Karnataka State Road vs Gowramma

H.P. Sandesh, J

Though this appeal is listed for admission today, with the consent of learned counsel appearing for the appellant, the same is taken up for final

disposal.

This appeal is filed by the appellant/KSRTC., challenging the Judgment and Award dated 6.08.2013 passed in M.V.C.No.3/2012 on the file of the

District Judge, Member, MACT., at Chamarajanagar ('the Tribunal' for short), questioning the quantum of compensation awarded by the Tribunal.

The factual matrix of the case is that on 29.10.2011 at about 8:45 a.m, the petitioner was standing on the left side of the road near Mariyala in order

to go to the Rudset Samsthe of Mariyala, at that time, the driver of KSRTC bus bearing registration No.KA-09-F-4067 drove the same from

Chamarajanagara towards Nanjangud in a rash and negligent manner and caused accident to the petitioner. As a result, the claimant had sustained

grievous injuries.

The claimant in order to substantiate her case, she examined herself as P.W.1 and got marked the documents as Exs.P1 to P13. In order to prove

her disability, petitioner got examined the Doctor through Court Commissioner as CW.1 and got marked the documents as Exs.C1 and C2. On the

other hand, the respondent has examined its conductor as R.W.1 and not produced any documents.

The Tribunal, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioner in part granting

compensation of Rs.6,54,000/- with 6% interest per annum from the date of petition till the date of realization of award amount. Being aggrieved by

the Judgment and Award of the Tribunal, the present appeal is filed by the appellant/KSRTC.

The learned counsel for the appellant would vehemently contend that the Tribunal has committed an error in taking the income of Rs.5,000/- per

month and also taking the disability of 50%. The claimant in her cross-examination has categorically admitted that she was earning Rs.2,500/- per

month and in spite of the admission, the Tribunal has committed an error in taking the income of Rs.5,000/-. Hence, it requires an interference of this

Court.

In spite of the claimant represented through counsel, there was no representation on the previous occasion and also today. Hence, heard this matter

in the absence of the learned counsel for the respondent.

Having heard the arguments of learned counsel appearing for the appellant and on perusal of the grounds urged in the appeal and the materials

available on record, the point that would arise for consideration of this Court is:

(i) Whether the Tribunal has committed an error in awarding the exorbitant compensation as claimed in the appeal and whether it requires an

interference of this Court?

(ii) What order?

Point Nos.(i) & (ii):

Having heard the learned counsel for the appellant and on perusal of the material available on record, the Tribunal, particularly, taken note of the

nature of injuries sustained by the claimant and also considered the evidence of the Doctor, which had been discussed in paragraph No.13 in detail and

also relied upon the audiogram report dated 03.12.2011 and the evidence of the Doctor comes to a conclusion that the audiometry report shows that

there is severe mixed hearing in left ear and moderately severe mixed hearing loss in the right ear. The petitioner is suffering tandem walking and also

opined that the petitioner is suffering 55% disability to the whole body. The Tribunal after taking into consideration all these facts, considered 50% of

disability.

Having perused the evidence available on record, particularly, the evidence of the Doctor and the nature of the injuries suffered by the claimant,

which has been discussed in the judgment regarding CT scan of head shows diffuse cerebral edema, fracture of amitrial wall of right maxilla and ant

wall of right frontal simus. The Tribunal also considered the CT scan report, the evidence of the Doctor and the audiogram report dated 03.12.2011

and comes to a conclusion that 50% disability can be taken as against the evidence of the Doctor-P.W.2 i.e., 55% disability to the whole body.

Having considered the nature of injuries and the evidence of the Doctor, I am of the opinion that the Tribunal has not committed any error in

assessing the disability of 50% as the claimant is suffering from hearing loss, particularly, severe mixed hearing in left ear and moderately severe

mixed hearing loss in the right ear. Hence, it does not require any interference by this Court.

However, taking into note of the compensation awarded on different heads, an amount of Rs.36,000/- awarded towards 'Pain and suffering'; an

amount of Rs.80,000/- awarded towards 'medical expenses' based on the documentary proof and an amount of Rs.3,000/- awarded towards 'Loss of

income at the time of treatment' are just and reasonable. Hence, I do not find any error in awarding the compensation under these heads.

The learned counsel for the appellant would vehemently contend that the Tribunal committed an error in taking the income of Rs.5,000/- while

calculating 'loss of future income due to disability caused by grievous injury', which is on higher side. In the cross-examination, the claimant herself

categorically admitted that she was getting Rs.2,500/- per month. When there is an admission on the part of the claimant herself that she was getting

Rs.2,500/- per month, the Tribunal has committed an error in taking the income of Rs.5,000/-. The claimant was aged about 30 years and there is no

any documentary proof with regard to her income. In the absence of documentary proof, the Court has to take the notional income and the notional

income would be Rs.6,500/- in the year 2011. Merely because she has given stray admission that she was getting Rs.2,500/- per month, the same

cannot be a yardstick to assess the 'loss of future income due to disability caused by grievous injury' as contended by the learned counsel for the

appellant. The Court has to take note of the notional income. Even the notional income is also on higher side i.e., Rs.6,500/-. However, the Tribunal

has taken the income of Rs.5,000/- while calculating the 'loss of income' and 50% disability, awarded an amount of Rs.5,40,000/-. But the Tribunal has

committed an error in taking the multiplier of 18 instead of '17'. In the claim petition itself, her age is mentioned as 30 years. When such being the

case, it requires modification by taking the multiplier '17' it comes to Rs.5,10,000/- (5000x12x17x50/100) as against Rs.5,40,000/- awarded by the

Tribunal.

In view of the discussions made above, I pass the following:

ORDER

(i) The appeal is allowed in part.

(ii) The Judgment and Award dated 06.08.2013 passed in M.V.C.No.3/2012 on the file of the District Judge, Member, MACT., at Chamarajanagar is

modified granting compensation of Rs.6,29,000/- as against Rs. 6,54,000/- awarded by the Tribunal with interest at the rate of 6% per annum from the

date of petition till the date of realization of award amount.

(iii) The appellant/KSRTC., is directed to deposit the amount within six weeks from today.

(iv) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal, forthwith.

(v) The Registry is directed to send the records to the concerned Tribunal, forthwith.