Bangalore District Court
Sri. Sundaresh vs The Managing Director on 28 April, 2018
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this the 28th Day of April 2018
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NO. 1895/2017
PETITIONER:
Sri. Sundaresh.,
Aged about 52 years,
S/o Late Revanna,
R/at Thamasandra Village,
Girenahalli Post,
Harohalli Hobli,
Kanakapura Taluk,
Ramanagara District.
(By Sri. Girimallaiah., Adv.)
-VS-
RESPONDENT:
The Managing Director
K.S.R.T.C.,
K.H.Road, Shanthinagar,
Bengaluru-560027
(Owner-cum-Insurer of K.S.R.T.C Bus Bearing Reg.No.KA-42-F-174)
(By Sri. Adinarayanappa, Adv.,)
2 M.V.C.No.1895/2017
SCCH-7
JUDGMENT
1. This petition is filed under Section 166 of I.M.V. Act.
2. The Brief facts of the petitioner's case is that: on 24.02.2017 at about 03-00 p.m., when he was going on his 3 wheel Bicycle on the left side of the road near Tamasandra Gate, Harohalli, Hobli, Kanakapura Taluk, at that time one K.S.R.T.C Bus bearing Reg., No.KA-42-F-174 came at high speed from his behind in a rash and negligent manner and dashed against him. Petitioner stated that due to the impact he was thrown on the road and sustained severe injuries to his right shoulder. Petitioner stated that immediately after the accident he was shifted to Sanjay Gandhi Hospital wherein fractures were treated conservatively with Cuff and Caller. Petitioner stated that after the accident till this day he is under treatment as outpatient. Petitioner stated that the Doctor who have treated him have opined that the injuries are permanent in nature and advised him that he shall not involve in any physical strain work for a minimum period of four months. Petitioner stated that he is under treatment he reserve his right to furnish additional information regarding permanent disability. Petitioner stated that the Harohalli Police have registered a case against the driver of K.S.R.T.C Bus bearing Reg., No.KA-42-F-174 in their Crime No. 57/2017 after investigation the Police have filed a Charge Sheet against him for offences under Section 279,338 of IPC. Petitioner stated that the said accident occurred due to rash and negligent driving of K.S.R.T.C Bus bearing Reg., No.KA-42-F-174 by its driver. Petitioner stated that at 3 M.V.C.No.1895/2017 SCCH-7 the time of accident the Respondent was R.C.Owner cum insurer of K.S.R.T.C Bus bearing Reg., No.KA-42-F-174 and the driver was in his course of employment under the Respondent. hence the Respondent is liable for payment of compensation. Under these circumstances, the Petitioner prayed to allow the petition.
3. In pursuance of service of Notice, Respondent appeared before the court through their Counsel and filed objection.
4. In the objection statement the Respondent stated that the petition is not maintainable either in law or on facts. Respondent denied entire case of the Petitioner. Respondent denied the age, avocation and income of Petitioner. Respondent stated that the petitioner himself dashed against the Bus by his carelessness. Hence Respondent is not liable to any claim made by the Petitioner. Respondent stated that the driver of the Respondent vehicle was driving the vehicle for so many years, without any complaint. Respondent stated that the driver of the Respondent vehicle was driving with due care and by following traffic rules. The Respondent denied that the Petitioner sustained grievous injuries in the alleged accident. The Respondent sought permission to file additional statement in case of changed circumstances. Under the circumstances the Respondent prayed to dismiss the petition.
5. On the basis of the above pleadings, my predecessor-in-office have framed the following:
[ 4 M.V.C.No.1895/2017 SCCH-7 ISSUES
1. Whether the Petitioner proves that on 24.02.2017 at about 3.00 p.m. while he was going his 3 wheel bicycle on the left side of the road near Tamasandra Gate, Harohalli Hobli, Kanakapura, Suddenly the driver of KSRTC Bus bearing Registration No.KA-42-
F-174, driven the same in a high speed, rash and negligent manner dashed against him and caused accident, resulting which he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
6. In order to prove the case, the Petitioner got examined himself as P.W.1 and got marked 5 documents as per Ex.P1 to P5. Doctor Prakashappa T.H has got examined as P.W.2 and got marked 2 documents as per Ex.P.6 and Ex.P.7. The Respondent adduced evidence of driver by name N.M.Srinivasaiah as RW.1.
7. Heard the arguments.
8. My findings on the above said issues are as under:
Issue No. 1: In the Affirmative.
Issue No. 2: Partly in the Affirmative.
Issue No. 3: As per final order
for the following:
REASONS
9. Issue No.1 : P.W.1 deposed that, on 24.02.2017 at about 03- 00 p.m., when he was proceeding in 3 wheeler Bicycle on the left side 5 M.V.C.No.1895/2017 SCCH-7 of the Kanakapura Taluk, Bangalore Main Road near Tamasandra Gate, Harohalli, Hobli, the driver of K.S.R.T.C Bus bearing Reg., No.KA-42-F-174 came in high speed in a rash and negligent manner and dashed his 3 wheeler Bicycle from its behind. P.W.1 stated that due to the impact he was thrown on the road and sustained fracture lateral end of right clavicle with fracture right scapula. P.W.1 stated that immediately he was shifted to Sanjay Gandhi Hospital wherein fractures were treated conservatively with Cup and Caller, arm pouch, thereafter he was advised to take follow-up treatment in OPD. P.W.1 stated that the said accident occurred due to rash and negligent act driver of K.S.R.T.C Bus. On the contrary Respondent contended that there is no rash and negligent act on the part of driver of K.S.R.T.C Bus and the accident occurred due to negligent act of Petitioner himself.
10. In order to prove his case, P.W.1 has produced Ex.P1- FIR, Ex.P2- Complaint, Ex.P3 Spot Mahazar, Ex.P.4 Charge Sheet and Ex.P.5 Wound Certificate. In the cross-examination by the counsel for Respondent P.W.1 denied the suggestion that one women was pushing 3 wheeler bicycle and he was sitting in the said bicycle. P.W.1 denied the suggestion that KSRTC Bus not dashed against his Bicycle. P.W.1 denied the suggestion that due to loss of balance the 3 wheeler Bicycle fell down as such he sustained injuries. P.W.1 denied the suggestion that on the humanitarian ground the driver and conductor of KSRTC have admitted him to Government Hospital Kanakapura.
6 M.V.C.No.1895/2017SCCH-7
11. The Respondent in order to prove that the accident took place due to the negligence of Petitioner got examined the driver of KSRTC Bus bearing registration No.KA-42-F-174 as RW.1. He deposed that on 24.02.2017 at 1.45 p.m near Thamasandra Gate one Car came from opposite direction in high speed and came to complete right side of the road in order to over take another vehicle, at that time he saw the said vehicle and taken the Bus to extreme left side and at that time one three wheeler Bicycle was proceeding on the left side of road and there is mud road, suddenly the rider of Bicycle taken the Bicycle to the mud road, lost balance and fell on the road. RW.1 stated that KSRTC Bus not dashed against three wheeler Bicycle of Petitioner. RW.1 stated that his vehicle not touched three wheeler Bicycle and there is no damage caused to said vehicle. In the cross-examination by the counsel for Petitioner, RW.1 stated that the Investigating Officer of Harohalli Police station filed Charge Sheet against him. RW.1 denied the suggestion that due to his rash and negligent act the Bus hit against backside of three wheeler Bicycle of Petitioner, thereby petitioner sustained injuries.
12. In this case on going through Ex.P.1 FIR and Ex.P.2 complaint, it is clear that one Ishwara lodged complaint about the accident on 24.02.2017 and based on his complaint Harohalli Traffic Police have registered crime No.57/2017 against the driver of KSRTC Bus Bearing No. No.KA-42-F-174 for the offences punishable under Sections 279 and 337 of IPC. Further Ex.P.3 Spot Mahazar reveals that the accident occurred near Tamasandra Gate Harohalli road. As 7 M.V.C.No.1895/2017 SCCH-7 per Ex.P.5 Wound Certificate issued by Sanjay Gandhi Hospital, the Petitioner sustained Abrasion over Right shoulder and fracture of lateral end of right Clavicle and fracture of scapula in road traffic accident occurred on 24.02.2017. Further as per Ex.P.4 Charge Sheet the Investigating Officer after investigation has filed the Charge Sheet against R.W.1-Srinivasaiah, the driver of KSRTC Bus Bearing No. No.KA-42-F-174 for the offences punishable under Section 279 and 338 of IPC. Under these circumstances, the oral evidence of P.W.1 and documentary evidence clearly establishes that, the accident occurred due to rash and negligent act of driver of KSRTC Bus Bearing No. No.KA-42-F-174 and as a result Petitioner sustained injuries. For the aforesaid reasons, I have answered Issue No.1 in the Affirmative.
13. Issue No. 2: P.W.1 stated that in the accident he sustained fracture of lateral end of right clavicle with fracture of right scapula. P.W.1 stated that immediately after the accident he was shifted to Sanjay Gandhi Hospital, wherein fracture was treated conservatively with cuff and caller, arm pouch and he was Discharged with advise to take treatment after 3 weeks in OPD. P.W.1 stated that he took treatment for a period of 5 months. P.W.1 stated that he has spent sum of Rupees 30,000/- towards medical expenses, conveyance, attendant charges and Special diet. P.W.1 stated that due to accidental injuries he is not able to lift weight in his right hand, unable to raise his right hand and still he is getting severe pain at fracture site. P.W.1 stated that he was running a Hotel under the name and 8 M.V.C.No.1895/2017 SCCH-7 style Hotel Cauvery, near BWSSB Quarters and earning income of Rupees 12,000/- per month. P.W.1 stated that after the accident he is not in position to do work as such he sustained future loss and income. In the cross-examination by the counsel for Respondent P.W.1 admitted that he is physically challenged person. P.W.1 admitted he is having 80% disability and receiving monthly pension from the Government. P.W.1 denied the suggestion that as he is physically challenged person he is not doing any work or earning income. P.W.1 stated that there is no document to show that he is running Hotel and earning income of Rupees 12,000/- per month. Admittedly petitioner is physically challenged person, he could have produced copy of license issued by concerned authority to run the Hotel as well as Bank Pass Book to prove that, he was earning income of Rupees 12,000/- per month.
14. In support of his case Petitioner got examined Doctor Prakashappa.T.H. as P.W.2. He deposed that he examined the petitioner on 03.03.2018 for the purpose of assessment of disability. P.W.2 stated that the Petitioner sustained total permanent disability from right upper limb at 14% and the disability is permanent in nature, with this disability the Petitioner is not able to do any manual work. P.W.2 has produced Ex.P.6 OPD Card and Ex.P.7 X-ray film. In the cross-examination by the counsel for Respondent, P.W.2 stated that he has given treatment to the Petitioner along with team of Doctors. P.W.2 denied the suggestion that he has falsely assessed loss of co- ordinate activities at 12% in order to help the Petitioner. P.W.2 denied 9 M.V.C.No.1895/2017 SCCH-7 the suggestion that after treatment the Petitioner completely recovered from alleged accidental injuries, in order to help him he has added additional points and assessed permanent physical disability from upper limb at 14%. In this case as already discussed there is no material to prove that, Petitioner was running Hotel business and earning income of Rupees 12,000/-. P.W.1 admitted that he is receiving Pension from the government which is provided to the physically challenged person. In this case though the Petitioner stated that he sustained permanent physical disability to his upper limb due to accidental injuries, the Petitioner has not chosen to produce the certificate issued by the Government to physically challenged person, thereby the Court can be in a position to know the real fact and to know whether there was no disability to upper limb prior to the accident and the disability is caused only after accident. Further there is no cogent evidence before the Court to prove that the injuries sustained by Petitioner affected his avocation. Further as per the documents available on record the Petitioner has taken conservative treatment to the fracture of lateral end of right clavicle with fracture of right scapula. Under the circumstances by considering injuries sustained by the Petitioner, treatment taken by him and Hospitalization this Court opines that it is reasonable to award global compensation of Rupees 75,000/- to the Petitioner.
15. The Respondent is the internal insurer of KSRTC Bus bearing No.KA-42-F-174. This Court already came to conclusion that, accident occurred due to rash and negligent act of driver of KSRTC Bus. This Court gone through the decision laid down by the Hon'ble 10 M.V.C.No.1895/2017 SCCH-7 High Court of Karnataka in M.F.A.No.103557/2015 (MV). In the said Judgment the Hon'ble High Court of Karnataka observed that the rate of interest is to be 6% p.a., keeping in line with statutory ceiling limit. Such being the case, Respondent is liable to pay above said compensation to the Petitioner with interest at the rate of 6% P.A. from the date of petition till realization. Accordingly, Issue No.2 is answered Partly in the Affirmative.
16. Issue No. 3: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for global compensation of Rupees 75,000/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.
The respondent being the Internal Insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award. Entire compensation amount is ordered to be released in favour of Petitioner by issuing an account payee cheque with proper identification.
The Advocate's fee is fixed at Rupees 1,000/- Draw award accordingly.
(Dictated to the stenographer, computerized by him, corrected by me and then pronounced in the open Court on 28.04.2018).
(SUJATHA S), IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.11 M.V.C.No.1895/2017
SCCH-7 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S;
P.W.1 Sundaresh
P.W.2 Dr. Prakashappa.T.H.
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S:
Ex.P1 FIR
Ex.P2 Complaint
Ex.P3 Spot Mahazar
Ex.P4 Charge Sheet
Ex.P5 Wound Certificate
Ex.P6 OPD Card
Ex.P7 X-ray Films (2 in nos.)
III. LIST OF WITNESSES EXAMINED FOR THE
RESPONDENTS:
R.W.1. Srinivasaiah.N.M
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
- NIL -
(SUJATHA S),
IX Addl. Small Causes Judge
& XXXIV ACMM, Court of Small causes,
Member, MACT-7, Bangalore.