Bangalore District Court
Sri. V.Shashikumar vs United India Insurance Co on 28 April, 2018
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL 2018
PRESENT: SMT. SHARMILA.S. B.COM.,LL.B.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.3327/2017
PETITIONER : Sri. V.Shashikumar
S/o. D.Venkatesh
Aged about 25 years
Residing at No.27,
Thammanayakanahalli (Vg. & Post),
Kasaba Hobli,
Anekal Taluk,
Bengaluru District.
(By Sri.P.Suresh, Adv.,)
V/s
RESPONDENTS : 1. United India Insurance Co.
Ltd.,
Regional Office
(T.P.Hub), Krishi Bhavan Building,
6th Floor, Near Hudson Circle,
Nrupathunga Road,
Bengaluru - 560 001.
(Rept. by its Incharge Manager
Insurer of the vehicle bearing
Reg.No.KA-02-P-2161
Policy No.0727003116P106311667
Validity 11.08.2016 to 10.08.2017)
(By Sri.Ravish Benni, Adv.,)
2 MVC No.3327/2017
SCCH 5
2. Sri. K.P. Jabir
S/o. Moideen
Major in age
R/at: Moon Mist Apartments,
Doddathogur,
Electronic City,
Anekal Taluk.
(Owner of the Vehicle)
(Exparte)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 01.06.2017 at about 7.30 p.m., he was going in a Motor Cycle bearing Reg.No.KA-51-ET-4734, near Kumbaranahalli Village, Jigani, Anekal, Bengaluru very carefully, cautiously and observing traffic rules, at that time, all of a sudden a Maruthi Omni Car bearing Reg.No.KA-02-P-2161, driving by its driver at high speed in a rash and negligent manner, so as to endanger to human life and dashed against the Petitioner and his 3 MVC No.3327/2017 SCCH 5 Motorcycle. Due to impact he fell down and sustained fracture of right Dento Alveolar, head injuries and other injuries all over the body. Immediately after the accident he was taken to Vijayasheree Hospital, Jigani, Anekal, where he was taken treatment from 01.06.2017 to 08.06.2017 as an inpatient. He undergone several investigations, after that he underwent surgery and treated the injures. At the time of discharge till today he is taking follow up treatment as per the advise of the Doctors. He has spent Rs.1,80,000/- for medical expenses, Rs.20,000/- towards food and nourishment and incurred Rs.20,000/- towards conveyance expenses.
3. Further the Petitioner contends that, he was working as Quality Checker in Richa Global Sports Pvt., Ltd., and earning Rs.10,000/- per month. Due to accidental injuries he is unable to attend to his work. Therefore, he sustained loss of income from the date of accident till today. Thus he suffered permanent 4 MVC No.3327/2017 SCCH 5 disability. Hence, he has claimed compensation of Rs.12,00,000/- against Respondents No.1 and 2. 4. After service of summons, Respondent No. 1 appeared through counsel. The 1st Respondent filed its objection statement. In spite of giving sufficient opportunity, the 2nd Respondent not appeared before the Court. Hence, placed exparte.
5. Respondent No.1 in its objection statement denied averments of the petition inter-alia contended that, in view of the judgment passed by Hon'ble Supreme Court in Civil Appeal No.1709-1800/2006, this Respondent is not liable to pay interest on future loss of income, future loss of amenities and future medical expenses. Further this Respondent admits the issuance of policy in respect of vehicle Car bearing Reg.No. KA-02-P-2161 vide policy No.0727003116P106311667 covering risk w.e.f 11.08.2016 to 10.08.2017. The liability of this Respondent is subject to terms and 5 MVC No.3327/2017 SCCH 5 conditions appended to the policy, provisions of MV Act and verification of valid vehicle documents.
6. This Respondent further contends that, the petition is bad in law for non-joinder of proper parties to the petition. This Respondent raised objection available under Sec.134(c) of M.V.Act. Except this all other defences are formal in nature and accordingly prays to dismiss the claim petition filed against it.
7. On the basis of the above pleadings, I have framed the following :
::ISSUES::
1. Whether Petitioner proves that on 01.06.2017 at about 7.30 pm., while he was going on a Motor Cycle bearing Reg.No. KA-51-ET4734, when he reached near Kumbaranahalli village, Jigani, Anekal, Bengaluru, at that time a driver of the Maruthi Omni Car bearing Reg.No.KA-02-P-
2161 driven in a rash and negligent manner and dashed against the bike, as a result of which petitioner fell down and he sustained grievous injury, as mentioned in claim petition?
6 MVC No.3327/2017
SCCH 5
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
8. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and got marked Ex.P.1 to Ex.P.15. Dr.Girish.G, Consultant Maxillofacial Surgeon, Vijayashree Multi Speciality Hospital has been examined as PW-2 and got marked Ex.P.16 to Ex.P.18. Per contra, 1st Respondent's counsel filed application U/s 170 of M.V.Act and not submits no oral evidence on its side.
9. Heard the arguments of learned counsel for the Petitioner and Respondent No.1.
10. My findings on the above 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:
7 MVC No.3327/2017
SCCH 5
::REASONS::
11. 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.
12. 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 on the part of driver of the Maruthi Omni Car bearing Reg.No.KA-02-P-2161. In order to prove the above said issues, Petitioner examined himself as PW-1 and Dr.Girish as PW-2 and got marked in all 18 documents.
13. In order to prove this fact, he has produced Police records which are marked as Ex.P.1 to Ex.P.5 i.e., FIR with Complaint, Mahazar, IMV Report, Charge sheet and Wound Certificate. If we peruse the oral and documentary evidence adduced by the Petitioner i.e., Ex.P.1 FIR with Complaint, which clearly discloses 8 MVC No.3327/2017 SCCH 5 01.06.2017 at about 7.30 p.m., he was going in a motor cycle bearing Reg.No.KA-51-ET-4734, near Kumbaranahalli village, Jigani, Anekal, Bengaluru very carefully, cautiously and observing traffic rules, at that time all of a sudden a Maruthi Omni Car bearing Reg.No.KA-02-P-2161 driving by its driver at high speed in a rash and negligent manner, so as to endanger to human life and dashed against to the Petitioner and his Motorcycle. Due to impact he fell down and sustained fracture of right Dento Alveolar, head injuries and other injuries, all over the body.
14. On perusal of contents of Spot Mahazar clearly shows that, at the time of the accident, the driver of the car came from Kumabaranahali from behind the Motor cy#cle in a rash and negligent manner and dashed against the Motor cycle proceeding in front of the car in which the Petitioner was travelling. Moreover, inspite of service of notice, the 2nd Respondent not appeared before 9 MVC No.3327/2017 SCCH 5 the Court. From this an adverse inference can be drawn that the owner of the vehicle has admitted the case of the Petitioner that this accident took place only on the negligence of the driver of the offending vehicle.
15. The only contention of the Respondent No.2 is that, he has issued the petition is bad for non joinder of necessary parties and the Respondent is not liable to pay future loss of income, amenities and medical expense. Though the 1st Respondent's counsel filed application U/s 170 of M.V.Act and admitted the issuance of policy in favour of 2nd Respondent with respect to the offending vehicle, but to substantiate its contention the 1st Respondent has not produced any documents nor adduced the evidence. Hence, the defence taken by this Respondent cannot be considered without any documents. Hence, it can be easily come to the conclusion that the 1st Respondent being the insurer and the 2nd Respondent being the R.C.owner of the offending 10 MVC No.3327/2017 SCCH 5 vehicle are jointly and severally liable to pay compensation to the petitioner.
16. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, he was aged 25 years at the time of the accident. In order to prove his age, the Petitioner has produced Ex.P.15 i.e., Notarized copy of Aadhaar Card wherein his date of birth was mentioned as 16.6.1996 and the accident took place on 01.06.2017. Hence, on the basis of the above said records it is considered that, Petitioner was aged 21 years as on the date of the accident. As per the Sarla Varma's Case, the proper multiplier applicable to the age group of 15 to 25 is 18.
17. Petitioner has contended that, he was working as Quality Checker and earning Rs.10,000/- per month. In order to prove his avocation and income, the petitioner has not produced any document. Without any documents it cannot be considered that the Petitioner is doing 11 MVC No.3327/2017 SCCH 5 Quality Cheker and earning Rs.10,000/-. As this accident is of the year 2017, it is just and proper to consider notional income of the Petitioner as Rs.8,000/-.
18. Petitioner had sustained Facial Odema over right side of face, mobility of dentoalveolar segment of maxilla right, avulsion of upper incisors 4 teeth, laceration wound over right corner of themouth, lacerated wound over lower lip and CT face reveals right dentoalveolar fracture of maxillary fracture for which he has under gone ORIF with 1.5 mm 4 hole with gap and mini plates and 1.5 mm 2 Nos. screws. This fact is corroborated by the contents of Ex.P.5 and Ex.P.6 i.e., Wound Certificate and Discharge Summary issued by the Vijayashree Multi Speciality Hospital, wherein he took treatment as inpatient from 01.06.2017 to 08.06.2017. The petitioner has also produced medical bills to the tune of Rs.1,39,351/- marked as Ex.P.11, Lab reports Ex.P.9, 12 MVC No.3327/2017 SCCH 5 Follow up records Ex.P8, CT Scan Reports at Ex.P10. Further the Petitioner admits that, he has not produced prescriptions corresponding to medical bills. But in the medical bills the Petitioner's name has been surfaced. Hence, he is entitled for medical expenses.
19. PW-2 is Dr.Girish.G, Consultant Maxillofacial Surgeon at Vijayashree Multi Speciality Hospital, Bengaluru who has filed his affidavit in lieu of chief- examination and got marked Ex.P.16 to 18 i.e., Case Sheet, X-Ray films and OPD File. PW-3 is the treated Doctor. He assessed disability of the Petitioner to an extent of 10% to the whole body. He has assessed disability after nine months from the date of the accident. Admittedly Petitioner had suffered right dentoalveolar fracture of maxillary fracture and in the cross- examination PW-2 admitted that, now the fractures are united and injuries also healed, teeth replacement was also done, it seems that the disability assessed is higher. 13 MVC No.3327/2017
SCCH 5 Hence, the whole body disability is considered as 8% instead of 10%.
20. PW-2 stated that the Petitioner has to undergo one more surgery for removal of mini plates under general anesthesia and cost would be around Rs.40,000/-. But he has not produced any estimation. Hence, the petitioner is entitled for compensation of Rs.10,000/- as future medical expenses.
21. 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, 1,40,000-00
medicines, transportation
(Rs.1,39,351/- rounded off
Rs.1,40,000/-)
b)nourishing food and 5,000-00
miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had he
not been injured, comprising:
14 MVC No.3327/2017
SCCH 5
a) Loss of earnings during period -
of treatment
b) Loss of future earnings on 1,38,000-00
account of permanent disability
(Rs.8,000/-x12x18x8%=
Rs.1,38,240/- rounded of
Rs.1,38,000/-)
3. Future medical expenses 10,000-00
II. NON-PECUNIARY DAMAGES
(General Damages)
4. Damages for pain, suffering and 25,000-00
trauma as a consequence of the
injuries
5. Loss of amenities ( and/or loss 10,000-00
of prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity) Total Rs.3,28,000-00
22. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.3,28,000/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.10,000/-) from the date of petition till its realization.
23. Relying upon a judgment of the Hon'ble Apex Court reported in 2013 AIR SCW 5375 in between Minu 15 MVC No.3327/2017 SCCH 5 Rout and ors. V/s. Satya Pradyumna Mohapatra and ors., with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.13 of the judgment, Hon'ble Apex Court held that, 'Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date application till the date of payment' and also by following the principles laid down in (2011) 4 SCC 481: AIR 2012 SC 100 in between Municipal Council of Delhi V/s. Association of Victims of Uphaar Tragedy. In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a. 16 MVC No.3327/2017 SCCH 5
24. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.1 being the Insurance Company had issued policy in favour of Respondent No.2 in respect of Maruthi Omni Car bearing Reg.No.KA-02-P-2161 vide its policy No.0727003116P106311667 valid from 11.08.2016 to 10.08.2017 and it is valid and effective on the date of accident. Accordingly, the Respondent No.1 being the insurer and Respondent No.2 being the owner of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. However, Respondent No.1 has to indemnify Respondent No.2. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
25. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following:
::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.17 MVC No.3327/2017
SCCH 5 Petitioner is entitled for total compensation of Rs.3,28,000/- (Rupees Three Lakhs Twenty Eight Thousand Only) with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.10,000/-) from the date of petition till the date of realization.
The Respondent No.1 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, 75% to be released in favour of Petitioner by way of crossed cheque and remaining 25% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in his name.
The Advocate`s fee is fixed at Rs.1,000/-.
Draw award accordingly. (Dictated to the stenographer directly on the computer, thereof is corrected and then pronounced by me in the Open Court on this the 28th day of April 2018) (SHARMILA.S) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.18 MVC No.3327/2017
SCCH 5 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Sri. V. Shahi Kumar PW-2 : Dr. Girish G.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Mahazar Ex.P.3 : Copy of IMV Report Ex.P.4 : Copy of Charge Sheet Ex.P.5 : Copy of Wound Certificate Ex.P.6 : Discharge Summary Ex.P.7 : Notarized copy of Employment ID Card Ex.P.8 : Follow-up Record (4 in Nos.) Ex.P.9 : Lab Reports (4 in Nos.)
Ex.P.10 : CT-Scan Reports (3 in Nos.) Ex.P.11 : Medical Bills (28 in Nos.) for Rs.1,39,351/-
Ex.P.12 : 2 Photographs with 1 CD to Ex.P.14 Ex.P.15 : Notarized copy of Aadhaar Card Ex.P.16 : Case Sheet Ex.P.17 : X-ray Films (3 in Nos.) Ex.P.18 : OPD File LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
-NIL-19 MVC No.3327/2017
SCCH 5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
-NIL-
(SHARMILA S.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.