Bangalore District Court
If At All vs It Is Not Liable To Pay Any Compensation on 17 April, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 17th day of April, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B.(Spl.), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.3955/2009
K.S.Muralidhar,
S/o K.S.Sampath Kumar,
Aged about 37 years,
R/at No.3/13, 1st Floor,
3rd Cross, BSK 3rd Stage,
Hoskerehalli, ..... PETITIONER
Bangalore-560 085.
(By Sri. L. P. Suresh, Adv,.)
V/s
1. Smt.R.Subbulakshmi,
W/o Radhakrishnan,
Aged about 35 years,
R/at No.25, Ramanujam Street,
Rajakadai, Tiruvallur District,
Tamilnadu-600 019.
(Owner of the Container Lorry Bearing
Reg.No.TN-04-D-1047)
2. The New India Assurance
Company Ltd.,
R.O.No.2B, Unity Building,
Annex Mission Road, ....RESPONDENTS
Bangalore-27.
(Policy issued by Chennai Office,
2
(SCCH-7) M.V.C.NO.3955/2009
No.2, 1,Thiruvottiyur High Road,
II Floor, Tondiarpet, Chennai-21 in Policy
No.710203/31/08/00004526 valid from
28.06.2008 to 27.06.2009)
(R1 - Exparte)
(R2 - By Sri. V. Subramani, Adv.,)
JUDGMENT
It is pertinent to note here that, the Judgment and Award is passed on 10.02.2011 in the present petition by this Tribunal and as per the Judgment dated 12.08.2014 passed by the Hon'ble High Court of Karnataka in M.F.A.No.6374/2011 (MV), the said Judgment and Award passed by this Tribunal is set- aside and the matter is remanded to this Tribunal for consideration afresh, in accordance with law and pass orders after affording an opportunity to the parties to produce additional evidence, both oral and documentary, if any. Hence, the present petition is pending before this Tribunal for fresh consideration and disposal.
2. The brief averments of the Petitioner's case are as follows;
a) On 22.08.2008 at about 5.30 a.m., he and others were traveling in their Company Vehicle Tempo Traveler bearing Registration No.KA-02-D-9626 towards his Company situated at Kasaba Industrial Area, Hoskote for work. At that time, the driver of the Container Lorry bearing Registration No.TN-04-D-1047 drove his vehicle with rash and negligent manner came from opposite direction and dashed his vehicle in front of Avalahalli 3 (SCCH-7) M.V.C.NO.3955/2009 H.P. Petrol Bunk, Bangalore-Kolar N.H-4, Hoskote, Bangalore. Due to the said accident, he sustained grievous injuries. Immediately, he was shifted to Hosmat Hospital, Bangalore for treatment.
b) The Doctor, who examined him, has disclosed that, he has sustained the injuries with 90% permanent disability, i.e., fracture of co-vertebra with anterior dislocation over C-7, Cervical spine revealed dislocation of C6 over C7, C7 bilateral transverse process fracture, C6 fracture both laminae and body.
c) Prior to the accident, he was hale and healthy and he was working as Workman in LM Glass fiber (India) Pvt. Ltd., and he was earning a gross salary of Rupees 28,221/-. Because of the injuries sustained by him, he is completely bed ridden and he is unable to do his daily routine work. He has become permanently disable, thereby, he has lost his future income. He was very active and intelligent, not only in his employment, apart from his employment he working as LIC Agent and he has earned many customers and that agency, he was getting commission about Rupees 30,000 to 40,000/- per annum. The adverse impact and the gravity of injury is so serious that, he has to be completely in the bed for the rest of his life and with great difficulty, he has to move on wheel chair throughout his life. He is not able to know about his bowl and urine sensation and he has lost sensation on all organs, i.e., upper and lower limbs of the body. These existing pain, sufferings, trauma has caused another problem of bed sore and he is suffering in each minute with all these problems and need a care taker round the clock throughout his life. It is also causing mental agony, 4 (SCCH-7) M.V.C.NO.3955/2009 inactive body, certainly leads to many other health problems. The accident has shattered the entire life and promising future of his. He has spent huge amount for his future medical expenses.
d) The Respondent No.1 being the registered owner of Container Lorry bearing No.TN-04-D-1047 and the Respondent No.2 being the Insurance Company, with which, the Container Lorry is insured. The Respondents No.1 and 2 are jointly and severally liable to pay the compensation to him, who is suffering of injuries, shock, pain physical and mental agony, medical, nourishment, conveyance expenses, permanent disability, loss of income, future loss of earning capacity, discomfort and amenities.
e) The Hoskote Police have registered a case in their Crime No.414/2008 for the offences punishable under Sections 279, 337 and 338 of IPC against the driver of the Container Lorry bearing Registration No.TN-04-D-1047. Hence, this Petition.
3. Initially, though the notice was duly served on Respondent No.1 through paper publication, she was remained absent and hence, she was placed as exparte on 22.02.2010. Even after the remand, though the notice was duly served on the Respondent No.1, she was remained absent and hence, she is placed as exparte.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and 5 (SCCH-7) M.V.C.NO.3955/2009 has filed the written statement. The Respondent No.2 has also filed the additional written statement.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition filed by the Petitioner under Section 166 of the M.V. Act is not maintainable either in law or on facts of the case and also for non-joinder of necessary parties.
b) The first Respondent did not reported and furnished the R.T.O. documents, such as, R.C. Book, Permit, F.C., pertains to the Container Lorry bearing Registration No.TN-04-D-1047 and driving licence of the person, who was driving it at the time of accident to it for verification immediately after the alleged accident as required under the terms and conditions of the policy and the provisions of Section 134(c) of M.V. Act. Hence it is not liable to pay any compensation, much less, the compensation sought for and the driver of the said Container Lorry at the time of accident does not possess valid and effective driving licence. Hence, it is not liable to pay any compensation.
c) The amount of compensation claimed under the heads suffering of injuries, shock, pain, physical and mental agony, medical, nourishment, conveyance expenses, permanent disability, loss of income, future loss of earning capacity, discomfort and amenities in all a sum of Rupees 40,00,000/- together with interest jointly and severally from the Respondents No.1 and 2 is without any basis, arbitrary and 6 (SCCH-7) M.V.C.NO.3955/2009 astronomical. The Petitioner is not entitled to any compensation, much less, the compensation sought for.
d) If at all the said complaint and lodging F.I.R. is found to be true, the same is at the behest of the Petitioner to somehow claim compensation. It is not furnished with the documents as required under Section 158(6) of M.V. Act R/w Rule 231(A) of the Karnataka Motor Vehicles Rules.
e) It reserves its right to defend the claim on various grounds, which are all available under Section 149(2) and also by filing I.A. under Section 170 of M.V. Act 1988, if the second Respondent, the owner of the Container Lorry, had been either placed exparte or even represented, but, fails to contest the case at all stages of the proceedings, until its adjudication by this Hon'ble Tribunal.
f) It being the insurer is not admitting the issue of policy of Insurance being the said policy might have been issued by any one of its Offices at Tamilnadu State, possibly by Chennai Branch and needs confirmation from them to the effect, in the absence of it, it is not liable to pay any compensation to the Petitioner. If at all, the said policy would have been issued by themselves, the same shall be enforceable subject to compliance of its terms, conditions, provisions of the M.V. Act, 1988, State and Central Rules, by the first Respondent and if there exist any violation or breach of the same by the first Respondent, it is not liable to pay any compensation.
g) In the event, if this Hon'ble Tribunal coming to the conclusion that, the Petitioner is entitled to compensation with 7 (SCCH-7) M.V.C.NO.3955/2009 interest, then the interest, that could be awarded on there of shall be restricted to 3.5% in view of slashing down of interest rate for the deposits allowed by various nationalized Banks.
h) If there exists breach of terms of conditions of the policy and/or violation of the provisions of M.V. Act, 1988 and/or State and/or Central Rules, it is not liable to indemnify the insured. Under the said circumstances, viewing practical difficulties taken into for consideration of depositing the award, if any, by it, withholding the same unpaid to the Petitioner, until the award amount has been realized from the owner of the vehicle, it prays this Hon'ble Tribunal that, the Award and Judgment shall be passed against the owner of the vehicle concerned alone and not against it, in the interest of justice and equity. By virtue of the various latest judgments passed by the Hon'ble Supreme Court of India, the insurer is not liable to pay any compensation, when the driver does not possess a valid and effective driving licence and the owner and the driver alone are liable to compensate the Petitioner.
i) The Petitioner is called to furnish the R.T.O. documents pertains to Tempo Traveler bearing Registration No.KA-02-D-9626, viz., R.C. Book, Tax Card, Insurance Policy, valid F.C., Permit and D.L of the person, who was driving the said vehicle at the time of accident, before this Hon'ble Tribunal as required under Section 146 and Section 3 of M.V. Act. In the absence of the same, it is not liable to pay any compensation.
j) If at all the Petitioner sustained any injury caused in the alleged accident, it is due to the Petitioner's own 8 (SCCH-7) M.V.C.NO.3955/2009 sole/contributory negligence for having been a passenger in the said vehicle, which was driven in a rash and negligent manner ignoring the oncoming vehicles on road, for which, it is not liable to pay any compensation.
k) If at all it is made liable to compensate the Petitioner, no interest shall be awarded on future medical expenses and future loss of earning based on the decision of the Hon'ble Supreme Court rendered in R.D. Hattangadi V/s Pest Control of India (P) Ltd., reported in AIR 1995 755 (S.C.). Hence, prayed to dismiss the petition with costs.
6. The Respondent No.2 has taken the same contentions of its written statement in its additional written statement also.
7. Based on the above said pleadings, my Learned Predecessor-in-Office has framed the following Issues;
ISSUES
1. Whether the Petitioner proves that on 22.08.2008 at about 5.30 a.m., when he and his friends were traveling in their company vehicle Tempo Traveler bearing Reg.No.KA-02-D-9626 and when the said vehicle was proceeding in front of Avalahalli H.P. Petrol Bunk, Bangalore-Kolar NH-4, Hosakote, Bangalore at that time, the driver of the Container Lorry bearing Reg.No.TN-
04-D-1047 drove the same in a rash and negligent manner and dashed against the Tempo Traveler? If so, 9 (SCCH-7) M.V.C.NO.3955/2009 whether the Petitioner proves that, he sustained injuries was due to alleged accident?
2. Whether the Petitioner is entitled to compensation? If so, how much and from whom?
3. What Order or Award?
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined two witnesses as P.W.2 and P.W.3 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.38. On the other hand, the Respondent No.2 has examined its Administrative Officer as R.W.1 and has also examined one witness as R.W.2 and has placed reliance upon Ex.R.1 to Ex.R.4.
9. Heard the arguments.
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for total
compensation of Rupees
58,09,930/- with interest
at the rate of 6% p.a. from
the Respondent No.2.
Issue No.3 : As per the final Order,
10
(SCCH-7) M.V.C.NO.3955/2009
for the following;
REASONS
11. ISSUE NO.1:- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, on 22.08.2008 at about 5.30 A.M., when he was traveling in a Tempo Traveler bearing Registration No.KA-02-D-9626 along with his co-employees to attend his duties at Kasaba Industrial Area, Hoskote and when their vehicle reached near Avalahalli, H.P. Petrol Bunk, Bangalore -Kolar NH, at that time, a Lorry bearing Registration No.TN-04-1047 by its driver came in a rash and negligent manner with high speed from the opposite side and dashed against their vehicle. He has further stated that, due to the said accident, he had sustained grievous injuries on his neck and all over the body and immediately, he was shifted to Hosmat Hospital, Bangalore, wherein, he was taken treatment as an inpatient from 22.08.2008 to 09.12.2008. He has further stated that, X-ray, MRI and C.T. Scan were done and those tests revealed that, he had sustained fracture of C6 vertebra with anterior dislocation over C7, Cervical spine reveled dislocation of C6 over C7, C7 Bilateral transverse process fracture, C6 fracture both laninae and body, Cord is completely transected at C6-7 level, Cord Contusions at C4 and C5 level. At C7 and Ti level cord is enlarged with hyper intensity due to contusion and extradural hematoma at C5 level compressing the cord. He has further stated that, the accident was occurred only due to rash and negligent driving of the driver of the Lorry bearing Registration No.TN-04-1047 11 (SCCH-7) M.V.C.NO.3955/2009 and the jurisdictional Police Hoskote Traffic Police had filed charge sheet as against the driver of the said Lorry.
12. No doubt, it is elicited from the mouth of P.W.1 by the Respondent No.2 that, he does not know whether his colleges, who were inmates of the Tempo Traveler have sustained any injuries in the alleged accident and who actually lodged complaint regarding accident relating to the present case. He has further stated that, he has not seen the offending Lorry on the date of the accident and he heard the Lorry, which caused accident is a Container and Container vehicle means, the vehicle, which carries heavy loads, like Cars, industrial machines, imported materials. Based on the said evidence, which is elicited from the mouth of P.W.1 by the Respondent No.2, it cannot be thrown away the above said oral version of P.W.1 relating to the alleged accident, wherein, the offending Lorry bearing Registration No.TN-04- 1047 as well as its driver are involved, wherein, he had sustained the injuries, as, to corroborate his oral version, the Petitioner has also produced Ex.P.1 F.I.R, Ex.P.2 Complaint, Ex.P.3 Mahazar, Ex.P.4 M.V.I. Report, Ex.P.5 Wound Certificate, Ex.P.6 Charge Sheet, Ex.P.7 Discharge Summary, Ex.P.8 MIR Reports, Ex.P.10 Lab Reports 2 in numbers, Ex.P.24 Photographs 7 in numbers and Ex.P.24(a) C.D. relating to the said Ex.P.24 Photographs. Further, the Petitioner has also examined the treated Doctor as P.W.2, who has also stated in his examination-in-chief that, the Petitioner was admitted in their Hospital with a history of road traffic accident on 22.08.2008 and he was advised to undergo C.T. Scan of cervical spine and M.R.I. Screening of cervical spine, which 12 (SCCH-7) M.V.C.NO.3955/2009 reveals that, fracture C-6 vertebra with anterior dislocation over C-7, cord is completely transacted at C6- 7 level, Cord contusions at C4 and C5 levels, At C7 and T1 level cord is enlarged with hyper intensity due to contusion and extradural hematoma is seen at C5 level compressing the cord. He has further stated that, he was underwent C-6 Corpectomy, C6-7, C5-6 Micro Discetomy and fusion using right iliac bone graft with plate (42.5mm) and screws (13mm) - Titanium Ziper system under fluoro guidance on 28.08.2008 and he was discharged from their Hospital on 09.12.2008. The P.W.2 has also produced Ex.P.26 and Ex.P.27 Inpatient Records 2 in numbers and Ex.P.29 X-ray films 50 in numbers. From the contents of the said material documents, it clearly goes to show that, the Petitioner had sustained grievous injuries in the road traffic accident, which was taken place on 22.08.2008 at about 5.30 A.M., due to the high speed, rash and negligent manner of driving of the driver of the offending Lorry bearing Registration No.TN-04-1047 by its driver. Furthermore, the P.W.1 in his cross-examination has clearly stated that, at the time of accident, he was traveling in Tempo Traveler to attend the duty and Kumar, who is the driver of the Tempo Traveler had lodged the complaint with respect of the said road traffic accident and he took treatment to the said accidental injuries by admitting as inpatient form 22.08.2008 to 09.12.2008. Though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth that, there was no negligence on the part of the driver of the offending Lorry bearing Registration No. TN-04-1047, but, the entire negligence is on the part of the driver of the Tempo 13 (SCCH-7) M.V.C.NO.3955/2009 Traveler bearing Registration No.KA-02-D-9626, wherein, the Petitioner was traveling at the time of accident.
13. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the driver of the Tempo Traveler bearing Registration No.KA-02-D-9626, wherein, the Petitioner was traveling, had lodged the complaint as against the driver of the Lorry bearing Registration No.TN-04-1047 alleging that, due to his high speed, rash and negligent manner of driving of the said offending Lorry, the said road traffic accident was taken place near H.P. Petrol Bunk, Hoskote - Kolar NH-4 Road, Avalahalli on 22.08.2008 at about 5.30 A.M. and due to said impact, the Petitioner and others had sustained grievous injuries and entire right portion of the said Tempo Traveler was damaged and based on the said Ex.P.2 Complaint, the Hoskote Police have filed a criminal case as against the driver of the offending Lorry for the offences punishable under Section 279 and 337 of IPC under Crime No.414/2008. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay, as such, in lodging Ex.P.2 Complaint.
14. The contents of Ex.P.3 Spot Mahazar and Ex.P.4 M.V.I. Report clearly disclosed about the very involvement of the offending Lorry bearing Registration No.TN-04-1047 as well as its driver in the said road traffic accident, wherein, the Petitioner had sustained grievous fatal injuries. The damages caused to both the vehicles are clearly mentioned in Ex.P.4 M.V.I. Report, which clearly disclosed about the terrific impact of the said accident.
14(SCCH-7) M.V.C.NO.3955/2009
15. The contents of Ex.P.5 Wound Certificate issued by the Hosmat Hospital clearly disclosed that, with a history of road traffic accident, which was caused on 22.08.2008 at 5.20 A.M., the Petitioner was shifted to the said Hospital and by admitting as an inpatient from 22.08.2008 to 09.12.2008 , to took treatment to the said injuries and it is found that, in the said road traffic accident, he had sustained post traumatic quadriparetic secondary to C6-7 fracture dislocation, which is grievous in nature. The line of treatment is clearly mentioned in Ex.P.7 Discharge Summary issued by the Hosmat Hospital. By admitting as an inpatient for 110 days, from 22.08.2008 to 09.12.2008, in the said Hospital, the Petitioner took treatment to the said accidental injuries. From this, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained severe grievous injuries.
16. The contents of Ex.P.6 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner driving of the Container Lorry bearing Registration No.TN-04- 1047 by its driver, the said road traffic accident was taken place on 22.08.2008 at about 5.30 A.M. in front of Avalahalli H.P Petrol Bunk, when the Petitioner was traveling in Tempo Traveler bearing Registration No.KA-02-D-9626 and due to the said impact, the Petitioner and other passengers of the Tempo Traveler had sustained grievous injuries and simple injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the 15 (SCCH-7) M.V.C.NO.3955/2009 offending Lorry for the offences punishable under Section 279, 337 and 338 of IPC. The Petitioner is also made as one of the witness as injured in Ex.P.6 Charge sheet.
17. From the above said material oral and documentary evidence, it is made crystal clear that, offending Lorry bearing Registration No.TN-04-1047 as well as its driver, are very much involved in the said road traffic accident, wherein, the Petitioner had sustained severe grievous injuries. To deny or discard the same, nothing is available on record on behalf of the Respondents.
18. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the Petitioner by adducing acceptable material evidence, both oral and documentary, has established that, the accident has occurred due to the rash and negligent driving of the Lorry bearing Registration No.TN- 04-1047 by its driver and in the said accident, he sustained grievous injuries. Accordingly, I answered Issue No.1 in the Affirmative.
19. ISSUE NO.2 :- The Petitioner has produced Ex.P.30 S.S.L.C Marks Card relating to him, which disclosed that, his date of birth is on 09.03.1972. The date of accident is on 22.08.2008. From the said dates, it appears that, at the time of accident, the Petitioner was 36 years old. Hence, the age of the Petitioner is considered as 36 years at the time of accident.
16(SCCH-7) M.V.C.NO.3955/2009
20. The P.W.1 has stated that, he was also doing LIC Agency and obtained the licence from the LIC Authority and his licence number is 2343748 and he was getting yearly commission. He has further stated that, he received Rupees 18,067/- in the year 2006-2007 and Rupees 53,455/- in the year 2007-2008 and Rupees 46,350/- in the year 2008-2009. The R.W.1, who is the Administrative Officer, Legal Department, LIC, Division Officer - 1, J.C. Road, Bangalore has produced Ex.R.4 Statement of Status Report of LIC relating to the Petitioner. He has further stated in his cross-examination that, they have issued a licence to the Petitioner in March- 2006. The Petitioner has produced Ex.P.21 Licence Certificate and Ex.P.22 TDS Certificate 3 in numbers issued by the LIC. The R.W.1 has clearly identified Ex.P.21 and Ex.P.22 by saying that, the licence issued to the Petitioner are Ex.P.21 and Ex.P.22 by their Office and the Petitioner was an agent of their Company for the year 2008-2009. He has further clearly stated that, they have also deducted TDS in the commission. From the evidence of P.W.1 and P.W.2 and contents of Ex.P.21 and Ex.P.22, it clearly goes to show that, the Petitioner was doing LIC Agency by obtaining necessary licence from the LIC Authority and his licence number is 2343748 and from the said LIC Agency, he was getting yearly commission at the time of accident. It is also clear from the contents of Ex.P.22 TDS Certificate that, the Petitioner has received commission of Rupees 18,067-70 in the year 2006-2007, Rupees 53,455-18 in the year 2007-2008 and Rupees 46,350-11 in the year 2008-2009, in total, Rupees 1,17,872-99, in 3 years. It is also 17 (SCCH-7) M.V.C.NO.3955/2009 clearly mentioned in Ex.P.22 TDS Certificate that, after deducting the income tax of Rupees 1,843/- in the year 2006- 2007, Rupees 5,506/- in the year 2007-2008 and Rupees 4,774/- in the year 2008-2009, the said respective amount was paid by the LIC to the Petitioner as commission for the said 3 years, i.e., 36 months, the Petitioner has received Rupees 1,17,872-99 as commission from LIC, i.e., at the time of accident. When a sum of Rupees 1,17,872-99 is received by the Petitioner as commission from LIC for 3 years, i.e., 36 months, his average monthly income from LIC Agency, i.e., commission amount is of Rupees 3,274-24/- (Rupees 1,17,872-99 / 36 Months), which is rounded of Rupees 3,274/- P.M. From this, it is made crystal clear that, at the time of accident, the Petitioner was received a commission of Rupees 3,274/- P.M. from LIC.
21. The P.W.1 has stated that, as on the date of the accident, he was working as an Assistant Team Leader and drawing a monthly salary of Rupees 25,748/-. The P.W.3, who is the Manager and Plant HR and Admin of the employer of the Petitioner has stated that, the Petitioner was joined their organization in the month of August as Technician and his CTC was Rupees 12,738/- and he was promoted as Senior Associate - Maintenance in the month of April 2007 and at that time, his Gross Salary was Rupees 17,688/- and again he was promoted as Assistant Team Leader in the month of April 2008 and salary was increased to Rupees 24,546/-. In this regard, the Petitioner has produced Ex.P.13 Appointment Letter issued by BPL Refrigerator Ltd., with terms and 18 (SCCH-7) M.V.C.NO.3955/2009 conditions, Ex.P.14 Promotion Intimation Letter issued by BPL 4 in numbers, Ex.P.15 Probationary Appointment issued by LM Glass Fibre, Ex.P.16 Confirmation of Appointment dated 13.09.2006, Ex.P.17 Promotion Letter with Revised Salary Statement dated 30.05.2007, Ex.P.18 Promotion Letter dated 21.05.2008 with revised Salary Statement, Ex.P.19 29 Pay Slips from 30.06.2008 to 01.01.2009, Ex.P.20 Bank Statement from 01.05.2006 to 20.09.2009, Ex.P.30 S.S.L.C Marks Card, Ex.P.31 ITI Certificate, Ex.P.32 Letter issued by his employer on 04.09.2009, Ex.P.33 Bank Statement from 01.08.2009 to 25.10.2010, Ex.P.36 Letter issued by ROC and Ex.P.37 Form No.16 for the Assessment Year 2008-2009. On perusal of the contents of the said material documentary evidence and the oral version of P.W.1 and P.W.3, it clearly goes to show that, at the time of accident, the Petitioner was working as an Assistant Team Leader and he was a permanent employee and his salary was increased from time to time and he was also promoted from time to time.
22. The P.W.1 has stated that, as on the date of the accident he was drawing a monthly salary of Rupees 25,748/- and his salary was directly credited to his Bank Account and as per the document, his income for the period 01.04.2007 to 31.03.2008 was Rupees 2,57,688/- p.a. He has further stated that, in the month of April 2008, his salary was hiked to Rupees 24,546/- P.M. and he is not an income tax assessee as his statutory savings are more, which are deducible, while computing the income tax. To consider his income, the Petitioner has produced Ex.P.19 Pay Slips for the period from January 2006 to June 2008, Ex.P.20 Statement of Account 19 (SCCH-7) M.V.C.NO.3955/2009 relating to him for the period from 01.01.2006 to 20.09.2009, Ex.P.33 Statement of Bank Account from 01.08.2009 to 25.10.2010 and Ex.P.37 Form No.16 for the Assessment Year 2008-2009. From the contents of Ex.P.19 Pay Slips, it clearly goes to show that, from January 2006 to June 2008, the Petitioner had received Net Salary of Rupees 16,009/- to Rupees 25,153/-. The entries made in Ex.P.20 Statement of Account further clearly disclosed that, from 01.01.2006 to 20.09.2009, the salary of the Petitioner was credited to his Bank Account, which is Rupees 16,009/- to Rupees 24,593/-. Ex.P.33 Statement of Bank Account and Ex.P.37 Form No.16 further clearly disclosed that, after December 2008, the Petitioner has not received any salary from his employer and he has no income at all after 2008. Ex.P.20 Statement of Bank Account relating to the Petitioner has clearly disclosed that, Net Salary of Rupees 24,593/- is received by the Petitioner as salary for the month of August 2008, which is the month, he had sustained injuries in the road traffic accident. It is also clear from the contents of said Ex.P.19, Ex.P.20, Ex.P.33 and Ex.P.37 that, the Petitioner was not an income tax assesse at the time of accident and under such circumstances, based on the said material documents, it can be safely considered that, at the time of accident, the net salary of the Petitioner is Rupees 24,593/- P.M. It is also clear from the contents of Ex.P.19 Pay Slips that, the statutory deductions of the salary in the Gross Salary are more and as such, no income tax is deducted in his salary and he was not an income tax assessee. No doubt, the Respondent No.2 has seriously disputed about the income of the Petitioner, while cross-
20(SCCH-7) M.V.C.NO.3955/2009 examining the P.W.1. But, by producing the relevant material documents, which are narrated above, the Petitioner has established that, at the time of accident, i.e., during August 2008, he received Net Salary of Rupees 24,593/- P.M., i.e., at the time of accident.
23. As this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was earning Rupees 3,274 P.M. from LIC as he was also a LIC Agent. By considering the income from salary and income from LIC as discussed above, the total income of the Petitioner was Rupees 27,867/- P.M. at the time of accident (Rupees 24,593/- + 3,274/-). Therefore, the actual income of the Petitioner is considered as Rupees 27,867/- P.M. at the time of accident.
24. It is not in disputed that, after the accident, the Petitioner was resigned his job. The P.W.1 has stated that, after his resignation, his employer has settled his employment benefits under Industrial Dispute Act and paid a sum of Rupees 6,61,371/-, which includes loss of salary from January 2009 to September 2009, Leave encashment, Leave Travel Allowance, Gratuity and compensation amount on humanitarian ground by appreciating his work. The P.W.3 has also stated that, their company is settled a sum of Rupees 6,61,371/- towards his full and final settlement on 04.09.2009, which includes salary from January 2009 to September 2009, Leave encashment, Leave Travel Allowance, Gratuity and compensation amount on humanitarian ground for compensation under differing heads in the present petition, 21 (SCCH-7) M.V.C.NO.3955/2009 as, the said amount of Rupees 6,61,371/- received by the Petitioner is relating to his service benefits, which is legally entitled by him due to his inability to continue to his service under his employer in the company and no otherwise. Further, the P.W.1 and P.W.3 have clearly stated that, the said amount of Rupees 6,61,371/- was paid to the Petitioner as compensation of humanitarian ground, which includes salary from January 2009 to September 2009, Leave encashment, Leave Travel Allowance, Gratuity. As this Tribunal has already come to the conclusion that, though the Petitioner had joined the service in September 2002, from time to time, he was promoted from the post of Manager Plant HR to Assistant Team Leader. From this, it appears that, within the span of short time, the Petitioner was promoted and get appropriate salary based on his appreciable work. Further, this Tribunal has already observed that, after the accident, the Petitioner was discontinued his job and due to the accidental injuries, he has lost sensation of both lower limbs and not control over bowels. When such being the physical and functional condition and situation of the Petitioner, he cannot be continued his job or joined any job to get income to lead his life. Due to the accidental injuries, the Petitioner has lost his bright future, both in service and life. Therefore, a sum of Rupees 6,61,371/- received by the Petitioner from his employer as employment benefits in respect of the full and final settlement, no way affect to award the compensation in the present petition under different heads and the said amount cannot be deducted in the compensation amount, 22 (SCCH-7) M.V.C.NO.3955/2009 which has to be awarded by this Tribunal in the present petition.
25. It is elicited from the mouth of P.W.1 by the Respondent No.2 that, he has hurdle to produced the Bank Pass-book to show the withdrawal of periodical interest from the fixed deposit amount, which is deducted out of the compensation amount awarded by this Tribunal and after maturity of the said fixed deposit amount he has again kept the said amount in fixed deposit at Karnataka Bank, Banashankari Branch, Bengaluru and earlier he was drawing Rupees 32,000/- per quarterly as interest from the said deposit and he has not filed the income tax returns before the income tax authority for the Assessment Year 2008-2009 relating to Ex.P.37. He has further stated that, he has no hurdle to produce the Karnataka Bank Pass book. From the said evidence of P.W.1, it appears that, the Petitioner is receiving periodical interest on the fixed deposit amount, which is deppsited out of the compensation amount, which was all ready awarded by this Tribunal in the present suit. Drawing of interest from the fixed deposit amount, which is already awarded by this Tribunal as compensation to the Petitioner cannot be considered as income of the Petitioner, as, the Hon'ble High Court of Karnataka has set-aside the Judgment and Award dated 10.02.2011 passed by this Tribunal in the present petition. Further, by producing Ex.R.3 Statement of Account relating to the Petitioner, the Assistant Branch Manager of the Karnataka Bank Ltd., Banashankari 3 rd Stage Branch, Bangalore, who is examined as R.W.2, has 23 (SCCH-7) M.V.C.NO.3955/2009 clearly stated that, after deduction of TDS, they have paid the interest amount to the Petitioner. Therefore, receiving periodical interest from the fixed deposit amount, which is deposited out of the compensation already awarded by this Tribunal, which is also set-aside by the Hon'ble High Court of Karnataka, cannot be considered as income of the Petitioner.
26. The P.W.1 has stated that, he was underwent major surgery on 28.08.2008, for mobilization and stabilization purpose and the assurance given by the Doctor regarding recovery is only 5% and expected post operative complications including prolonged ventilator support, tracheotomy was done using protex tube No.8 and he was discharged from the Hospital on 09.12.2008 with advised for follow up treatment. He has further stated that, the complication of the injury has developed collapse of right upper lobe, which was managed with bronchoscope and aggressive physio in consolation with Pulmonologists and his pathetic condition at the time of discharge are afebrile normetensive with quadreparesis upper limbs, shoulder Grade
- 3, elbow flexion Grade - 3, Wrist grade - 0 and lower limbs grade 0 and he is on catheter, drainage with no bladder sensation. The P.W.1 in his cross-examination has also clearly stated that, he took treatment as an inpatient from 22.08.2008 to 09.12.2008 and he has taken treatment after discharge from the Hospital and after discharge from the Hosmat Hospital, again he took treatment as an inpatient for a period of 2 days in Vinayaka Hospital for Urinary problem followed by bleeding. He has further stated that, after discharge from Vinayaka Hospital in the year 2009, he took 24 (SCCH-7) M.V.C.NO.3955/2009 treatment at Vinayaka Hospital afternoon to till evening. The Petitioner has also produced Ex.P.24 Photographs 7 in numbers and Ex.P.24 (a) CD relating to the said Photographs, which disclosed his physical condition after the accident and after taking treatment from the Hospitals. The P.W.1 in his cross-examination has stated that, Ex.P.24 Photographs, i.e., Serial No.7 is taken at the bedsore. As this Tribunal has already come to the conclusion based on Ex.P.5 Wound Certificate and Ex.P.7 Discharge Summary that, in the said road traffic accident, the Petitioner had sustained severe grievous injuries and by admitting as an inpatient from 22.08.2008 to 09.12.2008 at Hosmat Hospital, i.e., 110 days, he took treatment to the said grievous injuries. In the said road traffic accident, the Petitioner had sustained post traumatic quadriparetic secondary to C6-7, C5-6 fracture dislocation, which is clear from the contents of Ex.P.5 Wound Certificate and Ex.P.7 Discharge Summary. The investigations done by the concerned Doctors relating to the injuries sustained by the Petitioner in the said road traffic accident is clearly mentioned in Ex.P.7 Discharge Summary. It is clearly mentioned in Ex.P.7 Discharge Summary that, the Petitioner is mobilized in a wheel chair. From the reference made in the Ex.P.7 Discharge Summary, it is made crystal clear that, the Petitioner has been regularly taking follow up treatment. The above said oral version of P.W.1 in respect of the injuries caused to him in the said road traffic accident and sufferings are clearly corroborated with the contents of Ex.P.7 Discharge Summary. In support of the same, the Petitioner has also examined Dr. N.C. Prakash, who is the P.W.2, who has treated 25 (SCCH-7) M.V.C.NO.3955/2009 him on the date of admission, who has stated in his examination-in-chief that, he has treated the Petitioner and he was admitted to their Hospital with a history of road traffic accident on 22.08.2008 and he was advised undergo C.T. of cervical spine and M.R.I. screening of cervical spine, which reveals that, fracture C-6 vertebra with anterior dislocation over C-7, cord is completely transacted at C6 -7 level and Cord contusions at C4 and C5 levels, at C7 and T1 level cord is enlarged with hyper intensity due to contusion and extradural hematoma is seen at C5 level compressing the cord. He has further stated that, he was underwent C-6 Corpectomy, C6-7, C5-6 Micro Discetomy and fusion using right iliac bone graft with plat (45.5mm) and screws (13mm) - Titanium Ziper system under fluoro guidance on 28.08.2008. He has further clearly stated that, the Petitioner was discharged from their Hospital on 09.12.2008 with advise to attend for regular follow-up treatment and as per advise, he is under continuous medication and physiotherapy to control further worsen of present condition. To show the line of treatment given to the Petitioner, the P.W.2 has produced Ex.P.26 and Ex.P.27 Inpatient Records and Ex.P.29 X-ray films 18 numbers. The P.W.2 further clearly stated in his cross- examination that, he is the only Doctor treated the Petitioner and he has treated the Petitioner on the date of admission itself and he had under gone surgery on 28.08.2008 and on that day, implants were fixed and X-ray film shows fixation of implants in the place of C-5 to C-7. He has further clearly denied the suggestion put to him, the condition of the Petitioner improved during the follow-up treatment. He has 26 (SCCH-7) M.V.C.NO.3955/2009 further stated that, their junior Doctor had put the Catheter, because the Petitioner has no urinary sensation and it has to be changed regularly and in the course of his treatment regarding spine problem, he might have treated the Petitioner for urinary infection. He has further clearly stated that, the Petitioner has to take treatment all along his lifetime. From the said evidence of P.W.2 it is further made crystal clear that, due to the said accidental injuries, the Petitioner is suffering from various difficulties and even though by admitting as an inpatient for 110 days in the Hospital, he took treatment to the accidental injuries, he is very much required follow-up treatment regularly.
27. The P.W.1 has stated that, he is under cathedral and it has to be changed frequently and he is totally immobilized and also urine was blocked and body became cold, both foots and hands became brown and swetting and hence, he was taken NU Hospital Diagnostic Services for treatment on 19.09.2009. The said evidence has clearly supported by the above said oral version of P.W.2 and the contents of Ex.P.24 Photographs and Ex.P.26 and Ex.P.27 Inpatient Records. From this, it is further made crystal clear that, regular follow-up medical assistant is very much required for the Petitioner throughout his entire life time.
28. The P.W.1 has stated that, still he is bed ridden and due to the severity of fracture of cervical spine, there is no sensation to entire upper and lower limb and he cannot move urinary system and he lost sensation on all organs, i.e., upper 27 (SCCH-7) M.V.C.NO.3955/2009 and lower limbs of his body. He has further stated that, due to loss of sensation of all organs and he has to lie on bed throughout his life and it has caused another problem of bed sore and adding to these injuries due to in activeness of body has led other health problems. He has further stated that, the gravity of injury and disablement is so serious and pathetic that, he has to depend on his wife for his entire requirement including for brush of tooth. He has further stated that, except breathing his self, his is depending and he has to depend others. He has further stated that, after the accident, due to accidental injuries, he become quadriplegic and immobilized and he has to lead his entire life on bed. He has further stated that, though Doctor had assessed disability of 85%, but, he is suffering 100% functional disability. He has further stated that, after the accident, he had resigned his job and now he is now leaving without any income and the mercy of others. He has further stated that, due to the accidental injuries, he is totally immobilized and happiness, peace, comfort, future of his entire his family i.e., wife and tender aged minor daughter is shattered and they also indirectly suffering in family life. He has further stated that, till today, he is taking follow-up treatment to control further deterioration in his health condition. He has further stated that, he had very promising future and promotion aspect in that company and the accidental injuries has caused total loss of future prospects and promotion.
29. The P.W.2 has stated that, he examined the Petitioner on 30.09.2010 for assessment of disability and he 28 (SCCH-7) M.V.C.NO.3955/2009 complains of no sensation to below the C-7 Dermatome, lost sensation of bowel and urinary system, no control below the neck and needs assistance for every activity. He has further stated that, on examination, he found that, at present he is in wheel chair bound with no movements (Grade 0/5) in both lower limbs, minimal movements in bilateral upper limb proximally with wrist being very weak (1/5 power) and grip is not possible. He has further stated that, he has no urinary control, has no sensation of bowels and is on urinary catheter and he needs help for all his day to day activities. He has further stated that, the Petitioner was an Assistant Team Leader in LM Glass Fibers India Pvt. Ltd., and now cannot do any work and he has almost no chance of further improvement and impairment is likely to be permanent and all put together he has a disability of about 85% to the whole body. In support of his evidence, the P.W.2 has produced Ex.P.28 Out-patient Records and Ex.P.29 X-rays films.
30. No doubt, the P.W.2 in his cross-examination has admitted that, he is not an Orthopedic Surgeon and he has assessed the disability of the Petitioner only in respect of neuro problem. But, based on the same, it cannot be thrown away the entire evidence of P.W.1 and P.W.2 in respect of the permanent impairment of the Petitioner and suffering from disability of about 85% of the whole body as stated by the P.W.2, as, the P.W.2 is a treated Doctor and he has clearly stated in his cross-examination that, it is not necessary to remove the implants during the life time of the Petitioner and Catheter has been regularly used by the Petitioner, because, 29 (SCCH-7) M.V.C.NO.3955/2009 he has no urinary sensation and the Petitioner has to take treatment all along his life time. He has further stated that, on the basis of guidelines for the evaluation of permanent disability by American Medical Association, he has assessed disability and neural impairment after 2 years of injury is very less likely to improve and disability of 85%, which he has assessed, whole body is likely to be permanent and only minimal changes may happen, but, it is not certain and the disability, which he has assessed his spinal disability with respect to the whole body. It is also pertinent to note here that, during the course of evidence, the Petitioner has appeared before this Tribunal in a wheel chair and he has totally immobilized. Further, in the said road traffic accident, he had sustained fracture of cervical spine and due to which, he is not in a position to do anything and he is suffering from quadriplegia and he has lost sensation of his both upper and lower limbs and no control over urine and bowl and even he cannot move. From this, it appears that, the Petitioner has lost sensation of his important organs. Furthermore, admittedly, after the accident, he has terminated from the service and the Company, wherein, he was working at the time of accident, has also settled his service benefits as full and final settlement, which is clear from the evidence of P.W.3. In this regard, the P.W.3 has stated that, their Company has settled a sum of Rupees 6,61,371/- towards full and final settlement of the Petitioner, which includes salary from the month of January 2009 to September 2009, leave encashment, Leave travel allowance and gratuity, compensation amount of humanitarian grounds. Further, the R.W.1 has clearly stated in 30 (SCCH-7) M.V.C.NO.3955/2009 his cross-examination that, since the Petitioner was not done minimum agency business, i.e., LIC, i.e., minimum policy and some assured amount of Rupees 1,00,000/- was not done by the Petitioner, he was terminated from the agency. He has further clearly stated that, they have terminated the Petitioner on 26.03.2009. From this material evidence, it is made crystal clear that, due to the accidental injuries, the Petitioner has lost his service, LIC Agent work, earning capacity, income and also entire physical strength. Further, the P.W.1 in his cross-examination has clearly stated that, cathetor has to be changed every 4 weeks. Though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth about such extent of permanent disability as stated by the P.W.2. Further, the P.W.1 has clearly denied the suggestion put to him that, the disability will not exceed 10% to the whole body. From this, it is made crystal clear that, though the Petitioner had taken timely proper and required treatment, the accidental injuries not yet recovered and due to the said accidental injuries, he has lost his sensation in both upper and lower limbs and no control over urinary bowl. More so, the P.W.2 in his cross- examination has clearly stated that, the Petitioner has to take treatment all along his life time. Therefore, the disability of 85% to the whole body of the Petitioner as stated by the P.W.2 is not an exorbitant or exaggeration and not a higher side. Based on the above said reasons, this Tribunal has come to the conclusion that, due to the accidental injuries, the Petitioner is suffering from permanent physical disability of 85% to the whole body, which is acceptable and believable.
31(SCCH-7) M.V.C.NO.3955/2009
31. No doubt, this Tribunal has come to the conclusion that, due to the accidental injuries, the Petitioner is suffering from permanent physical disability of 85% to the whole body. But, based on the same, it cannot be said that, the said permanent physical disability of 85% is also caused functional disability of 85%, i.e., same extent, in the future life of the Petitioner, as, it is clear from the evidence of P.W.1 and P.W.3 and from the contents of Ex.P.7 Discharge Summary that, after the accident, due to the accidental injuries, the Petitioner become quadriplegic and immobilized and he has to lead his entire life on bed and he entirely depending upon the attendants. Further, it is clear from the evidence of P.W.1 and P.W.3 as well as the contents of material documents produced by the Petitioner relating to his job that, he had given salary hike and promotions in short duration of his service time and he had already lost his job. More so, the Petitioner was 36 years old at the time of accident and he is having a wife and minor daughter. Hence, based on the age, line of treatment, nature of injuries and physical and functional status of the Petitioner and dependency after the accident, this Tribunal feels that, the said extent of 85% permanent physical disability to the whole body affects the Petitioner to do his normal and functional activities and it restricted to do his entire functional activities. Hence, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent functional disability of 100% to the whole body, which is acceptable one. Therefore, the permanent physical and functional disability of the Petitioner is considered as 32 (SCCH-7) M.V.C.NO.3955/2009 100% to the whole body. Hence, the Petitioner is entitled for loss of future income arising out of the permanent physical and functional disability of 100%.
32. As this Tribunal has already observed that, the age of the Petitioner was 36 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 15. Therefore, the loss arising out of the said 100% disability for monthly income of Rupees 27,867/- by applying multiplier 15 comes to Rupees 50,16,060/-, i.e., (Rs.27,867/- x 12 x 15 x 100%). Hence, the Petitioner is entitled for a sum of Rupees 50,16,060/- towards loss of future earning arising out of 100% disability.
33. As per Ex.P.5 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained post traumatic quadriparetic secondary to C6-7, C5-6 fracture dislocation, which is grievous injury. The Petitioner was in the Hospital as an inpatient from 22.08.2008 to 09.12.2008, i.e., for 110 days and now also he is suffering from pain, which is clear from the evidence of P.W.1 and P.W.2. Due to the said grievous injuries, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment and now also he is suffering from a lot of pain and agony, both physical and mental. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 2,50,000/- towards pain and suffering.
33(SCCH-7) M.V.C.NO.3955/2009
34. No doubt, the Petitioner was in the Hospital as an inpatient from 22.08.2008 to 09.12.2008, i.e., for 110 days, to take treatment to the said accidental injury, which is grievous in nature and he could not do any work during the course of treatment and even he cannot do any work during his remaining entire life. But, based on the same, it cannot be said that, the Petitioner had deprived the income during the course of treatment, as, Ex.P.20 Bank Statement disclosed that, the Petitioner has received the salary even after the accident, i.e., Rupees 24,593/- in the month of August 2008, Rupees 17,095/- in the month of September 2008, Rupees 16,780/- in the month of October 2008, Rupees 8,764/- in the month of November 2008 and Rupees 16,777/- in the month of December 2008. The same has also been clearly stated by the P.W.3 in his evidence. Therefore, the Petitioner is not entitled for any compensation towards loss of income during the laid up period.
35. As it is already observed that, the age of the Petitioner was 36 years. Hence, the Petitioner has to lead remaining his entire life with 100% permanent physical and functional disability, which comes in the way of enjoyment of his entire life and he has to suffer future unhappiness. Therefore, it is just and proper to award a sum of Rupees 50,000/- towards loss of amenities of life and future unhappiness, to the Petitioner.
36. The Petitioner had suffered post traumatic quadriparetic secondary to C6-7, C5-6 fracture dislocation, 34 (SCCH-7) M.V.C.NO.3955/2009 which is grievous in nature and he was in the Hospital as an inpatient for 110 days and he cannot do any work due to the said accidental injuries and he has lost everything. Further, that accidental injuries leads shortening of life time of the Petitioner and he has to suffer shortening of lifespan. Therefore, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 25,000/-, towards shortening of life span on account of injury.
37. The P.W.1 has stated that, he had spent Rupees 17,570/- towards operation and Hospital charges apart from medicines. He has further stated that, he has spent more than Rupees 10,00,000/- towards Hospitalization and in the Hosmat Hospital, the patient bill of Rupees 8,71,022/- and the entire bill was paid by his employer and the remaining bills and medicines and physiotherapy charges are borne by him. In this regard, the P.W.3 has stated that, the employees of their Company covered under personal accident scheme and as per the scheme, the Insurance Company has paid Rupees 2,00,000/- and remaining amount of Rupees 6,71,022/- Hospitalization (inpatient) was paid by their Company to the Hosmat Hospital directly. From the said evidence, it appears that, part of the medical expenses incurred by the Petitioner for his treatment, was borne by his employer. The Petitioner has only produced Ex.P.9 Medical Bills 205 in numbers, which is amounting Rupees 66,097-28, Ex.P.25 Medical prescriptions 3 in numbers, Ex.P.23 Physiotherapy Bills 15 in numbers, which is amounting Rupees 89,000/-, Ex.P.34 Medical Bills 13 in numbers, which is amounting Rupees 14,243-60.
35(SCCH-7) M.V.C.NO.3955/2009 Considering the nature of the injuries sustained by the Petitioner in the said road traffic accident and line of treatment given to him, the possibility of spending the said amount for the medicines and treatment covered under Ex.P.9, Ex.P.23 and Ex.P.34 cannot be doubted. The amount covered under Serial No.10, 11, 186 to 188, 190, 192, 194, 199 and 200 or Ex.P.9 Medical Bills are relating to other than medicines and as such, the amount covered under the said serial number bills, i.e., totally, Rupees 235-87 (Rupees 52.50 + 28.50 + 16/- + 20/- + 13/- + 4/- + 13/- +26/- + 8/-) should be deducted in the total amount of Ex.P.9 Medical Bills, i.e., Rupees 66,097-28, which comes to Rupees 65,625-54. Therefore, it is necessary to award the said actual medical expenses of Rupees 65,625-54, 89,000/- and 14,243-60, in total, Rupees 1,68,869-14, which is rounded off Rupees 1,68,870/-, to the Petitioner.
38. No doubt, the P.W.2 in his cross-examination has stated that, it is not necessary to remove the implants during his life time. But, based on the said evidence, it cannot be come to the conclusion that, the Petitioner is not required future medical treatment and assistance as both the P.W.1 and P.W.2 in their evidence have clearly stated that, the Petitioner is required regular medical treatment and assistant throughout his life. The P.W.1 has stated that, still he is in cathedral and the cathedral requires to be changed every week by the Doctor and besides to this, blood test (PTINR) to be done every week. He has further stated that, he needs physiotherapy every day and every day physiotherapist has to 36 (SCCH-7) M.V.C.NO.3955/2009 come to his house and in this regard, he has to spend money throughout his life. He has further stated that, till today, he is taking follow-up treatment to control further deterioration in his health condition and as he is bed ridden, the Doctor is visiting to his home for treatment as well as for change of Catheter, which cost about Rupees 300/- per unit apart from Doctor fee and the catheter will lasts for only one week and this will continue until his lifetime. He has further stated that, still he is taking physiotherapy, which also cost Rupees 500/- per citing. He has further stated that, he under cathedral and it has to be changed frequently and he is totally immobilized and hence, for change of cathedral and urine bag either Doctor or Nurses have to visit his house and each time for change of cathedral and urine bag, he has to spend Rupees 1,000/-. He has further stated that, from August 2009 and onwards Dr.Jagadish Physiotherapist doing physiotherapy to him till today and Dr.Jagadish is visiting to his house every day for physiotherapy and for each visit, he is paying him Rupees 200/-. He has further stated that, he has to go for changing of cathedral and urine bag and in this regard, he is pending Rupees 2,000/- per month and he has to take medicines every day and in this regard, he has to spent about Rupees 1,500/- per month, every week PTNR blood reports has to be taken and its charges is Rupees 350/- per week. He has further stated that, he had consulted Doctors at BGS Global Hospital at Bangalore and after verifying his case history, the Doctors have recommended for Stem Cell therapy and that, would cost approximately Rupees 5,50,000/-. He has further stated that, the Doctor has stated that, there is no 37 (SCCH-7) M.V.C.NO.3955/2009 other definitive treatment option and hence, the Sem Cell Therapy is the only a last hope in his life and he has to spent huge amounts towards medicine, physiotherapy and for lively hood etc., throughout his life. The P.W.2, who is a treated Doctor, has stated that, at present, the Petitioner is in wheel chair bound with no movements (Grade 0/5) in both lower limbs, minimal movements in bilateral upper limb proximally with wrist being very weak (1/5 power) and grip is not possible and he has not urinary control, has no sensation of bowels and is on urinary catheter and he needs help for all his day to day activities. He has further stated in his cross-examination that, the Petitioner has no urinary sensation and catheter has to be changed regularly and he has to take treatment all along his lifetime. The Petitioner has produced Estimation in respect of further surgery, which is amounting of Rupees 5,50,000/- and Ex.P.38 Letter dated 11.11.2014 issued by Prasad Clinic, which disclosed that, the Petitioner is suffering from post traumatic quadriplegia, i.e., no sensation on both upper and lower limbs and no control over urine and bowel and he has nerurogenic bladder, which requires changes in urinary catheter every week and the profession charges including necessary consumables is approximately Rupees 900/- for each catheter change and he also require his blood test (PTINR) to be done every week, this may cost approximately Rupees 350/-. As this Tribunal has already come to the conclusion that, due to the accidental injuries, the Petitioner totally immobilized and he lost of power and sensation him his both upper and lower limb. The same is very much clear from Ex.P.24 Photographs. The said evidence of 38 (SCCH-7) M.V.C.NO.3955/2009 P.W.1 and P.W.2 and contents of Ex.P.12 and Ex.P.38 are reliable and acceptable one. Hence, the Petitioner is very much required future medical treatment and assistant throughput his life. By considering the same, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 1,00,000/- towards future medical expenses. By keeping the said amount of compensation in Fixed Deposit in his name, in any nationalized Bank of his choice, the Petitioner can very well meet the said future medical expenses throughout his life time. Therefore, a sum of Rupees 1,00,000/- is awarded towards future medical expenses.
39. The P.W.1 has stated that, he had spent more than Rupees 1,50,000/- towards conveyance, attended charges and nourishments and he had engaged one servant by name Sathish and he used to pay Rupees 3,500/- with food and accommodation for about 8 months and due to financial problems and burden, he terminated the services of the said Sathish and he is taken care by round the clock by his wife. The Petitioner has only produced Ex.P.11 Taxi Bills 2 in numbers, which is amounting of Rupees 350/-. As this Tribunal has already come to the conclusion that, due to the accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 100% to the whole body and he has lost complete loss of power and sensation in his both upper and lower limbs and he is totally immobilized. The Petitioner was taken treatment as an inpatient for 110 days. To save his health and life, the Petitioner is very much required nourishing food and diet. He cannot move without 39 (SCCH-7) M.V.C.NO.3955/2009 the assistance of attendant. By considering these facts and aspects, it is necessary to award a sum of Rupees 50,000/- towards conveyance charges, Rupees 1,00,000/- towards attendant charges and Rupees 50,000/- towards food, nourishment and diet charges etc.,
40. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl.No Compensation heads Compensation
. amount
1. Loss of future income Rs. 50,16,060-00
arising out of 100%
Disability
2. Pain and sufferings Rs. 2,50,000-00
3. Loss of amenities of life Rs. 50,000-00
and future unhappiness
4. Shortening of life span Rs. 25,000-00
on account of injury
5. Actual medical expenses Rs. 1,68,870-00
6. Future medical expenses Rs. 1,00,000-00
7. Conveyance Rs. 50,000-00
8. Attendant Charges Rs. 50,000-00
9. Food, Nourishment & Rs. 1,00,000-00
Diet charges
TOTAL
Rs. 58,09,930-00
41. In all, the Petitioner is entitled for total
compensation of Rupees 58,09,930/- along with interest at the rate of 6% per annum on the above said sum (excluding future medical expenses of Rupees 1,00,000/-) from the date of Petition till payment.
40(SCCH-7) M.V.C.NO.3955/2009
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Lorry bearing Registration No.TN-4-D-1047 as well as its driver, are very much involved in the road traffic accident, wherein, the Petitioner had sustained severe grievous injuries. The Petitioner in the cause title of the petition has also clearly mentioned that, the Respondent No.1 is an owner and the Respondent No.2 is an insurer of the said offending Lorry bearing Registration No.TN-4-D-1047 at the time of accident and which was having a valid Insurance Policy from 28.06.2008 to 27.06.2009. The Respondent No.2 has produced Ex.R.1 Insurance Policy relating to the said offending Container Lorry, which disclosed that, at the time of accident, the Respondent No.1 was an owner and the Respondent No.2 was an insurer of the said offending Container Lorry and the Insurance Policy relating to the said offending Container Lorry is valid, which covers the date of accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was a registered owner and the Respondent No.2 was an insurer of the offending Lorry bearing Registration No.TN-4-D-1047. The violation of the terms and conditions of Ex.R.1 Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. There is no allegation leveled as against the driver of the offending Container Lorry in Ex.P.6 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive the said class of vehicle. Under such circumstances, the Respondent No.1 being a registered owner and the Respondent No.2 being an insurer, are jointly and 41 (SCCH-7) M.V.C.NO.3955/2009 severally liable to pay the above said compensation and interest to the Petitioner. Since, the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. Hence, Issue No.2 is answered accordingly.
43. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 58,09,930/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 1,00,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of Petitioner through account payee cheque, on proper identification.
42(SCCH-7) M.V.C.NO.3955/2009 Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open Court on this the 17th day of April, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : K.S.Muralidhar
P.W.2 : Dr. N.C.Prakash
P.W.3 : Lakshmi Narasimhan
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : C.C. of FIR
Ex.P.2 : C.C. of Complaint
Ex.P.3 : C.C. of Mahazar
Ex.P.4 : C.C. of IMV Report
Ex.P.5 : C.C. of Wound Certificate
Ex.P.6 : C.C. of Charge Sheet
Ex.P.7 : Two Discharge Summaries
Ex.P.8 : 3 MIR Reports
Ex.P.9 : Medical Bills
Ex.P.10 : 2 Lab Reports
Ex.P.11 : 2 Taxi Bills
43
(SCCH-7) M.V.C.NO.3955/2009
Ex.P.12 : Estimation in respect of further
Surgery
Ex.P.13 : Appointment Letter
Ex.P.14 : Promotion Intimation Letter
Ex.P.15 : Probationary Appointment Letter
Ex.P.16 : Confirmation of Appointment Letter
Ex.P.17 : Promotion Letter
Ex.P.18 : Promotion Letter
Ex.P.19 : 29 Pay Slips
Ex.P.20 : Bank Statement of Account
Ex.P.21 : Licence Certificate issued by LIC
Ex.P.22 : TDS Certificate
Ex.P.23 : Physiotherapy Bills
Ex.P.24 : Positive Photographs
Ex.P.24(a) : CD of Photographs
Ex.P.25 : Medical Prescriptions
Ex.P.26 & 27 : Inpatient Records
Ex.P.28 : Out Patient Records
Ex.P.29 : 50 X-ray films
Ex.P.30 : Notarized copy of SSLC Marks Card
Ex.P.31 : Notarized copy of Provisional
National Trade Certificate
Ex.P.32 : Settlement of Dues Letter
Ex.P.33 : Statement of Bank Account
Ex.P.34 : Medical Bills
Ex.P.35 : C.C. of Identity Card
Ex.P.36 : Letter issued by ROC
Ex.P.37 : Form No.16 for Assessment Year
2008-2009
Ex.P.38 : Letter dated 11.11.2014 issued by
Prasad Clinic
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : S.Prabhakar
R.W.2 : Udaya Shankar.R.
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Copy of Policy
Ex.R.2 : Authorization Letter
Ex.R.3 : Statement of Account relating to
Muralidhar K.S.
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(SCCH-7) M.V.C.NO.3955/2009
Ex.R.4 : Statement of Status Report of MLC
pertaining to the Petitioner
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
45
(SCCH-7) M.V.C.NO.3955/2009
AWARD
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BANGALORE CITY M.V.C.No.3955/2009 K.S.Muralidhar, S/o K.S.Sampath Kumar, Aged about 37 years, R/at No.3/13, 1st Floor, 3rd Cross, BSK 3rd Stage, Hoskerehalli, ..... PETITIONER Bangalore-560 085.
(By Sri. L. P. Suresh, Adv,.) V/s
1. Smt.R.Subbulakshmi, W/o Radhakrishnan, Aged about 35 years, R/at No.25, Ramanujam Street, Rajakadai, Tiruvallur District, Tamilnadu-600 019.
(Owner of the Container Lorry Bearing Reg.No.TN-04-D-1047)
2. The New India Assurance Company Ltd., R.O.No.2B, Unity Building, Annex Mission Road, ....RESPONDENTS Bangalore-27.
(Policy issued by Chennai Office, No.2, 1,Thiruvottiyur High Road, II Floor, Tondiarpet, Chennai-21 in Policy No.710203/31/08/00004526 valid from 28.06.2008 to 27.06.2009) (R1 - Exparte) 46 (SCCH-7) M.V.C.NO.3955/2009 (R2 - By Sri. V. Subramani, Adv.,) WHEREAS, this petition filed on by the Petitioner/s above named U/s.166 of the M.V.Act praying for the compensation of Rs. (Rupees ) for the injuries sustained by the Petitioner/ Death of in a Motor Accident by Vehicle No. WHEREAS, this claim petition coming up before Indira Mailswamy Chettiyar, IX Addl.Small Causes Judge & XXXIV ACMM. Judge, Member, Bangalore, in the presence of Sri./Smt. Advocate for Petitioner/s and of Sri./Smt. Advocate for respondent.
ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 58,09,930/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 1,00,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the
said compensation and interest in this
47
(SCCH-7) M.V.C.NO.3955/2009
Tribunal within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Given under my hand and seal of the Court this day
of 2015.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL
METROPOLITAN AREA: BANGALORE.
By the
Petitioner/s Respondent/s
No.1 No.2
Court fee paid on
Petition
Court fee paid on Power
Court fee paid on I.A.,
Process
Pleaders Fee
Total Rs.
Decree drafted Scrutinized by MEMBER, MACT,
METROPOLITAN AREA:
B'LORE
Decree Clerk SHERISTEDAR
48
(SCCH-7) M.V.C.NO.3955/2009
17.04.2015.
Judgment pronounced in open Court
(vide separate Order)
The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby rejected.
No order as to costs. The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 58,09,930/- with interest at the rate 49 (SCCH-7) M.V.C.NO.3955/2009 of 6% p.a. (excluding future medical expenses of Rupees 1,00,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal within one month from the date of this Order.
In the event of deposit of compensation and interest, 50% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 50% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
50(SCCH-7) M.V.C.NO.3955/2009