Karnataka High Court
The Managing Director vs Prakash Poojary on 11 January, 2023
Bench: K.S.Mudagal, Anil B Katti
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
MISCELLANEOUS FIRST APPEAL NO.2157/2018 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.8399/2017 (MV-I)
M.F.A.No.2157/2018:
BETWEEN:
PRAKASH POOJARY
AGED ABOUT 42 YEARS
S/O DEVAPPA POOJARY
R/AT THODKAT, NANASAHEB ROAD
VADERHOBLI
KUNDAPURA TALUK - 576 204 ...APPELLANT
(BY SRI H.PAVANA CHANDRA SHETTY, ADVOCATE)
AND:
THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICE
K H ROAD, BENGALURU - 560 027
REP: BY KSRTC DEPOT
KUNDAPURA - 576 201 ...RESPONDENT
(BY SRI F.S.DABALI, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 08.08.2017 PASSED BY THE ADDITIONAL
DISTRICT JUDGE & ADDITIONAL MACT, UDUPI (SITTING AT
KUNDAPURA), KUNDAPURA IN MVC NO.779/2014.
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
2
M.F.A.No.8399/2017:
BETWEEN:
THE MANAGING DIRECTOR
K.S.R.T.C., CENTRAL OFFICE
K H ROAD, SHANTHINAGAR
BENGALURU - 560 027
REP: BY KSRTC DEPOT
KUNDAPURA - 576 201
NOW REP. BY ITS
CHIEF LAW OFFICER ...APPELLANT
(BY SRI F.S.DABALI, ADVOCATE)
AND:
PRAKASH POOJARY
S/O DEVAPPA POOJARY
AGED ABOUT 41 YEARS
R/AT THODKAT, NANASAHEB ROAD
VADER HOBLI
KUNDAPURA TALUK
UDUPI DISTRICT - 576 201 ...RESPONDENT
(BY SRI H.PAVANA CHANDRA SHETTY, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD 08.08.2017 PASSED BY THE ADDITIONAL DISTRICT
JUDGE & ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA),
KUNDAPURA IN MVC NO.779/2014 AWARDING COMPENSATION OF
RS.4,73,130/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
3
JUDGMENT
Heard.
2. Aggrieved by the award dated 08.08.2017 in
M.V.C.No.779/2014 on the file of the Additional District Judge
and Additional MACT, Udupi, Sitting at Kundapura, Kundapura,
the claimant has preferred M.F.A.No.2157/2018 and the
Insurer has preferred M.F.A.No.8399/2017.
3. For the purpose of convenience, the parties will be
referred to henceforth according to their ranks before the
Tribunal.
4. On 25.06.2014 at 9.45 p.m. when the claimant
was riding his motorcycle bearing No.KA-20-EA-4267 near
Shastri Circle, Kundapura Taluk, the KSRTC bus bearing
No.KA-19-F-3220 hit the said motorcycle and caused the
accident. Due to the accident, the claimant suffered certain
injuries. He filed M.V.C.No.779/2014 before the Additional
District Judge and Additional MACT, Udupi (sitting at
Kundapura), Kundapura claiming compensation of
Rs.25,00,000/- on the ground that due to the injuries in the
accident, he has suffered permanent physical disability. At the
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
relevant time, the respondent was the owner of the offending
bus and employer of offending driver. Respondent contested
the petition denying the rashness and negligence on the part
of its driver, age, occupation, income of the claimant and its
liability to pay the compensation. The respondent claimed that
the accident occurred due to rashness and negligence on the
part of the claimant himself.
5. In support of their case, the parties adduced
evidence before the Tribunal. The Tribunal on hearing both
side by the impugned award granted compensation of
Rs.4,73,130/- on different heads as per the table below:
Sl. Particulars Amount
No. in Rs.
1 Injury, pain and sufferings 60,000/-
2 Medical Expenses 26,726/-
Loss of earning during
3 2,400/-
treatment
4 Bed rest 16,000/-
Loss of future earning
5 3,60,000/-
capacity
Conveyance, nourishment
6 8,000/-
and attendant charges
Total 4,73,126/-
rounded off to
4,73,130/-
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
6. The Tribunal held that the accident occurred due
to rash and negligent driving of the bus by its driver. The
Tribunal relying on the evidence of PWs.1 and 2 held that due
to the injuries suffered by the claimant in the accident, he has
suffered permanent physical disability of 25%. Assessing his
income at Rs.8,000/- per month, the Tribunal awarded
compensation on heads of loss of future earnings as aforesaid.
Further the Tribunal awarded different sums on the heads of
loss of earning during laid up period, pain and sufferings,
medical expenses, conveyance, nourishment and attendance
charges, as aforesaid.
7. Challenging adequacy of the compensation
awarded, the claimant has preferred M.F.A.No.2157/2018 and
challenging the finding of the Tribunal regarding rashness and
negligence on the part of its bus driver, quantum of
compensation and its liability, KSRTC has preferred
M.F.A.No.8399/2017.
8. Sri F.S.Dabali, learned Counsel for KSRTC submits
that Ex.P2 spot mahazar and Ex.P14 the sketch of the scene
of offence coupled with evidence of PW.1 and RW.1 show that
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
the claimant himself was rash and negligent in riding his
vehicle. He further submits that the doctor who treated the
claimant was not examined and even the evidence of PW.2
does not show that any permanent physical disability or
functional disability of the claimant. He further submits that
the compensation awarded on other heads is also on higher
side.
9. Sri H.Pavana Chandra Shetty, learned Counsel for
the claimant submits that occular evidence of PW.1, Ex.P2 and
Ex.P13 show that it was the driver of the bus who was
negligent in driving the bus. Therefore the finding with regard
to negligence does not warrant any interference. So far as
compensation, he submits that the income assessed by the
Tribunal and the compensation awarded on head of pain and
sufferings, loss of future earning is on lower side. He further
submits that the Tribunal committed error in not awarding any
compensation on the head loss of amenities.
Reg. Rashness and Negligence:
10. PW.1 the claimant contended that it was the driver
of the bus who drove the bus in rash and negligent manner
and hit his vehicle by head on collision. Ex.P4 IMV report
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
shows that there were damages to the front side of the bus
and the motorcycle of the claimant. Ex.P4 was not disputed.
RW.1 driver of the bus contrary to that says that the claimant
came from hind side of the bus and hit the bus. Further on
examination of the sketch of scene of offence referred by
learned Counsel for KSRTC, admittedly, the Investigating
Officer filed the charge sheet against the driver of bus. RW.1
also admits that. For the purpose of this case, such material
was sufficient to hold that rashness and negligence was on the
part of the driver of the bus. Therefore the said finding of the
Tribunal warrants no interference.
Reg. Compensation:
11. Ex.P12 scanning report shows that the claimant
had suffered the following injuries:
1. Fracture of left orbital roof and left frontal
sinus and fracture of left zygomatic arch.
2. Haemorrhage noted in left frontal, left ethmoid
and bilateral sphenoid sinuses.
3. Soft tissue swelling noted in left parieto-
occipital region and in left side of face.
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
12. The report shows that there was mild
haemorrhagic contusion in frontal lobes with mild
subarachnoid haemorrhage, fracture of bones as mentioned
with sinus haemorrhage. Discharge summary Ex.P8 of
Chinmayi Hospital coupled with the evidence of PW.1 show
that the claimant was treated as inpatient in Chinmayi
Hospital, Kundapura from 25.06.2014 to 03.07.2014.
13. As per the evidence of PW.2 and Ex.P10 the
claimant had suffered loss of hearing capacity to the extent of
20% to the left ear and 48% to the right ear. According to
him, it was permanent physical disability. Since the disability
spoken by PW.2 was to a particular limb, the Tribunal should
have taken 1/3rd of the same as permanent physical disability
to the whole body, instead of 25%. That comes to 22.6% and
rounded off to 23%.
14. According to the claimant, he was doing centering
work and some contract works. Such occupation needs good
hearing capacity. Therefore there is no merit in the contention
that such loss of hearing had caused no functional disability to
him. So for his earning capacity, there was no proof of actual
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
income and the Tribunal considered his income at Rs.8,000/-
per month. Having regard to the nature of the work of the
claimant and the wage rate in the year 2014 during which
period the accident took place, the Tribunal should have
considered his income at Rs.8,500/- per month notionally.
15. As per the claimant's own document Ex.P6 Driving
License, he was aged 41 years. Therefore the Tribunal should
have considered the age at 41 years. Having regard to his age
and employment, the Tribunal should have super added 25%
to the income of the claimant by way of loss of future
prospects. For the age of 41 years, the Tribunal applied the
multiplier 14 which is correct. Therefore loss of future earning
of the claimant comes to Rs.4,10,550/- (8500 + 25% of
8500= 10625 x 12x 14 =17,85,000 x 23%).
16 The compensation awarded by the Tribunal on the
head of medical expenses was based on medical records. That
does not warrant any interference. Having regard to the fact
that the claimant suffered three fractures and the nature of
the injuries, the compensation awarded under the head of
pain and sufferings needs to be maintained.
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
17. Similarly, the medical records show that the
claimant was treated as inpatient for 10 days. Having regard
to the nature of the injuries, the treatment he underwent and
the medical evidence, at least for three months, he was not
able to attend to his work. Therefore a sum of Rs.25,500/-
(Rs.8,500 x 3) should have been awarded as loss of income
during laid up period.
18. Since the claimant has lost his hearing capacity,
the Tribunal should have awarded Rs.25,000/- on the head of
loss of amenities. Awarding a sum of Rs.10,000/- on
conveyance, attendant charges would meet the ends of
justice. Therefore the just compensation payable is as follows:
Sl. Particulars Amount
No. in Rs.
1 Loss of earning capacity 4,10,550/-
2 Loss of income during laid up 25,500/-
period
3 Pain and sufferings 60,000/-
4 Medical expenses 26,726/-
5. Loss of amenities 25,000/-
6. Conveyance, attendant charges 10,000/-
Total Compensation 5,57,776/-
M.F.A.No.2157/2018
C/w M.F.A.No.8399/2017
19. The award requires to be modified accordingly.
The appeal of KSRTC is liable to the dismissed and the appeal
of the claimant deserves to be allowed in part. Hence the
following:
ORDER
(i) M.F.A.No.8399/2017 is dismissed.
(ii) M.F.A.No.2157/2018 is partly allowed.
(iii) The claimant is entitled to compensation of
Rs.5,57,800/- with interest thereon at 6% per
annum from the date of petition till the date of
payment/deposit.
(iv) KSRTC is entitled to deposit the amount after
adjusting the amount already deposited, if any.
(v) Registry shall transmit the TCR's and amount in
deposit if any to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
