Bangalore District Court
Master.Vishwavijet vs ) Sri.Muniswamy.M.S on 5 December, 2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 5th DAY OF DECEMBER 2016
PRESENT; Sri.A.SAMIULLA B.Sc.,LL.B.,
XIX Addl SCJ & MACT.
MVC No.3786/2015
Petitioner : Master.Vishwavijet
S/o Dr.Basavaraj,
14 years,
Minor R/by next friend
Father Sri.Basavaraj
44 years, Occ: Doctor,
R/o Ashirvada Clinic,
Main Road, Kanakagiri, Tq:
Gangavathi, Dist:Koppal,
Now R/o. No.6, 5th Cross,
I.S.E.C, Main Road,
Nagarabhavai, Bangalore-72.
(By Sri.RS)
V/s
Respondents : 1) Sri.Muniswamy.M.S.
S/o Natarajan.M,
26 years,
R/o.N.94, Gangamma Temple,
Jalahalli, Bangalore-13.
SCCH 17 2 MVC3786/15
2) Sri.Vijayaraghavan.B,
S/o Balachandra.S
40 years,
R/o.G2-304, Sriram Shreyas
Telecom Layout, Kodigehalli,
Bangalore-97.
3) The Branch Manager,
United India Insurance
Co. Ltd., No.89/1, Sampige
Road, 11th Cross,
Malleswaram, Bangalore-03.
(R-1 & 2 by Sri.AS
R-3 ex parte)
J U D G M E N T
Petition is filed u/S 166 of MV Act seeking compensation of Rs.50,00,000/- for the injuries sustained in a road traffic accident.
2. Minor petitioner filed this petition through next friend father. He stated that on 27th day of September 2014 at quarter to nine in the night he visited Hotel Le SCCH 17 3 MVC3786/15 Meridien along with his relative Rajashekarayya Vastrad to attend Medical Conference. After conference, they waited for Chandrashekar and Avinash, in front of Hotel at Chowdaiah Circle on the left side of road, at that time a motorcycle, bearing No.KA-04/HQ-4626 came there from Basaveshwara Circle towards Windsor Manor Hotel in high speed, rash and negligent manner and hit him, due to impact he fell down and sustained grievous injuries. Immediately he was shifted to Mathas Hospital and then to Fortis Hospital, wherein he took treatment as inpatient. Jurisdictional Police registered case against the rider of motorcycle. First and second respondents are rider and owner of motorcycle, which is insured with the third respondent and they are liable to pay compensation.
SCCH 17 4 MVC3786/15
3. Learned advocate Sri.AS represents first and second respondent. Third respondent is placed ex parte. First respondent filed written statement.
First respondent by denying the petition averments in toto, inter alia contended that, he was holding valid driving licence and the motorcycle is insured with the third respondent and the policy is in force. Hence he prayed to dismiss the petition.
4. Based on said pleadings, following issues were framed:
ISSUES
1. Whether guardian of minor petitioner proves that on 27.09.14 at about 8.45 p.m. he was on the left side of road in front of Le.Meridian Hotel, T.Chowdaiah road, Bengaluru. At that time, a bike bearing No.KA-04/HQ-4626 came in high speed, rash and negligent manner dashed against the minor petitioner. As a result of which, he fell down and sustained injuries as alleged?
2. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or award?SCCH 17 5 MVC3786/15
5. In order to prove the case, the next friend of minor petitioner was examined as Pw.1 and documents Ex.P1 to 20 were examined. Doctor was examined as Pw.2 and documents Ex.P21 was marked. On the other hand the first respondent examined as Rw.1 and documents Ex.R1 & R2 were marked.
6. Heard arguments from both sides.
7. Answers to the above issues are as follows;
Issue-1: Affirmative.
Issue-2: Partly affirmative.
Issue-3: As per final order for the following;
R E A S O N S
8. Issue-1: Petitioner asserted that, he sustained injuries in a road traffic accident, which occurred due to the negligence of rider of motorcycle. Per contra first respondent denied it.
SCCH 17 6 MVC3786/15
To claim compensation u/S 166 of MV Act it is sine qua non to establish the negligence on the part of rider of motorcycle. The initial burden is always on the claimant, which is required to be proved by preponderance of probability and not beyond shadow of doubt as required in a criminal trial.
9. To discharge initial burden the next friend of minor petitioner filed evidence affidavit reiterating the petition averments. He specifically stated that the minor petitioner sustained injuries due to actionable negligence on the part of rider of motorcycle. In support of ocular version he places reliance on documents. Ex.P1 is report filed by the eyewitness Rajashekaraiah Vastrad, who was with minor petitioner at the time of accident, wherein he stated that, he and minor petitioner were standing on left side of road SCCH 17 7 MVC3786/15 at that time offending motorcycle came there ridden by its rider in high speed, rash and negligent manner and caused accident by dashing the minor petitioner. Ex.P2 is first information report registered by the Police on the basis of report lodged by Rajashekaraiah. Ex.P3 and 4 are site plan and spot panchanama prepared by the Police, wherein the topographical situation of place of accident and the exact place of accident is shown. Ex.P5 & 6 are Police notice given to the owner of motorcycle and its reply respectively. Ex.P7 is motorcycle, wherein damages suffered by the motorcycle are indicated. Ex.P8 is wound certificate issued by St. Marthas Hospital. Ex.P9 is wound certificate issued by Fortis Hospital. Ex.P10 & 11 are discharge summaries.
10. In cross-examination the Pw.1 stated that he has not witnessed the accident. It is suggested that, the minor SCCH 17 8 MVC3786/15 petitioner tried to cross the road suddenly in a place where there is no road crossing and due to his negligence the accident has taken place, he denied it. This suggestion is made without pleading the said fact in written statement. Except this suggestion, which is not substantive evidence absolutely nothing is elicited to disprove the case of petitioner.
11. On the other hand first respondent filed evidence affidavit reiterating the averments set out in written statement. He placed reliance on documents i.e., Ex.R1 is driving licence and Ex.R.2 is insurance policy.
12. In the backdrop of discussion supra let us analyse the factual scenario to ascertain at whose negligence the accident has taken place. In the instant case the spot SCCH 17 9 MVC3786/15 panchanama and site plan prepared by the police during the investigation of crime are not in dispute. Said documents depict the topography of place of accident and the true picture of accident. As per said documents the accident road is of 30 feet width and it is a one way rod runs in east- west direction. The exact place of impact is just three feet from the left side of road from east-west direction. Motorcycle came from eastern side proceeding towards western side of road. Though there was sufficient place on right side of road, still the motorcycle proceeds straight and caused accident by dashing the minor petitioner. The site map reveals that there was sufficient light in the place of accident where two electric poles are existed. In cross- examination of Pw.1 it is suggested that the minor petitioner tried to cross the road suddenly and due to his negligence SCCH 17 10 MVC3786/15 the accident has taken place. It is worth to note that there is no such pleading in the written statement. The evidence without pleadings is no use. In addition to this the first respondent in affidavit evidence has not stated said fact. Except denial of negligence attributed to the first respondent absolutely no contra material is placed on record to show that the accident was occurred under unavoidable circumstances or there is contributory negligence on the part of injured. The contention of petitioner that they were standing on the left side of road and at that time accident occurred due to high speed, rash and negligent riding of motorcycle by its rider is consistent with the documents relied by the petitioner. The facts situation on hand reveals that if the rider had ridden the motorcycle slowly and little carefully he could have avoided accident, which results in SCCH 17 11 MVC3786/15 injuries to the minor petitioner. This view is further fortified from the unchallenged report filed by the Police against the rider of motorcycle. Hence above issue is answered in affirmative.
13. Issue-2: The next friend of minor petitioner stated that his son sustained i) Head injury with (a) Sub Arachnoid Hemorrhage (b) comminuted fracture of nasal bones (c) walls of right and left maxillary sinus fracture (d) fracture of left orbital walls and adjacent zygma. ii) Multiple contusions of face and head, loss of teeth of upper & lower jaw. iii) Fracture of the right clavicle. iv) Blunt injury to chest and abdomen with left pneumothorax and Ascitis. v) Diffusal Axonal injury.
SCCH 17 12 MVC3786/15
14. Pw.2 stated that the injured was operated for several comminuted fractures of nasal bones and facial bones. The plastic Surgeon treated for the nasal deformity and left lower eye lid estropian, left zygoma and left maxillary fracture and scar on the face with four stage surgery i.e., Augmentation Rhinoplasty, left eye ectropian correction, correction of deformed zygoma(L) and maxilla and scar revision. He also underwent ORIF of fracture left zygomatic frontal buttress and left infraorbital and closed reduction of nasal bone fracture and soft tissue repair. Pw.2 stated that the injured suffered significant brain damage of 15 per cent and disfiguration of 20 per cent to the face and loss of four teeth and memory. He stated that the injured suffered disability of the brain at 15 per cent and disfiguration at 20 per cent to the face. In cross- SCCH 17 13 MVC3786/15 examination the Pw.2 stated that he has not treated the injured.
15. The evidence on record discloses that the minor suffered disability of the brain at 15 per cent and disfiguration at 20 per cent to the face. It is worth to note that in a decision reported in 2013 ACJ 2445 (Mallikarjuna V/s Divisional Manager, National Ins. Co. Ltd., and another), the Hon'ble Apex Court held that, assessment of compensation in case of children suffering disability the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc., should be, if the disability is above 10 per cent and up to 30 percent to the whole body Rs.3,00,000/- up to 60 per cent Rs.4,00,000/- up to 90 per cent, Rs.5,00,000/- and above SCCH 17 14 MVC3786/15 90 per cent it should be Rs.6,00,000/- for permanent disability up to 10 per cent it should be Rs.1,00,000/-.
16. In the instant case the injured suffered disfiguration of face at 20 percent. As per Section 142 (c) of MV Act permanent disfiguration of the head or face is permanent disability. In view of Master Mallikarjun case the petitioner is entitled for Rs.3,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc., and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization:
Injured petitioner was first admitted to Martha's Hospital SCCH 17 15 MVC3786/15 on 27.9.14 and shifted to Fortis Hospital, wherein he took treatment as inpatient from 28.9.14 to 10.10.14. He took treatment as inpatient for 13 days. During this period his parents suffered discomfort, inconvenience and loss of earnings as such Rs.25,000/- is awarded under this head. Medical and incidental expenses: Medical bills produced at Ex.P14 depict that Rs.3,90,560/- were incurred. Inpatient bill issued by Fortis Hospital is to the tune of Rs.3,52,169/-. Though Pw.1 was subjected to cross-examination but nothing is elicited to doubt the genuineness of medical bills. Thus petitioner is entitled for medical and other incidental expenses to the tune of Rs.3,90,560/-. Future medical expenses for plastic surgery and implantation of teeth and incidental expenses for such SCCH 17 16 MVC3786/15 treatment: Pw.1 stated that the minor injured has to undergo plastic surgery for correction of disfigurement and implantation of teeth. The documents Ex.P16 & 17 are issued by Fortis Hospital, wherein it is indicated that the cost of implantation of teeth is Rs.1,53,000/- and the cost of plastic surgery is Rs.2,00,000/-. The author of these documents who scribed them is not examined to prove the said documents. However, considering the fact that the injured required such treatment a sum of Rs.1,00,000/- is awarded under this head.
Petitioner is entitled for compensation under the following heads:
a) Pain & suffering already undergone & to be Rs.3,00,000/-
suffered in future, mental and physical shock, hardship, inconvenience & discomfort and loss of amenities in life on account of permanent disability.
SCCH 17 17 MVC3786/15
b) Discomfort, inconvenience and loss of earnings to Rs. 25,000/-
the parents during the period of hospitalization towards medical expenses.
c) Medical and incidental expenses during the Rs. 3,90,560/-
period of hospitalization.
d) Future medical expenses for removal of implant Rs.1,00,000/-
and incidental expenses for such treatment.
Total Rs.8,15,560/-
17. Liability: Second and third respondents are the owner and insurer of offending motorcycle respectively. Insurer is placed ex parte. First respondent being the rider of motorcycle at the time of accident has produced his driving licence (Ex.R1) and insurance policy (Ex.R2) of motorcycle. Ex.R1 depicts that the first respondent is authorised to ride MCWG and the driving licence is valid up to 25.4.33 which was issued on 25.4.13. Ex.R2 depicts that the motorcycle in question covered under package policy issued SCCH 17 18 MVC3786/15 on 27.9.14 and the date of expiry of the insurance is mid night on 26.9.15. Accident took place on 27.9.14. The premium was paid on 26.9.14. The date of proposal and declaration was signed on 26th day of September, 2014. Effective date of commencement of insurance is Zero hours on 27.9.14. Accident occurred at quarter to nine in the night on 27.9.14. This shows that the insurance policy was in force at the time of accident. In this backdrop the third respondent being the insurer is liable to indemnify the owner. Accordingly this issue is answered.
18. Issue-3: By virtue of above findings, Tribunal proceeds to pass the following:
ORDER Petition is allowed in part with costs. SCCH 17 19 MVC3786/15 Petitioner is entitled for compensation of Rs.8,15,560/-(Rupees eight lakhs fifteen thousand five hundred sixty only) with interest @ 9% per annum from the date of petition till realization (excluding future medical expenses of Rs.1,00,000/-).
Third respondent is liable to pay the compensation to the petitioner and he is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
On deposit keep the entire amount in FD in the name of minor petitioner in any nationalized or schedule bank till he attains majority with liberty to withdraw the accrued interest periodically.
Advocate's fee is fixed at Rs.1000/-.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 5th day of December, 2016) (A.SAMIULLA) XIX ADDL.SCJ & MACT:
BANGALORE.SCCH 17 20 MVC3786/15
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS: FOR PETITIONER:
Pw.1: Sri.Basavaraj.
Pw.2: Dr. Nagaraj.B.N. DOCUMENTS:
Ex.P.1 FIR of Highgrounds PS in crime No. 63/2014
Ex.P.2 Complaint
Ex.P.3 Sketch
Ex.P.4 Panchanama
Ex.P.5 Copy of notice U/s 133
Ex.P.6 Reply to notice U/s 133
Ex.P.7 MVI Report
Ex.P.8 Wound certificate of St.Martha's Hospital
Ex.P.9 Wound certificate of Fortis Hospital
Ex.P.10 Discharge summary of St.Martha's Hospital
Ex.P.11 Discharge summary of Fortis Hospital
Ex.P.12 Laboratory reports
Ex.P.13 Prescriptions
Ex.P.14 Prescriptions (19)
Ex.P.15 Certificate issued by Plastic Surgeon
Ex.P.16 Certificate issued by Dentist
Ex.P.17 Estimation issued by Plastic surgeon
Ex.P.18 X-rays (10)
Ex.P.19 CT scan (17)
Ex.P.20 Progress Card
Ex.P.21 Inpatient records
SCCH 17 21 MVC3786/15
FOR RESPONDENTS:
R.w.1: Sri. Muniswamy.M.N.
DOCUMENTS:
Ex.R1: Extract of driving licence
Ex.R2: Insurance policy
(A.SAMIULLA)
XIX ADDL.SCJ & MACT:
BANGALORE.