Bangalore District Court
Devaraj vs Sri.Ganesh Prabhu on 29 August, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 29th DAY OF AUGUST, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.2041/2012
Petitioner/s Devaraj, P.
S/o Late Prabhakar.D.
Aged about 24 years,
R/at No.15,
Sharadha Nilaya,
Railway Parallel Road,
Nehru Nagar,
Bengaluru - 560 020.
(By Pleader - Smt.T.S.Chandraprabha.)
V/s
Respondent/s 1.Sri.Ganesh Prabhu,
S/o Sri.Pundalika Prabhu,
Aged about 34 years,
R/at 2nd cross, 'B' Block,
Unity Apartment,
Badri Devastana,
Mangaluru.
(Deleted)
2.The Divisional Manager,
The New India Insurance
Co.Ltd.,
Mangaluru Branch,
Mangaluru.
Policy
No.42290/31/2010/368,
Valid upto 24.02.2012.
(Deleted)
(SCCH-15) 2 MVC.2041/2012
3. Sri.L.Jawahar Nazareth,
Vishal Pintos Lane,
Karangalpady,
Mangalore-3.
(By Pleader - Exparte.)
4.The Oriental Insurance
Company Ltd.,
B.C.Road, Bantwal Branch,
Satyavathi Complex main road,
Opp:Somayaji Industries,
B.C.Road,
Bantwal Taluk,
Mangaluru,
Karnataka - 574 211.
(By Pleader - Smt.T.R.Rajeshwari.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 23.04.2011 at about 2:00 p.m. he was traveling in Indica car bearing registration No.KA-20 N-5875 on NH-7 near Koppalangadi of Kapu Padu Village. At that time, the (SCCH-15) 3 MVC.2041/2012 driver of bus bearing registration No.KA-19 C-538 came with high speed in a rash and negligent manner from the opposite direction by over taking the vehicle i.e. the car bearing registration No.KA-20 V-7127 and dashed against their car.
4. Because of which, their car was badly damaged and he has sustained grievous injuries all over the body. Accident took place solely due to negligent driving of bus driver. Therefore, 1st respondent being the RC owner and 2nd respondent being the insurer of the bus are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
5. In response to due service of notices, 1st respondent remained exparte. 2nd respondent has appeared through its counsel and filed its statement of objections to the main petition denying the petition averments. It has specifically contended that on receipt of notice, it has verified the policy number furnished by petitioner in the petition and found that the said policy number is not at all issued by their insurance company. (SCCH-15) 4 MVC.2041/2012
b) It has also contended that subsequently on enquiry, it is found that the said policy was issued by Oriental Insurance Company Limited, Bantwal. Therefore, it is not necessary party to the proceedings. Without going through the necessary documents and making necessary enquiry, petitioner has made it as a party. Hence, prayed to dismiss the petition against with costs.
6. Subsequently, on going through the statement of objection of the 2nd respondent, petitioner got impleaded the actual RC owner and insurer of the bus i.e. 3rd and 4th respondents and got amended its pleading in that regard.
7. In response to the due service of notice, 3rd respondent remained exparte. 4th respondent has put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments. However, it has admitted the policy and its force on the date of accident.
b) But it has contended that its liability if any is subject to the terms and conditions of the policy such as (SCCH-15) 5 MVC.2041/2012 driving licence and vehicular documents. It has specifically contended that bus was not possessing valid FC and permit and the bus driver was not all having valid and effective driving licence which were in order and in force on the date of accident.
c) It has also called upon the petitioner to prove the driving licence and vehicular documents of the Indica car in which he was traveling as inmate. It has specifically contended that accident has taken place solely due to the negligent driving of car driver and there is collusion between two vehicles and the petitioner who was in the car as inmate is also liable for contributory negligence and prayed to dismiss the petition against it with costs.
8. On the above said pleadings of the parties, my learned predecessor in office i.e. the then presiding officer of SCCH-10 was pleased to frame the following issues.
1. Whether petitioner proves that he has sustained injuries in the motor vehicle accident that occurred on 23.04.2011 at about 2:00 p.m. on NH-17, Koppalangadi, Kaup Padu village, Udupi Taluk, within the jurisdiction of Kapu traffic police station on account of rash and negligent driving of the private bus (SCCH-15) 6 MVC.2041/2012 bearing registration No.KA-19 C-538 by its driver as alleged in the petition?
2. Whether petitioner is entitled to the compensation? If so, what is the quantum and from whom?
3. What order or award?
9. To prove the above said issues and to substantiate their respective contentions, petitioner has entered into witness box as PW-1. He has got examined clerical staff, KIMs hospital to cause production of medical records as PW-2 and professor and Head of the department in maxillofacial surgery, MCOD's Manipal, who has treated and assessed the disability as PW-3. Totally, got exhibited 13 documents and closed his side.
b) Despite of sufficient opportunities, 4th respondent did not let in its defence evidence. Therefore, defence evidence on behalf of 4th respondent is taken as nil.
c) In the meanwhile since it is found that 1st and 2nd respondents are not at all necessary parties for the adjudication of the present proceedings and they are mis- joinder in it, as per the order dated 18.07.2014, they are deleted from the present proceedings. (SCCH-15) 7 MVC.2041/2012
d) Heard arguments of the counsel for 2nd respondent. Despite of sufficient opportunities, counsel for petitioner did not submit the arguments. Hence, arguments on his behalf taken as not submitted and perused the record.
10. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.4,35,000/- together with interest at 8% p.a. from the date of petition till the realization in its entirety from 4th respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
11. ISSUE No.1:- Even as observed above, 2nd respondent put his appearance and filed its statement of objections to the main petition and 1st respondent remained exparte as observed above, subsequently as per order dated 18.07.2014, they were deleted from the proceedings. 3rd respondent remained exparte. (SCCH-15) 8 MVC.2041/2012
12. However, 4th respondent even has denied the petition averments, it has also contended that petitioner being inmate is also liable for contributory negligence. Therefore, absolutely there is no dispute with regard to the alleged accident; the date, time and place of accident; the vehicles involved in the accident and respective drivers of the vehicles at the time of accident. So, for the proper adjudication of this issue now the only point that remained for the due consideration of this Tribunal is the rash and negligent aspect.
13. To establish that as observed above, petitioner himself has entered into witness box as PW-1. He has filed his affidavit evidence wherein he has reiterated the petition averments. He has specifically deposed that accident took place because of the sole negligence of the bus driver. In his cross-examination, his chief evidence is denied by way of suggestions, which are in turn denied by him.
14. However it is elicited in his cross-examination that on the date of accident, he was proceeding from Manipal towards Mangaluru. The road at accident spot is (SCCH-15) 9 MVC.2041/2012 a national highway, straight road and it was clearly visible. Their car was at the speed around 60 kmph. He saw the bus at a distance around 200 meters and the bus was coming with high speed.
15. He has denied the suggestion that the bus was at the speed of around 35 to 40 kmph. He has admitted that the picture and position in the spot sketch at Ex.P-3 are true and correct. He has denied the suggestion that car was proceeding with high speed, since road was in bad condition, losing the control over car, car driver proceeded with high speed and dashed against the bus.
16. He has also denied the suggestion that since bus is a big vehicle when compared to car, with their undue influence and collusion with police, they falsely got implicated the bus.
17. At this stage, it is important to note that if the above observed cross-examination is taken into consideration, 4th respondent has not at all denied the police papers. On the other hand, it has got elicited that spot sketch at Ex.P-3 reveals true facts. (SCCH-15) 10 MVC.2041/2012
18. It has contended that road was in a bad condition, because of which, the car driver lost control over it, proceeded with high speed and dashed against the bus. If it is accepted that condition of the road was bad, then at best the judicial notice can be taken that in a bad conditioned road, one cannot move with high speed. So, the contention of 4th respondent that the car was at a high speed cannot be accepted. Hence, it appears that 4th respondent has taken the possible defence at all.
19. However to establish the above defence taken by 4th respondent in the cross-examination of petitioner, as observed above, despite of sufficient opportunities, 4th respondent has not let in any independent evidence. Therefore, there is nothing is there on record to disbelieve the oral evidence of petitioner with regard to the negligent driving of the bus driver resulting in the present accident.
20. Moreover, in support of his oral evidence, petitioner has produced police papers i.e. FIR with complaint, spot mahazar, spot sketch, MV report, (SCCH-15) 11 MVC.2041/2012 accident intimation and the charge sheet at Ex.P-1 to 6. All the police papers categorically reveal that the jurisdictional police have registered criminal case against the bus driver for the offences punishable under Sections 279 and 337 of IPC and after the investigation, they have charge sheeted the bus driver for the offences punishable under Sections 279 and 338 of IPC.
21. There is no specific cross-examination about police papers which are in clear consonance with the case of petitioner. On the other hand, as observed above, 4th respondent has placed its reliance on the spot sketch.
22. Moreover, there is presumption with regard to the police papers that they are prepared by the investigating officers while discharging their duties in investigation of a crime. Of course, the said presumption is rebuttal one. But no such rebuttal evidence is let in.
23. Therefore, if the entire evidence is taken into consideration, there is nothing on record to discard the oral evidence of petitioner supported by Ex.P-1 to 6. Hence, petitioner has successfully established that (SCCH-15) 12 MVC.2041/2012 accident is because of the negligent driving of the bus driver.
24. To establish the accidental injuries, petitioner with his oral evidence has also got adduced oral evidence of doctor who has treated and assessed the disability as PW-3, who has filed his affidavit evidence in support of the case of petitioner about petitioner suffering injuries in the present accident.
25. In addition, petitioner with his oral evidence has also produced wound certificate, treatment certificate, preliminary discharge note, prescriptions, hospital and medical bills at Ex.P-7 to 11 in his evidence and during evidence of PW-2 he has got produced inpatient file and outpatient file at Ex.P-12 and 13. All those medical records are in clear consonance with the case of petitioner about his suffering injuries in the present accident.
26. Moreover cross-examination for 4th respondent to the petitioner and doctor is taken into consideration, it is suggested that petitioner has suffered only simple injuries and there is no that much of auantum of (SCCH-15) 13 MVC.2041/2012 disability as stated by petitioner i.e. 25 to 30%. Therefore, even 2nd respondent has denied the nature of injuries and the treatment as well as quantum of disability and the medical expenditure, it has not at all denied the fact of petitioner suffering injuries in the accident.
27. Accordingly, petitioner with his oral evidence, supportive oral evidence of PW-3, the medical records observed above, has successfully proved that he has suffered injuries in the present accident. Hence, issue No.1 is answered in affirmative.
28. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 24 years. To establish that petitioner with his oral evidence has not produced any age proof document.
29. However it is in the police papers and in the medical records that he was aged 23 and 24 years respectively. There is no cross-examination by the other side about the age of petitioner mentioned in those (SCCH-15) 14 MVC.2041/2012 documents. Accordingly, age of petitioner is accepted as 24 years, for which proper multiplier applicable is 18.
30. It is the case of the petitioner that he is employee in a private company i.e., Ticketgenic India Private Ltd.,, Bellary road, Bengaluru and had income of Rs.25,000/- p.m. To establish that petitioner has not produced any supportive document.
31. However, in the charge sheet it is stated that he is an employee. There is no cross-examination by other side about avocation and income of the petitioner. But in view of no supportive evidence let in by petitioner, considering the age of petitioner and the cost of living as on the date of accident, it is thought just and proper to take notional income of the petitioner at Rs.6,000/- p.m.
32. It is the case of petitioner that in the accident, he has suffered grievous injuries as stated in the wound certificate. He took treatment in Kasturba hospital, Manipal as an inpatient. Still he is under treatment. He has incurred expenditure of Rs.2,00,000/- and he became permanently disabled because of accidental injuries.
(SCCH-15) 15 MVC.2041/2012
33. Petitioner has reiterated the above petition averments in his affidavit evidence. In his cross- examination, his chief evidence is denied by way of suggestions which are in turn denied by him. However, it is elicited in his cross-examination that he has lost conscious after the accident. When he regained the consciousness, he was in KMC hospital, Manipal. Dr.Abhay treated him in the said hospital. There is no impediment to examine the doctor who issued treatment certificate at Ex.P-8. His educational qualification is 10th.
34. PW-3 doctor has filed his affidavit evidence wherein he has stated that petitioner was admitted to their hospital on 23.04.2011 with the history of road traffic accident on the very day. Petitioner was diagnosed for profuse bleeding from the face. On thorough examination it was evident that there were large and deep facial lacerations and abrasions on the left side of the face extending to the temporal region.
35. It is also in his affidavit evidence that left alae of the nose was hanging with minimal attachments and (SCCH-15) 16 MVC.2041/2012 there was profuse bleeding from the same. In addition, there was also profuse bleeding from the Pinna and the helix of the left ear. Therefore, decision was made to shift the petitioner to operation theatre to control the bleeding and suture the lacerations as well as alae of the nose.
36. He has also stated in his affidavit evidence that in addition a simultaneous ENT consultation was given to manage avulsed alea of the left nose. Petitioner was taken up for surgery under general anesthesia; debridement was done and the left alae of the nose was sutured in layers using 3-0 vicoyl for the deep layers and 3-0 mersilk for the skin.
37. It is also in his affidavit evidence that with regard to the laceration of the left temporal and ear laceration, sutures were placed using 3-0 mersilk. Post surgery was improved with no significant complaints. He was discharged on 06.05.2011. He was on regular follow up treatment.
38. In his cross-examination it is elicited that after discharge on 06.05.2011, subsequently petitioner never visited him for follow up treatment. Even today basing on (SCCH-15) 17 MVC.2041/2012 the laceration over the ear and alae of nose in his opinion the disability is around 25 to 30%. There is guideline to assess the disability of maxillofacial region, but he is not sure about the guidelines. Basing on his experience he has assessed the approximate disability.
39. It is also in his cross-examination that he heard that at the time of admission, petitioner was working for some MNC company. He does not know the nature of work of petitioner. He has denied the suggestion that in order to help the petitioner he has assessed the disability at higher end.
40. If the documents produced by the petitioner are taken note off, Ex.P-7 is the true copy of wound certificate issued by KMC hospital, Manipal which reveals that petitioner was admitted to their hospital with the history of RTA on 23.04.2011 at 2:40 p.m. He was admitted on the very day and was diagnosed for multiple lacerations over the left alae of nose, contusion over the forehead which are grievous in nature.
41. Ex.P-8 is the treatment certificate issued by Dr.Kailesh Pujary, Associate Profession, ENT unit which (SCCH-15) 18 MVC.2041/2012 reveals that petitioner was admitted to their hospital on 23.04.2011 with the history of injuries on RTA. Petitioner had multiple facial injuries such as avulson injuries of left nasal alar region with the skin and cartilage cut, exposed and hanging medially with extension of laceration on to the columella through the vestibule of the left nose, blood clots in the nasal cavities, upper lip oedema and lacertated wound left ear pinna involving the upper part of helix extending to the preauricular region.
42. It is also there at Ex.P-8 that there was profuse bleeding from the left preauricular lacerated wounds and multiple facial abrasion and a few small lacerated wounds. Petitioner was treated surgically and on 14.05.2011 he was seen on follow up when the wounds found healed and there was crusting in the nasal vestibule. The left nasal ala wound had healed with a minimal deformity.
43. Ex.P-9 is the OP slip of KMC hospital; Ex.P-10 is prescriptions; Ex.P.12 is inpatient file and Ex.P-13 is outpatient file. All those documents are in corroboration (SCCH-15) 19 MVC.2041/2012 with each other. The contents of Ex.P-12 and 13 are in corroboration with Ex.P-7 and 8 observed above and also with the oral evidence of PW-3.
44. So, if the entire evidence let in by petitioner is taken into consideration, it can be safely held that petitioner has suffered severe injuries in the accident to the left face and he was treated surgically and was inpatient in the hospital from 23.04.2011 to 06.05.2011 i.e. for 14 days.
45. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-11, the hospital and medical bills totally 53 in nos. amounting to Rs.83,286.75/-. All the medical bills are of Kasturba hospital and they are computerized bills in the name of petitioner and they are of inpatient period.
46. There is no mention with regard to the corporate bill in the inpatient bill. Therefore, it appears that petitioner has borne entire medical expenditure. Pharmacy bills are not added in the inpatient bill. So, petitioner is entitled for the other pharmacy bills as well. (SCCH-15) 20 MVC.2041/2012
47. Moreover, if the nature of injuries suffered by the petitioner, inpatient period, nature of surgeries he has undergone, there is nothing to discard the medical expenditure. On the other hand, it appears that petitioner has incurred expenditure more than that. Hence, it is thought just and proper to award Rs.90,000/- towards medical expenses including the medical bills at Ex.P-11 series.
48. Of course it is in the evidence of PW-3 that petitioner is having disability around 25 to 30% because of the injuries he has suffered to the left face. But it is also in his cross-examination that too on observing the petitioner in the open Court that basing on the laceration over the ear and alae of nose, he is of opinion that disability is around 25 to 30%.
49. It is the case of petitioner that he was working as employee in a private company. He has not at all stated the nature of work. Therefore, in view of the admitted fact and the disability assessed by PW-3 is with regard to face, this Tribunal can take judicial notice that it will not affect the functional ability of petitioner. (SCCH-15) 21 MVC.2041/2012
50. However, so far as loss of amenities and for disfigurement, it is thought just and proper to take whole body disability at 8%. Ex.P-14 photographs are if gone through, it appears that they are taken at the time of operation. So, the severity of the injuries are reflected in the colour photographs which prima facie shows alae of the nose was hanging with minimal attachments.
51. Therefore, it is thought just and proper to award reasonable compensation for pain and sufferings as well as disfigurement and also some compensation for loss of marriage prospectus. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 60,000/-
Loss of income during laid up Rs. 30,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 30,000/-
other Incidental Charges and etc.
Medical Expenditure Rs. 90,000/-
Loss of Amenities and Comfort Rs. 50,000/-
For Disfigurement Rs. 50,000/-
For Marriage Prospectus Rs. 50,000/-
Permanent Physical Impairment Rs. 75,000/-
Total: Rs.4,35,000/-
52. Now, in respect of liability. Absolutely, there is no dispute between the parties with regard to the fact that (SCCH-15) 22 MVC.2041/2012 3rd respondent is the RC owner and 4th respondent is the insurer of the bus. But 4th respondent has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
53. However, it has not let in any evidence with regard to breach of policy conditions neither on driving licence nor on the vehicular documents. On the other hand, if the entire evidence on record is taken into consideration as per Ex.P-6, the jurisdictional police have charge sheeted the car driver for the offences punishable under Sections 279 and 338 of IPC.
54. There is no allegation with regard to any of the offences punishable under any of the provisions of MV Act. So, it appears that the bus driver did possess valid and effective driving licence and the bus was also had valid and effective documents which were in order and in force as on the date of accident. Hence, 3rd respondent being the RC owner of the bus is liable to pay the compensation and 4th respondent being the insurer is liable to indemnify the said liability. (SCCH-15) 23 MVC.2041/2012
55. Considering the cost of living on the date of accident, it is thought fit to award interest at 8% p.a. It is the prayer of 4th respondent that interest be ordered from the date of its impleadment and not from the date of petition since petitioner has not made it as party at the initial stage which is the mistake on the part of petitioner.
56. It is apparent on the face of record that on going through the statement of objections of 2nd respondent, 3rd and 4th respondents are made as parties to the proceedings; the present petition is filed on 23.04.2011 and the impleading application seeking impleadment of 3rd & 4th respondents is filed on 23.11.2012.
57. So, after 7 months from the date of filing of the petition, the application seeking impleadment of the actual RC owner and the insurer of the bus is filed. Hence, in the circumstances of the case, nothing is there to reject the prayer of 4th respondent. Hence, it is allowed.
58. In the result, petitioner is entitled for compensation of Rs.4,35,000/- together with interest at (SCCH-15) 24 MVC.2041/2012 8% p.a. from the date of application seeking impleadment of 3rd and 4th respondent to the petition i.e. from 23.11.2012 till the realization of the compensation in its entirety from 4th respondent. Issue No.2 is answered accordingly.
59. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.4,35,000/- together with interest at 8% p.a. from 23.11.2012 till the realization in its entirety from 4th respondent.
4th respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.1,50,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
(SCCH-15) 25 MVC.2041/2012Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 29th day of August, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Devaraj.P PW2: Naveen Marakala PW3: Dr.Abhay T.Kamath
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
- None -
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of Spot sketch, Ex.P4 : True copy of IMV report, Ex.P5 : True copy of Accident intimation, Ex.P6 : True copy of charge sheet, Ex.P7 : True copy of wound certificate Ex.P8 : Treatment certificate. Ex.P9 : Preliminary discharge note, Ex.P10 : Prescriptions (6 in nos.). Ex.P11 : Authorization letter, Ex.P12 : Inpatient file, Ex.P13 : Out patient file.(SCCH-15) 26 MVC.2041/2012
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
- Nil -
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.