Bangalore District Court
Sri.Puneeth.M vs Rudresh.H on 2 January, 2023
KABC020208592021
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 2nd day of January2023
MVC No.3361/2021
PETITIONER: Sri.Puneeth.M,
Aged about 28 years,
S/o Mahadeva D.P.
R/at # 49, LIG,
8th 'A' Cross, 2nd Stage,
Kengeri Upanagara,
Hoysala Circle,
Kengeri
Bengaluru South,
Bengaluru560 060.
(By Sri.RK.,Adv.,)
V/s
RESPONDENTS: 1. Rudresh.H,
Major,
SCCH4 2 MVC No.3361/2021
S/o Honnagalaiah,
Kariyappana Doddi,
(Kaniyappana Doodi),
Halasimarada Doddi,
BidadiMudwadi Road,
Bidadi Hobli,
Ramanagara Taluk and
District,
(Exparte)
2. The New India Assurance
Company Ltd.,
Regional Office, T.P.Hub,
#9/2, Mahalakshmi Chambers,
M.G.Road, Bengaluru560 001.
(By Sri.GSM.,Adv.,)
JUDGMENT
The petitioner has filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident that occurred on 24.07.2021.
2. The petition averments in brief are as under:
On 24.07.2021 at about 11.15 p.m., the petitioner was proceeding as a pillion rider on the Honda Shine motor cycle bearing Reg.No.KA41EK0322, keeping to SCCH4 3 MVC No.3361/2021 the left side of MysoreBengaluru, NH275 road, one Shashikumar was riding the motor cycle. When they reached near Kadumane Cross, Bidadi Hobli, Ramanagara Taluk and District, at that time, a Eicher Terra Tipper Lorry bearing Reg.No.KA42A2723 driven by its driver at high speed in a rash and negligent manner without following any traffic rules and regulations so as to endanger human life and property, all of a sudden came in the same direction from back side and dashed against the hind portion of the motor cycle. Due to the impact, the rider and pillion rider of the motor cycle fell down on the left side of the vehicle and the petitioner fell down on the right side of the vehicle and wheel of the tipper lorry ran over the both legs of the petitioner thereby petitioner has sustained grievous injuries.
Immediately after the accident, he was shifted to Rajajrajeshwari Hospital, Bengaluru wherein first aid SCCH4 4 MVC No.3361/2021 treatment was taken and then shifted him to BGS Global Hospital, Bengaluru wherein he was admitted as an inpatient and he has spent amount Rs.9,75,000/ towards medicine, nourishment, transportation and conveyance etc.,. Further contended that, due to the amputation of both legs, the petitioner became physically handicapped person, he has to be confined to bed and wheel chair for the rest of his life and he has required one attendant for his daily routine activities he has also lost his marriage prospect.
Prior to the accident, petitioner was very hale and healthy and he was working as Medical Sales Representative at Aristo Pharmaceuticals Private Limited., Bengaluru and he was earning a salary of Rs.25,000/ and incentives of Rs.15,000/ totally Rs.40,000/ per month. Due to the accidental injuries petitioner is not SCCH4 5 MVC No.3361/2021 able to continue his work and is under complete bed rest and he is suffering from permanent disability.
The respondent No.1 and 2 are the owner and insurer of the offending vehicle, they are jointly severally liable to pay the compensation to the petitioner. Hence, prays to award compensation of Rs.2,50,00,000/ with interest.
3. After service of notices the respondent No.1 is placed as exparte. The respondent No.2 has entered appearance through its advocate and filed its objection statement contending that, this respondent has issued the commercial vehicle package policy was valid in respect of Tipper bearing Reg.No.KA42A2723 and the liability if any is subjected to terms and conditions of the policy. Further contended that, the owner of the vehicle knowingly and willfully handed over the above to a person who was not having the valid and effective driving license.
SCCH4 6 MVC No.3361/2021
The Respondent further contended that, the motor
cycle bearing Reg.No. KA41EK0322 at the time of the accident with 2 pillions without wearing the helmet without maintaining the distance in a zig zag manner without following the traffic rules caused the accident by dashing the tipper lorry. Further denied the age, avocation and income of the petitioner. The owner and insurer of the Motor Cycle No.KA41EK3022 are also the necessary parties to the claim petition. The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, the respondent No.1 prays to dismiss the petition with cost.
4. On the basis of the rival contention, the following fallowing issues arise for my consideration:
1. Whether the petitioner proves that, he has sustained grievous injuries due to the actionable negligent driving of Tipper lorry bearing Reg.No.KA42 A2723 by its driver, in RTA took place SCCH4 7 MVC No.3361/2021 on 24.07.2021 at 11.15 p.m., on MysoreBengaluru, NH275 Road?
2. Whether Respondent no.2 prove that the driver of Tipper Lorry bear ing Reg.No.KA42A2723 drove the same without holding DL?
3. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
4. What order or award?
5. In order to prove the claim petition, the petitioner is examined as P.W.1 and got marked the documents at Ex.P.1 to 17. Further, three witnesses have examined as PW.2 to 4, through them got marked documents at Ex.P.18 to 28. The respondent No.2 has examined its official as RW.1, through him got marked documents at Ex.R.1 to 6.
6. I have heard the counsel for both the parties.
7. My findings on the above issues are as under.
Issue No.1 : In the affirmative;
Issue No.2 : In the Negative;
SCCH4 8 MVC No.3361/2021
Issue No.2 : Partly in the affirmative,
Issue No.3 : As per the final orders
for the following:
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the petitioner has filed his affidavit in lieu of chiefexamination which is considered as P.W.1. In support of his case, he has produced true copies of FIR, complaint, spot mahazar, notice issued to respondent No.1 and reply issued by him, IMV report, wound certificate and charge sheet. All these documents are marked under Ex.P.1 to P.7. As per these documents, Bidadi police have registered FIR against Tipper Lorry bearing Reg.No.KA42A2723 based on the complaint lodged by one Shashikumar who is the friend of the petitioner. The complaint is lodged on 25.07.2021. As per the complaint the complainant was riding the motor cycle bearing Reg.No.KA41EK0322 along with two SCCH4 9 MVC No.3361/2021 pillion riders namely Puneeth.M and Puneeth.S.M. when they were proceeding on MysoreBengaluru Road, at about 11.15 p.m near Kadumane Cross the driver of the Tipper lorry bearing Reg.No.KA42A2723 came from backside in a rash and negligent manner and hit the motor cycle wherein the petitioner and complainant were proceeding. Due which both of them fell down and sustained injury.
9. Upon receiving the complaint the police have registered FIR against the driver of the Tipper Lorry bearing Reg.No.KA42A2723, thereafter the police have visited the place of the accident and drawn spot mahazar.
As noted in the spot mahazar, the accident is taken place at a distance of 8 feet from western side of the road, totally measuring 30 feet width. This fact goes to show that, the petitioner was proceeding on its proper side of the road.
SCCH4 10 MVC No.3361/2021
10. The police during the course of investigation have issued notice to the respondent No.1 to furnish the documents in respect of his tipper lorry and also sought the name of the person who was driving the same as on the date of the accident. After receipt of notice the respondent No.1 has issued reply stating that he himself is the RC owner of the tipper lorry No.KA42A2723 one Lavana Rajoor was driving the same as on the date of the accident. The damages caused to both the vehicles are also noted in the IMV report. As could be seen in the wound certificate the petitioner took treatment as on the date of the accident at BGS Global hospital and taken treatment.
11. The jurisdictional police after completion of the investigation have submitted charge sheet against one Lavana Rajoor for the offences punishable under Section 279, 337 and 338 of IPC. The copy of charge sheet is SCCH4 11 MVC No.3361/2021 marked at Ex.P.7. The allegation made in the charge sheet as in the line of complaint lodged to the police in respect of the accident.
12. The respondent No.1 is not contesting the claim petition. The respondent No.2 has filed written statement by denying the case of the petitioner but it has taken a defence that the entire negligence is on the part of the rider of the motor cycle bearing Reg.No.KA41 EK0322. But the respondent No.2 do not explain anything as to how the rider of the motor cycle is responsible for the accident.
13. During the course of crossexamination of the petitioner nothing has been elicited so as to disprove the case of the petitioner or to prove the negligence of the petitioner.
14. As against the evidence of petitioner,the respondent No.2 has examined one of its official by name SCCH4 12 MVC No.3361/2021 Bikram Singh Rana, who is working as Administrative Officer (Legal) as RW.1, though him authorization letter, issuance policy, wound certificate, MLC register extract, another wound certificate and copy of notice which was sent to R1 along with a postal receipt which are marked at Ex.R.1 to 6.
15. The RW.1 in his examination in chief has deposed that, the rider of the motor cycle bearing Reg.No. KA41EK0322, namely Shashikumar has ridden the bike under the influence of alcohol with the petitioner and another pillion rider Puneeth in a zigzag manner without control over the bike and also without wearing the helmet and caused the accident. This defence is not proved by the respondent. Mere taking of a defence itself does not amount to proof. In the cross examination of petitioner nothing worth has been elicited so as to disprove the case of the petitioner.
SCCH4 13 MVC No.3361/2021
16. The learned counsel for petitioner has relied on reportable judgment in Civil Appeal No. 79/2020 in the case of Mohammed Siddiqe and another V/s National Insurance Company and others, wherein it has been held that 'in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injury sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, his clearly unjustified. In view of this citation no contributory negligence can be attributed to petitioner. Hence the contention of respondent is not acceptable.
17. In the claim petition like the present one strict proof is not necessary but preponderance of probabilities is sufficient. All the materials available on record leading to show that, petitioner has sustained injuries in the SCCH4 14 MVC No.3361/2021 accident took place on 24.07.2021. There is no reasons to discard the evidence of petitioner. Accordingly, I answer issue No.1 in the affirmative.
ISSUE NO.2:
18. The respondent No.2 has taken up a defence that driver of the offending vehicle did not posses the valid and effective driving license. But this fact is not proved by 2nd respondent. Hence, I answer issue No.2 in the negative.
ISSUE NO.3:
19. As already held herein above, the petitioner has proved that he has sustained injuries in RTA which is caused by the vehicle of respondent No.1. Hence, the petitioner is entitle for compensation. Now the quantum of compensation is to be ascertained on different heads.
SCCH4 15 MVC No.3361/2021 To prove the nature of his injuries the petitioner has examined MRO at BGS Global Hospital, Kengeri, Bengaluru, has examined as PW.2, through him authorization letter, MLC register extract, in patient case file, xray films 3 in nos and CT scan films 12 in nos which are marked under Ex.P.18 to 22. These documents shows that petitioner has taken treatment in BGS Global hospital, Bengaluru.
The petitioner has also examined Dr.S.A.Somashekara, who is working as Orthopedic Surgeon at Bowring and Lady Curzon Hospital,
Bengaluru, has examined as PW.3, through him OPD record cum disability certificate and recent xray which are marked under Ex.P.23 and 24. As per the evidence of PW2, the petitioner has sustained severe crush injury of distal thigh and proximal leg with typeIIIC open fracture (Lt) Proximal Tibia and Fibula (near total traumatic SCCH4 16 MVC No.3361/2021 amputation of knee), severe crush injury of (Rt) ankle and foot with total traumatic amputation of (Rt) forefoot. Further PW.3 deposed that, petitioner has sustained right side below knee amputee (upper third), stump measuring around 15 cms 70% and left sided above knee amputte (lower third) stump measures around 25 cms at 80% and whole body disability at 100%. the discharge summary also supports that both lower limbs are imputed. So, the disability assessed by PW3. has to be accepted.
According to the evidence of PW.3 the petitioner needs an assistant and also change of prosthesis every 510 years owing to wear and tear.
According to the petitioner he was Medical Sales Representative at Aristo Pharmaceuticals Limited, Bengaluru and he was earning Rs.40,000/ per month. In this regard the petitioner has produced employment ID SCCH4 17 MVC No.3361/2021 card, appointment letter, salary slips 5 in nos, statement of bank account and reliving letter issued through Email which are marked at Ex.P10 to 13 and 16.
Further, the petitioner has also examined one A.Prasad Nair, Branch Manager, Aristo Pharmaceuticals Pvt., Ltd., has examined as PW.4, through him covering letter, copy employment ID, copy attendance register and copy of salary details in respect of petitioner which are marked at Ex.P.25 to 28. The documents and oral evidence of PW.4 proved that petitioner was getting the salary of Rs.20,168/ per month, if professional tax of Rs.200/ is deducted his net income of Rs.19,968/. As per the documents, after the accident the petitioner is relived from the service.
20. As per the medical bills produced at Ex.P14 and Ex.P.17, the petitioner has spent Rs.14,10,648/. plus Rs.73,632/, totally he has spent Rs.14,84,280/.
SCCH4 18 MVC No.3361/2021 This medical bills are not disproved. So petitioner is entitled for the same.
21. As mentioned in petition as on the date of accident the age of petitioner was 28 years. In this regard the petitioner has Produced Aadhar card marked at Ex.P.8, wherein the date of birth of the petitioner mentioned as 30.01.1993, the accident was occurred on 24.07.2021. So, as on the date of the accident, the petitioner was aged about 28 years.
22. As per Sarala Verma's case, the proper multiplier applicable to the age of petitioner is '17'. Hence, I inclined to award future loss of income at Rs. 19,968/ X 12 X 17 X 100% =Rs.40,73,472/ which is the total loss of future income.
23. I intend to refer a authority in MFA No.6423/2014 (MV1) and MFA No.1369/2015 (MVD), in the case of M/s. Oriental Insurance Company Ltd SCCH4 19 MVC No.3361/2021 Vs. Asif Ali Sayani and another. As per this decision the disability of the claimant was 100%. Hence, the Hon'ble High court of Karnataka, by relying several decisions of the Honb'le Supreme Court, has granted the total compensation of Rs.76,58,862/ on the several heads.
24. In the present case also, the petitioner has suffered 100% disability. Hence, by applying the citation referred above, it is just and necessary to award the compensation to the petitioner as follows;
1. Loss of future income Rs. 40,73,472/
2. The Attendant charge Rs. 10,20,000/ (Rs.5,000/ p.m., 12 X 17= 10,20,000).
3. Loss of amenities Rs. 2,00,000/
4. Expenses for prosthesis to wear Rs. 5,00,000/ and tear for life time
5. Conveyance charges Rs. 30,000/
6. Pain and sufferings Rs. 3,00,000/
7. Food nourishment, attendant Rs. 1,00,000/ SCCH4 20 MVC No.3361/2021 charges and loss of amenities
8. Medical bills Rs. 14,84,280/ Total Rs. 77,07,752/
25. Admittedly the respondent No.1 and 2 are the owner and insurer of the offending vehicle. Hence, the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 insurance company shall indemnify the compensation behalf of the respondent No.1 with interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.3:
26. For the foregoing reasons, I proceed to pass the following:
ORDER The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
SCCH4 21 MVC No.3361/2021 The petitioner is entitled for total compensation amount of Rs.77,07,752/ (Rupees Seventy Seven Lakhs Seven Thousand Seven Hundred and Fifty Two Only) with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 shall deposit the compensation amount within 60 days from the date of this order.
Out of total compensation awarded to the Petitioner, 50% of the same to be released in favour of petitioner through Epayment on his proper identification and remaining 50% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in his name.
Advocate fee is fixed at 1,500/.
Draw up award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 2nd day of January, 2023) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
SCCH4 22 MVC No.3361/2021
ANNEXURE
List of witnesses examined for petitioners:
PW.1 Sri.Puneeth.M PW.2 Stalin Christopher PW.3 Dr.S.A.Somashekara PW.4 Sri.A.Prasad Nair
List of documents marked on behalf of the petitioners:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of notice issued to 1st Respondent and reply
issued by him
Ex.P5 True copy of IMV Report
Ex.P6 True copy of Wound Certificate
Ex.P7 True copy of Charge Sheet
Ex.P8 Notarized copy of my Aadhar card
Ex.P9 Discharge Summary
Ex.P10 Notarized copy of Employment ID Card Ex.P11 Appointment Letter Ex.P12 Salary Slip 5 in nos.
Ex.P13 Statement of Bank Account Ex.P14 8 Medical Bills Ex.P15 Inpatient Receipts 11 in nos. Ex.P16 Relieving Letter issued through Email Ex.P17 2 Medical Bills Ex.P18 Authorization Letter Ex.P19 MLC Register Extract SCCH4 23 MVC No.3361/2021 Ex.P20 In patient Case File Ex.P21 Xray films 3 in nos.
Ex.P22 CTScan Films 12 in nos.
Ex.P23 OPD record cum disability certificate
Ex.P24 Recent xray
Ex.P25 Covering letter
Ex.P26 Notarized copy of my employment ID
Ex.P27 Certified copy attendance register
Ex.P28 Certified copy salary details in respect of petitioner
List of witnesses examined for Respondents:
RW.1 Sri.Bikram Singh Rana
List of documents marked on behalf of the
Respondents:
Ex.R1 Authorization Letter
Ex.R2 Insurance Policy
Ex.R3 wound certificate
Ex.R4 MLC register extract
Ex.R5 Another wound certificate
Ex.R6 Copy of notice which was sent to R1
along with a postal receipt
XVIII ADDL.JUDGE
Court of Small Causes & MACT.,
Bengaluru.