Bangalore District Court
Kum.Shubham Ojha vs Mr.Subramanyam on 1 July, 2020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru
DATED THIS THE 01st DAY OF JULY 2020
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT-3, Bengaluru.
M.V.C. No.6953/2017
Petitioner : Kum.Shubham Ojha,
D/o Sri.Girija Shankar Ojha,
Aged about 23 years,
Presently R/at # E-184,
3rd Cross Road,
Patellappa Layout,
RMV II Stage,
Bengaluru - 560 094.
Permanent address:
B-978, Sector - II,
HEC, Dhurwa,
Ranchi,
Jharkhand - 834 004.
(By Sri.M.V.Vishwanath, Advocate)
-Vs-
Respondents : 01. Mr.Subramanyam,
Major,
# 71, K.H.B. Colony, 5th Block,
Koramangala,
Bengaluru - 560 095.
(SCCH-3) 2 MVC 6953/17
(R.C. Owner of Motor Cycle bearing
reg. No.KA-01-EN-1782)
(Exparte)
02. The Oriental Insurance Co. Ltd.,
Regional Office, T.P. Hub,
# 44/45, Leo Shopping Complex,
Residency Road,
Bengaluru - 560 025.
(Insurer of Motor Cycle bearing
reg. No.KA-01-EN-1782)
Policy No.421803/31/2017/3074
valid from 21-11-2016 to 20-11-2017
(By Smt.K.Usha, Advocate)
03. The Managing Director,
B.M.T.C.,
K.H. Road,
Shanthinagar,
Bengaluru - 560 027.
(R.C. Owner-cum-internal insurer
of BMTC Bus bearing reg. No.
KA-01-FA-1354)
(By Sri.K.M.Sanath Kumara,
Advocate)
*******
JUDGMENT
This petition is brought U/Sec 166 of M.V. Act 1988 for the compensation to the injuries sustained by the petitioner in the accident caused on 11-09-2017.
(SCCH-3) 3 MVC 6953/1702. The brief facts are as under:-
It is the case of the petitioner that on 11-09-2017 at about 8.45 a.m., she was crossing the road at Dr.Marigowda Main Road, near Accenture Company with cautiously, observing the vehicle movements. At that time the driver of BMTC Bus bearing reg. No. KA-01-FA-1354 was at some distance from Tavarekere Junction towards Dairy Circle and petitioner had crossed major portion of the road, the rider of one TVS Apache vehicle bearing reg. No.KA-01-EN-1782 came in a rash and negligent manner and suddenly dashed against the petitioner. As a result the petitioner fell down and at that time the driver of BMTC Bus who was coming in a rash and negligent manner, ran front wheel of the bus on her left foot. As such she suffered severe injuries. She was immediately taken to the MG Speciality hospital at Bengaluru and took treatment as inpatient. The doctor found that she has suffered extensive avulsion injury with tissue loss of left foot. She has undergone debridement of left foot and she is under follow treatment even now. According to the petitioner she has incurred Rs.1,50,000-00 towards hospital charges and other incidental charges.
03. According to the petitioner she was hale and healthy prior to accident and was earning more than Rs.15,000-00 p.m. by doing the job of Sales Girl. Now (SCCH-3) 4 MVC 6953/17 she is unable to earn and she was also unable to attend the Post Graduation classes. As such she has claimed Rs.15,00,000-00 (Fifteen lakhs only) as compensation against the respondents.
04. In response to the notice issued, the respondent No.1 failed to appear and hence he was placed exparte. Respondent No.2 appeared through KU Advocate and the respondent No.3 appeared through KMSK Advocate.
05. The respondent No.2 has filed written statement contending that the petition is not maintainable as there is no involvement of the two- wheeler as pleaded in the petition. The BMTC driver would have stopped the bus noticing the pedestrian passing the road, but he failed, hence bus driver is negligent. The rider of two-wheeler was not at all negligent. The petitioner who crossed the BMTC bus dashed against two-wheeler and the rider was unaware that the pedestrian will suddenly appear in his front where there is no zebra crossing and there is negligence on the part of petitioner herself. The liability of respondent No.2 if any is subject to terms and conditions of the policy. The age, avocation, income and expenses details furnished by the petitioner are all denied as false and hence, sought to dismiss the case against them.
(SCCH-3) 5 MVC 6953/1706. The respondent No.3 has filed written statement denying the entire case of the petitioner and took contention that the bus driver was not at all negligent in causing the accident to the petitioner. The petitioner all of a sudden rushed to the cross road from left to right where there is no zebra cross and she had crossed the BMTC bus, but rider of two-wheeler came from left side of the bus and dashed against the petitioner, as such petitioner fell down near front left wheel of the bus, as such the bus driver is not negligent and the liability on two-wheeler rider and petitioner. The age, avocation, income and expenses details furnished by the petitioner are all denied as false and hence sought to dismiss the petition against them.
07. Based on the aforesaid pleadings, the following Issues have been framed by my learned predecessor: -
ISSUES
1. Whether petitioner proves that she has sustained grievous injuries in the accident occurred on 11-09-2017 at about 8.45 a.m., opposite Accenture Company, Dr.Marigowda Main Road, Bengaluru, due to the rash and negligent riding of the rider of TVS Apache Motor Cycle bearing reg. No.KA-01-EN-1782 as alleged in the petition?(SCCH-3) 6 MVC 6953/17
2. Whether petitioner is entitled for compensation? If so, from whom and at what quantum?
3. What Order or Award?
08. In order to prove the case, petitioner gave evidence of herself as P.W.1 and has produced Ex.P.1 to Ex.P.12 documents. Also examined the doctor who assessed the disability as P.W.2 and through them Ex.P.13 and Ex.P.14 documents are marked. On the other hand respondent No.2 examined its Official as R.W.2 and respondent No.3 examined its Driver as R.W.1 and through them Ex.R.1 and Ex.R.2 documents are marked.
09. Arguments are heard from petitioner and respondent No.3 side. Respondent No.2 has filed written arguments.
10. My findings on the aforesaid Issues are as under:-
Issue No.1 Partly in the Affirmative Issue No.2 Partly in the Affirmative Issue No.3 As per final order for the following:
REASONS
11. Issue No.1:- In this case petitioner alleged that rider of TVS Apache Motor Cycle bearing reg. No.KA-01-EN-1782 has caused the accident and (SCCH-3) 7 MVC 6953/17 injuries to petitioner. In order to substantiate the claim, petitioner gave her evidence as P.W.1 by reiterating petition averments in her chief-examination filed by way of affidavit. She has produced Ex.P.1 to Ex.P.12 documents such as Complaint, FIR, spot Mahazar, spot Sketch, IMV report, Police intimation, Wound certificate, Final report, Discharge summary, Medical bills, Advance receipts and Aadhaar card.
12. In the cross-examination of P.W.1 it is suggested that there is no zebra cross at the spot and it is admitted. Therefore, it is clear that petitioner had tried to cross the road where she is not permitted lawfully. The other part of cross-examination shows that the respondent No.2 tried to fasten the liability on respondent No.3 and respondent No.3 tried to fasten the liability on respondent No.2. But petitioner had made it clear both are negligent.
13. In this regard the respondent No.3 has examined the Bus driver which is involved in this case as R.W.1 and he has also stated that it was two- wheeler rider who was negligent and petitioner was also negligent. The cross-examination of this witness shows that it was suggestion made by respondent No.2 that since petitioner was coming from right to left, it was not possible for the two-wheeler rider to see the petitioner. The respondent No.2 examined its Official (SCCH-3) 8 MVC 6953/17 as R.W.2 and took the defence as raised in the written statement and they have produced Authorization letter and policy copy at Ex.R.1 and Ex.R.2. It is true that as per Ex.P.4 spot Sketch the petitioner was coming from right side of the bus and two-wheeler position shown towards left side of the bus. So, there is no possibility of seeing the petitioner, as the bus is a big vehicle, which obstruct visibility to the two-wheeler person. To this extent, it can be said that the two-wheeler rider had less chance to avoid the accident. But it is true that the bus driver had best visibility since it is a big vehicle in width and height than the two-wheeler. It is a peculiar situation where the admitted facts are that the petitioner after crossing the bus was hit by two- wheeler and as such she fell on the road and at that time the bus front side left wheel ran over her leg. It is also admitted fact that there was no zebra cross or pedestrian way at that point. So, considering these aspects, it is expected, once the bus driver had seen petitioner crossing the road, it is the duty to observe that there was no any obstruction at that point and then to move safely. But in this case the bus driver failed to take precaution. On the other hand the respondent Nos.1 and 2's vehicle rider of two-wheeler had failed to ride carefully and he has also contributed in the accident. Therefore the argument canvassed by (SCCH-3) 9 MVC 6953/17 respondent No.2 by filing written arguments taking stand that the bus driver and petitioner are responsible and the rider of two wheeler is not negligent is not acceptable. In this case the petitioner after hit by the two wheeler fell down and then bus wheel ran over on her. So all the three contributed. The fact that petitioner has also violated the law by crossing the road where she is not legally permitted, she has also contributed to the accident. Therefore, in my opinion the petitioner is successful partly in proving Issue No.1 and as such I answered the same accordingly.
Issue No.2:
14. The heads under which compensation is awarded in personal injury cases are the following: -
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability;
(iii) Future medical expenses.
Non-pecuniary damages (General Damages) (SCCH-3) 10 MVC 6953/17
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
15. To prove the injuries petitioner has produced the Wound certificate of M.G. Speciality hospital of Bengaluru at Ex.P.7 and it shows that she has sustained:-
Extensive degloving injury with extension avulsion of tissue over the right foot According to the doctor this injury is grievous in nature.
16. Apart from it, the petitioner has also examined P.W.2. P.W.2 is Dr.Nagaraj.B.N, Orthopedic Surgeon working at SOADS hospital who assessed the disability, has deposed that petitioner suffered degloving injury with extensive avulsion of the tissue over the left foot. Petitioner has complained of weakness and pain in the left foot and ankle, he is unable to sit down, squat, sit cross-leg and unable to feel the skin over the foot. As such he has assessed the disability at 40% to the lower limbs and 13% to the whole body. He has produced OPD and X-ray at Ex.P.13 and Ex.P.14.
17. In the cross-examination of P.W.2 admitted that he has not treated the petitioner, but only (SCCH-3) 11 MVC 6953/17 assessed the disability. He has also admitted that he has not taken the opinion of the treated doctor. It is admitted that petitioner has only undergone debridement surgery. He admitted that he has not assessed functional disability.
18. It is pertinent to note that the petitioner has undergone surgery for skin grafting degloving injury and it is elicited from the cross-examination of P.W.2 that there is no calculation of functional disability. So, the disability assessed by the doctor at 13% is accepted in the absence of any rebuttal evidence. It is noticeable that the petitioner cannot sit with cross-leg and it can be said that there is some sort of difficulty as per the observation of expert. Therefore, I deem it fit to consider the disability at 13%.
19. Though petitioner claimed that she was a student of Post Graduation and also doing work of Sales Girl and earning Rs.15,000-00 per month, but there is no cogent evidence in this regard. In the absence of such proof, it is feasible to consider the notional income. Looking to the age of the petitioner and date of accident, I deem it fit to consider the income of the petitioner at Rs.8,000-00 p.m.
20. The petitioner claimed that she was 23 years old at the time of accident and she was able to produce Aadhaar card copy at Ex.P.12 which shows (SCCH-3) 12 MVC 6953/17 that she was born in the year 1994. So, as on the date of accident her age would be 23 years and the same is accepted for calculating the compensation. So, as per Sarla Varma case the multiplier applicable is "18" and the same is considered. Therefore, the petitioner is entitled for loss of future income as under:
Rs.8,000 x 12 x 13 x 18/100 = Rs.2,24,640-00 (Two lakhs twenty four thousand six hundred forty only).
21. The petitioner has produced Discharge summary at Ex.P.9 and it shows that she has taken treatment as inpatient from 11-09-2017 to 15-09-2017 at MG Speciality hospital. Therefore, looking to the days of treatment, I deem it fit to award Rs.10,000-00 (Ten thousand only) towards pain and sufferings undergone during treatment period.
22. I also deem it fit to award Rs.4,000-00 (Four thousand only) towards loss of income during laid up period.
23. I also deem it fit to award Rs.10,000-00 (Ten thousand only) towards loss of amenities and nutritious food.
24. Further I deem it fit to award Rs.3,000-00 (Three thousand only) towards attendant charges and conveyance.
25. Petitioner has produced various medical bills at Ex.P.10 which contains 16 bills for (SCCH-3) 13 MVC 6953/17 Rs.94,475-00. Perusal of which Sl. No.1 which is detailed inpatient bills for Rs.58,710-00 issued by M.G. Speciality hospital having signature and seal and the same is proved by producing advance bills at Ex.P.11 which are for Rs.5,000-00, Rs.20,000-00 and Rs.15,000-00. The rest of the amount is paid in cash as per Ex.P.10. Perusal of Sl. No.2, the total amount comes to Rs.14,359-00 and it is taken as Rs.16,628-00, hence the difference amount of Rs.2,269-00 has to be deducted. Regarding other bills there is no serious dispute by the other side. Hence, the same is considered. Therefore, after deducting Rs.2,269-00, the petitioner is entitled for Rs.92,206-00 (Ninety two thousand two hundred six only) as medical expenses.
26. P.W.2 doctor has opined that petitioner needs another surgery for the union of medial malleolus fractures, which may cost around Rs.60,000-00. But there is no such specific material in this regard and looking to the need of the petitioner, I deem it fit to award Rs.15,000-00 (Fifteen thousand only) towards future medical expenses.
27. Therefore, the petitioner is entitled for total compensation of Rs.3,58,846-00 (Three lakhs fifty eight thousand eight hundred forty six only) as under:-
(SCCH-3) 14 MVC 6953/171. Loss of future income Rs.2,24,640-00
2. Pain and Agony 10,000-00
3. Medical expenses 92,206-00
4. Loss of amenities and nutritious food 10,000-00
5. Attendant charges and conveyance 3,000-00
6. Loss of income during laid up period 4,000-00
7. Future medical expenses 15,000-00 TOTAL Rs.3,58,846-00
28. Regarding liability:- In this case the respondent Nos.2 and 3 who have contested the case have canvassed the arguments stating that since petitioner was crossing the road where no zebra cross, she is negligent and the respondent No.3 argued stating that after crossing the bus she was hit by two- wheeler and therefore their liability does not arise. The counsel for respondent No.2 who filed written arguments has placed reliance on Judgment reported in 2014 ACJ 2043 the Judgment of Hon'ble High court of Gujarat where pedestrian and bus driver both held negligent, but in this case as discussed on Issue No.1 all the three contributed to the accident. hence the Judgment can be applied to fasten liability on respondent Nos.1 and 2 as well. As discussed on Issue No.1, it is already held that all the three were negligent in causing this accident and in view of the Judgment relied by counsel for respondent No.3 reported in (SCCH-3) 15 MVC 6953/17 reported in ILR 1999 KAR 1934, the petitioner can also be held liable to some extent. The Judgment of Hon'ble High Court of Karnataka reported in ILR 2003 KAR 1104 between Koosappa Poojari Vs K.Sadabba and others it is held that, "Motor Vehicles Act 1988 (59/88) - Sec.173(1) - Contributory negligence - Claimant had crossed the road where he was not supposed to cross - Held - Certain degree of contributory negligence will have to be attributed to him - If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he can not claim any specific precedence and the responsibility for causing the accident - Pedestrian has to share the negligence along with the driver".
Therefore, having regard to the facts of the case, I deem it fit to fasten liability of 20% on the part of petitioner and the liability of respondent Nos.1 and 2 at 40% together and on respondent No.3 at 40%. Therefore, in my opinion the respondent No.1 to 3 are liable to pay the compensation at 80% and petitioner has to bear 20% on her own. Hence, Issue No.2 is answered partly in the Affirmative.
29. Issue No.3:- With regard to awarding the interest is concerned as per the judgment of Hon'ble High Court of Karnataka in MFA 202384/2017 and 200082/2018 the petitioner is entitled for interest at the rate of 9% p.a. In view of my finding on Issue Nos.1 and 2 as above, I proceed to pass the following:
(SCCH-3) 16 MVC 6953/17ORDER The claim petition filed by the petitioner U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
Petitioner is entitled for Rs.2,87,077-00 (Two lakhs eighty seven thousand seventy seven only) i.e., 80% of Rs.3,58,846-00 as compensation with interest at 9% p.a. (the interest awarded is not applicable to future medical expenses of Rs.15,000-00) from the date of petition till the date of deposit. The remaining 20% is to be borne by petitioner on her own.
Respondent Nos.1 to 3 are jointly and severally liable to pay the compensation to the petitioner at 80%. However, in view of valid insurance policy, respondent No.2 - Insurance Company is directed to pay 40% of the total awarded amount and the remaining 40% is directed to be paid by respondent No.3 - BMTC and shall deposit the same within time stipulated under section 168(3) of M.V. Act.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalized bank or schedule bank for a period of three years and remaining 60% of the amount shall be released to her (SCCH-3) 17 MVC 6953/17 through E-payment on proper identification without any further proceedings. However, she is at liberty to withdraw periodical interest accrued on her deposit amount from time to time.
The advocate's fee is fixed at Rs.500-00.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in open court, on this the 01st day of July 2020).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioner:
P.W.1 Shubham Ojha
P.W.2 Dr.Nagaraj.B.N
List of documents marked on behalf of the
petitioner:
Ex.P.1 Copy of Complaint
Ex.P.2 Copy of FIR
Ex.P.3 Copy of spot Mahazar
Ex.P.4 Copy of spot Sketch
Ex.P.5 Copy of IMV report
Ex.P.6 Copy of Police intimation
Ex.P.7 Copy of Wound certificate
(SCCH-3) 18 MVC 6953/17
Ex.P.8 Copy of Final report
Ex.P.9 Discharge summary
Ex.P.10 Medical bills (16 in Nos.) for Rs.94,475-00 Ex.P.11 Advance receipts (3 in Nos.) Ex.P.12 Notarized copy of Aadhaar card Ex.P.13 OPD Ex.P.14 One X-ray List of witnesses examined for the Respondents:
R.W.1 Shanthakumar
R.W.2 Veena Gonsalves
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authorization letter
Ex.R.2 Policy copy
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.