Bangalore District Court
Sri. Suresh Kumar vs The New India Assurance on 19 March, 2018
IN THE COURT OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-24).
Present: Smt. ZAIBUNNISA.
B.Com.LL.B.
XXII A.S.C.J. & XX A.C.M.M.
& Member MACT, Bengaluru.
Dated: This the 19th day of March 2018
M.V.C.No.9193/2008
Petitioners : - Sri. Suresh Kumar,
S/o Muniyappa,
Aged about 45 years,
Since Dead by Lrs.
1 Smt. Bhagyamma,
Aged about 47 years,
W/o late Suresh Kumar.
2. Sri. S. Manjunath,
Aged about 27 years,
S/o late Suresh Kumar.
3. Smt. Nirmala,
Aged about 24 years,
D/o late Suresh Kumra.
No.1 to 3 residing at No.131,
4th Cross, 38th Main,
Rose Garden,
Opp. Sindhoora Choultry,
J.P. Nagar, 6th Phase,
Bangalore-560 078.
(Reptd By : Sri.G.V. Shashi Kumar,
Advocate, Bengaluru).
2 SCCH-24
MVC No.9193/2008
- Versus -
Respondents: 1. The New India Assurance
Company Ltd.,
Opp. V.N. Road Vanivilas Hospital,
K.R. Road, Bangalore.
Represented by its Manager.
2. M/s Fabmal(India) Pvt.Ltd.,
No.6/3, Fabmal House,
7th Cross, 10th Main,
2nd Stage, Indiranagar,
Bangalore.
Rep.by: Ramesh Babu,
Also at:
No.44, H.B. Samaja Road,
Basavanagudi,
Bangalore.
3. Sri. N.N. Sukumar,
Major,
R/at No.615/B, 10th C Main,
End Road, Jayanagar 4th Block,
Bangalore-560 011.
(R-1 By : Sri. G.S. Marulaiah,
Advocate, Bengaluru.
R-2 By : Ex-Parte,
R-3 By : Smt.B.S. Saraswathi,
Advocate, Bengaluru).
(ZAIBUNNISA)
XXII A.S.C.J. & XX A.C.M.M.
MEMBER, M.A.C.T.
BENGALURU.
3 SCCH-24
MVC No.9193/2008
JUDGEMENT
This claim petition was originally filed by the injured petitioner Sri. Suresh Kumar U/s 166 of the M.V. Act claiming the compensation of Rs.30 lakhs on account of the injuries sustained by him in the Motor Vehicles Accident.
2. The case of the petitioner was that, on 08.08.2008 at about 6.30 p.m., when the petitioner was riding his bicycle on 4th main road, Jayanagar from northern side to southern side near 22nd cross junction, at that time a Car bearing Reg.No.KA-03-Z-4643 driven by its driver in a rash and negligent manner with high speed, without observing the traffic norms, endangering to human life and dashed against the petitioner's bicycle from behind. Due to impact petitioner fell down and sustained grievous injuries on the left leg, left hand, head and other parts of the body. Immediately after the accident the petitioner was shifted to Garden City 4 SCCH-24 MVC No.9193/2008 Hospital, later to Rajashekar Hospital and then he was shifted to Apollo Hospital on 09.08.2008 at 12.30 p.m. and subsequently shifted to Sri Krishna Shevashrama Hospital on 28.08.2008. Petitioner had sustained fracture of left humerus, mid 1/3rd with multiple friction abrasions left, degloved injury left knee with neurovascular injury, multiple facial wounds with deep CLW right ear and injuries to other parts of the body. He was operated on his left leg and amputated above knee on 12.08.2008, left hand operated by inserting rods at Sri. Krishna Shevashrama Hospital and continued the treatment.
3. Respondent No.1 contested the petition and denied the petition averments in toto, whereas respondent No.2 was placed Ex-parte. Petitioner had examined himself and a doctor as P.W.1 and P.W.2 respectively and got marked Ex.P.1 to 16. On the other 5 SCCH-24 MVC No.9193/2008 hand 1st respondent company has examined its Legal Assistant as R.W.1 and it has also got marked Ex.R.1 to Ex.R.10 when the matter was before Learned VI Additional Judge, Court of Small Causes and MACT, Bengaluru. The Tribunal after hearing both parties, allowed the petition in part with cost on 23.02.2010 and compensation of Rs.4,37,200/- was awarded with interest.
4. Against the said judgment, petitioner preferred an appeal before the Hon'ble High Court of Karnataka for enhancement of compensation in M.F.A.No.5240/2010 contending that, quantum of compensation awarded by the Tribunal is inadequate and it requires to be enhanced. The respondent company also preferred an appeal in M.F.A.10190/2010 challenging the above award for Rs.4,37,200/- and fixation of 70% negligence on it is not sustained sought for modification. During 6 SCCH-24 MVC No.9193/2008 pendency of the appeal, the claimant Suresh Kumar died and his Legal Representatives are permitted to come on record and upon submission of the learned counsel appearing for both the parties, the Hon'ble High Court is pleased to allow the appeals of the claimant and the insurer on 09.01.2015 by setting aside the impugned judgment and award dated: 23.02.2010 passed in this petition and matter is remitted back to trial court to reconsider the same afresh and to pass appropriate order in accordance with law after affording reasonable opportunity to the L.Rs. of the claimant and the insurer personally or through their counsel and to dispose of the same. Consequently, matter is assigned to this Tribunal to proceed further and to dispose. It is appears from the Orders passed by the Hon'ble High Court of Karnataka in the said appeals that the legal representatives of the deceased claimant were permitted to file necessary application before the Tribunal to implead the owner of 7 SCCH-24 MVC No.9193/2008 the vehicle and directed the Tribunal to receive the same and to pass appropriate orders in accordance with law.
5. After remand the counsel for legal representative of petitioner filed different I.As. to incorporate the subsequent events regarding the death of original petitioner Suresh Kumar by way of amendment under Order VI Rule 17 of C.P.C., to amend the cause title of the petition, to implead insured of the offending vehicle bearing Reg.No.KA-03-Z-4643 as respondent No.3 since they have noticed in the appeal that owner and insured of the said vehicle are different persons; sought permission to lead further evidence by filing additional affidavit and to produce the documents in support of their contention. Other than the said I.As., the applicants have also filed application under Order XXII Rule 3 of C.P.C. seeking permission to come on record as legal representatives of deceased petitioner Suresh 8 SCCH-24 MVC No.9193/2008 Kumar. In the meanwhile records received from the Hon'ble High Court and in pursuance of the orders passed on interim application amendment carried out in the petition, the applicants/Legal Heirs of deceased petitioner Suresh Kumar have been impleaded as petitioner No.1 to petitioner No.3, subsequently impleaded respondent No.3 appeared and filed his statement of objection to the petition.
6. The petitioners No.1 to 3 have submitted in the amended petition at column No.22 (f) that, " Sri. Suresh Kumar was under continuous treatment due to amputation of his left leg and was admitted to Fosa Humanitarian Hospital, C/o RVM Foundation Hospital, Bannerghatta Village, Bangalore on 29.04.2014 and he died in the said hospital on 17.07.2014, due to injuries sustained by him in the accident and there is direct nexus between the accident and death". Hence, the 9 SCCH-24 MVC No.9193/2008 petitioners No.1 to 3 are entitled for compensation due to the death of Suresh Kumar.
7. The respondent No.1 in his additional statement of objection submits that, the Suresh Kumar was not under continuous treatment due to amputation of his left leg and it is false to state that, he was admitted to Fosa Humanitarian Hospital on 29.04.2014 and died in the said hospital on 17.07.2014 due to road traffic accidental injuries. That there is no nexus between the accident and death and the documents produced by the petitioners clearly shows that, the death occurred due to the old age ailments. Hence, the petitioners are not entitled for the compensation due to the death of Suresh Kumar and prays to dismiss the petition.
8. The 3rd respondent has only admitted that the offending car as belongs to respondent No.2 and insured with respondent No.1, but has denied other allegations 10 SCCH-24 MVC No.9193/2008 made in the claim petition. The 3rd respondent submitted that, the R.C. of the car bearing Reg.No.KA-03-Z-4643 is in the name of Fab Mall Private Limited, but not as stated in the cause title Fab Mall India Private Limited, represented by Sri. Ramesh Babu and therefore the petition is bad for joinder of unnecessary party. It is further submitted that, he was using the said car only for a limited period and has sold the car in favour of one Sri. N. Ramesh Babu on 04.06.2008 and as such he is not at all related with the said car in any manner as on the date of alleged accident. Accordingly, prays to dismiss the petition with costs.
9. Primarily the following issues were framed:-
ISSUES
1. Whether petitioner proves that he sustained grievous injuries on 08.08.2009 at about 6.30 p.m., on Jayanagar 4th Main, 22nd Cross Junction, Jayanagar, on account of rash and negligent driving of the 11 SCCH-24 MVC No.9193/2008 Car bearing Reg.No.KA-3-Z-4643 by its driver?
2. Whether the petitioner is entitled to claim compensation? If so, from whom?
3. What order or Award?
10. After remand and on the basis of additional pleadings, this Tribunal recasted the Issue No.1 and 2 and also framed Additional Issue No.1 and 2 as follows.
Recasted Issues:
1. Whether petitioners No.1 to 3 prove that the petitioner Suresh Kumar sustained grievous injuries on 08.08.2009 at about 6.30 p.m., on Jayanagar 4th Main, 22nd Cross Junction, Jayanagar, on account of rash and negligent driving of the Car bearing Reg.No.KA-3-Z-4643 by its driver?2. Whether the petitioners No.1 to 3
are entitled to claim compensation?
If so, from whom?
Additional Issues:
1. Whether petitioners No.1 to 3
prove that, petitioner Suresh Kumar succumbed to the injuries 12 SCCH-24 MVC No.9193/2008 caused in the alleged accident hence, there is a nexus between the accident and death of said petitioner Suresh Kumar?
2. Whether respondent No.3 proves that, he is not a necessary party to the proceedings ?
11. In the first instance deceased petitioner Suresh Kumar got examined as P.W.1 and one witness was examined as P.W.2 and got marked documents at Ex.P.1 to Ex.P.16. After remand petitioner No.2 is examined as P.W.3 and got marked Ex.P.17 to Ex.P.22. Thereafter, the petitioners closed their side evidence.
12. In order to rebut the evidence so placed on record by the petitioners, the 1st respondent in the first instance examined one witness as R.W.1 and got marked Ex.R.1 to Ex.R.10. After remand respondent No.1 examined another witness as R.W.2 and got marked Ex.R.11. General Power of Attorney Holder of the respondent No.3 is examined as R.W.3 and got marked 13 SCCH-24 MVC No.9193/2008 Ex.R.12 and Ex.R.13. Thereafter, respondents' side evidence closed.
13. Heard the arguments. Perused the materials placed on record.
14. My findings on the above issues are as under:
3 Recasted Issue No.1 -
In the Affirmative.
&
Additional
Issue No.1
Additional - In the Negative.
Issue No.2
Recasted - In the Affirmative.
Issue No.2
Issue No.3 - As per final order.
for the following :
REASONS
RECASTED ISSUE NO.1 & ADDITIONAL ISSUE NO.1:-
15. It is stated in the petition that, on 08.08.2008 at about 6.30 p.m., when the deceased petitioner Suresh Kumar was riding his bicycle on 4th main road, 14 SCCH-24 MVC No.9193/2008 Jayanagar from northern side to southern side near 22nd cross junction, at that time a Car bearing Reg.No.KA-03- Z-4643 driven by its driver in a rash and negligent manner with high speed, without observing the traffic norms and endangering to human life and dashed against the deceased petitioner's bicycle from back side. Due to impact deceased Suresh Kumar fell down and sustained grievous injuries on the left leg, left hand, head and other parts of the body. Immediately after the accident, deceased Suresh Kumar was shifted to Garden City Hospital, later to Rajashekar Hospital and then he was shifted to Apollo Hospital on 09.08.2008 at 12.30 p.m. and subsequently shifted to Sri Krishna Shevashrama Hospital on 28.08.2008. Deceased Suresh Kumar had sustained fracture left humerus, mid 1/3rd with multiple friction abrasions left, degloved injury left knee with neurovascular injury, multiple facial wounds with deep CLW right ear and injuries to other parts of the 15 SCCH-24 MVC No.9193/2008 body. He was operated on his left leg and amputated above knee on 12.08.2008, left hand operated by inserting rods at Sri. Krishna Shevahrama Hospital and continued the treatment due to amputation of his left leg and was admitted to Fosa Humanitarian Hospital, C/o RVM Foundation Hospital, Bannerghatta Village, Bangalore on 29.04.2014 and he died in the said hospital on 17.07.2014. The cause of death of deceased Suresh Kumar was due to injuries sustained by him in the accident and there is direct nexus between the accident and death. According to the petitioners No.1 to 3 the said accident occurred due to reckless driving of the driver of the Car bearing Reg.No.KA-03-Z-4643 and in this regard Jayanagar Police have registered a case in Crime No.130/2008 for the offences punishable under Sec.279, 338 of IPC & Section 185 of M.V. Act.
16 SCCH-24 MVC No.9193/2008
16. In order to prove the actionable negligence, the then petitioner Suresh Kumar was examined as P.W.1, who had filed affidavit in lieu of his examination-in-chief and also examined a doctor as P.W.2 during his lifetime. After remand, the petitioner No.2 has entered into the witness box and got examined himself as P.W.3. P.W.1 had reiterated the averments and allegations made in the claim petition at the time of his evidence and now his son, petitioner No.2, has filed his affidavit, wherein he deposed in consonance with petition averments that, the injured "Suresh Kumar was under continuous treatment due to the amputation of his left leg and was admitted to Fosa Humanitarian Hospital, Bannerghatta Village, Bangalore, on 29.04.2014 and died in the hospital on 17.7.2014. It is further submitted that cause of death of Suresh Kumar was due to injuries sustained by him in the road traffic accident and there is direct nexus between the accident and death. Hence, the petitioners 17 SCCH-24 MVC No.9193/2008 are entitled for compensation due to death of Suresh Kumar". In support of the petition averments P.W.1 had produced and got marked documents at Ex.P.1 to Ex.P.4. Out of which Ex.P.1 is copy of the First Information Report with Complaint, Ex.P.2 is copy of the Spot Mahazar, Ex.P.3 is copy of the Sketch and Ex.P.4 is copy of the Charge Sheet.
17. During the course of cross examination of P.W.1, he had denied that, he was riding bicycle with high speed and suddenly slowed down in the signal hence, the accident took place. It was also denied that, his left leg amputated due to some other ailment but not due to the injuries sustained in the accident. After the death of P.W.1, the petitioners in support of their contention that Suresh Kumar died due to injuries sustained by him in the road traffic accident and that there is direct nexus between the accident and death, 18 SCCH-24 MVC No.9193/2008 they have produced the Death Certificate of Suresh Kumar at Ex.P.17 and Medical Certificate at Ex.P.22. During the course of cross-examination by the learned counsel for 1st respondent, P.W.3 denied the suggestion that his father was not under continuous treatment since 2008 till his death on 29.04.2014 and there is no nexus between the accident and the death of his father, therefore only they have not got conducted the postmortem nor given any complaint to police in respect of the death of his father. It is also suggested that, the petitioners have concocted the medical certificate of cause of death produced at Ex.P.22. In the further cross- examination of this P.W.3 by the learned counsel for the 3rd respondent, it is suggested that, as per Ex.P.5 discharge summary, there was no pre or post operative complications and stay of Suresh Kumar in SICU was uneventful. Further suggested that, the doctor Shivarajaiah, who is examined during the life time of his 19 SCCH-24 MVC No.9193/2008 father as P.W.2 in this case, has deposed that his father had sustained disability but not deposed that his life was in danger, therefore there is no nexus between the accidental injuries and his death. The above said suggestions are out rightly denied by P.W.3 as false and he also denied the suggestion that, it is no where mentioned in Ex.P.22 as the death of his father is caused due to the accidental injuries.
18. In this case respondent No.1 has taken specific defence that, at the time of accident driver of the car was under the influence of alcohol and drove the vehicle in rash and negligent manner and caused the accident. In order to prove the above said defence, they have examined the company's Legal Assistant as R.W.1 and after remand examined another Assistant of the company as R.W.2. The company, in all produced 11 documents at Ex.R.1 to Ex.R.11. Ex.R.1 is the copy of Insurance 20 SCCH-24 MVC No.9193/2008 Policy, Ex.R.2 is copy of the Charge Sheet, Ex.R.3 is copy of letter issued by the 1st respondent to the Owner of the Offending vehicle to furnish the vehicle documents, Ex.R.4 is Order Sheet in C.C.497/2009, Ex.R.5 is the copy of Substance of Accusation prepared in the said criminal case, Ex.R.6, Ex.R.7 and Ex.R.9 are the copies of Statement of witnesses in Crime No.130/2008, Ex.R.8 is the Alco meter Receipt Ex.R.10 is the copy of Charge Sheet and Ex.R.11 is Authorization Letter of R.W.2. Except denying the manner of accident and cause of death of petitioner Suresh Kumar, respondents have not produced any other documents except the above said Ex.R.1 to Ex.R.11.
19. Now on the basis of the above pleadings and evidence it is to know, as to how and on whose fault alleged accident occurred, but before going to conclude the opinion with regard to alleged negligence, it is worth 21 SCCH-24 MVC No.9193/2008 to mention at the cost of repetition that, during the lifetime of deceased Suresh Kumar this petition was disposed and was awarded a total compensation of Rs.4,37,200/- against the respondent No.1 and 2 and 30% contributory negligence was fixed on the part of the driver of the car on the ground that the said driver was under the influence of Alcohol while driving the offending vehicle at the time of accident. Therefore, the respondent No.2 being the owner, was directed to pay the compensation to the extent of 30% i.e.,Rs.1,31,160/- and respondent No.1 being the insurer was ordered to pay and deposit 70% i.e., Rs.3,06,040/- of the compensation in favour of the deceased petitioner Suresh Kumar. The said quantum of compensation was challenged before the Hon'ble High Court by both the parties in different appeals i.e., by the petitioner Suresh Kumar in M.F.A. No.5240/2010 for enhancement of the compensation and by respondent 22 SCCH-24 MVC No.9193/2008 No.1 in M.F.A.No.10190/2010, challenging 70% of negligence that fixed against it and sought for modification. During the pendency of said appeals, petitioner Suresh Kumar died on 17.07.2014 and his Legal Representatives were permitted to come on record. Therefore and thereafter, the Hon'ble High Court of Karnataka, on the submission of learned counsel appearing for both parties, pleased to set-aside the judgment and award dated: 23.02.2010 passed by the Tribunal and remanded back to the Trial Court on 09.01.2015 with a direction to reconsider the same afresh and to pass appropriate orders after affording reasonable opportunity to the Legal Representatives of the claimant and the insurer and to dispose of the matter in accordance with law. After remand, necessary amendments carried out in respect of the death of claimant and appearance of his legal representatives on record of this case. Respondent No.1 and 3 have filed 23 SCCH-24 MVC No.9193/2008 their additional statement of objections, on which this Tribunal has Re-casted the Issue No.1 and 2 and also framed additional Issue No.1 and 2. As mentioned above, son of the deceased claimant fully examined before this Tribunal on behalf of the petitioners as P.W.3, whereas R.W.1 is further cross-examined by the 3rd respondent in respect of the alleged ownership of the offending vehicle. During the course of cross- examination for petitioner and 3rd respondent, it is suggested and admitted that, insurance policy in respect of the offending Car was issued in the name of 2nd respondent and R.C. was standing in the name of one Sukumar i.e respondent No.3, but not in the name of 2nd respondent. It is admitted by R.W.1 that, it is mentioned in Ex.P.1 as the driver of the offending Car by name Shashank had taken the injured petitioner to the hospital for treatment; therefore it is false to state that, the driver of the offending Car was in the state of 24 SCCH-24 MVC No.9193/2008 intoxication at the time of accident. Thereafter respondent No.1 also examined its Assistant as R.W.2, who deposed in his affidavit evidence that, the police had conducted the investigation and submitted the charge sheet before the jurisdictional Magistrate for the offences punishable under Section 279, 338 of I.P.C. r/w Section 185 of M.V. Act against the driver of the offending vehicle, wherein the accused driver pleaded guilty in C.C.No.497/2009 that at the time of accident, he had driven the offending Car rashly and negligently in drunken state. It is further deposed that, petitioner took treatment for the accidental injuries on 08.08.2008 and discharged from the hospital but no documents are there to show that, he was under continuous treatment for the accidental injuries. He further deposed that the Claimant was admitted to Fosa Humanitarian hospital on 29.04.2014 for his other ailments and died in the said hospital on 17.07.2014 i.e., after 6 years of the alleged 25 SCCH-24 MVC No.9193/2008 accident, therefore it appears that, the death was caused due to other reasons and the petitioners have not filed complaint before the jurisdictional police and no second F.I.R. had been registered to conduct investigation with respect to death of Suresh Kumar for the offences punishable under Section 304(A) of I.P.C. against the driver of the car. Hence, there is no nexus between the injuries and death. It is alleged by 1st respondent that, the medical certificate of cause of death, issued by the Fosa Humanitarian Hospital is not having the full details; hence appears as same is created for claiming the compensation. Whereas during the course of cross- examination by the learned counsel for the petitioner, it is suggested that, the amputation of left leg above knee to the deceased petitioner was done due to the accidental injuries and he was under continuous treatment since the date of the accident. It is further suggested that, the injuries sustained by the deceased later turned to 26 SCCH-24 MVC No.9193/2008 gangrene and because of the said gangrene he died, but not due to any other reasons. R.W.2 denied all the above said suggestions. The learned counsel for 3rd respondent also cross-examined this R.W.2. During his cross- examination, R.W.2 deposed as he has no information about the driver of the Car nor he knows what documents have been produced by R.W.1 while examining on behalf of his company. He also deposed as he does not know whether it is mentioned in Ex.P.1- complaint as the driver of the car himself taken the injured to the hospital after accident nor he knows at what time the alcohol test has been conducted on the driver of the car after the accident. But he denied that his company has made false allegations against the driver of the car as if he was in drunken state at the time of accident.
27 SCCH-24 MVC No.9193/2008
20. On examining and re-examining R.W.1 and R.W.2, even after remand, nothing worthwhile materials have been elicited to show that no negligence was there on the part of the driver of the Car bearing Reg.No.KA- 03-Z-4643 in occurrence of the accident but it is occurred due to self negligence of deceased petitioner Suresh Kumar as alleged by the respondents. However, the documents produced by the petitioners, i.e., the First Information Report with Complaint at Ex.P.1 discloses that a criminal case has been registered against the driver of the Car bearing Reg.No.KA-03-Z-4643 for the offences punishable under section 279, 338 of the Indian Penal Code and Section 185 of Motor Vehicles Act. After investigation, the police have submitted the charge sheet against the driver of the car for the offences punishable under Section 279, 338 of Indian Penal Code r/w Section 185 of Motor Vehicles Act.
28 SCCH-24 MVC No.9193/2008
21. In order to decide the factum of alleged negligence, I have perused oral as well as documentary evidence produced for both the parties. It is undisputed that, as on the date of accident the Car bearing Reg.No.KA-03-Z-4643 was driven by a driver by name Shashank. It appears from the police records that the F.I.R. was filed on the basis of the first information given by H.C. 3309 of Jayanagara Traffic Police Station and police have charge sheeted said driver for the offences punishable under Section 279, 338 of Indian Penal Code and Section 185 of Motor Vehicles Act. In accordance with the said charge sheet, criminal case has been registered against the driver.
22. On the basis of the said documents, it is submitted for 1st respondent that, during the investigation it is proved that, the accused was in the state of alcohol at the time of accident and he also 29 SCCH-24 MVC No.9193/2008 pleaded guilty before the Metropolitan Magistrate Court in respect of the offences punishable under Section 279, 338 of I.P.C and Section 185 of I.M.V Act, On going through the said documents it is appeared that in the said accusation no answer of the accused is recorded and the signature said to have been put by accused on the substance of accusation and Alcohol meter report are differs to one another. Furthermore, it is also not shown before this Tribunal whether said accused is tried for the above said offences and what was the result of the said case. The respondent No.1 has not produced any materials to show whether the accused is held guilty for the said offence or not. Under such circumstances only looking to the charge sheet and statement of witnesses, it cannot be concluded that, the driver of the car was in the state of intoxication and because of that reason only the accident occurred. But on overall perusal of records, it is cleared that, the accident occurred due to the rash and 30 SCCH-24 MVC No.9193/2008 negligent driving on the part of the driver of the car and therefore, deceased petitioner Suresh Kumar sustained injuries on 08.08.2008.
23. Even, through the evidence of R.W.3, by respondent No.3 nothing has been brought out to show that the accident occurred due to self negligence of the deceased petitioner but not due to the rash and negligent driving of the Car bearing Reg.No.KA-03-Z-4643.
24. On going through the evidence of P.W.1 and P.W.3, coupled with the contents of the police documents at Ex.P.1 to Ex.P.4, it is clearly appeared and established that, the accident was occurred solely due to the rash and negligent driving of the Car bearing Reg.No.KA-03-Z- 4643 by its driver and the deceased Suresh Kumar sustained injuries. In the Medical Certificate of Cause of Death produced at Ex.P.22, his cause of death is mentioned as 'due to (a) Acute myocardial infection, (b) 31 SCCH-24 MVC No.9193/2008 Uncontrolled DM, old A/K Amputation. This record clearly discloses that the injured Suresh Kumar died due to accidental injuries. Moreover no respondents have ever produced any oral or documentary evidence to show that, Suresh Kumar died due to the other ailments but not due to accidental injuries as alleged by them in their defence. Therefore I came to conclusion that his death is due to the aggravated injuries sustained in the alleged accident only and there is nexus between the death and accidental injuries. Accordingly, I have answered Recasted Issue No.1 as well as Additional Issue No.1 in the Affirmative.
Additional Issue No.2 :
25. In the beginning this respondent No.3 was not made as a party, whereas the petitioners got impleaded this 3rd respondent on the ground that it is noticed during the pendency of appeals before Hon'ble High
32 SCCH-24 MVC No.9193/2008 Court that this respondent No.3 is the insured of the offending vehicle bearing Reg.No.KA-03-Z-4643 and that he is the necessary party to the proceedings since owner and insured of the said vehicle are different persons. Whereas this respondent No.3 taken a specific defence that, the car bearing Reg.No.KA-03-Z-4643 is in the name of Fab Mall Private Limited but not as 'Fab Mall India Private Limited - represented by Sri. Ramesh Babu' as stated in the cause title, therefore the petition is bad for joinder of unnecessary party. It is further submitted that, he has used the car only for a limited period and has sold the car in favour of one Sri. N. Ramesh Babu on 04.06.2008 and as such he is not at all related with the said car in any manner, what so ever on 08.08.2008, the date of alleged accident. In order to substantiate the said aspects, 3rd respondent has examined his Power of Attorney holder as R.W.3. R.W.3 in his affidavit evidence has reiterated the contents of Statement of Objection filed 33 SCCH-24 MVC No.9193/2008 by respondent No.3. During the course of examination of RW.1 to RW.3 it is brought out that as on the date of accident the insurance policy was issued and standing in the name of this respondent No.3, but Delivery Note produced by RW.3 at Ex.R.14 discloses that, 3rd respondent has sold the vehicle in favour of one Ramesh Babu, who is representing respondent No.2 in this petition. Whereas Ex.R.1 clearly discloses that, the insurance policy in respect of the offending car is issued in the name of respondent No.3. Looking to the materials, it can safely be stated that respondent No.3 also a necessary party to the proceedings as a insured of the offending car. Hence Additional issue No.2 answered in the Negative.
RECASTED ISSUE NO.2:-
26. The case of the petitioners is that, the 1st petitioner is the wife; petitioner No.2 and petitioner No.3
34 SCCH-24 MVC No.9193/2008 are the son and daughter of deceased Suresh Kumar and they are entitled to get compensation due to the death of Suresh Kumar, whereas respondents defends that, since the death of Suresh Kumar, was not due to the accidental injuries and there is no nexus between the accident and death.
27. In order to substantiate their contention, P.W.3, the 2nd petitioner has entered into witness box and by filing affidavit has deposed about their relationship with the deceased. In order to substantiate the said aspects, P.W.3 has produced Ex.P.18 i.e., copy of the Ration Card, Ex.P.19 i.e., the copy of Election Identity Card of the 1st petitioner, Ex.P.20 i.e., copy of the Aadhaar Card of the 2nd petitioner, Ex.P.21 i.e., copy of the Aadhaar card of the 3rd petitioner. Ex.P.18 standing in the name of 1st petitioner and it discloses that deceased Suresh kumar was the husband of 1st petitioner and petitioner No.2 and 35 SCCH-24 MVC No.9193/2008 petitioner No.3 are the son and daughter. Ex.P.19 and Ex.P.20 also proves the relationship of the 1st and 2nd petitioners with the deceased Suresh Kumar as contended in the petition. Under such circumstances, there is no need to discuss much on the relationship of petitioners with the deceased since the petitioners have satisfactorily proved that, they are the wife, son and daughter respectively, of the deceased.
28. Though the petitioner No.1 to 3 proved that, they are the legal representatives of the deceased Suresh Kumar, but it is necessary to appreciate here whether these petitioners were depending upon the income of Suresh Kumar during his life time and also to appreciate whether they are entitled for compensation for the loss of dependency or not ? At this stage, it is relevant to go through the authorities relied on by the learned counsel for the petitioners, respondent No.1 along with the case 36 SCCH-24 MVC No.9193/2008 sheet of deceased Suresh Kumar pertaining to his treatment at Fosa Humanitarian Hospital, where he was admitted at the time of his death.
29. To show their entitlement, the petitioners have relied on the decisions reported in:-
1. ILR 2002 KAR 1864 between Uttam Kumar Vs. Madhav and Another, wherein it is held that:
"Motor Vehicles Act, 1988 (Central Act No.59 of 1988) - Section 166 and Indian Succession Act, 1925 (Central Act No.39 of 1925) - Section 306 - Motor Vehicles Act, 1939 (Central Act No.4 of 1939) - Section 110A - Division Bench of the Karnataka High Court being of the view that the Full Bench decision in Kannamma Vs. Deputy Generl manager ILR 1990 Karnataka 4300 may require reconsideration in view of the Amended Provisions of the Motor Vehicles Act and law laid down by the Supreme Court in some later decisions, referred the question to the Full Bench.
Whether the provisions of the Motor Vehicles Act 1988 Supersede the provisions of Section 306 of the Indian 37 SCCH-24 MVC No.9193/2008 Succession Act?
HELD In case of death resulting from the Accident, the legal representatives of the deceased can file claim petition in view of Section 306 of the Indian Succession Act the cause of action survives to the Legal Representative of the deceased, whose death is the result of the personal injuries sustained in the accident. There is no inconsistency between Section 166 of the Motor Vehicles Act 1988 and Section 306 of the Indian Succession Act.
Claim petition filed by the person who has sustained injuries in the Motor Accident cannot be prosecuted by his Legal Representatives, on such person's death occurring not as a result of consequent of bodily injuries sustained in a Motor Accident".
2. 2006 (2) AIR Kar. R 167 between North West Karnataka Road Transport Corporation Vs. Dundappa Ramappa Rakshi & Ors.
Wherein it is held that:
Motor Vehicles Act (59 of 1988), S. 166
- Compensation - Injured died after 2½ years from date of accident - No evidence to show that petitioner 38 SCCH-24 MVC No.9193/2008 suffered chronic injuries; cause of death is not forthcoming - Death cannot be said to be on account of injuries sustained in accident only on basis of oral evidence of Homeopathic doctor - Legal representatives are entitled to claim compensation only to extent of loss of estate - Medical expenses and loss of income during treatment would constitute loss of estate".
3. 1989 CRI. L.J. 241, between Roop Singh, Petitioner Vs. State of Rajasthan, Respondent, wherein it is held that:
"Motor Vehicles Act (4 of 1939), S. 117 (as on 1.3.77) - Driving in a drunken state - What makes the driver guilty in the presence of alcohol in his blood - Blood test not carried out - Smell of alcohol from mouth and dilation of pupils are not enough symptoms to hold driver guilty".
30. On the other hand, the respondent No.1 has relied on the following decisions:-
1. M.F.A.4031/2007 between Divisional Manager, United India Insurance Co.Ltd., Vs. Mallappa and Others.
2. ILR 2002 Kar 660 between Baburao Sataba Manabutakar, deceased by his 39 SCCH-24 MVC No.9193/2008 LRs. Vs. Doreswamy and Others, wherein it is held that:
"Motor Vehicles Act, 1988 (Central Act No.59 of 1988) - Section 166 and 168 - Person injured in road accident dying during the pendency of his claim petition before claims Tribunal, on account of reasons other than the injuries sustained in the accident - rights of the legal representatives to continue the proceedings - In view of the law laid down by the Division Bench of the Karnataka High Court in Muniyappa Vs. H.L. Narasimhaiah 1984 (1) Karnataka Law Journal 41 and Full Bench decision in Kannamma Vs. Deputy General Manager ILR 1990 Karnataka 4300, Legal Reprsentatives cannot prosecute the claim petition presented by the injured and as such they cannot even recover medical Expenses incurred for the treatment of injuries - Suggestion made by the Division Bench of the Karnataka High Court in Muniyappa's case to the effect".
In the light of the above facts and circumstances and principles laid down in the decisions relied on by the parties, in support of their respective contentions, I proceed further to look into the other materials produced by the parties.
40 SCCH-24 MVC No.9193/2008
31. Here it is worth to note in this case that, the petitioners though submitted that, Suresh Kumar died due to the accidental injuries while taking treatment in a Fosa Humanitarian hospital, but they have not produced any documents with respect to his treatment at Fosa Humanitarian hospital till his death, but produced only the cause of death certificate at Ex.P.22. Whereas, upon insisting for production of Fosa Humanitarian hospital document by this Tribunal, the learned counsel for the petitioners during the course of further arguments, produced the case sheet of deceased Suresh Kumar pertaining to his treatment at Fosa Humanitarian hospital.
32. On close scrutiny of the said record of Fosa Humanitarian Hospital dated.09.04.2014, it discloses at the column of present illness that, "this 60 years old male patient a known diabetic was brought to our hospital by Mr. Jagadish, RVM Ambulance driver. Referred by Dr.N.M. Srinivas, surgeon and Pushpa MSW, 41 SCCH-24 MVC No.9193/2008 patient was admitted in Victoria Hospital for management of right gangrened foot over cellulites. The patients attenders abandoned the patient in VH (Victoria Hospital), and did not come back to look after him. Hence, brought here for further treatment and care". It is also mentioned that he underwent A/k amputation of Left LL - due to infection following trauma, 6 years back"
- known diabetic on referred over"
33. Thus, it is very clear that while taking treatment by Suresh Kumar at Fosa Humanitarian Hospital none of his family members have taken care of him. Due to the accidental injuries his left leg was amputated and naturally it was not possible to him to do any kind of work and even to move for his day-to-day activities. Under such circumstances he would have required the assistance and support of his family members to move 42 SCCH-24 MVC No.9193/2008 about which is not provided by the petitioners during his last days.
34. On perusal of Discharge summary at page No.2 it is clearly mentioned that "wound inspection and above knee amputation left on 12.08.2008." In the bottom it is also mentioned that, "due to financial problems patient attenders wanted treatment elsewhere and he was discharged on request. He needs 2 more surgical procedures -ORIF of fracture humerus and amputation stump closure". Thereafter he was treated in Krishna Sevashrama Hospital from 20.08.2008 till 04.09.2008 and discharged with an advise for follow up. But the petitioners have not produced any materials to show, what treatment they have provided to Suresh Kumar after 04-09-2008 till his death on 17-06-2014. On the other hand it is cleared from the Fosa Humanitarian Hospital record produced by the petitioners recently that 43 SCCH-24 MVC No.9193/2008 the deceased was abandoned by his family members when he was under treatment in Victoria Hospital and no one were there to look after him hence he was shifted to Fosa Humanitarian hospital and even after a long and regular treatment he did not survive and died in the said hospital on 17-06-2014. For all these reasons this Tribunal is of the considered opinion that, the persons who have abandoned the deceased Suresh Kumar in the hospital in his last days, are not entitled for any compensation except the medical expenses said to have been incurred during the treatment of deceased Suresh Kumar from the date of accident on 08-08-2008 till 04- 09-2008 & loss of income during the treatment period as loss of estate as held in the decision reported in 2006(2) AIR KAR R 167, wherein it is observed that, Legal representatives are entitled to claim compensation only to extent of loss of estate i.e, medical expenses and loss of income during treatment period. Therefore, I proceed 44 SCCH-24 MVC No.9193/2008 to appreciate the materials with regard to the treatment expenses & the loss of income suffered by the petitioners after the accident caused to deceased petitioner Suresh Kumar.
35. It is the evidence of P.W.3 that, immediately after the accident his father was shifted to Garden City Hospital, later to Rajashekar Hospital & then shifted to Apollo Hospital on 09.08.2008. That subsequently his father was shifted to Sri. Krishna Sevashrama Hospital on 28.08.2008. Further deposed that, left leg of his father was operated & it was amputated above knee on 12.08.2008 in Apollo Hospital & fracture of left hand was operated by inserting rods at Sri. Krishna Sevashrama Hospital. Further deposed that, his father was inpatient in Apollo Hospital from 09.08.2008 to 20.08.2008 & hospital bills during this period was Rs.2,70,820.35 & they have paid a sum of Rs.1,30,000/- to the said hospital and due to their poor financial condition they 45 SCCH-24 MVC No.9193/2008 could not provide treatment in the said hospital and hence his father was shifted to Sri. Krishna Sevashrama Hospital, Jayanagar on 20.08.2008 and he was an inpatient in the said hospital till 04.09.2008. Further deposed that, on discharge, his father was advised to complete rest & to attend follow-up treatment & they have spent more than Rs.1,00,000/- towards conveyance, medical and nourishment expenses. P.W.3 further deposed that, as per the advise of the doctor his father attended physiotherapy for a period of three months and during which period they have spent a sum of Rs.20,000/- towards conveyance and nourishment. During the evidence in the 1st instance, deceased petitioner Suresh Kumar had produced Ex.P.5, the Discharge Summary issued by Apollo Hospitals, Bengaluru. Ex.P.6, the letter issued by Garden City Health Care Academy Hospital dated:08.08.2008. Ex.P.7, the Discharge Summary issued by Sri. Krishna 46 SCCH-24 MVC No.9193/2008 Sevashrama Hospital; Ex.P.8, final bills with receipt issued by Apollo Hospital; Ex.P.9, Inpatient bill of Sri. Krishna Sevashrama Hospital, Ex.P.10, 18-medical bills and Ex.P.11, 30-Prescriptions. Ex.P.6 shows that, the deceased Suresh Kumar was admitted as an inpatient from 09.08.2008 to 20.08.2008 at Apollo Hospital, Bengaluru and he had discharged on request and at that time he needed two more surgical procedures-ORIF of fracture humerous and amputation stump closure. Ex.P.7 shows that, the petitioner was admitted at Sri. Krishna Sevashrama Hospital from 20.08.2008 to 04.09.2008. Ex.P.8, the final bills of Apollo hospitals shows that, the petitioners have spent a sum of Rs.2,70,820.35. But out of this amount petitioners was able to pay only Rs.1,30,000/- only as admitted by P.W.1 and P.W.2. Ex.P.9, inpatient receipt of Sri. Krishna Sevashrama Hospital shows, the petitioners have spent Rs.21,360/- towards treatment of deceased Suresh 47 SCCH-24 MVC No.9193/2008 Kumar. Ex.P.10, medical bills shows that, the petitioners have spent Rs.6,007.79/- towards medicines and to provide blood. In all the petitioners have spent Rs.1,57,368/-. (Rs.1,30,000/- + Rs.21,360/- + Rs.6,008/- to be considered).
36. During his life time PW.1 / deceased Suresh Kumar in his affidavit evidence deposed that, at the time of accident he was working as Assistant/Milk Vendor at 'Raghavendra Milk Dairy' run by its proprietor Sri. R. Jayaram and he was earning Rs.4,500/- per month. P.W.3 apart from reiterated the said contents has deposed that, due to amputation of left leg, his father was unable to move till his death and he lost his job. Further deposed that, his father was the only earning member of the family and they were depending on his income. In order to show the avocation and income, P.W.1, the then petitioner Suresh Kumar has produced letter stated to be 48 SCCH-24 MVC No.9193/2008 a Salary Certificate issued by Sri. R.Jayaram at Ex.P.12. Ex.P.12 shows that, Suresh Kumar was working at Raghavendra Milk Dairy under one Jayaram and he has paid salary of Rs.4,500/- per month. Further it reveals that, due to accidental injuries he was unable to perform his work, therefore he has been removed from the job. Except the said document, petitioners have not produced any relevant documents or examined the employer to show the avocation and income of Suresh Kumar. Hence, in the absence of relevant documents and taking into consideration of the age, avocation and the date of the accident, if the income of the deceased Suresh Kumar is inferred at Rs.4,000/- p.m that would meet the ends of justice. Accordingly, I came to conclusion that, deceased Suresh Kumar would not have carried out his day-to-day activities atleast for a period of 6 months from the date of accident. Hence, the petitioners are entitled for a sum of Rs.24,000/- (Rs.4,000/- X 6 months).
49 SCCH-24 MVC No.9193/2008
1. Medical Expenses. Rs.1,57,368/-.
2. Loss of Estate. Rs. 24,000/-
Total Rs.1,81,368/-
So, the petitioners are entitled for a total compensation of Rs.1,81,368/- which is rounded off to Rs.1,81,400/- (Rupees One Lakh Eighty One Thousand Four Hundred only) with interest at the rate of 8% per annum from the date of petition, till the date of realisation.
37. It is held supra by this Tribunal that, the accident has occurred solely due to the rash and negligent driving of the Car bearing Reg.No.KA-03-Z-4643 by its driver. Respondent No.1 is the insurer, respondent No.2 is the R.C. owner and respondent No.3 is the insured of the said car are jointly and severally liable to pay compensation to the petitioners. Accordingly, Recasted Issue No.2 is answered partly in the affirmative.
50 SCCH-24 MVC No.9193/2008 ISSUE No.3:
In result, I proceed to pass the following:
ORDER The Petition filed under Section 166 of Motor Vehicles Act by the petitioners is hereby allowed in part with costs. The petitioners are awarded a total compensation of Rs.1,81,400/- (Rupees One Lakh Eighty One Thousand Four Hundred only) with interest at the rate of 8% p.a from the date of petition, till deposit.
Respondent No.1 to 3 are jointly and severally liable to pay the compensation awarded in this case to the petitioners. The respondent No.1 shall deposit the said compensation amount into the Tribunal within 60 days from the date of this Order.
Out of the compensation award amount, the petitioner No.1 is entitled for a sum of Rs.1,01,400/, petitioner No.2 and 3 are entitled for a sum of Rs.40,000/- each with proportionate interest. The petitioner No.1 to 3 are at liberty to withdraw entire compensation amount with proportionate interest. Advocate's fee is fixed at Rs.1,000/-.
51 SCCH-24 MVC No.9193/2008 Draw Award Accordingly.
(Dictated to the stenographer directly on Computer, typed by him, corrected by me and then pronounced in the open court on this the 19th day of March, 2018).
(ZAIBUNNISA) XII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
ANNEXURE Witnesses examined on behalf of the Petitioners:
P.W.1 - Sri. Suresh Kumar. P.W.2 - Dr. Shivarajaiah. P.W.3 - Sri. Manjunath.
Witnesses examined on behalf of the Respondents:
R.W.1 - Smt. B.R. Neeladevi. R.W.2 - Sri. Rajshekar Shiragavi. R.W.3 - Sri. Chikkamallu.
Documents marked on behalf of the Petitioners:
Ex.P.1 - Copy of FIR with complaint.
Ex.P.2 - Copy of Spot Mahazar. Ex.P.3 - Copy of Sketch. Ex.P.4 - Copy of Charge sheet. Ex.P.5 - Discharge summary. Ex.P.6 - Letter issued by Garden City Health
Care Academy Hospital dt.08.08.2008. Ex.P.7 - Discharge summary issue by Sri. Krishna Sevashrama Hospital. Ex.P.8 - Final bill with receipt issued by Apollo Hospitals.
Ex.P.9 - Sri. Krishna Sevashrama Hospital IP bill
52 SCCH-24 MVC No.9193/2008 Ex.P.10 - 18-Medical bills.
Ex.P.11 - 30-Prescriptions.
Ex.P.12 - Salary certificate.
Ex.P.13 - 110 Form.
Ex.P.14 - Case sheet.
Ex.P.15 - X-ray film.
Ex.P.16 - X-ray film.
Ex.P.17 - Death certificate of Suresh Kumar. Ex.P.18 - Copy of Ration card.
Ex.P.19 - Copy of Voter ID card of petitioner No.1. Ex.P.20 - Copy of Aadhaar card of petitioner No.2. Ex.P.21 - Copy of Aadhaar card of petitioner No.3. Ex.P.22 - Medical certificate.
Documents marked on behalf of the Respondents:
Ex.R.1 - Copy of Insurance policy. Ex.R.2 - Copy of Charge sheet. Ex.R.3 - Letter sent to Owner of the vehicle. Ex.R.4 - Copy of order sheet in CC.497/2009. Ex.R.5 - Copy of Substance of Accusation. Ex.R.6 - Copy of statement of witness. Ex.R.7 - Copy of statement of witness. Ex.R.8 - Copy of receipt of inspection of Alcohol. Ex.R.9 - Copy of statement of witness. Ex.R.10 - Copy of Charge sheet. Ex.R.11 - Authorisation letter.
Ex.R.12 - General Power of Attorney.
Ex.R.13 - Delivery Note.
(ZAIBUNNISA) XXII A.S.C.J. & XX A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.