Karnataka High Court
Managing Director, North West ... vs Guddappa Durgappa Ramannavar on 15 March, 2005
Equivalent citations: IV(2005)ACC589, 2006ACJ305, AIR 2005 (NOC) 319 (KAR), 2006 (2) ABR (NOC) 265 (KAR), 2006 (2) AIR BOM R 265, 2005 AIR KAR R 1162, 2005 A I H C 2425, (2005) 3 TAC 342, (2005) 3 RECCIVR 15, (2005) 4 ACC 589, (2006) 1 ACJ 305, 2005 AIR - KANT. H. C. R. 1162
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT S.B. Majage, J.
1. In this appeal, the appellant N.W.K.R.T.C. has challenged the impugned judgment and award passed by the M.A.C.T., Haveri, by which it has been directed to pay compensation of Rs. 49,200 with interest at 6 per cent per annum, to the respondent-claimant.
2. The case of the appellants is that as the respondent-claimant was travelling sitting on the top of the bus, as has come in the evidence, the appellants are not at all responsible for the accident and for the compensation as well. On the other hand, the learned Counsel for the respondent-claimant supported the impugned award. Perused the records carefully.
3. The respondent-claimant filed claim petition stating that he met with accident while travelling by K.S.R.T.C. bus No. KA 25-F 383 from Haveri to Kallihal village on 11.2.1997, in which he was thrown away near the land of Parasanagoudra and sustained multiple simple injuries besides grievous, namely, fracture to 4th and 5th ribs on right side, for which he took treatment as inpatient from 11.2.97 to 14.2.1997 and then again from 14.2.97 to 20.2.1997 but, in spite of treatment taken, he is not in a position to perform his routine work though he is the sole earning member of his family and hence, entitled to compensation of Rs. 1,60,000. The appellants-respondents disputed the correctness of the said averments in the claim petition besides stating that respondent-claimant himself was guilty and responsible for the accident and as such he cannot take advantage of his own wrong and consequently requested to dismiss the claim petition.
4. During trial, the claimant examined as PW 1 has stated that he was travelling by sitting on the top of the bus along with 35 passengers as there was rush in the bus. According to him, he took ticket from the conductor. He has further stated that the bus was going at high speed and when the driver of the bus applied brakes at once, he fell from the top and sustained injuries. The same is corroborated by Suresh Bagalkot, PW 2. The fact that the claimant was travelling sitting on the top of the bus is not disputed seriously. The dispute is for the liability of the appellants-respondents to pay compensation on the ground that the claimant himself went on the top of the bus and as such, the Corporation is not responsible for the injuries sustained by him and nor the driver of the bus. Of course, neither the driver nor the conductor of the bus was examined.
5. As noted already, in the claim petition, the claimant has not pleaded that he was travelling sitting on the top of the bus. That apart, even in the evidence also, he has nowhere stated that at the direction of the driver or conductor of the bus, he went to the top of the bus. What has been stated by him in his examination-in-chief itself is that as there was rush in the bus, he was sitting on the top of the bus along with 35 passengers. Nowhere he has stated that the passengers, including himself, went to the top of the bus on the say of the conductor or the driver. Further, it is also not stated by him specifically that the driver or conductor of the bus knew that he and other passengers were sitting on the top of the bus. However, from his evidence that in spite of asking the driver not to drive the bus at great speed the driver drove it at great speed, it could be inferred that the driver of the bus was aware.
6. Be that as it may, the deposition of claimant, PW 1, even if believed as it is, then also, it goes to show that he himself went to the top of the bus and travelling sitting on the top of the bus, may be that some other passengers were also travelling on the top of the bus. Simply because some other passengers were doing so, that cannot be taken to hold that claimant was asked by the driver or the conductor of the bus to travel sitting on the top of the bus, more so, when there is no pleading or evidence to that effect. In somewhat similar circumstances, in the case of Shivleela v. Karnataka State Road Trans. Corporation , a Division Bench of this Court has apportioned the liability of the claimant and K.S.R.T.C. in the ratio of 50:50. Of course, in that case, the stand of the claimant, that on the direction of the conductor the claimant was travelling sitting on the top of the bus, was disbelieved by the Tribunal and also by this Court and held that the claimant failed to show that with permission or at the direction of the driver or conductor of the bus, he was travelling sitting on the top of the bus. But, keeping in mind that the driver and conductor of the vehicle are required to take care that no passenger travels sitting on the top of the bus, apportioned the liability to the extent of 50 per cent each, after observing thus:
(13) ...What is important is that in either situation any person who travels on the roof of the vehicle takes a calculated risk. Travel on the roof of the vehicle is per se dangerous and anyone who does so must be presumed to be aware of the risk involved and the consequences thereof. The degree of care and caution oh the part of the driver may vary depending on whether the driver had known about the presence of the person on the roof or was unaware of the same, but insofar as the passenger is concerned, he takes a risk by travelling in breach of the law and must therefore share the consequences flowing from the same.
7. Same was the view taken by another Division Bench of this Court in the case of Mayamma v. Siddaiah , wherein also the liability was apportioned to 50 per cent each.
8. Of course, learned Counsel for the claimant relied on two decisions rendered by two learned single Judges of this Court in the cases of United India Insurance Co. Ltd. v. Doddapapaiah and North West Karnataka Road Trans. Corporation v. Devamma , in support of his argument that in such a case appellants-respondents cannot escape from their liability as claimant was not responsible for the accident. But in the case of Doddapa-paiah (supra), the liability of the insurance company was in issue and as such that does not come to the help of claimant in the present case. Of course, in the case of Devamma (supra), the Corporation though found to have taken a specific plea that in spite of having sufficient space inside the bus, the deceased had boarded on the roof of the bus without hearing to the warning given by the conductor and the driver of the bus, had failed to substantiate the same, so this Court in the facts and material available in that case held that the Corporation alone is liable to pay the compensation.
9. But, having regard to the two Division Bench decisions referred to above and the facts and circumstances of the present case, the liability of respondent-claimant and the Corporation could be fixed at 50 per cent each.
10. Now let me consider whether the compensation awarded could be reduced or not, since it is the case of the appellant Corporation that compensation awarded is more.
11. Admittedly, the claimant sustained fracture to his 4th and 5th ribs as per the wound certificate at Exh. P5. He was an inpatient from 14.2.1997 to 20.2.1997. In addition to fracture of ribs, he sustained lacerated wound over right parietal region on the scalp, measuring 2 cm x 1 cm and another lacerated wound behind right ear, measuring 2 cm x 1 cm with bleeding from nose. So, he could be awarded compensation of Rs. 20,000 as against Rs. 5,000 awarded by the Tribunal towards injuries, pain and suffering. Claimant has produced medical bills at Exhs. P11 to P18 along with prescription slips Exhs. P6 to P11. He was inpatient for four days at Haveri and inpatient at Davangere for six days. The claimant is from Kallihal village in Haveri taluk. So, naturally he must have spent money on conveyance, food, nourishment, treatment, attendant charges, incidental charges, etc. So, keeping in mind, the said records, nature of injurirs, the amount of Rs. 5,600 awarded for medical expenses and Rs. 5,000 towards conveyance by the Tribunal does not require to be disturbed, though it is on higher side but to some extent only and takes care of fact that the Tribunal has not awarded compensation towards food, nourishment and attendant charges besides incidental charges.
12. Though Dr. S.R. Angadi, PW 4, has stated about the disability of the claimant by stating that the claimant cannot do agricultural work as he was doing earlier to the accident and cannot lift and carry any heavy weight in the field, he is not the doctor, who had treated the claimant and examined the claimant on 9.6.2000 only and not earlier to that. Further, when the parts at which the injuries are sustained by the claimant are considered, it cannot be said that the extent of disability will be about 20 per cent. Still, if assumed, that the claimant has disability to that extent, there is no satisfactory evidence about the income or the earning capacity of the claimant is affected to that extent so as to determine and award of compensation on that basis. Be that as it may, the claimant will have certain extent of disability on account of injuries sustained. So, a sum of Rs. 10,000 could be awarded towards loss of amenities in future, which would take care of the loss of earning capacity or loss of earnings in future. Further, a sum of Rs. 1,400 could be awarded towards loss of earnings during treatment period of nine to ten days. Thus, a sum of Rs. 42,000 could be awarded as compensation to the claimant and not Rs. 49,200 as awarded by the Claims Tribunal. Further, as the liability is apportioned to the extent of 50 per cent each, the respondent-claimant will be entitled to the compensation of Rs. 21,000 only from the N.W.K.R.T.C., appellants-respondents, but with interest at 9 per cent per annum and not at 6 per cent per annum awarded by the Tribunal, as it is an injury case. In the above view, the appeal requires to be allowed in part.
13. In the result, the appeal is allowed in part holding that respondent-claimant is entitled to a compensation of Rs. 21,000 with interest at 9 per cent per annum (as against Rs. 49,200 awarded by the Claims Tribunal with interest at 6 per cent per annum) keeping rest intact. Accordingly, the impugned judgment and award stand modified. In the circumstances, parties to bear their respective costs.
Draw up the award accordingly.