Bangalore District Court
N.Srinivas vs Icici Lombard General Insurance Co on 4 February, 2021
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES
BENGALURU
(SCCH-18)
Dated: This the 4th day of February 2021
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,(Spl)
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.3767/2014
Petitioner N.Srinivas,
Son of Narayanappa,
C/O Manjunath,
No.25, Bhovi Colony,
Thyagarajanagar,
Bengaluru-560 028.
Permanent address;
No.96, Nagareddypalli Village.
Srinivasapura Taluk,
Kolar District-563 161.
(By Pleader Shri Girimallaiah)
V/s.
Respondents 1.ICICI Lombard General Insurance Co.
Ltd., S.V.R. Complex, No.89, II floor,
Hosur Road, Madiwala,
Bengaluru-560 068.
(Insurer of Bus KA-08-3780)
2 SCCH-18 MVC 3767/2014
(By Pleader Shri Gururaj Sulur)
2. Lakshman Singh H.B.,
Sonof Balaram Singh,
No.2, Balaji Nilaya, 2nd Main Road,
Gangamma Temple Street, K.R. Puram,
Bengaluru-560 036.
(R.C. Owner of Bus KA-08-3780)
(By Pleader Shri Babu Rajendra)
J U D G M E N T
The petitioner has filed this claim petition U/S.166 of M.V. Act against the respondents claiming compensation amount of Rs.30,00,000/- on account of injuries sustained by the petitioner in a road traffic accident.
2.The brief facts of the petition are as under:
On 9.6.2014 at about 6.00 p.m. the petitioner was going at Kalasipalya bus stand carefully and cautiously by observing all the traffic rules and regulations at that time, the driver of the bus bearing No.KA-08-3780 drove the same in a rash and negligent manner so as to endanger human life and safety of others and 3 SCCH-18 MVC 3767/2014 dashed against the petitioner, resulting which, bus wheel ran over the right foot of the petitioner. Immediately the petitioner was shifted to Victoria Hospital, wherein first aid was given and then shifted to Sanjay Gandhi Hospital, wherein the petitioner was treated as an inpatient and he was undergone operation, external fixator with skin grafting was done.
3. Further the contention of the petitioner is that, prior to the accident, he was hale and healthy, aged about 38 years, cook at Shri Udaya Canteen, Madiwala, Bengaluru and earning a sum of Rs.10,000/- per month. The accident occurred due to the rash and negligent driving of the driver of the bus bearing registration No.KA-08-3780. Therefore, the respondents are jointly and severally liable to pay the compensation. Contending the above facts, he prays to grant for compensation with interest and cost.
4. In response to the petition notice, the respondents have appeared before the court through their respective counsel. 4 SCCH-18 MVC 3767/2014 Inspite of sufficient opportunities given to the respondent No.2 has not filed his written statement, so the written statement of the respondent No.2 is taken as not filed. The respondent No.1 has filed the written statement.
5. The brief contents of written statement of respondent No.1 are as under:
The respondent No.2 has contended in its written statement that the petition filed by the petitioner is not maintainable either in law or on facts. Further admitted about the issuance of the policy in respect of bus bearing No.KA-08-3780 and its liability is subject to terms and conditions of the policy. Further contended that neither the owner of the vehicle nor the jurisdictional police have complied the mandatory provisions of U/s 134© and S. 158 (6) of the MV Act in furnishing the better particulars. Further denied the age, avocation and income of the petitioner as alleged in the claim petition. Contending the above facts, he prays to dismiss the claim petition as against this respondent with cost. 5 SCCH-18 MVC 3767/2014
6. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioner proves that he had sustained grievous injuries in an accident that was occurred due to rash and negligent driving of the driver of the bus bearing No.KA-08-3780 on 9.6.2014 at about 6.00 p.m. near Kalasipalya Bus stand, Kalasipalya, Bengaluru ?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?
3. What order or award?
7. The petitioner has challenged the judgment and decree passed by this Tribunal on 16.4.2015 before the Hon'ble High Court of Karnataka in MFA.No.5855/2015 and same is set aside in its order dated 21.1.2020 and remanded the matter to this court with a direction that 'finding of the Tribunal regarding fastening of 6 SCCH-18 MVC 3767/2014 liability on the Insurance Company is upheld. As far as assessment of compensation is concerned, the concerned Tribunal is directed to reassess the compensation after considering the additional documents produced by the claimant and after giving opportunity to both the parties'. As per the direction of the Hon'ble High Court of Karnataka the petitioner has appeared before this court and furnished the additional documents and led the additional evidence of PW1 & PW2 and got marked the documents.
8. In order to prove the case, the petitioner himself has examined as PW1 and got marked the documents at Ex.P1 to Ex.P19 and examined Dr.Prakashappa T.H. as PW2 and got marked the documents at Ex.20 & Ex.P21.
9. To disprove the case of the petitioner and to prove the defence, the respondent No.1 has not examined any witness on its behalf.
7 SCCH-18 MVC 3767/2014
10. The counsel for the petitioner has filed the written arguments and heard the arguments of the learned counsel for the respondent No.1.
11. My findings to the aforesaid issues are as follows:
Issue No.1: In the Affirmative Issue No.2: In the Partly Affirmative Issue No.3: As per final order for the following:
R E A S O N S
12. ISSUE NO.1:- During the course of arguments, the learned counsel for the petitioner filed the written arguments by reiterating the contents of petition and also evidence put forth by PW1 & PW2. Further he argued that as per police investigation papers the alleged accident has occurred due to the rash and negligent driving of the driver of the bus bearing No.KA-08-3780. Further he argued that to prove the disablement suffered by the petitioner he has examined Dr.Prakashappa T.H. as PW2 and as per 8 SCCH-18 MVC 3767/2014 evidence of doctor the petitioner has sustained crush injury of right foot and right ankle and leg below knee amputated stump of right leg at the level of upper third of the leg and he was assessed the disablement to the extent of 70% and the whole body is 35%. Further he argued that in view of the judgment of the Hon'ble Apex Court and also judgment of the Hon'ble High Court of Karnataka the petitioner is entitled future prospects to amputation of right leg at the level upper 1/3rd. Further contended that the petitioner has proved his case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition. The counsel for the petitioner has filed the following judgements;
1) 2014 ACJ 627 in case of Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co.Ltd.,
2) MFA No.8602/2016 in case of Smt.Alameli Bai Vs. Managing Director, KSRTC 9 SCCH-18 MVC 3767/2014
3) 2019 ACJ 2829 in case of S.Adaikkappan Vs. Managing Director Tamil Nadu State,
4) 2017 ACJ 2834 in case of New India Assurance Co.Ltd., V/s Gajendra Yadav and Others
13. Per contra, the learned counsel for the respondent No.1 argued by reiterating the contents of objection statement filed by the respondent No.1. Further he argued that the accident has not occurred due to the rash and negligent driving of the driver of the bus bearing No.KA-08-3780. On the other hand, the alleged accident took place due to the negligence of the petitioner himself. Further he has specifically argued that PW2 Dr.Prakashappa in the previous evidence he has stated that disability has been assessed to the extent of 31% to the permanent physical disability of whole body from the right lower limb and now he has changed his version by stating that the petitioner has sustained disability to the extent of 70% to the below knee amputated stump of right leg at 10 SCCH-18 MVC 3767/2014 the level of 1/3rd, disability of the whole body is to be assessed by dividing into three to the disability of particular limb. In the present case, disability assessed by the doctor is not believable, he has assessed disability exhorbitantly and there is no explanation in respect to assessment of disability in the previous evidence and in the present evidence. Further he argued that petitioner has failed to prove his case as contended in the petition by producing proper documents. Accordingly he prays to dismiss the petition against the respondent No.1.
14. On rival contention urged by both the counsel, I, intend to discuss the merits of the case.
15. On perusal of the evidence available on record, it reveals that, to prove the case, the petitioner has examined himself as P.W.1 and doctor is examined as PW2. PW1 in his evidence reiterated the contents of the petition. Further in support of his case, he has produced the documents and the same 11 SCCH-18 MVC 3767/2014 are marked as Ex.P1 to Ex.P9, Ex.P13 to Ex.P15, Ex.P16, Ex.P16(a), Ex.P17 to Ex.P19 and doctor has furnished the documents and the same are marked as Ex.P10 & Ex.P11 and Ex.20 & Ex.P21. Thereafter the counsel for the respondent has cross-examined the PW1 at length, but nothing has been elicited in respect of the accident occurred due to the negligence of the petitioner himself. Further to prove the defence the respondent No.1 has not examined any eye witness to rebute the evidence of PW1.
16. Further petitioner in order to prove the rash and negligent driving of the driver of the bus bearing No.KA-08-3780 the petitioner has produced the prosecution papers same are marked the as Ex.P1 to Ex.P6 i.e., FIR with Complaint, spot mahazar, rough sketch, IMV report, Wound certificate and charge sheet. On perusal of Ex.P1 & Ex.P6, FIR with complaint it reveals that City Market Traffic police have registered case against the driver of the bus bearing No.KA-08-3780 in CR.38/2014 and after 12 SCCH-18 MVC 3767/2014 completion of investigation, the I.O. filed the charge sheet as against the driver of the bus for the offences punishable u/s 279 and 337 of IPC.
17. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 & PW2 coupled with documents and for the above, I am of the opinion that the petitioner has proved that the accident occurred due to the rash and negligent driving of the driver of the bus as contended in the petition by producing oral and documentary evidence.
18. Further on perusal of Ex.P5-Wound certificate, it shows that, the petitioner has sustained grievous injuries.
19. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in 13 SCCH-18 MVC 3767/2014 the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
20. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent driving of the driver of the bus bearing No.KA-08-3780. Hence, I answer this issue in the affirmative.
21. ISSUE NO.2:- The specific contention of the petitioner is that, he was hale and healthy at the time of accident, aged about 38 years, working as a cook and earning Rs.10,000/- P.M. Further the contention of the petitioner is that, he has sustained grievous injuries in the accident and due to the accidental injuries, he has suffered permanent disablement and he is not in a position to work as he was doing earlier to the accident and as such, he has lost the earning capacity and lost the income. 14 SCCH-18 MVC 3767/2014
22. Further to prove the disablement suffered by the petitioner, he has examined Dr.Prakashappa T.H., who has stated in his evidence that, the petitioner has sustained following injuries;
1) Crush injury of right foot right ankle and leg
23. The petitioner was admitted to the hospital on 28.1.2016 with chronic discharge of sinus from the right leg and foot with complete loss of functions of ® ankle and ® foot and then decided to amputate the leg. On 6.2.2016 below knee amputation of the right lower limb at the level of upper 1/3rd was done and he was discharged on 11.2.2016. Due to the accidental injuries he has suffered permanent disability of below knee amputated stump of (R ) leg at the level of upper third of the leg amounts to 70% and to the whole body is 35%. In support of his evidence PW2 has produced the documents and the same are marked as Ex.P10, Ex.P11, 20 & Ex.P21.
15 SCCH-18 MVC 3767/2014
24. On the other hand, the respondent No.1 has denied the above contention of the petitioner in toto.
25. The respondent No.1 has cross-examined the PW2, at length, but nothing worth material has been elicited from his mouth. On perusal of entire evidence of PW2, it is clear that PW2 is a treated doctor and at present amputation was done.
26. Further the petitioner has furnished the judgement of the Hon'ble Apex Court reported in 2014 ACJ 627 in case of Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co. Ltd., wherein Hon'ble Apex Court has assessed the permanent functional disability is at 85% and added 50% of income for the future prospects.
27. Further Hon'ble High Court of Karnataka in its Division Bench in MFA 8602/2016 in case of Smt.Alameli Bai @ Alamelamma Vs. The Managing Director, KSRTC, K.H.Road, Shanthinagar, Bengaluru relied the said judgment. In the said 16 SCCH-18 MVC 3767/2014 case, Hon'ble High Court has considered whole body disability is at 80% and given future prospects. Considering the age of the petitioner ordered for entitlement of 50% future prospects.
28. In the present case, the petitioner has suffered functional disability, he is entitled for addition of future prospects. In view of the judgment of the Hon'ble Apex Court and the Hon'ble High Court of Karnataka, since the petitioner is aged between 40-50 years, he is entitled for 25% of addition to the income for calculation of future prospects.
29. In the instant case the petitioner is working as a cook, so, the said injuries have adversely affected his functional ability to continue to work as a cook. The doctor has assessed the whole body disability is 35% and the permanent functional disability is 70%. While dealing with the concept of permanent disability, it is important to keep in mind the functional disability suffered by the injured, rather than the physical disability suffered by the person. 17 SCCH-18 MVC 3767/2014 In case, the physical disability of the whole body adversely affects the occupation or the profession of the person, then the functional disability would be guiding factor while deciding the loss of income suffered by the person inview of the judgment of the Hon'ble High Court of Karnataka in case of Syed Israr Vs. M/s United India Insurance Co. Ltd., and Another in MFA 5087/2015. Therefore, 70% shall be considered as functional disability of the petitioner due to the accidental injuries.
30. To prove the age, the petitioner has produced notarised copy of the voter ID card, ration card and Aadhar card, same are marked at Ex.P13 to Ex.P15. While perusing the said records, it reveals each documents noted the different date of birth. But while perusing the police documents, in which he has stated the age of the petitioner is 45 years, further in the complaint itself he has shows his age as 45 years. So, the same is considered as the age of the petitioner, then it is clear that as on the date of accident 18 SCCH-18 MVC 3767/2014 he was aged about 45 years, then proper multiplier applicable to the case on hand is '14'.
31. To prove the occupation and income, the petitioner has not produced any relevant documents. In the absence of the positive documents with respect to avocation and income of the petitioner, a notional income of Rs.6,000/- is taken into consideration as the matter is of the year 2014. In view of the judgement of the Hon'ble Apex Court reported in 2014 ACJ 627 in case of Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co. Ltd., since the petitioner is aged between 40-50 years, he is entitled for 25% of addition to the income for calculation of future prospects. Then it comes to Rs.7,500/- per month (i.e., Rs.6,000 + Rs.1,500=Rs.7,500)
32. The income of the petitioner is considered as Rs.7,500/- P.M. and disability is considered as 70% and multiplier 14 is applied, then the loss of income due to disability comes to Rs.8,82,000/- 19 SCCH-18 MVC 3767/2014 (7,500X12X14X70/100). Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.8,82,000/- under the head of loss of future earnings.
33. Further on perusal of Ex.P.5 i.e. copy of wound certificate, it shows that, the petitioner has sustained the following injuries:-
1) Avulsion on right foot
2) Crush injury on right foot
3) Deformity of right foot X-ray shows fracture of medial malleolus of calcaneous with multiple fracture of tarsal of metatarsal bone.
34. The above said injuries is grievous in nature. Considering the above facts and looking to the nature of injury, considering the age and occupation of the petitioner, I deem it just and reasonable 20 SCCH-18 MVC 3767/2014 to grant for compensation of Rs.2,00,000/- under the head of Pain and sufferings.
35. Further as stated above that, the petitioner has suffered disability to the extent of 70% to the functional disability and as such the said disability may affect on his occupation and the petitioner has to suffer throughout his life along with the said disability. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.60,000/- under the head of loss of amenities.
36. Further on perusal of Ex.P77, Ex.P7 & Ex.P17, it shows that, the petitioner has taken treatment as an inpatient from for a period of 93 days at Sanjay Gandhi Institute of Trauma and Orthopaedics. Considering the above facts and looking to the period of hospitalization, I deem it just and reasonable to grant 21 SCCH-18 MVC 3767/2014 for compensation of Rs.1,00,000/-under the head of attendant, nourishment and conveyance charges.
37. Further to prove the medical expenses incurred by the petitioner, he has relied upon the medical bills and the same are marked as Ex.P9 and also at Ex.P18 to the extent of Rs.31,351/-+ Rs.10,503/-. On the other hand, the respondent No.1 has disputed the genuineness of the said bills and to that effect, the counsel for the respondent No.1 has cross examined the PW1 at length, but nothing has been elicited from him to disbelieve those bills. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.41,854/- under the head of medical expenses.
38. Further due to the accidental injuries, the petitioner might not have attended his regular work at least for a period of six months as he was hospitalized for a period of 93 days and as such, if six months income is awarded under the head of loss 22 SCCH-18 MVC 3767/2014 of income during laid up period and rest period certainly it would meet the ends of justice. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.36,000/- under the head of loss of income during laid up period and rest period.
39. PW2-Dr.Prakashappa T.H. has stated in his evidence that petitioner needs below knee prosthesis. The petitioner has produced estimation for artificial limb issued by Gaurav Orthopaedic and Surgical Hospital marked at Ex.P19, which shows that the approximate cost for the prosthesis is Rs.40,000/- to Rs.50,000/- . Relying on the same, it is just and proper to award compensation of Rs.40,000/- for future medication.
40. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioner is entitled for total compensation under the following heads:
23 SCCH-18 MVC 3767/2014
Compensation heads Compensation
amount
1. Towards Pain and suffering Rs.2,00,000-00
2. Towards Loss of amenities Rs. 60,000-00
3. Towards Nourishment, conveyance Rs.1,00,000-00 & attendant charges
4. Towards Medical expenses Rs. 41,854-00
5. Towards loss of future income Rs.8,82,000-00
6. Towards Loss of income during laid Rs. 36,000-00 up period & rest period
7. Future medication Rs. 40,000-00 Total Rs.13,59,854-00
41. LIABILITY: On perusal of the contents of petition and contents of written statement, it reveals that, the accident occurred due to the rash and negligent driving of the driver of the bus bearing No.KA-08-3780.
42. The respondent No.1 has admitted about the issuance of policy in respect of bus bearing No.KA-08-3780 and its validity. Therefore, the respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 is liable to pay the compensation with interest at 24 SCCH-18 MVC 3767/2014 8% p.a. from the date of petition till its realization. Accordingly, I answer the issue No.2 in partly affirmative.
43. ISSUE NO.3: In view of above discussion on issue Nos.1 & 2, I proceed to pass the following;
O R D E R The claim petition filed by the petitioner U/s 166 of MV act is partly allowed with cost.
The petitioner is entitled for compensation of Rs.13,59,854/- with interest @ 8% p.a. from the date of petition till the date of realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realization within two months from the date of this order.
The expenses to be incurred for future medication shall not carry interest.
25 SCCH-18 MVC 3767/2014
After deposit of compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalized/scheduled bank for a period of three years and remaining 60% of the amount shall be released to the petitioner through account payee cheque on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1000/-.
Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in open court on this the 4th day of February 2021).
(MAHANTESH S.DARGAD) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri Srinivas
PW2 Dr.Prakashappa
26 SCCH-18 MVC 3767/2014
List of documents exhibited on petitioner's side:
Ex.P1 True copy of FIR with complaint Ex.P2 True copy of spot mahazar Ex.P3 True copy of sketch Ex.P4 True copy of IMV report Ex.P5 True copy of charge sheet Ex.P6 True copy of Wound certificate Ex.P7 Discharge summary Ex.P8 Discharge summary Ex.P9 Medical bills Ex.P10 Case sheet Ex.P11 Case sheet Ex.P12 X-ray Ex.P13 Notarised copy of Voter ID card Ex.P14 Notarised copy of ration card Ex.P15 Notarised copy of Aadhar card Ex.P16 and Photos and Negative Ex.P16(a) Ex.P17 Discharge summary Ex.P18 Medical bills Ex.P19 Cost of estimation for artificial limb Ex.P20 Case sheet Ex.P21 X-rays
List of witnesses examined on respondents' side:
None 27 SCCH-18 MVC 3767/2014 List of documents exhibited on respondents' side:
Nil III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.