Bangalore District Court
G) The Petitioner Has Not Suffered Any ... vs No.1 To An Extent on 18 September, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 18th day of September, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B. (Spl.), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3451/2014
C.M.Manjula, ... PETITIONER
W/o Kempaiah,
Aged about 35 years,
Residing at No.3 & 4,
1st Cross, Kaveripura,
Nanda Gokula School Road,
Kamakshipalaya,
Bangalore-79.
(By Sri. B.K.Kumara, Adv.,)
V/s
1. The Manager, ...RESPONDENTS
ICICI Lombard General Insurance
Company Limited,
No.89, 2nd Floor, SVR Complex,
Madivala Main Road,
Koramangala,
Bangalore - 68.
(Insurer of offended Vehicle Tata Sumo
Bearing Registration No.KA-41-8501)
2. Mr.Srinivas.C.,
S/o Chikka Varadaiah,
Siddi Vinayaka Tours and Travels,
SCH-7 2 M.V.C.No.3451/2014
No.550, 10th Cross,
Sunkadakatte,
Vishwaneedam Post,
Bangalore-91.
(R.C. Owner of the offended vehicle Tata
Sumo Bearing Registration No. KA-41-
8501)
(R1- By Sri. B. Pradeep, Adv.,)
(R2- Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 8,00,000/- with interest at the rate of 12% and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 29.07.2014 at about 01.35 p.m., when she was crossing a road on Magadi Main Road, in front of Kamakshipalya Bus Stop, i.e., from North towards South very carefully, cautiously and observing all the traffic rules, at that time, one Tata Sumo bearing Registration No.KA-41-8501, driven by its driver at a very high speed in a rash and negligent manner so as to endangering to human life came from Summanahalli side towards Kamakshipalya and dashed against her. As a result, she fell down and sustained fracture of left leg both bone and other injuries all over the body.
SCH-7 3 M.V.C.No.3451/2014
b) Immediately after the accident, she was shifted to Madhu Hospital by the same Tata Sumo Driver, wherein, first- aid was given and then, she was shifted to ESI Hospital, Rajajinagar, wherein, she was treated, X-ray was taken and the said fracture and injuries were confirmed. The Doctor, who had treated her opinion that, she caused injuries permanent in nature and advise to undergo an operation. Due to non- satisfaction of treatment at ESI Hospital, she got discharged and admitted to Panacea Hospital for further treatment, wherein, she has treated as an inpatient, fresh X-ray was taken and the said fractures and injuries were confirmed and advise to undergo an operation. During the stay in the Hospital, she had operated and internal fixation was inserted to her fracture site and discharged with an advise to come for follow-up treatment. Still she is under treatment.
c) She had incurred huge amount for her treatment, conveyances and nourishment, etc., wherefore, she reserves her right to furnish additional information regarding permanent disability, future treatment and losses etc.,
d) Prior to accident, she was very hale and healthy and working at Indian Design Export Pvt. Ltd., Garments factory and earning a sum of Rupees 10,000/- + O.T. Rupees 2,000/-, totally, Rupees 12,000/- per month.
e) Due to these accidental injuries, she could not attend her work so far and she became permanent disabled. It SCH-7 4 M.V.C.No.3451/2014 is very difficult to lead a day to day life without sufficient income. Now, she is fully depending upon other in all day to day activities. Hence, she and her family members are put to great hardship and mental agony.
f) The Kamakshipalya Traffic Police have registered a case as against the driver of Tata Sumo bearing Registration No.KA-41-8501 for offences punishable under Section 279 and 338 of IPC. In turn, the Police have taken-up investigation and after investigation, the said Police have filed a charge sheet as against the driver. This accident happened due to sole, rash and negligent manner of the said Tata sumo by its driver.
g) At the time of accident, 1st Respondent was insurer and 2nd Respondent was R.C. Owner of the said Tata Sumo. Driver was in the course of employment under 2nd Respondent holding a valid and effective driving licence and therefore, both the Respondents are jointly and severally liable for payment of compensation. Hence, this Petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 20.03.2015 passed on I.A.No.II, the written statement filed by the Respondent No.1 is taken on file.
SCH-7 5 M.V.C.No.3451/2014
4. Though the notice was duly served on the
Respondent No.2, he was remained absent and hence, he is placed as exparte on 09.02.2015.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) It does not admit the issuance of the Insurance Policy to the TATA Sumo bearing Registration No.KA-41-8501 and liability to indemnify the 1st Respondent is not admitted.. The liability if any, is subject to the terms and conditions of the valid policy, provisions of M.V. Act, valid and effective driving licence held by the driver of Tata sumo, valid R.C. Permit, F.C and also subject to the confirmation of Section 64B of the Insurance Act. It seeks protection under Section 147 and 149(2) of M.V. Act.
b) The owner of the vehicle is duty bound to submit all vehicular documents, including driving licence before him as mandated under Section 134(c) of the Motor Vehicles Act. There is a clear violation of the provisions of law and contract of insurance.
c) As per Section 158(6) of the M.V. Act, 1988, it is a mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of information, but, the Kamakshipalya Traffic SCH-7 6 M.V.C.No.3451/2014 Police Station failed to forward the documents and not complied with the statutory demand.
d) It craves leave of this Hon'ble Court to grant permission under Section 170 of M.V. Act, if the owner of the vehicle fails to contest the proceedings as contemplated under Section 170 of M.V. Act.
e) The Petitioner herself was solely responsible for the accident and as such, the claim petition is liable to be dismissed for one's own negligence.
f) Without prejudice to the contentions taken above, the driver of the Tata Sumo bearing Registration No.KA-41-8501 was not holding a valid and effective driving licence as on the date of the accident and further was not qualified for holding or obtaining such driving licence and further not satisfied the requirement of the Rule 3 of the Central Motor Vehicles Rules, 1989. The Respondent No.2, knowingly fully well that, the driver did not possess a valid and effective driving licence and willfully entrusted the vehicle to the said driver, thereby, the owner of the vehicle committed breach of terms and conditions of the policy, hence, he is not liable to pay any compensation to the Petitioner.
g) The Petitioner has not suffered any injuries contended in the claim petition and the injuries suffered by her have not resulted in any disability and has not caused any SCH-7 7 M.V.C.No.3451/2014 financial loss. The Petitioner has not suffered any earning capacity.
h) In the event of this Hon'ble Tribunal granting compensation, the rate of interest prevailing in National Banks for fixed deposit of one year shall be the rate of interest and it cannot exceed more than 6% per annum in view of the decision rendered by the Hon'ble High Court of Karnataka in the case of Manavalagan V/s A.Krishnamurhty and Others, reported in ILR 2004 KAR 3268.
i) The quantum of compensation claimed by the Petitioner is exorbitant and fanciful.
j) The Petitioner is called upon to prove that, she has not filed any claim petition before any other Court/Tribunal/Forum or at any place. Hence, prayed to dismiss the claim petition with costs.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Tata Sumo bearing Registration No.KA-
41-8501 by its driver and in the said accident, she sustained injuries?
SCH-7 8 M.V.C.No.3451/2014
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
7. In order to prove her case, the Petitioner herself has been examined as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination- in-chief and has placed reliance upon Ex.P.1 to Ex.P.19. On the other hand, the Respondent No.1 has not adduced any evidence on his behalf.
8. Heard the arguments.
9. My answers to the above said Issues are as follows;
Issue No.1 : Partly in the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is entitled
for compensation of Rupees
99,334/- with interest at the
rate of 6% p.a. (excluding
future medical expenses of
Rupees 10,000/-) from the
date of the petition till the
date of payment, from the
Respondent No.1 to an extent
of 75%.
Issue No.3 : As per the final Order,
for the following;
SCH-7 9 M.V.C.No.3451/2014
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in her examination-in-chief that, on 29.07.2014 at about 01.35 p.m., when she was crossing the road on Magadi Main Road, in front of Kamakshipalya Bus Stop, i.e., from North towards South, very carefully, cautiously and observing all the traffic rules and at that time, one Tata Sumo bearing Registration No.KA-41-8501, driven by its driver at a very high speed, in a rash and negligent manner so as to endangering to human life came from Summanahalli side towards Kamakshipalya and dashed against her. She has further stated that, as a result, she fell down and sustained fracture of left leg both bone and other injuries all over the body and immediately after the accident, she was shifted to Madhu Hospital by the same Tata Sumo Driver, wherein, first-aid was given and then she was shifted to ESI Hospital, Rajajinagar, wherein, she was treated as an inpatient for 3 days. She has further stated that, X-ray was taken and the said fractures and injuries were confirmed. She has further stated that, this accident happened due to sole rash and negligent driving of the said offending vehicle, i.e., Tata Sumo Bearing Registration No.KA-41-8501 by its driver and in turn, the Kamakshipalya Traffic Police have registered a case as against the driver of the said Tata Sumo and in turn, the Police have taken-up investigation and after investigation, the Police have filed a charge sheet as against the driver of the said Tata Sumo.
SCH-7 10 M.V.C.No.3451/2014
11. No doubt, the P.W.1 in her cross-examination has stated that, she has lodged a complaint to the Police in respect of the alleged accident and immediately after the accident, she was shifted to Madhu Hospital.
12. To corroborate her oral version, the Petitioner has produced Ex.P1 FIR, Ex.P.2 Complaint, Ex.P.3 Crime Details Form, Ex.P.4 Spot Panchanama, Ex.P.5 Spot Hand Sketch, Ex.P.6 MVI Report, EX.P.7 Charge Sheet, Ex.P.8 Wound Certificate, Ex.P.9 OPD Slip, Ex.P.10 Discharge Summary and Ex.P.14 X-ray Films 3 in numbers.
13. Further, the Petitioner has examined the In-Charge Medical Record Officer of Panacea Hospital as P.W.3, who has produced Ex.P.19 Inpatient Record relating to the Petitioner and has stated that, the Petitioner was admitted in their Hospital on 31.07.2014 and discharged on 02.08.2014. He has further stated in his cross-examination that, the Petitioner had taken treatment in another Hospital before she was admitted in their Hospital.
14. The above said oral version of P.W.1 and the contents of Ex.P.1 to Ex.P.3 and Ex.P.7 to Ex.P.10 and Ex.P.14 disclosed that, due to very high speed, rash and negligent manner of driving of the Offending Tata Sumo bearing Registration No.KA-41-8501 by its driver itself, the said road traffic accident was taken place on 29.07.2014 at 1.35 p.m., which dashed to the Petitioner and due to which, she sustained SCH-7 11 M.V.C.No.3451/2014 one grievous injury and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the said offending Tata Sumo.
15. But, based on the above said evidence of P.W.1 and P.W.3 and contents of EX.P.1 to Ex.P.3, Ex.P.4 to Ex.P.10, Ex.P.14 to Ex.P.19, it cannot be believed and accept and come to the conclusion that, the entire negligence is on the part of the offending Tata Sumo bearing Registration No.KA-41-8501 and there was no negligence on the part of the Petitioner in the said road traffic accident, as, the P.W.1 in her cross-examination itself has clearly admitted that, when she was crossing the Magadi Main Road, the accident was taken place and the contents of Ex.P.5 Spot Hand Sketch are true and correct and pedestrian cross is found in Ex.P.5 Spot Hand Sketch. From the said evidence of P.W.1, one thing is clear that, at the time of accident, the Petitioner was crossing the road, wherein, there was no pedestrian or zebra cross. Therefore, the contributory negligence is attributed on the part of the Petitioner also in the said road traffic accident to some extent.
16. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the Petitioner had lodged Ex.P.2 Complaint before the Kamakshipalya Traffic Police as against the driver of the offending Tata Sumo bearing Registration No.KA-41-8501 by alleging that on 29.07.2014 at about 1.35 p.m., when she was crossing the road from North to South in front of Kalasipalya Bus Stop towards Kamakshipalya Magadi SCH-7 12 M.V.C.No.3451/2014 Main Road, the offending Tata Sumo bearing Registration No.KA-41-8501 came from Summanahalli towards Kamakshipalya with very high speed and in a rash and negligent manner and dashed to her and due to the said impact, she fell down and sustained grievous injuries to her left leg and was admitted in ESI Hospital and the driver of the said offending Tata Sumo ran away from the accidental spot and as such, she lodged the said complaint requesting to take necessary legal action as against the driver of Tata Sumo and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Tata Sumo for the offences punishable under Section 279 and 338 of IPC and Section 134 (a) and (b) R/w Section 187 of IMV Act under Crime No.103/2014. It is also clear from the contents of Ex.P.1 and Ex.P.2 that, there is no delay as such in lodging the said Ex.P.2 Complaint.
17. The contents of Ex.P.3 Crime Details Form further clearly disclosed about the road traffic accident, which was taken place near Kamakshipalya Bus Stop, Magadi Main Road, Bangalore-79, wherein, the Petitioner had sustained injuries.
18. The contents of Ex.P.4 Spot Panchanama, Ex.P.5 Spot Hand Sketch and Ex.P.6 MVI Report further clarify about the very involvement of the offending Tata Sumo bearing Registration No.KA-41-8501 as well as its driver in the said road traffic accident, which was taken place on 29.07.2014 at about 1.35 p.m. They are further made crystal clear that, the entire SCH-7 13 M.V.C.No.3451/2014 negligence is not on the part of the driver of the offending Tata Sumo, but, the contributory negligence is also on the part of the Petitioner to some extent, as, about 6 feet away from the edge of the said accidental spot, the said accident was taken place, when the Petitioner was crossing the road, where, there is no pedestrian or zebra cross. If the Petitioner could not crossing the road, where there was no zebra cross or pedestrian cross, the said road traffic accident could not have been occurred. It is further clear from the contents of Ex.P.6 MVI Report that, the said accident was not due to any mechanical defects of the said Tata Sumo.
19. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, on 29.07.2014 at about 1.35 p.m., the driver of the offending Tata Sumo bearing Registration No.KA-41-8501 had drove it with very high speed and in a rash and negligent manner from Summanahali to Kamakshipalya through Magadi Main Road and near Kamakshipalya Bus Stand dashed to the Petitioner, who was crossing the road from North to South, due to the said impact, she sustained grievous injuries to her left leg and the driver of the offending Tata Sumo left the accidental spot along with the offending vehicle and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Tata Sumo for the offences punishable under Section 279 and 338 of IPC and Section 134(a) and (b) R/w Section 187 of IMV Act. It is also mentioned in Ex.P.7 Charge Sheet that, at the time of accident, the Petitioner was crossing the road. From this, it is made SCH-7 14 M.V.C.No.3451/2014 crystal that, there is a contributory negligence on the part of the Petitioner.
20. The contents of Ex.P.8 Wound Certificate issued by ESI Hospital and Madhu Hospital disclosed that, the Petitioner was shifted to the said Hospital with a history of accidental hit by Tata Sumo bearing Registration No.KA-41-8501 occurred on 29.07.2014 at about 1.35 p.m., and she was admitted in the said Hospital on 29.07.2014 at 5.30 p.m., and on examination, it is found that, she sustained injuries, i.e., both bones of fracture left leg, which is grievous in nature.
21. The contents of Ex.P.9 OPD Slip issued by the said Hospital further disclosed that, with a history of road traffic accident occurred on 29.07.204 at about 1.35 p.m., near Kamakshipalya Bus Stand hit by a Tata Sumo, the Petitioner was admitted in the Hospital on 29.07.2014 itself and the details of the Petitioner are entered in MLC Register.
22. The contents of Ex.P.10 Discharge Summaries 2 in numbers and Ex.P.14 X-rays 2 in numbers and also Ex.P.15 Inpatient Record disclosed that, due to a alleged history of road traffic accident on 29.08.2014 at about 1.35 p.m., near Kamakshipalya, the Petitioner was admitted in the ESI Hospital on 29.07.2014 and it was diagnosed fracture of both bones of left leg and she was discharged on 31.07.2014 and thereafter, she was admitted as an inpatient in Panacea Hospital on 31.07.2014 and took treatment to the said fracture of both SCH-7 15 M.V.C.No.3451/2014 bones of left leg middle 1/3rd in the said Hospital till 02.08.2014, i.e., for 5 days. It is also clearly mentioned in the said Discharge Summaries that, with a history of road traffic accident on 29.07.2014 at around 2.30 p.m., near Kamakshipalya Bus Stop, Magadi Main Road, Bangalore, while crossing the road, hit by Tata Sumo vehicle, she sustained trauma to left leg, admitted in ESI Hospital, Rajajinagar, Bangalore, primary treatment given, MLC registered, from there, discharged at request and brought her to Panacea Hospital for further management.
23. From the said material evidence, it is made crystal clear that, the entire negligence is not on the part of the driver of the offending Tata Sumo, but, the negligence is also on the part of the Petitioner, as, at the time of accident, she was crossing the road, wherein, there was no pedestrian or zebra cross. The very involvement of the Tata Sumo bearing Registration No.KA-41-8501 as well as its driver in the said road traffic accident, are clearly proved. It is clearly mentioned in Ex.P.5 Spot Hand Sketch that, the accident was taken place about 6 feet away from the edge of the road. Based on the said reasons, this Tribunal has already come to the conclusion that, the negligence is on both the Petitioner and the driver of the offending Tata Sumo bearing Registration No.KA-41-8501 in the said road traffic accident. By considering the same, this Tribunal held that, the contributory negligence is 75% on the part of the offending driver of Tata Sumo bearing Registration No.KA-41-8501 and 25% on the part of the Petitioner, who was SCH-7 16 M.V.C.No.3451/2014 crossing the road, where there was no pedestrian or zebra cross. It is also proved that, in the said road traffic accident, the Petitioner had sustained one grievous injury, i.e., fracture. Accordingly, I answered Issue No.1 partly in the Affirmative.
24. ISSUE NO.2 :- The Petitioner has not produced any authenticated documents to consider her age at the time of accident. But, the above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 35 years old. Hence, the age of the Petitioner is considered as 35 years at the time of accident.
25. The P.W.1 has stated that, prior to the accident, she was very hale and healthy and she is a house wife and she was working at Indian Design Export Pvt. Ltd., Garments Factory as a Relayer and earning a sum of Rupees 7,831/- + O.T. Rupees 4,000/-, totally, Rupees 10,000/- per month. In this regard, the Petitioner has produced Ex.P.11 Pay Slip for the month of June 2014 and July 2014, which disclosed that, during the month of June 2014, the Gross Salary of the Petitioner was Rupees 7,831/- and Net Salary was Rupees 6,910/- and during the month of July 2014, her Gross Salary was Rupees 7,777/- and Net Salary was Rupees 6,860/- and the said pay slips are issued by the India Design Export Pvt. Ltd., Garments Factory, VI and she was working as a Relayer during the said month and by way of cheque, she received the salary through Bank Account. No doubt, the Petitioner has not examined the SCH-7 17 M.V.C.No.3451/2014 employer as witness to prove the contents of Ex.P.11 Pay Slips. But, it no way affect to consider the avocation and income of the Petitioner at the time of accident, as, Ex.P.11 Pay Slips are the authenticated documents and the P.W.1 in her cross- examination has clearly stated that, 2 years prior to the accident, she was working in Indian Design Export Pvt. Ltd, Garments Factory, which is situated in Kamakshipalya Magadi Main Road and the attendance register and salary register are maintained in the said factory. Furthermore, the said salary was paid by the employer to the Petitioner is believable and acceptable one. By considering the same, this Tribunal has come to the conclusion that, at the time of accident, the Petitioner was a house wife and also working as a Relayer at Indian Design Export Pvt. Ltd., Garments Factory by receiving a salary of Rupees 6,860/-, i.e., Net Salary for the month of July 2014, i.e., as on the date of accident. Hence, the income of the Petitioner is considered as Rupees 6,860/- per month at the time of accident.
26. The P.W.1 has stated that, the Doctor, who had treated her opined that, the injuries caused permanent in nature and advised to undergo an operation and due to non- satisfaction of treatment at ESI Hospital, she was admitted to Panacea Hospital for further treatment, wherein, she was treated as an inpatient for 3 days. She has further stated that, - X-ray was taken and the said fractures and injuries were confirmed and advised to undergo an operation and during the said inpatient period in Panacea Hospital, she was operated and SCH-7 18 M.V.C.No.3451/2014 internal fixation was inserted to her fracture site and discharged with an advise to come for follow-up treatment and she visited the Doctor once in a week for four times, once in 15 days for three times and even today, she is taking treatment as and when necessary.
27. Based on the contents of Ex.P.8 Wound Certificate, Ex.P.9 OPD Slip, Ex.P.10 Discharge Summaries 2 in numbers and also Ex.P.19 Inpatient Record, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained both bones fracture left leg, which is grievous in nature and by admitting as an inpatient from 29.07.2014 to 31.07.2014, in ESI Hospital and from 31.07.2014 to 02.08.2014 at Panacea Hospital, the Petitioner took treatment to the said accidental injuries. It is clearly mentioned in the said Discharge Summaries that, during the course of treatment, under SA, parts painted and draped, incision made, entry point made with an acorguide wire passed across fracture site, reamed nail of 9 X 310 mm inserted, proximal and distal locking done. As the Petitioner had sustained fracture of both bones of left leg injury and implants are inserted to the fracture site, even after discharge, the Petitioner had taken follow-up treatment as per the advise of the Doctors. Therefore, the evidence stated by the Petitioner in respect of follow-up treatment after her discharge from the Hospital is believed and accept.
SCH-7 19 M.V.C.No.3451/2014
28. The P.W.1 has stated that, due to the accidental injuries, she could not attend her work so far and she became permanent disabled and it is very difficult to lead a day to day life without sufficient income and now her earning capacity is totally reduced and she and her family members are put to great hardship and mental agony. She has further stated that, prior to the accident, she was very hale and healthy and due to these accidental injuries, she cannot walk and stand without support of walker and she cannot lift weight, she can't fold her left. She has further stated that, she can't climb or down stairs, she cannot sit crossed leg, cannot use Indian type of toilet. She has further stated that, she can't sleep in one angle, she cannot sit on the floor continuously for ten minutes and do any manual work. She has further stated that, she is limping while walking and there is permanent scar retained over the operated portion and if she walks for long distance, her left leg will become swelling.
29. The Petitioner has also examined Dr.Avinash Parthasarathy as P.W.2, who has stated in his examination-in- chief that, on recent examination on 11.03.2015, he found that, the Petitioner has antalgic gait in left lower limb, arc of movement of ankle dorsiflexion, plantar flexion restricted by 10 degree, arc of movement of knee flexion/extension restricted by 15 degree, difficult in squatting, kneeling and sitting cross legged, tenderness over mid 1/3rd tibia, X-ray done on 11.03.2015 shows the fractures have united with implants in situ. By considering the mobility component, loss of motion SCH-7 20 M.V.C.No.3451/2014 relating to ankle and knee, loss of mobility component of left lower limb, stability component, loss of stability component of left lower limb and extra points and permanent physical impairment in the left lower leg relating to the Petitioner, the P.W.2 has opined that, the Petitioner is suffering from permanent physical impairment of 15%. He has further stated that, the Petitioner has pain in left leg and restricted ROM in the left knee and ankle joint, along with moderate difficulty in doing her routine activities and she has 15% whole body disability due to permanent physical impairment in her left lower limb as per the Government of India Notification guidelines 2001. He has also produced Ex.P.15 Out-patient Slip, Ex.P.16 Disability Proforma and Ex.P.17 X-ray Film.
30. But, based on the above said oral version of P.W.1 and P.W.2 coupled with the contents of the said medical documents, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from permanent physical impairment of 15%, as, the P.W.2 is not a treated Doctor and the Petitioner has not examined the treated Doctor to consider such extent of permanent physical impairment. The same has also been clearly admitted by the Petitioner and the P.W.2 in their cross-examination. Further, the P.W.2 in his cross-examination has clearly stated that, he has no personal knowledge about the treatment taken by the Petitioner before 11.03.2015 and before assessing the disability of the Petitioner, he has verified the xerox copies of wound certificate and discharge summary relating to the Petitioner. He SCH-7 21 M.V.C.No.3451/2014 has further clearly stated that, now the fractures are united with implants and he has not assessed the disability of particular limb and he has assessed the only physical disability and not functional disability. As this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was working as a Relayer in Garments Factory, which requires, physical fitness. Under such circumstances, the P.W.2 had to also assess the functional disability of the Petitioner while assessing the disability of the Petitioner in respect of physical. More so, at the time of accident, the Petitioner was 35 years old. Therefore, the said 15% permanent physical impairment as stated by the P.W.2 cannot be believed and accept.
31. However, at the time of accident, the Petitioner was 35 years old and was working as a Relayer in Garments Factory and she has clearly stated that, she was a house wife at the time of accident, based on these grounds, this Tribunal feels that, due to the said accidental injury, the Petitioner is suffering from permanent physical impairment and functional disability of 8% to the whole body, which is believable, reasonable and acceptable one. Therefore, it can be safely held that, due to the accidental injuries, the Petitioner is suffering from 8% permanent physical and functional impairment to the whole body.
32. Except Ex.P.11 Pay Slips, the Petitioner has not produced any authenticated documents issued by the employer to show that, due to the said physical permanent impairment, SCH-7 22 M.V.C.No.3451/2014 she could not attend the work of Relayer in Garment Factory and as such, she was removed by her employer and as such, after the accident, she has lost her job and income. Further, the Petitioner has stated in her cross-examination that, the attendance register and salary register are maintained in the said factory and she has no hurdle to produce the said documents and she has no hurdle to examine the author of pay slips and now she is not working and she has no hurdle to produce the documents to show that, after the accident, she is not going to work in the factory and she has no hurdle to produce the statement of account relating to her Bank Account, she did not care to produce the said material documents and also she did not care to examine her employer. It is clear from the contents of Ex.P.11 Pay Slips that, her salary is credited to her Bank Account from her employer. In this regard, the P.W.1 in her cross-examination has clearly stated that, her salary was credited to her Bank Account and she has Bank Account at Corporation Bank. She has further stated that, ESI facility is there in Indian Design Export Pvt.Ltd., Garments Factory. From this, it is made further crystal clear that, the Petitioner was a permanent employee. From these reasons, it is made crystal clear that, even though the Petitioner had sustained one grievous injury in the aid road traffic accident, it no way affects to continue her job and regular income as a Relayer in the said garments factory. Further, though the Petitioner has stated that, she is a house wife, she has not adduced any acceptable material evidence to show that, the said accidental injuries caused inconvenience to her to do her day to day activities SCH-7 23 M.V.C.No.3451/2014 relating to her family. Hence, the said extent of 8% permanent physical and functional impairment no way caused any loss to the Petitioner to do her normal day to day activities and also her avocation. Hence, the Petitioner is not entitled for any compensation towards loss of future income, loss of earning capacity, loss of future prospectus, future medical treatment and its expenses, arising out of the permanent physical and functional disability.
33. As per Ex.P.8 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained one grievous injury. The Petitioner was in the Hospital as an inpatient from 29.07.2014 to 31.07.2014, i.e., 3 days at ESI Hospital and from 31.07.2014 to 02.08.2014, i.e., for 3 days at Panacea Hospital, in total, 5 days. Due to the said injury, the Petitioner could have definitely suffered a lot of pain and agony. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 25,000/- towards pain and suffering.
34. As it is already observed that, the age of the Petitioner was 35 years. She has to lead remaining her entire life with 8% permanent physical and functional impairment, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 10,000/- towards loss of amenities of life to the Petitioner.
35. The P.W.1 has stated that, even today, she is taking treatment as and when necessary by using an Auto and paying SCH-7 24 M.V.C.No.3451/2014 fare of Rupees 200/- per trip and she had spent a sum of Rupees 65,000/- for her treatment, conveyance, nourishment etc. She has further stated that, she has engaged one maid servant and paying a sum of Rupees 1,500/- per month. But, the Petitioner has only produced Ex.P.12 Medical Bills 14 in numbers, which is amounting of Rupees 47,334/-. The P.W.1 in her cross-examination has clearly denied the suggestion that, whatever the medical expenses incurred by her are all reimbursed by the said factory under ESI scheme. The Petitioner has taken treatment at ESI Hospital and Panecea Hospital, wherein, she was taken treatment as an inpatient totally for 5 days. Considering the nature of the injury and line of treatment given to her, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 47,334/- to the Petitioner.
36. The P.W.1 has stated that, she need one more operation for removal of implants, for which, she has to incur a sum of Rupees 25,000/- to Rupees 30,000/-. The P.W.2 has stated that, the Petitioner has to undergo one more surgery for removal of implants and the estimated cost of the same would be Rupees 40,000/-. It is clearly mentioned in Ex.P.10 Discharge Summaries about insertion of implants in fracture site of the Petitioner. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels SCH-7 25 M.V.C.No.3451/2014 that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/-.
37. As the Petitioner was taken treatment as an inpatient for 5 days, it is necessary to award a sum of Rupees 2,000/- towards conveyance charges, Rupees 2,000/- towards attendant charges and Rupees 3,000/- towards food, nourishment and diet charges etc.,
38. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 25,000-00
2. Loss of amenities of life Rs. 10,000-00
3. Actual medical expenses Rs. 47,334-00
4. Future medical expenses Rs. 10,000-00
5. Conveyance Rs. 2,000-00
6. Attendant Charges Rs. 2,000-00 Food, Nourishment &
7. Rs. 3,000-00 Diet charges TOTAL Rs. 99,334-00
39. In all, the Petitioner is entitled for total compensation of Rupees 99,334/- along with interest at the rate of 6% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of Petition till payment.
40. While answering Issue No.1, this Tribunal has already come to the conclusion that, there is 75% contributory negligence on the part of the driver of the offending Tata Sumo SCH-7 26 M.V.C.No.3451/2014 bearing Registration No.KA-41-8501 and 25% contributory negligence on the part of the Petitioner in the said road traffic accident, wherein, the Petitioner had sustained one grievous injury. The very involvement of the offending Tata Sumo bearing Registration No.KA-41-8501 as well as its driver in the said road traffic accident is clearly proved. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is an insurer and the Respondent No.2 is an R.C. Owner of the offending Tata Sumo bearing Registration No.KA-41-8501. Though the Respondent No.1 has denied the very issuance of the Insurance Policy to the said offending Tata Sumo bearing Registration No.KA-41-850, he has not proved the same by examining the witnesses on his behalf in the present petition. Though the notice was duly served on the Respondent No.2, who is the R.C. Owner of the offending vehicle, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent No.2 and the non-examining of witnesses by the Respondent No.1 to prove his defence, clearly implies that, they are indirectly admitted the entire case made out by the Petitioner as well as her evidence. Under such circumstance, it can be safely held that, at the time of accident, the Respondent No.1 was an insurer and the Respondent No.2 was a registered owner of the said offending Tata Sumo bearing Registration No.KA-41-8501 and its Insurance Policy was valid, which covers the date of accident. There is no allegation leveled as against the driver of the offending Tata Sumo in Ex.P.7 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive such class of vehicle. The violation of the SCH-7 27 M.V.C.No.3451/2014 terms and conditions of the Insurance Policy by the Respondent No.2 is not proved by the Respondent No.1. Under such circumstances, the Respondent No.1 being an insurer and the Respondent No.2 being a R.C. Owner of the offending Tata Sumo bearing Registration No.KA-41-8501, are jointly and severally liable to pay the above said compensation and interest to the Petitioner to an extent of 75%. Since, the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Hence, the Respondent No.1 is liable to pay 75% of the said compensation and interest to the Petitioner. Hence, Issue No.2 is answered accordingly.
41. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for total compensation of Rupees 99,334/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.1 to an extent of 75%.
SCH-7 28 M.V.C.No.3451/2014 The Respondent No.1 shall deposit the said 75% of compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of 75% of the said compensation and interest, entire amount shall be released in the name of Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 18th day of September, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : C.M. Manjula
P.W.2 : Dr.Avinash Parthasarathy
P.W.3 : Basavaraju. B.
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
SCH-7 29 M.V.C.No.3451/2014
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Crime Details Form
Ex.P.4 : True copy of Spot Panchanama
Ex.P.5 : True copy of Spot Hand Sketch
Ex.P.6 : True copy of MVI Report
Ex.P.7 : True copy of Charge Sheet
Ex.P.8 : Certified copy of Wound Certificate
Ex.P.9 : OPD Slip
Ex.P.10 : Discharge Summaries (2 in nos.)
Ex.P.11 : Pay Slips for the month of
June 2014 and July 2014 (2 in nos.)
Ex.P.12 : Medical Bills (14 in Nos.)
Ex.P.13 : `Medical Reports (2 in Nos.)
Ex.P.14 : X-ray Films (3 in Nos.)
Ex.P.15 : Outpatient Slip
Ex.P.16 : Disability Proforma
Ex.P.17 : X-ray Film
Ex.P.18 : Authorisation Letter dated 13.06.2015
Ex.P.19 : Inpatient Record
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.