Bangalore District Court
Vijay Naik @ Vijay vs The Manager on 29 August, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU
DATED THIS THE 29th DAY OF AUGUST 2015
(SCCH-25)
Present:Sri.DHARMAGIRI RAMASWAMY
M.A., LL.M.
XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
MVC No.1385 & 1386/2013
PETITONER/S: Anil Kumar Naik
In MVC:1385/2013 S/o Venkat aramana Naik,
Aged about 19 years
R/at Near Anganavadi School,
Rojipura,
D.B.Pura Town,
D.B.Pura.
Permanent Address:
N.Thanda,
Nagaragiri Hobli,
Gowribidanur Taluk,
Chikkaballapura.
PETITIONER/S Vijay Naik @ Vijay
In MVC:1386/2013 S/o Thippa Naik,
Aged about 18 years,
C/o Shivakumar Naik,
Palanajogahalli,
Kasaba Hobli,
D.B.Pura Taluk,
D.B.Pura.
Permanent Address:
N.Thanda,
2 MVC.1385 &1386/2013
SCCH-25
Nagaragiri Hobli,
Gowribidanur Taluk,
Chikkaballapura.
V/S
RESPONDENT/S: 1.The Manager,
Common in both the National Insurance Co., Ltd.,
cases # 144, 2nd Floor,
Shubaram Complex,
M.G.Road,
Bangalore - 560 001.
2. Muniyappa
S/o Papaiah @ Boppaiah,
Adde Vishwanathapura,
Arekere,
Yelahanka,
Bangalore - 560 064.
.......
JUDGMENT
The petitioners have filed these petitions under Sec.166 of M.V.Act seeking compensation against the respondents.
2. In brief facts of the petitioner are as under:
On 05.09.2012, at about 7.15p.m., the petitioner Anil Kumar was a rider and Vijay Naik @ Vijay was a pillion rider of Motor bike bearing No.KA-43-L-4126 near Bashetahalli Bank circle, D.B.Pura- Bangalore road, at that time the driver of the Omni Car bearing No.KA-04-P-417 came in a high speed and in a rash and negligent manner, and dashed
3 MVC.1385 &1386/2013 SCCH-25 against the petitioners vehicle. Thereby both petitioners fell down and sustained grievous injuries. Immediately they were shifted to Columbia Asia Clinic D.B.Pura, wherein first aid was given. Then they were shifted to Hosmat Hospital and they took inpatient treatment. The petitioner of MVC.1385/2013 took treatment at Rakshita hospital.
The D.B.Pura police filed a case against the driver of the offending vehicle in their PS crime No.275/2012 and u/s.279 & 338 of IPC..
As on the date of the accident the Petitioner Anil Kumar Naik of MVC 1385/2013 was aged about 19 years and was a ITI Holder working at Rittal Company and earning an amount of Rs.8,000/- per month. Due to accident he sustained the injury, underwent the treatment, spent huge amount for medical treatment, even though he is unable to do work and earn an amount of Rs.8,000/-p.m..
As on the date of the accident the Petitioner Vijay Naik @ Vijay in MVC 1386/2013 was aged about 18 years and was doing Rice and Ragi trading business earning an amount of Rs.6,000/- per month. Due to accident he sustained the 4 MVC.1385 &1386/2013 SCCH-25 injury, underwent the treatment and spent huge amount for medical treatment, even though he is unable to do work and earn an amount of Rs.6,000/-p.m..
Respondent No.1 is the insurer, Respondent No.2 is the RC Holder and policy was in existence as on the date of the accident. Therefore both are jointly and severally liable to pay compensation and prayed for compensation.
3. Respondent No.1 appeared through their counsel and filed written statement. Wherein stated that, the application filed by the petitioners is not maintainable in the eye of law. Neither the police nor the RC holder informs the accident. It is false that, the driver of the offending vehicle drove the vehicle in a rash and negligent manner endangering to human life and caused the accident and disputed the age, income and avocation and expenses. Further admitted that, the policy was in existence and prayed for dismiss the petition with cost.
Respondent No.2 was placed ex-parte.
4. Based on the said pleadings in both the cases common issues have been framed are as follows:
5 MVC.1385 &1386/2013 SCCH-25 MVC:1385 &1386/2013
1. Whether the petitioner proves that, he has sustained injuries in an accident dated 05.09.2012 at Omini Car bearing reg.No.KA-04-Petitioner-417 in front of Alankar Bar and Restaurant, near Bashettahalli Bank Circle, D.B.Pura, Bangalore Road?
2. Whether Respondent No.1 proves that rider of Motorcycle bearing reg.No.KA-43- L-4126 did not possess valid driving licence on the date of accident?
3. Whether petitioner is entitled for compensation? If so, from whom and what quantum?
4. What order or award?
5. Petitioner in MVC 1385/2013 Anil Kumar Naik examined himself as PW.1 and got marked 13 documents under Exs.P.1 to P.12 & P.21 and one more witness examined as PW.3 and got marked 3 documents under Exs.P.24 to P.26 and closed their side.
Petitioner in MVC.1386/2013 Vijaykumar Naik was examined as PW.2 and got marked 10 documents under Exs.P.13 to P.20 and Exs.P22 & P.23 and one more witness 6 MVC.1385 &1386/2013 SCCH-25 examined as PW.4 and got marked 3 documents under Exs.P.27 to P.29 and closed their side.
The respondents did not adduce any oral or documentary evidence on their behalf and closed their side.
6. I have heard the arguments on both sides.
7. My findings on the above issues in both the cases are as follows:
Case No. Issue No.2 Issue No.1 Issue No.3 Issue No.4 MVC In the As per the 1385/2013 In the In the Affirmative Final order MVC Negative Affirmative 1386/2013 REASONS
8. Issue No.2 in both the cases:
The respondent No.1 pleaded in their written statement that the driver of the offending vehicle did not possess the DL. There is no evidence to prove the driver of the offending vehicle did not possess the DL. The Respondent no.1 failed to prove issue no.2. Hence, I have answered issue No.2 in the negative.
9. Issue No.1 in both the cases:
PWs.1 & 2 stated in their examination in chief that, On 05.09.2012, at about 7.15p.m., the petitioner Anil Kumar 7 MVC.1385 &1386/2013 SCCH-25 was a rider and Vijay Naik @ Vijay was a pillion rider of Motor bike bearing No.KA-43-L-4126 near Bashetahalli Bank circle, D.B.Pura- Bangalore road, at that time the driver of the Omni Car bearing No.KA-04-P-417 came in a high speed and in a rash and negligent manner, and dashed against the petitioners vehicle. Thereby both petitioners fell down and sustained grievous injuries. Immediately they were shifted to Columbia Asia Clinic D.B.Pura, wherein first aid was given.
Then they were shifted to Hosmat Hospital and they took inpatient treatment. The petitioner of MVC.1385/2013 took treatment at Rakshita hospital.
The D.B.Pura police filed a case against the driver of the offending vehicle in their PS crime No.275/2012 and u/s.279 & 338 of IPC.
PWs.3 & 4 stated that, the PWs.1 & 2 sustained injuries in a RTA..
In support of their oral evidence Petitioner has filed 27 documents under Exs.P.1 to P.27.
10. On perusal of the Ex.P.1 FIR & Complaint, Ex.P.2 statement of the Petitioner, Ex.P.3 panchanama, Ex.P.4 IMV 8 MVC.1385 &1386/2013 SCCH-25 report, Ex.P.5 charge sheet, Ex.P.6 wound certificate of Anil Kumar. Ex.P.14wound certificate of Vijaykumar reveals that, the IO had conducted the investigation and filed the charge sheet against the driver of the offenidng vehicle. The Respondent Nos.1 & 2 did not adduce oral or documentary evidence. I believe the evidence of PWs.1 to 4. The Petitioner proved that, due to rash and negligent driving of the driver of the offending vehicle there was accident, wherein PW1 & 2 sustained the injuries in a RTA. Accordingly I have answered issue No.1 in both the cases is in the affirmative.
11. Issue No.3 in MVC.1385/2013 :
PW.1 stated in his examination-in-chief that, as on the date of the accident the Petitioner Anil Kumar in MVC 1385/2013 was aged about 19 years and working at Rittal Company earning an amount of Rs.8,000/- per month. Due to accident he sustained the injury, underwent the treatment at Columbia Asia Hospital, HOSMAT and KK hospital, Bangalore spent an amount huge amount for medical treatment, even though he is unable to do work and earn an amount of Rs.8,000/-p.m..
9 MVC.1385 &1386/2013 SCCH-25 Respondent Nos.1 & 2 are insurer and RC holder are liable to pay compensation. In support of oral evidence he has filed 13 documents under Exs.P.1 to P.13.
12. PW.3 stated that, the petitioner was admitted to the Apollo hospital with the history of RTA. On examination petitioner sustained Type III = Open fracture - left tibia and fibula, Type II - Open fracture supracondylar - right femur, Multiple tendon injuries with large lacerated wound - right leg and foot. On 06.09.2012 wound debridement and knee and ankle spanning external fixation was done. On 10.09.2012 thorough wound debridement and split skin grafting - right leg was done. The petitioner again examined on 24.04.2015 and complained that, he is unable to work, sit cross legged, squat or walk without a stick and his right leg is short and deformed and he has less power in his right ankle and foot etc., and opined 25% of whole body disability.
Petitioner required of malunion with cost of Rs.2.5 lakhs and knee replacement with cost of Rs.2.5 lakhs.
In support of their oral evidence they have filed 3 documents under Exs.P.24 to P.26.
10 MVC.1385 &1386/2013 SCCH-25
13. On perusal of oral and documentary evidence, Ex.P.6 wound certificate, Ex.P.7 discharge summary, Exs.P.12 & P.26 X-rays, Ex.P.24 out-patient record, Ex.P.25 in-patient record reveals that, Type III = Open fracture - left tibia and fibula, Type II - Open fracture supracondylar - right femur, Multiple tendon injuries with large lacerated wound - right leg and foot. On 06.09.2012 wound debridement and knee and ankle spanning external fixation was done. On 10.09.2012 thorough wound debridement and split skin grafting - right leg was done. The respondents did not adduce any oral or documentary evidence. They have not disputed the accident. I believe the evidence of PWs.1 & 3. Considering the oral and documentary evidence PWs.1 & 3, I am of the opinion that during treatment as well as laid up period he got pain and suffering. Therefore the petitioner is entitled compensation an amount of Rs.70,000/- under the heads of pain and suffering.
Exs.P.8 reveals that, the petitioner has spent an amount of Rs.3,50,783/- towards the medical expense and it is awarded under the heads of medical expenses.
11 MVC.1385 &1386/2013 SCCH-25
14. As on the date of the accident he was aged about 19 years, working at Rittal Company and earning an amount of Rs.8,000/- per month. Due to accident he underwent the treatment and surgery and spent huge amount. Eventhough he is unable to do work and earn. But he has not furnished any certificate regarding his income. Hence Rs.6,000/- has taken as notional income of the petitioner. As per the Sarla Verma's case for the age of 19 years multiplier applicable would be 18. PW.3 opined 25% whole body disability. As such Rs.6,000/- x 12 x 18 x 25% = Rs. 3,24,000/- is awarded under the heads of loss of future income. Another 10% out of loss of future income i.e., Rs.3,24,000/-x10%= Rs.32,400/- is awarded under the heads of loss of amenities and happiness. The wounds required 6 months for healing. During that period he was not attend the work and earn. So Rs.6,000/-X 6=Rs.36,000/- is awarded under the heads of loss of income during laid up period. Another Rs.20,000/- is awarded towards attendant charges, food and nourishment and conveyance etc., 12 MVC.1385 &1386/2013 SCCH-25 PW.3 stated that, the petitioner required one more correction of mall union with cost of Rs.2,5 lakhs and replacement of Knee with cost of Rs.2.5 lakhs. Considering the evidence of PW.3 this tribunal is awarded Rs.5,00,000/- towards future medical expenses. If the petitioner under go the correction surgery and knee replacement, then only the petitioner is entitle the future medical expenses. The future medical expenses paid to the concerned specialized hospital recognized by the Govt. of Karnataka for reimbursement of medical expenses rules up to Rs.2,50,000/- for correction of the mall union and Rs.2,50,000/- for replacement of knee. So the Petitioner is entitled total compensation on various heads.
1. Pain & Suffering : Rs. 70,000/-
2. Medical expenses : Rs. 3,50,783/-
3. Loss of future income : Rs. 3,24,000/-
4. Loss of amenities and Happiness : Rs. 32,400/-
5. Loss of income during Laid up period : Rs. 36,000/-
6. Attendant charges, food and 13 MVC.1385 &1386/2013 SCCH-25 Nourishment : Rs. 20,000/-
7. Future medical expenses : Rs. 5,00,000/-
TOTAL Rs.13,33,183/-
Respondent No.1 is the insurer, Respondent No.2 is the RC holder and policy is in existence, charge sheet is against the driver of the offenidng vehicle. The Respondents failed to prove the non-existence of DL. They have not lead any evidence. Hence both are jointly and severally liable to pay compensation to the petitioner with interest (Except future medical expenses). On intimation the future medical expenses insurance company directly pay to the concerned hospital as on when the Petitioner was admitted for future treatment. Accordingly I have answered issue No.3 in MVC 1385/2013 is in the affirmative.
15. Issue No.3 in MVC. 1386/2013 :
PW.2 stated in his examination-in-chief that, as on the date of the accident the Petitioner Anil Kumar in MVC 1386/2013 was aged about 18 years and working Retail business earning an amount of Rs.6,000/- per month. Due to accident he sustained the injury, underwent the treatment at 14 MVC.1385 &1386/2013 SCCH-25 Columbia Asia Hospital, HOSMAT hospital, Bangalore spent an amount huge amount for medical treatment, even though he is unable to do work and earn an amount of Rs.6,000/-
p.m..
Respondent Nos.1 & 2 are insurer and RC holder are liable to pay compensation. In support of oral evidence he has filed 10 documents under Exs.P.13 to P.20 & Exs.P.22 & P.23.
16. PW.4 stated that, the petitioner was admitted to the Apollo hospital with the history of RTA. On examination petitioner sustained fracture right femur lower end open with comminution and shattering with extension into the right knee, fracture right ulna. On 06.09.2012 locked compression plating right lower femur was done and dynamic compression plating right ulna was done. The petitioner again examined on 24.04.2015 and complained that, he is unable to work, sit cross legged, squat, kneeling, sitting cross legged and climbing stairs and slopes. He is unable to walk fast or on rough grounds. He has difficulty in buttoning, lifting weights with his 15 MVC.1385 &1386/2013 SCCH-25 right upper limb, his grip on his right hand has reduced and opined 22% of whole body disability.
Petitioner required of removal of implant with cost of Rs.1 lakhs and knee replacement with cost of Rs.2.5 lakhs.
In support of their oral evidence they have filed 3 documents under Exs.P.27 to P.29.
17. On perusal of oral and documentary evidence, Ex.P.14 wound certificate, Ex.P.15 discharge summary, Exs.P.20 X-rays, Ex.P.27 out-patient record, Ex.P.28 in- patient record reveals that, fracture right femur lower end open with comminution and shattering with extension into the right knee, fracture right ulna. On 06.09.2012 locked compression plating right lower femur was done and dynamic compression plating right ulna was done. The respondents did not adduce any oral or documentary evidence. They have not disputed the accident. I believe the evidence of PWs.2 & 4. Considering the oral and documentary evidence PWs.2 & 4, I am of the opinion that during treatment as well as laid up period he got pain and suffering. Therefore the petitioner is 16 MVC.1385 &1386/2013 SCCH-25 entitled compensation an amount of Rs.70,000/- under the heads of pain and suffering.
Exs.P.16 reveals that, the petitioner has spent an amount of Rs.1,23,065/- towards the medical expense and it is awarded under the heads of medical expenses.
18. As on the date of the accident he was aged about 18 years, working as Retail business and earning an amount of Rs.6,000/- per month. Due to accident he underwent the treatment and surgery and spent huge amount. Eventhough he is unable to do work and earn. But he has not furnished any certificate regarding his income. Hence Rs.6,000/- has taken as notional income of the petitioner. As per the Sarla Verma's case for the age of 18 years multiplier applicable would be 18. PW.4 opined 22% whole body disability. As such Rs.6,000/- x 12 x 18 x 22% = Rs. 2,85,120/- is awarded under the heads of loss of future income. Another 10% out of loss of future income i.e., Rs.2,85,120/-x10%= Rs.28,512/- is awarded under the heads of loss of amenities and happiness. The wounds required 4 months for healing. During that period he was not attend the work and earn. So Rs.6,000/-X 4= 17 MVC.1385 &1386/2013 SCCH-25 Rs.24,000/- is awarded under the heads of loss of income during laid up period. Another Rs.20,000/- is awarded towards attendant charges, food and nourishment and conveyance etc., PW.4 stated that, the petitioner required removal of implant with cost of Rs.1 lakh and replacement of Knee with cost of Rs.2.5 lakhs. Considering the evidence of PW.3 this tribunal is awarded Rs.50,000/- towards the replacement of implants and Rs.2.5 lakhs towards the replacement of knee under the heads of future medical expenses, if the petitioner under go the knee replacement, then only the petitioner is entitle the future medical expenses of Rs.2.5 lakhs. The future medical expenses of Rs.2,50,000/- Lakhs paid to the concerned specialized hospital recognized by the Govt. of Karnataka for reimbursement of medical expenses rules. So the Petitioner is entitled total compensation on various heads.
1. Pain & Suffering : Rs. 70,000/-
2. Medical expenses : Rs. 1,23,065/-
3. Loss of future income : Rs. 2,85,120/-
4. Loss of amenities and 18 MVC.1385 &1386/2013 SCCH-25 Happiness : Rs. 28,512/-
5. Loss of income during Laid up period : Rs. 24,000/-
6. Attendant charges, food and Nourishment : Rs. 20,000/-
7. Future medical expenses : Rs. 3,00,000/-
TOTAL Rs.8,50,697/-
Respondent No.1 is the insurer, Respondent No.2 is the RC holder and policy is in existence, charge sheet is against the driver of the offenidng vehicle. The Respondents failed to prove the non-existence of DL. They have not lead any evidence. Hence both are jointly and severally liable to pay compensation to the petitioner with interest (Except future medical expenses). On intimation the future medical expenses insurance company directly pay to the concerned hospital as on when the Petitioner was admitted for future treatment. Accordingly I have answered issue No.3 in MVC 1386/2013 is in the affirmative.
19. Issue No.4 in both the cases:
In view of answering issue Nos.1 to 3, as above, I proceed to pass the following:
19 MVC.1385 &1386/2013 SCCH-25 ORDER The petitions in MVC:1385/2013 and MVC:
1386/2013 are allowed.
The petitioner in MVC:1385/2013 is entitled for total compensation of Rs.13,33,183/- along with interest @ 6% p.a. (Except Future Medical Expenses) Respondents No.1 & 2 are Jointly and severally liable to pay compensation to the petitioner.
Respondent No.1 is the insurer order to deposit the compensation amount within sixty days from the date of award. (Except future medical expenses of Rs.5,00,000/-).
The insurance company is order pay Future medical expenses as on when the petitioner undergo for further treatment.
On deposit, a sum of Rs.3,00,000/- shall be kept as FD in any N/S Bank for a period of 6 years in the name of the petitioner and remaining amount shall be released to the petitioner by way of account payee
20 MVC.1385 &1386/2013 SCCH-25 cheque after obtaining vouchers, receipts and proper identification as per finance rules.
The petitioner in MVC:1386/2013 is entitled for total compensation of Rs.8,50,697/--along with interest @ 6% p.a. (Except future medical expenses of Rs.2,50,000/-) from the date of petition till the date of deposit. Respondents No.1 & 2 are Jointly and severally liable to pay the compensation to the petitioner.
Respondent No.1 is the insurer order to deposit the amount within sixty days from the date of award. (Except future medical expenses of Rs.2,50,000/-).
The insurance company is order pay Future medical expenses as on when the petitioner undergo for further treatment.
On deposit, a sum of Rs.2,00,000/- shall be kept as FD in any N/S Bank for a period of 6 years in the name of the petitioner and balance amount shall be released to the petitioner by way of account payee 21 MVC.1385 &1386/2013 SCCH-25 cheque after obtaining vouchers, receipts and proper identification as per finance rules. Advocate fee is fixed at Rs.500/- in each case Draw award separate accordingly.
The original of this judgment is kept in MVC:1385/2013 and the signed copy of judgment kept in MVC:1386/2013.
(Typed to my online dictation by the stenographer, corrected and then pronounced by me in open court on this the 29th day of August 2015).
(DHARMAGIRI RAMASWAMY) XXI Addl.C.M.M.& Member MACT, Bengaluru.
ANNEXURE List of Witnesses examined for petitioner:
PW.1 Anilkumar Naik @ Anil Kumar PW.2 Vijay Kumar Naik @ Vijaykumar PW.3 Dr.Krishan Prasad PW.4 Dr.Krtishan Prasad
List of Documents marked for Petitioner:
Ex.P.1 True copy of FIR with complaint
22 MVC.1385 &1386/2013 SCCH-25 Ex.P.2 True copy of statement of the petitioner Ex.P.3 True copy of mahazar Ex.P.4 True copy of IMV report Ex.P.5 True copy of charge sheet Ex.P.6 True copy of wound certificate Ex.P.7 Discharge summary Ex.P.8 Medical bills (84 in Nos.) Ex.P.9 Advance bills (7 in Nos.) Ex.P.10 Medical prescriptions (36 in Nos.) Ex.P.11 Medical reports (11 in Nos.) Ex.P.12 X-rays (11 in Nos.) Ex.P.13 True copy of re statement of petitioner Ex.P.14 True copy of wound certificate Ex.P.15 Discharge summary (2 in Nos.) Ex.P.16 Medical bills (36 in Nos.) Ex.P.17 Advance bills (5 in Nos.) Ex.P.18 Medical prescriptions (14 in Nos.) Ex.P.19 Medical reports (7 in Nos.) Ex.P.20 X-rays (7 in Nos.) Ex.P.21 Notarized copy of ITI certificate Ex.P.22 Notarised copy of ration card Ex.P.23 Notarized copy of SSLC marks card Ex.P.24 Out patient record Ex.P.25 In-patient record Ex.P.26 X-ray (12in Nos.) Ex.P.27 Out patient record 23 MVC.1385 &1386/2013 SCCH-25 Ex.P.28 In patient record Ex.P.29 X-ray (17 in Nos.) List of Witnesses examined for respondent/s:
---Nil---
List of documents exhibited for Respondent:
---Nil---
(DHARMAGIRI RAMASWAMY) XXI Addl. C.M.M.,& Member MACT, Bengaluru.