Bangalore District Court
Chethan B.C vs Hanumantharaju.B on 1 October, 2024
KABC020158232020
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH-_25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII ADDITIONAL SMALL CAUSES JUDGE, BENGALURU.
DATED THIS THE 1st DAY OF OCTOBER 2024
MVC No.3681/2020
PETITIONER: Sri. Chethan B.C.
S/o Chandrappa,
Aged about 22 years,
R/at No.85 8th Cross,
Girish Karnad Road,
Adakimaranahalli, Makali,
Bangalore North.
(Since the petitioner is in inadequate
memory hence reptd. by his father &
natural guardian Sri. Chandrappa)
(By Sri.B.S.Manjunath,
Advocate/s.)
V/S
RESPONDENTS: 1. Sri. Hanumantharaju B.
S/o Bylappa,
Bylappa House, Nagarur,
Dasanapura Hobli,
Bangalore North.
(RC Owner of LGV/Water Tank
Reg.No.KA-06-C-1899)
(Ex-parte)
SCCH - 25 2 MVC 3681/2020
2.MAGMA HDI Gen. Ins.
Co. Ltd.,
No.36, II Floor,
Minerva Circle,
J.C.Road,
Bangalore - 560 027.
(IP No.P0220300022/4193/100717
Valid FROM 27.03.2020 TO 26.03.2021)
(By Sri. Raghavendra Bhat,
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 traffic accident dated 28.05.2020.
2. The case of the Petitioner in brief is that, On 28.05.2020 at about 06.30pm, the petitioner was riding motorcycle bearing Reg.No.KA-52-K-587 from Bangalore city towards Dasanapura on NH-48 i.e., service Road of Bangalore Tumkur Road slowly and cautiously, while taking turn at Dasanapura underpass, a LGV/Water Tank bearing Reg.No.KA-06-C-1899 came with high speed, in a reckless, rash and negligent manner, endangering human life and SCCH - 25 3 MVC 3681/2020 dashed against the petitioner and caused the accident. Due to impact he has sustained grievous injuries to the head and face.
3. It is the further case of the petitioner that, after the accident the petitioner was taken to Swasthya Hospital, Nelamangala wherein admitted and initial treatment given, then shifted to Abhaya Vasista Hospital, Madanayakanahalli wherein admitted and necessary investigations were done and treated conservatively. Thereafter the petitioner was shifted to Sapthagiri Hospital on 01.06.2020 wherein admitted, trachestomy was done head injury was treated, then discharged on 22.06.2020. Thereafter the petitioner was shifted to Premier Sanjeevini Hospital, wherein he was admitted on 28.06.2020 kept under observation and treated conservatively, discharged on 18.07.2020 with advice for followup treatment and bed rest. Due to the injuries, the petitioner has spent huge amount towards medical, conveyance, nourishment, food, transport and other charges. SCCH - 25 4 MVC 3681/2020
4. It is the further case of the petitioner that, Prior to the date of accident he was hale and healthy, working as 'Picker and Packer' at Alexi Global Pvt. Ltd., Adakimaranahalli, Bangalore and earning Rs.14,000/- per month. Due to accidental injuries and disability he is facing mental shock, agony, discomfort and financial loss and lost his job. The Nelamangala Traffic Police have registered a case against the driver of the LGV/Water Tank bearing No.KA-06-C-1899 in their Cr.No.175/2020, p/u/Sec.279, 338 of IPC. The 1 st respondent being the RC owner and 2nd respondent being the insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
5. In response to notice issued by this Tribunal, the 2nd Respondent appeared and filed written statement. In spite of due service of summons, the 1st respondent did not appear hence, placed ex-parte.
6. The objections of the Respondent No.2.
SCCH - 25 5 MVC 3681/2020It has denied all the petition averments and also denies the issuance of insurance policy in respect of the vehicle bearing No.KA-06-C-1899. The driver of the said Water Tanker did not have a valid and effective DL and the vehicle also did not have a valid Permit and FC as on the date of accident. There is a non-compliance of Sec.158(6) and 134(C) of MV Act. It has denied the involvement of the vehicle in the accident. The accident is solely due to the negligence of the petitioner himself. It also denied age, occupation and the manner of accident. It contended that the compensation claimed by the petitioner is excessive, arbitrary and disproportionate. Therefore, prayed for dismissal of the petition against it.
7. On the above rival contentions of the parties, this court has framed the following issues:-
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent driving by the driver of LGV/Water Tanker bearing Reg.No.KA-06-C-1899 and in the said accident petitioner sustained injuries? SCCH - 25 6 MVC 3681/2020
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
8. The Petitioner in order to prove his case, has got examined Mr. Srinivasa - Medical Record Keeper at Premier Sanjeevini Hospital, Bangalore and got marked Exs.P.1 & 2. Mr.D.Srinivasaiah - Medical Record Technician at Sapthagiri Hospital, Hesaraghatta Road, Bangalore got examined as PW.2 and got marked Exs.P.3 to P.5. Mr. Manjunath S. - Administrator at Abhaya Vasista Hospital got examined as PW.3 and got marked Exs.P.6 & 7. Dr.Banu Prakash A.S. - Consultant Neuro Surgeon - at Shreyas Clinic and at Kshema Specialists Clinic got examined as PW.4 and got marked Exs.P.8 & 9. Mr.Chandrappa father and natural guardian of the petitioner got examined as PW.5 and got marked Exs.P.10 to 30. On the other side, the Respondent No.2 got examined Mr.Pradeep K.S. - Asst. Legal Manager as RW.1 and got marked Exs.R.1 to R.4. The respondent No.2 got examined SCCH - 25 7 MVC 3681/2020 Mr. Kirankumar S. - Independent Investigator as RW.2 and got marked Exs.R.4 & 5.
9. Heard the arguments and perused the materials on record.
The counsel for the petitioner has relied upon the following decisions:
(i) 2023 ACJ 1969 : Dhanabalan Vs. United India Ins. Co. Ltd.,
(ii) 2023 ACJ 1653 : Kandasami and Ors. Vs. Linda Briyal and Anr.
(iii) 2023 ACJ 2054: National Ins. Co. Ltd., Vs. Alwin Lobo And Anr.
(iv) 2023 ACJ 490 : Manjunath Vs. Sunil and Anr.
10. 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: In the affirmative,
Issue No.3: As per the final order,
for the following:-
REASONS
11. Issue No.1:-
In order to prove that the accident occurred due to the SCCH - 25 8 MVC 3681/2020 actionable negligence on the part of the driver of the LGV/Water Tanker bearing Reg.No.KA-06-C-1899, the petitioner has examined his father/natural guardian as PW.5 and got marked 7 documents as per Exs.P.10 to P.16. He has reiterated the contents of the petition in his affidavit filed in lieu of his chief examination. The Respondent No.2 insurer has contended that the offending vehicle did not have a valid DL, Permit, FC as on the date of accident. It has denied the manner of the accident. In the cross-examination of PW.5, he has stated that the the accident occurred on Bangalore - Nelamangala NH-48. He has admitted that at the time of accident his son (petitioner) was taking turn from NH-48 towards Nelamangala Road. As per Ex.P.14 there was damages to the front portion of the petitioner's bike and there was no damages to the Water Tank. There was a two way road at underpass. In support of their case the petitioner has got examined MROs at Premier Sanjeevini hospital, Sapthagiri Hospital and Administrator at Abhaya Vasista Hospital as Pws.1 to 3 respectively and got marked Exs.P.1 to 7 - SCCH - 25 9 MVC 3681/2020 authorization letter, case sheet, Authorization letter, OPD Book, Case sheet, Authorization letter and inpatient case sheet respectively. During the cross examination of Pws.1 to 3, nothing worthwhile is elicited.
12. On the other hand, the Respondent No.2 got examined Asst. Legal Manager and Independent Investigator of their company as Rws.1 & 2 respectively and got marked Exs.R.1 to R.6, Authorization letter, insurance policy, MLC Register, one CD alongwith Certificate u/Sec.65B of Indian Evidence Act., Authorization letter and copy of appointment letter respectively. During the cross examination of RW.1, he has admitted that Videos can be edited in mobile phone. He has also admitted that the charge sheet filed against the Water Tanker. During the cross of RW.2, he has stated that he does not have any licence to investigate. He has also admitted that Videos can be edited.
13. On perusal FIR at Ex.P.10, the accident occurred on 28.05.2020 and the FIR was registered on the same day on SCCH - 25 10 MVC 3681/2020 the complaint of petitioner's father Mr.Chandrappa as per Ex.P.11. Ex.P.12 spot mahazar shows the spot of the accident in detail. Ex.P.13 seizure mahazar shows that the mahazar was conducted on 02.06.2020 from 11.00 to 11.30am and the offending Water Tank was seized for investigation and later got released the vehicle after obtaining Indemnity Bond from the RC owner. Ex.P.14 IMV report shows the damages and number of vehicles involved in the accident and further shows that there is no damages to the Water Tanker bearing No.KA- 06-C-1899 and the petitioner's vehicle bearing No.KA-52-K- 0587 damaged to its head light assembly, crash guard right side, fuel tank right side pressed inwards, left side rear view mirror and rear tail lamp. Ex.P.15 wound certificate shows that the petitioner suffered grievous injuries in an RTA on 28.05.2020 around 6.45pm. Ex.P.16/Charge sheet, the IO after thorough investigation filed charge sheet against the driver of the Water Tanker. The respondent No.2 has neither produced documentary evidence or oral evidence to show non- involvement of their vehicle. Therefore, the petitioner has SCCH - 25 11 MVC 3681/2020 proved that the accident occurred on 28.05.2020 at about 6.30pm, due to the negligence of the driver of the Water Tanker bearing Reg.No.KA-06-C-1899 and the petitioner suffered grievous injuries in the said accident. Accordingly, issue No.1 is held in the affirmative.
14. Issue No.2:-
In order to prove the injuries and disability suffered by the petitioner, the petitioner has produced the wound certificate as per Ex.P.15. As per Ex.P.15, the Petitioner has sustained (i) Multiple Acute intra Axial Hamorrhage in right frontal and temporal lobe, (ii) Acute SDH in left lobe and SAH in right lobe and (iii) Diffuse Cerrebral Edema which are grievous in nature.
15. In this regard PW.5 got examined Dr.Banu Prakash A.S. - 'Consultant Neuro Surgeon at Shreyas Clnic and at Kshema Specialists Clinic', Bangalore as PW.4. He has deposed the details of treatment and surgery undergone by the petitioner and as per CT brain shows : Bilateral Temporal SCCH - 25 12 MVC 3681/2020 lobes, right frontal lobe hemorrhagic contusion, Epidural memotoma over left parietal lobe, Acute SDH in left temporal lobe and SAH in right lobe, Diffuse Cerebral Edema and non displaced fracture left parietal and temporal bones. Further PW.4 has stated that the combined neurobehavioral and cognitive disabilities are at 19.16% and neurological disability at 51% and total permanent disability for Neuro disability is 59.49%. PW.4 produced 2 documents as per Exs.P.8 & 9 - Recent OPD slip and Neurobehaviour and Cognitive Assessment of the petitioner respectively.
16. During the cross examination of PW.4 stated that, he is a Neuro Surgeon. He is not a specialist in Psychology and Psychiatric. He has only assessed the disability of the petitioner. Before assessing the disability, PW.4 has consulted Dr.Naveen of Sapthagiri Hospital over phone who treated the petitioner. The petitioner had not undergone any surgery to the head injury. As per the say of the petitioner and on going through the discharge summary it is seen that petitioner SCCH - 25 13 MVC 3681/2020 underwent for treatment for head injury in three hospitals. Further admitted that at the time of examination of the Petitioner the breathing tube was removed and GCS Score of the petitioner was normal i.e., 15/15. Further admitted that Ex.P.9 is assessed based on NIMHANS Neuropsychological battery 2004 (head injury). He has admitted that at Ex.P.9 at page 2 the patient has mentioned before Dr.Prathibha Sharan as "now patient has no major problem, has some pain in the right eyebrow". He has admitted that Dr.Prathibha Sharan has assessed cognitive disability and neurobehaviour assessment of the petitioner.
Disability:
17. The counsel for the petitioner has relied upon the following decisions:
(i) 2023 ACJ 1969 : Dhanabalan Vs. United India Ins. Co. Ltd., Wherein the Hon'ble Supreme Court of India has made observations about the multiplier and the quantum of compensation based on facts.
(ii) 2023 ACJ 2054: National Ins. Co. Ltd., Vs. Alwin Lobo And Anr.
Wherein the Hon'ble High Court of Karnataka, on facts has held that in case of head injury, the court has to take actual disability given by the Doctor.
SCCH - 25 14 MVC 3681/2020
(iii) 2023 ACJ 490 : Manjunath Vs. Sunil and Anr. Wherein the HOn'ble High Court of Karnataka has fixed the functional disability at 100% where a person has suffered decreased memory, dullness and swaying while walking and unable to do any work.
On perusal of the evidence of PW.4 it is clear that he has assessed the physical disability of the petitioner. The injuries suffered by the petitioner have affected his cognitive ability.
18. The petitioner has averred that, at the time of accident he was working as 'Picker and Packer' at Alexis Global Pvt. Ltd., and earning Rs.14,000/- per month. However, the total disability of the whole body at 59.49% estimated by PW.4 cannot be accepted as it appears to be on a higher side. As per the data sheet at Ex.P.9,the petitioner does not have any disability in self care, inter personal activities, communication and understanding and there is 1 point disability and it comes in employment since he has not yet started working. However, he has told that he can work and he wants to work. In Ex.P.8, PW.4 has written that the petitioner has increased laughter, decreased memory, hates kids etc., SCCH - 25 15 MVC 3681/2020 However, these behavioral changes are not noted by the Neurophychologist in Ex.P.9. In order to prove that the petitioner does not have any memory loss, RW.1 has produced the CD which was recorded by RW.2. However, it is to be noted that as per Ex.P.9 also there is no problem with communication in the petitioner. The expert evidence of PW.4 and the observations of Dr.Prathibha Sharan are valuable when compared to the CD produced by the RWs.1 & 2. Therefore, relying on the decisions cited above and the observations of the Neuropsychologist, this court deems it fit to fix the functional disability at 20%.
Monthly income:
19. The counsel for the petitioner has reliedupon the decision:
2023 ACJ 1653 : Kandasami and Ors. Vs. Linda Briyal and Anr. Wherein the Hon'ble Supreme Court of India has fixed the income of a B.Tec Graduate at Rs.25,000/- per month. But the Petitioner has deposed in his evidence that, he was working as 'Picker and Packer' at Alexis Global Pvt. Ltd., SCCH - 25 16 MVC 3681/2020 and earning Rs.14,000/- per month. There is no evidence to show that he was an Engineering Graduate. However, he has not examined any witness nor produced any documents in support of it. The accident occurred in the year 2020. Therefore, this court deems it fit to fix the notional income of the petitioner at Rs.14,500/- per month.
20. At the time of accident the Petitioner was aged about 22 years as could be made out from Exs.P.18, 19 & 20, /Notarized copy of Aadhar Card, DL and SSLC marks Card. He was hale and healthy before the accident. Keeping all the above things in mind, Petitioner is entitled to the following compensation:-
i) PAIN AND SUFFERING:-
After the accident, the Petitioner was treated at Swasthya Hospital, Abhaya Vasista Hospital and Sapthagiri Hospital as an inpatient from 29.05.2020 to 01.06.2020, 01.06.2020 to 22.06.2020 and 28.06.2020 to 18.07.2020 and discharged with advice to take follow up treatment. In this regard, he has SCCH - 25 17 MVC 3681/2020 produced Exs.P.21 to 23 Discharge summary issued by the above said Hospitals. Considering that the nature of injuries he has undergone is grievous, the Petitioner is awarded a sum of Rs.1,00,000/- under this head.
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent huge amount towards hospitalization, medical expenses, extra nourishment, conveyance and other miscellaneous expenses etc., In this regard, he has produced 96 medical bills as per Ex.P.25 for a sum of Rs.1,65,211/-. There is no contrary evidence to these bills from the respondents. Therefore, the petitioner is entitled to the said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD:-
As mentioned above the petitioner has sustained grievous injuries. The petitioner has taken treatment in the above said hospitals which can be made out from Exs.P.15, 21 to 23 wound certificate and Discharge summary. Therefore, considering the nature of injuries and duration of treatment it SCCH - 25 18 MVC 3681/2020 can be said that the Petitioner may have required at least Two months time for recovering from the injuries sustained by him. Hence, he is entitled only for a sum of Rs.29,000/- under this head.
iv) LOSS OF FUTURE INCOME:-
On perusal of Exs.P.18,19 & 20 as on the date of accident he was 22 years old. As per the dictum laid down in Sarala Verma's case the appropriate multiplier applicable for his age is 18. Therefore, the Petitioner is entitled for a sum of Rs.6,26,400/- (Rs.14,500/- x 12 x 18 x 20%= Rs.6,26,400/-) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:-
The Petitioner was aged about 22 years at the time of accident. He has sustained grievous injuries and as per consideration of this Tribunal, he is suffering from 20% functional disability. The Petitioner has to suffer this disability throughout his life. Because of this he will have to lose some of the amenities and comforts. Therefore, considering the age SCCH - 25 19 MVC 3681/2020 and nature of injuries that the Petitioner has suffered, a sum of Rs.20,000/- is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the above said hospital, admitted as an inpatient and discharged with advise. However, during this period he must have spent considerable amount on his food and nourishment, conveyance and attendant expenses. In this regard he has produced one Ambulance service bill for Rs.6,000/-. Therefore, the Petitioner is entitled for a sum of Rs.20,000/- under this head.
21. The Petitioner is entitled to compensation under the following heads:
1. Pain & suffering Rs.1,00,000/-
2. Medical expenses Rs.1,65,211/-
3. Loss of income during laid up Rs.29,000/- period
4. Loss of future income Rs.6,26,400/- SCCH - 25 20 MVC 3681/2020
5. Loss of future amenities and Rs.20,000/- happiness
6. Attendant, conveyance, food and Rs.20,000/-
nourishment charges TOTAL Rs.9,60,611/-
If it is rounded off it comes around Rs.9,60,700/- and same is awarded under different heads to the Petitioner.
LIABILITY
22. The respondent No.2 has contended that the Water Tanker did not have permit and FC and its driver did not have a valid DL. However it has failed to prove its defence. Therefore, the respondent Nos.1 & 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. However, the insurance company i.e., Respondent No.2 is directed to indemnify the respondent No.1 since the policy was in existence as on the date of accident. The petitioner has claimed for a sum of Rs.25,00,000/- but he is entitled only for a sum of Rs.9,60,700/- with interest @6% per annum SCCH - 25 21 MVC 3681/2020 from the date of petition till its realization. Therefore, the petition needs to allowed. Accordingly, issue No.2 held in the Affirmative.
23. Issue No.3:
For the reasons and discussions made above and finding to the above issues this court proceed to pass the following:-
ORDER The petition is allowed with cost. The Petitioner is entitled for compensation of Rs.9,60,700/- (Rupees Nine Lakhs Sixty Thousand and Seven Hundred only) along with interest @ 6% p.a. from the date of petition till the date of depositing the amount. The respondent Nos.1 & 2 are jointly and severally liable to pay compensation to the petitioner.
However, the Respondent No.2/Insurer is directed to deposit the compensation amount SCCH - 25 22 MVC 3681/2020 with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, 25% amount shall be deposited in any Bank of their choice and remaining amount shall be released in favour of the Petitioner by way of e- payment 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 1st Day of October 2024).
(PRAKRITI KALYANPUR) XXIII ASCJ, MEMBER MACT, Bangalore.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Sri. Srinivasa
PW.2 Sri. D. Srinivasaiah
PW.3 Sri. Manjunath S.
PW.4 Dr.Banu Prakash A.S.
PW.5 Sri. Chandrappa
SCCH - 25 23 MVC 3681/2020
List of Documents marked for Petitioner:
Ex.P.1 Authorization letter
Ex.P.2 Case sheet
Ex.P.3 Authorization letter
Ex.P.4 OPD Book
Ex.P.5 Case sheet
Ex.P.6 Authorization letter
Ex.P.7 Inpatient case sheet
Ex.P.8 Recent OPD Slip
Ex.P.9 Neurobehavious and Congnitive Assessment
Ex.P.10 Cerfied copy of FIR
Ex.P.11 Cerfied copy of FIS
Ex.P.12 Cerfied copy of spot mahazar
Ex.P.13 Cerfied copy of Seizure Mahazar
Ex.P.14 Cerfied copy of MVA report
Ex.P.15 Cerfied copy of Wound Certificate
Ex.P.16 Cerfied copy of charge sheet
Ex.P.17 Cerfied copy of ordersheet in CC 4965/2020
(one page)
Ex.P.18 Notarized copies of Aahdar Cards of petitioner
and guardian
Ex.P.19 Notarized copy of DL of petitioner
Ex.P.20 Notarized copy of SSLC Marks Card of
petitioner
Ex.P.21 Discharge summary issued by Abhaya
vasishta Hospital (One page)
SCCH - 25 24 MVC 3681/2020
Ex.P.22 Discharge summary issued by Sapthagiri
Hospital (One page)
Ex.P.23 Discharge summary issued by premier
Sanjivani Hospital (One page)
Ex.P.24 Ten Lab reports
Ex.P.25 98 Medical bills for Rs.1,65,211/-
Ex.P.26 Seven Advanced Receipts
Ex.P.27 38 Medical prescriptions
Ex.P.28 One Ambulance service bill for Rs.6,000/-
Ex.P.29 Three X-ray Films
Ex.P.30 Four CT-Scan films
List of Witnesses examined for Respondent/s:
RW.1 Sri. Pradeep K.S. RW.2 Sri. Kirankumar S.
List of documents exhibited for Respondent:
Ex.R.1 Authorization letter Ex.R.2 Copy of Insurance policy Ex.R.3 True copy of MLC register Ex.R.4 One CD alongwith certificate u/Sec.65B of Indian Evidence Act. Ex.R.4 Authorization letter Ex.R.5 Copy of appointment letter (PRAKRITI KALYANPUR) XXIII ASCJ, MEMBER MACT Bengaluru. Digitally signed by PRAKRITI PRAKRITI KALYANPUR KALYANPUR Date: 2024.10.08 12:32:35 +0530