IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO.8566 OF 2014 (MV) BETWEEN Sri K R Ramaswamy Iyengar Son of Sri. Rangaswamy Iyengar Aged about 58 years Residing at Iyengar’s Bakery Kodihalli, Kanakapura Taluk Ramanagara District – 581453.
(By Smt. Suma Patil., Advocate. for Sri. Prashanth S.H., Advocate) AND 1. Managing Director Central office, K H Road KSRTC, Shanthinagar Bangalore – 560027.
2. Sri. Ramu Son of Sri. Sharanappa Aged 36 years Kanakapura Depot Driver Badge No.3622 KSRTC, Kanakapura-581453.
(By Sri. K S Abhijith, Advocate for Sri B L Sanjeev., Advocate for R-1;
... Appellant ... Respondents Vide order dated 21.03.2018, Appeal stands dismissed against Respondent No.2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 06.09.2014 passed in MVC No. 1817/2011 on the file of the Judge, Court of Small Causes, and XXVI ACMM, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT Though this matter is listed for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant/claimant against the judgment and award dated 06.09.2014 passed by the Tribunal in MVC No.1817/2011, seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that the appellant was running a bakery at Kodihalli, Kanakapura Taluk. Further, that on 27.02.2010 he had been to Bangalore to attend some domestic function and when he was returning back to Kanakapura in a KSRTC bus bearing No.KA-40-F-66 at about 9.00 p.m. near Kallahalli Gate, another KSRTC bus bearing Registration No.KA-40-F-65 was proceeding in front of the bus in which he was travelling, in a rash and negligent manner. Due to the rash and negligence of the bus bearing No.KA-40-F-65, the driver of the bus in which the appellant was proceeding, i.e., KA-40-F-66 had suddenly applied brake and stopped the bus, due to which the appellant who was standing by the side of the driver seat fell down and suffered multiple injuries to his head, back, hands and legs. Thereafter, he took treatment as an in-patient in BGS Global Hospital for the injuries suffered by him in the accident and had incurred medical expenses. Prior to the accident he was hale and healthy and was earning Rs.15,000/- by his bakery business. Due to the injuries sustained, he being not able to carry on his business as before, filed a claim petition against the respondents seeking compensation.
4. In pursuance of issuance of notice, respondent no.1 - Insurer appeared through counsel and filed its written statement denying all the petition averments including occurrence of the accident, rash and negligent driving of the KSRTC bus by its driver as the cause for the accident and the injuries sustained by the appellant and treatment taken for those injuries and the alleged disability. But Respondent No.2 – driver of the offending KSRTC bus failed to appear before the Tribunal and was placed exparte. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, the claimant / appellant got himself examined as PW.1 and examined two witnesses as PWs 2 and 3 and got marked 20 documents as per Exhibits P1 to P20. Respondent No.1 got marked the statement of the appellant before their official as Ex.R1 during the course of cross-examining the appellant. The Tribunal after hearing the learned counsel for the appellant as well as respondent insurer, and on evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.1,22,000/- with interest @ 6% p.a. from the date of petition till its realisation. It is this judgment which is under challenge in this appeal, by urging various grounds.
5. Learned counsel for the appellant contends that the compensation awarded under all the heads by the Tribunal is very meager and particularly, compensation towards ‘Pain and suffering’ due to the injuries requires to be enhanced considerably, since due to the head injury, he had lost his memory power. The Wound certificate at Ex.P9 coupled with the Discharge summary at Ex.P.14 and the evidence of PW.3 the Consultant Neurosurgeon, goes to show that the appellant had sustained multiple injuries like abrasion on his right parietal region and brain injury. PW.3 had opined that due to the head injury and brain injury sustained by the appellant, he suffered Neurobehavioral disability at 25% and whole body disability at 43.05%. The said evidence has been ignored by the Tribunal while awarding compensation.
It is the further contention of the learned counsel the appellant had been treated as an in-patient in BGS Global Hospital for a period of eight days. Hence, the compensation of a paltry sum of Rs.4,000/- awarded by the Tribunal towards attendant charges, nutritious food and transportation expenses is very much inadequate and the same also requires enhancement suitably. Moreover, the compensation awarded by the Tribunal towards loss of amenities and future happiness at Rs.10,000/- is also on the lower side and prays that the same be enhanced considerably having regard to the fact that the appellant had undergone mental illness and had lost his memory power due to the accident. On all these grounds, learned counsel for appellant prays for allowing the appeal and enhancing the compensation suitably.
6. Per contra, learned counsel for the respondent- insurer contends that the accident had not occurred due to the negligence on the part of the driver of the KSRTC bus. Whereas the injuries sustained by the appellant were due to his own negligence. He contended that the compensation granted by the Tribunal was exorbitant and that the Insurance Company was not liable to pay compensation to the appellant and hence prayed for dismissal of the appeal.
7. In the background of the contentions taken by learned counsel for the appellant and learned counsel for the respondent – insurer as stated supra, it is relevant to state that there is no dispute with regard to the accident that occurred on 27.02.2010, wherein the driver of the offending KSRTC bus bearing No.KA-40-F- 65 drove the same in a rash and negligent manner in high speed without observing traffic rules, as a result of which the KSRTC bus which was behind the offending bus had applied sudden brake and stopped the bus due to which the appellant sustained multiple injuries including head injury and abrasions all over the body. The claim petition is supported by the oral and documentary evidence such as FIR, Complaint, charge- sheet, witnesses statement, panchanama, wound certificate, IMV report, etc.
8. The appellant has claimed that he was running a bakery and was earning Rs.15,000/- per month. Due to the injuries sustained, he was prevented from carrying on his business for a considerable period of time. He would have suffered inconvenience and would have been put to great hardship due to the fact that he had suffered loss of memory due to brain injury. Hence, I find that the sum of Rs.25,000/- awarded by the Tribunal towards ‘Pain and suffering’ is on the lower side. I find it just and proper to enhance the same by another sum of Rs.15,000/-, which would meet the ends of justice.
Further, I find that compensation of Rs.4,000/- awarded by the Tribunal towards ‘Attendant charges, nutritious food and transportation charges’ is on the lower side, having regard to the fact that the appellant had been an in-patient in the hospital for eight days. Hence, I hereby enhance the compensation towards the said head by another Rs.6,000/-, which would meet the ends of justice.
Having regard to the fact that the appellant had suffered head injury and as a result loss of memory, he as well as his family members would have been put to utmost suffering. Hence, I find that the compensation of Rs.10,000/- granted towards ‘Loss of amenities and future happiness’ is very much on the lower side and requires enhancement. I find that it would be just and proper to enhance the same by another Rs.19,000/-. Hence, the compensation towards ‘Loss of amenities and future happiness’ is enhanced by another sum of Rs.19,000/-. I find that the compensation granted under all other heads requires no interference.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Attendant charges, nutritious expenses & transportation charges Loss of income during laid up period Loss of amenities and future happiness TOTAL Thus, in all, the claimant / appellant is entitled to a total compensation of Rs.1,62,000/- as against Rs.1,22,000/- awarded by the tribunal.
10. Accordingly, the appeal is allowed in part.
The impugned judgment and award dated 06.09.2014 passed by the Tribunal in MVC No.1817/2011 is hereby modified. The claimant/appellant is entitled for enhanced compensation of Rs.40,000/- with interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the entire amount shall be released in favour of the appellant on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE KS