V.J. Krishna and Others vs The Managing Director, KSRTC and Others

B. Sreenivas Gowda, J.—As these appeals are arising out of a common road traffic accident and common judgment of the Tribunal, with the consent of the learned counsel appearing 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 injuries sustained by the claimants in a road traffic accident occurred on 29.07.2009 by involvement of a Motor cycle bearing registration No. KA-53-E-2329 and a KSRTC bus bearing registration No. KA-42-F-30, the points that arise for consideration in these appeals are:

(1) "whether the finding of the Tribunal on negligence holding that the accident has occurred due to rash and negligent driving of KSRTC bus by its driver is sustainable in law?"

(2) Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement?"

Sri. F.S. Dabali, learned counsel appearing for KSRTC submits that the rider of motor cycle who is the claimant in MVC No. 6039/2009 had also contributed for the accident as per Spot Mahzar and the Tribunal without considering the said material document has committed an error in holding that the accident has occurred due to sole rash and negligent driving of the driver of KSRTC bus. He further submits that even quantum of compensation awarded by the Tribunal is on the higher side. Therefore, he prays for allowing the appeal filed by the KSRTC both on the ground of negligence as well as quantum and prays for dismissal of the appeal filed by the claimant.

Sri. Jagadish for Sri. R Chandrashekara for Lawyers Net appearing for the claimants submits that there is no illegality or infirmity in the finding of the Tribunal on negligence warranting any interference by this Court. He submits quantum of compensation awarded by the Tribunal is on the lower side, therefore he prays for allowing the appeal filed by the claimants by enhancing the compensation awarded by the Tribunal and dismissing the appeal filed by the KSRTC.

Regarding point No. 1, the claimants who are rider and pillion rider of a two wheeler involved in the accident in support of their contentions that though they rode their two wheeler on the left of the road slowly and carefully by observing traffic rules and regulations, the accident has taken place due to rash and negligent driving of the driver of KSRTC bus have examined themselves as PW-1 and 2 respectively and have produced FIR, Panchanama, IMV Report, Charge Sheet which were marked as Ex. P-1, P-2, P-3 and P-5 respectively. The KSRTC which contends that the rider of two wheeler in MVC No. 6039/2009 had also contributed for the accident except examining its driver as RW-1, has not examined either the conductor of the bus or any passenger nor adduced any other evidence in that regard though it could have easily examined its conductor.

The Tribunal considering the oral and documentary evidence on record has held that the accident has occurred due to rash and negligent driving of the driver of KSRTC bus. I have carefully gone through the findings of the Tribunal on negligence and have not found any illegality warranting my interference. Therefore, the finding of the tribunal on negligence is confirmed. Point No. 1 is answered accordingly.

Point No. 2 - MFA No. 9040/2011 connected with MFA 5997/2011 have arisen out of MVC No. 6039/2009.

The injured claimant in this case is one Sri. V.J. Krishna who is aged about 40 years. As per Ex. P-4 Wound Certificate, he has sustained Type - II open fracture of both bones of right leg and tibial spine avulsion.

Injuries sustained and treatment taken by him are also evident from Ex. P-10 Discharge Summary and Ex. P-14 Case Sheet corroborated with the oral evidence of the claimant and doctor who were examined as PW-1 and PW-3 respectively. Considering the nature of injuries sustained by the claimant, a sum of Rs. 45,000/- is awarded towards Tain and Suffering'' as against Rs. 60,000/- awarded by the Tribunal.

As Rs. 50,000/- awarded by the Tribunal towards medical expenses is as per medical bills and prescriptions produced by the claimants, the same is just and proper and there is no scope for interference.

He was treated as inpatient for a period of 12 days at St. John''s Hospital, Bangalore and continued his treatment as an out patient for some more days. Considering the same, Rs. 15,000/- awarded by the Tribunal towards ''incidental expenses'' such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.

Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs. 35,000/- is awarded towards ''loss of amenities'' as against Rs. 50,000/- awarded by the Tribunal.

The claimant claims to have been working as a Supervisor in Variety Granites and Trade Link and earning a sum of Rs. 10,000/- per month. He has produced Salary Certificate at Ex. P-6. Neither the author of salary certificate nor the owner of the said granite company is examined. Therefore, considering his age as 40 years, year of accident as 2009 and avocation as a daily wager, his income assessed by the Tribunal at Rs. 5,000/- per month is just and proper. The nature of injuries suggest that he must have been under rest and treatment for a period of 6 months and therefore a sum of Rs. 30,000/- is awarded towards ''loss of income during laid up period'' as against Rs. 15,000/- awarded by the Tribunal.

His income is rightly assessed by the Tribunal at Rs. 5,000/- per month, Multiplier applicable to his age group is 15. Regarding disability, the learned counsel for the KSRTC submits that PW-4 who has stated claimant has suffered the disability at 21% to the right lower limb is not the doctor who treated the claimant. Whereas, the learned counsel for the claimant submits that PW-4 has stated the claimant has suffered Permanent Disability of 21% on account of sustaining fracture of both bones of right leg and the Tribunal is not justified in considering it at 7% to the whole body.

The fact that the claimant has sustained Type-II open fracture of both bones of right leg and tibial avulsion is not in dispute. Considering the same, the functional disability can be easily taken at 12%. So, the loss of future income would work out to Rs. 90,000/-(Rs. 5,000x10/100x12x15) and it is awarded as against Rs. 63,000/- awarded by the Tribunal.

As Rs. 20,000/- awarded by the Tribunal towards Future medical Expenses is as per the evidence of the doctor, it does not require interference.

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

"The difference would be the additional compensation of Rs. 12,000/-.

IN M.F.A. NO. 9042/2011

MFA No. 9042/2011 is connected with MFA No. 5996/2011 have arisen out of MVC No. 6040/2009. The claimant in this case is one Ramakrishna, aged about 29 years.

As per Wound Certificate Ex. P-9, the claimant has sustained the following injuries:

"(1) Type-II open fracture of both bones middle 1/3rd right leg

(2) Fracture base of 5th metacarpal right hand."

The injuries sustained by the claimant are corroborated by oral evidence of claimant and the doctors who were examined as PW-2, PW-3 and PW-4 respectively. PW-3 doctor was examined for a limited purpose of producing medical records relating to the treatment given to the claimant. PW-4 Dr. Varghese has stated that the claimant has suffered the permanent disability of 25%. Considering the nature of injuries sustained by the claimant, a sum of Rs. 50,000/- is awarded towards Tain and Suffering'' as against Rs. 70,000/- awarded by the Tribunal.

As Rs. 85,000/- awarded by the Tribunal towards medical expenses is as per medical bills and prescriptions produced by the claimants, the same is just and proper and there is no scope for interference.

He was treated as inpatient for a period of 32 days at St. John''s Hospital, Bangalore and continued his treatment as an out patient for some more days. Considering the same, Rs. 30,000/- awarded by the Tribunal towards ''incidental expenses'' such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.

The claimant claims to have been working as a Rock Driller in Variety Granites and Trade Link and earning a sum of Rs. 6,000/- per month. He has produced Salary Certificate at Ex. P-30. Neither the author of salary certificate nor the owner of the said granite company is examined. Therefore, considering his age as 29 years, year of accident as 2009 and avocation as a daily wager, his income is assessed at Rs. 5,000/- as against Rs. 4,000/- assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 6 months and therefore a sum of Rs. 30,000/- is awarded towards ''loss of income during laid up period'' as against Rs. 20,000/- awarded by the Tribunal.

Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs. 30,000/- is awarded towards ''loss of amenities'' as against Rs. 20,000/- awarded by the Tribunal.

As his income is rightly assessed by the Tribunal at Rs. 5,000/- per month, multiplier applicable to his age group is 17. Considering the nature of injuries sustained and permanent disability stated by the doctor at 25% to limb, the functional disability can be taken at 12% as against 9% taken by the Tribunal. So the loss of future income would work out to Rs. 1,22,400/- (Rs. 5000x12/100x12x17) and it is awarded as against Rs. 73,440/- awarded by the Tribunal.

As Rs. 20,000/- awarded by the Tribunal towards Future medical Expenses as per the evidence of the doctor, it does not require interference.

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

The difference would be the additional compensation of Rs. 18,960/-."

Accordingly, the appeals filed by the claimants are allowed in part and appeals filed by the KSRTC are dismissed. The claimants are entitled for an additional compensation mentioned against their cases with interest at 6% per annum from the date of claim petition till the date of realisation.

K.S.R.T.C. 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. The same is ordered to be released in favour of the claimants.

The amount in deposit is ordered to be transferred to the Tribunal for disbursement in favour of the claimants in terms of the Award of the Tribunal.

No order as to costs.