IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL, XX ADDL.SMALL CAUSES JUDGE, BANGALORE, (SCCH22) Dated this the 18th day of April 2015. Present: Sri.[ENTITY], M.Com., LLB., Member, MACT & XX ASCJ, Bangalore. [CASE NUMBER] Petitioner : Miss. [ENTITY], D/o. late [ENTITY], Aged about 22 years, Residing at No.659, Kalasipaalya, Doddaballapura Taluk-561203, Bangalore Rural District. (By Sri.[ENTITY], Adv.) -Versus- Respondents: 1. Sri. [ENTITY], S/o. [ENTITY], Aged about 44 years, #268, 8th Cross, 1st Main, Manajunath Nagar, Bangalore-10. (Exparte) 2. [ENTITY], The Manager, #89, SVR Complex, 2nd Floor, Hosur Main Road, Madivala, Bangalore-68 (Valid from 09.10.2010 to 08.10.2011) (By Sri.[ENTITY], Adv.) [CASE NUMBER]
The petitioner has filed this claim petition under [SECTION] of the [ACT], seeking compensation of Rs.10,00,000/- from the Respondents for the injuries sustained by him in Motor Vehicle's Accident.
2. The brief facts of the case are that on 28.04.2011 at about 7.25 a.m., when the driver of [ENTITY] vehicle bearing reg.No.KA-07-3215 had picked up the petitioner and other employees of Apotex Pharmachem India. Ltd., from their respective houses and they were on the way to their company, near by Konappana Agrahara nice road bridge i.e., NH-7 on the service road, the driver of the above said [ENTITY] vehicle driven in a rash and negligent manner, without following the traffic rules and regulations dashed Tempo Traveler vehicle bearing reg. No.KA-01-C-4451, which is coming from opposite direction and also to the barricades belonging to the BETL Company. Due to the impact he fell down and sustained multiple grievous injuries. Immediately after the accident petitioner was shifted to Apollo Hospital, Near IIMB, Bannerghatta Road, Bangalore was admitted as an inpatient and [CASE NUMBER] was conducted on the petitioner on 30.04.2011, plates have been inserted in her neck and the same are now also inside the neck of the petitioner and also on account of insertion of plates, the petitioner now also undergoing unimaginable pain with an advise to take rest and continue regular check -up follow-up treatment etc. She has suffered permanent disability. She has spent more than Rs.2,62,229/- towards medical expenses and the said amount of Rs.2,62,229/- was borne by the medical insurer. The petitioner spent substantial amount towards attendant charges, food, travel expenses etc.
3. Further it is alleged that the petitioner was aged 22 years as on the date of accident. She was working as a Technical Assistant in Production Department at Apotex Pharmachem India Pvt. Ltd., and she was drawing a salary of Rs.12,700/- per month. Due to the injuries sustained the petitioner was not able to attend the duty from 28.04.2011 to 10.07.2011 and as such she lost her salary for no fault of her. The petitioner had undergone pain, sufferings mental agony and still she feels pain. The accident occurred solely on the negligence of driver of the [CASE NUMBER] [ENTITY] bearing Reg. No.KA-07-3215. The respondents No.1 & 2 being Owner and insurer are jointly and severally liable to pay compensation. Hence, petitioner has prayed for award of compensation of Rs.10,00,000/- with interest.
4. In pursuance of service of the notice, the respondent No.1 remained absent and he has placed exparte. The respondent No. 2 has appeared through its counsel and filed written statement stating that the petition is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is contended that the policy of insurance is issued to [ENTITY] bearing reg. No.KA-07-3215 with terms and conditions. It is contended that the owner of the vehicle has not submitted the claim form and other documents RC, DL, Permit etc for verification. It is contended that the Tempo Traveler bearing reg. No.KA-01-C-4451 is sole responsible for the unfortunate accident. But the owner of the said Tempo Traveler is not a party to the proceedings and hence the petition is not maintainable as non-joinder of necessary parties. At the times of accident there are more sixteen [CASE NUMBER] person are traveling in the [ENTITY] bearing reg. No.KA-07-3215 against to its seating capacity. The driver of the [ENTITY] bearing reg.No.KA-07-3215 was not holding valid and effective driving licence on the date of accident. The compensation claimed is highly excessive and exorbitant and denied all other averment and allegations made in the claim petition. Hence for all these reasons prayed for dismissal of claim petition.
5. On the basis of the above pleadings, following Issues have been framed:
ISSUES
1. Whether petitioner prove that the accident that occurred on 28.04.2011 at about 07.25 a.m. on NH-07, Hosur road, Konappana Agrahara, near Nice road Bridge, Bangalore was caused due to the rash and negligent driving [ENTITY] vehicle bearing Reg.No.KA-07-3215 by its driver, who dashed against Tempo Traveler vehicle bearing No.KA-01-C-4451, due to which, she who was traveling in the said [ENTITY] sustained grievous injuries?
2. Whether the 2nd Respondent proves that the driver of [ENTITY] vehicle bearing [CASE NUMBER] Reg.No.KA-07-3215 was not holding valid and effective D.L. to drive the particular category of the vehicle at the relevant time of accident?
3. Whether petitioner is entitled for compensation? If so, for what amount and from whom?
4. What order or Award?
6. Petitioner to prove the above said issues, has got examined himself as PW1 and got examined two witnesses as PW2 & PW3 and got marked Exs.P.1 to P.33 and closed his side. The respondent No.2 has got examined its Legal Manager as RW.1 and got marked Ex.R.1 to R.3 and closed his side evidence.
7. Heard both sides' arguments.
8. My answer to the above Issues is as under:
Issue No.1 : In the Affirmative Issue No.2 : In the Negative Issue No.3 Yes, to the extent as shown in the final order, from Respondents No.1 & 2. Issue No.4 : As per final order for the following [CASE NUMBER] REASONS 9. Issue No.1:
Petitioner (Injured) got examined himself as PW1 and has filed his affidavit, narrating the accident as mentioned in the above pleadings. To substantiate the said facts, petitioner has produced True copies of FIR, Order sheet, Complaint, Charge sheet, Mahazar, Sketch, Intimation and Wound certificate pertaining to [CASE NUMBER] of Electronic City Traffic Police Station, marked as Exs.P.1 to P.8 & P.33 respectively. On going through the above documents and the Charge sheet-Ex.P.4, it reveals the police on the complaint of the complainant- Sri.[ENTITY], after investigation, have placed charge sheet against the driver of the [ENTITY] bearing Reg. No.KA-07-3215 for having caused the accident due to his rash and negligent driving and the petitioner has sustained grievous injury. Nothing has been brought out in the cross examination of PW1 to disbelieve that the accident was not caused due to the negligence of the driver or the petitioner to have contributed his negligence for the accident. Hence, from the material placed on record, it could be held that [CASE NUMBER] the accident in question has occurred due to the rash and negligent driving of the [ENTITY] bearing Reg. No.KA- 07-3215 by its driver and the petitioner as per Ex.P.8- Wound certificate has sustained grievous injuries. Hence, I answer Issue No.1 in the Affirmative.
10. Issue No.2:
2nd respondent has contended that the driver of the [ENTITY] bearing Reg. No.KA-07-3215 was not holding valid and effective driving license to drive the particular category of the vehicle at the relevant time of the accident. But, in order to substantiate the said fact, the 2nd respondent not produced any material documents in this regard. On perusing the charge sheet Ex.P4, it reveals the police have not placed charge sheet against the driver of the [ENTITY] bearing Reg. No.KA-07-3215 for not holding valid driving license to drive [ENTITY] bearing Reg. No.KA-07-3215, as such it can be inferred that the driver of the [ENTITY] bearing Reg. No.KA-07-3215 was holding valid driving license at the time of the accident. Hence, I hold the 2nd respondent has failed to prove that the driver of the [ENTITY] bearing Reg.
[CASE NUMBER] No.KA-07-3215 was not holding valid driving license at the relevant time of the accident. Hence, I answer Issue No.2 in the Negative.
11. Issue No.3:
PAIN AND SUFFERINGS:-
This issue pertains to award of compensation. Petitioner has sustained injuries in the RTA. Petitioner in his evidence has deposed contents of petition and produced relevant documents to prove the injury. He has produced Ex.P.7- Wound certificate from the Apollo hospital and he has sustained following injuries:-
1. C 2-3 Fracture dislocation The injury is grievous in nature and to vital part. Hence a sum of Rs.60,000/- is awarded under the head "Pain and sufferings".
12. MEDICAL EXPENSES:-
The petitioner has produced two sets of medical bills at Ex.P.13 for a sum of Rs.4,307/- and Rs.7,400/-. Hence a sum of Rs.12,000/- is rounded off to Rs.15,000/- is awarded under this head. She must have spent [CASE NUMBER] miscellaneous expenses other than above amount. Hence, another Rs.10,000/-. In all a sum of Rs.25,000/- is awarded under this head.
13. LOSS OF INCOME DURING LAID UP PERIOD:-
The petitioner has stated that she was working as a Technical Assistant in the production department at Apotex Pharmachem India Pvt. Ltd. and drawing a salary of Rs.12,730/- p.m. She has produced Ex.P.9 - Salary certificate which shows that she was earning a sum of Rs.12,730/- p.m. As per discharge summary at Ex.P.12 she was inpatient for 12 days. In Ex.P.10 - Letter from her employer, it is stated that she is not reported to duty from 28.04.2011 to 10.07.2011. Hence, she remained absent for 2 months for her duty. Hence, a sum of Rs.30,000/-
is awarded under this head.
14. FOOD, NOURISHMENT, ATTENDANT AND TRANSPORTATION CHARGES:-
In the petition as well as in the evidence PW1 deposed that he has spent a sum of Rs.2,62,229/- towards medical treatment in four Hospitals. But looking to the nature of injuries sustained, was inpatient for 12 days as [CASE NUMBER] per at Ex.P.12 discharge summary from the Appollo hospital. She remained absent for 2 months for her duty. Hence, petitioner is entitled for a sum of Rs30,000/- is awarded under this head.
15. LOSS OF INCOME DUE TO DISABILTY:-
PW-2 - Medical record Technician has produced case sheet, x-rays and CT scans at Ex.P.29 to P.33. The PW-3 is doctor deposed that she was operated for the fracture of dislocation of C2 and Vertebra and obtained follow up treatment and she has neurological disability. He has not deposed any disability. In the cross examination he has specifically admitted that the treatment given by him is successful and petitioner has no difficulty and complainant can carry out her basic job. Even petitioner has continued to work from 10.07.2011 as per Ex.P.10. Hence, there is no loss of income due to disability. Hence, she can be awarded under the head "Loss of Amenities in life".
16. LOSS OF AMENITIES IN LIFE:-
Since petitioner has sustained fracture injury to the C2 and vertebra and has undergone operation, she has to suffer in her future life and she will be not in a normal [CASE NUMBER] as it is sensitive organ and petitioner has to live with certain difficulty and pain in her day to day life. Even petitioner in her affidavit at para 6 has stated that she was not able to attend her duty from 28.04.2011 to 10.07.2011. Hence, it is just to award a sum of Rs.75,000/- under this head.
17. There are no further materials to show that the injuries would affect the life expectancy of the petitioner. There is no evidence for awarding any compensation under other heads. Hence, the petitioner is awarded compensation under the following heads:
1. Pain and sufferings Rs. 60,000-00
2. Medical expenses Rs. 25,000-00
3. Loss of income during laid up period Rs. 30,000-00
4. Food, nourishment, attendant and Rs. 30,000-00 Transportation
5. Loss of amenities in life Rs. 75,000-00 Total Rs.2,20,000-00
18. Thus, in all, petitioner is entitled for compensation of Rs.2,20,000/-. It is just, fair and adequate under the facts and circumstances of the case.
19. With regard to Liability: The 2nd respondent has taken specific contention that the original driver was [CASE NUMBER] substituted and they have examined their official in this regard and they have also relied upon a document said to be letter written by the charge sheeted driver at Ex.R.3. In cross examination he admits that the police have filed the charge sheet against the said driver and he do not know whether he has pleaded guilty after one year two months and they have not challenged and not complained to higher authorities, except the said letter at Ex.R.3 said to be written by the driver. Absolutely there are no other documents to believe that the driver has been implicated unless there is sufficient and clear evidence. The defence of the respondent no.2 cannot be believed to this effect. Hence, the contention of 2nd respondent in this regard cannot be accepted from the materials available on record, it can be held that the charge sheeted driver was driving the vehicle and hence, insurance company is liable to pay the compensation. Hence, 2nd respondent is held liable to pay compensation. Hence, Respondents No.1 and 2 are jointly and severally held liable to pay compensation to the petitioner with interest at 8% p.a. from the date of petition till realization as per the citations reported in:-
[CASE NUMBER]
1. [PRECEDENT] between Smt. [PRECEDENT].
2. [PRECEDENT] between M.V.Chowdappa vs. Mohan Breweries and Distilleries Ltd.
and another.
Hence, I answer Issue No.2 in the affirmative accordingly.
20. Issue No.4: In view of my finding on Issue Nos. 1, 2 and 3, I proceed to pass the following:
ORDER The claim petition filed by the petitioner under [SECTION] of [ACT], is hereby allowed in part, with cost.
The petitioner is entitled for compensation in a sum of Rs.2,20,000/-
(Rupees Two lakhs Twenty two thousand only) and shall carry interest at 8% p.a. from the date of petition till realisation of the amount.
Respondents No.1 and 2 are jointly and severally held liable to pay the above said compensation amount to the [CASE NUMBER] and the primary responsibility is fixed on 2nd Respondent-Insurance company to deposit the compensation amount within 30 days from the date of this order.
Entire compensation amount with interest shall be paid to the petitioner on deposit as it is a meager amount and she is educated.
Advocate's fee is fixed at Rs.1000/-. Draw award accordingly.
(Dictated to the Stenographer through dictation, transcribed thereof is corrected and then pronounced by me in the Open Court on this the 18th day of April 2015).
([ENTITY]) Member MACT & XX ASCJ, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:
PW1 [ENTITY] PW2 [ENTITY] PW3 Dr. [ENTITY]
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:
Ex.P1 Copy of FIR Ex.P2 Copy of Order sheet [CASE NUMBER] Ex.P3 Copy of Complaint Ex.P4 Copy of Charge sheet Ex.P5 Copy of Mahazar Ex.P6 Copy of Sketch Ex.P7 Copy of Intimation Ex.P8 Copy of Wound certificate Ex.P9 Salary certificate Ex.P10 Contract letter Ex.P11 Letter Ex.P12 Discharge summary Ex.P13 Medical bills Ex.P14 Out patient bills Ex.P15 to Ex.P18 SLV Tours and Travels bills Ex.P19 Photo Ex.P20 CD Ex.P21 Copy of Election ID card Ex.P22 Copy of SSLC Marks card Ex.P23 Copy of death certificate father Ex.P24 Copy of Ration card Ex.P25 Copy of College ID card Ex.P26 Copy of computer science & Eng. Marks card Ex.P27 Copy of ID card Issued Company Ex.P28 Lakki Digital Studio receipt Ex.P29 Authorization letter Ex.P30 Case sheet Ex.P31 7 X- rays Ex.P32 X rays films and CT scan film Ex.P33 7 CT scan films
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1 [ENTITY] P LIST OF DOCUMENTS MARKED ON BEHALF OF RESPONDENTS:
Ex.R1 Copy of Policy Ex.R2 Investigation report Ex.R3 Statement of driver Member, MACT & XX ASCJ, Bangalore.