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Judgment
Mr. B. Manohar, J.—The Managing Director, BMTC as well as the claimant have filed these two appeals, challenging the legality and correctness of the judgment and award dated 8th November 2013 made in MVC No. 5864/2012 passed by the Motor Accident Claims Tribunal Bengaluru (hereinafter referred to as The Tribunal'' for short).
The BMTC filed MFA No. 579/2014 challenging the liability fastened on them to pay compensation and also with regard to quantum of compensation, whereas the claimant being not satisfied with the quantum of compensation awarded by the Tribunal has filed MFA No. 1801/2014.
Since the judgment and award passed by the Tribunal has been challenged in these two appeals, both the appeals are clubbed together and disposed of by this common judgment.
For the sake of convenience and better understanding, the parties are referred to as they are arrayed before the Tribunal.
The claimant filed a claim petition contending that on 26-07-2012, while he was driving Ambulance bearing Registration No. KA-52/3555 on Nelamangala-Bangalore Road at about 7.00 p.m., near Janapriya Gate, the driver of BMTC bus bearing Registration No. KA-01/F-3828 driven in a rash and negligent manner came in zigzag manner and dashed against the Ambulance. Due to the said impact, the claimant has sustained grievous injuries. Immediately after the accident, he was shifted to the Chord Road Hospital, wherein he had taken treatment as inpatient. In view of the injuries sustained, he cannot work as a driver and he was removed from the job. Prior to the accident, he was getting salary of Rs. 9,000/- p.m. Due to the rash and negligent driving of the BMTC bus, the accident had occurred and sought for compensation of Rs. 10,00,000/-.
In response to the notice issued by the Tribunal, the BMTC entered appearance and filed written statement denying the entire averments made in the claim petition and also contended that driver of the BMTC bus was driving of the bus slowly and cautiously since the road was under repair near the Janapriya Gate. However, the driver of ambulance drove the same in a rash and negligent manner and dashed against the BMTC bus. The driver of ambulance did not possess the valid driving license to drive the ambulance. There is contributory negligence on the part of driver of the ambulance. Further, the insurer and owner of the ambulance have not been made parties. Hence, the claim petition is liable to be dismissed for non-joinder of necessary parties and sought for dismissal of the claim petition as against the BMTC.
On the basis of pleadings of the parties, the Tribunal framed necessary issues. The claimant in order to prove his case got examined himself as P.W.1, the doctor who treated him was examined as P.W.2, and one more witness was examined as P.W.3 and got marked documents as EX.P1 to Ex.P21. On behalf of the respondent, driver of the BMTC was examined as R.W.1, however no document has been marked on their behalf.
The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, spot mahazar, charge sheet, a copy of the FIR, held that the accident occurred due to the rash and negligent driving of the BMTC bus by its driver. With regard to quantum of compensation is concerned, the claimant has sustained compound fracture of tibia with vascular injury and underwent debridement external fixator. Initially he was inpatient for a period of 6 days and thereafter he was re-admitted to the hospital for bone marrow installations for a period of two days. Totally he was inpatient for a period of 8 days. The doctor who treated the claimant has assessed the disability to an extent of 17% to the whole body. Though the claimant claims that he was getting salary of Rs. 9,000/- p.m., and produced the salary certificate at F/X.P9, the author of the said certificate has not been examined. At the time of accident, the claimant was aged about 19 years. Taking into consideration notional income of Rs. 5,000/- p.m., applying the multiplier 18, taking into consideration disability to an extent of 17%, the Tribunal awarded a sum of Rs. 1,83,600/- towards the loss of income due to disability; Rs. 40,000/- towards pain and suffering; Rs. 20,000/- towards transportation, food and attendant charges; Rs. 81,800/- towards medical expenditure; and a sum of Rs. 20,000/- towards future medical expenditure. In all, the Tribunal has warded a sum of Rs. 3,45,400/- with interest at 6% p.a. Since the actionable negligence was on the part of driver of the BMTC bus, the liability was fastened on BMTC to compensate the claimant. The appellant/BMTC being aggrieved by the judgment and award passed by the Tribunal has filed MFA No. 579/2014. Whereas, the claimant being not satisfied with the quantum of compensation awarded taking into consideration the monthly income of Rs. 5,000/- and assessing the disability only to an extent of 17% has filed MFA No. 1801/14.
Sri. K. Nagaraj, learned counsel appearing for the BMTC contended that the judgment and award passed by the Tribunal is contrary to law. Due to the rash and negligent driving of the ambulance, the accident had occurred. The ambulance came extreme right side of the road and dashed against the BMTC bus. The Ban galore-Nelaman gala road was under repair, hence the width of the road was reduced to 8 feet. Unless one vehicle pass over, another vehicle cannot pass through. The driver had stopped the bus on the extreme left of the road whereas the driver of the ambulance came in rash and negligent manner and dashed against the BMTC bus. The driver of the ambulance did not possess the driving license to drive the ambulance. Hence, fastening the liability on the BMTC is contrary to law. Further the compensation of Rs. 3,45,400/- awarded towards fracture of tibia and fibula is exorbitant. The wound has already cured and the injury will not come in the way of claimant doing the work of a driver. A sum of Rs. 1,83,600/- awarded towards the loss of income due to disability and assessing 17% disability to the whole body is contrary to law. Hence, sought for modifying the judgment and award by filing the appeal filed by the BMTC.
On the other hand, Sri. P. Shivakumar learned counsel appearing for the claimant argued in support of the judgment and award passed by the Tribunal insofar negligence is concerned. However, he contended that the quantum of compensation awarded taking into consideration income of the claimant as Rs. 5,000/- p.m., though the accident occurred during the year 2012. Further, considering the disability to an extent of 17% is also contrary to law. Though the doctor had assessed the disability to an extent of 50% to a particular limb, the Tribunal has taken only 17%. No compensation has been awarded towards loss of income during the laid up period. Hence, sought for enhancement of compensation.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties and other relevant records.
The records clearly disclose that due to the road traffic accident occurred between ambulance as well as the BMTC bus on 26-07-2012, the claimant has sustained compound fracture of tibia with vascular injury. He underwent surgery and also bone marrow instillation. The appellant-BMTC contended that due to the rash and negligent driving of the ambulance, the accident occurred. In view of repair of the Nelamangala-Bangalore Road, the width of the road was reduced to 8 feet After seeing the ambulance, the driver had stopped the bus on the left side of the road to allow the ambulance to proceed. However, the ambulance dashed against the BMTC bus. On the other hand, the driver of the ambulance in his evidence has deposed that while he was carrying a heart-patient to Jayadeva Hospital near Janapriya Gate, even after seeing the ambulance at a distance of 20 feet, the driver of the BMTC bus came in rash and negligent manner, came in the narrow road and dashed against the ambulance. The driver of the BMTC bus must give preference to the ambulance for the movement. The police have registered a case against the driver of the bus. The mahazar, IMV report and copy of the complaint and charge sheet clearly disclose that the police have charge sheeted the driver of the BMTC bus. The driver of the ambulance was having valid driving license as on the date of accident. He need not possess the hazardous vehicle license to drive the ambulance. The evidence on record clearly disclose that due to the negligence on the part 01 driver of BMTC bus the accident occurred. I find that there is no infirmity or irregularity in the finding 01 the Tribunal with regard to rash and negligent driving of the BMTC bus by its driver.
With regard to quantum of compensation is concerned, though the claimant claims that he was getting salary of Rs. 9,000/- per month, no document has been produced to substantiate the same. Though the salary certificate Ex.P9 has been produced, the author of the said salary certificate has not been examined. In the road traffic accident, the claimant has sustained compound fracture of the tibia and vascular injury. He has underwent debridement external fixator, subsequently undergone bone marrow instillation. Taking into consideration injuries sustained, compensation of Rs. 3,45,400/- has been awarded by the Tribunal. I feel that the compensation awarded is just and fair compensation. The claimant was inpatient for a period of 8 days. Thereafter, he has taken follow-up treatment. The doctor assessed the disability to an extent of 17% to the whole body. Taking into consideration income of the claimant as Rs. 5,000/- per month, applying the multiplier 18, as he was aged about 19 years, the Tribunal has awarded sum of Rs. 1,83,600/-. Further, he has to lead his remaining life with the disability of 17% to whole body. The injury will not come in the way of the claimant to drive the vehicle. Hence, the Tribunal has awarded Rs. 81,800/- towards medical expenditure, Rs. 40,000/- towards pain and suffering; Rs. 20,000/- towards attendant, food and transportation; a sum of Rs 20,000/ -towards future medical expenditure and a sum of Rs. 1,83,600/- has been awarded towards loss of income due to disability, which is just and fair compensation. The claimant has not made out a case for enhancement of compensation. Hence, the appeals filed by the BMTC as well as the claimant are required to be dismissed.
Accordingly, I pass the following:
ORDER
Both the appeals are dismissed.
The amount in deposit before this Court in MFA No. 579/2014 is directed to be transferred to Motor Accident Claims Tribunal, Bangalore.