Bangalore District Court
Sri.Keshavamurthy vs The Orientanl Insurance on 1 March, 2016
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
MVC No.551/2015
Dated this the 1st day of March 2016
Petitioner/s : Sri.KESHAVAMURTHY
S/o Sonnappa,
Aged about 28 years,
R/at No.4, 67th cross,
Renukanagara,
Sarjapura, Sarjapura Hobli,
Anekal Taluk,
Bangalore District.
Also at office at :
Confident Group,
No.4, B.T.M. ring road,
Ist stage, B.T.M. Layout,
Bangalore-560 068.
At the time of incident his
R/at Chambenahalli village,
Sarjapura Hobli,
Anekal Taluk,
Bangalore District.
V/s (By pleader Sri NS)
Respondent/s 1. THE ORIENTANL INSURANCE
CO.LTD.,
Office at T.P HUB,
No.44/45, 4th floor,
SCCH-14 2 MVC No.551/2015
Leo shopping complex,
M.G road, Bangalore-25.
(By pleader Sri KN)
2. SRI. MURTHY
S/o Anjinappa
Aged about 31 years,
R/at No.718/23,
9th cross, Kuralappa Layout,
Maruthi Nagara,
Kogilu main road,
Yalahanka,
Bangalore-64.
(By pleader Sri GSN)
XVI ADDL. JUDGE,
Court of Small Causes & MACT.,
BANGALORE.
SCCH-14 3 MVC No.551/2015
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.20,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 14.07.2013 at 05.30 p.m., the petitioner was riding his motorcycle bearing No.KA-03-HA-4495 from Sarjapura to Dommasandra main road with a moderate speed keeping himself on the left side of the road. When he reached near Chambenahalli Gate, Sarjapura, Bangalore main road, Sarjapura Hobli, Anekal Taluk, at that time, Hero Honda passion plus motorcycle bearing No.KA-01-EG-6998 ridden by its rider in rash and negligent manner from opposite direction came and dashed against the petitioner's motorcycle. Due to impact, the petitioner fell down and sustained grievous injuries all over the body and also said motorcycle was totally damaged. Immediately, the petitioner was taken to SMS Multi specialty Hospital, Bangalore wherein he was admitted as an inpatient for 8 days i.e., from 14.07.2013 to 21.07.2013. He underwent surgery to his left femur shaft mid 1/3rd, CRIF with interlocking nail and discharged on 21.07.2013 with an advice for regular check up i.e., once in 15 days.
Thereafter, the petitioner was admitted in Vydehi Institute of Medical Science Hospital and Research Center in two occasion i.e., from 13.12.2013 to 18.12.2013 and 23.12.2013 to 03.01.2014. He again underwent surgery and discharged with an advice to take follow up treatment and bed rest until injuries were healed. The SCCH-14 4 MVC No.551/2015 petitioner spent Rs.5,00,000/- towards medical expenses, nourishment, conveyance charges etc., He requires to undergo one more surgery for removal of implants. Prior to the accident, the petitioner was hale and healthy, was aged 28 years, was working as a Technical Assistant Projects at M/s Confident Group (Projects), BTM Layout ring road, Bangalore and was getting a salary of Rs.20,263/- per month and also he was doing real estate business and was earning more than Rs.50,000/- per month. Due to accidental injuries, he cannot attend to his work as a result loss of earning and earning capacity. He was put to untold hardship, mental agony, damages etc., Sarjapura Police have registered Cr.No.194/2013 for the offences punishable U/Sec.279, 337 of IPC. The respondents are the insurer and owner of motorcycle bearing No.KA-01-EG-6998 and are jointly and severally liable to pay the compensation. Hence, the petitioner has filed this petition for compensation of Rs.20,00,000/- with Court cost and interest.
3. In pursuance of the notices, the respondents have appeared before the Court through their respective counsel and filed objection statements separately. The respondent no.1 has denied the issuance of policy in favour of the respondent no.2 in respect of motorcycle bearing No.KA-01-EG-6998 and also denied the other averments of the petition as false. He has contended that the petition is not maintainable either in law or facts, that the said motorcycle was not involved in the accident, that the rider of the motorcycle was not holding a valid and effective driving licence on the date of accident, that the owner has committed breach of terms SCCH-14 5 MVC No.551/2015 and conditions of the policy, that he is not liable to indemnify the respondent no.2, that the compensation claimed by the petitioner is exorbitant, fashionable one and without any basis, that the owner and concerned police have not complied with their mandatory duties, that the petition is bad for non joinder of necessary parties, that there was no negligence on the part of the rider of the said vehicle. Hence, he has sought for dismissal of the petition with costs as against him.
The respondent no.2 has admitted that he is the owner of motorcycle bearing No.KA-01-EG-6998, but he has denied the other averments of the petition as false. He has contended that the said vehicle was insured with the respondent no.1, that he does not know who caused accident to the petitioner, that there was no negligence on his part, that the petitioner has given a false complaint before the police involving his motorcycle with sole intention to make illegal gain for himself and to cause wrongful loss to him, that he is no way responsible for the alleged accident and his vehicle was not involved in the accident, that the compensation claimed by the petitioner is highly exorbitant and unreasonable. Hence, he has sought for dismissal of the petition as against him.
4. On the basis of above pleadings, the following issues were framed:
SCCH-14 6 MVC No.551/2015ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 14.07.2013 at about 05.30 p.m., near Chambenahalli Gate, Sarjapura-
Bangalore Main road, Sarjapura Hobli, Anekal Taluk, Bangalore Rural District, in an accident arising due to rash and negligent riding of rider of Hero Honda Passion Plus motorcycle bearing No.KA-01-EG-6998?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined a doctor as PW.2. He has got marked documents as Ex.P1 to P18. The respondents have not adduced any evidence on their behalf.
6. Heard the arguments. The counsel for the petitioner has relied upon following rulings:
1. 2011 (4) SCC 693: Ravi Vs., Badrinarayan & Ors.,
2. 2011 ACJ 911: Ravi Vs., Badrinarayan & Ors.,
3. 2004 (3) Kar.L.J 288 (DB):
K.Narasimha Murthy Vs. The Manager, Oriental Ins., Co.Ltd., Bangalore & Anr.,
4. 2003 ACJ 12: Nagappa V. Gurudayal Singh & Ors., I have gone through the said rulings and perused the records.SCCH-14 7 MVC No.551/2015
7. My findings on the above issues are as under:-
Issue No.1: In Affirmative.
Issue No.2 : In Affirmative, For Rs.4,99,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1:- The petitioner is claiming compensation for the injuries caused to him in the accident. The respondent no.2 is the owner of motorcycle bearing No.KA-01-EG-6998 who has denied the averments of the petition as false and denied his liability to compensation to the petitioner. The respondent no.1 has denied the issuance of the policy in favour of the respondent no.2 in respect of motorcycle bearing No.KA-01-EG-6998, but during trial, he has impliedly admitted the issuance of policy to the respondent no.2. He has produced copy of policy during arguments and thereby admitted the existence of policy to motorcycle bearing No.KA-01-EG-6998 on the date of accident. He has denied the case of the petitioner as false and contended that the accident was due to negligence of the petitioner. Both the respondents have denied the involvement of motorcycle bearing No.KA-01-EG-6998 in the accident. But, no evidence is produced by the respondents to substantiate their specific defence. Hence, contentions raised by the respondents in their written statement are liable to be rejected.
9. The petitioner has examined himself and a doctor as PW.1 and 2. Oral evidence of PW.1 is as per his pleading. Evidence SCCH-14 8 MVC No.551/2015 of PW.2 corroborates the evidence of PW.1 as to injury. PW.2 has stated that the petitioner has suffered permanent disability due to accidental injury. There is dispute as to correctness of his assessment as to extent of disability which can be dealt later on. There is nothing on record to disbelieve the evidence of PW.1 and 2 as to causing of grievous injury to the petitioner in the accident. There is no evidence to rebut the oral evidence of PW.1 as to manner of accident. Denials extracted during his cross examination are not sufficient to disbelieve his evidence.
10. Copy of FIR, of chargesheet, of ordersheet, of PF, of letter, of IMV authority, of bond, of panchanama, of statement of witnesses are at Ex.P1 to 3, 11 to 15 which corroborate the evidence of PW.1 as to manner of accident and negligence of rider of motorcycle bearing No.KA-01-EG-6998. There was a delay of 6 days in lodging complaint, but wound certificate and case sheet at Ex.P4 and 17 reveal that there was no delay in admitting the petitioner to hospital. Involvement of two motorcycles in the accident is mentioned in chargesheet. History of injury of the petitioner is shown as RTA in wound certificate. Panchanama reveals that the police have seized both the motorcycles from the place of accident in damaged condition. There is no explanation from the respondents as to existence of motorcycle bearing No. KA-01-EG-6998 in the place of accident and as to damages found on it.
11. The police have filed chargesheet against the rider of motorcycle bearing No.KA-01-EG-6998 for the offences punishable SCCH-14 9 MVC No.551/2015 U/Sec.279 and 338 of IPC indicating the negligence of said rider. Evidence of PW.1 establishes the case pleaded in the petition. Contents of police records corroborate his evidence as to manner of accident, cause for the accident and its result.
12. Copy of wound certificate is at Ex.P4 and it is consistent with the oral evidence of PW.1 and 2. Discharge summaries are at Ex.P5 which go to show the nature of injury caused to the petitioner in the accident and nature of treatment given to him in the hospitals. The petitioner sustained fracture of left femur. PW.2 has deposed that the petitioner suffered permanent disability. X-rays at Ex.P18 disclose the fracture. Clinical notes support the version of PW.2 as to extent of disability. There no evidence on behalf of the respondents to rebut the case of the petitioner. I am of the opinion that evidence of PW.1 and 2 and contents of Ex.P1 to 5, 11 to 18 prove this issue. Hence, I answer the same in affirmative.
13. ISSUE NO.2: The petitioner has examined himself and Dr.Roshan Kumar Bhandari as PW.1 and 2. Copy of wound certificate, discharge summaries, OP cards, clinical notes, casesheet and X-rays at Ex.P4, 5, 8, 16 to 18 corroborate the evidence of PW.1 and 2 and reveal that the petitioner has sustained fracture of left fibula. He was an inpatient in two hospital for a total period of 37 days in 4 admissions. Course of treatment given to him is as under:
SCCH-14 10 MVC No.551/2015Ist Admission from 14.07.2013 to 21.07.2013:
CRIF with Interlocking nail was performed on 15.07.2013.
IInd Admission from 13.12.2013 and 18.12.2013:
Proximal screw removal left femoral IMIL with bone marrow aspirin left tibia.
IIIrd Admission from 23.12.2013 to 03.01.2014:
Infected wound of left femur was treated conservatively.
IVth Admission from 01.03.2015 to 11.03.2015:
Surgical removal of implant.
OP records at Ex.P8 disclose that the petitioner took follow up treatment and rest after his discharge from hospital on each occasion. PW.1 has stated that he took follow up treatment for 20 times which is not corroborated. However, his evidence can be believed to the extent of corroboration from Ex.P8. I am of the opinion that the petitioner might have taken rest for about 3 to 3½ months. He was an inpatient for about 37 days. Thus, total laid up period comes to 5 months. During the said period, the petitioner might have spent amount for nourishment, conveyance and attendant charges apart from incurring medical expenses.
There is no evidence to corroborate oral evidence of PW.1 as to nourishment, conveyance and attendant charges, but he has got marked medical bills as Ex.P6 and prescriptions as Ex.P7. Total amount of medical bills is Rs.2,90,731/-. Prescriptions support the bills which are consistent with case sheet. There is nothing on SCCH-14 11 MVC No.551/2015 record to believe that the medical bills are created. However, IP advance receipts are included in the list. Discount and concessions are ignored while calculating the total. If IP receipts amounts and miscalculated amounts are deducted, the net of amount of medical bills comes to Rs.1,98,236/-. Hence, I am of the opinion that the petitioner is entitled for a compensation of Rs.40,000/- towards pain and sufferings, Rs.2,00,000/- towards medical expenses, Rs.20,000/- towards nourishment, conveyance and Rs.10,000/- towards attendant charges.
14. Evidence of PW.1 and 2 reveal that the petitioner has suffered permanent disability due to accidental injury. Evidence of PW.2 and contents of Ex.P16 disclose that extent of disability caused to petitioner is 58.4% to left lower limb and of 29.2% to whole body. However, PW.2 has admitted that fracture is united. PW.1 has admitted that implants are removed. Discharge summaries confirm the removal of implants. There is no infection in fracture site. Hence, I am of the opinion that if whole body disability is considered as 1/3rd disability of left lower limb, it will meet the ends of justice. More weightage is given to extra points. If weightage of extra points is reduced to 7%, total disability of left lower limb comes to 57%. Then, whole body disability would be 19%. The petitioner has to live with such disability which is physical as well as functional resulting in loss of amenities. Hence, I award a compensation of Rs.25,000/- towards loss of amenities.
15. PW.1:Keshava Murthy has stated about his age, occupation and income. There is no document regarding his age.
SCCH-14 12 MVC No.551/2015Police records and medical records reveal his age as 28 years. If same is considered as his age, appropriate multiplier is 17. Documents produced by the petitioner are contradictory to the evidence of PW.1 as to income. However, the pay slips and salary certificate at Ex.P9 and 10 are believable which reveal that the petitioner was working as Technical Assistant in Confident Group and was getting a gross salary of Rs.18,704/- per month as on the date of accident. Statutory deductions are to be considered. After deduction of same, monthly income of the petitioner comes to Rs.18,000/-. There is no evidence as to termination of service of the petitioner. PW.1 has stated that his employer has paid salary for 3 months after the accident and thereafter, he has not paid the salary. It is not his case that he has resigned the job or he was terminated from service. Looking to the admissions of PW.1 and period of his rest, it can be said that the petitioner might have lost income for about 3 months. Hence, I award a compensation of Rs.54,000/- towards loss of income during laid up period. Since, there is no evidence as to termination of the petitioner from service, I am of the opinion that the petitioner has continued his job in the same company on the same salary. Thus, the petitioner has not lost future income. His earning capacity is not affected. However, he has to live with disability of 57% to left lower limb and 19% to whole body. Hence, I am inclined to award a compensation of Rs.1,50,000/- towards disability. There is no evidence as to requirement of future medical expenses. Only on the basis of rulings, compensation cannot be awards for future medical SCCH-14 13 MVC No.551/2015 expenses. Thus, the petitioner is entitled for just and reasonable compensation as under:
1. Pain and sufferings Rs. 40,000/- 2 Medical expenses Rs.2,00,000/- 3 Nourishment and conveyance Rs. 20,000/- 4 Attendant charges Rs. 10,000/- 5 Loss of income during laid up Rs. 54,000/-
period 6 Disability Rs.1,50,000/-
7 Loss of amenities Rs. 25,000/-
Total Rs.4,99,000/-
The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
Liability
16. The respondents are the insurer and owner of motorcycle bearing No.KA-01-EG-6998. The accident has occurred due to rash and negligent riding of the rider of said motorcycle. Therefore, the respondents are jointly and severally liable to pay compensation to the petitioners as stated above. The policy was in force on the date of accident. The respondent no.1 has not adduced any evidence that the respondent no.2 has committed breach of terms and conditions of the policy. Hence, the respondent no.1 is liable to indemnify the respondent no.2 and to compensate the petitioner as stated above. Consequently, I answer the issue as above.
17. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
SCCH-14 14 MVC No.551/2015ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,99,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,99,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance and interest shall be released in favour of petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 1st day of March 2016) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 15 MVC No.551/2015
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Keshava Murthy
PW.2 Dr.Roshan Kumar Bhandari
Respondent' s Nil
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of Charge Sheet
Ex.P3 - Copy of Order sheet in CC No.936/13
Ex.P4 - Copy of Wound Certificate
Ex.P5 - Discharge Summary (4 in nos)
Ex.P6 - Medical bills (93 in nos amounting to Rs.2,90,731/-)
Ex.P7 - Prescriptions
Ex.P8 - OP records
Ex.P9 - Pay slips (2 in nos)
Ex.P10 - Salary Certificate
Ex.P11 - Copy of PF
Ex.P12 - Copy of Letter of IMV authority.
Ex.P13 - Copy of Bond
Ex.P14 - Copy of Panchanama
Ex.P15 - Copy of Statements
Ex.P16 - Disability assessment form
Ex.P17 - IP Records
Ex.P18 - X-rays (20 in nos)
Respondent's Nil
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 16 MVC No.551/2015
Dt.01.03.2016
P-NS
R1-KN
R2 -Exparte
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,99,000/- with interest @ 9% per annum from the date of petition till the date of payment.SCCH-14 17 MVC No.551/2015
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,99,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance and interest shall be released in favour of petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 18 MVC No.551/2015
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.551/2015 Petitioner/s : Sri.KESHAVAMURTHY S/o Sonnappa, Aged about 28 years, R/at No.4, 67th cross, Renukanagara, Sarjapura, Sarjapura Hobli, Anekal Taluk, Bangalore District.
Also at office at :
Confident Group, No.4, B.T.M. ring road, Ist stage, B.T.M. Layout, Bangalore-560 068.
At the time of incident his R/at Chambenahalli village, Sarjapura Hobli, Anekal Taluk, Bangalore District.
V/s (By pleader Sri NS) Respondent/s 1. THE ORIENTANL INSURANCE CO.LTD., Office at T.P HUB, No.44/45, 4th floor, Leo shopping complex, M.G road, Bangalore-25.
(By pleader Sri KN) SCCH-14 19 MVC No.551/2015
2. SRI. MURTHY S/o Anjinappa Aged about 31 years, R/at No.718/23, 9th cross, Kuralappa Layout, Maruthi Nagara, Kogilu main road, Yalahanka, Bangalore-64.
(By pleader Sri GSN) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for
the injuries sustained by the petitioner/Death of in a
motor Accident by vehicle No.
WHEREAS, this claim petition coming up before
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
SCCH-14 20 MVC No.551/2015The petitioner is entitled for a compensation of Rs.4,99,000/- with interest @ 9% per annum from the date of petition till the date of payment.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,99,000/- with interest. In view of policy, the respondent No.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,00,000/- shall be deposited in the name of the petitioner in any nationalized, scheduled or co-operative bank for a period of 3 years. Balance and interest shall be released in favour of petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2016.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
SCCH-14 21 MVC No.551/2015By the __________________________________ Petitioner/s Respondent No.1 No.2 _________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. -----------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 22 MVC No.551/2015
SCCH-14 23 MVC No.551/2015