THE MANAGING DIRECTOR vs NAGARAJU

This appeal is preferred by the appellant against the impugned judgment and award dated 12th March 2010 passed by the Addl. Senior Civil Judge and MACT, Ranebennur in MVC No.139/2006 by awarding in a sum of Rs.2,75,800/- with interest at 6% p.a.

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

The factual matrix of the appeal are as under: On 01.06.2004 at about 9.15 p.m, the petitioner/claimant was waiting for the bus after completion of his interview, at Habbigeri Cross, Bengaluru, extremely on the left side of the road. At that time, one BMTC bus bearing registration No.KA-01/F-1449 came from Northern side towards Southern side on Abbigeri Main Road, the driver of the said bus drove the same in a rash and negligent manner and dashed to the petitioner and caused the accident. Due to the said accident, petitioner has sustained grievous injuries to all over the body and fracture of right foot and two fingers were cut off. It is further stated that due the accident met by the petitioner, who shifted to Sanjayagandhi Accidental Hospital, Bangalore, wherein he was taken treatment for about 4 days and thereafter shifted to Bapuji Hospital Davanagere. It is further stated that he took treatment from 05.06.2004 to 25.06.2004 as an inpatient. Plastic surgery was done while he was admitted in the said hospital. The petitioner has also taken the treatment at private hospital and thereby he has spent Rs.50,000/- for his treatment and also for medicine and other diet expenses. Still the petitioner is under the treatment, and requires another sum of Rs.20,000/- for the same. The accident was occurred due to rash and negligent driving of the BMTC bus. Hence, the petitioner has filed the claim petition before the Tribunal seeking compensation.

Upon service of notice, the respondent appeared and also filed detailed objection denying the accident and also further denial of the averments made in the claim petition. It is further contended in the objection that due to the negligence of the petitioner he sustained injuries and respondent is not responsible for the injury sustained by him. It is further stated that driver of the bus who was driving a bus in a slow and cautiously and when the bus came near Abbiegri cross, the passengers boarded the bus and the driver moved the bus as per the signal given by the conductor. In the meanwhile, towards the moving bus one of the passenger suddenly jumped out from the bus by holding umbrella and while doing so, the leg of the said petitioner suddenly came in contact with tyre of the wheel of the bus, and as such he sustained injuries. Hence, he seeks for dismissal of the petition.

Based upon the pleadings of the parties, the Tribunal has framed the following issues: 1. Whether the petitioner proves that on 01.06.2004 at about 9.45 p.m. on Hebbigeri cross, Bengaluru, the accident was occurred due to rash and negligent driving of the BMTC bus bearing registration No.KA-01/F-1449by its driver?

Whether petitioner further proves that, he was sustained grievous injuries in the said accident?

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

What order or award?

In order to establish the case, the respondent/petitioner got examined himself as PW1. Apart from that PW.2 being a doctor who has also examined and got marked the documents at Exs.P1 to P110. The respondent did not examine any oral and documentary evidence on his behalf to establish the case, even though filed objection in detail by taking various contentions. Thereafter the Tribunal heard the arguments advanced by the both sides and holding issue Nos.1 and 2 in affirmative and issue No.3 holding partly affirmative. Accordingly, the impugned judgment has been passed by the Tribunal. Against which the judgment and award has been challenged in this appeal.

Heard the learned counsel for the appellant and the learned counsel for the respondent.

Learned counsel for the appellant has taken through the records including the evidence of PW.1 and PW.2 as well as documents at Ex.P1 to P.110 have been got marked by the petitioner to establish the case. The compensation awarded by the Tribunal is contrary to the facts and circumstances of the case and also based on the evidence adduced by the petitioner as well as production of documents. Therefore, it needs to be revisiting of the impugned judgment keeping in view the evidence of PW.1 and 2 and also the documents. It is further contended that the Tribunal has awarded Rs.40,000/- towards pain and suffering by the injured and the same appears to be on the higher side by considering the fact that, the claimant sustained fracture of proximal phalanyx of second toe of right foot and second toe was amputed because of gangrene. But the Tribunal has not been appreciated the evidence on record and awarded the compensation. Therefore, it needs to be revisiting the impugned judgment awarded by the Tribunal in various heads. It is further contended that the Tribunal has awarded Rs.38,800/- towards medical expenses and Rs.50,000/- towards loss of amenities and amount of Rs.20,000/- towards future medical expenses without any basis. It is erred in awarding Rs.10,000/- towards loss of income during treatment. The Tribunal has erred on relying the oral evidence of PW.2 being a doctor who has not treated the injured and issued disability certificate by examining after lapse of 4 years on 02.08.2008. Therefore, it needs to be revisiting the impugned judgment by considering the grounds as urged in this appeal and setting aside the impugned judgment and award passed by the Tribunal.

Per contra the learned counsel for respondent during the course of argument in this appeal has taken contention that petitioner being the injured examined as PW.1 has filed an affidavit has specifically stated in proving the case that he has sustained injuries and also taken treatment as an inpatient to that effect he has produced Ex.P10 Inpatient certificates, Ex.P8 two discharge cards, Ex.P6 wound certificate, Exs.P12 and 13 are the case summaries, Ex.P14 is the report, Ex.P100 is the medical bills. As these documents produced apart from that Ex.P103 follow up treatment slip of Dr.Ullal, Ex.P104 is the disability certificate, Ex.P105 is X-ray has been produced to establish the case. Therefore, it does not call for any interference of the impugned judgment and award passed by the Tribunal and seeks for dismissal of the appeal.

As these contentions taken by the learned counsel for the appellant as well as the learned counsel for respondent, it is necessary to state that on 01.06.2004 at about 9.15 p.m. wherein the petitioner was waiting for the bus after completion of his interview, at Habbigieri cross, Bengaluru, extremely on the left side of the road. At that time one BMTC bus bearing registration No.KA-01/F-1449, which came from Northern side towards Southern side on Abbigeri Main Road, the driver of the said bus drove the same in a rash and negligent manner and dashed to the petitioner and wheel of the bus ran over on the leg of the petitioner and as he sustained injuries. Due to the injuries sustained by the petitioner he had taken treatment in Sanjaygandhi Accidental Hospital, Bengaluru. The petitioner had taken treatment for about 4 days and then shifted to Bapuji Hospital Davanagere. The petitioner who has taken treatment from 05.06.2004 to 25.06.2004 as an inpatient. The plastic surgery was also done in that hospital as the petitioner sustained injuries. It is necessary to state that the petitioner who has filed an affidavit having stated in detail that he was working at KHDC office Ranebennur and earning a sum of Rs.8,000/- per month and his age was 50 years. However due to the accident occurred and also sustained injuries, he has spent more than Rs.20,000/- for his treatment. But the learned counsel for the appellant during the course of argument as taken through the entire record, which consist of documents whichever got marked at Exs. P1 to P110 and also the evidence of PW.1 and PW.2 as they were examined by petitioner in order to establish his case for seeking compensation and the same is required to be re-appreciated. However, the Tribunal has come to the conclusion that petitioner has been established the case against the respondent and awarded the compensation of Rs.2,75,800/- with interest at the rate of 6% per annum and based upon the evidence on records. The petitioner has stated that, he was earning Rs.8,000/- per month but he has not produced any salary certificate. This aspect was also analyzed by the Tribunal keeping in view the evidence of PW.1 and PW.2 and also Exs.P1 to P110 has been produced. However, the appellant counsel has taken contention that the Tribunal has awarded the compensation under the head loss of future income of the petitioner though being an employee at KHDC office Ranebennur and there is no question of loss of income to the petitioner arise. Whereas keeping in view the evidence, it is said that there is no substance in the contention of the learned counsel for the appellant for interference of the impugned judgment and award passed by the Tribunal and there are no justifiable grounds urged in this appeal and appears to be devoid of merits. Accordingly the appeal filed by the appellant is rejected. If any amount deposited, the same shall be transmitted to concerned Tribunal for disbursement forthwith.