Mr. Fayaz Khan Vs Karnataka State Road Transport Corporation

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.06.2015 PASSED IN MVC NO.6701/13 ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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2 -

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NC: 2025:KHC:28309 MFA No. 4911 of 2016

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 20^th June 2015, passed by the XVI Addl.Small Causes Judge and M.A.C.T., Bengaluru (SCCH-14) (for short `Tribunal'), in MVC No.6701/2013.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 27.04.2013, claimant was traveling in KSRTC bus bearing registration No.KA-40-F-138 from Malur to his native place Thorlakki. Due to heavy rush, claimant was standing on the footboard of the bus. Around 9.40 p.m., when the bus reached near Doddaaigalur curve, the driver of the bus drove the bus in a rash and negligent manner. As a result, the claimant was thrown out of the bus and sustained grievous injuries. Initially he was taken to Government Hospital, Malur and thereafter, he took treatment as an inpatient in R.L.Jalappa Hospital, Kolar.

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HC-KAR

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He has spent more than Rs.1 lakh towards medical expenses.

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It is the further case of the claimant that he was aged about 21 years and was working as attender in EMDEE Enterprises and earning Rs.6,000/- per month.

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Due to the injuries sustained in the accident, he has suffered permanent disability. With these reasons, prayed to award compensation of Rs.10 lakhs.

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The respondent-Corporation is the owner of the bus. In its written statement, it denied the contentions of the claimant and also denied liability to pay compensation, stating that he had not sustained any injuries in the accident, and prayed for the dismissal of the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues.

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The claimant to prove his case, examined two witnesses as PW-1 and PW-2 and marked 11 documents,

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HC-KAR

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as per Exs.P-1 to P-11. Respondent No.2 has not lead any

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oral or documentary evidence.

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The Tribunal after hearing both parties and appreciating the evidence on record, answered issue No.1 in the negative, by disbelieving the case of the claimant that he had sustained injuries while traveling in the said bus. However, the Tribunal assessed the compensation as Rs.2,59,440/- (learned counsel for the appellant/claimant submits that, as per the calculation, the total amount comes to Rs.3,47,440/-) and in view of answering to issue No.1, it dismissed the claim petition. The same is challenged by the claimant in the present appeal.

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8. I have heard the arguments of learned counsel appearing for both side.

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9. Undisputedly, there is delay of 6 days in lodging the complaint. The reasons for the delay in lodging the complaint is stated in the FIR, as well as in the evidence of PW-1. His statement was recorded by the concerned

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HC-KAR

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police in R.L.Jalappa Hospital. Ex.R-6 shows that claimant was admitted at R.L.Jalappa Hospital, Kolar on 28.04.2013 i.e., early morning of the next day of the accident. The discharge summary shows that it was a Medico-legal case. Therefore, it was the duty of the concerned hospital to intimate to the police station about the accident. Even in Ex.R-6, it is noted that, while travelling in a bus, claimant fell down from the bus and sustained injuries, which is corroborative to the case made out by the claimant.

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10. PW-1 in his evidence has reiterated the petition averments and in his cross-examination, nothing was brought out to disbelieve the same. The respondent thoroughly cross-examined PW-1 and different suggestions were made, including a suggestion that he was travelling in the bus without holding a rod because of his negligence, he fell down from the bus. It is not a city bus and it was a bus going from Kolar to Thorlakki. I t was the duty of the driver/conductor to close the door shutters before starting

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HC-KAR

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the vehicle. It appears that, both the driver and the conductor of the said bus failed to ensure that the door was closed. Therefore, even if we believe the contention of the respondent that the claimant was not holding the door handle of the bus, the fact remains that, had the driver or conductor closed the doors, the claimant would not have fallen from the bus. Hence, the contention of the Corporation that the accident occurred due to the negligence of the claimant is not acceptable.

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11. Learned counsel for the respondent relied on the judgment of Division Bench of this Court in the case of Vijaya Kuruba G. -vs- Karnataka State Road Transport Corporation.¹ The facts of the above said case are different from the present case. In that case, when the bus was stopped at the traffic signal light. The passenger tried to alight from the bus without permission of driver/ conductor. When the traffic signal light indicated to drive the vehicle, the passenger tried to alight and in that

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1 2001 ACJ 1701

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HC-KAR

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process, he fell down. Considering these circumstances, the Division Bench held that the passenger also contributed to the accident in question.

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12. In the present case, the contention of the respondent is not consistent. At one place, it was suggested to PW-1 that he was standing on the footpath without holding any handle and at another breath, it was suggested that he was not at all travelling in the said bus. RW-1 - driver of the bus, was examined and in his evidence, he has completely denied the case of the claimant and even not at all stated about the alleged negligence of the claimant. Under such circumstances, the said contention of the respondent is not tenable.

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13. The Tribunal gave more importance to the overwriting made in the FIR regarding the vehicle number and also noted that claimant fell down from the bus due to rush and observed that no allegations were made against the driver regarding rash and negligent driving of

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HC-KAR

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the bus. The said observation or reasoning of the Tribunal is not tenable.

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14. The claimant in the claim petition, as well as in his evidence has stated that, due to heavy rush, he was forced to stand on the footboard and travel in the bus and when the bus was moving; the driver or conductor of the bus did not close the shutters of the door. The said fact clearly indicates that claimant sustained injuries due to the negligence of driver of the said bus. Hence, he is entitled to claim the compensation.

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15. The Tribunal has assessed the compensation, taking the age of the claimant as 21 years, his income as Rs.7,000/- per month, disability as 12% to the whole body, and applying the multiplier as `18'. The Tribunal did not agree with the contention of the claimant that he was earning Rs.6,000/- per month and assessed the notional income as Rs.7,000/- as the accident occurred during the year 2013.

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HC-KAR

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16. Learned counsel for the respondent-Corporation submits that the said calculation is incorrect, as the income taken by the Tribunal is more than what the claimant has claimed. The said contention is tenable. As such, the income of the claimant is taken as Rs.6,000/per month as contended by him.

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17. On re-assessment of the evidence of PWs.1 and 2, as well as medical records and also re-appreciation of the materials on record, the claimant is entitled to

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following amount of compensation :

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Particulars	Amount in Rs.
Pain and suffering	60,000/-
Medical expenses	41,550/-
Attendant expenses, special diet and conveyance charges	25,000/-
Loss of income during laid up period	24,000/-
(Rs.6,000/- x 4)
Loss of future earning capacity due to permanent disability	1,55,520/-
(Rs.6,000/- x 12 x 18 x 12%)

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HC-KAR

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Loss of amenities and future unhappiness	40,000/-
Loss of marriage prospects	25,000/-
Total	3,71,070/-
Rounded off -	*3,72,000/-*

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The claimant is also entitled to interest at the rate of

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6% p.a. from the date of petition till the date of realisation.

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Respondent-Corporation being the owner of the bus, is liable to pay the amount of compensation.

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For the above said discussions, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 20^th June 2015, passed by the XVI Addl.Small Causes Judge and MACT, Bengaluru (SCCH-14), in MVC No.6701/2013, is set aside.

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iii) The claim petition in MVC.No.6701/2013 is allowed in-part.

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HC-KAR

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iv) The claimant is entitled to compensation of Rs.3,72,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization, excluding the delayed period of 272 days in filing the appeal.

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v) The respondent shall deposit the amount within a period of eight weeks from the date of award.

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vi) Out of the amount of compensation, 50% of the amount shall be deposited in any Nationalised Bank for a period of two years and remaining 50% of the amount shall be released in favour of the claimant on due identification.

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vii) Draw award accordingly.

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Registry is directed to send back the records along

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with a copy of this judgment to the concerned Tribunal.

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Sd/-

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(UMESH M ADIGA) JUDGE

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BK : List No.: 1 Sl No.: 29

Mr. Fayaz Khan v. Karnataka State Road Transport Corporation

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Mr. Fayaz Khan v. Karnataka State Road Transport Corporation

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