Bangalore District Court
Venugopal.M vs Mohsina Taj on 7 June, 2024
SCCH-14 1 MVC.1367/2022
KABC020081082022
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BANGALORE CITY.
SCCH14
Dated : This the 7th day of June 2024
Present : SRI. YATHISHA.R.
B.A.L.,L.L.B.,
MEMBER, MACT,
XVI ADDL. JUDGE,
COURT OF SMALL CAUSES,
BENGALURU.
MVC No.1367/2022
Petitioner: Sri.Venugopal.M.
C/o Manikyam,
Age: 64 years,
Occ: Painter,
No.8/81, 8th Cross,
Joseph Layout,
Lingarajapuram,
Bangalore North,
St.Thomas Town,
Bengaluru - 560084.
(By Sri.Ketan.S.Latur,Adv)
Vs
Respondents : 1.Smt.Mohsina Taj,
W/o Akram Hussain,
SCCH-14 2 MVC.1367/2022
No.1329, 4th Main,
Bharathmatha Layout,
Venkateshpuram,
Bangalore - 560 045.
(Exparte)
2.The Manager,
Shriram General Insurance
Company Limited,
3/5, 3rd Floor, SV Arcade,
Bilakahalli Main Road,
Off, Bannerghatta Main Road,
IIM Post, Bengaluru - 560076.
(By Sri.Raghavendra Bhat,Adv)
:JUDGMENT:
This Claim Petition is filed by the Petitioner against the Respondents under Section 166 of the Motor Vehicles Act seeking Compensation of Rs.10,00,000/ for the injuries sustained in the Road Traffic accident.
2. The substance of averments made in the Petition is as under:
That on 02022022 at about 9.40 a.m., the Petitioner was crossing the road near SBI bank, opposite Shobha store, Lingarajapura main road. At that time, a Dio scooter bearing No.KA03JZ3125 ridden by its rider came in a rash and SCCH-14 3 MVC.1367/2022 negligent manner and dashed against the petitioner. Due to the impact, the petitioner sustained grievous injuries. Immediately after the accident, the Petitioner was shifted to ZION hospital, wherein he was treated as an inpatient.
Prior to the accident, the Petitioner was hale and healthy and he was working as painter and was earning a sum of Rs.24,000/ p.m. Due to the accident, he has sustained grievous injuries causing permanent disablement.
The Respondent No.1 is the owner of the offending vehicle and the Respondent No.2 is the insurer of the Dio scooter and therefore, both Respondents are jointly and severally liable to pay the compensation to the Petitioner. Hence, this Petition.
3. In pursuance of service of notice to the Respondents, Respondent No.1 remained absent, as such he was placed exparte. Respondent No.2 appeared before the court through it's counsel and filed objections to the main petition.
In the Objection Statement of Respondent No.2, it denied the age, avocation and income of the Petitioner and also denied the accident caused by the rash and negligent riding by the SCCH-14 4 MVC.1367/2022 rider of scooter. Further it has denied the injuries sustained by the Petitioner in the accident and the expenses incurred for the medical treatment. Further it admitted the issuance of policy in respect of scooter in favour of 1 st respondent. It is further contended that the accident was not caused due to rash and negligent riding of offending vehicle by its rider. Further contended that the accident occurred due to negligence of petitioner himself who was crossing the road unmindfully. Hence, among these and other grounds, Respondent No.2 has prayed to dismiss the petition against it.
4. On the basis of the above pleadings, my learned predecessor has framed the following Issues.
ISSUES
1. Whether the Petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 02022022 at about 9.40 a.m., near SBI bank, opposite Shobha store, Lingarajapura main road, in an accident arising due to rash and SCCH-14 5 MVC.1367/2022 negligent riding of rider of Dio scooter bearing No.KA03JZ3125?
2. Whether the petitioner is entitled for the compensation? If so. How much and from whom?
3. What Order or Award?
5. In order to substantiate the case of the Petitioner, the Petitioner got examined himself as P.W.1 and got marked 13 documents as per Ex.P.1 to P.13. He also got examined two witnesses as P.W.2 and PW.3 and got marked documents as per Ex.P14 to 19 and closed his side evidence. On the other hand, the Respondents have not chosen to adduce any evidence.
6. The Learned counsel for the petitioner has relied on the following citations:
1.2012 ACJ 1459 (SC) (DB) (Manoj Rathaur Vs. Anil Raheja and others) 2.2014 ACJ 627 9SC)(DB) (Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co.Ltd.,) 3.2015 ACJ 721 (SC)(DB) (Jakir Hussein Vs. Sabir and others) SCCH-14 6 MVC.1367/2022 4.2022 AAC 608 (J&K) (National Insurance Co.Ltd., Vs. Mohd.Anwar Bhat and others) 5.2004 ACJ 1091 (KANT)(DB) (A.Anandan Vs. Abdul Azeez and others)
6. 2017 ACJ 1065 (KANT)(DB) (M.S.Lokesh Vs. Achappa and another)
7. Having heard the arguments of the learned Counsel for the Petitioner and the learned Counsel for the Respondent No.2, upon perusal of the depositions, documents exhibited, citations relied by the learned counsel for the petitioner and materials available on record, my answer to 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 Order for the following :
REASONS
8. Issue No. 1 : It is the case of the Petitioner that he had sustained grievous injuries in the Road Traffic accident that occurred on 02022022 at about 9.40 a.m., due to the rash SCCH-14 7 MVC.1367/2022 and negligent riding of the scooter bearing No.KA03JZ3125 by its rider.
9. On the other hand, the Respondent No.2 has denied the accident caused by the rash and negligent riding of the offending scooter bearing No.KA03JZ3125 by its rider.
10. In order to prove the case of the Petitioner, he got examined himself as P.W.1 and got marked 13 documents as per Ex.P.1 to Ex.P13. P.W.1 has reiterated the Petition averments in his chiefaffidavit. Ex.P1 to Ex.P9 are the certified copies of FIR, complaint, spot panchanama along with sketch, IMV report, Wound certificate and charge sheet, Order sheet of CC.No.11560/2022, substance of accusation and notice issued u/s 133 of MV Act and reply to the said notice.
Ex.P.10 is the Discharge summary. Ex.P.11 is the medical bills, Ex.P.12 is the prescriptions and Ex.P.13 is the notarised copy of Aadhar card.
11. Upon going through Ex.P1 and 2 i.e., FIR and Complaint, same is evident that on the complaint lodged before SCCH-14 8 MVC.1367/2022 Banasawadi Traffic Police station, the SHO of the concerned Police Station has registered the case against the rider of scooter bearing No.KA03JZ3125 for the offences punishable under Sec.279, 338 of IPC. Ex.P.3 i.e., the certified copy of Spot Mahazar along with spot sketch which justifies that same are drawn in the presence of panchas, The document Ex.P.4 i.e., the certified copy of IMV report justify the fact of involvement of the offending vehicle in the accident and the said document also discloses that the cause of accident was not due to any mechanical defects of the vehicle involved in question. The document Ex.P.5 i.e., the certified copy of wound certificate discloses that as a result of RTA the petitioner sustained grievous and simple injuries. The charge sheet document marked at Ex.P.6 discloses the fact that after thorough investigation IO has charge sheeted the rider of scooter bearing No.KA03JZ3125 for the offences punishable under Secs.279, 338 of IPC.
12. Further, P.W.1 examined medical record incharge as P.W.2 and got marked authorisation letter and case sheet at SCCH-14 9 MVC.1367/2022 Ex.P.14 and 15.
13. Further, P.W.1 examined Dr.S.A.Somashekara as P.W.3 and got marked OPD records with examination report and Xray at Ex.P.18 and 19. He also reiterated about the injuries sustained by the Petitioner in a RTA.
14. To rebut the evidence of P.W.1, the Learned Counsel for Respondent No.2 cross examined the P.W.1. In the cross examination P.W.1 has admitted the suggestion that as per aadhar card his date of birth is 21051957. He also admits that on the fatal day, he was crossing the road in the place which he is not meant to cross the same. There is also admission of the fact that where PW.1 was crossing the road there was no zebra crossing or any indication which permits such crossing of road by pedestrian. It is also relevant to note that at para No.4 of his cross examination PW.1 has categorically admitted that had he crossed the road at a distance of a road 10 ft. behind the place of occurrence of accident as per the instruction of the traffic police, he could have avoided the occurrence of accident. Such admission of SCCH-14 10 MVC.1367/2022 PW.1 supports the contention of respondent No.2 that there is contribution from the petitioner as well in the occurrence of accident. Keeping this in mind, if careful consideration is given to the document i.e., spot sketch, it clarifies that at the place of occurrence of accident as admitted there was no indication of zebra crossing. Such being the case, this Tribunal is of the view that if contribution from the end of petitioner is considered at 10% for the occurrence of accident it would meet the ends of justice and equity. Tribunal arrives at this quantum for the reason keeping in mind the time of occurrence of accident. Record speaks that according to the parties the accident occurred at about 9.40 a.m. which means during the day time . Though there was any contribution from the injured/petitioner, though the petitioner was considered to be negligent while crossing the road, the fact that the rider of scooter could have avoided the accident cannot be easily ruled out. Had the accident occurred during the night time/dark the situation would have been different. Apart from this, the PW.1 has denied the other suggestions of the Learned Counsel for SCCH-14 11 MVC.1367/2022 Respondent No.2.
15. Further, the Respondent No.2 has not adduced any evidence to rebut the evidence of petitioner. In addition to this, the IO after thorough investigation filed a charge sheet against the rider of scooter bearing No.KA03JZ3125. The said charge sheet admittedly remained unchallenged till date. Therefore, having regard to the facts and circumstances of the case and the deposition and documents exhibited, this Tribunal is of the considered opinion that the accident is occurred by the rash and negligent riding of scooter bearing No.KA03JZ3125 by its rider to the extent of 90% and it is held that the petitioner himself contributed 10% to the occurrence of accident. As the observation is of the contributory negligence of the petitioner as well which resulted in occurrence of accident, Issue No.1 is answered 'Partly in the Affirmative'.
16. Issue No. 2 : As the petitioner has proved that the accident has occurred due to the rash and negligent riding of SCCH-14 12 MVC.1367/2022 the rider of scooter bearing No.KA03JZ3125 by its rider, the Petitioner is entitled for compensation.
17. In the petition, the Petitioner has shown his age as 64 years. He has produced aadhar card at Ex. P.13 to prove his age. As per aadhar card, his date of birth is 21.05.1957. The accident has taken place on 02.02.2022. Hence, the age of the Petitioner, as on the date of accident was taken as 65 years and the same is to be taken for consideration.
18. Further, the petitioner has averred that he was working as painter and earning a sum of Rs.24,000/p.m. In this regard, he has not produced any documents to prove his avocation. Therefore, in the absence of any income proof, this Tribunal is of the opinion that, since the accident has been occurred in the year 2022, the notional income to be assessed as per the guidelines of the Karnataka State Legal Service Authority i.e. 15,500/ p.m. for the purpose of assessment of compensation.
19. With this background, the quantum of compensation SCCH-14 13 MVC.1367/2022 to which the Petitioner is entitled may be adjudicated. For the sake of convenience, discussion may be had under following heads :
I COMPENSATION TOWARDS PAIN, SHOCK AND SUFFERING:
20. The Petitioner has sustained grievous injuries. As per the Wound Certificate, the Petitioner has sustained following injuries.
1.Swelling tenderness with restricted movements present over the outer aspect of upper third of right arm.
2. Swelling with tenderness present over outer aspect of upper part of left leg.
3.Abrasion present over the outer aspect of upper third of right forearm measuring 4 cm x 2 cm.
The doctor has opined that injury No.1 and 2 are grievous in in nature and injury No.3 is simple in nature. Further, P.W.3 Dr.S.A.Somashekar has also reiterated the same in his SCCH-14 14 MVC.1367/2022 evidence. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that, awarding compensation of Rs.30,000/ under this head would be just and reasonable.
II COMPENSATION TOWARDS LOSS OF AMENITIES :
21. Bearing in mind the nature of the injuries sustained by the Petitioner, I am of the opinion that awarding compensation of Rs.20,000/ under this head would be just and reasonable.
III COMPENSATION TOWARDS LOSS OF INCOME DURING THE LAID -UP PERIOD:
22. The Petitioner has averred in the petition as well as in his evidence that he was admitted as an inpatient from 0202 2022 to 04022022 at ZION hospital. Therefore, the total period which the petitioner was admitted as an inpatient is 4 days.
23. Having regard to the nature of injuries sustained by the Petitioner, I am of the opinion that the laid up period may be considered as one month. Hence, the Petitioner is entitled SCCH-14 15 MVC.1367/2022 for compensation of Rs.15,500/ under this head (@ Rs.15,500/ per month).
IV COMPENSATION TOWARDS ATTENDANT'S CHARGES, EXTRA DIET & NOURISHMENT AND CONVEYANCE :
24. Admittedly, the Petitioner has sustained injuries and during the laid up period, the Petitioner might have engaged an attendant and also he might have spent some amount towards extra diet and nourishment and for his conveyance. In the facts and circumstances of the case, awarding compensation of Rs.5,000/ towards attendants charges, Rs.5,000/ towards extra diet and nourishment and Rs.5,000/ towards conveyance would be just and reasonable. In all, the Petitioner is entitled for compensation of Rs.15,000/ under this head.
V. COMPENSATION TOWARDS MEDICAL EXPENCES :
25. The Petitioner has deposed that he spent Rs.1,50,000/ towards medical expenses. The petitioner has produced 30 medical bills at Ex.P.11 amounting to SCCH-14 16 MVC.1367/2022 Rs.33,863.63/. I have perused the same carefully. Careful perusal of Ex.P.11 justifies the fact that petitioner has spent Rs.33,863/. Moreover, the medical bills are not disputed by the respondent No.2. They appears to be acceptable. Hence, the petitioner is entitled for sum of Rs.33,863/ which is rounded off to Rs.33,900/ as a compensation under this head.
VI COMPENSATION TOWARDS LOSS OF FUTURE EARNINGS/COMPENSATION TOWARDS PERMANENT DISABILITY :
26. The Petitioner has alleged that due to the injuries sustained by him in the accident, he has suffered permanent disablement and due to the injury he cannot stand for longer period, cannot climb stairs, cannot squat on ground, cannot move his left leg and right hand freely as before, cannot walk without the help of stick, cannot walk longer distance, cannot use his right hand for routine activities as it is 100% disabled.
Even in his evidence, P.W.1 has deposed to that effect.
27. Further, the Petitioner got examined medical record SCCH-14 17 MVC.1367/2022 incharge of ZION hospital as P.W.2 and got marked authorisation letter and case sheet at Ex.P.14 to 17.
28. Further, the Petitioner got examined doctor by name Dr.S.A.Somashekara as P.W.3 who also deposed regarding the injuries sustained by the petitioner in a road traffic accident and examination he made. Further, he got marked OPD record with examination report and Xray at Ex.P.18 and 19. He assessed total disability of both limbs at 62% and whole body at 31%.
29. In the crossexamination PW.3 has stated that he has not personally treated the petitioner earlier. He has admitted the suggestion that humerus is mal united and tibia is united. He has denied the suggestion that he has given higher rate of disability to the Petitioner.
30. Hence, having regard to the medical records placed on hand and the nature of the injuries sustained by the Petitioner keeping in mind the age of the petitioner and by considering the nature of his work, upon consideration of the fact that the SCCH-14 18 MVC.1367/2022 petitioner got examined himself before this court as PW.1 and also tendered for cross examination done at length by the learned advocate for respondent No.2 during which he could be able to give rational answers to the questions and regarding the facts of the case, I am of the opinion that disability assessed by PW.3 it would be just and proper to consider such disability at the rate of 12% and so also the physical disability assessed by the PW.3. Considering all these aspects, this Tribunal is of the opinion that it would be just and reasonable if the disability of the Petitioner is considered at 12%.
31. As per Sarla Verma's Case (2009 ACJ 1298 SC), the multiplier applicable to the age of Petitioner is 7. With multiplier of 7, income of Rs.15,500/ per month and disability of the Petitioner with respect to his whole body at 12%, the loss of future income comes to Rs.1,56,240/ (Rs.15.500/ x 12 = 1,86,000/, Rs.1.86,000/x 7 x 12/100 = 1,56,240/). Hence, the Petitioner is entitled for compensation of Rs.1,56,240/ under this head.
SCCH-14 19 MVC.1367/2022
TOTAL COMPENSATION TO WHICH THE PETITIONER IS ENTITLED:
32. To sum up, the Petitioner is entitled for compensation under the following heads :
1. Pain, shock & Suffering Rs. 30,000/
2. Loss of amenities Rs. 20,000/
3. Attendant's charges, Extra Rs. 15,000/ diet, and conveyance
4. Medical expenses Rs. 33,900/
5. Loss of income during the Rs. 15,500/ laid up period
6. Loss of Future income Rs.1,56,240/ Total Rs.2,70,640/ Thus, totally the Petitioner is awarded compensation of Rs.2,70,640/ with costs and simple interest at 6% p.a. from the date of this petition till the date of realization.
33. Regarding Liability: This Court has arrived at the conclusion that the accident has been occurred by the rash and negligent riding on the part of the rider of scooter bearing No.KA03JZ3125. The respondent No.1 is the owner and respondent No.2 is the insurer of scooter. The Policy is valid and in force at the time of accident. There is no dispute about SCCH-14 20 MVC.1367/2022 the validity of the policy. Therefore, Respondent No.1 and 2 are jointly and severally liable to pay 90% of compensation amount to the Petitioner, as this Court in the above paragraphs has observed that petitioner contributed to the extent of 10% for the occurrence of accident. Accordingly, I answer Issue No.2 "Partly in the Affirmative".
34. ISSUE No. 3 : In view of my findings on Issue No.1 and 2, I proceed to pass the following:
ORDER The Claim Petition filed by the Petitioner against the Respondent No.1 and 2 U/Sec. 166 of M.V. Act is hereby allowed in part with costs.
The Petitioner is entitled for 90% of Compensation of Rs.2,70,640/ along with interest at the rate of 6% per annum from the date of the Petition till the date of deposit of Award amount.SCCH-14 21 MVC.1367/2022
The Respondent No.1 and 2 are jointly and severally liable to pay the compensation amount to the Petitioner.
The Respondent No.2 being the insurer of the offending vehicle, is directed to deposit the Award amount and interest within 60 days from the date of the Award.
After the deposit of the Award amount and interest being made by the Respondent No.2, entire award amount is ordered to be paid to the Petitioner by way of E payment after proper identification.
The Advocate fee is fixed at Rs.1,000/. Draw Award accordingly.
(Dictated to the stenographer directly on the computer, typed and computerized by her, corrected, signed and then pronounced by me in the open Court on this 7th day of June 2024) [[ (YATHISHA.R) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.SCCH-14 22 MVC.1367/2022
Annexure Witnesses examined on behalf of the Petitioners :
P.W.1 : Venugopal P.W.2 : Shashikala P.W.3 : Dr.S.A.Somashekara Documents marked as Exhibits for the Petitioners :
Ex.P.1 : Certified Copy of FIR
Ex.P.2 : Certified Copy of complaint
Ex.P.3 Certified Copy of Spot
panchanama
Ex.P.4 : Certified Copy of IMV report
Ex.P.5 : Certified Copy of Wound
certificate
Ex.P.6 : Certified Copy of charge sheet
Ex.P.7 & 8 : Certified Copy of Order sheet in
CC.No.11560/2022 and
complaint
Ex. P.9 : Certified Copy of Police notice and
reply notice
Ex. P.10 : Discharge summary
Ex. P.11 : 30 medical bills
Ex. P.12 : 9 medical prescriptions
Ex. P.13 : Notarised copy of Aadhar card
Ex. P.14 : Authorisation letter
Ex. P.15 : Case sheet
Ex. P.16 : Police intimation
SCCH-14 23 MVC.1367/2022
Ex. P.17 : MLC register extract
Ex. P.18 : Out patient record with
examination report
Ex. P.19 : Xray
Witness examined on behalf of the Respondents : NIL Documents marked as Exhibits for the Respondents : NIL (YATHISHA.R) MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU.
Digitally signed by YATHISHA R YATHISHA Date:
R 2024.06.13
17:19:45
+0530