Bangalore District Court
In Mr. Alexandar.K vs In The Managing Director on 23 August, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 23rd DAY OF AUGUST, 2016
PRESENT: SRI. CHANDRASHEKARA.P.S, B.Com., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.3976/2015 & MVC 4265/2015
PETITIONER IN Mr. Alexandar.K,
MVC 3976/2015: S/o. Late. Kanakaraj,
Aged about 24 years,
Residing at No.307,
Govidnachatty Choultry,
Thimmaiah road Cross,
Bangalore - 51.
Permanent Address
No.46, Elim Nagar North,
Poonga St Perungudi,
Chennai - 600 096.
PETITIONER IN Mr. Stephen Raj.R,
MVC 4265/2015: S/o. Rajkumar,
Aged about 15 years,
Residing at No.307,
Govidnachatty Choultry,
Thimmaiah road Cross,
Bangalore - 51.
Since petitioner being minor,
Hence, represented by mother
and natural guardian,
Smt. Malathi, W/o. Rajkumar.
(Sri. Suresh M. Latur -------Advocate)
- V/S -
RESPONDENT IN The Managing Director,
BOTH THE CASES: BMTC, K.H.Road,
Bangalore - 560 27.
(Exparte)
SCCH - 11 2 MVC 3976/2015 &
4265/2015
COMMON JUDGMENT
These two petitions are came to be filed by the petitioners
under Section 166 of Motor Vehicle Act claiming compensation of
Rs.15,00,000/- each with interest at the rate of 12% p.a. from
the date of accident till the date of realization on account of the
personal injuries sustained by the petitioners in the Motor
accident that took place on 07.09.2015.
2) Since these petitions are arisen out of one accident,
they are clubbed together and common evidence was recorded in
MVC No.3976/2015.
3) The brief facts of the petitioners case are as follows:
That on 07.09.2015 at about 9.30 am., the petitioners were
proceeding in a motor cycle bearing Regn.No.KA-01-ER-4020
near Nethaji and Kemp road junction, Shivajinagar, Bengaluru
city. The Petitioner in MVC 3976/2015 was riding the motor
cycle and Petitioner in MVC 4265/2015 was a pillion rider. At
that time, a BMTC bus bearing Regn.No.KA-57-F-0253 driven by
its driver came in rash and negligent manner endangering to
human life and dashed against motor cycle from behind. As a
result, the Petitioners fell down and sustained grievous injuries.
Immediately after the accident, they were shifted to nearby
SCCH - 11 3 MVC 3976/2015 &
4265/2015
Santosh Hospital where first aid treatment was given, later they
shifted to Hosmat Hospital, Bangalore for better treatment. The
petitioner in MVC No.3976/2015 was working as an fitness
equipment serviceman at Sports Line shop, Treadmill service,
Bangalore and thereby earning Rs.8,000/- per month. Due to
the said accident, he could not attend his job as such, he has
lost his income. Because of the accidental injuries he suffered
permanent disability and thereby by lost his earning capacity
and future income. The petitioner in MVC No.4265/2015 is a
student in studying 9th standard at Seventh Day Adventist
School, Coles park, Bangalore. Due to the accidental injuries, he
is not able to continue his study as such he lost his precious
educational academic year. The accident occurred due to the
rash and negligent driving of the bus by its driver. Hence the
respondent is liable to pay the compensation. Hence they prayed
for allowing the petition.
4) After service of notice, respondent has appeared
through its advocate and contested the claim of the petitioner by
filing written statement, wherein he denied the allegations made
in the petition as false and frivolous. He has further disputed
the manner of accident, nature of the injuries sustained by the
petitioner and also quantum of compensation claimed under the
SCCH - 11 4 MVC 3976/2015 &
4265/2015
different heads. He has further contended that, the alleged
accident occurred due to the rash and negligent riding of the
motor cycle by the petitioner themselves and they are solely
responsible for the said accident. Hence, he is not liable to pay
any compensation. Therefore, it is prayed for dismissal of the
petition.
5) On the basis of the above rival pleadings, the
following issues have been framed:
ISSUES IN MVC 3976/2015:
1. Whether petitioner proves that, he
sustained grievous injuries due to the
negligence on the part of the driver of
offending vehicle bearing
No.KA-57-F-0253 on 07.09.2015 at about
9.00 am., near Nethaji road and Kemp
Road Juction, Shivajinagar, Bengaluru
City, when he was riding motor cycle
bearing No.KA-01-ER-4020 along with
pillion rider?
2. Whether claim petition is bad for
non joinder for necessary parties?
3. Whether petitioner is entitled for
the compensation as prayed in the claim
petition? If so, what is quantum of
compensation?
4. What Order or award ?
SCCH - 11 5 MVC 3976/2015 &
4265/2015
ISSUES IN MVC 4265/2015:
1. Whether petitioner proves that, he
sustained grievous injuries due to the
negligence on the part of the driver of
offending vehicle bearing No.KA-57-F-
0253 on 07.09.2015 at about 9.00 am.,
near Nethaji road and Kemp Road
Juction, shivajinagar, Bengaluru City,
when he was proceeding motor cycle
bearing No.KA-01-ER-4020 as a pillion
rider?
2. Whether claim petition is bad for
non joinder for necessary parties?
3. Whether petitioner is entitled for
the compensation as prayed in the claim
petition? If so, what is quantum of
compensation?
4. What Order or award ?
6) During the course of trial, in order to prove the
petitioner's case, petitioner in MVC No.3976/2015 has filed
affidavit in lieu of examination-in-chief and examined as PW.1.
Since the Petitioner in MVC No.4265/2015 was minor, his
natural guardian i.e. mother has filed affidavit in lieu of
examination-in-chief and examined PW.2. Besides their
evidence, they have examined the Doctor who treated them as
PW.3 and also examined one independent witness as PW.4. To
disprove the petitioner's case and prove its case, respondent has
examined the driver of the KSRTC bus as RW.1 but no
SCCH - 11 6 MVC 3976/2015 &
4265/2015
documents are produced on its behalf and closed its side
evidence.
7) I have heard the arguments of learned counsel
appearing for the petitioners and respondent.
8) My findings to the above issues are as follows:
[
In MVC 3976/2015
Issue No.1 : In the affirmative;
Issue No.2 : In the Negative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled for compensation of
Rs.2,88,400/- with interest @ 6%
p.a. from the date of petition till
realization, from respondent.
Issue No.4 : As per final order, for the following:
In MVC 4265/2015
Issue No.1 : In the affirmative;
Issue No.2 : In the Negative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled for compensation of
Rs.2,32,350/- with interest @ 6%
p.a. from the date of petition till
realization, from respondent.
Issue No.4 : As per final order, for the following:
REASONS
9) ISSUE NO.1 IN BOTH CASES: Since these issues
are inter connected, to avoid the repetition, they have been taken
SCCH - 11 7 MVC 3976/2015 &
4265/2015
together for discussion. It is the specific case of the petitioners
that, they sustained grievous injuries in the accident that took
place on 07.09.2015 near Nethaji and Kemp road junction,
Shivajinagar, Bengaluru due to the rash and negligent driving of
the offending vehicle by its driver. In the instant case, there is
no dispute with regard to occurrence of the accident. However,
respondent disputed the negligence on the part of the driver of
the offending vehicle. When respondent disputed the negligence
on the part of the driver of the bus, it is for the petitioners to
prove the negligence of the driver of the BMTC bus. In order to
prove the negligence on the part of the driver of the bus, PW.1
and 2 have categorically stated in their evidence as to how the
driver of the bus driven the vehicle and the manner in which, the
accident occurred. According to them, due to the rash and
negligent driving of the bus by its driver, the said accident
occurred and he is solely responsible for the accident. In support
of their oral evidence, they have produced FIR, complaint, hand
sketch map, panchanama, IMV report and charge sheet as per
Ex.P.1 and 2 and Ex.P.4 to 7. On perusal of these documents,
Ex.P.1 indicates that, the criminal case was registered against
the driver of the bus for having driven the vehicle in a rash and
negligent manner. Ex.P.2 indicates that, one Bhaskar lodged
complaint against the driver of the bus for having driven the bus
SCCH - 11 8 MVC 3976/2015 &
4265/2015
in a rash and negligent manner. Ex.P.6 reveals that, the accident
not occurred due to any mechanical defect. Ex.P.7 reveals that,
the driver of the bus was charge sheeted for the offence
punishable Under Section 279 and 338 of IPC. On perusal of
these documents, it is crystal clear that, the accident occurred
only due to the rash and negligent driving of the bus by its
driver.
10) The oral testimony of PW.1 and 2 are coupled with the
documentary evidence of Ex.P.1 and 2 and Ex.P.4 to 7. Though
respondent has cross-examined the PW.1 and 2, nothing has
been elicited from them to disprove the negligence on the part of
the driver of the bus. Further, the registration of the criminal
case against the driver of the bus for having driven the vehicle in
a rash and negligent manner with high speed that itself prima
facie proves the actionable negligence on the part of the driver of
the bus.
11) RW.1 who is driver of the offending vehicle has stated
in his evidence that, the accident occurred due to the rash and
negligent riding of the motor cycle by its rider not due to his
negligent driving. He has further stated that, he is not
responsible for the accident however, the Petitioners have
colluded with police have filed false case against him.
SCCH - 11 9 MVC 3976/2015 &
4265/2015
Admittedly in the instant case, after investigation, the police
have filed Charge sheet against the driver of the bus. During the
course of cross-examination, RW.1 has categorically admitted
that, he has not challenged the Charge sheet field against him.
If at all, the accident occurred due to rash and negligent riding of
the motor cycle by its rider what prevented him to challenge the
Charge sheet filed against him. Under the circumstances, there
is no reason to believe the evidence of RW.1 to the effect that, the
accident occurred due to rash and negligent riding of the motor
cycle by its rider. Admittedly, except self serving statement of
RW.1 there is no iota of documents in support of his oral
evidence. On the other hand, documents produced by the
Petitioners would clearly indicates that, the accident occurred
due to the rash and negligent driving of the bus by its driver. In
view of the above discussion I am of the opinion that the
accident occurred due to rash and negligent driving of the bus
by its driver. Hence, I have no hesitation to record findings that,
the accident occurred due to the rash and negligent driving of
the bus by its driver. Therefore I answered this issue in the
affirmative.
12) ISSUE NO.2 IN BOTH CASES: It is the case of the
Respondent that, the owner and insurer of the motor cycle which
SCCH - 11 10 MVC 3976/2015 &
4265/2015
also involved in the accident are proper and necessary parties.
Without impleading them, the petition is bad for non-joinder of
necessary parties. While answering issue No.1, I have already
come to the conclusion that the accident occurred due to rash
and negligent driving of the bus by its driver and he is solely
responsible for the said accident. When such being the case, I
feel the owner and insurer of the motor cycle are not proper and
necessary parties and without their presence this tribunal can
determine the real controversy between the parties. Hence, I
answered this issue in the negative.
13) ISSUE No.3 in MVC No.3976/2015: According to
the petitioner in MVC No.3976/2015, he had sustained grievous
injuries as mentioned in wound certificate Ex.P.3. On perusal of
Ex.P.3 wound certificate, it goes to show that, he has sustained
the closed comminuted fracture left proximal ulna, left radial
neck forearm fracture, glenoid fracture left shoulder. According
to the Doctor, who examined the petitioner, the above said
injuries are grievous in nature. It has come in the evidence of
PW.1 that, he sustained the injuries as stated in Wound
certificate and took treatment as inpatient at Hosmat Hospital
from 07.09.2015 to 10.09.2015. During that period, he
subjected to expertise treatment.
SCCH - 11 11 MVC 3976/2015 &
4265/2015
14) PW.2, who is treated to the Petitioner, has stated in
his evidence that, the Petitioner sustained comminuted fracture
left ulna, displaced fracture radial neck left and fracture scapula.
He has further stated that, on 7.9.2015 open reduction and
internal fixation of the left ulna was done with plates and screws
and reduction of radial neck fracture left humerus. He has
further stated that, the Petitioner said that he is not working as
he cannot use his left upper limb to do any job. He said that he
has great difficulty in doing over head activities. He has further
stated that, by using the combined values chart and the
standard formula and with reference to the standard formula, he
assessed the 60 % disability to left upper limb and 20% to whole
body disability. Though he assessed 20% disability to whole
body, he has stated in his examination in chief itself that, the left
scapula fracture has healed with pain and stiffness left shoulder.
The left ulna fracture has united. In view of this, I feel that, the
disability assessed by the doctor is on the higher side. However,
taking into the disability assessed by the doctor to upper limb
and nature of the injuries I assessed 10% disability to whole
body.
15) According to the Petitioner he was doing fitness
serviceman at Sport line shop and thereby earning Rs.8,000/-.
SCCH - 11 12 MVC 3976/2015 &
4265/2015
To prove his avocation and income he has examined proprietor of
Sport line shop as PW.4. PW.4 has stated in his evidence that,
the Petitioner was working in his sport line shop and earning
Rs.11,200/- per month. During the course of cross-
examination, he has stated that, there is an entry in the balance
sheet regarding the payment of salary to his staff. Further he
has stated that, there is register for having paid the salary to his
staff. But nothing is placed on record to show how much of
salary has been paid to the Petitioner. In the absence of cogent
documentary evidence, it cannot be said that, the Petitioner was
drawing a salary of Rs.11,200/- as stated by PW.4 and his
evidence cannot be believed regarding the payment of salary.
However, considering the nature of the injuries, avocation and
age of the petitioner, I constrain to assess the income of the
petitioner at Rs.7,000/- per month. The age of the petitioner at
the time of the accident as mentioned in wound certificate was
24 years as on the date of accident. Hence, proper multiplier is
'18' as per Sarla Verma Case. Considering the income, age and
disability, if a sum of (Rs.7,000/- X 12 X 18 X 10/100)
Rs.1,51,200/- is awarded towards loss of earning capacity and
future income, it would meets the ends of justice. Hence, I
award Rs.1,51,200/- towards loss of earning capacity and
future income.
SCCH - 11 13 MVC 3976/2015 &
4265/2015
16) According to the petitioner, he sustained closed
comminuted displaced fracture proximal left ulna with displaced
fracture radial neck forearm, glenoid fracture left shoulder and
took treatment at Hosmat Hospital, Bangalore as inpatient from
07.09.2015 to 10.09.2015. Considering the nature of the
injuries and duration of the hospitalization, I feel the petitioner
has been put to some sort of inconvenience and discomfort and
he might have suffered pain and mental agony on account of
accidental injuries. Under the circumstances, it is reasonable to
award a sum of Rs.40,000/- and Rs.20,000/- towards pain and
suffering and loss of amenities in life. Accordingly, I award
Rs.40,000/- and Rs.20,000/- towards pain and suffering and
loss of amenities in life.
17) According to PW.1, he has spent more than
Rs.1,00,000/- towards medical expenses. In this regard, he has
produced medical bills at Ex.P.11, 29 in numbers. On perusal of
these medical bills, they indicates that, he has spent
Rs.53,204/-. Here, though respondent has cross-examined
PW.1, nothing has been elicited from him to disprove the
medical bills. In view of this, I award a sum of Rs.53,200/-
(rounded off) towards medical expenses.
SCCH - 11 14 MVC 3976/2015 &
4265/2015
18) It has come in the evidence of PW.1 he was hale and
healthy prior to the accident and was working as Fitness
Equipments Serviceman. Because of the accidental injury he
could not attend his duty during laid up period as such he lost
his income during that period. But noting is placed on record to
prove that, how much of days he was absent for his duty.
However, considering the nature of the injury and duration of
hospitalization he must have taken rest for a period of 2 months.
While discussing above, I have assessed the income of Petitioner
at Rs.7,000/ per month. Hence, I award Rs.14,000/- towards
loss of income during laid up period.
19) According to the petitioner, he has spent considerable
amount towards conveyance, attendant charges, food and
nourished food. But nothing is placed on record to substantiate
such fact. However, considering the nature of the injuries and
duration of hospitalization, I feel it is reasonable to award a sum
of Rs.10,000/- towards conveyance, attendant charges, food
and nourished food.
20) Thus in all, the petitioner is entitled to compensation
as under:
SCCH - 11 15 MVC 3976/2015 &
4265/2015
1) loss of earning capacity Rs. 1,51,200/-
and future income
2) Pain and sufferings Rs. 40,000/-
3) Loss of amenities in life Rs. 20,000/-
4) Medical expenses Rs. 53,200/-
5) Loss of income during Rs. 14,000/-
laid up period
6) Towards conveyance,
attendant charges, food
and nourished food Rs. 10,000/-
Total Rs. Rs. 2,88,400/-
21) ISSUE No.3 in MVC No.4265/2015: According to
the natural guardian of petitioner in MVC No.4265/2015, the
Petitioner sustained grievous injuries as mentioned in wound
certificate Ex.P.15. On perusal of Ex.P.15 wound certificate, it
goes to show that, he has sustained crush injury to left index
finger and middle finger. According to the Doctor, who examined
the petitioner, the above said injuries are grievous in nature. It
has come in the evidence of PW.2 that, the Petitioner sustained
crush injury to left index finger and middle finger and took
treatment as inpatient at Hosmat from 07.09.2015 to
12.09.2015. During that period, he was subjected to expertise
treatment and amputation of left middle finger done on 7.9.2015
and left index finger wound debridement and K wiring was done.
SCCH - 11 16 MVC 3976/2015 &
4265/2015
22) PW.3 who is the doctor treated the Petitioner has
stated in his evidence that, the Petitioner sustained crush injury
to left index finger and middle finger and his left middle finger
was amputated on 7.9.2015. He has further stated that, the
petitioner has said that since he was a student he lost one year
academic year. He has further stated that, because of accidental
injuries Petitioner has sustained 50% disability to upper limb
and 17% to whole body disability. Admittedly, the Petitioner is a
student and studying in 9th standard at the time of accident.
When he is a student it can be said that, he is not earning
member of the family. When he is not earning member, he is not
entitled for compensation under the head loss of earning
capacity and future income. However, since his left little finger
has been amputated and he has 17% disability to whole body
according to the doctor, he is entitled to compensation under the
head permanent disability. Hence, considering the amputation of
the middle finger and nature of the injuries and disability
assessed the by doctor, I award Rs.50,000/- towards
permanent disability.
23) According to the petitioner, he sustained fracture
injuries as mention in Wound certificate and took treatment at
Hosmat Hospital, Bangalore as inpatient from 07.09.2015 to
SCCH - 11 17 MVC 3976/2015 &
4265/2015
12.09.2015. Considering the nature of the injuries and duration
of the hospitalization, I feel, the petitioner has been put to some
sort of inconvenience and discomfort and he might have suffered
pain and mental agony on account of accidental injuries. Under
the circumstances, it is reasonable to award a sum of
Rs.40,000/- and Rs.20,000/- towards pain and suffering and
loss of amenities in life. Accordingly, I award Rs.40,000/- and
Rs.20,000/- towards pain and suffering and loss of amenities
in life.
24) According to the natural guardian of the Petitioner,
she has spent more than Rs.1,25,000/- towards medical
expenses. In this regard, she has produced medical bills at
Ex.P.17, 41 in numbers. On perusal of these medical bills, they
indicates that, she has spent Rs.1,12,319/-. Here, though
respondent has cross-examined PW.1, nothing has been elicited
from him to disprove the medical bills. In view of this, I award a
sum of Rs.1,12,350/- (rounded off) towards medical expenses.
25) It has come in the evidence of PW.2 that, the doctors
have advised to her son to wear artificial prosthesis in the middle
finger, the cost of which at Hosmat hospital at Rs.80,000/-. But
the doctor who treated the Petitioner has not stated in his
SCCH - 11 18 MVC 3976/2015 &
4265/2015
evidence that, the Petitioner was advised to wear artificial
prosthesis. In the absence of supporting oral as well as
documentary evidence, the evidence of PW.2 that petitioner is
required to wear artificial prosthesis for which she requires
Rs.80,000/- cannot be believed. In view of this I declined to
award compensation under the head future medical expenses.
26) According to the petitioner, he has spent considerable
amount towards conveyance, attendant charges, food and
nourished food. But nothing is placed on record to substantiate
such fact. However, considering the nature of the injuries and
duration of hospitalization, I feel it is reasonable to award a sum
of Rs.10,000/- towards conveyance, attendant charges, food
and nourished food.
27) Thus in all, the petitioner in MVC No.1100/2014 is
entitled to compensation as under:
1) Permanent disability Rs. 50,000/-
2) Pain and suffering Rs. 40,000/-
3) Loss of amenities in life Rs. 20,000/-
4) Medical expenses Rs. 1,12,350/-
5) Towards conveyance, Rs. 10,000/-
attendant charges, food and
SCCH - 11 19 MVC 3976/2015 &
4265/2015
nourished food
Total Rs. Rs. 2,32,350/-
28) The respondent being the owner cum insurer of the
said offending vehicle is liable to pay compensation to the
petitioners. So, I hold that petitioners in MVC No.3976/2015
and MVC No.4265/2015 are entitled for compensation of
Rs.2,88,400/- and Rs.2,32,350/- respectively along with interest
@ 6% p.a. from the date of petition till the date of realisation.
Accordingly, I answered this issue partly in affirmative in both
cases.
29) ISSUE No.4: In view of answers to issues No.1 to 3
in both cases, I proceed to pass the following:
ORDER
Petitions filed by the petitioners under Section 166 of Motor Vehicle Act are hereby partly allowed with costs.
Accordingly, a sum of Rs.2,88,400/- and Rs.2,32,350/- are awarded to the petitioners in MVC 3976/2015 and MVC No.4265/2015 respectively as compensation with interest at the rate of 6% p.a. from the date of petitions till the date of realization.
SCCH - 11 20 MVC 3976/2015 & 4265/2015 Respondent is liable to pay the said compensation. In order to indemnify the petitioners, the respondent shall deposit the compensation amount within a period of 30 days from this day.
In case of deposit of the awarded compensation by the respondent, 50% each shall be deposited in F.D in the name of petitioners in any nationalized or scheduled bank for the period of 3 years, failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore.
Remaining 50% each shall be released to the petitioners through account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/- in each case.
Office to draw award accordingly.
(Original copy of Judgment shall be kept in MVC 3976/2015 and copy of the same shall be kept in MVC 4265/2015.) (Dictated to the Stenographer, directly on computer, corrected and pronounced by me in open court on this 23rd day of August, 2016.) (CHANDRASHEKARA.P.S.) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH - 11 21 MVC 3976/2015 & 4265/2015 ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Alexandar.K PW.2 - Malathi PW.3- Dr. Krishna Prasad ( in both cases) PW.4- Bhaskar
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of FIR
Ex.P.2 - True copy of Complaint
Ex.P.3 - True copy of wound certificate
Ex.P.4 - True copy of hand sketch map
Ex.P.5 - True copy of panchanama
Ex.P.6 - True copy of IMV report
Ex.P.7 - True copy of charge sheet
Ex.P.8 - True copy of driving licence
Ex.P.9 - Discharge summary
Ex.P.10 - Certificated by Sports Line Shop
Ex.P.11 - 29 medical bills
Ex.P.12 - 16 physiotherapy bills
Ex.P.13&14- 2 X-rays
Ex.P.15 - True copy of wound certificate
Ex.P.16 - Discharge summary
Ex.P.17 - 41 medical bills
Ex.P.18 - 19 physiotherapy medical bills
Ex.P.19&20- 2 X-rays
Ex.P.21-23 - 3 photos
Ex.P.24 - One C.D
Ex.P.25 - Inpatient record
SCCH - 11 22 MVC 3976/2015 &
4265/2015
Ex.P.26 - Outpatient record
Ex.P.27 - Inpatient record
Ex.P.28 - Outpatient record
Ex.P.29-36- 8 X-rays
Ex.P.37-41 - 5 X-rays
Ex.P.42&43- Registration certificates
Ex.P.44&45- Registration certificate of establishment
WITNESSES EXAMINED FOR RESPONDENTS :
- NIL -
DOCUMENTS MARKED FOR RESPONDENTS :
- NIL -
I ADDL.SCJ. & MACT.