Partly allowed

Sri B M Shivamurthy @ Shivamurthy v. Divisional Controller

Karnataka HC21 Oct 2022MFA/1611/2016

Case brief

AI extract

What is this about?

This High Court allowed appeals partly. It rejected KSRTC's claim that the driver was not in the bus but modified the compensation quantum by correcting the income assumption from Rs.6,000 to Rs.8,000.

What did the court decide?

Both appeals allowed in part; original award modified to Rs.2,48,400/- with 6% interest; Insurance Company directed to pay within six weeks.

Sri B M Shivamurthy @ Shivamurthy Vs Divisional… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2333/2015 (MV-I)

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C/W.

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M.F.A.NO.1611/2016 (MV)

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IN MFA NO.2333/2015

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BETWEEN

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DIVISIONAL CONTROLLER K S R T C, CHIKKAMAGALUR DIVISION CHIKKAMAGALUR-577501

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THE CHAIRMAN, K S R T C INTERNAL SECUTIRY FUNDS SARIGE BHAVANA SHANTHINAGAR, K H ROAD BANGALORE-560027

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BOTH THE APPELLANTS ARE REP BY ITS CHIEF LAW OFFICER

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... APPELLANTS

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(BY SRI F S DABALI, ADVOCATE)

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AND

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1 . SRI B M SHIVAMURTHY @ SHAVAMURTHY S/O MANJAPPA AGED ABOUT 33 YEARS AGRICULTURIST & MILK VENDING BUSINESS R/O HEBBAL VILLAGE DAVANAGERE TALUK & DISTRICT-577001

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IMITIYAZ, S/O NOORJAN

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AGED ABOUT 35 YEARS DRIVER OF KSRTC BUS BEARING REG NO KA-18/F-432 BADGE NO. 496, MOODIGERE DEPOT DISTRICT CHIKKAMAGALUR-577132 R/O P & T QUARTERS, NEAR GANESHA TEMPLE CHITRADURGA-577501

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... RESPONDENTS

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(BY SRI MAHANTHESHA G, ADVOCATE FOR R1; NOTICE TO R2 IS D/W V/O DT.27.04.2015)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.10.2014 PASSED IN MVC NO.704/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND V-MACT, DAVANAGERE.

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IN MFA NO.1611/2016

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BETWEEN

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SRI B M SHIVAMURTHY @ SHIVAMURTHY S/O MANJAPPA AGED ABOUT 36 YEARS AGRICULTURIST & MILK VENDING BUSINESS R/O HEBBAL VILLAGE DAVANAGERE TALUK & DISTRICT

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IMITIYAZ S/O NOORJAN, AGED ABOUT 38 YEARS BEARING REG NO.KA 18/F 432, BADGE NO.496 MOODIGERE DEPOT CHIKKAMAGALURU DISTRICT-57132 R/O P& T QUARTERS, NEAR GANESHA TEMPLE CHITRADURGE-577501

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...APPELLANTS

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(BY SRI MAHANTHESHA G, ADVOCATE)

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AND

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DIVISIONAL CONTROLLER KSRTC, CHIKKAMAGALUR DIVISION CHIKKAMAGALURU-577501

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THE CHAIRMAN, KSRTC INTERNAL SECURITY FUND SARIGE BHAVANA SHANTHINAGAR, K H ROAD BENGALURU-560027

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... RESPONDENTS

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(BY SRI F S DABALI, ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.10.2014 PASSED IN MVC NO.704/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND V-MACT, DAVANAGERE.

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THESE M.F.A.S COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are filed by KSRTC and the claimant challenging the judgment and award dated 16.10.2014 passed in M.V.C.No.704/2013 on the file of the I Additional Senior Civil Judge and V-MACT, Davanagere (‘the Tribunal’ for short).

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Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the claimant before

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the Tribunal is that on 11.02.2013, he was traveling from

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Dharmastala to Davanagere in a KSRTC bus bearing No.KA18-F432 and when the bus reached near Charmudi Ghat curve, Moodigeri taluk, due to rash and negligent driving of the driver of the bus, the bus was turtled and this petitioner had sustained injury and he has traveled in the other bus to Davanagere and took the treatment at C.G. hospital, Davanagere as an out patient and he had suffered the fracture of lateral candyle and also the colcaneum. In order to substantiate the case of the claimant, he has been examined as PW1 and the doctor as PW2. PW2 assessed the disability of 30% to the particular limb and 10% to the whole body and the Tribunal accepting the disability of 10%, awarded the compensation. Being aggrieved by the judgment and award of the Tribunal, the present appeals are filed by the KSRTC and the claimant.

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The counsel appearing for KSRTC would vehemently

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contend that first of all, this claimant has not traveled in the said bus and no documents are placed before the Court to substantiate the same. Apart from that, the counsel would submit that if he had sustained the injuries and suffered with fracture on account of the accident, he would have gone to the

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hospital nearby to the place of the accident, but he did not do the same immediately after the accident but on the next day, he went to the C.G. hospital at Davanagere and took the treatment as an outpatient. Hence, it is clear that with an intention to make wrongful gain, the claim petition has been filed hence, the compensation awarded by the Tribunal is erroneous. The counsel also would submit that RW1 who is the driver of the bus has been examined and he deposed that this claimant has not traveled in the bus.

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Per contra, the learned counsel for the claimant would contend that the Tribunal has committed an error in taking the income of Rs.6,000/- as notional income and ought to

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have taken the same as Rs.8,000/- since the accident of the year 2013 and the Tribunal also taken only 10% disability when he had suffered two fractures and the compensation awarded on the other heads also very meager. Hence, it requires interference of this Court.

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Having heard the respective counsel for the parties and also on perusal of the material on record, the points that would arise for the consideration are:

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(1) Whether the Tribunal has committed an error in entertaining the claim petition of the claimant?

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(2) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

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(3) What order?

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Point No.1

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It is the contention of the claimant that he had traveled in the bus from Dharmastala and when the bus was turtled, the alleged accident was occurred and he had sustained the injuries and immediately he went in the other bus to Davanagere and on the next day, he went to the hospital and in order to substantiate his contention, he has produced the wound certificate at Ex.P6. On perusal of the wound certificate, it shows that admittedly the claimant was not an inpatient and he took the treatment as out patient at C.G. hospital and it also discloses that that he had sustained injuries due to KSRTC bus accident near Annappa temple, Dharmastala on 11.02.2013 at 4.00 p.m. and also discloses that he went to the hospital on the

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very next day at 3.15 p.m. and X-ray was taken and found

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fracture of lateral candyle of right tibia and also fracture of left colcaneum and the injuries are grievous in nature. In support of his contention, he also produced the FIR and the complaint wherein it is stated with regard to the injuries sustained by him and also specifically mentioned that he has sustained 20 - 30% injuries in the alleged accident and the police have recorded the statement of some of the witnesses and the spot mahazar also conducted. The KSRTC not disputes the accident, but only disputes the fact that this petitioner has not sustained injuries in the accident.

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Having taken note of the material available on record, in the cross-examination of P.W.1, nothing is elicited to disbelieve the case of the claimant. Only a suggestion was made that he had not traveled in the bus and he categorically says that he took the treatment on the next day and on the date of the accident he has not taken any treatment. He also admits that he has not taken any treatment as inpatient. No doubt, KSRTC examined the driver as R.W.1, who deposes that this petitioner had not traveled in the bus, but he also not disputes the fact that the accident had occurred. Except the oral

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evidence of KSRTC that he had not traveled in the bus, no other material is placed on record. On the next day of the accident, he went to Davanagere and took treatment in Government Hospital and he was not an inpatient. Having taken note of the said fact into consideration, in the absence of any contra evidence against the evidence of the claimant, the contention of the KSRTC cannot be accepted. On the very next day, he went to the hospital and he has given the history that he sustained injuries in the KSRTC bus accident. When such being the case, the contention of the KSRTC cannot be accepted. Hence, I answer point No.1 in the negative.

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Point No.2

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Now coming to the aspect of quantum of compensation is concerned, he had sustained fracture of lateral candyle and colcaneum and the same is evident from Ex.P.6. P.W.2 doctor is not the treated doctor at C.G. Hospital and he claims that he gave treatment after the discharge as outpatient. In order to substantiate that he gave treatment, no material is placed before the Court either by the injured or by P.W.2 except the oral evidence. Having taken note of the material on record,

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particularly Ex.P.6 wound certificate, he has suffered two fractures and the doctor has assessed the disability of 30% to the particular limb and 10% to the whole body and hence I do not find any ground to interfere with the finding of accepting the disability of 10%. However, the accident is of the year 2013 and income was taken at Rs.6,000/- per month. Having taken the notional income of Rs.8,000/- per month and applying the relevant multiplier of ‘16’ and taking the disability of 10%, the loss of future income comes to Rs.1,53,600/- (Rs.8,000/- x 12 x 16 x 10%).

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The KSRTC disputed the awarding of Rs.60,000/under the head pain and suffering. Having taken note of the fracture of lateral candyle and also the colcaneum, the Tribunal awarded compensation of Rs.60,000/- and the same is exorbitant and hence it is reduced to Rs.40,000/-.

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The Tribunal committed an error in awarding only an amount of Rs.10,000/- under the head loss of amenities and hence the same is enhanced to Rs.25,000/- .

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The Tribunal awarded an amount of Rs.5,800/- under the head medical expenses and the same is based on

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documentary evidence and hence it does not require interference of this Court.

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The Tribunal awarded an amount of Rs.18,000/under the head loss of income during the laid up period by taking the income of Rs.6,000/- per month and hence the same requires interference. Taking the income of Rs.8,000/- for a period of three months, the loss of income during the laid up period comes to Rs.24,000/- (Rs.8,000/- x 3).

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In all, the claimant is entitled for compensation of Rs.2,48,400/- as against Rs.2,09,000/-.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) Both the appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 16.10.2014 passed in M.V.C.No.704/2013 is modified granting compensation of Rs.2,48,400/- as against Rs.2,09,000/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount within six weeks from today.

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(iv) The claimant is not entitled for interest for the delayed period of 773 days in filing the appeal.

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(v) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

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(vi) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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SN/MD

Sri B M Shivamurthy @ Shivamurthy v. Divisional Controller

Case brief

What is this about?

What did the court decide?

Sri B M Shivamurthy @ Shivamurthy v. Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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