Bangalore District Court
Somashekaraiah vs Puneeth Kumar N.R on 1 October, 2024
KABC020347872022
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH-17
Present: Sri. KANCHI MAYANNA GOUTAM B.A.L, LL.M.,
Member, MACT
XIX ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 1st day of October- 2024
MVC No. 6493 /202 2
PETITIONER/S: Somashekaraiah,
Aged about 35 years,
S/o. Rangappa,
R/at Manchaladore Post,
M. Rangapura,
Hagalawadi Hobli,
Gubbi Taluk-572117,
Tumakuru District.
Being unsound mind
after the accident represented
by his next friend & wife
Smt. M.G. Kavya,
Aged about 23 years,
residing at the above
mentioned address.
(By Smt. Surekha V., Adv.,)
V/s.
SCCH-17 2 MVC No.6493/2022
RESPONDENTS: 1. Puneeth Kumar N.R.,
Major, S/o Rajanna,
R/at Nallur village,
Manchalavadi Post,
Hagalavadi Hobli,
Gubbi Taluk,
Tumkur District-572117.
(RC owner of Motorcycle
bearing Reg. No.KA-06-HM-
2367)
(By Sri.Yogilinganna,Adv.,)
2. Cholamandalam MS-Gnrl.
Insurance Co. Ltd.,
unit-IV, 9th floor, Level-06,
Golden Heights Complex,
59th 'C' cross, Industrial
Suburb, Rajajinagar 4th 'M'
Block, Bengaluru- 560010.
(Insurer of Motorcycle
bearing Reg. No.KA-06-HM-
2367)
(By Sri.S. Maheswara Adv.)
JUDGMENT
The petitioner filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the injuries sustained by the petitioner in a road traffic accident that occurred on 17.10.2022.
2. The petition averments in brief are as under: SCCH-17 3 MVC No.6493/2022
On 17.10.2022 at about 10.30 a.m., the petitioner was riding Motorcycle bearing Reg. No.KA-06-ED-1019 on the left side of Nalluru-Gangayyanapalya road, near Mata, Hagalavadi Hobli, Gubbi Taluk, Tumkur District, at that time the rider of the Motorcycle bearing No.KA-06-HM-
2367 came in a rash and negligent manner with high speed and all of a sudden came to its wrong side of the road from opposite direction and dashed against the petitioner's motorcycle. Due to the impact the petitioner thrown out from his motorcycle and sustained severe head injury.
Immediately after the accident, the petitioner was shifted to Chelur Govt. Hospital and after first aid the petitioner was shifted to Tumakuru District Hospital, wherein initial treatment was given and then he was shifted to NIMHANS hospital, Bengaluru wherein he took conservative treatment and thereafter he was shifted Abhaya Hospital wherein the petitioner was admitted as inpatient and has spent huge amount towards SCCH-17 4 MVC No.6493/2022 hospitalization charges, treatment medicines, conveyance, nourishing food and other incidental charges etc., Prior to the accident, petitioner was very hale and healthy and was working as Agriculturist cum Arcanut, Coconut and vegetable business and earning Rs.30,000/-
p.m. Due to the accidental injuries, the petitioner is not able to continue with work and is under complete bed rest and also suffering from permanent disability.
The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle, are jointly severally liable to pay the compensation to the petitioner.
Hence, prays to award compensation of Rs.75,00,000/-
with interest.
3. After service of notices, both the respondents appeared. The respondent No.2 has filed written statement and respondent No.1 has not chosen to file any written statement.
SCCH-17 5 MVC No.6493/2022
Respondent No.2 insurance company appeared through its counsel and filed written statement by admitting the issuance of policy to the motor cycle bearing No. KA-06-HM-2367 and the liability of this respondent if any, is subject to terms and conditions of the policy. Further contended that, the accident was occurred due to negligence on the part of the petitioner himself and there is no negligence on the part of rider of the motor cycle. Further the respondent No.2 contended that the rider of the motor cycle bearing No. KA-06-HM- 2367 was not having valid and effective driving licence as on the date of accident. Further denied the age, avocation, alleged disability and income of the petitioner. The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, the respondent No.2 prays to dismiss the petition against it.
4. On the basis of the rival contention, the following issues are framed by this court: SCCH-17 6 MVC No.6493/2022
1. Whether the petitioner proves that he had sustained grievous injuries due to the actionable negligent riding of Motor Cycle bearing Reg. No.KA-06-HM-2367 by its rider, in RTA took place on 17.10.2022 at about 10.30 a.m. on Nalluru- Gangayyanapalya road, near Mata, Hagalavadi Hobli, Gubbi Taluk, Tumkuru District?
2. Whether the petitioner is entitled for compensation as prayed? If so, what amount and from whom?
3. What Order or Award?
5. In order to prove the claim petition, the petitioner examined his next friend/wife as P.W.1 and got marked the documents at Ex.P.1 to 13. Sri. Venkatesh, Medical Record Officer at Abhaya Hospital, Bengaluru is examined as PW.2, through him got marked Ex.P.14 to
19. Dr. Shailesh A.V. Rao, who is working as Consultant Neurosurgeon at Padmashree Diagnostics, Bangalore is examined as PW.2, through him got marked Ex.P20 to 23. The respondents did not choose to lead evidence.
6. Heard the arguments and perused the material evidence that are available on record.
SCCH-17 7 MVC No.6493/2022
7. My findings on the above issues are as under.
Issue No.1 : In the affirmative;
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final orders
for the following:-
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the petitioner's next friend/wife filed her affidavit in lieu of-examination in-chief and examined as P.W1. In support of her case, the PW.1 produced true copies of FIR, complaint, statement of petitioner, spot mahazar, IMV report, wound certificate and charge sheet, which are marked under Ex.P.1 to 7.
9. On perusal of Ex.P1- FIR is registered on the basis of Ex.P2 first information given by the relative of the petitioner by reporting the accident and rash and negligent riding by the rider of motorcycle bearing No. KA-06-HM-2367. In the Ex.P2 it is alleged that when the petitioner was proceeding in his motorcycle in the left SCCH-17 8 MVC No.6493/2022 side of the road towards Nalluru, the rider of offending motorcycle bearing No. KA-06-HM-2367 came from opposite side and by riding his motorcycle in rash and negligent manner came to his extreme right side and dashed against the motorcycle of the petitioner.
10. After the registration of FIR as per Ex.P1, the Ex.P4 spot mahazar was conducted. On perusal of the contents of Ex.P4 spot mahazar therein, the I.O. has found the damaged two-wheeler pieces and also the blood stains in the accident spot. The mahazar also reveals that there is a right turn near the accident spot. The Ex.P.5 is the IMV report wherein the offending motorcycle bearing No. KA-06-HM-2367 has got damaged in its front side and also the motorcycle of the petitioner also got damaged in its front side. Both the parties had not chosen to examine any eyewitnesses. The eyewitness i.e. informant of Ex.P.2 alleged the rash and negligent riding by the rider of motorcycle bearing No. KA-06-HM-2367. The main cause for the accident is the rider of SCCH-17 9 MVC No.6493/2022 motorcycle bearing No. KA-06-HM-2367 came to his extreme right side and dashed against the motorcycle of the petitioner. The respondent No.1 being the owner of the offending vehicle does not chosen to examine the rider of offending vehicle to deny the fact of alleged negligence. Thus, the contents of Ex.P.2 first information and Ex.P.4 spot mahazar reveals that the rider of motorcycle bearing No. KA-06-HM-2367 came to his extreme right side road and caused the accident. The contents of Ex.P.4 mahazar and Ex.P.2 first information supported the case of the petitioner.
11. The learned counsel for the respondent No.1 insurance company vehemently argues that there is an inordinate delay of 1 day in lodging the FIR and the same cannot be brushed aside lightly, instead has to be construed as a circumstance showing that the case is an afterthought and the said bike is falsely implicated.
12. By considering the argument canvassed by both the parties no doubt that delay has to be explained SCCH-17 10 MVC No.6493/2022 in the petitions filed for the compensation. But not every delay would move this court to view the case of the petitioners doubtfully. Because there might be genuine circumstances that could have contributed to the delay. In fact only if the delay is left unexplained the same needs to be viewed seriously. No doubt in the facts of this case, the accident occurred on 17.10.2022 at about 10.30 a.m., but the FIR was lodged on 18.10.2022 at about 1.20 p.m. and hence it is evident that the FIR is lodged after one day of occurrence of the alleged accident. But the informant of Ex.P2 has clearly narrated in Ex.P-2 complaint as to why the FIR was lodged belatedly by narrating that soon after the accident at 10.30 a.m. the petitioner was initially taken to Chelur Government Hospital, and thereafter taken to Government Hospital, Tumkur and later shifted to Abhay Hospital, Bengaluru as such they could not lodge the FIR immediately; and the said explanation offered by the informant for delaying the lodging of the FIR is plausible. As per Ex.P6 wound SCCH-17 11 MVC No.6493/2022 certificate the CT Scan of the brain of the petitioner has discloses that the petitioner has got multiple skull bone fractures with SDH and SAH in the cerebral hemisphere and the brain stem contusion. Further the Ex.P6 also depicts that the petitioner was admitted to hospital on 17.10.2022 by alleging the road traffic accident on the same day. It is very important to note that the endeavor of the family of the injured will be getting the treatment to the injured than thinking about the legal formalities.
13. Perhaps the Hon'ble Supreme Court in the case of Ravi v. Badrinarayan and others reported in AIR 2011 SC 1226, has observed thus:
"The purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge SCCH-17 12 MVC No.6493/2022 it, even if there is delay, the same deserve to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground."
(Emphasis supplied by me) Hence the delay of one day, in the light of reasons assigned in the Ex.P2 complaint and it cannot be considered as inordinate.
14. In the judgment reported in 2011 ACJ 911 between Ravi V/s. Badrinarayan and others, wherein it is held as follows;
"18. The cumulative effect of the aforesaid events clearly established that accident had taken place on 7.10.2001 at about 8.30 in the morning on account of rash and negligent reversing of the truck by driver Badrinarayan, owned by Respondent No. 2, Prahlad Singh.
Under these circumstances, it cannot be said that delay in lodging the FIR could have proved fatal to the claim case filed by Ravi.
19. Narration of the aforesaid events would show the bonafides of Suresh.SCCH-17 13 MVC No.6493/2022
As mentioned herein above, a consistent stand has been taken right from the beginning till the lodging of the FIR. The chronological events narrated herein above inspire confidence and it does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation.
20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police.
Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim SCCH-17 14 MVC No.6493/2022 case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
22. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured.SCCH-17 15 MVC No.6493/2022
23. In the light of the aforesaid discussion, we are of the considered opinion that the MACT as well as High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition".
15. It is interesting to note that no doubt the FIR was lodged belatedly, but in all the medical records, it is clearly mentioned that the history narrated to the doctors by the family of injured at the very first instance, as can be seen from Ex.P.15 & 16 MLC register extract and police intimation which in turn reveals that the petitioner admitted to their hospital on 17.10.2022 at about 4.30 p.m. with the history of accident between 2 two-wheelers at 10.30 a.m. on 17.10.2022 near Mata bus stand, Gubbi taluk. Thereby the Ex.P.15 and 16 helped the petitioner to prove the alleged accident and also to show that there is no intentional delay in registering the FIR. Under such circumstances, this tribunal is of the firm opinion that the delay is certainly backed by genuine reasons. Moreover where the standard of proof required SCCH-17 16 MVC No.6493/2022 is preponderance of probabilities and the facts before the tribunal probablizes the reasons assigned by PW.1 for delaying the lodging of the FIR as such this court cannot uphold the contention of the respondent No.2 regarding the delay by considering the condition of the petitioner after the accident.
16. In the accident cases, it is settled principle of law that "RES- IPSA LOQUITUR" which means the things speaks itself, is the standing principle to know the nature of the accident. Under this principle how the negligence has to be infer is considered. In tort law, "RES- IPSA LOQUITUR" principle that allows petitioners to meet their burden of proof with under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. On perusal of Ex.P4- contents of mahazar with Ex.P5 IMV report wherein the damages of the vehicle involved in the accident is mentioned prima- facie shows the negligence SCCH-17 17 MVC No.6493/2022 on the part of the rider of motorcycle bearing No. KA-06- HM-2367. As per the mahazar the accident is in the left side of the road in which the petitioner was proceeding as in the left side of the road and the rider motorcycle bearing No. KA-06-HM-2367 dashed against the petitioner who was riding in the left side of the road. Hence, by applying the said principle the negligence on the part of the rider of motorcycle bearing No. KA-06- HM-2367 is stands established.
17. Wherefore in the absence of any cogent evidence which could rebut the assertions made by PW-1 on oath supported by Ex.P-7 which is the charge sheet and the documents annexed therewith, this court should not have any impediment to conclude that the said documents prima-facie suffice to hold that accident occurred due to rash and actionable negligence on the part of the rider of the motorcycle bearing No. KA-06-HM- 2367. The view taken by this Court that the police records are prima- facie proof in support of the case of SCCH-17 18 MVC No.6493/2022 the petitioner, is supported by the decision rendered in Kishan Gopal and another Vs. Lala and others reported in 2013 (4) T.A.C 5 (S.C.), wherein the Hon'ble Apex Court has categorically held thus:
In view of the aforesaid facts, the Tribunal should have considered both oral and documentary evidence referred to supra and appreciated the same in the proper perspective and recorded the finding on the contentious issue No. 1 & 2 in the affirmative. But it has recorded the finding in the negative on the above issues by adverting to certain statements of evidence of AW1 and referring to certain alleged discrepancies in the FIR without appreciating entire evidence of AW1 and AW2 on record properly and also not assigned valid reasons in not accepting their testimony. The Tribunal should have taken into consideration the pleadings of the parties and legal evidence on record in its entirety and held that the accident took place on 19.07.1992, due to which Tikaram sustained grievous injuries and succumbed to the same and the case was registered by the Uniara Police Station under Sections 279 and 304A, IPC read with Sections 133 and 181 of the M.V. Act against the first and second respondents. The registration of FIR and filing of the chargesheet against respondent Nos.1 & 2 are not in dispute, therefore, the Tribunal should have no option but to accept the entire evidence on record and recorded the finding on the contentious issue Nos.1 and 2 in favour of the appellants.
(Emphasis supplied by me)
18. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles SCCH-17 19 MVC No.6493/2022 Act, 1988, the claimant is expected to prove the inc ident on basis of principle of preponderance of probabilities and the view taken by this Court is fortified by the decision rendered by the Hon'ble Supreme Court in Kusum and others V/s Satbir and others which is reported in 2011 SAR (CIVIL) 319. Further the Hon'ble Supreme Court in case of Bimla Devi and others v. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 has observed that, it is necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. Further the Hon'ble High Court of Karnataka in National Insurance Co. Ltd. Vs. Krishnappa and another reported in 2001 ACJ 1105, where the Hon'ble High Court of Karnataka considering the fact that the rider of the offending vehicle was not examined to prove any contributory negligence on the part of scooterist held that the accident had occurred due to rash or negligent driving by the rider of the offending van. Even here in this case the IO, as SCCH-17 20 MVC No.6493/2022 already observed, has clearly opined that the accident occurred only due to the fault of the rider of the motorcycle bearing No. KA-06-HM-2367 and he was charge sheeted.
19. In view of the ratio laid down in the authorities referred to above and applying the settled principle of law to the case at hand, which is further supported by the oral and documentary evidence adduced by PW-1, this Tribunal is of the considered opinion that the accident leading to this case indeed occurred due to the actionable negligence on the part of the rider of motorcycle bearing No. KA-06-HM-2367 resulting in petitioner sustaining injuries. Thus, the allegation of the respondent No.2 regarding the negligence on the part of the petitioner is also not sustained. Accordingly, issue No.1 answered in the affirmative.
ISSUE NO.2:
20. As already held herein above, the petitioner has proved that the petitioner has sustained injuries in SCCH-17 21 MVC No.6493/2022 RTA which is caused by the rider of motorcycle bearing No. KA-06-HM-2367. Hence, the petitioner is entitle for compensation. This Court has already held Issue No. 1 in the affirmative which makes it more than obvious that the petitioner is entitled for compensation. Needless to state the quantum of compensation which is awarded has to be proportionate to the nature of the injuries and the compensation has to be awarded by keeping in mind the pecuniary damages and non-pecuniary damages suffered by the injured-claimant. By pecuniary damages this Court is referring to the actual loss sustained by the petitioner, which can be determined in terms of money, by taking into account the oral or documentary evidence whereas by non-pecuniary damages this Court is referring to the losses that the claimant has though suffered, but will not be able to prove for the reason that it can neither be calculated in terms of the money nor can it be proved leading documentary evidence. Perhaps the non-pecuniary damages can be figured out by looking SCCH-17 22 MVC No.6493/2022 into the facts of each case by taking into account the nature of injuries and the aftermath. It is required to be reminded to oneself that compensation in a case arising out of injury can never be granted on mathematical precision and invariably a good amount of guesswork is involved while determining the compensation in such cases. Perhaps unlike in a fatal case, in a case involving bodily injury the victim is left to suffer throughout his life; and hence it becomes the bounden duty of the tribunal to award compensation to a victim of permanent disability so as to bring in sustainability and also to ensure that victim is not pushed to poverty.
21. In order to demonstrate the pecuniary loss suffered by the petitioner due to the injuries, the petitioner has lead oral and documentary evidence. The wife of the petitioner in their oral evidence has asserted on oath that immediately after the accident, the petitioner was taken to Chelur Government Hospital, then shifted to Tumakuru Government Hospital and then SCCH-17 23 MVC No.6493/2022 shifted to NIMHANS Hospital, Bengaluru and thereafter he was shifted to Abhaya Hospital. As per Ex.P6 wound certificate the CT Scan of the brain of the petitioner depicts that the petitioner has got multiple skull bone fractures with SDH and SAH in the cerebral hemisphere, brain stem contusion (head injury). It is contended that the petitioner has spent more than Rs.20,00,000/- towards hospitalization charges, treatment medicines, conveyance, nourishing food and other incidental charges etc., Further the petitioner has supported the said contention by producing Ex.P-6- wound certificate, Ex.P8 2 discharge summaries, Ex.P9 medical bills, Ex.P.10 medical prescriptions. These medical documents along with discharge summaries pertaining to the petitioner which reveal indeed the petitioner underwent treatment at Abhaya Hospital, Bengaluru. As per Ex.P5 wound certificate the CT Scan of the brain of the petitioner depicts that petitioner has got multiple skull bone fractures with SDH and SAH in the cerebral hemisphere, SCCH-17 24 MVC No.6493/2022 brain stem contusion (head injury). Further the petitioner has asserted that he has spent an amount of Rs.5,30,710/- towards his treatment and seeks to prove the same by producing the aforementioned documents and medical bills along with prescriptions which are exhibited at Ex.P-9 & 10, which reveal that petitioner indeed has sustained grievous injuries and has undergone treatment for the same.
22. As regards the nature of injuries and the disability suffered, the petitioner has produced Ex.P8- discharge summaries along with the disability assessment affidavits filed by the PW.3 doctor. It is keeping these facts in mind that the compensation has to be determined. Now the quantum of compensation is to be ascertained on different heads.
a) PAIN AND AGONY :- At the time of alleged accident the petitioner was aged about 35 years.
Aadhaar card produced at Ex.P13 also shows that the date of birth of the petitioner as 01.01.1986, the accident SCCH-17 25 MVC No.6493/2022 took place in the year 2022 hence, as on the date of accident, the petitioner was aged about 36 years. In the petition itself the petitioner has averred that the petitioner was initially admitted to Chelur Government Hospital, then shifted to Tumakuru Government Hospital and then shifted to NIMHANS Hospital, Bengaluru and thereafter petitioner was shifted to Abhaya Hospital. As per Ex.P6 wound certificate the CT Scan of the brain of the petitioner depicts that the petitioner has got multiple skull bone fractures with SDH and SAH in the cerebral hemisphere, brain stem contusion (head injury). As per the discharge summaries marked at Ex.P8 the petitioner initially admitted on 17.10.2022 and discharged on 31.10.2022. Thereafter once again he was admitted in Abhaya Hospital on 13.02.2023 and discharged on 20.02.2023. On the second time the petitioner admitted with h/o traumatic right MCA territory infarct with brain stem contusion, status procedure right fronto temporo parietal decompressive craniectomy done under GA on SCCH-17 26 MVC No.6493/2022 18.10.2022 and came for bone replacement. These documents evidentiates that the petitioner was admitted in the hospital as an inpatient for the total period of 23 days. The petitioner underwent right fronto temporo parietal decompressive craniectomy. Petitioner was on mechanical ventilator in ICU. He required tracheostomy and was on Ryle's Tube feeds. With treatment he gradually improved and was weaned off the mechanical ventilator. He was discharged on 31.10.2022 with GCS of E4V5M6 and was still on Ryle's tube for feeding. Further the petitioner subsequently readmitted to same Abhaya Hospital on 13.02.2023 and discharged on 20.02.2023 and underwent Titanium mesh cranioplasty on 14.02.2023 and he continues OPD follow-up medications.
The evidence reveals that the petitioner has got hemiplageia and also got slurred occasional speech, behavioral changes, mild mental retardation and not able to judge or react to any particular situation. The evidence SCCH-17 27 MVC No.6493/2022 of PW.3 doctor in this regard supported the petitioner to prove the disability. The respondent No.2 insurance company does not chosen to examine any witnesses or any expert witnesses to impeach the credibility of the evidence of PW.3 doctor. The petitioner also produced Ex.P21 Neuropsychological assessment report and MMSE report. As per the said report the petitioner obtained an IQ of 58.5 (normal range 90-109). He has mild mental retardation. He is below average in thinking and reasoning. Further PW.3 stated that the patient's whole body disability is 30%. This disability is pertaining to whole body and is likely to be permanent.
It is very important that the evidence of PW.3 is subjected to cross-examination by the learned counsel for the respondent No.1. The petitioner sustained with head injury. The discharge summaries and the conditions of the patient as mentioned in discharge summary supported the evidence of PW.3- doctor. SCCH-17 28 MVC No.6493/2022
The respondents even after sufficient opportunities has not lead evidence in support of their contentions. The respondents has not examined any other competent doctors to discard the evidence of the PW.3 doctor. Hence, nothing is available on record to disbelieve the evidence of PW.3. By considering the nature of the injuries and period he spent to overcome the pain and other allied effects of the brain injuries sustained in the accident Rs.1,00,000/- may be awarded to the petitioner under this head.
b) Medical expenses: The petitioner has produced medical bills as per Ex.P9, amounting to Rs.5,30,710/-. These bills are not disputed by the respondents and no grounds are made out to disbelieving these bills. Looking to the facts and circumstances of the case in combined with the alleged injuries the petitioner is entitled for the reimbursement of the same by rounding of the same i.e., Rs.5,30,800/-.
SCCH-17 29 MVC No.6493/2022
c) Disability;- To prove the nature of injuries sustained by her the petitioner examined Dr.Shailesh A.V. Rao, Consultant Neurosurgeon, Padmashree Diagnostics, Bangalore as PW.3, through his Neurological assessment report is marked at Ex.P21. According to the evidence of this witness the petitioner sustained injuries and underwent treatment for multiple skull bone fractures with SDH and SAH in the cerebral hemisphere, brain stem contusion (head injury). On clinical observation, patient was making eye contact, talking occasionally with slurred speed. He has impaired memory and cognition. Neuropsychological assessment was done on 09.12.2023. He obtained an IQ of 69 (normal range 90-109). He has mild mental retardation. He is below average in thinking and reasoning. His frontal and parietal lobes were inadequate in functioning. His ideas score was 12, indicating a disability of 40-70%. Further PW.3 stated that the patient's whole body SCCH-17 30 MVC No.6493/2022 disability is 30%. This disability is pertaining to whole body and is likely to be permanent.
The Pw.3 is cross-examined at length by the learned counsel for the respondent No.1 insurance company. No expert evidence is lead by the respondent No.2-insurance company. No doubt that the petitioner's normal life is undisturbed by the accident. But as per the evidence of PW.3 doctor in the complex situation the petitioner cannot behave normally. As admitted by the Pw.3 doctor in his cross-examination the IQ level of the petitioner is low. By considering the same, for a person to lead his life in a normal way without depending on others, they have to behave and react normally in both normal and complex situation. The cognitive disability of the petitioner is assessed at 100%. Even though it is stated that the petitioner was doing agricultural activities no evidence is placed before this court to show the avocation of the petitioner. No evidence is available to show that she is removed from the said job. On considering the SCCH-17 31 MVC No.6493/2022 evidence available on record, the petitioner might have affected with his avocation disability at 100%.
The petitioner has produced his Aadhar card marked at Ex.P13, as per this document the year of birth of the petitioner is shown as 01.01.1986. The accident was occurred in the year-2022. So, as on the date of the accident the petitioner was aged 36 years.
As per Sarala Verma's case, the proper multiplier applicable to the age of petitioner is '15'. Hence, I inclined to award future loss of income at Rs.15,500/- X 12 X 15 X 100% =Rs.27,90,000/- which is the total loss of future income.
In Sidram vs Divisional Manager United India Insurance Co. Ltd. | 2022 LiveLaw (SC) 968, the Hon'ble supreme court has held as fallows:
"It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income,amounts for future prospects as well. We have come across SCCH-17 32 MVC No.6493/2022 many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement."
d) In the present case the petitioner has 100% avocational disability. Hence in view of the citation referred above the petitioner is entitle for loss of future prospectus at 40% which comes to Rs.11,16,000/-.
e) FOOD, NOURISHMENT AND CONVEYANCE ; As per Ex.P8 discharge summaries, the petitioner took treatment as inpatient for a period of 22 days. As per wound certificate marked at Ex.P5 the injuries sustained by the petitioner are grievous in nature. By considering the nature of the injuries and period she spent to overcome the pain and other allied effects of the accident Hence looking to the treatment taken by the petitioner and injuries sustained he is entitled for compensation of SCCH-17 33 MVC No.6493/2022 Rs.80,000/- towards food and nourishment, conveyance as the petitioner has to be in need of further care till his death.
f) Towards loss of amenities and enjoyment of life:
The petitioner admitted to the hospital for the injuries sustained by him. The petitioner sustained brain injuries and he is not fit enough like earlier and leading the life by depending on others. This might certainly have deprived him of the basic comforts and enjoyment. Therefore, it is just and proper to award a reasonable sum of Rs.1,00,000/- under this head.
g)Towards future medical expenses: No evidence is available to hold that there is a need of future medical treatments to the petitioner. But the petitioner sustained head injuries and underwent with a operation to her head. As per the evidence of PW.2, the petitioner still facing few problems. In general for future medical expenses, it is necessary to award Rs.40,000/- under this head.SCCH-17 34 MVC No.6493/2022
h) Loss of income during laid up period: In this case the disability of the petitioner is considered at 100% and the multiplier is applied accordingly as such the loss of income during laid up period is not considered in lieu of petitioner is entitled for the compensation for 100% disability.
i) ATTENDANT CHARGES DURING HOSPITALIZATION: In the petition itself the petitioner has averred that the petitioner was initially admitted to Chelur Government Hospital, then shifted to Tumakuru Government Hospital and then shifted to NIMHANS Hospital, Bengaluru and thereafter petitioner was shifted to Abhaya Hospital. As per Ex.P6 wound certificate the CT Scan of the brain of the petitioner depicts that the petitioner has got multiple skull bone fractures with SDH and SAH in the cerebral hemisphere, brain stem contusion (head injury). As per the discharge summaries marked at Ex.P8 the petitioner initially admitted on 17.10.2022 and discharged on 31.10.2022. Thereafter SCCH-17 35 MVC No.6493/2022 once again he was admitted in Abhaya Hospital on
13.02.2023 and discharged on 20.02.2023. On the second time the petitioner admitted with h/o traumatic right MCA territory infarct with brain stem contusion, status procedure right fronto temporo parietal decompressive craniectomy done under GA on 18.10.2022 and came for bone replacement. These documents evidentiates that the petitioner was admitted in the hospital as an inpatient for the total period of 23 days. By considering the same the attendant charges at Rs.1,000/- per day i.e.,Rs.23,000/- in total is awarded under this head.
(j) FUTURE ATTENDANT CHARGES:
It is clear that the petitioner has suffered Hemiplegia and the evidence reveals that he has got severe brain injury. The injury sustained by the petitioner made the petitioner to be dependent on others in his remaining life. which makes it obvious that he would need the assistance of an entire through out his SCCH-17 36 MVC No.6493/2022 life. Hence attendant charges is determined as ₹.150/-
per day. In Kajal Vs. Jaidish Chand reported in 2020 SCC Online SC 127, it is held that it would be appropriate to adopt the system of multiplier to award the compensation under the head 'Attendant Charges' as the claimant would require the care of an attendant for the rest of his life. As such this court is of the opinion that the claimant is entitled for 'Attendant Charges' at the rate of ₹.150 per day which is quantified at ₹.8,10,000/- (₹.150 x 30 x 12 x 15). Therefore, it is just and reasonable to award ₹.8,10,000/- towards future attendant charges.
23. The learned counsel for the petitioner relied on the judgment reported in 2021 ACJ 777 of Hon'ble High Court of Jammu & Kashmir between Amith Choudhary Vs. Oriental Insurance Co. Ltd. & others In my humble opinion the above judgment is not applicable to the present case on hand. is passed while dealing with workmen's Compensation Act, 1923 and the SCCH-17 37 MVC No.6493/2022 facts and circumstances of present case is different on the above judgment. Hence, the same is not applicable to the present case on hand.
24. The learned counsel for petitioner further relied on judgment reported in 2021 ACJ 1020 of Hon'ble High Court of Karnataka, Kalburagi Bench between Nagaraj V/s Akbar Ali Didagurr & another by arguing the heads to be considered while granting the compensation. The heads covered under the said judgment is also considered in this judgment by awarding the compensation under the said heads.
Thus, the petitioner is entitled for compensation under the following heads:
Sl. Nature of Compensation Amount
No.
(a) Towards pain and agony 1,00,000/-
b) Towards Medical Expenses Rs. 5,30,800/-
c) Towards Disability Rs.27,90,000/-
d) Towards food, nourishment Rs. 80,000/-
and conveyance
e) Towards Loss of Future Rs. 11,16,000/-
SCCH-17 38 MVC No.6493/2022
Prospects
f) Towards loss of amenities Rs. 1,00,000/-
g) Towards future medical Rs. 40,000/-
expenses
h) Towards loss of income NIL
during laid up period
i) Towards Attendant charges Rs. 23,000/-
during hospitalization
j) Towards future attendant Rs. 8,10,000/-
charges.
Total Rs.55,89,800/-
25. Liability:- According to the petitioner the
respondent No.1 & 2 are the insurer and owner of the offending vehicle. The respondent No.2 in its objection statement has admitted the issuance of policy to the motor cycle bearing No. KA-01-JC-5651 and the policy was in force at the time of accident. The respondent No.2 being the owner remained exparte.
26. In the written statement of the respondent No.2- insurance company admitted the issuance of insurance to the offending motorcycle bearing No. KA-06- SCCH-17 39 MVC No.6493/2022 HM-2367. No evidence is placed to show the violation of the policy conditions by the insured. The respondent No.1 and 2 being the owner and insurer of offending motorcycle is liable to pay compensation and the liability of the respondent No.1 shall be indemnified by the respondent No.2. Hence, the respondent No.2 is liable to pay the compensation to the petitioner. The petitioner is entitle for compensation with interest at the rate of 6% p.a., Accordingly, this issue answered partly in the affirmative.
ISSUE NO.3:
27. For the foregoing reasons, I proceed to pass the following:
O RDE R The petition filed by the petitioner U/s. 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.55,89,800/-
(Rupees Fifty five lakhs eighty nine thousand eight hundred only).SCCH-17 40 MVC No.6493/2022
The petitioner is entitled with interest at the rate of 6% p.a., from the date of petition till the realization from respondents on the amount of compensation except the amount awarded under the head of future prospects and future medical expenses.
The respondent No.2 is liable to pay compensation to the petitioner within 60 days from the date of this judgment.
Out of total compensation amount awarded to the Petitioner, 25% of the same to be released in favour of the natural guardian/next friend of the petitioner through E-payment on proper identification and remaining 75% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in the name of the petitioner.
Advocate fee is fixed at 1,500/-.
Draw up award accordingly.
(Dictated to the Stenographer directly on the computer, corrected by me and then pronounced in the open court on this the 1st day of October, 2024) SCCH-17 41 MVC No.6493/2022 (Kanchi Mayanna Goutam) XIX ADDL.JUDGE, Court of Small Causes, BENGALURU.
ANNEXURE List of witnesses examined for petitioners:
PW.1 M.G. Kavya PW.2 Venkatesh PW.3 Dr. Shailesh A.V. Rao
List of documents marked on behalf of the petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Statement recorded by police from
the petitioner
Ex.P4 True copy of Spot Mahazar
Ex.P5 True copy of IMV Report
Ex.P6 True copy of Wound Certificate
Ex.P7 True copy of Charge Sheet
Ex.P8 Discharge Summary
Ex.P9 Medical Bills
Ex.P10 Medical Prescriptions
Ex.P11 X-ray Film
Ex.P12 CT Scan Film
Ex.P13 Notarized copies of Aadhar Cards and Ration Card Ex.P14 Authorization Letter Ex.P15 Police Intimation Ex.P16 MLC Register Extract SCCH-17 42 MVC No.6493/2022 Ex.P17 Case Sheet Ex.P18 X-ray Films Ex.P19 CT Scan Films Ex.P20 OPD records Ex.P21 Neuro Psychological assessment report Ex.P22 MMSE report Ex.P23 X-ray report List of witnesses examined for Respondents:
NIL List of documents marked on behalf of the Respondents :
NIL XIX ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
Digitally
signed by
KANCHI
KANCHI MAYANNA
MAYANNA GOUTAM
GOUTAM Date:
2024.10.05
16:13:40
+0530