Karnataka High Court

Vijayakumar vs The Managing Director on 27 May, 2021

Author: Alok Aradhe Chandangoudar

                           1



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 27TH DAY OF MAY 2021

                       PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

           M.F.A. NO. 5660 OF 2018 (MV-INJ)

BETWEEN:

VIJAYAKUMAR
S/O PUJARI THIMMANNA @ THIMMAIAH,
AGED ANOUT 27 YEARS,
BUSINESS AND AGRICULTURIST
R/O BALENAHALLY VILLAGE,
HIRIYUR TALUK - 572143
CHITRADURGA DISTRICT.                    ... APPELLANT

[(BY SRI. R SHASHIDHARA, ADV. (VIDEO CONFERENCE)]

AND:

1.     THE MANAGING DIRECTOR
       K.S.R.T.C., K.H. ROAD,
       SARIGE BHAVAN
       BENGALURU,
       REPRESENTED BY DEPOT MANAGER,
       KSRTC
       CHITRADURGA - 577 501

2.     THE CHAIRMAN
       INTERNAL SECURITY FUND
       K.S.R.T.C., K.H. ROAD,
       SARIGE BHAVAN
       BENGALURU - 560 027
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3.    THE MANAGING DIRECTOR
      K.S.R.T.C., K.H. ROAD,
      SARIGE BHAVAN
      BENGALURU
      REPRESENTED BY
      DIVISIONAL CONTROLLER
      NEKRC DIVISIONAL OFFICE
      RAICHUR - 584 101.                    ... RESPONDENTS

[BY SRI. F.S. DABALI, ADV. FOR R1 - R3 (VIDEO CONFERENCE)]
                             ---

     THIS M.F.A. IS FILED UNDER SECTION 173 (1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
04.11.2017 PASSED IN MVC NO.440/2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, JMFC,
HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING   ENHANCEMENT     OF
COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act', for short) has

been filed by the claimant against the judgment dated

04.11.2017 passed by the Motor Accident Claims Tribunal

seeking enhancement of compensation.

2. Facts giving rise to the filing of the appeal briefly

stated are that the claimant Vijay Kumar was traveling as a

pillion rider on motor cycle bearing registration No.KA-16 X-

4704 from Balenahally to Yarabally. The claimant's friend

namely Jayaram, was riding the motor cycle. When they

reached near Channammanahally at about 1.30 p.m., one

KSRTC bus bearing registration No.KA 36 F-1000 which was

being driven by its driver in a rash and negligent manner,

dashed against the motor cycle in which the claimant was

traveling as a pillion rider. As a result of the aforesaid

accident, claimant and his friend sustained grievous injuries.

The claimant was hospitalized. The claimant was shifted to

Government hospital for first aid and thereafter, shifted to

District Hospital, Chitradurga where he received treatment as

inpatient.

3. The claimant thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the accident took place solely on account of rash and

negligent driving of the driver of the bus. It was further

pleaded that the claimant was working as an agriculturist and

was earning a sum of Rs.30,000/- p.m. It was further

pleaded that on account of the injuries sustained in the

accident, the appellant has sustained permanent disability.

The claimant claimed compensation to the tune of

Rs.40,00,000/- along with interest at the rate of 6% p.a.

4. Respondent No.1, in the statement of objections,

denied that the accident was caused due to the rash and

negligent driving of the driver of the bus. The age, income

and avocation of the claimant as well as nature of injuries

sustained, were also denied. The respondent No.2 did not

enter appearance and was proceeded exparte.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined himself as PW-1

and one Doll Venkatesh as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P15. The respondents

examined the driver as RW-1. However, no documentary

evidence was adduced. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the bus by

its driver. However, it was held that since 3 persons were

traveling on the bike in contravention of Regulations of Road

Safety, the claimant has contributed to the extent of 20% in

causing of the accident. The Tribunal further held that the

claimant is entitled to a sum of Rs.3,98,140/- along with

interest at the rate of 7.5% p.a. from the date of petition till

realization. In the aforesaid factual background, this appeal

has been filed.

6. Learned counsel for the appellant submitted that the

appellant at the time of accident was a young man aged

about 24 years. The Tribunal, in any case, ought to have

considered the income of the appellant as Rs.9,000/- p,.m.

and ought to have held that the claimant has sustained

permanent disability to the extent of 50% instead of 40%.

In this connection, our attention has been invited to the II

Schedule appended to Workmen's Compensation Act, 1923.

It is also submitted that a paltry amount of Rs.10,000/- each

has been awarded on account of pain and agony, food and

nourishment charges as well as amenities. It is further

submitted that the claimant remained inpatient for a period

of 35 days and therefore, the amount awarded on account of

attendant charges is also on the lower side and the loss of

income during laid up period also deserves to be enhanced

suitably.

7. On the other hand, learned counsel for the

Corporation submitted that the Tribunal has rightly held that

the instant case is a case of contributory negligence and has

rightly awarded compensation which does not call for any

interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court 'MOHAMMED SIDDIQUE AND ORS.

Vs. NATIONAL INSURANCE COMPANY LTD. AND ORS.'

AIR 2020 SC 520 has held that merely because the deceased

was riding a motor cycle along with the driver and another,

may not by itself without anything more, make him guilty of

contributory negligence. There must either be a casual

connection between the violation and the accident or a casual

connection between the violation and the impact of the

accident upon the victim. On perusal of the evidence on

record, there is no such evidence to show the casual

connection between the violation and the accident or

between the violation and the impact of the accident.

9. In view of the aforesaid well settled legal principles,

the finding recorded by the Tribunal that the claimant has

contributed to the causing of the accident to the extent of

20% merely on the ground that 3 persons were riding the

bike at the time of accident, cannot be sustained.

Accordingly, the same is set aside and it is held that the

accident took place solely on account of rash and negligent

driving of the driver of the bus.

       10.   Now,    we    may    advert   to   the    quantum     of

compensation.       At the time of accident, the claimant was

aged 26 years as evident from the medical records.               The

claimant has not adduced any evidence with regard to the

agricultural income. Therefore, the notional income of the

claimant has to be assessed with reference to the year of the

accident as per the chart prepared by the Karnataka State

Legal Services Authority. The accident took place in the year

2015 and therefore, the notional income has to be assessed

at Rs.9,000/- p.m. From the evidence of PW-2 namely

Dr.Venkatesh as well as II Schedule appended to the

Workmen's Compensation Act, 1923, it is evident that the

claimant has sustained permanent disability to the extent of

50%. Therefore, the claimant is held entitled to

Rs.9,18,000/- (Rs.9,000 x 12 x 17 x 50/100) under the head