North West Karnataka Road Transport Corpn. vs Manohar

P.D. Waingankar, J.—Both these appeals are directed against the judgment and award dated 16.06.2009 passed in MVC No. 1574/2008 on the file of the II Addl. Civil Judge (Sr. Dn.) and Addl. MACT, Belgaum.

On 07.01.2008, while the injured-claimant was travelling in a bus bearing No. KA-22/F-1053, on account of rash and negligent driving of the driver of the bus, he fell down from the bus and sustained grievous injuries, for which he was treated for prolonged period of time in the District Hospital, Belgaum. He spent substantial amount for his treatment. He lost his income during the period of treatment. Despite the best treatment, he has suffered disability. He filed the claim petition under Section 166 of the Motor Vehicles Act in MVC No. 1574/2008 claiming compensation of Rs. 10,00,000/-. The claim petition was opposed by the KSRTC mainly on the ground that the claimant himself was responsible for the accident as he made an attempt to get down from moving bus. It came up for consideration before the Tribunal. The Tribunal upon hearing the submissions of both the learned Counsel appearing for the parties and going through the evidence, by the judgment and award dated 16.06.2009 recorded a finding that the accident was due to the negligence of driver of the bus and awarded a total compensation of Rs. 2,70,400/- to the injured/claimant with 6% interest thereon, from the respondents-owner and insurer of the bus involved in the accident.

Aggrieved by the quantum of compensation awarded by the Tribunal, the claimant preferred MFA No. 22359/2009, whereas the respondent-KSRTC preferred MFA No. 23876/2009 against the quantum of compensation and also the negligence attributed to the driver of the KSRTC bus.

I have heard both the learned Counsel appearing for the appellant/claimant and the respondent-KSRTC.

Upon hearing both the learned Counsel and going through the entire material on record, the following points would arise for my consideration:

i. Whether the Tribunal is justified in holding that the accident occurred purely due to the negligence of the driver of the KSRTC bus?

ii. Whether the compensation awarded by the Tribunal is just and proper?

Point No. 1: It is the case of the respondent-KSRTC that the accident occurred purely on account of the negligence of the claimant himself, as he made an attempt to get down from the bus while the bus was in motion; whereas it is the case of the claimant that the accident occurred purely due to the rash and negligent driving of the driver of the KSRTC bus. In order to establish the negligence on the part of the driver of the KSRTC bus, the claimant himself got examined as PW 1, apart from production of necessary documents such as Ex. P1-FIR, Ex. P2-complaint, Ex. P3-Spot panchanama, Ex. P-1-MVI Report, Ex. P7-Charge sheet. As against the evidence placed on record by the claimant, the respondent-KSRTC examined the driver of the bus-Ishwar Gadigeppa Ulligeri as RW 1.

It is borne out from the charge sheet that the police after investigation have come to the conclusion that the accident occurred purely due to the negligence of the driver of the KSRTC bus, which resulted in filing of the charge sheet against the driver of the KSRTC bus. The Tribunal, upon consideration of the evidence placed on record by the claimant and the KSRTC, has held that the accident occurred purely due to the negligence of the driver of the KSRTC bus. Even otherwise, it cannot be said that the claimant jumped from the bus while the bus was in motion. Moreover, except the interested testimony of the driver of the KSRTC bus, no other evidence has been produced by the KSRTC nor the KSRTC has examined any of the passengers of the bus. In the circumstances, I do not find any illegality committed by the Tribunal while coming to the conclusion that the accident occurred purely due to the negligence of the driver of the KSRTC bus.

Point No. 2: Coming to the determination of the compensation, it is borne out from the wound certificate-Ex. P5 that the claimant sustained the following injuries in the said accident:

i. Fracture of inferior both rami right pubic bones

ii. Fracture of right acetabulium

iii. Fracture of left iliac bone

iv. Fracture of left femur

v. Fracture of both bones left leg

vi. Fracture of left calcaneus

It is further evident that the claimant underwent treatment as an inpatient in District Hospital, Belgaum for a period of 37 days. He also underwent surgery during the period of hospitalization.

Having regard to the nature of injuries, the number of injuries, nature of treatment, period of hospitalization, it appears to me that an amount of Rs. 60,000/- would have been the just compensation to be awarded to the claimant under the head injury, pain and suffering'' as against Rs. 50,000/- awarded by the Tribunal.

Insofar as the compensation awarded under the head ''medical expenses'' is concerned, the Tribunal upon closer scrutiny of the medical bills produced by the claimant has rightly awarded a sum of Rs. 10,000/- under the head ''medical expenses'' and therefore, the question of interference by this Court does not arise. Further, the Tribunal has awarded a sum of Rs. 20,000/- towards ''future medical expenses'' and Rs. 50,000/- towards ''loss of amenities'' which appears to be just and proper.

Similarly, the Tribunal having regard to the evidence of the doctor, taking into consideration the disability to the whole body at 20% and the income of the claimant as Rs. 4,500/- per month and applying 13 multiplier, has awarded Rs. 1,40,400/- as compensation under the head ''loss of future income on account of disability''.

The learned Counsel for the respondent-claimant has submitted before me that, without any basis, the Tribunal has taken the income of the claimant as Rs. 4,500/-, though the claimant had pleaded that he was working as a Security Guard, he has not produced any document to substantiate the same. Under such circumstances, the Tribunal ought to have taken the income of the claimant as Rs. 3,000/- per month. There is an element of truth in the submission made by the learned Counsel for the respondent-KSRTC that the claimant has not produced any document in support of his income. But the fact remains that, he was aged 45 years at the time of accident. He must be having a family of dependents consisting of wife and children. Having regard to the fact that the accident occurred in 2008, claimant had family of dependents and considering the prices prevailing in the market, the income of the claimant taken by the Tribunal at the rate of Rs. 150/- per day seems to be just and proper, though the claimant has not produced documentary evidence in support of his income.

It is seen from the judgment of the Tribunal that it has not awarded any amount under the head ''loss of income during the period of treatment''. Having regard to the multiple fractures sustained by the claimant in the accident, it appears to me that he must have been incapacitated from attending to his work at least for a minimum period of four months and thereby he lost his income for the period of four months during the period of treatment. As such, an amount of Rs. 18,000/- is awarded under the head ''loss of income during the period of treatment''.

It is also seen from the judgment that the Tribunal has not awarded any amount under the head ''attendant charges'' though the claimant was inpatient for a period of 37 days in the District Hospital, Belgaum and that he had sustained multiple fractures. It goes without saying that the claimant was in need of the services of an attendant not only during the period of his hospitalization, but even thereafter for a month or two As such, the claimant has been awarded a sum of Rs. 9,000/- under the head ''attendant charges'' at the rate of Rs. 100/- per day for a period of three months.

The claimant is the resident of Belgaum. He was also treated in the District Hospital, Belgaum. Even then, it cannot be said that he has not spent any amount towards the travelling expenses. Since he had multiple fractures, definitely he must have hired a special vehicle in order to come to the hospital, not only at the time of his admission to the hospital, but even at the time of his discharge and also during the follow up treatment. Though he has not produced any bills or vouchers for having spent amount towards conveyance charges, he has been awarded a sum of Rs. 2,000/- under the head ''conveyance charges''.

Thus, the claimant has been held to be entitled for compensation under the following heads:

In the result, I pass the following:

ORDER

i. MFA No. 22359/2009 is partly allowed. The judgment and award dated 16.06.2009 passed in MVC No. 1574/2008 on the file of the II Addl. Civil Judge (Sr. Dn.) and Addl. MACT, Belgaum is hereby modified.

ii. The appellant/claimant has been awarded an enhanced compensation of Rs. 39,000/- ( Rs. 3,09,400-2,70,400) over and above the compensation awarded by the Tribunal together with 6% interest thereon from the date of petition till the date of realization.

iii. The respondent-KSRTC is directed to deposit the enhanced compensation amount within the period of two months from the date of receipt of copy of this order.

iv. In the event of deposit, the entire enhanced compensation amount shall be released to the claimant.

v. The statutory amount deposited shall be transmitted to the Tribunal. Send the records to the Tribunal forthwith.

MFA No. 23876/2009 is hereby dismissed.