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Judgment
B. Veerappa, J.—1. This appeal is filed by the KSRTC/appellant against the judgment and award dated 06.09.2010 made in MVC No. 1728/2006 awarding a sum of Rs. 60,000/- with cost and interest at 9% per annum from the date of petition till realization.
The respondent No. 1 was the claimant before the Tribunal, filed a petition claiming compensation of Rs. 3,00,000/- with cost contending that the respondent/Ravindra was a student of 14 years. The bus bearing KA-23/F-70 was insured with the 2nd appellant and the 2nd respondent was the driver of the said bus, as on the date of the accident. On 28.09.2005 at about 12:30 a.m. near GPC Kerur on Jodakurali-Chikodi road, the claimant and his uncle were going on left side of the road to purchase the vegetables towards Kerur market and the said bus was driven by the 2nd respondent came in high speed, rash and negligent manner and dashed against the respondent No. 1/claimant which resulted in accident. The jurisdictional Police registered a criminal case as against the 2nd respondent in Crime No. 234/05 of Chikodi Police Station. In view of the said accident, the claimant sustained injuries and fractures and he was treated in Dr. Padmaraj Hospital, Chikodi for 13 days and his father has spent Rs. 25,000/- for treatment. Due to the accident, he has suffered permanent disability and facing difficulty in studies, sports and day today activities. Therefore, he filed the petition for the compensation as prayed for.
Though respondent Nos. 1 to 3 appeared, only respondent No. 1 filed the written statement, denied the averments of the petition and contended that the driver/2nd respondent was driving the bus slowly and he was blowing the horn and driver has been acquitted in the criminal case. The claim is exorbitant one and the accident took place by the negligence on the part of the claimant. Therefore, he is not entitled for compensation.
Based on the pleadings, the Tribunal framed the following issues:
"1. Whether the petitioner proves that on 28.09.2005 at 11:30 a.m., near GPC Kerur on Jodalurali-Chikodi road, while the claimant was going on left side of the road, bus bearing No. KA-23/F-70 of respondents came in high speed, rash and negligent manner and dashed to the petitioner in the accident he sustained injuries and fracture?
Whether he further proves that he is entitled for compensation as sought?
What order/award?"
In order to establish the claim, the father and uncle of the claimant examined as P.Ws. 1 and 2, Doctor as P.W. 3 and produced the documents Exs. P-1 to P-11. The Insurance Company has not examined any witness. Driver examined as R.W. 1, marked the documents Ex. R1, the certified copy of the judgment in C.C. No. 706/2005.
The Tribunal after considering the entire material on record, recorded a finding that the claimant has proved that on 28.09.2005 at 12:30 a.m. near GPC Kerur on Jodakurali-Chikodi road while the claimant was going on left side of the road, bus bearing No. KA-23/F-70, the respondent No. 2/driver came in high speed, rash and negligent manner dashed against the claimant and claimant sustained injuries and fractures. Accordingly, the Tribunal awarded a sum of Rs. 60,000/- with 9% interest from the date of the petition till realization. Hence, the present appeal is filed by the General Manager, NWKRTC.
I have heard the learned counsel for the parties to the lis.
Shri I.C. Patil, learned counsel for the appellant has contended that the Tribunal has erred in awarding compensation of Rs. 15,000/- towards disability only on the basis of the evidence of P.W. 3/Doctor and the Doctor has admitted in the cross-examination that the claimant was not operated and there is no evidence of fracture as per Ex. P-3 wound certificate. Therefore, the judgment and award is liable to be set aside and also contended that the Tribunal has erroneously awarded Rs. 25,000/- towards pain and suffering in the absence of any evidence of fracture. Therefore, he sought to set aside the impugned judgment and award passed by the Tribunal.
Per contra, Shri Rajendra R. Patil, appearing for Shri Srinand A. Pachhapure for respondent No. 1 sought to justify the impugned judgment and award.
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record including original records.
It is an admitted fact that the accident took place on 28.09.2005 at 11:30 a.m., due to the accident and negligent driving by the 2nd respondent/driver, a criminal case was also registered which was ended in acquittal in C.C. No. 706/2005. The father and uncle of the claimant examined as P.Ws. 1 and 2, have stated on oath that due to the accident and negligent driving of the driver of the appellant Corporation, the claimant has sustained injuries and they have denied the suggestions of contributory negligence by the claimant and no fault of the driver. The Tribunal considering the entire material on record has come to the conclusion that the claimant has proved that the accident took place by the fault of the driver of the bus and he has sustained injuries in the accident. P.W. 3/Doctor examined on behalf of the claimant has stated in his evidence that he has treated the claimant Ravindra for the swelling of right foot, ankle joint and tenderness of ankle joint and heel and conducted the operation and examined the claimant recently and noticed the restrictions in the movements of right ankle and the claimant has suffered permanent disability of 5 to 10 % in whole body and denied the suggestions made on behalf of the Insurance Company and identified the bill at Ex. P-9. Considering the entire material on record, the Tribunal awarded Rs. 25,000/- towards pain and suffering. Except the statement made by the Doctor, the claimant has not produced any medical document to prove that he has suffered due to the injuries or fracture. Though the Doctor has stated that he has operated the claimant, but no medical record is produced. In the absence of any fracture or injury or medical certificates/document produced, granting of Rs. 25,000/- towards pain and suffering is exorbitant. Taking into consideration, the age of the claimant, this Court is of the opinion that the claimant is entitled Rs. 15,000/- towards pain and suffering.
The appellant has not made out any case to interfere with the award passed in respect of loss of amenities, medical bills, probable expenses for conveyance and nourishment and disability.
Considering both oral and documentary evidence on record in particular the evidence of P.Ws. 1 to 3 and Exs. P-1 to P-11 and in the absence of any contra evidence adduced by the Insurance Company, this Court is of the considered opinion that the claimant is entitled Rs. 15,000/- towards pain and suffering, Rs. 10,000/- towards loss of amenities and Rs. 5,000/- for treatment and probable expenses and conveyance, Rs. 5,000/- towards nourishment and Rs. 15,000/- under the head of disability. In all, the claimant is entitled to Rs. 50,000/- with interest at 9% per annum from the date of the award till the date of the realization.
In view of the aforesaid reasons, the appeal is allowed in part. The judgment and award passed by the District Judge, Fast Track Court " I, Chikodi dated 06.09.2010 is modified holding that the claimant is entitled to Rs. 50,000/- with interest at 9% per annum from the date of petition till realization.
The amount deposited by the appellant before this Court is directed to be transmitted to the MACT and District Judge, Fast Track Court - I, Chikodi forthwith.