Bangalore District Court
In Mvc No.6111/2016 vs No.2 - By Sri H.C.Betsur on 6 May, 2017
SCCH-1 1 MVC-6111/16 to 6113/16
BEFORE THE MEMBER PRL.M.A.C.T., & CHIEF JUDGE,
COURT OF SMALL CAUSES, BENGALURU
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B.,
MEMBER, PRL.M.A.C.T
M.V.C.No.6111/2016, 6112/2016 & 6113/2016
DATED: 6th DAY OF MAY'2017
BETWEEN:-
GIRIRAJU,
S/o.Muniyappa,
Aged about 62 years,
Residing at No.23, Laxminivas,
M.V.Layout,
Hosakote Town,
Bangalore Rural District.
Petitioner in MVC No.6111/2016
N.M.RAJANNA,
S/o.Late Munivenkatappa,
Aged about 50 years,
Residing at N.66,
Teacher's Colony.
Kannurahalli,
Hosakote,
Bangalore Rural District.
Petitioner in MVC No.6112/2016
RAJANNA S.,
S/o.Shambappa,
Aged about 45 years,
Residing at No.69,
2nd Main, 3rd Cross,
M.V.Extension,
Hoskote,
Bangalore Rural District.
Petitioner in MVC No.6113/2016
(By Sri S.Rajanna, Advocate)
AND:-
1) KRISHNAPPA M.,
No.22, Banahalli Village,
Chandapura Circle,
Anekal Taluk, Chandapura,
Bangalore North,
Bangalore 560 099.
SCCH-1 2 MVC-6111/16 to 6113/16
(RC Owner of the Mini Bus
Bearing Reg.No.KA.51/D.3545)
2) RELIANCE GENERAL
INSURANCE CO., LTD.,
Regional Office,
No.28, 5th Floor,
Centenary Building,
M.G.Road,
Bangalore 560 001.
(Policy No.1401252340009908
Valid from 10.03.20165 to 09.03.2017)
(Common Respondents in both the petitions)
(Respondent No.1 by Sri M.K.Raghavendra, Advocate
Respondent No.2 - by Sri H.C.Betsur, Advocate)
COMMON JUDGMENT
All these petitions are arising out of the same accident and therefore,
they are disposed of by this common judgment.
2. The petitioners have filed these petitions claiming compensation of
Rs.22 lakhs, Rs.12 lakhs and Rs.10 lakhs, respectively from the
respondents 1 and 2, the owner and insurer of the Mini Bus
No.KA.51/D.3545, jointly and severally, on account of the injuries
sustained by them in the motor vehicle accident that occurred on
02.08.2016 at about 05.10 am., near Saw Mill, K.K.Layout, Hoskote Town,
Bangalore District.
3. Brief facts of the case are that:- On 02.08.2016, at about 05.10 am.,
when the petitioners, as pedestrians, were on the extreme left side of
K.K.Layout near Saw Mill, Hoskote Town, Bangalore District, at that
time, Mini Bus bearing registration No.KA.51/D.3545 came from opposite
direction driven by its driver in rash and negligent manner and in high
SCCH-1 3 MVC-6111/16 to 6113/16
speed and came on the said road and dashed against the petitioners and in
the accident, these petitioners were grievously injured.
4. In the accident, the petitioner in MVC No.6111/2016 has suffered
grievous injuries and was initially shifted to Srinivasa Nursing Home,
Hoskote wherein first aid was given and thereafter, he was shifted to
Manipal Hospital, wherein he took treatment as inpatient for 15 days and
spent substantial amount for treatment. Prior to the accident, the petitioner
aged 62 years, was working as General Manager at R.K.Infra (India) Pvt.,
Ltd., and earning Rs.25,000/- per month. On account of the accident, he
suffered permanently disability and thereby suffered loss of income and
lost earning capacity. Hence, the petitioner in MVC No.6111/2016 prays
to award compensation of Rs.22 lakhs from the respondents.
5. In the accident, the petitioner in MVC No.6112/2016 has suffered
grievous injuries and was shifted to Srinivasa Nursing Home, Hoskote
wherein first aid was given and thereafter, he was shifted to Manipal
Hospital, wherein he took treatment as inpatient for a lengthy period and
spent substantial amount for treatment. Prior to accident, the petitioner
aged 50 years, was working as Assistant Master at Government Lower
Primary School and getting a salary of Rs.20,000/- per month. On account
of the accident, he suffered permanently disability and thereby suffered
loss of income and lost earning capacity. Hence, the petitioner in MVC
No.6112/2016 prays to award compensation of Rs.12 lakhs from the
respondents.
SCCH-1 4 MVC-6111/16 to 6113/16
6. In the accident, the petitioner in MVC No.6113/2016 has suffered
grievous injuries and initially, he was shifted to Srinivasa Nursing Home,
Hoskote wherein first aid was given and thereafter, he was shifted to East
Point and HOSMAT Hospital, wherein he took treatment as inpatient for a
lengthy period and spent substantial amount for treatment. Prior to
accident, the petitioner aged 45 years, was working as an Advocate and
Counselor at District Legal Services Authority and getting an income of
Rs.25,000/- per month. On account of the accident, he suffered
permanently disability and thereby suffered loss of income and lost earning
capacity. Hence, the petitioner in MVC No.6113/2016 prays to award
compensation of Rs.10 lakhs from the respondents.
7. It is the case of the petitioners that the jurisdictional police have
registered a case and filed charge sheet against the driver of the Mini Bus
No.KA.51/D.3545. The respondents No.1 and 2 being the owner and
insurer of the said mini bus are jointly and severalty liable to pay
compensation to the petitioners.
8. Pursuant to filing of these petitions, notice was issued to the
respondents. Both the respondents entered appearance through their
Counsel. The respondent No.1 has not filed statement of objections,
whereas, the respondent No.2 has filed statement of objections.
9. The second respondent in its reply, which is common in all the
petitions, contended that the petitioners should provide their PAN Card
number and IT Returns if returns are filed and also should provide bank
SCCH-1 5 MVC-6111/16 to 6113/16
account number. Without admitting the liability, the respondent No.2 has
contended that if this Court awards any compensation, such compensation
amount shall be directed to be deposited through NEFT/RTGS directly to
the bank account of the claimants.
10. The respondent No.2 has contended that the petitions are not
maintainable either in law or on facts. The respondent No.2 has contended
that the registration number of the mini bus is not mentioned in the
complaint and FIR and after thought, the petitioners have mentioned the
registration number in other police documents by colluding with the police
and the respondent No.1 and hence, the respondent No.2 is not liable to pay
compensation amount to the petitioners.
11. Without prejudice to the above contentions, the respondent No.2 has
contended that the accident has occurred only due to the negligence on the
part of the petitioners, since the petitioners were walking on the road
without observing the vehicular traffic. There was no fault on the part of
the driver of the minibus and moreover, the bus is not at all involved in the
alleged accident.
12. It is contended that the Police authorities have not complied the
provisions of Section 158(6) of the MV Act.
13. It is further contended that the respondent No.1 has not produced
the vehicular documents, particulars of the driver, RC, FC and Permit to
the respondent No.2.
SCCH-1 6 MVC-6111/16 to 6113/16
14. It is contended that the averments in Column No.1 to 15 and 17 to
22 of the petition are not within the knowledge of the respondent No.2 and
hence, the contents of the same are denied and the petitioners have been
put to strict proof of the same.
15. The respondent No.2, while denying the issuance of insurance
policy in respect of the mini bus, has contended that even if it is proved
that the policy is issued, the liability is subject to terms and conditions of
the policy.
16. The respondent No. 2 is not aware of the age, avocation and income
of the petitioners, injuries sustained, amount spent for treatment, disability
suffered and also the loss of earning capacity and therefore, they are denied
as false.
17. It is pleaded by the respondent No.2 that the accident did not take
place due to the negligence on the part of the driver of the Mini Bus
No.KA.51/D.3545 by its driver as stated by the petitioners and on the
contrary, it is contended that the accident has occurred only due to the
negligent act of the petitioners, because they were walking on the road
without proper care and caution. It is contended that the amount of
compensation claimed by the petitioners' is exorbitant and not based on
any norms. Hence, for all these reasons, the second respondent has sought
for dismissal of the petitions.
18. Based on the above pleadings, the following common issues were
framed:-
SCCH-1 7 MVC-6111/16 to 6113/16
1) Whether the petitioner proves that he sustained grievous injuries
in a Motor Vehicle Accident that occurred on 02.08.2016 at
about 05.10 am., at K.K.Layout, near Saw Mill, Hoskote Town,
Bangalore District within the jurisdiction of Hoskote Police
Station on account of rash and negligent driving of the Mini Bus
bearing registration No.KA.51/D.3545 by its driver?
2) Whether the respondent No.2 proves that the accident occurred
on account of the negligent act of the petitioner?
3) Whether the petitioner is entitled for compensation? If so, how
much and from whom?
4) What order?
19. In order to prove their case, the petitioner in MVC No.6111/2016
got himself examined as PW 1, the petitioner in MVC No.6112/2016 got
himself examined as PW 2 and the petitioner in MVC No.6113/2016 has
been examined as PW 3 and the petitioners have examined 3 more
witnesses as PW 4 to 6. The petitioners in all got marked 29 documents as
Ex.P.1 to P.29.
20. The respondents have not adduced any evidence, either oral or
document, before the Court.
21. Heard the arguments of the petitioners' as well as respondents'
counsel.
22. Having perused the pleadings of the parties, evidence led by both
sides, material available on record and upon going through the oral
arguments of the petitioners' counsel and the written arguments of the
counsel for respondents, my findings on the above issues are as under:-
1) In the affirmative,
2) In the negative,
3) Partly in the affirmative,
SCCH-1 8 MVC-6111/16 to 6113/16
4) As per final order, for the following:-
REASONS
23. Issue No.1 and 2 in all the cases:- Since all these claim petitions
are arising out of the same accident and issue No.1 and 2 in all the petitions
are regarding the negligence, they are taken up together for discussion.
24. All these petitions are filed under Section 166 of the Motor Vehicles
Act, 1988 and therefore, it is incumbent upon the petitioners to prove the
negligence on the part of the driver of the mini bus bearing
No.KA.51/D.3545 in occurrence of the accident.
25. All the petitioners have stated in their petition that the accident
occurred on account of the rash and negligent driving of the mini bus
bearing registration No.KA.51/D.3545 by its driver. It is their case that on
02.08.2016 at about 05.10 am., they were walking by the extreme left side
at K.K.Layout, near Saw Mill, Hoskote Town, Bangalore and at that time,
Mini Bus N.KA.51/D.3545 driven by its driver in rash and negligent
manner came from opposite direction and dashed against them causing
them grievous injuries. In the accident, all the petitioners suffered grievous
injuries and they have been shifted to Srinivasa Nursing Home, Hoskote
wherein first aid was given and thereafter, they were shifted to various
hospitals at Bangalore wherein they were treated as inpatients. Thus, it is
their case that the accident has occurred on account of the rash and
negligent driving of the mini bus by its driver.
SCCH-1 9 MVC-6111/16 to 6113/16
26. As stated above, though both the respondents entered appearance,
but it is only the respondent No.2, who has filed statement of objections
denying the negligence attributed to the driver of the mini bus and in turn,
it is contended that the petitioners were going on the road without due care
and caution of the vehicular traffic and hence, the accident, occurred on
account of the negligence of petitioners themselves.
27. In order to prove their case, the petitioner in MVC No.6111/2016
has been examined as PW 1, the petitioner in MVC No.6112/2016 has been
examined as PW 2 and the petitioner in MVC No.6113/2016 has been
examined as PW 3. They have filed their respective affidavit in the form of
examination in chief. PW 1 through his evidence got marked the FIR,
Mahazar, IMV Report and Charge Sheet as Ex.P.1 to 4.
28. PWs 1 to 3 have been subjected to cross-examination by the counsel
for the respondent No.2 and in their cross-examination, it is elicited from
them that in all there were 5 persons while walking and out of 5 persons, 3
persons suffered injuries. They admit that they were walking by the side
and the width of the road is about 30 feet. It is further elicited form them
that they used to walk regularly together. It is suggested to them that while
walking, they used to discuss the family matters and further suggested that
the road will be blocked if all the 5 persons walk together and the said
suggestion has been denied by them. It is further suggested to them that
they have not given space after hearing the vehicle sound and the said
suggestion has been denied by them. It is suggested to them that other 2
SCCH-1 10 MVC-6111/16 to 6113/16
persons have not sustained injuries as they were walking properly and
since they 3 persons were not walking properly and occupied the entire
road and the said suggestion has been denied by them. It is elicited from
them that the mini bus came and dashed against them and that the side
luggage box door was opened and the same came in contact with them. It
is elicited from PW 1 that he lodged complaint.
29. The respondent No.2 though contended that the accident has not
occurred due to negligence on the part of the driver of the mini bus, but
they have not examined the driver of the mini bus, who would have been
the best person to speak as to the manner in which the accident has
occurred or regarding the negligence, if any, on the part of the petitioners
in occurrence of the accident.
30. Now, let me appreciate both oral and documentary evidence
available before the Court.
31. The petitioners have produced FIR, Mahazar, IMV Report and the
Charge Sheet which are marked as Ex.P.1 to 4. On perusal of FIR, it is
seen that a case has been registered by the jurisdictional police against the
driver of the mini bus No.KA.51/D.3545 upon the complaint lodged by PW
1. It is true that there is no mention of number of the mini bus either in the
complaint or in the FIR. Based on the complaint lodged, the Police
investigated into the matter and filed charge sheet against the driver of the
mini bus for offence under Section 279 and 338 of IPC. The petitioner has
filed the Spot Mahazar, which is marked as Ex.P.2, perusal of which
SCCH-1 11 MVC-6111/16 to 6113/16
clearly shows that during the course of drawing spot mahazar, two
eyewitness to the incident ie., Anjinappa and T.Harish were present and
showed the place of impact. From the pleadings, evidence placed on
record coupled with the police papers, it is evident that the petitioners
along with others, were on regular morning walk and at that time, the mini
bus came on that road. For the reason that the door of the luggage box of
the mini bus was opened, which the driver of the said vehicle did not
notice, it came in contact with the petitioners, and probably the said fact,
resulted in the accident. Though the respondent No.2 contended that there
was no negligence on the part of the driver of the mini bus, but the
contention of the petitioners that the luggage box door was kept opened,
was not disputed or denied by the respondent No.2. Further, as per the
version of the petitioners, after the accident, the vehicle did not stop the
vehicle. Therefore, in the complaint the number of the vehicle is not
mentioned and even in the FIR, the vehicle of the number is shown as "To
be traced". On perusal of the wound certificates of the petitioners, they
show that the petitioners have suffered injuries to abdomen, ribs and
vertebra. This fact, coupled with the contention of the petitioners that the
luggage box door of the mini bus was kept open which came in contact
with the petitioners, conclusively show that the petitioners were moving by
the side of the road and the accident having occurred at 5.10 am., in the
morning, probably on account of the non-visibility, the driver of the mini
bus, on account of misjudgment, went ahead and the door of the luggage
box of the mini bus was opened, came in contact with the petitioners,
SCCH-1 12 MVC-6111/16 to 6113/16
resulting in injuries to them. There is nothing in the cross-examination of
the petitioners to disbelieve the case made out by them. As against the
same, the respondent No.1, the owner of the mini bus, has not contested the
case of the petitioners, whereas, the respondent No.2, the Insurance
Company has not produced any contra evidence. The driver of the mini
bus has not been examined to controvert the evidence placed on record by
the petitioners in support of their case. As per the police records, the
vehicle number was traced during investigation. If the said vehicle was not
at all involved as contended by the respondent No.2, then the respondent
No.1 would not have let the case go uncontested without filing statement of
objections, nor the driver of the said mini bus challenged the charge sheet
filed against him. Mere non mentioning of the vehicle number in the FIR
and complaint will not itself render the case of the petitioner unacceptable
or created. Thus, the facts of the case clearly and categorically reveal that
the accident occurred on account of the rash and negligent driving of the
mini bus by its driver. Accordingly, issue No.1 is answered in the
affirmative and issue No.2 is answered in the negative, in all the cases.
32. Issue No.3 in MVC No.6111/2016:- Petitioner in MVC
No.6111/2016 has been examined as PW 1. His evidence would go to
show that he sustained injuries in the accident and immediately after the
accident, he was shifted to Srinivasa Nursing Home, Hoskote wherein he
was given first aid and thereafter, he was shifted to Manipal Hospital,
wherein he was treated as inpatient. Ex.P.5 is the Wound Certificate issued
SCCH-1 13 MVC-6111/16 to 6113/16
by Manipal Hospital which shows that the petitioners has suffered the
following injuries:-
1) Blunt injury abdomen and chest with pleural effusion with dilated
jujunal and ileal loops.
2) Fracture mid shaft clavicle right
33. The doctor who issued the above certificate has opined the injuries
as grievous in nature. Apart from the Wound Certificate, the petitioner has
also produced Ex.P.6 - Discharge Summary issued by the said Hospital. A
close perusal of the discharge summary shows that the petitioner, having
sustained blunt trauma abdomen, right hemicolectomy, he was admitted
and treated by laparoscopy assisted right hemicolectomy with brookes
ileostomy creation on 02.08.2016. The petitioner has also examined
Dr.Sumit Talwar, Consultant, General and Minimal Access Surgery,
Manipal Hospital, wherein the petitioner was treated as inpatient, who in
his evidence as PW 4, has reiterated about the nature of injuries sustained
by the petitioner and the treatment given to him. As per the medical
records, the petitioner was treated as inpatient on 3 occasions for 31 days.
As against the evidence placed on record regarding the injuries suffered by
the petitioner and the treatment given to him in the form of oral as well
documentary evidence, the respondent No.1, the owner of the mini bus and
the respondent No.2 - Insurer of the same have not put forward any contra
evidence in the form of either oral or documentary. Thus, having regard to
the fracture and that he was inpatient for a considerable period of time, he
has been awarded Rs.75,000/- under the head injury pain and suffering.
SCCH-1 14 MVC-6111/16 to 6113/16
34. So far as medical expenses are concerned, as per Ex.P.9 Series, the
petitioner has produced 36 medical bills amounting to Rs.10,46,712/-. I
have gone through the bills produced by the petitioner. Bill at Sl.No.29 is
for Rs.4,15,454/- towards treatment obtained by the petitioner from
02.08.2016 to 16.08.2016. Bill at Sl.No.22 is for Rs.2,03,555/- for
obtaining treatment from 21.09.2016 to 26.09.2016. Again, the petitioner
was admitted and treated as inpatient from 29.09.2016 to 08.10.2016 and
therefore, the hospital has issued bill at Sl.No.8 for Rs.2,52,685/-. Thus, on
3 occasions, the petitioner was treated as inpatient and treated for 31 days.
However, in the cross-examination, it is elicited from PW 1 that Final Bill
at Sl.No.20 and Ex.P.29 of Ex.P.9 is not issued on the letter head. On
perusal of Sl.No.20 of the said bills, though the same does not contain the
letter head, but in respect of the Bill at Sl.No.20, there is reference with
regard to the payment of Advances and after deducting the advance paid,
final bill is prepared. Further, the petitioner admits in his cross-
examination that Sl.No.29 of Ex.P.9 discloses the payer of the bill as
IFFCO TOKIO General Insurance Co., Ltd. Therefore, I gave
meticulously gone through bill at Sl.No.29 of Ex.P.9. It can be seen that it
is a photocopy of the bill, upon which seal of the Manipal Hospital is put
and signature is made. It also shows the payer as Iffco Tokio General
Insurance Co., Ltd. Though the petitioner claims that the Insurer has made
payment of Rs.1,00,000/- only, but to prove the same, no receipts are
produced by the petitioner. Further, though as per the say of the petitioner,
an amount of Rs.1 lakhs is made through online, but at the same,
SCCH-1 15 MVC-6111/16 to 6113/16
Rs.95,454/- and Rs.10,000/- as shown in the said bill, is also made through
on line and Rs.2,10,000/- is paid by cash. Therefore, in all probability, it
can be said that the amount shown in Sl.No.20 of the bill is paid by the
Insurer and not the petitioner, which cannot be reimbursed. Further, in all
the petitioner claimed in all Rs.10,46,712/- towards medical expenses, but
after excluding the advance payment made which is included in the final
bill and also the payment made by the Insurer and miscalculation, the
balance amount comes to Rs.5,04,615/-. Thus, considering the gravity of
the injury and the period of treatment, the amount shown in these bills
cannot be doubted. As such, he has been awarded Rs.5,04,615/- under the
head medical expenses.
35. Immediately after the accident, the petitioner was shifted to
Srinivasa Nursing Home, Hoskote where he was treated conservatively and
thereafter, he was shifted to Manipal Hospital, Bengaluru wherein the
petitioner was treated as inpatient on 3 occasions ie., from 02.08.2016 to
16.08.2016, 21.09.2016 to 26.09.2016 and finally from 29.09.2016 to
08.10.2016, in all for 31 days. Having regard to the nature of the injuries,
it was inevitable for the petitioner to engage private vehicle for his
conveyance. Considering the same, the petitioner has been awarded
Rs.40,000/- under the head conveyance charges and attendant charges.
36. It is the case of petitioner that he was aged 62 years and working
as General Manager at R.K. Infra (Pvt) Ltd., and earning Rs.25,000/- per
month. Petitioner went on record to depose that during the period of
SCCH-1 16 MVC-6111/16 to 6113/16
treatment, he has suffered loss of income. So far as age is concerned, the
petitioner has not produced any documentary evidence thereby the Tribunal
has to rely on medical records to assess the age of the petitioner. In this
regard, if we peruse FIR & Complaint, lodged by the petitioner himself, he
has shown his age as 62 years. Likewise, Ex.P.8 Wound Certificate and
Ex.P.6, both show the age of the petitioner as 62 years. Thus, the age of
the petitioner is taken as 62 years at the time of accident
37. So far as avocation and income is concerned, the petitioner has
stated in the petition that he was working as General Manager at R.K.Infra
India Pvt., Ltd., and getting a salary of Rs.25,000/- per month. In his
evidence as PW 1 also, he has reiterated the said fact. In order to
substantiate the nature of avocation and income, the petitioner has
produced Ex.P.10(a) Salary Certificate issued by the said Firm, which is in
corroboration with his case in this regard. Even though the author of the
said document is not examined, but the respondents have not proved the
said document as untrustworthy. Thus, the age of the petitioner is accepted
as 62 years at the time of accident and the income of the petitioner is taken
as Rs.25,000/- as per Ex.P.10(a).
38. As discussed above and as per the medical records, it is clear that
the petitioner has suffered blunt trauma abdomen and he was inpatient for
31 days, which in my opinion, rendered the petitioner incapable to do his
job, at least for 5 months, which has to be compensated under the head loss
of income during the period of treatment and accordingly, the petitioner
SCCH-1 17 MVC-6111/16 to 6113/16
has been awarded Rs.1,25,000/- under the head loss of income during
treatment for one month.
39. The petitioner contends that the injuries suffered by him on
account of the accident, rendered him disable to attend his work and
thereby he has suffered loss of future income. In this regard, the petitioner
has examined PW 4 - Dr.Sumit Talwar, who treated the petitioner while he
was inpatient and in his evidence, he says that the petitioner during
operation, it was found that there was severe injuries to the transverse
colon and the damaged part of the intestine (right hemicolectomy) was
removed and ileostomy was made and PW 4 has also deposed about the
subsequent admission of petitioner on 21.09.2016 and 29.09.2016 and the
petitioner was re-operated because of adhesions and internal hernia formed
as a consequence of the first injury/operation and he says that for
assessment of disability due to continuing pain, it is advisable to contact a
pain management specialist. In his cross-examination, he says that the
petitioner has suffered intra-abdominal injury. He says that he does not
know whether the petitioner has suffered any fractures. It is suggested to
him that the petitioner was having abdominal problem prior to the accident
and the intestine problem is not on account of the accident and the said
suggestion has been denied by him. He says that hernia was detected after
the second surgery and hence the 3rd surgery was conducted and the hernia
was corrected during the course of third surgery. He admits that after the
closure of illeostomy, he is normal for motion.
SCCH-1 18 MVC-6111/16 to 6113/16
40. Thus, according to PW 4, though the petitioner has suffered
abdominal injury, after closure of illeostomy, the petitioner is normal for
motion and for assessment of disability, the petitioner has to approach Pain
Management Specialist. In this regard, the petitioner has examined PW 6
Dr.Rangarajan, who is working in Vijayalakshmi Trauma Center,
Bengaluru and his evidence shows that he examined the petitioner on
04.03.2017 with post traumatic injury of the intestine due to RTA on
2.8.2016 and the present complaint of the petitioner is frequent purge with
abdominal pain to pass motion, but he could not be able to pass motion and
after the surgical treatment, heenocoloctomy and ileostomy in certain
sensitive individuals, any colectomy and ileostomy leads to post traumatic
shortening of the intestine and loss of certain amount of elasticity of
muscles which leads to permanent disability and this disability is 40% of
the affected part and 15% of the whole body. In his cross-examination, PW
6 says that he is an Orthopedic Surgeon and he has not treated the
petitioner. He says that ht has consulted the treated doctor and the said
doctor has deposed about the pain in abdomen. He admits that in his
affidavit he has not mentioned about the extent of shortening of the
intestine and loss of certain extent of elasticity muscles. It is suggested to
him that the petitioner is not having any difficulties and he is normal as
before the accident and there is no any disability to him and the said
suggestion has been denied by him.
41. From the evidence of PW 4 and 6, it is apparent that at the one
hand, PW 4, who is General and Minimal Access Surgery Consultant and
SCCH-1 19 MVC-6111/16 to 6113/16
treated the petitioner, states that it is only Pain Management Specialist,
who is capable to assess the disability and on the other, PW 6, who is an
Orthopedic Surgeon and who has not treated the petitioner, has assessed
the disability at 40% and 15% to whole body. Here, the point to be noted
is that PW 4 says that after the closure of illeostomy, the petitioner is
normal for motion, whereas, PW 6, in his evidence says that present
complaint of the petitioner is frequent purge with abdominal pain to pass
motion, but he could not be able to pass motion and after the surgical
treatment, heenocoloctomy and ileostomy in certain sensitive individuals,
any colectomy and ileostomy leads to post traumatic shortening of the
intestine and loss of certain amount of elasticity of muscles which leads to
permanent disability and this disability is 40% of the affected part and 15%
of the whole body. It has to be noted that PW 4 is the treated doctor,
whereas, PW 6 has not treated the petitioner and he is only an orthopedic
surgeon and PW 4 says that it is only Pain Management Specialist, who
can assess the disability. Under such circumstances, the evidence of PW 6
that the petitioner has suffered 40% disability and 15% disability to whole
body, is very difficult to be accepted. Another important fact to be noted is
that as per Ex.P.10(a) Salary Certificate, which is issued on 20.01.2017, it
says that the petitioner is working in the said firm 01.04.2013 till date.
That means, he is fit to continue his job, even after he has suffered the
injuries to abdomen and the petitioner has not suffered any disability on
account of the above injuries, which rendered him incapable to continue his
job or earn for his livelihood. However, the fact remains that as per
SCCH-1 20 MVC-6111/16 to 6113/16
Wound Certificate and Discharge Summary, the petitioner has suffered
intra abdominal injuries and was treated conservatively. Since the
petitioner has to bear the pain of the same throughout his life, I deem it just
and proper to award Rs.50,000/- under the head loss of amenities in life,
instead of loss of income on account of disability.
42. Thus, the petitioner has been awarded compensation under
various heads as under:-
Sl.No. Head of compensation Amount
Rs.
1. Injury, pain and suffering 75,000.00
2. Medical expenses 5,04,615.00
3. Conveyance and Attendant charges 40,000.00
4. Loss of income during treatment 1,25,000.00
5. Loss of amenities in life 50,000.00
Total 7,94,615.00
Accordingly issue No.3 in MVC No.6111/2016 is answered.
43. Issue No.3 in MVC No.6112/2016:- Petitioner in MVC
No.6112/2016 has been examined as PW 2. His evidence would go to
show that he sustained injuries in the accident and immediately after the
accident, he was shifted to Srinivasa Nursing Home, Hoskote wherein he
was given first aid and thereafter, he was shifted to Manipal Hospital,
wherein he was treated as inpatient. Ex.P.11 is the Wound Certificate
issued by Manipal Hospital which shows that the petitioner has suffered
the following injuries:-
1) Blunt injury abdomen with hemoperitonium and liver
laceration.
SCCH-1 21 MVC-6111/16 to 6113/16
44. The doctor who issued the above certificate has opined the injury
as grievous in nature. Apart from the Wound Certificate, the petitioner has
also produced Ex.P.6 - In Patient Bill issued by the said Hospital. The
petitioner has also produced Xerox Copy of the Discharge Summary and
upon perusal of the same, it shows that the petitioner, having sustained
blunt trauma abdomen with haemoperitoneum secondary to segment 2 & 3,
liver laceration, he was admitted and treated by laparoscopy with peritoneal
lavage on 03.08.2016. The petitioner has also examined Dr.Sumit Talwar,
Consultant, General and Minimal Access Surgery, Manipal Hospital,
wherein the petitioner was treated as inpatient, who in his evidence as PW
4, has reiterated about the nature of injuries sustained by the petitioner and
the treatment given to him. As per the medical records, the petitioner was
treated as inpatient from 02.08.2016 to 06.08.2016 for 5 days. As against
the evidence placed on record regarding the injuries suffered by the
petitioner and the treatment given to him in the form of oral as well
documentary evidence, the respondent No.1, the owner of the mini bus and
the respondent No.2 - Insurer of the same have not put forward any contra
evidence in the form of either oral or documentary. Thus, having regard to
the fracture and that he was inpatient for a considerable period of time, he
has been awarded Rs.50,000/- under the head injury pain and suffering.
45. So far as medical expenses are concerned, as per Ex.P.12 Series, the
petitioner has produced 2 medical bills amounting to Rs.1.90.376/-. I have
gone through the bills produced by the petitioner. In his cross-
examination, he admits that he is a government school teacher and he
SCCH-1 22 MVC-6111/16 to 6113/16
volunteers that he is having the benefit of medical imbursement, however,
he volunteers that he has not availed the said benefit and he can get the
letter regarding medical reimbursement. It is suggested to him that he has
got the benefit of medical reimbursement to the extent of Rs.1,85,000/- and
the said suggestion has been denied by him. Though an attempt is made to
show that medical bills are created for the purpose of this case, but the
same has been denied by PW 2. Thus, considering the gravity of the injury
and the period of treatment, the amount shown in these bills cannot be
doubted. As such, he has been awarded Rs.1,90,376/- under the head
medical expenses.
46. Immediately after the accident, the petitioner was shifted to
Srinivasa Nursing Home, Hoskote where he was treated conservatively and
thereafter, he was shifted to Manipal Hospital, Bengaluru wherein the
petitioner was treated as inpatient for 5 days. Having regard to the nature
of the injuries, it was inevitable for the petitioner to engage private vehicle
for his conveyance. Considering the same, the petitioner has been awarded
Rs.10,000/- under the head conveyance charges and attendant charges.
47. It is the case of petitioner that he was aged 50 years and working
as Assistant Master at Government School and getting a salary of
Rs.20,000/- per month. Petitioner went on record to depose that during the
period of treatment, he has suffered loss of income. So far as age of the
petitioner is concerned, the petitioner has produced copy of the Salary
Certificate, though the same is not marked, but on perusal of the same, it
SCCH-1 23 MVC-6111/16 to 6113/16
reveals his date of birth as 01.06.1966 and the accident having occurred on
02.08.2016, it can be said that he was running 51 years. Further, the said
document reveals that he was having a gross salary of Rs.33,956/- and after
deduction of professional tax, he was having a salary of Rs.33,756/-. The
petitioner though contends that he has suffered loss of income during the
period of treatment, but to substantiate the same, no evidence is produced.
But, as discussed above and as per the medical records, it is clear that the
petitioner has suffered blunt trauma abdomen with hemoperitonium and he
was inpatient for 5 days, which in my opinion, rendered the petitioner
incapable to do his job, at least for a month, which has to be compensated
under the head loss of income during the period of treatment and
accordingly, the petitioner has been awarded Rs.33,756/- under the head
loss of income during treatment for one month.
48. The petitioner contends that the injuries suffered by him on
account of the accident, rendered him disable to attend his work and
thereby he has suffered loss of future income. In this regard, the petitioner
has examined PW 4 - Dr.Sumit Talwar, who treated the petitioner while he
was inpatient and in his evidence, he says that the petitioner during
operation, it was found that there was segment 2 ad 3 liver laceration which
was not actively bleeding and there was moderate amount of blood in the
peritoneum and he says that for assessment of disability due to continuing
pain, it is advisable to contact a pain management specialist. In his cross-
examination, he says that the injury to segment 2 and 3 liver laceration is
on account of accidental injuries and there are no cut injuries and the
SCCH-1 24 MVC-6111/16 to 6113/16
segment 2 and 3 liver laceration is healed. Thus, according to PW 4,
though the petitioner has suffered intra abdominal injury, which was healed
and for assessment of disability, the petitioner has to approach Pain
Management Specialist. In this regard, the petitioner has examined PW 6
Dr.Rangarajan, who is working in Vijayalakshmi Trauma Center,
Bengaluru and his evidence shows that he examined the petitioner on
04.03.2017 with post traumatic pain in abdomen and loss of appetite due to
RTA on 2.8.2016 and on examination, he was suffering from laceration of
liver which affects the production of enzymes and in turn affect the
appetite and painable which leads to permanent disability and this
disability is 20% of the affected part and 7% of the whole body. In his
cross-examination, PW 6 says that he is an Orthopedic Surgeon and he has
not treated the petitioner. He says that he has assessed the disability as a
general surgeon and he is having 7% disability to whole body. He admits
that in Ex.P.27, he has not whispered anything about the disability.
49. From the evidence of PW 4 and 6, it is apparent that at the one
hand, PW 4, who is General and Minimal Access Surgery Consultant and
treated the petitioner, states that it is only Pain Management Specialist,
who is capable to assess the disability and on the other, PW 6, who is an
Orthopedic Surgeon and who has not treated the petitioner, has assessed
the disability at 20% and 7% to whole body. Here, the point to be noted is
that PW 4 says that the segment 2 and 3 liver laceration is healed, whereas,
PW 6, in his evidence says that live injury affects the production of
enzymes and appetite and this disability is 20% of the affected part and 7%
SCCH-1 25 MVC-6111/16 to 6113/16
of the whole body. It has to be noted that PW 4 is the treated doctor,
whereas, PW 6 has not treated the petitioner and he is only an orthopedic
surgeon and PW 4 says that it is only Pain Management Specialist, who
can assess the disability. Under such circumstances, the evidence of PW 6
that the petitioner has suffered 20% disability and 7% disability to whole
body, is very difficult to be accepted. Another important fact to be noted is
that the petitioner is continuing his job even after the said injury. That
means, he has not suffered any loss of income on account of disability.
However, the fact remains that as per Wound Certificate and Discharge
Summary, the petitioner has suffered intra abdominal injuries and was
treated conservatively. Since the petitioner has to bear the pain of the same
throughout his life, I deem it just and proper to award Rs.20,000/- under
the head loss of amenities in life, instead of loss of income on account of
disability.
50. Thus, the petitioner has been awarded compensation under
various heads as under:-
Sl.No. Head of compensation Amount
Rs.
1. Injury, pain and suffering 50,000.00
2. Medical expenses 1,90,376.00
3. Conveyance and Attendant charges 10,000.00
4. Loss of income during treatment 33,756.00
5. Loss of amenities in life 20,000.00
Total 3,04,132.00
Accordingly issue No.3 in MVC No.6112/2016 is answered.
51. Issue No.3 in MVC No.6113/2016:- Petitioner in MVC
No.6113/2016 has been examined as PW 3. His evidence would go to
SCCH-1 26 MVC-6111/16 to 6113/16
show that he sustained injuries in the accident and immediately after the
accident, he was shifted to Srinivasa Nursing Home, Hoskote wherein he
was given first aid and thereafter, he was shifted to East Point Hospital,
wherein he was treated as inpatient. Ex.P.14 is the Wound Certificate
issued by East Point Hospital which shows that the petitioner has suffered
the following injuries:-
1) Blunt force injury on chest,
2) Fracture of right ribs
3) Fracture of the T12 vertebrae body.
52. The doctor who issued the above certificate has opined the injuries
as grievous in nature. Apart from the Wound Certificate, the petitioner has
also produced Ex.P.15 - Discharge Summary issued by the said Hospital
and upon perusal of the same, it shows that the petitioner, having sustained
chest injuries, was admitted and treated as inpatient from 02.08.2016 to
04.08.2016. The petitioner has also examined Dr.Nirmal Kumar R.,
Casualty Medical Officer, East Point Hospital, wherein the petitioner was
treated as inpatient, who in his evidence as PW 5, has reiterated about the
nature of injuries sustained by the petitioner and the treatment given to
him. As per the medical records, the petitioner was treated as inpatient
from 02.08.2016 to 04.08.2016 for 3 days. As against the evidence placed
on record regarding the injuries suffered by the petitioner and the treatment
given to him in the form of oral as well documentary evidence, the
respondent No.1, the owner of the mini bus and the respondent No.2 -
SCCH-1 27 MVC-6111/16 to 6113/16
Insurer of the same have not put forward any contra evidence in the form
of either oral or documentary.
53. So far as medical expenses are concerned, as per Ex.P.17 Series, the
petitioner has produced 17 medical bills amounting to Rs.12,534/-. I have
gone through the bills produced by the petitioner and found nothing to
disbelieve the same. Thus, considering the gravity of the injury and the
period of treatment, the amount shown in these bills cannot be doubted.
54. Immediately after the accident, the petitioner was shifted to
Srinivasa Nursing Home, Hoskote where he was treated conservatively and
thereafter, he was shifted to East Point Hospital wherein the petitioner was
treated as inpatient for 3 days. Having regard to the nature of the injuries,
it was inevitable for the petitioner to engage private vehicle for his
conveyance. Considering the same, the petitioner has to be awarded
compensation for conveyance charges and attendant charges and other
miscellaneous.
55. It is the case of petitioner that he was aged 45 years and working as
Advocate and Counselor at District Legal Services Authority and earning
of Rs.25,000/- per month. Petitioner went on record to depose that during
the period of treatment, he has suffered loss of income. But, as far as age
and avocation of the petitioner is concerned, there is not evidence on record
except the oral say of the petitioner. On perusal of the medical records,
they show the age of the petitioner as 45 years. Further, the petitioner in
the petition has shown his age as 45 years. The petitioner having
contended that he is an Advocate has not produced any evidence in that
SCCH-1 28 MVC-6111/16 to 6113/16
regard. Thus, considering the same and in the absence of any proof
regarding his avocation and income, I deem it just and proper to take his
income as Rs.8,000/- per month.
56. The petitioner though contends that he has suffered loss of
income during the period of treatment, but to substantiate the same, no
evidence is produced. But, as discussed above and as per the medical
records, it is clear that the petitioner has suffered blunt force injury on
chest, fracture of right ribs and fracture of T12 vertebrae body and he was
inpatient for 3 days, which in my opinion, rendered the petitioner incapable
to do his job, at least for a month, which has to be compensated under the
head loss of income during the period of treatment.
57. The petitioner contends that the injuries suffered by him on
account of the accident, rendered him disable to attend to his work and
thereby he has suffered loss of future income. In this regard, the petitioner
has examined PW 4 - Dr.Sumit Talwar, who treated the petitioner while he
was inpatient and in his evidence, he says that the petitioner had blunt force
injury on chest, fracture of III and IV ribs and fracture of T12 vertebral
body and now the petitioner is suffering from chest pain at fracture site. In
his cross-examination, nothing is brought about to discard his evidence.
The petitioner has also examined PW 6 Dr.Rangarajan, who is working in
Vijayalakshmi Trauma Center, Bengaluru and his evidence shows that he
examined the petitioner on 10.03.2017 with the history of road traffic
accident on 2.8.2016 and developed pain over the back portion of the
lumboehoracic region and complains shooting pain on long standing in the
SCCH-1 29 MVC-6111/16 to 6113/16
court hours as an Advocate, the pain is shooting pain over the lower limbs
and he cannot lift heavy objects and feels comfortable while sleeping and
thus he has assessed the permanent disability at 30% of the affected part
and 10% of the whole body. In his cross-examination, PW 6 says that he is
an Orthopedic Surgeon and he has not treated the petitioner. He says that
he has assessed the disability as a general surgeon. The petitioner was not
subjected to surgery in respect of T12 vertebra. He says that he has
assessed the disability only in respect of thoracic bone fracture and not in
respect of fracture of ribs. He admits that in Ex.P.26, he has not whispered
anything about the disability.
58. From the evidence of PW 5 and 6, it is apparent that at the one
hand, PW 4, who is General and Minimal Access Surgery Consultant and
treated the petitioner and he has only deposed about the injury and
treatment and not deposed about the disability and on the other, PW 6, who
is an Orthopedic Surgeon and who has not treated the petitioner, has
assessed the disability at 30% and 10% to whole body. Here, the point to
be noted is that PW 4 no where says about the disability, whereas, PW 6, in
his evidence says that the disability is 30% of the affected part and 10% of
the whole body. It has to be noted that PW 4 is the treated doctor, whereas,
PW 6 has not treated the petitioner and he is only an orthopedic surgeon.
Under such circumstances, the evidence of PW 6 that the petitioner has
suffered 30% disability and 10% disability to whole body, is very difficult
to be accepted. Another important fact to be noted is whether the petitioner
is continuing his job or not is not disclosed. That means, he has not
SCCH-1 30 MVC-6111/16 to 6113/16
suffered any loss of income on account of disability. However, the fact
remains that as per Wound Certificate and Discharge Summary, the
petitioner has suffered fracture of ribs and T.12 vertebrae and was treated
conservatively. Since the petitioner has to bear the pain of the same
throughout his life, I deem it just and proper to award some compensation
under the head loss of amenities in life, instead of loss of income on
account of disability.
59. Thus, considering the pain and suffering on account of the injuries,
period of treatment, amount spent for treatment, loss of income during
treatment, and loss of amenities in life, I deem it just and proper to award
Rs.1,00,000/- as global compensation. Accordingly issue No.3 in MVC
No.6113/2016 is answered.
60. So far as liability to pay compensation amount is concerned, admittedly,
the respondent No.1 is the owner and the respondent No.2 is the insurer of the
mini bus and hence, both are jointly and severally liable to pay the compensation,
awarded as above, to the petitioners.
61. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal
Council of Delhi Vs. Association of Victims of Uphaar Tragedy), the Supreme
Court has held that the Court has to take into account the rate of interest of the
nationalized bank and the present day cost of living and thereby awarded, interest
on the compensation amount at 9% p.a. I have no reasons to deviate from the
said view of the Apex Court. Accordingly, interest on compensation amount is
awarded at 9% p.a. Accordingly, issue No.3 is answered.
62. Issue No.4 : In the result, I proceed to pass the following:-
SCCH-1 31 MVC-6111/16 to 6113/16
ORDER
MVC 6111/2016 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.7,94,615/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. The respondent No.2 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Considering the age of the petitioner as 62 years, entire compensation amount with accrued interest is ordered to be released to the petitioner.
MVC 6112/2016 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.3.04,132/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. The respondent No.2 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount so awarded, 50% with proportionate interest is ordered to be deposited in the name of the petitioner for a period of 3 years in any nationalised/scheduled bank of his choice and the balance amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity. MVC 6113/2016 The petition is partly allowed with costs. The petitioner has been awarded compensation of Rs.1,00,000/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents No.1 and 2 jointly and severally. The respondent No.2 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
SCCH-1 32 MVC-6111/16 to 6113/16Entire compensation amount with accrued interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/- in each case.
Original of the judgment shall be kept in MVC No.6111/2016 and a copy of the same be retained in other cases.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced by me in Open Court on 06.05.2017) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURE Witnesses examined on behalf of the petitioner:
P.W.1: Giriraju P.W.2: N.M.Rajanna P.W.3:Rajanna P.W.4:Dr.Sumit Talwar P.W.5: Dr.Nirmal Kumar R., P.W.6: Dr.Rangarajan Witnesses examined on behalf of the respondents:Nil Documents marked on behalf of the petitioners:
Ex.P.1 : Certified copy of FIR Ex.P.2 : Mahazar Ex.P.3 : IMV Report Ex.P.4 : Charge Sheet Ex.P.5 : Wound Certificate Ex.P.6 to 8: 3 Discharge Summaries Ex.P.9: Medical bills Ex.P.10: Prescriptions Ex.P.10(a): Salary Certificate Ex.P.11: Wound Certificate Ex.P.12: 2 Medical Bills Ex.P.13: 6 Prescriptions Ex.P.14: Wound Certificate Ex.P.15: Discharge Summary Ex.P.16:CT Scan Report Ex.P.17: 17 Medical Bills Ex.P.18: 13 Prescriptions Ex.P.19:2 X rays Ex.P.20:CT Scan Films SCCH-1 33 MVC-6111/16 to 6113/16 Ex.P.21: IP Record Ex.P.22: Attested copy of Discharge Summary Ex.P.23:Authorisation Letter Ex.P.24:Case Sheet Ex.P.25 to 27:3 OPD Slips Ex.P.28: X ray Ex.P.29: Certified copy of Order Sheet in CC No.1708/2016 Documents marked on behalf of the respondents: Nil (H.P.SANDESH) MEMBER, PRL.M.A.C.T