Bangalore District Court
Mr.Hanumappa @ Hanumanthappa vs Cholamandalam M.S on 25 May, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
Dated this the 25th day of May 2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C No.2646/2015
Petitioner: Mr.Hanumappa @ Hanumanthappa,
S/o Hanumanthappa,
Aged 50 years,
R/at C/o Patelappa,
NO.5/95, Puttenahalli,
Byraveshwara Temple Road,
Yelahanka,
Bangalore -560 064.
(By Sri. B.S.Devaraju , Advocate.)
-Vs-
Respondents: 1. Cholamandalam M.S.,
Gen.Ins. Co.Ltd.,
T.P.Claims Hub,
Golden Heights(Star Bazar
Building), 6th floor,
59th Cross, 4th 'M' block,
Dr.Rajkumar Road,
Near Sujatha Theatre,
Bangalore -560 010.
(Policy NO.3373/00418737/000/00
Period of Insurance from
30/11/2014 to 29/11/2015)
SCCH-1 2 MVC No.2646/2015
(By Sri K.Suresh, Advocate)
2. The Chairman & Managing
Director,
M/s. Sindhu Cargo Services Ltd.,
No.111 & 114, Connection Point,
1st floor, Airport Exit Road,
Bangalore -560 017.
.. Exparte
JUDGMENT
The petitioner has filed this petition under Section 166 of the of the Motor Vehicles Act, 1989 seeking compensation of Rs.6,00,000/- for the injuries sustained by him in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the petitioner that on 03.06.2015 at about 09.00 a.m. when the petitioner was crossing the Major Sandeep Unnikrishna road, opposite Karnataka Bank, Yelahanka, Bangalore, at that time all of a sudden the driver of mini bus drove the same in high speed and SCCH-1 3 MVC No.2646/2015 in a rash and negligent manner and without observing the traffic norms came from D.B.Pura road and proceeded towards Dairy circle and came on extreme right side of the road and lost control over his vehicle and dashed against the petitioner from right side. Due to the tremendous impact the petitioner fell down on the road and sustained grievous injuries to nose, fore-head and chest.
3. Immediately after the accident he was shifted to Navachethana hospital, wherein first aid treatment was given to him and then shifted to Shushrusha Nursing home and took treatment as inpatient. It is the contention of the petitioner that still he is bed ridden and under treatment and so far has spent Rs.60,000/- towards medical, conveyance and nourishment expenses. Before the accident petitioner was aged 50 years and was working as Security Guard and was earning Rs.7,500/p.m. Due to the accident he has lost all his income and he has suffered permanent disability. The SCCH-1 4 MVC No.2646/2015 accident was occurred due to the rash and negligent driving of the driver of the offending vehicle bearing No. KA-03-D-7503. The first respondent is the insurer and second respondent being the owner of the offending vehicle bearing NO. KA-03-D-7503 are jointly and severally liable to pay the compensation of Rs.6,00,000/-.
4. In pursuance of this claim petition, this Court has issued notice against the respondents. Respondent No.1 appeared through his counsel and filed written statement. Respondent NO.2 has not chosen to appear before the Court and he was placed exparte.
5. Respondent No.1 has filed written statement denying the petition averments. It has admitted the issuance of policy in respect of the Mini bus bearing NO. KA-03-D-7503 and the liability if any subject to the terms and conditions of the policy. It is further contended that the first respondent reserves its right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest SCCH-1 5 MVC No.2646/2015 the proceedings under section 170 of M.V.Act. It is further contended that the second respondent owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158(6) of M.V.Act. The compensation claimed by the petitioner is excessive and exorbitant .
6. The respondent NO.2 has filed written statement denying the petition averments. He has further contended that the petitioner has not come to this Court with clean hands and has suppressed material facts while making an exorbitant claim. This respondent has denied the fact of involvement of the vehicle in the accident, date, time and mode of accident, injuries sustained by the petitioner , avocation and income of the petitioner. The bus bearing NO. KA-03-D-7503 is insured with the first respondent and it is liable to pay the compensation to the petitioner and this respondent is not SCCH-1 6 MVC No.2646/2015 liable to pay any compensation to the petitioner. Hence, prays to dismiss the petition.
7. Based on the pleadings this Court has framed the following:-
ISSUES
1. Whether the petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that occurred on 03.06.2015 at about 09.00 a.m. on Major Sandeep Unnikrishnan Road, Opposite Karnataka Bank, Yelahanka, Bangalore within the jurisdiction of Yelahanka Traffic Police station on account of rash and negligent driving of the Mini Bus bearing registration No. KA-03-D-7503 by its driver?
2. Whether the respondent NO.1 proves that the accident occurred on account of negligent act of the petitioner ?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4. What order?
8. The petitioner in order to prove his case, he examined himself examined as PW1 and has examined SCCH-1 7 MVC No.2646/2015 two witnesses as PW2 and 3 and they have got marked the documents at Ex.P.1 to 15. The respondents have examined two witnesses as RW-1 and 2 and have got marked one document at Ex.R.1 and 2.
9. I heard the arguments of petitioner counsel and respondents counsel.
10. Having heard the arguments based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the negative
3) Issue No.3 ... Partly in the Affirmative,
4) Issue No.4 ... As per final order
for the following:-
REASONS
11. Issue No.1 and 2: These two issues are inter- connected to each other and they are taken up together for discussion in order to avoid repetition.
12. It is the case of the petitioner that on 03.06.2015 at about 09.00 a.m. when he was crossing SCCH-1 8 MVC No.2646/2015 the Major Sandeep Unnikrishna road, opposite Karnataka Bank, Yelahanka, Bangalore, at that time all of a sudden the driver of mini bus drove the same in high speed and in a rash and negligent manner and without observing the traffic norms came from D.B.Pura road and proceeded towards Dairy circle and came on extreme right side of the road and lost control over his vehicle and dashed against the petitioner from right side. Due to the tremendous impact the petitioner fell down on the road and sustained grievous injuries to nose, fore-head and chest.
13. The petitioner in order to prove his case he examined himself as PW-1 and he reiterated the averment of the petition in his affidavit evidence and also he has got marked copy of FIR, sketch, mahazar, IMV report, wound certificate , charge sheet as Ex.P.1 to
6. He was subjected to cross-examination. In the cross- examination, it is elicited that the accident was taken place in the morning at 9 a.m. and heavy vehicle ply in SCCH-1 9 MVC No.2646/2015 that road. It is suggested that he did not observe the bus while crossing the road and the same was denied. It is admitted that there was no any zebra cross. It is further suggested that while crossing the road himself fell down on the road median and sustained injuries and mini bus not dashed against him and the said suggestion was denied. It is admitted that the police have shifted him to hospital and Police have recorded his statement. It is admitted that he was in the hospital as inpatient for a period of one month and he was subjected to surgery.
14 The respondents have examined the Asst. Manager of the insurance company as RW-1 and in his evidence he says that as per the sketch the negligence was on the part of the petitioner who was crossing the road negligently and without observing traffic rules and regulations and by crossing the road where there was no zebra crossing and hence, accident was occurred due to the sole negligence on the part of the petitioner himself. He was subjected to cross-examination. In the cross- SCCH-1 10 MVC No.2646/2015 examination, it is elicited that he did not witness the accident and also he has not seen the place of accident and he is giving evidence based on the records. It is admitted that accident was occurred in the Yelahanka and Doddaballapura main road and injured was crossing the main road and as per the sketch there is no any sky walker or underpass near the place of accident. It is further admitted that the police have filed charge sheet against the insured vehicle driver.
15. The respondents have also examined the driver of the offending vehicle as RW-2 and in his chief examination he has stated that he was driving the mini bus from Doddaballapura side and took turn towards Dairy cross at Yelahanka new town, at that time one Hanumanthappa suddenly tried to cross the road and there was no any zebra cross and hence, accident took place. It is elicited that he was driving the mini bus at the speed of 35 kms per hour and the height of road is around one feet. He was subjected to cross-examination. SCCH-1 11 MVC No.2646/2015 In the cross-examination, it is elicited that accident was occurred in the main road and it is two way and the width of the road is around 60 feet. It is admitted that while taking the right turn, one has to slow down the vehicle and should show signal or indicator. It is also admitted that Yelahanka Police after investigation have filed a charge sheet against him and he has pleaded guilty in the criminal case and paid fine of Rs.2000/-. It also admitted that he has suspended his licence for a period of 3 months and at the time of obtaining the licence the licensing authority have given instruction to shift the injured to hospital immediately after the accident and also to intimate the accident to the nearest police station. It is also admitted that the Company Manager after the IMV inspection has got released the vehicle by executing an Indemnity Bond. He has not given any complaint in writing making the allegation against the said Hanumanthappa that he suddenly tried SCCH-1 12 MVC No.2646/2015 to cross the road and there is no any underpass or sky walker near the place of accident.
16. Now, let me appreciate both oral and documentary evidence available before the Court regarding negligence is concerned. Before appreciating the evidence, I would like to make a mention of the very contention taken by the petitioner. The petitioner Counsel has relied upon the judgment reported in 2013 ACJ 1882 (United India Insurance Co.Ltd. Vs. N.Srinivas Goud and others). The Hon'ble High Court held that "Van driven on wrong side of the road dashed against moped resulting in death of 3 persons, insurance company disputes its liability on the ground that van was not involved in the accident and it was implicated by Police as an afterthought. This Judgment is not applicable to the case on hand, for the reason that the respondents have not disputed the very involvement of the vehicle in the accident.
SCCH-1 13 MVC No.2646/2015
The petitioner counsel also relied upon the judgment reported in 2014 ACJ 2550 (Kiran Vs. Sajjan Singh and others). The Apex Court in this judgment held that :
"No evidence of negligence on the part of motor cyclist-Apex Court reversed the fining of negligence and held that tractor driver was solely responsible for the accident as he was driving a heavier vehicle".
On the other hand, the respondent counsel has relied upon the judgment reported in ILR 2004 Kar.1104 (Koosappa Poojari Vs. K.Sadabba and others) wherein it is held that :
"Claimants had crossed the road where he was not supposed to cross- Held- Certain degree of contributory negligence will have to be attributed to him -If a pedestrian is crossing over a road way at any place other than which is meant for pedestrian crossing, he can not claim any specific precedence and the responsibility for causing the accident-pedestrian has to share the negligence along with the driver.SCCH-1 14 MVC No.2646/2015
The counsel also relied upon ILR 1998 Kar.1934 (Shri Narasimhaiah Vs. The General Manager and another). In this judgment the Hon'ble High Court of Karnataka held that " pedestrian crossing the road at a point where he ought not to have done, tribunal held Appellants negligence which contributed to the accident was 60% and in Appeal the Court held that it could be only 40%.
17. In keeping the contentions urged by both the Counsels, this Court has to appreciate the facts of the case. Admittedly, the petitioner is a pedestrian who has crossed the road and in the cross-examination, he admits that there was no any zebra crossing. It is suggested that while crossing the road he himself fell down on the road median and sustained injuries and mini bus has not dashed against him and the said suggestion was denied. In the cross-examination of PW-1 except suggesting that he himself fell down on the road median and sustained injuries nothing is elicited from the mouth of PW-1 SCCH-1 15 MVC No.2646/2015 injured. The respondents have examined the Asst. Manager of the Insurance Company and in the cross- examination he categorically admits that the accident was occurred in the Yelahanka Dasarahalli main road and the injured was crossing the main road and as per the sketch, there is no sky walker or under pass near the place of accident and also he categorically admits that he did not witness the accident and also not seen the place of accident. He also admits that police have filed charge sheet against the insured vehicle driver. On perusal of the sketch, which is marked at Ex.P.2, it is clear that there is a double road and there is a road median and near the place of the accident there is cross road and no doubt there is no zebra crossing and respondents have not disputed the fact of crossing the road near the place of accident and also sketch which is marked at Ex.P.2 has not been disputed by the respondent and the driver of the mini bus who came on the left side of the road went towards the right side of the road and the SCCH-1 16 MVC No.2646/2015 pedestrian who is the petitioner had almost crossed the 28 feet of road from the end and inspite of which the driver of mini bus went towards wrong side i.e., right side and dashed against the pedestrian and in the cross- examination the driver of the offending vehicle has admitted that he has pleaded guilty in the criminal case and paid fine of Rs.2000/- and Yelahanka Police have suspended his licence for a period of three months. The sketch has not been disputed by the respondents and almost he has crossed the road and driver of the mini bus went towards wrong side instead of proceeding in his direction. In order to consider the contributory negligence there must be cogent evidence as held in the judgment reported in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )-No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied . Hence, I answer issue No.1 in the affirmative and issue No.2 in the negative. SCCH-1 17 MVC No.2646/2015
18. ISSUE No.3: It is the case of the petitioner that on account of the accident he has sustained grievous injuries. In order to substantiate his contention, he has got marked wound certificate at Ex.P.5 which discloses that the petitioner has suffered fracture of both maxilla, fracture of 10th and 11th ribs on left side. Doctor has opined the nature of the injury as grievous in nature. He was in the hospital as inpatient from 03.6.2015 to 08.06.2015 for a period of 6 days. He was subjected with ORIF. For having taken note of the grievous injuries sustained by the petitioner and he was inpatient for a period of 6 days and he was subjected to surgery, I am of the opinion that, he is entitled for compensation of Rs.40,000/- towards Pain and sufferings.
19. It is the case of the petitioner that he was working as Security Guard and earning Rs.7,500/p.m. He has not produced any document to prove the same. In the cross-examination, it is suggested that he was not earning Rs.7,500/p.m. and falsely claiming the same and SCCH-1 18 MVC No.2646/2015 the said suggestion was denied. It is admitted that now he is not working. As the petitioner has not produced any document regarding his salary, this tribunal has to take his income as Rs.7,000/p.m. He was inpatient in the hospital from 03.06.2015 to 08.06.2015 i.e. for a period of 6 days and even after hospitalization period also he was advised to take bed rest. For having taken note of the nature of the treatment since he was subjected to surgery and he has suffered the fracture of maxilla of both the sides and plate was inserted and he was unable to attend the duty for a period of 4 months and hence, I award Rs.28,000/- towards loss of income during the treatment period .
20. The petitioner in order to prove the disability he has examined the Doctor as PW2. In his evidence PW-2 says that petitioner has sustained fracture of maxilla, fracture of 10th and 11th ribs on left side. The petitioner complaints of pain in the upper jaw, mobility of the teeth, absent of teeth in lower jaw, unable to open the mouth. SCCH-1 19 MVC No.2646/2015 Hence, he has assessed the disability of Grade III mobility of teeth 10%, restricted mouth opening (2cm) 20%, Derangement of Occlusion 10%, Sensitivity of teeth 10%, absent of teeth 10% and in all total disability 60% and the disability to whole body is 20%. Further, he has advised the petitioner to undergo further surgery due to deviation of face and derangement of occlusion i.e., corrective surgery and removal of plate screws which is placed upper Jaw(Maxilla), the cost of surgery is around Rs.1,25,000/- to Rs.1,50,000/- in private hospital. He was subjected to cross-examination. In the cross- examination, it is elicited that he has not treated the patient and he has examined the patient on 16/2/2016 and prior to that he has not seen the patient. It is admitted that he has examined the patient only when the patient came for disability assessment. He further says the facture of maxilla is mal united and he cannot say whether the pain is permanent one but the nature of injury is Grade 3 injury. He further admits that he has SCCH-1 20 MVC No.2646/2015 not mentioned in his OPD card that the patient is unable to open the mouth but he has given the details in his affidavit. He also admits that he has assessed the disability based on the guidelines of American Maxilla Facio Surgeons Association. It is suggested that, in the guidelines there is no any ratio of disability and the same was denied. It is further suggested that there is no loss of teeth and the same was denied. Witness volunteers that he has lost two teeth in the lower jaw. He further admits that the petitioner cannot chew the hard substance. It is suggested that, no difficulty to discharge the duty as security guard and the said suggestion was denied. It is further suggested that he has not assessed the functional disability and the same is denied. It is suggested that he has assessed the disability on higher side and the said suggestion was denied. He says he cannot tell the exact cost of surgery and he has not given any estimation but approximately he has mentioned the cost. It is suggested that, petitioner is not in need of the SCCH-1 21 MVC No.2646/2015 surgery and only in order to help the petitioner, he is giving false evidence before the Court and the same was denied. It is suggested that he has not treated the patient and hence he is not competent to assess the disability and the said suggestion was denied.
21. Now, let me appreciate both the oral and documentary evidence regarding the nature of the injuries and the disability. On perusal of the wound certificate which is marked at Ex.P.5 it discloses that petitioner has sustained fracture of both maxilla, fracture of 10th and 11th ribs on left side and doctor has opined that the injuries are grievous in nature. Discharge summary which is marked as Ex.P.7 also discloses that the injury was diagnosed as Lefort I level fracture of bilateral maxilla. Petitioner under went ORIF surgery. Nasoendortracheal intubation done under GA and throat pack placed, standard skin prepation and draping done, B/L vestibular deglowing incision placed blunt dissection SCCH-1 22 MVC No.2646/2015 done to expose the fracture at legent I level bilaterally, fracture legent I exposed bilaterally, fracture reduced and fixation done with L plate 2mm at Zygomatic buttress & 1.5 m.m 2 holed plate with gap with corresponding screws bilaterally with teeth in occlusion, IMF released, occlusion checked, debridement of wound done. Regarding disability is concerned the doctor while assessing the disability in the affidavit he assessed the disability to whole body at 20%. It is important to note that the fracture is mal united.
22. It is important to note that the fracture is mal united and the injured was subjected to conservative treatment inrespect of fracture of ribs regarding the fracture of maxilla, he was subjected to surgery with ORIF and plating in respect of maxilla fractures and the doctor who has been examined as PW-2 is not the treated doctor. In the cross-examination, he SCCH-1 23 MVC No.2646/2015 admits that he assessed the disability only when the patient came for disability assessment but he claims nature of the injury is Grade III injury. He further admits that he has not mentioned in the OPD card patient is unable to open the mouth but he has given details in his affidavit and also he admits that he has assessed the disability based on the guidelines of American Maxilla Facio surgeons Association. It is also important to note that the injured has lost two teeth in the lower jaw and Doctor says that he cannot chew hard substance. The Counsel appearing for the respondent has relied upon the unreported judgment of Hon'ble High Court of Karnataka passed in M.F.A.No.2973/2005 and the Hon'ble High Court of Karnataka has observed that in case of clavicle and mandible fractures, there would be no consequence loss of future earning capacity. On the other hand, the counsel appearing for the petitioner has relied upon the judgment reported in 2011 AIR SCW 2609 and this judgment is inrespect of deformity of his SCCH-1 24 MVC No.2646/2015 left forearm wrist and hand and shortening of left upper limb and not inrespect of fracture of maxilla. The counsel appearing for the petitioner also relied upon the judgment 2010 ACJ 760 (N.Obalaranga Vs. United India Insurance O,Ltd. And another ) and in this judgment the Court has held that Court has to take note of loss of earning capacity due to permanent disability . The counsel also relied upon the judgment reported in 2007 ACJ 13 and held that :
"Loss of earning capacity -Coolie sustained injuries to her hip and leg, became invalid leading a life of total dependency-Medical evidence that injured suffered 65% functional disability to her left leg and 50% disability for whole body-injured cannot do the work any more-whether injured is entitled to compensation for loss of earning capacity at 100% disability and this judgment is also not applicable to the case on hand for the reason that in this case he has sustained fracture of maxilla and not inrespect of hip and leg.SCCH-1 25 MVC No.2646/2015
The counsel also relied upon the judgment reported in 2009 ACJ 334 regarding awarding rate of interest at 9%.
23. In keeping the principles laid down in the judgment and also the contentions raised by both the parties, this Court has to discuss regarding disability . On perusal of the wound certificate, which is marked at Ex.P.5 the petitioner has sustained fracture of both maxilla and fracture of 10th and 11th ribs on left side and question of assessing the disability to 10th and 11th ribs does not arise and also regarding fracture of both maxilla, the Hon'ble High Court of Karnataka held that regarding fracture of clavicle and mandible, there would be no consequence loss of future earning capacity. No doubt, Court has to take note of the nature of the injuries and severity of injury and the insured was subjected to surgery with ORIF with plating and the shape of the petitioner changed on account of the injuries regarding fracture of maxilla . He has taken conservative SCCH-1 26 MVC No.2646/2015 treatment in respect of ribs fractures. PW-2 has assessed the disability by taking note of the nature of the injury as Grade III injury and he has assessed the disability to whole body 20%. It is important to note that regarding fracture of both maxilla as held by the Hon'ble High Court of Karnataka there cannot be no consequences regarding the disability. Hence, I am of the opinion that it is a fit case to award global compensation instead of taking the disability. For having taken note of the nature of the injuries, fracture of both the maxilla and two ribs and he was subjected to surgery with ORIF and plating it is a fit case to award global compensation of Rs.1,00,000/- under the head of loss of discomfort, disfiguration of face, food and nourishment, conveyance, attendant charges and other incidental charges.
24. The petitioner has produced medical bills at Ex.P.10 to the tune of Rs.47,753/- and prescriptions at Ex.P.11. In the cross-examination, PW-1 admits that he has not taken follow up treatment. It is suggested that he SCCH-1 27 MVC No.2646/2015 is falsely claiming that he has spent an amount of Rs.75,000/- towards medical, conveyance and incidental charges and the said suggestion was denied. It is suggested that bills are created and produced to get more compensation and the same was denied. It is also admitted that doctor has not told for another surgery. On perusal of the bills, the inpatient bill amounting to Rs.30,750/- and advance of Rs.10,000/- is paid and the balance amount of Rs.20,000/- was received vide receipt 8.6.2015 and other bills are produced before the Court for purchasing of the medicines during the period of treatment as well as subsequent to discharge. I do not find any exaggeration in the medical bills and the same are supported by the medical prescriptions. Hence, I have accepted the claim of the petitioner to the extent of Rs.47,753/- and the same is rounded off to Rs.48,000/. Hence, I award Rs.48,000/- towards medical expenses.
25. Regarding future treatment is concerned the petitioner says he is in need of surgery due to deviation SCCH-1 28 MVC No.2646/2015 of face and derangement of occlusion i.e, corrective surgery and removal of plate screws which is placed upper Jaw(Maxilla). The cost of surgery is around Rs.1,25,000/- to Rs.1,50,000/- in private hospital. In the cross-examination, PW-2 says he cannot tell the exact cost of surgery and he has not given any estimation but approximately, he has mentioned the cost. It is suggested that petitioner is not in need of surgery and only in order to help the petitioner, he is giving false evidence before the Court and the said suggestion was denied. Discharge summary discloses petitioner under went surgery ORIF and wound debridement was done. For having considered the same when the PW-2 is not able to tell the exact cost and no estimation and deposed approximate cost and cost of Rs.1,25,000/- appears to be very exorbitant and version of PW-2 that fracture is mal united and petitioner has to undergo surgery due to deviation of dace and derangement of occlusioni.e, corrective surgery and removal of plate screws which is SCCH-1 29 MVC No.2646/2015 placed upper jaw, hence, I am of the opinion that the petitioner is entitled for compensation of Rs.35,000/- towards future surgery i.e, future medical expenses is just and proper.
26. The details of compensation, I propose to award are as under:
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000-00
2. Medical expenses Rs. 48,000-00
3. Loss of income during the Rs. 28,000-00
period of inpatient and period
of treatment.
4. Global compensation towards Rs. 1,00,000-00
loss of discomfort,
disfiguration of face and food
and nourishment,
conveyance , attendant
charges and other incidental
expenses
5. Future medical expenses Rs. 35,000-00
Total Rs. 2,51,000-00
SCCH-1 30 MVC No.2646/2015
27. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a. SCCH-1 31 MVC No.2646/2015
28. As regards the liability to be fixed on the respondents, admittedly the respondent No.1 is the insurer and respondent No.2 is the owner of mini bus bearing No. KA-03-D-7503, hence, both respondents are jointly and severally liable to pay compensation to the petitioner. However, primary liability is fixed on respondent No.1 to satisfy the award. Hence, this issue is answered accordingly.
29. Issue No.4: In the result, I proceed to pass the following: -
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for total compensation of Rs.2,51,000/-. He is entitled for interest at the rate of 9% per annum only on Rs.2,16,000/- from the date of petition till realization and petitioner is SCCH-1 32 MVC No.2646/2015 not entitled for interest on Rs.35,000/- awarded under the head of future medical expenses.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company and he is directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount to which the petitioner is entitled, 50% with proportionate interest shall be kept in F.D. in his name in any nationalized or scheduled bank of his choice for a period of 5 years with liberty to draw the accrued interest periodically and the remaining amount with proportionate interest is ordered to be released to him.
Advocate's fee is fixed at Rs.1000/-. SCCH-1 33 MVC No.2646/2015 Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 25th day of May 2016) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Hanumappa @ Hanumanthappa P.W.2 : Dr.K.M.Kumaraswamy P.W.3 : Dr.Kiran J.
Documents marked on behalf of the petitioners:
Ex.P-1 : Copy of FIR
Ex.P-2 : Copy of sketch
Ex.P-3 : Copy of mahazar
Ex.P-4 : Copy of IMV report
Ex.P-5 : Copy of wound certificate
Ex.P-6 : Copy of charge sheet
Ex.P-7 : Discharge summary
Ex.P-8 : Notarised copy of election identity
card (original compared)
Ex.P-9 : C.T.Scan report with Lab reports
Ex.P-10 : Medical bills
SCCH-1 34 MVC No.2646/2015
Ex.P-11 : Prescriptions
Ex.P-12 : X-rays(4)
Ex.P.13 OPD card
Ex.P.14 X-rays(7)
Ex.P.15 Case sheet
Witnesses examined on behalf of the respondents :
RW-1 Sunil Ramesh RW-2 V.Arokyaswamy
Documents marked on behalf of the respondents:
Ex.R.1 Copy of policy
Ex.R.2 Notarised copy of driving licence
(H.P.SANDESH)
Member, Prl., M.A .C.T. Bangalore