IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A.NO.4301/2015 (MV) C/W M.F.A.NO.6361/2014 (MV) M.F.A.NO.4301/2015 BETWEEN:
M.M.SATHISH AGED ABOUT 45 YEARS S/O MAHALINGAPPA R/AT MADENAHALLI KASABA HOBLI GUBBI TALUK TUMKUR DIST. ... APPELLANT (BY SRI.MUSHTAQ AHMED, ADV.) AND:
THE MANAGING DIRECTOR K.S.R.T.C. (CENTRAL DIVISION) SHANTHINAGAR K.H.COLONY BANGALORE-27 REP. BY ITS MANAGER.
... RESPONDENT (BY SRI.F.S.DABALI, ADV.) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.04.2014 PASSED IN MVC NO.1327/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-17, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.6361/2014 BETWEEN:
THE MANAGING DIRECTOR K.S.R.T.C. (CENTRAL DIVISION) CENTRAL OFFICE SHANTHINAGAR, K.H.ROAD WILSON GARDEN BANGALORE-560 027 REP.BY ITS CHIEF LAW OFFICER. ... APPELLANT (BY SRI.F.S.DABALI, ADV.) AND:
M.M.SATHISH S/O MAHALINGAPPA AGED ABOUT 44 YEARS R/O MADENAHALLI KASABA HOBLI GUBBI TALUK TUMKUR DIST.-572 216.
(BY SRI.MUSHTAQ AHMED, ADV.) ... RESPONDENT THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.04.2014 PASSED IN MVC NO.1327/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, GUBBI, AWARDING COMPENSATION OF RS.2,14,026/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the claimant and the respondent- Karnataka State Road Transport Corporation (for short ‘the KSRTC’) are before this Court in these two appeals assailing the judgment and award dated 11.04.2014 passed in MVC No.1327/2010 on the file of the Senior Civil Judge and Additional MACT-17, Gubbi.
2. MFA No.4301/2015 is filed by the claimant and MFA No.6361/2014 is filed by KSRTC. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.5,00,000/- for the injuries sustained in a road traffic accident that occurred on 12.08.2010. On 12.08.2010 the claimant was proceeding to Tumkur in a luggage auto bearing No.KA-51-6618 loaded with Tomato, at that time, near Government School, at Banglopalya, Gubbi, a KSRTC Bus bearing Reg.No.KA-17-F-
820 came from backside in a rash, negligent manner and dashed against the luggage auto, due to the impact the auto capsized and the claimant sustained injuries and fractures.
3. On service of summons, the respondent – KSRTC appeared before the Court and filed its statement denying the petition averments and also denying the alleged accident. It is also contended that the driver of the luggage Auto drove the vehicle in a rash, negligent manner and dashed against the Bus and caused accident.
4. The appellant/claimant in support of his case examined himself as PW.1, examined the Doctor as PW.2 and got marked the documents Exs.P1 to P16. The respondent – KSRTC examined RW.1 – the driver of the bus. Taking into consideration the income of the appellant at Rs.5,000/- per month and taking the disability of the claimant at 25%, the Tribunal on examination of the material on record awarded total compensation of Rs.2,14,026/- which is as follows :-
“a) Pain and suffering Rs. 25,000/-
b) Loss of future income due to permanent disability Rs.1,80,000/-
c) Attendant charges Rs. 2,200/-
d) Food and nourishment Rs. 2,200/-
e) Medical expenditure Rs. 1,626/-
f) Conveyance Rs. 3,000/-
Total Rs.2,14,026/- ”
5. The claimant is before this Court not being satisfied with the quantum of compensation awarded by the Tribunal. The respondent – KSRTC is before this Court, aggrieved by fastening of liability on it and also on quantum.
6. Heard the learned counsel for the appellant/claimant and learned counsel for the respondent –KSRTC in both the appeals. Perused the appeal papers.
7. The learned counsel for the appellant/claimant would submit that the Tribunal committed an error in taking the monthly income at Rs.5,000/-, whereas he was earning more than Rs.10,000/- per month as an agriculturist. He submits that the compensation granted on various heads is on the lower side and prays for enhancement of compensation.
8. The learned counsel for the respondent/KSRTC contends that the Tribunal committed an error in taking the disability of the claimant at 25% against the evidence of the Doctor. He submits that PW.2 has stated that claimant has suffered 10% disability to the whole body. Further he contends that the Tribunal has taken the age of the claimant as 47 years, whereas the claimant PW.1 admitted he is 60 years old. Therefore, his age is to be taken at 60 and multiplier of ‘9’ is to be adopted for calculation of compensation. Learned counsel further submits that the accident has taken place due to rash and negligent driving by the driver of the luggage auto, which the Tribunal has failed to consider.
9. The accident is of the year 2010. The claimant has not produced any documents to indicate his exact income. In the absence of any documentary evidence to indicate the exact income, the Court will have to determine the income of the claimant on notional basis. The Tribunal has taken the income of the claimant at Rs.5,000/- whereas the accident is of the year 2010, this Court and the Lok Adalath would normally take Rs.5,500/- as notional income to determine the compensation. Hence, I deem it appropriate to take the monthly income of the claimant at Rs.5,500/- to determine the ‘Loss of future income’.
10. The appellant/claimant has suffered fracture of both the bones of left leg and abrasion over right knee. The said injuries are indicated in Ex.P.5 – the Wound Certificate. PW.2 – the Doctor in his evidence has stated that the claimant has suffered 30% disability to a particular limb and 10% disability to the whole body. The Tribunal committed an error in taking permanent disability at 25% as against the Doctor’s evidence at 10% to whole body. Thus I deem it appropriate to take the permanent disability at 10% to whole body to determine the compensation. The next contention of the learned counsel for the respondent – Corporation is that the Tribunal has taken the age of the claimant at 47 years instead of 60 years as admitted by the claimant in his cross- examination. On going through the cross-examination of claimant/PW.1, he has stated that he was born in the year 1963 and to the suggestion that he is aged 60 years, he has specifically stated that he was born in the year 1963. The Tribunal has taken the age at 47 years. Taking the year of birth, the claimant who is said to be illiterate, without knowing the consequences has stated ‘Yes’ to the suggestion that he is aged about 60 years. Therefore, the finding that the appellant/claimant was aged 47 years needs no interference.
11. Looking into the injuries suffered by the claimant and as he was inpatient for 22 days, the compensation granted on the head of ‘Attendant Charges’ Rs.10,000/- is awarded Rs.2,200/- awarded by the Tribunal. On the head ‘Food and nourishment’ the compensation of Rs.10,000/- is awarded in addition to Rs.2,200/- awarded by the Tribunal. On the head ‘Conveyance’ the compensation of Rs.10,000/- is awarded in addition to Rs.3,000/- awarded by the Tribunal. The Tribunal has not awarded any compensation on the head ‘Loss of Amenity’ , hence the claimant is entitled for Rs.20,000/- on the head ‘Loss of Amenity’. The compensation on the head ‘Loss of future income’ would be as follows :-
Rs.5,500/- x 10% x 12 x 13 = Rs.85,800/-
12. Looking into the nature of injuries and as he was inpatient for 22 days, he would be out of employment for three months. Hence, he would be entitled for Rs.16,500/- (Rs.5,500/- x 3) on the head ‘Loss of income for laid up period’.
13. Accordingly, the impugned judgment and award is modified and the claimant would be entitled for compensation of Rs.1,52,300/- as against Rs.2,14,026/- compensation awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. Thus the compensation is reduced by Rs.61,726/-. Accordingly both the appeals are disposed off.
The amount in deposit be transferred to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms