Bangalore District Court
Sri. Isran Quereshi vs The Branch Manager on 28 January, 2022
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-9)
Present: Umesha.H.K, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 28th day of January, 2022
MVC.No.7275/2018
PETITIONER : Sri. Isran Quereshi,
S/o Irshad Quereshi,
Aged about 21 years,
Residing at No.56,
7th Cross, 1st Main,
Gandhinagar,
Nagawara Mian Road,
K.G.Halli,
Bengaluru-560045.
(By Sri.Naushad Pasha. Adv.,)
-Vs-
RESPONDENTS : 1. The Branch Manager,
Reliance Gen. Insurance Co. Ltd.,
Unnati Arcade, 5/111 & 6/112,
1st Floor, 1st Block,
Dr. Rajkumar Road, 1st Main Road,
Rajajinagar, Bangalore-560010.
(By Sri.A.N.Hegde - Adv.,)
2. Harish.G.,
S/o.Govindappa,
R/at No.13, NMH Layout,
6th Main, Nagasandra,
Sidedahalli,
Bangalore - 560073.
(By Sri.V. Ravanappa - Adv.,)
SCCH-9 2 MVC:7275/2018
JUDGMENT
This is the petition filed by the petitioner under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.50,00,000/- for the injuries sustained by the petitioner in RTA.
2. The case of petitioner in nutshell are as under:
On 02.05.2018 at about 6.00 a.m., while petitioner was riding the Access Scooter bearing Reg.No.KA-03-JJ-1568 along with pillion namely:- one Tousif Khan, towards St.Marks Road, on M.G.Road, Bangalore, when they reached near Anil Kumble Circle, at that time, all of a sudden driver of the Car, bearing Reg.No.KA-01-AD-4213 came from Queens Circle, with high speed, in a rash and negligent manner, on wrong lane and dashed against them, due to which he sustained grievous injuries. Due to tremendous impact, petitioner fell down and sustained grievous injuries.
3. Immediately he was shifted to Bowring and Lady Curzon hospital, wherein he took first aid treatment at Bowring Hospital and for further treatment he was shifted to V- care Hospital, R.T.Nagar, wherein he took treatment as inpatient and undergone for long PEN (Siris Nail) surgery on SCCH-9 3 MVC:7275/2018 02.05.2018 and was discharged on 06.05.2018 and advised to take bed rest for three months. He has spent more than Rs.3,00,000/- towards medical and other incidental expenses.
Prior to the accident he was hale and healthy and was working as CSR Neojit Technology and drawing salary of Rs.15,000/- per month and was contributing his entire income towards the maintenance of family. The Cubbonpark Traffic Police Station have registered the case in Cr.No.16/2018 U/Sec. 279 and 337 of IPC. The respondent No.1 is the insurer and respondent no.2 the RC owner of the Car, bearing No.KA-01- AD-4213. Hence, both the respondents are jointly and severally liable to pay the compensation. Hence, the petition.
4. After service of summons, the respondent no.1 & 2 appeared through their counsel and filed their written statement.
5. The respondent no.1/insurance company in its written statement denied all the averments made in the petition. This respondent has admitted the vehicle bearing no.KA-01-AD-4213 was duly insured this policy of insurance but their specific contention is that the insured vehicle involved in the accident subject to the validity of D.L and SCCH-9 4 MVC:7275/2018 other conditions of insurance policy. It is further contended that the alleged accident took place only due to the negligence of the rider of the two wheeler, in which petitioner was proceeding as a pillion rider. The petitioner rode the vehicle without having valid and effective DL and without wearing helmet and the pillion rider was also not wearing helmet. The petitioner suddenly swerved to his right turn without giving any signal or indication and came in wrong lane of motion of the alleged offending vehicle, this negligence is also contributing the accident and thereby, the alleged accident took place only on the part of rider of the scooter bearing no.KA-03-JJ-1568. It is specifically denied the age, avocation, income and the injuries sustained by the petitioner. The compensation claimed by the petitioner is highly excessive and exorbitant one. Hence, this respondent prays for dismissal of the petition.
6. The 2nd respondent in his written statement denied all the petition averments in toto and contended that this claim petition is not maintainable either in law or on facts of the case. It has contended that the vehicle belongs to the respondent no.2 was driven by its driver holding driving SCCH-9 5 MVC:7275/2018 license No.KA-13-20160012743 and the vehicle was also having authorized permit to fly throughout India. The vehicle was validly insured with Respondent no.1/insurance company. It is specifically denied the age, avocation, income and the injuries sustained by the petitioner. The alleged accident has only due to the rash and negligent riding of the rider of the scooter and there is no fault on the part of driver of the Car in the alleged accident. The compensation claimed by the petitioner is highly excessive, exorbitant one and there is no nexus to the accidental injuries. Hence, this respondent prays for dismissal of the petition.
7. On the basis of the above contentions, the following issues have been framed:
1. Whether the petitioner proves that on 02.05.2018 at about 6.00 a.m., when he was proceeding in his access Scooter, bearing Reg.No.KA-03-JJ-1568 along with one Toushif Khan as a pillion rider, at that time one Tata Indica V2LS Car bearing Reg. No. KA-01-AD-4213 came from Queens Circle in rash and negligent manner with high speed endangering human life and dashed against the petitioner's scooter. Due to impact petitioner fell down and sustained grievous injuries in the accident as alleged in the petition?SCCH-9 6 MVC:7275/2018
2. Whether petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
8. In order to substantiate his contention petitioner himself examined as PW1 and got marked documents Ex.P1 to Ex.P19. Dr.Ateeq-Ur-Rehman, Orthopedic Surgeon is examined as PW.2 and got marked documents as Ex.P20 & 21 and closed his side. The respondents have not adduced any evidence though opportunity was afforded.
9. My findings on the above issues are as under:-
Issue No.1: In the Affirmative
Issue No.2: Partly in the Affirmative;from
Respondent No.1
Issue No.3: As per final order; for the following;
REASONS
10. Issue No.1:- Since the burden to prove the issue no.1 is on the petitioner, he has to prove that on 02.05.2018 at about 6.00 a.m., when he was riding the access scooter bearing Reg. No.KA-03-JJ-1568 and along with his his friend one Tousif khan as a pillion rider, on M.G.Road, Bangalore, when they reached near Anil Kumble Circle, at that time, all of a sudden driver of the Car SCCH-9 7 MVC:7275/2018 bearing Reg.No.KA-01-AD-4213 came with high speed, in a rash and negligent manner, on wrong lane and dashed against them, due to which he sustained grievous injuries etc.
11. In order to prove the said contention the petitioner himself examined as PW.1 and during the course of his chief examination he has reiterated the petition averments and specifically stated when they came near Anil Kumble Circle, all of a sudden Car bearing No.KA-01-AD-4213 driven by its driver in high speed, in a rash and negligent manner without observing the traffic rules and came on wrong lane and dashed against their scooter, due to which he sustained grievous injuries on head and to both legs. Thereafter, he was shifted to hospital. He further deposed the accident was caused due to the rash and negligent driving of the driver of the car. He was thoroughly cross-examined by learned counsel for respondent no.1 & 2 and during cross-examination learned counsels have suggested the accident was not caused on the part of the driver of the car, he specifically denied the said material suggestion. They further suggested that the alleged accident was caused due to his rash and negligent act and the said SCCH-9 8 MVC:7275/2018 suggestion was also specifically denied by petitioner. He also denied other specific suggestions of learned counsel for respondents.
12. On the other hand, respondents have not adduced any evidence.
14. On perusal of the oral evidence placed by petitioner, it is crystal clear the accident was caused due to the rash and negligent driving of the driver of Car bearing Reg.No. KA-01- AD-4213. To substantiate his oral evidence petitioner has also placed reliance on Ex.P1, 7 to 11 documents. Ex.P1 is the certified copy of FIR and complaint, Ex.7 charge sheet, Ex.P8 spot mahazar, Ex.P9 is the sketch, Ex.P10 is the notice U/Sec.133 of M.V.Act and Ex.P11 is the IMV report.
In Ex.P1/FIR & complaint in column no.6 it is shown that the driver of the Car, bearing No.KA-01-AD-4213 is shown as accused and complaint was lodged against the driver of the said car by one Ishan Kureshi. Ex.P8 is the spot mahazar, which discloses I.O has drawn the spot mahazar in the presence of witnesses, further it discloses that the alleged accident was taken place on 02.05.2018 at about 6.00 a.m., on SCCH-9 9 MVC:7275/2018 M.G.Road near Anil Kumble Circle. Ex.P9 is rough sketch, Ex.P11 is the IMV report, which discloses that the offending vehicle is involved in the alleged accident. Ex.P19 is the wound certificate which discloses after accident petitioner had taken treatment at V-Care Hospital, which discloses he was admitted to hospital with history of RTA. Ex.P7 is the charge sheet filed against the driver of the Car, bearing Reg.No.KA-01-AD-4213. All these documents and oral evidence placed by petitioner prima facie establishes that the accident was caused due to rash and negligent driving of the driver of the Car, bearing Reg.No.KA-01-AD-4213.
15. The contention of respondent no.1 that the driver had no valid D.L etc. will be discussed later. It is also an undisputed fact that the petitioner has sustained injuries due to the accident. To show that the accident was due to the rash and negligent driving of driver of the Car, bearing Reg.No.KA- 01-AD-4213, the petitioner produced the FIR registered in respect of the accident as per Ex.P1. Admittedly, after investigation Cubbon Park Traffic PS have filed charge sheet against the driver of the Car. The filing of charge sheet in the SCCH-9 10 MVC:7275/2018 Criminal case is prima-facie evidence for this case to prove that the accident was due to the rash and negligent driving of the driver of car. In fact the proof of accident itself is sufficient for the purpose of this case, as held by the Hon'ble Supreme Court in a decision reported in 2001 ACJ 1975 (Sri. Kumaresh V/s. The Divisional Manager, National Insurance Com. Ltd., and another) it was held in the above decision that, in the motor accident case strict proof of rash and negligent driving need not be established, as was required in criminal cases. It is sufficient, if it is established that the claimant has sustained injuries as a result of the accident. In view of the ratio laid down by the Hon'ble Supreme Court in the above decision and also prima-facie evidence produced by the petitioner, it is proved and established that the accident was occurred due to rash and negligent driving of driver of the Car. On perusal of evidence available on record, it is crystal clear that the accident was caused by the driver of the Car, bearing Reg.No.KA-01-AD- 4213. Thus, this Tribunal is of the opinion that, the petitioner has proved issue no.1. Hence, I answer issue no.1 in the affirmative.
SCCH-9 11 MVC:7275/2018ISSUE NO.2:
16. It is the case of petitioner that due to accident he sustained fracture injuries and caused permanent disability i.e., fracture of comminuted sub trochanteric fracture left femur. Surgery was done on 03.05.2018 under spinal anesthesia, closed reduction of left femur with Sirus Nail (PFN) long nail) and was discharged with an advice to 10 weeks rest. The petitioner also contended that he incurred expenses more than Rs.3,00,000/- for medical expenses and incidental expenses.
He further deposed that he was aged about 21 years, hale and healthy and working as CSR at Neojit Technology and earning Rs.15,000/- per month. Though learned counsel for respondent no.1 has cross-examined him at length nothing worth has been elicited to disbelieve his oral testimony.
17. In the instant case, the petitioner claimed whole body disability at 22.72% due to injuries sustained by him in the alleged accident. To substantiate said contention he examined PW.2 Dr.Atheeq Ur Rehman, Consultant Orthopedic surgeon at V-Care Hospital, who assessed the disability and has deposed before the Court that petitioner came to their SCCH-9 12 MVC:7275/2018 hospital with history of RTA on 02.05.2018 and he has produced case sheet and check X-rays at Ex.P20 & 21. As per the said records petitioner was treated and he was diagnosed comminuted sub trochanteric fracture of left femur and surgery was done under spinal anesthesia reduction of left femur with siruss nail (PFN) and long nail.
18. PW.2 further deposed on 05.10.2021 clinical examination and X-rays shows and the disability was done as per the, guidelines and Gazette Notification issued by Ministry of Social Justice and Empowerment Govt. of India. He assessed that the petitioner suffers the permanent residual physical disability of left lower limb to the extent of 22.72% and to the whole body 8.57%.
21. On perusal of evidence PW.2 it is crystal clear that the petitioner has undergone surgery. During the cross- examination PW.2 stated at the time of discharge, he conditions was normal but he can do the daily activities with much difficulty.
22. During the chief-examination Doctor has opined that the petitioner is suffering from disability permanent residual physical disability of left lower limb to the extent of 22.72% SCCH-9 13 MVC:7275/2018 and to the whole body 8.57%. On the contrary except some formal denial respondents have not placed any oral or documentary evidence to show that the petitioner is not having disability to the extent of 22.72% to the whole body. However, PW2 is the treated doctor and he has assessed the disability. Considering the nature of injuries and duration of treatment and age of petitioner etc., this Tribunal is of the opinion that the said disability appears to be reasonable one and permanent disability to the extent 8.57% to the whole body is considered, which would meet the ends of justice.
23. Petitioner contended that at the time of accident he was working as CSR at Neojit Technology and was earning monthly salary of Rs.15,000/- and in support of the said contention he has relied on the document Ex.P16 i.e., certificate issued by Neojith Technology, which discloses he petitioner was employed in the said company from 20.03.2018 as Telesales Executive and his salary per month is Rs.9,000/- and he was eligible for cash incentive of Rs.6,000/- for achieving set monthly target. But, the said document cannot be taken into consideration because the petitioner has not examined the author of Ex.P16. Further petitioner has not SCCH-9 14 MVC:7275/2018 produced any other document to show that he was appointed in the said company and drawing salary of Rs.15,000/- per month. In the absence of such material evidence, it cannot be taken into consideration and it will not help the petitioner in any way. Since in the absence of any income proof this Tribunal has taken the notional income of petitioner at the rate of Rs.9,000/- p.m., which would meet the ends of justice to award just compensation to the petitioner.
24. The next question would be, what is the amount to which the petitioner is entitled to.
Here, I feel it is correct to reproduce the law declared by the Hon'ble Apex Court in the decision reported in 2011 (1)- SCC -Page- 343- in the case of Rajkumar V/s Ajay Kumar, wherein, at para No.5 of the Judgment, the Hon'ble Apex Court has held as under:
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.SCCH-9 15 MVC:7275/2018
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non- pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). Keeping in view of the Law declared by the Apex Court in the above said decision, I conclude that the petitioner is entitled by compensation under the head expenses towards the heads mentioned below:
a) PAIN, SHOCK AND AGONY:The petitioner sustained fracture of comminuted sub trochanteric fracture left femur.
Surgery was done on 03.05.2018 under spinal anesthesia closed reduction of left femur with cyrus nail (PFN long nail.) and was discharged with an advise to take bed rest. On SCCH-9 16 MVC:7275/2018 perusal of discharge summary and wound certificate, the petitioner has sustained fracture injuries and he has suffered a lot. Hence, an amount of Rs.50,000/- is awarded under the head pain and sufferings, it would meet the ends of justice.
b) MEDICAL EXPENSES: The petitioner has stated in his evidence that he has incurred medical expenses of Rs.3,00,000/- towards treatment, medicine, conveyance etc., In support of his contention he has produced medical bills and prescriptions at Ex.P17 worth Rs.76,552/-.
But as per Ex.P17 he has spent only Rs.76,552/- towards medical expenses. I have carefully perused all the medical bills and prescriptions and it is noticed that they had come into existence after the date of accident and in all the bills and prescriptions the name of the petitioner does find place. In these medical bills and prescriptions, the names of medicines and quantum of medicines and price of the medicine are all mentioned. Thus, I do not see any reason to doubt the information available in the said medical bills. Hence, I accept that, petitioner had spent Rs.76,552/- towards his medical expenses. Therefore awarded Rs.76,552/- under this head and it would meet the ends of justice.
SCCH-9 17 MVC:7275/2018
c) ATTENDANT, CONVEYANCE, FOOD, DIET, NOURISHMENT AND OTHER INCIDENTAL EXPENSES: In this regard the petitioner has adduced or placed any specific evidence. Any how on perusal of records i.e.,Ex.P13 discharge summary and evidence available on record the petitioner has taken the treatment as inpatient at V-care Hospital from 02.05.2018 to 06.05.2018 i.e., period of 4 days. It is necessary that one attendant is required to attend the patient and look after him. So, atleast an amount of Rs.1,000/- per day minimum is required for conveyance, food, nourishment and other incidental expenses. So, considering the same an amount of Rs.4,000/- is awarded under this head and it would meet the ends of justice.
d) LOSS OF INCOME DURING TREATMENT PERIOD: As per the evidence available on record petitioner has taken treatment as inpatient for a period of 4 days. As discussed above petitioner has not placed any evidence to show that he was earning Rs.15,000/- per month as Telesales Executive. In the absence of such evidence, the tribunal feels notional income of Rs.9,000/- p.m., has to be taken into consideration. Considering the nature of injuries, he requires at least two SCCH-9 18 MVC:7275/2018 months to recover. So he has lost two months salary. Considering the same two months salary i.e., Rs.18,000/- is awarded under this head and it would meet the ends of justice.
e) LOSS OF FUTURE INCOME OR EARNINGS: The petitioner's age in the petition is mentioned as 21 years as on the date of the petition. As per Ex.P14/D.L which discloses the date of birth of petitioner as 21.11.1996 i.e, 22 years as on the date of accident. As per the decision of Hon'ble Apex Court, in Sarala Verma vs. Delhi Transport Corporation, the multiplier is 18 for the age group of 15 to 25 years. As discussed above this court has taken notional income of Rs.9,000/- p.m. The of earning is calculated as below:
Rs.9,000/-x12xM18x8.57/100=Rs.1,66,600/-. Hence loss of earning of Rs.1,66,600/- is awarded under this head.
f) FUTURE MEDICAL EXPENSES: PW.2 has deposed petitioner needs one more surgery for removal of implants, which may costs Rs.40,000/-. So, considering the said evidence of PW.2 and the nature of injuries sustained and disability found, this Tribunal feels an amount of Rs.15,000/-SCCH-9 19 MVC:7275/2018
is sufficient for removal of implants. Hence, the same is awarded under this head.
g) LOSS OF FUTURE AMENITIES: The petitioner has to live rest of his life along with the said disability of his day to day comforts. Hence, there is a loss of future amenities and if compensation of Rs.10,000/- is awarded it would meet the ends of justice. Hence, the petitioner is entitled for Rs.10,000/- for loss of future amenities.
25. Now the total compensation awarded stands as follows:-
1. Pain and suffering Rs. 50,000-00
2. Medical expenses Rs. 76,552-00
3. Food and nourishment, conveyance &attendant Rs. 4,000.00 charges
4. Loss of earning during Rs. 18,000.00 treatment period
5. Loss of future income Rs. 1,66,600.00
6. Loss of future amenities Rs. 10,000.00
7. Future medical expenses Rs. 15,000.00 Total Rs. 3,40,152.00 SCCH-9 20 MVC:7275/2018 So considering all the above heads, the petitioner is entitled for total compensation of Rs.3,40,152.00.
Liability:-
26. The respondent no.1 company being the insurer of Car, bearing No.KA-01-AD-4213 is liable to pay compensation to the petitioner. Therefore, the respondent no.1 and 2 are jointly and severally liable to pay compensation. Further respondent no.1 is liable to pay compensation within two months from the date of this order with interest at 6% p.a., from the date of petition till realization. Therefore, I answer issue No.2 partly in the affirmative.
Issue No.3:
28. In view of my above discussions, I proceed to pass the following:-
ORDER The petition filed by the petitioner U/s 166 of Motor Vehicle Act 1989 is hereby partly allowed with costs.
The petitioner is hereby entitled to for total compensation of Rs.3,40,152.00 (Rupees Three Lakhs Forty Thousand One Hundred Fifty Two Only) {The future medical expenses of Rs.15,000/-
doesn't carry any interest} with interest SCCH-9 21 MVC:7275/2018 at the rate of 6% per annum from the date of petition till realization.
The Respondent No.1 and 2 are jointly and severally liable to pay aforesaid compensation amount to the Petitioner.
Further, Respondent No.1 being Insurer of the offending vehicle is directed to deposit the compensation amount together with 6% interest within 60 days, from the date of this order.
After deposit, 75% of compensation amount shall be disbursed in favour of petitioner directly through E-Payment by obtaining the bank account details from the petitioner and remaining 25% shall be deposited in the name of petitioner for a period of 3 years in any nationalized bank or the choice of the petitioner.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to stenographer, directly on computer, typed by her, revised, corrected and then pronounced by me in the open court, on this the 28th day of January 2022) (Umesha.H.K) Judge, Court of Small Causes & MEMBER: MACT, Bengaluru.
SCCH-9 22 MVC:7275/2018ANNEXURE List of witness examined for the petitioner:
PW.1 Isran Quereshi PW.2 Dr.Ateeq-Ur-Rehman
List of Documents exhibited for the petitioner:
Ex.P1 FIR with complaint Ex.P2 IMV report Ex.P3 2 Inpatient Bill Ex.P4 Discharge summary Ex.P5 V-care diagnostic report Ex.P6 5 X-rays Ex.P7 Charge sheet Ex.P8 Spot Mahazar Ex.P9 Sketch Ex.P10 Notice U/Sec.133 Ex.P11 IMV report Ex.P12 OPD Book Ex.P13 Discharge summary Ex.P14 Notarized copy of DL EX.P15 Notarized copy of Aadhaar card Ex.P16 Salary certificate Ex.P17 23 Medical bills Ex.P18 V-care hospital bills Ex.P19 Wound certificate Ex.P20 Case sheet Ex.P21 Check X-ray
List of witness examined for the respondents:
Nil SCCH-9 23 MVC:7275/2018 List of Documents exhibited for the respondents:
Nil Judge Court of Small Causes & MEMBER: MACT, Bengaluru.