Bangalore District Court
Sri. Aleem Ulla Khan vs ) Sri. Ponnuswamy on 30 January, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 30th DAY OF JANUARY, 2016
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.1838/2011
Petitioner/s Sri. Aleem Ulla Khan,
S/o Sri. Kalendra,
Aged about 22 years,
Occ:Cleaner,
R/o S.B.R. Main Road,
11th Cross, A.R. Palace,
Nagawara, Bengaluru-06.
(By Pleader - Sri.Suresh M.Lattur.)
V/s
Respondent/s 1) Sri. Ponnuswamy,
S/o Muthusamy,
A.M. Road, Mokukchung,
Nagaland-798 601.
(Owner of Lorry bearing
Reg.No.NL-02 D-9977)
(By Pleader - Exparte.)
2) The Manager,
ICICI Lombard General
Insurace Co. Ltd.,
No.89, Hosur Main Road,
2nd Floor, P.V.R. Complex,
Madivala, Koramangala,
Bengaluru-68.
(Policy No.3003/A/58279793
/00/000)
(SCCH-15) 2 MVC.1838/2011
Valid from 29.12.2009 to
28.12.2010)
(By Pleader - Sri.B.Pradeep.)
JUDGMENT
Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 04.12.2009 at about 5:00 a.m., he was proceeding in the Tata Ace bearing registration No.KA-04-C-724 on NH-4. The driver drove the same in rash and negligent manner. At the same time, the lorry bearing registration No.NL-02 D- 9977 which was proceeding ahead to their vehicle, all of a sudden applied brake due to which their vehicle dashed the lorry.
b) Due to the impact, he has suffered severe injuries. Accident took place solely due to rash and negligent driving of the lorry driver. Therefore, 1st (SCCH-15) 3 MVC.1838/2011 respondent being the RC owner and 2nd respondent being the insurer are jointly and severally liable to pay the compensation. Hence, prayed to allow the petition as sought for.
4. In response to due service of notices, 1st respondent remained exparte. 2nd respondent put its appearance through its counsel and filed its statement of objections to the main petition denying the petition averments.
b) However, it has admitted the policy and its force on the date of accident, but has contended that its liability if any is subject to the terms and conditions of the policy such as driving licence and the vehicular documents.
c) It has called the petitioner to prove his case with strict proof on actionable negligence of the lorry driver in occurrence of the accident and prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, my learned predecessor in office i.e. the then presiding officer of SCCH-10 was pleased to frame the following issues. (SCCH-15) 4 MVC.1838/2011
1. Whether petitioner proves that he has sustained injuries in the motor vehicle accident that occurred on 04.12.2010 at about 5:00 a.m. on NH-4, near Bettarahalli, within the jurisdiction of Avalahalli traffic police station on account of rash and negligent driving of the goods vehicle bearing registration No.KA- 04 C-794 and lorry bearing registration No.NL-02 D-9977 by its driver as alleged in the petition?
2. Whether petitioner is entitled to the compensation? If so, what is the quantum and from whom?
3. What order or award?
6. To prove the above said issues and to substantiate their respective contentions, petitioner himself has entered into witness box as PW-1. He has got examined the doctor who has treated and assessed the disability as PW-2; the medical record technician of Ambedkar hospital as PW-3; the medical record officer of Victoria hospital is examined as PW-4 to cause production of case sheet; the alleged eyewitnesses by name Mitesh and Imran respectively as PWs-5 and 6. Totally got exhibited 16 documents and closed his side. (SCCH-15) 5 MVC.1838/2011
b) Per contra, 2nd respondent got examined its earlier Manager as RW-1. Subsequently, stating that RW- 1 was not available for cross-examination, his evidence got discarded as per the order dated 09.11.2015 and got examined present legal manager as RW-2. Got exhibited 3 documents and closed its side.
c) Heard arguments of both the sides on merits of the case. In support of his arguments, the counsel for petitioner has filed memo along with xerox copies of the decisions reported in;
1) 2005 ACJ 350 (KAR) Page No.01 to 09,
2) 2004 ACJ 1148 (KAR) Page No.10 to 13,
3) 2009 ACJ 1314 (S.C.) Page No.14 to 16,
4) 2011 ACJ 990 (KAR) Page No.17 to 21,
5) 2014 ACJ 704 (S.C.) Page No.22 to 24,
6) 2014 ACJ 653 (S.C.) Page No.25 to 28,
7) 2014 ACJ 627 (S.C.) Page No.29 to 34, and
8) 2013 ACJ 2131 (S.C.) Page No.35 to 40.
d) Per contra, the counsel for 2nd respondent has filed memo along with xerox copies of the decisions reported in;
1. 2005 ACJ 1323
2. 2007 ACJ 1928 and
3. 2007 ACJ 1284.
(SCCH-15) 6 MVC.1838/2011
d) This Tribunal has carefully gone through the reported decisions and perused the record. At this stage, it is found that PW-5 is not tendered for cross- examination and cross-examination also taken as nil, an opportunity is given to the petitioner to tender PW-5 for cross. But it is the submission of the counsel for petitioner that PW-5 is not available and he prayed to discard the evidence of PW-5. Accordingly, as per order dated 23.01.2016, evidence of PW-5 is discarded.
7. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Affirmative.
2. Issue No.2: Petitioner is entitled for compensation of Rs.18,17,400/-
together with interest at 8% p.a. on Rs.17,92,400/-
(excluding future medical expense of Rs.25,000/-) from the date of petition till the realization of the compensation in its entirety from 2nd respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS (SCCH-15) 7 MVC.1838/2011
8. ISSUE No.1:- If the above observed pleadings of the parties are taken note off, there is no dispute with regard to the alleged accident; the date, time and place of accident; the vehicles involved in the accident as well as respective drivers of the vehicles and also the fact that petitioner was inmate of the Tata Ace at the time of accident. So, now the only point that remained for the due consideration of this Tribunal for the proper adjudication of this issue is the rash and negligent act of whom resulted in the accident.
9. However, to establish that as observed above, petitioner himself is examined as PW-1. He has filed his affidavit evidence wherein he has reiterated the petition averments. He has specifically deposed that accident took place because of negligent driving of the lorry driver. He has denied the suggestion that there is no negligence on the part of lorry driver and the accident took place because of Tata Ace.
10. To substantiate his case in support of his oral evidence, petitioner has also got examined PW-5, the (SCCH-15) 8 MVC.1838/2011 alleged eyewitness by name Mitesh S/o Chandulal but as noted above subsequently, he got discarded the evidence of PW-5 as per order dated 23.01.2016. Therefore, as of now, the evidence of PW-5 is not on record.
11. PW-6 is admittedly the younger brother of the petitioner who was alleged to be along with petitioner in Tata Ace vehicle at the time of accident has filed his affidavit evidence wherein he has specifically deposed that he was loader and unloader of Tata Ace vehicle, at that time, the lorry which was ahead of Tata Ace vehicle had applied sudden brake without giving any signal, because of which accident took place in which he has suffered injuries and his brother i.e. petitioner herin has suffered injuries, resulting in the amputation of left leg.
12. In his cross-examination on behalf of 2nd respondent it is suggested that except the petitioner and the driver, none other else in the vehicle. At this stage, he voluntarily deposed that that he was in the vehicle. He has also deposed that he went along with his brother i.e. petitioner as unloader. He has admitted the suggestion that he has no impediment to produce the copy of his (SCCH-15) 9 MVC.1838/2011 alleged statement before the police, but admittedly, no such statement is produced by PW-6.
13. However, PW-6 has produced Ex.P-16, the wound certificate pertains to him issued by Bowring hospital which reveals that PW-6 was taken to the said hospital with the history of RTA between Tata Ace vehicle and lorry dated 04.12.2015 at around 5:30 p.m. near Battarahalli, K.R.Puram while he was traveling in Tata Ace vehicle and the case is registered in MLC.136/137/40/10.
14. So, the contents of Ex.P-16 particularly history of injuries is very much in support of the oral evidence of PW-6 about his presence in Tata Ace vehicle. Therefore, there is nothing on record to disbelieve the oral evidence of PW-6.
15. In support of its defence, 2nd respondent got examined its Legal Manager as RW-2 who has filed his affidavit evidence wherein he has stated that as per the police papers, it is clear that accident is because of negligent driving of Tata Ace vehicle and there is no negligence on the part of the lorry driver. But for the (SCCH-15) 10 MVC.1838/2011 reasons best known to him, petitioner did not make the RC owner an insurer of Tata Ace as parties to the proceedings.
16. In support of his case petitioner has produced the police papers at Ex.P-1 and 2 i.e. true copies of FIR with complaint and mahazar which reveals that the jurisdictional police initially have registered the criminal case against the Tata Ace driver on the complaint of the lorry driver.
17. 2nd respondent in support of its defence, has produced Ex.R-3, 'C' report filed on the complaint at Ex.P-1 wherein it is stated that since the accused driver and the RC owner did not trace out, 'C' report is filed. But admittedly, it has not got examined either the author or the custodian of the police papers to substantiate those documents.
18. It is the arguments of the counsel for petitioner that in case of composite negligence, the claimant is entitled to proceed against either of the vehicles. In support of his oral arguments, he has relied on the decision reported in 2005 ACJ 350 (Shrimanti and (SCCH-15) 11 MVC.1838/2011 others V. Krishna Deva Madiwal and others) wherein it is held by the Hon'ble High Court of Karnataka, Bengaluru that;
"Negligence - contributory negligence - Hitting from behind - Corporation bus at fast speed was suddenly stopped by its driver in the middle of the road without giving any signal and the motor cyclist following the bus could not stop his vehicle and hit against the bus resulting in his death - Defence that deceased was himself rash and negligent in driving the motor cycle - Claimants produced an eye witness who was a passenger in the bus and he deposed that bus over took the motor cycle and thereafter suddenly stopped without giving any signal in the middle of the road - Corporation did not produce any evidence in rebuttal or examine its driver to explain the circumstances under which the bus had stopped abruptly or that the deceased had reasonable time and space to bring the motor cycle to a halt - Motorcyclist did not maintain safe distance between the two vehicles and failed to control his vehicle - Tribunal held that no actionable negligence can be attributed to the driver of the bus and the accident had occurred entirely due to rash and negligent driving by the motorcyclist - Whether the deceased motorcyclist contributed towards the accident and the bus driver is not solely responsible for the same - Held (per T.S. Tahkur & S.B.Majage JJ.): yes : motorcyclist is responsible for the accident to the extent of 25 per cent and bus driver to the extent of 75 per cent; Held (per S.R.Nayak kJ.): No; bus driver is solely responsible for the accident;.
It is also observed that;
"Words and phrases - Contributory negligence
- What is - contributory negligence means some act (SCCH-15) 12 MVC.1838/2011 or omission on the part of claimant which is materially responsible for the damage caused to him
- The term squarely and solely applies to the conduct of the claimant alone.
19. The Counsel for petitioner has also relied on the decision reported in 2004 ACJ 1148 (Zaren Bega V. New India Assurance Co. Ltd. and others) wherein the Hon'ble High Court of Karnataka, Bengaluru held that;
"Negligence - contributory negligence - Truck 'A' at fast speed dashed against truck 'B' coming from the opposite direction and driver of truck 'B' sustained fatal injuries - Cleaner of truck 'B' corroborated claimant's version and his statement remained uncontroverted - Defendants have neither pleaded contributory negligence of the deceased nor adduced any evidence in this regard - Tribunal attributed contributory negligence to the deceased on the basis of police records - Cleaner's evidence is legal whereas policy record is not legal evidence as author or custodian of police record has not been examined - Tribunal held that drivers of both the trucks were equally negligent - Tribunal's finding reversed in appeal and held that driver of truck 'A' is solely responsible for the accident."
20. Counsel for petitioner has also drawn the attention of this Tribunal to the decision reported in 2009 ACJ 1314 (Usha Rajkhowa and others V. Paramount Industries and others) wherein the Hon'ble Supreme Court of India at New Delhi has held that; (SCCH-15) 13 MVC.1838/2011
"Negligence - contributory negligence - Res ipsa loquitur - Collision between a truck and car coming from opposite directions resulting in death of car driver and a passenger and another passenger sustained injuries - Injured passenger deposed that truck was coming from opposite direction at high speed and hit the car which was going on its correct side but he could not clearly say as to which vehicle was at fault - Insurance company of truck failed to bring panchanama of spot showing tyre marks caused by brakes and panchanama of damaged vehicles - No evidence to suggest any failure of car driver in taking care or that he had breached his duty in any manner - Impact by truck to the car was so powerful that two persons in the car died on the spot - Tribunal has not given any finding of contributory negligence of the deceased car driver - Words "contributory negligence' nowhere appear in the award of the Tribunal - Tribunal awarded to the claimants half of the amount assessed from where interference could be drawn that Tribunal gave a finding of contributory negligence - High Court referring to the evidence of the witness confirmed contributory negligence of the car driver - Apex Court applying the doctrine of res ipsa loquitur held that accident took place due to negligence of truck driver and there was no negligence of car driver.'
21. The counsel for petitioner has also drawn the attention of this Tribunal to the decision reported in 2011 ACJ 990 (H.S.Swarnalatha and others V. Vice Chairman & Managing Director, Karnataka State Road Transport Corporation) wherein the Hon'ble High Court of Karnataka, Bengaluru has held that ; (SCCH-15) 14 MVC.1838/2011
"Negligence - Collision between Corporation bus and tractor-trailer coming from opposite directions and a passenger in bus sustained fatal injuries - Claimants filed claim against Corporation contending that accident occurred due to negligence of bus driver - Sketch of scene of accident prepared by the police shows that accident occurred in the centre of 15½ feet tar road - According to evidence of bus driver, tractor driver after seeing on coming bus immediately swerved his vehicle to his left and while trailer was in the process of following tractor, bus hit trailer - No damage to front portion og tractor shows that tractor did not hit the bus - Site map indicates tyre marks of bus for 100 feet prior to the and 120 feet after actual collision point which shows that bus was being driven at fast speed and its driver could not control and bring it to half after seeing the tractor
- Evidence of bus driver that tractor came to the wrong side of its road cannot be accepted as the tractor was found almost on the left side of its road - Sketch shows that there was curve on the road, tractor had crossed it and the bus was to enter it, bus driver ought to have slowed his bus but he was driving at fast speed and could not bring it to half even after seeing the tractor from a distance of 100 to 150 feet - Tribunal relying upon judgment in another proceeding arising out of the same accident held that bus driver was not negligent and dismissed the claim application - Tribunal's finding reversed and held that accident occurred due to negligence of bus driver if not to the full extent at least to greater extent .
It is also held in the above decision that;
"Motor Vehicles Act, 18988, section 166 - Claim application - Maintainability of - Joint tortfeasors - Non-joinder of necessary party - collusion between a corporation bus and tractor - trailer resulting in death of a passenger in bus - Claimant filed claim against corporation contending negligence of bus driver - Corporation objected that (SCCH-15) 15 MVC.1838/2011 claim application is bad for non-joinder of necessary parties as the driver, owner and insurance company of tractor-trailer have not been impleaded - Tribunal found that accident occurred solely due to negligence of tractor driver, there was no negligence of bus driver and dismissed the claim application - Appellate court found that accident occurred due to negligence of bus driver at least to greater extent if not to full extent - Claimant can proceed against all or any one of the joint tortfeasors - Whether claim application can be rejected on the premise that the other joint tortfeasor has not been impleaded - Held :
no; joint tortfeasor can take steps to rope in other joint tortfeasor for claiming contribution in the event of claimant recovering entire compensation from him".
22. The counsel for petitioner has also relied on the decision reported in 2014 ACJ 704 (Pawan Kumar and another V. Harkrishna Dass Mohan Lal and others) wherein the Hon'ble Apex Court has held that;
"Negligence - Composite negligence - Joint tortfeasors - Liability of - Accident between a jeep and truck coming from opposite directions due to negligence of both drivers resulting in death of two passengers in jeep and their passenger sustained injuries - Truck flied from the spot and its driver/ owner/Insurance company could not impleaded - Tribunal found that truck driver alone was responsible for the accident and no compensation can be awarded to the claimants in the absence of parties of the truck - High Court found that both the drivers were responsible for the accident in the ratio of 70:30 for truck driver and jeep driver and made parties of jeep liable to pay 30 percent of the compensation awarded in each claim - Apex Court observed that this being a case of composite (SCCH-15) 16 MVC.1838/2011 negligence no need for High Court to apportion liability for accident between the two drivers, principle of contributory negligence not applicable - Whether driver/owner of both vehicle are jointly and severally liable to pay entire compensation awarded and claimants are entitled to enforce the award against both or any of them - Held:yes".
23. In the present case on hand also, petitioner got examined his younger brother/PW-6 who was in the Tata Ace vehicle at the time of accident. Per contra, 2nd respondent has not let in the evidence of an eye witness to rebut the evidence of PW-6.
24. Admittedly it is the defence of 2nd respondent that the accident is because of the negligence of Tata Ace driver in which the petitioner was passenger. It is not its case that the negligence of petitioner himself resulted in the accident. So, in view of the above observations made in the citation noted above, the present case is not of contributory negligence, but it is of the composite negligence.
25. In present case on hand also, to establish its defence 2nd respondent has let in the evidence of RW-2 who is admittedly not an eye witness to the accident. It (SCCH-15) 17 MVC.1838/2011 has placed it reliance on the police papers but admittedly, it has not got examined either the author or the custodian of the police records. So, the best evidence let in is of the petitioner.
26. Since, as noted above, it is the case of composite negligence and not of contributory negligence it cannot shrink its liability stating that the accident is because of the negligence of Tata Ace and also that the driver/RC owner/insurer of Tata Ace are not made as parties to the proceedings. At best, at best it would have impleaded the driver, RC owner and the insurer of Tata Ace Vehicle and prove that there is negligence or contributory negligence on the part of Tata Ace vehicle in occurrence of the accident.
27. So far the injuries he has suffered in the accident, petitioner with his oral evidence has also got adduced oral evidence of doctor who has treated and assessed the disability i.e. PW-2 who has filed his affidavit evidence in support of the case of petitioner about petitioner suffering injuries in the present accident.
(SCCH-15) 18 MVC.1838/2011
28. In addition, petitioner has produced the medical records such as wound certificate, discharge card, discharge summary, photos with CD, medical bills and prescriptions in his initial chief evidence respectively at Ex.P-3 to 9 in his chief evidence and in the evidence of PW-2, he got produced outpatient card, case sheets and x-rays at Ex.P-10 to 12.
29. Petitioner has also got produced case sheet at Ex.P-13 through PW-3 and in the evidence of PW-4 case sheet at Ex.P-15. All the medical records are in clear consonance with the oral evidence of PW-2 and thereby the case of petitioner about his suffering injuries in the accident.
30. Moreover if the line of cross-examination conducted on behalf of 2nd respondent to the petitioner and the doctor is taken note off, it is clear that even it has raised objections with regard to the nature of injuries, nature of treatment, quantum of disability and the quantum of medical expenditure, it has not at all disputed the fact of petitioner suffering injuries in the accident.
(SCCH-15) 19 MVC.1838/2011
31. Therefore, there is nothing on record to discard the oral evidence of petitioner supported by the oral evidence of PWs-2 to 6 as well as medical records noted above whereby petitioner has successfully established that the present accident is because of negligent driving of the lorry driver and he has suffered injuries in the present accident. Therefore, this issue is answered in affirmative.
32. ISSUE No.2:- In view of answering issue No.1 in affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 22 years; was a cleaner and had income of Rs.6,000/- per month. To establish that, petitioner with his oral evidence has not produced any supportive age proof document.
33. However in the medical records, his age is shown as 22 years. There is no cross-examination at all about the age of petitioner mentioned in the medical records which is in support of the pleadings of the petitioner. Hence, the age of petitioner is accepted as 22 years, for which the proper multiplier applicable is 18. (SCCH-15) 20 MVC.1838/2011
34. To establish his avocation and income, there is no supportive evidence to the oral evidence of petitioner either oral or documentary. Therefore, considering the age of petitioner and cost of living on the date of accident, it is thought just and proper to take notional income of petitioner at Rs.6,000/- per month.
35. It is the case of petitioner that in the accident he has suffered fracture shaft of right femur, fracture shaft of left femur, fracture of left tibia and fibula and other grievous injuries all over the body; took treatment in Bowring hospital and thereafter in Victoria Hospital, Bengaluru and still under treatment.
36. It is also his case that he has already incurred expenditure of Rs.1,20,000/- and became permanently disabled because of accidental injuries. Petitioner has reiterated the above petition averments in his affidavit evidence. In his cross-examination his chief evidence is denied by way of suggestions which are in turn denied by him.
37. PW-2/the doctor who has treated and assessed the disability has filed his affidavit evidence wherein he (SCCH-15) 21 MVC.1838/2011 has stated that petitioner was admitted to their hospital with a history of RTA on 04.12.2009; was diagnosed for Type III compound fracture of both bones of left leg which was treated in the form of wound debridement with limb reconstruction system as well as external fixator on 09.12.2010.
38. He has also deposed that fracture shaft of right femur was treated surgically in the form of open reduction internal fixation with IMIL nail on 03.01.2011; fracture shaft of left femur was treated in the form of ORIF with IMIL nail on 13.12.2010; split skin grafting done on 10.01.2010 and petitioner was discharged at request on 27.01.2011.
39. It is also in his affidavit evidence that petitioner was also admitted for 2nd time at Victoria hospital on 07.02.2011; was diagnosed for post traumatic raw area left leg middle one third which was treated conservatively and he was discharged on 28.02.2011.
40. He has also deposed that petitioner was admitted for 3rd time at Bowring hospital on 29.03.2011 and was diagnosed for earlier acetabular fracture (SCCH-15) 22 MVC.1838/2011 dislocation right hip; was managed conservatively and was discharged on 16.04.2011.
41. He has also stated that petitioner was also admitted for 4th time at Ambedkar Medical College hospital on 04.06.2011 and was diagnosed for infected non union of both right and left femur with implants IMIL nail in situ with exposure of bone in lower one third of left leg with foot drop left; treated conservatively as well as discharged on 09.07.2011.
42. It is also in his affidavit evidence that petitioner was admitted for 5th time in Ambedkar Medical College hospital on 20.11.2011; was diagnosed for infected non union of left femur with IMIL nail in situ with dislocation and Avascular nerosis of femoral head and Gap union of left tibia with external fixator; was treated surgically in the form of IMIL nailing for left femur and below knee amputation of left leg on 15.02.2012 and was discharged on 09.07.2011.
43. It is also in his evidence that he has recently examined the petitioner on 30.06.2012 for assessment of disability. On clinical examination and radiological (SCCH-15) 23 MVC.1838/2011 examination as well as on complaints of petitioner, it is found that petitioner is having permanent physical impairment to the left lower limb at 44.44% which comes to the whole body at 22%.
44. He has also deposed that since there is amputation of below knee of left leg, he has 60% disability to particular limb which comes to 30% of whole body. Thus, petitioner is totally having permanent physical impairment at 52% to the whole body.
45. It is also in his affidavit evidence that radiological examination revealed that there is mal union of fracture of right femur and left femur with implants in situ and non visualization of distal 2/3 of tibia and fibula of left leg due to post amputation status.
46. It is also in his affidavit evidence that since petitioner is having 52% disability to the whole body, he cannot continue his work as cleaner in the lorry and petitioner is advised to have an artificial leg fitted to his left leg which is light weight cosmetically acceptable, skin colour, modular, synthetic fiberglass resin made computer assisted, design durable user friendly, (SCCH-15) 24 MVC.1838/2011 complications free and will cost approximately around Rs.2,00,000/-.
47. In his evidence he has produced outpatient card, case sheets and x-rays respectively at Ex.P-10 to12. In his cross-examination he has deposed that he has treated the petitioner personally. He has denied the suggestion that the injuries mentioned in his affidavit evidence are not reflected in the wound certificate and the amputation is because of different line of treatment.
48. If the documents produced on behalf of the petitioner are taken note off, Ex.P-3 is the wound certificate of Bowring hospital which reveals that petitioner was taken to the hospital immediately after the accident at 6:10 a.m. on the very day i.e. on 04.12.2010.
49. It is also there that petitioner was diagnosed for deformity with swelling and tenderness over the left thigh, laceration deep with skin flap at interior medial one third of left leg, multiple abrasion over the upper thigh right, abrasion over the left frontal region and x-ray reveals fracture of shaft left of tibia and fibula and all the injuries are grievous.
(SCCH-15) 25 MVC.1838/2011
50. It is noted therein that petitioner was treated surgically in the form of wound debridement of left leg on 09.12.2010, ORIF with IM nail left leg on 13.12.2010 and ORIF IM nail right leg on 03.01.2011.
50. Ex.P-4 is the discharge card of Victoria hospital which reveals that petitioner was admitted to their hospital on 07.02.2011 and was discharged on 28.02.2011; was diagnosed for PTRA left leg middle one third and was managed conservatively.
51. Ex.P-5 is the discharge card issued by Amedkar Medical College & hospital which reveals that petitioner was admitted to their hospital on 04.06.2011 and was discharged on 09.07.2011; was diagnosed for infected non union of left femur and was treated surgically in the form of IM nailing in the mid shaft and foot drop of left.
52. Ex.P-6 is the discharge summary of the same hospital which reveals that petitioner was admitted to the hospital on 20.11.2011 and discharged on 27.03.2011; was diagnosed for infected non union of left femur with IMIL nail in situ and gap non union of left tibia with external fixator.
(SCCH-15) 26 MVC.1838/2011
53. Discharge card at Sl.No.2 issued by Dr.Ambedkar College hospital which reveals that petitioner was admitted to their hospital on 17.05.2012 and discharged on 15.06.2012; was diagnosed for structure posterior urethrox and fracture of pelvis and he was treated surgically under SA on 11.06.2012.
54. Ex.P-7 is the colour photographs of petitioner reveals amputation of below knee of left leg. Ex.P-10 is OP chit with regard to recent examination. Ex.P-11 is inpatient file of Bowring hospital with regard to admission for the period from 04.10.2010 to 27.01.2011.
55. Ex.P-12 is x-ray with regard to the recent examination. Ex.P-13 is the case sheets of Ambedkar College hospital for the period from 04.06.2011 to 09.07.2011; 07.11.2011 to 06.01.2012; 17.05.2012 to 15.06.2012 as well as for the period from 20.01.2012 to 10.04.2012.
56. Ex.P-15 is the case sheet of Victoria hospital for the period from 03.12.2010 to 07.02.2011. All the said case sheets are in corroboration with discharge summaries and the oral evidence of PW-3 noted above. (SCCH-15) 27 MVC.1838/2011
57. So, if the entire evidence on record is taken into consideration, it can be safely held that petitioner has suffered fracture of both bones of left leg, fracture of femur of femur of both legs; was treated surgically; was admitted to the hospital for 5 times and ultimately he was subjected to amputation of left leg below knee; fractures are mal united with the implants in situ and was advised for artificial limb.
58. To prove the medical expenditure, petitioner with his oral evidence has produced Ex.P-8, the hospital and medical bills totally 30 in nos. amounting to Rs.84,092/-. Those bills are of Bowring hospital, Amedkar College hospital, pharmacy bills and out patient bills and other private medical stores' bills. They are all computerized bills in the name of petitioner and they are original bills duly signed.
59. Moreover, if the nature of injuries suffered by petitioner; nature of treatment he has undergone and the inpatient period are taken note off nothing is there on record to discard the medical expenditure at Ex.P-8. On the other hand, it appears that petitioner has incurred (SCCH-15) 28 MVC.1838/2011 medical expenditure more than that. Therefore, it is just and proper to award compensation of Rs.1,00,000/- toward medical expenditure including bills at Ex.P-8 series.
60. It is in the evidence of PW-2 that petitioner is having permanent physical impairment to the right lower limb at 44.4% and because of amputation of left leg at 60%. Therefore, he has total disability to the whole body at 22 + 30 = 50%. There is no dispute between the parties with regard to the amputation of left leg below knee. Of course, it is the contention of 2nd respondent that amputation is because of different line of treatment adopted. But to substantiate that 2nd respondent has not let in any defence evidence.
61. It is the case of petitioner that he was cleaner. In view of no substantive evidence, his nature of avocation is not accepted. But, in view of taking notional income, this Tribunal should presume that nature of work of petitioner is a manual one.
62. Since petitioner has suffered amputation below knee, this Tribunal can take judicial notice that (SCCH-15) 29 MVC.1838/2011 petitioner cannot do manual work as before the accident. Therefore, it is just and proper to take whole body disability at 50% for assessment of loss of future earning and loss of amenities and comfort and permanent physical impairment.
63. It is evident on record that petitioner is unmarried young aged person of 22 years. Therefore, in view of the decision reported in 2014 AIR SCW 856 wherein it is held that;
"Motor Vehicles Act (59 of 1988), S.168 - Accident - Compensation - Claimant 25 years of age at time of accident - Suffered paralysis, 80% disability - was earning steady income - Addition of 50% to his income could be made - Correct multiplier to be applied would be 15 - Compensation of Rs.19,91,702/- granted to claimant under the heads loss of income, medical expenses further treatment, pain and suffering, mental agony and cost of attendant till he remains alive."
it is thought just and proper to award future prospectus at 30% and also reasonable compensation for marriage prospectus.
64. It is in the evidence of PW-3 that artificial limb comfortable for the use of petitioner may costs around Rs.2,00,000/-. But the petitioner has not produced any (SCCH-15) 30 MVC.1838/2011 document in support of that. Therefore, it is just and proper to award some reasonable compensation towards the cost of artificial limb.
65. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs.1,50,000/-
Loss of income during laid up Rs. 75,000/-
period, Diet, Nourishment and etc.
Attendant charges, Conveyance, Rs. 75,000/-
other Incidental Charges and etc.
Medical Expenditure Rs.1,00,000/-
Future Medical Expenditure Rs. 25,000/-
Loss of Future Income Rs.6,48,000/-
(6,000 x 12 x 50/100 x 18)
30% future prospectus Rs.1,94,400/-
Marriage prospectus Rs.1,00,000/-
Artificial limb Rs.1,00,000/-
Loss of Amenities and Comfort Rs.1,50,000/-
Permanent Physical Impairment Rs.2,00,000/-
Total: Rs.18,17,400/-
66. Petitioner has sought interest at 18% p.a. Considering the cost of living on the date of accident, it is thought fit to award interest at 8% p.a. from the date of petition till realization of the compensation amount in its entirety.
67. Now, in respect of liability. There is no dispute between the parties with regard to the fact that 1st (SCCH-15) 31 MVC.1838/2011 respondent is the RC owner and 2nd respondent is the insurer of the lorry. Of course, 2nd respondent has contended that its liability is subject to the terms and conditions of the policy such as driving licence and vehicular documents.
68. But even it has got examined its legal manager as RW-2 and got exhibited 2 documents, it has concentrated only with regard to rash and negligent aspect. There is no evidence let in by it with regard to its defence of breach of policy conditions. Therefore, 1st respondent being the RC owner is liable to pay the compensation and 2nd respondent being the insurer is liable to indemnify the said liability.
69. So, petitioner is entitled for compensation of Rs.18,17,400/- together with interest at 8% p.a. on Rs.17,92,400/- (excluding future medical expense of Rs.25,000/-) from the date of petition till the realization of the compensation in its entirety from 2nd respondent. Issue No.2 is answered accordingly.
70. ISSUE No.3:- Considering the age of petitioner and the disability he has, it is thought just and proper to (SCCH-15) 32 MVC.1838/2011 direct him to deposit considerable quantum of compensation for a considerable length of time whereby he can get some regular income by way of interest.
71. From the above discussions, this Tribunal proceeds to pass the following order.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for compensation of Rs.18,17,400/- together with interest at 8% p.a. on Rs.17,92,400/- (excluding future medical expense of Rs.25,000/-) from the date of petition till the realization of the compensation in its entirety from 2nd respondent.
2nd respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.15,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years.
Out of the matured amount, Rs.12,00,000/- for further period of 5 years.
Out of the matured amount, Rs.9,00,000/- for further period of 5 years. (SCCH-15) 33 MVC.1838/2011
Out of the matured amount, Rs.6,00,000/- for further period of 5 years.
Out of the matured amount, Rs.3,00,000/- for further period of 5 years.
The remaining compensation amount together with interest and cost is ordered to be released in favour of the petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 30th day of January, 2016.) (K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Aleem Ulla Khan PW2: Dr.S.Ramachandra PW3: Sunil Kumar.G.B. PW4: Lakshmidevi PW5: Mitesh PW6: Imran
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Jayanth Inamdar RW2: Samantha Carey (SCCH-15) 34 MVC.1838/2011 LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 - FIR with complaint Ex.P2 - Mahazar Ex.P3 Wound certificate Ex.P4 Discharge card of Victoria hospital Ex.P5 Discharge card of Dr. B R Ambedkar medical college and hospital Ex.P6 2 discharge summaries Ex.P7 Photo with CD Ex.P8 306 medical bills for Rs.84,092/-
Ex.P9 39 medical prescriptions Ex.P10 - Outpatient Card Ex.P11 - Case sheets 2 Ex.P12 - X-rays Ex.P13 - Case sheet Ex.P14 - Authorization letter Ex.P15 - Case sheet Ex.P16 - Certified copy of wound certificate.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
Ex.R1 : Authorization letter Ex.R2 : True copy of policy, Ex.R3 : True copy of "C" report.
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.