Bangalore District Court
Smt. Manam Padmavathi vs M/S. Komitla Services on 30 November, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 30th DAY OF NOVEMBER, 2016
PRESENT: SRI. CHANDRASHEKARA. P.S. B.Com., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.4001/2015
PETITIONER: Smt. Manam Padmavathi
@ Manam Padma,
Aged about 54 years,
W/o. Sri. Manam Lakshminarayana,
R/at No.1990, 16th Cross,
8th Main Road, Near Pipeline,
Kumaraswamy Layout,
J.P.Nagar, Bangalore - 560 078.
(By Pleader Sri. K.R. Padmanabhaiah...Advocate)
- V/S -
RESPONDENTS: 1. M/s. Komitla Services,
No.15, 4th Cross, Koramangala,
6th Block, Bangalore - 560 034.
(Exparte)
2. United India Insurance Co. Ltd.,
Regional Office: 5th & 6th Floors,
Krushi Bhavan, Nrupathunga Road,
Bangalore - 560 001.
Represented by its Manager.
(By Pleader Sri. T.R. Rajeshwari...Advocate)
SCCH-11 2 MVC 4001/2015
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act against the respondents claiming compensation of Rs.60,00,000/- for the injuries sustained in RTA that occurred on 09.6.2015.
2) The brief facts of the petitioner case are as under:
That on 09.06.2015 the petitioner was traveling in the Tourist bus bearing Regn.No.KA-01-AD-0660 from Vijayawada to Bangalore. When the said bus was proceeding on NH-16, Kavali - Nellore road, near N.S.R. Colony, Kovur village and Mandal, Nellore District, Andhra Pradesh, at about 2 am., the driver of the said bus drove the bus in a rash and negligent manner with high speed, endangering to human life. Due to this the driver of the bus lost control over the bus and it turned turtle besides the left side of the road. As a result, the petitioner sustained grievous injuries along with other inmates of the bus. Immediately she was shifted to Simhapuri hospital, Nellore, Andhra Pradesh where he took treatment as a inpatient for a day. Later she was shifted to Fortis Hospital, SCCH-11 3 MVC 4001/2015 Bannerghatta Road, Bangalore for better treatment, where she took treatment as inpatient. During that period, she underwent surgery by C1-C2 posterior fixation and ORIF Proximal Humerus, she underwent operation under G.A. on 12.06.2015. She was discharged from the Hospital on 27.06.2015 with an advice for follow up treatment and also to take bed rest. Due to the fracture injuries, there is impairment in her movement and she cannot properly stand or walk. She requires an attendant round the clock and she is advised physiotherapy and accordingly physiotherapist visiting the petitioner's house to give physiotherapy treatment for which she is paying Rs.1,000/- per trip. Because of the accidental injuries she cannot do her normal duties effectively as she was doing prior to the accident. The injury caused permanent disability and she has to suffer from disability throughout her life. The petitioner is a housewife and she was also doing catering, saree zigzag and falls and thereby earning Rs.25,000/- per month. Because of the accident, she could not do the household works and she has engaged maidservant by paying Rs.5,000/- per month. She could SCCH-11 4 MVC 4001/2015 not attend to her duties as such she lost earnings. The petitioner has spent about Rs.8,00,000/- for medical expenses and also incidental charges. She has to undergo further operation for the removal of implants. The accident occurred due to the rash and negligent driving of the Tourist bus bearing No.KA-01-AD-0660 by its driver.
Hence, the Respondents who are the insurer and RC owner of the offending vehicle are liable to pay the compensation. Hence, she prayed for allowing the petition.
3) After service of notice, respondent No.1 remained absent, hence placed exparte. Respondent No.2 has appeared through its counsel and contested the petitioner case by filing written statement wherein, he denied the allegations made in the petition as false and frivolous. He has further disputed the manner of the accident, nature of injuries sustained by the petitioner and the quantum of the compensation claimed under different heads. He has further contended that, the driver of the Tourist bus was not holding valid and effective driving licence at the time of accident and the said vehicle was not having permit to ply SCCH-11 5 MVC 4001/2015 in public place. As such, the insured has violated the terms and conditions of the policy. Hence, it is not liable to indemnify the liability of the insured. Among the above grounds, it is prayed for dismissal of the petition.
4) On the basis of the above rival pleadings, the following issues have been framed:
1. Whether petitioner proves that, she sustained grievous injuries in the accident that occurred on 09.06.2015 at about 2.00 am., near NSR Colony, Kovur Village, NH-16 Road, Kovur Mandalam, Sripotti, Sriramulu Nellore District while she was traveling in a tourist bus bearing Regn.No.KA-01-AD-0660 due to the rash and negligent driving of the bus by its driver?
2. Whether respondent No.2 proves that the driver of the bus was not holding valid and effective driving licence as on the date of accident and said bus was not having permit and Fitness Certificate?
3. Whether petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
4. What order or Award?SCCH-11 6 MVC 4001/2015
5) To prove the petitioner case, she herself filed affidavit in lieu of examination in chief and examined as PW.1. Besides her evidence, she has examined the doctor who treated her as PW.2 and produced 25 documents and got them marked as Ex.P.1 to P.25 and closed her side of evidence. To disprove the petitioner case and to prove its case, the respondent No.2 neither entered into witness box nor produced any documents.
6) I have heard the arguments of learned counsel appearing for the petitioner and respondent No.2.
7) My answers to the above said issues are as follows:
Issue No.1 In the Affirmative;
Issue No.2 In the Negative;
Issue No.3 Partly Affirmative; the
petitioner is entitled for
compensation of
Rs.8,75,700/- with interest @
6% p.a. from the date of
petition till realization, from
respondent No.2.
Issue No.4 As per final order, for the
following :
SCCH-11 7 MVC 4001/2015
-:REASONS:-
8) ISSUE No.1 AND 2: Since these issues are
interconnected with each other, they are taken together for common discussion to avoid the repetition. In so far as accident is concerned, the same is not in dispute. However, the respondent No.2 disputed the negligence on the part of the driver of Tourist bus and also contended that, the driver of the bus was not holding valid and effective driving licence as on the date of accident. When respondent disputed the negligence on the part of the driver of the bus, the burden lies on the petitioner to prove the negligence of the driver of the bus. To prove the negligence, PW.1 has reiterated the petition averments in her evidence and she has further deposed as to how the driver of the bus driven the vehicle and the manner in which the accident occurred.
9) It has come in the evidence of PW.1 that, the accident occurred due to the rash and negligent driving of the bus by its driver and he is solely responsible for the accident. In support of oral evidence, she has produced SCCH-11 8 MVC 4001/2015 complaint, F.I.R, charge sheet, case diary, statement and hand sketch as per Ex.P.1 to 6. On perusal of these documents, it is crystal clear that, the accident occurred due to the rash and negligent driving of the bus by its driver. Further, the evidence of PW.1 is coupled with the documentary evidence at Ex.P.1 to 6. Though respondent No.2 has cross-examined the PW.1, nothing has been elicited from her to disprove the negligence on the part of the driver of the bus. The registration of the criminal case against the driver of the bus for having driven the vehicle in a rash and negligent manner that itself prima facie proves the actionable negligence on the part of the driver of the bus. Further there is no denial of occurrence of the accident and contra evidence by the Respondent No.2 when that is so, there are no reasons to disbelieve the case of the petitioner to the effect that, the accident occurred due to the rash and negligent driving of the bus by its driver and she sustained injuries in the said accident.
10) It is the case of the respondent No.2 that, the driver of the bus was not holding valid and effective driving SCCH-11 9 MVC 4001/2015 licence as on the date of accident. Though he has taken such plea in the written statement, in order to prove such fact, he neither entered into the witness box nor produced any documents. In the absence of cogent material, oral as well as documentary rebuttal evidence, it cannot be said that, the driver of the bus was not holding valid and effective driving licence at the time of accident. Further, no attempt was made by the respondent No.2 to get the DL particulars of driver of the bus and produce before this tribunal. In view of this, I answered issue No.1 in the Affirmative and issue No.2 in the Negative.
11) ISSUE No.3: According to the petitioner, she sustained grievous injury as mentioned in wound certificate Ex.P.7 on account of the accident. On perusal of Ex.P.7 wound certificate, it is clear that, the petitioner sustained tenderness over the neck, pain and tenderness over the left shoulder and 4 X 1 X 1cms laceration over fractal region. According to the doctor who examined the petitioner, the above said injuries are grievous in nature. It has come in the evidence of PW.1 that, she sustained SCCH-11 10 MVC 4001/2015 fracture of second cervical vertebra and fracture of upper end humerus and took treatment as inpatient at Simhapur and Fortis Hospital, Bannerghatta Road, Bangalore. During that period, she underwent surgery and also subjected to expertise treatment. Case sheet at Ex.P.24 indicates that, the Petitioner took treatment as inpatient at Fortis hospital and it further indicates that, she underwent surgery for her fracture. PW.2 who is the doctor treated the petitioner has stated in his evidence that, he has treated the petitioner for the injuries sustained in the road traffic accident along with other doctors. He has further stated that, Petitioner sustained fracture of second cervical vertebra, fracture of upper end of humerus left. He has further stated that, the Petitioner underwent C1-C2 posterior fixation for the cervical spine injury and ORIF for the proximal humerus on 12.06.2015. He has further stated that, the patient complains of stiffness in the left shoulder, pain in the left upper limb, unable to carry her routine day to day activities, need assistance for her regular activities. He has further stated, he was examined the Petitioner clinically and assessed the disability. SCCH-11 11 MVC 4001/2015 Because of the above said infirmities, the Petitioner has 31% functional disability of the whole body. Though Respondent No.2 has cross-examined the PW.1, nothing has been elicited to disprove the disability caused to the Petitioner. However, considering the nature of the injuries, I feel, the disability assessed by the doctor is on higher side. Taking into the nature of the injuries sustained by the Petitioner and appreciating the evidence of doctor, I constrain to assess the disability at 15% whole body.
12) PW.1 has stated in her evidence that, she is house wife and also doing catering business, saree zigzag and falls thereby earning Rs.25,000/-, but nothing is placed on record to substantiate her income and avocation. However, considering the nature of avocation and date of the accident, I constrain to assess the income of the Petitioner at Rs.6,000/- per month.
13) According to the Petitioner she was aged about 59 years at the time of accident. The Wound certificate also discloses her age was 59. Hence, proper multiplier SCCH-11 12 MVC 4001/2015 will be '9'. Considering the income, age and disability, If a sum of Rs.97,200/- (Rs.6,000/- X 12 X 9 X 15/100 = Rs.97,200/-) is awarded towards loss of earning capacity and future income it would meets the ends of justice. Hence, I incline to award Rs.97,200/- towards loss of earning capacity and future income.
14) According to the petitioner she sustained fracture of second cervical vertebra and fracture of upper end of humerus and took treatment at Simhapuri and Fortis Hospital, Bannerghatta Road as inpatient. Considering the nature of the injuries and duration of hospitalization, I feel that, she has been put to some sort of inconvenience and discomfort and she might have suffered pain and mental agony on account of accidental injuries. Under the circumstances, I award a sum of Rs.50,000/- and Rs.20,000/- towards pain and suffering and loss of amenities in life.
15) It has comes in the evidence of PW.1 that, she has spent a sum of Rs.8,00,000/- towards medical SCCH-11 13 MVC 4001/2015 expenses and physiotherapy treatment. But the medical bills produced by her at Ex.P.8 (28 in numbers) indicates that, she has spent a sum of Rs.6,50,496/-. Though respondent has cross-examined the PW.1, nothing is elicited from her to disprove the medical bills. Under the circumstances, they cannot be ignored to award compensation. Hence, I incline to award a sum of Rs.6,50,500/- (rounded off) towards medical expenses. Hence, I award a sum of Rs.6,50,500/- towards Medical Expenses.
16) According to the Petitioner she has spent considerable amount towards conveyance, food and nourished food. In this regard she has produced Ambulance service bill. Though she has produced the Ambulance bill in proof of the same she has not examined the author of that bill. When the author of the bill has not been examined, the content of such bill cannot be said as true and it cannot be taken into consideration. However, considering the nature of injuries and duration of SCCH-11 14 MVC 4001/2015 hospitalization, I award a sum of Rs.30,000/- towards conveyance, food and nourished food.
17) According to the Petitioner she sustained fracture of second cervical vertebra and fracture of upper end of humerus and took treatment as inpatient. Considering the nature of injuries and duration of hospitalization she must have taken a rest for a period of 3 months. While discussing above, I have assessed the income of Petitioner at Rs.6,000/- per month. Under the circumstances, I award Rs.18,000/- towards loss of income during laid up period.
18) According to the Petitioner, she needs another surgery for the removal of the implants for which she has to incur huge amount. The doctor also stated that, the Petitioner requires another surgery for the removal of the implant and manipulation for the stiff shoulder for which she requires Rs.30,000/- approximately. But no estimation has been produced. In the absence of estimation, it cannot be said that, the Petitioner requires SCCH-11 15 MVC 4001/2015 Rs.30,000/- for implants removal. However, considering the nature of the injuries, I award Rs.10,000/- towards future medical expenses which shall not carry any interest.
19) Thus in all, the petitioner is entitled for compensation under different heads which is calculated as under:
1 Loss of earning capacity and Rs. 97,200/-
future income.
2 Pain and sufferings Rs. 50,000/-
3 Loss of amenities in life Rs. 20,000/-
4 Medical expenses Rs. 6,50,500/-
5 Conveyance, food and Rs. 30,000/-
nourished food 6 Loss of income during laid up Rs. 18,000/- period 7 Future medical expenses Rs. 10,000/-
Total Rs. 8,75,700/-
20) While discussing above, I have already come to the conclusion that, accident occurred due to the rash and SCCH-11 16 MVC 4001/2015 negligent driving of bus by its driver. When the accident occurred due to the rash and negligent driving of the bus by its driver which belongs to the respondent No.1, respondents, being the insurer and owner of the offending vehicle are liable to pay the compensation and respondent No.2 is liable to indemnify the liability of the respondent No.1 as the policy was inforce at the time of accident. Under the circumstances, I am of the opinion that, the respondent No.2 is liable to pay Rs.8,75,700/- to the petitioner along with interest at the rate of 6% per annum from the date of petition till its realization. So, I answer this issue in partly affirmative.
21) ISSUE No.4: In view of the findings given on the above said issues and reasons thereon, I proceed to pass the following:
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.SCCH-11 17 MVC 4001/2015
Accordingly, a sum of Rs.8,75,700/- is awarded to the petitioner as compensation with interest at the rate of 6% p.a from the date of petition till the date of realization.
Respondent No.1 and 2 are jointly and severally liable to pay the said compensation. In order to indemnify the petitioner, the respondent No.2 shall deposit the compensation amount within a period of 30 days from this day.
In case of deposit of the awarded compensation by the respondent No.2, 50% shall be deposited in F.D in the name of petitioner in any nationalized or scheduled bank for the period of 5 years, failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore.
Remaining 50% shall be released to the petitioner through account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-. SCCH-11 18 MVC 4001/2015 Office to draw award accordingly.
(Typed to my dictation by the stenographer, corrected and pronounced by me in open court on this 30th day of November, 2016.) (CHANDRASHEKARA.P.S.) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Manam Padmavathi
PW.2 - Dr. Nagaraj B.N
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of Complaint
Ex.P.1(a) - Translated copy
Ex.P.2 - True copy of F.I.R
Ex.P.3 - True copy of Charge sheet
Ex.P.4 - True copy of case diary
Ex.P.4(a) - Translated copy
Ex.P.5 - True copy of Statement
Ex.P.5(a) - Translated copy
Ex.P.6 - True copy of hand sketch map
Ex.P.7 - True copy of Wound certificate
Ex.P.8 - 28 Medical bills
Ex.P.9-23 - 15 X-rays
Ex.P.24 - Case sheet
SCCH-11 19 MVC 4001/2015
Ex.P.25 - X-rays and report
WITNESSES EXAMINED FOR RESPONDENTS :
- NIL -
DOCUMENTS MARKED FOR RESPONDENTS :
- NIL -
I ADDL.SCJ. & MACT.