K.M. CHETHAN v. SHEKHAR DESAI

(BY MR. F S DABALI .,ADVOCATE) AND: K.M. CHETHAN S/O MANJUNATHA SHETTY AGED ABOUT 23 YEARS RESIDING AT NO.590 12TH MAIN, 5TH CROSS SARASWATHIPURAM MYSORE-570 001 ...APPELLANT ...RESPONDENT (BY MR. SYED ABDUL SABAR., ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.07.2014 PASSED IN MVC NO.1134/2012 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, MYSORE, AWARDING COMPENSATION OF Rs.2,07,428/- WITH INTEREST @ 6% FROM THE DATE OF HC-KAR - 3 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 PETITION TILL REALIZATION. THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 29.07.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P SREE SUDHA J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA CAV JUDGMENT These appeals are filed against the judgment and award dated 28.07.2014 passed by the III Additional District Judge and MACT, Mysore, in MVC No.1134 of 2012.

#2. The injured claimant met with an accident on

21.09.2012, filed a claim application claiming compensation of Rs.15,50,000/-. The Tribunal, considering the entire evidence on record, granted the compensation of Rs.2,07,428/- with interest at the rate of 6% per annum from the date of petition till realisation.

#3. Aggrieved by the said order, M.F.A. No.6280 of 2014 is preferred by the appellant-claimant in which it is mainly contended that he sustained fractured injuries which are grievous in nature. He took treatment as an inpatient for 15 HC-KAR - 4 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 days. He underwent three surgical operations and later, he was shifted to NIMHANS, Bengaluru and also to Vasan Eye Care, Bengaluru. Out of 10 injuries, injury Nos.1 to 6 are simple in nature and injury Nos.7 to 10 are grievous in nature. It is further contended that he was studying Diploma in Mechanical Engineering and lost his academic year. He lost his memory due to the fracture of his right wrist and unable to write properly. Still he is getting pain in the legs and not able to walk. read and sit properly and not in a position to attend day to day activities. He spent huge amount for medical expenses. The tribunal has not granted reasonable amount under the other heads and thus, requested for enhancement of compensation.

#4. Heard the arguments of learned counsel for both sides.

#5. The manner of accident shows that on 21.09.2012 while petitioner was proceeding to college from Keralapura in his TVS Fiero Motor Cycle bearing registration No.KA-13/L-9146 via Saligrama., On the way he came to Saligrama Yoganath HC-KAR - 5 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 Simhaswami Petrol Bunk, the KSRTC Bus bearing registration No.KA13/F-1625 came from Chunchanakatte side and dashed him. As a result, he fell down and sustained injuries.

#6. Learned counsel for KSRTC argued that, PW1, in the cross examination, admitted that he was coming on his bike from Saligrama towards Mysore on the left side of the road and bus was coming from Mysore and it was on the left side. He admitted Exhibits D1 to D3 photographs taken at the place of accident. The driver of the offending bus was examined as RW1 and he stated that though he has taken the bus to the extreme right left side of the road, the motor cycle came to the left side of the road and dashed the bus. As such, there is contributing evidence on their part.

#7. Exhibit P4 is the rough sketch and it shows that the bus was coming. But the Tribunal reconsidered that as per the Exhibit D3 photographs, bus was parked on the left side of the road, he applied brake suddenly and took the bus to the left side. It was observed that petitioner who was coming from opposite direction seen the bus coming on right side with high HC-KAR - 6 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 speed and to avoid the same, he took his right side and according to him, there was no contributory negligence on the part of petitioner. It was further observed that the evidence of RW1-driver of the bus cannot be accepted and held that there is no contributory negligence of the rider of the motorcycle. This Court finds it no reason to interfere with the said finding of the Tribunal.

#8. The petitioner sustained the following 10 injuries as per Exhibit P6: Sub ಮ(cid:18)(cid:10) ತರ ದ ತರ ದ !ಯ. ತರ ದ !ಯ. “1) ಎರ(cid:3) ಕ(cid:5)(cid:6) ನ (cid:8)ತ(cid:10) (cid:11) ರಕ(cid:10) (cid:12)(cid:13)(cid:14) ಗ(cid:16)(cid:17) (cid:18)(cid:10) Conjunctival Hemorrhage ಆ(cid:21)(cid:18)(cid:10) . 2) (cid:22)(cid:23)(cid:10) (cid:24)ಯ ಬಲ(cid:28)ಗದ(cid:30)(cid:31) 3) ಬಲ "ಲ# $%ಯ ಒಳ(cid:18)(ಯ )ಗದ(cid:30)(cid:31) !ಯ. 4) ಬಲ ಮ(cid:5)ಗಂ(cid:16)ನ ಒಳ(cid:28)ಗದ(cid:30)(cid:31) 5) ಎಡ (cid:22)ಂ,ಯ -ೕ/ ತರ ದ !ಯ. ತರ ದ !ಯ. 6) ಬಲ 01ಯ -ೕ23 ಗದ ಒಳ (cid:28)ಗದ(cid:30)(cid:31) 7)ಬಲಗ1ಯ 4ೕ,ಯ5 $%ಯ 6ಳ(cid:18)(7 89((cid:18)(cid:10) 8)ಬಲಗ1ಯ ಅ2(cid:14) . 9) ಬಲ ಮಂ,ಯ (cid:13)(cid:14) (Fracture of Inferior Pole of right patella) 10) ತ/ಯ(cid:30)(cid:31) -?@ ಊ(Bಂ,(cid:18)(cid:10) Temporal bone 89((cid:18)(cid:10) . ತ/ CD1ಯ ಎಡ(cid:28)ಗದ .” Sub arachnoid hemorrhage ಆ(cid:21)(cid:18)(cid:10) $%7 6ಳ(cid:28)ಗದ(cid:30)(cid:31) 89((cid:18)(cid:10) 89((cid:18)(cid:10) ಮ(cid:18)(cid:10) . .

#9. Out of 10 injuries, injury Nos.1 to 6 are simple in nature and injury Nos.7 to 10 are grievous in nature. The petitioner also examined doctor also as PW2 and he stated that petitioner sustained 21% to the right upper limb and to an HC-KAR - 7 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 extent of 17% to the right lower limb. He further stated that fracture bones of the injured are united, but, he is not fully recovered. There is no problem for him to read. But, if he writes for long time, he will get pain in the wrist. It is further stated by PW2 that the petitioner has to take pain killer tablets for his head ache. No surgery was done. Rods, plates and screws were not inserted.

#10. The petitioner stated that he was a good sportsman and due to injuries sustained in the accident, he lost academic career and he spent 40% towards repair of the vehicle. He was aged 21 years at the time of accident and the multiplier is 18. As he met with an accident in the year 2012, this Court finds it reasonable to take notional income as Rs.7,000/- per month as per the chart prepared by the Karnataka State Legal Services Authority. As per the medical evidence, he sustained 21% to the right upper limb and to an extent of 17% to the right lower limb. Therefore, 1/3rd of the same comes to 13%. Thus, the loss of future earning capacity comes to Rs.1,96,560/- (7,000 x 12 x 18 x 13%). HC-KAR - 8 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014

#11. The petitioner was admitted in the hospital for 12 days. Considering the age of the petitioner, period of hospitalisation, nature of injurious sustained by him and other relevant factors, this Court finds it just and reasonable to grant an amount of Rs.60,000/- for pain and suffering, Rs.30,000/- for loss of amenities, Rs.30,000/- per transportation, extra nourishment and attendant of charges. The Tribunal granted Rs.61,428/- towards medical expenses as per Exhibit P1 and the said amount is confirmed. The petitioner also claimed Rs.15,020/- towards repairs of the vehicle. But, the Tribunal considering the entire evidence on record, granted only Rs.8,000/- under the said head.

#12. Thus, in all, the claimant is entitled for the compensation of Rs.3,77,988/- with interest at 6% per annum as against Rs.2,07,428/- awarded by the Tribunal. Heads 1. Loss of future income 2. Medical expenses 3. Pain and Suffering 4. Loss of amenities 5. Transportation, nourishment and attendant charges Total Amount in Rs. 1,96,560/- 61,428/- 60,000/- 30,000/- 30,000/- 3,77,988/- HC-KAR - 9 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 IN MFA No.283 of 2015

#13. The Divisional Manager of KSRTC has filed this appeal against the same judgment and award passed by the Tribunal mainly contending that the Tribunal is not justified in holding that the accident occurred due to the entire negligence of the driver of the KSRTC bus without properly considering the entire evidence on record and the manner of accident. The alleged spot of accident was shown in spot mahazar and sketch towards the eastern side of the road without any basis and in the absence of any clue of glass pieces or break marks are found in the alleged spot. The bus and motorcycle were found on the western side of the road. It is contended that as per Exhibit P3 mahazar, one Pandu stated that bus came to the eastern side of the road and dashed the motorcycle coming from opposite direction and then bus dragged the motorcycle and it moved towards western side of the road and stopped there. But in the mahaar and sketch, no dragged marks of the motorcycle are found and the said statement of Pandu is improbable. The motor cycle was found on the right side of the bus and on the left side of the road. The motor cycle came from HC-KAR - 10 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 opposite direction on the wrong side and dashed on the right side corner of the bus. The Tribunal mechanically relying on the sketch held that claimant after seeing the bus turned into turned direction on the right side to avoid accident, at that time, the accident took place which is not the case of the claimant and in the absence of any material to substantiate the same. The said presumption of the tribunal is improbable. If at all it is correct, the motorcycle would have dashed to the front left side of the bus and not to the front right side of the bus. It is further contended that as per Exhibit P5 IMV report, the right side head light glass broken in the pieces of the bus and front head light of the motorcycle is broken. If really spot of accident shown in the sketch is correct, broken glass pieces would have been found in the alleged spot. The entire negligence was fixed upon the driver of the bus on the ground that charge sheet is filed against him and he has not made any complaint. It is also contended that the Tribunal erred in granting Rs.1,05,000/- towards pain and suffering without any basis and also granted Rs.8,000/- towards damage to the motor cycle. As per Exhibit P9-R.C. Book, one H.M. HC-KAR - 11 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 Shivakumar is the owner of the motor cycle and even Exhibit P13-spare parts purchased bills are in the name of the said person. The medical expenses are also granted excessively. Therefore, requested to set aside the order of the Tribunal.

#14. The manner of accident shows that on 21.09.2012 while petitioner was proceeding to college from Keralapura in his TVS Fiero Motor Cycle bearing registration No.KA-13/L-9146 via Saligrama., On the way he came to Yoganarasimhaswamy Petrol Bunk of Saligrama Yoganath Simhaswami Petrol Bank, the KSRTC Bus bearing registration No.KA13/F-1625 came from Chunchanakatte side, where the accident occurred on the motor cycle. Exhibits D1 to D3-photographs were admitted by P.W.1 during the cross-examination.

#15. Learned counsel for respondent-claimant took an objection regarding contributory negligence of the rider of the motorcycle and stated that as per exhibits D1 to D3, the bus was found on the left side of the road and in front of the bus, motor cycle was found and brake marks were found behind the bus. It clearly shows that bus was on the extreme left side of HC-KAR - 12 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 the road and motor cycle came from opposite direction and went to the wrong side and dashed the front right side corner of the bus. He further stated that as per Exhibit P5, IMV report, Right side headlight glass broken into pieces of the bus and front headlight of the motorcycle is broken.

#16. The Tribunal relied upon Exhibit P4 and stated that rider of the motorcycle was in fact coming on the right side and when he had seen the bus coming to the left side, to avoid the accident, he also came to the left side, and the said observation of the Tribunal is not proper. If at all it happened, the motorcycle would have dashed to the front left side of the bus, but not to the front right side of the bus. Therefore, this Court finds it just and reasonable to fix up the contributory negligence on the part of the rider of the motor cycle as 20% and driver of the KSRTC bus as 80%.

#17. Petitioner claimed Rs.15,020/- under Exhibit P13 and P9, for repairs of his motor cycle. But the learned counsel for KSRTC stated that as per Exhibit P9-R.C. Book, one H.M. Shivakumar is the owner of the motor cycle and even Exhibit HC-KAR - 13 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 P13-spare parts purchased bills are in the name of the said person but not in the name of the petitioner. The petitioner failed to prove that he incurred expenses for repair of the motor cycle and therefore, he is not entitled for the said amount.

#18. In the result, the following order is passed: (i) Both the appeals are allowed in part. (ii) The petitioner-claimant is entitled for the total compensation of Rs.3,77,988/- with interest at 6% per annum from the date of petition till the date of realization. (iii) The contributory negligence on the part of the rider of the motor cycle fixed as 20% and that of the driver of the KSRTC bus as 80% (iv) The KSRTC is directed to deposit 80% of the compensation within one month from the date of this order. (v) The KSRTC has already deposited 50% of the award amount and therefore, they are directed to deposit the balance amount with interest at 6% per annum within one month from the date of this order. HC-KAR - 14 - NC: 2026:KHC:42442 MFA No. 6280 of 2014 C/W MFA No. 283 of 2015 CNR: KAHC010359612014 (vi) On such deposit, the claimant is permitted to withdraw the entire amount along with the interest accrued on it. (vii) Entire amount in deposit before this Court is to be transferred to the Tribunal. Sd/- (P SREE SUDHA) JUDGE CS CT:NR List No.: 1 Sl No.: 74