Karnataka High Court
Dasharath @ Dasharathrao vs Managing Director on 9 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.200685/2019 (MV)
BETWEEN:
DASHARATH @ DASHARATHRAO S/O NAGAPPA
AGE: 59 YEARS OCC: INSTRUCTOR
AT POLYTECHNIC COLLEGE
AURAD (B), R/O: SIDDITALEEM, BIDAR.
... APPELLANT
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
MANAGING DIRECTOR
NEKRTC BIDAR - 585 401
BIDAR DIVISION
(OWNER OF BUS BEARING
REG.NO.KA-38-F-659) ... RESPONDENT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLE ACT,
1988 PRAYING TO A) CALL FOR THE RECORDS IN
MVC.NO.20/2015 ON THE FILE OF THE COURT OF
ADDITIONAL MACT AND PRL. SENIOR CIVIL JUDGE AND
CJM AT BIDAR, B) SET ASIDE THE JUDGMENT AND AWARD
DATED 18.02.2017 PASSED BY THE COURT OF
ADDITIONAL MACT AND PRL. SENIOR CIVIL JUDGE AND
CJM AT BIDAR AND CONSEQUENTLY ALLOW THE PRESENT
APPEAL THEREBY ENHANCE THE COMPENSATION FROM
`.3,75,000/- TO `15,00,000/- AS CLAIMED IN THE
PRESENT APPEAL AND ETC.,
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
2
JUDGMENT
The present appeal is filed by the claimant aggrieved
by the judgment and order dated 18.02.2017 passed in
MVC.No.20/2015 on the file of the Additional MACT and
Prl. Senior Civil Judge and CJM, at Bidar (henceforth
referred as 'Tribunal').
02. The brief facts leading upto filing of the present
appeal are that on 16.08.2014 the claimant, who is an
employee in polytechnic college at Aurad, Bidar as a Senior
Instructor was proceeding in NEKRTC bus bearing
Reg.No.KA-38-F-659 (henceforth referred as 'offending
vehicle'), from Bidar to Aurad at about 10.45 a.m., when
the said bus reached Aurad-B bus stand and while he was
getting down from the bus with proper knowledge of
driver, at that time the driver of the bus without taking
care of the same, drove the bus in a rash and negligent
manner, endangering human life and safety. Due to the
said act of the driver of the bus, the claimant fell down and
wheel of the bus passed over the right leg and thereby he
sustained grievous injuries. He was shifted to Government
Hospital at Aurad-B and thereafter Kamineni Hospital and
undergone surgery and amputation was done by removing
the right leg below the knee. He was hospitalized from
16.08.2014 to 20.08.2014. Thereafter, he took follow up
treatment on OPD basis from the said hospital. He incurred
huge amount for his treatment.
03. Thereupon, the claimant has filed a claim
petition under Section 166 of the M.V. Act seeking
compensation of `.69,77,000/- on the premise that prior to
the accident he was working as an instructor and earning
`.28,503/- per month. Due to the accidental injuries he
has lost right leg below the knee by amputation. Now he is
unable to do said job and lost 100% income. Being the
Senior Instructor he had promotion option and increments
every year and might have got 40% additional increase in
his salary towards his future service. Due to the accidental
injuries, he has lost the same and entitled to receive 40%
additional salary. Due to the amputation he is suffering
from mental and physical agony, as there is disfigurement
of his leg. Hence, seeks for compensation.
04. Upon service of notice, the respondent
appeared through its advocate and filed written statement
denying the mode and manner of accident, age, income
and occupation of the claimant. It was contended that the
driver of the bus was driving the bus with care and caution
in slow speed following traffic rules. Despite of instruction
given by the conductor of the bus, the claimant alighted
from the moving bus keeping his face backwards and
negligently and thereby contributed negligence to the
accident. The compensation claimed by the claimant is
exorbitant and excessive without any documentary proof.
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 marked twenty-one
documents as Exs.P1 to Ex.P.21. On behalf of the
respondent one Omkar examined himself as RW.1 and no
documents were marked.
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 `.3,75,000/- along with
interest at the rate of 6% p.a. from the date of petition till
payment under the following heads:-
Sl. Heads Amount
No.
01. Towards medical expenses `.00,20,000/-
02. Towards pain and suffering `.00,55,000/-
03. Towards loss of amenities `.00,50,000/-
04. Towards disfigurement for `.03,00,000/-
loss of right leg
05. Towards expectancy of life `.00,25,000/-
span
06. Towards conveyance charges `.00,10,000/-
07. Towards food and `.00,05,000/-
nourishment charges
08. Towards loss of expectance of `.00,10,000/-
life
Total `.04,75,000/-
07. The Tribunal while fixing the liability held that
the claimant by his negligent act had contributed for the
occurrence of the accident and thereby negligence of 25%
is fixed on the claimant and 75% liability is fixed on the
driver of the bus, thereby awarded the compensation of
`.3,75,000/- to the claimant.
08. Being aggrieved by the aforesaid judgment and
award, the claimant is before this Court seeking
enhancement of compensation.
09. The learned counsel for the appellant -
claimant reiterating the grounds urged in the appeal
memorandum submitted that the Tribunal grossly erred in
holding that the claimant himself had contributed
negligence for occurrence of the accident and apportioned
negligence at 25% without there being any evidence
whatsoever, only on the basis of evidence of RW.1. The
Tribunal has committed error in fixing the negligence at
25% on the part of the claimant. He further submits that
the Tribunal has not taken into consideration Ex.P.7 (a),
Ex.P.9, Ex.P.10, Ex.P.20 and Ex.P.21 being medical bills.
He further submits that in the accident the claimant has
suffered grievous injuries and amputation of his right leg.
The Tribunal has not taken into consideration this aspect of
the matter. He further submits that the compensation
awarded by the Tribunal is very meager. Hence, seeks for
allowing the appeal.
10. The learned counsel for the corporation
submitted that the contention of the claimant that he was
working as a Senior Instructor, but there is no evidence in
this regard. He further contended that the accident had
occurred due to his negligence. The Tribunal has rightly
assessed the compensation. Therefore, no interference is
warranted in the judgment and award passed by the
Tribunal. Hence, sought for dismissal of the appeal.
11. Heard the learned counsel for the parties and
perused the records.
12. The points that arise for consideration are:
"Whether the appellant - claimant has made
out a case for enhancement of compensation
and whether the Tribunal has justified in fixing
the liability at 25% on the part of the claimant
in the facts and circumstances of the case?"
13. The accident in question involving the bus
belonging to the respondent resulted in injuries to the
claimant is not in dispute. In the said accident the right leg
of the claimant was amputated is also not in dispute.
Similarly, the fact that claimant was working as Senior
Instructor in Polytechnic College at Aurad is also not in
dispute. However, it is contended by the claimant that due
to the accident and amputation of leg, he lost 100%
income and is unable to continue his work. But there is no
material evidence produced in this regard. The claimant
has not produced any documents to show that he has been
discharged from his service due to amputation of his leg.
The claimant was aged about 54 years at the time of the
accident. The claimant has not produced any material
evidence with regard to loss of his income. Therefore, the
Tribunal is justified in not awarding any compensation
under the head of loss of future income.
14. As regards the medical expenses, Ex.P.7 (a),
9, 10, 20 and 21 are the medical bills produced by the
claimants amounting to `.74,654/-. However, the Tribunal
at Para No.9 of the judgment has awarded the
compensation towards medical bills at `.20,000/-. But, in
the light of the evidence of Ex.P.7(a), 9, 10, 20 and 21 as
stated above the compensation awarded by the Tribunal at
`.20,000/- is incorrect and improper. Therefore, the
clamant is entitled for entire medical bill to the tune of
`.55,000/- in addition to `.20,000/-. So, totally the
claimant is entitled for the compensation towards medical
at the rate of `.75,000/-.
15. Adverting to the compensation towards pain
and suffering, the Tribunal has awarded compensation of
`.55,000/-. In view of the injuries suffered by the claimant
a sum of `.45,000/- is to be awarded to the claimant
under the head of pain and suffering which will meet the
ends of justice. Hence, the claimant is entitled totally
`.1,00,000/- towards pain and suffering.
16. Adverting to the compensation towards
disfigurement for loss of right leg, the Tribunal has
awarded a sum of `.3,00,000/-. Hence, this Court is of the
opinion that the compensation awarded by the Tribunal
towards disfigurement for loss of right leg at `.3,00,000/-
is just and proper and the same is maintained.
17. Adverting to the compensation towards loss of
expectancy of life span, the Tribunal has awarded two
compensation twice at `.25,000/- and `.10,000/-, totally
`.35,000/-. The compensation awarded by the Tribunal at
`.35,000/- towards loss of expectancy of life span is just
and proper and the same is maintained. A sum of
`.10,000/- has been awarded towards conveyance charges
by the Tribunal. The same is maintained as just and
proper. As regards, food and nourishment charges, a sum
of `.5,000/- is awarded by the Tribunal. An additional of
`.15,000/- is awarded under said head by making it to
`.20,000/-. The Tribunal has not awarded any amount
towards artificial limb which is required to the claimant.
Considering the nature of injuries and the facts and
circumstances, this Court is of the considered view that a
sum of `.35,000/- to be awarded towards future medical
expenses. The Tribunal has awarded `.50,000/- towards
loss of amenities. The same is maintained as just and
proper. In view of the same, point No.1 raised above is
answered accordingly and the claimant is entitled for total
enhanced compensation of `.6,05,000/- instead of
`.4,75,000/- as under:
Heads By Tribunal By this Court
Towards medical `.00,20,000/- `.0,55,000/-
expenses
Towards pain and `.00,55,000/- `.1,00,000/-
suffering
Towards loss of `.00,50,000/- `.0,50,000/-
amenities
Towards disfigurement `.03,00,000/- `.3,00,000/-
for loss of right leg
Towards expectancy of `.00,25,000/- `.0,25,000/-
life span
Towards conveyance `.00,10,000/- `.0,10,000/-
charges
Towards food and `.00,05,000/- `.0,20,000/-
nourishment charges
Towards loss of `.00,10,000/- `.0,10,000/-
expectance of life
Future medical expenses - `.0,35,000/-
Total `.4,75,000/- `.6,05,000/-
18. Adverting to the issue of liability, the Tribunal
by its impugned judgment at paragraph No.8, while
answering issue No.1 has held that the claimant himself
has contributed for occurrence of the accident. It is the
contention of the respondent that the conductor of the bus
had instructed the claimant not to alight from the moving
bus. However, the driver of the bus, who has been
examined as RW.1 has deposed that the claimant was in a
hurry as he was getting late to his duty and therefore he
has alighted from the moving bus without informing him
and thereby sustained injuries. The Tribunal from the
cross-examination of PW.1 has inferred that the claimant,
who has to attend his duty at 10.00 a.m. and since the
accident had occurred at 10.30 a.m., the claimant being
late to his duty tried to alight from the moving bus and
thereby contributed to the accident. This reasoning of the
Tribunal is illusory and without any cogent evidence in this
regard. The respondent has not examined the conductor of
the bus, who apparently instructed the claimant not to
alight from the moving bus. It is not the case of the
respondent that the driver of the bus had instructed the
claimant not to alight from the bus. The respondent has
not placed on record any cogent evidence to show that the
claimant had alighted from the moving bus. Mere surmises
would not substitute the requirement of evidence
regarding negligence. Therefore, the conclusion arrived at
by the Tribunal that merely because the accident had
taken place at 10.30 a.m. while the claimant was to attend
his duty at 10.00 a.m., could not be the reason for
attributing the negligence on the part of the claimant. The
said reasoning of the Tribunal requires to be set aside.
Hence, the entire compensation amount shall be paid to
the claimant by the respondent - Corporation. Hence,
point No.2 is answered accordingly. In the result,
following:
ORDER
i. The appeal in
MFA.No.200685/2019 filed by the
appellant/claimant is allowed in part.
ii. The judgment and award passed
by the Tribunal in MVC No.20/2015 is
modified.
iii. The appellant/claimant is held
entitled for enhanced compensation of
`6,05,000/- instead of `3,75,000/-
awarded by the Tribunal together with
interest at 6% per annum from the date
of claim petition till its realization.
iv. The respondent - Corporation shall
pay the compensation amount within a
period of eight weeks from the date of
receipt of a certified copy of this
judgment.
v. The order regarding deposit and
release made by the Tribunal shall
remain unaltered.
Sd/-
JUDGE
KJJ/Srt
