Bangalore District Court
Sri.Srinivasa vs Sri.Marigowda.B.E on 27 April, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 27th DAY OF APRIL 2017
PRESENT; Sri.A.SAMIULLA B.Sc, LL.B,
XIX Addl SCJ & MACT.
MVC.No.3792/2016
Petitioner : Sri.Srinivasa,
S/o Timmegowda,
24 years,
R/at: Dunturu Village,
Sathanuru Hobli,
Kanakapura Taluk,
Ramanagar District- 562126.
Residing at No.33, Main Rod,
Dunturu Kanakapura Taluk,
Ramanagara District.
(By Sri.Rachappa)
V/s
Respondents : 1. Sri.Marigowda.B.E.
S/o Late Eregowda,
Bhoohalli Village,
Sathanur Hobli,
Kanakapura Taluk, S.O.
Ramanagar-562117.
SCCH 17 2 MVC 3792/2016
2. Cholamandalam MS General
Insurance Co. Ltd.,
Regional Office,
No.135/5, 2nd Floor,
15th Cross, J.P. Nagar,
3rd Phase, Bangalore-78.
(R-1 ex parte
R-2 by Sri.HKR)
J U D G M E N T
Petition is filed under Section 166 of MV Act seeking compensation of Rs.10,00,000/- for the injuries sustained in a road traffic accident.
2. Petitioner pleaded that, on 23rd day of October 2015 at about 8.50 a.m., the petitioner was riding motorcycle bearing No.KA-51/EA-3482 with pillion rider Deepak on the left side of Bhuhalli-Doontoor road, near Hosakere, at which point of time a Tractor bearing No.KA-42/T-4660 came there being driven by its driver in high speed, rash and SCCH 17 3 MVC 3792/2016 negligent manner endanger to human life and applied sudden brakes without any indication in the middle of road, in that process accident occurred, due to impact he and pillion rider fell to ground and sustained injuries. He was shifted to Kanakapura Government Hospital, wherein first aid was administered and then shifted to KIMS Hospital, wherein he took treatment as inpatient. He was hale and healthy earlier to the accident, due to accidental injuries he becomes disabled. Jurisdictional police registered case against the driver of Tractor, which is owned by the first respondent and insured with the second respondent respectively, who are liable to pay compensation. Hence, petition is filed.
3. First respondent is placed ex parte. Second respondent resisted the claim petition by filing written SCCH 17 4 MVC 3792/2016 statement denying the petition averments in toto and inter alia contended that, the petition is bad for violation of Section 134(c) and 158(6) of MV Act. It admits the issuance of policy but disown its liability by contending that the owner had entrusted the vehicle to a person not possessing valid driving licence. Petition is bad for non-joinder of necessary parties i.e., owner and insurer of motorcycle. The alleged accident has taken place due to the negligence of rider of motorcycle, who rode the same in rash and negligent manner without possessing driving licence. It denied the age, avocation and income of petitioner. Amount claimed is exorbitant. Among these grounds and reserving liberty to take all available defenses in the case it prays to dismiss the petition.
SCCH 17 5 MVC 3792/2016
4. Following issues arise for consideration:
ISSUES
1. Whether petitioner proves that on 23.10.15 at about 8.50 am., when he was riding motorcycle bearing No.KA-51-EA-3482 with pillion rider in between Bhuhalli and Doontoor Village, Hosakere, met with an accident and sustained injuries due to actionable negligence on the part of driver of tractor bearing No.KA-42/T-4660 as alleged?
2. Whether petitioner proves his age, occupation and income?
3. Whether R3 proves that there is violation of terms and conditions of the policy?
4. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
5. What order or award?
5. To prove the case, petitioner examined himself as Pw.1 and documents Ex.P1 to 22 were marked. Doctor was examined as Pw.2 and documents Ex.P23 & 24 were marked. On the other hand second respondent examined its manager as Rw.1 and document Ex.R1 was marked.
6. Heard arguments from both sides.
SCCH 17 6 MVC 3792/2016
7. Answers to the above issues are as follows:
Issue-1: Affirmative.
Issue-2: Partly Affirmative.
Issue-3: Negative.
Issue-4: Partly affirmative.
Issue-5: As per final order for the following;
R E A S O N S
8. Issue-1: The case of petitioner is that, he sustained injuries in a road traffic accident, which took place due to the negligence of driver of Tractor. Per contra the second respondent denied it.
9. It is significant to note that to claim compensation for the injuries sustained due to the actionable negligence of a tort feasor it is sine qua non to demonstrate the factum of negligence on the part of driver of offending vehicle. Initial burden is on the claimant.
SCCH 17 7 MVC 3792/2016
10. To discharge burden, petitioner filed affidavit evidence reiterating the petition averments. He specifically stated that, he was riding motorcycle and met with an accident occurred due to the negligence of driver of Tractor, which resulted in injuries to him.
11. He places reliance on documents viz., Ex.P1 is FIR registered by the police against driver of Tractor on the basis of report lodged by Manteswamy. Ex.P2 is complaint, wherein it is stated that the accident has taken place due to the negligence of driver of Tractor. Ex.P3 & 4 are seizure mahazar. Ex.P5 is Spot Panchanama, wherein topographical situation of place of accident is narrated. Ex.P7 is wound certificate. Ex.P8 is final report filed by the police against the driver of Tractor by opining that the accident has not taken place due any mechanical defect of SCCH 17 8 MVC 3792/2016 the vehicles but it has taken place due to the negligence of driver of tractor.
12. In cross-examination the Pw.1 stated that, he was riding motorcycle from the past 3-4 years. Accident took place around 8.50 AM and he was not wearing helmet. He denies that the place of accident is a straight road. It is tar road proceeded towards village and its width is 15 to 20 feet. There was a gap of ten feet between the motorcycle and the tractor. It is suggested that he only dashed the rear portion of Tractor, he denied it. He stated that the motorcycle came in contact with the right side front wheel of Tractor. He was riding motorcycle at the speed of 20 to 30 Kmph. He denies that he rode the motorcycle in high speed and caused accident dashing Tractor. It is suggested SCCH 17 9 MVC 3792/2016 that if he is alert he would have avoided the accident, he denied it.
13. The Manager of second respondent filed affidavit evidence by reproducing the averments stated in the written statement. He stated that the accident occurred due to the negligence of petitioner, who dashed the ongoing Tractor. There was no negligence on the part of driver of Tractor.
14. In cross-examination he stated that, he is deposing on the basis of documents and he has no personal knowledge of the accident. He admits that the police have charge sheeted the driver of insured vehicle. He denied that the driver of Tractor took the vehicle towards right abruptly without SCCH 17 10 MVC 3792/2016 giving any indication and due to his negligence accident has taken place.
15. It is worth to note that in the instant case the police documents produced by the petitioner are all undisputed, which show that the accident took place and the petitioner sustained injuries. In report (Ex.P2) it is stated that the driver of tractor abruptly stopped the vehicle in the middle of road without any indication, due to this the rear portion of tractor came in contact with the front portion of motorcycle. In claim petition also the same fact is pleaded. In affidavit evidence he re-narrated it. In cross- examination of Pw.1 it is suggested that he only dashed the rear portion of tractor and if he is alert he would have avoided the accident, he denied it. In cross-examination the Pw.1 stated that the distance between tractor and the SCCH 17 11 MVC 3792/2016 motorcycle is ten feet and he was riding the motorcycle at the speed of 20-30 Kmph. If really the motorcycle was ridden at the speed of 20-30 Kmph by keeping distance of ten feet the petitioner would have stopped the motorcycle by seeing abrupt stopping of tractor or at the least the impact would have of lesser effect. But that has not happened in the case. This shows that the petitioner also rode the motorcycle in speed without keeping safe distance and without wearing helmet and thereby contributed some negligence towards the occurrence of accident, which can be quantified at ten per cent. Hence, issue-1 is answered in partly affirmative.
16. Issue-2: Petitioner stated that he was aged 24 years at the time of accident and he was earning Rs.20,000/- per month by doing agriculture and milk vending. Ex.P22 is the SCCH 17 12 MVC 3792/2016 driving licence of the petitioner, wherein his date of birth is indicated as 10.7.1992. This undisputed and admissible document depict that the petitioner was aged 23 years at the time of accident.
To demonstrate his avocation and income the petitioner has not produced any document. In the absence of proof his income is considered as Rs.7,000/- per month on the basis of notional income as the accident is of the year 2015. Accordingly this issue is answered in partly affirmative.
17. Issue-3: Second respondent contended that there is violation of terms and conditions. This contention remained as it is for want of proof. In the absence of proof this issue is answered in negative.
SCCH 17 13 MVC 3792/2016
18. Issue-4: Petitioner stated that, he suffered with disability due to accidental injuries & incurred considerable medical and incidental expenses and prays to award compensation. In this backdrop let us determine just & reasonable compensation under the following heads; Pain and suffering: The wound certificate, discharge summaries, lab reports, OPD book and X-rays produced at Ex.P7, 9 to 13, 23 and 24 respectively show that the petitioner following injuries in the accident.
1) Fracture shaft of right femur middle one third.
2) Fracture distal one third right radius.
3) Fracture styloid process of right radius.
As per medical records said injuries are grievous in nature. Pw.1 admitted to KIMS Hospital on 9.2.16 and SCCH 17 14 MVC 3792/2016 discharged on 17.2.16. He underwent closed reduction internal fixation with IMIL nail for fracture of right femur. Open reduction internal fixation with LCDCP to fracture shaft of right radius. Open reduction and internal fixation with cannulated cancellous screws to fracture of styloid process of right radius. On second admission he took treatment as inpatient from 9.2.16 to 17.2.16. He underwent operation of PRP infileration to fracture shaft of right femur on 11.2.16. He admitted for third time on 31.3.16. He under went infilteration of PRP to right femur on 2.4.16. On fourth admission on 5.5.16 he under went PRP infilteration to right femur. He took treatment as inpatient for thirty three days. All these facts show that the Pw.1 sustained injuries in the accident. Considering the nature of injuries and line of treatment he underwent and the duration of SCCH 17 15 MVC 3792/2016 treatment a sum of Rs.60,000/- is awarded under this head.
Attendant charges, extra food and conveyance charges:
Discharge summaries (Ex.P9 to 12) of KIMS Hospital reveals that the Pw.1 took treatment as inpatient for 33 days. He also took follow up treatment. During said period he has to spend considerable amount on his conveyance, attendant charges and nutritious food. In this background a sum of Rs.30,000/- is awarded under this head. Medical expenses: Pw.1 stated that he has spent considerable amount towards medical expenses. To demonstrate said fact he relied on 25 medical bills (Ex.P14) of Rs.54,730/- and 6 prescriptions (Ex.P.16). He also relied on 53 medical bills (Ex.P.20) of Rs.61,911/- and 40 SCCH 17 16 MVC 3792/2016 prescriptions (Ex.P.21) Bill No.1 is inpatient bill issued by KIMS Hospital of Rs.29,046/-. Though Pw.1 was subjected to cross-examination but nothing is elicited which creates doubt regarding the genuineness of medical bills. Under these circumstances the petitioner is entitle for Rs.1,16,641/- towards medical expenses. Loss of income during laid up period: The income of petitioner is considered as Rs.7,000/- per month. He sustained fracture injuries stated supra. He took treatment as inpatient for thirty three days and after discharge he took follow up treatment. Considering the nature of injuries and the line of treatment it can be said that the petitioner requires at least three months for recovering from said injuries. During said period he lost the income. Hence he is entitle for Rs.21,000/- (Rs.7,000/-x3) under this head. SCCH 17 17 MVC 3792/2016 Loss of future income due to disability: Pw.1 sustained Fracture shaft of right femur middle one third and Fracture distal one third right radius and Fracture styloid process of right radius. As per medical records said injuries are grievous in nature. Pw.1 admitted to KIMS Hospital on 9.2.16 and discharged on 17.2.16. He under went closed reduction internal fixation with IMIL nail for fracture of right femur. Open reduction internal fixation with LCDCP to fracture shaft of right radius. Open reduction and internal fixation with cannulated cancellous screws to fracture of styloid process of right radius. On second admission he took treatment as inpatient from 9.2.16 to 17.2.16. He under went operation of PRP infileration to fracture shaft of right femur on 11.2.16. He admitted for third time on 31.3.16. He under went infilteration of PRP to right femur on 2.4.16. On SCCH 17 18 MVC 3792/2016 fourth admission on 5.5.16 he under went PRP infilteration to right femur. He took treatment as inpatient for thirty three days. Pw.1 stated that due to accidental injuries he is unable to do work. In cross-examination of Pw.1 it is suggested that he is not suffering from any disability, he denied it.
Dr.Ramachandra (Pw.2) stated that on clinical and radiological examination of Pw.1 he found that the Pw.1 is finding difficulty to stand and bear weight on right leg, to sit cross legged, to squat on the floor etc. He stated that there is loss of range of movements of right hip joint. Range of movements of right knee joint is normal. There is loss of power of the muscles acting around right hip joint. There is no loss of muscle power around right knee joint. He stated that Pw.1 suffers with disability of 31.8% of right SCCH 17 19 MVC 3792/2016 lower limb and 16% of whole body. He stated that there is loss of range of movements of right wrist joint and loss of power of the muscles acting right wrist joint. Pw.1 suffers with disability of 27.4% of right upper limb and 9% of whole body. Pw.1 suffers total whole body disability of 25%. Pw.2 stated that fracture shaft of right femur is union with implants in situ. Fractures shaft of right radius and styloid process of right radius is union with implants in situ. In cross-examination the Pw.2 stated that he has not treated the Pw.1. It is suggested that the disability assessed is on higher side and it is not in accordance with guidelines, he denied it. It is suggested that since fractures are united and there is no complication despite he assessed disability to help the petitioner, he denied it. He stated that the disability assessed is only physical disability not the SCCH 17 20 MVC 3792/2016 functional disability. He denies that after removal of implants there is possibility of reduction of disability. He denies that in future the disability comes down.
It is well known that the loss of earning capacity is to be determined basing upon the permanent physical impairment. The Pw.1 has not convincingly established his avocation. He stated that he is working as agriculturist and also doing milk vending business. If the avocation of Pw.1 is considered as agriculture and milk vending, he uses both lower and upper limbs to the maximum extent. Pw.2 is not the treated doctor. He assessed only physical disability and not the functional disability. No explanation is offered for non examination of treated doctor. Pw.2 stated that the fractures are united with implants in situ. Considering the nature of injuries, line of treatment and the evidence of SCCH 17 21 MVC 3792/2016 Medical officer it can be said that the disability assessed at 25% is on higher side and it can be quantified at 20%. Considering the avocation of Pw.1 it can be said that the disability affects his occupation to the extent of 15%. Pw.1 was aged 23 years at the time of accident as per medical records. As per Sarla Verma's case the appropriate multiplier applicable is 18. In this background the petitioner is entitle for Rs.2,26,800/- (Rs.7,000x12x18x15/100). Loss of future amenities and happiness: Petitioner suffered injuries stated supra. He was aged 23 years at the time of accident. The nature of injuries show that the petitioner finds difficulty in doing day-to-day activities as he might have suffered loss of pain, loss of amenities and comforts in life. Therefore, considering the age, nature of SCCH 17 22 MVC 3792/2016 injuries and percentage of disability Rs.20,000/- is awarded under this head.
Future medical expenses: Petitioner stated that he requires one more surgery for removal of implants. Pw.2 also stated about requirement of another surgery for removal of implants. But no estimation is produced to show future medical expenses. However, considering the fact that for removal of implants, the Pw.1 has to undergo one more surgery and he has to bear expenses, a sum of Rs.20,000/- is awarded under this head.
Petitioner is entitled for compensation under the following heads;
a) Towards pain and suffering Rs.60,000/-
SCCH 17 23 MVC 3792/2016
b) Towards attendant charges,
extra food and conveyance
expenses Rs.30,000/-
c) Towards medical expenses Rs.1,16,641/-
d) Loss of income during laid
up period Rs. 21,000/-
e) Loss of income due to
permanent disability Rs.2,26,800/-
f) Loss of future amenities and
happiness. Rs.20,000/-
g) Towards future medical expenses Rs.20,000/-
-------------
Total Rs.4,94,441/-
19. Liability: First respondent is the owner and second respondent is the insurer of the offending vehicle. They are liable to pay compensation. Second respondent being the SCCH 17 24 MVC 3792/2016 insurer has to indemnify the owner. Accordingly, this issue is answered.
20. Issue-5: By virtue of above findings, Tribunal proceeds to pass the following;
ORDER Petition is allowed in part with costs.
Petitioner is entitled for compensation of Rs.4,94,441/-(Rupees Four Lakhs Ninety Four Thousand Four Hundred Forty One Only) with interest @ 7.5 per cent per annum (excluding future medical expenses) from the date of petition till its realization. Out of said amount the second respondent is liable to pay 90% i.e., Rs.4,44,997/-.
Respondents are liable to pay compensation. SCCH 17 25 MVC 3792/2016 Second respondent being the insurer is liable to pay compensation to the petitioner and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized/Schedule bank of the choice of petitioner for a period of three years with liberty to draw accrued interest periodically and remaining 50 per cent shall be released in favour of petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open Court, this the 27th day of April, 2017) (A.SAMIULLA) XIX ADDL.SCJ & MACT, BANGALORE.
SCCH 17 26 MVC 3792/2016A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONER:
Pw.1: Sri.Srinivasa Pw.1: Dr.Ramachandra DOCUMENTS:
Ex.P1: FIR Ex.P2: Complaint Ex.P3: Seizure Mahazar Ex.P4: Seizure Mahazar Ex.P5: Spot Mahazar Ex.P.6: Police notice Ex.P.7: Wound certificate Ex.P.8: Charge sheet Ex.P.9to12:Discharge summary Ex.P.13: 4 lab reports
Ex.P.14: 25 medical bills of Rs.54,730/- Ex.P.15: 13 Advance receipts Ex.P.16: 6 prescriptions Ex.P.17: Aadhaar card Ex.P.18: Outpatient book Ex.P.19: 2 Outpatient cards Ex.P.20 53 medical bills of Rs.61,911/-
Ex.P.21 40 prescriptions
Ex.P.22 Driving licence
Ex.P.23 OPD book
Ex.P.24 2 Recent X-rays.
SCCH 17 27 MVC 3792/2016
FOR RESPONDENT:
R.w.1: Sri. Ananda.M.
DOCUMENTS:
Ex.R1: Insurance policy.
(A.SAMIULLA)
XIX ADDL.SCJ & MACT,
BANGALORE.