B. U. CHAITANYA v. MANAGING DIRECTOR, BANGALORE METROPOLITAN TRANSPORT CORPORATION
2011-04-21
K.GOVINDARAJULU, S.ABDUL NAZEER
body2011
DigiLaw.ai
JUDGMENT : S. Abdul Nazeer, J.—These appeals arise out of a common judgment and award in M.V.C. Nos. 3005 and 3006 of 1999 dated 31.7.2002 on the file of the Motor Accidents Claims Tribunal-II, Bangalore. The appellants in M.F.A. No. 3600 of 2005 were the claimants in M.V.C. No. 3006 of 1999. Similarly, the appellant in M.F.A. No. 3601 of 2005 was the claimant in M.V.C. No. 3005 of 1999. All of them are the legal representatives of one D.H. Umesh. It is the case of the claimants that on 8.6.1999 at about 8 a.m., D.H. Umesh was proceeding on a scooter bearing registration No. CKK 8035 along with his two minor daughters, B.U. Chaitanya, appellant in M.F.A. No. 3601 of 2005, and another daughter B.U. Rachana, on Malleshwaram-Margosa Road to reach Nirmalarani School, when a bus belonging to Bangalore Metropolitan Transport Corporation (for short, 'the Corporation') bearing No. KA 01-F 1139, driven in a rash and negligent manner dashed against the scooter. On account of the accident, D.H. Umesh and his two minor daughters fell down from the scooter and sustained grievous injuries. The injured were shifted to K.C. General Hospital for first aid and later shifted to Mallige Medical Centre. D.H. Umesh succumbed to the injuries. The wife, children and mother of D.H. Umesh filed claim petition in M.V.C. No. 3006 of 1999 seeking compensation on account of the death of D.H. Umesh. Chaitanya and Rachana filed M.V.C. Nos. 3005 and 3160 of 1999 respectively seeking compensation for the injuries sustained by them in the accident. 2. The Corporation has entered appearance in the claim petitions and has filed its statement of objections denying the averments made in the claim petitions. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues. The parties have let in their evidence. On consideration of the materials on record, the Tribunal has allowed the claim petitions by its judgment and award dated 31.7.2002. In M.V.C. No. 3005 of 1999 filed by B.U. Chaitanya, the Tribunal has awarded a total compensation of Rs. 5,50,000. In M.V.C. No. 3006 of 1999, it has awarded compensation of Rs. 7,19,000. In M.V.C. No. 3160 of 1999 filed by B.U. Rachana, the Tribunal has awarded a compensation of Rs. 15,000. The claimants and the Corporation have challenged the judgment and award in M.V.C. Nos. 3005 and 3006 of 1999 dated 31.7.2002. 3.
5,50,000. In M.V.C. No. 3006 of 1999, it has awarded compensation of Rs. 7,19,000. In M.V.C. No. 3160 of 1999 filed by B.U. Rachana, the Tribunal has awarded a compensation of Rs. 15,000. The claimants and the Corporation have challenged the judgment and award in M.V.C. Nos. 3005 and 3006 of 1999 dated 31.7.2002. 3. The judgment and award in M.V.C. No. 3160 of 1999 dated 31.7.2002 has not been challenged by the parties. Thus, it has attained finality. 4. Learned counsel for the Corporation submits that the accident had occurred mainly due to rash and negligent riding of the scooter by the deceased. It is argued that D.H. Umesh was riding the scooter from 7th Cross Road, which is to the left of Margosa Road and entered Margosa Road without noticing the bus coming on the main road. It is argued that the bus was not driven in a rash and negligent manner by its driver. Therefore, the Tribunal was not right in fastening the liability on the Corporation. It is further contended that the award of compensation in favour of Chaitanya, the claimant in M.V.C. No. 3005 of 1999, in a sum of Rs. 5,50,000 is excessive. Similarly, the award of compensation in favour of the legal representatives of the deceased in M.V.C. No. 3006 of 1999 in a sum of Rs. 7,19,000 is also excessive. Learned counsel for the Corporation further submits that the appeals filed by Mr. T.C. Sathish Kumar, learned counsel on behalf of the claimants in M.F.A. Nos. 3600 and 3601 of 2005 are without knowledge and consent of the parties. It is argued that in the appeal filed by the Corporation, Mr. L.M. Chidanandayya, learned advocate, had filed vakalatnama on behalf of the claimants-respondents in the year 2003 itself. Mr. T.C. Sathish Kumar, learned counsel, has not been authorised to file the appeals by the claimants. 5. On the other hand, learned counsel for the claimants submits that the accident had occurred on account of rash and negligent driving of the bus belonging to the Corporation. It is argued that the claim petition filed by Rachana seeking compensation on account of injury sustained by her in the same accident in M.V.C. No. 3160 of 1999 was allowed by the Tribunal by a common judgment and award along with M.V.C. Nos. 3005 and 3006 of 1999.
It is argued that the claim petition filed by Rachana seeking compensation on account of injury sustained by her in the same accident in M.V.C. No. 3160 of 1999 was allowed by the Tribunal by a common judgment and award along with M.V.C. Nos. 3005 and 3006 of 1999. The Corporation has accepted the award in M.V.C. No. 3160 of 1999 and has deposited the compensation amount. Therefore, the Corporation cannot challenge its liability to pay compensation in M.V.C. Nos. 3005 and 3006 of 1999. It is argued that once the Corporation having admitted its liability to pay compensation in M.V.C. No. 3160 of 1999, it is estopped from challenging its liability to pay compensation in M.V.C. Nos. 3005 and 3006 of 1999. The Corporation cannot blow hot and cold at the same time. Even otherwise, the materials on record would clearly disclose that the driver of the bus was responsible for the accident. The finding of fact recorded by the Tribunal is on appreciation of the materials on record, which does not call for interference. 6. It is further argued by the learned counsel for the claimants-appellants that he has been authorised by the claimants-appellants to file the appeals M.F.A. Nos. 3600 and 3601 of 2005. 7. It is further contended that in M.V.C. No. 3005 of 1999 (M.F.A. No. 3601 of 2005) filed by Chaitanya, the award of compensation is on the lower side. It is argued that she remained in Mallige Nursing Home from 8.6.1999 to 15.6.1999. Thereafter, she was admitted to Manipal Hospital from 18.6.1999 to 10.9.1999. Again, she was re-admitted to Manipal Hospital from 8.10.1999 to 11.11.1999 and from 23.3.2000 to 27.3.2000. Thereafter, she was taking treatment as an outpatient. The Tribunal has not awarded compensation towards loss of marriage prospects. The award of compensation for pain and suffering, loss of amenities, loss of expectation of life, etc. are also on a lower side having regard to the evidence of the doctor. It is further contended that the award of compensation in M.V.C. No. 3006 of 1999 (M.F.A. No. 3600 of 2005) filed by the legal representatives of the deceased is also on a lower side. The deceased had left behind four legal representatives. Therefore, 1/4th of income should have been deducted for his personal expenses.
It is further contended that the award of compensation in M.V.C. No. 3006 of 1999 (M.F.A. No. 3600 of 2005) filed by the legal representatives of the deceased is also on a lower side. The deceased had left behind four legal representatives. Therefore, 1/4th of income should have been deducted for his personal expenses. Having regard to the age of the deceased, the Tribunal ought to have applied multiplier of 15 for award of compensation towards loss of dependency. 8. Having regard to the contentions urged, the points for consideration in these appeals are as under: (i) Whether the appeals M.F.A. Nos. 3601 and 3600 of 2005 filed by Mr. T.C. Sathish Kumar, learned counsel on behalf of the claimants, are maintainable? (ii) Whether the Tribunal is right in holding that driver of the offending vehicle belonging to the Corporation is responsible for the accident? (iii) Whether the compensation awarded to Chaitanya in M.V.C. No. 3005 of 1999 (M.F.A. No. 3601 of 2005) is just and reasonable? (iv) Whether the compensation awarded to the legal representatives of the deceased in M.V.C. No. 3006 of 1999 (M.F.A. No. 3600 of 2005) is adequate? Point No. (i): 9. M.F.A. Nos. 6900 and 6899 of 2002 are filed by the Corporation challenging the impugned judgment and awards in M.V.C. Nos. 3005 and 3006 of 1999 dated 31.7.2002. The said appeals were filed on 29.10.2002. In the said cases, Mr. L.M. Chidanandayya, learned counsel, has filed vakalatnama on behalf of the respondents-claimants on 19.8.2003 and 16.4.2003 respectively. However, Mr. T.C. Sathish Kumar, learned counsel, has filed appeals in M.F.A. Nos. 3600 and 3601 of 2005 on behalf of the claimants on 16.4.2005. The vakalatnama have been executed by the claimants in favour of Mr. T.C. Sathish Kumar on 15.4.2005 authorising him to file the said appeals. It is clear that Mr. T.C. Sathish Kumar, learned counsel, was authorised to file the appeals on behalf of the claimants. Merely because Mr. L.M. Chidanandayya, learned counsel, has filed vakalatnama in the connected matters on an earlier occasion, there is no bar for Mr. T.C. Sathish Kumar, learned counsel, to file appeals challenging the judgment and awards independently since he was authorised by the claimants to file them. There is no merit in the contention of the learned counsel for the Corporation that the appeals filed by Mr. T.C. Sathish Kumar, learned counsel, in M.F.A. Nos.
T.C. Sathish Kumar, learned counsel, to file appeals challenging the judgment and awards independently since he was authorised by the claimants to file them. There is no merit in the contention of the learned counsel for the Corporation that the appeals filed by Mr. T.C. Sathish Kumar, learned counsel, in M.F.A. Nos. 3600 and 3601 of 2005 are not maintainable. The said contention is hereby rejected. Point No. (i) is answered accordingly. Point No. (ii): 10. As has been noticed above, the claimants as also Rachana, the daughter of the deceased, had filed three claim petitions in M.V.C. Nos. 3005, 3006 and 3160 of 1999. All the claim petitions were allowed by a common judgment and award dated 31.7.2002. The Corporation has not challenged the judgment and award in M.V.C. No. 3160 of 1999 filed by Rachana. It is not in dispute that the Corporation has satisfied the said award. If that is so, the Corporation is estopped from contending that it is not liable to pay compensation in the other two claim petitions. It is well settled that once the Corporation has admitted the accident and paid the compensation in respect of a claim petition, it cannot raise a different stand insofar as its liability is concerned in the other claim petitions arising out of the same accident. They are estopped from doing so. 11. Apart from the above, we have independently examined as to whether the driver of the bus was responsible for the accident. The case of the Corporation is that the accident had occurred due to rash and negligent riding of the scooter by the deceased. He came from left side on 7th Cross Road and suddenly entered Margosa Road without noticing the bus coming on the main road and dashed against the bus. On the other hand, the contention of the claimants was that the driver of the bus was driving the bus in a rash and negligent manner and dashed against the scooter. R.V. Geetha, wife of the deceased, was examined as PW 1. She has stated in her evidence that her husband was proceeding towards school of her children to drop them in the school. Chaitanya, the claimant in M.V.C. No. 3005 of 1999, was examined as PW 3. She was a pillion rider of the scooter. She has deposed that the bus hit on the back side of the scooter.
She has stated in her evidence that her husband was proceeding towards school of her children to drop them in the school. Chaitanya, the claimant in M.V.C. No. 3005 of 1999, was examined as PW 3. She was a pillion rider of the scooter. She has deposed that the bus hit on the back side of the scooter. She has denied the suggestion that the accident had occurred due to rash and negligent riding of the scooter by her father. The respondents have not let in any evidence. Exhs. P2 and P3 are the first information reports, Exh. P5 is the sketch and Exh. P6 is the panchnama. A perusal of these documents would clearly indicate that the driver of the bus was driving the bus in a rash and negligent manner and has dashed against the scooter. A case was registered against the driver of the bus as per Exh. P4. The RTO has given a report as per Exh. P7 that there was no mechanical defect in the bus. Considering the oral and documentary evidence on record, the Tribunal has recorded a finding of fact that the driver of the bus was responsible for the accident. Having perused the entire materials on record, we are also of the view that the driver of the bus was responsible for the accident. Point No. (ii) is answered accordingly. Point No. (iii): 12. R.V. Geetha, the mother of claimant Nos. 2 and 3, was examined as PW 1. In her evidence, she has stated that her daughter Chaitanya had fracture of right leg. She had suffered crush injury. Later on, she was admitted to Manipal Hospital. She was an inpatient for 10 days. Her daughter is still taking treatment from Manipal Hospital. They have spent Rs. 5,50,000 towards medical expenses. She was studying in VI standard. On account of the injury sustained by her in the accident, she had lost an academic year. She is sending her daughter in an autorickshaw to the school as she is not able to walk because of the injury sustained by her to her right leg. She is paying Rs. 30 per day for auto charges. She cannot sit on the chair on her own. She looks ugly on account of wound scar. She has lost her marriage prospects and future enjoyment of amenities. She was a bright student before the accident.
She is paying Rs. 30 per day for auto charges. She cannot sit on the chair on her own. She looks ugly on account of wound scar. She has lost her marriage prospects and future enjoyment of amenities. She was a bright student before the accident. After the accident, she has become dull owing to depression. Exh. P2 to Exh. P25 are the hospital bills, corresponding prescriptions, photographs and other records. She needs an assistant permanently. She was cross-examined by the learned counsel appearing for the Corporation. Though she was cross-examined at length, nothing was elicited discrediting her statements made in her examination-in-chief. 13. Dr. A.V.S. Srikanth was examined as PW 2. He is the son of Dr. A. Sridhar, who had treated Chaitanya. Since Dr. A. Sridhar is no more, his son Dr. A.V.S. Srikanth was examined as PW 2. He has given his evidence on the basis of the records. He states that on 8.6.1999 when the claimant was examined, his father had noticed the following wounds: (i) Fracture of right leg, BB compound fracture; (ii) Fracture of right parietal bone; (iii) Lacerated wound right ankle; and (iv) Lacerated wound below the right eye. Exh. P20 is the wound certificate issued by Dr. A. Sridhar. He has further stated that Chaitanya was admitted to the hospital. Wound debridement and external fixator application was done immediately on her admission to the hospital. She repeatedly underwent wound debridement. She was also transfused four units of blood. She was discharged from the hospital on 15.6.1999 from Mallige Medical Centre and on the same day, she was admitted to Manipal Hospital. At Manipal Hospital, she underwent grafting on four occasions, wound debridement regularly and external fixator application to the right foot. Here also she was transfused blood. She was discharged with external fixtures on 10.9.1999. Subsequently, she attended OPD for follow-up treatment. She was again admitted to the hospital on 8.10.1999. External fixator was removed and POP cast was given. She was discharged on 11.10.1999. She was again admitted on 22.3.2000 with deformity of the right foot. Ankle fusion was done along with tendon lengthening on 25.3.2000 and she was discharged on 27.3.2000. Subsequently, she has been attending OPD regularly for follow-up treatment. On 12.3.2002, she was examined for assessment of disability.
She was discharged on 11.10.1999. She was again admitted on 22.3.2000 with deformity of the right foot. Ankle fusion was done along with tendon lengthening on 25.3.2000 and she was discharged on 27.3.2000. Subsequently, she has been attending OPD regularly for follow-up treatment. On 12.3.2002, she was examined for assessment of disability. She complains of inability to walk, to sit, to squat on the floor, to move right ankle and foot and to climb stairs. There is no movement of right foot. At right knee, there is restriction of movement. The right lower limb is badly scarred. She requires future surgeries for removal of staples from the foot and a surgery to put the foot in planti-grade position. These surgeries will cost Rs. 50,000 to Rs. 75,000. She is suffering from 60 per cent disability to the right lower limb and 30 per cent to the whole body. With the above disability, she cannot perform her normal activities as she was doing before. She may require an attendant for her movement as and when she moves out. She cannot participate in sports nor can she ride bicycle or a two-wheeler. In his cross-examination, he has stated that the permanent disability of Chaitanya is 30 per cent to the whole body. Chaitanya was examined as PW 3. She has stated that she has lost an academic year, as she could not attend the school. She is using an auto for her use exclusively. 14. The Tribunal has awarded a total compensation of Rs. 5,50,000 under different heads. In a similar case, a Division Bench of this court in Fakkirappa Vs. Yallawwa and Another, has laid down different heads under which the claimant is entitled for compensation. They are: (i) pain and suffering; (ii) loss of amenities of life, happiness, frustration, etc.; (iii) loss of marriage prospects; (iv) amputation of leg below knee; (v) loss of expectation of life; (vi) medical expenses inclusive of special food and nourishment; and (vii) future medical expenses. In addition to the above, Chaitanya is also entitled for compensation for loss of an academic year. As noticed above, Chaitanya had suffered grievous injuries. The photographs of Chaitanya are available at Exh. P25, which clearly support the evidence of the doctor. She was admitted to the hospital on various dates, which has been stated above. It is also evident that she requires future medical expenses.
As noticed above, Chaitanya had suffered grievous injuries. The photographs of Chaitanya are available at Exh. P25, which clearly support the evidence of the doctor. She was admitted to the hospital on various dates, which has been stated above. It is also evident that she requires future medical expenses. On account of deformity of her right foot, her marriage prospects have reduced. She was aged about 10 years at the time of the accident. Therefore, she is entitled for compensation towards pain and suffering in a sum of Rs. 1,50,000, and towards loss of future amenities in a sum of Rs. 1,50,000. She is also entitled for compensation towards loss of marriage prospects in a sum of Rs. 50,000, a sum of Rs. 50,000 towards loss of expectation of life and Rs. 25,000 towards loss of an academic year. The Tribunal has awarded medical expenses in a sum of Rs. 3,00,000 which is just and reasonable. She is also entitled for future medical expenses in a sum of Rs. 1,00,000, Rs. 30,000 towards future transportation and Rs. 50,000 towards food, nourishment, conveyance, etc. Thus, the claimant is entitled for a total compensation of Rs. 9,05,000. The Tribunal has awarded a sum of Rs. 5,50,000 towards compensation, which has to be deducted from the aforesaid sum. Thus, Chaitanya is entitled for an additional compensation of Rs. 3,55,000. The said sum shall carry interest at the rate of 6 per cent per annum from the date of the application till the date of deposit. Point No. (iii) is answered accordingly. Point No. (iv): 15. Deceased D.H. Umesh was the husband of claimant No. 1, father of claimant Nos. 2 and 3 and son of claimant No. 4. Claimant No. 1 was examined as PW 1. In her evidence, she has stated that her husband is the RC holder of two buses, namely, KA 02-B 4884 and KA 02-B 2222. She has further stated that he was also working as a travel agent and his monthly income was more than Rs. 18,000. However, no material has been produced in support of the said contention. Though PW 1 has stated that the deceased was an income tax assessee, copy of the returns have not been produced before the Tribunal. However, it is evident that he was the owner of the aforesaid two buses.
18,000. However, no material has been produced in support of the said contention. Though PW 1 has stated that the deceased was an income tax assessee, copy of the returns have not been produced before the Tribunal. However, it is evident that he was the owner of the aforesaid two buses. It is also clear that he was working as a travel agent. The Tribunal, on appreciation of the materials on record, has assessed the income of the deceased at Rs. 6,000 per month, which is just and reasonable. As per the post-mortem report, the deceased was 40 years at the time of his death. Therefore, the multiplier applicable to the case was 15. Since the deceased had left behind four dependants, 1/4th of the income has to be deducted for his personal expenses. With the application of 15 multiplier and taking his monthly income at Rs. 6,000 and deducting 1/4th of the income for his personal expenses, the loss of dependency comes to Rs. 8,10,000 (Rs. 6,000-Rs. 1,500=Rs. 4,500 x 12 x 15). The Tribunal has awarded a sum of Rs. 20,000 towards medical expenses taking into account the materials on record, which is also just and reasonable. The claimants are entitled for an additional sum of Rs. 40,000 under other conventional heads. Thus, the claimants are entitled for a total sum of Rs. 8,70,000. The Tribunal has awarded a sum of Rs. 7,19,000, which has to be deducted from the said sum. Thus, the claimants are entitled for an additional sum of Rs. 1,51,000 towards compensation. The said sum shall carry interest at 6 per cent per annum from the date of the application till the date of deposit. Point No. (iv) is answered accordingly. In the result, we pass the following order: (i) The appeals filed by the Corporation in M.F.A. Nos. 6899 and 6900 of 2002 are dismissed. (ii) The appeal filed by the legal representatives of deceased D.H. Umesh in M.F.A. No. 3600 of 2005 is allowed in part. The Corporation, respondent No. 1, is directed to deposit a sum of Rs. 1,51,000 with interest at 6 per cent per annum from the date of application till the date of deposit in addition to what has been awarded by the Tribunal. The enhanced amount shall be apportioned by the claimants in the same ratio as has been done by the Tribunal.
1,51,000 with interest at 6 per cent per annum from the date of application till the date of deposit in addition to what has been awarded by the Tribunal. The enhanced amount shall be apportioned by the claimants in the same ratio as has been done by the Tribunal. The claimants are permitted to withdraw the amount as above. (iii) The appeal filed by Chaitanya in M.F.A. No. 3601 of 2005 is also allowed in part. The Corporation, respondent No. 1, is directed to deposit a sum of Rs. 3,55,000 with interest at the rate of 6 per cent per annum from the date of the application till the date of deposit in addition to what has been awarded by the Tribunal. (iv) The aforesaid amounts shall be deposited by the Corporation within a period of eight weeks from the date of receipt of a copy of this order. (v) In M.F.A. No. 3601 of 2005, 75 per cent of the enhanced amount shall be invested in a fixed deposit in a nationalised bank for a period of five years. The claimant is permitted to withdraw half yearly interest. Balance of the amount shall be disbursed to the claimant. No costs.