Bangalore District Court
Sri.R.Gurukrishna vs Sri.B.Kumaraswamy Reddy on 3 March, 2022
SCCH-11 1 MVC.No.2920/2019
KABC020125492019
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS THE 03rd DAY OF MARCH-2022
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
MVC No.2920/2019
PETITIONER:
Sri.R.Gurukrishna,
S/o.Rajagopal,
Aged about 28 years,
R/o.Hancharahalli,
Bengaluru -49.
(By Sri.T.V.Ramesh., Adv.)
//Versus//
RESPONDENTS:
1. Sri.B.Kumaraswamy Reddy,
S/o.Bhaskar Reddy, Major,
R/o.Srinidhi Layout,
Kothanur,
Bengaluru - 560 062.
SCCH-11 2 MVC.No.2920/2019
2. The Cholamandalam MS General Insurance
Co., Ltd., Unit No.4, 9th Floor,
Golden Heights Complex,
59th 'C' Cross,
Industrial Suburb, Rajajinagar
4th M Block, Bengaluru - 10.
(Resp.1 - Exparte)
(Resp.2 By Sri.K.Suresh, Adv.)
JUDGMENT
This petition is filed by the petitioner U/s.166 of Motor Vehicle Act, claiming compensation of Rs.20,00,000/- along with interest from the date of petition till its realization for injuries sustained by the petitioner.
2. The case of the petitioner in brief is that on 12.04.2019 at about 4.15 p.m., when petitioner was going towards Lagumenahalli from his village Hancharahalli by riding his Apache Motor Cycle bearing Regn.No.KA-53-EA-6825 on the left side of Raguvanahalli - Lagumenahalli Road, Near BML Layout, Bidarahalli Hobli, Bengaluru, at that time one Road Roller bearing Regn.No.KA-51-MJ-7854 driven by its driver in a rash and negligent manner and dashed against the SCCH-11 3 MVC.No.2920/2019 petitioner. Due to which, petitioner knocked down and sustained grievous injuries. Immediately he was shifted to Srinivasa Nursing Home, Hosakote and then referred to Hosmat Hospital, Bengaluru, wherein he took treatment as an inpatient. The petitioner has spent Rs.6,00,000/- towards treatment, medicine, conveyance and other incidental charges.
Prior to the accident he was hale and healthy and was working as a mason and earning a sum of Rs.15,000/- per month. Due to the accidental injuries, he suffered permanent disability. The accident occurred due to rash and negligent driving of road roller by its driver. The respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
3. Inspite of service of notice, respondent No.1 did not appear before the tribunal and hence, he has been placed as ex-parte. The respondent No.2 appeared before the tribunal and filed its written statement.
SCCH-11 4 MVC.No.2920/2019
4. The brief contents of written statement of respondent No.2 is as under:
The respondent No.2 has filed counter to petition by denying the petition averments. He has further disputed the manner of accident, age of injured and quantum of compensation claimed under different heads. Further contended that road roller was insured with this respondent at the time of alleged accident. The road roller in question did not involve in the accident nor caused accidental injuries to petitioner. The petitioner was injured due to self fall from motor cycle which he was riding. This respondent has admitted the issuance of policy against the road roller. The driver of road roller and the rider of motor cycle had valid and effective driving license to drive respective classes of vehicle. The amount claimed by the petitioner is highly exorbitant. Hence, prayed for dismissal of the petition.
5. On the basis of the above pleadings, this Tribunal SCCH-11 5 MVC.No.2920/2019 has framed the following issues:
ISSUES
1. Whether petitioner proves that, he sustained grievous injuries in the accident that occurred on 12.04.2019 at about 04.15 p.m., near BML Layout, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru, when he was riding a Motor Cycle bearing Regn.No.KA-53-EA-6825, due to the rash and negligent driving of Road Roller bearing registration No.KA-51-MJ-7854 by its driver?
2. Whether the petitioner is entitled for compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
3. What order or award?
6. In order to prove his case, the petitioner has examined himself as PW.1 and Dr.Krishan Prasad examined as PW.2 and got marked documents at Ex.P.1 to Ex.P.18 and closed his side of evidence. The respondents did not adduce their evidence either oral or documentary.
7. I have heard the arguments from both sides and perused the material available on record.
SCCH-11 6 MVC.No.2920/2019
8. Findings of this tribunal on the above issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the Affirmative;
Issue No.3 : As per final order for the following:-
-:REASONS:-
9. Issue No.1:- The petitioner has contended that on 12.04.2019 at about 4.15 p.m., Near BML Layout, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru District, he met with an accident due to rash and negligent driving of Road Roller bearing Regn.No.KA-51-MJ-7854 by its driver and he sustained grievous injuries.
10. In order to prove rash and negligent driving of Road Roller bearing Regn.No.KA-51-MJ-7854 by its driver, the petitioner has examined himself as PW.1. In his chief examination he has deposed that due to rash and negligent driving of road roller by its driver the accident occurred. On perusal of cross-examination of PW.1 nothing has been elicited SCCH-11 7 MVC.No.2920/2019 from the mouth of PW.1 to disprove the case of petitioner.
11. Further, in order to prove accident, the petitioner has produced Ex.P.1 FIR and Ex.P.2 Complaint. On perusal of Ex.P.2, one witness by name Sri.Rajashekar, S/o.Late Annayappa has lodged a complaint with police on 12.04.2019. Ex.P.3 is injured statement. After registering the case Police went near place of accident and drew up Spot Panchanama as per Ex.P.4 by narrating the place of accident. Ex.P.5 MV Report shows damages caused to vehicle. Even on perusal of Ex.P.6 Wound certificate, it shows that petitioner has sustained grievous injuries and doctor has opined that injuries are grievous in nature. After completion of investigation, the police have filed charge sheet at Ex.P.7 against the driver of offending vehicle for the offences punishable U/s.279 & 338 of IPC. The respondents nothing placed before the tribunal to prove negligence of petitioner. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced as per Exs.P.1 to P.7, this tribunal is of SCCH-11 8 MVC.No.2920/2019 the opinion that the accident has occurred due to rash and negligent driving of Road Roller bearing Regn.No.KA-51-MJ- 7854 by its driver and same has resulted in grievous injuries to the Petitioner. Accordingly, Issue No.1 held in the Affirmative.
12. Issue No.2: In view of held issue No.1 in the Affirmative, the petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical attendants, conveyance, loss of income during treatment, disability, loss of amenities etc., let me discussion one by one.
(i) Towards injury and pain and suffering:-
The petitioner has contended that due to accident he has sustained right neck of femur fracture with right femur mid shaft fracture, right patella comminuted fracture with bone loss, right distal end radius comminuted volar barton SCCH-11 9 MVC.No.2920/2019 fracture, right 5th metacarpal (MC) fracture, right ankle medial malleolus fracture and left femur comminuted subtrochanteric fracture and underwent operation of recon nailing for right femur TBW for right patella, open reduction and internal fixation with VLP for right distal end radius, K- Wire for right 5th MC, open reduction and internal fixation with recon nail with encerclage for left femur, CC screw fixation for right ankle medial melleolus and discharged with an advice to take follow up treatment. In order to prove injuries caused to him, he has produced Ex.P.6 - Wound Certificate, which reveals that petitioner has sustained injuries and doctor has opined that injuries are grievous in nature. The petitioner has produced Discharge Summaries at Ex.P.8 to 10. On perusal of these documents, it shows that, the petitioner took treatment as an inpatient in the said hospitals. So, on perusal of records, the petitioner took treatment in the hospital as an inpatient and the petitioner examined Dr.Krishan Prasad as PW.2 and got marked SCCH-11 10 MVC.No.2920/2019 documents at Ex.P.15 to 18. PW.2/doctor has deposed that he examined the petitioner for assessment of disability for both the limbs at 82% and to the whole body at 27%. By considering the injury and facts and circumstances of the case, the tribunal is of the view that the compensation of Rs.55,000/- is just and reasonable towards pain and suffering.
(ii) Towards Medical Expenses: The petitioner has claimed compensation towards medical expenses. The petitioner contended that he took treatment at Hospital. The petitioner has also produced 56 Medical bills for a sum of Rs.4,56,253/- as per Ex.P.12 and also produced 8 advance bills marked at Ex.P.14 and 15 medical prescriptions marked at Ex.P.13. The respondents not rebutted the medical bills by placing cogent evidence. So, Tribunal is of the view that compensation of Rs.4,56,253/- is just and reasonable towards medical expenses.
(iii) Towards food, extra nourishment and medical SCCH-11 11 MVC.No.2920/2019 attendant charges: On perusal of the records, the accident occurred on 12.04.2019 and the petitioner took treatment as an inpatient in the hospital. On perusal of evidence, the petitioner was inpatient at Hospital as he has sustained injuries. So, during the time of treatment the petitioner also required good food and extra nourishment. The petitioner has produced Discharge Summaries issued by Hosmat Hospital Pvt Ltd., and Omega Multispeciality Hospital at Ex.P.8 to 10, which shows that the petitioner was admitted from 12.04.2019 to 20.04.2019, 11.05.2020 to 15.05.2020 and again from 31.08.2020 to 02.09.2020 i.e., for a period of 17 days. Considering the said fact the Tribunal is of the view that compensation of Rs.400/- per day for 17 days to a sum of Rs.6,800/- is just and reasonable towards food, extra nourishment and medical attendant.
(iv) Towards Conveyance:
The petitioner is the resident of Hancharahalli, Bengaluru. The accident occurred Near BML Layout, SCCH-11 12 MVC.No.2920/2019 Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru. He has admitted for treatment at Hospital. In order to prove this aspect the petitioner has produced Discharge Summaries as per Ex.P.8 to 10. Considering the injuries and facts of the case, the tribunal is of the view that the compensation of Rs.10,000/- is just and proper towards conveyance charges.
(v) Towards loss of income during treatment: The petitioner has contended that he was working as a mason and earning a sum of Rs.15,000/- per month. In order to prove his income, the petitioner has not produced any documents to show that he was earning a sum of Rs.15,000/- per month. In the absence of positive documents regarding his occupation and income, this tribunal will consider notional income. Due to the accidental injuries, the petitioner might have not attended his regular work at least for a period of 2 months.
The Hon'ble High Court of Karnataka fixed notional income of the year 2019 at Rs.14,000/- per SCCH-11 13 MVC.No.2920/2019 month for determination of income before Lok Adalat for the Districts coming under the Hon'ble High Court of Karnataka, Principal Benches, Bengaluru. So, in view of fixing of notional income by the Hon'ble High Court of Karnataka, it is just and proper to this Tribunal to follow the notional income as fixed by the Hon'ble High Court of Karnataka to decide the cases before this Tribunal also. Case on hand the petitioner has not produced any relevant document to prove his income. Accordingly, the notional income of petitioner during the year 2019 treated as Rs.14,000/- per month as fixed by the Hon'ble High Court of Karnataka. Accordingly, the petitioner is entitled for Rs.28,000/- (14,000/- x 2) towards loss of income during treatment.
(vi) Towards Permanent Disability:
The petitioner has contended that due to the accident, he was inpatient at Hospital, and sustained permanent disablement. The petitioner also examined Dr.Krishan Prasad SCCH-11 14 MVC.No.2920/2019 working as an Orthopaedic Surgeon at Hosmat Hospital as PW.2. PW.2/Doctor examined the patient clinically and radiologically to assess disabilities. The doctor deposed that that petitioner has sustained fracture right femur shaft with fracture neck femur, fracture right patella comminuted fracture with bone loss, right ankle medial malleolus fracture, left femur comminuted sub trochanteric fracture, right 5th metacarpal fracture and right distal radius comminuted fracture and underwent recon nailing right femur was done, TBW right patella, kwiring right 5th metacarpal, right wrist, volar locking plate, left femur recon nailing with cerclage wiring right ankle cancellous screw of the medial malleolus was done and the left femur went for infection and implant removal was done with external fixation and bone grafting, the external fixation was removed. The doctor has assessed the disability for both the limbs at 82% and to the whole body at 27%.
The learned counsel for the petitioner by relying SCCH-11 15 MVC.No.2920/2019 Judgment of Rajkumar Vs. Ajay kumar and another reported in 2011 ACJ 1 vehemently argued that petitioner having a disability more than what assessed by the doctor. As such the tribunal has to consider functional disability more than what assessed by the doctor. With due respect to Ho'ble Supreme Court of India, the facts and circumstances of the above judgment and case on hand are not one and the same. The petitioner has not placed any materials before the tribunal to prove that the petitioner unable to perform any work due to accidental injuries. As such by considering the oral and documentary evidence and facts and circumstances of the case, it appears that the petitioner can do his work with difficulty. Therefore, considering all these aspects, the functional disability is assessed at 20%.
In order to prove age of the petitioner, he has not produced any documents, but as per Wound Certificate marked at Ex.P.6, wherein the age of petitioner is mentioned as 28 years as on the date of accident. Hence, the same is SCCH-11 16 MVC.No.2920/2019 taken into consideration for applying multiplier and multiplier 17 is applicable as per Smt. Sarla Verma case. As per ratio laid down in Raj Kumar V/s. Ajay kumar and another, this tribunal not deducted personal expenses of petitioner out of his gross income. Hence, future earning capacity of the petitioner due to permanent disability works out as under :
Annual Income before accident : (14,000/- x 12) = Rs.1,68,000/-
Loss of future earning p.a. (20% of prior annual income) Rs.33,600/-.
Multiplier applicable with reference to age - 17 Loss of future earnings - (33,600/- x 17) = Rs.5,71,200/-. The petitioner is entitled for Rs.5,71,200/- under the head of loss of future earning capacity.
(vi) Deprivation of Future Amenities:-
The doctor has opined that the petitioner sustained grievous injuries and he is unable to do his day-today SCCH-11 17 MVC.No.2920/2019 activities as earlier. By considering the facts and circumstances of the case, the tribunal is of the view that compensation of Rs.20,000/- is just and reasonable under the head deprivation of future amenities.
13. Therefore, the petitioner is entitled for compensation as follows:
Sl.No. Particulars Amount
a. Towards injury pain and suffering Rs.55,000/-
b. Towards medical expenses Rs.4,56,253/-
c. Towards food and extra Rs.6,800/-
nourishment and medical
attendant
d. Towards conveyance Rs.10,000/-
e. Towards loss of income during Rs.28,000/-
treatment
f. Towards loss of future earning Rs.5,71,200/-
g. Deprivation of future amenities Rs.20,000/-
Total compensation Rs.11,47,253/-
14. In MFA.No.100090 of 2014 C/w. MFA.No.25107 of 2013 between Vijay Ishwar Jadhav and others Vs. Ulrich Belchior Fernandes and another, the Hon'ble High Court of SCCH-11 18 MVC.No.2920/2019 Karnataka at Page No.7 at Para No.15 held as follows:
"However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in 169 of the M.V.Act and therefore, the provisions of Section 34 of CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on Judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded."
In view of ratio and dictum laid down by the Hon'ble High Court of Karnataka in the above judgment, the petitioner is entitled for interest @ 6% per annum from the date of petition till its realization.
15. It is already held that the accident occurred due to rash and negligent driving of Road Roller bearing Regn.No.KA- 51-MJ-7854 by its driver. The respondent contended that the driver of offending vehicle was not holding valid and effective driving license at the time of alleged accident. The respondent insurance company has not placed any materials to prove his contention by placing cogent evidence. Even the police authorities have not filed charge sheet against the driver of SCCH-11 19 MVC.No.2920/2019 offending vehicle for the offence punishable U/s.181 of M.V.Act. Hence, the respondent No.1 and 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner. Hence, Issue No.2 answered Partly in the Affirmative.
16. Issue No.3: In view of the findings given on the above said issues, I proceed to pass the following:
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.11,47,253/- (Rupees Eleven Lakhs Forty Seven Thousand Two Hundred and Fifty Three only) with interest at 6% p.a., from the date of petition till realization.
Respondent No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner. Respondent No.2 being the insurer is primarily liable to deposit the said compensation amount within a period SCCH-11 20 MVC.No.2920/2019 of one month from the date of award.
In the event of deposit of the said compensation amount, 40% shall be deposited in the name of petitioner for a period of 3 years in any nationalized bank or scheduled bank and the remaining 60% shall be released in favour of petitioner on proper identification.
After deposit of compensation amount with interest thereon disburse amount as mentioned above as per guidelines laid down by Hon'ble High Court in MFA.No.2509/2019 (ECA) and as per General Circular No.2/2019 dated 19.8.2019.
The petitioner hereby directed to produce particulars of his Bank Account, with name of Bank, IFSC Code, Account Number with copy of First Page of Bank Pass Book which contained compulsorily photographs of petitioner, which is duly attested by concerned Bank. Further petitioner shall produce PAN Card/Aadhaar Card.
In case of deposit of awarded amount with interest thereon by respondent, the petitioner is entitled to receive amount as mentioned above after expiry of period provided for filing an appeal.
Bank shall not advance loan on such FD, and shall SCCH-11 21 MVC.No.2920/2019 not cause premature release of FD without permission from the Tribunal.
Bank shall release amount along with interest thereon in favor of petitioner on proper verification and identification or credit said amount to his account after expiry of three years period of deposit, without waiting for further order of court.
The Advocate fee is fixed at Rs.1,000/-.
Draw up award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 03rd day of March, 2022.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE & ACMM ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 - Sri.R.Gurukrishna
PW.2 - Dr.Krishan Prasad
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR
SCCH-11 22 MVC.No.2920/2019
Ex.P2 Complaint
Ex.P3 Injured Statement
Ex.P4 Mahazar
Ex.P.5 IMV Report
Ex.P6 Wound Certificate
Ex.P7 Charge Sheet
Ex.P8 to 10 3 Discharge Summaries
Ex.P11 3 Photographs with one CD
Ex.P12 56 Medical bills
Ex.P13 15 Medical prescriptions
Ex.P14 8 Advance bills
Ex.P15 & 16 Two Outpatient file
Ex.P17 Inpatient file
Ex.P18 5 X-ray films
LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
-NIL-
LIST OF DOCUMENTS ON BEHALF OF RESPONDENTS :
-NIL-
I ADDL.SCJ. & MACT.