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Karnataka High Court · body

2020 DIGILAW 1176 (KAR)

Chandras H T v. Manager B M T C , Bengaluru

2020-06-23

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT M Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) by the claimant seeking enhancement of compensation determined by the Motor Accident Claims Tribunal ('Tribunal' for short) in its judgment and award dated 25.07.2015 in M.V.C.No.3934/2014. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. Brief facts leading to the filing of the appeal are as follows: In terms of the averments in the claim petition, the claimant on 04-06-2014 went to his native place along with his wife, which is in Surapanahalli, Magadi Taluk. On the next day, when he and his wife were returning back to Bengaluru on his motorcycle bearing registration number KA-02-HN-4675 from Surapanahalli To Sunkadakatte towards Herohalli Cross, Bengaluru, when they reached near Herohalli Cross at about 7.45 a.m., a BMTC bus bearing registration number KA-01-FA-2342 on Magadi- Bengaluru Main Road being driven at a high speed, in a rash and negligent manner and in complete violation of traffic rules, dashed into the motorcycle. Due to the impact of the accident, the claimant and his wife fell down from the motorcycle and the wheel of the BMTC bus ran over the left leg of the claimant. Due to which the claimant sustained grievous injuries all over the body. It transpires that the claimant was shifted to Sri Lakshmi Hospital, Sunkadakatte, Bengaluru where he took treatment as an inpatient, underwent surgeries and his left leg below the knee was amputed and further treatment was given. The claimant was required to take treatment as an outpatient even after his discharge. The claimant on claiming to have spent huge amount of money for the amputation and the treatment, filed a claim petition before the claims Tribunal interalia contending that prior to the accident he was hale and healthy and working as a tailor and Iron piece worker and also doing agriculture work and was getting a monthly income of Rs.30,000/- and he was contributing the entire income to the welfare of the family. Due to the accident he has suffered functional disability resulting in huge loss of future earnings. Due to the accident he has suffered functional disability resulting in huge loss of future earnings. He claimed a compensation of Rs.1,00,00,000/- for the injuries sustained by him in the aforementioned road traffic accident. 5. On issuance of notice, the respondent appeared and filed its statement of objections interalia contending that the claim was not maintainable either on law or on facts as there was no negligence on the part of the driver of the BMTC bus, on the contrary the accident had taken place on account of the rash and negligent riding of the motorcycle by the claimant. The date of the alleged accident was denied, it was also contended that the claimant did not have a valid and effective driving license to drive the same. It was also denied that the accident took place on account of the rash and negligent driving by the claimant and when he reached Herohalli Cross, it was also denied that the claimant took treatment at Sri Lakshmi Hospital as an inpatient by spending huge amount. The age, avocation and income of the claimant was also denied. 6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. In order to substantiate the claim, the claimant examined himself as PW.1 and got examined four other witnesses as PW.2 to PW.5 and marked 27 documents as exhibit P1 to exhibit P27. On the other hand, the respondent - BMTC examined the driver of the bus as RW.1 and did not mark any documents in their favour. The Tribunal by the impugned judgment, interalia, held that the claimant was entitled to a sum of Rs.20,46,350/- as compensation for the injuries sustained in the road traffic accident. The present appeal is preferred by the claimant seeking enhancement of compensation awarded by the Tribunal. 7. Learned counsel for the appellant - claimant contends that the Tribunal has failed to appreciate the fact that the monthly income of the claimant was Rs.30,000/- from the avocations that he was doing i.e. tailoring, Iron piece work and agricultural work. In support of his claim, he had produced the salary certificate as per exhibit P12, the order of appointment as per exhibit P13 and the cancellation of appointment by communication as per exhibit P14. In support of his claim, he had produced the salary certificate as per exhibit P12, the order of appointment as per exhibit P13 and the cancellation of appointment by communication as per exhibit P14. He contends that he had been offered a job as Quality Controller in Tween Apparel Manufacturing Private Limited, Bengaluru and was to join duties with effect from 17-08-2014 on a fixed salary of Rs.18,000/- per month. It is his contention that at least that salary ought to have been taken note of by the Tribunal but the Tribunal has taken only Rs.8,000/- as monthly income of the claimant, which has resulted in the compensation being on the lower side with regard to loss of future income. It is the contention that the Tribunal has awarded meagre amounts on various other heads to arrive at a total compensation of Rs.20,46,350/-. 8. Learned counsel for the respondent contends that the Tribunal has erred in granting compensation on the ground of loss of future earning, accepting the medical bills which on the face of it appears to be fraudulent/bogus and would submit that the compensation awarded by the Tribunal is already on the higher side and there is no warrant for the claimant to seek any enhancement of such compensation awarded by the Tribunal. 9. We have heard Sri R.V.Shivananda Reddy, learned counsel for the appellant and Sri D.Vijaya Kumar, learned counsel for the respondent and perused the record. 10. The only issue that arises for our consideration is with regard to the quantum of compensation awarded by the Tribunal. 11. The claimant sustained the following injuries in the accident : "1. Irregular bone deep laceration over the left leg in the lower 1/2 (crush injury). X-ray of left leg shows Type 3 open fracture of left tibia and fibula in the lower 1/3rd. 2. Abrasion over the left knee joint on lateral aspect, measuring 2x1 cms." 12. Pw.5 is the Assistant Professor of Bangalore Medical College and Research Institute who is the doctor who assessed the claimant on the aforementioned injuries. In his evidence, the doctor would depose that he was admitted to the hospital for the second time on 11-08-2014 and the surgery for amputation of the left leg was done on 13-08-2014 and he was subsequently discharged on 19-08-2014. In his evidence, the doctor would depose that he was admitted to the hospital for the second time on 11-08-2014 and the surgery for amputation of the left leg was done on 13-08-2014 and he was subsequently discharged on 19-08-2014. He further states that he has examined the claimant on 30-05-2015 and found the following difficulties: "a. Cannot stand and bear weight on left leg without support. b. Cannot sit cross legged, squat and use Indian toilet. c. Cannot climb up and down the stair case." In terms of the afore-extracted injuries and the post operative difficulties, the permanent physical disability of the claimant was assessed at 60% and was advised to wear an artificial limb which would approximately cost Rs.2,50,000/-. These factors have been sustained by the witness i.e. PW.5, the doctor, even in his cross-examination, though it was admitted that he did not treat the claimant personally but has assessed him thoroughly with regard to his disability and further admits that wearing of an artificial limb in future is not required. The percentage of disability in terms of the doctor's evidence is to be treated at 60% to the whole body. 13. Insofar as the monthly income of the claimant is concerned, though he has produced a salary certificate as per exhibit P.12, which is issued by the Company where the claimant was working as a tailor and Iron piece worker, PW3 is examined by the claimant as proof of evidence of exhibit P12. PW3 in his cross-examination states that there were 70 employees working in the Company and 15 employees were working under him, but contends that they were paying salary by way of cash and they were maintaining the salary particulars in a ledger which was maintained by the Company and would contend that they were paying only Rs.4,000/- as salary. 14. Pw.4 is examined to prove exhibit P.13 and exhibit P14. PW.4 is the Human Resource Manager of Tween Apparel Manufacturing Private Limited, who in his evidence states that the claimant was selected to be appointed in the Company for a salary of Rs.18,000/- p.m. and was directed to join duty from 17-06-2014. Since he did not join the duties, they cancelled his appointment. Thus, the claim of the claimant that the salary should be taken at Rs.18,000/- is also without any evidence. 15. Since he did not join the duties, they cancelled his appointment. Thus, the claim of the claimant that the salary should be taken at Rs.18,000/- is also without any evidence. 15. The Tribunal has taken the monthly income of the claimant at Rs.8,000/- disbelieving the version of the employer who had stated that they were paying only Rs.4,000/- p.m. In the absence of proof of evidence with regard to the monthly income of the claimant, the chart prepared by the Karnataka State Legal Services Authority has to be taken into account. The accident is of the year 2014, the claimant was aged 36 years, the notional income of the claimant ought to have been assessed at Rs.8,500/- p.m. in terms of the aforestated chart. Thus, the claimant would be entitled to a sum of Rs.9,18,000/- (Rs.8,500/- x 12 x 15 x 60/100) towards loss of future income. 16. The contention of the learned counsel for the respondent that the medical bills submitted on the face of it appear to be bogus deserves to be rejected as the said plea is neither taken before the Tribunal nor has been refuted by placing evidence to the contrary before the Tribunal. It is settled principle of law that the respondent Corporation is not only required to plead its case but also demonstrate the same with cogent evidence. The respondent having failed to do so before the Tribunal cannot now contend with regard to the veracity of the medical bills, more so, in the light of the fact that the respondent has not preferred in this appeal against the award of the Tribunal. 17. Insofar as the award of compensation on various other heads, we deem it appropriate to enhance the same. On the head of pain and suffering, the compensation awarded is enhanced by another Rs.20,000/-. On the loss of income during the laid up period, the compensation is determined at Rs.51,000/-. On loss of amenities etc., we deem it appropriate to enhance it by Rs.10,000/- and loss of happiness by Rs.20,000/-. 18. Thus, in all, the claimant would be entitled to the compensation of Rs.21,33,350/-. On the loss of income during the laid up period, the compensation is determined at Rs.51,000/-. On loss of amenities etc., we deem it appropriate to enhance it by Rs.10,000/- and loss of happiness by Rs.20,000/-. 18. Thus, in all, the claimant would be entitled to the compensation of Rs.21,33,350/-. The break up is as follows: S. No. Description In MVC No. 3934 Of 2014 (in Rupees) Enhancement in MFA No. 7957 of 2015 (in Rupees) Total Compensation (in Rupees) 1 Pain and Suffering 80,000 20,000 1,00,000 2 Loss of Income during laid up period 48,000 3,000 51,000 3 Medical Bills 9,34,350 - 9,34,350 4 Loss of future earning 8,64,000 54,000 9,18,000 5 Loss of amenities, conveyance, food and nourishment, attendant charges etc. 40,000 10,000 50,000 6 Loss of happiness 30,000 20,000 50,000 7 Future medical expenses 50,000 - 50,000 Total 20,46,350 1,07,000 21,53,350 19. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. 20. Accordingly, the appeal stands disposed of with the modification of the award of the claims Tribunal to the aforesaid extent.