Bangalore District Court
Sri.S.Ramana vs Sri.Basavaraja.C.S on 1 April, 2022
KABC020020382020
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M..,M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 1st day of April2022
MVC No.370/2020
PETITIONERS: Sri.S.Ramana,
S/o Shivaram,
Aged about 34 years,
R/at No.160/A, 3rd Main,
9th Cross, 3rd Block,
N.R.Muneshwara Temple,
Bengaluru560 028.
(By Sri.RMN., Adv.,)
V/s
RESPONDENTS: 1.Sri.Basavaraja.C.S.,
Sonappa.D,
No.50/N, 4th A Cross,
Opp Ayyappa Temple,
MV Extension, Hosakote Town,
SCCH4 2 MVC No.370/2020
Bengaluru562 114,
(Insured of car bearing Reg.No.
KA53MD4829)
(Exparte)
2. IFFCOTokio General
Insurance Company Ltd.,
"Sri Shanthi Towers"
5th Floor, 3rd Main, No.141,
East of NGEF Layout,
Kasturi Nagar,
Bengaluru East.
(Insurer of Car bearing Reg.No.
KA53MD4829)
(By Sri.SM., Adv.,)
JUDGMENT
The petitioner has filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident that occurred on 10.01.2020.
2. The petition averments in brief are as under:
On 10.01.2020 at about 8.50 p.m., while the petitioner was almost crossing the road KolarBengaluru SCCH4 3 MVC No.370/2020 NH75 Service road, near Silicon City Hospital, Hosakote Town, at that time the driver of the car bearing Reg.No.KA53MD4829 came in a rash and negligent manner with high speed from Lanco toll i.e., from Bengaluru towards Hosakote and dashed against the petitioner, due to sudden impact the petitioner was fallen down and sustained grievous injuries.
Immediately after the accident, the petitioner was shifted to Silicon City Hospital, wherein first aid treatment was given and thereafter shifted to People Tree Hospitals at Bengaluru wherein he was admitted as an inpatient. The petitioner has spent Rs.2,50,000/ towards treatment, medicines, conveyance and nourishment.
Prior to the date of accident, the petitioner was hale and healthy and he was working as driver and he was earning a sum of Rs.20,000/ per month. Due to the accidental injuries the petitioner cannot attend to his SCCH4 4 MVC No.370/2020 work, resulted in loss of earnings. The respondent No.1 is the owner and respondent No.2 is the insurer are jointly and severally liable to pay compensation to the petitioner. Hence prays to award compensation of Rs.15,00,000/ with interest.
3. After service of notice the respondent No.1 and 2 have entered appearance through their respective advocates and filed separate objection statement.
The respondent No.1 filed written statement admitting that he is the RC owner of the Car bearing Reg.No.KA53MD4829 and it has insured with 2nd respondent. The insurance policy was in force. The drive who drove the Car posses valid and effective driving license. Hence prays to dismiss the petition against him.
The respondent No.2 in his written statement admits the issuance of insurance policy to the vehicle bearing Reg.No.KA53MD4829 subjected to the terms SCCH4 5 MVC No.370/2020 and condition of the insurance policy. Further contended that, the alleged accident occurred due to sole negligence of the petitioner himself. The alleged accident took place on 10.01.2020 and the complaint is lodged on 11.01.2020 after lapse of one day from the date of alleged accident. The driver of the car was not holding valid and effective driving license as on the date of the accident. The respondent No.1 has knowing fully well that, the rider did not possess valid and effective driving license and willfully entrusted the vehicle to the said driver. Further denied that, age, avocation and income of the petitioner. The compensation claimed by the petitioner is highly excessive and exorbitant one. Hence, the respondent No.2 prays to dismiss the petition against it.
4. On the basis of the rival contention, the following issues are framed by this court:
1. Whether the petitioner proves that, he has sustained grievous in SCCH4 6 MVC No.370/2020 juries due to actionable negligent driv ing of car bearing Reg.No.KA53MD 4829 by its driver, in RTA took place on 10.01.2020 at about 8.50 p.m., on KolarBengaluru NH75 Service Road, near Silicon City Hospital, Hosakote Town Bengaluru?
2. Whether respondent No.2 prove that, the driver of Car bearing Reg.No. KA53MD4829 drove the same with out holding DL?
3. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4. What Order or Award?
5. In order to prove the claim petition, the petitioner is examined as P.W.1 and got marked the documents at Ex.P.1 to 13. One witness are examined as PW.2, through him Ex.P.14 and 15 documents are got marked. In spite of given sufficient opportunity the respondents did not choose to adduce their evidence.
Hence the evidence of respondent is taken as nil.
SCCH4 7 MVC No.370/2020
6. I have heard the arguments of counsel for both parties.
7. My findings on the above issues are as under.
Issue No.1 : Partly in the affirmative;
Issue No.2 : In the negative
Issue No.3 : Partly in the affirmative,
Issue No.4 : As per the final orders
for the following:
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the petitioner has filed his affidavit in lieu of chiefexamination, which is considered as P.W.1. In support of his case, he has produced certified copies of FIR, statement, spot mahazar, seizer mahazar, IMV report, notice issued under section 133 of IMV Act and reply issued by owner of the vehicle, wound certificate and charge sheet which are marked under Ex.P.1 to 8. As per these documents, Hosakote police have recorded the statement of petitioner while he was taking SCCH4 8 MVC No.370/2020 treatment at Silicon City Hospital on 11.01.2020. As per the statement on 09.01.2020, the petitioner was proceeding on his car bearing Reg.No.KA05AH0819 from Thirupathi to Bengaluru, while coming so near Silcon City Hospital on Hosakote road, the petitioner stopped his car to answer nature call, thereafter he was crossing the service road by that time, a Maruthi Car bearing Reg.No.KA53MD4829 came in a rash and negligent manner with high speed and hit the petitioner, due to which the petitioner sustained injury and admitted to Hospital.
9. After recording the statement of the petitioner, the police have registered FIR against the driver of the Car bearing Reg.No.KA53MD4829,thereafter the police have visited the place of the accident and also drawn spot mahazar as per Ex.P.3. As noted in the spot mahazar the accident is taken place in the middle of the tar road SCCH4 9 MVC No.370/2020 measuring 15 feet. During the course of investigation the police have seized the car bearing Reg.No.KA53MD 4829 vide Ex.P.4 seized mahazar. As noted in Ex.P.5 IMV report front portion of the car bearing Reg.No.KA53 MD4829 is damaged. The police have issued notice to respondent No.1 to furnish the documents of his vehicle and also furnish information as to who was riding the vehicle as on the date of the accident. After receipt of notice the respondent No.1 issued reply as per Ex.P.6. However, undisputed fact that, the petitioner himself was riding his car as on the date of the alleged accident. As per Ex.P.7 wound certificate issued by Silicon City Hospital, the petitioner took treatment as on the date of the accident and the injuries sustained by him were also noted in the wound certificate.
10. The jurisdictional police after completion of investigation have submitted charge sheet against SCCH4 10 MVC No.370/2020 Narayanaswamy K.M., driver of the car, for the of fences punishable under section 279, 337, 338 of IPC and 187 of IMV Act. The copy of charge sheet also produced under Ex.P.8. As per the charge sheet also on 10.01.2020 at 8.45 p.m., the accused Narayanaswamy K.M. being the driver of the car bearing Reg.No.KA53MD4829 drove the same in a rash and negligent manner with high speed near Silcon City Hospital on Bengaluru to Hosakote road. While the petitioner was crossing the road, the accused dashed to his vehicle to the petitioner due to which the petitioner sustained injuries. As per the Ex.P.9 discharge summary issued by Silcon City Hospital, the petitioner was admitted as an inpatient from 10.01.2020 and discharged on 11.01.2020. Subsequently he also admitted to People Tree Hospital from 11.01.2020 to 14.01.2020.
SCCH4 11 MVC No.370/2020
11. The respondent No.2 has, in the written statement has denied the involvement of the motor cycle in the alleged accident and further contended that, the accident is taken place due to fault of the petitioner himself. As mentioned in the Mahazar the accident is taken in the middle of the road. This document is not in disputed. The documentary evidence shows that the petitioner was crossing the road where there was no provision for crossing the road. This facts goes to show that there was negligence on the part of the petitioner also. There is no specific formula to ascertain the exact percentage of contributory negligence. In this regard I intend to rely up on a judgment in MFA No.2380/2016 in between Smt.Gangamma V/s Sri.Varadaraju and another wherein it has been held that, "Having regard to that situation and circumstances, the Division Bench held that the SCCH4 12 MVC No.370/2020 contributory negligence should be considered at 25%. However, in the latest decision in the case of Andrew Lucas (supra), the Division Bench has noticed this difference and held that in the normal circumstances, in National Highways, there are no zebra crossings. When a person is crossing the road and meets with an accident on a National Highway, the contributory negligence should be considered at 20% which would be appropriate.
Having regard to all the above decisions, this Court is of the considered opinion that the decision of the Tribunal imputing 50% as contributory negligence towards the deceased in the present case, cannot be countenanced. The contributory negligence is required to be assessed at 20%."
SCCH4 13 MVC No.370/2020 Keeping in view of the above citation along with the facts and circumstances of the case I will asses the contributory negligence of the petitioner at 20%.
12. The standard of proof in claim petitions like the present, is preponderance of provabilities. There are sufficient matériel evidence to show that accident was occurred due contributory negligence of driving of the vehicle belonging to respondent No.1 as well as petitioner. Accordingly, I answer issue No.1 partly in the affirmative.
ISSUE NO.2:
13. The respondent No.2 has taken up a defence that driver of the offending vehicle did not posses the valid and effective driving license. But this fact is not proved by 2nd respondent. Hence, I answer issue No.2 in the negative.
SCCH4 14 MVC No.370/2020
ISSUE No.3:
14. As already held herein above, the petitioner has proved that he has sustained injuries in RTA which is caused by the vehicle belonging to respondent No.1. Hence the petitioner is entitle for compensation.
15. According to the petitioner, he has sustained comminuted fracture of left clavicle middle 1/3rd shaft, head injury and other bleeding injuries of all over the body. As per Ex.P.9 discharge summaries issued by Silicon City Hospital, the petitioner was admitted to the hospital on 10.01.2020 and discharged on 11.01.2020 and another discharge summary issued by People Tree Hospital wherein the petitioner was admitted on 29.03.2021 and discharged on the same day.
To prove the nature of his injuries the petitioner has examined Doctor Nagaraj B.N. Orthopaedic Surgeon at Sai Ortho and dental Center as PW.2, though him, SCCH4 15 MVC No.370/2020 clinical notes and recent xrays are marked under Ex.P.14 and 15. Further PW.2 deposed that, the disability of the left arm at 28% and whole body disability at 9%.
The learned advocate for respondent No.2 has relied on the judgment of the Hon'ble high court of Karnataka, Bengaluru, in MFA No. 1602/2016 (MV), in the case of Jayanth Kumar.B v/s M.J.Mahesh, wherein it is held that, The doctor who issued the disability certificate is not the treated doctor. For the fracture of clavicle bone, the doctor has assessed the disability to an extent of 20% which is contrary to law. The clavicle bone is only an ornamental bone and the said fracture does not lead to any disability.
16. In the petition the petitioner has stated that, he has spent Rs.2,50,000/ towards medical and other expenses. Further, the petitioner has produced 11 SCCH4 16 MVC No.370/2020 medical bills at Ex.P.10 for Rs.1,26,384/. Looking to the injuries sustained and treatment taken by the petitioner and medical expenses, it is just and proper to award Global compensation of Rs.3,00,000/ As held earlier the petitioner has contributed negligence to the extent of 20%. Hence petitioner is not entitle for 20% of the compensation. The petitioner is entitle for 80% of the compensation which comes to Rs.2,40,000/. Hence issue No.3 is answered partly in the affirmative.
17. In this case, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. The respondent No.2 in its objection statement admitted the insurance to the Car bearing Reg.No.KA53MD4829. Hence, the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 insurance company shall SCCH4 17 MVC No.370/2020 indemnify the compensation on behalf of the respondent No.1.
18. This court, in earlier cases, was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.4:
19. For the foregoing reasons, I proceed to pass the following;
ORDER The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
SCCH4 18 MVC No.370/2020
The petitioner is entitled for total
compensation amount of Rs.2,40,000/ with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 shall deposit the compensation amount within 30 days from the date of this order.
Considering the quantum of amount awarded it is order to release the entire amount in favour of petitioner.
Advocate fee is fixed at 1,500/.
Draw up award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 1st day of April, 2022) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
SCCH4 19 MVC No.370/2020
ANNEXURE
List of witnesses examined for petitioners:
PW.1 Sri.Ramana PW.2 Dr.Nagaraj.B.N
List of documents marked on behalf of the petitioners:
Ex.P1 FIR Ex.P2 Statement recorded by police Ex.P3 Spot mahazar Ex.P4 Seizer mahazar Ex.P5 IMV report Ex.P6 Notice issued under section 133 of MV act and
reply issued by owner of the vehicle Ex.P7 Wound certificate Ex.P8 Charge sheet Ex.P9 Discharge summary Ex.P10 11 medical bills for Rs.1,26,384/ Ex.P11 3 Advance receipts Ex.P12 Notarized copy of driving license Ex.P13 Xray film Ex.P14 Clinical notes Ex.P15 Recent xray List of witnesses examined for Respondents:
NIL List of documents marked on behalf of the Respondents:
NIL XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.