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Judgment
P.S. Dinesh Kumar, J.—M.F.A. Nos. 20088 and 20089 of 2008 filed by the Road Transport Corporation namely NWKRTC have emanated out of a judgment and award dated 11.04.2008 in M.V.C. Nos. 3 and 5 of 2007 on the file of the Addl. MACT at Honnavar (hereinafter referred to as ''Tribunal'' for brevity).
M.F.A. No. 20045/2008 is filed by the claimant in M.V.C. No. 5/2007 and M.F.A. No. 20047/2008 is filed by claimant in M.V.C. No. 3/2007.
M.F.A. Nos. 20803 and 20805 of 2009 is filed by the Corporation challenging the judgment and award dated 26.11.2008 on the file of the Addl. MACT at Honnavar.
Parties shall be referred to as per their status in the claim petition.
The facts of the case are as follows:
"Both claimants in MVC Nos. 3 and 5 of 2007 were passengers in a goods open tempo bearing registration No. KA-47/946 which met with an accident on 18.07.2006 at about 04:00 p.m. near Shiroor Village, Bhatkal Taluk when a bus which was driven in a rash and negligent manner belonging to the Corporation bearing registration No. KA-31/F-629 dashed against the said tempo. Due to the impact, the passengers in the tempo sustained injuries. Accordingly, the claim petitions were presented before the Tribunal for claiming compensation."
Claim petitions were resisted by the Corporation by filing statement of objections. Based on the pleadings, the Tribunal framed the following three issues and one additional issue:
"1. Whether the petitioners prove that she/he sustained bodily injuries in the road traffic accident that occurred on 18.7.2006 at about 5.30p.m. on Savantegudde, Tudalli Road near Shiroor village, due to rash and negligent driving of KSRTC bus bearing No. KA-31/F-629 by its driver, as alleged in his petition?
Whether the petitioner is entitled to receive compensation? If so, at what quantum and from whom?
What award or order?
(Additional issue)
Whether the respondent No. 1 proves that the accident was caused solely due to rash and negligent act of the driver of Mini Goods Tempo bearing No. KA-47/946 belonging to respondent No. 2?"
Answering the issues in favour of claimants, the claimant in M.V.C. No. 3/2007 was awarded Rs. 22,000/- and the claimant in M.V.C. No. 5/2007 was awarded Rs. 1,29,000/-. Claimants have challenged the judgment and award of the Tribunal for enhancement of compensation. Corporation has challenged the judgment and award contending inter alia that the accident took place due to the fault of the driver of the goods auto and therefore, the Corporation is not liable to compensate the claimants.
Heard Smt. Veena Hegde, learned counsel for the Corporation, Shri M.C. Hukkeri, learned counsel for the claimants and Shri R.R. Mane, learned counsel for the New India Assurance Company.
Learned counsel for the Corporation vehemently contended that the accident occurred due to the negligence of the driver of the tempo. Therefore, the Corporation did not have any liability to pay compensation for the injury sustained by them. She submitted that the driver of the bus has deposed that he was driving the bus very cautiously and it was the driver of the tempo who was driving auto dashed against the diesel tank of the bus. She further submitted that though the driver of the bus made efforts to lodge a complaint with the Baindoor Police, the same was not accepted. The driver has further stated that Baindoor Police has registered separate case against respondent No. 2 violating the permit conditions and he had lodged a private complaint in the Court of JMFC, Kundapur. However, the complaint was sent to the Superintendent of Police, Udupi on 19.07.2006 to take action against the driver of the tempo. She contended that when these facts were not properly appreciated by the Tribunal and the award has been passed without proper application of mind. On these grounds, she prayed for allowing the appeals filed by the Corporation and also to dismiss the appeal filed by the claimants for enhancing.
On the other hand, learned counsel appearing for the claimants refuting the contentions urged by the learned counsel for the Corporation submitted that the Tribunal has taken note of the fact that R.W.1 has voluntarily admitted in his evidence that he had no records to show that he had lodged a private complaint. He further contended that R.W.2 has also supported the case of the claimants and deposed that he was carrying passengers and not buffaloes. Accordingly, learned counsel prays for dismissing the appeals filed by the Corporation and to allow the appeals filed by the claimants by enhancing the compensation.
There is no dispute with regard to the occurrence of the accident and the injuries sustained by the claimants. In the light of the rival contentions urged on behalf of the learned counsel for the parties, following questions that arise for consideration are:
"1. Whether the accident occurred entirely due to the negligence on the part of the driver of the tempo?
Whether the compensation awarded is just and appropriate?"
Re. point No. 1:
R.W.1 is the driver of the bus. It is his case that he was driving the bus very cautiously and stopped the same when he noticed that the tempo was coming from the opposite side in a rash and negligent manner. After the accident, he made attempts to lodge the complaint and Police did not accept his complaint. Subsequently, he sent a complaint to the Superintendent of Police and lodged complaint to the learned JMFC, Kundapur.
R.W.1 in the cross-examination has admitted that he had no records to show that he has lodged a complaint before the JMFC, Kundapur. Ex. P-15 is the FIR against the driver of the bus for offences punishable under Sections 279 and 338 of IPC. Ex. R-4 and R4(a) the sketch drawn by the Investigating Officer, demonstrates that ten feet space was available towards the southern edge of the road when measured from the spot of accident. It also reveals that there were tyre marks from east to west two feet in width and there is a rough road measuring 1.5 feet width towards southern side. The Tribunal after due appreciation of evidence has recorded a finding that there was no sufficient space towards the southern and there was sufficient space on the northern side and that the driver of the bus instead of driving the vehicle on the extreme left side has negotiated on the right side and in such circumstances, there is no scope for the driver of the tempo to avoid the accident. The Tribunal has also recorded a finding that the evidence of R.W.1 is not trustworthy. In the light of the findings recorded by the Tribunal based on evidence and on re-appreciation of the evidence, the arguments advanced on behalf of the Corporation that the accident occurred due to the negligence of the tempo does not merit any consideration. Accordingly, the ground of negligence is answered against the Corporation.
Re. point No. 2:
Having held that the accident had occurred due to the negligence on the part of the driver of the Corporation, it leaves that the aspect of examining the quantum of compensation.
The claimant in M.V.C. No. 3/2007 has suffered the following injuries:
"1. Colles fracture left.
Haematoma left wrist.
Right cuneiform fracture with haematoma."
According to the Doctor, the injury Nos. 1 and 3 are grievous in nature and injury No. 2 is simple in nature. Tribunal on appreciation of evidence has awarded a sum of Rs. 21,268/- and rounded off to Rs. 22,000/-. Medical expenses has been paid in full as claimed. Loss of income during treatment period has been calculated at Rs. 100/- per day. Conveyance and attendant charges of Rs. 2,000/- has been paid. The claimant was aged 24 years at the time of accident. Her occupation was agriculture and coolie. Accident has occurred during July 2006. In the circumstances, the compensation under the heads medical expenses, conveyance and loss of income during laid up period does not require any enhancement. However, keeping in mind the injuries sustained by the claimant, the compensation towards pain and suffering and loss of amenities requires reassessment. Accordingly, the compensation is re-assessed as follows:
In M.V.C. No. 5/2007 claimant is an young lady who was aged 18 years at the time of accident. He was an agricultural coolie. She has suffered following injuries:
"1. Left hip dislocation.
Fracture shaft of(L) left femur.
Haematoma over left thigh.
Abrasions over left thigh."
The Tribunal awarded a total sum of Rs. 1,29,000/-under various heads. Medical expenses of Rs. 32,233/- has been reimbursed in full. Admittedly, the claimant has suffered dislocation of left hip and fracture of left femur. She was a young lady at the time of accident. The disability and permanent physical impairment has been certified at 16% by the Doctor. The Tribunal has rightly considered the whole body disability at 16%. She has suffered shortening of limb of 1/2 inch. While computing the loss of future income, the earning capacity of the lady has been taken at Rs. 80/- per day i.e., Rs. 2,400/- per month. Accident having occurred during July 2006, the earning capacity of a coolie during the laid period can be safely construed at Rs. 5,000/-. Therefore, the compensation under the head loss of future earning requires to be enhanced.
The claimant was inpatient for 23 days and a steel rod has been implanted during the surgery. Perusal of Ex. P-45 disability certificate and evidence of P.W.5 discloses that two mal-union of fracture and shortening of limb by half an inch and the claimant experience acute pain. In the light of this medical evidence and shortening of limb and the age of the claimants, I am of the opinion, the compensation awarded on all heads except medical expenses require reassessment. Accordingly, the same are reassessed as follows:
So far as M.F.A. Nos. 20803 and 20805 of 2009 are concerned, these two appeals have been filed by the Corporation contending that the accident has occurred due to the fault of the driver of the goods tempo. Claimants in these two cases were also passengers in the very same vehicle which are subject matters of the above four appeals. Ground urged by the Corporation in support of these appeals also stands on the same footing as that of M.F.A. Nos. 20088 and 20089 of 2008. Therefore, these do not merit any consideration and deserve to be rejected.
In the result, I proceed to pass the following:
"ORDER
i) M.F.A. Nos. 20088 and 20089 of 2008 stands dismissed.
ii) M.F.A. No. 20045/2008 is allowed in part and a sum of Rs. 17,000/- is awarded, as enhanced compensation payable with 8% interest from the date of petition till the date of payment.
iii) M.F.A. No. 20047/2008 is allowed in part and Rs. 93,033/- is awarded, as enhanced compensation with interest at 8% interest from the date of petition till the date of payment.
iv) Appellant - NWKRTC in M.F.A No. 20088/2008 i.e., is directed to deposit the enhanced compensation in the above appeals allowed in part within four weeks from the date of receipt of a copy of this order.
v) M.F.A. Nos. 20803 and 20805 of 2009 filed by the Corporation are dismissed."
No costs.
Registry is directed to transmit the amount in deposit in M.F.A. Nos. 20088 and 20089 of 2008 forthwith along with records to the Tribunal.