Karnataka High Court
Marjeppa S/O Malkajappa Harijan vs Nagayya S/O Yenkayya Iliger on 11 June, 2013
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 11TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
MFA NO.31315 OF 2012 (MV)
BETWEEN:
MARJEPPA
S/O MALKAJAPPA HARIJAN
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE COOLIE & CARPENTER,
R/O TELLUR, TALUQ-AFZALPUR,
DIST-GULBARGA,
PIN CODE-585301.
... APPELLANT
(BY SRI. B.C. JAKA, ADVOCATE)
AND:
1. NAGAYYA
S/O YENKAYYA ILIGER,
AGED ABOUT 54 Y EARS,
OCC: KSRTC DRIVER,
R/O DESAI JEWARGI,
TALUQ-AFZALPUR,
DIST: GULBARGA,
PIN CODE-585301
2. THE MANAGING DIRECTOR,
NEKRTC, GULBARGA,
THROUGH ITS DIVISIONAL
CONTROLLER, NEKRTC,
GULBARGA DIVISION,
GULBARGA-585102.
... RESPONDENTS
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(BY SMT. RATNA N. SHIVAYOGIMATH, FOR R2- ADVOCATE,
R1- NOTICE D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 16.01.2008 PASSED IN MVC
NO.106/2008 ON THE FILE OF I ADDITIONAL CIVIL
JUDGE(SR.DN.) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA IS COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 16.01.2008 passed in MVC No.106/2008 on the file of I Additional Civil Judge(Sr.Dn.) & MACT at Gulbarga, partly allowing the claim petition and seeking enhancement of compensation.
2. With the consent of the learned counsel for appellant as well as learned counsel for respondent, this matter was heard on merits. The materials placed before this Court is sufficient to dispose off the matter at this stage.
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3. The case of the claimant in the claims Tribunal is as under:
That on 24.06.2003, the claimant was proceeding to native place Tellur from Afzalpur along with other persons, on that day the bus was fully crowded. There were many passengers. The bus bearing registration No.KA-32-F-581 was driven by the respondent No.1-driver. The bus was over crowded, therefore, the claimant enquired the respondent No.1-driver and the conductor of the bus and they suggested the claimant to sit over the top of the bus. In between Afzalpur-Anur the bus was driven by the driver with high speed in a rash and negligent manner, as a result of which, the claimant fell down from the top of the bus after he came in contact with live electric wire, consequently, he sustained injuries,
4. The age of the claimant is mentioned at column No.3 of the claim petition as 40 years, the occupation of the claimant is mentioned at column No.4 as agricultural coolie and 4 carpenter. The income of the claimant was Rs.2,500/- per month. The claimant has also stated in his evidence that he was earning more than Rs.150/- per day by doing agricultural and carpentry work.
5. The respondent Nos.1 and 2 have appeared through their respective counsel before the claims Tribunal. The respondent No.1 has not filed any objection statement. The respondent No.2 has filed the objection statement denying the rash and negligent driving of the driver of the bus.
6. The finding of the claims Tribunal is as under:
PW1-claimant in his evidence has specifically stated that on 24.06.2003 he was waiting for the bus to proceed from Tellur to Afzalpur, bus was being driven by the respondent No.1, as it was fully loaded with passengers. He could not get access for travelling by standing inside the bus. He approached the conductor and driver of the bus, both of them advised him for sitting on the top of the bus, when the bus came near Anur village, the driver of the bus drove the 5 same with high speed in a rash and negligent manner. Due to which, the claimant fell down from the top of the bus after came in contact with live electric wire. Consequently, he sustained injuries.
7. Ex.P1 is the certified copy of FIR. The complaint was given by the eyewitness one Malkapppa who was also travelling along with the claimant. The driver of the bus nor the conductor did not ask them to get down from the top of the bus. The accident is not denied. The respondent No.1 is the driver of the bus bearing registration No.KA-32-F-551. The defence taken by the respondent No.2 is that the claimant on his own accord he was travelling by sitting on the top of the bus and he himself was negligent. He slipped down from the top of the bus and sustained injuries. Therefore, there was contributory negligence on the part of the claimant. The law warrants that the passengers should not be allowed to travel by sitting on the top of the bus. Equally the conductor and driver of the bus they are the employees of the 6 Corporation they are duty bound to maintain the Rules and Regulations imposed by the statue.
8. RW1 is the driver of the bus. He has stated in his chief examination that he was driving the bus carefully following the traffic Rules and Regulations. In his cross-examination, though he has denied that he and conductor of the bus asked the claimant to travel by sitting on the top of the bus, the facts reveals in the FIR as well as in the evidence brought on record it is certain that the conductor and driver of the bus have not taken any possible precaution and with their knowledge only the claimant traveled on the said bus by sitting on the top of the bus and he fell down after he came in contact with electric wire. Even if to the knowledge of the bus driver and conductor, the claimant has traveled on the bus by sitting on the top, the claims Tribunal has to bear in mind that by taking his own risk also by flouting the law he sat on the top of the bus, therefore, to that extent the claimant is also guilty of negligence. The bus driver and conductor are 7 also negligent in allowing him to travel by sitting on the top of the bus. Therefore, to some extent the claimant is also negligent. Therefore, it is held that the negligence on the part of the claimant is 25% and negligence on the part of the conductor and driver is 75% would be just and reasonable.
9. The claims Tribunal has awarded a sum of Rs.25,000/- under the head of pain and suffering, Rs.5,000/- towards medical charges, Rs.3,000/- under the head of attendant charges, Rs.3,000/- towards nursing and extra nourishment charges. Rs.2,000/- towards conveyance and transportation charges, Rs.5,000/- towards loss of earning during the laid- up period, Rs.90,000/- towards loss of future income. Rs.5,000/- towards loss of future medical expenses. In all, the claims Tribunal has awarded a total compensation of Rs.1,43,000/-
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10. Feeling aggrieved by the same, the claimant has preferred this appeal seeking for enhancement of compensation.
11. Learned counsel for appellant submits that the claims Tribunal fixing the negligence on the part of the claimant who was a victim of the accident is not proper. The compensation of Rs.90,000/- awarded under the head of loss of earning capacity is on the lower side. The income of the claimant assessed at Rs.2,500/- per month even though the claimant was carpenter as well as agriculturist and the accident occurred during the year 2003. Therefore, the income of the claimant has to be fixed at higher rate. Therefore, he seeks for enhancement of compensation.
12. Learned counsel for respondent No.2 supports the impugned judgment and award. She further submits that the contributory negligence attributed to the claimant is on the lesser side even though he was sitting on the top of the bus when the bus was proceeding, he came in contact with live 9 electric wire, consequently he fell down. The income assessed by the claims Tribunal is reasonable.
13. In the cause title of the claim petition, Nagayya-driver of the KSRTC bus was made as respondent No.1, but though he made appearance through the advocate, he had not filed any independent objection statement. Without filing the objection statement he had entered into the box and deposed before the claims Tribunal. In my view, it is not safe to place reliance on the evidence of the driver of the KSRTC who was examined as RW1 but the police papers clearly reveals and also averments narrated in the claim petition clearly reveals that on 24.06.2003, the claimant was proceeding in KSRTC bus bearing registration No.KA-32-F-551. It is also mentioned that the conductor suggested the claimant to sit on the top of the bus consequently, the bus was proceeding he came in contact with electric wire and he fell down. It is undisputed fact that the claimant sat on the top of the bus and traveled. It is very abnormal behaviour and the claimant himself was taken risk 10 to sit on the top of the bus. Though, I hold that the evidence of the driver cannot be relied but on admission of the claimant for having sat on the top of the bus voluntarily on his own violation. It is clear that he has also contributed for the cause of accident. The claims Tribunal, after examining the evidence and also police papers, have come to a conclusion that the claimant is also negligent. Therefore, there is negligence on the part of the claimant to the extent of 25% and there is negligence on the part of the driver and conductor to the extent of 75%. The claims Tribunal has properly appreciated the materials placed on record and also documentary evidence, have come to a conclusion that the employee of the Corporation was also responsible for this accident. The finding recorded by the claims Tribunal is based on evidence. It is sound and proper.
14. The next aspect that I have to consider is the income of the claimant assessed by the claims Tribunal whether the proper or not? In the instant case, the accident occurred in 11 the year 2003, the claimant in his claim petition has clearly stated that he was doing agricultural as well as carpentry work thereby he was earning a sum of Rs.2,500/- per month. Though he has stated at column No.25 of the claim petition the daily wages of the carpenter is Rs.150/- per day, but he has not produced any documentary evidence to show that he was earning Rs.150/- per day and no proof has been shown that he was a carpenter. Therefore, in my view, the earning of the claimant can be assessed at Rs.3,000/- per month.
15. PW2-Dr has stated in his evidence that on 15.06.2006 he has examined the claimant. He has sustained in his evidence that the claimant has sustained following physical impairment:
Left upper limb Abnormal mobility left arm with wasting of Of arm muscles with deformity 15% Shoulder movements not possible 15% Inability to left weight left upper limb 10% 12 Elbow movements restricted right upper limb 10% Right upper limb Deformity bony swelling pain tenderness lower End radius moved wrist 15% Wrist movements restricted right side 15% X-ray shows non-union of the fracture left femur and mal-united fracture lower end radius right side. Therefore, the doctor in his opinion that the claimant is having physical impairment of 50% to the left upper limb and 40% to the right upper limb and 40% to the whole body. Loss of income corresponding to the disability of 40% would be Rs.1,200/-. So due to the reduced capacity of work, the claimant has lost amount of Rs.1,87,200/-(Rs.1,200 x 12 = 14,400/- x 13 = 1,87,200/-) which has to be compensated now.
16. In all, the claimant is entitled for a total compensation as under:
Pain and suffering Rs. 25,000/-
Medical expenses Rs. 5,000/-
Attendant charges Rs. 3,000/-
Nursing, extra nourishment charges Rs. 3,000/-
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Conveyance and transportation Rs. 2,000/-
Loss of income during the period
of treatment Rs. 5,000/-
Loss of earnings Rs. 1,87,200/-
Future medical treatment Rs. 5,000/-
Loss of amenities Rs. 5,000/-
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Total Rs.2,41,200/-
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17. The enhanced compensation will bear the interest at 6% per annum from the date of petition till the date of payment.
18. In view of the above discussion, I pass the following:-
ORDER
1. This Miscellaneous First Appeal is allowed in part.
2. The compensation is enhanced from Rs.1,43,000/-
as awarded by the Claims Tribunal to Rs.2,41,200/-.
3. The enhanced compensation amount will bear the interest at 6% per annum from the date of petition till the date of payment.
4. The claimant is not entitled any interest for the period of delay.
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5. The respondent No.2 being the owner i.e. NEKRTC is liable to pay compensation to the extent of 75%.
6. Rest of the judgment and award is accepted.
Sd/-
JUDGE JTR