- 1 - NC: 2025:KHC:12026-DB MFA No.7208/2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.7208/2014 (MV-I) BETWEEN: HEMA SUBHASH AGED ABOUT 29 YEARS DAUGHTER OF SUBHASH NARAYANAN R/AT E 603, SJR BROOKLYN ITPL, MAIN ROAD KUNDALAHALLI COLONY BANGALORE – 560 037 …APPELLANT (BY SRI S.SREEVATSA, SENIOR ADVOCATE FOR SMT.UDITHA RAMESH, ADVOCATE) AND: 1. B M T C MANAGING DIRECTOR K H ROAD, BANGALORE-560 027 (OWNER OF THE BMTC VOLVO BUS NO.KA-01-FA-1946) 2. MOHAMMED RIYAZ AGED ABOUT 37 YEARS S/O SHAFIULLA SAB R/AT ‘B’ BLOCK R P ROAD, GUDIBANDE TALUK CHIKKABALLAPUR DISTRICT - 562 101 (DRIVER OF BMTC BUS) … RESPONDENTS (BY SMT.H R RENUKA, ADVOCATE FOR R1; R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ENHANCE THE COMPENSATION AWARDED BY JUDGMENT DATED 19.06.2014 Digitally signed by NARAYANA UMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:12026-DB MFA No.7208/2014 PASSED IN MVC NO.7836/2010 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, BANGALORE. THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 27.02.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE C.M. POONACHA CAV JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Questioning the adequacy of compensation awarded to her, claimant in MVC.No.7836/2010 on the file of Small Causes Court and XXVI ACMM and Additional MACT, Bengaluru, has preferred this appeal. 2. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal. 3. On 3.2.2010 when the claimant was traveling in BMTC bus bearing registration No.KA-01-FA-1946 the said bus stopped at Kundalahalli bus stop to de-board the passengers. When the claimant was in the process of de-boarding respondent No.2/the driver of the bus without any indication suddenly moved the bus closing the door in great acceleration, consequent to which the claimant fell down and left rear wheel - 3 - NC: 2025:KHC:12026-DB MFA No.7208/2014 of the bus ran over her left leg. She suffered multiple fractures in her left leg. Initially she was shifted to Vydehi Hospital. From there she was shifted to Manipal Hospital, Bengaluru and was treated there as inpatient between 03.02.2010 and 11.02.2010. From there she was shifted to Sparsh Hospital where she was treated as inpatient from 11.2.2010 to 1.3.2010 and her left leg above the knee was amputated. Respondent Nos.1 and 2 were the owner and driver of the offending bus. 4. The claimant filed MVC No.7836/2010 against the respondents claiming compensation of `2,33,00,000/- contending that due to the accidental injuries she has suffered permanent physical disability, immeasurable pain and suffering, loss of earnings etc. She further contended that she has also suffered loss of amenities, marriage prospects and had to spend huge amount on medical expenses. She claimed that respondent Nos.1 and 2 being the owner and driver of the bus are liable to compensate the damages. 5. Respondent No.2 did not contest the petition. Respondent No.1 contested the petition denying the actionable negligence on the part of respondent No.2. Respondent No.1 - 4 - NC: 2025:KHC:12026-DB MFA No.7208/2014 contended that the claimant herself hurriedly without adhering the instructions tried to de-board the moving bus and suffered the injuries. Further, respondent No.1 denied the age, occupation, income of the claimant and its liability to pay the compensation. 6. On behalf of the claimant, PWs.1 to 4 were examined and Exs.P1 to P33 were marked. On behalf of the respondents, conductor of the bus was examined as RW.1 and respondent No.2 was examined as RW.2. 7. The Tribunal on hearing the parties, by the impugned judgment and award held that the accident and consequential injuries to the claimant occurred due to the actionable negligence on the part of the driver of the bus. The Tribunal based on the evidence of PW.1/claimant and PW.2/doctor who treated the claimant assessed the permanent physical disability of the claimant at 80% to the whole body. The Tribunal held that though there was such permanent physical disability, her services were continued and thereby there was no loss of future earnings. Thus, did not award any compensation on the head of loss of future earnings. - 5 - NC: 2025:KHC:12026-DB MFA No.7208/2014 8. The Tribunal in all awarded compensation of `8,30,000/- on different heads as follows: Sl. No Particulars Amount in (````) 1 Pain and suffering 75,000/- 2 Medical expenses 2,00,000/- 3 Attendant charges, nutritious expenses and transportation charges 15,000/- 4 Loss of income during laid up period 1,75,000/- 5 Loss of amenities and future happiness 1,00,000/- 6 Loss of marriage prospects 1,25,000/- 7 Future medical expenses 1,00,000/- 8 Purchase of artificial leg 40,000/- Total 8,30,000/- 9. The claimant has challenged the said award in the above appeal questioning the adequacy of compensation. Submissions of Sri S.Sreevatsa, learned Senior Counsel for Smt.Uditha Ramesh, learned Counsel on record for the appellant/claimant: 10. The evidence on record shows that the claimant has suffered 100% permanent physical disability and she had spent lot for medical expenses. Hence, the compensation awarded on the head of medical expenses is on the lower side. The compensation awarded towards future medical expenses is on the lower side. The compensation awarded towards pain and sufferings, attendant charges, loss of income during laid up - 6 - NC: 2025:KHC:12026-DB MFA No.7208/2014 period, loss of amenities and loss of marriage prospects is on the lower side. Hence appeal be allowed. Submissions of Smt H.R.Renuka, learned counsel for respondent No.1/BMTC: 11. PW.1 in her cross-examination has clearly admitted that she was not terminated from the service due to the alleged disability. Therefore, the Tribunal was justified in not awarding any compensation on the head of loss of future earnings. PW.1 admitted in her cross-examination that a sum of `6,00,000/- spent towards medical expenses was reimbursed to her by her employer. Therefore, the claimant is not entitled to any further compensation on the head of medical expenses and the Tribunal was justified in deducting the said amount from the medical expenses incurred by the claimant. The compensation awarded on all the other heads is just one. 12. In support of her submissions, she relied on the following judgments: i. Andhra Pradesh State Road Transport Corporation, rep., by its M.D., v. Sri Rathnakar1; ii. New India Assurance Co.Ltd. v. Manish Gupta2 iii. Krishna & Ors. v. TEK Chand & Ors.,3 1 ILR 2014 KAR 6083 2 2013 (1) Kar.L.J 624 3 SLP(C) No.5044/2019 DD 05.02.2024 - 7 - NC: 2025:KHC:12026-DB MFA No.7208/2014 iv. Helen.C.Rebello v. Maharashtra S.R.T.C.4 13. On examining the submissions of both side and the records, the question that arises for consideration is “whether the compensation awarded by the Tribunal under the impugned award is just and fair one?” Analysis 14. None of the respondents have challenged the finding of the Tribunal that the accident and consequential injuries to the claimant occurred due to actionable negligence on the part of respondent No.2 in driving the bus bearing registration No.KA-01-FA-1946. They have also not challenged the finding of the Tribunal that claimant has suffered 80% permanent physical disability to her whole body and she is not married. Even the finding that under Ex.P23 claimant spent `4,68,574/- towards medical expenses is not disputed. 15. The evidence of claimant and PW.2 shows that the left leg of the claimant above knee was amputated. The evidence of PW.2 shows that when he examined the claimant on 18.2.2012 he found the following: a. Restricted movement of the limbs requiring constant support while walking 4 (1999) 1 SCC 90 - 8 - NC: 2025:KHC:12026-DB MFA No.7208/2014 b. Finds difficulty in activities like sitting and standing for short periods, fast walking, climbing stairs and using Indian toilet, c. Back pain and pain in the stump d. Hip and Knee pain due to excessive load on the hip joint while walking. e. Skin lesions and calluses in the stump. f. Gets headache often and depression. g. Unable to concentrate on things. h. Giddiness. i. Emotional instability. 16. The evidence on record shows that the claimant was treated as inpatient in Manipal Hospital between 3.2.2010 and 11.2.2010 and in Sparsh Hospital between 11.2.2010 and 1.3.2010, in all for a period of 30 days. Since PW.1 herself admitted in her cross-examination that her services were continued by her employer, the Tribunal was right in holding that she has not suffered loss of future earnings. However, having regard to the evidence of PWs.1 and 2, it can be considered that at least for six months she would not have attended to her duties. The finding of the Tribunal that the monthly income of the claimant at `35,000/- is not under challenge. Therefore, the Tribunal ought to have awarded six months salary by way of loss of income during laid up period i.e., `2,10,000/- (`35,000/-x6). - 9 - NC: 2025:KHC:12026-DB MFA No.7208/2014 17. Considering the nature of injuries, period of hospitalization and treatment underwent, the compensation of `75,000/- awarded on the head of pain and sufferings is on the lower side and the same is re-assessed at `2,00,000/-. 18. Similarly, considering 30 days hospitalization of the claimant and her medical condition, the Tribunal should have awarded at least `1,000/- per day towards attendant charges, diet and transportation charges, which in all comes to `30,000/-. 19. The claimant has lost her one leg above knee. She was aged hardly 25 years at the time of unfortunate accident. Due to such loss of one leg above knee, she would not be able to enjoy the amenities like any other normal person of her age for her whole life. Therefore, the compensation awarded on the head of loss of amenities needs to be enhanced to `2,00,000/-. 20. Due to such permanent physical disability, the claimant lost her marriage prospects. Under similar circumstances, the Hon'ble Supreme Court in the cases of Kajal v. Jagdish Chand5, and Ayush v. Reliance General 5 (2020) 4 SCC 413 - 10 - NC: 2025:KHC:12026-DB MFA No.7208/2014 Insurance Co.6 has awarded compensation of `3,00,000/- towards loss of marriage prospects. Awarding the same amount in this case also meets the ends of justice. 21. There is no dispute that the claimant underwent fixation of prosthesis. For purchase of artificial limb the Tribunal has awarded `40,000/-. But claimant contends that prosthesis costs `18,96,620/-. PWs.3 and 4, more particularly PW.4 did not speak about she purchasing the same. Before this Court the claimant filed I.A.No.1/2017 to adduce additional evidence. This Court by order dated 20.01.2020 allowed the said application permitting the additional evidence and directed the Tribunal to record further evidence of the claimant and submit the records. Pursuant to the said order, the Tribunal examined PW.1 further and marked Exs.P34 and P35. Ex.P34 is the receipt dated 21.10.2014 issued by Ottobock for `6,03,703/- for purchasing prosthesis and its accessories between 10.07.2010 and 28.10.2014. Ex.P35 is the note dated 29.09.2015 issued by one Dr.Ashok Raj Koul, Chief Plastic Surgeon of Sparsh Hospital stating that claimant is required to 6(2022) 7 SCC 738 - 11 - NC: 2025:KHC:12026-DB MFA No.7208/2014 undergo another medical procedure to cover her stump with a free microvascular latissimus dorsi myocutaneous flap and the said operation including hospital admission charges approximately costs `4,00,000/-. 22. In this case, the impugned judgment is passed on 19.06.2014. Out of `6,03,703/- shown in Ex.P34, only (`20,000/- + `39,900/-) `59,900/- was spent subsequent to the judgment. So whatever was spent on prosthesis prior to the judgment was `5,43,803/-. PW.1 in her cross-examination dated 12.01.2012 in page 11 admitted that she has received `6,00,000/- towards her medical reimbursement from her company. As per Ex.P34, the total amount spent by her after her cross-examination and evidence was (`37,900/- + `50,000/- + `20,000/- + `39,900/-)= `1,47,800/-. At the most, she will be entitled to the said amount as medical expenses incurred after her first tendered evidence and the impugned judgment. 23. So far as the medical expenses incurred prior to her first time deposition, claimant relied on Exs.P12, P14 to P20 and P23/medical bills and three claims settlement advices issued by Medi Assist. In Ex.P23, two documents related to the - 12 - NC: 2025:KHC:12026-DB MFA No.7208/2014 settlement of the bills of the Manipal Hospital and one related to the settlement of the bills of Sparsh Hospital. Those documents show that against `6,12,294/- claimed by the claimant, the said Insurance Company settled only `6,00,000/-. The Tribunal without noticing all the three advices, looked into only the claim settlement advice dated 05.05.2010 and opined that out of `4,68,574/-, the insurance company has settled `2,70,000/- therefore, only `1,68,574/- is payable and rounding that to `2,00,000/-, awarded `2,00,000/- towards medical expenses. 24. In this regard, the larger bench of the Hon’ble Supreme Court in paras 12 and 13 of the judgment in Sebastiani Lakra & Ors. v. National Insurance Company Ltd. & Another7 held as follows: “12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ 7 (2019) 17 SCC 465 - 13 - NC: 2025:KHC:12026-DB MFA No.7208/2014 under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased perform in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. 13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc. The tortfeasor cannot take advantage of the foresight and wise financial investments made by the deceased.” (Emphasis supplied) 25. In this case also, the claimant earned the benefit of such reimbursement from Medi Assist as a return for investment made by her on paying premium to the said insurance company towards medical insurance policy. The company has reimbursed the same under its contractual liability for the consideration received from her. That is not a gratuitous payment. Therefore, the Tribunal committed error in - 14 - NC: 2025:KHC:12026-DB MFA No.7208/2014 awarding only `2,00,000/- towards medical expenses on adjusting the payments made by the insurer. 26. In Krishna’s case referred to supra, relied on by learned Counsel for respondent No.1/BMTC, the question was whether the monetary benefit received by the family of the deceased employee from the employer under Haryana Compassionate Assistance to Dependents of Deceased Government Employees, Rules, 2006 could be deducted from the compensation computed under MV Act. It seems that was an exgratia payment made by the employer to the family of the deceased employee under the said Rules and not under contractual liability like insurance contract. 27. Under Ex.P23 only the hospital charges were claimed. Whereas Exs.P16 to P18 show that pending the claim petition itself the claimant had availed the prosthesis. The records further show that she also incurred other medical expenses other than the one claimed under Ex.P23. The payment of `6,00,000/- made by the employer meets the said expenses and not the one covered under Ex.P23. Therefore the judgment in Krishna’s case referred to supra, exonerates - 15 - NC: 2025:KHC:12026-DB MFA No.7208/2014 respondent No.1 for the payment of the said `.6,00,000/-, but not the one covered under Ex.P23. 28. In the light of the larger Bench judgment in Sebastiani Lakra’s case referred to supra, the judgments in Rathnakar’s case and Helen C.Rebello’s case do not advance the case of respondent No.1 so far as the claim under Ex.P23. Therefore the medical expenses awarded by the Tribunal has to be enhanced from `2,00,000/- to `6,00,000/-. 29. Though in Ex.P35 it is stated that claimant needs `4,00,000/- to undergo another surgery, the author of the said document was not examined. PW.2 the only doctor examined by the claimant does not speak about she requiring future surgery or her future medical expenses. However, considering the material on record the Tribunal has awarded `1,00,000/- on the said head and the same needs to be maintained. 30. The Tribunal awarded `40,000/- for purchasing artificial limbs on the ground that the claimant had sought the expensive high-end artificial limb, whereas she can go for Jaipur Artificial limb which are available at reasonable/nominal costs. The evidence on record shows that claimant was required to change the artificial limbs at least five to six times - 16 - NC: 2025:KHC:12026-DB MFA No.7208/2014 during her life time as she was aged hardly 25 years at the time of the accident. At that rate, it would be just to award `2,00,000/- on the said head. Therefore the just compensation payable is as follows: Sl. No. Particulars Amount in (````) 1 Pain and suffering 2,00,000/- 2 Medical expenses 6,00,000/- 3 Diet, attendant charges and transportation expenses 30,000/- 4 Loss of income during laid up period 2,10,000/- 5 Loss of amenities 2,00,000/- 6 Loss of marriage prospects 3,00,000/- 7 Future medical expenses 1,00,000/- 8 Purchase of artificial leg 2,00,000/- Total 18,40,000/- Less: Awarded by the Tribunal 8,30,000/- Enhancement 10,10,000/- 31. The enhanced compensation shall carry interest at 6% p.a. payable by respondent No.1/BMTC. The appeal deserves to be allowed in part. Hence, the following: ORDER i. The appeal is allowed in part. ii. The claimant/appellant is entitled to enhanced compensation of `10,10,000/- with interest thereon at 6% per annum from the date of petition till its realization. - 17 - NC: 2025:KHC:12026-DB MFA No.7208/2014 iii. Respondent No.1/BMTC shall deposit the enhanced compensation before the Tribunal within six weeks from the date of receipt of copy of this order. iv. On such deposit, the Tribunal shall digitally release the said amount to the claimant on furnishing required documents. v. Transmit the trial Court records to the Tribunal. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (C.M. POONACHA) JUDGE ND,KSR List No.: 19 Sl No.: 1