Partly allowed

The Divisional Manager v. Smt Rekha R

Karnataka HC18 Nov 2020MFA/3861/2017

Case brief

AI extract

What is this about?

This court allowed the appeal in part against a Motor Vehicle Accident award. While affirming liability and the loss of income during layup due to leave with loss of pay, the court set aside future loss of earnings due to post-accident salary revision but awarded additional compensation for disability, pain, and amenities, reducing the total.

What did the court decide?

The total compensation was reduced to Rs. 12,57,866/- by setting aside future loss of earnings but awarding additional amounts for disability, pain and sufferings, and loss of amenities.

The Divisional Manager Vs Smt Rekha R — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.3861 OF 2017 (MV-D)

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BETWEEN:

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THE DIVISIONAL MANAGER KSRTC BEJAI MANGALURU-575 001 NOW BY THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICE K.H.ROAD, SHANTHINAGAR BANGALORE-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER

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....APPELLANT

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(BY SRI. F.S. DABALI, ADVOCATE)

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AND:

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SMT. REKHA R W/O VIPIN KUMAR N AGED ABOUT 32 YEARS PERMANENTLY R/AT DOOR NO.8-4-2/A SAI PRABHA, KANHANGAD

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NITTADUKAM, KASARGOD KERALA STTE, PIN-671 315

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NOW R/AT SAI PRADHA NADUPADAVU NEAR P.A.COLLEGE KONAJE, MANGALURU D.K. PIN-575 001

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….RESPONDENT

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(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.01.2017 PASSED IN MVC NO.411/2015 ON THE FILE OF THE MACT AND I ADDITIONAL SENIOR CIVIL JUDGE MANGALOURU D.K, AWARDING COMPENSATIION OF RS.16,88,671/- WITH INTEREST 6% P.A. ON 16,73,671/- FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.

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THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned appeal is filed by the KSRTC against the judgment and award passed in MVC.No.411/2015 challenging the negligence as well as quantum.

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For the sake of convenience, the parties are

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referred to as per their rank before the Tribunal.

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The facts leading to the case are as under:

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The claimant filed claim petition for having sustained grievous injuries in a road traffic accident dated 30.10.2014. The claimant has specifically contended that the accident occurred on account of rash and negligent driving by the driver of the offending bus. The claimant has specifically contended that prior to accident, she was hale and healthy, hardly aged 30 years and was working in Infosys Company drawing a salary of Rs.57,543/- p.m. It is specifically stated in the claim petition that on account of accident, the claimant has sustained physical disability and as such, is unable to work with the same efficiency which she was working prior to accident and thereby is facing financial crisis. The claimant further contended that she is suffering physical disability at 24% to the limb and on these pleadings, claim petition was filed claiming compensation of Rs.7,00,000/-.

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On receipt of notice, the Corporation tendered

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appearance and filed written statement. The Corporation has stoutly denied the entire averments made in the claim petition. The Corporation has disputed the claim on the ground that it is highly exorbitant. A specific contention is also taken that claimant was rash and negligent and was responsible for the accident. It is also stated in the written statement that petition is bad for non-joinder of necessary parties.

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Based on the rival pleadings, the Tribunal formulated the following issues:

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"1) Whether the petitioner proves that, she has sustained injuries in a Road Traffic Accident occurred on 30-10-2014 at 1.40 p.m. Near Nisarga Bar, Talapady, Mangaluru on NH-66 due to rash and negligent driving of KSRTC Bus driver bearing Regn.No.KA-19/F-3184?

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2) Whether the petitioner is entitled for the compensation from the respondents, as claimed in the petition?

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3) What Order or Award?"

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The claimant in support of her contention has examined herself as PW.1 and has examined PW.3 - Doctor to corroborate the disability sustained by her. To corroborate ocular evidence, the claimant has produced documentary evidence vide Exs.P-1 to P-42. The Corporation in support of its contention has examined the driver of the bus as RW.1 and has produced policy copy which is marked as Ex.R-1.

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The Tribunal by assessing the disability at 9% to the whole body and by assessing the income of the claimant at Rs.42,263/- p.m. by relying on the salary certificate as per Ex.P-13 has proceeded to award a sum of Rs.7,30,305/- under the head of future of loss of earnings. The Tribunal further has awarded a sum of Rs.8,45,260/- towards loss of income

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during laid up period. The Tribunal, in all, has awarded total compensation of Rs.16,88,671/-.

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Learned counsel appearing for the

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appellant/Corporation would vehemently argue and contend before this Court that the claimant admittedly is a Software Engineer and this material aspect is not at all taken note of by the Tribunal which has a relevancy while examining the question as to whether the claimant is entitled for compensation under the head of future loss of earnings. He would also further submit before this Court that in fact there is a revision of salary of the claimant and there is absolutely no loss of income on account of disability suffered by the claimant on account of accidental injuries. The Tribunal without examining these material aspects has proceeded to award compensation under the head of future loss of earnings. Insofar as negligence is concerned, the learned counsel for the Corporation would contend before us that the Tribunal erred in fastening the entire negligence on the driver of the offending

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bus. The grievance of the Corporation before this Court is that Tribunal has not examined the ocular evidence of driver of the offending bus who is examined as RW.1. The Tribunal has also not taken note of the IMV report as per Ex.P-10 which would have a bearing on the negligence. On these set of grounds, learned counsel appearing for the Corporation would submit to this Court that the Tribunal erred in fastening the entire negligence on the driver of the offending bus.

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Per contra, learned counsel appearing for the respondent/claimant would vehemently argue and support the reasonings and findings recorded by the Tribunal. He would submit to this Court that the claimant is a Software Engineer and in software field, the Engineers have better opportunities and there would be hike in salary every time they opt for new jobs based on experience. The disability incurred by the claimant has hampered all these prospects. In this background, he would submit to this Court that the

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compensation in fact arrived at by the Tribunal is on the lower side and would not warrant any interference by this Court.

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To buttress his arguments, learned counsel for the respondent/claimant has relied on the judgments of the Hon'ble Apex Court in the case of Erudhaya Priya vs. State Express Transport Corporation Ltd. passed in Civil Appeal Nos.2811-2812/2020 decided on 27.07.2020 and Sandeep Khanuja vs. Atul Dande and Another reported in Laws (SC) 2017 (2) 4.

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Heard learned counsel for the appellant/Corporation and learned counsel for the respondent/claimant.

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Regarding negligence:

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The claimant to prove that the driver of the offending bus was rash and negligent and was responsible for the accident have produced copy of FIR as per Ex.P-1, complaint as per Ex.P-2, charge sheet as per Ex.P-7 and spot sketch as per Ex.P-9. By way of rebuttal evidence, the

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Corporation has tried to displace this clinching evidence by examining the driver of the offending bus. In examination-inchief, the driver of the offending bus has stated that the rider of the bike while attempting to overtake the bus has suddenly taken the bike on the extreme right side and thereby has caused the accident. This ocular evidence of RW.1 - Driver does not find a place in the written statement filed by the Corporation. The accident has occurred on 30.10.2014 whereas this written statement was filed on 06.08.2015. This material aspect that it was the rider of the bike who while attempting to overtake the bus veered the bike on the extreme right side and thereby caused the accident is not at all stated in the written statement. In this background, if we meticulously examine the ocular evidence of the driver of the offending bus, we are of the view that this statement made during trial is an after thought. The ocular evidence of RW.1 would not come to the aid of the Corporation insofar as negligence is concerned. The Tribunal having assessed the

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oral evidence of claimant and oral evidence lead in by the Corporation and also by meticulously examining the documentary evidence regarding the manner in which the accident has taken place has come to conclusion that it is the driver of the offending bus who was responsible for the accident and accordingly, answered issue No.1 in the affirmative. The finding arrived at by the Tribunal does not suffer from any illegality or infirmities. In that view of the matter, we would affirm the findings and reasonings assigned by the Tribunal while dealing with issue No.1. Accordingly, the contention raised by the appellant/Corporation in regard to negligence stands negatived.

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Regarding quantum:

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The claimant has suffered right thigh puncture wound (one) crepitus and fracture of neck of femur. The Doctor who is examined as PW.3 has opined that injury No.1 is grievous in nature. The medical evidence on record indicates that claimant is suffering from physical disability at 24% to the

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affected limb. The Tribunal while assessing the disability has assessed the disability at 9% to the whole body and by taking the income of the claimant at Rs.42,263/- has awarded a sum of Rs.7,30,305/- under the head future loss of earnings. On perusal of the records and the grounds urged in the appeal memo, we would find some force in the submission made by the learned counsel for the appellant/Corporation. On perusal of Ex.P-41, which is dated 27.03.2015, it is forthcoming that the employer of the claimant has revised the salary of claimant. This material aspect is not at all dealt with by the Tribunal.

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The judgments cited by the learned counsel for the respondent/claimant are not at all applicable to the present case on hand. There is no reduction of salary of the claimant nor it is the case of the claimant that on account of accidental injuries, she is virtually in a vegetative state. Mainly because she has suffered disability that cannot be a ground to seek compensation under the head of loss of earnings along with

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future prospects. The accident is dated 30.10.2014 and if Ex.P-41 is taken into consideration, it is clearly evident that the injuries sustained and consequent disability suffered by the claimant has not at all affected her earning capacity, per contra there is enhancement in her gross salary per month. If this document is taken into consideration, then we would find that the Tribunal was not justified in awarding compensation of Rs.7,30,305/- under future loss of earnings. The said finding is palpably erroneous and contrary to the documents produced by the claimant herself. If there is no reduction in her salary, then we are of the view that the claimant is not entitled for compensation under the above said head and the same is set aside. However, having regard to the gravity of injuries and the permanent disability sustained by the claimant, we would deem it fit to award a sum of Rs.1,00,000/- towards disability.

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The claimant has produced Ex.P-14 which is the certificate issued by the employer. On perusal of Ex.P-14, it is

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forthcoming that claimant was on leave with loss of pay from October 31, 2014 to July 29, 2016 which is almost 20 months. If this evidence is taken into consideration, we are of the view that the compensation of Rs.8,45,260/- awarded by the Tribunal under the head of loss of income during laid up period is fair and just and the same does not warrant any interference by this Court.

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The award of Rs.50,000/- by the Tribunal under the head pain and sufferings appears to be on the lower side. The claimant has sustained grievous injuries in the accident and she had to undergo operation and in that view of the matter, we deem it fit to award a sum of Rs.1,00,000/- under the head pain and sufferings. The award of Rs.14,500/- towards attendant charges, nourishment, conveyance, etc., is very much on the lower side. We deem it fit to award of Rs.29,000/- under the above said head. The award of Rs.33,606/- towards medical expenses is fair and just. Accordingly, the same is retained. Towards loss of amenities,

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we deem it fit to award a sum of Rs.1,00,000/- and towards future medical expenses, we proceed to award a sum of Rs.50,000/-. Thus, the total compensation re-determined by

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this Court under different heads are as under:

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Sl. No.	Heads	Amount in Rs.
1	Pain and sufferings	1,00,000
2	Attendant charges, food	29,000
	nourishment and conveyance
3	Medical expenses	33,606
4	Loss of income during laid up period	8,45,260
5	Towards disability	1,00,000
6	Loss of amenities	1,00,000
7	Future medical expenses	50,000
	Total	12,57,866

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13. Hence, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.12,57,866/- as against Rs.16,88,671/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The Corporation shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As., if any, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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The Divisional Manager v. Smt Rekha R

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Smt Rekha R

Case brief

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