IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2333 OF 2014 (MV) BETWEEN:
Smt.Sharadamma, W/o Late Ramachandra, Aged about 32 years, R/at No.13, 12th Cross, Sunnakal Farm, Wilson Garden, Adugodi Post, Bengaluru.
Pin Code – 560 068.
(By Sri.H.K.Satheesh, Advocate for Sri.Bopanna B, Advocate) AND:
1. The Branch Manager, United India Insurance Co. Ltd., 1st Floor, Lakshmi Complex, No.40, Sri.Krishnarajendra Road, Fort, Bengaluru – 560 002.
2. The Managing Director, BMTC, KH Road, Bengaluru – 560 027.
...Appellant ... Respondents (By Sri.C.Shankara Reddy, Advocate for R.1 and Sri.F.S.Dabali, Advocate for R.2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 10.01.2013 passed in MVC No.3585/2010 on the file of the III Additional Senior Civil Judge, Member, MACT, Bengaluru, dismissing the claim petition for compensation and etc.
This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT The claimant is in appeal aggrieved by the dismissal of the claim petition under the judgment and award dated 10.01.2013 passed in MVC No.3585/2010 on the file of the III Additional Senior Civil Judge and MACT, Bengaluru.
2. The claim petition was filed under Section 166 of the Motor Vehicle Act claiming compensation for the accidental injuries sustained in a road traffic accident. It is stated that on 13.04.2010, when the claimant was waiting for the bus at the BTS Bus Stop, near Madiwala Check Post, the driver of the BMTC bus bearing registration No.KA-01-F-2250 came in a rash and negligent manner and dashed to the claimant, due to which, she sustained grievous injuries. She was inpatient for 28 days. It is stated that she was a coolie and was earning Rs.4,000/- per month. She was aged about 28 years as on the date of the accident.
3. On issuance of notice, respondent No.1-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments. Further, it is stated that the accident occurred due to the negligence of the claimant herself and she contributed her negligence to the accident. The accident occurred is only due to the negligence of the claimant herself as she fell down from the moving bus. But, the Insurer admitted the issuance of Insurance Policy to the offending vehicle and its validity as on the date of the accident. It is also contended that the compensation claimed is excessive and exorbitant.
4. The claimant examined herself as P.W.1 and also examined three other witnesses as P.W.2 to 4. The documents Ex.P.1 to 16 were marked on behalf of the claimant. The respondents examined R.W.1 to 4 apart from marking Ex.R.1 and R.2.
5. The Tribunal appreciating the materials placed before it dismissed the claim petition itself on the ground that the accident had occurred solely due to the negligence of the claimant herself. Aggrieved by the same, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.1 – Insurer and perused the lower court records.
7. Learned counsel for the claimant – appellant would submit that the Tribunal committed an error in rejecting the claim petition filed under Section 166 of the Motor Vehicles Act claiming compensation for the accidental injuries sustained involving BMTC Bus bearing Registration No.KA-01-F-2250. It is submitted that the Tribunal without looking to any other document, solely based on Ex.P.15 – MLC Register Extract, wherein it was noted as “patient fell from moving bus and wheel of the bus ran over the right foot”, was of the view that the accident occurred is solely due to negligence of the claimant and dismissed the claim petition, which is wholly erroneous and perverse.
8. Learned counsel further submits that P.W.1 – claimant has clearly stated that while she was waiting for bus near Madiwala Check Post, the driver of BMTC bus came in a rash and negligent manner with high speed and dashed to the claimant, due to which, she sustained injuries. On the date of the accident, the complaint is lodged as per Ex.P.1, wherein also claimant stated that while she was waiting for Bus, BMTC bus came in a rash and negligent manner and dashed to the claimant. It is his further submission that the respondent No.1-Insurer has not denied the accident itself but has questioned the manner of accident. When such being the case, the Tribunal could not have rejected the claim petition holding that the accident occurred solely due to the negligence of the claimant herself. With regard to the quantum of compensation, learned counsel for appellant submits that claimant was earning Rs.4,000/- per month by doing coolie work and she was inpatient for a period of 28 days for the injuries sustained in the accident. It is stated that the claimant was aged about 28 years as on the date of the accident. The claimant sustained Degloving Injury to the right foot, which is grevious in nature. She has undergone surgery. The Doctor – P.W.2 examined on behalf of the claimant states that claimant suffered from 29% disability to the Limb and assessed 9.6% permanent physical disability to the whole body. With the above said observations, the learned counsel for appellant prayed to allow the appeal and to award appropriate compensation.
9. Per contra, learned counsel for respondent No.1 – Insurer would submit that because of the contradictory statements with regard to the accident, the Tribunal has rightly come to the conclusion that the accident had taken place solely due to the negligence of the claimant herself.
It is his submission that Exs.P.14 and 16 would state that the claimant while boarding the BMTC Bus, fell down and sustained injuries. When such being the case, the claimant cannot contend that the accident occurred solely due to the negligence of the driver of the BMTC Bus. With regard to the quantum of compensation, learned counsel for respondents submit that the claimant herself has stated that she was earning Rs.4,000/- per month and she was inpatient for 28 days. Looking to the injuries sustained, Doctor’s evidence and the nature of injuries, this Court could award appropriate compensation.
10. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is.
Whether the Tribunal is justified in dismissing the claim petition. If the answer is in negative, what is the quantum of compensation to be awarded to the claimant?
Answer to the above point would be in the negative for the following reasons.
11. There is no serious dispute with regard to the accident that had taken place on 13.04.2010 involving the BMTC Bus bearing Registration No.KA-01-F-2250. The Tribunal rejected the claim petition only on the ground that the accident occurred solely due to the negligence of the claimant herself. To arrive to the said conclusion, the Tribunal has relied upon the Ex.P.15 – MLC Register Extract and it records that the patient was brought by one Gopal – the bus Driver with a history of alleged RTA that the patient was trying to get into the BMTC Bus and fell down and sustained injuries. The version recorded in Ex.P.15 is the version of one Gopal – Bus Driver. When the Driver was on the driver seat, he would not have seen what had transpired while the claimant was trying to get into the Bus. Only on Ex.P.15, the Tribunal could not have come to the conclusion that the accident had taken place only due to the negligence of the claimant herself without looking into the other records. Ex.P.1 – complaint would indicate that while the claimant was waiting for the Bus at the BTS Bus Stop, near Madiwala Check Post, the driver of the BMTC Bus came in a rash and negligent manner and dashed to the claimant. The spot mahazar recorded is also to the effect that when claimant was waiting at the Bus Stop at Madiwala Check Post, the BMTC Bus bearing registration No.KA-01-F-2250 came in a rash and negligent manner and dashed to the claimant and ran over her right foot.
12. It is pertinent to note here itself that respondent No.1 – Insurer has not disputed the accident itself, but, the Insurer disputed the manner of occurrence of accident.
R.W.1 – Gopal, the Driver of the bus states that the claimant boarded his bus and got down immediately from the moving bus from the back door and fell down and sustained injuries. When he says that he was driving the bus, he could not have seen what had happened at the back door of the Bus. That itself would be sufficient to hold that the history recorded under Ex.P.15 – MLC Register is not correct. Admittedly, the charge sheet is filed against the Driver of the BMTC Bus – R.W.1. R.W.1 – the Driver of the BMTC Bus also admits that BMTC has initiated enquiry against him, which is pending. The respondent No.1-Insurer has not examined any independent witness to say that the claimant herself fell from moving BMTC Bus and sustained injuries. Respondent No.1-Insurer cross-examined P.W.1 – claimant but in its cross-examination, it is not suggested that claimant fell down from the moving bus and sustained injuries. The Conductor of the Bus could have been the best witness to say with regard to the manner of occurrence of accident and with regard to the negligence. Non-examination of Conductor of the bus is fatal to the case of respondent No.1-Insurer. When the Driver was on the driving seat, definitely he could not have stated about what had transpired at the back door of the Bus. Thus, from Exs.P.1, 2 and 4 coupled with evidence of R.W.1 and P.W.1, I am of the view that the accident had taken place solely due to the negligent driving of the Driver of the BMTC Bus and not due to the negligence on the part of the claimant.
13. The claimant has placed on record – Ex.P.6 – Wound Certificate, which notes the following injuries;
“Two deep lacerated wounds on the dorsum of the right foot (explosing the landoms) 1) 8x5 cm deep lacerated wound 2) 3x3 cm lacerated wound (Degloving injury – right foot) Grevious in nature”
14. The claimant was inpatient from 13.04.2010 to 10.05.2010 nearly 28 days for treatment. She has placed on record the medical bills i.e., Ex.P.8 amounting to Rs.12,633/-. The Doctor – P.W.2, in his evidence, stated that the claimant had sustained injuries measuring 10x10 centimeters on the right foot and she has suffered degloving injury to the right foot below the knee. P.W.2 – Doctor states that the claimant suffered from disability of 29% to a particular limb and 9.6% disability to the whole body. Looking to the nature of injuries sustained by the claimant and looking into P.W.3 – Doctor’s evidence, the disability of the claimant could be assessed at 1/3rd of disability to a particular limb at 9%. The claimant states that she was working as coolie, earning a sum of Rs.4,000/- per month. The accident is of the year 2010. The notional Income assessed by this Court and the Lok-Adalath while settling the accident claims of the year 2010 is much more than what is stated by the claimant. Hence, it would be appropriate to assess the monthly income of the claimant at Rs.4,000/- per month. Looking to the injuries sustained, the claimant would have been out of employment for minimum period of three months and she would be entitled for loss of income during that period. The Medical Bills i.e., Ex.P.9 is not disputed by the Insurer. Looking to the injuries sustained and the treatment taken for 28 days as inpatient, the claimant would be entitled for a sum of Rs.20,000/- on the head of “pain and suffering” and sum of Rs.20,000/- on the head of “loss of amenities”.
Thus, the claimant would be entitled for the following compensation;
1 Pain and sufferings Rs.20,000/-
2 Loss of amenities Rs.20,000/-
3 Conveyance, food and attendant charges 4 Loss of income during laid up period (4000x3) Rs.15,000/- Rs.12,000/-
4 Medical Bills Rs.12,633/-
5 Loss of income due to disability (4,000x12x17x9)/100 Rs.73,440/-
Total Rs.1,53,073/-
Thus, the claimant would be entitled for total compensation of Rs.1,53,073/- with interest at the rate of 6% per annum.
15. In view of the aforesaid discussion, I pass the following order:-
(i) The impugned judgment and award dated 10.01.2013 passed in MVC No.3585/2010 is set-aside.
(ii) The claim petition is allowed.
(iii) The appellant-claimant would be entitled for total compensation of Rs.1,53,073/- together with interest at the rate of 6% per annum.
(iv) The appellant-claimant would not be entitled for any interest on the delayed period of 350 days as ordered by this Court on 26.08.2015.
Sd/- JUDGE NBM