Bangalore District Court
Sri. Ravikumar vs Sri. Mohammed Basha on 30 July, 2018
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this the 30th Day of July 2018
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C. NO. 4696/2016
PETITIONER:
Sri. Ravikumar.,
Aged about 25 years,
S/o Govindaraju,
Native of Aladahalli,
Dabbeghatta Hobli,
Turuvekere Taluk,
Tumkur District,
Now R/o.C/o.
Narasimhamurthy House,
Ganapathinagar,Banglaore.
(By Sri. K.Nisar Ahamed., Adv.)
-VS-
RESPONDENTS:
1. Sri. Mohammed Basha.,
S/o Syed Miya .,
Aged about 45 years,
R/o. No.84, 3rd Cross, Kouser Nagar,
R.T.Nagar, Bangalore-560010.
(The RC Owner of Canter AP-03-W-7459)
2 M.V.C.No.4696/2016
SCCH-7
2. The National Insurance Company Ltd.,
Motor T.P. Claims, No.9/2, 2nd Floor,
Mahalakshmi Chambers, M.G.Road,
Bangalore-560001.
(Policy No. 551003421510000273)
Valid from 13.08.2015 to 12.08.2016)
(R1 By.Sri. K.Aswathnarayana.Adv.,)
(R2 By Sri S.S.Pandit, Adv.,)
JUDGMENT
1. This petition is filed under Section 166 of I.M.V. Act.
2. The Brief facts of the petitioners' case is that: On 13.02.2016 at about 3-00 a.m., was the disastrous day on the part of Petitioner and last day journey on the part of the deceased Manjunath.A.N on that particular day he was traveling towards Yediyur, side from Banglaore side as a pillion rider in Hero Honda Passion bearing registration No. KA-02-HW-3713 ridden by its rider A.N Manjunatha towards Yadiyur side in order to go to his native village Aladahalli to Turuvekere Taluk side, while so traveling near Herur Village on the left side of NH-75 Bypass road, one canter vehicle bearing registration No.AP-03-W- 7459 was parked on the middle of the NH-75 by pass road, Kunigal taluk, Tumkur District NH-75, facing towards Yadiyur side without any indication or parking light. Hence the rider of the motor cycle A.N.Manjunath was unable to trace out the parked vehicle in the middle of NH-75 bypass road because the vehicles were always moving towards Bangalore side from Yadiyur side with heavy bright 3 M.V.C.No.4696/2016 SCCH-7 lights from opposite side direction. Petitioner stated that the rider of the Hero Honda passion A.N. Manjunath dashed the Motor Cycle to the back side of the Canter which was parked in the middle of road without indicator/signal due to this the accident was occurred and Manjunath A.N sustained fatal injuries and succumbed on the spot and the Petitioner who was pillion rider of the motor bike sustained grievous injuries as mentioned in the wound certificate issued by M.S. Ramaiah Hospital, Bangalore. Petitioner stated that soon after the accident, Hemanth Kumar who was also travelling towards Yadiyur side in another Motor Bike along with another person has shifted him to Government, Hospital, Kunigal in 108 Ambulance, wherein first aid was given, thereafter he was shifted to A.C Giri Hospital, B.G. Nagar in another the vehicle by paying Rupees 2,000/- and thereafter as per the advice of Doctor at A.C, Giri Hospital he was shifted to Nimhans Hospital. Petitioner stated that he was shifted to Nimhans Hospital, Bangalore in another hired vehicle by paying Rupees 4000/- and then he was shifted to M.S.Ramaiah Hospital, Bangalore and admitted as an inpatient from 13.02.2016 to 01.03.2016. The petitioner stated that, Doctors at M.S.Ramaiah Hsoptial, Bangalore examined him and confirmed that, he sustained right Lefort III and left Lefort-II and symphysis fracture of mandible. Petitioner stated that he was subjected for surgery, ORIF done under G.A on 15.02.2016, he was kept in MICU for observation. The petitioner stated that, ORIF under GA was done, 2 mm plates placed with B/L FZ region B/L buttress and B/L infraorbital region and 2.5 mm plates placed on symphysis and other injuries were also dressed and treated with 4 M.V.C.No.4696/2016 SCCH-7 proper medicines and he was discharged on 01.03.2016 with advise to continue the medicines prescribed with soft diet orally and also with other advises to take follow up treatment and also with further advises to attend for review on 08.03.2016. Petitioner stated that as per advise of Doctors he took follow up treatment and till today he is under follow up treatment. Petitioner stated that during his hospitalization he was looked after by 2 attendants and he spent more than Rupees 600/- day for attendants expenses and also he has spent more than Rupees 2,50,000/- for over all expenses. Petitioner stated that the before sustaining of injuries in this accident he has maintained good health and his age was about 25 years. The petitioner stated that, he was doing work as cashier at Siddartha Sprit Zone, Ejipura, Koramangala, Bangalore and earning salary of Rupees 10,000/- month with daily Bata of Rupees 200/- and have been leading his livelihood. After this accident he is not been attending his previous work and cannot concentrate on anything, he is always suffering with headache, he cannot bite and chew any hard and even semi hard foods. He is suffering with permanent deformity and disablement. Hence he is suffering with both physical and mental pain and agony. Petitioner stated that till today he is under continuous follow up treatment by spending more and more medicinal expenses. Petitioner stated that this accident is purely due to rash and negligent parking of canter bearing registration No.AP-03-W-7459 by its driver in the middle of NH-75 Bypass road, near Herur village, Kunigal Taluk, Tumkur District without putting parking lights, signals or any indicator. Petitioners stated that Kunigal Police registered a Crime 5 M.V.C.No.4696/2016 SCCH-7 against the driver of the said vehicle in Crime No.38/2016 for the offences punishable under section 279, 337 and 304(A) of IPC. Petitioners stated that offending vehicle had insurance policy with 2nd Respondent and policy was in force as on the date of accident. Hence the Respondent No.1 and 2 are jointly and severally liable to pay compensation to him. Under these circumstances, the Petitioners prayed to allow the petition.
3. In pursuance of service of Notice, Respondents No.1 and 2 appeared before the court through their Counsel and filed separate objection statements.
4. In the objection statement the Respondent No.1 stated that the petition is not maintainable either in law or on facts. Respondent No.1 stated that at the time of accident the RC of the Canter bearing registration No.AP-03-W-7459 stands in his name. The Respondent No.2- National Insurance Company Ltd., is the insurer of the said vehicle and the policy was in force from 13.08.2015 to 12.08.2016. As on the date of accident, the driver was having valid Driving Licence, hence he is not liable to pay compensation to the Petitioner. Further Respondent No.1 denied the alleged injuries sustained by the Petitioner, treatment taken by him, period of treatment and medical expenses. The Respondent No.1 denied the entire case of petitioner and prayed to dismiss the petition.
4. In the objection statement the Respondent No.2 stated that the petition is not maintainable either in law or on facts. The Respondent 6 M.V.C.No.4696/2016 SCCH-7 No.2 admits the issuance of the policy in favour of first Respondent for the Canter registration bearing registration No.AP-03-W-7459 strictly subject to the terms and conditions. The Respondent No.2 contended that, admission of the policy does not confirm any rights to either parties to make a claim until and unless occurrence of the accident, involvement of the vehicle and validity of the vehicular documents including driving license of the accused are proved beyond reasonable doubt and with documentary proof of evidence. As first Respondent/ insured has violated the mandatory terms and conditions of the policy by not intimating the involvement of the vehicle in the alleged accident in question and registration of Criminal case against the insured vehicle, the question of coverage of risk and liability of the offending/ insured vehicle by indemnifying the Respondent does not arise at all, hence liability is not admitted. Respondent No.2 stated that neither the first Respondent/ owner of the vehicle Canter registration bearing registration No. AP-03-W-7459 mentioned in the petition intimated about the occurrence of the accident to this Respondent nor the jurisdictional Police authorities have intimated this Respondent about the occurrence of the accident as per MV Act under Section 158(6). The stature made it mandatory to provide the accident details to the insurer u/s 158 (6) and 134 (c) of Motor Vehicle Act if at all any policy was in existence at the time of the alleged accident. Lapse on these aspects attracts the dismissal of the Petition against this Respondent as per the ruling of the Supreme Court in its judgment in AIR SCW 4873/2007 between General Insurance Council and others v/s State of Andhra Pradesh and 7 M.V.C.No.4696/2016 SCCH-7 others. Further Respondent No.2 denied the age, avocation and income of petitioner and alleged injuries sustained by the Petitioner, treatment taken by him, period of treatment and medical expenses. The owner of vehicle needs to prove that there is no violation of terms and conditions of the policy if policy was issued and was in force as on the date of alleged accident. Respondent No.2 seeks permission to take defence available under Section 170 of MV Act and Section 149 (2) of IMV Act. Under the circumstances the Respondent No.2 prayed to dismiss the petition.
5. On the basis of the above pleadings, my predecessor-in-office have framed the following:
[ ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent act of the Canter Vehicle bearing registration No.AP-03-W-7459, by its driver and in the said accident he sustained injuries?
2. Whether the Petitioner is entitled for compensation?
If so, how much and from whom?
3. What Order?
6. In order to prove the case, the Petitioner got examined himself as P.W.1 and got marked 19 documents as per Ex.P1 to P19. Dr. Vineeth Kumar got examined as P.W.2 and got marked 3 documents as per Ex.P20 to Ex.P22. Dr. Girish Nelivigi got examined as P.W.3 and got marked 2 documents as per Ex.P.23 and Ex.P.24. The counsel for Respondent No.2 adopted the evidence of Respondent 8 M.V.C.No.4696/2016 SCCH-7 No.2 in M.V.C.No.2170/2016 and the Respondent No.1 has not adduced evidence.
7. Heard the arguments.
8. My findings on the above said issues are as under:
Issue No. 1: In the Affirmative.
Issue No. 2: Partly in the Affirmative.
Issue No. 3: As per final order
for the following:
REASONS
9. Issue No. 1 : P.W.1 deposed that, on 13.02.2016 at about 3- 00 a.m., he was proceeding as a pillion rider in a Motor Cycle bearing registration No.KA-02-HW-3713 along with Manjunath A.n., towards Yediyur, Kunigal Taluk, Tumkur District side in order to go to his native place Aladahalli. P.W.1 stated that when they reached near Herur Village on NH-75 Bypass road, the driver of Canter vehicle bearing registration No.AP-03-W-7459 was parked the said vehicle in the middle of the NH-75 road negligently without any indicator or parking signal, as such the rider of Motor Cycle unable to trace out parked vehicle in the middle of NH-75 bypass road and dashed to the back side of the Canter. P.W.1 stated that, due to impact, the rider Manjunath A.N., died on the spot and he sustained head injury and CT scan brain showed right temporal contusion, pan facial fracture, symphysis mandible, B/L maxillary sinus, B/L pterigoined plates, medical wall orbit, B/L zygomatic arch, B/L greater wings of sphenoid, 9 M.V.C.No.4696/2016 SCCH-7 B/L nasal bones, nasal seplum, maxillary ethnoid and sphenoid haemosinuses, CLW over upper lip and another CLW on inner aspect of lower lip. P.W.1 stated that immediately after the accident Hemanth Kumar who was also traveling towards yadiyur side in another Motor Cycle with his friend shifted him to Kunigal Government Hospital in 108 Ambulance. P.W.1 stated that, then he was shifted to Sri Adhi Chunchanagiri Hospital, B.G. Nagar, thereafter he was referred to Nimhans Hospital and then he was shifted to M.S. Ramaiah Hospital, Bangalore, wherein he took treatment as an inpatient from 13.02.2016 to 01.03.2016. P.W.1 stated that, said accident occurred due to negligent act of driver of Canter vehicle bearing registration No.AP-03-W-7459. In this case Respondent No.2 Insurance Company denied involvement of vehicle bearing registration No.AP-03-W-7459 in the alleged accident dated 13.02.2016 and contended that the accident occurred due to the rash and negligent act of rider of Motor Cycle bearing registration No.KA- 02-HW-3713.
10. In order to prove his case, P.W.1 has produced Ex.P1- FIR, Ex.P2- Complaint, Ex.P3 Spot Mahazar, Ex.P.4 IMV Report, Ex.P.5 Sketch, Ex.P.6 Wound Certificate, Ex.P.7 Charge Sheet, Ex.P.8 Aadhar Card of P.W.1 and Ex.P.10 Discharge Summary issued by M.S. Ramaiah Hospital. In the cross-examination by the counsel for Respondent No.2 P.W.1 stated that he was proceeding along with Manjunath and Manjunath was riding the Motor Cycle. P.W.1 stated that Manjunath had Driving Licence to ride Motor Cycle and he was the owner of said Motor Cycle. P.W.1 stated that Manjunath was 10 M.V.C.No.4696/2016 SCCH-7 riding the Motor Cycle at about 30 - 40 k.m. per hour. P.W.1 denied the suggestion that the Canter was not parked in the middle of the road and it was parked by the side of road with proper indicator. P.W.1 denied the suggestion that without observing vehicle which was parked on the left side of road, A.N. Manjunath himself dashed the Motor Cycle to the hind portion of Canter and he is responsible for the said accident. When the counsel for Respondent No.2 suggested to P.W.1 that as per Ex.P.5 the Canter was parked about 3 feet distance from the left side edge of road, P.W.1 stated that he does not know. P.W.1 denied the suggestion that the accident occurred due to sole negligence of A.N. Manjunath.
11. In this case the counsel for Respondent No.2 filed Memo stating that the Respondent No.2 adopt the evidence of administrative officer of Insurance Company which has been recorded in MVC 2170/2016. In MVC 2170/2016 the Administrative Office of Insurance Company got examined as RW.1. She deposed that as per complaint and Charge Sheet deceased Manjunath was riding the Motor Cycle without observing traffic on the road during the early hours of morning and alleged consequence due to sleepless long driving from Bangalore during night time the accident occurred due to negligence of deceased himself. Further RW.1 stated that as per Spot Mahazar and Sketch the width of road is 28 feet and from right side Tyre of the Canter there is 19 feet width of road space left for movement of the traffic. RW.1 stated that there is only 3 feet distance from left side edge of the road form left side Tyre of Canter and this clearly shows 11 M.V.C.No.4696/2016 SCCH-7 that the canter is parked on the extreme left side of the road not at the centre of the road as alleged and the spot sketch and mahazar shows the negligence of the deceased rider is the root cause of the consequences and there is no negligence of the driver of the Canter who parked the Lorry on extreme left side not at middle of the road. In MVC 2170/2016 RW.1 has produced Ex.R.1 Certified copy of Spot Mahazar, Ex.R.2 Certified copy of Sketch, Ex.R.3 Office copy of Letter sent to Respondent No.1, Ex.R.4 Unserved copy of Letter issued to Respondent No.1, Ex.R.4(a) Postal Cover and Ex.R.5 Authorization Letter. In MVC 2170/2016 in the cross-examination by the counsel for Petitioner RW.1 admitted that she has not seen occurrence of accident. RW.1 admitted that in Ex.R.1 the Police have reported that the insured vehicle was in the middle of road. RW.1 admitted that in Ex.R.2 location of insured vehicle has been shown in the middle of the road. RW.1 admitted that in Ex.R.1 and Ex.R.2 it is not stated that the vehicle is stationed with parking indication. RW.1 admitted that Investigating Officer filed Charge Sheet against the driver of Lorry bearing registration No.AP-03-W-7459.
12. In this case on going through Ex.P.1 and Ex.P.2 it is noticed that Hemanth Kumar has lodged complaint on 13.02.2016 and based on his complaint the Kunigal Police have registered crime No.38/2016 against the driver of Canter vehicle bearing registration No.AP-03-W- 7459 for the offences punishable under Sections 279, 337 and 304 (A) of IPC. Further Ex.P.3 Spot Mahazar and Ex.P.5 Sketch reveal that the accident occurred on N.H.75 Bypass Road near Heruru Village, Kasaba Hobli, Kunigal Taluk. As per Ex.P.5 Spot Sketch it is 12 M.V.C.No.4696/2016 SCCH-7 clear that the Canter bearing registration No.AP-03-W-7459 was parked in the middle of the left side road which is leading from Bangalore towards Yadiyur and in Ex.P.5 it has been specifically stated that the left side rear Tyre of Canter is punctured. Ex.P.6 Wound Certificate reveals that the Petitioner has sustained head injury in a road traffic accident. The doctor stated that, CT scan brain showed right temporal contusion, pan facial fracture, symphysis mandible, B/L maxillary sinus, B/L pterigoined plates, medical wall orbit, B/L zygomatic arch, B/L greater wings of sphenoid, B/L nasal bones, nasal seplum, maxillary ethnoid and sphenoid haemosinuds. Further in Ex.P.6 the Doctor stated that petitioner sustained cut lacerated wound over upper lip and another cut lacerated wound on inner aspect of lower lip. Ex.P.10 Discharge Summary issued by M.S. Ramaiah Hospital reveals that in the said Hospital the Petitioner has taken treatment as an inpatient from 13.02.2016 to 01.03.2016. Further Ex.P-7 Charge Sheet reveals that, after investigation, the investigating officer of Kunigal Police Station has filed charge Sheet against Sheik Rafeeq driver of Canter bearing registration No.AP-03- W-7459 for the offences punishable under Section 279, 337, 338 and 304(A) of IPC. Only on the basis of spot mahazar and sketch, without producing substantial evidence, the court cannot accept the contention of Respondent No.2 that the driver of Canter bearing registration No.AP-03-W-7459 parked the vehicle in extreme left side of road with proper indicator and accident occurred due to negligence of Manjunath A.N. Under these circumstances, the oral evidence of P.W.1 and documentary evidence clearly establishes that, the 13 M.V.C.No.4696/2016 SCCH-7 accident occurred due to rash and negligent act of driver of Canter vehicle bearing registration No.AP-03-W-7459 and as a result Petitioner sustained injuries. For the aforesaid reasons, I have answered Issue No.1 in the Affirmative.
13. Issue No. 2: P.W.1 stated that in the accident he sustained head injury with loss of conscious, vomiting and nasal bleed. PW.1 stated that, CT scan brain showed right temporal contusion, pan facial fracture, symphysis mandible, B/L maxillary sinus, B/L pterigoined plates, medical wall orbit, B/L zygomatic arch, B/L greater wings of sphenoid, B/L nasal bones, nasal seplum, maxillary ethnoid and sphenoid haemosinuses and he sustained cut lacerated wound over upper lip and another cut lacerated wound on inner aspect of lower lip. P.W.1 stated that immediately after the accident he was shifted to Government Hospital, Kunigal and thereafter he was shifred to Sri Adhi Chunchanagiri Hospital, B.G. Nagar and then he was referred to Nimhans Hospital and then he was shifted to M.S. Ramaiah Hospital, Bangalore, wherein he was admitted as an inpatient from 13.02.2016 to 01.03.2016. P.W.1 stated that in the said Hospital he has undergone ORIF under GA, 2 mm plates placed with B/L FZ region B/L butteress and B/L infra orbital region and 2.5 mm plates placed on symphysis and other injuries were also treated with proper medicines. In this regard P.W.1 has produced Ex.P.6 Wound Certificate, Ex.P.9 Brain Scanning Report, Ex.P.10, Ex.P.11 and 13 Discharge Summaries, Ex.P.12 OT Consumable report and Ex.P.14 Lab Report. On going through Ex.P.10 it is noticed that the Petitioner took treatment as an inpatient at M.S. Ramaiah Hospital from 14 M.V.C.No.4696/2016 SCCH-7 13.02.2016 to 01.03.2016 and under gone ORIF to front zygomatic region. Under such circumstances, by considering injuries sustained by the Petitioner and treatment taken by him and hospitalization, I am of the opinion that, it is reasonable to award Rupees 60,000/- under the head of pain and suffering.
14. P.W.1 stated that, he has incurred a sum of Rupees 6,50,000/- towards medical expenses, conveyance, nourishment and attendant charges. In this case P.W.1 has produced Ex.P.14 Lab Report, Ex.P.15 Inpatient Bill of M.S. Ramaiah Hospital to the tune of Rupees 1,75,390/-, Ex.P.16 Inpatient Bill of City Hospital to the tune of Rupees 51,500/-, Ex.P.17 Advance receipts 8 in numbers, Ex.P.18 - 47 Prescriptions and 19 - 166 Medical Bills to the tune of Rupees 90,615/-. In the cross-examination by the counsel for Respondent No.2, P.W.1 denied the suggestion that he has not sustained urinary problem due to the accidental injuries. He denied the suggestion that he has not spent amount towards treatment as per the documents produced by him. In this case as already discussed the Petitioner sustained fracture to oral and maxillofacial region and he underwent surgery bone level fronto zygomatic region and he has taken treatment as an inpatient for a period of 30 days. In this case the P.W.3 deposed that the Petitioner was admitted on 18.04.2017 at City Hospital and underwent tunicavaginal's flap, urethrophy. P.W.3 has produced Ex.P.23 Case Sheet and Ex.P.24 Recent Examination Report. In the cross-examination by the counsel for Respondent No.2 P.W.3 stated that as the Petitioner sustained urinary problem and he has given treatment to the Petitioner in that regard. P.W.3 admitted 15 M.V.C.No.4696/2016 SCCH-7 that in Ex.P.13 it has been mentioned that 'history of present illness' patient is unable to pass urine since 8 months. P.W.3 admitted that in Ex.P.23 the Doctors have not mentioned for what reason the Petitioner sustained urology problem. P.W.3 admitted that as per Ex.P.10 Discharge Summary issued by M.S. Ramaiah Hospital there is no recital that the Petitioner undergone surgeries in connection to urology problem or he has sustained injuries in connection to said part of the body. However on going through Ex.P.11 Discharge Summary issued by M.S.Ramaiah Hospital, it is noticed that the Petitioner has taken treatment in the said hospital from 18.08.2016 to 23.08.2016 for Stricture urethra and Ex.P.13 Discharge Summary of City Hospital reveals that the Petitioner has taken treatment in the said hospital from 18.04.2017 to 21.04.2017, wherein in the diagnosis column the Doctors have mentioned old operated BM Urthroplasty. It is to be noted that the Petitioner sustained fracture to oral and maxillofacial region and he underwent surgery and thereafter once again the Petitioner has taken treatment at M.S.Ramaiah Hospital due to stricture urethra from 18.08.2016 to 23.08.2016 and BMG Urethroplasty done and thereafter once again the Petitioner took treatment at City Hospital from 18.04.2017 to 21.04.2017, wherein Tunica Vaginaris Urethroplasty was done on 18.04.2017. As such there is no reason to disbelieve the medical bills produced by the petitioner. Under the circumstances I am of the opinion that, it is reasonable to award Rupees 3,17,505/- under the head of medical expenses and Rupees 10,000/- under the head of special diet and Conveyance.
16 M.V.C.No.4696/2016SCCH-7
15. P.W.1 stated that, prior to the accident he was hale and healthy and aged about 24 years and he was working as Cashier at Siddartha Spirit Zone, Ejipur, Koramangala and getting gross salary of Rupees 10,000/- per month and daily Bata of Rupees 200/-. P.W.1 stated that, he was not in a position to do work and he sustained loss of income. P.W.1 stated that the Doctor has advised for bed rest with regular follow-up treatment. In this case the Petitioner has not produced any documents before the court to show his avocation and income. In the cross examination by the Respondent No.2 P.W.1 stated that he has not produced any documents to show that he was working as a Cashier in Siddartha Spirit Zone and drawing salary of Rupees 10,000/- p.m., and daily Bata of Rupees 200/-. In this case the Petitioner has not produced any documents to prove his income. It is to be noted that as per Ex.P.8 Aadhar Card as on the date of accident the age of the Petitioner was 24 years. As already discussed petitioner has not produced any documents to prove his income, such being the case, it is reasonable to consider the notional income of Petitioner as Rupees 9,000/- p.m. The Petitioner require at least 3 months period to recoup from accidental injuries and during that period he was not in a position to work and the said loss is to be compensated. Under the circumstances, it is reasonable to award compensation of Rupees 27,000/- under the head of loss of earning during treatment period.
16. P.W.1 stated that due to accidental injuries he sustained permanent disability and he is not in a position to do work, as such he sustained future loss of income. P.W.1 stated that he is suffering with 17 M.V.C.No.4696/2016 SCCH-7 pain to pass urine, headache, he cannot bite and chew any hard or even semi hard foods and now also he is suffering with pain. He sustained permanent deformity and disablement. In the cross- examination by the counsel for Respondent No.2 P.W.1 stated that he has not produced certificate issued by the Doctor to show that he is unfit to do any work. P.W.1 stated that he has not produced any documents before the Court to show that he was removed from the job. In support of his case, P.W.1 got examined Dr.Vineeth Kumar as P.W.2. He deposed that the Petitioner sustained total disability of 26% only pertaining to oral and maxillofacial region and does not include any other parts of the body. P.W.2 has produced Ex.P.20 Outpatient Case Sheet, Ex.P.21 Inpatient Case Record and Ex.P.22 C.T. Scan Films 4 in numbers. In the cross-examination by the counsel for Respondent No.2 P.W.2 stated that he has personally given treatment to the Petitioner. P.W.2 denied the suggestion that as per Discharge Summary the Petitioner has sustained fracture of mandible only. P.W.2 stated that after discharge nearly 5 to 6 times the Petitioner has taken treatment as an Outpatient at M.S. Ramaiah Dental College and Hospital. P.W.2 denied the suggestion that the Petitioner was completely recovered from the accidental injuries hence he has not taken further treatment. P.W.2 denied the suggestion that out of 26% disability of oral and maxillofacial region only 1/4th can be considered to the whole body. Further the Petitioner got examined another witness by name Dr. Girish Nelivigi as P.W.3. He deposed that the Petitioner was admitted on 18.04.2017 in the City Hospital and underwent tunicavaginal's flap, urethrophy. P.W.3 18 M.V.C.No.4696/2016 SCCH-7 stated that he recently examined the Petitioner on 22.01.2018 to assess the disability of urinary problem and the Petitioner is now passing urine with adequate force and the Petitioner has about 20% disability in terms of his ability to pass urine. P.W.3 has produced Ex.P.23 Case Sheet and Ex.P.24 Recent Examination Report. In the cross-examination by the counsel for Respondent No.2 P.W.3 stated that the Petitioner sustained urinary problem and he has given treatment to the Petitioner in that regard. P.W.3 admitted that Ex.P.13 Discharge Summary is in hand writing and in the said document his name has not been mentioned. P.W.3 admitted that in Ex.P.13 it has been mentioned that 'history of present illness' patient is unable to pass urine since 8 months. P.W.3 admitted that as per Ex.P.10 Discharge Summary issued by M.S. Ramaiah Hospital there is no recital that the Petitioner undergone surgeries in connection to urology problem or he has sustained injuries in connection to said part of the body. P.W.3 admitted that in Ex.P.13 the Doctors have not mentioned for what reason the Petitioner has sustained urology problem. P.W.3 denied the suggestion that the Petitioner not sustained urology problem due to the accidental injuries. P.W.3 admitted that to test the force of urine there is a UFR method and he has not conducted test under UFR. He denied other formal suggestion of counsel for Respondent No.2. In this case as already discussed the petitioner sustained injuries to oral and maxillofacial region. Further the Petitioner sustained urology problem and he under gone BMG Urothroplasty. It is to be noted that P.W.3 in his chief examination it self stated that at present, Petitioner passing 19 M.V.C.No.4696/2016 SCCH-7 urine with adequate force. As such the disability stated by P.W.3 cannot be taken in to consideration. As per the evidence of P.W.2 the Petitioner sustained oral and maxillofacial region and P.W.2 has assessed total disability of 26% only pertaining to oral and maxillofacial region. The injuries sustained by the Petitioner will affect his day to day life to some extent. Such being the case, by looking into the injuries sustained by the Petitioner and considering the medical records and evidence of Doctors Percentage of permanent disability to the whole body of Petitioner is taken as 8%. This Court has already considered the notional income of Petitioner as Rupees 9,000/- per month. As per Aadhar Card, the age of Petitioner was 24 years at the time of accident. For the age of 24 years, the multiplier is "18" as per the decision reported in: 2009 ACJ 1298 Sarala Varma Vs. Delhi Transport Company. So, the loss of permanent physical disability would be 9,000 x 12 x 18 x 8/100 = Rupees 1,55,520/-. For the aforesaid reasons, it is reasonable to award compensation of Rupees 1,55,520/- under the head of loss of permanent disability.
17. Hence, the petitioner is entitled for total compensation of Rupees 5,70,025/- under different heads as below.
1. For pain and sufferings, Rupees 60,000.00 mental agony.
2. Actual medical expenses Rupees 3,17,505.00
3. For Special diet and Rupees 10,000.00 Conveyance.
4. For loss of earning during Rupees 27,000.00 treatment period
5. Permanent disability Rupees 1,55,520.00 20 M.V.C.No.4696/2016 SCCH-7 Total Rupees 5,70,025.00
18. Respondent No.2 admitted the issuance of Insurance Policy to Canter bearing registration No.AP-03-W-7459. This court already came to conclusion that the accident occurred due to rash and negligent act of driver of Canter bearing registration No.AP-03-W- 7459. There is no evidence on record to prove that the owner of offending vehicle violated the terms and conditions of policy. There is no dispute that as on the date of accident the policy was in force. This Court gone through the decision laid down by the Hon'ble High Court of Karnataka in M.F.A.No.103557/2015 (MV). In the said Judgment the Hon'ble High Court of Karnataka observed that the rate of interest is to be 6% p.a., keeping in line with statutory ceiling limit. Under the circumstances, Respondent No.1 being the owner and Respondent No.2 being the insurer of offending vehicle are jointly and severally liable to pay compensation to the Petitioner with interest at the rate of 6% P.A. from the date of petition till realization. Accordingly, Issue No. 2 is answered partly in the Affirmative.
19. Issue No.3: In view of above discussions, I proceed to pass the following:
ORDER The petition filed by the Petitioner under Sec.166 of I.M.V Act is hereby partly allowed with costs.
The petitioner is entitled for total compensation of Rupees 5,70,025/- along with future interest at the rate of 6% p.a. from the date of petition till realization of entire amount.21 M.V.C.No.4696/2016
SCCH-7 The respondent No.2 being the Insurer of offending vehicle is directed to deposit compensation amount within two months from the date of award.
By considering the medical expenses incurred by the Petitioner in the compensation amount 75% is ordered to be released in favour of Petitioner by issuing an account payee cheque with proper identification and remaining 25% of the Award amount is ordered to be deposited in fixed Deposit Scheme in the name of the Petitioner in any nationalized Bank for a period for a period of three years.
The Advocate's fee is fixed at Rupees 1,000/-. Draw award accordingly.
(Dictated to the stenographer, computerized by him, corrected by me and then pronounced in the open Court on 30.07.2018).
(SUJATHA S), IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore. ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S;
P.W.1. Sri. Ravikumar
P.W.2. Dr. Vineeth Kumar
P.W.3 Dr. Girish Nelivigi
II. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONER/S:
Ex.P1 FIR
Ex.P2 Complaint
22 M.V.C.No.4696/2016
SCCH-7
Ex.P3 Spot Mahazar
Ex.P4 IMV Report
Ex.P5 Sketch
Ex.P6 Wound Certificate
Ex.P7 Charge Sheet
Ex.P8 Notarized Xerox copy of Aadhaar Card of Petitioner
Ex.P9 Brain Scanning Report
Ex.P10 Discharge Summary issued by M.S. Ramaiah Hospital Ex.P11 Discharge Summary issued by M.S. Ramaiah Hospital Ex.P12 OT Consumable Report Ex.P13 Discharge Summary issued by City Hospital Ex.P14 Lab Report Ex.P15 Inpatient Bill issued by M.S. Ramaiah Hospital Ex.P16 Inpatient Bill issued by City Hospital Ex.P17 Advance Receipts (8 in nos.) Ex.P18 Prescriptions (47 in nos.) Ex.P19 Medical Bills (166 in nos.) Ex.P20 Outpatient Case Sheet Ex.P21 Inpatient Case Record Ex.P22 C.T. Scan Films (4 in nos.) Ex.P23 Case Sheet Ex.P24 Recent examination Report III. LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS:
The counsel for Respondent No.2 filed memo adopting the evidence of administrative officer of Insurance Company recorded in M.V.C.No.2170/2016.
IV. LIST OF DOCUMENTS MARKED ON BEHALF OF
RESPONDENTS:
- NIL -
(SUJATHA S),
IX Addl. Small Causes Judge
& XXXIV ACMM, Court of Small causes,
Member, MACT-7, Bangalore.