Bangalore District Court
Nagarathnamma vs Hdfc Ergo General Ins Co Ltd on 1 April, 2024
KABC020155162022
BEFORE THE COURT OF I ADDL. SMALL CAUSE JUDGE & ACMM
& MOTOR VEHICLES ACCIDENT CLAIM TRIBUNAL,
BENGALURU. (SCCH-11)
DATED THIS THE 01ST DAY OF APRIL - 2024
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSE JUDGE & ACMM
& MEMBER - MACT
MVC No.2741/2022
PETITIONER:
Smt.Nagarathnamma,
W/o.Late Narasaiah,
Aged 60 years,
Resident of Beeragondanahalli,
Sompura Hobli,
Nelamangala Taluk,
Bengaluru Rural District - 562 123.
(By Sri.R.Chandra Shekhar, Adv.)
//Versus//
RESPONDENTS:
1. HDFC ERGO General Insurance Company Ltd.,
No.25/1, 2nd Floor, Building No.2,
Shankaranarayana Building,
MG Road, Bengaluru - 560 001.
SCCH-11 2 MVC.No.2741/2022
(Policy No.2312 2029 4297 5601 000
Valid from 22.09.2020 to 21.09.2021).
2. Sri.Manjunath.B.,
S/o.Ugraiah,
Beeragondanahalli, Sompura Hobli,
Nelamangala Taluk,
Bengaluru Rural District - 562 123.
(Resp.1 - By Sri.K.Suresh, Adv.)
(Resp.2 - Exparte)
JUDGMENT
This claim petition is filed by the petitioner claiming compensation of ₹.15,00,000/- with interest from the date of petition till its realization for the injuries sustained by the petitioner.
2. The case of the petitioner in brief is that on 28.07.2021 at about 7.45 p.m., when she was walking on the mud portion of Kamalapura - Beeragondanahalli Road Near Kittanna's land, at that time a Bike bearing Regn.No.KA-02-HK- 4926 ridden by its rider at high speed in a rash and negligent manner in a zigzag manner and hit to petitioner. Due to which, she fell down and sustained grievous injuries and SCCH-11 3 MVC.No.2741/2022 thereafter she was shifted to MC Orthopaedic, Arthroscopy and Joint Replacement Center, Tumkur, wherein she took treatment as an inpatient and spent a sum of ₹.75,000/- towards medical, conveyance, nourishment and other incidental charges.
Prior to the accident, she was hale and healthy and was doing agriculture work, coolie work and milk vending business and earning ₹.20,000/- per month. Due to the accidental injuries, she has suffered permanent disability. The accident occurred only due to rash and negligent riding of motor cycle by its rider. The respondents being the insurer and owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
3. In spite of service of notice, 2 nd respondent did not appear before the tribunal hence, he has been placed as ex- parte. The 1st respondent appeared before the tribunal through his counsel and filed his written statement. SCCH-11 4 MVC.No.2741/2022
4. In the Written Statement, the respondent No.1 has denied the contents of claim petition specifically and categorically. He also denied age, occupation and income, place, time and manner of accident. Further he has contended that the petition filed by the petitioner is not maintainable either in law or on facts and same is liable to be dismissed. Further contended that the rider of motor cycle was not holding a valid and effective driving license and FC at the time of accident. Further this respondent has admitted the issuance of policy insurance in favor of 2 nd respondent in respect of motor cycle and the liability if any is subject to the terms and conditions of policy. Further contended that the accident occurred due to negligence on the part of petitioner was crossing road without having proper look out vehicular movements of road and self fall and without noticing on coming vehicles and she was crossing the road carelessly and caused the accident. The amount claimed by the petitioner is highly exorbitant. Hence, prayed for dismissal of petition. SCCH-11 5 MVC.No.2741/2022
5. On the basis of above pleadings, this Tribunal has framed the following:
ISSUES
1. Whether petitioner proves that, she sustained grievous injuries in the accident that occurred on 28.07.2021 at about 7.45 p.m., Kamalapura-Beeragondanahalli Road, Near Kittanna's Land, Sompura Hobli, Nelamangala Taluk, Bengaluru, while she was walking on the mud portion of road, due to the rash and negligent riding of motor cycle bearing registration No.KA-02-HK-4926 by its rider?
2. Whether the petitioner is entitled for compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
3. What order or award?
6. In order to prove her case, the petitioner has examined herself as PW.1, Medical Record Officer working at MC Orthopaedic Arthroscopy & Joint Replacement Center examined as PW.2 and Dr.Nagaraj.B.N examined as PW.3 and got marked documents at Ex.P.1 to Ex.P.17 and closed her side of evidence. On the other hand, the respondent insurance SCCH-11 6 MVC.No.2741/2022 company examined its Senior Manager as RW.1 and got marked documents at Ex.R.1 to Ex.R.13 and closed their side of evidence.
7. I have heard the arguments on both the sides and perused the materials available on record.
8. Findings of this tribunal on the above issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : Partly in the Affirmative; Issue No.3 : As per final order for the following:-
-:REASONS:-
9. Issue No.1:- The petitioner has contended that on 28.07.2021 at about 07.45 p.m., On Kamalapura- Beeragondanahalli Road, Near Kittanna's Land, Sompura Hobli, Nelamangala Taluk, Bengaluru, while she was walking on the mud portion of road, due to the rash and negligent riding of Motor Cycle bearing Regn.No.KA-02-HK-4926 by its SCCH-11 7 MVC.No.2741/2022 rider she sustained grievous injuries.
10. In order to prove rash and negligent riding of Motor Cycle bearing Regn.No.KA-02-HK-4926 by its rider, the petitioner has examined herself as PW.1. In her chief examination she has deposed that due to rash and negligent riding of motor cycle by its rider the accident occurred. On perusal of cross-examination of PW.1 nothing has been elicited from the mouth of PW.1 to disprove the case of petitioner.
11. Further, in order to prove accident, the petitioner has produced Ex.P.1 & 2 FIR and first information. On perusal of Ex.P.2 first information, one Sri.Puttaraju.B.N., S/o.Late Narasaiah has lodged a complaint with police on 05.08.2021 and accident occurred on 28.07.2021, so there was 8 days delay in lodging complaint. After registering the case, the police went near the place of accident and drew up Mahazar as per Ex.P.3 by narrating the place of accident. In Ex.P.4 - IMV Report, Inspector of Motor Vehicle noticed damages of right side rear view mirror. Ex.P.6 Medico Legal certificate, it shows SCCH-11 8 MVC.No.2741/2022 that petitioner has sustained injuries in the road traffic accident. After investigation police filed charge sheet as per Ex.P.6, against rider of offending vehicle for the offence punishable U/s.279 & 338 of IPC. On the other hand, the respondent insurance company examined its Senior Manager as RW.1 and got marked documents at Ex.R.1 to Ex.R.13.
12. The respondent insurance company contended that the insured vehicle not involved in the accident, it was falsely implicated in order to get wrongful compensation. In order to prove the contention of respondent insurance company, the respondent insurance company examined its Senior Manager as RW.1. In his chief examination, he has deposed that as per police documents insured cum rider was riding the motor cycle and as per the google time line he was not in spot and as per the eye witness petitioner was hit by unknown deo vehicle and petitioner and complainant are belonging to same village and they are relatives. Further, he has deposed that with the help of jurisdictional police and insured they have SCCH-11 9 MVC.No.2741/2022 hatched preplanned conspiracy and created a false crime records and make believe theory to get compensation the vehicle bearing Regn.No.KA-02-HK-4926 and its rider falsely implicated. In support of his chief examination, the respondent insurance company produced Ex.R.2 copy of a complaint lodged before the Dabaspet Police Station and photographs print outs as per Ex.R.6 to Ex.R.9 and also produced Forensic Lab Report as per Ex.R.10. According to respondent insurance company, as per eye witnesses petitioner was hit by unknown deo vehicle. Respondent insurance company except taking oral contention, he has not examined eye witness before the tribunal to prove that one unknown deo vehicle hit to petitioner. Except producing the google map and forensic report, the respondent insurance company not tried to prove the said document before the tribunal. Mere production of documents before the tribunal itself is not sufficient. Further on perusal of cross examination of RW.1, he has deposed that they have produced Ex.R.9 to show google location of rider. SCCH-11 10 MVC.No.2741/2022 Except producing Ex.R.9, the respondent insurance company did not place any material before tribunal to show that at the time of accident, rider was not at the place of accident and the said mobile was with the rider only. The respondent insurance company did not place any material before the tribunal to show that the rider himself was carrying his mobile along with him. In the absence of cogent evidence only based upon Ex.R.9, this tribunal cannot come to conclusion that the rider of offending vehicle was not at the place of accident.
13. PW.1 in her cross examination, she has deposed that she has not seen the vehicle which hit to her, because she fell down. Further she has deposed that at the time of accident, the villagers were also present. RW.1 in his chief examination, he has deposed that the rider and petitioner belongs to same village, they have falsely implanted the said insured vehicle in this case. On perusal of documents placed by petitioner, the accident occurred when she was returning from her land. One Sri.Puttaraju lodged the complaint with SCCH-11 11 MVC.No.2741/2022 the police on 05.08.2021 and accident occurred on 28.07.2021. In Ex.P.2, he has stated that vehicle bearing No.KA-02-HK-4926 dashed to her mother. On perusal of Ex.P.1 & 2, there was a delay in lodging first information. The petitioner produced Ex.P.5 - Medico legal certificate issued by MC Orthopaedic Arthroscopy Joint Replacement Center. As per the said document, the petitioner went to hospital on 28.07.2022 with the history of RTA. The petitioner summoned the documents from the hospital and marked police intimation as per Ex.P.3. The police intimation sent to police on 28.07.2021 and the same was received by police on 28.07.2021. So, the hospital authorities informed regarding the incident on the date of admission of patient. There is no delay in sending information to the police regarding the accident. Even on perusal of Ex.P.15 - Inpatient Record, the petitioner went to hospital with history of RTA on 28.07.2021 at about 7.45 p.m. All the hospital documents placed by petitioner, it clearly shows that immediately after the accident SCCH-11 12 MVC.No.2741/2022 she went to hospital for treatment. The Hon'ble Supreme Court of India in between Ravi Vs. Badrinarayan reported in (2011) 4 SCC 693, held that delay in lodging a FIR cannot be a ground to doubt the claimants case.
14. The I.O after investigation filed charge sheet as per Ex.P.6 by alleging that due to rash and negligent riding of motor cycle the accident occurred. In Ex.P.6 one Gangaraju, B.S.Rajkumar and Smt.Prathibha are shown as eye witness to the incident. Even in Ex.P.2, it is stated that one Gangaraju called to Puttaraju and informed that there was accident to his mother near the land of Thibbanna at about 8.20 p.m., on 28.07.2021. The I.O after investigation filed charge sheet against the rider of motor cycle. The respondent insurance company except taking contention with the insured vehicle not involved in this accident they have not proved their contention by placing cogent evidence. So, by considering all the oral and documentary evidence placed by both the parties, this tribunal is of the opinion that due to rash and SCCH-11 13 MVC.No.2741/2022 negligent act of rider of motor cycle the accident occurred and same has resulted in grievous injuries to the Petitioner. Accordingly, Issue No.1 held in the Affirmative.
15. Issue No.2: In view of held issue No.1 in the Affirmative, the petitioner is entitled for compensation. To assess the compensation, the Tribunal has to look into several factors like injury, pain and suffering sustained by the petitioner and amount spent by the petitioner towards medical expenses, food and extra nourishment and medical attendants, conveyance, loss of income during treatment, disability, loss of amenities etc., let me discussion one by one.
i) Towards injury and pain and suffering:- The petitioner contended that due to accident she sustained injuries and underwent surgery and later discharged with an advice to take follow up treatment. In order to prove the injuries sustained she has produced Medico Legal certificate issued by M.C.Orthopaedic Arthroscopy - Joint Replacement Center marked at Ex.P.5, wherein it discloses that the injuries SCCH-11 14 MVC.No.2741/2022 sustained by petitioner are grievous in nature. So, on perusal of records she took treatment in hospital as an inpatient, she has produced Ex.P7 - Discharge Summary and petitioner examined Dr.Nagaraj.B.N as PW.3 and got marked documents at Ex.P16 &
17. PW.3/doctor has deposed that he examined the petitioner for assessment of permanent physical disability and he assessed disability of right lower limb at 43% and to the whole body at 14%. By considering the injuries and facts and circumstances of the case, the tribunal is of the view that the compensation of ₹.55,000/- is just and reasonable towards pain and suffering.
(ii) Towards Medical Expenses: The petitioner has claimed compensation towards medical expenses. The petitioner contended that she took treatment at Hospital. The petitioner has produced 26 medical bills marked at Ex.P.10 and 54 medical bills for ₹.1,30,684/- marked at Ex.P.9. The respondents not rebutted the medical bills by placing cogent evidence. So, this tribunal is of the view that compensation of SCCH-11 15 MVC.No.2741/2022 ₹.1,30,684/- is just and reasonable towards medical expenses.
(iii) Towards food, extra nourishment and medical attendant charges: On perusal of records, the accident occurred on 28.07.2021 and the petitioner took treatment as an inpatient in the hospital. On perusal of evidence, the petitioner was inpatient at Hospital as she has sustained injuries. So, during the time of treatment the petitioner also required good food and extra nourishment. The petitioner has produced Ex.P.7 - Discharge Summary issued by M.C. Orthopaedic, Arthroscopy & Joint Replacement Center, wherein petitioner has taken treatment as an inpatient from 28.07.2021 to 07.08.2021 i.e., for a period of 11 days. Considering the said facts, the Tribunal is of the view that compensation of ₹.400/- per day for 11 days to a sum of ₹.4,400/- is just and reasonable towards food, extra nourishment and medical attendant.
SCCH-11 16 MVC.No.2741/2022
(iv) Towards Conveyance:
The petitioner is the resident of Beeragondanahalli, Sompura Hobli, Nelamangala Taluk, Bengaluru Rural District and accident occurred on Kamalapura - Beeragondanahalli Road, Near Sompura Hobli, Nelamangala Taluk, Bengaluru, she has admitted for treatment at Hospital. In order to prove this aspect the petitioner has produced Discharge Summary marked at Ex.P.7. Considering the injuries and facts of the case, the tribunal is of view that the compensation of ₹.10,000/- is just and proper towards conveyance charges.
(v) Towards loss of income during treatment: The petitioner has contended that she was doing agricultural work, coolie and milk vending business and earning a sum of ₹.20,000/- per month. In order to prove her income, the petitioner has not produced any other documents to show that she was earning ₹.20,000/- per month. By considering the facts and circumstances of the case, the notional income of SCCH-11 17 MVC.No.2741/2022 the petitioner considered as ₹.15,000/-. On perusal of record, it appears that petitioner might not attended her work at least for 2 months. Accordingly, the petitioner is entitled for ₹.30,000/- (15,000/- x 2) towards loss of income during treatment.
(vi) Towards Loss of future earning capacity:
The petitioner has contended that due to accident, she was inpatient at hospital, and sustained permanent disablement. The petitioner also examined Dr.Nagaraj.B.N working as Orthopaedic Surgeon at Sai Ortho and Dental Center, Bengaluru and examined as PW.3. PW.3/Doctor examined the patient clinically and radiologically to assess disabilities. The doctor deposed that petitioner has sustained right femur fracture lower third and underwent ORIF with RFN nail and later discharged. The doctor has examined the petitioner for assessment of disability and assessed the disability of right lower limb at 43% and to the whole body at 14%. In order to prove the disability, doctor has produced SCCH-11 18 MVC.No.2741/2022 Ex.P.16 & 17 i.e., clinical report and X-ray films. The petitioner also examined Medical Record Officer at MC Orthopaedic Arthroscopy & Joint Replacement Center as PW.2 and got marked documents at Ex.P.12 to Ex.P.15 i.e., authorization letter, Police intimation, MLC and case sheet.
By considering the oral and documentary evidence and facts and circumstances of the case, it appears that the petitioner can do her work with difficulty. By considering the ratio laid down by the Hon'ble Supreme Court in Raj Kumar V/s. Ajay kumar and another and considering facts and circumstances of the case, the functional disability is assessed at 12%.
In order to prove age of the petitioner, she has produced Ex.P.8 - Notarized Copy of Aadhaar Card, wherein the date of birth is mentioned as 01.01.1963 and accident occurred on 28.07.2021, so the age of petitioner was 59 years as on the date of accident and same is taken into consideration for applying multiplier '09' as per Smt.Sarla SCCH-11 19 MVC.No.2741/2022 Verma case. As per ratio laid down by Hon'ble supreme court in Raj Kumar V/s. Ajay kumar and another, this tribunal not deducted personal expenses of petitioner out of her gross income. Hence, future earning capacity of the petitioner due to permanent disability works out as under : Annual Income before accident : (₹.15,000/- x 12) = ₹.1,80,000/- Loss of future earning p.a. (12% of prior annual income) ₹.21,600/-.
Multiplier applicable with reference to age - 09 Loss of future earnings - (₹.21,600/- x 09) = ₹.1,94,400/-. The petitioner is entitled for ₹.1,94,400/- under the head of loss of future earning capacity.
(vii) Deprivation of Future Amenities:- The doctor has opined that the petitioner sustained grievous injuries and she is unable to do her day-today activities as earlier. By considering the facts and circumstances of the case, the tribunal is of the view that compensation of ₹.10,000/- is just and reasonable under the head deprivation of SCCH-11 20 MVC.No.2741/2022 future amenities.
(viii) Towards Future Medical Expenses:
The doctor/PW.3 has opined that the petitioner needs another surgery for removal of implants, the estimate of this surgery is around ₹.60,000/-. By considering the facts and circumstances of the case ₹.40,000/- is just and reasonable under the head deprivation of future medical expenses.
16. Therefore, the petitioner is entitled for compensation as follows:
Sl.No. Particulars Amount
a. Towards injury pain and suffering ₹.55,000/-
b. Towards Medical Expenses ₹.1,30,684/-
c. Towards food and extra ₹.4,400/-
nourishment and medical
attendant
d. Towards conveyance ₹.10,000/-
e. Towards loss of income during ₹.30,000/-
treatment
f. Towards loss of future earning ₹.1,94,400/-
g. Deprivation of future amenities ₹.10,000/-
SCCH-11 21 MVC.No.2741/2022
h. Towards Future Medical Expenses ₹.40,000/-
Total compensation ₹.4,74,484/-
The petitioner is entitled for total compensation of ₹.4,74,484/-.
17. In MFA.No.100090 of 2014 C/w. MFA.No.25107 of 2013 between Vijay Ishwar Jadhav and others Vs. Ulrich Belchior Fernandes and another, the Hon'ble High Court of Karnataka at Page No.7 at Para No.15 held as follows:
"However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in 169 of the M.V.Act and therefore, the provisions of Section 34 of CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on Judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded."
In view of ratio and dictum laid down by the Hon'ble High Court of Karnataka in the above judgment, the petitioner is entitled for interest @ 6% per annum from the date of petition till its realization.
SCCH-11 22 MVC.No.2741/2022
18. The petitioner has filed petition against the respondents No.1 and 2. It is already held that the accident occurred due to rash and negligent riding of Motor Cycle bearing Regn.No.KA-02-HK-4926 by its rider. So, the respondent No.1 & 2 being the insurer and owner of the offending vehicle are jointly and severally liable to pay compensation to the petitioner. Hence, Issue No.2 answered Partly in the Affirmative.
19. Issue No.3: In view of the findings given on the above said issues, I proceed to pass the following:
ORDER The claim petition filed by the petitioner Under Section 166 of Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for compensation amount of ₹.4,74,484/- (Rupees Four Lakhs Seventy Four Thousand Four Hundred and Eighty Four only) with interest at 6% p.a., from the date of petition till realization. (future medical SCCH-11 23 MVC.No.2741/2022 expenses shall not carry any interest) Respondent No.1 & 2 are jointly and severally liable to pay compensation to petitioner. Respondent No.1 being the insurer is primarily liable to deposit the said compensation amount within a period of two months from the date of award.
In the event of deposit of the said compensation amount, 40% shall be deposited in the name of petitioner for a period of 3 years in any nationalized bank or scheduled bank and the remaining 60% shall be released in favour of petitioner on proper identification.
After deposit of compensation amount with interest thereon disburse amount as mentioned above as per guidelines laid down by Hon'ble High Court in MFA.No.2509/2019 (ECA) and as per General Circular No.2/2019 dated 19.8.2019.
The petitioner hereby directed to produce particulars of her Bank Account, with name of Bank, IFSC Code, Account Number with copy of First Page of Bank Pass Book which contained SCCH-11 24 MVC.No.2741/2022 compulsorily photographs of petitioner, which is duly attested by concerned Bank. Further petitioner shall produce PAN Card/Aadhaar Card.
In case of deposit of awarded amount with interest thereon by respondent, the petitioner is entitled to receive amount as mentioned above after expiry of period provided for filing an appeal.
Bank shall not advance loan on such FD, and shall not cause premature release of FD without permission from the Tribunal.
Bank shall release amount along with interest thereon in favour of petitioner on proper verification and identification or credit said amount to her account after expiry of three years period of deposit, without waiting for further order of court. The Advocate fee is fixed at ₹.1,000/-. Draw up award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 01st day of April, 2024.) (RAGHAVENDRA.D) I ADDL.SMALL CAUSES JUDGE & ACMM & MEMBER - MACT, BENGALURU SCCH-11 25 MVC.No.2741/2022 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS:
PW.1 Smt.Nagarathnamma
PW.2 Sri.Srinivasa.A.G.
PW.3 Dr.Nagaraj.B.N.
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot Panchanama
Ex.P4 IMV Report
Ex.P5 Wound Certificate
Ex.P6 Charge Sheet
Ex.P7 Discharge Summary
Ex.P8 Notarized copy of Aadhaar Card
Ex.P9 Medical Bills
Ex.P10 Medical Prescriptions
Ex.P11 X-ray films
Ex.P12 Authorization letter
Ex.P13 Police Intimation
SCCH-11 26 MVC.No.2741/2022
Ex.P14 MLC
Ex.P15 Case Sheet
Ex.P16 Clinical Report
Ex.P17 X-ray films
LIST OF WITNESSES ON BEHALF OF RESPONDENTS :
RW.1 Sri.Suresh.G. LIST OF DOCUMENTS ON BEHALF OF RESPONDENTS :
Ex.R.1 Copy of insurance policy
Ex.R.2 Copy of Complaint and Postal receipt
Ex.R.3 Police Intimation
Ex.R.4 MLC
Ex.R.5 Inquest Report
Ex.R.6-9 Photographs
Ex.R.10 Speed Post Cover
Ex.R.11 Report
Ex.R.12 Certificates U/s.65-B
Ex.R.13 CDs
(RAGHAVENDRA.D)
I ADDL.SMALL CAUSES JUDGE & ACMM
& MEMBER - MACT, BENGALURU
Digitally signed
by D
D RAGHAVENDRA
RAGHAVENDRA
Date: 2024.04.04
15:52:07 +0530