Karnataka High Court
M D Somanath vs Sri Manjunath H Bandi on 30 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF JANUARY, 2020
PRESENT
THE HON'BLE Mrs. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE Ms. JUSTICE JYOTI MULIMANI
M.F.A. No.2915 OF 2017 [MV-I]
BETWEEN:
M.D. SOMANATH,
S/O. SRI DODDAPPA
AGED ABOUT 39 YEARS,
OCC: GARAGE OWNER (NOW UNEMPLOYED)
R/O. NO.259, BHAVANINAGAR,
CHANNANAYAKANAPALYA,
NAGASANDRA POST,
BENGALURU - 560 073.
... APPELLANT
(BY SMT. RASHMI JADHAV, ADVOCATE)
AND:
1. SRI MANJUNATH H. BANDI
S/O. H. BANDI
AGED ABOUT 39 YEARS,
OCC: DRIVER OF BMTC,
BUS, BMTC 22ND DEPOT,
PEENYA 2ND STAGE,
BENGALURU - 560 058.
2. BMTC, REPTD. BY ITS MANAGING DIRECTOR,
CENTRAL OFFICE,
SHANTI NAGAR, K.H. ROAD,
BENGALURU - 560 027.
3. UNITED INDIA INS. CO. LTD.,
-2-
NO.40, LAKSHMI COMPLEX,
OPP. VANI VILAS HOSPITAL,
K.R. ROAD, BENGALURU.
(REPRESENTED BY ITS
DIVISIONAL MANAGER) ... RESPONDENTS
(BY SRI F.S. DABALI, ADVOCATE FOR R-2;
SRI JWALA KUMAR, ADVOCATE FOR R-3;
R-1 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED:
20/09/2016 PASSED IN MVC NO.3903/2013 ON THE FILE
OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII
ACMM, BENGALURU, DISMISSING THE CLAIM PETITION
FOR COMPENSATION.
THIS APPEAL BEING HEARD, RESERVED ON
19/12/2019 AND IT BEING LISTED FOR PRONOUNCEMENT
TODAY, NAGARATHNA J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
The injured claimant has preferred this appeal being aggrieved by the dismissal of his claim petition (MVC No.3903 of 2013) filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') by the Motor Accidents Claims Tribunal, Bengaluru (SCCH-13) (hereinafter referred to as 'the Tribunal' for the sake of brevity), by judgment and award dated 20.09.2016.
2. Briefly stated the facts according to the claimant are:
-3-
2.1 On 18.09.2011 at about 08.30 p.m., the claimant-appellant herein was proceeding on his Splendor motor-cycle bearing registration No.KA-02/ED-4588 on National Highway No.4 (NH-4) near Parle-G factory on Tumkur-Bengaluru road. At that time, a Bangalore Metropolitan Transport Corporation (BMTC) bus bearing registration No.KA-01/FA-707 was driven by its driver in a rash and negligent manner and in a high speed, endangering human life and hit the motor-cycle from behind. As a result, he fell down and sustained injuries.
He was shifted to Premiere Sanjeevini Hospital and then to Sidvin Hospital and SDM Ayurveda Hospital, Udupi, wherein he was an in-patient and spent a huge amount towards medical treatment. Peenya Police registered a case in Crime No.256/2011 for the offences punishable under Sections 279 & 337 Indian Penal Code, 1860 and under Section 134-A and 134-B of the Act against the driver of an unknown canter vehicle as the cause of the accident.
2.2 According to the claimant, prior to the accident, he was hale and healthy. He was engaged in running an auto garage called "Manjunatha Auto Garage" -4-
and earning a sum of Rs.40,000/- per month. But, as a result of the injuries sustained in the accident, he has suffered 100% disability and is not in a position to perform his day-to-day or routine functions nor lead a normal life.
Hence, he claimed compensation of Rs.1,00,00,000/- from the respondents with cost and interest at 18 per cent per annum from the date of filing of the claim petition till realisation.
2.3 In response to the notice issued by the Tribunal, respondent Nos.1 to 3 appeared through their counsel, but only respondent Nos.2 and 3 filed their written statement. Respondent No.2/owner of the BMTC bus bearing registration No.KA-01/FA-707 contended that on the date of the alleged accident, the bus was parked so as to enable the passengers to alight from the bus; at that time, a goods canter vehicle loaded with gas-cylinder dashed against the motor-cycle and sped away without stopping the vehicle. On humanitarian grounds, one of the passengers of the bus called "108 ambulance" and with the help of the passengers, the injured claimant was shifted to ambulance. That a false claim has been lodged against the driver of the bus. In fact, the driver of the bus had -5- lodged the complaint before the Peenya Traffic Police Station and there was no negligence on the part of the driver of the BMTC bus. That the bus had been insured with respondent No.3/insurer and the policy was in force as on the date of the accident.
2.4 The insurance company in its written statement disputed the involvement of the BMTC bus in the accident and contended that the jurisdictional police had registered a case against the driver of an unknown canter. That BMTC bus was not involved in the accident.
Denying the material averments made in the claim petition, both respondent Nos.2 and 3 sought dismissal of the claim petition.
2.5 On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
"1. Whether the petitioner proves that the accident dated: 18.09.2011 at about 9.30 p.m. near Parle G factory, NH-IV, Tumkur-Bangalore Road, Bangalroe was due to the rash and negligent driving of the riding of the BMTC bus bearing No.KA-01/FA-707 and that he has -6- sustained the injuries due to the said accident?
2. Whether the petitioner is entitled for compensation? If so, how much from whom?
3. What order?"
2.6 In order to substantiate his case, the claimant examined himself as PW-1. He examined Dr.Amresh S.Bhaganagere as PW-2 and Gopalakrishna as PW-3. He produced forty-nine documents which were marked as Exs.P-1 to P-49. Respondents examined Dr.Jagadeesh Shetty as RW-1 and Smt.Kusuma as RW-2 and the driver of BMTC bus/respondent No.1 i.e., Sri.Manjunath H.Bandi, as RW-3. Four documents were produced which have been marked as Exs.R-1 to R-4.
2.7 On the basis of the evidence on record, the Tribunal answered issue No.1 'in the negative'; issue No.2 as 'does not survive for consideration' and dismissed the claim petition.
Being aggrieved by the dismissal of the claim petition, the injured claimant has preferred this appeal. -7-
3. We have heard learned counsel, Smt.Rashmi Jadhav appearing for the appellant and Sri. F.S.Dabali, learned counsel for respondent No.2 and Sri.Jwala Kumar, learned counsel for respondent No.3 and perused the material on record, as well as the original record.
4. Appellant's counsel contended that the Tribunal was not right in dismissing the claim petition by holding that there was no negligence on the part of respondent No.1/driver of the bus belonging to respondent No.2. She contended that the accident had occurred due to rash and negligent driving of the bus by respondent No.1/driver. That the bus had not stopped in order to enable the passengers to alight from the bus. The accident had occurred about four feet away from the bus stop, i.e., in front of the bus stop. That it is highly improbable for an unknown canter vehicle to have come from behind the bus and the motor-cycle on which the claimant was driving, so as to hit the motor-cycle from behind, which was four feet away from the bus stop. The Tribunal has misconstrued the evidence on record and has dismissed the claim petition by holding that the driver of the BMTC bus was not -8- responsible for the cause of accident. She submitted that the driver of the bus was the complainant. It is his version in the complaint that an unknown canter vehicle had hit the motor-cycle from behind and as a result, the claimant had sustained injuries in the accident. The said version has not been established nor could have been accepted by the Tribunal as in the instant case, the accident had occurred just in front of the bus stop i.e., four feet away from the bus stop. It has neither been demonstrated nor proved by the respondent as to how the unknown canter vehicle had hit the motor-cycle from behind and as a result, the claimant had sustained injuries in the accident. The driver of the bus/respondent No.1 herein had filed a false complaint in order to escape his liability. The Tribunal was not right in accepting the case of the respondent and thereby dismissing the claim petition.
5. She further contended that the adjudication of the claim petition in the instant case is incomplete. That even if answer to issue No.1 was in the negative, when the evidence was on record, the Tribunal ought to have considered the said evidence for the purpose of determining the compensation and ought to have assessed -9- the compensation payable to the claimants. Instead, by holding issue No.1 in the negative, issue No.2 has been held as 'not surviving for consideration'. She contended that the accident had occurred on 18.09.2011 and for eight long years, the appellant is without any compensation. That on account of the injuries sustained by the appellant herein, he is suffering from paraplegia and has sustained 100% disability. He is not able to lead a normal life. He has to depend on an attendant. He has suffered pain and suffering on account of the injuries sustained in the accident. That there is loss of future earning capacity, huge medical expenses and loss of amenities. He is unable to lead a normal marital life and he and his family are in total penury.
6. Learned counsel for the appellant submitted that if this Court is to answer issue No.1 raised by the Tribunal in favour of the appellant, then the matter may not be remanded to the Tribunal for assessment of compensation and instead, compensation may be assessed by this Court itself on the basis of the evidence on record for, long years have lapsed and with the passage of time, the appellant and his family are in deep financial crisis and in agony.
- 10 -
She contended that issue No.1, being the issue relating to rash and negligent driving by the driver of the bus/respondent No.1 herein, be answered against respondents and in favour of appellant and compensation may be assessed by this Court by allowing the appeal.
7. Per contra, learned counsel for respondent Nos.2, Sri F.S.Dabali, supported the findings arrived at by the Tribunal and submitted that there is no merit in this appeal. He, however, submitted that if this Court is to conclude that the driver of the bus was at fault and had caused the accident, resulting in injuries sustained by the claimant, then, the liability would have to be fastened on respondent No.3/insurance company to satisfy the award.
8. Sri. Jwala Kumar, learned counsel for respondent No.3/insurance company also supported the judgment and award of the Tribunal and drew our attention to the documents on record and contended that the Tribunal has rightly dismissed the claim petition and there is no merit in this appeal and therefore, the same may be dismissed.
9. By way of reply, learned counsel for the appellant submitted on the claimant's version as well as
- 11 -
the documents on record and contended that the documents would clearly indicate that the driver of the bus was negligent in causing the accident and that this Court may, on answering the issues in favour of the claimant, award compensation by allowing this appeal.
10. Having heard learned counsel for the parties, the following points would arise for our consideration:
1. Whether the Tribunal was justified in answering issue No.1 in the negative and thereby holding that respondent No.1 herein was not rash or negligent in driving the bus belonging to respondent No.2 and thereby was not responsible in causing the accident, resulting in injuries sustained by the appellant / claimant?
2. If the answer to point No.1 is in favour of the claimant, whether he is entitled to compensation?
3. What order?
11. The fact that on 18.09.2011 at about 08.30 p.m., the appellant/claimant was proceeding on his splendor motor-cycle bearing registration No.KA-02/ED-
- 12 -
4588 on national highway No.4 on Tumkur-Bengaluru Road has been established. The fact that he suffered severe injuries on account of the road traffic accident on the said date and time and as a result, he has sustained 100% disability and has become paraplegic, has also been established.
12. The first controversy is with regard to the person who has caused the accident. It is the case of the appellant that respondent No.1/driver of the BMTC bus bearing registration No.KA-01/FA-707 was responsible in hitting the motor-cycle, on which the claimant was proceeding, from behind and as a result, he fell down and sustained injuries. The Tribunal, while considering this aspect of the matter, has noticed the rival contentions of the parties inasmuch as the case of respondent No.2/BMTC bus is, the driver of the bus bearing registration No.KA- 01/FA-707 was not responsible in causing the accident. That the passengers were alighting from the bus at the bus stop and at that time, a canter lorry loaded with gas cylinders hit the motor-cycle and sped away without stopping the vehicle. According to respondent No.2, one of the passengers of BMTC bus called an ambulance and
- 13 -
the injured claimant was shifted to the hospital. That respondent No.1/driver of the BMTC bus lodged a complaint before the jurisdictional police and First Information Report was registered against an unknown vehicle. But no complaint was lodged by the claimant; that the claimant has attempted to implicate the driver of the bus in order to make a false claim. While considering the evidence of the claimant, who examined himself as PW-1, the Tribunal has noted that in the cross- examination, claimant has denied the suggestion that he was hit by an unknown canter vehicle which was carrying gas cylinders. The Tribunal has further noted that Ex.P-46 is a statement of the claimant recorded on 06.04.2012, six months after the accident.
13. The Tribunal has also noted that on account of the transfer of the case and the records pertaining to the case in Crime No.256/2011 to the Assistant Police Commissioner, North Traffic Subdivision for investigation, it is not known as to whether any charge-sheet was filed and no documents have been produced in that regard. That the complaint is against an unknown canter lorry. That it is the statement of only the claimant and PW-3 to
- 14 -
the effect that there was negligence on the part of the driver of the BMTC bus. The Tribunal has further considered the evidence of the respondents to the effect that in Ex.R-2, which is the MLC register, it has been stated that a two-wheeler bearing registration No.KA- 02/ED-4588 was hit by a lorry.
14. RW-2 Administrative Officer of respondent No.3 has also stated that there was no involvement of the BMTC bus. The Tribunal has noted that the claimant had taken undue advantage by impleading respondent Nos.2 and 3 in the claim petition with a mala fide intention to secure compensation from the insurance company.
15. The evidence of RW-3, who is none other than the driver of the BMTC bus bearing registration No.KA- 01/FA-707 has also been considered by the Tribunal. In his evidence, he has categorically admitted that on 18.09.2011, he was on duty as the driver of the said bus in the route from Kempegowda Bus Stop to Shivanapur Bus stop. According to him, at about 09.30 p.m., he had stopped the bus at Parle-G bus stop and the passengers were alighting from the bus. At that time, a goods canter
- 15 -
vehicle came in a rash and negligent manner and dashed against the claimant's vehicle and sped away. That one of the passengers called an Ambulance and shifted the injured to the hospital and thereafter, he lodged the complaint. In his complaint, he has stated that the accident had occurred due to rash and negligent driving of the driver of goods canter. The Tribunal has noted that when he went to the police station, he could not lodge the complaint at that time, but he was asked to come on the following day. The Tribunal has also noted that in his cross-examination, RW-3 has admitted that the distance between the bus stop and the accident spot was four feet. That accident had occurred in front of the bus stop. But, the Tribunal has inferred that "So, if at all, it was BMTC Bus, who had hit the petitioner, the people who are around in the bus stop or the passengers in the bus would not allow him to move the bus from the spot and also they would not have allowed the driver of the BMTC bus if had committed offence. So, there is no evidence to make out that the alleged accident taken place due to rash and negligent driving by the driver of the BMTC Bus." It is also recorded that "Though the documents produced on behalf
- 16 -
of the petitioner makes that he had sustained injuries in RTA and incurred huge amount for his medical expenses, there is no proof as to the fact that the BMTC Bus bearing Reg.no.KA-01-FA-707 is involved in the accident and due to rash and negligent driving by the driver of the said bus, the petitioner had met with an accident."
16. The Tribunal has also concluded that, on the basis of the evidence of RW-3, it cannot be inferred that there was negligence on the part of respondent No.1/the driver of the bus. It is further reasoned that no charge- sheet was placed on record and no complaint was registered against the driver of the BMTC bus. That the driver of the bus himself is the complainant. That, to disbelieve the version of RW-3 i.e., the driver of the bus, there is no contra evidence. Therefore, the claimant had failed to prove that the injuries sustained by him in the road traffic accident was on account of the rash and negligent driving of the driver of BMTC bus bearing registration No.KA-01/FA-707. On the basis of the above reasoning, the claim petition was dismissed by the Tribunal.
- 17 -
17. The aforesaid reasoning and inferences of the Tribunal have been reconsidered by us in light of the evidence on record. The claimant examined himself as PW-1. He has stated in his examination-in-chief that on 18.09.2011, after completing his work in the garage, at about 08.30 p.m., he left the garage on his motor-cycle bearing registration No.KA-02/ED-4588 to his house. While proceeding on National Highway No.4, near Parle-G factory at about 09.00 p.m., he was driving carefully on the left side of the road with utmost care and caution. At that time, the BMTC bus bearing registration No.KA-01/FA- 707 came in a rash and negligent manner and in high speed and hit his motor-cycle from the hind side. As a result, he fell down and sustained injuries and fell unconscious. According to PW-1, respondent No.1/driver of the bus took undue advantage of the situation and in order to safeguard himself, he lodged a complaint before Peenya Traffic Police on 19.09.2011 i.e., the following day, by stating that the motor-cycle was hit by an unknown canter vehicle which sped away from the scene. As a result, Crime No.256/2011 was registered by Peenya Police against the driver of an unknown canter vehicle. As he
- 18 -
was not in a position to talk and had suffered severe injuries to his spinal cord, he could not lodge the complaint. That subsequently, his wife made an enquiry with the jurisdictional police and came to know that a complaint had already been lodged by respondent No.1/driver on 18.09.2011 in order to cover his misdeed. That she approached Peenya Traffic Police at Bengaluru and made enquiries. Thereafter, Sub-inspector of Police attached to Peenya Traffic police Station visited his house on 06.04.2012 and recorded claimant's statement. Subsequently, the statement of another eye-witness PW- 3/Gopalakrishna was also recorded and that the investigation was pending consideration when the evidence was given.
18. In the cross-examination, PW-1 has stated that after the accident, the bus was stopped and the passengers alighted from the bus and tried to lift the claimant, but he fell unconscious. The BMTC bus was stopped after causing the accident. That he knew that the passengers of the bus lifted him and made him to sit near the accident spot, but he does not know as to how he was taken to the hospital from the accident spot. That his
- 19 -
family members had not lodged any complaint against the driver of the BMTC bus driver regarding the accident but, it is false to state that he was hit by an unknown canter vehicle which was carrying gas cylinders. He has also stated that he does not know as to when the driver of the BMTC bus completed his night duty and thereafter lodged a complaint on the next day. That after such complaint was lodged, the police did not go to Premier Sanjeevini Hospital where the claimant was admitted to record his statement nor were the statements of his family members recorded. He has admitted as true that after giving statement before the police as per Ex.P-46, his motor- cycle was subjected to IMV inspection. But, he is not aware, as to, whether, the BMTC bus was subjected to IMV inspection. He is also not aware as to against whom the police have filed the charge-sheet in respect of the accident in question and therefore, he has not produced the charge-sheet before the Tribunal. He has denied as false that in order to get compensation he has obtained the name of the driver of BMTC bus and gave a false statement before the police as per Ex.P-46. He has denied as false that the bus was not involved in the accident.
- 20 -
19. PW-3/Gopalakrishna is stated to be an eye- witness to the accident. He has stated in his examination- in-chief that on 18.09.2011 at about 09.00 p.m., he was proceeding towards Nelamangala in his vehicle on National Highway No.4 service road; a BMTC bus was proceeding in front of him and there was another motor-cycle in front of the bus and around 09.00 p.m., the BMTC bus dashed to the motor-cycle bearing registration No.KA-02/ED-4588 from the hind side. The driver of the motor-cycle fell towards the left side of the bus. The motor-cycle was totally damaged and the rider was severely injured and fell unconscious. That after the accident, many people had gathered at the spot of accident and an ambulance was called and the police was informed. The relatives of the injured arrived at the spot and took the injured in the ambulance to the hospital. That he had given a statement to Peenya Traffic Police on 06.04.2012.
20. In his cross-examination, PW-3 has stated that on 18.09.2011 at about 09.30 p.m., he was driving his car about 30 feet away from the accident spot and he had personally seen the accident. The bus as well as the
- 21 -
claimant on his motor-cycle and himself were proceeding from Bangalore to Nelamangala. That he was personally present at the accident spot and called an ambulance through phone. That he had given his mobile number to the police at the accident spot and thereafter, the police called him and obtained his statement as Ex.P-47 and he has no knowledge about the progress made in the criminal case in respect of the accident. In the police records, it is shown that an unknown canter vehicle hit the motor-cycle, which is false. That, he does not know, as to, whether, the driver of the BMTC bus had lodged a complaint regarding the accident on the next day after completing his night duty. That it is false to say that the accident was not due to the involvement of the BMTC bus and on account of the rash and negligent driving by the driver of the said bus. He has denied that he was not at the spot at the time of the accident. He has stated that he is not aware as to whether a charge-sheet was filed against the driver of the bus or not.
21. RW-3 is none other than the driver of the BMTC Bus. He has stated in his affidavit by way of examination- in-chief that on 18.09.2011, he was on duty as a driver of
- 22 -
the BMTC bus bearing registration No.KA-01/FA-707, from Kempegowda Bus Stand to Shivanapura bus stop. According to him, at about 09.30 p.m., he had stopped the bus near Parle-G bus stop for the passengers to alight. At that time, a goods canter lorry was driven in rash and negligent manner and dashed to the motor-cycle and sped away without stopping the vehicle. Thereafter, one of the passengers of the bus called 108 ambulance and with the help of other passengers, shifted the injured claimant in an ambulance. That he had lodged a complaint before the jurisdictional police and also an FIR against an unknown canter vehicle was registered in Crime No.256/2011. He has further stated that his bus was not involved in the accident and the accident had occurred due to the negligence of an unknown canter vehicle and there was no negligence on his part in causing the accident to the claimant. In his cross-examination, he has stated that his night duty shift was from 02.00 p.m. till 10.30 p.m. that near the accident spot at about 09.30 p.m., the police asked him to come to the police station and give a statement. That he went to the police station at about 10.30 p.m. and Ex.P-1 is the complaint lodged by him.
- 23 -
That the police had asked him to wait at the station and accordingly, he waited till the next morning at the police station. About six months after lodging the police complaint, police asked him to come to the police station. He has further stated that he saw a canter vehicle dashing the motor-cycle while he was seated in the bus at the bus stop and had stopped the bus at the stop in order to enable the passengers to get down from the bus. The accident occurred in front of the bus stop. He has denied that his bus dashed the motor-cycle and thereafter, he stopped the bus at the bus stop. He has denied as false that the accident spot is 20 feet from the bus stop. He has admitted that he informed his Depot Manager over phone that police had asked him to go over to the police station. He has stated that since the offending vehicle which caused the accident was not known to the police, he would be an eye-witness to the accident and hence, asked him to give a statement before police. He has admitted as true that he was in the police station till the next morning along with the bus. He has denied that after discussing with his higher officials, he lodged a police complaint on the next morning.
- 24 -
22. On considering the documents on record, it is noted that the complaint was given on 19.09.2011 at 07.45 a.m., i.e., the morning after the accident had occurred, by RW-3 i.e., respondent No.1 the driver of the bus.
23. Ex.P-46 is the statement given to the police by the injured claimant on 06.04.2012, wherein he has stated about the manner in which the accident had occurred and that a month prior to giving of the statement, he had regained consciousness and subsequently, about a week before that he was able to speak a little. That he was residing at Bhavani Nagar, Nagasandra and was eking his livelihood by running an auto-garage by name 'Manjunatha Auto Works' near Kantheerava Studio, Bangalore. That on 18.09.2011, after completing his work in the garage, at about 08.30 p.m., he left the garage on his Splendor motor-cycle bearing registration No.KA-02/ED-4588 to his house. While proceeding on National Highway No.4, near Parle-G factory at about 09.00 p.m., a BMTC bus hit his motor-cycle from hind side, due to which, he fell down, sustained injuries and fell unconscious. It is stated by
- 25 -
him that he was treated in various hospitals and underwent surgery of his spinal-cord. Since, he had not recovered fully, he took treatment at S.D.M. Ayurveda Hospital for a month and returned home in December 2011. Since, then he had been taking ayurvedic treatment. That he was able to speak only a week prior to giving the statement and started recalling the events that happened on the fateful day. Since, he was still unable to walk and not in a position to lead a normal life, he sought to take legal action against the erring BMTC bus driver.
24. Ex.P-47 is the statement given to the Police by PW-3 (Sri.Gopalkrishna), wherein it is stated by him that, on 18.09.2011 at about 09.00 p.m., he was traveling towards Nelamangala to attend the marriage of his relative in his car. When he was on NH-4 service road near Parle- G factory, he saw the BMTC bus proceeding in front him and there was another splendor motor-cycle bearing registration No.KA-02/ED-4588 proceeding in front of the said bus. That the BMTC bus hit the motor-cycle, as a result, the rider of the motor-cycle fell down towards the left side of the BMTC bus. The motor-cycle was damaged and rider of the motor-cycle was severely injured and fell
- 26 -
unconscious. Thereafter, people gathered at the spot and an 108 ambulance was called and traffic police was informed. By that time, the relatives of the injured arrived at the spot and took the injured to hospital. That, after the arrival of Police, he went to attend the marriage at Nelamangala.
25. On consideration of the aforesaid documents, in light of the oral evidence, we find that non-production of the charge-sheet by the claimants in the instant case is not fatal to the case. Firstly, the charge-sheet could not have been filed against respondent No.1/RW-3, as he is the complainant, and in his complaint he had stated that an unknown canter vehicle had hit the motor-cycle from behind and had caused the accident to the claimant. The claimant immediately fell unconscious. He was shifted to a hospital in an ambulance for treatment and after a few months, he regained consciousness but ultimately became paraplegic. When the driver of the BMTC bus was summoned by the jurisdictional police after the occurrence of the accident, he instead lodged a complaint against the driver of an unknown canter vehicle. In such circumstances, obviously, there would be no charge-sheet
- 27 -
filed against the driver of the BMTC bus. The non-filing of any charge-sheet against the driver of the BMTC bus while at the same time, alleging that there was rash and negligence in driving the bus and causing the accident is neither contradictory nor fatal to the case of the claimant.
26. The other evidence has also to be considered in the instant case. It is evident that the spot of the accident is four feet from the bus stop. If according to the driver of the BMTC bus, he had indeed stopped the bus at the bus stop in order to enable passengers to alight from the bus and the passengers were alighting and the spot of the accident was only four feet away from the bus stop, it is difficult to imagine that an unknown canter lorry would have hit the motor-cycle on its hind side. If according to the driver of the bus, the bus was at the bus stop and the motor-cycle was four feet away from the bus stop, it is highly improbable for the canter lorry to have got in between the motor-cycle and the bus. If indeed the bus had stopped at the bus stop then, we wonder as to how could the canter lorry hit the motor-cycle from its hind side. The said theory set up by the driver of bus / RW-3, cannot be believed. He, in fact, went to the police station
- 28 -
on being summoned and not voluntarily, soon after the accident and had remained there with the bus till the following morning and he gave a complaint at 07.45 a.m. on 19.09.2011. There is no explanation as to why respondent No.1/driver of the bus remained in the police station along with the bus all night and gave the complaint on the following morning at 07.45 a.m. If according to his deposition, he was summoned by the police on 18.09.2011 to make a statement as an eye-witness, his statement would have been recorded and he would have been sent away on the very same day. There is no explanation as to why he waited the whole night in the police station along with the bus and at 07.45 a.m. on the next day, he gave a complaint against the driver of an unknown canter vehicle. The reason as to why he had given a complaint alleging that an unknown canter vehicle had dashed against the motor-cycle from its hind side and sped away is not far to see. The police complaint was given by him against the driver of an unknown canter vehicle in order to escape liability and being charge-sheeted. Respondent No.1 driver of the bus belonging to respondent No.2 has admitted all other aspects of the case. But, in his
- 29 -
complaint, he has stated that the driver of an unknown canter vehicle had caused the accident. Merely because no complaint was given by the claimant or his family members against respondent No.1 and consequently, no charge-sheet was filed against him, or the fact that no charge-sheet was produced by the claimant and his family members before the Tribunal cannot lead to an inference that respondent No.1 had not caused the accident. Respondent No.1 who is the complainant would obviously not give a complaint against himself. Therefore, he alleged that the driver of an unknown canter lorry had hit the motor-cycle on the hind side. The said complaint is a false complaint as it cannot be believed that having regard to there being only four feet distance between the bus stop and the motor-cycle i.e., the spot of the accident, a canter vehicle could not hit the motor-cycle from behind. Four feet distance is too small a distance for any vehicle to wriggle in between the bus stop where the bus was said to have been stopped and the motor-cycle, to dash the motor-cycle from its hind side if it is to be believed that the bus had stopped at the bus stop. Thus, the theory set up by respondent No.1, who has deposed as RW-3, that in
- 30 -
front of the bus stop, an unknown canter vehicle dashed against the motor-cycle which was just four feet away from the bus stop, cannot at all be believed.
27. Respondent No.1 has tried to divert the focus of the case to the driver of an unknown vehicle whereas, according to us, respondent No.1 was negligent in causing the accident. There is no other evidence to rely upon so as to exclude an inference that he was not the cause of accident. The distance between the spot of the accident and the bus stop, the fact that the bus was at the bus stop coupled with the fact that the motor-cycle was four feet away from the bus stop and that the claimant sustained serious injuries in the road traffic accident at that spot would only lead to one conclusion i.e., the bus hitting the motor-cycle from the hind side resulting in grievous injuries to the claimant. But in order to escape being charge-sheeted, the driver of the bus, who was summoned by the jurisdictional police at Peenya, went to the police station the same night and remained there the whole night along with the bus and on the next morning at 07.45 a.m. gave the police complaint. This is no other evidence except the police complaint against the driver of an
- 31 -
unknown canter lorry being the cause of the accident. It is in order to escape liability and paying compensation to the injured that such a false complaint has been given by the driver of the bus. The Tribunal has not been able to appreciate these facts and on a superficial reading of the evidence on record and without making necessary inferences and without taking into account the preponderance of probabilities in the instant case, has answered issue No.1 in the negative, which we find is unjustified and incorrect. The inferences drawn by the Tribunal are wholly incorrect and cannot be accepted. Hence, the conclusions are also erroneous. In view of the aforesaid discussion, we hold that respondent No.1 / the driver was really culpable and he had indeed caused the accident by dashing the BMTC bus against the hind portion of the motor-cycle of the claimant, resulting in causing grievous injuries to claimant. Point No.1 is hence, answered in favour of the claimant and against the respondents.
28. This takes us to the next point which is the compensation to be awarded to the claimant. As already noted, the Tribunal while answering issue No.1 in the
- 32 -
negative has answered issue No.2 as 'does not survive for consideration' and while dismissing the claim petition has not assessed the compensation payable to the claimant in the instant case.
29. Apart from the oral evidence of the claimant (PW-1) and the doctor PW-2, the following documents were produced by the claimant in proof of the injuries suffered and 100% disability sustained by him:
1 Discharge summary Ex.P-2 2 Disability ID Card Ex.P-3 Concession certificate dated 28.05.2012, wherein causes 3 of loss of functional capacity Ex.P-4 is shown as Traumatic Quadriplegia Electro-neuro Miography 4 Ex.P-5 report 5 MRI Report Ex.P-6 6 Lab Report Exs.P-7, 44 7 Final Bill Ex.P-8 8 Out-patient card Ex.P-9 Ex.P-10 (copy 9 Wound certificates at Ex.P-40) 10 X-ray reports Exs.P-13, 43 Medical bills of various 11 Exs.P-14 to 37 hospitals and Pharmacies 12 Case sheet Ex.P-42 13 OPD Book of Victoria Hospital Ex.P-45
- 33 -
30. The evidence of PW-1 (injured claimant) with regard to the injuries sustained by him is perused by us. According to him, he was an in-patient in Premier Sanjeevani Hospital, Tumkur from 18.09.2011 to 20.09.2011. Thereafter, he was shifted to Sidvin Hospital; he took treatment in the said Hospital till 10.10.2011. He was diagnosed with C6, C7 anterior listhesis with cord compression and paraplegia with weakness of both upper limbs. There was inadequate reflexes and he underwent anterior spinalization for Grade-3 Anterior Listhesis with grade compression with application of anterior spinal plate and fusion of C6 & C7 with iliac bone craft. He underwent Tracheostomy for Tracheal toileting. Further, he was shifted to SDM Ayurvedic Hospital, Udupi and took physiotherapy treatment from 01.01.2012 to 15.06.2012 and 01.04.2013 to 28.02.2014. On being referred by the Medical Board for Disabilities, Victoria Hospital, Bangalore, the District Officer for Welfare for the Disabled, Bangalore Urban District, certified percentage of disability of claimant at 100%, as he had undergone operation for C6-C7, Traumatic Spinal listhesis with Quadriplegia.
- 34 -
31. PW-2 / Dr.Amresh S.Bhaganagere, Assistant Professor of Neuro-Surgery at BMCRI & Victoria hospital, has stated in his affidavit by way of examination-in-chief that, the injured was admitted as an in-patient at Sidvin Hospital from 20.09.2011 to 10.10.2011 and the claimant had suffered following injuries:
(i) C6-C7 Anterior listhesis;
(ii) C6-C7 fracture with subluxation;
(iii) Spinal cord compression;
(iv) Quadriplegia.
31.1. The claimant was operated upon on
22.09.2011 for Anterior C6-C7 discectomy and fusion using Medtronic plate and right iliac crest bone craft done under general anesthesia. He was administered several medications in furtherance of his post-surgery treatment as per the discharge summary. Since the claimant did not show any significant improvement, physiotherapy was advised until signs of improvement in condition. Further, it is stated by PW-2 that the claimant was referred to the Medical Board for Disabilities at Victoria Hospital and a Certificate was issued on 21.05.2012 stating that the claimant is suffering from permanent quadriplegia and 100% permanent disability.
- 35 -
31.2 With regard to claimant's subsequent health condition, it is deposed by PW-2 that, claimant is currently unable to use both hands and legs and he is incapable of any movement without the help of a wheelchair. That, the claimant is permanently disabled from performing day- today functions and leading a normal life. That the claimant needs to be under constant medical treatment and assistance for the rest of his life.
31.3 In his Cross-examination by learned counsel for respondent No.3, which has been adopted by respondent No.2, PW-2 has stated that claimant was taking follow-up treatment in their hospital till that day (03.03.2015). The claimant can breathe and eat, however he has weakness of spinal cord and all four limbs below shoulder. PW-2 has denied the suggestion that the patient with quadriplegia, where there is weakness of all four limbs, can survive for only four to five years. He has categorically stated that since the spinal cord and all four limbs of claimant are damaged irreversibly, the claimant is trolley bound. That, on the basis of damage caused to all four limbs of claimant, PW-2 has assessed disability at
- 36 -
100% based upon the Government of India Guidelines that he has not assessed the disability on the basis of external and internal spinal cord functions. That he has conducted the clinical examination of claimant on the basis of the weakness and severe sensory loss below C-7. The claimant is conscious to identify persons, he can talk but he had no sensory feelings. He has denied the suggestion that claimant does not have 100% permanent disability. It is admitted that in the hospital records, it is shown that the condition of claimant had improved.
32. Ex.P-2 / discharge summary reveals the initial assessment of injured claimant and course of treatment in the hospital. As per the said particulars, after the accident, claimant was immediately shifted to nearby Premier Sanjeevini Hospital wherein he was given primary care and then he was shifted to Sidvin Hospital Private Limited for further evaluation on 20.09.2011 at 01.15. a.m. He had undergone anterior spinal stabilization for grade III anterior listhesis with cord compression with application of anterior spinal plate and fusion of C6-C7 with iliac bone graft. He also underwent tracheostomy for tracheal toileting and later, he was supportively managed
- 37 -
with antibiotics, anti-stress ulcer prophylaxis, BMWHL chest and limb physiotherapy. Following satisfactory improvement, claimant was discharged in stable condition with home care facilities on 10.10.2011.
33. Wound certificate / Ex.P-10 dated 25.09.2011 issued by Premier Sanjeevini Hospital in respect of claimant discloses the following grievous injuries:
• Paraplegia with spinal cord;
• Injury to the right Knee joint with swelling; • Injury to the left hand elbow with swelling;
34. Ex.P-42 is the Case Sheet of claimant maintained at Sidvin Hospital, which depicts admission date as 20.09.2011 and discharge date as 10.10.2011 of claimant and the final diagnosis is mentioned as Anterior- listhesis of C6-C7; Cord compression and paraplegia with weakness of both upper limbs.
35. The Medico-legal register / Ex.R-2 of Premier Sanjeevini Hospital dated 18.09.2011 at 11.30 p.m. shows that the claimant was admitted with alleged history of "RTA" near by Parle-G factory Tumkur Service Road at 09.30 p.m. He had sustained injury to hand and left elbow
- 38 -
joint, right knee joint swelling; loss of sensation at both lower limbs.
36. On an overall consideration of the evidence on record, this Court accepting the evidence of the doctor with regard to assessment of percentage of permanent disability, would reckon the same at 100%.
37. We have assessed the whole body disability at 100% as the claimant has become paraplegic. In this regard, we have placed reliance on the judgment of the Hon'ble Supreme Court speaking through Raveendran J., in the case of Raj Kumar vs. Ajay Kumar, [2011 (1) SCC 343] in the matter of assessment of permanent disability. The relevant paragraphs read as under:
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the
- 39 -
incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered
- 40 -
permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different
- 41 -
from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of
- 42 -
compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.)
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means 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
- 43 -
the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. 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 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.
14. 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
- 44 -
carpenter, the actual loss of earning capacity may virtually be hundred per cent, 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.
15. It may be noted that when compensation is awarded by treating the loss of future earning
- 45 -
capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian
- 46 -
equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several
- 47 -
instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
- 48 -
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
38. Further, a co-ordinate Bench of this court of which one of us (Nagarathna J.) was a member, in MFA No.6200/2018, disposed off on 08.07.2019 (Sri
- 49 -
Marigowda vs. Shivanna S/o. Ningaiah) has held that in case, the claimant is suffering from paraplegia where there are no motor movement of lower limbs with bowel and bladder dysfunction, etc., and the patient requires an attendant to look after his daily activities and needs a nurse for physiotherapy to improve his living condition, the permanent disability must be assessed at 100% and accordingly, compensation on the head of loss of earning capacity must be awarded.
39. Another co-ordinate Bench of this Court in the case of Mehboobsab vs. Mahesh, 2016 ACJ 2785 has held that where the injuries resulted in paraplegia, functional disability must be assessed at 100% and the same would be just and proper.
40. In Mohan Kumar vs. K.N.Narayanasamy, 2018 ACJ 2503, a Division Bench of Madras High Court at paragraph 18 has observed that paraplegia is an impairment of motor or sensory function of the lower extremities. Individuals with paraplegia can range in their level of disability, requiring treatments varying from case to case. From a rehabilitation standpoint, the most
- 50 -
important factor is to gain as much functionality and independence back as possible. In that case, the Army Hospital had assessed 100% disability and the same was accepted.
41. Having assessed the permanent disability of the claimant at 100%, we now proceed to assess the compensation to be awarded to him. The claimant has produced a copy of Bank Statement / Ex.P-48 for the period from 01/01/2009 to 30/01/2015 pertaining to the Savings Account maintained by the claimant at Canara Bank, Subramanya Nagar Branch, Bengaluru, which shows periodical operation by way of withdrawal from and deposits made to the said account. Ex.P-49 is the copy of PAN Card showing date of Birth of claimant as 06.05.1975. He has also produced a copy of blank letter head / Ex.P-11 in respect of the garage owned by claimant, namely "Sri Manjunatha Auto Garage" at No.1, Kantheerava Studio Main Road, Muneshwara Block, Nandini Layout, Bangalore- 560 096. Ex.P-11 is the BPL Ration Card bearing No.BGNU00248348 with details of Family members of claimant viz., wife and a daughter aged three years.
- 51 -
42. All these documents show that the claimant was leading a normal life and earning his livelihood by running a garage prior to the accident. The accident is of the year 2011 and the claimant was aged 36 years as on the date of accident. Though no specific documents were produced to show the exact monthly income earned by the claimant prior to accident, it is for this Court to assess the same on the basis of evidence on record and having regard to his age and occupation.
43. In the circumstances, we assess the compensation as under rather than remitting the matter to the Tribunal for an assessment of the same, as according the learned counsel for the appellant, the claimant has been deprived of compensation for the last nine years. We deem it proper to award Rs.2,00,000/- towards pain and suffering; Rs.11,59,068/- (rounded off to Rs.11,60,000/-) towards medical expenses, as has been stated at the Bar after verification of the original record by learned counsel on both sides; Rs.50,000/- towards incidental charges including attendant, nutrition and conveyance charges during the treatment period and follow up treatment.
- 52 -
44. Since the claimant was having his own auto- garage and the accident took place in September 2011, we have notionally assessed his monthly earning at Rs.10,000/-. The assessment of permanent disability for paraplegia is 100%. Having regard to the age of the claimant being 36 years, appropriate multiplier of '15' is applied. Consequently, the compensation on the head of loss of future earning capacity is 100% of Rs.10,000/- x 12 x '15' = Rs.18,00,000/-. Since, the claimant is laid up for the rest of his life and his wife has to work by taking up a job to earn for the family, a sum of Rs.3,00,000/- is awarded towards future attendant charges. Towards loss of amenities, a sum of Rs.3,00,000/- is awarded. A sum of Rs.3,00,000/- is awarded towards future medical expenses. Thus, the total compensation is Rs.41,10,000/- . The same shall carry interest at the rate of 6% per annum, except on the head of future medical expenses and future attendant charges, which amounts shall not carry any interest i.e., totally Rs.6,00,000/-.
45. The said assessment of compensation as aforesaid is depicted in table as hereunder:
- 53 -
Sl. Heads of
Amount awarded
No. compensation
1. Pain and suffering Rs. 2,00,000=00
2. Medical Expenses Rs. 11,60,000=00
3. Incidental Charges, Rs. 50,000=00
including
attendant, nutrition
and conveyance
charges during the
treatment period
and follow up
treatment period
4. Loss of Future Rs. 18,00,000=00
Earning Capacity
[100% of Rs.10,000/- x
12 x '15']
5. Future attendant Rs. 3,00,000=00
charges.
6. Loss of Amenities Rs. 3,00,000=00
7. Future Medical Rs. 3,00,000=00
Expenses
TOTAL: Rs. 41,10,000=00
46. Respondents are jointly and severally liable to pay the compensation to the appellant/claimant. The 2nd respondent BMTC is vicariously liable for the negligent act of respondent / driver of the BMTC bus. Respondent No.3/insurance company which has issued the insurance policy in respect of the bus in question, shall indemnify respondent No.2/BMTC. Respondent No.3 insurer shall deposit the compensation amount with up to date interest as delineated above within a period of four weeks from the date of receipt of a certified copy of this judgment.
- 54 -
47. Out of the total compensation awarded, 75% of the same shall be deposited in any Post office and/or nationalized bank(s) in the name of claimant for an initial period of ten years. He shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him after due identification.
Thus, the appeal is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE RK/-