Bangalore District Court
Smt.Renukadevi.R @ Renuka vs The Managing Director on 11 January, 2017
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 11th DAY OF JANUARY, 2017
PRESENT: SMT. ROOPA K.N. B.Sc, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.2903/2015
PETITIONER : Smt.Renukadevi.R @ Renuka
W/o. Suresh,
Aged about 42 years,
Residing at No.20
Subbanna Layout,
Harinanagara Cross,
Bengaluru.
And also residing at
No.51, 2nd Cross,
Kanakanaplaya,
Jayanagara 2nd Block,
Bengaluru South,
Bengaluru-560 011
(By Sri.V.N.Simha, Adv.,)
V/s
RESPONDENTS : 1. The Managing Director,
VRL Logistics Limited,
Regd. And Admn Office at NH-4,
Bengaluru Road,
Varur, Hubli,
(RC Owner of bus bearing No.KA-
2 MVC No.2903/2015
SCCH 5
25-D-4795)
(By Sri. Aravind M Neglur, Adv.,)
2. United India Insurance Company
Limited,
Divisional Office, No.1
Enkey Complex, Hubli-580 023
(PolicyNo.2403003114P 109414551
valid from 08-02-2015 to 07-02-
2016)
(By Sri.Ravish Benni Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 31-03-2015 at about 5.40 p.m., when the Petitioner was proceeding from Yelechenahalli towards Sarakki on a pillion rider Honda Activa bearing Reg.No.KA-05-HY-9896 near ring road, one VRL Bus bearing Reg.No.KA-25-D-4795 driven by its driver in a rash and negligent manner endangering human life and 3 MVC No.2903/2015 SCCH 5 dashed against the Honda Activa from back side, as a result of which, she fell down and sustained injuries. As a result, Petitioner sustained grievous injury on her left leg and left hand and she was taken to Rajashekar Hospital for first aid was given and there after Jayanagar Orthopedic Center, Bengaluru wherein the doctor has noticed communited Hoffa's fractures (L) and ead fracture of fibular head (L) degloving skin (L) thigh leg and other injuries all over the body and she was admitted as an inpatient from 31-03-2015 to 16-04-2015 and she undergone surgery and skin grafting. Thereafter, she was taken regular follow up treatment. According to her, earlier to the accident she was working as Teacher on at Shanthinikethana School, Micolayout and earning Rs.12,500/- p.m. But, now she is unable to do his regular work as normally as she was doing earlier. Hence, he has claimed compensation of Rs.10,07,500/-.
3. After service of notice, Respondents No.1 and 2 appeared through their respective counsels. Respondent 4 MVC No.2903/2015 SCCH 5 No.1 in his written statement denied the averments of the Petition and admitted he got insured the vehicle with Respondent No.2 and driver of the bus got a valid driving licence as on the date of the alleged accident. Accordingly, prays to dismiss the petition against him.
Respondent No.2 in its written statement denied averments of the claim petition and admitted issuance of policy infavour of Bus bearing Reg.No.KA-25-D-4795 and if there is any liability to pay the compensation, it is subject to terms and conditions of the policy. Except this all other defences are formal in nature and prays to dismiss the claim petition.
4. On the basis of the above pleadings, my predecessor in the office has framed the following:
::ISSUES::
1. Whether Petitioner proves she sustained injuries in road traffic accident that occurred on 31-03-2015 at about 5.40 p.m. on ring road junction, Kanakapura Main road, Bengaluru, while the Petitioner was pillion rider in Honda Activa bearing registration.No.KA-05-HY-9896, due to rash 5 MVC No.2903/2015 SCCH 5 and negligent act of driving of the VRL Bus driver, vehicle bearing Reg.No.KA-25-D-
4795, has met with an accident?
2. Whether Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
5. In order to prove the above Issues for consideration, Petitioner examined herself as PW-1 and got marked Ex.P.1 to Ex.P.14 and Ex.P.17 to Ex.P.19. Further, Dr.B.Ramesh, Orthopaedic Surgeon at Jayanagar Orthopedic Centre, Bengaluru has been examined as PW-2 and on his side Ex.P.15 and 16 were got marked. Per contra, Respondents did not prefer to lead any oral or documentary evidence.
6. Heard the arguments of learned counsel for the Petitioner and Respondents.
7. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 Partly in the affirmative,
6 MVC No.2903/2015
SCCH 5
Petitioner is entitled for a total compensation of Rs.9,42,000/-
along with interest at 9% p.a. from the Respondents.
Issue No.3 : As per final order for the following:
::REASONS::
8. Issue No.1 and 2: As these two issues are interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
9. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of driver of the Bus bearing Reg.No.KA-25-D- 4795. Inorder to prove the above said issues, Petitioner examined herself as PW-1 and got marked Ex.P.1 to Ex.P.14 which are the police records and medical records and Ex.P.12 is the salary certificate pertaining to the Petitioner.
7 MVC No.2903/2015
SCCH 5
10. If we carefully peruse the materials available on record, though the Respondent No.2 Insurance Company had taken sufficient defence in their objection statement, no evidence is adduced to disprove the case of the Petitioner. Mere cross-examination of PW-1 in length no way helps the Respondent No.2. The cross- examination of PW-1 is full off bear suggestions and denials. Hence, this court has to only embark upon the documentary evidence available on record the police records like spot mahazar and sketch clearly goes to show that, on the date of accident when this Petitioner was going on a Honda Active as a pillion rider i.e., on 31- 03-2015 at about 5.40 pm., the driver of the offending VRL Bus bearing Reg.No.KA-25-D-4795 driven the same in a rash and negligent manner on Kanakapura main road i.e., from Yelechenahalli towards Saraki and dashed against the Honda Active, as a result of which Petitioner suffered injuries. Ex.P.8 is the certified copy of Judgment in CC.No.5272/2015 wherein the learned Metropolitan 8 MVC No.2903/2015 SCCH 5 Magistrate Traffic Court-IV Bengaluru, has convicted accused for the offences punishable under section 279 and 338 of IPC. It is well settled principle of law that, the Judgment of criminal court no way can sit over the powers of MACT. Hence, mere conviction in the criminal case cannot be a ground absolved from payment of compensation. These police records, clearly goes to show that, this accident was due to rash and negligent driving by the driver of the offending VRL Bus.
11. Coming to the question of quantum of compensation to be awarded, Petitioner has produced all the medical records wherein Ex.P.9 is the wound certificate shows that, Petitioner has suffered following injuries i.e., Communited hoffa's fracture (L), Fracture fibular head and degloving of skin (L) in respect of which she was admitted as an inpatient in Jayanagara orthopedic Center from 31-03-2015 till 16-04-2015 and the medical bills are produced to the tune of Rs.2,05,006/-.
9 MVC No.2903/2015
SCCH 5
12. The Petitioner has examined PW-2 Dr.B.Ramesh, Jayanagara Orthopedic Centre, Jayanagar, Bengaluru, he is not a treated doctor but he is assessed the disability of the Petitioner and according to him i.e., permanent physical disability of 46% left lower limb and 23% to the whole body. According to him, fractures though united but there is a mal union inrespect of which Petitioner cannot walk and do her job. According to the Petitioner, at the time of accident, she was working in Shanthinikethan Trust School, Micolayout, Bengaluru as a teacher and because of the injuries sustained in this road traffic accident since she could not stand for long time she discontinued attend her job. In cross- examination she has admitted that, she has not been terminated by the school for disability she suffered. It is true that, school authorities have not removed the Petitioner from the said job because of the disability which the Petitioner is now complaining and author of Ex.P.12 has also not been examined by the Petitioner. As 10 MVC No.2903/2015 SCCH 5 per Ex.P.12 Petitioner was drawn her salary of Rs.11,500/- Per month but no documents is produced in this regard to prove as to whether this salary was paid by the school authorities by way of cash or cheque. This creates a doubt in the mind of court regarding the monthly income of the Petitioner is concerned but any how the Respondents have also not chosen to prove the contrary so that this court can disbelieve the evidence of PW-1 that apart when ever the Petitioner appeared before this court this court has even observed the physical disability which one could notice by the bear eyes that, Petitioner could not walk without any support. If we peruse the disability assessed by PW-2 admittedly he is not a treated doctor and he has assessed physical disability of 46% of left lower limb and he assessed disability of 23% to the whole body.
13. If we carefully peruse the injures suffered by the Petitioner, mere reason that, PW-2 is not the treated doctor, itself cannot be a ground to disbelieve the 11 MVC No.2903/2015 SCCH 5 evidence of PW-2 though the document like Ex.P.8 is quite suspicious, even if the same is viewed in a different angle, Petitioner is a married women but separated from her husband for some domestic non cordiality this shows that, Petitioner leave her life on her own earnings throughout her life and she is already aged 42 years. In view of this I hold that Petitioner being a house wife at present, her monthly income though cannot be calculated in terms of money but for the sake of calculating compensation, the notional income of Rs.10,000/- would be suffice.
14. Coming to the question awarding compensation under head of pain and suffering Petitioner who is a lady aged 42 years, being a house wife she has to stand for longtime and to do her household work and in due course of time, Petitioner may suffer her age related health issue because of these injuries and some extent of disability, pain and suffering will continue throughout her life. Further, Ex.P.8 shows that, she was 12 MVC No.2903/2015 SCCH 5 working as a teacher and it is quite obvious that, a job of teacher is to stand and teach the students and something happens to legs obviously a person cannot stand for longtime and teach the students and a teacher is not supposed to sit and teach the student. This shows that, because of the injuries sustained by the Petitioner, she has lost or discontinued her job, she has not produced documents to show that, she was not been paid with salary for her treatment period. Hence, there is no question of awarding compensation in respect of loss of income for the laid down. Any how Petitioner is entitled for compensation of Rs.2,00,000/- under the head of pain and sufferings.
15. The following calculation is made for loss of future income due to disability.
Sl. Particulars Calculation Total
No.
(i) Salary Rs.10,000/- p.m.
Annual income Rs.1,20,000/-
(ii) Whole body
disability is taken as
13 MVC No.2903/2015
SCCH 5
23%
(iii) Total income after Rs.27,600/-
considering 23%
disability to the
whole body i.e., 23% -
of (i) Rs.1,20,000/-
(iv) Compensation after Rs.27,600/- x 14 Rs.3,86,400/-
multiplier of 14
(for the age group of
41 to 45, the proper
multiplier applicable
as per Sarla
Varma's Case)
16. The Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
a) to treatment, hospitalization, 2,05,006-00 medicines, transportation
b)nourishing food and 25,000-00 miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had he not been injured, comprising:
a) Loss of earnings during period - of treatment
b) Loss of future earnings on 3,86,400-00 account of permanent disability 14 MVC No.2903/2015 SCCH 5
3. Future medical expenses 25,000-00 II. NON-PECUNIARY DAMAGES (General Damages)
4. Damages for pain, suffering and 2,00,000-00 trauma as a consequence of the injuries
5. Loss of amenities ( and/or loss 1,00,000-00 of prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity) Total 9,41,406-00 rounded off Rs.9,42,000-00
17. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.9,42,000/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.25,000/-) from the date of petition till its realization.
18. Relying upon a judgment of the Hon'ble Apex Court reported in 2013 AIR SCW 5375 in between Minu Rout and ors. V/s. Satya Pradyumna Mohapatra and ors., with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.13 of the judgment, 15 MVC No.2903/2015 SCCH 5 Hon'ble Apex Court held that, 'Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date application till the date of payment' and also by following the principles laid down in (2011) 4 SCC 481: AIR 2012 SC 100 in between Municipal Council of Delhi V/s. Association of Victims of Uphaar Tragedy. In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
19. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.2 being the Insurance Company had issued policy infavour of Respondent No.1 inrespect of Bus bearing Reg.No.KA- 25-D-4795 and it is valid and effective on the date of 16 MVC No.2903/2015 SCCH 5 accident. Accordingly, the Respondent No.2 being the insurer and Respondent No.1 being the owner of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. However, Respondent No.2 has to indemnify Respondent No.1. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
20. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following:
::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.
Petitioner is entitled for total compensation of Rs.9,42,000/- (Rupees Nine Lakhs Forty Two Thousand Only) with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.25,000/-), from the date of petition till the date of realization.
The Respondent No.2 is liable to pay the compensation to the Petitioner and shall deposit 17 MVC No.2903/2015 SCCH 5 the said amount within 60 days from the date of this order.
Out of total compensation, 75% to be released in favour of Petitioner by way of crossed cheque and remaining 25% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in her name.
The Advocate`s fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 11th day of January, 2017) (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Smt. Renukadevi R @ REnuka PW-2 : Dr. B.Ramesh
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
-NIL-18 MVC No.2903/2015
SCCH 5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : Copy of FIR with Complaint 4
Statements
Ex.P.2 : Copy of Mahazar
Ex.P.3 : Copy of Sketch
Ex.P.4 : Copy of IMV report
Ex.P.5 : Copy of 133 of notice
Ex.P.6 : Reply
Ex.P.7 : Copy of charge sheet
Ex.P.8 : Copy of Judgment in CC No.5275/2015
Ex.P.9 : Copy of Wound certificate
Ex.P.10 : Discharge Summary
Ex.P.11 : Reports
Ex.P.12 : Salary Certificate
Ex.P.13 : 56 Medical Bills along with 28 Prescription Ex.P.14 : 5 X-rays with 4 CT Scan Ex.P.15 : Case sheet Ex.P.16 : X-ray Ex.P.17 : Service Certificate Ex.P.18 : Estimation Certificate Ex.P.19 : Three Medical Bills LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
-NIL (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.