Bangalore District Court
Sri. Shaik Farrok @ Farook Shaik vs Smt. Channa Basamma on 7 October, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
AT BENGALURU
(SCCH:15)
MVC No.7228/2016
THIS THE 7th DAY OF OCTOBER 2017
Present: RAJANNA SANKANNANAVAR,
B.A., LL.B.,(Spl.)
XIII Addl. Judge,
Court of Small Causes, and
Member MACT, Bengaluru.
Petitioner/s: Sri. Shaik Farrok @ Farook Shaik,
S/o. Fakruddin Shaik, 21 years,
R/o. No.50, 1st Cross,
Near New Town School,
Mangammana Palya, Bengaluru-068.
PERMANENT ADDRESS
No.7-55-2, 1 'C', Bathalapalli,
Mallakalva, Dharmavaram,
Ananthapuram.
(Sri. R.V. Hegde For Petitioner)
V/s
Respondent/s:1 Smt. Channa Basamma,
W/o. Sri.Puttaiah,
Hanumanthapura village,
Billinkote Post, Nelamangala Taluk,
Bengaluru Rural District -562111.
2. The Manager,
The ICICI Lombard Gen. Ins. Co. Ltd.,
No.121, 9th Floor, Estate Building,
Dickenson Road, Bengaluru - 560 001.
(Sri.C.R.Venkatesh adv for Resp No.1
Sri. Gururaj Salur adv for Resp No.2)
SCCH-15 MVC 7228/2016
JUDGMENT
The Petitioner has filed the present petition under Section 166 of Motor Vehicles Act against the respondents together for relief of compensation sum of Rs.10,00,000/- in view of injuries sustained in a road traffic accident.
The case of petitioner is as follows:
2. On 05.10.2016 at about 1.30 p.m., when the petitioner was riding his two wheeler bearing Reg.No.KA-51-EH-9129 from Sarjapura towards Chandapura on Heelalige cross near Muttanallur cross, Chandapura Main road, when he was reached at Muttanallur cross, Chandapura Road, at that of time, the driver of Tata ACE bearing Reg.No.KA-52-A-3064 driven the same from Heelalige cross side i.e. from left side in a rash and negligent manner and dashed against the petitioner's motorcycle, due to which, petitioner has fell down and sustained grievous injuries and his two wheeler damaged very badly. In this regard, Surya City police have registered the case under Cr.No.156/2016. The petitioner was age 21 years and he was earning 20,000/- p.m. by doing Sales Executive in SCCH-15 MVC 7228/2016 Power Point Marketing service Ltd., now after accident injureis lost his employment. Thus the Respondent No.1 is the owner and 2nd respondent is the insurer of Tata ACE bearing Reg.No.KA-52-A-3064 and they have jointly and severally liable to pay the compensation. Hence, petitioner prays to allow the claim petition.
3. In pursuance of the notice to the respondents, in that the respondent No.1 and 2 have appeared through their Advocates and the respondent No.2 is filed objection to the main petition.
The facts of the objection are as follows:
4. In the objection of Respondent No.2, there is no dispute regarding ownership of and insurer of Tata ACE bearing Reg.No.KA-52-A-3064 and denied remaining averments which were made in the petition and contended that, If any liability of this respondent is terms and condition of such policy, further contended that the driver of the insured vehicle has no valid and effective D.L. at the time of accident further contended that the unfortunate accident occurred only due to the negligence on the part of the rider of the motor cycle SCCH-15 MVC 7228/2016 bearing Reg.No.KA-51/EH-9129. Hence, this respondent prays to dismiss the petition against him.
5. On the pleadings of both the parties, this tribunal has framed issues as follows:
1. Whether the petitioner proves that he has sustained injuries due to RTA alleged to have been occurred on 5.10.2015 at about 01.30 p.m., on Chandapura road, near Hilalige cross, Muttanellur Cross, Anekal Taluk, due to the rash and negligent driving of TATA ACE bearing Reg.No.KA-52-A-3064?
2. Whether the petitioner is entitled for compensation? If so, what amount & from whom?
3. What order or award?
6. In order to proving the above issues, petitioner himself examined as PW-1 and got marked Ex.P.1 to Ex.P.10 and on behalf of petitioner Dr. B.Ramesh has been examined as PW.2 and got marked Ex.P.11 and 12 and another witness by name Anil Kumar S. who is Registration Assistant, St.John's Hospital examined as PW-3 and got marked Ex.P.13 to 18.
Respondents have not adduced any oral or documentary evidence.
SCCH-15 MVC 7228/2016
7. Heard arguments of both the sides on merits of the case and perused the record.
8. Now the findings of this Tribunal on the above said issues are answered in the;
Issue No.1: In the Affirmative.
Issue No.2: In the Affirmative Rs.2,50,100/- from the Resp.No.2 Issue No.3: As per final order for the following REASONS
9. I S S U E No.1:- The petitioner has filed present claim petition under the MV Act in view of sustained injuries in RTA which occurred on 05.10.2016 at about 1.30 p.m., on Chandapura road, Heelalige cross, near Muttanallur cross, Chandapura Main road. Herein there is no dispute ownership and insurer of Tata ACE bearing Reg.No.KA-52-A-3064. Further, there is no dispute the policy of such vehicle was orderly. Now PW-1 has deposed the alleged accident was occurred due to rash and negligent driven by the driver of Tata ACE bearing Reg.No.KA-52-A-3064. Contrary to that 2nd respondent contended that the alleged accident was occurred SCCH-15 MVC 7228/2016 due to rash and negligent ridden by the rider who is petitioner of motor cycle bearing Reg.No.KA-51-BH-9129. On perusal of both pleading, herein the question is arise for consideration as whether the said accident was occurred due to actionable negligent driven by the driver of Tata ACE bearing Reg.No.KA- 52-A-3064 or not. In this context, P.W.1 has relied on the copy of FIR at Ex.P.1, Complaint at Ex.P.1(a), Mahazar at Ex.P.2, and charge sheet at Ex.P.4. On perusal of these documents, in that, Ex.P.1 and Ex.P.1(a) discloses that, the Surya Nagar P.S. have registered a case under Cri.No.156/2016 on basis of statement of petitioner, with respect of accident for the investigation of matter, afterward the Surya Nagar Police have conducted investigation and filed the final report against driver of the Tata ACE bearing Reg.No.KA-52-A-3064 for the offence Punishable under sec. 279 and 338 of IPC. On Examined Ex.P.1, 2 and 4, it reveals that the accident was occurred due to an actionable negligent driven by the driver of Tata ACE bearing Reg.No.KA-52-A- 3064. No doubt, such Ex.P.1, 2 and 4 are the police records, such documents are unchallenged and undisputed SCCH-15 MVC 7228/2016 documents, further there is no questioned about sanctity of those documents, as such there is no contrary evidence to such documents, further there is no rebuttal evidence to withdrawal genuine of such documents, further 2nd respondent has not stepped in to witness box to establishing his defence as stated in the statement of objection. Under these circumstance, this tribunal has been accepted the Oral evidence of P.W.1 as well as Ex.P.1, 2 and 4 come to conclusion that accident was occurred on the part of actionable negligence of driven by the driver of Tata ACE bearing Reg.No.KA-52-A-3064. Accordingly Issue No.1 answered in the Affirmative.
10. ISSUE No.2:- PW-1 has produced Wound certificate at Ex.P.3, copy of discharge summary at Ex.P.5 on behalf of petitioner the doctor by name Viz., Dr. B.Ramesh has been examined as PW.2 and he produced OPD and X-ray at Ex.P.11 and 12 and another witness by name Anil Kumar S. who is Registration Assistant, St.John's Hospital has been examined P.W.3 and he produced Authorization letter at Ex.P.13, MLC extract at Ex.P.14, Police intimation at Ex.P.15, X-ray report SCCH-15 MVC 7228/2016 at Ex.P.16, CD at ex.P.16(a), OPD at Ex.P.17 and case sheet at Ex.P.18. On looking to the Ex.P-3 Wound certificate, discharge summary, case sheet, X-rays and oral evidence of P.W.1 and 2 discloses that, the petitioner has sustained injuries as follows:
Fracture shaft of left femur-Middle 1/3rd Such injuries are grievous in nature as stated in the Ex.P.3, with regard to said injuries petitioner underwent for surgery to left thick CRIF + IMILN on 10.10.2016. Further the oral evidence of PW.1 to 3 and documents which were relating to such injuries sustained by the petitioner are not in dispute and further there is no reason for either disbelieves or discard the oral evidence of PW-1 to 3 as well as documentary evidence and such evidence are not in dispute.
11. Now, the petitioner has produced medical bills (12 in Nos.) at Ex.P.10 it comes sum of Rs.21,901/- and 9 prescriptions at Ex.P9. The said medical bills contains every details of the expenses incurred by the claimant are therein. The same are not in dispute and there is no any material on record about contrary to those bills, consequently the same cannot be doubted. Thus, it can be safely taken that the SCCH-15 MVC 7228/2016 petitioner has spent about Rs.21,901/- towards medical expenses, which can be rounded to Rs.22,000/-.
12. Further, as per oral evidence of P.W.1 and 2 and recitals of Ex.P.3-wound certificates, Ex.P.5-Discharge summary and Ex.P.18-case sheet which included discharge summary discloses that the petitioner has admitted on 6.10.2016 and discharged on 17.10.2016 as an inpatient which was shows that the petitioner has taken treatment as an inpatient for 12 days. As such, he was undergone pain and sufferings and spent amount for diet and conveyance during said period. Hence, the tribunal opinion that the petitioner is entitled for compensation sum of Rs.30,000/- towards pain and sufferings, Rs.10,000/- towards diet and conveyance and he has further entitled for a compensation of Rs.20,000/- towards loss of amenities.
13. Further PW.2 has assessed disability to the left lower limb at 26% and assessed the disability at 26% to the whole body. The PW.2 is not treated doctor and the disability assessed by him to whole body is on higher side. Thus, on looking to the fracture sustained by the patient and on SCCH-15 MVC 7228/2016 considered the medical documentary evidence, age of the petitioner and treatment taken by the petitioner. The tribunal has assessed the disability at 8% to the whole body and same is accepted.
14. Whereas, so far the age of petitioner is concerned, PW.1 has deposed that, he was aged at about 21 years at the time of accident. Petitioner has produced his Aadhaar card at ExP.8, in that, the date of birth of petitioner is mentioned as 02.06.1995, admittedly the accident was occurred on 05.10.2016, thus on consider of both dates, it's disclosed that the age of petitioner is 21 at the time of accident. Thus this tribunal accepted Ex.P.8 and oral evidence of PW-1 and comes to conclusion that the age of the petitioner 21 years as on the date of accident. Hence, as per directions in the case Sarla Verma and other V/s Delhi Transport corporation and others, the appropriate multiplier is 18.
15. Now the earning of petitioner is concerned, PW-1 has deposed that, he was working as Sales Executive at POWER POINT Marketing Services Pvt. Ltd., to establishing the the petitioner has produced certificate issued by POWER POINT SCCH-15 MVC 7228/2016 Marketing Services Pvt. Ltd., at Ex.p.6 and pay slip at Ex.P.7 to show his avocation and income. But the petitioner has not examined the author of said documents and he has not produced appointment letter, further he has not been examined authorized person of alleged Powerpoint company, further Ex.P.7 is not period of date of accident, further he has not produced any material to show he has taken payment as show in the Ex.P.7, under this circumstance petitioner has failed to proved his avocation and income at the time of accident, in the absence of specific evidence regarding avocation and income of the petitioner, this tribunal inclined towards notional income of petitioner assessed sum of Rs.8,000/-p.m. since the accident was occurred for the year 2016. Therefore, tribunal has come conclusion that the earning of petitioner was Rs.8,000/- p.m. at time of accident.
16. It is admitted that, petitioner was underwent for taking treatment as an inpatient for 12 days and nature of injury sustained by the petitioner, the Tribunal opines that the petitioner was under bed rest for a period 2 months and lost his earning in the said 2 months. Hence, the petitioner is SCCH-15 MVC 7228/2016 entitled for compensation of Rs.8,000 x 2=16,000/- towards loss of past 2 months earning and loss of future earning can be calculated as Rs.8,000x12x18x8%100 = Rs.1,38,240/-. Which can rounded sum of Rs.1,38,500/
17. Thus, petitioner is entitled for just and reasonable compensation as follows:
Pain and Sufferings Rs. 30,000/-
Loss of laid up period
(8,000x2=16,000/-) Rs. 16,000/-
Medical Expenditure Rs. 22,000/-.
Future Medical Expenditure Rs. 10,000/-
Loss of Future Income Rs.1,38,500/-
Towards diet and conveyance Rs. 10,000/-
Loss of amenities Rs. 20,000/-
Attendant charges during
Hospitalization 300x12=3600/- Rs. 3,600/-
----------------------
Total: Rs.2,50,100/-
with interest at 8% p.a. from the date of petition till the date of payment.
18. Further, so far liability concern, there is no dispute about the respondent No.1 is owner and the respondent No.2 is the insurer of Tata ACE bearing Reg.No.KA-52-A-3064. As such, the accident has occurred and the Petitioner was SCCH-15 MVC 7228/2016 sustained grievous injuries due to rash and negligent driving of the driver of said vehicle. Therefore, 1st respondent has vicariously and respondent No.2 contractually liable to pay the compensation to the petitioner sustained injuries in the accident resulting in permanent disability. Hence, respondents are jointly and severally liable to pay the compensation as calculated in the above table with interest @ 8% p.a. from the date of petition till realization. Further interest is not payable on future medical expenses. Therefore, I answer issue No.2 in the affirmative.
19. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
The respondent No.2 is liable to pay Rs.2,50,100/- to the petitioner with interest @ 8% p.a., till realization. However, the interest is not payable on future medical expenses.
SCCH-15 MVC 7228/2016
Hereby directed to Respondent No.2 for deposit the compensation amount before the court within two months from the date of Award.
After deposit of the amount, in that, 60% shall be released in favour of the petitioner through account payee cheque with proper identification. The Balance amount of 40% and interest shall be deposited in the name of the petitioner in any nationalized or schedule bank for a period of 3 years.
Advocate's fee is fixed at Rs. 1,000/-.
Draw award accordingly.
(Dictated to the stenographer, directly on computer, corrected and then pronounced in the open Court by me on this the 7th day of October 2017) (RAJANNA SANKANNAVAR) XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW-1: Sri Shaik Farroq @ Farroq Shaik PW-2: Dr. B.Ramesh PW-3: Anil Kumar. S
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
-None-
LIST OF DOCUMENTS Marked ON BEHALF OF PETITIONER:
Ex.P1 : FIR
Ex.P.1(a) Complaint
Ex.P2 : Mahazar
Ex.P.3 Wound certificate
Ex.P4 : Final Report
SCCH-15 MVC 7228/2016
Ex.P5 : Discharge summary
Ex.P6 : Certificate
Ex.P7 : Pay slip
Ex.P8 : Aadhaar card
Ex.P9 : 9 medical prescriptions
Ex.P10 : 12 medical bills
Ex.P.11: OPD
Ex.P.12: X-ray
Ex.P.13: Authorisation letter
Ex.P.14: MLC extract
Ex.P.15: Police intimation
Ex.P.16: X-ray report
Ex.P.16(a) CD
Ex.P.17 OPD
Ex.P.18 Case sheet
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS: -
Nil -
(RAJANNA SANKANNAVAR), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.