IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL NO.5693 OF 2013 (MV) C/W MISCELLANEOUS FIRST APPEAL No.2444 OF 2013 (MV) IN M.F.A.NO.5693/2013 BETWEEN HANUMANTHAPPA GIDDANAVAR S/O HAVALAPPA @ HANUMAPPA @ HALAPPA AGED ABOUT 43 YEARS OCCUPATION: CASTING WORK R/O 1ST MAIN, 1ST CROSS AK COLONY, HARIHARA, DAVANAGERE-577601.
(BY SRI. H.C.PRAKASHA, ADVOCATE) AND 1 . RAJKUMAR S/O SANGAPPA SAJJAN AGED ABOUT 44 YEARS R/O CHANDRAKANT KUMBAR ONI BHARAMAPUR GULBARGA-585 103 2 . THE DIVISIONAL CONTROLLER NEKRTC, GULBARGA DIVISION GULBARGA-585 105 … APPELLANT 3 . THE MANAGING DIRECTOR NEKRTC, SARIGE SADANA GULBARGA-585 105 4 . THE CHAIRMAN NEKRTC, INTERNAL INSURANCE CONSOLIDATED FUND SARIGE BHAVANA K H ROAD BANGALORE-560027 ... RESPONDENTS (BY SRI. F.S.DABALI, ADVOCATE FOR R2 TO R4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 8.1.2013 PASSED IN MVC NO.88/2010 ON THE FILE OF SENIOR CIVIL JUDGE, ADDITIONAL MACT, HARIHAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.2444/2013 BETWEEN 1 . THE DIVISIONAL CONTROLLER NEKRTC, GULBARGA DIVISION GULBARGA-585 105 2. THE MANAGING DIRECTOR NEKRTC, SARIGE SADANA GULBARGA-585 105 3 THE CHAIRMAN NEKRTC INTERNAL INSURANCE CONSOLIDATED FUND SARIGE BHAVANA K H ROAD BANGALORE-560027.
ALL THE A1 TO A3 REP. BY ITS CHIEF LAW OFFICER, NEKRTC, CENTRAL OFFICES, SARIGE SADANA, GULBARGE-585101.
(BY SRI. F.S.DABALI, ADVOCATE) AND HANUMANTHAPPA GIDDANAVAR … APPELLANTS S/O HAVALAPPA @ HANUMAPPA @ HALAPPA AGED ABOUT 50 YEARS RAJIVE FOUNDARY IN COASTING WORK R/O 1ST MAIN, 1ST CROSS AK COLONY, HARIHARA, DAVANAGERE-577601.
... RESPONDENT (BY SRI. H.C.PRAKASHA, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 8.1.2013 PASSED IN MVC NO.88/2010 ON THE FILE OF SENIOR CIVIL JUDGE & ADDITIONAL MACT, HARIHAR, AWARDING A COMPENSATION OF RS.4,77,124/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE TWO APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both claimant and the second respondent- Corporation are in appeal aggrieved by the quantum of compensation awarded in judgment and award dated 08.01.2013 in MVC No.88/2010 on the file of the Senior Civil Judge and Additional MACT, Harihar.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries suffered by the claimant in a road traffic accident. It is stated that on 05.09.2009 when the claimant was walking near St. Mary School at Harihar, at that time, a NEKRTC bus bearing Reg.No.KA-32/F-1531 came in rash and negligent manner and dashed to the claimant, due to which he sustained grievous injuries.
3. On issuance of notice, respondent Nos.2 to 4 appeared before the Tribunal and filed their objection statement denying the claim petition averments. Further it is contended that the accident occurred solely due to the negligence of the claimant.
4. The claimant examined himself as PW-1 and also examined three other witnesses as PW-2 to PW-4 apart from marking documents as Ex.P1 to P18. The respondent-Corporation examined the driver of the bus as RW-1.
5. The Tribunal on appreciating the materials placed on record, awarded a total compensation of Rs.4,77,124/- with interest at the rate of 6% per annum on the following heads:
Sl.No. Particulars Amount in (Rs.)
6. The claimant is in appeal in MFA No.5693/2013 not being satisfied with the quantum of compensation praying for enhancement, whereas, the respondent- Corporation is in appeal in MFA No.2444/2013 aggrieved by the excessive compensation awarded by the Tribunal.
7. Heard the learned counsel for the appellant and the learned counsel for the respondent-Corporation and perused the materials placed on record including the lower Court records.
8. Learned counsel for the claimant would submit that the income assessed by the Tribunal @ Rs.4,500/- is on the lower side. It is his submission that the claimant had produced Ex.P.8, salary certificate, where it indicated Rs.5,000/- as salary per month. The claimant was working at Rajeev Foundry. It is his submission that the claimant was earning more than Rs.5,000/-, but salary certificate is issued as Rs.5,000/- per month. Further the learned counsel for the claimant submits that the Tribunal assessed the whole body disability @ 30% against the evidence of Doctor who had stated that the claimant suffers 70% to 80% disability. Learned counsel further submits that claimant examined PW-2 and PW-3. PW-2 is Orthopedician, whereas PW-3 is Psychiatrist. The claimant had suffered head injury which resulted in Organic Personality change with psychosis. Therefore, the doctor on the basis of the Indian Disability Evaluation and Assessment Scale had opined that the claimant suffers from 70% to 80% disability, wherein the Tribunal has refused to consider such disability and it has considered the disability only @ 30%. It is also further contended that the compensation awarded on the other heads by the Tribunal is on the lower side.
9. Per contra, learned counsel for the respondent- Corporation submits that the compensation awarded is on the higher side which requires to be reduced when compared to the injuries suffered by the claimant. It is his submission that the claimant has stated in the claim petition as well as in his evidence affidavit that he is aged about 47 years, but the Tribunal has taken the age at 40 years based on the medical records. It is his submission that when the claimant himself has stated that he is aged 47 years, the Tribunal has committed an error in considering the age of the claimant as 40 years. Further the learned counsel submits that the compensation awarded under the other heads also are on the higher side and prays for reduction.
10. Having heard the learned counsel for the parties and on perusal of the materials on record, the only point that arises for consideration is;
Whether the compensation awarded by the Tribunal is just and fair compensation?
11. The answer to the above point would be in the Negative for the following:
R E A S O N S 12. The accident had occurred on 05.09.2009 involving bus bearing Reg.No.KA-32/F-1531 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation, whereas, the respondent- Corporation is in appeal on the ground that the Tribunal awarded excessive compensation.
13. The claimant states that he was working at Rajeev Foundry and he was earning Rs.10,000/- per month. But, the salary certificate Ex.P.18 produced by the claimant would indicate that he was earning salary of Rs.5,000/- per month. The Tribunal ignoring Ex.P.18, Salary Certificate, has assessed the claimant’s income at Rs.4,500/-, which is on the lower side. Even a coolie would earn more than Rs.5,000/- per month. Hence, there is no reason for the Tribunal to ignore Ex.P.18, Salary Certificate issued by the Harihar Heads. Therefore, I am of the view that the income of the claimant can be assessed at Rs.5,000/- per month.
14. The claimant had sustained fracture to 2nd, 3rd, 6th and 7th ribs and there is a fracture of right clavicle, due to which PW-2 stated that the claimant suffers 15% disability. The claimant has also suffered head injury, due to which PW-3 Doctor states that, “speech of the claimant is irrelevant, ideas of Auditory hallucinations present, poor concentration, impaired immediate and recent memory remote memory is patchy with difficulty. PW-3 Doctor has also deposed that the claimant has “Organic personality change with psychosis (Post Concussive head injury)”. He has opined that the claimant suffering from 70% to 80% disability.
15. The claimant has appeared before the Court and subjected himself for cross examination. During the cross examination he has answered the questions put without any difficulty. The Tribunal has recorded the findings that the claimant was able to understand the questions put in the cross examination and he has given answers. Further observed that even he has sworn to affidavit which would show that he is not having total mental disability. Therefore taking note of the injury, the doctors evidence and the treatment taken, the Tribunal rightly assessed the whole body disability at 30%, which does not call for interference.
16. Learned counsel for the respondent- Corporation submits that the Tribunal committed an error in taking the age of the claimant as 40 years, when he himself states that he is aged 47 years in the claim petition as well as in the affidavit filed in lieu of evidence. The Tribunal has taken the age of the claimant at 40 years based on the medical records. But, when the claimant himself states that he was aged 47 years, there is no reason for the Tribunal to take the age as mentioned in the medical records. Thus, I am of the view that the age of the claimant to be taken at 47 years for adopting the appropriate multiplier. If the age of the claimant is taken at 47 years, the appropriate multiplier would be ‘13’.
17. It is submitted by the learned counsel for the claimant that the claimant was inpatient for more than 22 days in three hospitals for the injuries suffered by him. Therefore, considering the gravity of the injuries suffered and treatment taken by the claimant, he would be entitled for another Rs.20,000/- towards pain and sufferings and Rs.10,000/- towards attendant charges and conveyance charges, in addition to the compensation awarded by the Tribunal. It is the further submission of the learned counsel for the claimant that due to injuries suffered, the claimant was unable to work for more than four months and therefore he is entitled for compensation under the head loss of income during the laid up period and the same has not been considered by the Tribunal. Considering the nature of the injuries, the claimant might not have worked during the treatment period and rest period and thereby sustained loss of income during the laid up period i.e., for a period of four months and therefore he is entitled for compensation @ Rs.5,000/- x 4 months = Rs.20,000/- under this head. Thus, the claimant is entitled for the following modified compensation.
enhanced compensation of Rs.5,18,124/- as against the compensation awarded by the Tribunal @ Rs.4,77,124/- with interest @ 6% per annum from the date of petition till realization.
The judgment and award of the Tribunal is modified to the above extent. Accordingly, both the appeals are allowed in part.
The amount in deposit in MFA.No.2444/2013 along with lower Court records be transmitted to the concerned Tribunal, forthwith.
SD/- JUDGE Kmv/-