Bangalore District Court
Sri.Vijaya Kumara vs The Manager on 30 November, 2022
KABC020019312021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
(SCCH24)
DATED THIS THE 30th DAY OF NOVEMBER 2022
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
C/c XXII ADDL., SCJ & ACMM,
MEMBER MACT,
BENGALURU.
MVC No.473/2021
PETITIONER/S: Sri.Vijaya Kumara,
S/o Venkabarao,
Aged about 59 years,
R/at No.1, 3rd main road,
Srinivasanagara,
Sunkadakatte,
Near Anjaneya Temple,
Bangalore North,
Bangalore560 091.
(By Sri.B.K.Kumara,
Advocate.)
V/S
RESPONDENT/S: 1.The Manager,
New India Assurance Co.Ltd.,
Regional Office 22/B,
SCCH - 24 2 MVC 473/2021
Unity Building Annex,
Mission road/Lalbagh road,
Bangalore27.
(Insurer of offending vehicle scooter
bearing Reg.No.KA04JG4178)
(By Sri.K.P.Thrimurthy,
Advocate.)
2. Mr.Rajendra Kumar Givela,
S/o Durga Madaba Givela,
No.13, Acharya College road,
Near Gowtham Hostel,
Chikkabanavara, Shanthinagar,
Bangalore560 090.
(RC owner of offending vehicle scooter
bearing Reg.No.KA04JG4178)
(Exparte)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation for the injuries sustained by him in a road accident dated 20.12.2020.
2. The case of the Petitioner in brief is that, on 20.12.2020 at about 7.30 p.m., the petitioner was standing in order to cross on 100 feet main road, near Kaveri Bar SCCH - 24 3 MVC 473/2021 Peenya, Industrial Area carefully, cautiously and observing all the traffic rules, at that time the rider of the scooter bearing Reg.No.KA04JG4178 came at very speed in a rash and negligent manner so as to endangering to human life came from TVS cross Peenya towards FRI circle and dashed against him, as a result he fell down and sustained fracture of left leg femur and injuries over left leg great toe and other injuries and immediately he was taken to Kanva Sri Sai Hospital where treated as an inpatient and underwent surgery and internal fixation was inserted at fracture site and discharged with an advice.
3. The petitioner further stated that, at the time of accident he was hale and healthy and was working at Garments Factory as Maintenance and drawing a salary sum of Rs.20,000/ per month. Due to the accidental injuries, he has became permanent disabled and he is fully depending upon others for day to day activities and he has put to great hardship and mental agony. The SCCH - 24 4 MVC 473/2021 Rajajinagar Traffic Police have registered a criminal case against the rider of the scooter bearing Reg.No.KA04JG 4178 in Cr.No.45/2020 u/Sec.279 and 337 of IPC and after investigation, the said police have filed chargesheet against him. Hence, the 1st respondent being the insurer and the 2nd respondent is the RC owner of the offending vehicle are jointly and severally liable to pay compensation to him.
4. In response to service of notice issued by this court/Tribunal, the Respondent No.1 has appeared and filed written statement. In spite of due service of summons, the Respondent No.2 did not appear and hence placed exparte.
5. The Respondent No.1 in the written statement has denied the averments made in the paragraphs 1 to 22 of the petition as false and also denied that the accident was solely due to the rash and negligent riding of Scooter SCCH - 24 5 MVC 473/2021 bearing No.KA04JG4178 and also denied that the driver of the scooter was not holding valid and effective driving license at the time of the alleged accident. Further submitted that there is non compliance of Section 134(c) and Section 158(6) of M.V. Act. Therefore, prayed for dismissal of the petition against them.
6. On the basis of the above pleadings the following issues are framed:
ISSUES
1. Whether the Petitioner proves that, he met with a Road Traffic accident on 20.12.2020 at about 7.30 p.m., on Industrial Area, 100 feet main road, Near Kaveri Bar, Peenya and sustained grievous injuries due to the rash and negligent riding of the rider of Scooter bearing Reg.No.KA04JG 4178?
2. Whether the Petitioner proves that he is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?SCCH - 24 6 MVC 473/2021
7. The Petitioner in order to prove his case, he has examined himself as PW.1 and produced documents as per Exs.P.1 to P.15. Dr.Chidananda K.J.C.Orthopedic surgeon and Assistant professor Orthopedics at Sanjay Gandhi Institute and Trauma and Orthopedics, is examined as PW.2 and produced documents as per Exs.P.16 and P.17 and also examined D.Srinivasiah Medical record Clerk at Sapthagiri Hospital as PW.3 and produced documents as per Exs.P.18 to P.20. On the other side the Respondent No.1 did not examine any witness nor produced any documents on their behalf.
8. Heard the arguments of the learned counsel for both the parties and perused the materials on record.
9. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: SCCH - 24 7 MVC 473/2021 Issue No.1: Partly in the affirmative, Issue No.2: Partly in the affirmative, Issue No.3: As per the final order, for the following: REASONS
10. Issue No.1: The Petitioner in order to prove that the accident was occurred due to the actionable negligence on the part of the driver of the car bearing Reg.No.KA04JG4178 has examined himself as PW.1 and produced 8 documents as per Exs.P.1 to P.8 and P.9. He has specifically stated in his evidence that, he was standing in order to cross on 100 feet main road, near Kaveri Bar Peenya, Industrial Area carefully, cautiously and observing all the traffic rules, at that time the rider of the scooter bearing Reg.No.KA04JG 4178 came at very speed in a rash and negligent manner so as to endangering to human life came from TVS cross Peenya towards FRI circle and dashed against him and caused accident. On the other side, the Respondent No.2 SCCH - 24 8 MVC 473/2021 have denied that the alleged accident occurred due to rash and negligence of the rider of the offending vehicle. In support of their defence the Respondent No.2 has not examined any witness nor produced any documents. In the crossexamination of the PW.1 it is elicited that there was no signal at the spot where he was trying to cross the road, there was no zebra crossing either at the spot, he cannot examine the eye witness Mr.Sunil Kumar, as per the spot sketch the accident occurred in the middle of the road and injuries sustained by him shown in the wound certificate are not tallying which he deposed in his chiefexamination affidavit.
11. The Ex.P.2/first information lodged on 20.12.2020 stating that while he was crossing the road at 07.30 p.m., near Kavari Bar at 100 feet road at that time the rider of scooter bearing Reg.KA04JG4178 ridden with rash and negligent manner and dashed against him and caused the accident. The Ex.P4/spot sketch shows that the accident SCCH - 24 9 MVC 473/2021 occurred in the middle of the road, wherein there was no zebra crossing facility. The Ex.P8/wound certificate also shows that the petitioner sustained injuries in an accident. The MLC produced at Ex.P18 also shows brief history as "Alleged history of RTA when patient was a pedestrian and hit by a two wheeler at around 8.00 p.m., on 20.12.2020 near Kantirava stadium". From the above evidence it is clear that the accident occurred when the petitioner was crossing the road where there was no zebra crossing. No doubt the respondent No.1 has not lead any evidence but when the documents of the petitioner and his evidence itself focus on the negligence on the part of the petitioner then there is no need for the separate evidence as the respondent No.1 can take his defence and prove it with the documents which the petitioner relies for his case and in this case also the same is established by the respondent No.1 from the own evidence of the petitioner. Further, it is the duty of the pedestrians to observe the vehicle SCCH - 24 10 MVC 473/2021 movements on the road and to cross the road in the zebra crossing or where the facility provided for the pedestrian to cross the road but in this case the petitioner as per Ex.P4 was crossing the road where there was no any zebra crossing and from this it is clear that there was negligence on the part of the petitioner which can be assessed at 20%.
12. Apart from the above, the Petitioner has produced the documents such as FIR in Cr.No.0045/2020 of Rajajinagar Police Station, complaint, spot mahazar, spot sketch, IMV report, notice issued u/S 133 of IMV Act, reply to the above notice and chargesheet as per Exs.P.1 to P.7 and P.8. Upon on appreciating these all documents it is clear that there was some negligence on the part of the petitioner which also lead to the accident as discussed above. Under these circumstances, this court is of the opinion that the rider of the offending vehicle ridden it with rash or negligent manner alongwith some contributory negligence on the part of the petitioner which lead to the SCCH - 24 11 MVC 473/2021 accident in which the petitioner sustained injuries. Accordingly, issue No.1 is held partly in the affirmative.
13. ISSUE NO.2 : The Petitioner has further averred that, on account of accident, he cannot walk and stand for a long period of time, cannot lift weight, cannot use Indian type of toilet, cannot climb or down stairs, cannot sleep in one angle, cannot fold his left leg, cannot sit crossed leg, cannot sit on the floor in one angle for ten minutes continuously and he cannot do any manual work and cannot bend his body and get severe pain in the fracture site and hence he is unable to do his earlier work/occupation. The Petitioner in this regard has entered into witness box and deposed that due to the accidental injuries, he is suffering from permanent disability. Apart from that, he has produced the Ex.P.8/wound certificate and as per it, the petitioner has sustained tenderness and swelling of left thigh, xray showed shaft of left femur fracture, Bruise and abrasion on SCCH - 24 12 MVC 473/2021 left side of head in fronto temporal region, laceration on left greater toe measuring 2x1 cm, abrasion on external aspect of left forearm, the doctor opined that injury No.1 is grievous in nature and injury No.2 to 4 are simple in nature. The petitioner has got examined Dr.Chidanand K.J.C. as PW.2 and also examined D.Srinivasaiah as PW.3. This court while considering the Issue No.1 has already come to the conclusion that the accident occurred due to the rash or negligent riding of the rider of scooter alongwith contributory negligence on the part of the petitioner. Therefore, the Petitioner is entitled for compensation from the Respondents.
DISABILITY:-
14. In the chiefexamination, the PW.2 has deposed that, a patient by name Vijaykumar aged about 61 years came to their hospital on 22.04.2022 with alleged history of RTA according to records he sustained shaft of left femur fracture and D9 vertebral body fracture and underwent SCCH - 24 13 MVC 473/2021 treatment in form of CRIF with IMIL nail for left femur on 30.12.2020 and conservative management for D9 vertebral fracture in Sapthagiri Hospital, Bangalore. PW.2 further deposed that on 22.04.2022 the petitioner came for disability assessment and he found disability for range of movements of left hip and left knee and restricted, Healed scar mark over hip, Quadriceps wasting is seen, pain in back on doing normal routine activities, associated with pain on movements knee hip and ankle and daily activities cross leg sitting, squatting for using Indian toilets were found to be difficulty in left limb and xray of left femur fracture united with implant in situ and the petitioner has got permanent physical disability for lower limb and spine to the whole body is at 21% which is permanent in nature and patient will have some difficulty in doing daily routine activities and undergo one more surgery in the form of implant removal which may cost Rs.20,000/. In the cross examination of PW.2 it is elicited that he has not treated SCCH - 24 14 MVC 473/2021 the petitioner, he has only seen the discharge summary issued by Sapthagiri hospital but not seen the wound certificate, the second injury mentioned by him is not forthcoming in Ex.P.8 wound certificate, he has also considered the said injury for assessing the disability, the first fracture is united with implants in situ and he has not seen the follow up treatment records of the petitioner. The second injury deposed by the PW.2 in his chief examination which is D9 vertebral body fracture is not mentioned in Ex.P.8/wound certificate and therefore it is clear that the petitioner only sustained first injury in the accident which is grievous in nature and other three simple injuries as mentioned in Ex.P.8 and hence the second injury cannot be considered for considering the percentage of disability. The PW.3 D.Srinivasiah Medical record clerk at Sapthagiri Hospital is examined as PW.3 and produced MLC register extract, authorization letter and one inpatient case sheet as per Exs.P18 to 20. Having regard to the nature of injuries SCCH - 24 15 MVC 473/2021 sustained by the petitioner, the period of treatment that he has undergone and his age the functional disability of the petitioner is considered at 10% to the whole body.
Monthly income:
15. The Petitioner has stated that he was working at Garments factory as maintenance and drawing salary a sum of Rs.20,000/ per month. In this regard, the petitioner has produced his bank passbooks as per Ex.P.11. In support of this the petitioner has not produced any documents such as Salary slips, wage register etc., and also not examined his employer.
Therefore, the version of the Petitioner that he was getting salary a sum of Rs.20,000/ per month is not acceptable. Therefore, the notional income needs to be considered. At the time of accident the Petitioner was aged about 59 years as could be make out from Ex.P.10/Aadhar card of the petitioner. The accident took place in the year 2020. In absence of specific evidence for income, therefore by taking SCCH - 24 16 MVC 473/2021 judicial notice of the notified notional income chart approved by the KSLSA the monthly notional income of the petitioner is considered as Rs.14,500/ per month. As such, Petitioner is entitled for the following compensation:
i) PAIN AND SUFFERING: After the accident, the Petitioner was taken to Sapthagiri Hospital, Bangalore, wherein admitted as an in patient from 20.12.2020 to 11.01.2021 for 23 days as per Ex.P.20/case sheet. As per case sheet diagnosed and underwent surgery. Therefore, considering the nature of injuries, duration of treatment and underwent surgery, the Petitioner is awarded a sum of Rs.45,000/ under this head.
ii) LOSS OF INCOME DURING LAID UP PERIOD:. As mentioned above the petitioner has sustained grievous injuries. After the accident, the Petitioner was taken treatment in the above mentioned hospital. SCCH - 24 17 MVC 473/2021 Therefore, considering the nature of injury and the duration of treatment and underwent surgery it can be said that the Petitioner has required at least two months time for recovering from the injury sustained by him. Hence, he is entitled for a sum of Rs.29,000/ under this head.
iii) MEDICAL EXPENSES: The Petitioner has pleaded and deposed that he has spent a sum of Rs.30,000/ towards hospitalization and medicines. In this regard, he has produced 4 medical bills for a sum of Rs.2,663/ as per Ex.P.12. No contrary evidence is brought on record to disprove the said medical bills. Therefore, the petitioner is entitled for a sum of Rs.2,663/ under the head of Medical Expenses.
iv) LOSS OF FUTURE INCOME: In so far as age of the Petitioner is concerned, the Aadhar card of the petitioner is produced as per Ex.P10. As per this document his age was 59 years as on the date of SCCH - 24 18 MVC 473/2021 accident. Therefore, as on the date of the accident the Petitioner's age is considered as 59 years. As per the dictum in Sarala Verma's case the appropriate multiplier applicable to his age is 9. Therefore, the Petitioner is entitled a sum of Rs.1,56,600/ (Rs.14,500/ x 12 x 9 x 10%= Rs.1,56,600/) under this head.
(v) LOSS OF FUTURE AMENITIES AND HAPPINESS: The Petitioner was aged about 59 years at the time of accident. He has sustained grievous injury and as per consideration of this Tribunal, he is suffering from 10% permanent disability. The Petitioner has to suffer this disability throughout his life. Because of this he will have to lose some amenities and comforts. Therefore, considering the age of the petitioner and nature of injury that suffered a sum of Rs.17,000/ is awarded under this head.
SCCH - 24 19 MVC 473/2021
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner took treatment in Sapthagiri Hospital, Bangalore, wherein admitted as an in patient for 23 days and underwent surgeries. Therefore, as during this period he must have spent considerable amount on his conveyance, attendant charges, food and nourishment etc.. Therefore, the Petitioner is entitled for a sum of Rs.17,000/ under this head.
vii) FUTURE MEDICAL EXPENSES: As per the version of the PW.2, the Petitioner need another surgery for removal of implants which cost is estimated around Rs.20,000/. As the petitioner has not produced medical bills and hence it appears that the petitioner got reimbursed them. Therefore, looking to the earlier treatment cost and nature of injuries and cross examination of PW.2, it appears it would be justifiable if an amount of Rs.5,000/ is awarded to the Petitioner SCCH - 24 20 MVC 473/2021 under this head. Therefore the Petitioner is awarded a sum of Rs.5,000/ under this head.
16. The Petitioner is entitled compensation under the following heads:
1. Pain & suffering Rs.45,000/
2. Loss of income during laid Rs.29,000/ up period
3. Medical expenses Rs.2,663/
4. Loss of future income Rs.1,56,600/
5. Loss of future amenities Rs.17,000/ and happiness
6. Attendant, conveyance, food Rs.17,000/ and nourishment charges
7. Future medical expenses Rs.5,000/ TOTAL Rs.2,72,263/ The total compensation comes to Rs.2,72,263/and 20% negligence of the petitioner needs to be deducted in the said amount and if it is done then the remaining compensation amount comes to Rs.2,17,811/ (Rs.2,72,263/ Rs.54,452/) and if it is rounded off it comes to Rs.2,17,900/. Therefore, the compensation of a sum of Rs.2,17,900/ is awarded to the petitioner. SCCH - 24 21 MVC 473/2021
17. The respondent No.1 has failed to prove their defence. The existence of policy is admitted and therefore the respondents being the owner and the insurer are jointly and severally liable to pay compensation to the petitioner. However, as the policy existed hence the insurer is to indemnify the insured respondent No.2 and to pay compensation to the petitioner. The Petitioner has claimed a sum of Rs.10,00,000/ but he is entitled only for a sum of Rs.2,17,900/ with interest @ 6% per annum from the date of petition till the date of deposit. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
18. Issue No.3: For the reasons and discussions made above and findings to the above issues, this Tribunal proceeds to pass the following: SCCH - 24 22 MVC 473/2021 ORDER The petition is allowed in part with cost.
The Petitioner is entitled for
compensation of Rs.2,17,900/ (Rupees Two
Lakhs Seventeen Thousand and Nine
Hundred only) alongwith interest @ 6% p.a. from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
The Respondent No.1Insurer of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
SCCH - 24 23 MVC 473/2021
On deposit of compensation and interest, entire amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 30th day of November 2022.) (Miss.B.T.ANNAPOORNESHWARI) C/c XXII Addl., SCJ & ACMM Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Sri.Vijaya Kumara
PW.2 Dr.Chidanand K.J.C.,
PW.3 D.Srinivasiah
SCCH - 24 24 MVC 473/2021
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR Ex.P.2 True copy of Complaint Ex.P.3 True copy of Spot mahazar Ex.P.4 True copy of Spot Sketch Ex.P.5 True copy of IMV report Ex.P.6 True copy of Notice issued u/S 133 of IMV Act Ex.P.7 True copy of Reply to the above notice Ex.P.8 True copy of Wound certificate Ex.P.9 True copy of Chargesheet Ex.P.10 Notarized copy of my Aadhar card (Original compared and returned) Ex.P.11 My bank passbooks (2 in nos) Ex.P.12 4 Medical bills amounting to Rs.2,663/ in total Ex.P.13 Medical report (2 in No's) Ex.P.14 Medical prescriptions (2 in no's) Ex.P.15 Xrays (14 in no's) Ex.P.16 Clinical note Ex.P.17 Two xrays Ex.P.18 True copy of MLC register extract Ex.P.19 Authorization letter Ex.P.20 One inpatient case sheet SCCH - 24 25 MVC 473/2021
List of Witnesses examined for Respondent/s:
- NIL List of documents exhibited for Respondent:
- NIL (Miss B.T.ANNAPOORNESHWARI) C/c XXII Addl. SCJ & ACMM Bengaluru.SCCH - 24 26 MVC 473/2021
Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part with cost.
The Petitioner is entitled for
compensation of Rs.2,17,900/ (Rupees Two
Lakhs Seventeen Thousand and Nine
Hundred only) alongwith interest @ 6% p.a. SCCH - 24 27 MVC 473/2021 from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
The Respondent No.1Insurer of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
On deposit of compensation and interest, entire amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Miss B.T.ANNAPOORNESHWARI) C/c XXII Addl. SCJ & ACMM Bengaluru.SCCH - 24 28 MVC 473/2021
AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY (SCCH24) MVC No.473/2021 PETITIONER/S: Sri.Vijaya Kumara, S/o Venkabarao, Aged about 59 years, R/at No.1, 3rd main road, Srinivasanagara, Sunkadakatte, Near Anjaneya Temple, Bangalore North, Bangalore560 091.
(By Sri.B.K.Kumara,
Advocate.)
V/S
RESPONDENT/S: 1.The Manager,
New India Assurance Co.Ltd.,
Regional Office 22/B,
Unity Building Annex,
Mission road/Lalbagh road,
Bangalore27.
(Insurer of offending vehicle scooter bearing Reg.No.KA04JG4178) (By Sri.K.P.Thrimurthy, Advocate.)
2. Mr.Rajendra Kumar Givela, S/o Durga Madaba Givela, No.13, Acharya College road, SCCH - 24 29 MVC 473/2021 Near Gowtham Hostel, Chikkabanavara, Shanthinagar, Bangalore560 090.
(RC owner of offending vehicle scooter bearing Reg.No.KA04JG4178) (Exparte) WHEREAS, this petition filed on by the Petitioner/s above named U/sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up on for final disposal before Miss. B.T.Annapoorneshwari, C/c XXII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
SCCH - 24 30 MVC 473/2021
ORDER The petition is allowed in part with cost.
The Petitioner is entitled for
compensation of Rs.2,17,900/ (Rupees Two
Lakhs Seventeen Thousand and Nine
Hundred only) alongwith interest @ 6% p.a. from the date of petition till the date of depositing the amount. The Respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
The Respondent No.1Insurer of the offending vehicle shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this Judgment.
SCCH - 24 31 MVC 473/2021
On deposit of compensation and interest, entire amount shall be released in favour of the Petitioner by way of epayment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
Given under my hand and seal of the Court this 30th day of November 2022.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE.
SCCH - 24 32 MVC 473/2021Memorandum of costs incurred in this case.
By the __________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs.
_________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR