Dismissed

The Divisional Controller, v. Venkatraman Sukru Patgar

Karnataka HC12 Sept 2019MFA/100236/2015

Case brief

AI extract

What is this about?

NWKRTC appealed against Additional MACT Kumta awarding compensation to a bus passenger injured during alighting. High Court dismissed appeal, finding Tribunal rightly held driver negligent and compensation quantum reasonable considering injury severity and disability.

What did the court decide?

Appeal dismissed; appellant directed to deposit award amount with interest within four weeks; amount transmitted to Tribunal.

The Divisional Controller, Vs Venkatraman Sukru Patgar — Motor Accident Claims | Karnataka HC (2019)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶2

DATED THIS THE 12^TH DAY OF SEPTEMBER, 2019

¶3

BEFORE

¶4

THE HON’BLE MR.JUSTICE K. NATARAJAN

¶5

MISCELLANEOUS FIRST APPEAL NO.100236/2015(MV)

¶6

BETWEEN:

¶7

THE DIVISIONAL CONTROLLER, NWKRTC, SIRSI DIVISION, SIRSI 581 401 REPRESENTED BY, CHIEF LAW OFFICER NWKRTC, GOKUL ROAD, HUBLI – 580 030 DIST: DHARWAD.

¶8

... APPELLANT

¶9

(BY SRI. M K SOUDAGAR, ADVOCATE)

¶10

AND:

¶11

VENKATRAMAN SUKRU PATGAR, AGED ABOUT 42 YEARS, OCC: COOLIE, R/O. MASUR CROSS, CHITRIGI,

¶12

TQ. KUMTA 581 343

¶13

SATYANARAYAN GOVIND NAIK DRIVER, BATCH NO. 598, NWKRTC, KUMTA DEPOT, KUMTA 581 343 DIST. UTTARA KANNADA.

¶14

... RESPONDENTS

¶15

(BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R1; R2 & R2 - SERVED)

¶16

¶17

THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:21.08.2014, PASSED IN MVC.NO.159/2012, ON THE FILE OF THE MEMBER ADDITIONAL MACT, KUMTA, AWARDING COMPENSATION OF Rs.5,89,480/- ALONG WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE PETITION TILL ITS REALISATION.

¶18

¶19

THIS APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶20

JUDGMENT

¶21

Though this appeal came up for considering I.A. for withdrawal of the amount in deposit, with the consent of both the learned counsel, it is heard finally.

¶22

This appeal is filed by the NWKRTC,

¶23

assailing the judgment and award passed by the Addl. MACT, Kumta (hereinafter referred to as ‘the Tribunal’, for short), in MVC No.159/2012 dated 21.08.2014.

¶24

Heard the arguments of learned

¶25

counsel for both the parties.

¶26

The ranks of the parties before the Tribunal is retained for brevity.

¶27

¶28

The claimant filed a petition under

¶29

Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short), claiming compensation of Rs.10,00,000/interalia contending that, on 20.09.2008, the claimant boarded Kumta-Aghanashini bus bearing registration No.KA-25/F-2468 at Kumta bus-stand. When the said bus reached near Masur Cross, the driver of the bus had stopped the bus. While the claimant was getting down from the bus, the driver of the bus without giving any signal suddenly moved the vehicle forward. The claimant fell down on the road and the rear wheel of the bus ran over the right leg of the claimant and thereby, he sustained injuries on his leg. He was taken treatment in the hospital for six months and spent amount towards medical and other expenses. Due to the injuries he is suffering from disability and loss

¶30

¶31

of earning capacity. Hence claimed

¶32

compensation on various heads.

¶33

In pursuance to the notice, the

¶34

respondents appeared through their counsel. Respondent No.2 filed written statement denying the averments made in the petition and further denying the rash and negligent driving of the NWKRTC driver and the nature of the injuries, medical expenses, disability etc., and prayed for dismissal of the claim petition.

¶35

Further a specific plea has been taken that there is negligence on the part of the claimant as he has jumped down from the bus before stopping and therefore there is contributory negligence on his part. If any liability, the same may be considered as contributory negligence with equal ratio.

¶36

¶37

Based upon the rival contentions, the

¶38

Tribunal framed the following issues:

¶39

i. Whether the petitioner proves that he has sustained the injuries mentioned in column No.11 of the petition in the road accident as averred therein?

¶40

ii. Whether the petitioner proves that the accident has occurred due to the rash and negligent driving of the bus bearing No.KA-31/F-2468 as averred in the petition?

¶41

iii. Whether the petitioner proves that he is entitled for compensation as claimed in the petition?

¶42

iv. If so, for what quantum and from whom?

¶43

v. What order or award?

¶44

To substantiate his contention, the

¶45

claimant examined himself as PW1 and got examined 3 witnesses on behalf of PW2 to PW4

¶46

¶47

and got marked 63 documents as per Exs. P1 to P63. On behalf of respondents, the respondent No.1, who is the driver of the bus, is examined as RW1 and no documents were got marked on behalf of the defendants.

¶48

The Tribunal answered issues No.1 to 3 in the affirmative and awarded a compensation of Rs.5,89,480/- to the claimant.

¶49

Assailing the judgment and award passed by the Tribunal, NWKRTC preferred this appeal challenging the quantum of compensation as well as contributory negligence.

¶50

Counsel for the appellant – Sri. M. K.

¶51

Soudagar argued that the Tribunal ignored the evidence of RW1, who is the driver of the vehicle and who has stated before the Court that there is contributory negligence on the part of the claimant, who got down from the bus before it is

¶52

¶53

stopped and the claimant has also not produced any document to prove the income. But the Tribunal considered Rs.5,000/as monthly income of the claimant, which is not correct. The disability is given by the doctors to the extent of 75% to both the limbs. Such being the case, 1/3^rd of disability i.e., 25% is considered to the whole body and the Tribunal considered 50% which is exorbitant. Further, awarding compensation on the conventional heads i.e., pain and suffering, attendant charges, diet, transportation are on the higher side. Hence he prayed for allowing the appeal.

¶54

Per contra, learned counsel appearing for the claimant supported the judgment and award passed by the Tribunal and contended that the claimant being the coolie, he used to climb the coconut tree for cutting tender

¶55

¶56

coconuts and he has lost the earning capacity to the extent of 100%. He lost both legs as there were grievous injuries. The Tribunal has considered only 50% disability which is not correct. The Tribunal ought to have considered 75% disability and therefore, the question of reducing the percentage of disability to the whole body does not arise. Even otherwise, the learned counsel contended that Rs.5,000/- per month considered as income for the accident occurred in September, 2008 and the compensation awarded under other conventional heads is also very meager. In support of his contention, he has also relied upon the photographs of the claimant and the medical reports and prayed for dismissing the appeal.

¶57

Considering the evidence on record and upon hearing the arguments of the parties,

¶58

¶59

the points that arise for my consideration in this appeal are:

¶60

i. Whether the Tribunal is justified in fastening the liability wholly on the bus belonging to the appellantNWKRTC?

¶61

ii. Whether the award of compensation of Rs.5,89,480/- is exorbitant and calls for interference?

¶62

iii. What order?

¶63

The claimant by his evidence has

¶64

established that the accident dated 20.09.2008 was occurred when he was alighting from NWKRTC bus bearing registration No.KA-25/F2468 at Masur Cross. Though RW1 was examined before the Court, being the driver used to deny the rash and negligent driving, but the fact remain that the accident occurred due to all of a sudden taking off the vehicle before the

¶65

¶66

claimant alighting from the bus and the rear wheel of the bus ran over on the leg of the claimant, due to which the claimant sustained crush injury which is grievous in nature. The documents at Ex.P1 – FIR, Ex.P2 – complaint, Ex.P4 - Spot sketch, Ex.P5 – wound certificate, Ex.P6 – M.V.A. report and Ex.P7 – charge sheet all clearly corroborate the evidence of PW1 - claimant. The said documents were not at all challenged by the respondent No.1 before any Court of law. Therefore, the Tribunal rightly considered the evidence on record and fastened the entire negligence and liability on the driver and the NWKRTC. Therefore, there is no need

¶67

for taking a contra view regarding the contributory negligence on the part of the claimant and driver of the vehicle. Hence I answer point No.1 against the appellant – NWKRTC and in favour of the claimant.

¶68

¶69

compensation, the claimant has contended that

¶70

he was earning Rs.8,000/- per month as coolie. However, he has not produced any document to show that he was earning Rs.8,000/- per month. Normally this Court used to consider Rs.4,250/as notional income for the unskilled labour who sustained injuries and died in the year 2008. But here in this case, the Tribunal has considered Rs.5,000/- per month as income. Though the Court used to consider Rs.4,250/per month as notional income for the unskilled labour, but this accident has occurred on 28.09.2008 i.e., almost close to 2009. This Court also used to consider Rs.5,000/- per month for the accidents of the year 2009. Therefore, considering Rs.5,000/- per month as income does not call for interference of this Court.

¶71

¶72

As regards disability, the claimant

¶73

examined one Dr. Sudhakar T. as PW2. Ex.54 – disability certificate, shows that the claimant suffered mal-united fracture to both tibia and fibula left leg and also right leg. The disability is assessed by the doctor at 75% to both the lower limbs and it is also mentioned by the doctor that the disability to the left leg is 62% and disability to the right leg is 42% and comparatively and conjointly 75% to the lower limbs. Normally the Court used to consider 1/3^rd of disability to the whole body in respect of 75% to the limb. But here in this case, the petitioner being the coolie and the injury sustained are crush injuries and both the legs are seriously injured and the photographs produced by the claimant show the disability sustained by the claimant. The claimant being coolie, normally though the disability to be 1/3^rd

¶74

¶75

for loss of earning capacity for the coolie, but he may not lift any weight or do any coolie work and he cannot climb the coconut tree. Hence, it is required to be considered at least 50 – 75% loss of earning capacity. The Tribunal considering the evidence on record has considered 50% of disability towards the whole body, which calls for no interference. It cannot be considered to be excessive. The Tribunal also awarded Rs.50,000/- towards pain and suffering and Rs.14,480/- towards medical expenses and the same does not require any interference. As regards conveyance, attendant charges, special diet and misc. expenses, the Tribunal has awarded Rs.15,000 + Rs.43,200 + Rs.16,800 totally Rs.75,000/- based upon the evidence on record. In my considered view, the same does not call for any interference and not required to be reduced. As regards loss of income during

¶76

¶77

the laid up period, Rs.30,000/has been

¶78

awarded by the Tribunal and the same cannot be disturbed. Totally the Tribunal has awarded Rs.5,89,480/- to the claimant.

¶79

Considering the evidence on record and the document, though the claimant has not filed any appeal, by looking to the facts and circumstances of the case, I do not find any error or illegality committed by the Tribunal to show that the compensation awarded is exorbitant and excessive which calls for reduction. Hence I answer point No.2 against the appellant.

¶80

Accordingly, the appeal filed by the

¶81

NWKRTC deserves to be dismissed. Accordingly it is dismissed.

¶82

The amount in deposit be transmitted to the Tribunal. The appellant-NWKRTC is directed

¶83

¶84

to deposit the award amount with up to date interest within four weeks from the date of

¶85

receipt of copy of this judgment.

¶86

Sd/JUDGE

¶87

gab

The Divisional Controller, v. Venkatraman Sukru Patgar

Case brief

What is this about?

What did the court decide?

The Divisional Controller, v. Venkatraman Sukru Patgar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt.Shweta W/O. Manjunath Shanubhogar Vs Shri.Manjunath S/O. Parasanagouda Shanubhogar

Bharati Axa General Insurance Vs Abdul Razak S/O. Honnursab Koppal

The Bajaj Allianz General Insurance Co. Ltd., Vs Dastagir Bin Khemulsab Bepari

New India Assurance Co., Ltd., Vs Dhondiba S/O Duba Kamble

New India Assurance Co., Ltd., Vs Maruti S/O Babu Talwar

New India Assurance Co., Ltd., Vs Dasharath S/O Krishna Naik