Bangalore District Court
Sri. M.T.Mariyappa vs The Managing Director on 8 August, 2016
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 8th DAY OF AUGUST, 2016
PRESENT: SMT. ROOPA K.N. B.Sc, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.5214/2014
PETITIONER : Sri. M.T.Mariyappa
S/o. Late. Thimmegowda
Aged about 56 years
Resident at No.245/296,
1st Floor, 2nd Stage, Nagarabhavi,
Bengaluru - 560 072.
Also at,
No.25, 2nd Cross,
Srigandadakavalu,
Kottigepalya,
Bengaluru - 590 091.
(By Sri.Prabhakar Gowda K.V.
Adv.,)
V/s
RESPONDENTS : 1.The Managing Director
The MD VRL Logistics Ltd.,
Regd. and Adm. Office at
NH-4, Bengaluru Road,
Varur Hobli,
Karnataka - 581 207.
2 MVC No.5214/2014
SCCH 5
(R.C.Owner of the HGV-Heavy
Goods Vehicle bearing Reg.No.
CTW-5590)
(By Sri.Aravind M. Neglur, Adv.,)
2. The New Assurance Company
Ltd.,
Motor Third Claim HUB,
No.9/2, Mahalakshmi Chambers,
M.G.Road,
Bengaluru - 560 027.
(Insurer of HGV-Heavy Goods
Vehicle bearing Reg.No.CTW-5590)
(Policy No.67070031130200007975
valid from 03.01.2014 to
02.01.2015)
(By Sri.K.H.Dinesh Reddy, Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 26.07.2014 at about 1.30 p.m. when he was proceeding on his Hero Honda Splendor Bike bearing Reg.No.KA-42-E-524 on Bengaluru-Mysore Road, 3 MVC No.5214/2014 SCCH 5 towards Nayandahalli, Heavy Goods Vehicle bearing Reg.No.CTW-5590 came from the right side of the Petitioner's Bike in a rash and negligent manner and dashed against the Petitioner's Bike, as a result of which, he fell down and sustained head injury and he was shifted to Mysore Road Hi-Tech Hospital, where he took first aid and later he was shifted to BGS Global Hospital, Kengeri, wherein he was inpatient from 26.07.2014 to 28.07.2014. After diagnosis the Petitioner underwent thin left temporo parietal SDH-1mm, longitudinal fracture of sphenoid sinus, soft tissue density in bilateral maxillary, ethmoid sinuses-sinusitis, hemosinus noted in left sphenoid sinus and screening cervical spine shows degenerative changes. Towards this he has spent nearly Rs.5,00,000/- including incidental expenses. According to him, earlier he was working as Revenue Inspector in KIADB and drawing salary of Rs.35,000/-p.m. and because of these injuries now he is unable to work as he is frequently getting headache and giddiness and 4 MVC No.5214/2014 SCCH 5 partially he has lost eyesight and he cannot talk properly etc., Hence, he has claimed compensation of Rs.20,00,000/-.
3. Both Respondents No.1 and 2 filed their respective written statement.
4. Respondent No.1 being the owner of the offending vehicle denied the accident and negligence by the driver of Heavy Goods Vehicle. Similarly, Respondent No.2 also denied the negligence by the driver of Respondent No.1 and also denied the expenses incurred by the Petitioner towards medial and other heads. It also denied the physical inability of the Petitioner as alleged in the claim petition. Hence, both the Respondents sought for dismissal of the petition.
5. On the basis of the above pleadings, my predecessor in the office has framed the following:
::ISSUES::
1. Whether Petitioner proves he sustained injuries in road traffic accident that occurred on 26.07.2014 at about 1.30 p.m. 5 MVC No.5214/2014 SCCH 5 on Bengaluru-Mysore road, near Mysore Road Bajaj Showroom, while the Petitioner was proceeding on Hero Honda Splendor Plus Motor Cycle bearing Reg.No.KA-42-E-
524, due to rash and negligent act of driving of the HGV-Heavy Goods Vehicle driver, vehicle bearing Reg.No.CTW-5590, has resulted in an accident?
2. Whether Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
6. In order to prove the above Issues, Petitioner examined himself as PW-1 and he got marked Ex.P.1 to Ex.P.16. Further, Dr.Santosh N.U., Consultant Neurosurgeon, BGS Global Hospital, Bengaluru has been examined as PW-2 and on his side Ex.P.18 to Ex.P.20 were got marked. Per contra, Assistant Manager of 2nd Respondent examined as RW-1 and got marked documents Ex.R.1 and Ex.R.2.
7. Heard the arguments of learned counsel for the Petitioner and Respondents.
8. My findings on the above issues are as under: 6 MVC No.5214/2014
SCCH 5 Issue No.1 : In the Affirmative Issue No.2 Partly in the affirmative, Petitioner is entitled for total compensation of Rs.1,26,000/-
along with interest at 6% p.a. from the Respondents No.2.
Issue No.3 : As per final order for the following:
::REASONS::
9. Issue No.1 and 2: As these two issues are interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
10. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence of driver of the Heavy Goods Vehicle bearing Reg.No. CTW-5590.
11. In order to prove above said facts, Petitioner examined himself as PW-1 and his affidavit is replica of the petition and he got marked documents as Ex.P.1 to Ex.P.17, out of which Ex.P.1 to Ex.P.5, they are the 7 MVC No.5214/2014 SCCH 5 Police records, which includes FIR with Complaint, Mahazar with Sketch, MVI Report, Wound Certificate and Charge Sheet.
12. Petitioner was cross-examined by the counsel for the 2nd Respondent, wherein he stood by his statement that he was wearing helmet on the date of the accident and there was about 11 ft. space towards left of his vehicle and right side there was no space. He denied the suggestions put to him during the course of cross- examination. He admitted that, immediately after the accident, he was on leave for a period of one month and after his joining of duty he was paid one month salary by his department. He admitted that after the accident he is continuing in the same job and he is getting more salary than earlier and he was given with an increment. According to him, after this accident, he cannot hear properly and for this reason he has been provided with an assistant. But, he has not given any written requisition to the department in this regard. 8 MVC No.5214/2014
SCCH 5
13. PW-2 Doctor from BGS Global Hospital filed his affidavit in respect of his chief-examination and deposed that, this Petitioner was brought to his hospital on 26.07.2014 with history of road traffic accident and when he was examined by this PW-2 and after doing CT- scan of the brain, he found thin left temporo parietal SDH, longitudinal fracture of left temporal bone and extending to sphenoidal sinus. X-ray of left shoulder showed comminuted fracture of let scapula. Left scapular fracture was managed by arm pouch, head injury was managed conservatively and since there was ear bleeding, petitioner was referred to ENT Surgeon. According to him, very recently on 13.10.2015 he made a fresh clinical examination of the Petitioner and the Petitioner now suffers from permanent disability of 82% to the whole body.
14. Per contra, Assistant Manager of the 2nd Respondent Company has been examined as RW-2 and he got marked documents Ex.R.1 and Ex.R.2. 9 MVC No.5214/2014
SCCH 5
15. I have carefully perused the oral and documentary evidence, out of which, Ex.P.1 to Ex.P.5 are the Police records and Ex.P.6 and other are the medical records, ration card, policy particulars etc., It is not in dispute that, Petitioner is Government Employee and he met with an accident on 26.07.2014. The Police records shows that the accident had taken place because of the rash and negligent driving by the driver of the 1st Respondent vehicle.
16. Now comes the question regarding quantum of compensation to be awarded. It is also not in dispute that, Petitioner is continuing in his job and getting the same salary also with an additional increment i.e., he is getting more salary than what he was getting earlier.
17. In this regard, the learned counsel for 2nd Respondent relied a decision reported in ILR 2010 KAR 2439 in between Subash V/s. The New India Assurance Co. Ltd., and others, wherein the Hon'ble High Court of Karnataka has clearly held that -
10 MVC No.5214/2014
SCCH 5 'The Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in service, then, the question of awarding compensation towards loss of future income does not arise'.
18. In the case on hand, the Petitioner in his cross-examination clearly admitted that, he was inpatient for one month and thereafter again after joining his duty, he was paid with full month salary for the leave period. Hence, question of awarding compensation regarding loss of income during his absence does not arise.
19. Coming to the question of disability assessed by the PW-2 for calculation of future loss of income, at this stage, I would like to make some observations in respect of affidavit sworn by this 11 MVC No.5214/2014 SCCH 5 PW-2. If we peruse the affidavit of PW-2, he is a Consultant Neurosurgeon and in this case Petitioner had sustained fracture of left scapula of left shoulder and left temporo parietal SDH. In his affidavit it is clearly mentioned that, left scapular fracture was managed by arm pouch and head injury was treated conservatively and since there was bleeding from ear, Petitioner was advised to meet ENT Surgeon. But, in his affidavit without making any calculations by applying formula provided in the guidelines supplied by the Central Government, he has blindly calculated the permanent disability to the whole body as 82%. It is true that, Petitioner had sustained fracture for his left shoulder i.e., left scapula. This Doctor being a Neurosurgeon cannot be a competent person to assess the orthopedic disability of a person. Even this PW-2 being responsible Doctor had not taken ENT advise before filing this affidavit as to on what 12 MVC No.5214/2014 SCCH 5 basis he has assessed permanent disability of 82% to the whole body when we calculate 80% of the disability in case of Amputation.
20. In my opinion, this PW-2 by colluding with PW-1 has gone to an extent of forgetting his professional ethics and has sworn to a false affidavit. In his cross-examination he has clearly admitted that, he has not obtained any report from ENT Doctor and even he has not consulted ENT Doctor who treated this Petitioner for ear problems. According to him, he has only made calculation with regard to clinical examination before giving his opinion. He admitted that, disability with regard to neurological is different from the disability inrespect of ENT and he also admits that he is not Orthopedic surgen. All these facts clearly goes to show that, for financial gain this PW-2 has sworn to a false affidavit. Inview of this, I disagree with the disability assessed by this PW-2. At this stage, I 13 MVC No.5214/2014 SCCH 5 would like to go step further and would rather say that necessary steps has to be taken against this type of Doctor's, who come to the Court for financial gain and swear false affidavit by assessing disability on the higher side only to help the Petitioners to get more compensation and in my opinion, this type of conduct of some Doctor's are to be curbed at the initial stage itself.
21. Even this Petitioner has produced Ex.P.13, which is Certificate issued by one Mr.Zubin Vinod, Clinical Audiologist, Bloom-Senso Hearing Center, BGS Hospital, Bengaluru, dated 07.08.2014 wherein, this Audiologist has mentioned that on examination of this Petitioner he diagnosed a profound sensoineural hearing loss in the left ear as per the pure-tone audiometry done on 02.08.2014 at the same centre and for that he is going to provide CROS hearing aid system, which costs around Rs.50,000/- and Rs.55,000/-, totally Rs.1,05,000/-. If the cross- 14 MVC No.5214/2014
SCCH 5 examination of the PW-1 is perused, he has categorically admitted that-
C¥ÀWÁvÀ DzÀ ªÉÄÃ¯É £À£U À É ¸ÀjAiÀiÁV Q« PÉý¸ÀÄwÛgÀĪÀÅ¢®è. PÉ®¸À ªÀiÁqÀ®Ä vÉÆAzÀgÉ DUÀÄwÛgÀÄvÀÛzÉ CAvÀ ºÉý ¸ÀA¸ÉÞUÉ °TvÀªÁV ªÀÄ£À« ¤ÃrgÀĪÀÅ¢®è. DzÀgÉ ªÀiËTPÀªÁV ºÉý M§â ¸ÀºÁAiÀÄPÀ££À ÀÄß ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ. £Á£ÀÄ £ÀªÀÄä ªÀQîjUÉ C¥ÀWÁvÀ¢AzÀ £À£U À É ¸ÀjAiÀiÁV Q« PÉý¸ÀĪÀÅ¢®è CAvÀ ºÉýzÉÝ JAzÀÄ CfðAiÀÄ°è §gÉ¢gÀÄvÁÛgÉÆà CxÀªÁ E®èªÉÇà CAvÀ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. £ÀªÀÄä ¸ÀA¸ÉÝAiÀĪÀgÀÄ C¥À¥sÁvÀ CzÀ ªÉÄÃ¯É £Á£ÀÄ ¸ÀjAiÀiÁV PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀÅ¢®è CAvÀ ºÉý £À£U À É £ÉÆÃn¸À£ÀÄß PÉÆnÖgÀĪÀÅ¢®è. £Á£ÀÄ gÀeÉ ªÀÄÄV¹PÉÆAqÀÄ PÀvÀðªÀåPÉÌ ºÁdgÁzÁUÀ £À£ÀUÉ Q« PÉý¸ÀĪÀÅ¢®è PÉ®¸À ªÀiÁqÀ®Ä vÉÆAzÀgÉ DUÀÄvÀz Û É CAvÀ ºÉý ¸ÀA¸ÉÞAiÀĪÀgU À É °TvÀªÁV Cfð §gÉzÀÄPÉÆnÖgÀĪÀÅ¢®è.
22. If this portion of cross-examination is perused, PW-1 being a Government Employee he is playing fraud both with the Court and also with his department. If at all, he had sustained any severe injuries to ears and he suffers from hearing disability, he would have not been allowed to continue with his same 15 MVC No.5214/2014 SCCH 5 job or he would have made it in writing to his higher authority to get an assistant. If Ex.P.13 is perused it has been issued by an Audiologist who is having a Hearing Center at BGS Hospital, but unfortunately his education qualification is not mentioned . In the absence of these facts, I hold that Ex.P.13 is only created for the purpose of this case and the person who has issued is not a competent person to issue the same. Petitioner has produced one Audiological Evaluation Form-A, which has been issued by Dr.Srinivas D. Ramanna, ENT and Head & Neck Surgeon, wherein, the right ear was shown normal, but some post traumatic hearing problem is shown for the left ear as ion the date of accident. But, neither this Doctor who has issued this document nor any other competent ENT Doctor has been examined to prove ear disability for this petitioner.
23. Coming to the question of damages to the vehicle, Petitioner has produced Ex.P.15 which is bill issued by Hero Good Life Services Center, but the 16 MVC No.5214/2014 SCCH 5 Petitioner has not examined either the person who repaired the vehicle, and who has issued Ex.P15 or any mechanic to show the extent of damages sustained to his vehicle. Accordingly, Petitioner is not entitled for any compensation towards vehicle damages.
24. Coming to the question of transportation charges, he has produced Ex.P.17 worth Rs.8,200/-, but he has not adduced the evidence of author of above said documents but even then he is entitle for nominal amount towards this head.
25. Considering the nature of injuries sustained by the Petitioner as could be seen from the photographs and medical records, the Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
a) to treatment, hospitalization, 66,000-00
medicines
17 MVC No.5214/2014
SCCH 5
(Rs.65,481/- rounded off
Rs.66,000/-)
b)nourishing food and -
miscellaneous expenditure
c) transportation expenses 10,000-00
2. Loss of earnings which the -
injured would have made had he
not been injured, comprising:
a) Loss of earnings during period -
of treatment
b) Loss of future earnings on -
account of permanent disability
3. Future medical expenses -
II. NON-PECUNIARY DAMAGES (General Damages)
4. Damages for pain, suffering and 50,000-00 trauma as a consequence of the injuries
5. Loss of amenities ( and/or loss -
of prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity) Total 1,26,000-00
26. Accordingly, Petitioner is entitled for compensation of Rs.1,26,000/-.
27. In this case, Respondent No.2 being the Insurance Company issued policy infavour of Respondent 18 MVC No.5214/2014 SCCH 5 No.2 in respect of Heavy Goods Vehicle bearing Reg.No.CTW-5590. Hence, Respondent No.1 and 2 are jointly and severally liable to pay the compensation to the Petitioner. Respondent No.2 being the insurer has to indemnify the risk of Respondent No.1. Accordingly, Issue No.1 answered in affirmative and Issue No.2 is answered partly in affirmative.
28. Issue No.3: On the basis of discussions made on Issue Nos.1 & 2, I proceed to pass the following:
::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.
Petitioner is entitled for total compensation of Rs.1,26,000/- (Rupees One Lakh Twenty Six Thousand Only) with interest at the rate of 6% p.a., from the date of petition till the date of realization.
2nd Respondent is liable to indemnify the risk of 1st Respondent and has to deposit the compensation amount with interest, within a month from the date of this order.19 MVC No.5214/2014
SCCH 5 Out of total compensation awarded to the Petitioner, entire amount to be released to him, on proper identification.
The Advocate`s fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 8th day of August, 2016) (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW-1 : Sri. M.T.Mariyappa PW-2 : Dr. Santhosh N.U.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:
RW-1 : Sri. C.K. Surya Prakash LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P.1 : Copy of FIR with complaint Ex.P.2 : Copy of Mahazar with sketch Ex.P.3 : Copy of Motor Vehicle Accident Report Ex.P.4 : Copy of Wound Certificate 20 MVC No.5214/2014 SCCH 5 Ex.P.5 : Copy of Charge Sheet Ex.P.6 : Discharge summary Ex.P.7 : Authenticate copy of Driving LIcence Ex.P.8 : Authenticate copy of RC Book Ex.P.9 : Original Policy Ex.P.10 : Authenticate copy of Ration Card and (a & b) Office ID Ex.P.11 : Salary Slip Ex.P.12 : Total 35 Medical Bills of Rs.81,862/-
with one Advance Bill Ex.P.12(a) : Medical Test and Report with four bills of Rs.7,350/-
Ex.P.13 : Quotation with estimate for future medical expenses of Rs.1,05,000/- Ex.P.13(a) : Hearing date Quotation Ex.P.14 : Total 9 Prescriptions with CT-Scan Report Ex.P.14(a) : One Prescription Ex.P.15 : Two Wheeler Bill with travelling expenses of Rs.38,065/-
Ex.P.16 : Total 8 Photographs with 1 CD Ex.P.17 : Travelling Bill Ex.P.18 : IP Record Ex.P.19 : OP Record Ex.P.20 : One CT-film with Report
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:
Ex.R.1 : Authorisation Letter Ex.R.2 : Insurance Policy with conditions (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.