Karnataka High Court
Sri D Murali Krishna vs Managing Director Ksrtc on 29 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
MISCELLANEOUS FIRST APPEAL NO.3329 OF 2014 (MV)
BETWEEN:
SRI D MURALI KRISHNA,
S/O LATE B. DORAI SWAMY,
AGED ABOUT 48 YEARS,
R/AT DOOR NO.1,
KOTHUR VILLAGE,
PEDDAPALLI POST,
-VIA-OORGAMPET,
ROBERTSONPET HOBLI,
KGF-563 121,
KOLAR DISTRICT. ...APPELLANT
(BY SRI KASHYAP N NAIK, ADVOCATE)
AND:
MANAGING DIRECTOR KSRTC,
KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
K.H. ROAD,
SHANTI NAGAR,
BANGALORE-560027. ...RESPONDENT
(BY SRI S N ASWATANARAYANA, ADVOCATE)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
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AWARD DATED 24.02.2014 PASSED IN MVC NO.2658/2010
ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES
AND XXVI ACMM, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for both sides arguments are heard for final disposal.
2. This appeal is filed by the claimant assailing the judgment and award passed in MVC No.2658/2010 by the Small Causes Court and XXVI ACMM, MACT, Bengaluru, (herein after referred to as the 'Tribunal' for the sake of brevity).
3. This appeal is filed by the claimant assailing the judgment and award of the tribunal on the question of quantum alone.
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4. For the sake of convenience the parties shall be referred to in terms of their status and ranking before the tribunal.
5. The claimants have filed the claim petition under Section 166 of the Motor Vehicles Act (herein after referred to as 'the Act' for the sake of brevity) seeking compensation in respect of the burn injuries caused while traveling in a bus.
6. The facts briefly stated are that on the fateful date of the accident i.e., on 27/28-09-2009 the petitioner was coming from Bengaluru to Kolar in a KSRTC bus bearing registration No.KA 42 F 001. Since all seats were occupied, the petitioner was standing near drivers' cabin. When the bus was moving, the hot water from the radiator spilled over the body of the petitioner, as a result of which he sustained the burn injuries. The petitioner was taken to P.E.S. Medical College hospital, Kuppam, Chittoor District, Andhra Pradesh. He has taken treatment as 4 inpatient for 16 days. The petitioner was earning a sum of Rs.15,000/- p.m. by self employment. Due to the burn injuries caused he has lost his income and also the earning capacity. The respondents are liable to pay the compensation.
7. On service of notice the respondent appeared through his counsel and filed objections denying the averments made in the claim petition. Further it is contended that the petitioner was not traveling in the said KSRTC bus from Bengaluru to Kolar. The burn injuries sustained by the petitioner may be due to some other cause. Thus, the respondent is not liable to pay the compensation.
8. On the basis of the aforesaid pleadings the tribunal has framed the following issues:
1. Whether the petitioner proves that the injuries sustained in road traffic accident that occurred on 27/28-9-2008, at about 00.30 hours, near 5 Ramasandra gate of Kolar district, Bangalore -
Chennai NH-4 road, was due to rash and negligent driving of the driver of KSRTC bus bearing registration No.KA-42-F-001 and as a result petitioner sustained various injuries as stated in the wound certificate?
2. Whether the petitioner is entitled for compensation? If so, for what amount and from whom?
3. What order and award?
9. On appreciating the oral and documentary evidence placed on record the tribunal has come to the conclusion that the petitioner has sustained the burn injuries as the boiling water in the radiator spilled over the body of the petitioner while he was traveling in the bus and has further awarded the compensation of Rs.1,89,346/- 6 along with interest at 6% p.a. from the date of petition till its realization.
10. Being aggrieved by the judgment and award passed by the tribunal the claimant has preferred the appeal and has sought for enhancement of compensation.
11. Heard the learned counsel for the claimant - appellant and learned counsel for the respondent - KSRTC.
12. The learned counsel for the appellant claimant contends that the tribunal has failed to award the compensation in respect of the future medical expenses, namely the plastic surgery required to be done with regard to the burn injuries sustained by the petitioner. PW.2, the doctor has stated that there is need for plastic surgery which may cost him around Rs.1,50,000/- and further hospitalization for two weeks and rest for six weeks is also required, but the same has not been considered by the tribunal. Thus it has resulted in miscarriage of justice. 7 Even the compensation awarded under other heads is too meager and disproportionate. As such, there are valid grounds for enhancement of compensation.
13. Per contra, learned counsel for the respondent contends that the tribunal has awarded compensation on the basis of the evidence placed on record. The petitioner has not sustained any fracture, as such there was no disability whatsoever but the tribunal has awarded compensation towards loss of earning capacity. There is no satisfactory evidence to prove that there was loss of skin on account of the burn injuries, and the plastic surgery is required to replace the skin. The compensation awarded is proper and justified and there are no grounds to interfere with the judgment and award. Hence the appeal deserves to be dismissed.
14. Having heard the learned counsel for the respective parties and on perusal of the materials on 8 record and the impugned judgment and award the following point would arise for consideration.
(a) Whether the compensation awarded by the tribunal calls for modification? In other words whether the claimant is entitled for additional compensation?
15. In the present case the tribunal has awarded compensation under various heads as detailed below :
1. Pain and sufferings Rs.40,000/-
2. Loss of earning capacity (4,500 x 12 x 13 x 10%) Rs.70,200/-
3. Food, conveyance and other expenses during treatment period Rs.10,000/-
4. For medical expenses (including Ex.P.11) Rs. 5,146/-
5. Future medical expenses (for plastic surgery) Rs.32,000/-
Total Rs.1,89,346/-
Rounded of to Rs.1,89,500/-
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The tribunal has committed error in totaling the compensation amount awarded under various heads. On considering the compensation amount awarded under various heads detailed above, the total compensation would be Rs.1,57,346/-, but the tribunal has mentioned the same as Rs.1,89,500/-.
16. The main grievance of the petitioner is that the tribunal has failed to award the compensation towards medical expenses required for plastic surgery. On going through the photographs which have been marked as EX.P.13 it is seen that the petitioner has sustained the burn injuries on both thighs and on some part of the stomach. These photographs disclose that the skin has become red as the said photographs were taken immediately after the accident. No doubt the doctor has stated that there is a need for plastic surgery, but there is no convincing evidence to show that the skin was totally damaged on account of the burn injuries as such, there is 10 a need for plastic surgery. Thus, in my opinion, the plastic surgery is not essential, as there are no grounds to hold that there was total loss of skin because of the burn injuries.
17. The tribunal has awarded compensation of Rs.40,000/- towards pain and suffering which appears to be on lower side as the petitioner has endured lot of pain and suffering because of the burn injuries. Thus there is a need for enhancement of compensation and a sum of Rs.60,000/- is awarded towards pain and suffering as against Rs.40,000/- awarded by the tribunal.
18. During the course of arguments the learned counsel for the appellant claimant submitted that the compensation awarded towards the medical expenses is too meager. According to the claimant he has taken treatment for 16 days as inpatient and thereafter he might have continued his treatment at home. In the instant case the tribunal has awarded medical expenses of Rs.5,146/-. 11 Considering the nature of injury sustained by the petitioner and the period of treatment, a sum of Rs.25,000/- is awarded towards medical expenses and attendant charges as against Rs.5,146/- awarded by the tribunal. The compensation awarded towards loss of future earning and earning capacity calls no interference.
19. For the foregoing reasons, the compensation awarded by the tribunal is modified and enhanced to the extent as follows:
1. Pain and sufferings Rs.60,000/-
2. Loss of earning capacity (4,500 x 12 x 13 x 10%) Rs.70,200/-
3. Food, conveyance and other expenses during treatment period Rs.10,000/-
6. For medical expenses (including Ex.P.11) Rs.25,000/-
7. Future medical expenses Rs.32,000/-
Total Rs.1,97,200/-12
20. In the result, I proceed to pass the following ORDER The appeal filed by the claimant is allowed in part.
The judgment and award is modified to the extent that the claimants are entitled to the total compensation of Rs.1,97,200/- with interest at 6% p.a. from the date of petition till the date of realization as against Rs.1,89,500/- as awarded by the tribunal.
The respondent KSRTC is directed to deposit the enhanced compensation along with upto date interest before the jurisdictional tribunal within six weeks from the date of receipt of certified copy of the judgment/award.
Parties to bear their respective costs.
Sd/-
JUDGE ykl