Bangalore District Court
Roshan.V vs The Managing Director on 19 March, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 19TH DAY OF MARCH, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.396/2014
Petitioner/s Roshan.V.
S/o Late Vittal Nayak,
Aged about 41 years,
No.112, 2nd Cross,
4th Main, HAL 3rd Stage,
Bengaluru - 560 075.
(By Pleader - Smt.Anitha
R.Naik.)
V/s
Respondent/s 1.The Managing Director,
K.S.R.T.C.
Kengal Hanumanthaiah Road,
Shanthinagar,
Bengaluru - 560 027.
(KSRTC A/c Sleeper bus
bearing registration
No.KA-19-F-3055)
(By Pleader -
Sri.Mahadevaiah.)
2.New India Assurance
Company Ltd.,
C.D.U.11, Unity Building,
Tower Bock, 4th floor,
J.C.Road,
(SCCH-15) 2 MVC.396/2014
Bengaluru - 560 002.
(By Pleader -
Sri.B.Anjaneyalu.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 18.05.2013 at about 10:20 p.m. he has boarded the KSRTC bus bearing registration No.KA-19 F-3055 as a passenger at Mangaluru towards Bengaluru. On the next day early morning i.e. on 19.05.2013 at about 4:30 a.m. when the bus reached near Hanumapura village, NH-75, Bypass road, Kunigal taluk, the bus driver driven it with high speed in rash and negligent manner. Lost control over the bus and fell on the ditch in between main road and service road.
(SCCH-15) 3 MVC.396/2014
b) Because of which, himself including other passengers have suffered severe injuries. Accident took place solely due to negligent driving of KSRTC bus driver. Therefore, respondent being the RC owner and internal insurer is liable to pay the compensation. Therefore, prayed to allow the petition as sought for.
4. In response to due service of notices, respondent appeared through its counsel and filed its statement of objections denying the petition averments. However, it has also contended that a vehicle overtook the bus and to avoid hitting of the said vehicle, the bus driver took the bus towards left side because of rain and slippery road, the bus turtled and fell into ditch because of which accident took place and there is no negligence on the part of bus driver.
b) It has also contended that at the time of accident it was duly insured with New India Assurance. Therefore, petition is bad for non-joinder of necessary parties. Hence, prayed to dismiss the petition against it with costs.
(SCCH-15) 4 MVC.396/2014
5. On going through the statement of objections of the 1st respondent to the main petition, petitioner got impleaded insurer of KSRTC bus i.e. New India Assurance Company as 2nd respondent who in turn appeared through its counsel and filed statement of objections denying the petition averments.
b) However, it has admitted the policy and its force on the date of accident and contended that its liability is subject to the terms and conditions of the policy such as driving license and vehicular documents. It has called the petitioner to put strict proof of his case and prayed to dismiss the petition against it with costs.
6. On the above said pleadings of the parties, this Tribunal has framed the following issues.
Whether petitioner proves that he has sustained injury due to RTA alleged to have been occurred on 19.05.2013 at about 4:30 a.m., near Hanumapura village, NH-75, Bypass road, Kasaba Hobli, Kunigal, Tumkur due to the rash and negligent driving of the KSRTC bus bearing No.KA-19 F-3055?
Whether petitioner is entitled for compensation? If so, what amount?
(SCCH-15) 5 MVC.396/2014
3. What order or award?
7. To prove the above said issues and to substantiate their respective contentions, petitioner has entered into witness box as PW-1. He has got examined the doctor who has assessed the disability as PW-2. Got exhibited 14 documents and closed his side. Both the respondents submitted that they have no oral evidence to lead. Heard the arguments of both the sides on merits and perused the record.
8. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation amount of Rs.1,00,000/- together with interest at 9% p.a. from the date of petition till the realization in its entirety from 2 nd respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS
9. ISSUE No.1:- If the above observed pleadings of the parties are taken into consideration, 2 nd respondent has denied the entire case of the petitioner (SCCH-15) 6 MVC.396/2014 and called the petitioner to put to strict proof of his case. It has not taken any specific plea with regard to the present issue.
10. On the other hand, 1st respondent admitted the accident but contended that there is no fault on the part of its driver in occurrence of the accident. Therefore, there is no dispute with regard to the alleged accident; the date, time and place of accident; vehicle involved in the accident and its driver. So now the only point that remained for the due consideration of this Tribunal is the rash and negligent aspect.
11. To establish that as observed above, petitioner himself has entered into witness box as PW-1. He has filed his affidavit evidence wherein he has reiterated the petition averments. He has specifically deposed that accident took place because of the negligent driving of the bus driver.
12. During his cross-examination not even a suggestion is made on behalf of 2 nd respondent about the rash and negligent aspect. However, 1 st respondent suggested that he has created and produced police (SCCH-15) 7 MVC.396/2014 papers in collusion with the police officials. The said suggestion is denied by petitioner. But to substantiate the said defence, 1st respondent has not let in any defence evidence. Therefore, there is nothing on record to disbelieve the oral evidence of petitioner with regard to the rash and negligent aspect.
13. Moreover, in support of his case, petitioner with his oral evidence has produced documentary evidence i.e. police papers at Ex.P-1 to 4 respectively the true copies of FIR with complaint, spot mahazar, MV report and charge sheet. All the police papers categorically reveal that the jurisdictional police have initially registered criminal case against the car driver for the offences punishable under Sections 279 and 337 of IPC.
14. The police papers also disclose that after the investigation, they have charge sheeted the bus driver for the offences alleged including offences under Section 338 of IPC. There is no cross-examination on behalf of both the respondents on police papers which are in consonance with the case of the petitioner. (SCCH-15) 8 MVC.396/2014
15. In addition, In addition there is presumption with regard to the police papers that they are prepared by investigating officers while discharging their official duties in investigation of a crime. Of course, the said presumption is rebuttal one. But both the respondents have not let in any such rebuttal evidence.
16. To prove the accidental injuries, petitioner with his oral evidence has also got adduced the oral evidence of the doctor who has assessed the disability/PW-2 who has filed his affidavit evidence in support of the case of petitioner. In addition, he has also produced medical records such as, wound certificate, hospital and medical bills, prescriptions and MRI report during his evidence at Ex.P-6 to 9 respectively.
17. During evidence of PW-2, petitioner has got produced OPD slip and x-ray film at Ex.P-13 and 14. All the medical records are in corroboration with each other and they reveal that petitioner has suffered injuries in the accident. Ex.P-5 is MLC register extract which is also in corroboration with the medical records (SCCH-15) 9 MVC.396/2014 and discloses that petitioner has suffered injuries in the accident.
18. Moreover during cross-examination of petitioner and the doctor, it is suggested that petitioner has suffered only simple injuries in the accident and in view of the union of fracture there is no disability at all to the petitioner. So even respondents have raised objections with regard to the disability they have not disputed the fact of petitioner suffering injuries in the accident.
19. Therefore, petitioner with his oral evidence coupled with oral evidence of PW-2, the police papers and the medical records observed above, has successfully proved that accident took place because of negligent driving of the bus driver and he has suffered injuries in the accident. Hence, issue No.1 is answered in affirmative.
20. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 41 years; working as an engineer in (SCCH-15) 10 MVC.396/2014 Wipro Technologies and had income of Rs.1,39,0000/- per month. To establish his age, petitioner has not produced any supportive documents.
21. However, it is in the charge sheet and in the medical records the age of petitioner is shown as 41 years. There is no cross-examination by the other side about the age of petitioner mentioned in those documents. Hence, nothing is there is disbelieve the case of petitioner that he was aged 41 years on the date of accident. Hence, his age is accepted as 41 years for which the proper multiplier applicable is 14.
22. To establish his avocation and income, petitioner with his oral evidence has produced salary slip at Ex.P-11 issued by Wipro wherein it is stated that the monthly gross salary of the petitioner is Rs.1,43,089/- and it is dated 01.05.2013.
23. Ex.P-12 is the leave certificate issued by Wipro wherein it is stated that petitioner has availed leave from 20.05.2013 to 16.06.2013. Authors of those documents are not examined before this Tribunal. However, during cross-examination of petitioner even it (SCCH-15) 11 MVC.396/2014 is suggested on behalf of 2 nd respondent that Ex.P-11 is created and the said suggestion is denied by petitioner, it is also suggested that his basic salary is Rs.31,470/- and it is elicited that approximately 33% of his salary will be deducted towards tax.
24. So, there is nothing on record to disbelieve the case of petitioner that he was an engineer in Wipro and had salary of Rs.1,39,000/- on the date of accident. But in view of the admission that 1/3 rd of his salary will be deducted towards tax, his net income comes to Rs.46,000/- approximately.
25. It is also the case of petitioner that in the accident he has suffered fracture of transverse process of L2 to L5 vertebra. He took treatment in Chinmaya Mission hospital, Indiranagar, Bengaluru. He has incurred Rs.75,000/- towards medical expenditure. He became permanently disabled because of accidental injuries. Petitioner has reiterated the above petition averments in his affidavit evidence. His chief evidence is denied by way of suggestions which are in turn denied by him.
(SCCH-15) 12 MVC.396/2014
26. PW-2/the doctor has filed his affidavit evidence wherein he has stated that as per wound certificate of Chinmaya Mission hospital MRI scan report Saptagiri Digital Imaging Centre and the say of petitioner, he came to know that petitioner had suffered RTA on 19.05.2013 at about 5 a.m.; he was diagnosed for displaced fracture of right transverse processes of L2 to L5 Lumbar vertebra and was treated conservatively.
27. It is also in his affidavit evidence that recently he has examined the petitioner on 18.02.2015 for assessment of disability. On clinical examination and radiological examination as well as on complaints of petitioner, it is found that petitioner is having permanent physical impairment to the vertebra column at 15.7% which comes 7.85% to the whole body.
28. He has also deposed that radiological examination reveal fracture of right transverse process of L3 vertebra shows nonunion and L2 to L5 vertebra are united. He has produced OPD slip and x-ray film at Ex.P-13 and 14 respectively. During his cross- (SCCH-15) 13 MVC.396/2014 examination he has reiterated his chief evidence and there is nothing to disbelieve his oral evidence.
29. Ex.P-6 is the wound certificate issued by Chinmaya Mission hospital and reveals that petitioner has suffered displaced fracture of right transverse process of L2 to L5 which are grievous in nature. OP slip at Ex.P-13 and x-ray at Ex.P-14 are in corroboration with the oral evidence of PW-2. So, if the entire evidence is taken into consideration, it can be safely held that petitioner has suffered fracture of L2 toL5 vertebra which are grievous in nature and was treated conservatively.
30. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-7, the hospital and medical bills totally 18 in nos. amounting to Rs.17,441/-. Bill at Sl.No.1 is receipt for Rs.6,750/- for MRI scan. Bill at Sl.Nos.2 to 5, 7, 9, 10, 13, 14, 17 and 18 are bills of Chinmaya Mission hospital. They are computerized bills in the name of petitioner.
31. The bills at Sl.Nos.5, 6, 11, 12, 15 and 16 are the cash bills of Krishna Pharma. Bills at Sl.Nos.8 and 11 (SCCH-15) 14 MVC.396/2014 are the bills with regard to implants cash bills. All the receipts are in the name of the petitioner and they are duly signed. Moreover in view of the nature of injuries suffered by petitioner there is nothing on record to disbelieve the said medical expenses. On the other hand, it appears that petitioner has incurred more than the expenditure at Ex.P-7. Hence, it is thought just to award Rs.20,000/- towards medical expenses including the medical bills at Ex.P-7 series.
32. It is not the case of petitioner that because of accidental injuries he was terminated from the service. Therefore, it appears that he is continuing in the service. It is the evidence of PW-2 that petitioner is having permanent physical impairment to vertebra column at 15.7% and thereby 7.85% to the whole body disability. So, PW-2 has taken half of the disability. But it is settled practice that 1/3rd of disability of a particular limb to be treated as whole body disability.
33. Therefore, considering the age of petitioner and the nature of avocation, it is just and proper to take whole body disability at 6% for loss of amenities and (SCCH-15) 15 MVC.396/2014 comfort as well as permanent physical impairment. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 20,000/-
Loss of income during laid up Rs. 10,000/- period, Diet, Nourishment and etc. Attendant charges, Conveyance, Rs. 10,000/-
other Incidental Charges and etc. Medical Expenditure Rs. 20,000/-
Loss of Amenities and Comfort Rs. 20,000/- Permanent Physical Impairment Rs. 20,000/-
Total:
Rs.1,00,000/-
34. Petitioner has sought interest @ 12%p.a. Considering the cost of living on the date of accident, it is thought fit to award interest @ 9% p.a. from the date of petition till realization of the compensation amount in its entirety.
35. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 1 st respondent is the RC owner and 2 nd respondent is the insurer of the bus. 2nd respondent of course has contended that liability is subject to the terms and (SCCH-15) 16 MVC.396/2014 conditions of the policy such as driving license and vehicular documents.
36. 2nd respondent has not at all let in any defence evidence to establish its breach of policy conditions. On the other hand, if the entire evidence on record is taken into consideration as per Ex.P-4, the jurisdictional police have charge sheeted the bus driver for the offences punishable under Sections 279, 337 and 338 of IPC. There is no allegation with regard to either driving license or vehicular documents.
37. So, it appears that the bus driver did possess valid and effective driving license and the bus also had valid and effective documents which were in order and in force as on the date of accident. Hence, 1 st respondent being the RC owner is liable to pay the compensation and 2nd respondent being the insurer is liable to indemnify the said liability.
38. So, petitioner is entitled for compensation of Rs.1,00,000/- together with interest at 9% p.a. from the date of petition till the realization of the (SCCH-15) 17 MVC.396/2014 compensation in its entirety from 2nd respondent. Issue No.2 is answered accordingly.
39. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.1,00,000/- together with interest @ 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount since after deducting the medical expenses, the remaining compensation is meager, it is ordered that the entire compensation amount together with interest and cost be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.1,000/-. Draw a decree accordingly.
(Dictated to the stenographer,
transcribed by him, corrected and then
(SCCH-15) 18 MVC.396/2014
pronounced in the open Court by me on this the 19th day of March, 2015.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Roshan.V. PW2: Dr.S.Ramachandra
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
- None -
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 : True copy of FIR with Complaint, Ex.P2 : True copy of spot mahazar, Ex.P3 : True copy of IMV report, Ex.P4 : True copy of charge sheet, Ex.P5 : True copy of MLC register, Ex.P6 : True copy of wound certificate, Ex.P7 : Hospital and medical bills (18 in nos.) amounting to Rs.17,441/-, Ex.P8 : Prescriptions (8 in nos.), Ex.P9 : MRI report, Ex.P10 : Bus ticket, Ex.P11 : Salary slip. Ex.P12 : Leave certificate. Ex.P13 : OPD slip, Ex.P14 : X-ray film.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
- Nil -(SCCH-15) 19 MVC.396/2014
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.(SCCH-15) 20 MVC.396/2014
19/03/2015:
Judgement pronounced in the open court (vide separate order) ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.1,00,000/- together with interest @ 9% p.a. from the date of petition till the realization in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount since after deducting the medical expenses, the remaining compensation is meager, it is ordered that the entire compensation amount together with interest and cost be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.1,000/-.
Draw a decree accordingly.
(K.KATYAYINI) XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.(SCCH-15) 21 MVC.396/2014
AWARD SCCH NO.15 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BENGALURU CITY MVC No.396/2014 Petitioner/s Roshan.V. S/o Late Vittal Nayak, Aged about 41 years, No.112, 2nd Cross, 4th Main, HAL 3rd Stage, Bengaluru - 560 075.
(By Pleader - Smt.Anitha R.Naik.) V/s Respondent/s 1.The Managing Director, K.S.R.T.C. Kengal Hanumanthaiah Road, Shanthinagar, Bengaluru - 560 027.
(KSRTC A/c Sleeper bus bearing registration No.KA-19-F-3055) (By Pleader - Sri.Mahadevaiah.)
2.New India Assurance Company Ltd., C.D.U.11, Unity Building, Tower Bock, 4th floor, J.C.Road, Bengaluru - 560 002.
(By Pleader - Sri.B.Anjaneyalu.) WHEREAS, this petition filed on by the petitioner above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs. (SCCH-15) 22 MVC.396/2014
for the injuries sustained by the petitioner/death in a motor accident caused by vehicle bearing No. WHEREAS, this claim petition coming up before K.Katyayini, Judge, Member-MACT, Bengaluru, in the presence of Shri Advocate for petitioner/s and of Shri Advocate for respondent.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation amount of Rs.1,00,000/- together with interest @ 9% p.a. from the date of petition till the realization in its entirety from 2 nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount since after deducting the medical expenses, the remaining compensation is meager, it is ordered that the entire compensation amount together with interest and cost be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.1,000/-. Draw a decree accordingly.
Given under my hand and seal of the Court this the day
of 2015.
(SCCH-15) 23 MVC.396/2014
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BENGALURU.
By the By the Respondent
Petitioners
Court fee paid on petition
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee:
Total
Decree Drafted by: Scrutinised by:
Decree Clerk: Sheristedar: MEMBER
MOTOR ACCIDENT CLAIMS
TRIBUNAL
(SCCH-15) 24 MVC.396/2014