Nitin @ Mitun Vs the Divisional Controller

THE DIVISIONAL CONTROLLER, KSRTC, DIVISIONAL OFFICE, VIJAYAPURA DIVISION, VIJAYAPURA. (NOW REPRESENTED BY CHIEF LAW OFFICER, CENTRAL OFFICE, KALABURAGI)

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…APPELLANT

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

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AND:

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NITIN @ MITUN S/O GOPAL CHAVAN, AGE: 17 YEARS, OCC: STUDENT, SINCE MINOR R/BY HIS MOTHER ANITA W/O GOPAL CHAVAN, AGE: 37 YEARS, OCC: H.H. WORK,

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HC-KAR

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R/O: SOMADEVAR HATTI, L.T. NO.1, VIJAYAPURA – 586 101.

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…RESPONDENT

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(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICHLES ACT, 1988 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED:03.02.2022 IN MVC.NO.553/2019 PASSED BY THE IVTH ADDL. SENIOR CIVIL JUDGE AND M.A.C.T - XV, VIJAYAPURA, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MISCL. FIRST APPEAL NO.202750/2023

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BETWEEN:

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NITIN @ MITUN S/O GOPAL CHAVAN, AGE:18 YEARS, OCC: STUDENT, R/O: SOMADEVAR HATTI L.T.NO.1, TQ & DIST: VIJAYAPURA – 586 104.

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…APPELLANT

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(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER, DIVISIONAL OFFICE N.E.K.R.T.C., VIJAYAPURA DIVISION ATHANI ROAD, VIJAYAPURA – 586 101.

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…RESPONDENT

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICHLES ACT, 1988

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HC-KAR

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PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED:03.02.2022 PASSED IN MVC.NO.553/2019 ON THE FILE OF THE COURT OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XV, VIJAYAPURA AT VIJAYAPURA AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.44,17,500/ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON’BLE COURT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND HON'BLE MRS. JUSTICE K S HEMALEKHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

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These appeals are taken up for final disposal with the consent of both the learned counsels.

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Both the appeals arise out of the judgment and award dated 03.02.2022 passed by the IV Additional Senior Civil Judge and Member, MACT - XV, Vijayapura, in MVC.No.553/2019.

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HC-KAR

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Heard both sides and perused the material on

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record.

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Brief facts:

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On 06.10.2018, at about 3.00 p.m., on TikotaJath road near Somadevara Hatti, when deceased Gopal Chavan was proceeding on his motorcycle No.KA-37/U9643 along with his minor son – Nitin, a KSRTC bus No.KA-28/F-1967 came from opposite side and hit against the motorcycle. Due to the said accident, both the rider

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and pillion rider sustained grievous injuries and Gopal Chavan, the rider of the motorcycle succumbed to injuries on 07.10.2018, while undergoing treatment in the hospital.

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MVC.No.553/2019 was filed by the injured –

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Nitin claiming compensation of Rs.54,25,000/-, for the injuries sustained by him. The Tribunal vide judgment and award noted supra, awarded a total compensation of Rs.10,07,500/- with interest at 6% per annum from the date of the order till realization.

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HC-KAR

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The learned counsel appearing for the appellant/Corporation in MFA.No.202466/2022 would

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contend that, the accident was on account of the rider of the motorcycle and therefore, the Tribunal was not proper

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in holding that the driver of the KSRTC bus has contributed in the accident to the extent of 50%. She contended that the Tribunal having noticed, B-charge sheet was filed against the driver of the bus, ought not to have fixed the liability to pay the compensation on the appellant.

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The learned counsel would further contend that

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the injured has not spent a sum of Rs.9,82,500/- towards medical expenses as claimed by him, on the other hand, as per the letter issued by Vasudev Hospitals and IP final bill dated 19.04.2022 in respect of medical expenses incurred, only a sum of Rs.2,77,931/- was spent by him. She has therefore contended that, the Tribunal without properly considering the said medical bills has awarded higher compensation.

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HC-KAR

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The learned counsel has filed I.A.No.2/2025 in MFA.No.202466/2022 for production of additional documents i.e., the letter dated 19.04.2022 of Vasudev Hospitals along with IP final bill and the letter dated 19.04.2022 issued by the Divisional Security Officer, KKRTC, Vijayapura Division, addressed to the Divisional Controller (Law), KKRTC, Vijayapura Division, Vijayapura.

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Per contra, the learned counsel appearing for the claimant, namely the appellant in

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MFA.No.202750/2023 would contend that, due to the accidental injuries, the claimant / injured has suffered

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permanent physical disability which has affected his earning capacity. The Tribunal after considering the discharge card, medical bills etc., has rightly come to the conclusion that he is entitled for a sum of Rs.9,82,500/towards medical bills. He further contended that a global compensation of Rs.10,07,500/- awarded by the Tribunal is not commensurate with the injuries sustained by the claimant, since the Tribunal has not taken into

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HC-KAR

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consideration the permanent physical disability suffered by him, which has affected his earning capacity. He contended, the Tribunal failed to appreciate that the appellant sustained head injury with Diffuse Axonal Injury - Grade 4 with Blunt Trauma Chest and therefore, failed to award any compensation under the heads - loss of earning capacity, pain and sufferings etc.

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The learned counsel appearing for the claimant has filed I.A.No.1/2025 in MFA.No.202750/2023 seeking a direction for assessment of disability suffered by the injured, by conducting his examination by the medical board, GIMS Hospital, Kalaburagi.

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The learned counsel appearing for the KSRTC has vehemently opposed the prayer of the claimant, contending that at this stage such a prayer cannot be entertained.

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According to the learned counsel for the Corporation, the rider of the motorcycle was wholly

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HC-KAR

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responsible for the accident in question and therefore, the Tribunal was not proper in fixing the liability on the Corporation to the extent of 50%. It is relevant to mention here that, challenging the quantum of compensation and the liability fixed, the claimants in MVC.No.243/2019 preferred an appeal before this Court in MFA.No.204168/2023 and the KSRTC also filed an appeal in MFA.No.202467/2022. This Court by a common judgment dated 12.03.2025 disposed of both the appeals, wherein the liability was fixed to the extent of 70% on the driver of the KSRTC bus and 30% on the rider of the motorcycle.

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Be that as it may, the claimant in the present case was a pillion rider in the motorcycle, therefore, the contention of the learned counsel for the Corporation that accident was not due to the fault of the driver of the bus and the liability fixed on the Corporation was not proper, etc., cannot be accepted. The Tribunal, relying on a judgment of the Hon’ble Apex Court in

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HC-KAR

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Khenyei vs. New India Assurance Co. Ltd., and

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others reported in (2015) 3 ACJ 1441, wherein it is held that in a case of composite negligence, claimant is entitled to sue both or any one of the joint tort feasors, rightly

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held that, he can at his option, recover whole damages from any of them.

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According to the learned counsel for the injured/claimant, due to the accidental injuries, the injured suffered permanent physical disability which has affected his earning capacity. However, no doctor was examined to show that the injured has suffered permanent disability.

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Similarly, it is the contention of the learned counsel appearing for the Corporation that the injured has not spent Rs.9,82,500/- towards medical expenses. We find that the additional documents now sought to be produced by the Corporation, were not produced before the Tribunal.

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HC-KAR

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In view of the above, we deem it appropriate

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that a reasonable opportunity may be given to both the parties to adduce additional evidence in respect of their claims and therefore, we are of the view that it is a fit case

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where the matter has to be remanded to the Tribunal for fresh consideration.

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Accordingly, we pass the following:

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ORDER

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i. The judgment and award dated 03.02.2022 passed by the IV Additional Senior Civil Judge and Member, MACT - XV, Vijayapura, in MVC No.553/2019 is set aside.

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ii. Both the parties shall appear before the Tribunal on 18.07.2025, without further notice.

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iii. The Tribunal shall permit both the parties to lead additional evidence and pass appropriate order in accordance with law.

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iv. The amount deposited by the Corporation before this Court shall be remitted back to the Tribunal.

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HC-KAR

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v. The amount if any, deposited by the Corporation before the Tribunal shall be kept in a fixed deposit in any Nationalized bank and shall be subject to the order passed by the Tribunal.

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vi. The trial Court records and the additional documents furnished along with the applications filed in both the appeals shall be transmitted to the Tribunal, for necessary consideration.

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vii. The claimant/appellant shall not be entitle to interest for the delayed period of 387 days in preferring the appeal.

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All contentions are kept open. The interlocutory applications filed in both the appeals stand disposed of.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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Sd/-

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(K S HEMALEKHA) JUDGE

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MCR, TMP List No.: 1 Sl No.: 12

Nitin @ Mitun v. the Divisional Controller

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Nitin @ Mitun v. the Divisional Controller

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