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[Cites 11, Cited by 0]

Bangalore District Court

In Mvc Sri Bharath C.V vs In 1. Sri Somashekar S on 7 September, 2015

Before the Motor Accident Claims Tribunal at Bangalore
                      (SCCH-8)
    Present: Shri P.J. Somashekar B.A., LL.B.,
               XII Additional Small Causes Judge
             and Member, M.A.C.T., Bangalore.

          Dated this the 07th day of September 2015

       M.V.C. Nos.2094/2014 to 2096/2014

Petitioner in MVC Sri Bharath C.V.,
2094/2014         S/o Venkateshaiah,
                  Aged 21 years,
                  Residing at No.200,
                  1st Main road, 6th Cross,
                  Amba Bhavani Road,
                  Kamakshipalya,
                  Bangalore - 560 079.
                  (Sri B.H. Chikkanna, Advocate)

Petitioner in MVC Sri K.N. Kumar,
2095/2014         S/o Narayanaswamy,
                  Aged 19 years,
                  Residing at No.8,
                  C/o Eranna, Near service
                  station, Doddagollarahatti,
                  Magadi Main Road,
                  Bangalore - 560 091.

                   And also at
                   Kuravanka Village,
                   Channarayanapattna Taluk,
                   Hassan District.
                   (Sri B.H. Chikkanna, Advocate)

Petitioner in MVC Sri Purushotham V.,
2096/2014         S/o Venkatesh,
                  Aged 19 years,
 2            (SCCH-8)               M.V.C.2094/2014 to
                                          2096/2014



                 Residing at No.8,
                 C/o Eranna, Near service
                 station, Doddagollarahatti,
                 Magadi Main Road,
                 Bangalore - 560 091.

                 And also at
                 Yadavanahlli Village,
                 Bikkasale Post, Koppa Hobli,
                 Mandya Taluk, Mandya District.
                 (Sri B.H. Chikkanna, Advocate)

                 V/s.

Respondents in   1. Sri Somashekar S.,
all the cases       S/o Shivanna Gowda,
                    Major in age,
                    Resident at No.126, 3rd Stage,
                    3rd Block, Basaveshwara
                    Nagar, Bangalore - 560 079.

                    (RC Owner of HGV lorry
                    bearing Reg. No.KA-41-A-
                    8748)
                    (Exparte)

                 2. The Regional Manager,
                    Reliance General Insurance
                    Co. Ltd., No.5/111 & 6/112,
                    1st Floor, Unnati Arcade,
                    1st Block, Dr. Rajkumar Road,
                    Rajajinagar,
                    Bangalore - 560 010.
                    (Insurer of HGV lorry bearing
                    Reg. No.KA-41-A-8748)
                    I/P No.140153233400852.
                    Valid from 28-09-2013 to
                    27-09-2014.
                    (Sri H.C. Betsur, Advocate)
 3               (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



                 COMMON JUDGMENT

     These claim petitions filed by the petitioners are

being the cleaner and loader, unloader against the

respondents under Section 166 of Motor Vehicles Act,

1989, for seeking compensation of Rs.10,00,000/- each

for the injuries sustained by them in a road traffic

accident.

     2. The brief facts of the claim petitions in MVC

Nos.2094/2014 to 2096/2014 are as under:

     The    petitioners    in   MVC   Nos.2094/2014    to

2096/2014 are being said to be the cleaner, loader and

unloader in their claim petition were alleged that on 26-

02-2014 at about 4.15 p.m., they being the cleaner,

loader and unloader were proceeding in a HGV lorry

bearing No.KA-41-A-8748 on Bangalore Magadi main

road, when they were reached near Karekallupalya

Cross, the driver of the said lorry has drove the same

with high speed in a rash and negligent manner, without

observing the traffic rules and regulations and lost the
 4               (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



control dashed against the road side tree. Due to the

terrific impact, they were sustained grievous injuries. So,

immediately they were shifted to Sri Lakshmi Hospital,

wherein they took the treatment as an inpatient by

spending huge amount.

      3. Prior to the accident they were hale and healthy

working as a cleaner, loader and unloader by getting

monthly income of Rs.8,000/- and Rs.10,000/- each

respectively, due to the accidental injuries, they could

not do the work as before. The accident in question was

taken place on the rash and negligent driving of the lorry

driver. Thereby, Thavarekere Police have registered the

case against the lorry driver in their police station crime

No.129/2014 for the offences punishable u/s 279 and

337 of IPC. The respondent No.1 being the owner and

respondent No.2 being the insurer of the offending

vehicle are jointly and severally liable to pay the

compensation and prays for allow the claim petitions.

     4. In response of the notice, the respondent No.1 did

not appear nor file his written statement, as he was
 5               (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



placed exparte. The respondent No.2 being the insurer

has appeared through his counsel and filed the written

statement in which he has alleged that the claim

petitions filed by the petitioners are not maintainable in

law or on facts, but he has admitted about the issuance

of the policy in respect of the offending vehicle in favour

of the first respondent and the policy was valid from 28-

09-2013 to 27-09-2014 and his liability subject to terms

and conditions of the policy and he has alleged that there

is a 7 days delay in lodging the complaint, as the

petitioners in colluding with the police and the owner of

the vehicle were falsely implicated the vehicle and filed

the false case in order to get the compensation and he

has alleged that he has no knowledge about the

averments made in column No.1 to 15 and 17 to 22 of

the claim petition and the petitioners have to strict proof

of the same and he has alleged that either the owner of

the vehicle nor the jurisdictional police have not complied

the mandatory provisions of Section 134(C) and 158(6) of

MV Act in furnishing better particulars and as on the
 6                    (SCCH-8)                     M.V.C.2094/2014 to
                                                        2096/2014



date of the alleged accident, the offending vehicle driver

was not holding valid and effective driving licence to drive

the same and the first respondent being the owner has

entrusted the vehicle to the person who was not holding

valid and effective driving licence. So, the first respondent

has contravened the policy conditions. So, he is not liable

to pay any compensation to the petitioners and the

vehicle involved in the accident is the goods vehicle, no

loader/unloader and cleaner or any other persons

permitted to travel from one place to another place in the

goods     vehicle     as    per     Motor     Vehicles   Rules   and

regulations. So, the owner of the vehicle has violated the

terms and conditions of the policy and the claim petitions

filed by the petitioners are deserves for dismissal and the

vehicle   was       not    having    either    permit    nor   fitness

certificate and the vehicle was carrying the unauthorised

passengers in the lorry. So, the first respondent has

contravened the policy conditions and he has denied the

age, avocation and income of the petitioners and further

he has denied that the petitioners being said to be
 7               (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



cleaner and loader, unloader were proceeding in a lorry

and the driver of the said vehicle has drove the same with

high speed in a rash and negligent manner, without

observing the traffic rules and regulations dashed against

the road side tree, due to the said impact, the petitioners

were sustained grievous injuries and took the treatment

as an inpatient by spending huge amount and further he

has alleged that the petitioners who are the unauthorised

passengers were travelling in the alleged lorry. So, they

are not entitled any compensation and prays for reject

the claim petitions.

     5. On the basis of the pleadings of the parties, the

following issues are framed in all the claim petitions:

      MVC No. 2094/2014

        1. Whether the petitioner proves that he
        has    sustained    grievous   injuries   as
        mentioned in wound certificate, in a road
        traffic accident on 26-02-2014 at about
        4.15     p.m.,     Karekallupalya     Cross,
        Tavarekere Hobli, Bangalore South Taluk,
        Bangalore, due to the rash and negligent
 8             (SCCH-8)                M.V.C.2094/2014 to
                                            2096/2014



      driving of the driver of the lorry bearing
      registration No.KA-41-A-8748?
      2. Whether the petitioner is entitled for
      any compensation? If so to what extent
      and from whom?
       3. What Order or Award?



    MVC No. 2095/2014

      1. Whether the petitioner proves that he
      has    sustained    grievous   injuries   as
      mentioned in wound certificate, in a road
      traffic accident on 26-02-2014 at about
      4.15    p.m.,      Karekallupalya    Cross,
      Tavarekere Hobli, Bangalore South Taluk,
      Bangalore, due to the rash and negligent
      driving of the driver of the lorry bearing
      registration No.KA-41-A-8748?
      2. Whether the petitioner is entitled for
      any compensation? If so to what extent
      and from whom?
       3. What Order or Award?


    MVC No. 2096/2014

      1. Whether the petitioner proves that he
      has    sustained    grievous   injuries   as
 9               (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



        mentioned in wound certificate, in a road
        traffic accident on 26-02-2014 at about
        4.15    p.m.,      Karekallupalya   Cross,
        Tavarekere Hobli, Bangalore South Taluk,
        Bangalore, due to the rash and negligent
        driving of the driver of the lorry bearing
        registration No.KA-41-A-8748?
        2. Whether the petitioner is entitled for
        any compensation? If so to what extent
        and from whom?
        3. What Order or Award?

     6. The learned counsel for the petitioners has filed

memo on 26-03-2015 and prays for club the MVC

Nos.2095/2014 and 2096/2014 with MVC 2094/2014.

Accordingly the said memo was came to be accepted.

MVC Nos.2095/2014 and 2096/2014 are clubbed in

MVC 2094/2014, as these claim petitions are arising out

of the same accident, for recording of common evidence

and for disposal.

     7. The petitioners in order to prove their claim

petitions, the petitioner in MVC No.2094/2014 has

examined himself as PW1 and got marked the documents
 10               (SCCH-8)                 M.V.C.2094/2014 to
                                                2096/2014



as Ex.P1 to Ex.P8 and Ex.P13. The petitioner in MVC

No.2095/2014 has examined himself as PW2 and got

marked the documents as Ex.P9, Ex.P10, Ex.P14 and

Ex.P15. The petitioner in MVC No.2096/2014 has

examined himself as PW3 and got marked the documents

as Ex.P11, Ex.P12, Ex.P16 and Ex.P17. The petitioners

have examined one witness on their behalf as PW4 and

got marked the documents as Ex.P18 to Ex.P23. The

respondent No.2 in order to prove his defence has

examined Deputy Manager as RW1 and got marked the

document as Ex.R1.

       8. Heard arguments on both side.

       9. My findings to the above issues are as

under:


     Case No.      Issue No.1    Issue No.2      Issue No.3

        MVC
     2094/2014
        MVC           In the     Partly in the    As per the
     2095/2014     affirmative    affirmative    final order
        MVC
     2096/2014
 11              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014




                     REASONS

     10. Issue No.1 in all the claim petitions.


     The petitioners being said to be the cleaner, loader

and unloader were approached the court on the ground

that on 26-02-2014 at about 4.15 p.m., they were

proceeding in a HGV lorry bearing No.KA-41-A-8748 on

Bangalore Magadi main road, when they were reached

near Karekallupalya Cross, the driver of the said lorry

has drove the same with high speed in a rash and

negligent manner, without observing the traffic rules and

regulations and lost the control dashed against the road

side tree. Due to the terrific impact, they were sustained

grievous injuries and took the treatment as an inpatient

by spending huge amount. Thereby, the petitioners have

filed the instant claim petitions against the respondents.


     11. The petitioner in MVC 2094/2014 in order to

prove his claim petition has filed his affidavit as his chief

examination as PW1 in which has stated that on 26-02-
 12              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



2014 at about 4.15 p.m., himself and others were

proceeding in a HGV lorry bearing No.KA-41-A-8748 as a

cleaner, loader and unloader on Bangalore Magadi main

road, when the said lorry reached near Karekallupalya

Cross, the driver of the said lorry has drove the same

with high speed in a rash and negligent manner, without

observing the traffic rules and regulations and lost the

control dashed against the road side tree. Due to the

terrific impact, himself and others who are the loader and

unloader    were    sustained    grievous    injuries.   So,

immediately they were shifted to Sri Lakshmi Hospital,

wherein they took the treatment as an inpatient by

spending huge amount. The accident in question was

taken place on account of rash and negligent driving of

the lorry driver. Thereby, Thavarekere Police have

registered the case against the lorry driver in their police

station crime No.129/2014 for the offences punishable

u/s 279 and 337 of IPC. The PW1 in his cross

examination has admitted that the lorry which belongs to

Somashekar who is the owner of the offending vehicle as
 13               (SCCH-8)                M.V.C.2094/2014 to
                                               2096/2014



on the date of the alleged accident and since one year he

was working as a cleaner in the said lorry and the lorry

owner using the said lorry for the purpose of lifting the

sand and he has pleaded ignorance about the permit to

lift the sand to the Bangalore and he has denied that as

on the date of the alleged accident, he was not travelling

in the offenidng vehicle and other inmates were also not

travelling as a loader and unloader and as on the date of

the alleged accident, he was travelling in the offending

vehicle as an unauthorised passenger, that is the reason

why, 7 days delay was caused in lodging the complaint

and he has denied that as on the date of the alleged

accident, he was not proceeding as a cleaner, but he was

proceeding as an unauthorised passenger.


     12.   The   PW2    being   the   petitioner   in   MVC

2095/2014 in his evidence has stated that on 26-02-

2014 at about 4.15 p.m., he was proceeding in a HGV

lorry as a loader and unloader on Bangalore Magadi main

road, when the said lorry reached near Karekallupalya
 14                (SCCH-8)                  M.V.C.2094/2014 to
                                                  2096/2014



Cross, the driver of the said lorry has drove the same

with high speed in a rash and negligent manner, without

observing the traffic rules and regulations and lost the

control dashed against the road side tree. Due to the

terrific impact, he was sustained grievous injuries. So,

immediately he was shifted to Sri Lakshmi Hospital,

wherein he took the treatment as an inpatient by

spending huge amount. The accident in question was

taken place on account of rash and negligent driving of

the lorry driver. The PW2 in his cross examination has

denied that as on the date of the alleged accident, he was

travelling in the lorry as an unauthorised passenger and

he was not travelling as a loader and unloader and he

has   created     the   documents   in    order   to   get    the

compensation.


      13.   The    PW3    being   the    petitioner    in    MVC

2096/2014 in his evidence has stated that on 26-02-

2014 at about 4.15 p.m., he was proceeding in a HGV

lorry as a loader and unloader on Bangalore Magadi main
 15              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



road, when the said lorry reached near Karekallupalya

Cross, the driver of the said lorry has drove the same

with high speed in a rash and negligent manner, without

observing the traffic rules and regulations and lost the

control dashed against the road side tree. Due to the

terrific impact, he was sustained grievous injuries. So,

immediately he was shifted to Sri Lakshmi Hospital,

wherein he took the treatment as an inpatient by

spending huge amount. The accident in question was

taken place on account of rash and negligent driving of

the lorry driver. The PW3 in his cross examination has

denied that as on the date of the alleged accident, he was

not travelling as a loader and unloader and he was

travelling in the lorry as an unauthorised passenger, that

is the reason why, 7 days delay was caused in lodging the

complaint and they have colluding with the police and

the owner of the vehicle have falsely implicated the

vehicle in order to get the compensation.
 16              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



     14. The    petitioners   in   support   of   their   oral

evidence have produced the documents marked as Ex.P1

to Ex.P23. Ex.P1 is the information filed by one K.N.

Kumar who is none other than the petitioner in MVC

2095/2014 in which he has stated that since 4 months,

he was working as a loader and unloader in a lorry

bearing   No.KA-41-A-8748      which    belongs     to    the

Somashekar and one Purushotham was also working as

a loader and unloader and one Bharath who is the

cleaner of the said lorry and they use to lift the sand

through the said lorry to the Bangalore. On 26-02-2014

they came to the Bangalore in a lorry bearing No.KA-41-

A-8748, after unloading the sand were proceeding on

Bangalore Magadi main road, when they were reached

near Karekellupalya Cross at about 4.15 p.m., the driver

of the said lorry has drove the same with high speed in a

rash and negligent manner, without observing the traffic

rules and regulations and lost the control dashed against

the road side tree. Due to the terrific impact, himself and

other inmates of the lorry were sustained grievous
 17              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



injuries. So based on the information which was taken at

Lakshmi Multi Speciality Hospital, Thavarekere Police

have registered the case against the lorry driver in their

police   station crime     No.129/2014 for the   offences

punishable u/s 279 and 337 of IPC. The learned counsel

for the respondent has cross examined the PW1 to PW3,

but nothing is elicited to disbelieve their evidence.

Though, the said counsel has suggested the PW1 to PW3

that as on the date of the alleged accident, they were

proceeding in the offending vehicle as an unauthorised

passengers and they were not proceeding as a cleaner

nor the loader and unloader for which they have denied

the same. Except the suggestion to the PW1 to PW3

nothing is placed on record to show that as on the date of

the alleged accident, the PW1 to PW3 were travelling in

the offending vehicle as an unauthorised passenger and

they did not travelling either the cleaner nor the loader

and unloader. Even the respondent has not examined the

offending vehicle driver nor the witnesses who are cited

in the charge sheet to show that as on the date of the
 18               (SCCH-8)                 M.V.C.2094/2014 to
                                                2096/2014



alleged accident, the petitioners were not travelling in a

offending vehicle as cleaner nor loader and unloader, if

that is so, the matter would have different. Ex.P1 clearly

reflects that as on the date of the alleged accident, the

PW1 to PW3 were travelling in the offending vehicle as a

cleaner, loader and unloader. So, Ex.P1 and Ex.P2 are

corroborate the evidence of the PW1 to PW3, even the

respondent has not challenged either the complaint nor

the charge sheet filed against the offending vehicle to

show that the petitioners have falsely implicated the

vehicle nor placed any materials to show that as on the

date of the alleged accident, the petitioners were not

travelling as a cleaner or loader and unloader, as they

were travelling as an unauthorised passengers. In the

absence of the materials on record from the respondent

side, it is clear that as on the date of the alleged accident,

the petitioners were travelling in a offending vehicle as a

cleaner, loader and unloader. Though, the respondent

has taken up the contention that there is a 7 days delay

in lodging the complaint, that itself is clear that the
 19              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



petitioners have falsely filed the complaint against the

offending vehicle driver, but the suggestion made by the

learned counsel for the respondent to the PW1 to PW3

clearly reflects that as on the date of the alleged accident,

the petitioners were travelling in a offending vehicle and

the driver of the offending vehicle has drove the same

with high speed in a rash and negligent manner, without

observing the traffic rules and regulations dashed against

the road side tree, as a result the petitioner were

sustained injuries as shown in the wound certificate. So,

one thing is clear from the suggestion of the learned

counsel for the respondent clear that as on the date of

the alleged accident, the petitioners were travelling in a

offending vehicle as a cleaner, loader and unloader and

they sustained the injuries in a road traffic accident

caused by the offending vehicle driver. Ex.P3 is the

panchanama clearly reflects that the accident in question

was taken place on account of rash and negligent driving

of the offending vehicle driver and moreover the learned

counsel for the respondent has not at all denied the
 20              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



accident said to have been taken place on 26-02-2014.

So, Ex.P5 reflects that the accident was taken place and

Motor Vehicles Inspector has inspected the vehicle and

found the damages as shown in the Ex.P5, that itself is

clear that the accident was occurred on account of rash

and negligent driving of the offending vehicle driver and

the petitioners were sustained the injuries. Ex.P4 to

Ex.P23 are clearly reflects that the petitioners were

travelling in a offending vehicle as a cleaner, loader and

unloader and the accident was occurred on account of

rash and negligent driving of the offending vehicle driver

and they were sustained grievous injuries and took the

treatment as an inpatient by spending huge amount. So,

the documents marked as Ex.P1 to Ex.P23 are coupled

with the oral evidence of the PW1 to PW3. Though, the

respondent has examined his Deputy Manager, but his

evidence will not help the respondent to prove that as on

the date of the alleged accident, the petitioners were not

travelling as a cleaner, loader and unloader, since the

respondent has not placed any rebuttal evidence to
 21               (SCCH-8)               M.V.C.2094/2014 to
                                              2096/2014



disbelieve the oral and documentary evidence of the

petitioners. On the other hand the petitioners have

proved their case through oral and documentary evidence

that the accident in question was taken place on account

of rash and negligent driving of the offending vehicle

driver. Hence, I am of the opinion that the issue No.1 in

all the claim petitions is answered as affirmative.


     15. Issue No.2 in MVC 2094/2014:

     The PW1 being the injured in MVC 2094/2014 in

his evidence has clearly stated that on 26-02-2014 at

about 4.15 p.m., he was proceeding as a cleaner in a

lorry bearing No.KA-41-A-8748, the driver of the said

lorry has drove the same in a rash and negligent manner,

without observing the traffic rules and regulations lost

the control over the lorry and dashed against the road

side tree. Due to the said impact he was sustained the

following injuries;


     1) Contusion over the right on lateral
        aspect, measuring 4x3 cms, X-ray of
 22              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



        right thigh shows fracture of femur at the
        junction of upper 1 ½ with lower ½.

     2) Contusion over the forehead on right
        side, measuring 2x2 cms.

     16. So, immediately he was shifted to Sri Lakshmi

Hospital, wherein he took the treatment as an inpatient,

as he has sustained fracture of right femur and

underwent open reduction and internal with IL nailing

was done on 27-02-2014 and he has also took the

treatment till 04-03-2014 and discharged with an advice

for regular follow up treatment.


     17. Prior to the accident he was hale and healthy

working as a cleaner by getting monthly income of

Rs.8,000/- and Rs.50/- bata per day, due to the

accidental injuries, he was undergoing deep mental

shock and agony, suffering unbearable pain, untold

hardship and discomfort and he cannot lift weight due to

the fracture of right femur and he cannot squat on floor,

as his right leg became weak and he is limping on the

right side. The PW1 in his cross examination has denied

that he has sustained only simple injuries and created
 23               (SCCH-8)                M.V.C.2094/2014 to
                                               2096/2014



the documents and medical bills in order to get the

compensation and he has not facing any difficulties as

alleged in the affidavit.


     18. The PW4 being the Orthopaedic Surgeon at

Lakshmi Hospital, Magadi main road, Bangalore in his

evidence has stated that the petitioner has met with an

accident on 26-02-2014 and sustained the following

injuries;


     a) Closed fracture femur right let.


     b) ACL Avulsion.


     19. So, he was underwent surgery of IL nailing right

femur with heel pad suturing and discharged on 04-03-

2014. Recently on 08-07-2014 he has examined the

petitioner and found the following difficulties;


            Stiffness of right hip, stiffness of right
     knee, walks with limp, pain in right knee
     and difficulty in carrying out activities of
     daily living.
 24              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



     20. So, the petitioner has sustained permanent

functional disability of 53% of right lower limb and 18%

of whole body and one more surgery is required for

removal of implants. The PW4 in his cross examination

has admitted that he has treated the petitioner as one of

the team doctor and the case sheet is not disclosing his

name to show that he has also one of the doctor treated

to the petitioner and one Dr. Deepak Kumar has

conducted the surgery and the petitioner has took the

treatment as an outpatient after the discharge, the

fracture is united.


     21. The PW1 being the injured in his evidence has

clearly stated about the injuries sustained by him in the

accident and also stated about the difficulties facing by

him after the accident. The PW4 being the Orthopaedic

Surgeon in his evidence has clearly stated about the

complaints and disability of the petitioner after the

accident. So, the evidence of the PW4 corroborate the

evidence of the PW1. Ex.P4 is the wound certificate
 25              (SCCH-8)                       M.V.C.2094/2014 to
                                                     2096/2014



issued by the Sri Lakshmi Multi Speciality Hospital,

Bangalore   clearly   reflects   that        the   petitioner   has

sustained the following injuries;

     1) Contusion over the right thigh on lateral
        aspect, measuring 4x3 cms. X-ray of right
        thigh   shows      fracture     of    femur     at   the
        junction of upper ½ with lower ½.
     2) Contusion over the forehead on right side,
        measuring 2x2 cms.

     22. So, the above said injury No.1 is grievous in

nature and injury No.2 is simple in nature. Ex.P13 is the

discharge summary clearly reflects that the petitioner

soon after the accident has got admitted to the Sri

Lakshmi Multi Speciality Hospital, wherein he took the

treatment as an inpatient from 26-02-2014 to 04-03-

2014 for a period of 7 days, as he has sustained fracture

of right femur with right ACL avulsion. So, he was

underwent CRIF with IL nailing of right femur under SA

on 27-02-2014, as he has sustained the injury in a road

traffic accident near Maranahalli, Tavarekere, Magadi

main road at 4.30 p.m., on 26-02-2014. Ex.P7 is the
 26                (SCCH-8)                   M.V.C.2094/2014 to
                                                   2096/2014



medical bills clearly reflects that the petitioner has took

the treatment in connection of the injuries sustained by

him in a road traffic accident. So, the documents marked

as Ex.P4, Ex.P7 and Ex.P13 are clearly reflects that the

petitioner has took the treatment in connection of the

injuries sustained by him in a road traffic accident and

underwent surgery. So considering the injuries sustained

by the petitioner in a road traffic accident and the

evidence of PW1 and PW4 as well as duration of

treatment, it is just and necessary to grant just

compensation to the petitioner in the following heads;

     a) Pain and suffering.

     The PW1 being the injured in his evidence has

clearly stated that he has sustained fracture of right

femur in a road traffic accident said to have been taken

place on 26-02-2014 and took the treatment as an

inpatient for a period of 7 days and he has underwent

surgery. PW4 being the Orthopaedic Surgeon in his

evidence has clearly stated about the complaints and

disability   of   the   petitioner   after   the   accident.   So
 27              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



considering the evidence of the PW1 and PW4 and the

injuries sustained by the petitioner as well as the

duration of treatment he would have sustained pain and

agony for which, it is just and necessary to award

compensation of Rs.50,000/- for the above head, it will

meet the ends of justice. Hence, Rs.50,000/- is awarded

for the above head.

     b) Loss of income during laid up period:

     The PW1 being the injured in his evidence has

stated that prior to the accident he was hale and healthy

working as a cleaner by getting monthly income of

Rs.8,000/- and Rs.50/- bata per day, after the accident

he could not do the work as before. But the reasons best

known to him has not examined any independent witness

nor examined the person under whom he was working as

a cleaner to show that prior to the accident he was

working as a cleaner by getting monthly income of

Rs.8,000/- and Rs.50/- bata per day. In the absence of

the materials on record, it is very difficult to believe the

income of the petitioner as alleged in the claim petition.
 28              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



So considering the age and skill of the petitioner and the

present life condition, it is just and necessary to consider

the monthly notional income of Rs.6,000/- it will meet

the ends of justice. Ex.P4 is the wound certificate clearly

reflects that the petitioner has sustained grievous

injuries. Ex.P13 is the discharge summary clearly reflects

that he has sustained the grievous injuries and took the

treatment as an inpatient for a period of 7 days. So, the

petitioner might have lost income for a period of three

months. So three months income comes to Rs.18,000/-.

So Rs.18,000/- is granted for the above head.

     c) Medical expenses

     The PW1 being the injured in his evidence has

stated that he has sustained fracture of right femur in a

road traffic accident and took the treatment as an

inpatient by spending huge amount of Rs.2,00,000/- and

he lost some of the medical bills, but on record the

petitioner has produced the medical bills worth of

Rs.1,84,543/-. Though the learned counsel for the

respondent has disputed the medical bills produced by
 29              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



the petitioner, but nothing is placed on record to show

that the medical bills produced by the petitioner are

created nor fabricated in order to get the compensation.

So, in the absence of the materials on record, it is clear

that the petitioner has took the treatment in connection

of the injuries sustained by him in a road traffic accident.

Therefore, Rs.1,84,543/- is granted for the above head.

     d) Loss of future earning:

     The PW1 being the injured in his evidence has

clearly stated that he has sustained fracture of right

femur in a road traffic accident said to have been taken

place on 26-02-2014 and took the treatment as an

inpatient for a period of 7 days and he was underwent

surgery, but inspite of best treatment, he could not come

to the normal position. The PW4 being the Orthopaedic

Surgeon in his evidence has clearly stated about the

complaints and disability of the petitioner after the

accident. According to him the petitioner has sustained

permanent functional disability to an extent of 53% of

right lower limb and 18% of total body. The PW4 in his
 30              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



cross examination has admitted that the fracture is

united. So, considering the evidence of the PW1 and PW4

and the medical records and the injuries sustained by

the petitioner and duration of treatment as well as his

avocation, it is just and necessary to consider the

disability of 13% of the whole body instead of 18%, it will

meet the ends of justice. So, his income is already

considered as Rs.6,000/- per month. Ex.P4 is the wound

certificate clearly reflects that as on the date of the

alleged accident, the petitioner was aged about 25 years.

Ex.P13 is the discharge summary clearly reflects that as

on the date of the alleged accident, the petitioner was

aged about 22 years. The petitioner in his claim petition

has clearly stated that as on the date of the alleged

accident, he was aged about 21 years. So, considering

the medical records and the discharge summary as well

as the wound certificate as on the date of the alleged

accident, the petitioner was aged about 22 years, even if

the petitioner age is taken into consideration as shown in

the Ex.P4 as 25 years, as per Sarlaverma Vs. Delhi
 31               (SCCH-8)                  M.V.C.2094/2014 to
                                                 2096/2014



Transport Corporation Ltd., reported in 2009 ACJ 1298

the multiplier applicable is 18. So the loss of future

earning is works out as under;

     Rs.6,000X12X18X13/100=1,68,480/-.

     Hence, the petitioner is entitled for Rs.1,68,480/-

for the above head.

     e) Loss of amenities, conveyance, food and

nourishment, attendant charges:


     The PW1 being the injured in his evidence has

clearly stated that he has sustained the fracture in a

road traffic accident said to have been taken place on 26-

02-2014 and took the treatment as an inpatient for a

period of 7 days and he has also took the treatment as an

outpatient and underwent surgery. The PW4 being the

Orthopaedic Surgeon in his evidence has clearly stated

about the complaints and disability of the petitioner after

the accident. So considering the evidence of PW1 and

PW4 and duration of treatment as well as the complaints

and disability of the petitioner after the accident, it is just
 32              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



and necessary to grant Rs.30,000/- for the above head, it

will meet the ends of justice. So Rs.30,000/- is granted

for the above head.


     f) Future medical expenses:

     The PW1 being the injured in his evidence has

clearly stated that he has sustained fracture of right

femur and underwent surgery and implants are in situ.

The PW4 being the Orthopaedic Surgeon in his evidence

has stated that one more surgery is required for removal

of implants. So considering the injuries sustained by him

in a road traffic accident and the evidence of the PW1

and PW4, it is just and necessary to grant Rs.15,000/-

for the above head, it will meet the ends of justice. So

Rs.15,000/- is granted for the above head.

     23. Thus the total award stands as follows:

      1. Pain and suffering        Rs.     50,000-00
      2. Loss of income during Rs.   18,000-00
      laid up period
      3. Medical expenses      Rs. 1,84,543-00
      4. Loss of future earning    Rs. 1,68,480-00
      5.Loss     of     amenities, Rs.     30,000-00
 33              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



      conveyance,    food     and
      nourishment,      attendant
      charges etc.
      6. Future medical expenses Rs.     15,000-00
                       Total        Rs. 4,66,023-00



     24. Issue No.2 in MVC 2095/2014:

     The PW2 being the injured in MVC 2095/2014 in

his evidence has clearly stated that on 26-02-2014 at

about 4.15 p.m., he was proceeding as a loader and

unloader in a lorry bearing No.KA-41-A-8748, the driver

of the said lorry has drove the same in a rash and

negligent manner, without observing the traffic rules and

regulations lost the control over the lorry and dashed

against the road side tree. Due to the said impact he was

sustained the following injuries;


     1) Contusion over the left hand dorsal
        aspect, measuring 2x2 cms, X-ray of left
        wrist joint shows fracture dislocation of
        lower end of forearm.

     2) Contusion over the forehead on right
        side, measuring 2x1 cms.
 34               (SCCH-8)              M.V.C.2094/2014 to
                                             2096/2014



       25. So, immediately he was shifted to Sri Lakshmi

Hospital, wherein he took the treatment as an inpatient,

as he has sustained fracture dislocation of lower end of

forearm and underwent closed reduction and internal

with K wire fixation on 27-02-2014 and he was also

underwent wound debridement and suturing for facial

injury and took the incentive treatment and discharged

from the hospital on 03-03-2014 and after the discharge

he took the follow up treatment as per the advice of the

doctor by spending huge amount of Rs.1,80,000/-.


       26. Prior to the accident he was hale and healthy

working as a loader and unloader by getting monthly

income of Rs.10,000/-, due to the accidental injuries, he

was undergoing deep mental shock and agony and he

cannot lift weight nor sleep on the left side and he is

unable to do work as loader and unloader due to fracture

of left wrist. So, he could not fold his left hand and his

left   hand   became   weak.   The   PW2   in   his   cross

examination has denied that he has sustained only
 35              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



simple injuries and created the documents and medical

bills in order to get the compensation and he has

admitted that he has not produced estimation document

for removal of implants and he has denied that he has

not sustained any financial loss, due to the accidental

injuries.


     27. The PW4 being the Orthopaedic Surgeon at

Lakshmi Hospital, Magadi main road, Bangalore in his

evidence stated that the petitioner has met with an

accident on 26-02-2014 and sustained the following

injuries;


     a) Fracture dislocation lower end forearm left.

     b) Contusion forehead.


     28. So, he was underwent surgery ORIF with K wire

fixation and external fixator application left wrist on 27-

02-2014 and debridement and suturing of facial wounds

and he was discharged on 03-03-2014. He was re-

examined the petitioner on 08-07-2014 for the purpose of

disability assessment and found the following difficulties;
 36               (SCCH-8)                   M.V.C.2094/2014 to
                                                  2096/2014



            Stiffness   of   left   hip,   difficulty   in
     carrying out activities of daily living and
     complete union of fracture.

     29. So, the petitioner has sustained permanent

functional disability of 38% of right lower limb and 13%

of whole body and one more surgery is required for

removal of implants. The PW4 in his cross examination

has admitted that the fracture is united and he has

denied that he has stated more disability in order to help

the petitioner and he has admitted that on 08-07-2015

after clinical examination of the petitioner has stated the

disability of the petitioner and he cannot say the exact

date of union of the fracture and he has stated in the

affidavit about the functional disability of the petitioner

to an extent of 13% and he has denied that the petitioner

is not facing any difficulties for his day to day life and he

has admitted that in the x-ray films implants are not in

situ. So, one more surgery is not required for removal of

implants.
 37              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



     30. The PW2 being the injured in his evidence has

clearly stated about the injuries sustained by him in the

accident and also stated about the difficulties facing by

him after the accident as well as treatment taken by the

petitioner as an inpatient and outpatient. The PW4 being

the Orthopaedic Surgeon in his evidence has clearly

stated about the complaints and disability of the

petitioner after the accident. So, the evidence of the PW4

corroborate the evidence of the PW2. Ex.P14 is the

wound certificate issued by the Sri Lakshmi Multi

Speciality Hospital, Bangalore clearly reflects that the

petitioner has sustained the following injuries;

     1) Contusion over the left hand dorsal
        aspect, measuring 2x2 cms, X-ray of left
        wrist joint shows fracture dislocation of
        lower end of forearm.

     2) Contusion over the forehead on right
        side, measuring 2x1 cms.

     31. So, the above said injury No.1 is grievous in

nature and injury No.2 is simple in nature. Ex.P15 is the

discharge summary clearly reflects that the petitioner

soon after the accident has got admitted to the Sri
 38              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



Lakshmi Multi Speciality Hospital, wherein he took the

treatment as an inpatient from 26-02-2014 to 03-03-

2014 for a period of 6 days, as he has sustained fracture

dislocation of left wrist, fracture of left ribs and facial

injury. So, he was underwent CRIF with K wire fixation

with external fixator under GA on 27-02-2014 for facial

injury, debridement and suturing under GA on 27-02-

2014,   as he has sustained the injury in a road traffic

accident near Maranahalli, Tavarekere, Magadi main

road at 4.30 p.m., on 26-02-2014. Ex.P9 is the medical

bills clearly reflects that the petitioner has took the

treatment in connection of the injuries sustained by him

in a road traffic accident. Ex.P20 is the MLC reflects that

the petitioner has sustained grievous injury in a road

traffic accident and took the treatment as an inpatient

and underwent surgery. So, the documents marked as

Ex.P9, Ex.P14, Ex.P15 and Ex.P20 are clearly reflects

that the petitioner has took the treatment in connection

of the injuries sustained by him in a road traffic accident

and underwent surgery. So considering the injuries
 39              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



sustained by the petitioner in a road traffic accident and

the evidence of PW2 and PW4 as well as duration of

treatment, it is just and necessary to grant just

compensation to the petitioner in the following heads;

     a) Pain and suffering.

     The PW2 being the injured in his evidence has

clearly stated that he has sustained fracture of left wrist

joint and dislocation of lower end of forearm and

contusion over the forehead on right side in a road traffic

accident said to have been taken place on 26-02-2014

and took the treatment as an inpatient for a period of 6

days and he has underwent surgery. PW4 being the

Orthopaedic Surgeon in his evidence has clearly stated

about the complaints and disability of the petitioner after

the accident. So considering the evidence of the PW2 and

PW4 and the injuries sustained by the petitioner as well

as the duration of treatment he would have sustained

pain and agony for which, it is just and necessary to

award compensation of Rs.40,000/- for the above head,
 40              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



it will meet the ends of justice. Hence, Rs.40,000/- is

awarded for the above head.

     b) Loss of income during laid up period:

     The PW2 being the injured in his evidence has

stated that prior to the accident he was hale and healthy

working as a loader and unloader by getting monthly

income of Rs.10,000/-, after the accident he could not do

the work as before. But the reasons best known to him

has not examined any independent witness nor examined

the person under whom he was working as a loader and

unloader to show that prior to the accident he was

working as a loader and unloader by getting monthly

income of Rs.10,000/-. In the absence of the materials on

record, it is very difficult to believe the income of the

petitioner as alleged in the claim petition. So considering

the age and skill of the petitioner and the present life

condition, it is just and necessary to consider the

monthly notional income of Rs.6,000/- it will meet the

ends of justice. Ex.P14 is the wound certificate clearly

reflects that the petitioner has sustained grievous
 41              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



injuries. Ex.P15 is the discharge summary clearly reflects

that he has sustained the grievous injuries and took the

treatment as an inpatient for a period of 6 days. So, the

petitioner might have lost income for a period of three

months. So three months income comes to Rs.18,000/-.

So Rs.18,000/- is granted for the above head.

     c) Medical expenses

     The PW2 being the injured in his evidence has

stated that he has sustained fracture of left wrist joint

and dislocation of lower end of forearm and contusion

over the forehead on right side in a road traffic accident

and took the treatment as an inpatient by spending huge

amount of Rs.1,80,000/- and he lost some of the medical

bills, but on record the petitioner has produced the

medical bills worth of Rs.1,98,424/-. Though the learned

counsel for the respondent has disputed the medical bills

produced by the petitioner, but nothing is placed on

record to show that the medical bills produced by the

petitioner are created nor fabricated in order to get the

compensation. So, in the absence of the materials on
 42              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



record, it is clear that the petitioner has took the

treatment in connection of the injuries sustained by him

in a road traffic accident. Therefore, Rs.1,98,424/- is

granted for the above head.

     d) Loss of future earning:

     The PW2 being the injured in his evidence has

clearly stated that he has sustained fracture of left wrist

joint and dislocation of lower end of forearm and

contusion over the forehead on right side in a road traffic

accident said to have been taken place on 26-02-2014

and took the treatment as an inpatient for a period of 6

days and he was underwent surgery, but inspite of best

treatment, he could not come to the normal position. The

PW4 being the Orthopaedic Surgeon in his evidence has

clearly stated about the complaints and disability of the

petitioner after the accident. According to him the

petitioner has sustained permanent functional disability

to an extent of 38% of right lower limb and 13% of total

body. The PW4 in his cross examination has admitted

that the fracture is united. So, considering the evidence
 43              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



of the PW2 and PW4 and the medical records and the

injuries sustained by the petitioner and duration of

treatment as well as his avocation, it is just and

necessary to consider the disability of 8% of the whole

body instead of 13%, it will meet the ends of justice. So,

his income is already considered as Rs.6,000/- per

month. Ex.P14 and Ex.P15 are the wound certificate and

discharge summary clearly reflects that as on the date of

the alleged accident, the petitioner was aged about 18

years. The petitioner in his claim petition has clearly

stated that as on the date of the alleged accident, he was

aged about 19 years. Therefore, the petitioner age is

taken into consideration as 19 years as on the date of the

alleged accident, as shown in the claim petition. So, by

virtue of the Sarlaverma Vs. Delhi Transport Corporation

Ltd., reported in 2009 ACJ 1298 the multiplier applicable

is 18. So the loss of future earning is works out as under;

     Rs.6,000X12X18X8/100=1,03,680/-.

     Hence, the petitioner is entitled for Rs.1,03,680/-

for the above head.
 44                 (SCCH-8)                M.V.C.2094/2014 to
                                                 2096/2014



     e) Loss of amenities, conveyance, food and

nourishment, attendant charges:


     The PW2 being the injured in his evidence has

clearly stated that he has sustained the fracture in a

road traffic accident said to have been taken place on 26-

02-2014 and took the treatment as an inpatient for a

period of 6 days and he has also took the treatment as an

outpatient and underwent surgery. The PW4 being the

Orthopaedic Surgeon in his evidence has clearly stated

about the complaints and disability of the petitioner after

the accident. So considering the evidence of PW2 and

PW4 and duration of treatment as well as the complaints

and disability of the petitioner after the accident, it is just

and necessary to grant Rs.20,000/- for the above head, it

will meet the ends of justice. So Rs.20,000/- is granted

for the above head.

     f) Future medical expenses:

     The PW2 being the injured in his evidence has

clearly   stated    that   he   has   sustained   fracture   of
 45              (SCCH-8)                  M.V.C.2094/2014 to
                                                2096/2014



dislocation of left wrist and left ribs fracture as well as

facial injury and underwent surgery. So, Rs.25,000/- to

Rs.30,000/- is required for future medication. The PW4

being the Orthopaedic Surgeon in his evidence has stated

that one more surgery is required for removal of

implants, but in his cross examination has categorically

admitted that the x-ray film which belongs to the

petitioner reflects no implants in situ and one more

surgery is not required for removal of implants. So, the

admission of the PW4 clearly reflects that no implants

are in situ. So, question of one more surgery for removal

of implants does not arise. Therefore, no amount is

granted for the above head.

     32. Thus the total award stands as follows:

      1. Pain and suffering         Rs.     40,000-00
      2. Loss of income during Rs.   18,000-00
      laid up period
      3. Medical expenses      Rs. 1,98,424-00
      4. Loss of future earning     Rs. 1,03,680-00
      5.Loss     of     amenities, Rs.      20,000-00
      conveyance,     food    and
      nourishment,      attendant
      charges etc.
 46              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014



      6. Future medical expenses           Nil
                       Total        Rs. 3,80,104-00



     33. Issue No.2 in MVC 2096/2014:

     The PW3 being the injured in MVC 2096/2014 in

his evidence has clearly stated that on 26-02-2014 at

about 4.15 p.m., he was proceeding as a loader and

unloader in a lorry bearing No.KA-41-A-8748, the driver

of the said lorry has drove the same in a rash and

negligent manner, without observing the traffic rules and

regulations lost the control over the lorry and dashed

against the road side tree. Due to the said impact he was

sustained the following injuries;


     1) Contusion over the right knee joint on
        lateral aspect, measuring 2x2 cms, X-ray
        of right knee joint shows fracture of
        medial tibial condyle.

     2) Contusion over the right arm on lateral
        aspect in the middle 1/3rd, measuring
        2x2 cms.

     34. So, immediately he was shifted to Sri Lakshmi

Hospital, wherein he took the treatment, during the
 47              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



course of treatment suturing was done and he was taken

incentive treatment till 03-03-2014 and discharged with

an advice for follow up treatment. So, he has spent

Rs.1,50,000/-   towards    hospitalization   and   medical

expenses.


     35. Prior to the accident he was hale and healthy

working as a loader and unloader by getting monthly

income of Rs.10,000/-, due to the accidental injuries, he

was undergoing deep mental shock and agony and he

cannot lift weight nor able to do the work as before. Due

to the fracture of right medical tibial condyle, he could

not squat on the floor and his right leg became weak,

even he could not walk for long distance nor climb stair

case. The PW3 in his cross examination has denied that

he has sustained only simple injuries and created the

documents and medical bills in order to get the

compensation and he has admitted that he has not

produced any document to show that he was working as

a loader and unloader.
 48               (SCCH-8)                   M.V.C.2094/2014 to
                                                  2096/2014



      36. The PW4 being the Orthopaedic Surgeon at

Lakshmi Hospital, Magadi main road, Bangalore in his

evidence has stated that the petitioner has met with an

accident on 26-02-2014 and sustained the following

injuries;


      1) Closed fracture medial condyle tibia right leg.

      c) Contusion right knee.


      37. So, he was treated in form synthetic cylinder

cast right leg and he was discharged on 03-03-2014. He

has re-examined the petitioner on 08-07-2014 for the

purpose of disability assessment and found the following

difficulties;


            Stiffness   of   left   hip,   difficulty   in
      carrying out activities of daily living and
      complete union of fracture and patient
      complains of pain in right knee.

      38. So, the petitioner has sustained permanent

functional disability of 48% of right lower limb and 16%

of whole body and one more surgery is required for
 49               (SCCH-8)              M.V.C.2094/2014 to
                                             2096/2014



removal of implants. The PW4 in his cross examination

has admitted that the fracture is united and he has

denied that the petitioner has not facing any difficulties

for his day to day work and he has stated more disability

in order to help the petitioner to get more compensation

and the petitioner has not sustained the permanent

disability due to the accidental injuries and he has

admitted that the x-ray films are not reflects about the

implants and one more surgery is not required for

removal of implants and as per the CT scan, the

petitioner is not facing any problems in respect of the

head injuries.


     39. The PW3 being the injured in his evidence has

clearly stated about the injuries sustained by him in the

accident and also stated about the difficulties facing by

him after the accident as well as treatment taken by the

petitioner as an inpatient and outpatient. The PW4 being

the Orthopaedic Surgeon in his evidence has clearly

stated about the complaints and disability of the
 50              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



petitioner after the accident. So, the evidence of the PW4

corroborate the evidence of the PW3. Ex.P16 is the

wound certificate issued by the Sri Lakshmi Multi

Speciality Hospital, Bangalore clearly reflects that the

petitioner has sustained the following injuries;

     1) Contusion over the right knee joint on
        lateral aspect, measuring 2x2 cms, X-ray
        of right knee joint shows fracture of
        medial tibial condyle.

     2) Contusion over the right arm on lateral
        aspect in the middle 1/3rd, measuring
        2x2 cms.

     40. So, the above said injury No.1 is grievous in

nature and injury No.2 is simple in nature. Ex.P17 is the

discharge summary clearly reflects that the petitioner

soon after the accident has got admitted to the Sri

Lakshmi Multi Speciality Hospital, wherein he took the

treatment as an inpatient from 26-02-2014 to 03-03-

2014 for a period of 6 days, as he has sustained

communited fracture of right medical tibial condyle

involving articular surface and contusion injury right

knee. So, he was treated symptomatically and he was
 51               (SCCH-8)                  M.V.C.2094/2014 to
                                                 2096/2014



hemodynamically stable and discharged with an advice

for follow up treatment, as he has sustained the injury in

a road traffic accident near Maranahalli, Tavarekere,

Magadi main road at 4.30 p.m., on 26-02-2014. Ex.P11

is the medical bills clearly reflects that the petitioner has

took the treatment in connection of the injuries sustained

by him in a road traffic accident. Ex.P22 is the case sheet

reflects that the petitioner has sustained grievous injury

in a road traffic accident and took the treatment as an

inpatient. So, the documents marked as Ex.P11, Ex.P16,

Ex.P17 and Ex.P22 are clearly reflects that the petitioner

has took the treatment in connection of the injuries

sustained   by   him   in   a   road   traffic   accident.   So

considering the injuries sustained by the petitioner in a

road traffic accident and the evidence of PW3 and PW4 as

well as duration of treatment, it is just and necessary to

grant just compensation to the petitioner in the following

heads;
 52              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



     a) Pain and suffering.

     The PW3 being the injured in his evidence has

clearly stated that he has sustained communited fracture

of right medical tibial condyle involving articular surface

and contusion injury right knee in a road traffic accident

said to have been taken place on 26-02-2014 and took

the treatment as an inpatient for a period of 6 days. PW4

being the Orthopaedic Surgeon in his evidence has

clearly stated about the complaints and disability of the

petitioner after the accident. So considering the evidence

of the PW3 and PW4 and the injuries sustained by the

petitioner as well as the duration of treatment he would

have sustained pain and agony for which, it is just and

necessary to award compensation of Rs.40,000/- for the

above head, it will meet the ends of justice. Hence,

Rs.40,000/- is awarded for the above head.

     b) Loss of income during laid up period:

     The PW3 being the injured in his evidence has

stated that prior to the accident he was hale and healthy

working as a loader and unloader by getting monthly
 53              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



income of Rs.10,000/-, after the accident he could not do

the work as before. But the reasons best known to him

has not examined any independent witness nor examined

the person under whom he was working as a loader and

unloader to show that prior to the accident he was

working as a cleaner by getting monthly income of

Rs.10,000/-. In the absence of the materials on record, it

is very difficult to believe the income of the petitioner as

alleged in the claim petition. So considering the age and

skill of the petitioner and the present life condition, it is

just and necessary to consider the monthly notional

income of Rs.6,000/- it will meet the ends of justice.

Ex.P16 is the wound certificate clearly reflects that the

petitioner has sustained grievous injuries. Ex.P17 is the

discharge summary clearly reflects that he has sustained

the grievous injuries and took the treatment as an

inpatient for a period of 6 days. So, the petitioner might

have lost income for a period of three months. So three

months income comes to Rs.18,000/-. So Rs.18,000/- is

granted for the above head.
 54              (SCCH-8)               M.V.C.2094/2014 to
                                             2096/2014




     c) Medical expenses

     The PW3 being the injured in his evidence has

stated that he has sustained communited fracture of

right medical tibial condyle involving articular surface

and contusion injury right knee in a road traffic accident

and took the treatment as an inpatient by spending huge

amount of Rs.1,50,000/- and he lost some of the medical

bills, but on record the petitioner has produced the

medical bills worth of Rs.1,33,546/-. Though the learned

counsel for the respondent has disputed the medical bills

produced by the petitioner, but nothing is placed on

record to show that the medical bills produced by the

petitioner are created nor fabricated in order to get the

compensation. So, in the absence of the materials on

record, it is clear that the petitioner has took the

treatment in connection of the injuries sustained by him

in a road traffic accident. Therefore, Rs.1,33,546/- is

granted for the above head.
 55              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



     d) Loss of future earning:

     The PW3 being the injured in his evidence has

clearly stated that he has sustained communited fracture

of right medical tibial condyle involving articular surface

and contusion injury right knee in a road traffic accident

said to have been taken place on 26-02-2014 and took

the treatment as an inpatient for a period of 6 days, but

inspite of best treatment, he could not come to the

normal position. The PW4 being the Orthopaedic Surgeon

in his evidence has clearly stated about the complaints

and disability of the petitioner after the accident.

According to him the petitioner has sustained permanent

functional disability to an extent of 48% of right lower

limb and 16% of total body. The PW4 in his cross

examination has admitted that the fracture is united and

x-ray films are not reflects that implants in situ and one

more surgery is not required for removal of inplants. So,

considering the evidence of the PW3 and PW4 and the

medical records and the injuries sustained by the

petitioner and duration of treatment as well as his
 56              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



avocation, it is just and necessary to consider the

disability of 9% of the whole body instead of 16%, it will

meet the ends of justice. So, his income is already

considered as Rs.6,000/- per month. Ex.P16 and Ex.P17

are the wound certificate and discharge summary clearly

reflects that as on the date of the alleged accident, the

petitioner was aged about 18 years. The petitioner in his

claim petition has clearly stated that as on the date of the

alleged accident, he was aged about 19 years. Therefore,

the petitioner age is taken into consideration as 19 years

as on the date of the alleged accident, as shown in the

claim petition. So, by virtue of the Sarlaverma Vs. Delhi

Transport Corporation Ltd., reported in 2009 ACJ 1298

the multiplier applicable is 18. So the loss of future

earning is works out as under;

     Rs.6,000X12X18X9/100=1,16,640/-.

     Hence, the petitioner is entitled for Rs.1,16,640/-

for the above head.
 57                (SCCH-8)                   M.V.C.2094/2014 to
                                                   2096/2014



     e) Loss of amenities, conveyance, food and

nourishment, attendant charges:


     The PW3 being the injured in his evidence has

clearly stated that he has sustained the communited

fracture of right medical tibial condyle involving articular

surface and contusion injury right knee in a road traffic

accident said to have been taken place on 26-02-2014

and took the treatment as an inpatient for a period of 6

days and he has also took the treatment as an

outpatient. The PW4 being the Orthopaedic Surgeon in

his evidence has clearly stated about the complaints and

disability   of   the   petitioner   after   the   accident.   So

considering the evidence of PW3 and PW4 and duration

of treatment as well as the complaints and disability of

the petitioner after the accident, it is just and necessary

to grant Rs.15,000/- for the above head, it will meet the

ends of justice. So Rs.15,000/- is granted for the above

head.
 58              (SCCH-8)                  M.V.C.2094/2014 to
                                                2096/2014



     f) Future medical expenses:

     The PW3 being the injured in his evidence has

clearly stated that he has sustained grievous injuries in a

road traffic accident said to have been taken place on 26-

02-2014 and took the treatment as an inpatient for a

period of 6 days. The PW4 being the Orthopaedic Surgeon

in his evidence has stated that the petitioner has

sustained fracture and underwent surgery and implants

in situ. So, one more surgery is required for removal of

implants, but in his cross examination has categorically

admitted that the x-ray film which belongs to the

petitioner reflects no implants in situ and one more

surgery is not required for removal of implants. So, the

admission of the PW4 clearly reflects that no implants

are in situ. So, question of one more surgery for removal

of implants does not arise. Therefore, no amount is

granted for the above head.

     41. Thus the total award stands as follows:

      1. Pain and suffering         Rs.     40,000-00
      2. Loss of income during Rs.          18,000-00
 59              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



      laid up period
      3. Medical expenses           Rs. 1,33,546-00
      4. Loss of future earning     Rs. 1,16,640-00
      5.Loss     of    amenities, Rs.      15,000-00
      conveyance,    food     and
      nourishment,      attendant
      charges etc.
      6. Future medical expenses             Nil
                       Total        Rs. 3,23,186-00



     42. The respondent No.2 being the insurer of the

offending vehicle in its written statement has taken up

the contention that there is a 7 days delay in lodging the

complaint. If at all the offending vehicle was involved in

the accident and the petitioners were sustained the

injuries in a road traffic accident said to have been taken

place on 26-02-2014, the owner of the vehicle would have

lodged the complaint. So, non filing of the complaint

within 7 days from the date of accident, it is clear that

the petitioners have falsely implicated the vehicle and

filed the false complaint against the offending vehicle

driver in order to get the compenstion. Ex.P4, Ex.P13 to

Ex.P17 are clearly reflects that the petitioners soon after
 60               (SCCH-8)                M.V.C.2094/2014 to
                                               2096/2014



the accident were got admitted to the Sri Lakshmi Multi

Speciality Hospital in which they took the treatment from

26-02-2014 in connection of the injuries sustained by

them in a road traffic accident said to have been taken

place on 26-02-2014 near Maranahalli, Tavarekere,

Magadi main road, as the lorry hit to the tree. Thereby,

the petitioners were sustained the injuries. Thus, the

recitals as appeared in the wound certificate and

discharge summary clearly reflects that the petitioners

were sustained the injuries, when the lorry driver has

driven the same with high speed in a rash and negligent

manner,    without    observing   the   traffic   rules   and

regulations hit to the tree.


     43. Though, the respondent has denied the accident

said to have been taken place on 26-02-2014, but the

reasons best known to him has not examined the driver

of the lorry to show that as on the date of the alleged

accident, the offending vehicle was not involved in the

accident and moreover Ex.P3 is the panchanama drawn
 61              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



by the I.O., in which it is clear that the I.O., has shown

the vehicle in the panchanama on the ground that as on

the date of the drawing of the panchanama, the vehicle

was on the spot and they seized the said vehicle. If at all

the vehicle was not involved in the accident question of

seizing the vehicle from the spot by the I.O., does not

arise, as the S.H.O., has shown the vehicle in Ex.P3. If at

all the vehicle was not involved in the accident and it was

not on the alleged spot nothing is prevented to the

respondent to summon the S.H.O., who drawn the

panchanama to show that the offending vehicle was not

at all involved in the accident nor on the spot as on the

date of the panchanama, if that is so, the matter would

have different. But, the reasons best known to the

respondent has not taken any steps to examine either the

S.H.O., nor the I.O., who conducted the investigation.

Now, the question is whether this Tribunal can reject the

claim petition only on the ground that there is a 7 days

delay in lodging the complaint. So, this Court drawn its

attention on the decision of the Hon'ble Supreme Court
 62              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



reported in (2011) 4 SC 693 in between Ravi vs.

Badrinarayan and others reads like thus;

          A. Motor Vehicles Act, 1988 - Ss. 166,
     168 and 173 - Delay in lodging FIR -
     Dismissal of claim petition based thereon -
     Legality of - Held, delay in lodging FIR
     Cannot be a ground to doubt claimant's
     case in genuine case - In Indian conditions,
     it is not expected that a person would to
     rush to police station after accident -
     Treatment of victim is given priority over
     lodging FIR - Kith and kin of victim are not
     expected     to   act    mechanically      with
     promptitude in lodging FIR - Hence, delay
     in lodging FIR not a ground to dismiss
     claim petition - Criminal Procedure Code,
     1973, S.154.

     44. On careful perusal of the above said decision, in

the said decision the accident was taken place on 07-10-

2001 at about 8.30 a.m., the father of the claimant has

filed the complaint on 26-01-2002 at about 12.15 p.m.,

almost 3 months 19 days delay in lodging the complaint.

The claim petition filed by the petitioner was came to be
 63              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



dismissed by the Tribunal on the ground that there is a

delay in lodging the complaint and the claimant has fail

to establish on the fateful day, the truck was involved in

the motor road accident causing the injuries to him.

Thereby, the claimant has filed the appeal before the

Hon'ble High Court of Judicature of Rajasthan, Jaipur

and the said appeal was also came to be dismissed.

Thereby, the claimant has filed the appeal before the

Hon'ble Supreme Court. Thus, their lordship held that

delay in lodging the FIR cannot be a ground to doubt

claimant's case in genuine case and it is not expected

that a person would to rush to police station after

accident. Kith and kin of victim are not expected to act

mechanically with promptitude in lodging FIR. So, delay

in lodging FIR is not a ground to dismiss claim petition.

Thereby, the appeal was came to be allowed.

     45. In the instant case, the wound certificate and

discharge summary clearly reflects that the petitioners

soon after the accident were got admitted to the Sri

Lakshmi Multi Speciality Hospital till 03-03-2014 and
 64              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



04-03-2014. Ex.P1 reflects that the police have recorded

the statement of one K.N. Kumar who is the injured on

03-03-2014, that itself is clear when the petitioners were

in the treatment at Sri Lakshmi Multi Speciality Hospital,

the S.H.O., has recorded the statement of the injured,

that itself is clear that soon after the accident, the

petitioners were got admitted to the Sri Lakshmi Multi

Speciality Hospital and took the treatment till 03-03-

2014 and 04-03-2014, during their hospitalization, the

police have recorded the statement of one K.N. Kumar

who is the injured in a road traffic accident, that is the

reason why, the delay was caused in lodging the

complaint and the materials on record reflects that the

petitioners were sustained the injuries in a road traffic

accident said to have been taken place on 26-02-2014,

due to the rash and negligent driving of the offending

vehicle driver. So, the decision as stated above is directly

applicable to the case on hand.
 65             (SCCH-8)                M.V.C.2094/2014 to
                                             2096/2014



     46. The learned counsel for the respondent while

canvassing his arguments has much argued that the

owner of the offending vehicle has not paid the premium

in respect of either cleaner nor the loader and unloader.

Thereby, the respondent No.2 is not liable to pay any

compensation. The RW1 being the Deputy Manager of the

respondent No.2 in his evidence has stated that the

owner of the lorry has not paid the premium in respect of

the cleaner and loader and unloader. Therefore, the

insurance company is not liable to pay any compensation

and the petitioners were not travelling as a cleaner,

loader and unloader in the offending vehicle, they were

travelling as an unauthorised passengers, but the

respondent has not placed any materials to substantiate

its defence. The RW1 in his cross examination has

admitted that as on the date of the alleged accident, the

package policy was in existence, but he has stated that

the policy is not applicable to the loader and unloader,

but it is applicable to third party and he has admitted

that the owner has paid the premium in respect of the
 66              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



cleaner and he has not produced any document to show

that as on the date of the alleged accident, the vehicle

was not having permit nor fitness certificate and they

have not challenged the charge sheet filed against the

offending vehicle driver. So, one thing is clear from the

evidence of the RW1 that the respondent No.1 being the

owner of the offending vehicle has paid premium in

respect of the cleaner and the policy was in existence as

on the date of the alleged accident. Ex.R1 is the policy

copy reflects that the respondent No.2 being the insurer

of the offending vehicle has issued a package policy in

which including the driver, the owner has paid premium

in respect of 5 persons and in Ex.R1 nowhere appears

that the loader and unloader were not covered under the

policy, as the Ex.P1 reflects about the limits of liability

death of or bodily injury to any person so far as it is

necessary to meet the requirements of the Motor Vehicles

Act. So, in which it is clear that if any person was

succumbed or sustained injury in a road traffic accident,

the package policy is covers otherwise question of
 67                (SCCH-8)                M.V.C.2094/2014 to
                                                2096/2014



mentioning in the Ex.R1 as "any person" does not arise.

So, Ex.R1 reflects that the second respondent has issued

a package policy in respect of the offending vehicle in

favour of the respondent No.1.


        47. The learned counsel for the petitioner while

canvassing his arguments has submitted that the

respondent No.2 being the insurer has issued a package

policy in respect of the offending vehicle in favour of the

first respondent. So, the package policy covers the loader

and unloader as well as the cleaner and the said counsel

has drawn the court attention on the decision of the

Hon'ble High Court of Orissa at Cuttack reported in

2014 ACJ 1776 in between Pinkey Naik vs. ICICI

Lombard General Ins. Co. Ltd., and others reads like

thus;


              Motor Vehicles Act, 1988, section 147
        (1) (b) proviso - Motor insurance - Goods
        vehicle - Liability of insurance company -
        Death of coolie travelling in goods vehicle
        for   loading/unloading   goods    when    the
 68                (SCCH-8)                     M.V.C.2094/2014 to
                                                     2096/2014



     vehicle   met       with   accident       -     Tribunal
     directed the insurance company to pay and
     recover on the ground that risk of coolie
     was not covered under the policy - As per
     proviso   to    section      147    (1)       (b)   coolie
     travelling     in    goods         carriage         stands
     automatically covered under the insurance
     policy in respect of goods vehicle and no
     additional premium was required to be pain
     in respect of such a coolie - Whether there
     was breach of policy and Tribunal was
     justified in granting recovery rights to the
     insurance company - Held: No.

     48. On careful perusal of the above said decision, in

the said decision the claimants being the legal heirs of

Sajit alias Ajit Kachhua were filed the claim petition

before the Claims Tribunal and the tribunal held that

Khalasi is not covered under the insurance policy issued

in respect of the said vehicle. Therefore, the insurance

company is not liable to pay the compensation amount

and directed the insurance company to first pay the

compensation amount and to recover the same from the

owner. Thereby, the owner has challenged the same
 69              (SCCH-8)                M.V.C.2094/2014 to
                                              2096/2014



before the Hon'ble High Court and the Hon'ble High

Court held that death of coolie travelling in a goods

vehicle for loading/unloading goods when the vehicle met

with an accident, as per proviso to Section 141 (1) (b)

coolie travelling in goods carriage stands automatically

covered under the insurance policy in respect of the

goods vehicle and no additional premium was required to

be paid in respect of such a coolie. So, the insurance

company is liable to pay the compensation. So, the

appeal filed by the owner was came to be allowed and set

aside the order passed by the Tribunal and directing the

insurance company to pay the compensation awarded by

the Tribunal.


     49. In the instant case also, the second respondent

has issued a package policy and the petitioners while

travelling in the lorry as cleaner, loader and unloader

were sustained the injuries. Therefore, the decision relied

by the learned counsel for the petitioner is directly

applicable to the case on hand.
 70              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



     50. The respondent No.2 being the insurer in its

written statement has admitted about the issuance of the

policy in respect of the offending vehicle in favour of the

first respondent. Ex.R1 is the policy copy in which it is

clear that the policy was valid from 28-09-2013 to 27-09-

2014. The accident was occurred on 26-02-2014. So one

thing is clear that as on the date of the alleged accident

the policy was in existence.


     51. Though, the respondent No.2 has taken up the

contention that as on the date of the alleged accident the

offending vehicle driver was not holding valid and

effective driving licence to drive the same. But the

reasons best known to the respondent No.2 has not

placed any materials on record nor examined any

authority i.e., RTO or ARTO to show that as on the date

of the alleged accident the offending vehicle driver was

not holding valid and effective driving licence and Ex.P6

is the final report filed by the I.O., nowhere discloses that

the offending vehicle driver was not holding valid and
 71              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



effective driving licence as on the date of the alleged

accident. If at all the driver of the offending vehicle was

not holding the valid and effective driving licence the I.O.,

would have charge sheeted against the offending vehicle

driver for the offence punishable under Section 181 of

MV Act. So on record there is no material to show that

the offending vehicle driver was not holding valid and

effective driving licence as on the date of the alleged

accident. So one thing is clear that as on the date of the

alleged accident, the policy was in existence and the

offending vehicle driver was holding valid and effective

driving licence. So, the respondent Nos.1 and 2 are

jointly and severally liable to pay the compensation. But

in view of the valid insurance policy the respondent No.2

alone is liable to pay the compensation to the petitioners

with interest at the rate of 8% p.a. inview of the decision

of the Hon'ble Supreme Court reported in 2012 KLJ

292 from the date of petitions till its realization. Hence, I

am of the opinion that the issue No.2 in all the claim

petitions is answered as partly in the affirmative.
 72              (SCCH-8)                 M.V.C.2094/2014 to
                                               2096/2014



     52. Issue No.3 in all the claim petitions.

     In view of my finding on issue Nos.1 and 2 in all

claim petitions, I proceed to pass the following:


                           ORDER

The claim petitions filed by the petitioners in MVC Nos.2094/2014 to 2096/2014 u/s 166 of the M.V. Act are hereby allowed in part with costs.

The compensation in all the cases has been awarded as mentioned here under:

Compensation Sl. MVC Awarded No. Number (in Rupees) 1 2094/2014 Rs. 4,66,023-00 2 2095/2014 Rs. 3,80,104-00 3 2096/2014 Rs. 3,23,186-00 Interest is granted at the rate of 8% per annum from the date of the claim petitions till the date of payment/bank deposit, in all the claim petitions.

In all the claim petitions, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 73 (SCCH-8) M.V.C.2094/2014 to 2096/2014 being the insurer in all the claim petitions shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petitions till its realisation within a period of 30 days from the date of this order.

On deposit of the compensation amount together with interest in all the claim petitions, 40% of the amount shall be deposited in the name of the petitioners in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of A/c payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.

The expenses to be incurred for future medication in MVC 2094/2014 shall not carry any interest.

Advocate fee is fixed in each of the petition at Rs.1,000/-.

74 (SCCH-8) M.V.C.2094/2014 to 2096/2014 The original judgment copy shall be kept in MVC No.2094/2014 and copy of the same shall be kept in MVC 2095/2014 and 2096/2014.

Draw award accordingly.

Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 07th day of September 2015.

(P.J. Somashekar) XII Addl. Small Causes Judge, Member-M.A.C.T., Bangalore. ANNEXURE List of the witnesses examined on behalf of petitioners:

PW1       Sri Bharath C.V.
PW2       Sri K.N. Kumar
PW3       Sri Purushotham Y.V.
PW4       Dr. Arjun S. Prakash

List of the documents exhibited on behalf of petitioners:

Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama Ex.P4 True copy of Wound certificate Ex.P5 True copy of IMV Report

75 (SCCH-8) M.V.C.2094/2014 to 2096/2014 Ex.P6 True copy of Charge sheet Ex.P7 25 Medical bills amounting to Rs.1,84,543/- Ex.P8 16 Medical prescriptions Ex.P9 16 Medical bills amounting to Rs.1,98,424/- Ex.P10 15 Medical prescriptions Ex.P11 14 Medical bills amounting to Rs.1,33,546/- Ex.P12 12 Medical prescriptions Ex.P13 Discharge summary Ex.P14 True copy of Wound certificate Ex.P15 Discharge summary Ex.P16 True copy of Wound certificate Ex.P17 Discharge summary Ex.P18 Case sheet Ex.P19 3 X-ray films Ex.P20 Case sheet Ex.P21 6 CT Scan and 4 X-ray films Ex.P22 Case sheet Ex.P23 6 CT Scan and 6 X-ray films List of the witnesses examined on behalf of respondents:

RW1 Sri H.B. Guruprasad List of the documents marked on behalf of respondents:

Ex.R1 True copy of Policy (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.