Bangalore District Court
In vs In All The Cases: 1. Depot Manager on 29 February, 2020
BEFORE THE MOTOR ACCIDENT CLAIMS
TRIBUNAL; BENGALURU (SCCH-9)
DATED THIS THE 29th DAY OF February 2020
PRESENT: Sri.Abdul Khadar B.A.,LL.B.,
Judge & XXIV ACMM & MACT.
MVC.Nos.2455 to 2458/2018
Petitioner in
MVC 2455/2018 1.Sudha
Aged about 49 years.
W/o Gangadhar N.
2. Madhushree G
Aged about 27 years
D/o Gangadhar N
3. Srikanth G
Aged about 23 years
S/o Gangadhar N.
All are Residing /at;
No.4, 8th Cross Road,
K.H.B. Bapujinagar,
Bengaluru South,
Govt. Electric Factory
Bengaluru-26.
Petitioner in
MVC.2456/2018 : Srikanth G
Aged about 23 years
S/o Gangadhar N.
Residing /at:
No.4, 8th Cross Road,
K.H.B. Bapujinagar,
SCCH 09 2 MVCs,2455/18 to 2458/18
Bengaluru South,
Govt. Electric Factory
Bengaluru-26.
Petitioner in
MVC.2457/2018 : Madhushree G
Aged about 17 years
D/o Gangadhar N
Residing /at:
No.4, 8th Cross Road,
K.H.B. Bapujinagar,
Bengaluru South,
Govt. Electric Factory
Bengaluru-26.
Petitioner in
MVC.2458/2018 : Sudha
Aged about 49 years
W/o Gangadhar N
Residing /at:
No.4, 8th Cross Road,
K.H.B. Bapujinagar,
Bengaluru South,
Govt. Electric Factory
Bengaluru-26.
(By Sri.Jagadeesh Murthy-Advocate)
V/s
Respondents
in all the cases: 1. Depot Manager, KSRTC,
Shanthinagar Depot,
Bengaluru, Karnataka.
2. The Managing Director,
KSRTC, K.H.Road,
Bengaluru.
(By. M.B. Basavaraju- Advocate)
SCCH 09 3 MVCs,2455/18 to 2458/18
3. The Divisional Manager,
The New India Assurance Co.Ltd.,
Divisional Office XI-672100,
4th Floor, Tower Block,
Unity Building, J.C.Road,
Bengaluru-02.
(By Sri.Ravi S. Samprathi-
Advocate)
COMMON JUDGMENT
Petitions are filed under Section 166 of MV Act
seeking compensation of Rs.2,00,00,000/- for the death of
Sri.N.Gangadhara, Rs.1,00,00,000/- for the injuries
sustained by Srikanth, Rs.20,00,000/- for the injuries
sustained by Madhushree G. and Rs.10,00,000/- for the
injuries sustained by Sudha in a road traffic accident.
2. MVC.2455/2018 is filed by the legal representatives
of deceased Gangadhara N. MVC.2456/2018 is filed by the
Srikanth. MVC.2457/2018 is filed by the Madhushree and
MVC. 2458/2018 is filed by Sudha. These cases arising
out of same accident, hence they are clubbed together in
MVC.2455/18 to render common judgment in order avoid
repetition.
3. Petitioners in MVC.2455/2018, pleaded that,
on 12.01.2018 about 11-20p.m., N. Gangadhar, his wife
SCCH 09 4 MVCs,2455/18 to 2458/18
and along with daughter and son's were boarded a bus to
reach Darmastala from Bengaluru KSRTC bus stand by
reserving the seats in KSRTC Airavata Volva Bus bearing
No.KA-01-F-8513, while going to Darmstala on 13.01.2018
early morning at about 3.30a.m. the driver was driving
bus in a rash and negligent manner and dashed iron wall
on the left side of the road Shanthi Grama Hobli near
Krishna (Agriculture) College NH-75, BM road and fell
down under the bridge. Due to impact, the passenger by
name Gangadhara died on the spot and other 6 members
were also died at the spot and the family members of the
deceased got grievous injuries. After the accident the PM
of Gangadhara was done in Chamarajendra Hospital,
Hassan Institution of Medical and Science and body
shifted to his native place for funeral and last rites. The
petitioners have spent for sum of Rs.2,00,000/- for
transportation and funereal expenses. The deceased
working as office Superintendent at Regional Vocational
Training Institute run by the Central Government of India
and drawing salary of Rs.77,181/- p.m. along with other
allowance and deceased still had 4years for his
retirement. The petitioners are fully dependent upon the
deceased. The accident occurred on account of sole rash
and negligent manner of driving of KSRTC Bus. The
SCCH 09 5 MVCs,2455/18 to 2458/18
jurisdictional Shanthigrama, Hassan Rural Police have
registered case in Cr. No.4/18, for the offence punishable
U/Sec. 279, 337, 304(A) of IPC against driver of KSRTC
Bus. The respondents' have jointly and severally liable for
claim of the petitioner for a sum of Rs.2,00,00,000/- with
future prospective and current interest on 18% p.a.
4. The petitioner in MVC.2456/2018 is pleaded that
the averments as stated above in his petition with regard
to place of occurrence and negligent act of driver of
KSRTC. Due to the accident petitioner was unconscious
and he was taken to NDRK Pvt. Hospital, Hassan for
treatment. Due to the accident the petitioner's spinal cord
got damaged and for further treatment he was shifted
Hosmat Hospital, Bengaluru, wherein he took treatment as
inpatient from 13.01.2018 to 20.01.2018. The petitioner
further submits that before the accident he was hale and
healthy and was working as Field Executive at PAMAC
Agency and petitioner also helping for day to day life.
After this accident, the petitioner got huge loss and he is
not able to get up from the bed and cannot able to do
daily routines. Now he is entirely dependent on others. He
is aged about 23years and keeping good health and
drawing salary of Rs.12,000/-p.m. along with other
SCCH 09 6 MVCs,2455/18 to 2458/18
allowances and incentives. Due to the said accident the
petitioner has lost his father. Mother is also injured and
mother of the petitioner is a house maker so they are not
having any source of income for the treatment of him to
lead their life. The petitioner was appointed a servant to
take care of him daily routines by paying Rs.15,000/- p.m.
5. The petitioner in MVC.2457/2018 is pleaded the
averments as stated above in the petition with regard to
place of occurrence and negligent act of driver of KSRTC.
Due to the accident petitioner was unconscious and she
was taken to NDRK Pvt. Hospital, Hassan for treatment.
Due to the accident, petitioner right forearm, left knee,
Right forearm swelling and right hand bone was broken
and for further treatment, she was shifted to Hosmat
Hospital, Bengaluru, wherein she took treatment as an
inpatient from 13.01.2018 to 20.01.2018. The petitioner
submits that before the accident, she was hale and
healthy and she was a software engineer, working for I&A
Software consulting Pvt. Ltd. After this accident she got
huge loss and she is not able to work and hence she quit
the job. The petitioner's family was in search of groom but
after this accident no one is coming to marry her. She
was getting salary of Rs.35,000/-p.m. along with other
allowances as an Engineer in I&A. Due to the said accident
SCCH 09 7 MVCs,2455/18 to 2458/18
the petitioner has lost her father and brother was also on
death bed on the impact of the incident. Her mother is a
house maker, now her family is not getting any income to
lead their family and also her brother's treatment.
6. The petitioner in MVC.2458/2018 is pleaded the
averments as stated above in the petition with regard to
place of occurrence and negligent act of driver of KSRTC.
Due to the accident petitioner was unconscious and she
was taken to Government Hospital, Hassan for treatment.
Due to the accident petitioner's Chest Ribs was Broken, L1
vertebra Compression fractured and blunt chest got
damaged and for further treatment, injured was shifted to
Hosmat Hospital, Bengaluru and she was admitted as an
inpatient from 13.01.2018 to 20.01.2018. The petitioner
was hale and healthy and she was a house wife and aged
about 49 years and keeping good health. Due to the said
accident, the petitioner has lost her husband and her
younger son is on death bed, she is spending huge amount
for his treatment and her elder daughter was also dropped
from the job and she is also suffering from disabilities,
Now the petitioner and her family not getting any income
to lead their family and also for her children treatment.
This petitioner has engaged a male servant to look after
SCCH 09 8 MVCs,2455/18 to 2458/18
her son and to do his work by paying a salary of
Rs.15,000/-p.m.
7. The jurisdictional Shanthigrama, Hassan Rural
Police have registered case in Cr. No.4/18, for the offence
punishable U/Sec. 279, 337, 304(A) of IPC against driver
of KSRTC Bus. The respondents' are jointly and severally
liable for claim of the petitioners in all the cases with
future prospective and current interest on 18% p.a.
Hence, these petitions are filed.
8. As contemplated under law, notices came to
be issued to the respondents, pursuant to the notices, the
respondent No.1 to 3 appeared before the court and filed
their respective written statements in all the cases. The
respondent No.2 not filed written statement inspite of
grant of sufficient time. Hence its written statement taken
as not filed.
9. The respondent No.1 resisted the claim petitions
by filing written statements denying petition averments in
toto. This respondent denies that there was rashness or
negligence on the part of driver of KSRTC Airavata Volvo
bus bearing No.KA.01/F-8531 and he drove in a rash and
negligent manner resulted in the alleged accident. Due to
which, Gangadhara succumbed to the injuries on the spot,
other petitioners in MVCs.2456 to 2458/18 sustained
SCCH 09 9 MVCs,2455/18 to 2458/18
grievous injuries. On the contrary, this respondent
submits that on the date of accident, the bus in question
was on its schedule trip from Bengaluru to Dharmastala
and it was driven by its driver slowly and cautiously on the
left side of he road by observing all traffic rules and
regulations, while proceeding on BM road at H.Aladhahalli
in front of Agriculture College, a lorry which was coming
from opposite side suddenly took U turn and entered the
path of the bus , at that time driver sensing mishap took
ghe bus to the extreme left side of the road, which came
in contact with the road side culvert, which resulted in the
accident. This respondent denies age, income and
occupation and compensation claimed by all the petitioners
in all the cases is exorbitant and excessive. This
respondent denies the relationship of petitioners in all the
cases including MVC.2455/18. The KSRTC bus bearing
No.KA.01/F-8513 was insured with the 3rd respondent and
the policy was in force as on the date of accident and 3rd
respondent is liable to pay compensation to the petitioners
in all the cases. This respondent has paid exgretia of
Rs.62,707/- to the petitioners in MVC.2455/18. The
petitioner in MVC.2456/18 paid exgretia of Rs.2,92,570/-.
The petitioner in MVC.2457/18 paid exgretia of
Rs.85,936/-. The petitioner in MVC.2458/18 paid exgretia
SCCH 09 10 MVCs,2455/18 to 2458/18
of Rs.62,707/- immediately after the accident to all the
petitioners in the said cases and it is entitled for the same
out of the judgment and award. Hence, it is prayed to
dismiss the petitions against them.
10. The respondent No.3 filed objections in all the
cases contending that the petitions are not maintainable
either in law or on facts and the same is liable to be
dismissed limine. This respondent seeks protection
U/Sec.147 and 149(2) of M.V. Act. The owner of the
offending vehicle is duty bound to submit all vehicular
documents including DL as mandated under Sec.134(c) of
MV Act. There is clear violation of provision of law and
contract of insurance. The mandatory duty of concerned
police station to forward all the requirements as
contemplated u/S 158(6) of MV Act, within 30days from
the date of information. It is denied the mode and manner
of accident. The compensation claimed by the petitioners
in all the cases is exorbitant and excessive. It is submitted
that the driver of bus was not holding valid and effective
DL at the time of accident and the 1st and 2nd respondents
have handed over he vehicle to the said driver, therefore,
contract of insurance is not obligated to indemnify the 1st
and 2nd respondents and the petitions against this
respondent is liable to be dismissed. This respondent
SCCH 09 11 MVCs,2455/18 to 2458/18
denied age, avocation and income of injured persons as
well as deceased. Among these grounds and reserving
liberty to contest the claims on all grounds u/s 170 of MV
Act, it prays to dismiss all the petitions.
11. Following issues arise for my consideration:
Issues in MVC 2455/18:
1.Whether the petitioners prove that, the
deceased Sri. Gangadhara died due to the
injuries sustained in the road traffic accident
that occurred on 12-01-2018 around
11.20p.m by reserving the seats to
Dharmastala from Bengaluru KSRTC bus
stand. On 13-1-2018 early morning at
3.30a.m. driver of bus bearing Reg. No.KA-
01/F.8513 driving the bus in a rash and
negligent manner and dashed to the iron wall
on the left side of Shanthi grama Hobli near
Krishi college NH-75 BM Road and he fell
down under bridge. Due to the impact,
passenger Gangadhara died on the spot and
other passengers sustained grievous injuries
in the accident?
2. Whether the petitioners are entitled for
compensation as claimed? If so, to what
amount and from whom?
3. What order or award?
ISSUES IN MVC. 2456/18:
SCCH 09 12 MVCs,2455/18 to 2458/18
1. Whether petitioner proves that on 12-1-2018
at about 11.20p.m, injured Srikanth and his
parents were board bus to reach Dharmastala
from Bengaluru KSRTC bus by reserving tickets
KSRTC bus bearing Reg.No.KA-KA.01/F.8513.
On 13-1-2018 early morning at 3.30a.m. driver
of bus was driving it in a rash and negligent
manner and dashed to the iron wall on the left
side of Shanthi Grama Hobli near Krishi college
NH-75, BM Road and he fell down under bridge.
Due to the impact, he sustained grievous
injuries in the accident?
2. Whether petitioner is entitled for
compensation? If so, how much and from
whom?
3. What order or award?
ISSUES IN MVC. 2457/18:
1. Whether petitioner proves that on 12-1-2018
at about 11.20a.m, his brother and parents
were boarded bus to reach Dharmastala from
Bengaluru KSRTC bus by reserving tickets
KSRTC bus bearing Reg.No.KA-KA.01/
F.8513 on 13-1-2018 early morning
at3.30a.m. driver of bus was driving it in a
rash and negligent manner and dashed to
the iron wall on the left side of Shanthi
Grama Hobli near Krishi college NH-75, BM
Road and he fell down under bridge. Due to
the impact, he sustained grievous injuries in
the accident?
SCCH 09 13 MVCs,2455/18 to 2458/18
2. Whether petitioner is entitled for
compensation? If so, how much and from
whom?
3. What order or award?
ISSUES IN MVC. 2458/18:
1. Whether petitioner proves that on 12-1-2018
at about 11.20a.m, her family members
boarded to reach Dharmastala from Bengaluru
KSRTC bus by reserving tickets in KSRTC bus
bearing Reg.No.KA-KA.01/F.8513. On 13-1-
2018 early morning at3.30a.m. driver of bus
was driving it in a rash and negligent manner
and dashed to the iron wall on the left side of
Shanthi grama Hobli near Krishi college NH-75,
BM Road and bus fell down under bridge. Due
to the impact, she sustained grievous injuries
in the accident?
2.Whether petitioner is entitled for
compensation? If so, how much and from
whom?
3. What order or award? .
12. To prove their cases, 1st petitioner in
MVC.2455/2018 herself as PW.1 and got marked 10
documents at Ex.P.1 to P.10. N.Ramesh-Accountant,
working at Regional Vocational Training Institute for
Women examined as PW-2 and got marked Ex.P.11 and
Ex.P.12. H.V.Bhanuprakash, court Commissioner
SCCH 09 14 MVCs,2455/18 to 2458/18
appointed on 25-1-2019 submitted his report in
MVC.2456/18 and marked documents at Ex.P.1 to P.257.
Dr.N.C.Prakash, working as Neuro & Spine Surgeon at
Hosmat hospital, Bengaluru examined as PW-2 and got
marked Ex.P.258 to 260.S.N.Rajashekara, Physiotherapist,
Focus Diagnostic Center, Bengaluru is examined as PW-3
and got marked Ex.P.261. The petitioner in MVC.2457/18
is examined herself as Pw-1 and got marked exs.P.1 to
P.14. Dr.Krishan Prasad Professor of Orthopedics and
consultant Surgeon, Hosmat hospital, Bengaluru examined
as PW-2 and he got marked Ex.P.15 to P.17. The
petitioner in MVC.2458/18 is examined herself as PW-1
and got marked Exs.P.1 to P.10. Dr.Krishan Prasad
Professor of Orthopedics and consultant Surgeon, Hosmat
hospital, Bengaluru examined as PW-2 and he got marked
Ex.P.11 to P.14. The respondent No.1 examined Traffic
inspector of KSRTC Volvo in all the cases as RW.1 through
her got marked 5 documents at Ex.R1 to R.5.
13. Heard arguments from both sides.
On the basis of the above evidence and materials
placed on record, I record my findings in all the cases to
the above issues as follows:
Issue-1 in all cases : Affirmative.
Issue-2 in all cases : Partly in affirmative.
SCCH 09 15 MVCs,2455/18 to 2458/18
Issue-3 in all cases : As per final order for
the following;
REASONS
Issue-1 in all cases:-
14. Petitioners asserted that, Gangadhara breathed
his last breath in a road traffic accident occurred due to
the actionable negligence of car driver. Per contra
respondents denied the same.
15. It is well settled law that to claim compensation
Under Sec.166 of MV Act it is sine-qua-non to demonstrate
the actionable negligence on the part of tortfeasor which is
to be proved by preponderance of probability, but not
beyond shadow of doubt as required in a criminal trial.
Initial burden is on the petitioners to demonstrate the
actionable negligence on the part of driver of car in
question. In this backdrop, let us scrutiny the proof display
by the parties to lis to unveil the truth regarding rival
contentions.
16. To absolve the burden of proof injured
petitioners in all the cases have filed evidence affidavits
reiterating petition averments. They specifically stated
that, on the ill fated day i.e., on 12.01.2018 about 11-20
p.m., N. Gangadhar, his wife and along with daughter
SCCH 09 16 MVCs,2455/18 to 2458/18
and son's were boarded a bus to reach Darmastala from
Bengaluru KSRTC bus stand by reserving the seats in
KSRTC Airavata Volva Bus bearing No.KA-01-F-8513,
while going to Darmstala on 13.01.2018 early morning at
about 3.30a.m. the driver was driving bus in a rash and
negligent manner and dashed iron wall on the left side of
the road Shanthi Grama Hobli near Krishna (Agriculture)
College NH-75, BM road and fell down under the bridge.
Due to impact, the passenger by name Gangadhara died
on the spot and other 6 members were also died at the
spot and the family members of the deceased got
grievous injuries. After the accident the PM of Gangadhara
was done in Chamarajendra Hospital, Hassan Institution
of Medical and Science and body shifted to his native
place for funeral and last rites. The petitioners have
spent for sum of Rs.2,00,000/- for transportation and
funereal expenses. The petitioners in other
MVCs.2456/2018 to 2458/18 sustained fracture injuries in
the said accident.
17. To justify verbal evidence of petitioners placed
reliance on documents viz., in MVC No.2456/2018
Ex.P.1 is the FIR & Complaint, Ex.P.2 is the Spot mahazar,
Ex.P.3 is the Sketch, Ex.P.4 is the Charge Sheet, Ex.P.5 is
the IMV report, Ex.P.6 is the P M report, Ex.P.7 is the
SCCH 09 17 MVCs,2455/18 to 2458/18
death Certificate, Ex.P.8 is the Salary Certificate, Ex.P.9
ID card issued by RVDI, Ex.P.10 is the C/C of Aadhaar
Card Ex.P.11 is the ID Card, Ex.P.12 is the Authorization
letter.
18. In MVC No.2456/2018: Ex.P.1 is the FIR, Ex.P.2
Complaint, Ex.P.3 is the Charge Sheet, Ex.P.4 is the
Panchanama, Ex.P.5 is the Sketch, Ex.P.6 is the Spot Mahazar ,
Ex.P.7 is the Accident report, Ex.P.8 is the Wound certificate,
Ex.P.9 is the Discharge Summary, Exs.P.10 to P.202 are the
Medical bills, Exs.P.203 to P.253 are the Medical prescription
and records, Exs.P.256 to P.257 are the MRI Scan and X-rays.
Ex.P258 &259 are the Out patient case sheet along withWound
certificate, Ex.P259 is the, Ex.P260 is the Inpatient case sheet.
Ex.P261 is the Authorization letter.
19. In MVC No. 2557/2018: Ex.P.1 is the FIR &
Complaint, Ex.P.2 is the Spot mahazar, Ex.P.3 is the Sketch,
Ex.P.4 is the Charge Sheet, Ex.P.5 is the IMV report, Ex.P.6
is the Salary certificate, Ex.P.7 is the 34 medical bills, Ex.P.8
is the C/C of I D card, Ex.P.9 is the C/C of Aadhaar Card,
Ex.P.10 is the C/C of Pan Card, Ex.P.11 is the Discharge
summary, Ex.P.12 is the Medical Bills, Ex.P13&14 are the
X-rays and X-ray report, Ex.P15&16 are the 2 Out Patient
files, Ex.P17 is the inpatient file.
20. In MVC No.2458/2018:Ex.P.1 is the FIR &
Complaint, Ex.P.2 is the Spot mahazar, Ex.P.3 is the
SCCH 09 18 MVCs,2455/18 to 2458/18
Sketch, Ex.P.4 is the IMV report, Ex.P.5 is the Wound
certificate, Ex.P.6-is the Charge sheet, Ex.P.7 is the
Discharge summary, Ex.P.8 is the Medical Bills, Ex.P.9 is
the 4MRI and C.T scan report, Ex.P.10 is the C/C of
Aadhaar Card, Ex.P.11&12 are the 2 Out patient files,
Ex.P.13 is the Inpatient file and Ex.P.14is the X-ray with
Clinical report.
21. In cross-examination Pw.1 in all the cases
stated that on 12.01.2018 about 11-20p.m.,N. Gangadhar,
his wife, daughter and son's were boarded a bus to reach
Darmastala from Bengaluru KSRTC bus stand by reserving
the seats in KSRTC Airavata Volva Bus bearing No.KA-01-
F-8513, while going to Darmstala on 13.01.2018 early
morning at about 3.30a.m. the driver was driving bus in
a rash and negligent manner and dashed iron wall on
the left side of the road Shanthi Grama Hobli near
Krishna (Agriculture) College NH-75, BM road and fell
down under the bridge. Due to impact, the passenger by
name Gangadhara died on the spot and the family
members of the deceased got grievous injuries.
22. PW-1 in all the cases deposed in his cross-
examination that Mr.Sreedhar Hegade has filed the
complaint to the police. PW-1 in all the cases denied that
SCCH 09 19 MVCs,2455/18 to 2458/18
the accident took place due to driver of KSRTC bus
suddenly took towards left side of the road by seeing the
lorry which was coming from the opposite side of the bus
and the bus fell down under the bridge. PW-1 in all the
cases denied in order to get compensation they are
deposing falsely that due to the negligence of the driver of
KSRTC bus this accident took place. PW-1 in all the case
admitted that the KSRTC have paid the medical expenses
of all the petitioners. PW-1 in all the case denied that they
sustained only minor injuries and no surgeries were
conducted on them. The petitioner in MVC.2456/18
appointed Court Commissioner on 25-1-2019 for recording
evidence of him as he is not in a position to come and
depose before the court due to spinal cord damage.
23. The Respondent No.1 examined its Traffic
Inspector, KSRTC, Bengaluru Central Division, Bengaluru
as RW-1. She has produced Ex.R.1to R.5. Rw-1 cross
examined by the learned counsel for the petitioners
wherein she deposes that they will pay exgretia of
Rs.5,000/- for the injured and Rs.15,000/- for the spot
death family on the spot. She admits of having paid
medical expenses in all these connected cases and they
have not informed about payment of exgretia amount to
the petitioners in all the case to the insurance company.
SCCH 09 20 MVCs,2455/18 to 2458/18
24. As per charge sheet, driver of KSRTC bus drove
the vehicle and dashed to the iron wall on the left side of
the road Shanthigrama Hobli near Krishi college NH-75,
BM road and fell down under the bridge. Due to the
impact, Gangadhar died on the spot and other petitioners
sustained grievous injuries.
25. On perusal of entire evidence adduced by the
Rw-1 it is quite clear that the respondent No.1 fails to
prove that, the driver of KSRTC bus was driven in a rash
and negligent manner and dashed to the iron wall on the
left side of the road of Shanthigrama and due to the
impact, the bus fell down under the bridge. The evidence
of RW1 nowhere helps the respondents to disprove the
negligent act of the driver of the offending vehicle. The
respondent No.1 not examined the driver of KSRTC before
the court, who is the eye witness of the accident. Hence,
the documents produced by the respondents cannot be
considered as gospel truth since it is not proved in
accordance with law. The police records clearly speaks
that the vehicle in question was driven by the driver of
insured. The police authorities in discharge of their official
duty after through investigation have prepared the
reports, which cannot be overlooked and the same has
to be construed as a reliable evidence.
SCCH 09 21 MVCs,2455/18 to 2458/18
26. In the background of evidence supra, let us
analyze the facts at hand to unfold the truth regarding
rival contentions raised by the parties to lis to ascertain
factum of negligence of bus which resulted in the
gruesome accident in which Gangadhar suffered injuries
and lost his life and other petitioners of the bus suffered
injuries.
27. Discussion supra manifest that there is no
dispute about the very occurrence of accident,
involvement of vehicles, injuries and death. The only bone
of contention raised by the respective parties is about the
factum of negligence which resulted in the fatal accident.
In this backdrop let us find out the real tortfeasor, whose
negligence resulted in a terrific accident.
28. In the instant case, there is no dispute with
respect to the police records produced by the petitioners
which were prepared by the police. Said documents
manifest that the accident took place due to the
negligence of car driver. Among said documents the crime
scene sketch and spot mahazar (Ex.P3 & 2) depict the
topographical situation of place of accident and true
picture of accident. Place of accident is Hassan-Mangalore
single way road. The driver of bus dashed to iron wall
due to high speed and the bus fell down under the bridge.
SCCH 09 22 MVCs,2455/18 to 2458/18
If the bus was driven slowly in a Junction, the accident
could have been easily avoided. In the absence of
plausible explanation the only inference that can be drawn
is that the car driver is at fault. The factual scenario
emerges from the undisputed documents makes it crystal
clear that the accident took place solely on account of
negligence of bus driver in which passenger Gangadhar
and other petitioners of this case suffered injuries. Hence,
issue-1 in all the cases is answered in affirmative.
Issue-2 in MVC 2455/2018:
29. On account of death of Gangadhar in a road traffic
accident the petitioners being wife, daughter and son are
entitled for compensation as his legal heirs.
Loss of dependency: To ascertain actual loss of
dependency the age, income of deceased and the number
of dependants of the deceased, are to be taken into
consideration. First petitioner being the wife, daughter
and son of deceased Gangadhar. Hence, they are the legal
representatives and dependants of deceased.
30. On the other hand, the respondent No.1&3 have
denied the above contention of the petitioners in toto. To
prove the relationship, the petitioners have produced the
notarized copy of Adhaar cards of petitioner No.1 to 3. On
perusal of the contents of said documents, it reveals that,
SCCH 09 23 MVCs,2455/18 to 2458/18
the petitioners are the wife, daughter and son of deceased
Gangadhar and as such, they are the legal representatives
of deceased. Considering the above facts and on perusal
of evidence of PW-1 coupled with documents, I am of the
opinion that, the petitioner Nos.1 to 3 are the legal heirs
and dependents of deceased and they are entitled for
compensation under the head of loss of dependency.
31. Petitioners stated that the deceased was aged
56years at the time of accident. In Aaadhar card at Ex.P10
his date of birth indicates as 1961. This document shows
that the deceased was aged 57 years at the time of
accident. Petitioners asserted that the deceased was
earning Rs.77,181/- per month by working as Office
Superintendent a Regional Vocational Training Institute,
which runs by the Central Government of India,
Bengaluru. To prove the avocation and income of
deceased, petitioners have produced Office ID at Ex.P.9
and salary slip at Ex.P.8 for the month of December 2017.
This accident occurred during January 2018. As per his
pay slip, he was earning Rs.77,181/-p.m. He has produced
the computer generated pay slip.
32. The petitioners examined N.Ramesh, Accountant
of Regional Vocational Training Institute as PW-2. He
deposed that he knows Gangadhara since past 32years.
SCCH 09 24 MVCs,2455/18 to 2458/18
He has been authorized to give evidence in this case with
regard to the salary of deceased , who had met with RTA
on 13-1-2018 while going to Dharmasthala. He was
drawing salary of Rs.77181/-p.m. He produced Exs.P.11
and Ex. P.12.
33. In his cross-examination by learned counsel for
the respondent No.1&3, PW-2 admits that the appointment
order and service register book are in the company. The
deceased Gangaghara was going to retire at the age of
60years. After his death, his wife and children are getting
pension. They have given Rs.20lakhs benefit amount to his
legal heirs. He denied that the legal heirs got more than
Rs.20lakhs benefits due to the death of Gangadhara.
34. Therefore, considering the occupation of the
deceased, this Tribunal has taken into consideration his
monthly gross income as Rs.77,181/- p.m.
35. The Counsel for the R3 argued that the deceased
would have attained superannuation on 20-12-2021 and
he had left service of 48 months, where the multiplier
applicable is higher than the number of years of service,
which the deceased has before superannuation, the
contribution of the family cannot obviously be calculated
with the reference to the salary income for the entire
period of multiplier. Hence, prayed to adopt the principles
SCCH 09 25 MVCs,2455/18 to 2458/18
split multiplier as per the law laid down by the Hon'ble
Karnataka High Court in the case of Laxmikumar V/s Union
of India reported in ILR 2000 Karnataka 3809 and in MFA
No.3220/15 and MFA no.4552/15 dated 29-05-2019 and
MFA No.22120/10 and 20053/2011. He also filed written
argument and produced the calculation of the principles of
split multiplier, the multiplier applicable to the age of
deceased would be 9. The salary drawn during service is at
Rs.80,279/- the deceased has left around 4 years of
service multiplier of 4 to be consumed out of 9 and on
superannuation the deceased would not have drawn the
same salary and thereby 50% of income should be
considered as income of the deceased on retirement. The
income considered shall be Rs.40,140/- multiplier of 5 to
be consumed out of 9. Hence, on the heads of loss of
dependency in total works of Rs.41,43,512/-. On perusal
of the rulings lead by the R3 is not applicable to the facts
and circumstances of the present case on hand. Since, the
Hon'ble Supreme Court in Sarala Varma case does not
envisage application of split multiplier and that in the
absence of any specific reason and evidence on record the
tribunal ought not to apply split multiplier in routine course
and should apply multiplier as per decision of the Hon'ble
Supreme Court in Sarala Varma case.
SCCH 09 26 MVCs,2455/18 to 2458/18
36. With regard to the loss of future prospectus is
concern, the Apex court in the earlier Judgment reported
in 2013 ACJ 1403 (Rajesh & Ors Vs Rajbir Singh & Ors)
also taken note of the fact that, self employed persons are
also entitled for future prospectus and the said Judgment
was referred to larger bench and the Apex court in the
recent Judgment passed in 2017 ACJ 2700 SC (between
National Insurance co. ltd., V/s Pranay Sethi and
others.)
"In case the deceased was self employed
or on a fixed salary, an addition of 40% of
the established income should be the warrant
where the deceased was below the age of 40
year. An addition of 25% where the deceased
was between the age of 40 to 50 years and
10% where the deceased was between the
age of 50 to 60 years, should be regarded as
the necessary method of computation. The
established income means the income minus
the tax component"
37. Herein, this case, the deceased was aged about
57 years. Hence the Petitioners are entitled to claim 10%
of future prospectus as per above citation, due to death of
the deceased in the road traffic accident.
SCCH 09 27 MVCs,2455/18 to 2458/18
38. It is pertinent to note that, the Petitioner No.1
is the husband and Petitioner No.2 is the minor son of the
deceased. Therefore, the Petitioner No.1 and 2 are
considered as dependant on the income of the deceased.
So, relying upon the decision reported in 2009 ACJ 1298
(Sarla Varma and others -Vs- Delhi Transport
Corporation & another), out of the salary of the
deceased 1/3rd has to be deducted towards the personal
expenses of the deceased.
Income of deceased is taken at Rs.77,181/-p.m
Addition of 10% income towards future prospectus.
Rs.77181/- + 7,718/- (10%) = Rs.84,899/-
Deduction towards personal expenses;
Rs.84,899/-(-)Rs.28,300/-(1/3rd)= Rs.56,599/-
Therefore this tribunal has taken monthly income of the
deceased at Rs.56,599/-, which comes as under:-
56,599/- x 12 x 9 = Rs. 61,12,692/-
Hence, the Petitioners are entitled for compensation of
Rs.61,12,692/- under the head loss of dependency.
39. Here the Petitioner No.1 is the wife, daughter
and son of the deceased. Hence, the Petitioners are
entitled for Rs.15,000/- each under the head loss of
love and affection. In total they Petitioners are entitled for
Rs.45,000/- under this head.
SCCH 09 28 MVCs,2455/18 to 2458/18
40. Here the Petitioner No.1 is the wife, petitioner
No.2 is the daughter and petitioner No.3 is the son of
deceased, they have lost future support of the deceased.
In this regard the Hon'ble Supreme Court of India was
held in the case of Magma General Insurance Co. ltd.,
V/s Nanu Ram @ Chuhru Ram & Ors., (Civil Appeal
No.9581/2018 (Arising out of SLP (Civil) 3192/2018)
The Motor Vehicles Act is a beneficial legislation
aimed at providing relief to the victims or their families, in
cases of genuine claims. In case where a parent has
lost their minor child, or unmarried son or daughter,
the parents are entitled to be awarded loss of consortium
under the head of Filial Consortium.
Parental consortium is awarded to children who
lose their parents in motor vehicle accidents under the Act.
A few High courts have awarded compensation on this
count. However, there was no clarity with respect to the
principles on which compensation could be awarded on
loss of Filial Consortium.
The amount of compensation to be awarded as
consortium will be governed by the Principles of
awarding compensation under "Loss of consortium"
as laid down in Pranay Sethi (Supra).
SCCH 09 29 MVCs,2455/18 to 2458/18
In the present case, we deem it appropriate to award
the father and the brother of the deceased, an
amount of Rs.15,000/- each, for loss of Filial
Consortium.
41. Hence, in the present case, the Petitioner Nos.1
to 3 are the wife, daughter and son of the deceased they
are entitled compensation for an amount of Rs.40,000/-
each under the head loss of Filial Consortium. In total
the Petitioners are entitled for amount of Rs.1,20,000/-
under this head.
42. The Petitioners claiming that, they have spent
Rs.2,00,000/- towards transportation of dead body
including funeral and obsequies ceremonies of the
deceased. But they have not produced any document in
this respect. Considering the expenses towards funeral and
obsequies ceremonies of the deceased and in view of
judgment of Hon'ble Apex Court passed in 2017 ACJ
2700 SC (between National Insurance co. ltd., V/s
Pranay Sethi and others), it is just and proper to award
Rs.15,000/- under this head.
43. Considering oral evidence coupled with
documentary evidence of Pw.1, it is just and proper to
grant compensation as follows:
SCCH 09 30 MVCs,2455/18 to 2458/18
Sl.
Particulars Amount
No.
1. Loss of dependency Rs. 61,12,692-00
2. Towards Love and affection Rs. 45,000-00
3. Towards funeral and obsequies Rs. 15,000-00
ceremonies
4. Towards loss of estate Rs. 1,20,000-00
Total Rs. 62,92,692-00
The Petitioners are entitled for total compensation of
Rs. 62,92,692/- .
Apportionment:
Petitioner No.1 50%
Petitioner No.2 25%
Petitioner No.3 25%
MVC 2456/2018:-
44. Petitioner stated that, he suffered with disability
due to accidental injuries & incurred considerable medical
and incidental expenses and prays to award compensation.
In this backdrop let us determine just & reasonable
compensation under the following heads;
45. Pain and suffering: The wound certificate,
discharge summaries, lab reports, X-rays, case sheets etc
show that the petitioner sustained injuries i.e.,
SCCH 09 31 MVCs,2455/18 to 2458/18
i) Fracture of D5-D6 with paraplegia
ii) Spine tenderness present over T4-T6 level
iii) Motor -bilateral lower limb power
iv) Sensation-complete loss below D6 DTR-knee
and ankle -absent -distal pulses present.
As per medical records injuries sustained by the
petitioner are grievous in nature. Discharge summary
(Ex.P9) of Hosmat Hospital reveals that, the petitioner
took treatment as inpatient from 13--2018 to 20-1-2018
for eight days. He was operated for D4 to D8 posterior
stabilization on 15-1-18. The patient got neurological
problems. The MRI scan reveals that bilateral edema seen
in paraspinal muscles, cervical and cranial part of the
dorsal spine. All these facts show that the petitioner
sustained injuries in the accident and taking treatment till
now on bed. Considering the nature of injuries and line of
treatment he underwent and the duration of treatment a
sum of Rs.1,00,000/- is awarded under this head.
Attendant charges, extra food and conveyance
charges: Discharge summary reveals that the petitioner
took treatment as inpatient for 8days. But till now he is on
bed due to the injuries sustained as under in RTA
v) Fracture of D5-D6 with paraplegia
SCCH 09 32 MVCs,2455/18 to 2458/18
vi) Spine tenderness present over T4-T6 level
vii) Motor -bilateral lower limb power
viii) Sensation-complete loss below D6 DTR-knee
and ankle -absent -distal pulses present.
He also took follow up treatment. During said period he
has to spent considerable amount and he is paying a sum
of Rs.15,000/-p.m. as attendant charges, who is attending
to him. The injuries sustained by the petitioner cannot be
cured by any medicine and his entire life should be spent
on bed and nutritious food. During said period he has to
spend considerable amount on his conveyance, attendant
charges and nutritious food. In this background a sum of
Rs.75,000/- including attendant charges is awarded
under this head.
46. Medical expenses: Petitioner stated that, he
has spent considerable amount towards medical expenses.
To demonstrate said fact he relied on the medical bills at
Ex.P.12 to Ex.P.202 for Rs.6,38,354.64 for the period from
16-1-2018 to 28-5-2019. Though the petitioner was
subjected to cross-examination, but nothing is elicited
which creates doubt regarding the genuineness of medical
bills. Under these circumstances the petitioner is entitled
for Rs.6,38,354/- towards medical expenses.
SCCH 09 33 MVCs,2455/18 to 2458/18
47. Loss of earning during laid up period:
Petitioner stated that, he was aged 23 years and keeping
good health and working as Field Executive at PAMAC
agency and earning Rs.12,000/- along with other
allowances and incentives. To prove his age, he has
produced Adhaar card at Ex.P.254, which reveal his date
of birth as 1994. This accident took place on 13-1-2018.
Hence, it is taken as 24years as on the date of accident.
To prove his avocation and income, he has not produced
any documents. In the absence of proof of income of the
petitioner, his income is taken as Rs.8,000/- per month
notionally as the accident took place in the year 2018.
Considering the nature of spine-tenderness present over
T4-T6 level Motor bilaterlal lower limb power 0/5.
Sensation-complete loss below D6 DTR-knee and ankle
absent. Distal pulses present and the line of treatment, it
can be said that the petitioner is still under treatment and
he is on bed. He appointed an assistant to take care of him
by paying Rs.25,000/-p.m. Therefore, during this laid up
period he lost the income. Hence a sum of Rs.88,000/- is
awarded under the said head for 11 months.
48. Loss of future income due to permanent
disability: Petitioner sustained injuries stated supra. He
took treatment as inpatient for 8days at Hosmat hospital.
SCCH 09 34 MVCs,2455/18 to 2458/18
The petitioner sustained spine-tenderness present over
T4-T6 level Motor bilateral lower limb power 0/5.
Sensation-complete loss below D6 DTR-knee and ankle
absent. Distal pulses present He took treatment from 13-
1-2018 at Hosmat hospital and discharged on 20-1-2018.
49. Dr.N.C.Prakash, working as Neuro & Spine
Surgeon at Hosmat hospital, Bengaluru is examined as
PW-2. He deposed that on 13-1-2018 the petitioner came
to their hospital due to RTA. He has personally treated the
patient for the following injuries:-
ix) Fracture of D5-D6 with paraplegia
x) Spine tenderness present over T4-T6 level
xi) Motor -bilateral lower limb power
xii) Sensation-complete loss below D6 DTR-knee
and ankle -absent -distal pulses present.
As per medical records injuries sustained by the
petitioner are grievous in nature. Discharge summary
(Ex.P9) of Hosmat Hospital reveals that, the petitioner
took treatment as inpatient from 13--2018 to 20-1-2018
for eight days. He was operated for D4 to D8 posterior
stabilization on 15-1-18. The patient got neurological
problems due to the injuries sustained by him in RTA. Due
to the injuries, petitioner has got neurological problems.
SCCH 09 35 MVCs,2455/18 to 2458/18
He cannot squat, walk and he is unable to do his day-to-
day activities without any assistance due to paraplegia,
cannot attend his nature call without assistance. His bowel
bladder control is inadequate. He is having whole body
dishonour of cheques at 65%.
50. PW-2 was cross examined by learned counsel for
the respondents that he deposed petitioner took treatment
at NRDK hospital and then came to Bengaluru for better
treatment at Hosmat hospital on 13-1-2018. PW-2
deposed that the petitioner while taking treatment as
inpatient he was giving physiotherapy treatment. PW-2
admits that the petitioner not sustained directly injury to
the bowel bladder, but due to nerves problem he is
suffering from bowel bladder difficulties. He was operated
for backbone, they have united and he is giving only
physiotherapy treatment. He denied that the petitioner can
walk with the help of medical equipments. PW-2 deposes
that the petitioner cannot move his leg independently. He
denied that the petitioner can walk with the help of wheel
chair and can do his day today activities. He is suffering
from permanent neurological problems. He assessed his
disability on 3-8-2019 by examining him personally.
SCCH 09 36 MVCs,2455/18 to 2458/18
51. sS.N.Rajashekara, Physiotherapist Focus
Diagnostic Centre , Bengaluru examined as PW-3 . He
deposed that he examined the petitioner Srikanth aged
bout 23years on 12-3-2018 for sustaining of injuries in the
RTA. He has taken treatment at Hosmat Hospital,
Bengaluru. As per the advice of doctor Prakash-Neruo &
spine Surgeon, he treated him under his supervision and
till today he is undergoing physiotherapy.
52. PW-3 cross examined by the learned counsel for
the respondents, wherein he deposed that the petitioner is
doing physiotherapy treatment at his home, but the
possibilities of petitioner recovering from the injuries by
doing physiotherapy is less. PW-3 deposes that he himself
going to the place of petitioner for physiotherapy
treatment. He denied that he is deposing falsely before the
court without giving him physiotherapy treatment
continuously. PW-3 deposes that the stimulation should be
done by them and the petitioner cannot do tens but he can
do the physiotherapy. He denied that the petitioner was
not in need of continuous physiotherapy treatment.
53. It is worth to note that the Pw.2&3 are the
treated Doctors. They examined the petitioner to assess
the disability. PW-2 assessed the disability on clinical and
SCCH 09 37 MVCs,2455/18 to 2458/18
radiological examination of petitioner. It is well known that
the loss of earning capacity is to be determined basing
upon the permanent physical impairment. Petitioner has
not convincingly established his avocation. The petitioner
stated that he is working as Field Executive at PAMAC
agency and earning Rs.12,000/- along with other
allowances and incentives. But he has not produced his
salary slips or examined his employer before the court.
PW-2 assessed whole body disability at 65%. Petitioner
adduced through Court Commissioner and withstood the
cross-examination. Considering the nature of injuries i.e.,
Fracture of D5-D6 with paraplegia, Spine tenderness
present over T4-T6 level, Motor -bilateral lower limb
power, Sensation-complete loss below D6 DTR-knee
and ankle -absent -distal pulses present it can be
said that the whole body disability assessed at 65% is
taken into consideration. Pw.1 was aged 24 years at the
time of accident. As per Sarla Verma's case, the
appropriate multiplier applicable is 18. In this background
the petitioner is entitled for Rs.11,23,200/-
(Rs.8,000x12x18x65/100) for loss of future income due to
permanent physical disability.
54. Loss of future amenities and happiness:
Petitioner suffered fracture injuries as stated supra. He
SCCH 09 38 MVCs,2455/18 to 2458/18
was aged 24 years at the time of accident. The nature of
injuries show that the petitioner finds difficulty in doing
day-to-day activities as he might have suffered lot of pain,
loss of amenities and comforts in life. The petitioner still
taking physiotherapy treatment and is on bed without
moving. He cannot do his day today activities of his own.
He has appointed an attendant by paying Rs.15,000/-p.m.
Therefore, considering the age, nature of injuries and
percentage of disability Rs.90,000/- is awarded under
this head.
55. Future medical expenses: The evidence
of PW.2 shows that, the petitioner still is on bed and
taking physiotherapy treatment. He appointed one
assistant to help him in day-today activities by paying
Rs.15,000/-p.m. In this regard the Petitioner has not
produced any documents and also the doctor has not
deposed about expenditure of future medication of the
Petitioner. Therefore, considering the nature of injuries
sustained by the Petitioner and evidence of the doctor, this
Tribunal has awarded reasonable compensation of
Rs.75,000/- under the head Future medical expenses.
(Which does not carry any interest).
SCCH 09 39 MVCs,2455/18 to 2458/18
56. Considering the above facts and circumstances of
the case and for the above reason, I am of the opinion
that, the petitioner is entitled for total compensation of
Rs. 21,89,554/-under the following conventional heads:
Compensation heads Compensation
amount
1. Towards loss of future earnings Rs. 11,23,200/-
2. Towards pain and sufferings Rs. 1,00,000/-
3. Towards loss of amenities Rs. 90,000/-
4. Towards attendant, nourishment Rs. 75,000/-
and conveyance charges
5. Towards medical expenses Rs. 6,38,354/-
6. Towards loss of income during laid Rs. 88,000/-
up period and rest period
7. Towards future medical expenses Rs. 75,000/-
Total
Rs.21,89,554/-
ISSUE-2 IN MVC 2457/18:
57. In the instant case, the petitioner claimed physical
disability at 14% due to injuries sustained by her in the
alleged accident. The petitioner has not been treated by
Dr.Krishan Prasad-Orthopedic Surgeon. In his
examination-in-chief, he has deposed that, the petitioner
came to Hosmat hospital on 3-8-2019 for assessment of
disability. Petitioner gave alleged history of RTA occurred
SCCH 09 40 MVCs,2455/18 to 2458/18
on 13-1-2018 and sustaining of fracture of right forearm
both bones. As per discharge summary at Ex.P.11
discloses that the petitioner was treated at Hosmat
hospital with closed both bone mid-shaft fracture right
forearm. ORIF with 7 holed DCP for right radius. ORIF with
6 holed DCP for right ulna was done on 14-1-2018. She
was discharged on 20-1-2018 with an advice to take follow
up treatment.
58. The petitioner now complains pain and stiffness
of right elbow and right wrist, difficulty in doing, overhead
activities, changing clothes, buttons, straps, writing,
typing and lifting weights. She says that the grip on the
right hand has reduced. X-ray shows she need implant
removal right forearm which will cost Rs.65,000/-.
59. In the cross-examination, PW-2 deposed that the
fractures are united. He denied that without any support
she can use her hands. He admits that after 18months of
injury, he has assessed the disability of petitioner. He
denied that presently the injured is not suffering from any
kind of difficulties as narrated in para-7 of the affidavit. He
denied that he assessed the disability at 14% on higher
side.
60. On careful perusal of the evidence of the
Doctor, as per his opinion, there was closed both bone
SCCH 09 41 MVCs,2455/18 to 2458/18
midshaft fracture right forearm which is grievous in
nature. He assessed disability as per Central Government
Notification dated 5.01.2018. He assessed total whole
body physical disability 14% and the petitioner needs
another surgery, the approximate cost of the surgery is
around Rs.65,000/-.
61. This witness cross examined by the counsel for
the respondents wherein it is elicited that he assessed
the disability of petitioner after 18months of accident. The
fractures are united, but implants are in situ. He denied
that, after removal of implants, the exact disability can be
assessed and he assessed the disability prematurely. He
advised the petitioner to take follow up treatment and
physiotherapy. He admits that he has not produced the
notification issued by the Central Government and not
given certificate to the petitioner for disability.
62. On perusal of the evidence of doctor, it clearly
establishes the fact that the petitioner was sustained
fracture of both bones of right forearm, ORIF with 7 holed
DCP for right radius. ORIF with 6 holed DCP for right ulan
was done on 14-1-2018. No doubt, the said fracture is
united and P.W.2 also admits that the petitioner has no
functional disability. Hence, if 10% is taken into
consideration as permanent disability to the whole body, it
SCCH 09 42 MVCs,2455/18 to 2458/18
would meet the ends of justice. The petitioner was
working for I&A Software Consulting Pvt. Ltd., and
earning Rs.35,000/- per month, due to the accidental
injuries still she is under treatment could not resume
work till the date. Now is unable to walk for long
distances, she cannot lift any weight and other problems.
63. In the instant case the petitioner has claimed
compensation of Rs.50,00,000/-. The petitioner averred in
her petition that she is Software Engineer and earning
Rs.35,000/- per month. She is aged about 26 years. In
order to substantiate the same, the petitioner has
produced her Salary slip at Ex.p.6. ID card at Ex.P.8 and
Adhaar card at Ex.P.9, wherein her date of birth is shown
as 1991. Hence the petitioner was aged about 27years as
on the date of accident. The petitioner has produced
documents to show her income at Ex.P.6-pay slip. She was
produced Ex.P.6 for the month of January 2018. The
accident took place on 12-1-2018. Ex.P.6 shows she was
drawn gross salary of Rs.35,000/- p.m. On the basis of
the entire evidence adduced by the petitioner as well as
doctor, if the permanent partial disability is considered at
10% to the whole body it would meet the ends of justice.
64. The petitioner is aged as 27 years as on the date
of the petition as per adhaar card at Ex.P.9. Hence the
SCCH 09 43 MVCs,2455/18 to 2458/18
court is considered the same for computing the
compensation amount, on the basis of his age at the time
of the alleged accident and his earning. The applicable
multiplier as per the Sarala Verma vs. Delhi Transport
Corporation is 17 for the age group of 26 to 30
years. If disability is taken, at 10%, the income is taken
at Rs.35,000/-x 12x 17x 10/100 = Rs.7,14,000/-.
Considering the above facts and for the above reason, I
deem it just and reasonable to grant for compensation
of Rs.7,14,000/- under the head of loss of future
earnings.
65. The petitioner due to closed both bone midshaft
fracture right forearm . She under went ORIF with 7 holed
DCP for right radius. ORIF with 6 holed DCP for right ulan
was done on 14-1-2018. She was discharged on 20-1-
2018 with an advice to take follow up treatment. She took
treatment at Hostmat hospital from 13-1-2018 to 20-1-
2018 for eight days. She suffered sever pain due to
fracture injuries sustained in the RTA. Hence, if for pain
and suffering Rs.40,000/- is awarded it would meet the
ends of justice.
66. The petitioner has produced Medical bills as per
Ex.P7 for Rs.20,103/-. There is no dispute with regard to
the medical bills of petitioner from the other side.
SCCH 09 44 MVCs,2455/18 to 2458/18
Therefore, the petitioner is entitled for total medical
expenses of Rs.20,103/-.
67. The doctor has deposed in his evidence that the
petitioner was admitted as an inpatient from 13-1-2018
to 20-1-2018 for 8 days. The doctor advised the petitioner
to take follow up treatment and over a time, the fracture
healed. Hence, loss of income during treatment period is
taken as two months i.e., two months taken into
consideration which comes to Rs.35,000/-x2=70,000.
Hence, the petitioner is entitled for Rs.70,000/- for loss
of earning during treatment period/laid up period.
68. As the petitioner had been in the hospital as an
inpatient for the period of 8days, as evident from Ex.P.11
-discharge summary, she might have spent some amount
towards food, nourishment, conveyance charges and
attendant charges when he was in the hospital as in
patient. Therefore, it is just and reasonable to award a
sum of Rs.45,000/- under the said heads.
69. The petitioner has to live rest of her life along
with the said disability of her day to day comforts. Hence,
there is a loss of future amenities and if compensation of
Rs.50,000/- is awarded it would meet the ends of justice.
70. In the instant case, the doctor has opined that
the petitioner is needed Rs.65,000/- for another surgery.
SCCH 09 45 MVCs,2455/18 to 2458/18
But except oral say of the doctor no material such as
estimate or quotation has been produced before this court.
Therefore, it is just and reasonable to award a sum of
Rs.30,000/- for future surgery which would meet the
ends of justice.
71. Now the total compensation awarded stands as
follows:-
1. Loss of future income Rs. 7,14,000-00
2. Pain and suffering Rs. 40,000-00
3. Medical expenses Rs. 20,103-00
4. Loss of income during laidup Rs.
period 70,000-00
5. Food and nourishment,
conveyance &attendant Rs. 45,000.00
charges
6. Loss of future amenity Rs. 50,000.00
7. Future medical expenses Rs. 30,000.00
Total Rs. 9,69,103,-00
In all, the petitioner is entitled for total
compensation of Rs. 9,69,103/- awarded supra, it would
meet the ends of justice. However, Rs.30,000/-
awarded for future medical expenses for surgery
does not carry any interest.
ISSUE-2 IN MVC 2458/18:
SCCH 09 46 MVCs,2455/18 to 2458/18
72. In the instant case, the petitioner claimed physical
disability at 23% due to injuries sustained by her in the
alleged accident. She sustained blunt injury chest,
hypertension and L1compression fracture. The petitioner
has not been treated by Dr.Krishan Prasad-Orthopedic
Surgeon. In his examination-in-chief, he has deposed that,
the petitioner came to Hosmat hospital on 3-8-2019 for
assessment of disability. Petitioner gave alleged history of
RTA occurred on 13-1-2018 and sustaining of fracture of
L1compression fracture blunt injury chest. As per
discharge summary at Ex.P.7 discloses that the petitioner
was treated at Hosmat hospital with conservative
management. She was discharged on 20-1-2018 with an
advice to take follow up treatment.
73. The petitioner now complains pain and stiffness
of lower back with difficulty inside and forward bending,
unable to bend, kneel, squat or sit down, difficulty in
cooking and walking fast and gets severe pain on bumpy
road journeys.
74. In the cross-examination, PW-2 deposed that the
L1 fracture is united more than 50% compression. To
reduce the stiffness and movements, physiotherapy is
must and they advised the patient to take physiotherapy
treatment. He admits that she was in non surgical
SCCH 09 47 MVCs,2455/18 to 2458/18
treatment. He denied that the injured is not suffering any
kind of difficulties as narrated in para-8 of the affidavit. He
denied that he assessed the disability at 23% on higher
side to the whole body.
75. On careful perusal of the evidence of the
Doctor, as per his opinion, there was blunt injury chest,
hypertension and L1compression fracture which is grievous
in nature. Therefore, the petitioner was treated with non
surgical treatment and discharged on 20-1-2018. He
assessed disability as per Central Government Notification
dated 5.01.2018. He assessed whole body disability at
23% .
76. This witness cross examined by the counsel for
the respondents , wherein it is elicited that he assessed
the disability of petitioner after 18 months of accident. He
admits that he has not produced the notification issued by
the Central Government and not given certificate to the
petitioner for disability.
77. On perusal of the evidence of doctor, it clearly
establishes the fact that the petitioner sustained blunt
injury chest, hypertension and L1compression fracture.
She was treated with non surgical management. Hence,
if 10% is taken into consideration as permanent disability
to the whole body, it would meet the ends of justice.
SCCH 09 48 MVCs,2455/18 to 2458/18
78. In the instant case the petitioner has claimed
compensation of Rs.10,00,000/-. The petitioner averred in
her petition that she is house wife. She is aged about
49years. In order to substantiate the same, the petitioner
has produced Adhaar card at Ex.P.10, wherein her date of
birth is shown as 1969. Hence the petitioner was aged
about 49years as on the date of accident. The petitioner is
a house wife. She does all the work for her family, which
cannot be compensated with any means. Therefore, this
court can take judicial notice for the income of the
petitioner under the NEREGA scheme introduced by
Central Government as notional income of Rs.8,000/-
p.m., it would meet the ends of justice. No doubt, the
doctor has mentioned whole body disability at 23%. On
the basis of the entire evidence adduced by the petitioner
as well as doctor, if the permanent partial disability is
considered at 10% to the whole body it would meet the
ends of justice.
77. The petitioner is aged as 49 years as on the
date of the petition as per adhaar card at Ex.P.10. Hence
the court is considered the same for computing the
compensation amount, on the basis of his age at the time
of the alleged accident and his earning. The applicable
multiplier as per the Sarala Verma vs. Delhi Transport
SCCH 09 49 MVCs,2455/18 to 2458/18
Corporation is 13 for the age group of 46 to 50
years. If disability is taken, at 10%, the income is taken
at Rs.8,000/-x 12x 13x 10/100 = Rs.1,24,800/-.
Considering the above facts and for the above reason, I
deem it just and reasonable to grant for compensation
of Rs.1,24,800/- under the head of loss of future
earnings.
78. The petitioner due to blunt injury chest,
hypertension and L1compression fracture. She treated non
surgical management. She was inpatient at Hosmat
hospital from 13-1-2018 to 20-1-2018 She took follow up
treatment. She suffered sever pain due to fracture
injuries sustained in the RTA. Hence, if for pain and
suffering Rs.30,000/- is awarded it would meet the ends
of justice.
79. The petitioner has produced Medical bills as per
Ex.P8 for Rs.8,502/-. There is no dispute with regard to
the medical bills of petitioner from the other side.
Therefore, the petitioner is entitled for total medical
expenses of Rs.8,502/-.
80. The doctor has deposed in his evidence that the
petitioner was admitted as an inpatient from 13-1-2018
to 20-1-2018 for 8 days. The doctor advised the petitioner
to take follow up treatment and over a time, the
SCCH 09 50 MVCs,2455/18 to 2458/18
compression healed. Hence, loss of income during
treatment period is taken as two months i.e., two months
taken into consideration which comes to Rs.8,000/-
x2=16,000. Hence, the petitioner is entitled for
Rs.16,000/- for loss of earning during treatment
period/laid up period.
81. As the petitioner had been in the hospital as an
inpatient for the period of 8days, as evident from Ex.P.7 -
discharge summary, she might have spent some amount
towards food, nourishment, conveyance charges and
attendant charges when he was in the hospital as in
patient. Therefore, it is just and reasonable to award a
sum of Rs.25,000/- under the said heads.
82. The petitioner has to live rest of her life along
with the said disability of her day to day comforts. Hence,
there is a loss of future amenities and if compensation of
Rs.40,000/- is awarded it would meet the ends of justice.
83. In the instant case, the petitioner not under
surgery. Therefore, no future medical expenses are
awarded.
84. Now the total compensation awarded stands as
follows:-
1. Loss of future income Rs. 1,24,800-00
2. Pain and suffering Rs. 30,000-00
SCCH 09 51 MVCs,2455/18 to 2458/18
3. Medical expenses Rs. 8,502-00
4. Loss of income during laid Rs.
up period 16,000-00
5. Food and nourishment,
conveyance &attendant Rs. 25,000.00
charges
6. Loss of future amenity Rs. 40,000.00
Total Rs. 2,44,302,-00
In all, the petitioner is entitled for total
compensation of Rs. 2,44,302/- awarded supra it would
meet the ends of justice.
85. On perusal of the evidence of RW1 in all the
cases and the documents at Ex.R.1 to Ex.R.5 and the
admission of PW1, it reveals that the R2 had made
exgretia payment of Rs.62,707/- in respect of MVC
No.2455/2018,Rs.2,92,570/- in MVC No.2456/2018,
Rs.85,936/- in MVC No.2457/2018 and Rs.62,707/-
in MVC No.2458/2018. In this regard they also
relied decision rendered by the Hon'ble High Court of
Karnataka in MFA No.2167/2011 clubbed with
2168/2011 in the case of Cholamandalam General
Insurance Company Ltd., V/s Kumari Baby
Pranamya and others. It is held that the exgretia
payment made the by the KSRTC will have to pay
out of awarded compensation. Hence, the petitioners
in all the cases were paid exgretia that has to be
SCCH 09 52 MVCs,2455/18 to 2458/18
refunded to the respondent No.1. In MVC
No.2455/2018 has been awarded compensation of
Rs.62,92,692/- out of which Rs.62,707/- will have
to be paid to the KSRTC and the petitioners are
entitled only for Rs.62,29,985/-.The petitioner in
MVC No.2456/2018 has been awarded compensation
of Rs.21,81,554/- out of which Rs.2,92,570/- will
have to be paid to the KSRTC and the petitioner is
entitled only for Rs.18,96,984/-. The petitioner in
MVC No.2457/2018 has been awarded compensation
of Rs.9,69,103/- out of which Rs.85,936/- will have
paid to the KSRTC and the petitioner is entitled only
for Rs.8,83,167/-. The petitioner in MVC
No.2458/2018 has been awarded compensation of
Rs.2,44,302/- out of which Rs.62,707/- will have
paid to the KSRTC and the petitioners would be
entitled only for Rs.1,81,595/-.
Liability:-
86. It is the admitted fact that Respondent No.1&2
are Manager and Managing Director of KSRT bus bearing
No.KA01/F.8513 which involved in the accident and
Respondent No.3 is the insurer of the alleged KSRTC bus
The insurance Policy was in force as on the date of
accident. Hence, the Respondent No.1&2 being the owner
SCCH 09 53 MVCs,2455/18 to 2458/18
of the vehicle is vicariously liable for the consequences of
the accident. However, the insurance policy is valid which
covers the alleged accident and respondent No.3 is liable
to pay the compensation on behalf of the respondent No.1
& 2 for the wrongful act committed by the driver of
respondent No.1&2. Hence, the respondent No.3 is liable
to indemnify the insured in this case. Respondent No.3
being the insurer of the KSRTC bus is liable to pay the
compensation and deposit the same within two months
from the date of this order with interest at 6% per
annum from the date of petitions till realization, it would
meet the ends of justice.
87. After deposit of award amount by the respondent
No.3, this Tribunal is apportioned the compensation
amount in the ratio of 50% to the petitioner No.1, 25% to
the petitioner No.2 and 25% to the petitioner No.3
respectively in MVC No.2455/2018 would meet the ends of
justice and equity. Accordingly, Issue No.2 is answered
partly in the Affirmative in all the cases.
Issue-3 in all cases:
88. By virtue of above findings, Tribunal proceeds to
pass the following;
SCCH 09 54 MVCs,2455/18 to 2458/18
ORDER
Petitions in MVC Nos.2455/18 to 2458/18 are allowed in part with costs.
Petitioner in MVC.2455/18 are entitled for compensation of Rs.62,29,985/- (Rs.sixty two lakhs twenty nine thousand nine hundred eighty five Only) with interest @ 6% per annum from the date of petition till its realization.
Petitioner in MVC.2456/18 is entitled for compensation of Rs.18,96,984/- (Rupees eighteen lakhs ninety six thousand nine hundred eighty four Only) with interest @ 6% per annum from the date of petition till its realization.
Petitioner in MVC 2457/18 is entitled for compensation of Rs.8,83,167/- (Rupees eight lakhs eighty three thousand one hundred sixty seven Only) with interest @ 6% per annum from the date of petition till its realization.
Petitioner in MVC 2458/18 is entitled for compensation of Rs.1,81,595/- (Rupees one lakh eighty one thousand five hundred ninety five Only) with interest @ 6% per annum from the date of petition till its realization. SCCH 09 55 MVCs,2455/18 to 2458/18 The respondent No.3 being the insurer is liable to pay compensation to the petitioners with exgretia amount ordered below shall be paid to respondent No.2 and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
In MVC 2455/18 after deposit of award amount, 50% of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of Petitioner No.1to 3 for a period of three years with liberty to draw accrued interest periodically and remaining 50% released in favour of petitioner directly through E- Payment by obtaining the bank account details from the petitioner No.1 to 3.
In MVC 2456/18 after deposit of award amount, 50% of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of Petitioner for a period of three years with liberty to draw accrued interest periodically and remaining 50% released in favour of petitioner directly through E-Payment by obtaining the bank account details from the petitioner.
SCCH 09 56 MVCs,2455/18 to 2458/18 In MVC 2457/18 after deposit of award amount, 50% of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of Petitioner for a period of three years with liberty to draw accrued interest periodically and remaining 50% released in favour of petitioner directly through E-Payment by obtaining the bank account details from the petitioner.
In MVC 2458/18 after deposit of award amount, 60% of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of Petitioner for a period of three years with liberty to draw accrued interest periodically and remaining 40% released in favour of petitioner directly through E-Payment by obtaining the bank account details from the petitioner The respondent No.2 is entitled in all the cases for the payment of exgretia from respondent No.3 as under:
in MVC.2455/18- Rs.62,707/-, MVC.2456/18 Rs.2,92,570/-, MVC.2457/18 -Rs.85,936/- and in MVC.2458/18- Rs.62,707/-. The apportionment of awarded amount in MVC 2455/18 are as under:
Petitioner-1 50%
Petitioner-2 25%
Petitioner-3 25%
Advocate's fee is fixed at Rs.1,000/- each case. Draw an award accordingly in all the cases. SCCH 09 57 MVCs,2455/18 to 2458/18 The original of this judgment shall be kept in MVC 2455/18 and the copy thereof shall be kept in MVC 2456/18 to MVC.2458/18.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 29th day of February 2020) (Abdulkhadar) MEMBER, MACT, Bengaluru.
ANNEXURE LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONERS:
In MVC No. 2455/2018 Pw.1: Sudha Pw.2: N. Ramesh In MVC No. 2456/2018 PW-1: Srikanth Pw-2: Dr. N.C.Prakash PW-3: S.N. Rajashekara In MVC No. 2457/2018 PW-1 : Madhushree PW-2: Dr.Krishna Prasad SCCH 09 58 MVCs,2455/18 to 2458/18 In MVC No. 2458/2018 PW-1: Sudha PW-2: Dr. Krishna Prasad DOCUMENTS: In MVC No. 2455/2018 Ex.P.1 FIR & Complaint Ex.P.2 Spot mahazar Ex.P.3 Sketch Ex.P.4 Charge Sheet Ex.P.5 IMV report Ex.P.6 P M report Ex.P.7 Death Certificate Ex.P.8 Salary Certificate Ex.P.9 ID card issued by RVDI Ex.P.10 C/C of Aadhaar Card Ex.P.11 ID Card Ex.P.12 Authorization letter In MVC No. 2456/2018 Ex.P.1 FIR Ex.P.2 Complaint Ex.P.3 Charge Sheet Ex.P.4 Panchanama Ex.P.5 Sketch Ex.P.6 Spot Mahazar Ex.P.7 Accident report Ex.P.8 Wound certificate SCCH 09 59 MVCs,2455/18 to 2458/18 Ex.P.9 Discharge Summary Ex.P.10 to P.202 Medical bills Ex.P.203 to P.253 Medical prescription and records Ex.P.256 to P.257 MRI Scan and X-ray Ex.P258 Wound certificate Ex.P259 Out patient case sheet Ex.P260 Inpatient case sheet Ex.P261 Authorization letter In MVC No. 2557/2018 Ex.P.1 FIR & Complaint Ex.P.2 Spot mahazar Ex.P.3 Sketch Ex.P.4 Charge Sheet Ex.P.5 IMV report Ex.P.6 Salary certificate Ex.P.7 34 medical bills Ex.P.8 C/C of I D card Ex.P.9 C/C of Aadhaar Card Ex.P.10 C/C of Pan Card Ex.P.11 Discharge summary Ex.P.12 Medical Bills Ex.P13&14 Emport and X-ray report Ex.P15&16 2 Out Patient files Ex.P17 Inpatient file In MVC No.2458/2018 Ex.P.1 FIR & Complaint SCCH 09 60 MVCs,2455/18 to 2458/18 Ex.P.2 Spot mahazar Ex.P.3 Sketch Ex.P.4 IMV report Ex.P.5 Wound certificate Ex.P.6 Charge sheet Ex.P.7 Discharge summary Ex.P.8 Medical Bills Ex.P.9 4 MRI and City scan report Ex.P.10 C/C of Aadhaar Card Ex.P.11&12 2 Out patient files Ex.P.13 Inpatient file Ex.P.14 X-ray with Clinical report FOR RESPONDENTS:
(in MVC. 2455/18 to 2458/2018) RW-1 B.S. Ushamani DOCUMENTS:
In MVC No. 2455/2018 to 2458/2018 Ex.R.1 Authorization letter Ex.R.2 RC copy Ex.R.3 Insurance policy Ex.R.4 DL copy Ex.R.5 Ambulance Bills (Abdulkhadar) MEMBER, MACT, Bengaluru.