Karnataka High Court
North West Karnataka Road Trans. Corpn. vs Krishnappa Hanamantappa Bhandi And ... on 4 November, 2003
Equivalent citations: 2004ACJ1048, 2004 AIR - KANT. H. C. R. 254, 2004 AIHC 951 (2004) 2 ACJ 1048, (2004) 2 ACJ 1048
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. The appellant North West Karnataka Road Transport Corporation who has called in question the judgment and award dated 6.2.2003 made in M.V.C. No. 17 of 1997, on the file of the court of the Civil Judge (Senior Dn.) and Additional Motor Accidents Claims Tribunal at Gadag (hereinafter for short 'the M.A.C.T.').
2. The facts of the case in brief are, one Krishnappa Hanamantappa Bhandi, an agriculturist boarded a passenger Tempo bearing the registration No. KA 25-6763 at Gadag on 14.12.1996 to go to Dundur. At about 9.30 a.m., when Tempo reached Ichal Halla Bridge on Gadag-Hubli Road, the bus bearing registration No. KA 26-F 103, owned and belonging to the appellant came in the opposite direction at a high speed, in a rash and negligent manner and dashed against Tempo. In the accident, the claimant-injured sustained grievous injuries to both his legs, right eye and other parts of the body. The injured was shifted to K.M.C. Hospital, Hubli and on advise, to Bambolgi Hospital, Hubli. The injured was an indoor patient for a period of one month in the said hospital. Thereafter, for further treatment, the injured was shifted to K.H. Patil Hospital, Hulkoti. As there was no perceptible cure, the injured continued the treatment. The injured-claimant instituted a claim petition which was registered as M.V.C. No. 17 of 1997. Before the M.A.C.T., respondents therein denied the case of the claimant-injured. The appellant herein while denying its liability to pay compensation had contended that bus was driven by an experienced driver slowly and cautiously observing all traffic rules and regulations and that it was Tempo driven at a high speed which dashed against the bus. It has been further contended that the driver of the bus made an attempt to avoid the accident, but failed in his efforts. On the basis of the pleadings of the parties, M.A.C.T. framed as many as five issues. The injured-claimant examined himself as PW 1 and examined three doctors as PWs 2, 3 and 4. As many as 244 documents were exhibited on behalf of the claimant, to sustain the claim. Respondents including the appellant herein did not adduce any evidence either oral or documentary. The M.A.C.T., on the basis of the material on record, both oral and documentary held that the bus belonging to the appellant was driven in a rash and negligent manner and was solely responsible for the accident. Though the claimant had sought for compensation of Rs. 5,00,000 with interest at 12 per cent per annum, M.A.C.T. awarded a total compensation of Rs. 4,94,000 with interest at 6 per cent from the date of petition till the date of payment. Being aggrieved of the said judgment and award, the owner of the bus has preferred this appeal.
3. We have heard learned counsel for the appellant and perused the impugned judgment and award.
4. The learned counsel for the appellant contends that the M.A.C.T. had committed a grave error both in law and facts while arriving at a finding of actionable negligence on the part of the driver of the bus belonging to the appellant. In addition, the counsel sought to contend that award of compensation of Rs. 4,94,000 was wholly unjust as claimant-injured had not established material facts by cogent evidence to sustain the claim.
5. For the purpose of decision-making the following three questions arise:
(I) Whether in the facts and circumstances of the case the finding of the M.A.C.T. to hold the driver of the bus guilty of rash and negligent driving could be sustained?
(II) Whether the award of compensation of Rs. 4,94,000 together with interest at 6 per cent per annum from the date of petition till date of payment is just and proper?
(III) If not, what order?
Point No. I:
6. It is not in dispute that the motor vehicles being Tempo belonging to the respondent No. 2 and insured with the respondent No. 3 and the bus belonging to the appellant herein involved in the accident. The date, time and place of the accident and the instantaneous death of the driver of Tempo are not in dispute. The question is whether both the drivers were responsible for the accident or solely on account of any one of the drivers of the motor vehicles. It is also not in dispute that claim petitions were instituted in M.V.C. Nos. 29 and 14 of 1997 arising out of the same accident.
7. When Tempo reached Ichal Halla Bridge on Gadag-Hubli Road, the driver of Tempo on seeing the bus driven at a high speed, signalled to the driver of the bus by switching on both the headlights of Tempo. The driver of the bus belonging to the appellant did not slow down, but drove the. bus at a high speed and dashed against Tempo. The certified copies of the F.I.R. and the complaint were produced and got marked as Exhs. P-1 and P-2 by claimant-injured. The respondents had no objection for marking of these documents. In Exh. P-2, the complaint lodged by the cleaner of Tempo at the earliest point of time, clearly indicates that the driver of the bus belonging to the appellant, drove the vehicle at a very high speed and dashed against Tempo. It may not be out of place to mention that the appellant in its statement of objections contended that it was the driver of Tempo who had driven Tempo in a rash and negligent manner, but, failed to substantiate the same by adducing independent evidence. In addition, the fact is that in the claim petitions (M.V.C. Nos. 27 and 14 of 1997) arising out of the same accident, the M.A.C.T. had answered the issue with regard to rash and negligent driving of the vehicles, by fastening the liability on the driver of the appellant's bus, which finding is final and binding on the appellant, is not in dispute.
8. The appellant cannot maintain different standards in each of the claim cases arising out of the very same accident in respect of the issue regarding actionable negligence. Be that as it may, the evidence of PW 1 still remains unchallenged that the claimant-injured, a passenger travelling in Tempo had witnessed the accident, but his testimony was at best a self-interested testimony, however, in the absence of any evidence lead in by the respondents in contradiction of the evidence of the claimant, the plea of respondents remained a plea only. The F.I.R. and the complaint, copies of which are at Exhs. P-1 and P-2 point out to the rash and negligent driving on the part of the driver of the appellant's bus. If according to the respondents, the driver of the bus was diligent and did not cause the accident, it was open for the appellant or the owner/driver of the bus to adduce evidence of the driver to substantiate the same. The finding of the M.A.C.T. that the driver of the bus was guilty of actionable negligence and had caused the accident, in the circumstances cannot be said to be perverse. We are not persuaded by the submissions of the learned counsel for the appellant to take a different view.
Point No. II:
9. Before answering this point, we must keep in mind certain principles evolved, accepted and approved by the Supreme Court, in the matter of award of damages. In awarding damages in personal injury cases, courts have held that compensation should be substantial and it should not be mere token damages. The award of compensation to the injured persons should be of such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. No award of money can possibly compensate a man and renew the shattered human frame. This court in the case of K. Jagannath Rai v. Gangarathna C. Bai, , one of us (S.R. Nayak, J.) speaking for the Bench held thus:
"In deciding the quantum of damages to be paid to a person for the personal injury suffered by him, the court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him."
This court in the case of Oriental Insurance Co. Ltd. v. Ullasini N. Kamble, 2001 ACJ 1797 (Karnataka), held thus:
"Under law, the claimants cannot be deprived of just compensation, even if it exceeds the amount of compensation claimed by them in the claim petition. Law imposes a liability on the Tribunals and courts to assess and award just compensation. The claimants themselves assessed at a lesser figure no doubt but, we find the just compensation to be awarded would be Rs. 9,00,000 (rupees nine lakh) in total. In this view of the matter, in our opinion, the claimants would be entitled to just compensation, namely, Rs. 9,00,000 in entirety."
10. The claimant-injured was an agriculturist and businessman aged about 44 years on the date of accident and earning Rs. 10,000 p.m. It is his case that due to the accident, he suffered fractures and other grievous injuries to his body causing permanent physical disability. It is on record that the claimant took treatment at different hospitals as an indoor patient. The claimant-injured had produced Exh. P-244 which is the wound certificate issued by the Government Hospital detailing the injuries sustained by the claimant. It is not disputed that the injured was at first admitted to Government Hospital, Gadag and thereafter, shifted to Shiva Krupa Hospital and Intensive Care Centre and thereafter, to K.H. Hospital, Hulkoti. The treatment having not cured, the injured was admitted to Manipal Hospital at Bangalore on 24.2.1998 and discharged on 11.3.1998. In the said hospital, he had undergone three operations. In order to prove the injuries, treatment and operations, PW 1 had examined three doctors, viz., Dr. Basavaraddi of District Hospital, Gadag as PW 2, Dr. Suresh M. Duggani as PW 3 and Dr. M.V. Achar as PW 4.
11. The deposition of PW 3 supports the case of the claimant, that the injured was brought on 14.12.1996 to the hospital with history of road accident and after first aid, he was referred to K.M.C. Hospital, Hubli, however, the injured had gone to Bambolgi Hospital and thereafter to K.H. Patil Hospital, Hulkoti. On 6.2.1998 the injured was admitted to K.H. Patil Hospital where four X-rays were taken and even after being operated upon, claimant had lost strength in both hands and legs and was not able to move about without support. The case-sheet maintained at K.H. Patil Hospital was marked as Exh. P-232 and X-ray films as Exhs. P-233 to P-236. In the cross-examination of this witness, it was elicited that the immobility of the patient was due to neurological problem due to the head injury and not due to the fracture of the left leg.
12. The evidence of PW 3 Dr. Suresh Duggani, Neurosurgeon, testified that the claimant was got admitted to Shiva Krupa Hospital on 14.12.1996 with history of the road accident and complaint of weakness in both lower limbs, and was an indoor patient for about three weeks. The daily expenses as an indoor patient was Rs. 300. The prescription slips issued by the hospital are marked as Exhs. P-61 to P-98, in relation to medicines that were purchased by the claimant as prescribed by PW 3. He has categorically stated that the claimant was not in a position to walk when he was discharged from the hospital. He had an attendant while at the hospital for treatment. PW 3 further testified that the claimant was diagnosed with thorax cord injury and doubted whether the claimant could walk as a normal person due to extensive injury to the spinal cord. PW 3 is said to have examined the claimant on 18.11.2002 on which date, he found him to be in same condition and opined that the claimant had suffered 90 per cent disability and there was no chance of his recovery. In cross-examination, he has denied the suggestion that on treatment, the claimant could improve. The M.A.C.T. rejected the opinion as regards 90 per cent disability of PW 3 but, however, accepted his version with regard to the medicines prescribed, treatment given and the fact of the claimant undergoing an operation.
13. The medical evidence of PW 4, Dr. Achar, throws light on the injuries sustained to the back, upper and lower part of the body of the claimant. This witness was working as Orthopaedic surgeon at District Hospital, Gadag. He is said to have examined the claimant who was 56 years of age on 8.2.2001 and directed him to a Neurosurgeon at Hubli. This witness had found that the claimant had weakness of both upper and lower limbs and that there was no active movement of the right lower limb; the claimant had lost grip of the right side more than the left side and there was no shoulder abduction movement beyond 90 degrees and movement was possible only with the assistance of grade 3 muscle strength. This witness opined that the disability of the whole body was 70-80 per cent. Exh. P-237, the disability certificate is said to be issued by him. PW 4 has examined three X-rays of thorax vertebrae and lumbar spine which show evidence of loss of spine process of thorax vertebrae, which according to the witness, was surgically operated with multiple abrasion fractures of thorax spine. The X-ray films were marked as Exhs. P-238 to P-240. The evidence of PW 4 is disbelieved by the M.A.C.T. on the ground that the witness had not examined the patient at any time prior to 8.2.2001.
14. The medical evidence adduced by the doctors did establish the fact that the claimant had suffered grievous injuries, was treated and had undergone three surgeries. Despite medical intervention and treatment, the claimant had not recovered, on the contrary, his condition deteriorated. The claimant had reached a stage where he had lost strength both in lower and upper limbs and was immobilized, requiring help of attendants to move him around. The weakness in the lower limb was attributed to the extensive injury that was caused to the spinal cord, as a result of the injury to the head. The neurological problem, therefore, was attributed to the impact claimant suffered to his head in the accident. Though this neurological problem and the extensive injury to the spinal cord did not find a place in the injury certificate issued by the Government Hospital at Exh. P-244, the evidence of PWs 2 and 3 together with medical records produced before the M.A.C.T. was a pointer to the fact that the claimant had in fact suffered grievous injury which was not noticed at the time of issuing injury certificate at Exh. P-244. The fact that the injured was given first aid at the District Hospital, Gadag and was advised to go to K.M.C. Hospital, Hubli was in itself sufficient to show that hospital at Gadag was not competent enough to handle the injuries sustained by the claimant. The medical evidence of claimant's hospitalisation at Bambolgi Hospital goes to show that he was being treated for the neurological problem. The M.A.C.T. has described the physical condition of the claimant, having noticed the same, while recording the depositions of PW 1. The M.A.C.T. states that claimant was not in a position to move and he had lost strength in both legs. The M.A.C.T. has recorded a categorical finding that physical condition of the claimant was not a make-believe or pretence. The loss of grip in both the lower limbs and weakness was quite apparent. The claimant had been rendered a cripple requiring attendants to assist in his daily routine. The claimant's physical frame had been battered and shattered and despite all possible treatment with the best of medical help, did not bring the claimant back to normalcy. The finding of the M.A.C.T. that on account of the accident, the claimant had suffered mentally, physically and financially cannot be said to be perverse or illegal, in the fact situation set out supra.
15. The claimant did not adduce any evidence to support the claim of monthly income from running a theatre or income from agricultural lands, but produced Exhs. P-241 to P-243, the ROR extracts. These documents supported the fact that claimant owned agricultural lands. Though PW 1 in his examination stated that his annual income from agriculture was more than Rs. 40,000, but was actually receiving Rs. 20,000 to Rs. 25,000, admitted in his cross-examination that he was getting the same income. The M.A.C.T. disbelieved the evidence of PW 1 on the question of his monthly earnings and estimated the same at Rs. 3,000. M.A.C.T. also assessed the disability of the claimant at 60 per cent. Though the claimant had showed his age as 44 in the petition, however, case-sheet maintained at K.H. Patil Hospital indicated the age of claimant as 52, while the records of Manipal Hospital showed his age as 55 years. M.A.C.T., therefore, took the age of the claimant to be 52 years and applied multiplier of 12 for the purpose of assessing loss of earnings. Having thus arrived at Rs. 2,59,200 being the loss of future earnings, awarded the same towards future loss of earnings and future economic loss. We do not find any infirmity in the assessment made by the M.A.C.T. and the calculation by taking the age of the claimant at 52 years and applying multiplier of 12 to arrive at Rs. 2,59,200.
16. The M.A.C.T. accepted the documents relating to the medical expenses incurred by the claimant which amounted to Rs. 1,52,000. Looking to the injuries sustained, the prolonged treatment and the permanent disability, it is quite possible that the claimant has spent Rs. 1,52,000 towards medical bills. In the absence of any contra evidence to prove that claimant had not expended the said sums of money, the finding of the M.A.C.T. that claimant was entitled to a total sum of Rs. 1,60,000 towards medical expenses, conveyance and incidental expenses towards boarding and lodging charges, nourishment and diet, is neither illegal nor excessive.
17. The M.A.C.T. has awarded a sum of Rs. 25,000 towards pain and suffering; another sum of Rs. 25,000 towards loss of amenities in life and Rs. 25,000 towards past and future attendant charges. The claimant having suffered injuries resulting in immobility, neurological problems and the period of treatment, surgeries, etc., certainly deserves to be compensated for pain and suffering. The award of Rs. 25,000 cannot be said to be unjust. Claimant being rendered a cripple has lost the benefits of a quality life and amenities, the award of Rs. 25,000 by the M.A.C.T. cannot be said to be on the higher side. Considering the fact that claimant requires constant assistance to attend on him for the rest of his life, a sum of Rs. 25,000 awarded by the M.A.C.T. in our opinion cannot be interfered with on the ground that it is on the higher side.
18. Though the claimant has sought for compensation of Rs. 4,20,000 in the claim petition, the M.A.C.T, has awarded Rs. 4,94,200 together with interest at 6 per cent per annum from the date of petition till realisation. Keeping in mind the well settled principles in awarding compensation, referred to in the case of K. Jagannath Rai v. Gangarathna C. Bai, and looking to the 'overall picture that matters' learned M.A.C.T. has assessed as best as it can be. Therefore, in our opinion, while considering the deprivation, the court should have regard to the gravity and degree of awareness and the degree of deprivation. In conclusion, we may not hasten to add that the M.A.C.T. has awarded the compensation which is just and reasonable and within the contemplation of the Act.
19. In the result and for the foregoing reasons, we dismiss the appeal at the stage of admission without notice to the respondents.
20. We hereby direct the Registry to transmit the sum of Rs. 25,000 in deposit before this court forthwith, to the M.A.C.T.