Bangalore District Court
Mr. Syamlal K vs Reliance General Insurance Co. Ltd on 24 April, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 24th day of April 2015.
Present: Sri.N.Subramanya, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.4487/2013
Petitioner : Mr. Syamlal K.
S/o K. Padmanabhan,
Aged about 27 years,
R/at: No.Lal Sadan Hobli,
Anjukunnu (PO),
Manandavadi,
Wayanad.
And working at:
TriMedx India Pvt. Ltd.,
Bangalore.
(By Dharani P., Adv.)
-Versus-
Respondents: 1. Reliance General Insurance Co. Ltd.,
Branch office west wing,
No.28, 5th Floor, Century Building,
M.G.Road,
Bangalore - 560 001.
Cover Note No:C1409522338002685
Period from: 03.07.2012 to 2.07.2013
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(By Sri.Ashok N.Patil, Adv.)
2. Mr. Mahesh P.
S/o Papanna,
No.41, Kolagunda Hatti,
Arsikere Taluk, Hassan District,
Karnataka - 573201.
(By Venkataraman Naik, Adv.)
JUDGMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.40,00,000/- from the Respondents for the injuries sustained by him in Motor Vehicle's Accident.
2. The brief facts of the case are that:
On 29.06.2013 at about 6.50 a.m., when the petitioner was riding his motor cycle bearing reg. No.KA-04- HE-9271 on Koramangala 100 feet road, near Jaipuriya junction at that time a Car bearing reg. No.KA-13-A-8662 came in a rash and negligent manner and dashed against the petitioner. Due to the impact he fell down and 3 MVC.No.4487/2013 SCCH-22 sustained grievous injuries. Immediately he was shifted to St.John's hospital for treatment and later was shifted to Sparsh hospital wherein he was admitted as an inpatient. He has contended that he has spent a sum of Rs.10,00,000/- towards medical expenses, nourishment and other incidental charges. Prior to the accident, he was hale and healthy and was working as Clinical Engineer at TriMedx India Pvt. Ltd., and earning a sum of Rs.15,000/- p.m. Due to the accidental injuries he has lost my income and also lost his future carriers and earning capacity.
3. Petitioner has contended that the accident in question was caused solely due to the rash and negligent driving of the Car bearing reg. No.KA-13-A-8662 by its driver. Hence, petitioner has prayed for award of compensation of Rs.40,00,000/- with interest at 12% p.a. from the date of petition till realisation and such other reliefs as this tribunal deems fit to grant under the circumstances of the case.
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4. In pursuance of service of the notice, Respondents No.1 and 2 appeared through their respective counsels and filed their separate written statement.
5. 1st Respondent, in its written statement, denied all the averments made by the petitioner in his petition and admits the issuance of policy and the liability if any is subject to the terms and conditions mentioned in the policy. The claim petition is liable to be dismissed for the non-joinder of necessary parties and further contended that the accident has taken place due to rash and negligent riding of the Motor cycle bearing reg. No.KA-04-HE-9271 and not due to the Car bearing reg. No.KA-13-A-8662. it further submitted that the Car bearing reg. No.KA-13-A- 8662 was not having valid and effective driving licence and fitness certificate at the time of accident and has violated the terms and conditions of the policy and has taken other general defences. It further contended that the compensation claimed is too excessive and exorbitant. On 5 MVC.No.4487/2013 SCCH-22 all these grounds, it prays to dismiss the claim petition of the petitioner.
2nd respondent in its written statement has contended that the petition filed by the petitioner is not maintainable either under law or on facts. It further contends that the accident is caused due to the negligence of the petitioner who took 'U' turn towards Koramangala with rash and negligent riding and not due to the negligence of the Car bearing reg. No.KA-13-A-8662 and same is shown in spot mahazar. It has taken other general defences and prays to dismiss the claim petition of the petitioner.
6. On the basis of the above pleadings, following Issues have been framed:
1. Does the petitioner proves that he sustained grievous injuries arising out of rash or negligent driving of the driver of Car bearing reg. No.KA-13-A-
8662, on 29.06.2013 at about 6.50 a.m. as alleged?
2. Whether the petitioner is entitled for compensation?
If so, how much and from whom?
3. What Order or Award?
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7. Petitioner to prove the above said issues, has got examined himself as PW1 and examined two more witnesses as P.W.2 & P.W.3 and got marked Exs.P.1 to P.28 and closed his side. 1st Respondent, has got marked Guruprasad, Deputy Manager as RW-1 and got marked one document as Ex.R.1 and side closed.
8. Heard the arguments.
9. My answer to the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Yes, to the extent as shown in the final
order, from Respondent No.1 and 2.
Issue No.3 : As per final order for the following
REASONS
10. Issue No.1:
Petitioner (Injured) got examined himself as PW1 and has filed his affidavit, narrating the accident as mentioned in the above pleadings. Petitioner to substantiate the said facts, has produced True copies of FIR, Complaint, Charge sheet, Wound Certificate, Sketch, Spot Mahazar and IMV 7 MVC.No.4487/2013 SCCH-22 report pertaining to Crime No.41/2013 of Adugodi Traffic Police Station, marked as Exs.P.1 to P7 respectively. On going through the above documents and the Charge sheet- Ex.P.3, it reveals the police on the complaint of the Manjesh C., after investigation, have placed charge sheet against the driver of the Car bearing reg. No.KA-13-A-8662 for having caused the accident due to his rash and negligent driving and the petitioner has sustained grievous injury.
Though the 1st respondent has taken contention of contributory negligence and also learned counsel for 1st respondent argued that the accident is in the middle of the junction, contributory negligence of the petitioner also to be taken into consideration. But, on perusal of entire materials on record, there is no evidence of contributory negligence. Hence, said contention cannot be accepted. Nothing has been brought out in the cross examination of PW1 to disbelieve that the accident was not caused due to the negligence of the driver or the petitioner to have 8 MVC.No.4487/2013 SCCH-22 contributed his negligence for the accident. Hence, from the material placed on record, it could be detected that the accident in question has occurred due to the rash and negligent driving of the Car bearing reg. No.KA-13-A-8662 by its driver and the petitioner as per Ex.P.4 - Wound certificate has sustained grievous injuries. Hence, I answer Issue No.1 in the Affirmative.
11. Issue No.2:
PAIN AND SUFFERINGS:-
This issue pertains to award of compensation. Petitioner has sustained injuries in the RTA. Petitioner in his evidence has deposed contents of petition and produced relevant documents to prove the injury. Petitioner was admitted to Sparsha hospital, he has produced Ex.P.4 - Wound certificate from the said hospital and he has sustained following injuries:-
1. Compound fracture of right leg both bones -
Type III B. 9 MVC.No.4487/2013 SCCH-22 Injury is grievous in nature. Hence, a sum of Rs.60,000/- is awarded under the head "Pain and sufferings".
12. MEDICAL EXPENSES:-
The petitioner has produced Ex.P.11 from the said hospital, a detailed bill regarding treatment for a sum of Rs.4,27,912/-. The final bill was Rs.5,00,000/-, but the petitioner has received a sum of Rs.1,00,000/- by the Medi Assist Limited Insurance company and remaining amount of Rs.4,00,000/- is paid by the petitioner as per the final bill and receipts and also as per Ex.P.19 - letter of the Medi Assist and hence petitioner is to be paid the medical bills of Rs.4,27,912 which is rounded off to Rs.4,30,000/- is awarded under this head.
13. LOSS OF INCOME DURING LAID UP PERIOD:-
As per Ex.P.8 and P.9 - Discharge summaries, petitioner was inpatient for different dates for surgery. As per Ex.P.26 - letter of the petitioner's employer he remained 10 MVC.No.4487/2013 SCCH-22 absent from July 2013 and petitioner was getting a salary of Rs.7,500/-. As per Ex.P.25 - IT returns total salary was Rs.86,780/- which comes to Rs.7,232/- p.m. The income of Rs.7,232/- is rounded off to Rs.7,500/- p.m. Hence, for a period of minimum ten months a sum of Rs.75,000/- is awarded under this head.
14. FOOD, NOURISHMENT, ATTENDANT AND TRANSPORTATION CHARGES:-
In the petition as well as in the evidence PW1 deposed that he has spent a sum of Rs.10,00,000/-. As per the Ex.P.8 and P.9 - Discharge summaries he was inpatient on different dates and he has taken bed rest for about six months. Hence, a sum of Rs.40,000/- is awarded under this head.
15. LOSS OF INCOME DUE TO DISABILTY:-
As per the evidence of doctor PW-2 there is total disability of right lower limb of 64% and whole body disability at 22%. He is treated doctor, petitioner has taken 11 MVC.No.4487/2013 SCCH-22 various treatments at different periods and underwent surgery. In the cross examination he admits that he did not have any document as on today to show that he is terminated from the service and PW-3 employer also admitted in the cross examination that they have not issued letter terminating the petitioners service and he is only remained absent and petitioner was permanent employer. From the above evidence, there is no clear evidence to show that petitioner was not working. PW-1 also in the cross examination at page no.7 admits that his company is not issued any letter for terminating the service. The petitioner was only temporarily remained absent and he can continue his services in the same company. Hence, as per the decision reported in:-
ILR 2010 Kar 2439 between Subash vs. New India Assurance Co. Ltd.
"if the petitioner has continued or if he is able to carry out service question of awarding compensation towards loss of future income does not arise."12 MVC.No.4487/2013
SCCH-22 Hence, he cannot be awarded under this head and is entitled under the head "Loss of Amenities".
16. LOSS OF AMENITIES IN LIFE:-
The petitioner has examined the Doctor as P.W.2. He has deposed in his evidence about nature of injuries sustained and treatment given to the petitioner. There was compound type III B comminuted fracture of distal third right leg for which he has assessed 64% to the right lower limb and 22% to the whole body disability. Looking to the fracture, the whole body disability at 22% as assessed by the Doctor-P.W.2 and looking to the nature and gravity of the injuries sustained by him petitioner is entitled for a sum of Rs.1,00,000/- under the head, Loss of Amenities in Life.
17. There are no further materials to show that the injuries would affect the life expectancy of the petitioner. There is no evidence for awarding any compensation under 13 MVC.No.4487/2013 SCCH-22 other heads. Hence, the petitioner is awarded compensation under the following heads:
1. Pain and sufferings Rs. 60,000-00
2. Medical expenses Rs. 4,30,000-00
3. Food, nourishment, attendant & Rs. 40,000-00 Transportation
4. Loss of income during laid up period Rs. 75,000-00
5. Loss of amenities in life Rs. 1,00,000-00 Total Rs.7,05,000-00
18. Thus, in all, petitioner is entitled for compensation of Rs.7,05,000/-. It is just, fair and adequate under the facts and circumstances of the case.
19. With regard to Liability: As discussed by me on Issue No.1, the accident has occurred due to the rash and negligent driving of the Car bearing reg. No.KA-13-A- 8662 by its driver. 2nd Respondent is the owner of the said Car bearing reg. No.KA-13-A-8662. Hence, he is vicariously liable for the acts of his driver. Since, the 2nd Respondent has insured his vehicle with the 1st Respondent and the 1st Respondent has admitted the issuance of insurance policy with respect to the Car bearing reg. No.KA-13-A-8662 and 14 MVC.No.4487/2013 SCCH-22 it is in force as on the date of the accident. The 1st respondent is contractually liable to indemnify the insured. Hence, Respondents No.1 and 2 are jointly and severally held liable to pay compensation to the petitioner with interest at 8% p.a. from the date of petition till realization as per the citations reported in:-
1. ILR 2009 KAR 385 between Smt. Nasreen Banu and others vs. The Divisional Manager and another.
2. 2005 ACJ 644 between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd.
and another.
Hence, I answer Issue No.2 in the affirmative accordingly.
20. Issue No.3: In view of my finding on Issue Nos. 1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under Sec.166 of M.V. Act, is hereby allowed in part, with cost.15 MVC.No.4487/2013
SCCH-22 The petitioner is entitled for compensation in a sum of Rs.7,05,000/- (Rupees Seven Lakhs Five Thousand only) and shall carry interest at 8% p.a. from the date of petition till realisation of the amount.
Respondents No.1 and 2 are jointly and severally held liable to pay the above said compensation amount to the petitioner and the primary responsibility is fixed on 1st Respondent-Insurance company to deposit the compensation amount within 30 days from the date of this order.
Entire compensation amount with interest shall be paid to the petitioner on deposit as petitioner has spent major amount on medical expenses and as he is educated.
Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 24th day of April 2015).
(N.SUBRAMANYA) Member MACT & XX ASCJ., Bangalore.16 MVC.No.4487/2013
SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 Syamlal K. PW2 Dr. Nagaraj B.N. PW3 Arun Kumar V.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P1 Copy of FIR Ex.P2 Copy of Complaint Ex.P3 Copy of Charge sheet Ex.P4 Copy of Wound certificate Ex.P5 Copy of Sketch Ex.P6 Copy of Spot Mahazar Ex.P7 Copy of IMV report Ex.P8-10 Discharge summary Ex.P11 81 medical bills Ex.P12 Appointment letter
Ex.P13-15 3 letters of salary received Ex.P16-17 3 pay slips Ex.P18 Copy of DL Ex.P19 Copy of Medi Assist Health Insurance Ex.P20 3 photos Ex.P21 CD Ex.P22 IP Case sheets Ex.P23 4 x-rays Ex.P24 Authorisation letter Ex.P25 IT from No.16 Ex.P26 Letter of Absenteeism Ex.P27 Bank statement Ex.P28 8 Medical bills LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW-1 Guruprasad LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 True Copy of Insurance policy Member, MACT & XX ASCJ, Bangalore.17 MVC.No.4487/2013
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