Karnataka High Court
The Managing Director vs Shubhashini. B. A on 20 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.8289 OF 2018(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.8206 OF 2018(MV-I)
IN MISCELLANEOUS FIRST APPEAL NO.8289 OF 2018
BETWEEN:
Shubhashini B.A.,
D/o. Adinarayanappa,
Aged about 20 years,
R/o. No.6, 8th A Cross,
Vinayaka Layout,
Nayandahally,
Bangalore.5600 039.
.. Appellant
(By Sri. Hanumanthappa, A., Advocate )
AND:
The Managing Director,
KSRTC Depot,
Bangalore Central office,
K.H. Road, Shanthinagar,
Bangalore - 560 027.
.. Respondent
(By Sri.F.S. Dabali, Advocate)
****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicle Act, 1988, praying to call for the
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
2
records and enhance the compensation amount awarded to the
cross appellant by awarding further compensation amount of
`18,50,608/- in addition to the compensation amount of
`11,49,392/- and interest at the rate of 12% as against the 6%
p.a. awarded dated 28-06-2018 passed in MVC No.4478/2017
by the Court of XXI Additional Small Causes Judge and M.A.C.T.
at Bangalore (SCCH-23), in the interest of justice and equity.
IN MISCELLANEOUS FIRST APPEAL NO.8206 OF 2018
BETWEEN:
The Managing Director,
K.S.R.T.C. Depot,
Bangalore Central Office,
K.H. Road, Shanthinagar,
Bengaluru - 560 027.
(RC Owner of KSRTC Bus
bearing No.KA-07-F-1660)
represented by its Chief Law Officer.
.. Appellant
(By Sri.F.S. Dabali, Advocate)
AND:
Shubhashini B.A.,
D/o. Adinarayanappa,
Aged about 20 years,
Residing at No.6,
8th 'A' Cross,
Vinayaka Layout,
Nayandahally,
Bangalore -560 039.
.. Respondent
(By Sri. Hanumanthappa, A., Advocate )
****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicle Act, 1988, praying to call for the
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
3
records and modify/set aside the judgment and award in
M.V.C.No.4478/2017 dated 28-06-2018 on the file of the Court
of XXI Additional Small Causes Judge and the Motor Accident
Claims Tribunal (SCCH-23) at Bengaluru in respect of fixing the
entire liability on the appellant and also the quantum of award
amount, which is at higher side, in the interest of justice and
equity.
These Miscellaneous First Appeals having been heard
through Physical Hearing/Video Conferencing Hearing and
reserved for judgment on 09-01-2024, coming on for
pronouncement this day, Dr.H.B.Prabhakara Sastry J.
delivered the following:
COMMON JUDGMENT
The claimant before the Court of the XXI Additional
Small Causes Judge and the Motor Accident Claims
Tribunal (SCCH-23) at Bengaluru (hereinafter for brevity
referred to as "the Tribunal") seeking enhancement of
compensation awarded to her in a road traffic accident
injury case in M.V.C.No.4478/2017 vide judgment dated
28-06-2018 passed by the Tribunal, has preferred
M.F.A.No.8289/2018.
The sole respondent in the said M.V.C.No.4478/2017
has filed M.F.A.No.8206/2018, seeking setting aside or
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
4
modification of the very same impugned judgment and
award passed by the Tribunal in M.V.C.No.4478/2017
dated 28-06-2018 in respect of fixing the entire liability on
the appellant and also challenging the quantum of
compensation awarded, on the ground that the same is on
the higher side.
2. The summary of the case of the claimant before
the Tribunal in her claim petition is that, on the date
11-03-2017 at about 1:00 p.m., while she was crossing
the road near K.R. Circle, to go to the Bus stand which
was opposite to S.J.P. College, at that time, the driver of
a KSRTC Bus bearing registration No.KA-07/F-1660
belonging to the respondent KSRTC being driven in a rash
and negligent manner and coming from Maharani's College
side towards K.R. Circle, dashed against the claimant,
resulting in a road traffic accident. Due to the said road
traffic accident, the claimant sustained multiple grievous
injuries all over the body including her right leg.
Immediately she was shifted to St. Martha's Hospital,
where she was treated as an in-patient from the date
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
5
11-03-2017 to 24-04-2017 and also underwent several
tests and surgeries. In spite of the best and costly
medical treatment, the injuries sustained by the claimant
could not be properly cured.
The claimant has also stated that, as on the date of
the accident, she was 19 years old girl, studying IV
Semester in Diploma Course. Due to the grievous injuries
sustained by her in the road traffic accident, she could not
concentrate on her studies and could not able to attend to
her 4th Semester Examination, as such, she lost one
academic year and got re-admitted after paying the fee.
The injuries sustained by her in the accident has resulted
in her permanent disability. She was unable to stand and
walk for a long distance. She was also unable to bend her
right leg. She has lost her future prospects.
With this, the claimant has claimed a sum of
`30,00,000/- as compensation from the respondent -
KSRTC, arraigning it as the owner-cum-insurer of the
alleged offending Bus bearing registration No.KA-07/
F-1660.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
6
3. In response to the notice, the respondent -
KSRTC in the claim petition, appearing through its
counsel, has filed its Statement of Objections, contending
that the claim petition was filed on imaginary grounds. The
compensation claimed was excessive, exorbitant and
arbitrary. The respondent KSRTC seriously disputed its
liability by contending that the road traffic accident in
question has occurred due to the negligence on the part of
the claimant. When the KSRTC Bus was moving slowly
and carefully, at that time, the claimant, in her attempt to
cross the road, in a negligent manner, without observing
the flow of traffic, came in contact with the KSRTC Bus.
The claimant did not use the existing sub-way to cross the
road. The respondent KSRTC also denied that the claimant
sustained the injuries and permanent disability. It also
denied the claimant's contention of she incurring huge
medical expenses and losing her future prospects.
4. Before the Tribunal, the claimant got herself
examined as PW-1 and got examined one Sri. Nithesh as
PW-2 and one more witness Dr. R. Shashikanth as
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
7
PW-3 and got marked documents from Exs.P-1 to P-36.
On behalf of the respondent KSRTC, only one witness was
examined as RW-1 and no documents were got marked as
exhibits.
5. After analysing the evidence and the materials
placed before it, the Tribunal by its judgment and award
dated 28-06-2018, has awarded the compensation under
the following heads with the sum shown against them:
Sl.
Particulars Amount in `
No.
1 Pain and sufferings 1,00,000-00
2 Loss of future earning 4,31,892-00
3 Loss of amenities of life 75,000-00
4 Reduction of marriage prospects 1,00,000-00
5 Loss of one academic year 50,000-00
6 Medical expenses 2,43,500-00
7 Conveyance 54,000-00
8 Loss of income of the parents 25,000-00
during laid up period
9 Future medical expenses 75,000-00
Total 11,54,392-00
Deducting interim compensation 5,000-00
amount already paid by respondent
Total 11,49,392-00
6. The Tribunal awarded a compensation of a sum of
`11,54,392/- with interest at `6% per annum thereupon
from the date of petition till the date of deposit of the
amount in the Tribunal, holding the owner cum Insurer of
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
8
the offending KSRTC Bus as liable to pay the said
compensation and directed the KSRTC to deposit the
awarded amount.
7. Being aggrieved by the quantum of compensation
awarded by the Tribunal, in its judgment and award dated
28-06-2018, the claimant has preferred M.F.A.No.8289/
2018, seeking enhancement of compensation under all the
heads, on the ground that the same is inadequate. The
contesting respondent in the said appeal who was the sole
respondent before the Tribunal, has preferred M.F.A.No.
8206/2018, seeking to modify/set aside the impugned
judgment passed by the Tribunal in respect of fixing the
entire liability on the KSRTC and also to reduce the
quantum of compensation, on the ground that the same is
on the higher side.
8. The claimant (appellant herein), represented by
her learned counsel and respondent - KSRTC, represented
by its learned counsel are appearing physically in the
Court.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
9
9. Records are called for from the Tribunal and the
same are placed before the Court.
10. Heard the arguments from both side. Perused
the materials placed before this Court including the
memorandum of appeal in both the appeals, impugned
judgment and also the records of the Tribunal.
11. For the sake of convenience, the claimant in the
claim petition, who is the appellant in M.F.A.No.8289/2018
and also the respondent in the connected
M.F.A.No.8206/2018 is henceforth referred to as "the
claimant" and the respondent in the claim petition who is
the appellant in M.F.A.No.8206/2018 and the sole
respondent in the connected M.F.A.No.8289/2018 is
henceforth referred to as "the KSRTC".
12. Learned counsel for the claimant in his brief
argument submitted that, the evidence led by the
claimant's side proves that the road traffic accident in
question is caused solely due to the rash and negligent
driving of the Bus belonging to KSRTC, by its driver. It is
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
10
not in dispute that, as on the date of the accident, the
claimant who sustained injuries in the said road traffic
accident was pursuing her 4th Semester in her Diploma
Course. However, due to the injuries sustained by her,
she has lost her precious one academic year and also her
bright future. However, the Tribunal, without noticing
these aspects has taken her notional income only at
`15,000/- per month, which requires to be enhanced. He
further contended that the accident in question has
occurred solely due to the rash and negligent driving of
the offending KSRTC Bus by its driver.
13. Per contra, learned counsel for the KSRTC in his
argument submitted that, the KSRTC would not deny or
dispute the occurrence of the road traffic accident on the
date, time and place mentioned in the claim petition. It
also would not deny that, in the said road traffic accident,
the claimant sustained injuries and was hospitalised.
However, it strongly denied that the accident has occurred
solely due to the rash and negligent driving of the KSRTC
Bus by its driver.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
11
Learned counsel for the KSRTC further submitted
that, the very evidence led by the claimant and the
suggestion made in the cross-examination of RW-1 would
go to show that, the claimant has contributed considerably
for the occurrence of the road traffic accident, as such, the
Tribunal should have apportioned the negligence equally
between the claimant and the KSRTC.
Learned counsel further submitted that the quantum
of compensation awarded, particularly, the compensation
towards future medical expenses, is very much on the
higher side, as such, the appeal filed by the KSRTC
deserves to be allowed.
14. After hearing the learned counsels for the
parties, the points that arise for our consideration in these
appeals are:
[i] Whether the claimant proves that, a road
traffic accident occurred on the date 11-03-2017, at
about 1:00 p.m., on Sheshadri Road, opposite SJP
College, Bengaluru, involving a KSRTC Bus bearing
registration No.KA-07/F-1660, solely due to the rash
and negligent driving on the part of the driver of the
said Bus?
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
12
[ii] Whether the KSRTC proves that in the
road traffic accident that occurred on the date, time
and place mentioned at point No.(i) above, there
was contributory negligence on the part of the
claimant also?
[iii] Whether the claimant has proved that
she is entitled to compensation from the KSRTC, for
injuries sustained by her due to the road traffic
accident that occurred on the date, time and place
mentioned at point No.(i) above?
[iv] Whether the impugned judgment passed
by the Tribunal warrants any interference at the
hands of this Court?
15. The occurrence of the road traffic accident on
the date, time and place mentioned by the claimant in the
claim petition are not in dispute. Still, the evidence led
from the side of the claimant wherein the claimant got
herself examined as PW-1 and got examined one Nithesh
as an eye witness to the road traffic accident and the
documents produced and got marked by the claimant from
Exs.P-1 to P-5 would clearly go to show that, the road
traffic accident has occurred on the date, time and place
mentioned in the claim petition. More over, the KSRTC in
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
13
its Statement of Objections itself has admitted the
occurrence of the road traffic accident as alleged by the
claimant in the claim petition.
The KSRTC got examined one Sri. Amaresh as RW-1,
who is said to be the driver of the offending KSRTC Bus at
the time of the accident. Even the said witness also has
not denied the occurrence of the road traffic accident on
the date, time and place mentioned in the claim petition
involving the Bus bearing registration No.KA-07/F-1660,
however, he has contended that it was the claimant who
was negligent while crossing the road, as such, there is no
fault on his part in the occurrence of the road traffic
accident.
Thus, it stands established that the road traffic
accident has occurred on the date 11-03-2017 and at the
place and time mentioned in the claim petition involving
the claimant as a pedestrian and the KSRTC Bus bearing
registration No.KA-07/F-1660.
16. According to the claimant, the above said road
traffic accident has occurred solely due to the rash and
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
14
negligent driving of the offending KSRTC Bus bearing
registration No.KA-07/F-1660, by its driver. PW-1, in her
evidence has stated that, while she was attempting to
cross the road by walk, it was the said Bus being driven by
its driver in a rash and negligent manner came and dashed
to her, due to which, the road traffic accident in question
has occurred. In her support she has got produced and
marked a copy of the FIR, complaint, charge sheet, rough
sketch and the scene of offence panchanama drawn by the
Investigating Officer in the criminal case at Exs.P-1, P-2,
P-3, P-4 and P-5 respectively.
In her cross-examination, she has stated that a Bus
stop is located in front of her College, as such, in order to
go to Majestic, she has to catch the Bus from the opposite
side Bus stop. There was a median made of stone in the
middle of the road, the height of which was about 1 ½ feet
and with a width of about 2 feet. She admitted that there
is a sub-way situated nearby her College to go to her
College as well towards the opposite side Bus stop,
however, the witness volunteered to say that the said sub-
way was closed and people were not using that sub-way
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
15
as the condition of the sub-way was not good. She
admitted a suggestion as true that there was no zebra-
crossing for crossing the road at the place where the
accident has occurred. She also admitted a suggestion as
true that there was no Bus stop for the KSRTC Bus near
the spot of the accident. She denied a suggestion that the
accident has occurred when she suddenly crossed the road
without observing the movement of the traffic on the road
and that the accident has occurred on her negligence, but
not on the part of the driver of the KSRTC Bus.
17. The claimant got examined one Nithesh, a
student of the very same S.J. Polytechnic College,
Bengaluru, as PW-2. The said witness has stated that he
was an eye witness to the road traffic accident in question.
He stated that the road traffic accident in question has
occurred due to the rash and negligent driving of the
KSRTC Bus by its driver. After seeing the claimant
sustaining injuries in the said road traffic accident, it was
him joined by his friends who shifted the injured to the St.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
16
Martha's Hospital, Bengaluru and got her admitted in the
said Hospital for treatment.
In his cross-examination, this witness also admitted
as true that there was no zebra-crossing marks on the
road to cross the road where the claimant was crossing
the road. The witness volunteered to state that the Bus
stop was located just opposite to the College entrance,
therefore, all the students used to cross from Bus stop
towards College.
18. The above evidence of the claimant (PW-1) and
PW-2 would clearly go to establish that, the claimant was
crossing the main road in that particular place where no
pedestrian crossing or zebra-crossing was there. Their
evidence would further go to show that, though there was
a sub-way to cross the said road, however, the claimant
had not used the said sub-way stating that it was not in
good condition. It has come in the evidence of PW-1 and
PW-2 that the road on which the road traffic accident in
question has occurred was a busy road with heavy traffic
and large number of Buses would ply on the said road.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
17
Therefore, it was very much required of the claimant to
cross the road ensuring her safety and the absence of the
movement of the vehicle on that road at the time of she
crossing the road, more particularly, she should have
chosen a pedestrian path or a zebra-crossing path to cross
the road. Even the rough sketch of the spot produced by
the claimant herself at Ex.P-4 also would go to show that,
the spot where the claimant crossed the road was not on
the zebra-crossing path or a pedestrian path. On a busy
double road, divided with a median, the claimant chose to
cross the road exactly on the opposite side of the main
gate of the S.J.Polytechnic Government College only to
reach the Bus stop which was opposite to her College
Gate on the other side of the road.
19. PW-2 himself, in his cross-examination has
voluntarily stated to a question about the zebra-crossing
marks on the road that, since the Bus stop was located
just opposite to their College entrance, all the students
used to cross from Bus stop towards the College, thus
without observing the safety norms and without even
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
18
making use of the pedestrian path, the students, among
whom the claimant was also one was crossing the road
and jumped the road median to approach the other side
Bus stop or from Bus stop to the College. Thus, on the ill-
fated day of the occurrence of the road traffic accident
also, the claimant has attempted to cross the road not
following the safety norms, nor even crossing the road at
a specific place for road crossing.
20. Added to the above, a suggestion was made to
RW-1 from the claimant's side in his cross-examination
suggesting that a Police was standing and helping the
pedestrians including the students for crossing the road
ahead of the place of the accident. The witness has
admitted the said suggestion as true. Thus, by making
the said suggestion, the claimant herself has admitted
that, ahead of the place of the accident, there was a Police
on duty and he was helping the pedestrians including the
students for crossing the road. However, the claimant did
not make use of that path to cross the road, on the other
hand, herself took the risk of abruptly crossing the road
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
19
and jumping the median to reach the Bus stop which was
on the opposite side, i.e. other part of the road. Had the
claimant been a bit careful and followed the safety norms
and crossed the road where the Police was there, helping
the pedestrians including the College students to cross the
road, probably, the road traffic accident in question would
not have occurred. Thus, the evidence of none else than
the claimant as PW-1, PW-2 and the cross- examination of
RW-1 coupled with the documentary evidence at Ex.P-4
would go to show that, even though the driver could have
anticipated the abrupt crossing of the road by a pedestrian
and was careful enough while driving the Bus, still, the
negligent act on the part of the claimant also has
contributed in the occurrence of the road traffic accident in
question, cannot be ruled out.
Thus, considering all the above aspects including the
vehicle involved in the road traffic accident and the
manner of occurrence of road traffic accident, we are of
the view that the percentage of contributory negligence on
the part of the claimant can be fixed at 10% and the
remaining 90% be fixed on the part of the driver of the
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
20
offending KSRTC Bus, for his rash and negligent driving of
the said Bus.
21. According to the claimant, due to the road traffic
accident, she sustained multiple injuries. She has stated
that she had sustained severe injuries to her right leg,
head and all over her body, due to which, she underwent
surgeries and was treated as in-patient in St. Martha's
Hospital from the date 11-03-2017 to 22-04-2017.
In her support, she got marked a Wound Certificate
at Ex.P-11, four Laboratory reports at Ex.P-12, five
photographs with a CD at Ex.P-13 and Ex.P-13(a),
St. Martha's Hospital MRD Registration card at Ex.P-20,
outpatient outcome sheet at Ex.P-21, discharge summary
at Ex.P-23, in-patient records at Ex.P-31, MLC register
extract at Ex.P-33 and three X-ray films at Ex.P-36.
22. The claimant also got examined one Dr.R.
Shashikanth as PW-3, who, as a Medical Officer and
Assistant Surgeon at St. Martha's Hospital, Bengaluru, has
stated that, the claimant was treated in their Hospital as
an in-patient from the date 11-03-2017 to 22-04-2017.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
21
He stated that the claimant was brought to their Hospital
on the date 11-03-2017 with the alleged history of a Road
Traffic Accident (RTA). The Doctor in the Hospital noticed
the following injuries upon her:
i) Degloving injury of the right leg extending
from the right knee to the ankle over anterior and
antero lateral aspect with knee capsule tear and
exposed, gastrocnemius muscle tear and lateral
femoral condyle exposed with gross contamination of
the wound.
ii) Multiple abrasions over the right foot and
left leg.
The Doctor (PW-3) opined that the injury No.1 was
grievous in nature and injury No.2 was simple in nature.
He has also got produced and marked OPD card of the
Hospital, in-patient records, the Police intimation copy, the
MLC register copy, disability calculation sheet, notes from
plastic surgery and three X-ray films at Exs.P-30(a), P-31,
P-32, P-33, P-34, P-35 and P-36 respectively.
In his cross-examination, it was not denied that the
claimant had sustained injuries in the road traffic accident.
He admitted a suggestion that the claimant had not
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
22
sustained any fracture injuries, but she was suffering from
degloving injury to her right leg extending from the knee
to the ankle, crushing of vessels, nerves and muscles with
loss of complete skin. The said evidence of the Doctor
(PW-3) stands corroborated by the Wound Certificate at
Ex.P-11, which establishes that, in the road traffic
accident, the claimant has sustained both grievous and
simple injuries. Since the claimant sustained injuries and
was treated in the Hospital and according to her has also
incurred huge expenses and loss of career, she is entitled
for compensation payable to her by the KSRTC.
23. The above evidence of the claimant coupled with
the evidence of PW-2 and PW-3 shows that the claimant
has sustained injuries which have been more fully
described by PW-3 in his evidence and also in the Wound
Certificate at Ex.P-11 and the discharge summary at
Ex.P-23. Ex.P-23 which is the discharge summary shows
that the claimant had sustained degloving injury to right
leg from knee till the ankle with gross contamination, knee
joint capsule breached, deep fascia tear, gastrocnemius
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
23
muscle tear, tibia was found exposed in middle 1/3rd and
she had also sustained multiple abrasions over the right
foot. Thus, apart from suffering grievous and simple
injuries which were multiple in nature, she also suffered a
lot of pain and was treated as an in-patient in the Hospital
from the date 11-03-2017 to 22-04-2017 as shown in
Ex.P-23. According to PW-3 Doctor, the claimant was still
required to undergo few more surgeries for removal of
scars. Merely because the claimant has not sustained
fracture injuries that does not mean that she is not
suffering with considerable pain and agony. On the other
hand, the injuries sustained by her and the length of
medical treatment as an in-patient in the Hospital would
all go to show that, she has suffered pain and agony to a
considerable extent. Since it is considering all these
aspects, the Tribunal has awarded compensation of a sum
of `1,00,000/- under the head of pain and sufferings,
which is just and reasonable, we do not find any reason to
modify the same.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
24
24. The claimant, as PW-1 has stated that, due to
the injuries sustained by her in the road traffic accident in
question, she has lost her future career and has become
disabled. PW-1 has stated that due to the injuries
sustained by her, she was unable to walk and stand for
long duration. She could not bend her right leg, as such,
she cannot ride a two-wheeler or a bicycle. Due to the
injuries and disability suffered by her, she could not do
any kind of job or work. At the time of accident, she was
a brilliant student securing high marks in her previous
examinations having bright future. However, her future
has been jeopardised due to the injuries sustained by her
in the road traffic accident in question.
The claimant as PW-1 has also got produced and
marked copy of her SSLC Marks Card and copy of four
academic marks card at Exs.P-14 and P-15. She got
marked disability calculation sheet at Ex.P-34, notes from
Plastic Surgery at Ex.P-35 and also got examined PW-3
Doctor.
25. PW-3 (Doctor) in his evidence has stated that, after
her admission to their Hospital, the claimant underwent a
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
25
spinal anaesthesia wound debridement, cleaning, washing
and dressing was done under spinal anaesthesia. She also
underwent surgical skin grafting on the date 23-03-2017.
After her discharge on the date 22-04-2017, the claimant
/patient was advised to visit the Hospital for regular
follow-up checkups. On one such follow up checkup date,
i.e. on 28-04-2018, he had examined the claimant for her
further treatment and for assessment of disability. After
hearing the complaints of the claimant and medically
examining her, he has noticed that the claimant had
suffered disability of 13.33% to the whole body. He has
also stated that the claimant was also required to be
operated and re-operated in few areas for release of
contractures, which may require several surgeries in
future.
26. In his cross-examination, the witness adhered to
his original stand and substantiated his evidence given in
his examination-in-chief and the medical documents which
he has produced and got marked from Exs.P-30(a) and
P-36. Thus, it stands established that due to the road
traffic accident in question, the claimant has sustained a
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
26
permanent disability to an extent of 13.33% to her whole
body.
27. It is the contention of the claimant in her claim
petition as well in her evidence as PW-1 that, because of
the permanent disability sustained by her due to the
injuries caused to her in the road traffic accident, she has
lost her future income. She is unable to pursue any job or
work.
Learned counsel for the claimant submitted that, her
income is to be taken notionally at a sum of `30,000/- per
month for the purpose of calculation of compensation
towards loss of future earnings.
28. The oral evidence of PW-1 and PW-3
corroborated with the medical documents including the
disability certificate would go to show that, the claimant
has sustained 13.33% disability to her whole body.
Undisputedly, she was a student studying in 4th Semester
Diploma Course as on the date of the occurrence of the
road traffic accident. The wound certificate at Ex.P-11
coupled with the photographs at Ex.P-13 would go to show
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
27
that, due to the road traffic accident, she has sustained
grievous injuries and also disfiguration of the right lower
limb. The evidence led by the claimant as PW-1 herself
and also the evidence of PW-2 and the Medical Doctor as
PW-3 goes to show that, she has not only suffered
disability but also loss in her future career, as such, she is
entitled for compensation towards loss of future earning
also.
29. Admittedly, the claimant was a student of 4th
Semester Diploma Course as on the date of the occurrence
of the road traffic accident, as such, she had no fixed or
definite income on the date of accident, however, her grim
future after her education cannot be ignored. In that
regard, the Tribunal noticed that our Hon'ble Apex Court in
the case of National Insurance Co. Ltd. vs. Salma
Farheen & Ors. reported in 2016 ACJ 2132, had
considered the income of a II year B.A. student at
`20,000/- per month. Similarly, the Tribunal also
observed that the Hon'ble Supreme Court in the case of
V. Mekala Vs. M. Malathi and Anr. reported in 2014 AIR
SCW 2973 was pleased to hold the notional income of a
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
28
girl student of XI standard and aged 16 years at a sum of
`20,000/- per month. In spite of observing the ratio of
law laid down in the aforesaid judgments of the Hon'ble
Apex Court, the Tribunal has taken the income of the
claimant in the case on hand at only `15,000/- per month
and taking her age as 19 years, as per the medical
records, for which, the multiplier applicable was '18', for
the disability of 13.33%, has computed the compensation
towards loss of future earning at a sum of `4,31,892/- (i.e.
`15,000/-x12x'18'x13.33/100).
In the said process, the Tribunal did not notice that
in the case on hand also, the injured claimant was a
student and was pursuing her 4th Semester Diploma
Course, as such, her income should not have been taken
at less than a sum of `20,000/- per month. Thus, in the
facts and circumstances of the case, the income of the
claimant should have been taken at a sum of `20,000/-
per month by the Tribunal. If the said income is taken,
the quantum of compensation for which the claimant
would be entitled towards loss of future earning would be
a sum of `5,75,856/- (i.e. `20,000/-x12x'18'x13.33/100).
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
29
30. The claimant has stated in her evidence as PW-1
that, due to the injuries sustained by her and also the
disability caused to her, she has lost amenities in her life
and also marriage prospects. She has produced her
photographs after sustaining injuries, at Ex.P-13 which
shows that her right lower limb is disfigured. Undisputedly,
she is a female of 19 years as on the date of the road
traffic accident. As such, not only she has suffered loss of
amenities, but also lost her marriage prospects to a
considerable extent. It is considering these aspects, since
the Tribunal has awarded compensation of a sum of
`75,000/- towards loss of amenities and `1,00,000/-
towards reduction of marriage prospects, the same being
just, fair and reasonable, we do not find any reason to
modify the same.
31. The evidence of the claimant as PW-1 and the
evidence of PW-2 coupled with the documentary evidence
produced by her at Exs.P-15, P-16, P-17, P-25, P-26 and
P-27 would go to show that, due to the injuries sustained
by her, she could not take the ensuing Examination of her
4th Semester Diploma Course. Thus, she has lost one
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
30
academic year due to the injuries sustained by her in the
road traffic accident.
Though the Tribunal has awarded a compensation of
a sum of `50,000/- under the head of loss of one academic
year, however, considering the nature of the Course she
was pursuing in her College at the time of accident and
the mental turmoil undergone by her due to the loss of
one academic year, we are of the view that the said
compensation awarded towards loss of one academic year
deserves to be enhanced by another sum of `50,000/-,
thus making it in total a sum of `1,00,000/-.
32. It is after considering the medical bills which are
eighty two (82) in number marked at Ex.P-24 and the
medical records, the Tribunal has awarded a sum of
`2,43,500/- towards the medical expenses, the same
being on actuals, warrants no interference at the hands of
this Court.
33. The claimant has stated that, for her visit to the
Hospital for regular follow-up treatment due to the nature
of the injuries sustained by her in the road traffic accident,
she had hired a taxi and has produced a taxi invoice copy
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
31
at Ex.P-30. She stated that her parents also used to visit
the Hospital during her hospitalisation period and during
follow-up treatment. It is considering these aspects since
the Tribunal has awarded a sum of `54,000/- as shown in
the taxi invoice at Ex.P-30 as compensation towards
conveyance, we do not find any reason to modify the
same.
34. The quantum of compensation awarded towards
loss of income of the parents of the claimant during her
laid up period which is at `25,000/- being just and
reasonable, we retain the same, without any modification.
35. PW-3 (Doctor) has stated that the claimant is
required to undergo several future surgeries to remove the
scars from her right lower limb and she is required to be
operated and re-operated, towards which, he has
estimated an approximate cost of a sum of `1,00,000/-.
The Tribunal has awarded a sum of `75,000/- under the
said head of future medical expenses.
Though the learned counsel for KSRTC vehemently
submitted that the said quantum awarded towards future
medical expenses is on the higher side, however,
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
32
considering the facts and circumstances of the case, we
retain the same amount without any modification.
36. Barring the above, the claimant is neither
entitled for compensation under any other heads nor the
compensation awarded by the Tribunal under the existing
heads deserves any further modification.
37. Thus, as analysed above, the claimant in
M.V.C.No.4478/2017 (appellant in M.F.A.No.8289/2018)
is held entitled for a modified compensation as tabulated
below:
Sl. Compensation Compensation
No. Particulars awarded by awarded by this
Tribunal in (`) Court in (`)
1 Pain and sufferings 1,00,000-00 1,00,000-00
2 Loss of future earning 4,31,892-00 5,75,856-00
3 Loss of amenities of life 75,000-00 75,000-00
4 Reduction of marriage 1,00,000-00 1,00,000-00
prospects
5 Loss of one academic 50,000-00 1,00,000-00
year
6 Medical expenses 2,43,500-00 2,43,500-00
7 Conveyance 54,000-00 54,000-00
8 Loss of income of the 25,000-00 25,000-00
parents during laid up
period
9 Future medical expenses 75,000-00 75,000-00
Total 11,54,392-00 13,48,356-00
Deducting interim 5,000-00 5,000-00
compensation amount
already paid by
respondent
Total 11,49,392-00 13,43,356-00
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
33
38. Thus, the claimant is entitled for a total
compensation of a sum of `13,48,356/- as against
`11,54,392/- which is an enhancement of a sum of
`1,93,964/-.
39. However, as observed above, the road traffic
accident in question has occurred not solely due to the
rash and negligent driving of the KSRTC Bus bearing
No.KA-07/F-1660 by its driver, but also there is
contributory negligence on the part of the claimant in
causing the road traffic accident.
40. Thus, considering the facts and circumstances of
the case and the discussion made above, since the
contributory negligence on the part of the claimant is
fixed at 10% and the remaining 90% is fixed on the
KSRTC, her entitlement would be only for the remaining
90% of the total compensation, which comes to
`12,13,520/- [i.e.`13,48,356/- (-) 10%, i.e. `1,34,835.60,
rounded off to `1,34,836/-], which is tabulated below.
M.F.A.No.8289/2018
c/w. M.F.A.No.8206/2018
34
Particulars Amount in `
Total compensation awarded by this 13,48,356-00
Court
Less: 10% contributory negligence (-) 1,34,836-00
fixed on the claimant
= 12,13,520-00
Less: total compensation awarded by (-) 11,54,392-00
Tribunal
= 59,128-00
Less: the interim compensation (-) 5,000-00
amount already paid by KSRTC
Enhancement of compensation =54,128-00
made by this Court
41. Thus, it is only for this enhancement amount
and fixing of contributory negligence on the part of the
claimant at 10%, the present appeals deserve to be
allowed in part.
Accordingly, we proceed to pass the following:
ORDER
[i] The appeal filed by the claimant in M.F.A.No.8289/2018 and the appeal filed by the KSRTC in M.F.A.No.8206/2018 stand allowed in part;
[ii] The impugned judgment and award, passed by the learned XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-23) at Bengaluru, dated M.F.A.No.8289/2018 c/w. M.F.A.No.8206/2018 35 28-06-2018, in M.V.C.No.4478/2017, is hereby modified to the extent that the total compensation awarded at `11,54,392/- by the Tribunal is enhanced to a sum of `13,48,356/- (Rupees Thirteen Lakh Forty Eight Thousand Three Hundred and Fifty Six only);
[iii] The order of the Tribunal fixing the entire negligence on the part of the driver of the KSRTC Bus bearing registration No.KA-07/ F-1660 and directing the KSRTC to deposit the entire compensation is hereby modified and the contributory negligence is fixed at 10% on the part of the claimant and the remaining 90% on the part of the driver of the offending KSRTC Bus bearing registration No.KA-07/F-1660;
In view of the contributory negligence fixed at 10% on the part of the claimant, the claimant is held entitled to a total compensation of a sum of `12,13,520/-;
[iii] The rest of the order of the Tribunal with respect to fixing the liability upon the KSRTC and directing it to deposit the awarded amount, awarding the interest from the date of the petition, its rate, terms regarding release of the amount awarded shall all remain unaltered;
M.F.A.No.8289/2018 c/w. M.F.A.No.8206/2018 36[iv] The entire enhanced compensation of a sum of `54,128/- (Rupees Fifty Four Thousand One Hundred and Twenty Eight Only) with interest be released in favour of the claimant, upon her proper identification, by the Tribunal;
The statutory amount in deposit by the appellant -
KSRTC in M.F.A.No.8206/2018 in the Registry be transmitted to the Tribunal, without delay.
Registry to transmit a copy of this judgment to the concerned Tribunal, along with its records, without delay.
There shall be a modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE BMV*