Bangalore District Court
In Mvc Sri Bharath C.V vs In 1. Sri Somashekar S on 7 September, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 07th day of September 2015
M.V.C. Nos.2094/2014 to 2096/2014
Petitioner in MVC Sri Bharath C.V.,
2094/2014 S/o Venkateshaiah,
Aged 21 years,
Residing at No.200,
1st Main road, 6th Cross,
Amba Bhavani Road,
Kamakshipalya,
Bangalore - 560 079.
(Sri B.H. Chikkanna, Advocate)
Petitioner in MVC Sri K.N. Kumar,
2095/2014 S/o Narayanaswamy,
Aged 19 years,
Residing at No.8,
C/o Eranna, Near service
station, Doddagollarahatti,
Magadi Main Road,
Bangalore - 560 091.
And also at
Kuravanka Village,
Channarayanapattna Taluk,
Hassan District.
(Sri B.H. Chikkanna, Advocate)
Petitioner in MVC Sri Purushotham V.,
2096/2014 S/o Venkatesh,
Aged 19 years,
2 (SCCH-8) M.V.C.2094/2014 to
2096/2014
Residing at No.8,
C/o Eranna, Near service
station, Doddagollarahatti,
Magadi Main Road,
Bangalore - 560 091.
And also at
Yadavanahlli Village,
Bikkasale Post, Koppa Hobli,
Mandya Taluk, Mandya District.
(Sri B.H. Chikkanna, Advocate)
V/s.
Respondents in 1. Sri Somashekar S.,
all the cases S/o Shivanna Gowda,
Major in age,
Resident at No.126, 3rd Stage,
3rd Block, Basaveshwara
Nagar, Bangalore - 560 079.
(RC Owner of HGV lorry
bearing Reg. No.KA-41-A-
8748)
(Exparte)
2. The Regional Manager,
Reliance General Insurance
Co. Ltd., No.5/111 & 6/112,
1st Floor, Unnati Arcade,
1st Block, Dr. Rajkumar Road,
Rajajinagar,
Bangalore - 560 010.
(Insurer of HGV lorry bearing
Reg. No.KA-41-A-8748)
I/P No.140153233400852.
Valid from 28-09-2013 to
27-09-2014.
(Sri H.C. Betsur, Advocate)
3 (SCCH-8) M.V.C.2094/2014 to
2096/2014
COMMON JUDGMENT
These claim petitions filed by the petitioners are
being the cleaner and loader, unloader against the
respondents under Section 166 of Motor Vehicles Act,
1989, for seeking compensation of Rs.10,00,000/- each
for the injuries sustained by them in a road traffic
accident.
2. The brief facts of the claim petitions in MVC
Nos.2094/2014 to 2096/2014 are as under:
The petitioners in MVC Nos.2094/2014 to
2096/2014 are being said to be the cleaner, loader and
unloader in their claim petition were alleged that on 26-
02-2014 at about 4.15 p.m., they being the cleaner,
loader and unloader were proceeding in a HGV lorry
bearing No.KA-41-A-8748 on Bangalore Magadi main
road, when they were reached near Karekallupalya
Cross, the driver of the said lorry has drove the same
with high speed in a rash and negligent manner, without
observing the traffic rules and regulations and lost the
4 (SCCH-8) M.V.C.2094/2014 to
2096/2014
control dashed against the road side tree. Due to the
terrific impact, they were sustained grievous injuries. So,
immediately they were shifted to Sri Lakshmi Hospital,
wherein they took the treatment as an inpatient by
spending huge amount.
3. Prior to the accident they were hale and healthy
working as a cleaner, loader and unloader by getting
monthly income of Rs.8,000/- and Rs.10,000/- each
respectively, due to the accidental injuries, they could
not do the work as before. The accident in question was
taken place on the rash and negligent driving of the lorry
driver. Thereby, Thavarekere Police have registered the
case against the lorry driver in their police station crime
No.129/2014 for the offences punishable u/s 279 and
337 of IPC. The respondent No.1 being the owner and
respondent No.2 being the insurer of the offending
vehicle are jointly and severally liable to pay the
compensation and prays for allow the claim petitions.
4. In response of the notice, the respondent No.1 did
not appear nor file his written statement, as he was
5 (SCCH-8) M.V.C.2094/2014 to
2096/2014
placed exparte. The respondent No.2 being the insurer
has appeared through his counsel and filed the written
statement in which he has alleged that the claim
petitions filed by the petitioners are not maintainable in
law or on facts, but he has admitted about the issuance
of the policy in respect of the offending vehicle in favour
of the first respondent and the policy was valid from 28-
09-2013 to 27-09-2014 and his liability subject to terms
and conditions of the policy and he has alleged that there
is a 7 days delay in lodging the complaint, as the
petitioners in colluding with the police and the owner of
the vehicle were falsely implicated the vehicle and filed
the false case in order to get the compensation and he
has alleged that he has no knowledge about the
averments made in column No.1 to 15 and 17 to 22 of
the claim petition and the petitioners have to strict proof
of the same and he has alleged that either the owner of
the vehicle nor the jurisdictional police have not complied
the mandatory provisions of Section 134(C) and 158(6) of
MV Act in furnishing better particulars and as on the
6 (SCCH-8) M.V.C.2094/2014 to
2096/2014
date of the alleged accident, the offending vehicle driver
was not holding valid and effective driving licence to drive
the same and the first respondent being the owner has
entrusted the vehicle to the person who was not holding
valid and effective driving licence. So, the first respondent
has contravened the policy conditions. So, he is not liable
to pay any compensation to the petitioners and the
vehicle involved in the accident is the goods vehicle, no
loader/unloader and cleaner or any other persons
permitted to travel from one place to another place in the
goods vehicle as per Motor Vehicles Rules and
regulations. So, the owner of the vehicle has violated the
terms and conditions of the policy and the claim petitions
filed by the petitioners are deserves for dismissal and the
vehicle was not having either permit nor fitness
certificate and the vehicle was carrying the unauthorised
passengers in the lorry. So, the first respondent has
contravened the policy conditions and he has denied the
age, avocation and income of the petitioners and further
he has denied that the petitioners being said to be
7 (SCCH-8) M.V.C.2094/2014 to
2096/2014
cleaner and loader, unloader were proceeding in a lorry
and the driver of the said vehicle has drove the same with
high speed in a rash and negligent manner, without
observing the traffic rules and regulations dashed against
the road side tree, due to the said impact, the petitioners
were sustained grievous injuries and took the treatment
as an inpatient by spending huge amount and further he
has alleged that the petitioners who are the unauthorised
passengers were travelling in the alleged lorry. So, they
are not entitled any compensation and prays for reject
the claim petitions.
5. On the basis of the pleadings of the parties, the
following issues are framed in all the claim petitions:
MVC No. 2094/2014
1. Whether the petitioner proves that he
has sustained grievous injuries as
mentioned in wound certificate, in a road
traffic accident on 26-02-2014 at about
4.15 p.m., Karekallupalya Cross,
Tavarekere Hobli, Bangalore South Taluk,
Bangalore, due to the rash and negligent
8 (SCCH-8) M.V.C.2094/2014 to
2096/2014
driving of the driver of the lorry bearing
registration No.KA-41-A-8748?
2. Whether the petitioner is entitled for
any compensation? If so to what extent
and from whom?
3. What Order or Award?
MVC No. 2095/2014
1. Whether the petitioner proves that he
has sustained grievous injuries as
mentioned in wound certificate, in a road
traffic accident on 26-02-2014 at about
4.15 p.m., Karekallupalya Cross,
Tavarekere Hobli, Bangalore South Taluk,
Bangalore, due to the rash and negligent
driving of the driver of the lorry bearing
registration No.KA-41-A-8748?
2. Whether the petitioner is entitled for
any compensation? If so to what extent
and from whom?
3. What Order or Award?
MVC No. 2096/2014
1. Whether the petitioner proves that he
has sustained grievous injuries as
9 (SCCH-8) M.V.C.2094/2014 to
2096/2014
mentioned in wound certificate, in a road
traffic accident on 26-02-2014 at about
4.15 p.m., Karekallupalya Cross,
Tavarekere Hobli, Bangalore South Taluk,
Bangalore, due to the rash and negligent
driving of the driver of the lorry bearing
registration No.KA-41-A-8748?
2. Whether the petitioner is entitled for
any compensation? If so to what extent
and from whom?
3. What Order or Award?
6. The learned counsel for the petitioners has filed
memo on 26-03-2015 and prays for club the MVC
Nos.2095/2014 and 2096/2014 with MVC 2094/2014.
Accordingly the said memo was came to be accepted.
MVC Nos.2095/2014 and 2096/2014 are clubbed in
MVC 2094/2014, as these claim petitions are arising out
of the same accident, for recording of common evidence
and for disposal.
7. The petitioners in order to prove their claim
petitions, the petitioner in MVC No.2094/2014 has
examined himself as PW1 and got marked the documents
10 (SCCH-8) M.V.C.2094/2014 to
2096/2014
as Ex.P1 to Ex.P8 and Ex.P13. The petitioner in MVC
No.2095/2014 has examined himself as PW2 and got
marked the documents as Ex.P9, Ex.P10, Ex.P14 and
Ex.P15. The petitioner in MVC No.2096/2014 has
examined himself as PW3 and got marked the documents
as Ex.P11, Ex.P12, Ex.P16 and Ex.P17. The petitioners
have examined one witness on their behalf as PW4 and
got marked the documents as Ex.P18 to Ex.P23. The
respondent No.2 in order to prove his defence has
examined Deputy Manager as RW1 and got marked the
document as Ex.R1.
8. Heard arguments on both side.
9. My findings to the above issues are as
under:
Case No. Issue No.1 Issue No.2 Issue No.3
MVC
2094/2014
MVC In the Partly in the As per the
2095/2014 affirmative affirmative final order
MVC
2096/2014
11 (SCCH-8) M.V.C.2094/2014 to
2096/2014
REASONS
10. Issue No.1 in all the claim petitions.
The petitioners being said to be the cleaner, loader
and unloader were approached the court on the ground
that on 26-02-2014 at about 4.15 p.m., they were
proceeding in a HGV lorry bearing No.KA-41-A-8748 on
Bangalore Magadi main road, when they were reached
near Karekallupalya Cross, the driver of the said lorry
has drove the same with high speed in a rash and
negligent manner, without observing the traffic rules and
regulations and lost the control dashed against the road
side tree. Due to the terrific impact, they were sustained
grievous injuries and took the treatment as an inpatient
by spending huge amount. Thereby, the petitioners have
filed the instant claim petitions against the respondents.
11. The petitioner in MVC 2094/2014 in order to
prove his claim petition has filed his affidavit as his chief
examination as PW1 in which has stated that on 26-02-
12 (SCCH-8) M.V.C.2094/2014 to
2096/2014
2014 at about 4.15 p.m., himself and others were
proceeding in a HGV lorry bearing No.KA-41-A-8748 as a
cleaner, loader and unloader on Bangalore Magadi main
road, when the said lorry reached near Karekallupalya
Cross, the driver of the said lorry has drove the same
with high speed in a rash and negligent manner, without
observing the traffic rules and regulations and lost the
control dashed against the road side tree. Due to the
terrific impact, himself and others who are the loader and
unloader were sustained grievous injuries. So,
immediately they were shifted to Sri Lakshmi Hospital,
wherein they took the treatment as an inpatient by
spending huge amount. The accident in question was
taken place on account of rash and negligent driving of
the lorry driver. Thereby, Thavarekere Police have
registered the case against the lorry driver in their police
station crime No.129/2014 for the offences punishable
u/s 279 and 337 of IPC. The PW1 in his cross
examination has admitted that the lorry which belongs to
Somashekar who is the owner of the offending vehicle as
13 (SCCH-8) M.V.C.2094/2014 to
2096/2014
on the date of the alleged accident and since one year he
was working as a cleaner in the said lorry and the lorry
owner using the said lorry for the purpose of lifting the
sand and he has pleaded ignorance about the permit to
lift the sand to the Bangalore and he has denied that as
on the date of the alleged accident, he was not travelling
in the offenidng vehicle and other inmates were also not
travelling as a loader and unloader and as on the date of
the alleged accident, he was travelling in the offending
vehicle as an unauthorised passenger, that is the reason
why, 7 days delay was caused in lodging the complaint
and he has denied that as on the date of the alleged
accident, he was not proceeding as a cleaner, but he was
proceeding as an unauthorised passenger.
12. The PW2 being the petitioner in MVC
2095/2014 in his evidence has stated that on 26-02-
2014 at about 4.15 p.m., he was proceeding in a HGV
lorry as a loader and unloader on Bangalore Magadi main
road, when the said lorry reached near Karekallupalya
14 (SCCH-8) M.V.C.2094/2014 to
2096/2014
Cross, the driver of the said lorry has drove the same
with high speed in a rash and negligent manner, without
observing the traffic rules and regulations and lost the
control dashed against the road side tree. Due to the
terrific impact, he was sustained grievous injuries. So,
immediately he was shifted to Sri Lakshmi Hospital,
wherein he took the treatment as an inpatient by
spending huge amount. The accident in question was
taken place on account of rash and negligent driving of
the lorry driver. The PW2 in his cross examination has
denied that as on the date of the alleged accident, he was
travelling in the lorry as an unauthorised passenger and
he was not travelling as a loader and unloader and he
has created the documents in order to get the
compensation.
13. The PW3 being the petitioner in MVC
2096/2014 in his evidence has stated that on 26-02-
2014 at about 4.15 p.m., he was proceeding in a HGV
lorry as a loader and unloader on Bangalore Magadi main
15 (SCCH-8) M.V.C.2094/2014 to
2096/2014
road, when the said lorry reached near Karekallupalya
Cross, the driver of the said lorry has drove the same
with high speed in a rash and negligent manner, without
observing the traffic rules and regulations and lost the
control dashed against the road side tree. Due to the
terrific impact, he was sustained grievous injuries. So,
immediately he was shifted to Sri Lakshmi Hospital,
wherein he took the treatment as an inpatient by
spending huge amount. The accident in question was
taken place on account of rash and negligent driving of
the lorry driver. The PW3 in his cross examination has
denied that as on the date of the alleged accident, he was
not travelling as a loader and unloader and he was
travelling in the lorry as an unauthorised passenger, that
is the reason why, 7 days delay was caused in lodging the
complaint and they have colluding with the police and
the owner of the vehicle have falsely implicated the
vehicle in order to get the compensation.
16 (SCCH-8) M.V.C.2094/2014 to
2096/2014
14. The petitioners in support of their oral
evidence have produced the documents marked as Ex.P1
to Ex.P23. Ex.P1 is the information filed by one K.N.
Kumar who is none other than the petitioner in MVC
2095/2014 in which he has stated that since 4 months,
he was working as a loader and unloader in a lorry
bearing No.KA-41-A-8748 which belongs to the
Somashekar and one Purushotham was also working as
a loader and unloader and one Bharath who is the
cleaner of the said lorry and they use to lift the sand
through the said lorry to the Bangalore. On 26-02-2014
they came to the Bangalore in a lorry bearing No.KA-41-
A-8748, after unloading the sand were proceeding on
Bangalore Magadi main road, when they were reached
near Karekellupalya Cross at about 4.15 p.m., the driver
of the said lorry has drove the same with high speed in a
rash and negligent manner, without observing the traffic
rules and regulations and lost the control dashed against
the road side tree. Due to the terrific impact, himself and
other inmates of the lorry were sustained grievous
17 (SCCH-8) M.V.C.2094/2014 to
2096/2014
injuries. So based on the information which was taken at
Lakshmi Multi Speciality Hospital, Thavarekere Police
have registered the case against the lorry driver in their
police station crime No.129/2014 for the offences
punishable u/s 279 and 337 of IPC. The learned counsel
for the respondent has cross examined the PW1 to PW3,
but nothing is elicited to disbelieve their evidence.
Though, the said counsel has suggested the PW1 to PW3
that as on the date of the alleged accident, they were
proceeding in the offending vehicle as an unauthorised
passengers and they were not proceeding as a cleaner
nor the loader and unloader for which they have denied
the same. Except the suggestion to the PW1 to PW3
nothing is placed on record to show that as on the date of
the alleged accident, the PW1 to PW3 were travelling in
the offending vehicle as an unauthorised passenger and
they did not travelling either the cleaner nor the loader
and unloader. Even the respondent has not examined the
offending vehicle driver nor the witnesses who are cited
in the charge sheet to show that as on the date of the
18 (SCCH-8) M.V.C.2094/2014 to
2096/2014
alleged accident, the petitioners were not travelling in a
offending vehicle as cleaner nor loader and unloader, if
that is so, the matter would have different. Ex.P1 clearly
reflects that as on the date of the alleged accident, the
PW1 to PW3 were travelling in the offending vehicle as a
cleaner, loader and unloader. So, Ex.P1 and Ex.P2 are
corroborate the evidence of the PW1 to PW3, even the
respondent has not challenged either the complaint nor
the charge sheet filed against the offending vehicle to
show that the petitioners have falsely implicated the
vehicle nor placed any materials to show that as on the
date of the alleged accident, the petitioners were not
travelling as a cleaner or loader and unloader, as they
were travelling as an unauthorised passengers. In the
absence of the materials on record from the respondent
side, it is clear that as on the date of the alleged accident,
the petitioners were travelling in a offending vehicle as a
cleaner, loader and unloader. Though, the respondent
has taken up the contention that there is a 7 days delay
in lodging the complaint, that itself is clear that the
19 (SCCH-8) M.V.C.2094/2014 to
2096/2014
petitioners have falsely filed the complaint against the
offending vehicle driver, but the suggestion made by the
learned counsel for the respondent to the PW1 to PW3
clearly reflects that as on the date of the alleged accident,
the petitioners were travelling in a offending vehicle and
the driver of the offending vehicle has drove the same
with high speed in a rash and negligent manner, without
observing the traffic rules and regulations dashed against
the road side tree, as a result the petitioner were
sustained injuries as shown in the wound certificate. So,
one thing is clear from the suggestion of the learned
counsel for the respondent clear that as on the date of
the alleged accident, the petitioners were travelling in a
offending vehicle as a cleaner, loader and unloader and
they sustained the injuries in a road traffic accident
caused by the offending vehicle driver. Ex.P3 is the
panchanama clearly reflects that the accident in question
was taken place on account of rash and negligent driving
of the offending vehicle driver and moreover the learned
counsel for the respondent has not at all denied the
20 (SCCH-8) M.V.C.2094/2014 to
2096/2014
accident said to have been taken place on 26-02-2014.
So, Ex.P5 reflects that the accident was taken place and
Motor Vehicles Inspector has inspected the vehicle and
found the damages as shown in the Ex.P5, that itself is
clear that the accident was occurred on account of rash
and negligent driving of the offending vehicle driver and
the petitioners were sustained the injuries. Ex.P4 to
Ex.P23 are clearly reflects that the petitioners were
travelling in a offending vehicle as a cleaner, loader and
unloader and the accident was occurred on account of
rash and negligent driving of the offending vehicle driver
and they were sustained grievous injuries and took the
treatment as an inpatient by spending huge amount. So,
the documents marked as Ex.P1 to Ex.P23 are coupled
with the oral evidence of the PW1 to PW3. Though, the
respondent has examined his Deputy Manager, but his
evidence will not help the respondent to prove that as on
the date of the alleged accident, the petitioners were not
travelling as a cleaner, loader and unloader, since the
respondent has not placed any rebuttal evidence to
21 (SCCH-8) M.V.C.2094/2014 to
2096/2014
disbelieve the oral and documentary evidence of the
petitioners. On the other hand the petitioners have
proved their case through oral and documentary evidence
that the accident in question was taken place on account
of rash and negligent driving of the offending vehicle
driver. Hence, I am of the opinion that the issue No.1 in
all the claim petitions is answered as affirmative.
15. Issue No.2 in MVC 2094/2014:
The PW1 being the injured in MVC 2094/2014 in
his evidence has clearly stated that on 26-02-2014 at
about 4.15 p.m., he was proceeding as a cleaner in a
lorry bearing No.KA-41-A-8748, the driver of the said
lorry has drove the same in a rash and negligent manner,
without observing the traffic rules and regulations lost
the control over the lorry and dashed against the road
side tree. Due to the said impact he was sustained the
following injuries;
1) Contusion over the right on lateral
aspect, measuring 4x3 cms, X-ray of
22 (SCCH-8) M.V.C.2094/2014 to
2096/2014
right thigh shows fracture of femur at the
junction of upper 1 ½ with lower ½.
2) Contusion over the forehead on right
side, measuring 2x2 cms.
16. So, immediately he was shifted to Sri Lakshmi
Hospital, wherein he took the treatment as an inpatient,
as he has sustained fracture of right femur and
underwent open reduction and internal with IL nailing
was done on 27-02-2014 and he has also took the
treatment till 04-03-2014 and discharged with an advice
for regular follow up treatment.
17. Prior to the accident he was hale and healthy
working as a cleaner by getting monthly income of
Rs.8,000/- and Rs.50/- bata per day, due to the
accidental injuries, he was undergoing deep mental
shock and agony, suffering unbearable pain, untold
hardship and discomfort and he cannot lift weight due to
the fracture of right femur and he cannot squat on floor,
as his right leg became weak and he is limping on the
right side. The PW1 in his cross examination has denied
that he has sustained only simple injuries and created
23 (SCCH-8) M.V.C.2094/2014 to
2096/2014
the documents and medical bills in order to get the
compensation and he has not facing any difficulties as
alleged in the affidavit.
18. The PW4 being the Orthopaedic Surgeon at
Lakshmi Hospital, Magadi main road, Bangalore in his
evidence has stated that the petitioner has met with an
accident on 26-02-2014 and sustained the following
injuries;
a) Closed fracture femur right let.
b) ACL Avulsion.
19. So, he was underwent surgery of IL nailing right
femur with heel pad suturing and discharged on 04-03-
2014. Recently on 08-07-2014 he has examined the
petitioner and found the following difficulties;
Stiffness of right hip, stiffness of right
knee, walks with limp, pain in right knee
and difficulty in carrying out activities of
daily living.
24 (SCCH-8) M.V.C.2094/2014 to
2096/2014
20. So, the petitioner has sustained permanent
functional disability of 53% of right lower limb and 18%
of whole body and one more surgery is required for
removal of implants. The PW4 in his cross examination
has admitted that he has treated the petitioner as one of
the team doctor and the case sheet is not disclosing his
name to show that he has also one of the doctor treated
to the petitioner and one Dr. Deepak Kumar has
conducted the surgery and the petitioner has took the
treatment as an outpatient after the discharge, the
fracture is united.
21. The PW1 being the injured in his evidence has
clearly stated about the injuries sustained by him in the
accident and also stated about the difficulties facing by
him after the accident. The PW4 being the Orthopaedic
Surgeon in his evidence has clearly stated about the
complaints and disability of the petitioner after the
accident. So, the evidence of the PW4 corroborate the
evidence of the PW1. Ex.P4 is the wound certificate
25 (SCCH-8) M.V.C.2094/2014 to
2096/2014
issued by the Sri Lakshmi Multi Speciality Hospital,
Bangalore clearly reflects that the petitioner has
sustained the following injuries;
1) Contusion over the right thigh on lateral
aspect, measuring 4x3 cms. X-ray of right
thigh shows fracture of femur at the
junction of upper ½ with lower ½.
2) Contusion over the forehead on right side,
measuring 2x2 cms.
22. So, the above said injury No.1 is grievous in
nature and injury No.2 is simple in nature. Ex.P13 is the
discharge summary clearly reflects that the petitioner
soon after the accident has got admitted to the Sri
Lakshmi Multi Speciality Hospital, wherein he took the
treatment as an inpatient from 26-02-2014 to 04-03-
2014 for a period of 7 days, as he has sustained fracture
of right femur with right ACL avulsion. So, he was
underwent CRIF with IL nailing of right femur under SA
on 27-02-2014, as he has sustained the injury in a road
traffic accident near Maranahalli, Tavarekere, Magadi
main road at 4.30 p.m., on 26-02-2014. Ex.P7 is the
26 (SCCH-8) M.V.C.2094/2014 to
2096/2014
medical bills clearly reflects that the petitioner has took
the treatment in connection of the injuries sustained by
him in a road traffic accident. So, the documents marked
as Ex.P4, Ex.P7 and Ex.P13 are clearly reflects that the
petitioner has took the treatment in connection of the
injuries sustained by him in a road traffic accident and
underwent surgery. So considering the injuries sustained
by the petitioner in a road traffic accident and the
evidence of PW1 and PW4 as well as duration of
treatment, it is just and necessary to grant just
compensation to the petitioner in the following heads;
a) Pain and suffering.
The PW1 being the injured in his evidence has
clearly stated that he has sustained fracture of right
femur in a road traffic accident said to have been taken
place on 26-02-2014 and took the treatment as an
inpatient for a period of 7 days and he has underwent
surgery. PW4 being the Orthopaedic Surgeon in his
evidence has clearly stated about the complaints and
disability of the petitioner after the accident. So
27 (SCCH-8) M.V.C.2094/2014 to
2096/2014
considering the evidence of the PW1 and PW4 and the
injuries sustained by the petitioner as well as the
duration of treatment he would have sustained pain and
agony for which, it is just and necessary to award
compensation of Rs.50,000/- for the above head, it will
meet the ends of justice. Hence, Rs.50,000/- is awarded
for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has
stated that prior to the accident he was hale and healthy
working as a cleaner by getting monthly income of
Rs.8,000/- and Rs.50/- bata per day, after the accident
he could not do the work as before. But the reasons best
known to him has not examined any independent witness
nor examined the person under whom he was working as
a cleaner to show that prior to the accident he was
working as a cleaner by getting monthly income of
Rs.8,000/- and Rs.50/- bata per day. In the absence of
the materials on record, it is very difficult to believe the
income of the petitioner as alleged in the claim petition.
28 (SCCH-8) M.V.C.2094/2014 to
2096/2014
So considering the age and skill of the petitioner and the
present life condition, it is just and necessary to consider
the monthly notional income of Rs.6,000/- it will meet
the ends of justice. Ex.P4 is the wound certificate clearly
reflects that the petitioner has sustained grievous
injuries. Ex.P13 is the discharge summary clearly reflects
that he has sustained the grievous injuries and took the
treatment as an inpatient for a period of 7 days. So, the
petitioner might have lost income for a period of three
months. So three months income comes to Rs.18,000/-.
So Rs.18,000/- is granted for the above head.
c) Medical expenses
The PW1 being the injured in his evidence has
stated that he has sustained fracture of right femur in a
road traffic accident and took the treatment as an
inpatient by spending huge amount of Rs.2,00,000/- and
he lost some of the medical bills, but on record the
petitioner has produced the medical bills worth of
Rs.1,84,543/-. Though the learned counsel for the
respondent has disputed the medical bills produced by
29 (SCCH-8) M.V.C.2094/2014 to
2096/2014
the petitioner, but nothing is placed on record to show
that the medical bills produced by the petitioner are
created nor fabricated in order to get the compensation.
So, in the absence of the materials on record, it is clear
that the petitioner has took the treatment in connection
of the injuries sustained by him in a road traffic accident.
Therefore, Rs.1,84,543/- is granted for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has
clearly stated that he has sustained fracture of right
femur in a road traffic accident said to have been taken
place on 26-02-2014 and took the treatment as an
inpatient for a period of 7 days and he was underwent
surgery, but inspite of best treatment, he could not come
to the normal position. The PW4 being the Orthopaedic
Surgeon in his evidence has clearly stated about the
complaints and disability of the petitioner after the
accident. According to him the petitioner has sustained
permanent functional disability to an extent of 53% of
right lower limb and 18% of total body. The PW4 in his
30 (SCCH-8) M.V.C.2094/2014 to
2096/2014
cross examination has admitted that the fracture is
united. So, considering the evidence of the PW1 and PW4
and the medical records and the injuries sustained by
the petitioner and duration of treatment as well as his
avocation, it is just and necessary to consider the
disability of 13% of the whole body instead of 18%, it will
meet the ends of justice. So, his income is already
considered as Rs.6,000/- per month. Ex.P4 is the wound
certificate clearly reflects that as on the date of the
alleged accident, the petitioner was aged about 25 years.
Ex.P13 is the discharge summary clearly reflects that as
on the date of the alleged accident, the petitioner was
aged about 22 years. The petitioner in his claim petition
has clearly stated that as on the date of the alleged
accident, he was aged about 21 years. So, considering
the medical records and the discharge summary as well
as the wound certificate as on the date of the alleged
accident, the petitioner was aged about 22 years, even if
the petitioner age is taken into consideration as shown in
the Ex.P4 as 25 years, as per Sarlaverma Vs. Delhi
31 (SCCH-8) M.V.C.2094/2014 to
2096/2014
Transport Corporation Ltd., reported in 2009 ACJ 1298
the multiplier applicable is 18. So the loss of future
earning is works out as under;
Rs.6,000X12X18X13/100=1,68,480/-.
Hence, the petitioner is entitled for Rs.1,68,480/-
for the above head.
e) Loss of amenities, conveyance, food and
nourishment, attendant charges:
The PW1 being the injured in his evidence has
clearly stated that he has sustained the fracture in a
road traffic accident said to have been taken place on 26-
02-2014 and took the treatment as an inpatient for a
period of 7 days and he has also took the treatment as an
outpatient and underwent surgery. The PW4 being the
Orthopaedic Surgeon in his evidence has clearly stated
about the complaints and disability of the petitioner after
the accident. So considering the evidence of PW1 and
PW4 and duration of treatment as well as the complaints
and disability of the petitioner after the accident, it is just
32 (SCCH-8) M.V.C.2094/2014 to
2096/2014
and necessary to grant Rs.30,000/- for the above head, it
will meet the ends of justice. So Rs.30,000/- is granted
for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has
clearly stated that he has sustained fracture of right
femur and underwent surgery and implants are in situ.
The PW4 being the Orthopaedic Surgeon in his evidence
has stated that one more surgery is required for removal
of implants. So considering the injuries sustained by him
in a road traffic accident and the evidence of the PW1
and PW4, it is just and necessary to grant Rs.15,000/-
for the above head, it will meet the ends of justice. So
Rs.15,000/- is granted for the above head.
23. Thus the total award stands as follows:
1. Pain and suffering Rs. 50,000-00
2. Loss of income during Rs. 18,000-00
laid up period
3. Medical expenses Rs. 1,84,543-00
4. Loss of future earning Rs. 1,68,480-00
5.Loss of amenities, Rs. 30,000-00
33 (SCCH-8) M.V.C.2094/2014 to
2096/2014
conveyance, food and
nourishment, attendant
charges etc.
6. Future medical expenses Rs. 15,000-00
Total Rs. 4,66,023-00
24. Issue No.2 in MVC 2095/2014:
The PW2 being the injured in MVC 2095/2014 in
his evidence has clearly stated that on 26-02-2014 at
about 4.15 p.m., he was proceeding as a loader and
unloader in a lorry bearing No.KA-41-A-8748, the driver
of the said lorry has drove the same in a rash and
negligent manner, without observing the traffic rules and
regulations lost the control over the lorry and dashed
against the road side tree. Due to the said impact he was
sustained the following injuries;
1) Contusion over the left hand dorsal
aspect, measuring 2x2 cms, X-ray of left
wrist joint shows fracture dislocation of
lower end of forearm.
2) Contusion over the forehead on right
side, measuring 2x1 cms.
34 (SCCH-8) M.V.C.2094/2014 to
2096/2014
25. So, immediately he was shifted to Sri Lakshmi
Hospital, wherein he took the treatment as an inpatient,
as he has sustained fracture dislocation of lower end of
forearm and underwent closed reduction and internal
with K wire fixation on 27-02-2014 and he was also
underwent wound debridement and suturing for facial
injury and took the incentive treatment and discharged
from the hospital on 03-03-2014 and after the discharge
he took the follow up treatment as per the advice of the
doctor by spending huge amount of Rs.1,80,000/-.
26. Prior to the accident he was hale and healthy
working as a loader and unloader by getting monthly
income of Rs.10,000/-, due to the accidental injuries, he
was undergoing deep mental shock and agony and he
cannot lift weight nor sleep on the left side and he is
unable to do work as loader and unloader due to fracture
of left wrist. So, he could not fold his left hand and his
left hand became weak. The PW2 in his cross
examination has denied that he has sustained only
35 (SCCH-8) M.V.C.2094/2014 to
2096/2014
simple injuries and created the documents and medical
bills in order to get the compensation and he has
admitted that he has not produced estimation document
for removal of implants and he has denied that he has
not sustained any financial loss, due to the accidental
injuries.
27. The PW4 being the Orthopaedic Surgeon at
Lakshmi Hospital, Magadi main road, Bangalore in his
evidence stated that the petitioner has met with an
accident on 26-02-2014 and sustained the following
injuries;
a) Fracture dislocation lower end forearm left.
b) Contusion forehead.
28. So, he was underwent surgery ORIF with K wire
fixation and external fixator application left wrist on 27-
02-2014 and debridement and suturing of facial wounds
and he was discharged on 03-03-2014. He was re-
examined the petitioner on 08-07-2014 for the purpose of
disability assessment and found the following difficulties;
36 (SCCH-8) M.V.C.2094/2014 to
2096/2014
Stiffness of left hip, difficulty in
carrying out activities of daily living and
complete union of fracture.
29. So, the petitioner has sustained permanent
functional disability of 38% of right lower limb and 13%
of whole body and one more surgery is required for
removal of implants. The PW4 in his cross examination
has admitted that the fracture is united and he has
denied that he has stated more disability in order to help
the petitioner and he has admitted that on 08-07-2015
after clinical examination of the petitioner has stated the
disability of the petitioner and he cannot say the exact
date of union of the fracture and he has stated in the
affidavit about the functional disability of the petitioner
to an extent of 13% and he has denied that the petitioner
is not facing any difficulties for his day to day life and he
has admitted that in the x-ray films implants are not in
situ. So, one more surgery is not required for removal of
implants.
37 (SCCH-8) M.V.C.2094/2014 to
2096/2014
30. The PW2 being the injured in his evidence has
clearly stated about the injuries sustained by him in the
accident and also stated about the difficulties facing by
him after the accident as well as treatment taken by the
petitioner as an inpatient and outpatient. The PW4 being
the Orthopaedic Surgeon in his evidence has clearly
stated about the complaints and disability of the
petitioner after the accident. So, the evidence of the PW4
corroborate the evidence of the PW2. Ex.P14 is the
wound certificate issued by the Sri Lakshmi Multi
Speciality Hospital, Bangalore clearly reflects that the
petitioner has sustained the following injuries;
1) Contusion over the left hand dorsal
aspect, measuring 2x2 cms, X-ray of left
wrist joint shows fracture dislocation of
lower end of forearm.
2) Contusion over the forehead on right
side, measuring 2x1 cms.
31. So, the above said injury No.1 is grievous in
nature and injury No.2 is simple in nature. Ex.P15 is the
discharge summary clearly reflects that the petitioner
soon after the accident has got admitted to the Sri
38 (SCCH-8) M.V.C.2094/2014 to
2096/2014
Lakshmi Multi Speciality Hospital, wherein he took the
treatment as an inpatient from 26-02-2014 to 03-03-
2014 for a period of 6 days, as he has sustained fracture
dislocation of left wrist, fracture of left ribs and facial
injury. So, he was underwent CRIF with K wire fixation
with external fixator under GA on 27-02-2014 for facial
injury, debridement and suturing under GA on 27-02-
2014, as he has sustained the injury in a road traffic
accident near Maranahalli, Tavarekere, Magadi main
road at 4.30 p.m., on 26-02-2014. Ex.P9 is the medical
bills clearly reflects that the petitioner has took the
treatment in connection of the injuries sustained by him
in a road traffic accident. Ex.P20 is the MLC reflects that
the petitioner has sustained grievous injury in a road
traffic accident and took the treatment as an inpatient
and underwent surgery. So, the documents marked as
Ex.P9, Ex.P14, Ex.P15 and Ex.P20 are clearly reflects
that the petitioner has took the treatment in connection
of the injuries sustained by him in a road traffic accident
and underwent surgery. So considering the injuries
39 (SCCH-8) M.V.C.2094/2014 to
2096/2014
sustained by the petitioner in a road traffic accident and
the evidence of PW2 and PW4 as well as duration of
treatment, it is just and necessary to grant just
compensation to the petitioner in the following heads;
a) Pain and suffering.
The PW2 being the injured in his evidence has
clearly stated that he has sustained fracture of left wrist
joint and dislocation of lower end of forearm and
contusion over the forehead on right side in a road traffic
accident said to have been taken place on 26-02-2014
and took the treatment as an inpatient for a period of 6
days and he has underwent surgery. PW4 being the
Orthopaedic Surgeon in his evidence has clearly stated
about the complaints and disability of the petitioner after
the accident. So considering the evidence of the PW2 and
PW4 and the injuries sustained by the petitioner as well
as the duration of treatment he would have sustained
pain and agony for which, it is just and necessary to
award compensation of Rs.40,000/- for the above head,
40 (SCCH-8) M.V.C.2094/2014 to
2096/2014
it will meet the ends of justice. Hence, Rs.40,000/- is
awarded for the above head.
b) Loss of income during laid up period:
The PW2 being the injured in his evidence has
stated that prior to the accident he was hale and healthy
working as a loader and unloader by getting monthly
income of Rs.10,000/-, after the accident he could not do
the work as before. But the reasons best known to him
has not examined any independent witness nor examined
the person under whom he was working as a loader and
unloader to show that prior to the accident he was
working as a loader and unloader by getting monthly
income of Rs.10,000/-. In the absence of the materials on
record, it is very difficult to believe the income of the
petitioner as alleged in the claim petition. So considering
the age and skill of the petitioner and the present life
condition, it is just and necessary to consider the
monthly notional income of Rs.6,000/- it will meet the
ends of justice. Ex.P14 is the wound certificate clearly
reflects that the petitioner has sustained grievous
41 (SCCH-8) M.V.C.2094/2014 to
2096/2014
injuries. Ex.P15 is the discharge summary clearly reflects
that he has sustained the grievous injuries and took the
treatment as an inpatient for a period of 6 days. So, the
petitioner might have lost income for a period of three
months. So three months income comes to Rs.18,000/-.
So Rs.18,000/- is granted for the above head.
c) Medical expenses
The PW2 being the injured in his evidence has
stated that he has sustained fracture of left wrist joint
and dislocation of lower end of forearm and contusion
over the forehead on right side in a road traffic accident
and took the treatment as an inpatient by spending huge
amount of Rs.1,80,000/- and he lost some of the medical
bills, but on record the petitioner has produced the
medical bills worth of Rs.1,98,424/-. Though the learned
counsel for the respondent has disputed the medical bills
produced by the petitioner, but nothing is placed on
record to show that the medical bills produced by the
petitioner are created nor fabricated in order to get the
compensation. So, in the absence of the materials on
42 (SCCH-8) M.V.C.2094/2014 to
2096/2014
record, it is clear that the petitioner has took the
treatment in connection of the injuries sustained by him
in a road traffic accident. Therefore, Rs.1,98,424/- is
granted for the above head.
d) Loss of future earning:
The PW2 being the injured in his evidence has
clearly stated that he has sustained fracture of left wrist
joint and dislocation of lower end of forearm and
contusion over the forehead on right side in a road traffic
accident said to have been taken place on 26-02-2014
and took the treatment as an inpatient for a period of 6
days and he was underwent surgery, but inspite of best
treatment, he could not come to the normal position. The
PW4 being the Orthopaedic Surgeon in his evidence has
clearly stated about the complaints and disability of the
petitioner after the accident. According to him the
petitioner has sustained permanent functional disability
to an extent of 38% of right lower limb and 13% of total
body. The PW4 in his cross examination has admitted
that the fracture is united. So, considering the evidence
43 (SCCH-8) M.V.C.2094/2014 to
2096/2014
of the PW2 and PW4 and the medical records and the
injuries sustained by the petitioner and duration of
treatment as well as his avocation, it is just and
necessary to consider the disability of 8% of the whole
body instead of 13%, it will meet the ends of justice. So,
his income is already considered as Rs.6,000/- per
month. Ex.P14 and Ex.P15 are the wound certificate and
discharge summary clearly reflects that as on the date of
the alleged accident, the petitioner was aged about 18
years. The petitioner in his claim petition has clearly
stated that as on the date of the alleged accident, he was
aged about 19 years. Therefore, the petitioner age is
taken into consideration as 19 years as on the date of the
alleged accident, as shown in the claim petition. So, by
virtue of the Sarlaverma Vs. Delhi Transport Corporation
Ltd., reported in 2009 ACJ 1298 the multiplier applicable
is 18. So the loss of future earning is works out as under;
Rs.6,000X12X18X8/100=1,03,680/-.
Hence, the petitioner is entitled for Rs.1,03,680/-
for the above head.
44 (SCCH-8) M.V.C.2094/2014 to
2096/2014
e) Loss of amenities, conveyance, food and
nourishment, attendant charges:
The PW2 being the injured in his evidence has
clearly stated that he has sustained the fracture in a
road traffic accident said to have been taken place on 26-
02-2014 and took the treatment as an inpatient for a
period of 6 days and he has also took the treatment as an
outpatient and underwent surgery. The PW4 being the
Orthopaedic Surgeon in his evidence has clearly stated
about the complaints and disability of the petitioner after
the accident. So considering the evidence of PW2 and
PW4 and duration of treatment as well as the complaints
and disability of the petitioner after the accident, it is just
and necessary to grant Rs.20,000/- for the above head, it
will meet the ends of justice. So Rs.20,000/- is granted
for the above head.
f) Future medical expenses:
The PW2 being the injured in his evidence has
clearly stated that he has sustained fracture of
45 (SCCH-8) M.V.C.2094/2014 to
2096/2014
dislocation of left wrist and left ribs fracture as well as
facial injury and underwent surgery. So, Rs.25,000/- to
Rs.30,000/- is required for future medication. The PW4
being the Orthopaedic Surgeon in his evidence has stated
that one more surgery is required for removal of
implants, but in his cross examination has categorically
admitted that the x-ray film which belongs to the
petitioner reflects no implants in situ and one more
surgery is not required for removal of implants. So, the
admission of the PW4 clearly reflects that no implants
are in situ. So, question of one more surgery for removal
of implants does not arise. Therefore, no amount is
granted for the above head.
32. Thus the total award stands as follows:
1. Pain and suffering Rs. 40,000-00
2. Loss of income during Rs. 18,000-00
laid up period
3. Medical expenses Rs. 1,98,424-00
4. Loss of future earning Rs. 1,03,680-00
5.Loss of amenities, Rs. 20,000-00
conveyance, food and
nourishment, attendant
charges etc.
46 (SCCH-8) M.V.C.2094/2014 to
2096/2014
6. Future medical expenses Nil
Total Rs. 3,80,104-00
33. Issue No.2 in MVC 2096/2014:
The PW3 being the injured in MVC 2096/2014 in
his evidence has clearly stated that on 26-02-2014 at
about 4.15 p.m., he was proceeding as a loader and
unloader in a lorry bearing No.KA-41-A-8748, the driver
of the said lorry has drove the same in a rash and
negligent manner, without observing the traffic rules and
regulations lost the control over the lorry and dashed
against the road side tree. Due to the said impact he was
sustained the following injuries;
1) Contusion over the right knee joint on
lateral aspect, measuring 2x2 cms, X-ray
of right knee joint shows fracture of
medial tibial condyle.
2) Contusion over the right arm on lateral
aspect in the middle 1/3rd, measuring
2x2 cms.
34. So, immediately he was shifted to Sri Lakshmi
Hospital, wherein he took the treatment, during the
47 (SCCH-8) M.V.C.2094/2014 to
2096/2014
course of treatment suturing was done and he was taken
incentive treatment till 03-03-2014 and discharged with
an advice for follow up treatment. So, he has spent
Rs.1,50,000/- towards hospitalization and medical
expenses.
35. Prior to the accident he was hale and healthy
working as a loader and unloader by getting monthly
income of Rs.10,000/-, due to the accidental injuries, he
was undergoing deep mental shock and agony and he
cannot lift weight nor able to do the work as before. Due
to the fracture of right medical tibial condyle, he could
not squat on the floor and his right leg became weak,
even he could not walk for long distance nor climb stair
case. The PW3 in his cross examination has denied that
he has sustained only simple injuries and created the
documents and medical bills in order to get the
compensation and he has admitted that he has not
produced any document to show that he was working as
a loader and unloader.
48 (SCCH-8) M.V.C.2094/2014 to
2096/2014
36. The PW4 being the Orthopaedic Surgeon at
Lakshmi Hospital, Magadi main road, Bangalore in his
evidence has stated that the petitioner has met with an
accident on 26-02-2014 and sustained the following
injuries;
1) Closed fracture medial condyle tibia right leg.
c) Contusion right knee.
37. So, he was treated in form synthetic cylinder
cast right leg and he was discharged on 03-03-2014. He
has re-examined the petitioner on 08-07-2014 for the
purpose of disability assessment and found the following
difficulties;
Stiffness of left hip, difficulty in
carrying out activities of daily living and
complete union of fracture and patient
complains of pain in right knee.
38. So, the petitioner has sustained permanent
functional disability of 48% of right lower limb and 16%
of whole body and one more surgery is required for
49 (SCCH-8) M.V.C.2094/2014 to
2096/2014
removal of implants. The PW4 in his cross examination
has admitted that the fracture is united and he has
denied that the petitioner has not facing any difficulties
for his day to day work and he has stated more disability
in order to help the petitioner to get more compensation
and the petitioner has not sustained the permanent
disability due to the accidental injuries and he has
admitted that the x-ray films are not reflects about the
implants and one more surgery is not required for
removal of implants and as per the CT scan, the
petitioner is not facing any problems in respect of the
head injuries.
39. The PW3 being the injured in his evidence has
clearly stated about the injuries sustained by him in the
accident and also stated about the difficulties facing by
him after the accident as well as treatment taken by the
petitioner as an inpatient and outpatient. The PW4 being
the Orthopaedic Surgeon in his evidence has clearly
stated about the complaints and disability of the
50 (SCCH-8) M.V.C.2094/2014 to
2096/2014
petitioner after the accident. So, the evidence of the PW4
corroborate the evidence of the PW3. Ex.P16 is the
wound certificate issued by the Sri Lakshmi Multi
Speciality Hospital, Bangalore clearly reflects that the
petitioner has sustained the following injuries;
1) Contusion over the right knee joint on
lateral aspect, measuring 2x2 cms, X-ray
of right knee joint shows fracture of
medial tibial condyle.
2) Contusion over the right arm on lateral
aspect in the middle 1/3rd, measuring
2x2 cms.
40. So, the above said injury No.1 is grievous in
nature and injury No.2 is simple in nature. Ex.P17 is the
discharge summary clearly reflects that the petitioner
soon after the accident has got admitted to the Sri
Lakshmi Multi Speciality Hospital, wherein he took the
treatment as an inpatient from 26-02-2014 to 03-03-
2014 for a period of 6 days, as he has sustained
communited fracture of right medical tibial condyle
involving articular surface and contusion injury right
knee. So, he was treated symptomatically and he was
51 (SCCH-8) M.V.C.2094/2014 to
2096/2014
hemodynamically stable and discharged with an advice
for follow up treatment, as he has sustained the injury in
a road traffic accident near Maranahalli, Tavarekere,
Magadi main road at 4.30 p.m., on 26-02-2014. Ex.P11
is the medical bills clearly reflects that the petitioner has
took the treatment in connection of the injuries sustained
by him in a road traffic accident. Ex.P22 is the case sheet
reflects that the petitioner has sustained grievous injury
in a road traffic accident and took the treatment as an
inpatient. So, the documents marked as Ex.P11, Ex.P16,
Ex.P17 and Ex.P22 are clearly reflects that the petitioner
has took the treatment in connection of the injuries
sustained by him in a road traffic accident. So
considering the injuries sustained by the petitioner in a
road traffic accident and the evidence of PW3 and PW4 as
well as duration of treatment, it is just and necessary to
grant just compensation to the petitioner in the following
heads;
52 (SCCH-8) M.V.C.2094/2014 to
2096/2014
a) Pain and suffering.
The PW3 being the injured in his evidence has
clearly stated that he has sustained communited fracture
of right medical tibial condyle involving articular surface
and contusion injury right knee in a road traffic accident
said to have been taken place on 26-02-2014 and took
the treatment as an inpatient for a period of 6 days. PW4
being the Orthopaedic Surgeon in his evidence has
clearly stated about the complaints and disability of the
petitioner after the accident. So considering the evidence
of the PW3 and PW4 and the injuries sustained by the
petitioner as well as the duration of treatment he would
have sustained pain and agony for which, it is just and
necessary to award compensation of Rs.40,000/- for the
above head, it will meet the ends of justice. Hence,
Rs.40,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW3 being the injured in his evidence has
stated that prior to the accident he was hale and healthy
working as a loader and unloader by getting monthly
53 (SCCH-8) M.V.C.2094/2014 to
2096/2014
income of Rs.10,000/-, after the accident he could not do
the work as before. But the reasons best known to him
has not examined any independent witness nor examined
the person under whom he was working as a loader and
unloader to show that prior to the accident he was
working as a cleaner by getting monthly income of
Rs.10,000/-. In the absence of the materials on record, it
is very difficult to believe the income of the petitioner as
alleged in the claim petition. So considering the age and
skill of the petitioner and the present life condition, it is
just and necessary to consider the monthly notional
income of Rs.6,000/- it will meet the ends of justice.
Ex.P16 is the wound certificate clearly reflects that the
petitioner has sustained grievous injuries. Ex.P17 is the
discharge summary clearly reflects that he has sustained
the grievous injuries and took the treatment as an
inpatient for a period of 6 days. So, the petitioner might
have lost income for a period of three months. So three
months income comes to Rs.18,000/-. So Rs.18,000/- is
granted for the above head.
54 (SCCH-8) M.V.C.2094/2014 to
2096/2014
c) Medical expenses
The PW3 being the injured in his evidence has
stated that he has sustained communited fracture of
right medical tibial condyle involving articular surface
and contusion injury right knee in a road traffic accident
and took the treatment as an inpatient by spending huge
amount of Rs.1,50,000/- and he lost some of the medical
bills, but on record the petitioner has produced the
medical bills worth of Rs.1,33,546/-. Though the learned
counsel for the respondent has disputed the medical bills
produced by the petitioner, but nothing is placed on
record to show that the medical bills produced by the
petitioner are created nor fabricated in order to get the
compensation. So, in the absence of the materials on
record, it is clear that the petitioner has took the
treatment in connection of the injuries sustained by him
in a road traffic accident. Therefore, Rs.1,33,546/- is
granted for the above head.
55 (SCCH-8) M.V.C.2094/2014 to
2096/2014
d) Loss of future earning:
The PW3 being the injured in his evidence has
clearly stated that he has sustained communited fracture
of right medical tibial condyle involving articular surface
and contusion injury right knee in a road traffic accident
said to have been taken place on 26-02-2014 and took
the treatment as an inpatient for a period of 6 days, but
inspite of best treatment, he could not come to the
normal position. The PW4 being the Orthopaedic Surgeon
in his evidence has clearly stated about the complaints
and disability of the petitioner after the accident.
According to him the petitioner has sustained permanent
functional disability to an extent of 48% of right lower
limb and 16% of total body. The PW4 in his cross
examination has admitted that the fracture is united and
x-ray films are not reflects that implants in situ and one
more surgery is not required for removal of inplants. So,
considering the evidence of the PW3 and PW4 and the
medical records and the injuries sustained by the
petitioner and duration of treatment as well as his
56 (SCCH-8) M.V.C.2094/2014 to
2096/2014
avocation, it is just and necessary to consider the
disability of 9% of the whole body instead of 16%, it will
meet the ends of justice. So, his income is already
considered as Rs.6,000/- per month. Ex.P16 and Ex.P17
are the wound certificate and discharge summary clearly
reflects that as on the date of the alleged accident, the
petitioner was aged about 18 years. The petitioner in his
claim petition has clearly stated that as on the date of the
alleged accident, he was aged about 19 years. Therefore,
the petitioner age is taken into consideration as 19 years
as on the date of the alleged accident, as shown in the
claim petition. So, by virtue of the Sarlaverma Vs. Delhi
Transport Corporation Ltd., reported in 2009 ACJ 1298
the multiplier applicable is 18. So the loss of future
earning is works out as under;
Rs.6,000X12X18X9/100=1,16,640/-.
Hence, the petitioner is entitled for Rs.1,16,640/-
for the above head.
57 (SCCH-8) M.V.C.2094/2014 to
2096/2014
e) Loss of amenities, conveyance, food and
nourishment, attendant charges:
The PW3 being the injured in his evidence has
clearly stated that he has sustained the communited
fracture of right medical tibial condyle involving articular
surface and contusion injury right knee in a road traffic
accident said to have been taken place on 26-02-2014
and took the treatment as an inpatient for a period of 6
days and he has also took the treatment as an
outpatient. The PW4 being the Orthopaedic Surgeon in
his evidence has clearly stated about the complaints and
disability of the petitioner after the accident. So
considering the evidence of PW3 and PW4 and duration
of treatment as well as the complaints and disability of
the petitioner after the accident, it is just and necessary
to grant Rs.15,000/- for the above head, it will meet the
ends of justice. So Rs.15,000/- is granted for the above
head.
58 (SCCH-8) M.V.C.2094/2014 to
2096/2014
f) Future medical expenses:
The PW3 being the injured in his evidence has
clearly stated that he has sustained grievous injuries in a
road traffic accident said to have been taken place on 26-
02-2014 and took the treatment as an inpatient for a
period of 6 days. The PW4 being the Orthopaedic Surgeon
in his evidence has stated that the petitioner has
sustained fracture and underwent surgery and implants
in situ. So, one more surgery is required for removal of
implants, but in his cross examination has categorically
admitted that the x-ray film which belongs to the
petitioner reflects no implants in situ and one more
surgery is not required for removal of implants. So, the
admission of the PW4 clearly reflects that no implants
are in situ. So, question of one more surgery for removal
of implants does not arise. Therefore, no amount is
granted for the above head.
41. Thus the total award stands as follows:
1. Pain and suffering Rs. 40,000-00
2. Loss of income during Rs. 18,000-00
59 (SCCH-8) M.V.C.2094/2014 to
2096/2014
laid up period
3. Medical expenses Rs. 1,33,546-00
4. Loss of future earning Rs. 1,16,640-00
5.Loss of amenities, Rs. 15,000-00
conveyance, food and
nourishment, attendant
charges etc.
6. Future medical expenses Nil
Total Rs. 3,23,186-00
42. The respondent No.2 being the insurer of the
offending vehicle in its written statement has taken up
the contention that there is a 7 days delay in lodging the
complaint. If at all the offending vehicle was involved in
the accident and the petitioners were sustained the
injuries in a road traffic accident said to have been taken
place on 26-02-2014, the owner of the vehicle would have
lodged the complaint. So, non filing of the complaint
within 7 days from the date of accident, it is clear that
the petitioners have falsely implicated the vehicle and
filed the false complaint against the offending vehicle
driver in order to get the compenstion. Ex.P4, Ex.P13 to
Ex.P17 are clearly reflects that the petitioners soon after
60 (SCCH-8) M.V.C.2094/2014 to
2096/2014
the accident were got admitted to the Sri Lakshmi Multi
Speciality Hospital in which they took the treatment from
26-02-2014 in connection of the injuries sustained by
them in a road traffic accident said to have been taken
place on 26-02-2014 near Maranahalli, Tavarekere,
Magadi main road, as the lorry hit to the tree. Thereby,
the petitioners were sustained the injuries. Thus, the
recitals as appeared in the wound certificate and
discharge summary clearly reflects that the petitioners
were sustained the injuries, when the lorry driver has
driven the same with high speed in a rash and negligent
manner, without observing the traffic rules and
regulations hit to the tree.
43. Though, the respondent has denied the accident
said to have been taken place on 26-02-2014, but the
reasons best known to him has not examined the driver
of the lorry to show that as on the date of the alleged
accident, the offending vehicle was not involved in the
accident and moreover Ex.P3 is the panchanama drawn
61 (SCCH-8) M.V.C.2094/2014 to
2096/2014
by the I.O., in which it is clear that the I.O., has shown
the vehicle in the panchanama on the ground that as on
the date of the drawing of the panchanama, the vehicle
was on the spot and they seized the said vehicle. If at all
the vehicle was not involved in the accident question of
seizing the vehicle from the spot by the I.O., does not
arise, as the S.H.O., has shown the vehicle in Ex.P3. If at
all the vehicle was not involved in the accident and it was
not on the alleged spot nothing is prevented to the
respondent to summon the S.H.O., who drawn the
panchanama to show that the offending vehicle was not
at all involved in the accident nor on the spot as on the
date of the panchanama, if that is so, the matter would
have different. But, the reasons best known to the
respondent has not taken any steps to examine either the
S.H.O., nor the I.O., who conducted the investigation.
Now, the question is whether this Tribunal can reject the
claim petition only on the ground that there is a 7 days
delay in lodging the complaint. So, this Court drawn its
attention on the decision of the Hon'ble Supreme Court
62 (SCCH-8) M.V.C.2094/2014 to
2096/2014
reported in (2011) 4 SC 693 in between Ravi vs.
Badrinarayan and others reads like thus;
A. Motor Vehicles Act, 1988 - Ss. 166,
168 and 173 - Delay in lodging FIR -
Dismissal of claim petition based thereon -
Legality of - Held, delay in lodging FIR
Cannot be a ground to doubt claimant's
case in genuine case - In Indian conditions,
it is not expected that a person would to
rush to police station after accident -
Treatment of victim is given priority over
lodging FIR - Kith and kin of victim are not
expected to act mechanically with
promptitude in lodging FIR - Hence, delay
in lodging FIR not a ground to dismiss
claim petition - Criminal Procedure Code,
1973, S.154.
44. On careful perusal of the above said decision, in
the said decision the accident was taken place on 07-10-
2001 at about 8.30 a.m., the father of the claimant has
filed the complaint on 26-01-2002 at about 12.15 p.m.,
almost 3 months 19 days delay in lodging the complaint.
The claim petition filed by the petitioner was came to be
63 (SCCH-8) M.V.C.2094/2014 to
2096/2014
dismissed by the Tribunal on the ground that there is a
delay in lodging the complaint and the claimant has fail
to establish on the fateful day, the truck was involved in
the motor road accident causing the injuries to him.
Thereby, the claimant has filed the appeal before the
Hon'ble High Court of Judicature of Rajasthan, Jaipur
and the said appeal was also came to be dismissed.
Thereby, the claimant has filed the appeal before the
Hon'ble Supreme Court. Thus, their lordship held that
delay in lodging the FIR cannot be a ground to doubt
claimant's case in genuine case and it is not expected
that a person would to rush to police station after
accident. Kith and kin of victim are not expected to act
mechanically with promptitude in lodging FIR. So, delay
in lodging FIR is not a ground to dismiss claim petition.
Thereby, the appeal was came to be allowed.
45. In the instant case, the wound certificate and
discharge summary clearly reflects that the petitioners
soon after the accident were got admitted to the Sri
Lakshmi Multi Speciality Hospital till 03-03-2014 and
64 (SCCH-8) M.V.C.2094/2014 to
2096/2014
04-03-2014. Ex.P1 reflects that the police have recorded
the statement of one K.N. Kumar who is the injured on
03-03-2014, that itself is clear when the petitioners were
in the treatment at Sri Lakshmi Multi Speciality Hospital,
the S.H.O., has recorded the statement of the injured,
that itself is clear that soon after the accident, the
petitioners were got admitted to the Sri Lakshmi Multi
Speciality Hospital and took the treatment till 03-03-
2014 and 04-03-2014, during their hospitalization, the
police have recorded the statement of one K.N. Kumar
who is the injured in a road traffic accident, that is the
reason why, the delay was caused in lodging the
complaint and the materials on record reflects that the
petitioners were sustained the injuries in a road traffic
accident said to have been taken place on 26-02-2014,
due to the rash and negligent driving of the offending
vehicle driver. So, the decision as stated above is directly
applicable to the case on hand.
65 (SCCH-8) M.V.C.2094/2014 to
2096/2014
46. The learned counsel for the respondent while
canvassing his arguments has much argued that the
owner of the offending vehicle has not paid the premium
in respect of either cleaner nor the loader and unloader.
Thereby, the respondent No.2 is not liable to pay any
compensation. The RW1 being the Deputy Manager of the
respondent No.2 in his evidence has stated that the
owner of the lorry has not paid the premium in respect of
the cleaner and loader and unloader. Therefore, the
insurance company is not liable to pay any compensation
and the petitioners were not travelling as a cleaner,
loader and unloader in the offending vehicle, they were
travelling as an unauthorised passengers, but the
respondent has not placed any materials to substantiate
its defence. The RW1 in his cross examination has
admitted that as on the date of the alleged accident, the
package policy was in existence, but he has stated that
the policy is not applicable to the loader and unloader,
but it is applicable to third party and he has admitted
that the owner has paid the premium in respect of the
66 (SCCH-8) M.V.C.2094/2014 to
2096/2014
cleaner and he has not produced any document to show
that as on the date of the alleged accident, the vehicle
was not having permit nor fitness certificate and they
have not challenged the charge sheet filed against the
offending vehicle driver. So, one thing is clear from the
evidence of the RW1 that the respondent No.1 being the
owner of the offending vehicle has paid premium in
respect of the cleaner and the policy was in existence as
on the date of the alleged accident. Ex.R1 is the policy
copy reflects that the respondent No.2 being the insurer
of the offending vehicle has issued a package policy in
which including the driver, the owner has paid premium
in respect of 5 persons and in Ex.R1 nowhere appears
that the loader and unloader were not covered under the
policy, as the Ex.P1 reflects about the limits of liability
death of or bodily injury to any person so far as it is
necessary to meet the requirements of the Motor Vehicles
Act. So, in which it is clear that if any person was
succumbed or sustained injury in a road traffic accident,
the package policy is covers otherwise question of
67 (SCCH-8) M.V.C.2094/2014 to
2096/2014
mentioning in the Ex.R1 as "any person" does not arise.
So, Ex.R1 reflects that the second respondent has issued
a package policy in respect of the offending vehicle in
favour of the respondent No.1.
47. The learned counsel for the petitioner while
canvassing his arguments has submitted that the
respondent No.2 being the insurer has issued a package
policy in respect of the offending vehicle in favour of the
first respondent. So, the package policy covers the loader
and unloader as well as the cleaner and the said counsel
has drawn the court attention on the decision of the
Hon'ble High Court of Orissa at Cuttack reported in
2014 ACJ 1776 in between Pinkey Naik vs. ICICI
Lombard General Ins. Co. Ltd., and others reads like
thus;
Motor Vehicles Act, 1988, section 147
(1) (b) proviso - Motor insurance - Goods
vehicle - Liability of insurance company -
Death of coolie travelling in goods vehicle
for loading/unloading goods when the
68 (SCCH-8) M.V.C.2094/2014 to
2096/2014
vehicle met with accident - Tribunal
directed the insurance company to pay and
recover on the ground that risk of coolie
was not covered under the policy - As per
proviso to section 147 (1) (b) coolie
travelling in goods carriage stands
automatically covered under the insurance
policy in respect of goods vehicle and no
additional premium was required to be pain
in respect of such a coolie - Whether there
was breach of policy and Tribunal was
justified in granting recovery rights to the
insurance company - Held: No.
48. On careful perusal of the above said decision, in
the said decision the claimants being the legal heirs of
Sajit alias Ajit Kachhua were filed the claim petition
before the Claims Tribunal and the tribunal held that
Khalasi is not covered under the insurance policy issued
in respect of the said vehicle. Therefore, the insurance
company is not liable to pay the compensation amount
and directed the insurance company to first pay the
compensation amount and to recover the same from the
owner. Thereby, the owner has challenged the same
69 (SCCH-8) M.V.C.2094/2014 to
2096/2014
before the Hon'ble High Court and the Hon'ble High
Court held that death of coolie travelling in a goods
vehicle for loading/unloading goods when the vehicle met
with an accident, as per proviso to Section 141 (1) (b)
coolie travelling in goods carriage stands automatically
covered under the insurance policy in respect of the
goods vehicle and no additional premium was required to
be paid in respect of such a coolie. So, the insurance
company is liable to pay the compensation. So, the
appeal filed by the owner was came to be allowed and set
aside the order passed by the Tribunal and directing the
insurance company to pay the compensation awarded by
the Tribunal.
49. In the instant case also, the second respondent
has issued a package policy and the petitioners while
travelling in the lorry as cleaner, loader and unloader
were sustained the injuries. Therefore, the decision relied
by the learned counsel for the petitioner is directly
applicable to the case on hand.
70 (SCCH-8) M.V.C.2094/2014 to
2096/2014
50. The respondent No.2 being the insurer in its
written statement has admitted about the issuance of the
policy in respect of the offending vehicle in favour of the
first respondent. Ex.R1 is the policy copy in which it is
clear that the policy was valid from 28-09-2013 to 27-09-
2014. The accident was occurred on 26-02-2014. So one
thing is clear that as on the date of the alleged accident
the policy was in existence.
51. Though, the respondent No.2 has taken up the
contention that as on the date of the alleged accident the
offending vehicle driver was not holding valid and
effective driving licence to drive the same. But the
reasons best known to the respondent No.2 has not
placed any materials on record nor examined any
authority i.e., RTO or ARTO to show that as on the date
of the alleged accident the offending vehicle driver was
not holding valid and effective driving licence and Ex.P6
is the final report filed by the I.O., nowhere discloses that
the offending vehicle driver was not holding valid and
71 (SCCH-8) M.V.C.2094/2014 to
2096/2014
effective driving licence as on the date of the alleged
accident. If at all the driver of the offending vehicle was
not holding the valid and effective driving licence the I.O.,
would have charge sheeted against the offending vehicle
driver for the offence punishable under Section 181 of
MV Act. So on record there is no material to show that
the offending vehicle driver was not holding valid and
effective driving licence as on the date of the alleged
accident. So one thing is clear that as on the date of the
alleged accident, the policy was in existence and the
offending vehicle driver was holding valid and effective
driving licence. So, the respondent Nos.1 and 2 are
jointly and severally liable to pay the compensation. But
in view of the valid insurance policy the respondent No.2
alone is liable to pay the compensation to the petitioners
with interest at the rate of 8% p.a. inview of the decision
of the Hon'ble Supreme Court reported in 2012 KLJ
292 from the date of petitions till its realization. Hence, I
am of the opinion that the issue No.2 in all the claim
petitions is answered as partly in the affirmative.
72 (SCCH-8) M.V.C.2094/2014 to
2096/2014
52. Issue No.3 in all the claim petitions.
In view of my finding on issue Nos.1 and 2 in all
claim petitions, I proceed to pass the following:
ORDER
The claim petitions filed by the petitioners in MVC Nos.2094/2014 to 2096/2014 u/s 166 of the M.V. Act are hereby allowed in part with costs.
The compensation in all the cases has been awarded as mentioned here under:
Compensation Sl. MVC Awarded No. Number (in Rupees) 1 2094/2014 Rs. 4,66,023-00 2 2095/2014 Rs. 3,80,104-00 3 2096/2014 Rs. 3,23,186-00 Interest is granted at the rate of 8% per annum from the date of the claim petitions till the date of payment/bank deposit, in all the claim petitions.
In all the claim petitions, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.2 73 (SCCH-8) M.V.C.2094/2014 to 2096/2014 being the insurer in all the claim petitions shall pay the compensation amount with interest at the rate of 8% p.a. from the date of the claim petitions till its realisation within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest in all the claim petitions, 40% of the amount shall be deposited in the name of the petitioners in any nationalised or scheduled bank of their choice for a period of three years and the remaining 60% shall be released to them by means of A/c payee cheque on proper identification. The petitioners are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
The expenses to be incurred for future medication in MVC 2094/2014 shall not carry any interest.
Advocate fee is fixed in each of the petition at Rs.1,000/-.
74 (SCCH-8) M.V.C.2094/2014 to 2096/2014 The original judgment copy shall be kept in MVC No.2094/2014 and copy of the same shall be kept in MVC 2095/2014 and 2096/2014.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this 07th day of September 2015.
(P.J. Somashekar) XII Addl. Small Causes Judge, Member-M.A.C.T., Bangalore. ANNEXURE List of the witnesses examined on behalf of petitioners:
PW1 Sri Bharath C.V. PW2 Sri K.N. Kumar PW3 Sri Purushotham Y.V. PW4 Dr. Arjun S. Prakash
List of the documents exhibited on behalf of petitioners:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Panchanama Ex.P4 True copy of Wound certificate Ex.P5 True copy of IMV Report
75 (SCCH-8) M.V.C.2094/2014 to 2096/2014 Ex.P6 True copy of Charge sheet Ex.P7 25 Medical bills amounting to Rs.1,84,543/- Ex.P8 16 Medical prescriptions Ex.P9 16 Medical bills amounting to Rs.1,98,424/- Ex.P10 15 Medical prescriptions Ex.P11 14 Medical bills amounting to Rs.1,33,546/- Ex.P12 12 Medical prescriptions Ex.P13 Discharge summary Ex.P14 True copy of Wound certificate Ex.P15 Discharge summary Ex.P16 True copy of Wound certificate Ex.P17 Discharge summary Ex.P18 Case sheet Ex.P19 3 X-ray films Ex.P20 Case sheet Ex.P21 6 CT Scan and 4 X-ray films Ex.P22 Case sheet Ex.P23 6 CT Scan and 6 X-ray films List of the witnesses examined on behalf of respondents:
RW1 Sri H.B. Guruprasad List of the documents marked on behalf of respondents:
Ex.R1 True copy of Policy (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.