Bangalore District Court
Mr.Sathyprasad vs The Manager on 29 July, 2016
BEFORE VII ADDL. JUDGE & XXXII ACMM
Court of Small Causes, Bangalore, (SCCH-3)
DATED THIS THE 29TH JULY 2016
PRESENT:
Smt.GOMATI RAGHAVENDRA
LL.M, D.I.P.R, D.C.L
VII Addl. Judge & XXXII ACMM,
Court of Small Causes, Bengaluru.
M.V.C.No.4488/2012
Petitioner Mr.Sathyprasad,
S/o.Shanmugam.P.,
Aged about 32 years,
Residing at No.36 'Perumal Nilyam',
ST Michael Palyam,
New Thippasandra Post,
Bengaluru-75.
(Shri.Mohammed Shariff, Advocate)
V/s
Respondents 1. The Manager,
The United India Insurance Co., Ltd.,
T.P.Hub, Krushi Bhavan Building,
6th Floor, Hudson Circle,
Bengaluru-01.
Policy
No.240300/31/11/02/00006578
Valid from: 27.12.2011 to 26.12.2012.
(Sri.S.R.Murthy, Advocate)
2. The MD VRL Logistics Ltd.,
REGD & ADMN Office,
Bengaluru Road, Varur, Hubli,
District: Dharward-581207.
SCCH-3 2 MVC.No.4488/2012
(Sri.Aravind.M.Neglur, Advocate)
3. Sri.Shaik Shavali.S.,
S/o.S.Allabakash,
No.4/372, Sreeramulapeta,
Tadipatri, Anantapur, A.P.
(Owner of lorry bearing Reg.No.AP-02-
W-1564).
(Exparte)
4. Branch Office,
Shriram General Insurance Company
Ltd., Branch Manager,
No.302, 3rd Floor, S.S.Corner
Complex, Opp.Bowring Hospital,
Shivajinagar,
Bengaluru-560 001.
Policy No.1003/31/121530603.
(Sri.K.Prakash, Advocate)
JUDGMENT
This is a petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.15,00,000/- for the injuries sustained by him in a road traffic accident.
2. The case of the petitioner in brief is an under:
That on 30.6.2012 at about 5.15 a.m., petitioner was travelling in VRL Volvo bus bearing registration SCCH-3 3 MVC.No.4488/2012 No.KA-25-6423, when he reached near Loluru cross, Singanamala Mandal, Anantapur District, Andhra Pradesh, suddenly the driver of the said bus drove the same at a very high speed in a rash and negligent manner dashed against the lorry bearing registration No.AP-02-W-1564. On account of the tremendous impact the petitioner sustained grievous injuries. Immediately, he was shifted to nearby hospital for first aid treatment and later on he was shifted to Hosmat hospital, Bengaluru and spent a lot of money for the treatment.
3. Prior to the accident he was working as Incident Manager at AT & T Co. Hyderabad and was drawing salary of Rs.30,000/-. Due to the injuries he could not do the work as earlier. The accident in question taken place on account of rash and negligent driving of the driver of the Volvo bus. Thereby Singanamala police have registered the case in cr.No.65/2012 for the offences punishable U/s 279, 337 and 304(A) of IPC. The respondent Nos.1 & 2 being the insurer and owner of the bus and the respondent Nos. 3 & 4 being owner and the SCCH-3 4 MVC.No.4488/2012 insurer of the lorry are jointly and severally liable to pay compensation to the petitioner for the injuries sustained by him in a Road Traffic Accident. Hence, present petition.
4. Inspite of service of summons, respondent No.3 did not appear before the court and placed exparte. The respondent Nos. 1, 2 and 4 have appeared through their respective counsel and filed their written statements.
5. The respondent No.1 in its written statement has contended that the petition filed by the petitioner is not maintainable in law or on facts. Neither the owner nor the jurisdictional police have complied mandatory provisions u/s 134© and S. 158(6) of the M.V. Act in furnishing the better particulars. Further contended that the driver of the offending vehicle has no valid and effective driving licence to drive the said vehicle and the respondent No.2 knowing fully well that has entrusted his vehicle to the person who was not holding valid and effective driving licence. So, he has contravened the terms and conditions of the policy. Further contended SCCH-3 5 MVC.No.4488/2012 that the accident occurred on the rash and negligent driving of the driver of the lorry bearing registration No.AP-02-W-1564 who had parked the vehicle at a place which obstructed the free flow of traffic and no indicators were put at the relevant point of time. So, the driver of the lorry was solely responsible for the accident by denying the rest of the averments this respondent sought for dismissal of the petition.
6. The respondent No.2 being the owner of the bus has contended in his written statement that the petition filed by the petitioner is false, frivolous, vexatious and not maintainable either in law or on facts. Further he has stated that the bus was insured with the second respondent and it is valid as on the date of accident. Further contended that the he was driving the vehicle at moderate speed, observing all the traffic rules and regulations and there was a lorry ahead of bus. The driver of the bus in order to overtake the lorry was continuously honking and suddenly applied brake and all of a sudden brought the vehicle to a halt almost in the SCCH-3 6 MVC.No.4488/2012 middle of the road. The driver of the bus also applied the brake immediately to bring the vehicle to a halt to avoid clash with the lorry. However, there was a minor accident. Thus prays to dismiss the petition.
7. The respondent No.4 has contended in his written statement that the petition is not maintainable in law or on facts and he has admitted about the issuance of the policy in respect of vehicle bearing registration No.AP-02-W-1564 and it is valid from 4.2.2012 to 3.2.2013. Further contended that the accident occurred due to the sole negligence of the driver of the bus who was driving the same in a rash and negligent manner with high speed and without possessing valid and effective driving licence and came on the extreme left side of the road and dashed to the insured vehicle, which was parked on the extreme left side of the mud road. Neither the owner nor the jurisdictional police have complied mandatory provisions u/s 134© and S. 158(6) of the M.V. Act in furnishing better particulars and it prayed to dismiss the petition.
SCCH-3 7 MVC.No.4488/2012
8. On the basis of the aforesaid rival contentions and materials on record, the Tribunal has framed following:-
ISSUES
1. Whether the petitioner proves that, he sustained injuries on 30.06.2012 at about 5.15 a.m., due to the rash or negligent driving of the Bus bearing Reg.No.KA-25-B-
6423 by its driver Loluru Cross, Singanamala, Ananthpur District, Andra Pradesh?
2. Whether petitioner is entitled for compensation? If so, what is the quantum?
From whom payable?
3. What order or award?
9. The petitioner in order to prove the contention taken in the petition, examined himself as PW.1 and Specialist - HR Manager of AT & T Communication Services India Private Limited examined as PW2 Doctor is examined as PW3 and got marked the documents at Ex.P.1 to Ex.P.38. The Administrative Officer of respondent No.1 has been examined as RW1 and employee of the 4th respondent is examined as RW2 and got marked the documents as Ex.R1 to Ex.R4. SCCH-3 8 MVC.No.4488/2012
10. Heard arguments on both sides.
11. My finding on the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative
Issue No.3: As per the final order
for the following.
REASONS
12. ISSUE No.1: In order to substantiate the
petition contents, petitioner himself entered into the witness box and led his evidence as PW.1, who in his affidavit evidence has reiterated similar to the petition averments. It is the evidence of PW.1 that while he was traveling in the VRL Volvo Bus bearing Reg.No.KA-25-B- 6423 on 30.06.2012 at about 05.15 a.m., as a passenger, due to the rash and negligent driving of the driver of the bus the accident occurred within the Jurisdiction of Singanamala Police Station, who was driving the said bus at very high speed in a rash and negligent manner so as to endanger human life and dashed against Lorry bearing Reg.No.AP-02-W-1564. In support of such contentions, SCCH-3 9 MVC.No.4488/2012 petitioner has relied upon the documentary evidence such as FIR, Complaint and its translated copy, Wound Certificate, IMV Report, Discharge Summary at Ex.P.1 to Ex.P.6 respectively.
13. Respondent Nos.1 & 2 have categorically contended in their written statement that the driver of the bus was driving his bus on the date of accident cautiously and carefully by observing all the traffic rules and regulations and the accident in question has occurred due to the wrongful act of the driver of the lorry and as such at the instance of respondent No.2, the owner and insurer of the Lorry bearing Reg.No.AP-02-W- 1564 were impleaded as respondent No.3 & 4, who put their appearance before the court and respondent No.4, the insurer of the said lorry has categorically denied the rash and negligent driving on the part of the driver of the lorry has stated that the concerned police have registered crime against the driver of the Volvo bus and as such there is no question of rash driving on the part of the driver of the lorry.
SCCH-3 10 MVC.No.4488/2012
14. On the background of the aforesaid rival contentions of the respective parties, now the petitioner is burdened to prove the alleged rash and negligent driving on the part of the driver of the Volvo bus.
15. As stated above, PW.1 in support of the petition contents has relied upon the documents at Ex.P.1 to Ex.P.6. Perusal of Ex.P.1 & Ex.P.2, FIR and Complaint along with translated copy of complaint at Ex.P.2(a) one Kartham Sateesh Chandra has lodged complaint stating that he was traveling in a VRL Private Volvo Bus bearing Reg.No.KA-25-B-6423 from Hyderabad to Bengaluru City along with other passengers and the driver of the bus was driving in a very rash and negligent manner with high speed and dashed against lorry, which was parked the side of the road and as a consequence the front cabin of the bus was completely damaged and himself and other passengers, who were traveling in the said bus sustained bleeding and other injuries. The complaint came to be filed by the complainant on the same date of accident i.e., on 30.06.2012. Accordingly, the FIR came SCCH-3 11 MVC.No.4488/2012 to be registered by Singanamala Police as per Ex.P.1 against the driver of the Volvo bus for the offence punishable U/s.337 & 304(A) of IPC.
16. Perusal of Wound Certificate at Ex.P.3 issued by Andhra Pradesh Vaidya Vidhana Parishad, it discloses that the petitioner Sathyaprasad had been to the hospital on 30.06.2012 in respect of the injuries mentioned as Laceration above 5 x 1cm over the right parietal region, deformity of right knee and open fracture of right foot. Perusal of Ex.P.4 IMV Report issued by Motor vehicle inspector Anantapur, it shows that the accident was not occurred due to the mechanical defects of the vehicle. Perusal of Discharge Summary at Ex.P.5 issued by Hosmat Hospital, Bengaluru, reveals the history as RTA on 30.06.2012.
17. Even though respondent No.2 has impleaded respondent No.3 & 4, the owner and insurer of the Lorry bearing Reg.No.AP-02-W-1564, which according to respondent No.2, the accident was occurred due to the wrongful act of the driver of the lorry, but however, there SCCH-3 12 MVC.No.4488/2012 are no contra materials placed on record by the respondent Nos.1 & 2 to show that the present accident was occurred due to the rash and negligent driving on the part of the driver of the lorry.
18. The respondent No.1 has examined its Administrative Officer as RW1 and he has produced policy and sketch at Ex.R1 & Ex.R2.
19. Respondent No.4 has examined one witness as RW.2, who has reiterated similar to the written statement contents in his affidavit evidence and got marked the true copy of policy and Charge Sheet with memo at Ex.R.3 & Ex.R.4 respectively. Even perusal of Charge Sheet at Ex.R.4 filed by Singanamala Police Station, Anantapur, it discloses that the Charge Sheet filed against the driver of the VRL Volvo Bus bearing Reg.No.KA-25-B-6423 for the offence punishable U/s.337, 338. 304(A) of IPC, R/w.Sec.134(a) (b) of M.V.Act. The respondent No.2 has although examined its Administrative Officer as RW.1, but has failed to substantiate its defence with convincing materials. Although RW2 has been examined, but SCCH-3 13 MVC.No.4488/2012 nothing worth materials has been elicited in order to disbelieve the version of the witnesses on behalf of petitioner. The respondents have also cross examined PW.1 in this regard to show that the accident was not occurred due to the wrongful act of the driver of the Volvo Bus, but they have failed to elicit from the mouth of PW1 anything favourable to their case or to disbelieve the petition contents and the ocular evidence led on behalf of the petitioner coupled with the documentary evidence. So, considering the evidence relied upon both the parties and materials available on record, this tribunal is of the considered opinion that the accident in question was caused due to the rash and negligent driving on the part of the driver of the Volvo Bus and as such this Issue is answered in the Affirmative.
20. ISSUE No.2:
a)Pain and Suffering:
In order to prove this issue, PW1 Sathyaprasad has clearly stated in his evidence that he met with an accident on 30.6.2012 at about 5.15 a.m. when he was SCCH-3 14 MVC.No.4488/2012 traveling in VRL Volvo bus bearing registration No.KA-25- BN-6423, near Loluru cross, Singnamala Mandal, Anantapur District the driver of the VRL Volvo bus drove the said bus at a very high speed in a rash and negligent manner dashed against the lorry bearing registration No.AP-02-W-1564. Due to the said impact, he has sustained following injuries:-
1. Posterior dislocation right knee
2. CLW over anterior aspect of right knee
3. Compound III B disfranc fracture dislocation right foot He underwent wound debridement, K-wire fixation of lisfranc injury right foot, Knee spanning external fixation right knee on 30.6.2012, wound debridement and SSG right foot on 3.7.2012 and he was discharged on 9.7.2012 with an advise for follow-up treatment. He has produced wound certificate as per Ex.P3, which discloses the following injuries;
1)Laceration about 5x1 cms over the right parietal region
2)Deformity of the right knee SCCH-3 15 MVC.No.4488/2012
3)Open fracture of right foot The doctor is of the opinion that the injury Nos.1 & 2 are simple in nature and the injury No.3 is grievous in nature.
The doctor is examined on behalf of the petitioner as PW.3 by name Dr.Krishna Prasad has stated in his evidence that the petitioner has sustained following injuries;
Severe Crush injury-right foot-medial aspect- with exposure of bones and muscles and contamination Fracture dislocation of right foot with multiple metatarsal fractures with comminution--Type III compound fracture Dislocation-right knee He underwent reduction of right knee plus knee spanning external fixator, thorough wound debridement, multiple k-wire fixations--right foot and again he was admitted to Hosmat hospital on 29.7.2012 and he underwent thorough wound debridement-right foot and split skin grafting-medial aspect of the right foot was SCCH-3 16 MVC.No.4488/2012 done and on 30.7.2012 removal of external fixator and above knee POP right leg was done and he was discharged from the hospital on the same day.
The petitioner has produced wound certificate as per Ex.P3, which discloses the following injuries;
1)Laceration about 5x 1 cms over the right parietal region
2)Deformity of the right knee
3)Open fracture of right foot The doctor is of the opinion that the injury Nos.1 & 2 are simple in nature and the injury No.3 is grievous in nature. So, considering the evidence of PW1 & PW3 and the injuries sustained by the petitioner he would have suffered pain and agony for which, it is just and necessary to award compensation of Rs.50,000/- for the above head.
b) Loss of income during laid up period:
PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy and had joined the services of AT & T Communication Services India Private Limited, Wing B, 3rd floor, SCCH-3 17 MVC.No.4488/2012 Salapuria Softzone, Sarjapur Outer Ring Road, Bengaluru with effect from 10.8.2011 as a Network Operations Manager till 17.6.2012., Later his job was reclassified as Senior Technical Specialist at AT & T Global Business Services India Private Limited, Hyderabad with effect from 18.6.2012 and was earning Rs.1,03,314/- per month and he was unable to attend his job from 30.6.2012 till 11.1.2012 and he has availed 1.5 days of earned leave and 7 days of sick leave.
Thereafter on expiry of leave balance, he availed loss of pay leave from 11.7.2012 to 11.11.2012. He has produced Ex.P6 appointment letter, Ex.P7 is the transfer letter, Ex.P8 is the reclassified cadre letter, Ex.P9 is the annual payment slip, Ex.P11 is the leave sanction letter which reveals that the petitioner has taken the 1.5 days earned leave and 7 days of sick leave and thereafter loss of pay leave from 11.7.2012 to 11.11.2012 for a period of four months, Ex.P12 is the Saral form for having deducted the income tax for the assessment year 2012- 2013 and Ex.P15 is the PAN card, Ex.P16 is the driving SCCH-3 18 MVC.No.4488/2012 licence of the petitioner, Ex.P17 is the bank statement, Ex.P18 is the Degree certificate, Ex.P19 is the Master degree certificate. He has produced discharge summary at Ex.P5 which reveals that he was admitted on 30.6.2012 and discharged on 9.7.2012 for a period of 10 days.
The petitioner has examined PW2 Specialist-HR at AT & T Communication Services India Private Limited, Bengaluru on his behalf and PW3 has stated in his evidence that petitioner was working as Senior Technical Specialist at AT & T Global Business Services India Private Limited, Hyderabad and was earning Rs.1,04,314/- per month. On account of the said accident he was unable to attend the job from 30.6.2012 trill 11.11.2012. As such he has availed leave with loss of pay from 1.7.2012 to 11.11.2012. He has also availed 1.5 days of earned leave and 7 days of sick leave. So, considering the evidence of PW1 and PW2 and the documents placed before the court, it is clear that the petitioner has taken four months loss of pay salary and SCCH-3 19 MVC.No.4488/2012 1.5 days earned leave and 7 days of sick leave. As per Ex.P10, his gross salary per month is Rs.1,04,314/-. So, four months salary comes to Rs.4,17,256/-. Thus, the petitioner is entitled for Rs.4,17,256/- towards loss of income during treatment period.
c) Medical expenses PW1 being the injured in his evidence has stated that he has sustained the injuries in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.70,000/- towards medical expenses. But he has produced the Medical bills as per Ex.P.21 to the extent of Rs.40,858/-. The respondent has contended in the written statement that the medical bills produced by the petitioner have been reimbursed from his company. In this regard he has relied upon the decision reported in 2013(1) Kar.L.J.624 (DB) in between New India Assurance Company Limited, Bengaluru Vs. Manish Gupta and Another, reads like thus;
SCCH-3 20 MVC.No.4488/2012
Motor Vehicles Act, 1988, sections 166(1) (a) and 168--Medical expenses of injured---Claim for compensation in respect of---Where claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under the said policy, his claim for reimbursement "of same expenses once again by way of compensation under the Motor Vehicles Act, held, is not maintainable---However, if amount of medical expenses reimbursed to claimant under medical insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under head "Medical expenses" he is entitled to differential amount as compensation.
On perusal of the said decision, it is observed that if the amount of medical expenses reimbursed to claimant under medical insurance policy is found to be less than the amount of compensation admissible to him under the M.V. Act under head "Medical expenses" he is entitled to differential amount as compensation. SCCH-3 21 MVC.No.4488/2012
In the instant case petitioner has got reimbursement from his employer in part and remaining amount he has claimed for Rs.40,858/-. In the cross- examination nothing is elicited from the mouth of the PW1 that the petitioner has got entire reimbursement amount from his company. So, in the absence of the materials on record, the petitioner is entitled for Rs.40,858/- under the above head.
d) Loss of future earning:
PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and he took the treatment as inpatient for a period of 10 days. Due to the accidental injuries he cannot use Indian toilet, unable to sit for want of balance, due to contusions over the amputated and he is not able to do his manual work. He has produced the photographs at Ex.P20, which reveals that he has sustained injury to his right leg. Further he has stated that he rejoined the services from 121.11.2012 and worked till 15.2.2013. But as he was unable to SCCH-3 22 MVC.No.4488/2012 work, he resigned the services with effect from 15.2.2013. He has produced Detail statement of full and final settlement of employees at Ex.P14 and Ex.P23 is the resignation letter of the petitioner, appointment order at Ex.P24, Service certificate at Ex.P25, relieving letter at Ex.P26, appoint letter at Ex.P27, Salary structure at Ex.P28, resignation acceptance letter at Ex.P29, CTS appointment letter at Ex.P30 and resignation letter at Ex.P31, tenure confirmation letter at Ex.P32. In the cross-examination he has admitted that Company has not forced to submit his resignation as he was unable to do his job and the doctor has not issued any disability certificate to show that he is unable to do any job due to the accidental injuries.
PW2 being the Specialist-HR at AT & T Communication Services India Private Limited has stated in his evidence that the petitioner has rejoined the services of the company from 12.11.2012 and worked till 15.2.2013 as he was unable to work on medical grounds, he resigned the services with effective from 15.2.2013. In SCCH-3 23 MVC.No.4488/2012 his cross-examination he has admitted that the company has not requested or forced the petitioner to resign the job or to terminate and the petitioner willingly resigned from his job and he has also admitted that his company has never pointed out the petitioner as unfit for job.
On perusal of cross-examination of PW1 and PW2 it reveals that the petitioner willingly has resigned from his job and the company has not terminated as he was unfit for job. So, from this it is clear that the petitioner has willingly left his job and after the accident he has worked for three months.
At this juncture the counsel for the respondent No.1 has relied upon the ruling reported in ILR 2000 KAR 343 in between United India Insurance Co. Ltd., Vs. D.C.Rajanna and another, which reads like thus;
Motor Vehicles Act, 1988, --Section 168---Compensation for "Loss of future Earnings" can be awarded in case where it is shown that the claimant has, in fact suffered such a loss and not otherwise. SCCH-3 24 MVC.No.4488/2012 On perusal of the said decision it is observed that as a result of injury, the income was reduced or there was loss of earnings or he was removed from the service on account of disability or he is incapable of doing any work. In the absences of these factors, the question of awarding any compensation on the heading "Loss of future earnings" does not arise.
In the instant case the petitioner has not been removed from his service as admitted by PW1 and PW3 in their cross-examination and he has not produced any disability certificate to show that he was incapable to do any job. In the absence of these materials and as per the decision relied by the learned counsel for the respondent No.1 the petitioner is not entitled for the loss of future earning.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
PW1 being the injured in his evidence has clearly stated that he has sustained injuries in a road traffic accident and took the treatment as an inpatient and also SCCH-3 25 MVC.No.4488/2012 outpatient. PW3 being the Orthopaedic surgeon in his evidence has stated about the complaints and disabilities of the petitioner after the accident and also about the treatment taken by the petitioner as outpatient. So, considering the evidence of PW1 and PW3 and documents placed before the court, it is just and necessary to grant Rs.30,000/- for the above head. So, Rs.30,000/- is granted for the above head.
f) Future medication:
PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and he has to undergo plastic surgery (corrective surgery) to the right foot to prevent deformities and swellings at the cost of Rs.1,50,000/-. He has produced Ex.P33 issued by the Hosmat hospital which reveals that petitioner will require corrective surgery and fusion of his right foot.
PW3 being the orthopaedic surgeon in his evidence has stated that in view of the severely deformed right foot the petitioner is likely to develop painful arthritis of the SCCH-3 26 MVC.No.4488/2012 right foot, for which he will require corrective surgery and fusion which may costs of Rs.1,00,000/-. Relying on the opinion of the doctor and the nature of injuries sustained by petitioner and facts and circumstances of the case, it is just and necessary to grant Rs.25,000/- for the above head, it will meet the ends of justice. So, Rs.25,000/- is granted for the above head.
21. Thus the total award stands as follows:
1.Pain and suffering : Rs. 50,000-00
2.Loss of income during laid up : Rs.4,17,256-00 period
3.Medical bills : Rs. 40,858-00
4.Loss of future earning : Nil
5.Loss of amenities, conveyance, : Rs. 30,000-00 food and nourishment, attendant charges etc.
6.Future medical expenses : Rs. 25,000-00 TOTAL : Rs.5,63,114-00 Thus, the petitioner is entitled for the total compensation of Rs.5,63,114/- only.
22. Respondent No.1 being the insurer of the offending vehicle has contended in his written statement that the accident occurred due to the negligence of the lorry driver bearing No.AP-02-W-1564 as he parked the lorry in the middle of the road. Thereby he has impleaded SCCH-3 27 MVC.No.4488/2012 the respondent Nos. 3 & 4 the owner and the insurer of the lorry as parties to the proceedings.
23. Learned counsel for the respondent No.1 during the course of arguments has relied upon the ruling reported in 2009 ACJ 2600 in between Oriental Insurance Co.Ltd., Vs. Chennappa Shettigar and others, which reads like thus;
Motor Vehicles Act, 1988, section1 26 read with Karnataka Motor Vehicles Rules, 1989, rule 214 ---Negligence--
Composite negligence--Apportionment of interse liability--Stationary vehicle--
Tempo hit a parked truck in the mid of night and a passenger in Tempo sustained fatal injuries---No evidence that truck parked on the left side of the road in Municipal area had indicators to show that vehicle was parked; no blinking lights were kept on the truck or the parking lights were on as required under rule 214--No evidence that a person duly licensed to drive a truck was available in the driver's seat--
-Whether the Tribunal was justified in SCCH-3 28 MVC.No.4488/2012 mulcting liability on the drivers of both the vehicles equally---Held: yes.
24. On perusal of the said decision, it is observed that no evidence that truck parked on the left side of the road in municipal area had indicators to show that vehicle was parked; no blinking lights were kept on the truck or the parking lights were on.
25. In the instant case on perusal of Ex.P1 FIR and charge sheet at Ex.R4 nowhere discloses that the driver of the truck has not put the indicators or the blinking lights. On perusal of sketch marked at Ex.R2 reveals that the truck was parked by the side of the road. Though there is sufficient space towards right side, but the reasons best known to the driver of the bus he has not taken the bus towards right side and hit the truck. Moreover, after investigation I.O. has charge sheeted against the bus driver for the offences punishable u/s 279, 338 and 304(A) of IPC.
The said counsel has drawn the court attention on the decision reported in 2011 ACJ 2787 in between SCCH-3 29 MVC.No.4488/2012 Dr.Bhhaktaprahlad and another Vs. Nirwani and others, which reads like thus;
Motor Vehicles Act, 1988, section 122 and Central Motor Vehicles Rules 1989, rules 102 and 109--Negligence-- Contributory negligence--Motor cycle at fast speed hit against the truck parked on national highway in the night resulting in death of motor cyclist---
Police officer who witnessed the
accident lodged FIR disclosing that
truck was parked without any
indication and without switching on parking lights and accident occurred on account of rash and negligent driving of motor cycle---According to spot panchanama left side wheels of truck were parked on kacha portion and right side wheels on metalled portion of the road---There was sufficient space on remaining portion of metalled road for the deceased to drive his motor cycle-- insurance company did not examine truck driver to prove that he was not negligent in parking the truck and adverse inference is drawable against SCCH-3 30 MVC.No.4488/2012 it--Tribunal presumed that deceased being youngster might have dashed against parked truck under the influence of alcohol--Post-mortem report does not disclose any symptom of alcohol---Tribunal held that both the drivers were negligent in causing the accident and their respective blame being 10:90 for truck driver and motorcyclist---Appellate court modified the blame as 50:50.
26. Another decision reported in ILR 2003 KAR 409 in between P.Varalakshmi Reddy and others Vs. Karnataka State Road Transport Corporation.
On perusal of the said citations it is observed that in the sketch it is clear that the cyclist was at wrong to a considerable extent and consequent held that the deceased was guilty of contributory negligence.
27. In the instant case as per Ex.P2(A) complaint it is clear that the lorry was parked by the side of the road. Ex.R2 sketch also discloses that the lorry was parked by the side of the road, the driver of the bus himself hit the lorry. If the driver of the bus would have taken minimum SCCH-3 31 MVC.No.4488/2012 care to avoid the accident it would not have been done. Moreover prosecution papers nowhere reveals that the lorry was put off the parking lights or no indicators. From this it is clear that the driver of the bus drove the bus in a rash and negligent manner and dashed against the parked lorry.
28.Though the respondent No.1 has impleaded the respondent Nos. 3 & 4 but nothing is placed on record to substantiate his contention that there is contributory negligence on the part of the driver of the lorry. In the absence of the materials on record it is clears that the accident occurred due to the negligence of the driver of the Volve bus. Therefore, the petition against the respondent Nos. 3 & 4 deserves to be dismissed. So, the respondent Nos. 1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realization. Accordingly, Issue No.2 is answered Partly in the Affirmative.
SCCH-3 32 MVC.No.4488/2012
29. Issue No.3: In view of my finding on Issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under Sec.166 of the MV Act as against the respondent Nos. 3 & 4 is hereby dismissed.
The Petition filed by the petitioner under Sec.166 of MV Act, 1989 as against the respondent Nos. 1 & 2 is allowed in part.
Petitioner is entitled for Rs.5,63,114/- as compensation with costs and future interest at 8% p.a. from the date of petition till the date of deposit.
The respondents No.1 & 2 are jointly and severally liable to pay the compensation to the petitioner. However, the respondent No.1 insurance company has to indemnify the respondent No.2 owner of the offending vehicle and shall deposit the said amount within 30 days from the date of this award.SCCH-3 33 MVC.No.4488/2012
After deposit of the compensation amount, 40% of the same shall be kept in FD in the name of the petitioner in any nationalized or schedule bank for a period of five years and the remaining 60% amount shall be released to him through account payee cheque on proper indentification.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer online, corrected by me and then pronounced in the open court on this the 29th day of July 2016).
(GOMATI RAGHAVENDRA) VII Addl. Judge & XXXII ACMM, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri.Sathyaprasad PW2 Smt.Shonet Saldanha PW3 Dr.Krishan Prasad
List of the documents exhibited on behalf of petitioner:
Ex.P.1 Copy of FIR
Ex.P.2 Copy of Complaint
SCCH-3 34 MVC.No.4488/2012
Ex.P.2(a) Translated Copy of Complaint Ex.P.3 Copy of Wound Certificate Ex.P.4 Copy of IMV Report Ex.P.5 Discharge Summary Ex.P.6 Appointment Letter Ex.P.7 Transfer Order Ex.P.8 Joining Letter Ex.P.9 Salary Annexure Ex.P.10 Pay slip for the month of May 2012 Ex.P.11 Leave Sanction letter Ex.P.12 2012-13 Income Tax details Ex.P.13 2012-13 Income Tax details Ex.P.14 Details of full and final settlement of employees Ex.P.14( Payment Voucher
a) Ex.P.15 Notarized Copy of Pan Card Ex.P.16 Notarized Copy of driving license Ex.P.17 Statement of Account Ex.P.18 Notarized Copy of Certificate of B.Sc Ex.P.19 Notarized Copy of Certificate of MAC Ex.P.20 8 Photos with CD Ex.P.21 79 Medical bills Ex.P.22 24 Medical prescriptions Ex.P.23 E.Mail Copy of Resignation Letter Ex.P.24 Notarized Copy of Appointment Order Ex.P.25 Notarized Copy of Service Certificate Ex.P.26 Reliving Letter Ex.P.27 Appointment Letter Ex.P.28 Statement Ex.P.29 Reliving Letter Ex.P.30 Notarized Copy of CTS Appointment Letter Ex.P.31 Reliving Letter Ex.P.32 Reliving Certificate Ex.P.33 Certificate issued by Hosmat Hospital Ex.P.34 Authorization Letter Ex.P.35 Outpatient Record Ex.P.36 Inpatient Record Ex.P.37 Inpatient Record SCCH-3 35 MVC.No.4488/2012 Ex.P.38 16 X-ray films List of the witnesses examined on behalf of respondents:
RW.1 Smt.R.Vijayalakshmi RW.2 Sri.Yallappa.B.P
List of the documents marked on behalf of respondents:
Ex.R.1 Policy Copy
Ex.R.2 Sketch
Ex.R.3 True copy of Policy
Ex.R.4 Charge Sheet with memo
(GOMATI RAGHAVENDRA)
VII Addl. Judge & XXXII ACMM,
Bengaluru.