Karnataka High Court

Karnataka State Road Transport ... vs Gowramma on 10 June, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 10TH DAY OF JUNE, 2021

                          BEFORE

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

                 M.F.A.NO.10234/2013 (MV)
BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CHAMARAJANAGAR DIVISION
AGRAHARA STREET
NEAR CHAMARAJESHWARA TEMPLE
CHAMARAJANAGAR BY
ITS DIVISIONAL CONTROLLER
REPRESENTED BY ITS CHIEF LAW OFFICER
                                          ... APPELLANT
              (BY SMT. RENUKA H.R, ADVOCATE)
AND:

GOWRAMMA
W/O NAGARAJU
AGED ABOUT 31 YEARS
R/O MUTHIGE GRAMA
CHAMARAJANAGAR TALUK
AND DISTRICT-571 313.
                                          ... RESPONDENT
         (BY SRI P.SHIVAKUMAR, ADVOCATE-(ABSENT))

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.08.2013
PASSED IN MVC.NO.03/2012 ON THE FILE OF THE DISTRICT
JUDGE, MEMBER, MACT, CHAMARAJANAGAR, AWARDING
COMPENSATION OF Rs.6,54,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                           JUDGMENT

Though this appeal is listed for admission today, with the

consent of learned counsel appearing for the appellant, the same

is taken up for final disposal.

2. This appeal is filed by the appellant/KSRTC.,

challenging the Judgment and Award dated 06.08.2013 passed

in M.V.C.No.3/2012 on the file of the District Judge, Member,

MACT., at Chamarajanagar ('the Tribunal' for short), questioning

the quantum of compensation awarded by the Tribunal.

3. The factual matrix of the case is that on 29.10.2011

at about 8:45 a.m, the petitioner was standing on the left side of

the road near Mariyala in order to go to the Rudset Samsthe of

Mariyala, at that time, the driver of KSRTC bus bearing

registration No.KA-09-F-4067 drove the same from

Chamarajanagara towards Nanjangud in a rash and negligent

manner and caused accident to the petitioner. As a result, the

claimant had sustained grievous injuries.

4. The claimant in order to substantiate her case, she

examined herself as P.W.1 and got marked the documents as

Exs.P1 to P13. In order to prove her disability, petitioner got

examined the Doctor through Court Commissioner as CW.1 and

got marked the documents as Exs.C1 and C2. On the other

hand, the respondent has examined its conductor as R.W.1 and

not produced any documents.

5. 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.6,54,000/- with 6% interest per annum from the date of

petition till the date of realization of award amount. Being

aggrieved by the Judgment and Award of the Tribunal, the

present appeal is filed by the appellant/KSRTC.

6. The learned counsel for the appellant would

vehemently contend that the Tribunal has committed an error in

taking the income of Rs.5,000/- per month and also taking the

disability of 50%. The claimant in her cross-examination has

categorically admitted that she was earning Rs.2,500/- per

month and in spite of the admission, the Tribunal has committed

an error in taking the income of Rs.5,000/-. Hence, it requires

an interference of this Court.

7. In spite of the claimant represented through counsel,

there was no representation on the previous occasion and also

today. Hence, heard this matter in the absence of the learned

counsel for the respondent.

8. Having heard the arguments of learned counsel

appearing for the appellant and on perusal of the grounds urged

in the appeal and the materials available on record, the point

that would arise for consideration of this Court is:

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

(ii) What order?

Point Nos.(i) & (ii):

9. Having heard the learned counsel for the appellant

and on perusal of the material available on record, the Tribunal,

particularly, taken note of the nature of injuries sustained by the

claimant and also considered the evidence of the Doctor, which

had been discussed in paragraph No.13 in detail and also relied

upon the audiogram report dated 03.12.2011 and the evidence

of the Doctor comes to a conclusion that the audiometry report

shows that there is severe mixed hearing in left ear and

moderately severe mixed hearing loss in the right ear. The

petitioner is suffering tandem walking and also opined that the

petitioner is suffering 55% disability to the whole body. The

Tribunal after taking into consideration all these facts,

considered 50% of disability.

10. Having perused the evidence available on record,

particularly, the evidence of the Doctor and the nature of the

injuries suffered by the claimant, which has been discussed in

the judgment regarding CT scan of head shows diffuse cerebral

edema, fracture of amitrial wall of right maxilla and ant wall of

right frontal simus. The Tribunal also considered the CT scan

report, the evidence of the Doctor and the audiogram report

dated 03.12.2011 and comes to a conclusion that 50% disability

can be taken as against the evidence of the Doctor-P.W.2 i.e.,

55% disability to the whole body.

11. Having considered the nature of injuries and the

evidence of the Doctor, I am of the opinion that the Tribunal has

not committed any error in assessing the disability of 50% as

the claimant is suffering from hearing loss, particularly, severe

mixed hearing in left ear and moderately severe mixed hearing

loss in the right ear. Hence, it does not require any interference

by this Court.

12. However, taking into note of the compensation

awarded on different heads, an amount of Rs.36,000/- awarded

towards 'Pain and suffering'; an amount of Rs.80,000/- awarded

towards 'medical expenses' based on the documentary proof and

an amount of Rs.3,000/- awarded towards 'Loss of income at the

time of treatment' are just and reasonable. Hence, I do not find

any error in awarding the compensation under these heads.

13. The learned counsel for the appellant would

vehemently contend that the Tribunal committed an error in

taking the income of Rs.5,000/- while calculating 'loss of future

income due to disability caused by grievous injury', which is on

higher side. In the cross-examination, the claimant herself

categorically admitted that she was getting Rs.2,500/- per

month. When there is an admission on the part of the claimant

herself that she was getting Rs.2,500/- per month, the Tribunal

has committed an error in taking the income of Rs.5,000/-. The

claimant was aged about 30 years and there is no any

documentary proof with regard to her income. In the absence of

documentary proof, the Court has to take the notional income

and the notional income would be Rs.6,500/- in the year 2011.

Merely because she has given stray admission that she was

getting Rs.2,500/- per month, the same cannot be a yardstick to

assess the 'loss of future income due to disability caused by

grievous injury' as contended by the learned counsel for the

appellant. The Court has to take note of the notional income.

Even the notional income is also on higher side i.e., Rs.6,500/-.

However, the Tribunal has taken the income of Rs.5,000/- while

calculating the 'loss of income' and 50% disability, awarded an

amount of Rs.5,40,000/-. But the Tribunal has committed an

error in taking the multiplier of 18 instead of '17'. In the claim

petition itself, her age is mentioned as 30 years. When such

being the case, it requires modification by taking the multiplier

'17' it comes to Rs.5,10,000/- (5000x12x17x50/100) as against

Rs.5,40,000/- awarded by the Tribunal.

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

following:

ORDER

(i) The appeal is allowed in part.

(ii) The Judgment and Award dated 06.08.2013 passed in M.V.C.No.3/2012 on the file of the District Judge, Member, MACT., at Chamarajanagar is modified granting compensation of Rs.6,29,000/- as against Rs. 6,54,000/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of realization of award amount.