Bangalore District Court
Srinivasan.K vs Geetha Rani P.A on 1 January, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCC-16)
PRESENT: SRI SATISH J.BALI,
B.Com, LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 1st DAY OF JANUARY 2016
MVC.No.864/2014
*****
PETITIONER: Srinivasan.K,
S/o Krishna Murthy,
Aged about 60 years
R/at No.17/4, East Link Road,
B-Street, Malleshwaran,
Bangalore-03.
(By Pleader, Sri G.Srinivasa)
Vs.
RESPONDENTS: 1. Geetha Rani P.A.
W/o.P.R.Aswathanarayana
Major, R/at No.60, III Main Road
Chamarajpet, Bangalore-18.
(RC owner of PIAGGIO-APE Van
bearing No. KA-05/D/1894)
(Exparte)
2. Bharti Axa General Ins.Co.Ltd.,
Pride Quadral, No.30, II Floor,
Hebbal, Bangalore-24.
(Insurer of PIAGGIO-APE Van
bearing No. KA-05/D/1894)
(By Pleader Sri. H.N.Kehshava
Prashanth)
MVC No.864/2014
SCH-16
2
JUDGMENT
The petitioner has filed this claim petition under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained by him in a road traffic accident dated 4-2-2014.
2. The brief facts of the petition averments are as under:
The petitioner on 4-2-2014, at about 11.45 a.m., was crossing the temple road, in front of BJP office, Bangalore, at that time, one PIAGGIO-APE-Delivery van bearing No. KA.05/ D/1894, without following the traffic rules and regulations, came at high speed, in a rash and negligent manner and dashed against the petitioner, due to the impact, he fell down and sustained grievous injuries. Immediately, after the accident, he was shifted to K.C.General hospital, Malleshwaram, Bangalore, there he took first-aid-treatment, then, he was shifted to Nimhans hospital. In Nimhans hospital, the CT scan of the petitioner was taken and confirmed that he has sustained injuries as stated in column No.11 of the petition. It is stated that the petitioner was discharged on 5-2-2014 with follow up treatment. It is stated by the petitioner that, after discharge from Nimhans hospital, MVC No.864/2014 SCH-16 3 the petitioner again admitted to Lalitha Helath Care Private Ltd., a Fortis Network hospital, Seshadripuram, Bangalore from 5-2-2014 till 8-2-2014. Thereafter words, CT scan was taken and confirmed that the petitioner sustained head injury as mentioned in Column No.11 of the petition.
3. It is stated that the petitioner has spent a sum of Rs.2,00,000/- towards treatment, medicines, conveyance , nourishment, food and attendants charges. The petitioner needs future medical treatment.
4. The petitioner further submitted that as on the date of accident, he was doing Real Estate business and earning Rs.20,000/-p.m. Due to the accidental injuries, petitioner is permanently disabled, lost his earning capacity, he is not doing any work and he is not in a position to do his day today activities.
5. It is stated that the accident was taken place due to the rash and negligent driving of offending vehicle by its driver. The Shadashivanagar traffic police have registered a case against the driver of the offending vehicle in Cr.No.11/2014, for the offence punishable under Sec.279 and 338 of IPC. The offending vehicle was insured with the MVC No.864/2014 SCH-16 4 respondent No.2 and the policy was in force, as on the date of accident. Hence, the respondent No.1, being the owner and respondent No.2 being insurer of the offending delivery van are jointly and severally liable to pay compensation to the petitioner. On all these grounds, petitioner prayed for awarding compensation of Rs.6,00,000/- to him.
6. In response to the notice, the respondents No.2 appeared before this Tribunal through their counsel and filed the written statement. Inspite of service of notice, the respondent No.1 did not appear before this Tribunal and hence he is placed exparte.
7. The respondent No.2 in his statement of objections has denied the accident, age, avocation, income and also medical expenses incurred by the petitioner. The respondent No.2 admits the issuance of policy in respect of vehicle bearing No.KA.05/D/1894. It is the specific defence of the respondent No.2 that as on the date of accident, the driver of the offending vehicle was not holding valid and effective DL to drive the insured vehicle. It is further contended that the owner of the offending vehicle has entrusted the vehicle to a person, who was not having valid and effective DL and MVC No.864/2014 SCH-16 5 thereby he violated the terms and conditions of the policy. It is further contended that the delivery van was used without having valid fitness certificate and it is against to the provisions of MV Act. The respondent No.2 further contended that, the offending vehicle was not at all involved in the accident and in collusion with the driver, owner and other authorities, a false petition was filed. It is submitted that the driver of the offending vehicle was driving the vehicle slowly, carefully and cautiously by observing all the traffic rules and regulations on proper side of the road. It is alleged that the accident occurred due to the sole negligence of the petitioner and hence, he is responsible for cause of the accident. The respondent No.2 further denied that the Sadashivanagar traffic police have registered a case against the driver of respondent No.1. On all these grounds, respondent No.2 prayed for dismissal of the petition with costs.
8. On the basis of the above pleadings, my predecessor in office has framed the following issues:
1. Whether the petitioner proves that he met with an RTA that occurred on 4-2-
2014 at about 11.45 a.m. in front of BJP office, Temple road Bangalore and the petitioner sustained injuries due to rash MVC No.864/2014 SCH-16 6 and negligent driving of Piaggio-Ape-
delivery van bearing No.KA.05/ D-1894?
2. Whether the petitioner is entitled for compensation? If so how much and from whom?
3. What order?
9. In order to prove the above issues, the petitioner examined before this Tribunal as P.W.1 and two witnesses on his behalf as PW.2 and 3 and got marked Ex.P.1 to P.16 documents. Inspite of granting sufficient opportunities, the respondent No.2 has not led any evidence on their behalf.
10. I have heard the arguments. The learned counsel for the petitioner in support of his arguments, has relied the following decisions:
1. ILR 20008 KART 2399 (Subodh subhas Kakade vs Appasabad jinnappa chougle and another)
2. ILR 2003 KAR 493 (Mallamma vs Balaji and others)
3. 2011 ACJ 1971 ( B.Kothandapani vs Tamil Nadu State Transport Corporation Ltd.,)
4. 2004 ACJ 1091 (A.Anandan vs Abdul Azeez and others)
5. 2010 ACJ 2717 ( Leela Gupta and others vs State of Uttar Pradesh and others) I have given my anxious consideration to the above said citations and keeping in view of the MVC No.864/2014 SCH-16 7 principles laid down in the said rulings, I have made the following discussions.
11. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
12. It is the burden of the petitioner to prove that he met with Road Traffic Accident on 4-2-2014 at about 11.45 a.m., in front of BJP office, Temple Road, Bangalore as stated in the petition. It is also for the petitioner to prove that he has sustained injuries as stated in the petition, due to the rash and negligent driving of PAGGIO-APE-Delivery van driver bearing No. KA.05/D/1894. The petitioner as PW-1 has deposed about the manner of accident, injuries sustained and also registration of criminal case against the driver of respondent No.1. PW-1 further deposed about his avocation and income. The affidavit filed by the petitioner is nothing but replica of the petition averments.
MVC No.864/2014 SCH-16 8
13. The petitioner examined Rajanna.S.K., Medical Records Technician of Nimhans hospital, as PW-2 and he has produced the case sheet of the petitioner as Ex.P.14.
14. The petitioner also examined the Pradeep Kumar .V Medical records in-charge of Lalitha Health care Pvt.Ltd., as PW-3 and he has produced the inpatient record of the petitioner as Ex.P.16. The inpatient records discloses that immediately after the accident, the petitioner was taken to K.C.General hospital and on the very same day, on reference, he was shifted to Nimhans hospital, wherein, he was treated and admitted in Lalitha Health care Pvt.Ltd (Fortis hospital). On examination of Ex.P.16, it reveals that the petitioner admitted to the Fortis hospital on 5-2-2014 and discharged on 8-2-2014. The learned counsel for the respondent No.2 argued that the petitioner has not sustained any fractures and he has not undergone any surgery. On careful perusal of cross examination of PW-1, it is clear that the petitioner has admitted that he has not undergone any surgery. But, Ex.P.16 reveals that the petitioner has sustained multiple fractures of right temporo-parietal bone, lateral wall of right orbit, postero-lateral wall of right maxillary sinus, MVC No.864/2014 SCH-16 9 anterior and medial wall of left maxillary sinus and roof and medial wall of left orbit. He has also sustained scalp haematoma measuring 15x17mm over left fontal convexity. Further, soft tissue swelling over bilateral presepatal region, right temporal and left temporo-parietal region.
15. The petitioner has produced the F.I.R., complaint, his statement, sketch, mahazar, IMV report, charge sheet, wound certificate, OP slip, OPD card, emergency case record and 3medical bills as per Ex.P.1 to P.12. On perusal of Ex.P.1-FIR, it is clear that on 4-2-2014, at about 11.45 a.m. the driver of the PIAGGIO-APE-Delivery van bearing No. KA.05/D/1894 dashed against the petitioner, for which, the Sadashivanagar traffic police have registered a case against the driver of offending vehicle in Cr.No.11/14 for the offence punishable under Sec.279 and 338 of IPC. The complaint was also lodged in this regard as per Ex.P.2. The petitioner has also given his statement before the police as per Ex.P.3, wherein, he clearly stated that the accident was taken place, due to the rash and negligent driving of the PIAGGIO-APE- Delivery van driver bearing No. KA.05/D/1894. The spot mahazar as per Ex.P.4 and spot sketch as per Ex.P.5 also MVC No.864/2014 SCH-16 10 reveals that the offending vehicle was involved in the accident. The IMV report as per Ex.P.6 and charge sheet as per Ex.P.7 suggests that the said vehicle was involved in the accident.
16. In the cross-examination, the learned counsel for the respondent No.2 has made an attempt to prove that the accident was taken place due to the sole negligence of the petitioner himself. In fact, the various suggestions have been made to the effect that, the accident was occurred due to the negligence of the petitioner. All efforts of the learned counsel for the respondent No.2 went in vain. The accuracy of the petitioner read with the above said exhibits at Exs.P.1 to P.7, makes it clear that the accident in question was occurred due to the sole negligence of the driver of the respondent No.1. It is to be noted that the respondent No.2 has not lead any contra evidence on their behalf, in order to disprove the case of the petitioner. Therefore, this tribunal is of the view that the accident in question was occurred due to the sole negligence of the driver of Piaggio-Ape-delivery van and hence, the petitioner has sustained injuries, thereby he has proved MVC No.864/2014 SCH-16 11 issue No.1. Accordingly, I answer the Issue No.1 in the affirmative.
ISSUE No.2:-
17. This issue relates to the quantum of compensation to be awarded to the petitioner and liability to pay the same. The wound certificate which is marked as Ex.P.8 reveals that the petitioner has sustained head injury, orbital and frontal bone fracture and scalp haematoma. The doctor has opined that the injuries 1 and 2 are grievous in nature. The 3rd injury is simple in nature. Further, the discharge summaries of the petitioner at Nimhans hospital as well as Fortis hospital reveals that the petitioner was inpatient for a period of 5days from 4-2-2014 to 8-2-2014. Ex.P.16 also reveals the multiple fractures as below:
1. Right temporo-parietal bone,
2. Lateral wall of right orbit,
3. Postero-lateral wall of right maxillary sinus,
4. Anterior and medial wall of left maxillary sinus
5. Roof and medial wall of left orbit.
The above said injuries are facial injuries. The doctor has opined that there is fracture of maxillary sinus both right MVC No.864/2014 SCH-16 12 and left, which is severe in nature. The doctor has also opined that there is fracture of lateral wall of right orbit and roof and medial wall of left orbit. The orbit bone is a socket bone, where eye ball is situated. The maxilla is an upper jaw and it is to be noted that the upper jaw is very important to chew. The doctor has also opined that there is scalp hematoma measuring 15x17cm over left frontal convexity. Looking to the injuries sustained by the petitioner, this tribunal is of the opinion that the petitioner has sustained severe head injury. Therefore, I feel it is just and proper to award a sum of Rs.40,000/- to the petitioner under the head pain and sufferings.
18. As the petitioner had been in the hospital as an inpatient for the period of 4 days from 5-2--2014 to 8-2-2014. Hence, I feel it is just and proper to award a sum of Rs.5,000/- to the petitioner towards attendant charges, extra nutritious food and transportation and conveyance charges.
19. The learned counsel for the petitioner has clearly submitted that even though the petitioner has incurred medical expenses to the tune of Rs. 33,158/-. Out of the said medical bills produced by the petitioner as per Ex.P.12, he MVC No.864/2014 SCH-16 13 has reimbursed the medical bills to the tune of Rs.27,841/- from TTK Health care. The remaining medical expenses of Rs.5,317/-,which can be rounded off to Rs.5,500/,was incurred by the petitioner. Hence, I feel it is just and proper to award a sum of Rs.5,500/- towards medical expenses.
20. As per Ex.P.16-discharge summary, the petitioner has sustained injuries of right temporo-parietal bone, lateral wall of right orbit, postero-lateral wall of right maxillary sinus, anterior and medial wall of left maxillary sinus and roof and medial wall of left orbit. The said injuries will not disturb the petitioner for doing any business. There is no any evidence to show that because of the injuries sustained by the petitioner, he was prevented from doing his business. Though, the petitioner has contended that he is doing Real Estate business and earning Rs.20,000/-p.m. To prove and establish the same, the petitioner has not produced any documents to that effect and he has not examined the doctor who treated him before this Tribunal to prove that he has sustained any disability, due to the accidental injuries. Hence, there is no question of assessing the loss of future income of the petitioner. Hence, no compensation is awarded MVC No.864/2014 SCH-16 14 under the head loss of future income due to permanent disability.
21. It is also to be noted that though the petitioner is not entitled for compensation under the head loss of future income due to permanent disability, but, the petitioner was inpatient for a period of 4days from 5-2-2014 to 8-2-2014 as per Ex.P.16. The petitioner might have prevented from doing any business for a period of three months, during the period of treatment. There is no evidence to show the actual income of the petitioner. The petitioner is aged about 62 years. Even if he is considered as coolie, his notional income has to be considered as Rs.6000/-p.m. Hence, I feel it is just and proper to award a sum of Rs.18,000/- to the petitioner as his three months income towards loss of income during laid up period.
22. It is to be noted that the medical records of the petitioner reveals that the petitioner is aged about 62 year as on the date of accident. PW-1 in his cross-examination has admitted that he has not undergone any surgery. Therefore, considering the age of the petitioner, this tribunal feels it is just and proper to award a sum of Rs.20,000/- towards loss MVC No.864/2014 SCH-16 15 of amenities and future happiness due to the injuries sustained by him, in the accident.
23. The petitioner has not examined the doctor before this tribunal and there is no record to show that the petitioner is in need of treatment, in future. Therefore, no compensation is awarded under the head future medical expenses. There are no grounds to award compensation to this petitioner under other heads. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs. 40,000/- 2 Attendant charges, Rs. 05,000/-
nutritious food expenses & transportation charges 3 Medical expenses Rs. 5,500/-
4 Loss of income during the Rs. 18,000/-
period of taking treatment 5 Loss of amenities and Rs. 20,000/-
happiness.
Total Rs. 88,500/-
In total, the petitioner is entitled for the compensation of Rs.88,500/-.
24. Interest:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest MVC No.864/2014 SCH-16 16 at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a.
25. Now, the question of liability to pay the compensation has to be determined. The respondent No.2, in its objections, admitted that the offending vehicle was insured with them and the insurance policy was in force on the date of accident. In the entire cross examination of PW-1, there was no suggestion as to the breach of conditions of the policy. There was no cross examination to the effect that the DL was MVC No.864/2014 SCH-16 17 not in force as on the date of accident. The learned counsel for the respondent No.2 during the course of his arguments has clearly submitted that the policy was in force as on the date of accident. It is the contention of the respondents that the accident was taken place due to the sole negligence of the petitioner as he tried to cross the road unmindfully. But there is no material evidence to substantiate the said aspect. The charge sheet filed against the driver of the offending vehicle goes to show that he was charge sheeted for the offence punishable under Sec.279 and 338 of IPC. The said charge sheet has not been challenged by the respondent No.2, which clearly indicates that the accident has taken place due to the rash and negligent driving of the goods van by its driver. Therefore, it is quite clear that the insurance policy, driving licence of the driver of respondent No.l was valid and was in force as on the date of accident. There is no violation of policy conditions by the driver of respondent No.1. Hence, it is the respondent No.2, who is liable and responsible to pay the compensation to the petitioner. Accordingly, I answer issue No.2 partly in the affirmative.
MVC No.864/2014 SCH-16 18 ISSUE No.3:-
26. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner U/s.166 of MV Act is partly allowed with costs.
The petitioner is awarded with the compensation of Rs.88,500/- (Rs. Eighty eight thousand five hundred only) with interest at the rate of 9% p.a. from the date of petition till its realization.
The respondent No.2 is liable to pay the compensation to the petitioner.
The respondent No.2 shall deposit the compensation amount awarded with interest within two months from the date of award.
After deposit of the said compensation amount awarded, entire amount with proportionate interest shall be released to the petitioner through A/c payee cheque on proper identification and verification, as he is aged about 62 years.
Advocate fee is fixed at Rs.500/- . Draw award accordingly.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court on this the 1st day of January 2016) (SATISH J.BALI), Member, MACT,Bangalore MVC No.864/2014 SCH-16 19 ANNEXURE Witnesses examined on behalf of petitioner:
PW.1 : Srinivasan.K
PW.2 : Rajanna.S
PW.3 : Pradeep Kumar.V
Documents marked on behalf of petitioner:
Ex.P.1 : FIR
Ex.P.2 : Complaint
Ex.P.3 : Statement
Ex.P.4 : Sketch
Ex.P.5 : Mahazar
Ex.P.6 : IMV report
Ex.P.7 : Charge sheet
Ex.P.8 : wound certificate
Ex.P.9 : O.P.slip
Ex.P.10 : OPD card
Ex.P.11 : 3medical bills
Ex.P.13 : Authorization letter
Ex.P.14 : case sheet
Ex.P.15 : Authorisation letter
Ex.P.16 : Inpatient record
Witnesses examined on behalf of respondents:
Nil Documents marked on behalf of the respondents:
Nil (SATISH J.BALI), Member, MACT Bangalore.