IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR. JUSTICE B MANOHAR M.F.A. No.6116/2011 C/W.MFA.CROB.2/2012 (MV) MFA NO 6116 OF 2011 BETWEEN:
THE MANAGING DIRECTOR, KSRTC, K.H.DOUBLE ROAD, SHANTHINAGAR, BANGALORE – 560 026. ... APPELLANT (BY SMT.AMBIKA.M. FOR SRI.G.SHANKAR GOUD, ADV.) AND:
SRI NAGARAJU, S/O RAMEGOWDA, AGED ABOUT 30 YEARS, R/O YADAVANAHALLI VILLAGE, CHILURE POST, MARALAWADI HOBLI, KANAKAPURA TALUK, BANGALORE RURAL DISTRICT, BANGALORE. ... RESPONDENT (BY SRI.K.SHANTHARAJ, ADV.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 29.10.2010 PASSED IN MVC NO.43/2009 ON THE FILE OF MEMBER, ADDITIONAL MACT & ADDITIONAL CIVIL JUDGE(SR.DN.), RAMANAGARA, AWARDING A COMPENSATION OF Rs.4,14,840/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
MFA.CROB NO.2/2012 BETWEEN:
SRI NAGARAJU, S/O RAMEGOWDA, AGED ABOUT 32 YEARS, R/O YADAVANAHALLI VILLAGE, CHILURE POST, MARALAWADI HOBLI, KANAKAPURA TALUK, BANGALORE RURAL DISTRICT.
... CROSS OBJECTOR (BY SRI.K.SHANTHARAJ, ADV.) AND:
THE MANAGING DIRECTOR, KSRTC, K H DOUBLE ROAD, SHANTHINAGAR, BANGALORE – 560 027. ... RESPONDENT (BY SMT.AMBIKA.M. FOR SRI. G SHANKAR GOUD, ADV.) THIS MFA.CROB IN MFA.NO.6116/2011 IS FILED U/O 41 RULE 22 OF CPC, R/W SEC. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 29.10.2010 PASSED IN MVC NO.43/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(SR.DN), MEMBER, ADDITIONAL MACT, RAMANGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA ALONG WITH MFA.CROB COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The Managing Director, KSRTC as well as the claimant have filed the appeal and the Cross objection against the judgment and award dated 29th October 2010 made in MVC No.43/2009 by the Additional Motor Accident Claims Tribunal, Ramanagara, (hereinafter referred to as "the Tribunal" for short).
2. The KSRTC being aggrieved by the judgment and award so far as fastening the liability on it to compensate the claimant filed the appeal with regard to negligence of the rider of the two wheeler and that the quantum of compensation awarded is on the higher side. Whereas, the claimant has filed the Cross objection being not satisfied with the quantum of compensation and seeking for enhancement of compensation.
3. The parties are referred to as per their ranking in the Tribunal.
4. The claimant filed the claim petition contending that on 7.5.2006, when he was riding Motor Cycle bearing Reg.No.KA.42.E.2515 on B.M.Road, Archakarahalli gate, Ramanagara Town, and when he was about to take U turn to the right side, at that time, the driver of the KSRTC bus bearing Reg.No.KA.07.F.1040 came in a rash and negligent manner and dashed against the motorcycle. Due to which, claimant fell down and sustained grievous injuries. Immediately after the accident, he was shifted to Government Hospital Ramanagara. Thereafter, he was shifted to NIMHANS and then he has taken treatment at St.John Hospital. He spent huge money for his treatment. It is further contended that, prior to the accident he was working as agriculturist and also doing milk vending business and earning Rs.8,000/- per month and in view of the injuries sustained he has suffered permanent disability and even now he could not do the work as he was doing prior to the accident. Therefore, he filed the claim petition seeking compensation of Rs.4,00,000/-.
5. The KSRTC defended the case by filing written statement, contending that due to the negligence on the part of the rider of the motor cycle as he has abruptly came from extreme left side to right side of the road and taken U turn without giving any signal the accident occurred and the driver of KSRTC bus was driving the bus in a slow and careful manner. Hence, sought for dismissal of the claim petition.
6. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
7. In order to prove his case, claimant got examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P98. The Doctor who has treated the claimant is examined as PW2 and got marked Exs.C1 to C3. On behalf of the respondent, the driver of the bus is examined as RW1 and got marked the copy of the judgment made in CC No.400/2006 as Ex.R1.
8. The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration the Spot mahazar, copy of the complaint and the charge sheet, held that due to the actionable negligence on the part of the rider of KSRTC Bus, the accident occurred as it has dashed against the hind side of the motor cycle, due to which, rider of the motor cycle fell down and sustained injuries. Hence, claimant is entitled for compensation. In the accident, claimant sustained injuries to frontal lobe, parietal lobe, temporal lobe and CT brain showed fracture frontal bone and bilateral basi frontal resolving contusions with mild diffuse cerebral edema and hairline fracture involving left frontal lobe and the Doctor, who has treated the claimant assessed the disability to an extent of 59% to the whole body. The Tribunal, taking into consideration the income of the claimant at Rs.3,000/- per month with disability at 59% to the whole body and applying multiplier of ’16’ as he was aged about 32 years, has awarded a sum of Rs.3,39,840/- towards loss of future earning capacity, Rs.25,000/- towards pain, shock and agony, Rs.40,000/- towards medical expenses and in all Rs.4,14,840/- with 6% interest per annum. The liability has been fastened on the KSRTC to compensate the claimant. Being aggrieved by the judgment and award passed by the Tribunal, KSRTC has filed an appeal both on the ground of negligence and also on the quantum of compensation and whereas, the claimant being dis-satisfied with the quantum of compensation has filed the cross objection.
9. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
10. Smt. Ambika M., learned counsel appearing for the KSRTC contended that on 7.5.2006 the rider of the Motor cycle as well as the driver of KSRTC bus are proceeding towards Mysore. Near Archakarahalli gate, the rider of the motorcycle who was proceeding on the extreme left side of the road came extreme right side of the road to take U turn to go to Srinivasa Kalyana Mantapa without giving any signal and the KSRTC bus dashed against the motorcycle and claimant has sustained injuries and the accident occurred due to the negligence on the part of the rider of the motor cycle. Further, she submits that the sketch produced clearly discloses that due to negligence on the part of the rider of the motor cycle accident occurred.
11. On the other hand, Sri.K.Shantharaj, learned counsel appearing for the claimant contended that, when the vehicle was proceeding towards Mysore, in order to take a right turn at Archakarahalli gate, he slowed down the motorcycle and KSRTC bus came in a rash and negligent manner and dashed against the motor cycle and hence, due to rash and negligent driving by the driver of the KSRTC bus the accident occurred and there is no negligence on the part of the rider of the motor cycle.
12. On perusal the copy of the Sketch and Spot mahazar, they clearly disclose that accident occurred on the right side of the road and rider of the motorcycle came to the right side in order to take U turn, however, KSRTC bus came from the very same direction without noticing the rider taking U turn, dashed against the motorcycle, due to which, rider of the motorcycle fell down and sustained injuries. Hence, there is no contributory negligence on the part of the rider of the motorcycle. If the driver of the bus had taken certain precaution and maintained certain distance from the vehicle, the accident would have been avoided. Hence, due to the negligence on the part of the driver of the KSRTC bus, the accident occurred.
13. With regard to quantum of compensation is concerned, the claimant is an agriculturist and also doing milk vending business. The RTC extracts and pass book of the Milk dairy has been produced to substantiate the same. However, in the RTC Extracts and in the pass book of the Milk dairy, the name of the claimant has not been mentioned. The accident occurred in the year 2006, claimant was at his prime age of 32 years and he has sustained injury. Hence, it is appropriate to take the income of the claimant at Rs.4,000/- per month instead of Rs.3,000/- as taken by the Tribunal. With regard to percentage of disability is concerned, the Doctor who has treated the claimant has assessed the disability to an extent of 59% to the whole body. In view of the hairline fracture of anterior frontal lobe and bilateral basifrontal resolving contusions with mild diffuse cerebral edema, the claimant is unable to do any work and there is visual impairment, mental illness and photo phobia. The disability assessed by the Doctor is in accordance with law. Hence, taking the income of the claimant at Rs.4,000/- per month, with disability at 59% and applying multiplier ‘16’ since he was aged about 32 years, the claimant is entitled for the compensation of Rs.4,53,120/- as against Rs.3,39,840/- awarded by the Tribunal towards loss of earning capacity. The sum of Rs.25,000/- awarded towards pain and suffering is on the lower side. In view of the injuries he has sustained in the accident he has suffered a lot. Hence, he is entitled for another Rs.25,000/- towards pain and suffering. Further, no compensation is awarded by the Tribunal towards loss of income during the laid up period. In view of the injuries sustained, claimant is out of employment for a period of three months. Hence, he is entitled for Rs.12,000/- under the said head. Further, claimant is entitled for Rs.20,000/- towards loss of amenities to his life in addition to Rs.10,000/- awarded by the Tribunal, since he had to lead the life with that disability. Further, the compensation awarded by the Tribunal towards medical expenses is in accordance with law. Hence, the claimant is entitled to the enhanced compensation of Rs.1,70,280/- in addition to Rs.4,14,840/- awarded by the Tribunal with 6% interest. Accordingly, I pass the following:
ORDER M.F.A.No.6116/2011 filed by the KSRTC is dismissed. The Cross objection No. 2/2012 filed by the claimant/cross objector is allowed in part.
The judgment and award dated 29th October 2010 made in MVC No.43/2009 by the Motor Accident Claims Tribunal, *Ramanagara, is hereby modified. The claimant is entitled for the enhanced compensation of Rs.1,70,280/- with 6% interest p.a.
75% of the enhancement compensation shall be released in favour of the claimant.
The amount in deposit shall be transferred to jurisdictional Tribunal, forthwith, for disbursement.
* Corrected Vide Court order dated: 11.04.2017.
In view of the disposal of the main matters, all the I.As pending in the appeal as well as the Cross objections are disposed of as having become infructuous.
Sd/- JUDGE tsn*