Bangalore District Court
Mr. Janardhan S vs Sri. Ramesh Reddy on 8 October, 2021
IN THE COURT OF XVII ADDL. JUDGE, COURT OF
SMALL CAUSES, & MEMBER, M.A.C.T,
MAYO HALL UNIT, BENGALURU (SCCH-21)
Dated this the 8th Day of October 2021
PRESENT: Smt. VANI A. SHETTY, B.A. Law L.L.B,
XVII ADDL. JUDGE, Court of Small
Causes & Member, M.A.C.T.,
Bengaluru.
M.V.C. No. 446/2020
Petitioner/s: Mr. Janardhan S.,
S/o. L.K.Somanath Rao,
Aged about 48 years,
R/at #129/1, Near Water Tank,
Thirumalappa Layout,
Immadihalli, Whitefield,
Bangalore - 66
M-9916010714
(By Sri. M. Subramani, Advocate)
-Vs-
Respondent/s: 1. Sri. Ramesh Reddy,
S/o. Narayanareddy,
R/at 59/6, Gowri Shankar Nilaya,
DNR Building,
Annapoorneshwari Temple Street,
Virat Nagar,
Bommanahalli,
Bangalore - 68.
(Owner of the car bearing Reg.No. KA-03-
MS-7002)
(Exparte)
2. United India Insurance Co., Ltd.,
TP-HUB, No.18, Krushibhavan,
6th floor, Nrupathunga road,
Opp. Hudson Circle,
SCH-21 2 MVC-446/2020
Bangalore - 01.
(Policy No.0718033119P106193514
Valid from 16.08.2019 to 15.08.2020)
(By Sri. Raghavendra Bhat, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of the Motor Vehicles Act, 1989, claiming compensation of Rs.20,00,000/- from the respondents for the injuries sustained to him in the road traffic accident that took place on 27.11.2019.
2. The brief facts of the case of the petitioner as follows:
On 27.11.2019 at about 9.00 a.m., while petitioner was riding the motor cycle bearing Reg. No. KA-03-JV-0925, in front of JSS college, near BDA complex, outer ring road, Bengaluru, the driver of car bearing Reg. No. KA-03-MS-7002 by driving it in a rash and negligent manner, dashed the motor cycle of the petitioner, caused the accident and as a result, petitioner sustained injuries. Immediately, petitioner was taken to Lotus Hospital, wherein first aid was given and thereafter, shifted to Svasta hospital, Whitefield, Bengaluru, wherein he took treatment for the accidental injuries sustained by him. It is stated that he has spent more than Rs.3,00,000/- for his treatment, medicine etc.,
3. It is further stated that prior to the accident, petitioner was hale and healthy and was working as Quality SCH-21 3 MVC-446/2020 Assistant at Prateek Apperels Co., Ltd.,, Bommanahalli, Bengaluru and was earning Rs.25,000/- per month. Due to the accidental injuries, he is unable to do his work as doing earlier. It is stated that the accident in question was due to the rash and negligence on the part of the driver of the car bearing Reg. No. KA-03-MS-7002. Hence, the 1st respondent being the owner and 2nd respondent being the Insurer of the offending car are jointly and severally liable to pay compensation.
4. On service of notice, the respondent No.2 has entered its appearance through its learned counsel. Inspite of service of notice, respondent No.1 has not appeared before the court and hence, he was placed exparte.
5. The 2nd respondent in its objection statement has denied all the petition averments and contended that the petition itself is not maintainable either on facts or law. The 2nd respondent has denied the age, income, occupation and medical expenses spent by the petitioner. The respondent No.2 has denied the alleged negligence of the driver of the car and contended that the accident occurred due to negligence of the petitioner himself. The 2nd respondent has admitted the issuance of policy in respect of the offending vehicle and contended that its liability is subject to the terms and conditions of the policy issued in favour of owner of the car. It has contended that the driver of the car was not holding valid D.L at the time of accident. It has further contended that the compensation and interest claimed by the petitioner are SCH-21 4 MVC-446/2020 excessive and exorbitant. Hence on all these grounds, it has sought for dismissal of the petition.
6. Based on the pleadings, following issues are framed:-
ISSUES
1. Whether the petitioner proves that on 27.11.2019 at about 9.00 a.m., while petitioner was riding the motor cycle bearing Reg. No. KA-03-JV-0925, in front of JSS college, near BDA complex, outer ring road, Bengaluru, the driver of car bearing Reg. No. KA-03-MS-7002 by driving it in a rash and negligent manner, dashed the motor cycle of the petitioner, caused the accident and as a result, petitioner sustained injuries as alleged by him?
2. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
3. What order or award?
7. In order to prove the case, the petitioner got examined himself as PW.1 and two witnesses as PW.2 and 3 and got marked 20 documents as per Ex.P.1 to 20. On the other hand, respondent No.2 has not led its evidence.
8. Heard the arguments.
9. My findings on the above issues 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:
SCH-21 5 MVC-446/2020
REASONS
10. Issue No.1: It is the case of the petitioner that on 27.11.2019 at about 9.00 a.m., while he was riding the motor cycle bearing Reg. No. KA-03-JV-0925, in front of JSS college, near BDA complex, outer ring road, Bengaluru, the driver of car bearing Reg. No. KA-03-MS-7002 by driving it in a rash and negligent manner, dashed his motor cycle, caused the accident and as a result, petitioner sustained injuries. The petitioner in order to prove his case, got examined himself as PW.1 and reiterated the averments of the petition and got marked F.I.R, F.I.S, Spot Mahazar, Sketch, IMV report, Wound certificate and Charge sheet as per Ex.P1 to 6 and 10.
11. The accident said to have occurred on 27.11.2019 at 9.00 a.m. and FIS was lodged on 28.11.2019 at 10.30 a.m. by the petitioner himself narrating the manner of accident caused by the offending car bearing Reg. No.KA-03-MS-7002. The involvement of the offending car is not specifically denied by the 2nd respondent. The IMV report produced at Ex.P5 discloses the damages caused to both the vehicles involved in the accident. It also shows the involvement of the offending car in the accident. The 2nd respondent has denied the negligence by the driver of the offending car. The sketch produced by the petitioner at Ex.P4 shows that the offending car moved his vehicle to the extreme left side and dashed the petitioner's motor cycle. It further shows that the petitioner was proceeding in his motor cycle on the extreme left side of the road. The mahazar and sketch substantiates the case of the petitioner as to the manner of accident as alleged by the SCH-21 6 MVC-446/2020 petitioner. Therefore, there is no reason to disbelieve the evidence of PW.1 with regard to the accident. After the investigation, the Investigating Officer has filed charge sheet against the driver of the car bearing Reg. No.KA-03-MS-7002 concluding that the accident was occurred only due to his negligence. There is no reason to take a different view. Therefore, I hold that the accident was occurred only due to the rash and negligent act of driver of the offending car bearing Reg. No.KA-03-MS-7002. Hence, I answer Issue No.1 in the Affirmative.
12. Issue No.2: While answering issue No.1, I have already observed that the accident was occurred due to rash and negligent driving of driver of car bearing Reg. No. KA-03- MS-7002. Therefore, the petitioner is entitled for the compensation.
13. LOSS OF FUTURE EARNINGS ON ACCOUNT OF PERMANENT DISABILITY:
The petitioner claims the future loss of income suffered by him due to the accidental injuries. But, the petitioner was working as quality assistant in Prateek Apparels Co., Ltd. Normally, the quality assistant has no physical work which requires hard labour which is likely to be affected by the injuries suffered to his leg. Therefore, the nature of injuries and disability if any suffered by the petitioner to his leg cannot affect his performance as a quality assistant. Apart from this, it is not the case of the petitioner that he lost the job due to his physical disability suffered from the accident. In the cross examination of the petitioner, he states that due SCH-21 7 MVC-446/2020 to lock down of his company, he lost the job. The specific portion of evidence of PW.1 is reproduced as hereunder:
"23.03.2020 ರಿಂದ ನಮ್ಮ ಕಂಪನಿ ಕೋವಿಡ್-19 ಸಂಬಂಧವಾಗಿ ಜುಲೈ 2020 ರ ವರೆಗೆ ಮುಚ್ಚ ಲ್ಪ ಟ್ಟಿ ತ್ತು . ಜುಲೈ 2020 ರ ನಂತರ ಶೇ. ಡ 30- 40 ರಂತೆ ಜನರನ್ನು ತೆಗೆದುಕೊಂಡು ನಮ್ಮ ಕಂಪನಿ ಕೆಲಸ ನಡೆಸುತ್ತಿತ್ತು . ನವೆಂಬರ್ 2019 ರಂದು ಅಪಘಾತ ಆಗಿತ್ತು ಎಂದರೆ ಸರಿ. ಅಕ್ಟೋಬರ್ 2019 ರ ಸಂಪೂರ್ಣ ಸಂಬಳ ನನಗೆ ಬಂದಿರುತ್ತದೆ. ನವೆಂವರ್ 2019, ಡಿಸೆಂಬರ್ 2019 ಹಾಗೂ ಫೆಬ್ರವರಿ 2020 ರ ಸಂಬಳ ನನಗೆ ಬಂದಿರುತ್ತದೆ. ಆದರೆ ಜನವರಿ 2020 ರ ಸಂಬಳ ನನಗೆ ಬಂದಿರುವುದಿಲ್ಲ . ಅದಾದ ನಂತರ ಕಂಪನಿ ಲಾಕ್ಡೌನ್ ನಿಂದ ಮುಚ್ಚಿ ತ್ತು ."
The above evidence makes it clear that petitioner was working even after the accident and drawing salary for a period of 3 months as earlier. The evidence also shows that he lost the job only due to lock down of company to which there is no nexus to the injury and disability suffered by him in the accident. In other words, even in the absence of the accident suffered by the petitioner, he would have lost the job due to lock down. Hence, the respondents are not liable to pay compensation to the loss of job of petitioner as the same was not occurred as a result of accident. Therefore, the petitioner is not entitled for compensation under this head.
14. PAIN AND SUFFERINGS:
As per wound certificate produced at Ex.P6, the petitioner has sustained fracture of both bones of left leg. The doctor has opined that the injury is grievous in nature. The Ex.P11 Discharge summary of Svastha Hospital reveals that the petitioner was treated as an inpatient in the said hospital from 28.11.2019 to 02.12.2019 and underwent surgery of closed reduction and internal fixation with IMIL nail to left SCH-21 8 MVC-446/2020 tibia on 28.11.2019. Ex.P12 reveals that once again the petitioner admitted to the said hospital from 20.01.2020 to 21.01.2020 and underwent kidney biopsy. As the petitioner underwent surgery and admitted to hospital twice, he might have suffered much pain and sufferings. Considering these aspects, I deem it just and proper to award Rs.60,000/-
towards pain and sufferings.
15. MEDICAL EXPENSES, ATTENDANT, CONVEYANCE, FOOD & NOURISHMENT AND OTHER INCIDENTAL EXPENSES & FUTURE MEDICAL EXPENSES:
The Ex.P11 discharge summary of Svastha Hospital reveals that the petitioner was treated as an inpatient in the said hospital from 28.11.2019 to 02.12.2019 and underwent surgery of of closed reduction and internal fixation with IMIL nail to left tibia on 28.11.2019 and the Ex.P12 reveals that once again, the petitioner admitted to the said hospital from 20.01.2020 to 21.01.2020 and underwent kidney biopsy. The petitioner has produced medical bills worth Rs.1,89,814/- as per Ex.P16. I have examined the medical bills. Since the petitioner was treated as inpatient and undergone surgery, there are no reasons to disbelieve the amount spent by the petitioner to the tune of Rs.1,89,814/- and he is entitled for the same.
The doctor has deposed that the petitioner has to undergo one more surgery for removal of implant and the cost of surgery for removal of implants would be Rs.40,000/-. But the detailed estimation for arriving of the said amount is not given. Admittedly, the petitioner has undergone surgery and implant is insitu. Therefore, he requires to be operated.
SCH-21 9 MVC-446/2020 Hence, it is just and proper to award Rs.30,000/- towards the future medical expenses.
As the petitioner was treated as an inpatient for a period of 7 days, certainly he might have spent amount towards conveyance, attendant charges, nourishing food and other incidental expenses and also at the time of subsequent follow up treatment. Considering these aspects, I deem it proper to award Rs.7,000/- under this head. Hence, in all the petitioner is entitled for Rs.2,19,814/- (Rs.1,89,814+30,000+7,000).
16. LOSS OF INCOME DURING LAID UP PERIOD:
According to the petitioner, he was working as Quality Assistant at Prateek Appreles Co., Ltd., and was earning Rs.25,000/- p.m. During the cross examination of petitioner, he has deposed that he has not obtained the salary for the month of January 2020. The petitioner has produced his Bank statement at Ex.P15, which reveals that he has not obtained salary for the month of January 2020. As this tribunal has already observed above, that the petitioner lost the job due to lockdown of his company and not due to injuries sustained by him in the accident. Considering these aspects, petitioner is entitled for the income for the month of January 2020 @ Rs.22,000/-. Hence, petitioner is entitled for the compensation of Rs.22,000/- under the head loss of income during the laid up period.
17. LOSS OF AMENITIES IN LIFE/LIFE COMFORTS AND EXPECTANCY OF LIFE:
Petitioner has produced Ex.P.13 driving licence which shows his date of birth as 10.09.1970. Considering the same, SCH-21 10 MVC-446/2020 petitioner was aged 49 years at the time accident. Though petitioner is not entitled for loss of future income, PW.2 doctor has deposed that petitioner sustained spiral fracture distal one third left Tibia with Proximal one third fibula fracture and the discharge summary of Svastha hospital produced at Ex.P11 reveals that petitioner was treated as inpatient in the said hospital from 28.11.2019 to 02.12.2019 and he was operated with closed reduction and internal fixation with IMIL nail left tibia. Ex.P12 shows that again he was admitted to the said hospital on 20.01.2020 and discharged on 21.01.2020. The doctor has assessed 39% disability to the left lower limb of the petitioner.
Petitioner is aged 49 years. He has a long life to lead. It may affect many of his daily activities including riding the motor bike, standing, walking, climbing stairs and other activities which requires the assistance of the leg. Since petitioner is aged only 49 years, this would affect his performance and other amenities. Having regard to these exceptional circumstances, I deem it just and proper to award Rs.1,00,000/- towards loss of amenities in life/life comforts and expectancy of life.
Thus in all, the petitioner entitled for the compensation as here under:
Sl.
Head of Compensation Amount
No.
1. Loss of future earnings due to Rs. Nil.
disability
2. Pain and Sufferings Rs. 60,000.00
SCH-21 11 MVC-446/2020
3. Medical expenses Rs. 1,89,814.00
4. Future Medical expenses Rs. 30,000.00
5. Conveyance, food and Rs. 7,000.00
nourishment, attendant charges
and other incidental expenses.
6. Loss of income during laid up Rs. 22,000.00
period
7. Loss of amenities in life/Life Rs. 1,00,000.00
comforts and expectancy of life
Total Rs. 4,08,814.00
In total, the petitioner is entitled for compensation of Rs.4,08,814/-.
18. Petitioner is claiming interest at 9% on the compensation amount. The respondent No.2 has denied the same. Our Hon'ble High Court in the case rendered in Vijay Ishwar Jadhav and others Vs Ulrich Belchior Fernandes and another (MFA.No.100090/2014 C/W MFA.No.25107/2013 dated 07.03.2018), has held that in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Sec.34 of C.P.C and awarded interest @ 6% p.a. Considering the aforesaid decision, I deem it proper to award interest at 6% per annum on the above compensation amount excluding the future medical expenses of Rs.30,000/-.
19. Liability: Regarding fixation of liability is concerned, I have already observed that, accident was taken place due to the negligence on the part of the driver of the car bearing Reg. No. KS-03-MS-7002. It is not in dispute that 1st respondent is the owner of the offending car. The respondent No.2 has not proved the breach of any of the policy SCH-21 12 MVC-446/2020 conditions. Hence, 2nd respondent being the insurer and 1 st respondent being the owner of the offending car are jointly and severally liable to pay the compensation. The 2 nd respondent being the insurer shall indemnify the 1 st respondent in payment of compensation amount. Accordingly, I answer Issue No.2 partly in the Affirmative.
20. Issue No.3: In view of my findings on issues No.1 and 2, I pass the following:
ORDER The petition is allowed in part with cost.
The petitioner is entitled for compensation of Rs.4,08,814/-(Rupees Four lakhs eight thousand eight hundred and fourteen only) with interest at the rate of 6% per annum on Rs.3,78,814/-(excluding future expenses of Rs.30,000) from the date of petition till its realisation.
The respondents No.1 & 2 being the owner and insurer of the offending vehicle are liable to pay the compensation. The liability to pay the compensation is joint and several between the respondents. But, respondent No.2 shall indemnify the respondent No.1 and shall deposit the compensation amount within 30 days from the date of this order.
On deposit of the compensation amount, 50% shall be released in the share of the petitioner and remaining 50% of the share amount shall be deposited in the name of petitioner for a period of 3 years in any nationalized bank with liberty to draw the periodical interest.
SCH-21 13 MVC-446/2020 Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court dated this the 8th day of October 2021) (VANI A. SHETTY) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.
ANNEXURES Witnesses examined on behalf of the petitioner:
P.W.1 : Janardhan S. P.W.2 : Dr. Nagaraj B.N. P.W.3 : Muniraju
Documents marked on behalf of the petitioner:
Ex.P.1 FIR Ex.P.2 First Information Statement Ex.P.3 Spot Mahazar Ex.P.4 Sketch Ex.P.5 IMV Report Ex.P.6 Wound Certificate Ex.P.7 133 IMV Notice Ex.P.8 Reply Ex.P.9 Vehicle release letter Ex.P.10 Charge Sheet Ex.P.11 & 12 Discharge Summaries Ex.P.13 N/c. of DL Ex.P.14 N/c. Of ID card of company Ex.P.15 Canara Bank statement Ex.P.16 Medical bills SCH-21 14 MVC-446/2020 Ex.P.17 Clinical note Ex.P.18 X-ray Ex.P.19 Authorization letter Ex.P.20 Inpatient record
Witnesses examined on behalf of the respondents: Nil.
Documents marked on behalf of the respondents: Nil.
(VANI A. SHETTY) XVII Addl. Judge, Court of Small Causes & Member MACT, Mayo Hall Unit, Bengaluru.
********** SCH-21 15 MVC-446/2020