Bangalore District Court
Sri.D.Reddappa vs D.V.R.Ramegowda And Sons on 21 January, 2022
KABC020112282019
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY
SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
Member, MACT
XVIII ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
Dated this the 21st day of January 2022
MVC No.2486/2019
PETITIONERS: Sri.D.Reddappa.,
S/o J.Doddappa,
Aged about 42 years,
Rajendra village,
Byrakuru Hobli,
Mulbagal Taluk,
Kolar District.
(By Sri.AN.,Adv.,)
V/s
RESPONDENTS: 1. D.V.R.Ramegowda and Sons
Represented by its Proprietor
Dr.Srinivasa Gowda,
# 82/2, Veerabhadra Nagara,
MC Road, Mulbagal Town,
SCCH4 2 MVC No.2486/2019
Kolar District563 131.
(RC owner of Petrol Tanker
bearing Reg.No.KA07A6809)
(Exparte)
2. United India Insurance
Company Ltd.,
Regional Office, T.P.Hub,
5th and 6th Floors, Krishi
Building, Hudson Circle,
Opp BBMP Head Office,
Nrupathunga Road,
Benaluru560 001.
(Insurer of Petrol Tanker
bearing Reg.No.KA076809)
(Policy No.
0715013118P103105671 valid
from 08.06.2018 to
07.06.2019)
(By Sri.BTRM., Adv.,)
JUDGMENT
The petitioner has filed this petition U/Sec.166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a road traffic accident that occurred on 10.12.2018.
SCCH4 3 MVC No.2486/2019
2. The petition averments in brief are as under:
On 10.12.2018 at about 11.30 a.m., the petitioner was proceeding as a pillion rider in the motor cycle bearing Reg.No.KA07X0224, the rider of the motor cycle was proceeding on the left side of M.C.Road, when they reached in front of DVR Petrol Bunk, Veerabhadranagara, Mulbagal Town, Kolar District, the Petrol Tanker lorry bearing Reg.No.KA07A6809 driven by its driver at high speed in a rash and negligent manner all of a sudden came from the opposite side and dashed hind portion of the motor cycle. Due to the impact, the motor cycle rider and petitioner were thrown out from the motor cycle and sustained severe injuries.
Immediately after the accident, the petitioner was shifted to Sri.Venkateshwara Orthopedic Hospital, Mulbagal where he was admitted as an inpatient and he underwent operation of CRIF with IMIL nailing right tibia SCCH4 4 MVC No.2486/2019 and discharged him on 16.12.2018 with an advice to take complete bed rest and follow up treatment as an outpatient. The petitioner has spent a sum of Rs.1,50,000/ for medical and its related expenses. Prior to the accident, petitioner was very hale and healthy and he was working as Gram Panchayath Member, agriculturist and he was also doing business and earning an income of Rs.20,000/ per month. Due to the accidental injuries petitioner is not able to continue his work and is under complete bed rest and he is suffering from permanent disability.
The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle, are jointly severally liable to pay the compensation to the petitioner. Hence prays to award compensation of Rs.20,00,000/ with interest.
SCCH4 5 MVC No.2486/2019
3. After service of notices the respondent No.1 placed expate. The respondent No.2 has entered appearance through its advocate and filed written statement.
The respondent No.2 in its objection statement has stated that it has issued Package to the Petrol Tanker bearing Reg.No.KA07A6809 in favour of the respondent No.1 and the liability,limitations as to use and and person who was driving the said vehicle at the time of the accident has valid driving license, FC and RC. The petitioner had no driving license to ride the motor cycle at the time of the accident and the present rider has been implanted as the rider of the motor cycle at time of the accident. Hence, the contributory negligence is attributed at least 50% to cause the accident in case if the offending vehicle is involved in the said accident. Further contended that, there was no fresh damages found at SCCH4 6 MVC No.2486/2019 the time of the inspection of the vehicle. As per IV report only front side mirrors of the motor cycle have been damaged. The offending lorry has hit the motor cycle from backside but as per the IMV report there are no any damages from the back side of the motor cycle and damages are shown at the front side of the motor cycle. Hence it is questionable that, how damages can occur to the front portion of the motor cycle when it was dashed from the backside? Therefore it shows that, the offending vehicle has never involved in the accident and it has been implanted deliberately to make wrongful gain from this respondent. Further contended that, the alleged accident occurred on 10.12.2018 and complaint was lodged on 11.12.2018 i.e., after the lapse of one day. The compensation claimed by the petitioner is highly exorbitant excessive. Hence the 2 nd respondent prays to dismiss the petition against it.
SCCH4 7 MVC No.2486/2019
4. On the basis of the rival contention, the following issues are framed by this court:
1. Whether the petitioner proves that, the petitioner was sustained in juries due to RTA alleged to have been occurred on 10.12.2018 at about 11.30 a.m., in front of DVR Petrol Bunk, M.C.Road, Veerabadranagara, Mulbagal Town, Kolar District, due to the rash and negligence driving of the driver of the Petrol Tanker bearing Reg.No.KA07A6809?
2. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
3. What Order or Award?
5. In order to prove the claim petition, the petitioner is examined as P.W.1 and got marked the documents at Ex.P.1 to 12. The petitioner has also examined one witnesses as P.W.2, through him Ex.P.13 to 16 documents are marked. Inspite of given sufficient SCCH4 8 MVC No.2486/2019 opportunity the respondent did not choose to lead evidence.
6. I have heard the arguments of both sides and perused the material evidence that are available on record.
7. My findings on the above issues are as under.
Issue No.1 : Partly in the affirmative;
Issue No.2 : Partly in the affirmative,
Issue No.3 : As per the final orders
for the following:
: R E A S O N S:
ISSUE NO.1 :
8. That by reiterating all the averments made in the petition, the petitioner has filed his affidavit in lieu of chiefexamination which is considered as P.W.1. In support of his case, he has produced true copies of FIR, statement recorded by police, wound certificate, spot mahazar, IMV report, charge sheet and discharge summary which are marked under Ex.P.1 to P.7. On SCCH4 9 MVC No.2486/2019 going through these document it is seen that, Mulbagal Police have recorded the statement of petitioner while he was taking treatment at Sri.Venkateshwara Hospital, Mulbagal, on 11.12.2018. As per the statement the petitioner met with an accident on 10.12.2018 while he was proceeding as a pillion rider on a two wheeler bearing Reg.No. KA07X0224.
9. After recording the statement the jurisdictional police have registered IFR against driver of the petrol tanker bearing Reg.No.KA07A6809, thereafter the police have visited the place of accident and drawn spot mahazar. After completion of the investigation the jurisdictional police have filed charge sheet against one Thimmaiah @ Thimmanna, for the offences punishable under section 279 and 338 of IPC. In the charge sheet it is has been alleged that on 10.12.2018 at 11.30 a.m., the accused being the driver of the Petrol Tanker bearing SCCH4 10 MVC No.2486/2019 Reg.No.KA07A6809 drove the same in a rash and negligent manner on Narasimha Thritha road, Mulbagalu town, while he was turning the vehicle towards DVR Petrol Bunk it dashed hind portion of two wheeler bearing Reg.No.KA07X0224 wherein the petitioner was proceeding as a pillion rider.
10. The respondent No.2 has denied the involvement of the insured vehicle and taken up defence that, the insured vehicle falsely implicated in the alleged accident. To prove its defence the respondent did not entered the witness box. While arguing the case the learned counsel appearing, for respondent No.2 has submitted that, the insured vehicle is not at all involved in the accident and as could be found in IMV report, the damage caused to the motor cycle is on the front portion only but no damages found in the insured lorry. He further submitted that if at all the insured lorry hit the SCCH4 11 MVC No.2486/2019 motor cycle from the backside it would have caused damage on the hind portion of the motor cycle. Hence, the insured vehicle has falsely implicated.
11. According to the petitioner he met with accident on 10.12.2018, on the next day the police have recorded the statement of petitioner. Moreover, on the date of the accident itself the petitioner took treatment at Sri.Venkateshwara Hospital ,as mentioned in the wound certificate Ex.P.3 and also admitted as in inpatient as mentioned in the discharge summary. On the same day the police have visited the place of accident and drawn spot mahazar wherein it is noted that, the petrol tanker as well as two wheeler were on the spot. In the mahazar also it is also noted that, the accident is taken place near DVR petrol bunk at Mulbagal town. If at all the insured vehicle was not at all involved in the accident, there was SCCH4 12 MVC No.2486/2019 no necessity to the vehicles on the same place. This aspect is not at all explained by the respondent.
12. The respondent has not adduced evidence to prove its defence. On the basis of oral as well as documentary evidence produced by the petitioner. There are sufficient materials to show that, the petitioner sustained injury on 10.12.2018 which is caused by the vehicle belonging to the respondent No.1.
13. According to the petitioner the tanker lorry hit the two wheeler from the back side but the IMV report specifically reveals that, the two wheeler in which the petitioner was proceeding is damaged on the front side. If at all the tanker lorry hit the two wheeler from the hind portion there must be damage on the backside of the two wheeler but there is no such damages on the backside of the two wheeler.
SCCH4 13 MVC No.2486/2019
14. Looking to the facts and circumstance of the case, it is found that, while the petitioner proceeding on the two wheeler on the left side of the road the driver of the tanker lorry came from right side of the two wheeler and while he was turning the lorry towards the Petrol bunk,the rider of two wheeler dashed it to the lorry. Usually the driver of heavy vehicle should take more caution than the rider of two wheeler. In the case on hand also while turning the tanker lorry from one side to another its driver should have take utmost care than the rider of two wheeler. If the driver of the tanker lorry taken care he could have avoided the accident. Likewise the rider of the two wheeler taken some caution he also could have avoided the accident. Looking to the facts and circumstances of the case there is contributory negligence by the driver of the tanker lorry as well as the rider of the two wheeler. Hence, I hold that, negligence on the part of the tanker lorry is at 70%, remaining 30% SCCH4 14 MVC No.2486/2019 is the rider of the motor cycle. Accordingly, I answer issue No.1 partly in the affirmative.
ISSUE NO.2:
15. As already held herein above, the petitioner has proved that he has sustained injuries in RTA which is caused by respondent No.1. Hence, the petitioner is entitle for compensation. Now the quantum of compensation is to be ascertained on different heads.
16. The petitioner to prove the nature of his injuries, is examined Dr.Naveen Kumar K.L., Orthopedic Surgeon, Venkateshwara Orthopedic and Maternity Specialty Hospital, Mulbagal Taluk, Kolar District, as PW.2, through him recent clinical examination notes, disability evaluation report, inpatient case sheet and 3 x rays are marked under Ex.P.13 to 16. As per the evidence of PW.2, he was treated the petitioner on 10.12.2018 with history of RTA, the petitioner sustained injuries to SCCH4 15 MVC No.2486/2019 closed midshaft tibia fracture of right leg (closed midshaft tibia fracture of right leg and under went surgery closed reduction with internal fixation with IMIL Nail Fix Right Tibia was done on 10.12.2018 and was discharged from the Hospital on 16.12.2018 with an advice for regular followup on OPD basis. As per this witness recently he examined the petitioner on 25.09.2021 for assessment of permanent physical disability, the petitioner has complains of pain in the right knee and ankle on doing strenuous activities cannot sit crossleg, cannot climb stair, cannot squat and use Indian type of toilet. On examination the complaints were noted, scar marks noted, range of motion of knee ankle joint is reduced, middle shaft and loss of stability factor by 20% disability is assessed by noting clinical parameters along with calculation in disability evaluation. The xrays shows united fracture of right tibia was reduced knee/ankle joint with traumatic arthritischanges present by using SCCH4 16 MVC No.2486/2019 the guidelines set by Govt of India according to Gazzette Notification issued by Ministry of Social Justice dated 2 nd January2016. Further PW.2 deposed that, right lower limb is 30% and disability of whole body is 10%. Taking in to consideration of the nature of the injuries sustained, treatment period and evidence of PW.2, I will accept the evidence of PW.2 and consider physical permanent disability at 10% to whole body the petitioner. Xray also supports the evidence of PW.2. hence evidence of this witness is accepted.
According to the evidence of PW.2 the petitioner needs one more surgery for removal of implant, the cost around Rs.25,000/. This aspect is not impeached during the course of crossexamination. It is also not the case of respondent that, implant is removed. Hence, it can be considered that the petitioner is required at least Rs.20,000/ for future medical expenses.
SCCH4 17 MVC No.2486/2019 As per the duplicate discharge summary marked at Ex.P.7 the petitioner took treatment as an inpatient for a period of 7 days. The petitioner in his petition has contended that, he Village Panchayath Member and Agriculturist and Business and earning Rs.20,000/ per month. Further the petitioner has produced Ex.P.8 certificate to show that, he was working as village Panchayath Member and Ex.P.8, 3 bills issued by APMC to show that, he is a vegetable vendor. The village Panchayath members are not given salary but they are given rem unary. More over the membership of village Panchayath is not treated as a job. Hence it is considered that petitioner has not proved that he was earning Rs.20.000/ pm.
17. in the absence of proof of income the notional income is to be considered. In the decision reported in 2021 ACJ 1592 in the case Yashodha.H and others SCCH4 18 MVC No.2486/2019 V/s Sharath Acharya and another the Hon'ble High Court of Karnataka was please to award the compensation by taking notional income as fixed by the High Court Legal Service committee. In view, of this decision it is to be considered that, the notional income of the petitioner was Rs.12,500/, in the year 2018, then one day wages would Rs.416/.
18. As per discharge summary the petitioner was admitted to hospital as inpatient for totally 7 days at Sri.Venkateshwara Orthopedic and Maternity Surgical Hospital after discharge from the hospital there was need of rest at least for 23 days. So, the petitioner is entitled compensation of Rs.12,500/ (30 days X Rs.416/ = 12,480/ which can be rounded off Rs.12,500/) during the laid up period.
19. The petitioner has also produced 34 medical bills which are marked at Ex.P.10, amounting to SCCH4 19 MVC No.2486/2019 Rs.65,757/ .10 medical prescriptions are also produced at Ex.P.11. So, the petitioner is entitled for medical bills for Rs.65,757/.
20. As mentioned in the petition as on the date of accident the age of petitioner was 42 years. The petitioner has produced his Aadhar card marked under Ex.P.12, as per this document the date of birth of the petitioner is mentioned 12.06.1976. The accident was occurred in the year2018. So, as on the date of the accident the petitioner was aged 42 years.
21. As per Sarala Verma's case, the proper multiplier applicable to the age of petitioner is '14'. Hence, I inclined to award future loss of income at Rs.12,500/ X 12 X 14 X 10% =Rs.2,10,000/ which is the total loss of future income.
22. Hence, I inclined to award the compensation to the petitioner under the following heads:
SCCH4 20 MVC No.2486/2019
1. Loss of future income Rs. 2,10,000/
2. Loss of income during the laid Rs. 12,500/
up period and attendant charge.
3. Conveyance charges Rs. 10,000/
4. Pain and sufferings Rs. 75,000/
5. Food nourishment, attendant Rs. 25,000/
charges and loss of amenities
6. Medical bills Rs. 65,757/
7 Future medical expenses Rs. 20,000/
Total Rs. 4,18,257/
23. As it is held that there is 30% contributory
negligence on the part of the petitioner, to such extent the petitioner is not entitled for compensation, as he has not impleaded the owner and rider of the two wheeler. Hence, the petitioner is entitled Rs.2,92,780/.
24. In this case, the respondent No.1 and 2 are the owner and insurer of the offending vehicle. The respondent No.2 in its objection statement admitted the issuance of insurance Goods carrying commercial package policy to the Petrol Tanker bearing Regn.KA07 SCCH4 21 MVC No.2486/2019 A6809. Hence the respondent No.1 and 2 are jointly and severally liable to pay the compensation to the petitioner and the respondent No.2 insurance company shall indemnify the compensation behalf of the respondent No.1
25. This tribunal, in earlier other cases, was awarded the compensation along with the interest at the rate of 12% p.a, by relying th earlier judgment of the Hon'ble supreme court. But in the recent judgment, in civil appeal No.6902/2021, in the case of Kurvan Ansari @ Kurvan V/s Shyam Kishore Murmu, the Hon'ble supreme court was pleased to award interest at the rate of 6% p.a., Accordingly, I answer this issue partly in the affirmative.
ISSUE NO.3:
25. For the foregoing reasons, I proceed to pass the following:
SCCH4 22 MVC No.2486/2019
ORDER
The petition filed by the petitioner U/s 166 of the Motor Vehicles Act is hereby partly allowed with cost.
The petitioner is entitled for total compensation amount of Rs.2,92,780/ with interest at the rate of 6% p.a., from the date of petition till the realization from respondents.
The respondent No.2 is directed to deposit the compensation amount within 30 days from the date of this order.
Considering the quantum warded it is ordered to release the entire amount to the petitioner.
Advocate fee is fixed at 1,500/.
Draw up award accordingly.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 21st day of January, 2022) (RAJU.M) XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.
ANNEXURE List of witnesses examined for petitioners:
PW.1 Sri.D.Reddappa SCCH4 23 MVC No.2486/2019 PW.2 Dr.Naveen Kumar.K.L.,
List of documents marked on behalf of the petitioners:
Ex.P1 FIR
Ex.P2 Statement recorded by police
Ex.P3 Wound certificate
Ex.P4 Spot mahazar
Ex.P5 IMV report
Ex.P6 Charge sheet
Ex.P7 Discharge summary
Ex.P8 Certificate to show that he was working as
village Panchayath Member
Ex.P9 3 bills issued by APMC to show that, I am a
vegetable vendor
Ex.P10 34 medical bills of Rs.9,74,067/
Ex.P11 1 to 10 Prescriptions
Ex.P12 Notarized copy of the my Aadhar card
Ex.P13 Recent clinical examination notes
Ex.P14 Disability evaluation report
Ex.P15 Inpatient case sheet
Ex.P16 3 Xrayfilms
List of witnesses examined for Respondents:
NIL List of documents marked on behalf of the Respondents:
NIL XVIII ADDL.JUDGE Court of Small Causes & MACT., Bengaluru.