Karnataka High Court
The Divisional Controller vs Ravi S/O. Guruputrappa Shadambi on 25 November, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 25 T H DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.21187/2012
C/W M.F.A. CR.OB.No.851/2012 (MV)
IN MFA No.21187/ 2012
BETWEEN:
THE DIVISIONAL CONTROLLER,
NWKRTC, HOSUR, HUBBALLI.
... APPELLANT
(BY SRI P.G.CHIK KANARAGUND, AD VOCATE FOR
SRI C.R.MENASIN KAI, ADVOCATE)
AND
1. SRI RAVI,
S/O GURUPUTRA PPA SHADAMBI,
AGE: 28 YEARS ,
OCC: KIRANI BUSINESS,
R/O SANTOS H NAGAR,
KELAGERI ROAD ,
DHARWAD.
2. BASAYYA S/O RUD RAYYA HIREMATH,
AGE: 34 YEARS , OCC: BUS DRIV ER,
R/O KANNUR, TQ: NAVALAGUND ,
DISTRICT: DHARW AD.
... RES PONDENTS
(BY SRI H.S .NAYAK, ADV OCATE FOR
SRI R.H.ANGADI , ADVOCATE FOR R1;
SRI RA GHAVENDRA A.PUROHIT , ADV OCATE FOR
SRI DINESH M.K ULKARNI, ADV OCAT E FOR R2)
2
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 02.12.2011 PA SSED IN MVC
NO.137/ 2009 ON THE FILE OF THE III ADDL. SENI OR CIVIL
JUDGE AND ADDL.M.A .C.T ., DHARWAD, AWARDING THE
COMPENSATION OF RS.7,17,500/- WITH INTEREST A T THE
RATE OF 6% PER ANNUM FROM THE DATE OF PETITION TILL
ITS REALIZATION .
IN MFA CR.OB.No .851/2012
BETWEEN
RAVI S/O GURUPUTRAPPA SHADAMBI ,
AGE: 28 YEARS , OCC: KIRANI BUSIN ESS,
R/O SANTOS H NAGAR, 3 R D CROSS,
KELAGERI ROAD , DHARWAD.
...CROSS OBJECTOR
(BY SRI H.S .NAYAK, ADV OCATE FOR
SRI R.H.ANGADI , ADVOCATE)
AND
1. THE DIVISIONAL CONTROLLER,
NWKRTC, HOSUR, HUBBALLI.
2. BASAYYA S/O RUD RAYYA HIREMATH,
AGE: 34 YEARS , OCC: BUS DRIV ER,
R/O KANNUR, TQ: NAVALAGUND ,
DISTRICT: DHARW AD.
... RES PONDENTS
(BY SRI P.G.CHIK KANARAGUND, AD VOCATE FOR
SRI C.R.MENASIN KAI, ADVOCATE F OR R1;
SRI RA GHAVENDRA A.PUROHIT , ADV OCATE FOR
SRI DINESH M.K ULKARNI, ADV OCAT E FOR R2)
THIS CROSS OBJECTION IN MIS C.FIRST A PPEAL
NO.21187/ 2012 IS FILED UNDER ORDER 41 RULE 22 C.P.C.,
AGAINST THE JUDGMENT AND AWARD DATED 02.12.2011
PASSED IN MVC NO.137/ 2009 ON THE FILE OF THE III
ADDL. SENI OR CIVIL JUD GE AND ADDL.M.A.C.T.,
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMEN T OF
COMPENSATION .
3
THIS APPEA L AND CROSS OBJ ECTION COMING ON FOR
HEARING ON I .A. THIS DAY, THE COURT , D ELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the judgment and award dated
02.12.2011 passed by III Addl.Senior Civil Judge and
Addl.M.A.C.T., Dharwad (for short, 'the Tribunal') in
MVC No.137/2009, this appeal and cross objection are
filed.
2. For the sake of convenience, parties will
hereinafter be referred to as per their respective ranks
before the tribunal. With consent of learned counsel for
parties the appeal and cross objection are taken up for
final disposal.
3. Brief facts as stated are that on 25.06.2008
at about 10.30 a.m. claimant-Ravi Shadambi was riding
motorcycle bearing registration No.KA-29/L-1587 on
Kundgol-Shirur road. Near Harkuni lake, a bus
belonging to NWKRTC bearing registration No.KA-25/F-
1610 came in a rash and negligent manner and dashed
against motorcycle. As a result of accident, Ravi
Shadambi sustained grievous injuries and was admitted
to KIMS Hospital, Hubballi. Thereafter he has taken
treatment to Victoria Hospital, Bengaluru and other
hospitals. Despite taking treatment, he sustained
permanent partial physical disability. Claiming
compensation for the same, he filed claim petition
under Section 166 of Motor Vehicles Act, 1988 (for
short, 'M.V.Act') against driver and owner of bus.
4. On service of notice, respondents filed
objections denying negligence in causing accident and
alleging contributory negligence on the part of claimant
himself. Age, occupation, income, disability sustained
and loss of earning capacity were also disputed apart
from opposing claim petition as being exhaustive.
5. Based on pleadings, Tribunal framed
following issues:
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4. CfðzÁgÀ g À Ä ¥À j ºÁgÀ P É Ì CºÀ ð gÉ Ã ? ºÁVzÀ Ý ° è , ¥À j ºÁgÀ z À
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5. K£À Ä DzÉ Ã ±À ?
6. In order to establish case, claimant
examined himself as PW1. He also examined
Dr.Suryakant Kalluraya as PW2. Exhibits P1 to P19
were marked. On behalf of respondents, driver of bus
was examined as RW1. No documents were marked.
7. On consideration, Tribunal answered issue
no.1 in the affirmative, issues no.2 and 3 in the
negative, issue no.4 partly in the affirmative and issue
no.5 by allowing claim petition in part and awarding
compensation of Rs.7,17,420/- rounded off to
Rs.7,17,500/- with interest at 6% per annum and
directed No.1 to pay the same. Aggrieved by the
award, NWKRTC is in appeal in MFA No.21187/2012.
Not satisfied with quantum of compensation and
seeking for enhancement, claimant has filed Cross
Objection No.851/2012.
8. Sri P.G.Chikkanaragund, Advocate appearing
for Sri C.R.Mensinkai, learned counsel for appellant-
NWKRTC submitted that though claimant himself was
rash and negligent in causing accident, tribunal
fastened entire negligence against bus driver, which
was unsustainable. On quantum, it was submitted that
though claimant sustained two fractures, tribunal
awarded excessive compensation of Rs.1,50,000/-
towards pain and suffering apart from Rs.50,000/-
towards mental agony. Even awarded a sum of
Rs.1,00,000/- towards medical expenses and
Rs.2,00,000/- towards marriage prospects was
excessive and called for reduction.
9. On the other hand, Sri H.S.Nayak, Advocate
appearing for Sri R.H.Angadi, learned counsel for
respondent no.1-claimant submitted that claimant was
a 25 year old graduate who was working in his grocery
shop and was a job aspirant, who sustained fracture of
pelvis, fracture of hip joint, middle and index fingers.
As a result of injury, claimant was required to pass
urine through a fistula and not through a fistula region.
Consequently, claimant was virtually rendered totally
disabled. It was submitted that claimant had taken
inpatient treatment for a period of four months and ten
days. Claimant had also lost marriage prospects and no
compensation was granted under said head. On the
ground of income and extent of disability, learned
counsel sought for enhancement of compensation.
10. From above submission, occurrence of
accident and claimant sustaining injuries therein is not
in dispute. Tribunal assessed compensation and after
holding that accident occurred due to rash and
negligent by its driver and awarded compensation
against NWKRTC. Insofar as finding on negligence as
well as quantum of compensation, NWKRTC is in
appeal. While claimant is seeking for enhancement of
compensation by filing cross objection. Therefore,
points arise for consideration are:
1. Whether finding of tribunal regarding
negligence is sustainable?
2. Whether compensation awarded by
tribunal calls for modification as sought
for?
11. In order to establish that the accident
occurred due to rash and negligent driving of bus,
claimant produced FIR, complaint, spot panchanama,
Motor Vehicle Inspector's report and charge sheet
marked as Exs.P1 to P4 and P6 respectively. Claimant
also deposed about manner in which accident occurred.
Claimant stated that accident occurred at a curve on
the road. Admittedly Ex.P6-charge sheet is filed by
police after due investigation against bus driver. A
perusal of spot panchanama-Ex.P3 reveals that
absolutely no particulars about width of road and
accident spot are mentioned. Ex.P4-Motor Vehicle
Inspector's report indicates damages to the rear right
side portion of body of bus. Contents of said
documents are not helpful in deciding issue of
negligence. Though corporation have examined bus
driver as RW1, he has not deposed about manner of
occurrence of accident. No negligence is alleged
against claimant. In view of above, finding of tribunal
regarding negligence by relying upon charge sheet
cannot be held to be either unjustified or without any
basis. There are no grounds to interfere with the same.
Point no.1 is answered in the affirmative.
12. Insofar as quantum of compensation,
claimant has admittedly sustained fracture of pelvic,
fracture of hip joint, middle and index fingers. In order
to establish his age, occupation and income, claimant
has produced his SSLC marks card and BA marks cards
as Ex.P15, P19 and P20 respectively. Marks cards
reveal that claimant had very good academic career.
He has also produced an intimation letter issued by
Railway Department calling him for physical test after
he had cleared written examinations. Though claimant
has stated that his earning was Rs.10,000/- per month,
no records are produced to substantiate the same. In
the absence of specific evidence, tribunal would be
justified in taking notional income. Notional income for
the year 2008 is Rs.4,250/- for an ordinary coolie, but
claimant was a first class graduate and was a job
aspirant. For the purposes of assessment of
compensation, claimant cannot be expected to
establish each and every aspect of claim to the hilt.
Some reasonable guesswork is inherent. Considering
the excellent academic qualification of claimant, it
would be reasonable for this Court to take his monthly
income at Rs.8,000/-. In order to establish the extent
of disability, claimant has produced wound certificate
as Ex.P5, prescriptions, treatment records and medical
bills. He has also examined Dr.Suryakant Kalluraya as
PW2. PW2 is an orthopedic surgeon, in his deposition
he has categorically stated that he examined claimant
for assessment of disability on 06.07.2011.
Observations made at the time of examination are
1. Pain in pelvis while walking, sitting and
changing position while sleeping.
2. Difficulty in squatting and sitting cross -
legged.
3. Unable to pass urine through pelvis. The
petitioner passes urine through
ureterocutaneous fistula.
4. I state that, on clinical examination-
1. Tenderness at pubic bones bilaterally
2. Pelvic compression is painful.
3. Both hip movements are painful.
4. Right lower is short by 2 cms.
5. Ureterocutaneous fistula seen at perineal
area.
6. Multiple operated scars over pelvis and
perineum.
7. x-ray of pelvis with both hips (x-ray
no.9450 dated 2011) shows mal-united
fractures of pubic revui bilateral proximal
nuigration of right hemi pelvis.
Based on above observation, he assessed physical
disability of 25% to affected part. Nothing worthwhile
is elicited from PW2 during cross-examination except
the fact that doctor had not issued any disability
certificate to claimant and that he was not an
urologist. Firstly PW2 has made a categorical
observation that claimant was unable to pass urine
through pelvis, but was passing urine through
ureterocutaneous fistula and does not have control
over same. In view of said disability, claimant would
not be able to do job as a normal person. He would be
required to either use adult diapers or carry a drain
pouch all the while i.e. virtually organize his life
around a washroom. Infact, PW1 has stated that he
requires assistance even to attend nature's call. Under
such circumstances, it would be reasonable to consider
loss of earning capacity of 20%. Multiplier applicable to
age of claimant at 25 years would be '18'. Thus, future
loss of income would be Rs.8,000 x 20% x 12 x 18 =
Rs.3,45,600/- as against Rs.69,120/- awarded by
tribunal.
13. Considering number of fractures and nature
of injuries sustained by claimant, he would undergo
pain and suffering throughout his life. Though award of
Rs.50,000/- towards mental agony separately would
not be justified. However award of Rs.1,50,000/-
towards pain and suffering in the facts and
circumstances of this case would also be inadequate. If
award towards pain and suffering and mental agony is
taken as Rs.2,00,000/-, it would be just and proper.
Therefore, no interference is called for insofar as
award towards pain and suffering and Rs.50,000/-
towards mental agony. Tribunal has awarded
compensation of Rs.83,550/- towards complete
reimbursement of amount spent towards medical
expenses. Claimant has produced prescriptions and
medical bills to substantiate the same. There is no
scope either for reduction or for enhancement. Tribunal
has awarded a sum of Rs.1,00,000/- towards future
medical expenses. PW1 and PW2 have stated that
claimant is required to pass urine through fistula;
tribunal has stated that which would not provide
control over urine. Due to which claimant would require
to use adult diapers or drain bag. Therefore, award of
Rs.1,00,000/- towards future medical expenses cannot
be said to be either unjustified or excessive. Therefore,
no interference is called for.
14. Though claimant has taken prolonged
treatment spread over more than two years, tribunal
awarded a sum of Rs.20,000/- towards loss of income
during period of treatment, Rs.14,000/- towards
attendant and Rs.750/- for conveyance. It has also
awarded a further sum of Rs.20,000/- towards loss of
income during period of recuperation. Considering
duration of treatment and place of treatment namely at
KIMS Hospital, Hubballi and Victoria Hospital,
Bengaluru, claimant awarded a lump sum of
Rs.1,00,000/- towards loss of income during period of
treatment and recuperation and for food, nourishment,
conveyance, attendant and other incidental charges as
against Rs.64,750/- awarded by tribunal. It has also
awarded Rs.10,000/- towards nutritious food. Due to
injuries sustained and nature of disability, claimant has
lost marriage prospects and lost enjoyment of marital
life. Therefore, award of Rs.2,00,000/- towards loss of
amenities, loss of marital life etc., cannot be said to be
either unjustified or excessive. Same is sustained.
Thus, claimant would be entitled to a total
compensation of Rs.10,29,150/- as against
Rs.7,17,500/-. Point no.2 is answered accordingly.
15. In the result, I pass the following:
ORDER
i. MFA No.21187/2012 is dismissed.
Amount in deposit is ordered to be
transmitted to the Tribunal.
ii. MFA Cross Objection No.851/2012 is
allowed in part. The compensation of
Rs.10,29,150/- is enhanced as against
Rs.7,17,500/- awarded by the
Tribunal. The enhanced compensation
shall carry interest at the rate of 6%
per annum.
iii. The directions issued by Tribunal
regarding proportionate of deposit and
release shall apply to the enhanced
compensation also.
iv. Insurer is directed to deposit
enhanced compensation within three
months from date of receipt of
certified copy of this order.
Sd/-
JUDGE
CLK
