The Managing Director vs K. Vijay S/O. Gurunath
2021 Latest Caselaw 2397 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

          DATED THIS THE 25 T H DAY OF JUNE, 2021

                             BEFORE

          THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


           MISC.FIRST APPEAL No.21709/2012 (MV)
         C/W MISC.FIRST APPEAL No.23679/2012 (MV)

IN MFA 21709/2012

BETWEEN:

THE MANAGING DI RECTOR,
NWKRTC, CENTRAL OFFICE,
GOKUL ROAD, HUBLI (HUBLI DIVISI ON)
                                                      ... APPELLANT

(BY SRI I .C.PATIL, ADVOCATE)

AND

K.VIJAY S/O GURUNATH,
AGE: 26 YEARS ,
OCC: WORKING IN LAXMI TRADING COMPANY,
HUBLI , R/ O S HRIN AGAR, DHARWAD .
                                                    ... RES PONDENT

(BY SRI HAN UMANTH R.LATUR, ADV OCATE)

      THIS     MISC.FIRST   APPEAL   IS   FI LED   UNDER   S ECT ION
173(1)    OF    MOT OR   VEHICLES    ACT,   1988,    AGAINST    THE
JUDGMENT AND AWARD DATED 15.10.2011 PASSED IN MVC
NO.736/ 2009 ON THE FILE OF THE PRESIDING OFFI CER, FAST
TRACK COURT-III AT DHARWAD, A WARDING COMPENSATION
OF RS.10,14,942/ - WITH INTEREST AT THE RATE OF 6% P.A .
FROM THE DATE OF PETITION TILL I TS REALIZATION .
                                     2




IN MFA 23679/2012

BETWEEN:

K.VIJAY S/O GURUNATH,
AGE: 26 YEARS ,
OCC: WORKING IN LAXMI TRADING COMPANY,
HUBLI , R/ O S HRIN AGAR, DHARWAD ,
TQ. & DISTRICT: DHARWAD.
                                                             ... APPELLANT

(BY SRI HAN UMANTH R.LATUR, ADV OCATE)

AND

THE MANAGING DI RECTOR,
NWKRTC, CENTRAL OFFICE,
GOKUL ROAD, HUBLI.
                                                        ... RES PONDENT

(BY SRI V .P.KULKARNI, ADV OCATE)


      THIS    MISC.FIRST      APPEAL    IS   FI LED    UNDER        S ECT ION

173(1)   OF    MOT OR    VEHICLES       ACT,    1988,    AGAINST         THE

JUDGMENT AND AWARD DATED 15.10.2011 PASSED IN MVC

NO.736/ 2009 ON THE FILE OF THE PRESIDING OFFI CER, FAST

TRACK    COURT-II I     AT     DHARWAD,       ALLOWING        THE     CLAIM

PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT

OF COMPENSATI ON.


      THESE APPEALS HAVING BEEN HEARD AND RESERVED

FOR   JUDGMENT     ON        08.06.2021,     THIS     DAY,    THE     COURT

PRON OUNCED THE FOLLOWIN G:
                                     3




                              JUDGMENT

Challenging the common judgment dated 15.10.2011

passed by the Court of Fast Track-III, Dharwad (for short,

'Tribunal') in MVC No.736/2009; these appeals are filed

under Section 173 of Motor Vehicles Act, 1988

(hereinafter referred to as 'M.V.Act') by the insurer and

claimant.

2. While MFA No.23679/2012 is filed by claimant,

MFA No.21709/2012 is filed by the Corporation. With the

consent of the parties, appeals are taken up for disposal.

3. Brief facts giving rise to this appeal are that on

25.06.2009 when the claimant was riding motorcycle

bearing Reg.No.KA-25/Y-9436, on the left side of the road

near KEC on Gokul Road, Hubballi at about 11.30 p.m.,

the NWKRTC (Corporation) bus bearing registration

No.KA-25/F-2042 came from opposite direction and

dashed to the motorcycle and caused accident. In the

accident, claimant sustained following injuries:

1. Bandaged wound on hand split on right hand, fracture colles swelling of left thigh (3) left eye, achy moist.

2. 4 cut injury on left knee joint 2 cm x 1 cm

3. Sutured occipital region to left forehead to mid occipital region.

4. On left eye border wound 2 cm x 1 cm T bleed.

5. X-ray left knee joint CLW joint AP/ (no.12737), there is evidence of fracture patella on the left side.

6. There is evidence of fracture lateral fermoral condyle X-ray left forearm appllat (No.12737).

7. There is evidence of displaced fracture midshaft of radius. There is evidence of displaced fracture proximal 1/3 of shaft of ulna.

8. There is fracture of neck and greater tuberosity of humerus on left side.

4. He was admitted to hospital for treatment.

Despite prolonged treatment at KLE Hospital, KMC,

Hubballi and Vivekanand Hospital, Hubballi and

undergoing surgeries, claimant sustained permanent

physical disability. Stating that prior to the accident, he

was aged 30 years, working as Clerk-cum-Computer

Operator with Laxmi Trading and earning Rs.6,000/- per

month and on account of permanent disability he lost

employment and earning capacity, a claim petition under

Section 166 of M.V. Act was filed against the Corporation.

5. On receipt of summons, respondent entered

appearance and filed objections denying claim petition

averments and also denying that the accident occurred

due to rash and negligent driving of bus by its driver.

6. Based on pleadings, Tribunal framed following

issues:

1. Whether the petitioner proves that he has sustained injuries in RTA that occurred on 25.06.2009 at about 11.30 hours, on Gokul road, Hubli, due to the rash and negligent driving on the part of the driver of the NWKRTC bus bearing its registration No.KA-25/F-2042?

2. Whether petitioner proves that he is entitled for any compensation? If so, what amount and from whom?

3. What order?

7. In order to prove his case, claimant examined

himself as PW1, Dr.S.K.Hariraj Bhat as PW2 and his

employer as PW3. Exhibits P1 to P22 were marked. On

behalf of respondent, the driver of the bus was examined

as RW1. No documents were marked.

8. On consideration, the Tribunal answered Issue

No.1 in the affirmative, Issue No.2 and 3 by holding that

claimant is entitled for compensation of Rs.10,14,492/-

with interest at 6% per annum from the respondent under

various heads as follows:

          1        Pain and agony                   Rs.40,000/-
          2        Medical expenses               Rs.2,86,942/-
          3        Loss of amenities                Rs.40,000/-
          4        Loss of future income          Rs.6,48,000/-
                                           Total Rs.10,14,942/-

9. Aggrieved by the award, both the claimant as

well as Corporation have filed separate appeals. While the

claimant is seeking for enhancement, the Corporation is

challenging the finding regarding negligence and is also

seeking for reduction of quantum.

10. Sri Hanamant R.Latur, learned counsel for

claimant-appellant in MFA No.23679/2012, submitted that

though PW2-Doctor examined by claimant to prove

permanent disability deposed that claimant had suffered

permanent physical disability to the extent of 90% to the

left upper limb and 21% to the left lower limb, but

Tribunal considered it at 50% to whole body which calls

for enhancement. It was further submitted that

considering the number of fractures and severity of

injuries, compensation awarded towards pain and

suffering and towards loss of amenities at Rs.40,000/-

each was grossly insufficient. It was also submitted that

Tribunal erred in not awarding compensation towards loss

of income during laid up period and towards other

incidental charges. On said grounds sought enhancement

of compensation and for dismissal of appeal filed by the

Corporation.

11. On the other hand, Sri I.C.Patil, learned counsel

for the appellant-Corporation in MFA No.21709/2012 while

opposing enhancement in claimant's appeal, submitted

that the finding of Tribunal on negligence was in total

ignorance of evidence on record. Drawing attention of this

court to Ex.P3-spot panchanama and Ex.P4-MVI report, it

was submitted that the damage caused to the bus was

noted to be on its front left side. When the bus was

moving from Hosur towards Gokul and it dashed against

motorcycle from opposite direction, the only implication

would be that the motorcycle rider was riding on the

wrong side. However, the Tribunal ignoring this aspect

held that accident occurred due to rash and negligent

driving of bus by its driver. It was further submitted that

the Corporation had also examined bus driver in support

of its contention.

12. On quantum of compensation, it was submitted

that the claimant claimed that he was working with Laxmi

Trading Company and earning Rs.6,000/- per month. And

no corroboratory records such as muster roll, salary

payment ledger etc., are produced. Hence, claimant failed

to establish his employment. It was further submitted that

the disability assessed was to particular limb and not to

whole body. Therefore, loss of earning capacity cannot be

determined by taking the disability assessed in respect of

the limbs/organs cumulatively. Considering the disability

suffered in this case, the assessment of loss of earning

capacity at 50% would be excessive and without adequate

justification.

13. From the above submissions, it is seen that

there is no dispute about occurrence of accident on

25.06.2009 involving the motorcycle of claimant and the

bus belonging to Corporation. The dispute is about

negligence in causing the accident. While claimant

contends that it is due to negligent driving of bus, the

Corporation contends that it is entirely due to negligence

of claimant himself.

14. Even the quantum of compensation is disputed.

Hence, the following points arise for consideration in

these appeals:

i. Whether the finding of Tribunal regarding negligence in causing the accident calls for interference?

ii. Whether the quantum of compensation requires modification?

15. Insofar as negligence, it is seen that Tribunal

referred to police investigation records namely FIR as

Ex.P1, complaint-Ex.P2, Spot panchanama-Ex.P3, MVI

report-Ex.P4 and charge sheet-Ex.P6. Admittedly the FIR

and charge sheet are registered against driver of

Corporation bus. These records prima facie establish

negligence of bus driver. The Corporation examined bus

driver who deposed that accident occurred due to sole

negligence of claimant. Reliance is sought on contents of

complaint, spot panchanama and Motor Vehicles

Inspector's report along with oral evidence of RW1-bus

driver. It is seen that there is no explanation in the oral

evidence of claimant about the manner of occurrence of

accident and how the bus suffered damage on its left front

side, when claimant was going on his left side, and bus

dashed against motorcycle from opposite side. Nothing is

suggested nor elicited about this fact during cross-

examination of RW1-driver. As noted by Tribunal, there is

conspicuous absence of exact location of accident spot in

spot panchanama, though width of road is mentioned. Yet

another factor to be taken note of is that complaint is

given by a co-employee of Laxmi Trading Company, where

claimant was also working. The complainant was following

the claimant on another motorcycle. However, nowhere in

complaint, it is stated that bus driver drove bus on wrong

side and dashed against motorcycle of claimant.

Therefore, all the above circumstances call for drawing of

adverse inference against the claimant. The accident

occurred due to claimant riding motorcycle on wrong side

of the road.

16. On a careful consideration of type of vehicles

involved in the accident, time of accident and width of

road, it would be reasonable to assign 20% contributory

negligence on claimant and 80% on driver of bus, as there

is no explanation from either claimant or bus driver, why

they could not stop their vehicle to avoid the collision.

Thus, Point No.1 is answered in the affirmative. It is held

that there is contributory negligence to an extent of 20%

on the part of the claimant and 80% on the part of

Corporation bus driver.

17. As regards quantum of compensation, it is seen

that the claimant suffered communited fracture of left

humorous, fracture of both bones of left forearm and head

injury. However, Tribunal awarded a sum of Rs.40,000/-

towards pain and suffering. Considering nature and

number of fractures suffered, award of Rs.40,000/- would

be grossly inadequate. In the considered opinion, it would

be just and proper to award a sum of Rs.80,000/- instead.

18. The Tribunal on careful scrutiny of bills

produced awarded sum of Rs.2,86,942/- towards medical

expenses. As the entire medical bills produced are

considered and there is complete reimbursement, there is

no justification for enhancement of this compensation.

19. As per evidence, claimant was working as Clerk-

cum-Computer Operator and earning Rs.6,000/- per

month. Though no evidence of training in computers or

other employment records are produced, there is

consistent mention of claimant's employment with Laxmi

Trading Company in the complaint, charge sheet, medical

records and Ex.P16-salary certificate and Ex.P17-relieving

letter. In the absence of contrary evidence, the finding of

Tribunal regarding claimant being employed with Laxmi

Trading and earning Rs.6,000/- per month is justified and

does not call for any interference.

20. While denying compensation towards loss of

income during laid up period, the Tribunal has referred to

evidence of PW3 that claimant was on leave from

25.06.2009 to 24.07.2009 and referred to Ex.P17. In the

absence of specific evidence that the claimant was not

paid salary for the said period, denial of compensation

under this head would be justified. The same is affirmed.

21. However, claimant has taken inpatient

treatment at KLE Hospital from 26.06.2009 to 03.07.2009

and thereafter at KMC Hospital, Hubballi from 06.07.2009

to 18.07.2009 and finally at Vivekanand Hospital, Hubballi

from 18.07.2009 to 24.07.2009. The total inpatient period

is 28 days. The claimant would indeed be entitled for

compensation towards incidental charges. Considering

duration of treatment, it would be just and proper to

award Rs.12,000/- towards attendance, conveyance, food

and nourishment etc.

22. Further while assessing loss of future earnings,

Tribunal took note of injuries suffered and deposition of

PW2-Doctor, who assessed physical disability to the

extent of 90% to left upper limb and 20% to left lower

limb which is mentioned in Ex.P19-disability certificate.

However Tribunal awarded compensation of Rs.6,48,000/-,

by considering loss of earning at 50% on the ground that

the left upper limb of claimant is totally paralyzed while

left lower limb is also severely restricted. But counsel for

Corporation contends that normally ratio of disability to

whole body as against upper limb is 1/4 t h , while in case of

lower limb, it is 1/3 r d .

23. In the case on hand, disability to the whole

body would be "1/4 t h of 90 = 22.5 and 1/3 r d of 20% is 7."

The total disability would be 22.5 + 7 i.e. 29.5. Therefore

loss of earning capacity cannot be more than 29.5%.

24. But as per the law laid down in the case of Raj

Kumar V/s Ajay Kumar reported in (2011) 1 SCC 343,

assessment of loss of earning capacity cannot be done on

a mathematical formula. The first step would be to

determine physical disability and thereafter assess

functional disability having due regard to the profession of

the injured. The resultant percentage would be the loss of

earning capacity. In the case on hand, PW2-Doctor has

assessed physical disability to the left upper limb at 90%

and to the left lower limb at 20%. In the disability

certificate-Ex.P19, PW2 made following observations

during clinical examination of claimant.

1. Diffuse tenderness of left knee.

2. Multiple healed sear over left knee.

3. The left knee movement is painful and restricted by 40% (painful 80 movement)

4. Operated sear over left shoulder and left forearm.

5. Tenderness over left shoulder and forearm middle 3 r d .

6. No actual movement of left shoulder, elbow, wrist and fingers of left upper limb.

7. Sensation of left upper limb lost elbow C5.

8. Wasting of musculature arm and forearm left upper limb.

9. X-ray of left shoulder with arm No.6533 dated 19.10.2010 shown old operated fracture left head and neck, united with plates and screws in situ. X-ray left forearm (No.6533 dated 19.10.10) shown old fracture radius and ulna middle 3 r d united with plates and screws in situ. Left shoulder shows united fracture of upper end of humorous with plates and screws in place with osteoporosis. X-ray of left knee (No.860 dated 02.07.11) shows old malunited fracture of patella with irregular surfaces and malunited fracture of lateral condyle femur with depressed joint surface.

25. The assessment of physical disability is based

on the above clinical examination, especially the fact that

sensation of left upper limb lost below C5 and no actual

movement of left shoulder, elbow, wrist and fingers of left

upper limb which would virtually mean that claimant had

lost use of his left hand. Apart from above, there is

fixation of plates and screws and osteoporosis is also

noted. There is malunion with irregular surfaces. PW2 has

also noted moderate restriction of movement of knee

resulting in assessment of disability of 21%. Though loss

of employment as per Ex.P17 is disputed by Corporation,

there is no material elicitation in the cross-examination of

either PW1-claimant or PW3-employer. At the same time,

merely on the ground that there is loss of employment, it

cannot be assumed that there would be total loss of

earning capacity. As per decision of the Hon'ble Supreme

Court in the case of Raj Kumar V/s Ajay Kumar

(supra), the possibility of claimant doing some other job

has also to be considered.

26. In the case on hand, considering the possibility

and also difficulty to perform any other job, this court

feels that it would be appropriate to consider loss of

earning capacity to the extent of 60%. Hence the future

loss of earning of claimant would be as follows:

Rs.6,000 x 60% x 12 x 18 = Rs.7,77,600/-.

The same is awarded to the claimant.

27. The Tribunal has awarded a sum of Rs.40,000/-

towards loss of amenities. Considering the nature of

injuries sustained, the permanent physical disability

caused and age of claimant, award towards loss of

amenities is inadequate. In the considered opinion of this

court, it would be just and proper to award a sum of

Rs.60,000/- towards loss of amenities.

28. In the result, point No.2 is answered in the

affirmative as above. The claimant is held entitled for

enhanced compensation as follows:

           1      Pain and suffering                     Rs.80,000/-
           2      Medical expenses                     Rs.2,86,942/-
           3      Incidental charges                     Rs.12,000/-
           4      Future loss of income                Rs.7,77,600/-
           5      Loss of amenities                      Rs.60,000/-
                                                Total Rs.12,16,542/-

29. For the foregoing reasons, I pass the following:

ORDER

MFA No.21709/2012 is allowed to the extent of apportioning contributory negligence upon the claimant to the extent of 20%. The Corporation would be liable to pay 80% of the reassessed compensation.

MFA No.23679/2012 is allowed in part.

      The     total     enhanced               compensation             is
      Rs.12,16,542/-          as    against          Rs.10,14,942/-

awarded by the Tribunal. The claimant would be entitled to 80% of the enhanced compensation i.e. Rs.12,16,542 x 80% = Rs.9,73,233/- only. The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till deposit.

The directions issued by the Tribunal regarding deposit of compensation and release would apply in the same proportion to the revised compensation. The period of deposit shall however be five years initially.

The amount in deposit in MFA No.21709/2012 is ordered to be transmitted to the Tribunal for disbursal. The Corporation is directed to deposit balance compensation if any, within a period of three months.

Sd/-

JUDGE

CLK