Bangalore District Court
Smt. Geetha vs M/S Cholamandalam Ms on 9 April, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 9th day of April, 2015.
Present: Sri.N.Subramanya, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.3991/2013
Petitioner : Smt. Geetha,
W/o Gangaiah,
Aged about 20 years,
Byranayakanahalli village,
Thyamagondlu Hobli,
Nelamangala Taluk,
Bangalore District.
Presently R/at,
C/o Venkatesh,
No.39, 3rd Cross,
Janatha Colony,
Jalahalli, Bangalore-15.
(By Sri.H.B.Somapur, Adv.)
-Versus-
Respondents: 1. M/s Cholamandalam MS
General Insurance Co. Ltd.
By its Manager,
No.9/1, Ulsoor road,
Bangalore - 42.
Policy No.3379/00729490/000/01.
Valid from 12.6.2013 to 1.6.2014
(Insurer of the Tata Ace No.KA-52-5758)
(By Sri. B.N. Sreekanta Swamy, Adv.)
2. Sri. Shivaraju,
Major, S/o Gangaiah,
Byranayakanahalli village,
MVC.No.3991/2013
SCCH-22
Doddabele post,
Thyamagondlu Hobli,
Nelamangala taluk,
Bangalore District.
(Owner of the Tata Ace No.KA-52-5758)
(Exparte)
JUDGMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.20,00,000/- from the Respondents for the injuries sustained by him in Motor Vehicle's Accident.
2. The brief facts of the case are that:-
On 21.6.2013 at about 11.00 a.m., when the petitioner was on extreme left side of Pete Beedi, infront of Rudreshwara Kalyana Mantapa, Nelamangala, at that time the driver of Tata LGV bearing reg. No.KA-52-5758 came from Bangalore towards Pete beedi came in a rash and negligent manner and dashed against the petitioner. due to the impact, she fell down and sustained grievous injuries all over the body. Immediately she was shifted to Victoria hospital for treatment and she has contended that she has spent a sum of Rs.11,00,000/- towards medicine, treatment, conveyance etc. Prior to the accident she was MVC.No.3991/2013 SCCH-22 hale and healthy and was working as a Coolie under private building contractor and was earning a sum of Rs.9,000/- p.m. and due to accidental injuries she is not able to work and suffering from financial loss.
3. Petitioner has contended that the accident in question was caused solely due to the rash and negligent driving of the Tata LGV bearing reg. No.KA-52-5758 by its driver. Hence, petitioner has prayed for award of compensation of Rs.20,00,000/- with interest at 12% p.a. from the date of petition till realisation and such other reliefs as this tribunal deems fit to grant under the circumstances of the case.
4. In pursuance of service of the notice to the Respondents No.1 and 2, 2nd Respondent remained absent and he was placed exparte. 1st Respondent appeared through its counsel and filed its statement of objections denying all the averments made by the petitioner in the petition, and admits the fact that the Tata LGV bearing reg. No.KA-52-5758 was insured with the 1st Respondent and the liability if any is subject to the terms and conditions mentioned in the policy. The 2nd Respondent has denied that the accident to have occurred due to the rash and MVC.No.3991/2013 SCCH-22 negligent driving of the Tata LGV bearing reg. No.KA-52- 5758 by its driver and the compensation claimed by the petitioner is exorbitant and excessive. On all these grounds this respondent prays to dismiss the claim petition of the petitioner.
5. On the basis of the above pleadings, following Issues have been framed:
ISSUES
1. Whether petitioner proves that the accident that occurred on 21.06.2013 at about 11.00 a.m. infront of Rudreshwara Kalyana Mantapa, Pete Beedi, Nelamangala, was caused due to rash and negligent driving of the TATA LGV bearing reg. no. KA-52-5758 by its driver and dashed against him, due to which he fell down and sustained grievous injuries?
2. Whether petitioner is entitled for compensation? If so, for what amount and from whom?
3. What order or award?
6. Petitioner to prove the above said issues, has got examined himself as PW1 and examined one more witness as P.W.2 and got marked Exs.P.1 to P.17 and closed her side. 1st Respondent, in spite of opportunities given, not let in any evidence. Hence, the evidence on behalf of 1st Respondent taken as nil and side closed.
MVC.No.3991/2013 SCCH-22
7. Heard the arguments.
8. My answer to the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Yes, to the extent as shown in the final
order, from Respondent No.1 and 2.
Issue No.3 : As per final order for the following REASONS
9. Issue No.1:
Petitioner (Injured) got examined himself as PW1 and has filed his affidavit, narrating the accident as mentioned in the above pleadings. Petitioner to substantiate the said facts, has produced True copies of FIR, Complaint, Statement, Spot Mahazar, Vehicle Seizer Mahazar, IMV report, Wound Certificate and Charge sheet pertaining to Crime No.220/2013 of Nelamangala Town Police Station, marked as Exs.P.1 to P8 respectively. On going through the above documents and the Charge sheet-Ex.P.8, it reveals the police on the complaint of the T.C.Ramachandraiah, after investigation, have placed charge sheet against the driver of the Tata LGV bearing reg. No.KA-52-5758 for having caused the accident due to his rash and negligent driving and the petitioner has MVC.No.3991/2013 SCCH-22 sustained grievous injury. Nothing has been brought out in the cross examination of PW1 to disbelieve that the accident was not caused due to the negligence of the driver or the petitioner to have contributed his negligence for the accident. Hence, from the material placed on record, it could be detected that the accident in question has occurred due to the rash and negligent driving of the Tata LGV bearing reg. No.KA-52-5758 by its driver and the petitioner as per Ex.P.6-Wound certificate has sustained grievous injuries. Hence, I answer Issue No.1 in the Affirmative.
10. Issue No.2:
PAIN AND SUFFERINGS:-
This issue pertains to award of compensation. Petitioner has sustained injuries in the RTA. Petitioner in his evidence has deposed contents of petition and produced relevant documents to prove the injury. She has produced Ex.P.7- Wound certificate from the Victoria hospital and she has sustained following injury:-
"Diffuse swelling over the left knee joint".
MVC.No.3991/2013 SCCH-22 Looking the gravity of nature of the injury to the vital part which is knee joint. The injury is grievous in nature. So, in all a sum of Rs.50,000/- is awarded under the head "Pain and sufferings".
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11. MEDICAL EXPENSES:-
She has produced medical bills Ex.P.12 from Victoria hospital Bangalore for a sum of Rs.10,630/- supported by original and genuine medical bills of Rs.10,630/- rounded of Rs.10,000/- under the head of Medical Expenses. LOSS OF INCOME DURING LAID UP PERIOD:-
The petitioner deposed in his evidence that she was working as a Coolie under private Building contractor and was earning Rs.9,000/- per month. As per the Ex.P.9 Discharge summary Victoria hospital she was inpatient 15 days and under bed rest for 3 to 4 month. There are no documents to show the occupation and proof of income. Hence, a notional income of the petitioner is taken at Rs.7,000/- since, accident is in the 2013 years is taken for 4 months of Rs.30,000/- and hence a sum of Rs.30,000/-
for four months is awarded under this head.
MVC.No.3991/2013 SCCH-22
12. LOSS OF INCOME DUE TO DISABILTY:-
Regarding disability petitioner has examined Doctor as PW-2 he has deposed that permanent physical 28% disability to the left lower limb which is 14% of whole body. In his cross examination he has admits that the fracture is properly united. Injured age is 20 years. Further he has admits that he has not stated the reasons, he has not stated the description and to what extent the restrictions in my affidavit. He has not stated opinions about occupational and functional disability. In view of above admits the disability to the whole body can be taken as 1/3rd to the left lower limb which comes at 9.3% rounded of 10% to the whole body.
The age of the petitioner is 20 years as per medical records. As per Ex.P.7 wound certificate and age would be 20 years. Hence, loss of future earning capacity due to disability as per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -Versus- Delhi Transport Corporation, the multiplier applicable for the age of group of 21 to 25 years is "18". Hence, the loss of future income due to disability as it is held at above would be Rs.7,000 x 12 x 18 x 10/100 = Rs.1,51,200/-.
MVC.No.3991/2013 SCCH-22 Hence, an amount of rounded to Rs.1,52,000/- is awarded under the head 'Loss of income due to disability'.
13. FOOD, NOURISHMENT, ATTENDANT AND TRANSPORTATION CHARGES:-
Though the petitioner has obtained conservative treatment, she has also taken treatment at Victoria Hospital as per Ex.P.9 - Discharge summery. Since, she has suffered head injury and she was in the follow up treatment continuously. Hence, a sum of Rs.20,000/- is awarded this head.
LOSS OF AMENITIES IN LIFE:-
Since the petitioner has suffered head injury and she has not attended work for two months and PW.2 has deposed that the one more under went surgery for removal of implants. She was under continuous follow up treatment she might have undergone lot of inconvenience which affecting the day to day activities and suffered much mental and physical hardship. Hence, is entitled for a sum of Rs.10,000/- under the head, "Loss of Amenities in Life".
14. There are no further materials to show that the injuries would affect the life expectancy of the petitioner.
MVC.No.3991/2013 SCCH-22 There is no evidence for awarding any compensation under other heads. Hence, the petitioner is awarded compensation under the following heads:
1. Pain and sufferings Rs. 50,000-00
2. Medical expenses Rs. 10,000-00
3. Loss of income during laid up period Rs. 30,000-00
4. Loss of income due to disability Rs.1,52,000-00
5. Food, nourishment, attendant & Rs. 20,000-00 Transportation
6. Loss of amenities in life Rs. 10,000-00 Total Rs.2,72,000-00
15. Thus, in all, petitioner is entitled for compensation of Rs.2,72,000/-. It is just, fair and adequate under the facts and circumstances of the case.
16. With regard to Liability: As discussed by me on Issue No.1, the accident has occurred due to the rash and negligent driving of the Tata Ace bearing reg. No. KA-52-5758 by its driver.1st Respondent is the insurer of the offending vehicle and 2nd respondent is the owner of the said. Hence, he is vicariously liable for the acts of his driver. Since, the 1st Respondent has insurer his vehicle with the 2nd Respondent and the 1st Respondent has admitted the issuance of insurance policy with respect to the Tata Ace bearing No.KA-52-5758 and it is in force as on the date of the accident. The 2nd respondent is contractually liable to indemnify the insured. Hence, MVC.No.3991/2013 SCCH-22 Respondents No.1 and 2 are jointly and severally held liable to pay compensation to the petitioner with interest at 8% p.a. from the date of petition till realization as per the citations reported in:-
1. ILR 2009 KAR 385 between Smt. Nasreen Banu and others vs. The Divisional Manager and another.
2. 2005 ACJ 644 between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd.
and another.
Hence, I answer Issue No.2 in the affirmative accordingly.
17. Issue No.3: In view of my finding on Issue Nos. 1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under Sec.166 of M.V. Act, is hereby allowed in part, with cost.
The petitioner is entitled for compensation in a sum of Rs.2,72,000/-
(Rupees Two Lakhs seventy two thousand only) and shall carry interest at 8% p.a. from the date of petition till realisation of the amount.
MVC.No.3991/2013 SCCH-22 Respondents No.1 and 2 are jointly and severally held liable to pay the above said compensation amount to the petitioner and the primary responsibility is fixed on 1st Respondent-Insurance company to deposit the compensation amount within 30 days from the date of this order.
On deposit of compensation amount, 50% of the compensation amount with accrued interest awarded to the Petitioner with proportionate interest shall be kept in Fixed Deposit in her name, for a period of three years in any of the Nationalised or scheduled Banks of petitioner's choice and the balance amount with proportionate interest shall be paid to the petitioner.
Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 9th day of April, 2015).
(N.SUBRAMANYA) Member MACT & XX ASCJ, Bangalore.
MVC.No.3991/2013 SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 Geetha PW2 Ramesh B.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P1 Copy of FIR Ex.P2 Copy of Complaint Ex.P3 Copy of Statement Ex.P4 Copy of Spot Mahazar Ex.P5 Copy of Vehicle Seizer Mahazar Ex.P6 Copy of IMV report Ex.P7 Copy of Wound certificate Ex.P8 Copy of Charge sheet Ex.P9 Discharge summary Ex.P10 OPD card Ex.P11 One photo Ex.P12 19 Medical bills Ex.P13 5 Prescriptions Ex.P14 6 x-rays Ex.P15 Recent OPD card Ex.P16 Case sheet Ex.P17 X-ray
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
-None-
LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
-NIL-
Member, MACT & XX ASCJ, Bangalore.
**