IN MFA NO.23117/2011 BETWEEN:

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1 1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 5 th /6 th DAY OF FEBRUARY, 2013 BEFORE THE HON BLE MRS. JUSTICE B.V. NAGARATHNA MISCELLANEOUS FIRST APPEAL NO.23117/2011(MV) A/W MISCELLANEOUS FIRST APPEAL CROB NO.817/2012 IN MFA NO.23117/2011 BETWEEN: NATIONAL INSURANCE CO. LTD., BRANCH- MANGALORE, REPRESENTED THROUGH ITS REGIONAL OFFICE CELL AT HUBLI, SUJATA COMPLEX, P.B. ROAD, HUBLI, REPRESENTED BY ITS ADMINISTRATIVE OFICER SMT. RENUKA Y. RANEBENNUR. (By SMT. PREETI SHASHANK, ADV.) APPELLANT AND: 1. SRI. PRAKASH KALLAPPA ARLIKATTI AGED ABOUT 27 YEARS, OCC: PETROL PUMP WORKER AND PAINTING(PRABHAT AUTO SERVICE) R/O BENGERI, GANDINAGAR, HUBLI 23 C/O SRI. RAMESH H.NO.437 AKSHAYA COLONY, SATTUR DHARWAD, DIST. DHARWAD. 2. SRI. A. MADHAVA NAIK, S/O LATE A. RAMANNA NAIK, AGE MAJOR, OCC: OWNER OF BENDRE BUS SERVICE R/O G. VIVEKANAND CORNER DESAI ROAD, HUBLI, OWNER OF THE BENDRE BUS

2 2 NO.KA-25/B-4147 RESPONDENTS (BY SMT. SHAILA BELIKATTI, ADV. FOR R1. R2 SD) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 14/03/2011 PASSED IN MVC NO.246/2009 ON THE FILE OF THE MEMBER, ADDL. MACT AND III ADDL. SENIOR CIVIL JUDGE, DHARWAD, AWARDING THE COMPENSATION OF RS.6,09,679/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. IN MFA CROB NO.817/2012 BETWEEN: PRAKASH KALLAPPA ARLIKARRI AGE 28 YEARS, OCC: PETROL PUMP WORKER AND PAINTING(PRABHAT AUTO SERVICE) R/O BENGERI GANDHI NAGAR, HUBLI 23 C/O RAMESH H.NO.437, AKSHAYA COLONY SATTUR DHARWAD, DT. DHARWAD... CROSS OBJECTOR (BY SMT. SHAILA BELLIKATTI, ADV.) AND: 1. A. MADHAVA NAIK, S/O LATE A. RAMANNA NAIK AGE MAJOR, OCC: OWNER OF BENDRE BUS SERVICE, R/O G. VIVEKANAND CORNER DESAI ROAD, HUBLI. 2. NATIONAL INSURANCE COMPANY LIMITED BRANCH MANGALORE BY ITS DIVISIONAL OFFICE, SUJATA COMPLEX, P.B. ROAD, HUBLI, DULY CONSTITUTED ATTORNEY(S). RESPONDENTS (BY SMT. PREETI SHASHANK, ADV. FOR R2)

3 3 THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAISN THE JUDGMENT AND AWRAD DATED 14/03/2011 PASSED IN MVC NO.246/2009 ON THE FILE OF MEMBER, ADDL. MACT AND III ADDL. SENIOR CIVIL JUDGE, DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. MISCELLANEOUS FIRST APPEAL AND MFA CROB COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T MFA No.23117/2011 is filed by the insurance company on the issue of negligence, while MFA Crob No.817/2012 is filed by the claimant seeking enhancement of compensation, by assailing the judgment and award passed in MVC No.246/2009 dated 14/03/2011 by the Additional MACT at Dharwad. 2. The relevant facts of the case according to the claimant are that on 20/02/2009 at about 2.20 p.m. he boarded a Bendre bus bearing No.KA-25-B-4147 plying from Navanagar to Hubli. When it approached Hubli near Chennamma Circle, the driver of the bus applied sudden brakes. As a result, the claimant was thrown out of the bus. He sustained grievous injuries. He was shifted to

4 4 KIMS Hospital, Hubli and despite treatment, he sustained permanent disability. He, therefore, filed a claim petition seeking compensation for the accidental injuries. 3. The claim petition was contested by the respondents before the Tribunal. In support of his case, the claimant examined himself as PW-1 and one Doctor- Suryakanth Hariraj Bhat Kallurayya as PW-2 and produced nineteen documents which were marked as Exs.P-1 to P- 19. While the respondent examined RW-1 and produced one document as Ex.R-1. On the basis the said evidence, the Tribunal awarded compensation of Rs.6,09,679/- with interest at 6% per annum from the date of petition till realization and fastened the liability on the insurance company. Being aggrieved by the said award, the insurer has filed the appeal and the claimant has filed cross objection seeking enhancement of compensation. 4. I have heard the learned counsel appearing for the appellant and the learned counsel for the respondent/

5 5 claimant as well as the learned counsel for the owner of the vehicle. 5. It is contended on behalf of the appellant/insurer that the Tribunal was not right in fastening the entire liability on the driver of the bus. The claimant was standing near the foot board of the bus and when he was alighting from the running bus, he fell down and sustained grievous injuries. Therefore, negligence is on the account of the act of the claimant in alighting from the running bus. Hence, the Tribunal could not have fastened the negligence on the driver of the bus. She, therefore, submits that the negligence has to be fastened on the claimant and the insurance company has to be exonerated. 6. Per contra, learned counsel for the claimant while supporting the judgment on the finding regarding negligence, has stated that the claimant is entitled to additional compensation.

6 6 7. Having regard to the rival contentions, the following points would arise for my consideration? 1. Whether the Tribunal was right in fastening the liability on the insurance company by holding that the driver of the bus was wholly negligent in causing the accident? 2. Whether the claimant is entitled to additional compensation? 8. From the material on record, it is not in dispute that the accident has occurred on 20/02/2009 when the claimant fell off of the bus near Chennamma Circle, Niligin- Road, Hubli. The point, however, to be considered is as to whether the claimant falling out of the bus, was by alighting from the running bus or due to the driver of the bus applying sudden breaks, as a result, he was thrown out of the bus. Though evidence has been let in on behalf of the driver of the bus, the Tribunal has not been impressed with the said evidence. On the other hand the finding of the Tribunal is that the bus was driven in a high

7 7 speed and in a rash and negligent manner and when the driver applied brakes suddenly, the impact was that the claimant was thrown out of the bus and the bus ran over his left leg. Therefore, there is no negligence which can be attributed to the claimant. On the other hand, the entire negligence is on the driver of the bus. This aspect has been rightly considered and answered by the Tribunal. Hence, it is held that the negligence has been rightly fastened on the driver of the bus. Accordingly point No.1 is answered and the appeal filed by the insurance company is dismissed. 9. Point No.2: The Tribunal has noted the following injuries from the wound certificate at Ex.P-4: Crushed wound to the left leg. X-ray of the left foot and knee is said to show fracture lateral CONDYLE of the left femur. X-ray of the left foot ankle. The said X-ray shows evidence of dislocation of inferior tibio-fibular joint and ankle joint soft tissue injury. This is said to be grievous injury and caused due to hard and blunt object.

8 8 10. The appellant s counsel has stated that the award of compensation is on the higher side particularly on the head of loss of future earning capacity and on the head of loss of amenities and as well as on the head of pain and suffering. She submits there was no evidence to show that the claimant was earning a sum of Rs.5,000/- per month and that the accident has occurred in the year 2009 but the Tribunal has assessed the monthly earning of the claimant notionally at Rs.5,000/- which is excessive. 11. Countering the same, learned counsel for the respondents/claimants has stated that the compensation awarded by the Tribunal is on the lower side on the head of loss of future income, loss of amenities and on incidental charges. Drawing my attention to the fact that the claimant had sustained amputation of the left leg above knee, stated that the claimant is not in a position to work as a painter or to work in a petrol bunk. Therefore, there is 100% disability. Placing reliance on the decision

9 9 of the Apex Court in the case of MOHAN SONI v. RAM AVTAR TOMAR reported in 2012-LAWS (SC)-1-3, she stated that in the case of amputation of the left leg below knee, the Apex Court had held the loss of earning capacity on account of disability should be at least 90%. As far as loss of marriage prospects is concerned, reliance is placed on another decision of the Apex Court in the case of GOVIND YADAV v. NEW INDIA ASSURANCE CO. LTD ACJ The claimant was initially admitted at KIMS Hospital, Hubli as per Ex.P-7 on 20/02/2009 and was discharged on 16/03/2009. He has also taken up follow up treatment. During his hospitalization, there was amputation of the left leg above knee. Exs.P-7 to P-19 are the documentary evidence with regard to the hospitalization and treatment. PW-2 is the doctor who has been examined in the matter. The disability certificate at Ex.P-19 issued by PW-2 states as follows:

10 10 (1) The length of amputation stump 20 cms from greater trochutio. (2) Pressure joints present over left amputation stump. (3) Above knee prosthesis in place with pelvic left in plact. (4) X-ray of left thigh(no.4990 dated ) shows amputation stump of left femur upper 3 rd level. 13. It is stated that there is 85% permanent disability with regard to the left lower limb. The Tribunal has taken the whole body disability to be 1/3 of the said percentage and rounded it off to 30%. The same is questioned by the claimant in this appeal. 14. Having regard to the fact that the claimant was eking out his livelihood as a painter and also was working in a petrol pump and as rightly assessed by the Tribunal the notional income at Rs.5,000/- per month, I am of the view that the percentage of disability considered by the Tribunal is on the lower side. In this context reliance could

11 11 be placed on the decision of the Supreme Court in MOHAN SONI v. RAM AVTAR TOMAR (2012-LAWS(SC)-1-3) wherein it has been stated that in the case of a cart puller, where there was amputation of the left leg below the knee, the loss of earning capacity must be 100% and at no case it can be less than 90%. In the instant case, however, the amputation is above knee. Taking note of the said decision, the loss of earning capacity must be assessed at 90%. The notional monthly income is Rs.5,000/- as assessed by the Tribunal and by applying the multiplier of 17, the compensation on the head of loss of earning capacity is assessed at Rs.9,18,000/ The compensation awarded by the Tribunal on various heads are as follows: ` 1. Pain and suffering 75,000=00 2. Future loss of income on account of disability 3,97,800=00 3. Loss of amenities 70,000=00 4. Loss of income during the laid up period 30,000=00

12 12 5. Diet and conveyance expenditure 20,000=00 6. Medical expenses 16,878= ,09,678=44 rounded off as Rs. 6,09,679= Having regard to the nature of the injuries, I am of the view that the compensation on the head of loss of amenities and incidental charges would require enhancement and also no compensation is awarded towards loss of marriage prospects. In the result, reassessment of compensation is as follows: 1. Pain and suffering 75,000/- 2. Loss of future earning capacity 9,18,000/- 3. Loss of amenities 1,00,000/- 4. Loss of income during laid up Period(for six months) 30,000/- 5. Diet, conveyance, attendance Charges and other incidental expenses 40,000/- 6. Medical expenses Rs.16,878.44/- rounded off to Rs.17,000/- 17,000/- `

13 13 7. Loss of marriage prospects 40,000/ TOTAL 12,20,000/ The enhanced compensation shall carry 6% per annum from the date of claim petition till realization. In the result, the appeal filed by the insurer is dismissed. The statutory amount to be transmitted to the Tribunal, Dharwad. The cross objection filed by the claimant is allowed in part. 75% of the total compensation shall be deposited in any Nationalized Bank initially for a period of five years. The balance compensation shall be released to the claimant. The claimant shall be entitled to draw the periodical interest from the deposited amount. Parties to bear their respective costs. Kmv SD/- JUDGE