Bangalore District Court
Smt. Vijaya C vs United India Insurance Co. Ltd on 20 February, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 20th day of February 2015
M.V.C.No.1841/2013
Petitioner Smt. Vijaya C.,
W/o Suresh,
Aged about 35 years,
No.E-173 2nd B Cross,
Rajivgandinagar, Kebbehalla,
Bangalore North,
Bangalore - 560 091.
(Sri B.K. Vasudevamurthy, Advocate)
V/s
Respondents 1. United India Insurance Co. Ltd.,
Regional Office, 5th Floor,
Krishi Bhavan, Hudson Circle,
Bangalore.
Policy No.0716003112P300166596
(Sri H.S. Nagarajaiah, Advocate)
2. PJB Enterprises Pvt. Ltd.,
No.143, Rathna Building,
4th Floor, Richmond road,
Bangalore - 560 025.
(Sri G.S. Prasanna Kumar, Advocate)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for 2 (SCCH-8) M.V.C.No.1841/2013 seeking compensation of Rs.10,00,000/- for the injuries sustained by her in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in her claim petition has alleged that, on 15- 12-2012 at about 8.35 a.m., she was crossing the road in front of big bazaar, at Badrappa Layout and she was fully crossed the said road about to step on to the foot path in front of the Big bazaar carefully and cautiously by observing all traffic rules and regulations, the driver of the jeep bearing No.KA-03-ML-1914 has drove the same in a rash and negligent manner and took the said vehicle suddenly full right turn and dashed against her, due to the said impact she was fell down and sustained grievous injuries. So, immediately she was shifted to Baptist Hospital, wherein she took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy working as a tailor at Gokuldas and getting monthly income of Rs.6,800/-, due to the accidental injuries she could not do the work as before. The accident in question was taken place on the rash and negligent driving of the jeep driver. Thereby, Hebbal Traffic Police have registered the case against the jeep driver in their police station Crime No.155/2012 for the offences punishable u/s 279 and 337 of IPC. The respondent No.1 being the insurer and 3 (SCCH-8) M.V.C.No.1841/2013 respondent No.2 being the owner are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondents were appeared through their respective counsel, but inspite of sufficient time the respondent No.2 being the owner did not file his written statement. So, the written statement of the respondent No.2 taken as not filed. The respondent No.1 being the insurer has filed its written statement in which has alleged that the claim petition filed by the petitioner is not maintainable either in law or on facts and he has denied the averments made in column No.1 to 14(a) of the claim petition and he has also denied that the petitioner was the pedestrian was crossing the road, the driver of the offending vehicle has drove the same in a rash and negligent manner and dashed against the petitioner, as a result she was fell down and sustained grievous injuries and took the treatment as an inpatient by spending huge amount, but he has admitted about the issuance of the policy in respect of the offending vehicle in favour of the respondent No.2 and policy is valid from 03-07-2012 to 02-07-2013 and its liability subject to terms and conditions of the policy and he has alleged that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same and the petitioner who was unmindful of the traffic and 4 (SCCH-8) M.V.C.No.1841/2013 movement of vehicles on road, without looking on either sides of the road and confirming reasonable safety crossed the road at a place where there was no zebra crossing. So, the accident was taken place 4 feet away from the foot path as per the accident sketch that itself is clear that the accident in question was taken place on her own negligence and he has denied the age, avocation and income of the petitioner and he has alleged that either the owner of the offending vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of MV Act in furnishing better particulars and prays for reject the claim petition.
5. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioner proves that she has sustained grievous injuries as mentioned in wound certificate, in a road traffic accident on 15-12- 2012 at about 8.35 a.m., in front of Big bazaar, Badrappa Layout, Hebbala ring road, due to the rash and negligent driving of the driver of the Jeep bearing registration No.KA-03-ML-1914?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
5 (SCCH-8) M.V.C.No.1841/2013
6. The petitioner in order to prove her case has examined herself as PW1 and got marked the documents as Ex.P1 to Ex.P19 and she has examined two more witness on her behalf as PW2 and PW3 and got marked the documents as Ex.P20 and Ex.P21. The respondent No.1 in order to prove its defence has examined its Administrative Officer as RW1 and got marked the documents as Ex.R1 to Ex.R3.
7. Heard arguments on both side.
8. My finding on the above issues are as under:
Issue No.1: Affirmative Issue No.2: Partly affirmative Issue No.3: As per the final order for the following.
REASONS
9. Issue No.1:
The petitioner being said to be the injured has approached the court on the ground that on 15-12-2012 at about 8.35 a.m., when she was crossing the road, the driver of the jeep has drove the same in a rash and negligent manner and dashed against the petitioner, as a result she was fell down and sustained grievous injuries and took the treatment as an inpatient by spending huge amount. Thereby, she has filed the instant claim petition against the respondents.
6 (SCCH-8) M.V.C.No.1841/2013
10. The petitioner in order to prove her case has filed her affidavit as her chief examination as PW1, in which she has stated that on 15-12-2012 at about 8.35 a.m., she being the pedestrian was crossing the road near Big bazaar, at Badrappa Layout, carefully and cautiously by observing all traffic rules and regulations and she had almost crossed the road and she was about to step on the foot path of road median, the driver of the jeep bearing No.KA-03-ML-1914 has drove the same in a rash and negligent manner and dashed against her, as a result she was fell down and sustained grievous injuries. So, immediately she was shifted to Baptist Hospital, wherein she took the treatment as an inpatient by spending huge amount. The accident in question was taken place on the rash and negligent driving of the jeep driver. Thereby, Hebbal Traffic Police have registered the case against the jeep driver in their police station Crime No.155/2012 for the offences punishable u/s 279 and 337 of IPC. The PW1 in his cross examination has admitted that as on the date of the alleged accident she was proceeding to attend the work and there was no zebra cross where she was crossing the road and she has denied that only after crossing the road, the jeep was came on the said road, but she has stated while crossing the road, the jeep driver was came and dashed against 7 (SCCH-8) M.V.C.No.1841/2013 her and she has denied that she was fell down while putting her leg on the foot path and sustained the injuries.
11. The PW3 who is the then PSI in his evidence has stated that on 15-12-2012 he has received the complaint and visited the spot and drawn the panchanama and recorded the statement of the witnesses and filed the charge sheet against the offending vehicle driver on the ground that the accident in question was taken place on his negligence, but due to mistake he could not mentioned the vehicle number in the charge sheet. The PW3 in his cross examination has admitted that the petitioner's brother has filed the complaint and after receipt of the complaint he went to the spot and drawn the panchanama and he has not stated in the panchanama about seizing of the offending vehicle, but he has stated that same is mentioned in the sketch and he has denied that the alleged jeep was not caused the accident, he has filed the false charge sheet against the offending vehicle driver.
12. The petitioner in support of her oral evidence has produced the documents marked as Ex.P1 to Ex.P21. Ex.P2 is the information filed by one Nagaraj who is none other than the brother of the petitioner in which he has stated that on 15-12- 2012, he was standing in front of Big bazaar and his sister was crossing the road, the driver of the jeep was came from BEL 8 (SCCH-8) M.V.C.No.1841/2013 signal with high speed in a rash and negligent manner and dashed against his sister, as a result she was fell down and sustained injuries on her abdomen, head and both legs. So immediately she was shifted his sister through ambulance with the assistance of the public and traffic police and got admitted at Baptist Hospital. So based on the information Hebbal Traffic Police have registered the case against the jeep driver in their police station Crime No.155/2012 for the offences punishable u/s 279 and 337 of IPC. The learned counsel for the respondent No.1 has cross examined the PW1, but nothing is elicited to disbelieve her evidence and he has also suggested the PW1 that she was fell down while putting her leg on the foot path for which she has denied the same, even the respondent No.1 has not placed any materials on record to show that the petitioner has sustained the injuries, when she was putting her leg on the foot path from the tar road, if that is so the matter would have been different, but nothing is placed on record to show that the petitioner has sustained the injuries while putting her leg on the foot path from the tar road. So, the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P5 and Ex.P6 are the sketch and panchanama drawn by the I.O., clearly reflects that the jeep driver was proceeding towards Hebbal circle on the northern side of the road, but the reasons best known to him has took the jeep 9 (SCCH-8) M.V.C.No.1841/2013 towards southern side where the petitioner was crossing the road, so on his negligence the accident was occurred and the petitioner was fell down and sustained grievous injuries and moreover the accident was taken place just 4 feet away from the southern side. So, the Ex.P5 and Ex.P6 are clearly reflects that the accident in question was taken place on the rash and negligent driving of the jeep driver. The learned counsel for the respondent No.1 has suggested the PW1 while cross examination that she has crossed the road where there was no zebra cross for which she has admitted the same, but she has stated that the accident was not taken place either in the middle of the road nor in the 80% of the alleged road, as it was taken place almost when the petitioner was reached towards southern side of the foot path that itself is clear that the accident was occurred on the rash and negligent driving of the jeep driver. Ex.P4 is the wound certificate clearly reflects that the petitioner has sustained the injuries in a road traffic accident. Ex.P8 to Ex.P12 and Ex.P17 to Ex.P21 are clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained by her in a road traffic accident said to have been taken place on 15-12-2012. So, the documents marked as Ex.P1 to Ex.P12 and Ex.P17 to Ex.P21 are coupled with the oral evidence of PW1 and moreover the respondent 10 (SCCH-8) M.V.C.No.1841/2013 No.2 has not lead any rebuttal evidence to disprove the oral and documentary evidence of the petitioner. If at all the accident was not taken place on the rash and negligent driving of the jeep nothing is prevented to the first respondent to examine the jeep driver to show that the accident was not taken place on the rash and negligent driving of the jeep driver. On the other hand, the petitioner has proved her case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the jeep driver. Hence, I answer this issue in the affirmative.
13. Issue No.2:
The PW1 being the injured in her evidence has clearly stated that on 15-12-2012 at about 8.35 am, when she was crossing the road near Big bazaar, at Badrappa Layout, the driver of the jeep has drove the same in a rash and negligent manner and dashed against her, as a result she has sustained the following injuries;
1) Fracture of anterior wall of right acetabulum.
2) Fracture both ala of sacrum.
3) Fracture bilateral inferior and superior pubic rami.
4) Fracture of left pubic bone.
5) Fracture transverse process of L5 (Bilateral) and L1 and L2 left vertebra.
6) Fracture of right 8 to 11th ribs.
11 (SCCH-8) M.V.C.No.1841/2013
7) Injuries to pelvic region and urethral region.
8) Injuries to both legs.
14. So, she was shifted to Baptist Hospital, wherein she took the treatment as an inpatient for a period of 11 days by spending an amount of Rs.1,00,000/- towards medical and other allowances except ESI reimbursement. Prior to the accident she was working as a tailor cum lace cutter at Gokuldas and getting monthly income of Rs.6,800/-, due to the accidental injuries she could not do the same, as she is fully disabled to do any kind of work and she cannot lift even a small weight and cannot do any hard work and she getting severe frequent pain on her lower back side and she cannot sit for half an hour continuously. So, she has lost the income due to the accidental injuries. The PW1 in her cross examination has denied that she was not doing the work as alleged in the claim petition nor getting the monthly income of Rs.6,800/- and she has admitted that she has produced the documents to show that she was doing the work as alleged in the claim petition and getting monthly salary of Rs.6,800/-.
15. The PW2 being the Orthopaedic Surgeon at Bowring and Lady Curzon Hospital, in his evidence has stated that the 12 (SCCH-8) M.V.C.No.1841/2013 petitioner has met with an accident said to have been taken place on 15-12-2012, as she has sustained the following injuries;
1) Fracture of anterior wall of right acetabulum.
2) Fracture both ala of sacrum.
3) Fracture bilateral inferior and superior pubic rami.
4) Fracture transverse process of L5 (Bilateral) and L1 and L2 left vertebra.
5) Fracture of pubic bone.
6) Fracture of right 8 to 11th ribs.
16. So, she underwent emergency exploration and repair of vaginal laceration on 15-12-2012 and pelvic fractures were treated conservatively. So, due to the accidental injuries the petitioner is facing the difficulty in walking long distance, climb stairs and difficulty in squatting and sitting cross leg. So recently he has examined the petitioner and found that the petitioner has sustained 32% lower limb disability and whole body disability to an extent of 16%. The PW2 in his cross examination has admitted that initially he was not treated the petitioner and for the first time he has examined the petitioner to assess her disability. Based on the wound certificate, discharge summary, clinical and radiological examination and the petitioner was underwent operation relating to vaginal laceration, but he has admitted that there was no fracture and she was not underwent 13 (SCCH-8) M.V.C.No.1841/2013 any operation relating to fracture and he has denied that if the petitioner has undergone physiotherapy there is a chances of reducing disability, but he has admitted that he has not issued the disability certificate.
17. The PW1 being the injured in her evidence has clearly stated about the injuries sustained by her in the accident and also stated about the difficulties facing by her after the accident. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So, the evidence of the PW2 corroborate the evidence of the PW1. Ex.P4 is the wound certificate issued by the Bangalore Baptist Hospital, clearly reflects that the petitioner has sustained the following injuries;
Contusion pelvic with vaginal laceration with fracture of right acetabulum, sacrum, bilateral inferior and superior public rami, L5 transverse process, pubic bone and fracture of 8 to 11th ribs.
18. So, the above said injuries are grievous in nature. Ex.P8 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the Bangalore Baptist Hospital, wherein he took the treatment as an inpatient from 15- 12-2012 to 26-12-2012 for a period of 12 days. The petitioner 14 (SCCH-8) M.V.C.No.1841/2013 was shifted to ICU, as she was conscious oriented stated on IV antibiotics, received 1 pint of pack cells + 2 FFP transfusion, pack removed shifted to ward in stable condition. The petitioner has discharged with an advice to take bed rest for 3 weeks and follow up treatment. Ex.P10 to Ex.P12 are clearly reflects that the petitioner has took the treatment in connection of the injuries sustained by her in a road traffic accident. Ex.P20 and Ex.P21 are also clearly reflects that the petitioner has sustained the injuries as shown in the wound certificate. So considering the injuries sustained by the petitioner in a road traffic accident and the evidence of PW1 and PW2 as well as duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in her evidence has clearly stated that she has sustained the injuries in a road traffic accident said to have been taken place on 15-12-2012 and took the treatment as an inpatient for a period of 12 days. PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of the PW1 and PW2 and the injuries sustained by the petitioner as well as the duration of treatment 15 (SCCH-8) M.V.C.No.1841/2013 she would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.30,000/- for the above head, it will meet the ends of justice. Hence, Rs.30,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in her evidence has stated that prior to the accident she was hale and healthy by working as a tailor at Gokuldas and earning a sum of Rs.6,800/- per month, due to the accidental injuries she could not attend the work and the company has removed her from the service, so she has lost the income. The PW1 in her cross examination has admitted that she has undergone the surgery and the company manager has accepted her resignation. Ex.P13 to Ex.P16 are clear that the petitioner prior to the accident was working at Gokuldas Company by getting monthly salary of Rs.5,900/-, but she has not produced any document to show that she was drawing monthly salary of Rs.6,800/-. In the absence of the materials on record, it is very difficult to believe the income of the petitioner as alleged in the claim petition. So considering the age and skill of the petitioner and the present life condition, it is just and necessary to consider same monthly income of Rs.5,900/- it will meet the ends of justice. Ex.P4 is the wound certificate clearly reflects that the petitioner has sustained grievous injuries. Ex.P8
16 (SCCH-8) M.V.C.No.1841/2013 is the discharge card clearly reflects that she has sustained the grievous injuries and took the treatment as an inpatient for a period of 12 days. So, the petitioner might have lost income for a period of three months. So three months income comes to Rs.17,700/-. So Rs.17,700/- is granted for the above head.
c) Medical expenses The PW1 being the injured in her evidence has stated that she has sustained the injuries in a road traffic accident and got admitted to the Bangalore Baptist Hospital and there was a ESI facility for her hospitalization, even then she has spent Rs.1,00,000/- towards hospitalization, transportation, food and nourishment and the ESI has not paid the full amount which was spent by her for her treatment, but the reasons best known to her has not stated in her affidavit how much amount she has benefited under the ESI. However, she has produced the medical bills worth of Rs.28,241/- in all 46 medical bills, even the respondents have not placed any materials to show that the petitioner has reimbursed the entire amount involved in the medical bills, if that is so the matter would have been different. In the absence of the materials on record from the respondents side, it is clear that the ESI has not paid the medical bill amount as produced by the petitioner. So, the petitioner is entitled the 17 (SCCH-8) M.V.C.No.1841/2013 medical bills worth of Rs.28,241/-. Therefore, Rs.28,241/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in her evidence has clearly stated that she has sustained grievous injuries in a road traffic accident said to have been taken place on 15-12-2012 and took the treatment as an inpatient for a period of 12 days. The PW1 in her cross examination has denied that she was not underwent any operation, but she has stated that as on the date of the alleged accident, she was pregnant and she has sustained the injury on her abdomen, as a result blood was emerge. Ex.P8 is the discharge summary clearly reflects that the petitioner has underwent surgery about transfusion pack removed and she was shifted to ward. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated that the petitioner has underwent the surgery for emergency exploration and repair of vaginal laceration and pelvic fractures were treated conservatively and he has also stated about the complaints and disability of the petitioner after the accident According to him the petitioner has sustained 32% lower limb disability and whole body disability to an extent of 16%. The PW2 in his cross examination has admitted that the petitioner has not sustained any fractures nor undergone the surgery due to the fracture, but he has admitted
18 (SCCH-8) M.V.C.No.1841/2013 that the petitioner has undergone the surgery for vaginal laceration. So, considering the evidence of the PW1 and PW2 and the medical records and the injuries sustained by the petitioner and duration of treatment as well as her avocation, it is just and necessary to consider the disability of 10% of the whole body instead of 16%, it will meet the ends of justice. So, her income is already considered as Rs.5,900/- per month. Ex.P8 is the discharge summary clearly reflects that as on the date of the alleged accident her age was 35 years. The petitioner in her claim petition itself has clearly stated that as on the date of the alleged accident her age was 35 years. Therefore, her age is taken into consideration as 35 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., reported in 2009 ACJ 1298 the multiplier applicable is 16. So the loss of future earning is works out as under;
Rs.5,900X12X16X10/100=1,13,280/-.
Hence, the petitioner is entitled for Rs.1,13,280/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in her evidence has clearly stated that she has sustained the injuries in a road traffic
19 (SCCH-8) M.V.C.No.1841/2013 accident said to have been taken place on 15-12-2012 and took the treatment as an inpatient for a period of 12 days and she has also took the treatment as an outpatient. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So considering the evidence of PW1 and PW2 and duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.20,000/- for the above head, it will meet the ends of justice. So Rs.20,000/- is granted for the above head.
19. Thus the total award stands as follows:
1.Pain and suffering Rs. 30,000-00
2.Loss of income during laid up Rs. 17,700-00 period
3.Medical bills Rs. 28,241-00
4.Loss of future earning Rs. 1,13,280-00
5.Loss of amenities, Rs. 20,000-00 conveyance, food and nourishment, attendant charges etc. Total Rs. 2,09,221-00
20. The respondent No.1 being the insurer in its written statement has admitted about the issuance of the policy in respect of the offending vehicle in favour of the second respondent and its validity from 03-07-2012 to 02-07-2013. The accident was occurred on 15-12-2012. Ex.R2 is the policy copy clearly reflects that as on the date of the alleged accident the 20 (SCCH-8) M.V.C.No.1841/2013 policy was in existence. So one thing is clear that as on the date of the alleged accident the policy was in existence.
21. The respondent No.1 has taken up the contention that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same. But the reasons best known to the respondent No.1 has not placed any materials on record to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and Ex.P3 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all the driver of the offending vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. So one thing is clear that as on the date of the alleged accident the offending vehicle driver was holding valid and effective driving licence.
21 (SCCH-8) M.V.C.No.1841/2013
22. The learned counsel for the respondent No.1 while canvassing his arguments has submitted that the claimant was trying to cross the road where there was no zebra cross to cross the road. So, there is a contributory negligence on the part of the petitioner for the cause of accident and the petitioner has not examined the treated doctor and the evidence of the doctor is very vague and artificial and his evidence cannot looked into. It is an admitted fact that the learned counsel for the respondent No.1 while cross examination of the PW1 has suggested that while putting her leg on the foot path, she was fell down and sustained the injuries for which she has denied the same, that itself is clear that the accident was not taken place either in the middle of the road nor in the 80% of the road, as the Ex.P5 is the panchanama drawn by the I.O., clearly reflects that the petitioner almost has reached towards southern side, at that time the accident was taken place. However, the PW1 in her cross examination has admitted that she was crossed the road where there was no zebra cross. The learned counsel for the respondent No.1 has drawn the court attention on the decision reported in ILR 2004 KAR 1104 in between Koosappa Poojari vs. K. Sadabba and others reads like thus;
MOTOR VEHICLES ACT 1988 (59/88) - SECTION 173 (1) - CONTRIBUTORY NEGLIGENCE - Claimant 22 (SCCH-8) M.V.C.No.1841/2013 had crossed the road where he was not supposed to cross - HELD - Certain degree of contributory negligence will have to be attributed to him - If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident - Pedestrian has to share the negligence along with the driver.
23. On careful perusal of the above said decision, in the said decision his lordship held that if a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident and the pedestrian has to share the negligence along with the driver.
24. In the instant case the petitioner in her cross examination has admitted that she was crossed the road where there was no zebra cross and the accident was taken place just 4 feet away from the southern side, but there is a contributory negligence on the part of the petitioner, as the petitioner was crossed the road where there was no zebra cross. So, the decision as relied by the learned counsel for the respondent No.1 is directly applicable to the case on hand. So, it is just and necessary to consider 20% of the contributory negligence on the part of the petitioner and the jeep driver 23 (SCCH-8) M.V.C.No.1841/2013 has contributed the negligence to an extent of 80% for the cause of accident.
25. The learned counsel for the respondent No.1 has drawn the court attention on the decision reported in ILR 1998 KAR 134 in between Sri Narasimhaiah vs. The General Manager and another. On careful perusal of the above said decision, the principles laid down in the said decision are applicable to the case on hand.
26. The learned counsel for the respondent No.1 has drawn the court attention on the decision reported in 2005 ACJ 344 in between M. Jayanna vs. K. Radha Krishna Reddy and another. On careful perusal of the above said decision, in the said decision his lordship held that if the doctor is a stock witness, the matter may be referred to Medical Council for necessary action. If the evidence of the doctor is very vague and artificial relating to the nature of injuries without examining the treated doctor. In the instant case the PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and difficulties of the petitioner due to the accidental injuries. So, I do respect to the decision relied by the learned counsel for the respondent No.1, but the facts and circumstances of the present case and 24 (SCCH-8) M.V.C.No.1841/2013 the decision relied by the learned counsel for the respondent No.1 are different.
27. The learned counsel for the petitioner while canvassing his arguments has submitted that the petitioner has not examined the treated doctor and the PW2 being the Orthopaedic Surgeon has clearly stated that he has examined the petitioner only for assessment of the disability of the petitioner, so his evidence cannot be rejected only on the ground that he is not the treated doctor and the said counsel has drawn the court attention on the decision reported in 2003 ACJ 491 in between Shanta Rathod and another vs. Mahantesh. On careful perusal of the above said decision, in the said decision the injured has not examined the treated doctor, but he has examined the doctor who assessed the disability. So, their lordship held that no case that none of the doctors who treated the injured were not availabe to give evidence, but the evidence of the doctor who gives such certificates on regular basis, without giving treatment, should be appreciated with caution. Therefore, the above said decision relied by the learned counsel for the petitioner is directly applicable to the case on hand.
25 (SCCH-8) M.V.C.No.1841/2013
28. So one thing is clear that as on the date of the alleged accident the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to an extent of 80%. But in view of the valid insurance policy the respondent No.2 alone is liable to pay the compensation to the petitioner to an extent of 80% with interest at the rate of 6% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.
29. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,09,221/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The petitioner has contributed the negligence to an extent of 20% for the cause of accident and the jeep driver has contributed the negligence to an extent of 80% for the cause of accident. Therefore, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner to an 26 (SCCH-8) M.V.C.No.1841/2013 extent of 80%. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner to an extent of 80% with interest at the rate of 6% p.a. from the date of claim petition till its realization within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 20 th day of February 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
27 (SCCH-8) M.V.C.No.1841/2013 ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Smt. Vijaya C. PW2 Dr. S.A. Somashekar PW3 Sri C.A. Manjappa
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Complaint
Ex.P3 True copy of Charge sheet
Ex.P4 True copy of Wound certificate
Ex.P5 True copy of Sketch
Ex.P6 True copy of Spot panchanama
Ex.P7 True copy of IMV Report
Ex.P8 Discharge summary
Ex.P9 OPD Card copy
Ex.P10 46 Medical bills amounting to Rs.28,241/-
Ex.P11 22 Medical prescriptions
Ex.P12 Leave sanction letter
Ex.P13 to Pay slips for the month of July, August, October
Ex.P16 and November
Ex.P17 Bank statement
Ex.P18 Copy of Resignation letter
Ex.P19 Notarised attested true copy of the ESI Identity
Card
Ex.P20 Outpatient slip
Ex.P21 2 X-ray films
List of the witnesses examined on behalf of respondents:
RW1 Sri Hans Shivhare List of the documents marked on behalf of respondents:
Ex.R1 Authorization letter
Ex.R2 Policy copy
Ex.R3 True copy of Charge sheet
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.
28 (SCCH-8) M.V.C.No.1841/2013
29 (SCCH-8) M.V.C.No.1841/2013
Judgment pronounced in open court (vide separate judgment) with the following operative portion:
The petition filed under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,09,221/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The petitioner has contributed the negligence to an extent of 20% for the cause of accident and the jeep driver has contributed the negligence to an extent of 80% for the cause of accident. Therefore, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner to an extent of 80%. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner to an extent of 80% with interest at the rate of 6% p.a. from the date of claim petition till its realization within a period of 30 days from the date of this order.
30 (SCCH-8) M.V.C.No.1841/2013 On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
XII Addl. Small Causes Judge, MACT, Bangalore 31 (SCCH-8) M.V.C.No.1841/2013 SCCH No.8 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL BANGALORE METROPOLIS M.V.C.No.1841/2013 Petitioner Smt. Vijaya C., W/o Suresh, Aged about 35 years, No.E-173 2nd B Cross, Rajivgandinagar, Kebbehalla, Bangalore North, Bangalore - 560 091.
(Sri B.K. Vasudevamurthy, Advocate) V/s Respondents 1. United India Insurance Co. Ltd., Regional Office, 5th Floor, Krishi Bhavan, Hudson Circle, Bangalore.
Policy No.0716003112P300166596 (Sri H.S. Nagarajaiah, Advocate)
2. PJB Enterprises Pvt. Ltd., No.143, Rathna Building, 4th Floor, Richmond road, Bangalore - 560 025.
(Sri G.S. Prasanna Kumar, Advocate) WHEREAS, this petition filed on by the petitioner above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs. for the injuries sustained by the petitioner in a motor accident caused by a vehicle bearing No. 32 (SCCH-8) M.V.C.No.1841/2013 WHEREAS, this claim petition coming up before Shri P.J.Somashekar, XII Addl.Judge, Member, MACT, Bangalore, in the presence of Shri advocate for the petitioner and of Shri , Advocate for respondent.
The claim petition is decreed as under:
The petition filed under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,09,221/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The petitioner has contributed the negligence to an extent of 20% for the cause of accident and the jeep driver has contributed the negligence to an extent of 80% for the cause of accident. Therefore, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner to an extent of 80%. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner to an extent of 80% with interest at the rate of 6% p.a. from the date of claim petition till its realization within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of her
33 (SCCH-8) M.V.C.No.1841/2013 choice for a period of three years and the remaining 60% shall be released to her by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on her deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this the day of February 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: BANGALORE.
By the Petitioner By the
Respondent
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,
METROPOLITAN AREA: BANGALORE.