Bangalore District Court
Sri. Umesha.K.L vs ) The Regional Manager on 11 January, 2023
KABC020108662020
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL
CAUSES, BENGALURU (SCCH18)
Dated: This the 11th day of January 2023
Present: V.NAGAMANI
B.A.L., LL.B., LL.M.,
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.2085/2020
Petitioner Sri. Umesha.K.L,@ Umesh,
S/o. Lingappa, Age : 44 years
Presently residing at:
No.302, Subhashnagar,
Nakshatra Appartment,
Kengeri,
Bengaluru - 560060.
Previously residing at:
No.26, 15th Cross,
M T S Layout,
Kengeri Upanagar,
Ramohalli,
Bengaluru560060.
(By Pleader Shri R. Shivakumar)
2 SCCH-18 MVC 2085/2020
V/s
Respondents 1) The Regional Manager,
Reliance General Insurance
Co. Ltd., No.28, 5th Floor,
Southern Portion, East Wing,
Centenary Building,
M.G.Road, Bengaluru - 560001.
(By Pleader Smt.T.N.Malathi)
2) Mr.Manesh Ram Kumar,
S/o. Ram Kumar,
Flat No.6047, Plot No.22/23,
Vrindawan CHS,
Ranjanpada, Sec.27,
Kharghar, Navi Mumbai,
Panvel Raigarh,
Maharastra - 410210.
(By pleader Shri.U. Prasanna
Kumar)
*****
*J U D G M E N T* This judgment is emerged consequent upon the petition filed by the petitioner U/S 166 of M.V. Act, claiming compensation of Rs.30,00,000/ on account of the injuries sustained by him, in a road traffic accident.
3 SCCH-18 MVC 2085/2020
*FACTS OF THE CASE IN NUTSHELL*
2. Facts leading to the case of the petitioner forthcoming in the petition that, on unfortunate date on 30.6.2020 at about 9:30 p.m., the petitioner was riding the Two Wheeler bearing registration No.KA 53K7732 on MysoreBengaluru Main Road, carefully and cautiously observing all the traffic rules and regulations. When he reached near Madhu Junction, Kengeri, Bengaluru City, at that time, the driver of the Eicher lorry bearing Registration No.MH46BF2671, driven the same, in a rash and negligent manner with high speed, thereby lost control and dashed against petitioner's motor cycle. Consequently, the petitioner fell down and sustained grievous injuries in the said accident.
3. It is stated that, immediately, the petitioner was shifted to Mathru hospital, Bengaluru and admitted as an inpatient from 30.5.2020 to 31.05.2020, Thereafter, he was admitted to SSNMC 4 SCCH-18 MVC 2085/2020 Super Speciality hospital, Bengaluru, wherein he took treatment as an inpatient from 31.5.2020 to 11.6.2020. He spent Rs.6,00,000/ towards treatment, medicines, nourishment and conveyance charges.
4. It is stated that, prior to the accident, the petitioner was hale and healthy, and he was aged about 44 years and was doing business, Proprietor of M/s.Glory Chemicals & Solvants, Bengaluru and an income tax assessee, earning a sum of Rs.3,25,250/. Due to the accident, the petitioner had suffered mental and physical as well as financial hardship.
5. It is alleged in the petition that, accident was purely on account of the negligence of the driver of the Eicher lorry, bearing Registration No.MH46 BF2671. As such, the respondent No.1 and 2 being the insurer and owner of the offending vehicle, are jointly and severally liable to pay compensation to the 5 SCCH-18 MVC 2085/2020 petitioner. Accordingly, petitioner has filed the instant petition, claiming compensation.
6. After service of the notice of this petition, the respondent No.1 had appeared before the Court through counsel and filed written statement, in answer to the case of the petitioner. On the other hand, the respondent No.2 remained absence and placed exparte.
7. The respondent No.1, in the written statement has not seriously disputed the accident and the injuries sustained by the petitioner. But, strongly denied the allegation of the actionable negligence on the part of the driver of the offending vehicle. Further, contended that, the owner of the vehicle has not complied the mandatory provisions of section 134(c) of the Motor Vehicles Act in furnishing the better particulars. Another contention is that, the goods lorry bearing registration No.MH46BF2671 was not holding valid permit to ply on the 6 SCCH-18 MVC 2085/2020 route/place of of alleged accident and thereby the owner of the vehicle violated the terms and conditions of the policy. As such the respondent is not liable to pay any compensation. And contended that, the liability of the respondent is subjected to the terms and conditions of the policy. It is specifically contended that, the alleged accident occurred only due to the negligence on the part of the petitioner, who was riding the motor cycle in a rash and negligent manner and unable to control the speed, fallen from the motor cycle, resulting in the alleged accident. And contended that, there is one day delay in lodging the complaint, which clearly shows that, the petitioner in colluding with the jurisdictional police, have set up and fixed the alleged vehicle in question, which was not involved in the accident at all. And the compensation claimed by the petitioner is highly excessive and exorbitant. With all these 7 SCCH-18 MVC 2085/2020 main grounds, prayed to dismiss the petition against their company.
8. On the basis of the rival pleadings of both the parties, for final determination of the case, framed the following:
*ISSUES*
1. Whether the petitioner proves that, he had sustained grievous injuries in motor vehicle accident, that was taken place on 30.5.2020 at about 9.30 a.m., near Madhu Junction, on MysoreBengaluru main road, Kengeri, Bengaluru due to the rash and negligent driving of the driver of Eicher Lorry bearing registration No.MH46BF2671 in an actionable negligence ?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?
3. What order or award?8 SCCH-18 MVC 2085/2020
9. In order to substantiate the case of the petitioner, by name Sri.Umesh.K.L. @ Umesh, during the course of his evidence, placed his affidavit evidence, in lieu of examinationinchief, who examined as PW1 in the case on hand. At the time of his evidence, 16 documentary evidence got marked as Ex.P1 to Ex.P16. In addition to his evidence Dr.Rommel.S, was examined as PW2. At the time of his evidence, 4 documentary evidence got marked as Ex.P17 to Ex.P20, for consideration.
10. On the other hand, except filing written statement the respondent No.1 has not adduced rebuttal evidence for consideration to prove all the defenses forthcoming in its written statement. And the respondent No.1 remained exparte. Hence, matter was set down for arguments.
11. Heard the argument of both the counsel. And perused the materials available on record. At the time of argument, learned counsel for the 9 SCCH-18 MVC 2085/2020 petitioner relied on the following authorities for consideration,1) 2012 ACJ 191 (SC) between Laxman Vs Divisional Manager, Oriental Ins. Co. Ltd. & Another 2) 2020 ACJ 2556 (Calcutta) between Jitu Pramanik Vs National Ins. Co. Ltd., & Another, 3) 2015 ACJ 721 between Jakir Hussein Vs Sahir and others, 4) 2020 ACJ 1145 (BOMBAY) between New India Assurance Co. Ltd. Vs Sushama Mahendra Sanawane & Others, 5) 2022 ACJ 1326 (Gauhati) between United India Insurance Co.Ltd., Vs Kusum Rajkhowa & Another, 6) 2011 AIR SCW 2609 between Nagarajappa Vs Divisional Manager, Oriental Insurance Co. Ltd., 7) 2005 ACJ 644 (KAR) between M.V.Chowdappa Vs Mohan Breweries & Distilleries Ltd. & Another and 8) 2022 ACJ 205 SC between Poongavanam Vs Reliance General Ins. Co. Ltd. & Another.
12. I have gone through the propositions laid down in the said authorities, with respect to the appreciation of the evidence, assessment of disability, and appreciation of the medical evidence, and the medical certificate of the doctor, and also, consideration of the disability, on various heads. And 10 SCCH-18 MVC 2085/2020 with regard to the appreciation of thd income tax returns documents.
13. On appreciation of the evidence available on record, my findings to the aforesaid 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:
R E A S O N S ISSUE NO.1:
14. It is the case of the petitioner that, due to the actionable negligence on the part of the rider of the offending vehicle Eicher lorry bearing registration No.MH46BF2671, alleged accident had taken place. Consequently, the petitioner had sustained grievous injuries. On the other hand, the respondent No.2 being owner of the offending vehicle had not appeared before the Court inspite of service of notice, remained absent and placed exparte. Even 11 SCCH-18 MVC 2085/2020 though, the respondent No.1 not seriously disputed the accident and injuries sustained by the petitioner, denied the allegation of actionable negligence on the part of driver of the offending vehicle. And contended that, due to the mistake on the part of the petitioner himself, alleged accident, and its consequences had taken place.
15. Onus probandi is on the petitioner Umesh K.L., to prove the above issue. To discharge the burden lies on the petitioner, relied on his affidavit evidence, wherein, he reiterated the main petition averments about the accident and negligence caused by the driver of the offending vehicle as on the date of the accident, which caused injuries to him. In support of the evidence of the petitioner, produced police documents as per Ex.P.1 to Ex.P.7 and medical documents as per Ex.P.8, Ex.P.9, Ex.P.15 and Ex.P.16. In addition to this, in connection with his age proof, produced DL as per Ex.P.10. Further, to 12 SCCH-18 MVC 2085/2020 prove his income as on the date of the accident, produced income tax returns, registration certificate, GST certificate and PAN card as per Ex.P.11 to Ex.P.14. In addition to this, relied on the evidence of Dr. Rommel.S who examined as PW2 along with the documentary evidence Ex.P.17 to Ex.P.20. On the other hand, it is pertinent to note that, none of the respondents placed rebuttal evidence to disprove the case of the petitioner. In such a situation, it is incumbent upon the court to assess the evidence given by the petitioner carefully in order to come to the proper conclusion.
16. On appreciation of the documentary evidence placed on record, goes to show that, alleged accident had taken place on 30.5.2020 and first information in connection with this case was given on 31.5.2020 by the complainant. In connection with one day delay in giving first information is concerned, the complainant narrated in his complaint that, since 13 SCCH-18 MVC 2085/2020 he was taking treatment in the hospital belated complaint was given. On the basis of his complaint, criminal law set in motion against the driver of the offending vehicle alleging that, he has committed the offences punishable under Sec.279 and 337 of IPC. In the recitals of the complaint, there is a clear mention about the involvement of the offending vehicle in the accident. If at all, the driver of the offending vehicle was innocent, he could have made an effort to question the recitals of complaint and Ex.P.1. And also could have filed counter complaint in order to prove his innocence, and to disprove the case of the petitioner.
17. Added to this, on going through the recitals of the mahazar and spot sketch marked at Ex.P.3 and Ex.P.4 reflect that, due to the involvement of the offending vehicle and also consequent upon the negligent driving of the driver of the lorry in question, the accident and its consequences were taken place. 14 SCCH-18 MVC 2085/2020 As per the opinion of the motor vehicle inspector as per Ex.P.5, accident was not due to any mechanical defects of vehicles involved in the accident. And the damages noted in the said document remained unquestioned. As per the wound certificate marked at Ex.P.6 goes to show that, on the history of RTA, the petitioner had sustained grievous injuries. To disprove recitals of all these documents, no rebuttal evidence is on record, from the side of the respondents.
18. Ultimately, on going through the final report submitted by the investigation officer as per Ex.P.7 goes to show that, after due investigation process final report has been submitted against the driver by name Mohammed Aswak Ahamedh, alleging that, he had committed the offences punishable under Section 279 and 338 of IPC. In column No.17 of the Ex.P.7, there is a clear narration to the effect that, due to the negligent driving of the driver of the 15 SCCH-18 MVC 2085/2020 offending vehicle, consequently the petitioner had sustained grievous injury. The final report submitted by the investigation officer remained unquestioned and unchallenged by the other side. Even at the time of crossexamination of PW1, though several questions put to the witness, nothing worthwhile is culled out, to prove the innocence of the driver of the offending vehicle and to eradicate all the allegations made by the petitioner against the driver of the offending vehicle. Hence, I am of the view that, the petitioner herein, has placed satisfactory and convincing evidence, to prove the above issue and no suspicion circumstance to say that, the petitioner had engineered the documentary evidence for the sake of this case and to grab compensation.
19. In the light of my detailed discussions held above, I am of the view that, the petitioner had placed convincing and reliable evidence, to prove the fact in issue, in the case on hand. The respondent No.1 has 16 SCCH-18 MVC 2085/2020 utterly failed to shaken the evidence of the petitioner, and to prove the defenses, through rebuttal evidence. Accordingly, I am of the view that, the alleged accident had occurred, due to the rash and negligent driving of the driver of the Eicher Lorry bearing registration No.MH46BF2671. Hence, without making much discussion on the point of the rash and negligent driving of the driver of the offending vehicle, I am answering the Issue No.1, in the Affirmative.
ISSUE NO.2 :
20. This issue is with respect to the entitlement of relief claimed by the petitioner. The petitioner through this petition claiming compensation of Rs.30,00,000/ on account of the injuries sustained by him in the accident, under different heads.
21. Before appreciation of the evidence placed by the petitioner about the injuries sustained by him, in the accident and its consequences, it is apt to note 17 SCCH-18 MVC 2085/2020 herein, the preposition laid down in the following land mark judgment, while appreciating the injury cases in Motor Vehicle Act.
Civil Appeal No.8981/2010 D.D. 18.10.2010 Rajkumar V/s Ajay Kumar & Another.
"In the aforesaid case, it was held that, the court has to make judicious attempt to award compensation to the loss suffered by the claimant. The compensation should not be assessed conservatively. On the other hand, compensation should also not be endeavoring to secure some uniformity and consistency. The object of awarding compensation is to make good the loss suffered as a result of wrong done, as far as money can do so, in a fair reasonable and equitable manner." "while determining quantum of compensation, in such cases, the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. That sympathy for the victim does not, and should not, comes in the way of making a correct assessment. But if a case is made out, and the court must not be chary of awarding adequate compensation. "18 SCCH-18 MVC 2085/2020
22. In connection with the injuries sustained by the petitioner, has produced wound certificate marked at Ex.P6. The said document discloses that, he sustained the following injuries:
1. Spleen laceration with Hemo peritonium
23. According to the doctor, said injury is grievous in nature. To substantiate the said fact, the petitioner has placed, discharge summary, 14 medical bills and 5 prescriptions as per Ex.P8, Ex.P.15 and Ex.P.16 respectively. In addition to the evidence of PW2, produced entire 2 case sheets with respect to further treatment, recent Xray and 5 old Xrays as per Ex.P17 and Ex.P.20. On going through the discharge summary of SSNMC hospital,Bengaluru marked as per Ex.P.8, the petitioner was admitted to the hospital as an inpatient on 31.5.2020 and discharged on 11.6.2020. Further, on going through the evidence of 19 SCCH-18 MVC 2085/2020 the PW2 goes to show that, the petitioner had sustained more than one injuries in the accident. But, in the wound certificate only one injury is forthcoming. For having taken note of the nature of the injury sustained by the petitioner and by keeping in mind about the sufferings of the petitioner and also the evidence given by the PW2 about the nature of injury sustained by the petitioner and mode of treatment given to him, I am of the view that, the petitioner is entitled for compensation of Rs.50,000/ towards pain and suffering.
24. Another point to be discussed herein, about the loss of income during laid up period and rest period, is concerned, In the petition, the petitioner has stated that, prior to the accident, he was doing business, Proprietor of M/s.Glory Chemicals & Solvants, Bengaluru and an income tax assessee, and used to earn Rs.3,25,250/ per annum. In this regard, the petitioner has placed 20 SCCH-18 MVC 2085/2020 Ex.P.11 to Ex.P.13 for consideration, As per Ex.P.11, income tax returns of the year 20182019 gross income of the petitioner has been assessed as Rs.5,86,614/. And as per income tax returns of 20192020, his gross income noted as Rs.3,26,004/. And total income rounded off under Section 288A was Rs.3,25,250/. Tax on total income rebate under Sec.87A was at Rs.3,763/. Tax after rebate along with Cess considered as Rs.1,314/. Alleged accident had taken place on 30.5.2020. As such, it is apt to take the income of the petitioner per annum as Rs.3,23,936/ and per month it works out to Rs.26,995/. Hence, it is apt to take the income of the petitioner as Rs.26,995/ per month.
25. On the other hand, it is to be noted that, the injury sustained by him is grievous in nature, as per the wound certificate. On going through the discharge summary of SSNMC hospital, Bengaluru marked as per Ex.P.8, the petitioner was admitted to 21 SCCH-18 MVC 2085/2020 the hospital as an inpatient on 31.5.2020 and discharged on 11.6.2020. Hence, definitely, there was some difficulty to him, during the period of treatment, to do daily routine work and to do his work for livelihood at least for one month. At the time of taking treatment, the petitioner could have felt difficulty, to do his work as he was earlier, due to his grevious injuries. Since, at the time of his treatment, one important organ spleen was removed. Hence, I am of the view that, he is entitled for compensation of Rs.26,995/ towards loss of income during the laid up period and rest period.
26. The petitioner herein, in connection with his treatment expenses, at the time of his evidence, placed 14 medical bills of Rs.5,00,606=50 along with 5 prescriptions as per Ex.P15 and Ex.P16. In connection with the said medical bills, except the suggestion that, the said documents are created 22 SCCH-18 MVC 2085/2020 documents, no contra materials placed, to disbelieve the said documents. On going through the nature of the injuries sustained by the petitioner, and mode of treatment taken by him, will not create suspicion to disbelieve the said documents. Hence, the petitioner is entitled for compensation of Rs.5,00,606=50/ under the head of medical expenses.
26. The petitioner herein, as per the medical records, had sustained grevious injury, as per the evidence of the PW2 and as per the recitals of the Ex.P.6. Apart from this, as per the evidence of the petitioner, he took treatment at SSNMC hospital, Bengaluru as per Ex.P.9 - discharge summary, the petitioner was admitted to the hospital as an inpatient on 31.5.2020 and discharged on 11.6.2020 i.e. for 12 days. As such, during the period of treatment, he could have spent some amount towards travelling, food and nourishment. Hence, the petitioner is entitled for compensation of 23 SCCH-18 MVC 2085/2020 Rs.15,000/ towards attendant charges, food, and nourishment and conveyance charges.
27. Another material point of loss of future income is concerned, the petitioner herein, asserting that, he had sustained permanent disability, consequent upon the injuries sustained by him. In the evidence of the PW1, reiterated the same thing forthcoming in the main petition. As already discussed above, wound certificate placed by him as per Ex.P6, goes to show that, he had sustained one grievous injury. To substantiate this, the petitioner had placed, wound certificate, and discharge summary, medical bills and prescription. But, on taking birds eye view towards said documents, disclose about gravity of the injuries sustained by the petitioner. Apart from this, placed the evidence of the doctor by name Dr.Rommel.S, who examined as PW2.
24 SCCH-18 MVC 2085/2020
28. In the evidence of PW2, deposed that, on the history of RTA, the petitioner had sustained, 1) Blunt injury abdomen with Grade IV splenic injury and Grade I pancreatic injury, 2) Hemoperitoneum, 3) Blunt injury chest with multiple fracture ribs on the left side and
4) Hemothorax. In this regard, he underwent procedure of exploratory laparotomy with splenectomy and he received 6 units of blood/PRBC. 2 units of FFP, IV fluids, antibiotic therapy, IV PPI, IV antiemetic, analgesics. Pancreatic injury, rib fractures and hemothorax were treated conservatively. He was in ICU for 5 days and was shifted to the ward where he was an IP till discharge, with advice to continue medications, to continue spirometry, not to lift heavy weights and to come for follow up. Subsequently he attended the OPD for follow up.
29. Further deposed that, during in hospital and follow up, he was vaccinated against pnumococcus, meningococcus and hemophilus 25 SCCH-18 MVC 2085/2020 infleunza infection because he underwent splenectomy. Patient complained of pain upper back and swelling in the upper abdomen in the mid line. On examination it was found that, no pallor / icterus / oedema / lymphadenopathy, midlone laprotomy scar over the abdomen, incision herinia present over the operative site, mid line and it is reducible, rest of the abdomen is soft and bilateral air entry is equal over the chest. Further, he deposed that, on recent examination of the petitioner on 4.11.2022, for assessment of disability as per guidelines of gazette notification, in view of his splendectomised status, he has risk of over whelming post splenectomy infection (OPSI) in the future and advised to review with the hospital immediately in case of fever / throat aches / chest pain / cough/ pain abdomen. Further deposed that, the petitioner requires further surgery for the incisional hernia present over the operated area and such surgery at Sparsh hospital, cost around Rs.1.5 to 2 lakhs.
26 SCCH-18 MVC 2085/2020
30. In support of the evidence of PW2, had relied on entire case sheet, case sheets of further treatment, recent xray and old xrays, as per Ex.P.17 to Ex.P.20., It is pertinent to note that, though the PW2 narrated in detail about the injuries sustained by the petitioner and also with respect to the mode of treatment given to him, not expressed his opinion about the percentage of whole body disability of the petitioner, consequent upon his accidental injuries. Subsequently, the petitioner has not made an effort to produce evidence in this regard for consideration.
31. At the time of crossexamination of PW2, answered that, he is the treated doctor of the petitioner. In connection with the injuries sustained by him, he undergone surgery. In the said surgery process, his spleen was removed. And the said surgery is open operation and in connection with the remaining injuries conservative treatment was given. 27 SCCH-18 MVC 2085/2020 In connection with the spleen answers given by the PW2, is necessary to reproduce herein:
" ಸಸಸಸನನ ಅರರದದರರ ರಸವನಕಕಕ ಪಪಮಮಖ ಅಅಗವದಗರಮವವದಲಲ ಎಅದರಕ ಸರಯಲಲ. ಸದಕಕ ಮಮಅದಮವರದಮ ಅರರದದರನ ಇಮಮಮನಟಗಕ ಸಅಬಅಧಸದಅತಕ ಅದಮ ಅರರದದರನಗಕ ಪಪಮಮಖವದಗದಕ ಎಅದಮ ನಮಡಯಮತದತರಕ."
32. On the other hand, in connection with the percentage of disability is concerned, to the questions put to the witness, he answered as follows:
"ನನನ ಮಮಖಮ ವಚದರಣದ ಪಪಮದಣ ಪತಪದಲಲ ಅಅಗನನಮನಮತಕಗಕ ಸಅಬಅಧಸದಅತಕ ಯದವವದಕಸ ಅಭಪದಪಯವನಮನ ವಮಕತಪಡಸರಮವವದಲಲ. ಆದರಕ ಅರರದದರರಗಕ ಸಅಬಅಧಸದ ಎಡಭದಗದ ಸಸಸಸನನನನಮನ ತಕಗಕದರಮವ ಕದರಣ ಸಕನಸಅಕಮ ಉದದವವದಗಮವ ಸದಧಮತಕಯದಕ. ಇದಕಕಕ ಸಅಬಅಧಸದಅತಕ ನಯಸರತ ಔಷಧಯನಮನ ನಸಡಲದಗರಮತತದಕ. ಒಅದಮ ವಕಸಳಕ ಸರ ಹಕನಸಗದದದರಕ ಅವರ ಮರಣವವ ಸಅಭವಸಬಹಮದಮ. ಈ ಅಭಪದಪಯವನಮನ ನದನಮ ನನನ ಇತರ ವಕವದಮಕಸಯ ದದಖಲಕಯಲಲ ನಮನದಮ ಮದಡಲಲ ಎಅದರಕ ಸರಯಲಲ."
33. In support of the above answers in para No.3 of his crossexamination with respect to spleen, he answered as follows:
28 SCCH-18 MVC 2085/2020
" ನನನ ಮಮಖಮ ವಚದರಣದ ಪಪಮದಣ ಪತಪದಲಲ ಅವರಗಕ ಆದ ಗದಯ ಮದರಣದಅತಕ ಎಅದಮ ನಮನದಮ ಮದಡಲಲ. ಆದರಕ ಆಪಪ (ಸಕನಸಅಕಮ) ಎಅದಮ ನಮನದಮ ಮದಡರಮತಕತಸನಕ. ಸಸಸಸನನ ಸಕನಸಅಕಗಕ ಸಅಬಅಧಸದಅತಕ ನಮಮಮ ವಕವದಮಕಸಯ ನಯಮದವಳಯಲಲ ಯದವವದಕಸ ಅಅಗನನಮನಮತಕ ಪಪಮದಣ ಉದದವವದಗಮವವದಲಲ. ಈ ಕದರಣ ನನನ ಪಪಮದಣ ಪತಪದಲಲ ನಮನದ ಮದಡರಮವವದಲಲ. "
34. Further, in his answers he stated that, in the chest portion of theಮ petitioner, on examination he found normal condition and fractures are united. And answered that, in connection with the future medical expenses, he has not produced estimation and with respect to hernia he has not suggested any medication. But, advised to undergo surgery.
35. Over all appreciation of the evidence of PW 2, it is crystal clear that, though the petitioner had sustained grievous injury as per his evidence and medical documents, he has not expressed his opinion in connection with the percentage of whole body disability of the petitioner, due to the accidental injuries sustained by him. As per the evidence of doctor and on going through the nature of injuries 29 SCCH-18 MVC 2085/2020 sustained by the petitioner after removal of spleen, more likely to contract serious or life threatening infections. The spleen is an organ that sits under rib cage on the upper left side of abdomen. It helps to fight infection and filters unneeded materials such as old or damaged blood cells from the body. In connection with deciding the percentage of disability, it is the duty of the tribunal, to first decide, whether there is any permanent disability, and if so, the extent of such permanent disability. And also to consider whether disablement is permanent or temporary. If the disablement is permanent, whether, it is permanent total disablement or permanent partial disablement, if the disablement percentage expressed, with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If there is no any permanent disability question of proceeding 30 SCCH-18 MVC 2085/2020 further and determining the loss of future earning capacity, does not arise at all. If there is permanent disability, then it will proceed to ascertain its extent. Actual extent of permanent disability of the claimant ha to be assessed based on the medial evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. In the case on hand, the petitioner in his petition noted that, he is doing business and at the age of 44 years, his spleen was removed. After removal of the spleen whether he suffered infections or not, no evidence is available on record. Further, no evidence available on record to show any adverse effect to the petitioner after removal of the spleen. But, presence hernia was discussed by the PW2.
36. Hence, on evaluation of nature of injury sustained by the petitioner, and on appreciation of the medical documents and the evidence of PW2, I am of the view that, due to the accidental injuries, 31 SCCH-18 MVC 2085/2020 one of the important and small vital organ was removed from the body of the petitioner. Hence, on going through his avocation and age criteria of the petitioner, it is necessary to discuss that, after the splenectomy, if the other organs of the body of the petitioner functions in a well manner, as previously performed by spleen, then no problem will cause to the petitioner to become active and feeling of fullness. But, as forthcoming in the crossexamination of PW 2, if there is any infections, definitely petitioner will suffer a lot in future, to do normal life as well as it will affect his earning capacity and also to do his business actively as he was earlier. Hence, it is apt to take the percentage of disability of whole body of the petitioner as 10% . The same will meet the ends of justice.
37. In connection with the age of the petitioner is concerned, on going through the cause title of the petition reveals that, as on the date of the petition, 32 SCCH-18 MVC 2085/2020 his age was 44 years. To prove the age, he had placed DL marked as per Ex.P.10. In the said document, date of birth of the petitioner has been mentioned as 20.07.1976. The accident was occurred on 30.5.2020. Therefore, as on the date of accident, the age of the petitioner is to be considered as 44 years. To the said age as per Sarla Verma case, multiplier '14' is to be taken into consideration.
38. Next factual aspect of the income of the petitioner is concerned, in the main petition, and also in the examinationinchief evidence, it is the assertion of the petitioner that, he was was doing business, Proprietor of M/s.Glory Chemicals & Solvants, Bengaluru and an income tax assessee, earning a sum of Rs.3,25,250/. In support of the same, the petitioner has produced Income tax returns documents as fully discussed above. As per income tax returns gross income for the year 20192020, 33 SCCH-18 MVC 2085/2020 noted as Rs.3,26,004/. And total income rounded off under Section 288A was Rs.3,25,250/. Tax on total income rebate under Sec.87A was at Rs.3,763/. Tax after rebate along with cess considered as Rs.1,314/. Alleged accident had taken place on 30.5.2020. As such, it is apt to take the income of the petitioner per annum as Rs.3,23,936/ per annum and it works out to Rs.26,995/ per month. Hence, it is apt to take the income of the petitioner as Rs.26,995/ per month.
39. In the light of my detailed discussions held above, no doubt injuries sustained by the petitioner definitely come in the way of his future, in a slight manner, to do his daily routine work, as well as to do his work for livelihood. Hence, the petitioner herein, is entitled for compensation under loss of future income as follows:
Rs.26,995X12X14 X 10/100 = Rs.4,53,516/ 34 SCCH-18 MVC 2085/2020
40. Next factual aspect of loss of amenities is concerned, on going through the medical documents and the evidence of PW2, it is crystal clear that, due to the accidental injuries, the petitioner had lost one among the important organ of his body through splenectomy. The spleen is an important organ which helps to fight infections and filters unneeded material in the body such as old or damaged blood cells from the blood. Hence, it is apt to grant compensation of Rs.50,000/ towards loss of amenities.
41. In connection with the future medication expenses is concerned, at the time of evidence of PW 2, deposed that, the petitioner requires further surgery for the incisional hernia present over the operated area and such surgery at Sparsh hospital, cost around Rs.1.5 to 2 lakhs. But, in connection with the definite expenses, no estimation is produced for consideration. In such a situation, by looking into 35 SCCH-18 MVC 2085/2020 the entire medical documents, and also on going through the answers given by the PW2 at the time of crossexamination, I am of the view that, the petitioner is entitled for Rs.40,000/ under the head of future medication.
42. In view of my due discussions held above, on various aspects, the petitioner is entitled for compensation in toto, under the following heads:
Compensation heads Compensation amount
1. Pain and Suffering Rs. 50,00000
2. Loss of income during Rs. 26,99500 laidup period and rest period
3. Medical expenses Rs. 5,00,60650
4.Attendant, Nourishment Rs. 15,00000 and Conveyance Charges
5. Loss of future income Rs. 4,53,51600
6. Loss of Amenities Rs. 50,00000
7.Future Medical expenses Rs. 40,00000 Total Rs.11,36,11750
43. Accordingly, the petitioner is entitled for compensation of Rs.11,36,117=50/, which is 36 SCCH-18 MVC 2085/2020 rounded off to Rs.11,36,118/ (Rupees Eleven Lakhs, Thirty Six Thousand, One Hundred and Eighteen only) along with interest @ 6% per annum, as per the proposition laid down by the Honourable High court of Karnataka in MFA No.103557/2016, Between Sri Ram General Insurance Company Limited V/S. Lakshmi And Others dated. 20.03.2018. And MFA No.30131/2019 dated.12.5.2020, from the date of the petition, till the realization of the award amount.
LIABILITY:
44. As regards the liability is concerned, it is the assertion of the petitioner that, due to the actionable negligence on the part of the driver of the Eicher Lorry bearing registration No.MH46BF 2671, alleged accident had taken place. As such, the respondent No.1, being the Insurance Company and the respondent No.2, being the owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
37 SCCH-18 MVC 2085/2020
45. On the other hand, the respondent No.1, being the Insurance Company, not disputed the existence of the insurance policy, as on the date of the accident, and not produced any documents or evidence to show that, there is a violation of the terms and conditions of the Insurance policy. As per the records, policy pertaining to the offending vehicle was valid from 13.7.2019 to 12.7.2020, alleged accident had taken place on 30.6.2020.
46. Accordingly, both the respondents are jointly and severally liable to pay compensation to the petitioner. However, the respondent No.1, being the indemnifier has to pay compensation to the petitioner along with the interest at 6% per annum from the date of the petition till its realization. Accordingly, I am answering the issue No.2 partly in the Affirmative.
38 SCCH-18 MVC 2085/2020
ISSUE NO.3:
47. In view of above discussion on issue Nos.1 & 2, I proceed to pass the following;
*O R D E R* The claim petition filed by the petitioner U/s 166 of M.V. Act is partly allowed with cost.
Consequently, the petitioner is entitled for compensation Rs.11,36,118/(Rupees Eleven Lakhs, Thirty Six Thousand, One Hundred and eighteen only) along with interest @ 6% per annum, from the date of the petition, till the realization of the award amount.
Expenses to be incurred for future medication shall not carry any interest. The respondent No.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy, the respondent No.1 is liable to pay the 39 SCCH-18 MVC 2085/2020 compensation with interest at 6% p.a. from the date of petition till its realization within two months from the date of this order.
After deposit of the compensation amount with interest, 40% is directed to be deposited in any nationalized/ Schedule bank in F.D for a period of 3 years. And remaining 60% shall be released to the petitioner through due process of law.
Advocate fee is fixed at Rs.500/.
Draw award accordingly.
(**Dictated to the stenographer through on line, corrected by me and then pronounced in open court on this the 11th day of January 2023**).
(V.NAGAMANI) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Sri. Umesh.K.L @ Umesh
PW2 Dr.Rommel.S
40 SCCH-18 MVC 2085/2020
List of documents exhibited on petitioner's side:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of Spot sketch
Ex.P5 True copy of IMV report
Ex.P6 True copy of Wound certificate
Ex.P7 True copy of Charge sheet
Ex.P8 Discharge summary
Ex.P9 DAMA summary
Ex.P10 Notarized copy of DL
Ex.P11 Income Tax Returns for the period
of 20182019 and 20192020
Ex.P12 Registration certificate
Ex.P13 GST certificate
Ex.P14 Notarized copy of PAN card
Ex.P15 14 Medical bills
Ex.P16 5 Prescriptions
Ex.P17 Entire case sheet
Ex.P18 2 Further treatment case sheets
Ex.P19 Recent Xray
Ex.P20 5 Old Xrays
List of witnesses examined on respondents' side:
NIL List of documents exhibited on respondents' side:
NIL III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.