Karnataka High Court
Sri. Manjunatha Poojary vs Sri. Ramanatha Pategar on 15 December, 2023
-1-
NC: 2023:KHC:47082
MFA No. 2002 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO.2002 OF 2017(MV-I)
BETWEEN:
SRI MANJUNATHA POOJARY,
S/O LATE NARAYANA POOJARY,
AGED ABOUT 45 YEARS,
R/O MASALEMANE, BANKESHWARA,
YADTHARE VILLAGE,
KUNDAPURA TALUK-576 201.
...APPELLANT
(BY SRI NAGARAJA HEGDE, ADVOCATE [PH])
AND:
1 . SRI RAMANATHA PATEGAR,
S/O LATE MAHADEVA,
AGED ABOUT 45 YEARS,
R/O BYRI MANE,
Digitally signed UKKERI VILLAGE, KUMTA TALUK,
by
VIJAYALAKSHMI UTTARAKANNADA DISTRICT-575 001.
BN
Location: High
Court of 2 . THE MANAGING DIRECTOR,
Karnataka KSRTC,
MANGALORE DIVISION,
KSRTC DEPOT.
MANGALORE - 575 001.
UTTAR KANNADA DISTICT.
...RESPONDENTS
(BY SRI THEJAS RAI K, ADVCOATE FOR R1 [ABSENT];
SRI T PRAKASH, ADVOCATE FOR R2 [ABSENT])
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.11.2016 PASSED IN MVC
NO.141/15 ON THE FILE OF THE SENIOR CIVIL JUDGE &
-2-
NC: 2023:KHC:47082
MFA No. 2002 of 2017
MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award passed
in MVC.No.141/2015 dated 02.11.2016 by learned Senior
Civil Judge and Additional MACT, Kundapura, the petitioner
has approached this Court in appeal seeking enhancement
of the compensation.
2. The brief facts of the case that are relevant are
as below:
The petitioner filed a claim petition under Section
166 of the Motor Vehicles Act stating that on 08.04.2014,
at about 07.30 pm, while he was traveling as a passenger
in bus bearing No.KA-19-F-2861 from Bhatkal towards
Byndoor, the driver of the bus stopped the same at
Byndoor bus stand, the petitioner was trying to get down
from the front door, but the driver suddenly moved the
NC: 2023:KHC:47082
same in negligent manner without giving any signal
resulting in fall of the petitioner and he sustaining injuries.
He was shifted to Anjali Hospital, Byndoor, then Adarsha
Hospital, Kundapura. Thereafter, he was taken to KMC
Hospital, Manipal as he had sustained head injury. He was
inpatient till 12.04.2014. It is contended that he was
working as Coolie earning Rs.15,000/- per month and as
such, claimed adequate compensation from the
respondent No.2-Corporation.
3. The respondent Nos.1 and 2 appeared before
the Tribunal and the respondent No.2 alone filed written
statement. It contended that the accident had taken place
due to the negligence of the petitioner but not the driver
of the bus. It was alleged that the petitioner jumped out of
the moving bus even before the driver stopped the bus at
the bus stop. The spot of the incident suggests that the
accident was due to the negligence of the petitioner and
therefore, the respondents are not liable to pay any
compensation to the petitioner. It was contended that the
NC: 2023:KHC:47082
claim is highly excessive and exorbitant and denied the
age, income and occupation of the petitioner.
4. On the basis of the above contentions, the
Tribunal framed appropriate issues. The petitioner was
examined as PW.1 and the Doctor who assessed disability
and treated the petitioner was examined as PW.2. Exs.P1
to 16 were marked in evidence. The respondent No.1 was
examined as RW.1.
5. After hearing both the sides, the Tribunal
awarded a compensation of Rs.2,83,240/- along with
interest at 6% per annum from the date of petition till its
deposit under different heads as below:
AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 40,000/-
Medical expenses, food and
nourishment, attendant and 31,940/-
conveyance charges
Loss of earning during the laid
32,500/-
up period
Disability 1,63,800/-
Loss of amenities 15,000/-
TOTAL 2,83,240/-
NC: 2023:KHC:47082
6. Being aggrieved by the said judgment, the
petitioner has approached this Court for enhancement.
7. On issuance of notice, respondent Nos.1 and 2
have appeared through its counsel and the Tribunal
records have been secured.
8. This appeal was once referred to the Lok-
Adalath, but later, the conciliation order was recalled at
the instance of the counsel for the respondent No.2 and as
such, the appeal is restored to the Court.
9. The arguments by the learned counsel for the
appellant was heard and learned counsel for respondent
No.2 did not appear despite several opportunities on
30.05.2023, 05.07.2023, 24.07.2023 and 11.08.2023.
10. Learned counsel for the appellant would submit
that the petitioner had sustained head injury and also left
lateral malleolar fracture and the CT Scan had shown
contusion of brain. The evidence of PW.2 who was the
treated doctor showed that there is cognitive disability due
NC: 2023:KHC:47082
to head injury to the extent of 62%. The Tribunal failed to
appreciate the evidence regarding the disability and it
concluded that the functional disability is only 15%. The
petitioner was a Coolie and agriculturist and therefore, if
the functional disability should have been assessed by it in
a proper manner, it is submitted that there was no such
cross-examination of PW.2 on disability and therefore, the
disability may be reassessed by this Court. He also relied
on the decisions in the cases of NEW INDIA ASSURANCE
COMPANY LIMITED, NEW COTTON MARKET, HUBBALLI
VS. ABDUL AND OTHERS and JAKIR HUSSEIN VS. SABIR
AND OTHERS2.
11. The fact that there was an accident involving
the bus owned by respondent No.2 driven by respondent
No.1 at Byndoor Bus Stop is not a dispute. The appellant
alleged that there was negligence on the part of the bus
driver. The respondent contended that the negligence on
the part of the petitioner. This aspect was considered by
2022 (4) KAR.L.J. 627
(2015) 7 SCC 252
NC: 2023:KHC:47082
the Tribunal and it was held that there was negligence on
the part of the bus driver as the bus had moved without
any signal by the conductor while the petitioner was
alighting from the bus. It was also held that the driver and
conductor of the bus should have been more careful while
the bus had stopped at the bus stop. The respondent No.2
has not filed any appeal against the said finding.
Therefore, the question is only in respect of the quantum
of compensation.
12. Learned counsel for the appellant has drawn the
attention of this Court to testimony of PW.2, the disability
certificate issued at Ex.P16 and the case sheet at Ex.P14
to contend that there was cognitive disability to the
petitioner. A perusal of the evidence of PW.2-Dr.Sreejayan
shows that he found a closed head injury with small right
frontal contusion and left lateral malleolar fracture. He also
says that the petitioner was in-patient from 08.04.2014 to
12.04.2014 and was discharged with an advise to continue
the medication of anti-convalescents. He also states that
NC: 2023:KHC:47082
his department in Manipal Hospital had issued the
disability certificate as per Ex.P16, which states that there
is disability of 62%.
13. A perusal of the disability certificate at Ex.P16
shows that he was examined by the Department of
Psychiatry at Manipal Hospital and after a detailed
neuropsychological examination, it was found as below:
"Summary: The neuropsychological profile is showing
deficits in the areas of mental speed, focused attention,
sustained attention, divided attention, verbal fluency,
visual working memory and comprehension, planning
especially in complex situations, set shifting, immediate
and delayed visual memory and immediate and delayed
logical memory. On the other hand, his profile shows an
adequate level of performance and intact ability in the
areas of verbal working memory and verbal learning
and memory. As an average level of planning ability
only in a simple situations.
Disability Percentage: It is important to note that
patient has 62% disability."
14. The said report was given by Dr.Johnson Alex
and Ashima Gupta. On the basis of the said report, the
learned counsel for the appellant submits that disability
should have been accepted by the Tribunal. When the
above cognitive disabilities are juxtaposed with the
NC: 2023:KHC:47082
avocation of the petitioner that is he is an agriculturist and
coolie, aged 45 years, there would not be much difficulty
for him to carry on his regular avocation. However, these
cognitive disabilities stated cannot be ignored. The
Tribunal opined that the functional disability would be
15%. Obviously, there is no co-relation between 15%
disability and the one stated by PW.2, the disability
certificate-Ex.P16. So also, the person who assessed the
disability i.e., Dr.Johnson Alex was not examined. PW.2
does not vouch for the disability but he only say that
Ex.P16 pertains to neuropsychological report. Keeping in
mind these aspects, it would be proper to assess the
functional disability at 20%.
15. The Tribunal has considered the notional
income at Rs.6,000/-. The notional income should be
commensurate with the year of the accident. The
guidelines issued by the Karnataka State Legal Services
Authority for settlement of disputes before Lok-Adalat
prescribe a notional income of Rs.8,500/- for the year-
- 10 -
NC: 2023:KHC:47082
2014. In umpteen numbers of judgments, this Court has
held that the guidelines of the KSLSA are in general
conformity with the wages fixed under the Minimum
Wages Act. Therefore, the 'loss of future earning' is
calculated as Rs.8,500 X 12 X 20% X 14 = Rs.2,85,600/-.
Considering the nature of the injury, it can be safely be
said that the petitioner was unable to resume his work at
least for a period of five months as held by the Tribunal.
Therefore, the petitioner is entitled for a sum of
Rs.42,500/- (Rs.8,500/- X 5) in respect of 'loss of income
during laid up period'. Similarly, the compensation under
the head of 'loss of amenities in life' needs to be enhanced
to Rs.40,000/-. The compensation awarded by the
Tribunal under the remaining heads do not require any
enhancement as it is proper and correct. Hence, the
petitioner is entitled for the modified compensation under
different heads as below:
- 11 -
NC: 2023:KHC:47082
AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 40,000/-
Medical expenses, food and
nourishment, attendant and 31,940/-
conveyance charges
Loss of future earning 2,85,600/-
Loss of earning during laid up
42,500/-
period
Loss of amenities 40,000/-
TOTAL 4,40,040/-
16. Thus, the petitioner is entitled for compensation
of Rs.4,40,040/- instead of Rs.2,83,240/- together with
interest at the rate of 6% per annum and therefore, the
appeal by the Insurance Company deserves to be allowed
in part. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by
the Tribunal is modified by awarding a sum of
Rs.4,40,040/- instead of Rs.2,83,240/- together with
interest at the rate of 6% per annum from the date of
petition till realization .
- 12 -
NC: 2023:KHC:47082
(iii) The respondent No.2/Insurance company is
directed to deposit the entire compensation amount within
a period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands
unaltered.
Sd/-
JUDGE
NR/-
