Bangalore District Court
Vikasarao Nalawade. V vs The Branch Manager on 10 March, 2016
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
PRESENT: Smt. HIREMATH SHOBHARANI BABAYYA.
B.Com.LL.B.(Spl.)
XXII Additional Small Causes Judge &
XX A.C.M.M.,& Member MACT, Bengaluru.
DATED: This the 10th day of March, 2016.
M.V.C.No.1702/2015
Petitioner Vikasarao Nalawade. V,
S/o R. Vittal Rao,
Aged 24 years,
Presently Residing at
No. 118, 3rd Cross, Road,
Shivananda Nagar,
Nagarabhavi Road,
Bengaluru-560 072.
(Rept:By Sri.R. Shiva Kumar.
Advocate- Bengaluru).
- Versus -
Respondents 1. The Branch Manager,
The Oriental Insurance
Company Limited,
No.705, Suvarna Towers,
1st Floor, Near Vijayanagar
BDA Complex,
Govindraj Nagar, Vijayanagar,
Bangalore-560 040.
2 SCCH-24.
M.V.C.1702/2015
Policy No. 421900/31/2015/14455
Valid From 15-02-2015 to 14-02-2016
(Insurer)
2. Mr. K.M Chethan,
S/o. Mruthunjaya K.M,
No.10, Chetan Nilaya,
4th 'A' Main Road,
B Cross, Kalyan Nagar,
Nagarabhavi Main Road,
Bangalore-560 072.
(Insured/Owner)
(Res.1:By Sri.B.R.Venkatesh Kamath-
Advocate- Bengaluru.
Res.2: Ex-parte).
XXII A.S.C.J., & XX A.C.M.M.,
& MEMBER,M.A.C.T.,
BENGALURU.
3 SCCH-24.
M.V.C.1702/2015
JUDGEMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act claiming the compensation on account of the injuries sustained by him in the Motor Vehicles Accident.
2. The brief facts projected by the petitioner is as under:
That, on 01.04.2015 at about 04.55 P.M the petitioner was riding the motor cycle bearing Reg. No. KA-02-JB-0803 on Mudalapalya, Bengaluru, carefully and cautiously observing all the traffic rules and regulations. When he reached near BBMP office, Canara Bank Colony, Mudalpalya, Bengaluru, at that time all of a sudden the rider of the motor cycle bearing Reg. No. KA-41-Q-3171 rode the vehicle at high speed in a rash and negligent manner, recklessly and mindlessly, endangering human life neglecting all the traffic rules and regulations, without blowing horn or giving any 4 SCCH-24.
M.V.C.1702/2015 signal, came from Mudalapalya towards Nagarabhavi side, lost control of his motor cycle and dashed against the petitioner's riding motor cycle. Due to impact the petitioner fell down from the motor cycle and sustained injuries.
3. It is stated that, immediately the petitioner was shifted to Shridevi Hospital, Bangalore for first aid treatment. Thereafter, he was shifted to Essential Hospital, Bangalore for better treatment. Wherein, the petitioner admitted as an inpatient from 02-04-2015 to 04-04-2015. During the hospitalization after all investigation found the following accidental injuries. 1 ) Fracture both bones Left Forearm. 2) Pain in Left Forearm and Right Leg. During the course of treatment Open Reduction with Internal fixation Left and ulna with plate and screw was done on 02-04-2015. He took operation and inpatient treatment for the accidental injuries in the said hospital. Even today he is taking 5 SCCH-24.
M.V.C.1702/2015 treatment as per doctor advice. He spent towards treatment, medicines, nourishment and conveyance.
4. It is stated that, at the time of accident, the petitioner was working as an Assistant Professor and earning a sum of Rs.24,000/- per month. Due to the accidental injuries he was not able to do the said job regularly. So he lost income. It is stated that, the accident in question is due to rash and negligent riding of the rider of the motor cycle bearing Reg. No.KA-41-Q- 3171. Hence, respondents of 1 and 2 being the owner and the insurer of the motor cycle are jointly and severally liable for the payment of compensation. For all these reasons, the petitioner has prayed to award the compensation with interest and costs.
5. In response to the notice, respondent No.1 has appeared through his counsel before the Tribunal and has filed the detailed written statement. Inspite of 6 SCCH-24.
M.V.C.1702/2015 service of notice, respondent No.2 has remained absent. Hence, the respondent No.2 has been placed as ex- parte.
6. The respondent No.1 has contended that, the petition is not maintainable either in law or on facts. The 1st respondent has denied the entire allegations made in the claim petition and put the petitioner to strict proof of the same. The 1st respondent has admitted the issuance of insurance policy in respect of the motor cycle bearing Reg.No.KA-41-Q-3171. However, the liability of this respondent, if any is subject to terms and conditions of the policy. The 1st respondent has contended that, the person who was driving the motor cycle bearing Reg.No.KA-41-Q-3171, had no valid and effective driving licence at all either temporary or permanent as on the date of the accident. It is contended that, the motor cycle bearing Reg.No. KA-41-Q-3171 was not involved in the accident. The 1st 7 SCCH-24.
M.V.C.1702/2015 respondent contended that, the claim made by the petitioner is highly exaggerated and illegal. For all these reasons, prayed to dismiss the claim petition against the 1st respondent.
7. On the basis of the above pleadings and the rival contentions of both the parties, the following issues are framed:-
ISSUES
1. Whether the petitioner proves that, he has sustained grievous injuries in the Road Traffic Accident that occurred on 01.04.2015 at about 4.55 p.m, near B.B.M.P. Office, Canara Bank Colony, Mudalapalya, Bengaluru City, due to rash and negligent riding of the motor cycle bearing Reg.No.KA-41-Q-3171 by it's rider as alleged ?
2. Whether the petitioner is entitled for the compensation as claimed ? If so, to what amount and from whom ?
3. What order or award ?
8. In order to substantiate the case made out by the petitioner, the petitioner got himself examined as 8 SCCH-24.
M.V.C.1702/2015 P.W.1 and one witness has been examined as P.W.2 and got marked Ex.P.1 to Ex.P.18. Thereafter, the petitioner closed his side evidence.
9. In order to rebut the evidence so placed on record by the petitioner, the respondents have not adduced any evidence. Thereafter, the respondents side evidence closed.
10. Heard the arguments. The learned counsel for the petitioner has relied on the following decisions.
1. 2012 ACJ 191, between Laxman Vs. Divisional Manager, Oriental Insurance Co.Ltd., and Another.
2. 2004 ILR 2471, between K. Narasimha Murthy Vs. The Manager, M/s Oriental Insurance Co.Ltd., Bangalore and Another.
3. 2011 AIR SCW 2609, between Nagarajappa Vs. Divisional Manager, Oriental Insurance Co.Ltd.
4. 2005 ACJ 644, between M.V.Chowappa Vs. Mohan Breweries & Distilleries Ltd., and another.
5. 2008 ACJ 53, between Pravat 9 SCCH-24.
M.V.C.1702/2015
Chandra Maity Vs. Oriental
Insurance Co.Ltd., and Others.
6. 2009 ACJ 1298, between Sarla
Verma and Others Vs. Delhi
Transport Corporation and
Another.
I have gone through the above cited decision and perused the materials placed on record.
11. My findings on the above issues are as under:
Issue No.1 - In the Affirmative.
Issue No.3 - Partly in the Affirmative.
The petitioner is entitled
for a total compensation
of Rs.1,55,552/-, from
respondent No1 and 2.
Issue No.3 - As per final order,
for the following :
REASONS
Issue No.1:
12. It is the case of the petitioner that,
01.04.2015 at about 04.55 P.M the petitioner was riding the motor cycle bearing Reg.No.KA-02-JB-0803 on Mudalapalya, Bengaluru, carefully and cautiously 10 SCCH-24.
M.V.C.1702/2015 observing all the traffic rules and regulations. When he reached near BBMP office, Canara Bank Colony, Mudalpalya, Bengaluru, at that time all of a sudden the rider of the motor cycle bearing Reg. No. KA-41-Q-3171 rode the vehicle at high speed in a rash and negligent manner, recklessly and mindlessly, endangering human life neglecting all the traffic rules and regulations, without blowing horn or giving any signal, came from Mudalapalya towards Nagarabhavi side, lost control of his motor cycle and dashed against the petitioner riding motor cycle. Due to impact the petitioner fell down from the motor cycle and sustained injuries.
13. In order to prove the actionable negligence, the petitioner himself entered into the witness box and filed affidavit in lieu of examination-in-chief and got examined as P.W.1. He reiterates the averments and the allegations made in the claim petition. He has deposed that, the accident occurred due to rash and negligent 11 SCCH-24.
M.V.C.1702/2015 riding of the motor cycle bearing Reg.No.KA-41-Q-3171 by it's rider. During the course of cross-examination, P.W.1 has denied the suggestion that, the accident was not occurred due to negligence on the part of the rider of the TVS Apache vehicle.
14. The petitioner has relied upon various police documents produced at Ex.P.1 to Ex.P.7. Out of which, Ex.P.1, is copy of the First Information Report, Ex.P.2, is copy of the Complaint, Ex.P.3, is copy of the Spot Mahazar, Ex.P.4, is copy of the Sketch, Ex.P.5 is copy of the IMV Report, Ex.P.6 is copy of the Wound Certificate and Ex.P.7, is copy of the Charge Sheet. Ex.P.1, i.e., the copy of First Information Report, which discloses that the Criminal Case has been registered against the rider of the motor cycle bearing Reg.No.KA-41-Q-3171 for the offences punishable under Sec.279 and 337 of the Indian Penal Code, under Section 134(a) and (b) of The Motor Vehicles Act. After investigation, the police have 12 SCCH-24.
M.V.C.1702/2015 filed the charge sheet against the rider of the motor cycle bearing Reg.No.KA-41-Q-3171 for the offences punishable under Sec.279 and 338 of Indian Penal Code, Section 134 (a) and (b) r/w Section 187 of the Motor Vehicles Act. Ex.P.3 i.e., the copy of Mahazar drawn on the seen of the occurrence also supports the case of the petitioner. Thus, the contents of the police documents prima-facie establishes the rash and negligence on the part of the rider of the motor cycle bearing Reg.No.KA-41-Q-3171.
15. The 1st respondent has taken specific defence that, the motor cycle bearing Reg.No.KA-41-Q-3171 was not involved in the accident. In order to substantiate the said facts, the 1st respondent has not placed any material evidence before this Tribunal. The respondent No.1 has not made any attempt to examine the rider of the motor cycle bearing Reg.No.KA-41-Q-3171, who is the best witness to say about the negligence. The 13 SCCH-24.
M.V.C.1702/2015 respondent No.2 being the RC owner of the said motor cycle has not come forward to defend the case of the petitioner. Under these circumstances, the evidence of P.W.1, coupled with the contents of the police documents establishes that, the accident has caused solely due to the rash and negligent riding of the motor cycle bearing Reg.No.KA-41-Q-3171 by its rider. Ex.P.6 is the Wound Certificate, which discloses that, the petitioner had sustained injuries in the said accident. Accordingly, issue No.1 is answered in the Affirmative. Issue No.2:
16. It is the case of the petitioner that, he has sustained injuries in the accident. The petitioner has produced Ex.P.6, i.e., the Wound Certificate issued by the Essential Hospital, Bengaluru. Ex.P.6 reveals that the petitioner had sustained the following injuries:
Fracture of left both bone-forearm. Abrasion over the right foot.
14 SCCH-24.
M.V.C.1702/2015 As per Ex.P.6, the above said injuries are grievous in nature. There is no much dispute with regard to the injuries sustained by the petitioner. In view of the findings recorded on issue No.1, the petitioner has suffered injuries because of the actionable negligence on the part of the rider of the motor cycle bearing Reg.No. KA-41-Q-3171. Hence, the petitioner is entitled for the compensation.
17. It is the evidence of P.W.1 that, he took operative and inpatient treatment at Essential Hospital, Bengaluru from 02.04.2015 to 04.04.2015. During the course of treatment, open reduction with internal fixation left radius and ulna with plate and screw was done. Taking into consideration of the nature of injuries and treatment taken as an inpatient and outpatient, I am of the considered opinion that, the petitioner has suffered severely due to the accidental injuries. Hence, 15 SCCH-24.
M.V.C.1702/2015 the petitioner is entitled for a sum of Rs.40,000/- towards pain and suffering.
18. It is the evidence of P.W.1 that, he has spent Rs.55,552.71 towards treatment, medicine, conveyance, nourishment and diet charges. The petitioner has produced Ex.P.13, i.e., 16 medical bills amounting to Rs.55,552=71 and 8 prescriptions at Ex.P.14. Taking into consideration of the nature of the injury and the treatment as in-patient, I am of the opinion that, the petitioner might have spent substantial amount for medical treatment. Therefore, the petitioner is entitled for a sum of Rs.55,552/- towards Medical Expenses.
19. It is the case of the petitioner that, he has taken operative and inpatient treatment from 02.04.2015 to 04.04.2015. P.W.1 deposed that, after discharge, he is taking follow-up treatment as an outpatient. P.W.1 deposed that, he used to pay Rs.150/- for auto per trip. Ex.P.16(a), i.e., the 16 SCCH-24.
M.V.C.1702/2015 Discharge Summary issued by Essential Hosptial, Bengaluru discloses that, the petitioner was admitted as an inpatient from 02.04.2015 to 04.04.2015 for a period of 3 days. It is pertinent to note that, during treatment period the petitioner must have spent money for food and nourishment. The nature of injury certainly made it inevitable for the petitioner to have an attendant. The nature of injury necessitates the follow-up treatment. The petitioner has not placed any material evidence before this Tribunal with regard to amount spent towards incidental expenses. In the absence of documentary evidence and having regard to all these aspect, I am of the considered opinion that, the petitioner is entitled for a sum of Rs.10,000/- towards food and nourishment expenses, conveyance and attendant charges.
20. The case of the petitioner is that, at the time of accident, he was working as an Assistant Professor at 17 SCCH-24.
M.V.C.1702/2015 Global Academy of Technology, Bengaluru and earning a sum of Rs.24,000/- per month. P.W.1 deposed that, due to accidental injuries, he is not able to attend his work for 15 days. Hence, he lost the earned leave. In order to substantiate the said facts, the petitioner has produced Ex.P.8 i.e., the pay slip for the month of February, 2015. Ex.P.8 shows that, the petitioner was drawing gross salary of Rs.24,000/- per month. The petitioner has not examined his employer. The petitioner has not produced any documents to show that, he was on leave for the period of 15 days and he lost earned leave during this period salary is not paid to him. Hence, in the absence of material evidence, the petitioner is not entitled for the compensation towards loss of income during the period of treatment.
21. P.W.2 the doctor in his evidence deposed that, the petitioner requires one more surgery for removal of implant, which may cost around Rs.25,000/-
18 SCCH-24.
M.V.C.1702/2015 to Rs.30,000/-. The petitioner has not produced any material evidence or any estimation before this Tribunal to substantiate the said facts. The nature of injuries certainly necessitate the petitioner to incur future medical expenses. Hence, in the absence of the material evidence the petitioner is entitled for the compensation of Rs.20,000/- towards future medical expenses.
22. It is stated in the petition as well as in the evidence of P.W.1 that, inspite of best available treatment taken, he has suffered disabilities. P.W.1 deposed that, due to accidental injuries and often get pain in his entire left hand and right leg, he cannot be able to do any normal duties. In order to substantiate the said facts, the petitioner has examined P.W.2 the doctor. P.W.2 in his affidavit evidence deposed that, on recent clinical examination it was found that, operative scars on left forearm, wasting of muscles of left forearm, grip strength was fair and the petitioner was difficulty in 19 SCCH-24.
M.V.C.1702/2015 lifting weights and driving two wheeler for long distance. P.W.2 opinioned that, the petitioner suffers residual physical disability of 24% to the left upper limb and 8% permanent disability to the whole body. During the course of cross-examination P.W.2 deposed that, there is no much difficulty for the petitioner to do his work as a professor and he can do his work. P.W.1 in his evidence deposed his profession is Assistant Professor, Global Academy of Technology, Rajarajeshwari Nagar, Bengaluru. The said evidence discloses that, the petitioner is continued in service and there is no future loss of income. Hence, this Tribunal is of the opinion that, the petitioner is not entitled for the compensation under the head loss of future earnings.
23. The petitioner has sustained grievous injuries and has undergone treatment and this shows accident has put him lot of discomfort and he has lost the amenities of life. Taking all these facts into 20 SCCH-24.
M.V.C.1702/2015 consideration, the petitioner is entitled for a compensation of Rs.30,000/- towards loss of amenities of life and disability. Thus, I am of the considered opinion that, it would be both fair and justifiable to award the compensation under the following heads :
1. Pain and suffering. : Rs. 40,000=00
2. Medical expenses. : Rs. 55,552=00
3. Food and Nourishment : Rs. 10,000=00 expenses, conveyance and attendant charges.
4. Future Medical Expenses. : Rs. 20,000=00
5. Loss of amenities of life : Rs. 30,000=00 and Disability.
Total Rs. 1,55,552=00 So, the petitioner is entitled for the total compensation of Rs.1,55,552=00 (Rupees One Lakh Fifty Five Thousand Five Hundred and Fifty Two only) with interest at the rate of 6% per annum from the date of petition, till the date of realisation.
21 SCCH-24.
M.V.C.1702/2015
24. It is held supra by this Tribunal that, the accident has occurred due to the rash and negligent riding of the motor cycle bearing Reg.No.KA-41-Q-3171 by it's rider. Respondent No.1 is the insurer and respondent No.2, is the R.C. owner of the motor cycle bearing Reg.No.KA-41-Q-3171. The 1st respondent has admitted issuance of insurance policy and it's force as on the date of the accident. Hence, Respondent No.1 and respondent No.2 are jointly and severally liable to pay the compensation to the petitioner. Respondent No.1 is liable to indemnify the insured. Accordingly, issue No.2 is answered partly in the Affirmative. Issue No.3:
25. For the foregoing reasons and the discussions as stated above, the petition filed by the petitioner deserves to be allowed in part with costs.
22 SCCH-24.
M.V.C.1702/2015 In result, I proceed to pass the following:
ORDER The claim petition filed under Section 166 of Motor Vehicles Act by the petitioner is hereby allowed in part with costs.
The petitioner is awarded a total compensation of Rs.1,55,552=00 (Rupees One Lakh Fifty Five Thousand Five Hundred and Fifty Two only) with interest at the rate of 6% per annum from the date of petition, till deposit.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation awarded in this case to the petitioner.
The respondent No.1 shall deposit the said compensation amount into the Tribunal within 30 days from the date of this order.
The petitioner is at liberty to withdraw the entire compensation amount with interest.
23 SCCH-24.
M.V.C.1702/2015 Advocate's fee is fixed at Rs.1,000/-. Draw Award Accordingly.
(Dictated to the stenographer on Computer, typed by her, corrected by me and then pronounced in the open court on this the 10th day of March, 2016).
(HIREMATH SHOBHARANI BABAYYA ) XXII A.S.C.J., & XX A.C.M.M., & MEMBER,M..A.C.T., BENGALURU.
ANNEXURE Witnesses examined on behalf of the Petitioner :
P.W.1 - Vikas Rao Nalwade V. P.W.2 - Dr. Yogaprakash R.M.
Witnesses examined on behalf of the Respondent:
-NIL-
Documents marked on behalf of the Petitioner:
Ex.P.1 - Copy of the First Information Report.
Ex.P.2 - Copy of the Complaint.
Ex.P.3 - Copy of the Spot Mahazar.
Ex.P.4 - Copy of the Sketch.
Ex.P.5 - Copy of the IMV Report.
Ex.P.6 - Copy of the Wound Certificate.
Ex.P.7 - Copy of the Charge Sheet.
24 SCCH-24.
M.V.C.1702/2015
Ex.P.8 Salary Slip.
Ex.P.9 - Copy of Driving Licence.
Ex.P.10 & - 2 Photos.
11
Ex.P.12 - C.D.
Ex.P.13 - 16 Medical Bills.
Ex.P.14 - 8 Prescriptions.
Ex.P.15 - 3 X-ray films.
Ex.P.16 - Case sheet.
Ex.P.16(a) - Discharge Summary.
Ex.P.17 - 3 X-ray films.
Ex.P.18 - Copy of MLC Register Extract.
Documents marked on behalf of the Respondent:
-NIL-
(HIREMATH SHOBHARANI BABAYYA ) XXII A.S.C.J., & XX A.C.M.M., & MEMBER,M..A.C.T., BENGALURU.