Karnataka High Court
Muninanjappa vs The Managing Director, Karnataka State ... on 25 February, 2003
Equivalent citations: 2005ACJ1416, 2003(4)KARLJ132, 2003 AIR KANT HCR 1713, 2003 A I H C 2575, 2003 AIR - KANT. H. C. R. 1713, (2003) 6 ALLINDCAS 777 (KAR), 2003 AIHC 2575, (2003) 3 TAC 249, (2003) 2 KCCR 1374, (2005) 2 ACJ 1416, (2003) 4 KANT LJ 132, (2003) 9 INDLD 134, (2003) 2 ACC 334
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT S.B. Majage, J.
1. The appellant, who was claimant in M.V.C. No. 3012 of 1995 on the file of the Court of Motor Accident Claims Tribunal (SCCH-2) at Bangalore City, has approached this Court requesting to enhance the amount of compensation awarded by the Tribunal and also to hold that he had not contributed to any extent for the accident.
2. Heard the learned Counsels appearing for the parties. It is submitted for the claimant that the Tribunal committed an error in holding that he also contributed for the accident, in which he has sustained injuries, and also in awarding less compensation. On the other hand, the learned Counsel for the Corporation supported the impugned judgment and award. Perused the records carefully.
3. The facts giving rise to the present appeal are that the claimant, who was admittedly travelling in bus bearing No. MEF 275 on its footboard at about 7.30 p.m. on 21-10-1995, sustained injuries when he fell out of the said bus while in motion, for which he took treatment, but still left with certain disabilities and consequently, for the amount which he had spent on treatment, conveyance etc., besides pain, suffering and permanent disability left with him etc., claimed compensation of Rs. 3,00,000/-. The Corporation opposed the said claim. According to it, when the driver of the bus was taking turn near HAL Police Station, in the process of getting down from the said moving bus, the claimant himself lost balance and fell down, sustained injuries and there was no negligence on the part of the driver and consequently requested to dismiss the claim. However, after appreciating the evidence on record, the Tribunal held that the claimant and the bus driver were responsible to the extent of 30% and 70% respectively for injuries sustained by the claimant and accordingly, awarded compensation of Rs. 48,440/- with cost and interest at the rate of 9% p.a., though arrived at the compensation of Rs. 69,200/- totally. It is against the said judgment and award passed by the Tribunal, the claimant is before this Court now,
4. The facts that the claimant was travelling in the bus, he fell out of the bus when the bus was in motion and he sustained injuries on account of such fall and left with certain disabilities in spite of taking treatment as in-patient etc., are not in dispute. As noted already, what is in dispute is, whether or not the claimant also contributed for injuries sustained by him and, whether or not compensation awarded is just and reasonable.
5. At the outset, it may be noted that the Corporation did not prefer to examine either the driver or conductor or any passenger travelling in the bus at the time of accident in question. In fact, no witness has been examined for the Corporation in support of its case. That apart, it has not relied on any documentary evidence also. As against this, the claimant examined himself as P.W. 1 and stated on oath that since there was heavy rush in the bus, he was standing on the footboard of the front door in the bus and the said bus was driven at high speed when it took turn near HAL main road and on account of that, he was thrown out and sustained injuries. He denied the suggestion that in his hurry to get down from the bus at the time when it was about to stop, he fell out of the moving bus when the bus took turn to the main road and consequently sustained injuries due to his negligence only and not due to the fault of the bus driver and sustained simple injuries without any disability whatsoever. Further, FIR at Ex. P. 1, charge-sheet at Ex. P. 2, spot mahazar at Ex. P. 3 and sketch at Ex. P. 4 are in support of the claimant.
6. In spite of the said abundant material available in favour of the claimant, it is submitted for the Corporation that the claimant could be held responsible at least in part for having travelled on footboard, which was not permitted under law and hence, no fault can be found with the view taken by the Tribunal in fixing 30% liability for the injuries sustained by him.
7. On the other hand, the learned Counsel for the claimant strongly relies on a Division Bench decision of Kerala High Court in the case of Bhaskaran v. Ravindran and Ors., 1990 ACJ 1032 (Ker.), 1990(2) TAC 87 (Ker.) and also a Division Bench decision of this Court in the case of Varadamma v. H. Mallappa Gowda and Ors., 1972 ACJ 375 (Mys.) in support of her argument that the Tribunal committed an error in fixing liability on the claimant to the extent it held.
8. In the case of Bhaskaran, supra, the Division Bench has observed as under:
"In Municipal Corporation of Greater Bombay v. Akatai Tataba Hankare, 1982 ACJ 284 (Bom.) an off duty conductor of the B.E.S.T. Transport Organisation who was entitled to free ride in any bus of the company while off duty if he travels in the space of the footboard at the rear was thrown off and was injured when the driver applied brakes suddenly. The Court held that it was common knowledge that even passengers on payment of fare are allowed to travel on footboard on account of too many passengers being compelled to travel in too few buses and the fact that there was a passenger on the footboard would cast duty on the undertaking to carry him safely. On the facts it was held that contributory negligence was not proved. In Makbool Ahmed and Ors. v. Bhura Lal and Ors., 1986 acj 219 (Raj.) it was held that at a bus-stop it was the duty of the conductor to stand at the opening of the door to ensure that passengers who wanted to get down have got down and those who wanted to board the bus have boarded it and only thereafter he can give signal for the bus to move. If he gave signal when passengers were still on the footboard, he would be guilty of dereliction of his duty exhibiting rashness and negligence. In that case it was found that there were many passengers standing on the footboard for want of seats inside the bus and the conductor was busy issuing tickets without caring to discharge his duties towards the passengers.. . . .
15. . .. ... ... ...
16. It is the duty of the conductor to see that the bus is set in motion only after all alighting passengers have alighted and passengers intending to travel in the bus board the bus. Boarding a bus does not mean merely entering the footboard. Boarding the bus means getting inside the bus and either sitting in a seat or standing in the space reserved for standing passengers. A conductor has a statutory duty to see that there are no footboard passengers. If a passenger is on the footboard and there is no space at all for him to sit or stand inside the bus, he must be asked to get down and the bus can be set in motion only after he alights. When there is sitting or standing space inside the bus it is the duty of the conductor to see that a passenger who is on the footboard gets inside the bus and seats himself or stands in the space reserved for standing passengers before giving signal for the bus to start. This corresponds with the driver's duty to ensure that bus is moved only after ensuring safe travel conditions. In the discharge of his duty he is largely guided by the instructions of the conductor. If a bus with no vacant seat and no standing space is started when a passenger is on the footboard and he is not asked to alight from the bus or not cautioned against travel on foot-board and accident takes place and the footboard passenger sustains injury, wholly or partly on account of his position on the footboard, he cannot be held to be guilty of contributory negligence. It may be that if he refuses to alight in spite of the direction by the conductor or if he is cautioned about the risk he is undertaking by travel on footboard, it is not possible to absolve him of the responsibility in the accident. We, therefore, hold that the claimant was not guilty of contributory negligence".
9. It is not a case, where the claimant had refused to alight in spite of directions of the conductor or, that he was cautioned about the risk he was undertaking by travelling on footboard, or, it is the case of the Corporation that the bus was not overcrowded or, that in spite of availability of vacant seats in the bus, the claimant chose to stand on footboard, particularly, when there is no evidence for the Corporation whatsoever.
10. So, the observations referred to above squarely answer the points raised or could be canvassed against the Corporation and as such, I do not find any such force in the stand taken by the Corporation in supporting the view taken by the Tribunal.
11. In this view of the matter, contributory negligence of claimant to the extent of 30% held by the Tribunal requires to be negatived.
12. Coming to the quantum of compensation awarded by the Tribunal, it may be noted that the Tribunal awarded compensation of Rs. 10,000/- towards 'loss of amenities in future', Rs. 15,000/- towards 'injury, pain and suffering', Rs. 9,000/- towards loss of income during treatment period' taking it as six months, Rs. 10,000/- towards 'medical treatment inclusive of bills, attendance charges etc.', Rs. 25,200/- towards 'loss of future earning' assessed at 10% on monthly income of Rs. 1,500/- after applying 14 multiplier and thus, awarded a sum of Rs. 69,200/-. Of course, according to the claimant, the amount of compensation awarded towards 'injury, pain and suffering' and loss of amenities', is less and requires to be enhanced. On the other hand, the learned Counsel for the Corporation submitted that since the claimant happened to be a Government servant working as a driver and earning Rs. 1,500/-p.m., there cannot be any loss of earning in future and consequently, the Tribunal was not justified in awarding Rs. 25,200/- under that head, but supported the amount of compensation awarded under other heads. The claimant had the following injuries, as stated by Dr. Vijaykumar examined as P.W. 2:
1. Crush injury of left foot exposing underlying tissues including bones;
2. Fracture of lower 1/3rd of left fibula;
3. Fracture of the medial malleolus of the left tibia. It was found displaced;
4. Fracture, dislocation of 1st, 2nd and 3rd of metatarsal pha-langeal joint of the left foot.
According to the said doctor, wound debridement was done and dislocation of the metatarsal phalangeal joint were reduced and dressed and limb was immobilized with POP. Slab put, when advised, the claimant refused to undergo surgery for fracture of medial malleolus and comminuted fracture of fibula and as such, he was discharged from hospital with an advice to come for follow up treatment, which also the claimant did not do. However, the said doctor has assessed the percentage of disability of the claimant at 40% for the left lower limb, but 10% for the entire body. Based on said percentages, the Tribunal has assessed the 'loss of income/earning in future' and arrived at a figure of Rs. 25,200/-. It is this amount, which is seriously challenged by the Corporation.
13. There is nothing on record to show that on account of injuries sustained by him, the claimant has been terminated from service or thrown out from service or not engaged for the work for which he has been appointed. It would not have been difficult for the claimant to produce some record for any of the said things as he happened to be a Government servant but, for the reasons best known to him, not produced any record. The refusal on the part of the claimant to have operation and follow up treatment also cannot be lost sight of. Of course, P.W. 2-Dr. Vijayakumar has pleaded his ignorance when suggested to him that if the claimant had undergone surgery, there would not have been disability. Of course, sometimes patients do get disabilities. Ultimately, the claimant has been left with certain disabilities, which are permanent in nature and as such, he requires to be compensated suitably. At the same time, it cannot be forgotten that he, being a person in Government service, has not been thrown out of employment due to injuries sustained by him. So, he cannot be awarded under the head 'loss of income in future' though, to some extent, the disability can be kept in mind in awarding compensation.
14. In this view of the matter, the amount of Rs. 25,200/- awarded by the Tribunal under the head 'loss of earning in future', cannot be sustained. However, having regard to the nature and number of injuries sustained by the claimant, who is left with certain disabilities and the fact that the Corporation has not chosen to file any appeal challenging the amount of compensation awarded to the claimant and that it is not a case, where the amount of compensation awarded by the Tribunal can be reduced, more so, when the amount of compensation awarded under the head 'loss of earning in future' can be adjusted towards other heads, under which compensation awarded is submitted as less or insufficient. In this view of the matter, the amount of compensation awarded requires to be maintained, but the Corporation has to pay the entire compensation for the reason that the claimant was not held to have contributed for sustaining injuries.
15. Though the learned Counsel for the claimant strongly relies on a Division Bench decision of this Court in the case of Namisaheb Dastagir-saheb v. Deelip Baban, 2001 ACJ 1141 (Kar.) in support of the argument that the amount of compensation awarded by the Tribunal requires to be enhanced, having regard to the facts available in the case on hand, which are different from the facts of the said case, the said decision does not help the claimant. No other point has remained to be answered nor canvassed.
16. In the result, appeal is allowed in part with cost holding that the claimant-appellant is entitled to compensation of Rs. 69,200/- from the respondent-Corporation with interest at the rate of 9% p.a. from the date of petition till its recovery, within a period of 30 days from today with adjustment, if any, to be made for the amount paid already to him. Accordingly, the impugned judgment and award stand modified.
17. Fee of Advocate is fixed at Rs. 500/-.