IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD DATED THIS THE 4TH DAY OF JANUARY 2011 PRESENT: THE HONBLE MR. JUSTICE N.K. PATIL AND THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA M.F.A. No.3946 of 2005 (M.V.), Misc.Cvl.111335/2010 in M.F.A.No.3946 of 2005 (MV) C/w M.F.A.No.10813 of 2005 (MV) M.F.A. No.3946 of 2005 (MV) Between: Mehaboob Kashimsab Naik, Aged 33 years, Ningapur Galli, Khanapur, Belgaum District. Appellant (common in both in Appeal and Misc.Cvl.) (By Sri. Umesh C.Ainapur, Advocate) And: 1. Karnataka State Road Transport Corporation, K.H.Road, Shanthinagara, Bangalore-560027, By its Managing Director. / 2 2. Internal Insurance Fund, K.S.R.T.C., K. H. Road, Shanthinagara, Bangalore, by its Managing Director. 3. Mansoor, S/o. Imambsab Dukandaar, Age: major, 0cc: Business, R/o. Malaprabhanagar, M. Vadgaon, Belgaum-5. 4. The oriental Insurance Co. Ltd., The Merchant Co-operative Bank building, Bailhongal-59 1102, By its Manager. Respondents (common in both in Appeal and Misc.Cvl.) (By Sri: Ravi V.Hosamani, Advocate, for R1-R2, R3 served; Sri. Sharanappa S. Koliwad for Sri. B.C.Seetharama Rao, for R4.) M.F.A. No.3946/2005 is filed u/s 173(1> of M.V.Act, against the judgment and award dated 27.01.2005 passed in MVC No. 1962/2000 on the file of the Civil Judge (Sr. Dn.) and Addl. MACT, Khanapur, partly allowing the claim petition for compensation and seeking enhancement of compensation. Misc.Cvl. 111335/2010 is filed under order 41 Rule 27 read with Section 151 of CPC with a prayer to permit him to produce the additional documents for having taken subsequent treatment, in the interest of justice and equity. 3 M.F.A.N0JO813/2005 (MV) Between: 1. Managing Director, KSRTC, KH Double Road, Bangalore. 2. The Internal Insurance Fund, KSRTC, KH Double Road, Bangalore. Appellants (By Sri: Ravi V. Hosamani, Advocate) And: 1. Mehaboob Kashimsab Naik, 33 years, Service, R/o. Ningapur Galli, Khanapur. 2. Gurunath Harbia Pawar, Major, KSRTC Driver, R/o. KSRTC Belgaum, City Depot, Belgaum. 3. Altaf Allabax Hooli, Major, Driver, R/o. Kata plot, Laxmi nagar, Khanapur. 4. Mansoor Imamsab Dukandaar, Major, Businessman, R/o. Malaprabha nagar, M Vadgaon, Belgaum. 5. The Oriental Insurance Co. Ltd., 4 The Merchant Co-operative Bank Building, Bailhongal-59 1 102, Dist: Belgaum. Respondents (By Sri. Umesh C.Ainapur, Advocate for Ri, Notice to R2 dispensed with v/o dated 16.1.2007; R3 to 5 served.) This M.F.A. is filed u/s 173(1) of M.V.Act, against the judgment and award dated 27.01.2005 passed in MVC No. 1962/2000 on the file of the Civil Judge (Sr. Dn.) and MACT, Khanapur, awarding compensation of Rs.3,88,503/- with interest at 6% p.a., and to set aside the same. The M.F.As. and Mis.Cvl. coming on for hearing this day, N.K.Patil J., delivered the following: :JUD GMENT These two appeals by the claimant and Corporation are directed against the impugned judgment and award dated 27.1.2005 passed in MVC No. 1962/2000 on the file of the Civil Judge (Sr. Dn.) and MACT, Khanapur, (hereinafter referred as ‘Tribunal’ for short) 2. By its judgment and award, the Tribunal has awarded a sum of 3,88,503/- under different heads with interest at 6% p.a., from the date of the petition till / 5 payment, as against the claim made by the claimant for a sum of 30,O0,0O0/- on account of the injuries sustained by him in the road traffic accident. 3. In brief, the facts of the case are: It is the case of the claimant that, he was aged about 30 years, hale and healthy prior to the accident, working as Supervisor in Arab Country and getting the salary of 11,0O0/- per month. He was hale and healthy prior to the accident. That at about 10.00 a.m., on 27.7.2000, the claimant was travelling as pillion rider on Yamaha VBX Motor cycle from Khanapur to Belgaum and when they came near Ganebail village, at that time, the driver of the KSRTC bus bearing No.KA.22.F.988 drove the same in a rash and negligent manner and dashed to the motorcycle, due to which, he has sustained fracture of right femur and other injuries. Immediately, he was shifted to KLE Hospital, Belgaum, wherein, he was treated as inpatient for 15 6 days and underwent two surgeries. On account of the injuries sustained by the claimant, he has suffered permanent disability and the Doctor has assessed the disability at 50% to the right lower limb and it is permanent in nature. It is the further case of the claimant that, he has spent considerable amount towards medical expenses, conveyance and other incidental charges. Therefore, the claimant has filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the driver, owner and insurer of the offending vehicle. The said claim petition had come up for consideration before the Tribunal. The Tribunal in turn, after careful perusal of the oral and documentary evidence and other material available on file, has awarded the compensation of 3,88,5O3/- with interest at 6% p.a., from the date of the petition till payment. Being aggrieved by the said judgment and award passed by the Tribunal, the claimant has filed an appeal contending that the / 7 compensation awarded by the Tribunal is inadequate and it requires to be reduced and the Corporation has also filed an appeal contending that the compensation awarded by the Tribunal is excessive and disproportionate and it requires to be reduced, by modifying the impugned judgment and award passed by the Tribunal. 4. We have heard the learned counsel for the claimant and learned counsel for the Corporation. 5. The learned counsel for the claimant at the outset submitted that, the Tribunal has erred in assessing the income of the claimant at 7,OOO/- per month and the same is on lower side and it needs to be enhanced on the ground that, claimant was working in Arab Country as Supervisor drawing salary of 1 1,OOO/ per month. He further submitted that, the Tribunal has erred in not awarding just and reasonable compensation towards loss of future earnings and in 8 not awarding any compensation towards loss of income during the period of treatment. Further with regard to the submission of the Corporation regarding contributory negligence, he submitted that the same cannot be sustained, on the ground that in MFA No.6997/2005 arising out of MVC No.963/2000 disposed of on 5.2.2010 this court has already fastened the entire liability on the driver of the Corporation Therefore, he submitted that the impugned judgment and award is liable to be modified. 6. However, learned counsel for the Corporation does not dispute regarding the fixing of the entire negligence on the part of the driver of the Corporation but he confines his submission only with regard to the quantum of compensation awarded by the Tribunal, specifically, towards loss of future earnings on the ground that claimant has not produced any documents to show that, due to the injuries sustained by him,, he z / 9 has lost his employment and therefore, awarding of any compensation towards loss of future income is not justifiable and it is liable to be set aside Further he submitted that, when this matter had come up for consideration before this Court on 26.11.2010, this Court had directed the learned counsel to keep present the claimant before this court on 6.12.2010. But he has not chosen to produce the claimant before this court, which establishes beyond all reasonable doubt that, he has not lost his job and he has continued in his employment as Supervisor in Arab Country. Therefore, the quantum of compensation awarded by the Tribunal towards loss of future income is liable to be set aside. 7. After consideration of the submissions made by learned counsel for both the parties, after careful perusal of the materials available on file, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is: / 10 Whether the compensation awarded by the Tribunal is sustainable in law? 8. The occurrence of the accident and the resultant injuries sustained by the claimant are not in dispute. The Tribunal has assessed the income of the claimant at 7,OO0/- per month which is on higher side and it needs to be modified. It is the case of the claimant that, he was aged about 30 years, working as Supervisor in Arab Country and drawing the salary of 1 1,000/- per month. But to prove the same, he has not examined his employer or the authorised representative of his employer or produced any authenticated documents. Having regard to the age, occupation and the year of accident, if the income of the claimant is taken at 5,000/- per month, it would be just and reasonable and accordingly, it is taken. Further, it emerges from the records that, on account of the injuries sustained by the claimant, he has taken treatment as inpatient for 15 days, underwent two II surgeries and thereafter, follow up treatment and bed rest for three months and during the said period he might have lost his income as he could not have attended his work. Further, in view of the injuries sustained by him, he has suffered permanent disability, the Doctor has assessed the disability at 50% to the right lower limb. The Tribunal has assessed the disability at 16% to the wholebody. But the 1/3M of 50% comes to 16.6% and it is rounded off to 17% and it would be the wholebody disability instead of 16% as assessed by the Tribunal. This disability is permanent in nature and he has to suffer this disability, discomforts and unhappiness through out, his life. Taking into consideration the nature of injuries sustained by the claimant, the nature and duration of the treatment taken by him in the hospital as inpatient, we presume that, he might have spent considerable amount towards medical expenses and other incidental charges and during the said period he might have lost his 12 income as he could not have attend for his work. Therefore, the Tribunal has erred in not awarding any compensation towards loss of income during the period of treatment and therefore, it needs to be awarded. The claimant has to suffer this permanent disability through out his life. Taking all these factors into consideration, we award a sum of 3O,OOO/- towards pain and sufferings instead of 25,OOO/—, 1,3O,OOO/- towards medical expenses, conveyance, nourishing food and attendant charges instead of 1,23,463/-, 15,OOO/- towards loss of income during the period of treatment for three months at the rate of 5,OOO/- per month and 5O,OOO/- towards loss of amenities, discomforts and unhappiness. In all, the claimant is entitled for the compensation of 2,25,OOO/- instead of3,88,5O3/- and the break up is as follows: 1. Towards pain and sufferings 30,000/- 2. Towards medical expenses, 1,30,000/- conveyance, nourishing food and attendant chagç - 3. Towards loss of income during the 15,000/- 4. Towards loss of amenities 50,000/- Total 2,25,000/- 7’— ‘3 S 9. For the foregoing reasons, the appeal filed by the claimant is dismissed and the appeal filed by the Corporation is allowed in part. The impugned judgment and award dated 27.1.2005 passed by the Tribunal in M.V.C. No. 1962/2000 is hereby modified, reducing the compensation from Z3,885031- to !225,000/-. The reduced compensation comes to ?.163 503!-. The Corporation is directed to deposit the remaining compensation with interest within three weeks from the date of receipt of a copy of this judgment and award. The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal, immediately. Office to draw the award, accordingly. In view of the disposal of the main appeals, the prayer sought in Misc.Cvl., filed in MFA No.3946/2005 14 and I.A.No. 11/2005 in MFA No.10813/2005 does not survive for consideration. Hence, they are dismissed as having become infructuous. Sd/ JUDGE Sd/ JUDGE tsn*