The Divisional Controller NWKSRTC and Others vs M.M. Basavaraj and Others

B. Sreenivas Gowda, J.—MFA 10356/2011 is filed by the Corporation challenging the judgment and award passed by the Tribunal on the ground of negligence and quantum, whereas MFA Cross Objection 98/2012 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal. As they are arising out of the same judgment and award of the Tribunal, they are heard together and disposed of finally by this common judgment, with the consent of the learned Counsel appearing for the parties.

For the sake of convenience 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 occurred on 14-11-2009 by involvement of a two wheeler and a KSRTC bus, the only points that arise for my consideration in this appeal and cross objection are:

"i) Whether the finding of the Tribunal on negligence in holding that the accident has occurred due to rash and negligent driving of the driver of the KSRTC bus is sustainable in law ?

ii) Whether the compensation of Rs. 2,79,994/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement ??"

Sri. Dabali, the learned Counsel appearing for the KSRTC submits, even though the driver of the KSRTC bus was driving the bus on the left side of the road slowly and carefully by observing traffic rules and regulations, still the accident has taken place due to rash and negligent riding of a two wheeler by the claimant himself. The Tribunal without considering the sketch and other material available on record has committed an error in holding that the accident has occurred due to rash and negligent driving of the driver of the KSRTC bus. Regarding quantum he submits, compensation awarded by the Tribunal is on the higher side and therefore he prays for allowing the appeal filed by the KSRTC and dismissing the cross objection filed by the claimant.

Per contra, Sri. Prashantha, the learned Counsel appearing for the claimant submits that there is no error in the finding of the Tribunal on negligence, warranting interference of this Court. But he submits, quantum of compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and therefore he prays for allowing the cross objection filed by the claimant and dismissing the appeal filed by the KSRTC.

Regarding point No. 1 :

"The claimant in support of his contention that he had sustained injuries in the accident that occurred on 14-11-2009 due to rash and negligent driving of the KSRTC bus by its driver has not only examined himself as P.W.1, but has also produced FIR, complaint, restatement, charge sheet, spot mahazar and MV report marked as Exs. P.1 to P.4 and P.6 and P.7 respectively. The KSRTC which contends that the accident has occurred due to rash and negligent riding of two wheeler by the claimant himself, has not chosen to examine anybody, including its driver and conductor. The 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 Tribunal considering the above aspect of the matter and the oral and documentary evidence on record was justified in holding that the accident has occurred due to rash and negligent driving of the driver of the KSRTC bus."

I have carefully gone through the finding of the Tribunal on negligence and do not find any illegality warranting interference. Hence, finding of the Tribunal on negligence is confirmed and point No. 1 is answered accordingly.

Regarding point No. 2 :

As per Ex. P. 5 - wound certificate, claimant had sustained the following injuries :

"1) Fracture of coleus,

2) Fracture of left wrist,

3) Fracture right parasymphysis of Mandible

4) Fracture of zygomatic maxillary complex

5) Fracture of radius and styloid process of ulna"

Injuries sustained and treatment taken by the claimant are evident from Ex. P. 8 - inpatient card, Exs. P. 9 and 10 - discharge cards, Ex. P. 11 - disability certificate, Exs. P. 72 to 74 - x-ray films and they are corroborated by the oral evidence of the claimant and two doctors examined as P.Ws.1, 2 and 3 respectively.

Considering multiple fractures sustained and duration of treatment undergone by the claimant, a sum of Rs. 75,000/- is awarded towards pain and suffering as against Rs. 20,000/- awarded by the Tribunal.

Claimant has produced medical bills for Rs. 64,921/- as per Exs. P. 15 to 17 and they are supported by prescriptions produced at Ex. P. 71(a) to (z) and they are not disputed by the KSRTC. He was treated as inpatient for 13 days at SSI and Apoorva Hospital, Davangere. Considering the same, Rs. 70,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper.

He claims to have been earning Rs. 5,000/- per month by doing part time job of designing of advertisements, sign boards and number plates and has produced salary certificate - Ex. P. 75. Neither the author of salary certificate or the employer of the claimant is examined. In the absence of proof of income, considering his age as 21 years and year of accident as 2009 his notional income is assessed at Rs. 4,000/- per month. Nature of injuries suggest that he must have been under rest and treatment for a period of five months. Therefore, a sum of Rs. 20,000/- is awarded towards loss of income during laid up period.

Admittedly, claimant was studying in III year B.Com. at the time of accident and further it is not the case of claimant that after sustaining injuries, he discontinued his part time job of designing of advertisements, sign boards and number plates. Therefore, awarding compensation towards loss of future income does not arise. Nevertheless, he has to bear with the permanent physical disability stated by P.Ws. 2 and 3 at 25 to 30% and certain amount of discomfort and unhappiness in his future life. Considering the same, justice would be met if a sum of Rs. 1,25,000/- is awarded towards loss of amenities and permanent disability as against Rs. 20,000/- and Rs. 1,54,404/- awarded by the Tribunal towards loss of amenities and loss of future income respectively.

Rs. 10,000/- awarded by the Tribunal towards future medical expenses is just and proper.

Thus the claimant is entitled for the following compensation:

Accordingly MFA No. 10356/2011 filed by the KSRTC is dismissed and MFA CROB No. 98/2012 filed by the claimant is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for additional compensation of Rs. 20,006/- 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 with interest within two months from the date of receipt of a copy of this judgment, and the same is ordered to be released in favour of the claimant.

Amount deposited in the appeal of the KSRTC is ordered to be transmitted to the Tribunal for disbursement in favour of the claimant.

No order as to costs.