Karnataka High Court
Divisional Commissioner vs Sangamesh And Anr on 25 November, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.202268/2019
c/w
MFA.No.201226/2019 (MV)
MFA.No.202268/2019
BETWEEN:
SANGMESH S/O KHUSHAIRAO
AGE: 23 YEARS OCC: MECHANIC
R/O: GORNALLI TQ: & DIST: BIDAR.
... APPELLANT
(BY SRI. SANTOSH BIRADAR, ADVOCATE)
AND:
01. DIVISIONAL COMMISSIONER
OF KSRTC BIDAR, NEAR D.C.OFFICE
STADIUM ROAD, BIDAR-585 401.
2
02. SANJAY MATHAPATI
S/OKALAPPA SWAMY
AGE: MAJOR OCC: DRIVER
R/O: CHAWAR DABAKA-585 326.
TQ: AURAD (B). DIST: BIDAR.
... RESPONDENTS
(BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
1988 PRAYING TO ALLOW THE APPEAL, MODIFY THE
IMPUGNED JUDGMENT AND AWARD DATED 02.04.2019
PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL
JUDGE AND MACT AT BIDAR, IN MVC.NO.2/2018 AND
ENHANCE THE COMPENSATION.
MFA.NO.201226/2019
BETWEEN:
DIVISIONAL COMMISSIONER OF KSRTC
BIDAR, ADDRESS: NEAR D.C. OFFICE
STADIUM ROAD, BIDAR
(CUSTODIAN OF THE VEHICLE BEARING REG.
NO.KA-38-F-898)
NOW THROUGH ITS CHIEF LAW OFFICER NEKRTC
CENTRAL OFFICE, SARIGE SADAHANA, MAIN ROAD,
KALABURAGI
NOW THROUGH ITS AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
3
AND:
01. SANGMESH S/O KHUSHALRAO
AGE: 23 YEARS OCC: MECHANIC
R/O: GORNALLI TQ & DIST: BIDAR.
02. SANJAY MATHAPATI S/O KALAPPA SWAMY
AGE: MAJOR OCC: DRIVER
R/O: CHAWAR DABKA
TQ: AURAD (B). DIST: BIDAR - 585 326.
... RESPONDENTS
(BY SRI. SANTOSH BIRADAR, ADVOCATE FOR R1
SRI. SHESHADRI JAISHANKAR, M. AND SRI.
SANGOLI NAGANNA ADVOCATE FORR2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
1988 PRAYING TO MODIFY THE ORDER OF THE TRIBUNAL
AND CALL FOR THE LOWER COURT RECORDS AND HEAR
THE PARTIES AND SET-ASIDE THE JUDGMENT DATED
02.04.2019 AND AWARD DATED 08.04.2019 IN
MVC.NO.2/2018 IN THE COURT OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND ADDL. MACT AT BIDAR.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
4
JUDGMENT
MFA.No.202268/2019 is filed by the claimant and
MFA.No.201266/2019 is filed by the KSRTC against the
judgment and order dated 02.04.2018 passed in
MVC.No.2/2018 on the file of Additional Senior Civil Judge
and MACT, Bidar (henceforth referred as 'Tribunal').
02. The brief facts leading upto filing of the
appeals are that on 02.07.2017 at about 09.00 p.m. the
claimant was proceeding on his motorcycle bearing
Reg.No.KA-38-L-6344 towards his village Gornalli from
Bidar side. When he reached near Chitta cross, a KSRTC
bus bearing its Reg.No.KA-38-F-898 came from opposite
side driven by its driver - respondent No.1 in a rash and
negligent manner and dashed to the bike. Due to this
impact the claimant fell down and sustained grievous
injuries. The claimant was shifted to Government Hospital,
Bidar. Based on the MLC report, the Bidar Traffic Police
have registered a criminal case against the driver of the
bus.
03. Thereupon the claimant has filed a claim
petition under Section 166 of the M.V. Act seeking
compensation of `.21,00,000/- with interest at the rate of
18% p.a. from the date of petition till the date of
realization from the respondents No.1 and 2 on the
premise that he was aged about 22 years at the time of
accident and was earning `.20,000/- per month from being
a mechanic. That due to the accident, the injuries suffered
in the nature of fracture of inter condylar region tibia and
distral ends of femur, he is unable to carryout his routine
work and injuries sustained have drastically reduced his
earning capacity. That in view of the accident that occurred
on account of rash and negligent driving by the driver of
the offending bus resulting in the aforesaid injuries the
respondent Nos.1 and 2 are liable to pay compensation.
Hence, sought for compensation.
04. Upon service of notice, the respondents
appeared through their advocates and filed written
statement denying the mode and manner of accident. It
was contended that the accident occurred due to rash and
negligent riding of the bike by the claimant himself, who
had contributed the accident. That the respondent No.1
driver was not negligent in the accident. It is contended
that compensation claimed by the claimant is exorbitant
and rate of interest is also excessive. 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 himself examined as PW.1 and Dr. Mallikarjun
examined as PW.2 and exhibited 12 documents marked as
Exs.P.1 to 12. On behalf of the respondent one Sanjay
examined 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
bus by its driver causing injuries to the claimant.
Consequently, the Tribunal held that the claimant is
entitled for a total compensation of `.3,80,148/- along with
interest at the rate of 9% p.a. from the date of petition till
payment under the following heads:-
Sl. Heads Amount
No.
01. Medical Expenses `.01,06,348/-
02. Loss of earning during the `.00,07,000/-
period of treatment
03. Loss of future earning on `.02,26,800/-
account of permanent
disability
04. Pain and suffering `.00,20,000/-
05. Loss of amenities `.00,20,000/-
Total `.03,80,148/-
07. Being aggrieved by the aforesaid judgment and
order the claimant is before this Court seeking
enhancement of the compensation and the respondent-
NEKSRTC is before this Court seeking reduction of the
compensation.
08. The learned counsel for the appellant -
claimant reiterating the grounds urged in the appeal
memorandum submitted that the Tribunal without taking
into consideration the actual income of the claimant, has
assessed the same on the lower side. The Tribunal has also
not taken into consideration the disability certificate issued
by PW.2 assessing disability at 44%. The Tribunal however
has fixed the disability at 15% which is also on a lower
side. He further submitted that grant of compensation
under other heads is also on lower side. Hence, sought for
allowing the appeal.
09. The learned counsel for the appellant - KSRTC
reiterating the grounds urged in the appeal memorandum
submitted that the compensation awarded by the Tribunal
is on higher side and interest at 9% is also on higher side.
The Tribunal has awarded compensation towards medical
expenses at `.1,06,348/- even when the claimant had
produced the documents only for `.86,348/-. It is further
contended that the claimant has not made out any
grounds to enhance the compensation. Hence, sought for
allowing the appeal.
10. Heard the learned counsel for the parties and
perused the records.
11. The points that arise for consideration are:-
1. Whether the claimant has made out a
case for enhancement of compensation?
2. Whether the KSRTC has made out a case
for reduction of the compensation?
12. The accident in question resulting in injuries
sustained by the claimant is not in dispute. In the
aforesaid accident involvement of the motorcycle ridden by
the claimant and bus driven by the respondent No.1 is also
not in dispute. That due to the accident, the injuries
suffered in the nature of supracandyler fracture of right
tibia and other injuries for which claimant had undergone
operation fixation of implant and other treatments.
Considering the injuries suffered by the claimant, the
doctor has issued the disability certificate assessing
disability at 44%. As per the assessment made by PW.2
the claimant has suffered 44% disability to the particular
limb. Though it is the claim of the claimant that he was
earning `.20,000/- per month being a mechanic, but no
material evidence has been produced to justify the said
claim. The Tribunal in the absence of material evidence has
assessed the notional income at `.7,000/- per month.
13. This Court, in the absence of evidence with
regard to income of the victims of road traffic takes into
consideration the chart prepared by Karnataka State Legal
Services Authority. According to which the notional income
of the victim of road traffic accident occurred in the year
2017 is fixed at `.10,250/- per month. In the instant case
the accident occurred on 02.07.2017, therefore, the
notional income has to be taken into consideration at
`.10,250/- per month.
14. The disability assessed by the Tribunal at 15%
as against 44% assessed by PW.2 under the facts and
circumstances of the case is just and proper and the same
is maintained. Thus, the claimant is entitled for
compensation under the head of loss of future income at
`.3,32,100/- (`.10,250 x 12 x 18 x 15%).
15. Considering the nature of injuries suffered by
the claimant, the compensation of Rs.20,000/- awarded by
the Tribunal towards pain and suffering is enhanced to
`.30,000/-.
The Tribunal has awarded the compensation of
`.20,000/- towards loss of amenities, the same is
enhanced to `.30,000/-. The Tribunal has awarded the
compensation at `.7,000/- towards loss of income during
the laid up period, but in view of the assessment of the
notional income at `.10,250/- per month and considering
the nature of injuries suffered, the claimant must have
taken rest for three months. Therefore, loss of income
during laid up period is enhanced to `.37,250/-
(`.10,250x3) instead of `.7,000/-. The Tribunal has not
awarded the compensation towards food and nourishment
charges. The claimant is entitled for `.10,000/- towards
food and nourishment charges. The award of compensation
under the head of medical expenses is just and proper and
same is maintained. Hence, the claimant is entitled for
total compensation of `.5,45,700/-. The award of interest
made at 9% p.a. by the Tribunal is reduced to 6% p.a.
Therefore, the compensation awarded by the Tribunal
deserves to be re-determined and re-calculated as
follows:-
Sl. Awarded by the Enhanced by this
Heads
No. Tribunal Court
01. Medical Expenses `.01,06,348/- `.01,06,348/-
02. Loss of earning during the `.00,07,000/- `. 00,37,250/-
period of treatment
03. Loss of future earning on `.02,26,800/- `.3,32,100/-
account of permanent
disability
04. Pain and suffering `.00,20,000/- `.00,30,000/-
05. Loss of amenities `.00,20,000/- `.00,30,000/-
06. Towards food and - `.00,10,000/-
nourishment
Total `.03,80,148/- `.5,45,698/-
(Rounded up to
`.5,45,700/-)
16. Hence, the points raised for consideration are
answered accordingly.
17. In the result, the following;
ORDER
(i) The MFA.No.202268/2019 filed by the claimant and
MFA.No.201226/2019 filed by the KSRTC, are partly
allowed.
(ii) The judgment and award dated 02.04.2018 passed
in MVC.No.2/2018 by the Additional Senior Civil
Judge and MACT, Bidar, is modified.
(iii) The claimant is held entitled for a total compensation
of `..5,45,700/- together interest at the rate of 6%
p.a. from the date of claim petition till payment.
(iv) The respondent No.2 - insurance company is
directed to pay the above compensation with interest
at the rate of 6% p.a. from the date of claim petition
till the date of payment, within a period of three
months from the date of receipt of certified copy of
this judgment.
(v) The amount in deposit if any be transmitted to the
Tribunal.
Sd/-
JUDGE
KJJ
