Bangalore District Court
Arun N vs Smt. Ankamma on 4 February, 2015
IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH-22)
Dated this the 4th day of February 2015.
Present: Sri.N.Subramanya, M.Com., LLB.,
Member, MACT & XX ASCJ, Bangalore.
M.V.C. No.1469/2013
Petitioner : Arun N.,
S/o Late Narayan,
Aged about 20 years,
R/at No.225, 9th Cross,
Kadirappa Road,
Appajappa Garden,
Doddigunta, Cox Town,
Bangalore-05
(By Sri. B.S.Manjunath, Adv.)
-Versus-
Respondents: 1. Smt. Ankamma,
W/o. Late. Basavaiah,
R/at: Managanahalli,
Hosuru Post,
Bidadi Hobli,
Ramanagar Tq.& Dist.
(R.C. Owner of Tractor
Bearing reg.No.KA-40-T-7629,
Trailer bearing reg.No.KA-40-T-7630)
(By Sri.K.H.Thimmedgowda, Adv.)
2. The New India Assurance Co.Ltd.,
No.9/2, Mahalakshmi,
2 MVC.No.1469/2013
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Chambers,
M.G.Road,
Bangalore-01
(I.P.No.67010431120100002419
Valid from 28.06.2012 to 27.06.2013)
(By B.P. Mahendra, Adv.)
JUDGMENT
The petitioner has filed this claim petition under Section 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.12,00,000/- from the Respondents for the injuries sustained by him in Motor Vehicle's Accident.
2. The brief essential facts of the case are that:
On 27.12.2012 at about 6.30 p.m. the claimant was pillion rider in a Motor cycle bearing reg. KA-03-ES-7303 along with rider Brito were proceeding from Thalaghattapura towards Bangalore city on Kanakapura main road, the rider was riding the same with slowly and cautiously and while proceeding near Sigma Motors, at that time the driver of the Tractor & Trailer bearing reg. KA-40- T-7629/30 came from behind with high speed, reckless, 3 MVC.No.1469/2013 SCCH-22 rash and negligent manner, endangering human life, without observing traffic rules and regulations, dashed against the sustained grievous injuries. Immediately after the accident petitioner was shifted to Siddagangappa hospital and wherein first aid treatment, given then shifted to Sanjay Gandhi hospital wherein treated for a day and referred to Hosmat hospital as an inpatient from 28.12.2012 to 04.01.2013 in 8 days. Due to the accident and injuries sustained in the said accident the claimant had incurred huge amount towards medical expenses, towards conveyance, nourishment and attendant charges.
Prior to the accident, he was hale and healthy and was working as Painter with Sri. Shankar Civil Contractor, Cox Town, Bangalore and drawing salary sum of Rs.9,000/- p.m. and due to the accidental injuries he is not able to attend his work as earlier.
3. Petitioner has contended that the accident in question was caused solely due to the rash and negligent driving of the Tractor & Trailer bearing reg. No.KA-40-T- 4 MVC.No.1469/2013
SCCH-22 7629/30 by its driver. Hence, petitioner has prayed for award of compensation of Rs.12,00,000/- with interest from the date of petition till realisation and such other reliefs as this tribunal deems fit to grant under the circumstances of the case.
4. In pursuance of service of the notice to the Respondents No.1 and 2, 1st and 2nd Respondents appeared through their respective counsels and filed their separate statement of objections.
5. The 1st respondent stated that the driver of the Tractor & Trailer bearing reg. No.KA-40-T-7629/30 was riding his vehicle slowly on the left side of the Kanakapur main road, and when he reached near Sigma Motors he saw that the inmates of the motor cycle bearing reg. No.KA-
03.ES-7303 were already fell down from their vehicle due to rash and negligent driving of motor cycle and sustained injuries. The 1st respondent stated that the said tractor is not involved in the alleged accident and it is the self accident by the driver of the motor cycle. The petitioner 5 MVC.No.1469/2013 SCCH-22 taking advantage of tractor passed through that road on that day has falsely implicated the same in collusion with the jurisdiction police. The 1st respondent stated that the driver of the Tractor is having valid and licence to drive the same and the tractor is insured with the second respondent and the policy was in force. Hence, prayed for dismissal claim petition.
6. The 2nd respondent stated that the petition is not at all maintainable either in law is in facts and the same is liable to be dismissed in limine. The first respondent owner of Tractor & Trailer bearing reg. No.KA- 40-7629/30 alleged to be involved in the accident failed to inform about the accident and its impact. Further first respondent failed to furnish the particulars of R.C.Book, driving licence, permit etc., The 2nd respondent stated that the issued policy for the Tractor &Trailer bearing reg.No.KA-40-T-7629/30 vide policy No.67010431120100002419 for commercial vehicle package policy. The driver has a driving licence to driver 6 MVC.No.1469/2013 SCCH-22 Agriculture Tractor and Trailer and hence driver did not have an effective driving licence to drive commercial tractor & trailer. The compensation claimed by the petitioner is highly excessive and exorbitant. Hence, prayed for dismissal claim petition.
7. On the basis of the above pleadings, following Issues have been framed:
1. Does the petitioner proves that he sustained grievous injuries arising out of rash or negligent driving of the driver of Tractor& Trailer bearing reg. No.KA- 40-T-7629/30, on 27.12.2012 at about 6.30 p.m. as alleged?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
8. Petitioner to prove the above said issues, has got examined himself as PW1 and got examined Dr. Krishna Prasad witness as P.W.2 and got marked Exs.P.1 to P.17 and closed his side. The respondents have got examined four witnesses as RW.1 to RW.4 and got marked Exs.R.1 to R.15 and side closed.
7 MVC.No.1469/2013
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9. Heard the arguments.
10. My answer to the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Yes, to the extent as shown in the
final order, from
Respondent no.1 & 2.
Issue No.3 : As per final order for the following
REASONS
11. Issue No.1:
Petitioner (Injured) got examined himself as PW1 and has filed his affidavit, narrating the accident as mentioned in the above pleadings. Petitioner to substantiate the said facts, has produced True copies of FIR, Complaint, sketch, Mahazar, IMV report, IMV report, Wound Certificate and Charge sheet pertaining to Crime No.130/2012 of Kumarswamy Layout Traffic Police Station, marked as Exs.P.1 to P8 respectively. On going through the above documents and the Charge sheet-Ex.P.8, it reveals the police on the complaint of the Sri. Brito, after investigation, have placed charge sheet against the driver of the Tractor & Trailer bearing Reg.No.KA-40-T-7629/30 for having caused 8 MVC.No.1469/2013 SCCH-22 the accident due to his rash and negligent driving and the petitioner has sustained grievous injury. Nothing has been brought out in the cross examination of PW1 to disbelieve that the accident was not caused due to the negligence of the driver or the petitioner to have contributed his negligence for the accident. Hence, from the material placed on record, it could be held that the accident in question has occurred due to the rash and negligent driving of the Tractor & Trailer bearing Reg.No.KA-40-T-7629/30 by its driver and the petitioner as per Ex.P.7-Wound certificate has sustained grievous injuries. Hence, I answer Issue No.1 in the Affirmative.
12. Issue No.2:
PAIN AND SUFFERINGS:-
This issue pertains to award of compensation. Petitioner has sustained injuries in the RTA. Petitioner in his evidence has deposed contents of petition and produced relevant documents to prove the injury. He has produced Ex.P.7- Wound certificate from the HOSMAT hospital and he has sustained following injuries:-9 MVC.No.1469/2013
SCCH-22 "Left side zone II sacral fracture with bilateral inferior and superior pubic rami fracture".
The injury is grievous in nature with two fractures.
So, a sum of Rs.50,000/- is awarded under the head "Pain and sufferings".
13. MEDICAL EXPENSES:-
He has produced 50 medical bills at Ex.P.11 and Ex.P.12 medical prescriptions from the HOSMAT hospital which are supported with original and genuine bills for a sum of Rs.1,21,000/-. Hence, a sum of Rs.1,21,000/- is awarded under this head.
14. LOSS OF INCOME DURING LAID UP PERIOD:-
It is stated in the petition that he was Painter and earning a sum of Rs.9,000/- p.m. He has also produced one letter at Ex.P.9 by a Private Civil Contractor about his occupation as Painter and getting a salary of Rs.9,000/- p.m. and also he is not attending duty from the date of accident. But, he has not examined the author of Ex.P.9 10 MVC.No.1469/2013 SCCH-22 and any other employer, Ex.P.9 is a letter issued in a plain paper, there is no letter head or any other particulars. Hence, Ex.P.9 cannot be believed and there is no proof of occupation and income. Hence, notional income of Rs.6,000/- is taken. Petitioner was inpatient as per Ex.P.10 - Discharge summary for eight days; he must have been under rest for four months. Hence, a sum of Rs.25,000/- is awarded under this head.
15. FOOD, NOURISHMENT, ATTENDANT AND TRANSPORTATION CHARGES:-
As per Ex.P.10 - Discharge summary, he was inpatient for eight days and he was under rest for four months. Hence, a sum of Rs.17,000/- is awarded under this head.
16. LOSS OF INCOME DUE TO DISABILTY:-
Petitioner has examined PW-2 - Doctor who has deposed about the nature of injury, history and details and period of treatment and he has stated disability at 19% to the whole body. In the cross examination, he has clearly 11 MVC.No.1469/2013 SCCH-22 stated that fractures are united and left side pelvic bone is non united. There is nothing in the cross examination to disbelieve the assessment given by the Doctor - PW-2. Hence, 19% disability can be taken and the age of the petitioner stated as 20 years in the petition and also in the hospital records. Hence, age of the petitioner is taken as 20 years. Hence, loss of future earning capacity due to disability as per citation reported in (2009) 6 SCC 121, in the case between Sarala Verma -Versus- Delhi Transport Corporation, the multiplier applicable for the age of group of 15 to 20 years is "18". Hence, the loss of future income due to disability would be Rs.6,000 x 12 x 18 x 19/100 = Rs.2,46,240/-. Hence, an amount of rounded to Rs.2,47,000/- is awarded under the head 'Loss of income due to disability'.
17. LOSS OF AMENITIES IN LIFE:-
PW.2 has deposed that the petitioner has sustained sacrum fracture and superior and inferior pubic ramus fracture both sides and the fracture is united but the left 12 MVC.No.1469/2013 SCCH-22 pelvic bone has gone for non-union. The doctor has assessed 19% disability to the whole body and the injuries are affecting the day to day activities of the petitioner. Hence, is entitled for a sum of Rs.10,000/- under the head, "Loss of Amenities in Life".
18. There are no further materials to show that the injuries would affect the life expectancy of the petitioner. There is no evidence for awarding any compensation under other heads. Hence, the petitioner is awarded compensation under the following heads:
1. Pain and sufferings Rs. 50,000-00
2. Loss of income due to disability Rs.2,47,000-00
3. Medical expenses Rs.1,21,000-00
4. Loss of income during laid up period Rs. 25,000-00
5. Food, nourishment, attendant and Rs. 17,000-00 Transportation
6. Loss of amenities in life Rs. 10,000-00 Total Rs.4,70,000-00
19. Thus, in all, petitioner is entitled for compensation of Rs.4,70,000/-. It is just, fair and adequate under the facts and circumstances of the case. 13 MVC.No.1469/2013
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20. With regard to Liability:
The 2nd respondent has taken specific contention about there is no valid and effective driving licence to drive the tractor and trailor to the driver of offending vehicle at the time of accident. They have also examined ARTO, Ramnagara as RW-4 who has produced DL extract of the driver at Ex.R.15 and in the cross examination he has admitted as follows:-
"as per Ex.R.15, Basavaraju is having Driving licence of motor cycle with gear and LMV (tractor) from 23.08.2012 to 22.08.2032. Basavaraju is not having Driving Licence to drive transport vehicles. Before issuing transport Driving Licence, one has to possess non-transport licence of same category for one year. Basavaraju can drive only tractor, not tractor when attached to the trailer".
Counsel for respondent no.1 shown the original Driving licence smart card of Basavaraju. Witness admitted that said Driving Licence is issued from their office. He has further admitted as follows:- 14 MVC.No.1469/2013
SCCH-22 "It is true that as per the Driving Licence smart card, Basavaraju is having Driving Licence to drive agricultural tractor and trailor. Witness volunteers that in the year 2012, our office is issuing Driving Licence of agricultural tractor and trailor, but same is not mentioned in Driving Licence extract, it is mentioned in the Driving Licence smart card as per the software issued by central government. I have not produced the central government notification. It is true that as per Ex.R3, the vehicle is used for agriculture purpose. It is true that as per Ex.R11, Basavaraju was having valid Driving Licence to agriculture tractor and trailer".
"it is false to suggest that though we have issued Driving Licence of LMV agricultural tractor and trailor, by mistake in Ex.R.15 said fact is not mentioned. It is false to suggest that I am deposing falsely to help the insurance company".
Counsel for 2nd respondent has also relied upon decision reported in 2012 ACJ 1408 between National Insurance Company Ltd. vs. Maruthi and others wherein it was held that in para 29 of page 2012:-
"As per the Table agricultural tractor and power tiller are shown in the non-transport classification, but power tiller and tractors using public roads are shown as transport vehicle. The tractor-tiller is a non- transporting vehicle but when used on roads, 15 MVC.No.1469/2013 SCCH-22 is considered as a transport vehicle from the gist of the judgments referred to above. It is crystal clear when the tractor - tiller combined would constitute a goods carriage, therefore permits are necessary for its use on the roads. Under the Motor vehicles Act, by sections 2(44) and 2 (46) the definitions of tractor-trailer would definitely indicate when the trailer drawn or intended to be drawn by a motor vehicle, it becomes a goods vehicle."
While relying the above decision and also as per the charge sheet and other materials on record, the counsel for 2nd respondent contended that in the present case the tractor and trailer is involved in the accident and it becomes a goods vehicle and a specific endorsement is to be issued for the Driving Licence to drive such type of vehicles. But, in the present case as per the extract at Ex.R.15 and also as per the evidence of RW-4 the driver is having Driving Licence for only LMV tractor and also contends that smart card produced by the 1st respondent at Ex.R.11 cannot be believed and 'B' extract is to be considered as the material document to prove the contents of Driving Licence and for that reason insurance company is not liable to pay any compensation to the petitioner and 16 MVC.No.1469/2013 SCCH-22 is liable to be dismissed. From the entire materials on record and from the evidence of RW-4, it is clear that as per Ex.R.15 which is the main document to be considered for the purpose of proving the particular type of DL. According to Ex.R.15 and also as per the evidence of RW-4 the driver of the offending vehicle was not having DL to drive the tractor and trailer which is a goods vehicle. He was having only DL for LMV tractor only. Though the RW-4 has stated the both the versions in the chief examination of Respondent no.2 and cross examination of respondent no.1 regarding the contents and validity of Ex.R.15 and Ex.R11 but in the cross examination of petitioner he has clearly denied the suggestion about issuing of DL of LMV agricultural tractor and trailer and by mistake in Ex.R.15 it is not mentioned. Hence, the evidence as above after the chief examination by respondent no.2 and cross examination of respondent no.1, the evidence in the cross examination by the petitioner is final and conclusive to hold that they have not issued DL for tractor and trailer. Hence, 2nd respondent is not liable to pay the compensation and 17 MVC.No.1469/2013 SCCH-22 the 1st respondent who is the owner of the vehicle is alone liable to pay the compensation to the petitioner with interest at 8% p.a. from the date of petition till realization. Hence, I answer Issue No.2 in the affirmative accordingly.
21. As per the following citations, interest at 8% p.a. is to be awarded:-
1. ILR 2009 KAR 385 between Smt. Nasreen Banu and others vs. The Divisional Manager and another.
2. 2005 ACJ 644 between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd.
and another.
22. Issue No.3: In view of my finding on Issue Nos. 1 and 2, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under Sec.166 of M.V. Act, is hereby allowed in part, with cost.
The claim petition against the 2nd respondent is hereby dismissed.18 MVC.No.1469/2013
SCCH-22 The petitioner is entitled for compensation in a sum of Rs.4,64,000/-(Rupees Four Lakhs Sixty four thousand only) and shall carry interest at 8% p.a. from the date of petition till realisation of the amount.
Respondents No.1 is held liable to pay the above said compensation amount to the petitioner and directed to deposit the compensation amount within 30 days from the date of this order.
On deposit of compensation amount, 50% of the compensation amount awarded to the Petitioner with proportionate interest shall be kept in Fixed Deposit in his name, for a period of five years in any of the Nationalised or scheduled Banks of petitioner choice Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 04th day of February 2015).
(N.SUBRAMANYA) Member MACT & XX ASCJ., Bangalore.19 MVC.No.1469/2013
SCCH-22 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 Arun N PW2 Dr. Krishna Prasad
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P1 Copy of FIR Ex.P2 Copy of Complaint Ex.P3 Copy of Sketch Ex.P4 Copy of Mahazar Ex.P5 Copy of IMV report Ex.P6 Copy of IMV report Ex.P7 Copy of Wound certificate Ex.P8 Copy of Charge sheet Ex.P9 Salary certificate Ex.P10 Discharge summary Ex.P11 50 Medical bills Ex.P12 3 Advance receipts Ex.P13 Medical Prescription Ex.P14 4 X- rays Ex.P15 Outpatient record Ex.P16 Inpatient record Ex.P17 One new X-ray with report
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 Sri. C.K.Surya Prakash RW2 Sri. Muniraju RW3 Sri. Ramegowda RW4 Sri. G.S.Gurumurthy
LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 Authorization letter
20 MVC.No.1469/2013
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Ex.R2 True copy of the policy
Ex.R3 "B" register extract
Ex.R4 Extract of Driving licence
Ex.R5 Copy of IMV report
Ex.R6 Copy of IMV report
Ex.R7 Copy of Charge sheet
Ex.R8 Copy of the notice sent to insured
Ex.R9 Postal receipt
Ex.R10 General Power of Attorney
Ex.R11 Notarized copy of DL
Ex.R12 Notarized Copy of RC book of Tractor Ex.R13 Notarized Copy of RC book of Trailer Ex.R14 Notarized Copy of Insurance Policy Ex.R15 DL of LMV agricultural Tractor & Trailer Member, MACT & XX ASCJ, Bangalore.
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