Karnataka High Court
Karnataka State Road Transport ... vs K.Chandrasekhara Raju on 5 November, 1997
Equivalent citations: 1999ACJ1462, 1998(5)KARLJ43, 1998 A I H C 4042, (1998) 5 KANT LJ 43 (1999) 2 ACJ 1462, (1999) 2 ACJ 1462
JUDGMENT
1. This appeal has been preferred by the Karnataka State Road Transport Corporation, Bangalore, from the Judgment and award dated 17th February, 1989, made by the Motor Accidents Claims Tribunal, Bangalore City, in M.V.C. No. 197 of 1986, awarding a sum of Rs. 2,34,000/- as the total compensation with interest at the rate of 9% per annum.
2. The facts of the case in brief are that the injured-claimant, who has been a student of B.Sc. 3rd year. On 15-8-1985, at about 9.15 a.m., he was going on his cycle from his residence at NIMHANS to his College, while, he was going near Lakkasandra, on Hosur Main Road from East to West on the left side of the road, according to claimant's case, the B.T.S. Bus bearing No. MYF 5842, came from opposite side in a rash and negligent manner and dashed against the petitioner, as a result of which the petitioner fell down, sustained grievous injuries and was immediately taken to NIMHANS. The claimant-respondent, the injured person remained unconscious for 6 or 7 days and sustained linear fracture of the skull of the parital and temporal bone. The claimant's case has been that he had suffered the difficulty caused by the injuries to the brain including the loss of memory, concentration, thinking and reasoning. It has been indicated that a police case had been registered against B.T.S. driver.
3. The claimant in the claim petition claimed the compensation to the tune of Rs. 4,85,500/-.
4. On notice being issued, the present appellant, that is, respondent in the claim petition filed the objection denying the averments made in the petition and denied that the driver of the Bus was driving the Bus in a rash and negligent manner. The present appellant, who was the respondent further took the plea that petitioner was riding the cycle in a great speed and became panicky and lost presence of hearing the horn of the bus and in that process, he began to ride in a zig zag manner. In that process, the cycle skidded off and rolled down on the road, as such, he sustained injuries. In the alternative, the present appellant-respondent asserted that the claim for compensation was excessive and exorbitant.
5. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
1. Whether the petitioner proves that the alleged accident took place on 15-8-1985 at about 9.15 a.m., near Lakkasandra on Hosur Road, Bangalore, due to rash and negligent driving by the driver of B.T.S. bus MYF 5842?
2. Whether the petitioner proves that he sustained injuries as stated and if so, to what compensation is the petitioner entitled?
3. What order?
6. The Tribunal after considering the material on record held that the accident in question which has caused injuries to the claimant, had been the result of rash and negligent driving of the B.T.S. Bus bearing No. MYF 5842 by its driver, namely, the driver of the B.T.S. Bus. It further found that injuries which had been caused to the claimant-respondent were grievous and it has been proved that petitioner suffered from deficits of memory and learning, especially for complex vision and verbal aspects. The Tribunal held that the clinching evidence clearly shows that the petitioner's career has come to an end, as the petitioner has been unable to concentrate and study for the April examination and the evidence further shows that he is not able to do any kind of work.
7. The Tribunal after consideration of the material and after recording the findings as above, awarded the compensation as under:
It awarded a sum of Rs. 1,92,000/-, for the loss of income. It further awarded Rs. 40,000/- for injury, pain and suffering etc. and a further sum of Rs. 2,000/- towards medical expenses, conveyance, nourishment etc. and damage to the cycle. Thus entitled, the Tribunal awarded a sum of Rs. 2,34,000/-, as compensation with interest at the rate of 9% per annum.
8. Having felt aggrieved from the order of the Tribunal, the K.S.R.T.C. has come up in appeal before this Court under Section 110-D of the Motor Vehicles Act, 1939.
9. I have heard the learned Counsel for the appellant Sri K.S. Sreekanth and Sri Nagaiah, learned Counsel for the respondents at length. The learned Counsel for the appellant Sri Sreekanth, firstly, urged that there was contributory negligence on the part of the injured and the finding to the effect recorded by the Tribunal that there was sole negligence on the part of the appellant's driver is incorrect. The learned Counsel emphasised that there is no evidence led on the part of the K.S.R.T.C., even the driver of the K.S.R.T.C. bus, who has been an employee of the present appellant has not been produced.
10. The Tribunal has considered sketch map of the spot. It has observed, that the sketch also very clearly shows that the B.T.S. Bus had gone on extreme right side. The Tribunal therefore, relied on the evidence of the petitioner that in order to overtake other lorry, the bus driver had gone to the extreme right side and then, hit the petitioner-respondent. The Tribunal further recorded this finding on the basis of adverse presumption arising from the failure of the Karnataka State Road Transport Corporation to examine the driver of the bus which had caused accident. The driver of the bus has been the employee of the appellant. It was the duty of the Corporation to have examined him in support of his case and ought to have put him for cross-examination, but the appellant-K.S.R.T.C., for no rhyme or reason, did not examine the driver of its bus, there being no explanation furnished for his non-examination, in such circumstances, in my opinion, the Tribunal was justified in raising the adverse inference of presumption against the Karnataka State Road Transport Corporation, under Section 114 of the Evidence Act.
11. It is one of the trite principle of law that, if a party has got the material evidence which could have thrown light on the subject-matter of dispute being oral or documentary, but it does not produce it which it could have produced, but it had not produced, without any specific cause or explanation being furnished for non-production thereof, it is open to the Courts or Tribunals to raise adverse presumption against the party withholding the evidence. Reference in this connection may be made to following decisions of Hon'ble Supreme Court as well as of Privy Council:--
Gopal Krishanji Kettikar v Mohamed Haji Latlf, E. Lakshmamma v V. Chinna Malta Reddy, Lachman Utamchand Kirpalani v Meena alias Mota, Mehraj Singh v State of Uttar Pradesh and Murugesam Pillai v Gnana Sambandha Pandora Sannadhi .
12. Thus considered, in my opinion, the Tribunal was justified and correct in opining and holding that the cause of accident was exclusively the rash, negligence and negligent driving of the K.S.R.T.C. Bus in question by its driver. The finding of the Tribunal as such, does not suffer and cannot be said to suffer from any error of law or error of fact. The said finding is hereby affirmed and the contention of the learned Counsel for the appellant is rejected as without being substance.
13. The learned Counsel for the appellant further contended that the compensation awarded is excessive. In the matter of awarding compensation for injuries caused to the injured and the resultant disabilities therefrom, the Tribunal has no doubt, to take into consideration apart from other factors, the factor of misery and other disabilities resulting from accident which the person may have to carry on for his whole life. In the case of death by accident, the person who gets the compensation is the legal heir of the deceased, but the deceased is not to carry on the misery for the whole life, but in case of person injured fatally resulting in deficiency and disablement, the person has to carry the misery and the consequence of injuries for his whole long life and in such cases, we have to be considerate and liberal in the matter of granting compensation, may not be said to be true compensation, even though it is made to compensate the person as far as possible.
14. Here, the person has been an young man at the time of occurrence, who was aged about 29 years, he was a student of 3rd year B.Sc. (Nursing). He was going on the date of occurrence from his residence to the college. Having been injured seriously, he had to discontinue his studies, on account of the fact that he lost the memory which is needed to complete his course, so his future prospects have become blurred. The injuries which have caused rendered him unconscious for 6 or 7 days and he was hospitalised for 22 days. The respondent-petitioner (injured) sustained head injury. He also sustained injury on the parital region and another injury on his right zygomatic arch, blood was oozing out through ears and nose and the brain fluid was coming out through ears and nose.
15. The Tribunal has referred the evidence of the doctor. According to the doctor, there were two injuries, namely, lacerated wound over the parital region on the right side measuring 1" x l-1/4" bone deep and another wound over the right zygomatic arch. The petitioner's brain injury was in the form of cerebral contusion. According to the doctor, the petitioner had sustained grievous injuries and the computerised tomography had shown blood clot in the left temporal lobe. The doctor has said that inspite of treatment, the injured had not been totally improved. He is having memory and learning deficits, especially for complex vision and verbal aspects, no doubt, doctor has stated that there had been some improvement to the extent of 60 to 70 per cent. Doctor has stated that according to C.T. scanning, there is damage to the temporal lobe which serves the function of the memory and whenever there is complaint of loss of memory, the psychological test would be conducted. The doctor has stated that latest test done on 25-5-1987, reveals that the patient had got the moderated impairment of delayed response learning, complex vision and verbal learning and memory was moderately impaired.
16. Looking into the circumstances of the case and material available on record, the Tribunal has awarded a sum of Rs. 40,000/-, for injury, pain and suffering. The injured had been in the hospital for 22 days. I think the proper compensation under the head of injury, looking to the grievous nature of injury and the length of treatment that is, claimant had been hospitalised for 22 days would have been Rs. 30,000/-. The compensation awarded under this head as Rs. 40,000/-, is modified to Rs. 30,000/-.
17. The claimant had to suffer disability resulting in loss of employment and the earning capacity, in my opinion, the compensation which has been awarded assessing the loss at the rate of Rs. 12,000/- per year cannot be said to be excessive. The Tribunal has applied the multiplier of 16 in arriving to the conclusion that the loss under this head can be compensated by awarding Rs. 1,92,000/-. I do not think that there is anything wrong on the part of the Tribunal in assessing the compensation under this head at Rs. 1,92,000/-. The compensation of Rs. 2,000/-, that has been awarded with reference to medical expenses, conveyance, nourishing and damage to cycle might have been taken into consideration for enhancement, had the claimant filed a cross objection, but as no cross objection has been filed, it is maintained at Rs. 2,000/-. This is one of the factors that has struck in my mind in not reducing the compensation awarded under the head of loss of future prospects and earning to the tune of Rs. 1,92,000/-. Thus considered, in my opinion, the appeal deserves to be allowed in part and the award is modified only with reference to award of compensation under the head pain and injury which is assessed to the tune of Rs. 30,000/-, instead of Rs. 40,000/- and is as such, reduced to Rs. 30,000/- and thus, the compensation as modified will stand as under.--
For injury, pain and suffering Rs.
30,000/-
For medical expenditure, nourishment and damage to the cycle as awarded by the Tribunal Rs.
2,000/-
For loss of prospects in life etc. Rs.
1,92,000/-
Thus, the total compensation to which the petitioner entitled is hereby declared to be Rs. 2,24,000/- and not Rs. 2,34,000/-.
18. The total compensation is reduced by Rs. 10,000/-, only and it is held that the claimant is entitled to get the total compensation of Rs. 2,24,000/-, with interest as awarded by the Tribunal at the rate of 9% per annum. Thus, this appeal is partly allowed. Respective costs of the appeal are to be borne by the parties themselves respectively.