Kishansingh vs Divisional Controller, N.E.K.R.T.C., Gulbarga

B. Manohar, J. - Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 30-12-2010 passed in MVC No. 1230/2009 by the II Addl. Civil Judge (Sr. Dn.) and MACT at Gulbarga (hereinafter referred to as `the Tribunal'' for short) has filed this appeal, seeking for enhancement of compensation.

The appellant herein filed a claim petition before the Tribunal contending that on 18-12-2008 at about 9.00 a.m., while he was proceeding on a motorcycle bearing Reg. No. KA-32/R-8913 along with one pillion rider to Diksha Math Temple from Yadgiri, near Bendelli Tank on Sedam to Yadgir road, a KSRTC bus bearing Reg. No. KA-32/F-809 driven by its driver in a rash and negligent manner, dashed against the motorcycle. Due to the said impact, the driver of the motor cycle sustained injuries to his lace, head, left mid shaft of femur, right tibia and other parts of the body. Immediately after the accident, he was shifted to Government Hospital, Yadgir, Thereafter, he took treatment at Dhanvantri Hospital, Gulbarga. He contended that he had spent huge money for treatment. Hence, sought for compensation of Rs. 19,70.000/-.

The respondent-NEKRTC filed the objections and denied the negligence on the part of driver of the bus and contended that there was head on collision between the KSRTC bus and the motorcycle. There is contributory negligence on the part of the rider of the motorcycle. Hence, sought for dismissal of the claim petition.

The Tribunal after appreciating the oral and documentary evidence let in by the parties, held that there is no contributory negligence on the part of the rider of the motorcycle. The spot mahazar and spot sketch clearly disclose that due to the rash and negligent driving of the bus, the accident had occurred. With regard to quantum of compensation is concerned, in the road traffic accident, the claimant has sustained fracture of proximal shaft of right ulna, fracture of mid shaft of left femur and the fracture of right zygomatic arch. The doctor who treated the claimant has assessed the disability to an extent of 55% to 60% to the whole body. The Tribunal has considered ⅓rd of the said disability i.e., to an extent of 20%. Further, the General Surgeon who treated the claimant has assessed the disability to an extent of 32% to the whole body. The Tribunal has considered ⅓rd of the said disability i.e., to an extent of 10.66%. In all, the Tribunal has considered the disability to an extent of 30.66% to the whole body. Though the claimant claimed that he was earning Rs. 20,000/- per month, no document was produced to substantiate the same. Therefore, the tribunal considering the income of the claimant at Rs. 4,000/- p.m., considering the disability to an extent of 30.66% and applying the multiplier of 16 has awarded a sum of Rs. 2,35,468/- towards loss of future income, Rs. 1,31,940/- towards medical expenses, Rs. 40,000/- towards pain and suffering, Rs. 16,000/- towards loss of income during laid up period, Rs. 15,000/- towards diet, nourishment and attendant charges, Rs. 25,000/- towards loss of amenities and Rs. 50,000/- towards future medical expenses. In all, the Tribunal has awarded the compensation of Rs. 5,13,408/- which was rounded off to Rs. 5,13,000/- with interest at 6% p.a. Being not satisfied with the said compensation, the claimant has filed this appeal.

It is relevant to mention here that the Divisional Controller, NEKRTC has filed MFA No. 31193/2011 challenging the very same judgment and award insofar as it relates to the contributory negligence. This Court, after examining the matter in detail found that there is no negligence on the part of the rider of the motorcycle and dismissed the said appeal on 13-8-2013. The only dispute in this appeal is with regard to the quantum of compensation.

In the accident the claimant has sustained fracture of proximal shaft of right ulna, fracture of mid shaft of left femur and fracture of right zygomatic arch. The doctor who treated the claimant is an orthopedic Surgeon and has assessed the disability to an extent of 55% to 60% and a General Physician has assessed the disability at 32%. The Tribunal taking into consideration the disability to an extent of 30.66% and considering the income at Rs. 4,000/- p.m. has awarded the compensation. The income of Rs. 5,000/- p.m. taken by the Tribunal is on the lower side. The appellant is owning more than 11 acres 34 guntas of land situated at Raddewadagi, Taluka Jewargi. Apart from that, he was running a Hotel. Even though the appellant has not produced any document in that regard, it could be seen from the records that he has to maintain the big family. The Tribunal ought to have taken the income as Rs. 5,000/- p.m. and awarded the compensation. The compensation awarded on all other heads except loss of future income substantially is a just and fair compensation. Hence, taking into consideration the income of the appellant at Rs. 5,000/- p.m., considering the disability to an extent of 30.66% and applying the multiplier of 16, the appellant is entitled to a sum of Rs. 2,94,336/- towards loss of future income as against Rs. 2,35,468/- awarded by the Tribunal. Thereby, the appellant is entitled to the enhanced sum of Rs. 58,868/- towards loss of future income.

Accordingly, I pass the following :

The appeal is allowed in part. The judgment and award dated 30-12-2010 passed in MVC No. 1230/2009 by the II Addl. Civil Judge (Sr. Dn.) and MACT at Gulbarga is modified. The appellant is entitled to enhanced compensation of Rs. 58,868/- with interest at 6% p.a.