Bangalore District Court
Mast. R.N.Nithin Vasista vs Umesh D on 17 October, 2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 17th DAY OF OCTOBER 2015
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 3733/2014
Petitioners: Mast. R.N.Nithin Vasista,
S/o. Narahari S.R.,
Aged about 08 years,
R/at No.26/1, 9th cross,
Behind:Muneshwara Temple
Tygarajnagar, Bangalore-28
Previously R/at No.110, 5th Main,
Behind:Vidyapeeta
Gururaja Layout,
BSK III stage
Tygarajnagar, Bngalore-28
( Since, petitioner being minor
Rep.by his father/Natural guardian,
Narahari.S.R,
(By Sri. B.S.Manjunath, Advocate)
- V/s -
Respondents: 1.Umesh D.
S/o.Doddaiah
R/at Kariyappanadoddi
Bidadi Hobli & Post
Ramanagar Taluk and District
(RC owner of Tipper lorry
No.KA.l42/A-2378)
(By Sri. Exparte
2 SCCH-1
MVC .3733/2014
2. United India Insurance Co.Ltd.,
Motor dealer division
6th Floor, Krishi Bhavan
Hudson Circle, Bangalore-01
(Insurer Tipper lorry bearing No.
KA-42/A-2378-7335)
JUDGMENT
The guardian of the minor petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.8,00,000/- for the injuries sustained by the minor petitioner in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the guardian of the minor petitioner that on 15-8-2014 at about 1.22 p.m., the minor petitioner was going on Motor cycle bearing Reg. No.KA-
05/EG/1676 as pillion rider along with his parents from their residence towards R.R.Nagar via Uttarahalli Kengeri Main Road and when they reached near Arehalli Arch, at that time, driver Tipper lorry bearing No.KA/42/A.2378 came from behind in high speed, in a rash and negligent manner and dashed against the motor cycle. As a result of which, the
3 SCCH-1 MVC .3733/2014 minor petitioner sustained facture of both bones of right leg. The minor petitioner immediately shifted to the D.G.hospital, wherein, he took first aid treatment and thereafter, he was shifted to Mallya hospital, wherein, he was treated as an inpatient. X-ray was taken and confirmed the facture and he was subjected to surgery and K-wire was fixed below knee and POP slab applied. He was discharged on 16-8-2014.
3. It is the contention of minor petitioner that, due to the accidental injuries, the claimant had incurred huge medical expanses, conveyance, nourishment and attendant charges. He could not attend the school for some time, his educational career has been affected, he undergone mental shock, pain and sufferings and he is permanently disabled.
4. It is the contention of the petitioner that, the police have registered a case against driver of lorry. After investigation, the police have filed charge sheet for the offence punishable under Sec.279 and 338 of IPC. The 1st respondent being owner of Tipper lorry and the 2nd respondent being 4 SCCH-1 MVC .3733/2014 insurer are jointly and severally liable to pay compensation of Rs.8,00,000/- to the petitioner.
5. In pursuance of filing of this petition, this Court has issued notice against both the respondents. The 1st respondent remained absent hence he was placed exparte. Respondent No.2 has appeared before the Tribunal through their counsel and filed their written statement.
6. Respondent No.2 in its written statement has contended that, the very petition itself is not maintainable as the petitioner filed this petition against this respondent is false, fictitious and concocted grounds by suppressing the material facts.
7. The 2nd respondent has also contended that the petition is bad for non joinder of necessary parties as the owner and insurer of motor cycle are not made as parties to the present petition and hence, petition is not maintainable.
8. The 2nd respondent denies that the petitioner is aged about 8years and he is studying in II standard. This respondent is not aware that the claimant is the father of the 5 SCCH-1 MVC .3733/2014 minor petitioner and denies the amount spent by his natural guardian towards medical expenses and other expenses.
9. The 2nd respondent also denies the very accident, without investigating the case, they have registered a false case in collusions with the police in order to make wrongful gain. This respondent also denied the nature of injuries sustained by the minor petitioner and caused of permanent disability to the petitioner.
10. The 2nd respondent admits the issuance of policy in favour of the 1st respondent in respect of Tipper lorry and its liability, if any, will be subjected to the terms and conditions of the policy.
11. It is further contended that, the driver of lorry did not possess valid and effective DL to drove the same at the time of accident and this respondent has not informed about the alleged accident and not submitted claim form and documents like RC, permit fitness certificate etc for verification under the terms and conditions of the policy.
12. The respondent No.2 has further contended that the 1st respondent has not complied Sec.158(6) of MV Act. 6 SCCH-1 MVC .3733/2014 2nd respondent also contended that driver of the Tipper lorry is not responsible and the said vehicle has not colluded in the alleged accident and the vehicle has been falsely implicated.
13. The 2nd respondent has also contended that the petitioner has to prove that the injured was taken to DG hospital, thereafter to Mallya hospital and there he was subjected to surgery. The petitioner has spent huge amount towards medical treatment of the petitioner. It is also contended that the compensation claimed in the petitioner is excessive and exorbitant. Hence this Respondent is not liable to pay any compensation. Hence, prayed to dismiss the petition.
14. Based on the pleadings this Court has framed the following:-
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that occurred on 15-8-2014 at about 1.22 p.m. on Uttarahalli, Kengeri Main road, Near Arehalli Arch, Bangalore, within the jurisdiction of K.S.Layout Traffic Police station on account of rash and negligent riding of the Motor cycle bearing registration No. KA-42/A-2378 by its driver? 7 SCCH-1 MVC .3733/2014
2. Whether the respondent No.l2 proves that the accident occurred on account of negligence act of petitioner himself ?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4.What order?
15. In order to prove the case, the natural guardian of the minor petitioner is examined as PW.1 and got marked documents Ex.P1 to 14. He also examined two witnesses as PW.2 and 3. Through PW-2 got marked document at Ex.P.15 and through PW-3 got marked Exs.P.16 to P.18. On the other hand, the 2nd respondent its officer as RW-1 and got marked Ex.R.1 and R.2.
16. I have heard the arguments of Petitioner's counsel and Respondent's counsel.
17. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the Negative
8 SCCH-1
MVC .3733/2014
3) Issue No.3 ... Partly in the Affirmative,
3) Issue No.3 ... As per final order
for the following:-
REASONS
18. Issue No.1 and 2: These two issues are inter- connected to each other and they are taken up together for discussion in order to avoid repetition.
It is the contention of the guardian of the minor Petitioner that, on 15-8-2014 at about 1.22 p.m., the minor petitioner was going on Motor cycle bearing Reg. No.KA- 05/EG/1676 as pillion rider along with his parents from their residence towards R.R.Nagar via Uttarahalli Kengeri Main Road and when they reached near Arehalli Arch, at that time, driver Tipper lorry bearing No.KA/42/A.2378 came from behind in high speed, in a rash and negligent manner and dashed against the motor cycle of the petitioner. As a result of which, the minor petitioner sustained facture of both bones of right leg. It is the contention of the petitioner that, the accident was sole negligence on the part of the driver of the Tipper lorry. On the other hand, the respondent No.2 in 9 SCCH-1 MVC .3733/2014 their objections statement has contended that the accident was occurred on account of negligence of the petitioner's father.
19. In order to prove the case of the minor petitioner, the guardian of the minor petitioner is examined as PW-1 and in his affidavit, he has reiterated the averments of the petition. Apart from his oral evidence, he has relied upon FIR, letter given by the petitioner, sketch, Mahazar, 2-IMV reports and charge sheet as Ex.P.1 to 6 and P.8 . PW-1 was subjected to the cross-examination. In the cross-examination, it is elicited that he himself, his wife and his son were going in the motor cycle and the motor cycle belongs to him. The Tipper lorry came from the same direction. The width of the road may be around 80 feet and there were 5 to 6 vehicles. PW-1 further stated that there was a hump and the lorry hit back side of his vehicle. His son has sustained the fractures. Both himself and his wife did not suffer any grievous injuries. PW-1 also admits that he did not inform the police immediately. It is suggested that 10 SCCH-1 MVC .3733/2014 was not having Driving License and the said suggestion was denied. He admits that he has not produced Driving License before this Tribunal. It is suggested that, the accident was occurred due to his negligence and his son fell down from the motorcycle and the tipper lorry not hit his vehicle from rear side and the said suggestion was denied. He admits that he had lodged the complaint after 6days. He also admits that in Ex.P.5, the number of vehicle is mentioned. He further admits that the offending vehicle was subjected to inspection on 30-8- 2014 and there is no damages to tipper lorry. It is suggested that in collusion with the police and the owner of the offending vehicle was falsely implicated in this case.
20. PW-2 is the Anesthetist. In his evidence, he says that the injured came to their hospital with the road traffic accident by a truck. In the cross-examination, he admits that, even if any MLC is registered in any other hospital also they do their own MLC in their hospital. 11 SCCH-1 MVC .3733/2014
21. The respondent No.2 examined its Officer as RW-1 and in his affidavit, he has reiterated the averments of the objections statement by contending that the father of petitioner has lodged complaint before the Kumaraswamy Layout traffic police and there was delay of 6days in lodging the complaint. The petitioner has not produced the MLC register of the DG hospital and they have produced the same as Ex.R.2. It is contended that the police have filed a false charge sheet against the driver of Tipper lorry. It is contended that the father of the petitioner himself was riding the motor cycle along with two pillion riders i.e, the petitioner and his mother and the rider of the motor cycle was not having valid DL and he cannot carry more than two persons in the motor cycle. The tipper lorry was not involved in the accident and the accident was not due the negligence on the part of the driver of the Tipper lorry.
22. RW-1 was subjected to the cross-examination. In the cross-examination, he admits that the petitioner is a minor and he was under treatment at DG hospital and Mallya 12 SCCH-1 MVC .3733/2014 hospital . He was subjected to surgery, hence there was a delay in lodging the complaint. RW-1 stated that he does not know about any promise made by the owner and driver of the vehicle to settle the matter. RW-1 denies that the hospital authority has given the intimation to police on the same day and they have not taken any action when they came to know about a false charge sheet has been filed against the driver. He further states that he does not know about the Tipper lorry dashed against rear portion of the motorcycle near the Arehalli Arch in Uttarahalli main road. It is suggested that, he is falsely deposing before the court that there is violation of terms and conditions and no intimation was given and in ordered to absolve their liability and the said suggestion was denied.
23. The petitioner's counsel in his arguments has vehemently contended that the father of the petitioner was riding the motor cycle and the petitioner has sustained facture of both bones of right leg and he was subjected to surgery. The delay on account of owner of Tipper lorry was assured to bear the medical expenses and hospital authorities have sent the MLC on the same date itself. The lorry hit the motor cycle from behind. Hence, the question of negligence of 13 SCCH-1 MVC .3733/2014 the rider of the motor cycle does not arise. On the other hand, the learned counsel appearing for the 2nd respondent has filed written arguments. In their written arguments, they have contended that the 1st of all, offending vehicle was not at all involved in the accident and there was delay for a period of 7days in lodging the complaint. The answers' elicited from the mouth of witness is clear that it is a false implication of the lorry and there were no visible damages. It is the contention of the petitioner that the Tipper lorry came from behind and hit the motor cycle and there was no damages to the lorry as per IMV report and hence, it is clear collusion of the case.
24. The 2nd respondent's counsel in support of their contention, has relied on the judgment reported in 2004(1) KAR.L.J 498 (DB) (P.S.Somaiah and another vs Director, Bangalore Dairy and others ) The division bench has held in this judgment that "...carrying more than one person, regardless of age of person, in addition to driver himself is prohibited and such person other than driver can only be carried in position behind respondent-carrying of children in front of driver in 14 SCCH-1 MVC .3733/2014 standing or sitting position, held is breach of safety measures statutorily prescribed. ..."
25. The counsel has also relied upon the unreported judgment reported in MFA.5314/2009(MV) (H.B.Hemakesh
-warappa vs Adbul Roop khan and another.) In this judgment, the Hon'ble High Court has set aside the judgment and award passed by the trial court by fixing the liability to the extent of 75%, considering the admissions of the witness. The Hon'ble High Court has dismissed the claim petition holding that the negligence on the part of the rider of the motor cycle who was carrying three persons.
26. The learned counsel appearing for the 2nd respondent has also relied upon the decision reported in ILR 2013 KAR 5097 (Bajaj Allianz Gen.Ins.Coo.Ltd., vs Ashok Raja URs K and another) In this judgment, the Hon'ble High Court has held that it is a false implication of the vehicle and the Hon'ble High Court has come to the conclusion that it is nothing but false implication of the vehicle .
27. The learned has also relied upon the divisional bench judgment reported in ILR 2009 KAR 3562 ( Veerappa 15 SCCH-1 MVC .3733/2014 and another vs Siddappa and another) In this judgment, the Hon'ble High Court has held that "..Fraud and justice never dwell together-An attempt on the apart of the 1st respondent/owner to collude with the claimants with the fond hop of saddling the insurance company to pay compensation. The court can insist on proof of facts, if the admission is not satisfactory and the court is not satisfied, it wanted the claimants to prove their case independently. The claimants have miserably failed to prove their case and come to the conclusion that the fraud has been taken place..."
28. The 2nd respondent's counsel has also relied upon the unreported judgment reported in MFA.794/2009 (MV) (M/s.Bajaj Allianz Gen.Ins.Co.Ltd., -vs Nagamma and others) In this judgment, the Hon'ble High Court has held that the records discloses that the accident was due to fall from the Bicycle. Hence, the claimant is not entitled to claim any compensation.
29. On the other hand, the learned counsel for the petitioner has relied upon the judgment reported 2013 ACJ 16 SCCH-1 MVC .3733/2014 1423 (B.U.Chaitanya vs Managing Director, Bangalore Metropolitan Transport Corporation and another) In this judgment, the divisional bench has held that the petitioner deposed that bus hit the scooter from behind and she denied that accident had occurred due to rash and negligent riding of scooter by her father-Perusal of FIR, sketch and panchanama indicates that bus hit against the scooter-case was registered against bus driver-Tribunal recorded a finding that driver of bus was responsible for the accident Tribunal's finding upheld.
30. The counsel appearing for the petitioner has relied upon the High Court of Kerala judgment reported in 2014 ACJ 1678 ( Binoj Antony vs New India Assurance Co.Ltd.,) it is held that ".... riding of motor cycle with two pillion rider tanatamounts to contributory negligence on the part of motorcyclist -Held: no ; mere fact that motor cycle was carrying two persons ipso facto give rise to an inference of contributory negligence unless it is proved that such carrying of two petitioners actually contributed to the accident...". 17 SCCH-1 MVC .3733/2014
31. The counsel also relied upon the judgment of Rajasthan reported in 2014 ACJ 1287 ( United India Ins.Co.ltd., vs Santosh Devi and others) It is held that the Hon'ble High Court- NO evidence that accident occurred because three persons were travelling on the motor cycle- Tribunal held that driver of jeep was rash and negligent and solely responsible for the accident-Tribunal's finding upheld.
32. The petitioner's counsel also relied upon the judgment reported in 2014 ACJ 1762 (Karnail Singh and others vs Balwinder Singh and another) of Punjab and Haryana High Court. In this judgment also it is held riding of motor cycle with two pillion riders tantamounts to contributory negligence on the part of motorcyclist and pillion riders-held: - No; three persons travelling on a motor cycle may be guilty of traffic offence but there is no reason to make any inference regarding negligence as contributory by the only fact that three persons were going on a motor cycle and hitting from behind car dashed against a motor cycle from behind resulting in injuries to motor cyclist and two pillion riders.
18 SCCH-1 MVC .3733/2014
33. Keeping in view of the principles laid down in the judgment referred supra, this court has to examine the facts and circumstances of the case on hand. It is the case of the guardian of minor petitioner that the Tipper lorry came from behind and dashed against the motor cycle from rear side. PW-1 was subjected to the cross-examination and he categorically says that the lorry hit from back side of his motor cycle and nothing is elicited from the mouth of PW-1 that the Tipper lorry not hit the motor cycle from rear side. On perusal of the evidence of PW-2, he also says that the medical record discloses that the accident was taken place hit by a truck. RW-1 in his cross-examination has categorically admits that there may be delay on account of the petitioner taken to the hospital, and subjected to the surgery and there was delay in lodging the complaint and he does not know the promise made by the owner and driver of the vehicle to settle the matter. It is further important to note that he categorically admits that the hospital authority has given intimation to police on the same day. RW-1 further admits that they have not taken any action when they came to know 19 SCCH-1 MVC .3733/2014 about a false charge sheet has been filed against the driver. It is important to note that mere taking of defence is not enough stating that a false charge sheet has been filed against the driver of lorry and the respondents have not challenged the same. It is important to note that the respondent No.2 has also relied upon Ex.R.2-Medico Legal Register of DG hospital. The said Medico Legal Register of DG hospital dated 15-8-2014 and it is clear that the hospital has mentioned RTA occurred on 15-8-2014 near Uttarahalli Main road, Arehalliy Arch and hence, the place of accident also mentions the same. No doubt, in the cross-examination of PW-1, it is elicited that no vehicle number is mentioned in the Medico Legal Register of DG hospital and that does not mean that the vehicle was not involved in the accident. The petitioner also produced the sketch, which is marked as Ex.P.3 and the same has not been disputed while cross examining PW-1. The sketch also clearly discloses that both motor cycle and Tipper lorry were proceeding in the same direction and the lorry came towards motor cycle and hit from behind. The IMV report, which is marked as Ex.P.5 20 SCCH-1 MVC .3733/2014 discloses that the Tipper lorry hit on the right side portion of the motor cycle and there was damage to the crush guard. There is no any explanation on the part of the respondent No.2, why the damages was cussed to the motor cycle. No doubt, in Ex.P.6-IMV report, there is no damages caused to the lorry and when the Tipper lorry hits the motor cycle, the court cannot also expect that the lorry will be damaged and the contention of the 2nd respondent that no damages was caused. To believe the version of RW-1 and both medical and documentary proof of police records goes against the respondent No.2. The respondent No.2 has also not examined the driver of the lorry, who is the right person to speak , whether the vehicle was involved in the accident or not. Further more, the police have also investigated the matter and filed the charge sheet in terms of Ex.P.8. Apart from that, there is no any documentary evidence before this Tribunal to believe the version of respondent No.2 and the principles laid down in the judgment referred supra, I am of the opinion that the driver of the lorry was hit the motor cycle from behind. Even if the petitioner was proceeding along 21 SCCH-1 MVC .3733/2014 with his two more pillion riders, same will not be the ground and the court has to see whether the motor cyclist is cause for the accident. I do not find any material that the rider of the motor cycle also contributed for cause of the accident. The apex court in the judgment of Supreme court in 2014 Kant MAC 330 (SC) Meera Devi & others Vs. Himachal Road Transportation & others wherein it was held as under:-
"....No cogent evidence to prove plea of contributory negligence - Doctrine of common law cannot be applied -
Compensation awarded by Tribunal Just and proper...."
It is also important that, in the absence of any contra evidence and cogent evidence, the Court cannot comes to any conclusion of contributory negligence and hence, I accept the version of PW-1 and also documentary evidence. Hence, I answer Issue No.1 in the Affirmative and Issue No.2 in the Negative.
34. ISSUE No.3: It is the case of the PW.1 that, the minor Petitioner has sustained grievous injury i.e, facture of both bones of right leg and also produced the wound certificate which is marked as Ex.P.7. It is further case of the petitioner that the minor petitioner was admitted in the 22 SCCH-1 MVC .3733/2014 hospital as in patient and produced the discharge summary , which is marked as Ex.P.10. which discloses that he was admitted on 15-8-2014 and discharged on 16-8-2014. The surgery was conducted on 15-8-2014 itself. PW-1 was also subjected to the cross-examination. In the cross-examination, he says that immediately after the accident, the minor petitioner was shifted to DG hospital and he has produced the wound certificate of DG hospital. It is suggested that his son has not sustained any grievous injury and hence, first aid treatment of records of DG hospital are not produced before this Tribunal and the said suggestion was denied. However, he says the people have not advised him to take his son to higher center. It is suggested that his son has not suffered any factures and Ex.P.7 is created and the same was denied. He says they went to Mallya hospital at around 2 to 2.15 p.m. It is suggested in Ex.P.10, he got it mention that the truck came and hit their 2wheeler and the said suggestion was denied. He admits that in Mallya hospital, next day his son was discharged. It is suggested that his son was not subjected to any surgery and the said suggestion was denied. 23 SCCH-1 MVC .3733/2014 It is suggested that Ex.P.13 is created and he had not spent an amount of Rs.46,000/-and the said suggestion was denied.
35. The petitioner has also relied upon the evidence of PW-2, who is anesthetists at Mallya hospital. He says that he advised him to come for follow up treatment and also physiotherapy treatment. In the cross-examination, PW-2 admits that he does not know whether the petitioner has taken treatment at DG hospital or not. He also admitted that he is not an ortho. Doctor Sharath Kumar Shetty-Ortho has advised the patient to take physiotherapy treatment.
36. The petitioner has also relied upon the evidence of Dr.Avinash Parthasarathy, who examined as PW-3 is an orthopedic Surgeon at Srinivasa hospital. In his evidence , he says that the injured -minor petitioner was subjected to the surgery. He assessed the disability considering the mobility, stability and extra points. He has assessed the permanent disability at 10%. In the cross-examination, he admits that he assessed the disability in one sitting, for the first time, on 3-9-2015. He has taken x-ray and the same does not contain 24 SCCH-1 MVC .3733/2014 the report. He says x-ray is produced before this Tribunal. He admits that the wounds are healed and factures are also united. However, he volunteers that the disability is stable and perm anent in nature.
37. Now let me appreciate both oral and documentary evidence available before this Tribunal. Before assessing the oral and documentary evidence I would like to mention the contention of RW-1. In his evidence, the MLC extract issued by DG hospital and the evidence given by PW-1 is exaggerated. However, in the cross-examination, RW1 in his cross-examination categorically admits that the hospital authority have given intimation to the police on the same day and they have relied upon Ex.R.2-MLC issued by the DG hospital.
38. On perusal of DG hospital MLC before this Tribunal, it is clear that the petitioner has sustained facture of both bones of right tibia and fibula. The document produced by the petitioner and also wound certificate, which is marked as Ex.P.7 issued by Mallaya hospital discloses that the petitioner 25 SCCH-1 MVC .3733/2014 sustained facture of distal end right tibia and facture of distal end right fibula. Both MLC issued by DG hospital and wound certificate confirms the facture of both bones of right leg. The petitioner has relied upon the study certificate issued by the School which is marked as Ex.P.9, which discloses that from 14-8-2014 till 31-10-2014 minor petitioner did not attend the school. Ex.P.10-discharge summary of Mallaya hospital confirms the facture of both bones of right leg and he was subjected to surgery on 15-8-2014. The doctor's evidence also discloses that the minor petitioner sustained facture of both bones of right leg. For having taken note of evidence available on record, both oral and documentary, it is clear that the minor petitioner has sustained fracture of both bone right leg, I am of the opinion that the petitioner is entitled for compensation of Rs.40,000/- under the head of pain and sufferings.
39. The petitioner is a minor and admittedly, 8 year's school going boy. Though, PW-3 is not a treated doctor but on perusal of evidence of PW-3, he has assessed the disability considering the mobility, stability and extra points at 10% in 26 SCCH-1 MVC .3733/2014 respect of both bones of right leg. It is also admitted fact that the petitioner is a tender aged boy and the recovery is also fast. The disability assessed by the doctor at 10% is not exorbitant. It has to be noted that he has sustained fracture of both bones of right leg. The Apex court has held in the Mallikarjuna's case that fixed compensation is awarded, in the case of disability caused to the children due to the accidental injuries. As per the said decision, that if the percentage of disability is less than 10%, an amount of Rs.1,00,000/-has to be awarded. Hence, I am of the opinion that it is a fit case to award compensation of Rs.1,00,000/- under the head of disability.
40. The PW.1 has produced medical bills to the tune of Rs.46,575/-, which is marked as Ex.P.13 and also produced the 2x-rays as Ex.P.14.- In the cross-examination of PW-1, though he admits that the minor petitioner was discharged on the next day of the surgery. The discharge summary discloses that he was in patient on 15-8-2014 and discharged on 16-8-2014. He subjected to surgery. The medical bills clearly discloses the in patient bill to the tune of 27 SCCH-1 MVC .3733/2014 Rs.42,315/- issued by the Mallya hospital. The advance amount paid to the tune of Rs.30,000/ . The petitioner has also produced other bills for having spent amount. On perusal of these bills, it is clear that these bills are issued by the Mallya hospital. The inpatient bill includes the drug supplied by Green apple worth Rs.2578/- and the other bills which are produced before this Tribunal are also dated 16-8- 2014. Later-on, in the very same hospital, the bills are issued when the petitioner went for follow up treatment in the Mallaya hospital during the month of September and October. Hence, this Tribunal has to accept these bills. I do not find any materials to disbelieve the suggestion of the petitioner. Hence, I round up the medical bills amount to the tune of Rs.47,000/-.
41. The minor petitioner is a tender aged boy of 8 years and suffered facture of both bones of right leg and also assessed the disability as 10%. He has to lead rest of his life with the said disability. PW-3 -Dr also though he admits that healing of injury and uniting of the facture in a tender age is quicker, he volunteers the disability is stable and permanent 28 SCCH-1 MVC .3733/2014 in nature, I am of the opinion that, the Petitioner is entitled for an amount of Rs.15,000/- on the head loss of amenities in life.
42. The petitioner was in the hospital as an in patient for 2days and he was also suspected to surgery. For having taken note of the same, I award Rs.5,000/- under the head traveling expenses, conveyance charges, attendant charges and other incidental expenses.
The details of compensation, I propose to award are as under:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000.00
2. Disability Rs. 1,00,000.00
3. Medical expenses Rs. 47,000.00
4. Traveling expenses, Rs. 05,000.00
conveyance charges, attendant
charges and other incidental
expenses.
6. Loss of amenities in life Rs. 15,000.00
Total Rs. 2,07,000.00
29 SCCH-1
MVC .3733/2014
In all the Petitioner is entitled for compensation of Rs. 2,07,000/-.
43. As regards the liability to be fixed on the respondents, admittedly the respondent No.1 is the insured of the Tipper lorry bearing Reg.No. 42/A.2378 and the respondent No.2 is the insurer of the said lorry. Hence, both respondents are jointly and severally liable to pay compensation to the petitioner. However, primary liability is fixed on respondent No.2- insurance company to satisfy the award. Hence, this issue is answered accordingly.
44. Issue No.3: In the result, I proceed to pass the following: -
ORDER The petition filed by the minor petitioner is allowed in part against the respondents.
The minor petitioner is entitled for total compensation of Rs. 2,07,000/-. He is entitled for interest at the rate of 9% per annum from the date of petition till realization.
The respondents No.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 30 SCCH-1 MVC .3733/2014 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 compensation amount to which the minor petitioner is entitled, Rs.75,000/- with proportionate interest is to be released in the name of guardian of the petitioner and the remaining amount with proportionate interest is ordered to be kept in F.D. in the name of the minor petitioner in any nationalized or scheduled bank of their choice till minor petitioner attains majority.
Advocate's fee is fixed at Rs.1000/-.
Draw an award accordingly.
(Dictated to the Stenographer, Computerised by her, corrected, signed and then pronounced by me in the open court on this the 17th day of October, 2015) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
*********** ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Narahari S.R.
P.W.2 : Sunil Dr.Avinash Parthasarathy
31 SCCH-1
MVC .3733/2014
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR
Ex.P-2 : Letter given by the Petitioner
Ex.P-3 : Sketch
Ex.P-4 : Mahazar
Ex.P-5 & 6 2 IMV reports
Ex.P-7 : Wound certificate
Ex.P-8 : Chargesheet
Ex.P-9 : Study certificate of my son
Ex.P-10 : discharge summary
Ex.P.11 Out-patient slip
Ex.P.12 X-ray and lab reports
Ex.p.13 Medical bills ( 24 in nos.) for Rs. 46,575/-
Ex.P.14 2 X-rays
Ex.P.15 In patient record
Ex.P-16 : OP slip
Ex.P-17 : Disability proforma
Ex.P-18 : X-ray
Witnesses examined on behalf of the respondents :
RW-1 ... Smt.Kusuma
32 SCCH-1
MVC .3733/2014
Documents marked on behalf of the respondents:
Ex.R.1 Policy
Ex.R.2 MLC register
(H.P.SANDESH)
Member, Prl., M.A .C.T. Bangalore