Bangalore District Court
Sri.M.C.Premkumar vs M/S Cholamandalam Gic Ltd on 23 November, 2022
SCCH-20 1 MVC No.2482/2022
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL &
V ADDL. JUDGE SCCH20, Mayo Hall Unit, Bengaluru.
Dated this the 23rd day of November, 2022
Present: Smt.Sharmila C.S. BA.L., LL.M
V Addl. Small Causes Judge
& XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC. No.2482/2022
PETITIONER: Sri.M.C.Premkumar
S/o J.C.Martin
Aged about 47 years,
R/o No.246/A, 7th A main
RPC Layaout, Hampinagar,
Vijayanagar 2nd stage,
Bangalore - 560104
(By Pleader Sri.T.Manjunatha)
V/s
RESPONDENTS: 1. M/s Cholamandalam GIC Ltd,
Motor Claims Hub, Unit No.04,
9th floor, Level06,
Golden Heights Complex,
Industrial Suburb,
4th 'M' block, 59th C Cross,
Rajajinagar, Bangalore - 560010
2. Sameer
S/o Mohammed
Shanthinagara Manthooru House
Savanoor, Puttur,
Dakshina Kannada 574202
R1 by pleader Madhu Kiran and associates
R2By pleader Badruddeen.B)
SCCH-20 2 MVC No.2482/2022
JUDGMENT
The petition is filed seeking compensation of Rs.10,00,000/ for the injuries sustained in the road traffic accident.
2. Petition averments in brief are as follows; That on 01.03.2022 at about 08.30 pm., while the petitioner was walking on the left side of the road, near Devi Eye hospital, Thubarahalli bus stop, Bangalore, the motor cycle bearing No.KA70H7993, ridden by its rider in a rash and negligent manner, without following any traffic rules came and dashed to the petitioner, causing grievous injuries on vital parts of the body, for which the petitioner spent more than Rs.2,00,000/ towards medical expenses. That he was working as an Ambulance Driver and was earning Rs.20,000/ per month and he is not able to do his job and lost the earnings and hence the present petition.
3. Per contra, the respondent No.1 filed written SCCH-20 3 MVC No.2482/2022 statement contending the negligence on the part of the petitioner. Thus has sought for dismissal of the petition. The respondent No.2 also took defence that there is negligence on the part of the petitioner and submits that the driver of the offending vehicle had proper driving license and insurance coverage of the vehicle. Thus has sought for dismissal of the petition.
4. On the basis of the Pleadings and materials, the following issues were framed.
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in the accident that occurred on 01.03.2022 at about 08.30 PM, near Devi eye Hospital, Thubarahalli bus stop, Bangalore District, which was due to rash and negligent riding of motor cycle bearing No.KA70H7993 by its rider?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What order or award?
5. In order to prove his case, the petitioner got SCCH-20 4 MVC No.2482/2022 examined himself as P.W.1 and also got assessed the disability by PW2 and totally has produced 15 documents on his behalf. The respondent did not lead any evidence.
6. Heard from the counsel for the petitioner and the respondent.
7. My findings on the above points are as follows:
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order
for the following:
REASONS
8. Issue No.1: According to the petitioner, on
01.03.2022 at about 08.30 pm., while the petitioner was walking on the left side of the road, near Devi Eye hospital, Thubarahalli bus stop, Bangalore, the motor cycle bearing No.KA70H7993, ridden by its rider in a rash and negligent manner, without following any traffic rules came and dashed to the petitioner, causing grievous injuries on vital parts of the body, for which the petitioner spent more than SCCH-20 5 MVC No.2482/2022 Rs.2,00,000/ towards medical expenses. That he was working a Ambulance Driver and was earning Rs.20,000/ per month and he is not able to do his job and lost the earnings. Thus prays to grant the compensation as sought for.
9. In order to prove his case, the petitioner got examined himself as P.W.1 by filing his affidavit in lieu of examination in chief, where he has reiterated the above said facts. He also got assessed his disability by PW2 and totally has produced 15 documents on his behalf. To further prove the case, the petitioner has produced copy of complaint lodged by the petitioner himself in the hospital on 02.03.2022, which was recorded by the police officer. As per the said FIS, the petitioner has also noted the number of the offending vehicle and has informed that the driver of the offending vehicle bearing No.KA70H7993 has, without stopping the vehicle, went away from the place. He further submits that he took first aid at Yashomathi Hospital and then got admitted to Vydehi Hospital and thus has lodged complaint on the said SCCH-20 6 MVC No.2482/2022 date. The FIR is lodged as per Ex.P.1 alleging offences punishable under section 279, 337 of IPC and 134(A and B), 187 of IMV Act. The spot panchanama and sketch shows that the accident has occurred at the distance of about 5 feet from the divider towards right side where the petitioner is shown to have crossed 3/4th of the road, which is measuring 25 feet. The IMV report is produced as per Ex.P.4 and the vehicle examined on 05.04.2022 shows the fresh damages to the front wheel mud guard, front left side body and left side foot body. The report is given that the accident was not due to any mechanical defects of the vehicles. The final report is as per Ex.P.6 against the driver of the offending vehicle by name Sameer. The notice is given to the owner of the vehicle as contemplated under section 133 of M.V.Act and marked as Ex.P.7, for which the owner has replied by giving details of the driver of the vehicle and the driving license number along with details of the insurance policy.
10. The defence was taken up by the respondent that SCCH-20 7 MVC No.2482/2022 there is negligence on the part of the petitioner himself, who has crossed the road negligently. In this regard when the PW1 was cross examined, submits that there was no negligence in crossing and apart from this nothing could be elicited from the cross examination of PW1. Therefore the documentary evidence lead by the petitioner has a very important role in the instant case.
11. The sketch and the panchanama marked shows the place of accident and the road as totally measuring 53 feet and also has a divider in between the said roads, which is measuring 3 feet in width. Therefore it is clear that the roads are one way and each road is measuring 25 feet. As per the sketch, the place of accident is at a distance of 5 feet from the divider, where the petitioner was shown to have crossed nearly 20 feet towards divider. Admittedly the said road is main road and the sketch is also admitted by the petitioner as true and correct. The petitioner submits that there was facilities to cross the road. But nothing is there on the sketch SCCH-20 8 MVC No.2482/2022 to show that there was some signal or zebra crossing etc., in order to fecilitate the pedestrians to cross the said road. However the respondent has not lead any evidence and show before this court that there was no pedestrian crossing enabling the padestrians to cross the road in order to contribute the negligence on the part of the petitioner while crossing the road. In the given circumstance, the petitioner has already crossed the road for about 20 feet. The driver of the offending vehicle came from opposite direction, as per the sketch and moved towards the right side and caused accident. In the traffic rules, the driver of the vehicle are expected to move in the straight lane, carefully by watching other vehicles and the pedestrian if any. Therefore in the instant case, when the petitioner has already crossed the road for nearly 20 feet, the question of his negligence does not arise. Therefore the driver of the offending vehicle ought to had been much careful and therefore there is complete negligence on the part of the driver of the offending vehicle in causing the accident.
SCCH-20 9 MVC No.2482/2022
12. In this regard, the judgment of the Hon'ble High court of Karnataka, reported in 2004 ACJ 1091, in " A. Anandan vs. Abdul Azeez and others", is aptly applicable to the instant case on hand, where it is held thus;
" when the motorcyclist hit a pedestrian crossing the road and he sustained injuries, and neither the motor cyclist was examined nor any other evidence was produced by the defendants, the defence that injured was crossing the road without caring for the traffic does not hold good. Thus the motorcyclist was solely responsible for the accident"
In the instant case also, though the respondent took the defence that there is negligence on the part of the petitioner in causing the accident, nothing is shown by the respondent either by examining the driver or by leading any evidence. Hence applying the ratio laid down in the above case and for the reasons discussed above, this court is of the considered opinion that there is negligence on the part of the offending vehicle and thus the above issue is answered in affirmative. SCCH-20 10 MVC No.2482/2022
13. Issue No.2: The petitioner submits that the petitioner is aged 47 years and was working as Ambulance driver and was earning a sum of Rs.20,000/, which he has lost due to the accident. In order to show the age, he has produced the copy of Adhaar card and copy of DL as Ex.P.12 and P.13, showing his date of birth as 12.10.1975. Therefore the petitioner was aged 47 years and appropriate multiplier for the said age is 13. Further, in order to show that the petitioner was working as driver and was earning the income of Rs.20,000/, nothing is produced before this court. Therefore the notional income of Rs.14,750/ can be considered.
14. In order to show that the petitioner has suffered with disability, the petitioner got examined one Dr.Nagaraj, orthopedic surgeon as PW2. The PW2 submits that the petitioner as per records was treated with closed reduction and internal fixation with IMIL nailing on 07.03.2022 and SCCH-20 11 MVC No.2482/2022 later discharged on 11.03.2022. He has further assessed the total disability of right lower limb to an extent of 42% and whole body disabiity as 14% and has produced copy of Xray and clinical examination report, as per Ex.P.15 and P.14 respectively. He also submits that the petitioner needs another surgery of removal of implants, which may cost of Rs.60,000/.
15. The wound certificate is produced as per Ex.P.5, showing that the petitioner sustained fracture of right leg, both bones tibia and fibula, along with abrasion over left knee and left ankle, which are grievous in nature. The discharge summary of Vydehi institute of medical science and research centre is produced as Ex.P.9, where the petitioner was shown to have been admitted from 01.03.2022 till 05.03.2022 and was diagnosed for fracture of right tibia and fibula and was discharged against the medical advise from the said hospital, as he opted for BPL scheme. Further the discharge summary of Government Hospital, K.R.Puram is produced as per SCCH-20 12 MVC No.2482/2022 Ex.P.10, where the petitioner was shown to have been admitted from 05.03.2022 till 11.03.2022 with CRIF done on 07.03.2022. As per PW2, the injuries are completely healed and the petitioner is under physiotherapy during the course of treatment. But the implants are still in the body of the petitioner. Therefore nothing is brought out to create doubt, on credibility of the PW2, who is orthopedic surgeon at Sai Ortho and Dental Senter, Bangalore. Therefore where the implants are still inside body of the petitioner, some disability as suggested by the PW2 needs to be considered. Thus the disability assessed by the PW2 to the whole body to an extent of 14%can be considered for calculation of the loss of future income. Thus loss of future income can be calculated as under.
14,750X12X13X14%=Rs.3,22,140/
16. As per the available materials on record, Ex.P.11, the medical expenses would tune to Rs.24,869/, as medical expenses and hospital charges. Therefore, petitioner is entitled for Rs.24,869/ under the head of medical expenses SCCH-20 13 MVC No.2482/2022 and hospital charges.
17. The petitioner being in the hospital as inpatient for a period of 11 days and being in bed rest for a period of one month, the petitioner can be made entitled for Rs.50,000/ towards pain and sufferings, Rs.11,000/ towards food and nourishment charges, Rs.11,000/ towards conveyance charges, and Rs.11,000/ towards attendant charges and Rs.25,000/ towards loss of amenities. The petitioner needs another surgery for the removal of implants, for which he may require some amount also. Hence the petitioner is entitled for Rs.60,000/ towards future medical expenses.
18. Thus, the petitioner is entitled for just and reasonable compensation as under:
1 Pain and sufferings Rs.50,000/ 2 Medical expenses and hospital charges Rs.24,869/ 3 Food and nourishment Rs.11,000/ 4 Conveyance charges Rs.11,000/ 5 Attendant charges Rs.11,000/ 6 Loss of amenities Rs.25,000/ 7 Loss of income during laid up period Rs.14,750/ 8 Loss of future income Rs.3,22,140/ 14,750x12x13x14% SCCH-20 14 MVC No.2482/2022 9 Future medical expenses Rs.60,000/ TOTAL Rs.5,29,759/-
In all the petitioner is entitled for compensation of Rs.5,29,759/, which can be rounded to Rs.5,30,000/.
19. In this case, there is no disputed fact that the respondent No.1 is the insurer of the said motor cycle bearing No.KA70H7993 which caused accident. The respondent no.1 has failed to prove that the insurance company is not liable to pay the aforesaid compensation amount and as on the date of accident the insurance policy was in force. Hence, this issue is answered accordingly burdening the respondent No.1 to pay the compensation to the petitioner, along with the present Bank rate of interest at 6%.
20. Point No.3: For the reasons stated in the aforesaid paragraphs, I proceed to pass the following: ORDER The claim petition filed by the petitioner under SCCH-20 15 MVC No.2482/2022 Section 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation of Rs.5,30,000/ with interest at 6% per annum (excluding the future medical expenses) from the date of petition till the date of realization of the entire amount.
The respondent No.1 is hereby directed to deposit the aforesaid compensation amount within two months from the date of judgment.
After deposit, the entire compensation amount shall be released in favour of the petitioner with proper identification.
Advocate fee is fixed at Rs.5,000/.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this the 23 rd of November 2022) (Sharmila C.S) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
SCCH-20 16 MVC No.2482/2022A N N E X U R E:
Witnesses examined for petitioners:
P.W.1 : M.C.PremKumar P.W.2 : Dr.B.N.Nagaraj
Documents marked for petitioners:
Ex.P1 : True Copy of the FIR, Ex.P2 : True Copy of the FIS Ex.P3 : True Copy of spot panchanama Ex.P3(a) : True Copy of sketch Ex.P4 : True Copy of MVA report Ex.P5 : True Copy of wound certificate Ex.P6 : True copy of Charge Sheet Ex.P7 : True copy of 133 Notice Ex.P8 : True copy of reply Notice Ex.P910 : Discharge summaries Ex.P11 : Medical bills
Ex.P.12 : Notarized copy of Adhaar card Ex.P.13 : Notarized copy of DL Ex.P.14 : Authorization letter Ex.P.15 : Xray Witnesses examined for respondents: NIL Documents marked for respondents: NIL (Sharmila CS,) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.SCCH-20 17 MVC No.2482/2022
23.11.2022 (Judgment pronounced in the Open Court, vide separate Order) ORDER The claim petition filed by the petitioner under Section 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation of Rs.5,30,000/ with interest at 6% per annum (excluding the future medical expenses) from the date of petition till the date of realization of the entire amount.
The respondent No.1 is hereby directed to deposit the aforesaid compensation amount within two months from the date of judgment.
After deposit, the entire compensation amount shall be released in favour of the petitioner with proper identification.
Advocate fee is fixed at Rs.5,000/.
Draw award accordingly.
V Addl. Judge & 24th ACMM SCCH-20 18 MVC No.2482/2022 AWARD SCCH NO.20 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC. No.2482/2022 PETITIONER: Sri.M.C.Premkumar S/o J.C.Martin Aged about 47 years, R/o No.246/A, 7th A main RPC Layaout, Hampinagar, Vijayanagar 2nd stage, Bangalore - 560104 (By Pleader Sri.T.Manjunatha) V/s RESPONDENTS: 1. M/s Cholamandalam GIC Ltd, Motor Claims Hub, Unit No.04, 9th floor, Level06, Golden Heights Complex, Industrial Suburb, 4th 'M' block, 59th C Cross, Rajajinagar, Bangalore - 560010
2. Sameer S/o Mohammed Shanthinagara Manthooru House Savanoor, Puttur, Dakshina Kannada 574202 R1 by pleader Madhu Kiran and associates R2By pleader Badruddeen.B) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, SCCH-20 19 MVC No.2482/2022 praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/Death of in a motor Accident by vehicle No. WHEREAS, this claim petition coming up before Smt.Sharmila CS, V Addl., Judge and XXIV A.C.M.M, Member, Motor Accident Claim Tribunal, Metropolitan Area, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The claim petition filed by the petitioner under Section 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation of Rs.5,30,000/ with interest at 6% per annum (excluding the future medical expenses) from the date of petition till the date of realization of the entire amount.
The respondent No.1 is hereby directed to deposit the aforesaid compensation amount within two months from the date of judgment.
After deposit, the entire compensation amount shall be released in favour of the petitioner with proper identification.
SCCH-20 20 MVC No.2482/2022
Advocate fee is fixed at Rs.5,000/.
Given under my hand and seal of the Court this day of 2022.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 ¬ _________________________________ Court fee paid on petition 1000 Process Pleaders Fee _____________________________ Total Rs. Decree Drafted Scrutinized by MEMBER, M.A.C.T. METROPOLITAN: BANGALORE Decree Clerk SHERISTEDAR SCCH-20 21 MVC No.2482/2022