Bangalore District Court
Shankar S.M vs Prasad Ballal on 10 June, 2024
KABC020016312021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH_25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 10TH DAY OF JUNE 2024
ECA No.6/2021
PETITIONER/S: Smt. Shankar S.M.
S/o Masthigowda,
Aged about 26 years,
R/at: Siddapura Village,
Yadiyur Hobli, Kunigal Taluk,
Tumkur District.
(By Sri.Dayananda K.H.,
Advocate.)
V/S
RESPONDENT/S 1.Prasad Ballal
S/o. Late Sahodh Ballal,
M/s Suguna Tourist,
No.257, A/1, Hosur Main Road,
Near NH Hospital,
Bommasandra Industrial Area,
Bangalore - 560 099.
(Exparte)
2 ECA No.6/2021
SCCH-25
2. The Orental Ins. Co. Ltd.,
#39, Residency Road,
1st Cross, Shanthala Nagar,
Bangaore - 560 001.
Policy : 472794/31/2019/25
Valid from 07.04.2018 upto
06.04.2019.
(By S.Seethalakshmi, Advocate.)
JUDGMENT
This is a Petition filed by the Petitioner under Section 22 of Employees Compensation Act, 1923 seeking Compensation for the injuries sustained by him in an accident arising out of and in the course of employment under the Respondent No.1.
2. The case of the Petitioner in brief is that, He was working as a Driver in Sugama Bus bearing Reg.No.KA51C1018 belonging to the Respondent No.1 on a monthly salary of Rs.20,000/ with daily Bata of Rs.200/. On 29.12.2018 at about 02.30am, the Petitioner met with an accident near Allappana Gudde, Kunigal Taluk when he hit a parked Lorry on the left side of NH75. He 3 ECA No.6/2021 SCCH-25 has suffered grievous injuries all over body. After the accident he was shifted to CHC Kunigal, after initial treatment he was shifted to Sparsha Hospital, Bangalore and admitted for one day, treated conservatively. Thereafter he was shifted to Sanjay Gandhi Hospital, admitted as an inpatient for more than 21 days and took conservative treatment, external fixation was done, after removal of external fixation he was discharged with advice to take physiotherapy. So far he has spent Rs.4,00,000/ towards medical and other expenses. Due to accidental injuries, he is unable to continue his work and so he has suffered permanent disability.
3. The Kunigal Police have registered the case in Cr.No.458/2018 u/Sec.279, 337 & 338 of IPC. The 1 st respondent being the owner and the 2nd respondent being the insurer of the Bus are jointly and severally liable to pay compensation to the petitioner. Hence, this petition. 4 ECA No.6/2021
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4. In spite of due service of summons, the Respondent No.1 did not appear before this court and hence placed exparte. In response to summons issued by this court, the Respondent No.2 has appeared and filed written statement.
5. The objections of the Respondent No.2:
It has contended that there is no relationship of employer and employee between the petitioner and the Respondent No.1. But it has admitted the issuance of policy in favour of the private bus i.e., for the respondent No.1. It has also contended that the driver of the bus did not have valid and effective DL as on the date of accident. Further contends that there is contributory negligence on the part of the Lorry bearing Reg.No.KA529736 which was parked on the Road. The Respondent No.2 has further denied the entire averments of the petition including age, income, avocation and other details of the Petitioner and sought for dismissal of the petition. 5 ECA No.6/2021
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6. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioner proves that, he was an employee under the Respondent No.1 as on the date of alleged accident?
2. Whether the Petitioner proves that, he has sustained injuries in the accident while driving the Bus bearing No.KA51C1018 entrusted by the respondent No.1 during the course of and arising out of employment under the respondent No.1?
3. Whether the Petitioner further proves that, due to the negligence on the part of Lorry bearing Reg.No.KA529736 the alleged accident occurred?
4. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
5. What Order or Award?
7. In order to prove his case, the Petitioner has examined himself as PW.1 and got marked 16 documents as per Exs.P.1 to P.15 & 20. Dr.Avinash Parthasarathy - Professor of Orthopaedics at Sanjay Gandhi Institute of Trauma & Orthopedics got examined as PW.2 and got marked 4 documents as per Exs.P.16 to P.19. The Petitioner has also examined Mr.Suresh Shetty - Manager, 6 ECA No.6/2021 SCCH-25 Padmanabha Motors (Sugama Tourists) as PW.3 and got marked 1 document as per Ex.P.21. On the other side the Respondent No.2 examined its official as RW.1 and got marked 3 documents as per Exs.R.1 to R.3.
8. Heard both Counsels.
The counsel for the petitioner has relied upon the following decisions:
1. MFA No.8602/2016 : Alamelibai Vs. Managing Director, KSRTC.
2. Civil Appeal No.5123/2019 : Parminder Singh Vs. New India Assu. Co. Ltd.,
3. Civil Appeal No.2567/2020 : Pappu Deo Yadav Vs. Naresh Kumar & Ors.
4. Civil Appeal No.8510/2022 : Sidram Vs. United India Ins. Co. Ltd.
9. My finding to the above issues are as follows: Issue Nos.1 & 2 : In the affirmative, Issue No.3 : Unanswered, Issue No.4 : In the affirmative, Issue No.5 : As per final order for the Following:
7 ECA No.6/2021
SCCH-25 REASONS
10. Issue Nos.1 & 2:
Since both these issues are interconnected to each other and require common discussion, for the sake of brevity and convenience, both these issues are taken together for consideration. At the outset, it is pertinent to mention that, since the Petitioner has filed the present petition seeking compensation under Employees Compensation Act, it is imperative on the part of the Petitioner to prove that, he is an employee under the First Respondent as defined under the provisions of Employees Compensation Act.
11. In this regard, the Petitioner has examined himself and reiterated the averments of the petition in his evidence. The Petitioner has produced his Diving License as per Ex.P.20. This document clearly discloses that the Petitioner is a Driver by profession. Apart from this, the Petitioner has also produced the documents as per Exs.P.1 to P.7 before this court. Ex.P.2 the complaint is given by 8 ECA No.6/2021 SCCH-25 the passenger of Sugama Bus. Accordingly, the Kunigal Police have registered a case in Crime No.0458/2018 in respect of the accident which took place involving the vehicle bearing No.KA51C1018. The Petitioner has produced the said document as per Ex.P.1. The Petitioner has also produced the charge sheet as per Ex.P.7 which is filed before the Jurisdictional court after detailed investigation. It is evident from the said documents that, the Petitioner while driving the Sugama Bus bearing Reg.No.KA51C1018 from Udupi towards Bangalore as per instructions by the Respondent No.1, when the bus reached near Alappanagudde, bus dashed against one Lorry bearing Reg.NO.KA529736 which was parked on the left side of the NH75 road near Alappanagudde without control over his bus and met with an accident and sustained grievous injuries. In this regard the petitioner has examined Mr.Suresh Shetty - Manager at Ananth Padmanabha Motors (Sugama Toorist) as PW.3 and got marked Ex.P.21/Authorization Letter. During the cross examination of PW.3, he has stated that from past 5 years 9 ECA No.6/2021 SCCH-25 petitioner was working in Sugama Tourist and getting salary of Rs.20,000/ per month and bata of Rs.1,500/ per trip by way of cash. The Very driving of the said vehicle at the time of accident by the Petitioner when the Bus belonged to the Respondent No.1 clearly indicates that, the Petitioner was working as a driver under the Respondent No.1. As the Respondent No.1 is placed exparte, there is no rebuttal evidence in this regard by the Respondent No.1. The Respondent No.2 being the only contesting party has not elicited any contrary admission from the mouth of the PW.1. Therefore, the Petitioner has proved that he was an employee under the Respondent No.1 and met with an accident arising out of and in the course of his employment under the Respondent No.1. Accordingly, issue Nos.1 & 2 are held in Affirmative.
12. Issue No.3:
Since this is an application under Employees Compensation Act, the petitioner cannot claim any compensation from a Third Party. Therefore, the negligence 10 ECA No.6/2021 SCCH-25 of Lorry or the absence of it is immaterial and this issue is left unanswered.
13. Issue No.4:
The counsel for the petitioner has furnished the following decisions:
1. MFA No.8602/2016 : Alamelibai Vs. Managing Director, KSRTC.
Wherein the Hon'ble High Court of Karnataka held that, even in cases where the functional disability cases also future prospectus can be awarded.
2. Civil Appeal No.5123/2019 : Parminder Singh Vs. New India Assu. Co. Ltd., Wherein the Hon'ble Supreme Court of India has given the functional disability given 100% since the petitioner was unable to get employed as a Driver or do any kind of manual labour or engage in any Agricultural operations.
3. Civil Appeal No.2567/2020 : Pappu Deo Yadav Vs. Naresh Kumar & Ors.
Wherein the Hon'ble High Court of Karnataka held that, even in cases of permanent partial disability amount towards future prospectus can be awarded. 11 ECA No.6/2021
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4. Civil Appeal No.8510/2022 : Sidram Vs. United India Ins. Co. Ltd.
Wherein the Hon'ble Supreme Court of India has assessed 45% of the functional disability since the person has suffered degrees of dependence on others and he is completely robbed off personal choice or autonomy.
All these cases are relating to Motor Vehicle Cases and were not filed under the Employees Compensation Act. Therefore, the general principles are applied to the case on hand.
14. The Petitioner has further contended in this petition and evidence that, due to the accident, he has sustained (1) Head injury with right frontal bone depressed fracture with EDH and Pnemocephelas (2) Multiple facial bone fracture and (3) Left leg both bone fracture which are grievous in nature. He has further stated that, after the accident it is not possible for him to continue his avocation, as the accidental injuries have resulted in 12 ECA No.6/2021 SCCH-25 permanent disabilities. Now he is unable to do any manual work involving his right leg, suffering from severe pain of left leg. Because of these disabilities, he is unable to do any avocation of driving or any other work. In this regard, the Petitioner apart from examining himself and reiterating the above averments in his evidence has also examined Dr.Avinash Parthasarathy - Professor of Orthopaedics at Sanjay Gandhi Institute of Trauma & Orthopaedics as PW.2 and got marked Exs.P.16 to P.19 two case sheets, one recent OP slip, disability assessment proforma and one Xray. PW.2 has spoken supporting the version of the Petitioner. PW.2 stated that, on examination he was diagnosed with left both bone leg fracture open type III B at Sanjay Gandhi Hospital, operated for wound debridement and Ex Fix application for left tibia and Rusch nail for left fibula on 01.01.2018 and again underwent Ex Fix removal and CRIF with IM Nail for left tibia on 15.03.2019. PW.2 has specifically spoken in his evidence that the Petitioner suffers the permanent physical impairment at 53% and to the whole body disability at 18%. In the cross examination 13 ECA No.6/2021 SCCH-25 of Pw.2, he has stated that the petitioner will face difficulty to drive the heavy goods vehicle as he sustained left leg fracture. Therefore, this court deems it fit to fix the whole body disability at 18%. While discussing issue Nos.1 to 3, this court has already come to the conclusion that, the Petitioner is an employee under the Respondent No.1 and he has met with an accident arising out of and in the course of his employment.
15. In so far as quantum of compensation is concerned, it is relevant to note that the Petitioner has produced the driving license as per Ex.P.20. This document is public document and it has got presumptive value under law. Therefore, this court has to rely upon the said document. As per the said document, he was born on 11.07.1993. The accident occurred on 29.12.2018. As such, as on the date of accident his age was 25 years. According to the Petitioner he was drawing salary of Rs.20,000/ per month and daily bata of Rs.200/. In support of this he has examined the Manager of Sugama 14 ECA No.6/2021 SCCH-25 Travels as PW.3 and got marked Ex.P.21 authorization letter in which it is stated that the petitioner was working as a driver. PW.3 has stated in his affidavit that the petitioner was getting salary of Rs.20,000/ and Bata of Rs.1,500/. Therefore, this Tribunal deems it fit to fix the monthly income of the petitioner at Rs.20,000/ per month since he is a skilled labor, i.e., a Driver driving a heavy vehicle.
16. The permanent total disablement of 18% suffered by the petitioner due to left leg fracture is covered under PartII of schedule 1 of the ECA. As per section 4 of Employees Compensation Act while deciding the loss of income of an employee the court has to decide the relevant factor based on the age of the Petitioner. As mentioned above the age of the Petitioner as on the date of accident was 25 years. The relevant factor given to his age in schedule 4 of the act is 216.91. As per section 4(1)(b), 60% of his monthly wages has to be multiplied by relevant factor. The 60% of the total salary of the Petitioner is 15 ECA No.6/2021 SCCH-25 Rs.12,000/ (Rs.20,000/ x 60% = Rs.12,000/) and it has to be multiplied by having reference to the percentage of disability and relevant factor. Therefore the Petitioner in total is entitled for a sum of Rs.4,68,526/ (Rs.12,000/ x 216.91 x 18% = Rs.4,68,525.6/) under the head of loss of future earnings/income.
MEDICAL EXPENSES
17. The Petitioner has contended that he has spent more than Rs.4,00,000/ towards transportation, hospitalization, treatment, followup treatment, medical expenses, conveyance and attendant charges. In this regard he has produced 33 medical bills for Rs.1,43,889/ as per Ex.P.15. There is no contrary evidence to these bills from the respondent. Therefore, the Petitioner is entitled for the above said amount under the heads of medical expenses.
As such, the petitioner is entitled to a sum of Rs.6,12,415/ under different heads. If it is rounded off it comes to Rs.6,12,500/.
16 ECA No.6/2021
SCCH-25 LIABILITY
18. It is the case of the petitioner that the respondent No.1 is the RC owner and the respondent No.2 is the insurer. The Petitioner has proved that he was the driver of the said vehicle and met with an accident while driving the said vehicle and sustained grievous injuries. Therefore, under these circumstances, the Respondent No.1 being the employer and owner and the respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. Respondent No.2 being the insurer shall indemnify the respondent No.1. Therefore, the petitioner is entitled to a sum of Rs.6,12,500/ with interest @ 12% pa. Therefore, the petition is liable to be allowed in part. Accordingly Issue No.4 is held in the affirmative.
19. Issue No.4:
For the reasons and discussions made above and finding to the above issues, this court proceed to pass the following: 17 ECA No.6/2021 SCCH-25 ORDER The Petition filed by the Petitioner under Section 22 of Employees Compensation Act 1923 is hereby allowed with costs.
The Petitioner is awarded with compensation of Rs.6,12,500/ (Rupees Six Lakhs Twelve Thousand and Five Hundred only) along with interest @ 12% p.a., from the date of accident i.e., 29.12.2018 till its realisation.
The Respondent Nos.1 & 2 are jointly and severally liable to pay compensation to the petitioner. The respondent No.2 is directed to deposit the compensation amount and interest before this Tribunal within 60 days from the date of this award.
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SCCH-25 On deposit of the compensation amount and interest, entire amount shall be released in the name of the Petitioner by way of e payment with proper identification and due acknowledgment.
The Advocate's fee is fixed at Rs.1000/. Draw Award accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 10th day of June 2024) (PRAKRITI KALYANPUR) XXIII Addl. Small Causes Judge, Bangalore.
ANNEXTURE List of witnesses examined on behalf of the Petitioner:
P.W.1: Mr. Shankar S.M. P.W.2: Dr.Avinash Parthasarathy P.W.3: Mr. Suresh Shetty
List of documents marked on behalf of the Petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of FIS 19 ECA No.6/2021 SCCH-25 Ex.P3 True copy of Spot Mahazar Ex.P4 True copy of Seizure mahazar Ex.P5 True copy of Wound Certificate Ex.P6 True copy of MVA report Ex.P7 True copy of Charge sheet Ex.P8 Notarized copy of Aadhar Card of petitoner Ex.P9 Notarized copy of PAN Card of petitioner Ex.P10 Discharge summary of Sparsh Hospital (2 pages) Ex.P11 Six Medical prescriptions Ex.P12 One outpatient record Ex.P13 Two Xrays Ex.P14 True attested copy of discharge summary issued by Sanjay Gandhi Hospital Ex.P15 33 medical bills for Rs.1,43,889/ Ex.P16 Two case sheets Ex.P17 One recent OP slip Ex.P18 Disability assessment proforma Ex.P19 One Xray Ex.P20 Notarized copy of DL of petitioner Ex.P21 Authorization letter List of witnesses examined on behalf of the Respondents: RW.1 Mr. C.S.Venugopal 20 ECA No.6/2021 SCCH-25 List of documents marked on behalf of the Respondents: Ex.R.1 Authorization letter Ex.R.2 True copy of Insurance policy Ex.R.3 Notice to Respondent No.1 (PRAKRITI KALYANPUR) XXIII Addl. Small Causes Judge, Bangalore.