Bangalore District Court
Sri. M.Veerabhaskar vs National Insurance Co. Ltd on 17 March, 2018
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY.
SCCH-14
Dated this the 17th day of March, 2018
PRESENT: Sri. S.R.PARADESHI.,
B.Com.,LL.B.,(Spl.)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.4134/2016
Petitioner/s : Sri. M.Veerabhaskar,
S/o. Veerabadrayya,
Aged about 50 years,
Residing at:
No.6, 7th main,
Veerasagara Main Road,
Attur, Yalahanka,
Bengaluru - 560 064.
(Pleader by Sri.BKV)
- V/s -
Respondent/s 1. National Insurance Co. Ltd.,
Regional Office, 3rd Floor,
Subbaram Complex,
M.G. Road,
Bengaluru - 560 001.
(Policy No. 100300/31/16/
6100000229)
(Pleader by Sri.B.P)
SCCH-14 2 MVC No.4134/2016
2. M/s. Berger Paints India Ltd.
No.22, Fort AKR Road,
Opposite to Vanivilas hospital,
Bengaluru- 560 002.
(Pleader by Sri.P.P)
******
JUDGMENT
The petitioner filed the petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
As per the case of the petitioner that, on 07-05- 2016 at about 4.35 p.m., the petitioner was proceeding on his Motor Cycle bearing Regn.No.KA-04-ES-3906 on 16th B Cross, near Thamanna Jewellary observing the traffic rules, at that time, all of a sudden a car bearing Reg. No.KA-50-N-9538 stopped in the middle of the road, negligently, without putting indicators and has opened the front right side door of the said car negligently and touched the petitioner who was coming next to the said car. Due to the said impact, the petitioner fell down and sustained injuries i.e. multiple fracture of meta tarsal left, fracture of left index finger, thrombocytopenia and abrasion all over the body. It is further submitted that SCCH-14 3 MVC No.4134/2016 immediately he was shifted to Apple hospital, wherein he took treatment as inpatient and multiple operation were done to him. He has spent more than Rs.1,50,000/- towards medical and other allowances.
It is further submitted that prior to the accident, he was hale and healthy and was aged about 50 years and was a Machine Operator at Federal Moghul Ltd. and was earning a sum of Rs.25,000/- per month. Due to the accidental injuries he became disabled to continue his work and he is not in a position to work permanently.
It is further submitted that due to the accidental injuries his left foot is disfigured and due to the loss of skin and consequent loss of shape of left foot, he cannot show it to the external world and he fell shy and disquised and suffering lot of mental agony and pain and he cannot feel free to go out and to attend any function and he has to cover his foot always. It is further submitted that he need to undergo one more operation for correction of shape and injury, for skin grafting as has been advised by the doctor and which need to spend Rs.1,00,000/- and he has to take bed rest for about 2 months after said fracture operation.SCCH-14 4 MVC No.4134/2016
It is further submitted that jurisdictional police have registered the case against the driver of car under crime No.122/2016 under Section 279, 338 of IPC and thereafter they have filed charge sheet against the car driver. On other grounds, he has prayed for awarding compensation with cost and interest.
3. In response to the notice, both the respondents No.1 & 2 have appeared through their respective counsel and filed separate written statement.
The brief facts of the written statement of respondent No.1 are as under:-
This respondent has not admitted the issuance of insurance policy to the offending car, however the liability if any subjected to the terms and conditions of the policy and also subject to the holding of a valid and effective driving licence by offending vehicle driver and RC. This respondent has contended that there is no actionable negligence on the part of driver of the offending car, whereas the petitioner himself was solely responsible for the cause of alleged accident. It has also denied the accident and manner in which the accident took place. It is further contended that the driver of offending car was not holding a valid and effective license SCCH-14 5 MVC No.4134/2016 as on the date of accident and the owner of the offending vehicle knowing fully well that the driver did not possess valid and effective driving licence, entrusted the same, thereby the owner of the offending vehicle has committed the breach of terms and conditions of the policy. It is also denied the age, occupation and income of the petitioner and also denied the injuries sustained by him, treatment taken for those injuries and medical expenses incurred by him. The compensation claimed by the petitioner is excessive and exorbitant. Hence, on other grounds, the respondent No.1 has prayed for dismissal of claim petition with costs.
The brief facts of the written statement of respondent No.2 are as under:-
This respondent has contended that, the petition is not maintainable either in law or on facts of the case. He admitted that he is the owner of the offending car. It is further contended that as on the date of accident, he had a valid insurance policy on the car through the respondent No.1 the policy was in force. He has denied all the petition averments made by the petitioner. Hence, on other ground the 2nd respondent has prayed for dismissal of claim petition with costs.SCCH-14 6 MVC No.4134/2016
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 07-05-2016 at about 4.35 p.m. on 16th B Cross, Chikkabommasandra, Yalahanka New Town, Bengaluru, in an accident arising due to rash and negligent driving of driver of Car bearing Reg. No.KA-50-N-
9538?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. The petitioner has examined himself as PW.1 and got marked Exs.P.1 to P.10 and closed his side evidence. On the other hand, the 2nd respondent examined its authorized representative as RW1 and got marked Ex.R.1 to R.3 documents.
6. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In the Affirmative.
Issue No.2 : Partly in the affirmative,
SCCH-14 7 MVC No.4134/2016
Issue No.3 : As per final order,
for the following:
REASONS
8. Issue No.1:- In this case, the petitioner has filed this petition seeking compensation for the injuries sustained by him in a road traffic accident that occurred on 07-05-2016 at about 4.35 p.m., when he was proceeding on his Motor Cycle bearing Regn.No.KA-04-
ES-3906 on 16th B Cross, near Thamanna Jewellary observing the traffic rules, at that time, all of a sudden a car bearing Reg. No.KA-50-N-9538 stopped in the middle of the road, negligently, without putting indicators and has opened the front right side door of the said car negligently and touched the petitioner who was coming next to the said car. Due to the said impact, the petitioner fell down and sustained injuries i.e. multiple fracture of meta tarsal left, fracture of left index finger, thrombocytopenia and abrasion all over the body. It is further submitted that immediately he was shifted to Apple hospital, wherein he took treatment as inpatient and multiple operation were done to him. He has spent more than Rs.1,50,000/- towards medical and other allowances.
SCCH-14 8 MVC No.4134/2016It is further submitted that prior to the accident, he was hale and healthy and was aged about 50 years and was a Machine Operator at Federal Moghul Ltd. and was earning a sum of Rs.25,000/- per month. Due to the accidental injuries he became disabled to continue his work and he is not in a position to work permanently.
It is further submitted that due to the accidental injuries his left foot is disfigured and due to the loss of skin and consequent loss of shape of left foot, he cannot show it to the external world and he fell shy and disquised and suffering lot of mental agony and pain and he cannot feel free to go out and to attend any function and he has to cover his foot always. It is further submitted that he need to undergo one more operation for correction of shape and injury, for skin grafting as has been advised by the doctor and which need to spend Rs.1,00,000/- and he has to take bed rest for about 2 months after said fracture operation.
It is further submitted that jurisdictional police have registered the case against the driver of car under crime No.122/2016 under Section 279, 338 of IPC and thereafter they have filed charge sheet against the car driver. On other grounds, he has prayed for awarding compensation with cost and interest.
SCCH-14 9 MVC No.4134/2016 9. On other hand, both the respondents No.1 & 2have appeared through their respective counsel and filed separate written statement. The 1st respondent has not admitted the issuance of insurance policy to the offending car, however the liability if any subjected to the terms and conditions of the policy and also subject to the holding of a valid and effective driving licence by offending vehicle driver and RC. This respondent has contended that there is no actionable negligence on the part of driver of the offending car, whereas the petitioner himself was solely responsible for the cause of alleged accident. It has also denied the accident and manner in which the accident took place. It is further contended that the driver of offending car was not holding a valid and effective license as on the date of accident and the owner of the offending vehicle knowing fully well that the driver did not possess valid and effective driving licence, entrusted the same, thereby the owner of the offending vehicle has committed the breach of terms and conditions of the policy. It is also denied the age, occupation and income of the petitioner and also denied the injuries sustained by him, treatment taken for those injuries and medical expenses incurred by him. The compensation claimed by the petitioner is excessive and SCCH-14 10 MVC No.4134/2016 exorbitant. Hence, on other grounds, the respondent No.1 has prayed for dismissal of claim petition with costs.
10. On the other hand, the 2nd respondent has contended that, the petition is not maintainable either in law or on facts of the case. He admitted that he is the owner of the offending car. It is further contended that as on the date of accident, he had a valid insurance policy on the car through the respondent No.1 the policy was in force. He has denied all the petition averments made by the petitioner. Hence, on other ground the 2nd respondent has prayed for dismissal of claim petition with costs.
11. In order to prove his case, the petitioner himself examined as PW1 and reiterated the plaint averments in his examination chief affidavit. In support of his oral evidence, he has produced Ex.P.1 to P.10 documents.
12. The 2nd respondent examined its authorized representative as RW1 and got marked Ex.R.1 to R.3 documents on his behalf.
SCCH-14 11 MVC No.4134/201613. With regard to the negligence part is concerned, in his cross-examination the PW1 has admitted that width of the road is 20 feet at the place of accident. Further he admitted that there is a footpath on either side of the road. It is suggested that the driver of the offending car parked his car on footpath with signal and indicator and he himself was riding the motor cycle in a rash and negligent manner without observing the signal and indicator given by the offending car driver and due to his negligence the alleged accident has occurred, for that he denied.
14. Besides, the petitioner has produced the copy of complaint along with FIR marked at Ex.P.1. The complaint is came to be lodged by the petitioner himself and in the complaint it is mentioned that, the driver of the offending car, parked the same by the left side of road and without giving any indicator, opened the front door of the offending car, due to which, door of the car touched to the motor cycle of the petitioner, thereby the petitioner fell down and sustained injuries and the car driver himself took the petitioner to one Raghavendra clinic and then to Chaitanya Medical center and then the petitioner's relatives came there and took the petitioner to the Apple hospital.
SCCH-14 12 MVC No.4134/201615. As per the sketch marked at Ex.P.3 and panchanama marked at Ex.P.4, which show the width of the road at the place of accident is 40 feet. In the cross- examination made by advocate for 2nd respondent it was asked him, what type of the precaution would taken by the car driver, for that he deposed that while opening the door of the car he would have taken precaution by observing that whether the vehicles were coming on the road or not. In this case, by perusing the evidence and documents it shows that the driver of the offending car without the observing on coming of the vehicles, he suddenly opened the door and touched to the petitioner's motor cycle and due to this he fell down and sustained injuries. In this case, the respondent No.2 examined his authorized representative by name Mr.Devashishnath as RW1 and got marked Ex.R.1 to R.3. In is examination- in-chief he deposed that the respondent No.2 is the owner of the offending car and he has produced the registration certificate of the offending car. He further deposed that as on the date of alleged accident the respondent No.2 had valid insurance policy on the car through respondent No.1 and it is valid for the period from 01-04-2016 to 31-03-2017. He has also produced the copy of policy which is marked as Ex.R.3. But he SCCH-14 13 MVC No.4134/2016 has not stated anything about that how the accident has occurred and by whose fault it was occurred.
16. Apart from this, on perusal of Ex.P.1-FIR, it discloses that on the basis of the complaint produced along with FIR lodged by the petitioner, the Yelahanka Traffic Police have registered the case in their Crime No.122/2016 for the offence under Sec.279 and 337 IPC, whereas later on after conducting panchanama and IMV report and also after completion of investigation, the concerned police have filed the charge sheet marked at Ex.P.2 against the driver of offending car for the offences punishable under Sec.279 & 338 of IPC. Even the IMV report marked at Ex.P.9 shows that there are no mechanical defects found in both the vehicles involved in the alleged accident.
17. Besides, the petitioner to prove that due to the accident he sustained grievous injuries, he has produced the Discharge summary issued by Apple hospital marked at Ex.P.6, wherein it is mentioned the alleged history of RTA, patient came with bleeding in the left foot and pain in the left index finger. Further on perusal of wound certificate marked at Ex.P.5, it also shows that petitioner has sustained injuries i.e., compound type II fracture SCCH-14 14 MVC No.4134/2016 shaft of 2nd, 3rd, 4th meta tarsal left foot and fracture shaft of middle phalynx of left index finger with lacerated wound.
18. Therefore, for the above reasons and discussion as well as the documentary evidence, the petitioner has proved that the accident has occurred due to the negligence act of the driver of the car bearing Reg.No.KA-50-N-9538 and as a result of the accident the petitioner has sustained injuries. Hence, I answer Issue No.1 in the Affirmative.
19. Issue No.2: This issue relates to the quantum of compensation to be paid to the petitioner and liability of the same.
TOWARDS PAIN AND SUFFERINGS: The petitioner has produced the wound certificate marked at Ex.P.5 and discharge summary marked at Ex.P.6 issued by Apple Hospital coupled with the evidence of PW1, it reveals that, the petitioner has sustained injuries i.e. compound type II fracture shaft of 2nd, 3rd, 4th meta tarsal left foot and fracture shaft of middle phalynx of left index finger with lacerated wound.
Further on perusal of Ex.P.6, which discloses that, the doctors diagnosed with multiple meta tarsal fracture SCCH-14 15 MVC No.4134/2016 left and left index finger, viral fever with thrombocytopenia and under the head operative note discloses, under spinal anesthesia, parts painted and draped infiltration given, wound debridement done, k- wire fixation done, complete hemostasis achieved wound closed in layers POP done, never block given to the left index finger and displaced join reduced and spl and post operative period the patient developed fever CBC shoed thrombocytopenia for which dengue serology done and symptomatic treatment given. Further on perusal of Ex.P.6, it shows that the petitioner admitted to the said hospital on 07-05-2016 and discharged on 10-05-2017, as such the petitioner took inpatient treatment for a period of 4 days. On the other hand, evidence of P.W.1 is corroborated with the contents of wound certificate, discharge summary and photographs (4 in Nos.) with CD at Ex.P.5, 6 & 8. So, considering the nature of injuries sustained by the petitioner and period of treatment taken by him, this Tribunal feels to award a sum of Rs.30,000/- under the head of Pain and sufferings.
20. Towards Attendant Charges, Nutritious Food & Transportation Charges:- Since the petitioner has taken treatment for a period of 4 days at Apple SCCH-14 16 MVC No.4134/2016 hospital and during the said period, the petitioner might have spent amount for nourishment, conveyance and attendant charges apart from incurring medical expenses and taken treatment at private hospital. There is no document regarding amount spent for nourishment, conveyance and attendant charges days, as such, he is entitled for a sum of Rs.5,000/- under this head.
21. TOWARDS MEDICAL EXPENSES: So far as this head is concerned, in the cross-examination PW1 admitted that he is having medical reimbursement facility. He also admitted that his company has paid the medical expenses to him and the witness volunteers that he has incurred part amount and company has paid part amount. Under such circumstances, considering this head does not arise.
22. LOSS OF FUTURE EARNING CAPACITY DUE TO PERMANENT DISABILITY:- It is the contention of the petitioner that, due to the accidental injuries, he is permanently disabled and lost his earning capacity. To prove and substantiate the same, he has not examined the doctor before the court. Further he has contended that he is continued in service. Hence, the petitioner is not entitled under this head.
SCCH-14 17 MVC No.4134/2016So, looking to the same, he continued in his work and he is working as Machine Operator at Federal Mogul Ltd. and earning a sum of Rs.23,200/- per month as per pay slips marked at Ex.P.10. When the petitioner has continued to do is work and getting salary, there cannot be any ground for this Tribunal to award any compensation under the head loss of future earning capacity. This view is based upon the decisions of our Hon'ble High Court of Karnataka reported in, United Insurance Co. Ltd., Vs. D.C. Rajanna & Anr. ILR 2000 KAR 3443, Wherein it is held that, "Motor Vehicles Act, 1988-Sec.168 -
Compensation for Loss of future earnings"
can be awarded in case where it is shown that the claimant has, in fact, suffered such a loss and not otherwise. It is only in so far as it relates to the award of compensation of Rs.1,15,200/- towards loss of future earnings, it is contended that the question of awarding compensation under this head does not arise since there was no any loss of earning as the injured was working as the Deputy Manager of H.M.T and that there was also no evidence to show his wages have been reduced or any increments have been stopped or withheld. It is unfortunate that in almost all cases, the Claims Tribunal without applying its mind and appreciating the evidence, blindly award compensation on the heading "Loss of future earnings". It has to be borne in mind, while awarding SCCH-14 18 MVC No.4134/2016 compensation for future loss of earnings, there must be evidence to show that as a result of injury, the income was reduced or there was loss of earnings or he was removed from service on account of disability or he is incapable of doing any work. In the absence of these facts, the question of awarding any compensation on the heading, loss of future earnings, does not arise."
23. Further it is observed that at the most the Tribunal could have awarded the compensation for disability or for loss of amenities of life. The petitioner has not examined the doctor to assess the disability. So, taking into consideration of nature injuries sustained by the petitioner, he is entitled for compensation of Rs.25,000/- under the head loss of amenities.
24. LOSS OF INCOME DURING LAID UP PERIOD:
So far as income of the petitioner is concerned, according to the PW-1, he was working as Machine Operator and earning a sum of Rs.30,000/- per month. To prove and substantiate the same, he has produced salary slips (3 in Nos.) issued by Federal Mogul Coetze India Ltd., marked at Ex.P.10 for the month of February 2016, March 2016 and April 2016. On perusal of Ex.P10, wherein it is mentioned his occupation as Semi skilled he was getting net salary of Rs.23,200/- p.m. In his SCCH-14 19 MVC No.4134/2016 cross-examination, PW1admitted that he is still working in the said company as a Machine Operator and further the witness volunteers he is getting several difficulties due to the accidental injuries. He also admitted that he is getting more salary subsequent to the accident. Further he volunteers that since he is unable to attend his work regularly he is getting less salary. But no documents are produced to show that after the accident he is getting less salary as contended by him.
Further on perusal of Ex.P.7 issued by Federal Mogul Power Train, it shows that the petitioner has not attended to his work from 08-05-2016 to 19-07-2016. Even, he has not examined the author of this document to substantiate that he has not attended to his work for a period of two months, whereas considering the nature of injuries sustained by him, period of treatment taken and disability suffered by him, the petitioner might have prevented from attending his work for a period of two months. Hence, he is entitled for the compensation of Rs.46,000/- under the head this head. So, the petitioner is entitled for total compensation under the following heads:SCCH-14 20 MVC No.4134/2016
1. Pain and sufferings Rs. 30,000/-
2. Nourishment, conveyance Rs. 5,000/-
and attendant charges
3. Loss of amenities Rs. 25,000/-
4. Loss of laid up period Rs. 46,000/-
during taking treatment Total Rs.1,06,000/-
Hence, the petitioner is entitled for total compensation of Rs.1,06,000/-.
25. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @ 9% p.a., Hence, I hold that the petitioner is entitled for interest @ 9% p.a., from the date of petition till the date of payment.
26. Liability: Admittedly the respondent No.1 is insurance company and respondent No.2 is the RC insurer of the car bearing Regn.No.KA-50-N-9538. As discussed above, the accident has occurred due to negligence of both petitioner and driver of offending SCCH-14 21 MVC No.4134/2016 vehicle. Consequently, I answer the issue as above. Though the respondent No.2 has taken contention that he has not issued the policy, but he ahs not examined its official to prove the same. On the other hand, the respondent No.2 owner of the offending vehicle has produced the copy of the policy marked at Ex.R.3, which was in force as on the date of accident.
27. Even though the respondent No.1 have taken contention that, the driver of the offending vehicle was not possessed valid and effective driving license at the time of accident, to prove and substantiate the same the respondents have not led any evidence. Hence, the respondents No.1 and 2 are jointly and severally liable to pay compensation to the petitioner, whereas, the respondent No.1 being insurer is primarily responsible and liable to pay compensation to the petitioner. Accordingly, I answered Issue No.2 Partly in the Affirmative.
28. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.SCCH-14 22 MVC No.4134/2016
The petitioner is entitled for a compensation of Rs.1,06,000/- with interest @ 9% per annum from the date of petition till its realization.
The respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner with interest. The respondent No.1 being insurer is liable to deposit the amount before Tribunal within two months from the date of this order.
After deposit, the entire amount with accrued interest shall be released in favour of the petitioner through account payee cheque with proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer and transcribed by her and then corrected by me and pronounced in the open court, on this the 17th day of March 2018.) (S.R.PARADESHI) XVI ADDL.JUDGE Court of Small Causes & MACT.,Bengaluru.SCCH-14 23 MVC No.4134/2016
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Sri. M.Veerabhaskar
RW.1 Mr. Devashish Nath
Ex.P.1 Copy of FIR with complaint
Ex.P.2 Copy of Charge sheet
Ex.P.3 Copy of Sketch
Ex.P.4 Copy of Panchanama
Ex.P.5 Copy of Wound certificate
Ex.P.6 Copy of Discharge summary
Ex.P.7 Copy of Service certificate cum leave
certificate
Ex.P.8 Photographs (4 in Nos.) with CD
Ex.P.9 Copy of IMV report
Ex.P.10 Pay slips (3 in Nos.)
ExR.1 Notarized copy of Authorization
Letter
ExR.2 Notarized copy of Certificate of
Registration
ExR.3 Notarized copy of Insurance policy
XVI ADDL.JUDGE
Court of Small Causes &
MACT., Bengaluru.