Bangalore District Court
Sri. Kempanna.H.R vs Sri. Thimmegowda on 7 February, 2020
BEFORE THE COURT OF ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BENGALURU. (SCCH-13)
DATED THIS THE 7th DAY OF FEBRUARY 2020.
PRESENT:
SMT.NIVEDITHA.T.M. B.A.L. LL.B.
II Addl.Judge & ACMM
Court of Small Causes, Bengaluru.
M.V.C.2158 OF 2017
PETITIONER: Sri. Kempanna.H.R, 65 years,
S/o Late Rangayya,
R/a Huchahanumegowdana Palya,
Kalarikaval Road, Near Water Tank,
Kasaba Hobli, Magadi Taluk,
Ramanagara District.
(By Sri. C.M.Gowda, Advocate.)
vs.
RESPONDENTS: 1. Sri. Thimmegowda.,
S/o. Late Doddaiah,
T. Hosahalli, Tarikere Post,
Kasaba Hobli, Kunigal Taluk,
Tumkur District.
(R.C.Owner of bolero Goods
Bearing Reg. No.KA-06-C-5905)
(By Sri. Thimmegowda.H.G,
Advocate.)
2. United India Insurance Co., Ltd.,
Regional Office,
5th Floor, Krushi Bhavan,
Nrupathunga Road,
Hudson Circle,
Bengaluru-560027.
SCCH.13 2 MVC.No.2158/2017
(Policy No.0714833116P113371203
Valid from 12.01.2017 to
11.01.2018)
(By Sr. V.Raghunathan.B, Advocate.)
-o0o-
JUDGMENT
The petitioner has filed the present petition under Sec.166 of M.V. Act against the respondents claiming compensation of Rs.10,00,000/-.
2. The brief facts of the case is as under:
On 07.3.2017 at about 8.30 p.m., the petitioner got down from the bus at Huchegowdanapalya situated on Magadi- Kunigal Road, Kasaba Hobli, Magadi Taluk and after carefully observing the vehicle movements was standing on the extreme left side of the said road at that time suddenly the driver of Bolero Goods Vehicle bearing Reg. No. KA-06-C-5905 came from Magadi towards Kunigal side in a rash and negligent manner and dashed against the petitioner. As a result, the petitioner fell down and sustained grievous injuries all over his body. Immediately after the accident, petitioner was shifted to Magadi Government Hospital, wherein he was given first-aid treatment and thereafter shifted to Sri. Lakshmi Multi Speciality Hospital, Sunkadakatte, Magadi Main Road, Bengaluru, took treatment and later discharged with follow up advice. The petitioner is still under treatment as an outpatient. He has spent huge amount towards treatment SCCH.13 3 MVC.No.2158/2017 and incidental expenses. Due to the accidental injuries, petitioner has suffered mental shock and agony, pain and sufferings, loss of amenities to life and permanent disability. It is stated that, before the accident, he was hale and healthy and he was earning his livelihood as Mason earning a sum of Rs.20,000/- per month. On account of the said accidental injuries, petitioner is not in a position to lead his normal life and to do his work as he was doing prior to the accident and he is under follow-up treatment as per the advice of the doctors, hence he has prayed for allowing the petition.
3. In response to service of notice, respondents appeared through counsel and filed objection statement wherein contending that, the petition filed by the petitioner is false, frivolous and vexatious and it is not maintainable either in law or on facts. The respondents have admitted the policy issued in respect of the vehicle in question which was in force at the time of accident. However, 2 nd respondent has contended that its liability if any is subject to terms and conditions of the policy. Respondents have denied all the averments of the claim petition and called upon the petitioner to strict proof of the same. The respondents have denied the manner of accident, the injuries sustained by the petitioner in the alleged accident, treatment undergone and expenses incurred towards treatment and further denied the age and income of the petitioner. They have contended that the amount claimed SCCH.13 4 MVC.No.2158/2017 by the petitioner is highly excessive and exorbitant. Therefore the respondents prays to dismiss the petition.
4. On the basis of the pleadings of the parties, this Tribunal has framed the following issues:
1. Whether the petitioner proves that he had sustained grievous injury in RTA on 07-03-2017 at 8-30 p.m. at Huchegowdanapalya on Magadi-
Kunigal Road, Kasaba Hobli, Magadi Taluk and alleged accident is due to rash and negligence of driver of Bolero Goods Vehicle bearing No.KA-06-C- 5905?
2. Whether the petitioner proves that he is entitled for the compensation as claimed? If so, to what extent and from whom?
3. What order or award?
5. In order to prove the case of the petitioner, petitioner got himself examined as PW.1 and doctor was examined as PW.2 and got marked documents at Ex.P.1 to Ex.P.12. Respondents have not led any evidence.
6. Heard arguments.
7. After assessing the oral and documentary evidence and after hearing the arguments, my findings to the above issues are as under:
Issue No.1: In the affirmative
Issue No.2: Partly in the affirmative,
Issue No.3: As per final order, for the following:
SCCH.13 5 MVC.No.2158/2017
REASONS
8. Issue No.1: It is the case of the petitioner that on 07.3.2017 at about 8.30 p.m., he got down from the bus at Huchegowdanapalya situated on Magadi- Kunigal Road, Kasaba Hobli, Magadi Taluk and after carefully observing the vehicle movements was walking on the extreme left side of the said road at that time suddenly the driver of Bolero Goods Vehicle bearing Reg. No. KA-06-C- 5905 came from Magadi towards Kunigal side in a rash and negligent manner and dashed against the petitioner. As a result, the petitioner fell down and sustained grievous injuries all over his body. To substantiate his case, the petitioner got himself examined as PW.1 and he has filed affidavit in lieu of his examination in chief and reiterated the averments of the petition. He has produced the documents such as true copies of FIR, complaint chargesheet, spot mahazar, IMV report & Wound Certificate, marked at Ex.P.1 to P.6. Petitioner has been cross-examined by the respondent. In the cross- examination, he denied the suggestion that the accident occurred due to his negligence. He denies that while crossing the road it was dark night and the accident has occurred. He denied the suggestion that after the accident persons by name Shivaraju and Ramesh have admitted him to the hospital and he denies that he has not taken the treatment as an inpatient.
SCCH.13 6 MVC.No.2158/20179. On perusal of the oral evidence of PW.1 along with police documents i.e., FIR and also charge sheet, it reveals, that the accident occurred due to rash and negligent driving of the car and Police have filed chargesheet against the driver of said car after thorough investigation. Therefore, the evidence of PW.1 and available documents are sufficient to say that this accident had occurred purely on the rash & negligent driving by the driver of the offending vehicle. Hence, I have answered issue No.1 accordingly in the affirmative.
10. Issue No.2 : The petitioner has stated that he has sustained injuries all over his body. In support of the same, he has produced wound certificate which is marked at Ex.P.7. On perusal of the same it reveals that petitioner has sustained haemoperitoneum with pelvic fracture with mesenteric injury, multi direction instability left knee with ACL + PCL + MCL injury and other grievous injuries all over the body. He was treated as inpatient in Sri. Lakshmi Multi-Speciality hospital from 07.03.2017 till 20.3.2017. The petitioner has stated that due to injuries sustained in the accident, he is completely bed ridden, getting head ache and giddiness often, cannot lift or carry any weight, cannot walk, stand, sit squat on the floor and undergoing deep mental shock, pain and suffering since the injuries caused are permanent in nature.
11. The petitioner has examined Dr. Arjun.S. Prakash, Orthopaedic surgeon at Ashraya Hospital, Magadi Main Road, Bengaluru as PW.2 who has produced X-rays SCCH.13 7 MVC.No.2158/2017 marked at Ex.P.12. He has filed affidavit in lieu of his examination-in-chief and stated that he has sustained Hemoperitoneum with pelvic fracture and mesenteric injury, ACL PCL AMD MCL Injury left Knee. He was shifted to Sri. Sri. Lakshmi Hospital and taken treatment as an inpatient. He was treated in the form of Laparoscopic lavage with repair of mesenteric injury for injury No.1 and arthroscopy ACL Reconstructiom with MCL Repair with postero-lateral repair No.2. He was discharged on 20.03.2017. On examination of petitioner on 10.02.2019 for purpose of disability assessment, he noticed complete union of all fractures, Post ACL and PCL reconstruction status of left knee, restriction of movement of left knee, Anterior drawers test mildly positive, posterior drawers test mildly positive, valgus stress test positive. By considering the range of movement, flexion, extension, muscle strength of left knee, he has assessed the disability of 49% of right lower limb and 16% to the whole body. He has not been cross-examined by the respondents. By considering the age of the petitioner, nature of injuries sustained, treatment undergone by him and the disability suffered by him, it is just and reasonable to consider the whole body functional disability suffered by the petitioner at 16% which is directly affecting on his future earning capacity and he is entitle for loss of future earnings.
12. The petitioner has stated that at the time of accident, he was working as Mason and earning Rs.20,000/-. In support of his evidence, the petitioner has SCCH.13 8 MVC.No.2158/2017 produced the Notarized copy of DL marked at Ex.P.7. It reveals the date of birth of the petitioner as 01.01.1950 and the accident occurred on 07.03.2017. Hence, as on the date of accident, petitioner was 67 years old. However, the petitioner has not produced any material before the court to prove his income. In the absence of the same, by considering the age and avocation of the petitioner and also the date of accident, the income of the petitioner is considered notionally at Rs.8,000/-p.m. Appropriate multiplier applicable for the age group 66 to 70 years is '5' as per Sarla verma case. Then the loss of future earnings works out to, Rs.8000 x 12 x 5 x 16% = 76,800/- and I am going to award this amount to the petitioner under the head loss of future earnings due to disability. Considering the nature of injuries sustained and period of treatment including follow-up treatment, it is just and proper to award Rs.50,000/- under the head of pain and sufferings.
13. The petitioner has produced 5 medical bill for Rs.3,32,224/- and 43 medical bills for Rs.1,22,032/- marked at Ex.P.8 & Ex.P11 and 39 prescriptions marked at Ex.P.9, Ex.P10. However, considering the age of the petitioner, nature of injuries sustained and treatment undergone by the petitioner along with the prescriptions, other bills appears to be genuine. Therefore, it is just and proper to award a sum of Rs.4,54,256/- to the petitioner under the head medical expenses. In addition, it is just and proper to award a sum of Rs.50,000/- under the head conveyance, SCCH.13 9 MVC.No.2158/2017 nourishment, nutritious food, and Rs.30,000/- for loss of amenities.
14. In all I am going to award compensation under the following heads:
1 Pain and sufferings Rs.
50,000/-
2 Loss of future income Rs.
due to disability 76,800/-
3 Medical expenses Rs.
4,54,256/-
4 Conveyance, Rs.
nourishment & 50,000/-
nutritious food
5 Loss of amenities Rs.
30,000/-
Total Rs. 6,61,056/-
15. The available records are sufficient to say that, this accident occurred due to rash and negligent driving by the driver of offending Bolero Goods vehicle bearing Regn.No.KA 06 C 5905 belonging to respondent No.1 insured with respondent No.2. Respondent No.2 has admitted the issuance of policy in favour of respondent No.1 and its validity as on the date of accident. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioner. In view of subsistence of insurance policy, respondent No.2-insurance company shall liable to deposit compensation amount in the court.
With these observations, I have answered issue No.2 accordingly.
SCCH.13 10 MVC.No.2158/201716. Issue No.3:- In view of the discussion made supra, I proceed to pass the following :
ORDER The claim petition under Sec.166 of Motor Vehicles Act filed by the petitioner against respondent No.1 & 2 are hereby allowed in part with cost.
The respondent No.1 & 2 are jointly and severally liable to pay compensation of Rs. 6,61,056/- to the petitioner with interest at the rate of 6% p.a. from the date of petition till the deposit of the amount in the Tribunal.
The respondent No.2 being the insurer of the offending vehicle shall deposit the compensation amount in the Tribunal within 90 days from the date of this award.
After deposit of award amount, 40% of the amount shall be invested in FD in the name of petitioner in any Nationalized or Scheduled bank of his choice for a period of three years and balance amount shall be released to the petitioner through account payee cheque.
The advocate's fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer directly on computer, print out copy corrected, signed and pronounced in open court on this the 7th day of February 2020.) SCCH.13 11 MVC.No.2158/2017 (NIVEDITHA.T.M.) II Addl. Judge & ACMM, Court of Small Causes, Bengaluru ANNEXURE List of witnesses examined for petitioner:
PW.1 : Kempanna
PW.2 : Dr. Arjun.S Prakash
List of documents marked for petitioner:
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Charge sheet
Ex.P.4 : True copy of Spot Mahazar
Ex.P.5 : True copy of IMV report
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of
Ex.P.8 : Notarized copy of Aadhar card
Ex.P.9 : Medical bills (5 in Nos.) total amount of
Rs.3,32,224/-
Ex.P.10 : Prescriptions (37 in Nos.)
Ex.P.11 : Medical bills (43 in Nos.) total amount of
Rs.1,22,032/-
Ex.P.12 : X-ray
List of witnesses & documents for Respondent:
Nil (NIVEDITHA.T.M.) II Addl. Judge & ACMM, Court of Small Causes, Bengaluru SCCH.13 12 MVC.No.2158/2017 AWARD SCCH.NO:13 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BENGALURU CITY M.V.C.2158 OF 2017 PETITIONER: Sri. Kempanna.H.R, 65 years, S/o Late Rangayya, R/a Huchahanumegowdana Palya, Kalarikaval Road, Near Water Tank, Kasaba Hobli, Magadi Taluk, Ramanagara District. (By Sri. C.M.Gowda, Advocate.) vs. RESPONDENTS: 1. Sri. Thimmegowda., S/o. Late Doddaiah, T. Hosahalli, Tarikere Post, Kasaba Hobli, Kunigal Taluk, Tumkur District.
(R.C.Owner of bolero Goods Bearing Reg. No.KA-06-C-5905) (By Sri. Thimmegowda.H.G, Advocate.)
2. United India Insurance Co., Ltd., Regional Office, 5th Floor, Krushi Bhavan, Nrupathunga Road, Hudson Circle, Bengaluru-560027.
(Policy No.0714833116P113371203 Valid from 12.01.2017 to 11.01.2018) (By Sr. V.Raghunathan.B, Advocate.)
-o0o-
SCCH.13 13 MVC.No.2158/2017WHEREAS, this petition filed on __________ by the petitioner/s above named U/sec.110-A/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 Smt.Niveditha.T.M., II Addl. Judge, Member, Bengaluru, in the presence of Sri/Smt.________________ Advocate for petitioner/s and of Sri/Smt.________________ Advocate for respondent.
The claim petition is decreed as under :-
ORDER The claim petition under Sec.166 of Motor Vehicles Act filed by the petitioner against respondent No.1 & 2 are hereby allowed in part with cost.SCCH.13 14 MVC.No.2158/2017
The respondent No.1 & 2 are jointly and severally liable to pay compensation of Rs. 6,61,056/- to the petitioner with interest at the rate of 6% p.a. from the date of petition till the deposit of the amount in the Tribunal.
The respondent No.2 being the insurer of the offending vehicle shall deposit the compensation amount in the Tribunal within 90 days from the date of this award.
After deposit of award amount, 40% of the amount shall be invested in FD in the name of petitioner in any Nationalized or Scheduled bank of his choice for a period of three years and balance amount shall be released to the petitioner through account payee cheque.
The advocate's fee is fixed at Rs.1,000/-. Given under my hand and seal of the Court this_ the .......... day of ................2020) MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BENGALURU.
COST OF PETITION
By the
Petitioner/s Respondents
No.1 No.2
Court fee paid on Petition 10-00
Court fee paid on Powers
Court fee paid on I.A.
SCCH.13 15 MVC.No.2158/2017
Process
Pleaders Fee
Total Rs.
Decree Drafted Scrutinized by
Decree Clerk SHERISTEDAR
MEMBER, M.A.C.T,
METROPOLITAN AREA,
BENGALURU.
SCCH.13 16 MVC.No.2158/2017
Order pronounced in open court
vide separate judgment
ORDER
The claim petition under Sec.166 of Motor Vehicles Act filed by the petitioner against respondent No.1 & 2 are hereby allowed in part with cost.
The respondent No.1 & 2 are jointly and severally liable to pay compensation of Rs. 6,61,056/- to the petitioner with interest at the rate of 6% p.a. from the date of petition till the deposit of the amount in the Tribunal.
The respondent No.2 being the insurer of the offending vehicle shall deposit the compensation amount in the Tribunal within 90 days from the date of this award.
After deposit of award amount, 40% of the amount shall be invested in FD in the name of petitioner in any Nationalized or Scheduled bank of his choice for a period of three years and balance amount shall be released to the petitioner through account payee cheque.
The advocate's fee is fixed at Rs.1,000/-. Draw award accordingly.
(NIVEDITHA.T.M.) II Addl. Judge & ACMM, Court of Small Causes, Bengaluru.