Bangalore District Court
Shakunthala K.M. Alias Shakunthalamma vs Kalaivani.N on 3 December, 2024
KABC020385812022
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH-4
PRESENT: Smt.Gayathri S Kate,
B.Com., LL.B.,
XVIII ADDL., JUDGE & ACJM,
Court of Small Causes,
BENGALURU.
Dated this the 3rd day of December-2024
MVC No.7300/2022
PETITIONERS: Smt.Shakunthala.K.M.,
alias Shakunthalamma,
W/o Muniraju,
Aged about 30 years,
Residing at:
Korachanoor village,
Bavanahalli Post,
Malur Taluk,
Kolar District.
(By Sri.NM., Adv.,)
V/s
RESPONDENTS: 1.Smt.Kalaivani.N,
W/o Rajkumar,
Major by age,
SCCH-4 2 MVC No.7300/2022
R/at No.112,
Periyapatty Road,
S.P.Pudur,
Namakkal District,
Tamilnadu-637 001.
(Exparte)
2.National Insurance Company
Ltd.,
Regional Office,
Shubaram Complex,
M.G.Road,
Bengaluru-01.
(By Sri.KS., Adv.,)
JUDGMENT
The petitioner has filed the present claim petition against the respondents under section 166 of MV Act seeking compensation towards the accidental injuries from date of accident till the date of payment together with cost and interest.
2. The factual matrix of the petition in the nutshell is as follows:
SCCH-4 3 MVC No.7300/2022
On 21.11.2022 at about 7.30 a.m., the petitioner was proceeding in her motor cycle bearing Reg.No.KA-08- X-9892 near super Gas Godown on Bavanahalli-Honda Company road, Malur Taluk, Kolar. At that time one gas tanker lorry bearing Reg.No.TN-88-A-9559 came in rash and negligent manner from opposite direction and suddenly took right turn without giving any traffic indications. As a result the driver of the said lorry lost control over his vehicle and dashed against the petitioner vehicle. Due to the impact of accident, the petitioner fell down and sustained grievous injuries.
3. Immediately after the accident, the petitioner was shifted to Government Hospital, Malur wherein first aid treatment was given and thereafter shifted to Silicon City Hospital, Hosakote wherein she was admitted as in inpatient. X-ray report reveals that petitioner sustained anterior dislocation of right hip, comminuted proximal 1/3rd shaft fracture of humerus with wrist drop were SCCH-4 4 MVC No.7300/2022 noticed and she was discharged with an advice for continuing follow up treatment with complete bed rest.
4. The petitioner further pleaded that she has incurred Rs.2,00,000/- towards hospitalization, conveyance, medical treatment, attendant, nursing care and other incidental expenses. She is in need of future medical treatment and other incidental expenses.
5. Petitioner further submits that, she was hale and healthy and was aged about 30 years as on the date of accident. She was working Housekeeping work and was earning Rs.25,000/- per month. She was maintaining her family out of said source of income and was a sole bread earner to her family. Due to the accidental injuries she could not able to do any kind of work compared to her previous strategy. The disability sustained in the accident has impacted on her earning capacity and as such herself and her family have suffered a lot by mentally, physically and financially. SCCH-4 5 MVC No.7300/2022
6. The accident has taken place due to the rash and negligent driver of the respondent No.1, who drive his vehicle bearing Reg.No.TN-88-A-9556. The respondent No.1 is the owner and respondent No.2 is the insurer of the said vehicle thereby the vicarious liability is operated on respondent No.2 on the indemnified contract and as such, the respondents are liable to pay the compensation.
7. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle, are jointly severally liable to pay the compensation to the petitioner. Hence, prays to award compensation of Rs.20,00,000/- with interest from the date of accident till realization.
8. After registration of the petition, notices were issued against respondents. Inspite of service of the notice, the respondent No.1 has not appeared before this court. Hence, after due service of notice against the respondent No.1, the respondent No.1 is placed exparte. SCCH-4 6 MVC No.7300/2022 In pursuance of service of notice the respondent No.2 has appeared through their counsel and has filed their written statement on behalf of respondent No.2 by denying the entire petition averments. The respondent No.2 further pleaded that the insurance policy was in force as on the date of the accident and liability if any is subjected to terms and conditions of the policy. Further denied the age of the petitioner, avocation, income, injuries sustained, treatment underwent by the petitioner, disability certificate obtained by the petitioner, medical expenses, conveyance and nourishment of the said petitioner. Further denied the other contents of the petition. The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, prays to dismiss the petition.
9. In order to substantiate her claim, the petitioner got examined herself as PW.1 and got marked 15 documents as per Ex.P.1 to Ex.P.15. In addition to her SCCH-4 7 MVC No.7300/2022 evidence, the petitioner got examined the doctor, who has issued disability certificate for the injuries sustained by the petitioner as PW.2. Thereby the evidence of petitioner side was completed and case was posted for respondent evidence. On 15.11.2024 leaned counsel for the respondent No.2 has submitted that there is no respondent evidence on behalf of respondents. Hence, prayed to post the case for the arguments. Prayer was taken on record. As per the prayer of learned counsel for respondent No.2, the respondent evidence was taken as closed and the case was posted for arguments.
10. Heard the arguments on both side and perused the materials on record.
11. Based on the above said pleading, this tribunal has framed the following issues:
1. Whether the petitioner proves that, she has sustained grievous injuries due to the actionable negligent driving of Gas Tanker bearing Reg.No.TN-88- SCCH-4 8 MVC No.7300/2022
A-9559 by its driver, in RTA took place on 21.11.2022 at about 7.30 a.m., on Bavanahalli-Honda Company Road, near Super Gas Godown company, Malur Taluk, Kolar?
2. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
3. What Order or Award?
12. My findings on the above issues are as under.
Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the affirmative,
Issue No.3 : As per the final orders
for the following:-
: R E A S O N S:
ISSUE NO.1 :
13. The petitioner has made stand towards fact and factum of the accident that on 21.11.2022 at about 7.30 a.m., the petitioner was proceeding in her motor cycle bearing Reg.No.KA-08-X-9892 near super Gas Godown on Bavanahalli-Honda Company road, Malur Taluk, Kolar. At that time one gas tanker lorry bearing Reg.No.TN-88-A-9559 came in rash and negligent SCCH-4 9 MVC No.7300/2022 manner from opposite direction and suddenly took right turn without giving any traffic indications. As a result the driver of the said lorry lost control over his vehicle and dashed against the petitioner vehicle. Due to the impact of accident, the petitioner fell down and sustained grievous injuries.
14. The petitioner has claimed compensation against the respondents urging that the alleged accident took place on the alleged date, time, place and thereby the petitioner was called upon to substantiate the said stand.
15. By responding to the one way burden the petitioner has come up with oral and documentary evidence. The petitioner examined herself as PW.1 and got marked 15 documents in total on her behalf. Further, PW.1 has got marked 11 documents on her behalf as per Ex.P.1 to Ex.P.11. Further, the petitioner got examined doctor as PW.2, who has issued disability certificate to SCCH-4 10 MVC No.7300/2022 her and got marked 4 documents through the said PW.2 as per Ex.P12 to Ex.P15. In his chief-examination, PW.1 has reiterated the petition averments and has specifically stated that, the alleged accident has occurred due to rash and negligent driving of the offender vehicle.
16. The petitioner was subjected to cross- examination by learned counsel for respondent No.2. During the course of cross-examination of PW.1 nothing was elicited from the mouth of PW.1, so as to disbelieve his version.
17. The accident in question is not in dispute. Whereas Ex.P.1 is the FIR, Ex.P.2 is the complaint, Ex.P.3 is the spot mahazar, Ex.P.4 is the IMV report, Ex.P6 is the charge sheet which clearly shows that, on the alleged date, time and place of the accident has occurred and in the said accident the offender vehicle is involved in the occurrence of the same. SCCH-4 11 MVC No.7300/2022
18. The above referred documents clearly indicates that, the accident took place due to the rash and negligent driving of the respondent No.1 offender vehicle bearing Reg.No.TN-88-A-9559. It is clear from the records that petitioner has sustained grievous injuries and extended with treatment. There is no any adverse material available to disbelieve the stand taken by the petitioner to the extent of the factum of accident as introduced by her. Thus, this tribunal has answered Issue No.1 in the affirmative.
ISSUE NO.2:
19. The petitioner has claimed compensation for a sum of Rs.20,00,000/- with interest from the date of accident till its realization. On the basis of the materials on record, it is necessary to examine claim of petitioner in appropriate manner. In support of the case petitioner has come up with various materials. As such it is SCCH-4 12 MVC No.7300/2022 necessary to examined the materials on record in the parameter of pecuniary and non-pecuniary character.
1. Pecuniary loss:- This head of compensation includes compensation towards the loss of earning capacity, medical and future medical expenditure, expenditure incurred towards conveyance allowance, attendant charges, special diet and other miscellaneous expenditure. As such these aspects are to be examined by examining the available materials on record.
(A) Loss of earning capacity and loss of future income/earnings:-
In order to determine the compensation under this head, it is necessary to consider the age of injured person, occupation, quantum of income, nature of injuries, percentage of disability and multiplier applicable are to be worked out on the available materials. SCCH-4 13 MVC No.7300/2022
(i) The age and applicable multiplier:- The petitioner has contended in his petition that, as on the date of accident he was aged about 30 years. The material pertaining to Cr.No.515/22 and other medical documents contemplated as on the date of accident, the petitioner was aged about 30 years. In addition to that, the petitioner has placed his reliance on the copy of aadhar card. The said aadhar card reflected the date of birth of petitioner as 09.02.1988. The accident has occurred on 21.11.2022. Upon computing the age of the petitioner based on all these materials, it clearly shows that, the petitioner is aged of 34 years as on the date of occurrence of accident.
As per the documentary evidence available on record, the age of the petitioner is considered as 34 years as on the date of the accident. Applying the law laid down by the Hon'ble Apex Court in Sarla Verma and others V/s Delhi Transport Corporation and Others Case SCCH-4 14 MVC No.7300/2022 reported in 2009 ACJ SC 1298, the multiplier of 16 is applicable to the present content. Hence, the multiplier of 16 is considered to determine the claim made herein.
(ii) The occupation of petitioner and quantum of income:- The petitioner has contended that, prior to the accident she was hale and healthy and was Housekeeping work and she was earning Rs.25,000/- per month. She has not produced any documents to prove the said income. Hence, in the absence of express proof, it is necessary to determine the income of the petitioner based on the principles of notional income.
The Karnataka State Legal Service Authority has fixed a chart for notional income. By placing reliance on the said income slab. The income of the petitioner is to be determined. As per the said chart the income of the petitioner is considered as Rs.15,500/- per month as operated to the year 2022. The annual income of the petitioner shall arrive at Rs.1,86,000/- (Rs.15,500 X 12) SCCH-4 15 MVC No.7300/2022
(iii) Nature of injury and percentage of disability:- To prove the nature of injuries sustained by the petitioner she has examined one doctor Imran Hussain., Orthopedic Surgeon at Gaurav Orthopedic and Surgical Hospital, Kolar, is examined as PW.2 and got marked 4 documents as per Ex.P.12 to Ex.P.15. PW.2/doctor has deposed that, the petitioner has sustained anterior dislocation of right hip and comminuted proximal 1/3rd shaft fracture of humerus with wrist drop. This witness has opined that, petitioner has sustained total disability of right upper limb at 42% and permanent physical disability to the whole body at 14%. The injuries are permanent in nature. Petitioner has contended that, she is a Housekeeping and assessed disability causes effect on the avocation of petitioner. Hence, the disability is considered at 14%. The said extent of disability is considerable to determine the compensation under this head.
SCCH-4 16 MVC No.7300/2022
Annual income X Multiplier X permanent physical disability = Loss of earning capacity.
Rs.1,86,000 X 16 X 14/100= Rs.4,16,640/-. Thereby the petitioner is entitled to compensation of Rs.4,16,640/- towards loss of earning capacity and future earnings.
The petitioner being a Housekeeping and contended that, she used to earn Rs.25,000/- per month. As the petitioner has not produced any documents to prove her income. In the absence of proof, the notional income is considered as Rs.15,500/- per month. Under the circumstances, the per day income of the petitioner would arrive at Rs.517/-.
As per the discharge summary the petitioner was admitted to hospital as an inpatient for 13 days and after discharge from the hospital there must be necessary to take bed rest for at least 47 days. So, the petitioner is SCCH-4 17 MVC No.7300/2022 entitled to compensation towards laid up period with one attendant charge at the same rate which comes to Rs.62,040/- (60 days X 517 = Rs.31,020 + 31,020).
(B) Medical expenditure:-
The petitioner contended that, she has incurred Rs.2,00,000/- towards hospitalization, conveyance, medical treatment, attendant and nursing care expenses. The petitioner has placed his reliance on medical bills. On perusal of the same it is arrived at Rs.4,05,649/- as per Ex.P.11.
(C) Future medical expenditure The petitioner has claimed compensation towards future medical expenditure for follow up treatment. The medical record shows that the petitioner required further medical expenses.
In Nagaappa V/s Gurudayal Singh (2003) 2 SCC 274 the Hon'ble Supreme Court has held that SCCH-4 18 MVC No.7300/2022 "M.V.Act does not provide for passing of further award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalisation of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, Tribunal/Court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guess-work after taking into account increase in the cost of medical treatment. It would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed."
Further, in Laxman @ Laxman Mourya V/s Divisional Manager, Oriental Insurance Company SCCH-4 19 MVC No.7300/2022 Ltd., and another reported in (2011) 10 SCC 756 the Hon'ble Apex Court has categorically stated that "there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claim amount."
Therefore, this tribunal arrives at conclusion that the petitioner required future medical expenses of Rs.40,000/- under this head.
(D) Conveyance allowances, attendant charge and special diet:-
As per the available material it is clear that the petitioner was under treatment for a period of 13 days with extended follow up treatment. This shows that petitioner has incurred expenditure towards conveyance to meet her treatment.
In Master Ayush v. Branch Manager, Reliance General Insurance Company Limited and Another, SCCH-4 20 MVC No.7300/2022 (2022) 7 SCC 738 the Hon'ble Supreme Court has held that:
"The compensation under the head of conveyance ought to be granted on the higher side as the appellant was completely disabled and must have received help from family members or friends to get admitted at the hospital and back. Therefore, it would be reasonable to award conveyance charges of Rs.50,000/-."
Applying the same formula to the case on hand, it is necessary to award compensation of Rs.50,000/- towards conveyance.
Further the petitioner has sustained fracture injuries in the accident and has taken assistance of attendant including the assistance of her family members, for which they have suffered loss of income. This shows that the petitioner has sustained loss towards attendants.
SCCH-4 21 MVC No.7300/2022
Further the petitioner has sustained fracture injury and attended medication. This shows that the petitioner has followed the nutrition to meet with her necessary protein and special diet.
By considering all these aspects, it is necessary to award compensation of Rs.30,000/- towards attendant charges and special diet. In total, the petitioner is entitled for Rs.80,000/- under this head.
20. Non-Pecuniary Loss:- This element of compensation reads as follows;
(a) Pain and sufferings and mental agony:-
According to medical records, the petitioner has sustained fracture injuries at the age of 34 years as on the date of accident. The said accidental injuries have caused her lot of pain to suffer in her future life span. SCCH-4 22 MVC No.7300/2022
In The Civil Appeal No. 8510 Of 2022 Sidram V/S The Divisional Manager, United India Insurance Co. Ltd. And Anr, Hon'ble Supreme Court has held that "Pain and suffering would be categorized as a non-pecuniary loss as it is incapable of being arithmetically calculated.
Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim's age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life."
Like wise, in the case of Subulaxmi V/s Managing Director, Tamil Nadu State Transport Corporation and another (2012) 10 SCC 177 the Hon'ble Supreme Court awarded compensation of Rs.1,00,000/- towards pain and sufferings to the petitioner.
Applying the above formula to the case on hand and by considering the nature of the injuries and percentage of disability caused to the petitioner, the petitioner is SCCH-4 23 MVC No.7300/2022 awarded with compensation of Rs.1,00,000/- under this head.
(b) Loss of enjoyment of life and amenities of life:-
The available on records reveals that the petitioner has sustained fracture injuries at the age of 34 years as on the date of accident.
In R.D. Hattangadi V/s M/s Pest Control (India) Private Ltd., (1995) 1 SCC 551 the Hon'ble Supreme Court while dealing with the different heads of compensation in injury cases has held that "this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance. Then, there is the virtual impossibility of marriage as well as a complete loss of the ability to have sex and to have and nurture children." SCCH-4 24 MVC No.7300/2022 Applying the same formula to the case on hand this shows that the injuries caused to petitioner has impacted on the enjoyment of her personal life and amenities of life. Hence, it is necessary to award compensation of Rs.60,000/- under this head.
21. Based on aforesaid considered heads of compensation the tabulations is calculated as below:
Sl.No. Particulars Amount
1 Loss towards earning Rs. 4,16,640/-
capacity/ loss of future
income
2 Loss of income during the Rs. 62,040/-
laid up period
3 Medical expenses Rs. 4,05,649/-
4 Future Medical expenses Rs. 40,000/-
5 Conveyance allowance, Rs. 80,000/-
attendant charge and
special diet
6 Pain and sufferings Rs. 1,00,000/-
7 Loss of enjoyment and loss Rs. 60,000/-
of amenities of life
Total Rs. 11,64,329/-
SCCH-4 25 MVC No.7300/2022
Hence, the petitioner is entitled for total
compensation award amount of Rs.11,64,329/- which is just and proper.
22. Admittedly, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. Hence, the respondents No.1 and 2 are jointly and severally liable to pay compensation to the petitioner. The respondent No.2 being the insurer is bound to indemnify the respondent No.1. Hence, respondent No.2 is liable to pay the compensation to petitioner with interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.3:
23. For the foregoing reasons, I proceed to pass the following:
ORDER The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby allowed in part with cost.SCCH-4 26 MVC No.7300/2022
The petitioner is entitled for total compensation amount of Rs.11,64,329/- {future medical expenses shall not carry any interest}, with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 is directed to deposit the compensation amount within 60 days from the date of this order.
Considering the quantum of amount awarded to petitioner, it is ordered to release the entire amount in her favour.
Advocate fee is fixed at 1,500/-.
Draw up award accordingly.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 3rd day of December, 2024) (Gayathri S Kate) XVIII ADDL.JUDGE & ACJM Court of Small Causes Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Shakunthala.K.M. @ Shakunthalamma PW.2 Dr.Imran Hussain SCCH-4 27 MVC No.7300/2022 List of documents marked on behalf of the petitioners:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot mahzar
Ex.P4 IMV report
Ex.P5 Wound certificate
Ex.P6 Charge sheet
Ex.P7 Discharge summary 2 in nos collectively marked
Ex.P8 Notarized copy of my Aadhar Card
Ex.P9 Photographs collectively marked
Ex.P10 CD
Ex.P11 Medical bills
Ex.P12 Clinical notes
Ex.P13 Disability evaluation form Ex.P14 Patient case sheet Ex.P15 X-rays List of witnesses examined for Respondents:
-NIL-
List of documents marked on behalf of the Respondents:
-NIL-
XVIII ADDL.JUDGE & ACJM Court of Small Causes Bengaluru.