Bangalore District Court
Shri T.Jagadish vs Dinesh Singh on 7 December, 2019
IN THE COURT OF III ADDL.JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES
BENGALURU
(SCCH-18)
Dated: This the 7th day of December 2019
Present: SRI.MAHANTESH S.DARGAD
B.Sc., LL.B.,(Spl)
III ADDL. JUDGE &
MEMBER, MACT
COURT OF SMALL CAUSES,
BENGALURU.
M.V.C.No.7418/2017
Petitioner Shri T.Jagadish,
Son of Late.thimmappa,
Aged about 53 years,
Residing at No.4,
Bhovi Colony, Byrasandra,
1st Block East, Jayanagar,
Bengaluru-560 011.
Also at No.409, "D" Main,
Shinivasanagar, BSK 2nd Stage,
Bengaluru-560 050.
(By Pleader Shri M.T. Nagaraj)
V/s.
Respondents 1.Dinesh Singh,
Son of Diropal Singh,
"Siddhi", No.5, 1st cross,
Adarshnagar, 1st Stage,
Nagarabhavi,
2 SCCH-18 MVC 7418/2017
Bengaluru-560 072.
(R.C. Owner of Swift D"zire Car bearing
No.KA-03-MK-2749)
(By Pleader Shri Srinivas L.)
2.ICICI Lombard General Insurance
Co.Ltd.,
No.121, The Estate, 9th floor, Dickenson
Road,
M.G. Road, Bengaluru-560 001.
(Policy No.3001/M1-05165032/00/000
valid from 27.10.2017 to 26.10.2018)
(By Pleader Shri H.G. Srinivas)
3.Bhagya Reddy,
Residing at Siddhi 5, 1st Cross,
Adarsha Nagar,
Nagarabhavi,
Bengaluru-560 072.
(By Pleader Smt.Madhumalathi S.)
4.B.M.R. Reddy,
Residing at Siddhi 5, 1st cross,
Adarsh Nagar,
Nagarabhavi,
Bengaluru-560 072.
(By Pleader Smt.Madhumalathi S.)
3 SCCH-18 MVC 7418/2017
J U D G M E N T
The petitioner has filed this claim petition U/S.166 of M.V. Act against the respondents claiming compensation amount of Rs.10,00,000/- on account of injuries sustained by the petitioner in a road traffic accident.
2.The brief facts of the petition are as under:
On 19.11.2017 at about 3.45 p.m. the petitioner was riding the Honda Activa bearing No.KA-05-HV-8463, slowly and cautiously on the extreme left side from Vijayanagar Water Tank towards Summanahalli, when he reached infront of Acharya Medical, Govindarajanagar, Bengaluru the drier of the Swift D"zire car bearing No.KA-03-MK-2749 suddenly opened the car door without observing the side mirror or vehicular movements in a rash and negligently in this process the petitioner fell down and sustained grievous injuries all over the body. Immediately after the accident, the petitioner was taken to Shobha Hospital, after first aid 4 SCCH-18 MVC 7418/2017 treatment he was referred to Dhanush hospital, wherein he took the treatment as inpatient.
3. Further the contention of the petitioner is that, prior to the accident, he was hale and healthy, aged about 53 years, Real Estate Agent cum Vegetable Vendor and earning a sum of Rs.25,000/- per month. The accident occurred due to the negligence of the driver of the car bearing registration No.KA-03- MK-2749. Therefore, the respondents are jointly and severally liable to pay the compensation. Contending the above facts, he prays to grant for compensation with interest and cost.
4. In response to the petition notice, the respondents appeared before the court and inspite of sufficient opportunities given to the respondent No.3 &4 have not filed their written statement, so the written statement of the respondent No. 3 & 4 taken as not filed. The respondent No.1 & 2 have filed their written statement.
5 SCCH-18 MVC 7418/2017
5. The brief contents of written statement of respondent No.1 are as under:
The respondent No.1 has contended in its written statement that the petition filed by the petitioner is not maintainable either in law or on facts. The respondent No.1 has contended that this respondent is not the owner of the vehicle at the time of the accident. The respondent No.1 has sold his vehicle to Mrs. Bhagya Reddy on 23.6.2014. So, the respondent No.1 has no connection or nexus with the accident. Further contended that he has insured his vehicle and it is valid from 27.10.2017 to 26.10.2018. Contending the above facts, he prays to dismiss the claim petition as against this respondent with cost.
6. The brief contents of written statement of respondent No.2 are as under:
The respondent No.2 has contended in its written statement that the petition filed by the petitioner is not maintainable either in law or on facts. Further admitted about the issuance of policy in 6 SCCH-18 MVC 7418/2017 respect of vehicle bearing No.KA-03-MK-2749 and its validity. Further contended that the both the rider and the driver of the vehicles in question was not possessing valid and effective driving license to drive their respective vehicles. Further contended that neither the owner of the vehicle nor the jurisdictional police have complied mandatory provision u/s 134(c) and S. 158(6) of the M.V. Act in furnishing the better particulars. Further contended that the accident occurred due to the rash and negligent riding of the petitioner as the car was fully stationary and parked on the left side of the road the petitioner himself solely responsible for the alleged accident, due to his rash and recklessness and negligent riding. Further denied the age, avocation and income of the petitioner as alleged in the claim petition. Contending the above facts, he prays to dismiss the claim petition as against this respondent with cost.7 SCCH-18 MVC 7418/2017
7. On the basis of above pleadings, the following issues were framed:
1. Whether the petitioner proves that he had sustained grievous injuries in an accident that was occurred due to rash and negligent Act of the driver of the car bearing registration No.KA-03-MK-2749 on 19.11.2017 at about 3.45 P.M. in front of Acharya Medical, Govindarajanagar, Bengaluru ?
2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?
3. What order or award?
8. In order to prove the case, the petitioner himself has examined as PW1 and got marked the documents at Ex.P1 to Ex.P11 and examined the Doctor as PW2 and got marked the documents at Ex.12 & Ex.P13.
9. To disprove the case of the petitioner and to prove the defence, the respondent No.1 is examined as RW1 and got marked 8 SCCH-18 MVC 7418/2017 the documents at Ex.R1 to Ex.R5. The respondent No.4 is examined as RW2 and got marked the documents at Ex.R6 to Ex.R17.
10. Heard the arguments of the petitioner and respondent No.2, the counsel for the respondent No.1 has filed the written arguments.
11. My findings to the aforesaid issues are as follows:
Issue No.1: In the Affirmative Issue No.2: In the Partly Affirmative Issue No.3: As per final order for the following:
R E A S O N S
12. ISSUE NO.1:- During the course of arguments, the learned counsel for the petitioner argued by reiterating the contents of petition and also evidence put forth by PW1 & PW2. Further he argued that as per police investigation papers the alleged accident has occurred due to the rash and negligent act of the driver of the car bearing registration No.KA-03-MK-2749. 9 SCCH-18 MVC 7418/2017 Further he argued that to prove the disablement suffered by the petitioner he has examined Dr.Nagaraj B.N. as PW2 and as per evidence of doctor the petitioner has suffered disability to the extent of 39% to the left hand and 13% to the whole body. Further contended that the petitioner has proved his case as contended in the petition by producing oral and documentary evidence. Accordingly, he prays to allow the petition.
13. Per contra, the learned counsel for the respondent No.2 argued by reiterating the contents of objection statement filed by the respondent No.2. Further he argued that the accident has not occurred due to the rash and negligent act of the driver of the car bearing registration No.KA-03-MK-2749. On the other hand, the alleged accident took place due to the rash and negligent riding of the petitioner himself. Further he argued that petitioner has failed to prove his case as contended in the petition by 10 SCCH-18 MVC 7418/2017 producing proper documents. Accordingly he prays to dismiss the petition against the respondent No.2.
14. On rival contention urged by both the counsel, I, intend to discuss the merits of the case.
15. On perusal of the evidence available on record, it reveals that, to prove the case, the petitioner has examined himself as P.W.1 and another witness is examined as PW2. Further in support of their case, they have produced the documents and the same are marked as Ex.P1 to Ex.P13. Thereafter the counsel for the respondent has cross-examined the PW1 at length, but nothing has been elicited to disbelieve the rash and negligent act of the petitioner. Further to prove the defence the respondent No.1 himself has examined as RW1 and respondent No.3 has examined as RW2, but their evidence will not help the respondent to prove the rash and negligent riding of the petitioner. 11 SCCH-18 MVC 7418/2017
16. Further petitioner in order to prove the rash and negligent the rash and negligent act of the driver of the car bearing registration No.KA-03-MK-2749, petitioner has produced the prosecution papers same are marked the as Ex.P1 to Ex.P6 i.e., FIR with complaint, spot mahazar, rough sketch, IMV report, wound certificate and charge sheet. On perusal of Ex.P1 to Ex.P6, it reveals that Vijayanagar Traffic police have registered case against the driver of the car bearing registration No.KA-03-MK- 2749 and after completion of investigation, the concerned police have filed the charge sheet as against the driver of the car bearing registration No.KA-03-MK-2749 for the offences punishable u/s 279 and 338 of IPC S. 134(B) R/w S. 187 of IMV Act.
17. Considering the above, facts and circumstances of the case and on perusal of evidence of PW1 & PW2 coupled with documents and for the above, I am of the opinion that the 12 SCCH-18 MVC 7418/2017 petitioner has proved that the accident occurred due to the rash and negligent act of the driver of the car bearing registration No.KA-03-MK-2749 as contended in the petition by producing oral and documentary evidence.
18. Further on perusal of Ex.P5-Wound certificate, it shows that, the petitioner has sustained grievous injuries in the accident.
19. In addenda of this, in a claim for compensation U/S.166 of MV Act, 1988, the claimant has to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by Hon'ble Apex Court in the decision reported in 2011 SAR (Civil) 319 (Kusum and others Vs. Satbir and others).
20. Looking to the oral evidence of PW1 and the documents placed before the court, I am of the opinion that the accident occurred due to the rash and negligent act of the driver of the car 13 SCCH-18 MVC 7418/2017 bearing registration No.KA-03-MK-2749. Hence, I answer this issue in the affirmative.
21. ISSUE NO.2:- The specific contention of the petitioner is that, he was hale and healthy at the time of accident, aged about 53 years, Real Estate Agent cum vegetable vendor and earning Rs.25,000/- 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 permanent 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 and lost the income.
22. On the other hand, the respondent No.2 has denied the above contention of the petitioner in toto.
23. To prove the age, the petitioner has relied upon Aadhar card at Ex.P8, wherein, the year of birth of petitioner is shown as 1964 and same is considered as year of birth of petitioner. Then it 14 SCCH-18 MVC 7418/2017 is clear that as on the date of accident, petitioner was aged about 53 years. Hence, the proper multiplier applicable to the case on hand is '11'.
24. To prove the occupation and income, the petitioner has not produced any relevant documents. In the absence of the positive documents pertains to his avocation and income, the notional of Rs.7,500/- is considered, it would meet the ends of justice as the accident is of the year 2017.
25. Further to prove the disablement suffered by the petitioner, he has examined Dr.Nagaraj B.N. who has stated in his evidence that, the petitioner has sustained following injuries;
Crush injury left leg with fracture of the middle third fibula and crush injury middle phalanx of the middle finger.
26. Further above said injury is grievous in nature. Further he has stated that, the petitioner has suffered disability of 39% to the left hand and 13% to the whole body.
15 SCCH-18 MVC 7418/2017
27. Considering the above facts and looking to the nature of injuries sustained by the petitioner and looking to the age and occupation of the petitioner, I am of the opinion that, if the extent of disability suffered by the petitioner is considered as 10% to the whole body certainly it would meet the ends of justice.
28. The income of the petitioner is considered as Rs.7,500/- P.M. and disability is considered as 11% and multiplier 18 is applied, then the loss of income due to disability comes to Rs.99,000/- (7,500X12X11X10/100). Considering the above facts and for the above reason, I deem it just and reasonable to grant for compensation of Rs.99,000/- under the head of loss of future earnings.
29. Further on perusal of Ex.P.5 i.e. copy of wound certificate, it shows that, the petitioner has sustained the following injuries:-
16 SCCH-18 MVC 7418/2017
Avulsed laceration present over the front of left leg measuring 43 cms X 21 cms X exposing the crushed muscles and fractured bone fragment.
Laceration present over back mid of left middle finger measuring 2 cms exposing the fractured bone fragment bleeding noted.
30. The above said injuries is grievous in nature. Considering the above facts and looking to the nature of injury, considering the age and occupation of the petitioner, I deem it just and reasonable to grant for compensation of Rs.30,000/- under the head of Pain and sufferings.
31. Further as stated above that, the petitioner has suffered disability to the extent of 10% to the whole body and as such the said disability may affect some extent on the occupation of the petitioner and the petitioner has to suffer throughout his life along with the said disability. Considering the above facts and for 17 SCCH-18 MVC 7418/2017 the above reason, I deem it just and reasonable to grant for compensation of Rs.10,000/- under the head of loss of amenities.
32. Further on perusal of Ex.P.7 discharge summary, it shows that, the petitioner has taken treatment as an inpatient from 19.11.2017 to 23.11.2017 for a period of 5 days at Dhanush Hospital. Considering the above facts and looking to the period of hospitalization, I deem it just and reasonable to grant for compensation of Rs.10,000/-under the head of attendant, nourishment and conveyance charges.
33. Further to prove the medical expenses incurred by the petitioner, he has relied upon the medical bills and the same are marked as Ex.P10. On the other hand, the respondent No.2 has disputed the genuineness of the said bills and to that effect, the counsel for the respondent No.2 has cross examined the PW1 at length and suggested that as per Sl.No.25 the inpatient bill amount 18 SCCH-18 MVC 7418/2017 is Rs.47,000/- for which he has admitted. But on perusal of the said bills, it is clear that the Sl.No. 25 is inpatient bill and apart from that petitioner has incurred for medicines and other charges. Further on perusal of evidence of PW1 coupled with Ex.P9-medical bills, it shows that, the petitioner has spent an amount of Rs.61,024/- towards medical expenses. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.61,024/- under the head of medical expenses.
34. Further due to the accidental injuries, the petitioner might not have attended his regular work at least for a period of two months as he was hospitalized for a period of 5 days and as such, if two months income is awarded under the head of loss of income during laid up period and rest period certainly it would meet the ends of justice. Considering the above facts, I deem it just and reasonable to grant for compensation of Rs.15,000/- 19 SCCH-18 MVC 7418/2017 under the head of loss of income during laid up period and rest period.
35. 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 under the following heads:
Compensation heads Compensation
amount
1. Towards Pain and suffering Rs. 30,000-00
2. Towards Loss of amenities Rs. 10,000-00
3. Towards Nourishment, conveyance Rs. 10,000-00 & attendant charges
4. Towards Medical expenses Rs. 61,024-00
5. Towards loss of future income Rs. 99,000-00
6. Towards Loss of income during laid Rs. 15,000-00 up period & rest period Total Rs.2,25,024-00
36. LIABILITY: On perusal of the contents of petition and contents of written statement, it reveals that, the accident occurred due to the rash and negligent act of the driver of the car bearing registration No.KA-03-MK-2749.
20 SCCH-18 MVC 7418/2017
37. The counsel for the respondent No.1 has argued that the respondent No.1 has sold his vehicle bearing registrationNo.KA-03- MK-2749 to the respondent No.3 in the year 2014 and the ownership of the vehicle was transferred on 5.2.2018. in this behalf he has examined RW1, RW1 has reiterated the similar contents as stated in the written statement. He has produced Ex.R1 to Ex.R5 such as Special Power of attorney of respondent No.1, delivery and transfer note, notice issued to the respondent No.2, copy of insurance policy and copy of driving license.
38. Further the respondent No.3 herself has examined as RW2, she has stated in her evidence that she has purchased the Swift car bearing No.KA-03-MK-2749 from the respondent No.1 and the insurance policy issued by the respondent No.2 was standing in the name of the respondent No.1 at the time of accident. She has produced the documents marked at Ex.R6 to Ex.R17 such as policy copies, amountpaid receipt, notarised copy of 21 SCCH-18 MVC 7418/2017 driving license of witness, Aadhar card of witness, copy of Pan card of witness, Election ID card, RC of witness, RC in the name of respondent No.4, copy of driving license of respondent No.4., Aadhar card of respondent No.4, Pan card, election ID card, RC, RC in the name of respondent No.4, copy of driving license, Aadhar card of respondent No.4, Pan card of respondent No.4., Election ID card of respondent No.4. On perusal of those documents reveals that the respondent No.1 has sold his vehicle to the respondent No.4 and the policy is valid as on the date of accident.
39. The respondent No.2 has admitted about the issuance of the policy and it is subject to terms and conditions. Therefore, the respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realization. Accordingly, I answer the issue No.2 in partly affirmative.
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40. ISSUE NO.3: In view of above discussion on issue Nos.1 & 2, 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 partly allowed with cost.
The petitioner is entitled for compensation of Rs.2,25,024/- with interest @ 8% p.a. from the date of petition till the date of realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 is liable to pay the compensation with interest at 8% p.a. from the date of petition till its realization within two months from the date of this order.
After deposit of compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalized/scheduled bank 23 SCCH-18 MVC 7418/2017 for a period of three years and remaining 60% of the amount shall be released to the petitioner through account payee cheque on proper identification without any further proceedings.
Advocate fee is fixed at Rs.1000/-.
Draw award accordingly.
(Dictated to the stenographer online, corrected by me and then pronounced in open court on this the 7th day of December 2019).
(MAHANTESH S.DARGAD) III ADDL.SMALL CAUSES JUDGE & ACMM, BANGALORE.
ANNEXURE List of witnesses examined on petitioner's side:
PW1 Shri T.Jagadish PW2 Dr.Nagaraj B.N.
List of documents exhibited on petitioner's side:
Ex.P1 True copy of FIR with complaint
24 SCCH-18 MVC 7418/2017
Ex.P2 True copy of spot mahazar
Ex.P3 True copy of Rough sketch
Ex.P4 True copy of IMV report
Ex.P5 True copy of Wound certificate
Ex.P6 True copy of Charge sheet
Ex.P7 Discharge summary
Ex.P8 Notarised copy of Aadhar card
Ex.P9 Medical bills
Ex.P10 Prescriptions
Ex.P11 Advance receipts
Ex.P12 OPD slip
Ex.P13 X-ray
List of witnesses examined on respondents' side:
RW1 Shri Dinesh Singh RW2 Smt.Bhagya Reddy
List of documents exhibited on respondents' side:
Ex.R1 Special power of attorney of respondent No.1.
Ex,R2 Delivery and transfer note
Ex.R3 Notice issued to the respondent No.2.
Ex.R4 Copy of insurance policy
Ex.R5 Notarised copy of DRIVING LICENSE.
Ex.R6 Policy copies
Ex.R7 Amount paid receipt
Ex.R8 Notarised copy of Aadhar card
Ex.R9 Notarised copy of Aadhar card
Ex.R10 Notarised copy of Pan card
Ex.R11 Notarised copy of Election ID card
25 SCCH-18 MVC 7418/2017
Ex.R12 Notarised copy of RC
Ex.R13 Notarised copy of RC in the name of respondent No.4.
Ex.R14 Notarised copy of DRIVING LICENSE of respondent No.4.
Ex.R15 Notarised copy of Aadhar card of respondent No.4.
Ex.R16 Notarised copy of Pan card respondent No.4 Ex.R17 Notarised copy of Election ID card of respondent No.4.
III ADDL.SMALL CAUSES JUDGE & ACMM, Bengaluru.