Bangalore District Court
Dara Narayana @ Narayana Dhara vs Vemala Penchalaiah on 13 July, 2021
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 13th DAY OF JULY 2021
PRESENT : Smt. PRABHAVATHI M. HIREMATH,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.
M.V.C. No. 4794/2019
PETITIONER: Dara Narayana @ Narayana Dhara,
S/o. Lakshmaiah,
Aged about 37 years,
R/at. No.61141,
Harijana Wada,
Naidupeta,
Nellore.
(By Sri .Mohan Babu P. Advocate)
V/s
Respondents: 1. Vemala Penchalaiah,
S/o.Penchalaiah,
R/at No.612576,
Lothuvanigunta,
L.A.Sagaram,
Naidupeta, Nellore.
Andhra Pradesh524 126.
(R.C.Owner of Autorickshaw
bearing Reg.No.AP26TD1796)
...Exparte
SCCH-1 2 MVC No.4794/2019
2. The United Insurance Co.Ltd.,
Regional Office,
Motor Third Party Claims Hub,
5th & 6th Floor,
Krushi Bhavan,
Hudson Circle,
Bangalore.
(Insurer of Autorickshaw bearing Reg.
No.AP26TD1796)
Policy No.1512813116P100869369
Valid from 20.04.2016 to 19.04.2017
(By Sri. Sunil Kumara K.N, Advocate)
*******
JUDGMENT
This petition is filed under Section 166 of the of the Motor Vehicles Act, 1989 for awarding compensation of Rs.30,00,000/ with interest and costs for the injury sustained by the petitioner in the Road Traffic Accident.
2. The brief facts of the petition are as follows:
On 13.12.2016 at about 8.30 p.m., the petitioner was travelling in an autorickshaw bearing No.AP26 TD1796 from Naidupet from Kota side, at that time infront of the autorickshaw one pig came across the SCCH-1 3 MVC No.4794/2019 road, to avoid pig, suddenly the Autorickshaw was taken aside by the driver as vehicle was in high speed the Autorickshaw turn turtle. The petitioner along with other inmates of the Autorickshaw sustained grievous injuries.
3. After the accident, he was shifted to Simhapuri Hospital, Nellore and he has taken treatment as an inpatient from 13.12.2016 to 21.12.2016 . Petitioner underwent operation left tibia ORIF with plating in left zygomatic fracture on 15.12.2016. After discharge from the hospital also he has taken follow up treatment by spending a sum of Rs.3,50,000/. At the time of accident, he was aged 37 years and earning Rs.20,000/p.m. by doing mason work.
4. Due to the injuries sustained by the petitioner in the accident he is permanently disabled , unable to walk, sit, squat and he lost his earnings. Due to negligent act of the driving on the part of the Autorickshaw driver accident occurred . Therefore, respondent No.1 being the owner of the Autorickshaw , SCCH-1 4 MVC No.4794/2019 respondent No.2 being the insurer of the Autorickshaw are jointly and severally liable to pay the compensation. Therefore, the compensation of Rs.30 lakhs with 12% only is claimed in this petition.
5. After service of notice of this petition, respondent No.1 remained absent and placed exparte.
6. Respondent No.2 appeared through his Advocate and filed objections as under:
The entire averments in the petition are denied in toto by stating that petitioner is put to strict proof of the same. Issuance of policy as on the alleged date of accident is admitted. It is specifically contended that the respondent No.1 has not complied with the mandatory requirement under Section 134(c) and 158(6) of M.V.Act. The liability of the respondent No.2 is subject to the terms and conditions of the policy. As per the case of the petitioner accident occurred on 13.12.2016, there is delay in lodging complaint, there is no accident as alleged, in collusion with the first respondent false complaint is lodged after 2 days. The SCCH-1 5 MVC No.4794/2019 petitioner was residing at Andra Pradesh, respondent No.1 is residing at Andra Pradesh, accident occurred at Andra Pradesh and insurance company which issued policy is working at Andra Pradesh, hence, this Tribunal has no jurisdiction to try the petition. The averments regarding the rash or negligent driving on the part of Autorickshaw driver is denied. The compensation claimed is very exorbitant. The income and age of the petition is denied and prayed to dismiss the petition.
7. From the above said pleadings of the parties following issues have been settled for trial by my predecessor in office.
1. Whether the Petitioner proves that he sustained injuries in a Motor Vehicle Accident that occurred on 13.12.2016 at about 08.30 p.m. , near Thummuru village, Naidupet, Nellore District, within the jurisdiction of Naidupeta Police Station on account of rash and negligent driving of the Autorickshaw bearing registration No.AP26 TD1796 by its driver when the petitioner was travelling in the said Autorickshaw ? SCCH-1 6 MVC No.4794/2019
2. whether the respondent No.2 proves that this Tribunal has no jurisdiction to try the claim petition ?
3. Whether the petitioner is entitled for compensation? If so, how much and from whom?
4. What order?
8. In support of the petitioner's case petitioner himself examined as PW1, doctor is examined as PW2 and got marked in all 11 documents as Ex.P.1 to P.11. On behalf of respondent No.2's case they have not adduced any oral evidence and policy copy is produced along with memo.
9. Heard arguments on both sides.
10. For the reasons stated in the subsequent paras, I answer the above Issues are as follows:
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the Negative
3) Issue No.3 ... accordingly
4) Issue No.4 ... As per final order for the following: SCCH-1 7 MVC No.4794/2019 REASONS
11. Issue No.2: It is the case of the respondent No.2 that accident occurred outside the jurisdiction of this Tribunal and petitioner is residing out side the jurisdiction of this Tribunal and respondent No.1 also residing outside the jurisdiction of this Tribunal . Insurance policy was also issued by the branch office of the second respondent, insurance company which is situated outside the jurisdiction of this Court. Therefore, this Tribunal has no jurisdiction to try the petition.
12. From going through the cause title and evidence of PW1 admission given by him during the course of crossexamination, it is clear that he is the permanent resident of Naidupeta, Nellore. From the Police records and admitted pleadings of the petition, it is clear that accident occurred near Thummur village when Autorickshaw was proceeding towards Naidupeta from Kota side. From this pleadings , it is clear that SCCH-1 8 MVC No.4794/2019 accident occurred on 13.12.2016, outside the jurisdiction of this Tribunal.
13. As per cause title, in the petition the owner of the Autorickshaw is also resident of Naidupeta, Nellore which is outside the jurisdiction of this Tribunal. The second respondent Regional Office of the Insurance Company is situated within the jurisdiction of this Court. Now the question is situation of Regional Office of the insurance company within the jurisdiction of this Court is sufficient to get the jurisdiction to try the case is to be seen. In the Division Bench judgment of Karnataka High Court dated 19.03.2013 in M.F.A. No.1337/2009 C/w. M.F.A.CROB.41/2011 (M/s.National Insurance Company Limited Vs. K.B.Shivakumar Swamy and another ) similar point was considered by their Lordships in para No.10 of the said judgment with reference to the Apex Court Judgment and Section 166(2) of M.V.Act their SCCH-1 9 MVC No.4794/2019 Lordships referred reservation made by the Apex Court as under:
" 10. The said Act is a special statute. The jurisdiction of the Tribunal having regard to the terminologies used therein must be held to be wider than the Civil Court.
Their Lordships with reference to the Apex Court observed that :
" A distinction, however, must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a matter of fact the Civil Court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our opinion, the Court should not have, in absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal".SCCH-1 10 MVC No.4794/2019
Ultimately, in para 8 of the said judgment their Lordships held that "Hence, tribunal at Bangalore was justified in entertaining the claim petition. In that view of the matter point No.1 formulated herein above is required to be answered against the insurer and in favour of the claimant".
14. In the decision reported in (2016) 3 SCC 43 (Malati Sardar Vs. National Insurance Company Limited and others) similar case was considered by the Apex Court their Lordship held as under:
" Motor Vehicles Act, 1988S166(2) Territorial jurisdiction of Tribunal Jurisdiction of Tribunal to decide claim application when accident occurring outside its jurisdiction, claimant too residing outside its jurisdiction but respondent Insurance Company carrying on business within its jurisdictionClaim petition, held, maintainable before such Tribunal.
From going through the above said decision, it is clear that if respondent insurance company carrying on business within the jurisdiction of this Tribunal, SCCH-1 11 MVC No.4794/2019 this claim petition is maintainable before such Tribunal.
15. In this case, it is admitted fact that the second respondent Insurance Company is carrying its business within the jurisdiction of this Tribunal. Therefore, it cannot be said that this Tribunal has jurisdiction to entertain the claim petition on the ground of territorial jurisdiction. Eventhough the petitioner and respondent No.1 are residing out side the jurisdiction of this Court and accident occurred out side the jurisdiction of this Court. Hence, Issue No.2 is answered in the Negative.
16. Issue No.1 : To prove the rash or negligent act on the part of driver of the Autorickshaw, the petitioner relied on his own oral evidence and Police records. Ex.P.1 is the FIR, Ex.P.2 is the complaint, Ex.P.2(a) is the translated copy of complaint, Ex.P.4 is the M.L.C. intimation, Ex.P.5 is the chargesheet. From going through the police records, it is clear that the moving vehicle has turn turtle and it is the case of the SCCH-1 12 MVC No.4794/2019 prosecution that after seeing the pig which was crossing the road infront of the Autorickshaw the driver of the Autorickshaw suddenly took turn thereby Autorickshaw turn turtle. There is no intervention of any other vehicle. Therefore, in taking sudden turn, the driver of the vehicle has lost control over the vehicle. From that fact it is clear that vehicle was moving in high speed, it is not possible for the driver to avoid the accident or to stop the vehicle by applying brake to avoid the impact of the pig.
17. During the course of crossexamination of PW1 who is an eye witness to the accident, who is one of the inmate of the Autorickshaw except denial suggestions, nothing is elicited. Therefore, to prove the tortious liability of the insurance company, driver which is indemnified by the oral evidence of PW1 and above police records are sufficient. Therefore, the petitioner proves that only due to the rash or negligent driving on the part of the driver of the Autorickshaw accident occurred.
SCCH-1 13 MVC No.4794/2019
18. To prove that in the said accident, the petitioner has sustained injuries , petitioner relied on Wound Certificate and MLC intimation as per Ex.P.3 and 4 and other medical records at Ex.P.6.
19. From going through the police records, it is clear that the accident occurred on 13.12.2016 and case is registered on 15.12.2016. From the contents of the complaint , it is clear that including the driver of Autorickshaw and all inmates have sustained injuries. On 13.12.2016 itself in the M.L.C., history of the injury is mentioned as "R.T.A. due to flip over of an auto" and in Ex.P.3 Wound Certificate also history is mentioned as "due to flip over of an auto while travelling at 8.30 p.m.".
20. Whether delay in lodging a complaint is sufficient to reject the claim petition is considered by the Division Bench judgment of Hon'ble Apex Court in 2011 ACJ 911 (Ravi Vs. Badrinarayan and others) held that " lodging of FIR certainly proves factum of accident but delay in doing so cannot be the main SCCH-1 14 MVC No.4794/2019 ground for rejecting claim application. In that case, injured was the minor boy sitting on the side of the road infront of his house, accident was witnessed by the father of the injured and another person and they took the injured to the hospital, next day police came to the hospital but no FIR was recorded as father of injured was under mental agony and stress and he was more concerned to get the medical treatment to his son. In that case, complaint was lodged after 3 months of the accident. Considering the facts and situations of that case, their Lordships held that delay in lodging complaint cannot be a main ground for rejecting the application.
21. In view of the fact that in the M.L.C. itself history is mentioned about R.T.A. and in view of the principles laid down by their Lordship it cannot be stated that there is delay in lodging the complaint. On the contrary the petitioner has proved that he has sustained grievous injuries in the said accident as there is a fracture of left tibia bone along with other SCCH-1 15 MVC No.4794/2019 injuries. Hence, Issue No.1 answered in the affirmative.
22. ISSUE No.3: In this case petitioner has claimed total compensation of Rs.30 lakhs for the injuries sustained by him in the accident.
23. In the decision reported in (2011) 1 SCC 343 ( Raj Kumar Vs. Ajay Kumar and another) Division Bench of the Hon'ble Apex Court has laid down on what grounds compensation is required to be awarded in personal injury case. In para 6 of the said judgment their Lordships has demarcated the heads in which compensation is required to be considered are reads as under:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages(Special damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment SCCH-1 16 MVC No.4794/2019
(b) Loss of future earnings on account of permanent disability.
(iii) future medical expenses Nonpecuniary damages(General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life(shortening of normal longevity)
24. From going through the above said decision, it is clear that under the pecuniary damages expenses relating to the treatment , hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure are required to be considered with. In the second head loss of earning and other gains of the injured person is required to be considered. In the background of principle laid down by their Lordships in the above said decision we can consider what amount the petitioner is entitled for compensation.
25. In this case, petitioner has relied on Ex.P.3 wound Certificate, Ex.P.6 discharge summary and SCCH-1 17 MVC No.4794/2019 other medical bills and evidence of PW2. From going through the said documents, it is clear that petitioner has sustained the following injuries:
1. Bone depth laceration over left leg proximal
2. Multiple small laceration over the face with abrasions
3. Left Ear laceration Considering the nature of the injuries sustained by the petitioner and he has taken treatment as an inpatient from 13.12.2016 to 21.12.2016 and thereafter as per Ex.P.8,P.9, he has taken follow up treatment , compensation of Rs.40,000/ is awarded to the petitioner towards Pain and sufferings.
26. As per Ex.P.6, the petitioner has taken treatment as an inpatient for a period of 9 days from 13.12.2016 to 21.12.2016. Therefore, an amount of Rs.9000/ is awarded to the petitioner towards food and nourishment and attendant charges.
27. It is the case of the petitioner that he has spent huge amount for medical expenses. For that SCCH-1 18 MVC No.4794/2019 petitioner relied on Ex.P.7,P.8, document . Ex.P.7 is the final bill issued by Simhapuri Hospital. To doubt the genuinity of the said bills nothing is on record. As per Ex.P.7 petitioner spent Rs.1,80,000/ for his treatment as inpatient and as per Ex.P.8 he has taken follow up treatment on 7 th january 2017, 20th March 2017. Therefore, he is entitled for amount under the Ex.P.7 and P.8 Medical bills. Total of which comes to Rs.1,82,420/. Therefore, compensation of Rs.1,82,420/ is awarded to the petitioner towards Medical Expenses.
28. During the chief examination of PW2, he has clearly stated that still implant is there in his leg. An operation is required to be done for removal of implant. Therefore, an amount of Rs.25,000/ towards future Medical Expenses, which shall not carry any interest.
29. It is the case of the petitioner that due to the injuries sustained in the accident, he has sustained SCCH-1 19 MVC No.4794/2019 permanent disability. For that he has relied on evidence of PW2. Admittedly, PW2 is not the treated Doctor and he has assessed the disability and details of his assessment is provided in chief examination affidavit. It is mentioned that the petitioner complaints pain stiffness in the left knee, unable to sit down, squat and sit with crossed leg. These are the difficulties mentioned by the petitioner . Eventhough in the year 2016 itself accident occurred after expiry of more than 5 years, the implant was not removed. In the chief examination itself the doctor has mentioned that the fracture was united and after 5 years of the accident disability was assessed by PW2 that too having implant in the body. In view of the above said facts, after removal of the implant the physical difficulties now faced by the petitioner can be set right or not. To that effect there is no either oral evidence or evidence of expert. Therefore, at this stage, it cannot be considered as there is a permanent disability. SCCH-1 20 MVC No.4794/2019
30. The learned Advocate for petitioner vehemently argued that the Court cannot reject the evidence of Doctor who is an expert. In support of his argument 2005 ACJ 644 ( M.V. Chowdappa Vs. Mohan Breweries and Distilleries Ltd. and another) wherein it is held that:
QuantuminjuryPrinciples of assessmentPermanent disability Medical evidence that injured suffered 90 percent permanent disability to whole body Whether the Tribunal was justified in assessing permanent disability at 40% ignoring the expert evidenceHeld: No. In view of my above said observation regarding even after expiry of more than 5 years implants were not removed . In view of the admission of the Doctor the principles laid down by the Lordship is not applicable to this case.
31. From the evidence of PW2, it is clear that from the date of accident petitioner has facing physical problem stated above. Considering the above said Doctor evidence, the petitioner is entitled for SCCH-1 21 MVC No.4794/2019 compensation under the head of loss of amenities. Therefore, an amount of Rs.60,000/ is awarded to the petitioner towards loss of amenities. He is not entitled for compensation under the head of loss of future earning capacity due to permanent disability.
32. As per Ex.P.8 and P.9 , it is clear that petitioner has taken follow up treatment and he has been shifted from the scene of offence to hospital and at the time of discharge he was advised to take rest. Considering these facts a compensation of Rs.2,000/ is awarded to petitioner towards Transportation charges.
33. It is the case of the petitioner that he was earning Rs.20,000/p.m. by doing Mason work. To substantiate the same, except oral evidence of PW1 nothing is on record. Therefore, notional income is required to be taken for determining the loss of income. Considering the fact that petitioner was aged SCCH-1 22 MVC No.4794/2019 37 years and was doing some work and the accident took place in the year 2016, his monthly income is taken as Rs.10,000/p.m. Therefore, the petitioner is entitled for Rs.10,000/ as compensation on the head of Loss of earning during the treatment period.
34. The details of compensation, to which the petitioner is entitled to is as under: Sl. Head of Compensation Amount No.
1. Pain and Sufferings Rs. 40,00000
2. Medical expenses Rs. 1,82,42000
3. Food and nourishment, Rs. 9,00000 attendant charges
4. Transportation charges Rs. 2,00000
5. Loss of income during the Rs. 10,00000 period of treatment
6. Loss of amenities Rs. 60,00000
7. Future Medical Expenses Rs. 25,00000 TOTAL Rs. 3,28,42000 SCCH-1 23 MVC No.4794/2019 The petitioner is entitled for a sum of Rs.3,28,420/. with interest at the rate of 6% p.a. from the date of the petition till realisation.
35. Already the petitioner has spent more than lakh of rupees for medical expenses. Therefore, 70% of the awarded amount including interest is ordered to be released in his favour and remaining 30% is ordered to be deposited in the Fixed Deposit.
36. The respondent No.1 is the owner of the vehicle which involved in the accident and respondent No.2 is the insurer and they are jointly and severally liable to pay the compensation amount with interest at 6% p.a. from the date of the petition till realisation. Respondent No.2 is directed to deposit the compensation amount within 2 months. For the above said reasons, Issue No.3 is answered accordingly.
SCCH-1 24 MVC No.4794/2019
37. Issue No.4: In view of the discussions made above, I proceed to pass the following: ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a total compensation of Rs.3,28,420/ with interest at the rate of 6% per annum on Rs.3,03,420/ from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the total compensation amount to which the petitioner is entitled, 30% with proportionate interest shall be kept in F.D. in his name in any