Bangalore District Court
Ashoka V vs Manjunatha Chari.K.N on 19 November, 2024
KABC020302772022
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 19th DAY OF NOVEMBER - 2024
PRESENT : Sri. Shreyansh Doddamani
B.Com. LL.B (Spl),
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC.No.5572/2022 C/w MVC.No.5573/2022
Petitioner Sri.Ashoka. V,
(in MVC.5572/2022) : S/o Venkatappa,
Aged about 28 years,
R/at : Haleuru village,
Nandagudi Hobli,
Hosakote Taluk,
Bengaluru Rural District.
Petitioner Sri. Venkatesh,
(in MVC.5573/2022) : S/o Chikkanagappa,
Aged about 42 years,
R/at : Haleuru village,
Nandagudi Hobli,
Hosakote Taluk,
Bengaluru Rural District.
(By Sri. C.N. Sonnappa, Advocate)
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-Versus-
Respondents 1) Sri. Manjunatha Chari. K.N,
(Common in both S/o Nagalinga Chari,
petitions) : Major in age,
R/at : Santhe Kallahalli village & Post,
Chintamanai Taluk,
Chikkaballapura District.
(By Sri. N. Nagaraja, Advocate)
2. The New India Assurance Company
Limited, Motor TP Hub,
Mahalakshmi Chambers,
No.9, 2nd Floor, M.G.Road,
Bengluru-01.
(By Smt. T.N. Malathi, Advocate)
COMMON JUDGMENT
These petitions are filed under Section 166 of M.V Act
seeking compensation for the injuries sustained in a road traffic
accident. As both the petitions were arising out of the same
accident, they were clubbed together for recording of common
evidence and judgment.
2. The facts leading to the filing of the instant petitions
are that on 11.06.2022 at about 5.00 p.m, when the petitioners
in both the petitions were working as a coolie as a stone slab
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layer to constructing compound wall at Dairy Building, at D.
Shettihalli Village, Nandagudi Hobli, Hosakote Taluk,
Bengaluru District. The petitioners and other coolies were
laying stone slabs over the compound by lifting the stone slabs
with the help of Crane bearing Reg.No.KA-51-MA-4188, the
driver of the crane after lifting one stone slab moved the vehicle
at high speed in a rash and negligent manner in the process,
the stone slab slipped and fell down on both the petitioners and
sustained grievous injuries. Immediately after the incident both
were shifted to Silicon City Hospital, Hosakote and then to
M.V.J. Medical College Hospital, Hosakote, wherein they took
treatment as an inpatient and undergone several surgeries and
discharged with an advised to take follow-up treatment. They
have spent substantial amount towards medical and other
incidental expenses. On account of the accidental injuries both
the petitioners have suffered permanent disablement. It is
contended that the accident happened because of rash and
negligent driving of the driver of Crane and as such both the
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respondents are jointly and severally liable to pay the
compensation. Hence prayed to allow the petitions.
3. Notice was duly served to respondent No.1. Respondent
No.1 appeared through his counsel by filing written statement
rather objections to the main petition contending that the
petition itself is not maintainable either law or on facts. The
respondent No.1 admitted that he is the RC owner of the Crane
bearing Reg.No.KA-51-MA-4188 and was duly insured with the
2nd respondent and same was in force as on the date of
accident. It is further submitted that the driver of the crane also
possess valid and effective driving licence. This respondent has
denied that the accident was occurred due to the rash and
negligent act of the driver of the crane. Per contra it is
contended that the said impact has been occurred due to the
negligence on the part of the petitioners. Further denied all the
allegation made in the petition. Hence prayed to dismiss the
petitions.
4. The respondent No.2 appeared through its counsel and
filed written statement by contending that the petition is not
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maintainable either law or on facts. The respondent No.2
admitted the issuance of insurance policy in respect of Crane
bearing Reg.No.KA-51-MA-4188 which is an Act policy. However
the liability if any is pleaded to be subject to the terms &
conditions of the policy. Further the respondent No.2 has
contended that, the owner and the concerned police have not
complied the mandatory provision of Sections 134(c), 146(1)
and (2), 147 of M.V.Act. As per Sec.146 and 147 the death or
bodily injury to any passenger of a public service vehicle caused
by or arising out of the use of the vehicle in a public place. This
respondent contended that it is an admitted fact that the
petitioners have sustained the alleged injuries while working in
the site / building, laying stone slabs to construct a compound
wall, which is a private place. Sec.2(34) reads as Public place
means a road, street, way or other place, whether a
thoroughfare or not, to which the public have a right of access,
and includes any place or stand at which passengers are picked
up or set down by a stage carriage. Here in this case, admittedly
the offending vehicle was being used to lift the stone slabs and
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place at the earmarked place for construction of a compound
wall and the same was being carried out in the private place,
inside the site/ building. The private building / site cannot by
any stretch be considered to be a place for which the public
would have access. Hence, the insurance policy issued in
respect of the offending vehicle is since an Act policy which
covers the risk of liability to third parties as restricted by
sec.147 of the Act, the insurance company is not a necessary
party and is not liable to pay any compensation. Further it is
contended that the the MLC indicate that the accident has
occurred at workplace and the wound certificate indicate the
history of accident as "Accidental fall of stone by crane" and
does not indicate as RTA. Further it is denied the negligent act
on the part of the driver of the Crane, but contended that the
the petitioners were negligently standing on the site, without
watching the movements of the crane and the stone slab has
slipped and fallen, resulting injuries and not by use of the
accused vehicle. It is pertinent to note that the police have not
invoked Sec.279 of IPC in the charge sheet, which clearly
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establishes that the accident occurred due to rash and
negligent use of any vehicle. The police have invoked only
Section 338 of IPC, which speaks about grievous hurt. It is also
urged that there is inordinate delay of 45 days in lodging the
complaint that itself vibrantly discloses that the case is foisted
so as to wangle the compensation amount from the insurance
company. Further denied all the allegation made in the petition.
Hence prayed to dismiss the petitions.
5. On the basis of the above pleadings the following issues
(which are common in both the petitions) were framed :
ISSUES
1) Whether the petitioner proves that he sustained
injuries in a road traffic accident that occurred
on 11.06.2022 at about 5.00 p.m., near D.
Shetihalli village, Nandagudi Hobli, Hosakote
Taluk, Bengaluru District, due to actionable
negligence of the driver of Crane bearing
Reg.No.KA-51-MA-4188 ?
2) Whether the petitioner is entitled for
compensation as prayed for? If so, at what rate
and from whom ?
3) What order or award ?
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6. The petitioner in MVC.5573/2022 got examined himself
as PW.1 and got marked Ex.P.1 to 14 documents. The petitioner
in MVC.5572/2022 got examined himself as PW.2 and got
marked Ex.P.15 to 23 documents. The petitioners in both the
petitions have got examined MRO of Silicon City Hospital as
PW.3 and 4 and through him got marked Ex.P.24 to 27 and 28
to 31 documents. Further the petitioners have also got
examined the MRD at M.V.J. Medical college and Research
Hospital, Hosakote as PW.5 and through him got marked
Ex.P.32 & 33 documents. The MRT of Akash Hospital examined
as PW.6 and through her got marked Ex.P.34 & 35 documents.
The petitioners have also examined Dr. Nagaraj. B.N.,
Orthopedic Surgeon as PW.7. Ex's.P36 to 39 were marked
through him. The petitioner in MVC.5573/2022 got examined
Sri. Jawahar. B.K, Urologist at Jayanagar General Hospital,
Bengaluru as PW.8 and through him got marked Ex.P.40
document. The MRO at Victoria Hospital was examined as PW.9
and through him got marked Ex.P.41 & 42 documents. The
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respondent No.2 got examined its Official as RW.1. Ex's.R1 to 4
were marked on behalf of the insurance company.
7. Heard erudite counsel for the petitioners and
respondents counsel on merits. Perused the entire materials
placed on record.
8. This tribunal answers to the above issues in both the
petitions are as follows :-
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 (IN BOTH THE PETITIONS) : The evidence
on record reveals that after the receipt of complaint lodged by
one Sri. Venkatappa, the jurisdictional police conducted
thorough investigation and filed charge sheet against the driver
of Crane bearing Reg.No.KA-51-MA-4188 for the offences
punishable u/s 338 of IPC. There is nothing on record to believe
that the charge sheet filed by the police is defective or collusive.
No independent witness was either produced by the insurer to
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displace the version of the accident as deposed by the injured
claimants. Under such circumstances the evidence of PW's.1 &
2 which is supported by police documents has to be accepted.
Consequently I hold that the accident is proved to have been
caused due to the negligent act of the driver of Crane bearing
Reg.No.KA-51-MA-4188.
10. The learned counsel for respondent No.2 drew the
attention of this Court as to the delay in lodging the complaint.
Indeed there is delay of 45 days in lodging the complaint. It is
the specific contention of the petitioners that, they have
sustained grievous injuries due to the negligent act of the driver
of the crane on 11.06.2022 at about 5.00 p.m. The Criminal law
was set into motion on 26.07.2022 at about 2.30 p.m, which is
reflected in Ex.P.2 FIS. It could be borne out from the FIS itself
that, injured persons were taken to Silicon City Hospital and
then to M.V.J. Medical College and Research Hospital, Hosakote
for treatment as such there was a delay in lodging FIS. It could
be borne out from the FIS itself that injured was taken to
hospital for treatment as such there was a delay in lodging FIS
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for 45 days. Further more Medical Record Officer at Silicon City
Hospital is examined as PW.3 & 4. He has produced the MLC
extract as per Ex.P.26 & 30. Further MRD at MVJ. Medical
college Hospital, Hosakote and Akash Hospital, Devanahalli
were examined as PW.5 & 6 and got marked Ex.P.32 to 35
documents. On close perusal of the above said MLC extract it
reflects as to the date of the soon after the accident he was
taken to the hospital. When such is the case in the presence of
Ex.P.26 & 30 MLC this court cannot find fault with the alleged
delay.
11. It could be borne out from the medical records itself
discloses that injured was very severely injured in RTA. When
the petitioners are fighting for their life, the relatives of the
petitioners cannot be expected to set criminal law in motion.
The predominant responsibility of the family of the injured will
be saving the kith and kin's life rather fighting for justice. When
such being the case this court cannot found fault with the mere
delay of 45 days in lodging FIR. In this regard it is relevant to
rely on the decision in Ravi v/s. Badrinarayan and others
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reported in AIR 2011 SC 1226, wherein the Hon'ble Apex
Court has observed as hereunder :
"The purpose of lodging the FIR in motor accident cases
is primarily to intimate the police to initiate
investigation of criminal offences. Lodging of FIR
certainly proves factum of accident so that the victim is
able to lodge a case for compensation but delay in
doing so cannot be the main ground for rejecting the
claim petition. In other words, although lodging of FIR
is vital in deciding motor accident claim cases, delay in
lodging the same should not be treated as fatal for
such proceedings, if claimant has been able to
demonstrate satisfactory and cogent reasons for it.
There could be variety of reasons in genuine cases for
delayed lodgment of FIR. Unless kith and kin of the
victim are able to regain a certain level of tranquillity of
mind and are composed to lodge it, even if there is
delay, the same deserve to be condoned. In such
circumstances, the authenticity of the FIR assumes
much more significance than delay in lodging thereof
supported by cogent reasons.
If the court finds that there is no indication of
fabrication or it has not been concocted or
engineered to implicate innocent persons then
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even if there is a delay in lodging the FIR, the
claim case cannot be dismissed merely on that
ground."
(Emphasis supplied by me).
Under such circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR with the
Police. Delay in lodging the FIR thus, cannot be the ground to
deny justice to the victims. In cases of delay, the courts are
required to examine the evidence with a closer scrutiny and in
doing so; the contents of the FIR should also be scrutinized
more carefully. If court finds that there is no indication of
fabrication or it has not been concocted or engineered to
implicate innocent persons then, even if there is a delay in
lodging the FIR, the claim case cannot be dismissed merely on
that ground. The ratio decidendi laid down by Hon'ble Apex
Court is aptly applicable to the facts of the instant case. The
petitioner had explained the delay caused. The petitioner clearly
demonstrated as to the involvement of the insured vehicle in the
incident. Further the respondents not seriously disputed the
incident. It is the duty of the police after receiving MLC he shall
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visit to the victims and recorded the first information statement.
But in the present case the concerned SHO failed to record the
statement of victims after receiving MLC. Because of the
attitude of SHO and IO, delay has been caused. With this
observation issue No.1 in both the petitions is answered as 'In
the Affirmative'.
12. ISSUE NO.2 (IN MVC.5572/2022) : As already
discussed above the petitioner has proved that the accident
took place due to the actionable negligent act of the driver of the
Crane. Therefore he is entitled for compensation.
13. AGE, AVOCATION AND INCOME : The petitioner
himself examined as PW.2 and has exhibited his Aadhaar card
at Ex.P16, wherein his year of birth is reflected as 1992. This
indicates that he was aged 30 years on the date of accident.
14. It is specifically urged by the petitioner that, he was
working as Coolie and earning sum of 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
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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. 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
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
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11.06.2022. Therefore, Rs.15,500/- has to be taken into
consideration as monthly income of the petitioner.
15. As per the Wound certificate and discharge summary
marked at Ex.P15 & 17 the petitioner has sustained the
following injuries : Right leg both bone fracture (Type-II A
open fracture tibia of right leg). It is needless to say that the
injury is grievous in nature. The discharge summary as per
Ex.P.17 of Silicon City Hospital, Hoskote indicates that the
petitioner was treated as an inpatient from 11.06.2022 to
20.06.2022 (10 days in total). During the course of treatment he
had undergone surgery in the form of : Closed Reduction +
Exfix + Wound debridement done on 12.06.2022.
16. 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.Nagaraj.
B.N as PW.7 who stated that on clinical examination conducted
by him, he found that petitioner has sustained Right leg both
bones fracture type II A compound. As per the Discharge
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summary the petitioner was treated at Silicon City Hospital with
CR & Exfix with Wound debridement on 12.06.2022 and later
was referred to Mahaveer Jain Hospital for opinion where he
was advised to right below knee amputation hence he was
treated at MVJ Hospital and underwent right below knee
amputation on 22.06.2022 and later wound debridement on
11.07.2022 and thereafter he was discharged on 13.07.2022
and the injured said that he was on regular follow up in the
same hospital and the stump healed. That on examination he
found that the petitioner has right lower limb below knee stump
measuring 5 inches (20"). The recent X-ray of the right leg
shows evidence of below knee amputation. Further the
petitioner was clinically and radiologically examined and the
assessment of disability was done as per the Central govt.
notification dated 5.1.2018. Further he found that petitioner
has sustained below knee amputation upto upper 1/3rd of leg
70%. During the course of his cross-examination he denied the
suggestions with regard to the assessment of disability.
However from the careful examination of the medical records, it
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is seen that PW.2 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 Rajkumar's case reported in
(2011) 1 SCC 343. By applying the said precedent to the
present case on hand, from the petition averments it could be
culled out that petitioner being the 30 years age old has lost his
leg and because of this he may suffer huge pain and
embarrassment in the society. At his young age has to suffer
this unbearable pain. The petitioner has to depend on some one
for his livelihood. When such is the case 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. Whereas the petitioner can develop the new skills
and opt for career transition. The record reveals that the
petitioner is a coolie worker. For a coolie worker loosing his
right leg is a great set back. For the rest of his life he has to
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work without his right leg. 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 40%, cannot be ruled out. Therefore, this Tribunal consider
the functional disability of the petitioner at 40%. As already
discussed above the petitioner has proved that the accident
took place due to the actionable negligence of the driver of
Crane. Therefore he is entitled for compensation under the
following heads :
17. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD
& CONVEYANCE CHARGES : The period of hospitalization of
10 days is proved. 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.2,000/- per day and a sum of Rs.20,000/- (2,000 X 10) is
awarded under this head.
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18. PAIN & SUFFERINGS : On account of the accidental
injuries the petitioner would have had undergone pain and
mental agony. The documents discloses that petitioner had
sustained injury to (i) Below knee amputation upto upper
1/3rd of leg. The petitioner has to suffer this unbearable pain
of amputation. Having regard to the fractures and amputation
of the leg suffered by the petitioner to weight bearing bones and
such other attending circumstances. Thus this Tribunal awards
a sum of Rs.80,000/- under this head.
19. 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 at least 6
months. Thus by taking into account the notional income of the
petitioner, this Tribunal awards a sum of Rs.93,000/- (15,500
X 6) under this head.
20. MEDICAL EXPENSES : As per the bills marked at
Ex.P21, the petitioner has spent Rs.1,46,785/- towards medical
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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.1,46,785/- which is
rounded off to Rs.1,46,800/- towards medical expenses.
21. LOSS OF FUTURE INCOME DUE TO DISABILITY: As
per Sarla Verma's case, the appropriate multiplier applicable is
'17' as the petitioner was aged about 30 years. This Tribunal
has already assessed the notional income of the petitioner at
Rs.15,500/- p.m. Hence a sum of Rs.12,64,800/- (Rs.15,500 X
12 X 17 X 40%/100) is awarded under this head.
22. LOSS OF FUTURE AMENITIES AND HAPPINESS: As
per the medical records the petitioner was aged 30 years at the
time of accident. His right below knee is amputed. At such
unfortunately he has suffered 40% permanent physical
disability to the whole body. Hence he will not only face
difficulties in performing his day today activities but will also
not be able to enjoy his rest of the life to its fullest extent.
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Therefore it would be just and reasonable to award a sum of
Rs.1,00,000/- under this head.
23. FUTURE PROSPECTS: The accident & resultant
amputation of right leg would definitely hamper the petitioner's
prospect of getting any employment in future. Someway or the
other the amputation would affect his future prospects both
professionally and personally. For the loss that the petitioner
shall suffer in this regard ends of justice would be met if he is
awarded a compensation of Rs.1,00,000/- under this head.
24. FUTURE MEDICAL & OTHER INCIDENTAL
EXPENSES: The doctor witness stated that the petitioner has to
needs knee prothesis for movements and which may cost
approximately Rs.2,00,000/- to Rs.3,00,000/- and the said
prosthesis needs regular maintenance which costs around
Rs.10,000/- annualy. No estimation is produced to show the
future medical expenses. In this context what deserves notice is
that with technological advancement the quality of artificial
limbs has improved and these advanced artificial limbs do come
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at a substantive price. Further like any other machinery they
also require maintenance throughout the lifetime of the
petitioner. Considering all these factors, the petitioner is
entitled for compensation of Rs.1,00,000/- under this head,
which shall not carry any interest.
25. The calculation table stands as follows :
1 Attendant charges, extra : 20,000-00
nutritious food & conveyance
charges
2 Pain & sufferings : 80,000-00
3 Loss of income during laid-up : 93,000-00
period
4 Medical expenses : 1,46,800-00
5 Loss of future income due to : 12,64,800-00
disability
6 Loss of future amenities & : 1,00,000-00
happiness
7 Future prospects : 1,00,000-00
8 Future medical and other : 1,00,000-00
incidental expenses
Total 19,04,600-00
26. ISSUE NO.2 (IN MVC.5573/2022) : As already
discussed above the petitioner has proved that the accident
took place due to the actionable negligent act of the driver of the
Crane. Therefore he is entitled for compensation.
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27. AGE, AVOCATION AND INCOME : The petitioner
himself examined as PW.1 and has exhibited his Aadhaar card
at Ex.P9, wherein his date of birth is reflected as 21.07.1981.
This indicates that he was aged 41 years on the date of
accident.
28. It is specifically urged by the petitioner that, he was
working as Coolie and earning sum of 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. In view of the
above decision, the accident was occurred on 11.06.2022.
Therefore, Rs.15,500/- has to be taken into consideration as
monthly income of the petitioner.
29. As per the medical records, PW.1 has sustained the
following injuries : (i) Urethral injury with bleeding (ii) Left
superior pubic rami fracture. It is needless to say that the
said injuries are grievous in nature. The petitioner has
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produced Ex.P.10 being the Discharge summaries (6 in no's)
the details mentioned as below :
Sl. Name of the hospitals From To Total
No
1 Silicon City Hospital, 11.06.2022 17.06.2022 7 days
Hosakote
2 MVJ Medical College 01.07.2022 13.07.2022 13 days
Hospital, Hosakote
3 Institute of Nephro- 22.09.2022 27.09.2022 6 days
Urology, Victoria
Hospital, Bengaluru
4 Institute of Nephro- 09.11.2022 11.11.2022 3 days
Urology, Victoria
Hospital, Bengaluru
5 Akash Institute of 14.11.2022 19.11.2022 6 days
Medical Sciences,
Bengaluru
6 Institute of Nephro- 03.12.2022 15.12.2022 12 days
Urology, Victoria
Hospital, Bengaluru
Total 47 days
The above said hospitals indicates that the petitioner was
treated as an inpatient in the said hospital for the period from
47 days in total. During the course of treatment he had
undergone surgeries in the form of : (i) SPC Under LA (ii)
PFUI with stricture of bulbar and membranous urethra
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with complete cut off (iii) Anastomotic urethroplasty
under SA on 09.12.2022 and further he treated
conservatively.
30. It is the specific case of the petitioner that owing to
accidental injuries he became disabled and lost his earning
capacity. Therefore he got examined Dr. Nagaraj. B.N,
Orthopedic Surgeon at SOADS, Bengaluru as PW.7 who
stated that on clinical examination conducted by him, he
found that petitioner has sustained SPC for the urethral
injury and the fracture was treated conservatively. Further
he underwent urethroplasty surgery and thereby he assessed
permanent physical impairment in right lower limb at 42%
and whole body disability at 14%. If the cross-examination of
PW.7 is perused it becomes clear that the petitioner was
treated conservatively and fracture is united.
31. The petitioner also examined Dr. Jawahar. B.K,
Urologist at Jayanagar General Hospital as PW.8 who upon
examination noted that the petitioner has sustained left
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SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
superior pubic rami fracture and urethral injury. Further he
stated that the petitioner undergone superapubic
catharisation done under LA and Anastomatic urethroplasty
done under SA. He also appears to have no reflex or voluntary
control of the bladder it belongs to Class - IV impairment of
whole man is 60%. This witness has certified that the
petitioner has undergone Arastomatic Urethroplasty due to
pelvic fracture urethral distraction defect and as there is no
sexual function possible it is class - III - impairment of whole
man 20% in total it is 80% of the whole genito urinary
system. During the course of his cross examination P.W.8
stated that he has not treated the petitioner. Further he sated
that after the lapse of 2 years from the date of incident he has
assessed the disability. He categorically admitted that the
fractures are united and he has not given the disability
certificate. However from the careful examination of the medical
records, it is seen that PW.7 & 8 has assessed the disability on
the higher side. Be that as it may, the law is well settled that it
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SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
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 Rajkumar's case
reported in(2011) 1 SCC 343. Considering the nature of
injuries, line of treatment and on appreciation of the clinical
findings noted by the doctors, the possibility of the fact that the
petitioner may be having economical or functional disability to
the extent of 30%, cannot be ruled out. Therefore, I consider the
functional disability of the petitioner at 30%.
32. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD
& CONVEYANCE CHARGES : The period of hospitalization of
47 days is proved. 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.2,000/- per day and a sum of Rs.94,000/- (2,000 X 10) is
awarded under this head.
29
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MVC.5572/2022 C/w MVC.5573/2022
33. PAIN & SUFFERINGS : On account of the accidental
injuries the petitioner would have had undergone pain and
mental agony. The documents discloses that petitioner had
sustained injuries to Urethral injury with bleeding and left
superior pubic rami fracture. Admittedly petitioner had
suffered fracture injuries for which he underwent surgery. As
such, necessarily he had undergone pain & mental agony.
Thus this Tribunal awards a sum of Rs.80,000/- under this
head.
34. 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 6
months. Thus by taking into account the notional income of the
petitioner, this Tribunal awards Rs.93,000/- (15,500 X 6)
under this head.
35. MEDICAL EXPENSES : As per the bills marked at
Ex.P11 the petitioner has spent Rs.92,878/- towards medical
30
SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
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.92,878/- which is
rounded off to Rs.93,000/- towards medical expenses.
36. LOSS OF FUTURE INCOME DUE TO DISABILITY: As
per Sarla Verma's case, the appropriate multiplier applicable is
'14'. This Tribunal has already assessed the notional income of
the petitioner at Rs.15,500/- p.m. Hence a sum of
Rs.7,81,200/- (Rs.15,500 X 12 X 14 X 30/100) is awarded
under this head.
37. 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. Thereby the petitioner would obviously face
disappointment and frustration & also suffer discomfort in
enjoying the normal pleasures and joys of human life. Hence
a sum of Rs.80,000/- is awarded under this head.
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MVC.5572/2022 C/w MVC.5573/2022
38. FUTURE MEDICAL EXPENSES : No evidence is
brought on record to demonstrate the requirement for further
treatment and the medical & incidental expenses to be incurred
therefrom. In the absence of proof no amount is awarded under
this head.
39. The calculation table stands as follows :
1 Attendant charges, extra : 94,000-00
nutritious food & conveyance
charges
2 Pain & sufferings : 80,000-00
3 Loss of income during laid-up : 93,000-00
period
4 Medical expenses : 93,000-00
5 Loss of future income due to : 7,81,200-00
disability
6 Loss of future amenities & : 80,000-00
happiness
7 Future medical expenses : - Nil -
Total 12,21,200-00
40. 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% p.a, is awarded it
would meet the ends of justice.
41. There is no dispute with regard to the issuance of
insurance policy and its validity as on the date of accident. But
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SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
the learned advocate for respondent No.2 argued that the policy
is Act policy (liability only policy) and it does not cover the risk
of the insured, driver, employees, coolies. Coolies employed for
operation and or maintaining or loading and unloading
occupants of the insured vehicle. Therefore, the petitioners
being the coolies or not coming under the meaning of third
parties. They are not covered. Hence respondent No.2 company
is not liable to pay the compensation. He further argued that as
per Sub-Section (1) of Section 146 and Sub Sections (1) & (2) of
Section 147 of M.V.Act if the accident took place in public place,
but the alleged incident took place in the private place.
Therefore, petitioners are not entitled for compensation. As per
the FIR, charge sheet and Spot panchanama, accident took
place at the time of constructing of compound wall of the Milk
diary of D. Settihalli village. As per the meaning of public place
as per Sec.2(34) of M.V.Act means a road, street, way or other
place, whether a thoroughfare or not, to which the public have
right of access, and includes any place or stand at which
passengers are picked up or set down by a stage carriage. In the
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SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
present case admittedly accident took place at the time of
constructing the wall of Milk Dairy of D. Shettihalli village,
which access with general public. The said Diary collected the
milk from the any public. It is a public place. Therefore the
contention of the respondent No.2 as it is a private place is not
considerable. The said contention does not holds any water.
42. The main contention of the respondent No.2 is the
policy issued by them is an Act policy it means liability only
policy and does not cover the risk of the insured, driver,
employees, coolies employed for operation and or maintaining
and or loading and or unloading occupants of the insured
vehicle. In this regard they have relied on the decision of
MFA.No.6969/2015(MV-D) c/w MFA.No.6055/2015 (MV-D). In
the said case, Hon'ble High Court of Karnataka observed that if
the insurance received in respect of offending vehicle is an Act
only policy which covers the risk of liability to third parties as a
restricted by Sec.147 of the Act. Insurance company liable to
pay the compensation if liability only in respect of any liability
arising from the use of the offending vehicle in a public place.
34
SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
The insurance company is not liable to pay the compensation in
respect of the death of deceased who is owner of the land and
the respondent No.1, the owner of the offending vehicle is liable
to pay the compensation. On careful reading of the said case at
the time of digging the bore-well due to breaking of bore-well rig
falling down on the deceased when he was standing near the
bore-well lorry at the time of drilling the well in the deceased's
land. The drilling machine was not insured with the respondent
therefore there was no nexus between the accident and use of
the bor-well lorry by the driver. Therefore, the Hon'ble High
Court held that owner is liable. The facts of the said case and
the present case are very different. In the present case the
petitioners were not the coolies employed for operation or
maintaining or loading or unloading occupants of the insured
vehicle. They were construction coolies. There was no
relationship of employment and employee relationship between
the owner of the vehicle & petitioners. They were not employees
of the owner of the said offending vehicle. They were
constructing the wall, the said vehicle was using for lifting the
35
SCCH-23
MVC.5572/2022 C/w MVC.5573/2022
stone slabs. The accident took place due to the negligence of
the operator of the machine. Therefore, the said petitioners are
third parties and insurance company is liable to pay the
compensation to the petitioners.
43. Therefore, the respondent No.1 being the owner of the
offending Crane bearing Reg.No.KA-51-MA-4188 & respondent
No.2 being the insurer thereof are jointly & severally liable to
pay the aforesaid award amount to the petitioners together with
interest @ 6% p.a., from the date of claim petition till realization
of the entire amount. 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.
Accordingly issue No.2 (in both the petitions) is answered as
'Partly in the Affirmative'.
44. ISSUE NO.3 (IN BOTH 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 :
36SCCH-23 MVC.5572/2022 C/w MVC.5573/2022 The petitioner in MVC No.5572/2022 is entitled for compensation of Rs.19,04,600/- with interest at the rate of 6% p.a. (Excluding future medical expenses) from the date of claim petition till realization of the entire award amount.
The petitioner in MVC No.5573/2022 is entitled for compensation of Rs.12,21,200/- with interest at the rate of 6% p.a. from the date of claim petition till realization of the entire award amount.
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.
Out of the above said compensation amount awarded to the petitioners in both cases, 80% of the award amount with accrued interest shall be paid to them 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 respective petitioners in any Nationalized or Scheduled bank for a period of 3 years.
Advocate fee is fixed at Rs.1,000/- in each case. The original judgment shall be kept in MVC.No.5572/2022 and copy thereof shall be maintained in MVC.No.5573/2022 for reference.37
SCCH-23 MVC.5572/2022 C/w MVC.5573/2022 Draw an award accordingly in both the petitions.
(Dictated to the Stenographer directly on computer & printout taken by him, then corrected and pronounced by me in the open court on this the 19th day of November - 2024).
(Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
PW.1 : Sri. Venkatesh PW.2 : Sri. Ashoka. V PW.3 : Sri. Mahesha PW.4 : Sri. Mahesha PW.5 : Sri. G. Arumugam PW.6 : Smt. Shyamala. S PW.7 : Dr. Nagaraj. B.N PW.8 : Sri. Jawahar. B.K PW.9 : Sri. Sudeesh.M.B
List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR Ex.P.2 True copy of Complaint Ex.P.3 True copy of Spot Mahazar Ex.P.4 True copy of Vehicle Seizure Mahazar Ex.P.5 True copy of IMV Report Ex.P.6 True copy of Wound Certificate Ex.P.7 True copy of Charge Sheet Ex.P.8 True copy of order-sheet in CC 458/2023 before
Hon'ble II Additional Civil Judge & JMFC, Hoskote 38 SCCH-23 MVC.5572/2022 C/w MVC.5573/2022 Ex.P.9 Notarized copy of the Aadhaar card of petitioner Ex.P.10 Discharge Summary (6 in Nos.) Ex.P.11 64 Medical bills amounting to Rs.92,878/- Ex.P.12 Prescriptions (26 in Nos.) Ex.P.13 Advance receipts (5 in Nos.) Ex.P.14 X-ray sheet (10 in Nos.) Ex.P.15 True copy of Wound Certificate Ex.P.16 Notarized copy of the Aadhaar card of petitioner Ex.P.17 Discharge Summary (2 in Nos.) Ex.P.18 Medical Certificates (3 in Nos.) Ex.P.19 Photographs (3 in Nos.) Ex.P.20 CD Ex.P.21 103 Medical bills amounting to Rs.1,46,785/- Ex.P.22 Prescriptions (66 in Nos.) Ex.P.23 Advance Receipts (2 in Nos.) Ex.P.24 Authorization Letter Ex.P.25 Police Intimation Ex.P.26 MLC Extract Ex.P.27 Case sheet Ex.P.28 Authorization Letter Ex.P.29 Police Intimation Ex.P.30 MLC Extract Ex.P.31 Case sheet Ex.P.32 Authorization Letter (2 in Nos) Ex.P.33 Case sheet (2 in Nos.) Ex.P.34 Authorization Letter Ex.P.35 Case sheet Ex.P.36 Clinical Notes in MVC No.5572/2022 39 SCCH-23 MVC.5572/2022 C/w MVC.5573/2022 Ex.P.37 Clinical Notes in MVC No.5573/2022 Ex.P.38 X-ray sheet in MVC No.5572/2022 Ex.P.39 X-ray sheet in MVC No.5573/2022 Ex.P.40 OPD card Ex.P.41 Authorization letter Ex.P.42 Entire Case sheet of Venkatesh 3 in nos. List of witnesses examined for the respondent/s:
RW.1 : Smt. Chandana. C.S List of documents marked for the respondent/s:
Ex.R1 : Authorization letter Ex.R2 : True copy of insurance policy Ex.R3 : True copy of policy premium schedule Ex.R4 : Copy of letter issued to owner with postal receipt (Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.