Bangalore District Court
Smt. Saraswathi.K vs Sri. Karuppuswamy.C on 27 February, 2018
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this the 27th Day of February 2018
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NO. 8337/2016
PETITIONER:
Smt. Saraswathi.K,
Aged about 55 years,
W/o. C.Karuppu Swamy,
Mathru Krupa,
4th Cross, 1st Main,
S.I.T.Extension,
Tumkur,
(By Sri.T.Mohan., Adv.)
-VS-
RESPONDENTS:
1. Sri. Karuppuswamy.C,
S/o Chinnappa Goundar.,
C/o.Dharmaraja Akkare Nilaya,
6th Cross, Sapthagiri Extension,
60 feet Road,
Tumkur - 572102.
(Owner of the vehicle bearing registration No.KA-06-P-0107)
2. The Manager,
Bharti Axa Gen.Ins.Co.Ltd.,
2 M.V.C.No.8337/2016
SCCH-7
1st Floor, Ferns Icon,
Survbey number 28,
Doddanekkundi,
Off Outer ring road,
Bangalore - 560 037.
(Policy No.Hax/S8279959)
Valid from 12.01.2016 to 11.01.2017)
Policy issued at Tumkur Branch
(R1 By Sri. Ramakrishnaiah.K, Adv.,)
(R2 By Sri. K.M.Ravi,, Adv.,)
JUDGMENT
1. This petition is filed under Section 166 of I.M.V. Act.
2. The Brief facts of the petitioner's case is that: on 27.11.2016 at about 04-30 a.m., when she was traveling in Car bearing Registration No.KA-06-P-0107, from Tamilnadu towards Tumkuar, when they reached Bangalore-Tumkur N.H.4 road near Kuluvanahalli Kere, at the same time the above said Car driver driven rashly and negligently with a high speed and endangering to human life and property and dashed against the divider and thus caused the accident. Petitioner sated that due to the said accident, she sustained injuries to right humorous, injuries to back, chest and other injuries all over the body. Petitioner stated that immediately she has shifted to M.S.Ramaiah Harsha Hospital, Nelamangala. Petitioner stated that there taken first aid treatment, then shifted to M.C. Orthopedic Arthroscopy & joint replacement Center Tumkur, and admitted as an inpatient for about one week and incurred Rupees 1,00,000/- in both the hospitals for treatment, medicines, Hospital, Charges etc. Petitioner stated that the 3 M.V.C.No.8337/2016 SCCH-7 Nelamangala Traffic Police have registered the case in Crime No.30/2016 under Section 279 and 337 of IPC against the driver of the offending vehicle. Petitioner stated that at the time of the accident she was hale and healthy and she was doing flower vending and earning Rupees 10,000/- p.m., and now she is not able to do her work, she is under be rest. Therefore the Respondents No.1 and 2 are jointly and severally liable to pay compensation to the Petitioner. Under these circumstances, the Petitioner prayed to allow the petition.
3. In pursuance of service of Notice, Respondents No.1 and 2 appeared before the court through their Counsel and Respondent No.2 filed objection statements and Respondent No.1 not filed objection.
4. In the objection statement the Respondent No.2 stated that the petition is not maintainable either in law or on facts. Respondent No.2 denied entire case of the Petitioner. The Respondent No.2 admitted issuance of Insurance Policy in respect of Car bearing Registration NO. KA-06-P-0107, however their liability is subject to terms and conditions of policy. Respondent No.2 stated that the driver of the insured vehicle has no valid and effective driving license to drive the Car at the time of accident. Respondent No.2 stated that the owner of the vehicle knowingly entrusted the vehicle to a person who was not having valid and effective driving license to drive the Car bearing Registration NO.KA-06-P-0107 in violation of the policy condition, hence this is a willful breach of policy condition by the owner of the 4 M.V.C.No.8337/2016 SCCH-7 insured vehicle and hence this Respondent is not liable to pay any compensation. Respondent No.2 sought protection under the section 147 and 149 of M.V Act. Respondent No.2 stated that as per section 134(c) of M.V.Act 1988, it mandatory duty of the owner of the vehicle to furnish the particulars of policy, date time and place of accident particulars of injured and the name of the driver and particulars of the driving license however the owner of the Car has not complied with statutory demand. Respondent No.2 denied the age, avocation and income of Petitioner. Further Respondent No.2 denied the alleged injuries sustained by the Petitioner, treatment taken by her, period of treatment and medical expenses. Further contended that the Car bearing Registration No. KA-06-P-0107 not involved in the accident and it was intentionally implicated in collusion with the driver, Owner and other authorities in order to get the unlawful benefit from the Insurance Company. Respondent No.2 seeks permission to take defence available Under Section 170 of MV Act and Section 149 (2) of IMV Act. Under the circumstances the Respondent No.2 prayed to dismiss the petition.
5. On the basis of the above pleadings, my predecessor-in-office have framed the following:
[ ISSUES
1. Whether the Petitioner proves that on 27.11.2016 at about 4:30 a.m. while she was traveling in Car bearing Registration No. KA-06-P-0107, near Bengaluru Tumkur road, suddenly the driver of Car, driven the same in a high speed, rash and negligent 5 M.V.C.No.8337/2016 SCCH-7 dashed against divider and caused accident, resulting which she sustained injuries ?
2. Whether the Petitioner is entitled for compensation?
If so, how much and from whom?
3. What Order or Award?
6. In order to prove the case, the Petitioner got examined herself as P.W.1 and got marked 9 documents as per Ex.P1 to P9. One witness by Name Srinivas got examined as P.W.2 and got marked 2 documents as per Ex.P.10 and Ex.P.11. Doctor Ramesh. B got examined as P.W.3 and got marked 2 documents as per Ex.P12 and Ex.P13. The Respondents No.1 and 2 have not adduced any evidence.
7. Heard the arguments.
8. My findings on the above said issues are as under:
Issue No. 1: In the Affirmative.
Issue No. 2: Partly in the Affirmative.
Issue No. 3: As per final order
for the following:
REASONS
9. Issue No. 1 : P.W.1 stated that, on 27.11.2016 at about 04-30 a.m., she was traveling in a Car bearing Registration No. KA-06-P- 0107 from Tamilnadu to Tumkuar, when the Car reached near Kuluvanahalli Kere, driver of the said Car driven the Car in rash and negligent manner and dashed against the road divider. P.W1 stated 6 M.V.C.No.8337/2016 SCCH-7 that due to the impact she sustained fracture of humorous, injuries back, chest and other parts of the body. P.W1 stated that immediately after the accident she was shifted to Ms.Ramaiah Harsha Hospital wherein first aid treatment was given to her and thereafter she was shifted to MC. Orthopedic, Arthroscopy and joint replacement center, wherein she took the treatment as inpatient about one week. P.W1 stated the said accident occurred due to rash negligent act of driver of Car.
10. In order to prove her case, P.W.1 has produced Ex.P1- FIR, Ex.P2- Complaint, Ex.P3 Spot Mahazar, Ex.P.4 Wound Certificate, Ex.P.5 IMV Report, Ex.P.6 Charge Sheet and Ex.P.7 Aadhar Card of P.W.1, In the cross-examination by the counsel for Respondent No.2 P.W.1 stated that she was traveling along with her husband from Tamilnadu to Bangalore and her relative Ganesh was driving the said Car. P.W1 denied the suggestion that she sustained injuries some where else and Car bearing Registration No. KA-06-P-0107 has been falsely implicated.
11. In this case on going through Ex.P.1- FIR and Ex.P.2 complainant, it is noticed that one Bala Murugan lodged complaint about the accident on 27.11.2016 and based on his complaint Nelamangala Police have registered crime No.30/2016 against the driver of Car bearing Registration No. KA-06-P-0107 for the offences punishable under Sections 279 and 337 of IPC. Further Ex.P.3 Spot Mahazar reveals that accident occurred at Bangalore Tumkur National Highway. Ex.P.4 Wound Certificate reveals that the Doctor 7 M.V.C.No.8337/2016 SCCH-7 as mentioned that the Petitioner sustained swelling over right arm, bleeding wound at 1x1cm over right arm, Abnormal Mobility in the mid arm and Right humorous fracture. The Doctor has opined that the injuries No. 1 to 3 are simple in nature and injury No.4 is grievous in Nature. In Ex.P5 Motor Vehicle Inspector reported the details of damages caused to the Car bearing Registration No. KA-06-P-0107 and stated that the accident was not due to any mechanical defect on motor vehicle. Ex.P11 reveals that the Petitioner was admitted to MC. Orthopaedic Arthoroscopy and joint replacement center on 27.11.2016, in connection to the fracture of Right Humorous in a road traffic accident. Further Ex.P6 reveals that after investigation the investigating officer of Nelamangala Police station has filed the charge sheet against one Ganesh driver of Car bearing Registration No.KA-06-P-0107 for the offences punishable under Section 279 and 338 of IPC. The Respondent No.2 not adduced evidence to prove that Car bearing Registration No. KA-06-P-0107 has been falsely implicated and the Petitioner sustained injuries some where else. Under these circumstances, the oral evidence of P.W.1 and documentary evidence produced by her makes clear that, the accident occurred due to rash and negligent act of driver of Car bearing Registration No. KA-06-P-0107 and as a result Petitioner sustained injuries. For the aforesaid reasons, I have answered Issue No.1 in the Affirmative.
12. Issue No. 2: P.W.1 stated that in the accident she sustained injuries to right humorous, injuries to back, chest and other injuries all 8 M.V.C.No.8337/2016 SCCH-7 over the body. P.W1 stated that immediately after the accident she was shifted to M.S.Ramaiah Harsha Hospital, Nelamangala and after first aid, she was taken the to M.C. Orthopedic Arthroscopy & joint replacement Center wherein she took treatment as inpatient for one week and underwent surgery. P.W.1 has produced Ex.P.4 Wound Certificate which reveals that the Petitioner has sustained swelling over right arm, bleeding wound at 1x1cm over right arm, Abnormal Mobility in the mid arm and Right humorous fracture. In this case Petitioner got examined the Assistant Manager M.C. Orthopedic Arthroscopy and Joint Replacement Center. He has produced Ex.P10 Authorization Letter and Ex.P.11 Case Sheet. The said Case Sheet reveals that the Petitioner was admitted to M.C. Orthopedic Arthroscopy and Joint Replacement Center wherein she undergone surgery on 28.11.2016 and implants are inserted to her Right humorous and she was discharged on 03.12.2016, has taken treatment as an inpatient from 14.11.2016 to 16.11.2016. Under such circumstances, by considering injuries sustained by the Petitioner and treatment taken by her and hospitalization, I am of the opinion that, it is reasonable to award Rupees 40,000/- under the head of pain and suffering.
13. P.W.1 has stated that, she has spent a sum of Rupees 1,00,000/- towards Hospital and medical expenses, conveyance, nourishment and attendant charges. In this case P.W.1 has produced Ex.P.8 23 Medical Bills to the tune of Rupees 62,876/- and Ex.P.9 - 15 Prescriptions. In the cross-examination by the counsel for Respondent No.2, P.W.1 denied the suggestion that Ex.P8 is created 9 M.V.C.No.8337/2016 SCCH-7 for the purpose of this case and she has not spent Rupees 1,00,000/- towards Medical Expenses as mentioned in the Ex.P8. However it is to be noted that as already discussed the Petitioner has sustained fracture of Right humorous and she has taken treatment as an inpatient for a period of 7 days and undergone surgery. As such there is no reason to disbelieve the medical bills produced by the petitioner. Under the circumstances I am of the opinion that, it is reasonable to award Rupees 62,876/- under the head of medical expenses and Rupees 10,000/- under the head of special diet and Conveyance.
14. P.W.1 stated that, prior to the accident she was hale and healthy and doing flower vending business and earning Rupees 10,000/- p.m. In the cross-examination by the counsel for Respondent No.2 P.W.1 stated that she is not having flower stall and P.W1 stated that her husband is doing business and she does not now about details of his business. In this case P.W1 has not produced any documents to show her avocation and income. P.W.1 stated that due to accidental injuries she sustained permanent disability. In support her contention Petitioner got examined Doctor Remesh. B as P.W.3. P.W3 deposed that he examined Petitioner on 09.01.2018 for the purpose of assessment of disability of Petitioner and he stated that Petitioner sustained permanent physical disability of 30% to right upper limb and to the whole body at 10%. P.W.3 has produced Ex.P.12 OPD Card and Ex.P.13 X-ray Film. In the cross- examination by the counsel for Respondent No.2 P.W.3 stated he assessed disability of Petitioner and he has not given treatment to 10 M.V.C.No.8337/2016 SCCH-7 her. P.W.3 denied the formal suggestion of counsel for Respondent No.2. In this case the Doctor has not assessed functional disability of the Petitioner. It is to be noted that as per Ex.P7 Aadhar Card as on the date of accident the age of the Petitioner was 53 years as such Petitioner has do some work for her livelihood. As already discussed petitioner has not produced any documents to prove her income, such being the case, the notional income of Petitioner is considered as Rupees 5,000/- p.m. Further the Doctor has not assessed functional disability of Petitioner. Such being the case, by looking into the injuries sustained by the Petitioner and considering the medical records and evidence of Doctors Percentage of permanent disability to the whole body of Petitioner is taken as 10%. As per Aadhar Card, the age of Petitioner was 53 years at the time of accident. For the age of 53 years, the multiplier is "11" as per the decision reported in: 2009 ACJ 1298 Sarala Varma Vs. Delhi Transport Company. So, the loss of permanent physical disability would be 5,000 x 12 x 11 x 10/100 = Rupees 60,000/-. For the aforesaid reasons, it is reasonable to award compensation of Rupees 60,000/- under the head of loss of permanent disability.
15. Hence, the petitioner is entitled for total compensation of Rupees 1,72,276/- under different heads as below.
1. For pain and sufferings, Rupees 40,000.00 mental agony.
2. Actual medical expenses Rupees 62,876.00
3. For Special diet and Rupees 10,000.00 Conveyance.
11 M.V.C.No.8337/2016SCCH-7
4. Permanent disability Rupees 60,000.00 Total Rupees 1,72,876.00
16. Respondent No.2 admitted the issuance of Insurance Policy to Car bearing Registration No. KA-06-P-0107. This court already came to conclusion that the accident occurred due to rash and negligent act of driver of Car bearing Registration No. KA-06-P-0107. There is no evidence on record to prove that the owner of offending Car violated the terms and conditions of policy. There is no dispute that as on the date of accident the policy was in force. Under the circumstances, Respondent No.1 being the owner and Respondent No.2 being the insurer of offending vehicle are jointly and severally liable to pay compensation to the Petitioner with interest at the rate of 9% P.A. from the date of petition till realization. Accordingly, Issue No. 2 is answered partly in the Affirmative.
17. Issue No. 3: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 1,72,876/- along with future interest at the rate of 9% p.a. from the date of petition till realization of entire amount.12 M.V.C.No.8337/2016
SCCH-7 The respondent No.2 being the Insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award.
The entire compensation amount is order to be released in favour of Petitioner by issuing account payee cheque with proper identification.
The Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the stenographer, computerized by her, corrected by me and then pronounced in the open Court on 27.02.2018).
(SUJATHA S), IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S;
P.W.1. Saraswathi
P.W.2. Srinivas
P.W.3 Dr. Ramesh.B
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot Mahazar
Ex.P4 Wound Certificate
13 M.V.C.No.8337/2016
SCCH-7
Ex.P5 IMV Report
Ex.P6 Charge Sheet
Ex.P7 Notarized Xerox copy of Aadhar Card of
K.Saraswathi
Ex.P8 Medical Bills (23 in nos.)
Ex.P9 Prescriptions (15 in nos.)
Ex.P10 Authorization Letter
Ex.P11 Case Sheet
Ex.P12 OPD Card
Ex.P13 X-ray Film
III. LIST OF WITNESSES EXAMINED FOR THE
RESPONDENTS:
- NIL -
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
- NIL -
(SUJATHA S),
IX Addl. Small Causes Judge
& XXXIV ACMM, Court of Small causes,
Member, MACT-7, Bangalore.