Karnataka High Court

Managing Director Ksrtc vs Vasanth Kumar on 15 February, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                   MFA No. 8689 of 2022
                                               C/W MFA No. 3708 of 2022



               IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                  DATED THIS THE 15TH DAY OF FEBRUARY, 2024
                                      BEFORE
                THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
             MISCELLANEOUS FIRST APPEAL NO.8689 OF 2022(MV-I)
                                  C/W
             MISCELLANEOUS FIRST APPEAL NO.3708 OF 2022(MV-I)
             IN MFA NO.8689/2022:
             BETWEEN:
             MANAGING DIRECTOR
             KSRTC, SHANTHI NAGAR
             BENGALURU-560 027

             REPT. HEREIN BY ITS
             CHIEF LAW OFFICER
             BENGALURU
                                                            ...APPELLANT
             (BY SRI SHANKAR GOUD G., ADVOCATE)
             AND:
             VASANTH KUMAR
             S/O.LATE DASAPPA
             AGED ABOUT 31 YEARS
             R/AT NO.16, ANGANAWADI
Digitally    DASANAPURA
signed by B  BENGALURU NORTH
LAVANYA
             BENGLAURU-562 123
Location:                                                 ...RESPONDENT
HIGH
COURT OF    (BY SRI RAJU S., ADVOCATE)
KARNATAKA
                  THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
             SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
             JUDGMENT AND AWARD DATED 06.01.2022 PASSED IN MVC.
             NO.2850/2020 BY XI ADDITIONAL SMALL CAUSES JUDGE AND
             ADDITIONAL MACT, BENGALURU, (SCCH-12).
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                                           NC: 2024:KHC:6650
                                       MFA No. 8689 of 2022
                                   C/W MFA No. 3708 of 2022



IN MFA NO.3708/2022:
BETWEEN:
SRI VASANTH KUMAR
S/O.LATE DASAPPA
AGED ABOUT 30 YEARS
R/AT NO.16, ANGANAWAD,
DASANAPURA
BENGALURU NORTH
BENGALURU - 562 123
                                                ...APPELLANT
(BY SRI RAJU S., ADVOCATE)
AND:

MANAGING DIRECTOR
K.S.R.T.C.,
SHANTINAGAR
BENGALURU - 560 027
                                              ...RESPONDENT
(BY SRI SHANKAR GOUD G., ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 06.01.2022 PASSED IN MVC.
NO.2850/2020 BY XI ADDITIONAL SMALL CAUSES JUDGE AND
ADDITIONAL MACT, BENGALURU, (SCCH-12).

     THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

These two appeals are preferred by the K.S.R.T.C.

(for short, 'the Corporation) as well as the claimant

challenging the judgment and award dated 06.01.2022

passed in MVC.No.2850/2020 by the Court of XI Additional

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Small Causes and Additional MACT, Bengaluru (SCCH-12)

(for short, 'the tribunal').

2. The appeal preferred by the Corporation is on the

ground of exorbitant compensation awarded by the

tribunal without taking into consideration the negligence of

the claimant in occurrence of accident, whereas, the

appeal preferred by the claimant is founded on the

premise of inadequate and meager compensation awarded

by the tribunal.

3. Parties to this appeal shall be referred to as per

their status before the Tribunal.

4. Brief facts of the case are as under:

On 11.03.2020 at about 1.30 p.m., the claimant

made an attempt to climb the KSRTC Bus bearing

registration No.KA-01-F-9218 on N.H.4 Tumkur road, near

Jalahalli cross to Nelamangala side and the driver of the

Bus had already started the Bus and driven the same,

during which time, the claimant tried to get into the bus

and due to the negligence of the driver of the Bus, the

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claimant fell down and sustained injuries to all over his

body. Immediately, the claimant was shifted to Prakriya

Hospital, where he was provided first aid treatment and

thereafter, shifted to Premier Sanjeevini Hospital,

Bengaluru, wherein he was admitted as an inpatient for 43

days and took treatment and spent more than

Rs.7,75,000/- towards medical treatment and

miscellaneous expenditure.

4.1 It is stated that the claimant was working as a

Driver and earning a sum of Rs.20,000/- per month

contributing his entire income to the family. Due to the

injuries sustained in the road traffic accident, his future

earning capacity has been dented and he has suffered

permanent and physical disability. Hence, he filed a claim

petition seeking compensation against the respondent-

Corporation.

4.2 On service of notice, the respondent-Corporation

appeared through its counsel and filed written statement

denying the claim made by the claimant including age,

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income, avocation and the negligence attributed against

the driver of the Bus, on the contrary, pleaded that the

accident occurred due to negligence of the claimant, who

attempted to board the said Bus while it was moving and

since he could not hold on to the bus, fell down and

sustained injuries and immediately, the driver of the Bus

avoided serious accident by applying brake and stopping

the bus. On this basis, the respondent-Corporation sought

for dismissal of the claim petition.

4.3 Based on the pleadings, the Tribunal framed

relevant issues for consideration.

4.4 In order to substantiate the issues and to prove

the case, the claimant got examined himself as PW.1 and

the Doctor as PW.2 and got marked documents as per

Exs.P1 to P19. On the other hand, the respondent-

Corporation got examined a witness as RW.1 and got

marked documents as Exs.R1 and R2.

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4.5 On the basis of material evidence produced by

the parties, the tribunal awarded the compensation of

Rs.8,76,480/- with interest @ 6% p.a. However, fixed the

contributory negligence of 20% against the claimant and

80% against the driver of the Bus.

4.6 Being aggrieved by the same, the Corporation is

before this Court in MFA.No.8689/2022 seeking to set

aside the judgment and award passed by the tribunal on

the ground of it being erroneous and the claimant is also

before this Court in MFA.No.3708/2022 seeking

enhancement of compensation.

5. It is the vehement contention of learned counsel

for claimant that the tribunal has committed an error in

fastening the contributory negligence against the claimant,

whereas absolute negligence is to be fastened against the

driver of the Bus, who had moved the Bus while the

claimant was climbing the Bus near the Bus stand.

Therefore, it is his contention that had the Bus driver not

moved the vehicle seeing the claimant climbing the bus,

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the accident could have been averted. He also contends

that the income taken by the tribunal is on the lower side,

so also, the disability assessed by PW.2-Doctor and under

other heads, the tribunal awarded meager compensation.

On these grounds, he seeks to allow the appeal and

enhance the compensation.

6. Per contra, learned counsel for Corporation

vehemently contends that the judgment and award passed

by the tribunal is liable to be set-aside on the ground of

arbitrariness and contrary to the material evidence placed

on record. It is contended by learned counsel that the

tribunal has erred in coming to the conclusion that there is

negligence of 80% against the driver of the Bus and 20%

against the claimant, whereas the entire negligence is to

be attributed against the claimant, who attempted to climb

a moving Bus and fell down, due to his own negligence. It

is also contended that the disability assessed by PW.2-

Doctor is perverse, without any proper basis and reasoning

and the same is liable to be set-aside and reduced to zero,

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as there is no disability encountered by the claimant. The

disability so shown by PW.2-Doctor is exorbitantly high

and unreasonable. It is further contended by learned

counsel that under other heads also, the tribunal has

awarded higher compensation, which requires to be

drastically reduced and the negligence has to be entirely

fastened on the claimant.

7. I have heard learned counsel for claimant as well

as learned counsel for Corporation and perused the

impugned judgment and award.

8. Exs.P1 to P6 are the Police records, which are

produced and marked by the claimant to show that the FIR

and chargesheet have been laid against the driver of the

Bus and the driver of the Bus has pleaded guilty in a

criminal case registered against him. Exs.P7 to P19 are the

medical bills and prescriptions of the claimant along with a

copy of Aadhar card and photos to show the injuries and

financial expenditure met by the claimant. No doubt, the

Police records show that the FIR and chargesheet are laid

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against the driver of the Bus, but while awarding

compensation, this Court will have to carefully analyse as

to on whom the negligence has to be attributed for fixing

the liability in the present case.

9. On perusal of the Police records and the copy of

sketch at Ex.P3, it is apparently seen that the Bus has

already started from the Bus stand and moved ahead,

while the claimant came from traffic and attempted to

climb a moving Bus, but slipped and fell down. Noticing

the same, the driver of the Bus has stopped the vehicle

thereby averting the major and serious fatal accident. The

tribunal after considering the evidence of the claimant-

PW.1 and RW.1 has come to the conclusion that there is

20% negligence on the part of the claimant and 80%

negligence on the part of the driver of the Bus.

10. I have carefully perused the Police records and

the medical records produced by the claimant, the

evidence of PW.1 and RW.1 and their cross-examination.

It is apparently seen on a careful perusal of Ex.P3, which

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is the sketch relied on by the Corporation that the accident

has not taken place at the Bus stand but ahead of the Bus

stand when the vehicle had moved just close to the signal,

wherein the claimant made an attempt to climb the bus,

which was already on the move. Therefore, it can be

clearly noticed that the claimant, who was in a hurry,

rushed to climb the Bus when it was on the move and

being not successful, slipped and fell down and suffered

injuries. Therefore, the contributory negligence of 20%

attributed against the claimant and 80% against the driver

of the Bus, may not be sustainable, as the contributory

negligence has to be saddled more against the claimant

who made an attempt to climb the Bus when it was on the

move. Therefore, the contributory negligence of 30% is

attributed against the claimant and 70% against the driver

of the Bus.

11. Now coming to the aspect of age, avocation and

disability suffered by the claimant, the tribunal has taken

the income of the claimant at Rs.12,000/- per month, as

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there is no proof of income produced by the claimant

except the Driving Licence, which is produced at Ex.P9.

However, the Driving Licence shows that it is used for LMV

and Motor Cycle With Gear (MCWG), no other piece of

document is placed before the Court to show that the

claimant was doing profession as a driver. Nevertheless,

the income is taken at Rs.12,000/- per month. However,

the Legal Services Authority chart stipulates the notional

income of Rs.14,500/- for the accident of the year 2020.

The same will have to be taken in the absence of proof of

income and accordingly, the same is taken in this case.

The age of the claimant is 29 years. The appropriate

multiplier would be '17', which is rightly applied by the

tribunal and the same does not call for interference.

12. The next aspect would be the disability. PW.2-

Doctor has opined that the claimant has sustained

disability to an extent of 38% to the left arm and 34% to

the left hand and 24% to the whole body. He has admitted

the fact that he is not the treated Doctor and that he was

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working as an Orthopaedic Surgeon and he examined the

claimant on 26.08.2021, which is later than the date of

occurrence of accident on 11.03.2020. The opinion

expressed by the Doctor, however, is not very satisfactory

as he has opined the disability to left hand at 34%, left

arm at 38% and whole body at 24%. The evidence

adduced by the Doctor does not instill any kind of

professionalism or expert opinion. The disability is

assessed to a particular limb and there cannot be disability

to the left hand and left arm. The whole body is taken at

24%. Therefore, the tribunal has reduced the disability to

20%, taking into consideration the disability assessed by

the Doctor is on the higher side.

13. On careful perusal of the evidence of PW.2-

Doctor and the opinion expressed by him, the Court is of

the opinion that even if the disability of 38% to the left

arm is taken and divided into two, the whole body

disability would come to 19%. However, the tribunal has

taken the disability at 20%, which does not call for

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interference and the same is retained. Therefore, the

claimant would be entitled to the compensation of

Rs.5,91,600/- (Rs.14,500/- x 12 x 17 x 20%) towards

loss of future earning capacity due to disability as against

Rs.4,89,600/- awarded by the tribunal.

14. The tribunal awarded Rs.1,00,000/- towards pain

and suffering, Rs.3,90,000/- towards medical,

conveyance, nutrition and attendant charges, Rs.50,000/-

towards loss of future happiness and amenities and

Rs.30,000/- towards future medical expenses, which do

not call for interference and the same are retained.

15. The tribunal awarded Rs.36,000/- towards loss of

income during treatment period. In view of this Court

enhancing the income from Rs.12,000/- to Rs.14,500/-,

the claimant would require atleast four months period to

recuperate and to get back to his normal day to day

activities. Therefore, the claimant would be entitled to

Rs.58,000/- (Rs.14,500/- x 4) under this head.

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16. In view of the above, the claimant would be

entitled to a total compensation of Rs.12,19,600/-, out of

which, contributory negligence of 30% is attributed

against the claimant and 70% against the driver of the

Bus. Therefore, the claimant would be entitled to 70% of

the compensation amount of Rs.8,53,720/- as against

Rs.8,76,480/- awarded by the tribunal as mentioned in the

table below:

                 Heads                       Amount in Rs.
Loss of future income                           5,91,600-00
Pain and suffering                              1,00,000-00
Loss of income during treatment                   58,000-00
period
Medical, conveyance, nutrition and                3,90,000-00
attendant charges
Loss    of    future   happiness    and               50,000-00
amenities
Future medical expenses                             30,000-00
                  TOTAL                          12,19,600-00
Less: contributory negligence of 30%              3,65,880-00
       attributed against the claimant
       (30% of Rs.12,19,600-00)
                 TOTAL                           8,53,720-00
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17. Accordingly, I pass the following:

ORDER

i) The appeals preferred by the claimant and the

Corporation are allowed-in-part;

ii) The judgment and award dated 06.01.2022

passed in MVC.No.2850/2020 by the Court of

XI Additional Small Causes and Additional

MACT, Bengaluru (SCCH-12), is modified;