Karnataka High Court
The Managing Director vs Smt. N. Mangala on 27 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.5037 OF 2023(MV-I)
C/W
MFA CROSS OBJECTION NO. 105 OF 2023 (MV-I)
IN MFA NO.5037/2023
BETWEEN:
THE MANAGING DIRECTOR
KSRTC
CENTRAL OFFICE,
KENGAL HANUMANTHAIAH ROAD,
SHANTHINAGAR,
BENGALURU 560 027,
REP. BY ITS CHIEF LAW OFFICER.
...APPELLANT
Digitally (BY SRI. D. VIJAYAKUMAR, ADVOCATE)
signed by
YAMUNA K L AND:
Location: High
Court of
Karnataka SMT. N. MANGALA,
W/O. A.M. NAGARAJU,
AGED ABOUT 41 YEARS,
R/AT. NO. 234, BEHIND SHISHU VIHAR,
AGRAHARA, TUMAKURU TOWN,
TUMAKURU - 572 101
...RESPONDENT
(BY SRI. NAGARAJA M., ADVOCATE)
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MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED. 23.01.2023 PASSED IN MVC
NO.1991/2020 ON THE FILE OF THE 12TH ADDITIONAL JUDGE
AND ACMM, COURT OF SMALL CAUSES JUDGE, BENGALURU,
(SCCH-8), AWARDING COMPENSATION OF RS.4,42,276/-
WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA.CROB NO.105/2023
BETWEEN:
SMT. N. MANGALA,
W/O A.M. NAGARAJU,
AGED ABOUT 42 YEARS,
NO.234, BEHIND,
SHISHU VIHARA AGRAHARA,
TUMKUR TOWN, TUMKUR - 572 101
...APPELLANT
(BY SRI. NAGARAJA M., ADVOCATE)
AND:
THE MANAGING DIRECTOR,
K.S.R.T.C., CENTRAL DIVISION,
KENGAL HANUMANTHAIAH ROAD,
SHANTHINAGAR,
BENGALURU - 560 027
...RESPONDENT
(BY SRI. D. VIJAYAKUMAR, ADVOCATE)
THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF
THE CPC AGAINST THE JUDGMENT AND AWARD DATED
23.01.2023 PASSED IN MVC NO. 1991/2020 ON THE FILE OF
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MFA No. 5037 of 2023
C/W MFA.CROB No. 105 of 2023
THE 12TH ADDITIONAL JUDGE, A.C.M.M., SMALL CAUSES
JUDGE, BENGALURU, (SCCH-8), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION.
THIS MFA AND MFA.CROB, COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/KSRTC has filed MFA No.5037/2023
challenging the judgment and award dated 23.01.2023
passed by the MACT and XII Additional Judge and ACMM
Court of Small Causes Judge, Bangalore, in
M.V.C.No.1991/2020 questioning the liability and also to
reduce the quantum of compensation.
2. The appellant/claimant has filed MFA Crob
No.105/2023 seeking to enhance the compensation
awarded by the Tribunal in M.V.C.No.1991/2020 dated
23.01.2023.
3. Heard the arguments of learned counsel for both the
appellants and respondents in the above MFA as well as
the MFA Crob.
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4. The appellant in MFA CROB is the petitioner/claimant
and the appellant/KSRTC in MFA No.5037/2023 was the
respondent before the Tribunal.
5. For the sake of convenience the rank of the parties is
referred to as per their ranking before the Tribunal.
6. The petitioner filed petition under Section 166 of the
Motor Vehicles Act before the Tribunal claiming
compensation of Rs.15,00,000/- for the injuries sustained
by the petitioner in the road traffic accident that occurred
on 10.02.2020 at 10.30 a.m. It is alleged by her in the
petition that on 10.02.2020 at 10.30 a.m. in Tumkur Bus
Stand, she boarded a KSRTC Bus bearing Reg.No.KA.42/F-
1941 in order to go to Nelamangala. Later she came to
know from the Conductor that the bus was not going
towards Nelamangala, but it is going towards Dabaspete
route. Therefore, when she was about to get down from
the bus, the driver of the bus without any signal from the
Conductor, all of a sudden moved the bus due to the
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impact, the petitioner fell down and bus went on her left
leg, as a result she sustained crush injury to the left leg
foot and also injuries up to the knee i.e., Left leg
degloving wound extending from the knee to ankle,
extending along dorsum of left foot entire circumference of
the limb, fracture of lateral medial malleous and fracture
of calcanium. Immediately she was taken to the
Government Hospital at Tumkur. Thereafter, she was
shifted to Sanjay Gandhi Hospital at Bangalore, and took
treatment from 10.02.2020 to 28.03.2020 as inpatient due
the crush injury to her left leg foot and other parts of the
body. Hence she was admitted in the hospital for more
than 48 days. She was doing flower vending business and
because of the accident, she has suffered from disability,
and is unable to do the business. Therefore, she filed
claim petition seeking compensation under various heads.
7. Pursuant to the notice, respondent/KSRTC appeared
through the learned counsel and denied the rash and
negligent driving of the bus and had taken a specific
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contention that the petitioner boarded the bus and
immediately without any signal or intimation to either the
conductor or the driver, she herself got down from the
running bus. Therefore, contended that the accident
occurred due to the negligence on the part of the claimant,
therefore, the question of granting any award in favour of
the petitioner does not arise and further denied the age,
occupation, income and disability suffered by the claimant
as false, and hence sought for dismissal of the claim
petition.
8. Based upon the pleadings made by learned counsel
for both the parties, the Tribunal framed the following
issues :-
"1. Whether the petitioner proves that she has
sustained grievous injuries in the Road Traffic
Accident alleged to have occurred on
10.02.2020 at about 10.30 a.m. near new
KSRTC Bus Stand, Tumkur Town, Tumkur due
to the rash and negligent driving of the driver
of the KSRTC Bus bearing registration
number:KA-42-F-1941?
2. Whether the petitioner is entitled for
compensation ? If so, to what is the quantum
and from whom ?
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3. What Order or Award ?"
9. To substantiate the claim of the petitioner, petitioner
was examined as PW.1 and got marked 32 documents and
also examined PW.2 the Doctor and also got marked
Exs.P33 to 36 and after closing the evidence of the
petitioner, the driver of the bus was examined as RW.1,
but no documents were marked and after hearing the
arguments, the Tribunal answered issue No.1 in the
affirmative. Issue No.2 is partly affirmative and finally
allowed the petition in part by awarding compensation of
Rs.4,42,276/- on various heads, which is as follows :-
a. Loss of future income : Rs.2,61,000/-
b. Pain and suffering : Rs. 40,000/-
c. Medical expenses : Rs. 32,776/-
d. Loss of Amenities : Rs. 50,000/-
e. Loss during laid down period : Rs. 43,500/-
f. Food, Nourishment,
Transportation and
attendant charges : Rs. 15,000/-
----------------------------
TOTAL : Rs.4,42,276/-
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10. Being aggrieved with the findings regarding rash and
negligence as well as the quantum of compensation, the
KSRTC has filed the appeal in MFA No.5037/2023, whereas
the claimant also filed the MFA CROB No.105/2023
seeking to enhance the compensation.
11. Sri D. VijayaKumar, learned counsel for the
appellant/KSRTC seriously contended that the accident
occurred purely due to the negligence of the claimant as
she boarded the bus asking whether the bus was going
towards Nelamangala, when the conductor said it was
going towards Dabaspete road, the claimant herself
suddenly came down the bus and due which, the running
bus went on the foot of the claimant. Therefore,
absolutely there is no negligence on the part of the driver
of the bus in moving the bus, as the bus was already
moved and the claimant boarded the moving bus and got
down from the moving bus. Therefore, there is no
negligence on the part of the 1st respondent. He
contended that there was admission made by the claimant
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in cross examination that the accident would not have
occurred, if she had got down from the bus after
intimation to the Driver or conductor. Therefore, it is
contended because of the admission, the Trial Court ought
to have disbelieved the evidence of PW.1 regarding the
negligence. Therefore, the liability shall not be fixed on
the Driver of the KSRTC Bus. Even alternatively
contended that there must be contributory negligence on
the part of the driver as well as the claimant. Therefore,
the quantum of compensation shall be reduced towards
negligence on the part of the petitioner/claimant and also
contended that the compensation awarded by the Tribunal
on other heads is also exorbitant, as there is no document
and prayed for allowing the appeal.
12. Per contra, the claimant's Advocate in the Cross
Appeal No.105/2023 supported the findings given by the
Tribunal in respect of issue No.1 stating that in the cross
examination of PW.1, denied the suggestion that the
accident occurred due to the negligence on the part of the
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petitioner, though a stray admission was made by her in
the further cross-examination, but RW1 has given
evidence, who is the driver of the bus that the bus used to
move only after closing the hydraulic door and he has
admitted that the door was not closed, but he has moved
the bus. It is also contended that the door can be opened
by the passenger by a button, which is kept near the door
and further it is admitted by RW.1 that the control of
opening and closing the door is with the driver and not
with the passenger or conductor. It is therefore,
contended that the Tribunal by appreciating the evidence
on record rightly held that the accident occurred due to
the negligence on the part of the driver of the bus, but not
due to the negligence of the claimant. Therefore, prayed
for dismissing the appeal filed by the KSRTC.
13. Learned counsel for the claimant contended that the
Tribunal awarded very meager compensation towards pain
and agony, medical expenses, loss of income during laid
up period, loss of future amenities, food and nourishment
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etc., and also contended that the Doctor assessed the
disability at 34% to the limb and Tribunal considered
only 10%, which is below 1/3rd and not even 1/3rd and also
contended even the Court can observe the leg of the
claimant, who is present before the Court and as such, it is
observed that there are lot of scars on the left leg upto the
knee and she is a woman and she is unable to walk, sit
squat and she is limping. Therefore, the compensation
shall be suitably enhanced and hence prayed for allowing
the MFA Crob filed by the claimant.
14. Per contra, the learned counsel for the KSRTC has
contended that the amount of compensation awarded by
the Tribunal is more than sufficient and therefore, there is
no need to enhance the compensation and prayed for
dismissing the MFA Crob.
15. Having heard the learned counsel for both the parties
and on perusal of the records, the points that arise for my
consideration are as to:-
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"a. Whether the respondent proves that the
accident occurred due to the negligence on
the part of the claimant and not on the part
of the driver of the KSRTC Bus ?
b. Whether the amount of compensation
awarded by the Tribunal is sufficient in
respect of the injuries sustained by her ?
c. Whether it calls for enhancement or
reduction, if so what award ?"
16. On perusal of the records, it indicates that
occurrence of the accident in Tumkur Bus-Stand is not in
dispute. The negligence is disputed by the respondent in
the statement of objection as well as in the evidence by
the examination of the driver of the bus as RW.1. On the
other hand, the claimant was examined as PW.1. The
learned counsel for the respondent brought to the notice
of this Court in the deposition of the PW.1 in the cross
examination, she has admitted that the accident could not
have occurred, if she had to inform the conductor or the
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driver of the bus and therefore, the admission clearly
reveals that there is negligence on the part of the
claimant. On the other hand, RW.1 has admitted that bus
cannot be moved until the hydraulic door is closed and the
operating system / control of the bus is with the driver.
On considering the evidence of both PW1 as well as RW1,
in the first instance PW1 has been suggested by the
learned counsel for the respondent in the Tribunal, where
she has denied that there was negligence on her part and
the accident could not have occurred, if the claimant had
got down the bus after intimation. In the first instance,
she has denied the suggestion. However, on further cross
examination she has admitted only that the accident could
have been avoided if she has given intimation to the driver
or conductor of the bus. There is no evidences i.e., one is
denying the suggestion and one is admitting the
suggestion. However, it is also pertinent to note in the
cross examination of RW.1 that he has suggested that the
bus shall have to be moved only after closing the hydraulic
door of the bus and the control of opening and closing of
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the door, is with the driver of the bus, which clearly
reveals that the bus earlier started moving and after the
signal given by the claimant, he has stopped the bus.
Once the bus was stopped, the door could have been
opened by the driver of the bus. She has boarded the bus
and enquired with the Conductor whether the Bus is going
to Nelamangala, then the conductor informed that the Bus
is not going towards Nelamangala, but it is going towards
Dabaspete route. Therefore, she got down from the bus,
but at that time, the Driver moved the Bus even without
closing the door. From the evidence on record, it is clear
that the bus was moved by the Driver without closing the
door and without allowing the passenger to get down from
the bus. When the driver himself stopped the bus by
looking to the claimant/passenger, therefore, until there
was a confirmation that the passenger was inside the bus
and after closing the door, he could have moved the bus,
but without closing the door, he has moved the bus.
Hence if the door is closed, the question of passenger
getting down from the bus does not arise. Therefore, the
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Tribunal on considering the evidence of both the parties
rightly held that the accident in question occurred solely
due to the negligence on the part of the driver of the bus,
but not due to the negligence on the part of the claimant.
Therefore, this Court is of the opinion, that there is no
negligence on the part of the claimant, as the accident
could have been avoided if she had intimated once the
driver stopped the bus on the signal of the claimant and
not on the signal of the conductor. Such being the case,
the driver ought to have confirmed before moving the bus,
whether the passenger got down from the bus and as to
whether the door was closed or not. Therefore, without
closing the door, moving the bus when the claimant was
getting down without observing even through the side
mirror of the bus and caused the accident due to which the
accident occurred and therefore, point No.1 is answered in
favour of the claimant and against the driver and held this
accident is purely due to the negligence of the driver of
the bus.
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17. As regards the quantum of compensation PW.1
examined PW.2, the Doctor, who has given evidence that
the petitioner/claimant suffered grievous injuries to the
left foot and the injuries were up to the left knee and there
is lot of scars on the left leg. The injuries are not properly
healed and this Court has observed the claimant, who was
present before the Court, that the injuries were up to the
knee of the left leg, very grievous in nature and not
properly united and healed. Such being the case, the
Tribunal has considered 10% disability, even though the
Doctor assessed the disability at 34% to the left limb.
Even if it is considered as 1/3rd it would come to 11.33%,
but the Tribunal has considered as 10% disability.
Therefore, I propose to consider 12% disability to the
whole body in stead of 10% as considered by the Tribunal.
18. Learned counsel for the claimants has contended that
there was loss of future prospects, but the claimant has
not produced any document to show that she was
suffering from total functional disability, which would not
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permit her from doing any work. She is said to be doing
flower vending business and for vending the flowers or
tagging the flowers, there will be no order for her and
therefore, it cannot be held that there would be any loss of
future prospects due to the injury sustained by her.
Therefore, loss of amenities can be properly compensated,
but there is no question of loss of future prospects in this
case.
19. The Tribunal has rightly taken the notional income of
the petitioner at Rs.14,500/- p.m. by considering the chart
of Legal Services Authority, for the accident that occurred
in the year 2020. The income is to be considered at
Rs.14,500/- x 12 and further based on the age group of 39
years, the multiplier adopted is '15' and not '14' as
suggested by the learned counsel for the KSRTC. Thus the
loss of income due to disability would be :-
Rs.14,500/- x 12 x 15 x 12 = Rs.3,13,200/-
20. As regards pain and suffering the Tribunal awarded
Rs.40,000/-. It is pertinent to note that there was crush
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injury to the left leg and was admitted as inpatient for 50
days. Such being the case Rs.40,000/- is on lower side,
therefore, I propose to award Rs.50,000/- towards pain
and suffering.
21. Towards medical expenses the Tribunal has awarded
a sum of Rs.32,776/- which is based on the bills
produced by the claimant. Hence there is no need for
enhancement.
22. Towards loss of amenities the Tribunal has awarded a
sum of Rs.50,000/-. Though this Court is required to
confirm the same amount but on physical observation of
the left leg from foot to the knee, it is observed that the
claimant is suffering from loss of amenities and there is
difficulty in sitting and squatting on the floor, there is total
disfiguration and though it is stated by the learned counsel
for the claimant that because of the injuries, her husband
left the petitioner, there is no documentary proof in this
regard and there is no witnesses examined to show that
her husband left her or deserted her. However, on
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observing her left leg physically in the Court, I am of the
view, that there is total disfigurement and she has to
suffer this loss of amenity throughout her life. Therefore,
by looking to the discomfort of the leg and due to the
disablement/disfigurement, she has to limp and therefore,
throughout her life she has to suffer from loss of
amenities. Therefore, towards loss of amenities, I propose
to award compensation of a sum of Rs.1,00,000/- as
against Rs.50,000/-.
23. Loss of income during laid up period is Rs.43,500/-.
The Tribunal has awarded compensation for three months
laid up period. The petitioner herself was admitted in the
Hospital for almost two months as inpatient. Thereafter
she was required to take rest for another three months,
therefore, in all, laid up period would be five months,
hence loss of income during laid period would come to
Rs.14,500 x 5 = Rs.72,500/-
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24. Towards food, nourishment and attendant charges
the Tribunal has awarded Rs.15,000/-, which is very
meager. The claimant was admitted in the Sanjay Gandhi
Hospital, at Bangalore, which is far away from Tumkur,
she was inpatient for 48 days hence she would have
incurred expenses towards food, nourishment and
attendant charges, apart from conveyance charges, hence
I propose to award Rs.50,000/- as against Rs.15,000/-
awarded by the Tribunal.
25. Insofar as the future medical expenses is concerned
the Doctor has not stated about any future medical
expenses, though there is no evidence on record, looking
to the leg of the petitioner, definitely she may require
some future medical expenses if any pain arises while
walking or sitting. Therefore, she has to go for further
treatment if any required. Therefore, considering the facts
and circumstances of the case, I propose to award
Rs.25,000/- towards future medical expenses.
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Accordingly, the petitioner is entitled for compensation
under various heads as follows :-
a. Towards pain and agony Rs. 50,000/-
b. Towards medical expenses Rs. 32,776/-
c. Loss of amenities Rs.1,00,000/-
d. Towards Food, Nourishment
and Attendant charges Rs. 50,000/-
e. Loss of income during laid up
period Rs. 72,500/-
f. Loss of future income
due to disability Rs.3,12,200/-
g. Future medical expenses Rs. 25,000/-
____________
TOTAL Rs.6,43,476/-
____________
26. Accordingly, I pass the following :-
ORDER
a. The MFA No.5037/2023 filed by the KSRTC is hereby
allowed in part.
b. The MFA Crob No.105/2023 is hereby allowed in
part.
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c. The appellant/claimant is entitled for enhanced
compensation of Rs.6,43,476/- together with
interest at 6% p.a instead of 9% p.a. awarded by
the Tribunal, interest excluding the future medical
expenses.
d. Respondent is directed to deposit the amount within
60 days from the date of receipt of a copy of this
order.
e. The amount in deposit in MFA is directed to be
transmitted to the concerned Tribunal.
f. Out of the compensation awarded 50% of the
amount shall be kept in fixed deposit, and the
remaining 50% be released in favour of the claimant.
Sd/-
JUDGE
NG
