Bangalore District Court
Ms. Fathima Zohara @ Zora vs Eazy Shopee on 8 March, 2022
KABC020116712017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES, AT BENGALURU.
DATED THIS THE 8th DAY OF MARCH 2022
(SCCH25)
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M.
XXIII Additional Small Causes Judge,
Bengaluru.
MVC No.6356/2017
PETITIONER: Ms. Fathima Zohara @ Zora
D/o Mohammed Ilyaz @ Ilyas,
Aged about 20 years,
R/at #03 B, Lloyds Ville,
96, Lloyed Road,
Cookers Town,
Bangalore - 560 005.
(By Sri.K.C.Chowde Gowda,
Advocate.)
V/S
RESPONDENTS: 1. Eazy shopee
Mp/2/3, 6th Cross, Old
Guddadahalli Mysore road,
Bangalore - 560 026.
Also
No.928, Ground Floor,
7th Cross,
2 MVC 6356/2017
SCCH-25
1st Main, Kengerei Upanagara,
Bangalore - 560 060.
(RC owner of the Jeep bearing Temporary
Reg.No.KA03XQ003345)
(By Sri.K.N.Subba Reddy,
Advocate.)
2. The Manager
HDFC ERGO GEN. Insurance
Co. Ltd.,
Shankaranarayana
Building - 2,
2nd Floor, MG Road, Bangalore.
(Insurer of the Jeep bearing
Temporary Reg.No.KA03XQ
003345)
Policy No.2311 2018 7351
6300 000 valid from 0708
2017 to 06082018)
(By Sri. Madhu Kiran,
Advocate)
......
JUDGMENT
The Petitioner has filed this petition under Sec.166 of the M.V. Act., seeking compensation for the injuries sustained by her in a road accident dated 27.08.2017.
2. The case of the Petitioner in brief is that, 3 MVC 6356/2017 SCCH-25 On 27.08.2017 at about 06.00 pm while the Petitioner proceeding in the Jeep bearing Temporary Reg.No.KA03 XQ003345 along with her friends, the driver of the said Car was driving the same on levelley road Bangalore, at high speed, in a rash and negligent manner, endangering to human life and without following traffic rules and regulations and dashed against the road side tree, as a result the petitioner sustained grievous injuries on all over the body.
3. Further submitted that, immediately after the accident she was shifted to Mallya Hospital, admitted as an inpatient from 27.08.2017 to 14.09.2017 and as per MRI cervical spine and CT cervical spine shows fracture dislocation C6 over C7 with involvement of anterior and posterior elements with severe cord contusion. Anterior wedge compression of D3 D4 and D5 were also noted and right lung mid zone consolidation. The petitioner sustained severe injuries to spinal cord and kept in ICU and underwent combined anterior plus posterior approach 4 MVC 6356/2017 SCCH-25 deduction and stabilization of dislocated C6 C7 on 29.08.2017 and tracheostomy on 08.09.2017, as she suddenly developed respiratory difficulty on 31.08.2017 she was supported with ventilators. She lost sensation of wrist and fingers of both hands and lost sensation of both lower limbs and unable to move them and discharged with an advice to take regular follow up treatment. Since the petitioner is totally bed ridden and unable to move, she is managing at her residence by putting all medical supports at her home by appointing home care nurse. She require one medical attendant and hence paying Rs.25,000/ per month to the medical attendant and Rs.12,000/ per month for non medical attendant apart from food and shelter. She is also taking physiotherapy as advised by the doctors and requires Rs.1,50,000/ in every month for the treatment, physiotherapy and medicines. So far she has spent Rs.50,00,000/ towards medical expenses, food and nourishments, conveyances, attendant charges and other incidental charges. She is taking regular followup treatment as advised by the doctors till today. Prior to the 5 MVC 6356/2017 SCCH-25 accident the petitioner was hale and healthy, hard worker, working as Brand Endorser for various up coming small companies through social media like Daniel Wellington, Eogue, MNML, Burgurbeasts, Vitamin Berry and lost more and also doing part time modeling and earning sum of Rs.30,000/ p.m and used to contribute the same for the maintenance for her family. In the month of September 2017 she was planning to go Singapore for further studies to study Diploma in polytechnic and to do part time job. Due to accidental injuries, the petitioner suffered total permanent disability and lost her present and future earning capacity. The petitioner is an unmarried girl and lost her marriage prospects. Therefore the petitioner has lost her income and bright future prospects, her dreams of further studies are spoiled. The Cubbonpark Traffic police have registered the case against the driver of the offending Jeep in Cr.No.289/2017. The 1st respondent is the RC owner and the 2nd respondent is the insurer of the offending vehicle are jointly and severally liable to pay compensation to the petitioner.
6 MVC 6356/2017
SCCH-25
4. In response to notice issued by this Tribunal, the Respondents appeared through their respective counsel and filed separate written statements.
5. The respondent No.1 in the written statement have denied the averments made in Para 1 to 6, 8, 9, 14(a), 15, 16 and 22 as false. He is not aware about the averments made in paras 10 to 14, 17 to 20. Further submitted that the insurance policy was in force as on the date of accident and the respondent No.2 is liable for the alleged compensation. They insured the jeep bearing Reg.No:KA03XQ003345 with the second respondent and it covered valid policy from 07.08.2017 to 06.08.2018. At the relevant point of time Mr.Pusthak Nag A., was driving the vehicle in question and he was holding valid and effective DL.
6. The Respondent No.2 in the written statement denied the averments of the petition as false and submitted that they issued policy to jeep bearing Temporary 7 MVC 6356/2017 SCCH-25 Reg.No;KA03XQ003345 and said policy was in fore from 07.08.2017 to 06.08.2018 and their liability if any is subject to terms and conditions of the policy. Further submitted that there is no compliance of Section 134(c) and 158(6) of M.V. Act. The driver was driving the jeep without possessing a valid and effective DL as on the date of the alleged accident and by consuming alcohol, as a result drove the vehicle in a very high speed and hit road side tree and the accident occurred. As there is breach of condition and violation of law, this respondent is not liable to indemnify the respondent No.1. As per the police records also the driver of offending vehicle was under influence of alcohol at the time of accident. They deny involvement of jeep, age, occupation, injuries sustained and treatment taken and expenses alleged to have incurred. At the time of the accident, the petitioner was traveling in the said jeep near Lavelly Road and driver of said jeep drove in a rash and negligent manner endangering to human life and property by violating the traffic rules, driven in haphazard 8 MVC 6356/2017 SCCH-25 manner due to which he sustained injuries. Therefore, prayed for dismissal of the petition against them.
7. On the above rival contentions of the parties, this court has framed the following issues :
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent act of driver of Jeep bearing Temporary Reg.No.KA03XQ003345 and in the said accident petitioner has sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum? From whom?
3. What order or award?
8. The Petitioner in order to prove her case, she has examined her GPA holder and mother Smt.Syeda Banu as PW.1 and marked 26 documents as per Exs.P.1 to P.26. Dr.Shashikanth examined as PW.2 and produced 4 documents as per Exs.P.27 to P.30. Dr.S.A.Somashekara examined as PW.3 and produced 2 documents as per Exs.P.31 and P.32. On the other hand the Respondent 9 MVC 6356/2017 SCCH-25 No.2 examined Mr.Ramakrishna K - ASI Cubben Park Traffic P.S. as RW.1 and also examined Mr.Suresh - Manager Legal as RW.2 and produced 1 document as per Ex.R.1. It has also examined Mr.B.Srinivasaprasad - Asst. RTO, Bangalore East as RW.3 and produced 1 document as per Ex.R.2. The Respondent No.1 has not led any evidence either oral or documentary.
9. Heard the arguments of the learned counsel for both the parties and perused the materials on record. The counsel for the respondent No.1 has relied upon following decisions;
i) (2008) 7 SCC 305 Rajesh Kumar @ Raju Vs. Yudhvir Singh and another,
ii) (2011) 1 SCC 343 Raj Kumar Vs. Ajay Kumar & Anr.,
iii) MFA No.8716 of 2017 (MVI) Mr.Sukumar Achary Vs. Laxman Shetty & Anr.,
iv) CMA (MD) Nos.113 of 2014 The Branch Manager Vs. A.Athinarayanan,
v) Crl.MC.No:5562 of 2019 (E) Subhi Varghese Vs. State of Kerala,
vi) MACA.No.3041 of 2009 Joby Thomas Vs. Annamma Augustine, 10 MVC 6356/2017 SCCH-25 Vii) 2009 SCC online Kar 70 N.Obalaranga Vs. United India Insurance Company Ltd, Bangalore and another.
Viii) (2015) 1 SCC 539 Kumari Kiran Through her father Harinarayan Vs. Sajjan Singh and Others. The counsel for the petitioner has relied upon following decisions:
i) MFA No.689/2018 C/w 3183/2018, MFA 711/2018(MV) in the case of Legal Manager Reliance Gen. Ins. Co. Ltd. Vs. Benson George and Anr.,
ii) AIR 2018 SC 1347 in the case of Jagadeesh Vs. Mohan and Ors.,
iii) 2011 ACJ 1 in the case of Rajkumar Vs. Ajaykumar and Anr.,
iv) MFA No.3710/1999 in the case of BMTC Vs. Syed Jameel Pasha.
v) MACMA No.2332/2011 and batch in the case of Bajaj Alianz Gen. Vs. Smt. Manjula Devi of Hon'ble AP High Court.
10. On hearing both sides and perusal of the evidence on record this court answers the above issues as follows: Issue No.1: In the affirmative Issue No.2: Partly in the affirmative.
Issue No.3: As per the final order,
for the following:
11 MVC 6356/2017
SCCH-25
REASONS
11. Issue No.1:
The Petitioner in order to prove that the accident was occurred due to the actionable negligence on the part of the driver of the Jeep bearing Temporary Reg.No.KA03XQ 003345 has examined her GPA holder and mother as PW.1 and produced 5 documents as per Exs.P.2 to P.5 and P.9. She has specifically deposed in her evidence that, On 27.08.2017 at about 06.00 pm when her daughter was proceeding in the Jeep bearing Temporary Reg.No.KA03 XQ003345 along with her friends, the driver of the said Jeep was driving the same on Levelley road Bangalore at high speed, in a rash and negligent manner and endangering to human life without following traffic rules and regulation and dashed against the road side Tree and caused the accident. As a result her daughter sustained grievous injuries on all over the body. The Respondent No.2 denied the case of the petitioner as false. In the cross examination of PW.1 it is brought out that she did not see the accident spot, her son informed about the accident, 12 MVC 6356/2017 SCCH-25 firstly her daughter admitted to Malya hospital wherein the petitioner admitted for 18 days, to her knowledge five persons were traveling inside the Jeep, her daughter was sitting in back side middle seat.
12. The respondent No.2 in order to prove its defence has examined RW.1 who deposed that except the injured other three were in drunken state, on examination the driver of Jeep was found in drunken state which percentage was 199%, he has not taken blood sample for FSL examination, the Driver who consumed alcohol at 199% will not be in a condition to drive the vehicle.
13. The respondent No.2 has also examined RW.2 in support of its defence and further submitted that as per the evidence of IO the driver was under alcohol state at 199% and was not in a condition to drive the vehicle, the offending vehicle was not registered and unregistered vehicle was not permitted to ply on road and hence they are not liable to pay compensation as petitioner was also under 13 MVC 6356/2017 SCCH-25 the influence of alcohol along with other inmates of Jeep. In the crossexamination it is elicited that the petitioner is third party, the policy was issued to new vehicle to the chassis number and engine number, the seating capacity of the vehicle is 4 + 1, as per conditions their liability exists towards third party, in Exs.R.1 and 2 there is no mention that they are not liable as the vehicle was temporarily registered.
14. I have perused the above oral evidence of the parties and also perused the documentary evidence. As per the police documents the driver was in alcoholic state and driven the Jeep in rash and negligent manner which led to accident. Though the respondent No.2 contended that the petitioner was also in drunken state but there is no evidence to that effect. The evidence led by the respondent No.2 is not sufficient to disprove the case of the petitioner with regard to noninvolvement of Jeep and nonoccurrence of accident as alleged by the petitioner. In the cross 14 MVC 6356/2017 SCCH-25 examination of PW.1 nothing worth is elicited to disprove the case of the petitioner with regard to accident.
15. Further, the Petitioner apart from the oral evidence of PW.1 has also produced the documents such as FIR in Cr.No.289/2017 and complaint, spot sketch, Panchanama, IMV report and charge sheet as per Exs.P.2 to P.5 amd P.9 and they are public documents which have got presumptive value under law. The Ex.P.9 which is the copy of charge sheet filed in Cr.No.289/2017 clearly discloses that the investigation officer has filed charge sheet after detail investigation holding that the driver of the offending Jeep bearing Temporary Reg.No.KA03XQ003345 driven it in a rash and negligent manner and caused the accident. Under these circumstances, relying upon the oral evidence coupled with documents, this court is of the opinion that the accident occurred due to the rash or negligent driving of the driver of the Jeep bearing Temporary Reg.No.KA03XQ 03345 and same has resulted in grievous injuries to the 15 MVC 6356/2017 SCCH-25 Petitioner. Accordingly, issue No.1 held in the affirmative.
16. Issue No.2: The Petitioner's GPA holder/PW.1 has further averred that, on account of accident, petitioner has sustained grievous injuries and they have caused her permanent disability and hence she is unable to do her earlier work/occupation. The GPA holder and mother of the Petitioner in this regard has entered into witness box and deposed that due to the accidental injuries, her daughter is suffering from permanent disability. Apart from that, she has also produced the wound certificate as per Ex.P.6. As per Ex.P.6, the Petitioner has sustained simple and grievous injuries on all over the body. The GPA holder and mother of the Petitioner has also examined Dr.S.A.Somashekara as PW.3. PW.3 has deposed supporting the version of the Petitioner. This court while considering the Issue No.1 has already come to the conclusion that the accident occurred due to the rash or 16 MVC 6356/2017 SCCH-25 negligent driving of the driver of the Jeep. Therefore, the Petitioner is entitled for compensation from the Respondents.
Disability
17. The PW.1 has deposed in support of her case that the petitioner is suffering from permanent disability. In the crossexamination of PW.1 it is brought out that, her daughter admitted to Malya hospital for 16 days, at the time of discharge the petitioner advised to take physiotherapy, as she is not satisfied with the treatment given at Malya hospital and hence she took the petitioner to Singapoor and got treatment in three hospitals, she got GPA at Bengaluru and at that time the petitioner was in Bengaluru and petitioner came while notarizing the said GPA, the petitioner is in paralyzed conditions, the petitioner sits but not like normal person.
18. Further, in the chiefexamination the PW.3 has deposed that, he has examined the petitioner clinically 17 MVC 6356/2017 SCCH-25 and radiologically as to the assessment of disability. She is said to have met with RTA on 27.08.2017, was treated at Mallya Hospital, Physiotherapy was taken at Singapore General Hospitals. PW.3 further deposed that the petitioner was diagnosed to have CERVICAL SPINE FRACTURE DISLOCATION C6C7 LEVEL WITH CORD CONTUSION. ANTERIOR WEDGE COMPRESSION FRACTURE OF D3,D4 AND D5 (LUMBER SPINE) and underwent surgery in the form of COMBMINED ANTERIOR + POSTERIOR APPROACH REDUCTION AND STABILIZATION OF DISLOCATED C6 C7 ON 29.08.2017, TRACHEOSTOMY ON 08.09.2017. PW.3 further deposed that he has gone through the wound certificate and discharge summary for assessment of disabilities and the petitioner complains inability to stand and walk, inability to flex her hips and disturbed bowel and bladder habits. On examination PW.3 found disability that she is mobilized in a wheel chair with difficulty as she cannot be propped up due to ankylosed hips. Surgical scars are seen over anterior and posterio aspect of neck. Upper limbs: Sensory - Hypoaesthesia + shoulder and elbow 4 + 18 MVC 6356/2017 SCCH-25 wrist and hand 3 + DTR - exacerated. Lower limbs:
Hypoaesthesia + motor - 0/5. Babinski is postitive, DTR - exacerated. Her recent Xray shows C6 C7 stabilized both anteriorly and posteriorly. Bilateral ankylosis of hips. Her disabilities are upper limbs: sever loss of function with grade III. Power at wrist and hand joints. Lower limbs: 0/5 power. Ankylised hips: Bowel evaluation either manually / by enema. Bladder evaluation by intermittent catheterisation. She is a case of Tetraplegia, Bowel and Bladder disturbed with Ankylosed hips - 90%. PW.3 further deposed that, the total disability of the petitioner whole body at 90% and it is permanent and further stated that the patient is said to be a student carrying out part time job and with the said disabilities she needs attendants 24 x 7 even for her daily pursuits. He has produced 2 documents as per Exs.P.31 and P.32 out patient card with examination report and one recent Xray film. In the cross examination of PW.3 it is brought out that he has not treated the petitioner, on 25.6.2018 the petitioner came to him for assessment of disability, there will be no change in 19 MVC 6356/2017 SCCH-25 disability in future, no active rehabilitation treatment is continued, he has no knowledge about condition of the petitioner as of now, the petitioner reached stationary condition, there is no even little change of disability in near future to the petitioner. Further elicited that he is an orthopedic surgeon, he has not produced any documents to show that the fractures are grievous in nature, the neurological examination is needed to assess motor sensory system, hypothesia occurs due to nerve damage, treatment is completed and only for nursing care the petitioner was discharged, in Ex.P.7 the word nursing care is not mentioned, he has seen discharge summary of the petitioner.
19. In the discharge summary/Ex.P.7 under the head history and course in the hospital and condition of the patient during discharge, in summary in the last line it is mentioned as, '........After tracheostomy patient weaned off the ventilator gradually and was maintaining saturation with poor air. Patient showed minimal improvement in 20 MVC 6356/2017 SCCH-25 movements of bilateral wrist and fingers. No improvement was seen in lower limb powers. The operative wounds healed well and sutures were removed. Patient was afebrile and BP was stable. Attenders decided to take her home for further management with home care including care of tracheostomy. All pros and cons were explained but attenders insisted on discharge. Hence patient was discharged against medical advice.' From this it is clear that the petitioner was in need of treatment but even then for further management the petitioner got discharged from the hospital against medical advise.
20. The Ex.P.11 medical certificate issued by Mallya hospital clearly states that the petitioner sustained a cervical spine injury in August 2017 and has undergone surgery for the same, the petitioner has undergone C6C7 stabilization both anteriorly and posteriorly with Titanium implants. The photos produced at Ex.P.14 also support the same. Though in the crossexamination the respondent No.1 tried to elicit that the problems alleged to have faced 21 MVC 6356/2017 SCCH-25 by the petitioner are not consequences of accidental injury but nothing worthy evidence lead by the respondent to prove the same. Though the PW.2 deposed that the neurological examination is needed to assess motor sensory system, treatment is completed and only for nursing care the petitioner was discharged but no evidence lead by the respondent No.1 to prove that the petitioner's condition got improved. The counsel for the respondent No.1 contends that as the petitioner executed Ex.P.1 GPA and hence the petitioner's condition got improved. As per the cross examination of PW.1 the petitioner came twice to India after her discharge and at that time the Ex.P.1 was got executed. Therefore, execution of Ex.P.1 and considering that petitioner came to India twice it can be said that petitioner's condition is improved as rightly pointed out by the counsel for the first respondent. Further, as per the evidence of PWs.1 and 3 it is clear that the petitioner is in paralysed condition. It is clear that PW.3 examined the petitioner on 25.6.2018 and as per the evidence the petitioner is taking physiotherapy and bills are produced to that effect but said 22 MVC 6356/2017 SCCH-25 bills are of till June 2018 and no further medical documents are produced to show that the petitioner still continued any further treatment or management and no evidence lead to show that what is her present condition. Further, I have perused the decisions referred by the parties and the decisions relied upon by the counsel for the respondent No.1 at sl.Nos.1 to 3 referred above are not applicable to the present case as the facts and circumstances of the case are different and the decision at Sl.No.7 and 8 referred above are with regard to assessment of disability towards of loss of earning and the head under which compensation needs to be awarded which are applicable to the facts and circumstances of this case partly. Therefore, considering the nature of injury and evidence lead, age of the petitioner and in absence of any medical documents after June 2018, the 90% of whole body disability deposed by the PW.3 is appears to be on higher side. The petitioner came to India and from the evidence it is clear that she did not use any specialized vehicle for her 23 MVC 6356/2017 SCCH-25 traveling in Bangalore and hence considering the evidence the whole body functional disability is considered at 50%.
Monthly income.
The Petitioner/PW.1 has deposed in her evidence that, she was working as Brand Endorser for various up coming small companies through social media like Deniel Wellington, Eogue, MNML, Burgurbeasts, Vitamin Berry and lots more and also doing part time modeling and earning a sum of rs.30,000/ per month. To substantiate this contention, she has not produced any documents nor examined any witness to prove the same. The PW.1 has produced the Exs.P.18 to P.26 notarized copy of certificate issued by the internation General certificate of Secondary education, notarized copy of cambridge ESOL examination entry level certificate, notarized copy of certificate of achievement, notarized copy of certificate of appreciation, notarized copy of transfer certificate, notarized copy of school leaving certificate, notarized copy of Migration certificate, notarized copy of another transfer certificate. 24 MVC 6356/2017
SCCH-25 From these it can be said that the petitioner studied and got eligible for further studies but the petitioner has not produced any documents to prove that she intended to continue her studies in Singapore and was doing job as claimed and earning. Therefore, the claim of the petitioner that she was earning Rs.30,000/ cannot be accepted. The accident occurred in the year 2017. Hence, the notional income has to be considered. Therefore, having regard to the age of the petitioner, and also relying the decision of Hon'ble H.C. in the case of Sumangala & Others and Ramanagouda & Anr., in MFA No:202534/2019(MVC) the notified notional income chart of the Karnataka State Legal Services Authority is considered for fixing the notional income and accordingly the monthly notional income of the petitioner is considered as Rs.11,000/ per month. At the time of accident the Petitioner was aged about 21 years as could be make out from Ex.P.22/notarized copy of TC. She was hale and healthy before accident. As such, Petitioner is entitled for the following compensation: 25 MVC 6356/2017 SCCH-25
i) PAIN AND SUFFERING: As per the wound certificate - Ex.P.6 the Petitioner has sustained (i) Lacerated wound present over the scalp, vertebra region, (ii) Cervical spine fracture C6 C7 dislocation and cord contusion. (iii) anterior wedge compression fracture of D3, D4 and D5 ( Dorso - Lumber spine). Out of these injuries, injury No.1 is simple and injury Nos.2 and 3 are grievous in nature. After the accident, the Petitioner was shifted to Mallya hospital, wherein she was admitted as an inpatient from 27.08.2017 to 14.09.2017. MRI Cervical spine and CT cervical spine showed fracture dislocation C6 over C7 with involvement of anterior and posterior elements with severe cord contusion. Anterior wedge compression of D4 D4 and D5 were also noted and right lung mid zone consolidation. Since she sustained very severe injuries to the spinal chord, she was kept in ICU. She underwent combined anterior = posterior approach reduction and stabilization of dislocated C6 C7 on 29.08.2017 and tracheostomy on 08.09.2017. She was discharged for further management. On 09.01.2018 she 26 MVC 6356/2017 SCCH-25 went to Singapore to take further and better treatment in Singapore General Hospital, CADEMOTO sports and Joint Ctr. She is continuing treatment there as per the advice of the doctors. On 18.06.2018 she came to Bangalore due to bad weather and return to Singapore on 04.7.2018 to continue further treatment. Now she is taking treatment in the above said hospital as per advice of the doctors. Considering the nature of injuries and duration of treatment he has underwent, the Petitioner is awarded a sum of Rs.1,00,000/ under this head.
ii) MEDICAL EXPENSES:
The Petitioner/GPA holder and mother has averred and deposed that she has spent more than Rs.75,00,000/ towards medical expenses, food and nourishment, conveyances, attendant charges and other incidental charges so far. In this regard, she has produced medical bills as per Ex.P.16 for a sum of Rs.9,48,480/ and as per Ex.P.17 for a sum of Rs.5,12,555/. In the cross examination of the PW.1 the respondent No.1's counsel put 27 MVC 6356/2017 SCCH-25 lot of suggestions stating that after their objections they got seal and signature to the Ex.P.17 bills but nothing worth is elicited to disprove these documents. The Ex.P.17 bills are in Singpore currency rates and it is converted in Indian currency and calculation of total amount is put. Therefore, considering the evidence of the PW.1 and perusal of bills this Tribunal is of the view that the petitioner is entitled for said amount in total sum of Rs.14,61,035/ under the head of Medical Expenses.
iii) LOSS OF INCOME DURING LAID UP PERIOD: As discussed above the petitioner has sustained simple and grievous injuries and underwent treatment in the hospital. Therefore, considering the nature of injuries and the duration of treatment it can be said that the Petitioner required at least three months time for recovering from the injuries sustained by her. Therefore she is entitled for Rs.33,000/ under this head. 28 MVC 6356/2017
SCCH-25
iv) LOSS OF FUTURE INCOME: As discussed above as per Ex.P.22/notarized copy of TC the petitioner was aged 21 years as on the date of accident and hence same is considered as the age of the petitioner as on the date of accident. As per Sarala Verma's case the appropriate multiplier applicable to her age is 18. As such, in total the Petitioner is entitled a sum of Rs.11,88,000/ (Rs.11,000/x 12 x 18 x 50%= Rs.11,88,000/) under this head.
(v) LOSS OF FUTURE AMENITIES AND HAPPINESS: The Petitioner was aged about 21 years at the time of accident. She has sustained simple and grievous injuries as discussed above and as per the evidence of PW.3 and consideration of this Tribunal, she is suffering from 90% permanent disability. The Petitioner has to suffer this disability throughout her life. Because of this she will have to lose many amenities, comforts and marital status also. Therefore, considering the age and nature of injuries that 29 MVC 6356/2017 SCCH-25 the Petitioner has suffered a sum of Rs.17,000/ is awarded under this head.
(vi) ATTENDANT, CONVEYANCE, FOOD AND NOURISHMENT CHARGES:
After the accident, the Petitioner was treated in the hospital and continued further management as mentioned above. Though the PW.1 deposed that she spent Rs.25,000/ per month for medical attendant and Rs.12,000/ per month for nonmedical attendant apart from food and shelter. But no any evidence lead in this regard. But even then during the period of admission in the hospital, she must have spent considerable amount on conveyance, attendant charges, food and nourishment etc.. Therefore the Petitioner is entitled for a sum of Rs.17,000/ under this head.
vii) MARRIAGE PROSPECTS: As per the Ex.P.22 the petitioner was aged 21 years and the evidence on record shows she was unmarried at the 30 MVC 6356/2017 SCCH-25 time of accident. The injuries sustained by the petitioner is grievous in nature which affected her life and hence the petitioner is entitled to get compensation of Rs.1,00,000/ under this head.
viii) FUTURE MEDICAL EXPENSES:
No evidence is lead in this regard to prove that the petitioner required further treatment and further surgeries and hence the petitioner is not entitled to any compensation under this head.
ix) FUTURE PROSPECTS: The petitioner took physiotherapy and bills are produced to that effect. As per PW.3 he examined the petitioner on 25.6.2018 and nearly fours years lapsed and petitioner taken physiotherapy and there is no medical evidence about her present condition and there is no evidence lead as to said disability improved or not, she required further treatment or nor and whether she can do work by sitting or not and hence the petitioner is not 31 MVC 6356/2017 SCCH-25 entitled to compensation under this head. Therefore, the decisions relied upon by the counsel for the petitioner at sl.Nos.1 to 4 referred above are not applicable as the facts and circumstances of this case are different.
21. The Petitioner is entitled for compensation under the following heads:
1. Pain & suffering Rs.1,00,000/
2. Medical expenses Rs.14,61,035/
3. Loss of income during laid up period Rs.33,000/
4. Loss of future income Rs.11,88,000/
5. Loss of future amenities and happiness Rs.17,000/
6. Attendant, conveyance, food and Rs.17,000/ nourishment charges
7. Marriage Prospects Rs.1,00,000/ TOTAL Rs.29,16,035/ If the said total amount is rounded off then it comes to Rs.29,16,100/ and the same is awarded to the petitioner under different heads. Therefore, the petitioner is entitled for total compensation of Rs.29,16,100/.
LIABILITY:-
22. The Respondent No.2 contended that the offending vehicle did not registered and has only 32 MVC 6356/2017 SCCH-25 temporary registration and the driver of the offending vehicle drove the offending vehicle in drunken state and caused the accident and hence there was complete negligence on the part of the driver and as the vehicle used without registration the same is in contravention of policy terms and conditions and hence they are not liable to pay the compensation to the petitioner. In support of the defence the respondent No.2 lead evidence of RW.1 I.O., who deposed that the victim/injured not under alcoholic condition, as per statement of Adith the inmates were not in drunken state, on examination of driver his alcoholic percentage was 199%, except the driver they did not examine the inmates about their alcoholic state, he did not produce the said alcoholic test report before this court, they did not sent the blood sample for FSL examination, he does not know the contents of Ex.P.27 wherein it is mentioned that the victim was under influence of alcohol.
23. Further the respondent No.2 got examined its official as RW.2 who deposed in support of their defence 33 MVC 6356/2017 SCCH-25 that as per the police documents the driver Pusthak Nag was consumed alcohol and driven the vehicle in a rash or negligent manner and hit the road side tree which is also evident from the evidence of RW.1 and at the time of the accident offending vehicle is not registered as on the date of accident and unregistered vehicle not permitted to ply on roads and hence they are not liable to pay compensation to the petitioner as the accident occurred due to selfnegligence of the petitioner as at the time of accident all the inmates of the vehicle including petitioner were under influence of alcohol. In the crossexamination it is elicited that on the police documents they are contending that the driver was under influence of alcohol, the petitioner is third party, in Ex.R.2 there is no mention that their liability ceases if the vehicle having temporary registration, the third party coverage is available under the policy which was valid.
24. The respondent No.2 though contends that there is violation of policy conditions but it has not proved 34 MVC 6356/2017 SCCH-25 as to how there is breach of policy conditions in case of third party. Further temporary registration of a vehicle does not amount to a breach of conditions of the third party insurance policy and therefore, the insurer cannot seek to avoid liability to indemnify the owner in respect of claims arising out of accident caused by the vehicle having temporary registration. The counsel for the respondent No.1 relied upon decision referred above at sl.Nos.4 and 6, with regard to temporary R.C. and liability of insurer and the same are aptly applicable to the facts and circumstances of this case and decision at sl.No.5 with regard to driver driving the vehicle under alcoholic influence and liability of insurer is also aptly applicable to the facts of this case. The decision relied upon by the counsel for the petitioner at Sl.No.7 with regard to drunk and drive and liability of insurer is also aptly applicable.
Therefore, the defence of the respondent No.2 is not acceptable for exonerating its liability under policy. Therefore, as the petitioner and respondent No.2 proved existence of valid policy and liability of the respondent 35 MVC 6356/2017 SCCH-25 No.2 and as the respondent No.2 failed to prove its defence, hence the respondent No.2 cannot escape from its liability. Therefore, the respondents 1 and 2 being the insured and insurer are jointly and severally liable to pay the compensation to the petitioner. However, as the existence of policy is proved, hence the respondent No.2 is to indemnify the respondent No.1 insured and to pay the compensation to the petitioner. The Petitioner has claimed for a sum of Rs.2,00,00,000/ but she is entitled only for a sum of Rs.29,16,100/ with interest @ 6% p.a.. Therefore, the petition needs to be allowed in part. Accordingly Issue No.2 is held partly in the affirmative.
25. Issue No.3: For the reasons and discussions made above and findings to the above issues this Tribunal proceeds to pass the following: ORDER The petition is allowed in part.
36 MVC 6356/2017
SCCH-25
The Petitioner is entitled for
compensation of Rs.29,16,100/ (Rupees
Twenty Nine Lakhs Sixteen Thousand and one Hundred Only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount. The Respondents 1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.2Insurer shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, 20% is to be deposited in any Nationalized Bank or State Bank for a period of three years in the name of petitioner and remaining amount shall be 37 MVC 6356/2017 SCCH-25 released in favour of the Petitioner by way of epayment and on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Draw decree accordingly.
(Typed to my dictation directly on the computer by the Stenographer, corrected and then pronounced by me in open court on this the 8th day of March 2022).
(Miss.B.T.ANNAPOORNESHWARI) XXI A.C.M.M.& XXIII A.S.C.J., Bengaluru.
ANNEXURE List of Witnesses examined for Petitioner:
PW.1 Smt. Syeda Banu PW.2 Dr. Shashikanth PW.3 Dr.S.A.Somashekara
List of Documents marked for Petitioner:
Ex.P.1 GPA dated 25.06.2018
Ex.P.2 FIR in Cr.289/2017 and complaint
Ex.P.3 Spot Sketch
Ex.P.4 Mahazar
Ex.P.5 IMV report
38 MVC 6356/2017
SCCH-25
Ex.P.6 Wound Certificate
Ex.P.7 Discharge summary
Ex.P.8 Operation notes
Ex.P.9 Charge sheet
Ex.P.10 Yashaswini Ambulance Services receipt
Ex.P.11 Medical certificate of Malya Hospital
Exs.P.12
to P.14 3 photos
Ex.P.15 CD
Ex.P.16 67 medical bills
Ex.P.17 78 medical bills
Ex.P.18 Notarized copy of certificate issued by the
Internation General Certificate of Secondary education (2 in Nos.) Ex.P.19 Notarized copy of Cambridge ESOL examination entry level certificate Ex.P.20 Notarized copy of certificate of Achievement Ex.P.21 Notarized copy of Certificate of appreciation Ex.P.22 Notarized copy of transfer certificate Ex.P.23 Notarized copy of school leaving certificate Ex.P.24 Notarized copy of statement of results (3 in Nos.) Ex.P.25 Notarized copy of Migration certificate Ex.P.26 Notarized copy of another transfer certificate Ex.P.27 Case sheet Ex.P.28 Police intimation Ex.P.29 MLC extract Ex.P.30 12 Xrays + 1 CT film 39 MVC 6356/2017 SCCH-25 Ex.P.31 Out patient card with examination report Ex.P.32 Xray List of Witnesses examined for Respondent/s:
RW.1 Mr.Ramakrishna K RW.2 Mr.Suresh RW.3 Mr.B.Srinivasaprasad
List of documents exhibited for Respondent:
Ex.R.1 True copy of policy with terms and conditions (4 pages) Ex.R. 2 True copy of temporary registration certificate (Miss.B.T.ANNAPOORNESHWARI) XXI A. C.M.M.,& XXIII ASCJ Bengaluru.40 MVC 6356/2017
SCCH-25 08.03.2022 For Judgment Pronounced vide separate judgment with following operative portion:
ORDER The petition is allowed in part.
The Petitioner is entitled for
compensation of Rs.29,16,100/ (Rupees
Twenty Nine Lakhs Sixteen Thousand and one Hundred Only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount. The Respondents 1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.2Insurer shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, 20% is to be deposited in any Nationalized Bank or State Bank for a period of three years in the name of 41 MVC 6356/2017 SCCH-25 petitioner and remaining amount shall be released in favour of the Petitioner by way of epayment and on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/. Draw decree accordingly.
(Miss.B.T.ANNAPOORNESHWARI) XXI A.C.M.M. & XXIII A.S.C.J. Bangalore.42 MVC 6356/2017
SCCH-25 AWARD BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA & XXI ACMM : BANGALORE CITY MVC No.6356/2017 PETITIONER: Ms. Fathima Zohara @ Zora D/o Mohammed Ilyaz @ Ilyas, Aged about 20 years, R/at #03 B, Lloyds Ville, 96, Lloyed Road, Cookers Town, Bangalore - 560 005.
(By Sri.K.C.Chowde Gowda, Advocate.) V/S RESPONDENTS: 1. Eazy shopee Mp/2/3, 6th Cross, Old Guddadahalli Mysore road, Bangalore - 560 026.
Also No.928, Ground Floor, 7th Cross, 1st Main, Kengerei Upanagara, Bangalore - 560 060.
(RC owner of the Jeep bearing Temporary Reg.No.KA03XQ 003345) (By Sri.K.N.Subba Reddy, Advocate.)
2. The Manager HDFC ERGO GEN. Insurance Co.
Ltd., Shankaranarayana Building - 2, 43 MVC 6356/2017 SCCH-25 2nd Floor, MG Road, Bangalore.
(Insurer of the Jeep bearing Temporary Reg.No.KA03XQ 003345) Policy No.2311 2018 7351 6300 000 valid from 07082017 to 06 082018) (By Sri. Madhu Kiran, Advocate) WHEREAS, this petition filed on by the Petitioner/s above named U/sec.110A/166 of the M.V.C. Act, praying for the compensation of Rs. (Rupees Only) for the injuries sustained by the Petitioner/Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Miss.B.T.Annapoorneshwari, XXIII Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for Petitioner/s and of Sri/Smt. Advocate for Respondent.
ORDER The petition is allowed in part.
44 MVC 6356/2017
SCCH-25 The Petitioner is entitled for compensation of Rs.29,16,100/ (Rupees Twenty Nine Lakhs Sixteen Thousand and one Hundred Only) along with interest at 6% p.a. from the date of petition till the date of depositing the amount. The Respondents 1 and 2 are jointly and severally liable to pay compensation to the Petitioner.
However, the Respondent No.2Insurer shall deposit the compensation amount with interest before this Tribunal within sixty days from the date of this award.
On deposit of compensation and interest, 20% is to be deposited in any Nationalized Bank or State Bank for a period of three years in the name of petitioner and remaining amount shall be released in favour of the Petitioner by way of epayment and on proper identification and due acknowledgment as per rules.
Advocate fee is fixed at Rs.1,000/.
Given under my hand and seal of the Court this day of 2022.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA BANGALORE 45 MVC 6356/2017 SCCH-25 By the __________________________________ Petitioner/s Respondent Court fee paid on petition 1000 Court fee paid on Powers 0000 Court fee paid on I.A. Process Pleaders Fee _________________________________ Total Rs. _________________________________ Decree Drafted Scrutinised by MEMBER, M.A.C.T.METROPOLITAN:
BANGALORE Decree Clerk SHERISTEDAR BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL COURT OF SMALL CAUSES, AT BENGALURU (SCCH25) DATED THIS THE 8TH DAY OF AUGUST 2018 MVC No.6356/2017 PETITIONER/S: Ms. Fathima Zohara @ Zora V/s RESPONDENT/S: Mr.Eazy Shopee & Others ISSUES
1. Whether the Petitioner proves that, the accident occurred due to rash and negligent act of driver of Jeep bearing Temporary Reg.No.KA03XQ003345 and in the said accident petitioner has sustained injuries?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum?
From whom payable?
3. What order or award?
(M.C.NANJEGOWDA) XXI A. C.M.M.,& XXIII ASCJ Bengaluru.