IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF NOVEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.206/2016 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.4513/2016 (MV) IN MISCELLANEOUS FIRST APPEAL NO.206/2016 Between:
North West Karnataka Transport Corporation, Central Office, Gokul Road, Hubli. By its Managing Director, Represented by its Chief Law Officer.
... Appellant (By Ms. H. R. Renuka, Advocate) And:
1. Jainuddin Kasim Hodekar S/o Kasim Hodekar, Aged about 44 years, R/o Near Jamiya Masjid, Roashan Mohalla, Kasarakod Post, Honnavara Taluk- 581 334.
2. The Divisional Manager, National Insurance Company Ltd, Honnavara Branch, III Floor, PCARD Bank Building, Court Road, Honnavara Taluk- 581 334.
…Respondents.
(By Sri. K. Prasanna Setty, Advocate for R1 And Smt. Manjula N. Tejaswi, Advocate for R2) This MFA is filed u/s 173(1) of MV Act against the Judgment and Award dated 01.09.2015 passed in MVC No.84/2014 on the file of the Senior Civil Judge and AMACT, Kundapura, awarding compensation of Rs.3,92,810/- with interest at 6% p.a, from the date of the petition till the date of realization.
IN MISCELLANEOUS FIRST APPEAL NO.4513/2016 Between:
Jainuddin Kasim Hodekar Aged about 45 years, S/o Kasim Hodekar, R/o Near Jamiya Masjid, Roshan Mohalla, Kasarkod Post, Honnavara Taluk- 580 301.
… Appellant (By Sri. K. Prasanna Setty, Advocate) And:
1. Managing Director NWKRTC, Central Office, Gokul Road, Hubli- 550 301.
2. The Divisional Manager, National Insurance Co. Ltd, Honnavara Branch, 3rd Floor, PCARD Bank Building, Court Road, Honnavara, Uttara Kannada Dist. - 581 334.
…Respondents.
(By Smt. H.R. Renuka, Advocate for R1 and Smt. Manjula N. Tejaswi, Advocate for R2) This MFA is filed u/s 173(1) of MV Act against the Judgment and Award dated 01.09.2015 passed in MVC No.84/2014 on the file of the Senior Civil Judge and AMACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement.
These appeals coming up for Admission this day, the court delivered the following:
JUDGMENT Appeal in M.F.A.No.206/2016 is by the Appellant- North West Karnataka Transport Corporation challenging the judgment and award dated 01.09.2015 passed in MVC No.84/2014 on the file of the Senior Civil Judge and Member, AMACT, Kundapura, awarding compensation of Rs.3,92,810/- with interest at 6% p.a, on the ground of liability and quantum. Appeal in M.F.A.No.4513/2016 is by the injured-claimant as against the above said judgment and award seeking enhancement.
2. Heard the learned counsel for both the parties, in both the appeals.
3. The accident is of the year 2013. The accident is not in dispute. The claimant has filed claim petition before the claims Tribunal having suffered the injuries in the road traffic accident. In support of his claim having suffered injuries, he has examined a Doctor as PW3, who has deposed that the injured has suffered two grievous injuries and other simple injuries. The Doctor further stated that the injured had taken 14 days treatment as an in-patient and also follow-up treatment for another 4 times. He was earning Rs.25,000/- per month.
4. Learned counsel for the Corporation has submitted that with reference to the injuries suffered by the injured and also considering the evidence of PW3 what has been awarded by the Tribunal is on higher side. The injured has suffered simple fracture, for which the Tribunal has awarded Rs.65,000/- towards pain and suffering, which is on higher side. Sum of Rs.72,000/- awarded by the Tribunal under the head of loss of income during the laid up period is also on higher side. Further, the learned counsel submitted that PW1 himself deposed that he is owner of the Persian Boat and he was running the same with the assistance of 25 persons. Under these circumstances, Rs.72,000/- awarded by the Tribunal towards loss of income during laid up period is on higher side and there is no loss of future income as the Doctor who has deposed that the fractures suffered by the injured are united. With reference to the nature of the injuries, there cannot be loss of future income.
5. Learned counsel for the claimant supports the order of the Tribunal and has submitted that the claimant was earning Rs.25,000/- per month. He has taken treatment for about 14 days as an in-patient and hence the compensation awarded by the Tribunal is not on higher side. The Tribunal has awarded Rs.65,000/- under the head of pain and suffering with reference to the injuries suffered, which is on lower side and it has to be enhanced.
6. The Tribunal has awarded sum of Rs.95,410/- under the head of medical expenses, Rs.72,000/- towards loss of income during laid up period and Rs.1,40,400/- towards loss of future earning capacity, which are on higher side and hence, it is appropriate to interfere with the same.
7. There cannot be loss of future income, since the claimant was owner of the Persian Boat and he was running the same with the assistance of 20-25 persons and he was not used to go to the Sea to catch the fish, for which he had employed 20-25 persons. Under these circumstances, unless loss of income to the injured, total sum of Rs.3,92,810/- awarded by the Tribunal under all the heads for having suffered two injuries is on higher side and the same requires modification. In order to award just compensation, Rs.92,810/- is reduced from out of the total compensation of Rs.3,92,810/- and modified the judgment and award dated 01.09.2015 passed in MVC No.84/2014 on the file of the Senior Civil Judge and AMACT, Kundapura. It is made clear that the claimant is entitled for total compensation of Rs.3,00,000/- with interest at 6% p.a as against Rs.3,92,810/-.
8. Though the rash and negligent driving of the KSRTC bus is held to have been proved and in fact as per the Sketch, the KSRTC bus itself was on the wrong side. The evidence of RW.1-Driver of the KSRTC bus is to the effect that to avoid dashing the ongoing passenger in the auto rickshaw, he had taken the bus to the extreme right. By considering the evidence of the driver of the bus, it is held that there *can be a rash and negligent driving on the part of driver of the KSRTC bus.
Accordingly, these Miscellaneous First Appeals are disposed of.
Amount in deposit shall be transmitted to MACT.
Sd/- JUDGE DL *Corrected vide Court order dated:25.03.2021