Bangalore District Court
Sri.Ravindra V vs Sri.Shankarappa on 31 January, 2023
KABC020194782020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
DATED THIS THE 31st DAY OF JANUARY 2023
(SCCH25)
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXIII Additional Small Causes Judge,
Bengaluru.
MVC NO.4301/2020
PETITIONER/S: Sri.Ravindra V.
S/o Venkataravanappa V.,
Aged about 39 years,
R/o Marasanahalli village,
Srinivasapura Taluk,
Kolar District.
(By Sri.T.V.Ramesh,
Advocate.)
V/S
RESPONDENT/S: 1. Sri.Shankarappa
S/o Munivenkatappa
Major,
R/o No.119/2,
Tyayakanahalli village,
Bidaraguppe post,
Anekal Taluk,
2 MVC 4301/2020
SCCH-25
Bangalore07.
(Exparte)
2. The Royal Sundaram Alliance
Insurance Company Ltd.,
Branch Office
Raghavendra plaza,
1st floor, 1st cross,
Hosur main road,
Wilson Garden,
Bangalore27.
(By Sri.V.Shrihari Naidu,
Advocate)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation for the injuries sustained by him in a road accident dated 01.10.2020.
2. The case of the Petitioner in brief is that, on 01.10.2020 at about 7.15 p.m., the petitioner was going towards Tigala Chowdadenahalli from his working place Devarabisanahalli by riding his motorcycle bearing Reg.No.KA01JJ8138 slowly, cautiously on the left side of 3 MVC 4301/2020 SCCH-25 BangaloreSarjapura road, when he reached near Swastik Hospital, Bangalore, at that time the rider of the Bajaj Discover motorcycle bearing Reg.No.KA51HC1659 came from same direction at high speed in a rash and negligent manner and dashed against his motorcycle to its rear side, as a result, he knocked down and sustained grievous injuries, immediately he was taken to Balaji Hospital, Dommasandra wherein admitted as an inpatient for 4 days and he was taking osteopathy treatment. Thereafter, he was admitted to Narendra Hospital, Kolar, from 29.10.2020 to 05.11.2020 wherein old shoulder dislocation right with brachial plexus injury, fracture both bones lower end comminuted are noticed and treated by closed reduction and shoulder immobilzer, open reduction and internal fixation with ILIM nailing for tibia, ORIF with plate and screws for fibula. He is till today under treatment as an outpatient. Inspite of the treatment he has not come to normal position and he is physically and functionally 4 MVC 4301/2020 SCCH-25 disabled. So far he has spent Rs.2,00,000/ towards treatment, medicine, conveyance etc., and requires more amount for his future treatment.
3. The petitioner further stated that, at the time of accident he was hale and healthy and was working as Supervisor at Embassy Tech village, Devarabisanahalli and was drawing monthly salary of Rs.20,000/. Due to the accidental injuries, he is completely bedridden and lost his earnings and he cannot do any work due to disability and impediment. The Sarjapura Police have registered a criminal case against the rider of the Bajaj Discover motorcycle bearing Reg.No.KA51HC1659 in Cr.No.168/2020 u/Sec.279, 337 of IPC. Hence, the 1 st respondent being the RC owner and the 2 nd respondent is the driver of the offending vehicle are jointly and severally liable to pay compensation to him.
5 MVC 4301/2020
SCCH-25
4. In response to service of notice issued by this court/Tribunal, the Respondent No.2 has appeared and filed written statement. In spite of due service of summons, the Respondent No.1 did not appear and hence placed exparte.
5. The Respondent No.2 in the written statement have denied the averments of the petition as false, admitted issuance of policy but their liability is subject to terms and conditions and also denied that Bajaj Discover motorcycle bearing Reg.No.KA51HC1659 was involved in the alleged accident and submitted that it was intentionally implicated in collusion with the police, owner and other authorities to get the unlawful benefit from the Insurance company. Further submitted that, the petition is bad for non joinder of necessary and proper parties. The owner of the Bajaj Discover motorcycle willfully entrusted the vehicle to the person who did not had a valid and effective driving licence to ride the same on the date of accident, as such there is a 6 MVC 4301/2020 SCCH-25 violation of terms and conditions of the policy and there is non compliance of Section 134(c) and Section 158(6) of M.V. Act. Therefore, prayed for dismissal of the petition against them.
6. On the basis of the above pleadings the following issues are framed:
ISSUES
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent driving by rider of Bajaj Discover Motorcycle bearing Registration No.KA51HC1659 and in the said accident petitioner sustained injuries?
2. Whether the Petitioner proves that he is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
7. The Petitioner in order to prove his case, he has examined himself as PW.1 and produced documents as per Exs.P.1 to P.10. Dr.Narendra Orthopaedic surgeon 7 MVC 4301/2020 SCCH-25 at Narendra Hospital, Kolar, is got examined as PW.2 and produced documents as per Exs.P.11 to P.13. On the other side the Respondent No.2 did not examine any witness nor produced any documents on their behalf.
8. Heard the arguments and perused the materials on record.
9. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: Issue No.1: In the affirmative, Issue No.2: Partly in the affirmative, Issue No.3: As per the final order, for the following: REASONS
10. Issue No.1: The Petitioner in order to prove that the accident was occurred due to the actionable negligence on the part of the driver of the Bajaj Discover motorcycle bearing Reg.No.KA 8 MVC 4301/2020 SCCH-25 51HC1659 has examined himself as PW.1 and produced 4 documents as per Exs.P.1 to P3 and P.5. He has specifically stated in his evidence that, he was slowly, cautiously riding his motorcycle bearing Reg.No.KA01JJ 8138 on BangaloreSarjapura road, when he reached near Swastik Hospital, at that time the rider of the one Bajaj Discover motorcycle bearing Reg.No.KA51HC1659 came at high speed in a rash and negligent manner and dashed against his motorcycle to its rear side and caused accident. On the other side, the Respondent No.2 have denied the case of the petitioner as false and contended that the offending vehicle has been falsely implicated in the case. In support of their defence the Respondent No.2 have not examined any witness nor produced any documents. In the crossexamination of the PW.1 nothing worth is elicited.
11. On perusal of Ex.P2 there is a delay of two days in lodging the first information but it is not material as the 9 MVC 4301/2020 SCCH-25 delay is explained satisfactorily stating that the petitioner was admitted to Hospital and no contrary evidence is lead to disbelieve the said explanation. Though the respondent No.2 contends false implication of the offending vehicle but not lead any supporting evidence. Apart from the oral evidence, the Petitioner has produced the documents such as FIR in Cr.No.0168/2020 of Sarjapura Police Station, FIS, spot mahazar and chargesheet as per Exs.P.1 to P.3, P.5. These all documents supports the case of the petitioner about the manner of accident. The respondent No.2 has not lead any cogent evidence to prove negligence on the part of petitioner himself or false implication of the insured vehicle and hence their defence is remained unproved. Under these circumstances, relying upon the oral evidence of PW.1 coupled with the documents produced as per Exs.P.1 to P.3 and P5 and appreciating them which are public documents having presumptive value under law, in absence of contrary evidence this court 10 MVC 4301/2020 SCCH-25 is of the opinion that the rider of the offending vehicle ridden it with rash or negligent manner and caused accident as alleged by the claimant. Accordingly, issue No.1 is held in the affirmative.
12. ISSUE NO.2 : The Petitioner has further averred that, on account of accident, now he cannot lift any objects, he cannot do any activities in his right hand, he have no movements in his right hand due to damage to the nerve, his right hand is functionless and it has only a cosmetic value, he cannot walk, sit, squat, climb the stairs and his left leg movements are restricted and painful and hence he is unable to do his earlier work/occupation. The Petitioner in this regard has entered into witness box and deposed that due to the accidental injuries, he is suffering from permanent disability. Apart from that, he has produced the Ex.P.4/wound certificate and as per it, the petitioner has sustained (1) Altered size and shape with loss of ROM 11 MVC 4301/2020 SCCH-25 present in right shoulder, xray AP shows Dislocation of right shoulder joint, (2) Altered shape and size of left lower leg, xray shows complex fracture of both bones Tibia and Fibula lower end with 3 cms stab type wound present at medial side of lower left leg, the doctor opined that injuries are grievous in nature. Ex.P.6/Discharge summaries shows that the petitioner has admitted as an inpatient at Balaji Hospital, Anekal Taluk, from 01.10.2020 to 04.10.2020 and again he was admitted as an inpatient at Narendra Hospital, from 29.10.2020 to 05.11.2020 and underwent surgery on 31.10.2020 closed reduction and shoulder immobilizer (with IV Sedation) and on 02.11.2020 ORIF with ILIM nailing for tibia, ORIF with plate and screws for fibula (under SAB) and also examined Dr.Narendra as PW.2. This court while considering the Issue No.1 has already come to the conclusion that the accident occurred due to the rash or negligent riding of the rider of Bajaj Discover motorcycle bearing Reg.No.KA51 12 MVC 4301/2020 SCCH-25 HC1659. Therefore, the Petitioner is entitled for compensation from the Respondents.
DISABILITY:
13. In the chiefexamination, the PW.2 has deposed that, one patient namely Ravindra came to his hospital and gave an alleged H/O RTA on 01.10.2020 at about 8.30 p.m., near Dommasandra while traveling in a two wheeler hit by another two wheeler, he took initial treatment osteopathy treatment and Balaji Hospital and thereafter he got admitted to their hospital on 29.10.2020 at about 12.15 p.m, with injuries and on examination both clinically and radiologically, he found old unreduced right shoulder dislocation with brachial plexus injury, fracture both bone left lower leg and he treated the patient as follows; closed reduction under general anesthesia of shoulder dislocation on 31.10.2020 and open reduction and internal fixation interlocking nailing for tibia and plate and screw for fibula 13 MVC 4301/2020 SCCH-25 under spinal anesthesia and discharged on 05.11.2020 and suture removal was done and further physiotherapy for leg and right upper limb was given as an outpatient and patient regularly following his advice and visiting his hospital advice for neurological opinion. The PW.2 further deposed that the patient recently visited their hospital on 09.05.2022 for assessing physical disability and he complains of right upper limb paralysis not completely recovered since he sustained brachial plexus injury and shoulder dislocation with nerve damage, weakness in hand wrist not able to do daily routine work and left knee pain and restriction of movement, difficulty in walking climbing stairs, stand on left leg and to use Indian toilet and on examination he found complete weakness in upper limb i.e., claw contracture, 0/5 grade all muscle of hand, he cannot even eat and do any work in his right hand and in left lower limb restriction of knee movement 50% (0 60 degree) left side and pain and effusion present and the 14 MVC 4301/2020 SCCH-25 petitioner has got permanent disability for right upper limb is 50% and to the whole body 16.6% and left lower limb is 36.9% and to the whole body is 12.3% and combined disability to the whole body is 28.9% which is permanent in nature. In the crossexamination of PW.2 it is elicited that, he has treated the petitioner, the petitioner came to their hospital for follow treatment after one month of his discharge and thereafter the petitioner did not come for further follow up treatment but only came for assessment of disability, he has no knowledge as to whether the petitioner took any follow up treatment prior to coming to him for assessment of disability, there is no surgery conducted on the shoulder, as per his knowledge there is no medical documents for brachial plexus injury, on clinical examination he found brachial plexus injury suffered by the petitioner along with the other injuries, there is no any document to show that the petitioner underwent physiotherapy to the brachial plexus injury, the 15 MVC 4301/2020 SCCH-25 fracture is united with normal alignment, there is no deformity and infection at the fracture site and there is no problem for day to day activities. Having regard to the nature of injuries sustained by the petitioner, the period of treatment that he has undergone and his age, the disability assessed by the PW.2 appears to be on higher side and hence on appreciating the entire evidence on record, as the fracture is united, his statement in the crossexamination that he came in bus to the court and the age of the petitioner the functional disability of the petitioner is considered at 18% to the whole body.
Monthly income:
14. The Petitioner has stated that he was working as a supervisor at Embassy Tech village under TCFM Pvt.
Ltd., and drawing monthly salary of Rs.20,000/. In this regard, the petitioner has produced pay slip for the month of May2020 at Ex.P.10. To substantiate the income, the Petitioner has not produced any relevant documents to 16 MVC 4301/2020 SCCH-25 prove that he was getting income from said work such as the appointment letter, bank statement, etc., or examined the employer to ascertain his income. Therefore, the version of the Petitioner that he was earning a sum of Rs.20,000/ per month, is not acceptable. Therefore, the notional income needs to be considered. At the time of accident the Petitioner was aged about 39 years as could be make out from Ex.P.7/Aadhar card of the petitioner. The accident took place in the year 2020. In absence of specific evidence for income the notional income needs to be considered and therefore by taking judicial notice of the notified notional income chart approved by the KSLSA the monthly notional income of the petitioner is considered as Rs.14,500/ per month. As such, Petitioner is entitled for the following compensation:
i) PAIN AND SUFFERING: After the accident, the Petitioner was taken to Balaji Hospital, wherein he has admitted as an inpatient from 17 MVC 4301/2020 SCCH-25 01.10.2020 to 04.10.2020 and then he was admitted as an inpatient at Narendra Hospital from 29.10.2020 to 05.11.2020 for 12 days as per Ex.P.6/discharge summaries. As per discharge summaries the petitioner admitted in the hospitals and underwent surgeries. Therefore, considering the nature of injuries, duration of treatment and underwent surgeries, the Petitioner is awarded a sum of Rs.55,000/ under this head.
ii) LOSS OF INCOME DURING LAID UP PERIOD:. As mentioned above the petitioner has sustained grievous injuries in the accident and was taken treatment in the above mentioned hospitals. Therefore, considering the nature of injuries and the duration of treatment it can be said that the Petitioner has required at least one month time for recovering from the injuries sustained by him. Hence, he is entitled for a sum of Rs.14,500/ under this head.
18 MVC 4301/2020
SCCH-25
iii) MEDICAL EXPENSES: The petitioner claimed that he incurred Rs.2,00,000/ towards medical expenses, conveyance etc., and requires more amount for his future treatment and produced 14 medical bills for Rs.1,06,170/ at Ex.P8. In the cross examination of PW.1 except suggestions of denial of Ex.P8 nothing worth is elicited and there is no contrary evidence to this. Therefore, the petitioner is entitled a sum of Rs.1,06,170/ under this head.
iv) LOSS OF FUTURE INCOME: In so far as age of the Petitioner is concerned, as discussed above he was aged about 39 years as on the date of accident. As per Sarala Verma's case the appropriate multiplier applicable to his age is 15. As per the appreciation of evidence he suffered 18% of functional disability. Therefore, the Petitioner is entitled a sum of 19 MVC 4301/2020 SCCH-25 Rs.4,69,800/ (Rs.14,500/x12 x15 x 18% = Rs.4,69,800/) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 39 years at the time of accident. He has sustained grievous injuries underwent surgeries and as per consideration of this Tribunal, he is suffering from 18% permanent disability. The Petitioner has to suffer this disability throughout his life. Because of this he will have to lose some amenities and comforts. Therefore, considering the age and nature of injuries that the Petitioner has suffered a sum of Rs.17,000/ is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner took treatment in Balaji Hospital and Narendra Hospital, wherein admitted as an inpatient for 12 days. Therefore, as during this period 20 MVC 4301/2020 SCCH-25 he must have spent considerable amount on his conveyance, attendant charges, food and nourishment etc.. Therefore, the Petitioner is entitled for a sum of Rs.20,000/ under this head.
15. The Petitioner is entitled compensation under the following heads:
1. Pain & suffering Rs.55,000/
2. Loss of income during laid Rs.14,500/ up period
3. Medical expenses Rs.1,06,170/
4. Loss of future income Rs.4,69,800/
5. Loss of future amenities Rs.17,000/ and happiness
6. Attendant, conveyance, food Rs.20,000/ and nourishment charges TOTAL Rs.6,82,470/ The total compensation comes to Rs.6,82,470/ and if it rounded off then it comes to Rs.6,82,500/ and same is awarded to the petitioner under the above heads.21 MVC 4301/2020
SCCH-25 LIABILITY:
16. The respondent No.2/Insurance Company has failed to prove their defence. The existence of policy is admitted and therefore the respondents being the owner and the insurer are jointly and severally liable to pay compensation to the petitioner. However, as the policy existed hence the insurer is to indemnify the insured respondent No.1 and to pay compensation to the petitioner. The Petitioner has claimed a sum of Rs.25,00,000/ but he is entitled only for a sum of Rs.6,82,500/ with interest @ 6% per annum from the date of petition till the date of deposit. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
17. Issue No.3: For the reasons and discussions made above and findings to the above issues, this Tribunal proceeds to pass the following: 22 MVC 4301/2020 SCCH-25 ORDER The petition is allowed in part with cost.
The Petitioner is entitled for compensation of Rs.6,82,500/ (Rupees Six Lakhs Eighty Two Thousand and Five Hundred only) alongwith interest @ 6% p.a. from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.2/Insurance Company of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
23 MVC 4301/2020
SCCH-25
On deposit of compensation and
interest, 25% of compensation shall be
deposited in any nationalized or schedule bank in the name of the Petitioner for period of 3 years and balance amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 31st day of January 2023).
(Miss B.T.ANNAPOORNESHWARI) XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Sri.Ravindra V.
PW.2 Dr.Narendra
24 MVC 4301/2020
SCCH-25
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR Ex.P.2 True copy of FIS Ex.P.3 True copy of Spot Sketch Ex.P.4 True copy of Wound certificate Ex.P.5 True copy of Chargesheet Ex.P.6 Discharge summary (2 in nos) Ex.P.7 Notarized copy of Aadhar card of petitioner
(compared with original and original is returned) Ex.P.8 14 medical bills amounting to Rs.1,06,170/ Ex.P.9 8 medical prescriptions Ex.P.10 Pay slip for the month of May2020 (subject to production of authenticated copy or certificate u/Sec.65 B of Evidence Act or Examination of concerned employer Ex.P.11 One Inpatient record Ex.P.12 Disability evaluation form (three pages) Ex.P.13 Ten xrays List of Witnesses examined for Respondent/s:
- NIL List of documents exhibited for Respondent:
- NIL (Miss B.T.ANNAPOORNESHWARI) 25 MVC 4301/2020 SCCH-25 XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
31.01.2023 For judgment Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part with cost.
The Petitioner is entitled for compensation of Rs.6,82,500/ (Rupees Six Lakhs Eighty Two Thousand and Five Hundred only) alongwith interest @ 6% p.a. from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner. 26 MVC 4301/2020
SCCH-25 However, the Respondent No.2/Insurance Company of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
On deposit of compensation and interest, 25% of compensation shall be
deposited in any nationalized or schedule bank in the name of the Petitioner for period of 3 years and balance amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/. Draw decree accordingly.
XXI A.C.M.M.& XXIII A.S.C.J., 27 MVC 4301/2020 SCCH-25 Bengaluru.28 MVC 4301/2020
SCCH-25 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY MVC NO.4301/2020 PETITIONER/S: Sri.Ravindra V. S/o Venkataravanappa V., Aged about 39 years, R/o Marasanahalli village, Srinivasapura Taluk, Kolar District.
(By Sri.T.V.Ramesh, Advocate.) V/S RESPONDENT/S: 1. Sri.Shankarappa S/o Munivenkatappa Major, R/o No.119/2, Tyayakanahalli village, Bidaraguppe post, Anekal Taluk, Bangalore07.
(Exparte)
2. The Royal Sundaram Alliance Insurance Company Ltd., Branch Office Raghavendra plaza, 29 MVC 4301/2020 SCCH-25 1st floor, 1st cross, Hosur main road, Wilson Garden, Bangalore27.
(By Sri.V.Shrihari Naidu, Advocate) WHEREAS, this petition filed on by the Petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss.B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition is allowed in part with cost. The Petitioner is entitled for compensation of Rs.6,82,500/ (Rupees Six Lakhs Eighty Two Thousand and 30 MVC 4301/2020 SCCH-25 Five Hundred only) alongwith interest @ 6% p.a. from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.2/Insurance Company of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
On deposit of compensation and interest, 25% of compensation shall be deposited in any nationalized or schedule bank in the name of the Petitioner for period of 3 years and balance amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day of 2023.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
31 MVC 4301/2020
SCCH-25 MEMORANDUM OF COST By the __________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs.
_________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR