IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1169 OF 2014 (MV) C/W M.F.A.NO.888 OF 2014 IN M.F.A. NO.1169/2014 BETWEEN:
THE LEGAL MANAGER SHRIAM GIC LTD., NO.10003-E-8, RIICO INDUSTRIAL AREA SITHAPURA, JAIPUR RAJASTHAN – 302 022.
NOW REPRESENTED BY LEGAL MANAGER SHRIRAM GENERAL INS. CO. LTD., NO.304, 3RD FLOOR S AND S CORNER BUILDING OPP BOWRING AND LADY CURZON HOSPITAL BANGALORE – 01.
... APPELLANT (BY SRI. B.PRADEEP, ADVOCATE) AND:
1. BASAVARAJ S/O ANJINAPPA NOW AGED ABOUT 29 YEARS R/AT ADVIHALLI VILLAGE HARAPANAHALLI DAVANAGERE DISTRICT – 577 001.
2. SHANMBULINGAIAH HIREMATH S/O LATE BASAVALINGAIAH DRIVER, HARIHAR DEPOT, DAVANAGERE DISTRICT – 577 001.
3. THE DEPOT MANAGER AND OWNER OF BUS HARIHAR DEPOT DAVANAGERE DISTRICT – 577 001.
4. THE DIVISIONAL MANAGER KSRTC DIVISION OFFICE DAVANAGERE TOWN & DISTRICT – 577 001.
5. THE CHAIRMAN, INTERNAL SECURITY FUND KSRTC TRANSPORT BHAVAN K H ROAD, BANGALORE.
6. B ABDUL AZEEZ S/O YUSUF SAB NOW AGED ABOUT 41 YEARS DRIVER CUM OWNER OF TRACTOR BALIGARAGERI IN HARAPANAHALLI TOWN DAVANAGERE DISTRICT – 577 001.
... RESPONDENTS (BY SRI G.S.BALAGANGADHAR, ADVOCATE FOR C/R1; SRI D.VIJYAKUMAR, ADVOCATE FOR R4 AND R5; SRI.C.P.PUTTARAJ, ADVOCATE FOR R6;
R2 AND R3 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2013 PASSED IN MVC NO.112/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, D.K., HARAPANAHALLI, AWARDING COMPENSATION OF RS.14,40,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.888/2014 BETWEEN:
SRI.BASAVARAJ S/O SRI. ANJINAPPA AGED ABOUT 28 YEARS OCC: LABOUR R/O ADAVIHALLI VILLAGE HARAPANAHALLI DAVANAGERE DISTRICT – 577 001.
(BY SRI. G.S.BALAGANGADHAR, ADVOCATE) AND:
1. SRI. SHAMBULINGAIAH HIREMATT S/O LATE BASAVALINGAIAH AGED ABOUT 32 YEARS, OCC: DRIVER OF K.S.R.TC., BEARING REGN. NO.KA-17/F-736, HARIHAR DEPOT, DAVANAGERE DISTRICT – 577 001.
2. THE DEPOT MANAGER AND OWNER OF KSRTC BUS BEARING REGN. NO.KA-17/F-736, HARIHAR DEPOT DAVANAGERE DISTRICT – 577 001.
3. THE DIVISIONAL MANAGER KSRTC DIVISION OFFICE ... APPELLANT DAVANAGERE TOWN & DISTRICT – 577 001.
4. THE CHAIRMAN, INTERNAL SECURITY FUND KSRTC TRANSPORT BHAVAN K H ROAD BANGALORE – 560 027.
5. SRI.B ABDUL AZEEZ S/O YUSUF SAB NOW AGED ABOUT 40 YEARS OCC: DRIVER AND OWNER OF TRACTOR - TRAILER BEARING ITS REGISTRATION NO.KA-16/T-2234/2235, R/O BALIGARAGERI, HARAPANAHALLI TOWN DAVANAGERE DISTRICT – 577 001.
6. THE GENERAL MANAGER, SRI RAM GENERAL INSURANCE CO. LTD., NO.10003/E, RIICO INDL. AREA, SITA PURA, JAIPUR, RAJASTAN STATE – 302 022. POLICY NO.10003/31/11/148742 VALID FROM 13.08.2010 TO 12.08.2011.
... RESPONDENTS (BY SRI D.VIJYAKUMAR, ADVOCATE FOR R2 TO R4;
SRI B.PRADEEP, ADVOCATE FOR R6; R5 SERVED;
NOTICE TO R1 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2013 PASSED IN MVC NO.112/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT - 9, HARAPANAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the insurer and claimant are in appeal under Section 173(1) of the Motor Vehicles Act, against judgment and award dated 26/09/2013 in M.V.C.No.112/2011 on the file of the Senior Civil Judge, IX Additional MACT, Harapanahalli.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, seeking compensation for the accidental injuries suffered in a road traffic accident. It is stated that the claimant along with one Nagaraj and Devraj had boarded KSRTC bus bearing Reg.No.KA-17/F-736 on 06/1/2011 at Kottur to go to their native village Adivehalli. When the Bus reached Kottur- Harapanahalli road, the driver of the said Bus drove the same with rash and negligent manner and dashed against the Tractor-Trailer bearing Reg.No.KA-16/T/2234/2235, which was coming from opposite direction with a rash and negligent manner. Due to which, the claimant sustained injuries. It is stated that the claimant was working as loader and un-loader at APMC Yard, Harapanahalli and was earning Rs.9,000/- per month. He was aged 30 years as on the date of accident.
3. On issuance of notice, respondent Nos.2 to 4 appeared before the Tribunal and filed their statement of objections. Respondent No.5 being driver-cum-owner of tractor-trailer denied the allegation of negligence on his part and contended that the accident occurred due to the rash and negligent driving of respondent No.1-driver of the KSRTC Bus. Respondent No.6-insurer of tractor-trailer disputed the manner of accident and stated that the accident occurred due to the negligent driving of the driver of KSRTC Bus.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-153. Respondents examined RW-1 to RW-3, apart from marking documents Exs.R-1 to R-6.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.14,40,000/- with interest at the rate of 8% per annum from the date of petition till its realization, on the following heads:
The Tribunal further fixed contributory negligence at 50% each on the driver of the KSRTC Bus as well as driver of the tractor-trailer. The insurer of tractor- trailer/respondent No.6 is before this Court in MFA.No.1169/2014, aggrieved by the saddling of 50% liability on it and also aggrieved by the assessment of functional disability at 100%. Whereas, the claimant is before this Court in MFA.No.888/2014, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant-insurer and learned counsel for the respondent-KSRTC as well as learned counsel for the claimant. Perused the material on record including the lower court records.
7. Learned counsel for the appellant-insurer would submit that the Tribunal committed an error in fastening 50% contributory negligence on the driver of the tractor- trailer and saddling 50% liability on respondent No.6- insurer. He further submits that the accident occurred solely due to the negligence of the driver of the KSRTC Bus and hence entire liability ought to have saddled on the respondent-KSRTC. Further, he submits referring to the evidence of PW-1 that the accident had occurred as the driver of the KSRTC Bus drove the same in a rash and negligent manner and dashed to the tractor-trailer. It is his further submission that the Tribunal ought to have saddled the 100% liability on the respondent-KSRTC. Learned counsel, nextly contended that the Tribunal committed an error in assessing functional disability of the claimant at 100%. He further submits referring to PW-2- Doctor’s evidence that the Doctor has stated that the claimant suffers around 55-60% permanent disability. When the expert states that the claimant suffers 55-60% permanent disability, the Tribunal ought not to have assessed the functional disability at 100% instead of assessing at 1/3rd of the disability to a particular limb. Thus, he prays for allowing MFA.No.1169/2014.
8. Per contra, learned counsel for the respondent– KSRTC submits that the Tribunal rightly saddled liability of 50% each on the driver of the KSRTC Bus as well as driver of the tractor-trailer. He further submits that the accident occurred due to the negligent driving of drivers of both the vehicles. Further he points out the evidence of PW-1, wherein he states that due to negligence of both the drivers of the vehicles, the accident had taken place.
9. Learned counsel for the claimant submits that the compensation awarded by the Tribunal is on the lower side and the income of the claimant assessed by the Tribunal is on the lower side. It is his further submission that the compensation awarded on the various heads are also on the lower side. With regard to disability assessed by the Tribunal, he submits that the Tribunal rightly assessed functional disability at 100%. Further he submits that the claimant suffered paralysis of all four limbs i.e., quadriplegia, pain, swelling and tenderness over neck with unability to move all four limbs, fracture of T1 body, sub turn listhesis at C7 – T1 level. The injury suffered by the claimant as per PW-2-Doctor is Quadriplegia. The claimant would not be in a position to move without assistance of walker or any other person. The claimant was working as loader and un-loader and due to the accidental injuries suffered by him, he would not be in a position to do the loader work. Hence, the Tribunal is justified in assessing functional disability at 100%. Learned counsel also refers to Ex.P-150-Disability certificate issued by PW-2- the Doctor, wherein it discloses that the claimant suffers from 55 to 60% whole body disability.
10. On hearing the learned counsel for the parties and on perusal of the Lower Court Records, the following points would arise for consideration in these appeals :-
a. Whether the contributory negligence of 50% each saddled on the drivers of both the KSRTC Bus as well as the Tractor-Trailer is just and proper ?
b. Whether the functional disability of the claimant assessed by the Tribunal at 100% is just and proper ?
c. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?
Answer to the above points would be in the affirmative for the following reasons :-
The accident occurred on 06.01.2011 involving KSRTC Bus bearing Reg.No.KA17/F-736 and the Tractor- Trailer bearing Reg.No.KA-16/T/2234-2235 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The insurer is before this Court aggrieved by the saddling of 50% contributory negligence on it and aggrieved by assessment of 100% functional disability to the claimant. Petitioner – PW.1 in his evidence has specifically made it clear that the accident had taken place due to the negligence on the part of drivers of both the KSRTC Bus as well as Tractor-Trailer. The bus in which the claimant was traveling was proceeding towards Harapanahalli, whereas the Tractor- Trailer was coming from the opposite direction, which collided head on. The complaint is lodged against the drivers of both the vehicles and charge sheet is also filed against the drivers of both the vehicles. The spot mahazar Ex.P4 and the complaint Ex.P2 would also disclose that the accident occurred due to the rash and negligent driving by the drivers of both the vehicles. RW.1 is the driver of the Tractor-Trailer. RW.2 is the driver of the KSRTC Bus. Both the drivers in their evidence have stated that the accident took place due to the negligent driving by the driver of the KSRTC Bus and driver of the Tractor-Trailer respectively. The evidence of RWs.1 and 2, who are the drivers of both the vehicles cannot be relied upon to decide the question of contributory negligence. But looking to the evidence of PW.1 and Exs.P2 and P4 it could be concluded that the accident had occurred due to the negligence of drivers of both the vehicles, hence the Tribunal is justified in saddling 50% contributory negligence on the driver of KSRTC Bus as well as the driver of Tractor-Trailer, which needs no interference. The claimant has suffered quadriplegia of four limbs and is unable to move all the four limbs. The Doctor in his evidence has stated that the claimant could walk with the support of walker or with the assistance of an attendant. PW.2 – the Doctor has opined that the claimant suffers from permanent physical impairment of 55 to 60% to the whole body. Ex.P150 is the disability certificate issued by PW.2 – the Doctor. Learned counsel for the appellant-insurer submitted that PW.2 – the Doctor is an Orthopedic Surgeon and he is not a Neuro Surgeon. An Orthopedic Surgeon could not have given certificate with regard to Quadriplegia suffered by the claimant. But PW.2 the Doctor in his evidence has stated that before issuing the disability certificate he has examined the claimant clinically and based on the medical guidelines, he has issued the disability certificate. Further PW.2 - the Doctor has also stated that he has treated the claimant along with one Dr. Ramesh, Dr. Chetan, Dr. M.V. Sathya Narayana and Dr. H.S. Veerendra. He has further deposed that before issuing Ex.P.150 disability certificate, he has discussed with all the four Doctors, with regard to disability suffered by the claimant and thereafter issued Ex.P150 – the disability certificate. Admittedly the claimant was a coolie. He states that by doing coolie work, he was earning a sum of Rs.9,000/- per month. On perusal of Ex.P.150 and the Doctor’s evidence, it is clear that the claimant would not be in a position to do the coolie work as he was doing earlier, due to the accidental injuries suffered and the disability due to the accidental injuries. The Tribunal has rightly assessed the functional disability at 100% taking into consideration the disability stated by the Doctor, nature of injuries suffered and medical reports with reference to claimants avocation.
Thus I am of view, that 100% functional disability assessed by the Tribunal needs no interference.
11. Learned counsel for the claimant submitted that the income assessed by the Tribunal at Rs.5,000/- per month and the compensation awarded by the Tribunal is on the lower side. The claimants stated that he was doing coolie work and was earning Rs.9,000/- per month, but he has not placed on record any material to indicate that his income was Rs.9,000/- per month. In the absence of any material on record to indicate his exact income the Tribunal rightly assessed the notional income of Rs.5,000/- per month which needs no interference. The claimant took treatment as inpatient from 6.1.2011 to 26.02.2011 nearly about 50 days. He has undergone major surgery. Looking to the injuries sustained by the claimant and treatment taken by him as inpatient for nearly 50 days, the compensation awarded on the head pain and suffering, discomfort and loss of amenities and conveyance charges are slightly on the lower side. The claimant would be entitled for another sum of Rs.20,000/- on head pain and suffering, another sum of Rs.10,000/- towards conveyance. Thus the claimant would be entitled for enhanced compensation of Rs.30,000/- in addition to compensation of Rs.14,40,000/- with interest at 8% awarded by the Tribunal.
12. MFA No.1169/2014 filed by the insurer is dismissed. MFA No.888/2014 filed by the claimant is allowed in part. The impugned judgment and award is modified to the above extent. The amount in deposit in MFA No.1169/2014 be transferred to the concerned tribunal.
Sd/- JUDGE SMJ/NG-PR.11