Karnataka High Court
K S Lohit vs The Depot Manager on 23 May, 2023
Bench: C M Joshi
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MFA No. 4097 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 4097 OF 2015 (MV-I)
BETWEEN:
K. S. LOHIT,
S/O. SHANKAREGOWDA,
AGED ABOUT 23 YEARS,
R/O COLLEGE ROAD,
JAVAGAL,
ARSIKERE TALUK - 573 103,
HASSAN DISTRICT.
...APPELLANT
(BY SRI H.T.JAGADEESH, ADVOCATE)
AND:
THE DEPOT MANAGER,
Digitally signed
by T S KSRTC, ARSIKERE DEPOT,
NAGARATHNA
Location: High CHIKKAMAGALUR DIVISION - 572 115.
Court of
Karnataka
....RESPONDENT
(BY SRI ASHOK KUMAR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED: 01.01.2015 PASSED IN MVC NO.1174/2013
ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC & MACT,
ARSIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 4097 of 2015
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the judgment and award dated 01-01-2015
passed in MVC No.1174/2013 by the learned Senior Civil Judge
and JMFC and MACT, Arsikere, the petitioner/appellant has
approached this Court in appeal urging various grounds.
2. By the said judgment and award, the Tribunal has
allowed the claim petition in part and awarded a sum of
Rs.11,04,000/- together with interest at 6% p.a.(excluding
interest for Rs.2,00,000/- awarded towards future medical
expenses) from the date of petition till its deposit.
3. The parties are referred to as per their ranks before
the Tribunal for the sake of convenience.
4. The brief facts are as below:
That on 12.5.2013 at about 5.00 P.M while the petitioner
was boarding the bus bearing Reg. No.KA.13/F-1618 at Javagal
bus stand, the driver of the KSRTC bus bearing Reg.No.KA
18/F-179 came from back side and dashed against the
MFA No. 4097 of 2015
petitioner, as a result, the petitioner sustained injuries on his
hip and other vital parts of the body. Immediately, petitioner
was taken to Javagal hospital and later on to Mangala
Hospital, Hassan. He took treatment and incurred
Rs.3,00,000/- for medical expenses as he got admitted in the
hospital for about 1 and 1/2 months and he also incurred
expenses of Rs.1,00,000/- for attendant, food and
nourishment. It was the further case of the petitioner that, the
petitioner is a student and also doing milk vending business
having monthly income of Rs.8,000/-. Due to the accident, he
could not concentrate on studies and also he could not squat
and walk properly and as he has sustained fracture of hip, left
acetabulam, right pubic Rami and severe Urethral injury, due to
which he is deprived from conjugal life. Hence, he prayed to
allow of petition.
5. After issuance of notice by the Tribunal, the
respondent appeared before the Tribunal and filed written
statement.
6. The respondent-KSRTC has admitted that it is the
owner of the offending vehicle. But, categorically denied the
MFA No. 4097 of 2015
actionable negligence of its driver; age, income and avocation
of the petitioner. It has contended that the accident occurred
due to the negligence of the petitioner and in order to have
wrongful gain, he has filed false case. It has contended that,
the petitioner is hale and healthy and he can do his work as
earlier and the compensation claimed with interest is
exorbitant and prayed to dismiss the petition.
7. On the basis of the above pleadings, the Tribunal has
framed necessary issues for its consideration and after
considering the oral evidence of PW1, CWs 1 to 2 and
documentary evidence of Ex.P1 to P14 on behalf of he
petitioner, has allowed the petition in part and awarded a sum
of Rs.11,04,000/- as compensation under different heads as
below:
Medical expenses Rs. 1,45,730/-
Pain and sufferings Rs. 1,17,000/-
Loss of future earning Rs. 5,05,440/-
Loss of amenities Rs. 20,000/-
Conveyance, food, nourishment and Rs. 20,000/-
attendant charges
Loss of laid up period Rs. 36,000/-
Loss of marriage prospects Rs. 25,000/-
Traveling expenses Rs. 34,830/-
Future medical expenses Rs. 2,00,000/-
Total Rs. 11,04,000/-
MFA No. 4097 of 2015
8. Aggrieved by the said judgment and award, the
petitioner is before this Court seeking enhancement contending
that the Tribunal has grossly erred in not properly appreciating
the evidence on record in the proper perspective and has
awarded a paltry amount as compensation. It is contended
that the compensation awarded under all the heads are
abysmal and without proper consideration of the evidence
brought on record.
9. Respondent-KSRTC has appeared in pursuance to the
notice issued by this Court and Tribunal records have been
secured.
10. I have heard Sri H.T.Jagadeesh, learned counsel
appearing for the appellant/petitioner and Sri Ashok Kumar,
learned counsel appearing for the respondent and perused the
Tribunal records.
11. The fact that the petitioner suffered the injury while
boarding the bus at Javagal bus stand and that after
investigation, chargesheet was filed against the bus driver
indicting him for the negligent driving has attained finality by
virtue of the decision by the Tribunal. The respondent KSRTC
MFA No. 4097 of 2015
had not adduced any evidence before the Tribunal. Therefore,
the fact that there was an accident involving the bus belonging
to the respondent is not in dispute.
12. The petitioner suffered fracture of left acetabulam,
fracture of pubic rami, severe urethral injury, and had
tenderness over spine, chest, abrasion over forearm and left
hip as may be seen from Ex.P9. The evidence of the CW1 and
2 also establish this aspect. Therefore, it is only the
assessment of the compensation which is in question before
this Court.
13. The evidence of the Medical officer shows that
petitioner suffers from permanent disability on his left lower
limb to the extent of 20% and right lower limb to the extent of
20%. The Tribunal notes that the evidence of the urologist Dr.
Venkatesh Murthy, speaks of the damage to the urethra which
has resulted in 80 to 85% of the disability. It has also
observed in para 15 of its judgment that repeated treatment
was necessitated due to the injuries. It has awarded a sum of
Rs.1,17,000/- towards pain and sufferings. I find that the
MFA No. 4097 of 2015
compensation awarded under this head is adequate and no
enhancement is necessary.
14. The Tribunal has awarded a sum of Rs.1,45,730/-
towards medical expenses on the basis of the bills produced by
the petitioner which also do not need any enhancement.
15. The Tribunal has awarded a sum of Rs.34,830/-
towards the traveling expenses. It is evident that the
incidental expenses which could not find place in the form of
bills were not considered by the Tribunal. It is noticed that the
petitioner was traveling from Arasikere to Hassan and Arasikere
to Bengaluru. Therefore, the traveling expenses is enhanced
and rounded off to Rs.50,000/-.
16. A sum of Rs.20,000/- has been awarded by the
Tribunal towards food, attendant and nourishment expenses
which appears to be proper.
17. The petitioner contends that he was doing milk
vending business and earning Rs.8,000/- per month and had
produced Exs.P2 and P3 to show the same. Evidently, he was
aged about 23 years at the time of the accident and was doing
milk vending business. The Tribunal has taken the income of
MFA No. 4097 of 2015
the petitioner to be at Rs.6,000/- per month as Ex.P2 and P3
did not show the exact income. The guidelines issued by KSLSA
concerning the settlement of the cases before the Lok-Adalath
are in general consonance with the Minimum Wages Act.
Therefore, the notional income has to be taken as per the
norms adopted by the Karnataka State Legal Services Authority
for settlement of cases at Lok Adalaths and hence, the income
of the petitioner at the relevant point of time should have been
taken at Rs.8,000/- per month.
The Tribunal has assessed the functional disability at 39%
by taking 1/3rd of the disability stated by the Medical experts.
It is relevant to note that the evidence of CWs 1 and 2 showed
that the disability to right lower limb was 20%, left lower limb
was 20% and 80 to 85% due to fracture of pubic rami, hip
bone etc. It is not known how the Tribunal assessed the
functional disability at 39%. The nature of the injury and the
sufferings of the petitioner can very well be assessed by the
evidence of Medical officers, who were examined as CWs 1 and
2. The Medical Officer Dr. Venkatesh Murthy says that the
petitioner has lost bladder control and there is severe injury to
the urethra. It is also evident that the petitioner cannot beget
MFA No. 4097 of 2015
a child. The urologist was examined through a court
commissioner. Under these circumstances, the functional
disability of the petitioner assessed by the Tribunal at 39%
appears to be without any basis. It is evident that the petitioner
cannot move freely and he has lost the bladder control
resulting in constant use of catheter or such other modes.
Hence, in the considered opinion of this Court, the functional
disability of the petitioner has to be taken at 50%. Therefore,
the compensation under the head of loss of future income is
calculated as: Rs.8,000/- x 12 x 18 x 50%= 8,64,000/-.
18. The Tribunal has awarded a sum of Rs.20,000/-
under the head of loss of amenities in life and Rs.25,000/-
towards loss of marriage prospects and Rs.2,00,000/- towards
future medical expenses. The loss of marriage prospects/
marital happiness has to be enhanced to Rs.50,000/-. The
other heads need no enhancement.
19. Consequent upon the income to be at Rs.8,000/-
per month, the loss of income during laid up period for a period
of six months has to be enhanced to Rs.48,000/-. Hence, the
petitioner is entitled to the modified compensation as below:
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MFA No. 4097 of 2015
Medical expenses Rs. 1,45,730/-
Pain sufferings Rs. 1,17,000/-
Loss of future earning Rs. 8,64,000/-
Loss of amenities Rs. 20,000/-
Conveyance, food, nourishment and Rs. 20,000/-
attendant charges
Loss of laid up period Rs. 48,000/-
Loss of marriage prospects Rs. 50,000/-
Traveling expenses Rs. 50,000/-
Future medical expenses Rs. 2,00,000/-
Total Rs. 15,14,730/-
Less: Awarded by the Tribunal Rs. 11,04,000/-
Enhancement Rs. 4,10,730/-
20. Thus, a sum of Rs.4,10,730/- is awarded as
compensation in addition to what has been awarded by the
Tribunal. Hence, the following:
ORDER
(i) Appeal is allowed in part
(ii) The impugned judgment and award dated
01-01-2015 passed in MVC No.1174/2013 by the
Tribunal is modified by enhancing the compensation
of Rs.4,10,730/- together with interest at 6% p.a.
from the date of petition till the date of deposit.
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MFA No. 4097 of 2015
(ii) Respondent-KSRTC is directed to deposit
the compensation amount together with interest
within a period of 4 weeks from the date of receipt of
the copy of this order.
(iii) All other conditions and apportionment
remain unaltered.
Sd/-
JUDGE
tsn*
