Bangalore District Court
Shri K.M.Kumaraswamy vs Cholamandalam Ms General on 21 December, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 21st day of December 2015
M.V.C.No.298/2015
Petitioner Shri K.M.Kumaraswamy,
Son of Late K.M.Madaiah,
Aged about 49 years,
No.20,/2, 3rd "A" Main,
11th Cross, Bapujinagar II Stage,
Bengaluru-560 026.
(Shri R.Ranganath, Advocate)
V/s
Respondents 1. Cholamandalam MS General
Insurance Company Limited,
Rep. Manager, R.O.Office No.9,
Ulsoor road, Bengaluru -560 042.
And also at Dare House, 2nd floor,
N.S.C. Bose Road, Channi-6000
001.
(Policy
No.3379/00892425/0000/01
valid from 1.6.2014 to 31.5.2015)
(Shri
2. Smt. Saleemunnisa,
Wife of Mohammed Ataulla,
Major,
2 SCCH-8 MVC 298/2015
Residing at No.2325/1,
Malavalli Town, Malavalli Taluk,
Mandya District,
Karnataka-571430.
(RC Owner of Tempo Reg. No.KA-
11-A-2786)
(Exparte)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.25,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner said to be the injured in his claim petition has alleged that, on 28.7.2014 at about 5.30 p.m., he was proceeding in his TVS XL bearing No.KA-02-EC- 3318 slowly and cautiously by observing all the traffic rules and regulations along with pillion rider, when they were reached near Mahesh shop of Kodigehalli village, Malavalli taluk, the driver of the tempo 407 bearing registration No.KA-11-A-2786 was came from Mudukutore to 3 SCCH-8 MVC 298/2015 Kadagahalli side in a rash and negligent manner without observing all the traffic rules and regulations dashed against the TVS XL. As a result, they were fell down and sustained grievous injuries. So, immediately he was shifted to Government Hospital, Malavalli, later on she was shifted to Mandya Institute of Medical and Teaching hospital, Mandya, wherein he took the treatment as inpatient. Later on at the advise of the doctor has been shifted to Kempegowda hospital, wherein he took the treatment as inpatient and underwent surgery and took the treatment as inpatient by spending an amount of Rs.4,00,000/-. Due to the accidental injuries, he could not do the work as before and he has took the physiotherapy from 1.9.2014 to 5.11.2014 by spending an amount of Rs.50,000/-.
3. Prior to the accident he was hale and healthy working as a Superintendent at Bhagawan Buddha Homoeopathic Medical College and Hospital by getting monthly salary of Rs.15,000/- and in the Month of April 4 SCCH-8 MVC 298/2015 2014, he has quit the job to start own business for setting up of the Paper Plates and Cups manufacturing unit under the name and style of "M/s Gowthami Paper Plates and Cups" and obtained permission in terms of sanction of credit facility of term loan of Rs.9.75 lakhs from the Bank. Due to the accidental injuries, he was unable to walk properly and he is limping while walking and unable to lift small object due to the shoulder injuries and unable to sit, squat properly, so he lost the income at the rate of Rs.15,000/- and his family members are depending on his income and himself and his family members were put into deep mental shock and agony. The accident in question was taken place on the rash and negligent driving of the driver of the offending vehicle. Thereby, the Belakavadi Police have registered the case against the driver of the tempo in their police station Crime No.101/2014 for the offences punishable u/s 279 and 338 of IPC. The respondent No.1 being the insurer and respondent No.2 5 SCCH-8 MVC 298/2015 being the owner are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondent No.2 did not appear nor file his written statement, as he was placed exparte. The respondent No.1 has appeared through its counsel and filed its written statement in which he has stated that the claim petition filed by the petitioner is not maintainable in law or on facts and he has admitted about the issuance of the policy in respect of offending vehicle infavour of the respondent No.2 and as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same and the owner of the offending vehicle has entrusted the vehicle to the person who was not holding valid and effective driving license, so he has contravened the terms and conditions of the policy and he is not liable to pay the compensation and either the owner of the offending vehicle nor the jurisdictional police have not complied the 6 SCCH-8 MVC 298/2015 mandatory provisions under Section 134(C) and 158(6) of the M.V. Act in furnishing better particulars and he has alleged that the accident in question was taken place on the rash and negligent riding of the rider of the TVS XL i.e., the petitioner. So, the petitioner is responsible for the alleged accident and not the alleged goods tempo driver and there is a contributory negligence on both the vehicle drivers and the rider of the TVS XL was not holding valid and effective driving license and he has denied that on 28.7.2014 at about 5.30 p.m. the petitioner was proceeding in a TVS XL bearing No.KA-02-EC-3318 slowly and cautiously by observing all the traffic rules and regulations along with his friend, when they were reached near Kodagahalli village, Malavalli Taluk, the driver of the tempo came with high speed in a rash and negligent manner without observing the traffic rules and regulations dashed against the TVS XL. As a result, the petitioner was fell down and sustained injuries and took the treatment by 7 SCCH-8 MVC 298/2015 spending huge amount and he has denied the age, avocation and income of the petitioner and prays for reject the claim petition.
5. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in wound certificate, in a road traffic accident on 28.7.2014 at about 5.30 p.m. near Mahesh's shop, Kodagahalli, Malavalli Taluk, Mandya, due to the rash and negligent driving of the driver of the tempo (407) bearing registration No.KA-11-A-2786?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
6. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P24 and he has examined three more 8 SCCH-8 MVC 298/2015 witnesses on his behalf as PW2 to PW4 and got marked the documents as Ex.P25 Ex.P31. The respondent has examined one witness in its favour as RW1 and got marked the document as Ex.R1.
7. Heard arguments on both side.
8. My finding on the above issues are as under:
Issue No.1: Affirmative
Issue No.2: Partly affirmative
Issue No.3: As per the final order
for the following.
REASONS
9. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that on 28.7.2014 at about 5.30 p.m. himself and one Prasannakumar of Kodagahalli were proceeding in a TVS XL bearing No.KA- 02-EC-3318 slowly and cautiously by observing all the traffic rules and regulations, the driver of the tempo has 9 SCCH-8 MVC 298/2015 drove the same in a rash and negligent manner without observing the traffic rules and regulations dashed against TVS XL. As a result, he has sustained grievous injuries. So, immediately he was shifted to Malavalli Government Hospital, wherein he took the first aid treatment later on he was shifted to Mandya Institute of Medical and Teaching Hospitals, Mandya and took the treatment as inpatient by spending huge amount. Thereby, he has filed the instant claim petition against the respondents.
10. The petitioner in order to prove his case has filed his affidavit as his chief-examination as PW1, in which he has stated that on 28.7.2014 at about 5.30 p.m., himself and his friend were proceeding in a TVS XL bearing No.KA- 02-EC-3318 slowly and cautiously by observing all the traffic rules and regulations, when they were reached near Mahesh shop of Kodagahalli village, Mavalalli taluk, the driver of the tempo 407 bearing registration No.KA-11-A- 2786 was came from Mudukutore to Kadagahalli side in a 10 SCCH-8 MVC 298/2015 rash and negligent manner without observing all the traffic rules and regulations dashed against the TVS XL. As a result, they were fell down and sustained grievous injuries. So, immediately he was shifted to Government Hospital, Malavalli, later on, he was shifted to Mandya Institute of Medical and Teaching hospital, Mandya, wherein he took the treatment as inpatient and again at the advise of the doctor he has been shifted to Kempegowda hospital, wherein he took the treatment as inpatient and underwent surgery and took the treatment as inpatient by spending an amount of Rs.4,00,000/-. Due to the accidental injuries he could not do the work as before and he has took the physiotherapy from 1.9.2014 to 5.11.2014 by spending an amount of Rs.50,000/-. The accident in question was taken place on the rash and negligent driving of the driver of the tempo. Thereby, the Belakavadi Police have registered the case against driver of the Tempo in their police station Crime No.101/2014 for the offences punishable u/s 279 11 SCCH-8 MVC 298/2015 and 338 of IPC. The PW1 in his cross-examination has admitted that himself and one Prasannakumar were proceeding as a rider and pillion rider in a TVS Xl, which belongs to one Lingaraju and he was the rider of the TVS XL holding valid and effective driving license, but it was misplaced in the accident and he has denied that as on the date of alleged accident he was not holding valid and effective driving license, so, he lost the control over the vehicle since he was carrying 50 Kgs of Manure in the said TVS XL along with pillion rider. Thereby both were fell down from the TVS XL and sustained injuries. The offending vehicle was not at all caused any accident to the TVS XL and they have filed false complaint against the offending vehicle driver in order to get the compensation.
11. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P31. Ex.P1 is the information filed by the very petitioner in which he has stated that on 28.7.2014 he had been to his 12 SCCH-8 MVC 298/2015 native place from Bengaluru, himself and one Prasannakumar were proceeding towards Mudanahalli to purchase manure, while returning back to their village at about 5.30 p.m. he was the rider of the TVS XL, when they were reached near Mahesh's Shop, the driver of the tempo bearing No.KA11-A-2786 was came from opposite direction in a rash and negligent manner without observing the traffic rules and regulations dashed against the TVS XL. Due to the said impact, they were fell down and he has sustained grievous injuries. So, publics who were gathered on the spot were took him to the Malavalli Government hospital through 108 ambulance. So, at the same time as per the advice of the doctor he has been shifted to Mandya District Hospital and took the treatment, again he was shifted to Kempe Gowda hospital, Bengaluru and took the treatment as inpatient. The accident was occurred on account of rash and negligent driving of the offending vehicle driver. So, based on the information Belakavadi 13 SCCH-8 MVC 298/2015 police have registered the case against the driver of the tempo in their police station Cr.No.101/2014 for the offences punishable u/s 279, 337 of IPC and S. 187 of IMV Act.
12.The learned counsel for the respondent No.1 has cross-examined the PW1. But nothing is elicited to disbelieve his evidence. Though, he has suggested the PW1 that he was proceeding in a TVS XL with 50 Kgs of Manure along with pillion rider, so, he lost the balance over the TVS XL and fell down and sustained injuries and the offending vehicle was not at all caused the accident, for which he has denied the same. But the reasons best known to the respondent No.1 has not examined offending vehicle driver nor examined the persons who are cited in the charge sheet as eye witnesses to prove that the offending vehicle was not at all involved in the accident and the petitioner himself was fallen from the TVS XL as he has lost the control since he was carrying 50 kgs of 14 SCCH-8 MVC 298/2015 manure. In the absence of the materials from the respondent, it is very difficult to believe that the petitioner was proceeding in a TVS XL with 50 kgs of Manure along with pillion rider, so he lost the control over the vehicle and fell down and sustained grievous injuries and due to his negligence the accident was occurred. On the other hand, Ex.P1 & Ex.P2 are reflects that the accident in question was occurred due to the rash and negligent driving of the driver of the offending vehicle. Ex.P3 is the panchanama drawn by the I.O. clearly reflects that the accident was taken place on the extreme right side of the road, though there is a sufficient space to avoid the accident, but the reasons best known to the offending vehicle driver has not taken minimum care to avoid the accident. If at all, he has taken minimum care, he would have avoid the accident. So, on his own negligence the accident was occurred and the petitioner has sustained injuries. The learned counsel for the respondent No.1 has much argued that the 15 SCCH-8 MVC 298/2015 petitioner in colluding with the police have falsely implicated the offending vehicle, though it was not caused the accident. But the reasons best known to the respondent No.1 has not explained how the damages was caused to the offending vehicle as shown in Ex.P4. If really the offending vehicle was not at all involved in the accident he would have examined the offending vehicle driver nor produced the documents to show that how the damages was caused to the offending vehicle as shown in the Ex.P4. So, in the absence of the materials on record, it is clear that the offending vehicle was caused the accident that is the reason why, the damages were caused as appeared in Ex.P4. Ex.P6 is the final report clearly reflects that the I.O. after conducting investigation has charge sheeted against the offending vehicle driver on the ground that the accident was occurred on account of rash and negligent driving of the offending vehicle driver. Ex.P7 is the criminal court order sheet reflects that the offending vehicle driver has 16 SCCH-8 MVC 298/2015 appeared in the criminal court and pleads guilty and paid the fine. Ex.P5 is the wound certificate reflects that the petitioner has sustained grievous injuries in a road traffic accident said to have been taken place on 28.7.2014. Ex.P8 and Ex.P9 are reflects that the petitioner while proceeding in a TVS XL the offending vehicle driver has dashed against the TVS XL, as a result, the petitioner and the pillion were fell down and sustained grievous injuries. Ex.P10 to Ex.P31 are reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident and underwent surgery and implants in situ. So, the documents marked as Ex.P1 to Ex.P31 are coupled with the oral evidence of PW1.
13. The RW1 being the Medical Officer, General Hospital, Malavalli in his evidence has clearly stated that the petitioner has met with an accident and got admitted to the hospital. Ex.R1 is clearly reflects that the petitioner soon after the accident has got admitted to the hospital 17 SCCH-8 MVC 298/2015 and took the treatment. So, the evidence of RW1 instead of helping the respondent, it helps the petitioner to show that the accident was taken place on account of rash and negligent driving of the offending vehicle driver. So, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the tempo driver. Hence, I answer this issue in the affirmative.
14. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that on 28.7.2014 himself and one Prasannakumar were proceeding in a TVS XL near Kodagahalli village, the driver of the tempo has drove the same in a rash and negligent manner dashed against the TVS XL, as a result he has sustained the following injuries;
1)Displaced fracture of mid shaft of left femur and fracture neck of left femur
2)Fracture greater tubersity of left humerus 18 SCCH-8 MVC 298/2015
3)Tenderness and swelling present over left shoulder
15. So, immediately he was shifted to Government Hospital, Mandya and took the treatment and later on he was shifted to MIMS hospital of Mandya, wherein he took the treatment as inpatient and again he was shifted to Kempegowda Hospital, wherein he took the treatment as an inpatient and underwent surgery and he was discharged from the hospital with an advise to take the follow-up treatment. As per the advice of the doctor again he got admitted to the hospital on 7.11.2014 and took the treatment as inpatient and he was underwent surgery for proximal screw removal from sinus nil in site and discharged on 18.11.2014 with an advise for follow-up treatment. So, he took the treatment for a period of 41 days by spending an amount of Rs.4,00,000/- and doctor has advised for physiotherapy and he took the 19 SCCH-8 MVC 298/2015 physiotherapy by spending an amount of Rs.66,850/-. Inspite of best treatment he could not come to normal position, still he is facing difficulties.
16.Prior to the accident he was hale and healthy working as a Superintendent at Bhagavan Buddha Homeopathy Medical College and Hospital, by getting salary of Rs.15,000/- per month. In the month of April 2014 he had quit the job to start own business for setting up the Paper Plates and Cups manufacturing unit under the name and style of M/s Gowthami Paper Plates and Cups. Due to the accidental injuries he could not start his business. So, he lost the income due to the accidental injuries and he is unable to walk properly and he is limping while walking, unable to sit, squat properly and unable to use the Indian toilet and unable to fold his leg properly as earlier. The PW1 in his cross-examination has admitted that soon after the accident has got admitted to the Mandya Government hospital and took the first aid treatment, later on he took 20 SCCH-8 MVC 298/2015 the treatment at Kempegowda hospital and he was underwent surgery and he has denied that he was not underwent any surgery and the injuries sustained by him are heal up and implants are already removed and he has denied that he has created the medical bills and physiotherapy bill in order to get the compensation and he has admitted that he has not produced any documents to show that prior to the accident he was working as a superintendent by getting monthly income of Rs.15,000/-. But he has admitted that before the accident about 6-7 months back, he was quit the job as he has applied loan in the bank. At the time of accident he was not working at Bhagawan Buddha Homeopathy Medical College and Hospital and he has denied that he has not sustained any financial loss due to the accidental injuries and he has admitted that Sl.No.6 & 12 marked as Ex.P23 are one and the same.
21 SCCH-8 MVC 298/2015
17. The PW2 being the Orthopaedic Surgeon and treated doctor in his evidence has stated that the petitioner has met with an accident said to have been taken place on 28.7.2014, as he has sustained the following injuries;
1) Post traumatic fracture of left neck and shaft of femur with foot drop
2) Fracture left proximal humerus
18. So, the above injuries are grievous in nature. Thus, he was underwent surgery for CRIF with SIRUS on 4.8.2014 and conservative management left shoulder and he was discharged on 28.8.2014 with an advice to take medicines and left shoulder immobilizer and physiotherapy for left shoulder and left foot drop and again he was admitted on 7.11.2014 with UHID No.664049 for proximal screw removal done on 10.11.2014 and discharged on 18.11.2014 and he took the follow-up treatment and recently he has examined the petitioner on 8.9.2015 and found the following difficulties facing by the petitioner; 22 SCCH-8 MVC 298/2015
a) limp while walk in left lower limb.
b) Pain in left hip, left knee, left ankle
c)Difficulty to climbing stairs, sitting down on floor, squatting cross leg
d) difficulty to stand for 20 minutes, walk for half kilometer
e) Pain in left shoulder
f)Difficulty lifting a bucket of water, over head objects, tying dhoti, battening shirt
19. On clinical examination found the following;
a) Operative scar left hip and thigh
b) Tenderness present left hip and trochantric region and left thigh
c) Swelling feet left thigh bony hand about 3x 5 cms middle 1/3rd
d) Shortening of left lower limbs by 1.5 cms
e) Wasting of muscle left thigh calf by 1 cm
f) Right lower limb 92 cms left lower limb 90.5 cm
g) Muscle wasting of left thigh and calf by 1 cm
20. So, the petitioner has sustained permanent physical disability of whole body to an extent of left upper 23 SCCH-8 MVC 298/2015 limb+left lower limb=5.16+15.5=20.66%. So, one more surgery is required for removal of implants it may costs of Rs.42,000/- to Rs.45,000/-. PW2 in his cross-examination has admitted that he has treated the petitioner as one of the doctor in the team, but his name is not appeared in the case sheet. After discharge, the petitioner has took the treatment as physiotherapy for that he has produced the case sheet and at the time of discharge they have advised the petitioner for physiotherapy, same is not mentioned in the case sheet. Now the fracture is united and the petitioner has not underwent any surgery in respect of shoulder fracture, for which he took the conservative treatment. But he was underwent left knee operation and implants in situ and there is shortening in left leg for 1½ cms and he has admitted that the petitioner has not sustained any fracture of knee nor ankle and he has denied that the petitioner is not facing any difficulties or stability nor mobility due to the accidental injuries and he has 24 SCCH-8 MVC 298/2015 denied that as per the guidelines, the disability is to be considered only after removal of implants and he has denied that after removal of implants the petitioner is not facing any difficulties and he has denied that he has stated more disability to help the petitioner to get the more compensation.
21. The PW3 being the physiotherapist in his evidence has stated that the petitioner has met with an accident said to have been taken place on 28.7.2014 at about 5.00 p.m. and after orthopaedic surgery treatment he was referred for physiotherapy treatment. So, the petitioner has took the physiotherapy treatment due to the accidental injuries and he took the physiotherapy from 1.9.2014 to 5.11.2014 and again from 20.11.2014 to 25.4.2015. PW3 in his cross- examination has admitted that his name is not appeared in the medical records to show that the petitioner has took the physiotherapy from him. But he has stated that he was one of the team doctor in the doctors team. He was treated 25 SCCH-8 MVC 298/2015 the petitioner and took the bill from the petitioner and he has denied that he has created the bill and placed it before the court in order to help the petitioner.
22. The PW4 who is said to be the attendant of the petitioner in his evidence has stated that the petitioner has met with an accident said to have been taken place on 28.7.2014. Due to the accidental injuries his movements was restricted and unable to do day-to-day work for six months. So, he was engaged him as atendant from 1.8.2014 to 31.1.12015 for which the petitioner has paid Rs.6,000/- per month. In all he has received Rs.36,000/-. PW4 in his cross-examination has admitted that he has not produced any document to show that the petitioner was appointed him as attendant on monthly Rs.6,000/- for six months and he has admitted that he do not know the members of the family who are residing with the petitioner. But he has seen the house which belongs to the petitioner and he has denied that he was not attendant of the 26 SCCH-8 MVC 298/2015 petitioner and he has deposed falsely with an intention to help the petitioner to get the more compensation.
23. The PW1 being the injured in his evidence has clearly stated that he has sustained fracture as shown in the wound certificate and underwent surgery. Inspite of best treatment he could not come to normal position, still he is facing difficulties in his day-to-day life. PW2 & PW3 being the orthopaedic surgeon and physiotherapist have clearly stated about the injuries sustained by the petitioner in a road traffic accident and they have also stated about his difficulties in his day-to-day life. So, the evidence of PW2 & 3 corroborate the evidence of PW1. So, one thing is clear from the oral and documentary evidence that the petitioner has sustained fracture and underwent surgery, inspite of best treatment he could not come to normal position, still he is facing difficulties. Ex.P5 is the wound certificate issued by the Kempegowda Institute of Medical Sciences Hospital and Research Centre, Benalguru clearly 27 SCCH-8 MVC 298/2015 reflects that the petitioner has sustained the following injuries;
1) Tenderness and swelling present over middle 1/3rd of left thigh, abnormal mobility
2) Tenderness and swelling present over left shoulder X-ray reveals that left femur and left shoulder shows, displaced fracture of mid shaft of left femur and fracture neck of left femur and fracture great tubercity of left humerus
24. So, the above said injuries are grievous in nature. Ex.P11 is the discharge summary clearly reflects that the petitioner soon after the accident has got admitted to the KIMS hospital and took the treatment as an inpatient from 28.7.2014 to 29.7.2014 for the injuries sustained by him in a road traffic accident. Ex.P12 is the discharge summary of KIMS hospital in which it is clear that the petitioner has got admitted to the KIMS hospital on 29.7.2014 and took the treatment till 28.8.2014 and underwent surgery. Ex.P13 is 28 SCCH-8 MVC 298/2015 the discharge summary in which it is clear that again the petitioner has got admitted to the KIMS hospital on 7.11.2014 and took the treatment till 18.11.2014 and underwent surgery. So, Ex.P11 to Ex.P13 are reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident and underwent surgery and took the treatment for a period of 44 days. Ex.P14 clearly reflects that the petitioner apart from the treatment he was also taken treatment of physiotherapy from 1.9.2014 to 5.9.2014 and 20.11.2014 to 25.4.2014 by paying Rs.350/- per day. Ex.P16 is the ID card issued by the Bhagwan Buddha Homeopathic Medical College and Hospital, but in his chief-examination itself the PW1 has admitted that in the month of April 2014 he had quit the job to start own business for setting up of Paper Plates and Cups manufacturing unit. Therefore, as on the date of alleged accident itself he was not working as superintendent in the said hospital. So, it cannot be taken 29 SCCH-8 MVC 298/2015 into consideration. Ex.P21 is reflects that the petitioner has took the treatment in connection of the injuries sustained by him as outpatient. Ex.P22 is reflects that the petitioner has took the ambulance for his treatment from his house to the hospital. Ex.P23 reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Ex.P24 to Ex.P31 are reflects that the petitioner has took the treatment as inpatient almost for a period of 44 days and he was underwent surgery and implants in situ. So considering the injuries sustained by the petitioner in a road traffic accident and the evidence of PW1 to PW4 as well as duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture of mid shaft of left 30 SCCH-8 MVC 298/2015 femur and fracture of neck of left femur and fracture of greater tubersity of left humerus. So, he was underwent surgery and took the treatment as inpatient for a period of 44 days and underwent surgery, inspite of best treatment he could not come to normal position, still he is facing difficulties. PW2 & PW3 being the orthopaedic surgeon and physiotherapist in their evidence have clearly stated about the treatment taken by the petitioner as inpatient and outpatient for the injuries sustained by him in a road traffic accident. So, considering the evidence of the PW1 to PW3 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.60,000/- for the above head, it will meet the ends of justice. Hence, Rs.60,000/- is awarded for the above head.
31 SCCH-8 MVC 298/2015
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has clearly stated that he was working as a Superintendent at Bhagavan Buddha Homeopathy Medical College and Hospital by getting monthly salary of Rs.15,000/-. But he had quit the job to start own business for setting up the Paper Plates and Cups manufacturing unit under the name and style of 'M/s Gowthami Paper Plates and Cups"\' in the month of April 2014. The accident was occurred on 28.7.2014. So, one thing is clear from the oral and documentary evidence that as on the date of alleged accident he was not working as a Superintendent at Bhagawan Buddha Homeopathic Medical College and Hospital. But in his evidence he has stated that he had quit the job to start own business of Paper Plates and Cups manufacturing unit under the name and style of M/s Gowthami Paper Plates and Cups. Due to the accidental injuries he could not do his business, so he has sustained 32 SCCH-8 MVC 298/2015 loss of income of Rs.15,000/- to Rs.20,000/- per month and the learned counsel for the petitioner has drawn the court attention on the documents marked as Ex.P17 to Ex.P19. But the reasons best known to the petitioner has not produced any materials on record to show that he has lost the monthly income of Rs.15,000/-to Rs.20,000/-. If that is so, the matter would have different. Except filing of Ex.P17 to Ex.P19 it does not mean that the petitioner was earning a sum of Rs.15,000/- to Rs.20,000/- per month in case he starts his business and the said counsel has drawn the court attention on Ex.P15 stating that the petitioner is residing in the rented house by paying monthly rent of Rs.3,000/- and requested that the Court has to consider the surrounding evidence of the petitioner to consider the income of the petitioner merely on the ground that the petitioner has not produced direct evidence about the income, it does not mean that the petitioner is not having income of Rs.15,000/- to Rs.20,000/-. It is an admitted 33 SCCH-8 MVC 298/2015 fact that the petitioner has not produced any documents to show that prior to the accident he was getting monthly income of Rs.15,000/- as alleged in the claim petition.
Except Ex.P15 to Ex.P19, it does not mean that the petitioner was earning a sum of Rs.15,000/- to Rs.20,000/- per month in case he starts the business. So, considering the age of the petitioner, skill and present life condition, it is just and necessary to consider the monthly notional income of Rs.7,000/- it will meet the ends of justice. Ex.P5 is the wound certificate clearly reflects that the petitioner has sustained grievous injuries. Ex.P11 to Ex.P13 and Ex.P26 are reflects that the petitioner has sustained the grievous injuries and underwent surgery and implants in situ and took the treatment as an inpatient almost for a period of 44 days. So, considering the injuries sustained by the petitioner and the duration of treatment as inpatient and outpatient he might have lost income for a period of 34 SCCH-8 MVC 298/2015 four months. So four months income comes to Rs.28,000/- . So Rs.28,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the injuries in a road traffic accident and took the treatment as an inpatient and underwent surgery by spending huge amount of Rs.4,00,000/- towards treatment and incidental charges and he has also spent Rs.66,850/- towards physiotherapy and he has possessing the medical bills of Rs.1,46,047/- and Rs.66,850/- which was spent for physiotherapy. In total Rs.2,12,897/-. The learned counsel for the respondent while cross-examination of PW1 has disputed the medical bills and physiotherapy bills placed on record on the ground that the petitioner has created the medical bills and physiotherapy in order to get the compensation. But the PW1 in his cross-examination has admitted that Sl.No.6 & 12 marked in Ex.P23 are one and the same. So, one thing 35 SCCH-8 MVC 298/2015 is clear from the admission of the PW1 that the amount shown in the Sl.No.6 & 12 marked as Ex.P23 are one and the same. So, one bill amount has to be deducted from the medical bill amount of Rs.900/-. So, if Rs.900/- is deducted out of the medical bills amount of Rs.1,46,047/- it comes to Rs.1,45,147/-. Though the learned counsel for the respondent has disputed the other medical bills and physiotherapy bills, but PW3 being the physiotherapist has clearly stated that the petitioner has took the physiotherapy. So, the documents marked as Ex.P23, clearly reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident and underwent physiotherapy. The respondent has not placed any materials on record to show that the medical bills and physiotherapy bills are created nor fabricated in order to get the compensation. In the absence of the materials, it is clear that the petitioner has took the treatment in connection of the injuries sustained by him in 36 SCCH-8 MVC 298/2015 a road traffic accident. Therefore, Rs.2,11,997/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture of mid shaft of left femur and fracture neck of left femur and fracture greater tubersity of left humerus. So, he was underwent and implants in situ. Inspite of best treatment he could not come to normal position.
PW2 being the orthopaedic surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. According to him the petitioner has sustained whole body disability to an extent of 20.66%. But in his cross-examination has admitted that the fracture is united. So, considering the evidence of the PW1 and PW2 and the medical records and the injuries sustained by the petitioner and duration of treatment as well as his avocation, it is just and necessary to consider 37 SCCH-8 MVC 298/2015 the disability of 13% of the whole body instead of 20.66%, it will meet the ends of justice. So, his income is already considered as Rs.7,000/- per month. Ex.P5 and Ex.P11 to Ex.P13 and Ex.P26 are reflects that as on the date of alleged accident the deceased was aged about 49 years. Ex.P20 is the Adhar card reflects that the petitioner date of birth has been shown in the year 1965. The accident was occurred on 28.7.2014. So, if the date of birth has been taken into consideration as shown in Ex.P20, as on the date of alleged accident the petitioner was aged about 49 years. Therefore, the petitioner age is taken into consideration as 49 years as on the date of the alleged accident. So, by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., in 2009 ACJ 1298 the multiplier applicable is 13. So, the loss of future earning is works out as under;
Rs.7,000X12X13X13/100=Rs.1,41,960/-. 38 SCCH-8 MVC 298/2015 Hence, the petitioner is entitled for Rs.1,41,960/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The learned counsel for the petitioner in his arguments has submitted that the petitioner has sustained grievous injuries and underwent surgery. So, he was appointed PW4 as an attendant. PW4 in his cross- examination has pleaded ignorance about the family members of the petitioner and residential address of the petitioner. So, it is clear that the petitioner was not appointed the PW4 as an attendant. If at all the petitioner was appointed the PW4 as an attendant from 1.8.2014 to 31.1.2015 he might have knowledge of the family members and the address of the petitioner. But the reasons best known to him, in his cross-examination has pleaded ignorance about the address and the family members of the 39 SCCH-8 MVC 298/2015 petitioner. So, it is clear that the petitioner has not appointed the PW4 as an attendant, in order to get more compensation he has been examined the PW4. But his evidence will not help the petitioner to get the compensation as sought by the petitioner. It is an admitted fact that the petitioner has sustained grievous injuries and underwent surgery and took the treatment as inpatient almost 44 days and he has also took the treatment as outpatient. So, considering the oral and documentary evidence on record, it is just and necessary to grant Rs.40,000/- it will meet the ends of justice. So Rs.40,000/-
is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and implants are in situ. The PW2 being the Orthopaedic Surgeon in his evidence has stated that the petitioner has sustained fracture, so, he was underwent 40 SCCH-8 MVC 298/2015 surgery implants in situ. So, one more surgery is required for removal of implants and it may cost of Rs.40,000/- to Rs.45,000/-. So considering the injuries sustained by him in a road traffic accident and the evidence of the PW1 and PW2, it is just and necessary to grant Rs.15,000/- for the above head, it will meet the ends of justice. So, Rs.15,000/- is granted for the above head.
25. Thus the total award stands as follows:
1.Pain and suffering Rs. 60,000-00
2.Loss of income during laid Rs. 28,000-00 up period
3.Medical bills Rs.2,11,997-00
4.Loss of future earning Rs.1,41,960-00
5.Loss of amenities, Rs. 40,000-00 conveyance, food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 15,000-00 Total Rs.4,96,957-00
26. The learned counsel for the respondent No.1 in his arguments has submitted that there is a contributory negligence on the part of the rider of the TVS XL, since he was not holding driving license to ride the TVS XL and the 41 SCCH-8 MVC 298/2015 accident was occurred on his own negligence, since the petitioner has contributed the negligence for the cause of accident as he was carrying manure of 50 kgs in the TVS XL. So, he lost the balance and fell down and sustained grievous injuries and drawn the court attention on the judgement of the Hon'ble High Court passed in MFA 13284/2008 in between Ramalingappa Vs. Shivarao and others. On careful perusal of the aid decision, in the said decision the claimant has filed the appeal against the Tribunal awarded for enhancement of compensation and the questioned for 25% negligence attributed to him. His lordship upheld the finding of the Tribunal on the ground that the claimant did not possess driving license to drive the vehicle Hence, negligence was held at 25% on the claimant and the negligence of the driver of the lorry held at 75%.42 SCCH-8 MVC 298/2015
27.The learned counsel for the petitioner in his arguments has submitted that the person driving the vehicle without license same by itself may not lead to finding of negligence as regards the accidents and drawn the Court attention on the judgement of the Hon'ble Supreme Court reported in 2008 AIR SCW 3981 in between Sudhir Kumar Rana Vs. Surinder Singh and others, which reads like thus;
(B) Motor Vehicles Act (59 of 1988), S. 168---Accident--Claim for compensation--- Negligence--Person driving vehicle without license---Same by itself may not lead to finding of negligence as regards accidents-- No finding of fact arrived at that claimant was driving two wheeler rashly and negligently when met with accident with mini-truck---Thus, only because he was not having a license, he could not be held to be guilty of contributory negligence.
43 SCCH-8 MVC 298/2015
28.In the above said decision their lordship held that the person driving the vehicle without license itself may not lead to finding of negligence as regards the accident. No finding of fact arrived that claimant was driving the vehicle rashly and negligently when met with an accident with mini-truck. So, because of not having license, he could not be held to be guilty of contributory negligence.
29.In the instant case the respondent No.1 has taken up the contention that the petitioner was not holding valid and effective driving license to ride the TVS XL. So, I do respect to the decision of the learned counsel for the respondent No.1, but inview of the decision of the Hon'ble Supreme Court relied by the petitioner, it is clear that mere non-holding of the license by the claimant could not be held to be guilty of the contributory negligence. Therefore, the decision relied by the learned counsel for the petitioner is directly applicable to the case on hand. 44 SCCH-8 MVC 298/2015
30.The learned counsel for the respondent No.1 in his arguments has submitted that the alleged vehicle has not involved in the accident. But the petitioner has falsely implicated the offending vehicle in order to get the compensation and the said counsel has drawn the court attention on the judgement of the Hon'ble High Court reported in ILR 2009 KAR 3562 in between Veerappa and Another Vs. Siddappa and another. On careful perusal of the said decision, in the said decision, the accident was taken place on 26.6.2001 the injured was died on 28.6.2001. No complaint was lodged by the father of the injured setting out the case as pleaded. According to him he went to lodge a complaint on 28.8.2001, they refused to receive the complaint. Therefore, he lodged a private complaint on 31.8.2001. Earlier FIR, charge sheet are all suppressed both by the police and the claimant. The vehicle involved in the accident was never seized by the police. The truth came out during the investigation by the 45 SCCH-8 MVC 298/2015 insurer. So, their lordship held that 'Fraud and Justice Never Dwell Together'.
31.In the instant case RW1 is the witness of the respondent No.1 has produced the document marked as Ex.R1, in which it is clear about the involvement of the vehicle and the injuries sustained by the petitioner in a road traffic accident said to have been taken place on 28.7.2014. Even the police records and oral evidence reflects about the involvement of the vehicle. Therefore, I do respect to the decision relied by the learned counsel for the respondent No.1, but the facts and circumstances of the above case and the case on hand are different. The learned counsel for the respondent has drawn the court attention on the judgment of the Hon'ble High Court reported in 2000 KAR 3443 in between United India Insurance Co.Ltd. vs. D.C.Rajanna and Another, which reads like thus;
46 SCCH-8 MVC 298/2015
Motor Vehicles Act, 1988 -Section 168--
Compensation for " Loss of future Earnings"
can be awarded in case where it is shown that the claimant has, in fact, suffered such a loss and not otherwise.
On careful perusal of the said decision in the said decision his lordship held that the compensation for loss of future earning can be awarded in case where it is shown that the claimant has in fact, suffered such a loss and not otherwise.
32.In the said judgment the injured working at Deputy Manager of HMT and no evidence to show that his wages has been reduced or increment has been stopped or removed from the service.
33. But in the instant case, it is not the case of the petitioner that he has been continued in the earlier work which he had worked as Superintendent. If that is so, the matter would have different. The petitioner himself in his 47 SCCH-8 MVC 298/2015 claim petition has clearly stated that he has quit the job in the month of April 2014 itself and it is not the case of the respondent that the petitioner has been continued as superintendent in the same hospital. If that is so, the matter would have different. Therefore, I do respect to the decision relied by the respondent No.1, the facts and circumstances of the above case and the case on hand are different.
34.The respondent No.1 has taken up the contention that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same. But the reasons best known to the respondent No.1 has not placed any materials on record to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving license and moreover the respondent No.1 has not examined the concerned authority either RTO or 48 SCCH-8 MVC 298/2015 ARTO to substantiate his contention that the driver was not holding valid and effective driving license and Ex.P6 is the final report filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all the driver of the offending vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So on record there is no material to show that the offending vehicle rider was not holding valid and effective driving licence as on the date of the alleged accident.
35.The respondent No.1 in its written statement has admitted about the issuance of the policy in respect of the offending vehicle infavour of respondent No.2. But he has not shown either the policy number nor its validity. But whereas the petitioner in the cause title of the petition, 49 SCCH-8 MVC 298/2015 itself has shown the policy number and its validity from 1.6.2014 to 31.5.2015. But the reasons best known to the respondent No.1 has not denied the policy number and its validity as shown in the cause title. So non-denial of the policy number or its validity as shown in the cause title it is clear that the policy was valid as on the date of alleged accident as the accident in question was occurred on 28.7.2014. So, one thing is clear that as on the date of the alleged accident the policy was in existence and the driver of the offending vehicle was also holding valid and effective driving license. So, the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.1 is liable to pay the compensation to the petitioner with interest at the rate of 8% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative.50 SCCH-8 MVC 298/2015
36. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.4,96,957/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The respondents are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 being the insurer shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of 51 SCCH-8 MVC 298/2015 his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 21st day of December 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Shri K.M.Kumaraswamy 4.8.2015
PW2 Dr.Ravish V.N. 16.9.2015
52 SCCH-8 MVC 298/2015
PW3 Dr.Sudin Maharjan 23.9.2015
PW4 Shri Gangadhar 23.9.2015
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint
Ex.P2 True copy of FIR
Ex.P3 True copy of Spot Mahazar
Ex.P4 True copy of IMV report
Ex.P5 True copy of Wound Certificate
Ex.P6 True copy of Charge sheet
Ex.P7 CC No.1480/2014 certified copy of order
sheet
Ex.P8 Statement of Chowdaiah
Ex.P9 Statement of Mahadevaswamy
Ex.P10 Document pertains to KIMS hospital
Ex.P11 Discharge summary
Ex.P12 Discharge summary
Ex.P13 Discharge summary
Ex.P14 Document pertains to physiotherapy
Ex.P15 Rent agreement
Ex.P16 Identity card
Ex.P17 Document relating to Industries and
Commerce
53 SCCH-8 MVC 298/2015
Ex.P18 Application
Ex.P19 Acknowledgement issued by Directorate of
Industries and Commerce
Ex.P20 Adhar card
Ex.P21 Outpatient record
Ex.P22 Ambulance bills
Ex.P23 Medical bills
Ex.P24 Prescriptions
Ex.P25 Advance payment receipts
Ex.P26 Case sheet
Ex.P27 Case sheet
Ex.P28 OPD card
Ex.P29 Disability certificate
Ex.P30 Disability certificate
Ex.P31 X-ray films
List of the witnesses examined on behalf of respondents:
RW1 Shri Veenth B.R. 19.11.2015 List of the documents marked on behalf of respondents:
Ex.R1 MLC extract
(P.J. Somashekar),
XII Addl. Judge-Member, MACT,
Bangalore.