Bangalore District Court
Gangadharaiah.K. @ vs The Managing Director on 13 February, 2023
1 MVC.No.5696/2019
SCCH-10
KABC020241252019
IN THE COURT OF XIV ADDL.SMALL CAUSE JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE.(SCCH10)
Dated this 13th day of February 2023
PRESENT: Sri.Allappa.M.Badiger
B.A.L.L.B (Spl.)
XIV ADDL. SCJ & ACMM &,
MEMBER - MACT,
BENGALURU.
M.V.C.No.5696/2019
PETITIONER;
Gangadharaiah.K. @
Gangadhar
S/o.Late.Kallaiah
Aged about 48 years,
R/at.Kittanahalli Village,
Dasanapura Hobli
Bengaluru North Taluk,
Bengaluru
(By Pleader Sri.B.K.S.)
/Vs/
2 MVC.No.5696/2019
SCCH-10
RESPONDENT:
The Managing Director
B.M.T.C.
Sarige Bhavana, K.H.Road,
Shanthinagar,
Bengaluru560027.
(By Pleader Sri.B.P.M.)
JUDGMENT
The petitioner has filed this claim petition against the respondent U/Sec.166 of M.V.Act for seeking compensation of Rs.20,00,000/ with interest for the injuries sustained by him in a Road Traffic Accident took place on 22042019.
2. The brief contents of the petition are as under:
On 22042019, at about 11.15 a.m., the petitioner was driving a car bearing reg.No.KA01AE6925 in a slow and cautious manner on the left side of the Uttarahalli Main Road and when he reached near B.G.S 3 MVC.No.5696/2019 SCCH-10 Hospital junction, Kengeri, Bengaluru, at that time, the driver of the BMTC bus bearing reg.No.KA57F3479 drove the same in a rash and negligent manner and all of a sudden came from opposite direction i.e., from Chandapura towards Kengeri side and dashed to the petitioner's car. Due to which, the petitioner and other inmates of the car sustained grievous injuries. Immediately after the accident, he was shifted to BGS Hospital, wherein he has has taken as an inpatient. After taking treatment, he was advised by the doctor to take rest and regular followup treatment. As per the advice of the doctors, the petitioner is still taking follow up treatment. The petitioner has spent huge amount towards hospitalization and medical treatment, conveyance and other incidental charges.
3. Further at the time of accident, the petitioner was aged about 48 years, working as an Agriculturist 4 MVC.No.5696/2019 SCCH-10 and seasonal business and earning Rs.30,000/p.m. Due to the accidental injuries, he has lost his income, he is the only bread earner of the family. The alleged accident was occurred due to negligence on the part of the driver of the BMTC bus bearing reg.No.KA57F 3479. The respondent is the owner of the offending bus is liable to pay compensation to the petitioner. Hence, on all these grounds, the petitioner prayed to allow this petition and award compensation of Rs.20,00,000/ under all head together with interest and costs.
4. In response to the court notice, the respondent has appeared before the court through its counsel and filed the written statement.
5. The brief contentions of the written statement of the respondent are as under:
The respondent contended that, the petition is misconceived and not maintainable one either in law or 5 MVC.No.5696/2019 SCCH-10 on facts. Further the respondent has denied the contents of petition avements in toto and also denied the manner of accident. Further, the respondent contended that, the accident has not occurred due to rash and negligent driving of the driver of the BMTC bus, on the other hand, the accident has occurred due to sole negligence on the part of the petitioner as the petitioner was overtaking a vehicle in front of him and came to the wrong side and dashed against the front right corner of the bus and sustained injuries. Further the respondent has denied the age, occupation and income of the petitioner and injuries sustained by him and medical expenses incurred by him. Further the compensation claimed by the petitioner is highly excessive and without any basis. With all these contentions, the respondent prays to dismiss the petition as against the respondent. 6 MVC.No.5696/2019
SCCH-10
6. On the basis of above pleadings, the following issues were framed :
1. Whether the petitioner proves that, he has sustained grievous injuries on account of road traffic accident took place near BGS hospital junction, Uttarahalli Main Road, Kengeri, Bengaluru City, due to rash and negligent driving of the driver of BMTC bus bearing Reg.No.KA57F3479 dated 2204 2019 at about 11.15 a.m.,?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?
3. What order or award?
7. In order to prove the case, the petitioner has examined himself as PW1 and got marked the documents as Ex.P.1 to Ex.P.13. In support of his claim, he has examined the MRO of B.G.S Global hospital as PW2 and also examined the Dr.S.A.Somashekara as PW3 and got marked the documents as Ex.P.14 to Ex.P.20 respectively.
7 MVC.No.5696/2019
SCCH-10
8. On the other hand, in order to disprove the case of the petitioner and to prove the defence, the driver of the respondent has been examined as RW1 and got marked the documents as Ex.R.1 to Ex.R.4.
9. Heard the arguments and perused the records.
10. My finding to the above points as follows:
Issue No.1: Partly in the Affirmative Issue No.2: Partly in the affirmative Issue No.3: As per final order, for the following:
R E A S O N S
11. ISSUE NO.1: In this case, the petitioner has filed this petition claiming compensation with respect to the injuries sustained by him in the road traffic accident. It is the case of the petitioner that, on 22042019 at about 11.45 a.m., the petitioner was driving the car and when they reached near BGS hospital, at that time, the 8 MVC.No.5696/2019 SCCH-10 driver of the BMTC bus came in opposite direction in rash and negligent manner and dashed to the petitioner's car, as a result, the petitioner sustained injury and he has taken treatment as an inpatient in BGS Hospital, Bengaluru.
12. In order to substantiate his claim, the petitioner himself got examined as PW1 and also examined the two witnesses as PW2 and PW3 and produced documents as per Ex.P.1 to Ex.P.20 respectively. Ex.P.1 to Ex.P.9 & 13 are the police records Viz., Certified copies of FIR, Complaint, Spot Mahazar, sketch, notice under section 133 and reply, wound certificate, IMV report, discharge summary and charge sheet. On perusal of these documents it disclose that, the accident was occurred as the driver of the offending BMTC bus bearing reg.No.KA57F3479 has driven it in rash and negligent manner. On the other hand, the 9 MVC.No.5696/2019 SCCH-10 respondent contended that, the accident has occurred due to sole negligence on the part of the petitioner as the petitioner was overtaking a vehicle in front of him and came to the wrong side and dashed against the front right corner of the bus.
13. To prove the said fact, the driver of the offending bus got examined as RW1 and produced documents as Ex.R.1 to Ex.R.4. The Ex.R.1 is the copy of complaint, Ex.R.2 & 3 are the photos and Ex.R.4 is the CD.
The respondent contended that, after the accident the driver of the bus i.e., RW1 lodged the complaint before the Additional Police Commissioner, (Traffic) No.1 infantry road, Bengaluru on 06052019 contending that, the petitioner i.e., driver of the car tried to overtake the TT vehicle which was proceeding infront of him and 10 MVC.No.5696/2019 SCCH-10 came in right side and dashed to the Bus and caused the accident. The RW1 has admitted in his cross examination that, as the police have filed charge sheet against him, the filing of the charge sheet is not a conclusion proof to come to conclusion proof as the accident was occurred on the negligence of the driver of the Bus. Thereby the court has to scrutinize the all evidence available on record.
14. After the accident the complaint has been lodged as per Ex.P.2 by one Sagar. The PW1 has admitted that, the complaint has been lodged by his brother's son Sagar and the said Sagar was sitting in the car side to him. Therefore it is proper to refer the contents of the complaint as per Ex.P.2, the relevant portion of the complaint as per Ex.P.2 is read as follows: 11 MVC.No.5696/2019 SCCH-10 "ನನನ ದದಡಡಪಪ ಗಗಗಧರಯಯ ಚಲನ ಮಡಕದಗಡಡ ಉತತರ ಹಳಳ ಮಡಖಯ ರಸತ ಯಲ ಕಗಗಗರ ಕಡಯಗದ ಉತತರ ಹಳಳ ಕಡಗ ಹಹದಗಗಡವಗ BGS ಜಗಷನಹಹತತರ ನಮಮ ಮಡಗದ ಒಗದಡ TT ವಹನ ಹದಗಗಡತತತಡತ. ಆಗ TT ವಹನದ ಮಡಗದ ಹದಗಗಲಡ ಬಲಕಕ ಕರನಡ ನ ತಗದಗ ಎದಡರಡ ದಕಕನಗದ ಒಗದಡ BMTC ಬಸಹ ನಗನ KA57F3479 ರ ಚಲಕ ವಗಗವಗ ಮತಡತ ನಲಷರತಯಗದ ಚಲನ ಮಡಕದಗಡಡ ಬಗದಡ ನಮಮ ಕರನ ಮಡಗಭಗಕಕ ಡಕಕ ಮಡರಡತತನ."
The said fact is suggested to the PW1 in his cross examination. The PW1 stated that"
"I know the contents of the complaint. It is false to suggest that as per complaint the accident was occurred as in front of our vehicle, TT vehicle was going and I tried to over take the said TT vehicle at that time accident was occurred."
Further stated that: "I saw the offending vehicle from 56 feet away."
12 MVC.No.5696/2019
SCCH-10 The PW1 who is the driver of the car bearing reg.No.KA01AE6925 has denied that he was tried to overtake the TT vehicle, at that time, the accident was occurred. The PW1 has admitted that he saw the offending vehicle i.e., bus from 6 to 5 feet away. The complaint is lodged by the inmity of the car and the complainant clearly stated in complaint as the driver of the car i.e., petitioner tried to overtake the TT vehicle which was proceeding in front of the petitioner and he take the car on right side of the road, at that time, the bus was came in opposite direction in rash and negligent manner and dashed to the car. As per complaint averments one thing is clear that, the driver of the car has taken the car to the right side of the road.
15. The RW1 has produced the photographs as per Ex.R.2 & 3. On perusal of the photographs it discloses that the bus got damaged on front right portion 13 MVC.No.5696/2019 SCCH-10 and the front right portion of the car got damaged. Further on perusal of the photographs, it shows that, the bus is on extreme left side. It corroborate to the averments made in the complaint as the driver of the car taken the car to the right side. Though the petitioner has denied that he has taken the car to the right side of the road to overtake the TT vehicle, but evidence on record proved that, the driver of the Car has taken his car to the right side of the road to overtake the vehicle, thereby caused the accident. Therefore by considering these aspect, I am of the opinion that, the accident was occurred on the negligence of both drivers i.e., driver of the Car bearing reg.No.KA01AE6925 and driver of the offending BMTC bus bearing reg.No.KA57F3479. Therefore both drivers have contributed their negligence in the accident. On perusal of the entire records, it shows that, the petitioner and the driver of the BMTC 14 MVC.No.5696/2019 SCCH-10 bus bearing reg.No.KA57F3479 have 50% each contributed negligence in the accident. Hence, I answer the issue No.1 partly in the affirmative.
16. ISSUE No.2: This petition is filed for seeking compensation of Rs.20,00,000/ for the injuries sustained by the petitioner in the road traffic accident as stated above. The petitioner contended that, prior to the accident, he was hale and healthy and he was working as an Agriculturist and Seasonal business and earning a sum of Rs.30,000/p.m. The petitioner has not produced any document to show his avocation and income.
17. At this juncture, I would like to refer the decision of Yashoda.H and others V/s. Sharath Kumar Achar and another. In this case the Hon'ble High Court has taken into consideration the notional income as fixed by the Karnataka Legal Service Authority, Bengaluru. Therefore in view of the above decision, the accident was 15 MVC.No.5696/2019 SCCH-10 occurred on 22042019. Therefore, Rs.14,000/ has to be taken into consideration as monthly income of the petitioner.
18. In this case, the petitioner has proved the accident and injuries sustained by him in the alleged accident by producing relevant documents. Further the petitioner got examined the RMO and doctor as PW2 and PW3 and produced the documents as per Ex.P.14 to Ex.P.20. The Ex.P.14 is the authorization letter, Ex.P.15 is the MLC, Ex.P.16 is the case sheet, Ex.P.17 is the X ray, Ex.P.18 is the CT scan report, Ex.P.19 is the OPD card and Ex.P.20 is the Xray. On perusal of these documents, it discloses that, the petitioner has taken treatment as an inpatient in the BGS Hospital from 22042019 to 26042019 as per discharge summary i.e., Ex.P.9. The wound certificate as per Ex.P.7 and discharge summary as per Ex.P.9, discloses the injury 16 MVC.No.5696/2019 SCCH-10 i.e., posterior hip dislocation with posterior colum fracture. Therefore the petitioner also produced the case sheet to support of his case through MRO as PW2. The respondent has crossexamined the PW3, the PW3 i.e., doctor has admitted in crossexamination that the fracture is united. But denied that the petitioner has no difficulty as mentioned by the doctor and also denied the disability has to be divided 1/3rd for the whole body out of limb disability. As per doctor the right lower limb disability is 40% and to the whole body 20%. Therefore the petitioner is entitled for the compensation for the under the following different heads:
19. LOSS OF FUTURE EARNINGS ON THE ACCOUNT OF DISABILITY.
According to the petitioner he was working as an Agriculturist and Seasonal Business and earning a sum of Rs.30,000/p.m. But no documents are produced. 17 MVC.No.5696/2019
SCCH-10 Therefore the notional income of Rs.14,000/ p.m. is taken into consideration.
So far as the age of petitioner is concerned, the petitioner contended that at the time of accident he was aged 48 years. The petitioner has produced the Aadhar card as per Ex.P.10, it discloses the year of the birth of the petitioner is 1971. So, as on the date of accident the petitioner was aged 48 years. Hence, this Tribunal has taken into consideration of the age of the petitioner as 48 years as on the date of accident. Hence, the proper multiplier applicable to the case on hand is '13'.
20. The petitioner contended that, due to the accidental injury and fracture, he was unable to attend his work and he became permanent disabled. The document as per Ex.P9 i.e., discharge summary is discloses the nature of injury i.e., posterior hip dislocation with posterior column fracture. The Pw3 is 18 MVC.No.5696/2019 SCCH-10 not a treated doctor. The PW3 has admitted the fracture is united and he has taken 50% of disability to the whole body out of total limb disability. The assessment made by the doctor is only physical disability. The court has considered the functional disability. Hence, by considering the evidence of the doctor and injury, I am of the opinion that, 10% is proper to considered the functional disability for the avocation of the petitioner. Hence the petitioner is entitled for the compensation of Rs.2,18,400/ (Rs.14,000 X 12 X 13 X 10/100) towards loss of future income on the account of disability of the petitioner.
21. PAIN AND SUFFERINGS:
As per the Wound certificate and discharge summary produced at Ex.P.7 and Ex.P.9, the petitioner 19 MVC.No.5696/2019 SCCH-10 has sustained the following injuries i.e., posterior hip dislocation with posterior column fracture. The discharge summary issued by the BGS Global Hospital, disclose that, the petitioner was treated as an inpatient from 22042019 to 26042019 i.e. 05 days. The doctor/ PW3 has deposed that, the patient i.e., petitioner has suffering from physical disability. As petitioner has undergone pain and sufferings due to injuries and fracture in the accident. Considering the above facts and looking to the nature of injuries and considering age and occupation of the petitioner, I deem it just and reasonable to grant for compensation of Rs.35,000/ under the head of Pain and sufferings.
22. LOSS OF AMENITIES Further on perusal of evidence of PW1, it reveals that, petitioner has sustained posterior hip dislocation 20 MVC.No.5696/2019 SCCH-10 with posterior column fracture. The petitioner was aged about 48 years at the time of accident. Considering the above facts and on perusal of evidence of PW1, considering the nature of injuries sustained by the petitioner, the petitioner has to suffer some extent of difficulty in his daytoday activities and work. For the above reason, I deem it just and reasonable to grant for compensation of Rs.25,000/ under the head of loss of amenities.
23. ATTENDANT, FOOD AND NOURISHMENT AND CONVEYANCE CHARGES.
Further on perusal of ExP9 i.e., discharge summary, it shows that, the petitioner has taken treatment as an inpatient from 22042019 to 2604 2019 i.e., 05 days. Looking to the period of hospitalization, naturally he was unable to do his own 21 MVC.No.5696/2019 SCCH-10 work and he was needed help from some other person. Hence, I deem it just and reasonable to grant for compensation of Rs.5,000/ under the head of attendant, food and nourishment and conveyance charges.
24. LOSS OF INCOME DURING LAID UP PERIOD AND REST PERIOD.
Further due to the accidental injuries, the petitioner might have taken rest at least for a period of 1 months as he was sustained injury as posterior hip dislocation with posterior column fracture and as such, if 1 month income is awarded under the head of loss of income during laid up period and rest period, certainly it would meet the ends of justice. For the above reason, I deem it just and reasonable to grant for compensation of Rs.14,000/under the head of loss of income during laid up period and rest period.
22 MVC.No.5696/2019
SCCH-10
25. MEDICAL EXPENSES.
As regard to claim of medical expenses, the petitioner has got marked the document as per Ex.P.12 i.e. medical bills. As per Ex.P.12 i.e., medical bill is Rs.2,71,333/. The respondent except mere denial during the cross examination nothing is elicited to refuse the medical bills. Upon considering the above bills and injuries sustained by the petitioner in the accident, the resultant disability suffered by him due to such injuries, I proceed to award Rs.2,71,333/ under the head of medical expenses.
26. FUTURE MEDICAL EXPENSES As per medical records, the petitioner sustained injury and implants are fixed. Therefore the PW3/doctor has suggested the future surgery of cost of Rs.40,000/. The PW3 has not produced any 23 MVC.No.5696/2019 SCCH-10 estimation for future surgery cost. Therefore, I am of the opinion that, Rs.15,000/ cost is proper to award the future medical bills.
Considering the above facts and circumstances of the case and for the above reasons, I am of the opinion that, the petitioner is entitled for total compensation of Rs.5,83,733/ under the following heads:
Compensation heads Compensation amount
1. Towards loss of income on Rs. 2,18,400/ account of disability
2. Towards Pain and Sufferings Rs. 35,000/
3. Towards loss of Amenities Rs. 25,000/
4. Towards Nourishment, Rs. 5,000/ conveyance & attendant charges
5. Towards Loss of income during Rs. 14,000/ laid up period & rest period
6. Medical Expenses Rs. 2,71,333/
7. Towards Future medical Rs. 15,000/ expenses Total Rs. 5,83,733/ 24 MVC.No.5696/2019 SCCH-10
27. LIABILITY: On perusal of the contents of petition and contents of objection statement, it reveals that, the respondent is the owner of the offending BMTC Bus bearing reg.No.KA57F3479. According to the petitioner the driver of the offending bus came in rash and negligent manner in opposite direction and dashed to the petitioner's car and caused the accident.
The respondent contended that, the petitioner tried to overtake the TT vehicle which was going infront of the petitioner's car and petitioner take right side and dashed to the right side of the front portion of the accident and the accident was occurred on negligence of the petitioner. While discussing the issue No.1 with respect to the accident and negligence this court has held that there is a contributory negligence of the petitioner and the driver of the offending bus in the said accident and also held that there is a 50% contributory negligence by 25 MVC.No.5696/2019 SCCH-10 the petitioner and driver of the offending bus. Therefore the respondent is only liable to pay the 50% of the total compensation amount with interest. Hence, I answer the issue No.2 in the partly affirmative.
28. ISSUE NO.3: In view of my finding on issue No.1 and 2, I proceed to pass the following;
O R D E R The petition filed by the petitioner U/Sec.166 of M.V. Act is hereby partly allowed with cost.
The petitioner is entitled for
compensation of Rs.5,83,733/ (future
medical expenses does not carry interest) with interest @ 6% p.a. from the date of petition till the date of deposit.
The respondent is hereby directed to deposit the 50% of the amount out of total compensation amount in this tribunal within two months from the date of this order. 26 MVC.No.5696/2019
SCCH-10 After deposit of compensation amount, looking to the age of the petitioner and medical expensess incurred by the petititioner, the entire amount with accurred interest shall be paid to him through NEFT/RTGS by way of Epayment on proper identification.
Advocate fee is fixed at Rs.1,000/. Draw award accordingly.
(Dictated to stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in open court on this 13th day of February 2023) (ALLAPPA. M. BADIGER) XIV ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURES List of witnesses examined on petitioner's side:
P.W.1. Gangadharaiah.K. @ Gangadhar P.W.2. Stalin Christopher P.W.3. Dr.S.A.Somashekar 27 MVC.No.5696/2019 SCCH-10 List of documents exhibited on petitioner's side:
ExP1 FIR ExP2 Complaint ExP3 Spot Mahazar ExP4 Sketch ExP5 Notice u/s 133 of M.V.Act ExP6 Reply ExP7 Wound certificate ExP8 IMV report ExP9 Discharge summary ExP10 Aadhar card ExP11 DL ExP12 Bill 14 in Nos. ExP13 Charge sheet ExP14 Authorization Letter ExP15 MLC ExP16 Case Sheet ExP17 Xrays ( 6 in Nos.) ExP18 CT Scan reports (7 in Nos.) ExP19 OPD card ExP20 Xray
List of witnesses examined on respondents side:
RW1 Monappa List of documents exhibited on respondents side:
Ex.R.1 Copy of Complaint
Ex.R.2&3 Photos
Ex.R.4 CD
XIV ADDL.SMALL CAUSES JUDGE
& ACMM.