Bangalore District Court
Was Examined On 28.11.2006 At Sparsh ... vs No.1 In His Cross-Examination That on 1 January, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 1st day of January, 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.1045/2013
Mr.Annesh Veeti @ Aneesh, ..... PETITIONER
S/o T.Varijakshan,
Aged about 26 years,
R/at No.202, Uron Apartment,
Opp to Dare,
Next to Reliance Fresh,
C.V.Raman Nagar,
Bangalore-560 091.
Permanent Address,
Shakthi, Near Block Office,
Agasthiya Code,
Anemal (Post),
Kollam District,
Kerala-691 506.
(By Sri.P.Puttaraju, Adv.,)
V/s
1. The Manager, .....RESPONDENTS
Universal Sompo General Insurance
Company Limited,
1st Floor, Next Brycles Finance Limited,
Opp 100 Feet Road,
Old Madras Road,
Indiranagar,
Bangalore.
(Policy No.2314/52565392/00/000,
2 M.V.C.NO.1045/2013
(SCCH-7)
Valid From 18.09.2012 to 17.09.2013)
2. M/s Travels World,
Sri. Ram Mansion,
No.9, 4th Main Road,
Kumara Park West,
Bangalore-560 021.
(R-1 By Sri.H.N.Keshava Prashanth,
Adv.,)
(R-2 Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 20,00,000/- with interest at the rate of 12% p.a.
2. The brief averments of the Petitioner's case are as follows;
a) On 28.11.2012 at about 2.00 a.m., he was riding Motor Cycle bearing Registration No.KL-02-Y-8079 from Electronic Phase-2 TVS Company to proceed towards Bangalore on Hosur Service Road. He was riding the Motor Cycle on the left side of the road, in a slow and cautious manner, abiding all traffic rules and regulations. When he reached opposite to Infosys Company, a TATA Sumo bearing Registration No.KA-02- AA-9345 driven by its driver from Bangalore to proceed towards Electronic City on Hosur Service Road in a high speed, rash and negligent manner, without observing traffic rules and regulations, came to the extreme right side of the road and dashed to his Motor Cycle. Due to the impact, he sustained grievous injuries and the Motor Cycle was also badly damaged.
3 M.V.C.NO.1045/2013(SCCH-7)
b) Immediately after the accident, he was shifted to Sparsh Hospital, wherein, he was admitted as an inpatient from 28.11.2012 to 01.12.2012. After diagnosis, it was found that, he has sustained crush injury of middle ring and little finger with deep abrasion on anterior aspect of right knee, right ankle and foot. During Hospitalization, wound debridement, long oblique VY advancement flap, open reduction and JESS fixation of right finger MPX fracture was done and discharged. He is still under treatment. The injuries have caused him permanent disablement.
c) As on the date of accident, he was aged about 26 years and he was working as a Senior Process Associate at M/s TATA Consultancy Services, Bangalore and was getting salary of Rupees 22,000/- per month.
d) Due to the injuries sustained in the accident, he could not able to work even today. He has no earnings after the accident.
e) This accident occurred due to rash and negligent driving by the driver of offending TATA Sumo. The Police have charge sheeted as against the driver for negligent act.
f) The First Respondent is the insurer and 2nd Respondent being the owner has vicariously liable for negligent act of the driver. Therefore, under these circumstances, this Hon'ble Court may be pleased to award a sum of Rupees 20,00,000/- towards medical expenses, conveyance, nourishment, pain and suffering, pecuniary loss, loss of income disability, future loss of income, loss of amenities, general and special damages, etc., Hence, this Petition.
4 M.V.C.NO.1045/2013(SCCH-7)
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his 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 27.02.2015 passed on I.A.No.III, the written statement filed by the Respondent No.1 is taken on file.
4. Though the notice was duly served on the Respondent No.2, it was remained absent and hence, it is placed as exparte on 02.05.2013.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition for grant of compensation on account of injuries sustained by the Petitioner in an accident that occurred on 28.12.2012 involving the Motor Cycle bearing Registration No.KL-02-Y-8079 and the TATA Sumo bearing Registration No.KA-02-AA-9345 is not maintainable either in law or on facts.
b) He admits having insured the TATA SUMO bearing Registration No.KA-02-AA-9345, in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act and the liability of him is limited to the terms and conditions of the policy of insurance issued.
c) The 2nd Respondent has not intimated the occurrence of the accident to him and has not submitted the claim form and other documents, like, RC, Driving license and permit etc., for verification. Hence, he is permitted to file the additional written statement as and when the said requirements are submitted by the owner of the vehicle in question. As per Section 134(c) of the 5 M.V.C.NO.1045/2013 (SCCH-7) M.V. Act, 1988, it mandatory duty of the insured/owner of the vehicle to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving licence, but, the insured/owner has not complied with statutory demand. Hence, he is not liable to pay any compensation and the case is liable to be dismissed as against him for non-compliance of statutory demand.
d) As per Section 158 (6) of the Motor Vehicles Act, as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a Police Officer, the Officer-in-charge of the Police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the claim Tribunal having Jurisdiction and a copy thereof to the concerned Insurer and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer. But, in the case on hand, no such report is forwarded by the Police Officer or the Officer-In- Charge of the Police Station or by the owner of the vehicle and hence, he is not liable to pay any compensation unless the same is forwarded. In view of the Apex Court Judgment, it is the mandatory duty of the Police Officer to comply the requirement as per Section 158(6) of the Motor Vehicles Act.
e) The driver of the vehicle drove the same without having a valid and effective driving licence, which is in 6 M.V.C.NO.1045/2013 (SCCH-7) contravention of the policy condition and also the Motor Vehicles Act. The owner/Insured has entrusted the vehicle knowing fully well that, the driver has no driving licence to drive the vehicle in question. Therefore, this is a willful breach of the policy conditions and also the Motor Vehicles Act by the owner/insured. The owner is expected to verify the driving licence of the driver before entrusting the vehicle to a driver, but, in the case on hand no such attempt has made by the owner of the vehicle and hence, he is not liable to pay any compensation.
f) The Insured TATA Sumo was used without having valid permit and fitness certificate using of the vehicle in a pubic place without valid permit and fitness certificate is a violation of the policy condition and also against to the provisions of the Motor Vehicles Act and hence, he is not liable to pay any compensation.
g) If the owner of the vehicle, i.e., the 2nd Respondent not contesting the claim petition or is placed exparte before the Court or has colluded with the Petitioner, then, he be permitted to contest the matter on all the grounds available as per Section 170 of the Motor Vehicles Act without prejudice to the ground available under Section 149(2) of the Motor Vehicles Act.
h) The accident in question was not occurred on account of the rash and negligent driving of the insured vehicle. The said vehicle was being driven by its driver very 7 M.V.C.NO.1045/2013 (SCCH-7) slowly, carefully and cautiously on the correct side of the road by sounding horn and observing all traffic rules and regulations. The unfortunate accident has occurred only on account of the negligence on the part of rider of the Motor Cycle/Petitioner and hence, the Petitioner himself is responsible and main architect for this unfortunate accident. Hence, he is not liable to pay any compensation in the present case.
i) A sum of Rupees 10,00,000/- compensation claimed by Petitioner is highly excessive, arbitrary and disproportionate to the simple nature of injuries sustained by the Petitioner and the Petitioner is trying to make a windfall out of an unfortunate accident.
j) The Petitioner is not entitled to receive any interest on future loss of earnings and if the compensation is granted on any other heads than the rate of interest should not exceed more than 6% in view of the several recent decisions of our Hon'ble High Court of Karnataka. Hence, prayed to dismiss the petition with exemplary costs.
6. 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 Tata Sumo bearing Reg.No.KA-02-AA-
9345 by its driver and in the said accident, he sustained injuries 8 M.V.C.NO.1045/2013 (SCCH-7) and also caused damages to the Motor Cycle bearing Reg. No.KL-
02-Y-8079?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
7. 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.29. On the other hand, the Respondent No.1 has not adduced any evidence on his behalf.
8. Heard the arguments.
9. 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 1,24,566/-
with interest at the rate of
6% p.a. from the date of
the petition till the date of
payment, from the
Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
9 M.V.C.NO.1045/2013
(SCCH-7)
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, on 28.11.2012 at about 2.00 a.m., he had met with an accident while he was riding Motor Cycle bearing Registration No.KL-02-Y-8079 from Electronic Phase 2, TCS Company to proceed towards Bangalore on Hosur Service Road, riding the Motor Cycle on the left side of road, in a slow and cautiously, abiding all traffic rules and regulations and when he reached opposite to Infosys Company, at that time, a vehicle TATA Sumo bearing Registration No.KA- 02-AA-9345 driven by its driver from Bangalore to proceed towards Electonic City on Hosur Service Road with high speed, in a rash and negligent manner, without observing traffic rules and regulations, came to the extreme right side of the road dashed to his Motor Cycle from the wrong side in a opposite direction. He has further stated that, due to the terrible impact, he fell down and sustained injuries, i.e., crush injury of middle right and little finger with deep abrasion on anterior aspect of right knee, right ankle and foot L4-5, L5 SI Disc Prolapse with discogenic stenosis and other injuries all over the body and the Motor Cycle was also badly damaged. He has further stated that, immediately after the accident, he was shifted to Sparsh Hospital, wherein, he was treated as an inpatient from 28.11.2012 to 01.12.2012 and during the admission, local examination was done and crush amputation of right middle finger at distal MPX shaft, distal part not viable, open comminuted fracture of right ring finger MPX head extending into DIP joint, dorsal laceration over MPX of right ring finger, closed fracture of DPX tip and chip fracture of PPX base over radial side of right little finger, Sensation and circulation of all fingers intact proximal to injury was confirmed.
10 M.V.C.NO.1045/2013(SCCH-7) He has further stated that, he got pain in his back after the accident and so he went and admitted to Sree Gokulam Medical College and Research Foundation Hospital, wherein, he was treated as an inpatient from 26.07.2013 to 31.07.2013 and during the course of diagnosis L4-5, L5 SI Disc Prolapse with discogenic stenosis. He has further stated that, this accident was caused due to rash and negligent manner of driving of offending TATA Sumo bearing Registration No.KA-02-AA-9345 and Police have filed a charge sheet as against the driver for the negligence act.
11. The P.W.1 in his cross-examination has clearly stated that, immediately after the accident, he was shifted to Sparch Hospital.
12. For consideration of his case as well as oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Charge Sheet, Ex.P.4 Sketch, Ex.P.5 Spot Panchanama Ex.P.6 IMV Report, Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summaries 2 in numbers, Ex.P.24 Photographs 4 in numbers, Ex.P.25 C.D relating to Ex.P.24 Photographs and Ex.P.26 X-ray Films 2 in numbers.
13. The Petitioner has also examined the Doctor as P.W.2, who is one of the treated Doctor has stated in his examination- in-chief that, with a alleged history of road traffic accident, the Petitioner was examined on 28.11.2006 at Sparsh Hospital and diagnosed to have crush injury of right middle ring and little finger and he was discharged on 01.12.2012 and he got the follow-up treatment at Kerala and during his follow-up, he had developed ridiculer pain in the lower limbs and diagnosed to have 11 M.V.C.NO.1045/2013 (SCCH-7) dis prolapse of L4-5, L5 SI Disc Prolapse with discogenic stenosis, for which, he underwent midline decompression and microdiscetomy on 27.07.2013. The P.W.2 has also produced Ex.P.28 Case Sheet. He has further stated in his cross- examination that, he is one of the team of the Doctor and initially, the Petitioner had taken treatment with them and thereafter, he had taken treatment at Kerala. He has further stated that, on examination, initially, the Petitioner had sustained crush injury of right leg, ring and middle finger, middle finger is amputed.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the elder brother of the Petitioner had lodged a complaint before the Electronic City Traffic Police as against the driver of the offending Tata Sumo bearing Registration No.KA-02- A-9345 by alleging that, on 28.11.2012 at 2.00 a.m., the Tata Sumo bearing Registration No.KA-02-A-9345 came from Bangalore towards Electronic City on Hosur Service Road with very high speed, with a rash and negligent manner and in front of Infosys Company on the said Service Road, it dashed to the Motor Cycle bearing Registration No.KL-02-Y-8079, which was coming from Electronic City towards Bangalore and due to the said impact, the rider, i.e., his brother had sustained grievous injuries on his hands and leg and he was shifted to Sparsh Hospital for treatment and as such, he prayed to take necessary legal action as against the driver of the offending Tata Sumo bearing Registration No.KA-02-A-9345 and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the Tata Sumo for the offences punishable under Section 279 and 338 of IPC in Crime No.236/2012. It is also clear from the contents of Ex.P.1 FIR that, there is no delay 12 M.V.C.NO.1045/2013 (SCCH-7) as such in lodging Ex.P.2 Complaint by the elder brother of the Petitioner in respect of the said road traffic accident.
15. The contents of Ex.P.4 Sketch, Ex.P.5 Spot Panchanama and Ex.P.6 MVI Report further clearly disclosed that, the entire negligence is on the part of the driver of the offending Tata Sumo bearing Registration No.KA-02-A-9345 by its driver itself, which dashed to the Motor Cycle bearing Registration No.Kl_03-Y-8079, wherein, the Petitioner was proceeding on the opposite direction on the extreme left side of the road and there was no negligence on the part of the Petitioner in riding the Motor Cycle. The damages caused to both the vehicles are clearly mentioned in Ex.P.6 MVI Report, which disclosed the terrific impact of the said accident. It is also mentioned in Ex.P.6 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicle.
16. The contents of Ex.P.7 Wound Certificate clearly disclosed that, the Petitioner came to Sparsh Hospital with certain injury said to have been caused on 28.11.2012 at about 2.00 p.m., when he was examined, the injuries were found, i.e., crush injury of right middle ring and little finger, which is grievous in nature.
17. The contents of Ex.P.8 Discharge Summary of Sparsh Hospital clearly disclosed that, the Petitioner has come with complaints of right hand crush injury sustained in road traffic accident on 28.11.2012 and on examination, it is diagnosed that, crush injury of right middle, ring and little finger with deep abrasion on anterior aspect of right knee, right ankle and foot 13 M.V.C.NO.1045/2013 (SCCH-7) and by admitting as an inpatient from 28.11.2012 to 01.12.2012, i.e., for 4 days, he took treatment to the said accidental injuries.
18. Ex.P.24 Photographs 4 in numbers, Ex.P.25 C.D relating to E.x.P.24 Photographs clearly disclosed about the grievous injury of right middle, ring and little finger.
19. It is pertinent to note here that, it is not necessary to discuss in detail about the relevancy as well as the contents of discharge summary relating to Sri Gokulam Medical College and Research Foundation Hospital, as, it is sufficient to consider the injuries sustained by the Petitioner in the said road traffic accident as well as only the examination and treatment itself is sufficient to consider the point-in-issue involved in the present Issue. The contents of the said Discharge Summary relating to Sri Gokulam Medical College and Research Foundation Hospital will be discussed in detail while answering Issue No.2.
20. The contents of Ex.P.3 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 Tata Sumo bearing Registration No.KA- 02-AA-9345 by its driver itself, the said road traffic accident was taken place on 28.11.2014 at 2.00 a.m., on Hosur Service Road, N.H-7, which came from Bangalore towards Electronic City and near Electronic City Bus Stand, it dashed to the Motor Cycle bearing Registration No.KL-02-8079, which was proceeding from Electronic City Face to TCS Company towards Bangalore, wherein, the Petitioner was proceeding as a rider and due to which, the Petitioner had sustained severe grievous injuries on his right hand fingers and as such, after thorough investigation, 14 M.V.C.NO.1045/2013 (SCCH-7) the Investigating Officer has filed a charge sheet as against the driver of the offending Tata Sumo bearing Registration No.KA-02- AA-9345 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.3 Charge Sheet about his negligence in the commission of the said road traffic accident.
21. From the above said material evidence, both oral and documentary, it is clearly proved that, the entire negligence is on the part of the driver of the offending Tata Sumo bearing Registration No.KA-02-AA-9345 by its driver itself and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and in the said road traffic accident, the Petitioner had sustained one grievous injuries, i.e., crush injury of right middle, ring and little finger and the Motor Cycle bearing Registration No.KL-02-Y-8079, wherein, the Petitioner was proceeding as a rider also caused damages. Further more, the P.W.1 has clearly denied the suggestions put to him by the Respondent No.1 in his cross-examination that, the alleged accident was taken place due to his own negligence and no negligence on the part of the driver of the offending vehicle. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.1, nothing has been elicited from his mouth about his defence. Accordingly, I answered Issue No.1 in the Affirmative.
22. ISSUE NO.2 :- The Petitioner has produced Ex.P.17 Driving Licence, Ex.P.18 Passport and Ex.P.19 Pan Card relating to him, which disclosed that, his date of birth is on 09.03.1997. The date of accident is on 28.11.2012. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 15 M.V.C.NO.1045/2013 (SCCH-7) 26 years old. Hence, the age of the Petitioner is considered as 26 years at the time of accident.
23. The P.W.1 has stated that, prior to the accident, he was working as a Senior Process Associate at M/s Tata Consultancy Services, Bangalore and was getting salary of Rupees 22,000/- per month. The Petitioner has produced Ex.P.9 Appointment Letter dated 12.10.2010, Ex.P.10 Letter dated 29.09.2014 along with annexure, Ex.P.11 Pay Slips 14 in numbers, Ex.P.12 Statement of Account, Ex.P.13 Form No.16 for the Assessment year 2013-2014, Ex.P.14 Form No.16 for the Assessment year 2014-2015, Ex.P.15 Certificate, Ex.P.16 Certificate and Ex.P.27 Identity Card. On perusal of the contents of the said material documents, it clearly goes to show that, at the time of accident, the Petitioner was working as a Senior Process Associate at M/s Tata Consultancy Services, Bangalore and earning a sum of Rupees 24,000/-. To negative the same, nothing is available on record on behalf of the Respondents. Hence, based on the said material evidence, it can be safely held that, due to the accident, the Petitioner was working as a Senior Process Associate and earning a sum of Rupees 24,000/- per month at the time of accident.
24. The P.W.1 has stated that, during the course of treatment at Sparsh Hospital, he had undergone operation, i.e., wound debridement, long oblique VY advancement flap, open reduction and JESS fixation of ring finger MPX fracture was done and discharged on 01.12.2012 with an advise to come for follow- up treatment as per the advise of the Doctor. The P.W.2 has stated that, the Petitioner was posted for wound debridement, long oblique VY advancement flap and open reduction JESS 16 M.V.C.NO.1045/2013 (SCCH-7) fixation of ring finger MPX fracture was done with amputation of distal phalanx of middle finger on 28.11.2012.
25. Based on the contents of Ex.P.7 Wound Certificate relating to Sparsh Hospital and Ex.P.8 Discharge Summary relating to the same Hospital, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained crush injury of right middle ring and little finger, which is grievous in nature and by admitting as an inpatient from 28.11.2012 to 01.12.2012, i.e., for 4 days, he took treatment to the said accidental injuries at Sparsh Hospital. It is clearly mentioned in the said discharge summary relating to the said Sparsh Hospital that, operation of right middle finger MPX mid shaft, right ring ginger comminuted fracture of right little finger DPX tip fracture and PPX base fracture and during the course of treatment, wound debridement was done, open reduction and ex-fix stabilization of ring finger MPC fracture using K wire and JESS fixation, long oblique VV flap advanced over tip defect of middle finger and suturing done with 4-0 monocryl, closed reduction and stabilization with ulnar gutter slab below elbow of little finger fracture, dressing done for abrasion areas over right nee and ankle, post operative period was uneventful and he was treated with analgesics, antibiotics and limb elevation. Since, in the said road traffic accident, the Petitioner had sustained crush injury of right middle, ring and little finger with deep abrasion on anterior aspect of right knee, right ankle and foot and during the course of treatment, internal fixation was done to the Petitioner by conducting surgery, after discharge from the said Hospital, the Petitioner required the regular follow-up treatment to the said injuries as per the advise of the Doctor. Therefore, the evidence stated by the P.W.1 and 17 M.V.C.NO.1045/2013 (SCCH-7) P.W.2 in respect of the follow-up treatment of the accidental injuries as per the advise of the Doctor is believed and accept.
26. The P.W.1 has stated that, he got pain in his back after the accident and so he went and admitted to Sree Gokulam Medical College and Research Foundation Hospital and there, he was treated as an inpatient from 26.07.2013 to 31.07.2013 and during the course of treatment, it is diagnosed L4-5, L5 SI disc prolapsed with discogenic stenosis. He has further stated that, during the course of treatment, he had undergone operation to his spinal, i.e., L4-5, L5 SI midline decompression and microdiscetomy under GA on 27.07.2013 and discharged on 31.07.2013 with an advise to come for follow-up treatment and he has taken for follow-up treatment as per the advise of the Doctor. He has further stated that, he has taken follow-up treatment as per the advise of the Doctor and he has visited the Hospital for more than 30-40 times in both the Hospitals for a period of one year and he has also spent a sum of Rupees 3,00,000/-. He has further stated that, even after taking the complete treatment, he has not yet fully recovered and he cannot do hard work in his right hand, since he should work on computers, it is very difficult to work on computers since his middle finger has been amputed. He has further stated that, he cannot lift heavy weight in his right hand and due to the injuries sustained to his back, spinal cord, he cannot sit and work for ling time and he cannot ride or drive any type of vehicle and he can travel only in Car or Volvo Bus that too, in middle seat. He has further stated that, he cannot walk, cannot run, cannot bend his body, he cannot sue Indian type of toilet and due to the disability sustained to him in the said accident, he is not able to carry out his day to day activities and he used to do earlier to the 18 M.V.C.NO.1045/2013 (SCCH-7) date of accident. He has further stated that, due to the injuries sustained to his spine in the said accident, he has to visit the Doctor once in six months regularly through his life time and he has to spent lot of money for his future medical expenses. He has further stated that, at the time of filing of the claim petition, he has to put his left thumb signature as he has sustained grievous injuries to his right hand. In support of his oral version, the Petitioner has produced Ex.P.10 Letter dated 29.09.2014 along with annexure and Ex.P.23 Medical Leave Certificates 3 in numbers and Ex.P.26 X-ray Films 2 in numbers.
27. As this Tribunal has already observed about the production of Ex.P.8 Discharge Summary relating to Sri Gokulam Medical College and Research Foundation Hospital.
28. The P.W.2, who is one of the team of treated Doctor, has stated in his examination-in-chief that, the Petitioner got the follow-up treatment at Kerala, during his follow-up, he had developed radicular pain in the lower limbs and diagnosed to have dis prolapse of L4-L5, L5-SI, for which, he underwent midline decompression and microdiscetomy on 27.07.2013. He has further stated that, on 13.07.2015, he was reviewed in the OPD for assessment of disability his complains unable to use his right and normally loss of sensation of the ring and middle finger with stiffness of all the three fingers of right hand and he also complaints of stiffness in back. He has further stated that, assessment of disability was done clinically and with the help of Central Government Notification for disability. He has further stated that, the Petitioner has permanent functional disability of 6% to his hand and 10% to his spine and whole body disability of 19 M.V.C.NO.1045/2013 (SCCH-7) 16%. The P.W.2 has produced Ex.P.28 Case Sheet, Ex.P.29 Latest X-ray Films, 2 in numbers.
29. But, based on the above said oral version of P.W.1 and P.W.2 coupled with the contents of above said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner had also sustained L4-5, L5 SI disc prolapsed with discogenic stenosis and he is suffering from 16% disability to the whole body, as the said L4-5, L5 SI disc prolapsed with discogenic stenosis is no way related to the accidental injuries, crush injury of middle right little finger with deep abrasion of anterior aspect of right knee, right ankle and right foot as mentioned in Ex.P.7 Wound Certificate and Ex.P.8 Discharge Summary relating to Sparsh Hospital and the Petitioner had taken treatment to the said L4-5, L5 SI disc prolapsed with discogenic stenosis at Sri.Gokulam Medical College and Research Foundation on 26.07.2012 till 31.07.2013 i.e., 6 days, after discharge from Sparch Hospital, i.e., on 01.12.2012. Further more, no where in the above said medical documents relating to Sparsh Hospital disclosed about the said L4-5, L5 SI disc prolapsed with discogenic stenosis, which caused to the Petitioner due to the accidental injuries. In this regard, though the P.W.1 in his cross-examination has clearly stated that, he has produced the documents to show that, due to the accident, he has injury of L4-5, L5 SI disc prolapsed with discogenic stenosis, the same is not found in the medical documents produced by the Petitioner. Further, he has stated that, after discharge from Sparsh Hospital, he was admitted in Sri Gokulam Medical College and Research Foundation Hospital. Furthermore, the P.W.2, who is one of the team of Doctors, who has treated the Petitioner, has clearly stated in his cross-
20 M.V.C.NO.1045/2013(SCCH-7) examination that, during earlier stage, having not diagnosed the spine injury and spine injury is not mentioned in their Hospital records. He has further clearly stated that, in one page of medical documents only back pain is mentioned. If really, due to the said accidental injuries, the Petitioner was also suffering from the said L4-5, L5 SI disc prolapsed with discogenic stenosis, the same could have been diagnosed at initial point of time by Sparsh Hospital Authority, when the Petitioner was admitted in their Hospital to take treatment to the said accidental injuries and the same has been clearly mentioned in Ex.P.7 Wound Certificate and Ex.P.8 Discharge Summary relating to Sparsh Hospital.
30. No doubt, the P.W.1 in his cross-examination has stated that, as per Ex.P.10 Letter dated 29.09.2014, he has taken leave without pay only for 6 months and his Bank Account also shows, he has taken leave without pay only for 6 months. But, Ex.P.10 Letter clearly disclosed that, the Petitioner was on leave without pay for a period from 03.05.2013 to 14.05.2013 and not from 28.11.2012 to 01.12.2012 or subsequent period till he recovered the crush injury of right middle, ring and little finger. Further Ex.P.10 Letter dated 29.09.2014 along with annexure clearly disclosed that, the Petitioner took leave without pay from 21.03.2013 and on wards and only before the said date. As this Tribunal has already observed that, no authenticated medical documents produced by the Petitioner to show that, due to the said accidental injuries itself, he has sustained L4-5, L5 SI disc prolapsed with discogenic stenosis and as such, he continuously taking treatment since 28.11.2012 to 31.07.2013. No proper explanation is given by the Petitioner that, from the date of accident, i.e., 28.11.2012, how many days, he was on leave. Further more, Ex.P.8 Discharge Summary relating to Sparsh 21 M.V.C.NO.1045/2013 (SCCH-7) Hospital clearly disclosed that, at the time of discharge, the Petitioner was afebrile, pain free and suture line healthy and he was diagnosed to keep right upper limb elevated with cuff and collar, keep right lower limb elevated over pillow and advised to take medicines and review on 08.12.2012 in OPD. Further, the P.W.2 in his examination-in-chief has clearly stated that, once the Petitioner was stable, he was discharged on 01.02.2012 with an advise of OPD follow-up. Therefore, the evidence adduced by the Petitioner relating to the said injury, i.e., L4-5, L5 SI disc prolapsed with discogenic stenosis, as well as the line of treatment taken by him at Sree Gokulam Medical College and Research Foundation to the said injury as well as the leave applied by him during the course of treatment cannot be taken into for consideration in the present petition, it can be safely held that, the said injury was not sustained by the Petitioner in the said road traffic accident. Therefore, the said evidence relating to the injury, i.e., L4-5, L5 SI disc prolapsed with discogenic stenosis both oral and documentary is discarded. Therefore, in the present petition, the disability, which is suffering by the Petitioner due to the accidental injury, i.e., crush injury of right middle and ring finger can only be taken into for consideration for assessing the disability.
31. By considering both the accidental injuries, L4-5, L5 SI disc prolapsed with discogenic stenosi, the P.W.2 has assessed the whole body disability of 16%. But, the said extent of 16% disability to whole body relating to accidental injuries, i.e., crush injury to right middle, ring and little finger cannot be taken into consideration to such extent, as, the P.W.2 in his cross- examination has clearly stated that, the Petitioner can do the computer technician work and in future course, it may be 22 M.V.C.NO.1045/2013 (SCCH-7) reduced to some extent of disability. Further, the P.W.2 in his cross-examination has clearly stated that, now he is working in the same Company and now also he is getting the same salary, which was getting at the time of accident and his salary is credited to his ICSC Bank Account and after healing the entire injuries, he was discharged from the Sparsh Hospital. He has further clearly stated that, now also, he is working in the same cadre, i.e., Senior Process Associate. From the said evidence, it is made crystal clear that, now the Petitioner is working in the same Company in the same cadre by drawing the same salary and due to the said accidental injury, the Petitioner has not lost his future income. However, in the said road traffic accident, the Petitioner had lost his middle finger, which is amputed and as per Ex.P.8 Discharge Summary relating to Sparsh Hospital operation of right middle finger MPX mid shaft, right ring ginger comminuted fracture of right little finger DPX tip fracture and PPX base fracture and during the course of treatment, wound debridement was done, open reduction and ex-fix stabilization of ring finger MPC fracture using K wire and JESS fixation, long oblique VV flap advanced over tip defect of middle finger and suturing done with 4-0 monocryl, closed reduction and stabilization with ulnar gutter slab below elbow of little finger fracture, dressing done for abrasion areas over right nee and ankle, post operative period was uneventful and he was treated with analgesics, antibiotics and limb elevation, which clearly discloses that, due to the said accidental injuries, the Petitioner had lost his right hand middle, ring and little fingers. Therefore, even though the Petitioner has continued his same job, with same salary, due to the said nature of injury and line of treatment, he is suffering from disability. Therefore, the permanent functional disability of 6% to his hand as stated by 23 M.V.C.NO.1045/2013 (SCCH-7) the P.W.2 is believed and accept. Therefore, this Tribunal has come to the conclusion that, due to the said accidental injuries, the Petitioner is suffering from permanent functional disability of 6% to the whole body.
32. While discussing above, this Tribunal has already come to the conclusion that, due to the said accidental injury, the Petitioner has not lost his job and income, as, admittedly, he is continuing his same job by getting same salary. Furthermore, the P.W.1 in his examination-in-chief itself has clearly stated that, due to permanent physical and functional disability at the time of accident, he has put his LTM and now, he has been fully recovered and he is able to put his signature. Therefore, the said extent of disability, i.e., 6% to the whole body no way affects the Petitioner to his earning capacity. Hence, the Petitioner is not entitled for any compensation towards loss of future income arising out of the disability of 6%.
33. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 6%. This would certainly come in the way of the future life of the Petitioner and thereby, his enjoyment of life to that extent would be definitely affected. As it is already observed that, the age of the Petitioner was 26 years at the time of accident. He has to lead remaining his entire life with 6% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, the Petitioner is entitled for compensation towards loss of amenities of life arising out of the permanent physical and functional disability of 6%. By considering the same, a sum of Rupees 50,000/- is awarded towards loss of amenities of life to the Petitioner.
24 M.V.C.NO.1045/2013(SCCH-7)
34. As per Ex.P.7 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained grievous injury, i.e., crush injury on right middle ring and little finger. The Petitioner was in the Sparsh Hospital as an inpatient from 28.11.2012 to 01.12.2012, i.e., 4 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 50,000/- towards pain and suffering.
35. It is not disclosed by the Petitioner either in the petition or in his evidence that, he was unmarried as on the date of accident. In view of the absence of pleading as well as evidence, the Petitioner is not entitled for compensation towards loss of marriage prospects.
36. The P.W.1 has stated that, he has visited the Hospital for more than 30-40 times in both the Hospitals for a period of one year and he has spent a sum of Rupees 3,00,000/- towards medical expenses, extra nourishment, conveyance and other miscellaneous expenses, etc, other than the first Hospitalization bill in Sparsh Hospital, a part amount of Rupees 60,687/- has been paid by the Medical Assist India TPA Pvt. Ltd and the balance paid by him. The Petitioner has produced Ex.P.21 Medical Bills 40 in numbers, which is amounting of Rupees 1,14,858-38 and Ex.P.22 Taxi Service Trip Sheets 14 in numbers, which is amounting of Rupees 16,000/-. But, the said Ex.P.21 Medical Bills also included the medical bills relating to Sree Gokulam Medical College and Research Foundation and Serial No.10 of Ex.P.21 Medical Bills is not relating to the Petitioner. Further, Serial No.1 of Rupees 79,173/-, Serial No.3 of 25 M.V.C.NO.1045/2013 (SCCH-7) Rupees 400/-, Serial No.4 of Rupees 1989-77, Serial No.5 of Rupees 554-72, Serial No.6 of Rupees 100/-, Serial No.7 of Rupees 350/-, Serial No.8 of Rupees 250/-, Serial No.11 of Rupees 780/-, Serial No.12 of Rupees 210/-, Serial No. 13 of Rupees 190/-, Serial No.14 of Rupees 50/-, Serial No.15 of Rupees 564-50/-, Serial No.,16 of Rupees 318-75/- and Serial No.32 of Rupees 64-97, totally of Rupees 84,995-71 are only relating to Sparsh Hospital and other bills are relating to the Spine injury i.e., after the accident. Further, Ex.P.22 Taxi Service Trip Sheets are dated 28.08.2013, 26.10.2013, 17.07.2013, 31.07.2013, 15.05.2013, 21.06.2013, 26.04.2013, 01.05.2013, 19.03.2013, 30.03.2013, 01.08.2013, 17.03.2013, 03.12.2013 and 26.07.2013, which clearly disclosed that, they are relating to after discharge from Sparsh Hospital on 01.12.2012 and they are not relating to the accidental injuries shown in Ex.P.7 Wound Certificate as well as the period of taking treatment at Sparsh Hospital, But, they are relating to the treatment taken by the Petitioner to L4-5, L5 SI disc prolapsed with discogenic stenosis, at Sree Gokulam Medical College and Research Foundation. Therefore, Ex.P.22 Taxi Service Trip Sheets cannot be taken into for consideration. Further, only the claim of Rupees 84,995-71 as noted above in Ex.P.21 Medical Bills can taken for consideration. Further, the P.W.1 in his cross-examination has clearly stated that, his Company has reimbursed the medical expenses of Rupees 60,000/- in respect of first treatment and the medical expenses incurred for taking treatment at Sparsh Hospital is reimbursed through Medi Assist. It is clearly mentioned in Serial No.1 of Ex.P.21 Medical Bills that, a sum of Rupees 67,430/- is paid by the Medi Assist Health Care Services and the remaining amount of Rupees 11,743/- is paid by the Petitioner. Hence, out of the actual amount of Rupees 84,995-71, the said amount of 26 M.V.C.NO.1045/2013 (SCCH-7) Rupees 67,430/- has to be deducted in the said amount, which comes to Rupees 17,565-71. The Petitioner has taken treatment at Sparsh Hospital, as an inpatient from 28.11.2012 to 01.12.2012, i.e., 4 days. Considering the nature of the injuries and line of treatment given to the Petitioner in the said Hospital, the possibility of spending the said amount of Rupees 17,565-71 for the medicines can not be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 17,565-71, which is rounded off Rupees 17,566/- to the Petitioner.
37. Neither the Petitioner nor the P.W.2 stated anything about the future medical assistance to the Petitioner to the said accidental injury and its expenses. Further, the P.W.2 in his cross-examination has clearly stated that, an artificial finger has to be inserted to the middle finger. The P.W.1, who is the Petitioner in his cross-examination, has clearly stated that, now he is working in the same company and also getting same salary, which was getting at the time of accident. He has further clearly stated that, his company has reimbursed the medical expenses of Rupees 60,000/-. From this, it appears that, the Petitioner is having medical reimbursement facility from his employer. Further while discussing above, this Tribunal has already come to the conclusion that, the Petitioner is having Medi-assist Health Care Services, which paid Rupees 67,430/-out of the medical expenses of Rupees 79,173/-. Therefore, if any artificial finger is inserted by the Petitioner to his middle finger as stated by the P.W.2, the expenses incurred by him in this regard can very well be reimbursed by his employer. Hence, it is not necessary to award any compensation towards future medical expenses to the Petitioner.
27 M.V.C.NO.1045/2013(SCCH-7)
38. As the Petitioner was taken treatment as an inpatient for 4 days at Sparsh Hospital in respect of the accidental injury, it is necessary to award a sum of Rupees 2,000/- towards conveyance charges, Rupees 2,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc.,
39. No doubt, while answering Issue No.1, this Tribunal has also come to the conclusion that, the Motor Cycle bearing Registration No.KL-02-Y-8079, wherein, the Petitioner was proceeding as a rider also caused damages. But, the Petitioner has not claimed any compensation in respect of vehicle damages. Even, the Petitioner has not proved the same. Hence, the Petitioner is not entitled for any compensation towards vehicle damages.
40. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of amenities of life Rs. 50,000-00
3. Actual medical expenses Rs. 17,566-00
4. Conveyance Rs. 2,000-00
5. Attendant Charges Rs. 2,000-00 Food, Nourishment &
6. Rs. 3,000-00 Diet charges TOTAL Rs. 1,24,566-00
41. In all, the Petitioner is entitled for total compensation of Rupees 1,24,566/- along with interest at the rate of 6% per annum on the above said sum from the date of petition till payment.
28 M.V.C.NO.1045/2013(SCCH-7)
42. The P.W.1 has stated that, the first Respondent is the Insurer and the second Respondent being the owner insured with the first Respondent, the policy was in force as on the date of accident is vicariously liable for negligent act of the driver, jointly and severally.
43. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the driver of the offending Tata Sumo bearing Registration No.KA-02-AA-9345 by its driver itself and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and in the said road traffic accident, the Petitioner had sustained one grievous injuries, i.e., crush injury of right middle, ring and little finger and the Motor Cycle bearing Registration No.KL-02-Y-8079, wherein, the Petitioner was proceeding as a rider also caused damages. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is the insurer of the offending Tata Sumo bearing Registration No.KA-02-AA-9345 and its Policy No.2314/52565392/00/000, valid from 18.09.2012 t0 17.09.2013. The Respondent No.1 in his written statement has clearly admitted having insured the Tata Sumo bearing Registration No.KA-02-AA-9345, in terms of the policy of insurance issued, which is in accordance with the provisions of the Motor Vehicles Act and the liability of him is limited to the terms and conditions of the policy of insurance issued. The said period of insurance policy includes the date of accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.2 was a R.C. Owner and the Respondent No.1 was an Insurer of the offending Tata Sumo bearing Registration No.KA-02-AA-9345 and its Insurance Policy was valid, which 29 M.V.C.NO.1045/2013 (SCCH-7) covers the date of accident. To deny or discard the same, nothing is available on record on behalf of the Respondent No.2, as, though the notice was duly served to him through paper publication, he was remained absent and hence, he is placed as exparte. There is no allegation leveled as against the driver of the offending Tata Sumo bearing Registration No.KA-02-AA-9345 in Ex.P.3 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Tata Sumo. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.2 being the R.C. Owner and the Respondent No.1 being the Insurer of the offending Tata Sumo, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Hence, Issue No.2 is answered accordingly.
44. 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.
The Petitioner is entitled for compensation of Rupees 1,24,566/-
with interest at the rate of 6% p.a. from the date of the petition till the date of payment, from the Respondent No.1.
30 M.V.C.NO.1045/2013(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, entire amount shall be released in the name of Petitioner through account payee cheque, on proper identification.
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 1st day of January, 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 :-
P.W.1 : Mr.Aneesh Veeti @ Annesh
P.W.2 : Dr. Nagaraj B.N.
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True Copy of FIR
Ex.P.2 : True copy of Complaint
31 M.V.C.NO.1045/2013
(SCCH-7)
Ex.P.3 : True copy of Charge Sheet
Ex.P.4 : True copy of Sketch
Ex.P.5 : True copy of Spot Panchanama
Ex.P.6 : True copy of IMV Report
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : Discharge Summaries (2 in nos.)
Ex.P.9 : Appointment Letter dated 12-10-2010
Ex.P.10 : Letter dated 29-9-2014 along with
annexure
Ex.P.11 : 14 Pay Slips
Ex.P.12 : Statement of Account
Ex.P.13 : Form No. 16 for Assessment Year 2013-14
Ex.P.14 : Form No. 16 for Assessment Year 2014-15
Ex.P.15 : Notarised xerox copy of Certificate
Ex.P.16 : Notarised xerox copy of Certificate
Ex.P.17 : Notarised xerox copy of Driving Licence
Ex.P.18 : Notarised xerox copy of Pass Port
Ex.P.19 : Notarised xerox copy of Pan Card
Ex.P.20 : Claim Settlement Advice
Ex.P.21 : Medical biLls (40 in nos.)
Ex.P.22 : Taxi Service Trip Sheets (14 in nos.)
Ex.P.23 : Medical Leave Certificates (3 in nos.)
Ex.P.24 : Photographs (4 in nos.)
Ex.P.25 : CD relating Ex.P24 Photographs
Ex.P.26 : X-ray films (2 in nos.)
Ex.P.27 : Notarised copy of Identity Card relating
to Aneesh Veeti
Ex.P.28 : Case Sheet
Ex.P.29 : Latest X-ray film (2 in nos)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Ramesh. V.
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.