Bangalore District Court
Lokesh H.B vs Sbi Gen.Insu.Co.Ltd on 1 August, 2015
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes, n
BANGALORE.
MVC No.3877/2014
Dated this the 01st day of August 2015
Petitioner/s : Lokesh H.B,
S/o Biliyappa,
Aged about 29 years,
R/at No.129-1-1, 7th cross,
2nd main Road,
Govindaraja nagar,
Bangalore-560040.
Old Address:
No.308, Mallasandra,
Bhuvaneshwari Nagar,
V/s Bangalore.
(By pleader Sri MGR)
Respondent/s 1.SBI Gen.Insu.Co.Ltd.
Rukmini Towers,
Plot Farm Road,
Sheshadripuram,
Bangalore.
2.Devaraju.M
S/o Munishamappa,
Muttur Village, Malur Post,
Sidlagatta Taluk,
Chikkaballapura District.
(R1-By pleader Sri RSS
R2- Exparte)
SCCH-14 2 MVC No.3877/2014
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
On 05.07.2014 at about 05.00 P.M., the petitioner was proceeding on his motorcycle bearing No.KA-08-L-3782 slowly and cautiously on the left side of Hosakote- Chintamani Road. When he reached near D-Shettyhalli Gate, at that time, Indica car bearing No.KA-40-7840 came from Chintamani driven by its driver in a rash and negligent manner in a high speed so as to endangering to human life and dashed to the petitioner's vehicle. Due to impact, the petitioner fell down and sustained grievous injuries to his right hand, left leg and other parts of the body. Immediately, the petitioner was taken to Hosmat Hospital and then, he was shifted to Medi Hope Super Specialty Hospital for further treatment, wherein he has admitted as an inpatient from 06.07.2014. He underwent surgery and discharged with an advice to take bed rest. The petitioner spent Rs.1,00,000/- towards medical expenses and Rs.50,000/- towards conveyance etc., Prior to the accident, the petitioner was hale and healthy, was aged about 29 years, was working as salesman in Metro Cash and Carry at Konappana Agrahara, Bangalore and earning Rs.9,000/- p.m., Due to accidental injuries, he has lost future income and future prospective of life, happiness, earning capacity. Nandagudi police have registered Cr.No.164/2014 against the driver of the Car SCCH-14 3 MVC No.3877/2014 bearing No.KA-40-7840. The respondents are the insurer and owner of the said car and they are jointly and severally liable to pay compensation to the petitioner. Therefore, the petitioner has filed this petition for a compensation of Rs.10,00,000/- with cost and interest.
3. In pursuance of the notices, the respondent No.1 has appeared before the Court through his counsel and filed written statement. Summons was not served on the respondent No.2 in the ordinary course. Hence, summons issued against him by substitute service i.e., by paper publication. In spite of publication of citation in the news paper, the respondent No.2 remained absent and hence, he is placed exparte. The respondent no.1 has contended that the petition is not maintainable, that the owner of the vehicle has not complied the mandatory provisions of Motor Vehicles Act, that the driver of the car was not holding valid and effective driving license to drive the transport vehicle, that the policy issued by him in favour of the respondent No.2 is subject to limitation to the terms and conditions of the policy, that the insured car is not involved in the accident and the petitioner sustained injuries due to self fall and he has falsely implicated the insured car, that the accident was not due to negligence of the driver of the car, but it was due to the negligence of the petitioner himself, that the petitioner has not sustained injuries as mentioned in the petition, that his claim is highly excessive, exaggerated, arbitrary and speculative. Hence, he has sought for dismissal of the petition with cost as against him.
SCCH-14 4 MVC No.3877/20144. On the basis above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 05.07.2014 at about
05.00 p.m., On Hosakote-
Chintamani Road, D. Shettyhalli, Hosakote Taluk, Bangalore Rural District, in an accident arising due to rash and negligent driving of driver of Car bearing No.KA-40- 7840?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
5. During the evidence, the petitioner has examined himself as PW.1 and examined one witness as PW.2. He has got marked documents as Ex.P1 to P12. The respondent No.1 has not adduced any evidence on his behalf.
6. Heard the arguments and perused the records.
7. My findings on the above issues are as under:-
Issue No.1: In Affirmative.
Issue No.2 : In Affirmative, For Rs.4,15,000/-
from the respondent No.1.
Issue No.3 : As per final order :
for the following:SCCH-14 5 MVC No.3877/2014
REASONS
8. ISSUE NO.1: PW-1 and 2 have deposed for the petitioner. Ex.P1 to 12 are marked in support of oral evidence of PW-1 and 2. The respondent No.1 has not adduced any evidence on his behalf and the respondent No.2 remained exparte.
9. PW-1 Lokesh is the petitioner and he has reiterated the entire averments of he petition. He has stated that the accident has occurred due to the rash and negligent driving of the driver of the Car bearing No.KA-40-7840 and he sustained grievous injuries in the nature of permanent disablement in the said accident. In cross-examination, he has admitted that Ravikumar was not present at the time of accident, that his father gave complaint and police have recorded his statement, that his father has no personal knowledge about the manner of accident and involvement of the vehicles, that he was conscious after the accident and he has not informed the doctor at Hosmat Hospital and Medi Hope Multi specialty hospital about particulars of the vehicle which caused accident. He has denied the suggestions that he rode his motorcycle in high speed and caused accident due to his own negligence, that a false complaint has been filed on 05.07.2014 against the driver of car, that he has not taken treatment in Medi Hope hospital in the injuries sustained by him in the accident and his treatment was pertaining to different injuries caused to him at different occasion. The said denials obtained from PW-1 are not sufficient to disbelieve his evidence.
SCCH-14 6 MVC No.3877/201410. PW-2 Dr.Ramachandra has deposed that the petitioner has sustained segmental fracture of tibia and fibula of left leg. In cross-examination, he has admitted that as per wound certificate at Ex.P4, the petitioner has not sustained any fracture injury. He has denied suggestion that the petitioner has not sustained the injury as referred the affidavit filed in lieu of examination in chief.
11. The petitioner has produced copies of police records namely FIR, Panchanama, IMV report and charge sheet which are marked as Ex.P1, 3 and 5. Wound certificate and discharge summary are at Ex.P4 and 6. The police records reveal that on 08.07.2014 at about 04.00 pm, Nandagudi police have registered Cr.No.164/2014 on the basis of information give one Ravikumar regarding the accident, that the police have investigated the matter and filed charge sheet against the driver of the Car bearing No.KA- 40-7840 for the offence punishable U/s 279 and 338 of IPC. The panchanama at Ex.P2 discloses that the police have detained both the vehicles involved in the accident from the place of accident on 09.07.2014. IMV report at Ex.P3 reveals that both the vehicles were damaged in the accident, that the brake system of the said vehicles was in order. It is opined that the accident was not due any mechanical defects of the vehicles. It means, the accident was due to human error.
12. Wound certificate at Ex.P4 discloses that the petitioner was admitted in Medi Hope Hospital from 06.07.2014 to 10.07.2014 and he sustained abrassion over the right elbow and SCCH-14 7 MVC No.3877/2014 laceration over the right ankle in the accident. Discharge summary at Ex.P6 reveals that the petitioner sustained segmental fracture of left tibia and fibula, that the petitioner underwent surgery with implant on 07.07.2014 and was discharged from hospital on 10.07.2014.
13. The counsel for the respondent No.1 has argued that there is a delay of 3 days in lodging complaint, that the wound certificate at Ex.P4 reveals that the petitioner sustained simple injury in the accident which is contrary to the evidence of PW-1 and 2 and contents of Ex.P6, that the petitioner did not sustain fracture injury in the accident and he suffered the said injury due to the self and that is why he has not filed complaint immediately and managed to file complaint against the driver of the Car bearing No.KA-40-7840 after 3 days by colluding police and concerned owner and driver of the vehicle. Hence, he has sought for answering the issue in negative.
14. The panchanama and IMV report at Ex.P2 and 3 disclose that Car bearing No.KA-40-7840 was detained from the place of accident and damages were found on the front portion of the car. The said damages indicate that the Car bearing No.KA-40-7840 was involved in the accident. The respondent No.1 has not given any explanation regarding detention of the car from the place of the accident and damages caused to the said vehicle. Therefore, I am of the opinion that the contention of the respondent No.1 regarding non-involvement of the Car bearing No.KA-40-7840 is unacceptable.
SCCH-14 8 MVC No.3877/201415. Wound certificate at Ex.P4 and discharge summary at Ex.P6 are contrary to each other. Wound certificate does not disclose the causing of fracture injury to the petitioner, but the discharge summary at Ex.P6 reveals that the petitioner sustained segmental fracture of left tibia and fibula. The contents Ex.P6 are further corroborated by the contents of X-rays at Ex.P10 and 12 and oral evidence of PW-2. There is nothing on record to disbelieve the evidence of PW-2 and contents of discharge summary. X-rays disclose that the petitioner has suffered fracture of tibia and fibula of left leg. The respondent No.1 has not made any efforts to examine the author of Ex.P4 to prove his contention. There is no corroboration to the wound certificate to hold that the petitioner has only suffered simple injury. Therefore, I believe the oral evidence of PW-1 and 2 and contents of Ex.P6, 10 to 12 and hold that the petitioner sustained segmental fracture of left tibia and fibula. Moreover, the police have filed charge sheet against the driver of the Car bearing No.KA-40-7840 for the offence punishable U/s 279 and 338 of IPC which indicates causing of grievous injury to the petitioner. The said charge sheet is prima-facie evidence regarding the negligence of the driver of the said car. The respondent No.1 has not examined the driver of the car or any of the eyewitnesses mentioned in the charge sheet to rebut the oral and documentary evidence adduced by the petitioner. Therefore, I hold that the petitioner has succeeded to prove this issue and I answer the same in affirmative.
SCCH-14 9 MVC No.3877/201416. ISSUE NO.2: Evidence of PW-1 and 2 and contents of Ex.P5, 6, 10 to 12 reveal that the petitioner sustained segmental fracture of left tibia and fibula, that he underwent ORIF with inter Medullary interlocking nail at Medi Hope Hospital, that he was an inpatient in the said hospital for 5 days from 06.07.2014 to 10.07.2014. The petitioner might have taken follow up treatment and bed rest. Medical bills amounting to Rs.91,290/- are at Ex.P7 which are supported by the contents of prescriptions at Ex.P8. Advance receipts at Ex.P9 confirm the payment of amount to the hospital by the petitioner. There is nothing on record to believe that the medical bills are created for this case. Looking to the injury caused to the petitioner, I am of the opinion that he might have taken follow up treatment and bed rest for a period of 4 months. During the said period, he might have lost his income. Hence, I am of the opinion that the petitioner is entitled for compensation of Rs.50,000/- towards pain and sufferings, Rs.92,000/- towards medical expenses, Rs.15,000/- towards nourishment, conveyance and attendant charges.
17. PW-1 has deposed that he was aged 29 years and was a salesman in Metro Cash and Carry and was earning Rs.9,000/- per month. There is no evidence regarding age, occupation and income of the petitioner apart from oral evidence of PW-1. However his age is mentioned as 25 years in the chargesheet and 24 years in medical records. There is nothing on record to disbelieve the evidence of PW-1 as to his age. However, in the absence of positive evidence regarding occupation and income, evidence of PW-1 can SCCH-14 10 MVC No.3877/2014 not be accepted. Therefore, I hold that the petitioner was aged 29 years on the date of accident. His occupation is shown as labourer in the charge sheet. Hence, I considered his income is Rs.6,000/- per month. He has taken bed rest and follow up treatment for a period of 4 months. He lost income during the said period. Hence, I award a compensation of Rs.24,000/- towards loss of income.
18. PW-3 has deposed that the petitioner is suffering from permanent disability to the accident of 45.93% from his left lower limb which is permanent disability of 25% to the whole body. In cross examination, he has denied the suggestion put to him by the counsel for the petitioner. He has stated that the fracture of tibia and fibula are not united with implant in situ. He has further stated that the petitioner has to undergo operation for correction of nonunion of fracture of tibia for extensive bone grafting. There is noting on record to disbelieve the evidence of PW-2 which is supported by the contents of OP card at Ex.P7. Existence of implants can be seen from X-ray at Ex.P12. Since, the petitioner has to undergo one more surgery for bone grafting and for removal of implants, I am of the opinion that if whole body disability will be considered as 1/3rd of the disability of left lower limb, it will meet the ends of justice. 1/3rd of 45.93% comes to 15.31% which can be rounded to 15%. I am of the opinion that the petitioner is suffering from permanent physical disability of 15% to the whole body. It is held above that the petitioner is a labourer. PW-2 has stated that the petitioner is stated to be working in a Garment Factory. The occupation of the petitioner requires strength of lower limbs.
SCCH-14 11 MVC No.3877/2014Therefore, I hold that the disability caused to the petitioner is physical as well as functional. The said disability will definitely results in loss of earning capacity to the extent of disability i.e., 15%. The petitioner is suffering from various difficulties which may persist in future. He requires amount for future surgery. He was aged 29 years as on the date of accident. His annual income is Rs.72,000/-. Appropriate multiplier is 17. Therefore, loss of future income of the petitioner would be Rs.72,000X17X15%=1,83,600/- which can be rounded to Rs.1,84,000/-. The petitioner is further entitled for a compensation of Rs.25,000/- towards loss of amenities, Rs.25,000/- towards future medical expenses. Thus, the petitioner is entitled for just and reasonable compensation as under;
1. Pain and suffering Rs. 50,000/-
2 Medical expenses Rs. 92,000/-
3 Nourishment, conveyance and Rs. 15,000/-
attendant charges 4 Loss of income during laid up Rs. 24,000/-
period 5 Loss of future income Rs. 1,84,000/-
(72000X17x15%) 6 Loss of amenities Rs. 25,000/-
7 Future medical expenses Rs. 25,000/-
Total Rs.4,15,000/-
The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
Liability
19. The respondents are the insurer and owner of the Car bearing No.KA-40-7840. The respondent No.1 has contended that the accident was not due to the rash and negligent driving of the SCCH-14 12 MVC No.3877/2014 driver of the Car bearing No.KA-40-7840 and petitioner sustained injuries due to self fall, but he has failed to establish his defence. On the other hand, the petitioner has proved that he sustained grievous injuries in the nature of permanent disablement in the accident arising due to the rash and negligent driving of driver of the said car. Therefore, the respondents are jointly and severally liable to pay the compensation and interest to the petitioner as calculated above. The respondent No.1 has admitted that he issued policy in favour of the respondent No.2 which was in force on the date of accident. He has not proved his contention that the driver of the insured car was not holding valid and effective driving license on the date of accident and insured has violated the terms and conditions of the policy. Hence, the respondent No.1 is liable to indemnify the respondent No.2 and to pay compensation to the petitioner. Hence, I answer the Issue as above.
20. ISSUE NO.3: In view of above discussion and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,15,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.SCCH-14 13 MVC No.3877/2014
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,15,000/- with interest. In view of policy, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,50,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
(Dictated to the Stenographer, transcribed by him and then corrected by me and pronounced in the open court, on this the 01st day of August 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 14 MVC No.3877/2014
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Lokesh H.B
PW.2 Dr.S.Ramachandra
Respondent' s Nil
Ex.P1 - Copy of FIR with complaint
E.xP2 - Copy of panchanama
Ex.P3 - Copy of IMV report
Ex.P4 - Copy of Wound certificate
Ex.P5 - Copy of Charge Sheet
Ex.P6 - Discharge Summary
Ex.P7 - Medical Bills (12 in nos amounting to
Rs.91,291/-).
Ex.P8 - Prescriptions
Ex.P9 - Advance Receipts
Ex.P10 - X-rays (2 in no2)
Ex.P11 - OPD Card
E.xP12 - Recent X-ray
Respondent's Nil
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 15 MVC No.3877/2014
Dt.01.08.2015
P-MGR
R1-RSS
R2-Exparte
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,15,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,15,000/- with interest. In view of policy, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,50,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 16 MVC No.3877/2014
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.3877/2014 Petitioner/s : Lokesh H.B, S/o Biliyappa, Aged about 29 years, R/at No.129-1-1, 7th cross, 2nd main Road, Govindaraja nagar, Bangalore-560040.
Old Address:
No.308, Mallasandra, Bhuvaneshwari Nagar, V/s Bangalore.
(By pleader Sri MGR) Respondent/s 1.SBI Gen.Insu.Co.Ltd.
Rukmini Towers, Plot Farm Road, Sheshadripuram, Bangalore.
2.Devaraju.M S/o Munishamappa, Muttur Village, Malur Post, Sidlagatta Taluk, Chikkaballapura District.
(R1-By pleader Sri RSS R2- Exparte) WHEREAS, this petition filed on by the petitioner/s above named U/Sec.166 of the M.V.C. Act, praying for SCCH-14 17 MVC No.3877/2014 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
Sri/Smt.Basavaraj Chengti, XVI Addl.Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,15,000/- with interest @ 9% per annum from the date of petition till the date of payment. Future medical expenses do not carry any interest.
The respondents are jointly and severally liable to pay to the petitioner a compensation of Rs.4,15,000/- with interest. In view of policy, the respondent no.1 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.1,50,000/- shall be deposited in the name of the petitioner in any nationalized or scheduled bank for a period of 3 years. Balance amount with interest shall be released in favour of the SCCH-14 18 MVC No.3877/2014 petitioner through account payee cheque with proper identification.
Advocate's fee is fixed at Rs.5,000/-.
Given under my hand and seal of the Court this day of 2015.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA: Bangalore.
By the __________________________________ Petitioner/s Respondent No.1 No.2 __________________________________ Court fee paid on petition 10-00 Court fee paid on Powers 01-00 Court fee paid on I.A. Process Pleaders Fee _____________________________ Total Rs. -----------------------------------
Decree Drafted Scrutinised by
MEMBER, M.A.C.T.
METROPOLITAN: BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 19 MVC No.3877/2014