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2022 DIGILAW 1326 (KAR)

R. ramesh v. Managing Director, Bmtc

2022-10-10

H.P.SANDESH

body2022
JUDGMENT 1. Heard the learned counsel for the appellant and the learned counsel for respondent No.2. 2. This appeal is filed challenging the judgment and award dtd. 5/4/2013, passed in M.V.C.No.1675/2011, on the file of the IV Additional Judge, Court of Small Causes, Member, MACT, Bengaluru ('the Tribunal' for short). 3. The factual matrix of the case of the claimant before the Tribunal is that he met with an accident on 24/2/2011, as a result, he has suffered compound fracture of left tibia lower end type III and also lacerated wound 3 x 1 cm. over anterior medial aspect above ankle of left leg and lacerated wound over anterior aspect above ankle of right leg 4 x 2 cm. In support of his claim, he examined the doctor as P.W.2, who assessed the disability of 41.9% to left lower limb and 20.79% to the whole body. The Tribunal accepted 10% disability and awarded the compensation. 4. The learned counsel for the appellant would vehemently contend that the Tribunal has committed an error in taking the disability of 10% and also committed an error in taking the income of Rs.4,500.00 per month and it was an accident of the year 2011 and compensation awarded under all other heads are very meager. The claimant was an inpatient for a period of 14 days and no compensation is awarded under the head loss of amenities. The learned counsel would contend that the Tribunal has committed an error in apportioning the contributory negligence of 20% on the claimant and the very approach of the Tribunal is erroneous and hence it requires interference of this Court. 5. Per contra, the learned counsel for respondent No.2 submits that the doctor who has been examined as P.W.2 assessed the disability of 20.79% to the whole body and the same is erroneous and the Tribunal has rightly taken the disability of 10% and hence it does not require interference of this Court. The learned counsel submits that the compensation awarded under other heads are just and reasonable. The learned counsel would submit that he was standing on the road at a distance of 3 feet from the edge of the road, hence, the Tribunal has rightly taken the contributory negligence and hence it does not require interference of this Court. 6. The learned counsel submits that the compensation awarded under other heads are just and reasonable. The learned counsel would submit that he was standing on the road at a distance of 3 feet from the edge of the road, hence, the Tribunal has rightly taken the contributory negligence and hence it does not require interference of this Court. 6. Having heard the respective learned counsel and also on perusal of the material available on record, the points that arise for the consideration of this Court are: (i) Whether the Tribunal has committed an error in taking the contributory negligence of 20% on the part of the appellant and whether it requires interference of this Court? (ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation? (iii) What order? Point No.(i): 7. Having heard the respective counsel appearing for the parties and also on perusal of the material on record, it discloses that the Tribunal while answering issue No.1 discussed in paragraph No.10 of the judgment that the claimant has admitted the document at Ex.P.6 and during the course of crossexamination of P.W.1 also he admits the same and he stated that he was waiting for the bus and hence, taken 20% contributory negligence. But having taken note of Ex.P.6, it is very clear that the bus came on the extreme left side of the road since there is no bus stop or any other stop near the place of accident. When such being the case, when the claimant was waiting on the edge of the road at a distance of 3 feet, the same cannot be a contributory negligence and if he tried to cross the road, then there is a force in the contention of the argument of the respondent's counsel and hence it is appropriate to consider that the Tribunal has lost its sight on the said fact and only merely accepting the document at Ex.P.6-sketch which was drawn by the Investigating Officer, comes to the erroneous conclusion and the very approach of the Tribunal is erroneous and apportioning of 20% of contributory negligence on the part of the appellant is erroneous. Thus, it requires interference of this Court. Hence, I answer point No.(i) in affirmative. Point No.(ii): 8. The claimant was an inpatient for a period of 14 days in terms of case sheet as per Ex.P.16. Thus, it requires interference of this Court. Hence, I answer point No.(i) in affirmative. Point No.(ii): 8. The claimant was an inpatient for a period of 14 days in terms of case sheet as per Ex.P.16. The doctor assessed the disability of 41.9% to the left lower limb and the Tribunal committed an error in taking the disability of 10% and ought to have considered 1/3rd of 41.9% and if the same is taken, it comes to 14%. Hence, it is appropriate to take disability of 14%. 9. The learned counsel for respondent No.2 submits that the claimant himself admitted his income as Rs.6,000.00 per month and though notional income is Rs.6,500.00 per month, when there is an admission on the part of the claimant that he was earning Rs.6,000.00 per month, it is appropriate to take the income as Rs.6,000.00 per month. Having considered his income as Rs.6,000.00 per month and applying the relevant multiplier of 17' as he was aged about 26 years and taking the disability of 14%, the loss of future income comes to Rs.1,71,360.00 (Rs.6,000.00 x 12 x 17 x 14%). 10. The Tribunal awarded compensation of Rs.15,953.00 under the head medical expenses based on documentary evidence and hence it does not require interference of this Court. 11. Having considered the nature of injury suffered i.e., compound fracture of left tibia lower end type III and other two injuries and the accident is of the year 2011, the Tribunal rightly awarded an amount of Rs.40,000.00 under the head pain and suffering and hence it does not require interference of this Court. 12. The Tribunal awarded an amount of Rs.18,000.00 under the head loss of income during laid up period. When the claimant has suffered the compound fracture of left tibia lower end type III and also injury to left ankle, it requires minimum five months for uniting of fracture. Hence, it is appropriate to award an amount of Rs.30,000.00 (Rs.6,000.00 x 5) under the head loss of income during laid up period. 13. The Tribunal awarded the compensation of Rs.8,000.00 under the head attendant charges, Rs.5,000.00 under the head nutritious food and Rs.3,000.00 under the head conveyance charges. In all, Rs.16,000.00 is awarded and he was an inpatient for a period of 14 days and hence it does not require interference of this Court and just and reasonable compensation is awarded. 14. 13. The Tribunal awarded the compensation of Rs.8,000.00 under the head attendant charges, Rs.5,000.00 under the head nutritious food and Rs.3,000.00 under the head conveyance charges. In all, Rs.16,000.00 is awarded and he was an inpatient for a period of 14 days and hence it does not require interference of this Court and just and reasonable compensation is awarded. 14. The Tribunal has not awarded any amount under the head loss of amenities. The claimant is aged about 26 years and he has to lead rest of this life with 14% disability and hence it is appropriate to award an amount of Rs.30,000.00 under the head loss of amenities. 15. In all, the claimant is entitled for compensation of Rs.3,03,313.00 as against Rs.1,81,755.00. Point No.(iii): 16. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award of the Tribunal dtd. 5/4/2013, passed in M.V.C.No.1675/2011, is modified setting aside the contributory negligence on the part of the appellant and granting compensation of Rs.3,03,313.00 as against Rs.1,81,755.00 with interest at 6% per annum from the date of petition till deposit. (iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today. (iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith. /- JUDGE