Bangalore District Court
Harish Kumar.A.R vs Jubilant Food Works Ltd on 25 October, 2024
KABC020298492021
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.J.M. (SCCH-26) AT BENGALURU.
DATED THIS THE 25th DAY OF OCTOBER 2024
PRESENT: SRI. APPASAB NAIK,
B.A.L.L.B.(Spl)
XXIV ADDL. SCJ & ACJM &
MEMBER-MACT BENGALURU.
M.V.C No.5067/2021
PETITIONER: Harish Kumar A.R,
W/o. A G Ramasetty,
# 55, 1st Main, 3rd Cross,
Ganganagar, Age 43,
R T Nagar,
Bangalore - 560 102.
Karnataka - 560 032.
(By Sri. Naveen Kumar.D.V - Adv.,)
V/s.
RESPONDENTS: 1. Jubilant Food Works Ltd.,
# 1573, First Floor,
Sector - 1 Agara, HSR Layout,
Bangalore - 560 102.
(Owner of two wheeler bearing
Reg.No.KA-04-JH-2116)
(Exparte)
2. The New India Assurance Co. Ltd.,
Regional Office,
SCCH - 26 2 MVC No.5067/2021
# 2 - B, Unity Building Annex,
P Kalinga Rao Road, (Mission Road)
Bangalore - 560 027.
(Insurer of bearing No.KA-04-JH-2116)
(Policy No.67140031200100011736
valid from 01.01.2021 to 31.12.2021)
(By Sri. Raghavendra Apte - Adv.,)
:: JUDGMENT::
The petition is filed by the petitioner under Sec.166 of Motor Vehicles Act, 1989 seeking to award compensation of Rs.15,00,000/- for the grievous injuries sustained by him, in road traffic accident.
2. The brief facts of the petitioner's case are as under:
It is the case of the petitioner that on 24.10.2021 at about 8.30 pm., when the petitioner was proceeding as pedestrian on Ganakal main road, near Sankranti Daba MRP Outlet, Bangalore city, at that time, rider of Dominos Pizza two wheeler bearing reg.No.KA-04-HJ- 2116 ridden the same in a rash and negligent manner and dashed to the said petitioner. Due to said impact, the petitioner sustained grievous injuries to the head SCCH - 26 3 MVC No.5067/2021 and other parts of the body. Immediately after the accident, the petitioner was taken to BGS Hospital, Bangalore later he was taken to KIMS Hospital, Bangalore. Wherein the petitioner took treatment as an inpatient by spending Rs.2 lakhs.
The alleged accident had occurred due to rash ane negligent riding of the rider of the two wheeler bearing reg.No.KA-04-JH-2116. The Kengeri Traffic police have registered a case against the rider of the said vehicle in their crime No.161/2021 under section 279 and 337 of IPC. The 1st respondent being the RC owner and 2nd Respondent being the insurer of the offending two wheeler bearing reg.No.KA-04-JH-2116 are jointly and severally liable for the payment of compensation. Hence, he has prayed to award compensation of Rs.15,00,000/- from the respondents.
3. The notice of the petition has been duly served on Respondent No.1 and 2. The Respondent No.1 has not appeared before this Tribunal. Hence, Respondent No.1 has been placed exparte. Respondent No.2 has SCCH - 26 4 MVC No.5067/2021 appeared before this tribunal and filed its written statement.
4. Respondent No.2 - Insurance Company filed its objection by denying the petition averments. Respondent No.2 submitted that the first Respondent - owner of the offending vehicle and the concerned police have not complied with the mandatory provisions of Sec.134(c) and 158(6) of MV Act. He has also contended that the rider of the offending vehicle was not having valid driving licence. Respondent No.2 has admitted that, it has issued a policy of insurance in favour of first respondent. Further contended that, the rider of vehicle has not valid and effective driving licence at the time of accident. The respondent denied the allegation that the alleged motor cycle was involved in the alleged accident and it was driven in a rash and negligent manner. The respondent denied the age, income, avocation and nature of accident. This respondent has right to contest the petition on behalf of owner of the vehicle also as per Sec.170 of M.V. Act. Hence, it has SCCH - 26 5 MVC No.5067/2021 prayed to dismiss the petition.
5. On the basis of the above pleadings, my predecessor in office has framed the following issues :-
ISSUES
1. Whether the petitioner proves that on 24.10.2021 at about 8.30 pm., he was proceeding as pedestrian on Ganagakal Main Road, near Sankrati Daba, MRP out let, Bangalore City, at that time, a Dominos Pizza two wheeler bearing reg.No.KA-04-HJ-2116 ridden by its rider in a rash and negligent manner without observing any traffic rules and dashed to the petitioner, due to this act petitioner fell down and sustained grievous injuries as mentioned in claim petition ?
2. Whether petitioner is entitled for compensation as prayed in the petition? If so, from which respondent?
3. What Order or Award?
6. The petitioner in order to prove his case he himself has examined as PW.1 and got marked 15 documents as Ex.P.1 to 15. Dr.Naveen Kumar H R has examined as PW.2 and got marked one document as Ex.P.16 and One Medical Record Technician at KIMS Hospital has examined as PW.3 and got 4 documents as Ex.P.17 to Ex.P.20 and closed their side evidence.
7. The Respondent No.2 - insurance company SCCH - 26 6 MVC No.5067/2021 has not adduced their rebuttal evidence.
8. Heard the argument of learned counsel for the Petitioner and respondent No.2 sides.Perused the entire records.
9. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : As per final order for the
following:
REASONS
10. Issue No.1: In order to prove the actionable negligence, petitioner has got examined himself as PW.1. He has filed affidavit by way of examination in chief and has reiterated the averments made in the petition and has produced FIR, complaint, spot mahazar, rough sketch, IMV report and charge sheet as Ex.P.1 to Ex.P.4, 7 and 11, by these oral and documentary evidence Petitioner proved that, there was an accident in which he sustained injury.
11. On perusal of complaint Ex.P.2 which reveals that Petitioner he himself has lodged the complaint and SCCH - 26 7 MVC No.5067/2021 on the basis of the complaint, Kengeri police have registered FIR against the rider of the two wheeler bearing reg.No.KA-04-JH-2116.
12. With regard to negligence, Respondent No.2- insurance Company has mainly contended that, the accident occurred due to the negligence on the part of petitioner himself as he was trying to cross the road where there was no provision for pedestrian cross. Except this suggestion, Respondent- Insurance Company has not produced any material to show the non-involvement and negligence of the petitioner. The complaint has been filed on the very next of day of alleged accident against the rider of offending vehicle for his negligence. Neither the owner nor the rider of the offending two wheeler bearing reg.No.KA-04-JH- 2116 has challenged the charge sheet. The I.O. has filed charge sheet after complete investigation based on the evidences available at the spot.
13. All the records indicate the negligence of rider of the offending two wheeler bearing reg.No.KA-04-JH-
SCCH - 26 8 MVC No.5067/2021 2116. Respondent No.2 - insurance Company has also failed to prove the allegations of the petitioner with regard to the injury sustained by him in the alleged accident. By the above materials and evidences it is clear that the Petitioner sustained injuries in RTA due to rash and negligent riding by the rider of the offending two wheeler bearing reg.No.KA-04-JH-2116. Hence, Issue No.1 is answered in the Affirmative.
14. Issue No.2: The Petitioner states that he was aged about 46 years as on the date of accident. Due to the accident he has sustained grievous injuries. Immediately he was taken to BGS Hospital then he was taken to KIMS Hospital wherein he took treatment as an inpatient. As per Ex.P.12 - discharge summary of KIMS Hospital, he took treatment from 25.10.2021 to 28.10.2021 i.e., for 4 days. At the time of accident, he was a working as driver and coolie and earning Rs.25,000/- per month. Due to the accidental injuries he was not in position to attend his regular work from the date of accident till today and he lost his entire SCCH - 26 9 MVC No.5067/2021 income, not in a position to rejoin his work and to do any other work.
15. Petitioner has examined Dr. Naveen Kumar. H.R as PW.2 and got marked Ex.P.16. He has stated that, petitioner sustained Jaw bone (Mandible) fracture at RTA and he was admitted as an inpatient at KIMS Hospital on 25.10.2021. At the initial examination, he had Mandibular fracture (left angle and right body fracture). He underwent open reduction and internal fixation of mandibular fracture under GA on 27.10.2021 at KIMS hospital. Further he has stated that, patient made a gradual recovery over time. On examination at BGS Hospital to assess faciomaxillo mandibular function and patient complains of pain and difficulty in chewing hard foods, pain on full extent of mouth opening and dragging sensation, complaints of tingling sensation of lower molar teeth. Further stated that, on examination he has noticed vitals stable, no wounds, implant exposure noted at right gingivo buccal sulcus with associated infection, TMJ joint tenderness SCCH - 26 10 MVC No.5067/2021 on full extent of mouth opening, palpable implants at left angle and right body of mandible with tenderness and hypersensitivity of lower molar teeth. He has assessed his physical impairment for mandible and maxillofacial region. Maxillofacial disability and impairment due to trauma:Journal of maxillofacial and oral surgery. PW.2 has assessed total loss of functional efficiency of lower jaw at 17.6% and total functional loss at 37.6% and 37.6% of loss of facial component can estimate loss up to 10% in relation to whole body.
16. During cross examination PW.2 has deposed that ನಾನು ಅರ್ಜಿದಾರನಿಗೆ ಚಿಕಿತ್ಸೆ ನೀಡಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನಾನು Assessment ಮಾಡುವ ಸಮಯದಲ್ಲಿ ಹಳೆಯ ವೈದ್ಯಕೀಯ ದಾಖಲೆಗಳನ್ನು ನೋಡಿರುತ್ತೇನೆ. ಅರ್ಜಿದಾರನಿಗೆ ಯಾವುದೇ ಸಮಸ್ಯೆ ಇಲ್ಲದಿದ್ದರೆ Follow up treatment ಅವಶ್ಯಕತೆ ಇರುವುದಿಲ್ಲ. ನಾನು Assessment ಮಾಡುವ ಸವ ುಯದಲ್ಲಿ ಅರ್ಜಿದಾರನಿಗೆ Follow up treatment ತೆಗೆದುಕೊಂಡ ಬಗ್ಗೆ ವಿಚಾರಿಸಿರುತ್ತೆಃನೆ. ಅರ್ಜಿದಾರನು ನನಗೆ ತೊಂದರೆಯಿದ್ದರೂ Follow up treatment ತೆಗೆದುಕೊಂಡಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ನಾನು ಈ ಮೇಲೆ ಹೇಳಿದ ಸಂಗತಿಯ ಬಗ್ಗೆ ದಾಖಲೆಯಲ್ಲಿ ನಮೂದು ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನಾನು Assessment ಮಾಡುವ ಸವುಯದಲ್ಲಿ X-ray ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. ನಾನು Assessment ಮಾಡುವ ಸವುಯದಲ್ಲಿ ಗಾಯವು ಸರಿಯಾಗಿತ್ತು ಎಂದರೆ ಸರಿ.ಅರ್ಜಿದಾರನಿಗೆ Infection and complication ಆಗಿರುವುದರಿಂದ ಒಳಜೋಡಣೆ ತೆಗೆಯಲು ಸಲಹೆ ನೀಡಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿ. ಅರ್ಜಿದಾರನಿಗೆ ಇನ್ನೂ ಮುಂದುವರೆದ ಚಿಕಿತ್ಸೆ ಅವಶ್ಯಕತೆ ಇರುವುದರಿಂದ ನಾನು Premature assessment ಮಾಡಿರುತ್ತೇನೆ SCCH - 26 11 MVC No.5067/2021 ಎಂದರೆ ಸಾಕ್ಷಿಯು ನನಗೆ ಹೇಳಿದ ತೊಂದರೆಗಳ ಆಧಾರದ ಮೇಲೆ ಮತ್ತು ಅರ್ಜಿದಾರನಿಗೆ Infection and Implantation exposition ಆಗಿದ್ದರಿಂದ ನಾನು ಅರ್ಜಿದಾರನ Functional disability assessment ಮಾಡಿರುತ್ತೇನೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ಒಳಜೋಡಣೆ ತೆಗೆದ ನಂತರ ಅರ್ಜಿದಾರನಿಗೆ ಆದ infection ಮತ್ತು ತೊಂದರೆಗಳು ಕಡಿಮೆ ಆಗುತ್ತದೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಅವಕಾಶ ಇರಬಹುದು ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ನಾನು ಶಸ್ತ್ರ ಚಿಕಿತ್ಸೆಗೆ ರೂ.80,000/- ಖರ್ಚು ಬರುತ್ತದೆ ಎನ್ನು ವ ಬಗ್ಗೆ ದಾಖಲೆಗಳನ್ನು ಕೊಟ್ಟಿರುವುದಿಲ್ಲ. ನಾನು ನನ್ನ ಸಾಕ್ಷಿ ಮುಖ್ಯ ವಿಚಾರಣೆಯಲ್ಲಿ Extra points ನಲ್ಲಿ ಹೇಳಿದ ನ್ಯೂ ನ್ಯತೆಗಳು ಶಸ್ತ್ರ ಚಿಕಿತ್ಸೆ ಆದ ನಂತರ ಹೋಗುತ್ತದೆ ಎಂದರೆ ಸರಿ. Facio maxillary ಆದ ಗಾಯದಿಂದ ಅರ್ಜಿಿದಾರನ ಉದ್ಯೋಗಕ್ಕೆ ಯಾವುದೇ ತೊಂದರೆ ಆಗುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಆತನ ನಿನನಿತ್ಯದ ಕಾರ್ಯಚಟುವಟಿಕೆಗಳಿಗೆ ತೊಂದರೆ ಆಗುತ್ತದೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ.
17. At this juncture, I would like to go through guidelines in respect of assessment of permanent disability in the cases of maxillofacial disability which has been relied by the advocate for petitioner.
As per which Estimation for the compensation should be in relation to the whole body - The AMA Guides to the Evaluation of Permanent Impairment, the AAOMS supports the following classification and rating impairment of whole person. When a patient belongs to class 4 when facial disfigurement is to severe that it precludes social acceptance. Massive distortion of normal facial anatomy, or severe bilateral total facial paralysis, or loss of major portion of nose. 50-60% loss of facial component can estimate loss upto SCCH - 26 12 MVC No.5067/2021 10-15% in relation to whole body 60-70% estimates to 15-20% 70-80% estimates to 20-25% 80-90% estimates 25-30% 90-100% estimates 30-40 loss in relation to whole body .
18. Petitioner has also examined one Medical Record Technician at KIMS Hospital as PW.3 and through him got marked 4 documents as Ex.P.17 to Ex.P.20.
19. Therefore by considering the evidence on record and doctor opinion, I am of the opinion that, the disability of the petitioner has to be taking into consideration for his physical disability to award compensation. So, in view of all these circumstances, the petitioner is entitled for the compensation under the following different heads:
20. LOSS OF FUTURE EARNINGS ON THE ACCOUNT OF DISABILITY.
According to the petitioner he was working as driver and coolie and earning Rs.25,000/- per month. To support of his claim with respect to avocation and SCCH - 26 13 MVC No.5067/2021 earnings, he has not produced any document nor examined concerned person. Therefore, the income of the petitioner has to be taken into consideration as notional income.
21. 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 occurred during the year 2021. Therefore, Rs.15,000/- has to be taken into consideration as monthly income of the petitioner.
22. The Petitioner has stated that he was aged about 46 years, in support of his age he has produced his Aadhar card at Ex.P.13, as per which he was born on 22.03.1975 and he was aged about 46 years as on alleged accident. Therefore, for age group of 46 to 50, the proper multiplier applicable to be the case on hand is '13'.
SCCH - 26 14 MVC No.5067/2021
23. The Petitioner claims that due to accidental injuries he was not able to work and lost his income and earning capacity. PW.2 assessed total disability to the whole body at 10%. For the purpose of calculation of loss of future income, considering the evidence of PW.2, I am of the opinion that, it is proper to take 10% disability to the whole body. Hence the petitioner is entitled for the compensation of Rs.2,34,000/- (Rs.15,000/- X 12 X 13 X 10/100) towards loss of future income on the account of disability of the petitioner.
24. PAIN AND SUFFERINGS: So far as the compensation under non-pecuniary damages are concerned, considering the fact that the Petitioner has suffered grievous injuries and in total he was inpatient for a period of 4 days in total which caused him to immeasurable mental agony and pain. Hence, I am of the opinion that an amount of Rs.40,000/- would be just and proper compensation under the head pain and sufferings.
SCCH - 26 15 MVC No.5067/2021
25. LOSS OF AMENITIES:- Further on perusal of evidence of PW.1, it reveals that, petitioner has sustained injury and the same is mentioned above paras. The petitioner was aged about 46 years at the time of accident. Considering the above facts and on perusal of evidence of PW.1 and PW.2, considering the nature of injuries sustained by the petitioner, I deem it just and reasonable to grant for compensation of Rs.40,000/- under the head of loss of amenities.
26. ATTENDANT, FOOD AND NOURISHMENT AND CONVEYANCE CHARGES: As per discharge summary of KIMS Hospital, as per Ex.P.12 he took treatment from 25.10.2021 to 28.10.2021 i.e., for 4 days. Therefore, it is just and reasonable to award compensation of Rs.6,000/- under the head of conveyance, food, nourishment and attendant charges.
27. LOSS OF INCOME DURING LAID UP PERIOD AND REST PERIOD:- With regard to loss of earnings during treatment, considering 4 days and SCCH - 26 16 MVC No.5067/2021 around 3 months for rest is considered and loss of earnings during treatment is calculated for 2 months. As the monthly income of the Petitioner is already considered as Rs.15,000/- per month, Petitioner is awarded Rs.30,000/- towards loss of earning during laid up period.
28. MEDICAL EXPENSES:- Under the pecuniary damages, expenses relating to treatment, Hospitalization and medicines, the Petitioner has relied on Ex.P.14 - 4 medical prescriptions and Ex.P.15 - medical bills for total of Rs.55,884/-. As there is no dispute regarding the medical expenses by the respondent insurance company and more over it is considered as genuine document. Therefore, Petitioner is awarded Rs.55,884/- towards Medical Expenses.
29. FUTURE MEDICAL EXPENSES: PW.2 has deposed that, due to complication and infection part need to be corrected by doing implant removal surgery. The estimated surgery cost under General Anaesthesia and hospitalisation will require Rs.80,000/-. During SCCH - 26 17 MVC No.5067/2021 cross examination PW.2 has admitted that, he has not given any document with related to surgery. Therefore, considering the nature of injury and complication of the same, it is inclined to award Rs.20,000/- towards Future Medical Expenses.
Sl. Compensation heads Compensation
No. amount
1. Loss of future earning Rs. 2,34,000/-
capacity due to permanent
disability
2. Towards Pain and Rs. 40,000/-
Sufferings
3. Towards loss of Amenities Rs. 40,000/-
4. Towards attendant, food Rs. 6,000/-
and nourishment and
conveyance charges
5. Towards loss of income Rs. 30,000/-
during laid up period and
rest period
6. Towards medical expenses Rs. 55,884/-
7. Future medical expenses Rs. 20,000/-
TOTAL Rs. 4,25,884/-
By 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.4,25,884/- under the following SCCH - 26 18 MVC No.5067/2021 heads:
30. Regarding Interest & Liability: Having regard to the nature of the claim and current bank rate of interest, this Tribunal is of the view that if interest at the rate of 6% p.a, is awarded, it would meet the ends of justice.
31. Respondent-insurance company has failed to prove the negligence of Petitioner in the accident. The Respondent No.1 being the R.C. Owner and Respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the above compensation with interest at 6% p.a. to the Petitioner as issuance of policy and subsistence of policy is not disputed. Accordingly, I answer Issue No.2 in the 'Partly affirmative'.
32. 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 Motor Vehicles Act is hereby partly allowed with cost.
SCCH - 26 19 MVC No.5067/2021 The petitioner is entitled for compensation of Rs.4,25,884/- (Rupees four lakhs twenty five thousand eight hundred and eighty four only) with interest @ 6% p.a. from the date of petition till the date of deposit.
The respondent No.1 & 2 are jointly and severally liable to pay compensation to the petitioners. However, the respondent No.2 being insurer of offending Motor Cycle is directed to deposit the compensation amount in this tribunal within one month from the date of this order.
The expenses to be incurred for future medication shall not carry any interest.
After deposit of compensation amount, considering the age of the petitioner, release the entire amount to the petitioner through NEFT/RTGS by way of E-payment on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 25th October 2024) (APPASAB NAIK) XXIV ADDL. SCJ & ACJM, MEMBER, MACT, BENGALURU.
SCCH - 26 20 MVC No.5067/2021
::A N N E X U R E::
I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW.1 : Harish Kumar.A.R
PW.2 : Dr.Naveen Kumar HR
PW.3 : Anupama R
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 True copy of FIR
Ex.P.2 True copy of complaint
Ex.P.3 True copy of spot panchanama
Ex.P.4 True copy rough sketch
Ex.P.5 & 6 True copy of statement of witnesses
Ex.P.7 True copy of Motor Vehicles Accident report
Ex.P.8 True copy of wound certificate
Ex.P.9 True copy of notice given u/s 133 of IMV
Act
Ex.P.10 True copy of reply
Ex.P.11 True copy of charge sheet
Ex.P.12 Discharge summary
Ex.P.13 Notarized copy of Aadhar card
Ex.P.14 4 medical prescriptions
Ex.P.15 Medical bills of Rs.55,884/-
Ex.P.16 Out patient record
Ex.P.17 Authorization letter
Ex.P.18 True copy of MLC register
SCCH - 26 21 MVC No.5067/2021
Ex.P.19 True copy of police intimation memo
Ex.P.20 Case sheet
III. LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT:-
---NIL---
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENT:-
---NIL---
(APPASAB NAIK) XXIV ADDL. SCJ & ACJM, MEMBER, MACT, BENGALURU.Digitally signed
APPASAB by APPASAB
RAMAPPA NAIK
RAMAPPA Date:
NAIK 2024.11.05
17:32:59 +0530