Bangalore District Court
Yamanagowda Alias Yamuna Gowda vs Mallesh on 31 July, 2024
KABC020348702021
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
DATED THIS THE 31st DAY OF JULY, 2024
PRESENT : SRI J.N.SUBRAMANYA, B.A., L.L.M.,
MEMBER, PRL. M.A.C.T.
M.V.C. No.5996/2021
PETITIONER: Yamanagowda ,
S/o.Amarappa @ Amaregowda,
Aged about 32 year,
R/at C/o. Dr.B.N.Thyagaraj
Farm House , Suttagatta village,
Motagondanahalli Post,
Sour Hobli, Magadi Taluk,
Ramanagara District and also
At No.92, Bhupura village,
Near Petrol Bunk Circle,
Lingasuru Taluk,
Raichur District.
(By Sri. Kumara K.G., Advocate ,
Advocate)
-Vs-
RESPONDENTS:1. Mallesh, S/o. Chaluvaiah,
S/o.B.Dayashankar,
No.13, 3rd Cross, Kapilanagara,
Laggere, Bengaluru.
SCCH-1 2 MVC No.5996/2021
And also at 969, 4th 'A' cross,
Sannakki Bayalu,
Kamakshipalya,
Bengaluru-560 079.
(Absent )
2. Krishnamurthy C.A.,
S/o. Anjanappa,
No.118, Cholanayakanahalli,
Tavarekere Hobli,
Bangalore South Taluk,
Bengaluru-560 103.
(By Sri G.N.Madaiah , Advocate)
3. HDFC ERGO General Insurance Co.Ltd.,
Office No.2/1-1, 2nd Floor,
11th Main Road, Jayanagara,
Bengaluru.
Policy No.2315 2039 6302 1400 000
Policy period 12.04.0218 to 11.04.2019
(By Sri K.Nagaraja , Advocate)
*******
JUDGMENT
Petitioner asserting to be an injured in a RTA filed petition under Section 166 of M.V.Act claiming compensation worth of Rs.50,00,000/- from the respondents who are the owner of Car bearing No.KA-05- AE-255, owner and insurer of the lorry bearing No.KA-41- C-9880 asserting that on 18.02.2021 at 5.30 p.m. when SCCH-1 3 MVC No.5996/2021 riding motorcycle bearing No.KA-05-HP-5613 from Suthakatte Farm House towards Nayandahalli , near Bychaguppe cross, Magadi-Bengaluru road, driver of Car bearing No.KA-05-AE-255 drove the same negligently from opposite direction, dashed the same to the motorcycle , thereby caused the accident , made the motorcycle and petitioner to fell on the road, at the same time driver of the lorry bearing No.KA-41-C-9880 drove the same negligently, made the wheels of the lorry to run over on the right shoulder of the petitioner , thereby caused injuries to the petitioner, petitioner took treatment at Kenganar hospital , Rajarajeshwari Medical College hospital , Hi-Tech hospital , Bengaluru, underwent amputation of right shoulder by spending Rs.4,00,000/-, petitioner being aged 32 years , working as Farm house in-charge owned by Dr.Thyagaraj used to earn Rs.20,000/-p.m. and in view of the amputation suffered permanent disability. Regarding accident Tavarekere police registered a case in crime No.43/2021 against the drivers of Car/lorry for the offence punishable under Section 279, 338 of IPC. SCCH-1 4 MVC No.5996/2021
2. Inspite of service of the notice respondent No.1 owner/driver of the car remained absent.
3. In response to the notice, the respondents No.2 and 3 owner and insurer of the lorry appeared through their advocates and filed separate written statements denying the allegation regarding reason, mode and consequence of the accident, age, occupation, income of the petitioner. Respondents No.2 and 3 asserted that due to sole negligence of the driver of the car accident taken place.
4. On the basis of the pleadings on 19.06.2023, this Authority has framed the following issues:
1. Whether the petitioner proves that on 18.02.2021 at about 5.30 p.m., near Bychaguppe cross Magadi-Bengaluru Road, Tavarekere, Bengaluru, he met with an accident and sustained injuries, was due to actionable negligence act on the part of the drivers of the Tata Indica car bearing registration No.KA-05-
AE-255 and Tipper Lorry bearing Reg.No.KA-41- C-9880 as alleged?
2. Whether the petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
SCCH-1 5 MVC No.5996/2021
5. On 17.07.2023, 31.07.2023, 05.09.2023, 04.01.2024 petitioner deposed as PW1 and produced 20 documents at Ex.P.1 to P.18, P.18(a) and 18(b). On 03.10.2023 petitioner produced the evidence of Dr. B.N.Roshan Kumar and staff of Hi-Tech hospital as PW 2 and 3 and produced 6 documents at Ex.P.19 to 24. On 24.01.2024 respondent No.2 owner of the lorry deposed as RW1 and produced 4 documents at Ex.R.1 to R.4, through RW-1 get marked 2 documents at Ex.P.25, P.25(a), Ex.P.26, P.26(a).
6. On 30.05.2024 learned Advocate appearing for the petitioner filed notes of arguments along with xerox copies of judgment dated 18.07.2019 passed by Hon'ble High Court of Karnataka in M.F.A. No.811/2015(MV-I) (Sri Rajanna @ Raju Vs. Sri Srinivas and another).
7. On 23.07.2024, petitioner, respondent No.3 insurer of the lorry bearing No.KA-41-C-9880 filed Joint Memo stating that petitioner and insurer of the lorry have settled their dispute by fixing compensation worth of Rs.13,00,000/-.
SCCH-1 6 MVC No.5996/2021
8. On 23.07.2024 learned Advocate appearing for petitioner, submitted that after investigation police have filed chargesheet against the driver of lorry bearing No.KA- 41-C-9880 , respondent No.1 driver and owner of the Car bearing No.KA-05-AE-255 for the offence punishable under Section 279, 338 of IPC against respondent No.1 with respect to 50% negligence.
9. I heard the submission made on behalf of the petitioner on the merits of the case and perused the records.
10. On the basis of material available in the file, my findings on the above issues are as under:
Issue No.1 ... Due to the negligent use of Car bearing No.KA-05-AE-255 and lorry bearing No.KA-41-C-9880 at the ratio 50:50 accident taken place.
Issue No.2 ... Excluding Rs.13 lakhs agreed by respondent No.3 to pay to the petitioner, respondent No.1 owner and driver of the car is liable to pay Rs.13 lakhs to the petitioner with current and future interest at 6% p.a as compensation.
Issue No.3 ... As per final order
for the following:-
SCCH-1 7 MVC No.5996/2021
REASONS
11. Issue No.1 :- In the claim petition and in the evidence affidavit petitioner stated that on 18.02.2021 at 5.30 p.m. when riding motorcycle bearing No.KA-05-HP-
5613 from Suthakatte Farm House towards Nayandahalli , near Bychaguppe cross, Magadi-Bengaluru road, driver of Car bearing No.KA-05-AE-255 drove the same negligently from opposite direction, dashed the same to the motorcycle, thereby made the motorcycle and petitioner to fell on the road, at the same time driver of the lorry bearing No.KA-41-C-9880 drove the same negligently, made the wheels of the lorry to run over on the right shoulder of the petitioner , thereby caused injuries to the petitioner, regarding accident Tavarekere police registered a case in crime No.43/2021 against the drivers of Car/lorry for the offence punishable under Section 279, 338 of IPC. In this case respondent No.1 inspite of service of notice remained absent.
12. Ex.P.1 and 2 are the copy of the FIR and statement of the petitioner - complaint pertaining to crime SCCH-1 8 MVC No.5996/2021 No.43/2021 registered by Tavarekere police against the drivers of the Car bearing No.KA-05-AE-255 and lorry bearing No.KA-41-C-9880 for the offence punishable under Section 279, 337,338 of IPC with respect to the accident taken place on 18.02.2021 at 5.30 p.m. Ex.P.3 is the copy of the spot mahazar. Ex.P.4 is the copy of the MVA report. Ex.P.5 is the property list in P.F.No.43/2021. Ex.P.6 is the copy of the wound certificate. Ex.P.7 is the copy of the chargesheet filed by Tavarekere police in crime No.43/2021 against respondent No.1, Mallesh, S/o. Cheluvaiah driver of Car bearing No.KA-05-AE-255 and driver of the lorry bearing No.KA-41-C-9880 for having committed offence punishable under Section 279, 338 of IPC and Section 196 of IMV Act. In the police records name of the petitioner is noted as rider of the motorcycle bearing No.KA-05-HP-5613 and injured of the accident. In this case, at this stage there are no reasons to disbelieve the evidence placed by the petitioner regarding reason, mode of accident. Hence, I have concluded that on 18.02.2021 at 5.30 p.m. when petitioner riding motorcycle bearing No.KA-05-HP-5613 from Suthakatte Farm House towards Nayandahalli , near SCCH-1 9 MVC No.5996/2021 Bychaguppe cross, Magadi-Bengaluru road, due to the negligent use of the Car bearing No.KA-05-AE-255 by the respondent No.1 and lorry bearing No.KA-41-C-9880 by its driver at the ratio of 50:50 both car and lorry was dashed to the motorcycle/petitioner , thereby caused accident resulting in injuries to the petitioner. Hence, I answer issue No.1 accordingly.
13. Issue No.2: In the evidence affidavit and petition, petitioner stated that in the accident he has suffered crush injury of right upper limb with left epidural hematoma with fracture of roof of left orbit with closed fracture of lateral condyle of right proximal tibia with closed lateral end of left clavicle fracture, injuries over left eye, deep cut injuries, lacerated wound over the upper and lower limbs with abrasion , took treatment at Kenganar hospital, then Rajarajeshwari Medical College hospital as an inpatient , underwent above elbow amputation of right upper limb with left sided craniotomy with evacuation of Epidural hematoma by spending Rs.6 lakhs suffered permanent disability.
SCCH-1 10 MVC No.5996/2021
14. In the evidence PW2, Dr. B.N.Roshan Kumar, stated that on 25.09.2023 when clinically examined the petitioner noticed amputation of the right upper limb above elbow and physical disability at 32.4% to whole body. In the evidence PW3, Medical Record Keeper of Hi-Tech hospital, Bengaluru produced case sheet.
15. Wound certificate , prescriptions, medical bills, discharge summary , photos and other medical records shows that in the accident petitioner suffered crush injury of right upper limb with left epidural hematoma with fracture of roof of left orbit with closed fracture of lateral condyle of right proximal tibia with closed lateral end of left clavicle fracture, took treatment at Rajarajeshwari Medical College hospital , Hi-Tech hospital , Bengaluru, underwent amputation of right upper limb above elbow by spending approximately Rs.1,58,000/-. In the file there are no documents regarding income of the petitioner. In the Aadhar card , date of birth of the petitioner is noted as 01.01.1989. Hence, I have calculated permanent disability in the following terms:
SCCH-1 11 MVC No.5996/2021
Age of the deceased as on the date of 32 years accident Notional income of the deceased as on the - Rs.15,000/- date of accident Functional disability suffered by the Rs.7,500/- petitioner 50% Multiplier Applicable 16 Loss of future income due to permanent Rs.14,40,000 disability 7500x12x16
16. Hence, Rs.4,00,000/- is awarded towards pain and sufferings, Rs.1,58,000/- is awarded towards treatment charges, Rs.50,000/- is awarded towards attendant, conveyance and nourishment charges, Rs.3,00,000/- (15,000x20) is awarded towards loss of income during treatment period , Rs.14,40,000/- is awarded towards loss of future income due to permanent disability (50% disability), Rs.2,00,000/- is awarded towards loss of amenities and future unhappiness, Rs.52,000/- is awarded towards future medical expenses.
17. Therefore, the total compensation awarded is Rs.26,00,000/-.
18. As referred above, in this case respondent No.1 owner/driver of the Car bearing No.KA-05-AE-255 SCCH-1 12 MVC No.5996/2021 remained absent and respondent No.3 insurer of the lorry settled the dispute with petitioner for Rs.13,00,000/-
admitting the 50% negligence of the driver of the lorry bearing No.KA-41-C-9880 for the accident.
19. In the total compensation of Rs.26,00,000/-, respondent No.3 insurance company has agreed to pay Rs.13,00,000/- to the petitioner. Hence, petitioner is entitled to receive Rs.13,00,000/- with current and future interest at 6%p.a. from respondent No.1 as surplus compensation. Hence, I answer issue No.2 partly in the affirmative and pass the following :
ORDER The application filed under Section 166 of IMV Act is partly allowed.
The respondent No.1 shall pay Rs.13,00,000/- with current and future interest at 6% p.a., to petitioner towards compensation excluding Rs.13,00,000/- agreed to pay by the respondent No.3-insurance company of the lorry bearing No.KA-41-C-9880 to the petitioner. The respondent No.1, shall deposit the compensation amount with interest within 3 months from today. SCCH-1 13 MVC No.5996/2021
After deposit of the compensation amount, entire compensation amount and interest may be released to the petitioner by crediting the same to his bank account directly.
Advocate's fee is fixed at Rs.1,000/- . Draw an Award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 31st day of July , 2024) (J.N.SUBRAMANYA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Yamanagowda @ Yamuna Gowda dt. 17.07.2023 31.07.2023, 05.09.2023, 04.01.2024, P.W.2 : Dr. B.N.Roshan Kumar dt. 03.10.2023 P.W.3 : Chandrashekar dt., 03.10.2023, Documents marked on behalf of the petitioners:
Ex.P-1 Certified copy of FIR Ex.P-2 Certified copy of complaint Ex.P.3 Certified copy of mahazar Ex.P.4 Certified copy of IMV Report Ex.P-5 Certified copy of Property list Ex.P-6 Certified copy of wound certificate Ex.P-7 Certified copy of chargesheet SCCH-1 14 MVC No.5996/2021 Ex.P.8 Certified copy of RC of Car bearing No.KA-05-AE-255 Ex.P.9 Certified copy of notice issued under Section 133 of M.V.Act Ex.P.10 Certified copy of RC of lorry bearing No.KA-41-C-9880 Ex.P.11 Certified copy of permit of tipper lorry Ex.P.12 Certified copy of insurance of Tipper lorry Ex.P.13 Medical prescriptions (75) Ex.P.14 Medical bills (96) Ex.P.15 Advance bills (3) Ex.P.16 Discharge summary of Hi-Tech hospital Ex.P.17 Notarized copy of Aadhar card of petitioner Ex.P.18 photo Ex.P.18(a) CD of Ex.P.18 Ex.P.18(b) Receipt of Ex.P.18 Ex.P.19 Case sheet Ex.P.20 Clinical notes Ex.P.21 X-rays (13) Ex.P.22 CT Scan films (2 sets) Ex.P.23 Authorization letter dt.03.10.2023 Ex.P.24 IP case sheet Ex.P.25 Indemnity bond
Ex.P.25(a) Signature of the witness Ex.P.26 Certified copy of reply to notice under Section 133 of IMV Act Ex.P.26(a) Signature of the witness Witnesses examined on behalf of the respondents :
RW1 : Krishnamurthy C.A. dt. 24.01.2024, 14.02.2024 SCCH-1 15 MVC No.5996/2021 Documents marked on behalf of the respondents:
Ex.R.1 Notarized copy of driving licence of driver of Tipper lorry Ex.R.2 Notarized copy of RC of tipper lorry Ex.R.3 Certified copy of insurance policy Ex.R.4 Certified copy of permit (J.N.SUBRAMANYA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.