Karnataka High Court
Sri Jayanna vs The Divisional Controller on 28 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 6 OF 2021 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1715 OF 2022
IN MFA NO. 6/2021
BETWEEN:
THE DIVISIONAL CONTROLLER,
KSRTC, DEPOT,
CHIKKAMAGALURU,
REPRESENTED BY ITS
CHIEF LAW OFFICER,
BANGALORE.
...APPELLANT
(BY SRI. LAKSHMEESH RAO, ADVOCATE)
Digitally signed by AND:
VEDAVATHI A K
Location: High
Court of Karnataka 1. SRI. JAYANNA
S/O MANJAIAH,
AGED ABOUT 44 YEARS,
AGRICULTURIST & BUSINESS,
R/O NO.341, KOPPALU,
MAHESHWARI NAGARA,
SAKLESHPURA TOWN,
HASSAN DISTRICT.
2. SRI. GANGADHARA
S/O. LATE. RACHAIAH,
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MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
AGED ABOUT 41 YEARS,
DRIVER OF THE KSRTC BUS,
BEARING REGISTRATION NO. KA-18-F-474,
WORKING AT MUDIGERE DEPOT,
CHIKKAMAGALURU DISTRCT,
R/O. MINKERA VILLAGE,
HUMNADABADH TALUK,
BIDAR DISTRICT.
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1;
R2 SERVED, BUT UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 17.02.2020 PASSED IN MVC NO.49/2019 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MUDIGERE,
AWARDING COMPENSATION OF RS.10,41,434/- WITH
INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION
TILL REALIZATION.
IN MFA NO. 1715/2022
BETWEEN:
SRI. JAYANNA
S/O MANJAIAH,
AGED ABOUT 45 YEARS,
AGRICULTURIST & BUSINESS,
R/AT NO.341, KOPPALU,
MAHESHWARI NAGARA,
SAKLESHPURA TOWN,
HASSAN DISTRICT - 573 201.
...APPELLANT
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
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MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
AND:
1. THE DIVISIONAL CONTROLLER,
KSRTC, DEPOT,
CHIKKAMAGALURU - 577 101.
2. SRI. GANGADHARA
S/O. LATE RACHAIAH,
AGED ABOUT 42 YEARS,
BEARING REGISTRATION NO.KA-18-F-474,
WORKING AT MUDIGERE DEPOT,
CHIKKAMAGALURU DISTRCT,
R/AT MINKERA VILLAGE,
HUMNADABADH TALUK,
BIDAR DISTRICT - 585 330.
...RESPONDENTS
(BY SRI. G.LAKSHMEESH RAO, ADVOCATE FOR R1;
VIDE ORDER DATED:28/01/2024, NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 17.02.2020 PASSED IN MVC NO.49/2019 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MUDIGERE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
JUDGMENT
MFA No.6/2021 is filed by the KSRTC, challenging the liability and reduction of compensation awarded by the Senior Civil Judge and MACT, Mudigere, in MVC No.49/2019 dated 17.02.2020, whereas MFA No.1715/2022 is filed by the claimant for enhancement of compensation in the same case.
2. Heard the arguments of both counsel appearing for the parties.
3. The appellant in MFA No.1715/2022 was the claimant/ petitioner before the Tribunal. Appellant in MFA No.6/2021-KSRTC was the respondent No.1 before the Tribunal. The status of the parties before the Tribunal is retained for the sake of convenience.
4. The case of the petitioner is that the petitioner filed a claim petition under Section 166 of the Motor Vehicles Act for claiming compensation of Rs.50,00,000/- for the injuries sustained by him in the road traffic accident dated 29.06.2018. It is pleaded by him that on 29.06.2018 at 11.30 p.m., when he was proceeding in a Maruthi car bearing Registration No.KA- 17-N-9697 from Hosapura towards Mudigere in a moderate -5- NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 speed by observing all the traffic rules and regulation, at that time, a KRTC bus bearing No.KA-18-F-474 driven by its driver in a rash and negligent manner came from opposite direction and dashed against the Maruthi car, due to which, the car was completely damaged. The claimant sustained grievous injuries on the leg, face and other parts of the body. He was taken to M.G.M.Hospital, Mudigere and later, he was shifted to Father Muller's Hospital, Mangalore. Again, he took treatment at A.G.Hospital, Mangalore. Admittedly, he was in the hospital for more than a month and due to the injuries, he is suffering from disability. He is an Agriculturist as well as Businessman earning more than Rs.20,000/- p.m. He has incurred loss of income, as he is unable to work due to the injuries suffered by him in the accident. Hence, prayed for enhancement of compensation.
5. In pursuance of issuance of notice, the Respondent No.1/driver as well as the KSRTC entered appearance and filed statement of objection, denying the rash and negligent driving of the KSRTC bus by its driver and contended that this accident has occurred due to the rash and negligent driving of the driver of Maruthi car himself, as the bus was on the extreme left side -6- NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 of the road. Further, the age, occupation, income and disability caused to the claimant are admitted by the KSRTC. Based upon the pleading, the Tribunal has framed the following issues:
1. Whether the petitioner proves that, on 29.06.2018 at about 11.30 a.m. the petitioner was proceeding in a Maruthi Car bearing Regn. No.KA-
17/N-9697 from Hosapura to Mudigere in front of Somegowda's Estate, Jenubailu Village at that time respondent No.1 being the driver of KSRTC bus bearing Regr.No.ΚΑ-18/F- 474 drove the bus in a rash and negligent manner and dashed against the Maruthi car in which petitioner was proceeding and due to the said accident the petitioner sustained injuries?
2. Whether the petitioner is entitled for compensation as claimed? If so, for what amount?
3. From whom petitioner is entitled to claim compensation?
4. What order or award?
6. To substantiate the case, the claimant examined himself as P.W.1 and also examined Dr.Niyath as P.W.2 and got marked 279 documents as per Exs.P1 to P279. The 1st respondent-driver is examined as R.W.1 and got marked Exs.D1 to D3. After hearing arguments, the Tribunal answered -7- NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 Issue No.1 in the affirmative. Issue Nos.2 and 3 partly in the affirmative and awarded compensation of Rs.10,41,434/- on the following heads as under:
Loss of earning capacity Rs.2,23,944/-
Pain and sufferings Rs.1,00,000/-
Medical expenses Rs.4,89,490/-
conveyance/travelling expenses Rs.40,000/-
Attendant's charges and nutritious Rs.30,000/-
food.
Loss of income during treatment Rs.48,000/-
period and rest period
Future Medical expenses Rs.60,000/-
Loss of amenities Rs.50,000/-
TOTAL Rs.10,41,434/-
7. Being aggrieved by the fastening of the liability on the KSRTC and on the quantum of compensation, the Divisional Controller of KSRTC filed appeal in MFA No.6/2021 whereas the claimant filed appeal in MFA No.1715/2022 for enhancement of compensation.
8. Counsel for the respondent/KSRTC has seriously contended that the Tribunal committed an error in holding that the negligence was on the part of the driver of the bus even though R.W.1 examined himself and got marked three documents vide Inspection Report-Exs.R1 and statement of one -8- NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 Girish-Ex.R2 and statement made by the Divisional Commissioner-Ex.R3 and examined R.W.1-Gangadhara to prove that this accident has occurred due to the negligence on the part of the claimant, but not KSRTC driver and such being the case, even on perusal of the photograph produced along with I.A under Order 41 Rule 27 of CPC, the bus was standing on the extreme left side of the road which goes to suggest that the accident is due to the rashness and negligence on the part of the driver of the Maruthi car. Therefore, the Tribunal fastening the liability on the KSRTC is not correct and alternatively, fixed the contributory negligence on the part of both the driver and the claimant. Hence, prayed for allowing the appeal.
9. Alternatively, the learned counsel for the appellant also contended that the Tribunal committed an error in taking 25% of the income as future prospects as there are no documents produced to prove the income and there is no physical functional disability for doing work and total disability itself is considered as 13.33%. Therefore, taking 25% of income towards future prospects is correct and award of compensation under other heads is also exorbitant. -9-
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10. Per contra, learned counsel for the claimant has seriously objected the appeal and also supported the Judgment of the Tribunal in respect of finding on the liability fixed on the KSRTC, contending that as per the Police records, the bus came on the extreme right side and due to the negligence on the part of the driver of the KSRTC bus, the accident has occurred. The Police have filed charge sheet against the driver of the bus and the Divisional Controller who submitted the report is also not examined except the driver of the bus. Therefore, prays that these documents should not be looked into. Hence, prayed for confirming the finding on the Issue No.1. It is further contended in respect of claimant's appeal, that the Tribunal considered the income of the claimant is only Rs.8,000/- p.m., even though in the Lok Adalath, for the accident for the year 2018, notional income of Rs.12,500/- is fixed by the Legal Services Authority in the absence of any document regarding salary. As regards pain and suffering and loss of income during laid up period, they are also on the lower side and requires to be enhanced. Hence, prays for dismissal of the appeal filed by the KSRTC.
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11. Learned counsel for the respondent/KSRTC has also filed I.A under Order 41 Rule 27 of CPC along with two photographs contending that these photographs are not produced before the Tribunal. These photographs clearly show that the bus was proceeding on the extreme right side of the road and the accident has occurred on the right side, where front side of both the vehicles are damaged. It is submitted that the accident has occurred due to the fault of the claimant.
12. Per contra, learned counsel for respondent objected the I.A and contended that the bus was parked on the side of the road for other vehicles to move on the road. Therefore, that cannot be considered as no offence committed by him. As per the photographs produced and also as per the Police records, the accident has occurred due to the negligence on the part of the driver of the KSRTC bus.
13. Having heard the arguments, perused the records, the point that arises for my consideration are,
i) Whether the Tribunal justified in holding that the accident in question dated 29.06.2018 at 11.30 p.m., occurred due to the negligence of the KSRTC bus and due to which, the claimant sustained injuries?
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ii) Whether the appellant made out sufficient cause for adducing additional evidence under Order 41 Rule 27 of CPC?
iii) Whether the claimant is entitled for enhancement of compensation as the compensation awarded is meager and requires enhancement as claimed by the claimant? If so, what amount?
iv) Whether the amount of compensation awarded by the Tribunal is excessive and liability to be reduced?
14. On perusal of the records, the facts of the case are that the bus came from Mudigere to Hosapura, whereas the Maruthi car driven by the claimant was going towards Mudigere from Hosapura. The accident was occurred at 11.30 p.m. As per the contention of the claimant, the car was being driven on the left side of the road, whereas the bus came in the opposite direction on the right side and dashed to the vehicle. As per the IMV report, the front side of the bus on the right side was damaged. The front end lower half portion of the right side of the bus was damaged. Whereas, the car also suffered damages on the right side portion which is broken into pieces and half portion of the body and doors were smashed and right head light indicator and front screen are damaged. The damage caused to the Maruthi car was much more than the
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 damage caused to the bus. As per the Police report, Ex.P4-spot mahazar produced by the claimant, the sketch was prepared by the Police, which reveals that the bus was coming from Mudigere to Belur. Whereas the claimant was moving from Hosapura towards Mudigere. The accident spot has been inspected and bus was on less than the middle of the road towards right side which clearly suggests that the bus came from opposite direction instead of going on the left side has come on the right side. Whereas the car was going from Hosapura to Mudigere on the left side of the road. It clearly indicates that the accident has occurred due to the rash and negligent driving of the KSRTC driver. Though the Respondent No.1 examined himself and produced Exs.R1 to R3, where the report was prepared by the Divisional Controller by examining the driver of the bus stating that this accident occurred due to the negligence of the driver of the car. But there are no independent witnesses examined by the Divisional Controller, i.e., any passenger from the bus before filing of the report to show whether there was no negligence on the part of the driver of the KSRTC bus. Mere omission on the part of the Divisional Controller to examine independent witness or Police records are
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 not enough to prove or disprove the case of the claimant. Therefore, the Tribunal rightly held on the basis of Ex.R1, ..police records, charge-sheet and IMV report and panchanama that the accident has occurred due to the rash and negligent driving of the KSRTC bus. Therefore, there is no need to interfere with the finding recorded by the Tribunal.
15. As regards to the quantum of compensation, both the respondents as well as the claimant have filed this appeal disputing the quantum of compensation awarded by the tribunal. Looking to the evidence of the petitioner, he has stated that he is an agriculturist and a business man and earning Rs.20,000/- per month. But no documents were produced to prove the income of the petitioner. Such being the case, there is no other option for the court to consider the notional income. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.12,500/- p.m. to be considered for the accidents occurred during 2018. Therefore, I propose to take Rs.12,500 as notional income of the petitioner whereas, the tribunal taken Rs. 8,000/- per month, which is very meagre. Therefore, the
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 same is required to be enhanced. However, the learned counsel for the respondent has contended that there is no loss of future prospectus in order to take 25% of the income, as considered by the tribunal. Also contended when the disability itself is at 13% to the whole body, question of taking 25% as future prospectus is exorbitant and cannot be considered. Whereas, respondent counsel contended, due to disability, he lost the earning capacity and he cannot work as he was working earlier. He is unable to do agricultural work in the field. Therefore, it is contended that definitely there is a loss of future prospectus and the same to be considered at 25%.
16. The tribunal while considering 25% of the future prospectus, relied upon the judgment of the Hon'ble Supreme Court, wherein there was disability of 85% to the lower limb, whereas the tribunal considered only 30% to the whole body and High Court determined the disability to 65%, wherein there was amputation of the leg and the amputated leg was planted. But here in this case, no such amputation has taken place. It is only the disability of 40% to the right limb. Therefore, 1/3rd of the disability is rightly taken by the tribunal. However the
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 future prospectus, there is no proper evidence regarding functional disability found. Considering the same, there is no question of future loss of prospectus for the claimant and the very injury sustained by him to the limb was 40% assessed by the doctor and 1/3rd is 13.33%. Such being the case, there is no question of granting any loss of future prospectus. Therefore, in this regard Rs.12000/- calculated by the tribunal is liable to be set aside. However, 40% of disability shown earlier, the injuries on consideration there was fracture of humerus left, fracture of shaft right femur, proximal right tibia etc., As per Ex.P8, the discharge summary issued by the hospital, which reveals he has undergone surgery for Fracture Humerus Left (Distal 1/3rd), Fracture Shaft of femur, fracture proximal tibia and there were two operations done in two different days and steel plates were fixed and definitely there will be disability of more than 13% to the whole body. Therefore, I propose to consider instead of 13.33% to consider 15% of disability towards the whole body.
17. As regards to the pain and suffering, tribunal has awarded Rs.1 lakh and petitioner was admitted to the hospital for more than one month and there was three to four
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 fractured, injuries. Therefore, there is no need to either reduce or enhance.
18. As regards to medical expenses awarded by the tribunal Rs.4,89,490/- has been paid, based upon the medical records and it does not require any interference.
19. The conveyance charges, attendant charges, nutritious food etc., awarded by the tribunal in total was Rs.70,000/- (Rs.40,000 + Rs.30,000) granted by the tribunal and it is just and appropriate.
20. As regards to laid-up charges, six months calculated by tribunal and if Rs.12,500/- p.m. is considered for six months, the same will be Rs.12,500/- x 6 = Rs.75,000/- (instead of Rs.48,000/-).
21. Future medical expenses, Rs.60,000/- is awarded by the tribunal and the same does not require interference.
22. Loss of amenities is awarded to an extent of Rs.50,000/- and the same is just and proper.
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23. As regards to the loss of income due to disability, if the income of the injured is considered as Rs.12,500/- multiplied into 12 months and further multiplied to 14 multiplier x 15% of disability is considered which is as under;
Rs.12,500/- x 12 x 14 x 15% = Rs.3,15,000/- is granted towards loss of future earning capacity. (instead of Rs.2,23,944/-).
24. The components awarded by this court are as below, Particulars Amount in Rs.
Loss of earning capacity Rs.3,15,000/-
Pain and sufferings Rs.1,00,000/-
Medical expenses Rs.4,89,490/-
conveyance/travelling expenses Rs.40,000/-
Attendant's charges and nutritious Rs.30,000/-
food.
Loss of income during treatment Rs.75000/-
period and rest period
Future Medical expenses Rs.60,000/-
Loss of amenities Rs.50,000/-
TOTAL Rs. 11,59,490/-
ROUNDED OFF TO Rs. 11,60,000/-
25. Accordingly, I pass the following:
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NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
ORDER
i. Both appeals are allowed in part.
ii. The judgment of the tribunal, by the Senior Civil Judge
and MACT, Mudigere, in MVC No.49/2019 dated
17.02.2020, is hereby modified.
iii. The claimant are entitled to a total compensation for a sum of Rs.11,60,000/- with interest at the interest rate of 6% p.a., instead of Rs.10,41,434/- granted by the tribunal.
iv. The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum, excluding the future medical expenses, within a period of two months from the date of receipt of a copy of this order.
v. The amount in deposit made by the respondent/KSRTC in MFA No.6/2021 shall be ordered to be transmitted to the tribunal.
vi. The enhanced amount to be released to the claimant.
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NC: 2024:KHC:24122 MFA No. 6 of 2021 C/W MFA No. 1715 of 2022 vii. The Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; and viii. Draw award accordingly.
Sd/-
JUDGE BNV/AKV CT:SK/List No.: 1 Sl No.: 55