The Divisional Controller, KSRTC vs M.J. Basavegowda and Others

B. Sreenivas Gowda, J.—MFA. No. 11166/2012 is filed by the KSRTC challenging the judgment and award passed by the Tribunal both on the ground of negligence and quantum and MFA. No. 5603/2013 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.

As these two appeals arise out of the common judgment and award passed by the learned Prl. Senior Civil Judge & Addl. MACT, Hassan, in MVC. No. 845/2009, dated 1st September 2012, with the consent of the learned counsel for the parties, they are heard together and disposed of finally by this common judgment.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 29.12.2008 by involvement of a motorcycle and a KSRTC bus, the points that arise for my consideration in these appeals are:

"1. Whether the finding of the Tribunal on the point of negligence holding that the accident has taken place due to rash and negligent driving of KSRTC bus is proper or not?

Whether the compensation of Rs. 1,46,700/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement or reduction?"

The learned counsel appearing of KSRTC submits that though the driver of the KSRTC was driving the bus on the left side of the road slowly and carefully by observing the traffic rules and regulations, the accident has taken place due to rash negligence riding of the motorcycle by the claimant himself and that the Tribunal without considering this, has committed an error in holding that the accident has taken place due to rash and negligent driving of the driver of the KSRTC bus. He further submits that the quantum of compensation awarded by the Tribunal is on the higher side and has prayed for allowing the appeal filed by the KSRTC.

The learned counsel appearing for claimant submits that there is no illegality or irregularity in the findings of the Tribunal with regard to negligence which does not warrant interference by this Court. Regarding quantum of compensation, he submits that the compensation awarded by the Tribunal is not just and reasonable as the same is on the lower side and therefore, he prays for allowing the appeal filed by the claimant by enhancing the compensation.

On perusal of the records, it is seen that FIR is registered against the driver of the KSRTC bus. The police after investigating the complaint, have filed charge sheet against the driver of the KSRTC bus. The claimant in support of his contention that accident has taken place due to rash and negligent driving by the driver of the KSRTC bus has not only examined himself as PW-1, but also has produced police notice, FIR, complaint, IMV report and spot mahazar which were marked as Exs. P-1 to 3, P-5 & 6 respectively.

On the other hand, it is the contention of the KSRTC that the accident took place due to rash and negligent riding of two wheeler by the claimant himself and not on account of negligent driving by the driver of the KSRTC bus. However, the KSRTC except examining the driver of the bus and a Security Officer as RWs. 1 & 2, has not chosen to examine the conductor of the bus or any passenger of the bus, which they could have done without any difficulty. The Tribunal considering the oral and documentary evidence on record, has held that accident has taken place due to rash and negligent driving by the driver of the KSRTC bus. I have carefully gone through the findings of the Tribunal on the point of negligence and I do not find any illegality warranting interference by this Court. Point No. 1 is answered accordingly.

With regard to point No. 2, as per wound certificate Ex. P-4 the claimant has sustained injuries to both shoulders and spinal card (cervical) injury. The contention of the claimant is that there is fracture of humorous, but the same is not supported by X-Ray or corroborated by oral evidence of the doctor. Perusal of medical records would show that he has sustained injuries to both shoulders and there is compression injury to spinal card. The injuries sustained and the treatment taken by the claimant are also evident from Ex. P-10 case sheet and Ex. P-11 X-Ray and also corroborated by the oral evidence of the doctor who treated the claimant.

Considering the nature of injuries sustained by the claimant, Rs. 35,000/- is awarded towards ''pain and suffering'' as against Rs. 20,000/- awarded by the Tribunal.

As Rs. 20,000/- awarded by the Tribunal towards ''medical expenses'' is as per the medical bills and prescriptions produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.

The claimant was treated as inpatient in Sanjeevini Co-operative Hospital, Hassan and thereafter at BGS Hospital, Bangalore and at NIMHANS. Considering the duration of treatment, Rs. 10,000/- is awarded towards ''incidental expenses'' such as conveyance, nourishment and attendant charges.

Claimant is said to have been earning Rs. 10,000/- per month by doing agriculture and RTC extract is produced in support of the same. Therefore, considering the age of the claimant i.e., 45 years as on the date of accident, year of accident as 2008 and avocation as agriculturist, his income is assessed at Rs. 4,500/- per month instead of Rs. 4,000/- as assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of more than four months. Therefore, a sum of Rs. 18,000/- is awarded towards ''loss of income during laid up period'' as against Rs. 8,000/- awarded by the Tribunal.

Considering the disability stated by the doctor i.e., 37% disability to both upper limbs and 12% to the whole body and an amount of discomfort and unhappiness he has to undergo in the future life, Rs. 20,000/- is awarded towards loss of amenities'' as against Rs. 10,000/- awarded by the Tribunal.

According to the learned counsel for KSRTC, the disability stated by the doctor PW-2 at 37% to upper limbs cannot be taken into consideration as he is not a Neurologist and also the disability to whole body at 12% as taken by the Tribunal is on the higher side. It is to be noted that claimant has sustained injuries to both the shoulders as well as spinal card (cervical). Further, there is no merit in the contention of the learned counsel for the KSRTC that one-fourth disability stated by the doctor to the upper limb is to be taken as the disability caused to whole body in view of the injuries sustained by the claimant to cervical and therefore the Tribunal is justified in taking it at 12%. If that is so, loss of future income would work out to 4,500 x 12 x 12/100 x 14 = Rs. 90,720/- and it is awarded.

Thus, the claimant is entitled for the following compensation:--

*corrected vide chamber order dt. 31-07-2015

Accordingly, MFA. No. 5603/2013 filed by the claimant is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs. 47,020/- with interest at 6% p.a. from the date of claim petition till the date of realisation.

The KSRTC is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 70% with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 5 years with a right of option for him to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.

The Tribunal while releasing the amount is directed to issue FD slip to the claimant, so that he can withdraw the FD amount on its maturity and the Bank/Post Office in which the amount will be kept in FD is also directed to release the FD amount on maturity without insisting further orders from the Tribunal.

MFA. No. 11166/2012 filed by the KSRTC is dismissed as devoid of merits in view of partly allowing the appeal filed by the claimant. The amount in deposit before this Court shall be transmitted to the Tribunal for disbursement as stated above.

No order as to costs.