Bangalore District Court
Smt.Selvi vs Sri. Arockia Dass.M on 7 April, 2021
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND M.A.C.T., BENGALURU (SCCH-22)
PRESENT : Smt.Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 7th Day of April 2021.
M.V.C.2754/2018
PETITIONER : Smt.Selvi,
Aged about 45 years,
S/o Mani,
# Sumithra Building,
Govinda Sheety Playa,
Konappana Agrahara
Bengaluru-560100.
(Rep.By Sri. Nagaraj and Santhosh, Advocate)
- Vs -
RESPONDENTS : 1. Sri. Arockia Dass.M,
Son of Michael Raj,
Aged about 21 Years,
R/at No.192, 6th Cross,
Lakshman Rao Nagar,
Vevek Nagar Post, Koramangala,
Bangalore-560047.
(Owner of the Honda Activa bearing
Reg No.KA-01-HK-8026)
(Exparte)
SCCH-22 2 MVC No.2754/2018
2. The Manager Legal ICICI Lombard
General Insurance Company Ltd.,
No.89, 2nd floor,
SVR Complex, Hosur Road,
Madivala,
Bangalore-560068.
(Policy No.3005/2010798416/B0/0000023118
Valid from 12.06.2016 to 11.06.2018)
(Rep.By Sri. S.Maheswara, Advocate)
:: JUDGMENT ::
The petitioner has filed the present petition under Sec.166 of M.V. Act claiming compensation of Rs.20,00,000/- from the respondents for causing grievous injuries to her in a road traffic accident.
2. The brief facts of the case are as follows:
On 06.03.2018 at about 7.30 a.m., she was walking on the side of Hosuru road to attend her job and suddenly one Honda Activa vehicle bearing registration No.KA-01-HK-8026 hit her near Beretena Agrahara, near metro malige and the rider rode the vehicle in a rash and negligent manner and as such she sustained right leg both bone fracture right superior and inferior pubic rami SCCH-22 3 MVC No.2754/2018 fracture with grade II liver laceration, right leg both bone fracture operated with CRIF with IMIL nailing done and she is having difficulty in bending the right knee and pain over the right knee, contusion over the right leg, tenderness over the cheek and the said injuries are grievous in nature.
3. Immediately after the accident she was shifted to Victoria Hospital, Bangalore after first aid treatment again she was shifted for further treatment to PES Institute of Medical Sciences and Research Kuppam-Chittoor District., wherein she was admitted as an inpatient from 07.03.2018 to 12.03.2018 and again in PES Hospital from 22.03.2018 to 26.03.2018 and again readmitted to PES Hospital and she was admitted from 13.04.2018 to 17.04.2018 wherein X-rays were taken and fracture of injuries confirmed, she underwent treatment and wound disability done, cleaned sutured and discharged with an advise for regular follow up treatment. She spent huge amount towards medical treatment and towards conveyance, nourishment, attendant charges etc.
4. Prior to the accident she was hale and healthy and aged SCCH-22 4 MVC No.2754/2018 about 45 years and was working at Sai Garments as a house keeping worker at Bangalore and drawing monthly income of Rs. 12,000/- per month and on account of injuries sustained in the accident she is unable to do any work and incurred loss of income, lost earning capacity. Due to the said injuries she is suffering from pain and mental agony, shock and accidental injuries caused the permanent disability.
5. First respondent is the owner of Honda Active bearing registration No. KA-01-HK-8026 and second respondent is the insurer of the vehicle therefore both respondents are jointly and severally liable to pay compensation.
6. The accident occurred solely an account of negligence of rider of Honda active bearing registration No. KA-01-HK-8026. The Jurisdiction Police have registered FIR in Crime No.28/2018 for the offence punishable under Section 279 and 337 of IPC. Hence prayed to pass award as prayed.
7. In response to the notice, though served to respondent no.1 not choosen to appear before the court and on service of SCCH-22 5 MVC No.2754/2018 notice respondent no.2 appeared through its counsel and filed its written statement by denying the case of petitioner and further contended that in the event if this tribunal granting compensation the rate of interest prevailing Nationalized Banks for fixed deposit of one year cannot exceed more than 6% p.a and contended that the rider of motor cycle was not holding valid and effective driving license as on the date of accident. As per the wound certificate of Victoria Hospital one Clinton has been mentioned as the rider of motor cycle but as per the complaint the rider himself admitted the injured to Victoria Hospital for treatment however the said Clinton was not having valid and effective driving license to drive the vehicle as such charge sheeted falsely in collusion with the Jurisdiction police in order to cause loss to the second respondent, as such second respondent is not liable to pay any compensation to the petitioner. Hence, prayed for dismissal of the petition with exemplary cost.
8. On the basis of pleadings of the parties, this Tribunal has framed the following issues:
SCCH-22 6 MVC No.2754/2018
1. Whether the petitioner proves that, he has sustained injuries on account of road traffic accident took place on NH-7, Hosur road, Near Metro Mall, Beratena Agrahara, Bangalore due to rash and negligent driving of the driver of Honda Activa bearing registration No. KA-01-HK-8026 dated 06.03.2018 at about 7.30 a.m as alleged in the petition?
2. Whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. What order or award?
9. In order to prove his case, the petitioner got examined himself as P.W.1 and got marked 11 documents at Ex.P.1 to Ex.P11. In order to prove the disability got examined Dr. Avinash Parthasarathy, Consultant Orthopedic Surgeon at Sreenivasa Hospital, Bengaluru as PW.2 and got marked 3 documents at Ex.P12 to Ex.P14.
10. On the contra though respondent no.2 the legal manager N.D. Nitin got examined as RW.1 and in support of oral evidence nothing has been marked. Also examined one Nagaraj.G.V as RW.2 and got marked 3 documents at Ex.R1 to Ex.R3.
SCCH-22 7 MVC No.2754/2018
11. Heard arguments.
12. On perusal of oral as well as documentary evidence my findings on the above issues are as fallows:
Issue No.1 : In the Affirmative.
Issue No.2 : Partly in the Affirmative.
Issue No.3 : As per final order for the
following.
:: REASONS ::
ISSUE No.1:-
13. It is the case of petitioner that, On 06.03.2018 at
about 7.30 a.m., she was walking on the side of Hosuru road to attend her job and at that time suddenly one Honda Activa motor cycle came behind vehicle bearing registration No.KA-01-HK- 8026 and dashed to her near Beretena Agrahara, near metro malige and due to the impact she sustained severe injuries and she was shifted to Victoria Hospital, Bangalore and after first aid treatment she was shifted to PES Institute of Medical Sciences and Research Kuppam-chittoor District and she was admitted as an inpatient from 07.03.2018 to 12.03.2018 and again admitted from 22.03.2018 to 26.03.2018 and again admitted on 13.04.2018 to 17.04.2018 and X-rays were taken and again she had been SCCH-22 8 MVC No.2754/2018 admitted for further treatment in Sri Krishna Hospital, Bangalore as an inpatient from 01.12.2018 to 14.12.2018 and she under went treatment and wound disability done and discharged for regular follow up treatment and bed rest. She has spent huge amount towards medical treatment, conveyance etc.
14. Prior to the accident she was hale and healthy and aged about 45 years and she was working at Sai Garments as a house keeping worker and earning a sum of Rs. 12,000/- per month but on account of injuries she is unable to do any work for which she incurred loss of income and loss of earning capacity. She is suffering from pain and mental agony and shock. Her family members are depending on her income. She incurred Rs.52,688/- towards medical expenses and Rs.40,000/- towards conveyance. In spite of treatment she had not at all recovered and getting pain, cannot lift and carry weight and cannot do work.
15. First respondent being owner of Honda Activa bearing registration No. KA-01-HK-8026 and second respondent is the insurer of the vehicle as such both are jointly, severally liable to SCCH-22 9 MVC No.2754/2018 pay the compensation. The accident occurred solely on account of rash and negligent riding of the rider of Honda Active. Complaint lodged and FIR registered in crime no.28/2018 for the offence punishable under Section 279 and 337.
16. The same has been reiterated in her affidavit filed in lieu of her examination in chief and in support of her oral evidence got marked FIR at Ex.P1, complaint at Ex.P1a, mahazar at Ex.P2, Sketch at Ex.P3, IMV report at Ex.P4, wound certificate at Ex.P5, charge sheet at Ex.P6, discharge summaries at Ex.P7 to 9, 17 medical bills at Ex.P10, notarized copy of Aadhar card at Ex.P11.
17. On perusal of all these documents which establishes the occurrence of the accident due to rash and negligent driving by the driver of respondent no.1 who riding the Honda Activa bearing registration No. KA-01-HK-8026.
18. P.W.1 has been cross-examined by the respondent no.2. wherein she admitted the complaint lodged by public and also public took her to hospital but she gave statement to police but she denied the suggestion that the rider of the motor cycle taken SCCH-22 10 MVC No.2754/2018 her to hospital and the same has been stated in the complaint but according to her the public have hospitalized her. She admitted that in the wound certificate the name of rider Clinton has been mentioned and the said Clinton was riding the motor cycle at the time of accident, but on perusal of Ex.P5 the name of Clinton has been shown as the person who accompanied by the injured (two wheeler rider) has been mentioned. Though in Ex.P5 the name of person mentioned as Clinton to the prosecution documents that is Ex.P1 and Ex.P1a and Ex.P4, Ex.P6 clearly discloses the number of the vehicle involved. Further suggestion made to PW.1 that the said Clinton does not hold driving license as such implicated Arockia Dass in collusion with the police and filed the final report but the said suggestion was specifically denied by PW.1. PW.1also denies the suggestion that only small injuries which are simple in nature caused to her in that accident and no such surgery continued and the documents have been created and got produced except that nothing has been elicited.
19. There is no dispute in respect of occurrence of SCCH-22 11 MVC No.2754/2018 accident . Petitioner established that she sustained injuries due to the accident which has been corroborated by Ex.P1 to Ex.P6 and petitioner also established that she sustained injuries due to the accident.
20. On perusal of oral evidence of PW.1 as well as suggestions made to her during cross-examination along with the documents pertaining to criminal case registered and to prove the same petitioner got marked FIR, complaint, mahazar, sketch IMV report, wound certificate, final report at Ex.P1 to Ex.P6. These documents clearly established the accident occurred due to rash and negligent riding of the offending vehicle by its rider.
21. On looking in to IMV Report Ex.P4, it is evident that the vehicle involved in the accident and also looking in to the final report Ex.P6 it is clear that the accident occurred due to rash and negligent riding by the rider of the above said Activa Honda. By considering all these aspects, I hold that the petitioner established the accident which was caused due to rash and negligent riding of respondent no.1 motor cycle Activa Honda SCCH-22 12 MVC No.2754/2018 rider who riding the vehicle in a high speed, rash and negligent manner and dashed against him and caused accident resulting which she sustained grievous injuries more over RW.1 during cross-examination clearly admitted that charge sheet filed against him which has not been challenged by him. Petitioner established her case by producing cogent, clear and convincing evidence. Accordingly I answered issue No.1 in the Affirmative. ISSUE No2:-
22. The petitioner has stated that, she has sustained severe injuries in the said accident i.e., right leg both bone fracture right superior and inferior pubic rami fracture with grade II liver laceration, right leg both bone fracture and due to which she took treatment first aid at Victoria Hospital and thereafter shifted to PES Institute of Medical Sciences and Research Kuppam-Chittoor District and she was readmitted to PES for the 3rd time and after discharge again she was there as an inpatient from 07.03.2018 to 12.03.2018 and again readmitted to Sri. Krishna Hospital, Bangalore and she was an inpatient from SCCH-22 13 MVC No.2754/2018 01.12.2018 to 14.12.2018 and in spite of treatment she is not in a normal position and not able to do any work and thereby incurred loss of income and loss of earning capacity and she is suffering from pain and mental agony, shock and accidental injuries caused the permanent disability. In support of her evidence she got produced wound certificate at Ex.P.5, 3 discharge summaries, 17- bills at Ex.P7 to Ex.P10. Considering the gravity and nature of injuries, period of treatment including follow-up treatment, it is just and proper to award Rs.20,000/- under the head pain and sufferings including mental agony.
23. In order to corroborate the evidence of PW.1 has examined the doctor by name Dr. Avinash Parthasarathy., Consultant Orthopedic Surgeon at Sreenivasa Hospital as PW.2. PW.2 has stated that in his affidavit filed in lieu of his examination in chief wherein he examined the petitioner on 06.09.2019. PW.2 stated that petitioner has restricted ROM in right knee and ankle, along with pain in right leg, and difficulty in climbing stairs, squatting and sitting crossed leg and she has SCCH-22 14 MVC No.2754/2018 whole body disability at 16% due to the permanent physical impairment in right lower limb accordingly in view of clinical and radiological assessment as per notification of the Government of India and further PW.2 stated that the petitioner has to under go one more surgery for removal of implants and the estimated cost of the said procedure in his hospital would be Rs.30,000/-. In support of his chief evidence got produced recent OPD slip, disability assessment proforma, recent x-ray at Ex.P12 to Ex.P14.
24. PW.2 has been cross-examined by respondent wherein PW.2 admitted that both bones have been operated and he is treated conservatively and fracture are united but he denied the suggestion that petitioner do not have any disability and not assessed disability as per guidelines of the Central Government and also denies the suggestion that the fracture are united, petitioner does not have any disability and does not need one more surgery to help the petitioner he is deposing falsely and assessed disability on the higher side. By considering injuries and also the disability given by doctor 1/3 of 16% of disability taken SCCH-22 15 MVC No.2754/2018 as whole body disability which is 5%. Hence 5% disability of whole body is taken.
25. PW.1 in her examination in chief has stated at the time of accident she was working at Sai Garments Exports Pvt Ltd as house keeping worker and earning a sum of Rs.12,000/- per month. Due to accidental injuries and disability not able work. With respect to the same, she has not produced any documents. Therefore considering the age, profession and the year of accident, I would take income of the petitioner notionally at Rs.9,000/- per month.
26. As per the petition the age of petitioner shown as 45 years but she has not produced documents to prove her age but on perusal of Ex.P7 which has been shown as 40 years but petitioner produced Ex.P11 Notarized copy of Aadhar card in which the date of birth of petitioner mentioned as 01.01.1970 the age of the petitioner shown as 48 years and in the existence of Ex.P11, the age of petitioner is taken as 48 years. The appropriate multiplier for the age group over 46 to 50 is '13'. Thus, the SCCH-22 16 MVC No.2754/2018 calculation for loss of her future earnings would works out to Rs.9,000/- X 12 X 13 X 5% =Rs.70,200/-. Therefore, I am going to award Rs.70,200/- under the head loss of future earnings due to disability.
27. Petitioner has stated that she has spent Rs.52,688/- towards medical expenses and Rs.40,000/- towards conveyance, nourishment and attendant charges. In respect of the same she got produced 17 medical bills at Ex.P10 for Rs.52,688/-. However taking into consideration of nature of injuries sustained, period of treatment, expenses incurred, it is just and proper to award Rs.52,688/- under the head medical expenses.
28. The petitioner contended that in spite of treatment she is not in normal condition and PW.2 doctor in his examination in chief specifically stated that the petitioner has to under to one more surgery for removal of implants and the estimated cost of the said procedure in his hospital would be Rs.30,000/-. By looking into injuries, in the existence of evidence of PW.2, by looking into the injuries sustained by the petitioner, I am going to SCCH-22 17 MVC No.2754/2018 award Rs.15,000/- under the head conveyance and Rs.15,000/- under the head of nourishment, nutritious food, Rs.15,000/- under the head of future medical expenses.
29. In all I am going to award compensation of Rs. 1,87,888/- by round off it to Rs.1,87,900/- under the following heads:
1. Pain and sufferings. Rs. 20,000/-
2. Loss of future earnings due to Rs. 70,200/-
disability.
3. Medical expenses. Rs. 52,688/-
4. Conveyance expenses Rs. 15,000/-
5. Nourishment and nutritious food Rs. 15,000/-
6. Under the head of future medical Rs. 15,000/-
treatment Rs. 1,87,888/-
By making total figure as Rs. 1,87,900/-
30. I have already discussed and opined that the accident occurred due to rash and negligent riding by the rider of the respondent no.1 Activa Honda bearing registration No. KA-01- HK-8026. Therefore respondent no.1 being owner of the SCCH-22 18 MVC No.2754/2018 offending vehicle insured with respondent no.2 are jointly and severally liable to pay the compensation. In view of the same respondent no.2 has to deposit the compensation amount before the tribunal. Hence I have answered Issue No.2 partly in the Affirmative.
ISSUE No.3:-
31. In view of the discussions made supra, I proceed to pass the following:
:: ORDER ::
The claim petition under Sec.166 of Motor Vehicles Act filed by the petitioner against respondents is hereby allowed in part with cost.
The petitioner is awarded total compensation of Rs.1,87,900/- (Rupees One Lakh Eighty Seven Thousand Nine Hundred only) with interest at the rate of 6% per annum from the date of petition till deposit of the amount in the Tribunal.
The respondent no.2 shall liable to pay compensation to the petitioner and it shall deposit the said amount in the Tribunal within 90 days from the date of this order.
Out of the above compensation after deposit of the same petitioner entitle to the entire amount in deposit to his E-SCCH-22 19 MVC No.2754/2018
payment on proper identification and verification.
The advocate fee is fixed at Rs.1000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 7 th day of April 2021) (SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.
:: ANNEXURE ::
LIST OF WITNESES EXAMINED ON BEHALF OF THE PETITIONER:
P.W.1 - Smt. Selvi
P.W.2 - Dr. Avinash Parthasarathy
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONER:
Ex.P.1 - FIR.
Ex.P.1a - Complaint
Ex.P.2 - Mahazar
Ex.P.3 - Sketch
Ex.P.4 - IMV Report
Ex.P.5 - Wound Certificates
Ex.P.6 - Charge Sheet
Ex.P.7 to 9 - Discharge summaries
Ex.P.10 - 17 Medical bills for total amount Rs.
52,688/-
SCCH-22 20 MVC No.2754/2018
Ex.P.11 - Notarized copy of Aadhar card
Ex.P.12 - Recent OP slip
Ex.P.13 - Disability assessment proforma
Ex.P.14 - Recent X-ray
LIST OF WITNESES EXAMINED ON BEHALF OF THE RESPONDENT:
R.W.1 - T.D.Nitin R.W.2 - Nagaraja.G.V
LIST OF WITNESES EXAMINED ON BEHALF OF THE RESPONDENT:
Ex.R.1 - Official Memorandum
Ex.R.2 - MLC
Ex.R.3 - Police Intimation
(SHAKUNTHALA.S)
XX A.S.C.J. & A.C.M.M.,
Bengaluru.