Bangalore District Court
At The Claim Is Not Correct And It Is ... vs No.2 Has Not Adduced Any Evidence On Its ... on 2 March, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 2nd 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.3104/2015
Mr. Yatish B.R. @ Yathi, ..... PETITIONER
Aged about 19 years,
S/o Raju @ Rajegowda,
R/o Dodda Halalli,
Uyyamballi (H),
Kanakapura Tq-562117.
(By Sri. R. V. Hegde, Adv.,)
V/s
1. Mr.Nagaraju. P., ..... RESPONDENTS
S/o. Prasanaiah,
No.62, Anjanapura West,
Harohalli,
Magadi Main Road,
Near Amrutha Medicals,
Bangalore-560091.
(Owner of Car No.KA-41-A-6203)
2. The National Ins. Co. Ltd.,
No.71, D.O.I, 3rd Floor,
P.B.No.2701,
Unity Building Annex,
Mission Road,
Bangalore-27.
2 M.V.C.No.3104/2015
SCH-7
By its Divisional Manager.
(R-1 - By Exparte)
(R-2 - By Sri. K. Nagarajaiah, Adv.,)
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 10,00,000/-.
2. The brief averments of the Petitioner's case are as follows;
a) He claims the following special damages;
1. Expenses incurred on medicine, nourished food, conveyance, etc., Rs. 1,00,000/-
2. Services rendered by relations Rs. 20,000/-
3. Loss of earnings at the rate of Rs.6,000/- per month during disability and rest period
4. Vehicle damage as per bill.
b) On 02.07.2015 at about 6.45 p.m., on Kanakapura- Bangalore Road, N.H-209, near Devara Kaggalahalli, Maralavadi Hobli, Kanakapura Tq, he was traveling in Motor Cycle bearing Registration No.KA-42-U-3535 as a pillion on it and the same was driven by its rider towards Bangalore, slowly, cautiously and 3 M.V.C.No.3104/2015 SCH-7 maintaining on the discipline lane. At that time, one Car bearing Registration No.KA-41-A-6203 came from Bangalore side in a rash and negligent manner with high speed and dashed against the Motor Cycle and caused the accident. With the effect, he and rider of the Motor Cycle fell down and he sustained grievous injuries and the Motor Cycle damaged very badly. The accident occurred only due to the rash and negligent driving of the driver of the Car bearing Registration No.KA-41-A-6203.
c) Due to accidental injuries and subsisting disabilities, he has lost the prospectus of good health, better employment, etc., at a greater extent.
d) At the time of accident, he was studying in final year Diploma and simultaneously, he was going Apprentice Training in Lakshmi Engineering with stipend of Rupees 6,000/- per month. After completion of Apprenticeship and on recruitment, the salary of Rupees 10,000/- per month was assured as initial salary. Only two more months were left over for the completion of the Apprenticeship. Due to the accident and injuries he suffered a great set back on his professional career. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 18.09.2015.
4 M.V.C.No.3104/2015SCH-7
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and has filed the written statement.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The claim petition filed by the Petitioner seeking compensation is not maintainable either in law or on facts.
b) The averments and policy particulars furnished by the Petitioner at the claim is not correct and it is strictly subject to verification and if at all, the policy particulars furnished by the Petitioner is correct, it will produce Insurance Policy extract before this Hon'ble Court at the time of its evidence and hence, the Petitioner is put to strict proof of the same. The driver of the Car had no driving licence as on the date of accident.
c) The total claim of Rupees 10,00,000/- along with interest claimed by the Petitioner is totally exorbitant, fashionable one and without any basis.
d) There is a dereliction of statutory duly on the part of the officer-in-charge of the jurisdictional Police in not forwarding the copy of report neither to it nor to this Hon'ble Court within 30 days from the date of recording information regarding alleged accident as contemplated under Section 158(6) of the Motor Vehicles Act, 1988 and thus, for taking necessary action, such erred Police Officer is to be summoned by the Hon'ble Court by 5 M.V.C.No.3104/2015 SCH-7 exercising the powers conferred upon it by virtue of Rules 237 and 248 of the Karnataka Motor Vehicles Rules, 1989.
e) It is duty bound under Section 134(c) of the Motor Vehicles Act, 1988, to inform and furnish the particulars as envisaged in the Section in connection with the alleged accident to it and further it is required to co-operate with it in contesting the claim as per the terms and conditions of the policy, if any, issued to him and in the present case, if in case, the liability is fastened upon it, they are debarred from seeking indemnification from it due to the lapses on their part to discharge the statutory and contractual obligations.
f) It may be permitted to contest the above case on all the grounds in the event, if the Respondent No.1 failed to participate in the matter by permitting it under grounds.
g) It may be permitted to amend the statement of objections if necessary in the changed circumstances of the case
h) The said petition is bad for non-joinder of necessary parties, namely, insurer of Motor Cycle bearing Registration No.KA-42-U-3535 has contributed to the alleged accident to an extent of 100%.
i) In case of any award, such award amount not to carry interest more than 5% per annum.
6 M.V.C.No.3104/2015SCH-7
j) The Petitioner is put to strict proof that, he has not filed any other petition in any other Forum, Tribunal/Authorities on the same cause of action. Hence, prayed to dismiss the petition with 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 Car bearing Reg.No.KA-41-A-6203 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? 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 two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in- chief and has placed reliance upon Ex.P.1 to Ex.P.26. On the other hand, the Respondent No.2 has not adduced any oral evidence on its behalf. But, the Respondent No.2 has produced the true copy of Insurance Policy.
8. Heard the arguments.
7 M.V.C.No.3104/2015SCH-7
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 5,31,248/-
with interest at the rate
of 8% p.a. (excluding
future medical expenses
of Rupees 30,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 27.07.2015 at about 6.45 a.m., on Bangalore-Kanakapura Main Road, N.H.209, near Devarakaggalahalli, Maralavadi Hobli, Kanakapura Taluk, he was proceeding on the Motor Cycle bearing Registration No.KA-42-U- 3535 as a pillion rider and the same was proceeding towards Bangalore, slowly, cautiously and maintaining on the discipline lane and at that time, one Car bearing Registration No.KA-41-A- 6203 came from opposite side, i.e., Bangalore side, in a rash and negligent manner, with high speed and dashed as against their vehicle and caused the accident. He has further stated that, with effect, he sustained grievous injuries, i.e., fracture right medial 8 M.V.C.No.3104/2015 SCH-7 condyle, fracture right ankle with mallelous fracture, comminuted fracture of right talus and lacerated wound over right thigh and knee and other injuries and immediately after the accident, he was shifted to Sairam Hospital, Bangalore and took inpatient treatment from 02.07.2015 to 10.07.2015. He has further stated that, the accident occurred only due to the rash and negligent driving of the driver of the Car bearing Registration No.KA-41-A- 6203 and the jurisdictional Police have charge sheeted as against the driver of the Car.
11. Though the P.W.1 in his cross-examination has stated that, his uncle, who was driving the Motor Cycle was having a driving licence at the time of accident, he did not care to produce the driving licence relating to his uncle, to show that, at the time of accident, his uncle Santosh, who was riding the Motor Cycle, was having a valid and effective driving licence to ride such class of Motor Cycle. Further, the P.W.1 in his cross-examination has stated that, the width of the road, on which, the accident was taken place was 60 feet and he saw the offending Car with a distance of 10 feet and the Police have also seized their Motor Cycle.
12. But, only based on the said evidence elicited from the mouth of P.W.1 by the Respondent No.2, the above said entire evidence of P.W.1, which has been stated in his examination-in- chief cannot be thrown away, as, to corroborate his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Mahazar, Ex.P.5 MVI 9 M.V.C.No.3104/2015 SCH-7 Report, Ex.P.6 Wound Certificate, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summary, Ex.P.14 Photographs 9 in numbers, Ex.P.15 C.D. relating to the Ex.P.14 Photographs and Ex.P.18 X-rays 4 in numbers and has also produced Ex.P.23 OPD Record, Ex.P.24 Inpatient Record, Ex.P.25 X-ray Films 10 in numbers and Ex.P.26 CT Scan 5 in numbers, through P.W.3, who is a treated Doctor, which clearly disclosed that, the entire negligence is on the part of the driver of the offending Car bearing Registration No.KA-41-A- 6203, i.e., Respondent No.1, who was a driver-cum-owner of the said offending Car in the commission of the said road traffic accident, wherein, the Petitioner was proceeding as a pillion rider on the Motor Cycle bearing Registration No.KA-42-U-3535 and due to the said impact, the Petitioner had sustained 3 grievous injuries and one simple injury and by admitting as an inpatient from 02.07.2015 to 10.07.2015, i.e., 9 days, he took treatment to the said accidental injuries at Sri Sai Ram Hospital, which is clear from the following discussion. Furthermore, the P.W.1 has clearly stated in his cross-examination that, his uncle Santosh was riding the Motor Cycle at the time of accident and at the time of accident, they were proceeding on the Motor Cycle from Devarakaggalahalli to Bangalore on the left side of the road and at the time of accident, they were proceeding with a speed of 30-35 kms per hour. He has further clearly stated that, his uncle has only sustained simple injuries in the alleged accident and his uncle has lodged a complaint before the Police about the accident and the registration number of the offending Car is KA-41-A-6203. He has further clearly stated that, after the accident, he was shifted to Sri Sairam Hospital and Dr. Prakash has treated him in the said 10 M.V.C.No.3104/2015 SCH-7 Hospital. Further, the P.W.1 has clearly denied the suggestions put to him by the Respondent No.2 that, his uncle himself dashed the Motor Cycle to the offending Car and as such, after one day of the accident, his uncle has lodged a complaint and the alleged accident had taken place due to the negligence on the part of his uncle. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth to consider its specific defence. Further, the Respondent No.2 has not adduced any evidence on its behalf to consider its defence. More so, the Respondent No.1, who was an owner-cum-driver of the offending Car bearing Registration No.KA- 41-A-6203, is placed as exparte.
13. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the relative of the Petitioner, who was also a rider of the Motor Cycle bearing Registration No.KA-42-U-3535 has lodged Ex.P.2 Complaint before the Harohalli Police as against the driver of the offending Indica Car bearing Registration No.KA- 41-A-6203 by alleging that, on 02.07.2015 at 6.45 a.m., when he was proceeding along with the Petitioner on the said Motor Cycle towards Bangalore and they were proceeding near Deverakaggalahalli Road, N.H-209, at that time, the offending Car bearing Registration No.KA-41-A-6203 came from Bangalore towards Kanakapura with very high speed, rash and negligent manner by its driver and dashed to their Motor Cycle and due to the said impact, both of them fell down along with the Motor Cycle and he has not sustained any injuries, but, the Petitioner has sustained grievous injuries on his right leg and he has shifted him 11 M.V.C.No.3104/2015 SCH-7 to the Hospital and hence, after one day delay of the accident, he has lodged the complaint and hence, he prayed to take necessary legal action as against the driver of the offending Car and based on Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Car for the offences punishable under Section 279 and 337 of IPC and Section 187 of IMV Act. It is pertinent to note here that, though the accident was taken place on 02.07.2015 at 6.45 a.m., Ex.P.2 Complaint is lodged on 03.07.2015 at 6.15, which disclosed that, there is one day delay in lodging the complaint in respect of the said road traffic accident. But, the said delay of one day no way affects to consider the case of the Petitioner, as, the Complainant, who is an eye witness of the said road traffic accident, has clearly narrated about the delay in lodging the complaint in Ex.P.2 Complaint itself by stating that, the Petitioner, who was a pillion rider had sustained grievous injury to his right leg in the said road traffic accident and he was immediately shifted him to the Hospital and as such, the said delay is caused. Furthermore, the Complainant is a nearest relative of the Petitioner, who was riding the said Motor Cycle at the time of accident and as such, he had to first look after the Petitioner to give necessary and required treatment in the Hospital.
14. The contents of Ex.P.3 Spot Panchanama, Ex.P.4 Vehicle Seizure Mahazar and Ex.P.5 MVI Report further clearly disclosed that, the entire negligence is on the part of the Respondent No.1 in driving the offending Indica Car bearing Registration No.KA-41-A-6203, which came with very high speed, 12 M.V.C.No.3104/2015 SCH-7 rash and negligent manner and dashed to the Petitioner's Motor Cycle bearing Registration No.KA-42-U-3535, wherein, the Petitioner was proceeding as a pillion rider and there was no negligence on the part of the rider of the said Motor Cycle. The damages caused to both the vehicles are clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said 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.
15. The contents of Ex.P.6 Wound Certificate disclosed that, with alleged history of road traffic accident on 02.07.2015, the Petitioner was admitted in Sri Sai Ram Hospital on 02.07.2015 itself and on examination, it is found that, he sustained injuries, such as, right knee medial condoyle, right ankle medial 1 post malleolus fracture, right ankle talus fracture and lacerated wound over right thigh and knee, i.e., 3 grievous injuries and one simple injury and by admitting as an inpatient from 02.07.2015 to 10.07.2015, i.e., 9 days, he took treatment to the said accidental injuries.
16. The contents of Ex.P.8 Discharge Summary, Ex.P.14 photographs 9 in numbers, Ex.P.15 C.D relating to Ex.P.14 Photographs, Ex.P.18 X-ray Films 4 in numbers, Ex.P.23 Outpatient Record, Ex.P.24 Inpatient Record, Ex.P.25 X-ray Films 10 in numbers and Ex.P.26 CT Scan Films 5 in numbers further disclosed that, the Petitioner had sustained 3 grievous injuries and by admitting as an inpatient from 02.07.2015 to 10.07.2015, 13 M.V.C.No.3104/2015 SCH-7 he took treatment to the said accidental injuries at Sri Sai Ram Hospital. Further, the P.W.3, who is a treated Doctor in his examination-in-chief, has stated that, with a alleged history of road traffic accident on 02.07.2015 at 6.30 a.m., near Jakkasandra, Kanakapura Road, Bengaluru, the Petitioner was admitted in their Hospital and he has sustained injuries, i.e., fracture right tibial condyle communited, fracture right medial malloeli and posterior malloeli, fracture right talus communited, fracture right fibula, right thigh and knee lacerated wound and he was discharged on 10.07.2015. From this medical evidence, both oral and documentary, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained 3 grievous injuries and one simple injury.
17. 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 Indica Car bearing Registration No.KA-41-A-6203 by its driver itself, i.e., Respondent No.1 itself, who is a driver- cum-owner of the offending Indica Car, the said road traffic accident was taken place on 02.07.2015 at 6.45 a.m., in front of land belonging to Dayanandasagar Vidya Samasthe, N.H-209, Kanakapura-Bangalore Main Road, which dashed to the Motor Cycle bearing Registration No.KA-42-U-3535, which was proceeding from Kanakapura towards Bangalore and due to the said impact, the Petitioner fell down and had sustained grievous injuries on his right leg and the Respondent No.1 fled away from the accidental spot along with the offending Car and as such, 14 M.V.C.No.3104/2015 SCH-7 after thorough investigation, the Investigating Officer has filed a charge sheet as against the Respondent No.1 for the offences punishable under Section 279 and 337 of IPC R/w Section 187 of IMV Act. There is no allegation leveled by the Investigating Officer as against the rider of the said Motor Cycle in Ex.P.7 Charge Sheet about his negligence in the commission of the road traffic accident.
18. 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 Car bearing Registration No.KA-41-A-6203 by its driver itself, i.e., the Respondent No.1, the said road traffic accident was taken place and there was no negligence on the part of the rider of the Motor Cycle bearing Registration No.KA-42-U-3535 and the said offending Indica Car as well as its driver, i.e., the Respondent No.1 are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries and one simple injury. Accordingly, I answered Issue No.1 in the Affirmative.
19. ISSUE NO.2 :- The Petitioner has produced Ex.P.11 Identity Card and Ex.P.12 Challans with E-mail Interview Letters 2 in numbers, which clearly disclosed that, the date of birth of the Petitioner is on 12.05.1996. The date of accident is on 02.07.2015. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 19 years old. Hence, the age of the Petitioner is considered as 19 years at the time of accident.
15 M.V.C.No.3104/2015SCH-7
20. The P.W.1 has stated that, prior to the accident, he was hale and healthy and was studying in Final Year Diploma of 4 years Course in the Government Tool Room and Training Centre, Kanakapura, wherein, he was doing Tool and Die Maker. He has further stated that, his education system was of 4 years course and he has already completed 3 years study and for 4th year, which was an Apprentice Training year and through the College, he was working as a stipendiary basis in Lakshmi Engineering's, C-271, 3rd Main Road, 7th Cross, 1st Stage, Peenya Industrial Area, Bangalore, wherein, his training period was one year, i.e., from 10.10.2014 to 09.10.2015 and his training period was completed about 9 months and he used to get Rupees 6,000/- per month as stipend. The Petitioner has produced Ex.P.11 Identity Card and Ex.P.13 Receipts relating to College Fees 5 in numbers. The Petitioner has also examined one Mr. Shekhar. R., Technician of Lakshmi Engineering's as P.W.2, who has stated in his examination-in-chief that, the Petitioner was joined their Company on 10.10.2014 for I year In plant Trainee up to 09.10.2015 and he was getting Rupees 6,000/- stipend per month. The P.W.2 has produced Ex.P.19 Authorization Letter dated 18.12.2015, Ex.P.20 Attendance Register relating to the Petitioner, Ex.P.21 VAT Registration Certificate along with annexure and Ex.P.22 Letter dated 02.09.2014. The P.W.2 has further stated in his cross- examination that, the training period of the Petitioner is not yet completed and he had completed training for 9 months and the stipendiary amount was given to the Petitioner by way of cash. On perusal of the said oral version of P.W.1 and P.W.2 as well as the contents of the said material documents, it clearly goes to show 16 M.V.C.No.3104/2015 SCH-7 that, at the time of accident, the Petitioner was studying in the final year Diploma of 4 years course in the Government Tool Room and Training Centre, Kanakapura and he was also working as a stipendiary trainee in Lakshmi Engineering's by receiving Rupees 6,000/- per month as stipend. By producing the material documents and by examining the P.W.2, the Petitioner has clearly proved his avocation and income at the time of accident. Therefore, based on the said material evidence, it can be safely held that, at the time of accident, the Petitioner was studying in final year Diploma of 4 years course in the Government Tool Room and Training Centre, Kanakapura and he was also working as a Stipendiary Trainee in Lakshmi Engineering's by receiving Rupees 6,000/- per month as stipend. Hence, the income of the Petitioner is considered as Rupees 6,000/- per month at the time of accident.
21. The P.W.1 has stated that, during inpatient period, he underwent 3 operations to his right leg and implants were fixed all the 3 fractures and other injuries were treated conservatively. He has further stated that, on discharge, the Doctor advised him to come for regular follow-up treatment and physiotherapy and as per the Doctor's advise, he took regular follow-up treatment and till today, he is under follow-up treatment. He has further stated in his cross-examination that, after discharge, he had taken follow-up treatment about 15 days. The P.W.3, who is a treated Doctor has stated in his examination-in-chief that, the Petitioner was treated as emergency basis with open reduction internal fixation with buttress plate and screws for right tibial condyle 17 M.V.C.No.3104/2015 SCH-7 fracture with open reduction internal fixation with CC screws for right talus fracture, open reduction internal fixation with CC screws for right medial and posterior malloeli fracture with right thigh and knee wound debridement and suturing was done on 02.07.2015. He has further stated that, after discharge, the Petitioner came to their Hospital to take follow-up treatment for 6 times and the same has been mentioned in Ex.P.23 Outpatient Record. Based on Ex.P.6 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.14 Photographs, Ex.P.15 C.D relating to Ex.P.14 Photographs, Ex.P.18 X-ray Films, Ex.P.24 Inpatient Record, Ex.P.25 X-ray Films and Ex.P.26 C.T. Scan Films, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioners had sustained injuries, such as, right knee medial condoyle, right ankle medial 1 post malleolus fracture, right ankle talus fracture and lacerated wound over right thigh and knee, i.e., 3 grievous injuries and one simple injury and by admitting as an inpatient from 02.07.2015 to 10.07.2015, i.e., 9 days, he took treatment to the said accidental injuries in Sri Sai Ram Hospital. It is clearly mentioned in the said Ex.P.8 Discharge Summary and Ex.P.24 Inpatient Records that, during the course of treatment, on 02.07.2015 under SAB right talus-open reduction and internal fixation CC screws, right ankle medial and posterior malleous fixed and screws, right tibia-medial condyle ORIF and buttress plate and screws, right thigh and knee wound debridement and suturing done and he was discharged with an advice. From this medical evidence, it is made crystal clear that, the Petitioner is having implants in situ to the fracture site. Therefore, even though the Petitioner was discharged from the 18 M.V.C.No.3104/2015 SCH-7 Hospital on 10.07.2015, he was very much required the regular follow-up treatment to the said accidental injuries as per the advise of the treated Doctor. Therefore, the evidence stated by the P.W.1 and P.W.3 in respect of follow-up treatment can very well be believed and accept and it is also supported by the contents of Ex.P.23 OPD Record.
22. The P.W.1 has stated that, even after long duration of treatment, he has pain and swelling in his right leg. He has further stated that, he cannot sit, stand, walk for long time, he cannot bare weight on his right leg, he cannot climb stairs and cannot lay right leg on floor normally. He has further stated that, since injury to right ankle, ugly Car marks in right leg and the Doctor opined that, the disability on right ankle cannot be reduced at any moment due to above reasons. He has further stated that, totally, he is not active as he was before the accident and even today, he cannot walk without support because of this disability he constrained to take help of others for his routine. He has further stated that, since the disability cannot be reduced, he bound to continue to take the help of servant in his day to day life. He has further stated that, he met with an accident just 3 months before the completion of the course and if he did not suffer any injuries and disabilities in the accident, he could have been completed the course and enjoyed the job with attractive scale. He has further stated that, the said Company assured him a salary of Rupees 10,000/- per month and initial payment apart from other facilities, which would have been the strong structural base for his future carrier and now the same has been lost and he has no 19 M.V.C.No.3104/2015 SCH-7 Apprentice Certificate because of incompletion of course and he has lost one year academic course. He has further stated that, for the apprentice training, he has to join the course from the beginning, which he has already lost and no job will be given without Apprentice Certificate and Diploma Certificate and now, he has no job, no certificate and no earnings because of accidental injuries. He has further stated that, when he was doing apprentice course, he had applied 2 Government Posts, viz., Fireman post in Karnataka State Fire and Emergency Services Recruitment-2015 and Junior Lineman Post in Bescom and Interview and Entrance Test was fixed, but, he failed to attend due to injuries and disabilities and hence, he has lost the bright job opportunity, which was in front of his threshold. The Petitioner has produced Ex.P.9 Letter dated 18.10.2015.
23. The P.W.2 has stated in his examination-in-chief that, the Petitioner met with an accident on 02.07.2015 and thereafter, he was not working with him and did not complete one year training period and they issued certificate from their Firm. The P.W.2 has produced Ex.P.22 Letter dated 02.09.2014.
24. The P.W.3, who is a treated Doctor, has stated in his examination-in-chief that, he examined the Petitioner on 22.12.2015 and he complaints of pain with decreased range of movement with swelling right knee, ankle and subtalar joint. He has further stated that, the Petitioner is having difficulty in walking long distance and sitting cross legged and squatting, H/O difficult in climbing stairs, H/O difficulty in Carrying out daily 20 M.V.C.No.3104/2015 SCH-7 activities. He has further stated that, on examination of right knee and leg he found multiple surgical Car and primary Car present over anteriorly and medially healed by secondary intention, car fracture site and joint line tenderness present, implant palpable underneath Car, range of movement flexion decreased by 20 degree, extension decreased by 5 degree, thigh muscle wasting of 1.5 cms., present. He has further stated that, on examination of right ankle, he found multiple surgical Car and primary Car present over anteriorly and medially healed by secondary intention, car fracture site and joint line tenderness present, range of movement dorsiflexion decreased by 15 degree, planter flexion decreased by 5 degree aversion decreased by 10 degree, inversion decreased by 5 degree, calf muscle wasting of 1 cms present. He has further stated that, X-ray done on 22.12.2015 right knee with leg shows mal-union of tibial condoyle fracture with implants in situ and mal-union of fibula fracture-X-Ray right ankle shows mal-union of posterior malloeli fracture with implants in situ, mal- union of talus fracture with secondary osteoarthritis with implants in situ. He has further stated that, the Petitioner has 23.80 % disability to the whole body assessed according to the Guidelines and Gazette Notification, Regd.NoDL33004/99 (Extraordinary) Part II, Sec.1, June 13, 2001 issued by the Ministry of Social Justice and Empowerment, GOI. He has further stated in his cross-examination that, the fractures are ml-united and due to fracture pattern and communication fracture, the fractures are mal-united and no negligence on the part of the Petitioner and the extent of 23.80% disability is relating to the whole body.
21 M.V.C.No.3104/2015SCH-7
25. But, based on the said oral version of P.W.1 to P.W.3 coupled with the contents of the said material documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent disability of right lower limb and to the whole body of 23.80%, as, the P.W.3, who is a treated Doctor has not specifically assessed the permanent physical and functional disability of Petitioner, which is arising out of the said accidental injuries. Further, the P.W.3 in his cross-examination has stated that, due to the said fracture, the Petitioner is not suffering from any difficulties to read and write and there is chance of union of fracture sites. He has further stated that, he cannot say, if the implants are removed, how much extent of disability may be reduced. Further, when the Petitioner is having implants in situ and if the said implants are removed as per the advise of the Doctors, the said extent of disability would definitely reduced. Furthermore, at the time of accident, the Petitioner was 19 years old and as such, the chances are more for proper union of fracture sites. Therefore, the said extent of 23.8% disability to the whole body as stated by the P.W.3 cannot be accepted.
26. However, at the time of accident, the Petitioner was 19 years old and he had sustained injuries, such as, right knee medial condoyle, right ankle medial 1 post malleolus fracture, right ankle talus fracture and lacerated wound over right thigh and knee, i.e., 3 grievous injuries and one simple injury and by admitting as an inpatient from 02.07.2015 to 10.07.2015, i.e., 9 days, he took treatment to the said accidental injuries and now 22 M.V.C.No.3104/2015 SCH-7 also, the Petitioner is having implants in situ and as per the evidence of P.W.3, there is mal-union of Tibial Condoyle fracture with implants in situ with fibula fracture with implants in situ and talus fracture with secondary osteoarthritis with implants in situ. By considering these material facts, it is made crystal clear that, due to the said accidental injuries, the Petitioner is suffering from permanent physical 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 18% to the whole body, which is acceptable one. Therefore, the Petitioner is entitling for the compensation under the following heads.
27. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 18%. 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 18%.
28. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 19 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 18.
29. As the Petitioner is suffering from permanent physical and functional disability of 18% to the whole body. The notional 23 M.V.C.No.3104/2015 SCH-7 income of the Petitioner is already considered as Rupees 6,000/- per month. Therefore, the loss arising out of the said 18% disability for monthly income of Rupees 6,000/- by applying multiplier 18 comes to Rupees 2,33,280/-, i.e., (Rs.6,000/- x 12 x 18 x 18%).
30. As per Ex.P.6 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 3 grievous injuries and one simple injury. The Petitioner was in the Hospital as an inpatient from 02.07.2015 to 10.07.2015, i.e., for 9 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
31. As it is already observed that, the age of the Petitioner was 19 years. He has to lead remaining his entire life with 18% 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.
32. It is clearly stated by the Petitioner in his examination- in-chief that, prior to the accident he was studying in Final year Diploma of 4 years course in the Government Tool Room and Training Centre, Kanakapura. From this, it appears that, the Petitioner was a student. Further, at the time of accident, the Petitioner was 19 years old. From this, it appears that, at the time 24 M.V.C.No.3104/2015 SCH-7 of accident, the Petitioner is a bachelor. In the said road traffic accident, the Petitioner had sustained 3 grievous injuries and one simple injury. Further, it is already come to the conclusion that, due to the accidental injuries, the Petitioner is suffering from permanent and physical disability of 18% to the whole body. By considering the same, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 20,000/- as compensation towards loss of marriage prospects.
33. The Petitioner had sustained 3 grievous injuries and one simple injury and he was in the Hospital as an inpatient for 9 days and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 6,000/- per month, a sum of Rupees 18,000/- is awarded towards loss of income during the laid up period.
34. The P.W.1 has stated that, he has spent around Rupees 2,00,000/- towards medical expenses, nourished food, conveyance and other incidental expenses and he is producing available Medical Bills of Rupees 1,19,968/- and some bills were not obtained and some were lost at home. In this regard, the Petitioner has produced Ex.P.16 Medical Prescriptions 50 in numbers and Ex.P.17 Medical Bills 51 in numbers, which is amounting of Rupees 1,19,968/-. No doubt, the P.W.1 in his cross-examination has stated that, no signature is found on the Ex.P.16 Medical prescriptions and in serial No.36 of Ex.P.16 Medical prescriptions, the name Yashodamma is strikeout. He has further stated that, traveling bills are also included in Ex.P.17 25 M.V.C.No.3104/2015 SCH-7 Medical Bills and he has no hurdle to examine the author of the traveling bills. Further, advance bill amount of Rupees 75,000/- is included in serial No.1 of Ex.P.17 Medical Bills. But, based on the said grounds, the amount of Rupees 1,19,968/-, which covered under Ex.P.17 Medical Bills cannot be discarded, as, the name of the Petitioner is clearly mentioned in all Ex.P.17 Medical Bills and in Serial No.1 of Ex.P.17 Medical Bills, the total bill amount is of Rupees 81,100/- and out of which, Rupees 6,100/- is given as relief by adjusting the advance amount of Rupees 75,000/-. Hence, the amount covered under Ex.P.17 Medical Bills can very well be taken into for consideration. The Petitioner has taken treatment at Sri Sai Ram Hospital, wherein, he was taken treatment as an inpatient from 02.07.2015 to 10.07.2015, i.e., for 9 days. Considering the nature of the injuries, line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 1,19,968/-, which covered under Ex.P.17 Medical Bills to the Petitioner.
35. The P.W.1 has stated that, he met with an accident just 3 months before the completion of the course and if he did not suffer any injuries and disabilities in the accident, he could have been completed the course and enjoyed the job with attractive scale and now he has been lost and he has no Apprentice Certificate because of incompletion of course and he has lost one year academic course. The P.W.2 has stated that, the Petitioner was joined their Company on 10.10.2014 for 1 year In 26 M.V.C.No.3104/2015 SCH-7 plant Trainee up to 09.10.2015 and after the accident on 02.07.2015, he was not working with them and he did not complete his one year training period. The same has been clearly noted in Ex.P.9 Letter dated 18.10.2015. From this, it is made crystal clear that, due to the accidental injuries, the Petitioner has lost his education and future Carrier. Hence, it is necessary to award compensation towards loss of education. Hence, a sum of Rupees 20,000/- is awarded to the Petitioner towards loss of education.
36. The P.W.1 has stated that, still there are implant in his leg and for the removal of the same, it may cost around Rupees 50,000/-. The P.W.3 has stated that, the Petitioner require multiple surgery for secondary Osteoarthritis of ankle joint in the way of ankle joint fusion and removal of implants, which may cost him about Rupees 40,000/-. It is clearly mentioned in Ex.P.8 Discharge Summary about the right talus - Open reduction and internal fixation CC Screws, right ankle medical and posterior malleous fixed and screws, right tibia - medical condyle ORIF and buttress plate and screws and right thing and knee wound debridement and suturing done, which disclosed about the insertion of implants in situ. The said implants in situ have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.3 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 30,000/-.
27 M.V.C.No.3104/2015SCH-7
37. As the Petitioner was taken treatment as an inpatient for 9 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.,
38. 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. 2,33,280-00 arising out of 18% Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 20,000-00
4. Marriage Prospects Rs. 20,000-00 Loss of income during laid
5. Rs. 18,000-00 up period
6. Actual medical expenses Rs. 1,19,968-00
7. Loss of Education Rs. 20,000-00
8. Future medical expenses Rs. 30,000-00
9. Conveyance Rs. 5,000-00
10. Attendant Charges Rs. 5,000-00
11. Food, Nourishment & Rs. 10,000-00 Diet charges TOTAL Rs. 5,31,248-00
39. In all, the Petitioner is entitled for total compensation of Rupees 5,31,248/- along with interest at the rate of 8% per annum on the above said sum (excluding future medical expenses of Rupees 30,000/-) from the date of petition till payment.
28 M.V.C.No.3104/2015SCH-7
40. 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 Car bearing Registration No.KA-41-A-6203 by its driver itself, i.e., the Respondent No.1, the said road traffic accident was taken place and there was no negligence on the part of the rider of the Motor Cycle bearing Registration No.KA-42-U-3535 and the said offending Indica Car as well as its driver, i.e., the Respondent No.1 are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 3 grievous injuries and one simple injury. The Petitioner in the cause title of the petition has mentioned that, the Respondent No.1 is an Owner of the offending Car bearing Registration No.KA-41-A-6203. The Respondent No.2 has produced the true copy of Insurance Policy relating to the offending Car bearing Registration No.KA-41-A-6203. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was an Owner-cum-driver and the Respondent No.2 was an insurer of the offending Indica Car bearing Registration No.KA-41- A-6203 and its Insurance Policy was valid, which covers the date of accident. There is no allegation made by the Investigating Officer as against the Respondent No.1 in Ex.P.7 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of offending Indica Car. The violation of the terms and conditions of the Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner-cum-driver and the Respondent No.2 being the Insurer of the offending Car bearing Registration No.KA-41-A-6203, are 29 M.V.C.No.3104/2015 SCH-7 jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. Hence, Issue No.2 is answered accordingly.
41. 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, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 5,31,248/-
with interest at the rate of 8% p.a. (excluding future medical expenses of Rupees 30,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
30 M.V.C.No.3104/2015SCH-7 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 him, corrected and then, pronounced by me in the open Court on this, the 2nd 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 :-
P.W.1 : Yathish D.R. @ Yathi
P.W.2 : Sri. Shekhar. R.
P.W.3 : Dr. Mahadev Kumar. P.
31 M.V.C.No.3104/2015
SCH-7
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 Spot Panchanama
Ex.P.4 : True copy of Vehicle Seizure Mahazar
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 : Letter dated 18.10.2015
Ex.P.10 : Notarised xerox copy of Ration Card Ex.P.11 : Notarised xerox copy of Identity Card relating to Yathish D.R. Ex.P.12 : Challans with E-mail Interview Letters Ex.P.13 : Receipts relating to College fee (5 in nos.) Ex.P.14 : Photographs (9 in nos.) Ex.P.15 : CD relating to Ex.P14 Photographs Ex.P.16 : Medical Prescriptions (50 in nos.) Ex.P.17 : Medical Bills (51 in nos.) Ex.P.18 : X-ray films (4 in nos.) Ex.P.19 : Authorisation Letter dated 18.12.2015 Ex.P.20 : Notarised xerox copy of Staff Attendance Register relating to Yathish D.R. Ex.P.17 : Notarised xerox copy of VAT Registration Certificate along with Annexure Ex.P.18 : Notarised xerox copy of Letter dated 02.09.2014 Ex.P.23 : Outpatient Record Ex.P.24 : Inpatient Record Ex.P.25 : X-ray films (10 in nos.) Ex.P.26 : CT Scan films (5 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-32 M.V.C.No.3104/2015
SCH-7
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.