MISCELLANEOUS FIRST APPEAL NO.103665 OF 2015 (MV)

C/W

MFA CROSS OBJ NO.100057 OF 2016 (MV)

IN MFA NO. 103665/2015

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED 07.08.2015, PASSED IN MVC.NO.108/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, AWARDING THE COMPENSATION OF RS.1,36,982/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION & ETC.

IN MFA.CROB NO. 100057/2016

BETWEEN:

SMT.GEETA W/O PRAKASH DANAPPANAVAR,

AGE: 47 YEARS, OCC: PRIVATE SCHOOL TEACHER,

R/O: RANEBENNUR, DIST: HAVERI.

...CROSS OBJECTOR

(BY SRI GIRISH S. HULMANI, ADVOCATE (ABSENT)

AND:

THE DIVISIONAL CONTROLLER, KSRTC,

HASSAN DIVISION, HASSAN.

(OWNER AND SELF INSURER OF THE

BUS BEARING NO.KA-13/F-1666)

NOW BY THE MANAGING DIRECTOR,

KSRTC, CENTRAL OFFICES, KH ROAD,

SHANTHINAGAR, BENGALURU-560027.

REP. BY ITS CHIEF LAW OFFICER.

...RESPONDENT

(BY SRI SC BHUTI, ADVOCATE)

THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC, PRAYING TO DISMISS THE APPEAL FILED BY THE RESPONDENT CORPORATION AND ENHANCE THE COMPENSATION AWARDED BY ADDL. SENIOR CIVIL JUDGE AND AMACT, RANEBENNUR IN MVC NO.108/2013 DATED 07.08.2015 BY ALLOWING THIS CROB AND ETC.

THE APPEAL AND THE CROSS OBJECTION COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

ORAL JUDGMENT

Challenging judgment and award dated 07.08.2015 passed by Addl. Senior Civil Judge and MACT, Ranebennur, (‘Tribunal’, for short) in MVC no.108/2013, this appeal and cross objection are filed.

Sri S.C. Bhuti, learned counsel for appellant submitted that appeal was by KSRTC, challenging finding of Tribunal on quantum. It was submitted, as per claimant at 1:00 p.m. on 01.04.2012, when she was travelling in KSRTC Bus no.KA-13/F-1666 from Harihar towards Shimogga, near Chellur pond, bus dashed against motorcycle no.KA-17/L-2507. In accident, claimant sustained grievous injuries and despite treatment at Mc-Gann Hospital, Shimogga and Nanjappa Hospital, Shimogga, Ullal Clinic at Ranebennur as well as KMC Hospital, Manipal, she did not recover fully and sustained loss of earning capacity. Claiming compensation, she filed claim petition under Section 166 of Motor Vehicles Act, 1988 (‘MV Act’, for short) against KSRTC.

On contest, wherein claim petition was opposed on all grounds including alleging negligence on part of motorcyclist, Tribunal framed issues and recorded evidence.

Claimant and Dr.Umanath Ullal deposed as PWs.1 and 2 and got marked Exs.P1 to P32. Driver of KSRTC bus was examined as RW.1 but, no documents were marked.

On consideration, Tribunal held accident occurred due to rash and negligent driving of bus by its driver, claimant had sustained permanent physical disability and was entitled for compensation assessed by it at Rs.1,36,982/-. Challenging same as excessive, KSRTC has filed appeal, while dissatisfied with quantum claimant has filed cross-objection.

It was submitted, as on date of accident claimant stated that she was 48 years of age, working as a teacher in private school and earning Rs.10,000/- per month as per Ex.P6 - salary certificate. However, Tribunal erred in taking only Rs.7,193/- as monthly income to award inadequate compensation. Even though claimant did not examine author of Ex.P6, Tribunal considered monthly income at Rs.7,193/- and awarded excessive compensation. It was submitted, wound certificate showed claimant as having sustained fracture of third rib on right side. However, Ex.P9 - disability certificate produced mentions fracture of three ribs which was not supported by X-ray/X-ray report. It was submitted, normally fracture of ribs do not cause loss of earning capacity. Despite same, Tribunal considered 5% as loss of earning capacity. It was further submitted,