Bangalore District Court
Sri. Aravinda. T vs H.P Komala on 28 February, 2022
KABC020246512018
BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, XXII ADDITIONAL JUDGE OF SMALL CAUSES
COURT AND A.C.M.M. AT BENGALURU (SCCH24).
DATED THIS THE 28th DAY OF FEBRUARY 2022
PRESENT: SMT.ASHWINI M. HATTIHOLI
(B.Com., LL.B),
C/c XXII ADDL. SCJ & ACMM
MEMBER MACT, BENGALURU.
MVC. No.6021/2018
Petitioner/s : Sri. Aravinda. T
S/o Thippa Reddy G.T
Aged about 37 years,
R/at Anugraha,
B.L Gowda Layout,
Near Basappa Hospital,
Behind RTO office,
Chitradurga, Karnataka577501.
Presently R/at: No.1,
Ashwath Reddy building,
Aingari Layout, 3rd cross,
Kudlu village, Hosur road,
Bangalore.
(By Sri.Vinoda B.C, Advocate)
v/s
SCCH-24 2 MVC No.6021/2018
Respondent/s : 1. H.P Komala
S/o Lakshmi Narayan,
#42C,SY#12/4, Shanthipura,
Near Electronic City, Anekal Taluk,
Bengaluru Rural562100.
(RC owner of bus No.KA51D6354)
(Exparte)
2. TATA AIG General Ins.Co.Ltd.,
2nd floor, JP and Devi,
Jambukeshwara Arcade,
No.69, Millers road,
Bangalore560 052,
Rep by the Manager.
(Insurer of bus No.KA51D6354)
(Policy No.015628113101
Validity period 10.09.2017 to
09.09.2018)
(By Sri.Y.P Venkatapathi,
Advocate)
***
JUDGMENT
This claim petition is filed under section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries sustained in a Road Traffic Accident.
2. The facts leading to the filing of the instant petition are that on 06.09.2018 at about 06.30 p.m, when the petitioner being the rider of motorcycle bearing Reg.No.KA16EA6931 SCCH-24 3 MVC No.6021/2018 reached near Pai Electronics showroom situated on Hosur Main road, a bus bearing Reg.No.KA51D6354 came at high speed in a rash & negligent manner and dashed against his motorcycle. As a result the petitioner fell down and sustained grievous injuries. Immediately after the accident the petitioner was rushed to Pralaksha Hospital. First aid was given to him at the said hospital. For further management he was referred to Hosmat Hospital, wherein he took treatment as an inpatient for 11 days. In fact the said injures have caused permanent disability to him. The first respondent being the RC owner of the the offending bus and the second respondent being the insurer thereof are jointly & severally liable to pay compensation.
3. After registering the case, notices were issued to the respondents. The respondent No.1 failed to appear despite due service of notice upon her. Hence she was placed exparte. The respondent No.2 filed written statement admitting the issuance of insurance policy in respect of bus bearing Reg.No.KA51D6354. However the liability if any is pleaded to be subject to the terms and conditions of the policy. The mode and occurrence of the accident as well as involvement of the vehicle bearing Reg.No.KA51D6354 is emphatically SCCH-24 4 MVC No.6021/2018 denied. Noncomplaince of Sec's 134(c) & 158 (6) of the MV Act, 1988 is pleaded. Rest of the petition averments are repudiated as false and baseless and it is prayed to dismiss the petition.
4. On the basis of the above pleadings my learned predecessorinoffice framed the following :
ISSUES
1. Whether the petitioner proves that on 06.09.2018 at about 06.30 p.m., near Pai Electronics show room, Hosur main road, Bengaluru, he sustained injuries in the RTA caused by the driver of the bus bearing Reg.No.KA51D6354, on account of his rash and negligent driving?
2. Whether the petitioner is entitled for compensation ? If so, to what extent and from whom ?
3. What Order or award?
5. The petitioner got examined himself as P.W.1. Ex's.P1 to P26 were marked. Dr.Krishan Prasad S/o B.R Prasad, Orthopaedic Surgeon at Hosmat Hospital was examined as PW.2. Ex's.P27 to 31 were marked through him. Sri Gundu A Savaratkar S/o Annappa working as Legal Retainer at ICICI Lombard General Insurance Company Limited was examined as PW.3. Ex's.P32 to 34 were marked SCCH-24 5 MVC No.6021/2018 through this witness. In order to prove its defence, the Respondent No.2 got examined its AMTLegal Claims as RW.1. Ex's.R.1 to 3 were marked on behalf of the Insurance Company.
6. Oral arguments were addressed on both sides. Perused the entire materials placed on record. My answers to the above issues are as follows: Issue No.1: In the Affirmative Issue No.2: Partly in the affirmative Issue No.3: As per final order for the following REASONS
7. ISSUE NO.1: In order to prove that the accident occurred due to the actionable negligence on the part of the driver of offending vehicle, the petitioner who examined himself as PW.1, relied upon the police & medical documents marked at Ex's.P.1 to 10. Ex.P.1-FIR & Ex.P.2Complaint corroborate the occurrence and information of the accident. The contents of the panchanama (Ex.P.5) make it clear that the accident occurred due to rash & negligent driving of the driver of the offending vehicle. Ex.P.10Wound certificate SCCH-24 6 MVC No.6021/2018 discloses that the petitioner sustained grievous injuries in a Road Traffic Accident.
8. The IMV report (Ex.P.6) goes to show that at the time of inspection no visible damages were found on the offending vehicle. However the said exhibit reveals that the petitioner's vehicle sustained the following damages: (i) Scratch mark found on head light mask and right hand side crash guard. Just because no damages were caused to the bus, it cannot be concluded that it was not at all involved in the accident. Be that as it may, the IMV Inspector has opined that the accident was not due to any mechanical defects of the vehicles involved in the accident. Therefore the driver of the offending vehicle did not have sufficient cause to cause the accident. The fact that yet he went and dashed against the petitioner's motorcycle leads to drawing of an inference that he was driving his vehicle rashly and negligently. Hence the jurisdictional police have also filed chargesheet (Ex.P9) against him for the offences punishable under section's 279 & 338 of IPC. There is nothing on record to believe that the chargesheet filed by the police is defective or collusive.
9. Perusal of the crossexamination by the learned counsel appearing for respondent No.2 goes to show that the SCCH-24 7 MVC No.6021/2018 factum of accident is not denied by the Insurance Company. Only suggestions were made to the effect that the accident occurred due to negligence on the part of petitioner himself, which were outrightly denied. Except putting in this suggestion, nothing worthwhile was elicited from PW.1's mouth to dislodge the ocular and documentary evidence adduced by him.
10. On the other hand the owner of offending vehicle did not contest the petition. Accordingly an adverse inference could be drawn against her that she has impliedly admitted the petition averments. Though the Insurance Company denied the cause of the accident, it has not let in any cogent evidence to prove its defence or to disprove the evidence led by the petitioner. Further, it did not make any attempt to examine the driver of offending vehicle, who is the best witness to depose about the cause of accident. There is no explanation to that effect. Nonexamination of driver of offending vehicle is fatal to the defence of the Insurance Company.
11. In addenda, in a claim for compensation u/s 166 of M.V Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and proof beyond reasonable SCCH-24 8 MVC No.6021/2018 doubt is not required as held by the Hon'ble Apex Court in 'MANGALA RAM VS. ORIENTAL INSURANCE COMPANY reported in (2018) 5 SCC 656. With this observation issue No.1 is answered in the Affirmative.
12. ISSUE NO.2 :
As per the medical records petitioner has sustained the following injuries : (i) Right humerus midshaft fracture (ii) Right fracture olecranan (iii) Right radial head fracture + coronoid fracture (iv) Right midshaft ulna fracture (v) Right 4th and 5th metacarpal fracture (vi) Right distal palmar artery injury. It is needless to say that the said injuries are grievous in nature.
13. The Discharge summaries issued by Hosmat Hospital, Bengaluru which are marked at Ex's.P.11 to 14 indicate that the petitioner was treated as an inpatient in the said hospital for the periods from 07.09.2018 to 17.09.2018 ; 16.12.2018 to 18.12.2018 ; 27.06.2019 to 29.06.2019 and 26.09.2018 to 29.09.2018 (21 days in total). During the course of treatment he had undergone surgeries in the form of : ORIF with DCP right humerus (12 holed) + ORIF with right ulna DCP (3 holed) + right radial artery embolectomy + SCCH-24 9 MVC No.6021/2018 right digital artery repair + W/D right elbow and hand on 07.09.2018 ; Right ICD Insertion on 10.09.2018 and ORIF olecranan with cobra plate + SSG right forearm on 12.09.2018.
14. It is the definite assertion of the petitioner that owing to the accidental injuries he has become permanently disabled. Therefore he examined an Orthopedic Surgeon by name Dr. Krishan Prasad as PW.2 who deposed that on clinical examination, he found that the petitioner has 73% disability to the upper lower limb and 24% whole body physical disability.
15. LOSS OF INCOME DURING LAIDUP PERIOD & LOSS OF FUTURE INCOME DUE TO DISABILITY: Now it is to be seen whether the aforesaid disability impairs the avocation of the petitioner. As per the averments made in his evidence affidavit, at the time of accident the petitioner was working as an Associate Professor (Chemistry) at Nitte Meenakshi Institute of Technology, Bengaluru and thereby earning Rs.73,000/ p.m. To substantiate the same he has produced his Bank account statement, Certificate issued by Nitte Meenakshi Institute of Technology, Bengaluru & ID card which are marked at Ex's.P.19, 20 & 26 respectively.
SCCH-24 10 MVC No.6021/2018However the pay slips are not produced to show the exact salary that was being received by the petitioner. Be that as it may, the petitioner admitted in the course of his cross examination that he has continued his profession. The relevant portion is culled out as follows : "ನನನನ ಈಗ ನಟಟಟಟ ಮಟನನಕಕ ಇನನನ ಟಟಟಟನ ಆಪನ ಟಟಕನಕಲಜಯಲಲ ಕಟಲಸ ಮನಡನತತದಟದಟನಟ . ಈಗ ನನಗಟ ತತಗಳಗಟ ರಟ.73000/ ವಟಟತನ ಬರನತತದಟ. ಅಪಘನತಕಕತತ ಪಪರರದಲಲ ನನಗಟ ರಟ.60,000/ ವಟಟತನ ಬರನತತತನತ."
16. Ex.P.20 is a certificate issued by the Principal of Nitte Meenakshi Institute of Technology, Bengaluru certifying that the petitioner was sanctioned Earned Leave from 07.09.2018 to 26.06.2018 and was on loss of pay from 27.09.2018 to 09.11.2018. But it is pertinent to note that Ex.P.20 is not proved in accordance with law. To put it differently, the author of Ex.P.20 is not examined before the Court. Hence no credence can be attached to the contents made therein. The discussion supra goes to show petitioner has neither been terminated from his job on account of accidental injuries nor he has suffered any financial loss during the laidup period. Therefore no compensation is awarded to the petitioner under the head 'loss of income during laidup period'. It is also clear that the claimant does SCCH-24 11 MVC No.6021/2018 not have any functional disability. Under these circumstances the question of calculating the loss of future income due to disability also does not arise. Relying upon the ratio laid down in ILR 2010 KAR 2439 (Subhash V/s The New India Assurance Co.Ltd), no compensation is awarded under the head of 'Loss of future income due to disability'.
17. However it should be remembered that the petitioner has suffered physical disability to the extent of 24% to the whole body. Placing reliance upon the decision reported in ILR 2015 KAR 167 (Dr.Yeshwant Dongre V/s Salman Rasheed & others), I deem it just & proper to award a compensation of Rs.2,00,000/ towards the disability suffered by the petitioner.
18. PAIN & SUFFERINGS: Petitioner has suffered multiple fracture injuries. As such, necessarily he had undergone pain and mental agony. Thus, this tribunal awards a sum of Rs.1,00,000/ under this head.
19. LOSS OF FUTURE AMENITIES AND HAPPINESS:
The age of the petitioner was 36 years at the time of accident. Unfortunately, at such young age he has suffered whole body disability to the extent of 24%, with which he has to lead his SCCH-24 12 MVC No.6021/2018 entire life. Therefore, I deem it just and proper to award Rs.1,00,000/ under this head.
20. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD & CONVEYANCE CHARGES: It cannot be disputed that during the course of his treatment the petitioner might have spent some amount towards attendant charges, conveyance, extra nutritious food etc. Hence a sum of Rs.30,000/ under this head.
21. MEDICAL EXPENSES: Petitioner has produced 50 Medical bills as per Ex.P.15 amounting to Rs.2,52,869/ in total, which are supported by prescriptions marked at Ex.P.17. Nothing worthwhile was elicited during the cross examination of petitioner, so as to doubt the genuineness of the medical bills. However a careful perusal of these bills goes to show that the Fibre glass measuring 12.5 cm (2 in no's) that was purchased vide bill at Sl.No.38 is returned by way of bill at Sl.No.39. Accordingly an amount of Rs.2,520/ paid through bill at Sl.No.38 is refunded. Yet the petitioner has included both these bills in his calculation memo. Excluding the total of bills, the petitioner is entitled to Rs.2,47,829/ SCCH-24 13 MVC No.6021/2018 (2,52,869 - 5,040) which is rounded off to Rs.2,48,000/ towards medical expenses.
22. FUTURE MEDICAL EXPENSES: PW.2 has deposed that the petitioner requires to undergo following surgeries :
(i) bone grafting of right humerus which will cost Rs.80,000/ and (ii) implant removal from right forearm and right humerus which will cost around Rs.1,20,000/. True it is that no estimation is produced to show the future medical expenses. But the petitioner would require to underogo future surgeries, for which he has to necessarily bear certain expenses. The claim can be awarded only once. The claimant cannot come back to the Tribunal for enhancement of award at a later stage praying that something extra has been spent.
Taking into account all these factors the petitioner is entitled to Rs.1,00,000/ towards future medical & other incidental expenses.
23. The calculation table stands as follows :
1 Loss of income during : Nil laidup period & loss of future income due to disability 2 Towards Disability : 2,00,00000 3 Pain and sufferings : 1,00,00000 SCCH-24 14 MVC No.6021/2018 4 Loss of future amenities & : 1,00,00000 happiness 5 Attendant charges, extra : 30,00000 nutritious food & conveyance charges 6 Medical Expenses : 2,48,00000 7 Future Medical Expenses : 1,00,00000 Total 7,78,00000
24. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% p.a, is awarded, it would meet the ends of justice.
25. Respondent No.1 is the owner of the Bus bearing Reg.No.KA51D6354. The respondent No.2 being the insurer of the said vehicle is liable to indemnify the RC owner. For these reasons they are jointly and severally liable to pay the aforesaid award amount to the petitioner together with interest @ 6% p.a. from the date of claim petition till realization of the entire amount. However the respondent No.2 being the insurer is primarily liable to satisfy the award amount together with interest within one month from the date of this order. Hence this issue is answered as 'Partly in the affirmative'.
SCCH-24 15 MVC No.6021/201826. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled to get compensation of Rs.7,78,000/ (Rupees Seven Lakhs Seventy Eight thousand only) with interest at the rate of 6% p.a. from the date of petition till realization of the entire award amount.
The respondent No.2 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
Out of the amount so awarded, 25% of the compensation amount with proportionate interest shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining SCCH-24 16 MVC No.6021/2018 75% amount with proportionate interest shall be released to him through Epayment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/.
Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 28th day of February 2022).
(Ashwini M.Hattiholi) C/c XXII Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioners:
P.W.1 : Sri.Aravinda T. P.W.2 : Dr.Krishan Prasad. P.W.3 : Sri.Gunda A Savaratkar
List of documents got marked for the petitioners:
Ex.P.1 : True copy of FIR.
Ex.P.2 : True copy of Complaint.
Ex.P.3 : True copy of further statement recorded by
the police.
Ex.P.4 : True copy of Rough Sketch.
Ex.P.5 : True copy of Spot Mahazar.
Ex.P.6 : True copy of IMV report.
Ex.P.7 : True copy of Notice issued u/s 133 of IMV Act.
Ex.P.8 : True copy of Reply to above notice.
SCCH-24 17 MVC No.6021/2018
Ex.P.9 : True copy of Chargesheet.
Ex.P.10 : True copy of Wound certificate.
Ex.P.11 to : Discharge summaries(4 in no's) P.14 Ex.P.15 : Medical bills for Rs.2,52,869/(50 in no's).
Ex.P.16 : Advance bills (9 in no's).
Ex.P.17 : Prescriptions (13 in no's).
Ex.P.18 : OPD records including scanning reports and
blood reports.
Ex.P.19 : Bank Account statement of the petitioner.
Ex.P.20 : Certificate issued by Nitte Meenakshi Institute of
Technology, Bengaluru.
Ex.P.21 : OPD
Ex.P.22 & : Photos with CD (12 in no's).
P.22(a)
Ex.P.23 : Notarized copy of Aadhaar card.
Ex.P.24 : Notarized copy of DL.
Ex.P.25 : Notarized copy of PAN card.
Ex.P.26 : Notarized copy of ID card.
Ex.P.27 : Recent Clinical note.
Ex.P.28 : OPD book.
Ex.P.29 : Inpatient case sheets (3 in no's).
Ex.P.30 : Recent Xray films (5 in no's).
Ex.P.31 : Old Xray films (14 in no's).
Ex.P.32 : Authorization letter.
Ex.P.33 : Settlement letter.
Ex.P.34 : AnnexureI.
SCCH-24 18 MVC No.6021/2018
List of witnesses examined for the respondent/s:
RW.1 : Shreyas Bhat.
List of documents marked for the respondent/s:
Ex.R.1 : Authorization letter.
Ex.R.2 : True copy of the policy with terms and conditions.
Ex.R.3 : True copy of MLC intimation dt.06.09.2018.
(Ashwini M.Hattiholi)
C/c XXII Addl. Small Causes Judge
& ACMM, Bengaluru.
SCCH-24 19 MVC No.6021/2018
28.02.2022
Judgment pronounced in open Court
(vide separate Order)
ORDER
The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled to get compensation of Rs.7,78,000/ (Rupees Seven Lakhs Seventy Eight thousand only) with interest at the rate of SCCH-24 20 MVC No.6021/2018 6% p.a. from the date of petition till realization of the entire award amount.
The respondent No.2 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
Out of the amount so awarded, 25% of the compensation amount with proportionate interest shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 75% amount with proportionate interest shall be released to him through Epayment on proper identification and verification.
Advocate fee is fixed at Rs.1,000/.
Draw award accordingly.
(Ashwini M.Hattiholi) C/c XXII Addl. Small Causes Judge & ACMM, Bengaluru.
SCCH-24 21 MVC No.6021/2018