Karnataka High Court
The Managing Director vs Smt Puttalakshmi @ Puttalakshmamma on 10 January, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.7170 OF 2011(MV)
A/W M.F.A.CROB NO.114/2012
C/W MISCELLANEOUS FIRST APPEAL NO.7168 OF 2011(MV)
A/W M.F.A.CROB NO.116/2012
C/W MISCELLANEOUS FIRST APPEAL NO.7169 OF 2011(MV)
A/W M.F.A.CROB NO.115/2012
M.F.A.NO.7170/2011
BETWEEN:
The Managing Director,
KSRTC, Bangalore
Owner & Internal Insurer
of the bus No.KA-09-F-2721
Now through Chief Law Officer,
KSRTC, Central Office,
K.H.Road,
BANGALORE. .. APPELLANT.
(By Sri.K.Nagaraja, Adv.)
AND:
1. Smt.Puttalakshmi @ Puttalakshmamma,
W/o Late Chikkadasappa,
Aged about 49 years,
R/at No.1014, 14th Main,
4th Stage, T.K.Layout,
MYSORE - 570 001.
2
2. Sri.B.Puttabasavaiah,
S/o Sri Late Basavegowda,
Aged about 41 Years,
R/at Thenkanahalli Village,
Malavalli Taluk,
MYSORE DISTRICT - 571 430. .. RESPONDENTS.
(By Sri.K.C.Pradeep,
Adv. for R-1,
R-2 - Notice Dispensed with)
*-*-*-*-*-*-*
This appeal is filed under Section 173(1) of Motor
Vehicles Act, against the Judgment and Award dated
23.12.2010 passed in MVC No.165/2007 on the file of the
Judge, Small Causes Court, MACT, Mysore, awarding a
compensation of Rs.1,73,600/-.
M.F.A.CROB NO.114/2012
BETWEEN:
Smt.Puttalakshmi @ Puttalakshmamma,
W/o Late Chikkadasappa,
Aged about 49 years,
R/at No.1014, 14th Main,
4th Stage, T.K.Layout,
MYSORE - 570 001. ...CROSS OBJECTOR.
(By Sri.Pratheep.K.C, Adv.)
AND:
1. Sri.B.Puttabasavaiah,
S/o Sri Late Basavegowda,
Aged about 41 Years,
R/at Thenkanahalli Village,
Malavalli Taluk,
MYSORE DISTRICT - 571 430.
3
2. The Managing Director,
KSRTC, Bangalore,
Owner and internal insurer. .. RESPONDENTS.
MFA CROB.No.114/2012 is filed under Order 41, Rule 22(1)
of Code of Civil Procedure, against the Judgment and Award
dated 23.12.2010 passed in MVC No.165/2007 on the file of
the Judge, Small Causes Court, MACT, Mysore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
M.F.A.NO.7168/2011
BETWEEN:
The Managing Director,
KSRTC, Bangalore
Owner & Internal Insurer
of the bus No.KA-09-F-2721
Now through Chief Law Officer,
KSRTC, Central Office,
K.H.Road,
BANGALORE. .. APPELLANT.
(By Sri.K.Nagaraja, Adv.)
AND:
1. Smt.Puttalakshmi @ Puttalakshmamma,
W/o Late Chikkadasappa,
Aged about 49 years.
2. Sri.C.Srinivasa,
S/o Late Chikkadasappa,
Aged about 29 years.
4
3. Smt.Gnaneshwari.C
D/o Late Chikkadasappa,
W/o Yogesh Babu,
Aged about 27 Years.
All R/at No.1014, 14th Main,
4th Stage, T.K.Layout,
MYSORE - 570 001.
4. Sri.B.Puttabasavaiah,
S/o Late Basavegowda,
Aged about 41 Years,
R/at Thenkanahalli Village,
Malavalli Taluk,
MYSORE DISTRICT. ... RESPONDENTS.
(By Sri.Pratheep.K.C,
Adv. for R-1 to R-3,
R-4 - Notice dispensed with)
*-*-*-*-*-*-*-*
This appeal is filed under Section 173(1) of Motor
Vehicles Act, against the Judgment and Award dated
23.12.2010 passed in MVC No.184/2007 on the file of the
Judge, Small Causes Court, MACT, Mysore, awarding a
compensation of Rs.13,08,044/-.
M.F.A.CROB NO.116/2012:
BETWEEN:
1. Smt.Puttalakshmi @ Puttalakshmamma,
W/o Late Chikkadasappa,
Aged about 45 years.
2. Sri.C.Srinivasa,
S/o Late Chikkadasappa,
Aged about 25 years.
5
3. Smt.Gnaneshwari,
D/o Late Chikkadasappa,
W/o Yogesh Babu,
Aged about 27 Years.
R/at No.1014, 14th Main,
4th Stage, T.K.Layout,
MYSORE. ...CROSS OBJECTORS
(By Sri.Pratheep K.C, Adv.)
AND:
1. B.Puttabasavaiah,
S/o Sri Late Basavegowda,
Aged about 37 years,
R/at Thenkanahalli Village,
Malavalli Taluk,
Mandya District,
MYSORE DISTRICT - 571 430.
2. The Managing Director,
KSRTC, Bangalore,
Owner and Internal insurer. .. RESPONDENTS.
*-*-*-*-*-*-*
MFA CROB.No.116/2012 is filed under Order 41, Rule 22(1)
of Code of Civil Procedure, against the Judgment and Award
dated 23.12.2010 passed in MVC No.184/2007 on the file of
the Judge, Small Causes Court, MACT, Mysore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
6
M.F.A.NO.7169/2011
BETWEEN:
The Managing Director,
KSRTC, Bangalore
Owner & Internal Insurer
of the bus no.KA-09-F-2721
Now through Chief
Law Officer, KSRTC,
Central Office, K.H.Road,
BANGALORE. .. APPELLANT.
(By Sri.K.Nagaraja, Adv.)
AND:
1. Smt.Gnaneshwari C.,
D/o Late Chikkadasappa,
W/o Yogesh Babu,
Aged about 27 years,
R/at No.104, 14th Main,
4th Stage, T.K.Layout,
MYSORE.
2. Sri.B.Puttabasavaiah,
S/o Sri Late Basavegowda,
Aged about 41 years,
R/at Thenkanahalli Village,
Malavalli Taluk,
MYSORE DISTRICT. ...RESPONDENTS.
(By Sri.Pratheep K.C,
Adv. for R-1,
R-2 - Notice dispensed with)
*-*-*-*-*-*-*-*
This appeal is filed under Section 173(1) of Motor
Vehicles Act, against the Judgment and Award dated
23.12.2010 passed in MVC No.181/2007 on the file of the
7
Judge, Small Causes Court, MACT, Mysore, awarding a
compensation of Rs.49,900/-.
M.F.A.CROB NO.115/2012
BETWEEN:
Smt.Gnaneshwari,
D/o Late Chikkadasappa,
W/o Yogesh Babu,
Aged about 27 years,
R/at No.1014, 14th Main,
4th Stage, T.K.Layout,
MYSORE. ...CROSS OBJECTOR.
(By Sri.Pratheep K.C, Adv.)
AND:
1. B.Puttabasavaiah,
S/o Late Basavegowda,
Aged about 37 years,
R/at Thenkana Halli Village,
Malavalli Taluk,
MANDYA DISTRICT,
KSRTC Bus Driver.
2. The Managing Director,
KSRTC, Bangalore,
Owner and internal insurer. ...RESPONDENTS.
*-*-*-*-*-*-*-*-*
MFA CROB.No.115/2012 is filed under Order 41, Rule 22(1)
of Code of Civil Procedure, against the Judgment and Award
dated 23.12.2010 passed in MVC No.181/2007 on the file of
the Judge, Small Causes Court, MACT, Mysore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
These MFAs and MFA.CROBs., coming on for Admission
this day, the Court delivered the following:
8
JUDGMENT
These three appeals and Cross Objections are arising out of common Judgment dated 23.12.2010 passed in MVC Nos.165/2007, 184/2007 and 181/2007 on the file of the MACT, Mysore.
2. These three appeals are filed by the common second respondent - KSRTC, challenging quantum of compensation awarded by the Tribunal and as well as liability saddled on the Corporation to pay the entire extent of compensation awarded to claimants. In all these appeals, an application is filed in Misc.Cvl.Nos.16936/2011, 16942/2011 and I.A.3/2011 seeking to implead owner and insurer of the vehicle in which the claimants and deceased were travelling at the relevant time of accident. The said applications are taken up for consideration along with main appeals and Cross Objections.
9
3. Brief facts leading to these appeals and Cross Objections are as under:
Claimant in MVC No.165/2007, Smt.Puttalakshmi and claimant in MVC No.181/2007, Smt.Gnaneshwari are respectively the mother and daughter and they were travelling along with husband of Smt.Puttalakshmi and father of Smt.Gnaneshwari, namely Chikkadasappa in Maruti Car bearing No.KA-04/MA-8617 on 13.08.2005. On that day at about 7.30 p.m., the said car met with an accident involving bus bearing No.KA-09/F-27 belonging to appellant herein.
4. In the said accident, among the four inmates, driver of the car did not suffer any injury, he escaped unhurt. So far as the inmate Chikkadasappa, who was sitting in the front left side of the car, succumbed to injuries in the said accident. His widow and daughter who were in the back seat, suffered some injury. So far as wife of Chikkadasappa, namely Smt.Puttalakshmi is concerned, she has suffered fracture of left leg, wrongly referred to femur in the hospital 10 records. However the further description in the hospital records clearly disclose that the treatment given to the said fracture in the leg is totally united. So far as Smt.Gnaneshwari is concerned, she has suffered three abrasion in the said accident. In the said accident, three claim petitions came to be filed, one by Smt.Puttalakshmi in her individual capacity for the injuries suffered in the accident, which is numbered as MVC No.165/2007. So far as claim petition filed by her daughter is in MVC No.181/2007 and both of them along with one C.Srinivas, S/o Chikkadasappa filed another claim petition, which is in MVC No.184/2007, which was filed seeking compensation for the death of Chikkadasappa in the said accident.
5. The oral and documentary evidence available on record disclose that the accident has taken place on Bangalore - Mysore Highway, 6 k.m., before Maddur Village and the manner in which the accident took place is that the Maruti Car in which claimants are traveling went and hit the rear 11 side of the bus, whereas the averments in the claim petition is to the effect that the driver of the bus applied sudden brake in the middle of the road without showing any indication to stop the said bus resulting in Maruti Car, which was following behind it could not be stopped by its driver. Hence the same went and hit bus resulting in the death of Chikkadasappa and injuries to his wife and children.
6. In all the appeal memo filed by the appellant, it is stated that the Tribunal has not taken into consideration the statement of objection filed by the second respondent before the Tribunal regarding contributory negligence on the part of car while awarding compensation. The Tribunal has not taken into consideration contributory negligence of the driver of the car and no issues were framed in that behalf and compensation is awarded as if bus belonging to appellant - Corporation has caused the accident.
7. Heard the counsel for appellant in all three appeals and also the respondents, who are claimants in Cross Objections 12 and also the impleading applicants for whom notice is served on the aforesaid three miscellaneous applications. Perused the Judgment impugned and also reasons stated therein in appreciating the issues framed thereunder.
8. On going through the same, it is seen that the accident is not in dispute involving Maruti Car in which claimants and deceased Chikkadasappa were travelling and bus bearing No.KA-09/F-27 belonging to appellant herein. It is further not in dispute that the accident has taken in such a way that the car which was following the bus has gone and hit the same on its rear side resulting in death of Chikkadasappa. It is also not in dispute that the claimant, Smt.Puttalakshmi has suffered fracture of left leg and Smt.Gnaneshwari has suffered only abrasion injuries and Chikkadasappa has succumbed to the injuries caused in the aforesaid accident. Further it is not in dispute that the claimants in MVC No.184/2007 filed seeking compensation for the death of 13 Chikkadasappa is by the legal representative of deceased, who are entitled to seek compensation for his death.
9. In the proceedings before the Tribunal, claim petitions are clubbed together and common evidence is recorded. The first claimant, Smt.Puttalakshmi adduced evidence as P.W.1 in MVC No.165/2007 and also in MVC No.184/2007 in which she is one of the claimants. Similarly claimant in MVC No.181/2007, namely Smt.Gnaneshwari adduced evidence as P.W.2 in support of her claim in MVC No.181/2007 and also claim for the death of her father in MVC No.184/2007 and the doctors who are said to have treated P.Ws.1 and 2, are examined as P.Ws.3 to 5. In all claimants have produced 113 documents, out of which Exs.P-1 to P-5, P-12, P-14, P-15 and P-16 are police documents, rest of the documents are with reference to wound certificates of P.W.1, P.W.2, P.M. report of deceased Chikkadasappa and other documents relating to treatment provided to P.Ws.1 and 2. 14
10. The Tribunal on appreciation of oral and documentary evidence as available, proceeded to allow the claim petitions in MVC No.165/2007 holding that the injuries suffered by P.W.1, Smt.Puttalakshmi, i.e., fracture to left leg has caused sufficient discomfort to her and accordingly awarded compensation to her in a sum of Rs.1,73,600/- which is apportioned as under:
i) Pain and sufferings : Rs. 30,000-00
ii) Medical expenses : Rs. 72,200-00
iii) Loss of earning towards
permanent disability : Rs. 50,400-00
iv) Loss of income during
laid up period :
Rs. 6,000-00
-------------------
Rs.1,73,600-00
=============
which is challenged on the ground that the fracture suffered to left leg has healed completely as per evidence of P.W.5 and that there is no disability for her to move around. In that view of the matter, it is stated that the finding of the Tribunal that there is loss of earning towards permanent disability is incorrect and compensation awarded on that ground is erroneous.
15
11. Heard the counsel for appellant and as well as Cross Objectors in MFA CROB Nos.114/2012 to 116/2012. On going through the Judgment impugned, it is seen that the finding of the Tribunal so far as compensation awarded under all heads appears to be just and proper except in case of compensation awarded for loss of income due to permanent disability in the light of evidence of P.W.5 that when the fracture suffered by claimant is completely united, question of there being any disability does not arise. In that view of the matter, claimant could be entitled to loss of amenities and not for compensation under the head future loss of income due to disability. Accordingly the compensation awarded by the Tribunal in MVC No.165/2007 is required to be modified by reducing the compensation awarded under the head loss of earning towards permanent disability at Rs.50,400/-. Only a sum of Rs.25,000/- is awarded towards loss of amenities.
12. In the result, appeal filed in MFA No.7170/2011 challenging the Judgment and Award in MVC No.165/2007 is 16 required to be allowed in part in reducing the compensation awarded from Rs.1,73,600/- to Rs.1,48,600/-. In view of the appeal in MFA No.7170/2011 being allowed in part, Cross Objection filed by Smt.Puttalakshmi in MFA CROB NO.114/2012 does not survive for consideration and the same is dismissed.
13. Now coming to appeal filed by Smt.Jnaneshwari in MFA No.7169/2011, it is seen that the claimant Smt.Jnaneshwari has suffered three injuries, i.e., lacerated wound of left ankle measuring to an extent of 5" x 3" and contusion of right leg and other injuries. In that view of the matter, compensation awarded by the Tribunal in a sum of Rs.49,900/-, which is apportioned as under:
i) Pain and sufferings : Rs.15,000-00
ii) Medical expenses : Rs.14,900-00
iii) Disfigurement : Rs.15,000-00
----------------
Rs.44,900-00
===========
17
appears to be just and proper. In that view of the matter,
question of reducing the same does not arise. Accordingly
appeal filed in MFA No.7169/2011 impugning Judgment and Award passed in MVC No.181/2007 is dismissed. Since the compensation awarded to Smt.Jnaneshwari in MVC No.181/2007 held to be just and proper, Cross Objection filed by her in MFA CROB No.115/2012 does not arise for consideration. Accordingly the same is dismissed.
14. Now coming to third appeal, i.e., MFA No.7168/2011 filed by second respondent before the Tribunal impugning the Judgment and Award passed in MVC No.184/2007 is concerned, the case of the appellant is that the deceased Chikkadasappa, who was working as Chief Executive Officer in Town Municipality of Kengeri. At the relevant time of accident, he was drawing a salary of Rs.11,500/-, he was aged about 51 years. In that view of the matter, the Tribunal taking 25% income of deceased towards his future prospect in his employment is erroneous for the reason that the same 18 would be applicable pursuant to the Judgment in Sarla Verma's case only in the matter where claimant is aged below 50 years, which ratio is subsequently reiterated in Santoshdevi's case. Since the deceased was more than 51 years as on the date of accident, the said ratio is erroneously applied to the case on hand resulting in awarding excessive compensation to claimant.
15. On going through the Judgment impugned carefully with reference to the aforesaid Judgment, this Court is convinced that there is substance in the submission made by the counsel appearing for appellant. Though there was an attempt on the part of respondents - claimants, who are Cross Objectors in MFA CROB No.116/2012 to substantiate the same. Further this Court is not inclined to accept the same since there is deviation from the accepted legal principle in considering future prospect to deceased Chikkdasappa, the same is required to be excluded and compensation is required to be re assessed based on the factual position. Accordingly if 19 the income of Chikkadasappa as stated in salary certificate is taken at Rs.11,540/- and if profession tax of Rs.150/- is deducted, the salary that was available as on the date of death of Chikkadasappa is Rs.11,390/-, out of which 1/3rd is deducted, what is available would be Rs.7,594/- which is rounded off to Rs.7,600/-. Since the deceased was aged about 52 years, relevant multiplier being 11. If that is applied, the compensation to be awarded is Rs.7,600 x 12 x 11 = Rs.10,03,200/- for which another sum of Rs.40,000/- is added under conventional head. With this claimants in MVC No.184/2007 would be entitled to Rs.10,43,200/- as against Rs.13,08,044/- awarded by the Tribunal. Accordingly the appeal filed by appellant - KSRTC is allowed in part. Compensation awarded is reduced to Rs.10,43,200/-.
16. Now coming to three applications which are filed seeking impleading of owner and insurer of car, it is submitted by the counsel appearing for claimants that though an opportunity was available to second respondent to urge all 20 these things in their statement of objection and in the absence of any issue being framed, they had ample scope to seek re-casting of issue and also right to file the very same application before the Tribunal. When once they have failed to exercise the same before the Tribunal, it is not open for them to urge these grounds before this Court, thereby delaying the process of disposal of claim petition and the same line of argument is submitted by the learned counsel appearing for opponent in the impleading application filed by appellant herein, who are owner and insurer of the car in which claimants and deceased are travelling. On appreciating the arguments of appellant and as well as Cross Objectors and opponent in the said application, this Court is of the considered opinion that there is an error on the part of appellant in not taking appropriate steps at the first available opportunity before the Tribunal. Any effort made by them in bringing the impleading applicants at this stage will dilute finding of the Tribunal so far as finding given in the Tribunal in awarding compensation and fixing the liability on the 21 appellant, which cannot be entertained at this length of time. Hence the three applications are dismissed.
17. In view of appeals filed by second respondent - Corporation and Cross Objectors being disposed of in the aforesaid terms, appellant - Corporation is required to deposit the modified compensation in MVC Nos.165/2007 and 184/2007 within four weeks from the date of receipt of certified copy of Judgment passed in these cases and so far as compensation payable in MVC No.181/2007 is concerned, the same having been remained undisturbed, also should be deposited within four weeks from the date of receipt of certified copy of Judgment.
18. So far as compensation awarded in MVC No.184/2007, from out of the revised compensation of Rs.10,43,200/-, a sum of Rs.6,43,200/- is ordered to be paid to Smt.Puttalakshmi, W/o deceased Chikkadasappa with proportionate interest and out of balance amount of Rs.4,00,000/-, Rs.2,00,000/- with proportionate interest 22 shall be paid to C.Srinivas and Rs.2,00,000/- with proportionate interest shall be paid to Smt.Gnaneshwari and out of the said amount, 80% is ordered to be deposited in any nationalized bank for a period of ten years in case of Smt.Puttalakshmi and five years in case of Smt.Jnaneshwari and C.Srinivas with right to receive interest periodically. Balance 20% with proportionate interest to be released to meet the litigation expenses and also their day today expenses.
Accordingly all the three appeals and cross objections are disposed of in the aforesaid terms. In view of appeals filed by Corporation being allowed, amount in deposit is ordered to be sent to Tribunal for disbursement of the same to claimant.
Sd/-
JUDGE AGV.