Bangalore District Court
Tirupathi Srinivas Rao Alias Srinivas ... vs Karthikeyan on 1 March, 2024
M.V.C.No.3895/2021
1 SCCH - 7
KABC020230032021
IN THE COURT OF THE IX ASCJ. SMALL CAUSES AND
ADDL. MACT, BENGALURU, (SCCH-7)
DATED THIS 1st DAY OF MARCH - 2024
BEFORE: SRI.UMESH S. ATNURE,
B.Com., LL.B.(Spl)
IX Addl. Small Causes Judge,
Court of Small Causes,
Member, MACT7, Bengaluru.
M.V.C. No.3895/2021
Sri.Tirupathi Srinivas Rao,
@ Srinivas Rao,
S/o Venkateswarlu,
Aged about 48 years,
R/at No.172,
Rompechanda Mandal,
Santhagudipadu, Guntur
Andhra Pradesh - 522 615.
Petitioner/s
VERSUS
M.V.C.No.3895/2021
2 SCCH - 7
1. Mr. Karthikeyan,
No.76, 1st Main,
Bandappa Garden,
Muthyal Nagar,
Mathikere,
Bangalore - 560 054.
2. Bajaj Allianz General Insurance Company Ltd.,
Golden Height, 4th Floor,
No.1/2, 59th 'C' Cross,
4th 'M' Block, Rajajinagar,
Bengaluru - 560 010.
(Policy No.OG211701180100017516)
Respondent/s
===
Petitioner/s by Sri.Champa.C, Advocate
Respondent No.1 is placed exparte
Respondent No.2 by Sri.Raghavendra Bhat, Advocate
===
Date of filing of petition : 01.09.2021
===
:JUDGMENT:
1. The petitioner filed this petition under Section 166 of Motor Vehicles Act 1989, seeking compensation of Rs.40,00,000/ M.V.C.No.3895/2021 3 SCCH - 7 for the injures sustained by him in the road traffic accident occurred on 06.05.2021.
2. It is the case of the petitioner that, on 06.05.2021 at about 3.30 - 3.31 p.m., he was riding his two wheeler bearing registration No.KA53EE5695 on left side of road by observing traffic rules and regulations from BEL towards Hebbal near Devinagara cross at that time the driver of the Car bearing registration No.KA05MG3322 drove the same from behind his vehicle in high speed, rash and negligent manner and dashed against his motor cycle and due to impact he fell down and sustained grievous injuries. Immediately he was shifted to Bangalore Baptist Hospital wherein he was admitted as an inpatient and undergone surgery. Prior to the accident he was hale and healthy and aged about 48 years and he was working as Civil Contractor and earning Rs.40,000/ per month. Due to the injuries sustained in the accident he became permanently M.V.C.No.3895/2021 4 SCCH - 7 disabled. This accident is took place due to the negligence of the driver of the Car bearing registration No.KA05MG 3322 as such the respondents are jointly and severally liable to pay compensation to him. Hence, he prayed to allow the petition.
3. In response to the notice, the respondent No.1 is placed exparte and the respondent No.2 has appeared through their counsel and filed their written statement.
4. The respondent No.2 insurer denied the entire contentions of the petitioner. Further the respondent No.2 admitted that they have issued the Insurance Policy to the Car bearing registration No.KA05MG3322 and their liability is subjected to terms and conditions of the policy. The respondent No.1 has allowed a person who was not having valid and effective driving licence to drive the same as on the date of the alleged accident, as such the respondent M.V.C.No.3895/2021 5 SCCH - 7 No.1 has violated the terms and conditions of the policy, as such they are not liable to pay any compensation to the petitioner. Hence, on all these grounds, the respondent No.2 has prayed for dismissal of claim petition.
5. On the basis of above pleadings following Issues were framed.
:: I S S U E S ::
(1) Whether petitioner proves that the accident occurred due to rash and negligent act of driving of Car bearing registration No.KA05MG3322 and as a result, he sustained injuries?
(2) Whether the Petitioner proves the age and earnings of the Petitioner as stated in the claim petition?
M.V.C.No.3895/2021 6 SCCH - 7 (3) Whether petitioner is entitled for compensation? If so, how much and from whom?
(4) What order or award?
6. In order to prove the case of petitioner, petitioner got examined himself as PW1 and got marked Ex.P1 to P.17, Medical Record Officer of Bangalore Baptist Hospital got examined as PW.2 and got marked Ex.P.18 to Ex.P.22 and Dr.Subba Rayudu Yarlagadda is examined as PW.3 and got marked Ex.P.23 and Ex.P.24 and closed their side. The respondents are not adduced any evidence.
7. Heard the arguments of both side.
8. My findings to the above referred Issues are as under;
Issue No.1 : In the affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : Partly in the affirmative
Issue No.4 : As per final order,
for the following.......
M.V.C.No.3895/2021
7 SCCH - 7
:REASONS:
9. Issue No.1: The petitioner examined himself as PW.1 and in his examination in chief he deposed as per the contentions taken by him and got marked FIR as per Ex.P 1, Complaint as per Ex.P2, Spot panchanama as per Ex.P3, Spot sketch as per Ex.P4, IMV report as per Ex.P5, wound certificate per Ex.P6 and Charge Sheet as per Ex.P.7. By perusing these documents it is clearly goes to show that this accident was took place due to the negligence on the part of driver Car bearing registration No.KA05MG3322. Further in the cross examination of PW1, he deposed that after 7 days of the accident complaint is lodged and in this accident he has sustained sever injuries and he was taking treatment in ICU and his relatives are taking his care as such complaint is lodged after 7 days of the accident. He denied that they haves filed false complaint against the driver of the Car bearing M.V.C.No.3895/2021 8 SCCH - 7 No.KA05MG3322, only to get compensation. Further he deposed that at the time of accident he was riding motorcycle and he do not know whether his motorcycle was seized by the police or not. He denied that while he was proceeding on the motorcycle due to skid he fell down and sustained injuries. Further he also denied that there is no negligence on the part of the driver of the Car. He denied that as this accident is occurred only due to his negligence, as such he is not entitled for any compensation.
10. From the evidence of PW.1 nothing contrary is brought on record to disbelieve the case of the petitioner. Further by perusing the charge sheet marked as per Ex.P7 it goes to shows that this accident is occurred only due to the negligence of the driver of the Car bearing No.KA05MG 3322. Further to rebut he case of the petitioner, the respondents are not led any oral and documentary evidence. Hence, by perusing the entire oral and documentary M.V.C.No.3895/2021 9 SCCH - 7 evidence adduced by petitioner side, I am of the considered view that this accident is occurred only due to the negligence of the driver of the Car bearing No.KA05MG 3322. Further by perusing the wound certificate marked as per Ex.P.6 it clearly goes to shows that in this accident the petitioner has sustained severe injuries. Hence, I answered the Issue No.1 in the affirmative.
11. Issue No.2: The petitioner contended that as on the date of accident he was aged about 48 years and he was working as Civil Contractor and thereby earning Rs.40,000/ per month. Due to the injuries sustained in the accident he became permanently disabled.
12. In order to prove the age of the petitioner, he relied on the Adhaar card marked as per Ex.P.12, wherein the date of birth of the petitioner is shown as 01.07.1964. This accident was took place on 06.05.2021. Hence, the age of M.V.C.No.3895/2021 10 SCCH - 7 petitioner is considered at 57 years as on the date of accident.
13. So for as income of the petitioner is concern the petitioner contended that prior to the accident he was working as Civil Contractor and thereby earning Rs.40,000 per month. In support of this contention the petitioner has produced his bank statement from 01.04.2021 to 31.03.2022. By perusing the same nowhere it found from Civil Contractor petitioner was getting monthly income of Rs.40,000/ in the absence of acceptable evidence and record to show that income of the petitioner, by considering the notional income of the petitioner is considered as Rs.15,000/ p.m., Hence, I answered the Issue No.2 partly in the affirmative.
14. Issue No.3: The petitioner contended that in the accident he has sustained Moderate head injury, right M.V.C.No.3895/2021 11 SCCH - 7 frontotemporoariental acute subdural hematioma, multiple right frontal and temproral contusions, left side rib ( 2 nd 3rd 4th ) fracture with pneumothorax, left clavicle and scapula fracture and he is permanently disabled. By perusing the discharge summary marked as per Ex.P10 it goes to show that the petitioner has sustained moderate head injury and fracture of left clavicle and scapula. The petitioner has taken treatment in Bangalore Baptist Hospital. Further the petitioner contended that due to the injuries sustained in this accident he is not in a position to hear from his left ear, as such he was taken treatment for left ear in R.R. Speciality Hospital, Guntur, Andhra Pradesh. The petitioner has produced discharge summary of R.R. Speciality Hospital as per Ex.P.11. By perusing the same it goes to show that the petitioner has taken treatment in R.R hospital for left ear.
M.V.C.No.3895/2021 12 SCCH - 7
15. Further the petitioner got examined Dr.Subba Rayudu Yarlagadda as PW3, he deposed that the petitioner was brought to their hospital, complaining of decreased hearing after the petitioner met with an accident at Bengaluru. After the accident the petitioner was treated at Bengaluru and after his examination he found that the petitioner is to be profound deaf, accordingly he performed surgery for left ear by way of Chochlear implantation with financial aid from Chief Ministers relief found, Andhra Pradesh. After the surgery the petitioner is taken regular follow up. He examined the petitioner on 14.08.2023 at the time he found that the petitioner is not responding properly with the aid tuning fork tests are negative, ear appears to be normal. He advised the petitioner for audiological evaluation and as per report it shows that petitioner is not responding to any kind of stimuli without aid, but with aid the petitioner responses are inconsistent and the disability of left ear M.V.C.No.3895/2021 13 SCCH - 7 without aid is 100% and with aid he cannot say clearly because they can only do the subjective tests, when the petitioner is typical situation without aid he cannot hear, but there are no clear guidelines by the State Government or Central Government to assess the disability in this situation. He has produced IP records marked as per Ex.P.23 and his examination report as per Ex.P24. In the crossexamination the PW3, he has deposed that he has given treatment to the petitioner on 16.08.2021 and he has not seen the CT scan report of the petitioner taken first timer after the accident and he has seen all the medical report of the petitioner and he has not seen the scan report dated 04.08.2021. Further he deposed that he do not remember that in the scan report dated 04.08.2021 its stated that for the both ear there is Dysplstic incus on both side. Further he deposed that in the Central Government notification of the year 2018 there is heading hearing M.V.C.No.3895/2021 14 SCCH - 7 impairment under it the disability pertains to the ear is stated. Further he admitted that Cochlear implants is inserted to the petitioner. Further he admitted that as per the Central Government Notification of the year 2018 the ear disability is stated monaural PTA in dB. Further he admitted that as per report of Shravanalaya Speech and Hearing Center with the assistance of Cochlear implant the petitioner can hear up to 18.3dB. Further he deposed that the disability of 1% up to 32 dB as per the Central Government Notification and same is pertains to a normal man, without any implant. Further he admitted that with the aid of Cochlear implant the petitioner can hear from left ear. Further he deposed that when the petitioner is not able to hear without assistance of Cochlear implant, the disability will be 100%. Further he deposed that he cannot say what is extent of disability if the petitioner is hearing with cochlear implants. Further he deposed the that there M.V.C.No.3895/2021 15 SCCH - 7 is audiologist report stating the with the help of the Cochlear implant the petitioner can hear up to 18.3dB. Further he deposed that as per his examination of the petitioner, the petitioner is not having hearing capacity on both ear. When it was suggested to him that whether due to the injuries sustained in this accident the petitioner has lost his hearing capacity, he deposed that when he examined the petitioner, the petitioner is not able to hear from both the ear. Further he deposed that Dysplstic middle ear a cogenital anomaly from birth. Further he deposed that only to help the petitioner he has assessed disability on the higher side and deposing falsely.
16. From the evidence of PW3 it is clear that the petitioner is not having hearing capacity of both ear. By conducting surgery cochlear implant is inserted and with the help of the implant the petitioner is able to hear upto 18.3 dB from the left ear and without assistance of cochlear implant the M.V.C.No.3895/2021 16 SCCH - 7 petitioner is not in position to hear. Further from the evidence of PW3 it goes to show that he has not verified CT scan report dated 04.08.2021. By perusing the CT scan report dated 04.08.2021 of the petitioner under the heading impression it is mentioned that Dysplastic incus on both sides, this report given on 04.08.2021 and this accident was took place on 06.05.2021. It shows that in the CT scan report it is stated that petitioner is having dysplastic incus on the both ear, its shows that the petitioner is not in a position to hear from the both the ear. From the evidence of PW3, it goes to show that after surgery the doctor inserted cochlear implant and with the help of cochlear implant the petitioner is able to hearing from left ear up to 18.3 dB. If the the Cochlear implant is removed the petitioner is not in a position to hear anything.
17. The doctor has assessed disability of 100% to the left ear for not hearing without aid of cochlear implants. As per the M.V.C.No.3895/2021 17 SCCH - 7 Central Government notification the disability of 1% is given up to Monoural PTA in dB 1%. By perusing the Central Government notification it appears that a person is having 70DB hearing loss in speech frequencies in both ear he is called as deaf. In this case the petitioner is having hearing loss up to 18.3 dB and he can hear to the with the aid of implant and without the aid the petitioner is not in a position to hear anything and nothing is stated in the Central Government notification with regard to bifurcation of disability with the aid of any implant and without aid. From the evidence of PW3 it is very much clear that with the aid of cochlear implant the petitioner can hear up to 18.3 dB and without cochlear implant the petitioner is not in a position to hear anything.
18. As occupation of the petitioner is considered as Civil Contractor while doing Civil Contractor work the petitioner has to meet several persons for undertaking Civil work and M.V.C.No.3895/2021 18 SCCH - 7 carried out the Civil work on construction side. If he is not in position to hear any person then he has not capable to discharge his work as Civil Contractor and when he is not able to hear properly he cannot issue any specific direction to the labours. As the petitioner with the help of cochlear implant is able to hear up to 18.3 dB, but without aid of cochlear implant he has not in position to hear anything. Definitely the injuries are causing some inconvenience to the petitioner to discharge his duties as earlier. Hence by considering the age, occupation, nature of work and also relying on the authority reported in (2011) 1 SCC 343 between Rajkumar V/s. Ajay Kumar the functional disability of the petitioner is considered as 20% to the whole body.
19. With regard to the quantum, the age of the petitioner is considered as 57 years and the income is considered at M.V.C.No.3895/2021 19 SCCH - 7 Rs.15,000/ p.m. As per Sarala Varma's Case the multiplier 9 is applicable and functional disability is considered at 20%. On considering the avocation and age of the petitioner, the total loss of future income is calculated as (Rs.15,000/ X 12 X 9 X 20/100) = Rs.3,24,000/. Hence, an amount of Rs.3,24,000/ is awarded to the petitioner under the head loss of future income for the permanent disability suffered by him in the accident.
20. In this accident the petitioner has sustained Moderate head injury, right frontotem poroariental acute subdural hematioma, multiple right frontal and temproral contusions, left side rib ( 2nd 3rd 4th ) fracture with pneumothorax, left clavicle and scapula fracture and undergone surgery which shows that definitely the petitioner has suffered some pain due to the injuries sustained in the accident, hence an amount of Rs.50,000/ is awarded towards pain and sufferings.
M.V.C.No.3895/2021 20 SCCH - 7
21. Further due to the injuries sustained in the accident the petitioner might have taken rest for at least for a period of two months and during this period he might have taken nutritious food and taken assistance of an attendant hence an amount of Rs.40,000/ is awarded under the head of loss of earning during the period of treatment, rest, nourishment and attendant charges. Further the petitioner has produced hospital and Medical Bills as per Ex.P.15 for an amount of Rs.4,66,460/. Hence the petitioner is entitled for compensation of Rs.4,66,460/ under the head of hospital and medical expenses.
22. Due to the injuries sustained in the accident the petitioner has suffered uncomfortable in his day to day life, hence an amount of Rs.25,000/ is awarded towards loss of amenities. Hence, the petitioner is entitled for total compensation under the following heads;
M.V.C.No.3895/2021 21 SCCH - 7 Towards loss of future income Rs. 3,24,000.00 Towards pain and sufferings Rs. 50,000.00 Towards medicine and Rs. 4,66,460.00 hospital bill Towards loss of earning Rs. 40,000.00 during rest period and attendant charges Towards loss of amenities Rs. 25,000.00 Total Rs. 9,05,460.00 Hence the petitioner is entitled for just and reasonable compensation amount of Rs.9,05,460/.
23. While answering the issue No.1 this Tribunal comes to the conclusion that, accident occurred due to the negligence of the driver of Car bearing registration No.KA05MG3322. The petitioner contended that the respondent No.1 is the owner and the respondent No.2 is the insurer of the said vehicle they are jointly ans severally liable to pay compensation to him. The respondent No.2 has admitted that as on the date of the accident the policy issued to the said Car bearing registration No.KA05MG3322 was in force. Nothing worth is brought on record to show that M.V.C.No.3895/2021 22 SCCH - 7 there is violation of terms and conditions of the policy by the owner of the Car bearing registration No.KA05MG 3322. Hence the respondent No.1 being the owner and the respondent No.2 being the insurer of the Car bearing registration No.KA05MG3322. are jointly and severally liable to pay compensation to the petitioner with interest at the rate of 6% p.a from the date of petition. Hence, I answered the issue No.3 in partly affirmative.
24. Issue No.4: For the above stated reasons I proceed to pass the following;
:ORDER:
Claim petition filed by the petitioner U/Sec 166 of M.V. Act is partly allowed with costs of Rs.1,000/.
Petitioner is awarded just and reasonable compensation of Rs.9,05,460/ (Rupees Nine Lakh Five Thousand Four Hundred and Sixty Only) with interest at M.V.C.No.3895/2021 23 SCCH - 7 the rate of 6% p.a. from the date of petition to till the date of depositing of the compensation amount in the court.
The respondent No.2 being insurer of Car bearing registration No.KA05MG 3322 is directed to deposit the awarded compensation amount in the Court within 02 month from the date of this judgment. Draw award accordingly.
:APPORTIONMENT:
On deposit of compensation amount the petitioner shall deposit 40% of the compensation amount in any of the Nationalized Banks as F.D. for a period of 3 years.
After expiry of period of fixed deposit the Bank Authorities are at liberty to release the amount shown in the F.D. to the concerned depositor in accordance with rules and regulations of the bank after proper identification of the depositor.
M.V.C.No.3895/2021 24 SCCH - 7 Remaining 60% amount is to be paid to Injured/Petitioner under Epayment and after verifying the stay order from the Hon'ble Appellate Court.
(Dictated to the Stenographer, typed by him, corrected and then, pronounced by me in the open Court on this, the 1st Day of March 2024).
(Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes, Member MACT, Bengaluru.
: ANNEXURE :
List Of Witnesses Examined For Petitioner/s.
PW1 : Tirupathi Srinivas Rao PW2 : Stella.M PW3 : Dr. Subba Rayudu Yarlagadda
List of exhibited documents marked for Petitioner/s.
Ex.P1 : FIR
Ex.P2 : Complaint
Ex.P3 : Spot Mahazar
Ex.P4 : Spot Sketch
Ex.P5 : IMV Report
M.V.C.No.3895/2021
25 SCCH - 7
Ex.P6 : Wound Certificate
Ex.P7 : Charge Sheet
Ex.P8 : Notice issued under Section 133 of MV Act
Ex.P9 : Reply to Notice
Ex.P10 : Discharge Card
Ex.P11 : Discharge Card
Ex.P12 : Adhar Card
Ex.P13 : Hearing Assessment report Ex.P14 : Medical reports Ex.P15 : Hospital and Medical Bills Ex.P16 : Medical Prescriptions Ex.P17 : Speech processor maintenance expenditure quotation Ex.P18 : Authorization letter Ex.P19 : MLC Register Ex.P20 : Police Intimation Ex.P21 : IP Record Ex.P22 : Xray Film Ex.P23 : IP Record Ex.P24 : Examination reports List Of Witnesses Examined For Respondent/s.
Nil M.V.C.No.3895/2021 26 SCCH - 7 List of exhibited documents marked for Respondent/s.
Nil (Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes, Member MACT, Bengaluru.
Digitally
signed by
UMESH UMESH S
ATNURE
S Date:
ATNURE 2024.03.05
10:49:58
+0530