Partly allowed

Sri Shivahuchhaiah v. the Managing Director

Karnataka HC10 Jul 2023MFA/3478/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka examined appeals regarding compensation for a motor accident involving a KSRTC bus and a motorcycle. The Court rejected the bus company's request for additional evidence, dismissed their claim of contributory negligence, and enhanced the compensation awarded to the injured rider.

What did the court decide?

The appeal by the KSRTC was dismissed. The appeal by the petitioner was allowed in part; compensation enhanced by Rs. 33,160/- with interest.

Sri Shivahuchhaiah Vs the Managing Director — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 3478 OF 2020 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 230 OF 2020 (MV-I)

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IN M.F.A. NO. 3478 OF 2020

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BETWEEN:

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SRI SHIVAHUCHHAIAH, S/O LATE MARIHUCHHAIAH, AGED ABOUT 35 YEARS, R/AT HOSURRUDODDI VILLAGE, KYLANCHA HOBLI, RAMANAGARA TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI RAJU S, ADVOCATE)

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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AND:

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THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICE, K.H ROAD, SHANTHINAGAR, BANGALORE-560 027. REP BY DIVISIONAL DIRECTOR KSRTC, RAMANAGARA UNIT, RAMANAGARA 572 159.

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…RESPONDENT

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(BY SRI RAJASHEKAR S, ADVOCATE)

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.06.2019, PASSED IN MVC NO.83/2017, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AND ADDITIONAL MACT RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO 230 OF 2020

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BETWEEN

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THE K.S.R.T.C, CENTRAL HEAD OFFICE, K H ROAD, DOUBLE ROAD, SHANTHINAGAR, BENGALURU-560 027, REP. BY CHIEF LAW OFFICER.

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...APPELLANT

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(BY SRI RAJASHEKAR S, ADVOCATE)

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AND:

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SHIVAHUCHHAIAH, S/O LATE MARIHUCHHAIAH, AGED ABOUT 34 YEARS, R/AT HOSURUDODDI VILLAGE, KYLANCHAL HOBLI, RAMANAGAR TALUK, RAMANAGAR DISTRICT-562 159.

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…RESPONDENT

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(BY SRI S RAJU, ADVOCATE)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.06.2019 PASSED IN MVC NO.83/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AND ADDITIONAL MACT, RAMANAGARA, AWARDING COMPENSATION OF RS.5,57,100/- WITH INTEREST AT 7 PER CENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.3478/2020 preferred by the petitioner and

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MFA No.230/2020 preferred by the respondent-KSRTC are

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directed against the judgment and award in MVC No. 83/2017 passed by the learned Additional Senior Civil Judge and JMFC and Additional MACT, Ramanagara, on 28.06.2019, whereby a sum of Rs.5,57,100/- has been awarded as compensation.

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The petitioner contended that on 31-1-2017 at about 7.45 p.m. when he was going from Channapatna to Bengaluru on his motor cycle bearing No.KA.03.EL.7330 on B.M. Road near KSRTC bus depot, Archakarahalli Village, Ramanagar Town, the driver of KSRTC bus bearing No.KA.18.F.688 so as to go into the KSRTC bus depot, turned the portion of the bus in 'U' turn in a rash and negligent manner and dashed against the motor cycle of the petitioner. As a result, petitioner fell down and suffered open fracture of right Tibia and comminuted distal

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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radius fracture of right wrist. He was shifted to Government Hospital, Ramanagar and later he was shifted to Ramakrishna Hospital, Ramanagara for treatment. He was treated as inpatient and underwent surgery. It was contended that the accident was due to the negligence on the part of the bus driver and that the petitioner used to earn a sum of Rs.30,000/- per month as a private Home Guard and from dairy forming as well as agriculture. He filed a claim petition before the Tribunal claiming compensation.

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On issuance of notice, respondent-KSRTC appeared before the Tribunal and filed the objection statement. It was contended that the negligence was on the part of the rider of the motor cycle and there was no such negligence on the part of the KSRTC bus driver and inter-alia contended that the compensation claimed was highly exorbitant, imaginary and untenable in law.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and the petitioner was examined as PW1 and the Doctor who assessed the

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disability was examined as PW2. Exs.P1 to P11 were marked in the evidence. The driver of KSRTC bus was examined as RW1 and no documents were marked on his behalf.

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After hearing the arguments, the Tribunal came to the conclusion that the petitioner is suffering from disability of 21% and in the absence of evidence regarding the income, adopted the notional income at Rs.9,000/- per month and awarded the compensation of Rs.5,57,100/under the following heads:

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Expenses towards treatment,	Rs. 67,158/-
hospitalization, medicines and miscellaneous expenses
Future loss of future earnings on account of permanent disability	Rs.3,62,880/-
Nourishment and attendant charges	Rs. 10,000/-
Loss of earnings during period of	Rs. 27,000/-
treatment i.e. laid up period
Pain and suffering	Rs. 80,000/-
Loss of amenities and enjoyment of life	Rs. 10,000/-
Total	Rs.5,57,038/-

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Being aggrieved by the said judgment, the petitioner is before this Court in MFA No.3478/2020

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assailing the quantum of the compensation awarded by the Tribunal. It is contended that the income of the petitioner should have been taken at more than Rs.9,000/ per month as he was working as a security guard and home guard. It is also contended that the loss of amenities in life was not considered by the Tribunal and the compensation awarded under the remaining heads was on the lower side.

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The KSRTC is in appeal before this Court in MFA No.230/2020 contending that the petitioner had admitted in the cross- examination that the KSRTC bus was moving at the speed of 20 to 30 kms and he was at the speed of 40 kms. It is contended that the accident in fact occurred as the petitioner had dashed to the rear left side of the bus and therefore, there was no such negligence on the part of the driver of the bus. Apart from that, the quantum of compensation was also assailed on the ground that the disability of 21% was to the right leg. But the Tribunal has

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considered the same to the whole body which is incorrect and not sustainable in law.

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On issuance of notice, the rival parties have appeared through their counsel before this Court and Tribunal records have been secured.

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Heard the learned counsel for the petitioner and learned counsel for KSRTC and perused the records.

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The learned counsel for the petitioner has reiterated the contentions taken up by him in the appeal as stated supra.

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The learned counsel for KSRTC has submitted his arguments on the same line as mentioned in the appeal memo. He has contended that the Tribunal should have atleast considered the contributory negligence on the part of the rider of the motor cycle, but on the contrary, it has fastened the entire negligence and liability on the KSRTC. It is submitted that the quantum of the compensation

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awarded by the Tribunal is on the higher side and the same be reassessed.

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The KSRTC has also filed an application under Order 41 Rule 27 CPC before this Court seeking to produce the copy of the spot sketch prepared by the traffic controller of KSRTC and also the photographs of the bus showing that the damage to the bus was on the rear left side, but not at the front.

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Learned counsel appearing for the petitioner has objected to the said application contending that nothing prevented the KSRTC to produce the said sketch before the Tribunal. Moreover, there is nothing on record to show that the said sketch was prepared at the spot and therefore, it is only cooked up documents which cannot be looked into.

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It is evident that the additional evidence sought to be produced by the respondent-KSRTC is not the public document or the document prepared by the Investigating Officer. Nothing prevented the KSRTC to produce the

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sketch prepared by the Investigating Officer to establish his case. Moreover, the document sought to be produced by the KSRTC could have been very well produced before the Tribunal at the time of recording of the evidence of RW1. The affidavit filed in support of the application filed under order 41 Rule 27 CPC also do not show any valid reasons for non production of the said sketch before the Tribunal. Thus, it is evident that the primary requirement to explain as to why the document could not be produced before the Tribunal are not available in the affidavit. As a consequence, the KSRTC cannot seek the production of the additional evidence as of right and only if the Court requires such additional evidence in order to come to a

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just and proper decision, the Court can invoke the provisions of order 41 Rule 27 CPC. I do not see any reason which require the production of said additional evidence in order to come to a just and proper conclusion which are narrated in the following paragraphs and consequently, IA No. 2/2020 is dismissed.

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10 - NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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A perusal of the police papers produced at Exs.P1, P7 and P8 disclose that, the accident occurred at 7.45 p.m. and the bus driver wanted to take the bus to

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the depot for repair of the lights of the bus. While he was entering into the KSRTC bus depot by taking 'U' turn, the bus had dashed against the motor cycle of the petitioner. A perusal of the chargesheet show that the bus was taking the right turn and had dashed against the motor cycle and as a result, the front portion of the motor cycle was damaged. The police papers do no mention the damages that occurred to the bus. However, the IMV report that is produced at Ex.P3 shows that the front portion of the motor cycle was damaged and the rear left side mudguard of the bus was damaged. This would indicate that while the bus was entering into the depot, the motor cycle of the petitioner had dashed against the rear left side of the bus.

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Though at the first instance it appears that the petitioner had himself dashed against the bus, as argued

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11 - NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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by the learned counsel for KSRTC, in fact, it may be seen that the accident occurred on the high way. Evidently, the bus was taking a right turn from its left lane to enter into the gates of depot. Obviously, the petitioner was coming from the opposite direction on the right lane of the bus. It is also evident that there was a median. Hence, it was the duty of the bus driver to wait for the vehicle which is coming from the opposite direction i.e. on the right side to pass through and thereafter, he should have taken a right turn. The Motor Vehicles Rules, lay down that any driver

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has to give way for the vehicles which are coming from his right side. It is evident that the bus driver did not stop his bus before taking a right turn and he could not judge the

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speed of the motor cycle rider while taking the bus into the depot. As a result, the motor cycle came from the opposite direction in the right lane and then dashed to the rear side of the bus has resulted in the accident. It is evident that there was an error in judgment regarding the

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speed of the vehicle by the bus driver. When we see the act of the petitioner, it is evident that he could not have

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anticipated that bus would take right turn and enter the gates of the depot. Under these circumstances the chargesheet filed by the police against the bus driver is justifiable. I am unable to accept the contention of the learned counsel appearing for the KSRTC that there was contributory negligence on the part of the motor cycle rider also.

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The second contention of the KSRTC is in respect of the quantum of the compensation. The learned counsel for the petitioner has assailed the quantum of the compensation.

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The wound certificate produced at Ex.P2 show that the petitioner has sustained open fracture of right Tibia and comminuted distal radius fracture of right wrist. The discharge summary at Ex.P4 also shows the same and the fracture of tibia was treated with K wiring of distal radius and external fixation. He was inpatient for 07 days. The PW2, who assessed the disability of the petitioner states that there is 10% disability in respect of loss of

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mobility component for right lower limb; 6% disability on account of loss of strength of right lower limb; combined mobility component disability at 15%, another 4% is added on account of the shortening of the legs and disability of 2% added to the right upper limb and he comes to the conclusion that there is 21% gross disability. The PW2 do not mention anything about the whole body disability or the functional disability.

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It is evident that the petitioner claims himself to

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be a private home guard. Obviously, there is nothing on the record in the form of documentary evidence to establish the same. Therefore, it can only be said that petitioner was earning something by working as home guard whenever requirement arises and he was an agriculturist. Therefore, the notional income has to be considered for assessing the compensation. When we juxtapose 21% disability suffered by the petitioner to the limbs and the avocation of the petitioner, it is evident that, the disability cannot be 21% as assessed by the Tribunal.

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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In the considered opinion of this Court, the functional disability of the petitioner comes to 17%.

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The accident has occurred in the year 2017. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.11,000/- for the year 2017. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.11,000/- per month. The petitioner was aged 33 years and therefore, the multiplier of '16' is applicable. Hence, the loss of future income is calculated as Rs.11,000/- x 12 x 16 x 17% = 3,59,040/-.

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As a consequence, the compensation under the

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head of loss of income during the laid up period also to be considered. It can be safely be said that the petitioner was

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unable to resume his work for a period of atleast 4 months. Hence, the petitioner is entitled for a sum of Rs.44,000/- under this head.

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Obviously, the Tribunal has considered the compensation under the head of loss of amenities in life as Rs.10,000/-. Considering the nature of injuries, loss of amenities has to be enhanced to Rs.25,000/-.

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The petitioner was inpatient for a period of 7 days and the Tribunal has awarded a sum of Rs.10,000/under the head of 'nourishment and attendant charges'. It appears that conveyance expenses are not included. Hence, the compensation under the head of nourishment and attendant charges is enhanced to Rs.15,000/- so as to include the conveyance expenses also.

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The compensation awarded under the head of

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'medical expenses', 'pain and sufferings', do not require any enhancement.

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NC: 2023:KHC:24888 MFA No. 3478 of 2020 C/W MFA No. 230 of 2020

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16 -

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Hence, the petitioner is entitled for a total

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compensation of Rs.5,79,198/-

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Expenses towards treatment,	Rs. 67,158/-
hospitalization, medicines and miscellaneous expenses
Future loss of future earnings on account of permanent disability	Rs.3,59,040/-
Nourishment and attendant charges and conveyance	Rs. 15,000/-
Loss of earnings during period of	Rs. 44,000/-
treatment i.e. laid up period
Pain and suffering	Rs. 80,000/-
Loss of amenities and enjoyment of life	Rs. 25,000/-
Total	Rs.5,90,198/-
Less: Awarded by the Tribunal	Rs.5,57,038/-
Enhancement	Rs. 33,160/-

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Thus, the petitioner is entitled for a sum of

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Rs.33,160/- in addition to the compensation awarded by

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the Tribunal with interest. Hence, the following:

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ORDER

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(i) The appeal filed by the petitioner in MFA No.3478/2020 is allowed in part.

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(ii) The appeal filed by the KSRTC in MFA No.230/2020 is dismissed.

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(iii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.33,160/-

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in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization.

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(iv) The KSRTC is liable to deposit the compensation amount together with interest at 6% p.a. from the date of petition till its realization within four weeks before the Tribunal.

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(v) The rest of the order of the Tribunal regarding deposit etc., remain unaltered.

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(vi) The amount in deposit in MFA No.230/2020 shall be transmitted to the Tribunal forthwith.

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The records be sent back to the Tribunal forthwith.

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Sd/JUDGE

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tsn*

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List No.: 1 Sl No.: 100

Sri Shivahuchhaiah v. the Managing Director

Case brief

What is this about?

What did the court decide?

Sri Shivahuchhaiah v. the Managing Director

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

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