IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.9196 OF 2013 [MV] C/W MISCELLANEOUS FIRST APPEAL No.8924 OF 2013 MFA No.9196/2013 BETWEEN Sri G Bhaskar Adiga s/o Ganapaiah Adiga Aged about 57 years r/a No.9/187, Marigudi Street, Devangapet Kollegal-571440. ... Appellant [By Sri Mahadeva Swamy P, Advocate] AND Divisional Controller K.S.R.T.C.
Chamarajanagar Division Chamarajanagar-571441. ... Respondent [By Sri F S Dabali, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 8.7.2013 passed in MVC No.12/2012 on the file of the Senior Civil Judge & JMFC, Kollegala, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA No.8924/2013:
BETWEEN:
Divisional Controller K.S.R.T.C.
Chamarajanagar Division Chamarajanagar-571313.
Now by the Managing Director K.S.R.T.C. Central Offices K H Road, Bangalore-560 027 Rep. by its Chief Law Officer. ..Appellant (By Sri F S Dabali, Advocate) AND:
G Bhaskar Adiga s/o Ganapaiah Adiga Aged about 57 years r/a No.9/187, Marigudi Street, Devangapet, Kollegal Dist:Chamarajanagar PIN : 571440. .. Respondent (By Sri Mahadevaswamy P, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 8.7.2013 passed in MVC No.12/2012 on the file of the Senior Civil Judge & JMFC, Kollegal, awarding a compensation @ 8% p.a. from the date of petition till the date of depositing the amount in court.
These MFAs coming on for hearing this day, the Court delivered the following:
JUDGMENT MFA No.9196/2013 is preferred by the claimant and MFA No.8924/2013 is filed by the KSRTC. Both the appeals are directed against the judgment and award dated 8.7.2013 passed in MVC No.12/2012 on the file of the Senior Civil Judge & JMFC, Kollegal, wherein a total compensation of Rs.7,31,355/- has been awarded to the claimant for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the claimant and learned counsel appearing for the KSRTC.
3. The case of the claimant is that on 7.12.2011 at about 6.30 p.m, he was riding his TVS Excel two wheeler bearing Regn. No.KA-10/E-4343 and near Madegowda Petrol Bunk, Kollegal, a KSRTC bus bearing Regn. No.KA- 10/F-0011 driven by its driver in a rash and negligent manner came from the opposite direction and dashed against his vehicle, as a result of which, he sustained grievous injuries and he was shifted to Government Hospital at Kollegal and after first aid, he was shifted to K R Hospital, Mysore, wherein he took treatment as an inpatient from 7.12.2011 to 29.12.2011 and also underwent surgery. It is his further case that he was hale and healthy prior to the accident and getting monthly salary of Rs.12,000/- by working as Secretary of Grama Panchayat and due to the accidental injuries, he suffered permanent disability and he is unable to attend his regular work and therefore, he suffered loss of income.
4. Before the Tribunal, claimant was examined himself as PW1 and two doctors were examined as PWs.2 and 3. Ex.P1 to P20 were marked in evidence. Claim petition was opposed by the respondent – Insurance Company. RW1 was examined and no document was marked on behalf of the respondents.
5. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.7,31,355/- under the following heads:
1. Loss of earning during the laid off period. - Rs.1,45,048/-
2. Pain and suffering - Rs.1,00,000/-
3. Loss of amenities - Rs.1,00,000/-
4. Medical expenses - Rs.3,26,307/-
5. Food and nourishment - Rs. 25,000/-
6. Attendant charges - Rs. 10,000/-
7. Conveyance and other - Rs. 15,000/- Sundry expenses - Rs. 10,000/-
Total Rs.7,31,355/-
6. The contention of the learned counsel for the appellant/claimant is that the Tribunal has not awarded any compensation towards loss of income due to disability, though the Tribunal has assessed the physical disability in relation to the whole body at 30%. It is also contended that the total compensation awarded under the conventional heads are on the lower side and incidental charges awarded are also on the lower side. Accordingly, learned counsel seeks to enhance the compensation awarded by the Tribunal.
7. Learned counsel for the KSRTC would contend that the appellant was working as Secretary at Grama Panchayath, Kollegal. There is nothing to show that the appellant was terminated from service on account of the accidental injuries. Hence, he submits that the Tribunal was justified in not awarding any compensation towards loss of income due to disability as there is no loss of income. He would further submit that the Tribunal has awarded excess compensation under the head pain and suffering and loss of amenities and also medical expenses. Accordingly, learned counsel seeks to dismiss the appeal filed by the claimant and allow the appeal filed by the KSRTC and to reduce the compensation awarded by the Tribunal.
8. The accident in question involving the KSRTC bus bearing Regn. No.KA-10/F-0011 and the claimant sustaining injuries in the said accident owing to the actionable negligence on the part of the driver of the bus is not in dispute.
9. It is the case of the claimant that he was working as Secretary in the Grama Panchayat and drawing gross salary of Rs.11,244/-. Further, the doctor has assessed the disability to an extent of 30 to 35% in relation to the whole body and according to PW3, the disability is to an extent of 20% in relation to the whole body. It is contended by the learned counsel for the appellant/claimant that the Tribunal has assessed the disability in relation to the whole body at 30% and not awarded any compensation towards loss of future income due to disability.
10. It is not disputed that the claimant was working as Secretary of a Grama Panchayat and he was getting gross salary of Rs.11,244/- p.m. and after deduction, he was getting net salary of Rs.8,726/- p.m. The claimant was aged about 56 years at the time of accident. As rightly observed by the Tribunal, there is no evidence either oral or documentary to show that the claimant was terminated from service on account of accidental injuries. On the other hand, admittedly, the claimant was continued in service and there is no loss of future income. However, in view of the fact that the claimant was absent for duty from 8.12.2011 to 30.12.2012 on account of injuries suffered by him. The Tribunal has awarded a sum of Rs.1,45,048/- towards loss of income during the laid off period.
11. The contention of the learned counsel appearing for the KSRTC is that the Tribunal has awarded excess compensation towards pain and suffering, loss of amenities and also medical expenses.
12. The claimant has got marked 108 medical bills and hospital bills running to Rs.3,25,858/- as per Ex.P14. Ex.P15 is 87 prescription slips. Ex.P16 is eight x-rays. Considering the same, a sum of Rs.3,26,307/- awarded under the head medical expenses is just and proper.
13. According to the wound certificate at Ex.P3, the same reveals that the claimant has sustained the following injuries:
1. Compound depressed fracture of right frontal bone.
2. CT Scan – (a) left fronto – temporal EDH (b) right fronto – temporo – pariental SDH with pneumocepholus.
(c) Haemorrhagic contusion on left Frontal and temporal lobe region.
14. The injuries are grievous in nature. Appellant was an inpatient from 7.12.2011 to 29.12.2011. He underwent bicranial skin flap raised and wound debridement done under GA on 8.12.2011. According to the medical evidence, CT Scan showed thin extra axial bleed in the left fronto parietal convexity. He underwent left parietal burr-hole and evacuation of sub acute subdural haematoma in left fronto – parietal region under GA on 19.12.2011. The evidence of PW3 goes to show that surgery was conducted on 8.12.2011, wound debridement done, loose fracture bone fragments removed, duroplastic done, bone defect was corrected with mesh. He had developed right haemiparesis. Hence, he was investigated with CT Scan of head which showed subacute/chronic subdural haemotoma in the left fronto parietal regional, for which, the claimant underwent surgery i.e. burrhole and evacuation of haematoma. According to PW3, the patient had suffered memory loss. The disability suffered assessed by PW2 is to an extent of 30 to 35% to the whole body and the disability assessed by PW3 is to an extent of 20% in relation to the whole body. Considering the overall evidence and material on record, the compensation awarded towards pain and suffering, loss of amenities are just and reasonable. Considering the medical evidence and other material on record, there is no loss of income due to disability. However, it is just and reasonable to award a sum of Rs.50,000/- towards disability. The compensation awarded under other heads are just and reasonable. Accordingly, the claimant is entitled for additional sum of Rs.50,000/- in addition to what has been awarded by the Tribunal. Hence, I pass the following: ORDER MFA No.9196/2013 filed by the claimant is allowed in part.
MFA No.8924/2013 filed by the KSRTC is dismissed.
The judgment and award dated 8.7.2013 passed in MVC No.12/2012 on the file of the Senior Civil Judge & JMFC, Kollegal, is hereby modified.
Appellant/claimant in MFA No.9196/2013 is entitled for additional sum of Rs.50,000/- in addition to what has been awarded by the Tribunal with interest at 6% p.a. from the date of petition till deposit.
The award amount shall be deposited by the KSRTC within a period of six weeks from the date of receipt of a copy of this order.
The amount in deposit in MFA No.8924/2013 shall be transmitted to the jurisdictional Tribunal.
Sd/- JUDGE Bkm