Andhra Pradesh State Road ... vs Sri.N. Muniswamy
2022 Latest Caselaw 2071 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 09TH DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                MFA NO.8354/2011(MV)
                        C/W
                MFA NO.9213/2011(MV)

MFA 8354/2011:

BETWEEN:

ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION
CENTRAL OFFICE,
MUSHIRABAD, HYDERABAD,
ANDHRA PRADESH
REP BY ITS MANAGING DIRECTOR
                                           ... APPELLANT
(BY SRI.D VIJAYAKUMAR, ADVOCATE)

AND:

1.     SRI.N. MUNISWAMY
       S/O SRI.N.RAJASHEKHAR
       AGED ABOUT 33 YEARS,
       R/O NO.27, DASAPPA COMPOUND,
       2ND MAIN ROAD, DEVASANDRA,
       K.R.PURAM,
       BANGALORE-560036
2.     THE MANAGER
       THE ORIENTAL INSURANCE CO LTD
       BRANCH OFFICE, AT CHITTOOR
       ANDHRA PRADESH
                                       ... RESPONDENTS
(BY SRI. S.SRISHAILA, ADVOCATE FOR R2;
    SRI. N. GOPAL KRISHNA, ADVOCATE FOR R1)
                           2




      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 20.06.2011 PASSED IN
MVC NO.2101/2008 ON THE FILE OF THE XIII ADDITIONAL
SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER
MACT, BANGALORE, AWARDING A COMPENSATION OF
Rs.2,51,840/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT IN THE TRIBUNAL.

MFA 9213/2011
BETWEEN:

SRI N MUNISWAMY
S/O.N RAJASHEKAR
AGED ABOUT 33 YEARS
R/AT.NO.27, DASAPPA COMPOUND
2ND MAIN ROAD,
DEVASANDRA, K R PURAM,
BANGALORE 36
                                        ... APPELLANT
(BY SRI. N GOPALKRISHNA, ADVOCATE)


AND:

THE MANAGING DIRECTOR
ANDHRA PRADESH ROAD
TRANSPORT CORPORATIO
MUSHIRABAD,
HYDERABAD,
ANDHRA PRADESH
                                      ... RESPONDENT

(BY SRI. D. VIJAYAKUMAR, ADVOCATE)

     THIS MFA IS FILED 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.06.2011 PASSED IN MVC
NO.2101/2008 ON THE FILE OF XIII ADDITIONAL SMALL
CAUSE JUDGE AND MEMBER MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
                                    3




    THESE MFAs COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

These appeals are at the instance of claimant and

APSRTC calling in question the correctness of the judgment

and award dated 20.06.2011 passed in MVC No.2101/2008 by

the Motor Accident Claims Tribunal, Court of Small Causes,

Bangalore.

2. Claim petition was filed on the allegation that

claimant - N.Muniswamy was riding motorcycle bearing

registration No.AP-03-AA-TR-8721 near Mittepalli Village,

Bangarupalyam Mandal, on NH4, Andhra Pradesh, on

08.07.2007 at about 11.15 a.m. and an APSRTC bus bearing

registration No.AP-21-Z-1630 came from opposite direction in

a rash and negligent manner and dashed against his

motorcycle resulting in grievous injuries to him.

3. Claim petition was contested by the appellant-

APSRTC by filing detailed statement of objections.

4. During trial, claimant examined himself as PW1

and he examined one orthopedic surgeon as PW2. Exs.P-1 to

P-6 were marked. Appellant - APSRTC examined its driver as

RW1. No documents were marked for APSRTC.

5. After hearing the learned counsel on both sides

and perusing the records, learned Tribunal allowed the claim

petition in part and awarded a compensation of Rs.2,51,840/-

with interest thereon at 6% p.a.

6. Appellant - APSRTC has urged in support of this

appeal that judgment and award is erroneous on two grounds,

firstly, it is contended that accident has taken place in

Chittoor District of Andhra Pradesh and claimant has filed the

claim petition in Bangalore. It is secondly contended that

learned Tribunal failed to notice that accident had taken place

on account of negligence of claimant himself and therefore, he

is not entitled to claim any compensation. It is therefore

submitted that appeal is liable to be allowed and claim

petition should be dismissed.

7. In support of his claim seeking compensation, it is

urged on behalf of claimant that learned Tribunal has erred on

several aspects. In support of the same, it is submitted that

learned Tribunal ought to have considered the loss of earning

capacity at 50% by following the entry at Sl.No.23 of Part-II

of Schedule I of the Employees Compensation Act, 1923 read

with Entry at Sl.No.5 - Disability in non-fatal accidents of

Second Schedule of Motor Vehicle Act, 1988 (for short 'the

Act') and loss of earning capacity should have been

recomputed on the said basis. It is also submitted that for

the laid up period learned Tribunal ought to have considered

the loss of earning for a period of 6 months in view of entry at

Sl.No.5 of Second Schedule. He therefore submitted that

compensation awarded is required to be suitably enhanced

and appeal is required to be allowed to the said extent.

8. I have given my anxious consideration to the rival

contentions made on both sides and I have carefully perused

the records.

9. This is a claim petition filed under Section 163A of

the Act and therefore, question of negligence does not arise at

all and only aspect that is required to be proved by the

claimant is the accident resulting in injuries has occurred on

account use of motor vehicle. Claimant has deposed as PW1

and has spoken about it. Ex.P-1 is FIR and Ex.P-2 is charge

sheet. Charge sheet filed against the claimant shows that the

offending bus belonging to APSRTC was involved in the

accident. Therefore, said contention put forth on behalf of

APSRTC is rejected.

10. As discussed by the learned Tribunal at para 12 of

the impugned judgment and award, claimant had produced

rent agreement to show that he was resident of Bangalore

and in that view of the matter, he has filed claim petition

before Bangalore. Learned Tribunal on consideration of same,

has held that it has jurisdiction to adjudicate the claim

proceedings. There is no good ground made out to disagree

with the said contention and accordingly, contention put forth

on behalf of APSRTC regarding territorial jurisdiction is held

against it. Hence, there is no merit in the appeal and it is

liable to be dismissed.

11. As per the wound certificate - Ex.P-6, claimant

was aged 30 years at the time of accident. Under Second

Schedule, the multiplier applicable is '17'. Learned Tribunal

has taken the income of claimant at Rs.3,200/- per month

and I have no reasons to disagree with the same.

12. Claimant is entitled to compensation under

Second Schedule of the Act for Disability in non fatal

accidents. Sl.No.5 of the Second Schedule of the Act reads as

follows:

"5. Disability in non-fatal accidents: The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:-

a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

13. As per the above, compensation for the grant of

disability can be assessed by referring to Schedule-I under

Employees Compensation Act, 1923. As per Ex.P-6-wound

certificate, claimant had undergone amputation through mid-

foot carried out, wounds approximated and A.K.Slab and

bandage applied. At Sl.No.23, Pat-II of Schedule I of

Employees Compensation Act, 1923, this injury is referred.

Sl.No.23 of Part-II of Schedule I reads as follows:

"23. Amputation through one foot proximal to the metatarso-phalangeal joint."

14. The percentage of loss of earning capacity fixed to

the said injury is 50%. Therefore, loss of earning capacity for

the disability suffered by the claimant in the non fatal accident

resulting in amputation through mid foot is 50% of his

income. Accordingly, compensation is required to be

computed as follows:

Rs.3,200/- x 12 x 17 x 50% = Rs.3,26,400/-

15. Insofar as, loss of income during laid up period is

concerned, same is also dealt with at Sl.No.5 of Second

Schedule of the Act, which reads as follows:

"5. Disability in non-fatal accidents: The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:-

Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:-

c) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

d) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923."

16. The claimant has suffered following injuries:

"Injuries:- 1. Laceration of 15 X 4 cm over ® Knee anterior aspect, bone deep, with condylar fracture femur, laterally displaced patella, and quadriupstear medially.

2. Facture of both bones ® leg middle and distal 1/3 Junction.

3. Crush injury ® mid foot with fractures of cuneiform, cuboid, and metatarsals. Dorsal tendons found out, and mid foot hanging with skin. No toe movements noted. No nail bed filling and no sensations (capillary) foot beyond the injury nonviable."

17. Taking into consideration the nature of fractures

suffered and injuries suffered, he would not be in a position to

do any work atleast for a period of 6 months. Therefore,

compensation for loss of income during laid up period has to

be awarded as Rs.3,200 x 6 = Rs.19,200/-.

18. Under the head 'pain and suffering', a sum of

Rs.5,000/- is awarded. Towards medical expenses a sum of

Rs.15,000/- is awarded.

Thus, in all claimant is entitled to:

Sl.No.                 Particulars                         Amount
                                                            (Rs.)
1        Loss of earning capacity                         3,26,400-00
2        Loss of income during laid up period              19,200-00
3        Pain and suffering                                 5,000-00
4        Medical expenses                                  15,000-00
                          Total                       3,45,600-00

19. The total compensation claimant is entitled to is

Rs.3,65,600/-. Learned Tribunal has already awarded a

compensation of Rs.2,51,840/-. Therefore, enhanced

compensation is Rs.1,13,760/- and said enhanced

compensation shall carry interest @ 6% p.a. from the date of

petition till date of deposit. Hence, the following:

JUDGMENT

(1) MFA No.8354/2011 filed by APSRTC is

dismissed.

(2) MFA No.9213/2011 filed by claimant is

allowed partly.

(3) Insurance company shall deposit the

enhanced compensation with interest

thereon at 6% p.a. from the date of

petition till date of deposit within 8

weeks from today.

(4) Amount in deposit, if any, shall be

transmitted to the learned Tribunal

along with records.

Sd/-

JUDGE

DR