Bangalore District Court
Prasanna M.G vs Basavaraj Janayi on 21 July, 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,
BANGALORE.
MVC No.5267/2013
Dated this the 21st day of July 2015
Petitioner/s : Prasanna M.G.
S/o Late Giriyappa,
aged about 32 years,
R/a No.13, 9th cross,
3rd main, Prasanthanagar,
Bangalore-79.
And also
Ashok Mahila Tools,
No.9, Patil Puttaiah Industrial Estate,
Mysore Road, Bangalore.
(By pleader Sri BMC)
V/s
Respondent/s 1. Basavaraj janayi
S/o Y.S.Janayi,
No.1306, 11th main,
Hosahalli Extn, Vijayanagar,
Bangalore -40
And also
No.12/4, 1-G, Padma Kuteera
Apartment, 14th main,
Central Excise Layout,
Vijayanagar, Bangalore-40.
2. Bajaj Alliance Gen.Ins.Co.Ltd.
Ground Floor, No.31, TBR Tower,
1st cross, Mission Road,
Near Bangalore stock exchange,
Bangalore - 27.
(R1- By pleader Sri.BSD
R2- By pleader Sri.RSS)
SCCH-14 2 MVC NO.5267/2013
JUDGMENT
This petition is filed by the petitioner U/s 166 of Motor Vehicles Act claiming compensation of Rs.8,02,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
The petitioner was aged 32 years, working as an attender in ASC Degree College and was getting monthly salary of Rs.7,000/-. On 23.05.2013 at about 10.00 A.M., the petitioner was riding his Honda Activa bearing No.KA-02-HL-6572 carefully, cautiously and slowly by following all the traffic rules. When he was proceeding near WOC road, FF Junction Swamy Narayana temple, at that time, Honda Activa bearing No.KA-02-HP-1527 riden by its rider recklessly, unmindfully without observing the movement of other vehicle and pedestrian came from back side and dashed against the petitioner. Due to impact, petitioner fell down resulting fracture of right tibia and deep cut injuries, lacerations, abrasion over the body. Immediately, the petitioner was taken to Sidvin Hospital, Bangalore and he was admitted as an inpatient for a period of one week. He underwent operation for open reduction with internal fixation wherein steel rod with screws were fixed in his right leg and thereafter POP cast was put on his right leg and he was discharged with an advise to take bed rest with regular follow up treatment for six months. He spent Rs.1,00,000/- towards treatment, medicine, conveyance, food and nourishment, etc., The petitioner suffered a lot mentally and physically and he was the only bread earning member in the family. Kamakshipalya Traffic Police have registered SCCH-14 3 MVC NO.5267/2013 Cr.No.81/2013 against the rider of the Honda Activa bearing No.KA-02-HP-1527. The respondents are the owner and insurer of the said vehicle 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.8,02,000/- with cost and interest.
3. In pursuance of the notice, the respondents have appeared before the Court through their respective counsel. The respondent no.1 has not filed his written statement. The respondent no.2 has filed his statement of objections denying the averments of the petition as false and contended that the petition is not maintainable, that the owner and the police have not complied with their mandatory duties, that the rider of insured vehicle and the petitioner were not holding valid and effective driving licence on the date of accident, that there was no negligence on the part of the rider of insured vehicle, but the accident has occurred due to negligence of the petitioner himself who rode his vehicle unmindfully and suddenly came into the center portion of the road and caused the accident, that the compensation claimed by the petitioner is highly excessive, exaggerated, arbitrary and speculative. However, he has admitted that the issuance of policy in favour the respondent no.1. Hence, he has sought for dismissal of the petition with costs.
4. On the basis above pleadings, the following issues were framed:
SCCH-14 4 MVC NO.5267/20131. Whether the petitioner proves that he sustained grievious injuries in the nature of permanent disablement on 23.05.2013 at about 10.00 a.m., Near WOC Road, FF Junction Swamy Narayana Temple, Bangalore, in an accident arising due to rash and negligent riding of rider of Honda Activa bearing No.KA- 02-HP-1527?
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 two witnesses as PW.2 and 3. He has got marked documents as Ex.P1 to P17. The respondent No.2 has examined the rider of insured vehicle as RW.1. He has not produced any documents on his behalf. 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.2,21,000/-
from the respondent No.2.
Issue No.3 : As per final order :
for the following:
REASONS
8. ISSUE NO.1: The petitioner has examined himself as PW.1 and examined two witnesses as PW.2 and 3. He has got marked copies of police records as Ex.P1 to 4 and 6 and got marked medical records as Ex.P5, 7 to 10, 14 to 17. The respondent no.1 has no defence and the respondent no.2 has SCCH-14 5 MVC NO.5267/2013 examined rider of Honda Activa bearing No.KA-02-HP-1527 as RW.1.
9. PW.1 Prasanna is the injured petitioner and he has reiterated the entire averments of the petition and stated that the accident has occurred due to rash and negligent riding of the rider of Honda Activa bearing No.KA-02-HP-1527 and he sustained fracture of right tibia, deep cut injuries, lacerations and abrasion all over the body. In cross-examination, he has admitted that there is a cross near the place of accident where vehicles take 'U' turn, that his vehicle was damaged on its front portion as well as back portion. He has denied the suggestion that the accident has occurred due to his negligence and there was no negligence on the part of the rider of Honda Activa bearing No.KA- 02-HP-1527. The facts elicited from PW.1 during the cross- examination are not helpful to the respondent no.2 to disprove the case of the petitioner and prove his defence.
10. PW.2 Dr.Kiran has produced case sheet and X-ray pertaining to the petitioner which are marked as Ex.P14 and 15. His evidence is in respect of production of the documents before the court. Hence, his evidence is not helpful to decide this issue.
11. PW.3 Dr.Ramesh has deposed that the petitioner sustained spiral comminuted distal tibia fracture of right leg and he underwent CRIF with IL nailing. In cross-examination, he has admitted that the fracture of the petitioner is well united. There is nothing on record to disbelieve the oral evidence of PW.1 as to the injury caused to the petitioner. The suggestion of the respondent no.2 indicates that a fracture injury was caused to the petitioner.
SCCH-14 6 MVC NO.5267/201312. RW.1 Jayalakshmi is the rider of Honda Activa bearing No.KA-02-HP-1527 and she has deposed that the petitioner Prasanna came on Honda Activa all of a sudden and due to which both the vehicle colluded together and accident occurred. She has not stated that the accident has occurred due to negligent of the petitioner. However, she has admitted that the police have registered a case against her and after receiving summons, she went to court and paid fine. She has further stated that her vehicle was not damaged in the accident. IMV report at Ex.P4 corroborates the evidence of RW.1 and it reveals that there were no damages to the Honda Activa bearing No.KA-02-HP-1527. Though the vehicle of the respondent no.1 was not damaged, it cannot be said that Honda Activa bearing No.KA-02-HP-1527 was not involved in the accident and has not caused any accident to the vehicle of the petitioner. The respondent no.2 has admitted the occurrence of the accident and involvement of insured vehicle in the accident. Admission of RW.1 that she went to court and paid fine is sufficient to believe that there was sole negligence on the part of the rider of Honda Activa bearing No.KA-02-HP-1527 for the accident. If RW.1 was not negligent, she would not have appeared before court and paid fine.
13. Copies of police records reveal that Kamakshipalya Traffic Police have registered Cr.No.81/13 against the rider of Honda Activa bearing No.KA-02-HP-1527 for the offences punishable U/Sec.279 and 338 of IPC on the basis of information given by the petitioner in the hospital at 7.30 P.M., on 23.05.2013. There was no delay in lodging FIR or in admitting the petitioner to the hospital. The police have conducted investigation SCCH-14 7 MVC NO.5267/2013 and filed chargesheet against the rider of Honda Activa bearing No.KA-02-HP-1527. RW.1 is none other than the chargesheeted rider of the said vehicle and she has admitted that she went to court and paid fine. This goes to show that the rider of the Honda Activa bearing No.KA-02-HP-1527 has admitted her guilt before the court. Therefore, the allegations made in the chargesheet against the said rider can be believed to be true and correct.
14. Oral evidence of PW.1 and 3 and contents of wound certificate and discharge summary at Ex.P5 and 10 disclose that the petitioner sustained fracture of right tibia, abrasion over right foot and left ankle, that he was admitted in Sidvin Hospital for 4 days from 23.05.2013 to 26.05.2013 and underwent surgery. The petitioner was on bed rest and follow up treatment after discharge. Evidence of PW.1, 3 and contents of Ex.P1 to 10, 14 to 17 substantiate averments of the petition. Evidence of RW.1 remained uncorroborated. Her admission goes against the defence of RW.1. Hence, I hold that the petitioner has succeeded to prove that the accident has occurred due to rash and negligent riding of the rider of Honda Activa bearing No.KA-02-HP-1527 i.e., by RW.1 and the petitioner sustained grievous injury in the nature of permanent disablement. Consequently, I answer the issue in affirmative.
15. ISSUE NO.2: PW-1 Prasanna has deposed about his age, occupation and income. He has denied the suggestions given to him by the counsel for the respondent no.2 as false. However, he has admitted that on the date of accident, he was getting salary of Rs.5,300/- and after the accident his salary is increased SCCH-14 8 MVC NO.5267/2013 and presently, he is getting Rs.7,500/- P.M., He has stated that he joined duties in August-2013. He has further admitted that he continued to do the same job in the same college. However, he has denied the suggestion that he has received salary for the leave period.
16. PW.3 Dr. Ramesh has examined the petitioner to assess his permanent disability. He has stated that the fracture of the petitioner is united with implants in situ. He has assessed the permanent physical disability as 26% to the right lower limb which is 13% to the whole body. He has stated that the petitioner has to undergo one more surgery for removal of implants. Except bare denials, nothing is elicited from him to disbelieve his evidence, but he has admitted that the fracture of the petitioner is well united and he has to undergo surgery for removal of implants. Under the circumstances, I am of the opinion that if the disability of the petitioner to the whole body is considered as 1/3rd of the disability of right lower limb, it will meet the ends of the justice. 1/3rd of 26% comes to 8.66% which can be rounded to 9%. I am of the opinion that the petitioner is suffering from permanent physical disability of 9% to his whole body, but the petitioner has continued his job in the same college. His salary is enhanced after accident. Therefore, it can be held that the petitioner did not suffer any loss of earning capacity due to accidental injuries. Under the circumstances, the petitioner is not entitled for any compensation towards loss of future income. However, the disability will come in the way of the petitioner in his day to day life. He is facing several difficulties which may SCCH-14 9 MVC NO.5267/2013 persist in future. Hence, the petitioner is entitled for compensation towards disability and loss of amenities.
17. The petitioner has produced copy of Voter ID wherein his date of birth is shown as 01.06.1986, but the petitioner has pleaded and deposed before the court that he was aged 32 years on the date of accident. In medical records as well as police records, his age is shown as 32 years. Therefore, I consider his age as 32 years.
18. The petitioner has produced leave certificate and salary certificate which are marked as Ex.P11 and 12. The leave certificate is issued by the hospital, whereas salary certificates are issued by the Institution in which the petitioner was/is working as an attender. His occupation is shown as attender in police records. Hence, I hold that the petitioner was/is working as an attender at ASC Degree College and ASC Study Center, Bangalore.
19. Salary certificate at Ex.P12 reveal that the petitioner is getting total salary of Rs.11,650/-. These documents are not helpful to prove the salary of the petitioner as on the date of accident. However, looking to his present salary, I am of the opinion that if the salary of the petitioner is considered as Rs.6,000/- p.m., it would meet the ends of justice. Copy of wound certificate and discharge summary at Ex.P5 and 10 coupled with oral evidence of PW.1 and 3 reveal that the petitioner sustained spiral comminuted distal tibia fracture of right leg, that he underwent surgery with implants, that the petitioner was admitted in the hospital from 23.05.2013 to 26.05.2013. He was SCCH-14 10 MVC NO.5267/2013 in the hospital for 4 days. PW.1 has deposed that he resumed to duty in the month of August-2013. It means, the petitioner was on follow up treatment and bed rest for about 9-10 weeks. The respondent no.2 has contended that the petitioner has received salary for the period of bed rest and treatment, but his contention is not supported by any evidence. He has also contended that the petitioner has got reimbursement of his medical bills, but there no evidence to prove the same. The petitioner has produced medical bills amounting to Rs.91,564/- which are marked as Ex.P8. The bills are supported by prescriptions and advance receipts at Ex.P7 and 9. Case sheet and X-ray are at Ex.P14 and
15. Except bare denials, nothing is elicited from PW.1 to prove that the medical bills are created for this case. However, bill at Sl.No.30 is dated 16.03.2013. The accident has occurred on 23.05.2013 and therefore, amount of bill at Sl.N.30 is to be deducted from the total medical expenses. After deduction of Rs.470/-, the net amount of medical bills comes to Rs.91,094/-. Therefore, I am of the opinion that the petitioner is entitled for a compensation of Rs.40,000/- towards pain and sufferings, Rs.91,000/- towards medical expenses, Rs.10,000/- towards nourishment, conveyance and attendant charges and Rs.15,000/- towards loss of income during the period of treatment and bed rest.
20. The petitioner has to undergo one more surgery for removal of implants. He is suffering from permanent disability of 9% to his whole body from injury to right leg. He is facing several difficulties which may persist in future. Since, he continued the same job in the same college and since, his salary is enhanced, SCCH-14 11 MVC NO.5267/2013 he is not entitled for any compensation towards loss of future income. However, the petitioner is entitled for a compensation of Rs.15,000/- towards future medical expenses, Rs.25,000/- towards disability and Rs.25,000/- towards loss of amenities. Thus, the petitioner is entitled for just and reasonable compensation as under;
1. Pain and suffering Rs. 40,000/-
2 Medical expenses Rs. 91,000/-
3 Nourishment, conveyance and Rs. 10,000/-
attendant charges 4 Loss of income during laid up Rs. 15,000/-
period 5 Disability Rs. 25,000/-
6 Loss of amenities Rs. 25,000/-
7 Future medical expenses Rs. 15,000/-
Total Rs.2,21,000/-
The petitioner is further entitled for interest @ 9% p.a., from the date of petition till the date of payment.
Liability
21. The respondents are the owner and insurer of the Honda Activa bearing No.KA-02-HP-1527. The petitioner has proved that the accident has occurred due to rash and negligent riding of the rider of said Honda Activa. RW.1 has also admitted that she had paid fine before concerned criminal court. There is no evidence to believe that the respondent no.1 has violated the terms and conditions of the policy. Therefore, the respondents are jointly and severally liable to pay compensation and interest to the petitioner as calculated above. In view of policy, the respondent no.2 is liable to deposit the amount before the court. Hence, I answer the Issue as above.
SCCH-14 12 MVC NO.5267/201322. 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.2,21,000/- 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.2,21,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.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.2,500/-. Draw award accordingly.
(Dictated to the Stenographer, transcribed by him and then corrected by me and pronounced in the open court, on this the 21st day of JULY 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes & MACT, Bangalore.SCCH-14 13 MVC NO.5267/2013
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Prasanna
PW.2 Dr.Kiran
PW.3 Dr.Ramesh B
Respondent' s
RW.1 Jayalakshmi
Ex.P1 Copy of FIR with complaint
E.xP2 Copy of Panchanama
Ex.P3 Copy of Sketch
Ex.P4 Copy of IMV report
Ex.P5 Copy of wound Certificate
Ex.P6 Copy of Charge Sheet
Ex.P7 Prescriptions (10 in nos)
Ex.P8 Medical bills
Ex.P9 Advance receipts (3 in nos)
Ex.P10 Discharge Summary
Ex.P11 Leave Certificate
Ex.P12 Salary Certificate (2 in nos)
Ex.P13 Copy of Voter ID Card
Ex.P14 Case sheet
Ex.P15 X-rays
Ex.P16 OPD card
E.xP17 X-ray
Respondent's Nil.
XVI ADDL.JUDGE,
Court of Small Causes & MACT,
Bangalore.
SCCH-14 14 MVC NO.5267/2013
Dt.21.07.2015
P-BMC
R1-BSD
R2-RSS
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.SCCH-14 15 MVC NO.5267/2013
The petitioner is entitled for a compensation of Rs.2,21,000/- 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.2,21,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.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.2,500/-. Draw award accordingly.
XVI ADDL.JUDGE, Court of Small Causes & MACT., Bangalore.SCCH-14 16 MVC NO.5267/2013
AWARD SCCH NO.14 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY MVC No.5267/2013 Petitioner/s : Prasanna M.G. S/o Late Giriyappa, aged about 32 years, R/a No.13, 9th cross, 3rd main, Prasanthanagar, Bangalore-79.
And also Ashok Mahila Tools, No.9, Patil Puttaiah Industrial Estate, Mysore Road, Bangalore.
(By pleader Sri BMC) V/s Respondent/s 1. Basavaraj janayi S/o Y.S.Janayi, No.1306, 11th main, Hosahalli Extn, Vijayanagar, Bangalore -40 And also No.12/4, 1-G, Padma Kuteera Apartment, 14th main, Central Excise Layout, Vijayanagar, Bangalore-40.
2. Bajaj Alliance Gen.Ins.Co.Ltd.
Ground Floor, No.31, TBR Tower, 1st cross, Mission Road, Near Bangalore stock exchange, Bangalore - 27.
(R1- By pleader Sri.BSD R2- By pleader Sri.RSS) 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.5267/2013 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.2,21,000/- 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.2,21,000/- with interest. In view of policy, the respondent no.2 is directed to deposit the amount before court within one month from the date of order.
After deposit, Rs.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.
SCCH-14 18 MVC NO.5267/2013Advocate's fee is fixed at Rs.2,500/-.
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.5267/2013