Karnataka High Court
Shri.Basavanni S/O Mallappa ... vs The Divisional Controller on 28 February, 2024
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MFA No. 100675 of 2019
C/W MFA No. 100752 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100675 OF 2019 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100752 OF 2019 (MV-I)
IN MFA NO.100675/2019
BETWEEN:
THE DIVISIONAL CONTROLLER,
NWKRTC CHIKKODI DIVISION,
CHIKKODI, TAL: CHIKKODI,
DIST: BELAGAVI-591201,
REP. BY: DULY CONSTITUTED AUTHORITY,
CHIEF LAW OFFICER, NWKRTC,
CENTRAL OFFICE, HUBBALLI.
...APPELLANT
(BY SRI. M. K. SOUDAGAR, ADVOCATE)
AND:
Digitally
1. SRI. BASAVANNI MALLAPPA REVANNAVAR,
signed by
ROHAN
AGE: 44 YEARS,
HADIMANI
ROHAN
HADIMANI T OCC: PRIVATE SERVICE, NOW NIL,
T Date:
2024.03.01 R/O. HANCHINAL, TAL: HUKKERI,
11:36:09
+0530 DIST: BELAGAVI-591309.
2. THE INTERNAL INSURANCE FUND
NORTH WEST KARNATAKA
ROAD TRANSPORT CORPORATION,
HEAD OFFICE GOKUL ROAD,
HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
(BY SMT. SUNANDA P. PATIL, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS IN CASE
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MFA No. 100675 of 2019
C/W MFA No. 100752 of 2019
MVC NO.2604/2015, ON THE FILE OF THE ADDL. M.A.C.T, HUKKERI,
SIT SANKESHWAR AND SET ASIDE THE JUDGMENT AND AWARD
DATED 20/11/2018 BY ALLOWING THIS APPEAL WITH COST AND
GRANT SUCH OTHER AND OR FURTHER RELIEF'S, AS THIS HON'BLE
COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES
OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.100752/2019
BETWEEN:
SHRI. BASAVANNI S/O. MALLAPPA REVANNAVAR,
AGE: 44 YEARS, OCC: PVT. SERVICE, NOW NIL,
R/O. HANCHINAL-591243,
TALUKA: HUKKERI, DISTRICT: BELAGAVI.
...APPELLANT
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
AND
1. THE DIVISIONAL CONTROLLER,
NWKRTC, CHIKKODI DIVISION,
CHIKKODI-591201,
TALUKA: CHIKKODI, DIST: BELAGAVI.
2. THE INTERNAL INSURANCE FUND,
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION,
HEAD OFFICE GOKUL ROAD,
HUBBALLI-580020, DIST: DHARWAD.
...RESPONDENTS
(BY SRI. M. K. SOUDAGAR, ADV. FOR RESPONDENTS)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 20.11.2018 IN MVC
NO.2604/2015 PASSED BY THE ADDITIONAL MACT HUKKERI
SITTING AT SANKESHWAR AND ENHANCE THE COMPENSATION
FROM RS.6,27,000/- TO RS.20,00,000/- TO THE APPELLANT IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 100675 of 2019
C/W MFA No. 100752 of 2019
JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for final disposal.
2. MFA No.100675/2019 is filed by the NWKRTC
challenging the liability saddled on it as well as quantum of
compensation, whereas the claimant/injured is also in appeal
seeking enhancement of compensation awarded under
judgment and award dated 20.11.2018 in MVC No.2604/2015
by the learned Senior Civil Judge & Addl. MACT, Sankeshwar
(for short, 'Tribunal').
3. Brief facts giving rise to filing of these appeals are
that on 16.02.2014, the appellant/injured was proceeding on
his motorcycle bearing registration No.KA-23/EE-3701 from
Hattaragi bus stand towards tollgate, at that time, NWKRTC bus
bearing registration No.KA-23/F-628 came in high speed, rash
and negligent manner and dashed to the motorcycle of the
appellant/claimant. As a result, the appellant/injured sustained
grievous injuries. It is stated that the claimant/injured was
aged 40 years as on the date of the accident and working as
Guard in the Water-Pepper LLP, Indira Nagar, Bangalore and
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getting salary of Rs.20,000/- per month and he was also
earning Rs.2,50,000/- per annum from agriculture.
4. Before the Tribunal, respondent/Corporation
contested the proceedings by filing its statement of objections
and denied the entire claim petition averments. It is averred
that the compensation amount claimed by the claimant is
exorbitant, excessive and without any basis. It is further
averred that the accident in question occurred due to rash and
negligent act of the claimant. There was no fault on the part of
the driver of the bus, who was driving the same in a moderate
speed. Thus, sought for dismissal of the claim petition.
5. The claimant in order to prove his case examined
himself as PW1 and one doctor examined as PW2 apart from
marking documents Exs.P1 to P16. The respondent/Corporation
examined the driver of the bus as DW1 and marked certified
copy of the judgment as Ex.D1.
6. The Tribunal considering the entire material
available on record, allowed the claim petition in part awarding
a compensation of Rs.6,27,000/- with interest at 6% per
annum from the date of petition till date of payment.
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7. Heard the learned counsel Sri.M.K.Soudagar for the
appellant/Corporation and learned counsel Smt.Sunanda P.
Patil, for the appellant/injured.
8. Learned counsel Sri. M.K. Soudagar for the
appellant/Corporation would submit that the Tribunal has
committed an error in fastening entire liability on the
Corporation holding that the driver of the bus was negligent.
However, the police after investigation had filed charge sheet
against the driver of the bus as well as the appellant/claimant.
Hence, the appellant/claimant has also contributed to the
accident in question to the extent of 50%. It is submitted that
the Tribunal committed further error in assessing disability of
the appellant/claimant at 16%, as he has suffered only
fracture, i.e., ornamental bone fracture which will not cause
any disability. Hence, the disability can be assessed to an
extent of 5% for the purpose of determining the compensation.
Hence, he seeks to modify the impugned judgment and award.
9. Per contra, learned counsel Smt. Sunanda P Patil
appearing for the appellant/clamant submits that the Tribunal
committed grave error in assessing disability of the
appellant/claimant at 16%, which is contrary to the evidence of
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PW2, who is a treated doctor of the appellant. Hence, she
seeks to consider the disability at 50%. She makes a reference
to Ex.P10-Discharge Summary and submits that this Court has
to re-assess the disability on the higher side. It is submitted
that no doubt, the police have filed charge sheet against the
appellant/claimant also, however, he was not negligent in
riding the motorcycle. Hence, the Tribunal is justified in
holding that the driver of the bus of the appellant/Corporation
was liable for the accident in question. It is further submitted
that the appellant/injured was inpatient for 20 days in the
hospital, hence, award of compensation under the head of
conveyance, attendant charges, special diet and nourishment
etc. are on the lower side. It is also submitted that the award
of compensation of Rs.14,000/- for laid-up period is also on the
lower side, which requires to be enhanced. She argues that the
award of Rs.1,00,000/- under the head of pain and suffering
and also award of Rs.10,000/- under the head of loss of
amenities is also on the lower side, as the appellant has
suffered number of fractures and injuries, Hence, this Court
requires to enhance the compensation under the head of loss of
amenities.
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10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the following points would
arise for consideration in these appeals:
a) Whether the Tribunal is justified in saddling
entire liability on the appellant/Corporation?
b) Whether the appellant/claimant would be
entitled for enhanced compensation?
11. Answer to the above points would be in the
'negative' and 'affirmative' for the following reasons:
12. There is no dispute with regard to the occurrence of
the accident on 16.02.2014, resulting in fractural injuries to the
appellant/claimant. The evidence on record clearly indicates
that the jurisdictional police after completion of investigation
filed charge sheet against the appellant/claimant as well as
driver of the bus of the appellant/Corporation. The evidence
available on record indicates that the driver of NWRKTC bus Sri.
Joma Kallappa Naik is acquitted for the offence punishable
under Sections 279 and 338 of IPC by the Addl. Civil Judge and
JMFC, Sankeshwar in CC No.141/2015. Insofar as
appellant/claimant, the same Court in CC No.142/2015 vide
judgment dated 5.1.2017 has acquitted the appellant/claimant
for the offence punishable under Sections 279 and 338 of IPC.
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The oral testimony of DW1 indicates that the appellant/claimant
was riding the motorcycle in a rash and negligent manner.
Though the said witness was cross-examined, nothing has been
elicited from him. The acquittal of the accused from the
offences is on the ground that the prosecution failed to prove
the case beyond reasonable doubt. The acquittal of the
accused itself cannot be a ground to come to a conclusion that
the rider of the motorcycle was not negligent or the driver of
the Corporation bus was negligent. The investigating material
on record clearly indicates that the appellant/claimant was rash
and negligent and partially contributed to the accident in
question.
13. This Court on analysis of entire material available
on record is of the considered view that the Tribunal committed
an error in holding that the driver of the bus was entirely
responsible for the accident in question and further committed
an error in saddling entire liability on the Corporation. The
evidence available on record indicates that there is a negligence
of rider of the motorcycle i.e., appellant/claimant also. Hence,
this Court is of the considered view that the appellant/claimant
has contributed to the accident in question to the extent of
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25%. Accordingly, the liability of the Corporation is restricted
only to the extent of 75%.
14. Insofar as the quantum of compensation is
concerned, the appellant/claimant examined PW2, who is a
treated doctor and has issued disability certificate at Ex.P13,
which indicates that the appellant/claimant has suffered
physical disability to the extent of 50%. The Tribunal taking
note of oral testimony of PW2 and the disability certificate at
Ex.P13 has rightly come to the conclusion that the
appellant/claimant has sustained permanent physical disability
at 16%. This Court is of the considered view that the
assessment of the Tribunal is based on nature of injuries
suffered by the appellant/claimant and also based on evidence
of PW2 and Disability Certificate at Ex.P13, which does not call
for any interference.
15. The Tribunal taking note of the injuries suffered by
the appellant/claimant has awarded a sum of Rs.1,00,000/-
under the head of pain and suffering. Taking into account the
injuries suffered by the appellant/claimant referred at Disability
Certificate at Ex.P13 and the evidence of PW2, this Court is of
the considered view that the appellant/claimant is entitled to
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additional sum of Rs.25,000/- each under the head of pain
and suffering and loss of amenities. The appellant was inpatient
for 20 days and to recover from the injuries suffered by him, he
may require further period of two months, hence, it would be
just and proper to award additional sum of Rs.10,000/- under
the head of loss of income during laid-up period. Ex.P13-
Disability Certificate indicates that the appellant/claimant is
required another surgery to remove implants. Ex.P13 is issued
by PW2 and the said document is marked during the course of
trial. Hence, taking note of aforesaid opinion of PW2, this Court
is of the considered view that the appellant/claimant would be
entitled to Rs.25,000/- for future surgery to remove implants.
Accordingly, Rs.25,000/- is awarded under the head of future
medical expenses. Thus, in all, the claimant shall be entitled to
modified compensation under the following heads:
HEADS AMOUNT in Rs.
Towards pain and suffering 1,25,000/-
Towards Medical expenses 2,70,000/-
Conveyance, food, diet and attendant charges 20,000/-
Loss of future earnings due to disability 1,88,000/-
Loss of amenities 35,000/-
Loss of income during laid-up period 24,000/-
Future medical expenses 50,000/-
Total 7,12,000/-
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16. Thus, the claimant shall be entitled to total
compensation of Rs.7,12,000/- as against Rs.6,27,000/-
awarded by the learned Tribunal. The enhanced compensation
amount shall carry interest at the rate of 6% per annum from
the date of petition till realization. Since the liability of the
appellant/Corporation is restricted to 75%, the claimant would
be entitled to 75% of the total compensation of Rs.7,12,000/-.
17. In the result, this Court proceeds to pass the
following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total compensation
of Rs.7,12,000/- as against Rs.6,27,000/-
awarded by the Tribunal.
c) The appellant/claimant is entitled to 75% of the
total compensation amount of Rs.7,12,000/-
with interest at 6% per annum from the date of
petition till realization.
d) The appellant/Corporation shall deposit 75% of
the total compensation amount with accrued
interest before the Tribunal within a period of six
weeks from today.
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e) The amount in deposit made by the
appellant/Corporation be transmitted to the
Tribunal forthwith.
f) Apportionment and disbursement of the
enhanced compensation shall be made as per
award of the Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
