Karnataka High Court
The Divisional Controller vs T. Adinarayana S/O Narayanappa on 11 July, 2023
Bench: M.G.Umaj
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MFA No. 103188 of 2019
C/W MFA No. 100454 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.103188/2019 (MV-I)
C/W MISCELLANEOUS FIRST APPEAL NO.100454/2020
IN M.FA.NO.103188/2019:
BETWEEN:
THE DIVISIONAL CONTROLLER, KSRTC,
OWNER OF KSRTC BUS BEARING REG.NO.KA-06/F-949,
TUMKURU DIVISION, TUMKURU-572101,
REPRESENTED BY IT'S CHIEF LAW OFFICER.
...APPELLANT
(BY SRI S. C. BHUTI, ADVOCATE)
AND:
1. T. ADINARAYANA S/O. NARAYANAPPA,
AGED ABOUT: 46 YEARS,
BUSINESSMAN CUM AGRICULTURIST, R/O: 35, EWS,
LIG NO.96, OPPOSITE VIANNAY VIDYALAYA,
KHB COLONY, NETAJI NAGAR, BALLARI-583104.
Digitally
signed by 2. N.S. LINGARAJA S/O. LATE SHARANAPPA,
VINAYAKA AGE: 48 YEARS, DRIVER OF THE KSRTC BUS
BV
BEARING REG.NO.KA-06/F-949, SIRA DEPOT,
R/O: DHAVALAGIRI LAYOUT, 11TH CROSS,
BHIMASAMUDRA ROAD, CHITRADURGA-577501.
...RESPONDENTS
(BY SMT. PADMAJA S. TADAPATRI, ADVOCATE FOR
SRI S.A. SONDUR, ADVOCATE FOR R1;
NOTICE R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT, 1988, PRAYING
TO CALL FOR THE RECORDS AND MODIFY/ SET ASIDE THE
JUDGMENT AND AWARD DATED 03.04.2019 PASSED IN MVC
NO.302/2018 ON THE FILE OF THE SECOND ADDITIONAL SENIOR
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MFA No. 103188 of 2019
C/W MFA No. 100454 of 2020
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.11,
BALLARI AND ETC.
IN M.FA.NO.100454/2020:
BETWEEN:
T. ADINARAYANA S/O. NARAYANAPPA,
AGED ABOUT: 46 YEARS,
BUSINESS-MAN CUM AGRICULTURIST,
R/O: 35, EWS, LIG NO.96,
OPPOSITE VIANNAY VIDYALAYA, KHB COLONY,
NETAJI NAGAR, BALLARI-583104.
...APPELLANT
(BY SMT. PADMAJA S. TADAPATRI, ADVOCATE FOR
SRI SOURBH A. SONDUR, ADVOCATE)
AND:
1. SHRI N.S. LINGARAJA S/O. LATE SHARANAPPA,
AGE: 48 YEARS, DRIVER OF THE KSRTC BUS
BEARING REG.NO.KA-06/F-949,
R/O: DHAVALAGIRI LAYOUT, 11TH CROSS,
BHIMASAMUDRA ROAD,
CHITRADURGA-577501.
2. THE DIVISIONAL CONTROLLER,
KSRTC, OWNER OF KSRTC BUS BEARING
REG.NO.KA-06/F-949, TUMKURU DIVISION,
TUMKURU-585 355.
...RESPONDENTS
(BY SRI S.C. BHUTI, ADVOCATE FOR R2
NOTICE R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT, 1988, PRAYING
TO CALL FOR THE RECORDS AND MODIFY/ SET ASIDE THE
JUDGMENT AND AWARD DATED 03.04.2019 PASSED IN MVC
NO.302/2018 ON THE FILE OF THE SECOND ADDITIONAL SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.11,
BALLARI AND ETC.
THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.07.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 103188 of 2019
C/W MFA No. 100454 of 2020
JUDGMENT
The Karnataka State Road Transport Corporation
(hereinafter referred to as the 'Corporation'), being the
respondent has preferred MFA.No.103188/2019, challenging
the quantum of compensation and the claimant has preferred
the appeal in MFA.No.100454/2020 seeking enhancement of
compensation awarded by the M.A.C.T. No.11 and II Additional
Senior Civil Judge, Ballari (hereinafter referred to as the
'Tribunal') by its judgment and award dated 03.04.2019 passed
in M.V.C.No.302/2018.
2. The parties are referred to as per their ranks before
the Tribunal for the sake of convenience.
3. Brief facts of the case are that the claimant boarded
the Bus bearing Reg.No.KA-06/F-949 belonging to the
Corporation at Ballari to go to Bengaluru. While the bus
reached near Tumkur on 03.10.2007, the driver driven the
same in the rash and negligent manner and dashed to the
underpass wall, as a result of which, the claimant sustained
injuries. Immediately, he was shifted to the Victoria Hospital,
Bengaluru and thereafter to Columbia Asia Hospital, Hebbal.
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He was treated as an inpatient from 03.10.2007 to 05.11.2007.
He has suffered displaced fracture of shaft of left humrus,
underwent surgery of his left hand. Even after discharge from
the hospital, he took treatment continuously but has suffered
permanent disability. The claimant was an agriculturist. He
was also doing coal trading business and was earning
Rs.5,50,000/- per annum. Due to the disability, he has suffered
loss of income. Therefore he claimed compensation from the
Corporation for the injuries and the loss of income suffered by
him.
4. Respondent No.2-Corporation contested the matter
by filing the objections. It has denied the allegations made in
the claim petition and contended that the petitioner is not
entitled for any compensation.
5. On the basis of all these pleadings, the following
issues were came to be framed;
"1. Whether the petitioner proves that on 3.10.2017 at
about 11.45 a.m., when he was proceeding in the
KSRTC Bus bearing Reg.no.KA-16/F-949 to go to
Bangalore as a paid passenger and when he reached
on Tumkur-Bengaluru N.H.4 service road, near
Laxminarayana Bhavana Kalyanamantapa,
Nelamangala, at that time, the respondent No. 1
being a driver of the above said vehicle drove the
vehicle in a high speed, rash and negligent manner
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and tried to overtake the front going two wheeler
and lost the control over the steering and dashed to
the under-pass cement wall by the side of the road,
as a result of which, injuries? the petitioner
sustained grievous injuries?
2. Whether the petitioner is entitle for the
compensation? If so, for what quantum and from
whom?
3. What order or award ?"
6. The claimant examined PWs.1 to 3 and got marked
Exs.P1 to P83 in support of his contentions. Respondent No.2
examined RW.1 in support of its defence.
7. The Tribunal after taking into consideration of all
these materials on record, answered issue No.1 in the
affirmative, issue No.2 partly in the affirmative and accordingly,
allowed the claim petition granting compensation of
Rs.6,23,745/- with interest at 9% per annum.
8. Being aggrieved by the same, the Corporation has
preferred MFA.No.103188/2019 contending that the amount
awarded is exorbitant. The claimant has also preferred
MFA.No.100454/2020 seeking enhancement of compensation.
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C/W MFA No. 100454 of 2020
9. Heard Sri S.C. Bhuti, learned counsel for the
appellant-Corporation and Smt. Padmaja S. Tadapatri, learned
counsel for the respondents-claimants.
10. Learned counsel for the Corporation submitted that
the claimant has suffered only one fracture i.e., displaced
fracture shaft of left humrus as per Ex.P1-the wound certificate.
He was admitted to the hospital on 03.10.2017 and discharged
on 05.10.2017. The Tribunal committed an error in awarding
the compensation of Rs.2,83,274/- towards medical expenses.
It ignored the fact that there are duplication of the bills and it
has not taken into consideration the advance paid by the
claimant.
11. Learned counsel further submitted that the
traveling expenses awarded by the Tribunal is also exorbitant.
It will not correspond with the medical bills. Exs.P40 to P48
disclose that they are concocted for the purpose of claiming
compensation. PW.2 who issued these documents categorically
stated that as per the say of the auditor, these vouchers were
issued. PW2 has categorically stated that salary to assistant as
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per Exs.P49 to P63 and the vouchers were shown / issued as
per the say of the auditor.
12. Learned counsel for the appellant-Corporation
contended that since the claimant is stated to be a
businessman filing Income Tax Returns. It has shown his
income which is steadily increasing even after the date of
accident. Therefore, there is no loss of earning due to the
physical disability. Under such circumstances, the claimant is
not entitled for any compensation towards loss of future
earnings. He placed reliance on the decision of the Apex Court
in Raj Kumar Vs. Ajay Kumar 1 in support of his contention.
Learned counsel further submitted that the Tribunal has also
not given any reasons for awarding interest at 9% per annum
and therefore, prays for modifying the impugned judgment and
award passed by the Tribunal.
13. Per contra, learned counsel for the claimant seeking
enhancement of the compensation submitted that the claimant
was working as an agriculturist and also doing coal trading. He
submitted the income tax rates as per Exs.P.73 and 73A for the
2011 (1) SCC 343
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assessment year 2015-16 and 2016-17. The date of accident is
03.10.2017. Exs.P73 and P73A were filed on 04.02.2016 and
13.01.2017 i.e., much prior to the date of the accident. Under
such circumstances, the Tribunal committed an error in
ignoring the said documents while taking the income of the
claimant as Rs.10,648/- per month. If the undisputed income
tax returns are taken into consideration, the income of the
claimant at the time of the accident was at least Rs.29,000/-
per month. Learned counsel placed reliance on the decision of
the Apex Court in Smt.Anjali v. Lokendra Rathod 2 to
contend that the income tax returns is a statutory document
and reliance is to be placed on the same. Learned counsel for
the claimant produced Income Tax Returns submitted by the
claimant for the assessment year 2017-18 and 2018-19 as
additional documents.
14. Learned counsel submitted that the claimant
produced Exs.P40 to P48 to claim traveling expenses and
Exs.P49 to P63 to claim salary paid to the assistant. The
Tribunal has awarded compensation towards pain and suffering
AIR 2023 SC 44
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only at Rs.10,000/- without any basis. The Tribunal has also
not assessed the compensation towards loss of income during
laid up period. Therefore the compensation awarded by the
Tribunal is to be re-assessed and reasonable compensation is to
be awarded by allowing the appeal preferred by the claimant.
Accordingly, prays to dismiss the appeal filed by the
Corporation.
15. Further, learned counsel for the claimant-
respondent submits that the decision relied on by the learned
counsel for the appellant is not applicable to the facts of the
case. Moreover, income of the claimant would have been much
more if he had not suffered the physical disability suffered by
him due to the accident. Therefore, she prays for enhancing
the compensation taking into consideration the income of the
claimant as per the Income Tax Returns.
16. Perused the materials on record including the trial
Court records.
17. The point that arises for consideration in these
appeals is:
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C/W MFA No. 100454 of 2020
Whether the impugned judgment and award passed
by the Tribunal calls for enhancement by this
Court?
18. My answer to the above point is partly in the
affirmative for the following:
REASONS
19. It is the specific contention of the claimant that he
was working as an agriculturist, also doing business and was
earning regular income. In support of his contention he has
produced Income Tax Returns for the assessment year 2015-
16; 2016-17 and also 2017-18 before the Tribunal and for the
years 2017-18 and 2018-19 as additional documents. These
documents disclose that income of the claimant is steadily
increasing as during 2015-16 it was Rs.3,28,500/-; in 2016-17
it was Rs.3,50,219/-; in 2017-18 - Rs.3,63,000/- and during
2018-19 it was Rs.3,77,000/-. However, it could be considered
that, but for the disability suffered, he would have earned little
more from his avocation.
20. Learned counsel for the claimant placed reliance on
the decision of Apex Court in Smt.Anjali (supra) to contend
that income of the injured as per the Income Tax Returns is to
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be taken into consideration to assess loss of future income.
However, the Apex Court considered the case of death where
the income of the deceased was taken into consideration as per
the Returns filed before the Income Tax Authorities. But in the
present case it is a case of injury where the claimant has
suffered partial permanent disability. The Income Tax Returns
produced by the claimant before the Tribunal as per Ex.P.73
and P.73(a) disclose that income at the time of accident. The
Income Tax Returns for the assessment years 2017-18 and
2018-19 produced before this Court disclose that there is
steady increase in the income of the claimant.
21. The Apex Court in Raj Kumar (supra), considered
in detail about the assessment of future loss of earnings due to
permanent disability and held in paragraph nos. 12 to 14 as
under:
"12. Therefore, the Tribunal has to first decide whether there
is any permanent disability and if so the extent of such
permanent disability. This means that the tribunal should
consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent
total disablement or permanent partial disablement,
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(iii) if the disablement percentage is expressed with reference
to any specific limb, then the effect of such disablement of the
limb on the functioning of the entire body, that is the
permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability
then there is no question of proceeding further and
determining the loss of future earning capacity. But if the
Tribunal concludes that there is permanent disability then it
will proceed to ascertain its extent. After the Tribunal
ascertains the actual extent of permanent disability of the
claimant based on the medical evidence, it has to determine
whether such permanent disability has affected or will affect
his earning capacity.
13. Ascertainment of the effect of the permanent disability on
the actual earning capacity involves three steps. The Tribunal
has to first ascertain what activities the claimant could carry on
in spite of the permanent disability and what he could not do
as a result of the permanent ability (this is also relevant for
awarding compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age. The
third step is to find out whether (i) the claimant is totally
disabled from earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could still
effectively carry on the activities and functions, which he was
earlier carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale of
activities and functions so that he continues to earn or can
continue to earn his livelihood.
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14. For example, if the left hand of a claimant is amputated,
the permanent physical or functional disablement may be
assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually be
hundred percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as he
could perform his clerical functions; and in that event the loss
of earning capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical disability,
but far less. In fact, there may not be any need to award any
compensation under the head of `loss of future earnings', if
the claimant continues in government service, though he may
be awarded compensation under the head of loss of amenities
as a consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not found
suitable for discharging the duties attached to the post or job
which he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but lesser post
with lesser emoluments, in which case there should be a
limited award under the head of loss of future earning capacity,
taking note of the reduced earning capacity."
(emphasis supplied)
22. In the light of the above, if the present case is
taken into consideration, the claimant is a businessman, his
income shows steady increase over a period of time, as per his
own income tax returns. Therefore, the loss of earning due to
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permanent disability could not be calculated in the traditional
way by taking into consideration the income of the claimant at
the time of accident and the percentage of disability. However,
the contention of the learned counsel for the respondent that
but for the permanent disability suffered by the claimant he
would have earned something more, could be taken into
consideration. No evidence is led t prove the extent of the
functional disability of the claimant. Under such circumstances,
the effect of the permanent disability on the actual earning
capacity of the claimant applying the steps suggested by the
Apex Court cannot be found out. Therefore, without applying a
straight jacket formula, a reasonable amount could be awarded
under the head loss of income due to permanent disability.
Even though such determination cannot be with mathematical
accuracy, I am of the opinion that the claimant may be
awarded a sum of Rs.1,00,000/-, globally under this head.
23. The claimant claimed traveling expenses of
Rs.55,000/- by producing vouchers. Serial numbers and the
date of vouchers do not correspond with one another and it
also does not correspond with the medical bills to contend that
the claimant had accompanied by the attendant who is
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examined as PW2, to take treatment at Bengaluru. Moreover,
as rightly contended by the learned counsel for the
Corporation, PW2 categorically stated that he has produced the
vouchers as per the say of the Auditor. Learned counsel for the
claimant submits that the vouchers were obtained subsequently
for producing the same before the Court which also supports
contention of the Corporation. However, it does not mean to
say that claimant has not at all spent anything towards
attendant's charges. Taking into consideration the fact that the
claimant was admitted to the hospital for only three days and
subsequently he might have taken treatment as outpatient, a
sum of Rs.25,000/- could be awarded towards attendant
charges and traveling expenses.
24. Medical bills for Rs.2,08,274/- is produced by the
claimant and the same is considered by the Tribunal. I do not
find any substance in the contention of the learned counsel for
the Corporation that there is duplication of the bills. Therefore,
he is entitled for a sum of Rs.2,08,274/- towards medical
expenses.
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25. The Tribunal has awarded compensation of
Rs.10,000/- towards loss of amenities. Considering the nature
of the injury and duration of treatment taken by the claimant, I
am of the opinion that a reasonable amount of Rs.30,000/-
could be awarded towards loss of amenities.
26. The Tribunal awarded compensation of Rs.10,000/-
towards loss of income during laid up period. The documents
that are produced before the Court disclose that claimant was
admitted as an inpatient for a period of three days. The
medical records disclose that he suffered displaced fracture of
shaft of left humorous. Therefore, I am of the opinion that the
claimant must have compelled to restrict his movement at least
for a period of three months. However, his business had not
shut down, but on the other hand, for the assessment year
when the accident had occurred, there is increase in his income
when compared to the earlier years. Therefore I am of the
opinion that the amount awarded by the Tribunal is just and
reasonable.
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27. The Tribunal has awarded interest at 9% p.a.
without assigning any valid reasons. Hence, the same is to be
reduced to 6% p.a.
In view of the discussions held above, the claimant is
entitled for the following amount as compensation.
Sl. No. Particulars Amount
1. Attendant charges, traveling 25,000.00
expenses
2. Medical expenses 2,08,274.00
3. Loss of income due to 1,00,000.00
permanent disability
4. Loss of amenities 10,000.00
5. Loss of income during laid up 10,000.00
period
Total 3,53,274.00
Thus the claimant is entitled for compensation of Rs.3,53,274/-
as against Rs.6,23,745/- awarded by the Tribunal with interest
at 6% p.a. Hence, I answer the above point in the affirmative
and proceed to pass the following order.
ORDER
Appeal filed by the appellant-Corporation in M.F.A. No.
103188/2019 is allowed in part. Impugned judgment and
award dated 03.04.2019 passed in M.V.C. No. 302/2018 by the
MACT No. 11 and II Addl. Sr. Civil Judge, Ballari is modified to
the extent holding that the claimant is entitled for
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compensation of Rs.3,53,274/- as against Rs.6,23,745/-
awarded by the Tribunal with interest at 6% p.a. from the date
of petition till realisation.
Appellant-Corporation is directed to deposit the
compensation amount with interest within two months from the
date of petition till realisation, if not already deposited.
Appeal filed by the appellant-claimant in M.F.A. No.
100454/2020 is dismissed.
Draw decree accordingly.
Send back the trial Court records with copy of the
judgment and award.
SD/-
JUDGE
rh/bvv
