Karnataka High Court

Pikani Bai vs The Managing Director on 22 March, 2022

Bench: Pradeep Singh Yerur

                          1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR

             M.F.A. NO. 182 OF 2019 (MV)
BETWEEN:

PIKANI BAI
W/O SHIUVA NAIKA
NOW AGED ABOUT 57 YEARS
R/O ADIVALA FARM VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT - 577 599.
                                 ... APPELLANT
(BY SRI N R RANGE GOWDA, ADVOCATE )

AND

1.    THE MANAGING DIRECTOR
      KSRTC R/O SHANTI NAGAR
      BANGALORE - 560 027.

2.    THE CHAIRMAN, INTERNAL INSURANCE FUND
      K.S.R.T.C R/O DOUBLE ROAD
      SHANTHI NAGAR, BANGALORE - 560 027.

3.    DIVISIONAL CONTROLLER, KSRTC
      VIJAYAPURA DIVISION
      INDI DEPOT.
                                     ... RESPONDENTS

(BY SRI. B L SANJEEV, ADVOCATE)

       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 21.04.2018 PASSED
IN MVC NO.941/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE & ADDITIONAL MACT, HIRIYUR PARTLY ALLOWING
                                2




THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


      THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-


                        JUDGMENT

The claimant has filed this appeal seeking

enhancement of compensation being aggrieved by the

impugned Judgment and Award dated 21.04.2018 in MVC

No.941/2016 passed by the Senior Civil Judge & JMFC,

Hiriyur (hereinafter referred to as 'Tribunal'). This appeal is

founded on premises of inadequacy of compensation.

2. On 24.06.2015 at 6.30 p.m., while the

claimant was walking on the left side of the road, in front

of Muthuswamy Gowner's House at Adhivala farm on NH-4

road, at that time, the KSRTC bus bearing registration

No.KA-28-F-2024 came in a high speed in a rash and

negligent manner so as to endanger human life and safety

dashed against the claimant. As a result of which, the

claimant fell down and sustained injuries on her face, leg

and chest. Immediately, she was shifted to Government

hospital, Hiriyur and thereafter she was referred to District

Hospital, Chitradurga, It is stated that claimant was

inpatient for almost a month from 24.06.2015 to

24.07.2015. It is further stated that claimant sustained

fractures of 7th and 8th ribs of the left side of chest and was

advised to take bed rest for a period of 6 months. Due to

accident, the claimant had to suffer finance expenditure,

which has been spent for her treatment and towards other

expenditures. Accordingly, she filed claim petition seeking

compensation from the respondents.

3. On notice being issued, respondents filed

statement of objections and pleaded that the bus driver

was not negligent in occurrence of the accident and the

accident was caused due to negligence of the claimant.

Inter alia denied all other contentions made by the

claimant. On the basis of the pleadings, the Tribunal has

framed the following issues for consideration :-

"1. Whether the petitioner proves that, she sustained injuries due to the actionable negligence of the driver of K.S.R.T.C bus bearing No.KA-28-F-2024 who drove it in a rash and negligent manner with high speed, in front of Muthuswamy Gowner House on NH-4 road on 24.06.2015 at 6.30 p.m.?

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

3. What order or decree?"

4. In order to substantiate her case, the claimant

examined herself as PW.1 and got marked as Exs.P.1 to

P.7. On the other hand, respondents examined one witness

as RW.1. However, did not produce any documents in

support of their case.

5. On the basis of the pleadings, material

evidence both oral and documentary, the Tribunal

awarded compensation of Rs.45,000/- along with 7.5%

interest per annum from the date of the filing of petition till

the date of realization. Being dissatisfied with the meager

amount of compensation awarded by the Tribunal, the

appellant/claimant is before this Court seeking

enhancement of compensation.

6. It is the contention of the learned counsel

appearing for the claimant that the Tribunal has erred in

awarding meager compensation and has not taken into

consideration the material evidence both oral and

documentary and has thereby committed an error causing

miscarriage of justice to the claimant. He further contends

that the Tribunal has awarded compensation, which is not

commensurate with the injuries sustained by the claimant

and on the other heads also, the Tribunal has awarded

very less compensation, which requires enhancement of

compensation at the hands of this Court.

7. It is further contended by the learned counsel

for the appellant/claimant that the Tribunal has failed to

award any compensation for 'Loss of income during the

laid up period' without taking into consideration the

claimant having suffered fractures to left rib. On these

grounds, learned counsel seeks to allow the appeal and

enhance the compensation.

8. Per contra, learned counsel Sri B L Sanjeev

appearing for respondent/insurer vehemently contends

that the compensation awarded by the Tribunal is just and

reasonable and does not warrant interference. He further

contends that claimant has not produced any material

evidence regarding proof of income. Accordingly, the

Tribunal has taken into consideration these material facts

while awarding compensation and has awarded just and

reasonable compensation, which does not call for

interference by this Court.

9. Learned counsel further contends that the

pleadings of the claimant is that she was inpatient for a

period of 30 days whereas Ex.P7 - discharge card which is

produced differs from the pleadings and however, Ex.P.7 is

not authentic document as there is no seal and signature

of issuing authority. He further contends that judgment

and award passed by the Tribunal is just and reasonable

and the same is commensurate to the injuries sustained by

the claimant. Hence, appeal deserves to be dismissed and

award of the Tribunal to be upheld.

10. Having heard the learned counsel for the

appellant/claimant and learned counsel for

respondents/insurer, the point that arise for consideration

is:

"Whether the Tribunal has awarded just and reasonable compensation in the facts and circumstances of the present case, commensurate to the injuries sustained by the claimant ? "

11. It is not in dispute that the claimant sustained

injuries due to the accident caused by the driver of the

KSRTC Bus bearing registration No.KA-28-F-2024, which

came in rash and negligent manner and dashed against

the claimant. Though this fact is disputed by the insurer/

respondents, the same is not corroborated in the evidence

let by the respondents or in the cross-examination of

PW.1. To substantiate this, the claimant has produced

documents at Exs.P.1 to 6, which are all police records.

These police records are not in dispute neither is it

challenged by the respondents or the driver of the KSRTC

bus before the concerned jurisdictional Court. The

respondents have not produced any iota of documents or

evidence to prove that the records produced by the police

are false and that there is a challenge made against charge

sheet, which has been laid by the investigating Agency. In

view of there being no challenge to the criminal

prosecution as against the driver of the KSRTC bus and

there being no contra materials to disprove the case put

forth by the claimant, it can be safely concluded that the

driver of the KSRTC bus against whom the charge sheet is

laid is responsible for rash and negligent driving leading to

the accident, wherein the claimant sustained injuries.

12. Admittedly, claimant has not produced any

materials to show proof of her income. It is pleaded that

she was working as coolie and accordingly, it can be

presumed that she is earning a sum of Rs.8,000/- per

month. As per medical records produced by the claimant

and the wound certificate, it would clearly reveal that the

claimant has suffered four injuries out of which one is

fractures of 7th and 8th rib of left side of the chest. As per

the wound certificate, injury No.4 is grievous in nature.

The Tribunal has awarded global compensation of

Rs.25,000/- with regard to the injuries suffered by the

claimant. I am in agreement with the learned counsel for

the claimant that the compensation awarded is global

compensation to the injuries is on the lower side and the

same is not correct. Hence, requires enhancement for the

reasons that the appellant/claimant was working as a

coolie.

13. In a case on hand when there is no proof of

income produced by the claimant, the Court will have to do

guess work and to assess the same a standard procedure

of legal services authority prescribed notional income chart

for consideration of the income for computation of

compensation. The accident having occurred in the year

2015, Rs.9,000/- is taken as notional income for the

relevant year. Accordingly, Rs.9,000/- is taken as income

for the claimant as she was a coolie. In the present case

on hand, the claimant has not produced any disability

certificate neither has examined treated doctor to show the

disability and it is also not the case the claimant has

suffered disability to her body, which would affect her

future prospects of earning. Therefore, the compensation

requires to be awarded under other heads. The claimant

was admitted as inpatient for a period of almost 30 days in

District Hospital, Chitradurga. However, learned counsel

appearing for the insurance company contends that since

the document produced at Ex.P7 is not an authenticated

document and as there is no signature or seal of the

concerned authority, the same cannot be considered

now as no objection was raised by the claimant

while marking the said document before the tribunal.

Hence, the same will have to be taken and accepted on its

evidentiary value.

14. In the case of motor accident claims, where the

claimant/injured seeking compensation for the injuries

sustained, what is required to be seen is preponderance of

probabilities and not the proof beyond reasonable doubt as

it is contemplated in criminal jurisprudence. Therefore,

accepting the discharge summary at Ex.P.7 one month is

taken as inpatient period, the claimant is entitled to

attendant, food and nourishment, conveyance and

transport charges at Rs.30,000/-, towards 'Loss of income

for the laid up period, the claimant would be entitled to

Rs.27,000/-( she was admitted in the hospital for one

month and since she has suffered fractures of rib and

working as a coolie, she would not recover immediately to

get back to work and hence she would require at least

three months rest.

Rs.9,000/-x3=Rs.27,000/-.

15. Towards 'pain and sufferings' Tribunal has awarded

Rs.10,000/-. I find that it is on lower side. Hence, I deem

it necessary to enhance the same at Rs.25,000/- as

against Rs.10,000/- awarded by the Tribunal. The Tribunal

has not awarded any amount towards 'Loss of amenities'.

Hence, I deem it appropriate to award Rs.25,000/-

towards 'Loss of amenities' to the claimant. Hence, the

appellant/claimant is entitled for enhanced compensation

of Rs.1,07,000/- as follows:

         Heads           By Tribunal       By this Court
    Pain and Suffering   Rs.10,000/-       Rs.25,000/-
    Attendant,    food Rs.10,000/-         Rs.30,000/-
    and    nourishment
    and     conveyance
    and transport
    Medical expenses   Rs.25,000/-         -
    Loss of amenities    -                 Rs.25,000/-
    Loss   of    income -                  Rs.27,000/-
    during    laid   up
    period
    Total               Rs.45,000/-        Rs.1,07,000/-

[

16. Thus, the claimants are entitled for enhanced

compensation of Rs.1,07,000/- as against Rs.45,000/-

awarded by the Tribunal together with interest at 6% per

annum and therefore the point raised above is answered

accordingly. Hence, the following order is passed

:ORDER:

Appeal is allowed in part.

The claimant is entitled for enhanced

compensation of Rs.1,07,000/-.

All other terms and conditions stipulated by the

Tribunal is stand intact.

The respondents/Insurer shall make enhanced