Karnataka High Court

Kashappa S/O Bhimanna Boner vs The Managing Director And Anr on 12 January, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                             1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 12TH DAY OF JANUARY 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                           AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

               MFA NO.202080/2018
                      C/W
          MFA CROB.No.200018/2019 (MV)

IN MFA NO.202080/2018:

BETWEEN:

The Managing Director
NEKRTC, Division-1, Kalaburagi
Through Division Controller
NEKRTC Yadgiri Division, Yadgiri
                                               ... Appellant

(By Sri Mahantesh Patil, Advocate)

AND:

1.     Kashappa S/o Bhimanna Boner
       Age: 42 years, Occ: Agriculture & Business
       R/o Ganganagar, Shahapur
       Tq: Shahapur, Dist: Yadgir

2.     Mahmad S/o Mahiboobsab Ingalgi
       Age: 29 years, Occ: KSRTC Driver
                               2


       R/o Anabi, Tq: Jewargi, Dist: Kalaburagi
       Now R/o Shahapur Depot at Shahapur
       Dist: Yadgir
                                            ... Respondents

(Sri Babu H. Metagudda, Advocate for R1;
 Notice to R2 is dispensed with)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
judgment and award in MVC No.82/2016 dated 04.04.2018
passed by the learned Senior Civil Judge and Addl. MACT,
Shahapur.


IN MFA CROB NO.200018/2019:

BETWEEN:

1.     Kashappa S/o Bhimanna Boner
       Age: 43 years
       Occ: Agriculture & Fruit Business
       R/o Ganga Nagar, Shahapur
       Tq: Shahapur, Dist: Yadgir-585 101
                                            ... Cross objector

(By Sri Babu H. Metagudda, Advocate)

AND:

1.     The Managing Director
       N.E.K.R.T.C, Gulbarga
       Division No.1
       Summons served through
       Divisional Controller
       N.E.K.R.T.C., Yadgir Division
       Yadgir - 585 101
                                 3


2.    Mohamad S/o Maheboobsab Ingalagi
      Age: 30 years, Occ: KSRTC Driver
      R/o Anabi, Tq: Jewargi
      Now R/o Shahapur Depot at Shahapur
      Dist: Yadgir - 585 101
                                       ... Respondents

(Sri Mahantesh Patil, Advocate for R1;
 Notice to R2 is dispensed with)

      This MFA Crob is filed under Order 41 Rule 22 of
CPC, praying to allow the cross objection and modify the
judgment and award dated 04.04.2018 passed in MVC
No.82/2016 by the learned Senior Civil Judge and Addl.
MACT at Shahapur and enhance the compensation amount
from Rs.9,36,485/- with 6% interest to Rs.76,00,000/-
with 12% interest.

      These appeal and cross objection coming on for
hearing on I.A. this day, S.R.Krishna Kumar J., delivered
the following:

                           JUDGMENT

Both these appeal and cross objection arise out of

the road traffic accident that occurred on 16.09.2015, on

account of which the claimant suffered injuries resulting

him seeking compensation before the Senior Civil Judge &

Addl. MACT, Shahapur (for short 'the Tribunal'). MFA

No.202080/2018 is preferred by the NEKRTC (for short

'Corporation'), questioning its liability to pay the

compensation as well as the quantum of compensation

awarded by the Tribunal, whereas MFA Crob

No.200018/2019 is preferred by the claimant, seeking

enhancement of compensation awarded by the Tribunal.

2. Heard the learned counsel for the appellant-

Corporation and the learned counsel for the cross objector/

claimant.

3. In addition to reiterating the various

contentions urged in the appeal memorandum and

referring to the material on record, learned counsel for the

Corporation submits that having regard to the fact that the

injured claimant did not possess a valid and effective

driving licence at the time of accident when his motorbike

dashed against the NEKRTC bus, the Tribunal has

committed an error in coming to the conclusion that the

Corporation was liable to pay the compensation. It is also

his submission that the quantum of compensation awarded

by the Tribunal is excessive and exorbitant and the same

deserves to be reduced by this Court.

4. Per contra, learned counsel for the claimant, in

addition to supporting the impugned judgment and award

as regards the liability of the Corporation to pay the

compensation also submits that insofar as the offending

vehicle is concerned, the claimant is merely a third party

and non-possessing of driving licence, in the absence of

any evidence to show that the said absence of driving

licence lead to negligence on the part of the claimant and

resulted in the accident, the said circumstance cannot be

made the basis to come to the conclusion that the claimant

is not entitled to compensation from the Corporation. It is

also submitted that in the light of the material on record,

which indicates that the left leg of the claimant was

amputated about the knee roll and the claimant has

suffered other grievous and serious injuries in the

accident, the quantum of compensation awarded by the

Tribunal without taking into account the Lok Adalath

guidelines as well as the loss of future prospects, loss of

marriage prospects and other heads etc., is meager and

inadequate and the same deserves to be enhanced by this

Court.

5. We have given our anxious consideration to

the rival submissions and perused the material on record.

6. Insofar as the contention urged on behalf of

the Corporation that the claimant is not entitled to any

compensation since he did not posses a valid and effective

driving licence to ride his motorcycle at the time of

accident is concerned, as rightly contended by the learned

counsel for the claimant, in the absence of any evidence to

establish that non-possessing of driving licence by the

claimant resulted in his negligence in riding the motorcycle

and thereby causing the accident in question, merely

because the claimant did not possess a licence coupled

with the fact that he is undisputedly a third party qua the

offending NEKRTC bus, the said circumstance cannot be

made the basis to come to the conclusion that the

Corporation is not liable to pay the compensation in favour

of the claimant. Accordingly, in the facts and

circumstances of the instant case, we do not find any

reason to interfere with the finding of fact recorded by the

Tribunal to the effect that the Corporation is liable to pay

the compensation in favour of the claimant.

7. Insofar as the quantum of compensation is

concerned, in the light of the decision of the Hon'ble Apex

Court in the case of Jagdish vs. Mohan & Ors. reported

in 2018 (4) SCC 571 and Pappu Deo Yadav vs. Naresh

Kumar & Ors. reported in AIR 2020 SC 4424 both cases

relating to payment of compensation on account of injuries

resulting in permanent disablement to the claimant, we are

of the considered opinion that the Tribunal has committed

an error in not awarding any sum towards 'future

prospects', particularly in the light of the unimpeached oral

and documentary evidence adduced by the claimant

including the medical records etc., with regard to the

grievous and serious nature of injuries sustained by the

claimant including the amputation of his left leg about the

knee roll. The income assessed by the Tribunal at

Rs.6,000/- per month is on the lower side. The disability

assessed at 64% and the multiplier of '15' adopted by the

Tribunal are just and proper. Accordingly, taking the

notional income of the claimant as Rs.8,000/- per month in

view of the Lok Adalath guidelines and adding 40%

towards future prospects, the total compensation payable

towards 'loss of future earning' would be Rs.12,90,240/-

(Rs.8,000 + Rs.3,200 i.e., 40% = Rs.11,200 x 12 x 15 x

64%) .

8. So also, as held by the Hon'ble Apex Court in

the case of Sanjay Kumar vs. Ashok Kumar and

another reported in 2014 Kant M.A.C. 350 (SC), the

claimant is entitled to the additional compensation towards

'pain and suffering' as well as 'loss of amenities' having

regard to the grievous and serious nature of injuries

sustained by the claimant in the accident.

9. Under these circumstances, the compensation

awarded by the Tribunal deserves to be modified as

hereunder:

1. Loss of future income Rs.12,90,240/-

 2.    Pain and suffering                      Rs.1,00,000/-
 3.    Loss of amenities                       Rs.1,00,000/-
 4.    Medical expenses                        Rs.1,29,285/-
 5.    Loss of earning during laid up          Rs.24,000/-
       period    for    three   months
       (Rs.8,000 x 3)
 6.    Food and nourishment                    Rs.20,000/-
 5.    Conveyance      and    attendant        Rs.38,000/-
       charges
       Total                                   Rs.17,01,525/-

      The    Tribunal      has    already   awarded   a    sum    of

Rs.9,36,485/-. Hence, after deducting the same, the

claimant would be entitled to an additional enhanced

compensation of Rs.7,65,040/- (Rs.17,01,525/- less

Rs.9,36,485/-) with interest at 6% per annum from the

date of petition till realization.

10. In view of the aforesaid discussion, we pass

the following:

ORDER

i) MFA No.202080/2018 filed by the Corporation

is hereby dismissed.

ii) MFA Crob No.200018/2019 filed by the

claimant is partly allowed.