Bangalore District Court
Sri. Srilesh S. Reddy vs K.T. Nagaraj on 20 April, 2017
SCCH-1 1 MVC 1545/2015
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 20th DAY OF APRIL 2017
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 1545/2015
Petitioner/s: Sri. Srilesh S. Reddy,
S/o. Sudhish Reddy @ G. Sudhikumar,
Aged about 16 years,
R/at No.516, Doddakanelli,
Sarjapur, Bangalore - 560 035.
Represented by his guardian mother
Smt. V.Sowmya.
(By Sri. M.Sathish, Advocate)
- V/s -
Respondent/s: 1. K.T. Nagaraj,
S/o. Thammanna D.,
Aged about 56 years,
R/at No.76A, Kuduvathi Village,
Nandi Hobli,
Chikkaballapura Taluk,
Chikkaballapura District.
(Owner/Insured of the vehicle
bearing Reg.No. KA-40-TA-3631/32)
(By Sri. K.P.Venkatesh, Advocate)
2. HDFC ERGO General Insurance
Company Ltd.,
Regd. Office: 1st Floor,
SCCH-1 2 MVC 1545/2015
165-166, Backbay Reclaimation,
H.T. Parekh Marg,
Churchgate,
Mumbai - 400 020.
Represented by its General Manager.
(Insurer of the vehicle bearing Reg.No. KA-
40-TA-3631/32 having Insurance Policy
No.2316200675629100000
Valid from 31.01.2014 to 30.01.2015)
(By Sri. Madhu Kiran, Advocate )
JUDGMENT
The guardian of the minor petitioner has filed this petition under Section 166 of the Motor Vehicles Act, 1989 seeking compensation of Rs.1,00,00,000/- for the injuries sustained by the minor petitioner in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the guardian of the minor petitioner that, on 22.10.2014 at about 11.45 p.m., minor petitioner was traveling as pillion rider in the motor cycle bearing Reg.No.KA- 01-HG-2999 near Channappana Farm on Nandi Hills Road, Chikkaballapura Taluk, at that time the Tractor and Trolly bearing Reg.No. KA-40-TA-3231/32 came from behind in high SCCH-1 3 MVC 1545/2015 speed and in a rash and negligent manner and dashed to the petitioner's motor cycle, as a result minor petitioner and the rider of the motor cycle fell down and minor petitioner sustained grievous injuries to his head, leg and other parts of the body.
3. It is further contended that, immediately after the accident minor petitioner was shifted to Columbia Asia hospital, Bangalore and thereafter, he was shifted to Sagar hospitals, Bangalore wherein he was admitted as an inpatient and underwent surgeries for the injuries sustained by him and got discharged with an advise to take rest and follow up treatment. It is also contended that, they have spent about 30,00,000/- towards the medical expenses, attendant charges etc., during the period of treatment.
4. It is further contention of the guardian of the minor petitioner that, he was hale and healthy at the time of the accident and was a bright student. Due to the grievous injuries sustained by the minor petitioner, he has suffered loss of SCCH-1 4 MVC 1545/2015 memory and lost his normalcy and also has suffered permanent disability. It is contended that, the accident has occurred due to rash and negligence on the part of the driver of the offending vehicle. The Chickballapur police have registered a case against the driver of the offending vehicle under section 279, 337 and 304(A) of IPC. Respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle bearing Reg. No.KA-40-TA-2631/32 are jointly and severally liable to pay compensation.
5. In pursuance of the filing of this petition, this Court has issued notice against all the respondents. Respondents No.1 and 2 appeared through their respective counsels and filed their written statements.
6. Respondent No.1 in his written statement has denied all the averments made in the petition. Further contended, that the Petition itself is not maintainable either in law or facts. It is also contended that, the driver of the tractor cum trailer drove the tractor very slowly by observing traffic SCCH-1 5 MVC 1545/2015 rules and he was going on the left side of the road from Karahalli towards Doddaballapura side and when he reached near Nandi Hills Cross, at that time, the petitioner and his friend one Master Karthik came from Karahalli towards Hegdehalli and hit by tractor from behind edge portion of the trailer, and hence the accident was occurred. It is also contended that, petitioner and his friend Master Karthik both are minors and the rider of the motor cycle was not having driving licence to ride the same. The accident was occurred due to the negligence of the petitioner's friend and not on the part of the driver of the Tractor.
7. It is further contention of the respondent No.1 that, at the time of accident the insurance policy was in force and valid and the same was duly insured with the 2nd respondent and the driver of the Tractor bearing Reg.No. KA-40-TA-3631 was having valid and effective driving licence at the time of the accident and also other documents are valid on the date of the accident. The respondent No.1 has reserved the right to file additional written statement under the changed SCCH-1 6 MVC 1545/2015 circumstances. It is also contended that, the compensation claimed by the petitioner is very exorbitant. Hence prayed to reject the petition.
8. The 2nd respondent in its written statement has contended that, the petition itself is not maintainable either in law or on facts. Further it has admitted the issuance of policy in favour of the 1st respondent in respect of the offending vehicle Tractor and Trolly bearing Reg.No. KA-40-TA-3631/32 and the said policy was in force from 31.01.2014 to 30.01.2015 and the liability if any, will be subject to the terms and conditions of the policy.
9. It is further contended by the Respondent No.2 that, the owner/insured and concerned police have not complied with the statutory demand as per Sec.134(c) and 158(6) of MV Act 1988. Further, the first respondent had willfully entrusted the offending vehicle to the person who did not possess valid and effective driving licence to drive the same as on the date of the accident. Hence it is not liable to SCCH-1 7 MVC 1545/2015 indemnify the insured since it is a clear breach of terms and conditions of policy. Further, the 2nd respondent seeks protection under section 147 and 148 of M.V.Act.
10. 2nd respondent further contended that, the Petitioner has to prove, that the accident was occurred due to the rash and negligent driving of the offending vehicle, the manner in which the accident has occurred, involvement of the offending vehicle in the alleged accident, the nature of injuries suffered, the treatment taken in the hospital as an inpatient, the amount spent towards medical expenses on account of accidental injuries and the disabilities suffered by the minor petitioner.
11. It is further contended that, the petition filed by the petitioner is highly excessive and exorbitant. Also Respondent has reserved the right to file additional statement of objections under the changed circumstances U/s. 170 of MV Act. Hence, prayed to dismiss the petition.
SCCH-1 8 MVC 1545/2015
12. Based on the pleadings this Court has framed the following:-
ISSUES
1. Whether the Petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that that occurred on 22-10-2014 at about 11.45 a.m, Near Channappana Farm, Nandhi Hills Road, Chikkaballapura Taluk, within the jurisdiction of Chikkaballapura Police Station on account of rash and negligent driving of the Tractor and Trolley bearing registration No.KA-40-TA-3631/32 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?
13. In order to prove the case, the guardian of the minor petitioner is examined as PW.1 and he got marked the document Ex.P1 to 9 and Ex.P16 and Ex.P17. PW.1 has also examined the Doctor as PW.2 and he got marked the documents at Ex.P.10 to 15. On the other hand, the respondent No.2 has examined the owner as RW.1 and he got marked the documents Ex.R1 to Ex.R5. Also respondent No.1 SCCH-1 9 MVC 1545/2015 has examined the driver as RW.2. Respondents have also examined the Manager, Medical Records, Sagar hospital as RW.3 and he got marked the documents Ex.R6 to Ex.R9. The respondent No.2 also examined the Manager Legal as RW.4.
14. I have heard the arguments of Petitioner's counsel and Respondents counsel.
15. Having heard the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the Negative,
3) Issue No.3 ... Partly in the Affirmative,
4) Issue No.4 ... As per final order
for the following:-
REASONS
16. Issue No.1 & 2: These two issues are
interconnected to each other, hence taken up together for discussion to avoid repetitions.
SCCH-1 10 MVC 1545/2015
17. It is the case of the guardian of the minor Petitioner that, on 22.10.2014 at about 11.45 p.m., the minor petitioner was traveling as pillion rider in the motor cycle bearing Reg.No.KA-01-HG-2999 near Channappana Farm on Nandi Hills Road, Chikkaballapura Taluk, at that time the Tractor and Trolly bearing Reg.No. KA-40-TA-3231/32 came from behind in high speed and in a rash and negligent manner and dashed to the petitioner's motor cycle, as a result minor petitioner and the rider of the motor cycle fell down and minor petitioner sustained grievous injuries to his head, leg and other parts of the body. It is contended that, the accident has occurred due to the rash and negligent driving by the driver of the offending vehicle Tractor and Trolly bearing Reg.No. KA-40- TA-3631/32. In order to prove the case, the guardian of the minor petitioner is examined as PW-1 and got marked the documents F.I.R., Mahazar, Sketch, IMV Report as Ex.P.1 to 4.
18. In the cross-examination PW.1 admits that, the motor cycle belongs to her husband and the friend of her son who is the residing in neighboring village was riding the motor SCCH-1 11 MVC 1545/2015 cycle and she does not know whether he is classmate of her son but both were attending the college. It is elicited that, she does not know about the age of the rider as 17 years. It is elicited that, her son was not having the Driving License, and she does not know whether the rider was having the Driving License or not. She came to know that Karthik relative has given the complaint and she does not know about non- mentioning in the complaint that her son was a pillion rider. It is elicited that, she has seen the motor cycle after the accident. She admits that, front portion of the motor cycle was damaged and she does not know about the rear portion of the tractor trailer was damaged. It is suggested that, as per the sketch the motor cyclist has dashed the rear portion of the trailer and the same was denied. It is suggested that, her son was riding the motor cycle and he was not having the Driving License and he himself went and dashed the rear portion of the trailer and the same was denied. She admits that, may be the speed of the tractor is 30 kms per hour. It is suggested that, a false complaint is lodged at the instance of the Karthik and the SCCH-1 12 MVC 1545/2015 same was denied. She admits that, the police have not recorded her statement.
19. In the cross examination by the Respondent No.1 counsel, it is elicited through PW.1 that, she did not witness the accident and she does not know who was riding the motor cycle bearing No.KA-01-EYHG-2999. She admits that, alongwith her son one Karthik was proceeding in the motor cycle and she does not know about her son was riding the motor cycle on the date of the accident. She admits that, her son is minor and she does not know about the age of Karthik and the contents of the police records. It is suggested that, the accident was occurred due to the negligence of her son since he was not having the Driving License and not on account of negligence of driver of the tractor and the same was denied. She admits that, she does not know who has prepared the Sketch Ex.P.3 and she says that, the Ex.P.3 may be prepared by the police. It is suggested that, as per the Ex.P.3 the rider of motor cycle went and dashed the rear portion of the tractor and the same was denied. Witness volunteers that, the driver SCCH-1 13 MVC 1545/2015 of the tractor has suddenly taken the right turn and hence the accident was occurred. It is elicited that, the Ex.P.3 is not properly drawn by the police. It is suggested that, the police have properly drawn the sketch and the accident was occurred due to negligence of her son and the same was denied. She admits that, her son was not having the Driving License. She admits that, the motor cycle belongs to her husband and there is insurance to their vehicle. She admits that, the complaint was given by Karthik's father. It is suggested that, in collusion with the police, a false complaint is registered against the driver of the tractor and the same was denied.
20. On the other hand respondent has examined the driver of the offending vehicle as RW.2 and in his affidavit he says that, he was proceeding in the tractor from Chikkaballapur towards Doddaballapur and when he reached near the layout of Karahalli cross, at that time the rider of the motor cycle who came in the very same direction came in a rash and negligent manner and hit the right portion of his trailer and as a result the accident was occurred. He says SCCH-1 14 MVC 1545/2015 that, the accident was occurred due to the negligence of the rider of the said motor cycle. The sketch which has already been produced before the court is properly drawn. He says, he went to lodge the complaint but police have not received the same.
21. In the cross examination he admits that, the police have filed the case against him. It is suggested that, he has driven the tractor in a rash and negligent manner and the same was denied. He admits that, he went to lodge the complaint but police have not received the same and he has not given the complaint to the Superior Officers when they have refused to receive the complaint.
22. Now let me appreciate oral and documentary evidence available before the court. Admittedly the PW.1 is the mother of the minor petitioner and in the cross examination of PW.1 it is elicited that, she is not an eye witness to the accident, and as such, the evidence of PW.1 is not much SCCH-1 15 MVC 1545/2015 helpful to decide the fact of rash and negligent act on the part of the driver of the alleged Tractor.
23. The respondent No.1 has taken the defence that, the accident has occurred due to the negligence of the petitioner and not on the part of driver of the Tractor. Admittedly minor petitioner is not the rider of the motor cycle and he was proceeding as a pillion rider in the motor cycle. The respondent No.1 in order to prove his defence has examined the driver of the offending vehicle as RW.2 and in his evidence he says that, when he was proceeding in the tractor from Chikkaballapur towards Doddaballapur and when he reached near the layout of Karahalli cross, at that time the rider of the motor cycle who came in the very same direction came in a rash and negligent manner and hit the right portion of his trailer and as a result the accident was occurred and he attributes negligence against the rider of the motor cycle and not against the minor petitioner. Though it is contended in the objection statement that, the accident is on account of negligence of the petitioner, driver says that, the Sketch which SCCH-1 16 MVC 1545/2015 is drawn by the police is proper and when he went to lodge the complaint, police refused to received the same. But in the cross examination he categorically admits that, the police have filed the Charge Sheet against him. He has denied the suggestion that, he has driven the tractor in a rash and negligent manner, but he claims that, when he went to lodge the complaint, police have not received the same and he has not given the complaint to the Superior Officers when they have refused to receive the complaint. Other two witnesses are not the eye witnesses to the accident.
24. On perusal of FIR which is marked as Ex.P1, complainant has made an allegation against the driver of the Tractor stating that, the Tractor which came from rear side in a rash and negligent manner has hit the motor cycle and the said complaint was given by the cousin brother of the rider of the motor cycle. Ex.P3 is the Sketch which clearly discloses that, the Tractor was proceeding ahead of the motor cycle and the motor cyclist hit the rear portion of the Trailer and the accident spot discloses that, there is a cross road and here it SCCH-1 17 MVC 1545/2015 has to be noted that, the injured is a pillion rider and the question of attributing the negligence against him does not arise. Ex.P4 IMV Report discloses that, rear left side trailer body was dented and damaged and front portion of the motor cycle was damaged and the contents of Ex.P1 complaint is against the documents Ex.P3 and Ex.P4 and involvement of the offending vehicle in the accident is not in dispute. PW.1 in the cross examination says that, the driver of the tractor has suddenly taken the right turn and hence the accident was occurred. Regarding the said contention there is no pleading, but claims that, Ex.P3 is not properly drawn by the police. I have already pointed out that, PW.1 is not an eye witness to the accident. Though RW.2 has been examined before the Court, he categorically admits that, Charge Sheet has been filed against him. Further, though the RW.2 has contended that, when he went to lodge the complaint, police have not received the same, he has not produced copy of complaint before the Court. He categorically admits that, he has not given any complaint to higher officers when the police refused to receive the complaint. I have already pointed out that, the SCCH-1 18 MVC 1545/2015 petitioner is the pillion rider and negligence cannot be attributed against him.
25. Further, though RW.1 says that, the accident was occurred due to the negligence on the part of the petitioner, in the cross examination RW.2 admits that, the rider of the motor cycle was riding the vehicle in a rash and negligent manner. Though it is suggested in the cross examination that, this petitioner was riding the motor cycle, nothing has been elicited from the mouth of PW.1 regarding the same. Having taken note of factual aspects of the case and petitioner was only a pillion rider, the negligence cannot be attributed against him and the driver has categorically admitted that, police after investigation have filed the Charge Sheet against him and he has not questioned the same and also he has not given complaint with the higher officers when the police refused to receive the complaint. Hence, in the absence of cogent evidence to prove the negligence of minor petitioner, this Court has to accept the version of PW.1 and documentary evidence SCCH-1 19 MVC 1545/2015 available before the court. Hence, I answer issue No.1 in the Affirmative, Issue No.2 in the Negative.
26. ISSUE No.3: It is the contention of the PW-1 that, immediately after the accident minor petitioner was shifted to Columbia Asia hospital, Bangalore and thereafter, he was shifted to Sagar hospitals, Bangalore wherein he was admitted as an inpatient and underwent surgeries for the injuries sustained by him and got discharged with an advise to take rest and follow up treatment. It is also contended that, they have spent about Rs. 30,00,000/- towards the medical expenses, attendant charges etc., during the period of treatment. It is also contended that, minor petitioner was hale and healthy at the time of the accident and was a bright student. Due to the grievous injuries sustained by the minor petitioner, he has suffered loss of memory and lost his normalcy and also has suffered permanent disability. Now the minor petitioner is entirely dependent on others for his daily needs. In order to substantiate his contention PW.1 has got marked the documents Ex.P5-Wound certificate, Ex.P6 and 7- SCCH-1 20 MVC 1545/2015 Two discharge Summaries, Ex.P9 Medical bills for Rs.30,97,298/-, Ex.P16-Medical bills (11 in nos.) for Rs.2,35,172/-, Ex.P17-Letter issued by the physiotherapist.
27. The guardian of the minor petitioner who has been examined as PW.1 in the cross examination admits that, her son was taken to Government hospital at the first instance and thereafter he was shifted to Columbia Asia hospital and her husband shifted him from Columbia hospital to Sagar hospital. It is elicited that, her son was studying 1st PUC at the time of the accident and he has discontinued his education and they intend to admit him in the next year. It is suggested that, he is falsely claiming that he lost the memory power and he is having neurological deficiency and the same was denied. It is elicited that, she has produced the receipt for having paid the hospital charges. It is suggested that, the advance bills are also included in the total bill and the same was denied. She admits that, Sl. No. 31 to 43 are advance bills and so also 46 and 47. It is suggested that, the credit bills also included in the Pharmacy bill and the same was denied. She admits that, SCCH-1 21 MVC 1545/2015 in the final bill Rs.1,33,000/- is included towards the Pharmacy charges and so also in the second bill to the extent of Rs.1,80,000/-. It is suggested that, bills are produced in order to claim the double claim and the same was denied. It is suggested that, her son is not having any difficulties and he is normal as before the accident and the same was denied. In the further cross examination she admits that, the final bill includes the Pharmacy charges and the Sl. No. 7 is the receipt for having paid the balance amount of final bill. Sl.No. 8 is advance receipt. It is suggested that, the petitioner was not subjected to any physiotherapy treatment and Ex.P.17 is created and produced and the same was denied.
28. The petitioner also examined the Doctor as PW.2 with regard to the disability is concerned and in his evidence he has reiterated the nature of injuries diagnosed in the hospital. He says that, after initial examination and imaging the petitioner was diagnosed to have Right Frontal Intracerebral Heamatoma with overlying fractures, left lower limb fractures and was given necessary treatment. He also SCCH-1 22 MVC 1545/2015 says that, he was subjected to further follow up treatment on 03.12.2016 and he noted the following difficulties. • He is conscious and alert but slightly slow to respond with reduced volume and fluency of speech.
• Depression over the operative area. • Persistent spasticity and mild hemiparesis on left side
with a power of 4+/5 and pronator drift, mild left sided facial weakness and spastic gait.
• Reduced memory and concentration and had to discontinue college because of the same • On/off headache with difficulty in walking. • Recurrent seizures and is on two antiepileptic drugs which he ahs to probably continue lifelong.
PW.2 has assessed the whole body permanent disability as 54%. He also got marked out patient record, discharge summary, discharge note, CT Scan report, Inpatient file, 8 CT scan films and 13 X-rays as Ex.P10 to Ex.P15.
29. In the cross examination it is elicited that, the patient was subjected to surgery by him and his team of doctors. The fracture noticed in the head was united. The patient was first discharged on 5/11/2014. Witness volunteers that, again he was admitted in October 2016. It is SCCH-1 23 MVC 1545/2015 suggested that, CT Scan reports reveals normal and the brain damage now is normal and these suggestions are denied. It is elicited that, patient has got mild difficulty in speech i.e. the reduced volume and reduced speech output. It is suggested that, the petitioner is not having any difficulties and the same was denied. It is suggested that, the petitioner has not lost the memory power and the same was denied. It is elicited that, the petitioner is having the immediate memory i.e. he can answer the question has put to him. The petitioner has got spastic gate i.e. he used to walk with difficulty. He has improved great extent from the first admission. Now already two years are over and chances off further improvement is very less. The petitioner after taking the treatment went to college but due to difficulties he was told that he was discontinued. He has advised to continue medication and rehabilitation. The medication will help avoiding reoccurring of fits. It is suggested that, there is a chances of improvement and the same was denied. It is suggested that, he has assessed the disability on higher side to help the petitioner and the same was denied.
SCCH-1 24 MVC 1545/2015
30. Now let me appreciate both oral and documentary evidence available before the Court with regard to the nature of injuries and the extent of disability is concerned.
31. PAIN AND SUFFERINGS:
The PW.1 in the petition and also in the evidence she has reiterated the nature of injuries sustained by the minor petitioner and also says that, minor petitioner has suffered the permanent disability on account of the accident. On perusal of the Ex.P5 Wound Certificate it discloses the following injuries sustained by the minor petitioner.
1. Head injury with (a) Haematoma right frontal lobe to right lateral ventricle, (b) Haematoma bi-lateral ventricle and 4th ventricle, (c) Acute subarehaniod hemorrhage - left sylvian fissure, (d) fracture of frontal lobe either side bilateral parietal and left temporal bones.
2. Abrasion present over face, neck and chest.
3. Fracture of left leg - distal end of Tibia.
4. Comminuted fracture of distal 3rd shaft of left femur. SCCH-1 25 MVC 1545/2015
5. Fracture of D7 vertebral with bilateral para-vertebral and pre-vertebral haematoma.
Doctor has opined that, the injury No.1,3,4,5 are grievous injuries and injury No.2 is simple in nature. Ex.P6 Discharge Summary of Sagar hospital reveals that, minor petitioner underwent following surgeries:
1. Right fronto temporal parietal craniotomy, evacuation of intracerebral haematoma and duraplasty on 22.10.2014.
2. ORIF with IMIL nailing of left femur, pilon, Med-
malleous screw fixation.
3. ORIF with 1/3rd Tubular plate lateral malleolus of left leg on 27.10.2014.
He was in the said hospital from 22-10-2014 to 05-11- 2014 for a period of 14 days. Again he has continued his treatment in the said hospital as per Ex.P7 Discharge Summary and underwent Autologous bone cranioplasty on 28.11.2014 and got discharged on 03.12.2014. He was totally was inpatient for a period of 40 days. In view of petitioner has suffered the above said fractures and also underwent SCCH-1 26 MVC 1545/2015 surgeries, I am of the opinion that, petitioner is entitled for compensation of Rs.50,000/-. Hence, I award Rs.50,000/- under the Head Pain and Sufferings.
32. LOSS OF FUTURE EARNINGS ON ACCOUNT OF DISABILITY:
a) Disability:
Regarding the disability is concerned the petitioner has relied upon the evidence of the Doctor PW.2 who is a consultant Neurosurgeon at Sagar hospital and has admitted in the cross examination that, he himself has continued the surgery along with his team of doctors. Particularly in the case on hand the minor petitioner has suffered head injury i.e. right frontal intracerebral haematoma with overlying fractures and doctor categorically says that, the fracture noticed in the head was united and he categorically says that, he has got difficulty in speech i.e. reduced volume and reduced speech output. He is having immediate memory i.e. he can answer the quest which is put to him. The petitioner has got spastic gate i.e. he used to walk with difficulty. Further he also says that, minor petitioner has improved great extent from the first SCCH-1 27 MVC 1545/2015 admission and now already 2 years are over and chances of further improvement is very less. The Doctor also has assessed the disability to the extent of 54% and the same is for whole body and nothing is elicited to disbelieve the version of the Doctor, except suggesting that, minor petitioner is not having any difficulties. Thus for having taken note of the medical records including Wound certificate and Discharge summaries and taking into note of nature of treatment he has taken, this Court has to accept the evidence of PW.2 and the documents produced by the PW.2 before the Court also corroborates the nature of treatment given to the injured. Hence this Court has accepted the disability of 54% to whole body.
b) Age & multiplier:
It is important to note that, to prove the age of the minor petitioner PW.1 has not produced any documents before the Court. Hence this Court has relied upon the documents which came into existence immediately after the accident. On perusal Ex.P5 Wound certificate of Columbia Asia hospital, SCCH-1 28 MVC 1545/2015 Discharge Summary of Sagar hospitals and Charge Sheet, age of the petitioner is mentioned as 16 years. In the cross examination PW.1 admits that, her son was studying 1st PUC at the time of the accident. Hence this Court has accepted the petitioner's age as 16 years and was a student at the time of the accident. Having taken note of the petitioner's age as 16 years, the relevant multiplier applicable between the age group of 15 to 20 is 18 as per the judgment reported in 2009 ACJ 1298 (Sarala Varma & Ors. Vs. Delhi Transport Corporation).
c) Income:
In the case on hand the accident was taken place on 22.10.2014 and there is no any material before the Court that, he is brilliant student and also PW.1 has not produced any academic documents of the minor petitioner before the Court.
However, in the cross examination of PW.1 who is the mother of minor petitioner has categorically admits that, her son was studying 1st PUC at the time of the accident. Further more, PW.2 also says that, petitioner after taking the treatment went to college but due to difficulties it was told that, he was SCCH-1 29 MVC 1545/2015 discontinued. Hence it is clear that, the minor petitioner has discontinued the education on account of the accident. Now the question before the Court is how much income this Court has to take, since the minor petitioner has discontinued his education and if at all he would have continued his education, he might have had better future prospectus.
33. I would like to rely upon the judgment reported in 2004 ACJ 1441 (V.Mekala vs. M.Malathi and another) and the case is also called as Mekala case. In this case the Hon'ble Court has taken 70% disability and added 50% for future prospectus and taken income of Rs.10,000/- and while taking the income, the Hon'ble Apex Court has also taken note of injured as 16 years and was a brilliant student of class XI, holding first rank in his school. Hence in view of the judgment referred supra, and in the absence of academic documents and taking into note of the accident was taken place in 2014, and he is a 1st PUC student at the time of the accident, I am of the opinion that in order to give justice to the victim this Court would take his notional income at Rs.6,000/- p.m. SCCH-1 30 MVC 1545/2015 Further more, this Court also has to take note of the nature of the injuries sustained by him and he has suffered head injuries and also subjected to various surgeries and he has to lead rest of his life with the disability of 54%. Hence, in view of the judgment of Apex Court reported in 2014 ACJ 627 (Syed Sqdiq and Others Vs. Divisional Manager, United India Insurance Co., Ltd.,) the Hon'ble Supreme Court of India assessed the income at Rs.6,500/- per month for a vegetable vendor and assessed the permanent functional disability at 85% and added 50% income for future prospects and also awarded compensation on other heads such as cost of artificial leg, for pain and suffering, for loss of expectation of life, loss of amenities in life, for medical and incidental expenses and litigation costs.
In the case on hand, the notional income of the petitioner is taken as Rs.6,000/- per month. In the judgment referred supra, the Apex Court has allowed 50% of income for future prospects. Thus, the total income of petitioner works out to Rs.9,000/-. Hence, the petitioner is entitled for compensation SCCH-1 31 MVC 1545/2015 under the head of loss of earning due to disability as:
Rs.9,000x12x18x54/100 = Rs.10,49,760/-. Hence, I award Rs.10,49,760/- towards loss of earning due to disability.
34. TRAVELLING, CONVEYANCE AND OTHER INCIDENTAL EXPENSES:
During the treatment period parents of the minor Petitioner must have spent amount towards conveyance and other incidental expenses. Minor petitioner was inpatient at Sagar hospitals and was subjected to surgeries i.e. Right fronto temporal parietal craniotomy, evacuation of intracerebral haematoma and duraplasty on 22.10.2014, ORIF with IMIL nailing of left femur, pilon, Med-malleous screw fixation, ORIF with 1/3rd Tubular plate lateral mallolus of left leg on 27.10.2014 and he was in the hospital for a period of 40 days and this court has accepted the disability assessed by the PW.2 to whole body as 54%. In view of considering that, he has suffered 54% disability because of head injury and other injuries, I award Rs.30,000/- under the head conveyance, SCCH-1 32 MVC 1545/2015 attendant charges, food and nourishment and other incidental expenses.
35. LOSS OF AMENITIES IN LIFE:
The petitioner is aged about 16 years and he has suffered the 54% disability because of head injury and other injuries and there is loss of marriage prospectus also. Further more, minor petitioner has lost his education and PW.2 also says that, petitioner after taking the treatment went to college but due to difficulties it was told that, he was discontinued. Hence, on account of his age being 16 years and he has to lead his rest of life with the disability of 54%, I am of the opinion that, the Petitioner is entitled for an amount of Rs.75,000/- on the head loss of amenities in life and loss of marriage prospectus.
36. MEDICAL EXPENSES:
With regard to the medical expenses is concerned, it has to be noted that, when this Court noticed that, there is discrepancy in the medical bills, advance bills and other bills, SCCH-1 33 MVC 1545/2015 the counsel appearing for the petitioner has filed a fresh memo with list to the tune of Rs.18,10,752/-. On perusal of the bills it discloses that, PW.1 has produced finals bills issued by the Sagar hospitals for having admitted the minor petitioner in the said hospital from 22.10.2014 to 05.11.2014 and 05.11.2014 to 03.12.2014 for almost 40 days amounting to Rs.8,48,198/- and 6,09,592/-. Further more, PW.1 has produced certificate issued by Scorpio Clinic for being given the physiotherapy treatment to her son, but she has not examined the author of the said document nor produced any supporting receipts for having spent the said amount. Also PW.1 has produced receipt of Rs.29,592/- and it is the balance amount paid towards the final bill amounting to Rs.8,48,198/- and hence the same cannot be considered. Further, PW.1 has also produced advance deposit receipt amounting to Rs.10,000/- which was paid towards hospitalization on 19.10.2016 and hence the said receipt cannot be considered. It has to be noted that, Sl.No.78 and 79 amounting Rs.500/- each are double claims and the same has to be deducted. In the cross examination PW.1 admits that, final bill includes the SCCH-1 34 MVC 1545/2015 Pharmacy charges and Sl.No.7 is the receipt for having paid the balance amount of final bill and Sl.No.8 is the advance receipt. Hence this Court has accepted the medical bills to the tune of Rs.15,70,769/-(after deducting Rs.10,000/-, Rs.29,592/-, Rs.2,00,000/- and Rs.1,000/-) and after scrutiny. Hence I award Rs.15,70,769/- which is rounded off to Rs.15,71,000/- under the head medical expenses.
37. FUTURE MEDICAL EXPENSES:
It is the claim of the guardian of the minor petitioner that, he has sustained right frontal intracerebral post traumatic haematoma, left fracture distal 3rd femur and left bimalleolar fracture, pilon fracture of left leg and underwent surgery for head and left femur and ORIF plate and screw fixation was done. There is no any document before the Court that, minor petitioner has undergone removal of implants. Hence it is a fit case to award an amount of Rs.50,000/- towards future medical expenses. Hence I award Rs.50,000/- under the head future medical expenses.SCCH-1 35 MVC 1545/2015
The details of compensation, I propose to award are as under:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 50,000.00
2. Loss of future earnings due to Rs. 10,49,760.00
disability (9,000x12x18x54/100)
3. Medical expenses Rs. 15,71,000.00
4. Conveyance, attendant charges, 30,000.00
food and nourishment and other
incidental expenses.
5. Loss of amenities in life Rs. 75,000.00
6. Future Medical expenses 50,000.00
Total Rs. 28,25,760.00
In all the Petitioner is entitled for compensation of Rs.28,25,760/- and the same is rounded off to Rs.28,26,000/-.
38. INTEREST:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100) SCCH-1 36 MVC 1545/2015 (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
39. LIABILITY:
As regards the liability is concerned, it is the contention of the respondent counsel that, the vehicle in the accident is tractor and trailer and there is no separate insurance in respect of the trailer and there is a violation of terms and conditions of the policy and hence, the company is not liable to pay compensation. On the other hand, the Counsel appearing for the petitioner in his arguments he contends that, the 2nd respondent has issued a policy bearing No. 2316200675629100000 in respect of Tractor and Trolley bearing Reg.No.KA-40-TA-3631/32 and the said policy was in SCCH-1 37 MVC 1545/2015 force from 31.01.2014 to 30.01.2015 and hence the insurance company is liable to pay the compensation to the petitioner.
The Counsel for the petitioner has relied upon the following judgments:
2009 ACJ 514 (United India Insurance Co., Ltd., vs. Koduru Bhagyamma and others). In this judgment the Hon'ble Andhra Pradesh High Court has held that, "trailer attached to a motor vehicle is a part of motor vehicles itself; no separate insurance is contemplated for a trailer and when the trailer is attached to a tractor which is insured, it becomes part of the tractor and hence the insurance company is liable to pay the compensation."
2014 ACJ 1727 (United India Insurance Co, Ltd., vs. Suman and others). In this judgment Hon'ble Allahabad High Court has held that, "Tractor-trailer combination would constitute a motor vehicle and even a goods vehicle if it is used for commercial purpose of transporting goods - SCCH-1 38 MVC 1545/2015 Whether trailer attached to tractor and used for commercial purpose is required to be separately registered and insured - Held: yes; but if the combination is not being used for any commercial purpose, the trailer does not require separate insurance and registration."
40. On the other hand, respondent No.1 i.e. owner of the offending vehicle has examined himself as RW.1 and in his affidavit he says that, he has purchased the said vehicle through loan and the same is insured with the 2nd respondent and hence the insurance company is liable to pay compensation to the petitioners. He has also got marked the documents Registration certificate, driving license, policy copy and bank statement as Ex.R.1 to Ex.R5. In the cross examination he admits that, in the bank statement it is mentioned as tractor loan. He denies the suggestion tempo traveler, at the time of the accident, there was no any insurance to the trailer.
SCCH-1 39 MVC 1545/2015
41. The 2nd respondent has also examined the Manager Legal as RW.4 and in his affidavit he has reiterated the averments made in the objection statement and admitted the issuance of policy in respect of the offending vehicle. It is contended tempo traveler, at the time of the accident the trailer vehicle bearing No.KA-40-TA-3632 was not insured with them and the owner of the vehicle also admitted the same. Further, the driver of the tractor was not having valid and effective driving license to drive the same. In the cross examination he admits tempo traveler, he did not know about the original driving license has been compared while marking the Ex.R.3. He has not produced any copy of the notice or postal acknowledgment for having issued the notice to the owner.
The counsel appearing for the 1st respondent i.e. owner also has relied upon the very same judgment reported in 2009 ACJ 514 and 2014 ACJ 1727.
Further counsel for 1st respondent has relied upon the unreported judgment dated 31st July 2014 -
SCCH-1 40 MVC 1545/2015MAC.APP.554/2012 and in this judgment Delhi High Court has held that, "the tractor without equipment like trolley etc., is of no use and it can be useful for the agricultural purpose, if other equipments are attached with it."
Further observed that, "the word agricultural purpose denotes wide amplitude. It is not only the tractor simpliciter insured, rather it is insured for agricultural purposes. Undisputedly, the insurance policy covers the tractor for agricultural purposes. Therefore, mere attachment of a trolley with a Tractor does not tantamount to violation of terms and conditions of the insurance policy."
The counsel also relied upon the unreported judgment of Delhi High Court - MAC.APP.889/2010 (New India Assurance Co., LTd., vs. Sanjay Tyagi and Ors). In this judgment it is held that, "Insurance policy was a comprehensive policy for agricultural purpose." Further held that, "the tractor without equipment like Trolly etc., is of no use and it can be useful for the agricultural purpose, if other equipments are attached with it."
SCCH-1 41 MVC 1545/2015The counsel also relied upon the judgment of the Apex Court passed in Civil Appeal No.7137 of 2013 arising out of SLP(C) No.21139 of 2011) (Kishan gopal and Anr. Vs. Lala & Ors.). In the case, a boy was traveled in the Trolley of the Tractor and in the case on hand, facts are different and victim is 3rd party.
42. In keeping the principles laid down in the judgments referred supra, and contentions urged by both the petitioner and respondent counsels, this Court has to appreciate the factual aspects of the case. Admittedly the insurance company has issued the policy in terms of Ex.R4 and the same is miscellaneous and special type of package policy and the respondent No.1 also produced the driving licence which is marked as Ex.R3 and the driver is having the driving licence to drive the tractor and the R.C. in respect of the tractor and trailer is also stands in the name of the owner K.T.Nagaraju as per Ex.R1 and Ex.R2 and the same is valid up to 21.05.2029. Hence it is clear that, the tractor is purchased for the agricultural purpose. It is the contention of the SCCH-1 42 MVC 1545/2015 respondent No.2 that, the tractor is attached to the trailer is converted for the commercial purpose and the said contention cannot be accepted as per the judgments referred by petitioner counsel i.e. the judgment of Andhra Pradesh High Court and Allahabad High Court. No doubt if the tractor and trailer is used for commercial purpose it requires separate insurance. In the case on hand except the contention, no material is placed before the Court to prove that, it is used for commercial purpose. In the absence of any proof that the tractor and trailer is used for commercial purpose, I did not find any force in the contention of the respondent No.2 that, there is a clear violation of terms and conditions of the policy. Mere taking the defence is not enough, the same has to be substantiated by placing the supporting material before the Court and the insurance company has failed to prove the same. Mere attachment of trailer itself does not disentitle the petitioner in getting the compensation. Admittedly the policy was in force in respect of Tractor, and Trailer is attached to tractor for the agricultural purpose. Under such circumstances, the victim is also 3rd party. For having taken note of the same, I am of the SCCH-1 43 MVC 1545/2015 opinion that the insurance company is liable to pay the compensation and as on the date of accident the tractor was insured with the insurance company and the policy was in force. Hence, the respondent No.1 and 2 are jointly and severally liable to pay compensation. However, primary liability is fixed on respondent No.2 insurance company to satisfy the award. Hence, this issue is answered accordingly.
43. Issue No.4: In view of the discussions made above, I proceed to pass the following:
ORDER The petition filed by the minor petitioner is allowed in part against the respondents.
The minor petitioner is entitled for total compensation of Rs.28,26,000/-.
He is entitled for interest at the rate of 9% per annum only on Rs.27,76,000/- from the date of petition till realization.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to SCCH-1 44 MVC 1545/2015 deposit the compensation amount within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, Rs.20,00,000/- is to be released in the name of guardian of the minor petitioner. Remaining Rs.8,26,000/- with entire interest shall be kept in F.D. in the name of minor petitioner for a period of 5 years. Guardian of the minor petitioner shall not create any encumbrances on the F.D. amount.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open Court on this the 20th April 2017) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : V.Sowmya
P.W.2 : Dr. Praveen K.S.
SCCH-1 45 MVC 1545/2015
Documents marked on behalf of the petitioners:
Ex.P.1 FIR Ex.P.2 Mahazar Ex.P.3 Sketch Ex.P.4 IMV report Ex.P.5 Wound certificate Ex.P.6 & 7 Discharge summery (2 in nos.) Ex.P.8 Chargesheet Ex.P.9 Medical bills (90 in nos.) for Rs. 30,97,298/- Ex.P.10 Outpatient record Ex.P.11 Discharge summery Ex.P.12 Discharge note Ex.P.13 CT scan report Ex.P.14 Inpatient file Ex.P.15 8 CT scan films and 13 x-rays Ex.P-16 : Medical bills (11 in nos.) for Rs. 2,35,172/- Ex.P-17 : Letter issued by the physiotherapist
Witnesses examined on behalf of the respondents :
RW.1 : K.T. Nagaraj RW.2 : Muni Anjanappa RW.3 : Vinay Kumar S. RW.4 : R. Jayashekara
Documents marked on behalf of the respondents: Nil.
Ex.R.1 & 2: Registration certificate of tractor and trailer
Ex.R.3 : Driving license
SCCH-1 46 MVC 1545/2015
Ex.R.4 : Policy copy
Ex.R.5 : Bank Statement
Ex.R.6 : Authorisation letter
Ex.R.7 to 9: Medical bills
(H.P.SANDESH)
Member, Prl., M.A .C.T. Bangalore
*S.D.*
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