The Manager Vs Sri Ramesha

THE MANAGER K.S.R.T.C, RURAL DIVISION, BANNIMANTAP, MYSURU - 570 020. REP. BY ITS MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE, K.H. ROAD SHANTHINAGAR, BANGLORE - 560 027

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…APPELLANT

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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(BY SRI. D. VIJAYAKUMAR, ADVOCATE)

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AND:

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SRI. RAMESHA S/O CHIKKEYELEYAIAH AGED ABOUT 36 YEARS R/AT MALIYURU VILLAGE AND POST BANNURU HOBLI T NARASIPURA TALUK MYSURU DISTRICT - 571 101

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…RESPONDENT

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(BY SRI. SYED ABDUL SABOOR.,ADVOCATE)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THEJUDGMENT AND AWARD DT.20.06.2022 PASSED IN MVC NO.1293/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MACT, MYSURU, AWARDING COMPENSATION OF RS.10,49,170/- WITH INTEREST AT 6 PERCENT P.A. ON RS.63,426/- ONLY FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA NO. 7116/2022

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BETWEEN:

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RAMESHA S/O CHIKKEYLEYAIAH AGED ABOUT 35 YEARS R/A MALIYURU VILLAGE AND POST BANNUR HOBLI, T. NARASIPURA TQ MYSURU DISTRICT - 571 101.

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...APPELLANT

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(BY SRI. SYED ABDUL SABOOR, ADVOCATE)

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AND:

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MANAGER, KSRTC RURAL DIVISION BANNIMANTAP MYSURU - 570 015

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...RESPONDENT

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(BY SRI. D. VIJAYAKUMAR, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.06.2022 PASSED IN MVC NO.1293/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF

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HC-KAR

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COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL COMMON JUDGMENT

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These appeals arise out of judgment and award dated 20.06.2022 passed by the III Additional District Judge and MACT, Mysore, in MVC.No.1293/2019. MFA No.797/2023 is filed by respondent-KSRTC (for short, ‘Corporation’) and MFA No.7116/2022 is filed by claimant. Since, both the appeals arise out of common judgment and award, they are taken up together for disposal.

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Though the matters are slated for hearing on admission, with the consent of both the parties, the matters are taken up for final disposal.

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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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HC-KAR

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The brief facts of the case are that, on

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08.09.2019 around 12.00 noon while the claimant was proceeding on his motorcycle bearing Registration No.KA09-EM-5604 along with a pillion rider by name Yashwanth (MVC.No.1292/2019) at M.M Road, near Basavanahalli, he met with an accident due to rash and negligent driving of the KSRTC bus belonging to respondent-Corporation bearing registration No.KA-09-F-4532. As a result, the claimant sustained grievous injuries. He took treatment as in-patient in Government Hospitals, Bannur and K.R.Hospital, Mysuru. He underwent surgery and has spent substantial amount towards medical expenses. Due to the injuries sustained in the accident, he has suffered permanent disability. With these reasons, the claimant has prayed for awarding of compensation.

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The respondent-Corporation appeared in the claim petition and denied its liability to pay the compensation and it has also contended that accident occurred due to negligence of the claimant and prayed to

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HC-KAR

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dismiss the claim petition. With these reasons, it prayed

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to dismiss 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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In MVC.No.1293/2019

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"1. Whether the petitioner proves that he has sustained injuries in the accident referred in para No.22A of the petition?

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2. Whether the petitioner proves that the accident has occurred due to the negligent driving of the KSRTC bus bearing No.KA09-F-4532?

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3. Whether the respondent proves that the accident has occurred due to the negligence of the petitioner himself?

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4. Whether the petitioner proves his age, occupation and income?

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5. Whether the petitioner is entitled for compensation? If so, what is the amount and from whom?

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6. What order or award?"

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HC-KAR

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The Tribunal clubbed MVC.No.1293/2019 along

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with MVC.No.1292/2019 and recorded common evidence. Claimants to prove their case, examined two witnesses as PW-1 and PW-2 and marked 17 documents as Exs.P-1 to P-17. Respondent-Corporation has examined one witness as RW.1.

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The Tribunal, after hearing both parties, held that the accident occurred due to the contributory negligence of both the claimant and the driver of the bus. In the operative portion of the judgment, the Tribunal observed that the claimant had contributed to an extent of 10% for causing the accident and accordingly deducted that amount from the total compensation awarded. The Tribunal directed the respondent-Corporation to pay 90% of the compensation amount. Upon appreciating the evidence on record, the Tribunal, by the impugned judgment, awarded the following amount of compensation:

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HC-KAR

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Particulars	Amount in Rs.
Pain and Sufferings:	50,000-00
Medical Expenses	31,000-00
Special diet, Attendant Charges, traveling and Miscellaneous expenses	33,000-00
Future medical expenses	10,000-00
Loss of earnings	66,000-00
Loss of future income	9,75,744-00
Total	*11,65,744-00*

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9. Heard the arguments of learned advocates appearing for both the side.

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Learned counsel for the Corporation vehemently

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contends that, the Tribunal while answering issue No.1, should have held that accident occurred due to contributory negligence of rider of the motorcycle to an extent of 25% to 50%. But, in paragraph No.35, of the impugned judgment, the Tribunal has erroneously taken the contributory negligence as 10%. This shows that the Tribunal has not properly applied its mind while passing the impugned order. It is further contended that the

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HC-KAR

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amount of compensation awarded is on the higher side. According to PW.2, the claimant has suffered permanent disability of 33% in respect of a particular limb. But Tribunal erroneously taken it as disability to the whole body while assessing compensation under the head of 'loss of future earning capacity due to permanent disability' . It is also contended that the Tribunal assessed the age of the claimant as 32 years, but, according to the FIR and the complaint, his age was mentioned as 39 years. PW.2, in his evidence, has also stated that the claimant’s age was 39 years. Despite this, the Tribunal has taken the claimant’s age as 32 years and applied a multiplier of ‘16’, which is also incorrect.

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The learned advocate for Corporation further contends that the amount of compensation awarded under other heads also is on the higher side. The claimant has sustained hardly 10% of permanent disability. But the Tribunal erroneously added 40% of his income towards 'future prospects' which is not permissible. In view of the

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HC-KAR

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wrong calculation, the Tribunal has awarded ₹9,75,744/as compensation towards the 'loss of future earning capacity due to permanent disability', the same is highly erroneous. With these reasons, prayed to re-calculate the compensation.

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12. T he learned counsel for the claimant contends that the Tribunal has properly assessed the compensation in respect of 'loss of future earning capacity due to permanent disability'. The Tribunal has awarded smaller amount of compensation on the other heads, which requires enhancement. The Tribunal has properly considered disability on the basis of evidence given by PW2. The disability assessed by PW2 is not to the particular limb, but to the whole body. With these reasons, prayed to enhance the compensation.

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In reply, learned counsel for respondentCorporation submits that the Tribunal has awarded interest on ₹63,426/- and the said finding has not been

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HC-KAR

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challenged by the claimant. Therefore, there is no need to award any interest on the compensation amount to be recalculated by this Court.

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The facts of accident is not disputed. The Tribunal in the impugned judgment, while answering issue No.1, held that accident occurred due to contributory negligence of rider of the motorcycle as well as driver of the bus and apportioned the negligence in the ratio of 25:75. But while calculating the compensation at paragraph No.35, the said contribution was reduced to 10% without any reasons. The said finding is not disputed by the claimant. It is an arithmetical mistake apparent on the face of the record. The Corporation would have filed an application before the said Court for correction of the said mistake or reviewing of the said order. But he has filed an appeal challenging the quantum as well as liability. On reconsideration of the materials, the finding on issue of contributory negligence is just and proper. Hence, does

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HC-KAR

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not call for interference. Therefore, it needs to be

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corrected in the present judgment.

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15. On re-appreciating the evidence available on record, the amount of compensation awarded under some of the heads are on the lower side. As per Ex.P4 - wound

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certificate, the claimant had sustained following injuries :

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i) fracture of the shaft right femur middle third (closed).

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ii) both the bones of right forearm distal third open type II.

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iii) fracture of right medial malleoli open type II chip.

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iv) fracture of distal phalanx of right great toe. v) fracture of base of proximal phalanx of right 3^rd and 4^th toe.

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vi) He took treatment as in-patient for a period of 27 days and u nderwent surgery.

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PW.2 in his evidence has narrated about the

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injuries and restrictions of movement due to fracture of both upper and lower limb. He has assessed a disability to an extent of 33%. It is true that in the affidavit filed by PW.2, it was vaguely mentioned as 33% permanent

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HC-KAR

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disability, without reference to either particular limb or to the whole body. Looking at the injuries sustained by the claimant referred to above, one can understand that it is to the whole body. The said assessment is physical disability and not functional disability.

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Undisputedly, claimant was an agriculturalist. Fracture of both the bones of right arm, fracture of shaft of right femur, certainly affects the efficiency of an agriculturalist. Considering the evidence given by PW.2 and difficulty stated by him to do his work, the total disability affecting his earning capacity is taken as 20% to the whole body.

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In the claim petition, the claimant has mentioned his age as 32 years. Admittedly, he has not produced any document to prove his age, medical records revealed that his age was 29 years. FIR, complaint and charge sheet shows that the age was 37 years. PW2 has stated that the age of PW1 was 37 years. Therefore, there

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HC-KAR

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is no consistency in the age of the claimant. In such circumstances, the age mentioned in the police records cannot be considered as conclusive or reliable. The claimant was injured, and his statement was recorded on the day of incident. Due to pain and suffering, he might not have given correct age. Therefore, the age of the claimant cannot be taken as 37 years, as submitted by the counsel for the Corporation. The medical records indicate that his age was about 29 years. Furthermore, in the claim petition, the claimant himself has declared that he was about 32 years of age. Hence, the self-declared age of 32 years mentioned in the claim petition is accepted as the correct age. The multiplier applicable is 16.

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The claimant contended that he was earning ₹18,000/- per month by working as a coolie and agriculturalist but he was unable to prove the same. Following the notional income chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as ₹14,000/- per month.

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HC-KAR

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The Tribunal has added 40% of his income towards 'future prospects'. The claimant has sustained disability of 33% to the whole body according to calculation of the Tribunal. In such cases, there is no question of adding a future prospects. The said addition is erroneous.

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21. L ooking at the nature of injuries, treatment

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taken, nature of work of the claimant, the amount of compensation awarded under the head 'pain and sufferings'. 'Loss of income during laid up period', 'Future medical expenses' are on the lower side. The Tribunal has not awarded any amount of compensation under the head of 'loss of amenities'. Therefore, the claimant is entitled to

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the compensation under the head 'loss of amenities'.

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For the aforesaid discussions, claimant is

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entitled to the following amount of compensation:

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Particulars	Amount in Rs.
Pain and suffering	75,000/-

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HC-KAR

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Medical expenses	31,000/-
Attendant expenses, special diet and conveyance charges	50,000/-
Loss of income during laid up period	84,000/-
(₹14000/- x 6 months)
Loss of income due to permanent disability	5,37,600/-
(₹14,000 x 12 x 16 x 20%)
Future medical expenses	25,000/-
Loss of amenities	50,000/-
Total	8,52,600/-
Rounded off to	8,53,000/-

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Respondent-Corporation is liable to pay 75% of

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the said amount i.e., ₹6,39,750/- as against ₹10,49,170/awarded by the Tribunal.

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The Tribunal has committed an error in awarding interest on ₹63,426/-. Why interest was awarded only on ₹63,426/- was not explained in the impugned judgment. The learned counsel for the Corporation contends that, since there is no specific ground challenging

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HC-KAR

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this error, the same cannot be rectified. This contention is not acceptable. The appellate court has the power under Order XLI Rule 33 and Order XLI Rule 22 of the Code of Civil Procedure to correct such errors. If there is an apparent error on the face of the record, the claimant or victim cannot be denied the rightful amount of compensation. Therefore, the said contention is rejected. The claimant is entitled to interest on the compensation amount awarded, excluding the sum of ₹25,000/- awarded towards future medical expenses .

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For aforesaid discussions, this Court is passing the following:

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ORDER

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(i) The appeals are partly allowed .

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(ii) The impugned judgment and award dated 20.06.2022 passed in MVC No.1293/2019 by the III Additional District Court and M.A.C.T., Mysuru is modified.

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HC-KAR

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(iii) Claimant is entitled to compensation of ₹6,39,750/- as against ₹10,49,170/- awarded by the Tribunal, along with interest at the rate of 6% per annum from the date of petition till its realization, excluding the amount of ₹25,000/being awarded towards 'future medical expenses'.

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(iv) Respondent is liable to pay the said amount. It is directed to deposit the said amount within a period of 8 weeks from the date of award, if it is already not deposited.

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(v) Whatever amount deposited by the Corporation shall be transferred to the Tribunal for disbursement.

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vi) Draw award accordingly.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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rv

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List No.: 1 Sl No.: 32

The Manager v. Sri Ramesha

Case brief

What is this about?

What did the court decide?

The Manager v. Sri Ramesha

Case brief

What is this about?

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