Bangalore District Court
M.Krithika vs Cholamandalam M.S on 11 February, 2015
BEFORE THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL & V ADDL. JUDGE
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH.20)
Dated this the 11th day of February 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge &
XXIV A.C.M.M., Member, M.A.C.T., Bangalore
M.V.C.No.5933/2013
PETITIONER: M.Krithika,
W/o M.Regupathy Ragavan,
Aged 29 yrs,
Residing at: # 305/1,
Sri.Manjunatha Aracader,
Kallappa layout, Channasandra,
Bangalore-67.
(By Pleader Sri.
Santhosh Chocko)
-Vs-
RESPONDENTS: 1. Cholamandalam M.S.
Gen. Insurance Co.ltd.,
No. Star Bazar Building,
(Ramkumar Mills),
Rajajinagar entrance,
Dr. Rajkumar road,
Rajajinagar, Bangalore - 10.
(By Pleader Sri.H.K.Ramamurthy)
SCH-20 2 MVC.5933/2013
2. P. Ragavendra,
S/o Pillaiah,
Aged Major,
#1525, Teachers colony,
Belethur, Hosur Taluk,
Krishnagiri District.
Pin-635109.
(Placed exparte)
*****
JUDGMENT
The Petitioner has filed present petition U/sec.166 of M.V. Act claiming compensation amount of Rs.10,00,000/- for the injuries sustained by her in the Motor Vehicle Accident along with interest and for costs.
2. The brief facts of the petitioner's case are that:
On 12-10-2013 at about 8-30 p.m. while the petitioner was proceeding as a pillion rider along with her husband and son in a motor cycle bearing Reg.No.TN- 22/BE-6791 on Marathhalli bridge Junction, Bangalore, when they reached near bus stop, one Tipper lorry bearing Reg.No.TN-70/F-4134 dashed against the petitioner's vehicle, due to rash and negligent driving by it's driver. As a result of which, the petitioner and others fell down and SCH-20 3 MVC.5933/2013 the rear wheel of the said lorry ran over her left leg and the petitioner sustained grievous injuries. Immediately after the accident, she was shifted to Yashomathi Hospital, for first aid, there to Manipal Hospital Bangalore, wherein she took treatment as an inpatient and spent more than Rs.4,00,000/- towards medical, conveyance, nourishment, food, transport and other charges.
3. The petitioner was hale and healthy at the time of accident, and she was aged about 29 years. The petitioner was working as a Program Analyst, at Cognizant Technology solutions Pvt., Ltd., Bangalore, and drawing a salary of Rs.30,000/- per month. Due to said accident, the petitioner suffered pain and mental agony. She is unable to carry on her duties, which she used to do prior to accident. The above said accident occurred due to rash and negligent driving of the driver of the Tipper lorry bearing Reg.No.TN- 70/F-4134. 1st Respondent being the Insurer and 2nd respondent being the owner of the said vehicle, are jointly and severally liable to pay compensation to the petitioner and prayed to allow the petition.
SCH-20 4 MVC.5933/20134. After institution of the petition, summons and notices were served on the respondents. The respondent no.2 has not chosen to appear before the court and hence placed exparte.
The respondent No.1 has appeared before the tribunal through it's counsel and filed it's written statement contending that, the petition is not maintainable either in law or on facts. This respondent while admitting the issuance of Insurance policy, in respect of Tipper lorry bearing Reg.No.TN-70/F-4134 restricted its liability to the terms and conditions of the policy. Further respondent No.1 has denied all the averments made in the petition itself. It is further contended that, this accident occurred due to rash and negligent riding of the rider of the motor cycle bearing Reg.No.TN-22/BE-6791. It is further contended that, the petition is bad for non joinder of necessary parties. It is further contended that, the driver of Tipper lorry bearing Reg.No.TN-70/F-4134 was under the influence of alcohol and he does not posses valid and effective driving license to drive said vehicle, as on the date of accident, hence there is a violation of policy conditions. Further this respondent has denied the age, income, occupation, earnings, mode of accident, vehicle involved and expenses incurred towards medical expenses and other SCH-20 5 MVC.5933/2013 incidental charges. It is further contended that, the Compensation claimed by the petitioner is highly exorbitant and excessive. Hence, prayed for dismissing the petition.
5. By going through the petition averments and the written statement contentions, this tribunal has framed the following:
ISSUES
1. Whether the petitioner proves that, on 12-
10-2013 at about 8-30 p.m. when she was traveling as a pillion rider in motor cycle bearing Reg.No.TN-22/BE-6791, on Marathahalli bridge junction, near Bus stop, at that time one Tipper lorry bearing Reg.No.TN-70/F-4134 driven by its driver came from high speed and dashed against the petitioner's vehicle. Due to impact the petitioner and his son fell down and sustained grievous injuries?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What order or award?
ADDITIONAL ISSUES:
1. Whether the 1st respondent proves that, the driver of the Tipper lorry bearing Reg.No.TN-70/F-4134 was under the influence of alcohol at the time of accident?SCH-20 6 MVC.5933/2013
2. Whether the 1st respondent proves that, the driver of the said lorry had no valid and effective driving license as on the date of the accident?
(By oversight, in the additional Issues, it is mentioned as '2nd Respondent'.)
6. Petitioner in order to prove her case, got examined herself as P.W.1 and two witnesses as PW.2 and 3 and got marked documents at Ex.P.1 to Ex.P.24. On the other hand, Respondent got examined Sub-Inspector, Airport Traffic Police station, as Rw.1 and it's Legal Manager as Rw.2 and got marked copy of Insurance policy at Ex.R1.
7. Heard arguments of learned Counsels for both the parties and also perused the written arguments filed by the counsel for the Petitioner.
8. My findings on the above issues are as follows:
Issue No.1 In the Affirmative,
Issue No.2 Partly in the affirmative
Addl. Issue No.1 As per the discussion,
Addl. Issue No.2 In the Negative.
Issue No.3 As per final order
for the following:
SCH-20 7 MVC.5933/2013
REASONS
9. Issue No.1:- As already observed above, it is the case of the petitioner that, On 12-10-2013 at about 8- 30 p.m. while the petitioner was proceeding as a pillion rider along with her husband and son in a motor cycle bearing Reg.No.TN-22/BE-6791 on Marathhalli bridge Junction, Bangalore, when they reached near bus stop one Tipper lorry bearing Reg.No.TN-70/F-4134 dashed against the petitioner's vehicle, due to rash and negligent driving by it's driver. As a result of which, rear wheel of the said lorry ran over her left leg and the petitioner sustained grievous injuries.
10. In order to prove this fact, Petitioner got examined herself as P.W.1 and two witnesses as PW.2 and 3 and got marked documents at Ex.P.1 to Ex.P.24. Among them: Ex.P1 is the FIR, Ex.P1(a) is the Copy of Complaint, Ex.P2 is the Copy of Spot mahazar, Ex.P2(a) is the Copy of Spot sketch, Ex.P3 is the Copy of IMV report, Ex.P4 is the Copy of Wound certificate, Ex.P6 is the Copy of Notice U/sec.133 of M.V. Act and Ex.P7 is the Copy of Reply Notice.
SCH-20 8 MVC.5933/201311. The F.I.R. and Charge sheet clearly reveal that, a case has been registered against the driver of the Tipper lorry bearing Reg.No.TN-70/F-4134, for the offence punishable U/Sec. 279 and 338 of I.P.C R/w sec.185 of M.V. Act. Ex.P.2 copy of the spot mahazar and Ex.P2(a) Spot sketch, also reveal about the accident. Moreover, the petitioner also deposed in her cross-examination that, accident occurred due to the negligent driving of the driver of the Tipper lorry bearing Reg.No.TN-70/F-4134. Under the above said facts and circumstances, it can be held safely without any hesitation that, the accident occurred due to the rash and negligent driving of the driver of the Tipper Lorry only. Hence, I answer Issue No.1 in the affirmative.
12. Additional Issue No.1: Here, the charge sheet filed U/sec..185 of M.V. Act also. So, the arguments of the learned counsel for the 1st respondent is that, as the driver of the said Tipper lorry was under the influence of alcohol at the time of driving the said vehicle, it is not liable to indemnify the 2nd respondent. Regarding this aspect, of course, this Tribunal agree that, the charge sheet filed ' R/w sec.185 of M.V. Act.' Moreover, the Sub-Inspector of Airport Traffic P.S. by name P.Prem Kumar got examined on behalf of Respondent No.1 as RW.1. Actually, before the SCH-20 9 MVC.5933/2013 Tribunal he has produced one document saying it reveal the fact, about the date on which, he tested the driver with his alcohol meter and the name of the driver etc., but, as the said document was a xerox one and it was not legible, this tribunal has rejected that document.
13. Further, the said Sub-Inspector deposed that, on 12-10-2013, when he was on duty at the main road of Marathhalli, his staff get one driver to check out, Whether he had consumed alcohol. When he tested the said person with his alcohol meter, it reveal that, he had consumed 45% Mg. alcohol. So, he issued a notice to that driver, he appeared before the court and pleaded guilty and paid the fine amount before the court in C.R. No.11604/2013. In the cross examination this witness deposed that, he has not get that driver to the doctor in order to examine the said driver. He further deposed that, it was not necessary to get him to the doctor for examination. Regarding, this aspect the advocate for petitioner has drawn the attention of this Tribunal towards Sec.185 of M.V. Act.
Section 185 says:-
Driving by a drunken person or by a person under the influence of drugs whoever, while driving or attempting to drive, a motor vehicle - - -SCH-20 10 MVC.5933/2013
[(a) has, in his blood, alcohol exceeding 30 mg. per 100m], of blood detected in a test by a breath analyser, or ]
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
Shall be punishable.........
Further, Section 204 says:-
204. Laboratory test.
(1) A person who has been arrested under section 203 may while at a police station be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if - - - -
(a) it appears to the police officer that, the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or SCH-20 11 MVC.5933/2013
(b) such person when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
PROVIDED........
EXPLANATION:
For the purposes of this section "laboratory test" means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.
14. Thus, as per the above cited provisions, the blood of the driver ought to have been taken and send it to Lab recognized by the Central or a State Govt., and ought to have obtain a report. But, in this present case, though the I.O. has filed the charge sheet U/.sec. 185 of M.V.Act also, he has not send the blood of the driver for a Laboratory test and not obtained any report. Under these circumstances, this Tribunal cannot held that, this driver was not at all in a position to drive the Lorry at that time. (Of course, due to his rash and negligent driving only this accident occurred.) Hence, the respondent no.1 cannot argue that, it is not liable to indemnify the respondent SCH-20 12 MVC.5933/2013 no.2. Hence, I answered Additional Issue No.1 accordingly.
15. Additional Issue No.2: Though the 1st respondent has taken the contention that, the driver of the said lorry had no valid and effective driving licence to drive the same, it has not proved the said contention. This contention taken only for the name sake. Hence, I answered this Additional Issue No.2 in the Negative.
16. Issue No.2:- Petitioner has produced wound certificate at Ex.P.4 which shows that, petitioner had sustained the following injury:
Left Gustillo Anderson type IIIC, Fracture of Tibia and Fibula degloving injuries over the left lower limb extending from just below the knee all over the dorsum of LT leg and foot dorsum.
It is opined that, injury is grievous in nature.
17. So, in view of my finding that, the petitioner has sustained injuries only because of the negligent driving of the driver of the Tipper lorry bearing Reg.No.TN-70/F-4134. I am of the opinion that, he is entitled for Rs.20,000-00 towards pain and suffering.
SCH-20 13 MVC.5933/201318. Here, it is the case of the petitioner that, she has been hospitalized at Manipal Hospital, as an inpatient. To prove this fact, she has produced Discharge summaries issued by the said hospital, which are marked at Ex.P8 and 9. Ex.P8 clearly discloses that, the petitioner has admitted to the hospital on 29-12-2013 and discharged on 30-12-2013. Ex.P9 discloses that, the petitioner has admitted to the hospital on 12-10-2013 and discharged on 30-10-2013 ie., for 21 days. Taking all these facts into consideration, I am of the opinion that, the petitioner is entitled for the compensation of Rs.10,000-00 for the attendant charges and nourishing food. Accordingly, I award the same.
19. The petitioner was shifted from the place of accident to the hospital and from there to her residence. The cause title of the petition reveal that, the petitioner is the resident of # 305/1, Sri.Manjunatha Aracader, Kallappa layout, Channasandra, Bangalore-67. Regarding this aspect, I am of the opinion that, the petitioner is entitled for total compensation of Rs.3,000-00 towards the conveyance.
20. The petitioner has claimed compensation of Rs.4,00,000/- towards the medical expenses. But, the SCH-20 14 MVC.5933/2013 petitioner has produced medical bills at Ex.P14 for a sum of Rs.1,58,002/- only. (Including Medical bills copies and some original bills) and Ex.P18 for a sum of Rs.21,145/-. In the cross examination PW.1 has clearly deposed that, " nnPÉ ºÉ¯ïÛ PÉÃgï ¥ÉçÊ. °. ¤AzÀ aQvÉì ¨Á§ÄÛ MlÄÖ gÀÆ.1,20,000/- UÀ¼À£ÀÄß ¨Àsj¹gÀÄvÁÛgÉ. ¤¦-14 gÀ C¸À®£ÀÄß ¤ÃªÀÅ ¤ªÀÄä PÀA¥À¤UÀÉ ¤ÃrgÀÄwÛÃj JAzÀÄ ªÀiÁrzÀ ¸À®ºÉUÉ ¸ÁQë, F §UÉÎ ¤RgÀªÁV ºÉüÀ®Ä DUÀÄwÛ®è J£ÀÄßvÁÛgÉ. "
21. Here, though the TTK Health Care TPA Pvt., ltd., has paid an amount of Rs.1,20,000/- to the Hospital, it has paid as the premium was paid either by this petitioner or by her husband. As per the decision of our own High court that amount paid by the Health Ins., company cannot be deducted by the Tribunal. The Tribunal has to pay the medical expenses. Hence, by considering nature of injuries sustained by the petitioner, and also by considering all the bills and prescriptions, this tribunal award Rs.1,80,000/- only under the head of Medical expenses.
22. Here, the petitioner's say is that, she was working as a Programme Analyst, at Cognizant Technology Solutions, Pvt., ltd, Bangalore, and was drawing a salary of Rs.30,000/- p.m. To prove this fact, she has produced SCH-20 15 MVC.5933/2013 Ex.P13 Appointment letter issued by said company, which discloses that, the annual total compensation and benefits package of Rs.2,11,500/- during the probation cum training period of 6 months. But, the petitioner has not examined her employer. Moreover, in the cross examination she has clearly deposed as, " C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ J°èAiÀÄÆ PÉ®¸À ªÀiÁqÀÄwÛgÀ°®è. C¥ÀWÁvÀªÁzÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ AiÀiÁªÀ PÀA¥À¤¬ÄAzÀ®Æ AiÀiÁªÀÅzÉà ¸ÀA§¼À ¥ÀqÉAiÀÄÄwÛgÀ°®è. "
She has produced the Degree certificate, which reveal that, she has done her Bachelor of Engineering in Electronics and communication, from Anna University. So, though she was not working in any company at the time of accident, and not working at present, definitely she will work in future. By considering her age and qualification this tribunal could infer that, she was earning Rs.15,000/- per month.
23. Here, contention of the petitioner is that, the petitioner suffered pain and mental agony. She is unable to carry on her duties, which she used to do prior to accident. To prove said fact, the petitioner got examined two SCH-20 16 MVC.5933/2013 witnesses as PW.2 and PW.3 ie., PW.2 who is Dr. Sunil Kumar. K.S., Plastic Surgeon, Manipal Hospital Bangalore has assessed the disability of the petitioner at 20% to the whole body and PW.3, who is Dr. Raghavendra Reddy.R, Orthopaedic surgeon, at Manipal Hospital, has assessed the disability of the petitioner at 22% to the whole body. Moreover this tribunal has observed that, the petitioner came to the Tribunal with the help of her husband with walking stick by wearing a type of shoe as prescribed by the Doctors. Considering all these things, this Tribunal can consider the disability at the rate of 20% to the whole body.
24. As per the petition, age of the petitioner was 29 years at the time of accident. The medical records produced by the petitioner has to be taken into consideration to prove the age of the petitioner at the time of accident. As per Ex.P4 wound certificate and Ex.P8 and 9 Discharge summaries age of the petitioner was 29 at the time of accident. So, the age of the petitioner was 29 at the time of accident. Then the proper multiplier is 16. This tribunal has already inferred her monthly income as Rs.15,000/- . which is under the following terms:-
15,000x12x16x20%= 5,76,000/-SCH-20 17 MVC.5933/2013
Hence, I award Rs.5,76,000/-under the head loss of future earning capacity on account of permanent disability.
25. Here, the petitioner also sought for expenses towards future medicine. Regarding this aspect the petitioner has produced Ex.P17 given by the Consultant Plastic surgeon, Doctor Ashok B.C., Manipal Hospital, Bangalore, stating that, " She requires tendon transfer to restore foot moments and an ankle surgery (Arthodesis) to stabilize the foot. The approximate cost of these corrective procedures is expected to be around Rs.3,00,000/- - Rs.4,00,000/- " . Moreover, this doctor has treated this petitioner. Thus, by considering the doctor's evidence as well as the documentary evidence, this tribunal award a sum of Rs.2,50,000/- under the head of future medical expenses.
26. This petitioner has suffered a lot due to the accidental injuries. So far, she has not come out of that sufferings. Hence, I award a sum of Rs.25,000-00 under the head of loss of amenities of life , which would be reasonable.
27. Thus, this tribunal would award a total compensation of Rs.10,64,000-00 as detailed below: -
SCH-20 18 MVC.5933/20131. Pain and suffering Rs. 20,000-00
2. Nourishment Food, Rs. 10,000-00 attendant charges
3. Conveyance Rs. 3,000-00
4. Medical expenses Rs. 1,80,000-00
5. Loss of future earning Rs. 5,76,000-00 capacity
6. Future medical Rs. 2,50,000-00 expenses
7. Loss of amenities in Rs. 25,000-00 life Total Rs. 10,64,000-00
28. Here, the respondent No.1 is the Insurer and Respondent No.2 is the Owner of the Tipper lorry are jointly and severally liable to pay compensation amount to the petitioner.
29. In view of the slashing rate of interest on term deposit in Nationalized banks, awarding of 6% interest would meet the ends of justice. Accordingly, I answered Issue No.2.
s
30. Issue No.3 : In view of the discussions made on above said issue Nos.1and 2 and also Additional Issue No.1 & 2, I proceed to pass the following:-
SCH-20 19 MVC.5933/2013ORDER The petition is partly allowed with costs.
The petitioner is entitled for a
compensation of Rs.10,64,000-00 with
interest at 6% p.a. from the date of petition till the date of its realization.
The respondent No.1 and 2 are Jointly and severally liable to pay the aforesaid compensation amount with interest to the petitioner and 1st respondent being the Insurer is directed to deposit the same within 60 days from the date of this order.
After depositing the amount, the petitioner is entitled to receive only half of the compensation amount with interest in cash and the remaining amount has to be deposited in her name in any nationalized bank for a period of 2 years.SCH-20 20 MVC.5933/2013
Advocate fee is fixed at Rs.1,000-00.
Draw Award accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 11th day of February 2015).
(K.BHAGYA) V ASCJ & XXIV A.C.M.M., Member, MACT, Mayo Hall unit, Bangalore.
ANNEXURE Witnesses examined for petitioner:
PW.1 : N.Krithika PW.2 : Dr. Sunil Kumar. PW.3 : Dr. Raghavendra Reddy.R Documents marked for petitioner: Ex.P1 : Copy of FIR, Ex.P1(a) : Copy of Complaint, Ex.P2 : Copy of Spot mahazar, Ex.P2(a) : Copy of Spot sketch, Ex.P3 : Copy of IMV report, Ex.P4 : Copy of Wound certificate, Ex.P6 : Copy of Notice U/sec.133 of M.V. Act, SCH-20 21 MVC.5933/2013 Ex.P7 : Copy of Reply Notice. Ex.P8 & 9 : Discharge summaries. Ex.P10 : Out patient record Ex.P11 : Copy of B.E. certificate, Ex.P12 : Copy of PUC marks card Ex.P13 : Appointment letter copy, Ex.P14 : Medical bills Ex.P15 : Ambulance bills Ex.P16 : Advance receipts., Ex.P17 : Future surgery certificate issued by Manipal Hospital. Ex.P18 : Medical bills Ex.P19 : Transportation bills., issued by Sri.Sai Ram Taxi Tours and Travels. Ex.P20 : Out patient record., Ex.P21 : Inpatient record., Ex.P22 : Out patient record., Ex.P23 : X-ray Ex.P24 : X-ray report.
Witnesses examined for respondents:
Rw.1 : P. Prem Kumar.
Rw.2 : Rajesh
Documents marked for respondents:
Ex.R1 : Copy of Insurance policy.
(K.BHAGYA)
V ASCJ & XXIV A.C.M.M., Member,
MACT, Mayo Hall unit, Bangalore.