Bangalore District Court
Sri.Raju vs Sri.Arunachala Dixit G on 14 February, 2020
IN THE COURT OF THE XXI & XI ADDL. SMALL CAUSES
AND ADDL. MACT., BANGALORE, (SCCH-23)
Dated this the 14th day of FEBRUARY 2020
Present: Shri. MOHAMED ARIFULLA C.F.
B.Sc., LL.B.,
C/C XXI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Bengaluru.
MVC. No.441/2017
Petitioner : Sri.Raju,
Aged 46 years,
S/o Sri.G.K.Chikkamuddegowda,
R/at No.12, Hale gabbadi,
Kallahalli post, Kanakapura Taluk,
Ramanagara District562117.
(By Sri.S.M.L., Advocate )
v/s
Respondents : 1.Sri.Arunachala Dixit G,
S/o.Sri.Gundappa Dixit,
No.1144, Shanthi Nivas,
1st floor, 22nd cross, BSK II Stage,
Bengaluru560070.
Owner of car Reg.No.KA05MH
4302.
2. The Manager,
M/s.ICICI Lombard General
Insurance Company Limited,
No.121, The Estate building,
9th floor, Dickenson road,
Bengaluru560001.
(Insurer of car Reg.No.KA05MH
SCCH-23 2 MVC 441/2017
4302), valid from 6.5.2016 to
5.4.2017
(R.1 by Sri.R.K., advocate,
R2 by Sri.R.B., advocate)
JUDGMENT
This is a claim petition filed by the petitioner claiming compensation of Rs.10,00,000/ on account of accident met by petitioner on 24.9.2016.
2. The brief facts of the case of the petitioner is that, on 24.9.2016 at about 7.45 p.m., when he was proceeding in his Activa Honda bearing No.KA05JJ4101 near Gabbadi lake, Harohalli hobli, Kanakapura taluk, Ramanagara district, at that time, the driver of a car bearing No.KA05MH4302 drove the same in rash and negligent manner, came with high speed from opposite direction and dashed against petitioner's motorcycle. As a result of it, petitioner fell down and sustained grievous injuries all over the body. Immediately he was shifted to Victoria hospital , wherein first aid was given and he took treatment as inpatient and spent more than Rs.50,000/ towards medical treatment.
3. The petitioner was hale and healthy and working as a Agricultural Coolie and earning Rs.15,000/ per month prior to the accident. Due to the injuries sustained by him, he is unable to attend to his work and suffering every day which SCCH-23 3 MVC 441/2017 resulted in loss of earning and put to great financial hardship. Therefore the respondent No.1 and 2 are liable to pay the compensation and hence prays to grant compensation of Rs.10,00,000/ with interest.
4. After service of notices, the respondent no.1 appeared before this court through his Counsel, but he has not filed written statement.
The respondent No.2, being the insurer of the vehicle filed objection to the petition and denied the averments of the petition and contended that the petition filed by the Petitioner is vexatious and frivolous so also it is contrary to law and facts of the case. Further contended that issuance of policy in respect of alleged car bearing No.KA05MH4302 is not admitted and denied the involvement of vehicle in the accident. The driver of the offending vehicle has no valid and effective driving license at the time of accident and the owner of the vehicle knowingly entrusted the vehicle to a person who did not possess driving license to drive the vehicle. Further stated that there is delay of 55 days in lodging the complaint and the vehicle is falsely implicated in order to get the compensation. There is noncompliance of mandatory provisions u/S 134(c) and 158(6) of M.V Act. It denied the age, avocation, injuries and income of petitioner. Compensation claimed is exorbitant. Among these grounds and reserving the right to defend the claim on all grounds u/S 170 of M.V Act, it prays to dismiss the petition.
SCCH-23 4 MVC 441/20175. On the basis of the above pleadings, my predecessorsinoffice have framed the following;
ISSUES
1. Whether the petitioner proves that, on 24.9.2016 at about 7.45 p.m, on KanakapuraBengaluru road, on Hosa Gabbadi Lake shore, he has sustained grievous injuries in the RTA caused by the driver of the car bearing No.KA05MH 4302 on his rash and negligent driving ?
2. Whether the petitioner is entitled for compensation ? If so, to what amount and from whom ?
3. What Order or award?
6. In order to prove the above issues the petitioner got himself examined as P.W.1 and also got marked documents at Ex.P1 to 12. An eyewitness examined as Pw.2 and Dr.S.Ramachandra examined as Pw.3 and got marked Ex.P13 to 15 documents and closed their side.
7. On the other hand, the respondent No.2 examined MRO of Victoria hospital as Rw.1 and documents Ex.R1 to 3 got marked and legal manager of insurance company examined as Rw.2 and the matter is posted for arguments.
8. Heard arguments of both side and perused the entire materials placed on record and my answers to the above issues are as follows: SCCH-23 5 MVC 441/2017 Issue No.1 : In the Affirmative Issue No.2 : In Partly Affirmative Issue No.3 : As per final order for the following REASONS
9. ISSUE No.1 : According to the petitioner, on 24.9.2016 at about 7.45 p.m., when he was proceeding in his Activa Honda bearing No.KA05JJ4101 near Gabbadi lake, Harohalli hobli, Kanakapura taluk, Ramanagara district, at that time, the driver of a car bearing No.KA05MH4302 drove the same in rash and negligent manner, came with high speed from opposite direction and dashed against petitioner's motorcycle. As a result of it, petitioner fell down and sustained grievous injuries all over the body. Immediately he was shifted to Victoria hospital , wherein first aid was given and he took treatment as inpatient and spent more than Rs.50,000/ towards medical treatment.
10. In order to prove the above facts in issue, the petitioner got examined himself as P.W.1 and he filed chief examination affidavit by reiterating the averments made in the petition and in support of his oral evidence, he got marked police and medical documentary evidence at Ex.P.1 to P.12 i.e., Ex.P.1Copy of FIR, Ex.P.2 copy of Complaint, Ex.P.3 - statement recorded by police, Ex.P.4charge sheet, Ex.P5 spot SCCH-23 6 MVC 441/2017 mahazar, Ex.P6copy of order sheet of criminal case, Ex.P7 wound certificate, Ex.P8 & 9 discharge summaries, Ex.P10 copy of Adhaar card, Ex.P11medical bills, Ex.P12 prescriptions, Ex.P13OPD book, Ex.P14case sheets and Ex.P15One Xray.
11. On the other hand, respondent no.2 has stated that, the accident did not take place due to the rash and negligent driving of the driver of the offending vehicle. Further the official of the respondent No.2 has got examined himself as Rw.2 and stated that there is a delay of 55 days in lodging complaint and also stated that the offending vehicle was not involved in the accident. The respondent No.2 has also got examined Medical record Officer of the Victoria hospital, Bengaluru as Rw.1 and he has produced MLC extract and police intimation extract as per Ex.R2 and 3. On perusal of Ex.R2 and 3, it shows that the petitioner got admitted to the hospital on the same day and the casualty medical officer recorded the history "RTA, bike V/s Car at 7.45 p.m on 24.9.2016 at Gabbadi". This fact clearly discloses that the injured admitted to the hospital as on the date of the accident immediately and it took treatment in the Victoria hospital, Bengaluru. The Ex.P14 inpatient record of the petitioner discloses that he underwent surgery for femur fracture and he was admitted in the hospital till 14.10.2016. The petitioner has clearly stated that no body was there to take care of him in the hospital and therefore, it was not possible for him to SCCH-23 7 MVC 441/2017 lodge a complaint on the date of the accident. The nature of the injury sustained by the petitioner shows that he was under treatment and also under rest and therefore it was not possible for him to lodge a complaint on the same day. Moreover, delay only cannot be considered as ground to decide the claim petition and the Tribunal has to go through other relevant materials available on record. Though there was a delay in lodging the complaint but the MLC extract and other medical records produced by the petitioner clearly discloses that the petitioner was under treatment for a period of more than 1 ½ month and therefore, it appears that it was not possible to lodge complaint as on the date of the accident and also there was a delay of 55 days in lodging complaint.
12. The learned counsel for the respondent No.2 has suggested to the petitioner that, the vehicle bearing No.KA05MH4302 was not involved in the accident , but the petitioner has denied the same and stated that the accident took place due to t he negligence of the driver of the said car. The respondent No.2 has further stated that the accident took place due to the negligence of the petitioner and not due to the negligence of the driver of the offending car. However the petitioner has produced Ex.P1 FIR, Ex.P2 complaint, Ex.P3 copy of statement recorded by police, Ex.P4charge sheet, Ex.P5Spot mahazar, Ex.P6 copy of order sheet of Criminal case, Ex.P7 wound certificate, Ex.P8 & 9discharge summaries which SCCH-23 8 MVC 441/2017 disclose that the accident took place due to the negligence of the driver of the offending vehicle. Though the learned counsel for the respondent No.2 has cross examined the Pw.1 but he has not at all elicited anything from his mouth in the cross examination. More over the respondents have not at all produced any material before this court to say that the accident took place due to the fault of the petitioner and also the learned counsel for the respondents have not at all elicited anything from the mouth of the petitioner to say that the accident took place due to negligent manner of the petitioner.
The learned counsel for the petitioner has canvassed judgment of Hon'ble Supreme Court reported in 2019 ACJ 454 SC b/w Vimala Devi & Ors V/s National Insurance co. ltd & others, wherein it is held that:
"Sec.166 Claim application Maintainability ofinvolvement of vehicle Accident between a bus and truck resulting in death of a passenger traveling in busTribunal dismissed the claim application on the ground that claimants failed to prove the accident and involvement of truckHigh Court upheld Tribunal's finding Apex court observed that claimants had filed material documents to prove the factum of accident and the persons involved therein; documents established the identity of truck involved in the accident and also identity of driver, owner and insurance company of the truck; driver and owner of truck remained exparte and an adverse inference against both could be drawn;
insurance company did not examine any witness to rebut the claimants' evidence;
SCCH-23 9 MVC 441/2017claimants examined three witnesses and thereby discharged their initial burden to prove their case; if court did not exhibit the documents despite claimants referring them at the time of recording evidence then it was a procedural lapse which could not be made a basis to reject the claim applicationApex court held that claimants were able to prove the factum of accident so also the factum of rash and negligent act of truck driver in causing the accident and claim application is maintainable.
In the present case on hand also the respondents have not got examined driver of the vehicle. However, the petitioner has got examined Pw.2, who is the eye witness to the incident and he has also stated that the accident took place due to the negligence of the driver of the offending car. The learned counsel for the respondent No.2 has not at all elicited anything from his mouth in the cross examination. The case papers on record and the oral evidence of Pw.1 and 2 shows that the accident took place as narrated by the petitioner. The Pw.2 is an eye witness and he has also clearly stated about the accident as stated by the petitioner and nothing has been elicited by the learned counsel for the respondents from his mouth to say that the accident did not take place due to the negligence of the driver of the offending vehicle. After considering all the facts and circumstances of the case, I came to the conclusion that, the petitioner has sustained injuries in the accident due to the rash and negligent driving by the SCCH-23 10 MVC 441/2017 driver of offending car bearing Reg.No.KA05MH4302. Accordingly, I answer issue No.1 in the Affirmative.
13. ISSUE NO.2: As already discussed above, the petitioner has proved that the accident took place due to rash and negligent driving of the driver of offending vehicle and therefore, the petitioner is entitled for compensation. The Petitioner had sustained following injuries i.e., Deformity right thigh with fracture right leg. i) closed fracture shaft of right femur ii) Complex injury right knee.
As per medical records above injuries are grievous in nature. Discharge summaries of Victoria hospital at Ex.P8 & 9 reveals that Petitioner sustained Right femur shaft fracture and complex knee injury. He underwent treatment of Closed Reduction Internal Fixation with ILN for fracture shaft of right femur + ORIF and Fixation of PCL Avulsion fracture done on 4.10.2016. He took treatment as inpatient from 25.9.2016 to 14.10.2016 and also from 23.7.2018 to 27.7.2018.
14. As far as the age of the petitioner is concerned, the petitioner has stated that he was 46 years at the time of accident. To substantiate his contention, Petitioner has produced Ex.P11 Aadhar card, wherein his year of birth indicated as 1971, which shows he was aged 46 years. However, the medical records produced by the petitioner which are Ex.P8 & 9 discharge summaries and Ex.P14 inpatient record, SCCH-23 11 MVC 441/2017 discloses that the age of the petitioner was 55 years at the time of accident. Therefore, his age is considered as "55" years.
15. The petitioner has stated that he was working as Agricultual coolie and vegetable vendor and earning Rs.15,000/ per month. Except this, the Petitioner has not produced any relevant documents to show that he was having such an income. As such this Tribunal considers the avocation of the Petitioner as unskilled labour. On considering the age and avocation of the petitioner on the date of accident, this Tribunal considers the income of the petitioner as Rs.8,000/ per month.
16. The Pw.3 Dr.S.Ramachandra examined the petitioner and stated that, petitioner had sustained Right femur shaft fracture and complex knee injury. He underwent treatment of Closed Reduction Internal Fixation with ILN for fracture shaft of right femur + ORIF and Fixation of PCL Avulsion fracture done on 4.10.2016 and further stated that petitioner complains difficulty to standing on both legs, difficulty to walking on plain surface and on slope, climbing stairs, siting cross leg and squat. The P.W.3 has opined that the petitioner has physical disability of right lower limb at 39.59% and whole body is 19.79% . However P.W.3 has not stated the functional disability to the petitioner. As this Tribunal has considered the petitioner as skilled labour therefore, the petitioner cannot do his daily routine works due to the SCCH-23 12 MVC 441/2017 deformities as stated above. On considering the wound certificate and medical documents and the avocation of the petitioner and on considering the age of the petitioner and relying on the principles of the ruling reported in 2011 ACJ 1 SC (Rajkumar /Vs/ Ajaykumar) and the judgments canvassed by the learned counsel for the petitioners reported in 2014 ACJ 2550 SC (Kiran V/s Sajjan Singh & Ors), 2014 ACJ 627 SC (Syed Sadiq & ors V/s Divisional Manager, United India Insurance Co.Ltd) & 2018 ACJ 2742 SC (Anil Kumar V/s Branch Manager, National Ins.Co.Ltd & another) the Tribunal considers the permanent functional disability of the petitioner is at 20%. The tribunal considers the age of the petitioner as 55 years on the basis of medical documents produced by the petitioner and the appropriate multiplier '11' is applicable as per Sarla Verma's case. On considering the avocation and age of the petitioner, the total loss of future income is calculated as (8,000X12X11X20/100) =Rs.2,11,200/.
17. The petitioner has sustained closed fracture shaft of right femur and complex injury right knee. As such, he has suffered lot of inconvenience and therefore, considering all these aspects as well as avocation of the petitioner. Hence, this Tribunal awards Rs.50,000/ under the head of pain and sufferings.
SCCH-23 13 MVC 441/201718. The petitioner took treatment as inpatient for 24 days and took followup treatment. Considering the nature of injuries sustained and the line of treatment it can be said that the petitioner requires at least three months recovering from the said injuries. Therefore, the total period for treatment is considered to be as three months. This Tribunal awards Rs.24,000/ under the head of Loss of income during the period of treatment.
19. The petitioner has produced 55 medical bills as per Ex.P11, out of which the Bill No.1 is not belonging to the treatment of the petitioner and the remaining 54 bills are belonging to the treatment for a total amount of Rs.33,902/ . Hence, this Tribunal awards Rs.35,000/ towards medical , conveyance, nutrition and attendant charges.
20. This tribunal awards Rs.25,000/ under the head of Loss of future happiness and amenities.
The calculation table stands as follows;
01 Loss of future income : Rs. 2,11,200=00 02 Pain and sufferings : Rs. 50,000=00 03 Loss of income during : Rs. 24,000=00 treatment.
04 Medical, conveyance, : Rs. 35,000=00
Nutrition and
Attendant charges
05 Loss of future : Rs. 25,000=00
happiness and
SCCH-23 14 MVC 441/2017
amenities
Total Rs.3,45,200=00
21. In view of the above discussion,I am of the opinion that the Petitioner is entitled for compensation of Rs.3,45,200 / along with interest at the rate of 6% p.a., from the date of filing of petition till realization. The liability of Respondents No.1 and 2 is joint and several in nature. Respondent No.2 being the insurer is directed to pay the compensation amount. Hence, I answer Issue No.2 in Partly Affirmative.
22. ISSUE NO.3: In view of the above discussion on Issue no.1 and 2, I proceed to pass the following;
ORDER The petition filed by the petitioner U/Sec. 166 of M.V Act is hereby partly allowed with cost .
The petitioner is entitled to get compensation of Rs.3,45,200/ (Rupees Three lakh forty five thousand two hundred only) with interest at the rate of 6% p.a. from the date of petition till its deposit. The liability of respondents No.1 and 2 is joint and several in nature.
SCCH-23 15 MVC 441/2017Respondent No.2 is directed to deposit the compensation amount within a period of two months from the date of award.
Out of the award amount, 50% shall be deposited in the name of petitioner in any Nationalized Bank/Scheduled Bank for a period of 3 years and remaining 50% shall be paid to the petitioner.
Advocate fee is fixed at Rs.1,000/.
Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 14 th day of February, 2020) (Mohamed Arifulla C.F) C/c XXI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioners:
P.W.1 : Raju P.W.2 : Shivaranjan.R P.W.3 : Dr.S.Ramachandra
List of documents got marked for the petitioners:
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of Complaint
Ex P.3 : Copy of statement recorded by police
SCCH-23 16 MVC 441/2017
Ex.P.4 : copy of charge sheet
Ex.P.5 : spot mahazar
Ex.P.6 : Copy of the order sheet of criminal case
Ex.P.7 : wound certificate
Ex.P.8 & 9 : two Discharge summaries
Ex.P.10 : Notarized copy of Adhaar card
Ex.P.11 : Total 55 medical bills of Rs.35,352/
Ex.P.12 : Total 7 prescriptions
Ex.P.13 : OPD Book
Ex.P.14 : Total 2 case sheets
Ex.P.15 : One Xray
List of witnesses examined for the respondents :
RW.1: S.Lakshmi Devi RW.2: T.B.Devaraju
List of documents marked for the respondents:
Ex.R1: Authorization letter
Ex.R2: MLC extract
Ex.R3: Police intimation extract
(Mohamed Arifulla C.F)
C/c XXI Addl. Small Causes Judge
& ACMM, Bengaluru.