Bangalore District Court
Boraiah vs ) K.B. Thyagaraj on 20 October, 2015
BEFORE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-11)
DATED THIS 20th DAY OF OCTOBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.2930/2014
PETITIONER: Boraiah
S/o Late. Linganna,
Age : 75 Years,
# 1215, Manjunatha Swamy Nilaya,
2nd 'C' Main, 7th Cross,
5th Block, Hosakerehalli,
Banashankari 3rd Stage,
Bangalore-85.
(Sri. N. Suresh., Advocate)
-V/S -
RESPONDENTS: 1) K.B. Thyagaraj
S/o Bheema Raju Naidu,
No.E-560-72,
Banashankari 2nd Stage,
Kanakapura Main Road,
Kaveri Nagara,
Bangalore-70.
(Sri. C. Rajanna, Advocate)
SCCH-11 2 MVC 2930/2014
2) Branch Manager,
The Oriental Insurance Company Limited,
No.6, 7th Main,
Above Food World,
80 ft Road, 3rd Block,
Koramangala,
Bangalore-34.
(Sri. V. Shrihari Naidu, Advocate)
JUDGMENT
Petitioner has filed this claim petition against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred that, on 17.12.2013 at about 8:30pm, the petitioner was returning to his home after evening walk infront of Muthoot Finance besides footpath in 100 feet road, 3rd stage, Banashankari Bangalore. At that time, the rider of motor cycle bearing No.KA-05-JA-7348 has ridden the said vehicle in rash and negligent manner endangering human life with high speed from Nayandahalli side and dashed to the petitioner. Due to said impact, SCCH-11 3 MVC 2930/2014 the petitioner sustained grievous injuries to his right leg. Immediately after the accident, petitioner was shifted to Vinayaka hospital for treatment and admitted as inpatient and an operation was conducted. The petitioner was shifted and admitted to BGS hospital, Bangalore for further treatment and he took treatment in the said hospital and discharged on 26.12.2013. Petitioner has also taken treatment in Columbia Asia hospital. The petitioner has spent Rs.10,00,000/- towards medicine, conveyance and hospitalisation. Prior to the accident, the petitioner was hale and healthy and he was aged about 75 years and doing milk vending business and cultivation of coconut in the village and he was earning Rs.50,00,000/- per month from milk vending and agriculture. The petitioner is only earning member in his family and his family members are depending upon the income of petitioner. Due to the accidental injuries, the petitioner is not in a position to do work which he was doing prior to the accident and he has suffered mental shock, and agony apart from pain and sufferings. The implants are still in fractured site and he has to undergo one more surgery. The accident has taken place due to rash and negligent SCCH-11 4 MVC 2930/2014 driving by the rider of offending vehicle and jurisdictional police have registered the case against the driver of offending vehicle. As on the date of accident, vehicle was insured with respondent No2 and insurance policy was inforce as on the date of accident. The respondents being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation to the petitioner. Hence, the petitioner has claimed the compensation of Rs.50,00,000/- along with interest and costs.
3) Though, respondent No.1 has appeared through his counsel, he has not filed his written statement. Hence, written statement of respondent No1 is taken as not filed.
4) The respondent No.2 has filed written statement and denied the contents of claim petition.
5) Petitioner himself examined as PW1 and also examined Dr. Raju K.P S/o K. Puttaswamy Gowda as PW2 and got marked ExP.1 to 48 and closed his evidence. Though, sufficient time has been granted to SCCH-11 5 MVC 2930/2014 the respondents, they have not led their evidence. Hence, respondents' side evidence is taken as nil.
6) Heard the arguments of learned counsel for petitioner and learned counsel for respondents and perused the evidence on record.
7) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether petitioner proves that, he sustained grievous injuries due to the actionable negligence on the part of the driver of offending vehicle bearing No.KA-05-JA-7348 on 17.12.2013 at about 8.30 p.m, when petitioner was returning home by walk in front of Muthoot Finance besides 100 feet road, 3rd Stage, Banashankari, Bengaluru?
2. Whether respondent No.2 proves that as on the date of accident, the driver of offending vehicle was not holding valid and effective driving licence and respondent No.1 violated the terms and conditions of the insurance policy?
3. Whether petitioner is entitled for the compensation as prayed n the claim petition? If so, what is the quantum of compensation and from whom?
4. What order or Award?SCCH-11 6 MVC 2930/2014
8) My findings on the above issues are as under:
Issue No.1 : Affirmative;
Issue No.2 : Negative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled to compensation of
Rs.3,24,617/- along with interest @
of 6% p.a. from the date of petition
till complete realisation, from
respondent No.2.
Issue No.4 : As per final order for the following:
REASONS
9) Issue No.1: PW1 has stated in his evidence that, on 17.12.2013 at about 8:30pm, he was returning his home after evening walk infront of Muthoot Finance besides footpath in 100 feet road, 3rd stage, Banashankari, Bangalore. He has stated that, at that time, the respondent No1 has driven the motor cycle bearing No.KA-05-JA- 7384 in rash and negligent manner endangering human life with high speed from Nayandanahalli side and dashed to him. He has stated that, the accident has taken place due to rash and negligent driving by SCCH-11 7 MVC 2930/2014 the rider of offending vehicle and jurisdictional police have registered the case against the rider of said vehicle.
10) In the cross examination of PW1, he has stated that, on the date of the accident, he had gone for walk and he was returning to his house and on that day, there were public on the road who were moving besides him. He has stated that, he has sustained both bones fracture to the right leg and he has not sustained any other injuries in the accident. He has stated that, his son filed complaint to the police about the accident. He has admitted that, complaint has been lodged after one day of the accident. He has stated that, he has told to the doctors about cause for injuries. He has denied the suggestion of learned counsel for respondent insurance company that, no motor cycle has caused accident to him and he has filed false complaint by falsely implicating the vehicle of known person and he has told to the doctors about history of the accident as self fall. He has also denied the suggestion of learned counsel for respondent insurance company SCCH-11 8 MVC 2930/2014 that, while he was walking besides the road, he lost his balance and fell down and sustained injuries.
11) Petitioner has produced certified copy of charge sheet which is marked as ExP.1 and as per said document, the police have filed charge sheet against the driver of offending vehicle for the offences punishable under section 279 and 338 of IPC. Petitioner has also produced certified copy of FIR and complaint which are marked as ExP.2 and 3 and as per said documents, on 17.12.2013 at about 8:30pm, when the petitioner was going by walk to his house and came near 100 feet road, infront of Muthoot Finance, Banashankari, 3rd Stage, Bangalore, at that time, the rider of motor cycle bearing No.KA-05-JA-7348 has ridden the said vehicle in rash and negligent manner endangering human life with high speed and dashed to the petitioner. As per the FIR and complaint, the incident has taken place on 17.12.2013 at about 8:30pm and FIR is registered on 18.12.2013 at about 11:00am and son of petitioner has filed the complaint to the police station after admitting his father to the Vinayaka Nursing SCCH-11 9 MVC 2930/2014 Home due to fracture of right leg. Petitioner has produced certified copy of hand sketch map and panchanama which are marked as ExP.4 and 5 and as per said documents, petitioner was walking on the edge of 100 feet road, 3rd stage, Banashankari, at that time, the rider of offending vehicle came from west to east direction and dashed to the petitioner on the edge of the road on the left side of the road. Petitioner has also produced statements and restatements of witnesses by name Shrishankar, Gangadhar and Borayya given to the police, which are marked as ExP.6 to 10 about rash and negligent driving by the rider of offending vehicle. Petitioner has also produced certified copy of police notice under section 133 of Motor Vehicles Act and reply given by the respondent No1 admitting that, he had ridden his motor cycle on 17.12.2013 at about 8:30pm.
12) On perusal of oral and documentary evidence on record, it reveals that, on 17.12.2013 at about 8:30pm, when the petitioner was returning to his home after evening walk on 100 feet road, 3rd stage, Banashankari, at that time, the driver of offending vehicle has ridden SCCH-11 10 MVC 2930/2014 the said vehicle in rash and negligent manner endangering human life with high speed and dashed to the petitioner on the left edge of the road. Though, there is delay of one day in lodging the complaint, the delay is not ground to reject the claim petition. Because, the complainant had taken his father to the hospital and after providing treatment in Vinayaka Nursing Home, he filed the complaint to the police station. So I hold that, the petitioner has proved rash and negligent driving by the rider of offending vehicle. So, I answer issue No.1 in the affirmative.
13) Issue No2: The respondent No2 has taken contention that, as on the date of the accident, the driver of offending vehicle was not holding valid and effective driving licence and respondent No1 has violated terms and conditions of insurance policy. But, this contention of the respondent No2 is not acceptable. Because, the respondent No2 has not adduced the evidence of licensing authority and it has not produced any materials on record to prove the said contention about non possession of valid and effective driving licence by the driver of SCCH-11 11 MVC 2930/2014 offending vehicle. Even jurisdictional police have registered the case against the driver of offending vehicle and after investigation, they have filed charge sheet against the driver of offending vehicle for the offences punishable under section 279,338 of IPC and they have not filed charge sheet for the offences punishable under section 3(1) R/W.S.181 of Motor Vehicles Act. Even in the reply given by the respondent No1 to the police, he has given particulars of driving licence which shows that, he was having driving licence LMV with gear and said driving licence was valid for the period from 10.1.2011 to 31.1.2030 and as on the date of the accident, the driver of offending vehicle was holding valid and effective driving licence. So I hold that, the contention of the respondent No2 is not acceptable. So I answer issue No2 in the negative.
14) Issue No.3: PW1 has stated in his evidence that, immediately after the accident, he was shifted to Vinayaka Nursing Home and on 17.12.2013, an operation was conducted to him and as his condition was serious, he was shifted to BGS Global hospital wherein SCCH-11 12 MVC 2930/2014 he was admitted as inpatient for the period from 20.12.2013 to 26.12.2013. He has stated that, he has spent Rs.10,00,000/- for the medicines, conveyance and other expenses.
15) Petitioner has produced medical bills which are marked as Ex.P.24, 25, 26 and as per the said documents, the petitioner has spent Rs.1,89,617.16ps towards the treatment. So, I hold that petitioner is entitled for compensation of Rs.1,89,617/- under the head of Medical Expenses.
16) Petitioner has produced inpatient bill of BGS Global hospital and as per the said document, he was admitted in the BGS Global Hospital on 20.12.2013 and discharged on 26.12.2013. Petitioner was admitted in the said hospital for the total period of 7 days and during the period of hospitalization, petitioner would have spent some amount towards food, nourishment, conveyance and attendant charges and his family members who attended him would have also spent some amount towards food and other incidental charges. Considering the period of hospitalization and cost of living, I feel it just and proper to award SCCH-11 13 MVC 2930/2014 the compensation of Rs.10,000/- under the head of food, nourishment, conveyance and attendant charges. Hence, petitioner is awarded compensation of Rs.10,000/- under the head of food, nourishment, conveyance and attendant charges.
17) Petitioner was admitted in the BGS Global hospital for the period of 7 days and during the period of hospitalization, the petitioner would have lost some income and his family members who attended him would have also lost some income. Considering these facts, I feel it just and proper to award the compensation of Rs.15,000/- under the head of loss of income during laid up period. Hence, petitioner is awarded compensation of Rs.15,000/- under the said head.
18) As per the wound certificate produced by the petitioner, he sustained contused abrasion over the right leg measuring 1x1 cm, contused abrasion over left elbow, compound fracture of both bones (tibia and fibula with complete displacement and as per the wound SCCH-11 14 MVC 2930/2014 certificate, injury No.1 and 2 are simple in nature and injury No.3 is grievous in nature. As per the evidence of PW.2, petitioners sustained right tibia shaft fracture and respiratory failure and he was admitted in the hospital on 20.12.2013 and undergone closed interlocking nail for right leg in Vinayaka Hospital. He has stated that, he examined the petitioner on 20.07.2015 for disability assessment and petitioner has pain and limp in the right leg with mild deformity of lower 1/3rd of right leg and right knee. He has also stated that, the petitioner has pain over right knee and ankle with stiffness and movement restriction and he has difficulties in walking, climbing stairs, standing on both legs, standing of affected leg, walking. As per the evidence of PW.2, the petitioner has knee flexion movement restricted about 20-25 degree and ankle about 15 degree with surgical scar over right knee. Though petitioner has undergone surgery, he has still pain and stiffness and restriction of movements due to the accidental injuries and he has to suffer pain and agony throughout his life. Considering this fact, I feel it just and proper to award compensation of Rs.25,000/- under the head of Pain and agony.
SCCH-11 15 MVC 2930/2014
19) Though, the petitioner has undergone surgery, he has stiffness and pain and he has to depend upon others due to the restriction of movements and he cannot carryout routine activities as earlier. The petitioner cannot enjoy amenities in life due to the accidental injuries and he has to depend upon others for his daily activities. Considering this fact, I feel it just and proper to award the compensation of Rs.25,000/- under the head of loss of amenities in life. Hence, petitioner is awarded compensation of Rs.25,000/- under the head of loss of amenities in life.
20) PW.1 has stated in his evidence that, prior to the accident, he was hale and healthy and he was doing milk vending business and cultivation of coconut in the village and earning Rs.10,00,000/- per year from agriculture and milk vending business. He has also stated that, he is the only earning member in the family and family members are depending upon his earnings and due to the accidental injuries, he is unable to attend his work.
SCCH-11 16 MVC 2930/2014
21) In the cross-examination of PW.1, he has stated that, he was working as Junior Engineer in PWD and retired in the year 1997 and he getting monthly pension of Rs.20,000/-. He has stated in his cross-examination that, he is having three daughters and one son and his daughters are married and his son is residing in Bangalore and nobody in his family are residing in Madhugiri. He has stated that, his son is working in a factory in Bangalore. This goes to show that, none of the family members of the petitioner are depending upon his income and his son is also working in a factory at Bangalore and residing in Bangalore only and he is not depending upon the income of the petitioner. He has admitted in his cross-examination that, he has not produced any documents to show that, he was earning Rs.10,000/- and he had engaged services of an attendant and payment of Rs.10,000/- per month. PW.2 has stated in his evidence that, the petitioner has stiffness and movement restriction of right knee and ankle and knee flexion movement restricted about 20-25 decree and ankle about 15 degree and surgical scar over right knee. He has SCCH-11 17 MVC 2930/2014 admitted in his chief affidavit that, as per the X-ray, the union of fracture is satisfactory, but he has assessed disability at 56% to the lower limb and whole body disability at 19%. But, he has not given calculation that, how he reached conclusion about assessment of disability. Even he has not explained in his chief affidavit about stability and mobility components. Even he has not commented about functional disability of petitioner. In the cross-examination of PW.2, he has admitted that, petitioner is aged about 75 years and suffering from diabetes and hypertension. He has also admitted in his cross- examination that, due to age old ness, there will be restriction of movements to some extent and as the implants are in situ, there will be restriction of movements. He has admitted that, injuries are heeled up. Even he has also admitted that, if implants are removed and physiotherapy treatment is taken, the disability will come down. Since petitioner is suffering from diabetes and hypertension and implants are in situ, and due to the age oldness, there will be restriction of movements. On perusal of oral evidence of PW.2, the fractures are united and if implants are removed and physiotherapy SCCH-11 18 MVC 2930/2014 treatment is given, the disability will come down. Even on perusal of the oral evidence of PW.1, he is getting pension of Rs.20,000/- per month. But, he has produced record of rights which are marked as Ex.P.29 to 35 which go to show that, he is also doing agricultural work. However, due to the accidental injuries, petitioner may not be able to carryout agricultural work. But, the disability assessed by the PW.2 is on higher side without proper calculation as per the guidelines of Government of India. The petitioner is aged about 75 years and he has not produced documents about agricultural income. However, I feel it just and proper to consider notional income of petitioner at Rs.5,000/-. As per the decision of Hon'ble Supreme Court reported in AIR 2009 SC 3104 (Sarla Verma), the multiplier applicable to the facts of this case is '5'. Since the petitioner is aged about 75 years, there shall not be any addition towards future prospectus in view of decision of Hon'ble Supreme Court in Rajesh and others V/s Rajbir Singh and others, 2013 ACJ 1403. However, I feel it just and proper to consider the whole body disability by taking into the SCCH-11 19 MVC 2930/2014 functional and physical activities and mobility and stability compound at 10%. Then actual loss of income will be as under :
Rs.5,000x12x10x5/100 = Rs.30,000/-
So, I hold that, petitioner is entitled for compensation of Rs.30,000/- under the head of loss of income.
22) Since the implants are in situ and petitioner has to undergo one more surgery for removal of implants, I feel it just and proper to award compensation of Rs.30,000/- under the head of future medical expenses which shall not carry any interest. So, I hold that, petitioner is entitled for compensation of Rs.30,000/-under the said head. So, I hold that, petitioner is entitled for compensation under different heads which is calculated as under:
23) The Calculation table stands as follows:
1) Towards Medical expenses Rs. 1,89,617/-
2) Towards Food, nourishment, Rs. 10,000/-
Conveyance and attendant
charges
SCCH-11 20 MVC 2930/2014
3) Towards Pain and agony Rs. 25,000/-
4) Towards loss of income during the Rs. 15,000/-
period of hospitalization
5) Towards loss of amenities in life Rs. 25,000/-
6) Loss of income Rs. 30,000/-
7) Future Medical Expenses Rs. 30,000/-
Total Rs. 3,24,617/-
24) Respondent No.1 is owner and respondent No.2 who is insurer of the offending vehicle is liable to indemnify the respondent No.1. So I hold that, petitioner is entitled for compensation of Rs.3,24,617/- along with interest @ 6% p.a. from the date of petition from respondent No.2, till complete realisation. Accordingly, I answer this issue No.3 partly affirmative.
25) ISSUE No.4: In view of answers to issues No.1 to 3, I proceed to pass the following:
ORDER The petition filed under Section 166 of M.V. Act is partly allowed with costs.SCCH-11 21 MVC 2930/2014
The petitioner is entitled to compensation of Rs.3,24,617/- along with interest at the rate of 6% p.a. from the date of petition till complete realisation from respondent No.2.
The respondent No.2 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this order.
On deposit of award amount, since petitioner is aged more than 75 years, entire award amount along with interest shall be released to the petitioner by means of account payee crossed cheque, on proper identification and endorsement.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to my dictation by the Stenographer, corrected by me, then pronounced in Open court on this 20th day of October, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH-11 22 MVC 2930/2014 ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Boraiah
PW.2 - Dr. Raju K.P
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - CC of Charge sheet
Ex.P.2 - CC of FIR
Ex.P.3 - CC of Complaint
Ex.P.4 - CC of Hand sketch map
Ex.P.5 - CC of Panchanama
Ex.P.6 - CC of Statements of Sri. Shankar
Ex.P.7 - CC of Statements of Sri. Gangadhar
Ex.P.8 - CC of Statements
Ex.P.9 - CC of re-statement of Sri. Gangadhar
Ex.P.10 - CC of re-statement of Sri. Shankar
Ex.P.11 - CC of police notice
Ex.P.12 - CC of reply to the police notice
Ex.P.13 - CC of Wound certificate
Ex.P.14 - CC of IMV report
Ex.P.15 - 13 Medical bills
Ex.P.16 - 3 Medical prescriptions
Ex.P.17 - One inpatient bill
Ex.P.18 - 7 inpatient advance receipt
Ex.P.19 - 7 Outpatient bills
SCCH-11 23 MVC 2930/2014
Ex.P.20 - 2 Medical bills
Ex.P.21 - Discharge summary
Ex.P.22 - One receipt issued by Columbia Hospital Ex.P.23 - Discharge summary Ex.P.24 - One inpatient bill Ex.P.25 - 2 inpatient bills Ex.P.26 - 2 Medical advice Ex.P.27 - One deposit receipt Ex.P.28 - 14 Medical bills Ex.P.29 - Record of rights of land bearing survey No.8/3(a) of Sogenahalli Village in Madhugiri taluk. Ex.P.30 - Record of rights of land bearing survey No.8/1(a) of Sogenahalli Village in Madhugiri taluk. Ex.P.31 - Record of rights of land bearing survey No.4/1 of Sogenahalli Village in Madhugiri taluk. Ex.P.32 - Record of rights of land bearing survey No.6/8(a) of Sogenahalli Village in Madhugiri taluk. Ex.P.33 - Record of rights of land bearing survey No.1/2(a)-p2 of Sogenahalli Village in Madhugiri taluk.
Ex.P.34 - Record of rights of land bearing survey No.4/2 of Sogenahalli Village in Madhugiri taluk. Ex.P.35 - Record of rights of land bearing survey No.4/3 of Sogenahalli Village in Madhugiri taluk. Ex.P.36 - Record of rights of land bearing survey No.4/4 of Sogenahalli Village in Madhugiri taluk. Ex.P.37 - Inpatient records Ex.P.38 - Outpatient records SCCH-11 24 MVC 2930/2014 Ex.P.39-43 - 5 CT Scan X-rays Ex.P.44-48 - 5 X-rays WITNESSES EXAMINED FOR RESPONDENTS :
- NIL -
DOCUMENTS MARKED FOR RESPONDENTS :
- NIL -
I ADDL.SCJ. & MACT.