Bangalore District Court
Devaraju Alias Devaraju B.M vs Sathisha on 13 February, 2024
KABC020057272021
COURT OF SMALL CAUSES, AT BENGALURU. (SCCH25)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
XXIII Additional Small Causes Judge, Bengaluru.
DATED THIS THE 13TH DAY OF FEBRUARY 2024
MVC No.962/2021
PETITIONER: Sri. Devaraju
@ Devaraju B.M.
S/o.Malaiah,
Aged about 36 years,
R/at Bommahanalli Village,
Aralikere Post, Kasaba Hobli,
Turuvekere Taluk,
Tumkur District - 572 227.
(By Sri.N.Shivaram,
Advocate/s.)
V/S
RESPONDENTS: 1. Sri. Sathisha
S/o Venkatesha,
Major, R/at 6th Ward,
4th Cross, Indiranagar,
Turuvekere Town,
Tumkur - 572 227.
(RC Owner of Motorcycle
bearing No.KA44Q8579)
(By Sri.Devaraja K.,
Advocate.)
SCCH - 25 2 MVC 962/2021
2. The Regional Manager
United India Gen. Ins. Co.
Ltd.,
Regional Office,
Motor TP Hub,
Krishi Bhavana,
5th and 6th Floor,
Hudson Circle,
Bangalore - 560 001.
(By Sri.A.Arun Kumar,
Advocate.)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation of Rs.20,00,000/ for the injuries sustained by him in a road accident dated 27.01.2021.
2. The case of the Petitioner in brief is that:
On 27.01.2021 at about 8.00pm, the petitioner was proceeding in his motorcycle bearing No.KA44K2520 from Thuruvekere Town to his village in a careful manner and when he reached near Town Club, TuruvekereMaya Sandra Road, on National High-Way 151A Road, another motorcycle bearing No.KA44Q8579 came from back side and dashed the petitioner. Due to impact the petitioner fell down and SCCH - 25 3 MVC 962/2021 sustained grievous injuries over his femur shaft. Immediately public shifted him to Government hospital, Kunigal, wherein after giving first aid treatment he was shifted to M.C. Orthopaedic, Arthroscopy and Joint Replacement Center at Tumkur. He underwent surgery and other treatment in the said hospital, spent more than Rs.5,00,000/ towards medical expenses. Due to the injuries, he is suffering from disability and he is unable to work as supplier at the hotel and he has lost the monthly income of Rs.15,000/ per month. The Jurisdictional Turuvekere police have registered a case against the rider of the motorcycle in Cr.No.018/2021 p/u/Secs.279, 337 and 338 of IPC. The 1st respondent being the RC owner and 2nd respondent being the insurer of the said offending motorcycle bearing Reg.No.KA44Q8579 are jointly and severally liable to pay compensation to the petitioner.
Hence, this petition.
3. In response to notice issued by this tribunal, the Respondents appeared through their respective counsels. But the respondent No.2 alone filed written statement. SCCH - 25 4 MVC 962/2021
4. The objections of the Respondent No.2:
This respondent admits the issuance of the policy to the respondent No.1 with respect to the said motorcycle. But, denied all the other averments of the petition. It has stated that the offending motorcycle rider did not have a valid and effective DL, permit and FC. It has also contended that the petitioner also did not have valid DL and was drunk at the time of accident. It has contended that the accident occurred due to the negligence of the petitioner and the petitioner filed a false case against the offending vehicle in collusion with the police and so there is delay in FIR. This respondent denied the accident, involvement of the insured vehicle in the accident, age, occupation. The respondent No.2 contended that the compensation claimed by the petitioner is excessive, arbitrary and disproportionate. Therefore, prayed for dismissal of the petition against them.
5. On the above rival contentions of the parties, this court has framed the following issues: SCCH - 25 5 MVC 962/2021
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent riding by the rider of motorcycle bearing Reg. No.KA44Q 8579 and in the said accident petitioner sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom payable?
3. What order or award?
6. The Petitioner in order to prove his case, has got examined Three witnesses as PWs.1 to 3 and has got marked 17 documents as per Exs.P.1 to P.17. On the other side, the Respondent No.2 has examined HC 68, Turuvekere Police as RW.1 and got marked Ex.R.1.
7. Heard the arguments of the learned counsels for both the parties.
8. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: SCCH - 25 6 MVC 962/2021 Issue No.1: In the affirmative, Issue No.2: In the affirmative, Issue No.3: As per the final order, for the following: REASONS
9. Issue No.1:
In order to prove that the accident occurred due to the actionable negligence on the part of the rider of the offending motorcycle, the petitioner got examined himself as PW.1 and has got marked documents as per Exs.P.1 to P.6. During his crossexamination, except the fact that he did not have a DL at the time of riding, nothing to show the absence of negligence on the part of the offending vehicle rider is elicited. He got examined the MRO of M.C.Orthopaedic, Arthroscopy and joint replacement Center as Pw.3 and got marked 4 documents as per Exs.P.14 to 17, authorization letter, MLC register extract and Two inpatient records. During his cross examination nothing worthwhile is elicited. The respondents have contended that the petitioner did not have DL and he was drunk at the time of accident. In support of their contention they got examined Investigation SCCH - 25 7 MVC 962/2021 Officer of the Case as RW.1 and got marked the entire charge sheet as Ex.R.1. During his cross examination by the Respondent No.2 he has admitted that they collect all documents during investigation. He has also stated that he did not give any notice u/Sec.133 of MV Act to the rider/Owner of TVS vehicle.
10. As per Ex.P.1 the FIR was registered on 28.01.2021 at 2.00pm whereas, the accident occurred on 27.01.2021 at 8.00pm. The Mahazar was also conducted soon after the registration of FIR on 28.01.2021. As per the wound certificate at Ex.P.4 the petitioner has suffered fracture of the left femur. As per the MVA report at Ex.P.5 the damages suffered by the offending vehicle is only to the front whereas the TVS bike has suffered damages to the front as well as the back. This shows that the offending vehicle has hit the bike of the petitioner from behind. As per Ex.P.15 MLC register extract also shows that the petitioner was taken to the hospital on 27.01.2021 at 11.45pm on the alleged history of RTA on 27.01.2021 at 8.00pm on SCCH - 25 8 MVC 962/2021 Turuvekere Mayasandra Road, Tumkuru District. On the other hand the respondent have not led any evidence contrary to these documents. PW.1 has admitted that he did not have a DL. However it is not brought out by the Respondent No.2 that the absence of DL by the petitioner has led to the accident. Therefore, on the basis of documents on record and the evidence of PWs.1, 3 and RW.1 it is clear that the accident occurred due to the rash and negligent riding on the part of the motorcycle bearing No.KA44Q 8579 and the petitioner suffered grievous injuries in the said accident. Accordingly, issue No.1 is answered in the affirmative.
11. Issue No.2: In order to prove the injuries and disability suffered by the petitioner, the petitioner has produced the wound certificate as per Ex.P.4, it shows that he suffered fracture of femur which is grievous in nature. In support of his contention, he has examined the Doctor as PW.2 and got marked 2 documents i.e., OPD Card and Two Xray films as SCCH - 25 9 MVC 962/2021 per Exs.P.12 & 13. The doctor has given the details of the surgery in his chief examination and has stated that the petitioner is suffering from several difficulties in walking, climbing stairs and has assessed the disability of lower limb left at 56% and the whole body disability at 27%. According to the petitioner he is working as Supplier at Hotel and earning Rs.15,000/ per month. As a Supplier he has to move around. However, the assessment of disability by Pw.2 is very high, hence the Tribunal deems it to fit to fix the disability at 20%.
Monthly income:
12. The Petitioner has deposed in his evidence that, he was a Supplier at Hotel and earning a sum of Rs.15,000/ per month. In support of this he has not produced any documents such as Bank statement, vouchers etc., and also not examined any witness to prove his earnings.
13. The Hon'ble High Court of Karnataka in MFA No.7404/2014 (MVD), by relying on the decisions of the SCCH - 25 10 MVC 962/2021 Hon'ble Supreme Court of India in Meena Pawaria and others Vs. Ashrafali and others (2021 SCC online sc 1083), Jakir Hussein Vs. Sabir (2015) 7 SCC 252, Smt. Neeta and others Vs. Divisional Manager, MSRTC Kolhapur (2015)3 scc 590, Kala Devi and Orthers Vs. Bhagwan Das Chouhan and Others (2015) 2 SCC 771, Sonobanu Nazirbhai Mirza Vs. Ahmadabad Municipal Transport Service (2013) 16 SCC 719, Pushkar Mehra Vs. Brij Mohan Kushwaha and others (2015) 12 SCC 688, Govind Yadav Vs. The New India Insurance Company Limited and another (2011) 10 SCC 683 and Ningamma and another Vs. United India Insurance Company Limited (2009) 13 SCC 710 has held that there is a continuous and consistent trend by the Apex Court that the Minimum Wages Act provide for a source by which the notional income of the deceased, who had no valid proof of income could be assessed. .......The range of the wages between highly skilled and unskilled labour may have to be considered by the Tribunal while assessing the income of the SCCH - 25 11 MVC 962/2021 deceased........However, such guidelines cannot take the place of statutory guidelines and therefore we hold that it would be proper to rely on the wages fixed under the Minimum Wages Act as a guideline and assess whether the deceased was a skilled or unskilled laborer.
14. It is pertinent to note that as per the Karnataka Government Notification of Minimum Wages for employment as Server/Supplier/Waiter/Bearer and related works with effect from 01.04.2021 to 21.03.2022, the monthly income of a Supplier is Rs.12,261/ per month. Therefore the notional income of the petitioner can be rounded off to Rs.12,500/ per month. Keeping all the above things in mind, Petitioner is entitled to the following compensation:
i) PAIN AND SUFFERING: After the accident, the Petitioner was treated at Government Hospital, Kunigal and thereafter at M.C.Orthopaedic, Arthoroscopy and Joint Replacement Center, wherein took treatment as an inpatient for 8 days SCCH - 25 12 MVC 962/2021 and after surgery discharged with advice. In this regard, he has produced Ex.P.7 Discharge summary of M.C.Orthopaedic, Arthroscopy & Joint Replacement Center. Considering that the nature of injuries he has undergone is grievous, the Petitioner is awarded a sum of Rs.40,000/ under this head.
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent more than a sum of Rs.5,00,000/ towards medical, conveyance, nourishment and other incidental charges etc., In this regard, he has produced 38 medical bills as per Ex.P.9 for a sum of Rs.1,28,548/. There is no contrary evidence from the respondents to disprove the medical expenses by the petitioner. Therefore, the petitioner is entitled for the above said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD: As mentioned above the petitioner has sustained grievous injuries. The petitioner has taken treatment for 8 days in the above said hospital. In this regard the petitioner SCCH - 25 13 MVC 962/2021 has produced Ex.P.7 Discharge summary. Therefore, considering the nature of injuries and duration of treatment it can be said that the Petitioner may have required at least one month time for recovering from the injuries sustained by him. Hence, he is entitled only for a sum of Rs.12,500/ under this head.
iv) LOSS OF FUTURE INCOME: According to Ex.P.11, the date of birth of the petitioner is 01.01.1984 and since the date of accident is 27.01.2021, as on the date of accident the petitioner is aged about 37 years. Therefore the multiplier applicable to his age is 15. Therefore, the Petitioner is entitled for a sum of Rs.4,50,000/ (Rs.12,500/ x 12 x 15 x 20%= Rs.4,50,000/) under this head.
(v) LOSS OF FUTURE AMENITIES AND
HAPPINESS:
The Petitioner was aged about 37 years at the time of accident. He has sustained grievous injuries and as per consideration of this Tribunal, he is suffering from 20% SCCH - 25 14 MVC 962/2021 functional disability. The Petitioner has to suffer this disability throughout his life. He will suffer in his mind that he is no more a normal man. This will have an adverse effect on the future life of the petitioner. Because of this he will have to lose some of the amenities and comforts. Therefore, considering the age and nature of injuries that the Petitioner has suffered, a sum of Rs.20,000/ is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the above said hospitals, admitted for 8 days as an inpatient and discharged with advise. However, during this period he must have spent considerable amount on his food and nourishment, conveyance and attendant expenses. Therefore, the Petitioner is entitled for a sum of Rs.20,000/ under this head.
(vii) FUTURE MEDICAL EXPENSES:
As per the version of PW.2, the Petitioner has to SCCH - 25 15 MVC 962/2021 undergo another surgery for removal of implants and the estimation of this surgery is around Rs.50,000/. In this regard neither the petitioner nor PW.2 has produced any estimation bill about further surgery. As per the evidence of Pws.1 & 2 and looking at the earlier treatment cost and nature of injury and the evidence on record, it appears it would be justifiable if an amount of Rs.20,000/ is awarded to the Petitioner under this head. Therefore, the Petitioner is awarded a sum of Rs.20,000/ under this head.
15. The Petitioner is entitled to compensation under the following heads:
1. Pain & suffering Rs.40,000/
2. Medical expenses Rs.1,28,548/
3. Loss of income during laid up Rs.12,500/ period
4. Loss of future income Rs.4,50,000/
5. Loss of future amenities and Rs.20,000/ happiness
6. Attendant, conveyance, food and Rs.20,000/ nourishment charges
7. Future Medical Expenses Rs.20,000/ TOTAL Rs.6,91,048/ If it is rounded off it comes to around Rs.6,91,100/ and same is awarded under different heads to the Petitioner. SCCH - 25 16 MVC 962/2021
LIABILITY
16. The Respondent No.2 in the written statement has specifically denied the involvement of the offending vehicle bearing No.KA44Q8579 in the accident. It has contended that, the accident occurred due to the sole negligence of the petitioner himself but has not proved the same. Therefore, the respondent Nos.1 & 2 the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. The petitioner has claimed for a sum of Rs.20,00,000/ but he is entitled only for a sum of Rs.6,91,100/ with interest @6% per annum from the date of petition till its realization. Therefore, the petition needs to allowed. Accordingly, issue No.2 held in the Affirmative.
17. Issue No.3:
For the reasons and discussions made above and finding to the above issues, this court proceed to pass the following: SCCH - 25 17 MVC 962/2021 ORDER The petition is allowed with cost.
The Petitioner is entitled for
compensation of Rs.6,91,100/ (Rupees Six
Lakhs Ninety One Thousand and One Hundred only) from the Respondent No.2 along with interest @ 6% p.a. from the date of petition till the date of depositing the amount.
However, the Respondent No.2/Insurer is directed to deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, 25% is to be deposited in any N/S Bank for a period of 3 years in the name of the petitioner and the remaining amount shall be released in favour of the Petitioner by way of epayment SCCH - 25 18 MVC 962/2021 on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 13th Day of February 2024).
(PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bangalore.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Sri. Devaraju @ Devaraju B.M. PW.2 Dr.S.A.Somashekara PW.3 Sri. Srinivas A.G.
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of FIS (Continued in the FIR)
Ex.P.3 True copy of Mahazar (Continued in the
FIS)
Ex.P.4 True copy of Wound Certificate
Ex.P.5 True copy of MVA report (two pages)
Ex.P.6 True copy of Charge sheet
Ex.P.7 Discharge card of MC Orthopedic Hospital
SCCH - 25 19 MVC 962/2021
Ex.P.8 18 medical prescriptions
Ex.P.9 38 medical bills for Rs.1,28,548/
Ex.P.10 Eight Xray films
Ex.P.11 Notarized copy of Aadhar card of petitioner
(compared with original and original is returned) Ex.P.12 OPD Card Ex.P.13 Two Xray films Ex.P.14 Authorization letter Ex.P.15 MLC Register Exs.P.16 & P.17 Inpatient records (2 in nos.) List of Witnesses examined for Respondent/s:
RW.1 Sri. Gurumurthy H.D. List of documents exhibited for Respondent:
Ex.R.1 True copy of entire charge sheet (PRAKRITI KALYANPUR) XXIII ASCJ & ACMM, Bengaluru.