Bangalore District Court
Sri Pritam B. Mittadar vs Royal Sundaram Alliance Insurance on 6 January, 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 06th day of January 2015
M.V.C.No.2990/2013
Petitioner Sri Pritam B. Mittadar,
S/o M.S. Balasubramanya,
Aged 42 years,
R/at No.306, Vaibhava,
5th Main road, 2nd Cross,
BSK 5th Stage, Uttarahalli-
Kengeri Main road,
Bangalore - 560 061.
(Sri P. Chidananda, Advocate)
V/s
Respondents 1. Royal Sundaram Alliance Insurance
Company Limited,
"Sundaram Towers", 45 & 46,
Whites Road,
Chennai - 600 002.
(Sri Ravi S. Samprathi, Advocate)
2. Sri H. Mahadev,
S/o Late Hanumanthe Gowda,
Maruthi Krupa,
Hanumanthapura Extn.,
Koratagere Taluk,
Tumkur, Karnataka.
(Exparte)
3. Sri Sangappa Kumar,
S/o Basappa,
Aged about 53 years,
R/at Karekallahalli Village,
Gowribidanur Taluk,
Chickballapur District.
(Exparte)
2 (SCCH-8) M.V.C.No.2990/2013
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.2,20,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner in his claim petition has alleged that, on 20- 01-2013 at about 2.30 p.m., he was proceeding in his Santro car bearing No.KA-05-Z-1623 along with his wife Smt. Roopa P. Mittadar, son Master Aneesh P. Mittadar and his wife's maternal uncle M.S. Ramesh Rao from Bangalore towards Tumkur, when they were reached near Sondekoppa Circle, opposite Sapthapadi Kalyana Mantapa, on NH-4 Express High way road, Nelamangala, Bangalore about 20 to 25 kms., away from Bangalore, the driver of the Skoda car bearing No.KA-06-N-4177 has driven the same in a rash and negligent manner, without observing the traffic rules and regulations and crushed on to the road median, jumped the median and dashed the Santro car, as a result car was completely smashed and was damaged, as a result of the impact they were sustained grievous injuries. So, himself and other occupants of the car were immediately taken to M.S. Ramaiah Harsha Hospital, Nelamangala, wherein they took the first aid treatment, later on he
3 (SCCH-8) M.V.C.No.2990/2013 was shifted to BGS Global Hospital, Kengeri, wherein he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy working as a Principal Consultant in M/s. Bigtech Consulting Services Pvt. Ltd., and drawing a monthly salary of Rs.1,33,000/-, due to the accidental injuries he was hospitalised and not in a position to attend his work and he has not been paid the salary for the period as he was hospitalised. So, he was totally immobilized and was stuck to bed with a permanent attendant for his day to day activities and he has suffered loss of income and has been put to severe financial loss and consequently suffered loss of future earnings and he has spent Rs.18,00,000/- towards treatment, hospital charges, medicines, attendant charges, since the fractures have been fixed with external and internal implantations and he has to undergo operation in future and continue with the treatment for his life time. So, he has sustained permanent disability and has completely lost the earning capacity. Apart from the financial loss, he has also suffered on account of pain and suffering, amenities, trauma, agony and has lost family and marital enjoyment. The accident in question was taken place on the rash and negligent driving of the offending vehicle driver. Thereby, the Nelamangala Town Police have registered the case against the offending vehicle driver in their police station Crime 4 (SCCH-8) M.V.C.No.2990/2013 No.20/2013 for the offences punishable u/s 279, 337 and 304(A) of IPC. The respondent Nos.1 to 3 being the insurer, owner and driver are jointly and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondent No.2 and 3 did not appear nor file their written statement, as they were placed exparte. The respondent No.1 has appeared through its counsel and filed its written statement in which he has alleged that the claim petition filed by the petitioner is not maintainable either in law or on facts and either the owner of the offending vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of M.V. Act in furnishing better particulars and as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same, therefore he is not liable to pay any compensation to the petitioner and he has denied that the averments made in column No.1 to 14 and 17 to 21 of the claim petition and further he has denied that the petitioner was proceeding in his Santro car, the driver of the offending vehicle has driven the same in a rash and negligent manner and dashed against the Santro car, as a result the petitioner and inmates of the car were sustained grievous injuries and he has alleged that the accident in question was taken place on the rash and negligent 5 (SCCH-8) M.V.C.No.2990/2013 driving of the petitioner and he has denied the age, avocation and income of the petitioner and prays for reject the claim petition.
5. On the basis of the pleadings of the parties my Predecessor has framed the following issues.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in column No.11, in a road traffic accident on 20-01-2013 at about 2.30 p.m., near Sondekoppa Circle, in front of Sapthapadi Kalyana Mantapa, NH-4 Express Highway road, Nelamangala, Bangalore, due to the rash and negligent driving of the driver of the Skoda car bearing registration No.KA-06-N-4177?
2. Whether petitioner is entitled for any compensation? If so to what extent and from whom?
3. What Order or Award?
6. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P17 and Ex.P25 and he has examined two more witnesses on his behalf as PW2 and PW3 and got marked the documents as Ex.P18 to Ex.P24. The respondent No.1 has not examined any witness nor marked any documents in its favour.
7. Heard arguments on both side.
8. My finding on the above issues are as under:
6 (SCCH-8) M.V.C.No.2990/2013 Issue No.1: Affirmative Issue No.2: Partly affirmative Issue No.3: As per the final order for the following.
REASONS
9. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that on 20-01-2013 at about 2.30 p.m., himself, his wife and son, as well as his wife's maternal uncle were proceeding in his Santro car bearing No.KA-05-Z-1623 from Bangalore towards Tumkur, when they were reached near Sondekoppa Circle, opposite Sapthapadi Kalyana Mantapa, on NH-4 Express High way road, Nelamangala, the driver of the Skoda car bearing No.KA-06-N-4177 has driven the same in a rash and negligent manner and dashed against the Santro car, as a result himself and the occupants of the car were sustained grievous injuries. So, they were immediately shifted to M.S. Ramaiah Harsha Hospital, Nelamangala, wherein they took the first aid treatment, later on he was shifted to BGS Global Hospital, Kengeri, wherein he took the treatment as an inpatient by spending huge amount. Thereby, he has filed the instant claim petition against the respondents.
10. The petitioner in order to prove his case has filed his affidavit as his chief examination as PW1, in which he has stated 7 (SCCH-8) M.V.C.No.2990/2013 that on 20-01-2013 at about 2.30 p.m., he was proceeding in his Santro car bearing No.KA-05-Z-1623 along with his wife, son and his wife's maternal uncle M.S. Ramesh Rao from Bangalore towards Tumkur, when they were reached near Sondekoppa Circle, opposite Sapthapadi Kalyana Mantapa, on NH-4 Express High way road, Nelamangala, Bangalore about 20 to 25 kms., away from Bangalore, the driver of the Skoda car bearing No.KA-06-N-4177 has driven the same in a rash and negligent manner, without observing the traffic rules and regulations and crushed on to the road median, jumped the median and dashed the Santro car, as a result himself, his wife, son and his wife's maternal uncle were sustained grievous injuries. So, they were immediately shifted to M.S. Ramaiah Harsha Hospital, Nelamangala, wherein they took the first aid treatment, later on he was shifted to BGS Global Hospital, Kengeri, wherein he took the treatment as an inpatient by spending huge amount. The accident in question was taken place on the rash and negligent driving of the offending vehicle driver. Thereby, the Nelamangala Town Police have registered the case against the offending vehicle driver in their police station Crime No.20/2013 for the offences punishable u/s 279, 337 and 304(A) of IPC. The PW1 in his cross examination has denied that as on the date of the alleged accident, he was driving the car very high speed with a negligent manner, though he has seen the car 8 (SCCH-8) M.V.C.No.2990/2013 which was coming from opposite direction has not reduced the speed, that is the reason why the accident was taken place and he has also denied that there is a chance to avoid the accident, but he has not taken minimum care to avoid the accident without reducing the speed while driving the Santro car and the accident was taken place on his own negligence.
11. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P25. Ex.P2 is the information filed by one Raghu, son of Jabbir in which he has stated that on 20-01-2013 he was on duty at Navayuga toll gate, one Santro car was came from Bangalore towards Tumkur and the driver of the Skoda car was came from opposite direction with high speed, in a rash and negligent manner and dashed against the Santro car, as a result the inmates of the car were sustained grievous injuries. So, they were shifted to nearby hospital through ambulance, the accident in question was taken place on the negligence of the Skoda car driver and one Ramesh Rao was succumbed due to the accidental injuries in the hospital. So based on the information the Nelamangala Town Police have registered the case against the offending vehicle driver in their police station Crime No.20/2013 for the offences punishable u/s 279, 337 and 304(A) of IPC. The learned counsel for the respondent No.1 while cross examination of the PW1 has suggested that he has seen the 9 (SCCH-8) M.V.C.No.2990/2013 opposite vehicle, but he has not control the speed, as a result of his own negligence the accident was occurred for which he has denied the same. If at all the accident was taken place on the rash and negligent driving of the petitioner nothing is prevented to the respondents to lodge the complaint against the petitioner nor challenge the complaint or charge sheet filed against the respondent No.3, but the reasons best known to the respondents have not filed any complaint nor challenged the charge sheet filed against the offending vehicle driver. In the absence of the materials on record, it is clear that the Ex.P1 and Ex.P2 are remained unchallenged. Ex.P3 and Ex.P4 are the panchanama and sketch are clearly reflects about the rash and negligent driving of the offending vehicle driver. If at all the accident was not taken place on the rash and negligent driving of the offending vehicle driver, the respondent No.1 would have examined the driver of the offending vehicle to show that the accident in question was not taken place on his negligence, it was taken place on the negligence of the petitioner, but inspite of notice the respondent Nos.2 and 3 did not appear nor placed any materials to show that the accident in question was not taken place on the rash and negligent driving of the offending vehicle driver, even the respondent No.1 being the insurer has not taken any steps to examine the offending vehicle driver, that itself goes to show that 10 (SCCH-8) M.V.C.No.2990/2013 the accident in question was taken place on the rash and negligent driving of the offending vehicle driver. Ex.P9 and Ex.P12 are clearly reflects that the petitioner has sustained the grievous injuries in a road traffic accident and took the treatment as an inpatient. Ex.P13 to Ex.P25 are clearly reflects that the petitioner has took the treatment as an inpatient in connection of the injuries sustained in a road traffic accident said to have been taken place on 20-01-2013. So, the documents marked as Ex.P1 to Ex.P25 are coupled with the oral evidence of PW1 and moreover the respondent No.1 has not lead any rebuttal evidence to disprove the oral and documentary evidence of the petitioner. On the other hand the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the offending vehicle driver. Hence, I answer this issue in the affirmative.
12. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that he was proceeding in a Santro car along with his wife, son and his wife's maternal uncle, the driver of the Skoda car has driven the same in a rash and negligent manner and dashed against his Santro car, as a result he has sustained the following injuries;
1) Pelvic bone fracture.
2) Displacement and fracture of right patella.
11 (SCCH-8) M.V.C.No.2990/2013
3) Fracture of right femur.
4) Fracture of right tibia.
5) Fracture of left patella and urinary bladder had ruptured badly.
13. Thereby, he was shifted to M.S. Ramaiah Harsha Hospital, wherein he took the first aid treatment later on he was shifted to BGS Global Hospital, Kengeri, wherein he took the treatment as an inpatient. So, he was undergone five different operations on various days with external fixation for the pelvic fracture and implantation on his both legs, as bladder reconstruction by way of laparotomy on 22-01-2013, operation of right femur, right tibia, right patella on 28-01-2013 with implantation along with left patella with implantation in all the operations, implantation to the pelvic bones by major operation and also external fixation on 11-02-2013, wound debridement of spine and pelvic was done under general Anastasia on 22-02-2013, wound debridement and closures of spine and pelvic wound under general Anastasia on 23-02-2013 and external fixation done to unite the pelvic bones were removed under general Anastasia on 02-03-2013. So during the course of above operations he was given about 28 bottles of blood, as a result of such transformation he was prone to infections. So, the operation wounds developed infection, as a result he has to undergo further operations and 12 (SCCH-8) M.V.C.No.2990/2013 undergo the process of debridement for the operated wounds and he was took the treatment as an inpatient from 20-01-2013 to 18- 03-2013 and discharged on 18-03-2013 in an immobile state with an advice of regular follow up treatment. So, he was totally immobilized and not in a position to even attend his day to day activities on his own and he has depend the other person for all his works. After the discharge the doctor has advised for regular checkup and again he was admitted to the hospital on 25-06-2013 to 28-06-2013 as infection had developed in his left patella. So operation was conducted for implant removal and wound debridement and he was discharged from the hospital. Again he was admitted to the hospital on 25-08-2013 and took the treatment till 30-08-2013 as his left patella needed another surgical intervention. In the month of September 2013, he has sustained a severe pain in the back, on diagnosis it was found his pelvic portion has been badly infected, due to the loosening of the implants. So once again he has admitted to the hospital on 22-09- 2013 and took the treatment till 30-09-2013 for surgical intervention of his infected pelvic region. So operation was conducted infected regions were irrigated and the heavy and huge implants were removed even though the uniting of bones were not complete. So as per the advise of the doctor again he got admitted to the hospital once again for removal of all the implantation made 13 (SCCH-8) M.V.C.No.2990/2013 earlier to his right femur, tibia and patella as infections had developed in the said regions, where the implantations were made. So, he got admitted to the hospital on 31-01-2014 and undergone the major operation on 01-02-2014. So all the implantations were removed as a result of infections, even though the bones had not united completely. Due to non union of the bones on his right leg and being forced to be dependant an supporting aid. So due to the accidental injuries, he could not live his normal life, even though he has undergone the physiotherapy sessions for rehabilitation regularly from April 2013, even after the surgeries, he has suffering additional pain of the surgeries undergone and also implantation which has crippled him. So, he has also incurred loss of the future prospects and he was incurred huge amount for his treatment, hospital charges, medicines, attendant charges, travels expenses, including the ambulance, taxi, as he has engage an attendant as he has no choice due to the injury to his wife in the said accident. So, he has lost the family life, marital enjoyment and all other enjoyment in his life and his life became miserable and permanently disabled due to the accidental injuries and he has taken the loan from his friends and banks. So, he put into deep depression and suffers more and he has permanently disabled.
14. Prior to the accident he was hale and healthy working as a Principal Consultant in M/s. Bigtech Consulting Services Pvt. 14 (SCCH-8) M.V.C.No.2990/2013 Ltd., and was drawing a monthly salary of Rs.1,33,000/-, due to the accidental injuries he was not in a position to attend his work and the company had employed him paid the salary up to July 2013 and thereafter stopped paying the salary, as he could not report to the work, as he was not in a position to work as earlier. The nature of the job he was doing involved continuous traveling, visiting the sites of the client, analyzing the need of the clients on the site and there after implement the same at the site. So, he has lost future prospects and unable to move without the help of wheel chair or other aids. The PW1 in his cross examination has admitted that he has received the amount which was spent by him under the Mediclaim policy and he has not produced any documents to show how much of amount has been received under the Mediclaim policy and he has denied that he has not reducing the infection because of that reason frequently admitting the hospital and he has not appointed the 2 persons to look out him in the house and he has denied that he has not sustained any financial loss due to the accidental injuries and he has no any physical problems and he has admitted still he is employee of the company, but the company has not paying the salary, since he has not attend the duties and there is no facility in the company for work from home and he was working as a principal consultant in the company, now he is not working in the company due to the 15 (SCCH-8) M.V.C.No.2990/2013 accidental injuries and he has denied that he can work in the software company, as he has not sustained any disability and he has admitted that he has received an amount of Rs.5,50,000/- under the Mediclaim policy.
15. The PW2 being the Senior Consultant Orthopaedic Surgeon at BGS Global Hospital, in his evidence has stated that the petitioner has met with an accident said to have been taken place on 20-01-2013 and admitted to their hospital and found that he has sustained the following injuries;
1) Vertically and rotationally unstable pelvic fracture (Tiles Type C1-2).
2) Undisplaced inferior pole right patella.
3) Fracture shaft of right femur.
4) Schatzker Type 1 right tibial condyle fracture.
5) Transverse fracture or left patella.
6) Extra peritoneal bladder injury.
16. So, the above said injuries are grievous in nature. Thus, he was admitted as an inpatient in ICU on 20-01-2013 and on 22- 07-2013 the petitioner underwent emergency exploratory laparotomy and open SPC, retroperitoneal drain insertion. On 28- 01-2013 CRIF IMIL Nail done for right femur, CRIF cannulated screw for right tibial condyle, ORIF with TBW for right patella was done under General Anesthesia. On 11-02-2013 ORIF pelvis 16 (SCCH-8) M.V.C.No.2990/2013 fixation with trans iliac tension band plating and anterior external fixation under General Anesthesia. On 20-02-2013 wound debridement of spine wound and on 23-02-2013 wound debridement and closure of spine and pelvis. On 02-03-2013 external fixator removal was done. So again he was admitted on 25-06-2013 and operated on the same day for removal of infected TBW left knee. He was discharged on 28-06-2013. Again he was admitted to the hospital on 25-08-2013 and discharged on 30-08- 2013. On 22-09-2013 has been admitted for removal of infected implant of spine and he was discharged on 30-09-2013 and again he was admitted to the hospital on 31-01-2014 for removal of implant from right femur and right tibia on 01-02-2014 and he was discharged on 05-02-2014. These surgeries were performed by the team of Orthopaedician, Plastic Surgeon, Urologist and Gastroenterologist. The petitioner has attended the OPD regularly for follow up treatment. Recently on 18-08-2014 he has examined the petitioner for assessment of disability and found the following difficulties of the petitioner.
1) He has pain in both SI joint, right hip, lower back and thigh extending to knee.
2) He has stiffness of both knees and pain associated with limp.
17 (SCCH-8) M.V.C.No.2990/2013
3) He has difficulty in sitting, squatting, walking and while climbing the stairs, standing on both legs, standing on affected leg, kneeling down.
4) He is not in a position to sit and travel for more than half an hour and also lost his gait.
17. On examination he has found the left lower limb, hip and knee movement restricted. So, the petitioner is able to walk only with support, union of femur, tibia and patella fracture, with malunited sacral fracture and pubic symphysis malaligned, with secondary osteoarthritis of left knee and sacro-iliac joint. So, the petitioner is suffering a disability of 77.26% of lower limbs and total body disability is 25.75%. The PW2 in his cross examination has admitted that they have removed all implants and without support of the walker he cannot walk, due to the infection in the operated portion as he was undergone major operation, the pelvic joint is malunion, due to the accidental injuries sustained by him the disability has been increased, now the petitioner is walking with the assistance of the walker, there is a chances of reducing of disability and the petitioner has to undergo physiotherapy. The disability as stated in his affidavit is based on the present condition of the petitioner.
18. The PW1 being the injured in his evidence has clearly stated about the difficulties facing by him due to the accidental 18 (SCCH-8) M.V.C.No.2990/2013 injuries. The PW2 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 PW2 corroborate the evidence of the PW1. Ex.P9 is the wound certificate issued by the BGS Global Hospital clearly reflects that the petitioner has sustained the following injuries;
1) Unstable pelvic fracture.
2) Fracture right patella/fracture left patella.
3) Fracture right femur shaft/right tibial condyle fracture.
4) Extraterritorial bladder injury.
19. So, the above said injuries are grievous in nature. Ex.P12 in all five discharge summaries clearly reflects that the petitioner soon after the accident has got admitted to the BGS Global Hospital and took the treatment as an inpatient for a period of 83 days and he has undergone number of operations due to the fractures as shown in the wound certificate. Ex.P13 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 said to have been taken place on 20-01-2013. Ex.P18 to Ex.P22 are clearly reflects about the fractures sustained by the petitioner in a road traffic accident and also reflects about the treatment taken by him as an inpatient and outpatient due to the accidental injuries. So considering the injuries sustained by the 19 (SCCH-8) M.V.C.No.2990/2013 petitioner in a road traffic accident and the evidence of PW1 and PW2 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 about the difficulties facing by him due to the accidental injuries. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the injuries sustained by the petitioner and the duration of treatment and complaints and disability of the petitioner after the accident. Ex.P9 is the wound certificate clearly reflects that the petitioner has sustained the grievous injuries and Ex.P12 in all five discharge summaries clearly reflects that the petitioner has took the treatment as an inpatient for a period for 83 days i.e., 2 months 23 days. So considering the evidence of the PW1 and PW2 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.60,000/- for the above head, it will meet the ends of justice. Hence, Rs.60,000/- 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 Principal Consultant in M/s. Bigtech Consulting Services Pvt. Ltd., 20 (SCCH-8) M.V.C.No.2990/2013 and was drawing a monthly salary of Rs.1,33,000/-, due to the accidental injuries he was not in a position to attend his work and the company had employed him and paid the salary up to July 2013 and thereafter stopped paying the salary. The PW1 in his cross examination has denied that he has not sustained any financial loss due to the accidental injuries and he was not drawing monthly salary of Rs.1,33,000/- prior to the accident and he has admitted now he is the employee of the company, but he has not working in the company due to the accidental injuries and even the company is not paying the salary. The PW1 in his cross examination has admitted that the company after the accident has paid the salary till July 2013 i.e., in all 7 months salary. Though, he has stated that he was drawing a salary of Rs.1,33,000/- per month prior to the accident, but whereas the income tax returns for the year 2013-14 his gross total income of Rs.13,32,732/- and he has paid the tax of Rs.2,01,178/-. So, his annual income of Rs.13,32,732/- is taken into consideration the monthly salary comes to Rs.1,11,061/-. So his monthly income is taken into consideration as Rs.1,11,061/-. Admittedly the PW1 in his chief examination itself has admitted that the company even after the accident has paid the salary for a period of 7 months. Ex.P9 is the wound certificate clearly reflects that the petitioner has sustained the grievous injuries and Ex.P12 in all five discharge summaries 21 (SCCH-8) M.V.C.No.2990/2013 clearly reflects that the petitioner has took the treatment as an inpatient for a period for 83 days i.e., 2 months 23 days. So, he would have lost the income due to the accidental injuries said to have been taken place on 20-01-2013 for a period of 10 months and he has already received the salary for a period of 7 months, so loss of income during laid up period remaining 3 months, since he has already received the salary for 7 months. So three months income comes to Rs.3,33,183/-. So Rs.3,33,183/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained the injuries in a road traffic accident and took the treatment as an inpatient by spending huge amount of Rs.18,00,000/-, but on record the petitioner has produced the medical bills worth of Rs.25,43,677/-. But some of the bills produced by him are not relating to the petitioner, so if the said amount has been deducted the medical bills relating to the petitioner comes to Rs.25,21,832/- only. The PW1 in his cross examination has admitted that he has received an amount of Rs.5,50,000/- under the Mediclaim policy. The learned counsel for the petitioner while canvassing his arguments has drawn the court attention on the decision reported in ILR 2008 KAR 3277 in 22 (SCCH-8) M.V.C.No.2990/2013 between Shaheed Ahmed vs. Shankaranarayana Bhat and another. On careful perusal of the above said decision, in the said decision the Tribunal has deducted the amount which was received by the claimant under the Mediclaim policy. So, the claimant has challenged the Award passed by the Tribunal before the Hon'ble High Court and the Hon'ble High Court has held that the Mediclaim policy/life insurance policy which was received by the LR's or injured cannot be deducted under the head of medical expenses. The learned counsel for the petitioner has drawn the court attention on the decision reported in 1999 para (1) SCC 90 in between Helen C. Rebello (Mrs.) and others vs. Maharashtra State Road Transport Corporation and another. On careful perusal of the above said decision, in the said decision the LR's were filed the claim petition and the Hon'ble Supreme Court held that the life insurance amount which was received by the LR's of the deceased not deductible. The learned counsel for the respondent No.1 in his arguments has submitted that the decision relied by the learned counsel for the petitioner reported in 1999 Para (1) SCC 90 is not applicable to the case on hand, since in the said decision the LR's were received the amount of life insurance which was insured by the deceased and the decision relied by the learned counsel for the petitioner which was reported in ILR 2008 KAR 3277 is also not applicable to the case on hand and the said 23 (SCCH-8) M.V.C.No.2990/2013 counsel has drawn the court attention on the decision reported in 2013(1) Kar. L.J. 624 (DB) in between New India Assurance Company Limited, Bangalore vs. Manish Gupta and another reads like thus;
MOTOR VEHICLES ACT, 1988, Sections 166(1)(a) and 168 - Medical expenses of injured - claim for compensation in respect of - Where claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under said policy, his claim for reimbursement of same expenses once again by way of compensation under the Motor Vehicles Act, held, is not maintainable - However, if amount of medical expenses reimbursed to claimant under medical insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under head "Medical expenses"
he is entitled to differential amount as compensation. On careful perusal of the above said decision, in the said decision the insurance company has challenged the award passed by the Tribunal, as the Tribunal awarded the compensation under the head of medical expenses incurred by the claimant, though the medical treatment of the claimant has been reimbursed under the Mediclaim policy, thereby their lordship held that claim for compenstion where the claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under the said policy his claim for reimbursement of same expenses once
24 (SCCH-8) M.V.C.No.2990/2013 again by way of compensation under the Motor Vehicles Act is not maintainable, however if an amount of medical expenses reimbursed to claimant under Mediclaim insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under the head of medical expenses he is entitled to different amount as compensation. In the instant case the PW1 being the injured in his evidence has categorically admitted that he has received an amount of Rs.5,50,000/- under the Mediclaim policy. So by virtue of the above said decision that amount has to be deducted out of the medical bills as per the decision as stated above, the petitioner is entitled an amount of (Rs.5,50,000 - Rs.25,21,832 = 19,71,832) Rs.19,71,832/-. Therefore, Rs.19,71,832/- is granted for the above head.
d) Loss of future earning:
The PW1 in his evidence has clearly stated that he has sustained grievous injuries in a road traffic accident said to have been taken place on 20-01-2013 and he took the treatment as an inpatient for a period of 83 days. The PW2 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 pain in both SI joint, right hip, lower back and thigh extending to knee and he has stiffness of both
25 (SCCH-8) M.V.C.No.2990/2013 knees and pain associated with limp and he has difficulty in sitting, squatting, walking and while climbing the stairs, standing on both legs, standing on affected leg, kneeling down and he is not in a position to sit and travel for more than half an hour and also lost his gain. As the PW1 in his evidence has clearly stated that prior to the accident he was working as a Principal Consultant in M/s. Bigtech Consulting Services Pvt. Ltd., and his nature of work has to travel from one place to another place, visiting the sites of the client, analyzing the need of the clients on the site and there after implement the same at the site. The PW2 being the Orthopaedic Surgeon in his evidence has stated that the petitioner is not in a position to travel because of the injuries sustained by him in a road traffic accident, that is the reason why, he has stated in his evidence that the petitioner has sustained the disability to an extent of 77.26% of lower limbs and total body disability is 25.75%, but in his cross examination has admitted that the fracture is united, but the pelvic joint is united as malunion and the petitioner is walking with the assistance of the walker and there is a chances of reducing of disability. So considering the admission of the PW2 and the evidence of the PW1 and the materials on record 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 20% of the whole body 26 (SCCH-8) M.V.C.No.2990/2013 instead of 25.75%, it will meet the ends of justice, as the PW2 being the Orthopaedic Surgeon has categorically admitted that the petitioner is walking with the assistance of the walker and there is a chances of reducing of disability in future.
The PW3 being one of the Director of the M/s. Bigtec Consulting Services Pvt. Ltd., in his evidence has stated that the petitioner was working in their company by getting monthly income of Rs.1,33,000/-. The PW3 in his cross examination has admitted that the petitioner is not working in their company due to the accidental injuries. So one thing is clear that the petitioner is not working in the company, where he was working prior to the accident. So, his income is already considered as Rs.1,11,061/- per month. Ex.P25 is the driving licence in which the petitioners date of birth shown as 05-04-1971. If the date of birth is taken into consideration as on the date of the alleged accident his age was 42 years. Therefore, his age is taken into consideration as 42 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., in 2009 ACJ 1298 the multiplier applicable is 14. So the loss of future earning is works out as under;
Rs.1,11,061X12X14X20/100=37,31,650/-.
Hence, the petitioner is entitled for Rs.37,31,650/- for the above head.
27 (SCCH-8) M.V.C.No.2990/2013
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 injuries in a road traffic accident said to have been taken place on 20-01-2013 and took the treatment as an inpatient for a period of 83 days and he has also took the treatment as an outpatient. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident and he has stated that the petitioner was undergone the operations, because of the accidental injuries he could not walk without any assistance and the petitioner is walking with the assistance of walker and there is a chances of reducing of disability. So considering the evidence of PW1 and PW2 and the duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.40,000/- for the above head, it will meet the ends of justice. So Rs.40,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being injured in his evidence has clearly stated that he has sustained grievous injuries and undergone surgeries. The PW2 being the Orthopaedic Surgeon in his evidence has stated
28 (SCCH-8) M.V.C.No.2990/2013 that the petitioner has required in the later stage total knee replacement for the left knee arthritis and arthrodesis of SI joint costing Rs.3,00,000/-. So considering the injuries sustained by him in a road traffic accident and the evidence of the PW1 and PW2, it is just and necessary to grant Rs.25,000/- for the above head, it will meet the ends of justice. So Rs.25,000/- is granted for the above head.
20. Thus the total award stands as follows:
1.Pain and suffering Rs. 60,000-00
2.Loss of income during laid up Rs. 3,33,183-00 period
3.Medical bills Rs. 19,71,832-00
4.Loss of future earning Rs. 37,31,650-00
5.Loss of amenities, conveyance, Rs. 40,000-00 food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 25,000-00 Total Rs. 61,61,665-00
21. The respondent No.1 being the insurer in its written statement has admitted about the issuance of the policy infavour of the second respondent in respect of the offending vehicle. The petitioner has produced xerox copy of the policy clearly reflects that the period of policy from 10.9.2012 to 9.9.2013. The accident was occurred on 20.1.2013. So, as on the date of alleged accident the policy was in existence. Though the respondent No.1 has disputed about the driving licence of the offending vehicle driver, but the reasons best known to the respondent No.1 has not placed 29 (SCCH-8) M.V.C.No.2990/2013 any materials to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and moreover Ex.P7 is the charge sheet filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all the offending vehicle driver 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, that itself is clear that as on the date of the alleged accident the offending vehicle driver was holding valid and effective driving licence. Therefore this Court drawn its attention on the decision reported in 2011 ACJ 209 in between National Insurance Co. Ltd., vs. Tahira Begum and others reads like thus;
Motor Vehicles Act, 1988, section 149(2)(a)(ii) - Motor insurance - Driving licence - Burden of proof - Liability of insurance company - Insurance company disputed its liability on the ground that driver of the offending vehicle was not holding a valid driving licence at the time of accident - Insurance company led no evidence to establish its contention - Whether the 30 (SCCH-8) M.V.C.No.2990/2013 burden of proof was on the insurance company and it has not discharged its burden by leading cogent evidence - Held: yes; insurance company is liable.
22. On careful perusal of the said decision, in the said decision the insurance company has challenged the Award passed by the Tribunal on the ground that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence. But the insurance company has not placed any materials nor cogent evidence to substantiate its defence. Thereby, the appeal filed by the insurance company was came to be dismissed.
23. In the instant case also though the respondent No.1 has taken up the defence that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence, but nothing is placed on record nor led any cogent evidence to substantiate its defence. Therefore, the decision as stated above is directly applicable to the case on hand. 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 & 2 being the owner and the insurer of the offending vehicle are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the 31 (SCCH-8) M.V.C.No.2990/2013 compensation to the petitioners with interest at the rate of 6% p.a. from the date of petition till its realization and the petition against the respondent No.3 is deserves to be dismissed. In the result, the issue No.2 is answered as partly affirmative.
24. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed by the petitioner under section 166 of M.V. Act as against the respondent No.3 being the driver of the offending vehicle is hereby dismissed.
The petition filed by the petitioner under section 166 of M.V. Act as against the respondent Nos. 1 & 2 is partly allowed, with costs. The petitioner is entitled for compensation of Rs.61,61,665/- together with interest at the rate of 6% p.a. from the date of the claim petition till its realisation.
The respondent Nos.1 & 2 are jointly and severally liable to pay the compensation. In view of the valid insurance policy the respondent No.1 being the insurer shall pay the compensation amount with interest at the rate of 6% p.a. from the date of the claim petition till its realisation within a period of 30 days from the date of this order.
32 (SCCH-8) M.V.C.No.2990/2013 On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of his choice for a period of three years and the remaining 60% shall be released to him by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on his deposit amount from time to time.
The expenses to be incurred for future medication shall not carry any interest.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 06th day of January 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Sri Pritam B. Mittadar PW2 Dr. Raju K.P. PW3 Sri B. Ravish Chandra
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of FIR Ex.P2 True copy of Complaint 33 (SCCH-8) M.V.C.No.2990/2013 Ex.P3 True copy of Mahazar Ex.P4 True copy of Sketch Ex.P5 True copy of Statement Ex.P6 True copy of IMV Report Ex.P7 True copy of Charge Sheet Ex.P8 Referral letter Ex.P9 to True copy of Wound Certificates Ex.P11 Ex.P12 5 Discharge summaries Ex.P13 Rehabilitation bills Ex.P14 Outpatient and travel bills Ex.P15 Inpatient bills Ex.P16 Medical bills Ex.P17 File relating to Salary certificates, income tax
returns, house loan and personal loan documents and 11 photos Ex.P18 to Inpatient records 3 in nos Ex.P20 Ex.P21 Outpatient records Ex.P22 52 X-ray films Ex.P23 12 CT Scan films Ex.P24 Authorization letter Ex.P25 Notarised true copy of Driving licence List of the witnesses examined on behalf of respondents:
None List of the documents marked on behalf of respondents:
Nil (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.