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2020 DIGILAW 1232 (KAR)

Divisional Controller Nekrtc, v. Mallappa

2020-06-25

V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - This is an appeal filed by the appellants questioning the validity of the judgment and award dated 17.09.2009 in MVC No.308/2007 passed by the Presiding Officer, Fast Track Court-I and Additional M.A.C.T., Koppal (hereinafter referred to as "the Tribunal" for short) 2. Germane facts for the disposal of this appeal are as under:- A claim petition came to be filed under Section 166 of the Motor Vehicles Act by the injured stating that on 03.11.2006 at about 10.30 a.m., when he was getting down from an auto-rikshaw near Bahaddur Bandi Cross at Koppal, a KSRTC bus bearing No.KA-37/F-77 came in a rash and negligent manner and dashed against him due to which he sustained grievous injuries and after taking First- Aid treatment at Government Hospital at Koppal, he was shifted to KIMS Hospital, Hubli. It is contended that he spent an amount of Rs.50,000/- towards medical expenses and Rs.15,000/- for other miscellaneous expenses. It is also contended by him that he was working as a coolie and was earning Rs.150/- per day and due to the injuries sustained by him in the accident, he is unable to carry on work in regular manner and sought for suitable compensation to the tune of Rs.5,40,000/- On issuance of notice, the second respondent/Corporation appeared before the Tribunal and filed written statement denying the claim petition averments in toto. It is contended that the very claimant himself was negligent in getting down from auto-rikshaw and that too the auto-rikshaw was a goods auto-rikshaw and as such, the accident has not occurred on account of negligent driving of the bus and there is a contributory negligence attributable to the claimant himself and sought for dismissal of the claim petition. Based on the rival contentions of the parties, the Tribunal framed following issues; 1. Whether the petitioner proves that he sustained grievous injuries on 3.11.2006 at about 10.30 A.M in an accident which occurred on Kataraki road, Bahaddurbandi cross due to rash and negligent driving of Heavy Passenger Vehicle No.KA-37/F-77 (N.E.K.R.T.C.) by its driver/respondent No.1? 2. Whether the petitioner is entitled for compensation? If so, how much and from whom? 3. What order? In order to discharge the burden, the injured claimant examined himself as P.W.1 and relied on the documentary evidence, which were marked vide Ex.P.1 to P.6. 2. Whether the petitioner is entitled for compensation? If so, how much and from whom? 3. What order? In order to discharge the burden, the injured claimant examined himself as P.W.1 and relied on the documentary evidence, which were marked vide Ex.P.1 to P.6. The Driver of the bus (offending vehicle) in question examined himself as R.W.1 but did not place documentary evidence on record. After hearing the parties and considering the evidence on record cumulatively, the Tribunal allowed the claim petition by adjudging the compensation amount of Rs.99,000/-. 3. It is that judgment, which is under challenge in this appeal. 4. The learned counsel for the appellant Sri. Prakash Hosamani vehemently contended that the Tribunal did not consider the case of the appellant/corporation in proper perspective and passed the impugned judgment and award. He specifically contended that the reasoning recorded by the Tribunal is whimsical and against the materials placed on record. He also contended that in the absence of any damage caused to the goods auto-rikshaw, the accident as is portrayed before the Tribunal has not at all taken place. The bus has been falsely implicated in the case. It is also his case that the Tribunal did not discuss the oral evidence adduced by the driver of the bus and therefore, sought for allowing the appeal. 5. Per contra, the learned counsel Sri. V. P. Wadavi, representing Sri. B. V. Somapur, advocate, supported the impugned judgment. It is his case that the driver of the bus has been charge-sheeted and the corporation did not challenge the charge-sheet and therefore, Tribunal was justified in coming to conclusion that the claimant has proved the accident in accordance with law. It is also his case that the impugned award of compensation awarded by the Tribunal is just and proper and sought for dismissal of the appeal. 6. In view of the rival contentions, the point that would arise for consideration of this Court is as under: "Whether the appellant has made out a case for allowing the appeal?" 7. My answer to the above point is in the negative for the following: REASONS 8. It is pertinent to note that there is no delay in lodging the complaint. My answer to the above point is in the negative for the following: REASONS 8. It is pertinent to note that there is no delay in lodging the complaint. The FIR, which is marked at Ex.P.1 clearly disclose that at about 10.30 a.m. near Bahaddurbandi Cross, Koppal when the claimant was deboarding auto-rikshaw, the the driver of the bus, did not take necessary precautions and as such, the accident has occurred. The complaint is lodged at 12.30 p.m. for an accident that occurred at 10.30 a.m. Since the lodging of the complaint is immediate, the argument put forth on behalf of the learned counsel for the appellant that a false case has been foisted for the injuries sustained by the claimant elsewhere cannot be countenanced in law. Further, hardly two hours time from the time of the accident was available for lodging of the complaint. It is uncomprehendable that within two hours somebody would concoct a case falsely and implicate the bus in question in the accident. So also, there is sufficient force in the arguments advanced on behalf of the respondent to the effect that the corporation did not challenge the chargesheet filed by the police. The driver of the bus also did not lodge any counter-complaint about the accident. 9. In the written statement of Corporation, it is clearly mentioned that the accident occurred on account of claimant de-boarding auto-rikshaw. In the absence of counter-complaint by the driver of the bus and police after making a thorough investigation having charge-sheeted, the driver of the bus, this Court is of the considered opinion that the finding recorded by the Tribunal on Issue No.1 does not call for any interference. 10. The learned counsel for the appellant alternatively submitted that the quantum of compensation is on the higher side. 11. The Tribunal while adjudging the compensation has taken into consideration that the injured has suffered fracture of tibia and fibula as per Ex.P.6. 12. Since the injured has suffered two major fractures, in Lok-Adalaths the injured would have been entitled for Rs.50,000/- on the head of pain and sufferings, but the Tribunal has granted Rs.40,000/- towards pain and sufferings, which in the considered opinion of this Court is just and reasonable. 13. The Tribunal has awarded Rs.40,000/- towards loss of amenities. The injured was in hospital for 26 days and having regard to the nature of fracture, he is immobilized. 13. The Tribunal has awarded Rs.40,000/- towards loss of amenities. The injured was in hospital for 26 days and having regard to the nature of fracture, he is immobilized. Therefore, granting of Rs.40,000/- towards loss of amenities by the Tribunal is also reasonable and does not call for any interference. 14. For the laid up period, injured has been awarded an amount Rs.9,000/-, which is also in the considered opinion of this Court, is just and reasonable. 15. The medical expenses and the incidental charges has been granted at Rs.5,000/- by the Tribunal, which needs no inteference. 16. Under such circumstances, this Court does not find any perversity in adjudging the total compensation of Rs.99,000/-. 17. For the foregoing reasons, this Court is of the opinion that none of the grounds urged by the learned counsel for appellant would hold water and accordingly, the above point is answered in negative and proceed to pass the following: ORDER The appeal is dismissed. No order as to costs. The learned counsel for the appellant/corporation submits that he has deposited the entire amount before this Court. The same shall be transmitted to the Tribunal for disbursement.