Bangalore District Court
Has Produced Ex.P.1 Fir vs As on 5 August, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 5th day of August, 2016.
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.2033/2015
Mr. Sudhanshu Sekhar Patra, ..... PETITIONER
S/o. Sashibhusan Patra,
Aged about 34 years,
Residing at No.208,
1st Floor, Swarna Silicon
Castles Apartments,
Basavanagar,
Hoodi, Whitefield,
Bangalore - 560 048.
(By Ambika. M., Adv.,)
V/s
R.N. Krishna Murthy, ..... RESPONDENT
S/o. Ramu,
No.113, Bagalur Road,
Bande Hosur,
Bangalore.
(Owner of Tipper Lorry bearing
Registration No.KA-22-A-4329)
(Exparte)
2 M.V.C.No.2033/2015
SCH-7
JUDGMENT
The Petitioner has filed the present petition as against the Respondent under Section 166 of the Motor Vehicles Act, 1989, praying to award compensation of Rupees 25,00,000/- with interest at the rate of 12% p.a., from the date of petition till its realization and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 31.01.2015 at about 2.00 p.m., while he was proceeding as a pillion rider on Motor Cycle bearing Registration No.KA-53-EB-1325 being driven by his wife, Smt.Smruti Sikha Patnaik, at Whitefield Main Road, Opposite to Decathlon, Garudacharpalya, Bangalore, within the jurisdiction of K.R. Puram Traffic Police Station, Bangalore, at that time, the driver of the Tipper Lorry bearing Registration No.KA-22-A-4329, drove the said Tipper Lorry at a very high speed, in a rash and negligent manner, so as to endanger human life and dashed as against the Motor Cycle bearing Registration No.KA-53-EB-1325 from behind, as a result of the tremendous impact of the said accident, he fell down and sustained grievous injuries.
b) The said accident was caused entirely due to the rash and negligent driving of the Tipper Lorry bearing Registration No.KA-22-A-4329.
3 M.V.C.No.2033/2015SCH-7
c) Immediately after the said accident, the injured was rushed to Hosmat Hospital, Bangalore, for management.
d) He was working as a Tech Lead (Senior System Analyst) at Birlasoft (India) Limited, S.J.R.I. Park, IV Floor, Tower 1, EPIP Industrial Area, Whitefield Road, Bangalore - 560 066 and earning Rupees 85,000/- per month.
e) Due to the injuries sustained in the said accident, he is totally unable to move and is totally bed ridden, as such, at present, he is suffering from permanent disability.
f) Taking into consideration, the pain and sufferings, loss of income, disability, medical expenses, traveling expenses and other incidental expenses, a sum of Rupees 25,00,000/- would be the reasonable amount of compensation.
g) As the driver of the Tipper Lorry bearing Registration No.KA-22-A-4329 was negligent, the Respondent-owner is vicariously liable to pay adequate compensation to him.
h) As the Respondent has intentionally removed Tipper Lorry bearing Registration No.KA-22-A-4329, from the local limits of this Hon'ble Court in order to dispose off the said vehicle, to obstruct and delay the execution of a decree that may be passed as against him, it is prayed that, this Hon'ble Court be pleased to kindly issue an order of Attachment Before Judgment.
4 M.V.C.No.2033/2015SCH-7
i) K.R. Puram Police Station, who were informed of the said accident have registered a case in Crime No.20/2015 for the offences punishable under Section 279 and 337 of IPC as against the driver of Tipper Lorry bearing Registration No.KA-22-A-4329. Hence, this petition.
3. Though the notice was duly served on the Respondent through paper publication, he was remained absent and hence, he is placed as exparte on 02.01.2015.
4. In order to prove his case, the Petitioner himself 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.23.
5. Heard the arguments.
6. Now the Points that arise for my consideration are as follows;
POINTS
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Tipper Lorry bearing Registration No.KA-
22-A-4329 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
5 M.V.C.No.2033/2015SCH-7
3. What Order?
7. My answers to the above said Points are as follows;
PointNo.1 : In the Affirmative,
PointNo.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 6,11,913/- with
interest at the rate of 9%
p.a. from the date of the
petition till the date of
payment, from the
Respondent.
Point No.3 : As per the final Order,
for the following;
REASONS
8. POINT NO.1 :- The P.W.1, who is the Petitioner has
stated in his examination-in-chief that, on 31.01.2015 at about 2- 00 p.m., while he was proceeding as a pillion rider on Motor Cycle bearing Registration No.KA-53-EB-1325 being driven by his wife, Smt.Smruti Sikha Patnaik, at Whitefield Main Road, Opposite to Decathlon, Garudacharpalya, Bangalore, at that time, the driver of the Tipper Lorry bearing Registration No.KA-22-A-4329, drove the said Tipper Lorry at a very high speed, rash and negligent manner so as to endanger human life and dashed against their Motor Cycle from behind and on account of tremendous impact of the said accident, he fell down and sustained grievous injuries. He 6 M.V.C.No.2033/2015 SCH-7 has further stated that, the said accident was caused entirely due to the rash and negligent driving of the Tipper Lorry bearing Registration No.KA-22-A-4329. He has further stated that, immediately after the accident, he was rushed to Hosmat Hospital, Bangalore, for treatment and he had sustained grievous injuries, i.e., left acetabulum bicollumnar fracture with ilium fracture with internal degloving injury with haematoma collection right thigh, closed comminuted fracture mid and distal 1/3rd right humerus with wrist drop (Radian nerve pasly), sciatic nerve palsy (neuro praxia) right leg, right foot drop present, sub-capsular haematoma liver (Blunt trauma abdomen) with paralytic ileus, right sided sacral ala fracture (from S1 to S5) and bilateral eyes subconjunctival haemorrhage. He has further stated that, on 31.01.2015, he was admitted at the Hosmat Hospital, Bangalore and he was discharged on 05.03.2015. He has further stated that, on 06.03.2015, he again admitted to Hosmat Hospital, for rehabilitation and Physiotherapy treatment and was discharged on 23.03.2015. He has further stated that, a Police complaint has been lodged and a Criminal case has been filed as against the driver of the Tipper Lorry bearing Registration No.KA-22-A-4329 by K.R. Puram Traffic Police Station in Crime No.20/2015.
9. To consider his case as well as oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Wound Certificate, Ex.P.4 Spot Hand Sketch, Ex.P.5 Spot Panchanama, Ex.P.6 MVI Report, Ex.P.7 Charge Sheet, Ex.P.8 Discharge Summaries 2 in numbers, Ex.P.13 Photographs 5 in numbers and Ex.P.14 CD relating to Ex.P.13 Photographs.
7 M.V.C.No.2033/2015SCH-7
10. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the rider of the Motor Cycle as well eye witness had lodged Ex.P.2 Complaint before K.R. Puram Traffic Police Station as against the driver of the offending Tipper Lorry bearing Registration No.KA-22-A-4329 by alleging that, on 31.01.2015 at about 2.00 P.M., on Whitefield Main Road, Garudachar Palya, in front of Dikethalin road, the Tipper Lorry bearing Registration No.KA-22-A-4329 came from K.R. Puram Railway Station towards Hoodi with very high speed, rash and negligent manner by its driver and dashed to the Hero Mestro Motor Cycle bearing Registration No.KA-53-EB-1325, which was proceeding in front of the said Tipper Lorry and due to the said impact, the said Motor Cycle caused damages and the rider had sustained simple injuries and the pillion rider had sustained severe grievous injuries on his left thigh, left back and left hand and the driver of the Tipper Lorry fled away from the accidental spot by leaving the Lorry on the accidental spot itself and the injured were shifted to Hosmat Hospital through 108 Ambulance and as such, she prayed to take necessary legal action as against the driver of the offending Tipper Lorry and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Tipper Lorry for the offences punishable under Section 279 and 337 of IPC and Section 134(A & B) and 187 of IMV Act. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the eye witness in respect of the accident in question, which caused to the Petitioner.
8 M.V.C.No.2033/2015SCH-7
11. The contents of Ex.P.4 Spot Hand Sketch, Ex.P.5 Spot Panchanama and Ex.P.6 MVI Report further clearly disclosed that, the offending Tipper Lorry bearing Registration No.KA-22-A-4329 as well as its driver are very much involved in the said road traffic accident and due to very high speed, rash and negligent manner of driving of the said offending Tipper Lorry by its driver itself, the said road traffic accident was taken place, which dashed to the Motor Cycle bearing Registration No.KA-53-EB-1325 on its behind and due to the said impact, the Petitioner, who was a pillion rider, had sustained severe grievous injuries and there was no negligence on the part of the rider of the said Motor Cycle in the commission of the said road traffic accident. It is also clear from the contents of Ex.P.4 Spot Hand Sketch that, if the driver of the offending Tipper Lorry could have taken a little care while driving it, he could have avoided the said road traffic accident, which caused to the Petitioner. The damages caused to the said Motor Cycle shown in Ex.P.6 MVI Report, clearly disclosed about the terrific impact of the said road traffic accident. It is also clearly mentioned in Ex.P.6 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
12. The contents of Ex.P.3 Wound Certificate clearly disclosed that, due to alleged history of road traffic accident, i.e., 2 wheeler hit by Truck on 31.01.2015 at 2.30 p.m., near Mahadevapura, the Petitioner brought to Hosmat Hospital on 31.01.2015 at 2.45 p.m., itself and on examination, it is found that, he had sustained left acetabulum bicollumnar fracture with ilium fracture with internal degloving injury with haematoma 9 M.V.C.No.2033/2015 SCH-7 collection right thigh, closed comminuted fracture mid and distal 1/3rd right humerus with wrist drop (Radian nerve pasly), sciatic nerve palsy (neuro praxia) right leg, right foot drop present, sub- capsular haematoma liver (Blunt trauma abdomen) with paralytic ileus, right sided sacral ala fracture (from S1 to S5) and bilateral eyes subconjunctival haemorrhage, i.e., 5 grievous injuries.
13. The contents of Ex.P.8 Discharge Summaries issued by Hosmat Hospital further clearly disclosed that, during the course of treatment, it is diagnosed left acetabulum bicollumnar fracture with ilium fracture + internal degloving injury with haematoma collection right thigh, closed comminuted fracture mid and distal 1/3rd right humerus with wrist drop (Radian nerve pasly), sciatic nerve palsy (neuro praxia) right leg, right foot drop present, sub- capsular haematoma liver (Blunt trauma abdomen) with paralytic ileus, right sided sacral ala fracture (from S1 to S5) and bilateral eyes subconjunctival haemorrhage and he took treatment to the said accidental injuries in the said Hospital till 05.03.2015, i.e., for 34 days and again, he was admitted in the said Hospital on 06.03.2015 to take follow-up treatment, i.e., rehabilitation and physiotherapy to the said accidental injuries and he took treatment till 23.03.2015, i.e., for 18 days. The P.W.2 has also produced Ex.P.20 Inpatient Records, Ex.P.21 X-ray Reports and Ex.P.22 X-ray Films and the Petitioner has also produced Ex.P.13 Photographs 5 in numbers and Ex.P.14 CD relating to Ex.P.13 Photographs, which also clearly disclosed about the said nature of injuries, line of treatment and length of treatment, which was 10 M.V.C.No.2033/2015 SCH-7 taken by the Petitioner by admitting as an inpatient totally for 52 days, at Hosmat Hospital.
14. From the above said medial evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained 5 grievous injuries and totally by admitting as an inpatient for 52 days, he took treatment to the said accidental injuries at Hosmat Hospital.
15. The contents of Ex.P.7 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the offending Tipper Lorry bearing Registration No.KA-22-A-4329, the road traffic accident was taken place on 31.01.2015 at 2-00 p.m., near Dikethalin, Garudacharpalya, Whitefield Main Road, which was coming from City towards Hoodi, which dashed to the Hero Mastro Motor Cycle bearing Registration No.KA-53-EB-1325 on its behind, which was proceeding in front of the offending Tipper Lorry and due to the said impact, the said Motor Cycle caused damages and the Petitioner had sustained severe grievous injuries and the driver of the offending Tipper Lorry had not given first-aid treatment to the injured and he had not informed to the nearest Police Station about the said accident and at the time of accident, the driver of the offending Tipper Lorry was not having the valid and effective driving licence and the said offending Lorry was also not having valid insurance and F.C., and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Tipper Lorry for the offences punishable under Sections 279 and 338 of IPC and 11 M.V.C.No.2033/2015 SCH-7 Section 134(A&B), 187, 3(1), 181, 146, 196, 56 and 192 of IMV Act. There is no allegation leveled by the Investigation Officer in Ex.P.7 Charge Sheet as against the rider of the said Motor Cycle, i.e., the complainant, about his negligence in the commission of the said road traffic accident.
16. From the above said material evidence, both oral and documentary, it is clearly proved that, due to very high speed, rash and negligent manner of driving of the offending Tipper Lorry bearing Registration No.KA-22-A-4329 by its driver itself, the said road traffic accident was taken place, wherein, the Petitioner had sustained five grievous injuries and the offending Tipper Lorry bearing Registration No.KA-22-A-4329 as well as its driver are very much involved in the said road traffic accident. To deny or to discard the same, nothing is available on record on behalf of the Respondent, as, though the notice was duly served on the Respondent through paper publication, he was remained absent and hence, he is placed as exparte. The non-appearance of the Respondent in the present petition clearly implies that, he has indirectly admitted the entire case made out by the Petitioner as against him in the present petition. Accordingly, I answered Point No.1 in the Affirmative.
17. POINT NO.2 :- The Petitioner has not produced any authenticated documents to consider his actual age at the time of accident. The above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 33 years old. Hence, the age of the Petitioner is considered as 33 years at the time of accident.
12 M.V.C.No.2033/2015SCH-7
18. The P.W.1 has stated that, at the time of accident, he was working as a Tech Lead (Senior System Analyst) at Birlasoft (India) Limited, S.J.R.I. Park, IV Floor, Tower 1, EPIP Industrial Area, Whitefield Road, Bengaluru - 560 066 and earning Rupees 85,000/- per month. The Petitioner has produced Ex.P.9 Letter dated 11.12.2015 issued by C.K. Birla Group, Ex.P.10 Pay Slip for the months of January 2015 and March 2015, 2 in numbers and Ex.P.11 Identity Card relating to Petitioner. The Petitioner has also examined his employer as P.W.3, who has stated in his examination-in-chief that, the Petitioner was working as Tech Lead (Senior System Analyst) at Birlasoft (India) Limited, S.J.R.I. Park, IV Floor, Tower 1, EPIP Industrial Area, Whitefield Road, Bengaluru - 560 066 and he joined the service of their Company on 16.08.2012 and he was issued Offer Letter and also Appointment Order on 26.07.2012 and was earning an income of Rupees 85,000/- per month. He has further stated that, Ex.P.9 is issued by their Company. On perusal of the said oral version of P.W.1 and P.W.3 as well as contents of Ex.P.9 to Ex.P.11, it clearly goes to show that, at the time of accident, the Petitioner was working as a Tech Lead (Senior System Analyst) at Birlasoft (India) Limited, S.J.R.I. Park, IV Floor, Tower 1, EPIP Industrial Area, Whitefield Road, Bengaluru - 560 066. The contents of Ex.P.10 Pay Slips disclosed that, in the month of January 2015, the Petitioner drawn Gross Salary of Rupees 1,00,605/- and Net Salary of Rupees 81,257/- and in the month of March 2015, he drawn Gross Salary of Rupees 54,488/- and Net Salary of Rupees 51,454/-. The date of accident is on 31.01.2015. Therefore, the pay slip for the month of January 2015, which is produced by the 13 M.V.C.No.2033/2015 SCH-7 Petitioner as Serial No.1 of Ex.P.10, is taken into for consideration to assess the income of the Petitioner at the time of accident. As per the said Pay Slip for the month of January 2015, the Net Salary of the Petitioner is of Rupees 81,257/- after deduction of IT and others. No other documents produced either by the Petitioner or P.W.3 to show that, at the time of accident, he was earning Rupees 85,000/- p.m. Hence, the Net salary of Rupees 81,257/- as shown in Serial No.1 of Ex.P.10 Pay Slip for the month of January 2015 is taken in to for consideration of the income of the Petitioner at the time of accident. Hence, the income of the Petitioner is considered as Rupees 81,257/- p.m., at the time of accident.
19. The P.W.1 has stated that, he was underwent ORIF recon plate left ilium (5 holed) _ evacuation of haematoma right thigh + left upper tibia skeletal traction on 03.02.2015, ORIF 8 holed LCP right humerus on 05.02.2015, ORIF 9 holed recon plate left post column + 8 holed plate left posterior wall left acetabulum on 09.02.2015, wound debridement right thigh on 09.02.2015, major wound debridement on right thigh on 16.02.2015, wound debridement + SSG right thigh on 19.02.2015 and wound debrdement and SSG thigh on 27.02.2015 and was discharged on 05.03.2015. He has further stated that, on 06.03.2015, he was admitted to Hosmat Hospital, for rehabilitation and physiotherapy and was discharged on 23.03.2015.
20. Based on the contents of Ex.P.3 Wound Certificate, Ex.P.8 Discharge Summaries, Ex.P.13 Photographs, Ex.P.14 CD, Ex.P.20 Inpatient Records, Ex.P.21 X-ray Reports and Ex.P.22 X-
14 M.V.C.No.2033/2015SCH-7 ray Films, this Tribunal has come to the conclusion that, the Petitioner had sustained left acetabulum bicollumnar fracture with ilium fracture with internal degloving injury with haematoma collection right thigh, closed comminuted fracture mid and distal 1/3rd right humerus with wrist drop (Radian nerve pasly), sciatic nerve palsy (neuro praxia) right leg, right foot drop present, sub- capsular haematoma liver (Blunt trauma abdomen) with paralytic ileus, right sided sacral ala fracture (from S1 to S5) and bilateral eyes subconjunctival hemorrhage and he was diagnosed left acetabulum bicollumnar fracture with ilium fracture + internal degloving injury with haematoma collection right thigh, closed comminuted fracture mid and distal 1/3rd right humerus with wrist drop (Radian nerve pasly), sciatic nerve palsy (neuro praxia) right leg, right foot drop present, sub-capsular haematoma liver (Blunt trauma abdomen) with paralytic ileus, right sided sacral ala fracture (from S1 to S5) and bilateral eyes subconjunctival haemorrhage and in the said Hospital, he was admitted as an inpatient from 31.01.2015 to 05.03.2015, i.e., for 34 days, to take treatment to the said accidental injuries and again, he was admitted in the said Hospital on 06.03.2015, wherein, he has taken treatment for rehabilitation and physiotherapy and he was discharged on 23.03.2015, i.e., for 18 days, totally for 52 days. It is also clearly mentioned in Ex.P.8 Discharge Summary that, during the course of treatment, ORIF recon plate left illium (5 holed) + 12 holed recon plate left anterior column of cetabulum + evacuation of haematoma right + left upper tibial skeletal traction on 03.02.2015, ORIF 8 holed LCP right humerus on 05.02.2015, ORIF 9 holed recon plate left post column + 8 holed plate left 15 M.V.C.No.2033/2015 SCH-7 posterior wall left acetabulum on 09.02.2015, wound debridement right thigh on 09.02.2015, major wound debridement on right thigh on 16.02.2015, wound debridement + SSG right thigh on 19.02.2015 and wound debridement and SSG thigh on 27.02.2015. It is also clear from the contents of Ex.P.8 Discharge Summary that, at the time of discharge, the Petitioner was advised to take medicine, right side skin grafting alternative day dressing, drain to be attached to walls suction, right side/left side turning to 30 degree every 2 hourly, back care/catheter care, to continue skeletal traction 6kg, trapezebar to be given, physiotherapy of deep breathing exercise, incentive spirometry, pelvic bridging exercises, gentle passive ROM right ankle, right knee and every 2 hourly turning right/left side about 30 degree. It is also clear from the contents of Serial No.2 of the Discharge Summary that, the Petitioner had taken rehabilitation and physiotherapy treatment in the said Hospital to the said accidental injuries and at the time of discharge on 23.03.2015, he was advised to take medicine, foot drop splint to be maintained, dressing once in 3 days and physiotherapy for bilateral hip mobilization, bilateral static quadriceps, wheel chair mobilization and active toe movements. From the said medical evidence as well as oral version of P.W.1, it is made crystal clear that, since in the said road traffic accident, the Petitioner had sustained 5 grievous injuries, he took treatment to the said accidental injuries at Hosmat Hospital by admitting as an inpatient and during the course of treatment, implants are inserted to the fracture site of the Petitioner and he had also taken physiotherapy and rehabilitation treatment in the said Hospital 16 M.V.C.No.2033/2015 SCH-7 and even after discharge from the Hospital, he has taken regular follow-up treatment as per the advise of the treated Doctors.
21. The P.W.1 has stated that, at present, he is suffering from pain in his right hand and right leg and disability to walk, sit, stand, squat, jump, he is unable to climb staircase and he is unable to use Indian toilet and he is unable to use his right hand as he used to prior to the said accident to operate the computer, as he is a Senior System Analyst and the said accidental injuries has affected his livelihood.
22. The P.W.2 has stated that, he was assessed for disability on 09.02.2016 and the Petitioner says that, the Petitioner was a Systems Analyst in a Company before the accident and he says that, the Petitioner is working from home at the moment and has difficulty in doing combing, overhead activities, changing cloths and typing and the grip on the right hand has reduced and he gets pain in the lower back on prolonged sitting and he is unable to kneel, squat, sit cross legged and has great difficulty in climbing stairs and slopes and he is unable to actively move his right ankle upwards (foot drop) and has severe stiffness and pain in his left hip and right ankle and he needs frequent periods of rest while walking and he needs to walk with a high stepping gait to clear the ground and this result in fatigue and pain in his right hip and knee and he is unable to walk without support and he has massive skin grafts over his right hip groin and right thigh, which is numb and itches a lot and his right foot is numb. By considering the mobility component relating to right upper limb in respect of the right shoulder, coordinated 17 M.V.C.No.2033/2015 SCH-7 activities, stability component, power loss right ankle, the P.W.2 has opined that, due to the said accidental injuries, the Petitioner is suffering from whole body disability of 32%. The P.W.2 has produced Ex.P.19 Outpatient Record.
23. Admittedly, the P.W.2 is not a treated Doctor. But, it no way affect to consider the assessment of disability assessed by the P.W.2 relating to the Petitioner, which is arising out of the said accidental injuries, as, the P.W.2 in his examination-in-chief has clearly referred the nature of injuries sustained by the Petitioner in the said road traffic accident, line of treatment taken by him to the said accidental injuries by admitting as an inpatient for 2 times at Hosmat Hospital. Further, the P.W.2 has produced Ex.P.19 Outpatient Record, Ex.P.20 Inpatient Records, Ex.P.21 X- ray Report and Ex.P.22 X-ray Film, which clearly support the said oral version of P.W.1 and P.W.2 relating to the injuries, line of treatment and length of treatment. Further, in the said road traffic accident, the Petitioner had sustained 5 grievous injuries, which are clearly stated by the P.W.1 and P.W.2, which clearly tallied with the contents of the above said medical documents. Further, at the time of accident, the said Petitioner was 33 years old. Further, to discard the said medical evidence, nothing is available on record on behalf of the Respondent. Hence, based on the said oral version of P.W.1 and P.W.2 coupled with the contents of the said medical documents, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 32% to the whole body, as stated by the P.W.2 is believable and acceptable one.
18 M.V.C.No.2033/2015SCH-7
24. But, based on the grounds that, due to the said accidental injuries, the Petitioner is suffering permanent physical and functional disability of 32% to the whole body, it cannot be said that, the Petitioner is entitled for compensation towards loss of future income, which caused to him due to the said accidental injuries, as, it is clear from the evidence of P.W.1 and P.W.3 that, after taking necessary and required treatment to the said accidental injuries, the Petitioner has continued the same job and getting same salary. In this regard, the P.W.1 has stated that, he is a Senior System Analyst. Further, the P.W.1 and P.W.3 nowhere stated in their evidence that, after the accident, the Petitioner left the job as he is suffering from the said difficulties and disability due to the said accidental injuries, which caused problem to do the said job. Even, in this regard, no authenticated documents issued by his employer are produced by the Petitioner. Hence, the Petitioner is not entitled for compensation towards loss of future income arising out of the permanent physical and functional disability of 32% to the whole body, which caused due to the accidental injuries.
25. However, in the said road traffic accident, the Petitioner had sustained 5 grievous injuries and by admitting as an inpatient totally for 52 days, he took treatment to the said accidental injuries at Hosmat Hospital and due to the said accidental injuries, he is suffering from permanent physical and functional disability of 32% to the whole body and he was 33 year old at the time of accident, the Petitioner is entitled for compensation under the following heads.
19 M.V.C.No.2033/2015SCH-7
26. As per Ex.P.3 Wound Certificate and Ex.P.8 Discharge Summary and evidence of P.W.1 and P.W.2, the Petitioner had sustained five grievous injuries. The Petitioner was in the Hospital as an inpatient from 31.01.2015 to 05.03.2015, i.e., for 34 days and from 06.03.2015 to 23.03.2015, i.e., for 18 days, totally for 52 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 1,00,000/- towards pain and suffering.
27. As it is already observed that, the age of the Petitioner was 33 years. He has to lead remaining his entire life with 32% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 50,000/- towards loss of amenities of life to the Petitioner.
28. The P.W.1 has stated that, due to the said accident, he was on personal leave for two days on 2nd and 3rd February, 2015, Privilege leaver for 35 days from 4th February to 10th March, 2015, Special Leave at 50% pay for 10 days from 11th March to 20th March, 2015 and Leave without pay for 17 days from 21st March to 31st March and 1st April to 8th April, 2015 and he was loss of income during the said leave period, which is Rupees 7,894/-, Rupees 1,34,322/-, Rupees 17,824/- and Rupees 61,318/-, totally Rupees 2,21,358/-. The P.W.3, who is an employer of the Petitioner, has also stated the same evidence of P.W.1, in his examination-in-chief. He has further stated that, after the accident, the Petitioner was absent from duty and he was on leave 20 M.V.C.No.2033/2015 SCH-7 during the said period. The Petitioner has produced Ex.P.9 Letter dated 11.12.2015 issued by C.K. Birala Group, which also clearly disclosed about the kind of leaves, days, duration and amount, which are clearly tallied with the said oral version of P.W.1 and P.W.3. Further, the P.W.3 has clearly stated that, the said Ex.P.9 Loss of Pay certificate issued by their Company. From this material evidence, it is made crystal clear that, after the accident, the Petitioner had applied leave, i.e., personal leave, privilege leave, special leave at 50% pay and leave without pay, which is totally amounting of Rupees 2,21,358/-, which clarify the facts that, the Petitioner had lost income of Rupees 2,21,358/- during laid-up period. The Petitioner had sustained five grievous injuries and he was in the Hospital as an inpatient for 52 days and he could not do any work during the treatment period and thereby, he deprived the said income. Therefore, the Petitioner is entitled for a sum of Rupees 2,21,358/- towards loss of pay during the laid up period.
29. The P.W.1 has stated that, on account of the injuries caused in the said accident, he has spent more than Rupees 4,00,000/- towards medical expenses and he has got medical reimbursement facility from National Insurance (Vipul Medcorp Private Limited) on account of his contract of employment, the Medical Bills during his stay as an inpatient was reimbursed in part by the said National Insurance Company Limited and however, during the follow-up outpatient treatment, he has spent more than Rupees 1,50,000/- towards medical treatment and now he has produced Medical Bills amounting of Rupees 1,29,720-99 21 M.V.C.No.2033/2015 SCH-7 and serial numbers from 1 to 88 and Rupees 25,000/- for follow- up treatment. He has further stated that, totally medical expenses incurred in respect of outstanding inpatient final bill of first admission from 31.01.2015 to 05.03.2015 is of Rupees 7,69,692/- , Co-payment by him from his pocket is of Rupees 75,834 and payment made by Vipul Medcorp Pvt. Ltd., is of Rupees 6,93,858/- and total medical expenses incurred by him in respect of outstanding inpatient final bill of second admission from 06.03.2015 to 23.03.2015 is of Rupees 60,200/- and payment made by him from his pocket is of Rupees 60,200/-. He has further stated that, the payment made by him is Rupees 75,834/- for first admission from 31.01.2015 to 05.03.2015 and Rupees 60,200/- for second admission from 06.03.2015 to 23.03.2015, totally Rupees 1,36,034/-. He has further stated that, apart from the said expenses, he has also incurred a sum of Rupees 1,29,720-99 and Serial No.1 to 88 towards pharmacy expenses and as such, he is entitled to Rupees 1,29,720-99 + Rupees 1,36,034/-, in all Rupees 2,65,754-99. In this regard, the Petitioner has produced Ex.P.15 Duplicate Inpatient Credit Bill amounting of Rupees 7,69,692/-, Ex.P.17 Deposit Receipts 4 in numbers, Ex.P.18 Medical Bills 88 in numbers, which is amounting of Rupees 1,29,720-99. The has also produced Ex.P.16 Letter dated 02.03.2015 issued by Vipul Medcorp Pvt. Ltd., which disclosed that, it has paid Rupees 6,93,858/- towards medical expenses of the Petitioner out of the amount of Rupees 7,69,692/-, which is shown in Ex.P.15 Duplicate Inpatient Credit Bill. From this, it appears that the remaining amount of Rupees 75,834/-, which included in Ex.P.15 Duplicate Inpatient Credit 22 M.V.C.No.2033/2015 SCH-7 Bill after deducting the amount of Rupees 6,93,858/-, which was paid by Vipul Medcorp Pvt. Ltd., is paid by the Petitioner. Therefore, the Petitioner is entitled for the said amount of Rupees 75,834/- in respect of Ex.P.15 Duplicate Inpatient Credit Bill. The Petitioner has not produced any documents to show that, he has paid Rupees 60,200/- for second admission from his pocket. Therefore, the Petitioner is not entitled for the said amount of Rupees 60,200/- as stated by him his examination-in-chief. The Petitioner has taken treatment at Hosmat Hospital, wherein, he was taken treatment as an inpatient from 31.01.2015 to 05.03.2015, i.e., for 34 days and from 06.03.2015 to 23.03.2015, i.e., for 18 days, totally for 52 days. Considering the nature of the injuries and line of treatment given to the Petitioner and length of treatment, the possibility of spending the said amount of Rupees 75,834/- covered under Ex.P.15 Duplicate Inpatient Credit Bill and Rupees 1,29,720-99 covered under Ex.P.18 Medical Bills for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 75,834/- and Rupees 1,29,720-99, totally Rupees 2,05,554-99, which is rounded off Rupees 2,05,555/- to the Petitioner.
30. The P.W.1 has stated that, the doctors at Hosmat Hospital have advised him to undergo surgery for tendon transfer for foot drop and removal of DCP right humerus and the cost of the said surgeries at Hosmat Hospital is Rupees 1,60,000/- only. The P.W.2 has stated that, the Petitioner is advised to undergo surgery for implant removal right humorous, which will cost Rupees 50,000/-, the Petitioner needs daily application of Vaseline 23 M.V.C.No.2033/2015 SCH-7 over a large skin graft area which will cost Rupees 15,000/- annually for the rest of his life, the Petitioner is advised to wear foot drop splint and a night splint which will cost Rupees 4,000/- annually, the Petitioner is advised to undergo ankle fusion of his right lower limb which will cost Rupees 1.2 lakhs, the Petitioner has a high chance of developing arthritis of his left hip as both the columns of the left acetabulum were fractured and had to be reconstructed and in the event of this happening he will require a total hip replacement which will cost Rupees 2.5 to 3 lakhs and the finds mentioned in the disability assessment correlate with the problems mentioned by the Petitioner in the problem statement. The Petitioner has produced Ex.P.12 Letter issued by Hosmat Hospital, which disclosed that, the Petitioner requires tendon transfer for foot drop and removal of DCP right humorous and the estimated cost of these surgeries will be approximately Rupees 1,60,000/- in Hosmat Hospital, Bangalore. It is clearly mentioned in Ex.P.8 Discharge Summary about ORIF recon plate left illium (5 holed) + 12 holed recon plate left anterior column of cetabulum + evacuation of haematoma right thigh + left upper tibial skeletal traction on 03.12.2015, ORIF 8 holed LCP right humerus on 05.02.2015, ORIF 9 holed recon plate left post Column + 8 holed plate left posterior wall left acetabulum on 09.02.2015, wound debridement right thigh on 09.02.2015, major wound debridement on right thigh on 16.02.2015, wound debridement + SSG right thigh on 19.02.2015 and wound debridement and SSG right thigh on 27.02.2015. Therefore, the Petitioner requires the amount for future medical expenses. But, the Petitioner is not entitled for compensation towards future medical expenses, as, he is having 24 M.V.C.No.2033/2015 SCH-7 National Insurance Vipurl Medcorp Pvt. Ltd., facility. Further, the Petitioner has not disclosed that, he has no medical reimbursement facility from his employer. Hence, the Petitioner is not entitled for compensation towards future medical expenses.
31. As the Petitioner was taken treatment as an inpatient for 52 days, it is necessary to award a sum of Rupees 10,000/- towards conveyance charges, Rupees 10,000/- towards attendant charges and Rupees 15,000/- towards food, nourishment and diet charges etc.,
32. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Pain and sufferings Rs. 1,00,000-00
2. Loss of amenities of life Rs. 50,000-00 Loss of income during laid
3. Rs. 2,21,358-00 up period
4. Actual medical expenses Rs. 2,05,555-00
5. Conveyance Rs. 10,000-00
6. Attendant Charges Rs. 10,000-00 Food, Nourishment &
7. Rs. 15,000-00 Diet charges TOTAL Rs. 6,11,913-00
33. In all, the Petitioner is entitled for total compensation of Rupees 6,11,913/- along with interest at the rate of 9% per annum on the above said sum from the date of petition till payment.
25 M.V.C.No.2033/2015SCH-7
34. While answering Issue No.1, this Tribunal has already come to the conclusion that, due to very high speed, rash and negligent manner of driving of the offending Tipper Lorry bearing Registration No.KA-22-A-4329 by its driver itself, the said road traffic accident was taken place, wherein, the Petitioner had sustained five grievous injuries and the offending Tipper Lorry bearing Registration No.KA-22-A-4329 as well as its driver are very much involved in the said road traffic accident. The Petitioner has clearly mentioned in the cause title of the petition that, the Respondent is an Owner of the offending Tipper Lorry bearing Registration No.KA-22-A-4329. It is clearly alleged by the Investigation Officer in Ex.P.7 Charge Sheet that, at the time of accident, the driver of the offending Tipper Lorry bearing Registration No.KA-22-A-4329 was not having a valid and effective driving licence to drive such class of offending Tipper Lorry and the said offending Tipper Lorry was not having valid Insurance Policy and F.C. Section 187, 3(1), 181, 146, 196, 56 and 192 of IMV Act are inserted along with Section 279 and 338 of IPC in Ex.P.7 Charge Sheet as against the driver of the said offending Tipper Lorry by the Investigating Officer. From the said material evidence, it is made crystal clear that, at the time of accident, the driver of the offending Tipper Lorry bearing Registration No.KA-22- A-4329 was not having a valid and effective driving licence to drive such class of offending Tipper Lorry and the said offending Tipper Lorry was also not having valid Insurance Policy and F.C. Hence, the Respondent being the R.C. Owner of the offending Tipper Lorry bearing Registration No.KA-22-A-4329 is liable to pay the above 26 M.V.C.No.2033/2015 SCH-7 said compensation and interest to the Petitioner. Hence, Point No.2 is answered accordingly.
35. POINT 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 compensation of Rupees 6,11,913/-
with interest at the rate of 9% p.a. from the date of the petition till the date of payment, from the Respondent.
The Respondent shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 80% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
27 M.V.C.No.2033/2015SCH-7 Remaining 20% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 5th day of August, 2016.) (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 : Sri. Sudhanshu Sehar Patra
P.W.2 : Dr. Krishan Prasad
P.W.3 : Pavankumar Bussa
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Certified copy of FIR
Ex.P.2 : Certified copy of Complaint
Ex.P.3 : Certified copy of Wound Certificate
Ex.P.4 : Certified copy of Spot Hand Sketch
28 M.V.C.No.2033/2015
SCH-7
Ex.P.5 : Certified copy of Spot Panchanama
Ex.P.6 : Certified copy of MVI Report
Ex.P.7 : Certified copy of Charge Sheet
Ex.P.8 : Discharge Summaries (2 in nos.)
Ex.P.9 : Letter dated 11.12.2015 issued
by C.K. Birla Group
Ex.P.10 : Pay Slip for the Months of January
2015 and March 2015 (2 in nos.)
Ex.P.11 : Notarized Xerox copy of Identity
Card relating to Sudhansu Patra
Ex.P.12 : Letter issued by Hosmat Hospital
Ex.P.13 : Photographs (5 in nos.)
Ex.P.14 : CD relating to Ex.P.13 Photographs
Ex.P.15 : Duplicate inpatient Credit Bill
Ex.P.16 : Letter dated 02.03.2015 issued by
Vipul Medcorp Pvt. Ltd.,
Ex.P.17 : Deposit Receipts (4 in nos.)
Ex.P.18 : Medical Bills (88 in nos.)
Ex.P.19 : Outpatient Record
Ex.P.20 : Inpatient Records (2 in nos.)
Ex.P.21 : X-ray Reports (15 in nos.)
Ex.P.22 : X-ray Films (5 in nos.)
Ex.P.23 : Authorisation Letter
3. WITNESSES EXAMINED BY THE RESPONDENT :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENT :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.