IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.3732/2015 (MV) BETWEEN 1. KARNATAKA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS, MANAGING DIRECTOR "TRANSPORT HOUSE" CENTRAL OFFICE K.H.ROAD, SHANTHINAGAR, BENGALURU - 560027 THROUGH BY ITS CHIEF LAW OFFICER 2. THE DIVISIONAL CONTROLLER DAVANGERE DIVISION, KSRTC, DIVISIONAL OFFICE, DAVANGERE. ... APPELLANTS (BY SRI G LAKSHMEESH RAO, ADVOCATE) AND SOMANNA GOUDA SON OF BASANA GOUDA PATIL AGED ABOUT 25 YEARS, RESIDING AT NO. 34, C/O SRINIVASA, 3RD CROSS, LAVAKUSHA NAGAR, L.G. RAMANNALAYOUT, LAGGERE, BENGALURU - 560058. .. RESPONDENT (BY SRI S C INGALAGI, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:9.1.2015 PASSED IN MVC NO.949/2014 ON THE FILE OF THE 23RD ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES AND 21ST ACMM AND MACT, BENGALURU, AWARDING A COMPENSATION OF RS.3,14,798/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT AND DISMISS THE CLAIM PETITION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by KSRTC is directed against the judgment and award dated 9.1.2015 passed in MVC No.949/2014 by the XXIII Additional Small Causes Judge, Court of Small Causes and XXI ACMM and MACT, Bengaluru, (SCCH-25).
2. In order to avoid confusion and overlappings, parties are, hereinafter, referred to with reference to their respective rankings as stood in the Tribunal.
3. The Incident occurred on 1.11.2013 at about 2.30 a.m. The petitioner was traveling in KSRTC bus bearing Reg.No.KA.17.F.1411 from Bangalore to Davanagere on NH4, at that time, the bus was driven in a rash and negligent manner and dashed against the lorry, because of which, he sustained injuries. Immediately, he was shifted to Hiriyur Hospital and then to District Hospital, Chitradurga and then to Hospital at Bailahongala, wherein he took treatment as inpatient from 1.11.2013 to 6.11.2013. A case was registered against the driver of the bus which was driven in rash and negligent manner caused accident in Crime No.337/2013 for the offence punishable under sections 279, 337 and 304(A) of IPC. Petitioner was aged about 25 years and working as a Designer at Dynamo Electro Controls, Bangalore and he seeks compensation under various heads.
4. Corporation contended that the petition was not maintainable and there was no rash and negligent driving insofar as bus is concerned.
5. Based on the necessary materials, the learned Member framed issues and considered the accident, injury, negligence, disablement and entitlement of compensation.
6. Petitioner got himself examined as PW-1 and that of the Doctor who has treated the petitioner as PW-2 and got marked 10 documents as Exs.P1 to P10 including FIR, statement, sketch, IMV report, discharge summary and related documents. On the other hand, respondents have examined one witness as RW1.
7. The Tribunal, after considering oral evidence and materials available on record, taking the monthly income of the petitioner at `12,000/- per month with disability at 10%, has allowed the claim petition, granting a compensation of `3,14,798/- under different heads with interest at 6% p.a. from the date of petition till the date of deposit. The compensation awarded by the Tribunal under different heads is as under:
8. Aggrieved by the same, the claimant has presented this appeal seeking enhancement.
9. The learned counsel for appellants would submit that in the examination, before the Tribunal, the petitioner has admitted that he was not able to attend his work from 1.11.2013 to 7.2.2014 and he did not get salary. However, in the cross examination he admits that after leaving the job in the present Company he joined Lotus Company. At the same time, there is no allowance granted to the petitioner for the laid up period.
10. At the same time, learned counsel for the appellants pointed out that, if the petitioner had admitted in the cross- examination that he was working at Lotus Company in which event his first submission of not working has no basis.
11. In this connection, learned counsel for the appellants wanted to drive a point that if the injured had worked, there was no labouring of disability and he will not be entitled for any allowance on disability. Disability will affect the person from doing the work with that potential which he was able to do in the pre accident period and at the same time, he is aged 25 years and he sustained segmental fracture of radius and ulna of right forearm middle one third, undergone operation, open reduction internal fixation was done with intra medullary square nail to both radius and ulna and after treatment, when a person works in Lotus Company, the appellants can not claim that he is able to work in the same fit as he was prior to the accident. Therefore, his total disability cannot be assessed for the reason that he has joined the job. Disability is assessed by the nature of job which he is unable to do with reference to what he was doing earlier or any other whether it involves physical or mental strain as the case may be. However, there are certain disabilities which the bearer will be disabled from carrying the work, which he was able to carry out prior to accident now by virtue of the disability cannot carry out such work or any work. This submission of the learned counsel for the appellants cannot be accepted.
12. Now, insofar as compensation amount of `15,000/- towards pain and suffering; `35,000/- towards reimbursement of medical bills, `2,58,898/- towards loss of future income and `5,000/- towards conveyance, food and nourishment expenses awarded by the Tribunal are concerned, the same are just and proper as petitioner has laboured segmental fracture of radius and ulna of right forearm middle one third and after effects are also to be considered that too, the injuries is to his right arm.
13. The future medical expenses of `15,000/- deserves to be allowed. The learned counsel for petitioner submits that Tribunal has not considered the medical bills for Rs.15,000/-. In the context and in the light of the awarding Rs.15,000/- towards future medical expenses covers factors such as injuries resulting in disability and assessing it in terms of percentage and fixing the amount for each percentage. An amount of Rs.15,000/- is awarded by way of additional compensation as held by the Apex Court in the case of Jitendra Khimshankar Trivedi And Others Versus Kasam Daud Kumbhar and others reported in (2015) 4 SCC 237), wherein, the Apex Court has held in para-12 as under:
12. The Tribunal has awarded Rs.2,24,000/- as against the same, the claimants have not filed any appeal. As against the award passed by the Tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/the Tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa v. Gurudayal Singh Oriental Insurance Co.Ltd. v. Mohd.Nasir and Ningamma v. United India Insurance Co. Ltd. As against the award passed by the Tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/the Tribunals to award just and reasonable compensation, it is appropriate to increase the compensation.
14. In the context and circumstances of the case, the appeal is devoid of merits. However, an amount of `15,000/- is granted as additional compensation to the petitioner. Hence, I pass the following:
ORDER The relief as prayed for by the appellants is rejected.
Therefore, appeal is dismissed.
Judgment and award dated 09.01.2015 passed in MVC No.949/2014 by the Tribunal is proportionately set aside and modified awarding additional compensation of `15,000/- with interest at 6% p.a. from the date of petition till the date of deposit.
The Corporation is directed to deposit the compensation, including the enhanced compensation with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this judgment, after deducting whatever the amount deposited by it.
The amount in deposit shall be transmitted to the jurisdictional Tribunal, forthwith.
tsn* Sd/- JUDGE