Bangalore District Court
Sri.Keshav Patel K.G vs Sri.Syed Aslam on 25 July, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY. SCCH-14
PRESENT: BASAVARAJ CHENGTI., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.1630/2015
Dated this the 25th day of JULY 2016
Petitioner/s : SRI.KESHAV PATEL K.G
S/o late. K.V.Gundappa
Aged about 20 years,
R/at No.12, Mulkatamma Nilaya,
MSV Net Work Road,
Amruthahalli, Sahakaranagar Post,
Bangalore-560 092.
V/s (By pleader Sri MBM)
Respondent/s 1. SRI.SYED ASLAM
No.597, 1st floor,
'A' Block, 5th main,
Behind BESCOM Office,
Sahakaranagar,
Bangalore-560 092.
(Owner of car)
(Exparte)
2. NATIONAL INS.CO.LTD.,
TP-HUB,
Shubharam Complex,
M.G.road,
Bangalore-560 001.
(Insurer of car)
(By pleader Sri HNK)
SCCH-14 2 MVC No.1630/2015
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.10,45,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 01.01.2015 mid night at about 12.03 a.m., the petitioner and his friend namely Prashanth were proceeding on his motorcycle bearing No.KA-04-EG-3389 from Yelahanka towards Kempapura. When they reached near fly over in front of Colombia Asia Hospital in very slowly and cautiously with traffic rules and took left turn with left indicator signal to service road, at that time, Car bearing No.KA- 53-N-8504 driven by its driver at high speed, in rash and negligent manner, endangering human life without observing the traffic rules came and dashed against the petitioner's motorcycle. Due to impact, both the occupants fell down and sustained multiple grievous injuries. Immediately, the petitioner was taken to Colombia Asia Hospital, Hebbal, Bangalore wherein fist aid treatment was given and then, he was shifted to Panacea Hospital, Bangalore for further treatment, wherein he was admitted as an inpatient from 01.01.2015 to 05.01.2015. The petitioner sustained Type IIB fracture of middle 3rd left femur, Type I compound comminuted fracture of lower 3rd left leg, severe head injury and multiple abrasions of both hands, legs, shoulders and back etc., He underwent surgeries for his right leg i.e., right femur and right both bones and wound debridement was done, comminuted fracture lower 3rd both bones with intra medullary SCCH-14 3 MVC No.1630/2015 nailing, left thigh wound, lateral aspect middle 3rd left femur fracture. Thereafter, he was discharge with an advice to take bed rest, to take regular follow up treatment and to take extra nourishment. The petitioner spent huge amount towards medical, conveyance, nourishment charges and other incidental expenses. He has been advised to undergo another two operations in the near future for removal of steel implants from his left leg and he has to incur additional medical and other incidental expenses. Prior to the accident, the petitioner was hale and healthy, was aged 20 years, was working as a sales man at M/s Beema Concrete and Allied Products, Bagalur Post, Bangalore and was earning Rs.10,000/- p.m., Due to accidental injuries, he has to be under rest and follow up treatment for about one year during which period he is unable to do his work as a resulting loss of earning and earning capacity. The petitioner suffered sever pain, deep mental shock. Still there is swelling with gross deformity in his left leg, the movements of his leg are very much painful and restricted and his left leg has become very weak. He cannot sit, stand, walk, run sit on the floor, climbing stairs, cannot bear any weights and cannot ride two wheeler and cannot do his job. Hebbal Traffic police have registered Cr.No.02/2015. The respondents are the owner and insurer of the said car and are liable to pay compensation. Hence, the petitioner has sought for awarding compensation as follows:SCCH-14 4 MVC No.1630/2015
1. Medical expenses Rs.3,00,000/-
2. Conveyance charges Rs. 25,000/-
3. Nourishment charges Rs. 25,000/-
4. Damages for the injuries sustained and for permanent disability Rs.4,00,000/-
5. For mental shock pain and suffering Rs. 75,000/-
6. Towards loss of income for 1 year Rs.1,20,000/-
7. Loss of amenities and Enjoyment in life Rs. 50,000/-
8. Future medical expense Rs. 50,000/-
Total Rs.10,45,000/-
3. In pursuance of the notice, the respondent no.2 has appeared before the Court through his counsel and filed written statement denying the averments of the petition as false. He has admitted the issuance of policy in favour of the respondent no.1 in respect of Car bearing No.KA-53-N-8504, but he has contended that the insured vehicle was not involved in the accident, that the driver of the insured vehicle was not holding a valid and effective driving licence as on the date of accident, that the insured has violated the terms and conditions of the policy and he is not liable to indemnify the respondent no.1, that the insured and concerned police have not complied with their mandatory duties, that the accident has occurred due to rash and negligent riding of the rider of the motorcycle, that there was no negligence on the part of the driver of the insured vehicle, that the petition is bad for non-joinder of necessary and proper parties, that the compensation claimed by the petitioner is SCCH-14 5 MVC No.1630/2015 highly excessive, exorbitant and exaggerated. Hence, he has sought for dismissal of the petition with cost. The notice was not served upon the respondent no.1 in the ordinary course. Hence, notice was issued to him by substitute service i.e., by paper publication. Inspite of publication of notice in newspaper, the respondent no.1 remained absent and hence, he is placed exparte.
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 01.01.2015 at about 12.03 a.m., In front of Columbia Asia hospital, B.B. road, Hebbal, Bangalore, in an accident arising due to rash and negligent driving of driver of Car bearing No.KA-53-N-8504?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined two witnesses as PW.2 and 3. He has got marked documents as Ex.P1 to 20. The respondent no.2 has examined his officer as RW-1 and got marked documents as Ex.R1 to 3.SCCH-14 6 MVC No.1630/2015
6. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : Partly in affirmative.
Issue No.2 : In affirmative. For Rs5,78,000/-
the respondent no.2.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: In order to prove the negligence of the driver of the Car bearing No.KA-53-N-8504 for the occurrence of the accident, the petitioner has relied upon his own oral evidence and documentary evidence at Ex.P1 to 7. To prove the causing of grievous injuries in the nature of permanent disablement, he has placed reliance on his own oral evidence and that of PW-2 Dr.Ramachandra and medical records at Ex.P8, 9, 15, 16, 17, 19 and 20. He has examined PW-3 Basavaraju who has produced medical records of Panacea Hospital. His oral evidence is not helpful to decide this issue. To prove his defence and disprove the case of the petitioner, the respondent No.2 has examined his Administrative officer Shivakumar as RW-1 and got marked copy of policy, copy of notice and postal cover as Ex.R1 to 3.
9. PW-1 Keshav Patel is the petitioner and he has stated that on 01.01.2015 at 12.03 am., he was riding the motorcycle bearing No.KA-04-EG-3389 with his friend Prashanth as pillion rider from Yelahanka towards Kempapura, that when they were taking left turn with left indicator towards service road near flyover in front of SCCH-14 7 MVC No.1630/2015 Columbia Asia hospital, at that time, Car bearing No.KA-53-N-8504 driven by its driver in rash and negligent manner suddenly came and dashed against the motorcycle from right side and caused accident, that due to the impact, he and pillion rider Prashanth forcibly fell down with motorcycle on the road and sustained multiple injuries resulting in permanent disability. PW-2 Dr.Ramachandra has supported the version of PW-1 and stated that the petitioner has sustained fracture injuries on his right leg, that the petitioner is suffering from permanent disability of 51.1% to right lower limb and of 25.55% to the whole body. There is nothing on record to disbelieve the evidence of PW-1 and 2 regarding injuries. However, the dispute regarding extent of disability can be dealt while discussing issue No.2. As far as evidence of PW-1 regarding negligence is concerned, it can be believed to the extent of corroboration from the documentary evidence.
10. RW-1 Shivakumar has deposed that there was no negligence on the part of the driver of the insured car, that the accident has occurred only because of rash and negligent riding of the motorcycle by the petitioner, that the driver of the insured car has lodged complaint before police regarding accident, that panchanama and sketch clearly indicate the negligence of the petitioner, that the petitioner was solely responsible for cause of accident and there was no negligence of the driver of the car. In cross-examination, he has admitted that he has no personal knowledge about the accident and he is deposing on the basis of records, that the police have investigated matter and filed charge sheet against the driver of insured vehicle, that the accident has SCCH-14 8 MVC No.1630/2015 occurred on the service road, but he has denied the suggestion that the accident has occurred due to the sole negligence of car driver and he is deposing falsely to escape from liability. Cross-examination of DW-1 makes it clear that he is not an eyewitness to the accident.
Hence, his evidence regarding manner of accident is inadmissible.
11. Copy of wound certificate is at Ex.P8 and it reveals that the petitioner was taken to Columbia Asia hospital at 12.15 am., on 01.01.2015 with the history of road traffic accident, that the petitioner has sustained fracture injuries. The doctors have described the injuries of the petitioner as simple and grievous in nature. OPD book at Ex.P16 discloses that the petitioner is suffering from permanent disability as deposed by PW-2. Discharge summary at Ex.P9 reveals that the petitioner was admitted in Panacea Hospital and underwent surgery with implants. Case sheet at Ex.P19 and X-rays at Ex.P15 and 20 confirm the causing of fracture injuries to the petitioner. There is nothing on record to disbelieve the history of injuries of the petitioner. Hence, I am of the opinion that the petitioner has sustained simple and grievous injuries in road traffic accident on 01.01.2015.
12. Copies of police records at Ex.P1 to 7 disclose that Hebbal Traffic Police have registered Cr.No.02/2015 on 02.01.2015 at about 11.40 am., on the basis of information given by one Roshan, investigated the matter and filed charge sheet against the said Roshan for the offences punishable U/s 279, 337 and 338 of IPC. The said Roshan is none other than the driver of Car bearing No.KA-53-N- 8504 which is involved in the accident. The police have recorded the SCCH-14 9 MVC No.1630/2015 statement of petitioner on 02.01.2015 and it corroborates the evidence of PW-1. The averments of the complaint and FIR at Ex.P1 support the version of RW-1 regarding negligence of the petitioner for occurrence of the accident. Copy of statement of witnesses are at Ex.P4 and on the basis of such statements, the police have filed charge sheet against the driver of Car bearing No.KA-53-N-8504. The said charge sheet is prima facie evidence as to negligence of the said driver for the occurrence of accident, but it is not a conclusive proof regarding the said fact.
13. IMV report at Ex.P7 discloses that both the vehicles were damaged in the accident, that the brake system of the same was in order. IMV authority has opined that the accident was not due to mechanical defects of the vehicles. It means, the accident was due to human error. It should have occurred due to the negligence of the petitioner or of driver of Car bearing No.KA-53-N-8504 or both of them. PW-1 has deposed about the negligent driving of the driver of the car. His evidence is corroborated by the contents of Ex.P2 to 4. Evidence of RW-1 is hearsay, but complaint was lodged by the driver of insured car alleging that the accident has occurred due to sole negligence of the rider of the motorcycle bearing No.KA-04-EG-3389 i.e., the petitioner. Copy of sketch and panchanama are at Ex.P5 and 6 which reveal that both the vehicles were proceeding from north to south on Bellary road. The petitioner was riding his motorcycle on the main road, whereas the car was driven on the service road. The petitioner has taken deviation at flyover in front of Columbia Asia hospital by taking left turn to go to service road. The car came in the same direction and caused accident. The car was on its correct side SCCH-14 10 MVC No.1630/2015 at the time of accident. The petitioner should have taken appropriate care while taking his vehicle to the service road from main road. It was the night of new year. The time of accident is 00.03 hours of new year. If the motorcycle was ridden slowly and was taken to the service road with due care, the accident would not have occurred. At the same time, if car was driven slowly and if the driver of car had applied brakes, the accident could have been avoided. The sketch and panchanama clearly indicate the negligence of the petitioner as well as the driver of the car for the occurrence of accident. Since, the motorcycle came from right side of the car, the driver of car should have allowed it proceed further. Hence, degree of negligence on the part of the driver of the car was greater than the degree of negligence of the petitioner. Thus, the petitioner has proved this issue in part through his own oral evidence and that of PW-2 and documentary evidence at Ex.P1 to 9, 15, 16, 19 and 20. The respondent No.2 has succeeded to prove the contributory negligence on the part of the petitioner through documents at Ex.P1, 5 and 6. Under the facts and circumstances of the case, I am inclined to assess the extent of negligence of the petitioner @ 25% and that of the driver of the car @ 75%. Hence, I answer the issue in partly affirmative.
14. ISSUE NO.2: PW-1 Keshav Patel has deposed about his age, occupation and income. His evidence is as per the averments of the petition. He has produced copy of driving license and salary certificate to prove his age, occupation and income which are marked as Ex.P14 and 12. The date of birth of the petitioner is shown as 29.02.1996 in the driving license. It means, he was aged 18 years on the date of accident. His age is shown as 19 years in police records SCCH-14 11 MVC No.1630/2015 and as 19/20 years in medical records. There is nothing on record to disbelieve the contents of driving license at Ex.P14. Hence, I hold that the petitioner was aged 18 years on the date of accident. Appropriate multiplier for the said age is 18.
15. Evidence of PW-1 and contents of salary certificate at Ex.P12 reveal that the petitioner was working as salesman in M/s Bheema Concrete and Allied Products, Bangalore and was earning Rs.10,000/- pm., Ex.P2 is copy of statement of the petitioner as recorded by the IO after the accident wherein he has stated that he was working in private company. The said statement supports the version of PW-1 regarding his occupation. Hence, I hold that the petitioner was working as Salesman in M/s Bheema Concrete and Allied Products, Bangalore. But, the petitioner has not examined his employer and has not produced his pay slips, bank statement to prove his salary certificate at Ex.P12. The respondent No.2 has denied the contents of Ex.P12. Then, it was the duty of the petitioner to prove the contents of salary certificate by examining its author. In the absence of evidence of author, the contents of Ex.P12 can not be believable. The petitioner could have produced pay slips and bank statement to prove his income, but he has not produced the same. Hence, evidence of PW-1 regarding his income is unacceptable. In the absence of positive evidence, I am inclined to assess the income of the petitioner notionally @ Rs.9,000/- pm., His annual income comes to Rs.1,08,000/-.
16. PW-1 Keshav Patel has deposed about the injuries caused to him in the accident. PW-2 Dr.Ramachandra has supported the SCCH-14 12 MVC No.1630/2015 version of PW-1 regarding causing of injuries to him. Copy of wound certificate and discharge summary at Ex.P8 and 9 corroborate the oral evidence of PW-1 regarding injuries. X-rays at Ex.P15 and 20 confirm the causing of fracture injuries to the petitioner. Discharge summary and case sheet at Ex.P19 support the version of PW-1 regarding the treatment given to him in Panacea hospital. On perusal of oral and documentary evidence described above, it reveals that the petitioner has sustained following injuries in the accident:
1. Type II compound fracture middle 1/3rd of right femur
2. Type I compound comminuted fracture lower 1/3rd of both bones of right leg.
The petitioner was given first aid at Columbia Asia hospital and was admitted in Panacea Hospital from 01.01.2015 to 05.01.2015 and underwent wound Debridement, intra medullary nailing for right femur, intra medullary nailing for right leg under SA on 01.01.2015. He was advised to take rest, follow up treatment and to do exercise. The petitioner has not produced follow up records, but the injuries caused to the petitioner are of such a nature which require follow up treatment and rest for a period of 4 to 5 months. Total laid up period of the petitioner comes to 5 months. During the said period, he might have spent amount for nourishment, conveyance and attendant charges apart from incurring medical expenses. He has produced termination certificate at Ex.P13 to prove that he lost his job due to accident. Ex.P13 reveals that the petitioner was terminated from service on 02.04.2015. He has lost income due to accident. He is entitled for compensation towards loss of income during laid up period.
SCCH-14 13 MVC No.1630/201517. The petitioner has produced prescriptions and medical bills for Rs.1,84,624/- which are marked as Ex.P10 and 11. The medical bills are consistent with case sheet at Ex.P19. There is nothing on record to disbelieve the medical bills. However, the bill at Sl.No.4 for Rs.1,430/- is a deposit receipt. The amount of said bill is covered under the bill at Sl.No.1 to 3. Hence, bill at Sl.No.4 is liable to be rejected. If amount of said bill is deducted, net amount of medical bills comes to Rs.1,83,194/-. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.60,000/- towards pain and sufferings, Rs.1,84,000/- towards medical expenses, Rs.25,000/- towards nourishment, conveyance and attendant charges, Rs.45,000/- towards loss of income during laid up period.
18. PW-1 Keshav Patel has deposed that he is permanently disabled due to accidental injuries, that he lost his job and lost his earnings due to accident, that he is suffering from several difficulties. Except bare denials, nothing is elicited from him during cross- examination. PW-2 Dr.Ramachandra has stated that the petitioner is suffering from several difficulties which are due to accidental injuries. He has assessed the extent of disability of the petitioner @ 51.1% to right lower limb and @ 25.55% to whole body. He has stated that fractures of the petitioner are united with implants in situ and fracture of right fibula is malunited, that the petitioner has to undergo two more surgeries for removal implants. In cross- examination, he has stated that complaints of the petitioner are not documented. He has denied that since fracture are united, there can not be any disability. Contents of OPD book and X-ray at Ex.P16 and 17 corroborate the evidence of PW-2. There is nothing on record SCCH-14 14 MVC No.1630/2015 to disbelieve his evidence and the assessment made by him. However, in view of reunion of fractures and requirement of surgeries for removal of implants, I am of the opinion that if whole body disability is considered as 1/3rd of limb disability, it will meet the ends of justice. 1/3rd of 51% is 17%. I am of the opinion that the petitioner is suffering from limb disability of 51% and whole body disability of 17%. Since, he was a salesman, the disability will come in his way to do his work. Hence, the disability caused to the petitioner is physical as well as occupational resulting in loss of earning capacity. The petitioner has stated that he lost his earning capacity to the extent of 100%. He has produced Ex.P13 to prove the loss of earning capacity. But, the said termination letter is not sufficient to hold him as 100% disabled. He can get some other job and earn his livelihood. Looking to extent of limb disability and whole body disability, I am inclined to assess his loss of earning capacity @ 17%. Future loss of his earnings would be Rs.1,08,000X18X17%=Rs.3,30,480/- which can be rounded to Rs.3,31,000/-.
19. The petitioner is suffering from several difficulties as observed by PW-2. Such difficulties are due to fractures and malunion of right fibula. Those difficulties may persist in future resulting in loss of amenities and loss of marriage prospects. He has to undergo 2 surgeries for removal implants. There is no estimation regarding cost future surgeries. He has to live with permanent disability throughout his life. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.25,000/- towards disability, Rs.50,000/- towards loss of amenities, Rs.25,000/- towards loss of marriage prospects and Rs.25,000/- towards future SCCH-14 15 MVC No.1630/2015 medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under in the ordinary course :
1 Pain and sufferings Rs. 60,000/-
2 Medical expenses Rs.1,84,000/-
3 Nourishment, conveyance Rs. 25,000/- and attendant charges 4 Loss of income during laid Rs. 45,000/- up period (9000X5) 5 Loss of future income Rs.3,31,000/-
(Rs.1,08,000X18X17%) 6 Disability Rs. 25,000/-
7 Loss of amenities Rs. 50,000/-
8 Loss of marriage prospects Rs. 25,000/- 9 Future medical expenses Rs. 25,000/-
Total Rs.7,70,000/-
The petitioner is further entitled for interest @9% p.a., from the date of petition till the date of payment.
20. The respondents are the owner and insurer of Car bearing No.KA-53-N-8504. The petitioner has proved that the accident has occurred due to rash and negligent driving of driver of said vehicle. At the same time, the respondent No.2 has proved that there was contributory negligence on the part of petitioner to the extent of 25%. Hence, the respondents are jointly and severally liable to pay compensation and interest to the petitioner to the extent of 75% of above calculated amount. 75% of Rs.7,70,000/- is Rs.5,77,500/- which can be rounded to Rs.5,78,000/-. The respondent no.2 has denied his liability to compensate the petitioner on the ground of violation of policy conditions by the respondent no.1, but failed to prove it. As per the evidence on record, the policy was in force on the SCCH-14 16 MVC No.1630/2015 date of accident. Evidence of RW-1 and contents of Ex.R1 to 3 are not sufficient to prove the violation of policy conditions by the respondent No.1. Hence, the respondent no.2 is liable to indemnify the respondent no.1 and to compensate the petitioner. Consequently, I answer the issue as above.
21. ISSUE NO.3: In view of above discussion and findings, I proceed to pass following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.5,78,000/-with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,78,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order. Compensation for future medical expenses does not carry any interest.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance amount with interest shall be released in favour of the SCCH-14 17 MVC No.1630/2015 petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 25th day of JULY 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 18 MVC No.1630/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Keshav Patel
PW.2 Dr.Ramachandra S
PW.3 B.Basavaraju
Respondent' s
RW-1 Shivakumar
Ex.P1 - Copy of FIR with complaint
Ex.P2 - Copy of Statement
Ex.P3 - Copy of Charge Sheet
Ex.P4 - Copies of Statements (5 in nos)
Ex.P5 - Copy of Sketch
Ex.P6 - Copy of Panchanama
Ex.P7 - Copy of IMV report
Ex.P8 - Copy of Wound Certificate
Ex.P9 - Discharge Summary
Ex.P10 - Prescriptions (20 in nos)
Ex.P11 - Medical bills (38 in nos amounting to Rs.1,84,624/-)
Ex.P12 - Salary Certificate
Ex.P13 - Termination Letter
Ex.P14 - Copy of Driving Licence
Ex.P15 - X-rays (12 in nos)
Ex.P16 - OPD Book
Ex.P17 - X-ray
Ex.P18 - Authorization letter
Ex.P19 - Case sheet
Ex.P20 - X-rays (3 in nos.)
Respondent's
Ex.R1 - Copy of Policy
Ex.R2 - Copy of Notice
Ex.R3 - Postal Cover
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 19 MVC No.1630/2015
Dt.25.07.2016
P-MBM
R1-Exparte
R2-HNK
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.5,78,000/-with interest @ 9% per annum from the date of petition till the date of payment.SCCH-14 20 MVC No.1630/2015
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,78,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order. Compensation for future medical expenses does not carry any interest.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 21 MVC No.1630/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.1630/2015 Petitioner/s : SRI.KESHAV PATEL K.G S/o late. K.V.Gundappa Aged about 20 years, R/at No.12, Mulkatamma Nilaya, MSV Net Work Road, Amruthahalli, Sahakaranagar Post, Bangalore-560 092.
V/s (By pleader Sri MBM)
Respondent/s 1. SRI.SYED ASLAM
No.597, 1st floor,
'A' Block, 5th main,
Behind BESCOM Office,
Sahakaranagar,
Bangalore-560 092.
(Owner of car)
(Exparte)
2. NATIONAL INS.CO.LTD.,
TP-HUB,
Shubharam Complex,
M.G.road,
Bangalore-560 001.
(Insurer of car)
(By pleader Sri HNK)
WHEREAS, this petition filed on by the
petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the
SCCH-14 22 MVC No.1630/2015
injuries sustained by the petitioner/Death of in a motor
Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.5,78,000/-with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,78,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order. Compensation for future medical expenses does not carry any interest.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance SCCH-14 23 MVC No.1630/2015 amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the
__________________________________
Petitioner/s Respondent
No.1 No.2
__________________________________
Court fee paid on petition 10-00
Court fee paid on Powers 01-00
Court fee paid on I.A.
Process
Pleaders Fee
_____________________________
Total Rs. ----------------------------------
DecreeDrafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN:
BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 24 MVC No.1630/2015
SCCH-14 25 MVC No.1630/2015
SCCH-14 26 MVC No.1630/2015
MVC NO.1630/15
REASONS
ISSUE NO.1: The petitioner has pleaded that he sustained grievous injuries which led to permanent disability in an accident arising due to rash and negligent driving of the driver of car bearing no.xxxxxxxxx. The respondents are the owner and insurer of said car. Among them, the respondent no.2 insurance company has contested the matter, whereas the respondent no.1 owner of vehicle remained exparte. The respondent no.2 has denied the averments of the petition as to manner of accident and contended that there was no negligence on the part of the driver of car, but the accident was due to sole negligence of the petitioner.
The petitioner has relied upon his own oral evidence and that of PW-2 Dr. Ramachandra and of PW-3 Basavaraj to prove his case. He has produced copies of police records and medical records to corroborate the evidence of PW-1 to 3 which are marked as Ex.P-1 to
20. However, evidence of PW-3 is pertaining to production of medical records only and hence, his evidence is not helpful to either of the parties. The respondent no.2 has not produced any oral or documentary evidence to prove his defence. Nothing but only denials were extracted from PW-1 and 2. There is no evidence to disbelieve the evidence of PW-1 and 2 and contents of police records and medical records. It is to be noted that FIR and complaint at Ex.P-1 go in favour of the respondents, but investigation resulted in filing of charge sheet against the driver of car bearing no.xxxxxxxxxxx for the offences punishable U/s 279, 337 and 338 of IPC. No evidence is produced and no admission is extracted from PW-1 to believe that the charge sheet is defective or collusive. The respondent no.2 has not examined the driver of the car to prove the contents of FIR and complaint at Ex.P-1. Hence, allegations made in the complaint can not be accepted.
PW-1: xxxxxxxxxxx has deposed as per the averments of the petition. PW-2: xxxxxxxxxxxxxx has supported the version of PW-1 as to injuries caused to him and treatment given to him. He has stated that the petitioner is suffering from permanent disability of 51.1% to right lower limb and of 25.55% to whole body. Except bare denials, nothing is elicited from PW-1 and 2 to disbelieve their evidence. There SCCH-14 27 MVC No.1630/2015 is dispute regarding extent of disability caused to the petitioner which can be dealt while discussing issue no.2. The respondent no.2 has tried to elicit from PW-1 that the accident was due to his negligence and there was no negligence on the part of the driver of car bearing no.xxxxxxxxxxxx. There is no evidence to substantiate the contention of the respondent no.2 as to manner of accident. Hence, I disbelieve the defence and contention of the respondent no.2.
Copies of police records at Ex.P-1 to 7 disclose that one Roshan has lodged complaint on 2.1.2015 at 11.40 a.m., regarding accident which was registered by Hebbal traffic police who investigated the matter and filed charge sheet against the driver of car bearing no.xxxxxxxxxxx for the offences punishable U/s 279, 337 and 338 of IPC. There was a delay of a day in lodging complaint. The charge sheeted driver is the person who lodged complaint, but filing of complaint by the tortfeasor himself is no ground to disbelieve the case of the petitioner. Thus, delay is reasonable and acceptable. There is no evidence to believe that the accident was due to mechanical defects of the vehicle. IMV report reveals that both the vehicles were damaged, that brake system of the vehicles was in order and the accident was not due to mechanical defects of the vehicle. It means, the accident was due to negligence of the driver of car or of the petitioner or of the both. PW-1 has deposed about negligence of the driver of car bearing no.xxxxxxxxxx. Police records corroborate his evidence. There is nothing on record to disbelieve the contents of charge sheet which is prima facie evidence of negligence of the driver of the car. The sketch at Ex.P-5 supports the version of PW-1. As per sketch, the car was going from north to south on service road, whereas the motorcycle was also going in the same direction and when the motorcycle was taken to service road, then the accident has occurred. There is no contrary evidence regarding occurrence of the accident. There is no direct evidence as to negligence of the petitioner. The respondent no.2 could have examined the driver of the car or any witness named in the charge sheet to prove his defence, but he did not do so. Nothing is elicited from PW-1 as to sole or contributory negligence of the driver of car bearing no.xxxxxxxx.
Copy of wound certificate and discharge summary are at Ex.P- 8 and 9 which reveal that the petitioner sustained fracture injuries in RTA. There was no delay in admitting the petitioner to hospital. The SCCH-14 28 MVC No.1630/2015 petitioner was admitted in Panacea hospital, Bangalore from 1.1.2015 to 5.1.2015 and underwent surgery. The injuries were grievous in nature. PW-2:xxxxxxxxxxxx has deposed about permanent disability caused to the petitioner. OPD book and x- ray at Ex.P-16 and 17 support the version of PW-2 as to extent of disability caused to the petitioner. Nothing is there to discard oral and documentary evidence produced by the petitioner. Evidence of PW-1 and 2 coupled with contents of Ex.P-1 to 9, 15 to 20 substantiate the averments of the petition. The respondent no.2 has failed to rebut the said evidence. Hence, I hold that the petitioner has succeeded to prove that the accident was due to sole negligence of the driver of car bearing no.xxxxxxxxxxx, that there was no negligence on the part of the petitioner in riding the motorcycle involved in the accident, that grievous injuries were caused to the petitioner resulting in permanent disability. The respondent no.2 has failed to rebut the oral and documentary evidence of the petitioner. Hence, I answer the issue in affirmative.
ISSUE NO.2: The petitioner is claiming compensation of Rs.10,45,000/- from the respondents for the injuries caused to him in the accident. The respondent no.2 has contended that the compensation claimed by the petitioner is excessive, exorbitant and exaggerated.
PW-1:xxxxxxxxxxxxxxx has deposed as per his pleading. There is no evidence by the respondent no.2 to counter the evidence of PW-
1. Denials extracted from PW-1 are not sufficient to discard his evidence. PW-2:xxxxx has supported the version of PW-1 and stated that the petitioner is suffering from permanent disability of 51.1% to right leg and of 25.55% to whole body. In cross examination, PW-2 has stated that fractures of the petitioner are united with implants in situ, that the petitioner has to undergo another surgery for removal of implants. Removal of implants will improve the mobility. Hence, I am of the opinion that whole body disability of the petitioner will be 1/3rd of the disability of his right lower limb. PW-2 has assessed the limb disability of the petitioner @51.1%. 1/3rd is of it is 17%. Hence, I hold that the petitioner is suffering from permanent disability of 13% to whole body.
There is corroboration to the evidence of PW-1 as to his age, occupation and income. His age is shown as police records and SCCH-14 29 MVC No.1630/2015 medical records as 19 years. Copy of driving licence is at Ex.P-14 which reveals that the petitioner is suffering from permanent disability of 17% to whole body. PW-2 has stated that the petitioner says that he is a sales man. The said oral and documentary evidence is sufficient to hold that the petitioner was aged 19 years and was a sales man on the date of accident. In the absence of positive evidence, I am inclined to assess the income of the petitioner @Rs.9,000/- p.m., His annual income comes to Rs.1,08,000/-.
The petitioner has sustained following injuries as per wound certificate and discharge summary:
xxxxxxxxxxx He was an inpatient for 5 days in Panacea hospital and underwent surgery. He is suffering from permanent disability of 17% to whole body. The disability of the petitioner may come in his way to do his occupation. He may not be able to do overtime and to do heavy manual work. Thus, the disability caused to him is physical and occupational. There will be loss of earning and earning capacity to the extent of disability i.e., 13%. The petitioner is suffering from several difficulties which may persist in future resulting in loss of amenities. He has to live with disability through out his life. He has to undergo two more surgeries for removal of implants. Due to accident, the petitioner might not have attended to his work for about 4 months and might have lost income for 4 months. He might have incurred expenses towards nourishment, conveyance and attendant charges apart from medical expenses. The petitioner has produced medical bills for Rs.1,84,624/- which are marked as Ex.P-11 and are supported by prescriptions at Ex.P-10. There is nothing on record to disbelieve the said bills. Cost of future surgery can be assessed notionally on the basis of primary medical bills. Hence, I award just and reasonable compensation as under:
xxxxxxxxxxxxxxxx The petitioner is further entitled for interest @9% p.a., from the date of petition till the date of payment.
The respondents are the owner and insurer of car bearing no.xxxxxxxxxxxxxx. The petitioner has proved that the accident has occurred due to rash and negligent riding of the driver of said vehicle.SCCH-14 30 MVC No.1630/2015
Hence, the respondents are jointly and severally liable to pay compensation and interest to the petitioners as stated above. The respondent no.2 has denied his liability to compensate the petitioner on the ground of violation of policy conditions by the respondent no.1, but failed to prove it. As per the evidence on record, the policy was in force on the date of accident. There is nothing to rebut the same. Hence, the respondent no.2 is liable to indemnify the respondent no.1 and to compensate the petitioners. Consequently, I answer the issue as above.