Karnataka High Court
Sri V G Ashwathappa @ Ashwatha, vs Andhra Pradesh State Road Transport on 11 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MFA.No.7365/2010 C/W
MFA.Nos.7938/2010, 7039/2010, 7939/2010 (MV)
IN MFA.No.7365/2010
BETWEEN:
SRI V G ASHWATHAPPA @ ASHWATHA,
S/O GANGADHARAPPA,
AGED 28 YEARS,
R/O BANDAMANAHALLY,
POSHITTY HALLI POST,
NANDIDURGA HOBLI,
CHIKKABALLAPURA TALUK,
KOLAR DISTRICT.
PRESENTLY R/AT NO.173,
NEAR BUS STOP, H.A. FARM POST,
HEBBALA, DASARAHALLI,
BANGALORE. ... APPELLANT
(BY SRI H B SOMAPUR, ADV.)
AND:
THE ANDHRA PRADESH STATE ROAD TRANSPORT
CORPORATION,
BY ITS VICE CHAIRMAN,
AND MANAGING DIRECTOR,
R.A. MUSHEERABAD,
HYDERABAD,
ANDHRA PRADESH STATE. ... RESPONDENT
2
(BY SRI D VIJAYAKUMAR, ADV.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
22.3.2010 PASSED IN MVC NO.7955/2007 ON THE FILE OF
XII ADDITIONAL SMALL CAUSES JUDGE & MEMBER,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA No.7938/2010
BETWEEN:
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION,
CENTRAL OFFICE,
MUSHIRABAD HYDERABAD
ANDHRA PRADESH
REP. BY ITS VICE CHAIRMAN AND
MANAGING DIRECTOR. ... APPELLANT
(BY SRI D VIJAYA KUMAR, ADV.)
AND:
SRI V G ASHWATHAPPA @ ASHWATHA
S/O SRI GANGADHARAPPA
R/O BANDAMANAHALLY POSHITTYHALLI POST
NANDIDURGA HOBLI
CHICKABALLAPUR TALUK AND DISTRICT
PRESENTLY R/O NO.173,
NEAR BUS STOP
H.A. FARM POST,
HEBBALA DASARAHALLI
BANGALORE-560 024. ... RESPONDENT
(BY SRI H B SOMAPUR, ADV.)
3
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
22.03.2010 PASSED IN MVC NO.7955/2007 ON THE FILE
OF XII ADDITIONAL SMALL CAUSES JUDGE & MEMBER,
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.9,52,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
IN MFA No.7039/2010
BETWEEN:
SRI V D MALLAPPA @ MALLESHA
AGED ABOUT 30 YEARS
S/O. DARMAIAH
R/AT.VEDALAVENI,
BOMMASANDRA POST
GOWRIBIDANUR TALUK,
KOLAR DISTRICT
PRESENTLY R/AT.GOVINDAREDDY HOUSE
ANANTHAPURA,
YELAHANKA,
BANGALORE-560 064. ... APPELLANT
(BY SRI H B SOMAPUR, ADV.)
AND:
ANDHRA PRADESH STATE
ROAD TRANSPORT CORPORATION,
BY ITS VICE CHAIRMAN
AND MANAGING DIRECTOR,
R.A.MUSHEERABAD,
HYDERABAD
ANDHRA PRADESH STATE. ... RESPONDENT
(BY SRI D VIJAYA KUMAR, ADV.)
4
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:22.03.2010 PASSED
IN MVC NO.7583/2007 ON THE FILE OF THE XII
ADDITIONAL SMALL CAUSE JUDGE, MEMBER MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA No.7939/2010
BETWEEN:
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION,
CENTRAL OFFICE, MUSHIRABAD HYDERABAD
ANDHRA PRADESH
REP. BY ITS VICE CHAIRMAN AND
MANAGING DIRECTOR. ... APPELLANT
(BY SRI D VIJAYAKUMAR, ADV.)
AND:
SRI V D MALLAPPA @ MALLESHA
AGED ABOUT 30 YEARS
S/O SRI DARMAIAH
R/O VEDALAVENI BOMMASANDRA POST,
GOWRIBIDANUR, CHICKBALLAPUR DISTRICT.
PRESENTLY R/O GOVINDAREDDY HOUSE,
ANANTHAPURA,
YELAHANKA,
BANGALORE. ... RESPONDENT
(BY SRI H B SOMAPUR, ADV.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
22.03.2010 PASSED IN MVC NO.7583/2007 ON THE FILE
OF XII ADDITIONAL SMALL CAUSES JUDGE & MEMBER,
5
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.2,64,350/- WITH INTEREST @ 6% P.A. (EXCLUDING
THE INTEREST ON FURTURE MEDICAL EXPENSES OF
RS.25,000/-) FROM THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are directed against the impugned common judgment and award dated 22.03.2010 passed by the XII Additional Small causes Judge, Member- MACT, Bengaluru in MVC.Nos.7583 and 7955/2007.
2. The brief facts of the cases are that on 1.8.2007 at about 9.30 p.m. one Shri.B.D. Mallappa who is petitioner in MVC.No.7583/2007 along with his wife Smt. Netravathi were proceeding on a motorcycle bearing No.KA-05-K-8541 from Gowribidanur towards Bangalore on the left side of the road. When they came near Bangalore Circle in Gowribidanur town, they saw one V.G. Ashwathappa who is stated to be the friend of Mallappa and claimant in MVC.No.7955/2007 thus, 6 they stopped their motorcycle and were chatting with him. At that time, APSRTC bus bearing No.AP-28-Z- 928 being driven by its driver in high speed and in a rash and negligent manner, came from Bengaluru side and dashed against the claimants as a result of which they sustained grievous injuries. Hence, they filed claim petitions seeking compensation for the injuries sustained by them.
On service of notice, the respondent entered appearance and filed separate written statements in both the claim petitions denying the averments made in the petitions and also denied the very accident and the involvement of the bus in question in the accident. Further, contended that the compensation claimed by the claimants as exorbitant and that there was negligence on the part of the claimants themselves.
In support of their case, the claimants got themselves examined as P.Ws.1 and 2 and also got 7 examined other witnesses as P.Ws.3 to 7 and also got marked Exs.P1 to P30. The respondent got examined the spare driver of the bus as R.W.1 and however, no documents were got marked.
The Tribunal on appreciation of both oral and documentary evidence on record, allowed both the claim petitions granting compensation of Rs.2,64,350/- to the claimant in MVC.No.7583/2007 and Rs.9,52,000/- to the claimant in MVC.No.7955/2007 with interest at 6% p.a. from the date of petition till realisation.
Being aggrieved by the impugned judgment and award, the claimants have preferred MFA.Nos.7365/2010 and 7039/2010 questioning the quantum of compensation awarded and the APSRTC has preferred MFA.Nos.7938/20101 and 7939/2010 questioning the involvement of the bus in question in the accident and also with regard to the contributory negligence.
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3. The claimant in MFA.No.7039/2010 has contended that the Tribunal has committed an error in awarding compensation of Rs.2,64,315/- with interest at 6% per annum. According to the evidence of P.W.6, the claimant has sustained permanent disability of 38% to the right lower limb and 19% to the whole body. P.W.4- the dental surgeon has deposed that the claimant has suffered 40% of permanent disability to the whole body and he has sustained 100% disability due to which he has not continued the driving profession. The Tribunal has erred in holding that the claimant is also negligent to the extent of 15% for causing the accident in question without appreciating the material evidence placed on record like charge sheet and other relevant police records and no material evidence was placed before the Court to discard the evidence of PW.1. Under such circumstances, the Tribunal ought to have held that the accident in 9 question was due to the sole negligence on the part of the driver of the APSRTC bus. The other contention of the claimant is that the Tribunal has taken the income as Rs.4,000/- per month as against Rs.7,500/- per month and taken only 25% disability as against 100% disability. Hence, the impugned judgment and award requires to be modified by enhancing the compensation and fixing the negligence solely on the driver of the APSRTC bus.
4. The claimant in MVC.No.7955/2007 in the appeal has contended that the Tribunal has committed an error in awarding compensation of Rs.9,52,000/- which is too meagre and the interest awarded is also on the lower side. It is also contended that the doctor who has been examined as PW.5 has deposed that he has sustained disability of 95% of right lower limb and 43% to the whole body and physical functional disability is 100%. The Tribunal has erred in holding that the 10 appellant has also contributed for the accident to an extent of 15% without appreciating the material evidence placed on record like charge sheet and other relevant documents and the Tribunal has failed to consider the evidence of P.W.1 in coming to the conclusion that the accident was on account of the sole negligence on the part of the driver of the APSRTC bus. He has further contended that he is a driver by profession and due to the accidental injuries and consequent disability and deformity, he cannot continue in his profession or in any other occupation. Hence, the Tribunal has committed an error in awarding only Rs.8,64,000/- by considering his income as Rs.4,000/- per month as against Rs.7,500/- per month. The compensation awarded under all other heads is also meagre and as such the impugned judgment requires to be modified both on the quantum of compensation and also with regard to the contributory negligence. 11
5. The APSRTC being aggrieved by the impugned judgment in fixing contributory negligence at 15% only on the claimants and also the quantum of compensation awarded has preferred MFA.No.7938/2010 in respect of MVC.No.7955/2007 contending that the Tribunal has committed an error in fixing the contributory negligence in the ratio of 15:85% between the claimants and the driver of the APSRTC bus. Further, contended that the Tribunal has miserably failed to appreciate the clear defence taken before the Tribunal that the claimant in MVC.No.7583/2007 along with two pillion riders namely his wife and the claimant in MVC.No.7583/2007, the road was under repair and not in good condition and all of them were under the influence of alcohol and as such the rider of the motor cycle was not in a position to ride the motor cycle and because of his negligence in carrying two pillion riders and under the influence of alcohol he lost control over the motor cycle and fell on 12 the ground ad number of people had gathered at the place of the incident. After some time, the APSRTC bus came to the spot and noticing the people gathered and the road block, he stopped the vehicle about 15 ft. away from the place of incident and found that the rider and two pillion riders had fallen on the ground and had sustained injury due to the negligence of the rider of the motor cycle and thereafter the driver of the APSRTC bus left the place of incident. The claimants who noticed the bus, noted the registration number and falsely implicated the bus in question and the said fact has not been property considered by the Tribunal. The Tribunal also miserably failed to appreciate both oral and documentary evidence and there is no evidence of the complainant or any other independent eye witness to prove the alleged involvement of the bus and contributory negligence of 85% on the driver of the bus. Only on the ground that the police have filed the charge sheet against the APSRTC bus 85% negligence is fixed 13 on the driver of the bus which is unjustifiable. The other contention of the APSRTC that the rider of the motor cycle was carrying two pillion riders and in the light of the decision of the Division Bench in AIR 2003 KAR 258 [P. Somaiah and another .vs. The Director, Bangalore Dairy] wherein the rider was carrying two children in front of the rider has fixed 40% contributory negligence on the part of the rider of the motor cycle and the Tribunal without appreciating this aspect the has erroneously fixed only 15% contributory negligence on the part of the rider of the motor cycle which is unjustifiable. The Tribunal placing reliance on the decision in Somaiah's case referred above wherein two small children were carried in the motor cycle and negligence was fixed at 40% whereas in this case three adults were travelling in the motor cycle which is more inconvenient and as such the Tribunal ought to have fixed more than 60% negligence. Further, contended that considering the oral and documentary evidence on 14 record, the Tribunal ought to have held that the APSRTC bus was not involved in the accident and dismissed the claim petitions.
Insofar as quantum of compensation is concerned, the Tribunal has committed an error in awarding compensation of Rs.9,52,000/- to the claimant for the alleged injuries of amputation leg above knee for a person aged more than 25 years and failed to consider Ex.P12 -wound certificate and the material on record and committed an error in taking the functional disability of 100% even though the doctor has deposed before the Tribunal that the disability is 43% to the whole body. Further the income is taken at Rs.4,000/- in the absence of any documentary proof. The Tribunal has failed to take note of the Full Bench decision of this Court reported in ILR 2004 KAR 777 [Vittal Poojari .vs. S.J. Yatyeesh and another] wherein this Hon'ble Court has held that the Tribunal ought to have taken all 15 probable work that the person can do and it is not only driving work and since he could do some alternate work and earn something, 100% disability taken for amputation of leg of the claimant requires to be modified.
6. In MFA.No.7939/2010 also which is filed against the judgment and award in MVC.No.7583/2007, the APSRTC has contended the very same grounds in respect of contributory negligence is concerned. Further, it is contended that Ex.P5-wound certificate disclose the nature of the injuries and the Tribunal has committed an error in awarding compensation of Rs.3,11,000/- which is on the higher side including the heads of pain and suffering, loss of amenities. Though the claimant has produced bills only for a sum of Rs.10,473/- the Tribunal has awarded rs.25,000/- towards medical expenses, which is also on the higher side. The other contention is that the doctor who has 16 been examined before the Tribunal has assessed the disability at 38% to the right lower limb and the Tribunal has taken 50% of the disability i.e. 19% without considering that in case of disability to the lower limb, to ascertain the disability to the whole body, 1/3rd of the disability to the limb has to be taken as corresponding disability to the whole body. Further, considering the disability on account of loss of teeth, the Tribunal has taken whole body disability at 25% which is very much excessive and baseless. The Tribunal has also taken the income as Rs.4,000/- for computing the loss of income and that the compensation awarded under all other heads is also excessive and hence, the counsel has sought for dismissal of the claim petition on the ground that the accident is on account of sole negligence on the part of the claimants and that the compensation awarded by the Tribunal in both the cases is on higher side and the same has to be modified. 17
7. The counsel appearing for the claimants in both the appeals contended that the Tribunal has committed an error in coming to the conclusion on contributory negligence on the part of the claimants to the extent of 15% without examining the driver of offending vehicle. The witnesses who have been examined before the Court claims that he is a spare driver and no material is placed before the Court with regard to his work as a spare driver and he was also there at the time of the accident and the very presence of the RW.1 is disputed and also false implication of the bus and not examined any witness with regard to his employment to prove that he was under the employment of the APSRTC. The counsel also contends that the charge sheet filed against the driver of the APSRTC is also not challenged. Therefore, the Tribunal ought not to have come to the conclusion that there was negligence on the part of the claimants to the extent of 15% and the same requires to be set aside. Further, the 18 Tribunal has taken the income in both the cases as Rs.4,000/- and failed to take note of the fact that both the claimants are drivers and in support of their contention the driving licence was also produced. The compensation awarded under all other heads is very meagre and this Court has to award just and reasonable compensation considering the gravity of the injuries sustained by the claimants. In support of his contention, he has relied upon the decision of the Supreme Court in 2014 ACJ 627 [Syed Sadiq and others .vs. Divisional Manager, United India Insurance Company Limited] regarding the disability taken at 85% in the case of amputation of right leg and also brought to my notice regarding future prospects to be considered while assessing the future loss of income. He has also relied upon the decision reported in 2010 AIR SCW 437 regarding Section 2(1)(b) Schedule I Part 2 in the case of Workmen's Compensation Act wherein in respect of a lorry driver for amputation of leg below 19 knee due to accident, the loss of earning capacity is taken as 100% holding that percentage of loss of earning capacity, as specified in Para II of Schedule I cannot be applied. He has also relied on the decision reported in ILR 2004 KAR 2471 [K. Narasimha Murthy .vs. The Manager, M/s.Oriental Insurance Company Limited, Bangalore and another regarding different heads of compensation to be considered by the Court. Further reliance is placed on the decision in 2015 ACJ 598 [Neeta and others .vs. Divisional Manager, Maharashtra State Road Transport Corporation] regarding assessment of disability and determination of income wherein the Apex Court in respect of a carpenter aged 23 years, having income from agricultural land and wherein no documentary evidence about income was produced and the income assessed by the Tribunal at Rs.4,500/- per month was increased to Rs.6,000/- per month in the appeal and the Apex Court considering that deceased was a skilled 20 worker, prevalent minimum wages, agricultural income and future prospects, assessed the income at Rs.12,000/- per month.
8. Per contra, the counsel appearing for the APSRTC in his arguments contended that the bus in question was not involved in the accident and taking note of the vehicle number which came to the spot subsequently, the bus in question has been falsely implicated. The Tribunal was not having any jurisdiction to entertain the claim petition. One of the claimants was proceeding on the motor cycle carrying two pillion riders, which is clear from the evidence. Further, no witnesses were examined before the Tribunal. Wife of one of the claimant was also proceeding on the motor cycle along with them and she has not been examined and none of the eye witnesses have been examined and the evidence before the Tribunal is only of interested witnesses and further 21 contended that the Tribunal ought to have taken the contributory negligence of 60% instead of 15%. It is further contended that the respondent has examined the spare driver as RW1 and he has categorically spoken about the negligence on the part of the claimants and that they were under the influence of alcohol and the rider of the motor cycle lost control of the motor cycle and they themselves fell down and sustained injuries.
9. Regarding the quantum of compensation is concerned, the counsel contends that in the case of P.W.1 the Tribunal failed to take note that the disability assessed by the doctor is 38% and 1/3rd of the same works out to 13% whole body disability. However, the tribunal has taken it as 25% without any material on record. The medical bills are produced only to the extent of Rs.10,000/- and the Tribunal has awarded compensation of Rs.25,000/- including other incidental 22 expenses. The tribunal has also awarded Rs.25,000/- towards future medical expenses without any basis. Therefore, the quantum of compensation awarded by the Tribunal in both the cases is on the higher side.
10. In support of his contention regarding jurisdiction, he has relied upon the decision in 1990(1) SCC 193 [Sushil Kumar Mehta .vs. Gobind Ram Bohra(dead) and Through his LRs] and further contended that defect of jurisdiction cannot be cured by consent of waiver. Further placing reliance on a single Bench decision of this Court in ILR 2013 KAR 102 [Subhadra and others .vs. Pankaj and another] and also unreported decisions of this Court in MFA.No.3425/2010 disposed of on 12.1.2017 and MFA.Nos.1378/2012 c/w MFA.No.2115/2012 disposed of on 1.10.2013 and contended that the Tribunal ought not to have entertained the claim petitions when there was no territorial jurisdiction. He 23 has also relied upon the decision reported in AIR 2003 KAR 258 [P.S. Somaiah and another .vs. The Director, Bangalore Dairy and others] regarding negligence is concerned. In the said case, two children were carried in a motor cycle and hence, the Tribunal has fixed contributory negligence to the extent of 60% and this Court came to the conclusion that it is not liable to be interfered with. He also relied upon the decision in Vittal Poojary .vs. S.J. Yatish and another [ILR 2004 KAR 2777] regarding taking of 100% disability. He has also relied upon the unreported decision of the Division Bench of this Court in MFA.No.10770/2010 and connected cases and contended that this Court has taken the contributory negligence to the extent of 50%.
11. After having heard the counsel for the claimants and also the counsel for the APSRTC, the points that arise for consideration are:- 24
"1. Whether the Tribunal has committed an error in entertaining the claim petition without territorial jurisdiction?
2. Whether the Court below has committed an error in fixing the contributory negligence to the extent of 15% on the claimants?
3. Whether the Tribunal has committed an error in taking the negligence to the extent of 15% and ought to have taken it on the higher side as contended by the counsel appearing for the APSRTC?
4. Whether the Tribunal has committed an error in awarding compensation of Rs.2,64,350/- in MVC.No.7583/07 and the same requires to be modified as contended by the claimants counsel?
5. Whether the Tribunal has committed an error in awarding 25 compensation of Rs.2,64,350/- which is excessive and exorbitant as contended by the APSRTC?
6. Whether the Tribunal has committed an error in awarding compensation of Rs.9,52,000/- in MVC.No.7583/07 and the same requires to be modified as contended by the claimants counsel?
7. Whether the Tribunal has committed an error in awarding compensation of Rs.9,52,000/- which is excessive and exorbitant as contended by the APSRTC?"
12. Now let me consider the first point for consideration with regard to territorial jurisdiction of the Tribunal. Admittedly the accident has taken place at Gowribidanur and there is no dispute with regard to the place of accident and the claim petitions filed before the Bengaluru Motor Accident's Claims Tribunal. The application filed by the APSRTC contending that the 26 Tribunal has no territorial jurisdiction has been dismissed and it has become final as it has not been questioned. However, the counsel for the APSRTC contends that it is the question of legal proposition and even if it has attained finality this Court can consider the same. In support of the said contention, he has relied on the decision of the Apex Court in 1990(1) SCC 193 [Sushil Kumar Mehta .vs. Gobind Ram Bohra(dead) and through his LRs] and unreported decisions of this Court in MFA.No.3425/2010 disposed of on 12.1.2017 and MFA.Nos.1378/2012 c/w MFA.No.2115/2012 disposed of on 1.10.2013. As already pointed out there is no dispute with regard to the place of accident. The Apex Court in the earlier decision in 1990(1) SCC 193 [Sushil Kumar Mehta .vs. Gobind Ram Bohra(dead) and Through his LRs] has held that the parties cannot waive the contention of the jurisdiction and in the decisions rendered by the Single Bench of this Court, it has been held that if there 27 is no territorial jurisdiction, the Tribunal cannot entertain the claim petition. I would like to refer to the decision of the Apex Court in Malati Sardar .vs. National Insurance Company Limited and others (2016) 3 SCC 43 wherein the Apex Court has held that when the insurer has branches in different places, it can very well defend its case. In the case on hand, the APSRTC is a party to the proceedings and it has engaged counsel on record in Bengaluru to contest the matter. When such being the case, the contention of the APSRTC cannot be accepted. Having considered the written statement and the intention of the legislature and also the ratio laid down by the Apex Court in Malati Sardar's case, the APSRTC cannot raise the said issue before this Court. Apart from that the defence taken by the APSRTC before the Tribunal was considered and dismissed I.A. and as such it has attained finality as the APSRTC has not chosen to challenge the same before the appellate Court. Hence, the contention with regard 28 to territorial jurisdiction fails and the accordingly the first point for consideration is answered in the affirmative.
13. Insofar as points 2 and 3 are concerned i.e. regarding contributory negligence, the claimants before the Tribunal have contended that only the claimant in MVC. 7583/2007 and his wife were proceedings on the motor cycle and they were talking to a friend, who is claimant in MVC.No.7955/2007 and at that time, the bus in question came and dashed against the motor cycle as a result of which both the claimants sustained injuries and as such the allegation is made that the accident is on account of the sole negligence of the driver of the APSRTC bus. On the other hand, the contention of the APSRTC is that some people had gathered near the incident spot and as such the driver had stopped the vehicle. Taking advantage of the same, the bus in question is falsely implicated by noting the 29 bus number. Regarding false implication is concerned, from a perusal of the material on record, the contention of the claimants that only husband and wife were proceeding on the motor cycle and were talking to a friend, claimant in MVC.No.7955/2007, whom they met on the way by the side of the road cannot be accepted. A perusal of Ex.p1-FIR and statement of the wife of the rider of the motorcycle before the police, she has clearly stated that the claimant in MVC.7955/2007 had requested her husband to take him also to the village and as such all the three were proceeding on the motor cycle. Thus, it is clear that it is an improvement on the part of the claimants in pleading that only two persons were proceeding on the motor cycle.
14. The other contention of the APSRTC that the bus in question has been falsely implicated and it was not at all involved in the accident cannot be accepted for the reason that the IMV report which is marked as 30 Ex.P4 clearly discloses that right portion of the bus was damaged i.e. right side light was damaged and that other damages were also found. The APSRTC has failed to explain as to how the bus portion is damaged if it is not involved in the accident when the IMV report discloses the damages caused to the bus, which fact has not been rebutted by adducing any evidence. Apart from that the spot mahazar also discloses that the vehicle was at the spot when the mahazar was conducted and that the width of the road is 15 ft. The spot mahazar clearly discloses that the motor cycle was on the left side of the road and the vehicles were subjected to IMV inspection. Hence, the contention of the APSRTC that the bus was not involved in the accident is also a false theory before the Tribunal when there is no explanation for the damages caused to the bus in question.
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15. Insofar as contributory negligence is concerned, the main contention of the claimants is that the vehicles had come in the opposite direction and dashed against the motor cycle when they were proceeding on the left side of the road. On the other hand, it is the contention of the APSRTC bus that the Tribunal has committed an error in fixing only 15% of negligence on the part of the claimants and ought to have fixed at 60%. On the other hand, the contention of the claimants is that without any material on record, the Tribunal has fixed 15% of negligence on the part of the claimants. In support of his contention, he also relied on the decision of the Division Bench of this Court in P.S. Somaiah's case and unreported decision of the Division Bench of this Court in MFA.No.10770/2010 and connected cases. The facts and circumstances of the case also has to be taken note of while fixing the contributory negligence. It is important to note that when the contributory negligence 32 is pleaded by the parties, there must be evidence. The Apex Court in the decision reported in 2014(4) SCC 511 [Meera Devi and another .vs. Himachal Pradesh Road Transport Corporation and others] has held that reduction of compensation on the ground of contributory negligence by High Court was unjustified and held that evidence must be adduced and the same must be relevant for consideration and it is irrelevant that the rider of the two wheeler was under
aged to drive two wheeler. In the case on hand, the main contention of the claimants' counsel is that the bus which had come from the opposite direction had dashed against the motor cycle in which they were proceeding. Admittedly, though they have contended that only two persons were proceeding on the motor cycle, the FIR clearly discloses that three persons were proceeding on the motor cycle. That itself is sufficient to come to the conclusion that there is contributory negligence on the part of the claimants. Further, the 33 Tribunal in para 8 of the impugned judgment while discussing the issue with regard to the negligence is concerned has observed that, on the other hand, the oral evidence of P.Ws.1 and 2 who are not only injured but also direct eye witnesses to the occurrence of this accident coupled with police records particularly Ex.P2 charge sheet very clearly disclose that, the petitioners in these claim petitions along with another by name Smt. Netravathi were proceeding on motor cycle on Gowribidanur-Bangalore road, near Welcome Board lying at some distance from Gowribidanur town limits towards Bangalore, the APSRTC bus bearing No.AP-28- Z-928 violently came in high speed from opposite direction and dashed against their motor cycle and as a result of this impact, the petitioners were thrown on the road resulting in very grievous injuries as per Exs.P5 and P12 wound certificates respectively. However, the evidence placed on record does not indicate that the APSRTC bus dashed against motor cycle when the 34 petitioners were chatting with each other near Bangalore Circle in Gowribidanur Town. The evidence adduced on record clearly discloses that there were three persons that too during night hours, traveling on the motor cycle. The possibility of the fact that, this attitude may have led towards occurrence of this accident, cannot be ruled out. Therefore, the rider by triple riding the motorbike and the pillion riders by travelling on the motorbike in excess of its seating capacity, have contributed their negligence towards occurrence of this accident. Their such contribution towards occurrence of this accident may be atleast to the extent of 15% each and the remaining 85% due to rash and negligent driving of the driver of APSRTC bus. Thus, the Tribunal has come to the conclusion on contributory negligence on the ground that they were proceeding on triple riding in the late night and also come to the conclusion that they have contributed their negligence. While considering contributory negligence, 35 there must be positive evidence before the Court and it must be proved by the party who takes up the said contention. In the case on hand, the APSRTC has examined one witness as RW1 who has deposed that he was in the bus at the time of accident as a spare driver and he witnessed the accident and that the accident was on account of negligence on the part of the claimants. Here it has to be noted that nowhere in the police records the presence of the witness who has been examined before the Tribunal as RW1 is forthcoming. He claims that he was present at the spot at the time of the accident. He has deposed that the bus was not involved in the accident. It clearly discloses that he has deposed falsely before the Tribunal and there is no explanation with regard to the damage caused to the bus that too the right portion of the bus. If really he was present, he should have explained as to how the damage was caused to the bus, same has not been done. Furthermore in the cross-examination of RW1 a 36 specific question was put to him that he was not an employee of APSRTC. When such question was put, the APSRTC has not made any efforts to prove that he was an employee of APSRTC and was working as a spare driver on the date of the accident. The Tribunal has also not considered the evidence of RW1. The Tribunal is carried away with the material available before the Court that they were proceeding on triple riding and hence, they have contributed for the contributory negligence, which cannot be sustained for the reason that it is duty cast upon the Tribunal to give a definite finding whether the claimants have contributed for the accident. The said findings cannot be on surmises and there must be positive evidence and if the APSRTC had examined the driver who was driving the bus then there would have been some force in the contention of the APSRTC. The driver of the bus has not been examined before the Tribunal and whereabouts of the driver is also not known and hence, they have examined the 37 spare driver. The Tribunal without considering the evidence of RW1 has come to the conclusion of contributory negligence only on the guise that they were proceeding triple riding, which cannot be a ground to fix the contributory negligence on the claimants. Apart from that, I have already pointed out that the head light on the right portion of the bus was damaged. There is no explanation to the damages caused to the bus. It is the specific case of the claimants that the driver of the bus came in a high speed and dashed against the motor cycle. The mahazar clearly discloses the place where the accident has occurred and that the rider of the motor cycle was proceeding on the left side of the road. When such being the case, I do not find any grounds to fix the contributory negligence to the extent of 60%. Without considering the material on record, the Tribunal has fixed contributory neglignce on the part of the claimants to an extent of 15%. Having discussed in detail and evidence available on record more 38 particularly P.Ws.1 and 2 and also RW1 and the documentary evidence namely IMV report and spot mahazar, I am of the opinion that the Tribunal has committed an error in fixing the contributory negligence on the part of the claimants to an extent of 15% and the same requires to be set aside and accordingly, set aside.
16. The appellant/claimant in MFA.No.7039/2010 has contended that the quantum of compensation awarded by the Tribunal is on the lower side.
17. On the other hand, the counsel for APSRTC has contended that the compensation awarded by the Tribunal is on the higher side.
18. In the present case on hand, the claimant has produced the driving licence at Ex.P.9. As per wound certificate-Ex.P.5, the claimant sustained the following injuries:
1. Suture wound over right eyebrow 3 cms.,
2. Sutured wound over the left eyebrow 3 cms., 39
3. Abrasion present over forehead 3x3 cm.,
4. Hemotoma of both eyes and presence of blood clot in both nose,
5. Upper two incisor teeth are missing,
6. Abrasion with swelling of lower lip 1x1 cm.,
7. Sutured wound over right leg anterior sintece 4 cms with tenderness and abnormality FRACTURE OF BOTH BONES UPPER 1/3RD RIGHT LEG,
8. Bruises over right knee joint.
As per wound certificate, Sl.Nos.5 and 7 injuries are grievous in nature and remaining other injuries are simple in nature.
19. The claimant examined the doctor as P.W.6 who assessed the permanent physical disability at 38% to right lower limb and 19% to the whole body and also deposed that the fractures are united. The claimant also lost two teeth during the accident. P.W.4 who is a dental surgeon has assessed 40% physical disability to the whole body due to dental and skeletal disability, but in his evidence he has stated that the said disability will not come in the way of earning capacity. The Tribunal has taken the disability at 25% by coming to the 40 conclusion that he is unable to continue his job as a driver. In the case on hand, the claimant sustained only the injury of fracture of both bones of upper 1/3rd right leg and the doctor who was examined as P.W.6 in his evidence has deposed implants and screw are fixed in right lower limb and further stated that the claimant requires one more surgery for removal of such implants. While fixing the disability at 25% there must be an evidence. Hence, the Tribunal ought to have taken the disability at 13% as rightly pointed out by the counsel for APSRTC.
20. Now, with regard to income is concerned, as the accident of the year 2007, the Tribunal has taken the income at Rs.4,000/- per month, which is correct. In the case on hand, when a skilled person having driving licence, the Tribunal ought to have taken the income little higher side. Considering the driving licence 41 produced by the claimant, it is appropriate to take the monthly income at Rs.5,000/-.
21. On perusal of the judgment and award, the Tribunal has awarded Rs.35,000/- under the head pain and suffering. As the accident is of the year 2007 and the claimant sustained the fracture of both bones of right leg and also for missing two teeth, I am of the opinion that the compensation awarded under the head pain and suffering is just and proper and there is no ground to interfere with the same.
22. Rs.24,000/- is awarded by the Tribunal under the head loss of income during laid up period. Taking monthly income at Rs.5,000/- and taking treatment for a period of six months, it is just and proper to award Rs.30,000/- as against Rs.24,000/- awarded by the Tribunal. With regard to loss of future income due to disability is concerned, the Tribunal has taken the disability at 25%, which has been reduced to 13%. 42
23. The fractures are only in respect of both bones of right leg and as the fractures are united, considering the income at Rs.5,000/-, the compensation under the head loss of future income due to disability comes to Rs.1,40,400/- (Rs.5,000/- x 12 x 18 x 13%).
24. The Tribunal has awarded Rs.10,000/- under the head loss of happiness and future amenities. As the claimant is aged 27 years and sustained fracture of both bones of right leg and loss of two teeth and as he has to lead rest of his life with the disability of 13%, it is just and proper to award Rs.40,000/- under the said head as against Rs.10,000/- awarded by the Tribunal.
25. The claimant has produced the medical bills and medical prescriptions at Exs.P.10 and 11, which discloses that he has spent Rs.10,473/- for his treatment. Considering the said documents, the Tribunal has awarded Rs.25,000/- under the head 43 medical expenses including food and nourishment, attendant charges, conveyance charges and other incidental expenses, which is just and proper and there is no ground to interfere with the same.
26. The Tribunal has awarded Rs.25,000/- under the head future medical expenses, which is just and proper and there is no ground to interfere with the same. In all, the claimant is entitled to Rs.2,95,400/- as against Rs.3,11,000/- awarded by the Tribunal.
27. The appellant/claimant in MFA.No.7365/2010 has contended that the quantum of compensation awarded by the Tribunal is on the lower side. The claimant has produced the driving licence at Ex.P.16.
28. As per wound certificate- Ex.P.12, the claimant sustained the following injuries:
1) Sutured wound over right eyebrow 2 cms.
2) Sutured wound over right eyebrow 4 cms.
3) Punctured wound over right thigh with deformity lenite abnormal mobility. 44
4) Deformity of right knee joint with tenderness and plateive over upper end of right tibia diagnosis fracture right tibia plateive,
5) Abrasion over right big toe 2,
6) Fracture mid 1/3rd shaft right remur.
7) Fracture right tibial plateive.
As per wound certificate, except Sl.Nos.1 and 2 injuries, all other injuries are grievous in nature.
29. The contention of the appellant/claimant is that the Tribunal has taken the income at Rs.4,000/- per month. The claimant was working as a driver and he has also produced the driving licence at Ex.P.16. The Tribunal has not taken the correct income while assessing the disability and contends that his income could have been taken at Rs.7,500/- per month.
30. The claimant examined the doctor as PW.5, who assessed the disability at 85% to the right lower limb and 43% to the whole body. P.W.5 has also deposed in his evidence that the claimant has to undergo one more revision amputation operation at hip 45 joint level under going disarticulation and in that event, disability would be 95% to the right lower limb. Hence, the Tribunal at paragraph No.28 has come to the conclusion that in the matter of payment of compensation under the head loss of future earnings, the physical disability has no relevance and it has to be decided with reference to avocation of the injured and considering amputation of right leg above knee, it is held that he is totally useless to do any job including his occupation as a driver. Hence, the Tribunal taken the disability at 100%.
31. On the other hand, learned counsel for the respondent-APSRTC contends that the Tribunal has rightly taken the income at Rs.4,000/- per month, since the accident is of the year 2007 and there are no grounds to interfere with the order of the Tribunal. No doubt, the claimant has not produced any documentary proof with regard to income that he was earning 46 Rs.7,500/-. As the accident is of the year 2007, as the claimant is a skilled labourer and driving licence is produced before the Court, the Tribunal ought to have taken the monthly income at Rs.5,000/-.
32. The counsel relied upon the judgment relating to an amputation to a driver, where the Court has taken the disability at 100%. The Court while considering the case of the claimant has to take note of the incapacity of a person and when he has produced the driving licence, the Tribunal has to take note whether he is able to discharge his duty as a driver or not. Admittedly, in the present case on hand, there is no dispute that right leg was amputated above the knee. The claimant is also before the Court and amputation of right leg above the knee is also not disputed. When the claimant was discharging his duty as a driver as he is a skilled labourer, due to amputation of right leg above the knee, he cannot do the work as earlier. However, the counsel 47 for APSRTC contends that he can do some other work. There is force in the submission that he can do some other work, but not as a driver. When he is a skilled labourer and there is a driving licence, I am of the opinion that the Tribunal has not committed any error in taking the disability at 100%. The Court has to appreciate the functional disability and not the permanent physical disability as deposed by the doctor. No doubt, the doctor assessed the disability at 85% to the right lower limb and 43% to the whole body and when the functional disability is taken at 100%, compensation awarded by the Tribunal is not exorbitant.
33. The counsel for the APSRTC has brought to my notice the decision of this Court in Vittal Poojary's case, wherein it is held that taking 100% disability is not correct. It is also contended that under Workmen's 48 Compensation Act, the disability should be taken only at 60%.
34. On the other hand, the counsel for the claimant has relied upon the decision of the Hon'ble Supreme Court in the case of Syed Sadiq, where the injured suffered amputation of right leg due to right femur and that the appellant/claimant had suffered disability of 24% to upper limb and 85% to lower limb. The Tribunal, however, had considered the disability of the appellant/claimant caused to whole body at 30%. The High Court, however, taking into consideration the amputation of the right leg of the appellant/claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in assessing the disability at 65%. In the present case on hand, the amputation is above the knee and in the Syed Sadiq's case as there was an 49 amputation of right leg, 65% disability was taken and functional disability is taken at 85% in respect of lower limb, which has been amputated and upper limb has not been amputated. Hence, I am of the opinion that the contention raised by the APSRTC that the decision of the Division Bench of this Court has to be considered cannot be accepted.
35. The Apex Court in the case of Syed Sadiq and also in the case of Sanjay Kumar Vs. Ashok Kumar and Another reported in (2014) 5 SCC 330, has not only taken 85% disability, but also added future prospects.
36. In view of the principles laid down by the Apex Court in the above cases, this Court has to take future prospects for a person who has suffered 100% disability.
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37. At this juncture, the counsel for APSRTC contends that 1/3rd income has to be deducted. The said contention cannot be accepted for the reason that the claimant has suffered 100% disability. As the claimant was working in an unorganized sector, 40% towards future prospects has to be taken. Hence, the compensation under the head loss of future income comes to Rs.15,12,000/- (Rs.5,000/- + 40% = Rs.7,000/- x 12 x 18 x 100/100).
38. On perusal of the judgment and award, the Tribunal considering the nature of injuries sustained by the claimant and the period of 389 days of hospitalization as his leg was amputated, has awarded compensation of Rs.80,000/- under the head pain and agony, which is just and proper and there is no ground to interfere with the same.
39. The Tribunal has awarded Rs.20,000/- under the head loss of happiness and future amenities. When 51 a person lost his right leg that to above the knee and he has to lead rest of his life with the functional disability of 100%, the Tribunal has lost sight of the same and awarded only Rs.20,000/-. Hence, it is just and proper to award Rs.1,00,000/- as against Rs.20,000/- awarded under the said head.
40. The Tribunal has awarded Rs.1,16,000/- under the head medical expenses including extra food for nourishment, attendant charges, conveyance charges and other incidental expenses, which is just and proper and there is no ground to interfere with the same.
41. The Tribunal has awarded Rs.20,000/- under the head loss of marriage prospects and shortening of life. As the claimant was aged 25 years as on the date of the accident and suffered 100% disability, it is just and proper to award Rs.75,000/- as against Rs.20,000/- awarded under the said head.
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42. The Tribunal has awarded Rs.20,000/- under the head future medical expenses towards purchase of artificial limb. The claimant has not adduced any evidence before the Tribunal with regard to cost for artificial limb and amputation of right leg above the knee is also not disputed. When the claimant intends to purchase an artificial limb, the Tribunal cannot restrain him. Hence, it is just and proper to award Rs.75,000/- as against Rs.20,000/- awarded under the said head. In all, the claimant is entitled to Rs.19,58,000/- as against Rs.11,20,000/- awarded by the Tribunal.
43. In view of the above discussion and also reconsidering the material on record, MFA.Nos.7365/2010 and 7039/2010 filed by the claimants are partly allowed. The judgment and award passed by the Tribunal is modified. Fixing of contributory negligence on the claimants to the extent of 15% is hereby set aside and in MFA.No.7039/2010, the 53 compensation is reduced to Rs.2,95,400/- from Rs.3,11,000/- awarded by the Tribunal, with interest @ 6% p.a. and excluding interest on the future medical expenses and in MFA.No.7365/2010, the compensation is enhanced to Rs.19,58,000/- as against Rs.11,20,000/- awarded by the Tribunal, with interest @ 6% p.a. and excluding interest on the future medical expenses.
MFA.No.7939/2010 filed by APSRTC is partly allowed. MFA.No.7938/2010 filed by APSRTC is hereby dismissed.
Amount in deposit be transmitted to the Tribunal for payment.
Sd/-
JUDGE *alb/PB