Karnataka High Court
Sri. Veeresh Channagowdara vs Mr. Hanumanthappa on 20 June, 2023
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NC: 2023:KHC:21349
MFA No. 1578 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 1578 OF 2017 (MV)
BETWEEN:
SRI VEERESH CHANNAGOWDARA,
S/O GURUBASAPPA,
AGED ABOUT 42 YEARS,
R/O: 3RD MAIN J.C.EXTENSION,
HARIHAR,
DAVANAGERE DISTRICT-577 002.
...APPELLANT
(BY SRI SURESHA.C, ADVOCATE
FOR SRI BHAT ARUN CHIDAMBAR, ADVOCATE)
AND:
1. MR. HANUMANTHAPPA,
S/O MALLAPPA,
Digitally signed
AGED ABOUT 38 YEARS,
by T S
NAGARATHNA DRIVER OF KSRTC BUS,
Location: High BEARING REG NO.KA.27/F 491,
Court of
Karnataka R/AT 3RD CROSS,
SHIVAJINAGAR,
HAVERI DISTRICT-581 110.
2. THE DIVISIONAL CONTROLLER,
KSRTC,
HAVERI DIVISION,
HAVERI DISTRICT-581 110.
3. DIRECTOR,
K.S.R.T.C,
SARIGE BHAVANA,
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NC: 2023:KHC:21349
MFA No. 1578 of 2017
K.H.ROAD,
BENGALURU-560 027.
...RESPONDENTS
(BY SRI K NAGARAJ, ADVOCATE FOR R2 & R3 THROUGH V/C;
NOTICE TO R1 IS D/W V/O DATED 21.11.2017)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.12.2016 PASSED IN MVC
NO.385/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER ADDITIONAL MACT, HARIHAR, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of dismissal of the claim petition in MVC No.385/2015 by learned Senior Civil Judge and Member, Additional MACT, Harihara, dated 9-12-2016. The petitioner is the appellant before this Court.
2. The petitioner contended before the Tribunal that on 22-2-2013 at about 11.30 a.m. while he was proceeding from Harihara to Davanagere, in KSRTC bus bearing No. KA.27.F.491 and it had stopped near the Telephone office at Davanagere and while the petitioner was getting down from the said bus, the conductor without -3- NC: 2023:KHC:21349 MFA No. 1578 of 2017 considering that the petitioner was alighting blew the whistle and therefore, the driver moved the bus resulting in fall of the petitioner from the bus and he sustained grievous injury to right hand, right elbow, right hip and other parts of the body. Immediately, he was taken to CG hospital, Davanagere, where he took treatment and spent `1,00,000/- for medical expenses. It was contended that the petitioner was earning `8,000/- per month by agriculture and due to the accidental injuries, he is not in a position to work as before. Therefore, he sought for adequate compensation from the respondents.
3. On issuance of notice, respondent Nos. 2 and 3 and respondent No.1 driver of the bus appeared before the Tribunal.
4. The respondent Nos. 2 and 3 filed objections to the petition contending that the claim made by petitioner is totally false and frivolous and there was no such negligence on the part of the driver of the bus. It was contended that the compensation claimed by the petitioner -4- NC: 2023:KHC:21349 MFA No. 1578 of 2017 is highly exorbitant, imaginary and untenable and the petitioner has sustained injuries due to his own negligence. It was contended that driver of the bus- respondent No.1 was an experienced driver and therefore, the petition deserves to be dismissed. Inter alia, it was also contended that the petitioner was not residing in the limits of MACT and his address is that of Ranebennur and therefore, adequate information has not been revealed by the petitioner and on this ground also the petition deserves to be dismissed.
5. Respondent Nos. 2 and 3 also contended that the petitioner had filed MVC 663/2013 before the MACT, Davanagere and the respondent No.1 has filed objections in the said petition and later the petitioner did not appear before the MACT, Davanagere and as such, it was dismissed on 25-7-2014 and hence, the petitioner had not disclosed the dismissal of the earlier petition andthe present petition is not maintainable.
6. Respondent No.1 adopted the written statement of respondent Nos. 2 and 3.
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NC: 2023:KHC:21349 MFA No. 1578 of 2017
7. Thereafter, the Tribunal framed appropriate issues regarding negligence as well as the quantum and the petitioner examined himself as PW1 and Exhibits P1 to P10 were marked in evidence. The Doctor who has assessed the disability has been examined as PW2. Respondent No.1 was examined as RW1.
8. After hearing both the sides, the Tribunal dismissed the said petition on the ground that the earlier petition filed by the petitioner in MVC NO.663/2012 was not disclosed by him and therefore, the second petition is not maintainable.
9. Now the petitioner is before this Court assailing the said judgment of the Tribunal.
10. On issuance of notice, respondent Nos. 2 and 3 KSRTC appeared before this Court through its counsel. Notice to respondent No.1 is dispensed with. The Tribunal records have been secured.
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11. The arguments by the learned counsel for the appellant and the learned counsel for respondents were heard and records have been perused.
12. Learned counsel appearing for he appellant/ petitioner contends that there is no such limitation which has been prescribed for filing the petition under Section 166 of MV Act and therefore, there is no bar for filing second petition. It is submitted that earlier petition in MVC No.663/2013 was dismissed for non prosecution and therefore, the remedy available to the petitioner was not decided on merits and as such a second petition which was filed before the same principal MACT, was maintainable. He contends that the finding given by the Tribunal regarding the maintainability is totally devoid of consideration on merits and the law applicable thereon. In support of his contentions, he has placed reliance on catena of decisions which are as below:
1. Jagadish Vs. rahul Bus Service & others (FAO 524/2007);-7-
NC: 2023:KHC:21349 MFA No. 1578 of 2017
2. Oriental Insurance Co.,Ltd., Vs. Shri Krishan Chand and others (FAO 186/2008);
3. New India Assurance Co.,LTd., Vs. Padma and another (AIR 2003 SC 4394;
4. Hussain Pasha Vs. Andhra State Road Transportation II (2007) ACC 454;
5. Erach Boman Khavar Vs. Tukaram Shridhar Bhat and another (2014 AIR SCW 61);
6. Nagappa Vs. Gurudayal Singh and another (AIR 2003 SC 674);
7. State of Haryana and another Vs. Jasbir Kaur and others (AIR 2003 SC 3696);
8. Ningamma and another Vs. United India Insurance Co.,Ltd., (2009 AIR SCW 4916);
9. Smt.Savita Vs. Bindar Singh and others (2014 SCW 2053);
10. New India Assurance Col.Ltd., Vs. Srinivasan (AIR 2000 SC 941);
11. Aravind Kumar Mishra Vs. New India Assurance Col.Ltd., (2010 AIR SCW 6085);
12. Ramachandrappa Vs. The Manager Royal Sundaram Alliance Insurance Company Limited (2011 AIR SCW 4787);
13. Kavita Vs. Deepak and others (2012 AIR SCW 4771);
14. Raj kumar Vs. Ajay Kumar and another (2011 SCC 343.
13. It is submitted that the decision in the case of Jagadish Vs. Rahul Bus Service and others, -8- NC: 2023:KHC:21349 MFA No. 1578 of 2017 rendered by Himachala Pradesh High Court in FAO 524/2007 chronicles the entire gamut of decisions applicable regarding the maintainability of second petition under Section 166 of MV Act. It is relevant to note that the said decision refers to the various other decisions including the provisions of order 9 of CPC.
14. A reading of the said judgment discloses that, it had considered the decisions in the case of Oriental Insurance Company Limited vs. Shri Krishanchand and others , New India Assurance Company Limited Vs. Padma and another.
15. The decision of the Apex Court shows that the Court should be untrammeled by the technicalities and reach the injured victim in order to achieve the goal of social legislation, the aim of which is to provide cheep, fast and speedy compensation in order to safeguard them from social evils. Later it has also considered the decision in the case of New India Assurance Company -9- NC: 2023:KHC:21349 MFA No. 1578 of 2017 Limited Vs. R Srinivasan, reported in AIR 2000 SC
941.
16. The sum and substance of the conclusion reached by the Court was that there is no bar either in the form of provisions of the Limitation Act or in other law and second petition under Section 166 of MV Act is maintainable. It is evident that the Tribunal do not mention as to on what ground there is a bar for the second petition under Section 166 of MV Act. It is also relevant to note that until and unless the claim of the petitioner is considered on merits, it cannot be said that the cause of action has extinguished. Moreover, in the entire scheme of M.V. Act, there is nothing which bars the second petition being filed. It is trite law that if the earlier claim petition has been considered on merits, the principles of res-judicata will be applicable. In the case on hand, there is absolutely no such material on record. On the other hand, the copy of the order passed in MVC No.663/2013 discloses that the petition was dismissed for non prosecution.
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17. The learned counsel appearing for the respondents would submit that such dismissal of the earlier petition was not disclosed by the petitioner. Of course, the petitioner was required to disclose the dismissal of the earlier petition in the second petition filed by him, but, that would not be sufficient enough to dismiss the second petition. No doubt, non disclosure of the dismissal of the earlier petition would call for a frown by the Court, but it would not be sufficient enough to throw the petitioner out of Court. If we do so, the same would be contrary to the pith and substance of the M.V.Act itself which treats the awarding of the compensation as one of the prime object of social welfare legislation. Therefore, this Court is of the view that in the absence of any bar, the second petition was maintainable. Moreover, the earlier petition was also filed before the same MACT, Davanagere and it was transferred to Additional MACT Davanagere. The second petition i.e. present one is also filed at Principal MACT, Davanagere and it was transferred to Additional MACT, Harihara. Under these circumstances,
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NC: 2023:KHC:21349 MFA No. 1578 of 2017 the dismissal of the petition by the Tribunal is not sustainable under law and as such, the dismissal has to be set aside.
18. It is relevant to note that the Tribunal after having framed an issue regarding the quantum of the compensation was duty bound to answer it. However, the Tribunal finding that the petition was not maintainable, did not venture into the determination of the compensation entitled by the petitioner. It is trite law that when issues were framed by any judicial authority, those issues are to be answered, nevertheless the petition is dismissed on one of the issue. Therefore, the Tribunal was also in error in not considering the issues concerning the quantum of the compensation.
19. Learned counsel appearing for the respondents submit that the matter may be remanded to the Tribunal to consider and determine the compensation. It is relevant to note that when the parties had led the evidence on the issues which have been framed by the
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NC: 2023:KHC:21349 MFA No. 1578 of 2017 Tribunal and when the evidence is available on record, this Court being the Court of the First Appeal has ample powers to appreciate the evidence. The provisions of order 41 of CPC are applicable to Order 43 of CPC for miscellaneous appeals also and there cannot be any issue that this Court is also empowered to consider the evidence on record. There cannot be any fetters on this Court to consider and appreciate the evidence on record. In that view of the matter, there is no necessity of remanding the matter to the Tribunal and direct it to assess the compensation.
20. The petitioner contends that he had suffered fracture of distal radius of the right wrist and fracture of syneris pubic rami of right hip and apart from that, he had multiple abrasions over the right elbow. The discharge summary produced at Ex.P8 discloses that he was inpatient from 22-1-2013 and 22-2-2012. The treatment was conservative in nature and there was no such surgeries etc. which were done on him.
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21. PW2 has assessed the disability of the petitioner and has issued Ex.P10-Disability Certificate. It is curious to note that PW2 do not assess the disability of the right wrist and the disability to the hip joint separately. After noting down the difficulties faced by the petitioner and the limitation of the reduction of the movements of the joint, he comes to the conclusion that there is permanent disability of 35%. Therefore, it is evident that the assessment of disability by PW2 not being in reference to the limb which had sustained fracture injury, is to be termed as inadequate. The petitioner contends that he was an agriculturist by profession and considering the injuries to the right wrist, it can be safely be said that there is some disability. On perusal of the certificate issued by PW2 as per Ex.P10 and the deposition of PW2, this Court is of the view that there is a disability to the extent of about 7%. The disability appears to be 35% so far as limitations are concerned, but, the disability on account of the fracture of pubic rami will not be causing much difficulty. This Court has also noted that in the
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NC: 2023:KHC:21349 MFA No. 1578 of 2017 cross- examination of PW2, he says that there is whole body disability of 2%. His assessment of the whole body disability may be true to the extent of the physical disability, but it is not about the functional disability.
22. So far as the income of the petitioner is concerned, there is absolutely no material on record and therefore, the guidelines issued by the KSLSA for settlement of the disputes before the Lok Adalat is to be looked into. In umpteen number of decisions, this Court has held that the guidelines of KSLSA are in general conformity with the wages fixed under the Minimum Wages Act and therefore, the notional income is taken at `8,000/- per month. Therefore, the loss of income due to disability is calculated as: `8,000 x 12 x 15 x 7%=1,00,800/- by adopting the multiplier of 15 for the age of 40 years as per the medical records.
23. The nature of the injuries suggest that the petitioner had sustained the fracture, but the nature of the treatment was conservative in nature and there were no
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NC: 2023:KHC:21349 MFA No. 1578 of 2017 surgeries done and therefore, the petitioner was unable to resume his work atleast for a period of two months. Hence, a sum of `16,000/- is awarded under this head.
24. The petitioner has produced medical bills worth `10,602/- as per Ex.P9.Hence, he is entitled for the same.
25. As noted supra, the petitioner was inpatient from 22-2-2013 to 1-3-2015 i.e. for 7 days. Therefore, a sum of `10,000/- is awarded to him under the head of attendant charges conveyance, nourishment etc.
26. The injuries suffered by the petitioner show that two of them are grievous in nature and there were two abrasions. Therefore, a sum of `45,000/- is awarded to him under the head of pain and sufferings.
27. The petitioner is a coolie, the injuries suffered by him will affect his comfort for the rest of his life. Hence, a sum of `20,000/- is awarded to him under the head of loss of amenities in life.
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28. In view of the above discussion, the petitioner is entitled for a compensation of `2,02,400/- under the different heads as below:
Pain and sufferings ` 45,000/- Medical expenses ` 10,602/- Attendant charges, conveyance and ` 10,000/- nourishment Loss of income during laid up period ` 16,000/- Loss of future earnings due to disability `1,00,800/- Loss of amenities in life ` 20,000/- Total `2,02,402/- Rounded off to `2,02,400/-
29. The 2nd respondent-KSRTC being the owner of the bus is liable to pay the compensation of `2,02,400/- to the petitioner together with interest at 6% p.a. from the date of petition till its realization.
30. Hence, the following:
ORDER The appeal is allowed in part. The impugned judgment and award of the Tribunal dismissing the claim petition is set aside.
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NC: 2023:KHC:21349 MFA No. 1578 of 2017 The claim petition is allowed holding that the appellant/petitioner is entitled for a compensation of `2,02,400/- together with interest at 6% p.a. from the date of petition till its deposit before the Tribunal.
The respondent-KSRTC is directed to deposit the compensation amount within four weeks from the date of this order.
In case of deposit, 50% of the same shall be kept in Fixed Deposit in any Nationalized Bank for a period of 3 years and the remaining amount be released to the petitioner.
Learned counsel for respondent is permitted to file vakalath within four weeks.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 92