PARASHRAM MALLAPPA KADAM vs THE MANAGING DIRECTOR

The appeal in MFA No.25382/2012 is filed by the appellant/claimant seeking enhancement of compensation. The appeal in MFA No.20909/2013 is filed by the Managing Director, NWKRTC seeking for setting aside the impugned judgment and award passed by the Presiding Officer, Fast Track Court-II, and Member Addl. District and Sessions Judge, Belgaum in MVC No.2670/2011, dated 28th August 2012.

For the convenience, the parties are referred to as per their rank before the Tribunal.

The factual matrix of these appeals are as under: On 09.10.2011, the petitioner being the driver of the goods truck bearing No.GA-02/VS-5796 was proceeding from Belagavi towards Goa for unloading the vegetable goods. When the said truck crossed the Tinai ghat on NH-4A, near Railway gate, the rear wheel of the truck was punctured. It is further stated that the petitioner, who parked the truck on the extreme left side of the road and got down from the vehicle along with the cleaner. In the meanwhile, KSRTC bus bearing No.KA-29/F-985 came from Tinai Ghat side driven by its driver in a rash and negligent manner in excessive speed so as to endanger human life and dashed to the parked vehicle to its hind side. As a result, the petitioner and the cleaner of the truck were thrown away and the front wheel of the bus ran over on the left leg of the petitioner. Due to which, the petitioner sustained crush injuries to his left leg and other grievous injuries over his body. Thereafter, the injured was shifted to the Government Hospital, Ramnagar for treatment and also he was shifted to District Hospital at Belgaum and thereafter he was again shifted to the KLE Hospital, Belgaum for treatment as inpatient. During the course of treatment, his left leg below knee was amputated. Again the left leg was operated twice and skin drafting was done. It is further stated that in KLE Hospital, the claimant was admitted from 08.11.2011 to 28.11.2011 as inpatient and undergone further operation. He has spent more than Rs.2,00,000/- towards treatment. It is further stated that the due to amputation of the left leg below the knee, he has lost his 100% working and earning capacity due to the accident. The claimant who has filed the claim petition before the Tribunal for seeking compensation as narrated in the claim petition in detail, subsequent to the petition which has been filed by the petitioner.

On receipt of the notice, the respondents were putting up their appearance through their counsel and also filed their objections in detail, wherein it is contended that the petition filed by the petitioner is vexatious and also false. Hence, the petition is not maintainable. It is further contended that the averments made in the petition that on the date of alleged incident i.e., on 09.10.2011, the petitioner being the driver of the aforesaid lorry bearing No.KA-02/VS-5796, which was proceeding from Belagavi towards Goa for unloading the vegetable goods and when the said truck crossed the said Ghat, a KSRTC bus bearing No.KA-29/F-985 came from Tinai Ghat side driven by its driver in rash and negligent manner, met with an accident, as a result of the same, the petitioner sustained crush injuries, it is only to create the averments in the claim petition for seeking compensation. As thus, seeking for dismissal of the petition.

Upon the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner proves that he has sustained injuries in the alleged accident caused on 09.10.2011 at about 4:00 hours, while he was replacing the punctured type of Truck bearing No.KA-02/VS-5796 pm Belgaum-Panaji Road, NH-4A, near Tinai Ghat, Railway Gate, due to rash and negligent act of the driver of the said NWKRTC bus bearing No.KA-29/F-985?

Whether the petitioner is entitled for compensation? If so, for how much and from whom?

What order or award?

In order to establish the case, the petitioner examined himself as PW1 and examined the Doctor as PW2 and also got marked the documents as Exs.P1 to P18. Subsequenlty, the respondent examined the driver of the KSRTC bus bearing No.KA-29/F-985 as RW1 and closed their evidence. Thereafter, the Court below, who heard the arguments and perused the materials available on record and also the evidence adduced by PW1 and PW2 and also the documents at Exs.P1 to P18, which have been produced to establish the case. Based upon the same, the Tribunal has awarded a sum of Rs.8,94,917/- along with costs and interest at 9% p.a. from the date of petition till its realization.

Heard the learned counsel for the appellant and the learned counsel for the respondent in these appeals.

Learned counsel for the appellant in MFA No.25382/2012 has taken contention that the award passed by the Tribunal is on the lower side. Therefore, it requires to be intervention of the impugned judgment and also revisiting the impugned judgment by having gone through the entire evidence, which has put forth by PW1 and PW2 and also the documents produced at Exs.P1 to P18. It is further contended that the compensation of Rs.75,000/- awarded by the Tribunal under the head pain and suffering is on the lower side and the same requires to be enhanced, since his left leg below knee was amputated. It is further pointed out that the Tribunal erred in taking the income of the appellant at Rs.200/- per day and the compensation of Rs.7,02,000/- awarded towards loss of future earnings due to permanent physical disability is on the lower side. Therefore, it require to be intervention of the impugned judgment and also revisiting the judgment by having gone through the entire evidence on record under the head of compensation awarded to the claimant/petitioner, who has suffered amputation of left leg below the knee as 100% disability but the Tribunal taken the same at 75%. Therefore, it is require to be appreciation of evidence on record keeping view of the decisions reported in KAR.MAC 2011, page 324 and KAR 2012, page 368. These decisions are applicable to the facts and circumstances of the case on hand and the same may be considered. It is further contended that the Tribunal erred in holding the disability at 75% to the whole body of the claimant, who has sustained injuries and also amputation of his left leg below the knee and was also an inpatient for a period 40 days from 09.10.2011 to 31.10.2011 and from 08.11.2011 to 28.11.2011. Therefore, it is required to be considered coupled with the evidence of PW2, the Doctor, who has given the treatment and also subjected him for examination and the Doctor has also assessed the disability at 100% to the whole body. But the Tribunal has erred by taking the disability at 75% overlooking the technical evidence. Therefore, it is required to be considered along with the grounds urged in this appeal for seeking enhancement of compensation.

On the other hand, the learned counsel for the NWKRTC submits that the impugned judgment and award passed by the Tribunal may be maintained keeping in view of the evidence of PW1 and PW2 and also the documents at Exs.P1 to P18 and thereafter to pass impugned judgment awarding compensation of Rs.8,94,917 with interest at 9% p.a., which is just and fair and does not call for any interference by this Court. In this regard, it is relevant to state that PW1 who has stated in his evidence by reiterating the averments taken in the petition filed by him and the manner in which the alleged incident happened. In support of his contention, he got marked the complaint, FIR, spot panchanama with sketch, IMV report, charge sheet at Exs.P1 to P4 and P8 respectively. PW1, who has not been cross-examined in detail. It is further pointed out that KSRTC bus bearing No.KA-29/F-985, which is the offending vehicle, that has caused injuries to the claimant petitioner and also amputation of his left leg below the knee and the same has been seen in the evidence of the PW1 so also the evidence of PW2, Doctor who subjected him for examination to establish his case for seeking compensation as sought for by taking the contention in the claim petition, which has been filed by him. It is further contended that the petitioner in the alleged incident has sustained crush injuries to the left leg and he took treatment at various hospitals and also amputation of his left leg below knee in KLE Hospital, Belgaum and also sustained crush injuries. Ex.P5 is the wound certificate, which is issued by the Government Hospital, Ramanagar, wherein he took treatment. Ex.P6 is the wound certificate issued by the Civil Hospital, Belagavi, wherein the injured took treatment, wherein it reveals that the appellant/claimant has sustained lacerated wound 15x15 cm bone depth on left foot dorsal surface bleeding present. As per X-ray report, evidence of fracture base of the 3rd, 4th and 5th metatarsal radio opaque foreign bodies in the left ankle foot. Ex.P7 is the wound certificate issued by the KLE Hospital, Belgaum, which reveals that dressed wound left foot and ankle after removing dressing, badly crushed and contaminated up to above left ankle bones muscles bleeding present. X-ray report show that left knee that is on 17.10.20111 distal half of the shaft of tibia and fibula are not visualized (history of the surgey). It is relevant to state that Exs.P9 and P10 are the summary sheets issued by the KLE Hospital, Belgam, wherein it is said that the claimant has sustained crush injuries to his left foot and amputation of his left leg below knee parts.

As these evidences, which have borne out in the impugned judgment and award passed by the Tribunal, wherein it has considered and also awarded compensation of Rs.75,000/- under the head pain and suffering, but in view of the evidence of PW1 and also the documents at Exs.P1 to P18 to establish his case is on the lower side and therefore, it requires to be enhanced by another sum of Rs.25,000/- apart from Rs.75,000/- which is already awarded. In all a sum of Rs.1,00,000/- is awarded under the head pain and suffering. In respect of loss of amenities are concerned, the Tribunal has awarded a sum of Rs.20,000/-, which is also on the lower side. Keeping in view of the evidence of PW1 and also the evidence of PW2 being a Doctor, who given treatment to him. Therefore, it requires to be enhanced by another sum of Rs.80,000/- apart from Rs.20,000/- awarded by the Tribunal. In all a sum of Rs.1,00,000/- is awarded under the head loss of amenities. Insofar as compensation towards diet and attendant charges, the Tribunal has awarded a sum of Rs.10,000/-, which is on the lower side, therefore keeping in view of the evidence of PW1 and the documents at Exs.P1 to P18 to establish his case, another sum of Rs.15,000/- is awarded under the said head. In all a sum of Rs.25,000/- is awarded under the head diet and attendant charges. Insofar as loss of income during laid up period, the appellant/claimant took treatment as inpatient at various hospitals for crush injuries and also amputation to his left leg below knee. Therefore, a sum of Rs.10,000/- is awarded towards loss of income during laid up period including a sum of Rs.4,000/- awarded by the Tribunal, which is on the lower side. Insofar as compensation towards conveyance is concerned, the Tribunal has awarded a sum of Rs.2,000/-, which is on the lower. Therefore, a sum of Rs.5,000/- is awarded including a sum of Rs.2,000/- towards conveyance. The rest of the compensation awarded by the Tribunal in the tabular form are undisturbed. Therefore, the compensation awarded by the Tribunal is reassessed as under:

Towards pain and suffering Rs.1,00,000/-

Towards medical expenses Rs.81,917/-

Towards loss of future earnings due to permanent physical disability Rs.7,02,000/-

Towards loss of amenities Rs.1,00,000/-

Towards diet and attendant charges Rs.25,000/-

Towards loss of income during laid up period Rs.10,000/-

Towards conveyance Rs.5,000/-

TOTA Rs.10,23,917/-

Accordingly, the appeal in MFA No.25382/2012 filed by the appellant/claimant is hereby allowed in part and the appeal in MFA No.20909/2013 filed by the NWKRTC is hereby rejected. The appellant/claimant is entitled to the enhanced compensation of Rs.10,23,917/- instead of Rs.8,94,917/- awarded by the Tribunal with interest at the rate of 9% p.a. from the date of petition till the date of realization. The amount in deposit shall be transmitted to the Tribunal for disbursement forthwith.