Karnataka High Court

Jagadish S/O Girish Gouda vs N.W.K.S.R.T.C on 2 March, 2022

Bench: S.Sunil Dutt Yadav, K.S.Hemalekha

                               1


             IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

         DATED THIS THE 2ND DAY OF MARCH, 2022

                           PRESENT
       THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                             AND
        THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                M.F.A. No. 101614/2016 (MV)
BETWEEN:

JAGADISH S/O GIRISH GOUDA,
AGED 27 YEARS, OCC: AGRICULTURIST/DRIVER,
R/O: KATLEHALLA, PO: TARGOD, TQ: SIRSI,
DIST. UTTAR KANNADA.
                                                -     APPELLANT
(BY SRI VISHWANATH HEGDE, ADVOCATE)

AND:

1.     N.W.K.S.R.T.C. REP. BY
       THE MANAGING DIRECTOR,
       BELAGAVI DIVISION, BELAGAVI.

2.     KEMPANNA S/O YALLAPPA SANADI,
       AGED MAJOR, OCC-DRIVER,
       KHANAPUR, DIST. BELAGAVI.
                                            -       RESPONDENTS
(BY SRI M.K. SOUDAGAR, ADVOCATE FOR R1,
SRI C.R. CHIKKAMATH, ADVOCATE FOR R2)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWRD DATED
28.01.2016 PASSED IN M.V.C. NO. 109/2014 BY THE LEARNED
SENIOR CIVI JUDGE AND MEMBER, AMACT, SIRSI & ETC.
      THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
K.S.HEMALEKHA J., DELIVERED THE FOLLOWING:
                                  2


                          JUDGMENT

The present appeal is preferred by the claimants assailing

the judgment and award dated 28.01.2016 passed in M.V.C. No.

109/2014 by the learned Senior Civil Judge & Addl. MACT, Sirsi

(for short 'Tribunal').

2. Claim petition was filed under Section 166 of M.V. Act

claiming compensation to the tune of `6,00,000/- together with

interest at 18% p.a. The claimant who injured in a road traffic

accident that occurred on 16.01.2014 when the injured was

riding his motorcycle bearing reg. no. KA-31-5-4234 at which

time the driver of the KSRTC bus came in a rash and negligent

manner and dashed against the petitioner-claimant due to which

he suffered grievous injuries and underwent surgery and

treatment for some period. It was averred that he was working

as agriculturist and driver earning `7,000/- per month and due

to the impact of the injuries he has been permanently disabled.

3. In pursuance of the notice issued by the Tribunal, the

respondent no.2 remained absent. Respondent No.1-

Corporation appeared through its counsel and filed objections.

4. The respondent No.1 has denied the occurrence of the

accident and had contended that the accident did not occur due

to the rash and negligent act of the driver of the bus but it was

attributable to the negligence on the part of the petitioner-

claimant and as such would absolve liability of the Corporation.

5. The Tribunal on the basis of pleadings of the parties,

framed the following issues.

1. Whether the petitioner proves that he sustained bodily injuries in a road traffic accident that occurred on 16.01.2014 at about 02.45 p.m. on Sirsi-Yellapur road, near Subraykodlu Tq. Sirsi, due to rash and negligent driving of KSRTC bus bearing Reg. No. KA-42-F-1399 by its driver?

2. Whether the petitioner is entitled for compensation? If so at what quantum and from whom?

3. What Order or Award?

6. In order to substantiate the contention, petitioner-claimant

examined himself as PW1 and one witness as PW2 and got

marked 16 documents as per Exs.P.1 to P.16. On the other

hand, respondent No.1-Corporation examined its official as RW1

but did not produce any document.

7. The Tribunal on the basis of the pleadings, evidence and

material on record held that the accident occurred due to the

rash and negligent driving of the driver of the bus bearing No.

KA-42-F-1399 resulting in the claimant suffering grievous

injuries. Taking into consideration the materials available, the

Tribunal awarded compensation of `1,93,700/- with interest at

6% p.a. from the date of petition till payment.

8. Aggrieved by the quantum of compensation awarded by

the Tribunal, the claimant is in appeal seeking for enhancement.

9. We have heard learned counsel for the appellant and the

learned counsel for respondent No.1-Corporation.

10. Learned counsel Sri Vishwanath Hegde appearing for the

appellant-claimant would contend that the Tribunal has taken

notional income of the claimant at `5,000/- per month without

considering the fact that the claimant was earning `7,000/- per

month by doing agriculture work and further, award of the

Tribunal under various heads is on the lower side and sought to

reassess the compensation amount.

11. Per contra, Sri M.K. Soudagar, learned counsel appearing

for the respondent No.1-Corporation would contend that the

award of compensation awarded by the Tribunal is just and fair

and the same does not call for any interference by this Court.

12. Having heard learned counsel for the parties and on

perusal of the records, the only point that arises for our

consideration is:

Whether the judgment and award passed by the Tribunal warrants interference by this Court in so far as quantum is concerned?

13. The claimant was working as an driver and also doing

agriculture work and was earning `7,000/- per month as could

be seen from the pleadings and evidence of PW1, and there

being no rebuttal evidence by the Corporation, we are of the

considered view that income of the claimant could be taken as

`7,000/- per month as against `5,000/- per month taken by the

Tribunal. Ex.P.6-disability certificate issued by PW2 that

claimant had suffered united fracture L/E tibia with united

fracture medial malleolus with united fracture L/E fibula of LT

Leg with implants in situ and the Doctor has opined that claimant

has suffered permanent disability to the tune of 15% to the left

lower limb. Though the counsel for appellant would contend that

the physical disability of the injured should be taken at 15% to

whole body but looking into Ex.P.6 and the evidence of PW2

clearly establishes the fact that the fracture has been united.

Thus, we are of the considered view that the whole body

disability is required to be taken at 6% as held by the Tribunal.

The appropriate multiplier to be applied is '18' considering age of

the injured. Thus, the claimant would be entitled to `90,720/-

(`7,000/- x 12 x 18 x 6%) as against `64,800/- towards loss of

future earning capacity.

14. For the foregoing reasons, we are of the considered view

that the claimant-appellant would be entitled for reassessment of

compensation under various heads as under:

  Sl.    Particulars                               Amount (`)
  No.
  1.     Towards pain and suffering                    35,000.00
  2.     Towards Medical expenses                      48,900.00
  3.     Towards Food, diet and nourishment             5,000.00
  4.     Future medical expenses                       20,000.00
  5.     Conveyance charges                             5,000.00
  6.     Loss of amenities                             30,000.00
  7.     Loss of earning during treatment period       21,000.00
         (`7,000/- x 3)
  8.     Loss of future earning                         90,720.00
         Total                                        2,45,620.00

Thus, the claimant-appellant would be entitled to enhanced

compensation of `61,920/- (total compensation of `2,45,620/-

as against `1,93,700/- awarded by the Tribunal) with interest at

6% p.a. from the date of petition till payment. Accordingly, we

answer point for consideration in the affirmative.

15. For the foregoing reasons, we pass the following order.

ORDER

(1) The appeal filed by the appellant-claimant is allowed in

part.

(2) The judgment and award dated 28.01.2016 passed in

M.V.C. No. 109/2014 by the learned Senior Civil Judge & Addl.

MACT, Sirsi is modified to the extent the claimant-appellant