Bangalore District Court
Aravinth Ramalingam Alias Aravind vs Ashok Kumar.M on 8 August, 2024
KABC020376832022
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
(SCCH-_14)
-: PRESENT:-
SMT. PRAKRITI KALYANPUR, B.A(L),LL.B., LL.M.
C/c XVI Additional Small Causes Judge, Bengaluru.
DATED THIS THE 8th DAY OF AUGUST 2024
MVC NO.7162/2022
PETITIONER: Aravinath Ramalingam @
Aravind,
S/o Ramalingam
Aged About 35 Years,
R/At No. 12/B4,
Keelaveethi,
Thiruvizhanthaur,
Mayiladuthurai,
Nagapattinam,
Tamil Nadu - 609 001.
(By Sri.K.Siddalinge
Gowda,Adv.)
V/S
RESPONDENTS: 1.Ashok Kumar.M.
No. 10/36-2,
Thiru V.K. Nagar,
Harur PO, TK,
Dharmapuri - 636 903.
2 MVC 7162/2022
SCCH-14
Tamil Nadu.
(Exparte)
2:United India Insurance
Co. Ltd.,
Regional Office
5th and 6th Floors
Krishi Bhavan,
Hudson Circle,
Opp BBMP Head Office
Nrupathunga Road,
Bengaluru - 560 001.
(By Sri.K.Suresh,Adv.)
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act, seeking compensation of Rs.15,00,000/- for the injuries sustained by him in a road traffic accident dated 29-08-2022.
2. The case of the Petitioner in brief is that, On 29-08-2022 at about 8.45 p.m., the petitioner was proceeding in a lorry bearing No.TN-30-BP-2499 as a cleaner sitting in the cabin, the said lorry was loaded with Tomato at Bagepalli, the same was driven by its driver on 3 MVC 7162/2022 SCCH-14 NH-234 in a rash and negligent manner, while so proceeding near Jathavara Hosahalli village gate railway underpass, lost control and dashed against the railway underpass wall, due to which the petitioner sustained grievous injuries.
3. It is further case of the petitioner that, immediately after the accident he was taken to Chikkaballapura Government Hospital for first aid treatment and thereafter he was shifted to Victoria hospital Bengaluru, wherein he was treated as an inpatient, underwent surgeries and discharged with advice. So far he has spent Rs.1,00,000/- towards medical expenses, conveyance, food and nourishment etc., At the time of accident he was hale and healthy, working as cleaner in lorry and was earning a sum of Rs.20,000/- per month. Due to accidental injuries he lost his income. He is put to great hardship and mental agony and shock. The accident caused due to the carelessness, rash and negligent driving by the driver of the lorry bearing Reg.No.TN-30-BP-2499 4 MVC 7162/2022 SCCH-14 The Chikkaballapura Rural Police have registered a case against the driver of the offending vehicle in Cr.No.157/2022. Therefore, the 1st respondent being the RC owner and the 2nd respondent being the insurer of lorry bearing No.TN-30-BP-2499 are jointly and severally liable to pay compensation to him. Hence, this petition.
4. In response to notice issued by this Tribunal, the Respondent No.1 remained absent, hence he was placed exparte. The Respondent No.2 appeared through its counsels and filed written statement.
5. The objection of the respondent No.2. It has denied all the averments of the petition. It has admitted the issuance of policy in favour of the Respondent No.1 in respect of the lorry bearing No.TN-30-BP-2499 and the policy is valid on the date of accident. It has also contended that the driver of lorry had no valid and effective driving licence and the vehicle had no valid FC and permit as on the date of accident. It has also denied the age, 5 MVC 7162/2022 SCCH-14 occupation and the manner of accident. It contended that the compensation claimed by the petitioner is excessive, arbitrary and disproportionate. Therefore, prayed for dismissal of the petition against it.
6. On the above rival contentions of the parties, this court has framed the following issues:-
1. Whether the Petitioner proves that, he sustained grievous injuries in the nature of permanent disablement on 29.08.2022 at about 8.45 p.m. on NH-234 road, near Jathavara Hosahalli village gate railway underpass, in an accident arising due to rash and negligent driving of driver of lorry bearing No.TN-30-BP-2499?
2. Whether the Petitioner is entitled for Compensation? If so, how much and from whom?
3. What order or award?
7. The Petitioner in order to prove his case has examined himself as PW.1 and got marked Exs.P.1 to P.10. Dr.B.Ramesh got examined as PW.2 and got marked Exs.P.11 to 13. On the other side, Respondent No.2 6 MVC 7162/2022 SCCH-14 examined its Administrative Officer as RW.1 and got marked Ex.R.1 and 2 and closed its side evidence.
8. Heard the arguments and perused the materials on record.
9. The learned counsel for the petitioner has relied on the following citations.
1.2022 Live Law (SC) 56 (M/s Mangilal Vishnoi Vs.National Insurance Co.Ltd., and others)
2.MFA 6413/14 (mv) ( Sri.Sattu @ Settu Vs. Sri.A.Ayub and another)
10. On hearing both sides and perusal of the evidence on record, and the decisions relied by the petitioner, this court answers the above issues as follows:-
Issue No.1 : In the Affirmative,
Issue No.2 : In the affirmative,
Issue No.3 : As per the final order,
for the following:-
REASONS
11. Issue No.1:-
In order to prove that the accident occurred due to the 7 MVC 7162/2022 SCCH-14 actionable negligence on the part of the driver of the lorry bearing Reg.No.TN-30-BP-2499, the petitioner has examined himself as PW.1 and got marked Exs.P.1 to P.10. He has reiterated the contents of the petition in his affidavit filed in lieu of his chief examination. The Respondent No.2 denied the nature of accident. The Respondent No.2 insurer has denied that the accident occurred due to the rash and negligent driving of the driver of the offending lorry and it was falsely implicated. In the cross-examination of PW.1, he has admitted that he does not have any document to show that he was working under Ashok Kumar, owner of the lorry. In order to prove their contentions, respondent No.1 got examined Administrative Officer as RW.1 and got marked Ex.R.1 and 2 i.e., authorisation letter, copy of policy.
12. As per FIR at Ex.P.1 and complaint at Ex.P.2, it was registered next day of the accident on the complaint of petitioner. Ex.P.3 spot mahazar is in accordance with the statement given by the petitioner. Ex.P.4 is the spot 8 MVC 7162/2022 SCCH-14 sketch drawn in the presence of panchas. The police have conducted investigation and filed the charge sheet as per Ex.P.5 against the driver of the offending lorry. The IMV report at Ex.P.6 also shows that the lorry bearing No.TN- 30-BP-2499 was damaged to front bumper, both head lights and indicators damaged, wind shield glass damaged, radiator assembly damaged, dash board panel damaged, steering wheel and steering column damaged, driver cabin is completely severed and extensively damaged, cargo body on left side completely extensively and severely damaged, cargo body on right side (at rear) damaged, front axle out of fitment and driver seat out of fitment. Ex.P.7 is the wound certificate which shows that petitioner has sustained 1) crush injury of left foot, 2) Deformity of left femur, 3) Laceration of 2 x 2 cm. On left leg and 4) Deformity and tenderness of right wrist.
13. This shows that on account of the accident the Petitioner has sustained grievous injuries. Therefore, on overall perusal of Exs.P.1 to 10 it is clear that the accident 9 MVC 7162/2022 SCCH-14 occurred on 29-08-2022 and the petitioner has sustained injuries as mentioned in wound certificate. Therefore, on the basis of the evidence of PW.1 and the documents, this Tribunal holds that the accident occurred due to the negligence of the driver of the offending vehicle bearing No.TN-30-BP-2499. Accordingly, issue No.1 is held in the affirmative.
14. Issue No.2:-
In order to prove the injuries and disability suffered by the petitioner, the petitioner has produced the wound certificate. As per the wound certificate he has sustained
1) crush injury of left foot, 2) Deformity of left femur, 3) Laceration of 2 x 2 cm. On left leg and 4) Deformity and tenderness of right wrist. He has produced discharge summary of G.V hospital as per Ex.P.8 and discharge summary of Victoria hospital as per Ex.P.9. As per these documents, the petitioner was admitted on 30.08.2022 to 06.09.2022 and from 03.04.2023 to 06.04.2023 i.e., for 12 days.10 MVC 7162/2022
SCCH-14
15. The petitioner has also got examined Dr.B.Ramesh as PW.2 and got marked Exs.P.11 to 13 i.e., Case sheets, X-ray and entire OPD book. He has deposed the details of surgery conducted on the petitioner and has assessed permanent physical disability of 34% of right lower limb, 27% of right upper limb and 24% to whole body.
16. PW.2 in his cross examination has admitted that he has not treated petitioner at any point of time. He has admitted that two fractures are united and the other fractures are not united. He has also admitted that femur and radius are united and there are no fractures at left hip and knee. He has also admitted that there are no restrictions in right elbow and there are implants from left hip till left knee. The radius implants have been removed. With some difficulties, the petitioner is capable of carrying out day to day activities.
11 MVC 7162/2022
SCCH-14 Disability:
17. From the evidence of PW.2 and the documents on record, it is clear that the petitioner has suffered 1) crush injury of left foot, 2) Deformity of left femur, 3) Laceration of 2 x 2 cm. On left leg and 4) Deformity and tenderness of right wrist. However, the petitioner is young and the recovery of injuries in young patients is fast. Therefore, on the basis of the evidence of Pw.2, the assessment of whole body at 24% is on a higher side.
18. The petitioner has stated that he was working as cleaner in lorry. This means that either he has to sit or stand for a long time and also do manual work. This kind of disability will affect his day to day work. Therefore, this court deems it fit to fix the whole body disability at 20%. Monthly income:
19. The Petitioner has deposed in his evidence that, he was working as cleaner in lorry and earning Rs.20,000/- per month. In this regard he has not 12 MVC 7162/2022 SCCH-14 examined any witness nor produced any documents like Bank statement etc., to prove his earnings. The accident occurred in the year 2022. Therefore, this court deems it fit to fix the notional income at Rs.15,500/- per month. At the time of accident, the Petitioner was aged about 35 years as could be made out from Ex.P.10/Notarized copy of aadhar card. He was hale and healthy before the accident. Keeping all the above things in mind, Petitioner is entitled to the following compensation:-
i) PAIN AND SUFFERING:-
After the accident, the Petitioner was treated at Chikkaballapura Government Hospital and Victoria hospital wherein he was admitted and treated as an inpatient from 30.08.2022 to 06.09.2022 and from 03.04.2023 to 06.04.2023 i.e., for 12 days. Considering the nature of injury he has undergone is grievous, the Petitioner is awarded a sum of Rs.1,00,000/- under this head.13 MVC 7162/2022
SCCH-14
ii) MEDICAL EXPENSES:
The Petitioner has pleaded that he has spent a sum of Rs.1,00,000/- towards treatment, medicines, conveyance, food and nourishment and other incidental expenses etc. In this regard, he has produced medical bills as per Ex.P.9 for a sum of Rs.75,900/-. There is no contrary evidence against these bills from the Respondents. Therefore, the petitioner is entitled for the above said amount under this head.
iii) LOSS OF INCOME DURING LAID UP PERIOD:-
As mentioned above the petitioner has sustained grievous injuries. The petitioner has produced discharge summary of G.V.Hospital and Victoria hospital to show the duration and treatment in the said hospital. Therefore, considering the nature of injuries it can be said that the Petitioner may have required at least two months time for recovering from the injuries sustained by him. Hence, he is entitled only for a sum of Rs.31,000/- under this head. 14 MVC 7162/2022
SCCH-14
iv) LOSS OF FUTURE INCOME:-
The Petitioner, in order to prove his age, has produced notarized copy of Aadhar Card as per Ex.P.10. As per the said document, his date of birth is 04.05.1993. The accident occurred on 29.08.2022. As such, as on the date of accident the age of the Petitioner is considered as 29 years. As per the dictum laid down in Sarala Verma's case the appropriate multiplier applicable to his age is 17. Therefore, the Petitioner is entitled for a sum of Rs.6,32,400/- (Rs.15,500/- x 12 x 17 x 20%= Rs.6,32,400/-) under this head.
(v) LOSS OF FUTURE AMENITIES AND HAPPINESS:-
The Petitioner was aged about 29 years at the time of accident. He has sustained grievous injuries and as per consideration of this Tribunal, he is suffering from 20% functional disability. The Petitioner has to suffer this disability throughout his life. Because of this he will have to lose some of the amenities and comforts. Therefore, considering the age and nature of injuries that the 15 MVC 7162/2022 SCCH-14 Petitioner has suffered, a sum of Rs.20,000/- is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD ANDNOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the above said hospitals, admitted as an inpatient and discharged with advise. However, during this period he must have spent considerable amount on his food and nourishment, conveyance and attendant expenses. Therefore, the Petitioner is entitled for a sum of Rs.20,000/- under this head.
21. The Petitioner is entitled to compensation under the following heads:
1. Pain & suffering Rs.1,00,000/-
2. Medical expenses Rs. 75,900/-
3. Loss of income during laid up period Rs. 31,000/-
4. Loss of future income Rs.6,32,400/-
5. Loss of future amenities and Rs. 20,000/-
happiness 16 MVC 7162/2022 SCCH-14
6. Attendant, conveyance, food and Rs. 20,000/-
nourishment charges TOTAL Rs.8,79,300/-
Hence, Rs.8,79,300/- is awarded to the Petitioner. Liability:
22. The Respondent No.2 has contended that it has issued the policy in favour of the respondent No.1 but the risk of the cleaner was not covered under the captioned policy by paying additional premium by the insured.
During the cross examination of RW.1, he has admitted that the policy was given to heavy goods vehicle and the policy was comprehensive. He has also admitted that an additional premium of Rs.100/- was collected. He has admitted that as per law 6 workmen are included in policy. On perusal of Ex.R.2, it is clear that additional premium of Rs.100- is collected for liability to workmen greater than 6 and the policy was a package policy. As per IMT 39, on payment of additional premium, the policy covers the liability of paid driver (or cleaner or conductor or person 17 MVC 7162/2022 SCCH-14 employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner). Therefore, it is clear that respondent No.2 cannot escape from its liability of paying compensation to the petitioner. The counsel for the petitioner has relied on 1.2022 Live Law (SC) 56 between (M/s Mangilal Vishnoi Vs.National Insurance Co.Ltd., and others) and MFA 6413/14 (MV) between (Sri.Sattu @ Settu Vs. Sri.A.Ayub and another), wherein the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka have held that cleaner and helper are used interchangeably and under IMT 40 even a cleaner is entitled to get compensation. Therefore, the Respondent No.1 and 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. The Petitioner has claimed for a sum of Rs.10,00,000/- but he is entitled only for a sum of Rs.,000/- with interest @ 6% per annum from the date of petition till its realization. Therefore, the petition needs to be allowed. Accordingly, Issue No.2 is held in the 18 MVC 7162/2022 SCCH-14 affirmative.
23. Issue No.3:-
For the reasons and discussions made above and finding to the above issues, this Tribunal proceeds to pass the following:-
ORDER The petition is allowed in part with cost.
The Petitioner is entitled for compensation of Rs.8,79,300/- along with
interest at 6% p.a. from the date of petition till the date of depositing the amount. The respondents are jointly and severally liable to pay the said compensation to the petitioner.
However, the Respondent No.2/Insurer is directed to deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.19 MVC 7162/2022
SCCH-14 On deposit of compensation and interest, 75% shall be deposited in the name of the petitioner for a period of 3 years in any N/S Bank and remaining amount shall be released in favour of the Petitioner by way of e-payment on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/-.
` Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 8th day of August 2024) (PRAKRITI KALYANPUR) C/c XVI Addl. SCJ, MEMBER MACT Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Aravinth Ramalingam @ Aravind PW.2 Dr.B.Ramesh
List of Documents marked for Petitioner:
Ex.P.1 : True copy of FIR with complaint
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Mahazar
20 MVC 7162/2022
SCCH-14
Ex.P.4 : True copy of Spot sketch
Ex.P.5 : True copy of Charge sheet
Ex.P.6 : True copy of IMV report
Ex.P.7 : True copy of Wound certificate
Ex.P.8 : Discharge summaries (2 in nos.)
Ex.P.9 : Medical bills (56 in nos.for sum of
Rs.75,900/-)
Ex.P.10 : Notarized copy of Aadhar card
Ex.P.11 : Case sheet
Ex.P.12 : X-ray
Ex.P.13 : Entire OPD book
List of Witnesses examined for Respondent/s:
RW.1 : Prasahanth N.G List of documents exhibited for Respondent:
Ex.R.1 : Authorisation
Ex.R.2 : Certified copy of policy with terms and
conditions
(PRAKRITI KALYANPUR)
C/c XVI Addl. SCJ, MEMBER MACT,
Bengaluru.