IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.5297/2015 [MV] BETWEEN:
SRI. H.D. GOPAL S/O DYARAPALLAPPA NAIK AGED ABOUT 48 YEARS R/AT HULADENAHALLI VILLAGE TEKAL HOBLI, MALUR TALUK KOLAR DISTRICT.
... APPELLANT (BY SRI GOPAL KRISHNA N., ADV.) AND:
THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION K.H.ROAD, SHANTHI NAGAR BANGALORE-560 027.
(BY SRI K NAGARAJA, ADV.) ... RESPONDENT THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2014 PASSED IN MVC NO.2105/2013 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is before this Court, praying for enhancement of compensation awarding loss of income during the laid up period i.e., from the date of accident 21.10.2006 to 2012, the date on which, the claimant took voluntary retirement from service from the respondent/BMTC.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 21.10.2006, while the claimant was on duty as a driver in BMTC bus bearing registration No.KA-01/F-1815, a KSRTC bus bearing registration No.KA-07/F-960 came from opposite direction driven in a rash and negligent manner and dashed to claimant’s vehicle, due to which, the claimant sustained grievous injuries. Immediately he was shifted to Hosmat hospital, wherein he took treatment as inpatient from 21.10.2006 to 26.10.2006. It is stated that he was getting salary of Rs.9,000/- p.m.
3. On appearance, the respondent/BMTC filed its objection denying the claim petition averments contending that the accident did not take place due to the rash and negligent driving of the KSRTC bus, but the claimant himself was responsible for the accident. It was also contended that the claimant in collusion with the Police got registered a case against the KSRTC bus driver.
4. The claimant got examined himself as P.W.1 and also examined the doctor as P.W.2 and P.W.3 Depot Manager of the respondent/BMTC, apart from marking the documents as Ex.P1 to Ex.P17.
5. The Tribunal, based on the material on record awarded total compensation of Rs.80,000/- with interest at the rate of 6% p.a., from the date of petition till realization. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/BMTC. Perused the material on record including the lower court records.
7. Learned counsel for the appellant/claimant submits that due to accidental injuries suffered, the claimant could not continued to work as a driver and he was not paid salary from the date of accident i.e. from 21.10.2006 till he took voluntary retirement in 2012. Therefore, he is entitled for loss of income during the laid up period. He invites the attention of this Court to the evidence of P.W.3 wherein he points out that the claimant has not discharged his duty as driver subsequent to the accident. It is his further submission that the claimant has suffered 15% whole body disability as per the evidence of P.W.2-doctor. The Tribunal has failed to properly appreciate the same.
8. Per contra, learned counsel for the respondent/BMTC submits that the claim petition is filed after 7 long years from the date of occurrence of the accident, that too after the claimant taking voluntary retirement from service from the respondent/BMTC. There is no material to indicate that the claimant was denied salary from the date of accident till he took voluntary retirement in the year 2012. In the absence of any material on record, the claimant is not entitled for loss of income during the alleged laid up period. Further, he submits that the compensation awarded by the Tribunal is just compensation which needs no interference. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the entire material on record, including the lower court records, the only point which falls for consideration in this appeal is as to whether the claimant would be entitled for enhanced compensation, in the facts and circumstances of the case?
10. The claimant would not be entitled for enhanced compensation for the following reasons:
The accident is said to have taken place on 21.10.2006 involving the BMTC bus bearing registration No.KA-01/F-1815 and a KSRTC bus bearing registration No.KA-07/F-960, but the claimant filed claim petition on 09.04.2012 i.e., after 7 years from the date of accident. It is pertinent to note here that the claimant took voluntary retirement from service in the year 2012. The claim petition is filed after taking voluntary retirement from the respondent/BMTC. The main contention of the claimant is that he was not paid salary from the date of accident, till he retired voluntarily. It is his submission that the claimant was not fit for driving the bus, as such he was not given the work of driver.
11. The claimant examined P.W.3-Depot Manager of BMTC, who has deposed that the claimant met with an accident on 21.10.2006 as per the records and after that he has not discharged his duty as driver in BMTC. Further states that the claimant had not made any representation to accommodate alternate work. He has not even produced any piece of document to demonstrate that he was not paid salary from the date of accident till he retired voluntarily from service. There is inordinate delay in filing the claim petition, that too, the claim petition is filed after he took voluntary retirement from the service of respondent/BMTC. There is no explanation from the claimant as to why claim petition was filed after 7 long years.
12. The Tribunal, based on the material available on record awarded total compensation of Rs.80,000/- which included Rs.50,000/- towards pain and suffering and Rs.30,000/- towards loss of amenities. P.W.2- doctor had opined that the claimant suffers 15% whole body disability. Even though the claimant had suffered 15% whole body disability, he had not made any representation to the respondent/BMTC to provide alternate work, which the respondent would have obliged. Moreover, the claimant has taken voluntary retirement from service. There is no evidence or material to show that the claimant suffers functional disability. Accordingly, the compensation awarded by the Tribunal is just compensation, which needs no interference. The appeal is dismissed.
mpk/-* CT:bms Sd/-
JUDGE