IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 8TH DAY OF DECEMBER, 2011 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR M.F.A.No.31947/2010 (MVJ C/W M.F.A.No.31780/2010 (MV) IN M.F.A.NO.31947/2010: BE’IWEEN ADAM S/O AZEEZ BAGAWAN, AGE: 46 YEARS, 0CC: EX- M. S. R. T. C. CONDUCTOR, R/O TIDAGUNDI. .APPELLANT (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE) AND THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., S. S. FRONT ROAD, BIJAPUR. RESPONDENT (BY SRI. SHIVANAND PATIL, ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2010 PASSED IN MVC NO.1007/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V BIJAPUR, PARTLY ALLOWING ThE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION. M.F.A.NO.3 1780/2010: BE’TWEEN ThE DIVISIONAL MANAGER, UNITED INDIA INS. CO. LTD.. S.S.FRONT ROAD. BIJAPUR. THROUGH THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD.. JAWALI COMPLEX. GULBARGA. APPELLANT (BY SRI. SHIVANAND PATIL, ADVOCATE) AND ADAM S/O AZEEZ BAGAWAN, Age: 44 YEARS, 0CC: MSRTC CONDUCTOR, R/O TIDAGUNDI, DIST: BIJAPUR. 2. D.NAGESHWAR RAO, Sb LAXMI NARAYAN, AGE: 44 YEARS, 0CC: GOOD TRUCK DRIVER, R/O : AKUNVIDU TQ: YERRUPALUM, DIST: KHAMMAM, ANDHRA PRADESH. 3. KRI.P.VENKUNTA LAXMI D/O SUBBARAO, MAIN ROAD, JUJJURU, VEERALAPADU, R/O : AKUNVIDU TQ: YERRUPALUM, MANDAL DIST: KRISHNA - 501121, ANDHRA PRADESH. RESPONDENTS (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE) ThIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2010 PASSED IN MVC NO.1007/2006 ON ThE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V BIJAPUR, PARTLY ALLOWING ThE CLAIM -3- PETITION AND AWARDING THE COMPENSATION OF ‘4,54.025/- WITh INTEREST AT 6% P.A. ThESE APPEALS COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT These appeals are directed against the judgment and award passed in MVC No.1007/2006 by MACT-V Bijapur dated 15.06.2010 allowing the claim petition in part. 2. MFA No.31947/2010 is by the claimant seeking for enhancement of compensation and for fixing the contributory negligence on the owner of truck involved in the accident to be indemnified by its insurer. 3. MFA No.31780/2010 is by the Insurance Company questioning the quantum of compensation awarded by the tribunal to the extent of 50% payable by it. 4. Though these appeals are listed for orders, by consent of learned Advocates appearing for parties, they are taken up for final disposal and also in view of the fact that learned Advocates have produced the certified copy of depositions and exhibits produced and marked before the tribunal. 5. Facts leading to filing of these appeals are as under: A claim petition under Section 166 of MV Act 1988 came to be filed seeking compensation of Rs. 17,10,000/- by the claimant alleging that while he was on duty as a conductor in MSRTC bus bearing registration No.MH- 12/UA-8779 and proceeding to Solapur from Pandharpur at about 11.30 a.m. the bus was few kilometers away from Kegaon village and the driver of the bus with all care was overtaking the truck and at that time truck driver instead of slowing down his vehicle, increased his speed and dashed to the bus entrance door i.e.. left of the bus due to which impact left side of the bus body was damaged and the claimant who is a conductor and who was sitting on the left side of the bus is said to have sustained grievous injuries and was shifted to Solapur Civil Hospital for treatment and later on shifted to Dr. Manmath Rauth Hospital at Solapur for further treatment. On account of injuries sustained, he is said to have sustained permanent physical disability and as such claimant sought for compensation. On registering the claim petition notices were ordered on respondents. First respondent driver of the goods truck remained exparte. Second respondent owner of the lorry remained absent though served with the notice. Third respondent Insurance Company alone appeared and filed written statement and stated that accident in question was on account of rash and negligent driving by the driver of the MSRTC bus and not an amount of any negligence by driver of the Truck. -6- On the basis of the pleadings of the parties tribunal framed following issues for its adjudication: 1. Whether the petitioner proves that on 17.05.2003 at 11.30 a.m. while he was travelling in the Bus No.MH-12/UA-8779, the Lorry bearing No.AP- 16/TT’-3758 being driven in a negligent manner by its driver dashed the Bus and hence he sustained the injuries alleged in the petition? 2. Whether the respondent No.3 proves that the accident is the result of negligent driving of the Bus by its driver? 3. Whether the respondent No.3 proves that the petition is untenable for non impleading the owner and insurer of the Bus? 4. Whether the petitioner is entitled to the compensation? If so. what is the quantum and from which of the respondents? 5. What order or award? 6. Claimant got himself examined as PW- 1 and examined official from MSRTC as PW-2 and produced 20 documents and got it marked as Exs.P- 1 to P-20. On behalf of Respondent No.3 official of the Insurance Company is examined as RW- 1 and got marked Exs.Rl and R2. On scrutiny of the pleadings and on evaluation of the evidence by the tribunal total compensation of Rs.9,08,050/- was awarded by the tribunal under the following heads: (i) Loss of income due to re-employment as peon and less salary of conductor 6,72,000/- (ii) Loss of amenities and future discomfort l5.00O/- (iii) Pain and suffering 35,000/- (iv) Loss of income during laid up period ‘46,050/- (v) Future medical expenses 10,000/- (vi) Loss of salary after 29.06.2005 till re-employment on 3.08.2006 130,000/- Total: 9,08,050/- -8- Claimant is seeking for enhancement and the insurer of the offending truck is seeking for reduction of the compensation awarded by the tribunal. 7. It is the contention of Sri.Shivanand Patil learned counsel appearing for appellant-Insurance company that tribunal has erred in awarding compensation under the head of loss of future income particularly when the claimant has been re-employed and there being no loss of future income at all to the claimant and as such he contends that compensation awarded by the tribunal in a sum of 6,72,OOO/- as future loss of income is required to be set aside. He would also contend that Tribunal has erred in awarding compensation towards loss of income during laid up period. Admittedly, claimant has been re-employed and medical bills having been reimbursed, claimant was not entitled for any compensation towards loss of income -9- during laid up period. He would also elaborate his submission by contending that tribunal erred in taking the salary of a co-employee or a co-worker namely Ex.P 19 (salary certificate) as the base or the yardstick for determination of loss of income (difference) which is erroneous and contrary to the facts on record and as such he seeks for reduction of the compensation. 8. Per contra, learned counsel appearing for claimant Sri. Sanganagouda V. Biradar would contend that compensation awarded by tribunal itself is on the lower side and contends that tribunal erred in not awarding any compensation towards food, conveyance and attendant charges and compensation awarded towards loss of amenities, pain and suffering and medical expenses is also on the lower side and seeks for enhancement of compensation. He further contends that tribunal ought to have taken probable prospects of the claimant becoming Manager or Traffic Controller - 10- Into consideration and ought to have taken such salary as the basis to arrive at the difference of Income for awarding compensation under the heading loss of future Income. He would contend that tribunal erred In fixing the contributory negligence on the driver of the truck at 5(1)6 and prays for fastening the liabifity In Its entirety on the driver of the truck or In alternative to an extent of 75% :25% (between truck and bus). On these grounds he seeks for allowing the appeal filed by claimant. 9. Having heard the learned counsel appearing for the parties and on perusal of exhibits marked and evidence tendered by parties which are made available to this Court at the time of arguments, I am of the considered view that following points would arise for my consideration: (1) Whether the contributory negligence as held by the Tribunal In the ratio of 50:50 -11- (between Bus and Truck) is to be modified, reversed or affirmed. (2) Whether the compensation awarded by the tribunal under all heads are just and reasonable or it requires to be enhanced, reduced or modified? If so, to what extent? (3) What order? 10. Claimant sustaining injuries in the accident in question and claimant being a conductor of MSRTC bus bearing registration No.MH-12/UA-8779 and the said bus met with an accident with goods truck bearing No.AP-16/TT-3758 on 17.05.2003 at about 11.30 a.m. are undisputed facts. So also issuance of Insurance Policy to the offending lorry is also not in dispute. Hence, these facts are delved upon in extenso by the Tribunal are not discussed as it would be repetition of facts. Re.POINT NO.1: - 12- I 11. First Issue raised by learned counsel appearing for the Insurance Company is that accident in question occurred on account of rash and negligent driving of the bus driver. Claimant was a conductor In MSRTC bus and he has specifically contended that accident occurred due to rash and negligent driving of the truck driver, If It Is so nothing prevented the claimant to examine his co-employee namely driver of the truck to establish this fact. Plea put forth by the claimant remained as It Is without being proved. It Is also to be noticed that tribunal on appreciation of material on record namely HR (ExPl-A), Spot Panchanama (Ex.P4-A) and other connected documents has held that both vehicles namely truck and the bus were proceeding In the same direction i.e. side by side and the accident has taken place on a National Highway and has rightly held that there can be no obstruction to two vehicles to pass at a time on National Highway. The accident in question has occurred while the truck was fr - 13 - being over taken by bus driver. Claimant has not contended either in the claim petition or in his evidence about offending truck was towing another truck and based on the charge sheet Ex.P- 1 where a reference is made to this effect. Claimant thought fit to contend in the argument before the tribunal that on account of such towing, accident in question has occurred. Material on record does not disclose the name of the complaint in the claim petition or deposition of PW- 1 on this aspect. On the other hand it is contended that truck in question was a goods truck and if so goods truck towing another vehicle that too on a National Highway cannot be accepted or alternatively if it was loaded with goods it cannot be said on a highway it would be towing another vehicle while carrying goods. Hence, contention of learned counsel appearing for the claimant that there was contributory negligence on the driver of the truck cannot be accepted. It is also noticed from material on record that at the time of overtaking of - 14- the truck by the driver of MSRTC bus accident in question has occurred which means that in order to avoid an opposite vehicle driver of the bus has steered his vehicle to the left side resulting in bus dashing on its left side of the truck i.e.. towards its right side resulting in the claimant sustaining injuries since he was a conductor sitting on the left side of the bus. Hence, contention raised by learned counsel for the claimant that there is contributory negligence on the truck either to an extent of 100% or to an extent of 75% cannot be accepted and finding of the tribunal that drivers of both vehicles were equally responsible for the accident in question by applying Rule 6 of Road Regulations Act 1989 is just and proper which does not suffer from any infirmities either in law or in facts which calls for interference by this Court and as such said contention is hereby rejected. RE.POINT NO.2: - 15 - 12. Now coming to issue regarding question of compensation awarded, it is noticed that tribunal has awarded compensation under various heads as reflected herein above. On the one hand claimant seeks for enhancement of compensation under all heads. Insurer of the truck seeks for reduction of compensation awarded primarily under two heads namely: (i) loss of future income and: (ii) loss of salary for the period of 29.06.2005 to 03.08.2006. 14. As on the date of the accident claimant was working as a conductor and was being paid salary as evidenced from Ex.P-15 & 15(a). Said document i.e., salary certificate of the claimant, relates to the period of January 2003. A perusal of the same would go to show that gross paid salary of the claimant for the month of January 2003 is 7,673.75/- and accident in question occurred on 17.05.2003 and it is not in dispute that claimant was removed from service on account of - 16 - disability on 29.6.2005 and he re-employed as a peon on 03.08.2006 i.e. after 1 year 3 months after removal. These dates are not disputed by learned Advocates appearing for both the parties. In view of the same and in this factual background when rival contentions raised in this appeal are examined it is noticed that claimant had sustained injuries all over the body and particularly his left hand was crushed as evidenced from disability certificate as per Exs.P6 and P9 and the medical report at Ex.P- 12. Claimant was inpatient at Ashwini hospital Solapur for more than one month and thereafter he has been operated four times, due to which he was continuously absent from duty. Thus, compensation awarded under the heading loss of amenities and future discomfort is marginally on the lower side and requires to be enhanced by awarding additional sum of 15,000/- and accordingly same is awarded. In view of the fact that the claimant was inpatient for more than one month and was being -17- I regularly under medical treatment and being hospitalized every now and then for a period of 1½ years, claimant would have naturally spent amounts towards food, nourishment, conveyance charges and as such tribunal erred In not awarding any compensation under this heading and as such I am of the considered view that a sum of fl5,000/- deserves to be awarded under this heading and accordingly same is awarded. 15. In so far as compensation awarded by the tribunal towards loss of Income due to re-employment as peon and the claimant drawing lesser salary than the salary he would have drawn as a conductor is concerned It is noticed that tribunal has relied upon two documents namely salary certificate Exs.P18 and P19 to arrive at loss of future Income at ?4,000/- per month. This finding of the tribunal Is erroneous and Is on the higher side for the reason: Ex.Pl9 is a salary certificate which relates to one SrI.P.B.Chaware relating to the 10 - 10- period Feb.2010 whereunder he had received salary of l5,428/-. Claimant has produced pay fixation extract which was time scale of the conductors fixed with effect from 15.12.1994, as on the said date basic salary of the claimant fixed was . 1. 190/- and that of Sri.P.B.Chaware was l ,2 16/-. Hence, it cannot be held that claimant herein was drawing same basic salary as drawn by Sri.P.B.Chaware. Tribunal has taken into consideration the salary of the claimant for the month of June 2010 as evidenced from Ex.P16-A (salary certificate relating to June 2010) and compared with salary drawn by Sr.P.B.Chaware at 15,428/- as per Ex.P19 and P 19(a) and held difference amount of 3,894/- being rounded off to 4,0O0/- per month would be the salary to which claimant is entitled to. This exercise of computation made by tribunal is erroneous for the reasons aforesaid namely Sri.P.B.Chaware was not drawing same scale of pay as drawn by the claimant. - 19- 1 16. It is further noticed that one Sri.M.A.Dubal who also a conductor was drawing same scale as that of the claimant as found In pay fixation register extract produced at Ex.P-17. Name of SrI.M.ADubal Is found at serIal No.35 wherein basic pay is shown as ?1,190/- namely same as that of the claimant whose name found at serIal No.28 and whose basic salary was also !. 1,190/-. Thus, both stand on same footing. Salary certificate of SrLM.A.Dubal relating to the month of January 2010 Is produced and marked as Ex.P-18-A reflects that salary drawn by the said Sri.M.A.Dubal for the month of January 2010 is ?14,691/- whereas the salary certificate of the claimant relating to the salary paid for the month of December 2009 In January 2010 as per Ex.P-16-A Is ?ll,537/-. Thus difference In salary to be arrived at was Ex.P18-A minus Ex.P16-A which would be fl4,691 - ?11,537 = Z3,154/-. This - 20 difference amount claimant would be entitled to and not Rs.4,000/- as computed by Tribunal. 17. Sri.Shivanand Path would contend that on account of claimant having been re-deployed or re employed no amount whatsoever is required to be awarded towards loss of future income this contention requires to be rejected for simple reason that the appellant namely insurer has not been able to demonstrate either before the tribunal or before this Court that claimant on account of such re-employment was provided with pay protection. In the absence of any material to show that claimant was continued to be paid with the same salary which he was drawing as a conductor drawn as on the date of accident was being paid to him even as a peon, salary difference if any will have to be worked out and awarded as compensation towards loss of future income occasioned on account of such reduction. On comparison of two salary -21 - certificates at Ex.P16-A and P18-A it would go to show that Sri.M.A.Dubal pay scale is 9,415/- while that of the claimant as on the date of re-employment is 7,4O6/- and DA being paid to Sri.M.A.Dubal is 2,542/- while that being paid to claimant is 2,OOO/- and conveyance allowance paid to Sri.M.A.Dubal is l, 160/- while that is being paid to claimant 500/- thus difference under three categories is 2OO9+542+66O=32 11/- thus while computing the loss of income occasioned on account of re-deployment and claimant drawing lesser salary than that of his co employee who was similarly placed, would entitle claimant to seek difference in salary as loss of future income. 18. Having heard that the claimant is entitled for loss of future income it is to be examined as to whether tribunal arrived at correct figure. As observed herein above tribunal has arrived at the difference by - 22- deducting the amount shown In EicPl9-A with that of Ex.P16-A at !3,894/- and rounded It to !4,000/- which Is erroneous as held herein above and what had to be deducted was ?14,691/- (Ex.P18-A) relating to Srl.M.A.Dubal from Ex.P16-A Is fll,537/- (salary certificates relating to the claimant) which would be !3, 154/-. In view of this modification done claimant would be entitled to !3,211/- or ?3,154/- as difference of salary and as such It would be just and proper and rounded off to 3,2OO/- and the difference compensation towards loss of future Income Is modified as under: (3200x12x145,37,600/-) Tribunal has awarded a sum of ?6,72,000/- under this heading and as such It Is to be reduced by ?1,34,400/- (!6,72,000 - ?5,37,600 = ?1.34,400/- and accordingly same Is reduced. - 23 - 20. It is noticed that tribunal has awarded 1,30000/- towards loss of salary for a period of 29.06.2005 to 03.08.2006 namely from date of removal from service till date of re-employment by deducting income at 10,OO0/- on the ground that there was no material produced by the claimant. Last drawn salary by the claimant relating to the month of January 2003 was 7,673.75/- as evidenced from salary certificate at Ex.P 15-A, in that view of the matter tribunal has committed serious error in holding that there is no material to arrive at last drawn salary and jumping to conclusion that income is to be at 1,36,000/- in the absence of any material on record regarding salary being drawn at the rate of 10,000/- per month, tribunal committed an error on facts holding that there is no material in view of the documentary evidence placed by the claimant as per Ex.P15-A. Loss of income or loss of salary for the period of 29.06.2005 i.e., date of removal till the date of re-employment ought to have 24 - taken at 7,700/- per month. Thus, taking the same loss of income from the date of removal till the date re- employment being 13 months, the compensation recomputed it would be (7,7O0xl3l ,00, 100) thus compensation under this heading also deserves to be scale down for a sum of 29,900/-. Thus, compensation awarded by tribunal under these two headings requires to be reduced and accordingly a sum of 1,64,3OO/- is reduced from the total compensation awarded by the tribunal. 21. Thus, both the appeals are deserve to be allowed in part. In the appeal filed by the Insurance Company compensation awarded by Tribunal is reduced by 1,64,400/- and in the appeal filed by claimant additional compensation of 30,000/- is awarded. The net result would be compensation as awarded by tribunal gets reduced by 1,34.400/- (1 ,64,400/- - 30,000/-). - 25 - 22. In view of the above discussion following order is passed: ORDER 1. MFA No.31947/2010 is allowed in part and additional compensation of 3O,000/- is awarded which shall carry interest © 6% per annum from the date of petition till the date of deposit or payment whichever is earlier. 2. MFA No.31780/2010 is allowed in part and compensation awarded under uloss of income” is reduced by a sum of1,64,300/-. 3. Thus, total compensation as awarded by tribunal is reduced to 1,34,300/-. 4. Finding of the tribunal in all other aspects stands affirmed. 5. Registry to draw the award accordingly. - 26- 6. Amounts in deposit if any before this Court is ordered to be transferred to jurisdictional Tribunal for being disbursed in accordance with judgment and award. Sd! JUDGE Srt