Bangalore District Court
Nithin Kumar R vs Ramachandraiah on 5 January, 2024
KABC010199092019
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
DATED THIS THE 5th DAY OF JANUARY 2024
PRESENT: Sri. D.P. Kumara Swamy, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO.4524/2019
PLAINTIFF Sri. Nithin Kumar R
S/o Raju
Aged about 21 years
Residing at No. 25
Sathyanarayana Road
Near Swayam Prabha Kalyanamantapa
Kamakshipalya
Bengaluru -560 079.
[By Sri. P.S. Nethresha R. Rajith,
Advocate]
/Vs/
DEFENDANTS 1. Sri. Ramachandraiah
S/o Chikkahanumaiah
Aged about 42 years
Proprietor
Sri. Vishnupriya Kalyana Mantapa
Chandana Layout
Kamakshipalya-560 079.
2
OS.No.4524/2019
And also residing at
No. 41/1D, 1st Main Road
Health Layout
Hanumanthanagar
Bengaluru -560 091.
2. Sri. P.V. Krishna Bhat
S/o Gopala Krishna Bhat
Aged about 52 years
Manager
Sri. Vishnupriya Kalyana Mantapa
Chandana Layout
Kamakshipalya-560 079.
And also at
Residing at No. 3
Near KCS Society
Bhuvaneshwarinagar, 2nd stage
Gnanabharathi
Bengaluru -560 059.
3. Iffco Tokio General Insurance Co.,Ltd
No.8, third party application floor,
KSCMF Building
Next to Hotel Chandrika
Cunningham Road
Bengaluru -560 025.
[D1 & D.2 : Sri. Srinivasa Gowda, Advocate]
[D-3 : Sri.Gururaj Salur, Advcoate]
Date of Institution of the suit : 25.06.2019
Nature of the Suit : For compensation
Date of commencement of recording
of evidence : 25.08.2021
3
OS.No.4524/2019
Date on which the Judgment was
pronounced : 05-01-2024
Year/s Month/s Day/s
Total Duration : 04 06 10
(D.P. KUMARA SWAMY)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for compensation.
2. The pleaded facts of the case of the plaintif may be stated to the following efect :-
2.1 On 22.01.2018, the plaintif had gone to Vishnu Priya Kalyana Mantapa, Chandana Layout, Kamakshi Palya, Bengaluru, to unload groceries etc., for the marriage of a sister of friend of plaintif.
The friend of the plaintif one Sri.Shreyas had requested for help to transport the groceries required for performance of his sister's marriage. 4
OS.No.4524/2019 The name of sister of said Sri. Shreyas is Smt. Divyashri. The marriage of said Smt. Divyashri was fixed on 23,01.2018 and 24.01.2018 at Vishnu Priya Kalyana Mantapa.
2.2 The plaintif and his friend Sri. Shreyas were going from ground floor to 2nd floor in a lift in Vishnu Priya Kalyana Mantapa by carrying ration bags. While so going in the lift, the rope of the lift was cut and the plaintif and his friend fell down. As a result, the plaintif has sufered the following injuries. The plaintif has sufered bilateral pain in both ankle, feet and heel, difficulty in walking and swelling of both ankles, feet and heel. Evaluated out CT showed bilateral calcaneum fracture. The plaintif was treated for bilateral calcaneum fracture. On 22.01.2018, the plaintif was admitted to Ashraya Medinova Pvt., Ltd., for first-aid treatment. Not satisfied with the treatment given by the Doctors, the parents of the plaintif shifted the plaintif to Jai 5 OS.No.4524/2019 Maruthi Hospital, Hegganahalli Cross on 22.01.2018 and from 22.01.2018 to 27.01.2018 the plaintif was treated as inpatient at Jai Maruthi Hospital.
2.3 On 27.01.2018, the plaintif was shifted to Fortis Hospital, Cunningham Road, Bengaluru. In said hospital, both the ankles of the plaintif were operated. The plaintif was discharged from Fortis Hospital on 01.02.2018. The plaintif was advised to take complete bed rest. POP casting was done. The plaintif has continued to take regular check- up. For follow-up treatment, medicines, laboratory investigations, Conveyance, nourishment and other incidental charges, the plaintif has spent huge amount of money.
2.4 The plaintif is having lot of discomfort due to the fracture he sufered in said accident. The plaintif is not able to concentrate on his studies. 6
OS.No.4524/2019 The plaintif is still under-going treatment. The plaintif has sufered permanent partial disability due to the injuries sufered in the accident. 2.5 The plaintif is a Cricket player. Due to the injuries sufered in the accident, the plaintif is not able to participate in the Cricket game. The plaintif is not able to participate in other outdoor games. The plaintif is not able to drive the vehicles due to the injuries sufered in the accident. The plaintif is not able to walk properly throughout his life. 2.6 The plaintif is sufering from mental agony and hardship. Under the various heads of general injuries, mental agony including disturbance in his future life, reduction in income in future, permanent partial disablement, loss of amenities and nourishment etc., the plaintif has claimed a sum of Rs. 50,00,000/-.
7
OS.No.4524/2019 2.7 The defendants No. 1 and 2 have not taken proper precautionary measures and personal measures to see that lift is in good condition. The mother of the plaintif has given complaint against defendants No. 1 and 2 before Kamakshipalya police station for an ofence punishable under Section 338 of IPC. Said police have registered a case in Crime No. 0052/2018 on its file. 2.8 The defendants No. 1 and 2 have pleaded guilty before the 5th Addl. Chief Metropolitan Magistrate Court, Bengaluru in C.C. No.25176/2018 and on such plead guilty of the defendants No. 1 and 2, said Court has convicted the defendants No. 1 and 2 and sentenced them to pay fine. 2.9 The defendants No. 1 and 2 have insured said Kalyana Mantap with the defendant No. 3 IFFCI- TOKIO General Insurance Company. Said insurance is valid from 09.11.2017 to 08.11.2018. The 8 OS.No.4524/2019 incident has occurred on 22.01.2018. The defendants No. 1 and 2 have failed to pay compensation to the plaintif.
2.10 The cause of action for the suit arose within the jurisdiction of this Court. The plaintif is a permanent resident of Bengaluru city. 2.11 The above are the facts constituting the cause of action for the suit. Hence, this suit.
3. The pleaded facts of the case of the defendants No. 1 and 2 may be stated to the following efect.
3.1 The defendant No. 1 has filed written statement and a memo is filed on behalf of the defendant No. 2 to the efect that the defendant No. 2 adopts the written statement of defendant No. 1. The plaintif has sought for compensation to a tune 9 OS.No.4524/2019 of Rs.50,00,000/-. But the plaintif has not paid proper Court fee on said sum.
3.2 It is admitted that the marriage of Smt. Divyashri was fixed in Vishnu Priya Kalyana Mantapa on 23rd and 24th of January 2018. 3.3 The lift where the accident has occurred is used for transportation of luggage only and using of the lift by persons is strictly prohibited and board is put in front of the lift to said efect. The plaintif has committed negligence in using said lift. Hence, the defendants No. 1 and 2 are not liable to pay any compensation to the plaintif.
3.4 The plaintif has sufered simple injuries. The compensation claimed by the plaintif is arbitrary, exorbitant and highly disproportionate to the injuries sufered by the plaintif. It is true that as on the date of the accident, the Kalyana Mantap was 10 OS.No.4524/2019 covered by Insurance police issued by the defendant No. 3 Insurance company. The Insurance policy issued by the defendant No. 3 bears the policy No. 41038180 covering period from 09.11.2017 to 08.11.2018. If this Court comes to the conclusion that the plaintif is entitled for any compensation towards injuries sufered by the plaintif in the alleged accident, then the liability to pay compensation may be fastened to the defendant No. 3 Insurance company. The defendant No. 3 Insurance company is duty bound to pay compensation to the plaintif towards injuries sufered by the plaintif in the alleged accident. 3.5 With the above assertions and explanations, the defendants No. 1 and 2 have categorically denied rest of the facts pleaded in the plaint allegedly constituting the cause of action and further submitted that the plaintif may be put to strict proof of the facts of the case of the plaintif 11 OS.No.4524/2019 which are categorically denied by the defendants No. 1 and 2. The suit may be dismissed.
4. The pleaded facts of the case of the defendant No. 3 may be stated to the following efect. 4.1 It is admitted that Vishnu Priya Convention Center had taken policy No. 41038180 for the period from 09.11.2017 to 08.11.2018 from the defendant No. 3 Insurance company. 4.2 The extent of liability of the defendant No. 3 Insurance company is limited to the terms and conditions of said policy issued by the defendant No. 3.
4.3 There is no privity of contract between plaintif and the defendant No.3. Said policy is not a statutory policy. Hence, there is no cause of action for the plaintif to file this suit against the defendant 12 OS.No.4524/2019 No.3. The liability of the defendant No.3 is only towards defendant No.1 / insured and said liability is strictly in terms and conditions of the said policy. 4.4 As per Clause-V of said policy Upon happening of an event giving rise to a claim, the defendant No. 1 ought to have given notice to the defendant No. 3 with claim form, written statement, and additional information. Every claim, writ, summons or process and all documents relating to any incident shall be forwarded to defendant No. 3. The defendant No. 1 did not intimate the defendant No. 3 about the accident occurred on 22.01.2018. Hence, the defendant No. 1 has violated the terms and conditions of said policy.
4.5 Except the suit summons from this Court, the defendant No.3 has not received any other documents for verification. The suit summons received from this Court is not accompanied by the 13 OS.No.4524/2019 copies of plaint and other documents. If this Court comes to the conclusion that a decree has to be granted in favour of the plaintif and against the defendants for compensation towards injuries sufered by the plaintif in the alleged accident, then, right of interest may be fixed at 6% p.a. The compensation claimed by the plaintif is excessive, arbitrary and disproportionate.
4.6 The amount of compensation claimed by the plaintif would be a bonanza for the plaintif. The Court fee paid by the plaintif is not sufficient. The suit may be dismissed with cost.
5. Based on the pleadings and other materials on record, this Court has framed the following Issues:
1) Whether plaintif proves the incident dated 22.01.2018 that has been narrated in plaint ?
2) Whether plaintif proves that he has sustained general damages of Rs.
50,00,000/- towards injuries, mental agony, future life, loss of income, 14 OS.No.4524/2019 permanent partial disablement, loss of amenities and nourishments ?
3) Whether defendants No. 1 to 3 prove that Court fee paid by plaintif is improper ?
4) Whether defendants No. 1 to 3 prove that there is no cause of action to file this suit ?
5) Whether defendants No. 1 and 2 prove that defendant No. 3, being the insurer, is liable to pay compensation to plaintif ?
6) Whether defendant No. 3 proves that there is no privity of contract between plaintif and defendant No. 3 ?
7) What Order or Decree ?
6. On behalf of the plaintif, the plaintif got himself examined as PW.1, and got examined one Dr. Nagaraj B.N. as PW.2; and got marked Exs.P.1 to P.54 and got closed his side. On behalf of the defendant No. 3, its Chief Manager claims by name one Sri. Manikantan B. is examined as DW.1 and through him, Ex.D-1 and Ex.D.2 are marked. On 15 OS.No.4524/2019 behalf of the defendants No. 1 and 2, no independent evidence is adduced.
7. Heard the arguments. Perused the records.
8. My findings on the above Issues are as follows:
Issue No.1 : In the Affirmative Issues No.2 & 5 :
are answered
holding that the
plaintif is
entitled for
compensation of
Rs.8,95,633/-
towards the
injuries sufered
by him in the
alleged accident
from the
defendants No.1
to 3 jointly and
severally.
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.6 : In the Negative
16
OS.No.4524/2019
Issue No.7 : As per the final order,
for the following:
REASONS
9. ISSUES NO.1 TO 6 :- In the examination in chief by way of affidavit, the P.W.1 (plaintif Sri. Nithin Kumar) has reiterated the pleaded facts of his case, which are noted supra. The reception in connection with said marriage in said Kalyana Mantap was held on 23.01.2018. Said marriage was held on 24.01.2018. P.W.1 does not know that, in the morning of 23.01.2018, there was a diferent program in said Kalyana Mantap. P.W.1 does not know that, on 23.01.2018 only in the after noon, the persons belonging to the marriage party of marriage of Smt. Divyashri were allowed to enter said Kalyana Mantapa. To a suggestion to the efect that without permission of the owner / Manager of said Kalyana Mantap, P.W.1 and his friend had entered the said Kalyana mantap, reply of P.W.1 is that P.W.1 does not know about said permission 17 OS.No.4524/2019 being obtained by the Marriage party or not, but, however, the P.W.1 went to said Kalyana Mantap on 22.01.2018 as per request of his friend namely Sri. Shreyas. Said Sri. Shreyas is schoolmate of P.W.1.
It is not true to suggest that in the said Kalyana Mantap, in the lift only the goods are permitted and that the persons have to climb up-stair through the stair case. It is not true to suggest that in excess of permitted weight the goods were loaded in the lift at the time of accident. It is true that along with the goods, the P.W.1 and his friend were traveling in the lift from ground floor to 2nd floor in the Kalyana Mantap. It is not true to suggest that since the plaintif and his friend had loaded the goods whose weight was more than fixed, the accident occurred due to negligence on the part of the plaintif and his friend. It is not true to suggest that parents of P.W.1 knew that due to negligence and mistake on the part of the P.W.1, accident occurred. It is not true to suggest that since the accident occurred due to the 18 OS.No.4524/2019 negligence and mistake on the part of the P.W.1, the parents of P.W.1 did not give complaint to the police on the date of accident itself. It is not true to suggest that for said reasons, there is a delay of 9 days in giving complaint to the police. P.W.1 has voluntarily stated that the P.W.1 was taking treatment in the hospital. One Smt. Yashodharaju is mother of the plaintif. The mother of the plaintif is not an eye witness to the accident. After the plaintif returned to his residence, from the hospital, the police had come to his residence and at that point of time, the plaintif gave complaint. When the P.W.1 was taken to Ashraya hospital, the doctor was not there in said hospital. In said hospital, X- ray was done. How the incident had occurred was not stated to said hospital. It is not true to suggest that for the sake of obtaining compensation, in the hospital records, it is mentioned to the efect that P.W.1 got admitted to the hospital with a history of accident in the said lift. It is not true to suggest 19 OS.No.4524/2019 that P.W.1 did not sufer any fracture of bone. It is not true to suggest that the P.W.1 did not sufer any injury requiring any surgery. One Dr. Chirag Narayan Thonse has conducted a surgery on the plaintif. It is not true to suggest that the plaintif has got created Ex.P.51 and Ex.P.52 documents for the sake of this case. At the time of accident in the year 2018, the P.W.1 was a student in 4 th Semister in B.Com course. The P.W.1 completed his degree in the year 2019. The injuries sufered by the P.W.1 in the accident are cured. But pain still persists. P.W.1 is not taking any follow up treatment any more. It is not true to suggest that since the injuries sufered by the P.W.1 are completely cured, P.W.1 is as fit as he was prior to the accident. It is not true to suggest that there is no problem for the P.W.1 to play cricket as he was playing prior to the accident.
10. Ex.P.14 and Ex.P.22 are the hospital bills. It is not true to suggest that as per the said bills, the 20 OS.No.4524/2019 hospital charges are paid under Central Government Health Scheme. It is true that in said two bills it is mentioned as "employer central Government Health Scheme". It is not true to suggest that through said scheme, hospital bills are paid. The P.W.1 can examine the person who issued said 2 bills. P.W.1 cannot say as to whether the said two bills contained cost of medicines provided by the concerned hospital. The P.W.1 can produce the receipts regarding payment of hospital bills. It is not true to suggest that even though the Government has paid hospital bills as per Ex.P.14 and Ex.P.22, P.W.1 is making claim based on said two bills from defendants.
11. The advocate for the defendants No. 1 and 2 has adopted the above noted cross-examination done on behalf of the defendant No. 3. 21
OS.No.4524/2019
12. On behalf of the plaintif, one Dr. Nagaraj B.N., an Orthopedic Surgeon at Sai Ortho and Dental Center, is examined as P.W.2. The P.W.2 has stated to the following efect in his examination in chief by way of his affidavit.
13. On 02.06.2022, the plaintif had approached said hospital for assessment of disability with a history of accident. The P.W.2 has verified the discharge summary pertaining to the plaintif as issued by Fortis Hospital. As per the discharge summary, said hospital treated the plaintif with ORIF with plate and screws with bone grafting on 29.01.2018 for both the calcaneum and later discharged from said hospital. The plaintif had developed bed sores. Hence, the plaintif was admitted again on 13.02.2018 and under-went wound debridement and dressed on 14.02.2018. Thereafter, the plaintif was discharged from the hospital on 16.02.2018. Thereafter, the plaintif 22 OS.No.4524/2019 was on regular follow up in the same hospital and injuries are healed.
13.1 The plaintif now claims that the plaintif is not able to walk for a long distance, not able to stand for a long time, not able to play sports, not able to squat and sit cross legged. A healed surgical scar over both heels of the plaintif was found. The movements of both ankles of the plaintif are restricted. A recent X-ray of both calcaneum shows united fracture with implant in- situ. P.W.2 has examined the plaintif clinically, radiologically and assessment of disability as per Central Government Notification dated 05.01.2018. P.W.2 has assessed 36% of disability of the right lower limb, 36% of physical disability of left lower limb, and 19% of disability in respect of whole body of the plaintif. According to P.W.2, the plaintif may need a sum of Rs.60,000/- for removal of implants. 23
OS.No.4524/2019
14. During the course of cross-examination, the P.W.2 has stated to the following efect. The P.W.2 has not treated the plaintif. P.W.2 has not done surgery to the plaintif. The P.W.2 has not consulted the doctor who performed surgery to the plaintif and the doctor who treated the plaintif. P.W.2 has not seen the patient records pertaining to the plaintif regarding treatment given to the plaintif. At the time of assessing disability, P.W.2 has got obtained X-ray of ankle joint of the plaintif. It is true that fractured bones are united. It is true that without support of walking stick, the plaintif is able to walk, but, however, the plaintif is not walking with ease and the plaintif is walking with difficulty. There is no shortening of leg. It is true that disability assessed by the P.W.2 is only in respect of physical disability sufered by the plaintif. It is true that the plaintif is employed in a private institution. It is true that if a person age of plaintif sufers from any injuries, healing process is faster. 24
OS.No.4524/2019 It is true that muscle power at both ankle joint of the plaintif are reduced. Said reduction of the muscle power at the ankle joint of the plaintif are not temporary, but, they are permanent. At present, the plaintif is not taking any follow up treatment. It is true that in the knee joint and hip joint of the plaintif, there is no movement restriction. The movement restriction at the ankle joint of the plaintif is not grievous in nature. The implants can be removed. It is not true to suggest that as per the guidelines issued by the Central Government only after the treatment is completed, permanent disability may be assessed. It is not true to suggest that in view of the presence of the implants in the ankle joint of the plaintif, there is movement restriction in the ankle joint of the plaintif. It is true that after removal of the implants from the ankle joint, the movement restriction in the ankle joint may be varied. P.W.2 has assessed the disability to the whole body at 1/3rd of the disability to the 25 OS.No.4524/2019 ankle joint. It is true that in the disability certificate, the P.W.2 has included even pain. It is true that pain can be treated. The said treatment to the pain would afect the kidney. It is not true to suggest that as per Central Government guidelines pain is not permanent disability. It is not true to suggest that pain cannot be taken into consideration while assessing the disability. Both ankle joints of the plaintif are operated. It is not true to suggest that as per the Central Government guidelines, the plaintif has not sufered so much of mobility and stability components as certified by the P.W.2. P.W.2 has not issued any estimation to the efect that the plaintif need a sum of Rs. 60,000/- for future surgery for removal of implants. It is true that in well equipped hospital implants can be got removed. It is not true to suggest that the plaintif does not need Rs. 60,000/- for future surgery for removal of implants. It is not true to suggest that the plaintif has not sufered any 26 OS.No.4524/2019 permanent disability and that the plaintif is as healthy as he was prior to the accident.
15. The Chief Manager Claims of the defendant No. 3 Ifco Tokio GIC Ltd by name Sri. Manikantan B is examined as DW.1. DW.1 has entered into the witness box and, on oath, submitted his examination in chief by way of his affidavit, wherein, he has reiterated the pleaded facts of the case of the defendant No.3. The pleaded facts of the case of the defendant No. 3 are noted supra. The DW.3 has not stated anything beyond pleaded facts in the written statement of defendant No.3, which are noted supra.
16. During the course of cross-examination, DW.1 is stated to the following efect. The DW.1 is working in defendant No. 3 Insurance Company since past 4 years. It is not true to suggest that no notice Board is put near the lift to the efect that lift 27 OS.No.4524/2019 is meant for Goods only, but not meant for person. It is not true to suggest that as per terms and conditions of Ex.D.2 policy, the defendant No. 3 is liable to pay compensation to the plaintif in respect of injuries sufered by the plaintif in the alleged accident.
17. On perusal of Ex.D.2 policy, Clause No. 11 and Clause No. 20 would through light on the defence raised by the defendant No. 3. Clause-11 says that injury means death, bodily injury, illness or disease of or to any person. Clause-20 says that for purpose of Ex.D.2 policy, bodily injuries are also covered. As rightly claimed by the learned counsel for the plaintif, no-where in Ex.D.2 policy, there is condition to the efect that the policy is issued by the defendant No. 3 Insurance company in respect of the lift, which caused in the alleged accident, by imposing condition that it should be used only for Goods and not for passengers. Under the above 28 OS.No.4524/2019 noted circumstances, the contention raised on behalf of the defendant No. 3 Insurance Company to the efect that the lift was meant for transportation of goods from one floor to another floor in said Kalyana Mantapa and it is not meant for movement of the passengers from one floor to another and that the alleged accident is not covered under Ex.D.2 policy and that defendant No. 3 Insurance Company is exonerated from its liability to pay any compensation to the plaintif is not acceptable.
18. The learned Advocate for the plaintif has placed reliance upon the following judgments of the Hon'ble Supreme Court and that of the Hon'ble High Court of Karnataka.
(1) A judgment in Civil Appeal No. 4834/2013 (Arising out of Special Leave Petition (Civil) No. 5091 of 2009) in the matter of S. Iyyapan Vs. M/s. United India Insurance 29 OS.No.4524/2019 Company Ltd., and another DD on 01.07.2013;
(2) A judgment in Civil Appeal No. 8510/2022 (Arising out of Special Leave Petition (Civil) No.19277 of 2018) in the matter of Sidram Vs. The Divisional Manager, United India Insurance Co., Ltd., and another DD on 16.11.2022; and (3) A judgment in MFA No. 3721/2022 (NV-I) C/w MFA No.3583/2022 (MV-I) in the matter of Smt. Meenakumari K.R. and others DD on 24.08.2023.
19. The alleged accident took place on 22.01.2018. Ex.P.10 shows that the plaintif was inpatient in Jai Maruthi Hospital, Bengaluru from 22.01.2018 to 27.01.2018. Ex.P.14 shows that the plaintif was inpatient in Fortis Hospital Limited, Cunningham Road, Bengaluru, from 27.01.2018 to 01.02.2018. Ex.P.22 shows that the plaintif was inpatient in Fortis Hospital, Cunningham Road, Bengaluru, from 13.02.2018 to 16.02.2018. It may be noted that the plaintif has sufered fracture of bilateral calcaneum 30 OS.No.4524/2019 in both the ankle joints. Though the plaintif is a teenage boy as on the date of the accident aged about 19 years, having regard to the place on which the bone is fractured where weight of entire body would fall, the plaintif must be held to be immobile for less than 3-4 months. Ex.P.14 inpatient bill shows that employer is Central Government Health. Hence, the learned Advocate for the defendant No. 3 Insurance Company has argued that the Central Government has paid said bill, but, not the plaintif. Ex.P.15 inpatient bill is nothing but bill covered under Ex.P.14. Ex.P.22 also shows Employer Central Government Health. Ex.P.23 is nothing but Ex.P.22. During the course of cross-examination the learned Advocate for the defendant No. 3 has specifically asked a question to the plaintif as to whether the plaintif has any impediment in examining the concerned official of the hospital regarding payment of bills as per Ex.P.14 and Ex.P.22, for which, the plaintif has stated that he has no impediment for 31 OS.No.4524/2019 examining the concerned official of said hospital. But, however, the plaintif has not chosen to examine any such hospital authorities or concerned Department of the Central Government regarding direct payment to said hospital or regarding reimbursement towards bills as per Ex.P.14 and Ex.P.22. Under said circumstances, Ex.P.14, Ex.P.15, Ex.P.22 and Ex.P.23 are not considered for awarding compensation. The total amount of the bills as per Ex.P.8 to Ex.P.13, Ex.P.16 to Ex.P.21 and Ex.P.24 to 45 comes to Rs.72,433/-.
20. The P.W.2 Doctor has opined that the plaintif has sufered partial permanent disability to the tune of 19% in respect of whole body. The P.W.2 has opined that there is movement restrictions at the ankle joints of both the legs of the plaintif. According to the P.W.2, the disability is permanent, but, not temporary. Under the facts and circumstances of the case on hand, loss of future 32 OS.No.4524/2019 earning capacity of the plaintif is taken as 15%. The learned Advocate for the defendant No. 3 has argued that subsequent to the accident, the plaintif has completed his degree and he is employed in a private company. Let that be it may, in the facts and circumstances of the case on hand, it has to be held that the fracture sufered by the plaintif has afected the earning capacity of the plaintif at least by 15%, on a guesswork made. In Sidram case, the Hon'ble Supreme Court has taken the notional Income of 19 years old boy at Rs. 8,000/- per month. Said Notional Income is in the year 2012. In the case on hand, the accident occurred during January 2018. There is a time gap of almost 6 years between 2012 and 2018. Price index from time to time has to be taken into consideration. Hence, in the case on hand, the Notional Income of the plaintif is taken as Rs. 13,000/- per month. The multiplier applicable to said group of 19 years is 18. Based on the above information, the loss of future 33 OS.No.4524/2019 earning capacity of the plaintif is Rs. 13,000 X 12 X 18 X 15% = 4,21,200/-.
21. The loss of earning for 4 months period would be Rs. 13,000 X 4 = 52,000/-.
22. P.W.2 has opined that for removal of the implants for undergoing surgery, the plaintif requires to Rs. 60,000/-, same is accepted.
23. Towards attendant charges, a sum of Rs. 75,000/- is awarded.
24. Towards litigation expenses, a sum of Rs. 15,000/- is awarded.
25. Towards conveyance charges, a sum of Rs. 10,000/- is awarded.
34
OS.No.4524/2019
26. Towards pain and sufering, a sum of Rs. 75,000/- is awarded.
27. Towards loss of marriage prospect, a sum of Rs. 75,000/- is awarded.
28. Towards loss of amenities, a sum of Rs. 40,000/- is awarded.
29. Above calculation is reflected in table form as follows:
Amount (Rs.) Total amount of bills 72,433-00 Loss of Future earning capacity 4,21,200-00 Loss of earning for 4 months period 52,000-00 Removal of implants for undergoing 60,000-00 surgery Attendant charges 75,000-00 Litigation expenses 15,000-00 Conveyance charges 10,000-00 Pain and suffering 75,000-00 Loss of marriage prospect 75,000-00 Loss of amenities 40,000-00 Total 8,95,633-00 35 OS.No.4524/2019
30. The plaintif would be entitled to total compensation amount of Rs. along with interest at 7% p.a., from the date of filing of the suit till realisation.
31. In view of the above discussions, my conclusion on issues No.1 to 6 are as follows:
31.1 The plaintif has proved that the alleged accident has taken place on 22.01.2018 as alleged in the plaint. Hence, issue No.1 is held in the affirmative.
31.2 The Insurance policy as per Ex.D.2 shows that it is not restricted to the personal injury to the owner of the Kalyana Mantapa. On the other hand, it is to cover injury to any person in the Kalyana Mantapa. Under the said circumstances, question of existence or non-existence of privity of contract between the plaintif and the defendant No.3 under 36 OS.No.4524/2019 Ex.D.2 is absolutely irrelevant. Hence, issue N.6 is held in the negative.
31.3 Just compensation in the facts and circumstances of the case on hand is Rs.8,95,633/-.
Hence, issues No. 2 and 5 are answered holding that the plaintif is entitled for compensation of Rs.8,95,633/- towards the injuries sufered by him in the alleged accident from the defendants No.1 to 3 jointly and severally.
31.4 The plaintif has paid deficit Court Fee of Rs.2,02,125/- on 25.10.2023. The said Court Fee paid is sufficient. Hence, issue No.3 is hold in the negative.
31.5 There is cause of action for this suit. Hence, issue No. 4 is held in the negative.
32. Issue No.7:- Hence, the following: 37
OS.No.4524/2019 ORDER (1) The suit is decreed with cost.
(2) The defendants No. 1 to 3 are jointly and severally liable to pay compensation to the plaintif to a tune of Rs.8,95,633/- along with interest at 7% p.a. from the date of filing of the suit till realisation. (3) The defendant No.3 is directed to deposit the decreetal amount into this Court.
(4) On deposit, the plaintif would be entitled to receive the decreetal amount from the office of this Court.
(5) Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 5 th day of January 2024.) (D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City.
38
OS.No.4524/2019 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Nithin Kumar
P.W.2 Dr. Nagaraj B.N.
(b) Defendants' side :
D.W.1 Manikantan B
2. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certificate issued by ASC Degree College
Ex.P.2 Radiology report
Exs.P.3 & 4 X-rays
Ex.P.5 to 7 Photos
Ex.P.8 & 9 OPD Bills
Ex.P.10 to 16 Inpatient bills
Ex.P.17 to 21 Cash bills
Ex.P22 & 23 Inpatient bills
Ex.P.24 to 27 Tax Invoices
Ex.P.28 to 40 Out patient bills
Ex.P.41 to 45 Cash bills
Ex.P.46 FIR in Crime No. 51/2018
Ex.P.47 Charge sheet
Ex.P.48 Certified Copy of order sheet in CC No.
25176/2018
Ex.P.49 Certified Copy of plea recorded in CC No.
25176/2018
Ex.P.50 Insurance policy
Ex.P.51 Discharge summary
Ex.P.52 Discharge summary
39
OS.No.4524/2019
Ex.P.53 X-ray film
Ex.P.54 Notes
(b) Defendants' side :
Ex.D.1 GPA
Ex.D.2 Insurance policy copy
VI Addl. City Civil & Sessions Judge Bengaluru City.