Sawai Singh vs The Managing Director
2021 Latest Caselaw 5739 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER 2021

                         BEFORE

   THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

              MFA No.2762 OF 2016 C/W
              MFA No. 4263 OF 2016 (MV)
IN MFA No.2762 OF 2016

BETWEEN:

Sawai Singh
Aged about 30 years
S/o Chanan Singh
Flat No.31, Tranquil Ambience
#4 & 5, Vignana nagar main road
Thippasandra Post
Bengaluru - 560 027

Also No.28, mobatani
Purohito ki Dhani
Mabotanyoka Tala
Th Baytoo Dist. Barmer                ... Appellant

(By Sri.Krishna Reddy R., Advocate)

AND:

The Managing Director
K.S.R.T.C., (Karnataka State
Road Transport Corporation)
K.H. road, Shanthinagar,
Bengaluru-560 027.
                                          ... Respondent

(By Smt. H.R. Renuka, Advocate)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:14.03.2016 passed
in MVC No.4166/2014 on the file of the 15th Additional
Small Causes Judge, 23rd ACMM Court of Small Causes,
Mayo hall unit, Bengaluru, Partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

IN MFA No. 4263 OF 2016

BETWEEN:

Karnataka State Road
Transport Corporation,
K.H. road, Shanthinagar,
Bengaluru-560 027
By its Managing Director
Rep. by Law officer.
                                             ... Appellant
(By Smt. H.R. Renuka, Advocate)

AND:

Sawai singh
Aged about 30 years
S/o Chanan Singh
Flat No.31, Tranquil Ambience
#4 & 5, Vignana nagar main road
Thippasandra Post
Bengaluru - 560 027

Also No.28, mobatani
Purohito ki Dhani
Mabotanyoka Tala
Th Baytoo Dist. Barmer
                                          ... Respondent
(By Sri.Krishna Reddy R., Advocate)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:14.03.2016 passed
in MVC No.4166/2014 on the file of the 15th Additional
Small Causes Judge, 23rd ACMM Bengaluru Partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      These Appeals, coming on for hearing, this day, this
Court, delivered the following:

                    JUDGMENT

MFA No.2762/2016 is filed by the claimant and

MFA No.4263/2016 is filed by the KSRTC (for short,

'Corporation') under Section 173(1) of the Motor

Vehicles Act, (for short, 'the Act') being aggrieved by

the judgment and award dated 14.03.2016 passed by

the MACT, Bengaluru (SCCH-19) in MVC

No.4166/2014. Since the challenge is to the same

judgment, both the appeals are clubbed together,

heard and common judgment is being passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 07.08.2014 at about 9.30

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-03/HJ-7742 on Bengaluru

- Tumkur NH-4 road near Rayarapalya 'U' turn and he

stopped his vehicle on the left side of the road. At

that time, a KSRTC bus bearing registration No.KA-

01/F-9190 being driven by its driver at a high speed

and in a rash and negligent manner, dashed to the

vehicle of the claimant. As a result of the aforesaid

accident, the claimant sustained grievous injuries and

was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the claimant

and the medical expenses are denied. It was pleaded

that the petition itself is false and frivolous in the eye

of law. It was further pleaded that the accident was

due to the rash and negligent riding of the vehicle by

the claimant himself. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, she sought for dismissal of the

petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1, Dr.Murali Kumar as PW-3 and

Dr.Jyothi V. as PW-4 and another witness as PW-2

and got exhibited documents namely Ex.P1 to Ex.P18.

On behalf of the respondents, one witness was

examined as RW-1 and did not got exhibited

documents. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.13,53,500/- along with interest at the rate of 6%

p.a. and directed the Corporation to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing carpentry work and earning Rs.15,000/-

per month. He has also examined his employer as

PW-2 who has categorically stated that he was paying

Rs.15,000/- to the claimant, but the Tribunal has

taken the notional income as only Rs.7,500/- per

month.

Secondly, due to the accident he lost his 100%

vision to left eye and he was unable to see from his

right and he has difficulty in doing his carpentry work.

He has examined the doctor as PW-4 who has

assessed the total visual disability at 60%. But the

Tribunal has considered the whole body disability as

50% which is on the lower side.

Thirdly, due to the accident the claimant has

suffered head injury and he was inpatient for a period

of 7 days. He has suffered lot of pain during treatment

and the compensation awarded by the Tribunal for

'pain and sufferings', 'loss of amenities' and other

incidental expenses is on the lower side. Hence, he

sought for allowing the appeal filed by the claimant

and dismissal of the appeal filed by the Corporation.

7. On the other hand, the learned counsel for

the Corporation has raised the following contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month and examined the

employer as PW-2, but the documents produced by

the claimant will not disclose that PW-2 was paying

Rs.15,000/- per month to the claimant. Therefore,

the notional income assessed by the Tribunal is just

and reasonable.

Secondly, in the cross-examination of PW-4

doctor, she has admitted that the disability suffered

by the claimant to his right eye was pre-existing

before the accident and this is not due to accidental

injury. Therefore, the disability suffered by the

claimant in respect of right eye cannot be considered.

In respect of left eye is concerned, even though in the

evidence PW-4 doctor has deposed that total disability

to the left eye is 100% this evidence of the doctor is

not supported by any medical documents. Even

Ex.P18 is only related to right eye and Exs. P15 and

P16 related to the treatment given to the claimant and

it will not explain any disability suffered by the

claimant in respect of his left eye. Therefore, the

whole body disability assessed by the Tribunal at 50%

is on the higher side.

Thirdly, due to the accident the injuries suffered

by the claimant is only in respect of left eye and she

was inpatient for only 7 days. Considering the

evidence of the doctor and considering the injuries

suffered by the claimant the compensation awarded

by the Tribunal for 'pain and sufferings', 'loss of

amenities' and other incidental expenses is on the

higher side. Hence, she sought for allowing the

appeal filed by the Corporation and dismissal of the

appeal filed by the claimant.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimant has not produced any evidence

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2014, the notional income has to be taken at

Rs.8,500/- p.m.

Due to the accident the claimant suffered head

injury, fracture frontal and ethmoid bones, left frontal

extradural haematoma with pneumoencephalus, scalp

heamatoma, hemosinus and fracture of left orbital and

traumatic optic nerve. The claimant was inpatient for

7 days. PW-4, Dr.Jyothi in her evidence categorically

stated that due to the accident the claimant has

suffered total disability of left eye at 100% and total

visual disability at 60%. In her cross-examination she

has admitted that as far as the disability suffered to

the right eye is concerned, it was pre-existing before

the accident. Ex.P18 is related to the examination of

the claimant by the doctor on 26.08.2015 with

reference to the right eye and Exs. P15 and P17

related to the treatment given to the claimant in the

hospital. Considering the evidence of PW-4 and

considering the injuries suffered by the claimant it is

very clear that the claimant has suffered injury to left

eye and the left eye disability is assessed by the

doctor as 100%. In respect of right eye is concerned,

the disability is pre-existing. I am of the opinion that

the whole body disability has to be assessed at 40%.

The claimant was aged about 28 years at the time of

the accident and multiplier applicable to his age group

is '17'. Thus, the claimant is entitled for compensation

of Rs.6,93,600/- (Rs.8,500*12*17*40%) on account

of 'loss of future income due to disability'.

Due to the accident the claimant has suffered

grievous injuries, he was inpatient for a period of 7

days, he has suffered lot of pain during treatment and

he has to suffer disability throughout his life.

Considering the evidence of the doctor and

considering the injuries suffered by the claimant, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'pain and sufferings' from

Rs.40,000/- to Rs.75,000/-, 'loss of amenities' from

Rs.25,000/- to Rs.50,000/-, 'attendant charges, food

and transport expenses' from Rs.4,000/- to

Rs.10,000/- and 'loss of income during laid-up period'

for a period of 3 months, i.e., Rs.25,500/-

(Rs.8,500*3).

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 75,000 Medical expenses 62,000 62,000 Food, nourishment, 4,000 10,000 conveyance and attendant charges Loss of income during 7,500 25,500 laid up period Loss of amenities 25,000 50,000 Loss of future income 12,15,000 6,93,600 Total 13,53,500 9,16,100

The claimant is entitled to a total compensation

of Rs.9,16,100/-.

The Corporation is directed to deposit the

compensation amount along with interest @ 6% p.a.

from the date of filing of the claim petition till the date

of realization, within a period of six weeks from the

date of receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeals are disposed of.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-