Bangalore District Court
Sri Shivakumar vs Sri Shashikumar on 21 June, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl. Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 21st DAY OF JUNE 2016.
MVC.No.7806/2012
PETITIONER: Sri Shivakumar,
S/o Nyanappa,
Aged about 28 years,
R/o Abbenahalli Village,
Madivala Post,
Malur Taluk,
Kolar District.
(Sri T.V.Ramesh, Advocate)
Vs.
RESPONDENTS: 1. Sri Shashikumar,
S/o Siddalingappa,
Aged about 28 years,
R/o Abbenahalli Village,
Madivala Post,
Malur Taluk,
Kolar District.
(Sri B.M. Ramesh, Advocate)
2. The Shriram General
Insurance Company Limited,
No.5, 2nd Floor,
Monarch Chambers,
Infantry Road,
Bangalore-01.
(Sri Janardhan Reddy,
Advocate)
2 MVC.7806/2012
SCH-16
JUDGMENT
This claim petition is filed by the petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.20,00,000/-for the injuries sustained in a road traffic accident happened on 06-09-2012.
2. The case of the petitioners, as set-out in the petition is as follows:
On the above said date, the petitioner was proceeding to his village Abbenahalli from Malur as a pillion rider in a Bajaj Discover motor cycle bearing No.KA-08-Q-3483 which was ridden by one Basavarajaiah. When they reached near Vasu factory on Abbenahalli-Bhavanahalli road, Malur Taluk, the rider of the above said vehicle has rode the same in a rash and negligent manner and gone towards wrong side of the road and dashed to the right side electric pole. Due to the impact of the said accident, the petitioner knocked down and sustained grievous injuries.
3. It is submitted that, immediately after the accident, the petitioner was taken to Government Hospital, Malur, wherein first aid was given and referred to St. John's Medical College Hospital, wherein x-ray was taken and it was 3 MVC.7806/2012 SCH-16 confirmed that, the petitioner has sustained Type III B open fracture distal right femur with bone loss, fracture of both bones of right leg, fracture of inferior pubic rami, 3rd metacarpal and second metacarpal right fracture. The petitioner took treatment from 07-09-2012 to 28-11-2012. The petitioner underwent wound debridement with external fixator. The petitioner is still under treatment and permanently disabled.
4. It is further averment of the petitioner that, prior to the date of accident, he was mason/part time cook and earning Rs.10,000/- per month. The petitioner has completely became disabled and could not do his day to day activities. The petitioner so for spent Rs.4,50,000/- towards treatment, medicine and conveyance and requires further amount for future treatment. The respondent No.1 is the RC owner and respondent No.2 is the insurer of the above said motor cycle, are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition by awarding the compensation of Rs.20,00,000/-.
5. In response to the notice, the respondent No.2 appeared and filed objections to the main petition. The 4 MVC.7806/2012 SCH-16 respondent No.1 though appeared, but did not filed any objection.
6. The second respondent contended that, the petitioner is neither resident of Bangalore nor working in Bangalore. Hence, this Court has no jurisdiction to try the matter. The respondent No.2 admitted that, it had issued policy in favour of first respondent in respect of motor cycle bearing No.KA- 08-Q-3483 and their liability is subject to terms and conditions of the policy.
7. The respondent No.2 contended that, immediately after the accident, the owner has not intimated about the accident and jurisdictional police have not supplied necessary documents. Thereby, there is a violation of Section 134(C) and 158(6) of M.V. Act.
8. The respondent No.2 denied the involvement of the motor cycle bearing No.KA-08-Q-3483 and contended that, the above said vehicle is not at all involved in the accident and there is a delay of 4 days in lodging the complaint.
9. The respondent No.2 contended that, the accident was self accident of the petitioner are caused by some other reasons. The respondent No.2 further contended that, the 5 MVC.7806/2012 SCH-16 petitioner in collusion with the police have falsely implicated the above said two wheeler and accident is a self accident while petitioner was riding the motor cycle bearing No.KA-08- Q-3483. It is contended that, as per the RTA of St. John's Hospital, it was collusion between two wheeler and auto. It is also contended that, the petitioner was conscious and MLC reveals that one Shivu was riding the motor cycle. It is contended that, at the time of alleged accident autorickshaw was dashed to the petitioner vehicle which he was riding without driving licence. The respondent No.2 further contended that, as per the medical records of Government Hospital, Malur, it is history of RTA when petitioner has fall from bike at 9.45 p.m., at Harohalli cross, he was riding as a pillion on the bike of Basavarajaiah. It is contended that, the jurisdictional police have colluded with the petitioner and the above said motor cycle was falsely implicated. The respondent No.2 denied that, accident was due to rash and negligent riding of the rider of the motor cycle bearing No.KA-08-Q- 3483. The rider of the said vehicle had no driving licence at the time of accident. Hence, respondent No.2 is not liable to pay any compensation. The respondent No.2 contended that, 6 MVC.7806/2012 SCH-16 the complaint was lodged after lapse of 4 days without reasons. It is contended that, it is a case of self accident and it is not covered. It is also contended that, if really the alleged accident was caused due to the insured vehicle and when the petitioner was proceeding as a pillion rider, the rider of the motor cycle Basavarajaiah must have sustained grievous injuries, but as per MLC no such finding forthcoming. Hence, the petition is false. It is also contended that, the compensation claimed is exorbitant and baseless. The respondent No.2 denied the age, income and occupation and also the medical expenses incurred by the petitioner. Hence, on all these grounds, the respondent No.2 prayed to dismiss the petition with costs.
10. On the basis of the above pleadings, my predecessor in office has framed the following:
ISSUES
1. Whether the petitioner proves that he met with an RTA that occurred on 06-
09-2012 at about 8.30 a.m., Near Vasu Factory, Abbenahalli Bhavanahalli Road, Malur Taluk, Kolar District and the petitioner sustained injuries due to rash and negligent driving of Bajaj Discover M/c bearing NO.KA-08-Q-3483?
7 MVC.7806/2012
SCH-16
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
11. The petitioner examined himself as PW1 and got marked documents at Ex.P1 to Ex.P10. The doctor was examined as PW2 and got marked documents at Ex.P11 to Ex.P14. The official of respondent No.2 company was examined as RW1 and got marked at Ex.R1. The PSI of Nandi Police Station was examined as RW2.
12. I have heard the arguments and perused materials on record. The counsel for the respondent No.2 in support of his arguments relied upon the following rulings.
1. MFA 9053/2007 (MV) (Branch Manager, Oriental Insurance Co. Ltd., Vs. Smt. Kempamma and others)
2. 2006 (1) KCCR 290
3. 2012 (1) TAC 234 (SC) (National Insurance Co. Ltd., Vs. Sinitha and others)
4. ILR 2009 KAR 3562 (Veerappa and another Vs. Siddappa and another)
5. ILR 2009 KAR 2921 (Bajaj Allianz General Insurance Co. Ltd., Vs. B.C. Kumar and another) 8 MVC.7806/2012 SCH-16
6. ILR 2012 KAR 2689 (K.E. Basavarajappa Vs. H. Chandrappa and another)
7. AIR 2000 SC 1165 (United India Insurance Co. Ltd., Vs. Sanjay Singh and others)
13. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
14. It is the specific case of the petitioner that, on 06- 09-2012, when he was proceeding as a pillion rider in a Bajaj Discover motor cycle bearing No.KA-08-Q-3483, the rider by name Basavarajaiah rode the same in a rash and negligent manner with high speed and dashed against one electric pole by the side of the road. The respondent however contended that, there is a delay of 4 days in lodging the complaint and as per the medical records of Government Hospital, Malur, it is a history of RTA hit by auto riding two wheeler not wearing helmet. The respondent has seriously disputed the 9 MVC.7806/2012 SCH-16 involvement of the above said motor cycle bearing No.KA-08- Q-3483 in the accident. As per the contention of the respondent, the petitioner has sustained injuries in an accident with an auto.
15. The petitioner has reiterated the petition averments in his affidavit filed by way of examination-in-chief as PW1. He has deposed regarding the manner of accident, injuries sustained by him in the accident, treatment taken by him at Government Hospital, Malur, St. John's Medical College Hospital, Bangalore. He has also deposed regarding the surgeries, he underwent during the hospitalization. As per the case of the petitioner, he has sustained accidental injuries, due to carelessness, rash and negligent riding of the motor cycle by his friend Basavarajaiah.
16. Apart from the above said oral evidence, the petitioner has got marked documents such as FIR at Ex.P1, complaint at Ex.P2, charge sheet at Ex.P3, mahazar at Ex.P4, MLC extract at Ex.P5, wound certificate at Ex.P6, IMV report at Ex.P7, 2 discharge summaries at Ex.P8 and Ex.P9, 36 medical bills at Ex.P10. The doctor who treated the petitioner examined as PW2 and got marked the inpatient record at 10 MVC.7806/2012 SCH-16 Ex.P11 and Ex.P12, out patient record at Ex.P13, 25 x-rays at Ex.P14. The official of the respondent No.2 company examined as RW1 who has deposed in consonance with the defence taken in the objections. He has produced copy of policy at Ex.R1. The respondent No.2 insurance company has also summoned the Investigating Officer who was examined as RW2 in this case.
17. The learned counsel for the respondent No.2 submitted that, the petitioner was riding a motor cycle without driving licence at the time of accident, there is a delay of 4 days in lodging the complaint. Ex.R1 MLC extract reveals that, it is case of accident between auto and two wheeler. The charge sheet was filed on 19-02-2013, whereas the wound certificate was dated 22-02-2013. He argued that, after filing of the charge sheet, the wound certificate was obtained which is created one. He argued that, the evidence of RW1 and RW2 clearly reflects that, the above said vehicle was falsely implicated in order to claim compensation. The learned counsel has also argued that, as per the evidence of PW2 at St. Jon's Hospital, the petitioner himself has stated the history of RTA which is reflected in Ex.R1. Such being the 11 MVC.7806/2012 SCH-16 case, the petitioner has filed a false claim petition in order to claim only compensation.
18. Per contra, the learned counsel for the petitioner has submitted that, at the time of accident, the petitioner was pillion rider on the motor cycle. The MLC of St. John's Hospital though reveals that, it is a self accident, but as per Ex.P5 the MLC of Government Hospital, Malur reveals that, the petitioner has sustained injuries, when he was proceeding as a pillion rider on the motor cycle of one Basavarajaiah which is recorded at Ex.P5. He also argued that, as per Ex.P5 and Ex.P6 wound certificate and MLC extract, the petitioner has sustained injuries, when he was a pillion rider on the motor cycle of Basavarajaiah. It is also argued that, Ex.P11 which is case sheet does not bears the signature of the petitioner and it bears the signature of one Mr. Somashekar. Hence, Ex.P11 cannot be relied upon. The learned counsel has further submitted that, the PW1 was unconscious and first aid was given at Government Hospital, Maluar, as he has sustained 6 fractures. So, he was not in a position to give statement at the said hospital. He also argued that, under Section 154 of Criminal Procedure Code, FIR is the primary 12 MVC.7806/2012 SCH-16 document is an important document. PW1 was not recalled to put additional defence taken by the respondent No.2 company. He submitted that, the motor cycle was seized on the very same day and I.O., has not properly investigated the matter and because of his fault, the petitioner cannot be denied the compensation.
19. The Ex.P2 complaint was lodged by one Mr. Subramani on the information received from the eye witness by name Nayaz Pasha, son of Pyarusabi. Immediately after receiving of the information, the complainant rushed to the spot and saw that, the petitioner has sustained injuries and immediately he was taken to Government Hospital at Malur and for further treatment, he was taken to St. John's Hospital, Bangalore. The complaint reveals that, the accident was due to rash and negligent riding of the motor cycle by name one Mr. Basavarajaiah. As rightly contended by the learned counsel for the respondent, there is a delay of 4 days in lodging the complaint. The complaint was lodged on 10-09- 2012, whereas the accident as per the complaint took place on 06-09-2012. Therefore, there is a delay of 4 days in lodging the complaint. But, it is to be noted that, in the complaint 13 MVC.7806/2012 SCH-16 itself the complainant has stated that, as he was engaged in the treatment of the petitioner at Malur Government Hospital and also at St. John's Hospital, he could not lodge the complaint immediately on the date of accident. On the basis of the said complaint, FIR came to be lodged as per Ex.P1 against the rider of the above said motor cycle for the offences punishable under Section 279 and 338 of IPC by the Malur Police in their Crime No.212/2012. As per the Ex.P7, the vehicle was inspected and IMV report was prepared stating the damages sustained by the motor cycle in the accident. Ex.P5 which is extract of MLC of Malur Government Hospital reveals that, it is a history of RTA when the petitioner fallen from bike at about 9.45 p.m., at Harohalli Cross, when he was riding as a pillion on the bike of one Mr. Basavarajaiah. The wound certificate marked at Ex.P6 also states that, the petitioner at the time of accident was riding as a pillion and fall from the bike at about 9.45 p.m., near Harohalli Cross.
20. The RW1 has produced the MLC extract of St. John's Hospital marked at Ex.R1. It is contention that, as per Ex.R1 it is an accident between motor cycle and auto. As per 14 MVC.7806/2012 SCH-16 the defence of the respondent, the petitioner has sustained injuries in an accident between two wheeler and auto.
21. It is not disputed that, as per the records and also as per the evidence immediately after the accident, the petitioner was taken to Government Hospital, Malur, wherein he took first aid treatment. Ex.P5 is the MLC extract of Malur Government Hospital which is primary document came to be issued immediately after the accident by the doctors of Malur Government Hospital. As per Ex.P5, the petitioner has sustained injuries, when he was proceeding as a pillion rider on the bike of one Mr. Basavarajaiah. The wound certificate which is marked at Ex.P6 reveals that, the petitioner has sustained the injuries, when he was pillion rider on the bike. However, it is also to be noted that, as per Ex.R1 which is MLC extract of the St. John's Hospital reveals that, it is a case of accident between two wheeler and autorickshaw. Further, the case sheet marked at Ex.P11 reveals that, the petitioner has sustained injuries in a accident between the motor cycle and autorickshaw. It is to be noted that, the admission record Ex.P11 of St. John's Hospital reveals that, one Mr. Somashekar accompanied the petitioner in the said 15 MVC.7806/2012 SCH-16 hospital and he has signed to the admission card. The PW1 in his cross examination has stated that, he has not given his statement in the St. John's Hospital as to the history of RTA, but as per the evidence of PW2, the petitioner has given the statement at St. John's Hospital and he was conscious, when he was admitted to the said hospital. But the investigating officer has stated that, on 12-09-2012, he has recorded the statement of one Mr. Basavarajaiah, the rider of the motor cycle and on 12-10-2012, he has recorded the statement of the petitioner at St. John's Hospital. The evidence of RW1 reveals that, he has not enquired with the hospital authorities of St. John's Hospital as to the manner in which the accident took place. The learned counsel for the respondent No.2 argued that, the investigating officer after filing of the charge sheet has collected the wound certificate on 22-02-2013, whereas the charge sheet was filed on 19-02-2013. But in further cross examination by the learned counsel for the petitioner, the investigating officer has stated that, on 19-02- 2013 on which date, the charge sheet was prepared and the statement of the petitioner later on will be typed at station 16 MVC.7806/2012 SCH-16 and he has clarified that, there is no variation between complaint and medical records.
22. It is to be noted that, as per the evidence of RW2 vehicle was seized at the spot of the accident. The IMV report was reveals that, front portion of the motor cycle was damaged in the said accident.
23. Now, the question before the court is whose case to be believed. It is to be noted that, as per Ex.P5 MLC extract of Malur Government Hospital, immediately after the accident, the petitioner took first aid at the said hospital. Accordingly, the MLC extract as per Ex.P5 was issued by the Malur Government Hospital. Though, at St. John's Hospital, the petitioner taken further treatment, but Ex.P11 reveals that one Mr. Somashekar has signed to the document which reveals that, he accompanied to the petitioner with the St. John's Hospital. Though, as per the evidence of RW2, the petitioner was conscious and he has stated the history of RTA, but PW1 has clearly denied that, he has given any statement before the hospital authorities of St. John's Hospital. It is to be noted that, as per the wound certificate Ex.P6, the petitioner has sustained almost all 6 fractures and 17 MVC.7806/2012 SCH-16 as per the wound certificate, the petitioner was in a shock, when he was taken to Malur Government Hospital. Though, PW2 has stated that, the history of RTA was stated by the petitioner himself at St. John's Hospital, but Ex.P11 reveals that, one Mr. Somashekar has signed to the declaration forms. Therefore, it cannot be believed that, the petitioner has given the history of RTA at St. John's Hospital. It is to be noted that, the initial primary document is Ex.P5 which reveals that, the petitioner has sustained injuries, when he was proceeding as a pillion rider on the motor cycle of one Mr. Basavarajaiah. Though, the said Basavarajaiah was not examined before the court, but the Ex.P5 reveals that, the petitioner has sustained injuries, when he was proceeding as a pillion rider on the bike of said Basavarajaiah. Though, RW1 has stated that, as per the Ex.R1, it is a case of accident between motor cycle and auto, but he has failed to state the registration number of the auto which was alleged to have been involved in the accident. The insurance company normally investigate the every claim by its investigator. In this case also, the respondent insurance company has appointed the investigator, but it has not produced any documents 18 MVC.7806/2012 SCH-16 except Ex.R1 to show that, it was a case of accident between the motor cycle and autorickshaw. If at all the said autorickshaw was involved in the accident, the same should have reflected in the investigation report of the investigator appointed by the respondent insurance company, but no such document has been placed before the court. It is to be noted that, Ex.P5 wound certificate reveals that, the petitioner immediately after the accident has taken to the Malur Government Hospital and as per Ex.P5, he has sustained injuries, when he was proceeding as a pillion rider on the bike of one Mr. Basavarajaiah. The motor cycle was seized by the jurisdictional police and IMV report submitted and said motor cycle was damaged in the accident.
24. The learned counsel for the respondent No.2 has pressed into service unreported judgment in MFA 9053/2007 between Branch Manager, Oriental Insurance Company Limited Vs. Smt. Kempamma and others. I have carefully perused the entire judgment, in the said case as per the complaint itself the petitioner has sustained injuries, when his bike was skid and accordingly the Hon'ble High court dismissed the claim petition. But, in this case as per 19 MVC.7806/2012 SCH-16 the complaint averments also the petitioner has sustained injuries, when he was proceeding as a pillion rider on the motor cycle of one Basavarajaiah. The learned counsel for the respondent No.2 has pressed into service ruling reported in 2012 (1) T.A.C. 234 (S.C.) between National Insurance Company Limited Vs. Sunitha and others. I have carefully perused the entire facts of the case, the Hon'ble Apex Court by referring to the Section 140 and 163(A) of M.V. Act founded on the principle of fault liability and the insurer or owner can defeat a claim raised under Section 163(A) by pleading or establishing negligence on the part of the petitioner. There is no dispute with regard to the said position of law. But the present petition is filed under Section 166 of M.V. Act. Hence, the above said ruling cannot be made applicable to the facts of the case. The learned counsel also relied upon the ruling reported in ILR 2009 KAR 2921 in between Bajaj Allianz General Insurance Company Limited Vs. B.C. Kumar and another, wherein, Hon'ble High Court of Karnataka held that, the plea of guilt by the driver and his conviction in the Criminal Court is not conclusive proof of negligence and the Tribunal has to assess the 20 MVC.7806/2012 SCH-16 evidence before it independently of any finding of the Criminal Court on the question of the driver pleading guilty. There is no dispute with regard to the said position of law. The learned counsel has also pressed into service ruling reported in ILR 2012 KAR 2689 between K.E. Basavarajappa Vs. H. Chandrappa and another, wherein Hon'ble High Court of Karnataka held that, when there is a materials contradictions in the documents examination of independent witness is essential to prove the involvement of the vehicle. I have carefully perused the above said facts of the case. In the said case, the earliest information of the accident was stated as an accident due to the use of the vehicle bearing No.KA-16/J- 8788, whereas in the delayed complaint which was filed after 4 days, the vehicle was referred bearing No.KA-16/R-7185 and there was no explanation with regard to the said difference in the registration number of the vehicle. The Hon'ble High Court dismissed the claim petition. But in this case, as per Ex.P5 and Ex.P6, the petitioner has sustained injuries, when he was proceeding as a pillion rider on the bike of Basavarajaiah. Such being the case, when Ex.P5 and Ex.P6 in which together makes it very clear that, the petitioner has 21 MVC.7806/2012 SCH-16 sustained the injuries, when he was proceeding as a pillion rider. No much reliance can be placed on Ex.R1 which is MLC MLC extract of St. John's Hospital. When already MLC extract of Malaur Government Hospital is registered, for the best reasons known to the authorities of St. John's Hospital, how they have register the MLC as per Ex.R1 is not clarified by the counsel for the respondent No.2. It is to be noted that, immediately after the accident, the petitioner was taken to Malur Government Hospital and accordingly they have issued MLC extract as per Ex.P5. It is the procedure known to law though MLC will be issued by the hospital to which usually the injured will be taken at first instant. In this case, it is not disputed that, immediately after the accident, the petitioner was taken to Government Hospital, Malur which had issued a MLC extract as per Ex.P5. Hence, even though the respondent No.2 had produced the MLC extract of St. John's Hospital as per Ex.R1 no much weightage can be given to the said MLC extract for the reasons stated above. The learned counsel for the respondent No.2 has also relied upon the ruling reported in AIR 2000 SC 1165 between United India Insurance Company Limited Vs. Rajendra Singh and others, wherein, 22 MVC.7806/2012 SCH-16 the Hon'ble Apex Court held that, the Tribunal has got a power to recall the order passed which is obtained by practicing fraud. There is no dispute with regard to the said position of law, but same cannot be applicable to the case on hand. Though, it is to be noted that, the wound certificate Ex.P6 was obtained on 22-02-2013 after preparing the charge sheet it cannot be come to the conclusion that, the said wound certificate is concocted one. It is to be noted that, one Mr. Somashekar has brought the petitioner to the St. John's Medical College Hospital at about 4.30 a.m., on 07-09-2012 which could be seen from the admission record of the St. John's Medical College Hospital, Bangalore. The petitioner was brought with injury to his right chest, right leg, shoulder etc. If at all, as per Ex.R1, the petitioner was conscious, he ought to have signed to the admission record Ex.P11. But in this case, the petitioner was taken to the St. John's Medical College Hospital by Somashekar. It is also to be noted that, the official of the respondent No.2 company has not issued notice to the respondent No.1 seeking for necessary particular documents. If at all the above said motor cycle was not involved in the accident, the owner ought to have replied to 23 MVC.7806/2012 SCH-16 the notice of the respondent No.2 stating that, the said vehicle was not at all involved in the accident. The petitioner by placing the police records has proved that, he has sustained injuries, when he was proceeding as a pillion rider of motor cycle bearing No.KA-08-Q-3483. The petitioner has discharged his burden by placing the police records and it is for the respondents to disprove the case of the petitioner. Except Ex.R1, the respondent No.2 company has not at all produced any documents. As already I have discussed Ex.P5 and Ex.P6 are primary documents which came in existence immediately after taking treatment by the petitioner at Malur Government Hospital. Hence, reliance has to be placed on Ex.P5 and Ex.P6. If at all as alleged by the respondent No.2, the accident was between motor cycle and the autorickshaw, the same should have been reflected in the investigation report conducted by its investigator. But, no such report is forthcoming before the court. The respondent No.2 company has not made efforts by issuing notice to the respondent No.1 to asertain, whether motor cycle was involved or not in the alleged accident. If at all it was a case of accident between the motor cycle and the autorickshaw, the investigation report 24 MVC.7806/2012 SCH-16 should have reflected the same. But, except Ex.R1 there are no documents to show that, the alleged accident was between the motor cycle and the autorickshaw. Hence, viewed from any angle, the case of the respondent No.2 cannot be believed. Therefore, I answer this issue No.1 in the affirmative, holding that the petitioner has proved that, he has sustained injuries by the rash and negligent riding of the rider of the motor cycle bearing No.KA-08-Q-3483.
ISSUE No.2:
25. This issue is in respect of quantum of compensation to be awarded to the petitioner and the liability to pay the same.
26. The wound certificate of the petitioner marked at Ex.P6 reveals that, the petitioner has sustained Type III open fracture of distal femur with bone loss, both bones fracture of right leg, fracture of public ramus left, fracture of phalengeal right, fracture of right II metacarpal, fracture of right III metacarpal and in the opinion of the doctor, the above said injuries are grievous in nature. Ex.P8 is the discharge summary of St. John's Medical College Hospital reveals and confirms that, the petitioner has sustained the above said 25 MVC.7806/2012 SCH-16 injuries. Ex.P11 also confirms the above said injuries. Further Ex.P11 reveals that, the petitioner has undergone surgery for the above said injuries. Hence, looking to the above said injuries a sum of Rs.1,00,000/- is awarded under the head pain and sufferings.
27. The discharge summary of St. John's Medical College Hospital reveals that, the petitioner was an inpatient from 07-09-2012 to 28-11-2012 and from 15-08-2013 to 19-
08-2013. The petitioner was an inpatient for almost 85 days. During the said period, the petitioner has to spent considerable amount on his conveyance, attendant charges and nutritious food. Considering the fact that, the petitioner was an inpatient for a period of 85 days in the hospital, a sum of Rs.75,000/- is awarded under the head attendant charges, extra nutritious food and including conveyance charges.
28. The petitioner has produced medical bills and prescriptions as per Ex.P10. The total medical bills are Rs.1,85,000/-. I have carefully perused all the medical bills and prescriptions. The medical bills are in accordance with 26 MVC.7806/2012 SCH-16 prescriptions. The respondent No.2 has not seriously disputed these medical bills and prescriptions. Hence, the petitioner is entitled for medical expenses of Rs.1,85,000/-.
29. The petitioner has stated that, he is part time cook and mason by profession and earning Rs.10,000/- per month. He has not produced any documents in support to prove that, he is a part time cook and mason by profession and earning Rs.10,000/- per month. The medical records reveals that, the petitioner was aged about 28 years as on the date of accident. The accident took place on 06-09-2012. Hence, in the absence of any materials as to the income and avocation of the petitioner, the court has to do some guess work in respect of his income. Considering the age and also the year in which the accident took place, the notional income of the petitioner is taken at Rs.7,000/- per month. The petitioner has sustained 6 fractures, it may take 9 months for the petitioner to recover from the above said injuries. During the said period of 9 months, the petitioner has to take rest and has to loose his income. Hence, a sum of Rs.63,000/- is 27 MVC.7806/2012 SCH-16 awarded under the head loss of income during the laid up period.
30. The petitioner has examined the doctor as PW2, who has stated that, the petitioner has sustained fracture of distal right femur with bone loss, right tibia fracture, right fibula fracture, left inferior pubic ramus fracture, right distal phalanx fracture of 2nd finger, right 2nd and 3rd metacarpal fracture. In the opinion of the PW2, the whole body disability of right lower limb is 46.64% and disability to the whole body is at 23%. He has produced the inpatient and outpatient record and 25 x-rays which are marked at Ex.P11 to Ex.P14. In his cross examination PW2 has stated that, the fractures are mal united, as the petitioner has sustained communited and open fracture with bone loss there is a mal union. The PW2 has admitted that, when the petitioner was discharged, his condition was stable and petitioner was advised with the physiotherapy. The PW2 has admitted that, if physiotherapy is regularly done, the disability may come down. It is suggest to PW2 that, the whole body disability should be 1/3rd of particular limb which is denied. It is to be noted that, as per PW2, the disability of particular right lower limb is 46.64%, 28 MVC.7806/2012 SCH-16 whereas the disability to the whole body is 23%. As per the Central Government Notification, the whole body disability should be 1/3rd of the particular limb. Therefore, the whole body disability assessed by the PW2 is not in accordance with the said Central Government Notification. Hence, this Tribunal is of the opinion that, the petitioner has sustained whole body disability at 15%. The notional income of the petitioner is arrived at Rs.7,000/- per month. The petitioner as on the date of accident, as per medical records is aged about 28 years and his total whole body disability is taken at 15%. The proper multiplier applicable to the age of 28 years is
17. Due to 15% disability, annual loss of income would be Rs.7,000x15%=1,050x12=12,600/-p.a. If Rs.12,600/- is multiplied by 17, it would be Rs.2,14,200/- Hence, I hold that the petitioner is entitled for the compensation of Rs.2,14,200/- under the head loss of future income due to permanent disability.
31. The petitioner was aged about 28 years as on the date of accident and he has sustained as many as 6 fractures in the accident. He cannot enjoy the life prior to the accident and he might have suffered lot of pain, loss of amenities and 29 MVC.7806/2012 SCH-16 comforts in life. Therefore, considering the age, nature of injuries sustained by the petitioner and percentage of disability, this tribunal is of the opinion, that the petitioner is entitled for the compensation of Rs.30,000/- towards loss of amenities and future happiness.
32. The PW2 has stated that, the petitioner has to undergo surgery for arthrolysis of right knee to achieve improve the range of movements which may cost of Rs.30,000/-. No estimation has been produced before the court to support the said cost. But, however it is to be noted that, the implants of the petitioner are in situ and he has to undergo surgery for removal of the said implants. Considering the fractures of the petitioner a sum of Rs.20,000/- is awarded under head future medical expenses.
33. There are no grounds to award compensation under any other heads. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs.1,00,000-00 2 Attendant charges, extra Rs. 75,000-00 nutritious food and conveyance expenses 3 Medical expenses Rs. 1,85,000-00 30 MVC.7806/2012 SCH-16 4 Loss of income during laid Rs. 63,000-00 of period
5. Loss of future income due to Rs. 2,14,200-00 permanent disability
6. Loss of future amenities and Rs. 30,000-00 happiness
7. Future medical expenses Rs. 20,000-00 Total Rs. 6,87,200-00 In total, the petitioner is entitled for the compensation of Rs.6,87,200/-.
Interest:
34. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 :
(AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the 31 MVC.7806/2012 SCH-16 compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioners are entitled to interest at the rate of 9% p.a. Liability:
35. The respondent No.2 in its written statement has admitted that, the policy was in force as on the date of accident. Therefore, the respondents are jointly and severally liable to pay compensation to petitioner with interest at 9% p.a. However, primary liability is fixed on respondent No.2 who is the insurer of the motor cycle bearing No.KA-08-Q- 3483. Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.5:-
36. In view of my above findings, the petition deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner is allowed in part. 32 MVC.7806/2012
SCH-16 The petitioner is entitled for compensation of Rs.6,87,200/- (Rupees six lakhs eighty seven thousand and two hundred only) with interest at the rate of 9% per annum (excluding future medical expenses of Rs.20,000/-) from the date of petition till realisation.
The respondents Nos.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 -Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Out of the said compensation amount awarded, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner as FD in any nationalized bank for a period of three years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate interest shall be released to the petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. 33 MVC.7806/2012
SCH-16 Draw an award accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court this the 21st day of June 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE List of the witnesses examined on behalf of Petitioner:
PW1 Sri Shivakumar PW2 Dr. Mhadev Kumar P.
List of the documents exhibited on behalf of Petitioner:
Ex.P1 True copy of FIR
Ex.P2 True copy of Statement
Ex.P3 True copy of Charge Sheet
Ex.P4 True copy of Mahazar
Ex.P5 True copy of MLC Extract
Ex.P6 True copy of Wound Certificate
Ex.P7 True copy of IMV Report
Ex.P8 & Discharge summary
Ex.P9
Ex.P10 36 Medical bills
Ex.P11 & Inpatient record
Ex.P12
Ex.P13 Outpatient record
Ex.P14 25 X-rays
34 MVC.7806/2012
SCH-16
List of the witnesses examined on behalf of Respondents:
RW1 Sri Shivananda R.S. RW2 Sri Shivaswamy C.B.
List of the documents marked on behalf of Respondents:
Ex.R1 True copy of MLC extract
Ex.R2 Policy copy
(SATISH.J.BALI)
MEMBER:MACT, BENGALURU .