Bangalore District Court
Rohini Singh vs Royal Sun All Ins Co Ltd on 23 January, 2025
KABC020229342020
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 23rd DAY OF JANUARY - 2025
PRESENT: Sri. Shreyansh Doddamani
B.Com. LL.B (Spl)
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
MVC. No.200/2021
Petitioner : Rohini Singh,
D/o Rajendra Singh,
Aged about 30 years,
R/at No.126, 3rd Main,
Dollors Colony, Ashwath Nagar,
Bengaluru-560094.
(By Advocate: Sri.K.Prasad Hegde)
v/s
Respondent/s : 1. Royal Sundaram Gen.Ins.Co.Ltd.,
No.56/1, 2nd Floor, 9th Main road,
5th Block, Jayanagar,
Bengaluru-560041.
Represented by its Divisional Manager,
(Insurer of Toyota Fortuner car bearing
Reg.No.KA-53-MG-0666)
Policy No.VPS0023828000100
Valid from 27.02.2020 to 26.02.2021.
(By Sri. B.N.Sreekantaswamy, Adv)
SCCH-23 2 MVC-200/2021
2. M/s Jayaram Associates,
No.01, Coconut Avenue Road
East, Malleshwaram,
Bengaluru-560003.
By its Managing Partner.
(Insurer of Toyota Fortuner car bearing
Reg.No.KA-53-MG-0666)
(Exparte)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
2. The case of the petitioner in the nutshell is that, on 29.07.2020 at about 5.30 a.m, the petitioner was returning from Hesaraghatta towards Yelahanka in a car bearing Reg.No.KA-53-MG-0666, when they reached near Ayurvedic Hospital in a curve road, situated on Mavallipura road, Yelahanka Bengaluru City, the driver of the said Car drove it in a rash & negligent manner and moved car towards the side of the road and dashed against the tree. Due to the said impact the petitioner sustained grievous injuries. Immediately after the accident the petitioner was shifted to Navachethana Hospital, SCCH-23 3 MVC-200/2021 wherein she took first aid and then she was shifted to Appollo Hospital, Sheshadripuram, Bengaluru, wherein she treated as inpatient and underwent several examinations and was discharged with an advice to take complete bed rest and regular followup treatment. Further she was treated as inpatient in Sakra Word Hospital, Bengaluru. She spent huge amount towards her treatment. Further at the time of accident she was hale and healthy and was working as Film Actress and earning Rs.7,00,000/- p.m. Due to the accidental injuries she became disabled and lost her earning capacity. It is further urged that, the accident happened because of rash and negligent driving of the driver of the Fortuner car. The respondent No.1 & 2 being the insurer and owner are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.2, the respondent No.2 did not appear before this Tribunal. Hence he placed exparte.
SCCH-23 4 MVC-200/2021
4. After service of notice, respondent No.1 filed written statement by contending that the petition itself is not maintainable either law or on facts. This respondent admitted the issuance of insurance policy in respect of Toyota car bearing Reg.No.KA-53-MG-0666. However the liability if any is pleaded to be subject to the terms & conditions of the policy. Further the respondent has contended that, the owner and the concerned police have not complied the mandatory provision of Sections 134(c) and 158(6) of M.V.Act. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Without prejudice to the said contention it is averred that the rider of the insured vehicle did not possess valid & effective DL as on the date of accident. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
SCCH-23 5 MVC-200/2021
5. On the basis of above pleadings the following issues were framed :
ISSUES
1) Whether the petitioner proves that she sustained injuries in a road traffic accident that occurred on 29.07.2020 at about 5.30 a.m, when the petitioner was traveling from Hesaraghatta towards Yelanhanka, near Mavallipuram road, near Ayurvedic Hospital, Yelahanka, Bengaluru City, due to actionable negligence of the driver of the Fortuner car bearing Reg.No.KA-53-MG-0666 ?
2) Whether the petitioner is entitled for compensation ? If so, from whom and to what extent ?
3) What order or award ?
6. Dr. Kiran Chouka, Consultant Orthopedic at Manipal Hospital is examined as PW.1. Ex.P.1 to 3 were marked through this witness. The Medical Record Incharge of Apolo Hospital, Bengaluru is examined as PW.2. Ex.P.4 to 8 were marked through this witness. Dr. Maheshwarappa. B.M, Physical Medicine, Rehabilitation & Neurorehabilitation of Sakra Hosptial, Bengaluru was examined as PW.3. Ex's.P9 & 10 were marked through this witness. Further Dr. Vasudev Prabhu, Consultant Orthopedic Surgeon at Apolo Hospital is SCCH-23 6 MVC-200/2021 examined as PW.4 and through him Ex.P.11 & 13 were marked. The petitioner herself examined as PW.5. Ex's.P13 to 21were marked on her behalf. The respondent No.1 did not choose to lead any evidence on its behalf.
7. Heard counsel for the petitioner and respondent No.1 counsel on merits. Perused the entire materials placed on record.
8. This tribunal 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
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to the tune of Rs.50 lakhs together. The petitioner has mainly relied on Ex.P.13 to Ex.P.18 being police documents. On careful perusal of these documents it appears that based on the information given by petitioner herself the Yelahanka Police registered the FIR as per Ex.P.13 and investigated the matter SCCH-23 7 MVC-200/2021 and submitted the charge sheet as per Ex.P.17. In order to prove the factum of negligence the petitioner has mainly relied on Ex.P.15 spot mahazar and Ex.P.17 charge sheet. This court gave anxious consideration on astuteness to the contents of the above said document. On conspectus reading of Ex.P.16 it reflects that the place of accident is a curve road, and the accident happened on Hesaraghatta towards Yelahanka road, Bengaluru. On close perusal of the same it reflects that, the driver of car in which the petitioner was proceeding as inmate, the driver drove the same in high speed and due to over speed he unable to control his vehicle in a curve road, he went and dashed to the road side tree and caused the accident. If the driver of the car was coming in a normal speed then he would certainly avoided the accident. Above all even the charge sheet was also filed as against the driver of the car for the offences punishable u/s 279, 338 of IPC. This court is aware of the fact that charge sheet is not a conclusive proof to come to conclusion with regard to rash and negligent act. But having regard to the Ex.P.15 Spot mahazar which was read in SCCH-23 8 MVC-200/2021 consonance with the Ex.P.17 Charge sheet it is crystal clear that there is an rash and negligent act of the driver of the car.
10. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not SCCH-23 9 MVC-200/2021 examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the driver of car is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the driver of the car and he was charge sheeted.
11. Though PW.5 cross-examined at length by the respondent No.1 but she withstood the rigor of cross- examination. This court is aware of the fact the charge sheet cannot be trusted as a holy document to come to the conclusion of the negligence. But in the instant case having regard to the other materials placed on record and other surrounding circumstances it is it is clearly forthcoming that the negligence on the part of the driver of the car. Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the driver of the car. With this observation issue No.1 is answered as 'In the Affirmative'. SCCH-23 10 MVC-200/2021
12. ISSUE NO.2 : As already discussed above the petitioner has proved that the accident took place due to the actionable negligence of the driver of car. Therefore she is entitled for compensation.
13. AGE, AVOCATION AND INCOME : So far as the age of the petitioner is concerned, she has not produced any documents to show her age. Hence the age of the petitioner as indicated in the police and medical records i.e., 30 years is taken into consideration.
14. The petitioner has specifically averred that she was hale and healthy before the accident and further she was working as Film Actress and earning a sum of Rs.7,00,000/- per annum and because of the accident she has not in a position to earn. In order to prove the said fact she has produced Ex.P.20 being the IT Returns and TDS Reports and Ex.P.21 being the Film Chamber Certificate. On perusal of Ex.P.20 IT Returns for the assessment year 2019-20 which reflects that her total income is Rs.5,51,980/-. Further the said document discloses that she has paid tax of Rs.13,583/- and a SCCH-23 11 MVC-200/2021 sum of Rs.1,910/- was refunded. With regard to authenticity of IT returns the petitioner has relied on the decision reported (2020) 5 SCC 327 in the case of Sangita Arya and others V/s Oriental Ins.Co.Ltd., and others wherein it is held herein as under :
"C. Motor Vehicles Act, 1988 - Ss. 166 and 168-
Compensation - Computation of income - Consideration of latter most income tax returns (ITR's)- High Court determined income by taking average of ITRs for 2002-03 at Rs.54,000/- p.a., 2003-04 at Rs.52,405/- p.a., and 2004-05 at Rs.51,500/- p.a., held, erroneously disregarding ITR for 2006-07, showing Rs.98,500/- p.a., for filing almost one year after death of deceased, which is factually incorrect - Photocopy of original ITR for 2006-07 filed before Supreme Court, bearing rubber stamp of Department should not have been disregarded by High Court - ITR for 2005-06, revealing income of deceased at Rs.98,100/- p.a., during previous assessment year - Based on evidence on record i.e., ITRs for 2005-06 and 2006-07, reflecting income of approximately Rs.1,00,000/- p.a., to be taken as a basis for compensation - Impugned judgment set aside"
15. Further relied on the decision of the Hon'ble Apex Court reported (2020) 4 SCC 228 in the case of Malarvizhi SCCH-23 12 MVC-200/2021 and others V/s United India Ins.Co.Ltd., and another wherein it is held herein as under :
"A Motor Vehicles Act, 1988- Ss.166 and 168- Compensation- Computation of income - Proof of income - Agricultural income - Income tax return - Income Tax returns is a statutory document on which reliance may be placed to determine annual income of the deceased - Held, Tribunal determining agricultural income on the basis of two judgments of the High Court arriving at two different figures and on an average of the two amounts, despite clear indication in income tax returns, not sustainable in law - In appeal there against, High Court rightly held that monthly income is to be computed on the basis of income tax return, where available - To benefit of appellants, the High Court proceeded on basis of income tax return of AY 1997-1998 being the maximum in three years."
Wherein in these two decisions the pith and substance of these two decisions IT returns being a statutory document on which reliance may be placed to determine the annual income. When such is the case considering that the IT returns to consideration her monthly income is Rs.44,866/- (5,38,397/12).
16. As per the medical records the petitioner has sustained the following injuries : L2 Burst fracture SCCH-23 13 MVC-200/2021 encroaching on spinal cord, left clavicle fracture. It is needless to say that the injuries are grievous in nature.
17. The discharge summary of Apolo Hospital, Bengaluru (Ex.P.1) indicates that the petitioner was taken treatment as an inpatient from 29.07.2020 to 06.08.2020 (9 days). During the course of treatment the doctors noted and taken steps as L1, L2, L4, L5 exposed subperiosteally, L1, L2, L4, L5 bilateral instrumentation with pedicle screws, L2, L3 laminectomy done and decompression of dura end and bony fragments noted in the canal removed, dural tear noted, adequately decompressed, rods connected, fracture fragments reduced, vancomycin instilled, wound closed in layers over suction drain.
18. Ex.P.10- Discharge summary issued by Sakra World Hospital, indicates that she was treated as an inpatient in the said hospital from 23.08.2020 to 16.10.2020 (55 days). During the course of treatment she was treated alpha bed to prevent pressure sores. TED stockings were applied on both lower limbs to prevent DVT. During the treatment she undergone several clinical examinations and also undergone several observations SCCH-23 14 MVC-200/2021 and at the end of day i.e., on 17.10.2020 haemodynamically she became stable and sypmtomatically better. On normal oral died, skin intact, able to walk with elbow cruches with support. She and family members were taught regarding the continuation of medications, home based rehabilitation, hence being discharged with and advises.
19. It is the specific case of the petitioner that, owing to the accidental injuries she has become disabled and has thereby lost his earning capacity. Therefore she got examined Dr.Kiran Chouka (Consultant Orthopedic, joint replacement & Arthroscopy surgeon at Manipal Hospital) as PW.1. PW.1 in his chief examination he reiterated the discharge summary averments stated that he recently examined the patient and current clinical status on 06.09.2022 still has weakness both lower limbs, sensory loss both feet, difficulty in standing, walking, needs maximum support for standing and walking, sitting balance is good. On clinical examination conducted by him, he found that petitioner has sustained total loss of SCCH-23 15 MVC-200/2021 stability component is 68.39%. PW.1 not cross examined by any counsel.
20. Further Dr. Vasudev Prabhu, being consultant, orthopedic surgeon at Apollo Hospital examined as PW.4. PW.4 in his chief examination he stated that he recently examined the patient on 27.01.2024 exclusively for assessment of disability. On clinical examination he found the following disabilities :
compression fracture of single vertebra with involvement with the posterior element with dislocation with pain - percentage of disability is 35% to whole body. Loss of muscle mass right more than left 10% of both lower limb, neurological witness in all muscle groups 2/5 right side. PW.4 stated that as per the guidelines she has compression fracture of L3 with disposition of posterior element with persistent pain and stiffness held with fusion in ability to lift >10 kgs - 30% pain persistent muscles spasm with moderate radio-logical changes 30% bladder bowel involvement present with mild to moderate hesitance / occasional incontinence 30%. Secondary to the lumber fracture there is grade 3/grade 4 muscles weakness around hip and SCCH-23 16 MVC-200/2021 ankle joints 60% of both lower limbs. Further the patient walks with the help of calliper and walking aid-stability component is 60% of both lower limbs. To summaries the overall disability for the entire body stability component 40% spinal disability.
Examination of the left clavicle fracture. Fracture fully united and there is no loss of movement of shoulder hence no disability for left shoulder. It is elicited during the course of cross examination PW.4 categorically admitted that he has given opinion on orthopedic injury. The L2 burst fracture got united.
The left clavicle fracture got united and there is no disability.
Further he admitted that he has not produced his clinical notes and he has not taken any x-ray during the examination time.
PW.4 stated that according to the gazette notification the mobility and stability does not have any bearing on spine injury. The impact of the spine injury is neurological disability, and he has not taken neurologist opinion. He stated that 35% of whole body disability includes neurological disability also and he cannot distinguish between orthopedic and neurological disability.SCCH-23 17 MVC-200/2021
21. Further the petitioner has also examined Dr. Maheswarappa. B.M, being a physical medicine and rehabilitation and neuro rehabilitation at Sakra Hospital as PW.3. He reiterated the discharge summary averments and also affidavit evidence of PW.1. Further he stated that FIM score was improved from 65 to 99 which indicates a significant change in the ADL performance. Barthel index score was improved from 30 to 70 which indicates a significant change in her overall occupational performance, further goal was to improve community integration and also improve over all independence in functional ability skills. PW.3 in his chief examination he stated that he recently examined the patient exclusively for assessment of disability. On clinical examination conducted by him, he found that, petitioner sustained 68.39% as sum of the stability component in lower limbs and 70% disability to the whole body. During the course of cross examination PW.3 admitted that he is a rehabilitation doctor. PW.3 admitted that he was neither a neurosurgeon nor a orthopedic surgeon. Further admitted that based on neurological factors, he SCCH-23 18 MVC-200/2021 assessed disability of the petitioner. When such is the case physical disability assessed by the medical experts is on the higher side. Be that as it may, the law is well settled that it is the impact of the physical disability on the particular avocation of the petitioner which is relevant for the purpose of assessment of compensation under the head of loss of future income as held by the Hon'ble Apex Court in Rajkumar's case reported in (2011) 1 SCC 343. Considering the nature of injuries, line of treatment and on appreciation of the clinical findings noted by the doctors, the possibility of the fact that the petitioner may be having economical or functional disability to the extent of 25%, cannot be ruled out. Therefore, I consider the functional disability of the petitioner at 25%.
22. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD & CONVEYANCE CHARGES : The period of hospitalization of (55+9) 64 days is proved with a help of discharge summaries. During the aforesaid period the petitioner might have also spent a considerable amount towards special diet, transportation and nutrition. Considering the rate of inflation and rise in the price SCCH-23 19 MVC-200/2021 index, the same is quantified at Rs.1,200/- per day and a sum of Rs.76,800/- (1,200 X 64) is awarded under this head.
23. PAIN & SUFFERINGS : On account of the accidental injuries the petitioner would have had undergone pain and mental agony. Thus this Tribunal awards a sum of Rs.50,000/- under this head.
24. LOSS OF INCOME DURING LAID-UP PERIOD:
Considering the nature of injuries, treatment given and duration of his stay in the hospital, it is quite natural that petitioner could not have carried out his avocation for at least 5 months. Thus by taking into account the notional income of the petitioner, this Tribunal awards Rs.2,24,330/- (Rs.44,866/- X
5) which is rounded off to Rs.2,24,300/- under this head.
25. MEDICAL EXPENSES : As per the bills marked at Ex.P19, the petitioner has spent Rs.14,58,723/- towards medical expenses. Nothing worthwhile was elicited during the course of his cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.14,58,723/- SCCH-23 20 MVC-200/2021 which is rounded off to Rs.14,58,700/- towards medical expenses.
26. LOSS OF FUTURE INCOME DUE TO DISABILITY: As per Sarla Verma's case, the appropriate multiplier applicable is '17'. This Tribunal has already assessed the notional income of the petitioner at Rs.44,866/- p.m. Hence a sum of Rs.22,88,166/- (Rs.44,866 X 12 X 17 X 25/100) which is rounded off to Rs.22,88,200/- is awarded under this head.
27. LOSS OF FUTURE AMENITIES AND HAPPINESS:
The disability referred above would have necessarily caused physical deformity with which the petitioner has to live the rest of his life. Hence a sum of Rs.50,000/- is awarded under this head.
28. FUTURE MEDICAL EXPENSES : No evidence is brought on record to demonstrate the requirement for further treatment and the medical & incidental expenses to be incurred therefrom. Further in the cross-examination the petitioner himself categorically admitted that implants are removed. It is further admitted that the bills produced at Ex.P.24 are bills in SCCH-23 21 MVC-200/2021 respect of removal of implants. Hence, no amount is awarded under this head.
29. The calculation table stands as follows :
1 Attendant charges, extra : 76,800-00 nutritious food & conveyance charges 2 Pain & sufferings : 50,000-00 3 Loss of income during laid-up : 2,24,300-00 period 4 Medical expenses : 14,58,700-00 5 Loss of future income due to : 22,88,200-00 disability 6 Loss of future amenities & : 50,000-00 happiness 7 Future medical expenses : - Nil -
Total 41,48,000-00
30. 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% per annum is awarded it would meet the ends of justice.
31. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident.
Therefore, the respondent No.1 being the insurer of the Toyota Fortuner car bearing Reg.No.KA-53-MG-0666 and respondent SCCH-23 22 MVC-200/2021 No.2 being the owner thereof are jointly and severally liable to pay the aforesaid award amount to the petitioner together with interest @ 6% per annum from the date of claim petition till realization of the entire amount. However the respondent No.1 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'.
32. 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 for compensation of Rs.41,48,000/- with interest at the rate of 6% p.a., from the date of claim petition till realization of the entire award amount.
The respondent No.1 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.SCCH-23 23 MVC-200/2021
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
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 23rd day of January - 2025) (Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s: PW.1 : Dr. Kiran Chouka PW.2 : Smt. Voilet Mary PW.3 : Dr. Maheshwarappa. B.M PW.4 : Dr. Vasudeva Prabhu PW.5 : Rohini Singh (petitioner) List of documents got marked for the petitioner/s:
Ex.P.1 Discharge summary
Ex.P.2 11-X-ray films
Ex.P.3 Patient advise report
Ex.P.4 Authorization letter
Ex.P.5 Case sheet
SCCH-23 24 MVC-200/2021
Ex.P.6 3-CT films and 1-MRI report along with CD
Ex.P.7 2-Xrays along with one CD
Ex.P.8 True copy of MLC Register Extract
Ex.P.9 Case sheet
Ex.P.10 Discharge summary
Ex.P.11 X-ray report
Ex.P.12 X-ray film
Ex.P.13 True copy of FIR
Ex.P.14 True copy of Complaint
Ex.P.15 True copy of Spot Mahazar
Ex.P.16 True copy of Sketch which was drawn at the time of Spot Mahazar Ex.P.17 True copy of Charge Sheet Ex.P.18 True copy of Wound Certificate Ex.P.19 11 Medical bills amounting to Rs.14,58,723/- Ex.P.20 IT returns and TDS reports (2 in Nos.) Ex.P.21 Film Chamber Certificate List of witnesses examined for the respondent/s:
- None -
List of documents marked for the respondent/s:
- Nil (Shreyansh Doddamani) XXI Addl. Small Causes Judge & ACJM, Bengaluru.