The Divisional Controller Vs Shri.Suresh Shankar Bekkeri

THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 27.08.2015 PASSED IN MVC NO.720/2013 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, RAIBAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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HC-KAR

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IN MFA NO. 100247 OF 2016

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BETWEEN:

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THE DIVISIONAL CONTROLLER NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION, N.W.K.R.T.C. CHIKODI DIVISION, DIST. BELAGAVI (REP/BY CHIEF LAW OFFICER).

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…APPELLANT

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(BY SRIYUTHS. M.B. KANAVI AND NEHAL B. PATIL, ADVS, ADV)

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AND:

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SHRI. SURESH SHANKAR BEKKERI, AGE: 20 YEARS, OCC: COOLIE, NOW NIL, R/O: RAIBAG GRAMEEN HALLAD HARI TOTA, RAIBAG, TALUK: RAIBAG.

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…RESPONDENT

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(BY SRI. SHIVARAJ S. BALLOLI, ADV)

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST JUDGMENT AND AWARD DTD:27.08.2015, PASSED IN MVC NO.720/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, RAIBAG, AWARDING TOTAL COMPENSATION OF RS.3,72,448/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF THE PETITION TILL THE FINAL REALISATION, FROM RESPONDENT.

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THESE APPEALS, COMING ON FOR ADMISSION AND FINAL HEARING RESPECTIVELY, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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The petitioner, being dissatisfied with the

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quantum of compensation amount awarded by the Tribunal in MVC No.720/2013, filed an appeal in MFA No.102801/2016 for enhancement. The NWKRTC, also the aggrieved by the liability, filed an appeal in MFA No.100247/2016.

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Brief facts, leading rise to the filing of this appeal are as follows:

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On 10.4.2012 at about 6 p.m, the petitioner was proceeding on a Hero Honda CD Deluxe motorcycle bearing registration No.KA-22/EF-5511 as a pillion rider towards his house at Bhiradi along with his friend. The driver of the bus bearing No.K23/F-456 came from Raibag in a rash and negligent manner, and dashed to the motorcycle. As a result, the petitioner sustained injuries. The petitioner has spent a huge amount towards medical expenses, and the other expenses. Hence, he filed a claim

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HC-KAR

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petition under Section 166 of the M.V.Act claiming compensation on account of the injuries sustained by him in a road traffic accident.

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The NWKRTC filed a statement of objections denying the averments made in the claim petition. It is contended that the rider of the motorcycle did not possess a valid and effective driving license as of the date of the accident. It is contended that the bus is fitted with a speed limit, as such, it cannot go at high speed as alleged by the petitioner. Accordingly, prays to dismiss the claim petition.

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The rider also filed a claim petition in MVC No.2612/2013. Both claim petitions were clubbed together, and a separate issues were framed by the Tribunal based on the pleadings of the parties.

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The petitioner in MVC No.720/2013 examined himself PW-1 and the petitioner in MVC No.2612/2013 was examined as PW-2, the Doctor was examined as PW-3,

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HC-KAR

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and 32 documents were marked as Ex.P1 to P32.

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Conversely, the respondent -NWKRTC examined one witness as RW-1 and no documents were marked. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with cost vide judgment dated 27.08.2015 and awarded a compensation of Rs.3,72,448/- with interest at the rate 6% per annum, and directed the NWKRTC to deposit the amount. The NWKRTC, aggrieved by the Judgment and award passed by the Tribunal, preferred an appeal in MFA No.100247/2016 and the petitioner, being dissatisfied with the quantum of compensation awarded by the Tribunal, filed an appeal in MFA 102801/2016 seeking an enhancement of the compensation.

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Heard the learned counsel for the petitioner, and the NWKRTC.

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Learned counsel for the petitioner submits that the permanent disability assessed by the Tribunal is on the lower side. He submits that the compensation awarded by

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HC-KAR

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the Tribunal is meagre. He also submits that a chargesheet has been filed against the driver of the bus. Therefore, the Tribunal was justified in fastening liability on the NWKRTC. Hence, on these grounds, he prays to allow the appeal filed by the petitioner, and dismiss the appeal filed by the NWKRTC.

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Per contra , the learned counsel for the NWKRTC submits that the accident occurred due to a rash and negligent riding by the rider of the motorcycle and there was no negligence on the part of the driver of the bus. He submits that the Tribunal committed an error in fastening the liability on the NWKRTC. He also submits that the compensation awarded by the Tribunal is just and proper, and do not call for any interference. Hence, on there grounds, he prays to dismiss the appeal filed by the petitioner, and allow appeal filed by NWKRTC.

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Perused the records, and considered the submission of the learned counsel for the parties.

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HC-KAR

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The points that would arise for consideration,

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are regarding the liability and the quantum .

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Regarding Liability

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There is no dispute that the petitioner, and his friend have suffered injuries due to a road traffic accident and the accident took place on 10.04.2012. They sustained injuries in the road traffic accident and to prove negligence on the part of the driver of the bus, the petitioner produced a chargesheet marked as Ex.P7, which discloses that the chargesheet was filed against the driver of the offending bus. Thus, the Tribunal was justified in recording its findings that the accident occurred due to a rash and negligent driving by the driver of the offending bus.

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Regarding quantum

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Insofar as the quantum is concerned, the petitioner has contended that he was doing the agricultural coolie work and used to earns Rs.20,000/- per month and

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HC-KAR

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he was maintaining his family. Due to the injuries sustained in the road traffic accident, he is unable to do day-to-day work. To substantiate the income, the petitioner has not produced any income proof. In the absence of income proof, the notional income has to be taken as per the chart issued by the Karnataka State Legal Services Authority (KSLSA). The accident occurred in 2012. Thus, the notional income has to be taken at Rs.6,500/- per month. The petitioner was aged 20 years old as of the date of the accident, and 40% future prospects is to be added to the notional income in view of the proposition of law laid down by the Hon’ble Apex court in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors, reported in (2017)16 SCC 68 (i.e. 6,500 + 2,600 = 9,100). This Court reassesses the monthly income at Rs.9,100/-and the relevant multiplier applicable to his age group is ‘18’. The petitioner, to prove the disability, examined the Doctor as PW-2. He opined that the petitioner is permanently physically disabled to an

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HC-KAR

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extent of 25% regarding the right upper limb, and 25% due to fracture of left acetabulum bone of the left hip joint regarding the left lower limb as per the ALMCOI Book.

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From the perusal of the entire evidence of PW-2, the Doctor has not opined as to what is the percentage of disability to the whole body. However, the Tribunal took the disability at 20%, which is just and proper. Considering the evidence of PW-2, and the medical records, this Court reassess the compensation under the following heads:

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Sl.		Compensation a	warded in Rs.
No.	Heads of compensation	By the Tribunal	By this Court
1	Pain and suffering	40,000/-	60,000/-
2	Medical expenses	62,248/-	62,248/-
3	Conveyance, Attendant, Nourishment and etc.,	5,000/-	10,000/-
4	Loss of earning during treatment	6,000/-	18,200/- (9,100x2)
5	Loss of future earnings	2,59,200/-	3,93,120/- (Rs.9,100/- x 12 x‘18’x 20%)
6	Loss of amenities		25,000/-
	Total :	3,72,448/-	5,68,568/-
	Compensation	enhanced by:	1,96,120/-