Bangalore District Court
Mr. Hariprasad vs Mr. Bhaskar R on 17 January, 2023
SCCH-21 1 MVC-448/2020
IN THE COURT OF XVII ADDL. JUDGE, COURT OF SMALL
CAUSES, & MEMBER, M.A.C.T,
MAYO HALL UNIT, BENGALURU (SCCH-21)
Dated this the 17th Day of January 2023
PRESENT: Sri. RAJESH M. KAMATE, B.com., L.L.B(Spl.),
XVII ADDL. JUDGE, Court of Small
Causes & Member, M.A.C.T.,
Bengaluru.
M.V.C. No. 448/2020
Petitioner/s: Mr. Hariprasad,
S/o. Krishn Naik,
Aged about 30 years,
R/at Rachayanadoddi,
.R Doddi (post),
Kanakapura Taluk,
Ramanagara Dist.
(By Sri. M.Subramani, Advocate)
-Vs-
Respondent/s: 1. Mr. Bhaskar R.,
S/o. Ramareddy H.M.,
#235, Malleshwara Nilaya,
9th main, 2nd Cross, Manjunatha Layout,
Munnekolala, Marathahalli,
Bangalore - 560037.
(Owner of car bearing No.KA-53-MC-8876)
(By Sri. L.M., Advocate)
2. HDFC ERGO General Insurance Co., Ltd.,
No.25/1, 2nd Floor,
Shankaranarayana Building,
M.G.Road, Bangalore - 560001.
(Policy No.2311202544563400000
Valid from 10.12.2018 to 09.12.2019)
(By Sri. K.P., Advocate)
SCCH-21 2 MVC-448/2020
3. Sri. N. Munickam,
S/o. V.S. Namchivayam,
No.6, 2nd Street, Sundaran Cross,
Ulsoor, Bangalore - 560008.
(Owner of the lorry bearing Reg. No.KA-52-
9198)
Exparte
4. United India Insurance Co., Ltd.,
TP-HUB, No.18, Krushivhavan,
6th Floor, Nrupathunga Road,
Opp. Hudson Circle,
Bangalore - 01.
(Policy No.0510013118P111169547
Valid from 29.11.2018 to 28.11.2019)
(By Sri. K.R.S., Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of the Motor Vehicles Act, 1989, claiming compensation of Rs.1,00,00,000/- for the injuries sustained by him in the road traffic accident that took place on 15.11.2019.
2. The brief facts of the case of the petitioner as follows:
On 15.11.2019 at about 12.40 p.m., while petitioner was proceeding in the motor cycle bearing Reg. No.KA-42-S- 1182 by riding the same, near Madhuloka Wine shop, Varthur Kodi, Bengaluru, at that time, the driver of car bearing Reg. No.KA-53-MC-8876 without observing the petitioner's vehicle negligently opened the front right side door and due to the impact petitioner fell on the road. At that time, driver of the lorry bearing Reg.No.KA-52-9198 by driving it in a rash and SCCH-21 3 MVC-448/2020 negligent manner came in the same direction, caused the accident and the front left wheel of the lorry ran over his right hand and petitioner sustained injuries. Immediately after the accident, the petitioner was shifted to Columbia Asia hospital wherein he took treatment for the accidental injuries sustained by him. It is stated that he has spent more than Rs.20,00,000/- for his treatment, medicine etc.,
3. It is further stated that prior to the accident, he was hale and healthy and was working as Key Account Executive at Amazon Distributors Pvt. Ltd., Bangalore and earning Rs.40,000/- per month. Due to the accidental injuries, he is not able to do his work as doing earlier. It is stated that the accident in question was due to the rash and negligence on the part of the driver of the car bearing Reg. No. KA-53-MC- 8876 and driver of lorry bearing Reg. No.KA-52-9198. Hence, the 1st and 3rd respondents being the owners and 2nd and 4th respondents being the insurers of the offending vehicles are jointly and severally liable to pay the compensation.
4. On service of notice, the respondents No.1,2 and 4 entered their appearance through their respective learned counsels and respondents No.2 and 4 filed their objection statements and the respondent No.1 has not filed written statement.
5. The 2nd respondent in its objection statement has denied all the petition averments and contended that the petition itself is not maintainable either on facts or law. The 2nd respondent has denied the age, income, occupation and SCCH-21 4 MVC-448/2020 medical expenses spent by the petitioner. It has also denied the alleged negligence of the driver of the car and contended that the accident has occurred only due to the negligence on the part of the driver of the lorry. The respondent No.2 has admitted the issuance of insurance policy in respect of the car bearing Reg. No.KA-53-MC-8876 and contended that its liability is subject to the terms and conditions of the policy. 2 nd respondent has further contended that the driver of the car was not holding valid D.L at the time of accident. It has further contended that the compensation and interest claimed by the petitioner are excessive and exorbitant. Hence, on all these grounds sought for dismissal of the petition.
6. Respondent No.4 in its objection statement has denied all the petition averments and contended that the petition itself is not maintainable either on facts or law. The 4 th respondent has denied the age, income and occupation of the petitioner. It has also denied the amount spent towards medical expenses by the petitioner. The respondent No.4 has further denied the alleged negligence of the driver of the lorry and contended that the accident has occurred due to the negligence of the driver of the car who suddenly opened the car door and also rider of the motor cycle. Further contended that driver of the lorry was not holding valid D.L and therefore, it is not liable to pay the compensation. The 4 th respondent has admitted the issuance of insurance policy in respect of lorry bearing Reg. No. KA-25-9298 and contended that its liability is subject to the terms and conditions of the policy. The 4 th respondent has further contended that the compensation and interest claimed by the petitioner are excessive and exorbitant.
SCCH-21 5 MVC-448/2020Hence, on all these grounds sought for dismissal of the petition.
7. Based on the pleadings, following issues are framed:-
ISSUES
1. Whether the petitioner proves that on 15.11.2019 at about 12.40 p.m., while petitioner was proceeding in the motor cycle bearing Reg. No.KA-42-S-1182 by riding the same, near Madhuloka Wine shop, Varthur Kodi, Bengaluru, at that time, the driver of car bearing Reg. No.KA-53-MC-8876 without observing the petitioner's vehicle negligently opened the front right side door and due to the impact petitioner fell on the road. At that time, driver of the lorry bearing Reg.No.KA-52-9198 by driving it in a rash and negligent manner came in the same direction, caused the accident and the front left wheel of the lorry ran over his right hand and petitioner sustained injuries as alleged by him?
2. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
3. What order or award?
8. In order to prove the case, the petitioner got examined himself as PW.1 and five witnesses as PW.2 to 6 and got marked 45 documents as per Ex.P1 to 45. On the other hand, 2nd respondent has examined four witnesses as RW.1 to 4 and got marked Ex.R1 to 6 documents. The respondent No.4 has examined one witness as RW.5 and he got marked documents at Ex.7 and 8.
9. Heard the arguments.
SCCH-21 6 MVC-448/202010. My findings on the above issues 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
11. Issue No.1: In this issue, burden is on the petitioner to prove that on 15.11.2019 at about 12.40 p.m., while petitioner was proceeding in the motor cycle bearing Reg. No.KA-42-S-1182 by riding the same, near Madhuloka Wine shop, Varthur Kodi, Bengaluru, within the limits of Whitefield Traffic police station, the driver of car bearing Reg. No.KA-53- MC-8876 without observing the petitioner's vehicle negligently opened the front right side door and due to the impact petitioner fell on the road. At that time, driver of the lorry bearing Reg.No.KA-52-9198 by driving it in a rash and negligent manner came in the same direction, caused the accident and the front left wheel of the lorry ran over his right hand and petitioner sustained injuries in the accident.
12. The petitioner in order to prove his case got examined himself as PW.1 and reiterated the averments of the petition and got marked F.I.R, F.I.S, Spot Mahazar, Sketch, IMV Report, Wound certificates, 133 notice, reply and and Charge sheet as per Ex.P1 to11 and 15. Whereas in the cross of PW.1 by respondent No.2 he has denied the suggestion that the accident has also taken place due to his rash and negligent act. Further has admitted that measurement of the road is 25 to 30 feet and the car was parked at a distance of SCCH-21 7 MVC-448/2020 around 2 feet from the left side of the mud road and he has seen the car at a distance of 10 feet and also there was enough space at least for a motor cycle to run on the left side of the road, but has reiterated that there were no parking lights. Further in the cross of respondent No.4 counsel he has admitted that he has not seen the lorry coming from his behind but has stated that the accident has taken place due to the rash and negligent act of both car and lorry.
13. Further the petitioner has also produced the medical documents as per Ex.P.16 to 29 i.e., 3 discharge summaries, photos and CD, Medical bills and also examined PW.2 doctor Nagaraj and got marked Ex.P30 and 31 i.e. Clinical report and X-ray. Also examined PW.3 Dr. R.Shashikanth and got marked Ex.P32 to 34 i.e. MLC extract, Police intimation and inpatient records, X-rays and MRI films. Further examined PW.4 Muniraju Medical record clerk of Vydehi hospital and got marked Ex.P35 and 36 i.e. authorisation letter and inpatient records. Further examined PW.5 Tukaram, Senior HR Executive of Amazon Distributors Pvt. Ltd., and got marked Ex.P37 to 40 i.e. authorisation letter, N/c. of ID card, attendance register and pay slips from September 2019 to June 2021.
14. Per contra, respondent No.2 and 4 have contested the petition by filing objection statement wherein both the respondents have specifically denied all the petition averments in toto and the respondent No.2 has contended that there is rash and negligent act on the part of driver of lorry and he is the wrong doer and he has SCCH-21 8 MVC-448/2020 contributed to the accident. Further it is contended that the owner has handed over the vehicle to the driver who did not possess valid and effective DL at the time of the accident and hence, there is violation of terms and conditions of the policy conditions.
15. Further, in support of the contention taken by the respondent No.2 in its objection statement, has examined its company representative as RW.4 and got marked Ex.R6 which is the copy of insurance policy. In his cross, he has admitted that as per IMV report front portion of their lorry is fully damaged and also the charge sheet is filed against the driver of the lorry which is not challenged by them.
16. Respondent No.4 insurance company of the lorry has filed objection to the petition and contended that the accident has occurred only due to the rash and negligent act of driver of car and the rider of the motor cycle and they have contributed to the accident.
17. Further, insurance company has examined it Deputy manager as RW.5 and got marked Ex.R7 and 8. In his cross he has admitted that accident has taken place in the night at 12.40 p.m. and also that the said spot accident is main road having divider and the lorry was coming on the right side of the car. Further, in the cross of petitioner counsel he has admitted that the charge sheet is filed against them and the same is not challenged.
SCCH-21 9 MVC-448/202018. On perusal of the oral and documentary evidence, as well as the Police documents it goes to show that on 15.11.2019 at about 12.40 p.m., while petitioner was proceeding in the motor cycle bearing Reg. No.KA-42- S-1182 by riding the same, near Madhuloka Wine shop, Varthur Kodi, Bengaluru, at that time, the driver of car bearing Reg. No.KA-53-MC-8876 without observing the petitioner's vehicle negligently opened the front right side door and due to the impact petitioner fell on the road. At that time, driver of the lorry bearing Reg.No.KA-52-9198 by driving it in a rash and negligent manner came in the same direction, caused the accident and the front left wheel of the lorry ran over his right hand and petitioner sustained injuries. Thereafter the complainant has lodged the complaint against the driver of the offending car and lorry.
19. Based on the said complaint, the Whitefield Traffic Police have registered the FIR in their P.S. Cr. No.174/19 as per Ex.P-1 on 15.11.2019 at about 12.30 p.m. and after completion of investigation, I.O. has also filed charge sheet against the driver of the car bearing Reg.No.KA-53-MC-876 and lorry No.KA-52-9198 for their rash and negligent driving at Ex.P.15. Apart from it the respondents have also not challenged the charge sheet Ex.P15 which clearly goes to show that as per the case of the petitioner the accident has taken place due to the negligence of the driver of the car bearing Reg. No. No.KA- 53-MC-876 and rash and negligence of the driver of the lorry bearing Reg. No.KA-52-9198 SCCH-21 10 MVC-448/2020
20. In this case, the counsels for respondent No.2 and 4 have argued that the accident has taken place also due to the contributory negligence of rider of motor cycle and in support of their contention have examined their representatives as RW.4 and 5 and got marked Ex.R4 to 6 but they have clearly admitted that charge sheet is filed as per Ex.P15 against the drivers of car and lorry and as such, the said document of charge sheet at Ex.P15 coupled with other oral and documentary evidence are sufficient to come to conclusion that accident has taken place due to the rash and negligent act of driver of car Reg. No. No.KA-53- MC-876 and lorry No.KA-52-9198.
The respondent No.4 counsel has relied upon the following citations:
MFA No.6330/2013(MV) c/w. MFA
No.10547/2013(MV)(M/s. Royal Sundaram
Alliance Ins. Co., Ltd., vs. Mrs. Marilyn Philip and others) MFA 6621/2008 (Bangalore Metropolitan Transport Corporation vs. H.N. Govindaraju and another) The respondent No.2 counsel has relied upon the following citations:
Copy of Notification No.119/apara CP(Traffic) 2014 dt. 16.12.2014 (2005) 6 SCC 172 (National Insurance Co., Ltd., vs. Prembai Patel and others) 2012 AIR SCW 2241(Surinder Kumar Arora and Anr. vs. Dr. Manoj Bisla and Ors) SCCH-21 11 MVC-448/2020 I have gone through the said citations relied by the respondents counsel with respect to rash and negligence of the petitioner being the rider of motor cycle but in this case as discussed it goes to show that the petitioner met with accident due to sudden opening of right side front driver door of the car and fell down on the road and thereafter the lorry ran over his right hand for which he has become permanently disabled resulting into amputation and thereafter the I.O. after investigation has filed the charge sheet on both car and lorry which has not been challenged by any of the owner or insurance company and as such with due respect to the principles of Hon'ble High Court, but there is no negligence on the side of the petitioner to make him liable for contributory negligence and as such the same cannot be made applicable to the present case in hand.
21. Hence, I am inclined to appreciate the entire oral and documentary evidence adduced by the petitioner, as the material on record clearly indicates that on the relevant date, time and place the accident has occurred due to rash and negligent driving by the driver of car Reg. No. No.KA- 53-MC-876 and lorry No.KA-52-9198 resulting into motor accident in which petitioner has sustained injuries attributing to contributory negligence for which the drivers of both the vehicles are saddled with 50:50 contributory negligence on their part for the cause of accident and accordingly, I answer issue No.1 in the affirmative.
SCCH-21 12 MVC-448/202022. ISSUE No -2: In this issue burden is on the petitioner to prove that, he is entitle for compensation as prayed.
While answering issue No.1, I have held that on the relevant date, time and place, the accident had occurred due to negligent act of the offending vehicle and as a result the petitioner has sustained injuries. Now it is to be seen that whether the petitioner is entitle for compensation? If so for how much and from whom.
Whereas injuries causes deprivation to the body which results in losses entitling claimant to claim damages. Further damages may vary according to the gravity of the injuries and the said damages are to be assessed under two heads i.e. Pecuniary and Non-pecuniary damages. Pecuniary damages are those like medical treatment, attendants, transport, actual loss of earning and future loss of earning. Non-pecuniary damages includes for mental and physical shock, pain and suffering, loss of amenities in life.
23. PAIN AND SUFFERINGS:
To prove the injuries sustained in a road traffic accident, the petitioner by name Hariprasad, S/o. Krishna Naik, examined himself as PW.1 and got marked medical documents at Ex.P7 and 8, Ex.P16 to 18, 28 and 29 which are Wound certificates, discharge summaries, photos and CD, estimation and Medical bills. As per the wound SCCH-21 13 MVC-448/2020 certificate at Ex.P.7 issued by Columbia Asia hospital the petitioner has sustained following injuries:
1. Multiple abrasions over the right chest, upper abdomen and face,
2. Displaced fracture (communited) body of right scapula,
3. Blunt injury to the abdomen, contusion of liver with degloving injury of abdomen,
4. Blunt injury to chest with lung contusions,
5. Comminuted displaced fracture lower 1/3rd of left tibia,
6. communited displaced fracture lateral aspect and other injuries.
The doctor has opined that those injuries are grievous and simple in nature.
Further petitioner has also produced Wound certificate issued by Vydehi hospital at Ex.P8 and as per the said wound certificate petitioner has sustained following injuries:
1. Foot degloving injury
2. tibia diaphyseal fracture
3. fracture of right scapula The the petitioner has also produced discharge summaries issued by Columbia Asia hospital and Vydehi hospital at Ex.P.16 to 18 and on perusal of said discharge summaries the petitioner has taken treatment from 15.11.2019 to 23.11.2019 at Columbia Asia hospital and on
24.11.2019 and 25.02.2020 to 27.02.2020 at Vydehi hospital. Hence, the petitioner has taken treatment for 13 days as inpatient in different hospitals.
SCCH-21 14 MVC-448/2020Therefore, considering the above aspects and looking into the nature of injuries sustained by the petitioner and as well the documents produced before this court it will be just and reasonable to award an amount of Rs.50,000/-. under the head pain and sufferings to the petitioner and the same is awarded accordingly.
24. LOSS OF FUTURE INCOME DUE TO DISABILITY:
AGE:
In so far as the age of the petitioner is concerned, he has mentioned his age as 30 years and on perusal of Ex.P19 Driving licence, the date of birth is mentioned as 10.07.1989 and accident occurred on 15.11.2019 and hence, considering the same, the age of the petitioner as on the date of the accident is 30 years and same is also depicts in other documents also and those assumes much importance to assess the age of the petitioner and the same if calculated on the date of accident and appropriate multiplier applicable as per (Sarla Varma and Ors. V/s Delhi Transport Corporation and Another reported in AIR 2009 Supreme Court 3104) for the persons age between 26 to 30 years is considered at 17.
AVOCATION & INCOME:
Further the petitioner has contended that at the time of the accident he was working as Key Accountant Executive at Amazon Distributors Pvt. Ltd., and earning Rs.40,000/- per month. In support of his contention he has also produced SCCH-21 15 MVC-448/2020 documents at Ex.P20 to 25 which are the appoint order, promotion letters, 6 pay slips, Axis Bank statement of account. In his cross he has admitted that the Amazon company has not removed him and also he has not hurdle to lead the evidence of their HR manager.
Further in support of his contention, petitioner has examined the Senior HR Executive Tukaram S. Uppar at Amazaon Distributors Pvt. Ltd., as PW.5 and he got marked the documents at Ex.P37 to 40 documents which are the authorization letter, ID card, Attendance letter and Pay Slips from September 2019 to June 2021 issued by the department. PW.5 has been cross examined by the respondent counsel in which he has admitted that as per the salary slip, the petitioner has received salary for the month of November 2019 and April 2020 and also the petitioner has not been removed from their company and in the promoted salary he was getting around 11,817/-. further, on recall by petitioner counsel he was again reexamined and got marked Ex.P43 resignation letter dated 06.07.2022 by the petitioner and Ex.P44 termination letter of petitioner dated 08.07.2022. In his further cross he has admitted that the petitioner is having Provident fund and also the said amount is paid to him and in the muster register it is mentioned the number of workers employed and working in their factory and also the left out workers is mentioned in the said register but has not produced the said document. Apart from it, he has also stated that as there was amputation of right hand of the petitioner he has left the company and already there is final settlement made by the company but not produced the said document.SCCH-21 16 MVC-448/2020
Hence, on perusal of the evidence of PW.1 and PW.5 along with cross examination and the documents at Ex.P20 to
25 appointment and promotion letter, pay slips goes to show that petitioner was working in the said company and getting salary of Rs.29,991/- in the month of October 2019 and also in the document of Ex.P25 account statement clearly shows the said salary has been credited to his account. Further in support of the same he has led the evidence of company HR and got marked Ex.P37 40, 43 and 44 in which he has clearly that the petitioner was working as key account executive and was paid salary of Rs.29,991/- in the month of October 2019. Where as it is the contention of the respondent No.2 and 4 counsel that the petitioner has not been terminated and still working in their company and the same is admitted by PW.5 in his cross examination, but it also goes to show that the said witness has been re-examined by the petitioner counsel and got marked Ex.P43 resignation letter and 44 termination letter by their company in which it clearly shows that during the pendency of this petition on 06.07.2022 the petitioner has resigned from the job and also he has been released by the company and further PW.5 in his cross has reiterated that due to amputation of right hand the petitioner has left the company. Hence even though Respondent No. and 5 counsel have contended that the petitioner has not been removed from the service and still working in the company for which he is not entitled for loss of future income, but in view of the further evidence of PW.5 and the document at Ex.P43 resignation letter and Ex.P44 termination letter and also considering the evidence of PW.5 that due to amputation of right hand, the SCCH-21 17 MVC-448/2020 petitioner has left the job and further considering the avocation of the petitioner as key account executive it can be held that due to the amputation of his right hand he has left the job for which he is not able to earn in future and as such considering the said aspect I am of the opinion that the petitioner is entitled for loss of future income and also has proved he was getting salary of Rs.29,991/- in the month of October 2019 at the time of accident and the same is rounded off to Rs. 30,000/-. Hence, looking into the nature of injuries as well as the age of the petitioner as 48 years showing his occupation as key account executive the income of the petitioner is considered as ₹30,000/- it will meet the ends of justice.
DISABILITY:
The petitioner examined himself as PW.1 and produced the medical documents at Ex.P7,8,16 to 18, 26 and 29 and he has also contended that he has sustained crush injuries to right upper limb with vascular compromise, crush injury to left lower limb, degloving injury involving thorax and abdomen, fracture of left tibia, laceration of liver and other injuries which are grievous and simple in nature and the said injuries are also depicts in the medical documents produced by the petitioner. Further petitioner has contended that due to the said accidental injuries he has become permanently disabled person.
In support of his contention petitioner has examined the doctor as PW.2 Dr. Nagaraj and being non-treated doctor has deposed that petitioner has sustained crush injury right upper limb with vascular compromise and crush injury SCCH-21 18 MVC-448/2020 left lower lib degloving injury thorax and abdomen with fracture of the left tibia and stated that the said injuries are grievous injuries and due to the said injuries petitioner has become permanently disabled person and he has assessed permanent physical disability to left lower limb to an extent of 39%, elbow amputation of the right upper limb at 90% and whole body disability of both upper and lower limb at 59%. Whereas PW.2 in his cross has admitted that, there are 2 discharge summary cards of the petitioner and while assessing the disability he has considered both the summary card and he has admitted that while assessing disability, he has not mentioned how much portion of stump is remaining in the right hand portion and also that the petitioner's thigh and waist in normal condition. Further he admitted that while assessing disability of locomotive they have to apply formula and also admitted that the cost of the artificial limb will start from Rs. 10,000/-.
Petitioner has also examined Dr.R.Shashikanth as PW.3 and he got marked the documents at Ex.P32 to 34 and Mr.Muniraju B.V. at Ex.P4 and he got marked the documents at Ex.P35 and 36.
Under these circumstances the disability assessed by PW.2 will have to be carefully scrutinized. In this regard, I would like to rely upon decision of Hon'ble Apex Court reported in Rajkumar Vs Ajaykumar & another in 2011 ACJ 1, wherein it is clearly laid down that at the time of assessing the physical disability the loss of future earning capacity on account of such disability is something which has to be SCCH-21 19 MVC-448/2020 necessarily proved by the injured by himself with other cogent evidence which would, in turn dependent upon other facts such as nature of injuries sustained, nature of treatment, quantum of disability and more importantly the nature of avocation of the injured. The Hon'ble Apex Court had further held that the doctor has necessarily stated about the nature of disablement, whether it is of permanent nature, or a temporary disablement or a partial permanent disablement and the extent of mobility and stability component.
However, PW.2 has assessed functional permanent physical disability with respect to left lower limb to an extent of 39%, elbow amputation of the right upper limb at 90% and whole body disability of both upper and lower limb at 59% by observing that petitioner complains of pain of unable to carry out his profession as marketing executive, unable to walk normally, unable to sit down, sit cross legged and squat. Whereas if disability leads to any restriction or lack of ability to perform an activity in the manner considered normal for human being and the said permanent disability refers to the residuary in capacity or loss of use of some part of body, found existing at the end of period of treatment. After achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured, then such injuries sustained in motor accident can be considered as permanent disability for the purpose of claiming compensation. However, it is also settled principle of law that different parts of body have different percentage of disability and loss of future income SCCH-21 20 MVC-448/2020 would depend upon the fact and impact of such permanent disability on his earning capacity.
Thus, considering the injuries sustained by the petitioner and the disability assessed by PW.2 who is non-treated Doctor and also he has admitted in his cross-examination that he has only assessed disability and not given treatment to the petitioner, the total extent of disability to the whole body and looking at the disability assessed by non-treated doctor towards the left lower limb to an extent of 39%, elbow amputation of the right upper limb at 90% and whole body disability of both upper and lower limb at 59% and the said disability is permanent in nature and the said pain of the disability will be throughout the life of the injured person which will effect his health and avocation. As such considering the above aspects of crush injury resulting in elbow amputation of right hand and disability to left lower limb and the avocation of the petitioner shown as Key Account Executive and by considering the age of the petitioner as 30 years and looking into the disability assessed by the non- treated doctor to whole body @59%. Further as per the schedule - I of workman compensation act resulting into permanent partial disablement of loss of hand is considered at 70% is considered and as such in this case also even though PW.2 is a non-treated doctor, but considering the disability of amputation of right hand and the disability towards the left lower limb along with his avocation as key accountant executive the permanent disability of 59% as assessed by the PW.2 it will meet the ends of justice.SCCH-21 21 MVC-448/2020
The petitioner counsel has relied upon the following citations:
MFA 811/2015 (Rajanna @ Raju vs. Srinivas and others) 2020 ACJ 2695 (Pappu Deo Yadav vs. Naresh Kumar and others) 2020 ACJ 2152 (Harpreet Singh and others) 2020 ACJ 2108 2018 ACJ 2794 (Royal Sundaram Alliance Ins. Co., Ltd., vs. Dhanabagyam and others) 2021 ACJ 1284(Irshad Hassan vs. Shriram General Ins. Co., Ltd.,) I have gone through the said citation relied by the petitioner counsel to consider the permanent disability for amputation of right hand as 100% even though the disability certificate is issued by non-treated doctor and with due respect to the principle of the Hon'ble Apex court and respective High Courts it goes to show that in this case there is amputation of right hand of the petitioner and he was working as key executive account and he resigned from the job after the accident and also as discussed I have considered the entire disability of 59% as permanent functional disability for amputation even though the disability certificate is issued by non-treated doctor and as such with due respect to the principles of the citations relied by petitioner counsel, the same ratio has been considered by this court while considering the disability and the loss of future income and also the same are aptly made applicable to the present case in hand.
The respondent No.2 has relied upon the following citations:SCCH-21 22 MVC-448/2020
ILR 2000 KAR 3443 (United India Ins. Co., Ltd., vs. D.C. Rajanna & another) ILR 2010 KAR 2439 (Sri. Subash vs. The New India Assurance Co., Ltd., Rep. by its Manager and others) I have gone through the citations relied by the respondent No.2 counsel to consider the loss of future income wherein it is held that if the injured is continued in service then he is not entitled for loss of future income, but in this case as discussed it is held that petitioner has proved by leading further evidence of PW.4 and also has produced the document at Ex.P43 and 44 which are the resignation letter and relieve of petitioner from the company which shows that the petitioner has not continued his service for which he is not able to get the salary and as such for loss of the pay he is entitled for loss of future income and as such with due respect to the principles of the said citations, but as discussed the same cannot be made applicable to the present case in hand.
In so far as the loss of future income and all these aspects clearly goes to show that the petitioner is entitled for loss of future income.
Hence the loss of future income will be as follows:-
₹,30,000 x 12 = Rs. 3,60,000/- p.a. Hence, ₹3,60,000/- x 59/100 x 17 = 36,10,800/-SCCH-21 23 MVC-448/2020
21. MEDICAL EXPENSES:-
Petitioner in his petition and also in his evidence has deposed that he has incurred more than Rs.20,00,000/- towards the medical expenses. To prove his contention he has produced medical bills amounting to Rs.15,40,473/- at Ex.P.29 and on perusal of the same it appears that in the out inpatient bill of Columbia Asia hospital amounting to Rs.9,45,941/- petitioner has received discount of Rs.78,922/- and also there is reimbursement of Rs.2,18,137/- by Star Health Insurance Co., as per the document produced by the respondent at Ex.R1 to 3 the total expenditure will be Rs.6,48,482/-. Further the petitioner has spent an amount of Rs.3,25,108/- at Vydehi hospital and Rs.4,19,825/- is spent for total medicial bills. Hence, the total of the said medical bills will be Rs.13,93,415/- out of which an amount of Rs.3,50,000/- is also reimbursed as stated by RW.2 and the same is mentioned in the document at Ex.R2 which is deposited in Columbia hospital by Amazon Distributors Pvt. Ltd., where the petitioner was working and after deducting the same the total medical bills will be Rs.10,43,415/-. Further on perusal of bills in Sl. No.16, 25, 35, 36, 45, 52, 54, 55, 56, 57, 77, 78, 79, 94, 99, 120 it goes to show that the said bills are already included in the inpatient bill of Vydehi hospital totally amounting to Rs.16,106/- and hence the same has to be deducted in the final bill. Hence by considering all the said documents of medical bills and after deducting the Rs.16,106/-, I am of the opinion that petitioner has incurred medical expenses of Rs.10,77,309/-. Hence, it is just and SCCH-21 24 MVC-448/2020 necessary to award a sum of Rs.10,77,309/- under this head of medical expenses.
22. CONVEYANCE, FOOD AND NOURISHMENT, ATTENDANT CHARGES AND OTHER INCIDENTAL EXPENSES.:-
Petitioner has stated that he has taken treatment in the hospital as inpatient and to prove the same he has produced Inpatient bills of Columbia Asia hospital and Vydehi hospital at Ex.P.16 to 18 and on perusal of said discharge summaries the petitioner has taken treatment from 15.11.2019 to 23.11.2019 at Columbia Asia hospital and on 24.11.2019 and 25.02.2020 to 27.02.2020 at Vydehi hospital. Considering those documents produced by the petitioner in all he has taken treatment for about 13 days as inpatient and in the said period of treatment necessarily one person should have attended them in the hospital. Thus looking at the injuries sustained by the petitioner and the document produced by him and with regard the age of the petitioner an amount of Rs.1,000/- per day can be considered as appropriate amount towards the head of attendant charges, food and conveyance during their stay in the hospital. Hence totally PW.1 is entitled for ₹13,000/- (₹1,000 X 13) towards attendant charges, food and conveyance.
23. LOSS OF INCOME DURING THE PERIOD OF TREATMENT:-
On perusal of the medical documents it goes to show that petitioner has sustained fracture injuries and he had taken treatment for about 1 3 days as inpatient in the hospital and the petitioner would have lost his income for a SCCH-21 25 MVC-448/2020 period of at least 6 month. Such being the fact, the loss of income during the said period has also to be compensated to the petitioner and while discussing above, monthly income of ₹30,000/- per month is considered and for 6 months under this head petitioner is entitled for ₹1,80,000/- towards loss of income during the period of treatment.
24. LOSS OF AMENITIES IN LIFE/LIFE COMFORTS AND EXPECTANCY OF LIFE/MARRIAGE PROSPECTUS:
The petitioner has deposed that he is aged 30 years and also as per Adhaar card his age is 30 years at the time accident and on account of accident, he has to suffer the above disability. He has to suffer this discomfort and sacrifice the amenities through out his remaining life. The petitioner has examined the doctor as PW.2 and he has assessed disability of left lower limb to an extent of 39%, elbow amputation of the right upper limb at 90% and whole body disability of both upper and lower limb at 59% and also this court has considered the said disability @59% to the whole body. PW.2 has stated that due to the accidental injuries, the petitioner has difficulty to carryout his profession as marketing executive, unable to walk normally, unable to sit down, unable to sit cross legged and squat. Further petitioner also has undergone elbow amputation of the right upper limb, deformed right leg, reduced ankle and knee movements in the left lower limp and has difficulty in doing routine activity. Considering all these aspects, I deem it proper to award Rs.50,000/- on this head.SCCH-21 26 MVC-448/2020
25. FUTURE MEDICAL EXPENSES:
The doctor has deposed that the petitioner needs prosthesis for the right upper limb and the cost of same varies from Rupees four lakhs to Rupees ten lakhs as per the requirement. The petitioner has produced estimation at Ex.P28 for an amount of Rs.35,05,110/- and also has led the evidence of PW.6. In his cross he has admitted that whenever the patient comes to buy artificial limb he will not take the opinion of the doctor and the estimation will be in force for a period of one month and also that he has not mentioned the cost of maintenance and not produced any document to show that he has personally examined the petitioner. Therefore, considering the evidence available before this court, even though the petitioner has produced Ex.P28 showing estimation cost of Rs.35,05,110/- for the amputation of his right hand and also led the evidence of PW.6, but considering the nature of injuries and the amputation of right hand of the petitioner and his avocation as Key accounts executive, if an amount of Rs.2,00,000/- is awarded for future medical expenses will meet the ends of justice. Hence, the petitioner is entitled for future medical expenses of Rs.2,00,000/-.
26. Thus the petitioner is entitled for the compensation under the following permissible heads:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 50,000.00
2. Loss of future income due to Rs. 36,10,800.00
disability
SCCH-21 27 MVC-448/2020
3. Medical expenses Rs. Rs.10,77,309.00
4. Conveyance, food and Rs. 13,000.00
nourishment, attendant
charges and other incidental
expenses.
5. Loss of income during laid up Rs. 1,80,000.00
period
6. Loss of amenities in life/Life Rs. 50,000.00
comforts and expectancy of
life/Marriage prospectus
7. Future Medical expenses Rs. 2,00,000.00
Total Rs. 51,81,109.00
Hence, I come to the conclusion that in all the petitioner is entitled for compensation of ₹.51,81,109/- (Fifty one lakhs eighty one thousand one hundred and nine only).
27. Interest:
The petitioner is claiming interest @ 9% per annum on the compensation amount. The respondents have denied the same. Our Hon'ble High Court in the case rendered in Vijay Ishwar Jadhav and others Vs Ulrich Belchior Fernandes and another (MFA.No.100090/2014 C/W MFA.No.25107/2013 dated 07.03.2018), has held that in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Sec.34 of C.P.C and awarded interest @ 6% per annum. Considering the aforesaid decision, I deem it proper to award interest at 6% per annum on the above compensation amount excluding the future medical expenses of Rs.2,00,000/-.SCCH-21 28 MVC-448/2020
28. LIABILITY :-
In this case respondent No.1 and 2 are the owner and insurer of the offending car bearing Reg.No.KA-53-MC-8876 respectively and respondents No.3 and 4 are the owner and insurer of lorry bearing Reg. No.KA-52-9198. After issuance of notice respondents No.1,2 and 4 have appeared through their respective counsels and have filed objection statement. Respondent No.2 and 4 insurance companies have seriously disputed their liability by contending various grounds and to prove those contentions, the authorized officers of their company are examined as RW.4 and 5 and got marked the documents at Ex.R6 and 8 insurance policies. On perusal of the said document at Ex.R4 insurance policy of car No.KA53- MC-8876 is in force from 10.12.2018 to 09.12.2019 and as per Ex.R8 the said policy is in force from 29.11.2018 to 28.11.2019 and the accident has occurred on 15.11.2019 which clearly shows that both the vehicles are duly insured and are in force on the date of accident. Further, in order to prove that there violation of policy condition, no evidence has been adduced before this court. Hence, from the evidence available on record it can be held that the policies are in force for which insurance companies are liable to indemnify the owners. As already discussed at issue No.1, both the vehicles have contributed for happening of accident towards contributory negligence at 50:50. Hence, 2nd and 4th respondents being the insurers and 1 st and 3rd respondents being the owners of the offending vehicles are jointly and severally liable to pay the compensation of their respective liability of 50:50 each. However, the 2 nd and 4th respondents being the insurers shall indemnify the 1 st and SCCH-21 29 MVC-448/2020 3rd respondents in payment of compensation amount to the petitioner. Accordingly, I answer Issue No.2 Partly in the Affirmative.
29. ISSUE No.3:- As per discussion, I proceed to pass the following;
OR D E R The petition is allowed in part with cost.
The petitioner is entitled for compensation of ₹.51,81,109/-(Fifty one lakhs eighty one thousand one hundred and nine only) with interest at the rate of 6% per annum on ₹.49,81,109/-(excluding future medical expenses of Rs.2,00,000/-) from the date of petition till its realization.
The respondents No.1 and 3 being the owners and the respondents No.2 and 4 being the insurers of the offending vehicles are liable to pay the compensation. The liability to pay the compensation is joint and several between the respondents. Hence, respondent No.2 and 4 being the insurers shall indemnify the respondent No.1 and 3 of their respective liability of 50:50 each and shall deposit the compensation amount within 60 days from the date of this order.
After deposit, 50% of the amount is ordered to be deposit in the name of the petitioner in any Nationalized Bank for a period of 3 years with liberty to draw the periodical interest and remaining amount is order to be released in favour of petitioner through RTGS/NEFT on proper identification and after collecting copy of bank pass SCCH-21 30 MVC-448/2020 book having photograph of the petitioner duly attested by the banker and self attested Aadhar card and Pan card of the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, typed by her, signed and then pronounced by me in the open court dated this the 17th day of January, 2023) (RAJESH M. KAMATE) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.
ANNEXURES Witnesses examined on behalf of the petitioner:
P.W.1 : Hariprasad P.W.2 : Dr. Nagaraj B.N. P.W.3 : Dr. R.Shashikanth P.W.4 : Muniraju B.V. P.W.5 : Tukaram S. Uppar P.W.6 : Balakrishna
Documents marked on behalf of the petitioner:
Ex.P.1 FIR Ex.P.2 FIS Ex.P.3 Witness statement Ex.P.4 Spot Mahazar Ex.P.5 Sketch Ex.P.6 IMV Report Ex.P.7 & 8 Wound certificates Ex.P.9 & 10 Notices u/s.133 of MV Act Ex.P.11 & 12 Replies SCCH-21 31 MVC-448/2020 Ex.P.13 & 14 Indemnity bonds Ex.P.15 Charge Sheet Ex.P.16 to 18 Discharge summaries Ex.P.19 N/c. of DL Ex.P.20 Appointment order Ex.P.21 to 23 Promotion letters Ex.P.24 Pay slips Ex.P.25 Axis bank statement Ex.P.26 & Photos and CD 26(a) Ex.P.27 Ottobock Co., letter Ex.P.28 Estimation Ex.P.29 Medical bills of Rs.15,40,473/- Ex.P.30 Clinical report Ex.P.31 X-ray Ex.P.32 MLC extract Ex.P.33 Police intimation Ex.P.34 Inpatient record, X-ray, MRI Ex.P.35 Authorisation letter Ex.P.36 Inpatient record Ex.P.37 Authorisation letter Ex.P.38 N/c. of ID card Ex.P.39 Attendance register Ex.P.40 Pay slips from September 2019 to June 2021 Ex.P.41 Authorisation letter Ex.P.42 N/c. of ID Card Ex.P.43 Resignation letter Ex.P.44 Relieving letter
Witnesses examined on behalf of the respondents:
RW.1 : Dr. Prakash
SCCH-21 32 MVC-448/2020
RW.2 : Shahid Parvez
RW.3 : Dr. R.Shashikanth
RW.4 : Suresh Gukanti
RW.5 : Chandrashekaraiah
Documents marked on behalf of the respondents:
Ex.R.1 Inpatient bill
Ex.R.2 Inpatient bill breakup
Ex.R.3 Inpatient bill payment receipts
Ex.R.4 MLC extract
Ex.R.5 Police intimation
Ex.R.6 Insurance policy
Ex.R.7 Authorisation letter
Ex.R.8 Insurance policy
(RAJESH M. KAMATE)
XVII Addl. Judge, Court of Small
Causes & Member MACT,
Mayo Hall Unit, Bengaluru.
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