Bangalore District Court
Sri Abhishek Gowda K.S vs M/S.Samruddhi Enterprises on 2 July, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
Dated this the 2nd day of July 2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C No.751/2015
Petitioner: Sri Abhishek Gowda K.S.,
Aged 23 years,
S/o Sri K.R.Shankare Gowda,
R/at No.146,
"Sri Ranga Nilaya",
2nd Main Road,
Srinivasapura,
Bangalore -560 060.
Native Address:
Sri Abhishek Gowda K.S.,
Aged 23 years,
S/o Sri K.R.Shankare Gowda,
Kundanakuppe,
Huthegere Post,
Athguru Hobli,
Maddur Taluk,
Mandya District,
Pin Code 571 429
(By Sri.K.V.R., Advocate.)
-Vs-
Respondents: 1. M/s.Samruddhi Enterprises,
No.1-13, Suhas Arcade,
SCCH-1 2 MVC No.751/2015
Ramohalli,
Ramohalli Post,
Kengeri Hobli,
Bangalore -560 074.
(Being the owner of Tipper lorry
Bearing regn.No.KA-41-B-0837)
.. Exparte
2. The Oriental Insurance
Co.Ltd.,
No.22, D.V.G. Road,
V.C.Plaza,
Basavanagudi,
Bangalore -560 004.
(Being the Insurer of the Tipper
Lorry bearing regn.
No.KA-41-B-0837)
Package Policy No.421800/
32015/2209
Period of Insurance
From 23-07-2014 to 22-07-
2015.
(By Sri D.M.J., Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking SCCH-1 3 MVC No.751/2015 compensation of Rs.50,00,000/- for the injuries sustained by him in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the petitioner that on 21.11.2014 at about 11.15 a.m. when the petitioner was riding motor cycle bearing No. KA-02-Y-8650 from Uttarahalli - Kengeri main road, and when he reached infront of newly constructing apartment near Channasandra bridge, at that time the driver of Tipper lorry bearing No. KA-41-B-0837 came in a rash and negligent manner dashed against the Tractor bearing No.KA-36-T-4095 and thereafter dashed to the motor cycle of the petitioner, as a result he fell down and sustained injuries.
3. Immediately after the accident he was shifted to B.G.S. Global hospital, and he took treatment as inpatient from 21.11.2014 to 05.01.2015. The petitioner was treated by the neurosurgery team of the B.G.S. SCCH-1 4 MVC No.751/2015 hospital and petitioner has spent Rs.20,00,000/- for consultation of neuro team doctors, ICU charges, medicines, clinical tests, ward charges, physiotherapy, food, conveyance and nourishment etc. Petitioner still under treatment till today and once in 15 days he is going for medical check up with Neurosurgeons at B.G.S. hospital.
4. It is the case of the petitioner that he is aged about 23 years and he was doing E.E.Electronics and Communication Engineering from Visveswaraiah Technoilogical University, Belgaum in the year July 2014 and many of the multinational companies have conducted interviews and shortly he was getting the jog and good handsome salary in future. Due to this untimely grievous injury by the road traffic accident, he was put to great hardship, mental agony and shock. He was a brilliant student and he is capable to write SCCH-1 5 MVC No.751/2015 competitive exam of Karnataka Administrative Services, I.A.S, I.P.S.
5. The accident was solely due to the rash and negligent driving of the Tipper lorry bearing No. KA-41-B- 0837. The first respondent is the owner and second respondent being the insurer of tipper lorry are jointly and severally liable to pay the compensation of Rs.50,00,000/- with interest.
6. In pursuance of this claim petition, this Court has issued notice against the respondents. Respondent NO.1 has not chosen to appear before the Court and he was placed exparte. Respondent No.2 appeared before the Court through his counsel and filed written statement.
Respondent No.2 has filed written statement denying the petition averments. This respondent has denied the date, time and mode of accident, involvement of the vehicle, age , avocation and income of the SCCH-1 6 MVC No.751/2015 petitioner, injuries sustained by the petitioner , expenses incurred by him and permanent disability suffered by him. It is contended that at the time of accident rider of the motor cycle was not possessing valid and effective driving licence, hence, this respondent has no liability to pay compensation to the petitioner. The owner of the offending vehicle does not have proper and valid F.C. and permit to use vehicle on road. It is further contended that the first respondent owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158(6) of M.V.Act. The compensation claimed by the petitioner is excessive and exorbitant. It is further contended that the second respondent reserves his right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act. Hence, prays to dismiss the petition. SCCH-1 7 MVC No.751/2015
7. 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 21-11-2014 at about 11.15 a.m, at Uttarahalli Main Road, Near Channasandra Bridge, Bengaluru City, within the jurisdiction of Kengeri Traffic Police Station on account of rash and negligent driving of the Tipper Lorry bearing registration No.KA-41-B-0837 by its driver?
2. Whether the Respondent NO.2 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?
8. The petitioner in order to prove his case, he examined himself examined as PW1 and has examined one witness as PW2 and they have got marked the documents at Ex.P.1 to 25. The respondents have not led any evidence before the Court .
SCCH-1 8 MVC No.751/2015
9. Heard arguments of petitioner counsel and respondent counsel.
10. 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
11. Issue No.1 and 2: These two issues are inter- connected to each other and they are taken up together for discussion in order to avoid repetition.
It is the case of the petitioner that the accident was occurred due to the rash and negligence on the part of the driver of the tipper lorry. On the other hand, respondent NO.2 insurance company has took the defence that the accident was occurred on account of the negligent act of the petitioner. The petitioner in order to SCCH-1 9 MVC No.751/2015 prove his contention he has filed affidavit reiterating the averments of the petition. Apart from that he has produced the documentary evidence i.e, FIR, police intimation, mahazar, sketch, IMV report, charge sheet as Ex.P.1 and 3 to 7. He also relied upon notice under section 133 and reply which are marked as Ex.P.9 and 10 and also produced certified copy of at information report at Ex.P.11. He was subjected to cross- examination. In the cross-examination, it is elicited that was regularly moving in the accident road and he was returning from his friends residence and the width of the road is 20 feet and he was proceeding from East to West. It is further elicited that normal traffic will be there in the said road and he has noticed the Tipper lorry was coming in the opposite direction and there was no any footpath on either side of the road and the accident was taken place near the Channasandra Bridge and the tractor was proceeding 10 to 15 feet ahead of his vehicle and the same was proceeding in the left side at the SCCH-1 10 MVC No.751/2015 distance of 6 feet at the edge of the road. It is admitted that that tipper lorry was coming opposite to tractor and the small vehicles were also coming by the side of Tipper lorry and there was no any road median. It is suggested that, he was on the right side of the tractor and while overtaking the tractor he went and dashed the lorry and these suggestions were denied. It is suggested that, the accident was occurred due to his negligence and the lorry first dashed against the tractor and trailer and thereafter dashed against his vehicle and these suggestions were denied. He says the accident was taken place in the middle of the road and he could not able to take the vehicle towards the left side since he suddenly came and dashed against the tractor. It is suggested that, the accident was occurred due to his negligence and the tractor and trailer driver and said suggestion is denied. He admits that he has not made the tractor and trailer owner as party to the proceedings since there was no any mistake on his part. PW-1 says he is having driving SCCH-1 11 MVC No.751/2015 licence and the same is produced before the Court. On the other hand, respondent NO.2 though taken the defence of the negligence on the part of the petitioner, the respondent No.2 has not chosen to examine the driver of the tipper lorry.
12. Now, let me appreciate both oral and documentary evidence available before the Court. It is the contention of the petitioner that first lorry hit the tractor and trailer thereafter hit the motor cycle, as a result he sustained injuries. In support of his contention, he has also relied upon the documentary proof apart from his oral evidence. The counsel for the petitioner in his arguments, he vehemently contended that there is no dispute with regard to the accident and respondent No.2 has not examined the driver and hence, the Court cannot take into consideration the contributory negligence. On the other hand, respondent counsel in his argument contended that Court has to take note of the sketch and SCCH-1 12 MVC No.751/2015 IMV report to verify that the accident occurred in the middle of the road and the accident between the two vehicles is an head on collusion.
13. In keeping the contentions urged by both the counsels, this Court has to take note of the sketch which is marked at Ex.P.5 and it is clear that the lorry which was coming in the opposite direction came to right side and the measurement of the road is 20 feet and the lorry came to right side and there is a distance between the place of accident and edge of the road is 12 feet and the tractor and motor cycle were coming in the opposite direction and they were proceeding in their left side. The driver of the tipper lorry is the right person to speak regarding the negligence on the part of the petitioner and he has not been examined before the Court. Though respondent counsel has contended that sketch and IMV report shows that the accident occurred in the middle of the road, I do not find force in the contention of the SCCH-1 13 MVC No.751/2015 respondent counsel that the lorry came towards right side of the road and dashed against the tractor and trailer and thereafter hit the motor cycle and there is no contra evidence as against the evidence of PW-1 and no rebuttal evidence as against the evidence of PW-1 and Court cannot presume things. In order to consider the contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )-No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied. Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative.
14. ISSUE No.3: It is the contention of the petitioner that due to the accident he has sustained grievous injuries and he has relied upon wound certificate and discharge summary which are marked at Ex.P.2 and P.8. He also produced the notarized copy of S.S.L.C. marks card, PUC marks card, B.E. Semister SCCH-1 14 MVC No.751/2015 marks card at Ex.P.13 to 16 to show that he has done Engineering graduation and he is academically good. He also produced provisional certificate and convocation certificate at Ex.P.17 and 18. It is also his case that he has spent Rs.13,56,158/- towards medical expenses and he has produced prescriptions at Ex.P.20. He was subjected to cross-examination. In the cross- examination, it is suggested that he has sustained only simple injuries and not grievous injuries and the same was denied. It is further suggested that he has falsely claimed that he has spent an amount of Rs.20,00,000/- and the same was denied. It is suggested that medical bills are created and produced to get more compensation and the said suggestion was denied. He says he has not received any medical reimbursement. It is suggested that, he is not having any difficulties and he is alright and he has falsely pleaded about the avocation and graduation and the same was denied.
SCCH-1 15 MVC No.751/2015
15. The petitioner also examined the doctor as PW-2 and in his affidavit he reiterated the nature of the injuries sustained by the petitioner. He says he has sustained injuries to his head and lost consciousness. He also had left ear bleeding. On examination he was deeply comatose with GCS of E1 V1 M2 and left third nerve paresis. In view of poor GCS he was intubated. He had multiple abrasions over right frontal region, left scapula, right knee and left elbow. Neuro Imaging revealed diffuse axonal injury with midbrain contusion. He was put on mechanical ventilator and treated in I.C.U. He underwent surgical Tracheostomy on 25.11.2014. With gradual improvement in sensorium he was shifted to ward and he was discharged on 05.01.2015 with advise to follow up treatment, ryles tube feed, physiotherapy, speech therapy and rehabilitation. He had sluring of speech, left third nerve paresis, left hemiparesis with gait ataxia. His neuropsychological evolution revealed a low IQ OF 67 . He further says he has assessed the disability according SCCH-1 16 MVC No.751/2015 to the WHO, AIIMS and DGHS, New Delhi guidelines. He has assessed intellectual disability 75% (Neuropsychological assessment), speech disability 25%, cranial nerve disability 20%, motor system disability 50%, hence, he has global permanent disability of 92.5%. He has also got marked O.P. record and inpatient record as Ex.P.23, 24 and 18. X-rays and 5 C.T.Scan films at Ex.P.25. In the cross-examination, he admits that he is Neuro surgeon and the injured directly came to hospital immediately after the accident. He admits that he has treated the patient along with other team of doctors and the injury 1 and 2 are grievious in nature and other injures are simple in nature. They did surgical tracheostomy and the patient regained the conscious almost 30 to 35 days. He further says the inpatient records does not discloses the date of regaining of conscious. He admits that it is true in the affidavit also the same is not mentioned. He also says while assessing the disability, he had examined the patient and he made SCCH-1 17 MVC No.751/2015 clinical notes in his OPD record and the injured was subjected to Neuro psychological evaluation and based on the report, he assessed the disability basing IQ 67. The speech disability is mild. The petitioner is having partial nerve disability and hence I have taken 20% disability. It is suggested that injured came and gave evidence before the Court and hence he is not having the disability as assessed by him and the said suggestion was denied. He says the OPD record discloses the follow up treatment and the same is denied. It is suggested that, he was not having any difficulties and problems when he took the follow up treatment and the said suggestion was denied. He admits the disability is assessed after 1½ year of his discharge. It is suggested that, comparing the IQ 67 the disability of 75% will not come and the same was denied. He admits that there is a mistake in the affidavit mentioning the date as 16/4/2015 instead of 4/2/2016. It is suggested that, he has assessed the disability to the extent of 75% are SCCH-1 18 MVC No.751/2015 intellectual disability is on higher side and he is not having such extent of disability and the same was denied. It is suggested that once the disability assessed as mild there cannot be a disability of 92.5% of disability to whole body and the said suggestion was denied. The Cranial disability also comes within the mild disability and the motor system disability assessed based on the clinical examination.
16. Now, let me appreciate the oral and documentary evidence available on record. On perusal of the Ex.P.2 wound certificate he has sustained the grievous injuries NO.1 and 2. Except these two grievous injuries other injuries are simple in nature as opined by the doctor. He had injury to right frontal region and with hematoma , there was bleeding in the left ear and in the discharge summary also doctor has diagnosed it is a case of traumatic brain injury , diffuse axonal injury Adam's Grade III, Midbrain contusion. He was subjected to SCCH-1 19 MVC No.751/2015 surgical Tracheostomy and he was inpatient from 21.11.2014 to 5.01.2015 for a period of 46 days. For having taken note of the grievous injuries like traumatic brain injury, diffuse axonal injury adam's Grade III, Midbrain contusion and period of treatment, I award a sum of Rs.75,000/- towards Pain and sufferings.
17.The petitioner was in the hospital for a period of 46 days and the same is evident from Ex.P.8 and the same discloses that he was inpatient from 21.11.2014 to 05.01.2015 i.e., for a period of 46 days. He was subjected to surgical tracheostomy on 25.11.2014. For having taken note of the fact that petitioner was inpatient in the hospital for a period of 46 days and during that period he might have spent some amount towards conveyance, food and nourishment etc., Hence, I award Rs.40,000/- as compensation under the head of food and nourishment, conveyance, attendant charges and other incidental charges.
SCCH-1 20 MVC No.751/2015
18. The petitioner in the petition has contended that he has passed B.E.Engineering and he was searching job in the Multi National Companies and also he has produced S.S.L.C.,P.U.C. marks card as Ex.P.14 to 16 and also produced provisional certificate and convocation certificate as Ex.P.17 and 18. On perusal of these documents, it discloses that the petitioner is a meritorious student and in the SSLC he got 468/626 and secured 74.88% and in PUC he secured 460/600 and he has completed his B.E. in some of the semesters he has secured First class and in some of the semesters he has secured second class and also produced Provisional Degree Certificate and B.E.Convocation certificate. The petitioner counsel in support of his contention he has relied upon the judgment of Apex Court reported in 2014 ACJ 2648 (Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramchandra Sharma and another). In this judgment the Apex Court has taken the income of the medical student SCCH-1 21 MVC No.751/2015 at Rs.25,000/p.a. The petitioner counsel also relied upon the unreported judgment of Division bench of Karnataka High Court in M.F.A. No. 18/2007 and in this judgment the Division Bench has taken note of the 3rd year B.E. student and observed that he would have completed his B.E. in such an event his income per month could not be less than Rs.25,000/p.m. Considering the uncertainty in life, they have assessed the income at Rs.10,000/p.m. as he has to suffer from paraplegia and confined to bed on account of the disability for the rest of his life.
19. The petitioner counsel also relied upon the unreported judgment of the Division Bench M.F.A. No.7341/2002 and brought to my notice the compensation awarded considering the additional qualification, age of the claimants and taken the income of the claimant as Rs.10,000/- and also brought to my notice that compensation given on the different heads. SCCH-1 22 MVC No.751/2015
20. In keeping the judgments referred supra and the evidence available before this Court, this Court has to take note of the medical evidence available before the Court. The doctor who has been examined before the Court as PW2 has assessed the disability at 92.5%. In the cross-examination, he admits that they did surgical tracheotomy and having regained his consciousness, it is his evidence that he was subjected to Neuro Psychological evaluation and based on the report, he assessed the disability basing on IQ 67. He also admits that speech disability is mild. The petitioner is having partial disability , hence, he has taken 20% disability. He further admits that disability assessed after 1 ½ year of his discharge. Though it is suggested that comparing the IQ 67 the disability of 75% will not come and he denied the same. It is suggested that the guidelines does not say anything about 75% has to be given as disability when the IQ was 67 and the said suggestion was denied. It is further suggested that once the disability assessed SCCH-1 23 MVC No.751/2015 as mild there cannot be a disability of 92.5% of disability to whole body and the same was denied. It is also elicited that cranial disability also comes within the mild disability. For having taken note of the cranial nerve disability and speech disability is mild, this Court also observed while recording the evidence of PW-1 that speech is not clear and he is having feeble voice and no doubt he has examined before the Court and condition of the petitioner worsened. For having taken note of the documentary evidence available before the Court, nature of the treatment given to him and he was subjected to surgery of trachostomy and he was unconscious earlier stage and he was treated in I.C.U., I am of the opinion that the disability assessed by the Doctor is 92.5% and it appears to be little higher side . For having taken note of the fact that when the witness is able to come and give evidence, I have already observed that the condition of the petitioner is not good and his speech is not clear and he was examined before the Court on 03.03.2016 which SCCH-1 24 MVC No.751/2015 is after the two years of the accident and the disability assessed by the doctor is permanent one and not the temporary one and petitioner is unable to speak and having feeble voice, I am of the opinion that it is a fit case to consider the disability to 75% to whole body.
21. The principles laid down in the judgment referred supra the Hon'ble Supreme Court has taken Rs.25,000/p.m. in respect of medical student, Hon'ble High Court of Karnataka also while passing orders on M.F.A. in the year 2007. Considering the accident is of the year 2003 has taken the income as Rs.10,000/-p.m. for Engineering student and also in another Division Bench M.F.A. No.7341/2002, the Court has taken note of the educational qualification and taken Rs.10,000/- as income in respect of the accident which was occurred in 2000 and this accident is occurred in 2014, hence, I am of the opinion that in the case on hand, the petitioner SCCH-1 25 MVC No.751/2015 has already completed his education of Engineering in 2013 and he was in search of employment and I have also pointed out he has secured 75% marks in SSLC and subsequently he got 468/600 in II P.U.C. and also he has performed well in Engineering by considering the same also by taking into note of the year of the accident and as held by Hon'ble High Court of Karnataka in Division Bench taking into note of the uncertainty of life it is a fit case to take income at Rs.12,000/p.m. and it is case of 75% disability.
22. It is held by the Apex Court in the judgment 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 SCCH-1 26 MVC No.751/2015 leg, for pain and suffering, for loss of expectation of life, loss of amenities in life, for medical and incidental expenses and litigation costs.
It is also held in the judgment reported in 2014 ACJ 653 (Sanjay Kumar Vs. Ashok Kumar and others) wherein it is held that :
Amputation of right leg above knee-injured was hospitalized for 46 days and remained under treatment for 3 months -injured an embroiderer, earning Rs.4,500/p.m. and as per entry 18, Par II, Schedule I of Workmen's Compensation Act, suffered 70 percent loss of earning capacity-Tribunal taking into consideration minimum wages for unskilled worker assessed income at Rs.3,166/p.m. , adopted multiplier of 16 and awarded Rs.4,83,472/-.
High Court adopted multiplier of 18 and enhanced the award to Rs.6,35,808/-. Apex Court taking into consideration that injured was a skilled worker, accepted his claim of income of Rs.4,500/p.m. allowed 50 percent increase for future prospects , took loss of earning capacity at 70 percent, adopted multiplier of 18 and allowed Rs.10,20,600/- plus Rs.13,500/- for SCCH-1 27 MVC No.751/2015 loss of income during treatment, Rs.75,000/- for medical expenses, attendant and conveyance, Rs.75,000/- for loss of marriage prospects, Rs.1,50,000/- for mental agony and pain and suffering , Rs.1,00,000/- for loss of amenities and Rs.25,000/- as cost of litigation.
Award of Rs.6,35,808/- was enhanced to Rs.14,59,100/-.
23. In the case on hand, the income of the petitioner is taken as Rs.12,000/- 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.18,000/-. This Court has taken the disability suffered by the petitioner at 75%. The petitioner has stated his age as 23 years in the petition. He has produced his S.S.L.C. marks card which discloses his date of birth as 15.6.1991 i.e, as on the date of accident petitioner was 23 years old and the appropriate multiplier applicable is 18. Hence, the petitioner is entitled for compensation under the head of loss of earning due to disability as : SCCH-1 28 MVC No.751/2015
Rs.18000x12x18x75/100 = Rs.29,16,000/-. Hence, I award Rs.29,16,000/- towards loss of earning due to disability.
24. The question of awarding loss of income during the laid up period does not arise at all for the reason that he was searching for job after completion of B.E. and he was not an employee.
25. The petitioner was aged 23 years as on the date of accident and he was a bachelor and he has suffered 75% disability. The petitioner has suffered traumatic brain injury, diffuse Axonal injury Adam's Grade III, Midbrain contusion and petitioner is having feeble voice and he has to lead rest of his life with 75% disability , hence, I award Rs.50,000/- towards loss of marriage prospects and Rs.50,000/- towards loss of amenities.
26. The petitioner has produced medical bills to the tune of Rs.13,56,158/-. Out of that inpatient bills is SCCH-1 29 MVC No.751/2015 about Rs.12,32,000/- and the petitioner has purchased medicines on different dates. I did not find any double counting of the bills. No doubt it is disputed that medical bills are created. I have already pointed out that he was in the hospital for 46 days and had under gone surgery and these bills are issued by concerned hospital. The remaining bills are medicine purchased by the petitioner which is supported by the prescriptions. Hence, I have accepted the medical bills and the same is rounded off to Rs.13,60,000/- . Hence, I award Rs.13,60,000/- towards medical expenses.
27. The doctor who has been examined as PW-2 has stated nothing about future surgery and also not placed any documentary proof. Hence, question of awarding compensation towards future surgery does not arise.
28. The details of compensation, I propose to award are as under:SCCH-1 30 MVC No.751/2015
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 75,000-00
2. Medical expenses Rs. 13,60,000-00
3. Food and nourishment, Rs. 40,000-00
conveyance , attendant
charges and other incidental
expenses
4. Loss of future earning due to Rs. 29,16,000-00
permanent disability
5. Loss of amenities Rs. 50,000-00
6. Loss of marriage prospects Rs. 50,000-00
Total Rs. 44,91,000-00
29. 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 SCCH-1 31 MVC No.751/2015 application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100) (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.
30. As regards the liability to be fixed on the respondents, admittedly the respondent No.1 is the insurer and respondent No.2 is the owner of lorry bearing No. KA-03-4653, hence, both respondents are jointly and severally liable to pay compensation to the petitioner.
However, primary liability is fixed on respondent No.1 to SCCH-1 32 MVC No.751/2015 satisfy the award. Hence, this issue is answered accordingly.
31. Issue No.4: In view of the discussions made above, I proceed to pass the following: -
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for compensation of Rs.44,91,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and he is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount to which the petitioner is entitled, 50% with proportionate interest SCCH-1 33 MVC No.751/2015 shall be kept in F.D. in his name in any nationalized or scheduled bank of his choice for a period of 5 years with liberty to draw the accrued interest periodically and the remaining amount with proportionate interest is ordered to be released to him.
Advocate's fee is fixed at Rs.1000/-. 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 2nd day of July 2016) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Abhishek Gowda K.S P.W.2 : Dr.Santhosh N.U.
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR Ex.P-2 : Copy of wound certificate SCCH-1 34 MVC No.751/2015 Ex.P-3 : Copy of Police intimation Ex.P-4 : Copy of mahazar Ex.P-5 : Copy of sketch Ex.P-6 : Copy of IMV report Ex.P-7 : Copy of charge sheet Ex.P-8 : Discharge summary Ex.P-9 : Copy of 133 notice Ex.P-10 : Reply to 133 notice Ex.P-11 : Accident information report Ex.P-12 : Copy of driving licence (original compared) Ex.P.13 Notarised copy of Voter identity card (original compared) Ex.P.14 Notarised copy of SSLC marks card (original compared) Ex.P.15 Notarised copy of PUC marks card (original compared) Ex.P.16 Notarised copy of B.E.Semester marks card(8) (original compared) Ex.P.17 Certified copy of Provisional Degree certificate Ex.P.18 Certified copy of convocation certificate Ex.P.19 Medical bills (56) Ex.P.20 Prescriptions (8) Ex.P.21 Medical bills Ex.P.22 OP record Ex.P.23 &24 Inpatient records Ex.P.25 X-rays (18) and C.T.Scan films(5) SCCH-1 35 MVC No.751/2015
Witnesses examined on behalf of the respondents :
- Nil -
Documents marked on behalf of the respondents:
- Nil -
(H.P.SANDESH) Member, Prl., M.A .C.T. Bangalore