Bangalore District Court
Nagesh.N vs The Branch Manager on 31 December, 2021
KABC020043142020
BEFORE THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 31st DAY OF DECEMBR 2021
PRESENT : Smt. Prabhavati M. Hiremath,B.A., L.L.B.(Spl.)
MEMBER, PRL. M.A.C.T.
M.V.C. No.743/2020
PETITIONER: Nagesh.N,
S/o. Ningaiah,
Aged 37 years.
Presently residing at
No.93/1, Nehru Road,
New Guddadahalli,
Kuvempu Nagar,
Near Government Electric Factory,
Bangalore - 560 026.
(By Sri.R.Shivakumar..... Advocate)
V/s
RESPONDENTS: 1. The Branch Manager,
IFFCO TOKIO General Insurance
Company Limited,
KSCMF Building, 3rd Floor,
No.8, Cunningham Road,
Bengaluru - 560 052.
SCCH-1 2 MVC No.743/2020
(Package policy No.113Z1MRWU/P
400/M7642964 valid from 07.05.2019
To 06.05.2020)
(By Sri. B.Anjaneyalu..... Advocate)
2. Mr. Syed Nayeem,
S/o. Syed Vazeer Sardar,
No.367, 15th cross,
Near Al Kareem Masjid,
Rashad Nagar, Govindapura,
Bangalore - 560 045.
(Exparte)
JUDGMENT
This petition is filed under Section 166 of the Motor Vehicles Act, 1988.
2. Brief facts of the petition are as follows: On 30.01.2020 at about 11.55 am., the petitioner was proceeding in two wheeler bearing reg.No.KA41EG7340 on 9th cross, Chamarajpet, at that time, private bus bearing reg.No.KA20C8748 came in high speed in a rash or negligent manner, when petitioner reached opposite to Indane Petrol Bunk from behind a bus hit the two wheeler, due to the dash petitioner fell down and sustained injury on his head, hand, legs and foot region, ankle region and SCCH-1 3 MVC No.743/2020 other parts of the body. Immediately after the accident he was shifted to Joshi Hospital, Chamarajpet. After taking first aid treatment he was shifted to Brindhavan Hospital for better treatment and admitted as an inpatient from 03.02.2020 to 05.02.2020. After investigation it is revealed that he has sustained bimalleolar comminuted fracture right ankle, multiple abrasions deformity, swelling, tenderness, abnormal mobility and crepitus and he has underwent ORIF with semitubular plate - 7 holed for distal fibula + CC screws fixation for medial malleolus right ankle under spinal anesthesia. Prior to the accident petitioner was hale and healthy and was doing business of Panipuri and Bhel Puri Vendor and earning Rs.18,000/ per month. He has spent Rs.50,000/ towards medical expenses and nourishment. After the accident he was left with permanent disability he is unable to lead normal life. Respondent No.1 being the insurer and respondent No.2 being the owner are jointly and severally liable to pay the compensation. Total compensation of Rs.9 lakhs is claimed under various heads.
SCCH-1 4 MVC No.743/2020
3. After service of notice of this petition, respondent No.1 appeared through its advocate and Respondent No.2 remained absent and placed exparte.
4. The brief facts of written statement filed by the respondent No.1 as follows: This petition is not maintainable against the first Respondent. Driver of the insured bus is a proper person to speak regarding the manner in which the alleged accident took place and he has not impleaded the driver of the insured bus as party to present petition and it is bad for nonjoinder of proper and necessary party. The entire averments in petition are denied in toto. Bus is insured with the first respondent, liability of the first Respondent is subject to terms and conditions of the policy. Injury sustained by the petitioner, alleged medical expenses incurred by him, income of the petitioner prior to the accident all are denied in toto. The Respondent No.2 has not complied with the mandatory requirements Section 134(C) of the Motor Vehicle Act. The police have not SCCH-1 5 MVC No.743/2020 complied with the mandatory requirements of Section 158 (6) of the Motor Vehicle Act. Rider of the Motor Cycle i.e., petitioner has no valid driving licence to ride the Motor Cycle and he was not wearing safety helmet at the time of accident. Driver of the insured bus also had no valid driving licence to drive the bus. The owner of the insured bus willfully entrusted the bus to a person who had no valid driving licence, there was violation of traffic rules. Therefore Respondent No.1 is not liable to pay any compensation and prayed to dismiss the petition.
5. From the above said pleadings of the parties following issues are settled for trial by my predecessor in Office :
1) Whether the petitioner proves that he sustained injuries in a Motor Vehicle Accident that occurred on 30.01.2020 at about 11.55 am., opposite to Indane Petrol Bunk, 9th cross, Chamarajpet, Bangalore City, within the jurisdiction of Chickpet Traffic Police Station on account of rash and negligent driving of the Bus bearing reg.No.KA20C8748 by its driver when the petitioner was riding two wheeler bearing reg.No.KA41EG7340?SCCH-1 6 MVC No.743/2020
2) Whether the 1st Respondent proves that the accident has occurred on account of rash and negligent driving of the petitioner himself?
3) Whether the petitioner is entitled for compensation? If so, how much and from whom?
4) What order?
6. In support of the petitioner's case, the petitioner himself got examined as PW 1 and he has examined the doctor as PW 2. In all 19 documents are got marked on behalf of the petitioner as Ex.P.1 to P.19. In support of the Respondents' case Legal Assistant of the Insurance Company is examined as RW.1 and got marked policy as Ex.R.1.
7. Learned Advocate for Respondent No.1 has filed an application under Section 170 of the Motor Vehicles Act. After conclusion of his argument and same is allowed as Respondent No.2 owner of the vehicle has remained absent and placed exparte.
8. Heard arguments on both sides.
SCCH-1 7 MVC No.743/2020
9. For the reasons stated in the subsequent paragraphs, I answer the above Issues as under: Issue No.1 : In the affirmative, Issue No.2 : In the negative, Issue No.3 : Accordingly, Issue No.4 : As per final order, for the following: REASONS
10. ISSUE No.1 AND ISSUE No.2: These two issues are with reference to his negligence on the part of either riding of the motor cycle or driving of bus. Therefore to avoid repetition of discussions of evidence these two issues are taken into consideration together.
11. It is the case of the petitioner that due to rash or negligent act of driving on the part of bus driver accident occurred. On the contrary during the course of cross examination of PW.1 and from the police records it is proved that, at the time of accident petitioner was riding the vehicle along with two pillion riders i.e., wife and child. During the course of cross examination of PW.1 he has admitted that, at the time of accident his daughter was SCCH-1 8 MVC No.743/2020 aged about 12 years. The learned Advocate for Respondent No.1 vehemently argued that fact of riding of bike with two pillion riders contribute the negligent act on the part of petitioner also.
12. To prove the negligent act of driving on the part of bus driver petitioner relied on his own oral evidence and police records. Ex.P.1 - FIR, Ex.P.2 - complaint, Ex.P.4 - spot panchanama with crime details form, Ex.P.5 - IMV report and Ex.P.7 - Chargesheet.
13. From going through the said police records it is clear that, complaint was lodged by petitioner on 05.02.2020 while he was taking treatment in Brindhavan Areion Hospital, Bengaluru. On receipt of intimation the Investigating Officer has visited the Hospital and recorded the statement of the complainant. Even though accident occurred on 30.01.2020 complaint was received on 05.02.2020.
14. Learned advocate for Respondent No.1 vehemently argued that there is delay on lodging the SCCH-1 9 MVC No.743/2020 complaint and as per Ex.P.9 - Joshi Hospital records history of the injury is mentioned as "RTA was traveling in 2 wheeler hit by 4 wheeler from behind near T.R.Mill petrol bunk around 11.35 am., on 30.01.2020". During the course of cross examination of PW.1 he has admitted that in the history of the injuries Joshi hospital is mentioned as hit by 4 wheeler. Therefore delay in lodging the complaint is for implication of the bus. Bus is not involved in the accident.
15. From going through the above said documents it is clear that, in the history it is mentioned as hit by 4 wheeler. PW.1 during the course of cross examination has deposed that, public gathered at the spot have shifted him to the hospital and they have furnished information.
16. In the objection statement of respondent No.1 has specifically contended that due to negligent act on the part of petitioner himself accident occurred. In para 11 of the written statement of Respondent No.1 averred that without following traffic rules and regulations and also not giving way to bigger vehicle suddenly went to the middle of SCCH-1 10 MVC No.743/2020 the road and came across the running bus. The police, without proper investigation deliberately fixed insured bus because bus is a bigger vehicle. From this pleading Respondent No.1 has not disputed the presence of bus at the scene of offence.
17. On the contrary the learned advocate for petitioner relied on the decision reported in 2011 ACJ 911 (Ravi Vs. Badrinarayan and others), wherein the Hon'ble Apex Court has held that "lodging of FIR certainly proves factum of accident but delay in doing so cannot be the main ground for rejecting claim application".
18. In that reported case, injured was the minor boy sitting on the side of the road in front of his house, accident was witnessed by the father of the injured and another person and they took the injured to the hospital, next day police came to the hospital but no FIR was recorded as father of injured was under mental agony and stress and he was more concerned to get the medical treatment to his son. In that case, complaint was lodged SCCH-1 11 MVC No.743/2020 after 3 months of the accident. Considering the facts and situations of that case, their Lordships held that delay in lodging complaint cannot be a main ground for rejecting the application.
19. In the complaint it is mentioned that as petitioner was shifted to hospital, he was taking treatment and thereafter he has went to house for rest, as he sustained severe pain in the leg he has came to Bengaluru therefore it is not possible for either himself or to his wife to lodge the complaint. From the medical records it is clear that, even though on 30.01.2020 after taking treatment in Joshi Hospital he was discharged but he has taken Xray on 02.02.2020 from Joshi Hospital thereafter he has admitted in Benglauru at Brindhavvan Areion Hospital and underwent surgery. Therefore, the delay in lodging complaint is explained by the petitioner properly as information has not furnished to the doctors of Joshi Hospital by the petitioner therefore, hit by 4 wheeler in history of the petitioner mentioned in Joshi Hospital itself SCCH-1 12 MVC No.743/2020 is not sufficient to come to conclusion that bus is not involved in the accident. On the contrary after seizure of bus it was subjected to RTO Inspection. As per the RTO Inspection there was a scratch in the front right bumper of the bus which was not explained by the respondent No.1. In all other medical records history is mentioned as hit by bus therefore from the evidence of PW.1 coupled with IMV report and other medical records the petitioner proved that private bus was involved in the accident which is owned by Respondent No.2 and insured with the Respondent No.1.
20. To prove rash or negligent act of driving on the part of the bus driver, petitioner once again relied on his own oral evidence and police records. In Ex.P.4 spot panchanama itself sketch was drawn. At the time of accident petitioner was taking turn towards northern side from western side, bus was proceeding from northsouth. Scene of offence is shown as 'A' in the sketch it is 20 feet away from eastern edge of the road and 5 feet away from western edge of the road. Vehicles are required to move on SCCH-1 13 MVC No.743/2020 the left side of the road. Left side of the road to the petitioner is western portion of the road and left side of the road for bus is the eastern side. The scene of offence is 20 feet away from eastern edge from which it is clear that the bus driver has deviated towards right side of the road and due to his negligent act accident occurred. Therefore, on conclusion of investigation Chargesheet is filed against the bus driver. Therefore it cannot be said that as bus is big vehicle Chargesheet is filed against the driver of the bus. From the evidence of PW.1 and Ex.P.4 - Spot panchanama and other police records petitioner proved that due to rash or negligent act of driving on the part of bus driver accident occurred.
21. It is the case of the Respondent No.1 that there is contributory negligence on the part of petitioner also, as he was driving along with the two pillion riders. Now the question is whether in view of the admitted facts of the case as per police records and admission given by the PW.1 referred above he was driving along with two pillion riders SCCH-1 14 MVC No.743/2020 itself is sufficient to come to conclusion that there is a contributory negligence on the part of petitioner is to be seen.
22. On this point the learned Advocate for petitioner has relied on the Judgment reported in 2020 ACJ 2163 (Shriram General Insurance Co. Ltd., Vs. Beant Kaur and others).
23. Similar point is considered in another Judgment of the Supreme Court in Civil Appeal No.79 of 2020 between (Mohammed Siddique and another Vs. National Insurance Co., Ld., and others) reported in AIR 2020 SC
520.
24. From going through the said Judgment it is clear that in para 7 of the said judgment facts are referred, in that case also rider of the motor cycle succumbed to injuries. In that accident contention was taken that " deceased was also guilty of contributory negligence, as he was riding a motor cycle with two other persons.
Therefore, the High Court came to the conclusion that an amount equivalent to SCCH-1 15 MVC No.743/2020 10% has to be deducted towards contributory negligence ".
The same was challenged before Hon'ble Apex Court.
In para 13 of the said Judgment their lordship held that " The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle ".
In the said para itself their lordship further observed as under:
" unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim ".SCCH-1 16 MVC No.743/2020
25. From going through the above said decision mere proof of riding of vehicle along with 2 pillion riders itself is not sufficient that it amounts to violation of rules but further proof which resulted in causing an accident is required. The said fact is not proved in this case. Therefore it cannot be said that there is a contributory negligence on the part of the petitioner also.
26. It is a specific case of the petitioner that in the said accident he sustained injury. For that he relied on medical records Ex.P.6 - wound certificate, Ex.P.8 and 9 are discharge summaries. Ex.P.11 to 13 are positive photographs, Ex.P.14 - medical bills, Ex.P.18 - case sheets produced PW.2.
27. From going through the above said medical records it is clear that petitioner has sustained multiple fractures in ankle and other injuries. Therefore, Issue No.1 is answered in the affirmative and Issue No.2 is answered in the negative.
SCCH-1 17 MVC No.743/2020
28. ISSUE No.3: In this case, the petitioner has claimed a total compensation of Rs.9 lakhs on various heads. To prove what are the injuries sustained by petitioner in the accident he has relied on above said medical records and oral evidence of PW.1.
29. In the decision reported in (2011) 1 SCC 343 (Raj Kumar Vs. Ajay Kumar and another) Division Bench of the Hon'ble Apex Court has laid down on what grounds compensation is required to be awarded in personal injury case. In para 6 of the said judgment their Lordships has demarcated the heads in which compensation is required to be considered are reads as under:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment SCCH-1 18 MVC No.743/2020
(b) Loss of future earnings on account of permanent disability.
(iii) future medical expenses Nonpecuniary damages(General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity)
30. From going through the above said decision, it is clear that under the pecuniary damages expenses relating to the treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure are required to be considered with. In the second head loss of earning and other gains of the injured person is required to be considered. In the background of principle laid down by their Lordships in the above said decision we can consider what amount the petitioner is entitled for compensation.
SCCH-1 19 MVC No.743/2020
31. From going through the above said documents it is clear that, petitioner has sustained bimalleloar communited fracture of right ankle which is grievous in nature. As per Ex.P.9 petitioner has sustained multiple abrasion over ankle and other parts of the body. Petitioner has underwent surgery and as per Ex.P.9. Even though they have suggested by doctor that there is a need of surgery once swelling subsides.
32. During the course of cross examination of PW.1 he has admitted that, against the advice of the doctor he was discharged from the hospital but doctor advised for surgery only after swelling subsides. Therefore, it cannot be said that there is negligence in not taking proper medical treatment by the petitioner, for taking rest he was gone to the house, thereafter he has approached doctor and subsequently he has admitted to the hospital at Bengaluru. Considering the nature of injury sustained by the petitioner, length of treatment taken by the petitioner, SCCH-1 20 MVC No.743/2020 compensation of Rs.30,000/ is awarded towards pain and sufferings.
33. From Discharge summary at Ex.P.8 petitioner has taken treatment as inpatient for a period of 3 days. Therefore, an amount of Rs.3,000/ is awarded to the petitioner under the head Food, nourishment and incidental charges.
34. It is the case of the petitioner that he has spent huge medical expenses for his treatment. He has produced Ex.P.14 - 33 medical bills. From going through the said medical bills it is clear that, Sl.No.1 final bill issued at the time of discharge, in it pharmacy bills are not included. Ex.P.15 - Xray charges issued by Joshi Hospital. Chamarajpet on 05.02.2020. Admittedly till 7.47 pm., petitioner was taking treatment at Brindhavvan Hospital, Bengaluru therefore there is no chances of taking Xray on 05.02.2020 at Joshi Hospital, Chamarajpet. Excluding that bill to doubt the genunity of the other bills in Ex.P.14 series nothing is on record. The total cost of Rs.55,673/ SCCH-1 21 MVC No.743/2020 by rounding of figure an amount of Rs.55,675/ is awarded to the petitioner towards medical expenses.
35. It is the case of the petitioner that he has sustained permanent physical disability. For that he has relied on evidence of PW.2. During the course of cross examination of PW.2 he has clearly admitted that, fracture is united. From his evidence it is clear that he has not assessed the functional disability and during the course of cross examination it is suggested to him that the disability percentage will not be more than 5% towards restriction of movements in ankle. Considering the evidence of PW.2 and nature of injury sustained by the petitioner and present avocations of the petitioner that he cannot sit crossed leg, difficulty in squatting and there is swelling at ankle. Considering the said facts the percentage of disability is taken at 5%. It is the case of the petitioner that he was earning Rs.18,000/ per month by selling paanipuri and Bhel puri but except oral evidence nothing is on record. Considering the said facts his notional income is taken at SCCH-1 22 MVC No.743/2020 Rs.13,000/, 5% loss comes to Rs.650/ per month (Rs.13,000/ X 5/100) and its annual loss comes to Rs.7,800/ (Rs.650/ x 12). From Ex.P.10 - driving licence it is clear that date of birth of petitioner is 10.06.1983. Therefore as on the date of accident, he was 27 years. As per 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation) the multiplier applicable to the present case is '17'. Therefore, petitioner is entitled for Rs.1,32,600/ (Rs.5,760/ X 17) towards Loss of income due to permanent disability sustained as a result of injuries.
36. It is the case of the petitioner that he has taken follow up treatment by using auto by paying Rs.200/ per trip. Considering these aspects, the petitioner is awarded a compensation of Rs.2,000/ towards Transport Charges.
37. Considering the nature of injuries sustained by the petitioner. The petitioner may not have been in a position to carrying his routine work for a minimum period of 2 months. Therefore, the petitioner is awarded a compensation of Rs.26,000/ (Rs.13,000/ X 2) is awarded SCCH-1 23 MVC No.743/2020 to the petitioner at the rate of Rs.13,000/ per month towards loss of income during the laid up and treatment period.
38. As per the evidence of PW.2 implants are in situ. Therefore an amount of compensation of Rs.25,000/ is awarded to the petitioner towards future medical expenses of removal of implants.
39. The details of compensation, to which the petitioner is entitled is as under: Sl.No. Head of Compensation Amount 1 Pain and Sufferings 30,00000 2 Food, nourishment and 3,00000 attendant charges 3 Medical expenses 55,67500 4 Loss of future income 1,32,60000 (Rs.13,000/ X 5% = Rs.650/ Rs.650/ X 12 = 7,800/ Rs.7,800/ X 17) (Rs.13,00/X5/100X 12 X 17) 5 Transportation charges 2,00000 6 Loss of income during laid up 26,00000 period 7 Future medical expenses 25,00000 Total 2,74,27500 SCCH-1 24 MVC No.743/2020
40. Respondent No.1 being the insurer and respondent No.2 being the owner of the vehicle are jointly and severally liable to pay the compensation amount of Rs.2,74,275/ to the petitioner with 6% interest from the date of petition till realisation. Hence, Issue No.3 is answered partly in the affirmative.
41. ISSUE No.4: In view of the discussions made above, I proceed to pass the following: ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a compensation of Rs.2,74,275/ with interest at the rate of 6% per annum on Rs.2,49,275/ from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
SCCH-1 25 MVC No.743/2020
Out of the compensation, 50% with proportionate interest is ordered to be invested in high yielding fixed deposit in the name of the petitioner in any of the nationalized or scheduled bank of his choice for a period of 5 years. Interest on FD is payable on maturity. Remaining 50% amount with proportionate interest is ordered to be released to him.
Advocate's fee is fixed at Rs.1,000/. Draw an award accordingly.
(Dictated to the Stenographer, transcribed thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 31st day of December, 2021) (SMT.PRABHAVATI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 Nagesh.N P.W.2 Dr. Deshpande Ajeya.A
Documents marked on behalf of the petitioners:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 MLC intimation
SCCH-1 26 MVC No.743/2020
Ex.P.4 Crime details form with spot mahazar
and spot sketch
Ex.P.5 IMV report
Ex.P.6 Wound certificate
Ex.P.7 Chargesheet
Ex.P.8 Discharge summary
Ex.P.9 Treatment letter
Ex.P.10 Driving licence
Ex.P.1113 3 positive photographs
Ex.P.13(a) CD
Ex.P.14 33 medical bills
Ex.P.15 9 prescriptions
Ex.P.16 6 Xrays
Ex.P.17 Authorization letter
Ex.P.18 Case sheet
Ex.P.19 Xray
Ex.P.19(a) Xray report
Witnesses examined on behalf of the respondents :
RW.1 Nagendra Documents marked on behalf of the respondents:
Ex.R.1 Copy of policy
(PRABHAVATI M.HIREMATH)
Chief Judge,
Court of Small Causes &
Member, Prl. M.A.C.T.
Bangalore.
*SR*