The Divisional Controller vs Ainampudi Brahmanandam And Anr
2021 Latest Caselaw 5253 Kant

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        IN THE HIGH COURT OF KARNATAKA

               KALABURAGI BENCH


  DATED THIS THE 02ND DAY OF DECEMBER, 2021

                     BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

           MFA No.200323/2020 (MV)
                     C/W
           MFA CROB NO.200032/2021

MFA No.200323/2020


BETWEEN:

THE DIVISIONAL CONTROLLER
NEKRTC., RAICHUR DIVISION RAICHUR
NOW REPRESENTED THROUGH ITS CHIEF
LAW OFFICER, NEKRTC, CENTRAL OFFICES
SARIGE SADANA
KALABURAGI 585102.
                                       ... APPELLANT

(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)

AND:

1 . AINAMPUDI BRAHMANANDAM
   S/O KRISHNARAO AGE: 31 YEARS
   OCC: WORKING IN SRC LABORATORIES PVT. LTD.
   AS EXECUTIVE IN WAREHOUSE
   DEPT. R/O GOWRIPATNAM (P.O)
   NOW IDSMT LAYOIUT
   DIST RAICHUR-584101.
                         2




2 . SRI MALLAPPA S/O TEJAPPA TALAVAR
   AGE: MAJOR OCC: DRIVER OF NEKRTC
   BUS, BEARING NOI.KA-36/F-1298
   R/.O INGALESHWAR TQ BASAVANA BAGEWADI
   DIST BIJAPUR-586203.
                                   ... RESPONDENTS

(BY SMT.PATIL SHANTABAI SUBHASH FOR R1
NOTICE TO R2 IS DISPENSED WITH VIDE ORDER
DATED 01.07.2021.)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS IN MVC
NO.89/2018, DATED 13.09.2019 BY THE II ADDL.
DISTRICT & SESSIONS JUDGE & MACT AT RAICHUR AND
ALLOW THIS APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMNET AND AWARD IN MVC NO.89/2018 DATED
13.09.2019 BY THE II ADDL. DISTRICT & SESSIONS
JUDGE & MACT., AT RAICHUR.


MFA CROB NO.200032/2021
BETWEEN:

ANINAMPUDI BRAHMANANDAM
S/O KRISHNARAO, AGE.32 YEARS,
OCC.WORKING IN SRC LABORATORIES PVT. LTD.,
AS EXECUTIVE IN WAREHOUSE DEPT.,
R/O GOWRISPATNAM (P.O)
NOW IDSMT LAYOUT, RAICHUR,
DISTRICT:RAICHUR.                CROSS OBJECTOR

(BY SMT. PATIL SHANTABAI SUBHASH, ADVOCATE)



AND:
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1 . MALLAPPA S/O TEJAPPA TALAVAR,
   AGE.MAJOR, OCC.DRIVER OF NEKSRTC BUS
   BRG. ITS REGN. NO.KA-36/F-1298,
   R/O INGALESHWAR,
   TQ.BASAVANA BAGEWADI,
   DIST.BIJAPUR-586203


2 . THE DIVISIONAL CONTROLLER
   NEKSRTC, RAICHUR DIVISION, RAICHUR,
   (SELF INSURER OF NEKSRTC
   BUS BRG. ITS REGN. KA-36/F-1298)
   RAICHUR-584101.
                                  ..... RESPONDENTS

(BY SMT. SANGEETA BHADRASHETTY FOR R2
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
DATED 07.09.2021)


     THIS    MISCELLANEOUS        FIRST   APPEAL   IS   FILED

UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,

PRAYING TO ALLOW THE APPEAL BY MODIFYING THE

JUDGMENT AND AWARD DATED 13.09.2019, PASSED BY

THE II ADDL. DISTRICT AND SESSIONS JUDGE (MACT)

RAICHUR,     IN    MVC    NO.89/2018      AND   PLEASED   TO

ENHANCE THE COMPENSATION.

     THIS APPEAL AND M.F.A.CROB COMING ON FOR

ORDERS      THIS   DAY,    THE    COURT     DELIVERED     THE

FOLLOWING:-
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                           JUDGMENT

MFA.No.200323/2020 is filed by the NEKSRTC and

MFA.Crob.No.200032/2021 is filed by the claimant against

the judgment and order dated 13.09.2019 passed in

MVC.No.89/2018 by the II Additional District and Sessions

Judge and MACT at Raichur (henceforth referred as

'Tribunal').

02. The brief facts leading upto filing of the appeal

and MFA.Crob are that on 22.11.2017 the claimant

boarded a NEKRTC Bus bearing Reg.No.KA-36-F-1298

(henceforth referred as 'offending vehicle') at about 08.45

a.m. to go to Chiksugur. When the bus reached near

Tagore College, at that time the respondent No.1 being the

driver of the bus drove the bus in a rash and negligent

manner and suddenly applied the brake without observing

if the doors of the bus closed or not, due to which the

claimant fell down from the bus and the wheel of the bus

ran-over his legs. Due to this impact the claimant

sustained grievous and multiple injuries. Thereafter, he

shifted to RIMS Hospital Raichur. After that he was shifted

to Yashoda Hospital, Hyderabad, wherein he was treated

as an inpatient and undergone major surgeries and

incurred `.15,00,000/- towards his treatment and also

spent at `.3,00,000/- towards conveyance, shifting,

boarding, attendant and diet and etc.,

03. Thereupon the claimant has filed a claim

petition under Section 166 of the M. V. Act seeking

compensation of `.61,50,000/- on the premise that he

used to earn `.30,000/- per month by working as an

Executive in Warehouse department in SRC Laboratories

Private Limited Raichur and maintaining his family. It is

stated that the injuries sustained by him, resulted in

permanent disability effecting his earning capacity. That

the accident in question had occurred on account of

negligence on the part of the driver of the offending

vehicle and respondent No.2 being the internal insurer of

the offending vehicle. Therefore, respondents No.1 and 2

are jointly and severally liable to pay the compensation to

the claimant.

04. Upon service of notice, the respondent No.1

remained absent and placed ex-parte. The respondent

No.2 appeared through its advocate and filed written

statement denying that the occurrence of accident due to

the rash and negligent driving of offending bus by

respondent No.1. On the other hand the accident had

occurred due to negligence on the part of the claimant.

That the claim made by the claimant is exorbitant and

excessive. Hence, sought for dismissal of the claim

petition.

05. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and three other

witnesses examined as PWs.2 to 4 and the claimant

marked nineteen documents as Exs.P.1 to Ex.P.19. On

behalf of the respondents three witnesses examined as

RWs.1 to RW.3 and marked seven documents as Exs.R.1

to Ex.R.7.

06. The Tribunal based on the pleadings and

evidence on record held that the accident in question

occurred due to rash and negligent driving of the offending

vehicle by its driver causing injuries to the claimant.

Consequently, the Tribunal held that the claimant is

entitled for a total compensation of `.10,33,700/- along

with interest at the rate of 8% p.a. from the date of

petition till payment under the following heads:-

  Sl.                  Heads                 Amount
  No.
01.       Pain and suffering             `.00,60,000/-
02.       Medical expenses               `.06,43,684/-
03.       Food,    Nourishment      and `.00,30,000/-
          conveyance
04.       Attendant Charges              `.00,15,000/-

05. Loss of income during laid off `.00,24,000/-

period

06. Loss of future earnings `.02,16,000/-

07.       Loss of amenities              `.00,15,000/-





08.      Future medical expenses              `.00,30,000/-
         Total                                `.10,33,684/-
         Rounded off                          `.10,33,700/-

07. Being aggrieved by the aforesaid judgment and

award the corporation has filed MFA.No.200323/2020 to

set-aside the judgment and order passed by the Tribunal

and the claimant has filed MFA.Crob.No.200032/2021

seeking enhancement of compensation.

08. The learned counsel for the appellant -

corporation reiterating the grounds urged in the appeal

memorandum submitted that the Tribunal erred in not

appreciating the fact that the accident had occurred on

account of negligence on the part of the claimant who was

attempting to board the moving bus. She further submits

that the evidence of RW.2 - conductor of the bus reveals

that the claimant himself was negligent who was

attempting to board in the moving bus and having lost

control and fell on the road and sustained injuries. She

therefore submits that there is no negligence on the part

of the driver of the bus. She further submitted that though

it is contended on behalf of the claimant that he was

earning `.30,000/- per month. The Ex.P.17 - appointment

letter, is false and fabricated document, it was produced

only to claim compensation on the false premise. She

further submits that there is no material evidence

produced on record by the claimant to show that he lost

his earning capacity on account of injuries suffered in the

accident. She further submits that grant of compensation

is without any basis and the same is exorbitant. Hence,

seeks for allowing the appeal.

09. The learned counsel for the cross-objector -

claimant reiterating the grounds urged in the appeal

memorandum vehemently submitted that the Tribunal had

erred in not appreciating the fact that the claimant was

working as Executive in Warehouse department in SRC

Laboratories Pvt. Ltd., Raichur. Despite having produced

the Ex.P.17 and having examined the author of the said

document, the Tribunal has erred in not taking into

consideration the said document. She further submitted

that the Doctor who treated the claimant had assessed the

disability at 45%, but the Tribunal has assessed the same

to the extent of 15% which according to her is

unsustainable. The grant of compensation according to her

is on lower side. Hence, seeks for enhancement of

compensation.

10. Heard the learned counsel for the parties and

perused the records.

11. The points that arise for consideration are:

I. Whether the appellant - corporation has made out a case for interference with the judgment and order?

II. Whether the appellant - claimant has made out a case for enhancement in the compensation as awarded by the Tribunal?

12. The accident in question occurred on

22.11.2017 involving the bus belonging to corporation is

not in dispute, in which the claimant has sustained

grievous injuries. As per Ex.P.3 - the wound certificate the

claimant had suffered degloving injury over back of left

knee 13 x 7 x 2 cm. Abrasion over left knee 2 x 2 cm.

Crush injury of right foot and active bleeding was present.

Exs.P.6 to 8 are the discharge summaries show that the

claimant had taken the treatment. The disability certificate

at Ex.P.14 reveals that the assessment of the disability is

made by the doctor - PW.2 to the extent of 45%. Thus, the

above said documents coupled with Exs.P.1 to 5 and would

establish the occurrence of accident. The Tribunal at Para

No.11 of the impugned judgment dealt with the matter in

respect of actionable negligence. Referring to the evidence

of RW.1 and also the evidence of RW.2, the Tribunal had

arrived to the conclusion that the accident occurred due to

negligence on the part of the driver of the bus.

13. It is specific case of the claimant that he had

boarded the bus and was travelling on foot board, at that

time the driver of the bus without ensuring that the doors

of the bus were closed or not, suddenly applied the brake,

resulting in he loosing the balance and felling on the road

and wheel of the bus running over his leg.

14. Denying these assertions, the driver of the bus

was examined as RW.1, who in his affidavit has stated that

on the date of accident the bus was having full of

passengers and also students, at that time the claimant

without his knowledge or of the conductor, while the bus

was on the move, suddenly tried to board the bus, thereby

he lost control and balance and fell down and sustained

injuries. He further stated that there was no Bus Stop

where the claimant abruptly tried to board the Bus

knowing fully well that the Bus was full of passengers and

students. Hence, there is no negligence on the part of the

driver of the bus.

15. Similarly, the RW.2 - bus conductor deposed in

his affidavit at Para No.3 and 4 which reads as under:-

"3. Immediately the persons who were near the Door shouted hence I signaled to stop the bus as I was verifying the students bus pass

and also issuing the tickets to the passengers and then found that, the claimant due to his own negligence fell down and sustained injuries and thereby called the 108 vehicle and shifted him to the Hospital for treatment. In fact, there was no Bus stop where the claimant abruptly tried to board the bus knowing fully well that, the bus was having full of passengers and students, hence there is no negligence on the part our Bus Driver i.e., respondent No.1 as the said accident was not due to his rash and negligent act. In this regard I have given statement to the police of Traffic P.S. Raichur, but they have not recorded and falsely registered the case against the respondent No.1 only to help the claimant.

4. The Road i.e., Ambedkar - Basaveshwara Circle was under repair by closing one side road as another side was under repair and the place of accident was narrow, hence no vehicle can move with great speed hence our said Bus was moving very slowly, moreover claimant boarded the Bus negligently and intend stand

on footrest, thereby he lost balance and fell down only because of his negligence."

16. It is interesting to note that even according to

RW.2, he was busy, checking the passengers and issuing

the tickets, and without his knowledge the claimant had

attempted to board into the moving bus and fell on the

road. If RW.2 - conductor was busy issuing tickets to the

passengers, there was no possibility of him seeing if the

claimant was attempting to board the moving bus. That

being the fact, the evidence of RW.2 cannot be

countenance.

17. In the cross-examination of PW.1 at Paras

No.3 and 4 to a specific suggestion of he attempting to

board in the moving bus, the same is denied by him. The

corporation has not led any independent evidence in

justification of defence their set-up to the effect that the

claimant himself was responsible for the accident.

Therefore, finding arrived at by the Tribunal at Para No 11

does not warrant any interference. It is necessary to note

that FIR and charge sheet were filed against the driver of

the bus, who is respondent No.1. The same remained

unchallenged. In the circumstances, the finding of the

Tribunal and the conclusion arrived at thereof is just and

proper. Hence, the first point raised is answered

accordingly.

18. Adverting to the quantum of compensation

awarded by the Tribunal though it is claimed on behalf of

the claimant that he was earning Rs.40,000/- per month

being an Executive in Warehouse department in SRC

Laboratories Pvt. Ltd., Raichur and Ex.P17-appointment

letter and Ex.P18-salary certificate have been produced

and author of the said documents, PW.3-Danda Srinivasulu

Reddy has been examined, the Tribunal has declined to

accept the same, rightly so as the said letter has come into

existence apparently just two months prior to the date of

the accident. Except the said documents no other

document has been produced if the claimant was receiving

the salary of Rs.40,000/- per month, nothing prevented

him from producing bank statement or salary slip having

been received. Further there is no evidence placed by the

claimant with regard to nature of work being carried on or

with regard to the qualification. Except saying that he was

an Executive nothing is furnished. In the circumstances no

fault can be found in the finding of the Tribunal not

accepting the material evidence produced in this regard by

the claimant. However, the Tribunal has assessed notional

income of the injured at Rs.8,000/- per month. This Court

in the absence of material evidence with regard to the

income of the victim of the road traffic accident taking into

consideration the chart prepared by the Karnataka State

Legal Service Authority, in terms of which, notional income

of the victim of the road traffic accident for the year 2017

is assessed at Rs.10,250/- per month. In the instant case,

accident having taken place on 22/11/2017, the notional

income of the claimant has to be assessed accordingly.

19. Further in the disability certificate issued by

PW.2/Dr.Ram Babu Nuvvulla, who in his evidence has

stated that the claimant has suffered disability at 45%, the

Tribunal has taken disability at 15% to the whole body. In

the instant case, the said assessment of the Tribunal is

held just and proper. It is particularly in view of the fact

that the claimant has not adduced any evidence with

regard to his loss of income or loss of job. Therefore, the

said assessment made by the Tribunal is held proper. The

claimant was aged about 40 years as on the date of the

accident and multiplier applicable to his age group is '15'.

Thus, the claimant is entitled to a compensation of

Rs.2,76,750/- (Rs.10,250x12x15x15%) towards loss of

future income.

20. The Tribunal has awarded Rs.60,000/- under

the head of pain and suffering. Considering the nature of

injuries and nature of treatment undergone an additional

sum of Rs.20,000/- needs to be awarded under the said

head making it Rs.80,000/- instead of Rs.60,000/-.

21. The Tribunal has awarded Rs.15,000/- towards

attendant charges, the same is enhanced by another sum

of Rs.15,000/- making it Rs.30,000/-.

22. As notional income of the injured assessed at

Rs.10,250/-, considering the nature of injuries suffered,

the claimant must have been advised to undergo

treatment for a period of three months. Therefore, the

same is awarded at Rs.30,750/- (Rs.10,250x3) instead of

Rs.24,000/-.

23. The photographs produced at Ex.P16 reveals

that nature of injuries suffered by the claimant he having

lost of toes could definitely cause discomfort. Therefore,

loss of amenities granted at Rs.15,000/- is enhanced by

additional sum of Rs.50,000/-, making it Rs.65,000/-. The

compensation granted under other heads are maintained.

Thus, the claimant is entitled to a enhanced compensation

as follows:

Heads                   By Tribunal      By this Court
Pain and suffering      Rs.60,000/-      Rs.80,000/-
Medical expenses        Rs.6,43,684/-    Rs.6,43,684/-
Food,                   Rs.30,000/-      Rs.30,000/-
nourishment and
conveyance
Attendant charges       Rs.15,000/-      Rs.30,000/-
Loss of income          Rs.24,000/-      Rs.30,750/-
during    laid    off
period
Loss    of    future    Rs.2,16,000/-    Rs.2,76,750/-
earnings
Loss of amenities       Rs.15,000/-      Rs.65,000/-
Future      Medical     Rs.30,000/-      Rs.30,000/-
bills
Total                   Rs.10,33,684/-   Rs.11,86,184/-
Rounded off             Rs.10,33,700/-

24. On the enhanced compensation, the claimant

is entitled for interest at 8% per annum from the date of

claimant till realization. Hence, the above point is

answered accordingly and following order is passed:

ORDER

a. The MFA.Crob.200032/2021 filed by

the claimant/appellant is allowed in part and

MFA.200323/2020 filed by the Corporation is

dismissed. The judgment and order of the

Tribunal in MVC No.89/2018 is modified.

b. The claimant/appellant is entitled

for enhanced compensation of Rs.11,86,184/-

instead Rs.10,33,700/- awarded by the

Tribunal together with interest at 8% per

annum from the date of petition till its

realization.

c. The Corporation is directed to pay

the compensation within eight weeks from the

date of receipt of a certified copy of this

judgment.

d. The amount, if any, deposited

before this Court is ordered to be transmitted

to the Tribunal.

Sd/-

JUDGE

KJJ/MKM