Bangalore District Court
Sri. Abhishek vs Sri. Pradeep on 9 April, 2018
BEFORE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU CITY.
SCCH-14
Dated this the 9th DAY OF APRIL 2018
PRESENT: Sri. S.R.PARADESHI.,
B.Com., LL.B.,(Spl.)
Member, MACT,
XVI ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
MVC No.5791/2016
Petitioner/s : Sri. Abhishek,
S/o. Manjunatha,
Aged about 22 years,
R/at No.25, 5th Cross,12th Main,
T.R.Shamannanagara,
Srinagara,
Bengaluru - 560 050.
(Pleader by Sri.K.N)
- V/S -
Respondent/s 1. Sri. Pradeep, Major,
S/o. Gaviyappa,
R/at. Bommaiahappalya Village,
Kunigal Taluk, Tumkur District.
Muniyanapalya Village,
Kasaba Hobli,
Kithanagamangala Post,
SCCH-14 2 MVC No.5791/2016
(RC owner of the Ape Passenger
auto No.KA-06-D-0939)
(Pleader by Sri.M.G.)
2. The Regional Manager,
United India Insurance Co. Ltd.,
Regional Office, Motor TP, Hub,
Krishi Bhavana, 5th & 6th Floor,
Hudson Circle,
Bengaluru - 560 001
(Insurer of the Ape Passenger
auto No.KA-06-D-0939)
Policy
No.0714833114P107699802,
Policy period from 30-12-2014
to 29-12-2015)
(Pleader by Sri.C.B.A)
******
JUDGMENT
The petitioner has filed this petition U/s.166 of Motor Vehicles Act claiming compensation of Rs.50,00,000/- for the injuries sustained by him in a road traffic accident.
2. Brief averments of the petition are as under:
SCCH-14 3 MVC No.5791/2016As per the case of petitioner that, on 16-04-2015 at about 10.00 a.m., the petitioner was proceeding in his motor cycle bearing Reg. NoKA-41-EC-0768 from Kunigal to Gavimutta NH-4 Bypass road to go to Yediyur along with his friends in careful manner, when he reached near Chikkere Are Center, at that time, an Ape Passenger auto bearing No.KA-06-D-0939 came from opposite direction, belonging to the 1st respondent, was driven the same with high speed in a rash and negligent manner and the dashed against the petitioner's motor cycle. Due to the impact, the petitioner fell down and sustained grievous injuries over the right femur and right tibia and fibula. Immediately he was shifted to Government hospital and necessary treatment he was shifted to ESI hospital, Rajajinagar and then to M.S. Ramaiah hospital, Bengaluru.
The petitioner further submitted that he was admitted as an inpatient for a period of 15 months and under went several medical, clinical, radiological examination, laboratory tests, x-rays. Thereafter he under went surgery and implants were inserted and finally he was advised by the doctors for a bed rest with regular follow up treatment. He further submitted that SCCH-14 4 MVC No.5791/2016 again he admitted to the M.S.Ramaiah hospital, ESI hospital, Bengaluru, for further treatment and doctor advised for right leg amputation. He spent more than Rs.12,00,000/- towards medical expenses other than, conveyance, food and nourishment charges and other incidental charges. He is still suffering from pain and he is in deep mental agony, still he is suffering with gross deformity.
The petitioner further submitted that, prior to the accident he was working as a delivery boy at Sapna Book House, Gandhinagara, Bengaluru and earning Rs.8,400/- p.m. Due to the accidental injuries he lost the future income, future prospective life, happiness, earning capacity and has become disabled and dependent and now he cannot discharge his duty effectively.
It is further submitted that the Kunigal police have registered a Criminal Case No.113/2015 against the driver of the Ape passenger auto for the offence under Sec.279 and 337 of IPC and after investigation, the concerned have filed the charge sheet against the offending vehicle driver for the offences punishable under Sec.279,337 & 338 of IPC. It is further submitted that SCCH-14 5 MVC No.5791/2016 the 1st respondent is the owner and 2nd respondent is the insurer and the policy was valid and was in force at the time of accident, and the driver of offending vehicle was holding a valid driving licence at the relevant point of time. On other grounds, he prayed for awarding compensation with cost and interest.
3. In response to the notice, both the respondent No.1 and 2 have appeared through their respective counsel and filed separate written statement.
The brief contentions of the written statement of respondent No.1 are as under:
This respondent has contended that the petition is not maintainable either in law or on facts of the case. This respondent has also denied the age, occupation and income of the petitioner. He has also contended that he is a stranger to the said alleged accident spot. This respondent also denied the nature of injuries sustained by the petitioner, treatment taken for those injuries and medical expenses incurred by him. He also contended that the Kunigal Police have registered a false case against the driver of the offending Ape passenger auto. He further contended that the petitioner is not entitled to SCCH-14 6 MVC No.5791/2016 get any relief as prayed in the petition prayer column. The petitioner has filed a similar petition in MVC No.1115/2015 on the file of senior civil judge court Kunigal against the respondent No.1 in respect of same incident and the respondent No.1 appeared in that case and filed written statement on 10-06-2016 and same is still pending.
The respondent No.1 has admitted that he is the owner of the vehicle Autorickshaw bearing Reg. No.KA- 06-D-0939. He further contended that the driver of the said auto was holding a valid driving licence and respondent No.2 is the insurer to the said vehicle and the policy was in force as on the date of accident. He further contended that the petitioner colluding with the concerned jurisdictional police given a false report against the driver of offending vehicle. The compensation claimed by the petitioner is excessive and exorbitant. Hence, on all these grounds, the 2nd respondent has prayed for dismissal of claim petition with costs.
4. The brief contentions of the written statement of respondent No.2 are as under:
This respondent has contended that the petition is not maintainable either in law or on facts of the case.SCCH-14 7 MVC No.5791/2016
The petition is bad for non joinder of necessary parties as the rider of the motor cycle are not made as party to the proceedings. The respondent has denied the age, occupation and income of the petitioner, and nature of injuries sustained by the petitioner, treatment taken for those injuries and medical expenses incurred by him. It is further contended that the petitioner has filed one more petition before Senior Civil Judge, Kunigal in MVC 1115/15 for the same cause of action/relief.
This respondent also contended that the driver of the auto was driving the same at slow speed, observing traffic rules and regulations on the correct side of the road in the direction in which it was moving and an experienced driver of the auto was manning the same at the time of the alleged accident, whereas the alleged accident has occurred on account of the triple riding in a two wheeler and it was imbalanced, thereby the rider who lost the control over his vehicle fell down. It is further contended that the motor cyclist was at fault for carrying two pillion riders which is not permitted under law. The petitioner lodged a false complaint against the alleged auto to get a wrongful gain and there is no SCCH-14 8 MVC No.5791/2016 reference in the MLC that the said auto caused the accident.
This respondent also contended that the drivers of both the motor vehicles were not hold a valid and effective driving licence to drive their respective vehicles and the petitioner falsely implicated the vehicle in question by concocting the documents. It is further contended that the offending vehicle does not possess valid permit and FC as on the date of accident. It is further contended that offending auto was driven by its driver beyond permitted area/radius, which amounts to the violation of the permit terms and conditions prescribed and hence, this respondent is not liable to indemnify the owner under the policy. The compensation claimed by the petitioner is excessive and exorbitant. Hence, on all these grounds, the 2nd respondent has prayed for dismissal of claim petition with costs.
5. On the basis of above pleadings, the following issues were framed:
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in the nature SCCH-14 9 MVC No.5791/2016 of permanent disablement on 16-04-2015 at about 10.00 a.m., at Chikkere Are Centre, Kunigal Town, Tumkur District, in an accident arising due to rash and negligent driving of driver of Ape Passenger Auto bearing Reg. No.KA-06-D--
0939 ?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What Order or Award?
6. At the first instance, the petitioner himself examined as PW.1 and got marked Exs.P.1 to 13. Subsequently, for the 2nd time he examined and got marked Ex.24 to P.26 documents. In support of his case, he examined the Attendar of M.S.Ramaiah hospital as PW2 and got marked Ex.P.14 to P.16 documents and also examined the Medical Record Technician of ESI hospital as PW3 and got marked Ex.P.17 to 21 documents and also examined the doctor as PW.4 and got marked Ex.P.22 and 23 and closed his side. On the other hand, the 2nd respondent examined its Administrative Officer as RW1 and not got marked any documents and closed its side.
7. Heard the arguments and perused the records.
SCCH-14 10 MVC No.5791/20168. My findings on the above issues are as under:-
Issue No.1 : Partly in the Affirmative.
Issue No.2 : Partly in the affirmative,
Issue No.3 : As per final order,
for the following:
REASONS
9. Issue No.1:- I have already narrated the case of the petitioner. In this case, the petitioner himself examined as PW1 and reiterated the petition averments in his examination in chief affidavit.
10. On the other hand, in this both the respondent No.1 & 2 have appeared through their respective counsel and filed the written statement separately. This respondent has contended that the petition is not maintainable either in law or on facts of the case. The 1st respondent has contended that the Kunigal Police have registered a false case against the driver of the offending Ape passenger auto. He further contended that the petitioner is not entitled to get any relief as prayed in the petition prayer column. The petitioner has filed a similar petition in MVC No.1115/2015 on the file of senior civil judge court Kunigal against the respondent No.1 in SCCH-14 11 MVC No.5791/2016 respect of same incident and the respondent No.1 appeared in that case and filed written statement on 10-
06-2016 and same is still pending. He admitted that he is the owner of the vehicle Autorickshaw bearing Reg. No.KA-06-D-0939. he further contended that the driver of the said auto was holding a valid driving licence and respondent No.2 is the insurer to the said vehicle and the policy was in force as on the date of accident.
11. The 2nd respondent has contended that the petitioner has filed one more petition before Senior Civil Judge, Kunigal in MVC 1115/15 for the same cause of action/relief. It is also taken contention that the accident has not occurred due to the negligence on the part of offending vehicle driver, whereas the alleged accident has occurred on account of the triple riding in a two wheeler and it was imbalanced, thereby the rider who lost the control over his vehicle fell down. It is further contended that the motor cyclist was at fault for carrying two pillion riders which is not permitted under law. The petitioner lodged a false complaint against the alleged auto to get a wrongful gain and there is no reference in the MLC that the said auto caused the accident. It is further contended that the offending SCCH-14 12 MVC No.5791/2016 vehicle does not possess valid permit and FC as on the date of accident. It is further contended that offending auto was driven by its driver beyond permitted area/radius, which amounts to the violation of the permit terms and conditions prescribed and hence, this respondent is not liable to indemnify the owner under the policy.
12. In support of his oral evidence, at the first instance, the petitioner himself examined as PW.1 and got marked Exs.P.1 to 13. Subsequently, for the 2nd time he examined and got marked Ex.24 to P.26 documents. In support of his case, he examined the Attendar of M.S.Ramaiah hospital as PW2 and got marked Ex.P.14 to P.16 documents and also examined the Medical Record Technician of ESI hospital as PW3 and got marked Ex.P.17 to 21 documents and also examined the doctor as PW.4 and got marked Ex.P.22 and 23 and closed his side.
13. On the other hand, the 2nd respondent examined its Administrative Officer as RW1 and not got marked any documents and closed its side.
SCCH-14 13 MVC No.5791/201614. With regard to the negligence part is concerned, the complaint marked at Ex.P.1 came to be lodged by one Thandava Char who is the relative of the petitioner stating that on the date of alleged accident, the complainant was proceeding on an another motor cycle driven by its rider by name Ramakrishna on NH-75 bypass road on Kunigal-Maddur road and when they reached near Kunigal-Chikkere Are at about 10.00 a.m., at that time, the petitioner along with two pillion rider were proceeding from Kunigal to Gavimutta at that time one Ape Auto bearing Reg. No.KA-06-D-0939 was coming from Gavimutta towards Kunigal, at that time the driver of the auto by over taking another vehicle, which was proceeding in front of him and came to the right side of the road and dashed to the petitioner's motor cycle. After the accident, the complainant and Ramakrishna stopped their motor cycle and went to the place of accident, wherein they saw that the auto driver was present there and petitioner and his friends were lying on the road and they sustained injuries, so he shifted them to the Government hospital and went to the Kunigal police station and lodged the complaint.
SCCH-14 14 MVC No.5791/201615. Besides, in the cross-examination of PW1 made by the learned advocate for the 2nd respondent, it is suggested that the accident has occurred in the middle of the road and it is also suggested that at the time of accident the petitioner was riding his motor cycle in a rash and negligent manner and the accident has occurred due to his negligence, for that he denied. It is also suggested that the accident has occurred due to the rash and negligent driving of the auto driver, for that he denied.
16. Apart from this, the petitioner has produced panchanama marked at Ex.P.2. As per this document, at the place of accident, the road is running from the north- south direction and the Kunigal was situated on the northern side and Huliyurdurga is situated on southern side and width of the road is 24 feet, the petitioner was proceeding from Kunigal to Gavimutta and the offending vehicle driver was moving from Gavimutta to Kunigal. By looking to the panchanama marked at Ex.P.2 there is a sufficient space for the auto driver to move his vehicle on his left side i.e. on the western side of the road. According to the complainant and the petitioner, the auto SCCH-14 15 MVC No.5791/2016 driver in order to over take another vehicle which was proceeding in front of him, and came on the right side and dashed to the petitioner's motor cycle. The police after the investigation, have filed the charge sheet contending the same facts and against the auto driver. The IMV report shows that the vehicles were damaged on their front side.
17. Further the learned advocate for the 2nd respondent has submitted that as the petitioner was riding the motor cycle along with two pillion riders, he himself caused the accident and some part of the contributory negligent has to be fastened on the petitioner also. As per the charge sheet marked at Ex.P.5 and the evidence of the petitioner, he has admitted that on the date of alleged accident he was riding the motor cycle along with two pillion riders and both of them aged 20 years. The learned advocate for the 2nd respondent has also relied upon the two rulings reported in, 2004 ACJ 1827 of Hon'ble High Court of Madras (Managing Director, Tamilnadu State Transport Corporation V/S Abdul Salam & Ors) and 2005 ACJ 1359 of our own Hon'ble High Court of Karnataka (P.S.Somaiah & Anr. V/S Director of Bengaluru Dairy & ors). In these rulings SCCH-14 16 MVC No.5791/2016 it is observed that, " The motor cycle or any other two wheelers are meant only for two persons i.e. rider and pillion rider, if more than two persons are traveling on the motor cycle or on any other two wheeler undoubtedly such action of individual would become illegal and unauthorized."
18. In this case also, the petitioner was moving on the motor cycle along with two pillion riders aged 20 years and also as the panchanama reveals that the accident has occurred on the eastern side of the road, so it appears that the driver of the Ape auto came on the right side of the road and dashed against the petitioner's motor cycle.
19. So, looking to facts and circumstances of the case, the petitioner has also contributed for the cause of accident at 30% and driver of the offending Ape auto has also contributed for the cause of accident at 70%.
20. Further in this case, in order to prove that the offending Ape was not at all involved in the accident and the due to the sole negligence of the petitioner the accident has occurred, the respondent has not examined SCCH-14 17 MVC No.5791/2016 the driver of the offending Ape auto driver or its official witness to substantiate the same and also there is no rebuttal evidence to disbelieve the contents of panchanama.
21. Apart from this the 2nd respondent examined its Administrative Officer as RW1, who has reiterated the contents of written statement and specifically has contended that the driver of the offending Ape auto driven the same beyond permitted area i.e. more than five kilo meters of Kunigal TMC area/radius which amounts to fundamental violation of the terms and conditions of the permit. Whereas by perusing the cross- examination of RW1, he admitted that has not produced permit on this aspect, at that the permit was shown him and in the said permit it is mentioned that the auto driver was having valid permit to drive his auto within 5 kilo meters and RW1 admitted that the accident has occurred within Kunigal-maddur main road, Kunigal Town, Chikkere. He further admitted that the accident spot is situated 1 kilo meter distance from the concerned police station and also he admitted that even though the Kunigal TMC is situated within 1 kilo meter from the SCCH-14 18 MVC No.5791/2016 accident spot, to exonerate from the liability, they contending that the driver of the offending ape auto was not possessing valid permit, for that he denied. So, the evidence of RW1 is not helpful to the case of the 2nd respondent and on the other hand, the driver of the offending vehicle was having valid permit to drive the same at the place of alleged accident.
22. Apart from this, on perusal of Ex.P.1, it discloses that on the basis of the complaint produced along with ExP.1 lodged by the relative of petitioner by name Thandava Char, the Kunigal Police have registered the case in their Crime No.113/2015 for the offence under Sec.279 and 337 IPC, whereas later on after conducting panchanama and IMV report and also completion of investigation, the concerned police have filed the charge sheet marked at Ex.P.5 against the driver by name Kumar. B of the offending Ape auto for the offences punishable under Sec.279, 337 & 338 of IPC. Filing of charge sheet in this case is prima facie evidence that the accident has occurred due to the negligence of offending vehicle driver. Even the IMV report marked at Ex.P.3 shows that there are no mechanical defects found in both the vehicles involved in the alleged accident.
SCCH-14 19 MVC No.5791/201623. Besides, the petitioner to prove that the due to the accident he sustained grievous injuries, he has produced the wound certificate marked at Ex.P.6, wherein it is mentioned the alleged history of RTA and it also shows that petitioner has sustained injuries i.e., Open type III B, fracture shaft right femur + open type I fracture both bones right leg and said injuries are grievous in nature.
24. As I have already discussed that the petitioner has also contributed for the cause of alleged accident. Hence, I am of the opinion that, the contributory negligence is fixed on the part of petitioner at 30% and 70% of contributory negligence on the part of driver of Ape Auto bearing Reg. No.KA-06-D-0939. Hence, I answer Issue No.1 Partly in the Affirmative.
25. Issue No.2: This issue relates to the quantum of compensation to be paid to the petitioner and liability of the same.
So far as age of the petitioner is concerned, the petitioner deposed that he was aged about 22 years at the time of accident. To substantiate the same, the SCCH-14 20 MVC No.5791/2016 petitioner has produced copy of driving licence marked at Ex.P.11, wherein his date of birth is mentioned as 03-05- 1994. So, as on the date of accident, the petitioner is aged 22 years. The multiplier applicable for this age is
18.
26. So far as the income of petitioner is concerned, according to the PW-1, prior to the accident he was hale and healthy and he was working as a delivery boy at Sapna Book House, Gandhinagar, Bengaluru and earning Rs.8,400/- p.m. In support of his contention he has produced his Employer ID card, wherein his designation is mentioned as driver-TVS. The petitioner has also produced a pay slip marked at Ex.P.12. On perusal of the same, it was issued by Sapna Book House (P) Ltd. and this pay slip is for the month of March 2015 and the accident has occurred on 03-05-2015 and he was drawing net salary of Rs.16,935/- after deduction of 2,315/- towards PT and ESI out of total salary of Rs.19,250.36/- for the month of March 2015. In support of the same the petitioner has produced bank statement marked at Ex.P.13. In his petition he has pleaded that he is getting the salary of Rs.8,400/- p.m. and in his evidence also he deposed that he is getting the salary of SCCH-14 21 MVC No.5791/2016 Rs.8,400/-. No where he deposed that he is getting the salary as contended in the EX.P.12.
Apart from this, in his cross-examination he admitted that, as per Ex.P.12 he is getting the salary of Rs.8,000/- per month. As per EX.P.12 it is not mentioned in which year and in which month he joined to the service. In proof of the same he has not produced the attendance register, appointment letter, nor examined the author of the document. So, taking into consideration the age of petitioner this, Tribunal has assessed notional income of the petitioner at Rs.8,000/- p.m.
27. TOWARDS PAIN AND SUFFERINGS: It is the case of the petitioner that he was admitted as inpatient for a period of 20 months and totally 11 times, he admitted to the hospitals on various dates and under went several medical, clinical, radiological examinations, laboratory tests, x-ray were also taken, whereas by perusing the evidence of PW1, he has not mentioned in which hospital he was admitted as inpatient and from which period to which period he admitted to the hospitals. He has also not stated for which treatment he SCCH-14 22 MVC No.5791/2016 was admitted to the hospital for 11 times. The petitioner has produced the wound certificate issued by the Government hospital, Kunigal marked at Ex.P.6. As per this document, he brought to the said hospital on 16-04- 2015 and found that he has sustained injuries i.e. fracture right femur open type, 2nd B fracture shaft right femur + open type fracture to both bones of right leg and the injuries are grievous in nature.
28. Further the petitioner has produced the discharge summary marked at Ex.P.7, issued by ESIC Medical College, PGIMSR Model hospital, Rajajinagar, Bengaluru. As per this document he was admitted to the said hospital on 16-04-2015 and discharged on 04-07- 2015 i.e. he took inpatient for a period of 79 days. In the said hospital, he under went surgery of ORIF IMIL nail femur + wound debridement on 27-04-2015, ORIF external fixation to right tibia on 13-05-2015 and in sized drainage to right thigh on 08-06-2015 and at the time of discharge his conditions was stable.
29. According to the petitioner, as per the discharge summary produced at Sl.No.2, he again admitted to the above said hospital on 21-07-2015 and discharged on SCCH-14 23 MVC No.5791/2016 12-08-2015 i.e. he took 22 days inpatient treatment and he was diagnosed to be a case of infected non union fracture shaft femur, wound debridement was done and referred to M.S. Ramaiah hospital for Ilizarov fixation.
30. Further he has also produced discharge summary at Sl.No.3 of M.S. Ramaiah hospital, Bengaluru, which shows that he admitted on 12-08-2015 and discharged on 24-02-2016, however the date 24-02- 2016 is mentioned in the ball pen. During the course of treatment, it is mentioned that the patient was admitted for above complaints, relevant investigation done, patient planned for wound debridement and drain application for femur removal of DCP, sequestrictomy and corticotomy and IEF application on 14-09-2015, whereas no documents are produced to show that what treatment he has taken from 12-8-2015 to 14-09-2015. So, this period cannot be taken into consideration. Further as per Sl.No.3 the patient post operative period was uneventful, physiotherapy was started, patient's puss and culture sensitivity report was found to be positive for which he was started on CEBACEF 1 GM IV 1-0-1 and managed appropriately, wound debridement + AO Ex Fix SCCH-14 24 MVC No.5791/2016 application after removal of LRS for right tibia on 26-10- 2015, no post operative complications seen, the wound debridement + antibiotic beads removal from femur on 30-11-2015,patient withstood the procedure well, regular dressings were done. Thereafter, wound debridement + exfix removal on 03-02-2016, whereas from the period of 30-11-2015 to up to 03-02-2016, pertaining to this period no documents are produced, hence, this period cannot be considered. So, in all he admitted to the said hospital only for 46 days.
32. Further as per the discharge summary produced at Sl.No.4, again the petitioner admitted to the M.S. Ramaiah hospital on 03-05-2016 and discharged on 30-06-2016,wherein it is diagnosed that right femur mid shaft non union with bone gap, segment loss. During the course of treatment, bone gap segment loss was made and vascularized fibular graft application in the right femur non union site was done on 12-05-2016, post operative was uneventful, debridement of wound was done on 24-06-2016, the patient is haemodynamically stable, hence fit for discharge. The petitioner himself produced inpatient record of M.S. Ramaiah hospital SCCH-14 25 MVC No.5791/2016 marked as Ex.P.15 wherein it is mentioned that he admitted on 03-05-2016 and discharged on 12-05-2015, but not on 30-06-2016. In Ex.P.15, nothing has been mentioned about the wound debridement done 24-06- 2016. So, the petitioner admitted for only 03-05-2016 to 12-05-2016 i.e for 7 days.
33. According to the petitioner, as per the discharge summary produced at Sl.No.5, again he was admitted to same hospital on 30-06-2016 and discharged on 05-07-2016, whereas by perusing the serial numbers 4 & 5, they are one and the same and also the admission date and discharge date are mentioned by using the ink pen. So, in my opinion, the petitioner was not at all admitted to the said hospital on 30-06-2016 nor he discharged on 05-07-2016. Hence, this period is not taken in to consideration.
34. Further as per the discharge summary produced at the Sl.No.6, again the petitioner admitted to the same hospital on 05-07-2016 and discharged on 11- 07-2016, but it is not correct because, the petitioner has produced another discharge summary at Sl.No.7, which shows that he admitted on 09-08-2016 and discharged SCCH-14 26 MVC No.5791/2016 on 03-09-2016. Moreover, the details mentioned in procedure column in both discharge summaries at serial numbers 6 & 7 are one and the same. So, the petitioner was admitted on 09-08-2016, but not on 05-07-2016 as contended by him. Further the discharge summary produced at Sl.No.7 shows that, it is diagnosed with right femur non union with vascularized bone graft in situ with infected wound. During the course of treatment, it is mentioned that he under went surgery on 11-08-2016 an on 22-08-2016 post operative he had sokage in dressing for which C/S was done and he was started with meropenam injunction, now sokage has been decreased and he can be discharged. By looking to this document, he admitted on 09-08-2016 and discharged on 27-08- 2016, but not on 03-09-2016 as contended by the petitioner. So, only he admitted for 18 days.
35. Again the petitioner admitted to the M.S.Ramaiah hospital on 25-02-2016 and discharged on 22-05-2016 as per the discharge summary produced at Sl.No.8, but the date of discharge is mentioned in ball pen, but not computerized. By perusing the said document, it is clearly mentioned that during the course SCCH-14 27 MVC No.5791/2016 of treatment he under went wound debridement on 14- 03-2016 for right femur, patient was planned for surgery for right femur fracture non union with vascularized, fibular graft and allograft, but due to non availability of allograft, surgery was deferred until allograft is ready, patient readmitted on 02-05-2016 for surgery. So, the petitioner not admitted to the said hospital till 22-05- 2016. So, the petitioner admitted 25-02-2016 to 14-03- 2016 i.e. he took inpatient treatment only for 17 days.
36. Further on perusal of discharge summary produced at Sl.No.9, again the petitioner was admitted to the same hospital on 18-10-2016 and discharged on 31-01-2017. As per this document the 1st wound debridement was done on 21-12-2016. Nothing has been produced to show that what treatment he has taken treatment from 18-10-2016 to 21-12-2016, only on 21- 12-2016, first wound debridement was done. So, the period from 18-10-2016 to 20-12-2016 cannot be taken into consideration. So, he admitted only on 21-12-2016 i.e. only one day. It is also mentioned the 2nd wound debridement was done on 18-01-2017. So, in my opinion SCCH-14 28 MVC No.5791/2016 he admitted 18-01-2017 and discharged on 31-01-2017 i.e. only for 14 days.
37. Again the petitioner was admitted to ESI Medical College hospital on 31-01-2017 and discharged on 25-02-2017 as per the discharge summary produced at Sl.No.10, but inpatient bills are produced and only wound debridement, antibiotic semetic done. He admitted in this hospital for 25 days
38. Further as per the discharge summary marked at Ex.P.24, again he admitted to the same hospital on 13- 08-2017 and discharged on 24-08-2017 and as per this document, he under went surgery of sterline dressing was done and antibiotic given and this time he took inpatient treatment for a period of 12 days.
39. Again he was admitted in ESI Medical College hospital on 06-07-2017 and discharged on 11-08-2017. As per this document marked at Ex.P.25, debridement was done to infected site on 17-07-2017 and at the time of discharge, his condition was satisfactory. This time he admitted for 35 days.
SCCH-14 29 MVC No.5791/2016So, considering all the above said discharge summaries, the petitioner took in patient treatment in all for a period of 276 days.
40. Besides, in the cross-examination the PW1 has admitted that in ESI hospital he was admitted for four months and he was given free treatment in the said hospital. Further he took inpatient treatment in M.S. Ramaiah hospital for one year three months and wherein also he was given free treatment. So, considering the nature of injuries sustained by the petitioner and period of treatment taken by him as per the medical records, this Tribunal feels to award a sum of Rs.60,000/- under the head of Pain and sufferings.
41. Towards Attendant Charges, Nutritious Food & Transportation Charges:- Since the petitioner has taken inpatient treatment for a period of 276 days at both ESI hospital and M.S. Ramaiah hospital and during the said long period, the petitioner might have spent amount for nourishment, conveyance and attendant charges apart from incurring medical expenses and taken treatment at private hospital. There is no document regarding amount spent for nourishment, conveyance SCCH-14 30 MVC No.5791/2016 and attendant charges days, as such, he is entitled for a sum of Rs.40,000/- under this head.
42. TOWARDS MEDICAL EXPENSES: The petitioner has produced medical bills at Ex.P.8 to show that he has incurred total medical expenses of Rs.6,526/-. Further he has produced medical bills at Ex.P.26 and as per this document he has spent Rs.5,971/- towards medical expenses. On perusal of the same, they are pharmacy bills and medicines purchase bills. So, considering the nature of injuries and treatment taken by the petitioner, the petitioner might have spent medical expenses as per above said documents and admittedly, the petitioner took free treatment at both the above said hospitals. Hence, this Tribunal feels to award a sum of Rs.12,197/- which can be rounded off to Rs.12,200/- under the head medical expenses.
43. LOSS OF FUTURE EARNING CAPACITY DUE TO PERMANENT DISABILITY:-It is the contention of the petitioner that, due to the accidental injuries, he is permanently disabled and lost his earning capacity.
SCCH-14 31 MVC No.5791/2016To substantiate the same, he has examined Dr.S.A. Somashekara, Orthopaedic Surgeon at Bowring & Lady Curzon Hospital, Bengaluru, for assessment of disability as PW4. The PW4 doctor has reiterated the treatment taken by the petitioner immediately after the accident as per the said wound certificate and discharge summaries produced by the petitioner. PW4 further deposed that he recent examined the petitioner on 18-05-2017 as the petitioner was presented with complaint of pain and inability to walk without support, inability to sit, stand for a long time, inability to squat and sit cross legged and stiff knee right sided and on examination it is found that he walks with pain and limping using an elbow crutch knee brace and shoe raise, diffuse swelling and shortening of right lower limb is seen, surgical scars due to secondary healing are seen over right thigh knee and leg. He further deposed that as per the recent x-ray, there was mal united fracture shaft right femur with thinning of the shaft with Osteopaenia, united fracture right tibia osteopaenia and gap non union of right fibula with profound osteopaenia and assessed the total disability of right lower limb at 73% and 37% to the whole body disability.
SCCH-14 32 MVC No.5791/2016In the cross-examination PW4 admitted that he has not treated the personally. He further admitted that he had not personal knowledge about the treatment taken by the petitioner, but he came to know about the same from the medical documents like wound certificate, case sheet and discharge summaries of petitioner. He also admitted that the petitioner had sustained fractures to right thigh and to the leg. He also admitted the petitioner came to him only once and at that time he examined the petitioner and assessed the disability. He also admitted that he has not consulted the doctors of M.S.Ramaiah hospital and ESI hospital to take their advice in assessing the disability of the petitioner.
Further in the cross-examination, he admitted that the petitioner under went surgery for 2 to 3 times, but denied that the petitioner took conservative treatment he volunteers that there was only one surgery for fracture of both fibula and tibia. It is suggested that since the petitioner has not taken follow up treatment properly, he had difficulties, for that he denied. It is also suggested that the petitioner had no difficulties as mentioned in his affidavit, for that he denied. It is also suggested that the petitioner can walk without walker, for that he denied. It SCCH-14 33 MVC No.5791/2016 is also suggested that in his affidavit he mentioned that the petitioner is limping while walking and shortening of leg as well as scars, but these difficulties will be decreased if he take follow up treatment, for that he denied. He deposed that there is mal union of fracture of right thigh, he admitted that there is union tibia fracture, but its quality is low, but fracture of fibula is not united. He also admitted that he not prepared the clinical note at the time of assessment of disability. It is suggested that he has assessed the excess disability of mobility component, stability component and muscle power, for that he denied. He denied that there is 1/3rd whole body disability for particular limb disability. It is further suggested that after completion of follow up treatment the petitioner can continue his work, for that he denied. It is further suggested that he has assessed the disability of petitioner pre-maturely, for that he denied. To help the petitioner, he has assessed the disability on higher side, for that he denied.
Whereas, considering the nature of treatment taken by the petitioner and also admissions of PW4 in his cross-examination as well as petitioner was aged 21 SCCH-14 34 MVC No.5791/2016 years as on the date of accident. So, I am of the opinion that, the disability assessed by the PW4, doctor is on higher side. Hence, this Tribunal has assessed the disability of the petitioner at 24% to the whole body and it would meet the ends of justice. Therefore, for the above reasons and discussions, the loss of future earning capacity works as under;
Rs.8,000/- x 12 x 18 x 24% = Rs.4,14,720/-
The petitioner is entitled for compensation of Rs.4,14,720/- under the head of loss of future earning capacity due to permanent disability.
44. LOSS OF AMENITIES DUE TO PERMANENT DISABILITY:
In this case, the petitioner has sustained he has sustained injuries i.e. fracture right femur open type, 2nd B fracture shaft right femur + open type fracture to both bones of right leg and the injuries are grievous in nature. So, taking into consideration of nature injuries sustained by the petitioner and disability as assessed above, he is entitled for compensation of Rs.45,000/- under the head loss of amenities.SCCH-14 35 MVC No.5791/2016
45. LOSS OF INCOME DURING LAID UP PERIOD:
Prior to the accident, the petitioner was working as a delivery boy at Sapna Book House. Due to the accidental injuries he sustained he has sustained injuries i.e. fracture right femur open type, 2nd B fracture shaft right femur + open type fracture to both bones of right leg. On the other hand, in the cross-examination the PW1 has admitted that in ESI hospital as well as in M.S. Ramaiah hospital, he was given free treatment. Considering the nature of injuries and permanent disability suffered by the petitioner, the petitioner might have prevented from doing any work for a period of six months. Hence, the petitioner is entitled for a sum of Rs.48,000/- under the head loss of income during laid up period.
46. TOWARDS FUTURE MEDICAL EXPENSES:
So far this head is concerned, neither PW1 nor PW4 doctor deposed anything in this regard. Even on perusal of recent x-ray marked at Ex.P.22 dated 18-05-2017 produced by PW4, there were no implants in situ and also taking consideration period of treatment taken by SCCH-14 36 MVC No.5791/2016 the petitioner, the petitioner is not entitled for any compensation under this head.
So, the petitioner is not entitled for any compensation under other heads and he is entitled for total compensation under the following heads:
1. Pain and sufferings Rs. 60,000/-
2. Nourishment, conveyance Rs. 40,000/-
and attendant charges
3. Medical expenses Rs. 12,200/-
4. Loss of future earning Rs.4,14,720/-
capacity due to permanent disability
5. Loss of amenities Rs. 45,000/-
6. Loss of earnings during laid Rs. 48,000/-
up period
Total Rs.6,19,920/-
As discussed above, the petitioner has also
contributed his negligence at 30% for the cause of the accident. So, he is entitled only 70% compensation amount Rs.6,19,920/-. So, 70% of total compensation amount would be Rs.4,33,944/-, which can be rounded off to Rs.4,34,000/-
SCCH-14 37 MVC No.5791/201647. 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 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., Hence, I hold that the petitioner is entitled for interest @ 9% p.a., from the date of petition till the date of payment.
48. Liability: Admittedly the respondent No.1 is RC owner and respondent No.2 is the insurer of the Ape passenger auto bearing Reg. No.KA-06-D-0939. As discussed above, both petitioner and driver of offending vehicle have contributed for the cause of alleged accident. Consequently, I answer the issue as above. Admittedly, the policy was in force as on the date of accident. Even though the respondents have taken contention that, the driver of the offending vehicle was not possessed valid and effective driving license at the time of accident, to prove and substantiate the same the respondents have not led any evidence. Hence, the respondents No.1 and 2 are jointly and severally liable to pay compensation to the petitioner, whereas, the respondent No.2 being insurer is SCCH-14 38 MVC No.5791/2016 primarily responsible and liable to pay compensation to the petitioner. Accordingly, I answered Issue No.2 partly in the affirmative.
49. ISSUE No.3: In view of above discussions and findings, I proceed to pass the following:
ORDER The petition filed by the petitioner U/Sec.166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for a compensation of Rs.4,34,000/- with interest @ 9% per annum from the date of petition till its realization.
The respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner with interest. The respondent No.2 being insurer is liable to deposit the amount before Tribunal within two months from the date of this order.
After deposit, 40% shall be deposited in the name of the petitioner in any nationalized, SCCH-14 39 MVC No.5791/2016 scheduled or co-operative bank for a period of 3 years and remaining 60% balance amount with accrued interest shall be released in favour of the petitioner through account payee cheque with proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 9th day of April 2018.) (S.R.PARADESHI) XVI ADDL.JUDGE Court of Small Causes & MACT.,Bengaluru.
ANNEXURE WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PETITIONERS AND RESPONDENTS:
PW.1 Abhishek
PW.2 Mariyappa
PW.3 Kumar R
PW.4 Dr. S.A.Somashekara
SCCH-14 40 MVC No.5791/2016
Respondents:
RW1 R. Vijayalakshmi
Ex.P.1 Copy of FIR with complaint
Ex.P.2 Copy of Spot panchanama
Ex.P.3 Copy of IMV report
Ex.P.4 Copy of Statement of injured
Ex.P.5 Copy of Charge sheet
Ex.P.6 Copy of Wound certificate
Ex.P.7 Discharge summaries (10 in Nos.)
Ex.P.8 Medical bills (36 in Nos.)
Ex.P.9 X-ray (25 in Nos.) & CT Scan (3 in Nos.)
Ex.P10 Copy of Employer ID
Ex.P11 Copy of Driving licence
Ex.P12 Copy of Pay slip
Ex.P13 Bank statement
Ex.P14 Authorization letter
Ex.P15 IP case sheets(3 in Nos.)
Ex.P16 Outpatient records ( 3 in Nos.)
Ex.P17 Authorization letter
Ex.P18 to 20 Inpatient records
Ex.P21 X-ray (12 in Nos.)
Ex.P22 OPD record
Ex.P23 One x-ray
Ex.P24 Discharge summary
Ex.P25 Discharge summary
Ex.P26 Medical bills (15 in Nos.)
Respondent/s NIL
XVI ADDL.JUDGE
Court of Small Causes &
MACT.,Bengaluru.