M. Vijaya Kumar Vs. Karnataka State Road Transport Corporation and anr. - Court Judgment

Excerpt:
(a) the motor vehicles act, 1988 (central act no. 59 of 1988) - section 173 -- appellant sustained multiple injuries in an accident due to rash & negligent driving by ksrtc bus driver, was hospitalised for a month and underwent 2 operations & referred for further treatment -- appellant also took leave for 31/2 months incurring toss of salary, incentive and bonus -- total compensation awarded by tribunal was only rs. 32,500/- only - the court holding tribunal's award inadequate, held, appellant entitled to rs. 62,500/-. - section 13(4) & security interest (enforcement) rules, 2002, rules 6 & 8 & contract act (9 of 1872), section 73: [p.d. dinakaran, c.j & v.g. sabhahit, j] sale of secured assets -tenders invited from general public for auction of movable and immovable properties on as is where is condition-petitioner highest bidder having knowledge of said facts has submitted his bid - however, failed to deposit 75% of bid amount within extended time for making deposit - non-compliance with terms of contract by petitioner property notified by secured creditor for re auction held, secured creditor not guilty of breach of contract. mere fact that section 13(4) of sarfaesi act enables the secured creditor to take possession of property would not necessarily mean that secured creditor would have taken vacant possession of property before 75% of bid amount is deposited.section 13(4) & security interest (enforcement) rules, 2002, rules 6 & 8 & contract act (9 of 1872), section 73: [p.d. dinakaran, c.j & v.g. sabhahit, j] sale of secured assets -tenders invited from general public for auction of movable and immovable properties on as is where is condition-petitioner highest bidder having knowledge of said facts has submitted his bid - however, failed to deposit 75% of bid amount within extended time for making deposit - non-compliance with terms of contract by petitioner property notified by secured creditor for re auction held, secured creditor not guilty of breach of contract. mere fact that section 13(4) of sarfaesi act enables the secured creditor to take possession of property would not necessarily mean that secured creditor would have taken vacant possession of property before 75% of bid amount is deposited. - (c) whether the petitioner is bad for non-joinder of necessary parties? mys 9568. it further held that the respondents in the claim petition failed to prove that there was any negligence or rashness in the driving of auto rickshaw bearing no. they failed to prove that the accident had occurred on account of rash and negligent driving of auto rickshaw. 10 and submitted that in total there have been 5 fractures as-well appear from ex. 1 as well as the effect that a steel rod was placed in the left thigh of p. 3 further discloses that x-ray of nostril bone is fractured of nostril basis (left). it also reveals fracture of right maxilla as well as fracture of mandible and the case was referred for opinion. 1 apart from this that have been mentioned by the trial court well. respondents 1 & 2 shall be jointly and severally liable to pay the amount awarded as well as the costs and interest as referred to above and the award is modified to that extent with reference to mvc claim no.hari nath tilhari, j.1. this appeal is under section 173 of motor vehicles act, 1988 arising from the judgment and award dated 1.8.1991 in m.v.c. case no. 736/88 given by the motor accident claims tribunal no. 8, bangalore city awarding in total a sum of rs. 32,500/- as compensation as against claim of rs. 1,80,000/-. the dispute in the appeal primarily is confined to the quantum of compensation.2. the facts of the case in brief are that on 5.11.1987 at about 10.15 p.m. the claimant alongwith the petitioner in mvc no. 735/88 was returning to their respective houses situated at magadi road, bangalore after viewing the second show of kannada movie in savitha theatre, malleshwaram, bangalore and had walked upto central theatre. they had boarded in an auto rikshaw bearing no. myf 1471 in order to go to their houses. on the way the said rickshaw was proceeding from north to south in platform road, near krishna flour mills. bts bus bearing no. myf 9568 driven by the second respondent in a rash and negligent manner came with a high speed and dashed against the auto rickshaw. consequently the petitioner/appellant aswell as the petitioner in mvc no. 735/88 fell down and sustained multiple injuries all over the body. they were taken to the k.c. general hospital and thereafter to victoria hospital. according to the claimant's case claimant/appellant remained as inpatient from 5.11.1987 to 7.12.1987 and during this period according to the claimant's case he had to undergo two operations and later he was referred to government dental college, bangalore where he took treatment. the claimant had stated in the claim petition that claimant took leave from 6.11.1987 to 22.2.1988. during this period i.e., the leave period the claimant had asserted that he had lost his salary, incentive and bonus. the claimant averred in the claim petition that a sum of rs. 20,000/- was spent towards medical expenses, conveyance and nourishment charges. it is further stated that even he had yet to spend another sum of rs. 5,000/-towards medical expenses. thus according to claimant medicalexpenses may come to rs. 25,000/-. a perusal of the claim petition in paragraph 25 thereof indicates the bifurcation of the compensation which has been claimed to the tune of rs. 1,80,000/- as under;a)for pain and suffering rs. 50,000.00b) for loss of amenities rs. 25,000.00c) shortened expectation of life rs. 25,000.00d) loss of earnings rs. 8,000.00e) loss of earning capacity rs. 22,000.00f) medical treatmenti) so far spent rs. 10,000.00ii) future expenditure rs. 5,000.00g) conveyance, attendants, nourishment etc., rs. 10,000.00h) special damages rs. 25,000.00 total rs. 1,80,000.003. the claim was hotly contested by 1st respondent i.e., ksrtc. they denied the averments made in the claim petition and asserted that petition was not maintainable, and was liable to be rejected in regard to non-rejoinder of the parties such as the driver, owner, insurer of auto rickshaw bearing no. myf 1471 were also necessary parties. the respondents further asserted that it is wrong to say that incident happened due to rash and negligent driving of the bus bearing no. myf 9568. it has further been averred that accident had taken place on account of rash and negligent driving of auto rickshaw bearing no. myf 1471 that the bus driver and the second respondent is in no-way responsible for the same. it was averred that the petition is full of incorrect statement of facts. 1st respondent further alleged that the compensation that has been claimed to the tune of rs. 1,80,000/- is exaggerated and highly excessive. the 2nd respondent the driver of the transport bus also denied the allegations made in the claim petition and almost adopted the defendants taken by the corporation. on the basis of the pleadings of the parties the tribunal framed the following issues:(a) whether the petitioner proves that he suffered personal injuries in a motor vehicle accident that occurred on 5.11.1987 at 10.15 p.m. at platform road, near krishna flour mills, due to rash and negligent driving of bts bus no. myf 9568?(b) whether the respondents prove that the accident occurred on account of rash and negligent driving of the autorickshaw bearing no. myf 1471 in which the petitioner is travelling?(c) whether the petitioner is bad for non-joinder of necessary parties?(d) whether the petitioner is entitled to claim compensation?(e) if so, in what sum and payable by whom?4. the petitioner's claim petition which was numbered as mvc no. 736/88 was jointly tried with mvc no. 735/88. the evidence in both the cases was common and recorded on the record of mvc no. 735/88. the oral and documentary evidences were adduced by the claimant, and on behalf of the 1 respondent. the driver of the bus sri kempegowda had been examined and another evidence has been adduced. after examining the evidences on record the tribunal by its order and award dated 1.8.1991 allowed both the claim petitions i.e., claim petition mvc no. 735/88, & 736/88 and awarded the compensation to the tune of rs. 32,000/- in-all in respective claim petition bearing no. 736/88, with reference to mvc no. 735/88 it awarded the compensation to the tune of rs. 24,500/-. the tribunal did not believe the evidences produced by the respondents, and relying on evidence of produced by claimant held that the claimants have been able to prove that the claimant suffered personal injuries in motor vehicle accident and that had occurred on 5.11.1987 at about 10.15 p.m. at platform road, near krishna flour mills due to the rash and negligent driving of bts bus bearing no. mys 9568. it further held that the respondents in the claim petition failed to prove that there was any negligence or rashness in the driving of auto rickshaw bearing no. myf 1471 in which the claimant was travelling. they failed to prove that the accident had occurred on account of rash and negligent driving of auto rickshaw. the tribunal further held that the claim petition was not had for any nonjoinder of any parties. dealing with issue no. 4 with reference to the claim of the claimant in mvc no. 736/88 i.e., the present appellant, the tribunal held that the claimant/appellant had been entitled to general and special damages and awarded the damages as under:(a) rs. 25,000/- for pain and suffering(b) rs. 2,000/- for medical expenses(c) rs. 1,000/- for conveyance and nourishment(d) rs. 4,500/- for loss of leave. rs. 32,500/- totalas the present appeal arises from mvc no. 736/88 there is no need to make reference to mvc no. 735/88 as no appeal has been filed. the tribunal awarded 6% interest on the amount awarded from the date of petition. it further held that respondents 1 & 2 in the claim petition were jointly and severally liable to pay the compensation with costs together with interest awarded from the date of petition till the date of realisation in both the cases.5. having felt dissatisfied with the compensation awarded the claimant has come-up in appeal with the grievances that the compensation awarded is too meagre and insufficient and has challenged the quantum of award. i have heard sri n. kumar-counsel for the appellant and sri h.b. narayan - counsel for 1st respondent. before i proceed to refer to the arguments it will be proper to mention that as the material evidence has been recorded in the connected case mvc no. 735/88 the original record of that case had been summoned and the material evidences has been placed before me by the learned counsel for the parties.6. learned counsel for the appellant sri n. kumar, submitted that while assessing the awarding the damages under the head general damages the tribunal has not considered the material aspect of ex.p.5 aswell as the material aspect of statement of p.w.1. he invited my attention to ex. p. 10 and submitted that in total there have been 5 fractures as-well appear from ex.p.10. he further submitted that this exhibition further discloses that the claimant had to be operated twice in course of his treatment. sri kumar further submitted that ex.p.10 discloses that the nasal bone has also fractured which may result in adversely affecting the appearance of the face of the claimant. sri kumar invited my attention to the statement of p.w.1 as well as the effect that a steel rod was placed in the left thigh of p.w.1 in course of treatment and it has to be removed in times to come and therefore another operation would be required for removing that steel rod from the thigh. so the claimant will have to incur of a fresh further expenditure with relation to that operation and the causes for that will be nothing but the injury that has been caused on account of the accident. sri kumar further submitted that lastly fractures in jaw and other parts of the face and in the nostril bone even after the treatment the result is that petitioner's appearance or petitioner's facial appearance is detericrated. it had damaged the petitioner's physical appearance. these damages have adversely affected the prospects of petitioner's life particularly the matrimonial prospects. learned counsel submitted that claimant had been aged about 24 years at the time of the occurrence in which he was injured. he has been a bachelor and has not been married and he is yet unmarried, and in the marriage market the social or matrimonial value has reduced not in the sense of dowry but in the sense of chances of being married at a proper time. so petitioner has been subjected to this lose. learned counsel submitted that this aspect of the matter had not been taken into consideration by the tribunal while awarding the compensation under the head general damages. apart from pain and suffering this aspect had also be given due consideration. learned counsel submitted that court had not taken into consideration that claimant/appellant had been operated twice and therefore claimant had to incur more expenditure and should have been awarded more compensation with reference to medical expenses. the tribunal has not taken into consideration that rod had been placed in the left thigh and the steel rod had to be removed and that would require another operation. he submitted that in this view of the matter awarding rs. 2,000/- as medical expenses is insufficient and too low. learned counsel submitted that claim made by the claimant for a sum of rs. 15,000/- towards medical expenses has not been excessive or high. this court may allow atleast sum towards the medical expenses or such other sum for medical expenses be enhanced as this court deems fit and proper. learned counsel further submitted that the claimant had to remain in hospital for about 31/2 months when he was in the hospital attendant had to be present. apart from that he had to be taken on conveyance and proper nourishment had to be provided to him in the form of fruit juices or other juices including non-vegetarian juices i.e., soups and so award of rs. 1,000/- as compensation towards charges of conveyance and nourishment has also been insufficient and too law. it requires to be enhanced. learned counsel lastly contended that the rate of interest on the amount payable ought to have been fixed at 9% per annum and the rate 11 at 6% is also insufficient and was not keeping with the pace of interest then prevalent with reference to fixed deposits. learned counsel submitted that even the trial court had mentioned that injuries sustained had to heal-up within not less than 3 months. special damages with reference to medical treatment and conveyance, nourishment and attendant should be enhanced.6. on behalf of the opposite parties, the contentions raised by the learned counsel for the appellant have been hotly contested by sri h.b. narayan - counsel for 1st respondent. he submitted that the compensation which has been awarded under the head of general damages for pain and suffering to the tune of rs. 25,000/-cannot be said to be insufficient or too low. he submitted that it is a justified one. learned counsel submitted that compensation awarded towards medical expenses aswell as towards the charges for attendant, conveyance and nourishment may be enhanced but general damages does not require to be enhanced. learned counsel further submitted that there is no doubt that the rate of interest of the bank on fixed deposits may now be 10 to 12% but at the that time it was 6% had been justifiably allowed.7. i have applied my mind to the contentions made by the learned counsel for the parties. i had perused ex.p.10 which relates to the claimant. the physical examination report of the victoria hospital with reference to the injured i.e., the claimant ex.p.10 discloses that the claimant suffered fracture of shaft femur (left) vide the case-sheet dated 16.1.1.1987. ex.3 further discloses that x-ray of nostril bone is fractured of nostril basis (left). it also reveals fracture of right maxilla as well as fracture of mandible and the case was referred for opinion. ex.p.10 further reveals that there has been fracture of infracstral reem and zygomatic arch. ex.p.10 further reveals that twice operation was done one on 17.11.1987 for open reduction and internal fixation of fractures of shaft femur as per case sheet of victoria hospital dated 17.11.1987 and thereafter the second operation was done on 27.11.1987. this appears from perusal of internal page 18-19 of ex.p.10. the second operation relate to zygomatic arch. operative procedure indicates that some was placed before the fractured fragment. thus ex.p.10 perse reveals that the petitioner had been subjected to operation twice and he has got 5 fractures which were treated later on apart from others. it has come in evidence that it had taken him to be indoor patient for more than one month and thereafter also he had to take treatment for about 31/2 months. these injuries are particularly on the facial art and the fracture of nose basement definitely can be said to have affected adversely the facial portion of the claimant. the claimant at the time of the occurrence or accident has been aged only 24 years. he had been a bachelor and had not been married. even till now he has not been married as pointed-out by the learned counsel for the appellant. the physical appearance must have diminished and adversely affected and it would also affect his future course of entering the marital life, it may be delayed more and this aspect had to be given consideration in addition to the injuries that claimant/appellant had suffered. looking to the injuries sustained and the future life of the claimant, the pain and suffering to which he has been subjected for 3 1/2 months, it has been brought to my notice that p.w.1 has stated that he is unable to sit on the floor and run because of the thigh. looking to the totality of the circumstance it appears to me that the compensation which has been awarded to the tune of rs. 25,000/- is insufficient. before i proceed further it will be proper to make reference to the following observations of their lordships of the supreme court in the case of r.d. hattangadi v. pest control (india) private limited : [1995]1scr75 . their lordships observed:'it is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. no amount of compensation can restore the physical frame of the appellant. that is why is it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury 'so far as money can compensate' because it is impossible to equate the money with the human sufferings or personal deprivations. money cannot renew a broken and shattered physical frame.'their lordships further observed that :'in its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical considerations, some amount of sympathy linked with the nature of the disability caused. but all the aforesaid elements have to be viewed with objective standards.'their lordships also observed in paragraph 17 as under:'when compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered. the effect thereof on his future life. the amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.'8. in the present case, the injured has been a young man of 24 years and other circumstances have already been mentioned, the injuries i have referred to which appears from ex.p.10 and from the statement of p.w.1 apart from this that have been mentioned by the trial court well. thus looking to the entire set of circumstances, the future deficiency in life, the delayed prospects of marriage or other obsequies on account of face being adversely affected by the nostril bone have been fractured and the fact that the court has not taken into consideration this aspect while assessing general damages. i think the proper course would be to enhance the amount of general damages awarded to the petitioner for pain, suffering, future loss of amenities and delayed prospects of marriage etc. keeping the age of young man it would be proper to enhance the compensation under the head general damages to the tune of rs. 45,000/- wherein general damages had been awarded as rs. 25,000/-. it is hereby held that the claimant/appellant would be entitled to a sum of rs. 45,000/- as general damages for pain, suffering and delay of matrimonial prospects aswell as the injuries suffered. as regards the medical expenses the evidences disclose that petitioner had to undergo operations twice. he has also to undergo another operation to get the steel rod removed which had been placed in his left thigh. he had been as an inpatient for about 5 weeks in the hospital and thereafter he continued medical treatment. it would be just and proper that petitioner be awarded a sum of rs. 10,000/- in total for medical expenses which is incurred and which he has to incur in future instead of rs. 2,000/-. a sum of rs. 1,000/- is awarded towards nourishment and conveyance but nothing has been taken into consideration with regard to attendants nor has anything been awarded. it would be proper to held that claimant is entitled to a sum of rs. 1,000/- towards the expenses that he had to meet in fulfilling his requirements for attendants conveyance, nourishment etc. a sum of rs. 4,500/- awarded for loss of leave by the tribunal to the claimant as awarded by the trial court i.e. tribunal remains unchanged. the rate of interest has been awarded by tribunal at 6% p.a. the interest should have been awarded 9% p.a. in every case and so it is held that the claimant/appellant would be entitled to the interest @ 9% p.a. but only in respect of unpaid or under posited amounts. thus the appeal is allowed partly and ordered that the claimant/appellant are entitled to the compensation as under:(a) general damages for pain, suffering, injury and the future loss including prospects of marriage being delayed or adversely affected rs. 45,000/-.(b) rs. 10,000/- as compensation for medical expenses incurred in future.(c) rs. 3,000/- as compensation for conveyance, nourishment and attendants.(d) rs. 4,500/- as awarded by the tribunal towards loss of leave.9. thus the claimant/appellant would be entitled to a total sum of rs. 62,500/- as compensation alongwith costs and interests @ 9% p.a. from the date of petition till the date of realisation but enhanced interest @ 9% will be available only in respect of unpaid amount or compensation. respondents 1 & 2 shall be jointly and severally liable to pay the amount awarded as well as the costs and interest as referred to above and the award is modified to that extent with reference to mvc claim no. 736/88. the appeal is thus partly allowed with costs made easy.