Bangalore District Court
Sri. Harshith vs Sri. Subrayappa on 17 April, 2018
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (SCCH-5) AT BENGALURU
DATED THIS THE 17th DAY OF APRIL, 2018
PRESENT: SMT. SHARMILA S. B.Com, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
M.V.C No.4635/2016
PETITIONER : Sri. Harshith
S/o. Sri. T.Byrappa
Aged about 44 years
R/at Vishwanathapuram Village &
Post,
Devanahalli Taluk,
Bengaluru Rural District.
(By Sri.Vasanthappa, Adv.,)
V/s
RESPONDENTS : 1. Sri. Subrayappa
S/o. Channappa
Major by aged
R/at. Vishwanathapura Village &
Post,
Devanahalli Taluk,
Bengaluru Rural District.
(Owner of offending vehicle bearing
Reg.No.KA-43-0311)
(Exparte)
2. The New India Assurance Co.
Ltd.,
No.374, 1st Floor,
'Srikrishna Rukmini Complex',
2 MVC No.4635/2016
SCCH-5
5th Cross, 9th Main,
Opp. HMT Play Ground,
Near Ganganagara Bus Stand,
R.T.Nagara,
Bengaluru - 560 032.
(Insurer of the offending vehicle
bearing Reg.No.KA-43-0311)
(By Sri.K.Nagarajaiah, Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 14.06.2015 at about 3.30 p.m. Petitioner was proceeding as pillion rider along with his friend Sri.Abhishek on Yamaha FZ Motor Cycle bearing Reg.No.KA-52-K-9143 on Soluru Gate to Byadarahalli on left side of the road by observing traffic rules, at that time, the driver of offending Tata Ace Magic bearing Reg.No.KA-43-0311 driven the same in rash and negligent manner came with high speed, lost control over 3 MVC No.4635/2016 SCCH-5 the vehicle and suddenly turned to right side of the road and dashed to above said Motor Cycle, on which Petitioner was proceeding. Due to the said impact, Petitioner fell down and sustained injuries to head, chest, ear, leg and other vital parts of the body. Immediately after the accident, Petitioner was shifted to Manasa Hospital, Devanahalli wherein he took first aid treatment and due to serious and grievous injuries sustained by him, Petitioner was shifted to Baptist Hospital and from there he was shifted to NIMHANS Hospital, wherein he took treatment as inpatient and undergone treatment for head and other injuries. Further, Petitioner was shifted to M.S.Ramaiah Hospital and undergone radiological and clinical examination and Petitioner was still under treatment at Akash Hospital, Devanahalli, for which, he had spent a sum of Rs.15,00,000/- for his treatment. Further it is the case of the Petitioner that, he was working at Kempegowda International Airport, 4 MVC No.4635/2016 SCCH-5 Devanahalli, Bengaluru and earning Rs.20,000/- p.m. and due to the said accidental injuries, he had suffered 100% disability and he is not in a position to do even manual work. Hence, he has claimed compensation of Rs.42,60,000/- against Respondents.
3. After service of notice, Respondent No.2 appeared through counsel and filed its written statement. Inspite of service of notice, Respondent No.1 remained absent, hence placed exparte.
4. Respondent No.2 in its objection statement denied petition averments, but inter-alia admitted issuance of policy in respect of Tata Ace Magic Vehicle bearing Reg.No.KA-43-0311 vide policy No.67210231140100002754 valid from 18.12.2014 to 17.12.2015 and if there is any liability to pay the compensation, it is subject to terms and conditions of the policy of insurance and provisions of M.V.Act. Further it raised objections available under Sec.158(6) and 134(c) of 5 MVC No.4635/2016 SCCH-5 M.V.Act. Except this all other defences are formal in nature and prays to dismiss the claim petition filed against it.
5. On the basis of the above pleadings, my learned predecessor have framed the following:
::ISSUES::
1. Whether Petitioner proves that he sustained injuries in road traffic accident that occurred on 14.06.2015 at about 3.30 p.m., on Solur-Byadarahalli Road and reached near Channarayappa's House, within the jurisdiction of Vishwanathapura Police Station, while the Petitioner was traveling as a pillion rider in Yamaha FZ Motor Cycle bearing Reg.No.KA-52-K-9143, due to rash and negligent act of driving of the Tata Ace Magic driver, vehicle bearing Reg.No.KA-43-0311, has resulted in an accident?
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
6. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and 6 MVC No.4635/2016 SCCH-5 got marked Ex.P.1 to Ex.P.13. Medical Record Technician in Akash Hospital has been examined as PW-2, who got marked Ex.P.14 to Ex.P.17 on his behalf. Further, Dr.Banu Prakash, Neurosurgeon in Kshema Clinic, Bengaluru has been examined as PW-3 and got marked Ex.P.18 to Ex.P.20. Per contra, Respondents did not prefer to lead any oral or documentary evidence.
7. Heard the arguments of learned counsel for the Petitioner and Respondents.
8. The learned counsel for the Petitioner has relied on the following decisions;
i) MFA No.30114/2012 (MV) in between Dinakar V/s. Basawaraj
ii) MFA No.23103/2011 (MV) in between The National Insurance Co. Ltd., V/s. Parvati and Ors.
iii) MFA No.22800/2009 (MV) in between The Divisional Manager, Oriental Insurance Co. Ltd., V/s. Suresh Nagappa Khilari and Ors.
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9. The learned counsel for the Respondent has relied on the following decisions;
i) ILR 2007 KAR 914 in between Manjunatha V/s. P.Shankar and Anr.
ii) 2011 (4) KCCR 2998 (DB) in between Girijesh Vyas and Anr. V/s. G. Vishnuvardhan and Ors.
iii) ILR 2009 KAR 2921 in between Bajaj Allianz General Insurance Co. Ltd., V/s. B.C.Kumar and Anr.
iv) 2015 ACJ 245 in between Devaraju T. V/s. United India Insurance Co. Ltd., and Anr.
v) ILR 2010 KAR 2439 in between Sri. Subash V/s. The New India Assurance Co. Ltd.,
vi) ILR 2014 KAR 2558 in between Devaraju T. V/s. The United India Insurance Co. Ltd.,
10. My findings on the above 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:
8 MVC No.4635/2016
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::REASONS::
11. Issue No.1 and 2: As these two issues are
interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
12. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of driver of the Tata Ace Magic bearing Reg.No.KA-43-0311. Inorder to prove the above said issues, Petitioner examined himself as PW-1 and other 2 witnesses as PW-2 and PW-3 and got marked in all 20 documents.
13. Inorder to prove this fact, he has produced Police records which are marked as Ex.P.1 to Ex.P.4 i.e., FIR with Complaint, Mahazar, Charge Sheet and IMV Report. If we peruse the oral and documentary evidence adduced by the Petitioner i.e., Ex.P.1 FIR with Complaint, 9 MVC No.4635/2016 SCCH-5 which clearly discloses that, on 14.06.2015 at about 3.30 p.m. Petitioner was proceeding as pillion rider along with his friend Sri.Abhishek on Yamaha FZ Motor Cycle bearing Reg.No.KA-52-K-9143 on Soluru Gate to Byadarahalli on left side of the road by observing traffic rules, at that time, the driver of offending Tata Ace Magic bearing Reg.No.KA-43-0311 driven the same in rash and negligent manner came with high speed, lost control over the vehicle and suddenly turned to right side of the road and dashed to above said Motor Cycle, on which Petitioner was proceeding. Due to the said impact, Petitioner fell down and sustained injuries to head, chest, ear, leg and other vital parts of the body.
14. PW-1 has been cross-examined by the learned counsel for Respondent No.2, wherein he deposed that, our Bike was proceeding on the left side of the road. There was no footpath on the said road. Offending Tata Ace Vehicle came from our opposite direction. We 10 MVC No.4635/2016 SCCH-5 observed Tata Ace Vehicle coming from opposite direction in a short distance. The cross-examination of PW-1 is nothing but bear suggestions and denials. According to PW-1 at the time of the accident, the offending vehicle came from opposite direction and dashed against two wheeler. This fact is corroborated the by the contents of charge sheet and there is no material to prove that there was contributory negligence on the part of the Petitioner in this accident.
15. At the time of the arguments the Respondent No.2 counsel vehemently argued that, there is a delay in lodging complaint about the accident. Per contra, in this regard the learned counsel for the Petitioner has relied on MFA No.30114 of 2012 (MV) in between Dinakar V/s. Basawaraj.
16. I have gone through the same. In my opinion, the delay has been properly explained by the Petitioner and inview of the ratio laid down by the Hon'ble High 11 MVC No.4635/2016 SCCH-5 Court of Karnataka in the above said decision, it is made clear that, mere delay in lodging the complaint in road traffic accident cases cannot be a ground for dismissal of the claim petitions, when there are other corroborating evidences.
17. Per contra, Respondent No.2 counsel filed an application under Sec.170 of M.V.Act and filed a memo along with a policy copy which is marked by the consent as Ex.R.1. But, Respondents did not chosen to adduce evidence. Hence, an inference could be drawn that this accident took place because of the negligence by the driver of the offending vehicle, which has been insured under Respondent No.2.
18. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, he was aged 23 years at the time of the accident. In order to prove his age, Petitioner has not produced any age proof documents. But on perusal of Ex.P.5 Wound 12 MVC No.4635/2016 SCCH-5 Certificate and Discharge Summaries marked as Ex.P.6 and Ex.P.7 it clearly discloses the age of the Petitioner as 23 years. On the basis of the above said records, it is considered that, Petitioner was aged 23 years as on the date of the accident. As per the Sarla Varma's Case, the proper multiplier applicable to the age group of 15 to 25 years is 18.
19. Petitioner has contended that, he was working at Kempegowda International Airport, Devanahalli, Bengaluru and earning Rs.20,000/- p.m. He has not produced any documents or adduced any evidence in this regard. Since this accident was occurred in the year 2015, hence it is just and proper to consider notional income of the Petitioner as Rs.6,000/- p.m.
20. Petitioner had sustained fracture of left scaphoid, fracture of left parietal, haematoma left temporal bone, for which, he was admitted in Neuro ICU 13 MVC No.4635/2016 SCCH-5 was started on inotrope in view of low BP was managed conservatively with analgesics, antibiotics, anti edema measures ad other supportive medications. This fact has been corroborated by the contents of Ex.P.5 Wound Certificate issued by Akash Hospital, Ex.P.6 is Emergency Case Record for Head and Spine Trauma issued by NIMHANS Hospital and Ex.P.7 is Discharge Summary issued by M.S.Ramaiah Institute of Neurosciences, wherein he took treatment as inpatient from 14.06.2015 to 16.06.2015.
21. Petitioner has also produced Ex.P.8 Certificate issued by Akash Hospital and Ex.P.9 Certificate issued by Rangadore Memorial Hospital. Ex.P.10 is Report of Gastroenterology, Ex.P.10(a) is CT-Scan Report, Ex.P.10(b) is Discharge Note issued by Rangadore Memorial Hospital, wherein he took treatment as inpatient from 08.09.2015 to 11.09.2015. Ex.P.10(c to f) are the Photographs. Ex.P.11 are the Medical Bills 295 in 14 MVC No.4635/2016 SCCH-5 Nos. amounting to Rs.4,29,930/-, Ex.P.12 are Conveyance Bills 342 in Nos. of Rs.7,323/- and Ex.P.13 are the Prescriptions. On perusal of Ex.P.12 the bills pertaining to purchasing of food from the Akash Hospital Canteen, it will not come under the expenses of medical bills. Hence, the Petitioner is not entitled for Rs.7,323/-. On perusal of Ex.P.11 at Sl.No.265 there is no signature of the person who issued the bill which is amounting to Rs.1,38,635/-. Hence, Petitioner is not entitled for the said amount and he is entitled for Rs.2,91,295/- (Rs.4,29,930/- (-) Rs.1,38,635/-) towards medical expenses.
22. PW-2 is Medical Record Technician in Akash Hospital filed his affidavit in lieu of chief-examination and got marked Ex.P.14 to Ex.P.17 which are Authorisation Letters, Case Sheet, MLC and X-ray. At the time of cross-examination he deposed that, he does not know the contents of Ex.P.15 to 17.
15 MVC No.4635/2016
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23. PW-3 is Dr.Banu Prakash, Neurosurgeon in Kshema Clinic, who has filed his affidavit in lieu of chief- examination and got marked Ex.P.18 OPD Record, Ex.P.19 Audiometry Report and Ex.P.20 Neurobehavioral and Cognitive Assessment Report. PW-3 in his affidavit sworn to that, Petitioner sustained head injury and had fracture of left parietal bone, scaphoid, temporal bone with extra dural hematoma, left subarachnoid hemorrhage and because of the fracture suffered, Petitioner had suffered whole body disability to an extent of 69.43% and in his cross-examination he admitted that, he is not treated Doctor and deposed that, Petitioner had decreased intellectual capacity, slurred speech, decreased hearing in right ear, difficulty to stand and balance gross ataxia, weakness of both lower limbs and right upper limb grip, writing, bimanual activity. Further Petitioner had behavioral changes-irritable, aggressive, emotional liability, shouts at people, forgets names, 16 MVC No.4635/2016 SCCH-5 conversations, work activities, gets headache and giddiness on exposure to sunlight and watching TV, feels tired all the time, finds it difficult to understand conversations needs repetition, needs help for almost all activities of daily living, sleep is disturbed and choking while drinking water.
24. Coming to the question of neurological disability is concerned, PW-3 is not treated Doctor but he has only assessed disability. Admittedly this accident had occurred in the year 2015 and disability was assessed in the year 2017. Hence, this Court is of the opinion that, 20% of the permanent disability would suffice for neurological related issues are concerned to assess the quantum of compensation
25. The Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
17 MVC No.4635/2016
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1. Expenses relating to:
a) to treatment, hospitalization, 2,91,000-00
medicines, transportation
(Rs.2,91,295/- rounded off
Rs.2,91,000/-)
b)nourishing food and 15,000-00
miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had he
not been injured, comprising:
a) Loss of earnings during period -
of treatment
b) Loss of future earnings on 2,60,000-00
account of permanent disability
(Rs.6,000/-x12x18x20%=
Rs.2,59,200/- rounded of
Rs.2,60,000/-)
3. Future medical expenses -
II. NON-PECUNIARY DAMAGES
(General Damages)
4. Damages for pain, suffering and 50,000-00
trauma as a consequence of the
injuries
5. Loss of amenities ( and/or loss 10,000-00
of prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity) Total 6,26,000-00 18 MVC No.4635/2016 SCCH-5
26. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.6,26,000/- with interest at the rate of 9% p.a. from the date of petition till its realization.
27. Relying upon a judgment of the Hon'ble Apex Court reported in 2013 AIR SCW 5375 in between Minu Rout and ors. V/s. Satya Pradyumna Mohapatra and ors., with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.13 of the judgment, Hon'ble Apex Court held that, 'Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date application till the date of payment' and also by following the principles laid down in (2011) 4 SCC 481: AIR 2012 SC 100 in between Municipal Council of Delhi V/s. Association of Victims of Uphaar Tragedy. In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the 19 MVC No.4635/2016 SCCH-5 compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
28. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.2 being the Insurance Company had issued policy infavour of Respondent No.1 inrespect of Tata Ace Magic bearing Reg.No.KA-43-0311 vide Policy No.67210231140100002754 valid from 18.12.2014 to 17.12.2015 and it is valid and effective on the date of accident. Accordingly, the Respondent No.2 being the insurer and Respondent No.1 being the owner of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. However, Respondent No.2 has to indemnify Respondent No.1. Accordingly, 20 MVC No.4635/2016 SCCH-5 Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
29. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following:
::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.
Petitioner is entitled for total compensation of Rs.6,26,000/- (Rupees Six Lakhs Twenty Six Thousand Only) with interest at the rate of 9% p.a., from the date of petition till the date of realization.
The Respondent No.2 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, 75% to be released in favour of Petitioner by way of crossed cheque and remaining 25% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in his name.
The Advocate`s fee is fixed at Rs.1,000/-.21 MVC No.4635/2016
SCCH-5 Draw award accordingly.
(Dictated to the stenographer directly on the computer, typed by her, thereof is corrected and then pronounced by me in the Open Court on this the 17th day of April, 2018) (SHARMILA S.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Sri. Harshith PW-2 : Sri. C.J.Vikesh PW-3 : Dr. Banu Prakash A.S.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : Copy of FIR with Complaint
Ex.P.2 : Copy of Mahazar
Ex.P.3 : Copy of Charge Sheet
Ex.P.4 : Copy of IMV Report
Ex.P.5 : Copy of Wound Certificate issued by
Akash Hospital
Ex.P.6 : Original Emergency Record issued by
NIMHANS Hospital
Ex.P.7 : Discharge Summary issued by
M.S.Ramaiah Hospital
Ex.P.8 & : Letter issued by Akash Hospital and
Ex.P.9 Rangadore Memorial Hospital
Ex.P.10 : Report of Gastroenterology issued by
22 MVC No.4635/2016
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Rangadore Memorial Hospital
Ex.P.10(a) : CT-Scan of nek issued by Sri Shankara Cancer Hospital and Research Centre Ex.P.10(b) : Discharge Summary issued by Rangdore Memorial Hospital Ex.P.10 : Total 4 Photographs (c to f) Ex.P.11 : Total 295 Medical Bills Ex.P.12 : Total 342 Conveyance Bills Ex.P.13 : Total 166 Medical Prescriptions Ex.P.14 : Authorization Letter Ex.P.15 : Case Sheet Ex.P.16 : MLC Ex.P.17 : X-rays (4 in Nos.) Ex.P.18 : OPD Record Ex.P.19 : Audiometry Report Ex.P.20 : Neurobehavioural and Cognitive Assessment LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
-NIL (SHARMILA S.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.