Karnataka High Court
Smt P Anitha vs Bharatha Rao on 5 April, 2024
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NC: 2024:KHC:14353
MFA No. 6562 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 6562 OF 2017 (MV-I)
BETWEEN:
SMT P ANITHA
AGED ABOUT 37 YEARS
W/O MR RAVI, RAMAMANDIRA ROAD
SHIVAPURA, MADDUR, NOW R/A NO.149
GAYATHRIPURAM, MYSORE - 570 006 ...APPELLANT
(BY SRI. NAGARAJ R C., ADV.)
AND:
1. BHARATHA RAO
S/O YASHVANTHA RAO
AGED ABOUT 54 YEARS
BLOCK NO.2, POLICE QUARTERS
KRISHNANADANAGAR
YESHWANTHPUR
BENGALURU-560 022
2. T MAHAROOF
S/O T P ASSOO, MAJOR
Digitally signed by NO.20/2, A V ROAD
HARIKRISHNA V KALASIPALYAM, BENGALURU - 560 003
Location: HIGH COURT
OF KARNATAKA 3. ICICI LOMBARD GENERAL INSURANCE CO LTD
ICICI LAMBARD HOUSE 414, VEER SAVARKAR
MARG, NEAR SIDDI VINAYAKA TEMPLE
PRAVHADEVI, MUMBAI-400 025
BRANCH OFFICE NO.204
MYTHRI ARCADE, NEAR SARASWATHI
THEATER, SARASWATHIPURAM
MYSORE-570 006
REP. BY ITS BRANCH MANAGER
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MFA No. 6562 of 2017
4. DIVISIONAL CONTROLLER
KSRTC, MANDYA DIVISION
MANDYA - 560 062 ...RESPONDENTS
(BY SRI.PRADEEP FOR R3;
SRI.G.LAKSHMEESHA RAO, ADV. FOR R4
NOTICE TO R1 AND R2 DISPENSED WITH
VIDE ORDER DATED 18.10.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.04.2017
PASSED IN MVC NO.1073/13 ON THE FILE OF THE JUDGE,
ADDITIONAL SMALL CAUSES, AND SENIOR CIVIL JUDGE,
MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged
the judgment and award dated 19.04.2017 in
M.V.C.No.1073/2017 passed by the Addl.Small
Causes and Senior Civil Judge and M.A.C.T., Mysuru
('the Tribunal' for short).
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
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3. Brief facts of the case are, on 20.09.2012 at
about 10.30 p.m., while the petitioner was travelling
in KSRTC bus bearing registration No.KA-09/F-4703
from Mandya to Maddur, near Maddur Bus Stand,
private tourist bus bearing registration No.KA-01/AA-
8211 dashed against the KSRTC bus head-on
injuring the inmates of the bus. Petitioner was
treated as inpatient at Government Hospital, Maddur
and Vikram Hospital, Mandya and Mysuru and she
sustained disability affecting her earning capacity.
The petitioner approached the Tribunal for grant of
compensation of Rs.24,50,000/- against both buses.
3.1. Claim was opposed by the Insurance
company of Tourist bus on the ground that complete
negligence is on the part of the driver of the KSRTC
bus; the driver of the Tourist bus did not possess
driving licence and it can avoid its liability.
3.2. The insurer of KSRTC bus opposed the
claim on the ground that complete negligence is on
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the part of the private Tourist bus and the KSRTC is
not liable to pay any compensation.
3.3. The Tribunal after holding enquiry and by
hearing both parties by the impugned judgment
awarded global compensation of Rs.1,50,000 /- with
interest at 9% p.a. attributing negligence against the
private bus at 40% and 60% against the KSRTC bus.
Pleading inadequacy and seeking enhancement of
compensation, the petitioner has filed this appeal on
various heads.
4. Heard the arguments of Sri.R.C.Nagaraj,
learned counsel for the petitioner and Sri.B.Pradeep,
learned counsel for Insurance Company and
Sri.G.Lakshmeesha Rao, learned counsel for KSRTC.
5. It is the contention of the learned counsel for
the petitioner that the petitioner has suffered
multiple fractures; she was working as Operator in a
factory earning Rs.12,000/- per month. She was
aged 33 years and the medical evidence is placed
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before the Tribunal to explain the disability sustained
by her. Inspite of it, the Tribunal has awarded global
compensation of Rs.1,50,000/- instead of assessing
compensation under different heads, which is against
the principles of assessment of compensation in case
of injury affecting the earning capacity of the
injured.
6. Per contra, learned counsel for the Insurance
Company of the private Tourist bus has contended
that the Tribunal has considered the fact that the
petitioner has not left the job, she is continued to do
the same, thereby the injuries have not affected her
earning capacity. Under such circumstances, having
regard to the nature of injuries, assessment of global
compensation is proper. It is further contended that
the interest awarded at 9% is excess and it has to
be reduce ed to 6%.
7. Learned counsel for the KSRTC has
contended that complete negligence is on the part of
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private Tourist bus, but the Tribunal has attributed
60% negligence on the part of KSRTC, which is
untenable. The injuries sustained by the petitioner
in the accident are not affecting her earning
capacity, thereby the Tribunal has rightly awarded
global compensation, which requires to be
confirmed.
8. I have given my anxious consideration to the
arguments advanced on behalf of the parties and
also perused the materials on record.
9. The undisputed fact is that the petitioner
was one of the inmates of KSRTC bus and it was met
with an accident in front of KSRTC Bus Stand,
Maddur, on Mysore-Bangalore Highway on
20.09.2012 at 10.30 p.m., wherein the petitioner
has sustained injuries including death of driver of
KSRTC bus. The allegations made in the charge
sheet under Ex.P6 clearly points out that at the time
of accident, the KSRTC bus which came from Mysore
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side towards Bangalore, without observing incoming
traffic took sudden right turn towards KSRTC Bus
Stand, Maddur, at the same time, private Tourist bus
driven by respondent No.1 came in a rash and
negligent manner thereby contributed for the
accident. Mahazar at Ex.P7 stands in support of the
allegations made in the charge sheet. The inmates
of both buses have sustained injuries including death
of driver of the KSRTC bus.
10. I have carefully perused the impugned
judgment and award. The Tribunal after considering
the oral and documentary evidence specifically
averred and recorded its finding that the negligence
on the part of the driver of the KSRTC bus is 60%
and that of private Tourist bus at 40%, which is in
conformity with the evidence on record, thereby I
am inclined to accept the finding recorded by the
Tribunal to that extent.
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11. Ex.P13 is the wound certificate pertaining
to the petitioner. Its recitals go to show that she has
suffered anterior column fracture with right SI joint,
inferior pubic rami fracture right and fracture of 2 nd
to 8th ribs left. She was under hospitalization for 19
days. After the accident, the nature of injuries will
certainly lay her to rest for a minimum period of six
months.
12. The evidence of PW-6/Dr.N.Nithyananda
Rao, Orthopaedic Surgeon, Mysore, the treated
doctor of the petitioner points out that the petitioner
has sustained injuries referred supra and Ex.P26 is
the disability certificate issued by the said doctor,
which shows that the injury has disabled her to an
extent of 45% of the limb and 15% of the whole
body. According to him, the petitioner had visited
Vikram Jeev Hospital, Mysore, for follow-up
treatment on several occasions from 18.10.2012 to
22.07.2016. She requires implant removal for
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which she requires Rs.60,000/-. Ex.P17 is the pay
slip pertaining to the petitioner, the recitals of which
go to show that the petitioner is a permanent
employee of Eveready Industries India Limited -
Powercell Division and she was paid gross salary of
Rs.9,421/- such as basic, DA, HRA, etc., for the
month of August 2012. Apart from her employment,
she has not placed any evidence explaining that she
is earning Rs.12,000/- per month. Hence, for all
practical purposes, income of the petitioner at the
time of accident is taken at Rs.9,421/-.
13. The Tribunal though considered that the
petitioner was inpatient for 19 days, she had taken
follow-up treatment and the amount that she has
spent for incidental expenses, but ultimately fell to
award global compensation of Rs.1,50,000/- which,
in the facts and circumstances of the case, may not
be correct. A person, who suffered injury in a road
traffic accident, has to be awarded with just
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compensation and award of compensation shall not
be a bonanza nor a peanut. Hence, under different
heads, compensation has to be assessed instead of
global compensation.
14. As referred supra, the petitioner has
suffered multiple fractures, she has undergone
ordeal of pain and suffering, loss of amenities and
discomfort. Hence, towards pain and suffering, a
sum of Rs.80,000/-; towards loss of amenities and
discomfort, Rs.80,000/- has to be assessed. The
medical bills comes to Rs.15,312/- and the same has
to be reimbursed. The petitioner had required an
attendant during hospitalization and also post-
hospitalization. Hence, attendant charges is
assessed at Rs.10,000/-. In order to recover from
the ailment, proper food and nourishment is
required. Hence, Rs.10,000/- is assessed towards
food and nourishment. As stated by PW-6, the
petitioner had visited hospital for follow-up
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treatment, for which she has spent money towards
conveyance charges. Hence, Rs.10,000/- is
assessed towards conveyance charges. For implant
removal, though the doctor has made exorbitant
assessment, Rs.25,000/- is assessed towards future
medical expenses. The nature of injuries sustained
by a lady requires laid-up for minimum six months.
Hence, loss of income during laid-up period comes to
Rs.56,526/- (Rs.9,421/- x 6).
15. The medical evidence though states 15%
whole body disability, the evidence on record points
out that the petitioner has continued her job and the
injury has not affected her earning capacity. Hence,
there are no grounds to award compensation for loss
of future earning. Accordingly, the petitioner is
entitled to compensation under different heads as
follows:
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Sl. Particulars Rs.
No.
1 Pain and sufferings 80,000/-
2 Medical expenses 15,312/-
3 Attendant charges 10,000/-
4 Food and nourishment 10,000/-
5 Conveyance 10,000/-
6 Loss of income during laid-up period 56,526/-
7 Future medical expenses 25,000/-
8 Loss of amenities and discomfort 80,000/-
Total 2,86,838/-
Less: Awarded by Tribunal 1,50,000/-
Enhanced by 1,36,830/-
rounded off
to
1,37,000/-
This is the just compensation that the petitioner is
entitled to in the facts and circumstances of the
case.
16. As regards rate of interest is concerned, the
Tribunal has awarded interest at 9% p.a. As there is
no appeal by the Insurance Company or the KSRTC,
it is not proper to reduce the rate of interest, but
insofar as enhanced compensation is concerned, the
petitoner is entitled for interest at 6% per annum.
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17. The finding of the Tribunal fixing liability on
the part of the private bus at 40% and that of
KSRTC bus at 60% is kept intact. Accordingly, both
Insurance Company of the private bus and the
KSRTC bus has to pay ehanced compensation at the
ratio of 40 : 60. Accordingly, the appeal merits
consideration. In the result, the following:
ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment and award is
modified.
iii) Petitioner is entitled to enhanced
compensation of Rs.1,37,000/- with
interest at 6% per annum on the
enhanced compensation from the date
of petition till its realization.
(iv) The third respondent/insurer and fourth
respondent/KSRTC are directed to
deposit the enhanced compensation at
the ratio of 40 : 60 within a period of
eight weeks from the date of receipt of
a certified copy of this judgment.
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(v) The amount in deposit, if any, shall
be transmitted to the Tribunal along
with records forthwith.
Sd/-
JUDGE
KNM
CT:HS
