Renavva vs The Managing Director, NWKRTC

B. Manohar, J.—1. In these two appeals, appellants are challenging the legality and correctness of judgment and award dated 24-12-2012 made in MVC No. 106/2010 passed by the Motor Accident Claims Tribunal No. VIII at Muddebihal (hereinafter referred to as ''the Tribunal'' for short)

The claimant being not satisfied with the quantum of compensation awarded by the Tribunal has filed MFA No. 30281/2013 whereas the Managing Director, NWKRTC filed MFA No. 31817/2013 being aggrieved by fastening the liability on them to compensate the claimant.

The facts leading to filing of these two appeals are as under:

The claimant had filed the claim petition contending that on 21-09-2009, she had boarded KSRTC bus bearing Registration KA-28/F-1233 at Nalathawada to proceed towards Adavi Somanala Cross. While she was getting down from the bus at Adavi Somanala cross, the driver of the bus negligently moved the vehicle without noticing the fact that the claimant was getting down from the bus. In view of that, she fell down and sustained grievous injuries to all parts of the body and also fracture of 2nd and 3rd metatarsal bone. She claims that she has spent more than Rs. 1.00 lakh towards her treatment. Prior to the accident she was doing coolie and household work and earning a sum of Rs. 40,000/- p.a. In view of the permanent disability sustained in the accident, she cannot do the work as she was doing prior to the accident. Hence sought for compensation of Rs. 9,10,000/-.

In pursuance of the notice issued by the Tribunal, NWKRTC entered appearance and filed written statement denying the entire averments made in the claim petition and also the factum of accident. They have contended that the claimant has not sustained injuries due to the accident, but, after she got down from the bus, without observing the pit that was formed on the road due to heavy rain, she herself slipped and fell down and sustained injuries. The expenditure incurred towards treatment is denied and further contended that the compensation claimed is exorbitant. Due to the negligence on the part of the claimant herself she fell down. Hence the respondent is not liable to compensate the claimant and sought for dismissal of the claim petition.

The claimant, in order to prove her case examined herself as P.W. 1 and got marked the documents Ex. P1 to Ex. P9. The Doctor who issued the disability certificate was examined as P.W. 2. On behalf of the respondents, driver of the bus was examined as R.W. 1.

The Tribunal, after considering the oral and documentary evidence let in by the parties, taking into consideration copy of the complaint, IMV report and panchanama held that due to the rash and negligent driving of the bus, the accident occurred and the claimant is entitled for compensation. In the accident she has sustained fracture of two metatarsal bone. The Doctor who issued the disability certificate assessed the disability to an extent of 10% to the whole body. Accordingly awarded a sum of Rs. 45,000/- pain and suffering, Rs. 10,000/- towards medical expenditure, Rs. 3,000/- towards attendant charges, Rs. 3,000/- towards loss of comfort. In all, the Tribunal has awarded a sum of Rs. 61,000/- with interest at the rate of 6% p.a. from the date of petition till realization, calling upon the respondent to compensate the claimant as per the judgment and award dated 24th December 2012. Being not satisfied with the quantum of compensation, the claimant has filed the MFA No. 30281/2013 seeking enhancement of compensation, whereas being aggrieved by the fastening liability on the respondent, NWKRTC also preferred MFA No. 31817/2013.

Sri Harshavardhan R. Malipatil, learned counsel appearing for the claimant contended that due to the negligence on the part of the driver of the bus, accident had occurred and the claimant has sustained fracture of two metatarsal bone and injury to the hip. A sum of Rs. 61,000/- awarded is on the lower side and hence sought for enhancement of compensation.

On the other hand, Sri Subhash Mallapura, learned counsel appearing for the appellant/NWKRTC contended that the judgment and award passed by the Tribunal is contrary to law. The claimant herself admitted that after boarding the bus at Nalathawada, while alighting from bus, she slipped and fell into a pit formed on the road due to rainy season. In the examination-in-chief, she has contended that while boarding the bus at Adavi Somanala cross, the driver negligently moved the vehicle, due to which she fell down and sustained injuries. Again in the cross-examination, she has admitted that she got down from the bus at Adavi Somanala cross. Her brother who was travelling along with her got down first and thereafter she got down. While crossing the pit on the road, which was caused due to heavy rain, she slipped and fell down. The Tribunal has not properly appreciated the evidence and hence sought for setting aside the judgment and award passed by the Tribunal by allowing the appeal filed by the NWKRTC.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award and oral and documentary evidence let in by the parties.

The specific case pleaded in the claim petition is that, on 21-09-2006, the claimant boarded the bus along with her brother at Nalathawada to proceed towards Advai Somanala cross. While getting down from the bus, the driver of the bus moved the bus negligently, due to which, she fell down and sustained injuries. Whereas in the examination-in-chief, she has stated that on 21-09-2006 at about 18.30 hours, she was waiting for a bus near Adavi somanala cross, when she was about to board the bus and still on the foot-board, driver of the bus negligently moved the vehicle. In view of that she was thrown out of the bus and sustained injures. However, in the cross-examination she has admitted that she boarded the bus at Nalathawada and got down at Adavi Somanala cross. Her brother got down first and following him, she got down. While crossing the pit and mud on the road, she fell down and sustained injuries. When she fell down, the people sitting in the bus and standing outside shouted. In view of that, the driver stopped the bus. The stand of the claimant is not consistent. In the cross-examination the claimant herself admitted that after she got down from the bus, she wanted to avoid the pit and mud on the road, at that time she slipped and fell down and sustained injuries. Hence, there is no negligence on the part of the driver of the bus. The driver also got himself examined as R.W. 1 and stated that on 21-09-2006, the claimant has not sustained injuries while getting down from the bus whereas after getting down from the bus, since there was pit on the road and while avoiding that pit, she slipped and fell down. Hence, the evidence of the claimant cannot be believed. Apart from that, the claimant has not examined any independent witness to prove that due to the negligent driving of the bus, she fell down from the bus. The claimant herself admitted that her brother was also travelling in the same bus along with her and he got down first at Adavi somanala cross. However, she has not examined her brother to prove the negligence on the part of the driver of the bus. On appreciation of the evidence of the parties, it is clear that the claimant has not sustained injuries due to rash and negligent driving of the bus, whereas she has sustained injuries after getting down from the bus while walking on the road. Hence, the claimant is not entitled for any compensation. The Tribunal has failed to appreciate the evidence in proper perspective. Accordingly, I pass the following:

ORDER

MFA No. 30281/2013 filed by the claimant is dismissed and MFA No. 31817/2013 filed by NWKRTC is allowed. The judgment and award dated 24-12-2012 made in MVC No. 106/2010 passed by the Motor Accident Claims Tribunal, Muddebihal is set aside and the claim petition is dismissed.

The amount is deposit be returned to the appellant in MFA No. 31817/2013.