Bangalore District Court
Sri. S.Muniswamy vs M/S. Suguna Poultry Farm on 4 February, 2020
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND ACMM (SCCH-5) AT
BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY 2020
PRESENT: SMT. SHARMILA S. B.Com, LLB.,
C/C XXIV ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
M.V.C No.1504/2018
PETITIONER : Sri. S.Muniswamy
S/o. S.Gurrappa
Aged about 55 years
R/o No.2-82,
Keelapalle village,
Gangavaram mandal,
Chittoor dist,
Andra Pradesh.
(By Sri.T.V.Ramesh Adv.,)
V/s
RESPONDENTS : 1. M/s. Suguna Poultry Farm
Ltd.,
College road,
Doddagattiganabi village,
Hosakote Taluk,
Bangalore rural dist.,
(By Sri.M.Shivaraja- Adv.,)
2. The SBI General Insurance
company Ltd., Rukmani towers,
Plot form road, Sheshadripuram,
Bangalore-20.
(By Sri.S.Maheswara, Adv.,)
****
2 MVC No.1504/2018
SCCH 26
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 25.01.2018 at about 8.30 am., the injured petitioner was standing by the side of the Adinarayanareddy Poultry Farm Main gate, on four roads Punganur road, Gangavaram Mandal, Chittoor District, Andra Pradesh, at the same time one multi axle Lorry bearing Reg.No.KA-53-1223 came in a rash and negligent manner from Poultry farm while existing from the poultry farm the driver steered the loaded lorry to left side due to that unbalanced body of the lorry dashed against main gate wall and the wall collapsed and fallen on the legs of 3 MVC No.1504/2018 SCCH 26 petitioner. Due to which the petitioner sustained grievous injuries.
3. Immediately after the accident the petitioner was taken to government hospital, Palamaner and after referred to Sri Ramadevi Multi Super Speciality Hospital, Tirupathi. In the Hospital crush injury of left leg exposing bones, tendons and muscles are noticed and treated by below knee amputation of left leg. The petitioner requires further surgery of revision amputation and lost left leg and he is 100% functionally disabled.
4. It is the case of the petitioner that he was working as mason and earning Rs.20,000/- per month. After the accident till today the petitioner is completely bedridden and los this earnings. In future the petitioner cannot do any avocation much less the work of mason due to loss of left leg and 100% disability and impediment. So far the petitioner has spent Rs.3,00,000/- towards treatment, medicine, conveyance 4 MVC No.1504/2018 SCCH 26 etc., and requires more amount for his future treatment. Hence, he has claimed compensation of Rs.40,00,000/- against Respondents.
5. After service of notice, both Respondents No.1 and 2 appeared through counsel and filed their respective written statement.
6. The 1st respondent filed its written statement by denying the entire averments of the petition and contends that the accident took place entirely due to the negligently standing the petitioner beside on the Poultry Farm, gate wall knowing that lorry is coming towards him, there is no fault of driver of the Vehicle bearing No.KA-53-1323, is carefully driving, but on the petitioner negligently came opposite, to avoid him, he dashed to the gate wall even though it was fell down on the petitioner's leg, though the negligently came opposite by the petitioner. the driver of the Lorry was having valid driving licence, RC, permit, road tax and insurance policy. The 5 MVC No.1504/2018 SCCH 26 first respondent is the owner of the vehicle and 2nd petitioner is the insurer. The 1st respondent driver of the vehicle has experience of driving the vehicles and he has got valid driving license and he is with lot of responsibilities and awareness as to how the vehicle has to be driven. Thus this respondent is no way responsible for the accident and it was caused because of the negligently crossing the road by the petitioner. Among other grounds, the 1st petitioner prays to dismiss the petition.
7. The Respondent No.2 filed its written statement by denying the entire averments of the petition, but interalia admitted issuance of insurance policy to the Lorry bearing Reg.No.KA-53-1323 and liability to indemnify the Respondent No.1 is subject to the terms and conditions of the policy, provisions of M.V.Act, valid and effective driving licence, valid R.C., F.C. and Permit. It also seeks protection available under Sec.147, 149(2), 6 MVC No.1504/2018 SCCH 26 134(c) and 158(6) of M.V.Act. Further it is admitted that, there is lapse of two days in lodging complaint. It is admitted that, driver of the above said Lorry was not holding valid and effective driving license and said Lorry was not having valid Permit and FC as on the date of the accident. Except this all other defences are formal in nature and among other grounds, prays to dismiss the petition.
8. On the basis of the above pleadings, My learned predecessor has framed the following:
::ISSUES::
1. Whether Petitioner proves that, he has sustained injuries on account of road traffic accident took place by the side of Adinarayanareddy Poultry farm, on four roads, Punganur, Gangavaram Mandala, Chittur District, Andra Pradesh due to rash and negligent driving of the driver of Multy Exel Lorry bearing Reg.No.KA-53-AV-1323 dated 25.01.2018 at about 08.30 am as alleged in the petition?7 MVC No.1504/2018
SCCH 26
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
9. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and got marked Ex.P.1 to Ex.P.13 documents. Further Dr.Nagaraj, Orthopedic Surgeon, SOADS, Bangalore, examined as PW2 and got marked Ex.P14 and Ex.P15 documents. Per contra the Civil Assistant Surgeon, Area Hospital, Palamaner , Chitoor District, examined as RW1 and got marked Ex.R1 and Ex.R2 documents. Further the MRO, Sri Ramadevi Multi Super Speciality Hospital, Tirupathi, examined as RW2.
10. Heard the arguments of learned counsel for the Petitioner and Respondent.
11. My findings on the above Issues are as under: 8 MVC No.1504/2018
SCCH 26 Issue No.1 : In the Affirmative Issue No.2 : Partly in the affirmative Issue No.3 : As per final order for the following:
::REASONS::
12. Issue No.1 and 2: As these two issues are interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
13. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of driver of the Lorry bearing Reg.No.KA-53- 1323. In order to prove the above said issues, Petitioner examined himself as PW-1 and Doctor as PW2 and got marked in all 15 documents.
14. In order to prove this fact, he has produced Police records which are marked as Ex.P.1 to Ex.P.6 ie., FIR, Complaint, Form No.54, Sketch, translated copy of the sketch, Wound certificate and Charge sheet. If we 9 MVC No.1504/2018 SCCH 26 peruse the oral and documentary evidence adduced by the Petitioner i.e., Ex.P.1 FIR with Complaint, which clearly discloses that, on 25.01.2018 at about 08.30 am., the petitioner sustained injuries on account of road traffic accident took place by the side of Adinarayanareddy Poultry Farm, on four roads, due to rash and negligent driving of the driver of Multy Exel Lorry bearing Reg.No.KA-53-1323.
15. PW-1 has been cross-examined by learned counsel for the Respondent No.2 which consists of bear suggestions and denials. Further he denied his part of negligence in the accident. Except this all other suggestions were denied by the Petitioner. From the above evidence, it is the only contention of the Respondent No.1 is that, there is a lapse of 2 days delay in lodging the complaint and the insured vehicle was falsely implicated by the Police. The driver of the Lorry was not holding valid and effective driving license and the 10 MVC No.1504/2018 SCCH 26 said vehicle was not having valid permit and FC as on the date of the accident. In order to substantiate its contention, the 2nd Respondent has examined the Civil Assistant Surgeon, Area Hospital, Palamaner has examined himself as RW1 and got marked Ex.R1 and Ex.R2 i.e., Police intimation and MLC. In the chief examination he deposed that at Ex.R1and Ex.R2 the vehicle number was not mentioned.
16. Further the MRO, Sri. Ramadevi Multi Super Speciality Hospital, Tirupathi, examined as RW2. In the chief examination he deposed that since the MLC was registered in the Area Hospital , Palamaner it was not registered in their hospital, The petitioner has taken treatment in their hospital from 25.01.2018 to 13.02.2018 and discharged, based on the wound certificate referred from the area hospital they have treated the petitioner. Though the 1st Respondent filed its written statement, he was not come forwarded to 11 MVC No.1504/2018 SCCH 26 cross examine the witnesses nor produced any documents appeared before the Court nor examined the driver of the Lorry to disprove the negligence on the part of driver of the Lorry.
17. Moreover, the Respondent No.2 has not denied the occurrence of accident. The contents of charge sheet clearly shows that, the Police have filed charge sheet against the driver of the offending vehicle since, this accident was due to rash and negligent driving by the driver of the offending Lorry in a rash and negligent manner and dashed against the Petitioner, on account of which the Petitioner suffered the injuries. In order to disprove the contentions of the Petitioner and also the Police documents, the Respondents have not lodged any counter complaint stating that there is no negligence on the part of the offending vehicle driver. It is true that, this accident was occurred on 25.01.2018 and complaint was lodged on 27.01.2018, that means, 2 days delay in 12 MVC No.1504/2018 SCCH 26 lodging FIR and in this regard, it is useful to rely on a decision reported in AIR 2011 SC 1226 in between Ravi V/s. Badrinarayan & Ors. I have carefully perused this judgment wherein, Hon'ble Apex Court had made it clear that, mere delay in lodging FIR has not been fatal and claim petition need not be dismissed on that ground. Hence, an inference can be drawn against the driver of the offending vehicle that due to the rash and negligent driving by the driver of the above vehicle, this accident took place and the Petitioner sustained injuries.
18. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, he was aged 55 years at the time of the accident. In order to prove his age, Petitioner has not produced any documents. But on perusal of Ex.P5 Wound Certificate wherein the age of the petitioner was mentioned as 55 years. Hence, based on the above document, it is considered that the Petitioner was aged 55 years as on 13 MVC No.1504/2018 SCCH 26 the date of the accident. As per the Sarla Varma's Case, the proper multiplier applicable to the age group of 51 to 55 years is 11.
19. Petitioner has contended that, he was working as a Mason and earning Rs.20,000/- per month. In order to prove his employment and income, Petitioner has not produced any documents. Since the accident took place in the year 2018, notional income of the Petitioner as Rs.9,000/- would suffice for calculating compensation.
20. Petitioner had sustained Crush Injury of left leg exposing all the soft tissues and bones of the left leg for which he underwent below knee amputation. In order to prove injury and treatment taken, he has produced Ex.P.5 Wound Certificate issued by the Andra Pradesh Vaidya Vidhana Parishad and Discharge Summary at Ex.P7 issued by Sree Rama Devi Multi Super Speciality Hospital, Tirupati, wherein he took treatment as an 14 MVC No.1504/2018 SCCH 26 inpatient from 25.02.2018 to 13.02.2018. Petitioner has also produced Medical Bills to the tune of Rs.2,61,167/- marked as Ex.P.12 and Ex.P13 Prescriptions.
21. Further the Petitioner examined Dr.Nagaraj.B.N, Orthopaedic Surgeon, SOADS, Bangalore as PW2 and got marked Ex.P14 Clinical Notes and Ex.P15 X-ray film. PW-2 has assessed disability of 70% physical impairment and the functional disability is 100%. Further in his cross-examination PW-2 deposed that, he has not treated the petitioner. Further he denied the other suggestions made by the learned counsel for the 2nd respondent. If we peruse the evidence of PW2 he has assessed the disability in the year 2019 and the accident occurred in the year 2018 ie., after one year from the date of accident he has assessed the permanent physical impairment at 70% is on higher side. Hence, this Court deems fit that, total permanent disability 15 MVC No.1504/2018 SCCH 26 suffered by the Petitioner to the whole body is taken as 40% to the whole body.
22. As per the Discharge Summary, the Petitioner was hospitalized for a period of 20 days, if one month income is awarded under the head of loss of income during laid up period and rest period certainly it would meet the ends of justice. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.9,000/- under the head of loss of income during the laid up period under rest period.
23. PW2 stated in his chief examination that the petitioner needs a below knee prosthesis and the approximate cost of this prosthesis is around Rs.5,00,000/- and this prosthesis needs regular maintenance. The petitioner has produced Ex.P8 estimation issued by Endolite India Limited wherein the total cost of prosthesis mentioned as Rs.3,61,300/-. Since, the petitioner has undergone below knee 16 MVC No.1504/2018 SCCH 26 amputation, he needs below knee prosthesis. Hence, the petitioner is entitle for Rs.50,000/- as future medical expenses.
24. The Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
to treatment, hospitalization, 2,61,000-00
medicines, transportation
(Rs.2,61,167/- rounded off to
Rs.2,61,000/-)
b)nourishing food and 20,000-00
miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had he
not been injured, comprising:
a) Loss of earnings during period 9,000-00
of treatment
b) Loss of future earnings on 4,75,000-00
account of permanent disability
(Rs.9,000/-x12x11x40%
= Rs.4,75,200/- rounded off
Rs.4,75,000/-)
3. Future medical expenses 50,000-00
a) for fixation of artificial limb 17 MVC No.1504/2018 SCCH 26 II. NON-PECUNIARY DAMAGES (General Damages)
4. Damages for pain, suffering and 1,50,000-00 trauma as a consequence of the injuries
5. Loss of amenities ( and/or loss 25,000-00 of prospects of marriage)
6. Loss of expectation of life 20,000-00 (shortening of normal longevity) Total 10,10,000-00
25. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.10,10,000/- with interest at the rate of 9% p.a. from the date of petition till its realization.
26. As far as awarding of interest on the compensation amount is concerned, in a recent decision reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.28141-42 of 2017 decided on 06.04.2018) wherein the Hon'ble Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of 18 MVC No.1504/2018 SCCH 26 the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) at para No.1 and 12 Hon'ble Supreme Court held that: "Quantum- Interest-Tribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per cent-Apex Court allowed interest at 9 per cent per annum from the date of filing of claim application". In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the 19 MVC No.1504/2018 SCCH 26 Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
27. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.2 being the insurer of the offending Lorry bearing Reg. No.KA-53-1323 had issued policy in favour of Respondent No.1. Hence, Respondents No.1 and 2 are jointly and severally liable to pay compensation to the Petitioner. However, the 2nd Respondent has to indemnify the 1st Respondent. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
28. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following:
::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.20 MVC No.1504/2018
SCCH 26 Petitioner is entitled for total compensation of Rs.10,10,000/- (Rupees Ten Lakhs Ten Thousand Only) with interest at the rate of 9% p.a. (Excluding Future Medical Expenses of Rs.50,000/-) from the date of petition till the date of realization.
The Respondent No.2 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, 75% to be released in his favour through E-payment directly to the petitioner's Account by obtaining the bank account details and remaining 25% to be kept in fixed deposit in any Nationalized or Scheduled Bank, for a period of three years, in his name. The Advocate`s 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 4th day of February, 2020) (SHARMILA.S.) C/C XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.21 MVC No.1504/2018
SCCH 26 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Sri. S.Muniswamy PW-2 : Dr. Nagaraj B.N.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : FIR Ex.P.2 : Complaint Ex.P.3 : Form No.54 Ex.P.4 : Sketch Ex.P.4(a) : Translation copy Ex.P.5 : Wound certificate Ex.P.6 : Charge sheet Ex.P.7 : Discharge summary Ex.P.8 : Estimation Ex.P.9 : Photos and 10 Ex.P.11 : CD Ex.P.12 : Discharge bill (66 bills) Rs.2,61,167/- Ex.P.13 : Medical prescriptions (9 copies) Ex.P.14 : Clinical notes Ex.P.15 : X-ray film
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW-1 : Dr.B.Subramanyam
RW-2 : C.H.Chakradar Rao
22 MVC No.1504/2018
SCCH 26
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R1 : Notarised copy of police intimation Ex.R2 : Notarised copy of MLC (SHARMILA.S.) C/C XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.