Bangalore District Court
Sri. Vinod Joseph vs The Managing Director on 5 May, 2017
IN THE COURT OF III ADDL.SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU. (SCCH-18)
Dated: This 5th day of May 2017
Present: SRI.VEERANNA SOMASEKHARA
B.Com, LL.B.,
III ADDL. SENIOR CIVIL JUDGE.
COURT OF SMALL CAUSES,
BANGALORE.
M.V.C.No.1786/2014
PETITIONER: Sri. Vinod Joseph,
S/o.Arulmani
Aged about 32 years,
R/at No.382,
"Sri. Ranganatha Nilaya"
Pipe Line Road,
B.H.E.L Mini Colony,
Mallasandra,
T.Dasarahalli,
Bengaluru-560057.
(By Pleader Sri.BSD)
/Vs./
RESPONDENTS: 1. The Managing Director
BMTC, Central Office,
K.H.Road,
Shanthi Nagar,
Bengaluru-560027.
(By pleader Sri.JR)
2 MVC.No.1786/2014
SCCH-18
2. The New India Insurance Co. Ltd.,
T.P.Claims Hub, 2nd Floor,
Mahalakshmi chambers,
M.G.Road,
Bengaluru-560001.
(By pleader Sri.DMJ)
3. Mr. Manjunath S.
S/o Sathyanarayana,
R/at No.487/1,
Srigandadanagar,
Vishwaneedam Post,
Bengaluru-560091.
(Exparte)
J U D G M E N T
The petitioner has filed this claim petition against the respondents U/S.166 of M.V. Act for seeking compensation of Rs.12,00,000/- with interest for the injuries sustained by him in a road traffic accident.
2. The brief contents of petition are as under:
On 15-3-2014 at about 4.15 P.M., the petitioner was standing on the extreme left side of the 41st cross, BMTC bus stop, Rajajinagar, Bengaluru for waiting the bus, at that time, all 3 MVC.No.1786/2014 SCCH-18 of a sudden the rider of the motorcycle bearing registration No.KA-02-EX-463 ride the same in a rash and negligent manner and dashed to the petitioner. Due to the said impact, the petitioner fell down on the road and at the same time, all of a sudden, driver of BMTC bus bearing Reg.No.KA-51-F-641 drive the same in a rash and negligent manner and lost control over his vehicle and as such, the front wheel of the bus ran over on the right foot of the petitioner. Due to the impact, the petitioner has sustained simple as well as grievous injuries. Thereafter, the public gathered at the spot have shifted the injured to ESI Hospital, Bengaluru, wherein, he has taken treatment as an inpatient. After discharge from the hospital and as per the advice of the doctor, the petitioner has taken follow-up treatment as an outpatient and till today, he is taking treatment as an outpatient. The contention of the petitioner is that, he has spent an amount of Rs.25,000/- towards medical expenses and other incidental charges.4 MVC.No.1786/2014
SCCH-18
3. The contention of petitioner is that, he was hale and healthy at the time accident, aged about 32 years, working as a sales executive at M/s MedPlus, Rajajinagar and earning Rs.10,700/-p.m. Further the contention of the petitioner is that, due to the accidental injuries, he has suffered lot and he has suffered disablement and as such, he is not in a position to work as he was doing earlier to the accident.
4. The respondent No.1 is the owner of the alleged BMTC Bus bearing Reg.No.KA-51-F-641 and the respondent No.3 is the owner of the alleged motorcycle bearing Reg.No.KA-02-EX-463 and the respondent No.2 is the insurer of the said motorbike and the policy was in force as on the date of accident. The accident has occurred due to rash and negligent driving of the driver of the alleged Bus and the rider of the motorcycle and as such, all the respondents are jointly and severally liable to pay compensation to the petitioner. Contending the above facts, he prays to grant for compensation of Rs.12,00,000/- with interest and cost.
5 MVC.No.1786/2014
SCCH-18
5. In response to the petition notice, the respondent No.1 and 2 have appeared before the court through their respective counsel and filed the objection statement. The respondent No.3 has not appeared before the court. Accordingly, he was placed exparte.
6. The brief contents of objection statement of respondent No.1 are as under:
The respondent No.1 has contended that, the claim petition filed by the petitioner is not maintainable either in law or on facts. Further the respondent No.1 contended that, the alleged accident has not occurred due to rash and negligent driving of the driver of the alleged BMTC bus, on the other hand, the alleged accident has occurred due to rash and negligent riding of the rider of the alleged motorcycle. Further he contented that, the petition is bad for non-joinder of necessary parties, as the owner and insurer of the motorcycle were not arrayed as respondents in the petition. Further the respondent No.1 has denied the age, occupation and income of 6 MVC.No.1786/2014 SCCH-18 the petitioner and injuries sustained by him and medical expenses incurred by him and disablement suffered by him. Contending the above facts, he prays to dismiss the petition as against him with cost.
7. The brief contents of objection statement of respondent No.2 are as under:
The claim petition filed by the petitioner is not maintainable either in law or on facts. Further he contended that, the alleged accident has not occurred due to rash and negligent riding of the rider of the motorcycle. On the other hand, on perusal of the contents of petition, it shows that, the alleged accident has occurred due to sole negligence on the part of the BMTC Bus. Further he contended that, the rider of the alleged vehicle was not having valid and effective driving licence to drive the vehicle as on the date of accident. Further he contended that, the owner of the vehicle and the concerned police have not complied the mandatory provision of Sec.134(c) and 158(6) of MV Act. Further the respondent No.2 has denied 7 MVC.No.1786/2014 SCCH-18 the age, occupation and income of the petitioner and injuries sustained by him and medical expenses incurred by him and disablement suffered by him. Contending the above facts, he prays to dismiss the petition as against him with cost.
8. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioner proves that the accident that occurred on 15-03-2014 at about 4.15p.m. near BMTC Bus stop, 12th Main, Rajajinagar, Bengaluru was caused due to rash and negligent driving of the driver of the involving BMTC Bus bearing Reg.No. No.KA-51-F-641 and Motor Cycle bearing Reg.No.KA-42-EX-463 by its driver/rider and dashed against the petitioner, due to the impact he fell down and sustained grievous injuries?
2. Whether the 1st respondent proves that, the driver of the Motor Cycle bearing Reg.No.KA-42-
EX-463 was not holding valid and effective driving licence as on the date of accident?
3. Whether the petitioner is entitled for compensation ? If so, for what amount and from whom?
4. What order or award?
8 MVC.No.1786/2014
SCCH-18
9. In order to prove the case, the petitioner has examined himself as PW-1 and got marked the documents as Ex-P-1 to 11 & 15. Further in support of his evidence, he has examined the senior medical record technician of ESI hospital, as PW-2 and got marked the documents as Ex-P-12 to 14. Further to prove the disablement, he has examined Dr.S.Ramachandra as PW-3 and got marked the documents as Ex-P-16 & 17.
10. To disprove the case of the petitioner and to prove the defence, the driver of the BMTC bus has examined himself as RW-1 and got marked the document as Ex-R-1. Further the official of the respondent No.2-Insurance company has examined as RW-2 and got marked the documents as Ex-R-2 to 9.
11. Heard the arguments and perused the records.
12. My findings to the aforesaid issues are as follows:
Issue No.1: In the Affirmative Issue No.2: In the negative Issue No.3: In the Partly Affirmative Issue No.4: As per final order for the following:9 MVC.No.1786/2014
SCCH-18 R E A S O N S
13. ISSUE NO.1:- During course of arguments, the learned counsel for the petitioner argued by reiterating the contents of petition and also evidence put forth by PW-1 to 3. Further he argued that, the defence of the respondent No.1 is that, the alleged accident has not occurred due to rash and negligent driving of the driver of the BMTC bus, on the other hand, the accident has occurred due to rash and negligent riding of the rider of the motorbike. But the contention of the respondent No.2 is that, the alleged accident has not occurred due to rash and negligent riding of the rider of the motorcycle, on the other hand, the alleged accident has occurred due to rash and negligent driving of the driver of the BMTC bus. To prove the said defence, though the respondent No.1 has examined the driver of the bus as RW-1 and the respondent no.2 has examined its official as RW-2, but they are not the eyewitnesses to the incident and their evidence is not supported with proper documents and as such, the evidence of RW-1 and 2 is not 10 MVC.No.1786/2014 SCCH-18 acceptable one. Further he argued that, to prove the rash and negligent driving of the driver of both the vehicles, the petitioner has produced the copy of police investigation papers and on perusal of contents of those documents, it is clear that, the alleged accident has occurred due to negligence on the part of the driver of bus and rider of the motorbike. Further he argued that, due to the accidental injuries, the petitioner's right leg great toe was amputed and as such, he has suffered disablement and the said disablement may affect on the occupation of the petitioner. Further he argued that, the petitioner has proved his occupation and income as contended in the petition by producing oral and documentary evidence and also proved his case as contended in the petition by producing proper documents. Accordingly, he prays to allow the petition.
14. In support of his arguments, the learned counsel for the petitioner has relied upon the following citations:
1. 2010 ACJ 760 (N. Obalaranga V/s United India Ins.Co.Ltd) 11 MVC.No.1786/2014 SCCH-18
2. 2007 ACJ 13 (New India Assurance Co.Ltd V/s Papamma and another)
3. 2012 ACJ 191 (Laxman V/s Oriental Insurance Co.Ltd and another)
4. 2011 ACJ 1699 (Rudra V/s National Insurance Co.Ltd and another)
5. 2014 ACJ 648 (M.D.Jacob V/s United India Insurance Co.Ltd and another)
6. 2016 ACJ 475 (New India Assurance Co.Ltd V/s Velumurugan V. and another)
15. Per contra, the learned counsel for the respondent No.1 argued by reiterating the contents of objection statement filed by the respondent No.1 and also evidence put forth by RW1. Further he argued that, on perusal of the contents of copy of police investigation papers produced by the petitioner, itself shows that, the alleged accident has occurred due to sole negligence on the part of the rider of the motorcycle and also negligence on the part of the petitioner. Further he argued that, if at all, the alleged motorcycle has not caused the accident to the petitioner, then question of dashing the BMTC 12 MVC.No.1786/2014 SCCH-18 bus to the petitioner does not arise and as such, the alleged accident has occurred due to sole negligence on the part of the petitioner and the rider of the motorbike. Further he argued that, the petitioner has failed to prove his contention as against the respondent No.1. On the other hand, the respondent No.1 has proved his defence by examining the witness and also by producing the documents and by extracting the admission from the petitioner. Contending the above facts, he prays to dismiss the petition as against the respondent No.1 with cost.
16. On the other hand, the learned counsel for the respondent No.2 argued by reiterating the contents of objection statement filed by the respondent No.2 and also evidence put forth by RW2. Further he argued that, as per the version of the petitioner, the alleged accident has occurred due to negligence on the part of the rider of the motorcycle and driver of the BMTC bus. But on perusal of the medical records produced by the petitioner and respondent No.2, it is clear that, the petitioner has sustained injuries while boarding the bus and 13 MVC.No.1786/2014 SCCH-18 as such, the alleged motorcycle has not at all caused the accident to the petitioner as contended in the petition. Further he argued that, on perusal of the evidence of PW-1 coupled with contents of copy of police investigation papers itself shows that, the alleged accident has occurred due to sole negligence on the part of the driver of the BMTC bus and as such, the respondent No.2 Insurance company is not liable to pay compensation to the petitioner. Further he argued that, the petitioner has failed to prove his case as contended in the petition by producing proper documents. Contending the above facts, he prays to dismiss the petition as against the respondent No.2 with cost.
17. On rival contention urged by the counsel for the petitioner, respondent No.1 and 2, I intend to discuss the case on merits.
On perusal of the evidence available on records, it reveals that, to prove the case, the petitioner has examined himself as PW-1 and he has stated in his evidence by reiterating the contents of petition. Further in support of his evidence, he has 14 MVC.No.1786/2014 SCCH-18 produced the documents and the same are marked as Ex-P1 to 11 and 15.
18. Thereafter, the counsel for the respondent No.1 and 2 have cross-examined the PW-1 at length. In the cross examination, the PW-1 has clearly stated at page No.5, 7, 8 and 13 that:-
"I just went front two steps in the foot path to board the bus from south to north. Foot path is at east. I did not board the bus since scooter already dashed me from my back side in the one way"
Further he has stated that:-
"C¥ÀWÁvÀªÀÅ ºÉÃUÉ D¬ÄvÉAzÀÄ PÉüÀ¯ÁV, £Á£ÀÄ §¸ï ¤¯ÁÝtzÀ°è §¸ïUÉAzÀÄ PÁAiÀÄÄwÛzÀÄÝ, D ¸ÀªÀÄAiÀÄzÀ°è M£ï-ªÉà gÀ¸ÉÛ¬ÄAzÀ ¨ÉÊPï£ÀÄß CzÀgÀ ¸ÀªÁgÀ ªÉÃUÀªÁV ZÀ¯Á¬Ä¹PÉÆAqÀÄ §AzÀÄ, £À£ÀUÉ vÁV¹, C¥ÀWÁvÀ ªÀiÁrzÀÄÝ, DUÀ £Á£ÀÄ PÀ¼É ÀUÉ ©¢ÝzÀÄÝ, D ¸ÀªÀÄAiÀÄzÀ°è ©.JA.n.¹ §¸ï ZÁ®PÀ£ÀÄ vÀ£Àß §¸ï£ÀÄß CeÁUÀgÀÆPÀvɬÄAzÀ ZÀ¯Á¬Ä¹PÉÆAqÀÄ §AzÀÄ, E£ÉÆßAzÀÄ ªÁºÀ£ÀªÀ£ÀÄß »A§¢ ºÁPÀ®Ä ºÉÆÃV, £À£Àß PÁ°£À ªÉÄÃ®É §¸ï£À UÁ° Kj ºÉÆÃV C¥ÀWÁvÀªÁVgÀĪÀÅzÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ.
¨ÉÊPï ¸ÀªÁgÀ£ÀÄ vÀ£Àß ¨ÉÊPï£ÀÄß ªÉÃUÀªÀÁV ZÀ¯Á¬Ä¹PÉÆ AqÀÄ §AzÀÄ £À£ÀUÉ vÁV¹, C¥ÀWÁvÀ ªÀiÁrzÀÄÝ, CzÀjAzÀ C¥ÀWÁvÀªÁUÀ®Ä ©.JA.n.¹. §¸ï ZÁ®PÀ£ÀÄ AiÀiÁªÀÅzÀÉà jÃw 15 MVC.No.1786/2014 SCCH-18 PÁgÀt£ÀÄ EgÀĪÀÅ¢®èªÉAzÀgÉ ¸ÀjAiÀÄ®è. C¥ÀWÁvÀªÀÅ ¸ÀÆÌlgï ¸ÀªÁgÀ£À vÀ¦à¤AzÀ DUÀzÉÃ, ©.JA.n.¹. §¸ï ZÁ®PÀ£ÀÄ £À£ÀUÉ §¸ï£ÀÄß vÁV¹zÀÄÝ ªÀÄvÀÄÛ £À£Àß ¤®ðPÀëvÀ£ÀªÀÅ PÀÆqÁ CzÀgÀ°èzÀÄÝ, CzÀjAzÀ C¥ÀWÁvÀ DVgÀĪÀÅzÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
On perusal of the above evidence, it reveals that, the defence of the respondent No.1 is that, the alleged accident has not occurred due to rash and negligent driving of the driver of the alleged BMTC bus, on the other hand, the accident has occurred due to sole negligence on the part of the rider of the motorcycle. On the other hand, the defence of the respondent No.2 is that, the alleged motorcycle has not at all caused the accident to the petitioner and as such, the alleged accident has not occurred due to negligence on the part of the rider of the motorcycle as contended in the petition.
19. To prove the said defence, the respondent No.1 has examined the driver of the BMTC bus as RW-1, who has stated in his evidence by reiterating the contents of objection 16 MVC.No.1786/2014 SCCH-18 statement filed by the respondent No.1 and also the above said defence.
20. Thereafter, the counsels for the petitioner and the respondent No.2 have cross-examined the RW-1 at length. In the cross examination, the RW-1 has clearly admitted at page No.5, 6 and 10 that:-
" £Á£ÀÄ §¸ï ¤°è¸ÀĪÀ ªÉÆzÀ¯Éà CfðAiÀÄ°è PÁtô¹zÀ ¨ÉÊPï ¸ÀªÁgÀ£ÀÄ CfðzÁgÀ¤UÉ ¨ÉÊPï vÁV¹ C¥ÀWÁvÀ ªÀiÁrzÀ£ÉAzÀgÉ ¸Àj. C¥ÀWÁvÀzÀ §UÉÎ vÀ¤SÉ PÉÊUÉÆAqÀ ¥ÉÇðøÀgÀÄ ¨ÉÊPï ¸ÀªÁgÀ ªÀÄvÀÄÛ £À£ÀߣÀÄß DgÉÆæ 1 ªÀÄvÀÄÛ 2 JAzÀÄ zÉiÁõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ°è PÁtô¹ £ÁåAiÀiÁ®AiÀÄPÉÌ zÉiÁõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ£ÀÄß ¸À°è¹gÀĪÀgÉAzÀgÉ ¸Àj. gÀ¸ÉÛ ¸ÀAZÁj ¤AiÀĪÀÄzÀAvÉ £Á£ÀÄ §¸ï£ÀÄß ZÀ¯Á¬Ä¹PÉÀÆAqÀÄ ºÉÆÃVzÀÝ°è CfðzÁgÀ¤UÉ DVzÀÝ C¥ÀWÁvÀªÀ£ÀÄß vÀ¦à¸À§ºÀÄzÁVvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj ¸ÀªÀÄAiÀÄiÀzÀ°è F PÉù£À CfðzÁgÀ ¤ªÀÄä §¸ï£ÀÄß KgÀ®Ä §AzÀgÉAzÀÄ ¸ÀÆa¸À¯ÁV, ¸ÀÆZÀ£É ¸ÀjAiÀÄ®è. §¸ï£ÀÄß KgÀ®Ä §gÀÄwÛzÀÝ£ÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ. CfðzÁgÀ£ÀÄ ºÁdgÀÄ¥Àr¹zÀ J¯Áè ªÉÄrPÀ¯ï zÁR¯ÉUÀ¼À°è C¥ÀWÁvÀªÁUÀ®Ä £Á£ÀÄ ¤®ðPÀëåvÀ£À¢AzÀ §¸Àì£ÀÄß ZÀ¯Á¬Ä¹zÀÄÝ PÁgÀtªÉ£ÀAzÀÄ £ÀªÀÄÆzÀÄ EzÀÄÝ, CzÀjAzÀ C¥ÀWÁvÀªÀÅ ¥ÀÇtð £À£Àß ¤®ðPÀëåvÀ£À¢AzÀ DVgÀĪÀÅzÉAzÀgÉ ¸ÀjAiÀÄ®è. C¥ÀWÁvÀªÀÅ ¨ÉÊPï 17 MVC.No.1786/2014 SCCH-18 ¸ÀªÁgÀ£À vÀ¦à¤AzÀ DUÀzÀÉÃ, £À£Àß ¥ÀÇt𠤮ðPÀëåvÀ£À¢AzÀ DVzÀÝgÀÆ PÀÆqÀ, £ÀªÀÄä E¯ÁSÉ CfðzÁgÀjUÉ ¥ÀjºÁgÀ PÉÆqÀ®Ä ¨ÁzÀsåªÁUÀĪÀÅzÉAzÀÄ w½zÀÄ, £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄªÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
On perusal of the above evidence, it reveals that, after the accident, the concerned police have registered a case against the RW-1 and also the rider of the motorcycle and after completion of investigation, the concerned police have filed the charge sheet against the RW-1 and the rider of the motorcycle. Further on perusal of the evidence of RW-1, it reveals that, the evidence of RW-1 is not supported with proper documents to disbelieve the version of the petitioner.
21. Further on perusal of the records, it reveals that, to prove the defence and to disprove the version of the petitioner, the respondent No.2 has examined its official as RW-2, who has stated in his evidence by reiterating the contents of objection statement filed by the respondent No.2 and also the above said defence.
18 MVC.No.1786/2014
SCCH-18
22. Thereafter, the counsels for the petitioner and the respondent No.1 have cross-examined the RW-2 at length. In the cross examination, the RW-2 has clearly admitted at page No.6, 7 and 9 that:-
"¤.¦.2 JAzÀÄ UÀÄgÀÄw¹zÀ ¦ügÁå¢AiÀÄAvÉ CfðzÁgÀ£ÁzÀ «£ÉÆÃzï eÉÆøɥsï EªÀgÀÄ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è §¸ï KgÀ®Ä DvÀ£ÀÄ ºÉÆÃUÀĪÁUÀ ¨ÉÊPï £ÉÆÃAzÀtô ¸ÀASÉå PÉJ-02-EJPïì-462 ªÁºÀ£ÀªÀÅ eÉÆøÉÃ¥sï EªÀjUÉ vÁVzÀÄÝ CzÀjAzÀ DvÀ£ÀÄ PɼÀUÉ ©zÀÝ£ÉAzÀÄ ªÀÄvÀÄÛ D ªÉüÉUÉ C°è ºÉÆÃUÀÄwÛzÀÝ ©.JA.n.¹. §¸ï ZÁ®PÀ£ÀÄ ªÁºÀ£ÀªÀ£ÀÄß ¤°è¸ÀzÉà «.eÉÆøɥsï EªÀgÀ PÁ°£À ªÉÄÃ¯É ªÁºÀ£À ZÀ¯Á¬Ä¹PÉÆAqÀÄ ºÉÆÃzÀ£ÉAzÀÄ PÁtô¹gÀĪÀ£ÉAzÀgÉ ¸Àj.
C¥ÀWÁvÀzÀ §UÉÎ UÀÄ£Éß zÁR°¹PÉÆAqÀ ¥ÉÇðøÀgÀÄ ¸ÀÆPÀÛ vÀ¤SÉ PÉÊUÉÆAqÀÄ ªÉÄÃ¯É ºÉýzÀ ¨ÉÊPï ¸ÀªÁgÀ£À£ÀÄß 1£Éà DgÉÆæAiÉÄAzÀÄ zÉiÁõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ°è PÁtô¹gÀĪÀgÉAzÀÄ ¸ÀÆa¸À¯ÁV, ºËzÀÄ, DzÀgÉ ¥ÉÇðøÀgÀÄ ¤ÃªÀÅ ºÉýzÀAvÉ ¸ÀÆPÀÛ vÀ¤SÉ PÉÊUÉÆAr®èªÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ.
CfðAiÀÄ°è PÁtô¹zÀ C¥ÀWÁvÀªÁUÀ®Ä ©JAn¹ §¸ï ZÁ®PÀ£ÀÄ AiÀiÁªÀÅzÉà jÃw PÁgÀt£ÀÄ EgÀzÉÃ, ¨ÉÊPï ¸ÀªÁgÀ£À ¥ÀÇtð vÀ¦à¤AzÀ C¥ÀWÁvÀªÁVgÀĪÀÅzÉAzÀgÉ ¸ÀjAiÀÄ®è."
On perusal of the above evidence it reveals that, the RW-2 is not eyewitness to the alleged accident and as such, the 19 MVC.No.1786/2014 SCCH-18 evidence of RW-2 is not much helpful to disbelieve the version of the petitioner.
23. Further to prove the rash and negligent driving of the driver of the alleged BMTC Bus and the rider of the motorcycle, in support of oral evidence, the petitioner has relied upon the copy of police investigation papers and the same are marked as Ex-P-1 to 6. On perusal of Ex-P-1, 2 and 6 i.e. copy of FIR, complaint and charge sheet, it reveals that, Rajajinagar traffic police have registered a case against the driver of the alleged BMTC bus and the rider of the motorcycle and after completion of investigation, the concerned police have filed the charge sheet against the driver of the said BMTC bus and the rider of the motorcycle.
24. The specific contention of the respondent No.2 is that, the alleged motorcycle has not caused the accident to the petitioner, on the other hand, the petitioner has sustained injuries while boarding the bus. To prove the said facts, the respondent No.2 has relied upon the copy of MLC register and 20 MVC.No.1786/2014 SCCH-18 the same is marked as Ex-R-9. On perusal of Ex-R-9, wherein, the history of accident as under:
" Alleged H/o RTA on 15-3-2014 at about 4.15 P.M. near old Police Station Bus Stop, Rajajinagar, Bengaluru. Patient was walking on the road and the BMTC bus wheels ran over the patient's right foot. Patient sustained injury to right foot."
But on perusal of Ex-P-1 and 2 i.e. copy of FIR and complaint, it reveals that, the alleged accident has occurred on 15-3-2014 at about 4.15 P.M. and the complaint came to be lodged on the same day at about 7.30 P.M. and as such, it is clear that, within 3 hours from the occurrence of accident, the complaint came to be lodged before the concerned police. Further on perusal of Ex-P-2 i.e., copy of complaint, it reveals that, the petitioner has lodged the said complaint before the concerned police in the hospital, while he was taking treatment, wherein, he has clearly mentioned as under: 21 MVC.No.1786/2014
SCCH-18 " 41£Éà PÁæ¸ï gÀ¸ÉÛAiÀÄ §½ EgÀĪÀ §¸ï ¤¯ÁÝtzÀ §½ §¹ìUÁV PÁAiÀÄÄvÁÛ ¤AwzÉÝãÀÄ. ¨ÉÃgÉ ªÀiÁUÀð ºÉÆÃUÀĪÀ §¸ÀÄì §AzÀÄ ¤¯ÁÝtzÀ°è ¤°è¹zÀÄÝ, CzÀgÀ »A¨sÁUÀzÀ°è £ÀªÀÄä ªÀÄ£É PÀqÉ ºÉÆÃUÀĪÀ gÀÆmï £ÀAB264 §gÀÄwÛzÀÄÝ, ¤AwzÀÝ §¸Àì£ÀÄß NªÀgïmÉPï ªÀiÁr ºÉÆÃUÀÄwÛzÀÄÝ, £Á£ÀÄ §¸Àì£ÀÄß ºÀvÀÛ®Ä ªÀÄÄAzÉ ºÉÆÃzÁUÀ 41£Éà PÁæ¸ï PÀqɬÄAzÀ GvÀÛgÀ¢AzÀ zÀQëtzÀ PÀqÉUÉ PÉJ-02-EJPÀëì-463 ªÉÆÃmÁgÀÄ ¸ÉÊPÀ¯ï ¸ÀªÁgÀ vÀ£Àß ªÁºÀ£ÀªÀ£ÀÄß CeÁUÀgÀÆPÀvɬÄAzÀ ¸ÀAZÁgÀzÀ «gÀÄzÀÞ ¢QÌUÉ §®¨sÁUÀPÉÌ wgÀÄV¹, £À£ÀUÉ rQÌ ªÀiÁrzÁUÀ, £Á£ÀÄ PɼÀUÉ ©¢ÝzÉÝ. EzÉà ªÉüÉAiÀÄ°è ¸ÀzÀj §¸ï £ÀA§gï PÉJ-57- J¥sï-641 ©JAn¹ §¹ì£À ZÁ®PÀ£ÀÆ ¸ÀºÀ vÀ£Àß ªÁºÀ£ÀªÀ£ÀÄß ¤°è¸ÀzÀÉÃ, CeÁUÀgÀÆPÀvɬÄAzÀ £À£Àß §® ¨sÁUÀzÀ ¥ÁzÀzÀ ªÉÄÃ¯É ºÀwÛ¹, gÀPÀÛ UÁAiÀÄUÉƽ¹ ºÉÆgÀlĺÉÆÃzÀ£ÀÄ." On perusal of the above contents it is clear that, at the time of accident, the petitioner was waiting for the bus and at that time, the alleged BMTC bus came to the spot and then, the petitioner was tried to board the bus and at that time, the alleged motorcycle dashed to the petitioner and due to which, the petitioner fell down on the road and at that time, the driver of the BMTC bus has drive the bus in a negligent manner and as such, the wheel of the said bus ran over on the right leg of the 22 MVC.No.1786/2014 SCCH-18 petitioner. Considering the above facts and looking to the contents of complaint and for the above reason, I am of the opinion that, if the rider of the motorcycle has not caused the accident to the petitioner, then question of petitioner falling down on the side of the road does not arise and at the same time, if the driver of the BMTC bus has taken some care and caution, then he would have avoided the accident and wheel of the bus would not have ran over on the right leg of the petitioner.
25. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the accident has occurred due to composite negligence on the part of the driver of the alleged BMTC bus and the rider of the motorcycle. However, the degree of negligence on the part of the driver of the BMTC bus is lesser than the rider of the motorcycle bearing Reg.No.KA-42-EX-463.
26. Considering the above facts and for the above reason, I assess the negligence on the part of the driver of the BMTC 23 MVC.No.1786/2014 SCCH-18 bus is at 40% and the negligence on the part of the rider of the motorcycle is at 60%. Considering the above facts and on perusal of evidence of PW-1 coupled with documents and for the above reason, I am of the opinion that, the petitioner has proved that, the alleged accident has occurred due to composite negligence on the part of the driver of the BMTC bus and the rider of the motorcycle as contended in the petition by producing oral and documentary evidence.
27. Further on perusal of Ex.P.7 i.e., copy of wound certificate, it shows that, the petitioner has sustained simple as well as grievous injuries in the above said accident.
28. Considering the above facts and circumstance of the case and on appreciation of evidence of PW-1, RW-1 and 2 coupled with documents and for the above reason, I am of the opinion that, the petitioner has proved this issue by producing sufficient documents. Accordingly, I answer this issue in the affirmative.
24 MVC.No.1786/2014
SCCH-18
29. ISSUE NO.2:- The specific contention of the respondent No.2 is that, the rider of the alleged motorcycle bearing Reg.No.KA-42-EX-463 was not having driving licence to ridden the motorcycle as on the date of accident. To prove the said fact, the respondent No.2 has not produced any proper documents. On the other hand, on perusal of the contents of Ex-P-6 i.e. copy of charge sheet wherein, the concerned police have not mentioned that, the rider of the motorbike was not having driving licence to ridden the motorbike. Considering the above facts and for the above reason, I am of the opinion that, the oral version of the respondent No.2 is not acceptable one. For the above reason, I am of the opinion that, the respondent No.2 has failed to prove his contention that, the rider of the motorcycle was not having driving licence to ride the motorcycle as contended in the objection statement by producing proper documents. Accordingly, I answer this issue in the negative.
30. ISSUE NO.3:- The specific contention of the petitioner is that, he was hale and healthy at the time of 25 MVC.No.1786/2014 SCCH-18 accident, aged about 32 years, working as a sales executive at M/s. Med Plus, Rajajinagar, Bengaluru and earning Rs.10,700/-p.m.. Further the contention of the petitioner is that, he has sustained grievous injuries in the accident and due to the accidental injuries, he has suffered disablement and he is not in a position to work as he was doing earlier to the accident and as such, he has lost the earning capacity.
On the other hand, the respondents have denied the above contention of the petitioner in toto.
31. To prove the occupation and income, the petitioner has relied upon the document at Ex-P-9 i.e. pay slip for the month of January 2014. On perusal of Ex-P-9 i.e. pay slip, it shows that, at the time of accident, the petitioner was working as a senior pharamacy aid at Optival Health Solutions Pvt.Ltd., Bengaluru and drawing salary of Rs.11,112/-p.m. Further on perusal of copy of complaint, wherein, the occupation of the petitioner is shown as sales man at Med plus. Considering the above facts and looking to the contents complaint and contents 26 MVC.No.1786/2014 SCCH-18 of pay slip, it clear that, at the time of accident, the petitioner was working as a sales man at Med plus at Bengaluru and drawing salary of R.11,112/-p.m. and as such, if the income of the petitioner is considered as Rs.11,000/- p.m. certainly it would meet the ends of justice.
32. To prove the disablement suffered by the petitioner, he has examined DR. S. Ramachandra as PW-3, who has stated in his evidence regarding the injuries sustained by the petitioner and difficulties facing by him. Further he has stated that, the petitioner has suffered permanent residual physical disability to the extent of 15%. In support of his evidence, he has proved the documents and the same are marked as Ex-P16 and 17.
33. Thereafter, the counsel for the respondent No.1 has cross examined the PW-3 at length. On perusal of the entire evidence of PW-3, it reveals that, he is not a treated doctor and he has not treated the petitioner immediately after the accident. Further, as stated above that, as per the version of 27 MVC.No.1786/2014 SCCH-18 the PW-3, the petitioner has suffered disability to the extent of 15%.
34. At this stage, I have perused the photos produced by the petitioner and the same are marked as Ex-P11. On perusal of Ex-P11-Photos, it shows that, the petitioner's right leg great toe was amputated and some extent of right foot was crushed.
35. Further at this stage, I have gone through the Schedule I, Part II, Sl.No.38 of Employees Compensation Act, which reads as under:-
" Sl.No.38 (B) Toes of right or left foot - Great toe - Sl.No.39 - Through metatarso-Phalanges Joint - 14% Loss of earning capacity."
Considering the above facts and on perusal of evidence of PW-3 coupled with EX.P.11- photos and looking to the nature of injuries and for the above reason, I am of the opinion that, if the extent of disability suffered by the petitioner is considered as 12% to the whole body certainly it would meet the ends of justice.
28 MVC.No.1786/2014
SCCH-18
36. To prove the age, the petitioner has relied upon the copy of Aadhar Card and the same is marked as Ex-P10, wherein, the date of birth of the petitioner is mentioned as for the year 1980 and the same is considered as date of birth of the petitioner, then it is clear that, as on the date of accident, the petitioner was aged about 33 years. Hence, the proper multiplier applicable to the case on hand is 16.
37. The income of the petitioner is considered as Rs.11,000/- P.M. and the disability is considered as 12% and the multiplier 16 is applied, then the loss of income due to disability comes to Rs.2,53,440/-. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.2,53,000/- under the head of loss of future earnings.
38. Further on perusal of Ex-P7 i.e., copy of wound certificate, it shows that, the petitioner has sustained fracture of right great toe terminal phalynax and sustained degloving injury to right foot. Further on perusal of Ex-P8 i.e., Discharge 29 MVC.No.1786/2014 SCCH-18 summary, it reveals that, the petitioner has taken treatment as an inpatient for a period of 27 days at ESIC Hospital, Bengaluru. Considering the above facts and looking to the nature of above injuries, I deem it just and reasonable to grant for compensation of Rs.35,000/- under the head of pain and sufferings.
39. Further as stated above that, the petitioner has suffered disability to the extent of 12% to the whole body and he was a salesman at Med Plus Firm. Considering the above facts, I am of the opinion that, the said disability may affect some extent on the occupation of the petitioner and the petitioner may suffered throughout his life along with the said disability. For the above reason, I deem it just and reasonable to grant for compensation of Rs.25,000/- under the head of loss of amenities.
40. Further as stated above that, the petitioner has taken treatment as an inpatient for a period of 27 days at ESIC Hospital, Bengaluru. Looking to the period of hospitalization, 30 MVC.No.1786/2014 SCCH-18 I deem it just and reasonable to grant for compensation of Rs.20,000/- under the head of attendant, nourishment and conveyance charges.
41. Further to prove the medical expenses incurred by the petitioner, he has not produced the medical bills and as such, the petitioner is not entitled for compensation under the head of medical expenses.
42. The contention of the petitioner is that, due to the accidental injuries, he has left the Job and as such, he has lost the income. To prove the said fact, the petitioner has relied upon the document at Ex-P-15 i.e., Letter issued by DGM of Optival Health Solutions. On the other hand, on perusal of the evidence of PW-1, it reveals that, the respondent No.1 and 2 have disputed the genuineness of the said document and to that, the counsel for the respondent No.1 and 2 have cross examined the PW-1 at length. Considering the above facts and for the above reason, I am of the opinion that, when the respondents have disputed the genuineness of the document, then it was the 31 MVC.No.1786/2014 SCCH-18 duty of the petitioner to prove the contents of the said document by examining the author of it. But the petitioner did not do so. On the other hand, as stated above that, the petitioner has sustained fracture of right leg great toe and sustained crush injury to right foot and as such, due to the accidental injuries, the petitioner might not have attended his regular work atleast for a period of 3 months as he was hospitalized for a period of 27 days. Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.44,000/- under the head of loss of income during laid up period and rest period.
43. Further on perusal of Ex-P11-Photos, it shows that, a big scar mark is found on the right foot of the petitioner and as such, the said scar mark may cause some disfigurement to the petitioner. For the above reason, I am of the opinion that, if some amount is awarded under the head of disfigurement certainly it would meet the ends of justice. For the above 32 MVC.No.1786/2014 SCCH-18 reason, I deem it just and reasonable to grant for compensation of Rs.25,000/- under the head of disfigurement.
44. Considering the above facts and circumstances of the case and for the above reason, I am of the opinion that, the petitioner is entitled for total compensation of Rs.4,02,000/- under the following heads:
Compensation heads Compensation
amount
1. Towards loss of future earnings Rs. 2,53,000/-
2. Towards pain and sufferings Rs. 35,000/-
3. Towards loss of amenities Rs. 25,000/-
4. Towards attendant, Nourishment and Rs. 20,000/-
conveyance charges
5. Towards Loss of loss of income during Rs. 44,000/-
laid up period & rest period
6. Towards disfigurement Rs. 25,000/-
Total Rs. 4,02,000/-
45. LIABILITY: On perusal of the contents of petition and contents of objection statement, it reveals that, the respondent No.1 is the owner of the alleged BMTC Bus bearing Reg.No.KA-51-F-641 and the respondent No. 2 and 3 are the insurer and the owner of the alleged motorcycle bearing 33 MVC.No.1786/2014 SCCH-18 Reg.No.KA-02-EX-463. Further on perusal of Ex-R3 i.e., copy of policy, it shows that, the policy was valid as on the date of accident. Further as stated above that, the accident has occurred due to rash and negligent driving of the driver of the BMTC Bus bearing Reg. No. KA-51-F-641 and the rider of the motor bike bearing Reg.No.KA-02-EX-463 and the negligence of the driver of the BMTC Bus is assessed at 40% and the negligence on the part of the rider of the above said motorbike is assessed at 60%. Hence, the respondent No.1 is the owner of the BMTC Bus is liable to pay 40% of Rs.4,02,000/- which comes to Rs.1,60,800/- and the respondent No.2 and 3 are jointly and severally liable to pay compensation of 60% of Rs.4,02,000/- which comes to Rs.2,41,200/- to the petitioner. However, the respondent No.1 and 2 are the owner of the bus and the insurer of the alleged bike are liable to pay the above mentioned compensation amount with interest @ 9% P.A. from the date of petition till the date of deposit. Accordingly, I answer the issue No.3 in the partly affirmative.
34 MVC.No.1786/2014
SCCH-18
46. ISSUE NO.4: In view of above discussion on issue Nos.1 to 3, I proceed to pass the following;
O R D E R The claim petition filed by the petitioner U/S 166 of MV Act is hereby partly allowed with cost.
The petitioner is entitled for compensation of Rs.4,02,000/-with interest @9% P.A. from the date of petition till the date of deposit.
The respondent No.1 to 3 are jointly and severally liable to pay compensation amount to the petitioner. However, the respondent No.1 and 2 are hereby directed to deposit the compensation amount as calculated above in this tribunal within 60 days from the date of this order.
After deposit of compensation amount, an amount of Rs.1,25,000/- shall be kept in the FD in the name of the petitioner in any nationalized or schedule bank of petitioner's choice and remaining amount with accrued interest shall be released in the name of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.1,000/-.
35 MVC.No.1786/2014
SCCH-18 Draw award accordingly.
(Dictated to the stenographer, transcribed by her, corrected, signed and then pronounced by me in open court on this 5th day of May 2017 ).
(VEERANNA SOMASEKHARA) III ADDL.SMALL CAUSES JUDGE & XXIX ACMM, BANGALORE.
ANNEXURES List of witnesses examined on petitioner's side:
PW-1.: Vinod Joseph PW-2: Kashappa Goudar PW-3: Dr. S.Ramachandra List of documents exhibited on petitioner's side:
Ex-P1 True copy of FIR
Ex-P2 True copy of Complaint
Ex-P3 True copy of Spot Sketch
Ex-P4 True copy of Spot Mahazar
Ex-P5 True copy of IMV report
Ex-P6 True copy of Charge sheet
Ex-P7 True copy of Wound certificate
Ex-P8 Discharge Summary
Ex-P9 Pay Slip
Ex-P10 Notarised Copy of Aadhar Card
Ex-P11 3 Photographs with CD
Ex-P12 Authorization Letter
Ex-P13 IP Case sheet
Ex-P14 3 X-rays
Ex-P15 Letter
Ex-P16 Outpatient Book
Ex-P17 1 X-ray
36 MVC.No.1786/2014
SCCH-18
List of witnesses examined on respondents side:
RW-1: Lokesh H.P. RW-2: Sushil Tiwari List of documents exhibited on respondents side:
Ex-R-1: Certified copy of Judgment in CC No.1195/2014 Ex-R-2: Authorization letter Ex-R-3: Copy of Policy Ex=R-4: Copy of notice Ex-R-5: Returned postal cover Ex-R-6: Copy of Notice Ex-R-7: Copy of hand sketch Ex-R-8: Copy of Wound certificate Ex-R-9: True copy of MLC Register.
III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.37 MVC.No.1786/2014
SCCH-18 SCCH-18 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.1786/2014 PETITIONER: Sri. Vinod Joseph, S/o.Arulmani Aged about 32 years, R/at No.382, "Sri. Ranganatha Nilaya" Pipe Line Road, B.H.E.L Mini Colony, Mallasandra, T.Dasarahalli, Bengaluru-560057.
(By Pleader Sri.BSD) /Vs./ RESPONDENTS: 1. The Managing Director BMTC, Central Office, K.H.Road, Shanthi Nagar, Bengaluru-560027.
(By pleader Sri.JR)
2. The New India Insurance Co. Ltd., T.P.Claims Hub, 2nd Floor, Mahalakshmi chambers, M.G.Road, Bengaluru-560001.
(By pleader Sri.DMJ)
3. Mr. Manjunath S. S/o Sathyanarayana, R/at No.487/1, Srigandadanagar, Vishwaneedam Post, 38 MVC.No.1786/2014 SCCH-18 Bengaluru-560091.
(Exparte) WHEREAS, this petition filed on by the petitioner/s above named U/s.110-A/166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Veeranna Somasekhara, III Addl. Senior Civil Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for petitioner/s and of Sri./Smt. Advocate for respondent.
O R D E R The claim petition filed by the petitioner U/S 166 of MV Act is hereby partly allowed with cost.
The petitioner is entitled for compensation of Rs.4,02,000/-with interest @9% P.A. from the date of petition till the date of deposit.
The respondent No.1 to 3 are jointly and severally liable to pay compensation amount to the petitioner. However, the respondent No.1 and 2 are hereby directed 39 MVC.No.1786/2014 SCCH-18 to deposit the compensation amount as calculated above in this tribunal within 60 days from the date of this order.
After deposit of compensation amount, an amount of Rs.1,25,000/- shall be kept in the FD in the name of the petitioner in any nationalized or schedule bank of petitioner's choice and remaining amount with accrued interest shall be released in the name of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Given under my hand and seal of the Court this day
of 2017.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL
METROPOLITAN AREA: BANGALORE.
____________________________
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on Petition
Court fee paid on Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree Drafted Scrutinized by
Decree Clerk SHERISTEDAR MEMBER, M.A.C.T
METROPOLITAN AREA:BANGALORE.
40 MVC.No.1786/2014
SCCH-18
O R D E R
The claim petition filed by the petitioner U/S 166 of MV Act is hereby partly allowed with cost.
The petitioner is entitled for compensation of Rs.4,02,000/-with interest @9% P.A. from the date of petition till the date of deposit.
The respondent No.1 to 3 are jointly and severally liable to pay compensation amount to the petitioner. However, the respondent No.1 and 2 are hereby directed to deposit the compensation amount as calculated above in this tribunal within 60 days from the date of this order.
After deposit of compensation amount, an amount of Rs.1,25,000/- shall be kept in the FD in the name of 41 MVC.No.1786/2014 SCCH-18 the petitioner in any nationalized or schedule bank of petitioner's choice and remaining amount with accrued interest shall be released in the name of petitioner through account payee cheque on proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
III ADDL.SMALL CAUSES JUDGE & XXIX ACMM.