Bangalore District Court
K.Shavanth vs Bheemappa on 10 April, 2024
KABC020091552021
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES &, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU (S.C.C.H. - 1)
Dated this the 10th day of April, 2024
PRESENT: Smt. B.V. RENUKA, B.Sc., LL.B.,
Chief Judge
Member, Prl. M.A.C.T., Bengaluru.
M.V.C. No. 1370/2021
Petitioner: Mr.K.Shavanth,
S/o. M.R.Keshavan,
Aged about 32 years,
R/at No.120, 3rd Main Road,
HVR Layout,
Opposite Check post,
Magadi Main Road,
Bangalore North,
Bangalore -560 079.
(Represented by Smt.Shobha G. ,
Advocate)
-Vs-
Respondents: 1. Bhimappa Hallikeri,
S/o. Basappa,
R/at No.3/6,
Harohalli village,
Yelahanka Hobli,
Bangalore North,
Bangalore -560 064.
(Owner of the car bearing
Reg.No.KA-50-A-6006)
SCCH-1 2 MVC No.1370/2021
(Exparte)
2. United India Insurance Company
Limited,
S.B.L.T. Building,
Polytechnic Road,
Chikaballapura -563 125.
(Insurer of the car bearing
No.KA-50-A-6006 vide policy
No.0715023119P10-6986153
Valid from 05.09.2019 to 04.09.2020)
(Represented by Sri K.S.Rajan,
Advocate )
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of the Motor Vehicles Act claiming compensation of Rs.20,00,000/- along with interest from the respondents on account of the injuries sustained by him in the road traffic accident.
2. Briefly stated, the case of the petitioner is as follows:
That on 28.11.2019 at about 10.30 p.m., when the petitioner was riding his motorcycle bearing reg. No.KA-03- HS-5781 from Chalukya Hotel to Sparsh Hospital road and when he reached near LRDE junction, T.Chowdaiah road, SCCH-1 3 MVC No.1370/2021 Bengaluru, at that time the driver of car bearing registration No.KA-50-A-6006 came from behind with high speed and in a rash and negligent manner and dashed against the motorcycle of the petitioner. Due to the impact, the petitioner fell down and sustained grievous injuries. He took treatment at Mallige hospital, Bengaluru and Rajiv Gandhi hospital. A case was registered in Crime No.55/2019 against the driver of the car bearing registration No.KA-50-A-6006 at High Grounds Traffic Police Station. Hence, this petition for compensation.
3. In response to the notice of the petition, the respondent No.1 has not chosen to appear before the Court and he was placed exparte.
The respondent No.2 appeared before the Court through its advocate and filed written statement by denying the petition averments as false. The vehicle bearing No.KA- 50-A-6006 was not insured with the respondent No.2 and the policy was also not in force as on the date of accident. If at all the alleged accident had taken place, it is only due to the negligence on the part of the petitioner who was moving on the road negligently and dashed himself to some SCCH-1 4 MVC No.1370/2021 unknown vehicle and given false complaint against the driver of the vehicle belonging to the first respondent. The Police have not complied the mandatory requirements of Section 158(6) of M.V.Act. The compensation claimed is exorbitant and excessive. Hence, prays to dismiss the petition.
4. On the basis of the above pleadings of the parties, this Tribunal has framed the following Issues:
1. Whether the petitioner proves that due to rash and negligent driving of car bearing Reg.No.KA-50-A-6006 by its driver dashed to the petitioner who was riding two wheeler bearing reg.No.KA-03-HS-5781 and he sustained injuries in the accident that occurred on 28.11.2019?
2. Whether the respondent No.2 proves that the accident has occurred due to the negligent act on the part of the petitioner himself?
3. Whether the petitioner is entitled for compensation ? If so, what is the quantum of compensation and from whom?
4. What order?
5. On behalf of the petitioner, he examined himself as PW-1 and three witnesses are examined as PWs-2 to 4 and got marked Exhibits P.1 to P.30. The 2nd respondent has not led any evidence.SCCH-1 5 MVC No.1370/2021
6. Heard the arguments of both sides.
7. My findings on the above issues are as under:
Issue No.1 ... In the Affirmative, Issue No.2 ... In the Negative Issue No.3 ... Partly in affirmative, awarding compensation of Rs.2,50,000/-from the respondents No.1 and 2
Issue No.4 ... As per final order for the following:-
REASONS
8. Issue Nos.1 & 2: Since these issues involve common discussion, they are taken up together.
The petitioner in order to prove his case, has placed his oral evidence and documentary evidence as per Exs.P.1 to P.9, P.21, P.25(a) and P.30 such as FIR, complaint, charge sheet, spot sketch, spot panchanama, IMV report, notice under Sec.133 of M.V.Act, reply to the said notice, wound certificate, MLC extract and police intimations. PW.1 being the injured in his affidavit evidence has narrated the manner in which he met with an accident and accident was due to rash and negligent act on the part of the driver of the car bearing registration No.KA-50-A-6006. The first respondent being the owner of the said car has SCCH-1 6 MVC No.1370/2021 remained exparte. The second respondent has denied the accident and negligence aspect by contending that if the alleged accident has taken place, it is only due to the negligence on the part of the petitioner who was moving on the road negligently and who himself dashed his vehicle to some unknown vehicle, but given a false complaint against the driver of the car and there is delay of five days in lodging the complaint. Let us consider the evidence placed before the court to decide this issue.
9. As per PW.1, on 28.11.2019 at about 10.30 p.m., when he was riding his two wheeler bearing registration No.KA-03-HS-5781 from Chalukya hotel to Sparsh Hospital and when he reached near LRDE junction on T.Chowdaiah road, Bengaluru, at that time a car bearing registration No.KA-50-A-6006 came from behind with high speed and in a rash and negligent manner and dashed against his two wheeler and due to it, he sustained grievous injuries. PW.1 was cross-examined by the second respondent counsel wherein PW.1 has stated that, at the time of accident, car came from his behind and when he fell down, he had conscious and he had seen the SCCH-1 7 MVC No.1370/2021 registration number of the car at the time of accident. He admits that in the hospital records, the registration number of the vehicle involved in accident is not mentioned.
10. FIR and the complaint as per Exs.P.1 and P.2 disclose that on the basis of the complaint lodged by the petitioner, a criminal case was registered against the driver of the car bearing registration No.KA-5-A-6006. Accident occurred on 28.11.2019, but the complaint was lodged on 02.12.2019. Thus, there is delay of 4 days in lodging the complaint. In the complaint, the complainant/petitioner has specifically stated that as he was undergoing treatment in Mallige Hospital, Rajiv Gandhi Hospital and Sparsh Hospital, there was delay in lodging the complaint. The medical records produced by the petitioner disclose that the petitioner has taken first aid treatment in Mallige Hospital and in other two hospitals he was inpatient and has taken treatment. It is noticed that the police have visited Sparsh Hospital and recorded the statement of the petitioner and on the basis of the said SCCH-1 8 MVC No.1370/2021 statement/complaint, a criminal case was registered against the driver of the car.
11. Ex.P.21 is the police intimation issued by Rajiv Gandhi Hospital to the concerned police regarding admission of the petitioner to the said hospital with the history of RTA on 28.11.2019 near Chalukya Circle at about 10.30 p.m. Ex.P.30 is the police intimation issued to the concerned police, intimating about the admission of the petitioner to Sparsh Hospital for the treatment of accidental injuries. Ex.P.25(a) is the MLC register extract of Sparsh Hospital, wherein the history of RTA is shown as on 28.11.2019 at 10.30 p.m., between two wheeler versus car. All these documents clearly disclose the fact that the petitioner was undergoing treatment in Rajiv Gandhi Hospital and in Sparsh Hospital for the accidental injuries, was intimated to the concerned police, but the police have visited Sparsh Hospital only on 02.12.2019 and have recorded the statement of the petitioner. Such being the case, there is lapses on the part of the police in visiting the hospitals even after the receipt of the police intimations SCCH-1 9 MVC No.1370/2021 from the concerned hospitals. As such, merely because there was delay of four days in lodging the complaint, the case of the petitioner cannot be doubted when the reason assigned by him for the delay has been supported by medical records. Even the false implication of the car cannot be inferred merely because there was delay of four days in lodging the complaint.
12. Spot sketch and spot panchanama as per Exs.P.4 and P.5 reveals the state of affairs at the accident spot. As per Exs.P.4 and P.5, the place of accident is in the middle of LRDE junction and it leads towards Raj Bhavan from High Grounds junction. Ex.P.4 discloses that the accident has occurred in the middle of LRDE junction. PW.1 in his cross-examination has admitted that the spot of accident is the junction where four roads are joining and the accident took place in the middle of the road. Merely because accident has occurred in the middle of the road, contributory negligence on the part of the petitioner cannot be inferred as argued by the second respondent counsel, since as per PW.1, the car has hit his two wheeler from SCCH-1 10 MVC No.1370/2021 behind, resulting in accident. In Ex.P.4, it is shown that the petitioner has proceeded on his motorcycle to some distance in LRDE junction and at that time, the driver of the car who was on the left side of the road from the side of High Grounds junction, has suddenly taken it towards right side and has hit the motorcycle of the petitioner from behind resulting in accident. Thus, Ex.P.4 clearly establishes that on account of the driver of the car in taking his car from left side to right side and hitting the motorcycle on its back side, this accident has occurred.
13. IMV report-Ex.P.6 discloses that the front and left side portion of the motorcycle and front right side portion of the car were damaged in accident. PW.1 in his cross- examination has deposed that the right side of the car dashed against the left side of his two wheeler. As such, it can be said that as the right side of the car hit the left side of the two wheeler from back side, the damages mentioned in Ex.P.6 were caused to both the vehicles.
14. Exs.P.7 and P.8 which are the notice under Sec.133 of M.V.Act and reply to the said notice disclose SCCH-1 11 MVC No.1370/2021 that the owner of the car i.e., the first respondent has given details of the documents of his car along with the details of the driver of the car who was driving it as on the date of accident. Wound Certificate-Ex.P.9 discloses that the petitioner has sustained grievous injuries in accident. Chargesheet-Ex.P.3 discloses that the police after detailed investigation have filed the chargesheet against the first respondent who was the owner-cum-driver of the car. This chargesheet was not challenged by the driver of the car. Even the second respondent has not chosen to summon the driver of the car in order to disprove the case of the petitioner. As such, the entire contention taken by the second respondent has remained unproved. The conduct of the driver of the car in not challenging the chargesheet itself is sufficient to draw an adverse inference against him that as the accident took place due to his negligence, he has remained silent. The entire evidence placed by the petitioner remained unrebutted in the absence of any cogent evidence from the second respondent. Hence, by considering all these aspects, I am of the opinion that the petitioner has proved that he met with an accident on SCCH-1 12 MVC No.1370/2021 account of rash and negligent act on the part of the driver of the car bearing registration No.KA-50-A-6006, but the second respondent has failed to prove that the accident occurred due to the negligent act on the part of the petitioner himself. Accordingly, I answer Issue No.1 in the Affirmative and Issue No.2 in the Negative.
15. ISSUE No.3:
(a). Pain and Agony:
Wound Certificate-Ex.P.9 discloses that the petitioner has sustained 1) fracture of left clavicle and 2) fracture of left ribs 4th, 6th and 8th. As per the opinion of the doctor, the said injuries are grievous in nature. Discharge Summaries at Exs.P.10 to P.12 and Inpatient records at Ex.P.23, P.25 and P.29 disclose that the petitioner has taken treatment in Rajiv Gandhi Hospital from 03.12.2019 to 10.12.2019, taken treatment in Sparsh Hospital from 29.11.2019 to 02.12.2019 and also taken treatment in Sparsh Hospital on 19.02.2020 as an inpatient and he has undergone surgery at Sparsh Hospital. Outpatient records at Exs.P.13 and P.22 disclose that the petitioner has taken SCCH-1 13 MVC No.1370/2021 treatment for the accidental injuries as an outpatient in Mallige Hospital and in Rajiv Gandhi Hospital. X-rays and CT scan film as per Exs.P.15, P.16, P.23(a) and P.26 confirms the sustaining of fractures by the petitioner in accident. The injuries sustained by the petitioner requires minimum three months treatment. During the treatment period, the petitioner has suffered lot of pain and agony.
So, taking into account the nature of the injuries sustained by the petitioner and number of days of his treatment in the hospital, I deem it just and proper to award compensation of Rs.60,000/- under this head.
(b). Medical Expenses (including conveyance, attendant charges and extra nourishment):
PW-1 has deposed that, he has spent more than Rs.1,50,000/- towards medical expenses. In support of his evidence, he has produced medical bills as per Ex.P.14. Ex.P.14 is amounting to Rs.92,437/-. The final inpatient bills at Ex.P.14(1 & 2) disclose that the petitioner has paid the said amounts towards hospital charges when he was inpatient in the said hospitals. As such, the petitioner is entitled for the said amounts. Some of the medical bills SCCH-1 14 MVC No.1370/2021 are issued by Sparsh Hospital towards X-rays, CT scan, lab tests etc. The petitioner is entitled for those amounts. Some of the medical bills are pharmacy bills which do not contain the signature of the person who has issued them and the seal of the shop. As such, it is not possible to believe that the petitioner has spent the amount claimed under pharmacy bills towards medicines. However, by considering the nature of the injuries sustained by the petitioner and type of treatment undergone by the petitioner, it can be said that the petitioner has spent some amount towards medicines, conveyance, nourishment and attendant charges. Hence, I deem it just and proper to award compensation of Rs.1,10,000/- under this head.
(c) Loss of income during the treatment period:
PW-1 has deposed that, prior to the accident he was doing own business by running a medical stores at Vinayaka Layout, Bengaluru and he was earning Rs.60,000/- per month, but due to the accident, he was unable to work and he has lost his income. In order to prove his avocation and the income, PW.1 has produced SCCH-1 15 MVC No.1370/2021 the IT Returns for the Assessment years 2018-19, 2019-20, 2020-21, 2021-22 at Ex.P.18 and Copy of the Licence at Ex.P.19. Ex.P.19 discloses that the petitioner was the Proprietor of Total Care Pharma and he was running a medical store by taking licence. Ex.P.18 discloses that the petitioner was having income from rent and also from his business. Accident occurred in the year 2019. As such, IT returns for the year 2019-20 has to be taken into consideration, wherein it is mentioned that the petitioner has received rent of Rs.4,20,000/- and income from profession at Rs.7,30,452/-. That means, even during his treatment period, there was no loss of income to the petitioner, since he has received the income from his profession. As such, no amount is awarded under this head.
(d) Future loss of earning capacity:
PW.1 has deposed that due to the accidental injuries, he is suffering from disabilities such as he cannot walk, stand for long time due to weakness, cannot lift any weight, he has no strength in his left hand and he cannot do any difficult work and he has become very weak and he SCCH-1 16 MVC No.1370/2021 is facing lot of financial problems and his life has become dark and miserable. In order to prove the disability, the petitioner has examined the doctor as PW.4. PW.4 has deposed about the line of treatment taken by the petitioner for the accidental injuries in the hospitals. PW.4 has deposed that the petitioner suffers from permanent residual physical disability of about 23.73% to the left shoulder girdle and left Hemethorax which is about 7.91% (8%) to the whole body. Whether the disability assessed by PW.4 amounts to functional disability is the point to be considered now.
From the versions of PW.4 in the cross-examination, it is evident that PW.4 has not treated the petitioner, but he has assessed the disability only on the basis of the discharge summaries and also on the physical examination of the petitioner and according to him, he has not mentioned the functional disability or the occupational disability in his evidence. PW.1 in his cross-examination has categorically admitted that even now he is running the medical stores. PW.4 has deposed that the petitioner is the Proprietor of a medical shop and with difficulty he can do SCCH-1 17 MVC No.1370/2021 his work in that shop. From these versions of PWs 1 and 4, it can be said that the petitioner is running medical stores and even now he is getting income from his business. This fact is also evident from the income tax returns produced by the petitioner, since he is getting the income from his profession and also from rents. As such, the disability stated by PW.4 will not amount to functional disability. Hence, no amount is awarded under this head.
(e) Towards unhappiness and loss of amenities:
PW.1 has deposed that due to the accidental injuries, he is suffering from disabilities such as he cannot walk, stand for long time due to weakness, cannot lift any weight, he has no strength in his left hand and he cannot do any difficult work and he has become very weak and he is facing lot of financial problems and his life has become dark and miserable. PW-4 has deposed that there is loss of muscle strength around left shoulder region and the petitioner has difficulty to do some acts and the petitioner suffers from disability at 23.73% to the left shoulder clavicle and left hemethorax which is about 7.9%(8%) to the whole body and the fracture of 5th and 6th ribs are SCCH-1 18 MVC No.1370/2021 mal-united. These difficulties stated by PWs 1 and 4 will definitely cause unhappiness to the petitioner to some extent while doing his avocation and also while doing normal activities. Hence, I deem it just and proper to award compensation of Rs.80,000/- under this head of unhappiness and loss of amenities.
15. In view of the reasons stated above, in all the petitioner is entitled to the compensation as under:
Sl. Head of Compensation Amount
No.
a. Pain and Agony Rs. 60,000-00
b. Medical Expenses (conveyance, Rs. 1,10,000-00
nourishment and attendant
charges)
c. Unhappiness and loss of Rs. 80,000-00
amenities
TOTAL Rs. 2,50,000-00
Thus, the petitioner is entitled for compensation of a sum of Rs.2,50,000/- with interest at the rate of 6% p.a. from the date of the petition till deposit in Court.
16. So far as the liability is concerned, according to the petitioner, the first respondent is the owner and the SCCH-1 19 MVC No.1370/2021 second respondent is the insurer of the car bearing reg.
No.KA-50-A-6006. The first respondent has remained exparte. The second respondent in the written statement has denied about the issuance of policy in favour of the first respondent relating to the car bearing registration No.KA-50-A-6006 and also the Insurance being in force at the time of alleged accident. But, the second respondent has not led any evidence to prove that it has not issued the Insurance Policy to the first respondent with respect to the car in question. On the other hand, the petitioner has produced copy of Insurance Policy standing in the name of the first respondent relating to the car in question, which was valid from 05.09.2019 to 04.09.2020. Accident occurred on 28.11.2019. Hence, it can be said that the policy was valid as on the date of accident. As such, I am of the opinion that the respondents No.1 and 2 are jointly and severally liable to pay the compensation of Rs.2,50,000/- to the petitioner along with interest at 6% p.a. from the date of the petition till deposit in Court. Accordingly, I answer issue No.3 partly in the affirmative. SCCH-1 20 MVC No.1370/2021
17. Issue No.4 : In view of my findings on the issues No.1 to 3 and for the reasons stated therein , I proceed to pass the following: -
ORDER The claim petition filed by the petitioner is allowed in part with costs against the respondents No.1 and 2, awarding compensation of Rs.2,50,000/- (Rupees Two lakhs and Fifty thousand only) with interest at 6% p.a., from the date of petition till the date of deposit in Court.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the respondent No.2, being the Insurance Company is directed to deposit the compensation amount in Court within 3 months from the date of this order.
After deposit of the compensation amount, 50% with proportionate interest shall be deposited in the name of the petitioner in any of the nationalized or scheduled bank for a period of 3 years. Remaining 50% with proportionate interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/- . SCCH-1 21 MVC No.1370/2021 Draw an Award accordingly.
(Dictated to the Stenographer Gr.I, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 10th day of April, 2024.) (Smt.B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bengaluru.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : K. Shavanth P.W.2 : B.B.Harini P.W.3 : M. Kotresh P.W.4 : Dr.S.Ramachandra Documents marked on behalf of the petitioners:
Ex.P-1 Certified copy of FIR Ex.P-2 Certified copy of complaint Ex.P.3 Certified copy of Chargesheet Ex.P-4 Certified copy of Spot Sketch Ex.P-5 Certified copy of Spot Panchanama Ex.P-6 Certified copy of IMV Report Ex.P-7 Notice u/sec.133 of MV Act Ex.P-8 Reply notice Ex.P-9 Certified copy of Wound Certificate Ex.P-10 to Discharge Summaries (3) P-12 Ex.P-13 Out patient records (3) Ex.P-14 Medical Bills (13) Ex.P-15 X-rays (5) Ex.P-16 CT Scan film Ex.P-17 Notarized copy of Aadhaar Card Ex.P-18 IT Returns SCCH-1 22 MVC No.1370/2021 Ex.P-19 Notarized copy of License Ex.P-20 Authorization Letter Ex.P-21 Police intimation Ex.P-22 Outpatient record Ex.P-23 Inpatient record Ex.P-23(a) X-ray films(4) Ex.P-24 Authorization letter Ex.P-25 Inpatient record Ex.P-25(a) MLC extract Ex.P-26 X-rays (3) Ex.P-27 OPD Card Ex.P-28 X-rays Ex.P-29 Inpatient record Ex.P-30 Police intimation
Witnesses examined on behalf of the respondents :
-Nil-
Documents marked on behalf of the respondents:
-Nil-
(Smt.B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bengaluru.