Karnataka High Court

Nagesh @ Nagaraja vs The Divisional Controller Nekrtc on 24 July, 2024

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                                                    MFA No. 200089 of 2022
                                                C/W MFA No. 200549 of 2022



                              IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH

                           DATED THIS THE 24TH DAY OF JULY, 2024

                                          PRESENT

                          THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                            AND
                           THE HON'BLE MR. JUSTICE RAJESH RAI K

                       MISCL. FIRST APPEAL NO.200089/2022 (MV-I)
                                          C/W
                       MISCL. FIRST APPEAL NO.200549/2022(MV-I)

                   IN MFA NO.200089/2022
                   BETWEEN:

                   THE DIVISIONAL CONTROLLER
                   NEKRTC BUS DEPOT, YADGIRI,
                   (NOW REPRESENTED BY
                   CHIEF LAW OFFICER,
                   NEKRTC, NOW KKRTC,
                   KALABURAGI).
Digitally signed                                               ...APPELLANT
by
BASALINGAPPA       (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
SHIVARAJ
DHUTTARGAON
Location: HIGH     AND:
COURT OF
KARNATAKA
                   NAGESH @ NAGARAJA
                   S/O AMBARESH,
                   AGE: 20 YEARS,
                   OCC: MASON AND COOLIE,NOW NIL,
                   R/O. BENGALURU,
                   NOW RESIDING AT BADIYAL,
                   TQ. AND DIST: YADGIRI.
                                                            ...RESPONDENT
                   (BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR
                       SRI. VEERANAGOUDA MALIPATIL, ADVOCATE)
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                                MFA No. 200089 of 2022
                            C/W MFA No. 200549 of 2022



     THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 24.08.2021 IN MVC
NO.231/2020 PASSED BY THE MEMBER, MACT NO.II YADGIR,
IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA NO.200549.2022

BETWEEN:

NAGESH @ NAGARAJA
S/O AMBARESH,
AGE: 21 YEARS,
OCC: MASON AND COOLIE (NOW NIL)
R/O. BENGALUR,
NOW RESIDING AT BADIYAL,
TQ. AND DIST: YADGIR.
                                             ...APPELLANT

(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR
   SRI. VEERANAGOUDA MALIPATIL, ADVOCATE

AND:

THE DIVISIONAL CONTROLLER
NEKRTC BUS DEPOT,
YADGIR- 585 224.
                                            ...RESPONDENT

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
     THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE APPEAL, THE JUDGMENT AND AWARD DATED
24.08.2021 IN MVC NO.231/2020 ON THE FILE OF LEARNED
MEMBER MACT-II, AT YADGIR, MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.

     THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                       MFA No. 200089 of 2022
                                   C/W MFA No. 200549 of 2022



CORAM:     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
            AND
            THE HON'BLE MR. JUSTICE RAJESH RAI K

                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

These two appeals are arising out of common

judgment and award dated 24.08.2021 passed in MVC

No.231/2020 by the Member and MACT-II, Yadgir, hence,

they are taken up together for final disposal.

2. The petitioner being dissatisfied with the

compensation awarded by the Tribunal filed the appeal in

MFA No.200549/2022 seeking for enhancement. The

Insurance Company filed the appeal in MFA

No.200089/2022 challenging the liability.

3. The parties are referred to as per their ranking

before the Tribunal.

4. Brief facts leading rise to filing of these appeals

are as under:

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On 07.06.2020 at about 5.30 p.m., the claimant was

proceeding in a NEKRTC bus bearing No.KA-33/F-0526

from Yadgir to Bengaluru. The said Bus was near Sanna

Mouneshwar Temple, Gurgunta, on Lingasugur-Kalaburagi

main road. The driver of the said bus driven the bus in a

rash and negligent manner and in zigzag manner without

following traffic rules, dashed to unknown lorry, which was

coming from opposite direction, as the petitioner was

sitting in the right side row of the bus sustained grievous

injuries over the right hand. The petitioner was admitted

in RIMS Hospital, Raichur, wherein he undergone surgery

and there was amputation of above elbow right hand and

he was discharged on 23.06.2020. Hence, he has spent

huge amount towards medical expenses. The claimant was

aged about 19 years as on the date of accident and

working as mason and coolie at Bengaluru and earning

Rs.20,000/-. He submits that the claimant is unable to do

work, which he used to do prior to the accident. Hence,

filed the claim petition under Section 166 of Motor Vehicles

Act seeking for compensation of Rs.50,00,000/- from the

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date of petition on account of injuries sustained in road

traffic accident.

5. The respondent-Corporation filed objections

denying the averments made in the claim petition and also

denied the occurrence of accident. It is contended that

NEKRTC bus driver requested the claimant for removing

the hand from the window, but the claimant neglected his

advice many times. It is stated that the compensation

claimed by the claimant is exorbitant and imaginary one

and prayed to dismiss the claim petition.

6. The Tribunal on the basis of pleadings of the

parties framed the issues. The petitioner in order to prove

his case examined himself as PW.1 and in order to prove

disability examined doctor as PW.2 and got marked 12

documents as per Exs.P1 to P12. The respondent

examined the driver of the offending bus as RW.1 but no

documents are marked. The Tribunal after recording the

evidence, hearing on both sides and on assessment of oral

and documentary evidence, allowed the claim petition in

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part with cost. It is ordered that the claimant is entitled to

compensation of Rs.20,30,974/- with interest at the rate

of 6% per annum from the date of petition till its

realization and directed respondent to deposit the

compensation amount within statutory period as

contemplated under Section 168(3) of Motor Vehicles Act.

7. The petitioner being dissatisfied with the

compensation awarded by the Tribunal filed MFA

No.200549/2022. The respondent-Corporation aggrieved

by the judgment and award has filed MFA

No.200089/2022.

8. Heard the learned counsel for the petitioner and

also learned counsel for respondent-Corporation.

9. Learned counsel for the petitioner submits that

the Tribunal has failed to add future prospects to the

income of the deceased. He further submits that the

compensation awarded by the Tribunal on other heads is

also on the lower side. He also submits that the claimant

was aged about 19 years and earning Rs.20,000/- per

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month. The accident is of the year 2020. In the absence

of income proof, the Tribunal ought to have taken notional

income as per the guidelines issued by the Karnataka

State Legal Services Authority. As per the chart, notional

income for the year 2020 is Rs.13,750/- whereas the

Tribunal has taken notional income at Rs.10,000/- per

month. He also submits that the Tribunal was justified in

passing the impugned judgment insofar as liability is

concerned. Hence, on these grounds, he prays to allow the

appeal filed by the petitioner and dismiss the appeal filed

by the respondent.

10. Per contra, learned counsel for respondent-

Corporation submits that there is contributory negligence

on the part of the claimant also who has kept his hand in

the window negligence despite the advise of driver of the

bus and the accident was occurred due to negligence of

the claimant. The Tribunal ought to have fastened liability

on the claimant for contributory negligence. But the

Tribunal has committed an error in fixing the liability

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wholly on the respondent. Hence, she submits that some

portion of negligence be fixed on the petitioner/claimant.

Hence, on these grounds, she prays to allow the appeal

filed by the respondent-Corporation and prays to dismiss

the appeal filed by the petitioner.

11. Perused the records and considered the

submissions of learned counsel for the parties. The points

that arise for our consideration are liability and quantum

of compensation.

12. It is not in dispute that the petitioner met with

an accident and sustained grievous injuries. It is not in

dispute that in order to establish that the accident was

occurred due to rash and negligent driving of offending

vehicle, the petitioner has produced the certified copy of

the FIR marked as Ex.P1 and certified copy of the

complaint marked as Ex.P2 and certified copy of charge

sheet marked as Ex.P3. From the perusal of Exs.P1 to P3,

it discloses that RW.1 was driving the vehicle on the date

of accident. Further, it is also not in dispute that the

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claimant was holding his hand in the window and unknown

lorry came and hit to the hand of the petitioner, as a

result, the petitioner has sustained grievous injuries. Thus,

the petitioner has also contributed for the cause of

accident. The Tribunal without considering the said aspect,

has exonerated entire liability on the respondent. The

Tribunal has committed an error in exonerating the entire

liability on the respondent. As observed above, the

petitioner was also negligent in laying his hand in the

window. Thus, he has also contributed for cause of

accident. Therefore, we hold that there is contributory

negligence on the part of driver at 80% and 20% on the

petitioner.

13. Insofar as quantum of compensation is

concerned, though the petitioner has pleaded in the

petition that he was doing work at Bengaluru and earning

Rs.20,000/- per month, in order to substantiate the same,

the petitioner has not produced any income proof. In the

absence of proof of income, we assess the notional income

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based on the chart issued by the Karnataka State Legal

Services Authority. Since the accident is of the year 2020,

as per the chart, we take notional income of the petitioner

at Rs.13,750/- per month. The petitioner was aged about

19 years. In view of the law laid by the Hon'ble Apex Court

in the case of Erudhaya Priya vs. State Express

Transport Corporation Ltd., reported in 2020 SCC

OnLine SC 601, 40% of the future prospects is to be

added to the monthly income. Thus, it comes to

Rs.19,250/- (13,750/- + 5,500/-). Thus, we assess the

notional income of the deceased at Rs.19,250/- per

month.

14. In order to prove disability the petitioner

examined doctor as PW.2, Orthopedic Surgeon, who has

deposed that he has examined PW.1 and issued the

disability certificate as per Ex.P9. He has assessed the

permanent disability of the petitioner at 80% and deposed

loss of earning capacity to the extent of 90%. The Tribunal

considering the evidence of PW.2 has assessed the

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permanent physical disability at 90% which is just and

proper and does not call for interference. Therefore, we

assess loss of future income at Rs.37,42,200/-

(19,250x12x18x90%).

15. Thus, considering the evidence of PW.2 and

Exs.P6 and 9, we re-assess the compensation in the

following heads.

Compensation awarded in Rs.

         Particulars              By the
                                              By this Court
                                 Tribunal
 Loss of future income           19,44,000/-     37,42,200/-
 on account of
 permanent disability
 Medical expenses                                          6,974/-
                                         6,974/-
 Pain and suffering
                                     25,000/-            60,000/-
 Diet and Attendant
 charges, Conveyance                 20,000/-            40,000/-
 charges
 Loss of income during
                                            ----         57,750/-
 laid up period
 Loss of amenities                    ----              1,00,000/-
 Artificial limb                 35,000/-               1,50,000/-
 Marriage prospects                   ----              1,00,000/-
 Total                     Rs.20,30,974/-           Rs.42,56,924/-
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16. Thus, as already discussed above, the petitioner

has also contributed for the cause of accident. We quantify

liability on both i.e., 80% on the respondent and 20% on

the petitioner. Thus, the petitioner is entitled for deduction

of 20% of compensation amount. (42,56,924-8,51,385)

Thus, the petitioner is entitle for total compensation of

Rs.34,05,539/- as against Rs.20,30,974/-. Thus the

petitioner is entitled to enhanced compensation of

Rs.13,74,565/-.

17. In view of the above discussion, we proceed to

pass the following:

ORDER

i. The appeal filed by the Corporation in MFA No.200089/2022 and MFA No.200549/2022 filed by the claimant are allowed in part.

ii. The impugned judgment and award passed by the Tribunal is modified.

iii. Thus, the petitioner is entitle for total compensation of Rs.34,05,539/- as against Rs.20,30,974/-. Thus, the petitioner is

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entitled to enhanced compensation of Rs.13,74,565/- with interest at the rate of 6% per annum from the date of petition till its realization.

iv. Respondent is directed to deposit the entire compensation amount with accrued interest before the Tribunal within a period of eight weeks from date of the receipt of copy of this judgment.