Divisional Controller North West Karnataka State Road Transport Corporation v. Mahadev Shattuppa Patil
2019-10-11
ALOK ARADHE, P.G.M.PATIL
body2019
DigiLaw.ai
JUDGMENT : ALOK ARADHE, J. These appeals namely MFA No.22488/2012 and MFA No.22489/2012 have been filed by the North West Karnataka State Road Transport Corporation, in which the liability of the appellants to pay the compensation the extent of 50% to the claimants, the ground of contributory negligence has been challenged. MFA No.23047/2012 has been filed by the claimant in MVC No.546/2010 seeking enhancement of the amount of compensation. Since all the appeals arise out of the accident which took place on 17.7.2009 and the tribunal has decided all the cases by a common judgment, they were heard together and are being decided by this common judgment. 2. Facts giving rise to filing of these appeals briefly stated are that, the claimants in both the claim petitions, on 17.7.2009 at about 5.00 p.m. were traveling on a motorcycle bearing registration No.KA-22/J-7345. The claimant in MVC No.546/2010 was riding the motorcycle, whereas the claimant in MVC No.545/2010 was a pillion rider. It is the case of the claimants that near Bekkinkeri village of Belagavi-Kowad road, bus bearing registration No.KA-22/F-992, which was being driven in a rash and negligent manner, dashed against the motorcycle of the claimants. On account of the aforesaid accident, both the claimants suffered grievous injuries. 3. It was pleaded that petitioner in MVC No.545/2010 namely Mahadev is grandfather of the claimant in MVC No.546/2010 and is aged about 60 years and used to earn Rs. 4,000/-per month. It was further pleaded that on account of injuries the aforesaid claimant became disabled. Accordingly the compensation to the tune of Rs. 20,00,000/-was claimed. The petitioner in MVC No.546/2010 who was riding the motorcycle at the time of accident was aged about 20 years and was a student as well as a computer technician. He sustained grievous injuries and therefore compensation to the tune of Rs. 25,00,000/-from the respondents was claimed. 4. The corporation filed objections in both the cases in which inter-alia it was pleaded that no accident took place as alleged by the claimants. It was denied that the bus in question had dashed against the two wheeler. It was also denied that the claimants had sustained grievous injuries and that they spent huge amount for treatment. The age, income and occupation of claimants were also denied. The corporation also denied that there was negligence on the part of the bus driver.
It was denied that the bus in question had dashed against the two wheeler. It was also denied that the claimants had sustained grievous injuries and that they spent huge amount for treatment. The age, income and occupation of claimants were also denied. The corporation also denied that there was negligence on the part of the bus driver. It was averred that the driver of the bus was driving the vehicle very slowly and the two wheeler was being driven in a rash and negligent manner, which dashed against the front left side of the bus. It was also pleaded that police filed charge sheet against the claimant in MVC No.546/2010. It was further pleaded that the accident had occurred due to rash and negligent riding of the motorcycle and objection with regard to non joinder of necessary parties was also taken. 5. The claims tribunal, on the basis of the pleadings of the parties, framed the issues and recorded the evidence. The claims tribunal, vide impugned judgment dated 14.12.2011, held that the claimant in MVC No.546/2010 was negligent in causing accident to the extent of 50% and the instant case was a case of contributory negligence. Accordingly the driver of the bus was held negligent to the extent of 50% and the corporation was directed to pay the amount of compensation to the extent of 50%, which was quantified at Rs. 1,30,000/-in MVC No.545/2010 and Rs. 3,64,000/-in MVC No.546/2010. In the aforesaid factual background these appeals have been filed. 6. Learned counsel for the appellant corporation submitted that when the accident took place, the bus was stationary and in fact the motorcycle was being driven by the claimant in MVC No.546/2010 in a rash and negligent manner which hit the bus which was standing at the bus-stop. Therefore the finding recorded by the claims tribunal that the driver of the bus was negligent in driving the bus is perverse. It is further submitted that no liability could have been fastened on the corporation in the state of evidence on record. It is also submitted that on the basis of the complaint filed by the driver of the bus, a charge sheet was filed against the claimant in MVC No.546/2010 for rash and negligent driving. 7. On the other hand, learned counsel for respondent claimant submitted that the claimant in MVC No.546/2010 was working as computer hardware technician.
It is also submitted that on the basis of the complaint filed by the driver of the bus, a charge sheet was filed against the claimant in MVC No.546/2010 for rash and negligent driving. 7. On the other hand, learned counsel for respondent claimant submitted that the claimant in MVC No.546/2010 was working as computer hardware technician. While inviting the attention of this Court to the evidence of Praveen Laxman Patil, namely the claimant in MVC No.546/2010, learned counsel for the respondent pointed out that the bus in question was coming from opposite direction and hit the motorcycle which was being driven by the claimant in MVC No.546/2010. It was also pointed out that the road was narrow and with a view to avoid the potholes, the driver of the bus suddenly turned the bus, which hit the motorcycle which was being driving by the claimant in MVC No.546/2010. 8. Therefore it is submitted that the finding recorded by the claims tribunal with regard to contributory negligence is based on meticulous appreciation of evidence on record. It is further submitted that in any case the tribunal grossly erred in treating the notional income of the claimant in MVC No.546/2010 as Rs. 3,500/-per month and the same ought to have been taken as per the income chart prepared by the State Legal Services Authority. The notional income of the claimant in MVC No.546/2010 ought to have been taken at Rs. 5,000/-per month and therefore the amount of compensation be suitably enhanced. 9. We have considered the rival submissions made at the Bar and have perused the record. PW.1 Praveen Laxman Patil in his examination-in-chief in paragraph No.2 has stated that on 17.7.2009 at about 5.30 p.m., he along with his grandfather namely Mahadev was traveling on the motorcycle from Belagavi to Tevurwadi village. He has further stated that he was riding the motorcycle slowly on his left side. It has further been stated that when the motorcycle came near the bus-stop at Bekkinakere village on Belagavi-Kowad road, the bus in question driven by the driver came from opposite direction in a high speed in a rash and negligent manner and the driver in order to avoid the pot-holes on the road, drove the bus on the wrong side of the road and due to heavy speed lost control and dashed against the motorcycle which was being driven by him.
It has further been stated that due to the aforesaid injuries both the claimants sustained grievous injuries. 10. We have carefully perused the cross examination of the aforesaid witness. From the cross examination it is evident that no challenge has been made to the testimony of the aforesaid witness with regard to the averments made in paragraph No.2 of his examination-in-chief, in which the aforesaid witness has stated in detail the manner in which the accident took place. It is well settled in law that when the testimony of a witness is not challenged on a particular point, the same is taken to be accepted (See Muddasani Venkata Narsaiah vs. Muddasani Sarojana, (2016) 12 SCC 288 ). Therefore the version of the corporation with regard to the manner in which the accident took place cannot be accepted. 11. However from the statement of PW.1 himself it is evident that the bus had started moving from the bus-stop and admittedly the accident had taken place near the bus-stop. Therefore it can safely be inferred that the speed of the bus could not have been very high at the time of accident. Therefore, the tribunal, for the reasons assigned in paragraphs No.10 and 11 of the judgment has rightly held that the driver of the bus as well as the claimant in MVC No.546/2010 were liable for the accident on account of their negligence in the ratio of 50% each. Therefore we affirm the finding recorded by the claims tribunal in this regard. 12. Now we may advert to the claim of the appellant in MFA No.23047/2012 with regard to enhancement of the amount of compensation. Admittedly the claimant has not produced any evidence with regard to his income. Therefore assuming that even if the claimant in MVC No.546/2010, who was working as computer hardware technician, his notional income ought to have been taken into account at the rate of Rs. 5,000/-in the light of the chart prepared by the Karnataka Legal Services Authority with regard to the notional income. Therefore the notional income of the appellant is taken to be at Rs. 5,000/-per month and since he was unable to work for a period of four months, the appellant in MFA No.23047/2012 is entitled to a sum of Rs. 20,000/-instead of Rs. 14,000/-under the head loss of earning as he was unable to work for four months. 13.
Therefore the notional income of the appellant is taken to be at Rs. 5,000/-per month and since he was unable to work for a period of four months, the appellant in MFA No.23047/2012 is entitled to a sum of Rs. 20,000/-instead of Rs. 14,000/-under the head loss of earning as he was unable to work for four months. 13. Similarly, the appellant in MFA No.23047/2012 is entitled to a sum of Rs. 2,70,000/-under the head loss of future income on account of disability which has been assessed by the doctor namely PW.3. Thus, the compensation awarded to the appellant in MFA No.23047/2012 is enhanced by Rs. 87,000/-. However on account of contributory negligence of the appellant in MFA No.23047/2012, he shall be entitled to receive enhanced compensation of Rs. 43,500/-along with interest at the rate of 6% p.a. 14. In view of preceding analysis, MFA No.22488/2012 and MFA No.22489/2012 are dismissed, whereas MFA No.23047/2012 is partly allowed. To the aforesaid extent the award passed by the claims tribunal is modified. 15. The amount deposited by the appellant corporation before this Court shall be transmitted to the concerned claims tribunal.