Bangalore District Court
Suvin Somanna.C.T vs Tata Aig Gen Ins Co Ltd on 1 June, 2024
KABC020222372021
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 1st DAY OF JUNE - 2024
PRESENT: Sri. Aalok. A.N
B.B.A. LL.B,
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
MVC. No.3605/2021
Petitioner : Sri. Suvin Somanna. C.T,
S/o C.P. Thimmaiah,
Aged about 22 years,
R/at : Kalooru Village,
Kodagu, Madikeri Taluk,
Kodagu District-571201.
(By Advocate: Shankar Prasad. M.B)
v/s
Respondent/s : 1. Tata AIG Gen.Ins.Co.Ltd.,
5th Floor, West Entrance,
Khanija Bhavan,
Race Course Road,
Bengaluru-560001.
(Policy No.3100957954)
By Advocate: Sri.T. Kodanda Rama)
2. Mr. Felixro. D,
S/o David,
Glory Bhavan,
SCCH-23 2 MVC No.3605/2021
Santhinagar,
Elappara Post,
Idukki District-685501
(RC owner)
(By Advocate: Sri. H.K. Singh)
3. Mrs. Khadeeja Kutty,
Parakuzhiyil House,
Chunkappara Post,
Kottangal,
Mallappally,
Pathanamitta,
Kerala-686547
(Insured Owner)
(By Advocate: Sri. H.K. Singh)
JUDGMENT
This claim petition is filed under section 166 of the M.V. Act, seeking compensation for the injuries sustained in a road traffic accident.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioner that on ill fated day i.e.., on 09.08.2021 at about 7.45 p.m, when the petitioner was riding the scooter bearing Reg.No.KA-03-JV-2904, slowly and cautiously by observing all the traffic rules and regulations when he came near Prestige Apartments, Horamavu Main road, Bengaluru City at that time driver of car bearing Reg.No.KL-07-
BP-7308 which was driven by its driver in rash and negligent manner and suddenly took right 'U' turn so as to endanger the human life and dashed against the left side of the petitioner's SCCH-23 3 MVC No.3605/2021 motorcycle. As a result of impact, petitioner sustained injuries all over the body. It is further submitted that, after the accident he was shifted to Trust-In Hospital wherein he took treatment as an inpatient and undergone several examinations and he was discharged with an advice to regular follow-up treatment. It is stoutly pleaded that, petitioner has spent more than Rs.1,50,000/- towards medical, conveyance, nourishment and other incidental charges. It is further submitted that, the petitioner was hale and healthy and working as Game Tester and earning a sum of Rs.20,000/- p.m., and due to the accidental injuries he is unable to work as such he suffered both financially and emotionally. Further it is specifically urged that, the accident happened because of rash and negligent driving of the driver of Car. The respondent No.1 to 3 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
3. Notice was duly served to respondent No.2 & 3Respondent No.2 & 3 appeared through their counsel, they failed to contest the matter by filing the written statement.
4. After service of notice respondent No.1 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.1 admitting the issuance of insurance policy in respect of car bearing Reg.No.KL-07-BP-7308. However the liability if any is SCCH-23 4 MVC No.3605/2021 pleaded to be subject to the terms & conditions of the policy. Further the respondent No.1 has contended that, the owner and the concerned police have not complied the mandatory provision of 64-VB of Insurance Act and Sections 134(c) and 158(6) of M.V.Act. It is contended that the RC of the insured vehicle is stands in the name of respondent No.2 and the policy was stands in the name of respondent No.3 and they have not intimated about the transfer of ownership of the said vehicle to the insured. Hence there is no insurable interest in any of the respondents No.2 and 3 and there is no enforceable contract between the respondent No.1 and other respondents. This respondent specifically and empathically denied the occurrence, mode and manner of accident and also involvement of the vehicle in the accident. Negligence on the part of the driver of its insured car is denied by this respondent. Per contra it is alleged that the rider of motorcycle / petitioner who was riding the said vehicle without having a proper lookout at the vehicular movement on the road was solely responsible for the occurrence of the accident. Without prejudice to the said contention it is averred that the driver of the car and rider of the vehicle /petitioner did not possess valid & effective DL as on the date of accident. Despite knowing the said fact the owners thereof had handed over its possession to such a driver. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him.
SCCH-23 5 MVC No.3605/2021Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of above pleadings the following issues were framed :
ISSUES
1) Whether the petitioner proves that he sustained injuries in a road traffic accident that occurred on 09.08.2021 at about 7.45 p.m., near Prestige Group Apartment, Horamavu Main Road, Bengaluru City due to actionable negligence of the driver of car bearing Reg.No.KL-07-BP-7308 ?
2) Whether the petitioner is entitled for compensation ? If so, to what amount and from whom ?
3) What order or award ?
6. The petitioner examined himself as PW.1. Ex's.P1 to 15 and Ex.P.18 and 19 were marked on his behalf. Dr.S.A. Somashekar, Orthopedic Surgeon at Bowring and Lady Curzon Hospital was examined as PW.2. Ex.P16 & 17 were marked through him. The respondent No.1 did not choose to lead any evidence on its behalf.
7. Heard erudite counsel for the petitioner and respondent No.1 counsel on merits. Perused the entire materials placed on record.
8. This tribunal answers to the above issues are as follows :-
Issue No.1 : In the Affirmative SCCH-23 6 MVC No.3605/2021 Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following :
REASONS
9. ISSUE NO.1: The petitioner has knocked the doors of justice with a relief to grant a compensation of an amount to the tune of Rs.10 lakhs together. The case of the petitioner lies an narrow compass as to claiming of compensation amount for injuries sustained by him in a Road Traffic Accident. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye view of the case of petitioner in a nutshell.
10. It is the case of petitioner that, on 09.08.2021 at about 7.45 p.m, when the petitioner was riding the scooter bearing Reg.No.KA-03-JV-2904, slowly and cautiously by observing all the traffic rules and regulations when he came near Prestige Apartments, Horamavu Main road, Bengaluru City at that time driver of car bearing Reg.No.KL-07-BP-7308 which was driven by its driver in rash and negligent manner and suddenly took right U turn so as to endanger the human life and dashed against the left side of the petitioner's motorcycle.
As a result of impact, petitioner sustained injuries all over the body. It is further submitted that, after the accident he was shifted to Truth-In Hospital wherein he took treatment as an inpatient and undergone several examinations and he was discharged with an advice to regular follow-up treatment. It is stoutly pleaded that, petitioner has spent more than SCCH-23 7 MVC No.3605/2021 Rs.1,50,000/- towards medical, conveyance, nourishment and other incidental charges. It is further submitted that, the petitioner was hale and healthy and working as Game Tester in a private company and earning a sum of Rs.20,000/- p.m., and due to the accidental injuries he is unable to work as such he suffered both financially and emotionally. Further it is specifically urged that, the accident happened because of rash and negligent driving of the driver of Car. The respondent No.1 to 3 are jointly and severally liable to pay compensation, as such prayed to grant a compensation amount.
11. In support of case of petitioner himself stepped into the witness box and filed his affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex.P1 to Ex.P15 and Ex.P.18 & 19 documents. Further more the petitioner also got examined the doctor who was assessed the disability is examined as PW.2 and through him Ex.P.16 & 17 are marked. In order to falsify the case of the petitioner and to substantiate the defense of the respondent no.1, their counsel had cross- examined PW1 & PW2 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.2 had attacked the case of the petitioner on various prisms known to fact and law. The first and foremost contention urged by the respondent No.1 is that, there is no negligence on the part of the driver of the car but the accident happened because of the shear negligence on the part of the SCCH-23 8 MVC No.3605/2021 petitioner himself. Further urged that theere is one day delay in setting rthe criminal law into motion. In support of these contentions the respondent No.2 did not choose to lead any evidence.
13. On dissection of materials placed on record, after marshaling of facts in issue and after hearing erudite counsel appearing for combating parties, this Tribunal opines that this issue is pregmented with inner issues such as :
1) Whether delay of 1 day in filing the FIS is fatal to the case of the petitioner ?
2) Whether there is a negligence on the part of the petitioner himself ?
14. Now let me unfurl each of the contention urged by the rival parties in the light of oral and documentary proof. It is the specific contention of the petitioner that, he has sustained grievous injuries in the RTA on 09.08.2021. The Criminal law was set into motion on 10.08.2021 at about 2.00. p.m, which is reflected in Ex.P.2 FIS. It could be borne out from the FIS itself that injured has lodges the said complaint before the Trust-In hospital authorities. It could be borne out from the medical records itself that injured severely injured in RTA. When the petitioner is fighting for his life, the relatives of the petitioner cannot be expected to set criminal law in motion. The SCCH-23 9 MVC No.3605/2021 predominant responsibility of the family of the injured will be saving the kith and kin's life rather fighting for justice. When such being the case this court cannot found fault with the mere delay of 1 day in lodging FIR. In this regard it is relevant to rely on the decision in Ravi v. Badrinarayan and others reported in AIR 2011 SC 1226, wherein the Hon'ble Apex Court has observed as hereunder :
"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 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."SCCH-23 10 MVC No.3605/2021
(Emphasis supplied by me).
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 case cannot be dismissed merely on that ground. The ratio decidendi laid down by Hon'ble Apex Court is aptly applicable to the facts of the instant case. The petitioner had explained the delay caused. The petitioner clearly demonstrated as to the involvement of the insured vehicle in the accident.
15. Further, it is not in dispute that the offending vehicle is insured by respondent No.1 insurance company. Further it is also an undisputed fact that the policy was valid as on the date of accident. It is specifically urged by the petitioner that, the accident caused because of negligence on the part of driver of the car. On the other hand the respondent No.1 imputes negligence on the part of petitioner who himself was rider of motorcycle at the time of accident.
SCCH-23 11 MVC No.3605/202116. This issue revolves round the sphere and ambit as to the alleged rash and negligence on the part of the driver of offending vehicle. The factum of negligence has to be proved like any other matter in issue. Before dwelling into analyzing the factum of alleged negligence it is relevant to have the conceptual aspects pertaining to factum of negligence. There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant's act.SCCH-23 12 MVC No.3605/2021
Negligence means a breach of duty caused by omission to do something which has reasonable man guide by those consideration which ordinarily regulated conduct of human affairs would do which a prudent man would not do. In common prevalence negligence connoted to the want of proper care and the rashness conveys the idea of recklessness or the doing of an act without due consideration.
17. Reverting back to the factual matrix, the petitioner in order to prove the factum of negligence has produced Ex.P.3 and 4 being spot Sketch and Spot mahazar. Now let me analyze the contents of these documents. On close perusal of said documents it is clearly forthcoming that car bearing No.KL-07- BP-7308 came from Horamavu towards Kalkere and he suddenly took right 'U' turn towards Horamavu side without obsrerving on coming vehicles on the road and dashed to the petitioner's motorcycle. Added more there was nothing on record placed by the respondent No.1 to believe that, Ex.P.10 chargesheet filed by the police for the offences punishable u/s 279 and 338 of IPC in crime No.90/2021 of K.R. Puram Traffic Police is defective or collusive. The whole anchorage of the defence of the respondent No.1 is on the bedrock of the contributory negligence on the part of petitioner himself. But when this court gave its anxious consideration with astuteness to Ex.P.3 Spot Sketch and Ex.P.4 spot Mahazar it could gather that the said accident had taken place in a U turn situated on Horamamu - Kalkere road road and the driver of the car took SCCH-23 13 MVC No.3605/2021 sudden right 'U' turn without giving any indication to the coming vehicles. If the driver of vehicle was moving on a normal speed then he could have certainly avoided the accident. Further the respondent No.1 has denied the cause of the accident, but it has not lead any cogent evidence to prove its defence or to disprove the evidence led by the petitioner. Mere taking of defence is not sufficient to dislodge the testimony of other side, which has no sanctity in the eyes of Law. Mere self- serving rather self-proclaimed statement of the respondent cannot be trusted as a gospel truth. Further Ex.P6 IMV Report goes to show that at the time of inspection both vehicles involved in the accident and sustained damages as detailed out in the said report. Be that as it may, the IMV inspector has mentioned that he tested both the vehicles on road and found that their brake systems were intact. Thereby he opined that the accident was not due to any mechanical defects of the said vehicles. Therefore the driver of car did not have sufficient cause to cause the accident. The fact that yet he went and dashed against the petitioner vehicle drawing an inference that he drive the vehicle in rash and negligent manner. In the instant case on hand, having regard to the other circumstances and other documentary proof it is crystal clear that there was absolutely no negligence on the part of the car.
SCCH-23 14 MVC No.3605/202118. It is necessary to reassert that in a claim for compensation filed under Section 166 of Motor Vehicles Act, 1988, the claimant is expected to prove the incident 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 driver of car is not examined to show that there was no negligence on his part and even otherwise the IO, as already observed, has clearly opined that the accident occurred only due to the fault of the driver of car and he was charge sheeted.
SCCH-23 15 MVC No.3605/202119. Though PW.1 cross-examined at length by the respondent No.1 but he withstood the rigour of cross- examination. This court is aware of the fact the chargesheet cannot be trusted as a holy document to come to the conclusion of the negligence. But in the instant case having regard to the other materials placed on record and other surrounding circumstances it is it is clearly forthcoming that the negligence on the part of the driver of car. Consequently this tribunal hold that the accident is proved to have been caused due to the actionable negligence of the driver of car. With this observation issue No.1 is answered as 'In the Affirmative'.
20. ISSUE NO.2 :As already held herein above, the petitioner proved that he has sustained injuries in RTA which is caused by the vehicle belonging to respondent No.2 and insured with the respondent no.1. 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 SCCH-23 16 MVC No.3605/2021 or documentary evidence. Whereas for 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 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.
21. 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.
22. This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioner has got exhibited his Aadhar card and DL at Ex.P18 & 19. In Aadhar card and DL his year of birth is reflected as 12.05.1999. This indicates that he was aged 22 years on the date of accident.
SCCH-23 17 MVC No.3605/202123. It is specifically urged by the petitioner that, he was working as Game Testing at Private Company and earning sum of Rs.20,000/- p.m. In order to substantiate the above said fact absolutely no string of evidence is produced before this court. When such being the case mere self serving and self proclaimed statement given by the petitioner without any string of either documentary or oral evidence cannot be trusted as to gospel truth. Further it is also admitted during the course of cross- examination of PW1 that he has not produced any documents to show the income and avocation. It is trite law that, when the petitioner has failed to prove the income, the income of the petitioner has to be taken into consideration as notional income. The next moot question to be considered is as to how the notional income has to be considered in the eye of law.
24. It is relevant to rely on a decision of Hon'ble High Court of Karnataka rendered on Division Bench in the case of Ananda v/s Arjun and another in MFA.No.101144/2020 (MV) dated.05.07.2023. Wherein the Hon'ble High Court of Karnataka has laid down the following principles in para No.8(b) are as here under :
"(b) The accident is of the year 2017. The Tribunal has assessed the income of the deceased at Rs.7,000/- per month as against the claim of Rs.2,50,000/- per annum. To substantiate the said claim, the injured claimant has not placed any material on record, it is for the Courts and Tribunals to assess the income notionally. The notional income fixed by the Karnataka State SCCH-23 18 MVC No.3605/2021 Legal Services Authority for the accident of the year 2017 is Rs.10,250/-. In the absence of any material produced by the claimant to prove his income, it is appropriate to assess the notional income of the injured claimant at Rs.10,250/- per month, and the same is assessed as the monthly income of the injured claimant"
As such this court is taking the notional income as prescribed by the Karnataka Legal Service Authority, Bengaluru. Therefore in view of the above decision, the accident was occurred on 09.08.2021. Therefore, Rs.15,000/- has to be taken into consideration as monthly income of the petitioner.
25. As per the medical records the petitioner has sustained the following injuries : (i) Fracture right distal eDH the radius commuted fracture (ii) Bleeding abrassion over left knee joint. It is needless to say that the injury No.1 is grievous and injury No.2 is simple in nature. The photo copy of Surgical discharge summary as per Ex.P.12 of Trust-In Hospital, Bengaluru indicates that the petitioner was treated as an inpatient in the said hospital for the period from 10.08.2021 to 12.08.2021 (3 days in total). During the course of treatment he had undergone surgery in the form of : ORIF with DVR plate (volar Plate). Therefore he is entitled for compensation under the following heads :
26. It is the specific case of the petitioner that, owing to the accidental injuries he has become disabled and has thereby SCCH-23 19 MVC No.3605/2021 lost his earning capacity. Therefore he got examined Dr.RS.A. Somashekara as PW.2 who stated that on clinical examination conducted by him, he found that petitioner has sustained total permanent physical disability of 34% to the right upper limb and 17% disability to the whole body. It is elicited during the course of cross examination PW.2 categorically admitted that there is an improvement in the state of petitioner from the date of discharge and when he assessed the disability. Further he admitted that in discharge summary it is mentioned that the condition of the patient is satisfactory. Further fractures are united and there is no fractures in the joint but there is fracture near the joint. He further admitted that there is no neurological deficit and he had deposed with regard to dominant hand based on the information given by the patient. Further admitted that, with some difficulty the petitioner can do his work. When such is the case physical disability assessed by the medical expert is on the higher side. Be that as it may, the law is well settled that it is the impact of the physical disability on the particular avocation of the petitioner which is relevant for the purpose of assessment of compensation under the head of loss of future income as held by the Hon'ble Apex Court in (2011) 1 SCC 343 between Rajkumar V/s. Ajaykumar and another, wherein the Hon'ble Supreme Court held as follows;
Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means SCCH-23 20 MVC No.3605/2021 that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he SCCH-23 21 MVC No.3605/2021 was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
27. By applying the said precedent to the present case on hand, from the petition averments it could be culled out that SCCH-23 22 MVC No.3605/2021 petitioner is working as Game tester. Which means to say the petitioner has to sit in a given place for long hours. When such is the case with a injuries sustained by the petitioner he cannot do his work effectively, as such his efficiency in work will decrease and it indirectly affect his income. Considering the nature of injuries, line of treatment and on appreciation of the clinical findings noted by the doctor, the possibility of the fact that the petitioner may be having economical or functional disability to the extent of 11%, cannot be ruled out. Therefore, this Tribunal consider the functional disability of the petitioner at 11%. As already discussed above the petitioner has proved that the accident took place due to the actionable negligence of the rider of the motorcycle. Therefore he is entitled for compensation under the following heads :
28. ATTENDANT CHARGES, EXTRA NUTRITIOUS FOOD & CONVEYANCE CHARGES : The period of hospitalization of 3 days is proved as per the contents of discharge summaries. During his stay in the hospital the petitioner would have incurred expenses towards attendant charges as some family member of the petitioner would have accompanied him to the hospital to take his care by leaving their duties. During the aforesaid period the petitioner might have also spent a considerable amount towards special diet, transportation and nutrition. Considering the rate of inflation and rise in the price SCCH-23 23 MVC No.3605/2021 index, the same is quantified at Rs.2,000/- per day and a sum of Rs.6,000/- (2,000 X 3) is awarded under this head.
29. PAIN & SUFFERINGS : On account of the accidental injuries the petitioner would have had undergone pain and mental agony. The documents discloses that petitioner had sustained injury to Comminuted displaced intra-articular fracture distal End radius right sided. Having regard to the fractures suffered by the petitioner to weight bearing bones and such other attending circumstances. Thus this Tribunal awards a sum of Rs.60,000/- under this head.
30. LOSS OF INCOME DURING LAID-UP PERIOD:
Considering the nature of injuries, treatment given and duration of his stay in the hospital, it is quite natural that petitioner could not have carried out his avocation for atleast 4 months. Thus by taking into account the notional income of the petitioner, this Tribunal awards a sum of Rs.60,000/- (15,000 X
4) under this head.
31. MEDICAL EXPENSES : As per the bills marked at Ex.P10, the petitioner has spent Rs.1,09,036/- towards medical expenses. Nothing worthwhile was elicited during the course of her cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.1,09,036/- which is rounded off to Rs.1,09,000/- towards medical expenses.
32. LOSS OF FUTURE INCOME DUE TO DISABILITY: As per Sarla Verma's case, the appropriate multiplier applicable is SCCH-23 24 MVC No.3605/2021 '18'. This Tribunal has already assessed the notional income of the petitioner at Rs.15,000/- p.m. Hence a sum of Rs.3,56,400/- (Rs.15,000 X 12 X 18 X 11%/100) is awarded under this head.
33. LOSS OF FUTURE AMENITIES AND HAPPINESS: The disability referred above would have necessarily caused physical deformity with which the petitioner has to live the rest of his life. Hence a sum of Rs.60,000/- is awarded under this head.
34. FUTURE MEDICAL EXPENSES AND OTHER INCIDENTAL EXPENSES :The doctor witness stated that the petitioner has to undergo one more surgery for removal of implants for which he may require Rs.40,000/-. No estimation is produced to show the future medical expenses. But undisputedly petitioner has to undergo surgery for removal of implants, for which she has to necessarily bear certain expenses. Thus she is entitled to Rs.25,000/- towards future medical and other incidental expenses.
35. EXPENSES INCURRED TOWARDS DAMAGES CAUSED TO THE VEHICLE: PW.1 has deposed that in the accident his motorcycle was badly damaged and he has spent more than Rs.50,000/- towards its repair. In order to substantiate this aspect the petitioner has produced the tax invoice of Avant Grade Motor which is marked as Ex.P.15. On close of the same it reflects that the petitioner has spent Rs.30,559/- for the repair of his motorcycle. Nothing worthwhile SCCH-23 25 MVC No.3605/2021 was elicited during the course of his cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.30,600/- towards expenses incurred towards damages caused to the vehicles
36. The calculation table stands as follows :
1 Attendant charges, extra nutritious : 6,000-00 food & conveyance charges 2 Pain & sufferings : 60,000-00 3 Loss of income during laid-up period : 60,000-00 4 Medical expenses : 1,09,000-00 5 Loss of future income due to disability : 3,56,400-00 6 Loss of future amenities & happiness : 60,000-00 7 Future medical and other incidental : 25,000-00 expenses 8 Expenses incurred towards damages : 30,600-00 caused to the vehicle.
Total 7,07,000-00
37. REGARDING INTEREST & LIABILITY: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% per annum is awarded it would meet the ends of justice.
38. There is no dispute with regard to the issuance of insurance policy and its validity as on the date of accident.
Therefore, the respondent No.1 being the insurer and respondent No.2 and 3 being the RC owner and policy holder of the car bearing Reg.No.KL-07-BP-7308 thereof are jointly and severally liable to pay the aforesaid award amount to the SCCH-23 26 MVC No.3605/2021 petitioner together with interest @ 6% per annum from the date of claim petition till realization of the entire amount. However the respondent No.1 being the insurer is primarily liable to satisfy the award amount together with interest within one month from the date of this order. Hence this issue is answered as 'Partly in the Affirmative'.
39. ISSUE NO.3 : In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed under Section 166 of M.V. Act 1988, is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.7,07,000/- (Excluding future medical expenses) with interest at the rate of 6% p.a., from the date of claim petition till realization of the entire award amount.
The respondent No.1 is liable to pay and directed to deposit the compensation amount within a period of one month from the date of award.
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of SCCH-23 27 MVC No.3605/2021 the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 1st day of June-2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioner/s:
P.W.1 : Sri. C.T. Suvin Somanna P.W.2 : Dr. S. A. Somashekara
List of documents got marked for the petitioner/s:
Ex.P.1 True copy of FIR Ex.P.2 True copy of Complaint Ex.P.3 True copy of Sketch Ex.P.4 True copy of Spot Mahazar Ex.P.5 True copy of Wound certificate Ex.P.6 True copy of IMV Report Ex.P.7 True copy of Notice issued U/S 133 of IMV Act Ex.P.8 True copy of Reply to the above notice Ex.P.9 True copy of police intimation Ex.P.10 True copy of police Chargesheet Ex.P.11 X-ray SCCH-23 28 MVC No.3605/2021 Ex.P.12 Surgical Discharge summary Ex.P.13 7 Medical bills amounting to Rs.1,09,036/- Ex.P.14 Advance paid receipts (2 in no's) total amounting to Rs.70,000/- Ex.P.15 Vehicle repair bill for Rs.30,559/- Ex.P.16 Out patient record Ex.P.17 X-ray sheet Ex.P.18 Notarized copy of Aadhar Card Ex.P.19 Notarized copy of Driving Licence.
List of witnesses examined for the respondent/s:
- None -
List of documents marked for the respondent/s:
- Nil -
(Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Bengaluru.