Bangalore District Court
D) At The Time Of Alleged Accident vs No.1 Has Not Adduced Any Evidence On Its ... on 15 March, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 15th day of March, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.4236/2014
Sri. Manikanda. G. @ Manikanda, ... PETITIONER
S/o. Govindaswamy,
Aged about 34 years,
Permanently residing at No.125,
1st Floor, 4th Cross, 5th Main,
Nanjaba Agrahara,
Chamarajpet,
Bangalore - 560 018.
Native place:
Door No.2/135,
Middle Street,
Pudhu Uchimedu,
Kallakurichi Taluk,
Pin: 606 203,
Villupuram.
Tamilnadu.
(By Sri. R. Shivakumar, Adv.,)
V/s
1. United India Insurance ..... RESPONDENTS
Company Ltd.,
Regional Office,
No.25, 1st Floor,
Shankaranarayana Building,
M.G.Road,
Banglaore - 560 001.
2 M.V.C.NO.4236/2014
(SCCH-7)
(Policy No.0904023113P106498684,
Valid from 08.01.2014 to 07.01.2015)
(Insured)
2. Mr. A.R.Mareesan,
S/o. Ramachandran,
No.61/2, 3rd Main Cross,
New Gurappanapalya,
Bangalore - 560 029.
(Insured/Owner)
3. The Branch Manager,
Cholamandalam MS General
Insurance Company Ltd.,
No.135/5, 2nd Floor, 15th Cross,
3rd Phase, J.P. Nagar,
Banglaore - 560 078.
(Policy No.3379/00493785/000/03,
Valid from 30.10.2013 to 29.10.2014)
(Insurer)
4. Mr. Kannan. S.,
S/o. Subbarao,
No.125, 1st Floor,
4th Cross, 5th Main,
Nanjamba Agrahara,
Chamrajpet,
Bangalore - 560 018.
(Insured/ Owner)
(R1- By Sri. Dattatraya. M. Joshi, Adv.,)
(R2- By Sri. V.Giri Kumar, Adv.,)
(R3 and R-4 Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 to 4 under Section 166 of the Motor Vehicles 3 M.V.C.NO.4236/2014 (SCCH-7) Act, 1989, praying to award compensation of Rupees 7,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 06.09.2014 at about 7.00 p.m., he was driving the Lorry bearing Registration No.KA-01-AA-3420 on Bangalore- Hosur NH-7 Road, carefully and cautiously observing all the traffic rules and regulations, when he reached near LA Classis Hotel, Old Check Post, Attibele, Anekal Taluk, Bangalore. At that time, all of a sudden the driver of the another Lorry bearing Registration No.TN-25-T-4591 took the Lorry U turn mindlessly and recklessly without blowing or giving any signal or indications in a rash and negligent manner, endangering to human life, neglecting all the traffic rules and the regulations and lost control of his Lorry and hit him driving Lorry bearing Registration No.KA-01-AA-3420. Due to tremendous impact, he sustained multiple severe injuries on his head, hands, legs, face and other parts of the body.
b) Immediately, he was shifted to Blossom Hospital, Bangalore for treatment and admitted as an inpatient from 06.09.2014 to 27.09.2014. During the course of Hospitalization, after all the relevant investigations, found the injuries, i.e., Open wound over right lower leg (1/3rd) with loss of skin and exposure of bone, muscles and tendons, Laceration over left hand and Laceration over right hand near elbow joint. During the course of treatment wound debridement + SSG done on 19.09.2014 under SA. He took operative and inpatient treatment for the accidental injuries in the said Hospital. Even today, he is taking treatment as 4 M.V.C.NO.4236/2014 (SCCH-7) per Doctor advise. He spent Rupees 90,000/- towards treatment, medicines, nourishment and conveyance.
c) At the time of accident, he was working as a Lorry driver and earning a sum of Rupees 12,500/- per month. Due to accidental injuries, he was not able to attend to his work. So, he lost that income.
d) He was working as a driver with the Respondent No.4 Mr. Kannan.S. at the time of accident. This accident was also occurred during the course of employment. Hence, the insurer and the owner of the Lorry bearing Registration No.KA-01-AA- 3420 were made parties as Respondent No.3 and Respondent No.4 respectively, in the main petition.
e) Therefore, the accident in question is due to rash and negligent driving of the driver of the Lorry bearing Registration No.TN-25-T-4591, hence, the Respondents No.1 and 2 being the Insurer and the owner of the vehicle are jointly and severally liable for the payment of compensation. Hence, this petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 16.06.2015 passed on I.A.No.I, the written statement filed by the Respondent No.1 is taken on file.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, inspite of giving sufficient opportunities, the Respondent No.2 has not filed the written statement.
5 M.V.C.NO.4236/2014(SCCH-7)
5. Though the notice was duly served on the Respondents No.3 and 4, they were remained absent and hence, they are placed as exparte on 01.12.2014 and 21.02.2015, respectively.
6. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is not maintainable either in law or on facts.
b) The amount of compensation claimed in Column No.21 of the claim petition of Rupees 7,00,000/- is quite fanciful and whimsical, in fact, the Petitioner is not entitled for any compensation at all.
c) At the time of alleged accident, the driver of the offending vehicle has not possessed the effective valid driving licence. Hence, it has no liability to pay compensation to the Petitioner.
d) At the time of alleged accident, the driver of the Lorry bearing Registration No.KA-01-AA-3420 was holding valid driving licence or not is in question.
e) The insured/owner does not have proper and valid FC and permit to use vehicle on the road. Further, he has not obtained the FC and permit to the vehicle in question. The vehicle cannot be used on the road, without having proper FC and permit and hence, it is not liable to indemnify the insured of the vehicle in question. Further, the owner of the offending vehicle was not having permit to use the vehicle particularly in Karnataka area. Hence, he has violated the terms and conditions of the policy. It is 6 M.V.C.NO.4236/2014 (SCCH-7) not liable to indemnify the owner of the vehicle and not liable to pay any compensation to the Petitioner.
f) The alleged accident said to have been occurred on 06.09.2014 at about 7.00 p.m., and the complaint was lodged on 07.09.2014, there was delay in lodging the complaint and the delay of 7 days was not properly explained.
g) The Respondent/insured not informed the details of the accident to the insurer as required under Section 134 of M.V. Act and violated the conditions of agreement of Insurance Policy issued to him by the Respondent No.1, as such, it is not liable to indemnify the insured under the said Insurance Policy. Therefore, third party claim against the insurer of the vehicle is not sustained in the given facts and law narrated above and the liability of it may be absolved by awarding exemplary costs, in the interest of justice.
h) The Police Authorities have not informed the matter as required under Section 158(6) of M.V. Act, as such, the M.A.C.T. has to dismiss the claim petition against it by observing the lacuna of the Police Authorities in order to render fair justice in the matter to safeguard the misuse of public money by filing fictitious and inappropriate claim for compensation against the Insurance Company in the interest of justice.
i) In the changed circumstances of the case, it may be permitted to file additional Written Statement, at a later stage.
j) It craves leave of this Hon'ble Tribunal U/s 170 of the M.V. Act, to urge the grounds, that are expressly open for insured, if, the insured fails to contest the proceedings and the liability of 7 M.V.C.NO.4236/2014 (SCCH-7) it, if any, is subject to the terms and conditions of the Policy and as per the provisions of the Motor Vehicles Act, 1988 and rules framed there under.
k) In the event of grant of compensation, the rate of interest may not exceed 6% p.a., as per the law declared by the Hon'ble High Court of Karnataka in Geeta's Case.
l) The copy of the policy in respect of the vehicle in question is annexed to the Written Statement.
m) The Petitioner is put to strict proof that, he has not filed any other claim petition on the alleged accident either before this Hon'ble Court or before any other Hon'ble Court/Forum at any place on the same cause of action of the accident. Hence, prayed to dismiss the claim petition with costs.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Lorry bearing Reg.No.TN-25-T-4591 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
8 M.V.C.NO.4236/2014(SCCH-7)
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.15. On the other hand, the Respondent No.1 has not adduced any evidence on its behalf.
9. Heard the arguments.
10. In support of the submission, the Learned Counsel appearing for the Petitioner Sri.R.Shivakumar, has placed reliance upon the decisions reported in,
i) 2015 ACJ 2463 High Court of Karnataka, Gulbarga Bench (Managing Director, North East Karnataka Road Trans. Corpn. V/s. Mohammed Imaran), wherein, it is observed that, Motor Vehicles Act 1988 Section173(1) and Civil Procedure Code, 1908, Order 41, Rule 33-Appeal-Powers of appellate Court-Just compensation- Boy aged 16 suffered traumatic, brain injury and fractures of both femurs which are mal-united-injured suffered hyper spasticity of all four limbs making him virtually immobile and he would require constant attendant throughout his life-Tribunal awarded Rupees 10,65,400/- Corporation filed appeal challenging the award but, no appeal or cross-objection by the claimant for enhancement of compensation -
Appellate Court found that, claimant who is reduced to a vegetative state is entitled to just compensation of Rupees 16,43,400/- Whether this is a fit case in which discretionary powers vested in appellate court under Order 41, Rule 33 of Civil Procedure Code be exercised to do complete justice to the claimant-Held: Yes.
9 M.V.C.NO.4236/2014(SCCH-7) Quantum-Injury-Head and leg-Traumatic brain injury and fractures of both femurs- injured remained impatient for 4 months but, still both femurs are mal-united and injured has hyper spasticity of all four limbs and his knees can be flexed only up to 20 degrees-injured a boy aged 16 suffered 90 percent disability-injured has injured cannot stand or walk or sit or squat and would require an attendant for all his needs and to look after him throughout his life-Tribunal assessed functional disability at 80 percent and awarded Rupees 18,65,000-Appellate Court allowed Rupees 1,50,000/- for Orthopedic Surgeon Rupees 3,90,000/- for medical expenses, Rupees.75,000/- for future medical treatment, Rupees 5,18,400/- for loss of future earnings, Rupees 25,000/- for attendant charges during laid up period Rupees 2,50,000/- for future attendant charges, Rupees 15,000/- for conveyance, Rupees 20,000/- for food and nourishment, Rupees,100,000/-, for loss of amenities and pleasures in future life and Rupees 1,00,000/- for loss of marriage prospects-Award of Rupees 10,65,400 enhanced to Rupees 16,43,400/-.
ii) 2012 ACJ 191 Supreme Court of India (Laxman V/s. Divisional Manager, Oriental Insurance Company Ltd., and Another), wherein, it is observed that, Motor Vehicles Act 1988 Section 169 (1) - claims Tribunal duty of - Proactive approach - Personal suffering of survivors of road accident who are disabled are manifold - Cost of medical treatment and care is very high Large number of victims of accidents are pedestrians, children's, women and illiterate persons and majority of them cannot due to ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the 10 M.V.C.NO.4236/2014 (SCCH-7) wrongdoer in adequate measure -
Insurance Companies with which offending vehicles are insured usually have battery of lawyers to contest claim petitions by raising all possible technical objections for ensuring that, their clients are either completely absolved or their liabilities, minimized - Delay and litigations expenses make the awards of tribunals meaningless - Tribunals should adopt a proactive approach and ensure that, claims are disposed of urgently and compensation awarded inadequate measure including pecuniary and non-pecuniary damages.
Motor vehicle Act, 1988, Section 168(1) - Just compensation - Award of compensation more than claimed - Whether compensation more than claimed by the claimant can be awarded - Held yes there is no bar in the Act. (2003 ACJ 12 (SC) followed).
Quantum - Injury - Leg, abdomen and pelvis - fracture of ramus of both pelvic bones and injuries in right leg and urethra
- Injured remained Hospitalized for a month in 3 Hospitals on different occasions
- Right side movement of injured is restricted by 30 per cent and there is wasting of right leg muscles by 3 cm -
Injured aged 24, carpenter, earning Rupees 5,000/- p.m., suffered 26 per cent disability of right lower limb, 25 percent disability due to urethral injury and 38 per cent disability to the whole body - injured is having altered gait - finding difficulty in sitting cross-legged or squat and has difficulty in passing urine - injured will not be able to work as carpenter or do any manual work - Tribunal awarded Rupees 45,000/- which was enhanced to Rupees 76,000/- by the High Court - Apex Court allowed Rupees 3,32,640/- for loss of future earnings, Rupees 5,000/- for loss of 11 M.V.C.NO.4236/2014 (SCCH-7) income, Rupees 1,50,000/- for future medical expenses, Rupees 1,50,000/- for pain, suffering and trauma, Rupees 2,00,000/- for loss of amenities including loss of prospects of marriage - Award of Rupees 76,000/- enhanced to Rupees 8,37,640/-.
Quantum-Interest-Tribunal allowed interest at the rate of 8 per cent from the date of application till realization - High Court reduced the rate to 6 per cent - Apex Court restored the rate of 8 per cent.
iii) ILR 2004 KAR 2471 (K.Narasimha Murthy V/s. The Manager, M/s. Oriental Insurance Company Ltd., Bangalore and Another), wherein, it is observed that, (A) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - Duty of Courts and Tribunal while considering deprivation - HELD - They should have due regard to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages.
(B) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - DEPRIVATION - Three consequences are (a) loss of earning and earning capacity (b) expenses to pay other for what otherwise he would do for himself
(c) loss or diminution in full pleasures and joys of living. There should be serious and honest attempt to award damages as far as many can compensate loss. Loss of curing and earning should also be adequately compensated.
12 M.V.C.NO.4236/2014(SCCH-7) (C) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INQUIRY CASES - COMPENSATION - The injured has to be compensated (1) for pain and suffering (2) for loss of amenities (3) shortened expectation of life if any (4) loss of earnings or loss of earning capacity or in some case for both and (5) Medical treatment and other special damages.
(D) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - RIGHT OF TORTFEASOR TAKING OVER LIABILITY - TORTFEASOR OR THE PERSON WHO HAS TAKEN OVER THE LIABILITY OF THE TORTFEASOR IN TERMS OF AND UNDER THE ACT - Has no right to dictate or cannot dictate that, the injured person should do some other work, manual or other wise, irrespective of the pain and discomfort in order to minimize his or its liability.
(E) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - INJURED PERSON -
BASIC HUMAN RIGHTS OF THE INJURED PERSON - Tortfeasor or the person who has taken over liability insisting the injured to do work, manual or clerical or otherwise, to reduce his or its liability is not correct and such insistence or asking the injured to work with pain or discomfort is violation of basic human rights of the injured person.
(F) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - LOSS OF EARNINGS - To determine the loss of earnings, the Court must firs decide what the claimant would have been earning if the accident had not happened, allowing for any future increase or decrease in the rate of earnings. It is also necessary to decide how long the loss will continue, whether there is incapacity for life 13 M.V.C.NO.4236/2014 (SCCH-7) or for a shorter period. An estimate of the amount which the claimant could still earn in future, notwithstanding disabilities sustained by him in the accident to be calculated.
(G) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY CASES - MEDICAL AND NURSING EXPENSES - Court must find as a fact what expenses have already been incurred and must estimate from the evidence the expenses which will be incurred in future.
(H) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY - FUTURE LOSS OF INCOME -
Whether the Court should take into account only the salary earned by the appellant on the date of accident on the date of his discharge from service or the future prospects of the claimants earning more income way of periodical increments, regular promotions revisions of salary etc., HELD - The Court can taken into account the future prospects of the injured or the deceased of earning more income by way of promotions.
(I) MOTOR VEHICLES ACT, 1988 (59/88) - SECTION 173 - PERSONAL INJURY - PERMANENT DISABILITY -
Claimant has become very much dependent upon others even for maintaining his physical mobility. His freedom of movement is drastically impaired and arrested.
Claimant is denied enjoyment and pleasures of life including normal sex life. Claimant has to live the rest of his life with frustration, disappointment, unhappiness discomfort and inconvenience. Claimant also awarded compensation on various heads like pain and suffering, attendant charges, traveling expenses etc. The 14 M.V.C.NO.4236/2014 (SCCH-7) compensation enhanced from Rupees 1,48,200/- to Rupees 14 Lakhs.
Appeal allowed in part.
iv) 2011 ACJ 1117 Supreme Court of India, New Delhi (S.Perumal V/s. K.Ambika and Another), wherein, it is observed that, Evidence-Disability certificate and radiologist's report-Appreciation of-injured- claimant sustained fracture of ribs and produced radiologist's report of a Hospital- Discharge report of the Hospital mentions that, claimant had swelling, tenderness and creptus right of chest and had rib-
fractures-Whether Tribunal was justified to discarding the report on the ground that, claimant had not mentioned the name of that, Hospital in his claim application-Held:
no.
Quantum-Injury-Chest and eyebrow- Fracture in 5th to 8th right ribs and multiple injuries to eyebrow and all over the body- injured remained Hospitalized for 10 days in 2 Hospitals-Fracture of injured was malunited-injured has pain and swelling in right side chest wall, difficult in breathing, often gets respiratory infection, cannot do hard work and cannot bend and lift heavy weight-injured a labourer in poultry form, getting Rupees 6,500/- per month suffered 25 percent permanent disablement-
Tribunal awarded Rupees 25,300/-High Court found that, injured has simple injuries and rejected his appeal for enhancement-Apex Court assessed income of the injured t Rupees 4,500 per month and allowed Rupees 2,00,000/- towards loss of earning capacity, Rupees,13,500/- pain and sufferings, Rupees.10,000/- as transport charges, Rupees 10,000/- for attendants, Rupees 10,000/- for extra 15 M.V.C.NO.4236/2014 (SCCH-7) nourishment and Rupees 50,000/- for loss of amenities-Award of Rupees 25,300/-
enhanced to Rupees 4,43,500/-
Quantum-Interest-Tribunal allowed interest at the rate of 7.5% per annum-
Apex Court allowed interest at 9% from the date of claim application.
v) 2011 AIR SCW 2609 (Nagarajappa V/s. Divisional Manager, Oriental Insurance Company Ltd.,), wherein, it is observed that, Motor Vehicles Act (59 of 1988), S. 168 - Compensation - Loss of future income - Claimant working as coolie -
Suffering permanent gross deformity of his left forearm wrist and hand and shortening of left upper limb - Deformity severely affecting his ability to perform his work as coolie or do any of the manual work and also his ability to find work - For computing loss of future income - Disability assessed by Doctor of left arm ought to be considered
- and not disability assessed of whole body.
vi) 2005 ACJ 644 (M.V.Chowdappa V/s. Mohan Breweries and Distilleries Ltd., and Another), wherein, it is observed that, Quantum - Injury - Principles of assessment- Permanent disability - Medical evidence that, injured suffered 90 per cent permanent disability to whole body -
Whether the Tribunal was justified in assessing permanent disability at 40 per cent ignoring the expert evidence - Held:
no.
Quantum - Injury - Leg -
Comminuted segmental fracture of both bones of right leg and compound 16 M.V.C.NO.4236/2014 (SCCH-7) comminuted fracture of both bones of left leg - injured suffered 90 per cent permanent disability to whole body but, his functional disability is 100 per cent as injuries have shattered and battered the physical frame of the injured - injured aged 28, agriculturist and milk vendor, earning Rupees 5,000/- p.m., - Tribunal awarded Rupees 2,94,100/- - Appellate Court allowed Rupees 5,18,400/- for loss of earning capacity, Rupees 18,000/- for loss of income, Rupees 25,000/- for pain and suffering, Rupees 10,000/- for transportation charges, Rupees 10,000/- for special food and nutrition, Rupees 50,000/- for loss of amenities of life and loss of marriage prospects, Rupees 80,000/- for medical expenses, Rupees 18,000/- for attendant charges and Rupees 10,000/- for future medical expenses - Award of Rupees 2,94,100/- enhanced in appeal to Rupees 7,39,400/-.
vii) 2015 ACJ 973 High Court of Rajasthan, Jaipur Bench (ICICI Lombard General Ins. Co. Ltd V/s. Raj Kumar and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Sections 173 (1) and 170-Appeal-Maintainability of-
Defenses available to Insurance Company- Tribunal had not granted permission under Section 170 to the Insurance Company-
Whether appeal by Insurance Company challenging the quantum of compensation awarded as the Tribunal is maintainable- Held no.
Evidence-Income-Determination of -
Injured Khalasi-cum-second driver claimed that, he was getting Rupees 12,000 per month-driver of the truck deposed that injured was paid Rupees 9,000/- per month and was given stipend of Rupees 100/- per day-His testimony was not 17 M.V.C.NO.4236/2014 (SCCH-7) shattered in cross-examination-Whether the Tribunal was justified in assessing income of injured at Rupees 4,000/- per month on Tribunal was justified in assessing income of injured at Rupees 4,600/- per month on the basis of minimum wages-Held: no, income assessed at Rupees 12,000/- per month.
Quantum-Injury-Quadriplegia-Fracture of backbone and injuries to hands, legs and chest-Despite undergoing a few operations, injured has been paralyzed from neck below-injured aged 29, driver-cum-khalasi on a truck, drawing Rupees 12,000/- per month has been confined in bed for the rest of his life, totally dependant on others- injured has been reduced to pitiable condition of vegetable state who can never earn, marry, enjoy small things of life and has become an unbearable burden, tormented mentally by his pathetic condition-Tribunal awarded Rupees 10,76,000/- case was remitted back to the Tribunal for Respondent-assessment of compensation and it was awarded Rupees 8,16,000/- for loss of income, Rupees 6,00,000/0 for attendant expenses, Rupees 3,00,000/- for mental loss of income, Rupees 6,00,000/- for attendant expenses, Rupees 3,00,000/- for mental and physical pain, Rupees 3,00,000/- for attendant expenses, Rupees 3,00,000/- for loss of amenities and expectation of life, Rupees 1,00,000/- for medical expenses, Rupees.9,00,000/- for future medical expenses and Rupees 2,12,000/- under other heads, total Rupees 32,28,000-
Appelalte Court allowed Rupees 24,48,000/- for loss of income and Rupees 24,00,000/- for attendant expenses an enhanced the award from Rupees 32,38,000/- to 66,60,000/-.
18 M.V.C.NO.4236/2014
(SCCH-7)
viii) M.F.A. No.2340/2012 (MV) C/w
M.F.A.No.2439/2012 (MV) (The Managing Director, K.S.R.T.C. V/s Sri. Venkatesh and V.Venkatesh V/s Managing Director, K.S.R.T.C.), wherein, it is observed that,
3. Learned Counsel for the claimant submitted that, the compensation awarded under all heads except medical expenses is on the lower side. The claimant is a mason earning Rupees 300/- per day, contrary to the same, the Tribunal has taken the income at Rupees 4,000/-. Hence, he submitted to take reasonable income and enhance compensation suitably.
4. The evidence of P.W.2 and P.W.3 - the Doctors and the medical reports confirm that, the nature of injuries suffered are grievous in nature. The photographs placed before this Court fort files the nature of injuries. P.W.3 has deposed that, the injured has suffered 20% disability to the whole body. Consisting the same, I feel, the compensation awarded under the heads pain and sufferings, loss of amenities and other related heads is just and proper and requires no enhancement.
5. Considering the year of accident, place of residence, cost of living, price index and other relevant factors, I propose to take the income of the claimant at Rupees 250/- per day, which comes to Rupees 7,500/- per month. Hence, the calculation of compensation under the head 'loss of future earnings' would be (7,500/- X 15%) 1125 X 12 X 14 = 1,89,000/-. The same is awarded as against Rupees 1,00,800/- awarded by the Tribunal.
The compensation awarded under the 19 M.V.C.NO.4236/2014 (SCCH-7) head 'loss of income during laid up period' also requires to be enhanced accordingly. Taking the rest period as 4 months Rupees 30,000/- is awarded under the head 'loss of income during laid up period'. The compensation awarded under the head 'food, nourishment and conveyance charges is also enhanced by another Rupees 15,000/-.
6. Accordingly, MFA No.2439/2012 filed by the claimant is allowed in part and MFA No.2340/2012 filed by the Corporation is dismissed. The claimant is entitled for additional compensation of Rupees 1,17,200/- with 6% interest from the date of petition till payment.
Amount in deposit to be transmitted to the MACT.
ix) 2009 ACJ 1298 Supreme Court of India (Sarla Verma and Others V/s. Delhi Transport Corporation and Another), wherein, it is observed that, Motor Vehicles Act, 1988, Section 163-A read with Second Schedule -
Structured formula - compensation -
Second Schedule contains a Table prescribing compensation to be awarded with reference to income and age of the deceased - Table does not specify quantum of compensation for annual income more than Rupees 40,000/- - it simple injuries possible to calculate compensation on structured formula basis where income is more than Rupees 40,000/- p.a. - 2/3rd of annual income multiplied by multiplier applicable to the age of the deceased would be the compensation - Discrepancies/errors in multiplier scale given in Second Schedule pointed out.
20 M.V.C.NO.4236/2014(SCCH-7) Motor Vehicles Act, 1988, Section 163-A read with Second Schedule -
Structured formula - Compensation -
Anomalous position - Apex Court observed that, compensation will be higher where deceased was idle and not having any income than where the deceased was honestly earning income between Rupees 3,000/- and Rupees 12,000/- p.a. Motor Vehicles Act, 1988, Section 166 (1) (c) - Claim application - Legal representative - Father - Deceased is unmarried and he is survived by parents and siblings - Whether mother alone to be considered as a dependant - Held: yes;
father may have his own income and will not be considered as a dependant.
Quantum - Fatal accident -
Principles of assessment - Income-
determination of - Income tax - Deduction of - Whether the amount of income tax is deductible while determining income of the deceased for purposes of computation of dependency - held: yes; where the annual income of the deceased is in taxable range, the words 'actual salary' should be read as 'actual salary less tax.' Quantum - Fatal accident -
Principles of assessment - Future prospects - Whether future increase in income of the deceased be taken into consideration while assessing dependency of the claimants - Held: yes; and whether average of actual income at the time of death and prospective income at the time of judgment in appeal can be taken into consideration even if actual figures are available - Held: no; in view of imponderables and uncertainties and to maintain uniformity, the Apex Court issued a rule of thumb.
21 M.V.C.NO.4236/2014(SCCH-7)
11. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 3,32,481/- along
with interest at the rate of
8% p.a. from the date of
petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
12. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, he met with a road traffic accident on 06.09.2014 at about 7.00 p.m., when he was driving the Lorry bearing Registration No.KA-01-AA-3420 on Bangalore- Hosur N.H-7, carefully and cautiously by observing all the traffic rules and regulations and when he reached near I.A. Classic Hotel, Old Check Post, Attibele, Anekal Taluk, Bangalore, at that time, all of a sudden the driver of the another Lorry bearing Registration No.TN-25-T-4591 took the Lorry 'U' Turn mindlessly and recklessly without blowing or giving any signal or indications in a rash and negligent manner, endangering to human life, neglecting all the traffic rules and regulations and lost control of his Lorry and hit to his Lorry bearing Registration No.KA-01-AA- 3420. He has further stated that, due to tremendous impact, he sustained grievous injuries on his head, hands and face and other 22 M.V.C.NO.4236/2014 (SCCH-7) parts of the body. He has further stated that, immediately after the accident, he was shifted to Blossom Hospital, Bangalore for treatment from 06.09.2010 to 27.09.2014 and during Hospitalization, after all the relevant investigations, found the injuries, i.e., open wound over right lower leg 1/3rd with loss of skin and exposure of bone, muscles and tendons, laceration over left hand and laceration over right hand near elbow joint. He has further stated that, he took conservative and inpatient treatment in Blossom Hospital from 06.09.2014 to 27.09.2014. He has further stated that, after the accident, the Attibele Police Station, Bangalore District, have registered a case in Crime No.248/2014 for the offences punishable under Section 279 and 337 of IPC and MV Act and charge sheeted as against the said driver of the Lorry bearing Registration No.TN-25-T-4591.
13. No doubt, the P.W.1 in his cross-examination has stated that, the complaint has been lodged by his owner Kannan in respect of the alleged accident on 06.09.2014, who is the Respondent No.4. But, it is clear from the documents produced by the Petitioner that, the eye witness has lodged the complaint in respect of the said road traffic accident. He has further stated that, the road on which, he was proceeding, was a width of 3 vehicles were moving at once and the said road was one way and the Police have not enquired him about the accident. He has further stated that, he does not know whether the Police have prepared the spot hand sketch to show the accidental spot and on the accident road, there were movements of more vehicles and he does not know the registration number of the vehicle, which came behind his Lorry. He has further stated that, the Complainant Nagaraj H.M., is a relative and he does not know, who has given information to the said Complainant about the alleged accident.
23 M.V.C.NO.4236/2014(SCCH-7) He has further stated that, full cabin of his vehicle was damaged and the diesel tank of the offending Lorry was damaged. He has further stated that, he has not informed about the accident to the Doctor, as, he was unconscious for 2 days. He has voluntarily stated that, his owner has informed to the Hospital authority about the accident on the same day itself. The Petitioner has not produced the spot hand sketch to show the scene of the accidental spot. The Petitioner has also not examined the Complainant or the eye witness. Further, the P.W.2, who is a treated Doctor, has admitted in his cross-examination that, it is written in Trauma History Sheet, which is available in Ex.P.15 that, the Plaintiff was riding 4 wheelers (Lorry) and was allegedly hit to another Lorry from back side. From this, it appears that, the damages caused to the Lorry and the nature of the vehicles involved in the alleged road traffic accident, are different.
14. But, the non-production of the spot hand sketch by the Petitioner, non-examination of the Complainant or the eye witness by the Petitioner to consider his case as well as the above said oral version of P.W.1, which has been elicited from his mouth by the Respondent No.1 during the course of cross-examination, it cannot be thrown away the above said oral version of P.W.1, which has been stated by him in the examination-in-chief, as, to consider his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Statement relating to Manikandan.G., Ex.P.4 Spot Panchanama, Ex.P.5 MVI Report, Ex.P.6 Wound Certificate, Ex.P.7 Charge sheet, Ex.P.8 Discharge Summary, Ex.P.10 Photographs 3 in numbers and Ex.P.11 C.D. relating to Ex.P.10 Photographs, which clearly disclosed that, the entire negligence is on the part of the driver of the offending Lorry bearing Registration No.TN-25-T-4591 and there was no 24 M.V.C.NO.4236/2014 (SCCH-7) negligence on the part of the Petitioner in driving the Lorry bearing Registration No.KA-01-AA-3420, which was owned by the Respondent No.4 and in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 06.09.2014 to 27.09.2014, i.e., 22 days, he took treatment to the said accidental injuries at Unit of Blossom Multispeciality Hospitals and Day Care Centre Pvt., Ltd., which is clear from the following discussion. Furthermore, the P.W.2 in his cross-examination has clearly stated that, at the time of accident, he was driving the Lorry bearing Registration No.KA-01-AA-3420 from Bangalore to Hosur with a speed of 40 kms. per hour and there was no signal in the accidental spot. He has voluntarily stated that, there was a 'U' Turn at the accidental spot. He has further stated that, after the accident, he was shifted to Blossom Hospital, through 108 Ambulance and he was admitted as an inpatient in the said Hospital for 23 days and during the course of treatment, he underwent operation for 2 times. He has further clearly stated that, at the time of accident, he was alone in his Lorry. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondent No.1 during the course of cross- examination that, after taking complete 'U' turn by the Lorry, he himself dashed his vehicle to the offending Lorry and the driver of the offending Lorry had not taken 'U' turn on signal, but, he had taken 'U' turn by giving proper signal and his vehicle itself dashed to the diesel tank of the offending Lorry. From this, it appears that, though, the P.W.1 has been cross-examined by the Respondent No.1, nothing has been elicited form his mouth to consider its defence. Further, the Respondent No.1 has not adduced any evidence on its behalf to consider its defence.
25 M.V.C.NO.4236/2014(SCCH-7)
15. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, eye witness has lodged Ex.P.2 Complaint before Attibele Police as against the driver of the Lorry bearing Registration No.TN-25-T-4591 by alleging that, when he was on patrolling duty at BETL Route on 06.09.2014 at 7.00 p.m., near Law Classic Hotel, Old Check Post, the Lorry bearing Registration No.TN-25-T-4591 was taking 'U' turn without any indications and dashed to the Lorry bearing Registration No.KA-01-AA-3420, which came from Bangalore and due to the said impact, the front portion of the said Lorry was damaged and the driver of the said Lorry had sustained grievous injuries and he was shifted to Blossom Hospital and the said accident was taken place due to very high speed, rash and negligent manner of driving of offending Lorry bearing Registration No.TN-25-T-4591 by its driver itself and as such, he prayed to take necessary legal action as against the driver of the offending Lorry and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the said offending Lorry for the offences punishable under Section 279 and 337 of IPC under Crime No.248/2014. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Compliant by the eye witness in respect of the said road traffic accident.
16. The contents of Ex.P.3 Statement of the Petitioner, Ex.P.4 Spot Panchanama and Ex.P.5 MVI Report further clearly disclosed that, the said road traffic accident was taken place due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.TN-25-T-4591 by its driver itself, which dashed to the Lorry bearing Registration No.KA-01- AA-3420 while taking 'U' turn on its front portion, which was driven by the Petitioner himself and the driver of the said 26 M.V.C.NO.4236/2014 (SCCH-7) offending Lorry suddenly took 'U' Turn without any indications and without observing the Lorry, which was driven by the Petitioner and due to the said impact, the entire front portion of the Lorry bearing Registration No.KA-01-AA-3420 was damaged and the Petitioner had sustained grievous injuries on his right leg, head, hands and legs and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident. The damages caused to both the Lorries are clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
17. The contents of Ex.P.6 Wound Certificate further clearly disclosed that, with a alleged history of road traffic accident while driving a Lorry hit to another Lorry near Attibelle on 09.09.2014 at 5.30 p.m., the Petitioner was shifted to Unit of Blossom Multispecialty and Day Care Centre Pvt. Ltd., at 6.30 p.m. itself and on examination, it is found that, he had sustained injuries, i.e., open wound over right lower leg with skin and exposure of bones, muscle, lacerated wound over left hand and left fore arm, lacerated wound over right hand and elbow, which are grievous in nature and by admitting as an inpatient from 06.09.2014 to 27.09.2014, i.e., 22 days, he took treatment to the said accidental injuries in the said Hospital.
18. The contents of Ex.P.8 Discharge Summary, Ex.P.10 Photographs 3 in numbers and Ex.P.11 C.D. relating to Ex.P.10 Photographs, further clearly disclosed that, it is diagnosed that, the road traffic accident with right leg digloving injury, the Petitioner was admitted in Blossom Mutispeciality and Day Care 27 M.V.C.NO.4236/2014 (SCCH-7) Centre Pvt. Ltd., on 06.09.2014 itself and one examination, it is found that, he had sustained the injuries, i.e., open wound over right lower leg 1/3rd with loss of skin and exposure of bone, muscles and tendons, laceration over left hand + laceration over right hand near elbow joint. The Petitioner has also examined the treated Doctor as P.W2, who has stated in his examination-in- chief that, on 06.09.2014, the Petitioner came to their Hospital with a alleged history of road traffic accident and he was examined clinically and radiologically and diagnosed to have crush injury of right lower leg, laceration over left hand and right hand near elbow joint and he was operated on 07.09.2014 and 19.09.2014 and discharged on 27.09.2014. The P.W.2 has also produced Ex.P.15 Case Sheet. He has further clearly stated in his cross- examination that, he has issued the Wound Certificate and he has personally treated the Petitioner and he is one of the team of the Doctor, who has treated the Petitioner and the injuries shown in the Wound Certificate disclosed that, there are crush injuries and the Petitioner had not sustained any fracture injury. From this medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries.
19. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.TN-25-T-4591, by its driver itself, the said road traffic accident was taken place on 06.09.2014 at 7.00 p.m. near Check Post, Law Classic Hotel, Bangalore-Hosur Road, N.H-7, when it was suddenly taking 'U' turn without any indication and at that time, the Lorry bearing Registration No.KA-01-AA-3420 came from Bangalore towards Hosur, i.e., the Petitioner and dashed to the said Lorry and due to 28 M.V.C.NO.4236/2014 (SCCH-7) the said impact, the entire front portion of the said Lorry was damaged and the Petitioner had sustained grievous injuries on his right leg, head and legs and as such, after through investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Lorry bearing Registration No.TN-25-T-4591 for the offences punishable under Section 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer as against the Petitioner in Ex.P.7 Charge Sheet about his negligence in the commission of the said road traffic accident.
20. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.TN-25-T-4591 by its driver itself, the said road traffic accident was taken place, which dashed to the Lorry bearing Registration No.KA-01-AA-3420, which was driven by the Petitioner and due to the said impact, the said Lorry caused damages on its front portion and the Petitioner had sustained 3 grievous injuries. The very involvement of the offending Lorry bearing Registration No.TN-25-T-4591 as well as its driver in the said road traffic accident is clearly proved. Accordingly, I answered Issue No.1 in the Affirmative.
21. ISSUE NO.2 :- The Petitioner has produced Ex.P.14 Driving Licence relating to him, which disclosed that, his date of birth is on 02.04.1980. The date of accident is on 06.09.2014. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 35 years old. Hence, the age of the Petitioner is considered as 35 years at the time of accident.
29 M.V.C.NO.4236/2014(SCCH-7)
22. The P.W.1 has stated that, at the time of accident, he was working in the Lorry as a driver with the Respondent No.4 and earning a sum of Rupees 12,500/- per month. As this Tribunal has already observed about the production of Ex.P.14 Driving Licence by the Petitioner relating to him. The above said Police documents clearly disclosed that, at the time of accident, the Petitioner was driving the Lorry bearing Registration No.KA- 01-AA-3420, which was owned by the Respondent No.4. From this, it appears that, at the time of accident, the Petitioner was working as a driver under the Respondent No.4. The Petitioner has also produced Ex.P.9 Salary/Termination Certificate dated 05.06.2015 issued by the Respondent No.4, which disclosed that, the last drawn salary of the Petitioner was Rupees 12,500/- per month. It is only gathered from the contents of Ex.P.9 Salary/Termination Certificate that, at the time of accident, the Petitioner was working as a driver under the Respondent No.4. But, the salary of Rupees 12,500/- per month shown in Ex.P.9 cannot be taken into for consideration as true and correct, as, the Petitioner has not examined the author of the said Ex.P.9, i.e., the Respondent No.4. Further, even though the Respondent No.4 is made as a party to the present petition, he was remained absent and hence, he is placed exparte. Further, the P.W.1 in his cross- examination has clearly stated that, his employer has not given ESI and P.F. benefits to its employer and its employer is having only one Lorry. Even, the Petitioner has not produced the Bank statement relating to him or salary slip or salary register issued by the Respondent No.4 to consider the said salary of Rupees 12,500/- per month, which was received by the Petitioner from the Respondent No.4 at the time of accident. Therefore, the said salary of Rupees 12,500/- per month as stated by the P.W.1, which was receiving by him at the time of accident, cannot be believed and 30 M.V.C.NO.4236/2014 (SCCH-7) accept. However, at the time of accident, the Petitioner was 35 years old, which disclosed his family status with wife and children and as he was having Ex.P.14 Driving Licence and as he has proved that, he was working as a driver under the Respondent No.4 at the time of accident and as he was driving the Lorry belonging to the Respondent No.4 at the time of accident, by considering these material facts, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- per month, which is believable and acceptable one. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
23. The P.W.1 has stated that, during the course of treatment, he underwent wound debridement + suturing SSG done under SA on 07.09.2014 and on 19.09.2014 and after the discharge, even today, he is taking follow-up treatment in the Hospital as an outpatient regularly.
24. The P.W.2, who is a treated Doctor, has also stated in his examination-in-chief that, the Petitioner was operated on 07.09.2014 and on 19.09.2014 and discharged on 27.09.2014. He has further stated in his cross-examination that, after discharge, the Petitioner came to him for taking further follow-up treatment and in this regard, the Petitioner is having documents.
25. No doubt, the P.W.2 has not stated anything in his examination-in-chief about the follow-up treatment taken by the Petitioner after his discharge from the Hospital. Further, the P.W.2 in his cross-examination has sated that, he has not stated in his affidavit that, now many times, the Petitioner came before him to take follow-up treatment. Further, the P.W.1 in his cross-
31 M.V.C.NO.4236/2014(SCCH-7) examination has stated that, he has not produced medical documents to show that, he has taken regular follow up treatment as per advise of the Doctor. But, based on the same, it cannot be said that, after discharge from the said Hospital on 27.09.2014, the Petitioner had not taken any follow-up treatment to the said accidental injuries, as, based on Ex.P.6 Wound Certificate, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained grievous injuries, i.e., open wound over right lower leg with skin and exposure of bones, muscle, lacerated wound over left hand and left fore arm, lacerated wound over right hand and elbow, i.e., 3 grievous injuries and based on Ex.P.8 Discharge Summary, it is also observed and come to the conclusion that, by admitting as an inpatient from 06.09.20144 to 17.09.2014, i.e., 27 days, he took treatment to the said accidental injuries at Blossom Hospital. It is clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, wound debridement + suturing + SSG done on 07.09.2014 by Dr.Bharath SP Debridement + SSG done on 19.09.2014 under S.A and at the time of discharge, the Doctor advised the Petitioner for review on every Wednesday and Saturday. From this, it appears that, even after discharge from the Hospital on 27.09.2014, the Petitioner was very much required the regular follow-up treatment to the accidental injuries as per the advise of the treated Doctor. Hence, the evidence of P.W.1 and P.W.2 in respect of follow-up treatment taken by the Petitioner after his discharge from the Hospital can very well be believed and accept.
26. The P.W.1 has stated that, inspite of best available treatment taken, he has suffered disabilities, i.e., he cannot walk for long distance, cannot claims stairs ups and down, cannot sit, 32 M.V.C.NO.4236/2014 (SCCH-7) squat on the floor, cannot hold and carry any weight, cannot lift any article on his left hand and shoulder, cannot drive any vehicle for long period and cannot be able to do his driver job,. He has further stated that, he cannot sleep normal and sound sleep frequently suffering from ill health problems and often gets pain in his entire right leg region and cannot do his any manual hard work.
27. As this Tribunal has already observed about the production of Ex.P.9 Salary/Termination certificate dated 05.06.2015, issued by the Respondent No.4, who is the employer of the Petitioner, wherein, it is mentioned that, the Petitioner was terminated from the services on the grounds of ill health and not able to do the driver job.
28. The P.W.2, who is a treated Doctor, has stated in his examination-in-chief that, on 24.08.2015, the Petitioner came for assessment of disability and his complaints of unable to stand for long time, climbing up and down difficulty, unable to sit cross leg and squat and loss of sensation over the operated site. He has further stated that, an ugly scar corresponding to SSG graft is present over the right thigh extending from the iliac fossa till the mid part of the thigh measuring roughly 20 cm X 10 cm, as smooth skin excised area is present in the left thigh. By considering the mobility component in respect of left lower limb, the range of movement muscle power of hip, knee and ankle, stability component relating to work on plain surface, work on slop, climb steps, stand on both legs, stand on affected leg, squat, sit on cross legs, sit on knee and ability to turn and additional points i.e., deformity in functional position, deformity in non- functional position, pain mild with function, pain moderate with 33 M.V.C.NO.4236/2014 (SCCH-7) function, pain severe with function, partial loss of sensation, total loss of sensation, shortening ½ inch, after ½ inch shortening 4% for ½ inch, superficial complication and deep complication, the P.W.2 has opined that, the Petitioner is suffering from permanent physical disability to right lower limb 16% + 11% equals 27% disability to the whole body from the disability limb is 9% . The P.W.2 has also produced Ex.P.16 Case Sheet.
29. But, based on the contents of Ex.P.9, the above said entire medical documents as well as the oral version of P.W.1 and P.W.2, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent physical disability of 9% to the whole body, as, the Petitioner is having Ex.P.14 Driving Licence relating to him, which clearly implies that, now also, he has been doing the driving work. If really, due to the accidental injuries, the Petitioner is unable to do his driving work, he could have been definitely surrendered Ex.P.14 Driving Licence to the concerned RTO Authority. Further, the P.W.2 in his cross-examination has clearly stated that, at the time of discharge, the condition of the Petitioner was satisfactory and the Petitioner had not sustained any fracture injury and after discharge, the Petitioner came to him for taking further follow-up treatment. It is also clear from the contents of Ex.P.8 Discharge Summary that, no implants are inserted to the said accidental injuries to the Petitioner during the course of treatment. It is only mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, the Petitioner underwent surgery, wound debridement + suturing + SSG under SA and post operative period was uneventful and at the time of discharge, the Petitioner was clinically improved and was discharged with oral medications. Further, the P.W.2 has not specifically assessed the functional 34 M.V.C.NO.4236/2014 (SCCH-7) disability of the Petitioner, which is arising out of the said accidental injuries. Therefore, the Petitioner is not suffering from permanent physical disability of 9% to the whole body. However, in the said road traffic accident, the Petitioner had sustained injuries, i.e., open wound over right lower leg with skin and exposure of bones, muscle, lacerated wound over left hand and left fore arm, lacerated wound over right hand and elbow, which are grievous in nature and by admitting as an inpatient from 06.09.2014 to 27.09.2014, i.e., 22 days, he took treatment to the said accidental injuries. Further, at the time of accident, the Petitioner was a driver by profession and he was 35 years old. Hence, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 7% to the whole body, which is believable and acceptable one. Hence, the Petitioner is entitled for compensation under the following heads.
30. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 7%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 7%.
31. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 35 years at the time of accident.
35 M.V.C.NO.4236/2014(SCCH-7) The multiplier corresponding to the said age as per Sarala Varma's case is 16.
32. As the Petitioner is suffering from permanent physical and functional disability of 7% to the whole body. The notional income of the Petitioner is already considered as Rupees 8,000/- per month. Therefore, the loss arising out of the said 7% disability for monthly income of Rupees 8,000/- by applying multiplier 16 would comes to Rupees 1,07,520/-, i.e., (Rs.8,000/- x 12 x 16 x 7%).
33. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained three grievous injuries. The Petitioner was in the Hospital as an inpatient from 06.09.2014 to 27.09.2014, i.e., for 22 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 60,000/- towards pain and suffering.
34. As it is already observed that, the age of the Petitioner was 35 years. He has to lead remaining his entire life with 7% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
35. The Petitioner had sustained three grievous injuries and he was in the Hospital as an inpatient for 22 days and he could not do any work at least for 4 months and thereby, he deprived the income. Therefore, at the rate of Rupees 8,000/- per 36 M.V.C.NO.4236/2014 (SCCH-7) month, a sum of Rupees 32,000/- is awarded towards loss of income during the laid up period.
36. The P.W.1 has stated that, he has spent Rupees 92,961-30 towards treatment, medicines, conveyance and nourishment and he lost some of Medical Bills and medical prescriptions and he used to go by an Auto by paying Rupees 200/- per trip. In this regard, the Petitioner has produced Ex.P.12 Medical Bills 46 in numbers, which is amounting of Rupees 92,961-30 and Ex.P.13 Medical Prescriptions 28 in numbers. The Petitioner has taken treatment at Blossom Multi Specialty Hospital and Day Care Center Pvt. Ltd., wherein, he was taken treatment as an inpatient from 06.09.2014 to 27.09.2014, i.e., for 22 days. Considering the nature of the injuries and line of treatment given to the Petitioner, the possibility of spending the said amount for the medicines can not be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 92,961-30, which is rounded off Rupees 92,961/- to the Petitioner.
37. The P.W.1 and P.W.2 have not stated anything about the future medical assistance and its expenses. It is clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, the Petitioner underwent wound debridement + suturing + SSG done under SA on 07.09.2014 and 19.09.2014. From this, it appears that, during the course of treatment, no implants are inserted to the Petitioner to the accidental injuries. Therefore, the Petitioner is not required any future medical treatment. Hence the Petitioner is not entitled for any compensation towards future medical expenses.
37 M.V.C.NO.4236/2014(SCCH-7)
38. As the Petitioner was taken treatment as an inpatient for 22 days, it is necessary to award a sum of Rupees 5,000/- towards conveyance charges, Rupees 5,000/- towards attendant charges and Rupees 10,000/- towards food, nourishment and diet charges etc.,
39. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,07,520-00 arising out of 7% Disability
2. Pain and sufferings Rs. 60,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 32,000-00 up period
5. Actual medical expenses Rs. 92,961-00
6. Conveyance Rs. 5,000-00
7. Attendant Charges Rs. 5,000-00 Food, Nourishment &
8. Rs. 10,000-00 Diet charges TOTAL Rs. 3,32,481-00
40. In all, the Petitioner is entitled for total compensation of Rupees 3,32,481/- along with interest at the rate of 8% per annum on the above said sum from the date of petition till payment.
41. On perusal of the contents of petition, it appears that, the Respondent No.1 is an insurer and the Respondent No.2 is a registered owner of the offending Lorry bearing Registration No.TN-25-T-4591 and the Respondent No.3 is an insurer and the Respondent No.4 is a registered owner of the Lorry bearing 38 M.V.C.NO.4236/2014 (SCCH-7) Registration No.KA-01-AA-3420, which was driven by the Petitioner at the time of accident.
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Lorry bearing Registration No.TN-25-T-4591 by its driver itself, the said road traffic accident was taken place, which dashed to the Lorry bearing Registration No.KA-01-AA-3420, which was driven by the Petitioner and due to the said impact, the said Lorry caused damages on its front portion and the Petitioner had sustained 3 grievous injuries and the very involvement of the offending Lorry bearing Registration No.TN-25-T-4591 as well as its driver in the said road traffic accident is clearly proved.
43. The Respondent No.1, who is an insurer of the offending Lorry bearing Registration No.TN-25-T-4591, has not stated anything in its written statement about the issuance of the Insurance Policy relating to the said offending Lorry in favour of the Respondent No.2 as well as its period of validity. Though, the Respondent No.2, who is a registered owner of the offending Lorry has appeared before this Tribunal through his Learned Counsel, inspite of giving sufficient opportunities, he has not filed the written statement. The non-disclosure of the issuance of Insurance Policy, the non-filing of the written statement by the Respondent No.2 and non-examination of the witnesses by the Respondent No.1 on its behalf, clearly disclosed that, the Respondents No.1 and 2 have indirectly admitted the case made out by the Petitioner as against them that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a registered owner of the offending Lorry bearing Registration 39 M.V.C.NO.4236/2014 (SCCH-7) No.TN-25-T-4591 and its Insurance Policy was valid, which covers the date of accident. By producing Ex.P.14 Driving Licence, the Petitioner has clearly proved that, at the time of accident, he was having a valid and effective driving licence to drive the Lorry, which was driven by him at the time of accident. There is no allegation leveled by the Investigating Officer as against the driver of the offending Lorry in Ex.P.7 Charge Sheet that, he was not having a valid and effective driving licence to drive such class of offending Lorry at the time of accident. Even, the violation of the terms and conditions of the Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. The Respondent No.1, though has filed the written statement to contest the case of the Petitioner, has not adduced any evidence on its behalf.
44. By considering all these material evidence, which is very much available on record, it clearly goes to show that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a registered owner of the offending Lorry bearing Registration No.TN-25-T-4591 and its Insurance Policy was valid, which covers the date of accident. As this Tribunal has already observed that, the Respondent No.3 is an insurer and the Respondent No.4 is a registered owner of the Lorry bearing Registration No.KA-01-AA-3420, which was driven by the Petitioner at the time of accident. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being a registered owner of the offending Lorry bearing Registration No.TN-25-T-4591 are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Hence, the present petition filed by the Petitioner as against the Respondents No.1 and 2 is liable to be allowed and the petition filed by the Petitioner is liable to be rejected as against the Respondents No. 3 40 M.V.C.NO.4236/2014 (SCCH-7) and 4. Since, the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Inview of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are applicable to the present facts and circumstances of the case on hand to some extent. Hence, Issue No.2 is answered accordingly.
45. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs as against the Respondents No.1 and 2.
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected as against the Respondents No.3 and 4 without costs.
The Petitioner is entitled for
compensation of Rupees 3,32,481/-
with interest at the rate of 8% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
41 M.V.C.NO.4236/2014(SCCH-7) The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 75% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 15th day of March, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
42 M.V.C.NO.4236/2014(SCCH-7) P.W.1 : Sri. Manikandan. G. P.W.2 : Dr. Chandan Dash
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Statement relating to
Manikandan. G.
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Discharge Summary
Ex.P.9 : Salary/Termination Certificate dated
05.06.2015
Ex.P.10 : Photographs (3 in numbers)
Ex.P.11 : CD relating to Ex.P.10 Photographs
Ex.P.12 : Medical Bills (46 in numbers)
Ex.P.13 : Medical Prescriptions (28 in numbers)
Ex.P.14 : Notarized Xerox copy of Driving
Licence relating to Manikandan. G.
Ex.P.15 : Case Sheet
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.