Bangalore District Court
Sri. Nagaraju vs New India Assurance Co. Ltd on 23 January, 2023
KABC020049042021
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
PRESENT: SRI. MALAKARI RAMAPPA WADEYAR
B.A., LLB.,(Spl.)
VIII ADDL. SCJ & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.846/2021
PETITIONER : Sri. Nagaraju
S/o. Honnaiah
Aged about 21 years
Residing at
Malleswara,
Kadur Taluk,
Chickmagalur - 577 548.
(By Sri.Shankar Prasad M.B. Adv.,)
V/s
RESPONDENTS : 1. New India Assurance Co. Ltd.,
Regional Office
No.9/2, 2nd Floor,
Mahalakshmi Chambers,
2 MVC No.846/2021
SCCH 5
M.G.Road,
Bengaluru - 560 001.
(Policy No.68010031200100008352)
(By Sri.Nagaraja K. Adv.,)
2. Sri. Syed Althaaf
S/o. Syed Japher
3rd Cross, Siddeswaranagar,
Shimogga - 577 203
(By Sri. Dileep Kumar M.N. Adv.,)
3. The Oriental Insurance Co. Ltd.,
No.44/45, 3rd Floor,
Leo Shopping Complex,
M.G.Road,
Bengaluru - 560 001.
(Policy No.472190/31/2021/773)
(By Sri.Sunil Kumar K.N. Adv., )
4. Sri. B. Thippeswamy
S/o. Bheemappa
Opp. Adarsha Kalyanamantapa,
M.H.Road,
Chitradurga - 577 501.
(Exparte)
****
3 MVC No.846/2021
SCCH 5
::JUDGMENT::
This petition is filed by the Petitioner against Respondent No.1 to 4 under Sec.166 of M.V.Act 1989 for the relief of compensation .
2. The brief facts of the case is as under; That on 23.01.2021 at about 3.30 p.m. while moving in bus bearing Reg.No.KA18B0225 near Nagamangala Gate, meantime tanker bearing Reg.No. KA14A1631 came in high speed rash and negligently and dashed against the bus, due to the impact petitioner sustained grievous injuries, immediately he was shifted to Birur Government Hospital, then shifted to Aditya Hospital Tumkur, wherein he took treatment as inpatient for 7 days, spent an amount of Rs.1,70,000/ towards medical and other expenses.
4 MVC No.846/2021
SCCH 5
3. Prior to the accident, he was hale and healthy, working as DTP Operator and earning Rs.20,000/ p.m., due to this accident he has lost his income and earning capacity, out of this accident crime No.12/2021 is registered against the said tanker and its driver before Ajjampura P.S. for the offences punishable under Sec.279, 338 of IPC. R1 is the insurer, R2 is owner of the said tanker, R3 is insurer and R4 is owner of bus, they are jointly and severally liable to pay compensation. Hence, prays to allow the petition and grant compensation of Rs.15,00,000/.
4. On service of notice, respondent No.1/insurer of the tanker has appeared and filed written statement denying entire case of the petitioner, he is entitled to take shelter available under Sec.147 and 149 of M.V.Act, there is no compliance of Sec.134(c) and 158(6) of 5 MVC No.846/2021 SCCH 5 M.V.Act, further stated that, driver of the tanker was not holding valid and effective driving license, petitioner has to prove the allegations made by him, claim made by the petitioner is higher side, hence petition is not maintainable. Accordingly prays to dismiss the petition.
5. On service of notice. R3/insurer of bus has appeared and filed written statement denying case of the petitioner, further admitted issuance of policy bearing No.472190/31/2021/773 in favour of R4 valid from 10.11.2020 to 09.11.2021, liability if any is subject to terms and conditions of the policy, there is no compliance of Sec.134(c) and 158(6) of M.V.Act, there was delay of 4 days in lodging the complaint, the driver of the bus did not possess valid and effective driving license, he is entitled to take shelter available under Sec.170, 147 and 149 of M.V.Act, claim made by the 6 MVC No.846/2021 SCCH 5 petitioner is higher side, hence petition is not maintainable. Accordingly prays to dismiss the petition.
6. On service of notice, R2 has appeared through advocate but not filed written statement. Inspite of service of notice R4 remained absent, hence placed exparte.
7. On going through the rival pleadings of the parties, this tribunal has framed the following:
::ISSUES::
1. Whether Petitioner proves that, he has sustained grievous injuries in a motor vehicle accident that occurred on 23.01.2021 at about 3.30 p.m. near ABC Park, Kammanahalli due to rash and negligent driving of Tanker bearing Reg.No.KA14A1631 by its driver, as mentioned in claim petition?
2. Whether the owner of the offending vehicle has discharged his initial 7 MVC No.846/2021 SCCH 5 burden by way of producing relevant documents?
3. Whether the Petitioner is entitled for compensation? If so how much and from whom?
4. What order or award?
8. In order to prove his case, Petitioner himself deposed his evidence as PW1, examined 1 witness as PW2 and marked 17 documents as per Ex.P.1 to Ex.P.17 and closed his evidence. On the other hand, R3 has deposed his evidence as RW1 and marked 4 documents as per Ex.R.1 to Ex.R.4 and closed his evidence.
9. Heard the arguments and perused the evidence available on record, then my findings on the above issues are as follows:
Issue No.1 : In the Affirmative Issue No.2 : In the Negative 8 MVC No.846/2021 SCCH 5 Issue No.3 : Partly in the Affirmative Issue No.4 : As per final order for the following:
::REASONS::
10. Issue No.1: As per story of the petitioner very accident is occurred due to negligency of driver of the tanker, owner of the lorry/R2 has appeared before the court, but not contested the petition. R1/insurer of the tanker has contested and taken contention that, there is no negligency of the tanker driver. In order to prove his case, petitioner has deposed his evidence as PW1, in his chiefexamination petitioner has reiterated the facts narrated in his petition. In this regard copy of FIR is marked as Ex.P.1. copy of complaint is marked as Ex.P.2, copy of mahazar is marked as Ex.P.3, copy of notice under Sec.133 of M.V.Act is marked as Ex.P.4 and 9 MVC No.846/2021 SCCH 5 5, copy of reply notice marked as Ex.P.6 & 7, copy of charge sheet is marked as Ex.P.8.
11. In crossexamination by counsel for R1 admits that, lorry was in 50 - 60 km. speed charge sheet is against lorry, this accident is occurred only due to negligency of the lorry driver, but not due to neglgiency of the bus driver, further denied that, he moved the hands in the window and out of his negligency, this accident is caused, there is no crossexamination about place, date and time of the accident.
12. In crossexamination by R3 admits that, this accident is caused by the lorry against a bus, further denied that, he moved the hands through window hence this accident is caused, further admits that, there is no negligency of the bus driver.
10 MVC No.846/2021
SCCH 5
13. On the other hand, R3/insurer of the bus has deposed his evidence as RW1 and furnished authorization letter marked as Ex.R.1, copy of policy marked as Ex.R.2, postal cover marked as Ex.R.3, postal receipt with letter marked as Ex.R.4. He has deposed his evidence stating that very accident is occurred only due to negligency of the driver of the tanker bearing Reg.No.KA14A1631. In crossexamination by counsel for petitioner admits that, as per the charge sheet bus driver is the A1 and lorry driver is the A2 in this case, but denied that, very accident is occurred due to negligency of the bus driver. In crossexamination by counsel for R1 admits that, there is no complaint against lorry and its driver. Further admits that, bus driver is A1 in the charge sheet, he denies that very accident is occurred due to negligency of the bus driver, but 11 MVC No.846/2021 SCCH 5 subsequently deposed that there is negligency of both the drivers. He has not seen the incident spot.
14. In support of his version there are police documents likde Ex.P.1 to Ex.P.8 Ex.P.1 FIR and Ex.P.2 complaint speaks that, very accident is occurred only due to negligency of driver of the tanker bearing Reg.No.KA 14A1631. Ex.P.8 is the charge sheet which is against both the drivers for the offences punishable under Sec.279 and 338 of IPC. Ex.P.14 is IMV Report of both the vehicles. On perusal of the same it is noticed that, bus bearing Reg.No.KA18B0225 damaged on straight line impression on right side of the centre of the body shell and rest all parts are in order. Heavy goods vehicle petrol tanker bearing Reg.No.KA14A1631 is damaged on driver cabin right side front quarter glass smashed, 12 MVC No.846/2021 SCCH 5 driver cabin at right side front body pressed and bend and rest all parts are in order.
15. Further on perusal of the Ex.P.3 crime details form it is noticed that, at middle of the road this accident is caused. further it is noticed that, very accident is occurred on AjjampurBerur state highway No.76 in between Meerapur Hosur gate to Chennapur on tar road, very road is having width of 40 ft.
16. On going through the oral and documentary evidence available on record it is noticed that, lorry has dashed against the bus on right side middle portion of the body, very petitioner was sitting on right side of the bus on window side, due to impact of this accident, right side of the body of the bus is damaged and petitioner has sustained grievous injuries on right hand. Under such circumstances, it goes to show that there is more 13 MVC No.846/2021 SCCH 5 negligency on the part of the lorry, but on the other hand, such accident would have been avoided by the bus driver by way of taking his bus on left edge. Under such circumstances, this tribunal is of the opinion that, it is just and necessary to consider the negligency of the lorry driver at the rate of 80%, on the other hand, negligency of the bus driver is considered at the rate of 20%, accordingly fixing the liability on both the vehicles at the rate of 80:20 as stated above. Further there is no dispute about place, date and time of the accident, to that extent there is sufficient evidence on record. Hence believing the same I have answered above Issue No.1 in the affirmative.
17. Issue No.2: In the case on hand, it was the duty of the lorry owner/R2 and bus owner R/4 to appear and produce relevant documents like FC, RC, Insurance 14 MVC No.846/2021 SCCH 5 Policy and driving licence of their drivers. In the case on hand, R2/owner of the lorry has appeared through his advocate but not produced any such documents. R4/owner of the bus has not appeared inspite of service of summons and placed exparte. Under such circumstances, considering all these aspects this tribunal comes to the conclusion that, R2 and R4 have failed to prove this issue in their favour. Hence, I have answered above Issue No.1 in the negative.
18. Issue No.3: As per the evidence of the petitioner, he had sustained fracture of comminuted fracture lateral epicondyle, fracture of olecranon right sided, fracture of shaft of right humerus, for which, he had undergone multiple Kwires for lateral epicondyle, TBW for fracture of olecranon and CRIF with IMIL nailing for fracture of shaft of right humerus. In this regard he 15 MVC No.846/2021 SCCH 5 has furnished discharge summary marked as Ex.P.9, X ray Films marked as Ex.P.12, copy of wound certificate marked as Ex.P.13, copy of IMV Report marked as Ex.P.14, discharge summary marked as Ex.P.1 5.
19. Further Dr.S.A.Somashekara, Orthopaedic Surgeon at Bowring and Lady Curzon Hospital has been examined as PW2 and furnished OP Card with report marked as Ex.P.16, Xray Films marked as Ex.P.17 and he has assessed total disability of right upper limb at the rate of 50% and whole body disability at the rate of 25%.
20. In crossexamination admits that, he has not treated the petitioner at any point of time, not gone through the follow up records and not furnished before this tribunal, further admits that, follow up treatment is having some weigthage, operation is successful, further admits that, compliance of advice of the physiotherapy 16 MVC No.846/2021 SCCH 5 must improve the muscle power, he has no idea about the follow up treatment, implants are not removed, petitioner needs further surgery.
21. Further admits that, as per the guidelines, disability shall be assessed only after completion of the treatment, further denied that, his evidence is against the opinion of the Doctor of Adithya Hospital, as on today petitioner is free from all other external supports and he can walk with some difficulty, he has conducted only physical examination and not conducted any other test, he has not given estimation.
22. On going through medical evidence it is noticed that, petitioner has taken treatment as indoor patient since 23.01.2021 to 29.01.2021, spent an amount of Rs.1,30,833/ he was aged about 22 years, working in private sector, but admittedly Doctor is not 17 MVC No.846/2021 SCCH 5 member of the medical board, not taken opinion from treated Doctor, he has not at all treated the petitioner, fracture is united, not issued disability certificate, prior to removal of implants, disability is assessed, disability is assessed at the rate of 50% to the particular limb, but considering the nature of fracture and line of treatment, this tribunal assessed the disability to the right upper limb only at the rate of 30%, after converting to the whole body disability to the whole body is considered at the rate of 10% for the purpose of calculation of loss of future income.
23. As per the case of the petitioner, he was aged about 22 years, as per copy of aadhar card which is on record, he is born in the year 1999 and the alleged accident is occurred in the year 2021, accordingly his age is considered about 22 years as on the date of accident, 18 MVC No.846/2021 SCCH 5 hence multiplier 18 is applicable with reference to Sarla Verma case.
24. As per his case, he was working as DTP operator and earning Rs.20,000/ p.m., to prove the said fact, there are no documents on record. Under such circumstances, with reference to the year of accident, relying upon the guidelines issued by Hon'ble Karnataka State Legal Services Authority Bengaluru, notional income of the petitioner is taken at the rate of Rs.15,000/ p.m. Therefore, the loss of future income works out as under;
15,000/x12x18x10% = Rs.3,2,4,000/.
25. Keeping in mind injuries caused to the petitioner, treatment taken, expenses incurred and also the pain suffered, this tribunal comes to the conclusion 19 MVC No.846/2021 SCCH 5 that, it is just and necessary to allot compensation under other heads, accordingly for pain and sufferings compensation of Rs.15,000/ is awarded, for conveyance, nourishment and attendant charges Rs.15,000/ is awarded, for loss of amenities of life Rs.15,000/ is awarded, further he is entitled for Rs.15,000/ towards loss of income during laid up period. Further petitioner is also entitled for compensation for medical expenses incurred by him, for which, he has produced medical bills marked as Ex.P.10 for an amount of Rs.1,30,833/. Further petitioner is also entitled for Rs.20,000/ towards future medical expenses.
26. Accordingly, the Petitioner is entitled for compensation as detailed below: Sl.No. Head of Compensation Amount in Rs.
1. Loss of future income 3,24,00000
2. Pain and sufferings 15,00000 20 MVC No.846/2021 SCCH 5
3. Conveyance, nourishment and 15,00000 attendant charges
4. Medical Expenses 1,30,83300
5. Loss of amenities in life 15,00000
6. Loss of income during laid up 15,00000 period
7. Future medical expenses 20,00000 Total 5,34,83300
27. Accordingly I hold that, the Petitioner is entitled for total compensation of Rs.5,34,833/ with interest at the rate of 6% p.a. (excluding future medical expenses of Rs.20,000/) from the date of petition till its realization of entire amount.
28. In the case on hand, respondent No.1 being the insurer tanker has issued insurance policy bearing No.68010031200100008352, which is valid for the period from 22.07.2020 to 21.07.2021, the alleged accident was 21 MVC No.846/2021 SCCH 5 occurred on 23.01.2021 it reveals that, as on the date of accident insurance policy was in force. Further driver of the tanker by name Sunil Kumar A.S. had driving licence at the time of the accident.
29. Respondent No.3 being the insurer of the bus has issued insurance policy bearing No.472190/31/2021/773, which is valid for the period from 10.11.2020 to 09.11.2021, the alleged accident was occurred on 23.01.2021 it reveals that, as on the date of accident insurance policy was in force. Further driver of the bus by name Ravikumar had driving licence at the time of the accident. Hence R1 and R3 being insurers of the tanker lorry and bus is liable to pay compensation at the rate of 80:20 with interest at the rate of 6% p.a. within 60 days from the date of this order. With these 22 MVC No.846/2021 SCCH 5 views, I have answered Issue No.3 partly in the affirmative.
30. Issue No.4: For the reasons assigned to Issues No.1 to 3, I proceed to pass the following:
::ORDER::
The petition filed by the Petitioner under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.
The Petitioner is entitled for compensation of Rs.5,34,833/ (Rupees Five Lakhs Thirty Four Thousand Eight Hundred Thirty Three Only) with interest at the rate of 6% p.a. (excluding future medical expenses of Rs.20,000/) from the date of petition till its realization. The Respondent No.1 and respondent No.3 shall deposit award amount in the ratio of 80:20 with interest within 60 days from the date of this order.
The Petitioner is entitled to get release 60% of the award amount through epayment directly to his 23 MVC No.846/2021 SCCH 5 account on furnishing the Bank A/c details along with address proof and remaining 40% shall be kept in Fixed Deposit in any of the Scheduled Bank for a period of three years, in his name.
The Advocate Fee is fixed at Rs.1,000/. Draw award accordingly.
(Dictated to the stenographer directly on the computer, typed by her, thereof is corrected and then pronounced by me in the Open Court on this the 23rd day of January, 2023) (MALAKARI RAMAPPA WADEYAR) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Sri. Nagaraju H. PW2 : Dr. S.A.Somashekhara 24 MVC No.846/2021 SCCH 5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : Copy of FIR Ex.P.2 : Copy of Complaint Ex.P.3 : Copy of Mahazar Ex.P.4 & : Copy of Notice under Sec.133 of Ex.P.5 M.V.Act (2 in Nos.) Ex.P.6 & : Copy of Reply Notice (2 in Nos.) Ex.P.7 Ex.P.8 : Copy of Charge Sheet Ex.P.9 : Discharge summary Ex.P.10 : Medical Bills (43 in Nos.) of Rs.1,30,833/ Ex.P.11 : Medical Prescriptions (8 in Nos.) Ex.P.12 : Xray Films (6 in Nos.) Ex.P.13 : Copy of Wound Certificate Ex.P.14 : Copy of IMV Report Ex.P.15 : Discharge Summary dated 16.03.2022 Ex.P.16 : OP Card with Report Ex.P.17 : Xray Films LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW1 : Smt. P.Parimala LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: Ex.R.1 : Authorization Letter 25 MVC No.846/2021 SCCH 5 Ex.R.2 : Copy of Policy Ex.R.3 : Postal Cover Ex.R.4 : Postal Receipt and Letter (MALAKARI RAMAPPA WADEYAR) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.