IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE K.SOMASHEKAR M.F.A.No.409 OF 2015 (MV) BETWEEN:
The Managing Director, NWKRTC, Central Office, Gokul Road, Hubli-580 030, But wrongly shown as Kempegowda Bus Stand, Central Division, Tank Bund Road, Subashnagar,Bengaluru, In the Cause title, (R.C.Owner of NWKRTC Bus Bearing Reg No.KA-25-F-2865) Represented by its Chief Law Officer.
(By Sri.F.S.Dabali, Advocate) AND:
... Appellant Bhaskar M.S, S/o. Shivanna M.H, Aged about 33 years, Residing at No.606, 10th A Main, III Stage, IV Block, Basaveshwaranagar, Bengaluru-560 079. ... Respondent (By Sri. D.S.Sridhar, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 16.09.2014 passed in MVC No.3851/2013 on the file of the XVIII Additional Judge, Court of Small Causes, Member, MACT-4, Bengaluru, awarding compensation of Rs.3,74,631/- with interest @ 6% p.a from the date of petition till the date of deposit.
This MFA coming on for Hearing, this day, the court delivered the following:-
JUDGMENT This appeal has been preferred by the Managing Director, NWKRTC, Hubli, against the judgment and award passed by the learned MACT (‘the Tribunal’ for short) in MVC No.3851/2013 dated 16.09.2014 by awarding a sum of Rs.3,74,631/- with interest at 6% p.a. from the date of petition till the date of depositing the amount.
2. The factual matrix of the appeal are as under:-
On 15.06.2013 at about 11.30 p.m., while the claimant was proceeding on his motor cycle bearing Registration No.KA-02 EJ-9757 from 4th Cross, Subramanyanagar to Basaveshwarnagar, Bangalore, when the claimant reached Dr.Rajkumar Road in front of Sugama Tours and Travels, at that time, the driver of the offending NWKRTC bus bearing registration No.KA-
25 F-2865 came from North to South direction in the aforesaid road with high speed and in a rash and negligent manner, the said offending bus dashed against the petitioner. Due to this impact, the claimant fell down and sustained injuries. Subsequently, he took treatment in the Hospital and also spent huge amount for his treatment due to sustenance of injuries.
3. It is contended by the claimant in the claim petition that he was aged about 31 years at the time of accident and he was working as a System Administrator in Crystal Info Services, Rajajinagar, Bangalore, and was drawing a salary of Rs.25,000/- per month. But for the sustenance of injuries due to the accident occurred on 15.06.2013, he sustained loss of earnings. Hence, he filed the claim petition before the Tribunal seeking compensation.
4. After service of notice, the Respondent – owner of the offending bus appeared through its counsel and filed the written statement in detail by denying the averments made in the claim petition filed for seeking compensation. It is further contended in the detailed objection statement that on 15.06.2013 when the driver of the offending NWKRTC bus was driven as per the scheduled trip from Hubli to Bangalore cautiously and also slowly on the left side of the road by following all the traffic rules and regulations, but in front of Sugama Tours and Travels at that point of time, the claimant who came from the cross road on his motor cycle as stated supra, in a rash and negligent manner with a terrific speed, because of his negligence that accident occurred and he sustained injuries. This contention was taken by the Respondents to file the objections to resist the claim petition. Therefore, the driver of the offending vehicle is not at all responsible in causing the accident as narrated in the claim petition.
5. Based upon the pleadings put forth in the claim petition, issues have been framed by the Tribunal. Subsequently, the claimant has got examined himself as PW-1 and the Doctor who treated him was also examined as PW-2. On behalf of the petitioner, he got marked Exs.P1 to P18. On behalf of the Respondent, the driver of the offending bus was examined as RW-1 and he did not produced any documentary evidence.
6. On the basis of the evidence adduced by the claimant for seeking compensation that the Tribunal heard the arguments of both the parties and also on evaluation of the evidence of PWs 1 and 2 and so also the documents produced at Exs.P1 to P18, the Tribunal awarded compensation in a sum of Rs.3,74,631/- with interest at 6% p.a. The same has been challenged by the Respondent in this appeal by urging various grounds.
7. Learned counsel for the appellant in this appeal has taken me to the evidence of PW-1 that at the time of accident occurred he was working as a System Administrator at Crystal Info Services, Rajajinagar, Bangalore, in a private unit and he was drawing the salary of Rs.25,000/- per month, but due to the accidental injuries, he could not attend to his work and lost the income. Though, PW-1 had partly established the evidence seeking compensation, but no material document regarding his salary has been produced in the claim petition. In spite of the same, the Tribunal awarded the compensation in a sum of Rs.3,74,631/- with interest at 6% p.a. Hence, the compensation awarded by the Tribunal is exorbitant without looking into the evidence of RW-1 and so also, on the issue of rash and negligence committed by PW-1 being the victim/injured.
8. It is further contended by the learned counsel for the appellant that the concept of rash and negligence on the part of the claimant has not been appreciated by the Tribunal in a proper perspective manner. Therefore, loss of earnings for the claimant as he contended for claiming compensation has not been established by placing cogent evidence both oral as well as documentary evidence. Therefore, in this appeal, it requires to be looked into the entire materials which are placed by the claimant i.e., Exs.P1 to P18.
9. In the second limb of arguments advanced by the learned counsel for the appellant, it is contended that the compensation awarded under ‘loss of amenities and happiness’ at Rs.40,000/- and ‘loss of future earnings due to disability’ Rs.96,000/- is in duplication, as the same is reflected in para-22 of the impugned judgment which is challenged in this appeal, but the reason assigned by the Tribunal for awarding compensation at Rs.3,74,631/- with interest at 6% p.a. appears to be exorbitant. It is further contended that PW-2 being the Doctor who had been examined on behalf of the claimant has deposed that the claimant has permanent disability at 40% to the right leg and 13% to the whole body, but this aspect has not been properly appreciated by the Tribunal. Therefore, in this appeal it requires re-appreciation of the evidence of PW-1 and PW-2, mainly the evidence of PW-1 who is the victim who filed the claim petition before the Tribunal seeking compensation but there was rash and negligent even on the part of the claimant but the same has not been considered by the Court below for awarding compensation. The sketch drawn by the concerned authority, which is placed on record indicates the negligence even on the part of the injured-claimant and the same has also not been properly considered by the Tribunal for awarding compensation.
10. Hence, on these grounds learned counsel for the appellant is seeking intervention in this appeal relating to the judgment and award passed by the Tribunal by re-appreciating the evidence of PWs 1 and 2 and sought for modification of the compensation amount awarded in the claim petition.
11. Per contra, learned counsel for the Respondent-claimant has taken me through the evidence of PW-1 who is the victim-injured. PW-1 had been subjected to adduce the evidence and in support of his contention, PW-2 Dr.C.V.Kumar, who given the treatment to him and also the Doctor has stated in the evidence that the claimant is having permanent disability at 40% to the right leg and 13% to the whole body. To that effect, the petitioner has produced the documents at Ex.P7 – wound certificate, Ex.P8-
Discharge Summary Report , Ex.P14 – X-rays, Ex.P16 – Inpatient Record relating to the victim and Ex.P18 - 6 X- rays. These are all the material documents produced by the claimant and same have been appreciated by the Tribunal and awarded compensation. Therefore, in this appeal, it does not arise for any interference in the judgment and award passed by the Tribunal and the same appears to be just and reasonable. Hence, he prays for dismissal of the appeal.
12. In the context of these contentions taken by the learned counsel for the appellant and learned counsel for the Respondent in this appeal are concerned, it is relevant to look into the evidence of PW-
1 as he being the victim who sustained accidental injuries on 15.06.2013, at about 11.30 p.m., wherein he was proceeding on his motor cycle, as the accident had occurred on Dr.Rajkumar Road, Rajajinagar, Bangalore, in front of Sugama Tours and Travels, as the driver of the offending NWKRTC bus came on the aforesaid road with high speed and in a rash and negligent manner, hit against the petitioner, due to this impact, he fell down and sustained the following injuries:-
(i) cut lacerated wound present over left eyebrow measuring 3 x 1 cm, (ii) cut lacerated wound over upper lip mucosa for 2 x 2 cm (iii) right leg tenderness, deformity, protrusion present.
13. PW-2 being the Doctor who treated the claimant has deposed that on 16.06.2013 with a history of road traffic accident that occurred on 15.06.2013 at about 11.30 p.m., wherein, he had given treatment to the injured as he noticed that Type-II compound comminuted fracture of both bones right leg lower 1/3rd, the claimant was operated for wound debridement intra modullary nailing right leg. PW-2 has specifically stated that he advised the claimant for removal of implants which costs a sum of Rs.25,000/- to be incurred and in a recent examination it is deposed by PW-2 that the claimant was having complaints of pain and swelling over right leg and ankle, difficulty in squatting and sitting cross legged, difficulty in climbing and running. Therefore, PW-2 who subjected to examine the victim and also provided treatment to him and he assessed the 40% disability of the right leg and 13% to the whole body of the victim, wherein he has produced inpatient record and so also recent examination report and 6 X- rays of the petitioner at Exs.P16 to P18. These are the documents which have been produced by the petitioner to establish his case against the Respondent for seeking compensation which is awarded in this appeal, 14. But in para-19 of the impugned judgment, it is specifically revealed that the claimant was working as System Administrator in a private firm and he was drawing the salary of Rs.25,000/- per month and due to accidental injuries he could not attend to his work and also lost his income. PW-2 being the Doctor who had given treatment to the injured has also stated that 40% disability to the right leg of the injured and 13% to the whole body.
15. Having gone through the evidence of PW-1 and PW-2, so also the documents which are produced by the claimant at Exs.P1 to P18 are concerned, it is opinied that the Tribunal had appreciated the entire evidence for assessing the disability of the injured and also assessing the loss of income after he met with an accident. Therefore, in this appeal it does not call for any interference.
16. It is the contention of the appellant that there is also rash and negligent driving even on the part of the claimant. To substantiate the same, it is noticed that even though, RW-1 being the driver of the aforesaid NWKRTC bus was examined, but no documents have been produced to support their written statement filed for resisting the claim petition by the injured seeking compensation. In this appeal, the sketch drawn by the concerned authority shows that it is on the part of the negligence on the driver of the offending bus, a crime was registered against him.
17. As regards the amount of compensation awarded under the heads ‘ loss of amenities and happiness’ and ‘loss of future earnings due to disability are concerned’, no evidence adduced by PW-1 for the to substantiate the same. In view of the injuries suffered by the claimant, the Tribunal was right in awarding the compensation under the aforesaid two heads and there is no duplication of the amount awarded.
18. Having gone through the evidence of PWs 1 and 2 as well as documents produced by the claimant as per Exs.P1 to P18 are concerned, that the reliance placed by the learned counsel for the appellant in 1988 ACJ 142 relating to the concept of contributory negligence, but in this reliance it reveals that there was collusion between the lorry and scooter resulting in death of the rider of the scooter. But in the present case on hand, the claimant who sustained injuries which indicates in his evidence so also the documents produced by him is at Ex.P7- wound certificate, Ex.P8- Discharge summary report and so also that Exs,P14 – 2 X-rays – Ex.P18 - 6 X-rays have been subjected to provide treatment to him.
19. Therefore, the ratio of judgment relied upon by the learned counsel for the appellant relating to concept of contributory negligence required to be considered in this appeal for seeking intervention of the award passed by the Tribunal which has been challenged in this appeal does not arise.
20. For the aforesaid reasons, the appeal requires to be rejected as devoid of merits. Accordingly, I proceed to pass the following order:-
(i) Appeal preferred by the appellant- Managing Director, NWKRTC, Hubli, is hereby dismissed.
(ii) Consequently, the judgment and award passed by the Tribunal in MVC No.3851/2013 dated 16.09.2014 is hereby confirmed.
(iii) If any amount in deposit in this appeal shall be transmitted to the Tribunalforthwith along with L.C.Rs.
SD/- JUDGE Srl.