Karnataka High Court
Sri Jayanna vs The Divisional Controller on 28 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 6 OF 2021 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1715 OF 2022
IN MFA NO. 6/2021
BETWEEN:
THE DIVISIONAL CONTROLLER,
KSRTC, DEPOT,
CHIKKAMAGALURU,
REPRESENTED BY ITS
CHIEF LAW OFFICER,
BANGALORE.
...APPELLANT
(BY SRI. LAKSHMEESH RAO, ADVOCATE)
Digitally signed by AND:
VEDAVATHI A K
Location: High
Court of Karnataka 1. SRI. JAYANNA
S/O MANJAIAH,
AGED ABOUT 44 YEARS,
AGRICULTURIST & BUSINESS,
R/O NO.341, KOPPALU,
MAHESHWARI NAGARA,
SAKLESHPURA TOWN,
HASSAN DISTRICT.
2. SRI. GANGADHARA
S/O. LATE. RACHAIAH,
-2-
NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
AGED ABOUT 41 YEARS,
DRIVER OF THE KSRTC BUS,
BEARING REGISTRATION NO. KA-18-F-474,
WORKING AT MUDIGERE DEPOT,
CHIKKAMAGALURU DISTRCT,
R/O. MINKERA VILLAGE,
HUMNADABADH TALUK,
BIDAR DISTRICT.
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1;
R2 SERVED, BUT UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 17.02.2020 PASSED IN MVC NO.49/2019 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MUDIGERE,
AWARDING COMPENSATION OF RS.10,41,434/- WITH
INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION
TILL REALIZATION.
IN MFA NO. 1715/2022
BETWEEN:
SRI. JAYANNA
S/O MANJAIAH,
AGED ABOUT 45 YEARS,
AGRICULTURIST & BUSINESS,
R/AT NO.341, KOPPALU,
MAHESHWARI NAGARA,
SAKLESHPURA TOWN,
HASSAN DISTRICT - 573 201.
...APPELLANT
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
-3-
NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
AND:
1. THE DIVISIONAL CONTROLLER,
KSRTC, DEPOT,
CHIKKAMAGALURU - 577 101.
2. SRI. GANGADHARA
S/O. LATE RACHAIAH,
AGED ABOUT 42 YEARS,
BEARING REGISTRATION NO.KA-18-F-474,
WORKING AT MUDIGERE DEPOT,
CHIKKAMAGALURU DISTRCT,
R/AT MINKERA VILLAGE,
HUMNADABADH TALUK,
BIDAR DISTRICT - 585 330.
...RESPONDENTS
(BY SRI. G.LAKSHMEESH RAO, ADVOCATE FOR R1;
VIDE ORDER DATED:28/01/2024, NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 17.02.2020 PASSED IN MVC NO.49/2019 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MUDIGERE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-4-
NC: 2024:KHC:24122
MFA No. 6 of 2021
C/W MFA No. 1715 of 2022
JUDGMENT
MFA No.6/2021 is filed by the KSRTC, challenging the
liability and reduction of compensation awarded by the Senior
Civil Judge and MACT, Mudigere, in MVC No.49/2019 dated
17.02.2020, whereas MFA No.1715/2022 is filed by the
claimant for enhancement of compensation in the same case.
2. Heard the arguments of both counsel appearing for
the parties.
3. The appellant in MFA No.1715/2022 was the
claimant/ petitioner before the Tribunal. Appellant in MFA
No.6/2021-KSRTC was the respondent No.1 before the
Tribunal. The status of the parties before the Tribunal is
retained for the sake of convenience.
4. The case of the petitioner is that the petitioner filed
a claim petition under Section 166 of the Motor Vehicles Act for
claiming compensation of Rs.50,00,000/- for the injuries
sustained by him in the road traffic accident dated 29.06.2018.
It is pleaded by him that on 29.06.2018 at 11.30 p.m., when
he was proceeding in a Maruthi car bearing Registration No.KA-
17-N-9697 from Hosapura towards Mudigere in a moderate
NC: 2024:KHC:24122
speed by observing all the traffic rules and regulation, at that
time, a KRTC bus bearing No.KA-18-F-474 driven by its driver
in a rash and negligent manner came from opposite direction
and dashed against the Maruthi car, due to which, the car was
completely damaged. The claimant sustained grievous injuries
on the leg, face and other parts of the body. He was taken to
M.G.M.Hospital, Mudigere and later, he was shifted to Father
Muller's Hospital, Mangalore. Again, he took treatment at
A.G.Hospital, Mangalore. Admittedly, he was in the hospital for
more than a month and due to the injuries, he is suffering from
disability. He is an Agriculturist as well as Businessman
earning more than Rs.20,000/- p.m. He has incurred loss of
income, as he is unable to work due to the injuries suffered by
him in the accident. Hence, prayed for enhancement of
compensation.
5. In pursuance of issuance of notice, the Respondent
No.1/driver as well as the KSRTC entered appearance and filed
statement of objection, denying the rash and negligent driving
of the KSRTC bus by its driver and contended that this accident
has occurred due to the rash and negligent driving of the driver
of Maruthi car himself, as the bus was on the extreme left side
NC: 2024:KHC:24122
of the road. Further, the age, occupation, income and
disability caused to the claimant are admitted by the KSRTC.
Based upon the pleading, the Tribunal has framed the following
issues:
1. Whether the petitioner proves that, on
29.06.2018 at about 11.30 a.m. the petitioner was
proceeding in a Maruthi Car bearing Regn. No.KA-
17/N-9697 from Hosapura to Mudigere in front of
Somegowda's Estate, Jenubailu Village at that time
respondent No.1 being the driver of KSRTC bus
bearing Regr.No.ΚΑ-18/F- 474 drove the bus in a
rash and negligent manner and dashed against the
Maruthi car in which petitioner was proceeding and
due to the said accident the petitioner sustained
injuries?
2. Whether the petitioner is entitled for
compensation as claimed? If so, for what amount?
3. From whom petitioner is entitled to claim
compensation?
4. What order or award?
6. To substantiate the case, the claimant examined
himself as P.W.1 and also examined Dr.Niyath as P.W.2 and got
marked 279 documents as per Exs.P1 to P279. The 1st
respondent-driver is examined as R.W.1 and got marked
Exs.D1 to D3. After hearing arguments, the Tribunal answered
NC: 2024:KHC:24122
Issue No.1 in the affirmative. Issue Nos.2 and 3 partly in the
affirmative and awarded compensation of Rs.10,41,434/- on
the following heads as under:
Loss of earning capacity Rs.2,23,944/-
Pain and sufferings Rs.1,00,000/-
Medical expenses Rs.4,89,490/-
conveyance/travelling expenses Rs.40,000/-
Attendant's charges and nutritious Rs.30,000/-
food.
Loss of income during treatment Rs.48,000/-
period and rest period
Future Medical expenses Rs.60,000/-
Loss of amenities Rs.50,000/-
TOTAL Rs.10,41,434/-
7. Being aggrieved by the fastening of the liability on
the KSRTC and on the quantum of compensation, the Divisional
Controller of KSRTC filed appeal in MFA No.6/2021 whereas the
claimant filed appeal in MFA No.1715/2022 for enhancement of
compensation.
8. Counsel for the respondent/KSRTC has seriously
contended that the Tribunal committed an error in holding that
the negligence was on the part of the driver of the bus even
though R.W.1 examined himself and got marked three
documents vide Inspection Report-Exs.R1 and statement of one
NC: 2024:KHC:24122
Girish-Ex.R2 and statement made by the Divisional
Commissioner-Ex.R3 and examined R.W.1-Gangadhara to
prove that this accident has occurred due to the negligence on
the part of the claimant, but not KSRTC driver and such being
the case, even on perusal of the photograph produced along
with I.A under Order 41 Rule 27 of CPC, the bus was standing
on the extreme left side of the road which goes to suggest that
the accident is due to the rashness and negligence on the part
of the driver of the Maruthi car. Therefore, the Tribunal
fastening the liability on the KSRTC is not correct and
alternatively, fixed the contributory negligence on the part of
both the driver and the claimant. Hence, prayed for allowing
the appeal.
9. Alternatively, the learned counsel for the appellant
also contended that the Tribunal committed an error in taking
25% of the income as future prospects as there are no
documents produced to prove the income and there is no
physical functional disability for doing work and total disability
itself is considered as 13.33%. Therefore, taking 25% of
income towards future prospects is correct and award of
compensation under other heads is also exorbitant.
NC: 2024:KHC:24122
10. Per contra, learned counsel for the claimant has
seriously objected the appeal and also supported the Judgment
of the Tribunal in respect of finding on the liability fixed on the
KSRTC, contending that as per the Police records, the bus came
on the extreme right side and due to the negligence on the part
of the driver of the KSRTC bus, the accident has occurred. The
Police have filed charge sheet against the driver of the bus and
the Divisional Controller who submitted the report is also not
examined except the driver of the bus. Therefore, prays that
these documents should not be looked into. Hence, prayed for
confirming the finding on the Issue No.1. It is further
contended in respect of claimant's appeal, that the Tribunal
considered the income of the claimant is only Rs.8,000/- p.m.,
even though in the Lok Adalath, for the accident for the year
2018, notional income of Rs.12,500/- is fixed by the Legal
Services Authority in the absence of any document regarding
salary. As regards pain and suffering and loss of income during
laid up period, they are also on the lower side and requires to
be enhanced. Hence, prays for dismissal of the appeal filed by
the KSRTC.
- 10 -
NC: 2024:KHC:24122
11. Learned counsel for the respondent/KSRTC has also
filed I.A under Order 41 Rule 27 of CPC along with two
photographs contending that these photographs are not
produced before the Tribunal. These photographs clearly show
that the bus was proceeding on the extreme right side of the
road and the accident has occurred on the right side, where
front side of both the vehicles are damaged. It is submitted
that the accident has occurred due to the fault of the claimant.
12. Per contra, learned counsel for respondent objected
the I.A and contended that the bus was parked on the side of
the road for other vehicles to move on the road. Therefore,
that cannot be considered as no offence committed by him. As
per the photographs produced and also as per the Police
records, the accident has occurred due to the negligence on the
part of the driver of the KSRTC bus.
13. Having heard the arguments, perused the records,
the point that arises for my consideration are,
i) Whether the Tribunal justified in holding that the
accident in question dated 29.06.2018 at 11.30
p.m., occurred due to the negligence of the KSRTC
bus and due to which, the claimant sustained
injuries?
- 11 -
NC: 2024:KHC:24122
ii) Whether the appellant made out sufficient cause
for adducing additional evidence under Order 41
Rule 27 of CPC?
iii) Whether the claimant is entitled for
enhancement of compensation as the compensation
awarded is meager and requires enhancement as
claimed by the claimant? If so, what amount?
iv) Whether the amount of compensation awarded
by the Tribunal is excessive and liability to be
reduced?
14. On perusal of the records, the facts of the case are
that the bus came from Mudigere to Hosapura, whereas the
Maruthi car driven by the claimant was going towards Mudigere
from Hosapura. The accident was occurred at 11.30 p.m. As
per the contention of the claimant, the car was being driven on
the left side of the road, whereas the bus came in the opposite
direction on the right side and dashed to the vehicle. As per
the IMV report, the front side of the bus on the right side was
damaged. The front end lower half portion of the right side of
the bus was damaged. Whereas, the car also suffered
damages on the right side portion which is broken into pieces
and half portion of the body and doors were smashed and right
head light indicator and front screen are damaged. The
damage caused to the Maruthi car was much more than the
- 12 -
NC: 2024:KHC:24122
damage caused to the bus. As per the Police report, Ex.P4-spot
mahazar produced by the claimant, the sketch was prepared by
the Police, which reveals that the bus was coming from
Mudigere to Belur. Whereas the claimant was moving from
Hosapura towards Mudigere. The accident spot has been
inspected and bus was on less than the middle of the road
towards right side which clearly suggests that the bus came
from opposite direction instead of going on the left side has
come on the right side. Whereas the car was going from
Hosapura to Mudigere on the left side of the road. It clearly
indicates that the accident has occurred due to the rash and
negligent driving of the KSRTC driver. Though the Respondent
No.1 examined himself and produced Exs.R1 to R3, where the
report was prepared by the Divisional Controller by examining
the driver of the bus stating that this accident occurred due to
the negligence of the driver of the car. But there are no
independent witnesses examined by the Divisional Controller,
i.e., any passenger from the bus before filing of the report to
show whether there was no negligence on the part of the driver
of the KSRTC bus. Mere omission on the part of the Divisional
Controller to examine independent witness or Police records are
- 13 -
NC: 2024:KHC:24122
not enough to prove or disprove the case of the claimant.
Therefore, the Tribunal rightly held on the basis of Ex.R1,
..police records, charge-sheet and IMV report and panchanama
that the accident has occurred due to the rash and negligent
driving of the KSRTC bus. Therefore, there is no need to
interfere with the finding recorded by the Tribunal.
15. As regards to the quantum of compensation, both
the respondents as well as the claimant have filed this appeal
disputing the quantum of compensation awarded by the
tribunal. Looking to the evidence of the petitioner, he has
stated that he is an agriculturist and a business man and
earning Rs.20,000/- per month. But no documents were
produced to prove the income of the petitioner. Such being the
case, there is no other option for the court to consider the
notional income. As per the notional income recognized by the
Karnataka State Legal Services Authority, an income of
Rs.12,500/- p.m. to be considered for the accidents occurred
during 2018. Therefore, I propose to take Rs.12,500 as
notional income of the petitioner whereas, the tribunal taken
Rs. 8,000/- per month, which is very meagre. Therefore, the
- 14 -
NC: 2024:KHC:24122
same is required to be enhanced. However, the learned
counsel for the respondent has contended that there is no loss
of future prospectus in order to take 25% of the income, as
considered by the tribunal. Also contended when the disability
itself is at 13% to the whole body, question of taking 25% as
future prospectus is exorbitant and cannot be considered.
Whereas, respondent counsel contended, due to disability, he
lost the earning capacity and he cannot work as he was
working earlier. He is unable to do agricultural work in the field.
Therefore, it is contended that definitely there is a loss of future
prospectus and the same to be considered at 25%.
16. The tribunal while considering 25% of the future
prospectus, relied upon the judgment of the Hon'ble Supreme
Court, wherein there was disability of 85% to the lower limb,
whereas the tribunal considered only 30% to the whole body
and High Court determined the disability to 65%, wherein there
was amputation of the leg and the amputated leg was planted.
But here in this case, no such amputation has taken place. It
is only the disability of 40% to the right limb. Therefore, 1/3rd
of the disability is rightly taken by the tribunal. However the
- 15 -
NC: 2024:KHC:24122
future prospectus, there is no proper evidence regarding
functional disability found. Considering the same, there is no
question of future loss of prospectus for the claimant and the
very injury sustained by him to the limb was 40% assessed by
the doctor and 1/3rd is 13.33%. Such being the case, there is
no question of granting any loss of future prospectus.
Therefore, in this regard Rs.12000/- calculated by the tribunal
is liable to be set aside. However, 40% of disability shown
earlier, the injuries on consideration there was fracture of
humerus left, fracture of shaft right femur, proximal right tibia
etc., As per Ex.P8, the discharge summary issued by the
hospital, which reveals he has undergone surgery for Fracture
Humerus Left (Distal 1/3rd), Fracture Shaft of femur, fracture
proximal tibia and there were two operations done in two
different days and steel plates were fixed and definitely there
will be disability of more than 13% to the whole body.
Therefore, I propose to consider instead of 13.33% to consider
15% of disability towards the whole body.
17. As regards to the pain and suffering, tribunal
has awarded Rs.1 lakh and petitioner was admitted to the
hospital for more than one month and there was three to four
- 16 -
NC: 2024:KHC:24122
fractured, injuries. Therefore, there is no need to either reduce
or enhance.
18. As regards to medical expenses awarded by the
tribunal Rs.4,89,490/- has been paid, based upon the medical
records and it does not require any interference.
19. The conveyance charges, attendant charges,
nutritious food etc., awarded by the tribunal in total was
Rs.70,000/- (Rs.40,000 + Rs.30,000) granted by the tribunal
and it is just and appropriate.
20. As regards to laid-up charges, six months calculated
by tribunal and if Rs.12,500/- p.m. is considered for six
months, the same will be Rs.12,500/- x 6 = Rs.75,000/-
(instead of Rs.48,000/-).
21. Future medical expenses, Rs.60,000/- is awarded
by the tribunal and the same does not require interference.
22. Loss of amenities is awarded to an extent of
Rs.50,000/- and the same is just and proper.
- 17 -
NC: 2024:KHC:24122
23. As regards to the loss of income due to disability, if
the income of the injured is considered as Rs.12,500/-
multiplied into 12 months and further multiplied to 14 multiplier
x 15% of disability is considered which is as under;
Rs.12,500/- x 12 x 14 x 15% = Rs.3,15,000/- is
granted towards loss of future earning capacity. (instead of
Rs.2,23,944/-).
24. The components awarded by this court are as below,
Particulars Amount
in Rs.
Loss of earning capacity Rs.3,15,000/-
Pain and sufferings Rs.1,00,000/-
Medical expenses Rs.4,89,490/-
conveyance/travelling expenses Rs.40,000/-
Attendant's charges and nutritious Rs.30,000/-
food.
Loss of income during treatment Rs.75000/-
period and rest period
Future Medical expenses Rs.60,000/-
Loss of amenities Rs.50,000/-
TOTAL Rs. 11,59,490/-
ROUNDED OFF TO Rs. 11,60,000/-
25. Accordingly, I pass the following:
- 18 -
NC: 2024:KHC:24122
ORDER
i. Both appeals are allowed in part.
ii. The judgment of the tribunal, by the Senior Civil Judge
and MACT, Mudigere, in MVC No.49/2019 dated
17.02.2020, is hereby modified.
iii. The claimant are entitled to a total compensation for a
sum of Rs.11,60,000/- with interest at the interest rate
of 6% p.a., instead of Rs.10,41,434/- granted by the
tribunal.
iv. The enhanced compensation amount shall be paid by the
respondent-Insurance Company with interest @ 6% per
annum, excluding the future medical expenses, within a
period of two months from the date of receipt of a copy of
this order.
v. The amount in deposit made by the respondent/KSRTC in
MFA No.6/2021 shall be ordered to be transmitted to the
tribunal.
vi. The enhanced amount to be released to the claimant.
- 19 -
NC: 2024:KHC:24122
vii. The Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay; and
viii. Draw award accordingly.
Sd/-
JUDGE
BNV/AKV
