Bangalore District CourtSri.Venkatachalapathi vs The Managing Director on 28 September, 2020IN THE COURT OF SMALL CAUSES (SCCH­23)\n                AT BENGALURU\n   DATED THIS THE 28th DAY OF SEPTEMBER 2020\n\nPRESENT:        SMT.ASHWINI M. HATTIHOLI\n                                (B.Com., LL.B),\n                    XXI ADDL. SCJ & ACMM\n                    MEMBER ­MACT,\n                    BENGALURU.\n\n                      MVC. No. 5320/2019\nPetitioner      :           Sri.Venkatachalapathi,\n                            Aged about 68 years,\n                            S/o Muthegowda,\n                            R/at.No.49/2, 17th 'A' main road,\n                            Maruthi Block, Srinagar,\n                            Bengaluru­560050.\n\n                            (By Sri.K.T.Madhu, Advocate )\n                                   v/s\nRespondents     :         The Managing Director,\n                          BMTC, K.H.Road,\n                          Shanthinagar,\n                          Bengaluru­560027.\n                          (RC owner of the BMTC Bus\n                          bearing No.KA­01­FA­0626)\n\n                            (By Sri.M.N.Krishna, Advocate)\n                      JUDGMENTThis claim petition is filed by the petitioner undersection\n166of the Motor Vehicles Act, claiming compensation of\nRs.20,00,000/­ from the respondent on account of the injuries\nsustained by him in a Road Traffic accident on 6.7.2019.SCCH-23                         2              MVC No.5320/20192.    It is the case of the petitioner that on 6.7.2019 at\nabout 5.30 p.m., while he was stepping into the BMTC bus\nbearing Reg. No.KA­01­FA­0626 at Kengeri Satellite Bus stand,\nMysore road, Kengeri, Bengaluru, in order to travel towards\nRamohalli (Bengaluru south taluk), the driver of the said bus\nmoved the bus in a negligent manner without observing the fact\nthat he was getting into the bus. As a result, the petitioner fell\ndown and the rear wheel of the bus ran over the left leg of the\npetitioner, due to which he sustained grievous crush injuries to\nhis left leg.   Immediately, he was shifted to Mathru hospital,\nKengeri, where he was given first aid treatment.     Later on the\nsame day he was shifted to GIMS hospital, Kengeri, where he\nwas again given first aid and referred to a higher center. As\nsuch he was shifted to Sanjay Gandhi Institute of Trauma\nhospital, Bengaluru and was admitted there as an inpatient for\na period of 13 days, where he underwent multiple surgeries.\nDuring the course of treatment he developed abnormal kidney\nand liver functions. Hence he was referred to Victoria hospital,\nBengaluru, wherein the duty doctor gave him some initial\ntreatment relating to kidney and liver.   He was then advised to\nget himself admitted after two days, since the beds in all the\nwards were full.   Accordingly after two days he was again taken\nto Victoria hospital, where he was admitted as an inpatient for\n41 days and was treated by the Doctors of Nephrology,\nGastroenterology and Ortho departments. During the course ofSCCH-23                          3              MVC No.5320/2019treatment, the petitioner developed Gangrene in the left leg.\nHence the above knee amputation of the left leg was done. That\nthe petitioner is still under the follow­up treatment and has\nspent Rs.5,00,000/­ towards medical expenses, food and\nnourishment,   conveyance,      attendant and    other incidental\ncharges. The Kengeri Traffic police registered a case against the\ndriver of the said BMTC Bus in Crime No.83/2019, undersections 279and337of IPC. Prior to the accident the petitioner\nwas hale and healthy and was working as a coolie at Bengaluru\nSafety Glass works situated at Bommasandra, Bengaluru and\nearning a sum of Rs.15,000/­ p.m.         Due to the accident the\npetitioner lost his left lower limb and is unable to walk\nindependently. He is also not able to attend his normal routine\nactivities which he was carrying on prior to the accident.\nTherefore   the    petitioner    claims    a    compensation       of\nRs.20,00,000/­ under all heads along with cost and interest @\n12% p.a.3. After service of notice, the respondent appeared before\nthe court and filed written statement specifically denying the\npetition averments. Further, emphatically denied the rashness\nand negligence attributed to the driver of the BMTC Bus bearing\nNo.KA­01­FA­0626. On the contrary, submitted that the BMTC\nbus referred above was in a scheduled trip from TTMC, Kengeri\nto Taverekere. In order to move the Bus from Kengeri bus stop\ntowards Mysore road, when the driver of the said bus slowly\nstarted moving it in front of the TTMC, Kengeri to Mysore roadSCCH-23                           4           MVC No.5320/2019junction, at that point, the petitioner attempted to get into the\nrunning/ moving BMTC bus from the front automatic closed\ndoor. In the due course he lost the control and fell down under\nthe rear wheel of the Bus and sustained the alleged grievous\ninjuries to the left leg.     In the alleged accident no other\npassenger was injured. The petitioner knowing fully well that\nattempting to board the running bus would result in injuries,\ndid so. Hence, the sole contributory negligent act of the\npetitioner resulted in the alleged accident.      Therefore the\nrespondent is not vicariously or otherwise liable to pay any\ncompensation amount as claimed in the petition.     In the police\ncomplaint and petition, the petitioner has falsely implicated the\nBMTC bus. That the compensation claimed is highly excessive\nand imaginary.     Further the respondent has paid a sum of\nRs.10,000/­ to the petitioner towards interim compensation on\n12.7.2019, without prejudice to the grounds urged in the claim\npetition. On these grounds prayed to dismiss the claim petition\non exemplary costs.4. On the basis of the above pleadings, my predecessor­\nin­office framed the following;ISSUES1.    Whether the petitioner proves that, on 6­7­\n           2019 at about 5.30 p.m on Kengeri Satellite\n           Bus   stand,    Mysore    road,    Kengeri,\n           Bengaluru, he sustained injuries in RTA\n           caused by the driver of the BMTC busSCCH-23                        5                 MVC No.5320/2019bearing No.KA­01­FA­0626 on account of\n            rash and negligent driving ?2.    Whether the petitioner is entitled for\n            compensation ? If so, to what amount and\n            from whom ?3.    What Order or award?5.    During evidence, the petitioner got himself examined\nas P.W.1. Ex.P1 to P14 were marked on his behalf. Dr.Nagaraj\nB.N, S/o late B.K.N Swamy, Orthopaedic surgeon, SOADS was\nexamined as PW.2 and Ex.P18 to 20 were marked through this\nwitness. On the other hand, the driver of the BMTC bus\nbearing KA­01­FA­0626 was examined as RW.1. Ex's.R1 to R6\nwere marked.6.    The counsel on both the sides filed their written\narguments. Further the counsel appearing for the petitioner\nalso addressed his oral arguments.        Perused the entire\nmaterials placed on record. My answers to the above issues\nare as follows:­\n\n\n            Issue No.1:     In the Affirmative\n\n            Issue No.2:     Partly in the affirmative\n\n            Issue No.3:     As per final order\n\n      for the followingSCCH-23                          6              MVC No.5320/2019REASONS7.      ISSUE No.1 :      It is well known that the initial\nburden is squarely on the claimant to establish negligence\nwithout which proof, no compensation can be awarded. In the\nbackground of the principle that proof of negligence is a sine­\nqua­non to sustain a claim; the proof displayed by the parties\nto the lis ought to be analyzed in order to unveil the truth\nregarding rival contentions.8.      The evidence affidavits filed by the petitioner as\nwell as respondent are nothing but replica of their respective\npleadings.    However, perusal of the same reveals that the\nrespondent does not deny the occurrence of the accident on\nthe relevant date, time and place.        Infact the factum of\naccident was admitted by RW.1, in the course of his cross\nexamination as " ಅಪಘಘತವವ ಕಕಕಗಕಗರಯ ನಮಮ ಬಸಸ‍ನಲಘಲಣದ ವಘವಪಪಯಲಲ\nಆಗರರತಪದಕ ಎಕದರಕ ನಜ." The specific defence of the respondent is\nthat the sole contributory negligent act of the petitioner\nresulted in the accident. In the same line, suggestions were\nmade to PW.1 which he outrightly denied as follows: " ನಘನರ\nಕಕಕಗಕಗರ ಬಸಸ‍ ನಲಘಲಣದ ಹಕಹರಭಘಗದ ಗಕಗಟಟಲಲ ಬಸಸ‍ ಹತಪದಕಲ. ಅಲಲ ನಲಘಲಣ\nಇಲಲದಕಗ ಇದಲರಹ ಸಹ ನಘನರ ಗಕಗಟಟಲಲ ಮರಚಚದ ಬಘಗಲನ ಬಸಟಲಲ ಹತಪಲರ ಪಪಯತಟ\nಪಟರಟ , ಕಕಳಗಕ ಬದಲದಕಲಗನಕ ಎಕದರಕ ಸರಯಲಲ. ನಘನರ ಹಕಹಗಗರತಪದಲ ಬಸಸನಟ ಹತಪಲರ\nಹಕಹಗಗ ನನಟ ತಪಪನಕದ ಬದರಲ ಗಘಯಗಕಹಕಡದಕಲಗನಕ ಎಕದರಕ ಸರಯಲಲ. ನನಗಕ 72\nವರರ ವಯಸಘಸಗದಲರಕದ ನನಟ ಅಜಘಗರಹಕತಕಯಕದ ಬಸಸನರಟ ಹತಪಲರ ಹಕಹಗಗSCCH-23                            7               MVC No.5320/2019ಅಪಘಘತ ಮಘಡಕಕಹಕಡದಕಲಗನಕ ಎಕದರಕ ಸರಯಲಲ."            Per contra, going\nfurther    PW.1   categorically    answered   to    the   aforesaid\nsuggestions as " ನಘನರ ಬಸಸನರಟ ಹತಪಲರ ಹಕಹಗದಘಗ ಮರಕದನ ಚಕಪದ ಹತಪರ\nಬದಲರರತಕಪಗನಕ. ಸಘಕಕಯರ ಸಸಇಚಕಚಯಕದ, ಒಕದರ ಕಘಲರ ಬಘಗಲನಲಲ ಮತರಪ ಒಕದರ\nಕಘಲರ ಕಕಳಗಡಕ ಇದಘಲಗ ಬಸರಸ ಚಘಲನಕ ಮಘಡಕಕಹಕಡರ ಹಕಹಗಗದಲರಕದ ಬದಲರರತಕಪಗನಕ\nಎನರಟತಘಪರಕ. ನನಟ ಕಘಲಗಕ ಗಘಯವಘಗತರಪ."9.     PW.1 emphatically deposed that when he was\nstepping into the offending bus, the driver of the said bus\nnegligently moved it, without observing that he was getting\ninto the bus. As a result he fell down and the rear wheel of\nthe bus ran over his left leg on account of which he sustained\ngrievous injuries.   On the other hand, RW.1 (driver of the\noffending bus) testified to the effect that he was on duty in\nBMTC bus bearing No.KA­01­FA­0626 on 6.7.2019 at about\n5.00 p.m, which was in scheduled trip from Kengeri to\nTavarekere in Route No.226M/9 of BMTC bus service.              The\nBus started from Kengeri TTMC bus stand to complete the trip\nand when he reached near the exit entrance at TTMC bus\nstand driving @ 13 kmph speed (as per the GPS), while taking\nleft turn to Bengaluru­Mysore highway main road, at that\npoint of time the petitioner came running and attempted to get\ninto the BMTC bus from the front door and lost control,\nthereby fell down and sustained injuries.10.    First of all having regard to the age of the petitioner\nwhich was 68 years at the time of accident, the possibility ofSCCH-23                          8                MVC No.5320/2019he attempting to board a moving bus is implausible. The other\nassertion of the respondent that PW.1 tried to climb the bus\nwhen its door was closed is also highly improbable. Even a\nsuggestion to the same effect was made to PW.1 which he\ndenied vociferously as "ನಘನರ ಮರಚಚದ ಬಘಗಲನ ಬಸಟಲಲ ಹತಪಲರ ಪಪಯತಟ\nಪಟರಟ, ಕಕಳಗಕ ಬದಲದಕಲಗನಕ ಎಕದರಕ ಸರಯಲಲ". Just for the sake of arguments\nalso if it is taken that he tried to board the moving bus, the\nfollowing elicitations brought out from RW.1's mouth are\nnoteworthy:     " ಅಜದಘರರ ಓಡಬಕದರ ಬಸಟನರಟ ಹತಪಲರ ಪಪಯತಟಸದಲ ಎಕದರ\nಹಕಗಳದರಲ , ನಘನರ ಅದನರಟ ಕನಟಡಯಲಲ ನಕಹಗಡರರತಕಪಗನಕ .   ಬಘಗಲರ ಹಘಕರವವದರ ಮತರಪ\nತಕರಕಯರವವದರ ನನಟ ಅಧಗನದಲಲ ಇರರತಪದಕ. ನನಟ ಬಸಸಗಕ ನವಘಹರಕ ಇದಲನರ." When\nRW.1 himself admits to have observed in the mirror of the bus\nthat the petitioner was trying to climb the bus (which\naccording to him was moving) , then what prevented him from\nstopping the bus which as per his own testimony was moving\nslowly, i.e., at the speed of 13 kmph?         More so, when the\nopening and the closing of the door of the offending bus was in\nhis control.   Interestingly when a conductor was deputed in\nthe offending bus, the occurring of such a mishap is totally\nunwarranted. Ex.P5 wound certificate indicates that the\npetitioner sustained crush injuries. Thus in case if the bus\nwas moving at a low speed then certainly the petitioner would\nnot have sustained crush injuries.11.   The BMTC GPS report of the day of the accident\nthat is 6.7.2019, is marked at Ex.R1 and the entry highlighted\nis :SCCH-23                          9                MVC No.5320/2019Time                Location             Speed KM/H6.7.2019 17:00         Kengeri TTMC                   13But what deserves notice is that the accident had taken\nplace at 5.30 p.m, on 6.7.2019 ( as evident from Ex's.P1 to 3 &\n6 ). Hence Ex.R1 which shows the location of the offending\nbus from 5.00 p.m to 5.04 p.m, does not substantiate the\ndefence of the respondent.      The sketch exhibited at Ex.R2\nreveals that the fateful accident occurred at the exit point of\nthe Kengeri Bus stand, while the offending bus was trying to\ntake left turn towards the Bengaluru­Mysore main highway\nroad. Admittedly since there is a national highway in front of\nthe Kengeri Bus stand, the buses entering into and leaving the\nBus stand will slow down for a moment, stop, give signal and\nthen proceed towards entry or exit. This establishes the fact\nthat the petitioner was trying to climb the offending vehicle\nwhile it was almost in a stationary position.         Under such\ncircumstances, RW.1 was under an obligation to check\nwhether the petitioner completely boarded the bus and upon\nconfirmation had to move it.         The very fact that he tried to\nmove the bus at the time when one of the legs of the petitioner\nwas on the ground and another on the foot board of the Bus\ndemonstrates the negligence on the part of the respondent.12.    Ex.R3 photographs appear to be taken after the\noccurrence of the accident.    Hence they are not of much availSCCH-23                         10             MVC No.5320/2019to the respondent.     Ex.P4­ IMV report discloses that the\naccident had    not occurred due to any mechanical defects.\nEx.P6 is the charge sheet filed by the police against the driver\nof the offending vehicle i.e., RW.1 by opining that the accident\nhad taken place due to the negligence of the driver of the bus.13.   Further RW.1 who specifically deposed that he\nlodged complaint before the jurisdictional police station but\nthey refused to take his complaint and that he would\nchallenge the orders of the criminal case falsely foisted against\nhim, admitted during the course of his cross examination that\n" ನನಟ ವರರದಲ ಚಘಜರಶಗಟಸ‍     ಹಘಕದಘಲರಕ ಮತರಪ ಪಪಕರಣ ಸಹ ನಘವಯಲಯದಲಲ\nಚಘಲಪಯಲಲ ಇದಕ ಎಕದರಕ ನಜ. ನಘನರ ಚಘಜರಶಗಟಸ‍ ಮತರಪ ಎಫಸಐಆರನರಟ ಚಘಲಕಕಜಸ‍\nಮಘಡಲಲ."    This goes to show that the aforesaid defence is\nbaseless and is just taken to absolve the respondent from its\nliability of paying the compensation. Moreover it is settled law\nthat the term 'rashness and negligence' has to be construed\nlightly while deciding a petition for claim of compensation\nunder theM.V Actas compared to the word 'rashness and\nnegligence' as finds mention in theIndian Penal Code. This is\nbecause the chapter inM.V Actdealing with compensation is a\nbenevolent legislation and not a penal one. Therefore, based\non the above discussion I hold that the actionable negligence\non the part of the driver of the BMTC bus bearing No.KA­01­\nFA­0626 is proved.    Accordingly, issue No.1 is answered in\nthe affirmative.SCCH-23                                  11                  MVC No.5320/201914.     ISSUE NO.2:              PW.1       deposed        that   due      to\naccidental       injuries   he        suffered    disability     and     incurred\nconsiderable medical and incidental expenses. Therefore, prays\nto award compensation. As already discussed above, the\npetitioner has proved that the accident took place due to rash\nand negligent driving of the driver of offending vehicle and\ntherefore, the petitioner is entitled for compensation.15.     Petitioner deposed that he was aged about 68 years\nat the time of accident and was earning Rs.15,000/­ p.m, by\nworking     as    a    coolie    in    Bengaluru       Safety    Glass    works,\nBommasandra, Bengaluru.                  On the contrary the respondent\ndenied the age, avocation and income of the Petitioner.                       The\npolice and medical records reveal the age of petitioner as 72\nyears at the time of accident. The respondent, failed to adduce\nany evidence to disprove the age of the petitioner.                      However\nperusal of Ex.P.7­ Aadhaar card of the petitioner, indicates that\nhis date of birth is 4.7.1951.                Thus it can be said that the\npetitioner was aged 68 years at the time of accident.16.     Petitioner has not produced any document to\ndemonstrate his avocation.                But as far as his income is\nconcerned he has placed on record his Bank pass books which\nare exhibited at Ex's.P16 and 17.                Except this, absolutely no\nreliable evidence is placed before the Tribunal to prove                      his\navocation        and     income.         To      put    it     differently,    no\ncontemporaneous documents are produced in support ofSCCH-23                         12              MVC No.5320/2019Ex's.P16 & 17.     Therefore the said documents are in no way\nhelpful to prove his avocation and income. Under such\ncircumstances this Tribunal considers the avocation of the\npetitioner as un­skilled labour and the notional income of the\npetitioner is taken as Rs.14,000/­ p.m. ( as the accident had\ntaken place in the year 2019).       This Tribunal has taken into\nconsideration the notional income fixed by the Karnataka State\nLegal Service Authority, Bengaluru vide the letter No.KSLSA;\n15/NLA/2019 dated 13.8.2020 ( addressed by the Hon'ble\nMember Secretary Karnataka State Legal Services Authority to\nall the Chairpersons and Member Secretaries of all the DLSAs in\nthe State).    The relevant portion thereof is reproduced as\nfollows:" Regarding fixation of notional income:Uniformity has to be there for awarding compensation\ntowards ' loss of income' , ' loss of income during laid up period'\nand ' loss of future prospects' . In many a case there would be\nno proof of income and in such circumstances, the Court may\nadopt the income indicated in the following table and same is\nalso being considered for settlement of cases before the\nPrincipal Bench and the Benches at Kalburgi & Dharwad. The\nzonal districts coming under the respective benches of the\nHon'ble High Court of Karnataka may adopt the table applicable\nto them.(Applicable to all districts coming under the Hon'ble\nHigh Court of Karnataka, Principal Bench, Bengaluru)SCCH-23                    13               MVC No.5320/2019Year        Income per month\n           2008             4,500/­\n           2009             5,000/­\n           2010             5,500/­\n           2011             6,500/­\n           2012             7,000/­\n           2013             8,000/­\n           2014             8,500/­\n           2015             9,000/­\n           2016             9,500/­\n           2017            11,000/­\n           2018            12,500/­\n           2019            14,000/­\n\n\n    (Applicable to all districts coming under the Hon'ble\nHigh Court of Karnataka, Dharwad & Kalburgi Benches,\nBengaluru)\n\n           Year        Income per month\n          2000­01           3,000/­\n          2002­03           3,250/­\n          2004­05           3,500/­\n           2006             3,750/­\n           2007             4,000/­\n           2008             4,250/­\n           2009             5,000/­\n           2010             5,500/­\n           2011             6,000/­\n           2012             6,500/­\n           2013             7,000/­\n          2014­15      7,500/­ to 8,000/­SCCH-23                         14              MVC No.5320/20192016               8,750/­\n              2017              10,250/­\n              2018              11,750/­\n              2019              13,250/­17.   A person is not only to be compensated for the\nphysical injury, but also for the loss which he suffered as a\nresult of such injury. This means that he is to be compensated\nfor his inability to lead a full life, his inability to enjoy those\nnormal amenities which he would have enjoyed but for the\ninjuries, and his inability to earn as much as he used to earn or\ncould have earned. In this back drop, this Tribunal proceeds to\ndetermine 'just and reasonable' compensation under the\nfollowing heads:Pain and Sufferings:Ex.P5­ wound certificate; Ex.P9­Progress sheet & Ex.P10­\nDischarge summary (both issued by Sanjay Gandhi Institute of\nTrauma & Orthopedics) show that due to accident PW.1\nsustained Crush injury of left foot multiple lacerated wound\nover the left foot extending up to medial aspect of the left lower\n1/3rd leg exposing the bones and tendons.As per medical records above said injuries are grievous in\nnature. Ex.P10­Discharge summary goes to show that Pw.1 was\ninitially admitted to Sanjay Gandhi Hospital, Bengaluru and he\ntook      treatment there as an inpatient from 7.7.2019 to\n19.7.2019 (13 days). Thereafter due to non availability of multi­\nspeciality at the said hospital, he was referred to higher centerSCCH-23                           15              MVC No.5320/2019(Ex.P9).    Ex.P11 discloses that PW.1 was admitted as an\ninpatient at Victoria hospital from 21.7.2019 to 30.8.2019 (41\ndays). All these facts make it evident that PW.1 sustained above\ninjuries in the accident.It is not in dispute that the petitioner had remained in the\nhospital for a period of almost 2 months. It is not possible for\nthe Tribunals to make a precise assessment of the pain and\ntrauma suffered by a person whose limb is amputated as a\nresult of accident.    Even if the victim of the accident gets\nartificial limb, he will suffer from different kinds of handicaps\nand social stigma throughout his life. Therefore this Tribunal\nfeels that the ends of the justice will be met by awarding the\npetitioner a sum of Rs.1,00,000/­ in lieu of Pain, suffering &\nTrauma caused due to the amputation of his left leg.18.   Attendant        charges,   Extra   nutritious   food     &\nconveyance charges:The case of an injured and disabled person, is however,\nmore pitiable and the feeling of hurt, helplessness, despair &\noften destitution enures everyday.      The support that is needed\nby a severely handicapped person comes at an enormous price,\nphysical, financial and emotional, not only on the victim but\neven more so on his family & attendants and the stress saps\ntheir energy and destroys their equanimity.         Ex's.P10 & 11\nreveal that the petitioner took treatment as an inpatient for 54SCCH-23                             16                MVC No.5320/2019days.     Undoubtedly, during the said period he would have\nincurred expenses towards attendant charges, as some family\nmember/s of the petitioner living his/her duties would have\naccompanied the petitioner to the hospital in order to take his\ncare. During the aforesaid period the petitioner might have also\nspent a considerable amount towards special diet, transport\nand nutrition. Accordingly considering the rate of inflation &\nrise in price index the same is quantified at Rs.1,800/­ per day.\nHence Rs.97,200/­ (1800 X 54) which is rounded off to\nRs.97,000/­ is awarded under this head.19.    Medical expenses:         Medical bills & prescriptions\nproduced at Ex's.P12 & 13 depict that PW.1 spent Rs.93,251/­\ntowards       medical   expenses.    Except     making      the   following\nsuggestion to PW.1 " ನ.ಪ.12 ಬಲರಲಗಳನರಟ ಸಸಷಟ ಮಘಡ ಈ ಕಕಗಸಗಕಹಸಸರ ಹಘಜರರ\nಪಡಸದಕಲಗನಕ ಎಕದರಕ ಸರಯಲಲ" , nothing worthwhile was elicited during\nthe cross examination of PW.1 so as to doubt the genuineness\nof the medical bills.    However when this Court verified the said\nbills the amount mentioned at bill No.5 is Rs.4,202/­ whereas\nat the time of calculation petitioner has taken it as 5,002/­ i.e.,\nRs.800/­ excess calculation has been done by the petitioner.\nThus the petitioner is entitled for Rs.92,451/­ (Rs.93,251­ 800)\nwhich is rounded off to Rs.92,000/­ towards medical expenses.20.    Loss of future income due to disability:PW.2­    Dr.Nagaraj    B.N       testified   that    on    clinical\nexamination of PW.1 he found that the petitioner sustainedSCCH-23                          17             MVC No.5320/2019Crush injury left foot multiple lacerated wound over the left foot\nextending up to medial aspect of the left lower 1/3rd leg\nexposing the bones and tendons.As per the Discharge summary the petitioner was treated\nat Sanjay Gandhi hospital with wound debridement and ORIF\nwith percutaneous K wire fixation on 7.7.2019, post operatively\nhe developed renal and hepatic impairment. Hence he was\nreferred to Victoria hospital, wherein he was treated for his\nmedical complications and he developed gangrene of the left\nlower limb hence, he underwent left lower limb above knee\namputation. Further, Petitioner complains that he is unable to\nwalk and needs external support and cannot carry his work as\ncheque collector. That on examination he found that the\npetitioner has above knee amputation of the left lower limb,\nstump measuring 9 inches. The recent X­ray of the left thigh\nshows absence of distal femur and leg bones. Further the\npetitioner was clinically and radiologically examined and the\nassessment of disability was done as per the Central govt.\nnotification dated 5.1.2018. The latest X­ray and clinical report\nof the petitioner, produced by the doctor were marked at Ex.P18\n& 19.PW.2 outrightly denied the suggestion that the limb of the\npetitioner was amputated due to gangrene and not on account\nof the injuries sustained in the accident.        However, it is\npertinent to note that during the course of his treatment atSCCH-23                          18              MVC No.5320/2019Victoria hospital, the petitioner developed Gangrene and hence\nhe   underwent    left   lower   limb   above   knee   amputation.\nTherefore the suggestion made by the learned counsel for the\nrespondent is not tenable. The disability of the petitioner as\nshown by the doctor is: Permanent physical disability­ 80% to\nthe left lower limb; Whole body physical disability­ 32% &\nFunctional disability as cheque collector - 100%.21.   All injuries and assessment of disability do not\nimpact the earning capacity, nor in a similar way. The disability\nhas to be seen in the context of the particular occupation or\ncalling that the victim is engaged in. The co­relation between\nthe physical disability suffered in an accident and the loss of\nearning capacity resulting from it was considered in great detail\nby the Hon'ble Apex Court in Rajkumar V/s Ajaykumar and\nanother (2011) 1 SCC 343. In the said case, the Apex Court\nheld that it is the functional disability which would be the\noperative criteria for assessing the loss of future earnings and\nnot the physical disability. There is a detailed discussion of the\nassessment of future loss of earning due to permanent\ndisability. After explaining the meaning of permanent disability\nand contrasting it with temporary disability and also the\nmanner in which permanent disability of different limbs\nexpressed by Doctors in the disability certificates is to be\ninterpreted, the Apex Court clarified that the assessment of\ncompensation under head of loss of future earnings wouldSCCH-23                           19             MVC No.5320/2019depend upon the effect and impact of such permanent disability\non his earning capacity. The relevant paragraphs of the afore\ncited decision are culled out as follows:" Ascertainment of the effect of the\n      permanent disability on the actual\n      earning capacity involves 3 steps. The\n      Tribunal has to first ascertain what\n      activities the claimant could carry on in\n      spite of the permanent disability and\n      what he could not do as a result of the\n      permanent disability ( this is also\n      relevant for awarding compensation\n      under the head of loss of amenities of\n      life). The second step is to ascertain his\n      avocation, profession and nature of work\n      before the accident, as also his age. The\n      third step is to find out whether (i) the\n      claimant is totally disabled from earning\n      any kind of livelihood or (ii) whether in\n      spite of the permanent disability, the\n      claimant could still effectively carry on\n      the activities and function, which he was\n      earlier carrying on or (iii) whether he was\n      prevented or restricted from discharging\n      his previous activities and functions, but\n      could carry on some other or lesser scale\n      of activities and functions. So that he\n      continues to earn or can continue to earn\n      his livelihood.xx          xx             xx\n           We     may    now   summarize           the\n      principles discussed above:SCCH-23                     20            MVC No.5320/2019(I)   All    injuries  (or   permanentdisabilities arriving from injuries) , do not\n    result in loss of earning capacity.(ii) The percentage of permanent\n    disability with reference to the whole body\n    of a person, cannot be assumed to be the\n    percentage of loss of earning capacity. To\n    put it differently the percentage of loss of\n    earning capacity is not the same as the\n    percentage of permanent disability (except\n    in few cases, where the Tribunal on the\n    basis of evidence concludes that the\n    percentage of loss of earning capacity is\n    the same as the percentage of permanent\n    disability)(iii) The doctor who treated an injured\n    claimant      or    who    examined      him\n    subsequently to assess the extent of his\n    permanent disability can given evidence\n    only in regard to the extent of permanent\n    disability. The loss of earning capacity is\n    some thing that will have to be assessed by\n    the Tribunal with reference to the evidence\n    in entirety.(iv) The same permanent disability\n    may result in different percentages of loss\n    of earning capacity in different persons,\n    depending upon the nature of profession,\n    occupation or job, age, education and other\n    factors."SCCH-23                          21             MVC No.5320/201922.     In the instant case petitioner has not convincingly\nestablished as to what avocation he was carrying on earlier to\nthe accident. If the say of the petitioner that he was working as\na coolie at some Glass Works i.e., office boy - doing the work of\ncollecting cheques & going to the Bank, is believed, then prior to\nthe accident he was engaged in active physical work. To a\ncoolie, loss of leg/s vitally affects not only his working capacity\nbut also his livelihood. That is to say the earning capacity of\nthe petitioner as on the date of the accident stands completely\nnegated and not reduced. He has been rendered permanently\nincapable of working as a coolie or to do any manual work. In\nmidst of the ongoing Covid situation, even physically fit persons\nare not able to get suitable jobs. Then the pitiable condition of\nthe petitioner would not fetch him any employment, muchless a\nsuitable employment. Therefore compensation for loss of future\nearning has to be just & proper so as to enable him to live a life\nof dignity.23.     The Learned counsel appearing for the Petitioner\nvehemently contended that the Functional disability of the\npetitioner is 100%, which is corroborated by the evidence of the\nDoctor . He also placed his reliance upon a recent decision\nreported in 2020 ACJ 1592 between Anthony V/s Managing\nDirector, KSRTC. But the point that merits consideration is\nthat as per the ratio laid down by the Hon'ble Supreme Court\nin Rajkumar V/s Ajaykumar, the doctor who treated anSCCH-23                         22             MVC No.5320/2019injured claimant or who has subsequently assessed his extent\nof Permanent disability can give evidence only in regard to the\nextent of Permanent disability. The loss of earning capacity is\nsomething that will have to be assessed by the Tribunal with\nreference to the evidence in entirety. Thus in compliance of the\nratio of the Hon'ble Apex Court as stated supra, on appreciating\nthe evidence on record, the loss of earning capacity of the\npetitioner according to this Tribunal may be as high as 100%,\nbut in no case it would be less than 40%.        Accordingly the\ncompensation for the loss of the petitioner's future earning\nmust be computed on that basis. As far as the decision relied\nupon by the learned counsel for the petitioner is concerned, the\nApex Court in the said decision observed that the injured aged\n45, employed as a Painter has been rendered incapable to work\nas a Painter or to do any manual work and thereby assessed the\nFunctional disability at 75%. However it is relevant to note that\nthe age of the claimant in the above cited decision was 45 years.\nBut having regard to the age of the petitioner in the instant case\nwhich was 68 years as on the date of accident, this Tribunal\ndeems it just to consider the functional disability of the\npetitioner at 40%. Though it is true that if the steps mentioned\nin the decision of Rajkumar V/s Ajaykumar in ascertaining the\neffect of Permanent disability on the actual earning capacity are\nfollowed, then the answer would be that the petitioner cannot\nindependently carry out any activity on his own. For everything\nhe would require an attendant's help. It is also true that he isSCCH-23                         23               MVC No.5320/2019totally disabled from earning any kind of livelihood.      However\nhaving regard to his avocation (Coolie) and age (68 years), his\nloss of earning capacity is computed at 40% by this Tribunal.\nThe appropriate multiplier applicable as per Sarla verma's case\nis "5". Thus Future loss of income is awarded at Rs.3,36,000/­\n(14,000 X 12 X 5 X 40/100) .24.   Future medical expenses:The learned counsel for the Petitioner submitted that the\npetitioner is still taking follow­up treatment once in a week at\nVictoria hospital. Further the petitioner who had suffered left\nleg amputation due to the injuries suffered by him in the\naccident would require assistance of artificial limb for the rest of\nhis life. PW.2 was examined in this regard and the estimation\nquoted by him as per Ex.P.20 is Rs.2,15,000/­.          During the\ncross examination it was suggested to him that he has shown\nthe estimation of Prosthesis at Rs.2,15,000/­ at a higher end to\nhelp the petitioner and that in some companies and hospitals\nthe price of Prosthesis is less.     But interestingly nothing was\nput the said witness as to in what manner the amount\nmentioned in the quotation was exaggerated.            Moreover a\nwrongdoer including his indemnifier cannot dictate terms to the\nvictim as to where he should go in for any future treatment.\nTherefore considering the expenses of the follow­up treatment\nand the estimation of Prosthesis a sum of Rs.2,50,000/­ is\nawarded under this head, which shall not carry any interest.SCCH-23                          24              MVC No.5320/201925.    Loss of income during laid­up period:This Tribunal has already considered the notional income\nof the petitioner as Rs.14,000/­ p.m.             Admittedly PW.1\nsustained amputation of left leg above knee level. The petitioner\ntook treatment as inpatient for 54 days and is still visiting the\nVictoria hospital for follow­up treatment. Considering the\nnature of injuries sustained and the line of treatment it can be\nsaid that the petitioner requires at least 6 months to recover\nfrom the said injuries. Therefore, the total period for treatment\nis considered to be as six months. Hence this Tribunal awards\nRs.84,000/­ (Rs,14,000 X6) under this head.26.    Loss of future happiness and amenities:PW.1 was aged 68 years at the time of accident. His left leg\nis amputed above knee. He suffered 32% permanent physical\ndisability to the whole body. He has to live for the rest of the life\nwith one artificial leg. He will not be able to live in the same\nmanner as he used to do earlier to the accident. That is to say\nhe will face difficulties in performing his day today activities and\nwill also not be able to enjoy his rest of the life. Further he will\nneed assistance to move around and will most likely need a\ncrutch to walk. Therefore it would be just and reasonable to\naward a sum of Rs.50,000/­ under the head.27.    Future Prospects:As the petitioner was aged 68\nyears at the time of accident, he cannot be granted future\nprospects.SCCH-23                          25              MVC No.5320/2019The calculation table stands as follows;1       Pain and sufferings                   :   Rs.     1,00,000=00\n2       Attendant                             :   Rs.       97,000=00\n        charges,Nutritious food\n        & conveyance charges\n3       Medical expenses                      :   Rs.       92,000=00\n\n4       Loss of future income                 :   Rs.     3,36,000=00\n        due to disability\n5       Future           medical              :   Rs.     2,50,000=00\n        expenses\n6       Loss of income during                 :   Rs.       84,000=00\n        laid­up period\n7       Loss      of      future              :   Rs.       50,000=00\n        happiness            and\n        amenities\n                                      Total       Rs.   10,09,000 =00\nDeduction of the interim                          Rs.       10,000=00\ncompensation paid to the\npetitioner on 12.7.2019\n                                      Total       Rs.     9,99,000 =0028.   It is well settled that while awarding interest on the\n    compensation amount, the Court has to take into account the\n    rate of interest specified by the Nationalized Banks.         In the\n    decisions reported in 2013 AIR SCW 5375 & 2014 ACJ 1565,\n    the Hon'ble Apex Court held that the Insurance company is\n    liable to pay interest @ 9% p.a. In view of the above discussion,\n    I am of the opinion that the Petitioner is entitled for\n    compensation of Rs.9,99,000/­ along with interest at the rate\n    of 9% p.a., from the date of filing of petition till realization. TheSCCH-23                              26                MVC No.5320/2019Respondent being the insurer is liable and directed to pay the\ncompensation amount. Hence, I answer Issue No.2 as Partly\nin the Affirmative.29.     ISSUE NO.3: In view of the discussion made supra\nin issues No.1 and 2, this Tribunal proceeds to pass the\nfollowing;ORDER\n             The petition filed by the petitioner U/Sec. 166\n     ofM.V Actis hereby partly allowed with costs.The petitioner is entitled to get compensation\n     of Rs.9,99,000/­ (Rupees Nine lakhs ninety nine\n     thousand only) with interest at the rate of 9% p.a.\n     (excluding future medical expenses) from the date of\n     petition till its deposit.The respondent is liable to pay and directed to\n     deposit the compensation amount within a period of\n     two months from the date of award.Out    of   the      said    compensation      amount\n     awarded, 25% of the compensation amount with\n     proportionate interest shall be deposited in the name\n     of petitioner in any Nationalized Bank/Scheduled\n     Bank     for   a    period    of     3   years   (without   any\n     encumbrance or premature withdrawal) with liberty\n     to draw the accrued interest periodically and theSCCH-23                                     27                    MVC No.5320/2019remaining 75% amount with proportionate interest\n        shall be released to the petitioner on proper\n        identification and verification.Advocate fee is fixed at Rs.1,000/­.Draw award accordingly.(Dictated to the Stenographer directly on computer and printout taken by her, then corrected\nand pronounced by me in the open court on this the 28 th day of September, 2020)\n\n\n\n\n                                             (Ashwini M.Hattiholi)\n                                         XXI Addl. Small Causes Judge\n                                              & ACMM, Bengaluru.ANNEXURES\nList of witnesses examined for the petitioners:P.W.1           :       Venkatachalapathi\nP.W.2           :       Dr.Nagaraj.B.NList of documents got marked for the petitioners:Ex.P.1         :        Copy of FIR\nEx.P.2         :        Copy of Complaint\nEx P.3         :        Copy of Panchanama\nEx.P.4         :        Copy of MV report\nEx.P.5         :        Copy of wound certificate\nEx.P.6         :        Copy of charge sheet\nEx.P.7         :        Notarized copy of Aadhaar card\nEx.P.8         :        Notarized copy of Disability certificate\nEx.P.9         :        Progress sheet\nEx.P.10&      11:       Discharge summaries\nEx.P.12        :        medical bills of Rs.93,251/­\nEx.P.13        :        Prescriptions\nEx.P.14        :        PhotosSCCH-23                       28           MVC No.5320/2019Ex.P.15   :    CD\nEx.P.16&17:    Pass book\nEx.P.18   :    Recent examination report\nEx.P.19   :    X­ray\nEx.P.20   :    EstimationList of witnesses examined for the respondents :Rw.1: Prakash.J.N\n\nList of documents marked for the respondents:Ex.R1:     Copy of vehicle vacation report\nEx.R2:    Copy of sketch made by the respondent\nEx.R3:    Photos\nEx.R4:    CD\nEx.R5:    Copy of DL\nEx.R6:    Copy of ID card\n\n\n                              (Ashwini M.Hattiholi)\n                            XXI Addl. Small Causes Judge\n                                & ACMM, Bengaluru.