Bangalore District Court
Kumari Thunga H.S vs Sri.Anuja Aggarwal on 11 January, 2022
IN THE COURT OF THE XI ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-12)
Present: Shri. MOHAMED ARIFULLA C.F.
B.Sc., LL.B.,
XI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Member, MACT12, Bengaluru.
Dated this the 11th day of January, 2022
MVC. NO.3539/2019
Petitioner : Kumari Thunga H.S.
D/o Shivappa H.S.
Aged about 32 years,
R/at No.51, 4th Cross, 7th Main Road,
5th Block, Koramangala,
Bangalore560034.
(By Sri.N.P.K. Advocate)
V/s
Respondents: 1. Sri.Anuja Aggarwal
S/o.Late Vipin Kumar Aggarwal
Aged about 25 years,
R/at No.84/A, K B Hanumegowda,
S/o.Bachana, Kodagalanatti Village,
Hunasamaranahalli,
Bengaluru North Taluk 562 157.
(By.Sri.NCS, Advocate)
2. Mr. Ashish
S/o.Rajbir Singh,
Aged about 26 years,
R/at No.45/28, Jawahar Nagar,
Near CRA College, Sonipat,
Haryana State.
(By.Sri.J.S. Advocate)
SCCH-12 2 MVC No.3539/2019
JUDGMENT
This is a claim petition filed by the petitioner claiming compensation of Rs.10,00,000/ under Section 166 of M.V.Act, 1989 on account of accident met by petitioner on 02092018.
2. The brief facts of the case of the petitioner is that, on 02092018 at about 3.00 p.m., she was crossing the road from West side of Sadhashivanagar 10th Main Road to East side Palace Grounds, Thripura Vasini Gate No.2 Palace Grounds, carefully and cautiously observing traffic rules and regulations, at that time, the rider (respondent No.1) of Bullet Motorcycle bearing No.HR10V4188 rode the same at high speed, in a rash and negligent manner, lost control over his vehicle and dashed against her. Due to the impact, the petitioner fell down and sustained grievous injuries. Immediately, she was shifted to Aster hospital, Bengaluru, wherein she took first aid, then shifted to Columbia Asia hospital, Bengaluru, wherein she took treatment as an inpatient and spent huge money towards medical treatment.
3. The petitioner was hale and healthy and was working in a Private firm at Daiwik Creations Pvt.Ltd., and earning Rs.25,000/ per month. Due to the accidental injuries, she was unable to attend to her work and has lost income. The Sadhashivanagar Traffic Police have registered a criminal case against the rider of Bullet motorcycle bearing SCCH-12 3 MVC No.3539/2019 No.HR10V4188 in crime No.75/2018 under Section 279 and 338of IPC, R/w Sec.146 and 196 of MV Act. Therefore the respondent 1 & 2 are liable to pay the compensation and hence prays to grant compensation of Rs.10,00,000/ with interest.
4. After service of notices, the respondent no.1 and 2 have appeared before this court through their counsels and they have filed written statements separately.
The respondent no.1 in his written statement contended that, the petition filed by the petitioner is not maintainable either in law or on facts of the case. Further stated that the alleged accident had not occurred due to negligence on his part, but it was due to negligence on the part of petitioner. Further contended that respondent No.2 is the owner of the offending motorcycle and this respondent was riding the motorcycle in a slow and careful manner as the said road is a busy traffic road and he was having valid driving license to ride the motorcycle. Further denied the manner of accident, age, income and avocation of the petitioner and prayed to dismiss the petition against it. Further stated that the compensation claimed is highly excessive, exaggerated and imaginary and unreasonable and prays to dismiss the claim petition against him.
5. The respondent no.2 in his written statement contended that, the petition filed by the petitioner is not maintainable either in law or on facts. Further stated that the SCCH-12 4 MVC No.3539/2019 petitioners herself was solely responsible for the causing the accident as she was negligently crossing the road. Further he has denied the entire petition averments. Further denied the manner of accident, age, income and avocation of the petitioner, injuries sustained by her, treatment taken by her, expenses incurred by her. Further stated that the compensation claimed is highly exorbitant and fanciful. Further this respondent has contended that he has sold the offending vehicle to the 1st respondent vide signed proper forms and sale agreement on 10022018 and hence he is not liable to pay any compensation and prays to dismiss the claim petition against him.
6. On the basis of the above pleadings, my predecessorsinoffice have framed the following;
ISSUES
1. Whether the petitioner proves that, on 02092018 at about 3.00 p.m., she was pedestrian and was crossing the road from west side Sadashivanagar, 10th Main road to east side Palace grounds at Gate No.2 carefully, at that time, a Bullet motorcycle bearing No.HR10V4188 ridden by its rider came at high speed in a rash and negligent manner from western junction towards Mekhri circle direction and lost control over his bullet motorcycle and dashed to the petitioner and caused accident, due to which, the petitioner fell down and sustained grievous injuries all over her body?
SCCH-12 5 MVC No.3539/20192. Whether the petitioner is entitled for compensation as sought for? If yes, How much and from whom?
3. What Order or Award?
7. In order to prove the above issues the petitioner got herself examined as P.W.1 and also got marked documents at Ex. P1 to 18 and during crossexamination of RW1 Ex.P.19 is marked.
8. On the other hand the respondent no.1/rider got examined himself as R.W.1 and got marked documents a Ex.R.1 and 2. The respondent no.2 has not adduced any oral and documentary evidence on his behalf.
9. Heard arguments of both side and perused the entire materials placed on record and my answers to the above issues are as follows:
Issue No.1 : In the partly Affirmative
Issue No.2 : In the Partly Affirmative
Issue No.3 : As per final order
for the following;
REASONS
10. ISSUE NO.1 : It is the case of the petitioner that, on 02092018 at about 3.00 p.m., she was crossing the road from West side of Sadhashivanagar 10th Main Road to East side Palace Grounds, Thripura Vasini Gate No.2 Palace SCCH-12 6 MVC No.3539/2019 Grounds, carefully and cautiously observing traffic rules and regulations, at that time, the rider (respondent No.1) of Bullet Motorcycle bearing No.HR10V4188 rode the same at high speed, in a rash and negligent manner, lost control over his vehicle and dashed against her. Due to the impact, the petitioner fell down and sustained grievous injuries. Immediately, she was shifted to Aster hospital, Bengaluru, wherein she took first aid, then shifted to Columbia Asia hospital, Bengaluru, wherein she took treatment as an inpatient and spent huge money towards medical treatment.
11. In order to prove the above facts in issue, the petitioner got examined herself as P.W.1 and she has filed chief examination affidavit by reiterating the averments made in the petition and in support of her oral evidence, she got marked police and medical documentary evidence which have been marked as Ex.P.1 true copy of complaint, Ex.P.2 true copy of FIR, Ex.P.3 true copy of charge sheet, Ex.P.4 true copy of mahazar, Ex.P.5 true copy of sketch, Ex.P.6 true copy of wound certificate, Ex.P.7 Certified copy of order sheet in CC.5654/2018, Ex.P.8 Medical bills, Ex.P.11 and 12 discharge summaries, Ex.P.13 certified copy of DL of respondent No.1 and Ex.P.14 certified copy of RC.
12. Respondent no.1 and 2 have stated that the accident did not take place due to the rash and negligent manner of rider of offending motorcycle and accident took place due to the negligence of the petitioner. The respondent No.2 has contented that he had sold the offending vehicle on SCCH-12 7 MVC No.3539/2019 10022018 to the respondent No.1 i.e. prior to the date of accident and as such he is not liable to pay compensation. Further respondent No.1 contended that there was no negligence on his part as he was riding the motorcycle slowly and cautiously. However the Ex.P.1, to 5 which are the police records disclose that when the petitioner was crossing the road, the rider / respondent No.1 rode his vehicle in a negligent manner and lost control over his vehicle and dashed to the petitioner, due to this the petitioner sustained injuries. This facts discloses that the rider i.e. respondent No.1 rode the offending motorcycle in a negligent manner caused accident. The petitioner who was crossing the road, where there was no pedestrian crossing and she was not supposed to cross the road and she was also contributed her part of negligence in the accident.
13. The rider /respondent No.1 has got himself examined as RW.1 and he has stated that the accident took place due to the negligence of the petitioner. On going through the oral and documentary evidence of both parties to the case, it shows that there was major part of negligence on the part of the respondent No.1, though he was deposed before the court that there was no negligence on his part. The rider of the motorcycle could have avoided the accident if he had seen the petitioner, who was crossing the road, but he rode the motorcycle with high speed and lost control over it.
14. The learned counsel for the respondent No.1 has canvassed Judgment of our Hon'ble High Court reported in SCCH-12 8 MVC No.3539/2019 2015 (1) AKR 89 between S.Narayana Vs. M G Ravichandran and another, wherein it is held that, Contributory negligence - Determination
- Accident occurred when claimant was crossing road - Evidence showing that he was crossing road even after seeing car coming from opposite direction - In city like Bengaluru vehicles are continuously running one after another - Feb up by waiting, claimant might have attempted to cross road and in said process, he had also contributed towards accident to some extent Considering this fact, driver of offending vehicle i.e. car and claimant contributed held liable to extent of 85% and 15% respectively.
He has also canvassed another Judgment of our Hon'ble High Court reported in ILR 2004 KAR 1104 between Koosappa Poojari Vs. K.Sadabba and others, wherein it is held that, CONTRIBUTORY NEGLIGENCE - Claimant had crossed the road where he was not supposed to cross - HELD - Certain degree of contributory negligence will have to be attributed to him - If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he can not claim any SCCH-12 9 MVC No.3539/2019 specific precedence and responsibility for causing the accident - Pedestrian has to share the negligence along with the driver.
He has also canvassed Judgment of our Hon'ble High Court reported in 2013 (2) AKR 577 between BMTC Central office Vs. B.N.Nagesh, wherein it is held that, Contributory negligence - Determination
- Specific case of claimants supported by eye witness was that deceased was crossing road from East to West and she had almost crossed 75% of road and at that time, offending vehicle driven in rash and negligent manner and not taking any caution to slow down vehicle while taking right turn, that too while entering main road had dashed against deceased on account of which, she sustained grievous injuries and succumbed to same - Finding of contributory negligence of driver to extent of 75% recorded by Tribunal proper.
15. In the above reported Judgments, our Hon'ble High Court has made a proposition of law that if the accident is occurred at the time of crossing the road by the claimant, claimant is also responsible for the accident. Therefore, the part of negligence is also attributed on the part of the petitioner. The proposition of law laid down by our Hon'ble SCCH-12 10 MVC No.3539/2019 High Court in the above reported Judgments is aptly applicable to the present case on hand. As such this tribunal comes to conclusion that the respondent No.1 contributed negligence at 80% and the petitioner at 20%.
16. After considering all the facts and circumstances of the case, I came to the conclusion that, the petitioner has sustained injuries in the accident due to the rash and negligent riding of respondent No.1 and also due to the negligence of the petitioner. Accordingly, I answer Issue No.1 in the partly Affirmative.
17. ISSUE NO.2: As already discussed above, the petitioner has proved the accident and therefore, the petitioner is entitled for compensation. As per Ex.P.6 wound certificate, she had sustained compound comminuted fracture shaft upper tibia and compound comminuted fracture shaft right upper fibula and the said injuries are grievous in nature. She took treatment as an inpatient in Columbia Asia hospital and later she was discharged with follow up advice.
18. As far as the age of the petitioner is concerned, the petitioner has stated that she was 32 years and she was working in a private firm at Daiwik Creations Pvt.Ltd., and was earning Rs.25,000/ per month. Due to the accidental injuries, she was unable to attend to her work and has lost income. To substantiate her contention, petitioner has produced Ex.P.15 Salary slips, Ex.P.16 letter issued by Daiwik creations, Ex.P.17 relieving letter and Ex.P.18 Bank account statement pertaining to her avocation. As per police and SCCH-12 11 MVC No.3539/2019 other medical documents the age of the petitioner is 32 years as on the date of accident. As such, this Tribunal considers the age of the petitioner as "32"years.
19. On considering the oral evidence of PW.1 and documentary evidence which have been marked as Ex.P.6 wound certificate, Ex.P.11 and 12 discharge summaries, Ex.P.6, 11 and 12, it is found that the petitioner has sustained compound comminuted fracture shaft upper tibia and compound comminuted fracture shaft right upper fibula and she took treatment as an inpatient.
20. The petitioner has not got examined the Doctor who treated the petitioner to prove the disability suffered by her due to the accidental injuries. Though, the petitioner has not got examined the doctor, she has produced wound certificate, medical bills and discharge summaries. This fact clearly goes to show that she took treatment in the hospital. The wound certificate shows that, the injuries sustained by the petitioner are grievous injuries. However, the petitioner has stated in her evidence affidavit that she sustained grievous injuries, but not got examined doctor. The Medical bills produced by the petitioner at Ex.P.8 shows that she spent Rs.4,07,541/ towards medicines and these documents clearly disclose that the petitioner has spent the said amount for the treatment due to the injuries sustained by her. The Ex.P.11 and 12 discharge summaries disclose that she had admitted on 02092018 and discharged on 07092018 and again she was admitted in the same hospital on 09092019 and discharged on 11092019.
SCCH-12 12 MVC No.3539/2019This fact discloses that petitioner took treatment for a long period and also implants were fixed in the initial stage and later they were removed at the time of 2 nd time admission in the hospital. The discharge summaries also disclose that she had undergone surgeries for the injuries sustained by her in the accident. As, such, it is just and fair to award Rs.5,00,000/ towards the head of medical bills, treatment and other incidental charges.
21. As already discussed in the issue No.1, the respondent No.1 had contributed negligence to an extent of 80% and the petitioner had contributed negligence to the extent of 20%. The respondent No.1 admitted in the evidence that he is the owner of the offending vehicle as on the date of accident and he has produced his DL and RC at Ex.R.1 and 2. These documents discloses that he was the owner of the offending vehicle at the time of accident and therefore, he is liable to pay compensation whereas the respondent No.2 who was the previous owner of the offending vehicle is absolved from the liability. As such, the respondent No.1 is liable to pay 80% compensation and the compensation to an extent of 20% is deducted as there is a contributory negligence on the part of petitioner. Therefore, the respondent No.1 is liable to pay compensation of Rs.4,00,000/.
22. In view of the above discussion, I am of the opinion that the Petitioner is entitled for compensation of Rs.4,00,000/ along with interest at the rate of 6% p.a., from SCCH-12 13 MVC No.3539/2019 the date of filing of petition till realization. Hence, I answer Issue No.2 in Partly Affirmative.
23. ISSUE NO.3: In view of the above discussion on Issue no.1 and 2, I proceed to pass the following;
ORDER The petition filed by the petitioner U/Sec. 166 of M.V Act is hereby partly allowed with cost.
The petitioner is entitled to get
compensation of Rs.4,00,000/ with
interest at the rate of 6% p.a. from the date of petition till its deposit. The respondent No.1 is liable to pay compensation.
Respondent No.1 is directed to deposit the compensation amount with interest within a period of two months from the date of award.
Since the medical expenses are very high and therefore entire amount shall be paid to petitioner on proper identification through Epayment.
Advocate fee is fixed at Rs.1,000/.
SCCH-12 14 MVC No.3539/2019Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 11 th day of January, 2022) (Mohamed Arifulla C.F) XI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURES List of witnesses examined for the petitioners:
P.W.1 : Thunga H.S. List of documents got marked for the petitioners:
Ex.P.1 : True copy of complaint
Ex.P.2 : True copy of FIR
Ex.P.3 : True copy of charge sheet
Ex.P.4 : True copy of mahazar
Ex.P.5 : True copy of sketch
Ex.P.6 : True copy of wound certificate
Ex.P.7 : Certified copy of order sheet
Ex.P.8 : Medical bills
Ex.P.9 : Cab bills
Ex.P.10 : Cash receipts
Ex.P.11 &12 : Discharge summaries
Ex.P.13 : Certified copy of DL
Ex.P.14 : Certified copy of RC
Ex.P.15 : Salary slips
Ex.P.16 : Appointment Letter
SCCH-12 15 MVC No.3539/2019
Ex.P.17 : Relieving Letter
Ex.P.18 : Bank Account statement
Ex.P.19 : Certified copy of indemnity bond.
List of witnesses examined for the respondents:
R.W.1 : Anuja Agarwal List of documents marked for the respondents:
Ex.R.1 : Notarized copy of DL
Ex.R.2 : Notarized copy of RC.
(Mohamed Arifulla C.F)
XI Addl. Small Causes Judge
& ACMM, Bengaluru.