAN AGED ABOUT 24 YEARS R/A NO. 297, E-21 5TH CROSS, YARABNANAGARA BANASHANKARI, 2ND STAGE BANGALURU SOUTH BANGALORE – 70.
... APPELLANT (BY SRI. JAGADEESH . H.T - ADVOCATE) AND THE MANAGING DIRECTOR B.M.T.C. SHANTHINAGARA K.H. ROAD BANGALORE – 27.
... RESPONDENT (BY SRI. K. NAGARAJA – ADV., FOR RESPONDENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.03.2016 PASSED IN MVC NO. 1121/2015 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE AND 28TH ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred against the judgment and award dated 24.03.2016 rendered by the Tribunal in MVC No.1121/2015 seeking enhancement of the compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 12.02.2015 at about 3.55 p.m. while the appellant/petitioner was riding the motor cycle bearing Reg.No.KA 05 HN 4960 along with Sharathkumar as pillion rider, near Lakshminarasimha Swamy Temple Road junction, Teachers Colony, Subramanyapura, Bengaluru, at that time, the driver of BMTC bus bearing No.KA-57-F-592 came in a high speed and rash and negligent manner and dashed against the two wheeler. Due to the said impact, both rider and pillion rider fell down and sustained grievous injuries. Immediately, they were shifted to Sagar Hospital, Kumaraswamy Layout, Bengaluru. Due to the impact of the accident, Sharathkumar died in the hospital on the same day. The appellant/petitioner suffered injury, pain and suffering and spent considerable amount towards his treatment and nourishment, besides there being loss of earnings during the medical treatment and loss of future earnings. On all these grounds, the petitioner filed the claim petition seeking compensation.
4. On issuance of notice, respondent – BMTC appeared through the counsel and filed written statement denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed the issues and recorded findings. In order to prove the case, petitioner was examined as PW.2, two doctors were examined as PW.3 and 4 and Exs.P1 to P27 were marked on behalf of petitioners. Respondent got marked one witness as RW.1. After hearing arguments of learned counsel on both sides, the Tribunal passed the impugned judgment, awarding compensation of Rs.5,41,334/- with interest @ 6% p.a. from the date of petition till the date of deposit. It is this judgment which is challenged under this appeal, seeking enhancement by urging various grounds.
6. Learned counsel for the appellant contends that the quantum of compensation awarded by the Tribunal is on lower side and the Tribunal erred in not properly appreciating the evidence on record in the proper perspective and the same has resulted in miscarriage of justice. Further, the compensation awarded under the heads, pain and sufferings, loss of amenities, loss of income during laid up period and other heads is on lower side and the same needs to be enhanced. Further it is contended that the impugned judgment and award passed by the Tribunal is opposed to law, facts and probabilities. Hence, on all these grounds, learned counsel for the appellant prays for allowing the appeal by enhancing the compensation.
7. Per contra, the learned counsel appearing for the respondent BMTC contends that the accident occurred due to rash and negligent riding of the rider of the two wheeler. He disputes the injuries sustained by the petitioner in the accident. The compensation claimed by the claimants is exorbitant. He contends that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. In this backdrop of the contentions taken by learned counsel for the appellant as well as learned counsel for the BMTC, it is relevant to state there is no dispute regarding involvement of the vehicle, and due to the accident, the petitioner sustained injuries. The sketch and mahazar marked as per Exs.P2 and P3 reveals that PW.2 was treated with history of road traffic accident hit by a bus. The Tribunal on looking into the evidence of PW.2 and documentary evidence such as Ex.P1-FIR, Ex.P2-Mahazar, Ex.P3-sketch, Ex.P4-IMV report and Ex.P7-Charge sheet has rightly held that the accident in question was on account of rash and negligent driving of the offending vehicle by its driver and petitioner sustained grievous injuries due the said accident.
9. Petitioner contends that he was aged 23 years, working as a carpenter and choreographer and was earning Rs.12,000/-. In order to substantiate his age, avocation and earnings, he has produced voter ID card, salary certificate and photos as per Exs.P.21 to P.22 and Ex.P24. In the absence of proof of income and taking into consideration the year of the accident, the Tribunal has taken notional income of the petitioner at Rs.7,500/- p.a.
10. As per the wound certificate at Ex.P19, Discharge summary as per Ex.P20, case sheet as per Ex.P27, the petitioner has sustained extensive degloving injury over left lower limb, fracture of left fibula, head injury with multiple fracture with acute subdural haematoma. He has taken treatment as inpatient at Namratha Orthopaedic and surgical centre, Jayanagar, Bengaluru. PW.3 – the treated Doctor has stated in his evidence that fracture of fibula is united but there is skin staples and soft tissue irregularity and there is restriction of movements of joints, loss of muscle power around left ankle and assessed the disability to the extent of 22% to the whole body. The Tribunal having considered the injuries sustained by the petitioner and the nature of work has taken 10% disability to the whole body and calculated the compensation under the head loss of future earnings at Rs.1,62,000/-. But having regard to the year of accident, nature of injuries and avocation of the petitioner, the notional income has to be taken at Rs.9,000/- p.m. as per the guidelines and illustrations of the Lokadalath. Further, looking into the wound certificate and disability certificate and the evidence of the Doctor, the disability has to be taken at 12%. Accordingly, the compensation under the loss of future earnings would be Rs.9,000 x 12 x 18 x 12/100 = 2,33,280/-. Thus, the petitioner is entitled for compensation in a sum of Rs.2,33,280/- as against Rs.1,62,000/- under the head loss of future earnings. The enhanced compensation would be Rs.71,280/-.
11. Further, the compensation awarded by the Tribunal in a sum of Rs.20,000/- towards loss of amenities also appears to be on lower side. Having regard to the nature of injuries sustained by the petitioner, another sum of Rs.10,000/- is awarded under this head. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The impugned judgment and award dated 24.03.2016 passed by the Tribunal in MVC No.1121/2015 is hereby modified. The appellant/claimant is entitled to enhanced compensation of Rs.81,280/- with interest @ 6% p.a. from the date of petition till realisation.
The Respondent-BMTC shall deposit the enhanced compensation with interest before the concerned Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
DKB SD/- JUDGE