IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 2782 OF 2016 (M V) CONNECTED WITH MFA NO. 1169 OF 2016 (MV) MFA NO. 2782/2016:
BETWEEN THE MANAGING DIRECTOR N.E.K.R.T.C CENTRAL OFFICES KALBURGI – 585101.
REPRESENTED BY IT’S CHIEF LAW OFFICER (BUT WRONGLY SHOWN AS THE MANAGING DIRECTOR N.E.K.R.T.C. DIVISION SHANTHINAGAR DOUBLE ROAD BANGALORE – 560027 IN THE CAUSE TITLE BEFORE THE TRIBUNAL) ... APPELLANT (BY SRI. F. S. DABALI - ADVOCATE) AND S.D. GANESH S/O DEVEGOWDA AGED 32 YEARS R/AT: NO. E. 297/2, 1ST MAIN ROAD, BEHIND SWATHI PETROL BUNK RUKMINI NAGARA BANGALORE NORTH NAGASANDRA POST BANGALORE – 560073. ... RESPONDENT (BY SRI. SHRIPAD. V. SHASTRI - ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2015 PASED IN MVC NO. 4087/2014 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM COURT OF SMALL CAUSES, MEMBER MACT -7 BANGALORE, AWARDING THE COMPENSATION OF RS. 2,10,934/- WITH INTEREST @ 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF PAYMENT FROM THE RESPONDENT.
MFA NO. 1169/2016: BETWEEN S.D. GANESH S/O DEVEGOWDA AGED 32 YEARS R/AT: NO. E. 297/2 1ST MAIN ROAD BEHIND SWATHI PETROL BUNK RUKMINI NAGARA BANGALORE NORTH NAGASANDRA POST BANGALORE – 560073. … APPELLANT (BY SRI. SHRIPAD. V. SHASTRI - ADVOCATE) AND THE MANAGING DIRECTOR N.E.K.R.T.C. DIVISION SHANTHINAGAR DOUBLE ROAD BANGALORE – 560027. … RESPONDENT (BY SRI. F. S. DABALI - ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2015 PASED IN MVC NO. 4087/2014 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND ADDITIONAL MACT & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER MACT-7 BANGALORE, AWARDING PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. These appeals are preferred against the judgment and award dated 01.12.2015 passed by the MACT in MVC No.4087/2014.
3. MFA No.1169/2016 is filed by the injured claimant seeking enhancement of the compensation and MFA No.2782/2016 is filed by the NEKRTC on the question of negligence, liability as well as quantum.
4. The factual matrix of the appeals are as under:
It is stated in the claim petition that on 29.06.2014 at about 5.15 p.m. near Arsinkunte, Bangalore District, on NH-4 Road, when the claimant was proceeding as a pillion rider in Motor Cycle bearing Reg.No.KA-02-EF-5582 from Shivagange towards Bangalore, at that time, one NEKRTC bus bearing Reg.No.KA-37-F-439 came from behind, Tumkur towards Bangalore, drove the same in rash and negligent manner by its driver and dashed against the Motor Cycle on back side. He was shifted to Sapthagiri Hospital, Hesaraghatta Main Road at Bangalore and was admitted there. He was doing vegetable business and he was earning Rs.10,000/- per month. He was the head of the family and out his family, the entire family was maintained. Due the accidental injuries the income of the family has been deprived. On these grounds, the claimant filed the claim petition seeking compensation.
5. On issuance of notice, respondent – NEKRTC appeared before the Tribunal and filed written statement denying the petition averments. Based upon the pleadings, the Tribunal framed the issues. In order to establish his case, the petitioner examined himself as PW.1 and also examined the treated Doctor as PW.2 and got marked Exs.P1 to P15. Respondent got examined the Driver of the Bus as RW.1 and the Divisional Security Inspector as RW.2 and no documents were marked. The Tribunal after hearing the arguments of learned counsel for the petitioner and learned counsel for respondent – NEKRTC and on evaluation of entire oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.2,10,934/- from the date of petition till the date of payment. It is this judgment which is challenged under this appeal by urging various grounds.
6. Learned counsel for the claimant contends that the judgment and award passed by the Tribunal is contrary to facts and circumstances of the case and also evidence on record. He contends that the Tribunal ought to have granted more compensation towards pain and suffering and loss of amenities keeping in view the nature of injuries the claimant has sustained. Further, the Tribunal has erred in assessing the permanent physical and functional disability @ 6% for the whole body and it ought to have considered the functional disability of the appellant as equal to particular limb disability which is at 29%. Further, he contends that the compensation awarded under other heads is on lower side and same needs to be enhanced. On all these grounds, learned counsel for the claimant prays to allow the appeal filed by him seeking enhancement of compensation.
7. Per contra, learned counsel for NEKRTC contends that the Tribunal erred in not noticing the delay in filing the complaint by the rider of the motorcycle on which the petitioner was pillion rider. Ex.P7 – the wound certificate shows that the claimant went to Sapthagiri hospital along with his brother and not with the complainant. This goes to show that the NEKRTC bus has been falsely implicated by lodging false complaint. Further, he contends that as per Ex.P2 – complaint, the rider of the motor cycle has not sustained any injury but only the pillion rider has sustained injuries. If really the bus had dashed to the motorcycle from behind, both the rider and pillion rider would have sustained injuries and moreover, as per IMV report - Ex.P.6, no damage has been caused to the bus and no major damage has been sustained to the motorcycle on its hind side. As per Ex.P.13, the hospital records shows that the claimant was under the influence of alcohol and the rider of the motor cycle had not accompanied the claimant to the hospital. RW.1 in his evidence has stated that when the bus was halted near Arisinakunte bus stop for alighting for the passengers, the rider of the motorcycle drove in a terrific speed and because of skid fell down in the middle road but this negligence on the part of the rider of the motorcycle has not been considered by the court below. Further, the compensation of Rs.2,10,934/- awarded by the Tribunal under different heads and fixing the entire liability on NEKRTC is not justified and the same requires intervention of this court. On all these grounds, learned counsel for the NEKRTC prays for setting aside the judgment and award passed by the Tribunal.
8. In this context of contentions taken by the learned counsel for the claimant and learned counsel for NEKRTC it is necessary to state that there is no dispute regarding the injuries sustained by the claimant who was a pillion rider in motor cycle bearing Reg.No.KA-02-EF-5582. Claimant was examined as PW.1 and in the evidence he has reiterated the petition averments by producing documentary evidence such as Ex.P1-FIR, Ex.P2 – Complaint, Ex.P3-Charge sheet, Ex.P4-Spot Panchanama, Ex.P5- seizure panchanama, Ex.P6-IMV report, Ex.P7- wound certificate, Ex.P7-discharge card and Ex.P.12 – X- ray film and has also examined the treated Doctor as PW.2 who has produced Ex.P.13 inpatient record.
9. Ex.P7 – wound certificate discloses that petitioner has sustained two punctured wound over medial anterior aspect of left leg, X-ray left leg showed Type I open fracture both bones left leg, i.e., one simple injury and one grievous injury. He was inpatient for 21 days and took treatment for the accidental injuries at Sapthagiri Hospital. Petitioner has stated that he was doing Vegetable business and was earning Rs.10,000/- per month. The Tribunal, in the absence of material evidence, has considered the notional income of the petitioner at Rs.8000/- per month. Further, considering the gravity of injuries, the Tribunal has assessed the permanent physical and functional disability of 6% and the age of petitioner as 31 years and calculated the loss of future income at Rs.92,160/-. But having regard to the year of accident and as per the guidelines, the income of the injured has to be taken at Rs.9,000/-. Further, the PW.2 – Doctor who has examined the petitioner has opined that the total disability to lower left limb is 29% and total disability to body due to left lower limb is 9.6%. Having regard to the nature of injuries sustained by the petitioner it is just and proper to hold that the petitioner has sustained 9% disability to the whole body. Accordingly, the compensation under the head loss of income would work out to Rs.1,55,520/- (Rs.9,000 x 12 x 16 x 9%).
10. In so far as the compensation under the head pain and suffering is concerned, the same is enhanced to Rs.50,000/- as against Rs.30,000/- awarded by the Tribunal. Having assessed the notional income of petitioner at Rs.9,000/- per month, the compensation under the head loss of income during treatment would be Rs.27,000/- as against Rs.24,000/- awarded by the Tribunal. Further, the compensation awarded by the Tribunal under the heads loss of amenities, conveyance, attendant charges, food nourishment and diet charges is on lower side and the same is enhanced to Rs.30,000/-.
11. In view of the discussion made above and with the altered factors, the compensation is re-worked out as
However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. Thus, in all the claimant is entitled for additional compensation of Rs.97,360/-.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER MFA No.1169/2016 filed by the claimant is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.97,360/- with interest @ 6% p.a. from the date of petition, till realisation.
MFA No.2782/2016 filed by appellant/NEKRTC is hereby dismissed. The impugned judgment and award dated 01.12.2015 passed by the Tribunal in MVC No.4087/2014, is modified accordingly.
The amount in deposit, if any, before this court, shall be transmitted to the concerned Tribunal along with the lower court records, forthwith.
The respondent-NEKRTC shall deposit the 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 rate of interest is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB