Karnataka High Court
Smt N Mangala vs The Managing Director on 27 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:23832
MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.5037 OF 2023(MV-I)
C/W
MFA CROSS OBJECTION NO. 105 OF 2023 (MV-I)
IN MFA NO.5037/2023
BETWEEN:
THE MANAGING DIRECTOR
KSRTC
CENTRAL OFFICE,
KENGAL HANUMANTHAIAH ROAD,
SHANTHINAGAR,
BENGALURU 560 027,
REP. BY ITS CHIEF LAW OFFICER.
...APPELLANT
Digitally (BY SRI. D. VIJAYAKUMAR, ADVOCATE)
signed by
YAMUNA K L AND:
Location: High
Court of
Karnataka SMT. N. MANGALA,
W/O. A.M. NAGARAJU,
AGED ABOUT 41 YEARS,
R/AT. NO. 234, BEHIND SHISHU VIHAR,
AGRAHARA, TUMAKURU TOWN,
TUMAKURU - 572 101
...RESPONDENT
(BY SRI. NAGARAJA M., ADVOCATE)
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NC: 2024:KHC:23832
MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED. 23.01.2023 PASSED IN MVC
NO.1991/2020 ON THE FILE OF THE 12TH ADDITIONAL JUDGE
AND ACMM, COURT OF SMALL CAUSES JUDGE, BENGALURU,
(SCCH-8), AWARDING COMPENSATION OF RS.4,42,276/-
WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA.CROB NO.105/2023
BETWEEN:
SMT. N. MANGALA,
W/O A.M. NAGARAJU,
AGED ABOUT 42 YEARS,
NO.234, BEHIND,
SHISHU VIHARA AGRAHARA,
TUMKUR TOWN, TUMKUR - 572 101
...APPELLANT
(BY SRI. NAGARAJA M., ADVOCATE)
AND:
THE MANAGING DIRECTOR,
K.S.R.T.C., CENTRAL DIVISION,
KENGAL HANUMANTHAIAH ROAD,
SHANTHINAGAR,
BENGALURU - 560 027
...RESPONDENT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF
THE CPC AGAINST THE JUDGMENT AND AWARD DATED
23.01.2023 PASSED IN MVC NO. 1991/2020 ON THE FILE OF
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NC: 2024:KHC:23832
MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
THE 12TH ADDITIONAL JUDGE, A.C.M.M., SMALL CAUSES
JUDGE, BENGALURU, (SCCH-8), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION.
THIS MFA AND MFA.CROB, COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/KSRTC has filed MFA No.5037/2023 challenging the judgment and award dated 23.01.2023 passed by the MACT and XII Additional Judge and ACMM Court of Small Causes Judge, Bangalore, in M.V.C.No.1991/2020 questioning the liability and also to reduce the quantum of compensation.
2. The appellant/claimant has filed MFA Crob No.105/2023 seeking to enhance the compensation awarded by the Tribunal in M.V.C.No.1991/2020 dated 23.01.2023.
3. Heard the arguments of learned counsel for both the appellants and respondents in the above MFA as well as the MFA Crob.
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023
4. The appellant in MFA CROB is the petitioner/claimant and the appellant/KSRTC in MFA No.5037/2023 was the respondent before the Tribunal.
5. For the sake of convenience the rank of the parties is referred to as per their ranking before the Tribunal.
6. The petitioner filed petition under Section 166 of the Motor Vehicles Act before the Tribunal claiming compensation of Rs.15,00,000/- for the injuries sustained by the petitioner in the road traffic accident that occurred on 10.02.2020 at 10.30 a.m. It is alleged by her in the petition that on 10.02.2020 at 10.30 a.m. in Tumkur Bus Stand, she boarded a KSRTC Bus bearing Reg.No.KA.42/F- 1941 in order to go to Nelamangala. Later she came to know from the Conductor that the bus was not going towards Nelamangala, but it is going towards Dabaspete route. Therefore, when she was about to get down from the bus, the driver of the bus without any signal from the Conductor, all of a sudden moved the bus due to the -5- NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 impact, the petitioner fell down and bus went on her left leg, as a result she sustained crush injury to the left leg foot and also injuries up to the knee i.e., Left leg degloving wound extending from the knee to ankle, extending along dorsum of left foot entire circumference of the limb, fracture of lateral medial malleous and fracture of calcanium. Immediately she was taken to the Government Hospital at Tumkur. Thereafter, she was shifted to Sanjay Gandhi Hospital at Bangalore, and took treatment from 10.02.2020 to 28.03.2020 as inpatient due the crush injury to her left leg foot and other parts of the body. Hence she was admitted in the hospital for more than 48 days. She was doing flower vending business and because of the accident, she has suffered from disability, and is unable to do the business. Therefore, she filed claim petition seeking compensation under various heads.
7. Pursuant to the notice, respondent/KSRTC appeared through the learned counsel and denied the rash and negligent driving of the bus and had taken a specific -6- NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 contention that the petitioner boarded the bus and immediately without any signal or intimation to either the conductor or the driver, she herself got down from the running bus. Therefore, contended that the accident occurred due to the negligence on the part of the claimant, therefore, the question of granting any award in favour of the petitioner does not arise and further denied the age, occupation, income and disability suffered by the claimant as false, and hence sought for dismissal of the claim petition.
8. Based upon the pleadings made by learned counsel for both the parties, the Tribunal framed the following issues :-
"1. Whether the petitioner proves that she has sustained grievous injuries in the Road Traffic Accident alleged to have occurred on 10.02.2020 at about 10.30 a.m. near new KSRTC Bus Stand, Tumkur Town, Tumkur due to the rash and negligent driving of the driver of the KSRTC Bus bearing registration number:KA-42-F-1941?
2. Whether the petitioner is entitled for compensation ? If so, to what is the quantum and from whom ?-7-
NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023
3. What Order or Award ?"
9. To substantiate the claim of the petitioner, petitioner was examined as PW.1 and got marked 32 documents and also examined PW.2 the Doctor and also got marked Exs.P33 to 36 and after closing the evidence of the petitioner, the driver of the bus was examined as RW.1, but no documents were marked and after hearing the arguments, the Tribunal answered issue No.1 in the affirmative. Issue No.2 is partly affirmative and finally allowed the petition in part by awarding compensation of Rs.4,42,276/- on various heads, which is as follows :-
a. Loss of future income : Rs.2,61,000/-
b. Pain and suffering : Rs. 40,000/-
c. Medical expenses : Rs. 32,776/-
d. Loss of Amenities : Rs. 50,000/-
e. Loss during laid down period : Rs. 43,500/-
f. Food, Nourishment,
Transportation and
attendant charges : Rs. 15,000/-
----------------------------
TOTAL : Rs.4,42,276/-
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NC: 2024:KHC:23832
MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
10. Being aggrieved with the findings regarding rash and negligence as well as the quantum of compensation, the KSRTC has filed the appeal in MFA No.5037/2023, whereas the claimant also filed the MFA CROB No.105/2023 seeking to enhance the compensation.
11. Sri D. VijayaKumar, learned counsel for the appellant/KSRTC seriously contended that the accident occurred purely due to the negligence of the claimant as she boarded the bus asking whether the bus was going towards Nelamangala, when the conductor said it was going towards Dabaspete road, the claimant herself suddenly came down the bus and due which, the running bus went on the foot of the claimant. Therefore, absolutely there is no negligence on the part of the driver of the bus in moving the bus, as the bus was already moved and the claimant boarded the moving bus and got down from the moving bus. Therefore, there is no negligence on the part of the 1st respondent. He contended that there was admission made by the claimant -9- NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 in cross examination that the accident would not have occurred, if she had got down from the bus after intimation to the Driver or conductor. Therefore, it is contended because of the admission, the Trial Court ought to have disbelieved the evidence of PW.1 regarding the negligence. Therefore, the liability shall not be fixed on the Driver of the KSRTC Bus. Even alternatively contended that there must be contributory negligence on the part of the driver as well as the claimant. Therefore, the quantum of compensation shall be reduced towards negligence on the part of the petitioner/claimant and also contended that the compensation awarded by the Tribunal on other heads is also exorbitant, as there is no document and prayed for allowing the appeal.
12. Per contra, the claimant's Advocate in the Cross Appeal No.105/2023 supported the findings given by the Tribunal in respect of issue No.1 stating that in the cross examination of PW.1, denied the suggestion that the accident occurred due to the negligence on the part of the
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 petitioner, though a stray admission was made by her in the further cross-examination, but RW1 has given evidence, who is the driver of the bus that the bus used to move only after closing the hydraulic door and he has admitted that the door was not closed, but he has moved the bus. It is also contended that the door can be opened by the passenger by a button, which is kept near the door and further it is admitted by RW.1 that the control of opening and closing the door is with the driver and not with the passenger or conductor. It is therefore, contended that the Tribunal by appreciating the evidence on record rightly held that the accident occurred due to the negligence on the part of the driver of the bus, but not due to the negligence of the claimant. Therefore, prayed for dismissing the appeal filed by the KSRTC.
13. Learned counsel for the claimant contended that the Tribunal awarded very meager compensation towards pain and agony, medical expenses, loss of income during laid up period, loss of future amenities, food and nourishment
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 etc., and also contended that the Doctor assessed the disability at 34% to the limb and Tribunal considered only 10%, which is below 1/3rd and not even 1/3rd and also contended even the Court can observe the leg of the claimant, who is present before the Court and as such, it is observed that there are lot of scars on the left leg upto the knee and she is a woman and she is unable to walk, sit squat and she is limping. Therefore, the compensation shall be suitably enhanced and hence prayed for allowing the MFA Crob filed by the claimant.
14. Per contra, the learned counsel for the KSRTC has contended that the amount of compensation awarded by the Tribunal is more than sufficient and therefore, there is no need to enhance the compensation and prayed for dismissing the MFA Crob.
15. Having heard the learned counsel for both the parties and on perusal of the records, the points that arise for my consideration are as to:-
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 "a. Whether the respondent proves that the accident occurred due to the negligence on the part of the claimant and not on the part of the driver of the KSRTC Bus ?
b. Whether the amount of compensation awarded by the Tribunal is sufficient in respect of the injuries sustained by her ? c. Whether it calls for enhancement or reduction, if so what award ?"
16. On perusal of the records, it indicates that occurrence of the accident in Tumkur Bus-Stand is not in dispute. The negligence is disputed by the respondent in the statement of objection as well as in the evidence by the examination of the driver of the bus as RW.1. On the other hand, the claimant was examined as PW.1. The learned counsel for the respondent brought to the notice of this Court in the deposition of the PW.1 in the cross examination, she has admitted that the accident could not have occurred, if she had to inform the conductor or the
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 driver of the bus and therefore, the admission clearly reveals that there is negligence on the part of the claimant. On the other hand, RW.1 has admitted that bus cannot be moved until the hydraulic door is closed and the operating system / control of the bus is with the driver. On considering the evidence of both PW1 as well as RW1, in the first instance PW1 has been suggested by the learned counsel for the respondent in the Tribunal, where she has denied that there was negligence on her part and the accident could not have occurred, if the claimant had got down the bus after intimation. In the first instance, she has denied the suggestion. However, on further cross examination she has admitted only that the accident could have been avoided if she has given intimation to the driver or conductor of the bus. There is no evidences i.e., one is denying the suggestion and one is admitting the suggestion. However, it is also pertinent to note in the cross examination of RW.1 that he has suggested that the bus shall have to be moved only after closing the hydraulic door of the bus and the control of opening and closing of
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 the door, is with the driver of the bus, which clearly reveals that the bus earlier started moving and after the signal given by the claimant, he has stopped the bus. Once the bus was stopped, the door could have been opened by the driver of the bus. She has boarded the bus and enquired with the Conductor whether the Bus is going to Nelamangala, then the conductor informed that the Bus is not going towards Nelamangala, but it is going towards Dabaspete route. Therefore, she got down from the bus, but at that time, the Driver moved the Bus even without closing the door. From the evidence on record, it is clear that the bus was moved by the Driver without closing the door and without allowing the passenger to get down from the bus. When the driver himself stopped the bus by looking to the claimant/passenger, therefore, until there was a confirmation that the passenger was inside the bus and after closing the door, he could have moved the bus, but without closing the door, he has moved the bus. Hence if the door is closed, the question of passenger getting down from the bus does not arise. Therefore, the
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 Tribunal on considering the evidence of both the parties rightly held that the accident in question occurred solely due to the negligence on the part of the driver of the bus, but not due to the negligence on the part of the claimant. Therefore, this Court is of the opinion, that there is no negligence on the part of the claimant, as the accident could have been avoided if she had intimated once the driver stopped the bus on the signal of the claimant and not on the signal of the conductor. Such being the case, the driver ought to have confirmed before moving the bus, whether the passenger got down from the bus and as to whether the door was closed or not. Therefore, without closing the door, moving the bus when the claimant was getting down without observing even through the side mirror of the bus and caused the accident due to which the accident occurred and therefore, point No.1 is answered in favour of the claimant and against the driver and held this accident is purely due to the negligence of the driver of the bus.
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023
17. As regards the quantum of compensation PW.1 examined PW.2, the Doctor, who has given evidence that the petitioner/claimant suffered grievous injuries to the left foot and the injuries were up to the left knee and there is lot of scars on the left leg. The injuries are not properly healed and this Court has observed the claimant, who was present before the Court, that the injuries were up to the knee of the left leg, very grievous in nature and not properly united and healed. Such being the case, the Tribunal has considered 10% disability, even though the Doctor assessed the disability at 34% to the left limb. Even if it is considered as 1/3rd it would come to 11.33%, but the Tribunal has considered as 10% disability. Therefore, I propose to consider 12% disability to the whole body in stead of 10% as considered by the Tribunal.
18. Learned counsel for the claimants has contended that there was loss of future prospects, but the claimant has not produced any document to show that she was suffering from total functional disability, which would not
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 permit her from doing any work. She is said to be doing flower vending business and for vending the flowers or tagging the flowers, there will be no order for her and therefore, it cannot be held that there would be any loss of future prospects due to the injury sustained by her. Therefore, loss of amenities can be properly compensated, but there is no question of loss of future prospects in this case.
19. The Tribunal has rightly taken the notional income of the petitioner at Rs.14,500/- p.m. by considering the chart of Legal Services Authority, for the accident that occurred in the year 2020. The income is to be considered at Rs.14,500/- x 12 and further based on the age group of 39 years, the multiplier adopted is '15' and not '14' as suggested by the learned counsel for the KSRTC. Thus the loss of income due to disability would be :-
Rs.14,500/- x 12 x 15 x 12 = Rs.3,13,200/-
20. As regards pain and suffering the Tribunal awarded Rs.40,000/-. It is pertinent to note that there was crush
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 injury to the left leg and was admitted as inpatient for 50 days. Such being the case Rs.40,000/- is on lower side, therefore, I propose to award Rs.50,000/- towards pain and suffering.
21. Towards medical expenses the Tribunal has awarded a sum of Rs.32,776/- which is based on the bills produced by the claimant. Hence there is no need for enhancement.
22. Towards loss of amenities the Tribunal has awarded a sum of Rs.50,000/-. Though this Court is required to confirm the same amount but on physical observation of the left leg from foot to the knee, it is observed that the claimant is suffering from loss of amenities and there is difficulty in sitting and squatting on the floor, there is total disfiguration and though it is stated by the learned counsel for the claimant that because of the injuries, her husband left the petitioner, there is no documentary proof in this regard and there is no witnesses examined to show that her husband left her or deserted her. However, on
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 observing her left leg physically in the Court, I am of the view, that there is total disfigurement and she has to suffer this loss of amenity throughout her life. Therefore, by looking to the discomfort of the leg and due to the disablement/disfigurement, she has to limp and therefore, throughout her life she has to suffer from loss of amenities. Therefore, towards loss of amenities, I propose to award compensation of a sum of Rs.1,00,000/- as against Rs.50,000/-.
23. Loss of income during laid up period is Rs.43,500/-. The Tribunal has awarded compensation for three months laid up period. The petitioner herself was admitted in the Hospital for almost two months as inpatient. Thereafter she was required to take rest for another three months, therefore, in all, laid up period would be five months, hence loss of income during laid period would come to Rs.14,500 x 5 = Rs.72,500/-
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023
24. Towards food, nourishment and attendant charges the Tribunal has awarded Rs.15,000/-, which is very meager. The claimant was admitted in the Sanjay Gandhi Hospital, at Bangalore, which is far away from Tumkur, she was inpatient for 48 days hence she would have incurred expenses towards food, nourishment and attendant charges, apart from conveyance charges, hence I propose to award Rs.50,000/- as against Rs.15,000/- awarded by the Tribunal.
25. Insofar as the future medical expenses is concerned the Doctor has not stated about any future medical expenses, though there is no evidence on record, looking to the leg of the petitioner, definitely she may require some future medical expenses if any pain arises while walking or sitting. Therefore, she has to go for further treatment if any required. Therefore, considering the facts and circumstances of the case, I propose to award Rs.25,000/- towards future medical expenses.
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 Accordingly, the petitioner is entitled for compensation under various heads as follows :-
a. Towards pain and agony Rs. 50,000/- b. Towards medical expenses Rs. 32,776/-
c. Loss of amenities Rs.1,00,000/-
d. Towards Food, Nourishment
and Attendant charges Rs. 50,000/-
e. Loss of income during laid up
period Rs. 72,500/-
f. Loss of future income
due to disability Rs.3,12,200/-
g. Future medical expenses Rs. 25,000/-
____________
TOTAL Rs.6,43,476/-
____________
26. Accordingly, I pass the following :-
ORDER a. The MFA No.5037/2023 filed by the KSRTC is hereby allowed in part.
b. The MFA Crob No.105/2023 is hereby allowed in part.
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NC: 2024:KHC:23832 MFA No. 5037 of 2023 C/W MFA.CROB No. 105 of 2023 c. The appellant/claimant is entitled for enhanced compensation of Rs.6,43,476/- together with interest at 6% p.a instead of 9% p.a. awarded by the Tribunal, interest excluding the future medical expenses.
d. Respondent is directed to deposit the amount within 60 days from the date of receipt of a copy of this order.
e. The amount in deposit in MFA is directed to be transmitted to the concerned Tribunal. f. Out of the compensation awarded 50% of the amount shall be kept in fixed deposit, and the remaining 50% be released in favour of the claimant.
Sd/-
JUDGE NG List No.: 1 Sl No.: 28