Karnataka High Court
The Managing Director vs Sandeep K H on 1 February, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 1074 of 2018
C/W MFA No. 8005 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 1074/2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8005/2017 (MV)
IN MFA NO.1074/2018
BETWEEN:
1. SANDEEP K.H.,
S/O K.R. HEMA REDDY,
AGED ABOUT 21 YEARS,
B.E. STUDENT,
R/O HAIKAL VILLAGE
TURUVANUR HOBLI,
CHITRADURGA TALUK-577501.
...APPELLANT
Digitally signed (BY SRI SPOORTHY HEGDE N.,ADVOCATE)
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
AND:
1. V.UMESHA
MAJOR,
DRIVER OF KSRTC BUS
BEARING REG. NO. KA-17/F-1342
CHALLAKERE KSRTC DEPOT,
CHALLAKERE-577522.
2. DEPOT MANAGER
KSRTC, CHALLAKERE KSRTC DEPOT,
CHALLAKERE-577522
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MFA No. 1074 of 2018
C/W MFA No. 8005 of 2017
3. THE MANAGING DIRECTOR
KSRTC, DAVANAGERE DIVISION
DAVANAGERE-577002.
...RESPONDENTS
(R1 - NOTICE DISPENSED WITH V/O DATED 18.02.2021
BY SRI T.PRAKASH, ADVOCATE, FOR R2 AND R3)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.07.2017 PASSED IN MVC
NO.816/2015 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, ADDITIONAL MACT-4, CHITRADURGA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.8005/2017
BETWEEN:
1. THE MANAGING DIRECTOR
KSRTC, DAVANAGERE DIVISION,
DAVANAGERE.
2. THE DEPOT MANAGER
KSRTC, CHALLAKERE KSRTC
DEPOT, CHALLAKERE.
...APPELLANTS
(BY SRI. T PRAKASH, ADVOCATE)
AND:
1. SANDEEP K.H.
S/O K.R.HEMAREDDY,
B.E.STUDENT,
R/O HAIKAL VILLAGE,
TURUVANUR HOBLI,
CHITRADURGA TALUK.
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MFA No. 1074 of 2018
C/W MFA No. 8005 of 2017
2. V.UMESH
MAJOR, DRIVER OF KSRTC BUS
BEARING REG.NO.KA-17/F-1342
CHALLAKERE KSRTC DEPOT,
CHALLAKERE.
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE N, ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.07.2017 PASSED IN MVC
NO.816/2015 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MACT-IV, CHITRADURGA,
AWARDING COMPENSATION OF Rs.6,48,441/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No. 1074/2018 is filed by the claimant questioning attribution of 20% of negligence on the part of the claimant and also seeking enhancement of compensation. MFA No. 8005/2017 is filed by the Karnataka State Road Transportation (for short 'KSRTC') being aggrieved by attributing negligence at 80% on the -4- MFA No. 1074 of 2018 C/W MFA No. 8005 of 2017 driver of the KSRTC bus and for reducing the compensation.
2. Brief facts of the case are as under:
On 20.12.2014 at about 7.15 p.m. at Haikal village bus stand when the claimant was getting down from the bus after giving a letter to his brother Sanjay who was inside the bus in order to go to Chitradurga, at that time driver of the KSRTC bus bearing No. KA-17/F-1342 drove the same in a rash and negligent manner with high speed, which resulted in the claimant falling down from the bus and sustaining injuries. Immediately, he was shifted to hospital for treatment. He took treatment as an inpatient at various hospitals.
3. The claim petition was filed by the claimant seeking compensation. The Tribunal has partly allowed the claim petition attributing negligence on the part of the driver of the KSRTC bus and the claimant at the ratio of 80:20. It awarded compensation of Rs.6,48,441/- with -5- MFA No. 1074 of 2018 C/W MFA No. 8005 of 2017 interest at 6% p.a. from the date of petition till the date of realization. Being aggrieved by the same, the claimant as well as KSRTC have preferred the present appeals.
4. The learned counsel appearing for the claimant submitted that the driver of the KSRTC bus, rashly and negligently, without seeing the claimant who was in the process of getting down, moved the bus suddenly, therefore the KSRTC bus driver was rash and negligent to the extent of 100%. Further submitted that had the driver of the bus observed that the claimant was getting down from the bus, then the accident would have been avoided. Therefore, submitted the driver of the KSRTC bus was completely rash and negligent in driving the bus. Further submitted that the claimant is a Bachelor of Engineering student and therefore the income taken at Rs.7,500/- per month is on a lesser side, the claimant being pursuing Bachelor of Engineering course, the minimum income ought to have been at Rs.20,000/- per month. Therefore prays for enhancement of compensation awarded by the -6- MFA No. 1074 of 2018 C/W MFA No. 8005 of 2017 Tribunal on this ground. Further submitted that the percentage of disability held by the tribunal is also on the lower side. Further the compensation under several heads is on lower side. Therefore prays for enhancement of compensation by holding that the driver of the KSRTC bus was completely rash and negligent.
5. On the other hand, learned counsel for KSRTC submitted that the claimant was negligent while he had suddenly got down from the bus when the bus was moving without intimating the driver to stop the bus. When the claimant had suddenly got down from the bus without intimating the driver to stop the bus, therefore claimant is 80% negligent. It is further submitted that the compensation amount awarded by the tribunal is on the higher side. Therefore, for all these reasons he prays for reducing the quantum of compensation.
6. The Tribunal has awarded the compensation under various heads as follows:
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1 Loss of future earnings Rs 1,62,000/- 2 Medical Expenses Rs. 2,98,551/-
3. Nourishment and Miscellaneous Rs. 1,00,000/-
Expenses
4. Pain, Injuries and sufferings Rs. 50,000/-
5. Loss of amenities, enjoyment of Rs. 1,00,000/-
life and discomforts
6. Loss of one year education Rs. 1,00,000/-
Total Rs. 8,10,551/-
After deducting 20%/-, the claimant was awarded a total compensation of Rs.6,48,441/-.
7. Upon considering the rival submissions and on perusal of the evidence on record, it is proved that the claimant was not traveling in the bus and also he was not a passenger in the bus by purchasing ticket. In the complaint it is stated that his elder brother was going to Chitradurga and he had to give him one letter to take along with him, therefore the claimant had rushed to the bus stop and got into the bus for giving letter to his brother and after giving the letter he got down from the bus, but at that time the bus was moving. These facts are clear from the complaint as well as from the cross- -8- MFA No. 1074 of 2018 C/W MFA No. 8005 of 2017
examination of the claimant. In the course of cross- examination the claimant has stated that the bus moved 4 to 5 feet further from the bus stop and at that time claimant had got down from the bus. There is no evidence from the claimant that while getting down from the bus he had requested the driver to stop the bus. Therefore this incident has occurred within a few seconds when the claimant had alighted the bus to give a letter to his brother. Immediately he rushed to the front door and at that time the bus was moving and in the process of getting down from the bus, the claimant fell down and sustained injuries. However, on consideration of these factors revealed in the evidence it is proved that the claimant was also negligent. The learned counsel for the claimant placed reliance on the judgment of the Kerala High Court in the case of Mukkathil Bhaskaran vs Ravindran and Others reported in II (1990) ACC 68. He also placed reliance on the judgment of the Rajasthan High Court in the case of Makbool Ahmed and Others vs Bhura Lal and Others reported in AIR 1986 Rajasthan 177. -9- MFA No. 1074 of 2018 C/W MFA No. 8005 of 2017 Upon considering the facts and circumstances stated in the above decisions, they are different from the present case. No doubt it is the duty on the part of the driver and conductor of the bus to observe whether any person is getting down from the door. But when the claimant had suddenly moved towards the door and tried to get down from the moving bus, it also shows negligence on the part of the claimant. These facts constitute difference in the above stated judgments. Hence, they are not applicable.
8. The trial court has correctly appreciated the evidence on record by holding that the claimant is also negligent for causing of the accident. But, the apportionment of negligence is not correct considering the scenario and circumstances of the accident. There is no evidence to show that whether door panels were fixed to front door of the bus. Whatever may be, the claimant before coming to the footboard, he ought to have noticed at that time the bus was moving. Even though the bus had stopped, the bus started to move and went about 4 to
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017 5 feet ahead and when it is observed by the claimant, then the claimant could have requested the driver of the bus to stop the bus so as to get down from the bus. But there is no evidence on the part of the claimant that he had requested/instructed the driver to stop the bus. The fact remains that from moving bus the claimant got down from the bus and fell down and sustained injuries. Therefore the apportionment made by the Tribunal at 80:20 between driver of the bus and the claimant is not correct. Therefore, the apportionment of negligence on the part of the driver of the bus and the claimant could be held in the ratio of 70:30 respectively. Claimant has attributed 30% negligence to the accident and driver has contributed 70% of negligence. Accordingly, the ratio of rash and negligent act of the driver and claimant are apportioned as stated above.
9. From the evidence of doctor-PW2, wound certificate, x-rays, case sheet, disability certificate,
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017 discharge summary, photographs, it is proved that the claimant had suffered the following injuries : -
(i) (L) hip dislocation with fracture of the head of (L) femur,
(ii) fracture of bilateral inferior pubic rami
(iii) fracture of (L) iliac bone and diastasis of (L) SI joint.
The above injuries suffered by the claimant are grievous in nature. Therefore, the amount of compensation awarded under the head "pain, injuries and sufferings" is found to be correct.
10. PW2 is not the treating doctor. One doctor from Manipal Hospital has given treatment to the claimant and issued the disability certificate by stating that the claimant has suffered 28% of locomotor disability. PW2 has stated that the claimant has suffered disability of 45% to a particular affected left lower limb. The evidence of PW2 regarding percentage of disability is found to be on higher side. The treating doctor is not examined, but he has
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017 given certificate as per Exs.P18 and 19 and has stated that the claimant has suffered 28% locomotor disability. Therefore, the tribunal is correct in assessing the percentage of functional disability at 10%.
11. Learned counsel for the claimant submitted that the notional income taken by the Tribunal is on the lower side, it ought to have been taken as Rs.20,000/- per month. He placed reliance on the judgment of this court wherein in the case of Bachelor of Engineering students, income of Rs.15,000/- to Rs.20,000/- is taken. But, in the present case, the claimant was aged 18 years and was doing his I year Engineering course. The claimant had just passed PUC and got admitted to the Bachelor of Engineering course. Under these circumstances, the notional income cannot be taken either at Rs.15,000/- or Rs.20,000/-. Further more it is revealed that the claimant has continued the Engineering course and by this time he has completed Bachelor of Engineering graduation. Perhaps there might have been loss of studies for a period
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017 of few months and therefore there would not be any loss of education, if at all whatever the loss it would be only for few months that too negligence is on the part of the claimant as observed above. Therefore in the absence of proper income, notional income at Rs.8,500/- per month is taken as recognized by the Karnataka State Legal Services Authority. Applicable multiplier is '18'. Disability is taken as 10%. Therefore, loss of future income due to disability is re-assessed and quantified at Rs.1,83,600/- (Rs.8,500/- x 10/100 x 18 x 12).
12. The claimant was an inpatient in the hospital for 15 days. He has taken treatment in Manipal Hospital and has undergone surgeries and, internal fixations were also fixed. For continuous period of two years he was going to hospital. Therefore, the apportionment of compensation of Rs.1,00,000/- for incidental expenses such as transportation, nourishment, food, conveyance, etc., is found to be correct. Accordingly, it is kept in tact.
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017
13. Compensation of Rs.1,00,000/- under the head "loss of amenities" is found to be correct.
14. The Tribunal has granted compensation of Rs.1,00,000/- towards "loss of one year education", but that is taken care of by the compensation granted under the head "loss of future earnings". The claimant has completed Bachelor of Engineering graduation. Therefore, the amount granted under the said head is set aside.
15. Claimant has suffered loss of marriage prospects. Compensation of Rs.75,000/- is awarded under the head "loss of marriage prospects in life".
16. Thus in all the claimant is entitled to the compensation as follows:-
1 Loss of future earnings Rs 1,83,600/- 2 Medical Expenses Rs. 2,98,551/-
3. Nourishment and Miscellaneous Rs. 1,00,000/-
Expenses
4. Pain, Injuries and sufferings Rs. 50,000/-
5. Loss of amenities, enjoyment of Rs. 1,00,000/-
life and discomforts
6. Loss of marriage prospects Rs. 75,000/-
Total Rs. 8,07,151/-
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MFA No. 1074 of 2018
C/W MFA No. 8005 of 2017
17. The claimant is entitled to the compensation as determined above. As held above, the claimant is held to be 30% negligent towards the accident. Therefore, after deducting 30% (i.e., Rs,2,42,145/-) from Rs.8,07,151/-
the claimant is entitled to a total compensation of Rs.5,65,006/- along with interest at the rate of interest at 6% p.a.a from the date of petition till realization.
18. Accordingly, I pass the following:
ORDER
(i) Appeals filed by the KSRTC and the claimant are allowed-in-part in terms stated above.
(ii) The impugned judgment and award dated 6.7.2017 in MVC.No.816/2015 passed by the I Additional Senior Civil Judge and Additional MACT-IV, Chitradurga, is modified to the extent that the claimant is entitled to compensation of Rs.5,65,006/- along with the rate of interest at 6% per annum from the date of petition till the date of realization.
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MFA No. 1074 of 2018C/W MFA No. 8005 of 2017
(iii) The entire compensation shall be released in favour of the claimant as per law.
(iv) No order as to costs. (v) The amount in deposit is ordered to be
transferred to the Tribunal forthwith, along with TCR and a certified copy of this order.
(vi) Draw award accordingly.
Sd/-
JUDGE
CKL
List No.: 1 Sl No.: 4