Bangalore District Court
Muthappa @ Mathiah vs National Insurance Co.Ltd on 14 October, 2015
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.243/2014
Dated this the 14th day of October 2015
Petitioner/s : Muthappa @ Mathiah
S/o late Huchappa
Aged 35 years
R/o No.125,
Addiganahalli,
Hesaraghatta Hobli,
Bangalore North Taluk,
Bangalore District.
(By pleader Sri SVS)
V/s
Respondent/s 1. National Insurance Co.Ltd.,
By its Manager,
Regional Office,
Shugharam complex, 2nd floor,
No.144, M.G road,
Bangalore-01,
(By pleader Sri RSS)
2. Ramachandra. J.V
S/o Venkatachalapathi J.S
Aged major,
No.2853, Ganigarapete,
Doddaballapura Town,
Bangalore Rural District.
(Exparte)
SCCH-14 2 MVC No.243/2014
3. Smt.Lalithamma.B
W/o B.K Mallappa
Aged Major,
R/o No.1548
Hemavathipete,
Doddaballapura,
Bangalore Rural District.
PIN: 561 203.
(Present RC owner of Maruthi Omni)
(Exparte)
XVI ADDL.JUDGE,
Court of Small Causes & MACT.,
Bangalore.
SCCH-14 3 MVC No.243/2014
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.7,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 16.12.2013 at about 09.00 P.M., the petitioner was crossing Doddaballapura-Rajanukunte road slowly and cautiously. When he reached near Rajanukunte bus stop, Rajanukunte, at that time, Maruthi Omni Car bearing No.KA-43-M-615 driven by its driver in a rash and negligent manner, so as to endanger human life came and dashed against the petitioner. Due to impact, the petitioner fell down and sustained grievous injuries. Immediately, the petitioner was taken to Sree Saiprasad Multi Specialty Hospital, Yelahanka New Town wherein he was admitted as an inpatient from 17.12.2017 to 26.12.2013 for about 10 days. He underwent surgery and discharged with an advice to take follow up treatment and bed rest. He spent Rs.2,00,000/- towards medicine and incidental expenses. Prior to the accident, the petitioner was hale and healthy, was aged 35 years, was working as vegetable vendor and was earning Rs.500/- per day. Due to accidental injuries, he could not attend to his work as a result loss of earning and earning capacity. The petitioner has suffered permanent disability and he is unable to sit, stand, walk, run, squat, cannot use India toilet, ride motorcycle, unable to lift heavy weight, cannot do routine work, etc., Rajanukunte police have registered Cr.No.214/2013 against the driver of Maruthi Omni Car bearing No.KA-43-M-615 for the offences punishable U/Sec.279, 337 of IPC.
The respondent no.1 to 3 are the insurer, present RC owner of the SCCH-14 4 MVC No.243/2014 Maruthi Omni Car bearing No.KA-43-M-615 and are jointly and severally liable to pay compensation. Hence, the petitioner has sought for awarding compensation of Rs.7,00,000/- with cost and interest. Initially, the case was filed only against the respondent No.1 and 2. During the trial, it is found that the policy is in the name of the respondent No.3. A direction was issued to the petitioner to implead the policy holder as party to the proceeding. Later, the said policy holder is impleaded as the respondent No.3.
3. In pursuance of the notice, the respondent no.1 has appeared before the Court through his counsel and filed statement of objections. Notice was served upon the respondent no.2, but notice was not served on the respondent No.3 in the ordinary course. Hence, notice was issued to the respondent No.3 by substitute method i.e., by paper publication of citation in newspaper. In spite of it, the respondent no.2 and 3 remained absent and hence, they are placed exparte.
The respondent no.1 has admitted the issuance of policy in favour of respondent no.3 in respect of Maruthi Omni Car bearing No.KA-43-M-615, but he has denied the other averments of the petition as false. He has contended that the petition is not maintainable either in law or on facts, that the insured and the police have not complied with their mandatory duties, that the driver of Maruthi van was not holding a valid and effective driving licence as on the date of accident, that the insured has committed breach of terms and conditions of the policy, that he is not liable to indemnify the respondent no.3, that the insured vehicle was not involved in the SCCH-14 5 MVC No.243/2014 accident, that there was no rashness or negligence on the part of the driver of Maruthi van, that the accident has occurred due to the negligence on the part of petitioner himself who without having proper look out vehicular movement on the road, that the compensation claimed by the petitioner is highly excessive, exaggerated, arbitrary and speculative. Hence, he has sought for dismissal of the petition with exemplary costs as against him.
4. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 16.12.2013 at about 09.00 p.m., Near Rajanukunte Bus Stand, Yelahanka, Doddaballapura Road, Bangalore, in an accident arising due to rash and negligent driving of the driver of Maruthi Omni Car bearing No.KA-43-
M-615?
2. Whether the petitioner is entitled or 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 P15. The respondent no.1 has not adduced any oral or documentary evidence on his behalf.
SCCH-14 6 MVC No.243/20146. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1 : In affirmative.
Issue No.2 : In affirmative. For Rs.3,50,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The respondents are the insurer and owner of Maruthi Omni car bearing No.KA-43-M-615. The respondent No.2 remained exparte. The respondent No.1 has denied the case of the petitioner, but he has contended that there was no negligence on the part of the driver of insured car and the accident was due to negligence of the petitioner who was crossing the road without observing the movement of vehicles. By his pleading, the respondent No.1 has admitted the occurrence of accident and involvement of insured vehicle in the accident. He has disputed the negligence of the driver of his insured vehicle, but he has not made any efforts to prove his defence. He has not examined the driver of car to prove the negligence of the petitioner. On the contrary, the petitioner has examined himself as PW-1 and got marked copies of police records as Ex.P1 to 6 to prove the negligence of the driver of Maruthi Omni car bearing No.KA-43-M-615. He has relied upon his own evidence and that of PW-2 Dr.Girish H.Rudrappa and contents of Ex.P5, 7, 13 to 15 to prove the injuries caused to him in the accident.
9. Evidence of PW-1 and 2 is as per the averments of the petition. Police records reveal the investigation done by the police regarding accident. Charge sheet came to be filed against the driver of SCCH-14 7 MVC No.243/2014 the Maruthi Omni car bearing No.KA-43-M-615 for the offences punishable U/s 279 and 338 of IPC which is prima facie evidence as to negligence of said driver. The respondent No.1 has not produced any evidence to believe that the charge sheet filed by police is defective or collusive. The investigation of the police corroborates the evidence of PW-1 as to manner of accident. FIR reveals that there was a delay of a day in lodging complaint, but wound certificate goes to show that the petitioner was taken to Sree Saiprasad hospital on 17.12.2013 with the history of road traffic accident. Time and place of accident mentioned therein tally with the particulars of accident given in the petition. The complaint was lodged by the brother of the petitioner who is an eye witness to the accident. The petitioner was in the hospital till 26.12.2013. Hence, delay in lodging complaint is natural and acceptable. The panchanama reveals that Maruthi Omni car bearing No.KA-43-M-615 was detained from the place of accident. The sketch discloses that the accident has occurred on the edge of 20' wide road. There was sufficient space for the driver to drive his car without causing accident. IMV report reveals that the brake system of the car was in order. The driver could have avoided the accident by applying brakes. Admissions of PW-2 and contents of Ex.P13 show that the petitioner is a chronic alcoholic and withdrawal symptoms were noticed when he was in hospital. There is nothing on record to disbelieve the contents of Ex.P13 which were recorded by the doctors as per the information given by the petitioner. On the basis of said evidence, it can be held that the petitioner is an alcoholic, but there is no entry in Ex.P5, 7 and 13 that the petitioner was under the influence of alcohol when he was taken to hospital. Even if he had consumed alcohol at the time of accident, it does not SCCH-14 8 MVC No.243/2014 give any right to the driver of a vehicle to cause accident. There is no evidence to say that there was sole or contributory negligence on the part of the petitioner for the occurrence of the accident. If the driver of car had given evidence as to negligence of the petitioner, then the matter would be different. Even a person walks on the road, it does not give any authority to any person to cause him accident. If there is evidence that pedestrian abruptly walks on the road without observing the movement of vehicle and without giving any chance for the driver of vehicle to apply brakes, then we can hold that the pedestrian was responsible for the accident. No such evidence is adduced in this case. Hence, I believe the evidence of PW-1 and 2 and contents of Ex.P1 to 7, 13 to 15 and hold that the petitioner sustained fracture injury in the accident which was due to rash and negligent driving of the driver of Maruthi Omni car bearing No.KA-43- M-615. The petitioner has succeeded to prove his case as to manner of accident and nature of injuries caused to him. The respondent No.1 has failed to rebut the case of the petitioner. Hence, I answer the issue in affirmative.
10. ISSUE NO.2: Evidence of PW-1 and 2 and contents of wound certificate and discharge summary at Ex.P5 and 7 disclose that the petitioner has sustained following injuries in the accident;
1.Grade II compound fracture of shaft of right femur.
2.Pain, swelling and deformity of right thigh. He underwent CRIF in Sree Saiprasad hospital. He was an in patient in the said hospital from 17.12.2013 to 26.12.2013. Charge sheet filed by police confirms the causing of grievous injuries to the petitioner. However, there is no corroboration to the evidence of PW-1 that he incurred Rs.1,75,000/- towards medical expenses and SCCH-14 9 MVC No.243/2014 Rs.50,000/- towards incidental expenses. He has produced medical bills amounting to Rs.1,38,239/- at Ex.P12 which are supported by lab reports and prescriptions at Ex.P8, 9 and 11. The bills are consistent with injury and case sheet at Ex.P13. X-rays at Ex.P14 and 15 confirm the fracture. There is nothing on record to disbelieve the medical bills. The nature of injury requires follow up treatment and bed rest for about 8 -10 weeks. The petitioner was an inpatient for 10 days. Thus, total laid up period would be 3 months. During the said period, the petitioner might have spent amount towards nourishment, conveyance and attendant charges apart from losing his income.
11. PW-1 Muthappa @ Muthaiah has stated that he was aged 35 years, was a vegetable vendor and was earning Rs.500/- per day. Ex.P10 is copy of voter ID is which the date of birth of the petitioner is mentioned as 01.01.1969. As per it, the age of the petitioner comes to 43 years. There is nothing on record to disbelieve the same. Charge sheet reveals that the petitioner is a businessman which supports the evidence of PW-1, but there is no corroboration to his evidence as to income. In the absence of positive evidence, his income shall have to be assessed notionally. Hence, I hold that the petitioner was aged 43 years, was a vegetable vendor and was earning Rs.8,000/- per month, as on the date of accident. Looking to the injury, treatment, medical expenses, period of follow up treatment and bed rest and loss of income, I award a compensation of Rs.40,000/- towards pain and sufferings, Rs.1,40,000/- towards medical expenses, Rs.15,000/- towards nourishment, conveyance and attendant charges, Rs.24,000/- towards loss of income during laid up period.
SCCH-14 10 MVC No.243/201412. PW-2.Dr.Girish H Rudrappa has deposed that the petitioner is suffering from permanent disability of 6.67% to whole body from right leg, that the said disability is functional disability, that the petitioner needs one more surgery for removal of implants which costs Rs.30,000/- in Sree Saiprasad hospital. In cross examination, he has stated as under:
"It is true to suggest that before surgery, it is notice that alcoholic withdrawal symptoms were found in respect of petitioner. It is true to suggest that the fracture is united. It is true to suggest that at the time of assessment of disability, the petitioner came to me independently by walking".
"It is true to suggest that the disability can be suitability and correctly assessed after removal of implants. Witness says that the disability which is assessed by me is the present disability of the petitioner. It is true to suggest that the extent disability of the petitioner may be reduced after the future surgery, but it could be minor correction".
Looking to the above admissions, I am of the opinion that the extent of disability suffered by the petitioner is 6% to whole body. Since, the disability is from right leg, it affects the capacity of the petitioner to do his business and thereby affects his earning capacity. Hence, I am of the opinion that the petitioner has suffered loss of earning capacity to the extent of 6%. His annual income is Rs.96,000/-. He was aged 43 years. Appropriate multiplier is 14. Hence, loss of future income of the petitioner would be Rs.96000X14X6%=Rs.80,640/-.
SCCH-14 11 MVC No.243/201413. The petitioner is suffering from certain disabilities which may persist in future. The oral evidence of PW-1 in that regard is believable. PW-2 has deposed about existence of pain to the petitioner in fracture site. The difficulties will result in loss of amenities. Looking to the final bill of surgery, I am of the opinion that cost of future surgery as stated by PW-2 is reasonable and believable. Hence, I award a compensation of Rs.25,000/- towards loss of amenities and Rs.25,000/- towards future medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under:
1 Pain and sufferings Rs. 40,000/- 2 Medical expenses Rs. 1,40,000/- 3 Nourishment, conveyance Rs. 15,000/-
and attendant charges 4 Loss of income during laid Rs. 24,000/-
up period 5 Loss of Future income Rs. 80,640/- 6 Loss of amenities Rs. 25,000/-
7 Future medical expenses Rs. 25,000/-
Total Rs.3,49,640/-
Rounded to Rs.3,50,000/-.
The petitioner is further entitled for interest @9% from the date of petition till the date of payment.
14. The respondents are the insurer, owner and policy holder of Maruthi Omni car bearing No.KA-43-M-615. The change of policy indicates the change of ownership. There is nothing on record to believe that the ownership of vehicle was with the respondent No.2 as on the date of accident. Hence, I hold that the respondent No.3 was the owner and policy holder of said car on the said date. The accident has occurred due to rash and negligent driving of the driver of said car. Hence, the respondent no.1 and 3 are jointly and severally liable SCCH-14 12 MVC No.243/2014 to pay compensation and interest to the petitioner. There is no evidence as to violation of policy conditions by the respondent No.3. Hence, respondent No.1 is liable to indemnify the respondent no.3 and to compensate the petitioner as stated above. Consequently, I answer the issue as above.
15. ISSUE NO.3: In view of above discussion and findings, I proceed to pass following:
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.3,50,000/-with interest @ 9% per annum from the date of petition till the date of payment. However, Future medical expenses do not carry any interest.
The respondent No.1 and 3 are jointly and severally liable to pay to the petitioner a compensation of Rs.3,50,000/- 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 or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.SCCH-14 13 MVC No.243/2014
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 14th day of October 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 14 MVC No.243/2014
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Muthappa @ Muthaiah
PW.2 Dr.Girish H Rudrappa
Respondent' s Nil
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of Spot Panchanama
Ex.P3 - Copy of IMV report
Ex.P4 - Copy of spot sketch
Ex.P5 - Copy of wound certificate
Ex.P6 - Copy of chargesheet
Ex.P7 - Discharge summary
Ex.P8 & 9 - Lab reports
E.xP10 - Copy of Voter ID
Ex.P11 - 24 prescriptions
Ex.P12 -18 medical bills
Ex.P13 -Copy of inpatient records of Muthappa
Ex.P14 -Recent X-ray
Ex.P15 -4 other X-rays
Respondent's Nil.
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 15 MVC No.243/2014
Dt.14.10.2015
P-SVS
R1-RSS
R2&3-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.3,50,000/-with interest @ 9% per annum from the date of petition till the date of payment. However, Future medical expenses do not carry any interest.
The respondent No.1 and 3 are jointly and severally liable to pay to the petitioner a compensation of Rs.3,50,000/- 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 or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the 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 16 MVC No.243/2014
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.243/2014 Petitioner/s : Muthappa @ Mathiah S/o late Huchappa Aged 35 years R/o No.125, Addiganahalli, Hesaraghatta Hobli, Bangalore North Taluk, Bangalore District.
(By pleader Sri SVS) V/s Respondent/s 1. National Insurance Co.Ltd., By its Manager, Regional Office, Shugharam complex, 2nd floor, No.144, M.G road, Bangalore-01, (Insurer of Maruthi Omni Car) (By pleader Sri RSS)
2. Ramachandra. J.V S/o Venkatachalapathi J.S Aged major, No.2853, Ganigarapete, Doddaballapura Town, Bangalore Rural District.
(RC owner of Maruthi Omni Car) (Exparte)
3. Smt.Lalithamma.B W/o B.K Mallappa Aged Major, R/o No.1548 SCCH-14 17 MVC No.243/2014 Hemavathipete, Doddaballapura, Bangalore Rural District.
PIN: 561 203.
(Present RC owner of Maruthi Omni)
(Exparte)
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.
The petitioner is entitled for a compensation of Rs.3,50,000/-with interest @ 9% per annum from the date of petition till the date of payment. However, Future medical expenses do not carry any interest.
The respondent No.1 and 3 are jointly and severally liable to pay to the petitioner a compensation of Rs.3,50,000/- with interest. In view of policy, the SCCH-14 18 MVC No.243/2014 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 or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the 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 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By 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 19 MVC No.243/2014
SCCH-14 20 MVC No.243/2014