Bangalore District Court
Mr.Islam Sahik vs Universal Sompo General Insurance on 15 April, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.3510/2015
Dated this the 15th day of April 2016
Petitioner/s : Mr.Islam Sahik,
S/o Abul Shaik @ Abul S.K.
Aged about 25 years,
R/at C/o RMC Service,
Srinivasapura
Sathanoor Village,
Bangalore North Taluk.
Present Address.
R/at Para Rajapur,
Nuthanpura,
Edrakpur, Nowda,
Murshidaba,
West Bengal,
PIN 7422175
(By pleader Sri BSD)
V/s
Respondent/s 1. Universal Sompo General Insurance
Co.Ltd.
Regd and Corporate Office,
Unit; 401, 4th floor,
Sangam Complex-127,
Andheri East
Mumbai-400059.
(By pleader Sri RSS)
SCCH-14 2 MVC NO.3510/2015
2. Mr.Rajanna.R
S/o Rama Rao. B.S.
R/at No.182/A, "Ahreya"
2nd cross, (1st A cross)
14/15 Main Road,
Hanumanthangar,
Bangalore-560050
(By pleader, Sri HGS)
XVI ADDL. JUDGE,
Court of Small Causes & MACT.,
BANGALORE.
SCCH-14 3 MVC NO.3510/2015
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner was aged 25 years, was a pump operator(Mason) and earning Rs.15,000/- per month. On 26.07.2015 at about 02.30 pm, the petitioner was walking on the extreme side of foot path of B.B.road, Yelahanka, Bangalore slowly, cautiously with due care. When he came near Famous Engineering works, at that time, car bearing No.KA-05-MN- 8376 driven by its driver with very high speed, in a rash and negligent manner in opposite direction and came to extreme left side without observing traffic rules and regulations and dashed against the petitioner. Due to the impact, the petitioner fell down and sustained grievous head injury. Immediately, he was taken to Apurva Multispeciality hospital, Bangalore wherein he was admitted as an inpatient. The petitioner spent Rs.1,50,000/- towards medical, conveyance, nourishment expenses. Due the accidental injuries, he is unable to lead a normal life as earlier and not able to do his work and suffering from huge loss of income. Yelahanka Traffic police have registered Cr.No.153/2015 against the driver of car bearing No.KA-05-MN-8376 for the offences punishable U/s 279 and 337 of IPC. The respondents are the insurer and owner of the said car and they are jointly and severally liable to pay compensation. Hence, the petitioner has filed this petition for compensation of Rs.10,00,000/- with Court cost and interest.SCCH-14 4 MVC NO.3510/2015
3. In pursuance of the notice, the respondents have appeared before the Court through their respective counsel and filed objection statement separately. Both of them have denied the averments of the petition as false. The respondent no.1 has admitted that he has issued a policy in favour of the respondent no.2 in respect of car bearing No.KA-05- MN-8376 and contended that insured and the concerned police have not complied with their mandatory duties, that the driver of the car was not holding a valid and effective driving licence at the time of accident, that the insured has committed breach of the terms and conditions of the policy and he is not liable to indemnify the respondent no.2, that the insured vehicle was not involved in the accident, that there was no rashness or negligence on the part of the driver of car, that the petitioner himself was negligent who without having proper look out vehicular movements of the road, was crossing the road in a place not meant for pedestrian crossing, that the accident has occurred due to negligence on the part of the petitioner, that the compensation claimed by the petitioner is highly excessive, exaggerated, arbitrary and speculative when compared to comparable cases. Hence, he has sought for dismissal of the petition with cost.
The respondent no.2 has contended that the petition is not maintainable either in law or on facts, that he is the owner of the car bearing No.KA-05-MN-8376 and it was insured with the respondent no.1, that the compensation claimed by the petitioner is exorbitant and untenable, that the petitioner without observing the traffic rules suddenly crossed the road, that the driver of the said car was having valid and effective driving licence to drive the vehicle, that the accident has occurred due to negligence on the part of the petitioner himself, that the policy was SCCH-14 5 MVC NO.3510/2015 in force on the date of accident, that the claim petition is filed with an intention to get wrongful gain by colluding with police, that there was no negligence on the part of the driver of the car. Hence, he has sought for dismissal of the petition as against him.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 26.07.2015 at about 02.30 p.m., On B.B. Road, (service road) Near Kogilu Circle junction, Yelahanka, Bangalore, in an accident arising due to rash and negligent driving of driver of Car bearing No.KA-04-MN-
8376?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined a doctor as PW.2. He has got marked documents as Ex.P1 to P14. The respondents have not adduced any evidence on their behalf.
6. Heard the arguments. The counsel for the petitioner has relied upon following rulings;
SCCH-14 6 MVC NO.3510/20151. MFA No.9394/2013(MV) :
B.Anuradha @ Anusha & Ors., Vs., M/s Shriram General Ins.,Co.Ltd., & Anr.,
2. AIR 2015 SCW 3105: Munn Lal Jain & Anr., Vs., Vipin Kumar Sharma & Ors.,
3. 2012 ACJ191: Laxman Vs., Divisional Manager, Oriental Ins.,Co.Ltd., & Anr.,
4. 2007 ACJ 13:New India Ass., Co.Ltd., Vs., Papamma & Anr.,
5. AIR 2011 SCW 2609: Nagarajappa Vs., Divisonal Manager, Oriental Ins.,Co.Ltd.,
6. 2015 (3) TAC 1 (SC) : Munna Lal Jain & Anr., Vs., Vipin Kumar Sjarma & Ors.,
7. 2014(2) TAC 737 (SC): Dinesh Singh Vs., Bajaj Allianz General Ins.,Co.Ltd.,
8. 2013 ACJ 2131: G.Ravindranath Vs., E.Srinivas & Anr.,
9. 2014 AIR SCW 856: Sanjay Verma Vs., Haryana Roadways
10. 2004 ACJ 1091: A.Anandan Vs., Abdul Azeez & Ors., I have gone through the said rulings and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In Affirmative.
Issue No.2 : In Affirmative, For Rs.5,64,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:SCCH-14 7 MVC NO.3510/2015
REASONS
8. ISSUE NO.1:The petitioner has adduced oral and documentary evidence to prove his case. But, the respondents have no evidence either to prove their defence or to disprove the case of the petitioner.
9. PW.1 : Islam Shaik has reiterated the averments of the petition and stated that he sustained grievous injuries in the accident arising out of rash and negligent driving of the driver of car bearing No.KA-05-MN-8376 and he suffered permanent disability due to accidental injuries. He was cross examined by the counsel for respondent no.1 by taking up a contention that the accident was not due to negligence of the driver of the car, but it was due to his own negligence in which he suffered simple injuries and there is no disability due to such injuries. The respondent no.2 has not cross examined PW.1. The suggestions given by the counsel for the respondent no.1 were denied as false. Only on the basis of such denials, it cannot be held that the accident was due to sole or contributory negligence of the petitioner and he sustained simple injuries.
10. PW.2: Dr.Krishnaprasad has deposed that the petitioner sustained severe head injury which has resulted in permanent disability of 45% to the petitioner. His evidence corroborates the oral evidence of PW.1 as to nature of injury caused to the petitioner. There is dispute as to extent of disability suffered by the petitioner due to accidental injury which can be dealt during discussion of issue no.1. However, medical evidence on record in the form of oral evidence of PW.2 and in the form of documentary evidence at Ex.P6 to 8, 12 and 14 clearly indicate that the SCCH-14 8 MVC NO.3510/2015 petitioner has suffered some sort of disability. I do not find any ground to disbelieve the evidence of PW.1 and 2 to that extent.
11. Copies of police records are at Ex.P1 to 5 which reveal that Yelahanka Traffic police have registered Cr.No.153/2015, investigated the matter and filed chargesheet against the driver of car bearing No.KA-05- MN-8376 for the offences punishable U/Sec.279, 338 of IPC. PW.1 has stated about presence of Laltu with him at the time of accident. The said Laltu has lodged complaint regarding accident. There was no delay in lodging complaint. IMV report discloses that the car was not damaged on the relevant date. But, vehicle number and name of the driver of car is mentioned in the complaint which establish the involvement of car bearing No.KA-05-MN-8376 in the accident. Its Brake system was in order. The accident was not due to mechanical defects. Sketch at Ex.P2 reveals the manner of accident. Car has deviated its direction, went towards left and dashed against the petitioner. There was no hurdle for the driver of the car to observe the petitioner before accident. He could have avoided the accident by applying brakes. There is nothing on record to disbelieve the chargesheet filed by the police which is prima-facie evidence as to negligence of car driver. Police investigation corroborates the evidence of PW.1. Wound certificate at Ex.P6 reveals that history of injury of the petitioner is shown as RTA in medical records. There is no oral or documentary evidence as to negligence of the petitioner. The driver of car was the best witness to speak about it. The respondents have not examined him as their witness. Hence, I hold that the accident was due to rash and negligent driving of the driver of the car bearing No.KA-05-MN-8376.
SCCH-14 9 MVC NO.3510/201512. Evidence of PW.1 and 2 and contents of wound certificate and discharge summary at Ex.P6 and 7 reveal that the petitioner has sustained several head injury, diffuse axonal injury in the accident and it has resulted in permanent disability to him. There is no evidence to establish the defence of the respondents that the petitioner has sustained simple injuries and the treatment given to him was not for accidental injuries. CT scan, MRI and lab reports at Ex.P8 confirm the nature of injuries caused to the petitioner. Disability certificate Neuropsychological and case sheet are consistent with the evidence of PW.1 and 2. Thus, the petitioner has succeeded to prove the issue. There is no evidence to rebut the oral and documentary evidence adduced by the petitioner. Hence, I answer the issue in affirmative.
13. ISSUE NO.2: The petitioner has claimed compensation of Rs.10,00,000/- for the injuries caused to him in the accident. The respondents have denied the claim of the petitioner as excessive, exorbitant, arbitrary and speculative. PW.1 Islam Shaik has deposed as per the averments of his petition. PW.2: Dr.Krishnaprasad has supported the version of PW.1. Documentary evidence at Ex.P1 to 14 corroborate the oral evidence of PW.1 and 2. The respondents have no oral or documentary evidence to rebut the case of the petitioner. However, the respondent no.1 has relied upon the evidence of the petitioner to prove his defence.
14. Evidence of PW.1 and 2 and contents of wound certificate and discharge summary at Ex.P6 and 7 reveal that the petitioner has sustained following injuries in the accident:
SCCH-14 10 MVC NO.3510/20151. TBI diffuse axonal injury with subarachnoid bleeding,
2. Bi-lateral basi frontal, left temporal and left thalamus fracture.
The petitioner was admitted in Apurva Mother and Child Hospital from 26.07.2015 to 08.08.2015 and underwent conservative treatment. He was advised to take follow up treatment and rest after discharge. His condition was stable at the time of discharge with score 15/15. PW.2 has admitted that all limbs of the petitioner are normal and he can walk independently, that his coordination with his family members and outsiders is normal, that the petitioner is still under treatment, that it depends on the case that 75% disability can be brought to normal by rehabilitation process.
15. PW.1 has given evidence before court and underwent process of cross examination. He recalled his memory to give answer regarding accident. He has given rational answers to all questions put to him during cross examination. His reaction before the court is against the medical reports at Ex.P12 and 13 and assessment of disability made by PW.2. Under the circumstances, evidence of PW.2 that the petitioner is suffering from total disability of 45% and certificate of Dr.Premalatha that the petitioner has neuropsychological disability of 15-20% cannot be accepted. Rulings relied upon by the petitioner regarding medical evidence as to disability were rendered under different facts and circumstances. Hence, they cannot be applied to the case.
SCCH-14 11 MVC NO.3510/201516. PW.1: Islam Shaik has stated as under regarding his difficulties:
1. Suffering from frequent pain and swelling of left side head
2. Getting frequent head ache and giddiness
3. Not able to expose to the direct sun light
4. Not able to concentrate on his day to day activities
5. Lost complete memory power and body was not balance
6. Not able to speak properly and has slurring speech
7. Eyes will be watering
8. Not able to walk, sit or stand without the help of helper
9. Lost complete sensation over his left hand
17. PW.2 has not supported the evidence of PW.1 as to his difficulties. Evidence of PW.1, his conduct and reaction before court indicate that many of the above difficulties are not in existence. Evidence of PW.2 is based on the report of Dr.Premalatha who did not appear before court. The respondent no.1 has disputed the correctness of disability certificates at Ex.P12 and 13. In such event, Evidence of Dr.Premalatha is essential to prove the neuropsychological disability. Non examination of Dr.Premalatha is fatal. PW.2 has not produced clinical notes to show that he has clinically examined the petitioner before assessing his disability. Hence, his evidence as to neuropsychological disability is unacceptable. The condition of the petitioner and his conduct reveal that the disabilities assessed by the doctors is highly exaggerated. On combined perusal of evidence of PW.1, 2 and reports at Ex.P12 and 13 reveal that the petitioner is suffering from permanent disability due to SCCH-14 12 MVC NO.3510/2015 accidental injuries. If extent of his total disability is considered as 15%, it will meet the ends of justice. The said disability is physical as well as functional resulting in loss of earning capacity to the extent of disability i.e., 15%.
18. PW.1 Islam Shaik has deposed that he was aged 25 years, was a mason (pump operator) at RMC services and was earning Rs.15,000/- p.m., His age is shown as 27 years in police records and medical records. There is no other evidence as to his age. Chargesheet reveals that the petitioner was a labourer. As per FIR, the complaint and the petitioner were cement mixing workers. However, there is no corroboration to the evidence of PW.1 as to his income. Hence, I hold that the petitioner was aged 27 years and was a mason/labourer prior to accident. Appropriate multiplier is 17. In the absence of positive evidence, income of the petitioner shall be assessed notionally @Rs.8,000/- p.m., His annual income comes to Rs.96,000/-. He might have taken follow up treatment for about 3 to 3½ months. His total laid up period comes to 4 months. During the said period, he might have spent amount for nourishment, conveyance, attendant charges apart from incurring medical expenses. He lost income for 4 months. Medical bills amounting to Rs.1,16,864/- are at Ex.P10 which are supported by prescriptions at Ex.P11. There is nothing on record to disbelieve the medical bills. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.50,000/- towards pain and sufferings, Rs.1,17,000/- towards medical expenses, Rs.20,000/- towards nourishment, conveyance and attendant charges, Rs.32,000/- towards loss of income during laid upon period. His loss of Future income would be Rs.96,000X17X15%Rs.2,44,800/- which can be rounded to Rs.2,45,000/-.
SCCH-14 13 MVC NO.3510/201519. The petitioner is suffering from permanent disability of 15% and he has to live with said disability throughout his life. He has several difficulties which may persist in future resulting in loss of amenities. PW.2 has deposed that the petitioner is still under treatment, but there is no estimation as to future medical expenses. Hence, I am inclined to award a compensation of Rs.50,000/- towards disability, Rs.25,000/- towards loss of amenities and Rs.25,000/- towards future medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under;
1. Pain and sufferings Rs. 50,000/-
2 Medical expenses Rs.1,17,000/-
3 Nourishment, conveyance and Rs. 20,000/-
attendant charges 4 Loss of income during laid up Rs. 32,000/-
period 5 Loss of future income Rs.2,45,000/-
(Rs.96,000X17X15%) 6 Disability Rs. 50,000/-
7 Loss of amenities Rs. 25,000/-
8 Future medical expenses Rs. 25,000/-
Rs.5,64,000/-
Total The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
19. The respondents are the insurer and owner of car bearing No.KA-05-MN-8376. The respondents have contested the matter. The petitioner has proved that the accident has occurred due to rash and negligent driving of the driver of said car in which he sustained grievous injuries. The respondents have failed to prove that the accident has SCCH-14 14 MVC NO.3510/2015 occurred due to sole or contributory negligence on the part of the petitioner. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioner. However, the respondent No.1 has contended that he is not liable to indemnify the respondent No.2 and to compensate the petitioner on the ground that the respondent No.2 has violated the terms and conditions of the policy, that the driver of car was not holding a valid and effective driving license on the date of accident, but there is no evidence to substantiate his contentions. The policy was in force on the date of accident. Hence, the respondent No.1 is liable to deposit the amount before the Court. Consequently, I answer the issue as above.
20. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.5,64,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,64,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.SCCH-14 15 MVC NO.3510/2015
After deposit, Rs.2,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled and co-operative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 15th day of April 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.
SCCH-14 16 MVC NO.3510/2015ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Islam Shaik
PW.2 Dr.Krishanaprasad
Respondent' s NIL
Ex.P1 - Copy of FIR with complaint
Ex.P2 - Copy of Sketch
Ex.P3 - Copy of Panchanama
Ex.P4 - Copy of IMV Report
Ex.P5 - Copy of Charge Sheet
Ex.P6 - Copy of Wound Certificate
Ex.P7 - Discharge summary
Ex.P8 - CT Scan, MRI and lab reports
Ex.P9 - Copy of Adhaar Card
Ex.P10 - Medical Bills ( 51 in nos amounting to Rs.1,16,864/-)
Ex.P11 - Prescriptions (35 in nos)
Ex.P12 - Disability Certificate
Ex.P13 - Neuro psychological assessment
Ex.P14 - Case Sheet
Respondent's NIL
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 17 MVC NO.3510/2015
Dt.15.04.2016
P-BSD
R1-RSS
R2 -HGS
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
SCCH-14 18 MVC NO.3510/2015The petitioner is entitled for a compensation of Rs.5,64,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,64,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.2,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled and co-operative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.
SCCH-14 19 MVC NO.3510/2015AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3510/2015 Petitioner/s : Mr.Islam Sahik, S/o Abul Shaik @ Abul S.K. Aged about 25 years, R/at C/o RMC Service, Srinivasapura Sathanoor Village, Bangalore North Taluk.
Present Address.
R/at Para Rajapur, Nuthanpura, Edrakpur, Nowda, Murshidaba, West Bengal, PIN 7422175 (By pleader Sri BSD) V/s Respondent/s 1. Universal Sompo General Insurance Co.Ltd.
Regd and Corporate Office, Unit; 401, 4th floor, Sangam Complex-127, Andheri East Mumbai-400059.
(By pleader Sri RSS)
2. Mr.Rajanna.R S/o Rama Rao. B.S. R/at No.182/A, "Ahreya"
2nd cross, (1st A cross) 14/15 Main Road, Hanumanthangar, Bangalore-560050 (By pleader, Sri HGS) SCCH-14 20 MVC NO.3510/2015 WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the injuries sustained by the petitioner/Death of in a motor Accident by vehicle No.
WHEREAS, this claim petition coming up before Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.5,64,000/- with interest @ 9% per annum from the date of petition till the date of payment.
SCCH-14 21 MVC NO.3510/2015The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.5,64,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.2,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled and co-operative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 22 MVC NO.3510/2015By the __________________________________ Petitioner/s Respondent No.1 No.2 _________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. -----------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
.
Decree Clerk SHERISTEDAR
SCCH-14 23 MVC NO.3510/2015
SCCH-14 24 MVC NO.3510/2015