IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.777/2015 (MV) BETWEEN:
SHASHIKUMAR @ H KUMAR S/O HOTTEPPA 23 YEARS AUTO AND CAR DRIVER R/O KALLIHATTI CHITRADURGA TALUK & DIST.
... APPELLANT (BY SRI.SPOORTHY HEGDE N, ADV.) AND:
1. THE MANAGING DIRECTOR KSRTC, KH ROAD OWNER OF KSRTC BUS REG. NO.KA-17-F-1215 SARIGE BHAVAN, BENGALURU-560003 REP.BY DEPOT MANAGER KSRTC, CHITRADURGA DEPOT CHITRADURGA 577 501.
2. THE CHAIRMAN INTERNAL SECURITY FUND, KSRTC, KH ROAD SARIGE BHAVAN BANGALORE-03.
(BY SRI.B PHALAKSHAIAH, ADV. FOR R1 & R2) ... RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.11.2014 PASSED IN MVC NO.514/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M, MACT-3, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is before this Court being aggrieved by fastening of contributory negligence of 50% on claimant as well as seeking enhancement of compensation awarded under the judgment and award dated 24.11.2014 in MVC No.514/2013.
2. The claimant injured filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries suffered in a road traffic accident which occurred on 24.04.2013. It is stated that the claimant was coming from Vaddikere to Chitradurga on service road in his motor bike bearing Chassis No.MBLHA-10-A-WDHC-67008 along with pillion rider – Basavaraj. At that time KSRTC Bus bearing No.KA-17-f-1215 came in a rash, negligent manner and dashed against the motor cycle. As a result, the claimant sustained comminuted fracture of both the bones of right leg and he was inpatient for 21 days. It is stated that he was working as driver and was earning Rs.20,000/- per month.
3. On service of summons the 1st respondent – KSRTC appeared before the Tribunal and filed its objections denying the petition averments. It is also stated that the KSRTC Bus was not responsible for the accident. The claimant examined himself as PW.1 and also examined PWs.2 and 3, the Doctor and another witness in support of his case. The claimants got marked documents Exs.P1 to 39. On behalf of the respondent, RW.1 was examined and Ex.R.1 was marked. The Tribunal based on the material on record awarded total compensation of Rs.4,16,141/- which is as follows :-
“1. Pain and sufferings - Rs.50,000/-
2. Treatment expenses - Rs.10,733/-
3. Permanent disability (15% of Rs.8250/- x 12 x 18) -Rs.2,67,408/-
4. Loss of Income for six months (Rs.5,500 x 6) 33,000/-
5. Loss of amenities/comforts 25,000/-
6. Conveyance 5,000/-
7. Future treatment expenses Rs.4,16,141/-
Rounded off to Rs.4,16,150/-
and fastened of 50% contributory negligence on the claimant. Aggrieved by the same, the claimant appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the respondent – Karnataka State Road Transport Corporation (for short ‘the KSRTC’). Perused the lower court records.
5. It is the case of the appellant/claimant that the claimant sustained fracture of both bones of right leg and he was inpatient for 21 days. The monthly income taken by the Tribunal at Rs.5,500/- is on the lower side. It is his further submission that the Doctor – PW.2 has opined that the claimant has suffered 33% permanent disability, whereas the Tribunal has taken the disability at 15%. Further he submits that the Tribunal has committed an error in fastening contributory negligence to an extent of 50% on the claimant. He submits that the claimant was riding the motor cycle on service road and the KSRTC bus came in a rash and negligent manner and dashed against the motor cycle, due to which he suffered injuries. He further submits that service road was 20 feet in width and the driver of the KSRTC bus was charge sheeted. Therefore, the Tribunal could not have held that the claimant is liable to an extent of 50% contributory negligence.
6. Per contra, learned counsel appearing for the respondent – Corporation would submit that the Tribunal has rightly fastened contributory negligence to an extent of 50% on the claimant. He invites the attention of this Court to the cross-examination of PW.1/claimant wherein he states that he lost control of the vehicle and dashed to the middle portion of the bus. He further states that the Tribunal could not have taken the future prospects at 50% to determine the compensation on the head ‘Loss of future income’. He would be entitled to an extent of 40%.
7. Having heard the learned counsel for the parties and having perused the lower Court records, I am of the view, that the judgment and award passed by the Tribunal requires modification. The first contention of the appellant/claimant is that the Tribunal committed an error in fastening 50% contributory negligence on the claimant/appellant. He submits that he was riding motor cycle on service road which was 20 feet in width and KSRTC bus came in a rash, negligent manner and dashed against the motor cycle. But to know the exact spot of the accident and as to how the accident has taken place the sketch is not produced before the Tribunal. The counsel for the appellant only relies upon the charge sheet and police records to contend that the Tribunal is wrong in fastening the contributory negligence on the appellant/claimant. In the cross- examination, the claimant has admitted as follows :-
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8. The above portion of the cross-examination of claimant would indicate that he lost control of the motor cycle and had hit the middle portion of the KSRTC Bus. It is not the case of the claimant that the bus had dashed against the motor cycle, on the other hand, he lost control and had dashed against the KSRTC Bus. In the circumstances, when the admission of the claimant is very clear, no other document would come to the aid of the claimant to say that the Tribunal committed an error in fastening 50% contributory negligence on the claimant. The finding of the Tribunal on that issue is just and proper.
9. The accident is of the year 2013. The claimant has produced driving license to say that he was working as a driver. He also claims that he was earning Rs.20,000/- per month, but he has not produced any documents to show that he was earning Rs.20,000/- per month. The claimant has also not stated with whom he was working and whether he was running a Taxi. In the absence of all those particulars, the Tribunal has to determine the income of the claimant- injured on notional basis. This Court and the Lok Adalath while determining the compensation for the motor accidents of the year 2013, it would take monthly income of Rs.8,000/- on notional basis. In the case on hand, in the absence of any document to indicate the exact income of the claimant, it would be appropriate to take the monthly income of the appellant/claimant at Rs.8,000/- on notional basis. The Tribunal has added 50% to his monthly income, as he was aged 40 years he would not be entitled for 50%, but he would be entitled to 40% to be added to his income. PW.2 - the Doctor has stated in his evidence that the claimant has suffered permanent physical disability of 33%, PW.2 – the Doctor is not the treated Doctor. The Tribunal looking into the injuries suffered i.e., fracture of both bones of right leg and the evidence of PW.2 – the Doctor has rightly assessed the physical disability of the appellant at 15%. Thus the claimant would be entitled for ‘Loss of future income’ as follows :-
Rs.8000/- x 40% = Rs.3,200/- Rs.8,000/- + Rs.3,200/- = Rs.11,200/-
Rs.11,200/- x 12 x 18 x 15% = Rs.3,62,880/-
The compensation granted on the head of ‘Conveyance’ at Rs.5,000/- is on the lower side. Admittedly the claimant was inpatient for 21 days. Thus the claimant would be entitled for modified compensation of Rs.5,11,613/- as against the compensation of Rs.4,16,141/- awarded by the Tribunal, which is as follows :-
1. Pain and suffering Rs.50,000-00 2. Treatment expenses Rs.10,733-00 3. Permanent disability Rs.3,62,880-00 4. Loss of income for six months Rs. 48,000-00 5. Loss of amenities Rs. 25,000-00 6. Conveyance Rs. 15,000-00 Total Rs.5,11,613-00 Accordingly, the appeal is partly allowed. The claimant would be entitled for 50% of the total compensation i.e., Rs.2,55,806/- as he is held liable for 50% contributory negligence.
Sd/- JUDGE NG* CT:bms