Bangalore District Court
As A Compensation At Column No.21 Is ... vs No.2 Has Not Adduced Any Evidence On Its ... on 18 April, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 18th day of April, 2017.
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.1875/2015
Toufeeq Ahmed, ..... PETITIONER
S/o. Altaf @ Altaf Ahmed,
Aged about 26 years,
Residing at E 488-1,
17th Cross,
Govindarajapura,
Bangalore North,
Bangalore-560 045.
(By Sri. M.V. Vishwanath, Adv.,)
V/s
1. Leelamma. R., ..... RESPONDENTS
No.1356, 2nd Cross,
Doddamma Layout,
Manorayapalya,
R.T. Nagar Post,
Bangalore-560 032.
(R.C. Owner of Auto Rickshaw bearing
Registration No.KA-02-6040)
2. United India Insurance Co. Ltd.,
No.1872, 1st Floor, 20th Main,
Marenahalli Main Road,
Vijayanagar,
Bangalore-560 080.
(Policy No.071681/31/14/02/00000966,
2 M.V.C.NO.1875/2015
(SCCH-7)
Valid from 17.04.2014 to 16.04.2015)
(R1 - Exparte)
(R2 - By Sri. Ravish Benni, 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 15,00,000/- together with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 05.03.2015 at about 10.15 a.m., he was a pedestrian on the extreme left side on Dinnur Main Road and after carefully observing the vehicle movements, he was crossing the said road near White House, R.T. Nagar, Bangalore, at that time, suddenly the driver of Auto Rickshaw bearing Registration No.KA- 02-6040 came from R.T. Nagar Police Station side in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed against him, due to which, he fell down and sustained grievous injuries all over the body.
b) Immediately after the accident, he was shifted to Ambedkar Hospital, wherein, after first-aid treatment, due to severe injuries sustained by him, for further management, referred to Zion Hospitals and Research Centre Pvt. Ltd., Kammanahalli, Bangalore, wherein, he took treatment as an inpatient from 05.03.2015 to 09.03.2015 and during the course of treatment, C.T. Scan was done, X-rays were taken, which revealed 3 M.V.C.NO.1875/2015 (SCCH-7) undisplaced fracture of right frontal bone extending to the roof of the orbit, fracture of the floor of the right orbit extending to the lateral wall of the maxillary sinus, mild mucosal thickening in left maxillar, abrasion over the forehead, nose, abrasion over the hand, right knee, left little finger and other grievous injuries all over the body and after necessary treatment, discharged with an advise for follow-up treatment, restricted fracture movements, not to involve in any strenuous activities and for complete bed rest and as per the advice of the Doctors, he is still continuing follow- up treatment and so far spent more than Rupees 3,00,000/- towards medical, conveyance, nourishment and other incidental charges, etc.,
c) The injuries sustained in the said accident have not recovered and getting unbearable pain often. On account of the said accidental injuries, he was completely bed ridden, getting headache and giddiness often, cannot chew hard food, cannot walk, stand, cannot lift or carry weight, due to severe facial injuries, there are scar marks present over the face, which is looking ugly and his face has become disfigured and undergoing deep mental shock, pain and sufferings, since the injuries caused are permanent in nature.
d) Prior to the date of accident, he was hale and healthy and was running business and earning a sum of Rupees 35,000/- to Rupees 40,000/- per month and with the said earnings, he was maintaining his family members, since he was the only earning member in the family. On account of the said accidental injuries, he till today cannot attend to his business, resulted in loss of earnings and earning capacity and put to great financial hardship.
4 M.V.C.NO.1875/2015(SCCH-7)
e) The accident in question purely due to the rash and negligent manner of driving of the said Auto Rickshaw bearing Registration No.KA-02-6040 by its driver and in this connection, the jurisdictional R.T. Nagar Traffic Police have registered a case in their Crime No.42/2015, punishable under Sections 279 and 338 of IPC as against the said driver for causing the accident.
f) The 1st Respondent being the R.C. Owner of the said Auto Rickshaw bearing Registration No.KA-02-6040, which caused the accident and the 2nd being the Insurer and the Policy was in force as on the date of accident. Hence, the Respondents are jointly and severally liable to pay the compensation to him under all the heads, including general and special damages. Hence, this petition.
3. Though the notice was duly served on the Respondent No.1 through paper publication, she was remained absent and hence, she is placed as exparte on 21.09.2015.
4. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, it was placed as exparte on 22.06.2015. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 21.09.2015 passed on I.A.No.II, the exparte order is set-aside and the Respondent No.2 is taken on file. The Respondent No.2 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 petition filed by the Petitioner is false, frivolous, baseless, as such, the same cannot be sustainable under the facts 5 M.V.C.NO.1875/2015 (SCCH-7) and circumstances and law. The Petitioner has not disclosed true facts of the case.
b) In the Judgment of Hon'ble Supreme Court in Civil Appeals No.1799-1800/2006 has held that, Insurer is not liable to pay interest on future loss of income, future loss of amenities and future medical expenses. In view of the said Judgment, it is not liable to pay interest on future loss of income, future loss of amenities and future medical expenses.
c) Immediately after the accident, the driver or owner has to intimate about the accident to the Insurance Company in writing as contemplated under Section 134(c) of the M.V. Act. Intimation particulars, policy number, period of its validity, date, time and place of the accident, name of the injured or death in the accident and name of the driver and driving licence particulars and the said particulars has to be intimated to the Insurance Company by the Police or Investigating Officer concerned or in- charge of the Police Station shall forward the copy of the same within the stipulated time on completion of the such a report to the concerned MACT and to the concerned Insurance Company. In this case, the driver, owner and Police not at all intimated to its Office about the accident. Therefore, on this ground this, the present claim petition is liable to be dismissed with heavy cost.
d) It admits issuance of policy in respect of vehicle Auto Rickshaw bearing Registration No.KA-02-6040 and Policy No.071681/31/14/02/00000966, covering the risk w.e.f 17.04.2014 to 16.04.2015. The liability of it, is subject to the terms and conditions appended the policy, provisions of M.V. Act and verification of valid vehicle documents and the insured not 6 M.V.C.NO.1875/2015 (SCCH-7) intimated to its Office about the case and hence, it is not liable to indemnify the insured and admits the name and address of the insured as mentioned in the cause title.
e) The amount of Rupees 15,00,000/- claimed by the Petitioner as a compensation at Column No.21 is highly exaggerated and fictitious, unwarranted, exorbitant, unreasonable, unjustifiable and it is not liable to pay the said amount to the Petitioner.
f) The injuries to said to have been sustained by the Petitioner are minor in nature and they may not cause any permanent disability to the Petitioner.
g) It reserves the right to file an additional written statement in case of changed circumstances and new information is received to it.
h) If Insured/Owner placed exparte or in case Insured/Owner filed vakalat and written statement and even after filing vakalat and written statement, if Owner/Insured not cross- examine the Petitioner effectively, then also, it craves leave of this Hon'ble Tribunal to file 170 Application under Section 170 of the M.V. Act and to take all the defenses available to the insured and contest the matter on merit.
i) In the event of any award being passed, the rate of interest awardable by this Hon'ble Tribunal cannot be more than 4% in view of the decision of the Hon'ble High Court of Karnataka. Hence, prayed to dismiss the claim petition with heavy costs.
7 M.V.C.NO.1875/2015(SCCH-7)
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 Auto Rickshaw bearing Registration No.KA-02-6040 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 one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.19. On the other hand, the Respondent No.2 has not adduced any evidence on its behalf.
8. Heard the arguments. The Learned Counsel appearing for Petitioner has filed the Written Arguments.
9. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. M.V. Vishwanath has placed reliance upon the decisions reported in, M.F.A.No.10592/2012 (MV) High Court of Karnataka at Bangalore (Ningaraju. P.B. V/s. Jeril. V. Johnson and Others), wherein, it is observed that, 8 M.V.C.NO.1875/2015 (SCCH-7) Occurrence of accident resulting in the injuries to the appellant is not in dispute.
Further, it is not in dispute that, the appellant was aged about 48 years as on the date of accident and hale and healthy prior to the accident. The Tribunal ought to have assessed reasonable income of the appellant having regard to age, avocation and year of accident. Therefore, we can safely Respondent-assess the income of Rupees 5,000/- per month to meet the ends of justice. It is not in dispute that, he was treated as inpatient in the Hospital for 5 days. He might have spent reasonable amount towards medical expenses, conveyance, nourishing food and attendant charges. We presume that, on the advise of Doctor he might have taken bed rest and follow up treatment at least for two months and suffered mental pain and agony during treatment period and has to endure the discomfort and unhappiness throughout his life. The P.W.2 Doctor after clinical examination has assessed 12% disability.
The disability may affect the appellant in doing agricultural operations and he cannot do the same as effectively as he was doing earlier to accident. Taking into consideration all these aspects, we deem it fit to award a sum of Rupees 60,000/- in addition to the compensation awarded by the Tribunal, with interest at 9% per annum from the date of petition till realization to meet the ends of justice.
10. 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
9 M.V.C.NO.1875/2015
(SCCH-7)
of Rupees 1,67,615/- with
interest at the rate of 9%
p.a. 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
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner, has
stated in his examination-in-chief that, on 05.03.2015 at about 10.15 a.m., he was a pedestrian on the extreme left side on Hennur Main Road and after carefully observing the vehicle movements, he was crossing the said road, near White House, R.T. Nagar, Bangalore and at that time, suddenly, the driver of Auto Rickshaw bearing Registration No.KA-02-6040 came from R.T. Nagar Police Station side in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed against him and due to which, he fell down and sustained grievous injuries all over the body. He has further stated that, immediately after the accident, he was shifted to Ambedkar Hospital, wherein, after first-aid treatment, due to severe injuries sustained by him, for further management, referred to Zion Hospitals and Research Centre Pvt. Ltd., Kammanahalli, Bangalore, wherein, he took treatment as an inpatient from 05.03.2015 to 09.03.2015 and during the course of treatment, C.T. Scan was done, X-rays were taken, which revealed undisplaced fracture of right frontal bone extending to the roof of the orbit, fracture of the floor of the right orbit extending to the lateral wall of the maxillary sinus, mild mucosal thickening in left maxillar, abrasion over the forehead, nose, abrasion over the 10 M.V.C.NO.1875/2015 (SCCH-7) hand, right knee, left little finger and other grievous injuries all over the body. He has further stated that, the accident in question purely due to the rash and negligent manner of driving of the said Auto Rickshaw bearing Registration No.KA-02-6040 by its driver and in this connection, the jurisdictional R.T. Nagar Traffic Police have registered a case in their Crime No.42/2015, punishable under Sections 279 and 338 of IPC as against the said driver for causing the accident.
12. No doubt, the Petitioner has not produced the MLC Register or Police Intimation. Even, the Petitioner has not examined the eye witness to prove the accident, which caused to him. Further the P.W.1 in his cross-examination has stated that, when he was crossing the road, there was no zebra or pedestrian cross. Further, there is discrepancy in the Police records produced by the Petitioner that, at the time of alleged road traffic accident, the Petitioner was crossing the road as per Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.9 Charge Sheet and as per Ex.P.4 Spot Panchanama and Ex.P.5 Statement of the Petitioner, the Petitioner was standing on the accidental road to cross the road.
13. But, the non-examination of the eye witness by the Petitioner to consider the accident in question, which caused to him, non-production of MLC Register and Police Intimation and discrepancy in the Police records in respect of whether at the time of accident, the Petitioner was standing on the accidental road to cross the road or he was crossing the road, it cannot be thrown away the above said oral evidence of P.W.1, which has been stated by him in his examination-in-chief and it cannot be said that, there was no negligence on the part of the driver of the offending Auto Rickshaw bearing Registration No.KA-02-6040 in the 11 M.V.C.NO.1875/2015 (SCCH-7) commission of the said road traffic accident, but, the entire negligence is on the part of the Petitioner in the commission of the said road traffic accident and the offending Auto Rickshaw bearing Registration No.KA-02-6040 as well as its driver not at all involved in the said road traffic accident, which caused to the Petitioner, as, to corroborate his case as well as oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanama, Ex.P.5 Statement relating to him, Ex.P.6 MVI Report, Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary, Ex.P.9 Charge Sheet and Ex.P.15 Discharge Summary, which clearly disclosed that, as per Ex.P.3 Spot Hand Sketch, the road traffic accident was occurred by the side of T. Junction Road and not on the middle of the Junction and at the time of accident, the Petitioner was by the side of the said T. Junction Road and without observing the Petitioner, the driver of the offending Auto Rickshaw came with very high speed in a rash and negligent manner and dashed to him and if the driver of the offending Auto Rickshaw could have taken a little care while driving it at the time of accident by observing the Petitioner in the accidental spot, he could have avoided the said road traffic accident, which caused to the Petitioner and in Ex.P.8 Discharge Summary, it is reflected about MLC, which has been done in Ambedkar Medical College, wherein, the Petitioner had taken initial treatment to the said accidental injuries and due to the said impact, the Petitioner had sustained two grievous injuries and initially, he took treatment to the said accidental injuries at Dr. B.R. Ambedkar Medical College Hospital and thereafter, he had taken treatment at Zion Hospital and Research Centre Pvt. Ltd., by admitting as an inpatient from 05.03.2015 to 09.03.2015, i.e., 5 days and thereafter, he had also taken treatment to the said accidental injuries at Divine Specialty Hospital by admitting as an 12 M.V.C.NO.1875/2015 (SCCH-7) inpatient from 01.02.2016 to 02.02.2016, i.e., 2 days, totally for 7 days, he took treatment to the said accidental injuries, which is clear from the following discussion. Further, the P.W.1 has clearly denied the suggestion put to him by the Respondent No.2 during the course of cross-examination that, about his own negligence itself, the said road traffic accident was taken place. Except the said suggestion, the Respondent No.2 has not put any other suggestions or questions to the P.W.1 to consider its specific defence. Further, to consider its specific defence, the Respondent No.2 has not adduced any evidence on its behalf. More so, though the notice was duly served on the Respondent No.1, who was a R.C. Owner of the offending Auto Rickshaw bearing Registration No.KA-02-6040 through paper publication, she was remained absent and hence, she is placed as exparte. The non-appearance of the Respondent No.1 in the present petition clearly implies that, she has indirectly admitted the entire case made out by the Petitioner in the present petition as against her.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the father of the Petitioner has lodged Ex.P.2 Complaint before the R.T. Nagar Traffic Police as against the driver of the offending Auto Rickshaw bearing Registration No.KA-02- 6040 by alleging that, on 05.03.2015 at 10.15 a.m., when his son, i.e., the Petitioner was walking to cross the road near White House, Dinnur Main Road, at that time, the offending Auto Rickshaw bearing Registration No.KA-02-6040 came from R.T. Nagar Police Station with very high speed, rash and negligent manner and dashed to the Petitioner, who was standing by the side of the accidental road and fell down and had sustained injuries on his both hands, right eye, nose and mouth and the driver of the offending Auto Rickshaw with the help of the public 13 M.V.C.NO.1875/2015 (SCCH-7) had shifted the Petitioner to Ambedkar Hospital for treatment, wherein, first-aid treatment was given and thereafter, the Petitioner was shifted to Zion Hospital for further treatment and as such, he prayed to take necessary legal action as against the driver of the Auto Rickshaw and based on Ex.P.2 Complaint, the said Police have filed a criminal case as against the driver of the offending auto Rickshaw for the offences punishable under Sections 279 and 337 of IPC under Crime No.42/2015. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging the complaint before the jurisdictional Police in respect of the accident in question, which caused to the Petitioner.
15. The contents of Ex.P.3 Spot Hand Sketch, Ex.P.4 Spot Panchanana, Ex.P.5 Statement of the Petitioner and Ex.P.6 MVI Report disclosed that, when the Petitioner was on the extreme left side of 'T' Junction Road, the offending Auto Rickshaw bearing Registration No.KA-02-6040 came with very high speed in a rash and negligent manner and dashed to the Petitioner without controlling it and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident, but, the entire negligence is on the part of the driver of the offending Auto Rickshaw as he could have avoided the said road traffic accident if he drove it carefully by observing the Petitioner on the accidental spot and the offending Auto Rickshaw bearing Registration No.KA-02-6040 as well as its driver are very much involved in the said road traffic accident and at the time of accident, the Petitioner was standing by the side of the accidental road to cross the road. The damages caused to the offending Auto Rickshaw are shown in Ex.P.6 MVI Report, which clearly disclosed about the terrific impact of the said road traffic accident. It is also 14 M.V.C.NO.1875/2015 (SCCH-7) clearly mentioned in Ex.P.6 MVI Report that, the said accident was not occurred due to any mechanical defects of the said Auto Rickshaw.
16. The contents of Ex.P.7 Wound Certificate disclosed that, with a history of road traffic accident said to have been caused to the Petitioner dashed against him an Auto bearing Registration No.KA-02-6040, when he came walking from a cross, an Auto came in the main road with speed and dashed against him on 05.03.2015 at 10.15 a.m., Dinnur Main Road, near White House and on examination, it is found that, he had sustained lacerated wound measuring about 2 cms X 1 cm on the cheek below the right eye with bleeding injury, a lacerated wound measuring about 3 X 11 cms on the base of the nose with bleeding present and ophthalmology and surgery unit seen case and disfigurement of face, i.e., two grievous injuries.
17. The contents of Ex.P.8 Discharge Summary disclosed that, with history of road traffic accident, the Petitioner was brought to Zion Hospital and Research Centre Pvt. Ltd., on 05.03.2015 at 3.17 p.m., itself and during the course of treatment, it is finally diagnosed black eye of right eye (+) abrasion over the forehead + sides of eyebrow, sutured wound upper lip + nose, small abrasion over the hand, minor bruise over the right knee, left little finger and MLC has been done in Ambedkar Medical College and by admitting as an inpatient from 05.03.2015 to 09.03.2015, i.e., for 5 days, he took treatment to the said accidental injuries at Zion Hospital and Research Center Pvt. Ltd.,
18. The contents of Ex.P.15 Discharge Summary disclosed that, with a history of road traffic accident with loss of 15 M.V.C.NO.1875/2015 (SCCH-7) consciousness in March 2015, the Petitioner had sustained undispalced fracture of the right frontal bone extending to the roof of the orbit with fracture of the floor of the right orbit extending to the later wall of the maxillary sinus with mild mucosal thickening in left maxillar, right sphenoid and bilateral ethmoid sinus and he was admitted initially at Ambedkar Hospital and later on, shifted to Zion Hospital and MLC was done at Ambedkar Hospital. The Petitioner was admitted in Divine Specialty Hospital on 01.02.2016 and he complaints nose block, sneezing and headache on and off and during the course of treatment, it is diagnosed bilateral maxillary sinusitis and by admitting as an inpatient from 01.02.2016 to 02.02.2016, i.e., 2 days, he took treatment to the said accidental injuries in Divine Specialty Hospital.
19. The P.W.2, who is a Maxillofacial Surgeon of Sanjay Gandhi has stated in his examination-in-chief that, the Petitioner presented to B.R. Ambedkar Medical College and Hospital and later, he shifted to Zion Hospital and Research Centre, Bengaluru on 05.03.2015 and on examination, periorbital eccymosis of right eye, abrasion over forehead and eyebrow, sutured lacerated wound over upper lip and nose and C.T. face shows, fracture of the floor of the orbit right, fracture of the right frontal bone extending into the roof of the orbit, fracture of the lateral wall of right maxilla. He has further stated that, the said injuries are grievous in nature and the Petitioner was admitted in ICU and discharged on 09.03.2015 and he has undergone surgery on 01.02.2016 at Divine Specialty Hospital with advice of bilateral maxillary sinusitis.
20. From the said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained 16 M.V.C.NO.1875/2015 (SCCH-7) two grievous injuries and initially, he had taken treatment to the said accidental injuries at Dr. B.R. Ambedkar Medical College and Hospital and thereafter, by admitting as an inpatient from 05.03.2015 to 09.03.2015, i.e., 5 days, he took treatment to the said accidental injuries at Zion Hospital and thereafter, the Petitioner was admitted in Divine Specialty Hospital on 01.02.2016 to take treatment to the said accidental injuries and by admitting as inpatient from 01.02.2016 from 01.02.2016 to 02.02.2016, i.e., 2 days, totally for 7 days, he took treatment to the said accidental injuries in the said Hospital.
21. The contents of Ex.P.9 Charge Sheet 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 Auto Rickshaw bearing Registration No.KA-02-6040 by its driver itself, the said road traffic accident was taken place on 05.03.2015 at 10.15 a.m., near Swathi Palace Restaurant, which came from R.T. Nagar Police Station towards Dinnur Junction of Dinnur Main Road and dashed to the Petitioner, who was walking on the accidental road from North towards West and due to the said impact, the Petitioner fell down on the accidental road and had sustained grievous injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the Auto Rickshaw bearing Registration No.KA-02-6040 for the offences punishable under Sections 279 and 338 of IPC. There is no allegation leveled by the Investigating Officer in Ex.P.9 Charge Sheet about the negligence of the Petitioner.
22. From the said material evidence both oral and documentary, it is clearly proved that, the entire negligence is on 17 M.V.C.NO.1875/2015 (SCCH-7) the part of the driver of the offending Auto Rickshaw bearing Registration No.KA-02-6040 in the commission of the said road traffic accident and the Auto Rickshaw bearing Registration No.KA-02-6040 as well as its driver are very much involved in the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and in the said road traffic accident, the Petitioner had sustained two grievous injuries. Accordingly, I answered Issue No.1 in the Affirmative.
23. ISSUE NO.2 :- The Petitioner has produced Ex.P.10 Aadhaar Card relating to him, which disclosed that, his date of birth is on 13.05.1988. The date of accident is on 05.03.2015. From the said dates, it appears that, at the time of accident, the Petitioner was 27 years old. Hence, the age of the Petitioner is considered as 27 years at the time of accident.
24. The P.W.1 has stated that, prior to the date of accident, he was hale and healthy and was running business and earning a sum of Rupees 35,000 to Rupees 40,000/- per month. The Petitioner has produced Ex.P.11 Statement of Bank Account, Ex.P.12 Professional Tax Paid Challan and Ex.P.13 Professional Tax paid Receipt. But, only based on the said oral evidence of P.W.1 as well as the contents of Ex.P.11 to Ex.P.13, it cannot be believed and accept that, at the time of accident, the Petitioner was running business and earning a sum of Rupees 35,000/- to 40,000/- per month, as, Ex.P.11 Statement of Bank Account is only for the period from 20.03.2013 to 22.06.2013, i.e., before the accident in question, as, the date of accident is on 05.03.2015. Further, except Ex.P.11 to Ex.P.13, the Petitioner has not produced any authenticated documents to show his avocation and 18 M.V.C.NO.1875/2015 (SCCH-7) income at the time of accident. Further, the Petitioner has not disclosed the nature of business, which he was running at the time of accident. Further, the P.W.1 in his cross-examination has clearly stated that, he has not produced any documents to show his avocation and income at the time of accident. Therefore, the said evidence of P.W.1 and the contents of Ex.P.11 to Ex.P.13 relating to the avocation and income of the Petitioner are discarded. Even, the Petitioner has not disclosed his educational qualification. However, since, the Petitioner was 27 years old at the time of accident, which disclosed his family status with wife, children and parents, by considering the same, this Tribunal feels that, it is just , proper and necessary to consider the notional income of the Petitioner is of Rupees 8,000/- per month at the time of accident,. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
25. The P.W.1 has stated that, after necessary treatment, he was discharged with an advice for follow-up treatment, restricted fracture movements, not to involve in any strenuous activities and for complete bed rest and as per the advise of the Doctor, he is still continuing follow-up treatment. The P.W.2 has stated that, the Petitioner was admitted in ICU and ophthalmologist and maxillofacial surgeon's opinion was sought and advice and he was treated with antibiotics, analgesics, IV fluids, antacids and antiemetic and at the time of discharging on 09.03.2015, the Petitioner's condition was satisfactory and stable. No doubt, the Petitioner has not produced follow-up treatment records to show that, even after discharge from the Hospital, he has been regularly taking follow-up treatment to the accidental injuries as per the advice of the Doctors. But, it no way affects to consider the case of the Petitioner in respect of the nature of the 19 M.V.C.NO.1875/2015 (SCCH-7) injuries sustained by him in the said road traffic accident, line of treatment, follow-up treatment and length of treatment, as, based on the contents of Ex.P.7 Wound Certificate, Ex.P.8 Discharge Summary and Ex.P.15 Discharge Summary, this Tribunal has already observed and come to the conclusion that, in the said road traffic accident, the Petitioner had sustained lacerated wound measuring about 2 cms X 1 cm on the cheek below the right eye with bleeding injury, a lacerated wound measuring about 3 X 11 cms on the base of the nose with bleeding present and ophthalmology, i.e., two grievous injuries and initially, he had taken treatment at Dr. B.R. Ambedkar Medical College and Hospital and thereafter, by admitting as an inpatient from 05.03.2015 to 09.03.2015, i.e., 5 days, he took treatment to the said accidental injuries at Zion Hospital and Research Centre Pvt. Ltd., and again by admitting as an inpatient from 01.02.2016 to 02.02.2016, i.e., for 2 days, he took treatment to the said accidental injuries at Divine Specialty Hospital, i.e., by admitting as an inpatient for 7 days, he took treatment to the said accidental injuries in the said Hospitals. It is clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, it is found black eye of right eye (+) abrasion over the forehead + sides of eyebrow, sutured wound upper lip+ nose, small abrasion over the hand, minor bruise over the right knee, left little finger and C.T. Scan showed undisplaced fracture of the right frontal bone extending to the roof of the orbit with fracture of the floor of the right orbit extending to the later wall of the maxillary sinus with mild mucosal thickening in left maxillar, right sphenoid and bilateral ethmoid sinus. It is also clear from the contents of Discharge Summary that, at the time of discharge, the Petitioner was advised to take follow-up treatment with medication and review. It is also clearly mentioned in Ex.P.15 Discharge Summary 20 M.V.C.NO.1875/2015 (SCCH-7) that, during the course of treatment, it is diagnosed bilateral maxillary sinusitis and the Petitioner complains nose block, sneezing and headache on and under local anesthesia with Petitioner in supine position, head up betadine preparation was done, right sided rominasal cavity and over all nasal mucosa shows evidence of bilateral maxillary sinusitis and nasal cavity was packed with 4% Xylocaine with adrenaline functional endoscopie surgery was performed bilateral nasal cavity packed with merocel pack post operative and the Petitioner was treated with broad spectrum, antibiotics, analgesics and IV fluids and at the time of discharge, the Petitioner was advised to take medication and review. From this medical evidence, it is clearly proved the nature of the injuries sustained by the Petitioner in the said road traffic accident, the line of treatment taken by the Petitioner to the said accidental injures by admitting as inpatient in the said Hospitals, the length of treatment and follow-up treatment taken by him even after discharge from the Hospital, as, he was very much required the follow-up treatment to the said accidental injuries even after discharge from the Hospital and as such, it can be believed and accept.
26. The P.W.1 has stated that, the injuries sustained in the said accident have not recovered and is getting unbearable pain often and on account of the said accidental injuries, he was completely bed ridden, getting head ache and giddiness often, cannot chew hard food, cannot walk, stand, cannot lift or carry weight as prior he was doing and due to severe facial injuries, there are scar marks present over the face, which is looking ugly and his face has become dis-figured and undergoing deep mental shock, pain and sufferings and since the injuries caused are permanent in nature. He has further stated that, with the said 21 M.V.C.NO.1875/2015 (SCCH-7) earnings, he was maintaining his family members, since he is the only earning member in the family and on account of the said accidental injuries, till today, he cannot attend to his business resulted in loss of earnings and earning capacity and put to great financial hardship.
27. The P.W.2 has stated that, he has examined the Petitioner on 21.06.2016 for the assessment of disability and he complaints of pain over right side of the forehead, tears from the right eye, nasal blockage on right nostril, pain on chewing and on clinical examination tenderness on chewing on right side scar over right lateral orbit region, exampthalmous of right eye, papillary level has changed on right eye, tenderness over right ZMC region, reduced mouth opening, tears from right eye and PNS X-ray shows, fractures united and thickening of right frontal sinus. He has further stated that, the disability to fracture at 3 sites is 10%, bony orbital deformity is 10%, scar over right orbital region is 5% and motor disability of jaw is 5% i.e., totally 30%. He has further stated that, the whole body disability is about 10% and he referred medico legal issues for surgeons by George Paul. The P.W.2 has produced Ex.P.18 Outpatient Record and Ex.P.19 X-ray Films.
28. But, based on the said oral evidence of P.W.1 and P.W.2 coupled with the contents of the above referred all the medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from whole body disability of 10%, as, admittedly, the P.W.2 is not a treated Doctor and the Petitioner has not examined the treated Doctor and even, the Petitioner has not produced the disability certificate either issued by the treated Doctor or any other competent Doctor. Further, by considering the nature of work of the Petitioner and 22 M.V.C.NO.1875/2015 (SCCH-7) the nature of injuries sustained by him in the accident, the P.W.2 has not specifically assessed the permanent physical and functional disability of the Petitioner, which is arising out of the said accidental injuries. Further, the P.W.2 in his cross- examination has stated that, he has not treated the Petitioner and he has only assessed the disability of the Petitioner and now the fractures are united. He has further clearly stated that, since, the Petitioner was doing fruit business and since the fractures are united, the Petitioner is not having any difficulty to do the said fruit business. Further, the P.W.1 in his cross-examination has clearly stated that, now he is not having any breathing problem and he is having no problem to continue his earlier work and now also, he is getting the same income. From the said evidence of P.W.1 and P.W.2, it is made crystal clear that, the said accidental injuries no way affect to the Petitioner to do his business and earning capacity. Therefore, the said extent of 10% whole body disability as stated by the P.W.2, is on higher side as such, it cannot be believed and accept.
29. However, at the time of accident, the Petitioner was 27 years old and he had sustained two grievous injuries in the road traffic accident and by admitting as an inpatient totally for 7 days, he took treatment to the said accidental injuries, by considering this material factors, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 7% to the whole body, which is believable and acceptable one.
30. No doubt this Tribunal has already observed and come to the conclusion that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional 23 M.V.C.NO.1875/2015 (SCCH-7) disability of 7% to the whole body. But, based on the same, the Petitioner is not entitled for compensation towards loss of income arising out of the said permanent physical and functional disability due to the said accidental injuries and the future medical expenses, as, the P.W.2 in his cross-examination has clearly stated that, since, the Petitioner was doing fruit business and since the fractures are united, the Petitioner is not having any difficulty to do his fruit business. Further, the P.W.1, who is the Petitioner, has stated in his cross-examination that, now he is not having any breathing problem and he is also not having any problem to continue his earlier business and now also, he is getting the same income. Further, though the P.W.2 has stated in his examination-in-chief that, the Petitioner has to undergo surgery for scar revision and corrective right orbit floor reconstruction under GA, the cost would be around Rupees 40,000/-. To consider the same, neither the Petitioner nor the P.W.2 produced the medical documents and estimation. Therefore, the Petitioner is not entitled for compensation towards future loss of income arising out of permanent physical and functional disability of 7%, which caused due to accidental injuries and future medical expenses.
31. But, in the said accident, the Petitioner had sustained two grievous injuries and by admitting as an inpatient totally for 7 days, he took treatment to the said accidental injuries and at the time of accident, the Petitioner was 27 years old and due to the accidental injuries, he is suffering from permanent physical and functional disability of 7% to the whole body, the Petitioner is entitled for compensation under the following heads.
24 M.V.C.NO.1875/2015(SCCH-7)
32. As per Ex.P.7 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained two grievous injuries. The Petitioner was in the Hospital as an inpatient from 05.03.2015 to 09.03.2015, i.e., for 5 days and from 01.02.2016 to 02.02.2016, i.e., for 2 days, totally for 7 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.
33. As it is already observed that, the age of the Petitioner was 27 years. He has to lead remaining his entire life with 7% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
34. The Petitioner had sustained two grievous injuries and he was in the Hospital as an inpatient for 7 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 8,000/- per month, a sum of Rupees 24,000/- is awarded towards loss of income during the laid up period.
35. The P.W.1 has stated that, he spent more than Rupees 3,00,000/- towards medical, conveyance, nourishment and other incidental charges, etc. In this regard, the Petitioner has produced Ex.P.14 Medical Bills 15 in numbers, which is amounting of Rupees 34,383/-, Ex.P.16 Medical Bills 14 in numbers, which is amounting of Rupees 29,232/- and Ex.P.17 Medical Prescriptions 7 in numbers. No doubt, the Petitioner has not produced the 25 M.V.C.NO.1875/2015 (SCCH-7) supportive Medical Prescriptions in respect of all Ex.P.14 and Ex.P.16 Medical Bills. In this regard, the P.W.1 in his cross- examination has admitted that, all the Medical Bills produced by him are not supported to the Medical Prescriptions. But, based on the said grounds, it cannot be rejected the amount covered under Ex.P.14 and Ex.P.16 Medical Bills, as, they are the original bills. Further, the Petitioner has taken treatment at Zion Hospital and Divine Specialty Hospital, wherein, he was taken treatment as an inpatient from 05.03.2015 to 09.03.2015, i.e., for 5 days and from 01.02.2016 to 02.02.2016, i.e., for 2 days, totally for 7 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount for the medicines cannot be doubted. Hence, the amount covered under Ex.P.14 and Ex.P.16 Medical Bills can very well be taken into for consideration. Therefore, it is necessary to award the said actual medical expenses of Rupees 63,615/- (Rupees 34,383/- + Rupees 29,232/-) to the Petitioner.
36. As the Petitioner was taken treatment as an inpatient for 7 days, it is necessary to award a sum of Rupees 3,000/- towards conveyance charges, Rupees 3,000/- towards attendant charges and Rupees 4,000/- towards food, nourishment and diet charges etc.,
37. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 50,000-00
2. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
3. Rs. 24,000-00 up period 26 M.V.C.NO.1875/2015 (SCCH-7)
4. Actual medical expenses Rs. 63,615-00
5. Conveyance Rs. 3,000-00
6. Attendant Charges Rs. 3,000-00 Food, Nourishment &
7. Rs. 4,000-00 Diet charges TOTAL Rs. 1,67,615-00
38. In all, the Petitioner is entitled for total compensation of Rupees 1,67,615/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
39. The P.W.1 has stated that, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of said Auto Rickshaw, which caused the accident and the policy was in force as on the date of accident and hence, the Respondents are jointly and severally liable to pay the compensation to him under all the heads, including general and special damages.
40. While answering Issue No.1, this Tribunal has already come to the conclusion that, the entire negligence is on the part of the driver of the offending Auto Rickshaw bearing Registration No.KA-02-6040 in the commission of the said road traffic accident and the Auto Rickshaw bearing Registration No.KA-02-6040 as well as its driver are very much involved in the said road traffic accident and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and in the said road traffic accident, the Petitioner had sustained two grievous injuries.
41. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent is the R.C. Owner and the 27 M.V.C.NO.1875/2015 (SCCH-7) Respondent No.2 is an Insurer of the offending Auto Rickshaw bearing Registration No.KA-02-6040 and its Policy No.071681/31/14/02/00000966, valid from 17.04.2014 to 16.04.2015. The Respondent No.2 in its written statement has clearly admitted that, it issued Policy in respect of Auto Rickshaw bearing Registration No.KA-02-6040, Policy No.071681/31/14/02/00000966 covering the risk w.e.f 17.04.2014 to 16.04.2015 and the liability of it, is subject to the terms and conditions appended the policy, provisions of MV Act and verification of valid vehicle documents. From this evidence, which is very much available on record, it is clearly proved that, at the time of accident, the Respondent No.1 being an Owner and the RespondentNo.2 was an Insurer of the Auto Rickshaw bearing Registration No.KA-02-6040 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled by the Investigating Officer in Ex.P.9 Charge Sheet as against the driver of the offending Auto Rickshaw that, at the time of accident, he was not having a valid and effective driving license to drive such class of offending Auto Rickshaw. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being a R.C. Owner and the Respondent No.2 being an Insurer of the Auto Rickshaw bearing Registration No.KA-02-6040, are 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. In view of the above said reasons and findings on Issues, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
28 M.V.C.NO.1875/2015(SCCH-7)
42. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 1,67,615/-
with interest at the rate of 9% p.a. 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 two months from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
29 M.V.C.NO.1875/2015(SCCH-7) Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 18th day of April, 2018.) (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 : Toufeeq Ahmed
P.W.2 : Dr. Girish. G.
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 Hand Sketch
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of Statement relating to
Thoufeeq Ahmed S/o. Altaf Ahmed
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : Discharge Summary
Ex.P.9 : True copy of Charge Sheet
Ex.P.10 : Notarized Xerox Copy of Aadhaar Card
relating to Thoufeeq Ahmed
Ex.P.11 : Statement of Bank Account
Ex.P.12 : Professional Tax Paid Challan
Ex.P.13 : Professional Tax Paid Receipt
Ex.P.14 : Medical Bills (15 in nos.)
Ex.P.15 : Discharge Summary
Ex.P.16 : Medical Bills (14 in nos.)
Ex.P.17 : Medical Prescription(7 in nos.)
Ex.P.18 : Outpatient Record
Ex.P.19 : X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
30 M.V.C.NO.1875/2015(SCCH-7)
- Nil -
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
- Nil -
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.