Bangalore District Court
Sri. Annayappa vs The Managing Director on 2 March, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J. BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 2nd DAY OF MARCH, 2016.
MVC.No.680/2013
PETITIONER: Sri. Annayappa
Aged about 42 years
S/o. Late. Dasappa
Residing at Billapura Village,
Huskur Circle, Sarjapura Hobli,
Anekal Taluk,
Bangalore District.
Petitioner became abnormal, hence
appointed his next friend and natural
guardian Smt.Ambujamma @ Ambuja,
aged about 38 years
W/o. Annayappa
Residing at Billapura Village,
Huskur Circle, Sarjapura Hobli,
Anekal Taluk,
Bangalore District.
(By Pleader Sri.Reeyazalla Sharief)
Vs.
RESPONDENT: The Managing Director,
B.M.T.C.
K.H. Road,
Bangalore.
(By Pleader Sri.M.N.Krishna)
2 MVC.680/2013
SCH-16
JUDGMENT
The Petitioner has filed this claim petition under Section 166 of Motor Vehicles Act, 1989, praying this Court to grant compensation on account of the grievous nature of the injuries sustained by him in motor vehicle accident.
2. The brief facts of the petition averments are as under:
On 24.10.2012 at about 8.10 p.m. the Petitioner was riding his Scooter bearing Reg.No.KA-04-6532 from Sarjapura towards Billapura along with pillion rider by name Ashok Kumar on NH-207 road. At that time one BMTC Bus bearing Reg.No.KA-50-F-019 driven by its driver in a high speed and dashed against the Petitioner's Scooter. Due to the impact, the Petitioner and pillion rider fell down. The Petitioner sustained severe head injuries and immediately he was shifted to Sparsh Hospital. There afterwards, the Petitioner was shifted to Apollo Hospital for further treatment. It is stated that, the Petitioner was inpatient from 24.10.2012 to 10.12.2012 and during the said course of treatment, he was under ventilator support. On 29.10.2012 the Petitioner has undergone surgery for tracheostomy and on 15.11.2012, the 3 MVC.680/2013 SCH-16 Petitioner has undergone surgery for fixation of percutaneous endoscopic gastrostomy (PEG) for long term care and on 17.11.2012 the Petitioner underwent surgery for removal of PEG. On 24.12.2012 the Petitioner has undergone surgery for tracheotomy.
3. It is stated that, as on the date of the accident, the Petitioner was aged about 40 years and he was working as Lorry Driver, earning Rs.7,500/- p.m. Due to the impact of the said accident, the Petitioner has became permanently disabled and spent more than Rs.10,00,000/- for his treatment.
4. It is further case of the Petitioner that, the accident was occurred due to rash and negligent driving of the BMTC Bus bearing Reg.No.KA-50-F-019 as against whom, the Sarjapura Police have registered case in their Crime No.208/2012 for the offences punishable under Sec.279, 338 of IPC. Hence, prayed to allow the petition.
5. In response to the summons, Respondent appeared before the Court and filed his objection stating that, on the date of the accident, as driver was proceeding in a moderate speed observing all traffic rules and regulations and 4 MVC.680/2013 SCH-16 at that point of time, the Petitioner was proceeding on Scooter bearing Reg.No.KA-04-6532 came from opposite direction in a rash and negligent manner and dashed to the left bumper portion of the Bus, fell down and sustained the alleged injuries. It is contended that, with the help of the public, the Petitioner was shifted to hospital in 108 ambulance and the accident was occurred due to rash and negligent riding of the Petitioner himself.
6. The Respondent denied age, occupation and income and also accident was due to negligence of driver of the BMTC Bus. The Respondent further denied that, the Petitioner has spent more than Rs.10,00,000/- and he has sustained severe head injuries. The Respondent has further contended that the compensation claimed by the Petitioner is on exorbitant and the medical bills of the Petitioner are created. Hence, on all these grounds prays to dismiss the petition with costs.
7. On the basis of the above pleadings, the following issues have been framed:
ISSUES
1. Whether the Petitioner proves that he met with an RTA that occurred on 5 MVC.680/2013 SCH-16 24.10.2012 at about 8.10 p.m. near Billapura gate infront of Petrol Bunk, Attibele, Sarjapura Road, Anekal Taluk and the Petitioner sustained injuries due to rash and negligent driving of BMTC Bus bearing Reg.NO.KA-50-F-
019?
2. Whether the Petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
8. The guardian of the Petitioner was examined as PW-3. She got marked documents from Ex.P.9 to Ex.P.20. The Doctors who treated the Petitioner were examined as PW-1 and PW-2 and Ex.P.1 to P.8 were marked.
The Driver of the Bus was examined as RW-1 and no documents were marked on his behalf.
9. I have heard the arguments and perused materials on record. The learned counsel for the Respondent has filed his written notes of arguments.
10. By considering the evidence on record and because of my below discussed reasons, I answer the above Issues in the followings:
Issue No.1: In the Affirmative Issue No.2 Partly in the Affirmative 6 MVC.680/2013 SCH-16 Issue No.3: As per Final Order for the following reasons:
REASONS ISSUE NO.1:
11. The Petitioner has come up with specific case that, on 24.10.2012 at about 8.10 p.m. when he was proceeding on Scooter bearing Reg.No.KA-04-6532 from Sarjapura towards Billapura, at that time, the BMTC Bus bearing Reg.No.KA-50- F-019 driven by its driver in a rash and negligent manner dashed against his Scooter in which, the Petitioner has sustained severe head injuries.
12. As the Petitioner was not able to give evidence before this Court and became abnormal, his wife stepped into witness box as PW-3. She has reiterated the petition averments stating the manner of the accident, injuries sustained by the Petitioner, treatment taken by him and also registration of criminal case against the driver of the Bus.
13. She got marked copy of FIR at Ex.P.9, copy of Complaint at Ex.P.10, copy of Mahazar at Ex.P.11, copy of IMV Report at Ex.P.12, copy of Wound Certificate at Ex.P.13, witness statements at Ex.P.14, copy of Charge sheet at Ex.P.15, notarized copy of Election ID Card at Ex.P.17 & 18, 7 MVC.680/2013 SCH-16 notarized copy of D.L. at Ex.P.19 and 18 Medical Bills at Ex.P.20.
14. On perusal of Complaint, which is marked at Ex.P.10, it is revealed that, one Venkatesh S/o. Venkatappa lodged the complaint on 25.10.2012 stating that in the night of 24.10.2012 the Petitioner and B.K.AShok Kumar were proceeding towards Billapura, at that time, the BMTC Bus bearing Reg.No.KA-05-F-019 came in a rash and negligent manner and dashed against the Scooter of the Petitioner, because of which, he has sustained injuries.
15. On the basis of the Complaint, the FIR was lodged at Ex.P.9. Spot Panchanama at Ex.P.11 was conducted. Further, IMV Report as per Ex.P.12 reveals that, front bumper of the Bus was damaged. Further it reveals that, front wind screen glass also damaged in the accident. The IMV Report further reveals that, front left side panel sheet, handle bar, right side body, head light damaged, the above said damages is caused to the Scooter of the Petitioner. The Wound Certificate at Ex.P.13 reveals that, the Petitioner has sustained multiple hemorrhagic contusions involving bilateral temporal, left parietal with sub arachnoid hemorrhage, 8 MVC.680/2013 SCH-16 pneumocephanusand bilateral cerebellar contusions and fracture right occipital bone, fracture left petrous temporal bone diffuse cerebral edema. The statement of witnesses which were marked as Ex.P14 reveals that, the accident was due to rash and negligent manner driving of driver of the BMTC Bus. After completion of investigation, the jurisdictional Police have also filed charge sheet at Ex.P.15 against driver of the offending Bus.
16. The driver of the Respondent Company was examined as RW-1. He has stated that, on 24.10.2012 at about 8.10 p.m. when he was on duty on BMTC Bus bearing Reg.No.KA-50-F-019 when he was proceeding slowly near Billapura gate in Sarjapura, Attibele Main Road, on that point of time, the rider of the Motor Cycle bearing Reg.No.KA-04- 6532 came from left side of the Bus in a rash and negligent manner and suddenly took right turn in front of the Bus without giving any signal and the rider of the Motor Cycle lost control over the Motor Cycle and fell down and sustained alleged injuries. In his cross-examination, the RW-1 has admitted that, a case was registered against him after the said accident. He has stated that, his complaint was not 9 MVC.680/2013 SCH-16 received by the jurisdictional police and he has not lodged complaint before higher authorities. He admits that he has not questioned the filing of charge sheet against him before any Court of law.
17. I have carefully perused the objection of Respondent, in which he has taken up contention that, from the opposite direction the Petitioner came in his Scooter bearing Reg.No. KA-04-6532 and dashed to the left portion of bumper and sustained injuries. But in his evidence RW-1 has stated that, suddenly the Petitioner came from front side by overtaking him from the left side of the Bus and suddenly took his Motor Cycle to the right side without giving any signal and therefore, the accident was caused. It is to be noted that, as per the objection, the accident caused when the Petitioner came from opposite direction, but as per the evidence of RW-1 the accident took place when the Petitioner by overtaking from left side of the Bus, suddenly took to the right side without giving any signal. So, the variance between pleadings and proof is at one stretch. In the objection, the Respondent states that the accident took place when the Petitioner hit to the Bus from opposite direction and in the 10 MVC.680/2013 SCH-16 evidence he states that, the Petitioner came from left side by overtaking the Bus and suddenly took right turn without giving any signal and accident took place and thus there is variance between pleadings, proof and evidence of RW-1. Moreover, the charge sheet was filed against the driver of the BMTC Bus and he has not challenged the said charge sheet. Petitioner has also produced the Assessment Report at Ex.P.1, Discharge Summary at Ex.P.2, Outpatient Record at Ex.P.3, Inpatient Records at Ex.P.4 to 6, 10 X-rays at Ex.P.7 and 17 CT Scans at Ex.P.8. These documents clearly disclose that, the Petitioner has sustained severe head injuries in the accident. Moreover, the Respondent has not denied the involvement of the Bus in the accident. Hence, when oral as well as documentary evidence is read as whole, it is clear that, the accident was due to rash and negligent driving of driver of the BMTC Bus bearing Reg.No.KA-50-F-019 Hence, I answer Issue No.1 in the Affirmative.
ISSUE No.2:
18. The Wound Certificate of Petitioner which is marked at Ex.P.13 reveals that, the Petitioner has sustained the following injuries;
11 MVC.680/2013
SCH-16
1. Multiple hemorrhagic contusions involving bilateral temporal, left parietal with sub arachnoid hemorrhage, pneumocephauus and bilateral cerebellar contusions.
2. Fracture right occipital bone, fracture left petrous temporal bone, diffuse cerebral edema.
19. In the opinion of the Doctor the above said injuries are grievous in nature. Further, the Petitioner has also examined Dr.Ganesh K. Murthy of Apollo Hospital and got marked Discharge Summary, Outpatient Record, Inpatient Record, X-rays and CT Scans at Ex.P.2 to Ex.P.8. He has stated that, the Petitioner has sustained extensive scalp hematoma in vertex, occipital and nape of neck, multiple abrasions over the extremities and CT brain showed right posterior temporal bone fracture with underlying contusion and thin subdural hematoma 3-4 mm thick, left temporal contusion, right petro us bone fracture, right occipital bone fracture, thin subdural hematoma, right cerebellar contusion, blood in cerebello pontine cistern and 4th ventrical and tentorial subarachnoid haemorrhage. Further, PW-2 has stated that, the Petitioner underwent tracheostomy after 5 days, the CT scans showed resolving contusions and 12 MVC.680/2013 SCH-16 subdural haematoma and was continued on conservative management. He stated that, the Petitioner was admitted in ICU and put on ventilator. Further PW-2 has stated that, the Petitioner was shifted to high dependency unit on 02.11.2012 and his eye opening was painful and on 15.11.2012 he underwent percutaneous endoscopic gastrostomy (PEG) under general anesthesia on 2nd post op day developed fever, raised heart rate and abdominal distention. The CT scan further revealed displacement of the PEG tube and free fluid in the abdomen suggestive of peritonitis. Further PW-2 has stated that, neuro psychlogicl and cognitive assessment revealed poor attention span, he had memory disturbance and he cannot follow instructins. In the cross-examination PW-2 has stated that, no surgery was conducted to the Petitioner and conservative treatment was given to the Petitioner. The PW-2 has stated that, the Petitioner may or maynot recover and as per Ex.P.1 he has submitted the report.
20. The Discharge Summary which is marked at Ex.P.2 reveals that, the Petitioner was an inpatient from 24.10.2012 to 10.12.2012 for about 50 days in Apollo 13 MVC.680/2013 SCH-16 Hospital. He has sustained fracture of right occipital bone, fracture left petrous temporal bone, diffuse cerebral edema involving bilateral temporal, left parietal associated with SAH, pneumocephalus and B/L cerebellar contusions. Looking to the period for which the Petitioner was inpatient in Apollo Hospital and also nature of the above said injuries, this Cout award a sum of Rs.50,000/- under the head pain and sufferings.
21. The Petitioner's Discharge Summary reveals that, he was an inpatient for about 50 days at the Apollo Hospital. During this period he might have spent considerable amount towards his conveyance, nutritious food and attendant charges. Looking to the period for which the Petitioner was inpateint, a sum of Rs.50,000/- under the head conveyance, attendant charges and nutritious food.
22. The Petitioner has produced Medical Bills as per Ex.P.20 worth Rs.8,31,094.74. The Petitioner took treatment as inpatient for a peiod of more than 50 days in Apollo Hospital for the fracture right occipital bone, fracture left petrous temporal bone and diffuse cerebral edema sustained by him and took conservative treatment. Looking to the 14 MVC.680/2013 SCH-16 grievous nature of the injuries sustained by the Petitioner and medical expenses incurred, it is just and proper to award compensation under the above said head. I have meticulously gone through the medical bills produced by the Petitioner. Therefore, Petitioner is entitled for a sum of Rs.8,31,094.74 which is rounded off to Rs.8,31,000/- under the head medical expenses.
23. The Petitioner claims that he is Driver by profession. He has produced Driving Licence at Ex.P.19, it reveals that, Petitioner had driving licence to drive LMV-GV, Transport Vehicle, Public Sector Bus. This driving licence was valid till 23.09.2020. Though the Petitioner has not produced any documents to show that he was drawing a salary of Rs.7,500/-, but the fact remains that the Petitioner was Driver by profession, which is revealed from Ex.P.19. The Petitioner has sustained severe head injuries and he has lost income during the period of treatment. In the absence of any materials, the notional income of the Petitioner is modified at Rs.7,000/-p.m. The Petitioner has taken treatment for a period of 4 months. He is still under treatment. The Petitioner has sustained three fractures which are grievous in nature. 15 MVC.680/2013
SCH-16 He might have been prevented from doing his work for a period of 4 months. Hence, at the rate of Rs.7,000/- p.m., Petitioner is entitled for Rs.28,000/- under the head loss of income during laid up period.
24. The evidence of PW-1 and PW-2 reveals that, the Petitioner has sustained severe head injuries. His Discharge Summary also reveals that, the attention of the Petitioner could not susain for long, his comprehensions of instructions was found not intact, he was not able to maintain eye contact throughout the session, he was co-operative and not very attentive, his speech was not clear, sometimes his thoughts were not coherent with the situations. As per the Discharge Summary, the memory status of the Petitioner was not stable and reent memory was also not stable, the mental balance of the Petitioner was below average and his attention and concentration could not sustain for very long, the verbal retention was below average so also the visual retention was below average, his recognition was below average and delayed and immediate recall was also below average. In the opinion of the Doctor, the non verbal intelligence was below average. Hence, it is also to be noted that the Petitioner was feeded 16 MVC.680/2013 SCH-16 through jejunostomy tube. As the Petitioner is a driver by profession, the above said injuries have caused 100% disability to the Petitioner, which could be revealed from the evidence of PW-1 and PW-2. The notional income of the Petitioner is taken as Rs.7,000/- p.m. The Petitioner was aged about 42 years as on the date of the accident. The proper multiplier applicable for his age is 14. Hence, the loss of future income on account of 100% disability comes to Rs.11,76,000/- (Rs.7,000/- x 12 x 14).
25. The Petitioner has sustained fracture of right occipital bone, fracture left petrous temporal bone and diffuse cerebral edema, which resulted in loss of memory power and non verbal intelligence was below average. The above said fractures may come in the way of performing day-to-day activities of the Petitioner. Hence, a sum of Rs.1,00,000/- is awarded under the head loss of amenities.
26. As the Petitioner has sustained grievous injuies resulting in fracture, which resulted in loss of memory power, verbal and visual retention was below average. Though the Petitioner took treatment as inpatient for more than 50 days, still in view of his post head injury cognitive impairment, he is 17 MVC.680/2013 SCH-16 unlikely to resume his profession as driver and due to inappropriate verbal response and deficiency in comprehension, he is not capable of attending his case in Court. So, he may require future medication. Hence, considering the nature of the grievous injuries sustaind by the Petitioner, it deems fit to award a sum of Rs.1,00,000/- under the head future medical expenses.
27. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs. 50,000/- 2 Conveyance, attendant and Rs. 50,000/-
nutritious charges 3 Medical expenses Rs. 8,31,000/- 4 Loss of income during laid up Rs. 28,000/-
period 5 Loss of income due to Rs. 11,76,000/-
permanent disability 6 Loss of future amenities and Rs. 1,00,000/-
enjoyment 7 Future medical expenses Rs. 1,00,000/-
Total Rs. 23,35,000/-
In total, the Petitioner is entitled for the compensation of Rs.23,35,000/-.18 MVC.680/2013
SCH-16 Interest:
28. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a. Liability:
29. The Respondent has not specifically denied the policy and its validity, in his objections. The involvement of 19 MVC.680/2013 SCH-16 the vehicle was also not denied by the Respondent. Therefore, in the absence of any contra materials, the Respondent being the Managing Director of the BMTC, is liable to pay compensation. Accordingly, Issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
30. In view of my above findings, the petition deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the Petitioner is allowed in part.
The Petitioner is entitled for compensation of Rs.23,35,000/- (Rs. Twenty Three Lakhs Thirty Five Thousand Only) with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.1,00,000/-) from the date of petition till realisation.
The Respondent is liable to pay the award amount within two months from the date of this order.
Out of the said compensation amount awarded, 50% of the compensation amount with 20 MVC.680/2013 SCH-16 proportionate interest shall be deposited in the name of the Petitioner as FD in any nationalized bank for a period of three years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining amount with proportionate interest shall be released to the Petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 2nd March, 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of Petitioner:
PW-1 : Dr. Sugami
PW-2 : Dr. Ganesh K. Murthy
PW-3 : Smt. Ambujamma @ Ambuja
Documents marked on behalf of Petitioner:
Ex.P.1 : Neuo Psychlogical Assessment Report Ex.P.2 : Discharge Summary Ex.P.3 : Outpatient Record Ex.P.4 to Ex.P.6 : Inpatient Record Ex.P.7 : 10- X-rays Ex.P.8 : 17 CT Scans Ex.P.9 : Copy of FIR 21 MVC.680/2013 SCH-16 Ex.P.10 : Copy of Complaint Ex.P.11 : Copy of Mahazar Ex.P.12 : Copy of IMV Report Ex.P.13 : Copy of Wound Certificate Ex.P.14 : 5 copy of Witness Statements Ex.P.15 : Copy of Charge Sheet Ex.P.16 : Discharge Summary Ex.P.17 & : Notarized copy of Election ID Card Ex.P.18 Ex.P.19 : Notarized copy of D.L. Ex.P.20 : 18 Medical Bills Witnesses examined on behalf of Respondent:
RW-1 : Sri. M. Manjunath Documents marked on behalf of the Respondent:
-NIL-
(SATISH.J.BALI) MEMBER:MACT, BANGALORE.