Bangalore District Court
Versus vs Petitioner/S By Sri.B.K.K on 20 January, 2022
1 M.V.C.No.5211/2018
SCCH - 15
KABC020218772018
IN THE COURT OF THE IX C/c XIII ASCJ. SMALL
CAUSES AND ADDL. MACT, BENGALURU, (SCCH-15)
BEFORE: SRI.UMESH S. ATNURE,
B.Com.LL.B.(Spl)
IX Addl. Small Causes Judge,
Court of Small Causes,
Member, MACT7, Bengaluru.
M.V.C. No.5211/2018
DATED THIS 20th DAY OF JANUARY - 2022
Sri. M.R. Krishnamurthy,
S/o M.C. Ramachandraiah,
Aged about 61 years,
Residing at No.501/A, Purohit Street,
Channapatna Taluk, Ramanagara District.
Petitioner/s
VERSUS
1) The Manager,
New India Assurance Co. Ltd.,
R.O. No.22B, Unity Building Annex,
Mission Road, Lalbagh Road,
Bengaluru - 560 027.
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(Insurer of Car bearing registration
No.KA09MA1629)
2) Mr. Gurulingaiah.C.,
S/o Chenne gowda,
No.58, Fire Station Quarters,
Saraswathipuram, Mysore.
(R.C. Owner of offending Car bearing registration
No.KA09MA1629)
Respondent/s
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Petitioner/s by Sri.B.K.K., Advocate
Respondent No.1 by Sri. K.M.V., Advocate
Respondent No.2 is placed exparte
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Date of filing of petition : 12.09.2018
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:JUDGMENT:
1. The petitioner has filed this petitioner under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.15,00,000/ for the injuries sustained by him in Road Traffic Accident occurred on 14.08.2018. 3 M.V.C.No.5211/2018
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2. It is the case of the petitioner that on 14.08.2018 at about 1015 p.m., petitioner and other inmates were traveling in a Car bearing registration No.KA09MA1629 on Mysurue - Bengaluru Road near Induvalu Village while returning back to Bangalore the driver of the said Car driven the same at high speed in rash and negligent manner and lost control over the said Car and hit against the road side tree and due to impact the Car was sustained damaged and petitioner and others were also sustained injuries. Immediately he was shifted to JSS Hospital and then he was shifted to Hosmat Hospital for further treatment wherein he was admitted as an inpatient for 4 days and undergone surgery. Prior to the accident he was hale and healthy and aged about 61 years and doing Plastic items business and earning Rs.50,000/ p.m. Due to the injuries sustained in the accident, he is permanently disabled and lost his income. This accident is occurred due to rash and 4 M.V.C.No.5211/2018 SCCH - 15 negligent act of driver of the Car bearing registration No.KA09MA1629. The respondent No.1 being insurer and the respondent No.2 being owner of the said Car are jointly and severally liable to pay compensation to him. Hence petitioner prayed to allow the petition.
3. In response to the notice issued by this Tribunal, the respondent No.1 appeared through their counsel and filed their written statement and the respondent No.2 is placed exparte.
4. In the written statement, the the respondent No.1 denied the entire contention of the petitioner. Further the respondent No.1 contended that the policy issued to the Car bearing registration No.KA09MA1629 was inforce as on the date of the accident but their liability is subjected to terms and conditions of the policy. Further they contended that the insured Car was not having fitness certificate and 5 M.V.C.No.5211/2018 SCCH - 15 the driver of was Car was not holding valid and effective driving licence and the owner of the said Car was knowingly same allowed his vehicle to drive by a person who is was not having driving licence. Hence the owner of the said Car was violated the terms and conditions of the policy, hence they are not liable to pay any compensation to the petitioner. Hence, on all these grounds, they prayed to dismiss the petition.
5. On the basis of above pleadings following Issues were framed.
:: I S S U E S ::
(1) Whether petitioner proves that he has sustained injuries due to RTA alleged to have been occurred on 14.08.2018 at about 1015 p.m., on Mysuru - Bengaluru road, near Induvalu Village, Mandya due to the rash and negligent driver of Car bearing registration No.KA09MA1629?6 M.V.C.No.5211/2018
SCCH - 15 (2) Whether the petitioner is entitled for compensation? If so, what amount and from whom?
(3) What order or award?
6. In order to prove the case of petitioner, petitioner got examined himself as PW1 and got marked Ex.P1 to P13, and also got examined Dr. Krishan Prasad as PW.2, through PW.2 Ex.P.14 to Ex.P.16 are marked and closed their side. The Medical record officer of Hosmat Hospital got examined as RW.1 and got marked Ex.R.1 and Ex.R.2 and also MRT of JSS Hospital got examined as RW.2 and got marked Ex.R.3 amd Ex.R.4 and closed their side.
7. Heard the arguments of both counsels.
8. My findings to the above referred 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.......
7 M.V.C.No.5211/2018
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:REASONS:
9. Issue No.1: In support of the case of the petitioner, the petitioner got examined himself as PW.1 and in his examination in chief he reiterate the petition averments and got marked FIR with Complaint/Ex.P1, Crime Details form and Spot Mahazar/Ex.P.2, IMV Report/Ex.P3, Wound Certificate/Ex.P4, Charge Sheet/Ex.P5 and Discharge Summary/Ex.P7. By perusing these documents it is clear that due to the negligence of the driver of the Car bearing registration No.KA09MA1629 this accident was took place. Further in the crossexamination of PW.1 nothing contrary is brought on record to disbelieve the case of the petitioner. Hence by perusing the oral and documentary evidence adduced by the petitioner I am of the considered view that this accident is occurred due to the negligence of the driver of the Car.
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10. The respondent No.1 got examined the medical record officer of Hosmat hospital as RW.1. The RW.1 has produced the authorization letter as per Ex.R1 and MLC register extract as per Ex.R2. Further the respondent No.1 got examined the medical record officer of JSS Hospital Mysore as RW.2. The RW.2 got marked the authorization letter as per Ex.P3 and case sheet as per Ex.R4. By perusing the said documents it clearly goes to show that immediately after the accident the petitioner was taken to JSS Hospital and there after he was referred to Hosmat Hospital and in Hosmat hospital MLC was registered and by perusing the MLC register extract marked as per Ex.R2 it clearly goes to show that the petitioner was sustained injuries in the RTA occurred on 14082018 while he was proceeding in car. Further by perusing the Wound Certificate marked as per Ex.P.4 it clearly goes to shows that in this accident the petitioner has sustained injuries as 9 M.V.C.No.5211/2018 SCCH - 15 stated in the petition. Hence, I answered the Issue No.1 in the affirmative.
11. Issue No.2: In so far as the age of petitioner is concerned, the petitioner has contended that as on the date of accident, he was aged 61 years and he was doing Plastic Items business and thereby earning Rs.50,000/ p.m. As far as the age of the petitioner is concerned the petitioner relied on the Wound Certificate as per Ex.P.4 wherein the age of the petitioner is shown as 62 years. Hence the age of petitioner is considered as 62 years as on the date of accident.
12. The petitioner contended that he was doing Plastic items business and earning Rs.50,000/ p.m. In support of this contention the petitioner has produced Income tax returns for the year 20172018, 20182019 and 20192020 as per Ex.P.8. By perusing these documents it clearly goes to shows that the petitioner is an income tax assessee. 10 M.V.C.No.5211/2018
SCCH - 15 Further in the crossexamination also the petitioner clearly deposed that he is doing plastic items business and earning Rs.50,000/ p.m. By perusing Ex.P.8 and crossexamination of PW.1 it goes to shows that the petitioner is doing plastic items business out of the income derived from his business he has paid income tax. The accident is occurred on 14.08.2018, hence the income of the period 20182019 is the relevant in this case. As per the Income Tax returns acknowledgement form for the year 201920 it goes to shows that the petitioner is having income of Rs.3,24,575/ during the year 201819 and further by perusing the Income Tax returns acknowledgement it goes to shows that the petitioner has paid income tax of Rs.1,050/ if the income tax is deducted from the annual income of the petitioner the annual income of the Petitioner is comes to Rs.3,23,525/ and the monthly income comes to Rs.26,960/. 11 M.V.C.No.5211/2018
SCCH - 15 Hence the income of the petitioner is considered as Rs.26,960/ p.m.
13. The petitioner contended that in this accident he has sustained left hip intertrochanteric fracture, fracture 4 th and 5th metacarpal left hand and right infraorbital rim fracture and for the injuries sustained in the accident he was taken treatment in the hospital and undergone surgery and due to which he is not able to do any work and he is permanently disabled. In support of the same, the petitioner got examined Dr. Krishan Prasad as PW2. By perusing the evidence of PW.2 it clearly goes to shows that PW.2 has not treated the petitioner. Further the PW.2 has assessed the whole body disability at 18% and also deposed that the implants inserted at the place of fracture are not yet removed and for removal of the implants which requires another cost of Rs.80,000/ and he has produced the two Outpatient files, one inpatient file and two Xray with 12 M.V.C.No.5211/2018 SCCH - 15 reports. In his crossexamination he deposed that he has not treated the petitioner and Dr.Thomas Chandi has given treatment to the petitioner along with Dr.Karan. He denied that in general after 60 years the petitioner will suffer from arthritis and weakness in the limbs. Further he admitted that there will be difference in the strength of upper limb and lower limb of 30 years old person and 60 years old persons. Further he deposed that the petitioner has taken treatment to the left hip fracture, facial fracture and wiring for 4th and 5th metacarpal bone and except fracture to left hip, facial fracture and 4th and 5th metacarpal bone the petitioner has not sustained any other fractures. Further he deposed that the petitioner has sustained fracture of neck of femur and plate and screws are inserted to the fracture of neck of femur and the said implants are still in situ and the said fracture is united and 4th and 5th metacarpal are united. He denied that only to 13 M.V.C.No.5211/2018 SCCH - 15 help the petitioner he has assessed disability on the higher side. He denied that he is falsely deposing that the petitioner requires Rs.80,000/ for further treatment for removal of implants. Further the Doctor deposed that the petitioner can lift about 5 - 7 kgs weight and the petitioner can do any desk work. From the evidence of PW.2 it is clear that due to the injuries sustained in the accident the petitioner is having disability and the doctor has assessed the disability to the whole body at 18%. The doctor has clearly stated that the petitioner can do his work and he can lift weight up to 5 - 7 kgs. As the occupation of the petitioner is considered as businessman and he was doing business of plastic items and he can do the business by sitting in his shop and he can lift weight up to 5 - 7 kg. Hence it appears that the disability given by the doctor on higher side. By perusing the medical records and evidence of PW.2 and also by relying on the authority reported in, 14 M.V.C.No.5211/2018 SCCH - 15 (2011)1 SCC 343 in between Rajkumar V/s Ajay Kumar, the functional disability of the petitioner is considered at 8%.
14. The age of the petitioner is considered as 62 years and income of the petitioner is considered at Rs.26,960/ p.m. and functional disability of the petitioner is considered at 8%. As per Sarala Varma Case multiplier 7 is applicable to the present case on hand, hence loss of earning comes to Rs.1,81,171/ (Rs.26,960/ X 12 X 7 X 8/100). The amount of Rs.1,81,171/ is awarded to injured/petitioner under the head loss of future income for the permanent physical disability suffered by his in the accident. Further due to the injuries sustained in the accident the petitioner was admitted in the hospital and he has sustained left hip intertrochanteric fracture, fracture 4th and 5th metacarpal left hand and right infraorbital rim fracture and as on the date of the accident the petitioner was aged about 62 years 15 M.V.C.No.5211/2018 SCCH - 15 it shows that due to the injuries sustained in the accident the petitioner has suffered some pain. Hence an amount of Rs.50,000/ is awarded to the petitioner under the head pain and sufferings. Due to the accidental injuries the petitioner might have taken rest for a period of one month and during that period he could not be able to attend his day to day work independently and he has taken assistance an attendant and he has also taken diet food during the period of treatment. Hence an amount of Rs.40,000/ is awarded towards loss of income during the period of treatment and rest, food, nourishment and attendant charges. The petitioner has produced the Hospital bills and medicine bills as per Ex.P.9 an amount of Rs.2,72,107/. Hence the petitioner is entitled for hospital and medicine bills for an amount of Rs.2,72,107/. Further due to the injuries sustained in the accident the petitioner has lost comfort in his life, as such an amount of Rs.20,000/ is 16 M.V.C.No.5211/2018 SCCH - 15 awarded towards loss of amenities. Further the implants are inserted to the fracture place are not yet removed. The doctor has deposed that the petitioner require Rs.80,000/ for removal of implants. But the doctor has not given any estimation or break up. Hence an amount of Rs.15,000/ is awarded under the head of future medical treatment. Hence in all the petitioner is entitled to compensation under the following heads;
Towards loss of future income Rs. 1,81,171.00 Towards pain and sufferings Rs. 50,000.00 Loss of income during the period Rs. 40,000.00 of treatment, rest, food, nourishment and attendant charges Towards loss of amenities Rs. 20,000.00 Towards Hospital and medicine Rs. 2,72,107.00 charges Towards future medical treatment Rs. 15,000.00 Total Rs. 5,78,278.00 Hence the petitioner is entitled for just and reasonable compensation amount of Rs.5,78,278/. 17 M.V.C.No.5211/2018
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15. While answering the issue No.1 this tribunal comes to the conclusion that, accident occurred due to the negligence of the driver of Car bearing registration No.KA09MA1629. Further it is clear that the respondent No.1 is the insurer and the respondent No.2 is the owner of the above said car. The respondent No.1 admitted that as on the date of the accident the policy issued to the said Car was in force, but their liability is subjected to terms and conditions of the policy. The respondent No.1 has not put forth any material evidence before the court to show that there is an violation of terms and conditions of the policy. Hence I am of the considered view that the respondent No.1 and 2 are jointly and severally liable to pay compensation to the petitioner with interest at the rate of 6% p.a., from the date of petition till realization of the entire amount. Hence I answered the issue No.2 in partly affirmative.
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16. Issue No.3: For the above stated reasons I proceed to pass the following;
:ORDER:
Claim petition filed by the petitioner U/Sec 166 of M.V. Act is partly allowed with costs of Rs.1,000/.
Petitioner is awarded just and reasonable compensation of Rs.5,78,278/ (Rupees Five Lakhs Seventy Eight Thousand Two Hundred and Seventy Eight Only) with interest at the rate of 6% p.a. from the date of petition to till the date of depositing of the compensation amount in the Court.
Respondent No. 1 and 2 are jointly and severally liable to pay compensation amount to the petitioner. The respondent No.1 being insurer of Car bearing registration No.KA09MA1629 is directed to deposit the awarded compensation amount to the petitioner in the Court within 02 month from the date of this judgment.
Draw award accordingly.
:APPORTIONMENT:
On deposit of compensation amount the petitioner shall deposit 25% of the 19 M.V.C.No.5211/2018 SCCH - 15 compensation amount in any of the Nationalized or scheduled Bank as F.D. for a period of 3 years.
After expiry of period of fixed deposit the Bank Authorities are at liberty to release the amount shown in the F.D. to the concerned depositor in accordance with rules and regulations of the bank after proper identification of the depositor.
Remaining 75% amount is to be paid to Injured/Petitioner under Epayment and after verifying the stay order from the Hon'ble Appellate Court.
(Dictated to the Stenographer, typed by him, corrected and then, pronounced by me in the open Court on this, the 20.01.2022).
(Umesh S.Atnure) IX C/c XIII ASCJ & ACMM, Court of Small causes, Member MACT, Bengaluru.
: ANNEXURE :
List Of Witnesses Examined For Petitioner/s.
PW1 : M.R. Krishnamurthy
PW2 : Dr. Krishan Prasad
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List of exhibited documents marked for Petitioner/s.
Ex.P1 : FIR with complaint
Ex.P2 : Crime Details form and Spot Mahazar
Ex.P3 : IMV Report
Ex.P4 : Wound Certificate
Ex.P5 : Charge Sheet
Ex.P6 : Discharge against medical advise
Ex.P7 : Discharge Summary
Ex.P8 : Income tax returns for the year 20172018, 2018
2019 and 20192020
Ex.P9 : Medical Bills
Ex.P10 : Advance Bills
Ex.P11 : Medical Prescriptions
Ex.P12 : Medical Reports
Ex.P13 : Xrays
Ex.P14 : OPD fils
Ex.P15 : Inpatient case file
Ex.P16 : Xray Films
List of witnesses examined for the Respondent/s:
RW.1 : S. Shanthamma
RW.2 : Ravi Shankar. B.V.
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List of exhibited documents marked for the Respondent/s:
Ex.R.1 : Authorization letter
Ex.R.2 : MLC Register
Ex.R.3 : Authorization letter
Ex.R.4 : Case Sheet
(Umesh S.Atnure)
IX C/c XIII ASCJ & ACMM,
Court of Small causes,
Member MACT, Bengaluru.