Bangalore District Court
Sri.A.R.Thilak vs The New India Assurance on 20 April, 2023
KABC020004192021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
DATED THIS THE 20th DAY OF APRIL 2023
(SCCH25)
Present:Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXIII Additional Small Causes Judge,
Bengaluru.
MVC No.211/2021
PETITIONER: Sri.A.R.Thilak
S/o Ramesh,
Age: 04 years,
R/a: Aadhihalli Village,
Navile Post, Bagur Hobli,
Channarayapatna Taluk,
Hasan Dist. 573 131.
Petitioner being minor
Represented by his father
Ramesh the natural guardian.
(By Sri.H.R.Jayaram,
Advocate.)
V/S
RESPONDENTS: 1. The New India Assurance
Co. Ltd.,
R/o 2B, Unity Building,
2 MVC 211/2021
SCCH-25
Annexe mission road,
Bangalore - 01.
Policy issued by its branch
office at No.1215,
Nuranga House, 231,
K.G.Marg,
New Delhi - 110 001.
Policy No.98000031190108263247 date
of validity from 13.10.2019 to 12.10.2020
Omini car bearing No.KA50M8624
(By Sri.Dinesh Nayak,
Advocate.)
2. Mr.Umesh H.K.
S/o Krishne Gowda,
Major,
R/a:No.20,
Hanuman Layout,
Thindlu, Vidyaranyapura,
Bangalore - 560 097.
(Exparte)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act., seeking compensation for the injuries sustained by him in a road accident dated 17.03.2020. 3 MVC 211/2021
SCCH-25
2. The case of the Petitioner in brief is that, On 17.03.2020 at about 01.00am the petitioner was infront of the house Ganapa Bairava Building, Parvathamma Layout Tindlu, at that time a Omini Car bearing Reg.No.KA50M 8624 which was coming from Tindlu side at a very high speed in a rash and negligently dashed the petitioner, due to which he fell down and sustained grievous injuries and immediately he was shifted to Med Star Hospital, wherein treated as an inpatient and diagnosed that he was sustained grievous injuries like displaced fracture left Tibia Mid shaft, Greenstick fracture left fibula mid shaft and other injuries to the body. So far he has spent Rs.2,00,000/ towards medical and nourishment expenses and he has to undertake further treatment and has to incur future medical expenses. Due to accidental injuries, he is not able to lead a normal life as he was doing and suffered from permanent disability. The Hebbala police has registered a case against the driver of the offending vehicle. Therefore, the 1 st respondent is the 4 MVC 211/2021 SCCH-25 insurer and the 2nd respondent is the owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
3. In response to notice issued by this tribunal, the Respondent No.1 has appeared and filed written statement. Even after service of notice the respondent No.2 remained absent and hence placed exparte.
4. The Respondent No.1 in the written statement have denied the case of the petitioner as false and submitted that the alleged accident took place solely due to the negligence of petitioner himself who was not cared by his parents and was playing in an busy traffic main road as his parents left him at Parvathamma Layout, Tindlu, where vehicles are moving frequently in every minutes and the said child without taking care and negligence of parents. Further submitted that the said accident is not at all happened due to the rash and negligent driving of the Maruthi Omni car 5 MVC 211/2021 SCCH-25 bearing No:KA50M8624 as he was driving the car by observing all the traffic rules and regulations and was driving carefully, cautiously on the correct side of the road but the accident occurred due to negligence of the minor petitioner. They have admitted the issuance of policy to the offending vehicle but their liability if any is subject to its terms and conditions and production of necessary documents by the insured. Therefore, prayed for dismissal of petition against them.
5. On the above rival contentions of the parties, this court has framed the following issues:
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent driving by the driver of Car bearing Reg.No.KA50M8624 and in the said accident petitioner sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
6 MVC 211/2021
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6. The Petitioner in order to prove his case, he has examined his father Mr.Ramesh as PW.1 and marked 10 documents as per Exs.P.1 to P.10. Dr.Aditya examined as PW.2 and produced 1 document as per Ex.P.11. Mr.Ashok Kulal - MRD at Med Star Hospital, Bangalore, examined as PW.3 and produced 3 documents as per Exs.P.12 to P.14. On the other side the respondents did not examine any witness nor produced any documents on their behalf.
7. Heard the arguments of the learned counsel for both the parties and perused the materials on record. The respondent No.1 has filed written arguments.
8. On hearing both sides and perusal of the evidence on record this Tribunal answers the above issues as follows: Issue No.1: In the affirmative, Issue No.2: In the affirmative, Issue No.3: As per the final order, for the following: 7 MVC 211/2021 SCCH-25 REASONS
9. Issue No.1: The Petitioner in order to prove his case has got examined his father as PW.1 and produced 5 documents as per Exs.P.1 to P.5. The PW.1 specifically deposed that the accident was occurred due to the actionable negligence on the part of the driver of the Car bearing Reg.No.KA50M 8624 who driven it with high speed and in a rash and negligent manner and dashed against to his son who was infront of the house Ganapa Bhairava Building, Parvathamma Layout, Tindlu and caused the accident. The Respondent No.1 has denied that the accident was occurred due to the rash and negligent driving of the offending vehicle and contended that there was negligence on the part of the petitioner and his parents.
10. In the crossexamination of PW.1 it is elicited that in the said road of accident usually the vehicles will ply and 8 MVC 211/2021 SCCH-25 said fact was within the knowledge of his sister and her husband. Except this nothing worth is elicited to disbelieve the version of the petitioner with regard to manner of accident. No contrary admission brought out in the cross examination in support of the defence of the respondent No.1 that there was negligence on the part of the parents/guardian of the petitioner. The respondent No.1 has not lead any evidence to prove their defendant.
11. The counsel for the respondent No.1 contended that contributory negligence be taken on the part of the minor petitioner and his parents. As per evidence on record the minor petitioner was not alongwith either his parents or his guardian. Moreover contributory negligence cannot be fixed on the minor child aged about 4 years. In a decision in Sundara Shetty Vs. Sanjeeva Rao reported in 1982 ACJ 129, our Hon'ble H.C. has considered as to whether the children of tender years can be imputed with the contributory 9 MVC 211/2021 SCCH-25 negligence. In paragraph 28 of the judgment the Court has held as follows;
"................ children of tender years cannot even be imputed with contributory negligence. They have not attained that age of discretion and what generally the adults can understand as rash or negligent acts cannot even be imputed to them as they are not in a position to understand the consequences of their acts. Many dangers which are open and obvious to the adults may be concealed and secret traps fro the children."
Further, the Hon'ble Apex court in The Municipal Corporation of Greater Bombay V. Shri Laxman Iyer, reported in 2004(1) MLJ 82 (SC), has held in paragraph 6 is as follows;
"Negligence is ommission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and the duty are strictly correlative. Negligence means either subjectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no 10 MVC 211/2021 SCCH-25 mathematically exact formula can be said just and down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an action would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person"
12. The ratio laid down in the above decisions are aptly applicable to the present case and this Tribunal is of the view that no contributory negligence can be attributed to the minor petitioner of this case and the driver of the car did not take precaution but acted in rash or negligent manner which lead to accident. Further, the Petitioner apart from his oral evidence has produced the documents such as FIR and FIS in Cr.No.057/2020 of Hebbala Police, charge sheet, 11 MVC 211/2021 SCCH-25 spot sketch and spot mahazar as per Exs.P.1 to P.5 and they are public documents which have got presumptive value under law. Ex.P.3 which is the copy of charge sheet filed in Cr.No.057/2020 clearly discloses that the investigation officer has filed chargesheet after detail investigation holding that the driver of the offending Car has driven it in a rash and negligent manner endangering to human life and dashed to the petitioner and caused the accident. Under these circumstances, relying upon the oral evidence coupled with documents, this court is of the opinion that the accident occurred due to the rash or negligent driving of the driver of the Car bearing No.KA50M8624 and same has resulted in grievous injuries to the Petitioner. Accordingly, issue No.1 held in the affirmative.
13. Issue No.2: The Petitioner has further averred that, on account of accident, he has sustained grievous injuries and it has 12 MVC 211/2021 SCCH-25 caused him permanent disability and hence he is not able to lead normal life. The father of the Petitioner in this regard has entered into witness box and deposed that due to the accidental injuries, he is suffering from permanent disability. Apart from that, he has also produced the wound certificate as per Ex.P.6. As per Ex.P.6, the Petitioner has sustained Swelling with tenderness present over left leg which is grievous in nature. The Petitioner in order to substantiate that he is suffering from disability, has examined Dr.Aditya as PW.2 and produced one document as per Ex.P.11/xray. The PW.2 has deposed supporting the version of the Petitioner. The petitioner has also examined the MRD incharge at Med Star Hospital as PW.3 who has produced authorization letter, one IP case sheet and true copy of MLC extract and in his crossexamination nothing worth is elicited to disprove the said documents and no contrary evidence is lead by the respondent No.1 and from these 13 MVC 211/2021 SCCH-25 documents it is clear that the petitioner took treatment in the said hospital.
14. The PW.2 deposed in his chief examination that he examined a patient by name Thilak A.R. at Med Star Specialty hospital on 17.03.2020 who had come to their hospital with the history of RTA, on examination he had injuries (i) Displaced fracture left Tibia mid shaft, (ii) Greenstick fracture left fibula mid shaft both are grievous in nature, treatment was given, he was operated on 17.03.2020 with crif with tens and was discharged on 18.03.2020 with advice to take medicine and followup on regular basis. Recently he was again admitted to ARKA Hospital on 26.08.2021 and discharged on 28.08.2021, he underwent surgery for removal of implant in situ left leg (Tens). The PW.2 has further deposed that recently he was examined on 06.06.2022 for assessment of disability, he complained of Stiffness in knee and also difficulty to walk fast and also to do routine activities like climbing, squatting, etc., and he 14 MVC 211/2021 SCCH-25 find stiffness in his left leg knee, shortening of left limb by 1 cm and Xray shows fracture united and with these deformities he has assessed the disability of whole body by 8%. In the crossexamination of PW.2 it is brought out that he has treated the petitioner, after passing of time the Greenstick fracture will completely be get healed, they have conducted corrective surgery for displaced fracture left tibia midshaft but there may be chances of decrease in deformity or disability after removal of implant surgery due to growth disturbances, he only did implant removal surgery for the petitioner at Arka hospital and the fracture is united. Therefore, having regard to the nature of injuries, age of the Petitioner, duration of treatment, as the disability assessed by the PW.2 only physical disability it appears to be on higher side. Therefore, the functional disability of the Petitioner is considered as 6% to his whole body. While discussing issue No.1, this court has already come to the conclusion that, the accident was occurred due to the rash 15 MVC 211/2021 SCCH-25 and negligent act of the driver of the offending vehicle. Therefore, the petitioner entitled to get compensation.
Age of the Petitioner:
15. The Petitioner, in order to prove his age, he has produced wound certificate at Ex.P.6. As per the said document, his age is mentioned as 4 years. As such, as on the date of accident the age of the Petitioner is considered as 4 years.
Quantum of Income and quantum of compensation:
16. The Petitioner, as on the date of accident, admittedly was a minor, even though the petitioner has deposed that due to accidental injuries he is suffering from disabilities but same cannot be considered as earnings. Therefore, it is clear that the petitioner was not earning anything. As per the decision of Hon'ble supreme court reported in ILR 2014 Kar 4891 rendered in Master 16 MVC 211/2021 SCCH-25 Mallikarjun Vs Divisional Manager, National Insurance having regard to relevant factors, precedents and approach of various Hon'ble High Courts with regard to the compensation of the child victims, held that appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc., should be Rs.1,00,000/ disability up to 10%, if the disability is above 10% and up to 30% to whole body 3 lakhs: up to 60% 4 lakhs: up to 90% 5 lakhs and above 90%, it should be 6 lakhs. In the present case the Petitioner is suffering from disability to the tune of 6% and he was hospitalized for about 5 days. Therefore, the Petitioner is entitled for a sum of Rs.1,00,000/ under the head of pain and suffering already undergone and to be undergone in future including loss of comforts amenities on account of disability. The Petitioner was inpatient from 17.03.2020 to 18.07.2017 and from 26.08.2021 to 28.08.2021. He also underwent surgery and took treatment, obtained follow up 17 MVC 211/2021 SCCH-25 treatment. This must have caused loss of some income and discomforts to the parents of the Petitioner during that period. Therefore, his parents are entitled for a sum of Rs.25,000/ under the head of loss of income and discomforts to the parents. The Petitioner has stated that they have spent considerable amount towards his conveyance and nourishment etc.. Therefore, Petitioner is entitled for a sum of Rs.17,000/ under this head. The Petitioner stated that his parents have spent Rs.3,00,000/ amount towards medical and other expenses. In this regard the Petitioner has produced medical bills as per Ex.P.10 only for a sum of Rs.1,09,259/. In the cross examination, there is no contrary admission obtained from the mouth of PW.1. Therefore, the Petitioner is entitled for a sum of Rs.1,09,259/ under the head of medical expenses.
17. Hence, the Petitioner is entitled for compensation as follows: 18 MVC 211/2021 SCCH-25 Sl. HEAD COMPENSATION No. AMOUNT
1. Pain and suffering already Rs.1,00,000/ undergone and to be suffered in future including loss of comforts amenities on account of disability.
2. Discomforts, inconvenience and Rs.25,000/ Loss of earnings of the parent during the laid up period.
3. Medical Bills Rs.1,09,259/
4. Conveyance, attendant and Rs.17,000/ nourishment etc. TOTAL Rs.2,51,259/ If it is rounded off it comes around Rs.2,52,000/ and same is awarded to the petitioner under the above heads alongwith interest @ 6% per annum.
LIABILITY:
18. As per the discussion made above this Tribunal held that the Respondent No.1 have failed to prove their defence and hence the respondents are jointly and severally liable to pay the compensation to the petitioner. However, as the Petitioner has proved the existence of insurance policy and as there is no contrary evidence by the insurer, 19 MVC 211/2021 SCCH-25 hence the Respondent No.1 - insurer has got primary liability to compensate the Petitioner. The Petitioner has claimed for a sum of Rs.15,00,000/ but he is entitled only for a sum of Rs.2,52,000/ with interest @ 6% p.a.. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
19. Issue No.3: For the reasons and discussions made above and finding to the above issues, this Tribunal proceeds to pass the following: ORDER The petition is allowed in part with cost.
The Petitioner is entitled for compensation of Rs.2,52,000/ (Rupees Two Lakhs Fifty Two Thousand only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount. The 20 MVC 211/2021 SCCH-25 Respondents 1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.1Insurer of the offending vehicle is directed to deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, a sum of Rs.1,00,000/ shall be kept in FD in the name of the minor petitioner in any N/S Bank till he attains the age of majority and the remaining compensation shall be released in favour of the guardian of the petitioner on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
21 MVC 211/2021
SCCH-25 Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 20TH day of April 2023).
(Miss.B.T.ANNAPOORNESHWARI) XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Mr.Ramesh PW.2 Dr. Aditya PW.3 Mr.Ashok Kulal
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of FIS
Ex.P.3 True copy of Charge sheet
Ex.P.4 True copy of spot sketch
Ex.P.5 True copy of spot mahazar
Ex.P.6 True copy of wound certificate
Ex.P.7 Discharge summary issued by Medstar
Hospital (two pages)
Ex.P.8 Discharge summary issued by Arka
Hospital (two pages)
22 MVC 211/2021
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Ex.P.9 30 medical bills for Rs.1,09,259/
Ex.P.10 18 medical prescriptions
Ex.P.11 One recent Xray
Ex.P.12 Authorization letter
Ex.P.13 One IP case sheet
Ex.P.14 True copy of MLC Extract (Compared with original register and same is returned) List of Witnesses examined for Respondent/s:
NIL List of documents exhibited for Respondent/s:
- NIL -
(Miss.B.T.ANNAPOORNESHWARI) XXI A.C.M.M.,& XXIII ASCJ Bengaluru.