Bangalore District Court
Vinod Rao Alias Vinoba Rao vs Chimana Ram .D on 19 January, 2016
BEFORE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 19th DAY OF JANUARY, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C.No.2545/2014
PETITIONERS: Vinod Rao Alias Vinoba Rao,
S/o. Bheemanna,
Aged about 55 Years,
No.297/2, 29th Main Road,
Old Madiwala, V.P. Road,
B.T.M. 1st Stage,
Bangalore-560 068.
(By pleader - Sri. L.P. Narasimha
Murthy)
- V/S -
RESPONDENTS: 1. Chimana Ram .D.
No.22/6-4, 3rd Floor, 3rd Cross,
100 Feet Ring Road, Hosakerehalli,
Bangalore-560 035.
(Dismiss)
2. The Manager,
United India Insurance Company
Limited,
(HUB) Krishibhavan, Hudson Circle,
Bangalore-560 001.
(By pleader - Sri. K.L.M. Shabbir
Ahmed)
SCCH-11 2 MVC 2545/2014
JUDGMENT
Petitioner has filed this claim petition against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred that, on 4.4.2014 at 6:45pm, petitioner was waiting to cross the road at Hosa Road, opposite to Blossom hospital , Chennakeshavanagar, Bangalore. At that time, rider of motor cycle bearing No.KA-01-EJ-5108 has ridden the said vehicle in rash and negligent manner endangering human life with high speed from west to east direction ie opposite to Blossom hospital, Hosa Road, Chennakeshavanagar and dashed to the petitioner. Due to said impact, the petitioner has sustained grievous injuries to his head, ear and right leg and all over body.
3) Immediately after the accident, petitioner was shifted to Blossom hospital, Bommanahalli, Bangalore for treatment wherein he was treated as inpatient from 4.4.2014 to 13.4.2014. Later on, he was admitted to Sanjaya Gandhi hospital Bangalore wherein he was admitted as inpatient from 15.5.2014 to 24.5.2014. Petitioner has spent Rs.2,50,000/- towards SCCH-11 3 MVC 2545/2014 medical expenses, nourishment, conveyance, attendant charges. Petitioner is still under treatment. Prior to the accident, petitioner was hale and healthy and he was earning Rs.15,000/- per month and he is sole earning member in his family and due to accidental injuries, he is not a position to continue his avocation as tiles layman and as such, he has incurred loss of income. Due to accidental injuries, petitioner and his family members are finding difficult to lead their life. The accident has taken place due to rash and negligent driving by the rider of offending vehicle and jurisdictional police have registered the case against the rider of offending vehicle and after investigation, they have filed charge sheet against him for the offences punishable under section 279,338 of IPC. The respondents being owner and insurer of offending vehicle are jointly and severally liable to pay the compensation to the petitioner. Hence, the petitioner has claimed the compensation of Rs.10,00,000/- along with interest and costs.
4) Though, sufficient time has been granted to the petitioner, he has not taken steps against the respondent No.1. Hence, claim petition against the respondent No.1 is dismissed for not taking steps.
SCCH-11 4 MVC 2545/2014
5) The respondent No.2 has filed written statement and denied the contents of claim petition. It is contended that, petitioner ought to have impleaded policy issuing office as party to this claim petition and claim petition is not maintainable either in law or on facts and liable to be dismissed. The liability if any of the respondent No.2 is subject to valid and effective driving licence by the rider of offending vehicle and also subject to the terms and conditions of insurance policy, scope, ambit and exceptions of the insurance policy. The compensation claimed by the petitioner is highly excessive, exorbitant and beyond proportion and cause wrongful loss to the respondent No.2. The alleged accident has taken place due to negligence of petitioner himself. The respondent No.1 has not informed to the respondent No.2 about alleged accident and he has not furnished information and he has not extended co-operation to the respondent No.2 to contest claim petition by colluding with the petitioner. The respondent No.2 seeks permission of this court to contest claim petition on all grounds including actionable negligence and quantum of compensation as per section 170 of Motor Vehicles Act. In the event of any award passed in favour of petitioner and against respondent No.2, the SCCH-11 5 MVC 2545/2014 rate of interest cannot exceed more than 6% per annum. Therefore, it is prayed for dismissal of claim petition with costs.
6) Petitioner himself examined as PW1 and also examined Dr. Chandna Dash S/o Dr. D. D. Dash as PW2 and got marked ExP.1 to 16 and closed the evidence. Though sufficient time has been granted to the respondent No.2, it has not led evidence. Hence, respondent No. 2 side evidence is taken as nil.
7) Heard the arguments of learned counsel for petitioner and learned counsel for respondent No2 and perused the evidence on record.
8) On the basis of the pleadings of the parties, following issues have been framed:
1. Whether petitioners prove that, on 4.4.2014 at about 6:45pm when he was crossing the road at Hosa Road, opposite Blossom Hospital, Chennakeshavanagar, Bangalore, at that time, the rider of Honda Active bearing Regn.No.KA-01-EJ-5108 driven the said vehicle in rash and negligent manner and dashed to the petitioner by which he sustained grievous injuries?
2. Whether petitioners are entitled for compensation as prayed in the petition? If so, what is quantum of compensation?
SCCH-11 6 MVC 2545/2014
3. What order or award?
9) My findings on the above issues are as under:
Issue No.1 : Affirmative;
Issue No.2 : Partly Affirmative; the petitioner is entitled for compensation of Rs.3,00,542/- with interest @ of 6% p.a. from the date of petition till complete realisation, from respondent No.2.
Issue No.3 : As per final order, for the
following :
-:REASONS:-
10) Issue No1: PW1 has stated in his evidence that, on
4.4.2014 at 6:45pm, he was waiting to cross the road at Hosa Road, opposite to Blossom hospital, Chennakeshavanagar, Bangalore, at that time, rider of motor cycle bearing No.KA-01- EJ-5108 has ridden the said vehicle in rash and negligent manner endangering human life with high speed from west to east direction and dashed to him. He has also stated that, due to said impact, he has sustained grievous injuries to his head, ear and right leg and all over body and accident has taken place due to rash and negligent driving by the rider of offending vehicle and jurisdictional police have registered the case against the rider of SCCH-11 7 MVC 2545/2014 offending vehicle and after investigation, they have filed charge sheet against him for the offences punishable under section 279, 338 of IPC.
11) In the cross examination of PW1, he has stated that, the motor cycle dashed to his right leg and he was on the side of the road at the time of the accident and road where he was crossing is having width of 20 feet. He has stated that, after the accident, he fallen down on the left side of mud road and there were no other vehicles on the except the vehicle of respondent at the time of the accident. He has admitted that, there is no zebra line or center line on the road at the place of the accident. He has stated that, the accident has taken place at about 4:00pm to 5:00pm.
12) Petitioner has produced true copy of F.I.R and complaint which are marked at Ex.P.12 and as per the said documents, on 4.4.2014 at about 6:45 pm, when the petitioner was going on the road at Hosa road opposite to Channakeshavanagara, at that time, rider of Honda Active No.KA-01-EJ-5108 has ridden the said vehicle in rash and negligent manner and dashed to the petitioner. The petitioner was admitted to the Blossom Hospital and later on, 5.4.2014 at SCCH-11 8 MVC 2545/2014 about 1.30 pm., complaint was lodged in Electronic City Police Station and police have registered the case in crime No.51/2014 for the offences punishable under section 279, 337 of I.P.C. The petitioner has also produced true copy of charge sheet which is marked to Ex.P.6 and as per the said document, police have filed charge sheet against the rider of the offending vehicle for the offences punishable under section 279, 338 of I.P.C. He has also produced Ex.P.7 which is true copy of wound certificate issued by Blossom Hospital and as per the said document, petitioner has sustained grievous injuries.
13) The learned counsel for respondent has submitted that, Ex.P.4 is hand sketch map, Ex.P.3 is panchanama which clearly indicate that, accident has taken place at junction and petitioner was crossing the road against the traffic rules. He has submitted that, there is contributory negligence on the part of the petitioner and he is responsible for the alleged accident as he was crossing the road where there is no zebra crossing and contributory negligence to the extent of 30% is to be taken on the part of the petitioner. He has relied upon decision reported in ( Koosappa Poojari Vs. Sadabba and Others) I.L.R 2004 KAR 1104 wherein it is held that, "if a pedestrian is crossing over a roadway at any place other than which is meant for SCCH-11 9 MVC 2545/2014 pedestrian crossing, he can not claim any specific precedence and the responsibility for causing the accident. Pedestrian has to share the negligence along with the driver ". He has also relied upon decision reported in (Saravana Vs. T.Kiran Vinod Kumar and another) 2014(4) AKR 243 in which it is held that, " Claimant had crossed road where he was not supposed to cross road, rider of offending vehicle having approached junction had not reduced speed of vehicle due to which accident occurred, claimant held guilty of contributory negligence to extent of 15% and rider of offending vehicle to extent of 85%".
14) On perusal of the oral evidence and documentary evidence, the accident has taken place due to rash and negligent driving by the rider of the offending vehicle. Though, there is one day delay in lodging the complaint which is not the ground to reject the claim petition. On perusal of oral and documentary evidence on record, they reveal that, the accident has taken place due to rash and negligent driving by the driver of offending vehicle. Though, the respondent insurance company has taken contention about contributory negligence, the said aspect will be considered while discussing about liability aspect. On perusal of evidence on record, it reveals that, the accident has taken place SCCH-11 10 MVC 2545/2014 due to rash and negligent driving by the driver of offending vehicle. So I answer issue No1 in the affirmative.
15) Issue No2: PW1 has stated in his evidence that, immediately after the accident, he was shifted to Blossom hospital Bommanahalli wherein x-rays were taken which reveal that, he has sustained communited segmented fracture of both bones of right leg, head injury and bleeding from ear left haemo tympanum. He has stated that, he was treated as inpatient from 4.4.2014 to 13.4.2014 and during the course of treatment, he undergone surgery of Closed Reduction Internal Fixation with IMIL Nailing and doctors have taken scanning to his head and given treatment and discharged him with an advice to take bed rest and follow up treatment and as per advice of doctors, he is taking follow up treatment. He has stated that, after discharge from Blossom hospital, he used to get severe pain in his right leg and also blood souring in the wounds sustained by him for which he was admitted to the Sanjay Gandhi hospital, Bangalore as inpatient for the period of 10 days and doctors have advised him to take further treatment and also undergo further surgery and due to financial crisis, he is unable to take better treatment. He has stated that, he has spent more than Rs.2,00,000/- towards hospitalisation and medical expenses and Rs.1,00,000/- SCCH-11 11 MVC 2545/2014 towards conveyance and nourishment by borrowing from his relatives and friends.
16) Learned counsel for petitioner has contended in his arguments that, petitioner has sustained fracture of both bones, head and bleeding injury from ear. He has also submitted that, petitioner has produced medical bills of Rs.1,15,000/- and he has also taken treatment as out patient in Sanjay Gandhi hospital and Victoria hospital and he has also produced out patient records about treatment taken by him in the hospitals. He has also contended that, petitioner has produced photographs about injuries sustained by him and doctors have advised for amputation of leg due to age oldness of petitioner. He has submitted that, petitioner was doing work of laying tiles and granites and petitioner has produced his identity card about his age and he has produced inpatient records of Sanjay Gandhi hospital and petitioner has borne expenses by borrowing amount from his relatives and friends and maximum award may be released to the petitioner to meet out the loan borrowed by him.
17) Learned counsel for respondent has contended that, ExP.3 and 4 which are panchanama and hand sketch map SCCH-11 12 MVC 2545/2014 clearly indicate that, accident occurred at a junction and petitioner was crossing the road against traffic rules and regulations. He has also submitted in the written arguments that, age and name of petitioner differs in the hospital and other records and at one place, it was shown the age of petitioner as 55 years and name of petitioner is shown as Vinob Ram and in other places, it is shown as Vinob Rao and his age is shown as 60 years. He has also contended that, petitioner has stated in his cross examination that, he is not using any walker and he never used his walker and PW2 has stated that, person with 90% mobility component cannot walk independently without help of clutches and there is contradiction in the evidence of PW1 and 2 which give raise to suspicion about disability assessed by doctor at 15% to the whole body. He has also argued that, medical bills are not supported by medical prescriptions and x-rays produced by the petitioner are not supported by radiological reports. He has also contended that, petitioner is responsible for the alleged accident as he was crossing the road at the place where there is no zebra line and this fact is admitted by PW1 in his cross examination and contributory negligence may be taken to the extent of 30% on the part of petitioner. He has relied upon the decision of Hon'ble High Court reported in SCCH-11 13 MVC 2545/2014 2014(4) AKR 243 and submitted that, where treatment was taken for 6 days, reasonable compensation may be awarded.
18) Petitioner has produced 15 medical bills which are marked as ExP.9 and he has also produced 6 medical prescriptions which are marked as ExP.10 and as per medical bills, he has spent Rs.1,14,729 for the purpose of treatment. Though, learned counsel for respondent insurance company has contended that, there are different names in the medical bills, the said contention is not acceptable. Because, in the claim petition, the name of petitioner is shown as Vinod Rao @ Vinoba Rao and in the medical bills, his name might have been mistakenly written as Vinod Ram by hospital authorities and for that reasons, medical bills cannot be discarded. Hence, I hold that, petitioner is entitled for the compensation of Rs.1,14,729 under the head of medical expenses. Hence, petitioner is awarded the compensation of Rs.1,14,729 under the said head.
19) PW1 has stated in his evidence that, he was admitted as inpatient in the Blossom hospital from 4.4.2014 to 13.4.2014. He has produced discharge summary issued by Blossom hospital which is marked as ExP.8 and as per said document, he was admitted in the said hospital for the period of SCCH-11 14 MVC 2545/2014 10 days. During the period of hospitalisation, he would have spent some amount towards food, conveyance, nourishment and attendant charges and his family members who attended him would have also spent some amount towards food and other incidental charges. Considering this fact and also cost of living, I feel it just and proper to award the compensation of Rs.10,000/- . Hence, petitioner is awarded the compensation of Rs.10,000/- under the head of food, conveyance, nourishment and attendant charges.
20) Petitioner was admitted as inpatient in Blossom hospital from 4.4.2014 to 13.4.2014. As per the evidence of PW1, prior to the accident, he was hale and healthy and he was working as tiles layman and earning Rs.15,000/- per month and maintaining his family as he is only earning member in his family. He has also stated that, he was also taking civil contract work by laying tiles and earning more than Rs.5,000/- per month and he was totally earning more than Rs. 20,000/- per month and due to the accidental injuries, he has lost his income. Petitioner would have lost his income during the course of hospitalisation and his family members who attended him would have also lost some income. Considering period of hospitalisation and income and avocation of petitioner, I feel it just and proper SCCH-11 15 MVC 2545/2014 to award the compensation of Rs.15,000/- under the head of loss of income during laid up period. Hence, petitioner is awarded the compensation of Rs.15,000/- under the said head.
21) PW.1 has stated in his evidence that, due to the accidental injuries, he is unable to walk, sit, stand, squat, cannot use Indian toilet, cannot climb the steps, cannot carry any weight and he is getting severe pain and he has suffered permanent disability. He has stated that, he is frequently getting pain and swelling and even though, he is using stretches while walking he is unable to walk independently. PW.2 has stated in his evidence that, on 01.10.2015, he examined the petitioner for disability assessment and petitioner complained that, he is unable to stand for long time, difficulty to climb up and down, unable to sit cross leg and squat, loss of sensation over the operated site. As per his evidence, the petitioner has suffered mobility component at 90% and stability component at 10% and he has restricted movement at 90% and loss of muscle power at 90%. He has also assessed the disability and he has also assessed difficulty to squat at 5% and to sit cross leg. Due to the fractured injuries, petitioner has undergone deep pain and agony and he has to suffer mentally throughout his life and he has suffered restricted movements and loss of muscle power as SCCH-11 16 MVC 2545/2014 per the evidence of PW.2. Considering on this aspect, I feel it just and proper to award the compensation of Rs.35,000/- under the head of pain and agony. Hence, the petitioner is awarded the compensation of Rs.35,000/- under the head of pain and agony.
22) PW.2 has stated in his evidence that, petitioner has restricted range of movements and loss of muscle power and he is unable to squat and sit crossed leg and he has suffered permanent disability at 44% to the right lower limb and whole body disability at 15%. The learned counsel for respondent insurance company has contended that, PW.1 has stated in his evidence that, he is not using stretches and PW.2 has stated that, petitioner is using stretches and there is contradictory evidence and the evidence of PW.1 and PW.2 is not believable. In the cross-examination of PW.1, he has stated that, presently he is not using walker while walking. PW2 has stated that, petitioner is having 90% mobility component, cannot walk independently without the help of clutches. However, the petitioner has restricted movement due to fractured injuries and he is unable to carryout routine activities as effectively as earlier due to the accidental injuries and he has to depend upon others SCCH-11 17 MVC 2545/2014 for routine activities. In a decision relied by the learned counsel for respondent insurance company reported in 2012(1) AIR Kar R 159, the claimants sustained fracture of tibia and to the left side leg and he was unable to attend his normal work for the period of three months and the Hon'ble High Court has held that, the enhancement of compensation towards loss of amenities as just and proper. Due to the accidental injuries, petitioner is unable to carryout his routine activities and he has 15% disability to the whole body and 44% disability to the particular limb. Considering this fact, I feel it just and proper to award the compensation of Rs.40,000/- under the head of loss of amenities in life. Hence, petitioner is awarded the compensation of Rs.40,000/- under the head of Loss of amenities in life.
23) PW.1 has stated in his evidence that, prior to the accident, he was working as Tiles Layman and earning Rs.15,000/- per month and maintaining the family and he was doing Civil Contract work and out of the said work, he is getting more than Rs.5,000/- per month and he was earning more than Rs.20,000/- per month. Petitioner has not produced any documents about his income and avocation. In the hospital records, age of the petitioner is shown as 55 years. In wound SCCH-11 18 MVC 2545/2014 certificate, age of the petitioner is shown as 50 years. There are no documents about income of the petitioner. If the age of the petitioner is taken in between 51 to 55 years, the multiplier applicable to the facts of the case is '11'. Since petitioner has not produced any documents about income, the notional income of the petitioner is taken at Rs.5,000/-. Since petitioner is aged above 50 years, there shall be addition of 15% as per the decision of Hon'ble Supreme Court reported in Rajesh and others V/s Rajbir Singh and others, 2013 ACJ 1403. Then gross income of the petitioner will be Rs.5,750/-. As per the decision of Hon'ble Supreme Court reported in Yeramma and others V/s G. Krishnamurthy and another AIR 2015 SC 1145. In case of injured victim, the gross income is to be considered. Then, actual loss of income will be calculated as under :
Rs.5,750/- X 12 X 15 X 11/100 = Rs.1,13,850/-
So I hold that, petitioner is entitled for compensation of Rs.1,13,850/- under the head of loss of income.
24) As per the evidence of PW.2, the petitioner has to undergo one more surgery for removal of implants which will cost at 30,000/- in their hospital. On perusal of Ex.P.16 which SCCH-11 19 MVC 2545/2014 is recent x-ray, the implants are in situ and petitioner has to undergo one more surgery for removal of implants. Considering this fact, I feel it just and proper to award the compensation of Rs.25,000/- under the head of future medical expenses which shall not carry any interest. Hence, petitioner is awarded compensation of Rs.25,000/- under the head of future medical expenses.
25) The petitioner is entitled for compensation under different heads which is calculated as under:
1) Towards Medical expenses Rs. 1,14,729/-
2) Towards food, Conveyance, Rs. 10,000/-
nourishment and attendant
3) Towards loss of income Rs. 15,000/-
during laid up period
4) Towards loss of pain & agony Rs. 35,000/-
5) Towards loss of amenities Rs. 40,000/-
6) Towards loss of income Rs.1,13,850/-
7) Towards future medical
expenses Rs. 25,000/-
TOTAL Rs.3,53,579/-
SCCH-11 20 MVC 2545/2014
26) The learned counsel for respondent has contended that, the petitioner was crossing the road where there is no zebra line and there is contributory negligence and he is liable for the contributory negligence. He has relied upon a decision reported in Koosappa Poojari V/s K. Sadabba and Others, ILR 2004 KAR 1104. He has also relied upon one more decision of Hon'ble High Court reported in Saravana V/s T. Kiran Vinod Kumar and another, 2014(4) AKR 243 in which, the claimant had crossed road where he was not supposed to cross the road and claimant held guilty of contributory negligence to the extent of 15% and rider of the offending vehicle to the extent of 85%. In this case also, the petitioner was crossing the road, where there is no zebra line and he was not supposed to cross the road at the said place and there is also contributory negligence on his part. Hence, the contributory negligence is taken at 15% as per the principles laid down in the decisions of Hon'ble High Court referred by the learned counsel for insurance company. After deducting 15% of contributory negligence, petitioner is entitled for compensation of Rs.3,00,542/-.
27) The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle and as on the date of accident, insurance policy was inforce. So, I hold that, SCCH-11 21 MVC 2545/2014 petitioner is entitled for compensation of Rs.3,00,542/- along with interest at the rate of 6% per annum from the date of petition till its realization from respondent No.2. So, I answered issue No.2 in partly affirmative.
28) ISSUE No.3: In view of answers to issues No.1 and 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.3,00,542/- (After reducing 15% towards contributory negligence) along with interest at the rate of 6% p.a. from the date of petition till complete realization from respondent No.2. (Future Medical expenses shall not carry any interest.) The respondent No.2 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation by the respondent No.2, the amount of Rs.1,00,000/- shall be deposited in F.D in the name of petitioner in any SCCH-11 22 MVC 2545/2014 nationalized or scheduled bank for the period of 5 years, failing to furnish the particulars, the same shall be deposited in Karnataka Bank, City Civil Court Branch, Bangalore.
Remaining amount of Rs.2,00,542/- along with accrued interest shall be released to the petitioner through account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in open court on this 19th day of January, 2016.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Vinod Rao Alias Vinoba Rao
PW.2 - Dr. Chandna Dash
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of FIR
Ex.P.2 - True copy of Complaint
Ex.P.3 - True copy of Panchanama
SCCH-11 23 MVC 2545/2014
Ex.P.4 - True copy of Hand sketch map
Ex.P.5 - True copy of IMV report
Ex.P.6 - True copy of Charge sheet
Ex.P.7 - True copy of Wound certificate
Ex.P.8 - Discharge summary
Ex.P.9 - 15 Medical bills
Ex.P.10 - 6 Medical prescription chits
Ex.P.11 - One photo
Ex.P.12 - One C.D
Ex.P.13 - One OPD card issued by Victoria Hospital
Ex.P.14 - One OPD card issued by Sanjay Gandhi
Hospital.
Ex.15 - Inpatient records
Ex.16 - X-ray
WITNESSES EXAMINED FOR RESPONDENTS :
-- NIL --
DOCUMENTS MARKED FOR RESPONDENTS :
-- NIL --
I ADDL.SCJ. & MACT.