Bangalore District Court
Sri.Hanumanth Rao.G.R vs Shanmugam.M on 4 November, 2015
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.3460/2014
Dated this the 4th day of November 2015
Petitioner/s : Sri.Hanumanth Rao.G.R.
S/o Ramadeva Rao @ Ramdev G.M.,
Aged about 32 years,
R/at No.37,
Gavipuram Village,
Basavanagudi, Bangalore-19.
(By pleader Sri CSM)
V/s
Respondent/s 1. Shanmugam.M,
S/o Muthuswamy,
No.326, Old No.12,
Wheller Road Extn,
Cox Town,
Bangalore-84.
2.Royal Sundaram Alliance Insurance
Company Ltd.
Sundaram Towers,
No.46, Whites Road,
Royapettah,
Chennai-600014.
(R1-Exparte,
(R2-By pleader Sri RSS)
SCCH-14 2 MVC 3460/2014
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.8,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 30.07.2014 at about 8.00 pm, the petitioner was riding motorcycle bearing No.KA-43-K-4848 on 80 feet peripheral road, Koramangala, Bangalore slowly and cautiously by observing all traffic rules and regulations. When he reached Kaveri petrol bunk, in order to fill the petrol, Petrol Tanker bearing No.KA-03-C-7869 driven by its driver in a rash and negligent manner endangering to human life suddenly came in reverse direction and dashed against the petitioner's motorcycle. Due to impact, the petitioner fell down and sustained grievous injuries and the motorcycle was also damaged. Immediately, the petitioner was shifted to Sharadha Nursing Home, Bangalore, wherein firstaid treatment was given and thereafter, he was shifted to Deepak Nursing Home, Bangalore, wherein he took treatment as an inpatient for one day. The petitioner sustained fracture of right patella and doctors advised for surgery, follow up treatment and medication. He spent Rs.50,000/- towards medical, conveyance, nourishment and other incidental charges, etc., Prior to the accident, the petitioner was hale and healthy, was aged about 32 years, was working as Second Division Clerk at Government of Karnataka, Public Works ports and Inland Water Transport Department, Office of Chief Engineer National Highway, K.R.Circle, Bangalore and was earning Rs.15,000/- per month. Due to accidental injuries, he could not attend his work as a result loss of SCCH-14 3 MVC 3460/2014 earning and earning capacity. Adugodi Traffic police have registered Cr.No.57/2014 against the driver of Petrol Tanker bearing No.KA-03-
C-7869 for the offences punishable U/Sec.279, 338 of IPC. The respondents are the owner and insurer of the Petrol Tanker bearing No.KA-03-C-7869 and they are jointly and severally liable to pay compensation. Hence, the petitioner has sought for awarding compensation of Rs.8,00,000/- with cost and interest.
3. In pursuance of the notice, the respondent no.2 has appeared before the Court through his counsel and filed statement of objections denying the averments of the petition as false and contended that the petition is not maintainable either in law or on facts, that the insured and concerned police have not complied with their mandatory duties, that the Petrol Tanker bearing No.KA-03-C- 7869 is classified as hazardous goods carrying vehicle, that the driver of the said vehicle was not holding a valid and effective driving license at the time of accident, that there was no rashness or negligence on the part of the driver of the Petrol Tanker bearing No.KA-03-C-7869 and the accident did not take place in the manner as alleged in column No.22 of the petition, that the accident has occurred due to sole negligence of the petitioner, that the compensation claimed by the petitioner is highly excessive, arbitrary and speculative when compared to comparable cases. However, he has admitted the issuance of the policy in favour of the respondent No.1 in respect of Petrol Tanker bearing No.KA-03-C-7869, but he has denied the occurrences of the accident and involvement of petrol tanker in the alleged accident. In spite of service of notice, the respondent No.1 remained absent and he is placed exparte.
SCCH-14 4 MVC 3460/20144. On the basis of above pleadings, the following issues were framed.
ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 30.07.2014 at about 08.00 p.m., At Kaveri Petrol bunk, 80 feet Peripheral road, Koramangala, Bangalore, in an accident arising due to rash and negligent driving of driver of Petrol Tanker Lorry bearing No.KA-03-C-7869?
2. 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 himself as PW.1 and examined a witness as PW-2. He has got marked documents as Ex.P1 to P17. The respondent no.2 has examined his officer as RW1 and ARTO of K.R.Puram, Bangalore as RW-2. He has got marked documents as Ex.R1 to 7.
6. Heard the arguments 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.1,05,000/-
from the respondent No.2 .
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The petitioner has examined himself as PW-1 and got marked copies of police records as Ex.P1 to 4, 6 to 8, 11 and 12 to prove the manner of accident. He has produced copy of SCCH-14 5 MVC 3460/2014 wound certificate and Discharge summary to prove the nature of injury caused to him in the accident. The said medical records are marked as Ex.P5 and 9. The respondent No.1 remained exparte and respondent No.2 has examined RW-1 and 2 and got marked Ex.R1 to 7. The evidence adduced by the respondent No.2 is not helpful to decide this issue as the said evidence is pertaining to the license held by the driver of the petrol tanker.
9. PW-1 Hanumantha Rao has reiterated the averments of the petition and stated that on 30.07.2014 at about 08.00 pm, at Kaveri Petrol Bunk on 80 feet road, Kormangala, Bangalore, Petrol Tanker Lorry bearing No.KA-03-C-7869 driven by its driver in a rash and negligent manner and reverse direction came and dashed against his motorcycle, that due to the said accident, he sustained fracture of right patella and other injuries. Except bare denials, nothing is elicited from him in cross examination. It is suggested to him that at the time of accident, the Petrol Tanker Lorry bearing No.KA-03-C- 7869 was not in motion and the petitioner himself rode his vehicle in high speed and lost balance and dashed against the tanker, that he sustained simple injuries in the accident. PW-1 has denied the said suggestions as false. The respondent No.2 has not produced any evidence to establish that the petitioner rode his motorcycle in high speed and lost balance and dashed against the tanker, that he sustained simple injuries in the accident. Hence, the contentions taken by the respondent No.2 during the cross examination of PW-1 are liable to be rejected.
10. Copies of police records namely FIR, spot panchanama, IMV report, sketch, notice U/s 133 of M.V.Act, reply to such notice, SCCH-14 6 MVC 3460/2014 chargesheet, order sheet of C.C.No.2568/2014 and plea of driver of petrol tanker are at Ex.P1 to 4, 6 to 8, 11 and 12. These documents corroborate the evidence of PW-1 as to manner of accident and nature of injuries caused to the petitioner. FIR was lodged on 01.08.2014 at about 4.00 pm by the petitioner. He sent his complaint to police station through his wife. Adugodi traffic police have registered Cr.No.57/2014, investigated the matter and filed charge sheet against the driver of Petrol Tanker Lorry bearing No.KA-03-C- 7869 for the offences punishable U/s 279 and 338 of IPC and U/s 187 of M.V.Act. There is a delay of 2 days in lodging complaint, but wound certificate at Ex.P5 and Discharge summary at Ex.P9 disclose that there was no delay in admitting the petitioner in the hospital. The petitioner has explained about the delay in his complaint before police and such explanation is believable and acceptable. IMV report discloses that there was no damage to the petrol tanker, but the motorcycle of the petitioner was damaged in the accident. The brake system of both the vehicles was in order. It is opined by the IMV authority that the accident was not due to any mechanical defects of the vehicles. Looking to the suggestions given by the counsel for the respondent No.2 to PW-1 in cross examination, it can be said that there was an accident between the petrol tanker and the motorcycle of the petitioner. The sketch at Ex.P4 reveals that the petrol tanker was driven in reverse direction and was dashed against the motorcycle of the petitioner. If there was no indication by the driver of the petrol tanker before taking his vehicle in reverse direction, there was no chance for the other road users to know about taking vehicle in reverse direction. The charge sheet filed by the police indicates the negligence of the driver of the petrol tanker.
SCCH-14 7 MVC 3460/2014There is nothing on record to believe that the investigation done by the police is defective or collusive. Copy of order sheet and plea of the driver of the petrol tanker in C.C.No.2568/2014 disclose that the said driver has appeared before Criminal Court and admitted his guilt, that the said driver was convicted and was sentenced to pay fine. Therefore, I have no hesitation to hold that the accident has occurred due to sole negligence of the driver of the Petrol Tanker Lorry bearing No.KA-03-C-7869. There is no evidence to believe that there was contributory negligence on the part of the petitioner. Merely on the basis of suggestions, the defence of the respondent No.2 can not be believable. Copy of wound certificate and Discharge summary at Ex.P5 and 9 disclose that the petitioner sustained fracture of right patella in the accident. The said injury is termed as grievous in nature and hence, I am of the opinion that the petitioner has succeeded to prove this issue and I answer the same in affirmative.
11. ISSUE NO.2: The petitioner has proved that he sustained fracture of right patella in the accident and the said accident was due to the rash and negligent driving of driver of the Petrol Tanker Lorry bearing No.KA-03-C-7869. The respondents are the owner and insurer of the said petrol tanker. The respondent No.1 remained exparte and respondent No.2 has admitted his status as insurer of the said petrol tanker. Copy of notice U/s 133 of M.V.Act and copy of reply to the said notice are at Ex.P6 and 7. These documents disclose that the respondent No.1 is the owner and the respondent No.2 is the insurer of Petrol Tanker Lorry bearing No.KA-03-C-7869. Since, the accident has occurred due to rash and negligent driving of the driver SCCH-14 8 MVC 3460/2014 of the said vehicle, the respondents are jointly and severally liable to compensate the petitioner.
12. PW-1 Hanumantha Rao has deposed that he was aged 32 years, was working as Second Divisional clerk in Government of Karnataka, Public Works Ports and Inland Water Transport Department and was drawing a salary of Rs.15,000/- pm., His evidence as to age, occupation and income is not denied in cross examination, but PW-1 has admitted in cross examination that at the time of accident, he was getting monthly salary of Rs.13,288/-. The age of the petitioner is shown as 32 years in police records and medical records. His occupation is shown as State Government employee in FIR. In the complaint, designation of the petitioner is shown and tallies with the evidence of PW-1. Copy of driving license at Ex.P13 discloses that the petitioner was born on 02.06.1982. It means, the petitioner was aged 32 years on the date of accident. Hence, I hold that the petitioner was aged 32 years, was working as second divisional clerk in Government of Karnataka, Public Works ports and Inland Water Transport Department and was drawing monthly salary of Rs.13,288/- as on the date of accident.
13. PW-1 Hanumantha Rao has stated that he sustained fracture of right patella in the accident. Contents of wound certificate and discharge summary at Ex.P5 and 9 corroborates the oral evidence of PW-1. There is nothing on record to disbelieve the oral and documentary evidence produced by the petitioner regarding injuries sustained by him in the accident. He was admitted in Deepak Hospital on 30.07.2014 and was discharged on 31.07.2014 against medical advise. The petitioner has produced X-rays, medical bills SCCH-14 9 MVC 3460/2014 amounting to Rs.26,448/-, prescriptions which are marked as Ex.P10, 14 and 15. PW-2 Satish Rao is Medical Record Keeper of Deepak Hospital and he has produced IP records pertaining to the petitioner along with authorisation letter. IP records at Ex.P17 support the version of PW-1 and corroborate the contents of X-rays, medical bills and prescriptions at Ex.P10, 14 and 15. There is nothing on record to disbelieve the medical bills. The said bills are consistent with wound certificate, discharge summary and IP records. Medical bills disclose that the petitioner was on follow up treatment and rest after discharging from Deepak Hospital. He has not produced leave certificate. Looking to the injuries caused to the petitioner, I am of the opinion that the petitioner was on follow up treatment and bed rest for one month. During the said period, the petitioner might have incurred expenses towards nourishment, conveyance and attendant charges. PW-1 has admitted that he has received salary during leave period. However, he might have lost leave. He is not entitled for loss of income during the period of treatment and bed rest, but he is entitled for one month salary towards loss of leave as he could have used the same for encashment or for other purpose. PW-1 has further admitted that he is getting same salary after the accident. Hence, there is no loss of earning capacity and the petitioner is not entitled for any compensation towards future loss of income.
14. Evidence of PW-1 and contents of wound certificate, discharge summary and IP records reveal that the petitioner has sustained fracture of right patella. There is no medical evidence that the petitioner is suffering from permanent disability due to such SCCH-14 10 MVC 3460/2014 injury. The petitioner has not examined doctor to establish the same. Hence, I am of the opinion that the accidental injury has not caused any disability to the petitioner. There is nothing on record to believe that the fracture is not united. However, the petitioner has some difficulties due to injury. Evidence of PW-1 in that regard is believable. Such difficulties result in loss of amenities. There is no requirement of treatment in future. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.30,000/- towards pain and sufferings, Rs.27,000/- towards medical expenses, Rs.13,000/- towards loss of leave, Rs.10,000/- nourishment, conveyance and attendant charges and Rs.25,000/-towards loss of amenities. Thus, he is entitled for just and reasonable compensation of Rs.1,05,000/- with interest @9% from the date of petition till the date of payment.
15. The respondents are jointly and severally liable to pay compensation as calculated above, but the respondent No.2 has contended that the driver of insured vehicle was not holding a valid and effective driving license on the date of accident. RW-1 Sandeep has reiterated the averments of written statement. The RW-2 Shantha Kumar is ARTO and he has supported the version of RW-1 and stated that the said driver was not authorised to drive a petrol tanker as he was not holding special endorsement to the effect. The respondent No.2 has produced Authorisation Letter, Copy of Policy with terms and condition, Copy of Letter to owner and driver, Permit Extract, B' register extract, History sheet for driver and DL Extract which are marked as Ex.R1 to 7. These documents corroborate the evidence of RW-1 and 2 and reveal that the charge sheeted driver was holding license to drive a motorcycle with gear, a LMV, transport vehicles and SCCH-14 11 MVC 3460/2014 a PSV bus on the date of accident and he has not obtained special endorsement to drive hazardous vehicle. Admittedly, the insured vehicle is a hazardous vehicle. As per the evidence of RW-2, the driver was not holding a valid and effective driving license to drive the same, but there is no evidence to believe that the petrol tanker was loaded with petrol at that time. Police records do not disclose the same. RW-1 has not deposed about the said fact. Moreover, he is not an eyewitness. The accident has occurred while taking the vehicle in reverse direction. In the absence of specific evidence and looking to the manner of accident, it can be said that the petrol tanker was returning after unloading of petrol and it was empty when the accident has occurred. Since, the tanker was not loaded with petrol, special endorsement is not required to drive the same. Our Hon'ble High Court has held in ruling reported in ILR 2015 KAR 393 as under;
"Motor Vehicle Act, 1988-Section 173 (1) Accident claim-judgment and award- liability fastened on the Insurance Company - insurer's appeal challenging the quantum of compensation and the liability fastened on it- requirement of special license in case of a vehicle carrying dangerous of hazardous nature of goods-Held, proviso to section 14(2)(a) clearly indicates that special license is required to drive a vehicle, which is carrying on goods of dangerous or hazardous nature and such license will be effective for a period of one year and thereafter the driver has to undergo one day refresher course of the prescribed syllabus. Therefore, it is clear that the special license to be granted under this proviso will be valid for one year and thereafter it will be renewed subject to the driver undergoing one day refresher course, which indicates that in order to grant such special license, the driver has to undergo a course which is meant for safety SCCH-14 12 MVC 3460/2014 measure. Safety measure is required when the vehicle is carrying on combustible, dangerous or hazardous nature of goods. In other words, if a tanker is not carrying on goods of dangerous of hazardous nature, there is no necessity to obtain such special license to drive an empty tanker"
The above ruling is applicable to this case. The charge sheeted driver was holding license to drive transport vehicle. Non existence of special endorsement to drive hazardous vehicle is not a ground to absolve the respondent No.2 from indemnifying the respondent No.1. The respondent No.1 has not violated the terms and conditions of policy. Hence, I am of the opinion that the respondents are jointly and severally liable to compensate the petitioner. In view of policy, the respondent No.2 is liable to deposit the amount. Hence, I answer the issue accordingly.
16. ISSUE NO.3: In view of above discussion and findings, I proceed to pass 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.1,05,000/-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.1,05,000/- 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 13 MVC 3460/2014
After deposit, entire with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 4th day of November 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 14 MVC 3460/2014
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Hanumantha Rao
PW.2 Sathish Roa
Respondent' s
RW-1 Sandeep S.K.
RW-2 Shantha Kumar
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of Spot Mahazar
Ex.P3 - Copy of IMV report
Ex.P4 - Copy of Sketch
Ex.P5 - Copy of Wound Certificate
Ex.P6 - Copy of Notice U/s 133 of M.V.Act
Ex.P7 - Copy of reply to notice U/s 133 of M.V.Act
Ex.P8 - Copy of Charge Sheet
Ex.P9 - Discharge Summary
Ex.P10 - X-rays (5 in nos)
Ex.P11 - Copy order sheet in CC No. 2568/14
Ex.P12 - Copy of Plea
Ex.P13 - Copy of driving licence
Ex.P14 - Medical bills (28 in nos amounting to
Rs.26,448/-)
Ex.P15 - Prescriptions (4 in nos)
Ex.P16 - Authorisation Letter
E.xP17 - IP records.
Respondent's
Ex.R1 - Authorisation Letter
Ex.R2 -Copy of Policy with terms and condition
Ex.R3 -Copy of Letter to owner and driver
Ex.R4 - Permit Extract
Ex.R5 - B register extract
Ex.R6 - History sheet for drivers
Ex.R7 - DL Extract
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 15 MVC 3460/2014
SCCH-14 16 MVC 3460/2014
Dt.04.11.2015
P-CSM
R1-Exparte
R2-RSS
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.1,05,000/-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.1,05,000/- 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, entire with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-. Draw award accordingly XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 17 MVC 3460/2014
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3460/2014 Petitioner/s : Sri.Hanumanth Rao.G.R. S/o Ramadeva Rao @ Ramdev G.M., Aged about 32 years, R/at No.37, Gavipuram Village, Basavanagudi, Bangalore-19.
(By pleader Sri CSM) V/s Respondent/s 1. Shanmugam.M, S/o Muthuswamy, No.326, Old No.12, Wheller Road Extn, Cox Town, Bangalore-84.
2.Royal Sundaram Alliance Insurance Company Ltd.
Sundaram Towers, No.46, Whites Road, Royapettah, Chennai-600014.
(R1-Exparte,
(R2-By pleader Sri RSS)
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
SCCH-14 18 MVC 3460/2014
injuries sustained by the petitioner/Death of in a motor
Accident by vehicle No.
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.1,05,000/-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.1,05,000/- 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, entire with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.2,500/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 19 MVC 3460/2014By 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 20 MVC 3460/2014
Mvc no.3428/14
REASONS