Bangalore District Court
In Mvc No.4281/2014 vs Has Been Examined As Rw 2 And Through ... on 17 March, 2016
SCCH-1 1 MVC: 4281/14 to 4285/14
BEFORE THE MEMBER PRL.M.A.C.T., & CHIEF JUDGE,
COURT OF SMALL CAUSES, BANGALORE
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
MEMBER, PRL.M.A.C.T
DATED: 17th Day of March'2016
M.V.C.No.4281 to 4285/2014
BETWEEN:-
Smt.Rajamma,
W/o.Prakash,
Aged 28 years,
Resident of
Mallarabanavadi,
Nelamangala Taluk,
Bangalore Rural District.
Petitioner in MVC No.4281/2014
Kumari Tejashwini,
D/o.Prakash,
Aged 09 years,
Mallarabanavadi,
Nelamangala Taluk,
Bangalore Rural District.
Since the petitioner is minor
Represents her mother Rajamma
As natural guardian
Petitioner in MVC No.4282/2014
Master Darshan,
S/o.Prakash,
Aged 04 years,
Mallarabanavadi,
Nelamangala Taluk,
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SCCH-1 2 MVC: 4281/14 to 4285/14
Bangalore Rural District.
Since the petitioner is minor
Represents her mother Rajamma
As natural guardian
Petitioner in MVC No.4283/2014
Smt.Rathnamma,
W/o.T.Chandrashekaraiah,
Aged 45 years,
Resident of No.74,
Mallarabanavadi,
Nelamangala Taluk,
Bangalore Rural District.
Petitioner in MVC No.4284/2014
Sri Ramesh,
S/o.Late T.Chandrashekaraiah,
Aged 31 years,
Resident of No.74,
Mallarabanavadi,
Nelamangala Taluk,
Bangalore Rural District.
Petitioner in MVC No.4285/2014
(By Sri R.Chandrashekar, Advocate)
AND:-
1) Bajaj Allianz General Insurance Co., Ltd.,
Golden Heights, 4th Floor,
No.1/2, 59th 'C' Cross,
4th M Block, Rajajinagar, Bangalore 560 010.
(Policy No.OG-15-1701-1801-00015750,
Valid from 26.06.2014 to 25.06.2015.
2) Sri Arun M.S.,
S/o.Suryanarayana,
No.16/A, Sri Kishu Sadana,
Vinayaka Nagar,
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SCCH-1 3 MVC: 4281/14 to 4285/14
1st Main, Bagalagunte,
Bangalore 560 073.
(Respondent No. 1 - Sri V.Srihari Naidu, Advocate in all the
petitions.
(Respondent No.2 - Exparte in all the petitions)
COMMON JUDGMENT
All these petitions are arising out of the same accident and
therefore, they are disposed of by this common judgment.
2. The petitioners have filed these petitions claiming
compensation of Rs.6 lakhs, Rs.2 lakhs, Rs.2 lakhs, Rs.2 lakhs
and Rs.5 lakhs, respectively from the respondents 1 and 2, the
insurer and owner of the car No.KA.02/MD.6716, jointly and
severally on account of the injuries sustained by them in the
motor vehicle accident that occurred on 30.08.2014 at about
07.00 pm., near S.B.T.Petrol Bunk, Nelamangala-Kunigal Road,
NH-48, Kasaba Hobli, Nelamangala Taluk.
3. Brief facts of the case are that:- On 30.08.2014, at about
07.00 pm., the petitioner in MVC No.4285/2014 as driver and
petitioners in other cases, as inmates, were traveling in an
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SCCH-1 4 MVC: 4281/14 to 4285/14
Autorickshaw bearing registration No.KA.52/5781 from
Nelamangala towarda Mallarabanavadi. When the autorickshaw
was going near SBT Petrol Bunk on NH 48 Road, at that time, a
Santro car bearing No.KA.02/MD.6716 came from Nelamangala
side in rash and negligent manner and in high speed and dashed
against the autorickshaw and caused the accident.
4. In the accident, all the petitioners suffered grievous injuries
and hence, they have been immediately shifted to Maturhshree
Hospital, Nelamangala, wherein they took treatment as inpatient
and spent substantial amount for treatment.
5. The petitioner in MVC No.4281/2014 contends that in the
accident, she suffered grievous injuries and treated as inpatient at
Mathrushree Hospital for 2 and spent Rs.50,000/- for treatment.
It is her further case that she was a tailor by profession and
earning Rs.7,000/- per month and on account of the accidental
injuries, she suffered permanent disability and thereby suffered
loss of income and also the earning capacity. Hence, she claimed
compensation of Rs.6 lakhs from the respondents.
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SCCH-1 5 MVC: 4281/14 to 4285/14
6. The petitioner in MVC No.4282/2014, is a minor
represented by her mother and it is contended that in the
accident, she suffered fracture injuries and treated as inpatient at
Mathrushree Hospital for 3 days and spent Rs.75,000/- for
treatment. It is her further case that she is a student and on
account of the accidental injuries, she suffered permanent
disability and thereby suffered loss of educational career. Hence,
she claimed compensation of Rs.2 lakhs from the respondents.
7. The petitioner in MVC No.4283/2014, is also a minor
represented by his mother and it is contended that in the
accident, he suffered grievous injuries and treated as inpatient at
Mathrushree Hospital for 2 days and spent Rs.25,000/- for
treatment. It is his further case that he is a student and on
account of the accidental injuries, he suffered permanent
disability and thereby suffered loss of educational career. Hence,
he claimed compensation of Rs.2 lakhs from the respondents.
8. The petitioner in MVC No.4284/2014 contends that in the
accident, she suffered grievous injuries and treated as inpatient at
Mathrushree Hospital for 2 and spent Rs.20,000/- for treatment.
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SCCH-1 6 MVC: 4281/14 to 4285/14
It is her further case that she was a house wife and on account of
the accidental injuries, she suffered permanent disability and
thereby she had to engage some body to attend to her work and
on account of permanent disability, she suffered loss of earning
capacity. Hence, she claimed compensation of Rs.2 lakhs from
the respondents.
9. It is contended that in the accident, the petitioner in MVC
No.4285/2014 has suffered grievous injuries and was treated at
Mathrushree Hospital, Nelamangala as inpatient and spent
substantial amount for treatment. The petitioner's case is that he
was aged 31 years and was self employed and driving
autorickshaw and earning Rs.8,000/- per month. On account of
the accident, he suffered permanently disability and thereby
suffered loss of income and lost earning capacity. Hence, the
petitioner in MVC No.4285/2014 prays to award compensation of
Rs.5 lakhs from the respondents.
10. Pursuant to filing of these petitions, notice was issued to
the respondents. The respondent No.2, the owner of the car
remained absent in all the cases and hence, he has been placed
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SCCH-1 7 MVC: 4281/14 to 4285/14
exparte. The respondent No.1, in all the cases appeared through
its Counsel and filed statement of objections.
11. The first respondent in its reply, contended that the
petitions are not maintainable either in law or on facts and hence,
all the petitions are liable to be rejected.
12. It is contended that the petition is bad for non joinder of
necessary and proper parties as the petitioners have failed to
implead the owner and insurer of the autorickshaw
No.KA.52/5781. It is further contended that the owner of the
autorickshaw has willfully permitted/allowed more persons to
travel in the same as against the seating capacity and the said
autorickshaw was plying beyond the permitted area at the time of
accident and inspite of that, the petitioners, after colluding with
the jurisdictional police, got filed a false charge sheet against the
driver of the Car No.KA.02/MD.6716 and hence, the petitions are
liable to be dismissed on this ground alone.
13. It is contended that the averments in column No.1 to 6 of
the petitions are not within the knowledge of the respondent No.1
and hence, put the petitioners to strict proof of the same.
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SCCH-1 8 MVC: 4281/14 to 4285/14
14. With regard to the averments in column No.8 to 10 of the
petition to the effect that the accident took place due to the rash
and negligent driving of the car No.KA.02/MD.6716 by its driver,
it is contended that the respondent No.1 is given to understand
that the driver of the car was driving the same carefully,
cautiously and on the correct side of the road and at that time,
the driver of the autorickshaw driven the same in rash and
negligent manner and without holding the driving licence and
dashed against the Santro car and thereby caused the accident.
15. The respondent No.1 has denied the averments of the
petitions in paras 11 to 14 with regard to the nature of injuries,
period of treatment and the alleged disabilities suffered by the
petitioners and the amount spent for treatment by these
petitioners and it is contended that the injuries suffered by these
petitioners are simple in nature and already, the petitioners have
recovered from the said injuries and leading normal life.
16. However, the respondent No.1 admits that it has insured
the car No.KA.02/MD.6716 in the name of second respondent and
the liability if any is subject to terms and conditions of the policy.
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SCCH-1 9 MVC: 4281/14 to 4285/14
17. It is contended that the amount of compensation claimed
by the petitioners' in all these cases is exorbitant and not based
on any norms. Hence, for all these reasons, the first respondent
has sought for dismissal of all the petitions.
18. Based on the above pleadings, the following common issues
were framed:-
1) Whether the petitioner proves that she/he sustained
grievous injuries in a Motor Vehicle Accident that
occurred on 30.08.2014 at about 07.00 pm., at
Nelamangala-Kunigal NH 48, SBT Petrol Bunk, Kasaba
Hobli, Nelamangala Taluk, within the jurisdiction of
Nelamangala Rural Police Station on account of rash and
negligent driving of the Santro Car bearing registration
No.KA.02/MD.6716 by its driver?
2) Whether the respondent No.1 proves that the accident
occurred on account of negligent act of the petitioner?
3) Whether the petitioner is entitled for compensation? If so,
how much and from whom?
4) What order?
19. In order to prove their case, the petitioner in MVC
No.4281/2014 got herself examined as PW 1, the petitioner in
MVC No.4281/2014 has also deposed as PW 1 for and on behalf of
the minor petitioners in MVC No.4282/2014 and 4283/2014, the
petitioner in MVC No.4284/2014 got herself examined as PW 2
and the petitioner in MVC No.4285/2014 got himself examined as
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SCCH-1 10 MVC: 4281/14 to 4285/14
PW 3. They have also examined Dr.C.V.Kumar and Dr.Ashwini
B.R., as PW 4 and 5 and placed reliance on 57 documents, which
are marked as Ex.P.1 to P.57.
20. On behalf of the first respondent, a doctor has been
examined as RW 1 and an official from the office of the first
respondent has been examined as RW 2 and through their
evidence, 5 documents are marked as Ex.R.1 to R.5.
21. Heard the arguments of the petitioners' Counsel as well as
Counsel for the respondent No.1.
22. Having perused the pleadings of the parties, evidence ler in
by both sides, material available on record, and upon going
through the oral arguments of the petitioners' counsel and the
arguments of the counsel for respondent No.1, my common
findings on the above issues are as under:-
1) In the affirmative,
2) In the negative,
3) Partly in the affirmative,
4) As per final order, for the following:-
REASONS
23. Issue No.1 and 2 in all the cases:- Since all these claim
petitions are arising out of the same accident and issue No.1 and
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SCCH-1 11 MVC: 4281/14 to 4285/14
2 in all the petitions are regarding the negligence, they are taken
up together for discussion.
24. Since both these petitions are filed under Section 166 of the
Motor Vehicles Act, 1988, it is incumbent upon the petitioners to
prove the negligence on the part of the driver of the Santro car
bearing No.KA.02/MD.6716 in occurrence of the accident.
25. All the petitioners have stated in their petition that the on
30.08.2014, at about 07.00 pm., the petitioner in MVC
No.4285/2014 as driver and petitioners in other cases, as
inmates, were traveling in an Autorickshaw bearing registration
No.KA.52/5781 from Nelamangala towarda Mallarabanavadi and
when the autorickshaw was going near SBT Petrol Bunk on NH 48
Road, at that time, a Santro car bearing No.KA.02/MD.6716 came
from Nelamangala side in rash and negligent manner and in high
speed and dashed against the autorickshaw and caused the
accident. Thus, it is their case that the accident has occurred on
account of the rash and negligent driving of the Santro Car by its
driver.
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SCCH-1 12 MVC: 4281/14 to 4285/14
26. The respondent No.2, the owner of the Santro Car did not
appear before the Court and hence, he has been placed exparte,
whereas, the respondent No.1, the insurer of the Car entered
appearance and filed statement of objections denying the
negligence attribute to the car driver and on the contrary, it is
contended that the accident occurred due to the rash and
negligent driving of the autorickshaw, of which these petitioners
were inmates, by its driver.
27. In order to prove their case, the petitioner in MVC
No.4281/2014 has been examined as PW 1, she also deposed on
behalf of minor petitioners in MVC No.4282/2014 and
4283/2014, the petitioner in MVC No.4284/2015 has been
examined as PW 2 and the petitioner in MVC No.4285/2014, the
driver of the autorickshaw, has been examined as PW 4. They
have filed their respective affidavit in the form of examination in
chief. PW 1 through her evidence, got marked the FIR, Mahazar,
Seizure Mahazar, IMV Report and the Charge Sheet as Ex.P.1 to 4
and 6.
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SCCH-1 13 MVC: 4281/14 to 4285/14
28. PW 1, 2 and 3 have been cross-examined by the counsel for
the respondent No.1.
29. In the cross-examination of PW 1, she admits that the
accident has taken place on Nelamangala- Kunigal High way road
and that she was proceeding in the auto rickshaw and in the
autorickshaw, herself, her mother-in-law and two minor children
were seated. It is suggested to her that there were 6 to 7
passengers in the Auto Rickshaw and that her husband was
sitting by the side of driver of the auto and the said suggestion
have been denied by her. She says that she saw the accident and
that they were returning in the Auto Rickshaw after visiting the
hospital and she further says that she is not aware of the contents
of the complaint since the complaint was lodged by her brother-in-
law. She says that she knew the contents of the FIR, chargesheet
and other police documents and that there is a mention in the
complaint that they were returning after showing her daughter in
the hospital.
30. She admits that Ramesh is her brother-in-law who was
driving the Auto Rickshaw and that they were returning from
Nelamangala to their village Mallara Banawadi in an Auto
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SCCH-1 14 MVC: 4281/14 to 4285/14
Rickshaw. It is elicited from her that the accident has taken
place at 7 p.m. She admits that moderate vehicles will be there in
the high way and further admits that both the vehicles are moving
in the same direction and she did not see the Santro car. It is
suggested to her that, there is a cross road near the place of the
accident and the said suggestion has been denied by her. She
says that the accident has taken place far away from the petrol
bunk. The witness volunteers that the vehicle was seized and her
husband got released the vehicle and the occupants of the car
were there at the spot after the accident and she further
volunteers that they have taken them to hospital. She admits that
there is an averment in the complaint that they did not stop the
car after the accident. She says that her husband got released the
vehicle after 2 to 3 days. She further admits that the front portion
of their Auto Rickshaw was damaged. It is elicited from her that
the car came from rear side and while crossing, dashed against
our Auto Rickshaw. She says that she did not see the damages
caused to the car. It is suggested to her that Ramesh drove the
Auto Rickshaw in a rash and negligent manner and he himself hit
the rear portion of the car and that the accident has not occurred
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SCCH-1 15 MVC: 4281/14 to 4285/14
due to negligence on the part of the driver of the car and those
suggestions have been denied by her.
31. PW 2 has been cross-examined by the counsel for the
respondent No.1 and in her cross-examination, it is elicited from
her that the car came from right side and dashed the front portion
of the Auto Rickshaw. It is suggested to her that, her son Ramesh
was not having the Driving License and he drove the Auto
Rickshaw in a high speed and there was darkness and hence he
went and dashed the rear portion of the Santro car and further
that the Santro car driver was proceeding slowly on the left side of
the road and accident was not taken place on account of
negligence on the driver of the car and those suggestions have
been denied by her.
32. PW 3 has been cross-examined by the counsel for the
respondent No.1, wherein it is elicited from him that in the Auto
Rickshaw, himself, his mother, sister-in-law and brother's two
minor children were there and the Auto belongs to his brother
Prakash. He says that the autorickshaw was covered with
insurance and he can produce the same before the court. It is
elicited from him that the accident has occurred on the High Way.
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SCCH-1 16 MVC: 4281/14 to 4285/14
It is suggested to him that, the accident has occurred at the
middle of the road and the said suggestion has been denied by
him. He says that the accident has occurred on the left side of the
road. He admits that the front portion of the Auto Rickshaw was
damaged, the front glass was also damaged. He says that his
brother was there at the time of the inspection of the auto. He
admits that in terms of Ex.P.4 wind screen, front wheel, mud
guard, head light and tarpal was damaged and further admits that
the dickey door and bumper of the car was damaged and that the
accident was occurred at around 6.30 to 7.00 and there was a
darkness. He says that the police have recorded his statement on
the same day and he can produce the statement before the court
and further says that he does not know filing of chargesheet and
further does not know about the contents of the chargesheet. He
admits that there was a street light near the place of the accident.
It is suggested to him that he was not having the Driving License
and he was not aware of driving of Auto Rickshaw and that he has
driven the Auto Rickshaw in a high speed and tried to overtake
the car and in that process he hit the rear portion of the car and
those suggestions have been denied by him. He volunteers that
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SCCH-1 17 MVC: 4281/14 to 4285/14
the driver of the car tried to overtake their auto and dashed the
Auto Rickshaw. He says that he did not notice how the car came
but says that it came on the right side of their vehicle and he was
proceeding near the white mark. It suggested to him that the
accident has occurred due to his negligence and not on the
negligence on the part of the driver of the car and the said
suggestion has been denied by him.
33. As against the same, the respondent No.1 though denied
the negligence on the part of the driver of the Santro Car
No.KA.02/MD.6716, has not examined the driver of the car, nor
put forth any other documents in support of his case.
34. Now, let me appreciate both oral and documentary evidence
available before the Court.
35. The petitioners have produced FIR, Mahazar, IMV Report
and Charge Sheet as Ex.P.1, 2 4 and 6. On perusal of FIR, it is
seen that a case has been registered by the jurisdictional police
against the driver of the Santro Car No.KA.02/MD.6716 upon the
complaint lodged by one Shivashankara. Based on the complaint
lodged by the said Shivashankara, the Police investigated into the
matter and filed charge sheet against the driver of the Santro Car
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SCCH-1 18 MVC: 4281/14 to 4285/14
No.KA.02/MD.6716 for offence under Section 279 and 337 of IPC
read with Section 187 of MV Act.
36. As stated above, though the respondent No.1 contends that
the accident has not occurred due to any negligence on the part of
the driver of the Santro Car, the same has not been established by
the respondent No.1 by placing on record any cogent and
acceptable evidence and even the driver of the car has not been
examined by the respondent No.1. There is nothing in the cross-
examination of the petitioners to disbelieve the case made out by
them. As against the same, the respondent No.1, though
examined an officer from its office as RW 2, he has not whispered
anything about the negligence either on the part of the driver of
the Santro Car or that of the driver of the autorickshaw. Further,
though it is contended that the owner of the autorickshaw has
willfully permitted/allowed more persons to travel in the same as
against the seating capacity and the said autorickshaw was plying
beyond the permitted area at the time of accident and inspite of
that, the petitioners, after colluding with the jurisdictional police,
got filed a false charge sheet against the driver of the Car
No.KA.02/MD.6716, but to substantiate the same, no cogent
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SCCH-1 19 MVC: 4281/14 to 4285/14
evidence is adduced. As stated above, the driver of the Santro Car
has not been examined to controvert the evidence placed on
record by the petitioners in support of their case. From the
records placed on record, more particularly the charge sheet and
the IMV Report, which are marked as Ex.P.6 and P.4 respectively,
it appears that while the Santro Car driver tried to overtake
autorickshaw in an hurried manner, hind portion of the car hit
against the front portion of the autorickshaw, which resulted in
the accident. Though the sketch has not been produced by either
of the parties, but as stated above, the evidence placed on record
coupled with the police papers, make it abundantly clear that it is
the driver of the Santro Car, who after overtaking autorickshaw,
hit against the front portion of the autorickshaw. Thus, the facts
of the case clearly and categorically reveal that the accident
occurred on account of the rash and negligent driving of the
Santro Car No.KA.02/MD.6716 by its driver. Accordingly, issue
No.1 is answered in the affirmative and issue No.2 is answered in
the negative, in all the cases.
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SCCH-1 20 MVC: 4281/14 to 4285/14
37. Issue No.3 in MVC No.4281/2014:- Petitioner in MVC
No.4281/2014 has been examined as PW 1. Her evidence would
go to show that she sustained injuries in the accident and
immediately after the accident, she was shifted to Mathrushree
Hospital, Nelamangala, wherein she was treated as inpatient.
Ex.P.5 is the Wound Certificate issued by the Hospital which
shows that the petitioner has suffered "Tenderness injury right
dorsom of head with multiple contused lacerated wounds with
ragged edges and the same is stated to be grievous in nature.
Apart from the Wound Certificate, the petitioner has also
produced Ex.P.7 - Discharge Summary issued by the said
Hospital. A close perusal of the discharge summary shows that
the petitioner was diagnosed to have suffered Extensor tenderness
of right finger cut with contused lacerated wound with ragged
edges with soft tissue injury and for that, she was treated by
debridement and discharged. The petitioner was admitted on
30.08.2014 and discharged on 31.08.014. Even, the respondent
has also examined a doctor by name Dr.Mruthyunjaya T.D.,
Consultant Orthopedic Srugeon, Mathrushree Hosital,
Nelamangal as RW 1 and in his evidence, RW 1 reiterates
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SCCH-1 21 MVC: 4281/14 to 4285/14
regarding the nature of injury and the treatment given to the
petitioner.
38. As against the evidence placed on record regarding the
injuries suffered by the petitioner and the treatment given to her
in the form of oral as well documentary evidence, the respondent
No.1 has not put forward any contra evidence in the form of either
oral or documentary.
39. So far as medical expenses are concerned, as per Ex.P.10
Series, the petitioner has produced 14 medical bills amounting to
Rs.13,816/-. I have gone through the bills produced by the
petitioner. Main bill is for Rs.10,000/- which is issued by
Mathrushree Hospital, wherein the petitioner was treated as
inpatient. Remaining bills are towards purchase of consumables.
Since these bills are supported by prescriptions, the contents of
the same cannot be doubted.
40. Immediately after the accident, the petitioner was shifted
to Mathrushree Hospital, wherein she was treated as inpatient
from 30.08.2014 to 31.08.2014 for 2 days. Having regard to the
fact that the petitioner has suffered grievous injury, it was
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SCCH-1 22 MVC: 4281/14 to 4285/14
inevitable for her to engage private vehicle for her conveyance and
an attendant to attend to her needs.
41. It is the case of petitioner that she was aged 28 years and
doing tailoring work and earning Rs.7,000/- per month and since
she suffered grievous injury, she not only suffered loss of income
during treatment but also suffered permanent disability.
Petitioner went on record to depose that during the period of
treatment, she has suffered loss of income. So far as age is
concerned, the petitioner has produced Notarised copy of Aadhaar
Card, marked as Ex.P.9, which reveals that the petitioner was
born in the year 1986 and the accident having occurred on
30.08.2014, she was running 28 years as contended by her. So far
as avocation and income is concerned, though the petitioner says
that she is a tailor and earning Rs.7,000/- per month, but nothing
on record to show the same.
42. As discussed above and as per the medical records, it is
clear that the petitioner has suffered a grievous injury, which in
my opinion, rendered the petitioner incapable to do her work, at
least for a month, which has to be compensated under the head
loss of income during the period of treatment.
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SCCH-1 23 MVC: 4281/14 to 4285/14
43. The evidence of the petitioner would go to show that she
suffered grievous injury and based on the injury, the petitioner
contends that she has suffered disability, which rendered her
incapable to earn her livelihood in future. As far as injuries
suffered by petitioner are concerned, the contents of Wound
Certificate Ex.P.5 and Discharge Summary Ex.P.7 reiterate the
same. But that is not sufficient to come to the conclusion that the
petitioner has suffered disability on account of injuries suffered by
her in the accident. In that regard, the petitioner has examined
PW 4 Dr.C.V.Kumar, Consultant Orthopedic Surgeon at Sharada
Clinic, Nelamangala and in his evidence, he says that the
petitioner has taken follow up treatment in his clinic and based on
the same, he says that the petitioner having suffered ED tendon
injury and CLW right hand, has suffered 8% disability to whole
body. This part of the evidence of PW 4 cannot be accepted for the
reason that a person having suffered injury such as ED tendon
injury and CLW right hand, cannot be said to have suffered 8%
disability to whole body. In my view, the said injury may have
resulted in some loss of amenities in life, which has to be
compensated.
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SCCH-1 24 MVC: 4281/14 to 4285/14
44. Thus, the petitioner has been awarded compensation of
Rs.45,000/-, in all, towards pain and suffering, medical expenses,
loss of income during treatment, conveyance, attendant and other
miscellaneous expenses and loss of amenities in life. Accordingly
issue No.3 in MVC No.4281/2014 is answered.
45. Issue No.3 in MVC No.4282/2014:- The Petitioner in MVC
No.4282/2014, is a minor girl of 9 years and hence, her mother
has been examined as PW 1. Her evidence would go to show that,
in the accident, her daughter has sustained injuries in the
accident and immediately after the accident, she was shifted to
Mathrushree Hospital, Nelamangala, wherein she was treated as
inpatient. Ex.P.12 is the Wound Certificate issued by the Hospital
which shows that the petitioner has suffered "Type III C fracture
dislocation at root of left thumb with DIP with nail bed injury" and
the same is stated to be grievous in nature. Apart from the Wound
Certificate, the petitioner has also produced Ex.P.13 - Discharge
Summary issued by the said Hospital. A close perusal of the
discharge summary shows that the petitioner was diagnosed to
have suffered "Type III C fracture dislocation at root of left thumb
with DIP with nail bed injury" and for that, she was treated by
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SCCH-1 25 MVC: 4281/14 to 4285/14
debridement and suturing of wound and discharged. The
petitioner was admitted on 30.08.2014 and discharged on
01.09.014. Even, the respondent has also examined a doctor by
name Dr.Mruthyunjaya T.D., Consultant Orthopedic Srugeon,
Mathrushree Hosital, Nelamangal as RW 1 and in his evidence,
RW 1 states that patient by name Tejaswini came to their hospital
for compound fracture of left thumb and she was subjected to
reduction and suturing and she was discharged on 01.09.2014. .
46. As against the evidence placed on record regarding the
injuries suffered by the petitioner and the treatment given to her
in the form of oral as well documentary evidence, the respondent
No.1 has not put forward any contra evidence in the form of either
oral or documentary.
47. So far as medical expenses are concerned, as per Ex.P.16
Series, the petitioner has produced 31 medical bills amounting to
Rs.34,771/-. I have gone through the bills produced by the
petitioner. Main bill is for Rs.24,000/- which is issued by
Mathrushree Hospital, wherein the petitioner was treated as
inpatient. Remaining bills are towards purchase of consumables.
25
SCCH-1 26 MVC: 4281/14 to 4285/14
Since these bills are supported by prescriptions, the contents of
the same cannot be doubted.
48. Immediately after the accident, the petitioner was shifted
to Mathrushree Hospital, wherein she was treated as inpatient
from 30.08.2014 to 01.09.2014 for 3 days and this evident from
the medical records. Having regard to the fact that the petitioner
has suffered grievous injury, it was inevitable for her to engage
private vehicle for her conveyance and an attendant to attend to
her needs.
49. It is the case of petitioner that she was aged 09 years and
therefore, question of considering loss of income during the period
of treatment, does not arise. At the most, the petitioner since was
aged 9 years, was studying and therefore may have not attended
to school for some period, which has to be compensated.
50. As discussed above and as per the medical records, it is
clear that the petitioner has suffered Type III C compound fracture
dislocation at root of left thumb with DIP with nail bed injury
which is a grievous injury, which in my opinion, rendered the
petitioner to do her work, at least for some period, which has to be
compensated.
26
SCCH-1 27 MVC: 4281/14 to 4285/14
51. The evidence of the petitioner would go to show that she
suffered grievous injury and based on the injury, the petitioner
contends that she has suffered disability, which rendered her
incapable to earn her livelihood in future. As far as injuries
suffered by petitioner are concerned, the contents of Wound
Certificate Ex.P.12 and Discharge Summary Ex.P.13 and even the
evidence of RW 1 also reiterates the same. But that is not
sufficient to come to the conclusion that the petitioner has
suffered disability on account of injuries suffered by her in the
accident. In that regard, the petitioner has examined PW 4
Dr.C.V.Kumar, Consultant Orthopedic Surgeon at Sharada Clinic,
Nelamangala and in his evidence, he says that the petitioner has
taken follow up treatment in his clinic and based on the same, he
says that the petitioner having suffered Type III C fracture
dislocation at root of left thumb with DIP with nail bed injury, has
suffered 10% disability to whole body. This part of the evidence of
PW 4 cannot be accepted for the reason that a person having
suffered injury such as ED Type III C fracture dislocation at root
of left thumb with DIP with nail bed injury, cannot be said to have
suffered 10% disability to whole body. In my view, the said injury
27
SCCH-1 28 MVC: 4281/14 to 4285/14
may have resulted in some loss of amenities in life, which has to
be compensated.
52. Thus, the petitioner has been awarded compensation of
Rs.1,00,000/-, in all, towards pain and suffering, medical
expenses, conveyance, attendant and other miscellaneous
expenses, sand loss of amenities in life. Accordingly issue No.3 in
MVC No.4282/2014 is answered.
53. Issue No.3 in MVC No.4283/2014:- The Petitioner in MVC
No.4283/2014, is a minor boy of 4 years and hence, his mother
has been examined as PW 1. Her evidence would go to show that,
in the accident, her son sustained injuries in the accident and
immediately after the accident, he was shifted to Mathrushree
Hospital, Nelamangala, wherein he was treated as inpatient.
Ex.P.18 is the Wound Certificate issued by the Hospital which
shows that the petitioner has suffered " Abraion on left forehead
and left hand" and the same is stated to be simple in nature.
Apart from the Wound Certificate, the petitioner has also
produced Ex.P.19 - Discharge Summary issued by the said
Hospital. A close perusal of the discharge summary shows that
28
SCCH-1 29 MVC: 4281/14 to 4285/14
the petitioner was diagnosed to have suffered "Mild Head Injury"
and for that, he was treated and discharged. The petitioner was
admitted on 30.08.2014 and discharged on 31.08.014. Even, the
respondent has also examined a doctor by name Dr.Mruthyunjaya
T.D., Consultant Orthopedic Srugeon, Mathrushree Hosital,
Nelamangala as RW 1 and in his evidence, RW 1 states that
patient by name Darshan had suffered mild head injury and he
was treated conservatively and was discharged on 31.08.2014.
54. As against the evidence placed on record regarding the
injuries suffered by the petitioner and the treatment given to him
in the form of oral as well documentary evidence, the respondent
No.1 has not put forward any contra evidence in the form of either
oral or documentary.
55. So far as medical expenses are concerned, as per Ex.P.21
Series, the petitioner has produced 7 medical bills amounting to
Rs.8,186/-. I have gone through the bills produced by the
petitioner. Main bill is for Rs.3,600/- which is issued by
Mathrushree Hospital, wherein the petitioner was treated as
inpatient. Remaining bills are towards purchase of consumables.
29
SCCH-1 30 MVC: 4281/14 to 4285/14
Since these bills are supported by prescriptions, the contents of
the same cannot be doubted.
56. Immediately after the accident, the petitioner was shifted
to Mathrushree Hospital, wherein he was treated as inpatient from
30.08.2014 to 31.08.2014 for 2 days and the same is clear from
the medical records. Having regard to the fact that the petitioner
has suffered injury in the accident and inpatient in the hospital, it
was inevitable for him to engage private vehicle for his conveyance
and an attendant to attend to his needs.
57. It is the case of petitioner that she was aged 04 years and
therefore, question of considering loss of income during the period
of treatment, does not arise. At the most, the petitioner since was
aged 9 years, was studying, may have not attended to school for
some period, which has to be compensated.
58. As discussed above and as per the medical records, it is
clear that the petitioner has suffered Head Injury, which in my
opinion, rendered the petitioner incapable to attend to school for
some period, which has to be compensated.
30
SCCH-1 31 MVC: 4281/14 to 4285/14
59. Since the petitioner has suffered head injury, which is
simple in nature, question of considering disability or loss of
amenities in life does not arise.
60. Thus, the petitioner has been awarded compensation of
Rs.30,000/-, in all, towards pain and suffering, medical expenses,
conveyance, attendant and other miscellaneous expenses and.
Accordingly issue No.3 in MVC No.4283/2014 is answered.
61. Issue No.3 in MVC No.4284/2014:- The Petitioner in MVC
No.4284/2014 has been examined as PW 2. Her evidence would
go to show that, in the accident, she sustained injuries and
immediately after the accident, she was shifted to Mathrushree
Hospital, Nelamangala, wherein she was treated as inpatient.
Ex.P.24 is the Wound Certificate issued by the Hospital which
shows that the petitioner has suffered "Blunt injury to chest and
abdomen" and the same is stated to be simple in nature. Apart
from the Wound Certificate, the petitioner has also produced
Ex.P.25 - Discharge Summary issued by the said Hospital. A close
perusal of the discharge summary shows that the petitioner was
diagnosed to have suffered "Blunt injury to chest and abdomen"
and for that, she was treated and discharged. The petitioner was
31
SCCH-1 32 MVC: 4281/14 to 4285/14
admitted on 30.08.2014 and discharged on 31.08.014. Even, the
respondent has also examined a doctor by name Dr.Mruthyunjaya
T.D., Consultant Orthopedic Srugeon, Mathrushree Hosital,
Nelamangala as RW 1 and in his evidence, RW 1 states that
patient by name Rathnamma had suffered blunt injury to chest
and abdomen and she was treated conservatively and was
discharged on 31.08.2014.
62. As against the evidence placed on record regarding the
injuries suffered by the petitioner and the treatment given to her
in the form of oral as well documentary evidence, the respondent
No.1 has not put forward any contra evidence in the form of either
oral or documentary.
63. So far as medical expenses are concerned, as per Ex.P.27
Series, the petitioner has produced 17 medical bills amounting to
Rs.7,566/-. I have gone through the bills produced by the
petitioner. Main bill is for Rs.3,400/- which is issued by
Mathrushree Hospital, wherein the petitioner was treated as
inpatient. Remaining bills are towards purchase of consumables.
Since these bills are supported by prescriptions, the contents of
the same cannot be doubted.
32
SCCH-1 33 MVC: 4281/14 to 4285/14
64. Immediately after the accident, the petitioner was shifted
to Mathrushree Hospital, wherein she was treated as inpatient
from 30.08.2014 to 31.08.2014 for 2 days. Having regard to the
fact that the petitioner has suffered injury to chest and abdomen
in the accident and inpatient in the hospital, it was inevitable for
her to engage private vehicle for her conveyance and an attendant
to attend to her needs.
65. Since the petitioner has suffered simple injuries, question
of considering loss of income during the period of treatment, does
not arise.
66. As discussed above and as per the medical records, it is
clear that the petitioner has suffered blunt injury to chest and
abdomen, which in my opinion, rendered the petitioner incapable
to do her work, at least for some period, which has to be
compensated.
67. Since the petitioner has suffered an injury which is simple
in nature, question of considering disability or loss of amenities in
life does not arise.
68. Thus, the petitioner has been awarded compensation of
Rs.30,000/-, in all, towards pain and suffering, medical expenses,
33
SCCH-1 34 MVC: 4281/14 to 4285/14
conveyance, attendant and other miscellaneous expenses and loss
of income during treatment. Accordingly issue No.3 in MVC
No.4284/2014 is answered.
69. Issue No.3 in MVC No.4285/2014:- The Petitioner in MVC
No.4285/2014 has been examined as PW 3. The evidence of PW 3
would go to show that, in the accident, he sustained injuries and
immediately after the accident, he was shifted to Mathrushree
Hospital, Nelamangala, wherein he was treated as inpatient.
Ex.P.29 is the Wound Certificate issued by the Hospital which
shows that the petitioner has suffered "Contused lacerated wound
over left knee lower aspect exposing patella, tendon with swelling"
and the same is stated to be simple in nature. Apart from the
Wound Certificate, the petitioner has also produced Ex.P.30 -
Discharge Summary issued by the said Hospital. A close perusal
of the discharge summary shows that the petitioner was
diagnosed to have suffered "CLW over left knee lower aspect
exposing patella with surrounding abrasion" and for that, he was
treated and discharged. The petitioner was admitted on
30.08.2014 and discharged on 31.08.014. Even, the respondent
has also examined a doctor by name Dr.Mruthyunjaya T.D.,
34
SCCH-1 35 MVC: 4281/14 to 4285/14
Consultant Orthopedic Srugeon, Mathrushree Hosital,
Nelamangala as RW 1 and in his evidence, RW 1 states that
patient by name Ramesh had suffered lacerated wound over left
knee for which suturing was done and discharged on 31.08.2014.
70. As against the evidence placed on record regarding the
injuries suffered by the petitioner and the treatment given to him
in the form of oral as well documentary evidence, the respondent
No.1 has not put forward any contra evidence in the form of either
oral or documentary.
71. So far as medical expenses are concerned, as per Ex.P.32
Series, the petitioner has produced 23 medical bills amounting to
Rs.18,181/-. I have gone through the bills produced by the
petitioner. Main bill is for Rs.8,000/- which is issued by
Mathrushree Hospital, wherein the petitioner was treated as
inpatient. Remaining bills are towards purchase of consumables.
Since these bills are supported by prescriptions, the contents of
the same cannot be doubted.
72. Immediately after the accident, the petitioner was shifted
to Mathrushree Hospital, wherein she was treated as inpatient
from 30.08.2014 to 31.08.2014 for 2 days. Having regard to the
35
SCCH-1 36 MVC: 4281/14 to 4285/14
fact that the petitioner has suffered injury to contused lacerated
wound over left knee lower aspect exposing patella in the accident
and inpatient in the hospital, it was inevitable for him to engage
private vehicle for his conveyance and an attendant to attend to
his needs.
73. As discussed above and as per the medical records, it is
clear that the petitioner has suffered contused lacerated wound
over left knee lower aspect exposing patella, which in my opinion,
rendered the petitioner incapable to do his work, at least for some
period, which has to be compensated.
74. Since the petitioner has suffered an injury which is simple
in nature, question of considering disability or loss of amenities in
life does not arise.
75. Thus, the petitioner has been awarded compensation of
Rs.40,000/-, in all, towards pain and suffering, medical expenses,
conveyance, attendant and other miscellaneous expenses and loss
of income during treatment. Accordingly issue No.3 in MVC
No.4285/2014 is answered.
76. The petitioners, by examining PW 4 Dr.C.V.Kumar,
Consultant Orthopedic Surgeon at Sharada Clinic, Nelamangala
36
SCCH-1 37 MVC: 4281/14 to 4285/14
sought to claim compensation under the head of loss of income on
account of disability. PW 4 in his evidence, has stated that the
petitioner in MVC No.4281/2014 having suffered ED tendon
injury and CLW right hand, has suffered 23% disability to right
hand and 8% to whole body and likewise, he has deposed that the
petitioner in MVC No.4292/2014 having suffered compound
fracture dislocation left thumb, has suffered 30% disability to left
hand and 10% disability to whole body and the petitioner in MVC
No.4285/2014 having suffered fracture left upper fibula CLW over
left knee, has suffered 23% disability to left leg and 8% to whole
body, but in his cross-examination, he says that he has treated
the petitioners during follow up treatment only. Further, the
respondent No.1 has filed a copy of the complaint filed against the
said doctor, alleging to have committed some misdeeds while
working in Mathrushree Hospital and even the respondent No.1
has also filed copies of evidence and petitions. This Court, having
regard to its limited scope, cannot go into such aspects. At the
same time, it has to be stated here that the disability assessed by
PW 4, considering the nature and gravity of injuries suffered by
the petitioners in these cases, in all probability, appears to be,
37
SCCH-1 38 MVC: 4281/14 to 4285/14
exaggerated. Therefore, the evidence of PW 4 in this regard is
discarded.
77. Now coming to the point of liability, the as discussed above,
while answering issue No.1 in all the cases, it is held that the
accident occurred due to the rash and negligent driving of the car
No.KA.02/MHD.6716 by its driver and therefore, the contention of
the respondent No.1 that the owner and insurer of the
autorickshaw No.KA.52/5781 are necessary parties, holds no
water and hence, the respondent No.1 being the insurer and the
respondent No.2 being the owner of the car are jointly and
severally liable to pay compensation to the petitioners.
78. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100)
(Municipal Council of Delhi Vs. Association of Victims of Uphaar
Tragedy), the Supreme Court has held that the Court has to take
into account the rate of interest of the nationalized bank and the
present day cost of living and thereby awarded, interest on the
compensation amount at 9% p.a. I have no reasons to deviate
from the said view of the Apex Court. Accordingly, interest on
compensation amount is awarded at 9% p.a.
38
SCCH-1 39 MVC: 4281/14 to 4285/14
79. Accordingly issue No.3 in all the cases are answered and
in the result, I pass the following:
ORDER
MVC 4281/2014 The petition is partly allowed.
The petitioner has been awarded compensation of Rs.45,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. However, the respondent No.1, the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with accrued interest is ordered to be released to the petitioner, upon deposit.
MVC 4282/2014 The petition is partly allowed.
The petitioner has been awarded compensation of Rs.1,00,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. However, the respondent No.1, the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
39 SCCH-1 40 MVC: 4281/14 to 4285/14Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in the name of the minor petitioner in any nationalized or scheduled bank of the choice of the minor guardian of the petitioner, till the minor petitioner attains majority. Remaining amount with proportionate interest is ordered to be released to minor guardian of the petitioner. Interest on FD is payable on maturity.
MVC 4283/2014 The petition is partly allowed.
The petitioner has been awarded compensation of Rs.30,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. However, the respondent No.1, the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with accrued interest is ordered to be released to the minor guardian of the petitioner, upon deposit.
MVC 4284/2014 The petition is partly allowed.
The petitioner has been awarded compensation of Rs.30,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. However, the respondent No.1, 40 SCCH-1 41 MVC: 4281/14 to 4285/14 the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with accrued interest is ordered to be released to the petitioner, upon deposit.
MVC 4285/2014 The petition is partly allowed.
The petitioner has been awarded compensation of Rs.40,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. However, the respondent No.1, the insurer shall indemnify the respondent No.2 and deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with accrued interest is ordered to be released to the petitioner, upon deposit.
Advocate's fee is fixed at Rs.1,000/- in each case. Original of the judgment shall be kept in MVC No.4281/2014 and a copy of the same be retained in other case.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced by me in Open Court on 17.03.2016) (H.P.SANDESH) MEMBER, PRL.MACT 41 SCCH-1 42 MVC: 4281/14 to 4285/14 ANNEXURE Witnesses examined on behalf of the petitioner:
P.W.1: Rajamma P.W.2: Rathnamma P.W.3: Ramesh P.W.4: Dr.C.V.Kumar P.W.5: Ashwini B.R. Witnesses examined on behalf of the respondents:
R.W.1 : Dr.Mruthyunjaya T.D., R.W.2: Manoj V.G., Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Mahazar Ex.P-3 : Seizure mahazar Ex.P-4 : IMV report Ex.P-5 : Wound certificate Ex.P-6 : Chargesheet Ex.P-7 : discharge summary Ex.P-8 : Notarised copy of ration card (original compared) Ex.P-9 : Notarised copy of Aadhaar card (original compared)
Ex.P-10 : Medical bills (14 in nos.) for Rs. 13,816/-
Ex.P.11 4 Prescriptions Ex.P.12 Wound certificate inrespect of MVC.4282/2014 Ex.P.13 discharge summary Ex.p.14 Study certificate Ex.P.15 3 Photos with CD Ex.P.16 Medical bills ( 31 in nos.) for Rs. 34,771/- Ex.P.17 10 Prescriptions Ex.P.18 Wound certificate in MVC.4283/2014 Ex.P.19 discharge summary Ex.P.20 Study certificate Ex.P.21 Medical bills (7 in nos.) for Rs. 8,186/- Ex.P.22 Prescription Ex.P.23 Scanning report with films Ex.P-24 : Wound certificate 42 SCCH-1 43 MVC: 4281/14 to 4285/14 Ex.P-25 : discharge summary Ex.P-26 : Notarised copy of Aadhaar card (original compared) Ex.P-27 : Medical bills ( 17 in nos.) for Rs. 7,560/- Ex.P-28 : 3 Prescriptions Ex.P-29 : Wound certificate Ex.P-30 : Discharge summary Ex.P-31 : Notarised copy of Aadhaar card (original compared) Ex.P-32: Medical bills ( 23 in nos.) for Rs. 18,181/- Ex.P-33 : 6 Prescriptions Ex.P-34 : Scanning report Ex.P-35 : X-ray Ex.P-36 : Recent examination report Ex.P-37 : X-ray Ex.P-38 : Recent examination report Ex.P-39 : X-ray Ex.P-40 : Recent examination report Ex.P-41 : X-ray Ex.P-42 : Authorisation Letter Ex.P-43 : Copy of MLC Register extract Ex.P-44 : Case sheet Ex.P-45 : MLC register extract Ex.P-46 : Case sheet Ex.P-47 : X-ray Ex.P-48 : CT SCAN report Ex.P-49 : MLC Register extract Ex.P.50 Case sheet Ex.P.51 CT Scan Ex.P.52 MLC Register extract Ex.P.53 Case sheet Ex.P.54 X-ray Ex.P.55 MLC Register extract Ex.P.56 Case sheet Ex.P.57 2 X-rays
Documents marked on behalf of the respondents:
Ex.R-1 : Certified copy of deposition of PW-1 in MVC.7577/2009 Ex.R-2 Certified copy of deposition of PW-2 in MVC.7577/2009 43 SCCH-1 44 MVC: 4281/14 to 4285/14 Ex.R.3 Certified copy of judgment and award in MVC.7577/2009 Ex.R.4 IMV report Ex.R.5 Policy copy (H.P.SANDESH) MEMBER, PRL.M.A.C.T 44