Divisional Manager vs Roshan Zameer @ Zameer Ahmed
2021 Latest Caselaw 2531 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 1ST DAY OF JULY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.3534/2014 (MV)

BETWEEN:

DIVISIONAL MANAGER
KARNATAKA STATE ROAD TRANSPORT
CORPORATION (KSRTC), K.H.ROAD
BENGALURU-560 027.

NOW BY THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICES
K.H.ROAD, BENGALURU-560 027
REPRESENTED BY ITS CHIEF LAW OFFICER.        ... APPELLANT

               (BY SRI F.S.DABALI, ADVOCATE)
AND:

ROSHAN ZAMEER @ ZAMEER AHMED
S/O BASHEER AHMED
AGED ABOUT 29 YEARS
R/AT NO.431, EEDGA MOHALLA
2ND CROSS, MANDI BELE ROAD
VIJAYAPURA, DEVANAHALLI TALUK
BENGALURU-562 135
BENGALURU RURAL DISTRICT.                   ... RESPONDENT

                   (RESPONDENT SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.02.2014
PASSED IN MVC.NO.1133/2012 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
AWARDING COMPENSATION OF Rs.4,88,403/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Though this matter is listed for admission today, with the

consent of the learned counsel appearing for the

appellant/Insurance Company, it is taken up for final disposal.

2. This appeal is filed by the appellant/Insurance

Company challenging the Judgment and Award dated

19.02.2014 passed in M.V.C.No.1133/2012 on the file of Motor

Accident Claims Tribunal, Bengaluru (SCCH-17) ('the Tribunal'

for short), questioning the quantum of compensation awarded by

the Tribunal and also not taking the negligence on the part of

the claimant.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case is that the claimant

was driving his autorickshaw on 31.07.2011 at about 3:00 p.m,

near Y.V.C. Junction and was taking U turn, on BB Road, at

Devanahalli, Bengaluru, at that time, the KSRTC bus bearing

registration No.KA-07-F-1315 came with high speed in a rash

and negligent manner and dashed against the autorickshaw. As

a result, he had sustained the injuries. Immediately, he was

shifted to NIMHANS Hospital, there he took the treatment since

he has suffered the head injuries and fractures.

5. The claimant in order to substantiate his claim, he

himself examined as P.W.1 and also examined the Doctor as

P.W.2 and got marked the documents as Exs.P1 to P14. P.W.2,

the Doctor in the evidence, he assessed the disability of 42%

and the same has been accepted by the Tribunal. On the other

hand, the respondents have examined one witness as RW.1 and

have not placed any documentary evidence before the Tribunal.

6. The Tribunal, after considering both oral and

documentary evidence available on record, allowed the claim

petition of the petitioner in part granting compensation of

Rs.4,88,403/- with 6% interest per annum from the date of

petition till its realization. Being aggrieved by the Judgment and

Award of the Tribunal, the present appeal is filed by the

claimant.

7. The learned counsel appearing for the

appellant/Insurance Company would vehemently contend that

the disability accepted by the Tribunal is not correct and no

material to accept the evidence of the Doctor and he is not the

treated Doctor and the Tribunal has committed an error in

accepting the evidence. The learned counsel also would submit

that the accident was taken place when he was taken the vehicle

Autorickshaw in the median road and he was negligent in taking

'U' turn without observing the other vehicles, which is coming in

the main road. Hence, the Tribunal ought to have taken the

negligence on the part of the driver-claimant. Hence, it requires

an interference of this Court.

8. This Court issued notice against the respondent.

Respondent is served and unrepresented.

9. Having heard the arguments of learned counsel

appearing for the appellant/Insurance Company and on perusal

of the grounds urged in the appeal and the materials available

on record, the points that would arise for consideration of this

Court are:

(i) Whether the Tribunal has committed an error in not taking the negligence on the part of the driver of the Autorickshaw i.e., claimant?

(ii)Whether the Tribunal has committed an error in awarding exorbitant compensation as claimed in the appeal and whether it requires an interference of this Court?

(iii) What order?

Point No.(i):

10. Having heard the learned counsel for the appellant

and on perusal of the material available on record, P.W.1-

claimant was examined and he relied upon the documents

Ex.P1-FIR, Ex.P2-Complaint, Ex.P3-Charge Sheet, Ex.P4-sketch

map, Ex.P5-Panchanama and Ex.P6-MVA report. In the cross-

examination except making the suggestion that the accident was

occurred due to his negligence, nothing is elicited from the

mouth of P.W.1. He denied the said suggestion. The only one

suggestion made to P.W.1 is that the accident was occurred due

to his negligence and nothing is elicited to come to a conclusion

that he was also negligent in driving the Autorickshaw.

11. The learned counsel for the appellant/Insurance

Company would vehemently contend that the Court has to take

note of the manner of the accident and in support of its claim;

they have examined one witness as R.W.1, who is the driver of

KSRTC. On perusal of the evidence of driver-R.W.1, in the cross-

examination he categorically admits that he has filed a complaint

to the police after the accident. He admits that he has not

produced the copy of the complaint. It is important to note after

the accident, he has not given any complaint and instead of that

he came and given the evidence before the Tribunal that the

accident was on account of the negligence on the part of the

claimant.

12. In order to substantiate the same, no material is

placed. Admittedly, the FIR is registered against the driver of the

KSRTC, bus and after the investigation; charge sheet has been

filed against the driver of the KSRTC, bus. Apart from that, on

perusal of Ex.P4-sketch map, it clearly discloses that the bus

came in the very same direction and Auto rickshaw which came

from the other road taken 'U' turn and the bus came to the right

side and hit the auto rickshaw. Ex.P4 - sketch map goes against

the driver of the Bus. Hence, the very contention of the learned

counsel for the appellant cannot be accepted and no cogent

evidence before the Court in order to come to other conclusion

that the driver of the Auto rickshaw was negligent. Merely the

auto rickshaw driver took the 'U' turn and the same cannot be a

ground and there is a provision to take 'U' turn of auto rickshaw

and he took 'U' turn. After taking 'U' turn only, the KSRTC bus

came and hit the rear portion of auto rickshaw and IMV report

also supports the claim of the claimant. Hence, I do not find any

reasons to come to a conclusion that the accident is also on

account of negligence on the part of the auto rickshaw

driver/claimant as contended by the learned counsel for the

appellant. Hence, I answered point No.(i) as 'negative'.

Point No.(ii):

13. On perusal of the judgment and award with regard to

quantum of compensation is concerned, the Tribunal has rightly

awarded an amount of Rs.25,000/- on the head of pain and

agony, Rs.3,000/- on the head of inpatient, Rs.17,003/- on the

head of medical expenses based on the medical bills,

Rs.15,000/- on the head of loss of income. He was an inpatient

for a period of 10 days and apart from that he has sustained

Bifrontal Contusion and fractures of Right Frontal & Occipital and

he was treated in NIMHANS from 04.08.2011 to 09.08.2011 and

15.11.2011 to 18.11.2011. Hence, it is clear that from August

2011 till November 2011, he took the treatment intermittently.

When such being the case, the compensation awarded on the

head of loss of income Rs.15,000/-, which is also on lower side.

14. The main contention of the learned counsel for the

appellant is that the Tribunal awarded compensation of

Rs.4,88,403/- on all heads accepting the evidence of P.W.2

assessing the disability of 42% is erroneous. Having perused

the evidence of Doctor-P.W.2, no doubt, he was not a treated

Doctor. In the affidavit in detail, he has narrated he assessed

the disability of 42% having taken note of the nature of injuries,

he has sustained i.e., head injury and also he underwent bi

frontal craniotomy, duroplasty. In the affidavit he categorically

says he complaints of frontal headache, decreased memory and

decreased smell bilaterally, inability to work. In paragraph No.5

of the affidavit also, he has assessed the disability in respect of

frontal region; his motor power as grade 5/5. On testing his

smell individual nostrils to coffee powder; asafoetida with eyes

closed, he could not recognize the smell. He could not

understand mini mental status examination for memory. He

could tell his name but becomes irritable on repeated questing

for remote, recent events. The Doctor also assessed the

disability as per Ideas Scoring Sheet, cognitive disability as per

NIMHANS guidelines is 92% and global disability (7 to 13) = 40

to 70% and also taken note of the total disability

5+20+40=65%, using DGHS guidelines and telescopic formula

for multiple disabilities. Having considered all the materials, he

has assessed the disability at 42.77%. In the cross-examination

of P.W.2, nothing is elicited with regard to the contents of the

affidavit except making the suggestion that he is falsely

deposing with respect to the problem faced by the petitioner as

mentioned in his affidavit and except the suggestion no answer

is elicited with regard to doubting the disability assessed by the

Doctor. The Doctor also categorically says that in case of head

injury, the disability of 1/3rd to the particular limb is not

applicable. It is suggested that only in order to help the

claimant, he has assessed the disability on the higher side, the

same is also denied.

15. Though the learned counsel for the appellant would

vehemently contend that the disability of 42.77% cannot be

accepted and in the cross-examination of P.W.2, nothing is

elicited doubting the disability assessed by the Doctor. No doubt,

he was not the treated Doctor and he has assessed the disability

based on the clinical examination and also Neuro Psychological

assessment report as per Ex.P12 and CT scan report and film as

per Exs.P13 & 14 and having subjecting him for CT scan and

Neurological report, he assessed the disability. When such being

the case, the very contention of the learned counsel for the

appellant that the disability assessed by the doctor was on

higher side cannot be accepted.

16. It is also important to note that the Tribunal also

taken the monthly income of Rs.5,000/- and this is the accident

of the year 2011 and the notional income ought to have been

taken as Rs.6,500/- per month and while taking the income,

lesser income was taken by the Tribunal and they have not filed

any appeal. Under the circumstances, I do not find any force in

the contention of the learned counsel for the appellant that the

compensation awarded by the Tribunal was on higher side even

this Court takes the monthly income of Rs.6,500/- the

compensation would be more only. Hence, there are no grounds

to allow the appeal.

Point No.(iii):

17. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal, forthwith.

Sd/-

JUDGE

cp*