Bangalore District Court
Sri.Chandrashekar.B.M vs The Managing Director on 11 November, 2015
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU.
(SCCH-13)
DATE: THE 11th DAY OF NOVEMBER 2015.
PRESENT :
SMT.B.PUSHPANJALI, B.A., LL.M.
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
M.V.C.No.844 of 2014.
PETITIONER: Sri.Chandrashekar.B.M.
45 years, S/o Mariyappa.M.
No.227, 2nd Main,
Ramachandrapura,
Bengaluru-560021.
vs.
RESPONDENTS: The Managing Director,
B.M.T.C., Double Road,
Shanthinagara, Bengaluru.
-o0o-
JUDGMENT
The petitioner has filed this petition under Sec.166 of M.V.Act, claiming compensation of Rs.30,00,000/- on account of injuries sustained by him in the motor vehicle accident.
2. The brief facts of the petitioner's case are that : SCCH.13 2 MVC.844/2014
On 26.6.2013 at about 8.30 p.m., when the petitioner was crossing the T.B.Road, near Ganesha Temple, Subhash Nagara, Bengaluru at that time, the driver of BMTC bus bearing No.KA 01 F 3887 driven the same at high speed and in a rash and negligent manner, so as to endanger human life, dashed against the petitioner. Due to the impact, the petitioner sustained grievous injuries. Immediately, he was shifted to Victoria Hospital, after first-aid he was shifted to MS Ramaiah Hospital, wherein he took treatment as an inpatient by spending huge amount towards medical, conveyance, nourishment and other incidental charges etc. Due to the accidental injuries, he has suffered disability. Hence, he prays to allow the petition.
3. In response to the notices, respondent placed its appearance through the counsel and filed written statement with the following contentions:-
The respondent is disputing that the accident was on account of rash and negligence of the driver of the alleged bus. It has disputed the physical impairment suffered on account of the injuries sustained by the SCCH.13 3 MVC.844/2014 petitioner in the motor vehicle accident. It has also disputed the age, income of the petitioner, reduction of his working capacity and amount spent towards medical treatment. It is also contended that the compensation claimed in the petition is exorbitant, therefore, the instant petition may be dismissed.
4. On the basis of the above pleadings the following issues have been framed:-
1. Whether the petitioner proves that on 26.6.2013 at about 8.30 p.m., when the petitioner was crossing the T.B.Road, near Ganesha Temple, Subhash Nagara, Bengaluru at that time, the driver of BMTC bus bearing No.KA 01 F 3887 driven the same at high speed and in a rash and negligent manner, so as to endanger human life, dashed against the motor cycle due to which the petitioner had sustained grievous injuries?
2. Whether the petitioner is entitled for the compensation? If so, what amount & from whom?
3. What order ?
5. In order to prove the petition claim, the petitioner and two witnesses were examined as PW.1 to 3 and got marked the documents at Ex.P.1 to P.16. The Respondent has examined its driver as RW.1. SCCH.13 4 MVC.844/2014
6. Heard the arguments.
7. My findings to the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: As per final order for the following:-
REASONS
8. Issue No.1 :- It is the case of the petitioner that he has sustained grievous injuries in a motor vehicle accident that occurred on 26.6.2013 at about 8.30 p.m., when the petitioner was crossing the T.B.Road, near Ganesha Temple, Subhash Nagara, Bengaluru at that time, the driver of BMTC bus bearing No.KA 01 F 3887 driven the same at high speed and in a rash and negligent manner, dashed against the petitioner. In order to prove that the accident is on the negligence of the driver of the offending vehicle, he has filed his affidavit in lieu of his examination-in-chief, re-asserting the petition averments. Apart from his oral evidence, he has also produced documents marked as exhibits.
9. On careful perusal of the records it reveal that the respondent filed written statement disputing the SCCH.13 5 MVC.844/2014 involvement of the vehicle and also cause of the accident. It is the specific assertion of the respondent that though the vehicle was not involved in the accident, only with oblique motive to get compensation, a delayed complaint is filed by falsely implicating the offending bus. Often, buses are implicated with an intention to get compensation easily if the buses are falsely implicated. Though the petitioner sustained injuries due to self fall or for some other ailment, only with an intention to get compensation by filing a delayed complaint it is falsely implicated. These among other grounds, it has requested for dismissal of the claim petition.
10. In order to substantiate its specific assertion, respondent examined the driver of the offending bus as RW.1 who also re-asserted the same in his affidavit. However, in the cross-examination, he has admitted that on that day he was driving the offending bus from Peenya to Majestic, Police have seized the bus and he was released on bail, the criminal case is pending against him. He has not filed any complaint to the higher authority or to the concerned Police and he do not know the compensation paid by the respondent. In the light of SCCH.13 6 MVC.844/2014 evidence of both the parties and a careful perusal of the records reveal that there is 4 days delay in filing the complaint. The reason assigned by the petitioner is that, immediately after the accident, on account of the injuries he was unconscious, treated in ICU for several days at M.S.Ramaiah Hospital, thereby he could not lodge complaint immediately. History of the injury recorded in the medical records shows that he sustained injuries to his leg by the BMTC bus. The entire medical records of M.S.Ramaiah Hospital shows that petitioner had sustained major degloving injury of left leg with bicondylar fracture of left tibia and femur. He took treatment as an inpatient for two months at M.S.Ramaiah Hospital and it is also reflected from the discharge summary that petitioner was in prolonged ICU stay for about a month approximately in the post OP period. Besides, the petitioner was also treated surgically on two- three occasions in the said hospital. From the medical records it is clinchingly evidenced that initially, the petitioner was admitted to KCG Hospital, then shifted to Victoria Hospital and thereafter admitted in M.S.Ramaiah Hospital. Since, approximately for one month the SCCH.13 7 MVC.844/2014 petitioner was treated in ICU on account of major injuries, the petitioner was temporarily paralysed to move about and to lodge complaint to the Police Station. The history of injuries recorded in the medical records clinchingly evidenced that he was treated with history of road traffic accident hit by the bus. The FIR was registered based upon the statement recorded by the concerned Police in the hospital. That means, from the date of the accident, till the day of recording the statement, the petitioner was not in a position to give complaint. No doubt, there is four days' delay in filing the complaint but in the absence of any cogent evidence, this Tribunal can not believe the assertion of the respondent that the BMTC bus is not at all involved in the accident but the same is falsely implicated. In order to brush aside the earliest entry recorded in the medical records, absolutely no rebuttal evidence is placed before the court. If according to the respondent, the bus is falsely implicated and the injury to the petitioner was not due to the BMTC bus, definitely, RW.1 could have resisted the complaint registered against him. Besides, respondent has not taken any pains to challenge the Investigation report submitted against the SCCH.13 8 MVC.844/2014 bus. However, in the cross-examination it is posed that the respondent has paid interim compensation to the petitioner. If the bus was not involved in the accident and the accident was not on the negligence of RW.1, then the question of interim compensation to the petitioner by the respondent does not arise. Therefore, looking at any angle, this court is of the opinion that the respondent has failed to prove that the offending vehicle is falsely implicated by the petitioner to get compensation.
11. On the other hand, the copy of FIR at Ex.P.1, reveals that a case has been registered against the driver of offending vehicle on account of his rash and negligent act. Ex.P.2 is the true copy of the charge sheet, which reveals that during the course of investigation, the concerned IO has confirmed the rash and negligent driving of the offending vehicle by its driver. Ex.P.2 is the wound certificate which reveals that the petitioner had sustained grievous injuries in the motor vehicle accident. Therefore, the evidence of PW.1 coupled with the documents marked at Ex.P.1 & P.2, P.8 to P.11 convince the Tribunal in holding that the accident was on account of the rash and negligent driving of the offending vehicle SCCH.13 9 MVC.844/2014 and in the said accident, the petitioner had sustained grievous injuries. Consequently, Issue No.1 is answered in affirmative.
12. Issue No.2 :- It is needless to say that the age, income, nature of injuries, its impact on the working capacity of the claimant and medical expenses incurred towards his treatment are the considering factors to ascertain the quantum of compensation.
13. In the petition, it is contended that the petitioner was aged about 45 years. The wound certificate and discharge summary marked at Ex.P.2 and P.3 reveal the age of the petitioner as 45 years. Hence, this Tribunal could believe the age of the petitioner as 45 years as on the date of the accident.
14. Now coming to the income of the petitioner, it is the contention of the petitioner that he was a Mechanic at BMTC and earning Rs.25,000/- per month. In order to substantiate his avocation and income at the time of accident, he has produced ID card & salary certificate marked at Ex.P.4 and P.5. The respondent has not disputed the avocation and salary paid to the petitioner. SCCH.13 10 MVC.844/2014 Ex.P.4 & P.5 reveal that petitioner is a Mechanic at BMTC and his gross salary was Rs.16,323/- p.m., after deduction of Rs.200/- towards PT, net salary of the petitioner works out to Rs.16,123/- p.m.
15. Injury, Pain & suffering:- According to the petitioner, he had sustained grievous injuries in the accident, therefore he has under gone treatment, during which he had suffered injury, pain and suffering. On looking to Ex.P.2-wound certificate, Ex.P.3- Discharge summary, Ex.P.12 - IP Record, Ex.P13-OP Record and Ex.P.14 -X-ray, it reveal that the petitioner had sustained major degloving injury of left leg with bicondylar fracture of left tibia and femur.
16. According to the petitioner, soon after the accident, he was shifted to Victoria Hospital, Bengaluru, after first-aid, he was shifted to M.S.Ramaiah Hospital, Bengaluru wherein he was treated as an inpatient from 27.6.2013 till 26.8.2013, for two months during which period, he underwent wound debridement, multiple K wiring, hybrid external application with knee spanning gastronomies flap & facial flap, debridement and external SCCH.13 11 MVC.844/2014 fixator readjustment , latissments Dorsi free flap coverage and split skin grafting. At the time of discharge on 26.8.2013, he was advised to take follow-up treatment regularly. Again he admitted to the said hospital on 12.09.2013 for wound debridement and llizerao external fixator application and discharged on 11.10.2013.
17. Apart from his oral evidence, petitioner has examined Dr.Gopalappa, RMO, M.S.Ramaiah Hospital as PW.2 and PW3-Dr.S.A.Somashekar, Orthopaedic Surgeon at Bowring Hospital, Bengaluru. PW.3, doctor who has clinically and radiologically examined the petitioner has deposed about the injuries sustained by the petitioner, treatment undergone and disability suffered by the petitioner. He found difficulties faced by the petitioner and assessed the disability of about 80% for left lower limb and 40% to the whole body. Hence, having regard to the nature of injuries sustained and treatment undergone by the petitioner, this Tribunal could believe that the petitioner herein has undergone treatment during which he had suffered injury, pain and suffering. Therefore, taking note of this material aspect, the nature of injuries and also the difficulties as faced by the petitioner, this SCCH.13 12 MVC.844/2014 Tribunal feels to award Rs.80,000/- towards injury, pain and suffering.
18. Loss of earnings during the medical treatment & loss of future income:- It is the contention of the petitioner that on account of accidental injuries, he could not attend to his duties and he was on leave, thereby he has sustained loss of leave encashment benefit. In order to substantiate that he has sustained loss of leave and leave encashment benefit and loss of pay during laid up period, nothing is placed on record. Even the petitioner has not examined his employer or the concerned Officer to show that he was not paid salary during laid up period. So, in the absence of any cogent evidence, this Tribunal can not believe the assertion of the petitioner that he has sustained loss of earning during laid up period.
19. It is the contention of the petitioner that on account of accidental injuries, he could not attend to his duties he can not walk or stand properly, limps while walking, can not squat or fold and cannot do any work as before. He cannot pursue his duties as he was doing prior to the accident, which has resulted in the loss of present SCCH.13 13 MVC.844/2014 and future earnings. Besides, he has also examined the doctor who subjected the petitioner for his clinical and radiological examination. According to him, the petitioner, on account of accidental injuries, walks only a few steps with brace and walker frame, scarring and keloid formation present over left thigh, left knee or leg, left ankle is in equinus, wasting of left lower limb present, recent x-ray showed regional osteo paenia (suggesting infection), total loss of joint space (advanced arthritis), malunited lateral condyle tibia, loss of lateral condyle of femur, deformity -subluxation of joint and has assessed the disability to the left lower limb to an extent of 80% to the left lower limb and to the whole body at 40%.
20. No doubt, the petitioner has examined the doctor who has assessed the permanent disability suffered by the petitioner to the extent of 40% to the whole body, but it has not affected his avocation or the income as he has continued his avocation as Mechanic in BMTC and earning Rs.25,000/- as admitted by him in his cross-examination. Now a question would arise before the court, whether the petitioner is entitled for loss of future earnings due to disability suffered on account of SCCH.13 14 MVC.844/2014 accidental injuries, even though he is continued in his avocation and having income. On this aspect, Hon'ble High Court of Karnataka had an occasion to consider and dealt with a decision reported in ILR 2010 KAR 2439 between Sri.Subhash Vs. New India Assurance Co. Ltd., and Others, it reads thus:
"MOTOR VEHICLE ACT, 1988 - ACCIDENT CLAIM - Judgment and award - inadequacy of compensation - Appealed against by the Claimant - Insurance company appeal seeking reduction in compensation - Claimant continued in the services after the accident - Award of compensation towards loss of future income by the Tribunal - Legality of - HELD, The Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in services, then, the question of awarding compensation towards loss of future income does not arise. - Therefore, compensation awarded towards loss of future income is liable to be set aside - Judgment and Award is modified."
In view of the ratio laid down in the above decision and when the petitioner is continued his job as Mechanic and having the income, this Tribunal is of the opinion that the petitioner is not entitled for compensation under the head loss of future income due to disability and no amount is awarded under this head.
SCCH.13 15 MVC.844/2014
21. Loss of amenities:- On looking to the wound certificate and disability certificate, the petitioner had sustained major degloving injury of left leg with bicondylar fracture of left tibia and femur in the said accident and due to said injuries, he has not completely recovered and as such he has suffered permanent disability. PW.3- Dr.S.A.Somashekar, Orthopedics Surgeon, who has subjected the petitioner to his clinical and radiological examination in ascertaining his physical impairment has come up with the evidence that the petitioner walks only a few steps with brace and walker frame, he has suffered restriction of movements and loss of muscle power and difficulty to do routine activities. Therefore, this Tribunal has no hesitation to award Rs.30,000/- towards the loss of amenities. The said amount is awarded keeping in mind regarding the age of the petitioner at 45 years, he had a long future and loss of enjoyment in his future life.
22. Conveyance, Nourishment food and attendant charges:- Petitioner has undergone treatment as an inpatient at M.S.Ramaiah Hospital for more than SCCH.13 16 MVC.844/2014 two months and he has taken regular follow-up treatment atleast for three months and the treated doctor has also endorsed about the course of treatment during hospitalisation. In the absence of any cogent material before the court, the petitioner is not entitled for the amount claimed under these bills under conveyance charges. Though, there is no definite evidence on record regarding the amount spent towards nourishment, food & attendant charges, having regard to the duration of the prolonged treatment in ICU as well as follow-up treatment, this tribunal feel to provide Rs.60,000/- (Rs.1000 per day x 60 days) which is the just and fair compensation.
23. Future medical expenses : Evidence is also led by the petitioner that his left leg is completely useless, in view of advanced septic arthritis and deformity, he needs above knee amputation. The Counsel appearing for the respondent has not denied or disputed the fact that the petitioner requires another surgery. Since the petitioner is to undergo surgery for removal of implants, I find it is just and necessary to award Rs.20,000/- as compensation under the head future medical expenses. It SCCH.13 17 MVC.844/2014 is made clear that the above amount will not carry any future interest.
Hence, the following calculation:-
1. Injury pain & sufferings: Rs. 80,000/-
5. Loss of amenities: 30,000/-
6. Conveyance, Nourishment, 60,000/-
Food & attending charges:
7. Future Medical expenses 20,000/-
Total: Rs. 1,90,000/-
Hence, this tribunal that feel it is just and proper to award the compensation of Rs.1,90,000/- which is the just and fair compensation.
24. So far as interest is concerned, as per Sec.171 of Motor Vehicle Act tribunal is empowered to grant interest from date of claim at simple interest at such rate as it deems reasonable. The Division Bench ruling of the Karnataka High Court in Managing Director, Karnataka Power Corporation Limited Vs. Geeta and the Division Bench ruling in P.Rama Devi Vs. C.B. Sai Krishna and others are of the view that the rate of interest to be awarded should be at the rate of 6%. In AIR 1994 Kar.8, it was observed that "Compensation is an amount paid in advance for any loss of life or loss of dependency or loss of SCCH.13 18 MVC.844/2014 earnings. It is not a debt. Therefore, the interest to be awarded under Section 110-CCC of the Motor Vehicles Act could only be at 6% per annum." Therefore, the petitioner is entitled for the interest at 6% per annum on the said amount from the date of the petition till deposit of the entire compensation amount.
25. So far as liability is concerned, it is not in dispute that on the date of accident respondent was the owner of the offending vehicle. Therefore, the respondent shall liable to pay compensation and it shall deposit compensation amount in the court with interest at 6% p.a. Hence, I answer Issue No.2 accordingly.
28. Issue No.3:- In view of my findings on issue Nos.1 and 2, I proceed to pass the following:-
ORDER The petition filed by the petitioner under Sec.166 of M.V. Act is partly allowed.
The respondent is liable to pay the compensation of Rs.1,90,000/- to the petitioner with interest at the rate of Rs.6% p.a. from the date of the petition till the date of SCCH.13 19 MVC.844/2014 deposit in court. The respondent shall deposit the entire compensation amount within two months from today.
After deposit of the compensation amount, same shall be disbursed in favour of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.500/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, corrected, signed & pronounced in open court on 11th November 2015) (B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
ANNEXURE List of witnesses examined for petitioner :
PW.1 : Chandrashekar PW.2 : Dr.Gopalappa PW.3 : Dr.S.A.Somashekar
List of documents marked for petitioner :
Ex.P.1 : CC of FIR with complaint Ex.P.2 : Wound certificate Ex.P.3 : Discharge summary Ex.P.4 : NC of ID card issued by BMTC (compared
with original and returned back to the witness) SCCH.13 20 MVC.844/2014 Ex.P.5 : Salary slip Ex.P.6 : NC of Syndicate Bank pass book (compared with original and returned back to the witness) Ex.P.7 : 4 Photos with CD Ex.P.8 : Charge sheet Ex.P.9 : Sketch Ex.P.10 : Mahazar Ex.P.11 : IMV Report Ex.P.12 : IP Records Ex.P.13 : OP Record Ex.P.14 : 2 X-rays Ex.P.15 : OP card Ex.P.16 : X-ray :
List of witnesses & documents for respondents :
RW.1 : K.Suresh
(B.PUSHPANJALI)
II Addl.Small Causes Judge &
XXVIII ACMM, Bengaluru.
SCCH.13 21 MVC.844/2014
AWARD
SCCH.NO:13
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY MVC.844/2014 PETITIONER: Sri.Chandrashekar.B.M. 45 years, S/o Mariyappa.M. No.227, 2nd Main, Ramachandrapura, Bengaluru-560021.
vs. RESPONDENTS: The Managing Director, B.M.T.C., Double Road, Shanthinagara, Bengaluru.
-o0o-
WHEREAS, this petition filed on __________by the petitioner/s above named U/sec.110-A/166 of the M.V.C. Act praying for the compensation of Rs._________ (Rupees _________________________________for the injuries sustained by the petitioner/Death of ___________in a Motor Accident by Vehicle No.___________.
WHEREAS, this claim petition coming up before Smt.B.Pushpanjali, II Addl. Judge, Member, Bengaluru, in the presence of Sri/Smt.________________ Advocate for petitioner/s and of Sri/Smt.________________ Advocate for respondent. The claim petition is decreed as under :- SCCH.13 22 MVC.844/2014
ORDER The petition filed by the petitioner under Sec.166 of M.V. Act is partly allowed.
The respondent is liable to pay the compensation of Rs.1,90,000/- to the petitioner with interest at the rate of Rs.6% p.a. from the date of the petition till the date of deposit in court. The respondent shall deposit the entire compensation amount within two months from today.
After deposit of the compensation amount, same shall be disbursed in favour of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.500/-. Given under my hand and seal of the Court this_the .......... day of ................2015.) MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BENGALURU.
COST OF PETITION
By the
Petitioner/s Respondent
No.1 No.2
Court fee paid on Petition 10-00
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee
Total Rs.
Decree Drafted Scrutinized by
Decree Clerk SHERISTEDAR
MEMBER, M.A.C.T,
METROPOLITAN AREA,
BENGALURU.
SCCH.13 23 MVC.844/2014
ORDER
The petition filed by the petitioner under Sec.166 of M.V. Act is partly allowed.
The respondent is liable to pay the compensation of Rs.1,90,000/- to the petitioner with interest at the rate of Rs.6% p.a. from the date of the petition till the date of deposit in court. The respondent shall deposit the entire compensation amount within two months from today.
After deposit of the compensation amount, same shall be disbursed in favour of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.500/-. Draw award accordingly.
(B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.SCCH.13 24 MVC.844/2014
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH.13) DATED THIS THE 18th DAY OF SEPTEMBER 2014 M.V.C.No.844 of 2014.
Petitioner Chandrashekar.B.M.
-vs-
Respondents: BMTC, Bengaluru.
ISSUES
1. Whether the petitioner proves that on 26.6.2013 at about 8.30 p.m., when the petitioner was crossing the T.B.Road, near Ganesha Temple, Subhash Nagara, Bengaluru at that time, the driver of BMTC bus bearing No.KA 01 F 3887 driven the same at high speed and in a rash and negligent manner, so as to endanger human life, dashed against the motor cycle due to which the petitioner had sustained grievous injuries?
2. Whether the petitioner is entitled for the compensation? If so to what extent & from whom?
3. What order ?
(B.PUSHPANJALI) II Addl. Small Causes Judge & XVIII ACMM, Bengaluru.