Bangalore District Court
Sannamma vs Lingappa on 29 November, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
Dated this the 29th day of November 2016
Present : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C No.918/2016
Petitioner: Sannamma,
W/o Ramachandraiah,
Aged about 55 years,
R/a Pathaganahalli @ post,
Koratagere Taluk,
Tumkur district.
(By Sri B.S.Manjunath,
Advocate)
-Vs-
Respondents: 1. Lingappa,
S/o Mallaiah,
Thorenagasandra,
Mathahalli Post,
Dasanapura Hobli,
Bangalore North.
(R.C.Owner of Lorry bearing
Reg.No.KA-52-8930)
(By Sri H.G.Srinivas, Advocate)
2. Magma HDI General
Insurance Company Limited,
No.36, II floor,
Minerva Circle, J.C.Road,
Bangalore -27.
SCCH-1 2 MVC No.918/2016
(I.P.No.P0015300004/4103/
106632
Valid from 16.6.2015 to
15.06.2016)
.. exparte
*****
JUDGMENT
The petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.25,00,000/- for the injuries sustained by him in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the petitioner that on 09.03.2015 at about 8-30 a.m. when the petitioner was a pedestrian along with her daughter to go to her agricultural land on Kolala Mavathur road at their village Pathaganahali on left side of the road, at that time the driver of lorry bearing No. KA-52-8930 came with high speed in a rash and negligent manner dashed against the petitioner and caused the accident. As a result of the same, petitioner fell down and sustained injuries. SCCH-1 3 MVC No.918/2016
3. Immediately after the accident he was shifted to Government hospital, Koratagere, whrein first aid treatment was given to her and then shifted to Victoria hospital, wherein x-rays were taken. The petitioner had suffered fractures, crush injury of right foot , third, fourth and fifth toes of right foot amputated. Skin grafting was done for right foot, other injuries were treated conservatively. Surgery and K wire fixation for D1, D2 and D3 was done.
4. It is the case of the petitioner that prior to the accident petitioner was hale and healthy and she was aged 55 years and was working as coolie and earning Rs.15,000/p.m. and she has sustained permanent disability and lost her income. The accident was occurred due to the rash and negligent driving of the lorry by its driver and the respondent No.1 being the owner and 2 being the insurer are jointly and severally liable to pay compensation.
5. In pursuance of this claim petition, this Court has issued notices against the respondents. Respondent SCCH-1 4 MVC No.918/2016 NO.1 has not chosen to appear before the Court and he was placed exparte. Respondent No.2 has appeared before the Court through his counsel and has filed written statement.
6. Respondent No.2 has filed written statement denying the petition averments. This respondent has denied the date, time and mode of accident, age , avocation and income of the petitioner, injuries sustained by the petitioner, expenses incurred by her. This respondent admitted the issuance of policy and the liability is subject to the terms and conditions of the policy. The compensation claimed by the petitioner is excessive and exorbitant It is further contended that the second respondent reserves his right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act. Hence, prays to dismiss the petition.
SCCH-1 5 MVC No.918/2016
7. Based on the pleadings this Court has framed the following:-
ISSUES
1. Whether the Petitioner proves that she sustained grievous injuries in a Motor Vehicle Accident that that occurred on 9-3-2015 at about 08.30 a.m., on Kolala Mavathuru Road, at Pathaganahalli Village, Koratagere Taluk, Tumkur District, within the jurisdiction of Koratagere Police Station on account of rash and negligent driving of the Lorry bearing registration No.KA-52-8930 by its driver?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
8. The petitioner in order to prove his case, he examined himself examined as PW1 and has examined two witnesses as PW2 and 3 and they have got marked the documents at Ex.P.1 to 19. The respondents have not led either oral or documentary evidence.
9. Heard the arguments of petitioner counsel and counsel for the respondent was absent, hence, taken as no arguments.
SCCH-1 6 MVC No.918/2016
10. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... Partly in the Affirmative,
3) Issue No.3 ... As per final order
for the following:-
REASONS
11. Issue No.1: It is the case of the petitioner that on on 09.03.2015 at about 8-30 a.m. when the petitioner was a pedestrian along with her daughter to go to her agricultural land on Kolala Mavathur road at their village Pathaganahali on left side of the road, at that time the driver of lorry bearing No. KA-52-8930 came with high speed in a rash and negligent manner dashed against the petitioner and caused the accident. As a result of the same, petitioner fell down and sustained injuries.
12. In order to prove her case she examined herself as PW-1 and she reiterated the averment of the petition contending that the accident was on account of the rash and negligent driving of the driver of the lorry bearing No. SCCH-1 7 MVC No.918/2016 KA-52-8930. Apart from her oral evidence by way of affidavit she also relied upon FIR, mahazar, IMV report, charge sheet as Ex.P.1to 3 and 5. She was subjected to cross-examination. In the cross-examination, she admits that she may be aged 60 years old and she is a house wife. She admits she has BPL card. It is suggested that, the accident was occurred due to her negligence since she has proceeded in a zigzag manner and the said suggestion was denied. It is suggested that the lorry was not involved in the accident and the same was denied.
13. Though the respondent has taken the defence that vehicle was not involved in the accident, the respondent has not led any evidence before the Court and also on perusal of the entire written statement there is no any contention of the non-involvement of the vehicle and only in the cross-examination, such a defence was taken. In order to come to a conclusion of contributory negligence as contended in the objection there must be cogent evidence before the Court and the driver of the lorry is the right person to speak about the SCCH-1 8 MVC No.918/2016 negligence of the petitioner and he has not been examined before the Court. On perusal of F.I.R., it discloses that the accident was occurred on 9.3.2015 at about 8.30 a.m. and the complaint was given on the same day at 12.00 noon and there was no any delay in lodging the complaint. The IMV report which is marked at Ex.P.3. discloses that there is no fresh damages are found in the vehicle. The charge sheet which is marked at Ex.P.5 discloses that the Police after investigation have filed charge sheet against the driver of the lorry for the offences punishable under section 279 and 338 of IPC. The respondents have not led any evidence and they have not examined the driver of the lorry, who is the right person to speak about the negligence of the petitioner. in order to consider the contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another V/s. Himachal Road Transport Corporation and others) )- No cogent evidence to prove plea of contributory SCCH-1 9 MVC No.918/2016 negligence, doctrine of common law cannot be applied -. Hence, I answer issue No.1 in the affirmative.
14. ISSUE No.2: It is the case of the petitioner that on account of the accident she has sustained grievous injuries. The petitioner in order to prove her case has produced wound certificate at Ex.P.4, which discloses petitioner has sustained degloving injury right foot, fracture of D1, D2 and D3. Doctor has opined the injuries are grievous in nature. Ex.P.6 discharge summary discloses that the petitioner had sustained post trauma degloving injury right foot with fracture of D1, D2, D3. Doctor has opined that the injury No.1 and 2 are grievous in nature. Discharge summary which is marked at Ex.P.6 discloses that the petitioner was inpatient from 09.3.2015 to 04.04.2015 i.e., for a period of 27 days. For having taken note of the nature of the injuries sustained by the petitioner and the treatment taken by her, I award a sum of Rs.40,000/- towards Pain and sufferings.
15. It is the case of the petitioner that she has sustained permanent disability and in order to prove the SCCH-1 10 MVC No.918/2016 same she has examined the Orthopaedic surgeon as PW2 and in his affidavit he reiterated the nature of the injuries suffered and the treatment taken by her in the hospital as inpatient. PW-2 in his evidence he says the petitioner has sustained degloving injury right foot and treated surgically with K wires. Petitioner has lost 3rd digit, deformity right foot, difficulty in squatting, difficulty in sitting crossed leg on floor, difficulty in climbing stairs. X-rays of right foot shows mal united fracture of proximal phalanx of 2nd tow with loss of the 3rd toe at its proximal phalanx. He was subjected to cross-examination. In the cross-examination, it is elicited that records does not disclose anything about malunion from the date of discharge till the date of his assessment. The mobility and stability components in respect of ankle joint is normal. It is suggested that he has not mentioned the mathematical calculation in his affidavit and also in the clinical notes and the said suggestion was denied. He admits that he has not mentioned the reasons for assessing the disability of 10% to whole body and also SCCH-1 11 MVC No.918/2016 not mentioned inrespect of limb disability also. He admits that when a person walking and climbing the stairs, the mobility and stability component at the ankle joint play a vital role. He further admits that a person who is aged about 55 years , the age also contributes to the movements and difficulties of stability component. He says he has not assessed the functional disability.
16. Dr.Jainath R., Plastic Surgery Assistant Professor, is examined as PW-3 and in his evidence he states that patient had crush injury of right foot with loss of skin, muscle and soft tissue over right sole and dorsum of foot with amputation of 2nd, 3rd , 4th and 5th toes. He states petitioner was operated for crush injury over right foot with amputation of 2nd, 3rd, 4th and 5th toes, followed by dressings and split thickness skin grafting for raw area over dorsum and sole of right foot. By taking mobility component, stability component, combined disability he has assessed the permanent disability suffered by the petitioner to right lower limb at 38% and 13% to whole body. He was subjected to cross- SCCH-1 12 MVC No.918/2016 examination. In the cross-examination, it is suggested that only Orthopaedic surgeon can assess the disability based on the mobility and stability components and not as plastic surgeon and the said suggestion was denied. It is suggested that he has assessed the disability on higher side and the said suggestion was denied.
17. Let me appreciate the oral and documentary evidence available on record and evidence. It is the contention of the petitioner that she has sustained degloving injury and fracture of D1, D2 and D3 and doctor has opined injuries are grievous in nature. In the evidence of PW-3 he says the x-rays of right foot shows mal united fracture of proximal phalanx of second toe with loss of the 3rd toe at its proximal phalanx. For having taken note of the evidence of PW-2 and 3, no doubt, PW-2 has not assessed the disability on the basis of stability and mobility components and the same has been admitted by him. PW-2 also says petitioner sustained degloving injury to right foot. Petitioner also produced photographs at Ex.P.13 and it shows the right SCCH-1 13 MVC No.918/2016 foot of the petitioner is in a pathetic condition and she was inpatient for about 35 days in hospital and subjected to surgery. For having taken note of the disability assessed by the PW-2 orthopaedic at 10% to whole body and PW-3, Plastic surgeon, has assessed the disability at 13%, I am of the opinion that it is a fit case to accept the evidence of the PW2 orthopaedic, even though he has not specifically mentioned the mobility and stability components. For having considered the photos, amputation of toes as deposed by PW-3, I accept the disability suffered by the petitioner at 10%.
18. It is the contention of the petitioner that she is aged about 55 years and she is working as coolie and earning Rs.7,500/p.m. She has not produced any documentary proof to prove the same and in the absence of documentary proof this Court has to take the income of the petitioner at Rs.7,000/- p.m. as the accident is of the year 2015.
SCCH-1 14 MVC No.918/2016
19. The petitioner has stated her as 55 years in the petition. She has not produced any documentary proof regarding her age. In the absence of any documentary proof this, we have to rely on medical records. In the hospital records such as wound certificate and discharge card his age is mentioned as 54/55 years and the appropriate multiplier applicable is 11. Hence, the petitioner is entitled for compensation under the head of loss of earning due to disability as :
Rs.7000x12x11x10/100 = Rs.92,400/-. Hence, I award Rs.92,400/- towards loss of future earning due to permanent disability.
20. Regarding loss of income is concerned, the petitioner took treatment as inpatient from 09.3.2015 to 04.04.15 i.e. for a period of 27 days and she had cleaning and K wire fixation of D1, D2 and D3 and doctor has advised her to take follow up treatment as she has sustained grievous injuries. Hence, she could not earn for period of 4 months. Hence, I award Rs.28,000/- towards loss of income during the treatment period . SCCH-1 15 MVC No.918/2016
21. The petitioner has produced medical bills to the tune of Rs.2,114/-. As the petitioner has taken treatment in Victoria hospital which is a Government hospital, she has spent only Rs.2,114/- Hence, I have accepted the medical bills and the same is rounded off to Rs.2,200/- . Hence, I award Rs.2,200/- towards medical expenses.
22. The petitioner took treatment in the hospital as inpatient for a period of 27 days. During that period she might have spent some amount towards conveyance, food and nourishment etc., Hence, I award Rs.30,000/- as compensation under the head of food and nourishment, conveyance, attendant charges and other incidental charges.
23. The petitioner is aged about 55 years and she has to lead rest of her life with this disability of 10%. For having taken note of the said fact into consideration , I award Rs.20,000/- under the head of loss of amenities. SCCH-1 16 MVC No.918/2016
24. The details of compensation, I propose to award are as under:
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000-00
2. Medical expenses Rs. 2,200-00
3. loss of income during the Rs. 28,000-00
period of inpatient and period
of treatment.
4. Food and nourishment, Rs. 30,000-00
conveyance , attendant
charges and other incidental
expenses
5. Loss of future earning due to Rs. 92,400-00
permanent disability
6. Loss of amenities Rs. 20,000-00
Total Rs. 2,12,600-00
25. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the SCCH-1 17 MVC No.918/2016 Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
26. As regards the liability is concerned, the respondents No.1 is the owner and respondent No.2 is the insurer lorry bearing No.KA-52-8930, hence, both respondents are jointly and severally liable to pay compensation to the petitioner. However, primary liability is fixed on respondent No.2 to satisfy the award. Hence, this issue is answered accordingly. SCCH-1 18 MVC No.918/2016
27. Issue No.4: In view of the above discussions, I proceed to pass the following:
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.2,12,600/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount to which the petitioner is entitled, 50% with proportionate interest shall be kept in F.D. in her name in any nationalized or scheduled bank of her choice for a period of 3 years with liberty to draw the accrued interest periodically and the SCCH-1 19 MVC No.918/2016 remaining amount with proportionate interest is ordered to be released to her.
Advocate's fee is fixed at Rs.1000/-. Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 29th day of November 2016) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Sannamma P.W.2 : Dr.B.Viswanath P.W.3 : Dr.Jainath R.
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
Ex.P-2 : Copy of mahazar
Ex.P-3 : Copy of IMV report
Ex.P-4 : Copy of wound certificate
Ex.P-5 : Copy of charge sheet
Ex.P-6 &7 Discharge summaries
Ex.P-8 & OPD books(2)
9
SCCH-1 20 MVC No.918/2016
Ex.P-10 Lab reports
Ex.P-11 Out patient records
Ex.P-12 Medical bills(7)
Ex.P-13 Photos with C.D.(3)
Ex.P-14 OPD card
Ex.P.15 Case sheet
Ex.P.16 X-ray
Ex.P.17 OPD book
Ex.P.18 Case sheet
Ex.P.19 X-ray
Witnesses examined on behalf of the respondents :
-Nil-
Documents marked on behalf of the respondents:
- Nil -
(H.P.SANDESH) Member, Prl., M.A .C.T. Bangalore