Bangalore District Court
J. Suma vs Shivalakkaiah on 1 June, 2024
KABC020233562019
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 1st DAY OF JUNE - 2024
PRESENT: Sri. Aalok. A.N
B.B.A. LL.B,
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC.No.5552/2019 C/w MVC.No.5550/2019 & 5551/2019
Petitioner Sri. Nagesha K.H,
(in MVC.5552/2019) : S/o Huchegowda,
Aged about 34 years,
Residing at No.303,
5th cross, Sarabandepalya,
Banashankari 2nd Stage,
Bengaluru - 560 070.
Petitioner Smt. J. Suma,
(in MVC.5550/2019) : W/o Nagesha K.H,
Aged about 26 years,
Residing at No.303,
5th cross, Sarabandepalya,
Banashankari 2nd Stage,
Bengaluru - 560 070.
Petitioner Smt. Shivamma,
(in MVC.5551/2019) : W/o Huchegowda,
Aged about 50 years,
SCCH-23 2 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
Residing at No.303,
5th cross, Sarabandepalya,
Banashankari 2nd Stage,
Bengaluru - 560 070.
(By Advocate: Sri.S.D. Beevaingappa )
-Versus-
Respondents 1) Shivalakkaiah,
(Common in all S/o Shivanna,
petitions) : R/at Vibhuthikere village,
Anjanapura Post, Kailancha Hobli,
Ramanagar Taluk & District,
Pin- 571 511.
(RC owner of Swift Dzire Car bearing Reg.
No.KA-42-A-6277)
(By Advocate: Sri. Shivappa S. )
2) HDFC ERGO General Insurance Co.
Ltd., No.25/1, 2nd Floor, Building No.2,
Shankaranarayana Building,
M.G. Road, Bengaluru - 560 001.
Policy No.2314202504911400000
valid from 14-11-2018 to 13-11-2019
(By Advocate: Sri. Madhukiran )
COMMON JUDGMENT
These petitions have filed under Section 166 of M.V Act
seeking compensation for the injuries sustained in a road traffic
accident. As all the three petitions were arising out of the same
accident, they were clubbed together for recording of common
evidence and judgment.
SCCH-23 3 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioners that, on 06.05.2019 at
about 8.30 a.m, the petitioner (in MVC.5552/2019) his wife
(who is the petitioner in MVC.5550/2019) and his mother (who
is the petitioner in MVC.5552/2019) were going in Swift Dzire
car bearing Reg.No.KA-42-A-6277 from Dharmasthala towards
Kukke Subramanya. It is further urged that while they
proceeding when they reached at Moodubylu, Kaikradi village,
Puthur Taluk, at that time the car driver drove the same in rash
and negligent manner so as to endanger the human life and
dashed against the opposite coming Celerio Car bearing Reg.
No.KA-21-P-6987 due to which all the petitioners have
sustained injury. It is further urged that, they were shifted to
Puttur Government Hospital and then to Sri Krishina
Sevashrama Hospital, Bengaluru wherein they were treated as
inpatient they were discharged with an advised to take follow-
up treatment. It is specifically urged that, the petitioners have
spent huge amount for their treatment.
3. It is urged by the petitioner in MVC.5552/2019 that at
the time of accident the petitioner was working as a Cab Driver
and earning Rs.25,000/- p.m. and as a result of injuries
sustained in the accident there is difficulty to continue his
avocation and also unable to do his day-to-day work.
SCCH-23 4 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
4. It is urged by the petitioner in MVC.5550/2019 that at
the time of accident the petitioner was working as Tailor and
earning Rs.15,000/- p.m. and as a result of injuries sustained
in the accident they are difficulty to continue her avocation and
also unable to do her day-to-day work.
5. It is urged by the petitioner in MVC.5551/2019 that at
the time of accident the petitioner was working as a House Maid
and earning Rs.10,000/- p.m. and as a result of injuries
sustained in the accident she is facing difficulty to continue her
avocation and also unable to do her day-to-day work. It is
further urged that, the accident happened because of rash and
negligent driving of the driver of the Swift Dzire Car. The
respondent No.1 & 2 being the owner and insurer of Swift
Dezire Car bearing Reg.No.KA-42-A-6277 and they are jointly
and severally liable to pay compensation, as such prayed to
grant a compensation amount. Hence prayed to allow the
petitions.
6. After service of notice respondent No.1 though appeared
before the court through his counsel, but he did not choose to
file any written statement. Hence, written statement of
Respondent No.1 is taken as not filed.
7. After service of notice, respondent No.2 spurred in rush
to the Court by filing written statement rather objections to the
main petition contending that the petitions itself is not
maintainable either law or on facts. The respondent No.2
SCCH-23 5 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
admitting the issuance of insurance policy in respect of
Passenger Car bearing Reg.No.KA-42-A-6277. However the
liability if any is pleaded to be subject to the terms & conditions
of the policy. Non-compliance of sections 147, 149(2), 134(c),
158(6) and 170 of MV Act is pleaded. This respondent
specifically and empathically denied the occurrence, mode and
manner of accident and also involvement of the vehicle in the
accident. Negligence on the part of the driver of its insured car
is denied by this respondent. It is further submitted that the
accident had happened because of the rash and negligent act of
driver of Car bearing No.KA-21-P-6987. Further it is urged that
without proper investigation, the police have filed chargesheet
against the insured car. Without prejudice to the said
contention it is averred that the driver of the insured Car did
not possess valid & effective DL as on the date of accident. On
account of willful breach of the terms & conditions of the policy
by the insured, the insurance company is not liable to
indemnify him. Further denied all the allegations made in the
petitions. Hence prayed to dismiss the petitions.
8. On the basis of above pleadings the following issues
were framed in both the cases :
ISSUES IN ALL THE PETITIONS
1) Whether the petitioner proves that on 06.05.2019 at
about 8.30 a.m while the petitioner and his/her
family were proceeding as a inmate in a Swift Dezire
car bearing reg.No.KA-42-A-6277 and the same was
driven by its driver and when he/she reached near
SCCH-23 6 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
Moodubailu, Kowkrady village on Kukke
Subramanya - Dharmasthala road, Puttur Taluk,
Dakshina Kannada, at that time, the driver of the
said Swift Dzire car drove the same in a rash and
negligent manner and dashed against the opposite
coming another car bearing reg.No.KA-21-P-6987.
Due to which the petitioner sustained grievous
injury?
2) Whether the petitioner is entitled for compensation
as prayed for? If so, at what rate and from whom?
3) What order or award?
9. The petitioner in MVC.5552/2019 examined himself as
PW.1. Ex's.P1 to 12 were marked on his behalf. The petitioner
in MVC.5550/2019 got examined herself as PW.2 and got
marked Ex.P.13 to 17 documents. The petitioner in
MVC.5551/2019 got examined herself as PW.3 and got marked
Ex.P.18 to 21 documents. Added more the Medical Record
Technician at Sri Krishna Seva Ashrama Hospital is examined
in all the petitions as PW.4 to PW.6 and through him Ex.P.22 to
27 were got marked and doctor who was assessed the disability
petitioners in MVC No.5552/2019 & MVC No. 5550/2019 is
examined as PW.7 & 8 respectively and through him Ex.P.28 to
33 were marked.
10. Heard erudite counsel for the petitioners and
respondents counsel on merits. Perused the entire materials
placed on record.
SCCH-23 7 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
11. This tribunal answers to the above issues in
MVC.5552/2019, MVC.5550/2019 & MVC.5551/2019 are as
follows :-
Issue No.1 : In the Affirmative
in all the petitions
Issue No.2 : Partly in the
in all the petitions Affirmative
Issue No.3 : As per final order for
in all the petitions the following :
REASONS
12. ISSUE NO.1 (in all the petitions): The petitioners in
MVC.5552/2019, MVC. 5550/2019 & MVC.5551/2019 have
knocked the doors of justice with a relief to grant a
compensation for the injuries sustained by them in RTA. All the
petitions arising out of the same accident and as such the
factum of negligence and involvement of the vehicle is taken for
common discussion in order to avoid the repetition of facts and
consideration.
13. It is the case of the petitioners that, on 06.05.2019 at
about 8.30 a.m, the petitioner (in MVC.5552/2019) his wife
(who is the petitioner in MVC.5550/2019) and his mother (who
is the petitioner in MVC.5552/2019) were going in Swift Dzire
car bearing Reg.No.KA-42-A-6277 from Dharmasthala towards
Kukke Subramanya. It is further urged that while they
SCCH-23 8 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
proceeding when they reached at Moodubylu, Kaikradi village,
Puthur Taluk, at that time the car driver drove the same in rash
and negligent manner so as to endanger the human life and
dashed against the opposite coming Celerio Car bearing Reg.
No.KA-21-P-6987 due to which all the petitioners have
sustained injury. It is further urged that, they were shifted to
Puttur Government Hospital and then to Sri Krishina
Sevashrama Hospital, Bengaluru wherein they were treated as
inpatient they were discharged with an advised to take follow-
up treatment. It is specifically urged that, the petitioners have
spent huge amount for their treatment. It is urged by the
petitioner in MVC.5552/2019 is that at the time of accident the
petitioner was working as a Cab Driver and earning
Rs.25,000/- p.m. and as a result of injuries sustained in the
accident there is difficulty to continue his avocation and also
unable to do his day-to-day work.
14. It is urged by the petitioner in MVC.5550/2019 that at
the time of accident the petitioner was working as Tailor and
earning Rs.15,000/- p.m. and as a result of injuries sustained
in the accident she is facing difficulty to continue her avocation
and also unable to do her day-to-day work.
15. It is urged by the petitioner in MVC.5551/2019 that at
the time of accident the petitioner was House Maid and earning
Rs.10,000/- p.m. and as a result of injuries sustained in the
accident she is facing difficulty to continue her avocation and
SCCH-23 9 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
also unable to do her day-to-day work. It is further urged that,
the accident happened because of rash and negligent driving of
the driver of the Swift Dzire Car. The respondent No.1 & 2 being
the owner and insurer of Swift Dzire Car bearing Reg.No.KA-42-
A-6277 and they are jointly and severally liable to pay
compensation, as such prayed to grant a compensation
amount. Hence prayed to allow the petitions.
16. In support of case of petitioners, the petitioner in
MVC.5552/2019 examined himself as PW.1. Ex's.P1 to 12 were
marked on his behalf. The petitioner in MVC.5550/2019 got
examined herself as PW.2 and got marked Ex.P.13 to 17
documents. The petitioner in MVC.5551/2019 got examined
herself as PW.3 and got marked Ex.P.18 to 21 documents.
Added more the Medical Record Technician at Sri Krishna Seva
Ashrama Hospital is examined in all the petitions as PW.4 to
PW.6 and through him Ex.P.22 to 27 were got marked and
doctor who was assessed the disability petitioners in MVC
No.5552/2019 & MVC No. 5550/2019 is examined as PW.7 & 8
and through him Ex.P.28 to 33 were marked. In order to falsify
the case of the petitioners and to substantiate the defence of the
respondent No.2, its counsel had cross-examined PW1 to 8 at
length.
17. Repelling to the contentions urged by the petitioner,
the respondent No.2 had attacked the case of the petitioner on
various prisms known to fact and law. The first and foremost
SCCH-23 10 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
contention urged by the respondent No.2 is that, there is no
negligence on the part of the driver of the insured vehicle and
the accident happened because of negligence on the part of the
driver of the car bearing No.KA-21-P-6987. Further it is also
contended that driver of the offending vehicle was not having
valid DL and as such the respondent No.2 is not liable to
indemnify respondent No.1 as the policy conditions are violated
further denied all the allegations and prayed to dismiss the
petition. In order to substantiate the above said factum the
respondent No.2 did not choose to lead any evidence. In order to
substantiate the above said fact the respondents did not choose
to lead any evidence.
18. It is not in dispute that the offending vehicle is insured
by respondent No.2 insurance company. Further it is also
undisputed fact that the policy was valid on the date of
accident. It is specifically urged by the petitioner that, the
accident caused because of negligence on the part of driver of
the insured car. On the other hand the respondent No.2
imputes negligence on the part of driver of the car bearing
No.KA-21-P-6987
19. This issue revolves round the sphere and ambit as to
the alleged rash and negligence on the part of the driver of
offending car. The factum of negligence has to be proved like
any other matter in issue. Before dwelling into analyzing the
factum of alleged negligence it is relevant to have the conceptual
SCCH-23 11 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
aspects pertaining to factum of negligence. There are four basic
elements that a person has to fulfill in order to do a negligent
act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on
the part of the defendant. Here it is important to understand whether
the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must
prove that the defendant has breached the legal duty imposed on
him/her. It talks about the breach of duty on the part of the defendant
which he/ she is expected to do as he/ she has some legal duty
towards the plaintiff.
The action of causing something: It means that the damage caused to
the plaintiff is due to the act of the defendant. Here the defendant
may do an act which is not expected from him/her or the defendant
may be negligent in not doing an act which was expected from him/
her.
Damages: At last what matters is, there must be some damage/injury
that is caused to the plaintiff and this damages should be the direct
consequence of the defendant's act.
Negligence means a breach of duty caused by omission to do
something which has reasonable man guide by those
consideration which ordinarily regulated conduct of human
affairs would do which a prudent man would not do. In common
prevalence negligence connoted to the want of proper care and
SCCH-23 12 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
the rashness conveys the idea of recklessness or the doing of an
act without due consideration.
20. Reverting back to the factual matrix, the petitioner in
order to prove the factum of negligence has produced Ex.P.3
and Ex.P.4 being spot mahazar and spot sketch. On perusal of
Ex.P.3 and Ex.P.4 being the spot mahazar and spot sketch it
reflects that, the accident had happened on the right side of the
lane of the offending car bearing Reg.No.KA-42-A-6277. Further
on meticulous scrutiny of the above said documents it reflects
that the road is 20 feet in width, the accident had happened
about 12 feet away from the road margin of the left lane to the
offending car. In other words it is clearly emanating from the
contents of the Ex.P.3 and P.4 that the driver of the offending
car had gone extreme right side to his lane and dashed to the
oncoming vehicle. Even the contents of the Ex.P.3 and Ex.P.4 is
fortified by the Ex.P.6 IMV Report discloses that there is no
mechanical defects in both vehicles. In the instant case on hand
there is absolutely nothing placed on record by the respondents
to show that the driver car bearing Reg.No.KA-21-P-6987 was
negligently driving the vehicle. When such being the case he
cannot be trusted attributed any contributory negligence. Even
the chargesheet as per Ex.P.5 is also filed as against the car
driver for the offences punishable u/s 279, 337 & 338 of IPC.
21. It is necessary to reassert that in a claim for
compensation filed under Section 166 of Motor Vehicles Act,
SCCH-23 13 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
1988, the claimant is expected to prove the incident on basis of
principle of preponderance of probabilities and the view taken by this
Court is fortified by the decision rendered by the Hon'ble Supreme
Court in Kusum and others V/s Satbir and others which is reported in
2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of
Bimla Devi and others v. Himachal Road Transport Corporation and
others reported in (2009) 13 SCC 530 has observed that, it is necessary to
be borne in mind that strict proof of an accident caused by a particular bus in
a particular manner may not be possible to be done by the claimants. The
claimants are merely required to establish their case on the touchstone of
preponderance of probability. The standard of proof beyond reasonable doubt
could not have been applied. Further the Hon'ble High Court of Karnataka
in National Insurance Co. Ltd. Vs. Krishnappa and another reported
in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka
considering the fact that the rider of the offending vehicle was not
examined to prove any contributory negligence on the part of
scooterist held that the accident had occurred due to rash or
negligent driving by the rider of the offending van. Even here in this
case the driver of the insured car is not examined to show that there
was no negligence on his part and even otherwise the IO, as already
observed, has clearly opined that the accident occurred only due to the
fault of the driver of the Car bearing No.KA-42-A-6277 and he was
charge sheeted.
22. Though PW.1 to 3 were cross-examined at length by
the respondent No.2 but they withstood the rigour of cross-
SCCH-23 14 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
examination. This court is aware of the fact the chargesheet
cannot be trusted as a holy document to come to the conclusion
of the negligence. But in the instant case having regard to the
other materials placed on record and other surrounding
circumstances it is it is clearly forthcoming that the negligence
on the part of the driver of car bearing No.KA-42-A-6277.
Consequently this tribunal hold that the accident is proved to
have been caused due to the actionable negligence of the driver
of Swift Dzire Car bearing Reg.No.KA-42-A-6277. With this
observation issue No.1 in MVC No.5552/2019, 5550/2019 and
5551/2019 is answered as 'In the Affirmative'.
23. ISSUE NO.2 IN MVC.5552/2019 : As already held
herein above, the petitioner proved that he has sustained
injuries in RTA which is caused by the vehicle belonging to
respondent No.2 and insured with the respondent no.1. Hence
the petitioner is entitle for compensation. This Court has
already held Issue No.1 in the affirmative which makes it more
than obvious that the petitioner is entitled for compensation.
Needless to state the quantum of compensation which is
awarded has to be proportionate to the nature of the injuries
and the compensation has to be awarded by keeping in mind
the pecuniary damages and non-pecuniary damages suffered by
the injured-claimant. By pecuniary damages this Court is
referring to the actual loss sustained by the petitioner, which
can be determined in terms of money, by taking into account
SCCH-23 15 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
the oral or documentary evidence. Whereas for non-pecuniary
damages this Court is referring to the losses that the claimant
has though suffered, but will not be able to prove for the reason
that it can neither be calculated in terms of the money nor can
it be proved leading documentary evidence. Perhaps the non-
pecuniary damages can be figured out by looking into the facts
of each case by taking into account the nature of injuries and
the aftermath. It is required to be reminded to oneself that
compensation in a case arising out of injury can never be
granted on mathematical precision and invariably a good
amount of guesswork is involved while determining the
compensation in such cases.
24. Perhaps unlike in a fatal case, in a case involving
bodily injury the victim is left to suffer throughout his life; and
hence it becomes the bounden duty of the tribunal to award
compensation to a victim of permanent disability so as to bring
in sustainability and also to ensure that victim is not pushed to
poverty.
25. This issues revolves round the sphere and ambit as to
the quantum of compensation. So far as the age of the
petitioner is concerned, he has not produced any documents to
show his age. Hence the age of the petitioner as indicated in the
police and medical records i.e., 36 years is taken into
consideration. No documents have been produced to establish
SCCH-23 16 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
the avocation and income of the petitioner as alleged in his
evidence affidavit.
26. It is specifically urged that the Petitioner is a Cab
driver and earning Rs.25,000/- p.m. In order to substantiate
the above said fact absolutely no string of evidence is produced
before this court. When such being the case mere self serving
and self proclaimed statement given by the petitioner without
any string of either documentary or oral evidence cannot be
trusted as to gospel truth. Further it is also admitted during the
course of cross-examination of PW1 that he has not produced
any documents to show the income and avocation. It is trite law
that, when the petitioner has failed to prove the income, the
income of the petitioner has to be taken into consideration as
notional income. The next moot question to be considered is as
to how the notional income has to be considered in the eye of
law.
27. It is relevant to rely on a decision of Hon'ble High
Court of Karnataka rendered on Division Bench in the case of
Ananda v/s Arjun and another in MFA.No.101144/2020 (MV)
dated.05.07.2023. Wherein the Hon'ble High Court of
Karnataka has laid down the following principles in para
No.8(b) are as here under :
"(b) The accident is of the year 2017. The Tribunal
has assessed the income of the deceased at
Rs.7,000/- per month as against the claim of
SCCH-23 17 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
Rs.2,50,000/- per annum. To substantiate the said
claim, the injured claimant has not placed any
material on record, it is for the Courts and
Tribunals to assess the income notionally. The
notional income fixed by the Karnataka State
Legal Services Authority for the accident of the
year 2017 is Rs.10,250/-. In the absence of any
material produced by the claimant to prove his
income, it is appropriate to assess the notional
income of the injured claimant at Rs.10,250/- per
month, and the same is assessed as the monthly
income of the injured claimant"
As such this court is taking the notional income as prescribed
by the Karnataka Legal Service Authority, Bengaluru. Therefore
in view of the above decision, the accident was occurred on
06.05.2019. Therefore, Rs.14,000/- has to be taken into
consideration as monthly income of the petitioner.
28. As per the medical records the petitioner has
sustained the following injuries : Lacerated wound on frontal
region forehead and chin, injury on left eye and left wrist, Left
wrist fracture distal wrist connected with radius bone and left
knee injury abrasion. It is needless to say that the injuries are
grievous in nature. The discharge summary as per Ex.P7 of Sri
Krishna Sevashrama Hospital, Bengaluru indicates that the
petitioner was treated as an inpatient in the said hospital for
the period from 07.05.2019 to 10.05.2019 (4 days in total).
During the course of treatment he had undergone surgeries in
the form of : CRIF + K wire fixation.
SCCH-23 18 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
29. It is the specific case of the petitioner that owing to
the accidental injuries he has become disabled and has thereby
lost his earning capacity. Therefore he got examined Dr.Avinash
Parthasarathy as PW.7 who stated that on clinical examination
conducted by him, he found that petitioner has sustained total
permanent physical disability of 32% to the left upper limb and
11% disability to the whole body. It could be borne out in cross
examination that he has not treated the petitioner and not
taken opinion from treated doctor. Further admitted that the
fractures are united. During the evidence of PW.7 one thing is
clear that the fractures are united and he needs no higher
treatment. However from the careful examination of the medical
records, it is seen that PW.7 has assessed the disability on the
higher side. Be that as it may, the law is well settled that it is
the impact of the physical disability on the particular avocation
of the petitioner which is relevant for the purpose of assessment
of compensation under the head of loss of future income as held
by the Hon'ble Apex Court in (2011) 1 SCC 343 between
Rajkumar V/s. Ajaykumar and another, wherein the Hon'ble
Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the
extent of such permanent disability. This means
that the tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or
temporary;
SCCH-23 19 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
(ii) if the disablement is permanent, whether it
is permanent total disablement or permanent partial
disablement,
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect of
such disablement of the limb on the functioning of
the entire body, that is the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based
on the medical evidence, it has to determine
whether such permanent disability has affected or
will affect his earning capacity.
Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could
still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his
previous activities and functions, but could carry on
some other or lesser scale of activities and functions
SCCH-23 20 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
so that he continues to earn or can continue to earn
his livelihood.
For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred
percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not
result in loss of employment and he may still be
continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning
capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any
need to award any compensation under the head of
`loss of future earnings', if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of amenities as
a consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser
post with lesser emoluments, in which case there
should be a limited award under the head of loss of
future earning capacity, taking note of the reduced
earning capacity.
By applying the said precedent to the present case on hand,
from the petition averments it could be culled out that
petitioner is working as Cab driver. Which means to say it
involves less amount of strained labour. When such is the case
SCCH-23 21 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
with a injuries sustained by the petitioner he cannot do his
work effectively, as such his efficiency in work will decrease and
it indirectly affect his income. Considering the nature of
injuries, line of treatment and on appreciation of the clinical
findings noted by the doctor, the possibility of the fact that the
petitioner may be having economical or functional disability to
the extent of 8%, cannot be ruled out. Therefore, this Tribunal
consider the functional disability of the petitioner at 8%. As
already discussed above the petitioner has proved that the
accident took place due to the actionable negligence of the
driver of the car. Therefore he is entitled for compensation
under the following heads :
30. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD &
CONVEYANCE CHARGES : The period of hospitalization of 4
days is proved. During his stay in the hospital the petitioner
would have incurred expenses towards attendant charges as
some family member of the petitioner would have accompanied
him to the hospital to take him care by leaving their duties.
During the aforesaid period the petitioner might have also spent
a considerable amount towards special diet, transportation and
nutrition. Considering the rate of inflation and rise in the price
index, the same is quantified at Rs.1,500/- per day and a sum
of Rs.6,000/- (1,500 X 4) is awarded under this head.
31. PAIN & SUFFERINGS : On account of the accidental
injuries the petitioner would have had undergone pain and
SCCH-23 22 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
mental agony. The documents discloses that petitioner had
sustained fracture left distal radius and head injury. He
sustained fracture. Thus this Tribunal awards a sum of
Rs.40,000/- under this head.
32. LOSS OF INCOME DURING LAID-UP PERIOD:
Considering the nature of injuries, treatment given and
duration of his stay in the hospital, it is quite natural that
petitioner could not have carried out his avocation for atleast 4
months. Thus by taking into account the notional income of the
petitioner, this Tribunal awards a sum of Rs.56,000/- (14,000 X
4) under this head.
33. MEDICAL EXPENSES : As per the bill marked at
Ex.P10, the petitioner has spent Rs.60,271/- towards medical
expenses. Nothing worthwhile was elicited during the course of
his cross-examination, so as to doubt the genuineness of these
bills. Hence the petitioner is entitled for Rs.60,271/- which is
rounded off to Rs.60,000/- towards medical expenses.
34. LOSS OF FUTURE INCOME DUE TO DISABILITY: As
per Sarla Verma's case, the appropriate multiplier applicable is
'15'. This Tribunal has already assessed the notional income of
the petitioner at Rs.14,000/- p.m. Hence a sum of
Rs.2,01,600/- (Rs.14,000 X 12 X 15 X 8/100) is awarded under
this head.
SCCH-23 23 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
35. LOSS OF FUTURE AMENITIES AND HAPPINESS: The
disability referred above would have necessarily caused physical
deformity with which the petitioner has to live the rest of his
life. Hence a sum of Rs.40,000/- is awarded under this head.
36. The calculation table stands as follows :
1 Attendant charges, extra nutritious food & : 6,000-00
conveyance charges
2 Pain & sufferings : 40,000-00
3 Loss of income during laid-up period : 56,000-00
4 Medical expenses : 60,000-00
5 Loss of future income due to disability : 2,01,600-00
6 Loss of future amenities & happiness : 40,000-00
Total 4,03,600-00
37. ISSUE NO.2 IN MVC.5550/2019 : As already held
herein above, the petitioner proved that he has sustained
injuries in RTA which is caused by the vehicle belonging to
respondent No.2 and insured with the respondent no.1. Hence
the petitioner is entitle for compensation. This Court has
already held Issue No.1 in the affirmative which makes it more
than obvious that the petitioner is entitled for compensation.
38. This issues revolves round the sphere and ambit as to
the quantum of compensation. So far as the age of the
petitioner is concerned, she has not produced any documents
to show her age. Hence the age of the petitioner as indicated in
the police and medical records i.e., 26 years is taken into
consideration. No documents have been produced to establish
SCCH-23 24 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
the avocation and income of the petitioner as alleged in her
evidence affidavit.
39. It is specifically urged by the petitioner that she is
tailor by profession and earning Rs.15,000/- per month. In
order to substantiate the above said fact absolutely no string of
evidence is produced before this court. When such being the
case mere self serving and self proclaimed statement given by
the petitioner without any string of either documentary or oral
evidence cannot be trusted as to gospel truth. Further it is also
admitted during the course of cross-examination of PW1 that he
has not produced any documents to show the income and
avocation. It is trite law that, when the petitioner has failed to
prove the income, the income of the petitioner has to be taken
into consideration as notional income. The next moot question
to be considered is as to how the notional income has to be
considered in the eye of law.
40. It is relevant to rely on a decision of Hon'ble High
Court of Karnataka rendered on Division Bench in the case of
Ananda v/s Arjun and another in MFA.No.101144/2020 (MV)
dated.05.07.2023. Wherein the Hon'ble High Court of
Karnataka has laid down the following principles in para
No.8(b) are as here under :
"(b) The accident is of the year 2017. The Tribunal
has assessed the income of the deceased at
Rs.7,000/- per month as against the claim of
SCCH-23 25 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
Rs.2,50,000/- per annum. To substantiate the
said claim, the injured claimant has not placed
any material on record, it is for the Courts and
Tribunals to assess the income notionally. The
notional income fixed by the Karnataka State
Legal Services Authority for the accident of the
year 2017 is Rs.10,250/-. In the absence of any
material produced by the claimant to prove his
income, it is appropriate to assess the notional
income of the injured claimant at Rs.10,250/- per
month, and the same is assessed as the monthly
income of the injured claimant"
As such this court is taking the notional income as prescribed
by the Karnataka Legal Service Authority, Bengaluru. Therefore
in view of the above decision, the accident was occurred on
06.05.2019. Therefore, Rs.14,000/- has to be taken into
consideration as monthly income of the petitioner.
41. As per the medical records the petitioner has
sustained the following injuries : Fracture of right lower limb,
fibula and tibia bones It is needless to say that the injuries are
grievous in nature. The discharge summary as per Ex.P13 of Sri
Krishna Sevashrama Hospital, Bengaluru indicates that the
petitioner was treated as an inpatient in the said hospital for
the period from 07.05.2019 to 10.05.2019 (4 days in total).
During the course of treatment she had undergone surgeries in
the form of : closed reduction and IL nailing done SA on
07.05.2019.
42. It is the specific case of the petitioner that owing to the
accidental injuries she has become disabled and has thereby
SCCH-23 26 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
lost her earning capacity. Therefore she got examined
Dr.Avinash Parthasarathy as PW.8 who stated that on clinical
examination conducted by him, he found that petitioner has
sustained total permanent physical disability of 18% to the
whole body and the limb disability to the tune of 47%. It could
be borne in cross examination that he has not treated the
petitioner and not taken opinion from treated doctor. Further
admitted that the fractures are united. During the evidence of
Pw.8 one thing is clear that the fractures are united and he
needs no higher treatment. However from the careful
examination of the medical records, it is seen that PW.7 has
assessed the disability on the higher side. Be that as it may, the
law is well settled that it is the impact of the physical disability
on the particular avocation of the petitioner which is relevant
for the purpose of assessment of compensation under the head
of loss of future income as held by the Hon'ble Apex Court in
(2011) 1 SCC 343 between Rajkumar V/s. Ajaykumar and
another, wherein the Hon'ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the
extent of such permanent disability. This means
that the tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it
is permanent total disablement or permanent partial
disablement,
SCCH-23 27 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect of
such disablement of the limb on the functioning of
the entire body, that is the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based
on the medical evidence, it has to determine
whether such permanent disability has affected or
will affect his earning capacity.
Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent ability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could
still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his
previous activities and functions, but could carry on
some other or lesser scale of activities and functions
so that he continues to earn or can continue to earn
his livelihood.
For example, if the left hand of a claimant is
amputated, the permanent physical or functional
SCCH-23 28 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred
percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not
result in loss of employment and he may still be
continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning
capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical
disability, but far less. In fact, there may not be any
need to award any compensation under the head of
`loss of future earnings', if the claimant continues in
government service, though he may be awarded
compensation under the head of loss of amenities as
a consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser
post with lesser emoluments, in which case there
should be a limited award under the head of loss of
future earning capacity, taking note of the reduced
earning capacity.
By applying the said precedent to the present case on hand,
from the petition averments it could be culled out that
petitioner is working as Tailor. Which means to say it involves
lot of physical work. The medical records discloses that the
petitioner had sustained injuries to her right lower limb. For the
tailor right lower limb is very much necessary to carry out the
work. When such is the case with a injuries sustained by the
SCCH-23 29 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
petitioner she cannot do her work effectively, as such her
efficiency in work will decrease and it indirectly affect her
income. Considering the nature of injuries, line of treatment
and on appreciation of the clinical findings noted by the doctor,
the possibility of the fact that the petitioner may be having
economical or functional disability to the extent of 15%, cannot
be ruled out. Therefore, this Tribunal consider the functional
disability of the petitioner at 15%. As already discussed above
the petitioner has proved that the accident took place due to the
actionable negligence of the driver of the car. Therefore she is
entitled for compensation under the following heads :
43. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD &
CONVEYANCE CHARGES : The period of hospitalization of 4
days is proved. During her stay in the hospital the petitioner
would have incurred expenses towards attendant charges as
some family member of the petitioner would have accompanied
him to the hospital to take her care by leaving their duties.
During the aforesaid period the petitioner might have also spent
a considerable amount towards special diet, transportation and
nutrition. Considering the rate of inflation and rise in the price
index, the same is quantified at Rs.1,500/- per day and a sum
of Rs.6,000/- (1,500 X 4) is awarded under this head.
44. PAIN & SUFFERINGS : On account of the accidental
injuries the petitioner would have had undergone pain and
mental agony. The documents discloses that petitioner had
SCCH-23 30 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
sustained fracture of both bones right leg. She sustained
fracture. Thus this Tribunal awards a sum of Rs.60,000/-
under this head.
45. LOSS OF INCOME DURING LAID-UP PERIOD:
Considering the nature of injuries, treatment given and
duration of her stay in the hospital, it is quite natural that
petitioner could not have carried out her avocation for atleast 4
months. Thus by taking into account the notional income of the
petitioner, this Tribunal awards a sum of Rs.56,000/- (14,000 X
4) under this head.
46. MEDICAL EXPENSES : As per the bill marked at
Ex.P16, the petitioner has spent Rs.79,827/- towards medical
expenses. Nothing worthwhile was elicited during the course of
her cross-examination, so as to doubt the genuineness of these
bills. Hence the petitioner is entitled for Rs.79,827/- which is
rounded off to Rs.80,000/- towards medical expenses.
47. LOSS OF FUTURE INCOME DUE TO DISABILITY: As
per Sarla Verma's case, the appropriate multiplier applicable is
'17'. This Tribunal has already assessed the notional income of
the petitioner at Rs.14,000/- p.m. Hence a sum of
Rs.4,28,400/- (Rs.14,000 X 12 X 17 X 15/100) is awarded
under this head.
48. LOSS OF FUTURE AMENITIES AND HAPPINESS: The
disability referred above would have necessarily caused physical
SCCH-23 31 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
deformity with which the petitioner has to live the rest of his
life. Hence a sum of Rs.60,000/- is awarded under this head.
49. The calculation table stands as follows :
1 Attendant charges, extra nutritious food & : 6,000-00
conveyance charges
2 Pain & sufferings : 60,000-00
3 Loss of income during laid-up period : 56,000-00
4 Medical expenses : 80,000-00
5 Loss of future income due to disability : 4,28,400-00
6 Loss of future amenities & happiness : 60,000-00
Total 6,90,400-00
50. ISSUE NO.2 in MVC No.5551/2019: As per the
medical records the petitioner has sustained cut lacerated
wound on the chin. It is needless to say that the injury is simple
in nature. Further the petitioner has not produced any
materials to show that she had taken treatment as an inpatient.
51. It is the case of the petitioner that she has become
disabled due to the accidental injuries and has lost her earning
capacity. However the petitioner has neither proved her
avocation nor her earning capacity. So also she has not
examined the doctor or produced the disability certificate to
substantiate that she has become permanently disabled. Under
such circumstances it cannot be accepted that she has suffered
permanent disability. Therefore she is not entitled for
compensation under the head 'Loss of future income due to
disability'. In this case the petitioner has produced medical bills
at Ex.P21, the petitioner has spent Rs.3,622/- towards medical
SCCH-23 32 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
expenses. Nothing worthwhile was elicited during the course of
her cross-examination, so as to doubt the genuineness of these
bills. All these bills have been examined with care and are
found to be correct. Anyhow, because the petitioner has not
proved that she has any kind of disability, compensation cannot
be awarded under conventional heads.
52. Further, the petitioner has produced the Discharge
Summary. On perusal of said discharge summary at Ex.P18 the
petitioner had taken treatment as inpatient from 07.05.2019 to
09.05.2019. The period of hospitalization of 3 days is proved.
During her stay in the hospital the petitioner would have
incurred expenses towards attendant charges as some family
member of the petitioner would have accompanied her to the
hospital to take her care by leaving their duties. During the
aforesaid period the petitioner might have also spent a
considerable amount towards special diet, transportation and
nutrition. Having regard to the nature of injuries sustained by
the petitioner, the line of treatment and the medical expenses
incurred by her, this tribunal is of the view that ends of justice
would be met if the petitioner is awarded global compensation
of Rs.30,000/-.
53. REGARDING INTEREST & LIABILITY: Having regard to
the nature of the claim and current bank rate of interest, this
Tribunal is of the view that if interest at the rate of 6% per
annum is awarded it would meet the ends of justice.
SCCH-23 33 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
54. There is no dispute with regard to the issuance of
insurance policy and its validity as on the date of accident.
However, the order sheet dated 24.01.2023 discloses that
interest was waived off till commencing of evidence. Hence for
this idle period, no interest should accrue to the claimants. To
put it differently they should not be permitted to derive benefit
from their own wrong. Allowing interest even for the periods
covered by the adjournment granted at the instance of the
claimants, virtually amounts to unjust enrichment of the
claimant at the cost of other stake holders, namely owners of
the offending vehicle or the Insurance companies.
55. In this view of the matter, relying upon the ratio laid
down by our Hon'ble High Court in MFA No.4427/2010 (DD on
12/07/2018), the Insurance Company cannot be saddled with
payment of interest for the period for which there was delay on
the part of the petitioner in proceeding with the petition. Hence
it is ordered that Insurance Company cannot be saddled with
payment of interest for the period for which there is delay on
the part of the petitioners in proceeding with the petition.
Thereby the interest for the period from the date of filing of the
petition till the commencement of evidence by the petitioner is
waived off. Therefore, the respondent No.1 being the owner of
Swift Dezire car bearing Reg.No.KA-42-A-6277 and respondent
No.2 being the insurer thereof are jointly and severally liable to
pay the aforesaid award amount to the petitioners together with
SCCH-23 34 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
interest @ 6% per annum. However the respondent No.2 being
the insurer is primarily liable to satisfy the award amount
together with interest within two months from the date of this
order. Hence this issue is answered as 'Partly in the Affirmative'
in all the petitions.
56. ISSUE NO.3 (IN ALL THE PETITIONS) : In view of my
findings, I proceed to pass the following :
ORDER
The petitions filed under Section 166 of M.V.Act 1988, are hereby partly allowed with costs in the following terms :
The petitioner in MVC No.5552/2019 is entitled for compensation of Rs.4,04,100/- with interest at the rate of 6% p.a. interest is waived off from the date of filing of petition till the commencement of evidence (i.e, from 13.09.2019 to 06.03.2023). Further he is entitled interest from the date of evidence till its realization.
Out of the above said compensation amount awarded to the petitioner in MVC No.5552/2019, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E- payment on proper identification and due verification and further 20% of the award amount shall be kept SCCH-23 35 MVC.5552/2019 C/w MVC.5550/2019 & MVC 5551/2019 in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
The petitioner in MVC No.5550/2019 is entitled for compensation of Rs.6,90,400/- with interest at the rate of 6% p.a. interest is waived off from the date of filing of petition till the commencement of evidence (i.e, from 13.09.2019 to 06.03.2023). Further she is entitled interest from the date of evidence till its realization.
Out of the above said compensation amount awarded to the petitioner in MVC No.5550/2019, 80% of the award amount with accrued interest shall be paid to her through NEFT/RTGS by way of E- payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
The petitioner in MVC No.5551/2019 is entitled for compensation of Rs.30,000/- with interest at the rate of 6% p.a. interest is waived off from the date of filing of petition till the commencement of evidence (i.e, from 13.09.2019 to 06.03.2023). Further she is entitled interest from the date of evidence till its realization.SCCH-23 36 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019 After deposit of compensation amount the office is directed to release the entire share with interest of the petitioner in MVC.5551/2019 through NEFT/RTGS by way of E-payment on proper identification.
The respondent No.2 is liable to pay and directed to deposit the compensation amount within a period of two months from the date of award.
Advocate fee is fixed at Rs.1,000/- in each case. The original judgment shall be kept in MVC No.5552/2019 and copies thereof shall be maintained in MVC No.5550/2019 & MVC No.5551/2019 for reference.
Draw an award accordingly in all the petitions.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 01st day of June-2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
P.W.1 : Sri. Nagesha K.H.
P.W.2 : Smt. J. Suma
P.W.3 : Smt. Shivamma
SCCH-23 37 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
P.W.4 : Pratek K.
P.W.5 : Pratek K.
P.W.6 : Pratek K.
P.W.7 : Dr. Avinash Parthasarathy
PW.8 : Dr. Avinash Parthasarathy
List of documents got marked for the petitioner/s:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot Mahazar
Ex.P4 Sketch
Ex.P5 Charge Sheet
Ex.P6 IMV Report
Ex.P7 Discharge Summary
Ex.P8 Wound Certificate
Ex.P9 OPD Card
Ex.P10 Medical Bill
Ex.P11 Prescription
Ex.P12 X-ray report
Ex.P13 Discharge Summary
Ex.P14 Wound Certificate
Ex.P15 OPD card
Ex.P16 Medical bill
Ex.P17 Prescriptions
Ex.P18 Discharge Summary
Ex.P19 Wound Certificate
Ex.P20 OPD Card
SCCH-23 38 MVC.5552/2019 C/w MVC.5550/2019
& MVC 5551/2019
Ex.P21 Medical bill with prescription
Ex.P.22 Authorization Letter
Ex.P.23 Inpatient record
Ex.P.24 X-ray sheet
Ex.P.25 Inpatient Record
Ex.P.26 X-ray sheet
Ex.P.27 Inpatient record
Ex.P.28 OP slip
Ex.P.29 Disability Proforma
Ex.P.30 X-ray sheet
Ex.P.31 OP slip
Ex.P.32 Disability proforma
Ex.P.33 X-ray sheet
List of witnesses examined for the respondent/s:
None List of documents marked for the respondent/s: Nil (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.