Bangalore District Court
And Rider Of Hero Motor Cycle vs Had Not Filed The Written Statement. ... on 28 August, 2015
THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 28th day of August, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3904/2014
C/w. M.V.C.No.4177/2014
1. Rajappa, ..... PETITIONERS IN
S/o Thirumaiah, M.V.C.No.3904/2014
Aged about 50 years.
2. Kadiramma,
W/o Rajappa,
Aged about 40 years,
3. Bhagyamma,
D/o Rajappa,
Aged about 23 years.
All are residing at
Kenchaiyana Doddi,
Yellemala Post,
Kollegal Taluk,
Chamarajanagar District.
(By Sri. K.Krishna Murthy, Adv.,)
V/s
The Managing Director, ..... RESPONDENT IN
K.S.R.T.C. Depot, M.V.C.No.3904/2014
Bangalore Central Office,
K.H. Road, Shanthinagar,
Bangalore - 560 027.
(R.C. Owner of the K.S.R.T.C. Bus
bearing Registration No.KA-42-F-287)
SCCH-7 2 MVC .3904 & 4177/2014
(By Sri. M.Devakur Maddur, Adv.,)
Sri. Kumar.M.T.,
.....PETITIONER IN
S/o Thammegowda, M.V.C.No.4177/2014
Aged about 21 years,
R/at No.4295,
25th Cross, 15th 'A' Main,
I Stage, Kumaraswamy Layout,
Bangalore - 78.
(By Sri. B.K.Kumara, Adv.,)
V/s
The Managing Director, .....RESPONDENT IN
K.S.R.T.C. Depot, M.V.C.No.4177/2014
Bangalore Central Office,
K.H. Road, Shanthinagar,
Bangalore - 560 027.
(R.C. Owner of the K.S.R.T.C. Bus
bearing Registration No.KA-42-F-287)
(By Sri. Davakur Maddur, Adv.,)
COMMON JUDGMENT
As per the Order dated 07.02.2015 passed on Memo in
M.V.C.No.3904/2014, M.V.C.No.4177/2014 is clubbed with the
said M.V.C.No.3904/2014 and the common evidence is recorded
in the said case. Hence, M.V.C.No.3904/2014 and
M.V.C.No.4177/2014 are pending for consideration and
disposal before this Tribunal by passing a common judgment.
2. The Petitioner in M.V.C.No.3904/2014 has filed the
said petition as against the Respondent under Section 166 of
SCCH-7 3 MVC .3904 & 4177/2014
the Motor Vehicles Act, 1989 praying to award compensation of
Rupees 50,00,000/- with interest and costs, in respect of death
of Sri. Mahadesha. R. S/o Rajappa.
3. The brief averments of the Petitioner's case in
M.V.C.No.3904/2014 are as follows;
a) On 01.08.2014 at about 2.15 p.m., when the
deceased Mahadesha.R., after carefully observing the traffic
rules and regulations, slowly and cautiously was riding the Hero
Maestro Vehicle bearing Registration No.KA-05-JE-4726 on the
extreme left side on Bangalore - Kanakapura Main Road, while
so proceeding, reached Near Annapoorneshwari Bar and
Restaurant, at that time, suddenly the driver of K.S.R.T.C. Bus
bearing Registration No.KA-42-F-287 came from opposite
direction, i.e., from Bangalore towards Kanakapura in a rash
and negligent manner, endangering to human life, without
observing any of the traffic rules and regulations and over took a
Tempo, which was moving ahead of the said KSRTC Bus and
came to his extreme right, i.e., wrong side and dashed as
against the deceased's said vehicle, further moved ahead and
dashed as against another TVS XL Motor Cycle bearing
Registration No.KA-02-HZ-6109. Consequent to the terrific
impact, the deceased fell down and sustained grievous injuries
all over the body. In the said accident, the deceased's vehicle
was also extensively damaged beyond repair.
b) Immediately after the accident, the deceased was
shifted to Sri Sai Ram Hospital, wherein, after first-aid
treatment, due to severe injuries sustained by the deceased, for
further management, referred to B.G.S. Global Hospital,
SCCH-7 4 MVC .3904 & 4177/2014
Bangalore, wherein, C.T. Brain Scan was done, X-rays were
taken, which revealed multiple fracture injuries, due to which,
the deceased underwent surgery, even after better and expert
treatment, the deceased Mahadesha. R., was succumbed to fatal
injuries and died on 02.08.2014 at about 3.45 a.m., while
undergoing treatment. Thereafter, post-mortem examination
was conducted at Rajarajeshwari Medical College and Hospital,
Bangalore and handed over the dead body to them.
c) They have shifted the dead body to their residence by
hiring vehicle and conducted funeral and obsequious
ceremonies and spent more than Rupees 3,00,000/-.
d) Due to the sudden and sad demise of the deceased in
the tragic accident, they are undergoing deep mental shock,
pain and sufferings.
e) Prior to the date of accident, the deceased was hale
and healthy and was a Civil Engineer and constructing the
buildings including materials on contract basis by deputing the
labourers and earning a sum of Rupees 40,000/- per month.
With the said earnings, the deceased was maintaining them,
since the deceased was the only son and earning member in the
family. Due to untimely death of the deceased, their life has
become dark, miserable and depressed and put to great
financial hardship, without any earning member in the family.
f) The Petitioners No.1 and 2 are the parents of the
deceased have lost love and affectionate and care taking son and
the 3rd Petitioner being the sister of the deceased has lost love
and affectionate and care taker brother.
SCCH-7 5 MVC .3904 & 4177/2014
g) The accident occurred purely due to the rash and
negligent manner of driving of the driver of the aforesaid
K.S.R.T.C. Bus bearing Registration No.KA-42-F-287 and in this
connection, jurisdictional Thalaghattapura Police have
registered a case in their Crime No.396/2014 and after
investigation, the said Police have charge sheeted as against the
said driver, punishable under Section 279, 337 and 304(A) of
I.P.C.
h) The Respondent being the R.C. Owner of the said
K.S.R.T.C Bus bearing Registration No.KA-42-F-287, which
caused the accident, the same was driven by its driver, who is
under the course of employment with the Respondent. Hence,
the Respondent is liable to pay the compensation to them under
all heads, including general and special damages. Hence, this
Petition.
4. Initially, though the notice was duly served on the
Respondent, he was remained absent and hence, he was placed
as exparte on 19.11.2014. Later, the Respondent has appeared
before this Tribunal through his Learned Counsel and as per the
Order dated 26.12.2014 passed on I.A.No.I, the exparte order is
set-aside and the Respondent is taken on file. The Respondent
has filed the written statement.
5. The Respondent inter-alia denying the entire case of
the Petitioner in M.V.C.No.3904/2014, has further contended as
follows;
a) The claim petition filed by the Petitioner in wholly
false, frivolous, vexatious and is not maintainable either in law
or on facts. The claim of the petition is also exorbitant.
SCCH-7 6 MVC .3904 & 4177/2014
b) Infact on the said day, when the said KSRTC Bus
driven by its driver was moving the Bus slowly and carefully,
but, the rider of Hero Maestro Vehicle bearing Registration
No.KA-05-JE-4726 and TVS XL Motor Cycle bearing
Registration No.KA-02-HZ-6109 was at high speed in rash and
negligent manner, the rider of the Hero Motor Cycle could not
control his Motor Cycle as he got perplexed and immediately, he
was crossing his vehicle from left side to right without observing
the opposite vehicle and dashed as against the KSRTC Bus and
fell down infront of the Bus and at the same time, the Petitioner
was coming from opposite side and negligently riding his vehicle
by rash and negligently and could not control his TVS Motor
Cycle and dashed as against Hero Motor Cycle and causing this
accident. Hence, he is not responsible for the negligence of
Petitioner and rider of Hero Motor Cycle.
c) Either him or driver of K.S.R.T.C., are not liable to
pay the compensation to the Petitioner and the petition is not
maintainable as the Petitioner has not made the insurer of the
Motor Cycle as necessary party to the proceedings.
d) The claim made by the Petitioner of Rupees
50,00,000/- under various heads are imaginary, exorbitant and
fanciful. Hence, prayed to dismiss the claim petition.
6. The Petitioner in M.V.C.No.4177/2014 has filed the
said petition as against the Respondent under Section 166 of
the Motor Vehicles Act, 1989 praying to award compensation of
Rupees 6,00,000/- with interest at the rate of 12% p.a. and
costs.
SCCH-7 7 MVC .3904 & 4177/2014
7. The brief averments of the Petitioner's case in M.V.C.
No.4177/2014 are as follows;
a) On 01.08.2014 at about 2.15 p.m., when he was
riding a TVS XL Motor Cycle bearing Registration No.KA-02-HZ-
6109, on Bangalore - Kanakapura Road, near
Annapoorneshwari Bar and Restaurant, Udipalya, while
returning back to Bangalore after collecting the Bill amount at
Harohalli, very carefully, cautiously and observing all the traffic
rules, on the left side of the road, at that time, one K.S.R.T.C.
Bus bearing Registration No.KA-42-F-287, driven by its driver at
a very high speed, in a rash and negligent manner so as to
endangering to human life, came from Bangalore side towards
Kanakapura and tried to over taken ahead one Tempo and took
extreme right side of the road and dashed as against one Mr.
Mahadesh, who was riding the Motor Bike bearing Registration
No.KA-05-JE-4726 and further the said KSRTC Bus proceeded
and dashed as against his TVS XL. As a result, he fell down
along with TVS XL and sustained fracture right superior public
rami, fracture right posterior Ilium AISI Joint, fracture of right
clavicle, fracture of right 1st and 2nd ribs and other injuries all
over the body.
b) Immediately, he was shifted to Sri Sai Ram Hospital,
wherein, he was treated, X-ray was taken and the said fractures
and injuries were confirmed and advised to admit and undergo
an operation. But, due to the non-satisfaction of treatment at
Sri Sari Ram Hospital, he got discharged and admitted to KIMS
Hospital for further treatment, where at, he was treated as an
inpatient, fresh X-ray was taken. The Doctor, who had treated
him has opined that, injuries caused permanent in nature and
SCCH-7 8 MVC .3904 & 4177/2014
advised to undergo an operation. During the stay in Hospital, he
had operated and internal fixation was inserted to his fracture
site and discharged with an advise to come for follow-up
treatment.
c) Still he is under treatment. He had incurred huge
amount for his treatment, conveyances and nourishment etc.,
Wherefore, he reserves his right to furnish additional
information regarding permanent disability, fracture treatment
and losses etc..
d) Prior to accident, he was very hale and healthy and
working as Bill Collector at Kabbalamma Enterprises under one
Mr. H.B. Munesh and earning a sum of Rupees 15,000/- per
month.
e) Due to these accidental injuries, he could not attend
his work so far and he became permanent disabled. Now, he is
fully depending upon others in all day to day activities. Hence,
he and his family members are put to great hardship and
mental agony.
f) The Thalaghattapura Police have registered a case as
against the K.S.R.T.C Bus bearing Registration No.KA-42-F-287,
for the offences punishable under Section 279 and 337 of I.P.C.
In turn, the Police have taken up investigation, after
investigation, the said Police have filed charge sheet as against
the KSRTC Bus driver. This accident happed due to sole rash
and negligent manner of driving of the KSRTC Bus by its driver.
g) At the time of accident, the Respondent was R.C.
Owner of the said KSRTC Bus. The driver was in the course of
SCCH-7 9 MVC .3904 & 4177/2014
employment under the Respondent, holding a valid and effective
driving licence. Therefore, both the Respondents are liable to
payment of compensation. Hence, this Petition.
8. In response to the notice, the Respondent has
appeared before this Tribunal through his Learned Counsel.
But, initially, inspite of giving sufficient opportunities, the
Respondent had not filed the written statement. Later, as per
the Order dated 24.01.2015 passed on I.A.No.I, the written
statement filed by the Respondent is taken on file.
9. The Respondent inter-alia denying the entire case of
the Petitioner in M.V.C.No.4177/2014, has further contended as
follows;
a) The claim petition filed by the Petitioner in wholly
false, frivolous, vexatious and is not maintainable either in law
or on facts. The claim of the petition is also exorbitant.
b) Infact, on the said day, when the said KSRTC Bus
driven by its driver was moving the Bus slowly and carefully,
but, the rider of Hero Maestro Vehicle bearing Registration
No.KA-05-JE-4726 and TVS XL Motor Cycle bearing
Registration No.KA-02-HZ-6109 was at high speed in rash and
negligent manner, the rider of the Hero Motor Cycle could not
control his Motor Cycle as he got perplexed and immediately he
was crossing his vehicle from left side to right without observing
the opposite vehicle and dashed as against the KSRTC Bus and
fell down in front of the Bus and at the same time, the Petitioner
was coming from opposite side and negligently riding his vehicle
by rash and negligently and could not control his TVS Motor
Cycle and dashed as against the Hero Motor Cycle and causing
SCCH-7 10 MVC .3904 & 4177/2014
this accident. Hence, his Company is not responsible for the
negligence of Petitioner and rider of Hero Motor Cycle.
c) Either he or driver of K.S.R.T.C., are not liable to pay
the compensation to the Petitioner.
d) The petition is not maintainable as the Petitioner has
not made the insurer of the Motor Cycle as necessary party to
the proceedings. Hence, prayed to dismiss the claim petition.
10. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.3904/2014
1. Whether the Petitioners prove that,
they are the dependents and legal
representatives of deceased SRI.
MAHADESHA. R.?
2. Whether the Petitioners prove that
the accident occurred due to rash
and negligent driving of the KSRTC
Bus bearing Registration No.KA-42-
F-287 by its driver and Sri.
Mahadesha. R. died due to the
injuries sustained in the accident?
3. Whether the Petitioners are entitled
for compensation? If so, how much
and from whom?
4. What Order or Award?
SCCH-7 11 MVC .3904 & 4177/2014
In M.V.C.No.4177/2014
1. Whether the Petitioner proves that, the
accident occurred due to rash and
negligent driving of the KSRTC Bus
bearing Registration No.KA-04-N-3998
by its driver and in the said accident,
he sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so, how
much and from whom?
3. What Order?
11. In order to prove their case, the Petitioner in
M.V.C.No.3904/2013 have examined the Petitioner No.1 as
P.W.2 by filing an affidavit as his examination-in-chief and have
placed reliance upon Ex.P.14 to Ex.P.31 and Ex.P.32 to Ex.P.35
and the Petitioner in M.V.C.No.4177/2014 himself has been
examined as P.W.1 and has also examined one witness as P.W.3
by filing the affidavits as their examination-in-chief and has
placed reliance upon Ex.P.1 and Ex.P.13 and E.P.36 to Ex.P.38.
On the other hand, the Respondent has examined his driver as
R.W.1 and has also examined one witness as R.W.1 by filing the
affidavits as their examination-in-chief and has placed reliance
upon Ex.R.1 and Ex.R2.
12. Heard the arguments.
13. My answers to the above said Issues are as follows;
M.V.C.No.3904/2014
SCCH-7 12 MVC .3904 & 4177/2014
Issue No.1 : Partly in the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 12,34,498/-
with interest at the rate
of 6% p.a. from the date
of the petition till the
date of payment, from
the Respondent.
Issue No.4 : As per the final Order,
M.V.C.No.4177/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 1,57,664/-
with interest at the rate
of 6% p.a. from the date
of the petition till the
date of payment, from
the Respondent.
Issue No.3 : As per the final Order,
for the following;
REASONS
14. ISSUE NO.1 IN M.V.C.No.3904/2014 :- The P.W.,
who is the Petitioner in M.V.C.No.3904/2014 has stated in his
examination-in-chief that, they have filed the present claim
petition for claiming compensation on account of death of his
son Mahadesha.R., in the road traffic accident on 01.08.2014 at
SCCH-7 13 MVC .3904 & 4177/2014
about 2.15 p.m. He has further stated that, on 01.08.2014 at
about 3.00 p.m., he received a telephonic message that, his son
Mahadesha.R. had met with an accident, while he was riding
Motor Cycle bearing Registration No.KA-05-JE-4726 and when
he was proceeding from Kanakapura to Bangalore side slowly
and cautiously on the extreme left side of the road on
Bangalore-Kanakapura Main Road near Annapoorneshwari Bar
and Restaurant, at that time, a K.S.R.T.C. Bus bearing
Registration No.KA-42-F-287, which was coming from Bangalore
towards Kanakapura side, i.e., from opposite direction, dashed
to the Motor Cycle bearing Registration No.KA-05-JE-4726 and
then dashed as against another TVS XL Motor Cycle and due to
the impact, his son Mahadesha.R., fell down and sustained
grievous injuries all over the body and inspite of best treatment
at B.G.S. Global Hospital, he died on 02.08.2014 at about 3.45
a.m.
15. The Petitioners have produced Ex.P.14 FIR, Ex.P.15
Complaint, Ex.P.16 Requisition dated 02.08.2014, Ex.P.17
Police Intimation, Ex.P.19 Inquest, Ex.P.20 Post-Mortem Report,
Ex.P.21 Death Summary, Ex.P.24 Charge Sheet, Ex.P.25 Course
Completion Certification dated 28.05.2013, Ex.P.26 Statement
of Marks of 6th Semester Diploma Examination relating to
Mahadesha.R., Ex.P.27 Driving licence relating to the deceased
Mahadesha.R, Ex.P.28, Aadhaar Card relating to Petitioner
No.1, Ex.P.32 Ration Card, Ex.P.22 Aadhaar Card relating to
Petitioner No.3, Ex.P.34 SSLC Marks Card relating to the
deceased Mahadesha.R., and Ex.P.35 SSLC Marks Card relating
to Petitioner No.3.
SCCH-7 14 MVC .3904 & 4177/2014
16. On perusal of the contents of the said material
documents, it clearly goes to show that, the deceased
Mahadesha.R., succumbed to the injuries on 02.08.2014 at 3.45
a.m., in B.G.S. Global Hospital during the course of treatment
due to the accidental injuries, which sustained by him in the
road traffic accident, which was taken place on 01.08.2014 at
3.00 p.m., near Annapoorneshwari Bar and Restaurant, on
Kanakapura-Bangalore Main Road, when he was proceeding on
Motor Cycle bearing Registration No.KA-05-JE-4726, at that
time, the offending KSRTC Bus bearing Registration No.KA-42-
F-287 dashed against the said Motor Cycle and due to the said
impact, he fell down and sustained severe fatal injuries all over
the body and the Petitioner No.1 is a father, the Petitioner No.2
is a mother and the Petitioner No.3 is a younger sister of
deceased Mahadesha R. From this, it is made crystal clear that,
the Petitioners No. 1 to 3 are the legal representatives of the said
deceased Mahadesha.R. S/o Rajappa. It is also clear from the
contents of the said material documents as well as the oral
version of P.W.1 that, at the time of accident, the deceased was
a bachelor.
17. But, based on the same, it cannot be said that, all
the Petitioners No.1 to 3 were the dependants of the said
deceased, as, the Petitioner No.1 is a father of the deceased and
the Petitioner No.3 is a younger sister of the deceased, who
cannot be considered as dependents of the deceased, as, the
Petitioner No.1 being a father has to maintain and look-after
himself and he also being a father of the Petitioner No.3, has to
maintain and look- after the Petitioner No.3, as his daughter.
Further, the P.W.1 in his cross-examination has clearly stated
that, he is a shepherd and he is getting income of Rupees
SCCH-7 15 MVC .3904 & 4177/2014
6,000/- by doing businesses of goats. From this, it is made
crystal clear that, the Petitioner No.1, who is a father of the
deceased, is having his own income to maintain himself and
also to look-after and maintain his family members. No doubt
the P.W.1 in his cross-examination has stated that, his wife is
doing coolie work and earning Rupees 1,000/- per month. But,
based on the said evidence, it cannot be said and come to the
conclusion that, the Petitioner No.2 being a mother of deceased
cannot be considered as a dependent, as, it is well settled
principle of law that, the mother of the deceased bachelor can be
considered as a dependent of the deceased. Therefore, the
Petitioner No.2, who is a mother of the deceased, can only be
considered as a dependent of the deceased at the time of
accident. From this, it is made crystal clear that, at the time of
accident, the deceased had left only one dependent, who is his
mother, i.e., Petitioner No.2. Accordingly, I answered Issue
No.1 in M.V.C.No.3904/2014 partly in the Affirmative.
18. ISSUE NO.2 in M.V.C.No.3904/2014 AND ISSUE
NO.1 in M.V.C.No.4177/2014 :- The P.W.1, who is the
Petitioner No.1 in M.V.C.No.,4177/2014 has stated in his
examination-in-chief that, on 01.08.2014 at about 2.15 p.m.,
he was riding a TVS XL bearing Registration No.KA-02-HZ-6109
on Bangalore-Kanakapura Road near Annapoorneshwari Bar
and Restaurant on Kanakapura Main Road, while returning
back to Bangalore, after collecting the bill amount at Harohalli,
very carefully, cautiously and observing all the traffic rules on
the left side of the road, at that time, one KSRTC Bus bearing
Registration No.KA-42-F-287 driven by its driver at a very high
speed, in a rash and negligent manner so as to endangering to
human life came from Bangalore side towards Kanakapura, i.e.,
SCCH-7 16 MVC .3904 & 4177/2014
from opposite direction and tried to overtake ahead one Tempo
and took extreme right side of the road and dashed against one
Mr.Mahadesha, who was riding the Motor Bike bearing
Registration No.KA-05-JE-4726 and further the said KSRTC Bus
proceeded and dashed against his TVS XL and as a result, he
fell down and sustained superior public rami, fracture right
posterior Ilium AISI Joint, fracture of right clavicle, fracture of
right 1st and 2nd ribs and other injuries all over the body. He has
further stated that, immediately, he was shifted to Sri Sai Ram
Hospital, wherein, X-rays were taken and the above said
fractures and injuries were confirmed. He has further stated
that, this accident happened due to sole rash and negligent
driving of the KSRTC Bus bearing Registration No.KA-42-F-287
by its driver and he lodged a complaint before the
Thalagattapura Police Station and the Police have registered a
case as against the driver of the said KSRTC Bus and in turn,
the Police have taken up investigation and after investigation,
they have filed a charge sheet as against the driver of the
offending vehicle, i.e., KSRTC Bus for the offences punishable
under Section 279, 337 and 304(A) of IPC in their Crime
No.396/2014.
19. The P.W.2, who is the Petitioner No.1 in
M.V.C.No.3904/2014 has stated in his examination-in-chief
that, on 01.08.2014 at about 3.00 p.m., he received a telephonic
message that, his son Mahadesha.R. had met with an accident
while he was riding vehicle Motor Cycle bearing Registration
No.KA-05-JE-4726 and when he was proceeding from
Kanakapura to Bangalore side slowly and cautiously on the
extreme left side of the road on Bangalore-Kanakapura Main
Road near Annapoorneshwari Bar and Restaurant, at that time,
SCCH-7 17 MVC .3904 & 4177/2014
K.S.R.T.C. Bus bearing Registration No.KA-42-F-287, which was
coming from Bangalore towards Kanakapura side, i.e., from
opposite direction, dashed to the Motor Cycle bearing
Registration No.KA-05-JE-4726 and then dashed as against
another TVS XL Motor Cycle and due to the impact, his son
Mahadesha.R., fell down and sustained grievous injuries all over
the body and even vehicle Hero Maestro was severally damaged
and immediately after the accident, his son Mahadesha.R., was
taken to Sri Sai Ram Hospital, wherein, he was given first-aid
treatment and thereafter, he was shifted to B.G.S. Global
Hospital for further treatment, there, he was treated as an
inpatient from 01.08.2014 to 02.08.2014. He has further stated
that, CT Brain scan and X-rays were taken and diffuse cerebral
edema with obliteration of all basal cisterms and sulcal spaces
and right parietal bone fracture were confirmed and his son
underwent emergency surgery, wherein, bifrontal compressive
was done under G.A was done on 01.08.2014, but,
unfortunately inspite of best treatment, his son Mahadesha.R.,
died on 02.08.2014 at about 3.45 a.m., and thereafter, the dead
body of his son was shifted to Rajarajeshwari Medical College
and Hospital, Bangalore for conducting the post-mortem
examination. He has further stated that, Sri.M.T.Kumar had
given a complaint at Thalaghattapura Police Station regarding
this accident and the Jurisdictional Police have registered a
Criminal Case and have filed charge sheet as against the driver
of the KSRTC Bus bearing Registration No.KA-41-F-287 for the
negligent act. He has further stated that, this accident occurred
only due to the rash and negligent driving of the said Bus by its
driver and the Police have recorded his statement.
SCCH-7 18 MVC .3904 & 4177/2014
20. No doubt, the P.W.1 in his cross-examination has
stated that, before the accident, he saw the KSRTC Bus about
25-30 feet distance, wherein, the said Mahadesha was
proceeding little away in front of his vehicle. He has further
clearly admitted that, initially, the accident was in between the
KSRTC Bus and the said Motor Cycle, wherein, Mahadesha was
proceeding. The P.W.2 in his cross-examination has stated that,
he has not seen the accident.
21. Further the Respondent has examined the driver of
the offending KSRTC Bus as R.W.1 and R.W.2, who has stated
that, on the said day, when the said KSRTC Bus driven by him
was moving slowing and carefully, but, the rider of Hero Maestro
vehicle bearing Registration No.KA-05-JE-4726 and TVS XL
Motor Cycle bearing Registration No.KA-02-HZ-6109 was at high
speed in rash and negligent manner, the rider of the Hero Motor
Cycle could not control his Motor Cycle as he got perplexed and
immediately he was crossing his vehicle from left side to right
without observing the opposite vehicle and dashed against the
KSRTC Bus and fell down in front of the Bus and at the same
time, the Petitioner was coming from opposite side and
negligently riding his vehicle by rash and negligently and could
not control his TVS Motor Cycle and dashed against the hero
Motor Cycle and causing this accident and hence, the
Respondent Company is not responsible for the negligence of
Petitioner and rider of Hero Motor Cycle.
22. Furthermore, the R.W.1 and R.W.2 have clearly
stated in cross-examination that, at the time of accident, he was
proceeding from Bangalore to Kanakapura and he has lodged a
complaint before the Police immediately after the accident, he
SCCH-7 19 MVC .3904 & 4177/2014
does not know, after investigating the Talaghattapura Police
have filed a case and the Police have not informed him about the
accident. He has further stated that, since 4 years, he was
driving the Bus on the same route, wherein, the accident was
taken place and immediately after the accident, he and his
department have not lodged the complaint before the
jurisdictional Police about the accident. It is clearly stated that,
the Police have seized their Bus. From the said evidence of
R.W.1 and R.W.2, it is further made crystal clear that, at the
time of accident, the Respondent No.1 and Respondent No.2,
who was a driver of the offending KSRTC Bus was driving the
offending Bus and he was very much involved in the said
accident. If really, the said accident was not taken place due to
his negligence, he could have been definitely challenged the very
registration of the criminal case as against him by the
jurisdictional Police by preferring an appeal, before the Hon'ble
Appellate Court. Even, the R.W.1 and R.W.2 did not care to
lodge a complaint before the jurisdictional Police, immediately
after the accident as against the deceased and the Petitioner in
M.V.C.No.4177/2014. It implies that, the entire negligence is on
the part of the driver of the said offending KSRTC Bus and not
on the part of the Petitioner in M.V.C.No.4177/2014 and
deceased Mahadesha.R., in riding their two wheelers
respectively.
23. But, based on the said evidence, which is elicited
from the mouth of P.W.1 and P.W.2 by the Respondent and the
said evidence of R.W.1 and R.,W.2, it cannot be thrown away,
the above said entire oral version of P.W.1 and P.W.2 in respect
of the alleged accident, as, to corroborate his oral version, the
P.W.1, who is the Petitioner in M.V.C.No.4177/2014 has
SCCH-7 20 MVC .3904 & 4177/2014
produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Requisition,
Ex.P.4 Spot Panchanama, Ex.P.5 Spot Hand Sketch, Ex.P.6 MVI
Report, Ex.P.7 Charge Sheet, Ex.P.8 Wound Certificate, Ex.P.9
Outpatient Cards with Progress Notes 3 in numbers, Ex.P.12
Medical Reports 5 in numbers and Ex.P.13 X-ray Films 11 in
numbers and to corroborate the oral version of P.W.2, the
Petitioners in M.V.C.No.3904/2014 have produced Ex.P.14 FIR,
Ex.P.15 Complaint, Ex.P.16 Requisition dated 02.08.2014,
Ex.P.17 Police Intimation, Ex.P.18 Spot Mahazar, Ex.P.19
Inquest, Ex.P.20 Post- Mortem Report, Ex.P.21 Death Summary,
Ex.P.22 Spot Hand Sketch, Ex.P.23 MVI Report and Ex.P.24
Charge Sheet, which clearly disclosed that, the said road traffic
accident was taken place on 01.08.2014 at 2.15 p.m., due to
high speed, rash and negligent manner of driving of the
offending KSRTC Bus bearing Registration No.KA-42-F-287 by
its driver, i.e., R.W.1 and there was no negligence on the part of
the Petitioner in M.V.C.No.4177/2014 in riding his TVS XL
bearing Registration No.KA-02-HZ-6109 and deceased
Mahadesha.R., in riding his Motor Cycle bearing Registration
No. KA-05-JE-4726 and due to the said negligent act of driving
of the said KSRTC by its driver, i.e., R.W.1 and R.W.2 and in the
said road traffic accident, the Petitioner in M.V.C.No.4177/2014
had sustained 4 grievous injuries and deceased Mahadesha.R.,
had sustained severe fatal injuries all over his body and he
succumbed to the injuries at B.G.S. Global Hospital on
02.08.2014 at 3.45 a.m., during the course of treatment, which
is clear from the following discussion. More so, the P.W.1 and
P.W.2 have clearly denied the suggestions put to them by the
Respondent that, at the time of accident, the KSRTC Bus was
slowly moving and not with high speed and deceased
Mahadesha.R., was proceeding with a very high speed and as
SCCH-7 21 MVC .3904 & 4177/2014
the KSRTC Bus was coming on opposite side with a little speed,
but, the said deceased Mahadesha.R., suddenly took his vehicle
to right side and crossed and dashed to the Bus and caused the
accident and when the said Motor Cycle, wherein, the deceased
Mahadesha.R., was driving was fell down on the road and at
that time, the Petitioner in M.V.C.No.4177/2014, who was
riding his vehicle with a very high speed and due to which, he
himself dashed to the vehicle of the deceased, which was fell
down on the road and due to which, his vehicle involved in the
accident and no accident was taken place in between the said
vehicle and KSRTC Bus and though there is no negligence on
the part of the driver of the KSRTC Bus, a false complaint is
lodged as against him and due to the own negligence of the
Petitioner in M.V.C.No.4177/2014 and deceased themselves, the
said road traffic accident was taken place. Furthermore, the
P.W.1 in his cross-examination has clearly stated that, on
01.08.2014 at 2.15 p.m., he was alone proceeding on TVS XL
from Kanakapura to Bangalore and on that day, the KSRTC Bus
came from Bangalore to Kanakapura and at that time, the
vehicle Hero Maestro, wherein, the deceased Mahadesha was
also coming in front of the KSRTC Bus. He has further stated
that, after the accident, he was unconscious and he regains his
conscious, when he was in Kempegowda Hospital and since he
was unconscious immediately after the accident, he does not
know about other incidents in the alleged accidental spot.
Further, the P.W.2 in his cross-examination has clearly stated
that, on that day, his deceased son was going to Kanakapura
and his relative had informed him about the accident and the
P.W.1 has lodged the complaint before the Police about the
accident and his deceased son was not succumbed to the
injuries in the spot itself. He has further clearly stated that, at
SCCH-7 22 MVC .3904 & 4177/2014
the time of accident, his deceased son was proceeding on the
Motor Cycle and the KSRTC Bus caused the accident and
immediately after the accident, his deceased son was shifted to
Sri Sai Ram Hospital and thereafter, he was shifted to B.G.S.
Global Hospital for treatment. Furthermore, the Petitioner in
M.V.C.No.4177/2014 has examined the Doctor as P.W.3, who
has stated about the injuries sustained by the said Petitioner in
the said road traffic accident, which was taken place on
01.08.2014 at 2.15 p.m.
24. The contents of Ex.P.1 and Ex.P.14 FIR and Ex.P.15
Complaint clearly disclosed that, the Petitioner in M.V.C.
No.4177/2014 had lodged Ex.P.2 Complaint before the
Thalaghattapura Police as against the driver of the offending
KSRTC Bus bearing Registration No.KA-42-F-287 by alleging
that, due to very high speed, rash and negligent manner of
driving of the said KSRTC Bus bearing Registration No.KA-42-F-
287 by its driver, who came from Bangalore to Kanakapura, the
said road traffic accident was taken place on 01.08.2014 at 2.15
p.m., which dashed to the Motor Cycle bearing Registration
No.KA-05-JE-4726 at the time of overtaking the Tempo on right
side of the said road and thereafter, dashed to his Motor Cycle
at Annapoorneshwari Bar and Restaurant, Bangalore,
Kanakapura Main Road and due to the said impact, he had
sustained grievous injuries on his back, right shoulder, chest
and abdomen and Mahadesha had sustained grievous fatal
injuries on his head, face, hands and legs and both the Motor
Cycles were badly damaged and the public have shifted them to
Sri Sai Ram Hospital through Tata Ace, wherein, first-aid
treatment was given and thereafter, he was shifted to
Kempegowda Hospital and hence, he prayed to take necessary
SCCH-7 23 MVC .3904 & 4177/2014
legal action as against the driver of the KSRTC Bus bearing
Registration No.KA-05-JE-4726 and based on Ex.P.2 Complaint,
the Police have registered a criminal case as against the driver of
the KSRTC Bus, i.e., the R.W.1 and R.W.2, for the offences
punishable under Section 279, 337 and 304(A) of IPC in Crime
No.396/2014. It is also clear from the contents of the said
material initial documents that, there is no delay as such in
lodging the complaint about the accident in question.
25. The contents of Ex.P.4 and Ex.P.18 Spot
Panchanama, Ex.P.5 and Ex.P.22 Spot Hand Sketch and Ex.P.6
and Ex.P.23 MVI Report further clearly disclosed that, the Motor
Cycle bearing Registration No.KA-05-JE-4726 and TVS XL
bearing Registration No.KA-02-HZ-6109 and KSRTC Bus
bearing Registration No.KA-42-F-287 are very much involved in
the said road traffic accident and the entire negligence is on the
part of the driver of the said KSRTC Bus bearing Registration
No.KA-42-F-287, i.e., the R.W.1 and R.W.2 and there was no
negligence on the part of the Petitioner in M.V.C.No.4177/2014
in riding his TVS XL Motor Cycle bearing Registration No.KA-02-
HZ-6109 as well as the deceased Mahadesha.R., who was riding
the Motor Cycle bearing Registration No.KA-050JE-4726 and
the damages caused to the said vehicles are clearly mentioned
in MVI Reports, which clearly disclosed about the terrific impact
of the said accident. It is also clearly mentioned in Ex.P.6 MVI
Report that, the said accident was not occurred due to any
mechanical defects of the said vehicles.
26. The contents of Ex.P.8 Wound Certificate clearly
disclosed that, in the said road traffic accident, the Petitioner in
M.V.C.No.4177/2014 had sustained fracture right superior
SCCH-7 24 MVC .3904 & 4177/2014
public rami, fracture right posterior Ilium AISI joint, fracture
right clavicle, fracture right 1st and 2nd ribs which are grievous
in nature. From this, it is made crystal clear that, in the said
road traffic accident, the Petitioner in M.V.C.No.41776/2014
had sustained 4 injuries, which are grievous in nature, i.e.,
fractures.
27. The contents of Ex.P.9 Out Patient Card with
Progress Notes 3 in numbers, Ex.P.12 Medical Reports 5 in
numbers and Ex.P.13 X-ray Films 11 in numbers further
disclosed the nature of injuries, which are grievous injuries,
which had been sustained by the Petitioner in
M.V.C.No.4177/2014 in the said road traffic accident as well as
the line of treatment taken by him as an outpatient in Sri Sai
Ram Hospital and KIMS Hospital.
28. The contents of Ex.P.3 and Ex.P.16 Requisition
dated 02.08.2014, Ex.P.17 Police Intimation, Ex.P.19 Inquest,
Ex.P.20 Post-Mortem Report and Ex.P.21 Death Summary
clearly disclosed that, deceased Mahadesha S/o Rajappa had
sustained grievous fatal injuries all over his body in the said
road traffic accident and immediately, he was shifted to Sri Sai
Ram Hospital, wherein, first-aid treatment was given and
thereafter, he was shifted to B.G.S. Global Hospital and during
the course of treatment, he succumbed to the injuries in the
said Hospital on 02.08.2014 at 3.45 a.m. From this, it is made
crystal clear that, due to the accidental injuries, deceased
Mahadesha.R., was died. It is clearly mentioned in Ex.P.20 Post-
Mortem Report that, the cause of death is head injury
sustained.
SCCH-7 25 MVC .3904 & 4177/2014
29. The contents of Ex.P.7 and Ex.P.24 Charge Sheet
further clearly disclosed that, since during the course of
investigation, it is found that, due to very high speed, rash and
negligent manner of driving of the offending KSRTC Bus bearing
Registration No.kA-42-F-287 by its driver, i.e., the R.W.1 and
R.W.2, the said road traffic accident was taken place on
01.08.2014 at 2.15 p.m., in front of Annapoorneshwari Bar and
Restaurant, near Uttarahalli, Udipalya, Bangalore South, which
was dashed to the Hero Maestro bearing Registration No.KA05-
JE-4726 and TVS XL bearing Registration No.KA-02-HZ-6109
and due to which, both the said two wheelers badly damaged
and Mahadesha.R., who was riding the Hero Maestro Motor
Cycle bearing Registration No.KA-05-JE-4726, had sustained
grievous injuries on his head and body and he was admitted in
B.G.S. Global Hospital, wherein, he succumbed to the injuries
on 02.08.2014 at 8.45 a.m., and the rider of TVS XL Motor Cycle
bearing Registration No.KA-02-HZ-6109, i.e., the Petitioner in
M.V.C.No.4177/2014 M.T.Kumar had sustained grievous
injuries on his back, right shoulder, chest and abdomen and as
such, after thorough investigation, the Investigating Officer has
filed a charge sheet as against the R.W.1 and R.W.2 for the
offences punishable under Section 279, 338 and 304(A) of IPC.
30. The entire negligence is on the part of R.W.1 and
R.W.2 in committing the said road traffic accident, wherein, the
deceased Mahadesha.R. S/o Rajappa succumbed to the injuries
in the Hospital during the course of treatment on 02.08.2014 at
3.45 a.m., and the Petitioner in M.V.C.No.4177/2014 had
sustained 4 grievous injuries, i.e., fractures in the said road
traffic accident, are clearly proved from the above said material
evidence. The entire negligence is on the part of the driver of the
SCCH-7 26 MVC .3904 & 4177/2014
said offending KSRTC Bus. By producing Ex.R.1 Identity Card
and Ex.R.2 Driving Licence, the Respondent has clearly
established that, at the time of accident, he was driving the
KSRTC Bus bearing Registration No.KA-42-F-287. Accordingly,
I answered Issue No.2 in M.V.C.No.3904/2014 and Issue
No.1 in M.V.C.No.4177/2014 in the Affirmative.
31. ISSUE NO.3 IN M.V.C.No.3904/2014 AND ISSUE
NO.2 IN M.V.C.No.4177/2014 :-
ISSUE NO.3 IN M.V.C.No.3904/2014 :-
The P.W.2 has stated that, at the time of accident, his late
son Mahadesha.R. was aged about 25 years. The Petitioners
have produced Ex.P.27 Driving Licence and Ex.P.34 SSLC
Certificate relating to Mahadesha, which disclosed that, his date
of birth is 16.04.1990. The date of accident is 01.08.2014. On
perusal of the said dates, it appears that, at the time of
accident, the deceased was 25 years old. Hence, the age of the
deceased Mahadesha is considered as 25 years at the time of
accident.
32. The P.W.2 has stated that, his deceased son was
hale and healthy and he was a Civil Engineer and Building
Contractor and he was working as a Civil Engineer on contract
basis and he would hire labourers for constructing buildings
and he has entered an agreement dated 06.12.2012 with
Sri.Nagendra Prasad to construct the House on Site No.41 and
42, 6th Cross, Siddagudda Ashrama, Kodipalya, Kengeri
Bangalore-60. He has also entered into another agreement dated
26.06.2014 with Muthuraj to construct the House in Site
No.9/81 at O.B. Choodalli Village, Udayapura Post, Uttarahalli
SCCH-7 27 MVC .3904 & 4177/2014
Hobli, Bangalore South Taluk. He has further stated that, his
deceased son was earning Rupees 40,000/- per month and he
would give Rupees 25,000/- towards the house hold expenses.
The Petitioners have produced Ex.P.25 Course Completion
Certificate dated 28.05.2013, Ex.P.26 Statement of Marks of 6th
Semester Diploma Examination relating to Mahadesha.R.,
Ex.P.30 Building Contract Agreement dated 06.12.2013 and
Ex.P.31 Contract Agreement dated 26.06.2014. The P.W.2 in his
cross-examination has further stated that, at the time of
accident, his son had completed Diploma Course. But, only
based on the said oral version of P.W.2, it cannot be believed
and accept that, at the time of accident, the deceased was
earning Rupees 40,000/- per month and he was giving Rupees
25,000/- towards house hold expenses. As, except the said
documents, the Petitioners have not produced Bank statement
and Income Returns relating to the deceased to consider his
income. It is only gathered from the contents of the said
material documents that, the deceased was completed his Civil
Engineer Course. The P.W.2 in his cross-examination has
clearly stated that, his deceased son was not having a contract
licence issued by the competent Authority and he has not
produced any documents to show that, at the time of accident,
his son was drawing 40,000/- per month. If really, the deceased
was a contractor of construction of buildings, he could have
been definitely having a licence from the concerned Authority.
Further, the Petitioners have not examined the owners of the
site, wherein, the deceased was going to construct the building
in Ex.P.30 and Ex.P.31 Contract Agreement. Furthermore, at
the time of accident, the deceased was 25 years old. Further, if
really the deceased was getting Rupees 40,000/- per month, he
could have been definitely paying income tax. No such
SCCH-7 28 MVC .3904 & 4177/2014
document is forth coming before this Tribunal to consider the
avocation and income of the deceased as stated by the P.W.2.
Therefore, the income of Rupees 40,000/- per month relating to
the deceased at the time of accident cannot be believed and
accept. However, at the time of accident, the deceased was 25
years old and he has completed his education. By considering
the same, this Tribunal feels that, it is just, proper and
necessary to consider the notional income of the deceased as
Rupees 6,000/- per month at the time of accident, which is
believable and accepted one. Hence, the notional income of the
deceased is considered as Rupees 6,000/- per month at the time
of accident.
33. The P.W.1 has stated that, due to the untimely death
of his son, he and his wife have been put into deep mental
shock and agony and they have lost their affectionate son for
the rest of their life
34. As it is already held that, the age of the deceased
was 25 years and he was a bachelor at the time of accident and
the notional income of the deceased was of Rupees 6,000/- per
month. As per the decision reported in 2013 ACJ 1403 (Rajesh
and Others V/s Rajbir Singh and Others), having regard to the
age of the deceased, 50% of the actual income has to be added
towards future prospects. Therefore, by adding Rupees 3,000/-
(50% of Rupees 6,000/-), the notional income per month would
be Rupees 9,000/- per month (Rs. 6,000/- + 3,000/-).
35. As per the decision reported in 2015 AIR SCW 3105
(Munna Lal Jain and Another V/s Vipin Kumar Sharma and
Others), in a case of bachelor, the age of the deceased has to be
SCCH-7 29 MVC .3904 & 4177/2014
taken for applying multiplier. It is already observed that, at the
time of accident, the age of the deceased was 25 years.
36. The Petitioner No.1, who is a father and the
Petitioner No.3, who is a younger sister of the deceased, cannot
be considered as dependents of the deceased. The Petitioner
No.2, who is a mother of the deceased, can only be considered
as a dependent of the deceased. Therefore, the said deceased
Mahadesha. R. S/o Rajappa, left behind only one dependant.
Hence, 50% of the income of the deceased has to be deducted
towards his personal expenses as per Sarala Varma's Case.
Therefore, if out of Rupees 9,000/-, 50% is deducted, the loss of
dependency comes to Rupees 4,500/- per month (50% of
Rs.9,000/-). As the age of the deceased was 25 years at the time
of accident, the corresponding multiplier applicable to the age of
the deceased is 18 as per Sarala Varma's Case. The loss of
dependency comes to Rupees 9,72,000/- (Rupees 4,500/- x 12 x
18). Hence, the Petitioners are entitled for the said sum of
Rupees 9,72,000/- towards loss of dependency.
37. The P.W.2 has stated that, after post-mortem
examination, he received the dead body of his son and
performed the last rites. He has further stated that, he has
spent more than Rupees 3,00,000/- towards the medicines,
Hospitalization, transportation charges, funeral expenses
obsequious of his son Mahadesha.R.
38. The Petitioners have produced Ex.P.29 Inpatient
Bills, which is amounting of Rupees 1,92,498/-. Though the
accident was taken place on 01.08.2014 at 3.00 p.m., deceased
Mahadesha.R. died on 02.08.2014 at 3.45 a.m., in BGS Global
SCCH-7 30 MVC .3904 & 4177/2014
Hospital during the course of treatment. In the said road traffic
accident, the Petitioner had sustained severe grievous fatal
injuries all over his body. Therefore, the said amount of Rupees
1,92,498/-, which covered under Ex.P.29 Inpatient Bills cannot
be doubted. Hence, the Petitioners are entitled for the said
amount of Rupees 1,92,498/- towards actual medical expenses.
39. Except Ex.P.29 Inpatient Bills, the Petitioners have
not produced bills or documents to show the actual amount
spent by them towards transportation charges, funeral expenses
and obsequies of the deceased. But, as per the decision reported
in 2013 ACJ 1403 (Rajesh and Others V/s Rajbir Singh and
Others), loss of love and affection has to be compensated by
awarding Rupees 25,000/- and funeral expenses of Rupees
25,000/-. Hence, the Petitioners are entitled for a sum of
Rupees 25,000/- towards loss of love and affection and Rupees
25,000/- towards funeral expenses.
40. It is just, proper and necessary to award a sum of
Rupees 5,000/- towards transportation expenses of the dead
body of deceased and Rupees 15,000/- towards loss of estate.
Hence, the Petitioners are entitled for Rupees 5,000/- towards
transportation expenses of the dead body of the deceased and
Rupees 15,000/- towards loss of estate.
41. In this way, the Petitioners are entitled for the
following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of Dependency Rs. 9,72,000-00
2. Actual Medical Expenses Rs. 1,92,498-00
SCCH-7 31 MVC .3904 & 4177/2014
3. Funeral Expenses Rs. 25,000-00
4. Expenses of transportation Rs. 5,000-00
of dead body
5. Loss of Love and affection Rs. 25,000-00
6. Loss of Estate Rs. 15,000-00
TOTAL Rs. 12,34,498-00
42. In view of the above said reasons, the Petitioners are
entitled for total compensation of Rupees 12,34,498/-. The
Petitioners are also entitled for interest at the rate of 6% p.a. on
the said amount of compensation from the date of petition till
payment.
43. ISSUE No.2 IN M.V.C.No.4177/2014 :- The
Petitioner has not produced any authenticated documents to
consider his age at the time of accident . From the above said
Police and medical documents, it is clear that, at the time of
accident, he was 21 to 22 years old. By considering the same, in
the absence of the material evidence, the age of the Petitioner is
considered as 22 years at the time of accident. Hence, the age of
the Petitioner is considered as 22 years at the time of accident.
44. The P.W.1 has stated that, prior to the accident, he
was very hale and healthy and working as a Bill Collector at
Kabbalamma Enterprises under one Mr.H.B.Munesh and
earning a sum of Rupees 15,000/- per month. In this regard,
the Petitioner has not produced any authenticated documents.
The same has also been clearly admitted by the P.W.1 in his
cross-examination. Even, the Petitioner has not disclosed his
educational qualification. As the Petitioner was 22 years old at
the time of accident, by considering the same, in the absence of
SCCH-7 32 MVC .3904 & 4177/2014
material documents, this Tribunal feels that, it is just, proper
and necessary to consider the notional income of the Petitioner
at Rupees 6,000/- per month. Hence, the notional income of the
Petitioner is considered as Rupees 6,000/- per month at the
time of accident.
45. The P.W.1 has stated that, the Doctors of Sri Sai
Ram Hospital have advised him to get admit and undergo an
operation and assessed the cost of surgeries to a sum of Rupees
1,50,000/- and due to the financial crises, he could not
undergo operation and he got admitted to KIMS Hospital for
further treatment, wherein also, he was advised to undergo an
operation and discharged with an advice to come for follow-up
treatment. Based on Ex.P.8 Wound Certificate and Ex.P.9 Out-
patient Card with progress notes and E.P.13 X-ray Films 11 in
numbers, this Tribunal has already come to the conclusion
that, in the said road traffic accident, the Petitioner had
sustained 4 grievous injuries, which are fractures. It is clearly
mentioned in Ex.P.8 Wound Certificate itself at Sri Sai Ram
Hospital, the Petitioner discharged against medical advise. From
this, it is made crystal clear that, the Petitioner was not
underwent any surgeries in Sri Sai Ram Hospital. Further, the
Petitioner had produced Out Patient Card issued by KIMS
Hospital and no way it is mentioned about the surgery to the
said accidental fracture injuries. Even, the Petitioner has not
produced any Discharge Summary. From this, it is made crystal
clear that, the Petitioner had taken treatment to the said
accidental injuries as an out-patient.
46. The P.W.1 has stated that, even today, he is taking
treatment as and when necessary and due to the accidental
SCCH-7 33 MVC .3904 & 4177/2014
injuries, he could not attend his work so far and he became
permanent disabled and it is very difficult to lead a day to day
life without sufficient income and now his earning capacity is
totally reduced and hence, himself and his family members are
put to great hardship and mental agony. He has further stated
that, prior to the accident, he was very hale and healthy due to
this accidental injuries sustained in the road traffic accident
and can't walk and stand for a long period of time, he can't lift
weight, climb or down stairs, he can't use Indian type of toilet,
he can't sit on the floor continuously for 10 minutes, he can't
sleep in one angle, he can't fold his right hand, he can't raise
his right hand, hold anything in his right hand, he can't bend
his body easily, can't ride any vehicle, can't do any manual
work.
47. The Petitioner has also examined the Doctor as
P.W.3, who is working as Consultant Orthopedic and Trauma
Surgeon at Sreenivasa Hospital, Balepet, Banglaore, who has
stated in his examination-in-chief that, the Petitioner was
initially admitted in Sri Sai Ram Hospital, Bangalore and later,
shifted to KIMS Hospital and he was treated conservatively in
the form of clavicle brace and sling and bed rest for 6 weeks. He
has stated that, he has taken regular follow-up treatment at
KIMS Hospital, Bangalore. He has further stated that, on recent
examination on 25.06.2015, he found that, tenderness over
middle 1/3rd of right clavicle, Arc of movement of right shoulder
flexion restricted by 15 degree, rotation restricted by 10 degree
and abduction/adduction restricted by 10 degree, antaligic gait
in right lower limb, tenderness over right clavicle and right
simple injuries joint, arc of movement of right hip
flexion/extension restricted by 15 degree, abduction/adduction
SCCH-7 34 MVC .3904 & 4177/2014
restricted by 10 degree and internal/external rotation restricted
by 10 degree, difficulty in lifting over head objects and
squatting, kneeling and sitting cross legged and X-ray done on
25.06.2012, which shows union of the fractures. By considering
the mobility component, loss of mobility component of right
upper limb, loss of stability component of right lower limb, extra
points, loss of motion-hip stability component and extra points
relating to both right upper and lower limb, the P.w.3 has
opined that, the Petitioner has pain and restricted ROM in right
shoulder and right hip along with mild difficulty in doing
routine activities and he has 11% whole body disability due to
permanent physical impairment in right upper limb 5% and
right lower limb 7% as per the Government of India Notification
Guidelines 2001. He has also produced Ex.P.36 Disability
Certificate Report and Clinical Notes, Ex.P.37 OPD Slip and
Ex.P.38 X-ray Films 2 in numbers. But, only based on the said
oral version of P.W.1 and P.W.3 coupled with the contents of
Ex.P.8 Wound Certificate, Ex.P.9 OPD Cards, Ex.P.13 X-ray
Films, Ex.P.36 Disability Report, Ex.P.37 OPD Slip and Ex.P.38
X-ray films, it cannot be believed and accept that, due to the
accidental injuries, the Petitioner is suffering from permanent
physical impairment of 11% to the whole body, as, admittedly,
the P.W.3 is not a personally treated Doctor and admittedly, the
Petitioner was not underwent any surgery and he was
discharged from the Hospital as against the medical advise.
Furthermore, the P.W.3 in his cross-examination has stated
that, before the assessment of disability, he has gone through
the contents of Discharge Summary and Wound Certificate
relating to the Petitioner. But, no such discharge summary is
forthcoming before this Tribunal to know and consider the line
of treatment taken by the Petitioner in the Hospital to the
SCCH-7 35 MVC .3904 & 4177/2014
accidental injuries. Even, the P.W.3 has not produced the
discharge summary, which he verified before the assessment of
disability. No disability certificate is issued by the P.W.3 to the
Petitioner. Furthermore, the P.W.1 in his cross-examination has
clearly stated that, now he has no problem to walk.
Furthermore, while discussing above, based on the medical
documents, this Tribunal has already observed that, the
Petitioner was discharged from the Hospital against the medical
advise. The P.W.3 has clearly stated that, the Petitioner had
taken conservative treatment. In view of the said reasons, this
Tribunal has come to the conclusion that, due to the accidental
injuries, the Petitioner is not suffering from permanent physical
impairment of 11% to the whole body.
48. However, by considering the age of the Petitioner and
nature of injuries, i.e., 4 fractures, this Tribunal feels that, due
to the said accidental injuries, the Petitioner is suffering some
extent of disability, which is permanent in nature. By
considering the nature of injuries and line of treatment and also
the age of the Petitioner, this Tribunal feels that, due to the
accidental injuries, the Petitioner is suffering from permanent
physical impairment of 5% to the whole body, which is
believable and acceptable one.
49. As this Tribunal has already come to the conclusion
that, the permanent physical and functional impairment of the
Petitioner is of 5% to the whole body. This would certainly come
in the way of the future life of the Petitioner and thereby, his
income to that extent would be definitely reduced. Therefore,
the Petitioner is entitled for future loss of income arising out of
the permanent physical and functional disability of 5%.
SCCH-7 36 MVC .3904 & 4177/2014
50. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 22 years at the time of
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 18.
51. As the Petitioner is suffering from permanent
physical and functional disability of 5% to the whole body. The
notional income of the Petitioner is already considered as
Rupees 6,000/- per month. Therefore, the loss arising out of the
said 5% disability for monthly income of Rupees 6,000/- by
applying multiplier 18 would comes to Rupees 64,800/-, i.e.,
(Rs.6,000/- x 12 x 18 x 5%).
52. As per Ex.P.8 Wound Certificate and evidence of
P.W.1 and P.W.3, the Petitioner had sustained 4 grievous
injuries. The Petitioner had taken conservative treatment as an
outpatient. Due to the said injuries, the Petitioner could have
definitely suffered a lot of pain and agony. Considering the said
aspects, it is just, proper and necessary to award a sum of
Rupees 40,000/- towards pain and suffering.
53. As it is already observed that, the age of the
Petitioner was 22 years. He has to lead remaining his entire life
with 5% permanent physical and functional disability, which
comes in the way of enjoyment of life. Therefore, it is just and
proper to award a sum of Rupees 10,000/- towards loss of
amenities of life to the Petitioner.
54. It is not disclosed by the Petitioner either in the
petition or in his evidence that, he was unmarried as on the
date of accident. But, at the time of accident, the Petitioner was
22 years old. This Tribunal has already come to the conclusion
SCCH-7 37 MVC .3904 & 4177/2014
that, due to the accidental injuries, the Petitioner is suffering
from permanent physical and functional impairment of 5% to
the whole body. Therefore, in view of the absence of pleading as
well as the evidence, this Tribunal feels that, by considering the
age of the Petitioner as well as the nature of injuries and extent
of disability, it is just, proper and necessary to award
compensation towards marriage prospects. Hence, the Petitioner
is entitled for compensation of Rupees 10,000/- towards loss of
marriage prospects.
55. The Petitioner had sustained 4 grievous injuries and
he took conservative treatment. By considering the nature of the
said fracture injuries, the Petitioner could not do any work at
least for 3 months and thereby, he deprived the income.
Therefore, at the rate of Rupees 6,000/- per month, a sum of
Rupees 18,000/- is awarded towards loss of income during the
laid up period.
56. The P.W.1 has stated that, he visited the Doctor once
in a week for 2 months and once in 15 days for 4 times by using
a taxi and paying a sum of Rupees 1,000/- per trip and even
today, he is taking treatment as and when necessary. He has
further stated that, he has spent a sum of Rupees 60,000/- for
his treatment, conveyance, nourishment, etc., and still he is
under treatment. But, the Petitioner has only produced Ex.P.10
Medical Bills 15 in numbers, which is amounting of Rupees
14,863-99 and Ex.P.11 Medical Prescriptions 4 in numbers. The
Petitioner had sustained 4 grievous injuries, which were
fractures and has taken treatment at Sri Sai Ram Hospital and
KIMS Hospital as an outpatient and had taken conservative
treatment. Considering the nature of the injuries and line of
SCCH-7 38 MVC .3904 & 4177/2014
treatment taken, the possibility of spending the said amount for
the medicines cannot be doubted. Therefore, it is necessary to
award the said actual medical expenses of Rupees 14,863-99,
which is rounded off Rupees 14,864/-.
57. The P.W.1 and P.W.3 have not stated anything about
the future medical assistance and its expenses. Even, the
Petitioner had taken conservative treatment and he was
discharged from the Hospital at the initial point of time as
against the medical advise. Hence, the Petitioner is not entitled
for any compensation towards future medical expenses.
58. As the Petitioner has not produced the Discharge
Summary to show how many days, he took treatment to the
said accidental injuries by admitting as an inpatient in the
Hospital and the same has not stated by the P.W.1 and P.W.3
and the Petitioner has not produced any receipts or bills, the
Petitioner is not entitled for any compensation towards
conveyance charges, attendant charges and food, nourishment
and diet charges etc.,
59. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. Rs. 64,800-00
arising out of 5% Disability
2. Pain and sufferings Rs. 40,000-00
3. Loss of amenities of life Rs. 10,000-00
Loss of income during laid
4. Rs. 18,000-00
up period
5. Actual medical expenses Rs. 14,864-00
6. Marriage prospects Rs. 10,000-00
TOTAL Rs. 1,57,664-00
SCCH-7 39 MVC .3904 & 4177/2014
60. In all, the Petitioner is entitled for total
compensation of Rupees 1,57,664/- along with interest at the
rate of 6% per annum on the above said sum from the date of
Petition till payment.
61. While answering Issue No.2 in M.V.C.No.3904/2014
and Issue No.1 in M.V.C.No.4177/2014, this Tribunal has
already come to the conclusion that, the offending KSRTC Bus
bearing Registration No.KA-42-F-287 as well as its driver, i.e.,
R.W.1 and R.W.2 are very much involved in the said road traffic
accident, wherein, Sri.Mahadesha.R. S/o Rajappa succumbed
to the injuries and the Petitioner in M.V.C.No.4177/2014 had
sustained 4 grievous injuries and the said accident was taken
place due to high speed, rash and negligent manner of driving of
offending KSRTC Bus, i.e., R.W.1 and R.W.2. The Petitioners in
cause title of both petitions have clearly mentioned that, the
Respondent is a R.C. Owner of the offending KSRTC Bus
bearing Registration No.KA-42-F-287. The same has not been
disputed by the Respondent in his written statement. By
examining the R.W.1 and R.W.2 and also by producing Ex.R.1
Identity Card and Ex.R.2 Driving Licence, the Respondent has
clearly established that, at the time of accident, the R.W.1 and
R.W.2 was driving the said offending KSRTC Bus bearing
Registration No.KA-42-F-287. The Respondent being a R.C.
Owner is an internal insurer relating to the said offending
KSRTC Bus. Furthermore, by producing Ex.P.27 Driving
Licence relating to the deceased Mahadesha.R., the Petitioners
in M.V.C.No.3904/2014 have established that, at the time of
accident, the said deceased was having a valid and effective
driving licence to drive the Motor Cycle. Further, the Petitioner
SCCH-7 40 MVC .3904 & 4177/2014
in M.V.C.No.4177/2014 has clearly stated in his cross-
examination that, he was having a driving licence to ride his
vehicle. Under the said circumstances, the Respondent being a
R.C. Owner and internal insurer of the offending KSRTC Bus
bearing Registration No.kA-42-F-287 is liable to pay the above
said compensation and interest to the Petitioners in both the
cases at the rate of 6% p.a. from the date of petition till
payment. Hence, Issue No.3 in M.V.C.No.3904/2014 and
Issue No.2 in M.V.C.No.4177/2014 are answered
accordingly.
62. ISSUE NO.4 IN M.V.C.NO.3904/2014 and ISSUE
NO.3 IN M.V.C.NO.4177/2014 :- For the aforesaid reasons, I
proceed to pass the following;
ORDER
The petition filed by the Petitioners in M.V.C.No.3904/2014 and M.V.C.No.4177/2014 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioners in
M.V.C.No.3904/2014 are entitled for
compensation of Rupees 12,34,498/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent.
The Petitioners in
M.V.C.No.3904/2014 shall share the
SCCH-7 41 MVC .3904 & 4177/2014
compensation and interest in the ratio of 20:60:20.
The Petitioner in
M.V.C.No.4177/2014 is entitled for
compensation of Rupees 1,57,664/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent.
The Respondent shall deposit the said compensation and interest in this Tribunal, within one month from the date of this order, in both the cases.
In the event of deposit of
compensation and interest in
M.V.C.No.3904/2014, 50% each share relating to the Petitioners No. 1 to 3 shall be released in their favour through account payee cheques respectively and the remaining 50% each share relating to them shall be kept in F.D. in their respective names in any nationalized Bank of their choice, for a period of 3 years.
In the event of deposit of
compensation and interest in
M.V.C.No.4177/2014, the entire
deposited amount shall be released in his SCCH-7 42 MVC .3904 & 4177/2014 favour through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the judgment shall be kept in M.V.C.No.3904/2014 and the copy of the same shall be kept in M.V.C.No.4177/2014.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 28th day of August, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : Kumar. M.T
P.W.2 : Rajappa
P.W.3 : Dr. Avinash Parthasarathy
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 True Copy of FIR
Ex.P.2 True Copy of Complaint
Ex.P.3 True Copy of Requisition
Ex.P.4 True Copy of Spot Panchanama
Ex.P.5 True Copy of Spot Hand Sketch
Ex.P.6 True Copy of MVI Report
Ex.P.7 True Copy of Charge Sheet
SCCH-7 43 MVC .3904 & 4177/2014
Ex.P.8 True copy of Wound Certificate
Ex.P.9 Outpatient cards with progress notes (3
in nos.)
Ex.P.10 Medical Bills (15 in nos.) Ex.P.11 Medical Prescriptions (4 in nos.) Ex.P.12 Medical Reports (5 in nos.) Ex.P.13 X-ray Films (11 in nos.) Ex.P.14 True copy of FIR Ex.P.15 True copy of Complaint Ex.P.16 True copy of Requisition dated 02.08.2014 Ex.P.17 True copy of Police Intimation Ex.P.18 True copy of Spot Panchanama Ex.P.19 True copy of Inquest Ex.P.20 True copy of PM Report Ex.P.21 Death Summary Ex.P.22 True copy of Spot Hand Sketch Ex.P.23 True copy of MVI Report Ex.P.24 True copy of Charge Sheet Ex.P.25 Notarised Xerox copy of Course Completion Certificate dated 28.05.2013 relating to Mahadesha.R. Ex.P.26 Notarised Xerox copy of Statement of Marks of VIth Semesta Diploma Examination relating to Mahadesha.R. Ex.P.27 Notarised Xerox copy of Driving Licence relating to Mahadesha.R. Ex.P.28 Notarised Xerox copy of Aadhar Card relating to Rajappa Ex.P.29 Inpatient Bill Ex.P.30 Building Contract Agreement dated 06.12.2013 Ex.P.31 Contract Agreement dated 26.06.2014 Ex.P.32 Notarised Xerox copy of Ration Card Ex.P.33 Notarised Xerox copy of Aadhaar Card relating to Kadaramma Ex.P.34 Notarised Xerox copy of SSLC Marks Card relating to Mahadesha.R. Ex.P.35 Notarised Xerox copy of Statement of SSLC Marks Card relating to Bhagyamma.R. Ex.P.36 Disability Report along with clinical notes and X-ray Report Ex.P.37 OPD Slip Ex.P.38 X-ray Films (2 in nos.) SCCH-7 44 MVC .3904 & 4177/2014
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Prabulingaiah
R.W.2 : Prabulingaiah
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Notarised xerox copy of Identity Card relating to Prabhulingaiah S/o Ramaiah Matapathi Ex.R.2 : Notarised Xerox copy of Driving Licence relating to Prabhulingaiah S/o Ramaiah Matapathi (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.