Bangalore District Court
Usha.B vs Shridhar.T on 29 February, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.5092/2014
Dated this the 29th day of February 2016
Petitioner/s : Usha.B.
W/o Balakrishnan.P @ Balakrishna,
Aged about 46 years,
R/at No.377, Mission compound,
Kavala Bairasandra,
Bangalore-560045.
V/s
(By pleader Sri KBR)
Respondent/s 1. Shridhar.T.
S/o thimma Reddy,
No.833, Thimma Reddy building,
Krishna Reddy Layout,
Konappana Agrahara,
Bangalore-560100.
2.The Manager,
ICICI Lombard Gen.Ins.Co.Ltd.
2nd Floor, SVR Complex,
Madiwala, Hosur Main Road,
Bangalore-560068.
(R1- By pleader Sri SMR
R2-By pleader Sri ANH)
SCCH-14 2 MVC NO.5092/2014
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by her in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner was aged 46 years, was a loader and earning Rs.10,000/- per month. She was hale and healthy. On 11.11.2014, at about 8.45 am., the petitioner was walking on the left side of Konappana Agrahara road, slowly and cautiously and at that time, water tanker tractor bearing No.KA-51-T-2532 suddenly came in a rash and negligent manner and dashed against the petitioner. As a result, the petitioner sustained grievous injuries.
She was immediately taken to Sparch hospital for first aid and later, she was shifted to Bhagavan Mahaveer Jain Hospital, Bangalore for better treatment. She was admitted in the said hospital for 10 days. She sustained crush injury to the left foot, nerve injury, extensive skin loss, compound fracture of dislocation of mid foot joints and great toe injury. She was underwent surgery and was discharged from the hospital with an advice to take follow up treatment and bed rest. Accordingly, the petitioner has taken follow up treatment and physiotherapy. She sustained permanent disability. She can not walk freely, stand firmly, unable to climb steps. She can not attend daily activities and she can not walk without crutches. Electronic City traffic police have registered Cr.No.192/2014 against the driver of water tanker tractor bearing No.KA-51-T-2532 for the offences punishable U/s 279 and 338 of IPC. The respondents are the owner and insurer of the said tractor and they are jointly and severally liable to pay compensation. Hence, the petitioner has filed this petition for a compensation of Rs.10,00,000/- with Court cost and interest.
SCCH-14 3 MVC NO.5092/20143. In pursuance of the notices, the respondents have appeared before the Court through their respective counsel. The respondent No.2 has filed his written statement denying the averments of the petition as false and contended that the petition is not maintainable. He has not admitted the issuance of policy in favour of the respondent No.1 in respect of water tanker tractor bearing No.KA-51-T-2532 and contended that the respondent No.1 and concerned police have not complied their mandatory duties, that the accident has occurred due to sole negligence of the petitioner who tried to cross the road without observing on coming vehicles and there was no zebra crossing, that no actionable negligence is attributable against the driver of water tanker tractor bearing No.KA-51-T-2532 who was driving his vehicle by following rules and regulation, that the compensation claimed by the petitioner is highly exaggerated and unrelated to the injuries suffered by the petitioner, that the petitioner has sustained simple injures and she is trying to convert an unfortunate incident into a windfall. Hence, he has sought for dismissal of the petition with cost. The respondent No.1 has not filed his written statement.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that she sustained grievious injuries in the nature of permanent disablement on 11.11.2014 at about 08.45 a.m., Near Konappana Agrahara Road, Konappana Agrahara, Bangalore, in an accident arising due to rash and negligent driving of driver of Water Tanker Tractor bearing No.KA-51-T-
2532?
SCCH-14 4 MVC NO.5092/20142. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined herself as PW.1 and got marked documents as Ex.P1 to P11. She has examined two doctors as PW-2 and 3 and got marked documents as Ex.P12 to 15 through them. The respondents have not adduced any evidence on their behalf.
6. Heard the arguments. The counsel for the respondent No.2 has relied upon the following rulings;
1. ILR 2004 KAR 1104 (Koosappa Poojari Vs Sadabba & Ors)
2. ILR 1998 KAR 1934 (Narasimhaiah Vs The General manager & Ors) I have gone through the said rulings and perused the records.
7. My findings on the above issues are as under:-
Issue No.1: In Affirmative. Issue No.2 : In Affirmative, For Rs.4,34,000/-
from the respondent No.2.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: In order to prove her case, the petitioner has relied upon oral evidence of PW-1 to 3 and documentary evidence at Ex.P1 to 15. The respondent No.1 has not filed his written statement, whereas the respondent No.2 has not produced any evidence to prove his defence.
9. PW-1 Usha is the petitioner and she has reiterated the entire averments of the petition and stated that she has sustained grievous injuries in road traffic accident which result in permanent disability, that the accident SCCH-14 5 MVC NO.5092/2014 has occurred due to rash and negligent driving of the driver of water tanker tractor bearing No.KA-51-T-2532 and that the respondents being the owner and insurer of the said vehicle, are jointly and severally liable to pay compensation to her. She was cross-examined at length by taking up a defence that the water tanker tractor bearing No.KA-51-T-2532 came from her front side, that she was walking on the middle of the road negligently at the time of accident, that there was no negligence on the part of the driver of water tanker tractor bearing No.KA-51-T-2532, that she herself was negligent and responsible for the accident. PW-1 has denied all the suggestions of the counsel for the respondent No.2 as false. Only on the basis of said denials, it can not be held that the accident has occurred due to negligence of the petitioner and there was no negligence on the part of the driver of water tanker tractor bearing No.KA-51-T-2532. The respondent No.2 has not produced any evidence to substantiate his defence. He has not examined the driver of water tanker tractor bearing No.KA-51-T-2532 who was the best witness to speak about the accident. Hence, I am of the opinion that the evidence of PW-1 is believable as to negligence of the driver of water tanker tractor bearing No.KA-51-T-2532. Nothing is elicited from her regarding injuries disbelieve to her evidence. It was suggested to her in cross- examination that she does not need crutches for walking and in order to get sympathy of the court, she came with crutches. The said suggestion is not sufficient to believe that the petitioner has sustained simple injuries and she can walk without crutches.
10. PW-1 Dr.Ramachandra is the orthopedic surgeon working at Bangalore Medical College and Research Institute, Bangalore and he has stated about the injuries caused to the petitioner in the accident, about the difficulties of the petitioner and about the disability caused to her due to the accidental injuries. He has assessed the disability of the petitioner @ 27% to SCCH-14 6 MVC NO.5092/2014 left lower limb and @ 13.5% to whole body. Recent X-ray examination revealed reduction of dislocation of tarsal joints with implant in situ seen in left foot, fracture proximal phalanx of left great toe shows union. He has further deposed that the petitioner has to undergo one more surgery for removal of implant. He has produced OPD book and X-ray which are marked as Ex.P12 and 13. Evidence of PW-2 is corroborated by the contents of Ex.P12 and 13 regarding injuries caused to the petitioner and extent of disability suffered by her due to accidental injuries. In cross-examination, PW-2 has admitted that the fracture is united, that he is not a treated doctor, that the petitioner can do day to day activities with difficulty. However, he has denied the suggestion that the injury caused to the petitioner was not related to orthopedic, that after removal of implants, the disability will be reduced, that the disability assessed by him is on the higher side and is not permanent, that he is not competent to assess the disability of the petitioner. On perusal of his entire evidence coupled with OPD book at Ex.P12 and 13, it reveals that the petitioner has sustained grievous injuries to her left foot and she is suffering from permanent physical disability to the extent of 27% to left lower limb. The fracture is united with implant in situ. The petitioner has to undergo another surgery for removal of implant. But, she can do day to day activities with difficulty. Hence, I am of the opinion that if whole body disability of the petitioner is considered as 1/3rd of the disability of left lower limb, it will meet the ends of justice. 1/3rd of 27% comes to 9%. Evidence of PW-1 is believable to that extent.
11. PW-3 Dr.majunath is the plastic surgeon working at Bhagavan Mahaveer Jain Hospital. He has deposed about the injuries caused to the petitioner and about the treatment given to her in their hospital, about difficulties and disability of the petitioner due to the accidental injuries. He SCCH-14 7 MVC NO.5092/2014 has calculated physical impairment of the petitioner for left foot injury @ 18%.
12. In cross-examination, he has stated that one Dr.Prakash has treated the petitioner in Bhagavan Mahaveer Jain Hospital, that the said Dr.Prakash is available in the hospital, that there is reference about the opinion given by Dr.Prakash in respect of the petitioner in case sheets at Ex.P15. He has admitted that the condition of the petitioner was gradually improved during follow up treatment. He has stated about treating the petitioner regarding wound Debridement, reverse sural alterly flap cover, that since, flap cover is looking rough, it requires cosmetic surgery, no other treatment is required from his side, that cosmetic surgery is for external appearance and it has nothing to do with functional disability, that the disability assessed by him is of particular limb and whole body disability will be 1/3rd of said disability. He has denied the suggestion that assessment of the disability made by him is premature and it is not permanent in nature. X-rays and case sheet produced by PW-3 corroborate his evidence regarding the injuries caused to the petitioner and the nature of treatment given to her in Bhagavan Mahaveer Jain Hospital. But combined perusal of evidence of PW-1 to 3, it can be said that the petitioner has sustained crush injury of left foot, nerve injury, extensive skin loss, compound fracture dislocation of mid foot joints and great toe injury, that the petitioner underwent surgery with implant, wound debridement and skin grafting. She is suffering from various difficulties and disability. The disability assessed by PW-2 is physical and functional, whereas the disability assessed by PW-3 is physical impairment and external appearance of the left foot. Therefore, I am of the opinion that the petitioner is suffering from permanent physical and functional disability to the extent of 9% to the whole body.
SCCH-14 8 MVC NO.5092/201413. The petitioner has produced copies of police records to corroborate her evidence as to manner of accident and negligence of the driver of Water Tanker Tractor and nature of injuries caused to her and same are marked as Ex.P1 to 4. She has got marked medical records as Ex.P5 to 15 regarding injuries, treatment, amount spent by her.
14. On perusal of FIR, it reveals that the petitioner has lodged complaint on 12.11.2014 at 04.15 pm., There was a delay of a day in lodging complaint. Wound certificate at Ex.P5 reveals that the petitioner was taken to Bhagavan Mahaveer Jain Hospital on 11.11.2014 at 6.00 pm., PW-1 has stated that she was taken to Sparsh Hospital and then, shifted to Bhagavan Mahaveer Jain Hospital. Thus, there was no delay in admitting the petitioner to hospital. Hence, delay in lodging complaint is acceptable. The said Water Tanker Tractor was not damaged in the accident, but its brake system was in order. The accident was not due to mechanical defects of the vehicle. Panchanama discloses that the place of accident was at southern edge of the road. There was sufficient space for the tractor to move ahead without causing accident. The police investigation resulted in filing of charge sheet against the driver of water tanker tractor bearing No.KA-51-T-2532. The said charge sheet corroborates the evidence of PW-1 as to manner of accident and negligence of the driver of water tanker tractor. There is nothing on record to disbelieve the contents of charge sheet. The driver could have applied brakes and avoided the accident. The respondents have not adduced any evidence to prove the negligence of the petitioner. The driver of water tanker tractor is the best witness to depose about the said fact. The respondent No.2 has not made any efforts to examine him. He has relied upon rulings to prove the negligence of the petitioner. The fact of negligence requires some evidence. We can not hold the petitioner as negligent without there being any evidence. The rulings are not sufficient to hold that the petitioner was also negligent SCCH-14 9 MVC NO.5092/2014 and contributed to the accident. Hence, I hold that the petitioner has proved the negligence of the driver of water tanker tractor bearing No.KA-51-T-2532 through her own evidence and by producing Ex.P1 to 4. There is no evidence to rebut the oral and documentary evidence of the petitioner.
15. Evidence of PW-1 to 3 is supported by wound certificate, discharge summary, photographs, X-rays, OPD book and case sheets which collectively reveal that the petitioner has sustained grievous injuries which resulted in permanent disability to the extent of 9% to whole body. Photographs at Ex.P10 indicate the impact of injuries and effect of same on the petitioner. Thus, evidence of PW-1 to 3 and contents of Ex.P1 to 15 establish the averments of the petition as to manner of accident, causing of injuries to the petitioner and occurrence of accident due to negligence of the driver of the water tanker tractor bearing No.KA-51-T-2532. The respondent No.1 has no defence and the respondent No.2 has not produced any evidence to prove his defence. Hence, I answer the issue in affirmative.
16. Issue No.2: Evidence of PW-1 to 3 and contents of Ex.P5 and 6 reveal that the petitioner has sustained following injuries;
1. Crush injury of left foot, nerve injury with extensive skin loss.
2. Compound fracture dislocation of mid foot joints.
3. Great toe injury The petitioner was an inpatient in Bhagavan Mahaveer Jain Hospital on two occasions for a total period of 12 days i.e., from 11.11.2014 to 20.11.2014 and from 11.12.2014 to 12.12.2014. He underwent following course in the hospital:
1. Left foot; Emergency exploration, extensive major wound debridement, dislocation reduction under SA on 11.11.2014.SCCH-14 10 MVC NO.5092/2014
Intra operative findings;
Left foot- medial border of foot+ ankle- deep abrasion extending up to bone 7x5 cm.
Mid foot joints-Tarsotarsal joints exposed, dislocated and crushed with fracture dislocation and contamination.
Extensive skin loss.
Internal degloving (+) upto tendo-achiles.
Left 1st joint expected - great toe.
1st toe nail avulsed partially.
2. Major wound Debridement+inter fragmentary screw fixation of tarsal bone+K-wiring Great toe under SA on 13.11.2014.
3.Left foot wound Debridement + Reverse sural artery flap cover + SSG under SA on 14.11.2014.
17. PW-1 Usha has deposed about her difficulties. PW-2 Dr.Ramachandra and PW-3 Dr.Manjunath Madleri have supported the version of PW-1. OPD book at Ex.P12 corroborates the evidence of PW-2 as to extent of disability. Photographs reveal the severity of injury. The petitioner has suffered permanent physical disability of 27% to left lower limb and 9% to whole body. Her disability is physical as well as functional. She was an inpatient for 12 days. She was on follow up treatment and bed rest after discharge from hospital. The nature of injury caused to the petitioner requires about 4 months to heal up. During the said period, the petitioner might have incurred expenses towards nourishment, conveyance and attendant charges apart from medical expenses. The petitioner has got marked medical bills amounting to Rs.2,13,108/- and prescriptions as Ex.P7 and 8. Advance receipt at Ex.P9 reveal the payments made by the petitioner. Though all prescriptions are not produced, there is no evidence to disbelieve the medical bills. There is no documentary evidence as to age, occupation and income of the petitioner. Hence, evidence of PW-1 that she was a loader and was earning Rs.10,000/- pm., is unbelievable. In the absence of positive evidence, I am of the opinion that the petitioner is/was a house wife and she has no independent income. Hence, she is not entitled for compensation SCCH-14 11 MVC NO.5092/2014 towards loss of income either past or future. However, the petitioner has to live with permanent disability through out her life. Her difficulties persist in future resulting in loss of amenities. She has to undergo another surgery for removal of implants. There is no estimation as to cost of future surgery. Hence, I award a compensation of Rs.60,000/- towards pain and sufferings, Rs.2,14,000/- towards medical expenses, Rs.20,000/- towards nourishment, conveyance and attendant charges, Rs.25,000/- towards loss of amenities and Rs.90,000/- towards disability. The respondent No.2 can not insist the petitioner to undergo surgery in a particular hospital. Primary surgery was done at Bhagavan Mahaveer Jain Hospital. It is quite natural for the petitioner to go for future surgery in the same hospital. Hence, I award a compensation of Rs.25,000/- towards future medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under;
1. Pain and sufferings Rs. 60,000/-
2 Medical expenses Rs.2,14,000/-
3 Nourishment charges, conveyance Rs. 20,000/-
and attendant charges 4 Loss of disability Rs. 90,000/-
5 Loss of amenities Rs. 25,000/-
6 Future medial expenses Rs. 25,000/-
Total Rs.4,34,000/-
The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment. The respondents are the owner and insurer of water tanker tractor bearing No.KA-51-T-2532. The accident has occurred due to rash and negligent driving of the driver of the said vehicle. Hence, the respondents are jointly and severally liable to pay compensation to the petitioner as stated above. The respondent No.2 has not proved his defence as to violation of terms and conditions by the respondent No.1. Hence, the respondent No.2 is liable to deposit the amount before the court. Consequently, I answer the issue as above.
SCCH-14 12 MVC NO.5092/201418. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,34,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,34,000/- with interest. In view of policy, the respondent No.2 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.75,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled bank and cooperative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 29th day of February 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 13 MVC NO.5092/2014
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Usha PW.2 Dr.Ramachandra PW-3 Dr.Manjunath Madleri Respondent' s Nil Ex.P1 - Copy of FIR with complaint E.xP2 - Copy of Charge Sheet Ex.P3 - Copy of Spot Panchanama Ex.P4 - Copy of IMV report Ex.P5 - Copy of Wound Certificate Ex.P6 - Discharge Summary (2 in nos) Ex.P7 - Medical bills (52 in nos amounting to Rs.2,13,108/-) Ex.P8 - Prescriptions (34 in nos) Ex.P9 - Advance Receipts (6 in nos) Ex.P10- Photographs (5 in nos) and CD Ex.P11 - X-rays (3 in nos) Ex.P12- OPD book Ex.P13- X-ray Ex.P14- X-rays (2 in nos) Ex.P15- Case sheets (2 in nos) Respondent's Nil XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 14 MVC NO.5092/2014
Dt.29.02.2016 P-KBR R1-SMR R2 -ANM For Judgment Order pronounced in open court vide separate judgment.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,34,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,34,000/- with interest. In view of policy, the respondent No.2 is directed to deposit the amount before court within one month from the date of order.SCCH-14 15 MVC NO.5092/2014
After deposit, Rs.75,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled bank and cooperative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 16 MVC NO.5092/2014
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.5092/2014 Petitioner/s : Usha.B. W/o Balakrishnan.P @ Balakrishna, Aged about 46 years, R/at No.377, Mission compound, Kavala Bairasandra, Bangalore-560045.
V/s (By pleader Sri KBR) Respondent/s 1. Shridhar.T. S/o thimma Reddy, No.833, Thimma Reddy building, Krishna Reddy Layout, Konappana Agrahara, Bangalore-560100.
2.The Manager, ICICI Lombard Gen.Ins.Co.Ltd.
2nd Floor, SVR Complex, Madiwala, Hosur Main Road, Bangalore-560068.
(R1- By pleader Sri SMR R2-By pleader Sri ANH) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the injuries
sustained by the petitioner/Death of in a motor Accident by vehicle
No.
SCCH-14 17 MVC NO.5092/2014
WHEREAS, this claim petition coming up before Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,34,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,34,000/- with interest. In view of policy, the respondent No.2 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.75,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled bank and cooperative bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 18 MVC NO.5092/2014
By the
__________________________________
Petitioner/s Respondent
No.1 No.2
_________________________________
Court fee paid on petition 10-00
Court fee paid on Powers 01-00
Court fee paid on I.A.
Process
Pleaders Fee _____________________________
Total Rs. -----------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 19 MVC NO.5092/2014
SCCH-14 20 MVC NO.5092/2014
PETITIONER PRESENT AND DULY SWORN ON: 01.12.2014 HE HAS FILED AFFIDAVIT IN LIEU OF EVIDENCE OF PW.1.
ACCEPTED.
EXAMINATION IN CHIEF: BY SRI. A.D.P. ADVOCATE FOR PETITIONER:
I have produced documents under list and they may be marked. The said documents are marked as under:
Ex.P1 - Copy of FIR with complaint E.xP2 - Copy of Panchanama Ex.P3 - Copy of IMV report Ex.P4 - Copy of Wound Certificate Ex.P5 - Copy of Charge Sheet Ex.P6 - Discharge Summary Ex.P7 - Medical Bills (30 in nos amounting to Rs.10,061) (Counsel for petitioner prays time for produce few more documents. Granted).
(Computerised to my dictation in the Open Court) R.O.I & A.C. (BASAVARAJ CHENGTI) XVI ADDL. JUDGE Court of Small Causes, Bangalore.