Srikanth Rao Vs. State of Karnataka and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [ram mohan reddy, j] quantum of compensation bodily injury - held, bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. further, although it is not possible to equate money with human suffering or personal deprivation, the court has duty to make an attempt to award damages so far as money can compensate the loss. while considering deprivation, the court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. in awarding damages in personal injury cases, the compensation awarded by the court should be substantial and it should not be merely a token. section 168; quantum of compensation held, while deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. further, in granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. in personal injury actions, the two main elements are the personal loss and pecuniary loss. section 168; [ram mohan reddy, j] compensation speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a maruti car causing grievous injuries to the occupants and death of one person elbow joint of the right hand of the appellant was grievously injured mact awarded rs.10,000/- towards pain, shock and sufferings; rs.20,000/- towards grievous injuries; rs.4,000/- towards conveyance and attendant charges; rs.36,500/- towards medical expenses and rs.8,000/- towards loss of earnings for 2 months totalling to rs.78,500/- - appeal for enhancement held, the tribunal practiced miserliness in awarding compensation of rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. the joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. the impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. in fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. the disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. the elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. with the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. in the result, the compensation was enhanced to rs.3,40,420/- with interest at 6% p.a. (rs.50,000/- towards loss of amenities of life, happiness, frustration; rs.35,000/- towards loss of marriage prospects; rs.15,000/- towards conveyance, attendant charges, food and nourishment; rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; rs.97,920/- towards loss of future earning due to disability; rs.16,000/- towards loss of earning during laid off period; rs.15,000/- towards future medical expenses; rs.25,000/- towards loss of expectation of life and rs.36,500/- towards medical expenses). - the conciliation ended in failure. the failure report was submitted by the conciliation officer to the state government.order1. the petitioner has presented this writ petition praying for quashing the order of the state government refusing to refer the dispute between him and the management of k. devappa naik and sons about the imposition of penalty of dismissal from service against the petitioner for industrial adjudication. 2. the petition has come up of preliminary hearing after notice to the respondents. by consent of counsel appearing for the parties, it is taken up for final hearing. 3. the facts of the case in brief are as follows : the petitioner was conductor in a motor transport undertaking of the third respondent. a charge sheet dated 10th june, 1982 was issued to the petitioner alleging that on 8th june 1982 he allowed some passengers travelling in bus no. meg 4462 from manipal to mangalore to get down at hampanakatta but did not allow two others to do so and then he had also misbehaved with a passenger. the third respondent appointed an enquiry officer to enquire into the charges levelled against the petitioner. in the enquiry, the petitioner was found guilty of the charges. by order dated 30th november, 1982 (annexure-a), the petitioner was dismissed from service. the petitioner thereafter raised an industrial dispute before the jurisdictional conciliation officer. the conciliation ended in failure. the failure report was submitted by the conciliation officer to the state government. on consideration of the records, the state government made the order dated 11th january, 1948 and communicated the same to the petitioner. the relevant part of it reads : subject : i.d. between the workmen and the management of m/s. k. devappanaik and sons, proprietor, mahabaleshwara bus service, kankandy, mangalore, regarding alleged dismissal of service of sri srikantha rao, conductor, with effect from 30th november, 1982. with reference to the above subject, i am directed to state that government consider that the demand/dispute in question has no prima facie case for reference for adjudication, for the reason that the action of the management in dismissing the service of the workmen is legal, proper and justified. sufficient opportunity has been given and principle of natural justice has been followed.' questioning the validity of the said order, the petitioner has presented this writ petition. 4. the learned counsel for the petitioner submitted as follows. the fact that a departmental enquiry had been held and the prescribed procedure had been followed itself could not constitute a valid ground for the state government refusing to make the reference of adjudication before the labour court/tribunal the workman could plead and prove that the findings recorded were perverse or that the punishment imposed was actuated by malafides or by way of victimization and further that even if the finding that the workmen was guilty of the charge was based on evidence, that the punishment imposed was totally disproportionate to the gravity of the charges. further, the state government cannot deprive the petitioner of the opportunity of proving of those grounds before the labour court/tribunal by refusing to make a reference. 5. sri s. g. sundaraswamy, learned counsel for respondent-3, however submitted that once it is established that the state government had applied list mind to the question as to whether the dispute merit reference and had passed an order stating that the inquiry was held in accordance with law, this court cannot set aside such an order and direct the government to reconsider the matter. he also submitted that the grounds, which according to the petition he could urge before the labour court or tribunal on reference were irrelevant for a decision under s. 10 and that if only a reference is made, then only the workman could urged those grounds before the labour court/tribunal. 6. learned counsel for the petitioner however relied on the judgment of the supreme court in syndicate bank employees assn. v. government of india [1985-i l.l.j. 93] in support of his submission. 7. in the above case, the supreme court considered the validity of an order of the central government refusing to refer a dispute between the workmen of syndicate bank and its management. the order of the supreme court reads : at page 94. 'we are of the view that the ground on which the government of india has refused to refer the dispute relating to the imposition of punishment of stoppage of three increments on sri murugavelu the industrial tribunal is not a valid ground. it would not be right for the government of india to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. if such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. the management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker's claim for adjudication. such a situation cannot be countenanced by law. we must, therefore, set aside the order dated 2nd april, 1981 passed by the government of india declining to make a reference of the industrial dispute for adjudication to the industrial tribunal. we would direct the government of india to reconsider the question of making reference of the industrial dispute for adjudication without taking into account the aforesaid irrelevant ground which seems to have prevailed with them in declining to make a reference and the ground on which such reference is declined is improper or irrelevant, it would be open to the court under this appeal and for this purpose, we give liberty to the appellants to apply. the government of india will give its decision on the question whether the industrial dispute should be referred or not within 45 days from today. 2. the appeal is accordingly disposed of but with no order as to costs.' 8. the above judgment of the supreme court furnishes the answer to the contention raised by the petitioner in his favour. therefore, the state government should be directed reconsider the matter in the light of the aforesaid judgment of the supreme court. 9. in the result, i make the following order : i) writ petition is allowed; ii) the impugned order dated 11th january, 1984 is set aside; iii) the state government is directed to reconsider the question of making the reference afresh in accordance with law and in the light of the judgment of the supreme court extracted in para. 7 of this order. iv) prepare a carbon copy of this order and furnish it to the learned counsel for the respondents. 10. shri n. devadas, learned high court government pleader is permitted to file his memo of appearance for respondents within four weeks from today.

Judgment:
ORDER

1. The petitioner has presented this writ petition praying for quashing the order of the State Government refusing to refer the dispute between him and the Management of K. Devappa Naik and Sons about the imposition of penalty of dismissal from service against the petitioner for industrial adjudication.

2. The petition has come up of preliminary hearing after notice to the respondents. By consent of counsel appearing for the parties, it is taken up for final hearing.

3. The facts of the case in brief are as follows : The petitioner was Conductor in a Motor Transport Undertaking of the third respondent. A charge sheet dated 10th June, 1982 was issued to the petitioner alleging that on 8th June 1982 he allowed some passengers travelling in Bus No. MEG 4462 from Manipal to Mangalore to get down at Hampanakatta but did not allow two others to do so and then he had also misbehaved with a passenger. The third respondent appointed an Enquiry Officer to enquire into the charges levelled against the petitioner. In the enquiry, the petitioner was found guilty of the charges. By order dated 30th November, 1982 (Annexure-A), the petitioner was dismissed from service. The petitioner thereafter raised an industrial dispute before the jurisdictional Conciliation Officer. The Conciliation ended in failure. The failure report was submitted by the Conciliation Officer to the State Government. On consideration of the records, the State Government made the order dated 11th January, 1948 and communicated the same to the petitioner. The relevant part of it reads :

Subject : I.D. between the workmen and the management of M/s. K. Devappanaik and Sons, Proprietor, Mahabaleshwara Bus Service, Kankandy, Mangalore, regarding alleged dismissal of service of Sri Srikantha Rao, Conductor, with effect from 30th November, 1982.

With reference to the above subject, I am directed to state that Government consider that the demand/dispute in question has no prima facie case for reference for adjudication, for the reason that the action of the management in dismissing the service of the workmen is legal, proper and justified. Sufficient opportunity has been given and principle of natural justice has been followed.'

Questioning the validity of the said order, the petitioner has presented this writ petition.

4. The learned counsel for the petitioner submitted as follows. The fact that a departmental enquiry had been held and the prescribed procedure had been followed itself could not constitute a valid ground for the State Government refusing to make the reference of adjudication before the Labour Court/Tribunal the Workman could plead and prove that the findings recorded were perverse or that the punishment imposed was actuated by malafides or by way of victimization and further that even if the finding that the Workmen was guilty of the charge was based on evidence, that the punishment imposed was totally disproportionate to the gravity of the charges. Further, the State Government cannot deprive the petitioner of the opportunity of proving of those grounds before the Labour Court/Tribunal by refusing to make a reference.

5. Sri S. G. Sundaraswamy, learned counsel for Respondent-3, however submitted that once it is established that the State Government had applied list mind to the question as to whether the dispute merit reference and had passed an order stating that the inquiry was held in accordance with law, this Court cannot set aside such an order and direct the Government to reconsider the matter. He also submitted that the grounds, which according to the petition he could urge before the Labour Court or Tribunal on reference were irrelevant for a decision under S. 10 and that if only a reference is made, then only the Workman could urged those grounds before the Labour Court/Tribunal.

6. Learned Counsel for the petitioner however relied on the Judgment of the Supreme Court in Syndicate bank Employees Assn. v. Government of India [1985-I L.L.J. 93] in support of his submission.

7. In the above case, the Supreme Court considered the validity of an order of the Central Government refusing to refer a dispute between the workmen of Syndicate bank and its Management. The order of the Supreme Court reads : at page 94.

'We are of the view that the ground on which the Government of India has refused to refer the dispute relating to the imposition of punishment of stoppage of three increments on Sri Murugavelu the Industrial Tribunal is not a valid ground. It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker's claim for adjudication. Such a situation cannot be countenanced by law. We must, therefore, set aside the order dated 2nd April, 1981 passed by the Government of India declining to make a reference of the industrial dispute for adjudication to the Industrial Tribunal. We would direct the Government of India to reconsider the question of making reference of the industrial dispute for adjudication without taking into account the aforesaid irrelevant ground which seems to have prevailed with them in declining to make a reference and the ground on which such Reference is declined is improper or irrelevant, it would be open to the Court under this appeal and for this purpose, we give liberty to the appellants to apply. The Government of India will give its decision on the question whether the industrial dispute should be referred or not within 45 days from today.

2. The appeal is accordingly disposed of but with no order as to costs.'

8. The above judgment of the Supreme Court furnishes the answer to the contention raised by the petitioner in his favour. Therefore, the State Government should be directed reconsider the matter in the light of the aforesaid judgment of the Supreme Court.

9. In the result, I make the following order :

i) Writ petition is allowed;

ii) the impugned order dated 11th January, 1984 is set aside;

iii) The State Government is directed to reconsider the question of making the reference afresh in accordance with law and in the light of the judgment of the Supreme Court extracted in para. 7 of this order.

iv) Prepare a carbon copy of this order and furnish it to the learned counsel for the respondents.

10. Shri N. Devadas, learned High Court Government Pleader is permitted to file his memo of appearance for respondents within four weeks from today.