Partly allowed

The Ksrtc v. Sri. Venkatesh

Karnataka HC21 Jul 2023MFA/8387/2019

Case brief

AI extract

What is this about?

In an motor vehicle accident appeal, the High Court modified the compensation award by the Tribunal. The Court imputed 15% contributory negligence to the petitioner and revised the 'food, conveyance, and attendant charges' head based on hospital stay duration. The final compensation was fixed at Rs. 6,20,851/-. The appellant (KSRTC) was absent from the hearing.

What did the court decide?

Appeal allowed in part; compensation modified to Rs. 6,20,851/- plus interest; 15% contributory negligence deducted.

The Ksrtc Vs Sri. Venkatesh — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:25465 MFA No. 8387 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST 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. 8387 OF 2019 (MV-I)

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BETWEEN:

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THE K.S.R.T.C, CENTRAL HEAD OFFICE, K.H. ROAD, DOUBLE ROAD, SHANTHINAGAR BENGLAURU 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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SRI VENKATESH, S/O. CHIKKEGOWDA, AGED ABOUT 30 YEARS, R/AT: T.GOLLHALLI VILLAGE, KODIHALLI POST, KANAKAPURA TALUK, RAMANAGARA DISTRICT 562 119.

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

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…RESPONDENT

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(BY SRI V MAHESH, ADVOCATE [ABSENT])

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.06.2019 PASSED IN MVC NO.6890/2017 ON THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGLURU (SCCH4), AWARDING COMPENSATION OF RS.6,49,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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

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NC: 2023:KHC:25465 MFA No. 8387 of 2019

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JUDGMENT

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Heard learned counsel appearing for the appellant. None appears for the respondent.

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Being aggrieved by the judgment and Award in MVC.No.6890/2017 dated 26.06.2019 by learned XVIII Additional Judge, Court of Small Causes and MACT, Bengaluru, the respondent-KSRTC is before this Court in appeal.

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The parties would be referred to as per the rank before the Tribunal for the sake of convenience. The petitioner who was an injured contended that on 03.07.2017 at about 9.30 am, he was proceeding on his motorcycle bearing registration No.KA-42-W-1450 from Bengaluru towards his village near Agara Cross, Kanakapura-Bengaluru. Towards his village and near Agara cross, a KSRTC bus bearing registration No.KA-10-F-0113 came from opposite direction in a high speed and negligent manner and on the extreme right side of the road and dashed against the motorcycle. As a result, the petitioner fell down and sustained grievous injuries and thereafter, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopaedic, Bengaluru, where he took treatment. The

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3 - NC: 2023:KHC:25465 MFA No. 8387 of 2019

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petitioner contended that he had spent Rs.1,50,000/- towards the medical expenses etc., and prior to the accident, he was working as an Auto Rickshaw driver and earning Rs.1,000/- per day. Due to accidental injuries, he has lost his job and as such, he has lost his earning capacity. He contended that the case was registered against the bus driver in Crime No.306/2017 and therefore, the respondent be directed to compensate the petitioner adequately.

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On issuance of notice, the respondent-KSRTC appeared through its counsel and filed objections contending that there was no such negligence on the part of the bus driver but the accident happened due to negligence on the part of petitioner himself. It is contended that the petitioner has drive to over take the car and abruptly came on the extreme left side of the road. It is contended that the driver of the bus driver has stopped the bus and it was the petitioner who had lost control over the motorcycle and dashed against the KSRTC bus. The respondent also contended that the compensation claimed is highly exorbitant, imaginary and untenable and therefore, the petition be dismissed.

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NC: 2023:KHC:25465 MFA No. 8387 of 2019

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5. On the basis of the above pleadings, the Tribunal

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framed appropriate issues and the petitioner was examined as PW1 and the Doctor was examined as PW.2. Ex.P1 to Ex.P25

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were marked. The driver of the respondent was examined as RW.1 and no documents were marked on his behalf.

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After hearing the arguments by both the sides, the

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Tribunal proceeded to award a compensation of Rs.6,48,573/to the petitioner fastening the entire liability on the respondent-

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KSRTC under various heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Pain and sufferings	50,000/-
Medical expenses	50,173/-
Loss of income during the period of treatment	40,000/-
Disability	4,28,400/-
Towards food, conveyance, nourishment and attendant charges	15,000/-
Loss of future amenities and happiness	30,000/-
Future medical expenses	15,000/-
Vehicle damages	20,000/-
TOTAL	6,48,573/-

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Being the aggrieved by the said judgment and

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award, respondent-KSRTC has approached this Court in appeal.

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NC: 2023:KHC:25465 MFA No. 8387 of 2019

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On issuance of notice, the respondent/appellant appeared through its counsel. The Tribunal records have been secured. When the matter was posted for final hearing, despite granting two opportunities, the counsel for respondent/appellant has not appeared before this Court. Hence, the arguments of the learned counsel for appellant was heard.

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Learned counsel appearing for the appellant submits that the Tribunal erred in holding that the entire negligence has to be attributed to the bus driver. It is contended that the charge sheet was filed against the petitioner also and therefore, the negligence on the part of the petitioner was not properly assessed by the Tribunal. His second contention is that the Tribunal had erred in holding that the petitioner is entitled for compensation for the vehicle damages also. It is contended that the petitioner has admitted in his cross-examination that he had made a claim petition before the insurer of his two wheeler and therefore, he was not entitled for the compensation under the head of 'loss of damages' to the vehicle unless it is established that he had not received any compensation amount from his insurer. Therefore, he has

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6 - NC: 2023:KHC:25465 MFA No. 8387 of 2019

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sought for reassessment of the compensation awarded by the Tribunal and also to consider the contributory negligence on the part of the petitioner.

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A perusal of the cross-examination of PW.1 discloses that it was suggested to him that about 150 meters in front of the petitioner, a Maruthi Swift car was moving and such suggestion was admitted by him. However, he denied that he had tried to overtake the said Maruthi Car and he could not control the vehicle and as such, he dashed against the bus. This suggestion has been denied by him. The crossexamination of RW.1 who happens to be the bus driver discloses that in the cross-examination he has denied that the accident was due to his own negligence. It is worth to note that the evidence of RW.1 do not explain the spot mahazar which is produced at Ex.P4. Ex.P4 shows that the accident had happened at a distance of about 6 feet from the centre line and the spot of the accident is obviously on the right side for the bus driver who was coming from Kanakapura to Bengaluru. Therefore, the evidence of RW.1, the driver of the bus is not in consonance with the spot mahazar and the charge sheet which is filed by the Police after investigation. The evidence of the

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RW.1 do not explain as to why the spot of the accident is on right side for him. On the other hand, the evidence of PW.1 coupled with the Police papers shows that the accident had happened at a distance of 8 feet from the left edge of the road for the petitioner and it was obviously about 6 feet from the centre line of the road. Thus, it is evident that the bus driver had come on wrong lane to the extent of 6 feet. There was no reason for the bus driver to cross the centre line and come on the right lane to the extent of 6 feet. It clearly establishes that the negligence on the part of the bus driver was on the higher side than that of the petitioner. The petitioner had about 8 feet on his left side and therefore, there was negligence on his part also. These aspects were not considered by the Tribunal and it came to the conclusion that the accident occurred due to the sole negligence of the bus driver. In a considered opinion of this Court, the contributory negligence of the petitioner would be to the extent of 15% and that of the driver of the bus is 85%.

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The next contention of the learned counsel appearing for the appellant is that the Tribunal erred in awarding the compensation of Rs.20,000/- towards the vehicle

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damages. In the cross-examination of PW.1, it is elicited that the petitioner had made a claim to his insurer about the damages. When he has admitted that a claim was made to his insurer, he should have placed the adequate material as to whether he had received the compensation for the damages from his insurer or not. Such details are not available on record. Under these circumstances, it is contended that it was not proper on the part of the Tribunal to hold that the petitioner is entitled for a sum of Rs.20,000/- under the head of vehicle damages. In fact, the petitioner had not produced the survey report of the damages but had only produced certain bills.

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It is also relevant to note that the perusal of the Ex.P15 discloses that the total bill is to the extent of Rs.27,392/- and Rs.16,580/-. The Tribunal has held that the depreciation and the salvage has not been considered and therefore, it has reduced the total compensation under the head of 'vehicle damages' at Rs.20,000/-. It is also relevant to note that PW.4 has been examined and he states that Ex.P15 was issued by the service centre for the repairs to the two wheeler. In the cross-examination it has been elicited that the salvage was taken over by the service centre. The cross-

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examination do not disclose that the appellant-KSRTC had disputed the receipt of the of the money under Ex.P15 by PW.4 and there was no suggestion to the effect that the amount under Ex.P15 was received from the insurer of the petitioner. Obviously Ex.P15 is the original bill cum receipt. Therefore, no fault can be found in respect of the finding of the Tribunal that the petitioner is entitled for compensation of Rs.20,000/-.

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In view of the above conclusions, the compensation has to be reassessed by this Court. The petitioner had sustained fracture of the femur shaft on the right side, fracture of both the bones of right leg and fracture of 3^rd , 4^th and 5^th metacarpal on the right hand and the discharge summaries produced at Exs.P6 to P9 show that he was inpatient for a total period of 77 days on four spells. Coupled with this, the other medical records show that the fractures had to be treated with external fixators and it has obviously resulted in inpatient treatment spread over 77 days. Hence, the compensation under the head of 'food, nourishment, conveyance and attendant charges assessed by the Tribunal at Rs.15,000/- has to be reassessed and in the considered opinion of this Court, it

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would be proper to award a sum of Rs.50,000/- under this head.

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The compensation awarded by the Tribunal under the head of 'pain and suffering' and the 'medical expenses' to extent of Rs.50,000/- and Rs.50,173/- are adequate and no interference is called for.

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The Tribunal has considered the notional income of Rs.10,000/- since the petitioner had not produced any cogent evidence regarding his income. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat prescribed a notional income of Rs.11,000/- for the year 2017. In umpteen number of decisions, it has been held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act and therefore, the notional income of the deceased is considered at Rs.11,000/- per month. The Tribunal has taken the disability of the petitioner at 21% in pursuance to the evidence of PW.2, the same is proper and correct. Therefore, the 'loss of future income on account of disability' is calculated as Rs.11,000/- X 12 X 21% X 17 = Rs.4,71,240/- by adopting multiplier of '17'. As of consequence, 'loss of income

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NC: 2023:KHC:25465 MFA No. 8387 of 2019

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during the laid up period' is calculated as Rs.11,000/- X 4 = Rs.44,000/-.

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The compensation awarded by the Tribunal under the head of 'loss of amenities' and 'future medical expenses' do not call for any interference.

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Thus, the petitioner is entitled for the modified

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compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Pain and sufferings	50,000/-
Medical expenses	50,173/-
Loss of income during the laid up period	44,000/-
Loss of future income on account of disability	4,71,240/-
Towards food, conveyance, nourishment and attendant charges	50,000/-
Loss of amenities	30,000/-
Future medical expenses	15,000/-
Vehicle damages	20,000/-
TOTAL	7,30,413/-
Less 15% contributory negligence on the part of the petitioner	1,09,562/-
Total entitled by the petitioner	6,20,851/-

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Thus, the petitioner is entitled for a compensation

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of Rs.7,30,413/- instead of Rs.6,48,573/- awarded by the Tribunal. Out of which, if 15% (Rs.1,09,562/-) is deducted

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towards contributory negligence on the part of the petitioner, his total entitlement would be Rs.6,20,851/- with interest and therefore, the appeal deserves to be allowed in part. 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 impugned judgment and award passed by the Tribunal is modified by fixing 15% contributory negligence on the part of the petitioner and by awarding a sum of Rs.6,20,851/- as stated in para 17 of judgment, together with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The appellant/KSRTC is directed to deposit the compensation amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal stands unaltered.

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Sd/JUDGE

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NR/-

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List No.: 1 Sl No.: 69

The Ksrtc v. Sri. Venkatesh

Case brief

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The Ksrtc v. Sri. Venkatesh

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