Karnataka High Court
Sri.P.Keshava Bhat vs Sri.T.Prakash on 8 February, 2024
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NC: 2024:KHC:5478
MFA No. 5218 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 5218 OF 2013 (MV)
BETWEEN:
SRI.P.KESHAVA BHAT,
AGED ABOUT 61 YEARS,
SON OF LATE P.MAHABALESHWARA BHAT,
RESIDENT OF GUNDU RAO COMPOUND,
MADIKERI - 571 201,
KODAGU DISTRICT.
...APPELLANT
(BY SRI.JAGADISH BALIGA N., ADVOCATE)
AND:
1. SRI.T.PRAKASH,
AGED ABOUT 48 YEARS,
Digitally
signed by SON OF KELAN,
BHARATHI S
Location: BUS-DRIVER,
HIGH KERALA STATE ROAD TRANSPORT CORPORATION,
COURT OF
KARNATAKA KANNUR - 670 003,
KERALA.
2. THE KERALA STATE ROAD TRANSPORT
CORPORATION, EAST PORT,
TRIVANDRUM - 695 023, KERALA,
REPRESENTED BY ITS MANAGING DIRECTOR.
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MFA No. 5218 of 2013
3. THE ORIENTAL INSURANCE COMPANY LIMITED.,
OPPOSITE TO TOWN HALL,
CHICKPET, MADIKERI - 571 201,
RERPESENTED BY ITS MANAGER.
...RESPONDENTS
(R1 SERVED AND UNREPRESENTED)
(BY SRI.B.S UMESH FOR R3.,ADVOCATE)
(BY SRI.H.M MANJUNATH FOR R2.,ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.12.2012 PASSED IN MVC
NO.212/2008 ON THE FILE OF THE AD-HOC DISTRICT JUDGE,
PRESIDING OFFICER, FAST TRACK COURT, KODAGU,
MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant challenging
the judgment and award dated 27.12.2012 passed in
MVC.No.212/2008 by the Ad-hoc District Judge and
Presiding officer, Fast Tract Court, Kodagu, Madikeri1,
Hereinafter referred as 'Tribunal'
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challenging the findings of the Tribunal on liability and
seeking for enhancement of compensation.
2. For the sake of convenience, the parties herein
are referred to as per their ranking before the Tribunal.
3. The claimant instituted the claim proceedings
claiming compensation for the injuries sustained in the
road traffic accident, which occurred on 16.03.2008. The
claimant was the driver of the Maruthi Omni Car bearing
Reg.No.KA-03-M-9613, which hit the bus causing accident
in question. The driver and owner and cum insurer of the
bus was arrayed as Respondent Nos.1 and 2 respectively.
The insurer of the Maruthi Van was arrayed as Respondent
No.3 before the Tribunal. The Tribunal by judgment and
award dated 27.12.2012 allowed the claim petition and
awarded a total compensation of `1,51,100/- together
with interest at 6% per annum. However, Tribunal
recorded a finding that the claimant/driver of the Maruthi
Van was negligent to the extent of 20% in causing the
accident and the driver of the bus was negligent to the
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extent of 80% in causing the accident in question. Hence,
it was held that the claimant was entitled to 80% of the
compensation assessed in a sum of `1,20,880/-. Being
aggrieved the claimant has filed the appeal assailing the
finding of negligence as well as seeking enhancement of
compensation award.
4. Learned counsel for the Appellant/claimant
contends that having regard to the manner in which the
accident occurred, the finding of negligence to the extent
of 20% on the claimant, who was driver of the Maruthi
Van was erroneous and liable to be set aside. He further
submits that the compensation awarded on various heads
assessed by the Tribunal is on the lower side.
5. Per contra learned counsel for Respondent
Nos.1 and 2, who are drivers and owner cum insurer of
the bus submits that the judgment and award of the
Tribunal is just and proper and seeks for dismissal of the
above appeal.
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6. Learned counsel for Respondent No.3 submits
that there is no liability fastened on the Respondent No.3,
who is the insurer of the Van, since the claimant was the
driver of the Maruthi Van.
7. The submissions of the learned counsels have
been considered and material on record including the
records of Tribunal have been perused. The questions that
arise for consideration are:
i. "Where the finding of negligence by the
Tribunal is erroneous and liable to be interfere with.
ii. Whether the quantum of compensation
assessed by the Tribunal is just and proper."
Reg. question No.(i)
8. The Tribunal, on appreciating the manner in
which the accident has occurred, noticed that the width of
the road is 15 feet and that the bus was loaded with
passengers and was coming in the down gradient of the
road and the Maruthi Van was moving on the up gradient.
That the spot of the accident is a curve of the road.
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9. It is forthcoming, that the driver of the bus was
examined as RW-1, and claimant-driver of the Van
examined himself as PW-1 and both have stated regarding
the manner of occurrence of the accident. The mahazar is
marked as Exs.P.3. Ex.P.4 is the sketch which the manner
and place in which the accident occurred. It is also noticed
that the bus is a bigger vehicle as compared to the van
and driver of the bus has admitted that he saw the van
coming at distance of 10 to 15 meters and hence should
have taken sufficient care, while going on the road which
was a curve. Considering all the aforementioned factors
the Tribunal has assessed the negligence at 80% on driver
of the bus and 20% on the claimant, who is the driver of
the Maruthi van.
10. Upon a re-appreciation of the oral and
documentary evidence on record with regard to the
manner and place which the accident occurred, it is
noticed that the finding of negligence by the Tribunal is
just and proper and no ground is made out to interfere
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with the same. Hence, question No.(i) is answer in the
'negative'.
Reg. question No.(ii)
11. The claimant is aged 58 years. Hence, the
appropriate multiplier is 9 as assessed by the Tribunal.
12. The claimant has sustained fracture of right
ankle and fracture of fibular neck. A perusal of the
discharge summary (Ex.P.12), disability certificate
(Ex.P.11) and the evidence of the doctor (CW-1) discloses
that the injuries were surgically treated and claimant
requires another surgery for removal of the implant. The
doctor has stated that the fracture is united but he has
restriction of 35 degree of right knee flexion and 10
degree of restriction of the right ankle. The doctor has
assessed the disability at 15%. The Tribunal upon
appreciation has assessed the functional disability at 10%,
which is just and proper.
13. The Tribunal has assessed the monthly income
of the claimant at `3,000/-. The claimant is stated to be
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running a shop and doing business. However, no
documents have been produced to prove the income. In
the absence of any documents to prove the income, the
same is required to be assessed as notional income as per
the chart used for settlement of cases in the Lok-Adalath
by the Legal Services Authority and having regard to the
date of accident the income is re-assessed at `4,500/-P.M.
14. The claimant has taken treatment as an
inpatient for a total period of 66 days at Thejaswini
Hospital Mangalore.
15. Having regard to the aforementioned, the
compensation is re-assessed as follows:
15.1. The Tribunal has awarded a sum of
`25,000/- towards pain and suffering and
`40,000/- towards medical expenses which is
just and proper.
15.2. The Tribunal has awarded a sum of
`6,600/- towards attendent charges, `16,500/-
towards food and nutrition and `3,600/- towards
Taxi charges to go to the hospital. It is just and
proper that the compensation towards all the
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said aspects be re-assessed at `30,000/- having
regard to the nature of injuries and period of
treatment.
15.3. The Tribunal has awarded a sum of
`2,400/- towards loss of earning during laid up
period and `6,600/- towards loss of earning
during period of hospitalization. The laid up
period is taken as 3 months and loss of income
is re-assessed as (4,500 X 3 ) =`13,500/-.
15.4. The loss of future earning capacity
is re-assessed as (4500 X 12 X 9 x 10%) =
`48,600/- as against `32,400/- awarded by the
Tribunal.
15.5. The compensation awarded towards
future medical expenses and miscellaneous
expenses of `8,000/- and `2,000/- is just and
proper.
15.6. The Tribunal has been awarded a
sum of `8,000/- towards loss of happiness and
future amenities which is re-assessed as
`15,000/-.
16. In view of the aforementioned, the quantum of
compensation is reassessed as follows:
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Sl.No. Heads Amount Amount
awarded by awarded by
the Tribunal this Court (`)
(`)
1. Pain and suffering 25000 .00 25000.00
2. Towards assistant 26700 .00 30000.00
charges, food and
nutrition and taxi
charges
3. Loss of earning 9000 .00 13500 .00
during healup
period and loss of
earning during
hospitalization
4. Medical expenses 40000 .00 40000 .00
5. Future medical 10000 .00 10000.00
expenses and
miscellaneous
expenses
6. Loss of happiness 8000.00 15000.00
and future
amenities
7. Loss of earning due 32400.00 48600.00
to 10% disability
Total 151100.00 182100.00
17. Having regard to the finding of the negligence,
respondent Nos.1 and 2 are liable to pay 80% of the same
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in a sum of `1,45,680 which is rounded up to `1,46,000/-
as against `1,20,800/- awarded by the Tribunal.
18. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated 27.12.2012
passed in MVC No.212/2008 on the file of the
Ad-hoc District Judge and Presiding Officer, Fast
Track Court, Kodagu, Madikeri, is modified to
the extent stated herein. In all other respects,
the judgment and award of the Tribunal
remains unaltered;
iii) The appellant/claimant is entitled to enhanced
compensation of `28,520/- with interest at 6%
per annum from the date of petition till its
realization in addition to the compensation
awarded by the Tribunal.
iv) Respondent No.3/Insurance Company is
directed to deposit the said compensation
together with accrued interest within a period
of six weeks from the date of receipt of a copy
of this judgment;
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v) After deposit, the entire enhanced
compensation with accrued interest shall be
disbursed to the appellant/claimant;
vi) The Registry to draw the modified award
accordingly.
vi) No costs.
Sd/-
JUDGE
PHM
