Bangalore District Court
Rohini Patel vs Vivekananda on 22 February, 2025
SCCH-14 1 MVC.1894/2022 & 1895/2022
KABC020114312022
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH-14
Dated : This the 22nd day of February, 2025
Present : SRI. D.RAMESH,
B.A.L., LL.B.,
MEMBER, MACT,
XVI ADDL. JUDGE,
COURT OF SMALL CAUSES,
BENGALURU.
MVC No.1894/2022 C/W MVC No.1895/2022
Petitioner : In Sri. Bathmanathan P.
MVC.1894/2022 S/o Prabhakaran
Aged about 23 years,
R/a. No.37, Kovilpatti Road,
Pudukottai,
Pudukottai Taluk,
Tamilnadu-622002.
Petitioner : Smt. Rohini Patel
In W/o Manish Kumar
MVC.1895/2022 Aged about 34 years,
R/at. No.262, Ward No.4,
Murari ka Bagicha
Yadav Colony, Sagar
SCCH-14 2 MVC.1894/2022 & 1895/2022
Sagar Cantt.,
Madhya Pradesh-470001.
(By pleader Smt. K.B.Roopa)
V/s
1. Sri Vivekananda
Respondent/s S/o. Sharanabasappa Nenga,
In both the cases Ward No.2, Kolkur,
Kolkur Taluk,
Jewaragi Gulbarga,
Karnataka-585310.
(Exparte)
2. The Manager
Sriram Gen. Ins.Co.Ltd.,
No.5/4, 3rd Floor,
SV Arcade,
Bilekahalli Main Road,
Opp: Bannerghtta Road,
I.I.M.B. Post,
Bengaluru-560 076.
Policy No.418012/31/22/000431
Validity:12.10.2021 to 27.07.2022
(By pleader Sri.S.R.Murthy)
:JUDGMENT:
The Petitioners in M.V.C.No.1894/2022 and MVC.1895/2022 have filed the Petitions against the Respondents under Section 166 of the Motor Vehicles Act SCCH-14 3 MVC.1894/2022 & 1895/2022 seeking Compensation of Rs.40,00,000/- and Rs.30,00,000/- respectively for the injuries sustained by them in a Road Traffic accident.
2. Since both the Petitions arises out of the same accident and both were clubbed together and taken for common disposal.
3. The substance of averments made in the Petition in MVC.1894/2022 are as under:
That on 12.12.2021 at about 11.00 p.m., when the petitioner was standing on the left side of the road near Veerasandra junction, Hosur Main road, at that time, the driver of Car bearing Reg. No.KA-04-AB-5898 came from Hebbagodi towards electronic city with high speed and in a rash and negligent manner and due to excessive speed he lost control over his vehicle and dashed the petitioner. Due to impact of the accident, the petitioner sustained grievous injuries.
Immediately after the accident, Petitioner was shifted to Kauvery Hospital, wherein he took treatment as an inpatient for SCCH-14 4 MVC.1894/2022 & 1895/2022 10 days.
4. Prior to the date of accident, the Petitioner was hale and healthy and he was doing catering business and was earning Rs.25,000/- per month.
5. The substance of averments made in the Petition in MVC.1895/2022 are as under:
That on 12.12.2021 at about 11.00 p.m., when the petitioner was proceeding as an inmate in a Car bearing Reg.
No.KA-03-NF-3729 along with her husband and son and they reached near Veerasandra Junction, Hosur Main road, at that time, the driver of Car bearing Reg. No.KA-04-AB-5898 came from Hebbagodi towards electronic city with high speed and in a rash and negligent manner and due to excessive speed he lost control over his vehicle and dashed the petitioner's car. Due to impact of the accident, the petitioner sustained grievous injuries.
Immediately after the accident, Petitioner was shifted to Kauvery Hospital, wherein she took treatment as an inpatient SCCH-14 5 MVC.1894/2022 & 1895/2022 for 10 days and underwent surgery.
6. Prior to the date of accident, the Petitioner was hale and healthy and she was working as a Tailor and was earning Rs.20,000/- per month. Due to the accident, both the petitioners have sustained grievous injuries causing permanent disablement.
7. The Petitioners in both the Petitions have contended that the accident has taken place solely due to the rash and negligent driving of the driver of Car bearing Reg.No.KA-04-AB- 5898. As such, the Respondent No.1 is the owner and respondent No.2 is the Insurer of offending vehicle are jointly and severally liable to pay the compensation to the Petitioners.
8. In pursuance of service of notice, the Respondent No.2 appeared before the court through its counsel and filed objections to the main petition. Respondent No.1 remained absent, hence he was placed exparte.
Respondent No.2 in its Objection Statement denied the age, avocation and income of the Petitioners and also denied SCCH-14 6 MVC.1894/2022 & 1895/2022 the accident caused by the rash and negligent driving of the driver of the offending Car. Further, it admits the issuance of insurance policy to the offending Car bearing No.KA-04-AB- 5898. Further it contended that owner of the insured car has not intimated the alleged accident to this respondent and there is violation of Section 134(c) and 158(6) of Motor Vehicles Act. Further it contended that the first respondent has violated the terms and conditions of the policy and provision of the Motor Vehicles Act by driving his car without possessing valid and effective DL, permit and FC at the time of accident. Further contended that as per the charge sheet the driver cum owner of the offending car had drove his car under the influence of alcohol, hence this respondent is not liable to pay compensation. Further it contended that no actionable negligence can be attributed against the driver of Car bearing Reg. No.KA-04-AB-5898 and the driver of car bearing Reg. No.KA-03-NF-3729 was solely responsible for the accident. On these grounds, Respondent No.2 has prayed to dismiss the SCCH-14 7 MVC.1894/2022 & 1895/2022 petition against it.
9. On the rival pleadings, my Learned Predecessor in office has framed following Issues.
ISSUES IN MVC No.1894/2022
1. Whether the Petitioner proves that he had sustained grievous injuries in a Road Traffic Accident that occurred on 12.12.2021 at about 11.00 pm., near Veerasandra junction, Hosur Main Road, Bengaluru, due to rash and negligent driving of the driver of Car bearing Reg.
No.KA-04-AB-5898?
2. Whether the petitioner is entitled for compensation as prayed for? If yes, what is the quantum and who is liable to pay?
3. What Order or Award ?
ISSUES IN MVC No.1895/2022
1. Whether the Petitioner proves that she had sustained grievous injuries in a Road Traffic Accident that occurred on 12.12.2021 at about 11.00 pm., near SCCH-14 8 MVC.1894/2022 & 1895/2022 Veerasandra junction, Hosur Main Road, Bengaluru, due to rash and negligent driving of the driver of Car bearing Reg.
No.KA-04-AB-5898?
2. Whether the petitioner is entitled for compensation as prayed for? If yes, what is the quantum and who is liable to pay?
3. What Order or Award ?
10. In order to prove the case of the Petitioners, the Petitioner in MVC.1894/2022 got examined himself as P.W.1 and got marked documents as per Ex.P-1 to Ex.P-16, Ex.P.30 and Ex.P.31. Petitioner in MVC.1895/2022 got examined herself as P.W.2 and got marked documents as per Ex.P-17 to Ex.P-23. Petitioner in MVC.1895/2022 got examined Dr.S. Ramachandra as P.W.3 and got marked documents as per Ex.P-24 and Ex.P-25. Petitioner in MVC.1895/2022 got examined Medical record officer namely Manikanta N., as P.W.4 and got marked documents as per Ex.P-26 to 29. Petitioner in MVC.1894/2022 got examined Dr.Veeresha U Mathad as P.W.5 SCCH-14 9 MVC.1894/2022 & 1895/2022 and got marked documents as per Ex.P-32 to Ex.P-36. On the other hand, the Respondent No.2 got examined ASI, Electronic City Traffic Police Station as RW.1 and got marked documents as per Ex.R.1 to 23 and examined its Legal Executive as RW.2 and got marked documents as per Ex.R.24 and 25 and closed its side evidence.
11. I have heard the arguments of the learned Counsel for the Petitioners and perused the written arguments of the learned Counsel for the Respondent No.2, the depositions, documents exhibited and materials available on record.
12. My answer to the Issues in MVC.1894/2022 are as under :
Issue No. 1 : In the Affirmative
Issue No.2 : Partly in the Affirmative.
Issue No.3 : As per the Final Order,
for the following :
13. My answer to the Issues in MVC No.1895/2022 are as under :
Issue No. 1 : In the Affirmative
Issue No.2 : Partly in the Affirmative.
SCCH-14 10 MVC.1894/2022 & 1895/2022
Issue No.3 in : As per the Final Order,
for the following :
REASONS
14. Issues No.1 in MVC.1894/2022 and MVC
1895/2022:- It is the case of the Petitioners that they sustained injuries in the accident caused by the driver of the offending Car bearing No.KA-04-AB-5898. On the other hand, the Respondent No.2 has denied the accident caused by the rash and negligent driving of the driver of the offending Car.
15. In order to prove the case of the petitioners, Petitioners in both the cases have been examined as P.W.1 and P.W.2 and they have also examined witnesses as PW.3 to 5. They got marked 36 documents in total. Ex.P-1 to Ex.P-6 are the True copies of FIR, Complaint, statement, Spot Mahazar with Spot sketch, Charge sheet, IMV report and wound certificate.
16. Upon going through the said documents, it shows that based on the Ex.P.1 and 2 FIR and Complaint, the case SCCH-14 11 MVC.1894/2022 & 1895/2022 was registered against the driver of the offending Car bearing No.KA-04-AB-5898 for the offences punishable under Sections 279, 337, 338 of IPC and under Sec.177, 185 of IMV Act. Ex.P.3 is the statement of victim/petitioner which shows that petitioner in MVC No.1894/2022 has given statement before the police about the accident. Ex.P-4 is the Spot Mahazar with sketch, which show that the concerned police had drawn the Spot Panchanama and prepared the sketch at the spot in the presence of panchas. As per the sketch the accident has been taken place at the junction. Ex.P5 is the True copy of Charge- sheet shows that the driver of Car bearing No.KA-04-AB-5898 was charge sheeted for the offences punishable under Sections 279, 337, 338 of IPC and under Sec.177, 185 of IMV Act. Ex.P6 is the IMV report which shows that the accident was not due to any mechanical defects of both the motor vehicles. It further shows that the offending car bearing No.KA-04-AB-5898 was damaged on its front portion and the car bearing No.KA-03-NF- 3729 was damaged on its front and left side. These damages SCCH-14 12 MVC.1894/2022 & 1895/2022 made it clear that while the car bearing KA-03-NF-3729 taking 'U' turn the driver of the offending car had dashed against the left side of the car bearing KA-03-NF-3729. It justifies the manner of accident as narrated by the petitioners. Ex.P.7 is the Wound Certificate of the Petitioner in MVC.1894/2022, it shows that he had sustained simple as well as grievous injuries. Ex.P.8 is the Discharge summary of petitioner in MVC 1894/2022, Ex.P.9 is the Medical bills, Ex.P.10 is the Physiotherapy bill, Ex.P.11 is the photos, Ex.P.12 is the CD, Ex.P.13 to 16 are the notarized copy of Aadhar card, PAN card, SSLC Marks card and BSc. Degree certificate of petitioner in MVC 1894/2022, Ex.P.30 is the E-Mail document and Ex.P.31 is the Certificate.
17. Ex.P-17 is the Wound Certificate of petitioner in MVC.1895/2022, it shows that she had sustained grievous injuries. Ex.P.18 and 19 are the Discharge summaries. Ex.P.20 is the Medical bills. Ex.P.21 is the Physiotherapy bill. Ex.P.22 is the Advance bill. Ex.P.23 is the Notarized copy of Aadhar card SCCH-14 13 MVC.1894/2022 & 1895/2022 of petitioner in MVC.1895/2022.
18. Further, the petitioner in MVC.1895/2022 examined Dr. S. Ramachandra as P.W.3 and he got marked documents at Ex.P.24 and 25 i.e., Out patient slip and clinical notes and X- ray and also examined Medical record Officer Manikanta N., as PW.4 and he got marked documents at Ex.P.26 to 29 i.e., Authorization letter, police intimation, MLC register Extract and In-patient record. PW.3 doctor deposed about the injuries sustained by the petitioner in MVC 1895/2022 and the treatment taken by her and he assessed the disabilities. Further, the petitioner in MVC.1894/2022 examined Dr. Veeresha U Mathad as P.W.5 and he got marked documents at Ex.P.32 to 36 i.e., Clinical notes, MRI report, X-ray report, X- ray film and MRI films. PW.4 doctor deposed about the injuries sustained by the petitioner in MVC 1894/2022 and the treatment taken by him and he assessed the disabilities.
19. To rebut the evidence of P.W.1 to P.W.5, the Learned Counsel for Respondent No.2 has cross examined the P.W.1 to SCCH-14 14 MVC.1894/2022 & 1895/2022 PW.5 at length. The PW.3 to 5 have deposed about disabilities of petitioner and the treatment taken by them. Their evidence is not pertaining to the negligence of the driver of the offending vehicle. For consideration of the negligence of the driver, the evidence of PW.1 and 2 is to be looked into. In the cross- examination, PW.1 has admitted that at the time of accident he was crossing the road at the zebra cross. Further admitted that as per the Sketch which he has produced, there is no mention about the zebra cross at the place of accident. But he specifically says that there was Zebra cross at the place of accident. He has denied the other suggestions of learned counsel for respondent No.2.
20. PW.2 in her cross-examination she specifically denies that there was head on collision between two cars. She further says that since there was green signal to them, they were taking 'U' turn and the driver of the offending car though he had red signal, he jumped the red signal and hit their car.
21. The learned counsel for Respondent No.2 in his SCCH-14 15 MVC.1894/2022 & 1895/2022 Written Arguments stated that the petitioner in MVC 1894/2022 was crossing road without following traffic rules where there was no zebra crossing, due to negligent act of the petitioner the accident took place, hence, no actionable negligence can be attributed against the driver of offending Car. A careful perusal of the police documents, they show that while the petitioner in MVC 1894/2022 was crossing the road, the driver of the offending car drove the same with high speed and in a rash and negligent manner by jumping the signal and hit against the petitioner in MVC 1894/2020 who was crossing the road where Zebra crossing was there and also dashed against the car of petitioner in MVC 1895/2022, which was taking 'U' turn. The Mahazar and sketch, do not show about zebra cross at the spot. But, the accident spot is shown as it is two way main road having three lanes and service road and there was traffic signal point at the spot. Hence, it could be presumed that where traffic signal will be provided, there will be provision for crossing the pedestrian. Even in the cross examination of PW.1 SCCH-14 16 MVC.1894/2022 & 1895/2022 clearly denies that there was no zebra cross in the road. No doubt that pedestrian has to cross the road meant for pedestrian cross. In this case, as discussed above, the PW.1 has specifically denies that there was no zebra cross at the place of accident. The Respondents have not produced any documents to show that there was no pedestrian crossing at the spot of accident. Photograph of the accident spot has not been produced by either of these parties. Though the Respondent No.2 has examined the IO as RW.1 no question was posed about the Zebra cross at the spot. Thus, this Tribunal opines that there was pedestrian crossing at the accident spot and the petitioner in MVC 1894/2022 was crossing the road where pedestrians were permitted to cross the road.
22. The oral and documentary evidence and the materials available on record, clearly show that while the petitioner in MVC 1894/2022 was crossing the road on Zebra lines and petitioner in MVC 1895/2022 was proceeding in car bearing No.KA-03-NF-3729 as inmate, by that time the driver of the SCCH-14 17 MVC.1894/2022 & 1895/2022 offending car bearing No.KA-04-AB-5898 drove the car in rash and negligent manner though he had red signal by violating the traffic rules and dashed against the petitioner in MVC 1894/2022 and car of petitioner in MVC 1895/2022. Due to said accident the petitioners in both the cases sustained grievous injuries in the nature of permanent disablement. Accordingly, I answer Issue No.1 in MVC.No.1894/2022 and MVC No.1895/2022 in the "Affirmative".
23. Issue No.2 in MVC.1894/2022 (Batmanathan P.) :-
As the Petitioner has proved that the accident has occurred due to the rash and negligent driving of the driver of offending Car by its driver, the Petitioner is entitled for compensation.
24. In the Petition, the Petitioner has shown his age as 23 years. The Petitioner has produced Aadhar card, PAN card and SSLC Marks car at Ex.P.13 to 15 to prove his age. As per the said documents, the date of birth of the petitioner is shown as 17.04.1999. The accident took place on 12.12.2021. Hence, the age of the petitioner is 22 years which is to be taken for the SCCH-14 18 MVC.1894/2022 & 1895/2022 purpose of assessment.
25. Further, the Petitioner has averred that he was doing catering business and was earning Rs.25,000/- per month. In this regard, he has produced the offer letter at Ex.P.30 issued by the Himanchli, Human Resource Manager. But, he has not examined the employer to prove the said document. Hence it can not be considerable. Therefore, in the absence of any evidence, this Court is of the opinion that, the notional income to be assessed as per the guidelines of the Karnataka State Legal Service Authority. Since the accident has been occurred in the year 2021, the notional income of Rs.15,000/- p.m. is taken for the purpose of assessment of compensation.
26. With this background, the quantum of compensation to which the Petitioner is entitled may be adjudicated. For the sake of convenience, discussion may be had under following heads :
SCCH-14 19 MVC.1894/2022 & 1895/2022
I COMPENSATION TOWARDS PAIN, SHOCK AND SUFFERING:
27. The Wound Certificate i.e., Ex.P-7 and other medical records reveal that in the accident the petitioner has sustained following injuries:
1. Laceration 5 cms*1cms *bone deep present over left side of head
2. Laceration 2cms*0.5cms*bone deep present over left temporal region
3. MRI Brain shows Small hematoma in the right frontal lobe.
4.Fracture tip of odontoid process.
5. The apical ligament, tectorial membrane, left transverse ligament appear torn.
6. Intramedullary contusion at the cervicomedullary junction involving the anterior cord.
The Doctor has opined that the injury No.1 and 2 are simple and Injury No.3 to 6 are grievous in nature. Further, P.W.5 has also re-iterated about the grievous injuries sustained by the Petitioner in the accident.
SCCH-14 20 MVC.1894/2022 & 1895/2022
28. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that, awarding compensation of Rs.60,000/- under this head would be just and reasonable.
II COMPENSATION TOWARDS LOSS OF AMENITIES :
29. Bearing in mind the nature of the injuries sustained by the Petitioner, I am of the opinion that awarding compensation of Rs.50,000/- under this head would be just and reasonable.
III COMPENSATION TOWARDS LOSS OF INCOME DURING THE LAID -UP PERIOD:
30. The petitioner has averred in the petition as well as in his evidence that he was admitted as an inpatient from 13.12.2021 to 22.12.2021 at Kauvery Hospital. Further, P.W.5 Dr. Veeresha U Mathad has also reiterated the same in his evidence.
31. Upon going through Ex.P-8 i.e., the Discharge summary, it shows that the Petitioner was admitted as an inpatient from 13.12.2021 to 22.12.2021 i.e., for 10 days. Therefore, the total period which the petitioner was admitted as inpatient is 10 days. SCCH-14 21 MVC.1894/2022 & 1895/2022
32. Having considering the age and the nature of injuries sustained by the Petitioner, I am of the opinion that the laid up period may be considered as two months. Hence, the Petitioner is entitled for compensation of Rs.30,000/- under this head (@ Rs.15,000/- per month).
IV COMPENSATION TOWARDS ATTENDANT'S CHARGES, EXTRA DIET & NOURISHMENT AND CONVEYANCE :
33. Admittedly, the Petitioner has sustained injuries and during the laid up period, the Petitioner might have engaged an attendant and also he might have spent some amount towards extra diet and nourishment and for his conveyance. In the facts and circumstances of the case, awarding compensation of Rs.6,000/- (@ Rs.100/- per day for 60 days) towards attendants charges, Rs.6,000/- towards extra diet and nourishment and Rs.6,000/- towards conveyance would be just and reasonable. In all, the Petitioner is entitled for compensation of Rs.18,000/- under this head.
SCCH-14 22 MVC.1894/2022 & 1895/2022
V. COMPENSATION TOWARDS MEDICAL EXPENSES :
34. The Petitioner has deposed that he has spent Rs.6,00,000/- towards medical expenses. He has produced medical bills at Ex.P.9 amounting to Rs.3,98,245/- and physiotherapy bills at Ex.P.10 amounting to Rs.40,000/-, totally amounting to Rs.4,38,245/-. I have gone through the medical bill. Since there is no serious dispute about the medical bills they are accepted. Hence, by rounding off the same, the petitioner is entitled for Rs.4,38,300/- as a compensation under this head.
VI COMPENSATION TOWARDS LOSS OF FUTURE EARNINGS/COMPENSATION TOWARDS PERMANENT DISABILITY :
35. Learned counsel for the petitioner argued that Tribunal has to assess the functional disabilities. In this regard he relied upon the following judgment;
2011 ACJ 1 between Raj Kumar Vs. Ajay Kumar and another wherein the Hon'ble Supreme Court held that "Quantum- Injury- Principles assessment- Dertmination of loss of future earnings of the injured with reference to extent of SCCH-14 23 MVC.1894/2022 & 1895/2022 his permanent disablement explained-Principles enumerated and illustrations given.
13. We may now summarize the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
36. Keeping the aforesaid principles in mind decided the case on hand. The Petitioner has alleged that due to the injuries sustained by him in the accident, he has suffered permanent disablement and he lost his bright future, self control, SCCH-14 24 MVC.1894/2022 & 1895/2022 concentration and he may not regain his physical and mental activities, he needs an attendant for his daily activities, and he is suffering from head ache and giddiness at several times.
37. Further, the Petitioner got examined doctor by name Dr. Veeresha U Mathad as P.W.5 who also deposed regarding the injuries sustained by the petitioner in a road traffic accident. He further deposed that on examination of the petitioner he found that the petitioner has left Hemiparesis- weakness of left upper and lower limbs, Tone is increased in all four limbs, spasticity present in all four limbs. Further, he got marked Clinical notes, MRI report, X-ray report, X-ray film and MRI films at Ex.P.32 to 36. Considering the condition of the petitioner he assessed permanent Neurological disability of 67% to the whole body due to traumatic spinal card injury.
38. In the cross-examination, PW.5 has admitted that he has not treated the Petitioner. He has assessed the disability with regard to spinal injury. He says that the petitioner had SCCH-14 25 MVC.1894/2022 & 1895/2022 undergone surgery for spine and the outcome of surgery is positive.
39. Upon careful consideration of the assessment of disability made by PW.5 keeping in mind the fact that PW.1 personally appeared before this court and deposed, also keeping in mind the nature of injuries sustained by PW.1 and the treatment which he has taken, Tribunal is of the view that the disability assessed appears to be at the higher side. Hence, having regard to the medical records placed on record and the nature of the injuries sustained by the Petitioner and by considering the nature of his work, I am of the opinion that considering the disability of the Petitioner with respect to the whole body at 50 % would be just and proper.
40. As per Sarla Verma's Case (2009 ACJ 1298 SC), the multiplier applicable to the Petitioner is 18. With multiplier of 18, income of Rs.15,000/- per month and disability of the Petitioner with respect to his whole body at 50%, the loss of future income comes to Rs.16,20,000/- (Rs.15,000/- x 12 x 18 SCCH-14 26 MVC.1894/2022 & 1895/2022 x 50/100 =Rs.16,20,000/-). Hence, by rounding off the same, the petitioner is entitled for Rs.16,20,000 /- as a compensation under this head.
TOTAL COMPENSATION TO WHICH THE PETITIONER IS ENTITLED:
41. To sum up, the Petitioner is entitled for compensation under the following heads :
1. Pain, shock & Suffering Rs. 60,000/-
2. Loss of amenities Rs. 50,000/-
3. Attendant's charges, Extra Rs. 18,000/-
diet, and conveyance
4. Medical expenses Rs. 4,38,300/
5. Loss of income during the laid Rs. 30,000/-
up period
6. Loss of Future income Rs.16,20,000 /-
Total Rs.22,16,300/-
Thus, totally the Petitioner is awarded compensation of Rs.22,16,300/- with costs and simple interest at 6% p.a. from the date of this petition till the date of realization.
42. Issue No.2 in MVC.1895/2022 (Rohini Patel) :- As the Petitioner has proved that the accident has occurred due to the rash and negligent driving of the driver of offending Car by SCCH-14 27 MVC.1894/2022 & 1895/2022 its driver, the Petitioner is entitled for compensation.
43. In the Petition, the Petitioner has shown her age as 34 years. The Petitioner has produced Aadhar card at Ex.P.23 to prove her age. As per the said documents, the year of birth of the petitioner is shown as 1987. The accident took place on 12.12.2021. Hence, the age of the petitioner is 34 years which is to be taken for the purpose of assessment.
44. Further, the Petitioner has averred that she was working as Tailor and was earning Rs.20,000/- per month. In this regard, she has not produced any document to prove her income and avocation. Therefore, in the absence of any evidence, this Court is of the opinion that, the notional income to be assessed as per the guidelines of the Karnataka State Legal Service Authority. Since the accident has been occurred in the year 2021, the notional income of Rs.15,000/- p.m. is taken for the purpose of assessment of compensation.
45. With this background, the quantum of compensation SCCH-14 28 MVC.1894/2022 & 1895/2022 to which the Petitioner is entitled may be adjudicated. For the sake of convenience, discussion may be had under following heads :
I COMPENSATION TOWARDS PAIN, SHOCK AND
SUFFERING:
46. The Wound Certificate i.e., Ex.P-17 and other
medical records reveal that in the accident the petitioner has sustained following injury:
1. Swelling and deformity present over left upper thigh, X ray shows trochanteric and subtrochanteric comminuted fracture of left femur.
The Doctor has opined that the said injury is grievous in nature. Further, P.W.3 has also re-iterated about the grievous injuries sustained by the Petitioner in the accident.
47. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that, awarding compensation of Rs.25,000/- under this head would be just and reasonable. SCCH-14 29 MVC.1894/2022 & 1895/2022
II COMPENSATION TOWARDS LOSS OF AMENITIES :
48. Bearing in mind the nature of the injuries sustained by the Petitioner, I am of the opinion that awarding compensation of Rs.25,000/- under this head would be just and reasonable.
III COMPENSATION TOWARDS LOSS OF INCOME DURING THE LAID -UP PERIOD:
49. The petitioner has averred in the petition as well as in her evidence that she was admitted as an inpatient from 13.12.2021 to 03.01.2022 at Kauvery Hospital. Further, P.W.3 Dr. Ramachandra has also reiterated the same in his evidence.
50. Upon going through Ex.P-18 and 19 i.e., the Discharge summaries shows that the Petitioner was admitted as an inpatient from 13.12.2021 to 17.12.2021 and second time from 31.12.2021 to 03.01.2022 i.e., for 8 days. Therefore, the total period which the petitioner was admitted as inpatient is 8 days.
51. Having considering the age and the nature of injuries sustained by the Petitioner, I am of the opinion that the laid up period may be considered as two months. Hence, the Petitioner is SCCH-14 30 MVC.1894/2022 & 1895/2022 entitled for compensation of Rs.30,000/- under this head (@ Rs.15,000/- per month).
IV COMPENSATION TOWARDS ATTENDANT'S CHARGES, EXTRA DIET & NOURISHMENT AND CONVEYANCE :
52. Admittedly, the Petitioner has sustained injuries and during the laid up period, the Petitioner might have engaged an attendant and also she might have spent some amount towards extra diet and nourishment and for her conveyance. In the facts and circumstances of the case, awarding compensation of Rs.6,000/- (@ Rs.100/- per day for 60 days) towards attendants charges, Rs.6,000/- towards extra diet and nourishment and Rs.6,000/- towards conveyance would be just and reasonable. In all, the Petitioner is entitled for compensation of Rs.18,000/- under this head.
V. COMPENSATION TOWARDS MEDICAL EXPENSES :
53. The Petitioner has deposed that she has spent Rs.5,00,000/- towards medical expenses. He has produced 7 medical bills at Ex.P.20. Wherein some amount has been paid by the SCCH-14 31 MVC.1894/2022 & 1895/2022 health insurance company. The amount paid by the petitioner is Rs.78.357/- and two physitherophy bills at Ex.P.21 amounting to Rs.8,760/-, totally amounting to Rs.87,117/-. The acceptable medical bill totally amounting to Rs.87,117/-. Hence, by rounding off the same, the petitioner is entitled for Rs.87,200/- as a compensation under this head.
VI COMPENSATION TOWARDS LOSS OF FUTURE EARNINGS/COMPENSATION TOWARDS PERMANENT DISABILITY :
54. The Petitioner has alleged that due to the injuries sustained by her in the accident, she has suffered permanent disablement and she cannot walk freely, cannot lift weight, to climb, to use Indian toilet, she needs an attendant for her daily activities and she cannot walk without help of an attendant/walker.
55. Further, the Petitioner got examined doctor by name Dr. S. Ramachandra as P.W.3 who also deposed regarding the injuries sustained by the petitioner in a road traffic accident. SCCH-14 32 MVC.1894/2022 & 1895/2022 Further, he got marked Out patient slip and clinical notes and X-ray at Ex.P.24 and 25. He assessed permanent Residual Physical Disability of petitioner of left lower limb at 47.55% and whole body disability at 23.77%.
56. In the cross-examination, PW.3 has admitted that fractures are mal united. The treated doctor has not advised for correction of mal union. The discharge summary does not disclose any infection in the fracture site. The Wound certificate disclose only left femur bone involvement. He has made physical disability assessment and not functional disability assessment.
57. Upon careful consideration of the assessment of disability made by PW.3 keeping in mind the fact that PW.1 personally appeared before this court and deposed, also keeping in mind the nature of injuries sustained by PW.1 and the treatment which he has taken, Tribunal is of the view that the disability assessed appears to be at the higher rate as he has taken half to the whole body from particular limb. Hence, SCCH-14 33 MVC.1894/2022 & 1895/2022 having regard to the medical records placed on record and the nature of the injuries sustained by the Petitioner and by considering the nature of his work, I am of the opinion that considering the disability of the Petitioner with respect to the whole body at 16 % would be just and proper.
58. As per Sarla Verma's Case (2009 ACJ 1298 SC), the multiplier applicable to the Petitioner is 16. With multiplier of 16, income of Rs.15,000/- per month and disability of the Petitioner with respect to his whole body at 16%, the loss of future income comes to Rs.4,60,000/- (Rs.15,000/- x 12 x 16 x 16/100 =Rs.4,60,000/-). Hence, by rounding off the same, the petitioner is entitled for Rs.4,60,800/- as a compensation under this head.
TOTAL COMPENSATION TO WHICH THE PETITIONER IS ENTITLED:
59. To sum up, the Petitioner is entitled for compensation under the following heads :
1. Pain, shock & Suffering Rs. 25,000/-SCCH-14 34 MVC.1894/2022 & 1895/2022
2. Loss of amenities Rs. 25,000/-
3. Attendant's charges, Extra Rs. 18,000/-
diet, and conveyance
4. Medical expenses Rs. 87,200/-
5. Loss of income during the Rs. 30,000/-
laid up period
6. Loss of Future income Rs.4,60,800/ Total Rs.6,46,000/-
Thus, totally the Petitioner is awarded compensation of Rs.6,46,000/- with costs and simple interest at 6% p.a. from the date of this petition till the date of realization.
60. Regarding Liability: This Court has arrived at the conclusion that the accident has been occurred by the rash and negligent driving on the part of the driver of the offending Car bearing No.KA-04-AB-5898. There is no dispute of the fact that the respondent No.1 is the owner and the respondent No.2 is the insurer of the offending vehicle.
61. The learned counsel for the respondent No.2 in his written arguments states that the driver of the offending car had licence to drive LMV and hence, he did not possess effective driving licence. The RW.1 IO deposed that the SCCH-14 35 MVC.1894/2022 & 1895/2022 offending vehicle is the motor car used for commercial purpose and the driver had LMV licence. Learned counsel for the petitioner relied upon the judgment reported in (2017) 14 SCC 663 between Mukund Dewagan Vs Oriental Insurance Company Ltd. Wherein the Hon'ble Apex court and High Court of Karnataka held that driver possessed licence to drive LMV is competent to drive a transport vehicle where the gross weight /unladen weight of the vehicle does not exceed 7500 KG. In the case on admittedly the offending vehicle is a car it unladen weight is less than 7500 KG. Therefore, this Tribunal opines that driver of the offending vehicle had valid driving licence at the time of accident.
62. Now that this court has ascertained the compensation amount, the last aspect of the matter is regarding fixation of liability i.e., who should be made liable to pay the compensation to the petitioner?. Precisely, it is the specific case of the respondent No.2 that the respondent No.1 owner cum driver of the offending Car bearing registration No. SCCH-14 36 MVC.1894/2022 & 1895/2022 KA-04-AB-5898 had drove the vehicle under influence of alcohol.
63. The charge sheet discloses that the driver of the offending vehicle, driving the said car under the influence of alcohol and Ex.R.10 FSL report shows the same. The respondent No1 who is the owner cum driver of the offending vehicle had not contested before the court and he has not proved that the he was not driving the vehicle under influence of alcohol. Such being the case, this tribunal held that the driver of the offending vehicle was driving the vehicle at the time of accident under the influence of alcohol.
64. Respondent No.2 has examined the ASI, Electronic City Traffic Police Station, Bengaluru as RW.1 and produced the documents as per Ex.R.1 to 23. In his examination chief, he deposed that the driver of the vehicle bearing Reg. No.KA-04- AB-5898 by name Vivekananda was found to have driven the vehicle having consumed the alcohol beyond the permissible SCCH-14 37 MVC.1894/2022 & 1895/2022 limit. Ex.R.21 receipt of Alcometer reflects that he was under
influence of alcohol beyond permissible limit and the lab report Ex.R.10 justifies the examination held. Therefore it is crystal clear that the driver of the offending vehicle drove the same under influence of alcohol at the time of accident.
65. For the reasons discussed as supra, it is established that the driver of the offending vehicle was driving the same in an intoxicated condition and in violation of the terms and conditions contained in the insurance policy.
Learned counsel for petitioner has relied upon the following citations:
(i) 2022 ACJ 650 between Rekha Devi and others Vs. Mukesh Yadav and another, wherein the Hon'ble High Court of Karnataka held as follows;
"10. It is well settled law that the insurer is liable to pay the third party and recover the same from the insured even if there is breach of any condition recognized under section 149(2), even if it is a fundamental breach (that is, breach of condition which SCCH-14 38 MVC.1894/2022 & 1895/2022 is the cause for the accident) and the insurer proves the said breach in view of the mandate under section 149(1) of the Act. [See: National Insurance Co. Ltd., v. Laxmi Narain Dhut, 2007 ACJ 721 (SC); Oriental Insurance Co. Ltd., vs. Brij Mohan, 2007 ACJ 1909 (SC) and Shamanna v. Divisional Manager, Oriental Insurance Co. Ltd., 2018 ACJ 2163 (SC) and Full Bench decision of this court in New India Assurance Co. Ltd., v. Yallavva, 2020 ACJ 2560 (Karnataka). In the instant case, the driver of the offending Lorry was driving the same in an intoxicated condition and in violation of the terms and conditions contained in the insurance policy. The Tribunal erred in exonerating the insurance company from its liability to pay the compensation. In view of the aforesaid legal principles, the respondent No.2-insurance company is held liable to pay the total amount of compensation to the claimants at the first instance and recover the same from the insured. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified."
66. The essence of the aforesaid decision is that even where the driver of the offending vehicle was found to be driving under influence of alcohol and the insurance company pleads that there is violation of policy conditions, if the vehicle had a valid and subsisting insurance policy, then the insurance SCCH-14 39 MVC.1894/2022 & 1895/2022 company has to pay the compensation with liberty to recover the same from owner and driver.
67. The respondent No.2 has admitted the issuance of policy in favor of respondent No.1 in respect of Car bearing Reg. No.KA-04-AB-5898. Thereby fortifying the view taken by this Tribunal that the respondent No.2 should make good the compensation amount to the petitioner and then proceed against the respondent No.1 i.e., the owner to recover the same
68. For the foregoing reasons this court finds no hesitation in holding that the respondents are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 being the insurer shall pay the compensation amount to the petitioner with liberty to recover the same from respondent No.1. Accordingly, Issue No.2 in both petitions is held in the partly affirmative.
69. Issue No.3 in both the cases : From the above discussion, I am of the opinion that the Petitioner in SCCH-14 40 MVC.1894/2022 & 1895/2022 MVC.No.1894/2022 is entitled for compensation of Rs.22,16,300/- along with interest at the rate of 6% p.a. from the date of the Petition.
The Petitioner in MVC.No.1895/2022 is entitled for compensation of Rs.6,46,000/- along with interest at the rate of 6% p.a. from the date of the Petition.
70. Issue No.3 in both the cases : In view of my findings on Issue No.1 and 2, I proceed to pass the following:
ORDER The Claim Petition filed by the Petitioner in MVC. No.1894/2022 against the Respondents under Section 166 of Motor Vehicles Act is hereby allowed in part with costs.
The Claim Petition filed by the Petitioner in MVC No.1895/2022 against the Respondents under Sec.166 of Motor Vehicles Act is hereby allowed in part with costs.
The Petitioner in MVC No.1894/2022 is
SCCH-14 41 MVC.1894/2022 & 1895/2022
entitled for total compensation of
Rs.22,16,300/- along with costs and simple
interest at the rate of 6% p.a., from the date of the Petition till the date of deposit of the Award amount.
The Petitioner in MVC No.1895/2022 is entitled for compensation of Rs.6,46,000/- along with costs and simple interest at the rate of 6% p.a., from the date of the Petition till the date of deposit of the Award amount.
The Respondent No.1 and 2 are jointly and severally liable to pay the compensation amount to the Petitioner.
The Respondent No.2 being the insurer of the offending vehicle in both the cases, is directed to deposit the Award amount and interest within 60 days from the date of the Award in both the cases.
After being deposit of the Award amount and interest by the Respondent No.2 out of the amount awarded to the Petitioner in MVC No.1894/2022, 75% of the award amount is SCCH-14 42 MVC.1894/2022 & 1895/2022 ordered to be paid to the Petitioner by way of E- payment and after their proper identification and the remaining 25% of the award amount shall be kept in Fixed deposit in the name of Petitioner in any Nationalized or Scheduled Bank for a period of 3 years of his choice.
After being deposit of the Award amount and interest by the Respondent No.2 out of the amount awarded to the Petitioner in MVC No.1895/2022, 75% of the award amount is ordered to be paid to the Petitioner by way of E- payment and after their proper identification and the remaining 25% of the award amount shall be kept in Fixed deposit in the name of Petitioner in any Nationalized or Scheduled Bank for a period of 3 years of her choice.
The Advocate fee is fixed at Rs.1,000/- respectively in both the cases.
Draw Award accordingly.SCCH-14 43 MVC.1894/2022 & 1895/2022
Keep the Original Judgment in MVC.1894/2022 and the copy of the Judgment in M.V.C. No.1895/2022.
(Dictated to the stenographer, typed and computerized by her, corrected, signed and then pronounced by me in the open Court on this 22th day of February, 2025) (D.RAMESH) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.
Annexure Witnesses examined on behalf of the Petitioners :
P.W.1 : Sri Bhathmanathan P.W.2 : Smt. Rohini Patel P.W.3 : Dr. S. Ramachandra P.W.4 : Sri Manikanta N., P.W.5 : Dr. Veeresha U., Documents marked as Exhibits for the Petitioners :
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Statement of PW.1
Ex.P4 True copy of Spot Mahazar with sketch
Ex.P5 True copy of Charge sheet
SCCH-14 44 MVC.1894/2022 & 1895/2022
Ex.P6 True copy of IMV report
Ex.P7 True copy of Wound certificate
Ex.P8 True copy of Discharge summary
Ex.P9 Medical Bills
Ex.P.10 Physiotherapy bills
Ex.P11 Photos
Ex.P12 CD
Ex.P13 Notarized copy of Aadhar card of PW.1 (Compared
with original and returned the original to the witness) Ex.P14 Notarized copy of PAN card of PW.1 (Compared with original and returned the original to the witness) Ex.P15 Notarized copy of SSLC Marks card of PW.1 (Compared with original and returned the original to the witness) Ex.P16 Notarized copy of Certificate of completion of Bsc., of PW.1 (Compared with original and returned the original to the witness) Ex.P17 True copy of Wound certificate of PW.2 Ex.P18 Discharge summaries & 19 Ex.P20 Medical bills Ex.P21 Physiotherapy bills Ex.P22 Advance bills Ex.P23 Notarized copy of Aadhar card of PW.2 (Compared with original and returned the original to the witness) Ex.P24 Out patient slip and clinical notes SCCH-14 45 MVC.1894/2022 & 1895/2022 Ex.P25 X-ray (1 in no) Ex.P26 Authorization letter Ex.P27 True copy of police intimation Ex.P28 True copy of MLC register extract Ex.P29 In-patient record Ex.P30 E-Mail document Ex.P31 Certificate Ex.P32 Clinical notes Ex.P33 MRI report Ex.P34 X-ray report Ex.P35 X-ray film Ex.P36 MRI films (4 in No's) Witness examined on behalf of the Respondents :
RW.1 : Sri S. Raghuram RW.2 : Kum.Yogashree
Documents marked as Exhibits for the Respondents :
Ex.R1 True copy of Charge sheet Ex.R2 True copy of FIR Ex.R3 True copy of Complaint Ex.R4 True copy of Spot sketch Ex.R5 True copy of Spot Mahazar Ex.R6 True copy of notice issued U/sec.133 of IMV Act Ex.R7 True copy of reply given in respect of Ex.R6 SCCH-14 46 MVC.1894/2022 & 1895/2022 Ex.R8 True copy of Wound Certificate of Rohini Patel Ex.R9 True copy of Wound Certificate of Batmanabhan Ex.R10 True copy of lab report of Mr.Vivekananda Ex.R11 True copy of IMV report Ex.R12 True copy of Police intimation NO.622 Ex.R13 True copy of Police intimation NO.619 Ex.R14 True copy of personal bond of Vivekananda Ex.R15 True copy of statement of Siddalinga Methri- HC-8961 Ex.R16 True copy of statement of Doreswamy S/o Shivaiah Ex.R17 True copy of statement of Smt.Rohini patel Ex.R18 True copy of statement of Batmanabhan Ex.R19 True copy of statement of Shashidhar Ex.R20 True copy of statement of Lalasaab Ex.R21 True copy of statement of receipt of Alchometer Ex.R22 True copy of statement of PF No.38/2021 Ex.R23 True copy of Vehicle Seizer Mahazar along with documents pertaining to vehicles involved in this case Ex.R24 Authorization letters 2 in nos Ex.R25 Copy of policy (D.RAMESH) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.