Karnataka High Court
Nagesh @ Nagaraja vs The Divisional Controller Nekrtc on 24 July, 2024
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NC: 2024:KHC-K:5272-DB
MFA No. 200089 of 2022
C/W MFA No. 200549 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.200089/2022 (MV-I)
C/W
MISCL. FIRST APPEAL NO.200549/2022(MV-I)
IN MFA NO.200089/2022
BETWEEN:
THE DIVISIONAL CONTROLLER
NEKRTC BUS DEPOT, YADGIRI,
(NOW REPRESENTED BY
CHIEF LAW OFFICER,
NEKRTC, NOW KKRTC,
KALABURAGI).
Digitally signed ...APPELLANT
by
BASALINGAPPA (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
SHIVARAJ
DHUTTARGAON
Location: HIGH AND:
COURT OF
KARNATAKA
NAGESH @ NAGARAJA
S/O AMBARESH,
AGE: 20 YEARS,
OCC: MASON AND COOLIE,NOW NIL,
R/O. BENGALURU,
NOW RESIDING AT BADIYAL,
TQ. AND DIST: YADGIRI.
...RESPONDENT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR
SRI. VEERANAGOUDA MALIPATIL, ADVOCATE)
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NC: 2024:KHC-K:5272-DB
MFA No. 200089 of 2022
C/W MFA No. 200549 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 24.08.2021 IN MVC
NO.231/2020 PASSED BY THE MEMBER, MACT NO.II YADGIR,
IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.200549.2022
BETWEEN:
NAGESH @ NAGARAJA
S/O AMBARESH,
AGE: 21 YEARS,
OCC: MASON AND COOLIE (NOW NIL)
R/O. BENGALUR,
NOW RESIDING AT BADIYAL,
TQ. AND DIST: YADGIR.
...APPELLANT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR
SRI. VEERANAGOUDA MALIPATIL, ADVOCATE
AND:
THE DIVISIONAL CONTROLLER
NEKRTC BUS DEPOT,
YADGIR- 585 224.
...RESPONDENT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE APPEAL, THE JUDGMENT AND AWARD DATED
24.08.2021 IN MVC NO.231/2020 ON THE FILE OF LEARNED
MEMBER MACT-II, AT YADGIR, MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-K:5272-DB
MFA No. 200089 of 2022
C/W MFA No. 200549 of 2022
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) These two appeals are arising out of common judgment and award dated 24.08.2021 passed in MVC No.231/2020 by the Member and MACT-II, Yadgir, hence, they are taken up together for final disposal.
2. The petitioner being dissatisfied with the compensation awarded by the Tribunal filed the appeal in MFA No.200549/2022 seeking for enhancement. The Insurance Company filed the appeal in MFA No.200089/2022 challenging the liability.
3. The parties are referred to as per their ranking before the Tribunal.
4. Brief facts leading rise to filing of these appeals are as under:
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NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 On 07.06.2020 at about 5.30 p.m., the claimant was proceeding in a NEKRTC bus bearing No.KA-33/F-0526 from Yadgir to Bengaluru. The said Bus was near Sanna Mouneshwar Temple, Gurgunta, on Lingasugur-Kalaburagi main road. The driver of the said bus driven the bus in a rash and negligent manner and in zigzag manner without following traffic rules, dashed to unknown lorry, which was coming from opposite direction, as the petitioner was sitting in the right side row of the bus sustained grievous injuries over the right hand. The petitioner was admitted in RIMS Hospital, Raichur, wherein he undergone surgery and there was amputation of above elbow right hand and he was discharged on 23.06.2020. Hence, he has spent huge amount towards medical expenses. The claimant was aged about 19 years as on the date of accident and working as mason and coolie at Bengaluru and earning Rs.20,000/-. He submits that the claimant is unable to do work, which he used to do prior to the accident. Hence, filed the claim petition under Section 166 of Motor Vehicles Act seeking for compensation of Rs.50,00,000/- from the -5- NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 date of petition on account of injuries sustained in road traffic accident.
5. The respondent-Corporation filed objections denying the averments made in the claim petition and also denied the occurrence of accident. It is contended that NEKRTC bus driver requested the claimant for removing the hand from the window, but the claimant neglected his advice many times. It is stated that the compensation claimed by the claimant is exorbitant and imaginary one and prayed to dismiss the claim petition.
6. The Tribunal on the basis of pleadings of the parties framed the issues. The petitioner in order to prove his case examined himself as PW.1 and in order to prove disability examined doctor as PW.2 and got marked 12 documents as per Exs.P1 to P12. The respondent examined the driver of the offending bus as RW.1 but no documents are marked. The Tribunal after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, allowed the claim petition in -6- NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 part with cost. It is ordered that the claimant is entitled to compensation of Rs.20,30,974/- with interest at the rate of 6% per annum from the date of petition till its realization and directed respondent to deposit the compensation amount within statutory period as contemplated under Section 168(3) of Motor Vehicles Act.
7. The petitioner being dissatisfied with the compensation awarded by the Tribunal filed MFA No.200549/2022. The respondent-Corporation aggrieved by the judgment and award has filed MFA No.200089/2022.
8. Heard the learned counsel for the petitioner and also learned counsel for respondent-Corporation.
9. Learned counsel for the petitioner submits that the Tribunal has failed to add future prospects to the income of the deceased. He further submits that the compensation awarded by the Tribunal on other heads is also on the lower side. He also submits that the claimant was aged about 19 years and earning Rs.20,000/- per -7- NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 month. The accident is of the year 2020. In the absence of income proof, the Tribunal ought to have taken notional income as per the guidelines issued by the Karnataka State Legal Services Authority. As per the chart, notional income for the year 2020 is Rs.13,750/- whereas the Tribunal has taken notional income at Rs.10,000/- per month. He also submits that the Tribunal was justified in passing the impugned judgment insofar as liability is concerned. Hence, on these grounds, he prays to allow the appeal filed by the petitioner and dismiss the appeal filed by the respondent.
10. Per contra, learned counsel for respondent- Corporation submits that there is contributory negligence on the part of the claimant also who has kept his hand in the window negligence despite the advise of driver of the bus and the accident was occurred due to negligence of the claimant. The Tribunal ought to have fastened liability on the claimant for contributory negligence. But the Tribunal has committed an error in fixing the liability -8- NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 wholly on the respondent. Hence, she submits that some portion of negligence be fixed on the petitioner/claimant. Hence, on these grounds, she prays to allow the appeal filed by the respondent-Corporation and prays to dismiss the appeal filed by the petitioner.
11. Perused the records and considered the submissions of learned counsel for the parties. The points that arise for our consideration are liability and quantum of compensation.
12. It is not in dispute that the petitioner met with an accident and sustained grievous injuries. It is not in dispute that in order to establish that the accident was occurred due to rash and negligent driving of offending vehicle, the petitioner has produced the certified copy of the FIR marked as Ex.P1 and certified copy of the complaint marked as Ex.P2 and certified copy of charge sheet marked as Ex.P3. From the perusal of Exs.P1 to P3, it discloses that RW.1 was driving the vehicle on the date of accident. Further, it is also not in dispute that the -9- NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 claimant was holding his hand in the window and unknown lorry came and hit to the hand of the petitioner, as a result, the petitioner has sustained grievous injuries. Thus, the petitioner has also contributed for the cause of accident. The Tribunal without considering the said aspect, has exonerated entire liability on the respondent. The Tribunal has committed an error in exonerating the entire liability on the respondent. As observed above, the petitioner was also negligent in laying his hand in the window. Thus, he has also contributed for cause of accident. Therefore, we hold that there is contributory negligence on the part of driver at 80% and 20% on the petitioner.
13. Insofar as quantum of compensation is concerned, though the petitioner has pleaded in the petition that he was doing work at Bengaluru and earning Rs.20,000/- per month, in order to substantiate the same, the petitioner has not produced any income proof. In the absence of proof of income, we assess the notional income
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NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 based on the chart issued by the Karnataka State Legal Services Authority. Since the accident is of the year 2020, as per the chart, we take notional income of the petitioner at Rs.13,750/- per month. The petitioner was aged about 19 years. In view of the law laid by the Hon'ble Apex Court in the case of Erudhaya Priya vs. State Express Transport Corporation Ltd., reported in 2020 SCC OnLine SC 601, 40% of the future prospects is to be added to the monthly income. Thus, it comes to Rs.19,250/- (13,750/- + 5,500/-). Thus, we assess the notional income of the deceased at Rs.19,250/- per month.
14. In order to prove disability the petitioner examined doctor as PW.2, Orthopedic Surgeon, who has deposed that he has examined PW.1 and issued the disability certificate as per Ex.P9. He has assessed the permanent disability of the petitioner at 80% and deposed loss of earning capacity to the extent of 90%. The Tribunal considering the evidence of PW.2 has assessed the
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NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 permanent physical disability at 90% which is just and proper and does not call for interference. Therefore, we assess loss of future income at Rs.37,42,200/- (19,250x12x18x90%).
15. Thus, considering the evidence of PW.2 and Exs.P6 and 9, we re-assess the compensation in the following heads.
Compensation awarded in Rs.
Particulars By the
By this Court
Tribunal
Loss of future income 19,44,000/- 37,42,200/-
on account of
permanent disability
Medical expenses 6,974/-
6,974/-
Pain and suffering
25,000/- 60,000/-
Diet and Attendant
charges, Conveyance 20,000/- 40,000/-
charges
Loss of income during
---- 57,750/-
laid up period
Loss of amenities ---- 1,00,000/-
Artificial limb 35,000/- 1,50,000/-
Marriage prospects ---- 1,00,000/-
Total Rs.20,30,974/- Rs.42,56,924/-
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NC: 2024:KHC-K:5272-DB
MFA No. 200089 of 2022
C/W MFA No. 200549 of 2022
16. Thus, as already discussed above, the petitioner has also contributed for the cause of accident. We quantify liability on both i.e., 80% on the respondent and 20% on the petitioner. Thus, the petitioner is entitled for deduction of 20% of compensation amount. (42,56,924-8,51,385) Thus, the petitioner is entitle for total compensation of Rs.34,05,539/- as against Rs.20,30,974/-. Thus the petitioner is entitled to enhanced compensation of Rs.13,74,565/-.
17. In view of the above discussion, we proceed to pass the following:
ORDER i. The appeal filed by the Corporation in MFA No.200089/2022 and MFA No.200549/2022 filed by the claimant are allowed in part. ii. The impugned judgment and award passed by the Tribunal is modified.
iii. Thus, the petitioner is entitle for total compensation of Rs.34,05,539/- as against Rs.20,30,974/-. Thus, the petitioner is
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NC: 2024:KHC-K:5272-DB MFA No. 200089 of 2022 C/W MFA No. 200549 of 2022 entitled to enhanced compensation of Rs.13,74,565/- with interest at the rate of 6% per annum from the date of petition till its realization.
iv. Respondent is directed to deposit the entire compensation amount with accrued interest before the Tribunal within a period of eight weeks from date of the receipt of copy of this judgment.
v. The registry is directed to transmit the amount in deposit and Trial Court records to the Tribunal.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(RAJESH RAI K) JUDGE SKS,VNR List No.: 1 Sl No.: 11 CT;BN