Bangalore District Court
C.Srujana vs L & T Insurance Company Ltd on 9 February, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 9th DAY OF FEBRUARY 2016.
MVC.No.3686/2012
****
PETITIONER: C.Srujana,
W/o C.Rajashekar Reddy,
Aged about 35 years,
R/at No.603,
15th Cross,
Opp: Last Bus Stop,
J.P.Nagar, 6th Phase,
Bengaluru-560 078.
Presently residing at
No.1942, 1st Sector,
H.S.R.Layout,
Bengaluru.
(By Pleader Asha.A.)
Vs.
RESPONDENTS: 1. L & T Insurance Company Ltd.,
Ground Floor,
Capital Towers,
180, Kadambakkam High Road,
Nungambakkam,
Chennai-600 036.
(Insurer of vehicle No.TN-28-AJ-2210)
Policy No.915105000617840000
Valid from 04-01-2012 to 03-01-2013.
2 MVC.3686/12
SCH-16
(By Pleader Geetha Raj.)
2. Mrs.Shalini.C,
W/o Ramesh.S,
Old No.26, New No.187,
Kalalvaninagar,
Mohanur Road,
Namakkal,
Tamil Nadu-637 001.
(Owner of vehicle No.TN-28-AJ-2210)
(Exparte)
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.20,00,000/-for the injuries sustained in a road traffic accident happened on 17-04-2012.
2. The case of the petitioner, as set-out in the petition is as follows:
The petitioner on 17-04-2012 at about 4.00 a.m., was sitting in a Car which were parked by the side of the road, near Kondreddyapalli Cross, Vemula, Y.S.R. District, Kadapa. At that time, one Lorry bearing Reg.No.TN-28-AJ-2210 came from behind in a rash and negligent manner and dashed against the Car. Due to the impact of said accident the 3 MVC.3686/12 SCH-16 petitioner fell down and sustained injuries all over the body. Immediately after the accident, the petitioner was shifted to Columbia Asia Hospital for treatment, wherein x-rays were taken and fractures were detected. It is stated that, the petitioner has spent more than Rs.5,00,000/- towards her medical expenses and she was doing business. In the said accident she has lost her income. It is stated that that, the Vemula Police have registered a case against the driver of the vehicle in Cr.No.16/12 for the offence punishable under Sec.279 and 338 of IPC. The respondents, being insurer and owner of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioner. On all these grounds, petitioner prayed for awarding the compensation of Rs.20,00,000/- to her.
3. In response to the notice, the respondent No.1 has appeared and not filed the written statement. The respondent No.2 inspite of service of notice, did not appear before this tribunal and hence he is placed as exparte.
4. In order to prove her case, the petitioner examined herself as P.W.1 and got marked Ex.P.1 to 6. The Doctor was examined as PW.2 and got marked Ex.P.7 and 8. 4 MVC.3686/12
SCH-16 The Medical Record Officer was examined as PW.3 and got marked Ex.P.9 and 10 documents. The respondent No.1 has not led any evidence on their behalf.
5. I have heard the arguments and perused the materials on record.
6. On the basis of the above pleadings, the following points arise for my consideration;
POINTS
1. Whether the petitioner proves that she met with an RTA that occurred on 17- 04-2012 at about 4.00 p.m., near Kondreddypalli Cross, Vemula, Y.S.R. District, Kadapa, and the petitioner sustained injuries due to rash and negligent driving of Lorry bearing No.KA.TN-28-AJ-2210?
2. Whether the petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
7. By considering the evidence on record and because of my below discussed reasons, I answer the above points in the followings:
Point No.1: IN THE AFFIRMATIVE
Point No.2: PARTLY IN THE AFFIRMATIVE
Point No.3: AS PER FINAL ORDER.
5 MVC.3686/12
SCH-16
REASONS
POINT NO.1:
8. It is the burden on the petitioner to prove that, due to rash and negligent driving of the driver of respondent No.1, the accident took place and she has sustained injuries as stated in the petition averments.
9. The petitioner has reiterated the petition averments in her examination-in-chief affidavit and she has stated about the manner of accident, rash and negligent driving of driver of Lorry bearing Reg.No.TN-28-AJ-2210, injury sustained by her, taking treatment in the Hospital and spending of amount towards her medical treatment. She has also stated about her avocation and earnings.
10. Apart from his oral evidence, PW-1 has also produced the copy of FIR at Ex.P.1, Complaint at Ex.P.2, Sketch at Ex.P.3, Wound Certificate at Ex.P.4, copy charge sheet at Ex.P.5, 8 medical bills at Ex.P.6, clinical note at Ex.P.7, x-ray at Ex.P.8, authorization letter at Ex.P.9, and case sheet at Ex.P.10.
11. On perusal of the FIR is clear that, the Lorry bearing Reg.No. TN-28-AJ-2210 hit the car of the petitioner. Further, on the basis of the complaint as per Ex.P.2 FIR was 6 MVC.3686/12 SCH-16 lodged. The sketch reveals, the spot of accident. After investigation, the police have filed the charge sheet against the driver of the above said Lorry for the offences punishable under Section 337, 338 IPC and Section 134 (a) and (b) R/w 187 of M.V.Act as per Ex.P.5. The list of witnesses reveals, the present petitioner has sustained the injuries in the accident.
12. In the cross examination it is elicited from the mouth of petitioner that, at the time of accident they were proceeding to Kadapa from Bengaluru. Four persons were proceeding in the Car and the accident took place when the tyre of the Car was punctured. The parking light of the Car were on when it was parked, the suggestions was made to the PW.1 that no such indicators were on, which is denied. It is further denied that, the accident was due to sole negligence of the petitioner. Ex.P.1, 2 , 3 and 5 reveals, the accident was due to the rash and negligent driving of the driver of Lorry bearing Reg.No.TN-28-AJ-2210. The sketch reveals, when the car of the petitioner was parked by the side of road on the left side at that time the Lorry hit from back because of which the accident took place. It is also to be noted that, though the 7 MVC.3686/12 SCH-16 respondent No.1 appeared before the Court they have not filed their objections. The respondent No.2 being the owner of the vehicle bearing Reg.No.TN-28-AJ-2210 has also not appeared before the Court. Ex.P.1, 2, 3 & 5 reveals, the accident was due to rash and negligent driving of driver of Lorry bearing Reg.No.TN-28-AJ-2210. There are no contra materials to brush aside, the above said oral evidence as well as documents placed by the petitioner. Hence, court has safely come to the conclusion that, the driver of the Lorry bearing Reg.No.TN-28-AJ-2210 was responsible for the accident. Accordingly, I answer Point No.1 in the Affirmative.
Point No.2:
13. The Ex.P.4 wound certificate of petitioner of Columbia Asia Hospital reveals that, the petitioner has sustained injuries i.e., C6-C7 disc prolapse with dislocation, fracture of DG vertebra, fracture of C1 anterior arch, cut injury over left side of scalp. In the opinion of the Doctor the injury No.1 to 3 are grievous and injury No.4 is simple in nature. The Ex.P.4 reveals that, on 17-04-2012 the petitioner was admitted at Columbia Asia Hospital and she was 8 MVC.3686/12 SCH-16 discharged on 27-04-2012. The petitioner was an inpatient for nearly period of 10 days in the Columbia Asia Hospital. Looking to the above said injuries and also the period for which the petitioner was under treatment, this tribunal is of the opinion that, the petitioner is entitled for compensation of Rs.40,000/- under the head pain and sufferings.
14. It is suggested to the PW.1 that, her medical bills are fully reimbursed but the said suggestion was denied. The petitioner has produced medical bills as per Ex.P.6 and he has also produced prescriptions, in total the petitioner has spent to the tune of Rs.7,843.93/-, which can be rounded off to Rs.7,900/- towards her treatment. Hence, I feel it is just and proper to award a sum of Rs.7,900/- to the petitioner towards medical expenses.
15. The petitioner has stated that, she was doing business and earning more than Rs.20,000/- per month. There is no document to show the income of the petitioner and also avocation. Though the Doctor has stated that, the petitioner is a Software Engineer, absolutely there is no document to that effect. It is to be noted that, the petitioner because of her above said injuries she has to take rest in 9 MVC.3686/12 SCH-16 order to recover for at least minimum period of three months. Hence, I feel it is just and proper to award a sum of Rs.21,000/- to the petitioner towards loss of income during the laid up period.
16. PW.2 has stated that, as per discharge summary she was initially treated at Andra Pradesh and thereafter shifted to Columbia Asia Hospital where investigation was done and found to have C6-C7 disc prolapse with dislocation with cord compression, anterior arch fracture. She underwent anterior cervical discectomy/corpectomy with fusion on 18-04-2012 and discharged on 26-04-2012. In the opinion of the Doctor the neck movements of the petitioner are restricted and her power in the right upper limb is 4/5. He has further stated that, the petitioner has sustained disability of 20% to the whole body.
17. In the cross examination PW.2 has admitted that, he is not treated Doctor, but he has examined the petitioner on 18-03-2015. It is stated that, the Neurologist has treated the petitioner. The injuries of the petitioner can be cured by the treatment of Neurosurgeon. He has admitted that, in the Ex.P.7 restrictions in the range of movement has not been 10 MVC.3686/12 SCH-16 stated. He has admitted there is restrictions only in the cervical spine of the petitioner. He has admitted that disability can be only assessed in respect of cervical spine and not to the whole body. He has further stated that, inspite of the injuries sustained by the petitioner she can continue her work. The learned counsel for the respondent No.1 during the course of arguments has highlighted the above said admissions of PW.2 and contended that, there is no loss of income due to disability as the petitioner can continue her profession even with injuries. It is to be noted that, PW.2 has not stated about the occupational disability of the petitioner. The evidence of PW.2 has to be cautiously assessed as he has specifically admitted that, in Ex.P.7 the range of movements has not been specifically stated and in respect of spine disability can be stated and not to the whole body. In the opinion of the Doctor, the petitioner can continue with her profession inspite of injuries. Therefore, the question of awarding compensation under the head loss of income due to disability will not arrive in this case.
18. The petitioner was an inpatient for a period of 10 days and he might have spent considerable amount towards 11 MVC.3686/12 SCH-16 treatment, Petitioner has incurred expenses towards conveyance, attendant charges and nutritious food. Hence, I feel it is just and proper to award a sum of Rs.15,000/- to the petitioner towards attendant charges, nutritious food and conveyance charges.
19. As per wound certificate and discharge summary the petitioner has sustained C6-C7 disc prolapse with dislocation, fracture of DG vertebra, fracture of C1 anterior arch, cut injury over left side of scalp. The Hematology report also reveals, the petitioner has sustained head injury. Therefore, considering the age, nature of injuries sustained by the petitioner and percentage of disability, this tribunal is of the opinion that, the petitioner is entitled for the compensation of Rs.20,000/- towards loss of amenities and future happiness.
20. PW.2 has not stated anything about the petitioner in need of the future surgery. But it is to be noted that, looking to the injuries, the petitioner has to take treatment in future. Therefore, this tribunal is of the opinion that, the petitioner is entitled for compensation of Rs.5,000/- towards future medical expenses.
12 MVC.3686/12
SCH-16 There are no grounds to award compensation under any other heads. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs. 40,000/-
2 Attendant charges, nutritious
Rs. 15,000/-
expenses & conveyance
charges
3 Medical expenses Rs. 7,900/-
4 Loss of income during laid up Rs. 21,000/-
period
5 Loss of future amenities and Rs. 20,000/-
happiness
6 Future medical expenses Rs. 5,000/-
Total Rs. 1,08,900/-
In total, the petitioner is entitled for the compensation of Rs.1,08,900/-.
Interest:
21. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : 13 MVC.3686/12
SCH-16 (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a. Liability:
22. No where in the cross-examination the learned counsel for the respondent No.1 made attempt to deny that, the lorry bearing Reg.No.TN-28-AJ-2210 was not insured with them. The respondent No.1 has not filed the objections. There is no specific denial as to the issuance of policy by the respondent No.1. Such being the case, the Court deems that, as on the date of accident the policy was in force. The respondent No.1 being the insurer and respondent No.2 being owner of the vehicle are jointly and severally liable to pay compensation to petitioner with interest at 9% p.a. However, 14 MVC.3686/12 SCH-16 primary liability is fixed on respondent No.1. Accordingly, Point No.2 is answered partly in the affirmative.
Point No.3:-
23. In view of my above findings, the petition deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner is allowed in part.
The petitioner is entitled for compensation of Rs.1,08,900/- (Rs. One lakh eight thousand nine hundred only)- with interest at the rate of 9% per annum (excluding future medical expenses of Rs.5,000/-) from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 -Insurance Company and is directed to pay the compensation amount within two months from the date of this order.
Out of the said compensation amount awarded, 50% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner as FD in any nationalized bank for a period of three years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest 15 MVC.3686/12 SCH-16 periodically and the remaining amount with proportionate interest shall be released to the petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 9th day of February 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of petitioners:
PW-1 : Srujana
PW-2 : Dr.Nagaraj B.N.
PW-3 : Yadunandana H.L.
Documents marked on behalf of petitioners:
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of Statement
Ex.P.3 : Copy of Sketch
Ex.P.4 : Copy of Wound Certificate
Ex.P.5 : Copy of Charge Sheet
Ex.P.6 : 8 Medical Bills
Ex.P.7 : 3 Clinical Note
Ex.P.8 : X-ray
Ex.P.9 : Authorization Letter
Ex.P.10 : Case Sheet
Witnesses examined on behalf of respondents:
-NIL-16 MVC.3686/12
SCH-16 Documents marked on behalf of the respondents:
-NIL-
(SATISH.J.BALI) MEMBER:MACT, BANGALORE.