IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE BELLUNKE A.S. M.F.A.NO.3025/2012 (MV) Between:
1. The Depot Manager, NWKRTC (KSRTC), Jamkhandi Depot, Pin : 587 301.
2. The Managing Director, NWKRTC, Central Offices, Gokul road, Hubli – 580 030 R.C. owner of NWKRTC Bus No. KA-29-F-821 ... Appellants (By Sri.F.S.Dabali, Adv.,) And:
1. Erappa, S/o. Rudrappa, Aged 33 years, Driver, R/o. Baragenahalli village, Tarikere Taluk, Chickmagalur District, Pin : 577 228.
2. Mallikarjun D.Patil, S/o. Devendrappa, Aged about 45 years, Driver of KSRTC bus No. KA-29-F-821, Badge No. 10292, Jamkhandi depot, Dist. Bagalkot, Pin : 587 301.
... Respondents (By Sri.K.S.Ganesha, Adv., for R1;
v/o dated 18.03.2013 notice to R2 is dispensed with.) ***** This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 15.07.2011 passed in MVC No.30/2010 on the file of the Senior Civil Judge, MACT, Kadur, Chikmagalur, awarding compensation of Rs.2,56,000/- with interest at 6% p.a. from the date of petition till the date of realization.
This MFA coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 15.07.2011 passed in MVC.No.30/2010 by the Senior Civil Judge, MACT, Kadur, Chikmagalur District, awarding compensation of Rs.2,56,000/- to the injured – petitioner. The appellants – NWKRTC who are respondents 2 and 3 have preferred this appeal to set aside the finding of the Tribunal regarding negligence and quantum awarded by the Tribunal.
2. Parties are referred to by their ranks as they were referred to before the Court below.
3. Brief facts leading to this appeal are as under:
On 11.08.2009, the petitioner was driving lorry bearing registration No.KA-40-1287 from Ranebennur to Chikmagalur. The lorry was loaded with sugar bags. It was driven in a modest speed on the left side of the road by observing all the traffic rules and regulations. At about 6.30 p.m., when the lorry reached near Anjaneyaswamy temple, on K.M. Road in Kadur taluk, a KSRTC bus bearing registration No. KA-29-F-821 driven by the first respondent in a rash and negligent manner, came with high speed, without observing traffic rules and regulations, from opposite side and dashed to the lorry driven by the petitioner. Consequently, the lorry driver sustained grievous injuries. The injured claimant was admitted to hospital for treatment. He had to spend huge money for his treatment. Therefore, a petition came to be filed before the MACT claiming compensation for the injuries suffered by the claimant and to recover compensation on all heads.
4. The claim petition was resisted by the respondents contending that the lorry driver himself was responsible for the accident, he was rash and negligent in driving the lorry and he had no driving licence to drive the vehicle. Therefore, the respondent – KSRTC sought to dismiss the petition with costs.
5. On the basis of the above pleadings, the Tribunal framed the following issues.
1. Whether the petitioner proves that he has sustained grievous injuries due to actionable negligent driving of KSRTC bus bearing registration No. KA-29-F- 821 by respondent No.1, in road traffic accident that took place on 11.08.2009 at about 18.30 hours near Anjaneyaswamy Temple on K.M.Road, Kadur Taluk ?
2. Whether the petitioner is entitled for compensation claimed ? If so, what amount ?
3. What decree or order ?
6. After trial, the Tribunal allowed the petition and awarded compensation of Rs.2,56,000/- to the petitioner. The said judgment and award has been questioned by the KSRTC on the following grounds :
It is contended that the lorry driver himself was rash and negligent in driving the vehicle. The road in question is down gradient, therefore, it was the lorry which came in high speed. Looking to the damage caused to the vehicle, it indicates that the lorry driver was negligent. The Tribunal has wrongly assessed the evidence on record and has given an erroneous finding on the point of negligence. It is further contended that having regard to the nature of injuries sustained by the claimant, compensation awarded by the Tribunal is excessive. There could not have been 25% disability having regard to the nature of injuries suffered. There is no evidence to prove the loss of future earning capacity. The petitioner is not completely disabled from continuing his profession. There is no evidence regarding the money spent at the time of taking treatment. The petitioner is not entitled for future medical expenses at Rs.30,000/- as awarded. Therefore, the finding of the Tribunal is erroneous and opposed to law and facts and liable to be set aside.
7. Heard the learned counsel for the appellants. The grounds of the appeal are reiterated.
8. The learned counsel submitted that merely because the driver was prosecuted, negligence cannot be attributed to him. The road in question was down gradient and the lorry was coming in a down gradient road and therefore it was in a high speed, he came to the wrong side i.e. right side and thereby hit the KSRTC bus. Therefore, the Tribunal could not have held that the driver of KSRTC bus was rash and negligent at the time of accident. As regards quantum is concerned, it is submitted that the award is excessive. There is no evidence for future medical expenses or loss of future earning capacity. There is no evidence regarding the actual income of the petitioner. Hence, the learned counsel prayed to set aside the judgment and award passed by the Tribunal.
9. After hearing the learned counsel for the appellants and on perusal of the records, the following points would arise for consideration in this appeal:
1. Whether the finding of the Tribunal that the accident occurred on account of the rash and negligent driving of the driver of the KSRTC bus is against the evidence on record ?
2. Whether the compensation awarded by the Tribunal is excessive ?
3. Whether the order passed by the Tribunal calls for interference at the hands of this Court ?
10. It is important to note that the lorry in question was loaded with sugar bags. The KSRTC bus was carrying only passengers. Keeping in mind the weight of the lorry, I find that though the lorry was coming in a down gradient road, that itself cannot be a ground to attribute negligence on the part of the lorry driver. It is important to note that the KSRTC bus driver has admitted in his evidence that immediately after the accident, he has not filed any complaint against the lorry driver alleging negligence. Moreover, he has been charge sheeted under Sections 279, 337 and 338 of IPC and Ex.P.7 – spot mahazar also supports the case of the petitioner. Looking to the damages that are caused to the lorry, according to the IMV report – Ex.P.6, it clearly goes to show that the bus driver was in high speed because he had to climb the up gradient road. It is also elicited in the cross examination of P.W.1 that a heavy vehicle which is coming in a down gradient road had to be driven in first or second gear and in that case, the speed of the vehicle will not exceed more than 20 kms. per hour. According to him, the left wheel of the lorry was on the tar road and there was sufficient space on the left side. He denied that there is a pot hole on the right side of the road. Probably, to avoid the pot hole, the possibility of the KSRTC driver going to his right side cannot be ruled out. If there was sufficient space on the left side of the lorry, there was no need for him to go to the right side and hit the bus. Therefore, the inference that can be drawn is that, in all probability, the accident must have occurred on account of rash and negligent driving of the driver of the bus. The finding of the Tribunal on the above said point does not call for any interference.
11. As regards the quantum of compensation is concerned, the doctor has been examined apart from the injured claimant.
12. As per the said evidence and x-ray report, it is clear that the petitioner has suffered fracture of tibia and fibula of right leg. He was also inpatient for considerable days. The evidence on record shows that the wound took about six months to heal up. Though the fracture was well-united, right ankle movement was restricted. He was advised to undergo one more surgery for removal of nails, which would require another Rs.30,000/-. Therefore, the Tribunal found that there was 25% disability. However, the Tribunal considering the age of the petitioner and admission of the doctor in the cross examination, found that there is permanent disability of 10% to whole body. Admittedly, these type of injuries though healed will result in some sort of restriction in the movement. Added to this, the claimant was a driver by profession. It certainly affects the capacity to drive vehicle for a long distance, which is also admitted by the doctor. That will diminish his earning capacity.
13. Having regard to the above said facts, I find that there are no justifiable grounds to reduce the compensation awarded. However, the learned counsel for the appellants has strenuously urged, that there is no material on record to show that the amount of Rs.30,000/- is required for future medical expenses. That aspect has to be addressed. But the doctor has stated that, that much amount is required for removal of the nails that were fixed to the bone of the petitioner. The doctor is from the same hospital where the petitioner was treated. Looking at the evidence adduced by him in the cross examination as well as in the examination in chief, I feel that there is exaggeration in his evidence. Having regard to the money already spent for medical expenses by the petitioner, i.e. Rs.50,000/-, I find that future medical expenses restricted at Rs.30,000/- is just and proper and does not call for interference.
14. However, the learned counsel for the appellants would submit that it is a future contingency and therefore future interest should not have been awarded on the said amount from the date of petition. Though the argument appears to be sound, but the Courts have consistently awarded future interest from the date of petition on the entire award amount without bifurcating the future medical expenses from the others. When we award future interest on that amount also, then there is no justification to contend that this Rs.30,000/- should be bifurcated and future interest should not be awarded.
15. Therefore, I find that on examining the material placed on record and the grounds urged in the appeal, the judgment and award passed by the Tribunal does not call for interference at the hands of this Court. Consequently, the point Nos.1 to 3 are answered in the negative.
The appeal is dismissed. The judgment and award dated 15.07.2011 passed in MVC.No.30/2010 by the Senior Civil Judge, MACT, Kadur, Chikmagalur District, awarding compensation of Rs.2,56,000/- to the injured – petitioner is hereby confirmed.
Registry to transmit the amount, if any, deposited before this Court to the Tribunal forthwith for disbursement and also transmit the records to the Tribunal, with a copy of this judgment.
(Sd/-) JUDGE Mgn/-