Bangalore District Court
Mr.Shafiulla vs Sri.D.V.Shiva Santhosh on 22 March, 2022
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru
DATED THIS THE 22nd DAY OF MARCH 2022
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
M.V.C. No.5708/2019
Petitioner : Mr.Shafiulla,
S/o Alim ulla,
Age: 65 years, Occ: Coolie,
No.285, Akkiyappa Garden,
J.C. Nagara,
B'luru - 22.
(By Sri.Suresh M. Latur, Advocate)
Vs
Respondents : 01. Sri.D.V.Shiva Santhosh,
S/o H.D.Vijayakumar,
# 14, Saraswathipura Cross Road,
Opp. Vinayaka Temple,
Jougupalya,
Halasuru,
B'luru - 08.
(Owner of Motor Cycle reg.
No.KA03HX8102)
(By Sri.H.R.Jayaram, Advocate)
(SCCH3) 2 MVC 5708/19
02. The Manager,
HDFC, Chubb General Insurance
Co. Ltd.,
Unit No.108/109/110/111,
1st Floor, H.M. Geneva House,
No.14, Cunningham Road,
Next Wockhardt hospital,
B'luru - 52.
(Insurer of Motor Cycle reg.
No.KA03HX8102)
(Policy No:2312100409111100000
Validity:23012019 to 22012020)
(By Sri.V.Shrihari Naidu, Advocate)
*******
JUDGMENT
This petition is brought U/Sec 166 of M.V. Act 1988, for the compensation to the injuries sustained by the petitioner in the accident caused on 31082019.
02. The brief facts are as under: It is the case of the petitioner that on 31082019 at about 1.40 p.m. while he was proceeding on Tumakur Main Road, crossing the road opposite to Vaishnavi Mall, at that time from RMC Yard side, a rider of Motor Cycle bearing reg.No.KA03HX8102 ridden by its rider in high speed, rash and negligent manner and dashed against the petitioner. As a result (SCCH3) 3 MVC 5708/19 petitioner suffered grievous injuries and was taken to People Tree hospital, Goraguntepalya and later admitted to Victoria hospital, Bengaluru, for treatment. According to the petitioner he has spent Rs.25,00000 towards treatment and other incidental charges.
03. According to the petitioner he was hale and healthy prior to accident and he was Coolie by profession and was earning Rs.21,00000 p.m. But due to the injuries suffered he is disabled to earn and as such has claimed Rs.10,00,00000 (Ten lakhs only) as compensation against the respondents.
04. In response to the notice issued, the respondent No.1 appeared through Sri.HRJ Advocate and the respondent No.2 appeared through Sri.VSN Advocate. The respondent No.1 has not filed written statement inspite of sufficient opportunity given.
05. The respondent No.2 has filed written statement denying the case of the petitioner and contended that their liability is subject to terms and conditions of the policy. The accident is solely due to negligence of petitioner who was crossing the road without observing the traffic movements on highway road. The rider of Motor Cycle is not negligent. The rider was not having license to ride Motor Cycle and there is breach of policy conditions. The claim made is (SCCH3) 4 MVC 5708/19 exorbitant. The age, avocation, income and expenses details furnished by the petitioner are all denied as false. Therefore, sought to dismiss the case against them.
06. Based on the aforesaid pleadings, the following Issues have been framed : ISSUES
1. Whether the petitioner proves that he has sustained grievous injuries in the accident occurred on 31082019 at about 1.40 p.m. on Tumakuru Main Road, Vaishnavi Sapphire Mall, near RMC Yard, Bengaluru, due to rash and negligent act of the riding of the Motor Cycle bearing reg. No.KA03HX8102 by its rider as alleged in the petition?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What Order or Award?
07. In order to prove the case, petitioner gave evidence of himself as P.W.1 and has produced Ex.P.1 to Ex.P.18 documents. Also examined the doctor who treated the petitioner and assessed the disability as P.W.2 and through them Ex.P.19 to Ex.P.21 documents are marked. On the other hand the respondent No.2 has examined its Company Official as (SCCH3) 5 MVC 5708/19 R.W.1 and through them got produced Ex.R.1 to Ex.R.3 documents. The respondent No.1 has not led evidence.
08. Arguments are heard from petitioner side. Respondents have not advanced arguments.
09. My findings on the aforesaid Issues are as under: Issue No.1 Partly the Affirmative Issue No.2 Partly in the Affirmative Issue No.3 As per final order for the following:
REASONS
10. Issue No.1: In this case petitioner alleged that rider of Motor Cycle bearing reg. No. KA03HX8102 has caused the accident and injuries to petitioner. In order to substantiate the claim, petitioner gave his evidence as P.W.1 by reiterating petition averments in his chiefexamination filed by way of affidavit. He has produced Ex.P.1 to Ex.P.18 documents such as FIR, Complaint, spot Mahazar, spot Sketch, Wound certificate, Charge sheet, Order sheet in CC 10725/2019, 133 Notice, Reply for 133 Notice, Bregister extract, Discharge summaries, Photo (SCCH3) 6 MVC 5708/19 with CD, Voter ID card, Medical bills and Prescriptions.
11. In the crossexamination of P.W.1 admitted that this accident took place while he was crossing the road at highway, and it is in the middle of the road, there is no zebra cross, he did not observe the Motor Cycle. The suggestion that it is true that the rider of the Motor Cycle took me to the hospital infers that the respondent do not dispute the involvement of Motor Cycle. Further the reply to 133 Notice produced at Ex.P.9 shows that the owner/respondent No.1 in this case had admitted that the accident took place while he was riding the said Motor Cycle bearing reg. No. KA03HX8102. Therefore, the involvement of vehicle of respondent, accident and injuries caused to petitioner in the accident alleged are established.
12. In counter to the evidence of petitioner, the respondent No.2 has examined its Company Official as R.W.1 and through them got produced Ex.R.1 to Ex.R.3 documents such as copy of Policy, copy of spot Sketch and copy of spot Mahazar.
13. On the point of negligence, the defense is that P.W.1 admitted that he was crossing the road at highway without observing the vehicle movement and in the middle of the road the accident took place, there was no zebra cross, establishes that the petitioner has (SCCH3) 7 MVC 5708/19 also contributed to the accident. On the other hand, the counsel for petitioner argued that it is for respondent to prove that it amounts to negligence and mere crossing the road would not amount to negligence and they have to plead and establish with evidence.
14. I disagree with the contention of learned counsel for petitioner as it is the initial burden on the petitioner to prove negligence of rider of Motor Cycle of respondent and the recent Judgment of Hon'ble High Court of Karnataka in MFA No.3004/2019 between Managing Director KSRTC Hassan Vs Andrew Lucas and others decided on 09012020, wherein the Division Bench has held:
"11. Having considered the material available on record and also the evidence of R.W.1, who has been examined before the Tribunal, though the Division Bench of this Court has taken 25% of the negligence and taking into consideration the fact that there was a toll near the place of accident, it is appropriate to take 20% of the negligence on the part of the deceased. Since he has crossed the road where there was no provision to cross the road. The Tribunal has failed to consider the fact that there was no provision to cross the road at the place where the accident has taken place. Hence, the Tribunal has committed an error in not considering the contributory negligence of the deceased. Accordingly, we modify the findings of the Trial Court by answering point No.1 as affirmative in coming to the conclusion that there was (SCCH3) 8 MVC 5708/19 contributory negligence to an extent of 20% on the part of the deceased".
15. As per the said Judgment that mere crossing the road where there is no zebra cross amounts to negligence and for that contributory negligence can be considered. Hence, in view of the ratio and the facts before the tribunal, it is clearly established that there was no zebra cross as it is a highway and petitioner himself admitted that he did not observe the vehicle and as such in my opinion the petitioner has also contributed to the accident. Hence, this Issue is answered partly in the affirmative.
Issue No.2:
16. 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;
(b) Loss of future earnings on account of permanent disability;
(iii) Future medical expenses.(SCCH3) 9 MVC 5708/19
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).
17. To prove the injuries petitioner has produced the Wound certificate of People Tree hospital, Bengaluru, at Ex.P.5 and it shows that he has sustained: Left leg both bones fracture with crush injury and the doctor has opined that said injury is grievous in nature.
18. Apart from it, the petitioner has summoned the doctor and examined him as P.W.2 and through them got produced OPD book, one Xray and Case sheets at Ex.P.19 to Ex.P.21. P.W.2 is Dr.Ramachandra, working as Assistant Professor of Orthopedics at Victoria hospital, Bengaluru and presently working at General hospital, Jayanagar, has deposed that he has treated the petitioner during first admission on 31082019 in Victoria hospital and on diagnosis it is found petitioner suffered type III 'B' open (compound) fracture of both bones (tibia and fibula) of left leg middle one third and petitioner has undergone (SCCH3) 10 MVC 5708/19 wound debridement and surgery. On 08012020 during second admission it is found petitioner suffered aseptic nonunion of fracture both bones of left leg and he has undergone surgery. According to him recently he examined the petitioner on 25012021 for assessment of disability. On examination he found petitioner complained of difficulty in standing on both legs and on affected leg, walking on plain surface and on slope, climb stairs, taking turns, squat on floor, kneel and sit crossleg. Petitioner always limps while walking and walks with the support of walker frame. Radiological examination shows fracture shaft of left tibia shows nonunion with implats in situ, fracture of left fibula shows malunion. As such he has assessed permanent residual physical disability of about 40.32% of left lower limb which is about 20.16% to the whole body. In view of the above said disabilities, it is difficult for the petitioner to work as a Coolie and also difficult for him to do any other manual or physical work. In support of his evidence has produced opd book, case sheet and Xrays at Ex.P19 to 21.
19. In the crossexamination of P.W.2 it is noticed that this doctor has treated the petitioner at the initial stage along with team of doctors. However, he admits that except the recent Xray, there are no documents to show that there is any malunion. It is (SCCH3) 11 MVC 5708/19 denied that the disability assessed is on higher side and it should be 1/3rd of the limb rather half.
20. The learned counsel for petitioner has argued and relied upon the Judgments reported in 2014 ACJ 2550, 2014 ACJ 627 (SC), 2004 ACJ 1091 KAR and contended that the disability is only a physical disability issued by the doctor and it is the functional disability which has to be considered and the compensation has to be awarded based on the loss of earning capacity and the pain and sufferings undergone.
21. I have gone through the Judgments relied. Keeping in view the principles guided in the above judgments, comparing with the facts of the case I would proceed to appreciate the evidence. On going through the evidence led, it is noticeable that the P.W.1 is aged about 65 years as claimed by them and the records produced in this regard are Voter ID card at Ex.P.16 which shows his date of birth as 01011954. The date of accident is 31082019. So, as on the date of accident he is aged 66 years and the same is considered for calculating the compensation. As per Sarla Varma and others Vs Delhi Transport Corporation and others case reported in 2009 ACJ (SCCH3) 12 MVC 5708/19 1298 the multiplier applicable is "5" and the same is considered.
22. Generally in the age of 60 years and above the person will be of lessor capacity to work physically and the pain will be more in case of meeting with such accidental injuries. However, in this case there is no proof produced to show that he was working as Coolie at RMC Yard. In the Complaint at Ex.P.2 which is given by the petitioner himself has stated his occupation as route guide for lorries. So, there is inconsistency in the occupation pleaded, nevertheless the income is not proved with cogent documents as claimed. Looking to the age of the petitioner, in my opinion the disability has to be considered at 20% as there is nonunion and malunion of tibia and fibula, therefore, the disability of 20% assessed by the doctor P.W.2 appears to be feasible, hence the same is considered.
23. As discussed above, the petitioner has not produced any proof of income, but the counsel for petitioner contended that notional income as per the Legal Services Chart has to be considered. Looking the age of the petitioner, in my opinion the notional income at Rs.12,00000 per month can be considered as feasible. Therefore, the petitioner is entitled for loss of future income as under:
(SCCH3) 13 MVC 5708/19Rs.12,000 x 12 x 20 x 5/100 = Rs.1,44,00000 (One lakh forty four thousand only).
24. The petitioner has produced the Discharge summaries at Ex.P.11 to Ex.P.14. Ex.P.11 is the Discharge summary of People Tree hospital, which shows that he has been treated as inpatient only on 31082019. Ex.P.12 to Ex.P.14 are the Discharge summaries of Victoria hospital, Bengaluru, which shows that he has been treated as inpatient from 01092019 to 17092019 and from 08012020 to 26012020. Therefore, considering the number of days of treatment and nature of injuries suffered, I deem it fit to award Rs.40,00000 (Forty thousand only) towards pain and sufferings undergone during treatment period.
25. As the petitioner has got admitted thrice, in my opinion he could have taken rest for 6 months at least. Therefore I deem it fit to award Rs.72,00000 (Seventy two thousand only) (6 months income) towards loss of income during laid up period.
26. Looking to the days of treatment and facts of the case, I deem it fit to award Rs.50,00000 (Fifty thousand only) towards loss of amenities and nutritious food.
(SCCH3) 14 MVC 5708/1927. Further I deem it fit to award Rs.25,00000 (Twenty five thousand only) towards attendant charges and conveyance.
28. The petitioner has produced various medical bills at Ex.P.17 which are 32 in Nos. for Rs.12,82300, which are supported by 14 prescriptions at Ex.P.18. On perusal of medical bills, it is noticed that Sl. No.9 receipt for Rs.5,80200 is given as concession under CM relief fund, but it is included in final amount, hence the said amount has to be deducted. There is no serious dispute with regard to other medical bills produced. Looking to the nature of injuries, in my opinion the petitioner might have incurred such expenses and hence after deducting the said amount, I deem it fit to award Rs.7,02100 (Seven thousand twenty one only) towards medical expenses.
29. P.W.2 doctor has deposed that petitioner is advised to undergo another operation for correction of nonunion of fracture of left tibia, but he has not stated the estimated cost and there is no such specific material in this regard. Therefore, looking to the need of the petitioner, I deem it fit to award Rs.20,00000 (Twenty thousand only) towards future medical expenses.
(SCCH3) 15 MVC 5708/1930. Therefore, the petitioner is entitled for total compensation of Rs.3,58,10000 (Three lakhs fifty eight thousand one hundred only) as under:
01. Loss of future income Rs.1,44,00000
02. Pain and Agony 40,00000
03. Medical expenses 7,02100
04. Loss of amenities and 50,00000 nutritious food
05. Attendant charges and 25,00000 conveyance
06. Loss of income during laid up 72,00000 period
07. Future medical expenses 20,00000 TOTAL Rs.3,58,02100 rounded off to Rs.3,58,10000
31. Regarding liability: As held on Issue No.1 there is contributory negligence by the petitioner and the rider of vehicle of respondent, relying on the Judgment of Division Bench of Hon'ble High Court of Karnataka in MFA No.3004/2009 between Managing Director, KSRTC, Hassan Vs Andrew Lucas decided on 09012020, I am of the opinion that when the petitioner has crossed the road where there is no zebra cross, he has also contributed for the accident and the contribution can be considered at 20% as per the referred Judgment. Therefore, the respondent Nos.1 (SCCH3) 16 MVC 5708/19 and 2 are jointly and severally liable to pay the compensation at 80% and 20% to be borne by the petitioner on his own. Hence, Issue No.2 is answered partly in the Affirmative.
32. Issue No.3: In view of my findings on Issue Nos.1 and 2 as above and with regard to awarding the interest is concerned, in view of Judgment of Hon'ble High Court of Karnataka in MFA No.103557/2016 between Shri Ram General Insurance Co Ltd. Vs Smt Lakshmi and others, the petitioner is entitled for simple interest at the rate of 6% per annum from the date of petition till deposit. As such I proceed to pass the following: ORDER The claim petition filed by the petitioner U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
Petitioner is entitled for Rs.2,86,48000 (Two lakhs eighty six thousand four hundred eighty only) (80% of Rs.3,58,10000) as compensation with interest at 6% p.a. (the interest awarded is not applicable to future medical expenses of (SCCH3) 17 MVC 5708/19 Rs.20,00000) from the date of petition till the date of deposit. The petitioner shall borne 20% on his own.
Respondent Nos.1 and 2 are jointly and severally liable to pay the above award amount to the petitioner. However, in view of valid insurance policy, respondent No.2 Insurance Company is directed to pay the said amount and shall deposit the same within time stipulated under section 168(3) of M.V. Act.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalized bank or schedule bank for a period of three years and the remaining amount shall be released to him through Epayment on proper identification without any further proceedings. However, he is at liberty to withdraw periodical interest accrued on his deposit amount from time to time.
The advocate's fee is fixed at Rs.50000.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in open court, on this the 22 nd day of March 2022).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
(SCCH3) 18 MVC 5708/19ANNEXURE List of witnesses examined for the petitioner:
P.W.1 Shafiulla
P.W.2 Dr.Ramachandra
List of documents marked on behalf of the
petitioner:
Ex.P.1 Copy of FIR
Ex.P.2 Copy of Complaint
Ex.P.3 Copy of Spot Mahazar
Ex.P.4 Copy of Spot Sketch
Ex.P.5 Copy of Wound certificate
Ex.P.6 Copy of Charge sheet
Ex.P.7 Certified copy of Order sheet in CC
10725/2019
Ex.P.8 Copy of 133 Notice
Ex.P.9 Copy of Reply to 133 Notice
Ex.P.10 Bregister extract of vehicle bearing reg.
No.KA03HX8102
Ex.P.11 Discharge summary of People Tree
hospital
Ex.P.12 to Discharge summaries of Victoria hospital Ex.P.14 (03 in Nos.) Ex.P.15 One Photo along with CD Ex.P.16 Notarized copy of Voter ID card of petitioner Ex.P.17 Medical bills (32 in Nos.) for Rs.12,82362 Ex.P.18 Prescriptions (14 in Nos.) Ex.P.19 OPD book Ex.P.20 One Xray Ex.P.21 Case sheets (02 in Nos.) List of witnesses examined for the Respondents:
R.W.1 Suresh
(SCCH3) 19 MVC 5708/19
List of documents marked on behalf of the
Respondents:
Ex.R.1 Copy of Policy
Ex.R.2 Copy of Spot Sketch
Ex.R.3 Copy of Spot Mahazar
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.