The Managing Director Nekrtc vs Basavaraj S/O Kallappa Barigida
2022 Latest Caselaw 7418 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 25TH DAY OF MAY 2022

                            BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                  MFA No.31489/2013
                          C/W
                MFA No.201741/2014 (MV)

In MFA No.31489/2013:

BETWEEN:

The Managing Director,
NEKRTC, Opp: KBN Hospital,
Main Road, Gulbarga,
By its Divisional Controller,
M.S.K. Mill Road, Gulbarga
(Bidar Division, Bidar),
Now Represented by its
Chief Law Officer,
NEKRTC, Gulbarga.
                                           ... Appellant
(By Sri. Santosh Biradar, Advocate)

AND:

Basavaraj S/o Kallappa Barigida,
Aged about 25 years,
Occ: Agriculture-cum-Coolie,
Now Nil, R/o Atnoor,
Tq. Afzalpur, Dist. Gulbarga.
                                         ... Respondent
(By Sri. Santosh R. Belamgi, Advocate)
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       This MFA is filed under Section 173(1) of the Motor
Vehicles Act, 1988, praying to allow the appeal, set aside the
judgment and award dated 07.01.2013 passed by the Court of
Principal Senior Civil Judge and MACT at Gulbarga, in MVC
No.465/2012 and consequently dismissed the claim petition.

In MFA No.201741/2014:

BETWEEN:

Basavaraj S/o Kallappa Bargida,
Age: 26 Years, Occ: Agriculture-cum-Coolie,
R/o Atnoor, Taluka Afzalpur,
District Gulbarga.
                                                   ... Appellant

(By Sri. Santosh R. Belamgi, Advocate)

AND:

The Managing Director, N.E.K.R.T.C.,
Opposite to K.B.N. Hospital,
Main Road, Gulbarga,
By its divisional Controller,
M.S.K. Mill Road, Gulbarga
(Bidar Division, Bidar).
                                                 ... Respondent
(By Sri. Santosh Biradar, Advocate)

       This MFA is filed under Section 173(1) of the Motor
Vehicles Act, 1988, praying to allow the appeal and modify the
judgment and award passed by the Prl. Senior Civil Judge &
MACT, Gulbarga, in MVC No.465/2012 dated 07.01.2013 by
enhancing the compensation as claimed in the claim petition.


       These appeals coming on for final hearing this day, the
Court delivered the following:
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                               JUDGMENT

These two appeals are filed under Section 173(1) of

the Motor Vehicles Act, 1988, challenging the judgment

and award dated 07.01.2013 passed in MVC No.465/2012,

whereby the learned Principal Senior Civil Judge and

MACT, Gulbarga (hereinafter referred to as 'the Tribunal'

for brevity) has awarded compensation of Rs.2,82,400/-

with interest at the rate of 6% per annum from the date of

petition till its realisation to the claimant. MFA

No.31489/2013 is filed by the Corporation challenging the

quantum and contributory negligence, while MFA

No.201741/2014 is filed for enhancement of compensation

by the claimant.

2. As both these appeals are arising out of the

same judgment and award pertaining to the same

accident, they are heard together and common order is

being passed.

3. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Tribunal.

4. The brief facts leading to the case are that, on

09.02.2012 at about 1.00 p.m., the claimant was

proceeding as a pillion rider on motorcycle bearing Reg.

No.KA-39/J-2483 from Kumasi to Atnoor village and near

water tank at Matholi village road, the driver of the KSRTC

bus bearing Reg. No.KA-38/F-650 came from opposite

direction in a rash and negligent manner endangering the

human life and dashed to the motorcycle bearing Reg.

No.KA-39/J-2483 resulting in the accident. Due to the said

accident, the claimant, who was travelling as a pillion rider

on motorcycle has sustained multiple grievous injuries and

initially he was shifted to Government Hospital, Afzalpur

and thereafter to Basaveshwar Hospital, Gulbarga and he

was inpatient from 09.02.2012 to 27.02.2012 and incurred

huge medical expenses. It is further contended that the

accident is because of sole actionable negligence on the

part of the driver of the KSRTC bus and hence, he filed a

claim petition claiming compensation of Rs.5,00,000/- with

interest at the rate of 12% p.a.

5. The respondent-Corporation has appeared

through its counsel and filed objection statement denying

the contents of the petition. It is contended that there is

head on collision between the two vehicles and the owner

and insurer of the motorcycle are proper and necessary

parties to the petition. It is also contended that there is a

contributory negligence on the part of the rider of the

motorcycle and hence, disputed the claim.

6. The claimant was examined as PW.1 and one

witness was examined as PW.2. The claimant has placed

reliance on 13 documents marked as Exs.P1 to P13. The

driver of the KSRTC bus was examined as RW.1.

7. After hearing the arguments, the Tribunal has

awarded compensation of Rs.2,82,400/- with interest at

the rate of 6% per annum from the date of petition till its

realisation under the following heads:

    1.        Pain and Suffering              Rs.   30,000/-
    2.        Medical Expenses                Rs.   22,000/-
    3.        Attendant,    nursing, extra    Rs.   10,000/-
              nourishment charges and
              conveyances
    4.        Loss of future earnings.        Rs.1,94,400/-

5. Loss of income during laid-up Rs. 6,000/-

period

6. Loss of amenities Rs. 20,000/-

Total Rs.2,82,400/-

8. Being aggrieved by this order, the Corporation

has filed MFA No.31489/2013 and it is contended that the

compensation awarded is exorbitant and further there is a

contributory negligence on the part of the rider of the

motorcycle which is not at all considered by the Tribunal.

Hence, he would seek for allowing the appeal by dismissing

the claim petition.

9. The claimant has filed an appeal in MFA

No.201741/2014 seeking enhancement of the

compensation on the ground that compensation awarded is

on lower side and the proper income was not taken by the

Tribunal and further it is asserted that the disability

considered was on lower side. Hence, he sought for

enhancement of the compensation.

10. Heard the arguments advanced by both the

parties and perused the records.

11. Having heard the arguments and perusing the

records, it is evident that there is head on collision

between motorcycle bearing Reg. No.KA-39/J-2483 and

KSRTC bus bearing Reg. No.KA-38/F-650. There is no

serious dispute of the fact that claimant has sustained

injuries in the said accident. However, it is a fact that the

owner and insurer of the motorcycle were not made as

parties. The Corporation is harping on the point that since

it is a head on collision, contributory negligence is required

to be attributed to the rider of the motorcycle. The records

further disclose that the claimant has suffered fracture of

tibia and fibula and the doctor has assessed the disability

at 17.5% to the whole body and it is definitely on the

higher side. The Tribunal has taken the disability at 15%

to the whole body. But, there is no evidence as to how the

Tribunal has considered the disability at 15%.

12. It is also important to note here that the

claimant is affected with polio. It is evident from his cross-

examination, wherein he admitted that his left leg is polio

struck. Though, the learned counsel appearing for the

respondent-Corporation contended that there is a

contributory negligence on the part of the rider of the

motorcycle, no material evidence is placed to substantiate

the said contention. On the contrary, Ex.P1-FIR is lodged

against the driver of the KSRTC bus. It is also evident that

driver of KSRTC bus was prosecuted and the said charge

sheet is not challenged. The final report produced at Ex.P2

disclose that the driver of the KSRTC bus was prosecuted

for the offences punishable under Sections 279 and 338 of

IPC. It is evident from Ex.P3, that there is head on collision

and no evidence is placed to show that from which end to

which end the KSRTC bus was moving so as to fix the

contributory negligence. The respondent No.1 would have

been the best witness in this regard. But he did not

disclose from which place he was driving the vehicle and

what was his destination. Under these circumstances,

when there are no any material evidence, it is not open for

the counsel appearing for the Corporation to harp on the

ground of contributory negligence. On the basis of

available records, the tribunal is justified in fastening the

liability on the driver of the KSRTC bus and no illegality

can be found in this regard.

13. Learned counsel appearing for the Corporation

further contend that the compensation awarded is on

higher side. He contended that the disability @ 15% taken

by the tribunal is also on higher side. At the same time, it

is also important to note here that the accident has

occurred on 09.02.2012. The regular notional income

taken by this Court for the accident of the year 2012 is

Rs.6,500/- per month. In the instant case, the tribunal has

taken the income at Rs.6,000/- per month. However, the

disability was taken on higher side. Hence, even though

the tribunal has taken the disability higher side, the

income was taken on lower side and as such it does not

call for any interference.

14. Learned counsel for the claimant would harp

on the fact that the compensation awarded is on lower side

on the ground that the income ought to have taken @

Rs.6,500/- per month. But, as observed above, the

disability is taken on higher side by the Tribunal and it will

take care of lesser income taken by Tribunal. Under these

circumstances, no grounds are made out for enhancing the

compensation and there are also no grounds forthcoming

for reducing the compensation.

15. Looking to these facts and circumstances, the

judgment and award passed by the Tribunal is just and

proper and does not call for any interference. Hence, both

the appeals are liable to be dismissed. Accordingly, I

proceed to pass the following:

ORDER

MFA No.31489/2013 and MFA No.201741/2014 are

dismissed.

No order as to costs.

Sd/-

JUDGE

LG/msr