T.A. Gangadharaiah @ Gangadhar vs The Managing Director, NWKRTC

S. Abdul Nazeer, J.—This appeal by the claimant is directed against the judgment and award in MVC No. 2819/2008 dated 1.7.2011 on the file of the Motor Accident Claims Tribunal at Bangalore. Sri T.A. Gangadharaiah filed the above petition represented by his wife Smt. Indira seeking compensation for the injuries sustained by him in the accident occurred on 27.2.2008. It is his case that when he was standing at Anchepalya bus stop by the side of Tumkur Bangalore, NH. 4 highway within the limits of Nelamangala, a bus belonging to the respondent-Corporation bearing registration No. KA-25F-2584 being driven by its driver in a rash and negligent manner dashed against him due to which he fell down and sustained severe head injuries. He was aged 26 years at the time of the accident. He was working as a Driver at Sri Sai Road Carriers, Bangalore and was drawing salary of Rs. 7,000/- per month and Rs. 100/- per day towards bata. Due to the accident, he is suffering from permanent residual physical disability and thereby lost his earning capacity. He has filed the above petition seeking compensation of Rs. 25,00,000/- together with interest and costs of the claim petition from the respondent.

The respondent-Corporation has entered appearance and filed written statement opposing the claim petition. It has denied the nature of injuries sustained, the procedure under went by the claimant during the treatment in the hospital, the Doctor, who had treated him for treatment, duration of treatment, the expenses incurred, disabilities, age, occupation and income of the claimant. It is contended that on the day of incident, the bus was proceeding on its scheduled trip from Bangalore to Hubli slowly, cautiously along the left side of the road observing the traffic rules. When the bus was so proceeding near Anchepalya bus stop, the claimant under the influence of alcohol abruptly darted in order to cross the road violating the traffic rules and came in contact with the bus and as such, the accident had occurred due to his own negligence. The driver of the offending bus was not responsible for the accident in any manner whatsoever.

On the basis of the pleadings of the parties, the has framed the following issues:

(1) Whether the petitioner proves that he has sustained injuries as mentioned in wound certificate in a road traffic accident on 27.2.008 at about 1.20 p.m. on Bangalore Tumkur road, NH. 4, near Anchepalya (bus stop, Bangalore, due to the rash and negligent driving of the driver of KSRTC bus bearing No. KA.25F.2584?

(2) Whether petitioner is entitled for any compensation? If so, to what extent?

(3) What order or award?

On behalf of the claimant, his wife was examined as P.W. 1 and 5 witnesses were examined as P.W. 2 to P.W. 6. The documents Ex. P1 to Ex. P26 were marked in their evidence. On behalf of the respondent, the driver of the bus was examined as R.W. 1.

On appreciation of the materials on record, the Tribunal has held that the claimant was also responsible for the accident to an extent of 20%. Thus, the negligence has been apportioned between the claimant and the driver of the offending bus in the ratio of 20:80. The Tribunal has determined the compensation payable in a sum of Rs. 7,46,000/-. After deducing 20% of the said amount, a sum of Rs. 5,96,800/- has been awarded to the claimant with interest at 6% per annum from the date of the petition till the date of deposit.

Learned Counsel for the appellant/claimant submits that the Tribunal is not right in holding that the claimant was also responsible for the accident to an extent of 20%. It is argued that the accident had occurred on account of the rash and negligent driving of the bus by its driver. Secondly, it is contended that the compensation awarded by the Tribunal is not adequate. The claimant was a driver by profession. He has suffered permanent disability of 78% to the whole body and 100% functional disability. He is not in a position to drive the vehicle on account of the permanent injuries sustained by him in the accident. It is argued that the claimant was earning Rs. 7,000/- per month. However, the Tribunal has taken his income at Rs. 4,000/- per month for computation of loss of future earning. It is further argued that the compensation awarded towards pain and suffering and loss of amenities is inadequate. The compensation awarded under all other heads is also insufficient.

On the other hand, Sri K. Nagaraja, learned Counsel appearing for the respondent-Corporation has sought to justify the impugned judgment and award. It is submitted that the Tribunal has rightly apportioned the contributory negligence between the claimant and the driver of the offending bus in the ratio of 20:80. It is argued that though the claimant is not in a position to work as a driver on account of the injuries sustained by him, he is in a position to do some other work. Therefore, the Tribunal has rightly considered 50% permanent disability to the whole body for the purpose of computation of loss of future earning capacity. The compensation awarded under all other heads is also reasonable.

I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

Having regard to the contentions urged, the first question for consideration is whether the Tribunal is justified in apportioning the liability in the ratio of 20:80 between the claimant and the driver of the offending bus?

The case of the respondent-Corporation is that the driver of the offending bus was driving slowly, cautiously along left side of the road observing the traffic rules and regulations and when the bus was so proceeding at Anchepalya bus stop, the claimant darted on the road all of a sudden without observing the traffic in unmindful manner with intent to cross the road and while doing so, he came in contract with the bus and fell down and sustained injuries. P.W. 4 is an eye witness of the incident. In his examination-in-chief, he has deposed that when he along with claimant was standing on the left side of NH. 4 road near Anchepalya bus stop for the purpose of crossing the road, the offending bus came and hit against the claimant. In his cross-examination, he has stated that there was no pedestrian crossing at the place of accident. He has again stated that there is pedestrian crossing and the injured was crossing on the said pedestrian cross and there were four persons including the claimant crossing the said mad. When the claimant crossed half of the road, the bus came and hit against him. It is clear from this evidence that at the time of happening of the accident, the claimant was crossing the road.

The driver of the offending bus was examined as R.W. 1. In his cross-examination, he has stated that normally public cross the road near the place of accident is not true because there is no provision made for pedestrian crossing. The claimant came from right side of the road and dashed against right side driver''s door because there was space for him to cross the road from right side. Thus, the driver of the offending bus stated that it is on account of the negligence of the claimant while crossing the road, the accident had occurred.

It is well established that if a pedestrian is crossing over a road way at a place other than which is meant for pedestrian crossing, certain degree of contributory negligence will have to be attributed to him and he has to share the negligence along with the driver. In the instant case, it is clear that the claimant was crossing the road in a place where there is no pedestrian crossing. Under these circumstances, he has to share negligence to some extent. On appreciation of the entire materials on record, the Tribunal has rightly apportioned the negligence in the ratio of 20:80 between the claimant and the driver of the offending bus. I do not find any error in the said finding of the Tribunal.

That brings me to the second question as to whether the compensation awarded by the Tribunal is just and reasonable?

According to the claimant, he was a driver by profession. The driving licence at Ex. P14 indicates that he was having the licence to drive heavy passenger vehicle as on the date of the accident. The accident had occurred on 27.2.2008. The claimant was aged 26 years at the time of the accident. Though the claimant contends that he was earning Rs. 7,000/- per month, no materials have been produced in support of the said contention. Since the claimant was driving a heavy passenger vehicle, it is just and proper to notionally fix his income at Rs. 200/- per day (Rs. 6,000/- per month).

The third question for consideration is what is the percentage of functional disability the claimant had sustained on account of the injuries sustained by him in the accident?

Since the claimant was not in a position to depose because of the neurological disorder, his wife was examined as P.W. 1. In fact, the claim petition was also filed through her as next friend of the claimant. In her evidence, she has stated that the claimant is not in a position to drive the vehicle on account of the injuries sustained by him in the accident. He was the only bread winner of the family.

Dr. S. Ramachandra, Orthopaedic Surgeon working at Bowring and Lady Curzon Hospital, Bangalore, was examined as P.W. 5. In his evidence, he has given the details of the injuries sustained by the claimant in the accident. He has assessed the collective whole body disability at 57%. He has stated that the claimant cannot do driver''s job in the interest of public safety as his driving will endanger others on the road.

Dr. Sharan Srinivasan, Consultant Neuro Surgeon at Abhaya Hospital, Bangalore, was examined as P.W. 6. He has also stated in detail the neurobehavioral assessment of the claimant. He has assessed neurological disability, neuro behavioral disability and cognitive disability of the claimant and has stated that his a vocational disability can be taken as 78.5% (irrespective of avocation).

As stated above, the claimant was driving a heavy passenger vehicle. It is well established that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. The Apex Court in Mohan Soni Vs. Ram Avtar Tomar and Others, has held as under:

On hearing Counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen''s Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal fanner who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one''s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.

In the instant case, the claimant was working as a heavy passenger vehicle driver. On account of the injuries sustained by him in the accident, he is not in a position to drive the said vehicle. I am of the view that the Tribunal ought to have taken 100% functional disability to the whole body for the purpose of computation of loss of future earning.

I have already assessed his income at Rs. 6,000/- per month. He was aged 26 years at the time of the accident. The multiplier applicable to the case is 17. By taking his income at Rs. 6,000/- per month with the application of multiplier 17 and 100% functional disability, the compensation payable towards loss of future earning comes to Rs. 12,24,000/-. He is also entitled for a sum of Rs. 1,00,000/- towards pain and suffering. He is not in a position to enjoy his life as before. I am of the view that a sum of Rs. 1,00,000/- has to be awarded towards loss of amenities. He is also entitled for a sum of Rs. 25,000/- towards conveyance, nourishment and attendant charges. He is entitled for a sum of Rs. 2,24,000/- towards medical expenses as per the bills. In all, the compensation payable to the claimant comes to Rs. 16,73,000/-.

Having regard to the finding that claimant is also liable for the accident to an extent of 20%, 20% of the aforesaid amount has to be deducted towards contributory negligence, which comes to Rs. 3,34,600/-. The balance of compensation payable to the claimant comes to Rs. 13,38,400/-. The Tribunal has awarded a sum of Rs. 5,96,800/- which has to be deducted from the aforesaid amount and the balance of compensation payable to the claimant is Rs. 7,41,600/-. The said sum of Rs. 7,41,600/- shall carry interest at 6% per annum. In the result, the appeal succeeds and it is accordingly allowed in part. The respondent - Corporation is directed to deposit a sum of Rs. 7,41,600/- with interest at 6% per annum from the date of the petition till the date of deposit within a period of six weeks from the date of receipt of a copy of this order. The Tribunal is directed to deposit a sum of Rs. 6,00,000/- in a fixed deposit in a Nationalised Bank in the name of the appellant for a period of ten years. He is permitted to withdraw interest annually. He is also permitted to withdraw the balance of the amount. No costs.