Bangalore District Court
In Mvc.No.7695 Of 18 vs In Both The Cases on 28 September, 2020
BEFORE THE MOTOR VEHICLES ACCIDENT CLAIMS
TRIBUNAL, BENGALURU (SCCH.2).
DATE: THE 28th DAY OF SEPTEMBER 2020
PRESENT: Smt. K. UMA., B.A.L.,LL.B.,.
VI Addl. Judge
Court of Small Causes,
& ACMM, Bengaluru.
M.V.C.No.7695 of 18
Clubbed With
MVC.No.693 of 19
PETITIONER: In MVC.No.7695 of 18:
Sri. Sreehari.K,
S/o M.Rajendran Nair,
Aged about 22 years,
R/at No.1786, 21st Main,
Garden Layout, HSR Sector II,
Bengaluru-560102.
Permanent Address:
Sivahari, Mavinakkal, Bedadka,
Kundamkuzhy, Kasargod,
Kerala-671541.
In MVC.No.693 of 19:
Sri. Rajendran Nair.M,
S/o Kumaran Nair,
Aged about 55 years,
R/at Shivahari, Mavinakkal,
Bedadka, Kundamkuzhy,
Kasargod, Kerala-671541.
(By Sri.R.Venkatesha Naidu,
Advocate.)
SCCH-2 2 MVC. 7695/18 & 693/19
Vs.
RESPONDENTS: In both the cases:
1. Sri.Sathis.J.V,
S/o.J.Nageswara Rao,
No.29, Flat No.3, 11th Cross,
1st Block, Akshayanagar,
Ramamurthynagar,
Bengaluru-560016.
(Ex-parte)
2. Bajaj Allianz General
Insurance Co. Ltd.,
Golden Heights, 4th Floor,
No.1/2, 59th 'C' Cross,
4th 'M' Block, Rajajinagar,
Bangalore-560 010.
(Policy No.OG-19-1701-1801-
00005862,
Valid from 15.05.2018 to 14.05.2019)
(By Sri.S. Maheswara, Advocate)
-o0o-
COMMON JUDGMENT
These petitions' have been filed under Sec.166 of M.V.Act,
1989 against respondents, claiming compensation on account of
injuries sustained by the petitioner in M.V.C.7695/2018 and
the damage of petitioner's vehicle in M.V.C.693/2019 in a motor
SCCH-2 3 MVC. 7695/18 & 693/19
vehicle accident. These two petitions are taken up for disposal
by way of common judgment, since both the cases are clubbed
as the cause of action to file petitions is out of same road traffic
accident.
2. The common facts in both the petition's in nutshell
are that:
On 26.08.2018 at about 5.30 p.m., the petitioner Sreehari
K., was riding the motor cycle bearing Reg.No.KA-14-Q-3230
from north to south direction at the junction of 16th Main Road,
5th 'A' Cross, BTM 2nd Stage, Bangalore at that time, a Maruthi
Ritz Car bearing Reg.No.KA-03-MS-2054 driven by its driver in a
rash and negligent manner endangering to human life with a
high speed from east to west direction on 5th 'A' Cross and
dashed against the above said motor cycle. As a result of which,
the petitioner Sreehari K. sustained grievous injuries to his left
leg and other parts of the body and the above said motor cycle
was badly damaged.
3. Immediately after the accident, the Sreehari K. shifted
to St. John's Medical College Hospital, Bangalore, wherein he
SCCH-2 4 MVC. 7695/18 & 693/19
was admitted as an inpatient, undergone surgery with implants
insitu to his left lower limb and discharged on 31.08.2018 and
later he also took treatment at Krishna Hospital, Kasargod,
Kerala and spent Rs.2,00,000/- towards medicines, hospital
charges, attendant charges, food, nourishment, conveyance and
other incidental charges, transportation charges etc. The Mico
Layout Police have registered a case in Crime No.37/2018 under
Sec.279, 337 and 338 of IPC,Sec.134 (A & B) r/w 187 of M.V.Act
against the driver of said Car.
4. Prior to the accident, the petitioner in MVC
No.7695/2018 - Sreehari K., was hale and healthy and he was
studying 1st year MBA at GEMSB School, Bangalore and actively
participating in sports and cultural activities earlier to the
accident. Due to accidental injuries, he is unable to concentrate
on his studies and unable to attend to the classes of 1st year
MBA regularly and hence he could just passed in 1st semester of
1st year MBA. He is suffering from acute pain over his left leg
and not able to do any normal routine activities.
SCCH-2 5 MVC. 7695/18 & 693/19
5. The petitioner in M.V.C.693/2019 was got repaired
his motor cycle at Moto World, Bangalore and he has spent
Rs.20,000/- for the same. He was a teacher at Chattanchal
Higher Secondary School, Kasaragod, Kerala and getting
monthly salary of Rs.70,000/- and used to contribute the same
for the maintenance of his family. Due to damage of his motor
cycle he was depending on other mode of transportation to go to
his work place and also for his personal work until his motor
cycle was repaired and as such he had spent a sum of
Rs.20,000/- towards transportation charges during his motor
cycle's repair period.
6. Both respondent No.1 and 2 being the R.C. owner
and insurer of the said Car which caused the accident, are
jointly and severally liable to pay compensation to both the
petitioners. As such, the petitioner in MVC No.7695/2018
claims compensation of Rs.10,00,000/- and the petitioner in
MVC No.693/2018 claims compensation of Rs.75,000/-, from
the respondents with costs and interest from the date of filing of
SCCH-2 6 MVC. 7695/18 & 693/19
the petition till realization. On the above grounds, the
petitioners have prayed for allowing the petitions.
7. In pursuance of service of notice in both the cases
respondent No.1 remained absent and he has been placed Ex-
parte and respondent No.2 appeared before the court through
Counsel and filed objection statement.
8. In the written statement, the respondent No.2 has
denied all the averments made in the petition. The 2nd
respondent has admitted the issuance of insurance policy to the
car bearing Reg.No.KA-03-MS-2054 and liability to indemnify
the 1st respondent is subject to terms and conditions of the
policy, provisions of M.V.Act, valid and effective driving licence
held by the driver of car, valid R.C., Permit and F.C. and also
subject to the confirmation of Section 64VB of the Insurance
Act. It had contended that the owner of vehicle has not complied
Section 134 (C) of M V Act, 1988 and the jurisdictional Police
have not complied with provision of 158(6) of IMV Act. Further,
it had denied the rash and negligent driving by the driver of the
SCCH-2 7 MVC. 7695/18 & 693/19
car and contended that the car bearing Reg.No.KA-03-MS-2054
was not at all involved in the accident and the petitioner
Sreehari K. was solely responsible for the accident.
9. It is contended that, the alleged accident took place
on 26.08.2018, however the complaint was lodged on
27.08.2018 after lapse of one day from the date of accident by
falsely implicating the car bearing Reg.No.KA-03-MS-2054 by
the petitioner in colluding with the owner of said vehicle and not
assigned any valid reason for the same. Further stated that, on
the date of accident the petitioner was not wearing the helmet
thereby violating Section 129 of M.V. Act and the driver of the
car bearing Reg.No.KA-03-MS-2054 was not holding valid and
effective driving licence as on the date of accident. Thereby the
insured committed breach of terms and conditions of the policy.
Further it had denied the age, loss of income, nature of injuries,
nature of treatment and also amount spent towards medicines
by the petitioner Sreehari K., and amount spent towards motor
cycle repair charges by the petitioner in M.V.C.693/2019.
Further, the Respondent No.2 has sought permission to contest
SCCH-2 8 MVC. 7695/18 & 693/19
the case under Section 170 of IMV Act. Except the above said
contentions all other averments stated in the petition's are
denied by this respondent in toto and hence, prayed for
dismissal of both the petitions.
10. On the above pleadings the following common
issues are framed.
Common Issues in both the cases
1. Whether petitioner in MVC No.7695/2018
proves that, he has sustained injuries on
account of rash and negligent driving of Car
bearing Reg.No.KA-03-MS-2054 by its driver as
contended in the petition?
2. Whether petitioner in MVC No.693/2019 proves
that, on 26-08-2018 at about 5.30 P.M., while
his son Sreehari was riding his Motor Cycle
bearing Reg.No.KL-14-Q-3230, at the junction of
16th Main Road and 5th 'A' Cross, Bangalore, at
that time a car bearing Reg.No.KA-03-MS-2054
driven in a rash and negligent manner and
dashed the motor cycle rode by Sreehari and
caused damages to the same as contended in
the petition?
3. Whether the Petitioners prove that they are
entitled for compensation? If so, to what extent
and from whom?
SCCH-2 9 MVC. 7695/18 & 693/19
4. What Order or Award?
11. It is to be noted that both the petitions were
clubbed together and common evidence is recorded in MVC
No.7695/18.
12. In MVC.No.7695/18 the petitioner got examined
himself as PW-1 and Exs.P.1 to Ex.P.16 documents were
marked and the petitioner in MVC.No.693/2019 has got
examined himself as PW2 and Ex.P.17 to Ex.P.21 were marked.
Mr. Arul Raj Y, MRD of St. John's Medical College Hospital,
Bengaluru, has got examined as P.W.3 and Ex.P.22 to Ex.P.24
documents were marked. Dr.S.U.Shivaprakash an Orthopedic
Surgeon examined as P.W.4 and Exs.P.25 and Ex.P.26
documents were marked.
13. The respondent No.2, has got examined Mr. Arul
Raj Y, MRD of St. John's Medical College Hospital, Bengaluru as
RW1 and Ex.R.1 to Ex.R.3 documents were marked.
14. Heard arguments on both sides.
SCCH-2 10 MVC. 7695/18 & 693/19
15. The learned counsel for Petitioner has also relied
on the following list of citations in support of the case.
• 2014 (3) AKR 826
Shivamurteppa Vs- The Managing Director, NEKRTC
Central Office, Gulbarga
• 2005 ACJ 644
M.V. Chowdappa Vs. Mohan Breweries & Distilleries
Ltd., and another
• 2012 ACJ 1459
Manoj Rathaur Vs. Anil Raheja and Others
• 2018 ACJ 1020
ICICI Lombard General Insurance Co. Ltd., Vs. Ajay
Kumar Mohanty and Another
• 2015 ACJ 684
National Insurance Co. Ltd., Vs. Hazra Begum and
Others.
16. My findings on the above Common issues are as
follows:
Issue No.1 In the Affirmative
Issue No.2 In the Affirmative
Issue No.3 Partly in the Affirmative
Issue No.4 As per final Order For the following :
SCCH-2 11 MVC. 7695/18 & 693/19
REASONS
17. ISSUE No.1 and ISSUE No.2: As these petitions'
are filed under Sec.166 of the M.V.Act, the burden is on the
Petitioners' in both the cases to prove that the alleged accident
took place because of the negligence on the part of driver of
Maruthi Ritz Car bearing Reg.No.KA-03-MS-2054.
18. The petitioner in MVC No.7695/18 has got himself
examined as PW-1 and the petitioner in MVC.No.693/19 has got
examined himself as PW2. Both PW-1 and PW-2, have filed
affidavit in lieu of examination-in-chief, and have categorically
deposed in consonance with the petition averments. PW-1 and
PW-2, have categorically deposed that on 26.08.2018 at about
5.30 p.m., P.W.1 was riding the motor cycle bearing Reg.No.KA-
14-Q-3230 from north to south direction at the junction of 16th
Main Road, 5th 'A' Cross, BTM 2nd Stage, Bangalore at that time,
a Maruthi Ritz Car bearing Reg.No.KA-03-MS-2054 driven by its
driver in a rash and negligent manner from east to west
direction on 5th 'A' Cross and dashed against the above said
SCCH-2 12 MVC. 7695/18 & 693/19
motor cycle. As a result of which, the petitioner/P.W.1 has
sustained grievous injuries and the motor cycle owned by PW-2
was badly damaged.
19. In chief examination, P.W.1 has produced True
copies of FIR, complaint, statement of P.W.1 given before the
police, spot mahazar, rough sketch of alleged place of accident,
IMV report and charge sheet, which are marked as Ex.P.1 to
Ex.P.6 and Ex.P.8, respectively.
20. The learned counsel for Respondent No.2 has
cross-examined PW-1 and P.W.2. On appreciation of evidence of
PW-1 deposed during cross-examination, PW-1 has deposed
that, his friend Swastik had lodged the complaint before the
police on 27.08.2018 and he had accompanied, when he had
been to take treatment in the hospital. PW-1 has deposed that,
he had informed to the doctor about the manner in which the
accident had occurred. The 2nd respondent has made the
suggestion to P.W.1 that, he himself fell down from the motor
cycle and the car did not hit him, but in order to get
SCCH-2 13 MVC. 7695/18 & 693/19
compensation himself and the owner of the car colluded
together and created false documents, which is denied by P.W.1.
With respect to negligent aspect, no suggestions have been
made to P.W.2 during cross-examination. All further possible
suggestions have been denied by these witnesses.
21. The 1st respondent has examined the RMD of St.
John's Medical College Hospital as RW-1. RW-1 apart from
producing the documents such as Authorization letter, true
copy of police intimation, MLC Register extract as per Ex.R.1 to
Ex.R.3 has deposed that, as per Ex.P.3 details of history of
accident was strike off and overwritten and the vehicle number
is not mentioned in Ex.P.3. R.W.1 has been cross-examined by
the petitioner, wherein RW-1 has deposed that, he was not
present at the time writing history of accident in MLC and which
is entered by the duty doctor. RW-1 has deposed that he
maintains the records sent to his department and he is not
aware of the contents of the documents. In further cross-
examination, RW-1 has deposed that as per MLC-Ex.R3, it is
SCCH-2 14 MVC. 7695/18 & 693/19
mentioned as "skid and fall due to hit by a car while he was
riding bike" and the word skid is striked.
22. On appreciation of the oral evidence PW-1 and
PW-2, coupled with documentary evidence placed on record, it
depicts that, the occurrence of accident has been reported to the
jurisdictional police, as per First Information and based on the
information, FIR came to be registered as per Ex.P-1 and upon
investigation, the police have submitted Final Report to the
Jurisdictional Court as per Ex.P.8, against the driver of the
offending vehicle's i.e. Maruthi Ritz Car bearing Reg.No.KA-03-
MS-2054 for the offences P/U/S 279 and 338 of IPC and U/S
134 (a) & (b) and 187 of IMV Act.
23. On overall appreciation of evidence of PW-1 and
PW-2, in both the cases, it is evident on the face of records that
the alleged accident aroused due to the negligence on the part of
the driver of the offending vehicle. The 2nd respondent though
examined the RMD of St. John's Medical College Hospital
nothing has been elicited to speak about the mode of accident.
SCCH-2 15 MVC. 7695/18 & 693/19
Under these circumstances, the oral evidence of P.W.1 and
P.W-2 in both the cases and documentary evidence clearly
establishes that, the accident occurred due to rash and
negligent act of the driver of Maruthi Ritz Car bearing
Reg.No.KA-03-MS-2054 and as a result Petitioner in
M.V.C.7695/2018 has sustained injuries and the motor cycle of
the petitioner in M.V.C.693/2019 has been badly damaged. For
the aforesaid reasons, I answer Issue No.1 in the Affirmative
in both the cases.
ISSUE No.3:
24. MVC No.7695/2018: In view of my findings on Issue
No.1, the petitioner is entitled for compensation. The next
question would be what is the reasonable and just
compensation to which the petitioner is entitled. Therefore, let
me deviate to appreciate the medical evidence placed by the
petitioner. So also let me examine the avocation and income of
petitioner to award compensation.
SCCH-2 16 MVC. 7695/18 & 693/19
25. In chief examination P.W.1 has deposed that, he
had sustained left femur shaft fracture-distal 1/3rd, middle
1/3rd closed type, which is grievous in nature and other injuries
over the body. Further stated that, immediately after the
accident he was shifted to St. John's Medical College Hospital,
Bangalore, wherein he was admitted as an inpatient, and
undergone surgery with implants in situ and discharged on
31.08.2018. P.W.1 has deposed that, he has undergone regular
follow up treatment for a period of six months in the said
hospital and also taken treatment at Krishna Hospital,
Kasargod, Kerala. He has spent a sum of Rs.2,50,000/- towards
medicines, hospital charges, attendant charges, food,
nourishment and conveyance charges and other incidental
charges.
26. On appreciation of evidence of PW1 deposed
during cross examination by the respondent counsel, it
indicates that, PW1 has immediately admitted to St. John's
Medical College Hospital, Bengaluru and taken treatment for
about 6 days as he sustained fracture and he spent
SCCH-2 17 MVC. 7695/18 & 693/19
Rs.2,25,000/- for treatment. PW1 has deposed that, he has
stated the manner of accident to the doctor and his friend
Swasthik has lodged the complaint before the police. PW1 has
denied to the suggestion given to the effect that, he has not
undergone any surgery as he has sustained simple injuries and
not spent Rs.2,25,000/- towards treatment and the medical
bills produced by him are created. All further possible
suggestions with regard to medical bills and treatment
undergone by him have denied by this witness.
27. Further, the petitioner has got examined Mr. Arul
Raj Y., Medical Record Keeper Technician, St. John's Medical
College Hospital, Bengaluru, as PW-3. In chief examination
affidavit, PW-3 has produced Inpatient and Outpatient Record,
C.D. and X-ray pertaining to petitioner and Authorization letter,
which are marked at Ex.P.22 to Ex.P.24. PW-3 has been cross-
examined by the 2nd respondent's counsel.
28. The petitioner has got examined Dr. S.U.
Shivaprakash, Consultant Orthopedic Surgeon at Prime
SCCH-2 18 MVC. 7695/18 & 693/19
Hospital, Bengaluru, as PW-4, who has assessed the disability
of the petitioner, who filed affidavit in lieu of examination in-
chief. In chief examination affidavit, PW-4 has deposed that, the
petitioner has admitted in hospital as inpatient for treatment of
accidental injuries and has taken follow up treatment. P.W.4
deposed that, on examination he found that, the petitioner
walking with limp, cannot walk faster and run, difficulty in
squatting, sitting cross leg, difficulty in climbing stairs, difficulty
in standing over the affected limb, healed scar glue teal area of
8 x 2 cm., tenderness with irregular thickness of glue teal
region, tenderness at left knee, wasting of left thigh muscles by
2.5 cms., compared to right limb. He has assessed total
disability of lower limb of petitioner is 56%, which is assessed
on 16/07/2019. PW-4 has also produced recent examination
clinical notes and one X-ray marked at Ex.P.25 and Ex.P.26.
29. PW-4 has been cross-examined by the learned
counsel for R-2, wherein PW-4 has deposed that, he is not a
treated doctor of the petitioner and after one year he has
assessed the disability. He has admitted that, the fracture
SCCH-2 19 MVC. 7695/18 & 693/19
sustained by the petitioner is united but the implants are not
removed, after removal of implants pain and restriction of
movements will be reduced. He has denied the suggestion that,
after completion of maximum treatment, the disability has to be
reduced and he has assessed premature disability. He has
further denied the suggestion that, after removal of implants if
the disability is assessed, the exact disability of the patient
would be known and as per gazette notification the existing
range of movements mentioned by him in chief-examination is
normal. He has further denied the suggestion that, if the
amputation is up to knee, the disability would be 60%. He has
given admission given to the effect that, the petitioner has
sustained closed fracture of femur and he has assessed 56% of
limb disability.
30. On further appreciation of the evidence of PW-4,
according to PW-4, he did not assess the disability on higher
side so as to help the petitioner, though in the gazette
notification it is mentioned that half of the limb disability has to
be converted to whole body. PW-4 has deposed that, by
SCCH-2 20 MVC. 7695/18 & 693/19
convention method he has mentioned 50% of limb disability to
the whole body. He has denied the suggestion given to the effect
that, the fracture is untied and there is no question of disability
to petitioner and he has stated Rs.50,000/- would be cost of
removal of implants. He has denied that, in order to help the
petitioner he has assessed the disability in higher side and
deposing falsely. PW-4 deposed that, he has referred the
documents with regard to treatment taken by the petitioner in
the previous hospital and he has clinically examined the
petitioner for assessment of disability. All further possible
suggestions have been denied by this witness.
31. In the case according to Petitioner he was
studying 1st year MBA at GEMS B School, Bangalore, at the time
of accident. On account of accidental injuries he is unable to
concentrate on his studies and unable to attend to the classes
on 1st year MBA regularly and hence he could just passed in 1st
semester of 1st year MBA. In order to substantiate his
contention, the Petitioner has produced notarized copies of
college ID card, S.S.L.C. Marks Card, PUC Marks Card, BCA
SCCH-2 21 MVC. 7695/18 & 693/19
Degree Certificate, 1st year MBA Marks Card, which are marked
at Ex.P.10 to Ex.P.14. These documents depict that, as on the
date of accident the petitioner is a student. Hence, the petitioner
comes under the category of self-employed person. As contented
by the petitioner, the injuries sustained by the petitioner would
affect his studies and to get employment on reputed firms.
32. On going through the decisions cited by the
petitioner's counsel and to the facts and circumstances of the
case, I deem it proper to state that the petitioner is a student
and has capacity to work after completion of studies. This
accident took place in the year 2018, considering the age and
education of the petitioner, it is just and proper to consider
notional income of the Petitioner as Rs.10,000/- P.M. for
calculation of quantum of compensation.
33. On appreciation of medical documents and the
evidence of petitioner, as appreciated supra, it is evident that
the Petitioner had sustained left femur shaft fracture - distal
1/3rd- middle 1/3rd closed type and took treatment as in patient
SCCH-2 22 MVC. 7695/18 & 693/19
from 26.08.2018 to 31.08.2018. This fact is clearly mentioned in
Ex.P.7 Wound Certificate and Ex.P.15 Discharge Summary
issued by St. John's Medical College Hospital, Bengaluru. It
appears the petitioner has taken the treatment for the injuries
sustained by him for a period of 6 days. The Petitioner was
hospitalized for a period of 6 days, if three months income is
awarded under the head of loss of income during laid up period
and rest period certainly it would meet the ends of justice.
Considering the above facts, I deem it just and reasonable to
grant for compensation of Rs.30,000/- under the head of loss
of income during the period of treatment.
34. On careful scrutiny of discharge summary and
medical bills produced by the petitioner at Ex.P.15 and Ex.P.16,
it appears that, the petitioner was an inpatient at St. John's
Medical College Hospital from 26.08.2018 to 31.08.2018. PW-1
has produced 8 medical bills amounting to Rs.89,255/-. These
bills are pertaining to the period of taking treatment as inpatient
by the petitioner, then I have to consider that the petitioner has
spent money to purchase drugs and other materials as
SCCH-2 23 MVC. 7695/18 & 693/19
prescribed by the doctor. It is relevant to note that, the
petitioner must have incurred expenses towards transportation
during the period of treatment. Considering all these aspects,
the petitioner is entitled for Rs.89,000/- charges towards
medical expenses and Rs.10,000/- towards transportation
charges.
35. It is relevant to note that the doctor, who assessed
the disability of the petitioner, in his evidence has deposed that,
on examination of petitioner he has assessed total disability of
left lower limb 56% and to the whole body it is about 28% and it
is permanent. It is relevant to note that, one year after the date
of accident and own admissions of PW-4 in cross-examination,
clearly indicates that, the fracture sustained by the petitioner is
united with in situ. The Petitioner suffers permanent physical
disability of left femur. Hence, I have to consider the disability to
an extent of 28 % to the whole body is on higher side, since the
age of the petitioner is 23 years and he can do sit and do office
work. Therefore, it is appropriate to consider 15% of disability
SCCH-2 24 MVC. 7695/18 & 693/19
to the whole body is appropriate and the same is sufficient for
calculation of quantum of compensation.
36. Coming to the question of quantum of
compensation to be assessed, according to the Petitioner, he
was aged 22 years at the time of the accident. In order to prove
his age, petitioner has produced notarized copy of D.L. and
SSLC Marks card. In the said documents, the date of birth of
the petitioner is mentioned as 18.08.1996, whereas the accident
was occurred on 26.08.2018. So, on the basis of the medical
documents, it is to be considered that, Petitioner was aged 22
years as on the date of the accident. As per the Sarla Varma's
Case, the proper multiplier applicable to the age group of 20 to
25 years is '18'. Hence, Loss of future earning capacity on
account of disability of petitioner would come
Rs.3,24,000/- (Rs.10,000/- x 12 x 18 X 15%/100).
37. It is relevant to note that the injuries sustained by
the petitioner is grievous in nature has deposed by him. PW-1
has deposed that, prior to the accident he was studying in 1st
SCCH-2 25 MVC. 7695/18 & 693/19
year MBA at GEMS B School, Bangalore and actively
participating in sports and cultural activities. On account of
accidental injuries, he is unable to concentrate on his studies
and unable to attend to the classes of 1st year MBA regularly
and hence he could just passed in 1st semester of 1st year MBA.
P.W.1 deposed that, due to accidental injuries, he is suffering
from acute pain over his left leg and also not able to do his
normal routine activities. He is difficulty in climbing stairs,
bearing weight and using Indian toilet and he is walking with
limp with difficulty. He is suffering from permanent disability
and in view of this his education career will be affected, unable
to do any work in future, marriage prospectus becomes very
bleak and as such he lost his future earning capacity. Injury
sustained by the petitioner will definitely cause permanent
disability through out his life and his services as deposed by the
doctor. The petitioner has also requires to remove the implants
and future treatment. Considering the nature of avocation of
petitioner and the injury sustained by him, I deem it proper to
award compensation of Rs.50,000/- under the head of pain
and sufferings; Rs.20,000/- each towards food and
SCCH-2 26 MVC. 7695/18 & 693/19
nourishment, for future medical treatment and Rs.20,000/-
towards loss of amenities.
38. The Petitioner is entitled for total compensation
Rs.5,64,000/- under the following heads:-
Sl. Head of Compensation Amount in Rs.
No.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
a) To treatment, hospitalization, 1,00,000-00
medicines, transportation.
(Rs.89,000/- + Rs.10,000/- =
Rs.99,000/- rounded off to
Rs.1,00,000/- )
b)nourishing food and 20,000-00
miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had she
not been injured, comprising:
a) Loss of earnings during period 30,000-00
of treatment
b) Loss of future earnings on 3,24,000-00
account of permanent disability
(Rs.10,000/- x 12 x 18 x 15%
/100 = 3,24,000/-)
3. Future medical expenses 20,000-00
SCCH-2 27 MVC. 7695/18 & 693/19
II. NON-PECUNIARY DAMAGES
(General Damages)
4. Damages for pain, suffering and 50,000-00
trauma as a consequence of the
injuries
5. Loss of amenities (and/or loss of 20,000-00
prospects of marriage)
6. Loss of expectation of life -
(shortening of normal longevity)
Total 5,64,000-00
39. MVC.NO.693/2019: In view of my findings on Issue
No.2, the petitioner is entitled for compensation. The next
question would be, what is the reasonable and just
compensation to which the petitioner is entitled. Therefore, let
me deviate to appreciate the evidence placed by the petitioner.
40. In chief examination P.W.2 has deposed that, in
the accident his motor cycle was badly damaged and he has
repaired the said vehicle at Moto World, Bengaluru and he has
spent Rs.15,941/- for the same. Further P.W.2 has deposed
that, he is a teacher at Chattanchal Higher Secondary School,
Kasargod, Kerala and getting a monthly salary of Rs.70,000/-
SCCH-2 28 MVC. 7695/18 & 693/19
and used to contribute the same for the maintenance of his
family. Due to damage caused to his vehicle he was depending
on other mode of transportation to go to his work place and also
for his personal work until his motor cycle was repaired and as
such, he had spent a sum of Rs.20,000/- towards
transportation charges.
41. During the cross-examination of respondent No.2,
P.W.2 has admitted that, his motor cycle was of the year 2014
and it is damaged as mentioned in the IMV report. Further
admitted that, as on the date of accident he had valid insurance
at United India Insurance Co., for his motor cycle and the said
policy is package policy. After the accident he had given
intimation to United India Insurance Co. Ltd., and the surveyor
of the said company had visited and inspected his vehicle about
the damages sustained in the accident. He has deposed that, he
did not remember what the assessment was made by the
surveyor of United India Insurance Co. Ltd. He has denied the
suggestion that, the United India Insurance Co. Ltd., had settled
his OD claim of his vehicle. He has denied that, the bills
SCCH-2 29 MVC. 7695/18 & 693/19
produced by him are created one, as per bills the other parts of
his vehicle are also repaired which are not damaged due to
accident. He has denied the suggestion that, he has falsely
deposed as to spent Rs.20,000/- for transportation during the
time of repair of vehicle.
42. On perusal of Ex.P.6 IMV Report, the damages to
the motor cycle has been mentioned as head light assembly,
front both indicators, front wheel mud guard, front fork
damaged. I have carefully perused the copy of charge sheet and
other documents produced by the petitioner. The contents of
charge sheet and photographs indicates that, the motor cycle
belonging to the petitioner was damaged. Further as per the
opinion of the IMV inspector this accident was not due to any of
the mechanical defects of the above said vehicle.
43. Now coming to the question of quantum of
compensation to be awarded, though this claim petition has
been filed by the petitioner seeking compensation for the
damages caused to his motor cycle, P.W.2 has produced
SCCH-2 30 MVC. 7695/18 & 693/19
Ex.P.17- notarized copy of R.C. Book, Ex.P.18 Insurance Policy,
Ex.P.19 2 photographs of the vehicle, Ex.P.19(a) C.D., Ex.P.20
motor cycle repair bills amounting to Rs.15,941/- and Ex.P.21
pay slip. It could be seen from the evidence of P.W.2 and as per
Ex.P.17 that, due to the said accident petitioner's vehicle was
badly damaged on front side and he has spent Rs.15,941/- for
repair work.
44. The petitioner has not examined any surveyor.
According to the petitioner he being a teacher and in the
absence of motor cycle, he hired another vehicle and used to
travel by spending Rs.20,000/-. The petitioner had lost the
other incidental charges of Rs.20,000/-. He has also suffered
mental agony on account of the motor cycle not been available
for his profession.
45. In view of all these facts, the Petitioner is entitled
for total compensation Rs.45,941/- under the following heads:-
SCCH-2 31 MVC. 7695/18 & 693/19
Sl. Head of Compensation Amount in
No. Rs.
1. Total pecuniary loss because of 15,941-00
the damage to the motor cycle.
2. Pecuniary loss due to 10,000-00
inconvenience for non availability
of the motor cycle for a period of
one month.
3. Incidental expenses. 10,000-00
4. Mental shock and physical pain. 10,000-00
Total 45,941-00
46. In so far as awarding interest on the compensation
amount is concerned, in a recent decision reported in 2018 ACJ
1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and
others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.28141-
42 of 2017 decided on 06.04.2018), wherein the Hon'ble
Supreme Court in para No.28 of the judgment held that,
"The appellant would also be entitled to
interest on the total amount of compensation at
the rate of 9 per cent per annum on the
compensation from the date of filing of the claim
petition till date of realization".
SCCH-2 32 MVC. 7695/18 & 693/19
In view of the principle laid in the above decision it is settled
principles of law that, while awarding interest on the
compensation amount, the Court has to take into account the
rate of interest on the Nationalized Bank. Hence, the rate of
interest at the rate of 9% p.a. cannot be said it is on higher side.
Accordingly, the Petitioners are entitled to interest at the rate of
9% p.a.
47. As discussed supra the alleged accident has been
occurred due to the rash and negligent driving of the offending
vehicle. Coming to the question of fixing the liability to pay the
compensation to the petitioner, Respondent No.2 being the
Insurance Company had issued policy in respect Maruthi Ritz
Car bearing Reg.No.KA-03-MS-2054. In this case, it is not in
dispute that, offending vehicle was not having valid insurance at
the time of the accident and the 2nd respondent admitted the
issuance of insurance policy in favour of respondent No.1,
which was valid and effective as on the date of the accident.
Accordingly, the Respondent No.1 being the RC owner and
Respondent No.2 being the insurer of the offending vehicle are
SCCH-2 33 MVC. 7695/18 & 693/19
jointly and severally liable to pay compensation to the
Petitioner's. However, Respondent No.2 has to indemnify
Respondent No.1. Accordingly, I answer Issue No.3 in partly
affirmative.
48. ISSUE No.4: On the basis of discussions made on
Issues Nos.1 and 2 in both the cases, I proceed to pass the
following:
::ORDER::
The petition's filed by the petitioners under Section 166 of MV Act in MVC Nos.7695/18 and 693/2019, are partly allowed with costs.
The Petitioners are entitled for the total Compensation in -
MVC:7695 /18 Rs.5,64,000/-
MVC.693/19 Rs. 45,941/-
with interest @ 9% P.A. thereon from the date of petition till realization is as follows:
The Respondent No.2 - Insurance company is liable to pay the compensation to the Petitioners in both SCCH-2 34 MVC. 7695/18 & 693/19 the cases and shall deposit the said amount within 60 days from the date of this order.
In the event of deposit out of total compensation awarded:
In MVC 7695/18, out of total compensation amount of petitioner 25% of the compensation amount shall be deposited in any of the nationalized or schedule banks of his choice for a period of 2 years and the remaining 75% of the compensation amount shall be paid to the petitioner through e-payment with due verification of bank account details.
In MVC 693/19, entire awarded amount of Petitioner is ordered to be released in his favour through e-payment with due verification of bank account details.
Advocates fee is fixed at Rs.1000/- in each case.
Draw up Award accordingly.SCCH-2 35 MVC. 7695/18 & 693/19
Keep the original of this judgment in MVC:7695/18 and copy there of in MVC:693/19.
(Dictated to the stenographer through online, corrected by me and then pronounced in open court on this the 28th day of September 2020).
(K.UMA ) VI Addl. Small Causes Judge & ACMM, Bengaluru.
ANNEXURE List of witnesses examined in both the cases:
PW.1 : Sreehari K. PW.2 : Rajendran Nair M. PW.3 : Arul Raj Y. PW.4 : Dr. S.U. Shivaprakash.
List of documents marked in both the cases:
Ex.P-1 : True copy of FIR
Ex.P-2 : True copy of Complaint
Ex.P-3 : True copy of Statement of Injured.
Ex.P-4 : True copy of Spot Mahazar.
Ex.P-5 : True copy of Rough Sketch of accident
place.
Ex.P-6 : True copy of IMV Report.
Ex.P.7 : True copy of Wound certificate.
Ex.P.8 : True copy of Charge sheet
SCCH-2 36 MVC. 7695/18 & 693/19
Ex.P-9 : Notarized copy of D.L. of petitioner.
Ex.P-10 : Notarized copy of ID card of petitioner. Ex.P-11 : Notarized copy of SSLC Marks sheet of petitioner.
Ex.P-12 : Notarized copy of PUC Marks card of petitioner.
Ex.P-13 : Notarized copy of BCA Degree certificate of petitioner.
Ex.P-14 : Notarized copy of 1st year MBA Marks Sheet of petitioner.
Ex.P-15 : Discharge summary of petitioner. Ex.P-16 : Medical bills 8 in numbers amounting to Rs.89,255/-.
Ex.P-17 : Notarized copy of RC book of motor cycle. Ex.P-18 : Notarized copy of Insurance policy of motor cycle.
Ex.P-19 : 2 Photographs of vehicle i.e., motor cycle. Ex.P-19a : CD of the photographs of motor cycle. Ex.P.20 : Motor cycle repair bill amounting to Rs.15,941/-.
Ex.P.21 : Pay Slip of P.W.2.
Ex.P.22 : Inpatient and outpatient record of P.W.1. Ex.P.23 : C.D. and X-ray of P.W.1. Ex.P.24 : Authorization letter of P.W.3. Ex.P.25 : Recent examination clinical notes of P.W.1 Ex.P.26 : 1 X-ray of P.W.1.SCCH-2 37 MVC. 7695/18 & 693/19
List of witnesses examined for respondents in both the cases:
R.W.1 : Mr.Arul Raj.
List of documents for respondents in both the cases :
Ex.R.1 : Authorization letter of R.W.1. Ex.R.2 : True copy of Police Intimation. Ex.R.3 : MLC Register Extract.
(K.UMA ) VI Addl. Small Causes Judge & ACMM, Bengaluru.
**