Bangalore District Court
Who Tried To Cross The Road Without ... vs No.2 To An on 15 April, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 15th day of April, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3077/2014
Sri. Halappa Gubbi @ Halappa, ..... PETITIONER
S/o. Chikkappa,
Aged about 47 years,
Kengeri Krishnappa Building,
Near Shanimahathma Temple,
Thirupalya,
Bangalore.
(By Sri. Chandrashekar. M., Adv.,)
V/s
1. Pradeep.M., ..... RESPONDENTS
S/o. Manjunath. H.,
R/at No.E-32/A, 4th Cross,
Bazaar Street,
Neelasandra,
Shanthinagar,
Bangalore - 560 047.
(R.C. Owner of the Motor Cycle bearing
Registration No.KA-03-HT-4444)
2. Reliance General Insurance
Company Ltd.,
Centenary Building,
5th Floor, M.G. Road,
2 M.V.C.NO.3077/2014
(SCCH-7)
Bangalore - 01.
(Policy Cover Note No.214000000522,
Valid from 21.11.2013 to 20.11.2014)
(R1- By Sri. P. Puttaraju, Adv.,)
(R2- By Sri. A. N. Hegde, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 6,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 24.12.2013 at about 6.50 p.m., he was a pedestrian on Near Prestige Alpha building, Bangalore Main Road, Beratena Agrahara, Electronic City, Bangalore-96 and after carefully observing the vehicular movements, he was crossing the said road in near of Alpha Building, at that time, suddenly, the rider of Motor Cycle bearing Registration No.KA-03-HT-4444 came from Electronic City in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed as against him and caused the accident and due to which, he fell down and sustained grievous injuries all over the body.
3 M.V.C.NO.3077/2014(SCCH-7)
b) Immediately after the accident, he was shifted to Blossom Hospital, Bangalore, wherein, first aid treatment was given and X-rays were taken, the fracture were confirmed and refer to Live 100 Hospital, Singasandra, Bangalore - 68, wherein, he was treated as an inpatient from 24.12.2013 to 03.01.2014. During the Hospitalization, X-rays were taken, which revealed Comminuted Fracture left Clavicle, Open segmental fracture of right tibia, lacerated wound in right parietal region and other grievous injuries all over the body. Due to which, he underwent, wound debridement + IM nailing of segmental fracture of right tibia on 27.12.2013 and ORIF of left clavicle with and 7 holed locking plate under G.A. on 30.12.2013. After necessary treatment, he discharged with an advise for follow-up treatment, restricted fracture movement and for complete bed rest. As per the advise of the Doctors, he is still continuing follow-up treatment by hiring the vehicle and so far, he spent more than Rupees 1,00,000/- towards medical, conveyance, nourishment and other incidental charges, etc.,
c) The injuries sustained in the said accident have not united and is getting unbearable pain often. On account of the said injuries, he is completely bed ridden, he is getting head ache and giddiness, cannot lift or carry weight and undergoing deep mental shock, pain and sufferings, since the injuries caused are permanent in nature.
d) Prior to the date of accident, he was hale and healthy and was working as a Guard at G4S Secure Solutions (India) Pvt.
4 M.V.C.NO.3077/2014(SCCH-7) Ltd., Bangalore Region and earning a sum of Rupees 11,000/- per month. With the said earnings, he was maintaining her family members. Due to the injuries, he till today cannot attend to her work, resulted in loss of earnings and earning capacity and put to great financial hardship.
e) The accident occurred purely due to rash and negligent manner of riding of the rider of the Motor Cycle bearing Registration No.KA-03-HT-4444 and in this connection, the jurisdictional Electronic City Traffic Police have registered a case in their Crime No.243/2013, punishable under Section 279, 337 and 338 of IPC as against the said rider, for causing the accident.
f) The Respondent No.1 being the R.C. Owner of the said Motor Cycle bearing Registration No.KA-03-HT-4444, which caused the accident and the Respondent No.2 being the insurer, the policy was in force as on the date of accident, hence, the Respondents are jointly and severally liable to pay the compensation to him under all heads, including general and special damages. Hence, this petition.
3. Initially, though the notice was duly served on the Respondent No.1, he was remained absent and hence, he was placed as exparte on 17.09.2014. Later, as per the Order dated 15.11.2014 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.1 is taken on file. But, inspite of giving sufficient opportunities, the Respondent No.1 has not filed the written statement.
5 M.V.C.NO.3077/2014(SCCH-7)
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 04.04.2015 passed on I.A.No.II, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The Respondent insured has not been furnished with the particulars of the vehicle including the driving licence of the person, who was driving a vehicle and the cause for accident giving raise to the said petition. Without these particulars, insurer finds it difficult to submit an effective statement of objections. Since, these particulars are not immediately available, it is obliged to file this statement and hence, the statement is filed with liberty to file elaborate statement of objections on receipt of the material particulars and information referred to above. The insurer not admits having insured the vehicle involved in the accident. The insurer's liability is subject to the validity of DL and other documents referred to above. Owner of the vehicle failed to comply the provisions of M.V. Act under Section 134(c). This reason alone, the petition liable to be dismissed against it.
b) The concerned Police Authority has not complied the provisions under Section 158 of MV Act.
6 M.V.C.NO.3077/2014(SCCH-7)
c) Without prejudice to the above contention that, the alleged accident has occurred only due to the negligence of the claimant, who tried to cross the road without observing the oncoming vehicles and the claimant was trying to cross the road where there was no zebra crossing. The accident has occurred only due to the negligence of the claimant and no actionable negligence is attributable to the rider of the Motor Cycle. As the rider of the Motor Cycle was proceeding on the road following the traffic rules and regulations. The claimant himself was responsible for inviting the accident in as much as the claimant was without observing the inflow of the traffic on the road has tried to cross the road, wherein, there is no zebra crossing or any traffic signal. The fact that, the accident occurred towards the middle of the road would suggest that, the claimant himself contributed for the cause of the accident.
d) The claim for award of compensation of Rupees 6,00,000/- is exaggerated and unrelated to the injuries suffered by claimant and injuries are simple in nature to be noticed. It is obvious that, the claimant is trying to convert an unfortunate incident into a windfall.
e) It prays and reserves its right to amend its statement of objections and also take over the defence of the insured in the event of the owner does not contest the proceedings. As such, as enabled under Section 170 of M.V. Act, 1988, it may be permitted to contest the claim of the petition both in regard to actionable negligence and the quantum of compensation, if policy was valid 7 M.V.C.NO.3077/2014 (SCCH-7) on the date of accident. Besides, the attempts of the insurer to defend insured and avail all the defences are enabled by Condition No.2 of the policy. This Condition No.2 in the policy came to be incorporated in the contract of indemnity by reason of the observation of the Apex Court in Para 16 of AIR 1959 SC 1331.
f) In the event of this Hon'ble Court passing an award for compensation, the rate of interest shall not exceed 6% in view of the law declared by the Hon'ble High Court of Karnataka in Geetha's Case and reiterated in Jagadisha Case vide AIR 1972 SC 2466 and ILR 1990 Kar 4384 and ILR 2000 Kar 1098, ILR 2000 Kar 3809 and ILR 2001 Kar 493. Hence, prayed to dismiss the claim petition.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent riding of the Motor Cycle bearing Reg.No.KA-03-HT-
4444 by its rider and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
8 M.V.C.NO.3077/2014(SCCH-7)
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined 3 witnesses as P.W.2 to P.W.4 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.28. On the other hand, the Respondent No.2 has not adduced any evidence on its behalf.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Respondent No.2 Sri. A. N. Hegade has placed reliance upon the decisions reported in,
i) ILR 2004 KAR 1104 (Koosppa Poojari V/s. K. Sadabba and others), wherein, it is observed that, MOTOR VEHICLES ACT 1988(59/88)- SECTION 173 -(1)-
CONTRIBUTORY NEGLIGENCE- Claimant had crossed the road where he was not supposed to cross-HELD-Certain degree of contributory negligence will have to be attributed to him- If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident - Pedestrian has to share the negligence along with the driver'.
HELD:
It is the duty of the driver of the vehicle to keep a good look out. He must 9 M.V.C.NO.3077/2014 (SCCH-7) look out for other traffic which may be expected to be on the road in front of him, behind him or along side of him especially at cross roads, junctions and bends.
All the more so the driver of the vehicle ought to have been more prudent and circumspect while driving. But, it cannot be lost sight of the fact that, a duty is also case on the pedestrian and he should use due care and caution in going upon and crossing the road and it is his duty to lookout for oncoming traffic. In so far as the another duty case on the pedestrian is concerned, it is needless to say that, he has to give the driver a plenty of time in see and slow down and start before he attempts to cross or put one foot n the crossing.
Moreover, whenever a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, they cannot claim any specific precedence and the responsibility for causing the accident more often than not will have to be shared by the pedestrian along with the vehicle driver. In view of this, it cannot be said that, it was only the driver of the vehicle in question who was solely responsible for the accident. It has also to be noted that, there is no evidence forthcoming to show that, it was the pedestrian crossing or whether there were any zebra crossing. In view of the fact that the claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him.10 M.V.C.NO.3077/2014
(SCCH-7)
ii) ILR 1998 KAR 1934 (Sri.Narasimhaiah V/s. The General Manager and Another), wherein, it is observed that, MOTOR VEHICLES ACT 1939 (Central Act No.4 of 1939-Section 110D-
contributory negligence-Pedestrian crossing the road at a point where he ought not to have done-Tribunal held appellants negligence which contributed to the accident was 60 per cent- In Appeal the Court held that, it could be only 40 per cent.
The appellant in the case was a pedestrian who virtually walked into the path of the vehicle and got injured. There is a wrong motion which prevails that, the pedestrians have bring right to handle around to stroll on the roads according to their whims and fancies and that, even if they make every effort to get run over, that, the vehicle drivers are supposed to still try to save them. As been pointed out in this judgment that, the rules of the road required pedestrians to avoid strolling on to the road and that, the roads can be crossed only at the designated place. A breach of these rules immediately holds the pedestrian liable for negligence and if it is demonstrated that, the injury of death occurred due to the negligence of the pedestrian. The driver of the vehicle, the owner and the insurer would then be entitled to disclaim their liability. This is an aspect of the law that has been grossly over looked and which requires to be very clearly restricted and specifically brought to the notice public. The present accident took place on of the busy road in the city of 11 M.V.C.NO.3077/2014 (SCCH-7) Bangalore and evidence indicates that, people were indiscriminately walking about on the road virtually between the vehicle were moving regardless without any concern for safety. Where an pedestrian demonstrates suicidal tendencies behaving in this manner, he will be precluded holding other liable if he gets injured or killed and it is very necessary that, this message goes out loud and clear. In the present instance, where the driver of the vehicle and the injured appellant or both demonstrated to have been negligent. The first one for the manner, in which the truck was being driven and the second one was being crossed the road at a point he should not been done. This Court has evaluate the purpose of degrees of negligence for the purposes of deciding whether the injured should be entitled to compensation and if so, how much. The degree of negligence on the part of the pedestrian having been of a relaying lower order. The court has limited the compensation payable to the extent to the 60 of the amount computed.
In case of proven negligence, however, the compensation awarded could be much lower or even nothing at all. It is pathetic that, there is a virtually a zero level of traffic management in this city but, it is not too late for the department to make a beginning. The first step would be necessarily be through a virtually educative process whereby all persons using the roads from the drivers down to pedestrians are informed through a sustained media campaign as to what are the rules of the road, what is the discipline is require to be observed and above all. The penalties for breaching this would end up not only with the payment 12 M.V.C.NO.3077/2014 (SCCH-7) of heavy fines but, for the forfeiture of compensation in case of damage or injury. It is unfortunate to say the least that, this indiscipline has been permitted to grow to a level of uncontrollable chaos. If the union territory of Delhi the state of Maharastra, to name just two, have been able to bring about a semblance of order on their roads. There is no reason why it cannot be done in this state. The authorities will have to first shed their indolence, learn what their duties are and start doing them for a change.
It is difficult to make a fine distinction in cases relating to contributory negligence. I find it impossible to dispute the submission canvassed by Mr. Mahesh that, the appellant was guilty of contributory negligence by having attempted to cross a road at a point where he ought to not to have done but, the fact still remains, that, such incidence are not uncommon and how so ever wrongs the pedestrian may be, there is some expectations vice-a-
versa the driver of heavy vehicles that, hey must be extra cautions in ensuring that, they do not injure the pedestrian who commits such errors. The capability on the part of the driver of the offending vehicle is therefore slightly greeted than the appellant and in my considered view.
The ratio of 60:40 ought to be reversed in so far as the appellant can justifiably be held liable to be held liable to the extent of 40% and that therefore, be entitled to received 60% of the amount of Rupees 28,000/- which was originally computed.
13 M.V.C.NO.3077/2014(SCCH-7)
10. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
3,94,869/- with interest at
the rate of 8% p.a.
(excluding future medical
expenses of Rupees
10,000/-) from the date of
the petition till the date of
payment, from the
Respondent No.2 to an
extent of 75%.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 24.12.2013 at about 6.50 p.m., he was crossing N.H-7 Hosur Main Road, Beratenal Agrahara, Electronic City, Bangalore, carefully and cautiously by following all traffic rules and regulations and by observing the movements of the vehicles from East to West direction, i.e., towards Prestige Alpha Building and at that time, one Motor Cycle bearing Registration No.KA-03-HT-4444 ridden by its rider in a rash and negligent manner endangering to human life came at a high speed without following any traffic rules and regulations and without observing the movements of the pedestrians, who were 14 M.V.C.NO.3077/2014 (SCCH-7) crossing the road came from Electronic City towards Bangalore and dashed against him and due to the forced impact, he fell down and sustained grievous injuries and immediately after the accident, he was shifted to Blossom Hospital, Bangalore, wherein, he was given first-aid treatment and he was further shifted to LIVE 100 Hospital on 24.12.2013, wherein, he was treated as an inpatient and during hospitalization, X-rays were taken, which disclosed that, he had sustained comminuted fracture left clavicle, type II open segmental fracture of right tibia, injury to right leg and left shoulder, lacerated wound in right parietal region and other injuries. He has further stated that, the accident occurred is purely due to rash and negligent riding of the rider of the Motor Cycle bearing Registration No.KA-03-HT-4444 and in this connection, the jurisdictional Electronic City Traffic Police have registered a case in their Crime No.243/2013, punishable under Section 279, 337 and 338 of IPC as against the rider, for causing the accident.
12. To corroborate his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 MVI Report, Ex.P.5 Spot Sketch, Ex.P.6 Wound Certificate, EX.P.7 Charge Sheet, Ex.P.8 Discharge Summary, Ex.P.9 Admission/Discharge Certificate dated 10.01.2014, Ex.P.10 Certificate dated 21.07.2014, Ex.P.14 Order Sheet of C.C.No.639/2014, Ex.P.15 Plea recorded in C.C.No.639/2017, Ex.P.16 Statement relating to Halappa, Ex.P.17 Notice Under Section 133 of M.V. Act, and Ex.P.18 Reply to Notice under Section 133 of M.V. Act and through P.W.3, has also produced 15 M.V.C.NO.3077/2014 (SCCH-7) Ex.P.22 Inpatient Case Sheet, Ex.P.23 X-ray films 3 in numbers and Ex.P.24 Medico Legal Case Register and through P.W.4 has also produced Ex.P.26 Inpatient Record and Ex.P.28 Inpatient Record, which clearly disclosed that, the offending Motor Cycle bearing Registration No.KA-03-HT-4444 was dashed to the Petitioner, when he was crossing the road and the said accident was taken place due to negligence on the part of the rider of the said offending Motor Cycle and due to the said impact, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 24.12.2013 to 03.01.2014, i.e., for 11 days and from 09.01.2014 to 10.01.2014, i.e., for 2 days, he took treatment to the said accidental injuries at LIVE 100 Hospital and from 15.07.2014 to 21.07.2014, i.e., for 7 days and from 08.04.2014 to 22.04.2014, i.e., for 15 days, he took treatment to the said accidental injuries at Nanjappa Hospital, Shivamogga, totally, for 35 days, he took treatment to the said accidental injuries.
13. The P.W.1 has further stated in his cross-examination that, initially, he was shifted to Blossom Hospital and his son lodged a complaint before the Police and the public told his son about the offending vehicle and he was admitted as an inpatient in LIV 100 Hospital for 15 days and he had fracture on his left hand and right leg.
14. It is also clear from the contents of Ex.P.7 Charge Sheet that, after thorough investigation, the Investigating Officer has filed a charge sheet as against the rider of the offending Motor 16 M.V.C.NO.3077/2014 (SCCH-7) Cycle bearing Registration No.KA-03-HT-4444 for the offences punishable under Section 279 and 338 of IPC.
15. But, only based on the said oral version of P.W.1 as well as the contents of the above said Police and medical documents, it cannot be believed and accept the case made out by the Petitioner that, the entire negligence is on the part of the rider of the offending Motor Cycle bearing Registration No.KA-03-HT- 4444 and there was no negligence on his part in the commission of the said road traffic accident, as, the Petitioner in his examination-in-chief itself has clearly stated that, at the time of accident, he was crossing N.H-7 Hosur Main Road, Beratenal Agrahara, Electronic City, Bangalore and he has further clearly stated in his cross-examination that, there was no signal in the accidental place and there was no pedestrian cross in the accidental place and before the accident, he had not seen the offending Motor Cycle. Further, Ex.P.5 Spot Sketch clearly disclosed that, at the time of accident, the Petitioner was proceeding on the road, which was 11 feet away from the left side foot path and the same has been clearly admitted by P.W.1 in his cross-examination. Furthermore, in the above said all the Police documents, it is clearly mentioned that, at the time of accident, the Petitioner was crossing the road, where there was no pedestrian or zebra cross for the pedestrian to cross the road. From this, it appears that, the contributory negligence is also attributed on the part of the Petitioner in the commission of the said road traffic accident while he was crossing the said road at the time of accident to some extent. When there was no pedestrian 17 M.V.C.NO.3077/2014 (SCCH-7) or zebra cross on the road to cross the pedestrian, it is up to the Petitioner not to cross on the accidental road, where there was no pedestrian or zebra cross and there was no signal to cross the pedestrian. Further, it is also up to the rider of the offending Motor Cycle to observe the pedestrians, who were proceeding on the accidental spot and if he had taken a little care while riding the offending Motor Cycle at the time of accident, he could have avoided the said road traffic accident, which caused to the Petitioner, when he was crossing the accidental road, where there was no pedestrian or zebra cross. Further, it is clear from the contents of Ex.P.14 Certified Copy of Order Sheet in C.C. No.639/2014 and Ex.P.15 Certified Copy of Plea recorded in C.C.No.639/2014 that, the rider of the offending Motor Cycle had pleaded guilty for the offences punishable under Section 279 and 338 of IPC and paid fine. From this, it appears that, both the Petitioner and the rider of the offending Motor Cycle were neglected to move on the accidental road and due to their negligence itself, the said road traffic accident was taken place. Hence, it is necessary to attribute contributory negligence on the part of both the Petitioner and the rider of the Motor Cycle in the commission of the said road traffic accident.
16. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the son of the Petitioner has lodged Ex.P.2 Complaint before the Electronic City Traffic Police as against the rider of the offending Motor Cycle bearing Registration No.KA-03- HT-4444 by alleging that, when his father was crossing the main road near Prestige Alpha Building, Beratena Agrahara, Electronic 18 M.V.C.NO.3077/2014 (SCCH-7) City at 6.50 p.m., the offending Motor Cycle bearing Registration No.KA-03-HT-4444 came with very high speed, rash and negligent manner by its rider on N.H-7 Road from Electronic City towards Bangalore and dashed to his father and due to the said impact, his father had sustained grievous injuries on his right leg and head and he was admitted at Blossom Hospital and as such, he prayed to take necessary legal action as against the rider of the Motor Cycle and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the rider of Motor Cycle for the offences punishable under Section 279 and 338 of IPC under Crime 243/2013. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the son of the Petitioner in respect of the said road traffic accident, which cause to the Petitioner.
17. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 MVI Report and Ex.P.5 Spot Sketch further clearly disclosed that, the offending Motor Cycle bearing Registration No.KA-03-HT-4444 as well as its rider are very much involved in the said road traffic accident, which dashed to the Petitioner, when he was crossing the main road. The damages caused to the said offending Motor Cycle shown in Ex.P.4 disclosed the terrific impact of the said road traffic accident. It is further clear from the contents of Ex.P.4 MVI Report that, the said accident was not occurred due to any mechanical defects of the said Motor Cycle. It is also clear from the contents of Ex.P.5 Spot Sketch that, the Petitioner had already crossed 19 ft road and only 11 feet road was left to him to cross the road and the accidental road was a high way, i.e., Bangalore 19 M.V.C.NO.3077/2014 (SCCH-7) Main Road. If the Petitioner could not have been crossing the said Highway, where there was no pedestrian or zebra cross, the accident could not have been occurred to him by the Motor Cycle bearing Registration No.KA-03-HT-4444. From this, it is further made crystal clear that, the contributory negligence is also attributed on the part of the Petitioner in the commission of the said road traffic accident to some extent and if the rider of the offending Motor Cycle could have taken a little care while riding the said Motor Cycle in the accidental spot, he could have avoided the said road traffic accident, which caused to the Petitioner.
18. The contents of Ex.P.6 Wound Certificate disclosed that, with the alleged history of road traffic accident, which caused on 24.12.2013 at 7.15 p.m., near Sai Garments, Hosur Road, the Petitioner was brought to LIVE 100 Hospital and on examination, it is found that, he sustained 3 grievous injuries, i.e., lacerated wound in right parietal region, type II segmental fracture of right tibia and comminuted fracture of left clavicle and by admitting as an inpatient from 24.12.2013 to 03.01.2014, he took treatment to the said accidental injuries in the said Hospital.
19. The contents of Ex.P.8 Discharge Summary and Ex.P.22 Inpatient Case Sheet further clearly disclosed that, by admitting as an inpatient from 24.12.2013 to 03.01.2014, i.e., 11 days, he took treatment to the said accidental injuries at LIVE 100 Hospital.
20. The contents of Ex.P.9 Admission/Discharge Certificate dated 10.01.2014 further clearly disclosed that, the 20 M.V.C.NO.3077/2014 (SCCH-7) Petitioner was also admitted in the said Hospital from 09.01.2014 to 10.01.2014, i.e., 2 days, to take treatment to the said accidental injuries.
21. The contents of Ex.P.10 Certificate dated 21.07.2014 further clearly disclosed that, again the Petitioner was admitted in Nanjappa Hospital, Shivamogga, to take treatment to the said accidental injuries and he took treatment in the said Hospital from 15.07.2014 to 21.07.2014, i.e., 7 days. The same is also clear from the contents of Ex.P.26 Inpatient Record.
22. The contents of Ex.P.28 Inpatient Record further clearly disclosed that, again the Petitioner was admitted in Nanjappa Super specialty Hospital, Shivamogga, to take treatment to the said accidental injuries and was admitted from 08.04.2014 to 22.04.2014, i.e., 15 days, he took treatment to the said accidental injuries.
23. From the above said medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient totally for 36 days, he took treatment to the said accidental injuries in LVI 100 Hospital and Nanjappa Super Specialty Hospital, Shivamogga.
24. The contents of Ex.P.7 Charge Sheet further disclosed that, when the Petitioner was crossing the main road, on 24.12.2013 at 6.50 p.m., i.e., N.H-7, Hosur Road, near Alpha Building, Beratenal Agrahara, Electronic City, the rider of the 21 M.V.C.NO.3077/2014 (SCCH-7) offending Motor Cycle bearing Registration No.KA-03-HT-4444 came with very high speed, rash and negligent manner by its rider, which dashed to the Petitioner and due to the said impact, the Petitioner fell down and sustained grievous injuries and as such, the Investigating Officer has filed a charge sheet as against the rider of the said offending Motor Cycle for the offences punishable under Section 279 and 338 of IPC. It is also clear from the contents of Ex.P.7 Charge Sheet that, at the time of accident, the Petitioner was crossing the road where there was no pedestrian or zebra cross or there was no signal to cross the said road.
25. From the above said material evidence, both oral and documentary, it is clearly proved that, the contributory negligence is attributed both on the part of the Petitioner and the rider of the said offending Motor Cycle in the commission of the said road traffic accident and the offending Motor Cycle bearing Registration No.KA-03-HT-444 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries. Since, the Petitioner had almost crossed the road and if the rider of the offending Motor Cycle could have taken a little care, he could have avoided the said road traffic accident and since the Petitioner was crossing the road at the time of accident, where there was no pedestrian or zebra cross or no traffic signal, this Tribunal feels that, it is necessary to attribute the contributory negligence on the part of the Petitioner and the rider of the offending Motor Cycle to an extent of 25% and 75% respectively, which is acceptable one. Based on the same, it 22 M.V.C.NO.3077/2014 (SCCH-7) can be safely held that, 25% contributory negligence is attributed on the part of the Petitioner and 75% contributory negligence is attributed on the part of the rider of the Motor Cycle in the commission of the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries. Accordingly, I answered Issue No.1 partly in the Affirmative.
26. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. Further, there is discrepancy in mentioning the actual age of the Petitioner at the time of accident. However, in the medical documents, the age of the Petitioner is shown as 47 years. Hence, the age of the Petitioner is considered as 47 years at the time of accident.
27. The P.W.1 has stated that, prior to the date of accident, he was hale and healthy and was working as a Security Guard at G4S Secure Solutions (India) Private Ltd., Bangalore Region and earning a sum of Rupees 9,353/- per month. In this regard, the Petitioner has produced Ex.P.11 Letter dated 05.01.2015 issued by his employer, which disclosed that, the Petitioner is working in G4S Secure Solutions(India) Private Ltd., as a Security Guard from 17.06.2009 and his last drawn wages is of Rupees 9,353-93. The P.W.4 in his cross-examination has stated that, the Petitioner was having ESI facility and if the Petitioner is having ESI facility, has taken treatment in their Hospital, his entire medical expenses can be recovered from the ESI. He has further stated that, the entire medical expenses relating to the Petitioner is paid by ESI in 23 M.V.C.NO.3077/2014 (SCCH-7) two times. On perusal of the said evidence of P.W.1 and P.W.4 as well as the contents of Ex.P.11 Letter, it clearly goes to show that, the Petitioner was an employee in the said Company. No doubt the Petitioner has not examined its employer to consider his income at the time of accident. But, it no way affects to consider the case of the Petitioner, as, this Tribunal has already observed that, the Petitioner was an employee at the time of accident. Further, the last drawn wages of the Petitioner shown in Ex.P.11 is not an exorbitant and unreasonable. Hence, the income of the Petitioner is considered as Rupees 9,343-53 at the time of accident.
28. The P.W.1 has stated that, on 27.02.2013, he underwent wound debridement + IM nailing of segmental fracture of right tibia and on 30.12.2013, he underwent ORIF of left clavicle with 7 holed locking plate under G.A and he was discharged on 03.01.2014 with an advise of regular follow-up treatment and medications. He has further stated that, he got admitted to the said Hospital on 09.01.2014 as he was suffering from unbearable pain and after treatment, he was discharged on 10.01.2014 with an advise of complete bed rest and medications. The P.W.1 in his cross-examination has also clearly stated that, he had taken follow-up treatment 3 times in a month and he had taken treatment at Nanjappa Hospital 15 days back.
29. Based on the contents of Ex.P.6 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.9 Admission/Discharge Certificate, Ex.P.10 Certificate and Ex.P.26 and Ex.P.28 Inpatient Records, this Tribunal has already observed and come to the 24 M.V.C.NO.3077/2014 (SCCH-7) conclusion that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries, i.e., lacerated wound in right parietal region, Type II segmental facture of right tibia, comminuted fracture of left clavicle and by admitting as an inpatient from 24.12.2013 to 03.01.2014, i.e., for 11 days and from 09.01.2014 to 10.01.2014, i.e., for 2 days, he took treatment to the said accidental injuries at LIVE 100 Hospital and from 15.07.2014 to 21.07.2014, i.e., for 7 days and from 08.04.2014 to 22.04.2014, i.e., for 15 days, he took treatment to the said accidental injuries at Nanjappa Hospital, Shivamogga, totally for 35 days, he took treatment to the said accidental injuries. It is also clear from the contents of the said medical documents that, during the course of treatment, the Petitioner underwent wound debridement + IMIL nailing + IM nailing of segmental fracture of right tibia and on 30.12.2013, he underwent ORIF of left clavicle with 7 holed locking plate under G.A and on 15.07.2014 and the said implants are removed from the fracture site of the Petitioner. On perusal of the nature of the said accidental injuries, line of treatment and length of treatment, it clearly goes to show that, the Petitioner had required the regular follow-up treatment to the said accidental injuries as per the advise of the treated Doctors. Therefore, the evidence of P.W.1 and P.W.2 in respect of taking follow-up treatment to the said accidental injuries can very well be believed and accept.
30. The P.W.1 has stated that, the injuries sustained in the said accident have not healed and he is suffering from unbearable pain often and on account of the said injuries, he was completely 25 M.V.C.NO.3077/2014 (SCCH-7) bed ridden and undergoing deep mental shock and he is unable to lift or carry any weight, cannot do the day to day activities, since the injuries caused are permanent in nature. He has further stated that, due to the accidental injuries, he cannot attend his work till today and due to which, he lost his earnings and earning capacity as prior to the accident and he is put to great financial hardship.
31. The P.W.2 has stated that, recently, he examined the Petitioner on 26.02.2016 exclusively for disability assessment and on clinical examination, he found the disabilities, such as, difficult to stand and bear weight on right leg, cannot sit cross legged, squat, use Indian toilet, difficulty to climb up and down stairs, difficulty to walk on the slope, difficulty to walk on plain surface, difficulty to knee and always limps and walks slowly with the support of the stick, wounds are present in right leg about 2 in numbers, which are the actively discharging sinuses, which indicate the presence of active infection deep inside the bone, namely, chronic osteomyelities, which is either very difficult to or cannot be eradicated. He has further stated that, it can be controlled with appropriate antibiotics after culture and sensitivity test of the pus sample from the wound once in every few months. He has further stated that, one wound is present in upper third of right leg and second is present in lower one third of the leg, antibiotics to be used are expensive and to be used repeatedly and that, too for a long duration, requires periodic cleaning and dressing of the wound, otherwise it is foul smelling. By considering the range of movement in respect of right knee joint, 26 M.V.C.NO.3077/2014 (SCCH-7) right ankle joint and loss of power of muscle, acting around right knee joint and right ankle joint and restriction of movement of left shoulder and loss power of muscle acting around left shoulder joint, the P.W.2 has opined that, the disability of right lower limb is 43.09% and 22% of whole body and disability of left shoulder girdle is 6.65% to whole body and totally whole body disability if 28.65%. He has further stated that, disability arising due to fracture non-union and implant failure of left clavicle, 8 cms surgical scars present over left clavicle and radiological examining revealed fracture of right tibia shows partial union with implants in situ, fracture of fibula shows non-union, fracture of left clavicle shows non-union with implants in situ, which is broken into 2 pieces, leading to implants failure. He has further clearly stated that, the Petitioner suffering from permanent residual physical disability of about 28.65% of whole body. Further, the P.W.2 in his cross-examination has stated that, the Petitioner has reached maximum stage of recovery and hence, physiotherapy treatment is not required for restriction of movements relating to knee and if the clavicle fracture is untied properly, as per the medical guidelines, there is no disability to clavicle. The P.W.2 has produced X-ray Films.
32. But, based on the said oral version of P.W.1 and P.W.2 coupled with the contents of the above said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent residual physical disability of about 28.65% to whole body, as, the P.W.2 is not a treated Doctor. Further, neither the Petitioner nor the P.W.2 27 M.V.C.NO.3077/2014 (SCCH-7) produced the disability certificate. Further, the P.W.2 has not specifically assessed both physical and functional disability of the Petitioner, which is arising out of the said accidental injuries. Further, the P.W.2 in his cross-examination has clearly stated that, before assessment of disability of the Petitioner, he has not consulted the treated Doctors relating to LIVE 100 Hospital and Nanjappa Hospital. Further, the Petitioner has not produced any authenticated documents issued by his employer to show that, after the accident, the Petitioner had left the job as he is unable to do the said job due to the accidental injuries and the disability and difficulty caused to him due to the said accidental injuries. Even, the Petitioner has not examined his employer to show his inability to continue the same job in the said Company. Hence, the said extent of permanent disability of about 28.65% to whole body as stated by the P.W.2 cannot be believed and accept.
33. However, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient totally for 30 days, he took treatment to the said accidental injuries and he was 47 years old at the time of accident and at the time of accident, he was working as a Security Guard as per Ex.P.11 Letter issued by his employer, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 15% to the whole body, which 28 M.V.C.NO.3077/2014 (SCCH-7) is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
34. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 15%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 15%.
35. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 47 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 13.
36. As the Petitioner is suffering from permanent physical and functional disability of 15% to the whole body. The income of the Petitioner is already considered as Rupees 9,353-93 per month. Therefore, the loss arising out of the said 15% disability for monthly income of Rupees 9,353-93 by applying multiplier 13 comes to Rupees 2,18,881-96, i.e., (Rs.9,353-93 x 12 x 13 x 15%), which is rounded off Rupees 2,18,882/- to the Petitioner.
37. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 3 grievous injuries. The Petitioner was in the Hospital as an inpatient from 24.12.2013 to 03.01.2014, i.e., for 11 days, from 09.01.2014 to 10.01.2014, i.e., for 2 days, from 15.07.2014 to 21.07.2014, i.e., for 7 days and 29 M.V.C.NO.3077/2014 (SCCH-7) from 08.04.2014 to 22.04.2014, i.e., for 15 days, totally for 35 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 75,000/- towards pain and suffering.
38. As it is already observed that, the age of the Petitioner was 47 years. He has to lead remaining his entire life with 15% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
39. The Petitioner had sustained 3 grievous injuries and he was in the Hospital as an inpatient for 35 days and he could not do any work at least for 4 months and thereby, he deprived the income. Further, the P.W.1 in his cross-examination has clearly stated that, his employer has not yet paid the benefits of medical leave. Therefore, at the rate of Rupees 9,353-93 per month, a sum of Rupees 37,415-72, which is rounded off Rupees 37,416/- is awarded towards loss of income during the laid up period.
40. The P.W.1 has stated that, so for, he has spent more than Rupees 1,00,000/- towards medical, conveyance, nourishment and other incidental charges, etc. In this regard, the Petitioner has produced Ex.P.12 Medical Bills 25 in numbers, which is amounting of Rupees 11,571/- and Ex.P.13 Medical Prescriptions 3 in numbers. No doubt, the P.W.1 in his cross- examination has stated that, after the accident, the said company 30 M.V.C.NO.3077/2014 (SCCH-7) has reimbursed the medical expenses under ESI facility, which was about Rupees 30,000/- - Rupees 40,000/-. But, Ex.P.12 Medical Bills are original bills and they are relating to the medicines and the amount covered under Ex.P.12 Medical Bills is not included in the credit bill, which is available in Ex.P.26 Inpatient Record. Therefore, the amount covered under Ex.P.12 Medical Bills can very well be taken into for consideration. The Petitioner has taken treatment at Live 100 Hospital and Nanjappa Super Specialty Hospital, Shimoga, wherein, he was taken treatment as an inpatient from 24.12.2013 to 03.01.2014, i.e., for 11 days, from 09.01.2014 to 10.01.2014, i.e., for 2 days, from 15.07.2014 to 21.07.2014, i.e., for 7 days and from 08.04.2014 to 22.04.2014, i.e., for 15 days, totally for 35 days. Considering the nature of the injuries and line of treatment given to the Petitioner and the length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 11,571/- to the Petitioner.
41. The P.W.1 has not stated anything about the future medical assistance and its expenses. The P.W.2 has stated that, the Petitioner is undergo two more operations, i.e., correction of non-union of fracture of left clavicle removal of broken implants and fixing with new implants and bone grafting and implants removal from right tibia after controlling bone infection and after achieving complete union at fracture site. It is clearly mentioned in the above said medical records that, the Petitioner undergone operation of interlocking nailing for fracture of right tibia and 31 M.V.C.NO.3077/2014 (SCCH-7) plating fracture of left clavicle and tibia fracture with interlocking nail and infection. Further, the P.W.2 has clearly stated that, radiological examination revealed that, fracture of right tibia shows partial union with implants in situ, fracture of fibula shows non-union and fracture of left clavicle shows non-union with implants in situ, which is broken into 2 pieces, leading to implants failure. From this, it appears that, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/- to the Petitioner.
42. As the Petitioner was taken treatment as an inpatient for 35 days, it is necessary to award a sum of Rupees 6,000/- towards conveyance charges, Rupees 6,000/- towards attendant charges and Rupees 10,000/- towards food, nourishment and diet charges etc.,
43. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. arising out of 15% Rs. 2,18,882-00 Disability
2. Pain and sufferings Rs. 75,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 37,416-00 up period
5. Actual medical expenses Rs. 11,571-00
6. Future medical expenses Rs. 10,000-00 32 M.V.C.NO.3077/2014 (SCCH-7)
7. Conveyance Rs. 6,000-00
8. Attendant Charges Rs. 6,000-00 Food, Nourishment &
9. Rs. 10,000-00 Diet charges TOTAL Rs. 3,94,869-00
44. In all, the Petitioner is entitled for total compensation of Rupees 3,94,869/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment.
45. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Motor Cycle bearing Registration No.KA-03-HT-4444 as well as its rider are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries and 25% contributory negligence is attributed on the part of the Petitioner and 75% contributory negligence is attributed on the part of the rider of the Motor Cycle in the commission of the said road traffic accident. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an insurer of the offending Motor Cycle bearing Registration No.KA-03-HT-4444 and its Policy Cover Note No.214000000522, valid from 21.11.2013 to 20.11.2014. The Respondent No.2 in its written statement has not admitted about the issuance of Insurance Policy in favour of the Respondent No.1 relating to the said offending Motor Cycle bearing Registration No.KA-03-HT- 4444. But, it is clear from the contents of Ex.P.17 Notice under Section 133 of M.V. Act and Ex.P.18 Reply to Notice under Section 33 M.V.C.NO.3077/2014 (SCCH-7) 133 of M.V. Act that, at the time of accident, the Respondent No.1 was a R.C. owner and the Respondent No.2 was an insurer of the offending Motor Cycle bearing Registration No.KA-03-HT-4444 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled as against the rider of offending Motor Cycle by the Investigating Officer in Ex.P.7 Charge Sheet that, he was not having a valid and effective driving licence to ride such class of offending Motor Cycle at the time of accident. Even, the Respondent No.2 has not proved the violation of the terms and conditions of Insurance Policy by the Respondent No.1. Further, the Respondent No.2 though has filed the written statement to contest the case of the Petitioner, it has not adduced any evidence on its behalf. Further, thought the Respondent No.1 has appeared before this Tribunal through his Learned Counsel, inspite of giving sufficient opportunities, he has not filed the written statement to contest the case of the Petitioner. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being an insurer of the offending Motor Cycle bearing Registration No.KA-03-HT-4444, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. It is pertinent to note here that, while answering Issue No.1, this Tribunal has already come to the conclusion that, there is contributory negligence of 25% on the part of the Petitioner and 75% on the part of the rider of offending Motor Cycle. Hence, the Respondents No.1 and 2 are liable to pay 75% of the above said compensation and interest to the Petitioner. Since the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. In view of the above said reasons, the principles enunciated in the 34 M.V.C.NO.3077/2014 (SCCH-7) decisions cited by the Learned Counsel appearing for the Respondent No.2 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
46. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 3,94,869/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.2 to an extent of 75%.
The Respondent No.2 shall deposit the said 75% compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 75% shall 35 M.V.C.NO.3077/2014 (SCCH-7) be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 15th day of April, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. Halappa Guabbi @ Halappa P.W.2 : Dr. S. Ramachandra P.W.3 : Sri. Chandrashekar P.W.4 : Sri. Prasanna Kumar. H. D. 36 M.V.C.NO.3077/2014 (SCCH-7)
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR Ex.P.2 : True copy of Complaint Ex.P.3 : True copy of Spot Panchanama Ex.P.4 : True copy of MVI Report Ex.P.5 : True copy of Spot Sketch Ex.P.6 : True copy of Wound Certificate Ex.P.7 : True copy of Charge Sheet Ex.P.8 : Discharge Summary Ex.P.9 : Admission/Discharge Certificate dated 10.01.2014 Ex.P.10 : Certificate dated 21.07.2014 Ex.P.11 : Letter dated 05.01.2015 Ex.P.12 : Medical Bills (25 in nos.) Ex.P.13 : Medical Prescriptions (3 in nos.) Ex.P.14 : Certified copy of Order Sheet of C.C.No.639/2014 Ex.P.15 : Certified copy of Plea Recorded in C.C.No.639/2014 Ex.P.16 : Certified copy of Statement relating to Halappa Ex.P.17 : Certified copy of Notice under section 133 of M.V. Act Ex.P.18 : Certified copy of Reply to Notice under Section133 of M.V. Act Ex.P.19 : Outpatient Card Ex.P.20 : X-ray Film Ex.P.21 : Authorisation Letter dated 12.08.2015 Ex.P.22 : Inpatient Case Sheet Ex.P.23 : X-ray films (3 in nos.) Ex.P.24 : True copy of Medico Legal Case Register Ex.P.25 : Authorisation Letter dated 09.09.2015 Ex.P.26 : Inpatient Record Ex.P.27 : Authorisation Letter dated 23.11.2015 Ex.P.28 : Inpatient Record
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-37 M.V.C.NO.3077/2014
(SCCH-7)
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.