IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 865 OF 2016 (MV) BETWEEN Shri. Muniyappa S/o Late Poojappa, Aged about 50 years R/at. No. 70, Dasanapura, Bangalore-23. ... Appellant (By Sri. Mahadeva Swamy. P - Advocate) AND The Managing Director Karnataka State Road Transport Corporation, Head Office, Double road, Shanthinagar, Bangalore-27. ... Respondent (By Sri. G. Lakshmeesh. Rao - Advocate) This MFA is filed under Sec 173(1) of MV Act against the judgment and award dated:20.06.2015 passed in MVC No.5120/2013 on the file of the XII Additional Small Causes Judge and Member, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondent - KSRTC, perused the records.
2. Though the matter is listed for admission, with consent of both the parties, the same is heard for final disposal.
3. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded in the impugned judgment dated 20.06.2015, passed by the XII Addl.Small Causes Judge, and Member, MACT, Bangalore, in MVC No.5120/2013, seeking enhancement of compensation.
4. The factual matrix of the case is as under:
It is stated in the claim petition that on 15.08.2013 at about 12.00 p.m. the claimant was standing near Dasanapura Bus stop to cross the road on NH-4, Bengaluru to go to panchayat office, at that time the driver of the KSRTC bus bearing registration No.KA-13-F-1922 drove the bus in a rash and negligent manner without observing the traffic rules and regulations, dashed against him, as a result, he fell down and sustained injuries. Immediately, he was shifted to Government Hospital, Nelamangala where he took the first aid treatment and later he was shifted to Rajiv Gandhi Chest Disease hospital for better treatment. The X-ray taken confirmed fracture of ribs, and other fractures. He took the treatment as inpatient from 15.8.2013 to 24.8.2013 and thereafter, he was shifted to Victoria hospital and underwent surgery.
5. In response to the notice, the respondent – KSRTC filed written statement contending that the petition filed by the petitioner is not maintainable in law or on facts and denied the alleged accident.
6. On the basis of pleadings, the Tribunal framed the issues. The claimant in order to prove the claim, examined himself as PW.1 and got marked documents as per Exs.P1 to P9 and he also examined another witness as PW.2 on his behalf and got marked as per Exs.P10 to Ex.P12. The respondent – KSRTC examined the bus driver as RW.1 and another person as RW.2 and got marked Exs.R1 to R3.
7. The Tribunal, after evaluation of the oral and documentary evidence held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently, awarded compensation of Rs.1,58,920/- with interest at 8% per annum from the date of petition till the date of realization. Further, the Tribunal held that the claimant has contributed the negligence to an extent of 25% for the cause of accident and driver of the bus has contributed the negligence to an extent of 75% and accordingly, fastened the liability over them. Hence, this appeal seeking enhancement of compensation.
8. The learned counsel for the appellant vehemently contends that the tribunal erred in not properly appreciating the evidence on record and has passed the judgment contrary to the facts and circumstances of the case and material evidence on record. He further contends that having regard to the nature of injuries, the avocation of the claimant and the treatment taken, the compensation awarded by the Tribunal is on the lower side and needs to be enhanced.
9. Per contra, the learned counsel for respondent KSRTC contends that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
10. Further, he contends that there is contributory negligence on the part of the claimant and he has categorically admitted that he crossed the road where he was not suppose to cross and he has also admitted that if he had crossed the road through underpass, he would not have sustained any injuries. Further he contends that the driver of the bus has not caused the accident as alleged in the claim petition, since the claimant has not proved the rash and negligent driving of the KSRTC bus. Mere involvement of the bus in the accident, it does not mean that the respondent is liable to pay the compensation. On these grounds he sought for dismissal of the appeal seeking enhancement of compensation.
11. The PW.1 being the injured in his evidence has stated that on 15.8.2013 at about 12.00 p.m. while he was crossing the road near Dasanapura bus stop, the driver of KSRTC bus drove the same in a rash and negligent manner and dashed against him. As a result, he fell down and sustained fracture of 3rd to 10th ribs, fracture acromion process of scapula displaced, fracture midshaft of the clavicle displaced and fracture bicolumar transverse type acetabulam displaced with Central Dislocation of the femoral head. He took treatment as an inpatient for a period of 33 days on different occasion at Rajiv Gandhi Hospital and Victoria Hospital. Under such circumstances, having regard to the nature of injuries sustained by the claimant, period of treatment undergone and consequential disability sustained by him, the compensation awarded by the tribunal in a sum of Rs.40,000/- towards pain and suffering is just and proper and requires no enhancement.
12. Having regard to the period of treatment taken by the injured claimant, compensation awarded under the head – loss of income during laid up period is on a lower side. Hence, the same is enhanced to Rs.24,000/- as against Rs.18,000/- awarded by the Tribunal.
13. In so far as loss of future earning is concerned, PW.2 being the Orthopaedic Surgeon in his evidence has clearly stated about disability of the claimant due to the accidental injuries. According to him claimant has sustained permanent disability to an extent of 34% of whole body. PW.2 in his cross-examination has categorically admitted that the petitioner has not underwent any surgery and took conservative treatment. The Tribunal having gone through the injuries sustained by the claimant and duration of treatment taken by him, considered the whole body disability to the extent of 10% instead of 34%. Ex.P4, P8 and P12 reflects that as on the date of alleged accident, his age was 55 years, but in the claim petition he has claimed that his age was 49 years. But the medical records reflects that his age was 55 years as on the date of alleged accident. The Tribunal by relying on the judgment of Hon’ble Supreme Court in Sarlaverma Vs. Delhi Transport Corporation reported in 2009 ACJ 1298 by applying 11 multiplier awarded Rs.79,200/- under the head loss of future earning. But the same is on the lower side and it is required to be enhanced. Therefore, by taking the monthly income of the claimant as Rs.8,000/- p.m. instead of Rs.6,000/- taken by the Tribunal, the amount under the head ‘loss of future earning’ works out as under:
Rs.8,000 x 12 x 11 x 10/100 = Rs.1,05,600/-
Hence, the claimant is entitled to Rs.1,05,600/- as against Rs.79,200/- awarded by the Tribunal.
14. Further, the Tribunal has awarded Rs.20,000/- under the head – loss of amenities, conveyance, food and nourishment, attendant charges. Keeping in view the nature of injuries sustained and the treatment taken by the injured/claimant at different hospitals as inpatient and also outpatient as per Ex.P7 and P8, the compensation awarded under this head is on the lower side and accordingly, it is enhanced to Rs.30,000/-
15. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not calls for interference. Thus, in all, the claimant is entitled to total compensation of Rs.2,01,320/- as against Rs.1,58,920/- awarded by the tribunal.
16. PW.1 in his cross-examination has categorically admitted that he has jumped the wall and tried to cross the road that is the reason why the accident had occurred. There was a underpass within 100 feet from the place of accident and if he had crossed the road in the underpass, that accident would not have occurred and the claimant would not have sustained any injuries. Therefore, the Tribunal has rightly held that there is contributory negligence on the part of the claimant to an extent of 25% and 75% on the part of respondent – KSRTC and it does not call for interference.
Accordingly, the appeal is allowed in part. In modification of the impugned judgment and award dated 20.06.2015 passed by the Tribunal in MVC No.5120/2013 the compensation payable to the claimant is enhanced from Rs.1,58,920/- to Rs.2,01,320/-. The enhanced compensation would come to Rs.42,400/- and the Respondent-insurer shall deposit the enhanced compensation with interest, before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB