Bangalore District Court
Mr.Yashu Kumar.B.V vs The Manager on 1 June, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 1st DAY OF JUNE, 2017
PRESENT: SMT. B.N. SUJATHA, B.Sc., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.3975/2015
PETITIONER: Mr.Yashu Kumar.B.V,
S/o.Late.Vishwanath.B.K,
Aged about 43 years,
Residing at No.302, 2nd floor,
Shreebhumi, Vaastubhumi Layout,
Seegehalli, Bangalore - 67.
(By Pleader Sri. Mohd Sheriff ........... Advocate)
--- V/S ---
RESPONDENTS: 1. The Manager,
The New India Assurance Co., Ltd.,
2nd Floor, Mahalakshmi Chambers,
M.G.Road, Bangalore - 01.
(By Pleader Smt. K.Usha .................. Advocate)
2. Mr. Shaik Rafi,
S/o. MD Hussain,
Door No.6-180, Nandamurupet,
Nuzvid, Krishna District - 521 201.
Andhra Pradesh State.
(Exparte)
JUDGMENT
The petitioner has filed this petition under Section 166 of Motor Vehicle Act praying for compensation of 2 SCCH - 11 MVC 3975/2015 Rs.50,00,000/- from the respondents for the injuries sustained by him in road traffic accident.
2. The case of the petitioner in brief is as hereunder:
It is averred that on 29.07.2015 at about 9.30 p.m., the petitioner was riding his motor cycle bearing Regn.No.KA-53-EC-5165 near Kadugodi railways flyover, Kadugodi Hoskote main road, Bangalore city within the jurisdiction of whitefield Traffic Police station, Bangalore city. At that time, the driver of the lorry bearing Regn.No.AP-29-U-7659 drove the said lorry at a very high speed in a rash and negligent manner, so as to endanger human life and dashed against the petitioner's motor cycle from behind. As a result of which petitioner was knocked down from the motor cycle and sustained injuries to leg, thigh and other parts of the body. It is averred that, Immediately after the accident, the petitioner was shifted to Hosmat Hospital, Bangalore for treatment wherein he has undergone treatment and has spent Rs.50,00,000/- towards medical expenses and incidental charges. It is averred that the petitioner was working as a Area Sales 3 SCCH - 11 MVC 3975/2015 Manager at T.E.Connectivity earning salary of Rs.1,02,342/- per month. The petitioner is also an Badminton and athletic player and has participated in various Tournaments and represented Karnataka State both at State and National level Badminton Championships. It is averred that the petitioner was also a part time Badminton Coach and was earning a sum of Rs.30,000/- per month. On account of accidental injuries petitioner is bed ridden and lost his income. It is averred that first respondent is insurer and 2nd respondent is the insured of the lorry bearing Regn.No.AP-29-U-7659 and both of them are jointly and severally liable to pay compensation to the petitioner. It is averred that Whitefiled traffic police have registered a case against the driver of the lorry in crime No.120/2015 for the offences punishable under section 279, 337 of I.P.C. On these grounds petitioner has filed above petition for the reliefs stated supra.
3. Inspite of service of notice, second respondent has remained absent. Hence, he was placed ex-parte. First Respondent has filed objection statement and has denied the petition averments in to except admitting issue 4 SCCH - 11 MVC 3975/2015 of policy in favour of second respondent in respect of the lorry bearing Regn.No.AP-29-YU-2659. It is contended that the driver of the lorry did not possess driving licence and the owner of the lorry did not possess FC and permit. The second respondent has violated the terms and conditions of insurance policy, as such first respondent is not liable to indemnify second respondent. It is further contended that accident occurred on account of rash and negligent riding of the motor cycle bearing Regn.No.KA-53-EC-5165 by the petitioner. On these grounds first Respondent has sought for dismissal of the petition.
4. From the above facts, the following issues have been framed by the then Presiding Officer of the Tribunal:
1. Whether petitioner proves that, he sustained grievous injuries due to the actionable negligence on the part of the driver of offending vehicle bearing No. AP-29-U-7659 on 29.07.2015 at about 9.10 p.m., near Kadugodi Railway Flyover, Kadugodi Hoskote Main Road, Bangalore when he was riding motor cycle bearing No.KA-53-EC-5165?
2. Whether respondent No.1 proves that, as on the date of accident, driver of the offending vehicle was not holding valid and effective driving licence and said vehicle was not having permit and Fitness certificate and respondent No.2 violated 5 SCCH - 11 MVC 3975/2015 the terms and conditions of insurance policy ?
3. Whether petitioner is entitled for the compensation as prayed in the claim petition? If so, what is the quantum of compensation and from whom?
4. What order or award?
5. In order to substantiate his case petitioner has got examined himself as PW.1 and has produced documents marked as Ex.P.1 to 92. Petitioner has got examined Dr.Deepu.N.K as PW.2 and has produced documents marked as Ex.P.93 to 95. Smt.Nagarathna.C.K H.R.Manager of TE Connectivity India Pvt. Ltd., is examined as PW.3 she has not produced any record but has stated that Ex.P.12 to 18 is issued by her company and Dr.Ajith Benedict Royan is examined as PW.4 and has produced documents marked as Ex.P.96 and 97.
Respondents have not let in evidence either oral or documentary.
6. Heard the arguments.
7. Findings of this Court on the above issues are as under:-
Issue No.1 : In the Affirmative 6 SCCH - 11 MVC 3975/2015 Issue No.2 : In the Negative Issue No.3 : Partly in the Affirmative; Issue No.4 : As per final order for the following:-
-:REASONS:-
8. ISSUE NO.1 AND 2:- These issues are taken up together for consideration as the points for discussion are one and the same and to avoid repetition.
9. It is the case of the petitioner that on 29.07.2015 at about 9.30 p.m., the petitioner was riding his motor cycle bearing Regn.No.KA-53-EC-5165 near Kadugodi railways flyover, Kadugodi Hoskote main road, Bangalore city within the jurisdiction of whitefield Traffic Police station, Bangalore city. At that time, the driver of the lorry bearing Regn.No.AP-29-U-7659 drove the said lorry at a very high speed in a rash and negligent manner, so as to endanger human life and dashed against the petitioner's motor cycle from behind. As a result of which petitioner was knocked down from the motor cycle and sustained injuries to leg, thigh and other parts of the body. On the other hand Respondent No.1 has contended that the driver of the lorry did not possess driving licence and 7 SCCH - 11 MVC 3975/2015 the owner of the lorry did not possess FC and permit. The second respondent has violated the terms and conditions of insurance policy, as such first respondent is not liable to indemnify second respondent. It is further contended that accident occurred on account of rash and negligent driving of the motor cycle bearing Regn.No.KA-53-EC-5165 by the petitioner. Further respondent No.1 has admitted issuance of policy in favour of second respondent in respect of the said vehicle.
10. The petitioner in order to substantiate his case has got examined himself as P.W.1. He has filed affidavit by way of examination in chief and has re-iterated to the averments made in the petition. In his further examination in chief P.W.1 has produced FIR, complaint, wound certificate, hand sketch map, spot panchanama, IMV Report, charge sheet and driving licence which are marked as Ex.P.1 to 8 and has produced other document which will be discussed at appropriate time and they are marked as Ex.P.11 to 92.
11. In the course of cross-examination by the learned counsel appearing for respondent No.1 it is elicited 8 SCCH - 11 MVC 3975/2015 that accident has taken place at the starting point of Kadugodi flyover and this witness was at the starting point of the flyover. This witness is not certain if there is a gap in the center median at the place of accident. It is denied suggestion that this witness reduced the speed of his vehicle without giving any indication or signal and due to the negligence of this witness accident occurred. This witness has stated that since lorry hit to his motor cycle from behind he did not see lorry prior to the accident. It is stated by this witness that his leg was struck to the front wheel of the lorry and was dragged to a distance of 100 feet and for the said reason this witness could not see the registration number of the lorry. It is admitted suggestion that other vehicles were plying on the road at the time of accident. It is denied suggestion that since this witness did not see the registration number of the lorry that caused accident has falsely implicated lorry bearing Regn.No.AP- 29-U-7659. In this case respondent No.1 has not denied accident but has contended that on account of rash and negligent riding of the motor cycle accident has occurred. But the respondent No.1 has not examined the driver of the lorry or any of the eye witnesses to substantiate his 9 SCCH - 11 MVC 3975/2015 defence that is set forth in the written statement filed by it. That the questions that are posed to PW.1 in the course of his cross-examination are contrary to the defence and has set up new case. On perusal of the police records it could be seen that the police have recorded the statement of the injured/petitioner while under treatment on the day of accident itself. Petitioner has stated that the driver of the lorry bearing Regn.No.AP-29-U7659 drove his vehicle in rash and negligent and caused accident. It is further stated that the driver of the lorry fled away from the scene of occurrence immediately after the accident. Ex.P.4/rough sketch shows that when the petitioner was riding his motor cycle bearing Regn.No.KA-53-EC-5165 towards Hosakote on the left side of the flyover, then the driver of the lorry bearing Regn.No.AP-29-U7659 who was driving in the center of the flyover has suddenly come to the left side of the flyover and has hit to the motor cycle. Further rough sketch shows that on either side of flyover there is supporting wall which is to a height of 3 feet. Ex.P.5/spot mahazar, Ex.P.6/IMV report. The inspector of motor vehicle has inspected motor cycle and lorry and has mentioned the damages found on both the vehicles. The 10 SCCH - 11 MVC 3975/2015 front pannel of right side of the motor cycle is scratched. It shows that the driver of the lorry has come towards the left side and has hit to the right side of the motor cycle. Further Inspector of motor vehicles has opined that accident was not due to mechanical defect of either vehicles. Ex.P.5/charge sheet is filed by Sub-Inspector whitefield traffic police against the driver of the lorry namely Nagoor Mohammed, bearing Registration number AP-29-U-7659 for offences punishable under section 279, 338 of IPC R/W/Section 134(a) and (b) R/W. 187 of MV Act. Ex.P.8/driving licence of the PW.1, it shows that PW.1 possessed valid and effective driving licence to driver MCWG. The oral and documentary testimony of PW.1 coupled with police records it discloses that on account of rash and negligent driving of the lorry by its driver accident has occurred and that the petitioner has sustained injuries as mentioned in Ex.P.3/wound certificate. Respondent No.1 has not let in evidence either oral and documentary to show that the driver of the lorry did not possess driving licence and that the insured/owner of the lorry did not possess permit and FC. In the absence of oral and documentary testimony it cannot be held that respondent 11 SCCH - 11 MVC 3975/2015 No.1 has discharged the burden of issue that is on him. In the light of the above discussion I have no hesitation to answer Issue No.1 in the Affirmative and issue No.2 in the Negative.
12. ISSUE No.3: Petitioner has stated in his petition that he had sustained extensive degloving injury right thigh with severely crushed quadriceps muscles and rectus-femoris's distal 1/3rd right thigh with internal degloving till groin with skin loss without bleeding and severe contamination. It is further contended that immediately after the accident he was admitted to Hosmat Hospital. Ex.P.3/wound certificate of Hosmat Hospital mentions that petitioner had sustained degloving injury over 1/3rd of right thigh and over right knee exposing patella, tibial condyle, crushed muscles and tendons with severe contamination. Doctor has opined that the said injury is grievous in nature. Petitioner who has got examined as PW.1 has filed affidavit by way of examination in chief and has reiterated to the averments made in the petition. In his further examination in chief petitioner has produced three discharge summaries of Hosmat Hospital wherein it shows that he has taken treatment as inpatient 12 SCCH - 11 MVC 3975/2015 on 30.7.2015 to 4.9.2015, 30.9.2015 and on 16.10.2016 the same are marked as Ex.P.9 to 11. Further petitioner has produced 46 photographs marked as Ex.P.25 to 70 and CD that is marked Ex.P.71. Petitioner in order to establish his case has examined Dr.Deepu N.K of Hosmat Hospital as PW.2 and Dr.Ajit Benedict Royan of Hosmat Hospital as PW.4. They have filed affidavit by way of examination in chief and in their further examination in chief PW.2 has produced 7 inpatient records, outpatient records and X-ray. The same are Ex.P.93 to 95. PW.4 in his further examination in chief has produced inpatient bills, OPD bills and the same are marked as Ex.P.96 and
97. PW.2 has stated in his evidence that petitioner has sustained (1) extensive degloving injury right thigh with severely crushed quadriceps muscles and rectus-fermoris distal 1/3rd right thigh with internal degloving till groin with skin loss without bleeding and severe contamination. (2) all major blood vessels were exposed and (3) abrasion of 4 x 5 cm over left wrist. Petitioner underwent -
a) Major wound debridement right thigh on 30.07.2015
b) Wound debridement + free ALT Flap right thigh on 31.07.2015 13 SCCH - 11 MVC 3975/2015
c) Re-exploration + Reanastomosis of Vessels free ALT flap right thigh on 31.07.2015
d) Wound debridement right thigh + Excision of ALT flap on 03.08.2015
e) Lateral Gastrocnemius muscle flap +Embolectomy of sural artery + wound debridement + SSG right leg on 05.08.2015
f) Wound inspection + Major dressing Bilateral lower limb on 07.08.2015
g) Wound Inspection + Dressing both legs on 10.08.2015
h) Wound Inspection + Major SSG Bilateral lower limb on 12.08.2015
i) Wound inspection and dressing + VAC application right leg on 14.08.2015
j) Wound Inspection and dressing right leg on 17.08.2015
k) Wound debridement + Gastrocnemius flap + SSG Right leg on 19.08.2015
l) Wound inspection + Dressing bilateral leg on 21.08.2015
m) Dressing and wound inspection on 24.08.2015
n) Wound Inspection + Dressing Bilateral lower limb and right upper limb on 26.08.2015
o) Wound Inspection + Dressing right leg on 28.08.2015 And was discharged on 4.9.2015. He has taken follow up on 30.9.2015 and then he was admitted for 14 SCCH - 11 MVC 3975/2015 following procedure. During the second admission petitioner underwent advancement of flap right knee on the same day and was discharged with an advise to follow up with vaccum dressing at home till 16.10.2015. That on 16.10.2015 petitioner was admitted for the 3rd time to Hosmat Hospital, then he underwent wound debridement and SSG right leg and was discharged on the same day. This witness has stated that the injuries sustained by the petitioner are grievous in nature. In the course of cross- examination of PW.2 by the learned counsel appearing for respondent No.1 it is denied suggestion that petitioner had not sustained injuries mentioned by this witness. Except the above said bald and vague suggestion of denial nothing is elicited from this witness. Since the injuries sustained by the petitioner are grievous in nature petitioner is entitled for compensation under the following head.
1. Pain shock and agony
2. Medical expenses, attendant, conveyance, food, diet , nourishment and incidental charges
3. Loss of income during treatment period
4. Loss of future income on account of disability
5. Future medical expenses 15 SCCH - 11 MVC 3975/2015
6. Disappointment, discomfort, fun and loss of amenities.
7. Vehicle damages PAIN, SHOCK AND AGONEY
13. Petitioner is entitled for compensation of Rs.3,00,000/-.
MEDICAL EXPENSES, ATTENDANT, CONVEYANCE, FOOD, DIET, NOURISHMENT AND INCIDENTAL CHARGES
14. Petitioner has contended in his petition that he has spent Rs.50,00,000/- towards medical, traveling and other incidental expenses. Petitioner who has got examined as PW.1 has re-iterated to the averments made in petition and has stated on oath that he has got reimbursement facility from his employer on account of contract of employment, the medical bills during the stay of this witness as inpatient was reimbursed in part by the New India Assurance Co. Ltd., (Medi assist), For admission on 30.7.2015 to 4.9.2015 insurance company has paid Rs.5,55,000/- and Rs.5,43,268/- is paid by patient. It is stated that a sum of Rs,5,43,268/- is dis-allowed amount. For admission on 30.9.2015 16 SCCH - 11 MVC 3975/2015 Rs.34,000/- is paid by patient and for admission on 16.10.2015, Rs.44,000/- is paid by patient. In all a sum of Rs.6,21,468/- is paid by the patient/petitioner. It is further stated on oath that apart from medical expenses, petitioner has incurred Rs.2 lakhs towards follow up treatment after discharge from Hospital. In this regard petitioner has produced medical bills and physiotherapy bills which is to a tune of Rs.1,51,032/-. It is stated on oath that the doctors of Satya Sai Hospital advised the petitioner to undergo CPM physiotherapy and the petitioner has started physiotherapy from 4.11.2015 and the doctors had advised to hire CPM on rent at the rate of Rs.500/- per day for a period of 60 days which is to a tune of Rs.30,000/-. It is stated that doctors of Hosmat Hospital have advised the petitioner to wear pressing garments for 2 years which need to be changed every 3 months. In this regard petitioner has produced certificate issued by Dr.Deepu, plastic surgeon and has produced bill issued by Unity Pharma dated 4.2.2016 which is to a tune of Rs.24,799/-. In his further examination in chief PW.1 has produced Ex.P.3/medical bills, Ex.P.9-11/discharge summaries, Ex.P.73/prescriptions issued by Satya Sai 17 SCCH - 11 MVC 3975/2015 Orthopedic multi specialty Hospital, Ex.P.75/98 medical bills, Ex.P.76/patient bill and receipt, Ex.P.77/physiotherapy bills. In the course of cross- examination by the learned counsel appearing of respondent No.1 it is elicited that petitioner had sustained degloving injury and not fractured injuries. It is denied suggestion that petitioner has got reimbursement of medical bills to a tune of Rs.5,55,000/- from the insurance company. On perusal of 3 discharge summaries of Hosmat Hospital it mentions that petitioner was diagnosed for extensive degloving injury right thigh with severely crushed quadriceps muscle and rectus - femoris distal 1/3rd right with internal degloving till groin. Petitioner was subjected to the procedure stated above i.e.
(a) to (o). Second discharge summary of the said Hospital mention that he has taken treatment as inpatient on 30.9.2015 and was discharged on the same day. He was diagnosed for right leg degloving injury. Doctors have followed procedure advancement of flap right knee and discharged on the same day. Ex.P.11/another discharge summary of the said Hospital mentions that petitioner was treated as inpatient on 16.10.2015 and was diagnosed for 18 SCCH - 11 MVC 3975/2015 follow up of degloving injury right leg. Doctor has followed procedure wound debridement + SSG right leg on 16.10.2015. To substantiate that the petitioner has spent amount towards medical expenses has produced Ex.P.73/prescription issued by Satya Sai Hospital for physiotherapy and Ex.P.74/prescriptions issued Hosmat Hospital. He has also produced Ex.P.75/98 pharmacy medical bills to a tune of Rs.55,637/-, Ex.P.76/3 inpatient bills with receipts which is to a tune of Rs.6,21,468/- and Ex.P.77/8 physiotherapy which is to a tune of Rs.95,395/-. Apart from the above PW.2/Dr.Deepu N.K. has produced Ex.P.93/inpatient record of Hosmat Hospital and Ex.P.94/outpatient record of Hosmat Hospital with Ex.P.95/one x-ray. PW.3/Dr.Ajit Benedict Royan has produced Ex.P.96/3 inpatient records of Hosmat Hospital and Ex.P.97/28 OPD bills. In the course of cross- examination of PW.1, 2 and 4 it is denied suggestion that petitioner had not sustained injuries stated above and has not spent amount towards medical expenses. It is denied suggestion that this witness is deposing falsely stating that only Rs.5,55,000/- has been reimbursed by the insurance company and the balance amount has been paid by this 19 SCCH - 11 MVC 3975/2015 witness. It is denied suggestion that the employer of this witness has reimbursed entire medical bills. It is admitted suggestion that there is no seal and signature in Ex.P.77/receipts of Satya Sai Hospital outpatient bill. On perusal of the above three bills which are to a tune of Rs.1,400/- each, they are computer generated bills. It is denied suggestion that this witness has not paid Rs.30,000/- to M/s. CPM ON RENT. It is denied suggestion that this witness has not spent Rs.5,750/- for purchase of ointment, Rs.24,799/- for pressure of garments and Rs.6,942/- for protein powder. Petitioner has produced Ex.P.25 to 70/46 photos and Ex.P.71/CD. Petitioner is present before court and court observed that the right leg of the petitioner is totally damaged and there is name sake leg without muscles and figure. There is removal of muscle from left thigh which is adjusted to the right leg. To substantiate the claim of the petitioner, petitioner has examined Dr.Ajit Benedict Royan, vice president of Hosmat Hospital as PW.4. He has stated in his evidence regarding surgery underwent by the petitioner during first admission, treatment given on second and third admission and as also stated about break up of the 20 SCCH - 11 MVC 3975/2015 medical expenses incurred by the petitioner. She has specifically and categorically stated that by way of insurance only Rs.5,55,000/- is received by the Hospital from insurance company and petitioner has paid Rs.6,21,468/- to their Hospital out of total bill of Rs.11,76,468/-. It is stated on oath that apart from the said inpatient medical expenses petitioner has spent Rs.19,620/- towards outpatient services. The pharmacy bills and physiotherapy bills are extra and are not included in the OPD bills. In her further examination in chief she has produced inpatient record, and outpatient record that are marked as Ex.P.96 and 97. All the above shows the injuries sustained by the petitioner is not only grievous but is also fearsome. Petitioner might not have preserved all the bills to show the exact amount which he has spent towards medical expenses. Taking into consideration the nature of injuries sustained by the petitioner coupled with evidence of doctor and documentary testimony I feel that after excluding amount paid by insurance company petitioner is entitled for compensation of Rs.7,25,000/- towards medical expenses.
21SCCH - 11 MVC 3975/2015
15. Petitioner has produced follow up records but has not produced any document to show that how much amount he has spent towards conveyance, food, nourishment and other incidental charges. The Ex.P.9- 11/3 discharge summaries of Hosmat Hospital mentions that petitioner has taken treatment as inpatient from 30.7.2015 to 4.9.2015 and on 30.9.2015 and on 16.10.2015. Petitioner has taken treatment as inpatient for about 37 days and the nature of injuries sustained by the petitioner certainly calls for follow up treatment. In this regard petitioner has produced physiotherapy bills. In toto petitioner is entitled for compensation of Rs.2,00,000/- towards food, attendant, conveyance, nourishment and incidental charges etc., In all the petitioner is entitled for compensation of Rs.9,25,000/- towards the above said head.
LOSS OF INCOME DURING TREATMENT PERIOD
16. The petitioner has stated in his petition that at the time of accident he was working as Area sales manager at T.E.Connectivity and was earning salary of Rs.1,02,342/- per month. That apart petitioner is also a 22 SCCH - 11 MVC 3975/2015 known badminton player and athlete. It is averred that petitioner has participated in various tournaments and represented Karnataka and national level. It is averred that petitioner was also a badminton coach for part time and was earning Rs.30,000/- per month. Due to the injuries sustained in the said accident the petitioner is bedridden and has suffered loss of income. Petitioner who has got himself examined as PW.1 has re-iterated to the averments made in his petition in affidavit filed by way of examination in chief. In his further examination in chief petitioner has produced Ex.P.12 - 14/pay slips for the month of July to September 2015 issued by T.E.Connectivity, Bangalore. Ex.P.15/loss of privilege leave certificate issued by T.E.Connectivity, Bangalore. Ex.P.16 and 17/two incentive letter, Ex.P.18/salary incentive plan, Ex.P.19/salary certificate issued by i-sports badminton academy, Ex.P.20 - 24/IT returns for the assessment year 2010-2011, 2012-2013, 2013-2014, 2014-2015 and 2015- 2016. Petitioner has also produced Ex.P.78/ certificate issued by national games, Panjab, Ex.P.79/participation certificate issued 4th National games, Ex.P.80 and 81/57 interstate south zone badminton championships at 23 SCCH - 11 MVC 3975/2015 Tirupur. Ex.P.82/certificate issued by Karnataka state national championship, Ex.P.83/Karnataka state inter university 1991, Ex.P.84/participation certificate, Ex.P.85/certificate issued by 52 inter state south zone badminton championships, Ex.P.86-92 are certificates issued by several zones as far as national, state and interstate badminton championships are concerned. It is stated on oath that due to the accident petitioner had to apply for privilege leave from 2.9.2015 to 25.9.2015 for 16 days and incurred loss of Rs.60,329/-. It is stated on oath that petitioner was entitled for sales incentives every year to the extent of minimum 30%. During 2014-15 petitioner had achieved target of 44.14% and earned Rs.4,72,061/-. On account of accidental injuries he has gained incentive of Rs.1,68,312/- instead of Rs.4,72,000/-. It is stated that he had joined services of i-sport Badminton academy on 4.1.2015 could work only for 4 months and he is unable to continue his work on account of accidental injuries. In the course of cross-examination by the learned counsel appearing for first respondent it is denied suggestion that petitioner is deposing falsely by stating that he has sustained loss of income of Rs.6,329/- due to the privilege 24 SCCH - 11 MVC 3975/2015 leave availed by him. It is admitted suggestion that petitioner is still working as Area sales manager in TE connectivity Pvt Ltd., the salary has been increased from January 2016. Petitioner has stated that he has got increment but it is less due to his absence and non- performance. It admitted suggestion that for financial year sales incentives started from 2014 and during 2015 he has worked for 10 months. It is admitted suggestion that petitioner was absent only for 2 months due to accidental injuries. It is denied suggestion that petitioner was not working as badminton coach and was not earning Rs.30,000/- per month. As already discussed rather than looking into medical records the photos produced by the petitioner clearly shows the nature of injuries sustained by the petitioner. Petitioner has admitted that he is still continuing job in TC connectivity but has stated that his performance is poor and he is not able to reach the target. Petitioner has examined Smt.Nagarathna C.K. as PW.3, she is the manager -H.R of TE connectivity India Pvt. Ltd., she has filed affidavit by way of examination in chief and has stated on oath that petitioner is working in the TE connectivity India Pvt. Ltd., and was earning 25 SCCH - 11 MVC 3975/2015 Rs.1,02,342/- per month. That due to the accidental injuries he had applied for privilege leave for 16 days and incurred loss of Rs.60,329/-. Further she has stated that petitioner is entitled to sales incentive as per their company sales incentive plan every year to the extent of minimum 30%. She has stated on oath that during 2014- 15 petitioner had reached the target of 44.14% and had earned Rs.4,72,061/-. After accident he was unable to move about for a period of 6 months as such he could not achieve his target and had reached incentive of 14.3% and could get Rs.1,68,000/- as against minimum of Rs.3,52,921/- for 30%. As such the loss of is Rs.1,84,695/-. In her further examination in chief she has produced Ex.P.12-16 which are pay slip, privilege leave certificate, incentive letter, sales incentive plan issued by TE connectivity.
The nature of injuries sustained by the petitioner calls for rest atleast for 6 months. Thereafter petitioner can do minimum work without bearing weight on his legs. Ex.P.20-24/income tax returns. Petitioner has not examined issuing authority of Ex.P.19/i-sport badminton academy to show that he was doing part time work as 26 SCCH - 11 MVC 3975/2015 badminton coach and was paid Rs.30,000/- per month. Taking all the above facts into consideration coupled with oral and documentary evidence the income of the petitioner per month is taken at Rs.40,000/- being the average loss of incentive, as against minimum incentive of Rs.3,52,921/-. Petitioner is entitled for Rs.2,40,000/- (Rs.40,000/- x 6 months) towards above said head.
LOSS OF FUTURE INCOME ON ACCOUNT OF DISABILITY
17. The petitioner in order to substantiate his case has examined Dr.Deepu N.K as PW.2. She has filed affidavit by way of examination in chief and has stated on oath that recently she has examined the petitioner on 21.5.2016 and the petitioner complained of (1) pain on walking for long distance and inability stand for longer period of time. (2) Repeated swelling of right leg, (3) stiffness of right hip and knee joint, (4) inability to sit, squat on floor, (5) inability to participate badminton in any tournaments. On clinical examination this witness found (1) stiff hip joint and knee joint those are due to fibrosis and loss of muscles. (2) large area of insensate grafted scar extending from groin to knee joint circumferentially. 27 SCCH - 11 MVC 3975/2015 (3) right lower limb and both upper limbs show donor site scars. (4) hypersensate area over knee joint. (5) large 40x20 cm donor site scar on left thigh and 20x7 cm donor scar over right leg both insensate. (6) x-ray shows loss of part of patells and displaced patells showing early signs of arthritis. (7) due to the above condition, the patient will be unable to play badminton or participate in any tournaments. This witness stated disability of right leg, total loss of range of movement, loss of muscle strength at hip joint and knee joint, stability component that is finding difficulty to walk on plain surface, walk on slope, climbing stairs, standing on both legs, standing on the affected leg, squatting on the floor, sitting crossed leg, kneeling, taking turning. This witness has assessed 29.18% total permanent partial disability for whole body. In her further examination in chief this witness has produced 3 inpatient files and one outpatient file, one X-ray the same are marked Ex.P.92 to 95. In the course of cross-examination by the learned counsel appearing respondent No.1 it is admitted suggestion that petitioner is doing the same work which he was doing prior to the accident. This witness has stated that she is personally aware that petitioner is 28 SCCH - 11 MVC 3975/2015 badminton player and athlete. It is denied suggestion that petitioner is not having disability as stated. In this case petitioner has produced ample number of records to show that he is an badminton player and athlete. This court has personally looked into the legs of the petitioner which is shapeless, muscle less and strength less. At the same time it is very awkward and fearsome to see the injuries. At any stretch of imagination even prudent man after seeing the plight of the petitioner can easily say that he cannot play badminton or participate in athlete. Taking into consideration the injuries sustained by the petitioner coupled with evidence of doctor both oral and documentary I am of the considered view that petitioner has sustained 29% whole body disability. As per Ex.P.8/driving licence of petitioner the date of birth is mentioned as 6.12.1972. As per medical records petitioner is aged 43 years at the time of accident. The income of the petitioner is already taken as Rs.1,00,000/- per month. The multiplier to be applied for the age of 43 is
14. Hence the petitioner is entitled for compensation of (Rs.40,000 x 12 x 14 x 29/100) = Rs.19,48,800/-towards the above said head.
29SCCH - 11 MVC 3975/2015
FUTURE MEDICAL EXPENSES
18. Petitioner has stated in his petition that he requires money for future surgery. Dr.Deepu N.K who is examined as PW.2 has stated in his evidence that petitioner needs knee replacement 8 to 10 years down the line. Present cost of the same is Rs.2.75 lakhs. Neither Petitioner nor PW.2 have produced cost of estimation. Taking into consideration the nature of injuries sustained by the petitioner minimum compensation of Rs.2,50,000/- is awarded towards above said head.
DISAPPOINTMENT, DISCOMFORT, LOSS OF JOY, FUN AND AMENITIES
19. Petitioner has met with an accident at the age of 43 years. Petitioner has produced sufficient materials before court to show that he is an badminton player and an athlete. On account of accidental injuries though petitioner can continue his job as Area Sales Manager at TE Connectivity but cannot enjoy his rest of life by playing badminton. The number of records produced in this regard establishes that petitioner is highly interested and keen in teaching badminton. The loss of the joy and amenities which the petitioner had enjoyed by playing 30 SCCH - 11 MVC 3975/2015 badminton cannot be compensated at all. Even otherwise I am of the considered view that the petitioner is entitled for minimum compensation of Rs.2,00,000/- under the above said head.
VEHICLE DAMAGES
20. Petitioner has claimed vehicle damages of Rs.12,000/- and has produced invoice issued by Sunshine Honda Point which is marked as Ex.P.72. Petitioner has not examined the issuing authority of Ex.P.72. Ex.P.6/IMV report mentions that front panel scratched, running board scratched. Taking into consideration the above the petitioner is entitled for minimum compensation of Rs.8,000/- towards above said head.
21. Thus in all the petitioner is entitled for compensation as mentioned hereunder :
1 Pain, shock and agony Rs. 3,00,000/- 2 Medical expenses, conveyance, Rs. 9,25,000/-
attendant charges, food and nourished food.
3 Loss of income during treatment Rs. 2,40,000/-
period 4 Loss of future income on Rs. 19,48,800/-
account of disability 5 Future medical expenses Rs. 2,50,000/-
31SCCH - 11 MVC 3975/2015 6 Disappointment, discomfort, loss Rs. 2,00,000/-
of joy, fund and amenities 7 Vehicle damages Rs. 8,000/-
TOTAL Rs. 38,71,800/-
22. While discussing Issue No.1, I have already come to the conclusion that, accident occurred due to the rash and negligent driving of the lorry bearing Regn.No.AP- 28-U-7659 by its driver. Respondent No.1 being the insurer and respondent No.2 being the owner of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner with interest at the rate of 8% per annum from the date of petition till its realization. Hence this issue is answered partly in the affirmative.
23. ISSUE No.4: In view of the findings given on the above said issues, I proceed to pass the following:
ORDER Petition filed by the petitioner u/s 166 of Motor Vehicles Act is hereby partly allowed with costs.
The petitioner is entitled for compensation of Rs.38,71,800/- with interest at 8% p.a. on 36,21,800/- only (excluding future medical expenses) 32 SCCH - 11 MVC 3975/2015 from the date of petition till realization from respondents No.1 and 2 jointly and severally.
The Respondent No.1 shall deposit the compensation amount within 30 days from the date of this order.
Out of the compensation, 50% of the amount awarded to the petitioner shall be kept in FD for a period of 2 years in any nationalized or schedule Bank and 50% with interest shall be paid to the Petitioner after proper identification.
Advocate fee is fixed at Rs.1,000/-. Office to draw award accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 1st day of June, 2017.) (B.N.SUJATHA) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Yashukumar PW.2 - Dr.Deepu N.K PW.3 - Smt. Nagarathna C.K PW.4 - Dr. Ajith Benedict Royan 33 SCCH - 11 MVC 3975/2015 DOCUMENTS MARKED FOR PETITIONERS: Ex.P.1 - True copy of FIR Ex.P.2 - True copy of complaint Ex.P.3 - True copy of wound certificate Ex.P.4 - True copy of hand sketch map Ex.P.5 - True copy of spot panchanama Ex.P.6 - True copy of IMV report Ex.P.7 - True copy of charge sheet Ex.P.8 - True copy of driving licence Ex.P.9-11 - 3 discharge summaries Ex.P.12-14- Pay slips Ex.P.15 - Loss of privilege leave certificate Ex.P.16&17- Two incentive letter Ex.P.18 - Sales incentive plant Ex.P.19 - Salary certificate Ex.P.20-24 - IT returns Ex.P.25-70 - 46 photographs Ex.P.71 - One C.D. Ex.P.72 - Vehicle repair bills Ex.P.73&74- Prescriptions of Hosmat Hospital Ex.P.75 - 98 medical bills Ex.P.76 - 3 inpatient bills Ex.P.77 - 8 physiotherapy bills Ex.P.78-92 - True copy of participation certificates Ex.P.93 - 7 inpatient record Ex.P.94 - Outpatient follow-up treatment Ex.P.95 - One X-ray Ex.P.96 - 3- Inpatient bills Ex.P.97 - 28 OPD bills 34 SCCH - 11 MVC 3975/2015 WITNESSES EXAMINED FOR RESPONDENTS : - NIL - DOCUMENTS MARKED FOR RESPONDENTS : - NIL - I ADDL.SCJ. & MACT. *SR