Bangalore District Court
Lingaraj Alias Ningaiah vs B.M.T.C on 29 February, 2024
KABC020183062022
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.3212/2022
Dated: 29th February 2024
Petitioner Sri Lingaraj @ Ningaiah,
S/o Lingappa @ Lingaiah,
Aged about 50 years,
No.26/1, 17th Cross,
10th Main Road, Padarayanapura,
Bengaluru - 560 026.
(Sri S. Sanne Gowda, Advocate)
Vs.
Respondent The Manager,
BMTC, No.44/45,
Shanthi Nagar, Double Road,
Bengaluru - 560 027.
(RC Owner of the vehicle bearing
Reg. No.KA-57-F-1169)
(Sri M.N. Krishna, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989, seeking compensation of 2 (SCCH-16) MVC 3212/2022 Rs.15,00,000/- against the respondent for the injuries sustained by him due to the accident caused by the driver of the BMTC bearing No.KA-57-F-1169.
2. The facts in brief stated in the petition are as under;
On 19-05-2022, at about 8.00 to 8.10 a.m., the petitioner was riding his motorcycle bearing No.KA-41-EA- 0847 carefully and slowly along with his son towards JP Nagar from City Market. When he reached at Shivashankar Circle, near KIMS Hospital Junction, Bengaluru City, at that time, the driver of the BMTC bus bearing No.KA-57-F-1169 came in rash and negligent manner and dashed the motorcycle of the petitioner. Due to the accident, the petitioner fell down from the motorcycle and sustained grievous injuries to his right hand and other injuries to all over the body. Immediately after the accident, he was shifted to KIMS Hospital and took first aid in the said hospital. Thereafter, he was shifted to Chord Road Hospital and took treatment as inpatient from 20-05-2022 to 21-05-2022. After examination, it was found that the petitioner has 3 (SCCH-16) MVC 3212/2022 sustained injuries to his right hand and other injuries. The petitioner underwent surgery and has taken follow up treatments. He has spent Rs.50,000/- towards medical, conveyance charges. Prior, to accident, he was hale and healthy and earning Rs.25,000/- per month by working in the garment. The petitioner was only the earning member of his family. Due to the accident, he has suffered from loss of earnings and underwent mental agony. The accident was due to rash and negligent driving of the driver of the BMTC Bus bearing No.KA-57-F- 1169. The V.V. Puram Traffic Police have registered criminal case against the driver of the offending bus for the offences punishable under Section 279 and 337 of IPC. The respondent is the owner of vehicle bearing No.KA-57-F-1169. Hence, the respondent is liable to pay compensation to the petitioner. The petitioner has sought for compensation of Rs.15,00,000/- with interest. Hence, he has prayed to allow the petition.
3. In response to the notice, the respondent appeared through his counsel and filed the written statement.
4 (SCCH-16) MVC 3212/2022 The facts in brief stated in the written statement of the respondent are as follows;
The respondent has denied the allegations in the petition. He has denied that the accident was due to rash and negligent driving of the driver of the BMTC Bus bearing No.KA-57-F-1169. He has stated that the accident was due to rash and negligent riding of the petitioner at the accident. He has further stated that the petitioner rode the vehicle in high speed and dashed the front side of mudguard of the BMTC Bus. He has further stated that due to accident, the petitioner fell down and sustained injuries. He has not admitted the age, avocation and income of the petitioner. He has denied the injuries to the petitioner. He has stated that compensation sought by the petitioner is exorbitant. He has further stated that the accident was due to sole contributory negligence of the petitioner. He has denied the liability of the BMTC to pay the compensation to the petitioner. It has further stated that awarding 6% of interest is not permissible under law. Hence, he has prayed to dismiss the petition.
5 (SCCH-16) MVC 3212/2022
4. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that he sustained grievous injuries due to the road traffic accident alleged to have occurred on 19-05-2022 at about 8.00 to 8.10 a.m., due to the rash and negligent driving of the driver of the BMTC Bus, bearing registration No.KA-57-F-1169?
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
5. In order to prove his case, the petitioner himself got examined as PW1 and got marked documents as Ex.P1 to Ex.P15. He has also got examined Dr. B. Ramesh as PW2 and got marked documents as Ex.P16 and Ex.P17. The respondent has got examined his driver as RW1 and got marked documents as Ex.R1 to Ex.R6.
6. Heard arguments on both sides. Perused the pleadings and evidences, on the basis, findings on the issues are as under:
Issue No.1 : In the Affirmative 6 (SCCH-16) MVC 3212/2022 Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
7. The petitioner has stated that the accident was occurred due to rash and negligent driving of the driver of the bus bearing No.KA-57-F-1169. It is further stated by the petitioner that the driver of the said bus dashed his vehicle bearing No.KA-41-EA-0847. It is the further contention of the petitioner that he has sustained grievous injury due to the accident. It is further case of the petitioner that V.V. Puram Traffic Police have registered a criminal case against the driver of the bus for the offences punishable under Section 279 and 337 of IPC.
8. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
7 (SCCH-16) MVC 3212/2022
9. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
10. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
11. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
8 (SCCH-16) MVC 3212/2022
12. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
13. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
9 (SCCH-16) MVC 3212/2022
14. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
15. In order to prove his case, the petitioner has produced as many as 17 documents. They are marked as Ex.P1 to Ex.P17. Out of the said documents, Ex.P1 is the FIR with complaint, Ex.P2 is the spot mahazar, Ex.P3 is the sketch, Ex.P4 is the charge sheet, Ex.P5 is the IMV report, Ex.P6 is the wound certificate, Ex.P7 is the aadhar card, Ex.P8 is the discharge summary, Ex.P9 is the prescriptions, Ex.P10 is the payment receipts, Ex.P11 is the medical bills, Ex.P12 is the x-ray, Ex.P13 is the medical bills, Ex.P14 is the driving licence, Ex.P15 is the prescriptions, Ex.P16 is the OPD book and Ex.P17 is the x-ray. In Ex.P1, it is stated that the driver of the bus bearing No.KA-57-F-1169 has driven the said bus in rash and negligent manner and dashed the vehicle of the 10 (SCCH-16) MVC 3212/2022 petitioner bearing No.KA-41-EA-0847. It is further stated that due to the accident, the father of the complainant fell down and sustained injuries. The complainant is the son of the petitioner and he was riding the said two- wheeler vehicle at the time of accident. It is further stated that the petitioner fell down due to the accident and sustained grievous injuries. It is further stated that he was admitted to the hospital. In Ex.P2, the police have narrated the spot and in Ex.P3, they have shown the spot. As per Ex.P3, the bus came from the left side of the vehicle of the petitioner. It has dashed the vehicle of the petitioner at Shivashankar Circle. If the driver of the bus slowly and cautious driving his vehicle, then he could have observed the vehicle of the petitioner. It is pertinent to note that the bus has dashed the right side of the said two-wheeler. Ex.P5 shows the damages to the two-wheeler vehicle. In Ex.P6, the injuries to the petitioner are stated. The injuries stated in this document would tally with the manner of accident stated in the petition. As per Ex.P4, police have filed the charge sheet against the driver of 11 (SCCH-16) MVC 3212/2022 the bus bearing No.KA-57-F-1169. In Ex.P4, it is stated that the driver of the said bus was driving the bus in rash and negligent at the time of accident. It is further stated that due to the accident, the petitioner has sustained grievous injuries. Therefore, in all the documents produced by the petitioner, it is stated that the accident was due to rash and negligent driving of the driver of the bus. The respondent has produced the documents and they have got marked as Ex.R1 to Ex.R6. Out of the said documents, Ex.R1 and R2 are the trip sheet and log sheet, Ex.R3 and Ex.R4 are the statement given by the driver and conductor of the offending vehicle. As per these documents, they have intimated the accident to their authorities. In these documents, they have not stated that the accident was due to rash and negligent riding of the rider of the two- wheeler vehicle. They have admitted the accident and injuries to the petitioner. They have also admitted the damages to the vehicle of the petitioner. The driver of the respondent has not given any complaint against the rider of the two-wheeler vehicle. The respondent has not 12 (SCCH-16) MVC 3212/2022 explained why his officials have not given complaint to the police against the rider of the two-wheeler.
16. The petitioner has entered into the witness box and got examined as PW1. He has re-iterated the contents of the petition in his examination-in-chief. In the cross-examination, he has denied the suggestion that the accident was due to his negligence. The majority of the questions in the cross-examination are related to the injuries and the treatment of the petitioner. The doctor got examined as PW2. He has supported the case of the petitioner. The driver of the respondent vehicle got examined as RW1. In the examination-in-chief, he has denied the allegation of rash and negligent driving of the said bus. In the cross- examination, he has stated that the police have not received his complaint. Therefore, he has given complaint to his higher police authorities. But, he has not produced any document to show this fact. In Ex.R3 and Ex.R4, there is no whisper as to the alleged rash and negligent riding of the two-wheeler vehicle of the petitioner by its rider. Hence, the respondent has failed 13 (SCCH-16) MVC 3212/2022 to produce any contrary materials to the materials produced by the petitioner in this regard. From the documentary and oral evidence, the petitioner has proved that the accident was due to rash and negligent driving of the driver of the bus bearing No.KA-57-F-1169. He has further proved that due to the accident, he has sustained grievous injury. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
17. As discussed above, the petitioner has proved that the accident was caused due to rash and negligent driving of the driver of the BMTC Bus bearing No.KA-57-
F-1169. Therefore, petitioner is entitled to the compensation under various heads. The damages are to be assessed under two heads, they are pecuniary damages and non pecuniary damages. The pecuniary damages are those like medical, treatment, attendants, transport, actual loss of earning, future loss of earning. Non pecuniary damages includes mental and physical shock, loss of amenities, loss of expectation of life, loss of prospects of marriage. The petitioner who has 14 (SCCH-16) MVC 3212/2022 sustained injury is entitled for compensation under the following heads:
A) Towards loss of future income :
In order to determine the compensation towards loss of future income, the age, monthly income and disability of the petitioner is to be determined. The petitioner has produced his aadhar card - Ex.P7 in this case. As per Ex.P7 the date of birth of the petitioner is shown as 07-03-1972. The accident took place on 19-05- 2022. Therefore, the age of the petitioner as on the date of accident is 50 years.
B). The petitioner has sustained grievous injury in this case. The injuries to the petitioner are as follows:
Fracture lower end of radius right.
In this regard, the petitioner got examined Dr. B. Ramesh as PW2. PW2 in his examination-in-chief has stated about the injuries and fractures of petitioner. He has stated that after clinical and radiological examination, he found that the petitioner has disability of left lower limb as 30%. He has stated that the whole body physical disability of the petitioner is 10%. In the
15 (SCCH-16) MVC 3212/2022 cross-examination, he has denied the suggestion that the petitioner has no disability. Therefore, considering the injuries sustained and evidence of PW2, in this case, the disability of 7% can be considered to the whole body of the petitioner. Hence, in this case, the whole body disability of the petitioner is considered as 7%.
C). The petitioner has stated that he was working in garments and earning Rs.25,000/- per month. But, he has not produced any document to show his income and avocation. Therefore, notional income is to be considered as per the guidelines of the Karnataka State Legal Services Authority. The accident took place in 2022. Hence, the notional income of the petitioner is Rs.15,500/-. Therefore, the annual income of the petitioner is Rs.1,86,000/-.
D). As per the ratio laid down in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the appropriate multiplier for a person whose is aged about 50 years is
13. Therefore, loss of future income is Total annual 16 (SCCH-16) MVC 3212/2022 income X disability/100 X multiplier = Rs.1,86,000x7/100x13= Rs.1,69,260/-.
Medical expenses :
In this case the petitioner has sustained grievous injuries. As per Ex.P8, he has taken treatment as inpatient for 2 days. The petitioner has produced 15 medical bills at Ex.P11 and Ex.P13 which are amounting to Rs.38,100/-. Therefore, the petitioner is entitled for reimbursement of entire medical bill of Rs.38,100/-.
Pain and sufferings :
The petitioner has sustained grievous injuries in this case. Injuries have caused the disability to the petitioner. So considering the injuries and disability to the petitioner, an amount of Rs.50,000/- is to be awarded to the petitioner towards pain and sufferings.
Attendant charges :
As per Ex.P8 - discharge summary, the petitioner has admitted as inpatient for 2 days from 20-05-2022 to 21-05-2022. He needs attendant during that period. Therefore, 1000 x 2 i.e., Rs.2,000/- is awarded towards the attendant charges.
17 (SCCH-16) MVC 3212/2022 Food and nourishment :
The petitioner was admitted for 2 days as inpatient in Chord Road Hospital. Therefore, Rs.800/- per day i.e., Rs.1,600/- is awarded towards food and nourishment.
Conveyance expenses :
The petitioner is the resident of Padarayanapura, Bengaluru and he has taken treatment in Chord Road Hospital. Hence, Rs.5,000/- is the just compensation towards conveyance.
Loss of income during treatment period : The petitioner has taken treatment as inpatient for 2 days. Therefore, Rs.1,500/- is awarded towards loss of income during treatment period.
Loss of future amenities :
The PW2 has opined that the petitioner has sustained grievous injuries and there are complications to him. Therefore, awarding the compensation of Rs.10,000/- would be just and reasonable towards loss of amenities.
18. Hence, the petitioner is entitled to the compensation under different heads as follows :
18 (SCCH-16) MVC 3212/2022
1. Loss of future income 1,69,260-00
2. Medical expenses 38,100-00
3. Pain and sufferings 50,000-00
4. Attendant charges 2,000-00
5. Food and nourishment 1,600-00
6. Conveyance expenses 5,000-00
7. Loss of income during 1,500-00 treatment period
8. Loss of future amenities 10,000-00 Total 2,77,460-00
19. In all, petitioner is entitled for compensation of Rs.2,77,460/- with interest at the rate of 6% per annum from the date of petition till its realization. Liability:
20. The petitioner has proved that the accident is due to rash and negligent driving of the driver of the KSRTC Bus bearing No.KA-57-F-1169. The respondent has stated that the deceased was negligent at the time of accident. This fact is not proved by respondent by any independent, cogent and reliable evidence. The investigation papers and the documents would show that the accident is due to rash and negligent driving of the driver of the bus. Therefore, the respondent is liable to pay the entire compensation amount with interest at 19 (SCCH-16) MVC 3212/2022 the rate of 6% per annum from the date of petition till its realization.
21. The petitioner has proved that the accident was due to rash and negligent driving of the driver of the offending vehicle. He has further shown that he is entitled to total compensation of Rs.2,77,460/-. He has further shown that the respondent is liable to pay compensation to him. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
22. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.2,77,460/- (Rupees two lakhs, seventy seven thousand, four hundred and sixty only) with interest at the rate of 6% p.a., from the date of petition till realization.
The respondent is directed to pay the compensation amount to the petitioner 20 (SCCH-16) MVC 3212/2022 within two months from the date of this order.
Out of the compensation amount awarded to petitioner, 30% of the compensation amount with proportionate interest shall be deposited in his name as FD in any nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 70% amount with proportionate interest shall be released to him through E-
payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 29th day of February 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Sri Lingaraj @ Ningaiah PW2 Dr. B. Ramesh
Documents marked on behalf of petitioner:
Ex.P1 True copy of FIR with Complaint 21 (SCCH-16) MVC 3212/2022 Ex.P2 True copy of Spot Mahazar Ex.P3 True copy of Sketch Ex.P4 True copy of Charge Sheet Ex.P5 True copy of IMV Report Ex.P6 True copy of Wound Certificate Ex.P7 Notarized copy of Aadhar Card Ex.P8 Discharge Summary Ex.P9 Prescriptions (5 in nos.) Ex.P10 Payment Receipts (3 in nos.) Ex.P11 Medical Bills (5 in nos.) Ex.P12 X-ray Ex.P13 Medical Bills (10 in nos.) Ex.P14 Notarized copy of Driving Licence Ex.P15 Prescriptions (3 in nos.) Ex.P16 OPD Book Ex.P17 X-ray Witnesses examined on behalf of respondent:
RW1 Sri Raghavendra V. Documents marked on behalf of the respondent:
Ex.R1 Copy of Trip Sheet
Ex.R2 Copy of Log Sheet
Ex.R3 Copy of Statement of Driver
Ex.R4 Copy of Statement of Conductor
Ex.R5 Notarized copy of ID Card
Ex.R6 Notarized copy of Driving Licence
(Ganapati Bhat)
Member, MACT, Bengaluru.