Bangalore District Court
Gangaiah .G vs M/S. Arunachala Logistics Private on 8 June, 2018
BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL
& XV ADDL. JUDGE, Mayo Hall Unit, Bengaluru.
(SCCH- 19)
Dated this the 8th day of June 2018
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
MVC No.5805 / 2016
Petitioner : Gangaiah .G.
S/o Nanjundaiah,
Aged about 65 Years,
Resident of Near Anjenya Temple,
Gollahalli, Biskur,
Kudur Hobli, Magadi Taluk,
Ramanagar District.
(Pleader by Sri. M.D.N)
-Vs-
Respondents : 1. M/s. Arunachala Logistics Private
Limited,
Opp. CVA Complex,
Near GPT Petrol Bunk,
Rayakottai Road, Hosur Taluk,
Krishnagiri District-635 109.
(Owner of Lorry bearing Reg.
No.TN- 70-J-4484)
(By Pleader Sri. G.P)
2 SCCH - 19
MVC.5805/2016
2. The New India Assurance Company
Limited,
1, 2nd floor, Shankar house,
Mekhri Circle, Near Swimming Pool,
Raja Mal vilas Extention,
Aramanenagar, Bangalore-80.
Policy No.61320331150100004085,
Date of issue : 12.02.2016,
Date of Expiry: 11.02.2017.
(By pleader Sri. K.U)
*****
JUDGMENT
The Petitioner has filed this petition under Sec.166 of Motor Vehicles Act 1989 for claiming compensation of Rs.10,00,000/-.
2. The Brief facts of the Petitioner's case are as under:
According to Petitioner that on 19-03-2016 at about 1.45 p.m. when the Petitioner was pillion rider of the TVS XL Heavy Duty bearing Reg.No.KA-02-XY-7628 along with rider by parking on the left side of Dasppanapalya Gate, Kuduru Robli, Kuduru Mararur Road, Magadi Taluk by observing all traffic rules, at that time, one Lorry bearing Reg.No.TN-70-J-4484 driven by its driver in a rash and negligent manner, so as to endanger
3 SCCH - 19 MVC.5805/2016 human life, without following any traffic rules and dashed to the TVS XL vehicle from behind. Due to which, Petitioner fell down and sustained grievous injuries and TVS XL vehicle also damaged.
3. Petitioner further stated that, after the accident the petitioner was shifted to Harsha Hospital, Nelamangala for first aid and then shifted to KIMS Hospital and Research Centre, Bangalore, wherein he took treatment as an inpatient and undergone operation and spent more than Rs.1,00,000/- towards medical expenses, conveyance, food, transport and other charges. Petitioner further stated that, due to injuries sustained in the accident, he cannot do his activities as earlier to the accident and unable to bear pain, unable to bear any weight, unable to do any work, unable to sit, stand, squat, walk, run, jump, climb the stairs, unable to bend or hold any weight bearing objects, unable to attend Indian toilet, unable to sleep properly and the injuries resulted in permanent disablement. Due to injuries, the petitioner is unable to do agriculture work, thereby loss of income, causing mental agony, hardship and financial hardship. It is further stated that, this accident occurred due to rash and negligent driving of the driver of Lorry bearing Reg.No.TN-70-J-4484, hence, Kuduru Police 4 SCCH - 19 MVC.5805/2016 have registered a case against the driver of offending vehicle in Cr.No.83/2016 for the offences punishable U/Sec., 279 and 337 of IPC. The Respondent No.1 being Owner and Respondent No.2 being Insurer of the vehicle are jointly and severally liable to pay compensation to the Petitioner. Hence, the petitioner prayed to grant compensation.
4. After Service of notice, Respondent No.1 & 2appeared through their respective Counsel. Respondent No.2 has filed Written Statement. The Respondent No.1 not filed written statement.
5. Brief averments of the written statement of Respondent No.2 as under:
This Respondent contending that this Petition is not maintainable either in law or on facts. This Respondent admits about issuance of Insurance policy in respect of Lorry bearing Reg.No.TN-70-J-4484 and restricted its liability to the terms and conditions of the policy. It is further stated that, the Petition is bad for non joinder of necessary parties and also denied the alleged accident, manner in which accident took place and injury sustained by the petitioner due to accident and treatment taken for those injuries. It has also denied age, income 5 SCCH - 19 MVC.5805/2016 and occupation of the petitioner, medical expenses incurred by him and disability caused to him. It is further stated that the driver of Lorry bearing Reg.No.TN-
70-J-4484, does not posses valid D.L. and its owner does not posses valid and effective Permit and F.C. to the said vehicle as on the date of accident. Hence, there is a violation of insurance policy conditions. It is further contended that, claim of the petitioner is excessive and exorbitant. Hence, prayed to dismiss the petition with costs.
6. Based on the above pleadings, my Predecessor has framed the following:-
ISSUES
1) Whether Petitioners prove that, on 19.03.2016 at about 1.45 p.m., when the petitioner was a pillion rider of the TVS XL Heavy Duty bearing Registration No.KA-02-
XY-7628 sitting along with rider by parking on the left side of Dasappanapalya Gate, Kuduru Hobli, Kuduru Marurur Road, Magadi Taluk, the driver of the Lorry bearing Registration No.TN-70-J-4484 drove the same in a rash and negligent manner endangering human life without following any traffic rules came at a high speed and dashed against motor cycle of the petitioner as a result the petitioner fell down and sustained grievous injuries?
6 SCCH - 19 MVC.5805/2016
2) Whether the Petitioner is entitled for compensation? If so, how much and from whom ?
3) What award/order?
7. In order to prove the case, Petitioner side three witnesses examined as Pw1 to 3 and got produced in all 27 documents marked as Ex.P1 to 27. Respondents have not adduced any oral or documentary evidence on their behalf.
8. Heard arguments of both side and Perused the materials available on hand.
9. For the following reasons, I given the answer to the above Issues as under:-
Issue No.1: In the Affirmative,
Issue No.2: Partly in the Affirmative
Issue No.3: As per final order
for the following:
REASONS
10. ISSUE No.1: It is specific case of the Petitioner
that, on 19-03-2016 at about 1.45 p.m. when the Petitioner was pillion rider and the rider of the vehicle bearing No.KA-02-XY-7628 were sitting by parking on the left side of the Dasppanapalya Gate, Kuduru Hobli, 7 SCCH - 19 MVC.5805/2016 Kuduru Mararur Road, Magadi Taluk, at that time, the driver of the Lorry bearing No.TN-70-J-4484 drive in a rash and negligent manner with high speed and dashed against the Motor cycle of the petitioner, as a result, the petitioner fell down and sustained grievous injuries, hence he prays for grant the compensation. In the written statement, the respondent No.2 has denied the accident and also taken the contention that, the accident was occurred due to the negligency of the petitioners and there is no any fault of the driver of the offending vehicle and the driver of the offending vehicle is not having valid driving license.
11. The petitioner Gangaiah examined himself as PW.1 and filed the affidavit in lieu of chief examination. In his chief affidavit, he has repeated the entire averments of the petition and further produced the true copy of FIR and complaint marked as Ex.P1 and P.2, produced spot mahazar and one referral letter marked as Ex.P.3 and P.4, produced one MLC case record marked as Ex.P.5, produced 74 medical bills marked as Ex.P.6, produced 50 prescriptions marked as Ex.P.7, produced notarized copy of Aadhaar card marked as Ex.P.8, produced copy of charge sheet marked as Ex.P.9, produced copy of sketch and Wound certificate marked as Ex.P.10 and 8 SCCH - 19 MVC.5805/2016 P.11, produced IMV reports and letter issued by hospital marked as Ex.P.12 and P.13, produced blood report and MRI report marked as Ex.P.14 and P.15, produced tax invoices and hospital outpatient bill marked as Ex.P.16 and P.17, produced 9 medical bills marked as Ex.P.18, produced one outpatient card marked as Ex.P.19, produced 4 medical prescriptions marked as Ex.P.20, produced 8 x-ray films and MRI scan marked as Ex.p.21 and P.22, produced 2 photographs with CD marked as Ex.P.23. In the cross-examination, the respondent counsel suggested that, the rider of the Motor cycle was ridden without DL and the offending vehicle is not involved in the accident and also there is no any fault of the driver of the Lorry, but same is denied. The respondent counsel nothing has been eliciting about denial of the accident and injuries sustained by the petitioner in the accident.
12. Another one witness examined as PW.2, he has produced one outpatient record and 2 x-rays marked as Ex.P.24 and P.25. In his chief examination, he has deposed that, the stoke occurred before the accident and also he has given the treatment for fracture of clavicle and fracture of right tibia and further admitting that, the fracture of the patient is united. Another one witness Dr. 9 SCCH - 19 MVC.5805/2016 Ramachandra examined as PW.3 and filed the affidavit in lieu of chief examination. In his chief affidavit, he has assessed the disability of the petitioner and treatment taken by the petitioner in the hospital. Further he has produced one outpatient card and one x-ray marked as Ex.P.26 and P.27. In the cross-examination, petitioner counsel only to eliciting about the assessment of the disability but nothing has been eliciting about denial of the accidental injuries.
13. I have perused the documents produced by the petitioner it appears that, the Kuduru Police, Magadi Taluk has registered the Criminal case in Crime No.83/2016 against the driver of the Lorry TN-70-J-4484 for the offence punishable U/Sec. 279, 337 of IPC on the basis of the complaint lodged by the complainant. After submitting the FIR, the police have conducted the spot mahazar and prepared the rough sketch of the accident took place and seized the vehicles. After received the IMV report and wound certificates and completion of the investigation, the I.O has submitted the Charge sheet against the driver of the offending vehicle. The police have alleged that, the driver of the Lorry bearing No.TN- 70-J-4484 drive in a rash and negligent manner with high speed and dashed the Motor cycle bearing No.KA-
10 SCCH - 19 MVC.5805/2016 02-XY-7628 as a result, rider of the Motor cycle and pillion rider were fell down and sustained grievous injuries. Though the respondent No.2 has denied the rash and negligent driving of the offending vehicle, but nothing has been eliciting in the cross-examination of the petitioner. After perusal of the mahazar and rough sketch it disclose that, the petitioner and rider of the Motor cycle sitting by parking the Motor cycle on the left side of the road, near the bus stop at that time the Lorry was came from behind and dashed the said Motor cycle. Therefore it is clear that, when the petitioner and rider of the Motor cycle were sitting with the parking of the said two wheeler, at that time, the driver of the Lorry was came with high speed and negligent manner and dashed the said Motor cycle. The respondents have not denied the mahazar and sketch of the accident took place. It is pertain to note that, the respondents have not examined the driver of the offending vehicle, hence an adverse inference can be drawn against the rash and negligent driving of the offending vehicle. Either the owner nor the driver of the Lorry were challenged the complaint and also Charge sheet submitted by the I.O. The respondents have not denied the accident and also injuries sustained by the petitioner in the accident. The respondents have failed to adduce the evidence with regarding sole 11 SCCH - 19 MVC.5805/2016 negligence of the petitioner. There are no any contradictions to disbelieve or suspected the police documents. Therefore it is proved that, the driver of the offending vehicle bearing No.TN-70-J-4484 drive in a rash and negligent manner with high speed and dashed against the petitioner's Motor cycle, as a result, the petitioner and rider of the Motor cycle were fell down and sustained grievous injuries. Hence, I given the answer to the Issue No.1 in the Affirmative.
14. Issue No.2:- The Petitioner claiming compensation amount of Rs.10,00,000/- with respect to road traffic accident and sustained injuries including pain and suffering. The Petitioner has produced wound certificate issued by Kempegowda Institute of Medical Sciences Hospital and Research Centre, which is marked as Ex.P11 and Petitioner has also produced inpatient record with Discharge summary which is marked as Ex.P5 issued by K.I.M.S Hospital and Research Centre, Bengaluru. Further produced medical bills in support of treatment taken in the hospital. The Petitioner has stated that, due to accident he sustained grievous injuries and cannot do his activities as earlier to the accident. Hence, he prayed to award compensation amount.
12 SCCH - 19 MVC.5805/2016
15. The counsel for the Respondent, nothing has been elicited to deny the injuries sustained by the Petitioner in a road traffic accident and also not disputed about wound certificate and also documents issued by above said Hospital, with respect to treatment given to the Petitioner. After perusal of the wound certificate Petitioner has sustained following injuries:-
1. Tenderness over middle 1/3rd of right clavicle,
2. Tenderness over proximal 1/3rd of right leg, It is opined that the above said injury No.1 & 2 are grievous in nature.
16. The Petitioner stated that he took treatment as an inpatient at KIMS hospital and produced the Discharge summary. The said document is disputed by the Counsel for the Respondent that the Discharge summary does not contain the Signature and seal of the doctor, hence said document is not marked. The said discharge summary disclose that the Petitioner took treatment as an inpatient in the said hospital from 20-03-2016 and discharged on 04-04-2016. As per discharge summary, the Petitioner sustained injuries stated in the wound certificate and he underwent operation on 22-03-2016.
13 SCCH - 19 MVC.5805/2016 Therefore, taking all these opinion the Petitioner was sustained grievous injuries in a road traffic accident and taking the treatment in the KIMS Hospital. In support of said treatment doctor has given the evidence and deposed about the disability of the Petitioner due to sustained injuries. Therefore, taking all these facts and nature of injuries of the Petitioner, I am of the opinion that, Petitioner is entitled for compensation amount of Rs.50,000/- as reasonable compensation under the head of pain and suffering.
17. The Petitioner has produced the Medical bills, Hospital bills and discharge summary. The KIMS hospital discharge summary speaks that, the Petitioner was admitted as an inpatient for about 15 days, under such circumstances, amount available in the Medical bills and hospital bills had to be compensated. The Petitioner has produced medical bills which are marked at Ex.P6 and Ex.P18. The Petitioner also produced medical prescriptions which are marked at Ex.P7 and Ex.P20. He has also produced one Bill for issued by J.M. Surgicals, which is marked as Ex.P16. The Petitioner also produced out patient Card which are marked as Ex.P19 and 24. Though the respondents have taken contention that, the Petitioner has not taken any treatment and also 14 SCCH - 19 MVC.5805/2016 not incurred said medical bills amount, but for the purpose of denying of said medical bills, nothing has been elicited in the mouth of the Petitioner and also cross examination of the doctor. On perusal of Sl.No.52 to 57 in Ex.P6 which are advance receipts. Hence, said amount is not taken into consideration while awarding the compensation under the head of medical expenses. After considering the medical bills and prescriptions, this tribunal has award compensation of Rs.1,41,180/- under the head medical expenses.
18. The Petitioner has not produced any document with respect to Attendant and for the expenditure of food and other charges. The discharge summary issued by KIMS Hospital speaks that, the Petitioner was admitted as an inpatient for about 15 days. The Petitioner also produced out patient record which are marked as Ex.P19 and 24. Therefore, considering period of admission as an inpatient for about 15 days and taking the attendant at home this tribunal has fixed reasonable transportation and conveyance charge of Rs.8,000/- under the head Transportation and conveyance charges.
19. The Petitioner stated that, at the time of accident he was doing Agriculture work and earning a sum of 15 SCCH - 19 MVC.5805/2016 Rs.20,000/- p.m. Due to accident he is not able to attend his work and hence he lost his income. To prove his income and avocation the Petitioner has not produced any document. It is pertain to note that, as per the Aadhaar card, i.e., Ex.P8, the date of birth of the Petitioner is shown as 20-12-1947. So the Petitioner is aged about 68 years at the time of accident. At this age it is not possible for the Petitioner to earn any income of his own capacity. However, considering the cost of living and his personal expenses, it is necessary to fix the minimum income. Therefore, considering the age and avocation of the Petitioner, this Tribunal has taken reasonable income of the Petitioner as Rs.4,000/- p.m.
20. The Petitioner stated that, due to injuries he was suffering pain and mental agony and he is unable to carry on his duty which he used to do prior to the accident. To prove the disability and treatment, he got examined the doctors. Pw.2 in his cross examination admitted that, the fracture of the Petitioner is united. Further he deposed that he has assessed the disability of the Petitioner at 9.6% to the whole body. Further he deposed that, the Petitioner suffered stroke prior to the accident. Further Pw.3 doctor in his chief examination deposed that, he has not treated the Petitioner and he is 16 SCCH - 19 MVC.5805/2016 only to assessed the disability of the Petitioner at 26.8%. In the cross examination the doctor has admitted that, the Petitioner has not shown the original documents to him pertaining to the alleged accident. Therefore, considering the evidence of the doctors and nature of injuries and disability of petitioner this Tribunal has considered the disability of the Petitioner at the rate of 16% to the whole body.
21. As per Petition, age of the Petitioner is 65 years. In support of his age, Petitioner has produced copy of Aadhaar card, which is marked as Ex.P8, which shows the date of birth of the Petitioner as 20-12-1947. Therefore the age of the Petitioner is taken into consideration as 69 years at the time of accident. Then the proper multiplier is 5, which comes as follows:
Rs.4000 x 12 x 5 x 16% = Rs.38,400/-
Hence, I award Rs.38,400/-- under the head loss of future earning capacity on account of disability.
22. Further the Petitioner also sought for expenses towards future medicine for further treatment. In the chief examination affidavit the Petitioner has stated that, he has to undergo 2 more surgeries for removal of rod 17 SCCH - 19 MVC.5805/2016 and implant at clerical bone for which he has to spent a sum of Rs.60,000/- towards future medical expenses. Pw.3 doctor stated in his chief affidavit that, the Patient is advised to undergo two more operations for removal of implants from right clavicle. Hence, by considering the evidence of doctor and nature of injury and treatment taken by the Petitioner in the hospital this Tribunal has award reasonable future medical expenses of Rs.10,000/- under the head future medical expenses. (Which does not carry any interest). Since the Petitioner has sustained injuries shown in the wound certificate and taken treatment as an inpatient for about 15 days, hence, the Petitioner is entitled to claim the compensation under the head loss of amenities. Therefore, this tribunal by considering the age & nature of injury sustained by the Petitioner, award reasonable compensation of Rs.10,000/- under the head loss of amenities.
23. Considering oral evidence coupled with documentary evidence of Pw.1 to 3, it is just and proper to grant compensation as follows:
18 SCCH - 19 MVC.5805/2016 Sl.
Particulars of Heads Amount
No.
1. Pain and sufferings Rs. 50,000-00
2. Medical expenses Rs. 1,41,180-00
3. Transportation, Nourishment, 8,000-00
Conveyance and attendant Rs.
charges
4. Towards loss of future income 38,400-00
due to permanent disability Rs.
5. Towards future medical Rs. 10,000-00
expenses
6. Loss of amenities Rs. 10,000-00
Total Rs. 2,57,580-00
The Petitioner is entitled for total compensation of Rs.2,57,580/-. It is rounded off to Rs.2,57,600/-.
24. Interest:
Hon'ble Supreme Court in Civil Appeal No.3238/2015 (arising out of SLP (C) 1865/2014 (Chanderi Devi and Anr., Vs. Jaspalsingh & Ors.,) and 2013 AIR SCW 5375 (Minu Rout & Ors vs Sathya Pradyumna Mohapatra & Ors), (2011) 4 SCC 481: (AIR 2012 SC 100) (Muncipal council of Delhi Vs Association of Victims of Uphaar Tragidy and Hon'ble High Court in MFA No.2326/2016 (Annapurna & Ors., G.Ashawathraya & Anr.,) have held that rate of interest shall be @9% p.a., 19 SCCH - 19 MVC.5805/2016 from the date of application till the date of payment.
Hence, I hold that the petitioner is entitled for interest @9% p.a., from the date of petition till the date of payment. In view of settled rate of interest, 9% is justified and not on higher side. Accordingly the petitioner is entitled to interest @ 9% pa.,
25. Liability:-
As per the petitioner, Respondent No.1 is the owner and Respondent no.2 is the insurer of the of the offending vehicle. Though the Respondent No.2 taken contentions like, the Petition is bad for non joinder of necessary parties and the driver of Lorry bearing Reg.No.TN-70-J-4484, does not posses valid D.L. and its owner does not posses valid and effective Permit and F.C. to the said vehicle as on the date of accident. They have not adduced any oral or documentary evidence on their behalf and also they have not examined the driver of offending vehicle. Hence an adverse inference can be drawn against the rash and negligent driving of driver of the offending vehicle in causing the accident. Accordingly, Respondent no.1 and 2 jointly are severally liable to pay the compensation to the Petitioner. Further, the Respondent no.2 being insurer of offending vehicle is primarily liable to pay the compensation to the Petitioner.
20 SCCH - 19 MVC.5805/2016 Accordingly, I answered Issue No.2 Partly in the Affirmative.
26. Issue No.3: After having answered Issue No.1 & 2, as supra I hold that, the petition filed by the petitioner is fit to be allowed in Part. In the result, I proceed to pass the following:-
ORDER The claim petition filed under Section 166 of the Motor Vehicles Act is hereby Partly allowed with cost as hereunder.
The Petitioner is entitled for compensation of Rs.2,57,600/- with interest @ 9% p.a., (excluding future medical expenses) from the date of petition till its realization.
The Respondent No.1 and 2 are jointly and severally liable to pay compensation to the Petitioner. Further, Respondent No.2 is directed to deposit the compensation amount together with 9% interest within Sixty days from the date of this order.
21 SCCH - 19 MVC.5805/2016 After deposit, entire compensation amount with interest shall be released in favour of the Petitioner (As the Petitioner has incurred huge amount towards the medical expenses) with proper identification.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and computerized by her and corrected by me and then pronounced in open court on this the 8th day of June, 2018) (DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.
A N N E X U R E:
List of witnesses examined for Petitioner:
PW.1 : Sri. Gangaiah. PW.2 : Dr. PW.3 : Dr.S.Ramachandra
List of documents marked for Petitioner:
Ex.P.1 True copy of FIR
Ex.P.2 True copy of complaint
Ex.P.3 True copy of Spot Mahazar
Ex.P.4 Referral/Transfer letter
Ex.P.5 Emergency case record
Ex.P.6 Medical bills ( 74 in no.s)
Ex.P.7 Medical prescriptions ( 50 in nos.)
22 SCCH - 19
MVC.5805/2016
Ex.P.8 Notarized copy of Aadhaar card
Ex.P.9 True copy of final report
Ex.P.10 True copy of Sketch
Ex.P.11 True copy of wound certificate
Ex.P.12 True copy of IMV Report
Ex.P.13 Letter issued by KIM's Hosptial
Ex.P.14 Blood Report
Ex.P.15 Brain MRI Report
Ex.P.16 Tax invoice of JM Surgical
Ex.P.17 Out patient bill
Ex.P.18 Medical bills Sl.No.3 to 11
Ex.P.19 Out patient card
Ex.P.20 Medical prescriptions ( 4 in no.s)
Ex.P.21 X-Ray film ( 8 in no.s)
Ex.P.22 MRI X-Ray scan
Ex.P.23 2 photos with CD
Ex.P.24 Outpatient card
Ex.P.25 X-Ray (2 in no.s)
Ex.P.26 Outpatient card
Ex.P.27 One X-Ray
List of Witnesses examined for Respondent:
- Nil -
List of Documents marked for Respondent:
- Nil -
(DYAVAPPA. S.B.) XV ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bengaluru.