Bangalore District Court
Sri.Krishnappa.M vs The New India Assurance on 17 April, 2021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru
DATED THIS THE 17th DAY OF APRIL 2021
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A. LL.B (Spl.)
VII Addl. SCJ and ACMM,
Member, MACT-3, Bengaluru.
M.V.C. No.4068/2019
Petitioner : Sri.Krishnappa.M,
S/o Muniyappa,
Aged about 30 years,
Residing at Buvanahalli Village,
Kasaba Hobli,
Malur Taluk,
Kolar District.
(By Sri.M.V.Harisha, Advocate)
-Vs-
Respondents : 01. The New India Assurance
Co. Ltd.,
Motor TP Hub,
Mahalakshmi Chambers,
No.9, 2nd Floor,
M.G. Road,
Bangalore - 560 001.
(Policy No:61270131170100010746
Valid from 24-10-2017 to 23-10-2018
(By Sri.S.Praveena, Advocate)
02. Sri.Ramesh Gowda,
S/o Beerappa,
Aged about 45 years,
(SCCH-3) 2 MVC 4068/19
R/o Vadanadahalli Village,
Mavahalli Post,
Bangarpet Taluk,
Kolar District - 563 114.
(By Sri.S.Kiran Kumar, Advocate)
*******
JUDGMENT
This petition is brought U/Sec 166 of M.V. Act 1988, for the compensation to the injuries sustained by the petitioner in the accident caused on 20-09-2018.
02. The brief facts are as under:-
It is the case of the petitioner that on 20-09-2018 at about 7.20 p.m., he was standing at Battarahalli Gate, Opp. to Agree Gold Layout, Kolar - Bethamangala Road for purchase of vegetables, at that time the rider of Motor Cycle bearing reg. No. KA-07-EA-5233 rode it in rash and negligent manner, with high speed and dashed against the petitioner. As a result the petitioner fell down and suffered severe injuries. He was immediately shifted to R.L. Jalappa hospital, Kolar, and further shifted to Sri Gaurav Orthopedic and Surgical hospital, Kolar, wherein he was admitted and took treatment as inpatient and undergone surgery.(SCCH-3) 3 MVC 4068/19
03. According to the petitioner he was hale and healthy prior to accident and was doing Data Entry Operator work on contract basis at Government hospital, Malur and earning Rs.15,000-00 p.m. Now he is disabled from doing this work and as such has claimed Rs.10,00,000-00 (Ten lakhs only) as compensation against the respondents.
04. In response to the notice issued, the respondent No.1 appeared through Sri.SP Advocate and respondent No.2 appeared through Sri.SKK Advocate.
05. The respondent No.1 has filed written statement denying the case of the petitioner and contended that their liability is subject to terms and conditions of the policy, the petition is bad for non- joinder of necessary parties. It is further contended that the complaint is lodged with delay of 4 days and it is a cooked up story and the vehicle of the respondent is not involved in the accident and it is falsely implicated to gain compensation. The amount claimed is exorbitant and the age, avocation, income and expenses details furnished by the petitioner are all denied as false. Therefore, sought to dismiss the case against them.
06. The respondent No.2 has filed written statement contending that he is the owner of the said (SCCH-3) 4 MVC 4068/19 vehicle and the accident is admitted, but the expenses details and income details given by the petitioner are all denied as false. It is further contended that the policy is valid and insured with respondent No.1, as such sought to dismiss the case against them.
07. Based on the aforesaid pleadings, the following Issues have been framed: -
ISSUES
1. Whether the petitioner proves that he has sustained grievous injuries in the accident occurred on 20-09-2018 at about 7.20 p.m., in front of Agree Gold Layout, Kolar - Bethamangala Road, Kolar Taluk, Kolar, due to negligent act of rider of Motor Cycle bearing reg.
No.KA-07-EA-5233 as alleged in the petition?
2. Whether the petitioner is entitled for compensation? If so, from whom and at what quantum?
3. What Order or Award?
08. In order to prove the case, petitioner gave evidence of himself as P.W.1 and has produced Ex.P.1 to Ex.P.14 documents. Also examined the doctor who examined and assessed the disability as P.W.2 and through them Ex.P.15 to Ex.P.18 documents are marked. On the other hand respondent No.1 examined its Company Official as R.W.1 and through them Ex.R.1 to Ex.R.3 documents are marked.
(SCCH-3) 5 MVC 4068/1909. Arguments are heard from both sides.
10. My findings on the aforesaid 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:
REASONS
11. Issue No.1:- In this case petitioner alleged that rider of Motor Cycle bearing reg. No. KA-07-EA-5233 has caused the accident and injuries to petitioner. In order to substantiate the claim, petitioner gave his evidence as P.W.1 by reiterating petition averments in his chief-examination filed by way of affidavit. He has produced Ex.P.1 to Ex.P.14 documents such as FIR, Complaint, spot Panchanama, Seizer Mahazar, IMV report, Wound certificate, Charge sheet, Discharge summary, Salary certificate, Aadhaar card, Medical bills, Prescriptions, Photographs and X-rays.
12. In the cross-examination of P.W.1 it is an attempt made by the counsel for respondent No.1, to elicit that the vehicle of respondent is falsely implicated, as there is no vehicle number mentioned in the hospital records and on the ground that there is 4 (SCCH-3) 6 MVC 4068/19 days delay in lodging the complaint, though there was no impediment for the family members to lodge the complaint on the same day. However, the allegations that the vehicle of respondent is falsely implicated are denied by P.W.1.
13. To counter the case of petitioner, the respondent No.1 has examined its Company Official as R.W.1 and through them got produced Authorization letter, Copy of MLC and Copy of Policy at Ex.R.1 to Ex.R.3. In the cross-examination it is admitted that in Ex.R.2 the MLC copy it is written as "hit by two- wheeler". Based on this evidence the counsel for petitioner argued stating that the Charge sheet is filed against rider of Motor Cycle bearing reg. No. KA-07-EA-5233 and it is unrebutted. On the other hand the counsel for respondent No.1 argued stating that there is delay of 4 days in lodging the complaint and vehicle number is not mentioned and hence it is a cooked up story.
14. On analyzing the oral and documentary evidence, it is noticed that the date of accident is stated as 20-09-2018 and Ex.P.2 Complaint is lodged on 24-09-2018 by the wife of the injured petitioner and in that she has stated that as she was attending to the hospital for the treatment to the injured, the delay is caused. It is true that from the records produced, the (SCCH-3) 7 MVC 4068/19 petitioner has shown that he was taking treatment continuously and the documents produced by the respondent No.1 through R.W.1 i.e., Ex.R.2 MLC extract clearly shows that the history of accident is stated on the same day of the accident i.e., on 20-09-2018 with R.L. Jalappa hospital, Tamaka. It is clearly stated that he was hit by two-wheeler. Though it is not mentioned that which vehicle has caused the accident, but there is no delay in stating that petitioner has met with accident caused by two-wheeler. The Investigation Officer has filed Charge sheet against the rider of Motor Cycle bearing reg. No.KA-07-EA-5233 for the offences punishable U/Sec 279, 338 of IPC. The same is unrebutted cogently, though R.W.1 is examined, these facts are not taken away. Hence, I am of the opinion that there are no materials to disbelieve the fact that petitioner suffered injuries in the accident caused on 20-09-2018 by the rash and negligent act of rider of Motor Cycle bearing reg. No.KA-07-EA-5233. Even the respondent No.2 the owner of the offending vehicle has not disputed it. The decision relied by petitioner counsel in 2011(4) SCC 693 can be followed for accepting the reasons for delay in lodging the complaint. Therefore, in my opinion the petitioner is successful in proving Issue No.1 and hence I answered the same in the Affirmative.
(SCCH-3) 8 MVC 4068/19Issue No.2:
15. The heads under which compensation is awarded in personal injury cases are the following: -
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability;
(iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
16. To prove the injuries petitioner has produced the Wound certificate of R.L. Jalappa hospital, Kolar at Ex.P.6 and it shows that he has sustained:-
01. Abrasion of 3 x 1 cm present over right ankle anterior side
02. Both bone fracture of right leg (SCCH-3) 9 MVC 4068/19 According to the doctor injury No.1 is simple in nature and injury No.2 is grievous in nature.
17. Apart from it, the petitioner has summoned the doctor and examined him as P.W.2 and through them got produced documents such as Clinical notes, Evaluation form, Inpatient case sheet and one X-ray at Ex.P.15 to Ex.P.18. P.W.2 is Dr.Imran Hussain, Orthopedic Surgeon at Sri Gaurav Orthopedic and Surgical hospital of Kolar, who treated the petitioner and assessed the disability, has deposed that petitioner suffered segmental comminuted fracture of distal tibia and fibula of right leg and has undergone surgery. According to him on recent examination petitioner complained of pain in the right knee and ankle on doing strenuous activities, difficulty in climbing stairs, walk long distance, sit cross-leg. On examination he found there is surgical scar mark over right knee. X-ray of right leg shows united fracture with implants in situ. As such he has assessed disability of right lower limb at 39% and 13% to the whole body.
18. In the cross-examination of P.W.2 it is admitted that fracture is united and hip movement is normal, but denied that the disability assessed is not proper. So, from the evidence of P.W.2 coupled with the evidence of P.W.1, it can be seen that the P.W.1 (SCCH-3) 10 MVC 4068/19 stated that he was working as Data Entry Operator, but he has not produced any documents to show that he has been removed from the service where he was working, though he undertook to examine the employer, but has not done so. However, the respondents have not cogently rebutted the evidence of P.W.2 to say that there was no any disability to the petitioner. On going through the Wound certificate, it is noticed that there is fracture to the both bones of right leg. In this case the petitioner has not produced any documents to show that he is disqualified to work as a Data Entry Operator. However, the disability is assessed by the treated doctor and hence in my opinion the disability of 13% to the whole body can be considered.
19. Petitioner has produced Ex.P.9 Salary certificate issued by one Metro Security and Allied Services which shows that he is appointed as Data Entry Operator at General hospital, Malur and was paid Rs.15,000-00 p.m. But the petitioner has not adduced the evidence of any authority from Malur hospital or the Metro Security and Allied Services to prove the occupation and income. Therefore, in the absence of examination of these important witnesses, Ex.P.9 cannot be believed. The petitioner has also failed to produce any documents to show that he is (SCCH-3) 11 MVC 4068/19 qualified to work as Data Entry Operator. In the absence of such necessary proof, I deem it fit to fix the notional income of the petitioner at Rs.9,000-00 p.m.
20. Petitioner has produced Aadhaar card copy at Ex.P.10 and according to it, his date of birth is shown as 03-06-1989. The accident took place on 20-09-2018. So, as on the date of accident his age would be 29 years and the same is accepted for calculating the compensation. So, as per Sarla Varma case the multiplier applicable is "17" and the same is considered. Therefore, the petitioner is entitled for loss of future income as under:
Rs.9,000 x 12 x 13 x 17/100 = Rs.2,38,680-00 (Two lakhs thirty eight thousand six hundred eighty only).
21. The petitioner has produced Discharge summary at Ex.P.8 and it shows that he has taken treatment as inpatient from 20-09-2018 to 24-09-2018 at Sri Gaurav Orthopedic and Surgical hospital, Kolar. Therefore, looking to the days of treatment and nature of injuries suffered, I deem it fit to award Rs.20,000-00 (Twenty thousand only) towards pain and sufferings undergone during treatment period.
22. I also deem it fit to award Rs.27,000-00 (Twenty seven thousand only) towards loss of income during laid up period.
(SCCH-3) 12 MVC 4068/1923. I also deem it fit to award Rs.15,000-00 (Fifteen thousand only) towards loss of amenities and nutritious food.
24. Further I deem it fit to award Rs.10,000-00 (Ten thousand only) towards attendant charges and conveyance.
25. The petitioner has produced various medical bills at Ex.P.11 which contains 28 bills for Rs.70,130-00, which are supported by 4 prescriptions at Ex.P.12. In the cross-examination of P.W.1 it is suggested that as the wife of petitioner is working at M.G. Ali hospital, he has got reimbursed the medical bills and hence Sl. Nos.2 to 12 are produced in xerox copies. However, P.W.1 answered that the originals are lost and hence the xerox copies are produced. To prove that these are the genuine bills, the petitioner has not examined the authority of Gaurav hospital. Hence, the same cannot be considered. As such after deducting these bills amount of Rs.12,006-00, the petitioner is entitled for Rs.58,124-00 (Fifty eight thousand one hundred twenty four only) as medical expenses.
26. P.W.2 doctor has opined that petitioner requires one more surgery for removal of implant, which would cost Rs.20,000-00 to Rs.25,000-00. Even though there is no such specific estimation is issued in this regard, but looking to the need of the petitioner, I (SCCH-3) 13 MVC 4068/19 deem it fit to award Rs.20,000-00 (Twenty thousand only) towards future medical expenses.
27. Therefore, the petitioner is entitled for total compensation of Rs.3,88,800-00 (Three lakhs eighty eight thousand eight hundred only) as under:-
1. Loss of future income Rs.2,38,680-00
2. Pain and Agony 20,000-00
3. Medical expenses 58,124-00
4. Loss of amenities and nutritious food 15,000-00
5. Attendant charges and conveyance 10,000-00
6. Loss of income during laid up period 27,000-00
7. Future medical expenses 20,000-00 TOTAL Rs.3,88,804-00 rounded off to Rs.3,88,800-00
28. Regarding liability:- As held on Issue No.1 the respondents have failed to prove their defence, hence, in my opinion when they admit the policy and it being in force, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner. Hence, Issue No.2 is answered partly in the Affirmative.
29. Issue No.3:- In view of my findings on Issue Nos.1 and 2 as above and with regard to awarding the interest is concerned, the petitioner is entitled for simple interest at the rate of 6% per annum from the (SCCH-3) 14 MVC 4068/19 date of petition till deposit. As such I proceed to pass the following:-
ORDER The claim petition filed by the petitioner U/Sec 166 of the M.V. Act is hereby allowed in part, with costs.
Petitioner is entitled for Rs.3,88,800-00 (Three lakhs eighty eight thousand eight hundred only) as compensation with interest at 6% p.a. (the interest awarded is not applicable to future medical expenses of Rs.20,000-00) from the date of petition till the date of deposit.
Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner. However, in view of valid insurance policy, respondent No.1 - Insurance Company is directed to pay the total awarded amount and shall deposit the same within time stipulated under section 168(3) of M.V. Act.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalized bank or schedule bank for a period of three years and the remaining amount shall be released to him through E-payment on proper identification without any further (SCCH-3) 15 MVC 4068/19 proceedings. However, he is at liberty to withdraw periodical interest accrued on his deposit amount from time to time.
The advocate's fee is fixed at Rs.500-00.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in open court, on this the 17th day of April 2021).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioner:
P.W.1 Krishnappa.M
P.W.2 Dr.Imran Hussain
List of documents marked on behalf of the
petitioner:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Spot Panchanama
Ex.P.4 Seizer Mahazar
Ex.P.5 IMV report
Ex.P.6 Wound certificate
Ex.P.7 Charge sheet
Ex.P.8 Discharge summary issued by Gaurav
Orthopedic hospital
(SCCH-3) 16 MVC 4068/19
Ex.P.9 Salary certificate issued by Metro Security
Services
Ex.P.10 Notarized copy of Aadhaar card of petitioner Ex.P.11 Medical bills (28 in Nos.) amounting to Rs.70,130-00 Ex.P.12 Prescriptions (4 in Nos.) Ex.P.13 Photographs (3 in Nos.) along with CD Ex.P.14 X-rays (9 in Nos.) Ex.P.15 Clinical notes Ex.P.16 Evaluation form Ex.P.17 Inpatient case sheet Ex.P.18 One X-ray List of witnesses examined for the Respondents:
R.W.1 Radhika.N
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authorization letter
Ex.R.2 Copy of MLC
Ex.R.3 Copy of Policy
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.