Bangalore District Court
Sri.Bhyrappa vs Managing Director on 27 April, 2016
fBEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 27th DAY OF APRIL, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.3549/2014
Petitioner/s Sri.Bhyrappa
S/o Kariya Naik,
Aged about 56 years
No.599, 707, S.F.S.
Yalahanka, 4th Phase
Yalahanka New Town
Bengaluru
Since the injured is not
in a position to speak
and give evidence, hence
by his next fried wife
Smt. Radha, B is represented
(By Pleader - Sri.D.Dhananjaya.)
V/s
Respondent/s Managing Director
KSRTC Division
Shanthinagar, Double Road
Bengaluru
The bus belonging to
Mangaluru (Puttur) Depot,
D.K.
(Bus bearing No.KA-19-F-2751)
(By Pleader - Sri.Mahadevaiah.)
(SCCH-15) 2 MVC.3549/2015
JUDGMENT
Petitioner has filed the present petition through his wife natural friend under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. The brief case of petitioner is that on 03.10.2013 at about 7:00 p.m., he was standing on the side of the road i.e. footpath in front of Aswani Lodge, Puttur. At that time, the KSRTC bus bearing registration No.KA-19 F-2751 came with high speed in a rash and negligent manner from Sulya towards Puttur on Maani - Mysuru State high way and dashed to him.
b) Because of which, he fell down and suffered severe injuries. Accident took place solely due to negligent driving of the KSRTC bus driver. Therefore, respondent being the RC owner and internal insurer of the KSRTC bus is liable to pay the compensation. Hence, prayed to allow the petition as sought for.
3. In response to due service of summons, respondent put its appearance through its counsel and (SCCH-15) 3 MVC.3549/2015 filed its statement of objections denying the petition averments. However, it has specifically contended that the bus was proceeding with care and caution observing all traffic rules and regulations.
b) When it came near Ashwini hotel bypass road i.e.10 meters from circle he saw a person i.e. petitioner moving holding mobile and talking in the mobile on the main road without observing traffic and vehicular movements and also not cared horn of the bus.
c) Since, the bus driver has observed the same, he applied sudden brake to avoid the accident and took the bus to right side of the road. Because of which, there was tyre mark on the road. Despite of that, the bus dashed against the indicator of the bus and fell down on the road.
d) Therefore, accident took place solely due to the rash and negligent act of the petitioner and there was also no zebra cross at the accident spot. Hence, there was no negligence on the part of the bus driver. Therefore, prayed to dismiss the petition against it with costs.
(SCCH-15) 4 MVC.3549/2015
4. On the above said pleadings of the parties, this Tribunal has framed the following issues.
1. Whether petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 03.10.2013 at about 7:00 p.m, infront of Aswani Lodge, Darbe, Kasaba Village, Puttur Taluk, Dakshina Kannada District due to the rash and negligent driving of the KSRTC bus bearing registration No.KA-19 F-2751?
2. Whether petitioner is entitled for compensation? If so, what amount and from whom?
3. What order or award?
5. To prove the above said issues and to substantiate their respective contentions, petitioner got examined the medical records officer of Unity Health Complex to cause production of inpatient file as PW-1; the medical records assistant of Father Muller Medical College and hospital to cause production of medical records as PW-2;
the medical records assistant of Sri.S.D.M.Ayurveda hospital, Udupi to cause production of inpatient file as PW-3; the medical record technician of M.S.Ramaiah (SCCH-15) 5 MVC.3549/2015 hospital, Bengaluru to cause production of inpatient file and outpatient file as PW-4;
the doctor who has treated and assessed the disability as PW-5; his next friend/wife as PW-6; the alleged eyewitness and inmate of the car as examined as PW-7; his alleged attender as PW-8 and the District Registrar i.e. the authorized person of his employer is examined as PW-9;
the Estate Officer at Father Muller Medical College hospital, Mengaluru to cause production of inpatient bill as PW-10 and office assistant of M.S.Ramaiah hospital to cause production of inpatient detailed bill as PW-11. Totally exhibited 68 documents and closed his side.
b) Per contra, respondent got examined its driver as RW-1. Got exhibited no document and closed its side.
c) Heard arguments of both the sides on merits of the case. In support of his oral evidence, counsel for petitioner has filed memo along with xerox copies of decisions reported in;
1.2014 ACJ 1342, 2.2014 ACJ 924, 3.2004(3) KLJ 288, (SCCH-15) 6 MVC.3549/2015 4.2014 AIR SCW 2535 and
5.AIR 2011 SC 1785.
d) Per contra counsel for respondent has filed memo along with xerox copy of the decisions reported in ILR 2004 KAR 1104.
e) This Tribunal has gone through the above reported decisions and perused the record.
6. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.42,88,000/- together with interest at 9% p.a. on Rs.31,00,000/- (excluding future medical expenses and permanent attendant charges) from the date of petition till the realization of the compensation in its entirety from respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
7. ISSUE No.1:- If the above observed pleadings of the parties are taken note off, there is no dispute between the parties with regard to the alleged accident; the date, (SCCH-15) 7 MVC.3549/2015 time and place of accident and the fact that at the time of accident, petitioner was the pedestrian. So, the only point in dispute with regard to the present issue between the parties is the rash and negligent aspect.
8. It is the case of the petitioners that at the time of accident, KSRTC bus driver came with high speed in a rash and negligent manner and dashed to him. On the other hand, defence raised on behalf of respondent is that at the time of accident, petitioner was moving on the road without observing vehicular movement that too talking in the mobile unmindfully.
9. To establish that as observed above, petitioner who is represented through his next friend i.e. his wife got examined his wife as PW-6 who has filed her affidavit evidence wherein she has reiterated the petition averments and she has specifically deposed that accident took place because of the negligent driving of the KSRTC bus.
10. In her cross-examination her chief evidence is denied by way of suggestions which are in turn denied by her. The defence by respondent also put forth to PW-6 by (SCCH-15) 8 MVC.3549/2015 way of suggestions which are also in turn denied by her. But it is important to note that it is also in her cross- examination that she did not see the accident personally. So, whatever she has deposed about the accident and rash and negligent aspect is nothing but hearsay evidence.
11. However, in support of their case, petitioner also got examined alleged eyewitness by name Narasimha Murthy as PW-7 who has filed his affidavit evidence wherein he has stated that on 03.10.2013 at about 7:00 p.m. petitioner was standing on the left side of footpath in front of Ashwini Lodge and at that time a KSRTC bus came in a rash and negligent manner and dashed to the petitioner unmindfully, because of which, accident took place. In his cross-examination, his chief evidence is denied by way of suggestions which are in turn denied by him.
12. However, in his cross-examination it is elicited that he knows the petitioner since about 10 years and he also accompanied petitioner to Dharmasthala; they went in a hired car; petitioner was standing nearby (SCCH-15) 9 MVC.3549/2015 Ashwini Lodge and at the time of accident, he was on his/petitioner's backside.
13. In the subsequent stage, he has also deposed that he was at a distance of 25 to 30 feet from the accident spot and also on footpath; the distance between the footpath and adjacent thar road edge was around two feet.
14. He has admitted the suggestion that there was a circle after the accident spot. At this stage, he voluntarily deposed that it was a little far away from the spot and the width of the road at accident spot is around 30 feet.
15. He has also admitted the suggestion that the road at accident spot is bypass road and the bus was proceeding from Sullia towards Puttur and he has not suffered any injuries in the accident. So, it is not in dispute that PW-7 was with the petitioner at the time of accident and thus he is an eyewitness.
16. To establish its defence, as observed above, respondent got examined its driver as RW-1 who has filed his affidavit evidence wherein he has reiterated the (SCCH-15) 10 MVC.3549/2015 statement of objection averments of the respondent. But he has admitted the suggestion that picture and position at Ex.P-15, the spot sketch are true and correct.
17. At this stage, he has voluntarily deposed that petitioner who was walking and talking in mobile proceeded towards right side, he tried his level best but accident took place because of the negligence of petitioner. However, he has admitted the suggestion that he is charge sheeted for the present accident but he has voluntarily deposed that it is wrong charge sheet.
18. If the oral evidence on record is taken into consideration, both PWs-6 and 7 particularly PW-7 and RW-1 stood on their respective evidence both during their chief and cross-examination. Hence, the oral evidence let in by the respective parties remained nothing but an oath against oath. Therefore, this Tribunal has to consider documentary evidence on record.
(SCCH-15) 11 MVC.3549/2015
19. In support of his case, petitioner got produced the police papers i.e. the true copies of complaint, FIR, spot mahazar, spot sketch, MV report and charge sheet at respectively at Ex.P-12 to 17 which shows that initially the jurisdictional police have registered criminal case against the bus driver for the offences punishable under Sections 279 and 338 of IPC.
20. The police papers also show that after investigation, they have charge sheeted the bus driver for the offences alleged including the offence punishable under Rule 7 read with Section 177 of MV Act. There is no specific cross-examination on behalf of the respondent about police papers which are in clear consonance with the case of petitioner.
21. Moreover, there is presumption with regard to the police papers that they are prepared by the investing officers during the discharge of their official duties in investigation of a crime. Of course the said presumption is rebuttal one. But, no such rebuttal evidence is let in by the respondent.
(SCCH-15) 12 MVC.3549/2015
22. So far the injuries suffered by the petitioner in the accident absolutely there is no dispute. If the cross- examination conducted on behalf of respondent to the petitioner's witnesses are taken note off, even it is clear that even it has raised objections with regard to the nature of injuries, quantum of disability and the medical expenditure, it has not at all denied the fact of petitioner suffering injuries in the accident.
23. Moreover, to establish that apart from the oral evidence of his next friend/wife also got adduced the oral evidence of the doctors and got produced the medical records such as wound certificate, discharge summary, radiological repots, medical certificates and lab reports which are in support of his case about his suffering injuries in the present accident.
24. Therefore, petitioner with the oral evidence of PWs-1 to 10, particularly PW-7, the police papers and the medical records noted above has successfully established that the present accident is because of the negligent driving of the bus driver/RW-1 and he has suffered (SCCH-15) 13 MVC.3549/2015 injuries in the accident. Therefore, issue No.1 is answered in affirmative.
25. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 56 years; was a Senior Sub Registrar, working in Sub Registrar office, Dasanapura, Bengaluru, had salary of Rs.31,047/-.
26. To establish that petitioner with the oral evidence of his wife/next friend also produced notarised copy of PAN card at Ex.P-31 which reveals his date of birth as 20.05.1957. In the notarized copy of the ration card at Ex.P-32, his age is shown as 51 years and the date of issue of Ex.P-32 is 18.08.2009.
27. Petitioner has also got examined the District Registrar, Rajajinagar, Bengaluru, his employer as PW-9 who has produced true copy of SR of the petitioner at Ex.P-56 which contains his SSLC marks card wherein his date of birth is 20.05.1957. The date of accident is 03.10.2013. So, as per Ex.P-32 and 56, as on the date of (SCCH-15) 14 MVC.3549/2015 accident, petitioner was aged 56 years and as per Ex.P- 32, he was aged 55 years.
28. In the police papers and in the medical records, his age is shown as 56 years. There is no cross- examination by the other side about the age of petitioner. Hence, nothing is there is discard the case of petitioner about his age. Therefore, his age is accepted as 56 years for which the proper multiplier applicable is 9.
29. So far the fact that petitioner was the Senior Sub Registrar, he got produced Ex.P-30, the notarized copy of the employee ID issued by the department of Stamps and Registration.
30. In addition, in the evidence of PW-9, he got produced the documents at Ex.P-49 to 60 i.e. true copies of transfer order dated 11.05.2012; letter of PW-6/the next friend i.e. the wife of petitioner about the information of the accident; CL sanction order dated 24.10.2013; EL sanction letter dated 19.09.2014; transfer order dated 10.05.2012; joining letter; leave salary slips from October, 2013 to January, 2014; service register; attendance register from May, 2012 to October, (SCCH-15) 15 MVC.3549/2015 2013; LPC with covering letter; medical reimbursement application and the letter rejecting the above medical reimbursement application respectively.
31. In the cross-examination of PW-9, it is elicited that as on the date of accident, petitioner was working as Senior Sub Registrar, Dasanapura and was on leave. He has also deposed that petitioner has drawn the salary up to 18.01.2014 i.e. for the leave period and the salary subsequently to 18.01.2014 is under process and after sanction only, the salary if any will be disbursed.
32. The salary slips at Ex.P-55, the salary slips reveal that the gross salary as on the date of accident i.e. 03.10.2013 i.e. for the month of October, Rs.33,375/-. It is in the evidence of PW-9 that they did not deduct the income tax in the salary of the petitioner since, petitioner was taking care of his tax deductions independently.
33. If the deductions in the salary slips are taken note off, it is clear that no deduction was made towards the income tax. So, as per evidence on record, the gross monthly income of the petitioner was Rs.33,375/-. Thus, it comes to Rs.4,00,500/-.
(SCCH-15) 16 MVC.3549/2015
34. The tax exemption is up to Rs.2,00,000/-. So, the taxable income is Rs.2,00,500/- on which the petitioner is required to pay tax at 10% i.e. Rs.20,052/- and education cess at 3% which comes to Rs.602/-. Thus, totally Rs.20,652/-. Accordingly, the annual income of the petitioner comes to Rs.3,79,848/- rounded off to Rs.3,80,000/-.
35. It is the case of the petitioner that in the accident he has suffered severe head injury and other injuries all over the body; took treatment in Unity Health Complex, Comprehensive hospital and Health Promotion Centre and Father Muller Medical College hospital, Mangaluru and M.S.Ramaiah hospital, Bengaluru as well as SDM Ayurvedha hospital, Udupi for 5 months as an inpatient; has incurred expenditure of Rs.10,00,000/- towards medicine, hospital and other expenses.
36. It is also his case that he became permanently disabled because of accidental injuries. The next friend/wife of petitioner who has entered into witness box as PW-6 has reiterated the above observed petition averments in her affidavit evidence. In her cross- (SCCH-15) 17 MVC.3549/2015 examination, her chief evidence is denied by way of suggestions which are in turn denied by her.
37. PW-5/doctor who has treated and assessed the disability is examined through the Court Commissioner wherein he has deposed that he is working as Neuro Surgeon in Father Muller hospital, Kankanady, since January 2012. He is one of the doctors, who treated the petitioner and he is the head of the department and conducted surgery.
38. As per records, petitioner came to their hospital with the history of RTA on 03.10.2013 and case was registered as MLC. Before the admission to their hospital, petitioner took treatment in some other hospital. He has started treatment from 04.10.2013 at 11.00 a.m.
39. He has also deposed that as per the wound certificate and discharge summary, he has suffered severe head injury. At the time of surgery, petitioner was unconscious and he had gradual and slow improvement from his condition at arrival and at the time of discharge on 18.01.2014.
(SCCH-15) 18 MVC.3549/2015
40. He has also deposed that neurological status was G.C.S., E-4, M-4-5 VT CI and eye opening spontaneously; localizing to pain but not obeying commands and he was on tracheotomy tube. Petitioner visited their hospital for follow up treatment on 04.10.2013, 18.01.2014 and 09.03.2015 to 11.03.2015 and underwent surgery in F unit.
41. It is also in his affidavit evidence that petitioner was admitted for tracheotomy removal for 2nd time, but it was not removed due to poor gag reflux sluggishly mobile vocal cords and pooling of saliva.
42. He has also deposed that there was no history of pre existing illnesses either diabetes and hypertension and at the request of the wife of petitioner, they were advised for regular follow up with local hospital since it was inconvenient for them to follow up in their hospital at Mangaluru.
43. He has also deposed that as per recent examination, the condition of the petitioner is below wheel chair bound, on tracheotomy tube, obeys simple commands on coaxing only. Petitioner has evaluated the (SCCH-15) 19 MVC.3549/2015 disability as per Indian disability evaluation and assessment scale and the total disability is at 99% which is severe one.
44. He has produced O.P.D examination records dated 19.06.2015; E.E.G. report dated 19.06.2015 and the report dated 19.06.2015 respectively at Ex.P-10 and
11. In his cross-examination, he has deposed that total duration of the inpatient period of the petitioner in their hospital is 113 days. He has denied the suggestion that petitioner has pre-existing illness and the petitioner has recovered after 4 surgeries and therefore, no further surgery is done.
45. If the documents produced on behalf of petitioner are gone through, Ex.P-1 is inpatient of Unity Health Complex, Comprehensive hospital and Health Promotion Centre which demonstrates that petitioner was brought to their hospital with the history of RTA on the very day i.e. on 03.10.2015 at 9 p.m.; petitioner was oriented; has suffered severe head injury and was in the hospital till 04.10.2013; was discharged on the request of attender of the patient.
(SCCH-15) 20 MVC.3549/2015
46. Ex.P-3 is the inpatient files (2 in nos.) issued by Father Muller Medical College hospital. Both those inpatient files are in support of the oral evidence of PW-5 noted above with regard to the nature of injuries, nature of treatment, two admissions in Father Muller Medical College hospital and the total inpatient period.
47. Ex.P-4 is the outpatient file of Father Muller Medical College hospital which is in support of the oral evidence of PW-5 with regard to the follow up treatment of the petitioner in the said hospital and also the numbers of visits and the duration. Ex.P-5 and 6 are respectively the X-rays and CT scans taken in the said hospital during the inpatient as well as the outpatient period.
48. Ex.P-7 is inpatient file of the petitioner issued by SDM Ayurvedha hospital, Kanakandy, which reveals that petitioner was admitted to their hospital on 14.04.2014 and was inpatient there till 31.10.2014 for treatment with residual neurological deficits due to accidental injuries; was treated conservatively with repeated panchakarma treatment.
(SCCH-15) 21 MVC.3549/2015
49. Ex.P-8 is inpatient record of M.S.Ramaiah hospital which reveals that petitioner was admitted to their hospital on 03.03.2014 and was inpatient there till 04.04.2014; was treated conservatively for post operative status decompressive craniotomy for evacuation of SDH with history of road traffic accident on 03.10.2013. It is also there that petitioner was conscious, alert, obeys commands, left hemiplegia at the time of discharge.
50. Ex.P-9 is the outpatient record of M.S.Ramaiah hospital which reveals that petitioner was on follow up. Ex.P-10 is the outpatient record of Father Muller Medical College hospital which reveals that petitioner was on follow up treatment.
51. Ex.P-18 is the wound certificate issued by Unity Health Complex wherein it is stated that petitioner was treated with the history of road traffic accident on 03.10.2013; was diagnosed for abraded contusion over the left forehead; contusion over the sacral region back; abraded contusion over the left parietal eminence, abrasion over the left elbow, cerebral odema with right fronto temporal lobe contusion which is found by CT (SCCH-15) 22 MVC.3549/2015 scan and fracture of sphenoid bone on left side i.e. skull bone which are grievous in nature.
52. It is also there that petitioner was inpatient in the said hospital for 3rd and 4th of October 2013; was managed conservatively and discharged on request since patient attender wanted to shift the patient to Father Muller Medical College hospital.
53. Ex.P-20 is the radiological reports wherein it is observed that there was subdural bleed right temporal convexity causing mass effect and left midline shaft, effacement of right lateral vertical and basal cisterns, subarachnoid bleed in right temporal cortex and tentorium, brain stem contusion, diffuse cerebral edema, pneumocephalus, 4th ventricle is normal, fracture of left sphenoid wing, sinus walls, petrous temporal bone, sqamous temporal bone with intra sinus, intra mastoid bleed was also found.
54. The radiological report dated 03.10.2014 issued by Unity Health Complex reveals that there was no sonological evidence of abdominal organ injuries at the time of scan. Ex.P-21 is the CT scan preliminary report. (SCCH-15) 23 MVC.3549/2015 The contents therein are in corroboration with the contents of Ex.P-20 observed above.
55. Ex.P-22 is the discharge summary of Father Muller Medical College hospital which are in corroboration with the contents of inpatient file at Ex.P-3 noted above. Ex.P-23 is the medical certificate issued by the said hospital wherein it is certified that petitioner was inpatient in their hospital from 04.10.2013 to 18.01.2014 and was discharged with advise for regular follow up treatment.
56. Ex.P-24 is the radiological report issued by Father Muller Medical College hospital i.e. CT brain which is dated 19.06.2015 and it reveals that extra axial hyperdense subdural haematoma in right fronto temporo parietal region, burr hole defects in right parietal & temporal bones, hydrocephalus with VP Shunt in situ, gliotic changes in right temporal lobe with exvacuo dilatation of temporal horn.
57. Ex.P-25 is the radiological report with regard to chest wherein it is stated that the fracture mid shaft of (SCCH-15) 24 MVC.3549/2015 the left clavicle noted and tracheostomy tube and nasogastric tube are in situ.
58. Ex.P.26 is the discharge summary issued by S.D.M. hospital which reveals that petitioner was brought to their hospital on 14.04.2014 with the history of road traffic accident and he was inpatient in the hospital till 31.10.2014; was diagnosed for severe head injury; took initial treatment at Father Muller Medical College hospital; at the time of treatment, the condition of the petitioner was semi conscious and he had neurological deficit and was managed conservatively during inpatient period.
59. Ex.P-27 is the heamatology test report and lab report, totally 124 pages taken during the inpatient period in Father Muller Medical College hospital. Ex.P-28 is CT scan film, 10 in numbers, colour photographs at Ex.P-9 reveals that petitioner has suffered severe head injury and he is semi conscious.
60. So, if the evidence on record is taken into consideration there is nothing on record to disbelieve the case of petitioner with regard to his suffering severe head (SCCH-15) 25 MVC.3549/2015 injuries in the accident and taking treatment in different hospitals for around 5 months and even now on follow up treatment and his condition is not recovered.
61. To prove the medical expenditure, petitioner apart from the oral evidence of his wife/next friend has also produced Ex.P-34, the medical bills of Unity Health Complex medical stores, Mangaluru, 2 in numbers totally amounting to Rs.29,661.47.
62. Ex.P-35 is inpatient bills of Father Muller Medical College hospital, 2 in numbers, totally amounting to Rs.8,39,608/- wherein health card discount of Rs.38,770/- is given. Hence, petitioner is not entitled for the said discount. Accordingly, petitioner is entitled for the remaining amount of (Rs.8,39,608/- minus Rs.38,770/-) Rs.8,00,838/-. Ex.P-36 is the advance bills, 11 in numbers, amounting to Rs.7,47,768/-. They are in the name of petitioner about payment towards inpatient bill at Ex.P-35.
63. Ex.P-37 is hospital bills, totally 246 in numbers, amounting to Rs.4,64,853/-. They are of Father Muller Medical College hospital. They are pharmacy bills. All (SCCH-15) 26 MVC.3549/2015 those bills are not included in the inpatient bill at Ex.P-
35.
64. Ex.P-38 is the inpatient bill of M.S.Ramaiah hospital, amounting to Rs.1,31,840.35. He has also produced Ex.P-39, advance paid receipts 3 in numbers amounting to Rs.1,31,844.35 towards payment of inpatient bill at Ex.P-38.
65. Ex.P-40 is the hospital bills, 41 in numbers, amounting to Rs.11,728/-. They are pharmacy bills of M.S.Ramaiah hospital. There is mention of pharmacy bills of Rs.9,680.35, but it appears that they are of OT pharmacy bills since the amount is meager and the bills at Ex.P-40 are the original bills.
66. Ex.P-41 is the inpatient bill of S.D.M. Ayurveda hospital for Rs.1,32,733/-. Towards payment of the said bills, petitioner has also got produced advance paid bills, 13 in numbers amounting to Rs.2,16,000/- at Ex.P-42. Ex.P-43 is the medicine bills, 50 in numbers amounting to Rs.22,304/-. They are of S.D.M.Ayurveda hospital bills. They are computerized original bills in the name of petitioner.
(SCCH-15) 27 MVC.3549/2015
67. Ex.P-44 is other medicine bills of private medical stores', totally 45 in numbers, amounting to Rs.2,54,656/-. They are computerized bills in the name of the petitioner and they are duly signed.
68. If the nature of injuries suffered by the petitioner, inpatient period and the hospitals wherein he took treatment are taken into consideration, there is nothing on record to disbelieve the above observed medical expenditure. Moreover, petitioners have also produced payment receipts, so far as inpatient bills.
69. It is in the evidence of PW-9 that they have rejected the application of the petitioner for medical reimbursement advising to claim before the insurance company since it is due to accident. In support of his oral evidence, he has also produced 5 letters at Ex.P-60.
70. So, it is clear that the entire medical expenses are borne by the petitioner himself. Hence, petitioner is entitled for the bills at Ex.P-34, 35, 37, 38, 40, 41, 43 and 44 totally amounting to Rs.18,93,938/- rounded off to Rs.19,00,000/-.
(SCCH-15) 28 MVC.3549/2015
71. It is the case of the petitioner since he has suffered severe head injury, he is unable to attend the job. To establish that petitioner apart from his oral evidence of his wife/next friend has also got examined PW-9, his employer.
72. In his cross-examination, PW-9 has admitted the suggestion that petitioner is not yet terminated from the service and he has also not submitted any voluntary retirement application. Therefore, this Tribunal has to presume that petitioner has continued in the service. Hence, it appears that it is not safe to award compensation with regard to loss of future earning.
73. It is the evidence of PW-5 that petitioner is having permanent physical impairment because of severe head injury and he has semi conscious. At this stage, it is important to note that petitioner was brought to the Court on 07.07.2015 and his counsel has filed memo seeking observation of the physical condition of the petitioner.
74. Accordingly, the physical condition of the petitioner was observed by the Court and the same is (SCCH-15) 29 MVC.3549/2015 recorded in the order sheet dated 07.07.2015 that the physical condition of the petitioner appears same as he appears in the photographs at Ex.P-29.
75. It is also noted therein that the counsel for respondent Sri.MD was asked to have some talk with the petitioner who in turn asked some curtsey questions to the petitioner. But, it appeared that petitioner was able to understand the questions to some extent, but was unable to reply. He was also unable to talk and his eyes appeared always closed.
76. It is also noted in the order sheet that when he was questioned, petitioner tried to open his eyes and little bit succeeded in opening his eyes, but he could not sustain the opened eyes for a little while and to answer the questions.
77. So, there is nothing on record to disbelieve the oral evidence of PW-5 with regard to 100% disability he has stated. Hence, it is just and proper to award reasonable compensation for permanent physical disability.
(SCCH-15) 30 MVC.3549/2015
78. It is the case of the petitioner that since he became permanently disabled because of accidental injuries, he is forced to engage an attendant for his day to day care. In support of his such a contention, he has also got examined alleged attendant by name Kiran as PW-8.
79. PW-8 has filed his affidavit evidence wherein he has stated that he has been appointed as servant to the petitioner as per oral agreement with the wife of petitioner i.e., PW-6. His duty hours is 24 hours for all types of work including cleaning toilet, bathing and give the Tiffin, milk, meals, dinner and everything and he is being paid Rs.15,000/- p.m.
80. In his cross-examination he has deposed that since November 2013, i.e. after completion of his 2nd PUC, he is taking care of petitioner on the request of the wife of petitioner/PW-6 and he has received salary by cash. In support of his oral evidence PW-8 has not produced any document.
81. But it is important to note that if the condition of the petitioner is taken into consideration, he should be (SCCH-15) 31 MVC.3549/2015 taken care of by an attendant for all the 24 hours for each and every thing. So, if the cost of living as on the date of accident is taken into consideration, there is nothing which prevents this Tribunal from taking attendant charges of Rs.6,000/- p.m.
82. Since, petitioner is in need of attendant during his lifetime of the petitioner, it is thought just and proper to award attendant charges considering the multiplier applicable to the age of petitioner.
83. It is the case of petitioner that he is in need of medical care through out his life. If the physical condition of the petitioner is taken note off, it appears that petitioner is need of regular medical care during his life time.
84. So, far the quantum of future medical expenses, there is no evidence on record. Hence, considering the nature of injuries, the age of petitioner and the nature of treatment he has undergone and thereby the nature of treatment he required in future, it is thought just and proper award Rs.5,000/- p.m. considering the multiplier applicable to the age of petitioner.
(SCCH-15) 32 MVC.3549/2015
85. It is evident on record that petitioner took treatment as an inpatient for around 5 months. If the nature of injuries and the physical condition of the petitioner is taken note off, it is clear that an attendant should have been with the petitioner during his inpatient period. Hence, it is thought just and proper to award some reasonable compensation under the head for loss of income during laid up period, diet, nourishment, attendant charges, conveyance and other incidental expenses. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 3,00,000/-
Loss of income during laid up Rs. 2,00,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 2,00,000/-
other Incidental Charges and etc.
Medical Expenditure Rs.19,00,000/-
Future Medical Expenditure Rs. 5,40,000/-
(5,000 x 12 x 9)
Permanent Attendant Charges Rs. 6,48,000/-
(6,000 x 12 x 9)
Loss of Amenities and Comfort Rs. 2,00,000/-
Permanent Physical Impairment Rs. 3,00,000/-
Total: Rs.42,88,000/-
86. Considering the cost of living on the date of accident, it is thought fit to award interest at 9% p.a. (SCCH-15) 33 MVC.3549/2015 from the date of petition till realization of the compensation amount in its entirety.
87. Now, in respect of liability. There is no dispute between the parties with regard to the fact that respondent is the RC owner and internal insurer of KSRTC bus. Therefore, respondent is liable to pay the compensation.
88. So, petitioner is entitled for compensation of Rs.42,88,000/- together with interest at 9% p.a. on Rs.31,00,000/- (excluding future medical expenses and permanent attendant charges) from the date of petition till the realization of the compensation in its entirety from respondent. Issue No.2 is answered accordingly.
89. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.42,88,000/- together with interest at 9% p.a. on Rs.31,00,000/- (excluding future medical expenses and permanent attendant charges) (SCCH-15) 34 MVC.3549/2015 from the date of petition till the realization of the compensation in its entirety from respondent.
Respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.10,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in his favour through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 26th day of April, 2016.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Mohan Kumar
PW2: Roshan
PW3: Ramanandha Karanth
PW4: Smt. Padma K.U
PW5: Dr. Madhukar T. Nayak
(SCCH-15) 35 MVC.3549/2015
PW6: Radha B
PW7: M. Narashimha Murthy
PW8: Kiran M
PW9: B. Mohd Yusuf
PW10: Giriyappa
PW11: K. Jayaram Reddy
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Veerabhadre Gowda LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1: Inpatient file pertains to Mr. Byrappa. Ex.P2 : Authorisation/covering letter, Ex.P3 : Inpatient files (2 in nos.), Ex.P4 : Out patient file, Ex.P5 : X-ray films (4 in nos.), Ex.P6 : CT scan film.
Ex.P7 : Inpatient file pertain to the patient by name Sri. Byrappa.
Ex.P8 : Inpatient file, Ex.P9 : Out patient record.
Ex.P12 : True copy of complaint, Ex.P13 : True copy of FIR, Ex.P14 : True copy of spot mahazar, Ex.P15 : True copy of spot sketch, Ex.P16 : True copy of MV report, Ex.P17 : True copy of charge sheet, Ex.P18 : True copy of wound certificate, Ex.P19 : Discharge summary of Unity Health complex hospital for the period from 03.10.2013 to 04.10.2013, Ex.P20 : Radiological reports (2 in nos.), Ex.P21 : CT scan preliminary report, Ex.P22 : Discharge summary of Father Muller Medical College Hospital for the period from 04.10.2013 to 18.01.2014, Ex.P23 : Medical certificates (3 in nos.) issued by Father Muller Medical College Hospital, Ex.P24 : CT brain report, (SCCH-15) 36 MVC.3549/2015 Ex.P25 : Radiological report (chest), Ex.P26 : Discharge summary of SGM Ayurveda hospital, Ex.P27 : Hematology test reports and lab reports (1 to 124 pages), Ex.P28 : CT scan films (10 in nos.), Ex.P29 : Colour photographs (8 in nos.), Ex.P29(a): CD, Ex.P30 : Notarised copy of employee ID (original shown for perusal), Ex.P31 : Notarised copy of PAN card (original shown for perusal), Ex.P32 : Notarised copy of ration card (original shown for perusal), Ex.P33 : Notarised copy of Voter ID (original shown for perusal), Ex.P34 : Medical bills of Unity Health complex medical store, Mangaluru (2 in nos.) amounting to Rs.29,661.47, Ex.P35 : Inpatient fills (2 in nos.) amounting to Rs.8,39,608/- of Father Muller Medical hospital, Mangaluru, Ex.P36 : Advance bills (11 in nos.) amounting to Rs.7,47,768/-, Ex.P37 : Hospital bills (246 in nos.) amounting to Rs.4,64,853/- of Father Muller Medical hospital, Ex.P38 : Inpatient bill of M.S.Ramaiah hospital, Bengaluru amounting to Rs.1,31,844.35, Ex.P39 : Advance bills (3 in nos.) Rs.1,31,844.35 of M.S.Ramaiah hospital, Bengaluru, Ex.P40 : Hospital bills (41 in nos.) amounting to Rs.11,728/- of M.S.Ramaiah hospital, Bengaluru, Ex.P41 : Inpatient bill amounting to Rs.1,32,733 of SDM Ayurveda hospital, Udupi, Ex.P42 : Advance bills (13 in nos.) amounting to Rs.2,16,000/- of SDM Ayurveda hospital, Udupi, Ex.P43 : Medicine bills (50 in nos.) amounting to Rs.22,304/-, Ex.P44 : Other medical bills (45 in nos.) amounting to Rs.2,54,656/-.(SCCH-15) 37 MVC.3549/2015
Ex.P45 : Prescriptions (14 in nos.).
Ex.P46 : Notarised copy of Voter ID (original not shown for perusal).
Ex.P47 : Notarised copy of driving license (original shown for perusal).
Ex.P48 : Authorisation letter, Ex.P49 : True copy of Transfer order dtd.11.05.2012, Ex.P50 : True copy of letter written by wife of the petitioner dtd.19.10.2013 about the accident, Ex.P51 : True copy of CL sanction order dtd.24.10.2013, Ex.P52 : True copy of EL sanction letter dtd.19.09.2014, Ex.P53 : True copy of transfer order dtd.10.05.2012, Ex.P53(a): Entry with regard to the transfer from petitioner from Jala to Dasanapura, Ex.P54 : True copy of duty report/joining letter, Ex.P55 : True copy of leave salary slips from October 2013 to January 2014 (5 in nos.), Ex.P56 : True copy of SR of the petitioner, Ex.P57 : True copy of attendance register from May 2012 to October 2013, Ex.P58 : True copy of LPC with covering letter, Ex.P59 : True copy of medical reimbursement application, Ex.P60 : True copies of letters (5 in nos.) rejecting the medical reimbursement application at Ex.P59. Ex.P61 : Authorization Letter Ex.P62 : Notorised copy of Employee I.D. (Original shown for perusal.
Ex.P63 : True Copy of I.P. Bill.
Ex.P64 : Authorization Letter Ex.P65 : Notarized copy of Employee I.D. (Original Shown for Perusal) Ex.P66 : Covering Letter Ex.P67 : Discharge Summary Ex.P68: True coy of inpatient detailed bill for Rs.
1,31,844/-.
(SCCH-15) 38 MVC.3549/2015LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
- Nil -
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.