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2023 DIGILAW 438 (KAR)

Managing Director K. S. R. T. C. v. Manjamma H N

2023-03-14

H.B.PRABHAKARA SASTRY

body2023
JUDGMENT/ORDER 1. The present appellant - K.S.R.T.C. has challenged the impugned judgment and award dtd. 13/1/2020, passed by the learned Senior Civil Judge and Motor Accident Claims Tribunal at Holenarasipura, (hereinafter referred to as "the Tribunal" for brevity), which was instituted by the present respondent No.1, who, as a claimant had instituted a claim petition under Sec. 166 of the Motor Vehicles Act, 1988, seeking compensation of a sum of Rs.20, 00, 000.00 with interest at Rs.18.00% per annum, for the injuries alleged to have been sustained by her in a road traffic accident said to have occurred on the date 27/1/2015. 2. The summary of the case of the claimant before the Tribunal was that, on the date 27/1/2015, at about 5:00 p.m., when the claimant along with her family members was travelling in a Swift Car bearing Registration No.KA-03/MT-8960 near the Cross of NH-234 on Charmadi Ghat, Tharuve village, a KSRTC Bus bearing registration No.KA-19/F-2848, being driven by its driver in a rash and negligent manner, dashed to the claimant's Car, due to which road traffic accident, the claimant sustained simple as well grievous injuries on her body. She was shifted to the Government Hospital at Mudigere and then to Mangala Hospital, Hassan. The claimant has stated that she took treatment as an in-patient for one week in the Hospital and spent a sum of Rs.1, 00, 000.00 towards the medical expenses. She also stated that, after the accident, she is unable to work as usual. She further stated that even at the time of giving her evidence, she was taking treatment as an outpatient. Stating that at the time of accident, by working as an Advocate, she was earning a sum of Rs.1, 00, 000.00 per month, however, due to the injuries sustained by her in the road traffic accident, she is unable to do any work as she was doing prior to the accident, has claimed a compensation of a sum of Rs.20, 00, 000.00 from the respondents before the Tribunal, arraigning them as the driver/conductor and owner-cum-insurer of the alleged offending Bus. 3. After the service of summons, it was only respondent No.2 therein who appeared and filed its written statement, wherein it denied the averments made in the claim petition. It denied the manner of occurrence of the accident and also the alleged disability of the claimant including her alleged income. 3. After the service of summons, it was only respondent No.2 therein who appeared and filed its written statement, wherein it denied the averments made in the claim petition. It denied the manner of occurrence of the accident and also the alleged disability of the claimant including her alleged income. The respondents No.1 and 3 before the Tribunal remained absent, as such they were placed ex-parte. 4. Before the Tribunal, the claimant got herself examined as PW-1 and also examined one Dr. Jagadish as PW-2 and got marked documents from Exs.P-1 to P-18 and Exs.C-1 and C-2. However, on behalf of the respondents, neither any witness was examined nor any documents were got marked. 5. After framing the issues and recording the evidence led by both side, the Tribunal, by its impugned judgment dtd. 13/1/2020, allowed the claim petition in part, holding the respondent No.2 before it (who is not a party here), liable to pay the compensation to the claimant of a sum of Rs.2, 21, 400.00 together with interest thereupon at the rate of Rs.6.00% per annum from the date of the claim petition till the date of deposit, under the following heads with the sum shown against them: Challenging the said judgment and award passed by the Tribunal, the appellant - KSRTC has preferred this appeal. 6. The respondent No.1 herein (claimant) is represented by her learned counsel. The respondent No.2 herein who was the respondent No.1 before the Tribunal is said to be the driver-cum-conductor of the alleged offending KSRTC Bus bearing Registration No.KA-19/F2848, for whom the notice is held sufficient vide order dtd. 22/6/2022. 7. Records are called for from the Tribunal and the same are placed before the Court. 8. Learned counsel for the appellant - KSRTC and learned counsel for the respondent No.1(claimant) are physically appearing before the Court. 9. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and also the records of the Tribunal. 10. The appellant - KSRTC has raised only one ground in its memorandum of appeal which is about the alleged physical disability of the claimant and the assessment of the percentage of disability by the Doctor and its acceptance by the Tribunal. 10. The appellant - KSRTC has raised only one ground in its memorandum of appeal which is about the alleged physical disability of the claimant and the assessment of the percentage of disability by the Doctor and its acceptance by the Tribunal. However, no where in the memorandum of appeal, the appellant has raised any objection regarding the finding of the Tribunal about answering issue Nos.1 and 2 framed by it in the affirmative, holding that the claimant before the Tribunal has proved that she sustained injuries in a road traffic accident that occurred on the date 27/1/2015, involving a KSRTC Bus bearing registration No.KA-19/F-2848 and that the occurrence of the said road traffic accident was solely due to the rash and negligent driving of the said Bus by its driver. It is also not contested by the appellant - KSRTC about the liability of the respondents before the Tribunal to pay the compensation to the claimant who claimed to have sustained injuries in the said road traffic accident. As such, the question of occurrence of the road traffic accident on the date, time and place mentioned in the claim petition and the rash and negligent driving on the part of the driver of the KSRTC Bus bearing registration No.KA-19/F-2848 need not be re-analysed. Furthermore, the claimant who got herself examined as PW-1, also got produced the documents at Exs.P-1 to P-8, which inter alia includes the copies of the FIR, complaint, charge sheet, crime detail form, rough sketch, IMV report, wound certificate and discharge summary. Copy of the charge sheet at Ex.P-17 would go to show that, the driver of the offending Bus was charge sheeted for the alleged offences punishable under Ss. 279 and 338 of the Indian Penal Code, 1860. Admittedly, no witness was examined from the respondents' side. Thus, the evidence of PW-1, which is corroborated by the documentary evidence at Exs.P-1 to P-8 would go to show that, the road traffic accident in question has occurred on the date, time and place mentioned in the claim petition and that the same has occurred solely due to the rash and negligent driving of the KSRTC Bus bearing registration No.KA-19/F-2848 by its driver, as such, for the injuries said to have been sustained by the claimant, the respondent No.2 before the Tribunal was held liable to pay the compensation to the claimant. 11. 11. Learned counsel for the appellant - KSRTC in his argument submitted that, his only argument is on the point of quantum of compensation, particularly, the compensation awarded towards the head of loss of income due to permanent disability, wherein, the Tribunal has taken the percentage of permanent disability at 5%. Learned counsel submitted that even according to the Doctor who was examined as PW-2, the functional disability was only 3%, as such, taking the percentage of permanent disability at 5% is on the higher side. 12. Learned counsel for the respondent No.1 (claimant) in her argument submitted that, the present appeal filed by the appellant (KSRTC) is not at all maintainable since the present appellant was not a party at all before the Tribunal, as such, none of the parties before the Tribunal have filed this appeal. 13. A perusal of the cause title of the three respondents before the Tribunal would go to show that, the respondent No.1 was shown by his name and he was described as the driver/conductor of the alleged offending KSRTC Bus. Respondents No.2 and 3 were shown as the Divisional Controller, KSRTC, Putturu Division and the Manager, KSRTC, B.C. Road Depot, D.K. District, respectively. Thus, admittedly, the present appellant, who is the Managing Director, KSRTC, Central Head Office, Shanthinagar, Bengaluru, represented by its Chief Law Officer, was not at all a party before the Tribunal. Further, no material is produced before the Court to show that all the litigations to be filed by or against the KSRTC are to be filed by or against the Managing Director of the KSRTC alone. As such, it is not even the case of the learned counsel for the appellant - KSRTC that the respondent No.2 in the Tribunal, i.e. the Divisional Controller and respondent 3 - The Manager, KSRTC, B.C. Road Depot, D.K. District, were barred from filing any appeal against the impugned judgment and award passed by the Tribunal, wherein they were parties to the litigation. As such, the argument of the learned counsel for the respondent No.1 herein (claimant) that the appellant KSRTC is a stranger to the claim petition cannot be rejected. 14. As such, the argument of the learned counsel for the respondent No.1 herein (claimant) that the appellant KSRTC is a stranger to the claim petition cannot be rejected. 14. Irrespective of the maintainability of the appeal, when the contention taken up in the memorandum of appeal on its merit is concerned, it can be seen that the appellant has not specifically challenged the quantum of compensation which is awarded by the Tribunal towards the following heads with the sum shown against them. The only ground taken up by the appellant - KSRTC as well the argument addressed by the learned counsel for the appellant - KSRTC was regarding the acceptance of the alleged permanent disability at 5% by the Tribunal instead of 3%. 15. Undisputedly, the claimant was a practicing Advocate at the time of the road traffic accident. Her contention in the claim petition as well in her evidence in that regard has not been denied or disputed from the KSRTC side. She claims her age to be 30 years as at the time of the road traffic accident, which is further corroborated by the medical documents produced by her including Exs.P-7 and P-8. Though she has stated that her income was at a sum of Rs.1, 00, 000.00 per month at the time of the road traffic accident, however, in the absence of any documentary proof and corroborative evidence, the Tribunal has taken her income at a sum of Rs.9, 000.00 per month, which finding also has not been challenged by the appellant - KSRTC. 16. The very same claimant, as PW-1 has stated in her evidence that, subsequent to the injuries sustained by her in the road traffic accident, she is unable to work with full diligence as an Advocate as she was working prior to the accident. Thus, she has expressed her physical disability in continuing with her avocation with the same vigor and force with which she was proceeding earlier. 17. PW-2 Doctor who claims to have treated the claimant has stated that, he has assessed the disability of the claimant and has come to a conclusion that the total disability is 5% in respect of the facial fracture, which includes 2% esthetic and 3% functional disability. He has also opined that the claimant needs further surgery, cost of which would be a sum of Rs.20, 000.00. He has also opined that the claimant needs further surgery, cost of which would be a sum of Rs.20, 000.00. In his crossexamination, except making a suggestion that the claimant was not suffering with any disability, nothing could be elicited, resulting in weakening the evidence of PW-2 given in his examination-in-chief regarding the disability. 18. The learned counsel for the respondent No.1 (claimant) in her argument submitted that till date, the claimant is finding it very difficult in addressing her arguments effectively before the Courts, due to the facial problem and also finding it very difficult to address vocally before the Court. She also submits that there is facial disfiguration of the claimant due to the injuries suffered by her in the road traffic accident in question. Though the alleged facial disfiguration does not find a place in any of the medical documents produced by the claimant before the Tribunal, however, the contention of the claimant that as an Advocate, due to the injuries suffered by her in the facial region, more particularly, the Dento-alveolar fracture of lower anterior tooth and she continuing to suffer tenderness at chin region leading to some disability in pursuing her avocation as an Advocate, particularly in addressing her argument, cannot be ignored. As such, I do not find any discrepancy with the Tribunal accepting the 5% disability as assessed by PW-2 Doctor as the permanent disability with which the claimant is suffering with. Thus, by taking such percentage of disability, since the Tribunal has assessed the quantum of compensation towards loss of income due to said permanent disability rightly at a sum of Rs.91, 800.00, I do not find any reason to interfere even under the said head of compensation also. Thus, I do not find any reason to interfere in the impugned judgment and award passed by the Tribunal. Accordingly, I proceed to pass the following:- O R D E R The appeal filed by appellant/KSRTC is dismissed as devoid of merit; The statutory amount in deposit by the appellant - KSRTC in the Registry be transmitted to the concerned Tribunal, without delay; Draw the award accordingly. Registry to transmit a copy of this judgment to the concerned Tribunal, along with its records, without delay.