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2019 DIGILAW 748 (KAR)

Divisional Controller NEKRTC v. Namdev

2019-03-27

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. These two appeals are filed by the insurer and the claimant being aggrieved by the judgment and award dated 22.09.2017 passed in MVC No.2128/2014 by the II Addl. Senior Civil Judge and MACT VII at Vijayapura. 2. The brief facts of the case are as follows: On 26.4.2014 at about 10.15 a.m., the petitioner claimant was travelling in Ape auto rickshaw bearing No.MH 23/X 1244 from Kumbari village towards Solapur. The driver of the said auto was driving the same in slow manner following traffic rules. When the said vehicle came near Bandapatte Bricks Factory near Jamadar Vast at Kumbari Village on Kumbari to Solapur road, at that time one bus bearing Reg. No.KA 32/F-1735 came from back side of the auto rickshaw and dashed to it, resulting in accident, due to this impact, petitioner sustained fracture to right leg, right hand and injuries all over the body. He was immediately shifted to Civil Hospital Solapur, thereafter shifted to Ashwini Hospital in Solapur for treatment. The petitioner has taken treatment as inpatient and spent more than Rs.50,000/- for his treatment. Now he is unable to do any work as earlier. Therefore he claimed compensation of Rs.5,00,000/- against the Divisional Controller, NEKRTC Corporation, Kalaburagi. 3. In pursuance to the notice respondent appeared before the Tribunal and filed his written statement. He denied the entire contents of the petition and he has denied the accident, involvement of the vehicle and its liability. The driver of the bus was driving the same in cautious and in normal speed following traffic rules but the driver of the auto rickshaw came from backside driven by its driver in great speed, rash and negligent manner and took his auto on the left side after overtaking the bus and in that event dashed to the bus. Therefore, the accident occurred due to the fault of the auto rickshaw driver. He has denied the age, occupation and earning of the petitioner. Owner and insurer of the auto rickshaw are necessary parties. Hence, petition be dismissed. 4. On the basis of the pleadings of both the parties, the Tribunal framed issues. The petitioner claimant got examined himself as PW1 and has got examined Dr. S. S. Nagathan as PW2 and produced documents at Ex.P1 to P10. Respondent has not produced any oral or documentary evidence. Hence, petition be dismissed. 4. On the basis of the pleadings of both the parties, the Tribunal framed issues. The petitioner claimant got examined himself as PW1 and has got examined Dr. S. S. Nagathan as PW2 and produced documents at Ex.P1 to P10. Respondent has not produced any oral or documentary evidence. Learned Member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.1,33,720/- with interest at 9% p.a. from the date of petition till realization. 5. The Divisional Controller of NEKRTC Corporation being aggrieved by the said judgment and award has filed MFA No.202384/2017 to set aside the impugned judgment and award. The claimant has filed MFA No.200082/2018 seeking enhancement of compensation. 6. The learned counsel for the Corporation submitted that there is a contributory negligence on the part of the auto driver in causing the accident and that the Tribunal has not considered the same. The claimant has also not produced his wound certificate and the doctor examined is not a treated doctor and therefore, the evidence of PW2 would not have been accepted. Learned counsel further submitted that the tribunal has awarded interest at 9% p.a. which is erroneous. 7. Per contra, learned counsel for the claimant supported the impugned judgment and award partly and submitted that the bus came from behind and dashed to the back side of the auto rickshaw and therefore there is no question of any contributory negligence on the part of the driver of the auto rickshaw. Moreover, the charge sheet was filed only against the driver of the bus, which is not disputed. Therefore, there is no question of contributory negligence on the part of the auto driver. Learned counsel further submitted that the petitioner has produced the case sheet at Ex.P8 and discharge card at Ex.P4 and that the disability of the claimant accepted by the Tribunal is on the lower side. Learned counsel further submitted that the income of the petitioner claimant is taken at Rs.6,000/- per month by the Tribunal which ought to have been taken at Rs.7,000/- per month. 8. Heard both the learned counsel for the parties. 9. After having heard both the learned counsel for the parties, the following points arise for consideration before this Court. "1. Learned counsel further submitted that the income of the petitioner claimant is taken at Rs.6,000/- per month by the Tribunal which ought to have been taken at Rs.7,000/- per month. 8. Heard both the learned counsel for the parties. 9. After having heard both the learned counsel for the parties, the following points arise for consideration before this Court. "1. Whether the Corporation has made out grounds to interfere with the impugned judgment and award, to set aside or modify the same? 2. Whether the claimant has made out grounds to enhance the compensation and accordingly modify the award?" 10. Point No.1. The Corporation has questioned the legality of the judgment and award on the ground that the Tribunal has not considered the contributory negligence on the part of the auto rickshaw driver in causing the accident. Admittedly, the police have filed the charge sheet against the driver of the Corporation for having caused the accident in question as could be seen from Ex.P6 Challan. The respondent-Corporation has not examined its driver in order to support its contention that there is contributory negligence on the part of the driver of the auto rickshaw in causing the accident. The driver of the bus belonging to Corporation would have been best witness to prove the contributory negligence, if any, on the part of the auto rickshaw driver. It is not disputed that the bus belonging to the Corporation dashed to the rear portion of the auto rickshaw which was going ahead of the bus. Therefore, the very fact that the bus dashed to the rear side of the auto rickshaw goes to show that the accident was caused due to rash and negligent driving on the part of the driver of the bus and therefore the concerned police have filed the charge sheet against the driver of the bus. 11. Under these circumstances, the finding recorded by the Tribunal that the accident in question occurred only due to rash and negligent driving of the bus belonging to Corporation and that there is no contributory negligence on the part of the driver of the auto rickshaw cannot be found fault with. Therefore, I hold that the Corporation has not made out any grounds to interfere with the impugned judgment and award in this regard. Accordingly, this point is answered in negative. 12. Point No.2. Therefore, I hold that the Corporation has not made out any grounds to interfere with the impugned judgment and award in this regard. Accordingly, this point is answered in negative. 12. Point No.2. It is the case of the petitioner that he was working as coolie and earning Rs.10,000/- per month and now due to accidental injuries he is unable to work and he has become permanently disabled. On this aspect, the petitioner claimant has got examined himself and also examined Dr. Shantappa Shidagondappa Nagathan as PW2 who has issued the disability certificate of the petitioner as per Ex.P9. The petitioner has produced case sheet at Ex.P8 and discharge card at Ex.P4 which reveals that he had sustained right femur mid shaft fracture. He was treated in the Civil Hospital Solapur and also in Ashwini Rural Medical College Hospital & Research Centre, Solapur. He was inpatient for 11 days. PW2 has deposed that he has examined the claimant and issued disability certificate stating that the petitioner is suffering from permanent disability of 20-25% relating to right lower limb. The Tribunal has accepted the same and accordingly, permanent disability of the petitioner to the whole body is taken at 7% in order to assess loss of future income due to disability, it cannot be held as against norms or material on record. The petitioner has not produced any evidence in order to prove his claim that he was earning Rs.10,000/- per month as a coolie. In the absence of positive evidence, the Tribunal has considered the income of the petitioner at Rs.6,000/- per month which is proper and there is no need to interfere with the consideration of income of the petitioner at Rs.6,000/- per month. 13. Under these circumstances, I hold that the claimant has also not made out any grounds to interfere with the impugned judgment and award and enhance the compensation. Accordingly, this point is also answered in negative. 14. Learned counsel for the Corporation submitted that the Tribunal has awarded interest at 9% p.a. which ought to have been at 6% per annum. The Tribunal has awarded interest at 9% per annum on the basis of the dictum of the Hon'ble Apex Court in the case of Municipal Corporation of Delhi, Delhi vs. Association of Victims of Uphaar Tragedy and Others, (2012) AIR SC 100. The Tribunal has awarded interest at 9% per annum on the basis of the dictum of the Hon'ble Apex Court in the case of Municipal Corporation of Delhi, Delhi vs. Association of Victims of Uphaar Tragedy and Others, (2012) AIR SC 100. The Hon'ble Supreme Court of India has observed in the said case that interest has to be awarded considering the prevailing bank rate of interest. Therefore, awarding interest at 9% p.a. cannot be held as illegal. 15. Under these circumstances, It becomes crystal clear that both the appeals are liable to be dismissed. Accordingly, I proceed to pass the following: ORDER Both the appeals are hereby dismissed. The compensation deposited in MFA No.202384/2017 shall be transmitted to the concerned Tribunal.