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Judgment
A.V. Chandrashekara, J.—The 1st respondent of a case bearing MVC No. 702/2009, which was pending on the file of MACT, Gulbarga has filed this appeal. Appeal is filed mainly on the ground of entire negligence being attributed to the driver of the appellant-Corporation and the quantum of compensation being in excess of what ought to have been granted.
Heard the learned counsel appearing for the parties and perused the records.
The 1st respondent herein - Mohammed Ismail was travelling in a KSRTC bus bearing No. KA-37/F-261 on 12.12.2008. When the bus reached on the early morning at about 4.00 a.m. on 13.12.2008, it dashed against a tractor parked on the road near Kellur village. As a result of which, the claimant was injured and he was immediately shifted to Government Hospital, Gulbarga, where he was treated as an inpatient from 13.12.2008 to 17.12.2008.
According to the 1st respondent, the accident took place solely due to the negligence of the driver of the bus, in which he was travelling. Respondent No. 2 before the Tribunal by name Shanker is stated to be a driver of the bus. Mallappa - Respondent No. 3 before the Tribunal is the driver of the tractor, which had been allegedly parked on the road. Respondent No. 2 herein by name Basavaraj is the owner of the said tractor.
Appellant had filed a detailed written statement, denying all the material averments including the allegation of rashness attributed to the driver of the bus, the nature of injuries sustained by the claimant, the amount spent for medicine and the disability sustained by him. The claimant had been called upon to prove the contents of the petition strictly.
Respondent No. 2 before the Tribunal had filed a separate written statement and respondent Nos. 3 and 4 had filed joint written statement. According to respondent Nos. 3 and 4, the accident took place solely due to the negligence of the bus driver and the tractor in question had not been parked in the middle of the road as alleged. With these pleadings, they had requested the Tribunal to dismiss the petition against them.
In view of the above, the following issues came to be framed:
Whether the petitioner proves that, on 12-12-2008 at about 9-00 P.M. the claimant and other boarded Bus No. KA-37/F-261 from Hospeth to come to Gulbarga (Shimoga to Bidar Bus) and at about 4-00 A.M. on 13-12-2008 when Bus reached near Kellur village in Jewargi Taluka at that time, the driver of the Bus who drove the said Bus in a rash and negligent manner with high speed and endanger human life and suddenly hit to the Tractor which was standing on the side of the road and caused the accident?
Whether the petitioner further proves the alleged accident occurred due to the negligent act of the driver of Bus, as a result petitioner sustained severe injuries as alleged?
Whether the respondent No. 2 proves that, due to rash and negligent driving of the Tractor by its driver the accident took place?
Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
What Award or Order?
Mohammed Ismail is examined as P.W. 1 and has got marked 6 Exhibits. Shankar - the driver of the bus is examined as R.W. 1. Ultimately, a sum of Rs. 1,41,200/- has been awarded in favour of the 1st respondent - Mohammed Ismail vide paragraph 24 the impugned judgment.
The amount of compensation awarded under the different heads is as follows:
It is contended that the driver of the tractor was solely responsible for causing the accident, as he had parked the said vehicle in the middle of the road without any parking light being exhibited. It is argued that the Tribunal has not at all assessed the evidence placed on record in right perspective and awarded compensation in excess with what ought to have been awarded.
Learned counsel appearing for the 1st respondent/claimant had supported the judgment of the Tribunal.
Perused the evidence of P.W. 1 - Mohammed Ismail and the evidence of R.W. 1 - the driver of the KSRTC bus. Suggestion put to P.W. 1 that the accident took place because of the parking of the tractor in the middle of the road has been specifically denied.
Mr. Shankar who has been examined as R.W. 1 has filed an affidavit in lieu of examination-in-chief, giving details about the manner in which the accident took place. He has deposed that the tractor had been parked without parking lights and therefore, the accident took place because of the contributory negligence of the driver of the tractor. Nowhere it is mentioned as to the exact place where the tractor had been parked.
After conducting thorough investigation, police have filed charge-sheet against the driver of the bus. There is no reason to disbelieve the contents of the charge-sheet prepared by the responsible police officers, while discharging their official duties. The negligence will have to be ascertained on the basis of the broad preponderance of probabilities. On reassessing the entire material and documentary evidence, this Court is of the opinion that the Tribunal has rightly held that the accident took place solely due to the negligence of the driver of the appellant-bus.
Insofar as the quantum of compensation is concerned, it is argued that the Tribunal has awarded compensation excessively. Ex. P3 is the wound certificate of the claimant - Mohammed Ismail issued by the Casualty Medical Officer of District Hospital, Gulbarga on 09.01.2009. He was admitted on 13.12.2008 and discharged on 17.12.2008. He had sustained lacerated wound of about 2 x 0.5 x 0.5 inches on the left side of the forehead. Bleeding was present. The doctor who examined Mohammed Ismail in the Government Hospital at Gulbarga is not examined. Of course the genuineness of the contents of Ex. P3 is not seriously disputed.
Ex. P6 is stated to be the disability certificate issued by Dr. Rajendra Kothari of Kothari Nursing Home on 23.02.2011 after examining the disability of the claimant - Mohammed Ismail.
Ex. P7 is the scanning report issued by Mediscan Diagnostic Care, Gulbarga on 11.05.2010. Therein, it is mentioned that there was fracture of right frontal bone. It discloses the scar that was found on the right side of the head. Therefore, it can be safely inferred that the claimant has sustained a fracture of the skull on the right side of the head. Whether the brain was really injured or whether there was any concussion of the brain is not forth coming.
Dr. Rajendra Kothari is examined as P.W. 3. His certificate is dated 23.02.2011. He has issued a certificate opining that the patient had a fracture of right frontal bone and had altered sensorium. According to him, it suggests severe concussion injury of brain and contusion of underlying brain. The best doctor who can speak about the functioning of the brain and the injury to the brain was a Neuro Surgeon or a Neurologist. Hence, much significance cannot be attached to Ex. P6, except the fact that in the accident, the claimant had sustained a fracture of the right side of his head because of the injury. If he had not sustained a fracture of the right side of the head, he would not have been treated as an inpatient for five days in the Government Hospital. Admittedly, head is a vital part of the body and any injury to the head will have to be taken seriously.
Of course the doctor who discharged the claimant from the hospital on 17.12.2008 has opined that the said injury was simple and was caused by hard and blunt object.
The Tribunal has awarded a sum of Rs. 20,000/- under the head "pain and suffering". In view of the injury to the head, a sum of Rs. 25,000/- would be the reasonable compensation under this head.
The Tribunal has awarded a sum of Rs. 3,000/- under the head "medical expenses". Though the claimant was treated in the Government Hospital, some more amount needs to be awarded towards medical expenses. Hence, a sum of Rs. 10,000/- would be the reasonable amount under the head "medical expenses".
A sum of Rs. 5,000/- is awarded under the head "attendant charges, nursing and extra nourishment and conveyance charges". This amount is reasonable and it does not require any interference.
A sum of Rs. 1,000/- is awarded under the head "loss of income during treatment period. Admittedly, the claimant was aged about 19 years as on the date of the accident and was a PUC student. No question of loss of income arises. Anyhow, a sum of Rs. 15,000/- is awarded under the head "loss of amenities". A sum of Rs. 40,000/- would be the reasonable amount under the head "loss of amenities and pleasure in future life". Hence, awarding of Rs. 1,000/- under the head "loss of income during treatment period" will have to be given up.
A sum of Rs. 97,200/- is awarded under the head "loss of future earnings". What exactly is the disability sustained by the claimant and what is the effect of his future earning is not forthcoming in clear picture. Much credence cannot be attached to the evidence of Dr. Kothari, who chose to examine the claimant almost three years after the accident. Instead of that, a sum of Rs. 20,000/- would be awarded under the head "loss of education during the laid up period".
Thus, the claimant is entitled for a total compensation under different heads as follows:
Hence, the claimant is entitled for a total compensation of Rs. 1,00,000/- only as calculated above and not Rs. 1,41,200/- as awarded by the Tribunal. Thus, the appeal will have to be allowed in part, modifying the judgment and award of the Tribunal by reducing the compensation from Rs. 1,41,200/- to Rs. 1,00,000/-. The interest will have to be calculated at 9% p.a. from the date of filing of the petition till realization instead of 6% as awarded by the Tribunal.
ORDER
Appeal is allowed in part. The judgment and award of the Tribunal stands modified accordingly, calculating the total compensation at Rs. 1,00,000/- (rupees one lakh only) with interest @ 9% p.a. thereon from the date of filing of a petition till realization.
The amount in deposit be transferred to the jurisdictional Tribunal.
If any amount is deposited in excess of the amount awarded by this Court, the appellant-NEKRTC is at liberty to withdraw the same.