IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.3342 OF 2010 [MV] CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.5951 OF 2011 [MV] IN MFA 3342 OF 2010 [MV]:
BETWEEN DIVISIONAL CONTROLLER, KSRTC, MYSORE RURAL DIVISION, MYSORE, OWNER OF KSRTC BUS BEARING REGISTRATION NO.KA-01/F-8194, REP. BY ITS CHIEF LAW OFFICER, KSRTC, SHANTHINAGAR, BANGALORE. ... APPELLANT [BY SRI. ASHOK N.NAYAK, ADVOCATE] AND SRI. KRISHNASHETTY, S/O. RANGASHETTY, AGED ABOUT 47 YEARS, R/O. MURUKANANOWHALLY VILLAGE, NOW R/AT HETHAGOWDANHALLY VILLAGE, KASABA HOBLI, ARKALGUD TALUK. ... RESPONDENT [BY SRI.RAVIKUMAR N.R., ADVOCATE] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.10.2009 PASSED IN MVC NO.323/2008 (163/07) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT & MACT, ARKALGUD, AWARDING A COMPENSATION OF RS.1,82,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
* * * IN MFA 5951 OF 2011 [MV]:
BETWEEN SRI. KRISHNASHETTY, S/O. SRI. RANGASHETTY, AGED ABOUT 49 YEARS, R/AT MURUKANAHALLY VILLAGE, K.R.PET TALUK, NOW RESIDING AT HETHAGOWDANAHALLY VILLAGE, KASABA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT. ... APPELLANT [BY SRI.RAVIKUMAR N.R., ADVOCATE] AND THE DIVISIONAL CONTROLLER, KSRTC, MYSORE RURAL DIVISION, MYSORE, OWNER OF KSRTC BUS BEARING REGISTRATION NO.KA-01-F-8194. ... RESPONDENT [BY SRI. ASHOK N.NAYAK, ADVOCATE] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.10.2009 PASSED IN MVC NO.323/2008 (163/07) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AND MACT, ARKALGUD, IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * THESE MFAs COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.3342/2010 is filed by the KSRTC and MFA No.5951/2011 is filed by the injured/claimant. Both the appeals are directed against the Judgment and Award passed in MVC No.323/2008 on the file of the MACT at Arkalgud.
2. I have heard Sri. Ashok N.Nayak, learned counsel appearing for the Corporation and Sri. Ravikumar N.R., learned counsel appearing for the claimant.
3. The brief facts of the case are that;
On 08.04.2007 at about 8.30 a.m., when the claimant/appellant in MFA No.5951/2011 was proceeding by walk near RMC Market of K.R.Pet town after completing his work, the driver of a KSRTC bus bearing reg. No.KA-01/F- 8194 by driving the said bus in a rash and negligent manner, dashed against him. As a result of which he sustained grievous injuries to his head, eyes, both knees, ear and all over his body. It is the case of the claimant that he was earning Rs.7,000/- p.m. from the hotel and cloth business and due to the accidental injuries, he suffered permanent disability and is unable to do his business.
Before the Tribunal, the claimant examined himself as P.W.1 and got examined the doctor as P.W.2. Exs.P1 to 12 were marked in evidence. On behalf of the respondent, no witnesses were examined and no documents were got marked.
The Tribunal considering the evidence and material on record awarded a compensation of Rs.1,82,000/- with interest at the rate of 6% p.a.
4. It is the contention of the learned counsel appearing for the claimant that the total compensation awarded is not commensurate with the injuries and the disability suffered by the claimant. He contends that the Tribunal was not justified in assessing the total disability suffered with regard to the eyes at 25% though the doctor has assessed the disability at 70%. It is further contended that the income taken by the Tribunal at Rs.4,000/- p.m. is also on a lower side and the Tribunal has erred in deducting 1/3rd of the income towards his personal expenses. He submits that the age of the appellant was 45 years and therefore the multiplier adopted by the Tribunal is also on a lower side. He therefore, seeks to enhance the compensation by modifying the Judgment and Award passed by the Tribunal.
5. In the appeal filed by the KSRTC., it has been contended that though the Tribunal has come to the conclusion that there is no cogent material in support of the contention of the claimant for having sustained injuries to the eyes and brain, however, the Tribunal has assessed the disability at 25% considering the evidence of P.W.2, which is not proper. It is also contended that the disability certificate issued by the doctor is not supported by any X-ray or case sheet and therefore, the compensation awarded by the Tribunal is excessive and on a higher side.
6. The accident in question involving the KSRTC bus bearing reg. No.KA-01/F-8194 and the claimant sustaining injuries in the said accident owing to the actionable negligence on the part of the driver of the bus are not in dispute. According to the learned counsel appearing for the claimant, the injured/claimant was earning Rs.7,000/- p.m. from the hotel and cloth business. To substantiate the same, apart from the evidence of the injured there is no other corroborative piece of evidence adduced before the Tribunal. In the absence of any convincing evidence with regard to the income as stated by the claimant, the Tribunal was justified in taking the income at Rs.4,000/- p.m.
7. Ex.P7 is the wound certificate, wherein it is mentioned that the injured has suffered abrasion over the forehead, abrasion over the left cheek, abrasion over both the knees and small laceration over the lateral end of the right eye. It is further stated that the X-ray of the chest shows fracture of clavicle lateral end on right side.
8. According to P.W.2, the claimant visited his clinic on 06.06.2007 with a complaint of loss of vision after the road traffic accident. He has stated that the loss of vision is due to the injury he suffered to the brain, in the accident. He has issued a disability certificate which is marked as Ex.P12 stating that there is a visual disability to an extent of 70%. There is nothing elicited in the cross-examination so as to disbelieve or discard his evidence. Though the Tribunal has observed that no X-ray has been produced showing that the claimant has taken such treatment to the injuries to his eyes or brain, however it has been further observed that some medicine prescription and some bills shows about the treatment taken in respect of chest and eyes of the claimant. Considering the evidence of P.W.2 and contents of Exs.P7, 11 and 12, the Tribunal has assessed the disability with regard to the eyes at 25%, the same cannot be said to be erroneous. However, the Tribunal was not justified in deducting 1/3rd of the income towards personal expenses. The income of the claimant having been assessed at Rs.4,000/- p.m. and the disability at 25% and the appropriate multiplier being ‘14’, the claimant is entitled for a compensation of Rs.1,68,000/- [Rs.4,000 x 25% x 12 x 14] towards loss of future earning due to the disability as against Rs.1,04,000/- awarded by the Tribunal. Considering the nature of injuries and the disability suffered by the claimant, the compensation awarded towards pain and agony is enhanced from Rs.25,000/- to Rs.35,000/-. The compensation awarded towards medical expenses and loss of income during the treatment period is maintained. The Tribunal has awarded Rs.10,000/- each for unhappiness and shortening of life span on account of the injury. A sum of 35,000/- is awarded towards loss of amenities as against Rs.20,000/- awarded under the said head. In all, the claimant is entitled for a total compensation of Rs.2,71,000/- as against Rs.1,82,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER MFA No.3342/2010 is dismissed. MFA No.5951/2011 is allowed in part. The Judgment and Award dated 22.10.2009 passed in MVC No.323/2008 [163/2007] on the file of the Presiding Officer, Fast Track Court and MACT., Arkalgud is hereby modified.
The claimant in MVC No.323/2008 is entitled for a total compensation of Rs.2,71,000/- with interest at 6% p.a. from the date of petition till realization as against Rs.1,82,000/- awarded by the Tribunal. The KSRTC shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this Judgment.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/- JUDGE.
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