Karnataka High Court
T Kumaraswamy @ Kumara vs The Managing Director (Na) on 2 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 7492 of 2018
C/W MFA No. 5967 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.7492 OF 2018(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.5967 OF 2018(MV-I)
IN MFA NO.7492/2018
BETWEEN:
T. KUMARASWAMY @ KUMARA,
S/O THIMMANNA @ THIMMAIAH
AGED ABOUT 26 YEARS,
R/AT HETTENAHALLIPALYA,
GULUR POST, GULURU HOBLI,
TUMKUR TALUK & DISTRICT - 572 101.
...APPELLANT
(BY SRI. SHANTHARAJ K., ADVOCATE)
AND:
THE MANAGING DIRECTOR (N.A.).,
K.S.R.T.C., BENGALURU,
CHIKKAMAGALURU DIVISION,
Digitally signed by JAI
JYOTHI J SERVICE ADDRESS,
Location: HIGH COURT
OF KARNATAKA
THE MANAGER,
K.S.R.T.C.,
TUMAKURU DEPOT,
K.S.R.T.C. BUS STAND,
ASHOKA ROAD,
TUMAKURU - 572 101.
...RESPONDENT
(BY SRI. CHANDAN K., ADVOCATE FOR
SRI. AMIT DESHPANDE, SENIOR ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19/10/2017, PASSED IN MVC
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MFA No. 7492 of 2018
C/W MFA No. 5967 of 2018
NO.1483/2014, ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.5967/2018
BETWEEN:
THE MANAGING DIRECTOR,
K.S.R.T.C, K.H. ROAD,
BANGALORE - 560 027,
REP. BY CHIEF LAW OFFICER,
KSRTC, CENTRAL OFFICE,
BANGALORE - 560 027.
...APPELLANT
(BY SRI. CHANDAN K., ADVOCATE FOR
SRI. AMIT DESHPANDE, SENIOR ADVOCATE)
AND:
T. KUMARASWAMY @ KUMARA,
S/O THIMMANNA @ THIMMAIAH
AGED ABOUT 26 YEARS,
R/AT HETTENAHALLI PALYA,
GULUR POST, GULURU HOBLI,
TUMAKUR DISTRICT.
...RESPONDENT
(BY SRI. SHANTHARAJ K., ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:19.10.2017 PASSED IN MVC
NO.1483/2014 ON THE FILE OF THE 3RD ADDITIONAL SENIOR
CIVIL JUDGE, MACT, TUMAKURU, AWARDING COMPENSATION
OF RS.3,51,600/- WITH INTEREST AT 6% P.A. FROM DATE OF
PETITION TILL ITS REALIZATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 7492 of 2018
C/W MFA No. 5967 of 2018
JUDGMENT
MFA No.7492/2018 is filed by the claimant seeking
enhancement of compensation awarded by the III
Additional Senior Civil Judge and the Motor Accident
Claims Tribunal, Tumkur, by judgment and award dated
19.10.2017, in MVC No.1483/2014 and MFA
No.5967/2018 is filed by the KSRTC challenging the
judgment and award of the Tribunal contending that the
bus has not caused the said accident.
2. It is the case of claimant that on 14.02.2014,
the claimant was traveling in a KSRTC bus bearing Reg.
No.KA-18-F-0658 from Bengaluru to his native place as a
paid passenger and when the said bus reached the toll
plaza at Parle-G Factory, on NH-4, Bengaluru - Tumakuru
road, at about 7.45 p.m., the driver of the said Bus drove
the same in a rash and negligent manner and dashed to
the Toll gate wall, as a result, the window glass of the bus
was broke and the claimant sustained injuries on his right
hand and thereby, the said bus has caused the accident.
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The claimant had filed claim petition under Section 166 of
the MV Act and the Tribunal has awarded compensation of
Rs.3,51,600/- with interest at the rate of 6% per annum
from the date of petition till its realization.
3. Heard the arguments of both sides and perused
the materials on record.
4. Learned counsel for the KSRTC submitted that the
driver of the bus has not caused the accident as stated by
the claimant in the claim petition and the bus is not
involved in the said accident. He further submitted that in
the MV Report in C.C.No.1052/2014 produced at Ex.R.1,
there are no damages found on the right rear side of the
bus. He further submitted that the driver of the bus was
acquitted in the criminal case. Therefore, submitted that
the driver of bus has not caused the accident and claimant
has falsely implicated the bus and hence, prays to allow its
appeal by setting aside the judgment and award of the
Tribunal.
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5. On the other hand, learned counsel for the
claimant submitted that the claimant was sitting in the last
seat towards right side of the bus and the driver of the bus
has driven the bus with high speed and in a rash and
negligent manner and while crossing Toll Gate after
making payment to the Toll fee, the right rear side of the
bus was frictioned with the toll gate wall and the
claimant's right hand elbow was fractured and this is
rightly considered by the Tribunal and awarded
compensation. He further submitted that due to rash and
negligent driving of the KSRTC bus by its driver, the
accident was caused. Hence, prays to allow his appeal
and dismiss the appeal filed by the KSRTC.
6. The accident is caused on 14.02.2014. The
claimant was traveling in the said KSRTC bus by sitting in
the last rear seat of the bus on the right side of the
window and the driver of the KSRTC bus after payment of
toll fee in the toll plaza moved the bus, resultantly the
right side rear portion of the bus got frictioned with the
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wall of the toll gate wall and therefore, claimant sustained
injuries to the right hand elbow. The friend of claimant,
who was also traveling along with the claimant has lodged
the complaint on 17.02.2014. The police have filed charge
sheet against the driver of KSRTC bus after investigation.
Mere acquittal of the driver of bus is not a ground to
disbelieve that there was accident and the claimant has
sustained injuries in the accident. In the present case, the
evidence in the claim proceedings are re-appreciated on
the theory of preponderance of probabilities to ascertain
whether the claimant has sustained injuries in the accident
caused by the alleged vehicle. From the evidence on
record, as discussed above, it is proved that the claimant
has sustained injuries in the accident as stated in the
claim petition.
7. Ex.R.1 is the MV Report. Learned counsel for
the KSRTC submitted that there is no damage found on
the bus. Therefore, he denies the occurrence of the
accident caused by the offending KSRTC Bus. The
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accident is caused on 14.02.2014 and the bus was
subjected to motor vehicle inspection by the Regional
Authority on 28.04.2014 i.e., after 2½ months from the
date of accident. Quite naturally, during this interregnum
period, the KSRTC authority might have got repaired the
bus. Therefore, just because physical damage is not seen,
it cannot be the reason to suspect the case of claimant
when there is much gap of 2½ months from the date of
accident till the date of inspection of the bus by the motor
vehicle authority as there is every possibility of getting
repaired the bus and due to which, physical damage could
not be seen.
8. Further learned counsel for the KSRTC
submitted that in the complaint and FIR the bus number is
mentioned as 'KA 06 F 856' and in the charge sheet the
bus number is mentioned as 'KA 18 F 658'. As such,
contended that claimant has shown different bus numbers
and therefore, bus is not involved in the accident. While
filing the claim petition the claimant has mentioned bus
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number as 'KA 06 F 856' but later on claimant got
amended the claim petition by mentioning the bus number
as 'KA 18 F 658'.
9. Upon considering these different numbers,
when the case is considered in its background, it is proved
that the complainant who has lodged the complaint is not
literate persons so as to mention the number minutely.
Complaint is always not an encyclopedia. During the
course of investigation the true facts are revealed.
Therefore, just because there is change in number from
complaint to charge sheet, then alteration of such number
is whether going to the root of the case or not, is to be
considered. Admittedly the claimant and his friend are
mason by profession and they are not well versed in
writing and reading.
10. The difference in mentioning the number is,
interchange of numbers from '856' to '658' and from 'KA
06' to 'KA 18'. This change in number is not a big
difference so as to go to the very root of the case. The
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complainant is also working as a mason, therefore, when
some numbers are interchanged or numbers appear in
similar font, then there would not be exact notice and
noting down of the numbers, but upon investigation by the
police the bus involved is proved to be 'KA 18 F 658' which
also belonged to KSRTC and quite naturally the claimant
might have got amended the petition. Therefore, this
does not go to the very core of the case to disbelieve the
case of claimant. Therefore, upon considering the
evidence on record on all its preponderance of
probabilities, it is proved that the claimant has sustained
injuries in the said accident and it is rightly considered by
the Tribunal, which needs interference by this Court.
11. The Tribunal has awarded compensation under
various heads as under:
Sl. Amount in
Particulars
No. Rs.
1 10% future loss of income 1,29,600/-
2 Pain and sufferings 25,000/-
3 Medical expenses 1,54,000/-
4 Conveyance, attendance and other
expenses 10,000/-
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5 Loss of comforts and amenities 15,000/-
6 Loss of income for 3 months 18,000/-
TOTAL 3,51,600/-
12. From the medical evidence on record it is
proved that the claimant has suffered fracture of right
elbow. The claimant is a mason by profession and the
Tribunal has noticed that the claimant is not able to
stretch his right hand. Therefore, considering the nature
of injuries sustained the compensation of Rs.40,000/- is
awarded for the injuries, pain and sufferings as against
Rs.25,000/- awarded by the Tribunal.
13. Based on the medical bills produced, the
Tribunal has awarded compensation of Rs.1,54,000/-
towards medical expenses, which is just and correct and
needs no interference. Hence, same is kept intact.
14. The claimant was an inpatient for a period of 22
days, accordingly compensation of Rs.20,000/- is awarded
towards 'incidental expenses' as against Rs.10,000/-
awarded by the Tribunal.
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15. The Tribunal has awarded compensation of
Rs.15,000/- towards loss of amenities, which is on lesser
side. Therefore, compensation of Rs.50,000/- is awarded
under the head 'loss of amenities'.
16. The doctor who has given evidence before the
Tribunal is a treated doctor and he has assessed physical
disability at 51% towards right upper limb and 17%
towards whole body, but the Tribunal has taken only 10%
as physical disability. The claimant is a mason by
profession and sustained fracture of right hand elbow and
is not able to stretch his right hand. There is no other
fracture sustained by the claimant. Therefore, considering
the nature of injuries sustained and disability suffered
clubbed with the profession of the claimant as mason, by
applying the principles of Rajkumar and RAJ KUMAR v
AJAY KUMAR & ANR1 it is just and proper to take 15%
as functional disability. The accident is caused in the year
(2011) 1 SCC 343
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2014 and therefore, as per Karnataka State Legal Services
Authority the notional income is taken at Rs.8,500/- per
month. The claimant was aged 22 years as on the date of
the accident therefore appropriate multiplier applicable is
'18'. Hence, 'loss of future income due to disability' is
reassessed as under:
Rs.8,500/- x 15% x 18 x 12 = Rs.2,75,400/-
Thus, the claimant is entitled for compensation of
Rs.2,75,400/- under the head 'loss of future income due to
disability'.
17. Further, compensation of Rs.25,500/-
(Rs.8,500/- x 3) is awarded towards 'loss of income during
laid up period' as against Rs.18,000/- awarded by the
Tribunal.
18. Thus, the claimant is entitled for compensation
under various heads as follows:
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Awarded Awarded
Sl.
Particulars by the by this
No.
Tribunal Court
1 Loss of future income due
to disability 1,29,600/- 2,75,400/-
2 Pain and sufferings 25,000/- 40,000/-
3 Medical expenses 1,54,000/- 1,54,000/-
4 Conveyance, attendance
and other expenses 10,000/- 20,000/-
5 Loss of comforts and
amenities 15,000/- 50,000/-
6 Loss of income during laid
up period 18,000/- 25,500/-
TOTAL 3,51,600/- 5,64,900/-
19. The Tribunal has awarded compensation of
Rs.3,51,600/-, but the appellant/claimant is entitled to
total compensation of Rs.5,64,900/-. Hence, the
appellant/claimant is entitled to enhanced compensation of
Rs.2,13,300/- (Rs.5,64,900/- - Rs.3,51,600/-). Therefore,
the appellant/claimant is entitled to enhanced
compensation of Rs.2,13,300/- along with interest at the
rate of 6% per annum from the date of petition till the
date of realization, in addition to what has been awarded
by the Tribunal.
20. Accordingly, I proceed to pass the following:
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ORDER
i. Appeal filed by the claimant in MFA
No.7492/2018 is allowed-in-part.
ii. Appeal filed by the KSRTC in MFA
No.5967/2018 is dismissed.
iii. The impugned judgment and award
dated 19.10.2017 passed by the III
Addl. Senior Civil Judge and MACT,
Tumkur, in MVC No.1483/2014, is
modified to the extent that the
appellant/claimant is entitled to
enhanced compensation of
Rs.2,13,300/- along with interest at
the rate of 6% per annum from the date
of petition till the date of realization, in
addition to what has been awarded by
the Tribunal.
iv. Amount in deposit shall be transferred to
the Tribunal forthwith.
v. No order as to costs.
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vi. Registry is directed to transmit the TCR
along with copy of this order to the
Tribunal forthwith.
vii. Draw award accordingly.
Sd/-
JUDGE
MH/DR
CT:SNN
