IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.8757 OF 2010 (MV) BETWEEN:
SRI H. RAJU SON OF SRI. HONNE GOWDA AGED ABOUT 30 YEARS RESIDING AT KRISHNA REDDY BUILDING TIRUPALYA, HEBBAGODI ROAD ANEKAL TALUK, BENGALURU DISTRICT.
... APPELLANT (BY SRI. PRADEEP NAIK. K, ADVOCATE) AND THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICE K H ROAD/DOUBLE ROAD SHANTHINAGAR, BENGALURU – 560 027.
... RESPONDENT (BY SRI. B. C. GURU, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.07.2009 PASSED IN MVC NO.4900 OF 2008 ON THE FILE OF VI ADDITIONAL JUDGE COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the claimant for enhancement in the compensation awarded by the VI Additional Judge, Court of Small Causes and MACT, Bangalore in MVC No.4900 of 2008 whereby the appellant’s claim petition is allowed and a total compensation of `2,50,727/- is awarded along with interest at the rate of 6% per annum.
2. The appellant suffered fracture injuries in his right leg and right hand in a road accident on 20.5.2008 when the offending vehicle, a KSRTC bus bearing registration No.KA- 06/F-360 insured with the respondent dashed against the motor cycle being driven by the appellant. The claimant presented the claim petition seeking total compensation of `6,00,000/-. The respondent – Corporation filed its objections contesting the claim petition inter alia on the ground that the appellant’s claim is based on the actionable negligence on the part of the driver of the offending vehicle.
The Tribunal formulated issues which required the appellant to establish that he was injured in a road accident because of the actionable negligence on the part of the driver of the offending vehicle. The appellant examined himself and the doctor, who had treated him as PWs.1 and PW.2 respectively. Further, the appellant marked exhibits P.1 to P.11. However, the respondent did not examine any witness.
The Tribunal upon appreciation of the material on record concluded that the road accident was a consequence of contributory negligence in the ratio of 75:25 between the driver of the offending vehicle and the appellant. Under these circumstances, the Tribunal computed a total sum of `2,50,727/- under the following heads:
3. In view of the finding as regards the contributory negligence, the Tribunal awarded a total sum of `2,51,000/- along with interest as aforesaid.
4. The learned counsel for the appellant argued against the impugned judgment and award on two counts. The Tribunal erred in its conclusion that the accident was a result of contributory negligence and the Tribunal also erred in taking the income of the appellant at `3,000/- per month ignoring Exhibit P.7, the Salary Certificate produced on behalf of the claimant. The learned counsel also contended that the Tribunal ought to have granted a higher sum towards pain and suffering, food and nourishment, attendant charges and travelling expenses.
5. Per contra, the learned counsel for the respondent – Corporation argued in support of the impugned judgment and he emphasized that the compensation awarded by the Tribunal is just and reasonable.
6. In view of the rival submissions, the question that arises for consideration is whether any interference with the impugned judgment and award is called for in this appeal on the ground of contributory negligence or on the quantum of compensation awarded by the Tribunal.
7. The appellant is examined as PW.1. He has spoken about the accident. He has relied upon the Police records. In cross-examination, the appellant has admitted that he saw the offending vehicle at a distance of about half a kilometre before it dashed against his bike. The Tribunal has drawn adverse inference against the appellant in view of this statement in evidence holding that when the appellant saw the vehicle at a distance of about half a kilometre, he should have been careful and moved to the left side of the road. The Tribunal has relied upon the mahazar, which is part of the Police record to conclude that the accident occurred in the middle of the road. However, on perusal of the spot mahazar, it is seen that the mahazar is rather inconclusive. Both the bike and the offending vehicle are shown as being on the middle of the road and the blood stained patch about 10 feet away from these vehicles. This statement in the spot mahazar cannot be construed as definite evidence that the accident occurred in the middle of the road. Merely because the appellant in his cross- examination stated that he saw the offending vehicle at a distance of half a kilometer before it hit him, it cannot be, especially in the absence of material to the contrary, concluded that he was responsible for the accident.
8. In the light of the aforesaid discussion, this Court is of the considered opinion that the finding of the Tribunal both as regards the contributory negligence and apportionment thereof is erroneous and unsustainable. The finding in this regard is set aside.
9. The Tribunal has discarded the salary certificate relied upon by the claimant to establish his monthly income on the ground that the author of the Certificate is not examined. The appellant who claims that he was being paid salary of `7,100/- per month based on Exhibit P.7, could have examined his employer and as the Tribunal has rightly rejected the claimants testimony, no credence can be attached to Exhibit P.7 Salary Certificate. However, it is undisputed that as per the Schedule award for the settlement in Lok Adalath, the notional income in the cases of accidents of the year 2008-09, is taken between `4500/- and `5000/-. The appellant is categorical in his evidence that he was working as a helper with a private limited company situated at Bommasandra Industrial Area, Jigani Road, Anekal, Bangalore. As such, this Court is of the considered opinion that it would be appropriate to take the notional income at `5000/- per month.
10. The Tribunal has awarded a sum of `65,000/- towards pain and suffering. The appellant has suffered three fractures. He has suffered fractures of both bones of right leg as well as fracture of the index finger of the right hand. He has undergone surgery for internal as well as external fixation. He was hospitalized for about 37days. He has stated that he finds it difficult to walk fast, run or stand for long time and he cannot lift or carry weights. In the aforesaid circumstances, a total sum of `75,000/- towards pain and suffering would be more appropriate. Similarly, the appellant would also be entitled for a total sum of `10,000/- towards food and nourishment, attendant charges. In view of the monthly income of the appellant being taken at `5,000/-, the appellant would be entitled to a total sum of `10,000/- and a total sum of `2,01,600/- towards loss of future earnings.
11. In view of the medical evidence, the Tribunal has rightly assessed the functional disability at 21% and no change is required in this.
12. Hence, if the compensation is computed with the following parameters in mind, the appellant would be entitled to a total enhanced compensation of `1,01,640/-.
Particulars Amount award by the tribunal Amount enhanced by this Court
(5000 x 12 x 16 x 21%
The appeal is allowed. The compensation to the appellant is enhanced from `2,50,727/- to `3,52,367/- The respondent is called upon to deposit the enhanced amount of `1,01,640/- with the Tribunal within a period of eight weeks from the date of receipt of a certified copy of this judgment along with interest at 6% p.a., excluding the delay period of 350 days in filing the appeal.
SD/- JUDGE nv