Bangalore District Court
In Mvc No.5133/2014 vs Both The on 25 February, 2016
BEFORE THE MEMBER PRL.M.A.C.T., BANGALORE
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
MEMBER, PRL.M.A.C.T
DATED: 25th DAY OF FEBRUARY'2016
M.V.C.No.5133 AND 5134/2014
BETWEEN:-
M.Muniraju,
S/o.Late Muniyappa,
Aged about 28 years,
R/at Thelagarahalli Grama,
Kasaba Hobli, Anekal Taluk,
Bangalore Rural District.
Petitioner in MVC No.5133/2014
T.M.Ramaiah,
S/o.Late Munivenkatappa,
Aged about 65 years,
R/at No.51, Thelagarahalli,
Vanakanahalli Post,
Anekal Taluk,
Bangalore Rural District.
Petitioner in MVC No.5134/2014
(By Smt.M.N.Uma, Advocate, Advocate)
AND:-
1) Reliance General Insurance Co., Ltd.,
No.28, 5th Floor,
Centenary Building,
M.G.Road, Bangalore 560 001.
(Insurer of Vehicle Maxi Cab
Bearing Reg.No.KA.41/A.9928)
2) Santhosh R.,
S/o.Raju,
No.45, 4th Main Road,
N.R.Garden, Cholurupalya,
Magadi Road,
Bangalore 560 023.
(Owner of the Vehicle Maxi Cab
Bearing Reg.No.KA.41/A.9928)
Common Respondents in both the Petitions
(Respondent No. 1 - Sri Ashok N.Patil, Advocate
(Respondent No.2 - G.T.Kenche Gowda, Advocate)
COMMON JUDGMENT
Both the petitions are arising out of the same accident and
therefore, they are disposed of by this common judgment.
The petitioners have filed these petitions claiming
compensation of Rs.10 lakhs each from the respondents 1 and 2
jointly and severally from the insurer and the owner of the Vehicle
Maxi Cab No.KA.41/A.9928 on account of the injuries sustained
by them in the motor vehicle accident that occurred on 28.05.2014
at about 4.30 am., near Sunavar Petrol Bunk, Anekal.
Brief facts of the case are that:- On 28.05.2014 at about 04.30
am., the petitioners were traveling in an Autorickshaw bearing
registration No.KA.05/B.8250 near Sunavar Petrol Bunk on
Anekal Thali Main Road. At that time, the driver of the Winger
vehicle No.KA.41/A.9928 having driven the same in rash and
negligent manner and in high speed came from opposite direction
and dashed against the autorickshaw and caused the accident.
In the accident, the petitioner in MVC No.5133/2014 has
suffered grievous injuries and was initially treated at Government
Hospital, Anekal and thereafter, he was shifted to Sparsh Hospital,
wherein he took treatment as inpatient and spent substantial
amount for treatment. The petitioner's case is that he was aged 28
years and was self employed and working as driver and earning
Rs.10,000/- per month. On account of the accident, he suffered
permanent disability and thereby suffered loss of income and lost
earning capacity. Hence, the petitioner in MVC No.5133/2014
prays to award compensation of Rs.10 lakhs from the respondents.
In the accident, the petitioner in MVC No.5134/2014 has
suffered grievous injuries and was initially treated at Government
Hospital, Anekal and thereafter, he was shifted to St.John's
Hospital wherein he took treatment as inpatient and spent
substantial amount for treatment. The petitioner's case is that he
was aged 65 years and was self employed and doing vegetable
vending and earning Rs.10,000/- per month. On account of the
accident, he suffered permanently disability and thereby suffered
loss of income and lost earning capacity. Hence, the petitioner in
MVC No.5134/2014 prays to award compensation of Rs.10 lakhs
from the respondents.
Pursuant to filing of these petitions, notice was issued to the
respondents. Both the respondents appeared through their
respective Counsel, however, the respondent No.2 has not filed
statement of objections; it is only the first respondent, who has
filed statement of objections.
The first respondent in its reply, denied the averments of the
petition that on 28.05.2014, at about 04.30 am., while the
petitioners were traveling as driver and passenger in autorickshaw
bearing No.KA.05/B.8250 near Sunavar Petrol Bunk on Anekal
Thali Main Road near Yarappa's land, at that time, the Maxi Cab
No.KA.41/A.9928 which was coming from Anekal, dashed against
the said autorickshaw and due to the impact, the petitioners
sustained injuries as false.
However, the respondent No.1 admits that it has insured the
vehicle in the name of Santosh and the liability if any is subject to
terms and conditions of the policy.
Without prejudice to the above contentions, the respondent
No.1 has contended that the petition is liable to be dismissed for
non joinder of necessary parties ie., owner and insurer of the
autorickshaw No.KA.05/AB.8260.
. The respondent No.1 has failed to comply the provisions of
Section 134(C) of the M.V.Act in furnishing the particulars of
policy, date, time and place of accident, particulars of injured
persons and the particulars of the driver.
The respondent No.1 specifically denies involvement of the
insured vehicle in the accident. It is further contended that the
accident has taken place due to the negligence of the driver of the
autorickshaw No.KA.05/AB.8250. It is further contended that the
driver of the Maxi Cab No.KA.41/A.9928 was not holding valid
and effective driving licence, effective fitness certificate and permit
and thereby, the insured as violated the terms and conditions of the
policy. The respondent No.1 has denied the averments in para 1 to
7 of the petition regarding the age, avocation and income of the
petitioners, so also the nature of injuries sustained by them,
treatment taken and also the amount spent for treatment. It is
contended that the amount of compensation claimed by the
petitioners' is exorbitant and not based on any norms. Hence, for
all these reasons, the first respondent has sought for dismissal of
both the petitions.
Based on the above pleadings, the following common issues
were framed:-
1) Whether the petitioner proves that he sustained grievous
injuries in a Motor Vehicle Accident that occurred on
28.05.2014 at about 4.30 am., on Anekal Thali Main
Road, near Sunavar Petrol Bunk, Anekal, within the
jurisdiction of Anekal Police Station on account of rash
and negligent driving of the Maxi Cab bearing
registration No.KA.41/A.9928 by its driver?
2) Whether the petitioner is entitled for compensation? If so,
how much and from whom?
3) What order?
In order to prove their case, the petitioner in MVC
No.5133/2014 got himself examined as PW 1, the petitioner in
MVC No.5134/2014 got himself examined as PW 2. They have
also examined Dr.B.N.Nagaraj, Dr.Naren as PW 3 and 4 and
placed reliance on 20 documents, which are marked as Ex.P.1 to
P.20.
On behalf of the first respondent, an official from the office of
RTO Office is examined as RW 1 and an official of the office of
respondent No.1 is examined as RW 2 and through their evidence,
3 documents are marked as Ex.R.1 to R.3.
Heard the arguments of the petitioners' Counsel as well as
Counsel for the respondents.
The counsel for the respondent No.1 has relied upon the
following reported and unreported judgments:
1) MFA No.6535/2011 decided on 8th January'2016 by the
High Court of Karnataka.
2) ILR 2015 KAR 2064
Having perused the pleadings of the parties, evidence led by
both sides, material available on record, and upon going the oral
arguments of the petitioners' counsel and the arguments of the
counsel for respondents, my findings on the above issues are as
under:-
1) In the affirmative,
2) Partly in the affirmative,
3) As per final order, for the following:-
REASONS
Issue No.1 in all the cases:- Since both these claim petitions
are arising out of the same accident and issue No.1 in both the
petitions is regarding the negligence, they are taken up together for
discussion.
Since both these petitions are filed under Section 166 of the
Motor Vehicles Act, 1988, it is incumbent upon the petitioners to
prove the negligence on the part of the driver of the Maxi Cab
bearing No.KA.41/A.9928 in occurrence of the accident.
Both the petitioners have stated in their petition that the
accident occurred on account of the rash and negligent driving of
the Maxi Cab bearing registration No.KA.41/A.9928 by its driver.
It is their case that on 28.05.2014, at about 04.30 am., the petitioner
in MVC No.5133/2014 as driver and the petitioner in MVC
No.5134/2014 as passenger, were traveling in the said
autorickshaw. When the said autorickshaw came near Sunavar
Petrol Bunk on Anekal-Thali Main Road, at that time, the Maxi
Can No.KA.41/A.9928 came from opposite direction in high speed
recklessly and in that process, dashed against the autorickshaw of
the petitioners and in the accident both the petitioners sustained
injuries and they have been shifted to different hospital in
Bangalore wherein they were treated as inpatients. Thus, it is their
case that the accident has occurred on account of the rash and
negligent driving of the Maxi Cab by its driver.
The respondent No.2, the owner of the Maxi Cab, though
entered appearance, has not contested the case of petitioners by
filing statement of objections and the respondent No.1 the Insurer
of the Maxi Cab entered appearance and filed statement of
objections, denying the manner in which the accident occurred and
also the negligence attributed to the driver of the Maxi Cab.
In order to prove their case, the petitioner in MVC
No.5133/2014 has been examined as PW 1, the petitioner in MVC
No.5134/2014 has been examined as PW 2. They have filed their
respective affidavit in the form of examination in chief. PW 1
through his evidence, got marked the FIR, Mahazar, IMV Report
and the Charge Sheet as Ex.P.1 and 3 to 5.
PW 1 and 2 have been cross-examined by the counsel for the
respondent No.1.
PW 1 in his cross-examination says that he has produced the
driving licence to prove his age. It is suggested to him that he is
aged more than 35 years and the said suggestion has been denied
by him. He says that the autorickshaw belongs to him and that the
autorickshaw was also damaged. He says that there was no any
insurance to autorickshaw and he has not claimed any damages. It
is suggested to him that he was not having any driving licence to
drive the autorickshaw on the date of accident and the said
suggestion has been denied by him.
PW 1 says that he was proceeding from Pedrahalli towards
Anekal and the offending vehicle was proceeding form Anekal to
Pedrahalli and he saw the offending vehicle prior to the accident.
He admits that it is a head on collusion. It is suggested to him that
the accident occurred at the middle of the road and the said
suggestion has been denied by him.
In the cross-examination of PW 2, it is elicited from him that he
was traveling in the autorickshaw along with his vegetables and he
was alone in the autorickshaw. It is suggested to him that the
accident has taken place at the middle of the road and the accident
occurred due to the negligence on the part of the driver of the
autorickshaw and the said suggestion has been denied by him.
The respondent No.1 though contends that the accident has not
occurred due to negligence on the part of the driver of the Maxi
Cab, but the respondent No.1 has not examined the driver of the
Maxi Cab, who would have been the best person to speak as to the
manner in which the accident has occurred or regarding the
negligence, if any, on the part of the petitioner in MVC
No.5133/2014 in occurrence of the accident.
Now, let me appreciate both oral and documentary evidence
available before the Court.
The petitioners have produced FIR, Mahazar, IMV Report and
Charge Sheet as Ex.P.1 and 3 to 5. On perusal of FIR, it is seen
that a case has been registered by the jurisdictional police against
the driver of the Maxi Cab No.KA.41/A.9928 upon the complaint
lodged by one Srinivas. Based on the complaint lodged by the said
Srinivas, the Police investigated into the matter and filed charge
sheet against the driver of the Maxi Cab for offence under Section
279 and 338 of IPC.
As stated above, though the respondent No.1 contends that the
accident has not occurred due to any negligence on the part of the
driver of the Maxi Cab, the same has not been established by the
respondent No.1 by placing on record any cogent and acceptable
evidence and even the driver of the Maxi Cab has not been
examined by the respondent No.1. There is nothing in the cross-
examination of the petitioners to disbelieve the case made out by
them. As against the same, the respondent No.2, the owner of the
Maxi Cab though entered appearance, has not contested the case of
the petitioners. The Insurance Company has not produced any
contra evidence. RW 3 and 4, who are the official of the RTO
Office and the respondent No.1, have not whispered anything about
the negligence in their evidence. The driver of the Maxi Cab has
not been examined to controvert the evidence placed on record by
the petitioners in support of their case. Thus, the facts of the case
clearly and categorically reveal that the accident occurred on
account of the rash and negligent driving of the Maxi Cab
No.KA.41/A.9928 by its driver. Accordingly, issue No.1 in both
the cases is answered in the affirmative.
Issue No.2 in MVC No.5133/2014:- Petitioner in MVC
No.5133/2014 has been examined as PW 1. His evidence would
go to show that he sustained injuries in the accident and
immediately after the accident, he was shifted to Government
Hospital, Anekal, wherein he was given first aid and thereafter, he
was shifted to Sparsh Hospital, wherein he was treated as inpatient.
Ex.P.2 is the Wound Certificate issued by Sparsh Hospital which
shows that the petitioners has suffered (1) Head injury with frontal
and parietal SAH (2) Fracture right orbital layer and (3) Diffuse
cerebral oedema and the same are stated to be grievous in nature.
Apart from the Wound Certificate, the petitioner has also produced
Ex.P.6 - Discharge Summary issued by the said Hospital. A close
perusal of the discharge summary shows that the petitioner was
treated by intubations and ventilation with analgesics and he
underwent right femur IMIL nailing on 30.05.2014 and also
underwent elective tracheostomy on 6.6.2014 and discharged in a
stable condition on 24.06.2014. The petitioner was admitted n
29.05.2014 and discharged on 24.06.2014. The petitioner has also
examined Dr.B.N.Nagaraj, Orthopedic Surgeon at Sparsh Hospital
as PW 3 and his evidence shows that the petitioner had suffered
segmental fracture of right femur and severe head injury with right
frontal and parietal sulci SAH, fracture medical wall of right orbit
and in the cross-examination, PW 3 admits that he is one of the
team members of the treated doctors of petitioner.
As against the evidence placed on record regarding the injuries
suffered by the petitioner and the treatment given to him in the
form of oral as well documentary evidence, the respondent No.1 -
Insurer of the Maxi Cab has not put forward any contra evidence in
the form of either oral or documentary. Thus, having regard to the
fracture and that he was inpatient for a considerable period of time,
he has been awarded Rs.40,000/- under the head injury pain and
suffering.
So far as medical expenses are concerned, as per Ex.P.14
Series, the petitioner has produced 132 medical bills amounting to
Rs.5,78,389/-. I have gone through the bills produced by the
petitioner. Though a suggestion was put to PW 1 stating that the
bills at Sl.No.46, 49 to 56, 58 to 63, 66 to 75 are created
documents and the said suggestion has been denied by him. The
bills are pertaining to the period of treatment and also for the
period immediately thereafter. Considering the gravity of the
injury and the period of treatment, the amount shown in these bills
cannot be doubted. As such, he has been awarded Rs.5,78,389/-
under the head medical expenses.
Immediately after the accident, the petitioner was shifted to
Government Hospital, wherein first aid was treatment and
thereafter, he was shifted to Sparsh Hospital, Bengaluru where he
was treated as inpatient from 29.05.2014 to 24.06.2014 for 26 days.
Having regard to the fact that the petitioner has suffered fractures,
it was inevitable for him to engage private vehicle for his
conveyance and attendant to attend to his needs. Considering the
same, the petitioner has been awarded Rs.20,000/- under the head
conveyance, attendant and other miscellaneous expenses.
It is the case of petitioner that he was aged 28 years and
working as driver and earning Rs.10,000/- per month. Petitioner
went on record to depose that during the period of treatment, he has
suffered loss of income. So far as age is concerned, the petitioner
has produced Notarised copy of Driving licence, marked as
Ex.P.13, which reveals that the petitioner was born on 16/06/1987
and the accident having occurred on 28.05.2014, he was running 28
years as contended by him. Further, Ex.P.13 reveals that he was
permitted to drive motorcycle with gear and LMV. Even in the
cross-examination, it is elicited that he has produced the driving
licence to show his age. Further, it is suggested to him that he was
not earning Rs.10,000/- per month and the said suggestion has been
denied by him. Thus, though it is elicited and proved from Ex.P.13
that the petitioner was having a licence to drive LMV, but in the
absence of any proof regarding the income, considering the age of
the petitioner as 28 years at the time of accident, I deem it just and
proper to take his income as Rs.8,000/- per month.
As discussed above and as per the medical records, it is clear
that the petitioner has suffered segmental fracture of right femur
and fracture medial wall of right orbit, which in my opinion,
rendered the petitioner incapable to do his job, at least for 4
months, which has to be compensated under the head loss of
income during the period of treatment and accordingly, the
petitioner has been awarded Rs.32,000/- under the head loss of
income during treatment for 4 months at the rate of Rs.8,000/- per
month.
The evidence of the petitioner would go to show that he
suffered fracture of segmental fracture of right femur and based on
the injury, the petitioner contends that he has suffered disability,
which rendered him incapable to earn his livelihood in future. As
far as injuries suffered by petitioner are concerned, the contents of
Wound Certificate Ex.P.2 and Discharge Summary Ex.P.6 reiterate
the same. But that is not sufficient to come to the conclusion that
the petitioner has suffered disability on account of injuries suffered
by him in the accident. In that regard, the petitioner has examined
PW 3 Dr.B.N.Nagaraj, Orthopedic Surgeon and Medico Legal
Consultant, Sparsh Hospital to speak about the disability suffered
by him. PW 3, in his evidence has clearly deposed about the nature
of injuries suffered by petitioner, nature of treatment administered
to him and after considering the effect of injuries, both clinically
and radiologically, assessed the total disability at 49% and 15.6%
to the whole body. PW 3 further says that the petitioner needs to
undergo surgery for removal of implants, the cost of which is
around Rs.40,000/- in their hospital.
PW 3 in his cross-examination has stated that he is one in the
team of doctors who treated the petitioner and that the petitioner
came to their hospital directly after the accident and he admits that
he is an Orthopedic Surgeon and he assessed the disability in
respect of femur and the patient was subjected to surgery. He says
that he has suggested the petitioner to have the foot raised for
shortening. He says that in his affidavit, he has given the
mathematical calculation how he has assessed the disability. It is
suggested to him that the disability assessed by him to the extent of
15.6% is on higher side and the said suggestion has been denied by
him. He admits that he has not given any estimation in respect of
future cost.
In this case, PW 3 has assessed the disability at 49% to right
lower limb and 15.6% to whole body, but he has not stated as to
whether the petitioner is unable to continue his work or whether he
has functional disability, if so to what extent. Since the petitioner
has suffered segmental fracture of right femur, the assessment of
disability at 49% to right lower limb and 15.6% to whole body
appears to be on higher side, as suggested to him in his cross-
examination. Hence, I deem it just and proper to take the disability
to whole body at 12%. In that event, the petitioner is entitled to
compensation under the head disability as under:-
Income of the petitioner is taken as Rs.8,000/-. 12% of which
comes to Rs.9,600/- and annually, it comes to Rs.11,520/-. Since
the age of the petitioner was 28 years at the time of accident, by
applying 17 multiplier, the petitioner is held to be entitled to a
compensation under the head disability comes to Rs.1,95,840/-.
The petitioner was treated with implantation is evidenced by
the medical records. Even PW 3 Dr. B.N.Nagaj has stated that
since the petitioner had undergone closed reduction with internal
fixation, the petitioner has to undergo one more surgery for
removal of implants, which may cost Rs.40,000/- in their hospital.
In my opinion, the amount stated by PW 3 for removal of implants
appears to be on higher side. Since the petitioner has to undergo
surgery for removal of implants, I deem it just and proper to award
Rs.25,000/- under the head future medical expenses.
The petitioner having suffered segmental fracture of femur and
fracture medial wall of right orbit, has to bear the pain throughout
his life. Considering the same, I deem it just and proper to award
Rs.30,000/- under the head loss of amenities in life.
Thus, the petitioner has been awarded compensation under
various heads as under:-
Sl.No. Head of compensation Amount
Rs.
1. Injury, pain and suffering 40,000.00
2. Medical expenses 5,78,389.00
3. Attendant charges, conveyance charges 20,000.00
and other miscellaneous expenses
4. Loss of income during treatment 32,000.00
5. Loss of earning capacity on account of 1,95,840.00
disability
6. Future medical expenses 25,000.00
7. Loss of amenities in life 30,000.00
Total 9,21,229.00
Accordingly issue No.2 in MVC No. 5133/2014 is answered.
Issue No.2 in MVC No.5134/2014:- Petitioner in MVC
No.5133/2014 has been examined as PW 2. His evidence would
go to show that he sustained injuries in the accident and
immediately after the accident, he was shifted to Government
Hospital, Anekal, from where, he was shifted to St.John's Hospital,
wherein he was treated as inpatient. Ex.P.8 is the Wound
Certificate issued by St.John's Hospital, Bangalore, which shows
that the petitioners has suffered the following injury:-
"1) Blood clots in oral cavity with difficulty in jaw opening
- CT, face, left parasymphyseal and right mandible body
fracture.
2) Thoracis spine tenderness, Chest X ray - right third rib
fracture, CT spine, D.12 spine fracture.
3) Sutured wounds over right knee measuring 10-12 cms
each
4) Both central and lateral incisors lost.
The doctor who issued the above Wound Certificate has opined
the injury No.1m 2 and 4 as grievous and injury No.3 as simple in
nature. The petitioner has also produced Ex.P.9 - Discharge
Summary issued by St.John's Hospital, Bangalore which reveals
that the petitioner was admitted as inpatient on 28.05.2014 and
discharged on 12.06.2014, that means, he was inpatient for 14
days. During the said period, he underwent Arch bar + Open
reduction internal fixation under general anesthesia on 7.6.2014.
The petitioner has also examined the doctor who treated him as PW
4, who in his evidence, reiterated regarding the nature of injuries
and the treatment given to the petitioner. Under such
circumstances, considering the nature and gravity of injuries and
the period of treatment, I deem it just and proper to award
Rs.40,000/- as compensation towards injury, pain and suffering.
So far as medical expenses are concerned, as per Ex.P.10
Series, the petitioner has produced 37 medical bills amounting to
Rs.84,871/-. I have gone through the bills produced by the
petitioner. Though a suggestion was put to PW 2 stating that he
has not spent the amount as shown in Ex.P10 bills, and the said
suggestion has been denied by him. The bills are pertaining to the
period of treatment and also for the period immediately thereafter.
Considering the gravity of the injury and the period of treatment,
the amount shown in these bills cannot be doubted. As such, he
has been awarded Rs.84,871/- under the head medical expenses.
Immediately after the accident, the petitioner was shifted to
Government Hospital, wherein first aid was treatment and
thereafter, he was shifted to St.John's Hospital, Bengaluru where
he was treated as inpatient from 28.05.2014 to 12.06.2014 for 14
days. Having regard to the fact that the petitioner has suffered
fractures, it was inevitable for him to engage private vehicle for his
conveyance and attendant to attend to his needs. Considering the
same, the petitioner has been awarded Rs.15,000/- under the head
conveyance, attendant and other miscellaneous expenses.
It is the case of petitioner that he was aged 65 years and
working as vegetable vendor and earning Rs.10,000/- per month.
Petitioner went on record to depose that during the period of
treatment, he has suffered loss of income. So far as age is
concerned, the petitioner has not produced any acceptable
evidence, thereby the Court has to rely on the medical records,
which reveal the age of the petitioner as 65 years and since, the
said entry was made at an undisputed time, the same has to be
accepted for the purpose of this case and accordingly, the age of
the petitioner is taken as 65 years. Even in the cross-examination,
it is suggested to him that he is aged more. Further, it is suggested
to him that he was not earning Rs.10,000/- per month and the said
suggestion has been denied by him. Thus, in the absence of any
proof regarding the income, considering the age of the petitioner as
65 years at the time of accident, I deem it just and proper to take
his income as Rs.7,000/- per month.
As discussed above and as per the medical records, it is clear
that the petitioner has suffered multiple fractures, which in my
opinion, rendered the petitioner incapable to do his job, at least for
4 months, which has to be compensated under the head loss of
income during the period of treatment and accordingly, the
petitioner has been awarded Rs.28,000/- under the head loss of
income during treatment for 4 months at the rate of Rs.7,000/- per
month.
The evidence of the petitioner would go to show that he
suffered left parasymphyseal and right mandible body fracture,
right third rib fracture, D.12 spine fracture and both central and
lateral incisors lost and based on the injury, the petitioner contends
that he has suffered disability, which rendered him incapable to
earn his livelihood in future. As far as injuries suffered by
petitioner are concerned, the contents of Wound Certificate Ex.P.8
and Discharge Summary Ex.P.9 reiterate the same. But that is not
sufficient to come to the conclusion that the petitioner has suffered
disability on account of injuries suffered by him in the accident. In
that regard, the petitioner has examined PW 4 Dr.Naren, Assistant
Professor of Plastic Surgery at St.John's Hospital to speak about
the disability suffered by him. PW 4, in his evidence has clearly
deposed about the nature of injuries suffered by petitioner, nature
of treatment administered to him and after considering the effect of
injuries, both clinically and radiologically and after calculating the
physical impairment for injury to face as per DGHS guidelines, he
assessed the physical impairment due to injury to face for whole
body at 10%. PW 4 further says that the patient complains of
inability to chew solid food due to loss of contact of teeth on right
side of jaw and also complains of occasional pain weight loss.
PW 4 in his cross-examination has stated that he has treated
the petitioner in respect of maxio facial injuries and he has assessed
the disability only in respect of maxio facial injuries and the
meaning of physical impairment is the difficulty patient faces. He
says that he only assessed the disability and no orthopedic surgeon
was present at the time of assessing the disability. He says that the
petitioner has suffered fracture of mandible and the injury to
mandible affects the articulation of speech and further says that the
alignment will not affect on account of loss of teeth but only due to
the fracture, the chances of articulation of speech will reduce. It is
suggested to him that the disability assessed by him is on higher
side and the said suggestion has been denied by him.
In this case, PW 4 being a Plastic Surgeon has assessed the
disability at 10% to whole body taking in to consideration the over
complaints, but, it has to be noted here that the petitioner has not
examined the orthopedic surgeon regarding other disability on
account of fractures and PW 4 specifically says that he has
assessed the disability only in respect of maxio facial injuries.
Therefore, it can be said that the 10% disability to whole body
assessed by PW 4 appears to be on higher side and hence, I deem it
just and proper to take the disability to whole body at 8%. In that
event, the petitioner is entitled to compensation under the head
disability as under:-
Income of the petitioner is taken as Rs.7,000/-. 8% of which
comes to Rs.560/- and annually, it comes to Rs.6,720/-. Since the
age of the petitioner was 65 years at the time of accident, by
applying 7 multiplier, the petitioner is held to be entitled to a
compensation under the head disability comes to Rs.47,040/-.
The petitioner having suffered "1) Blood clots in oral cavity
with difficulty in jaw opening - CT, face, left parasymphyseal and
right mandible body fracture.
2) Thoracis spine tenderness, Chest X ray - right third rib
fracture, CT spine, D.12 spine fracture.
3) Sutured wounds over right knee measuring 10-12 cms
each
4) Both central and lateral incisors lost.
has to bear the pain throughout his life. Considering the same, I
deem it just and proper to award Rs.20,000/- under the head loss of
amenities in life.
54. Thus, the petitioner has been awarded compensation
under various heads as under:-
Sl.No. Head of compensation Amount
Rs.
1. Injury, pain and suffering 40,000.00
2. Medical expenses 84,871.00
3. Attendant charges, conveyance charges 15,000.00
and other miscellaneous expenses
4. Loss of income during treatment 28,000.00
5. Loss of earning capacity on account of 47,040.00
disability
6. Loss of amenities in life 20,000.00
Total 2,34,911.00
55. Thus, the petitioner in MVC No.5314/2014 is held to be
entitled a compensation of Rs.2,34,911/-.
56. So far as liability to pay compensation amount is concerned,
it is the contention of the respondent No.1 that the vehicle in
question was insured with it as a Maxi Cab and the driver of the
same as on the date of accident, was not holding licence to drive a
cab and thereby, the respondent No.2 having allowed the vehicle to
be driven by a person who had no valid and effective driving
licence, has violated the policy conditions and thereby the
respondent No.1 is absolved from indemnifying the respondent
No.1.
57. In order to substantiate the same, the respondent No.1
has examined an official from the office of RTO Office,
Rajajinagar as RW 1 and an official from the office of the
respondent No.1 is also examined as RW 2, who in their evidence,
have produced the DL Extract of the driver of the Maxi Cab which
is marked as Ex.R.2. They further says that the driver had taken
the licence on 23.11.2012 to drive motorcycle with gear and also
obtained LMV licence on 15.03.2013 and the LMV Cab licence
was taken on 9.6.2014 and the accident having occurred on
28.05.2014, as on the date of the accident, the driver was not
having the driving licence to drive LMV Cab
58. RW 1 has been cross-examined by the counsel for the
respondent No.2 wherein she admits that she does not know the
unladen weight of the vehicle and she further says that she does not
know if the vehicle weight is less than 7500 kgs, it will be
considered as LMV category.
59. In the cross-examination of RW 2, he admits that as on the
date of accident, the policy was in force. It is suggested to him that
the driver of the offending vehicle was having the learners licence
for transport vehicle as on the date of accident and the said
suggestion has been denied by him. He says that he cannot say
anything about the learners licence. He admits that the unladen
weight of the vehicle is 1620 kgs. It is suggested to him that if the
unladen weight is less than 7000 kgs., the driver who is having
LMV driving licence can drive the vehicle and the said suggestion
has been denied by him.
60. During the course of arguments, the Counsel for the
respondent No.1 vehemently contended that even though the driver
was holding licence to drive LMV, the vehicle in question being a
Maxi Cab that is transport vehicle, he was not permitted to drive
the said vehicle and hence, there being breach of policy conditions,
the liability is absolved to indemnify the respondent No.2. In
support of his contentions, he has relied upon the judgment
reported in ILR 2015 KAR 2064, wherein the High Court of
Karnataka has held thus:
"MOTOR VEHICLES ACT, 1988 - Accident claim -
Judgment and Award - Liability imposed on the owner of the
vehicle to pay the compensation - Appealed against - Whether a
person holding a licence to drive a LMV (NT) vehicle has the
authority to drive the LMV (TP) vehicle and whether the insurer is
liable to indemnify the owner" HELD - A person holding a licence
to drive a LMV (NT) vehicle has no authority or competence to
drive the LMV (TP) vehicle".
61. In the background of the above contentions taken by the
respondent No.1, on perusal of Ex.R.2 DL Extract of the driver, it
can be seen that from 23.11.2012, he was licenced to drive
motorcycle with gear, fro, 15.03.2013, he was licenced to drive
LMV and from 9.6.2014 ie., after the date of accident, he was
licenced to drive LMV Cab, ie., the vehicle in question. From
Ex.R.3 Insurance Policy, it can be seen that the vehicle in question
is a passenger carrying vehicle ie., a transport vehicle. For driving
such vehicle, one must have special permission in the form of
LMV transport and in the case on and, the same is not found.
There is a force in the contention in the counsel for the respondent
No.1. Even otherwise, the driver of the maxi cab has not been
examined by the respondent No.2 before the Court. Thus, when the
vehicle is a passenger carrying transport vehicle, the driver of was
not holding valid licence to drive the same and as per the
conditions of the insurance policy, there is a clear violation of the
policy conditions on the part of the respondent No.2 in allowing
the vehicle to be used driven by a person not holding valid licence
and hence, in both the cases, the respondent No.2 who is solely
responsible to satisfy the award to be passed in this case and the
petition as against the respondent No.1 deserves to be dismissed.
Accordingly, I answer issue No.2 partly in the affirmative.
62. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC
100) (Municipal Council of Delhi Vs. Association of Victims of
Uphaar Tragedy), the Supreme Court has held that the Court has to
take into account the rate of interest of the nationalized bank and
the present day cost of living and thereby awarded, interest on the
compensation amount at 9% p.a. I have no reasons to deviate from
the said view of the Apex Court. Accordingly, interest on
compensation amount is awarded at 9% p.a.
63. Accordingly issue No.2 in both the cases are answered
and in the result, I pass the following:
ORDER
MVC 5133/2014 The petition is partly allowed with costs against the respondent No.2.
The petitioner has been awarded compensation of Rs.9,21,229/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 2, who shall deposit the compensation amount within 2 months from the date of this order.
Compensation of Rs.25,000/- awarded under the head future medical expenses shall not carry any interest.
Out of the compensation amount so awarded, Rs.2,00,000/- with proportionate interest shall be deposited in the name of the petitioner for a period of 5 years in any nationalised/scheduled bank of his choice and the balance amount with proportionate interest is ordered to be paid to the petitioner. Interest on FD is payable on maturity.
MVC 5134/2014 The petition is partly allowed with costs against the respondent No.2.
The petitioner has been awarded compensation of Rs.2,34,911/- together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 2, who shall deposit the compensation amount within 2 months from the date of this order.
Having regard to the age of the petitioner, entire compensation amount with interest is ordered to be released to him.
Both the petitions as against the respondent No.1 are dismissed.
Advocate's fee is fixed at Rs.1,000/- in each case. Original of the judgment shall be kept in MVC No.5133/2014 and a copy of the same be retained in other case. (Dictated to the Judgment Writer directly on computer, corrected and then pronounced by me in Open Court on 25.02.2016) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURE Witnesses examined on behalf of the petitioner:
P.W.1 : Muniraju P.W.2: Ramaiah T.M., P.W.3:Dr.B.N.Nagaraj P.W.4: Dr.Naren Witnesses examined on behalf of the respondents:
R.W.1 : Sumithra Devi D.G. R.W.2: Guruprasad G., Documents marked on behalf of the petitioners:
Ex.P.1 : Certified copy of FIR
Ex.P.2 : Wound Certificate
Ex.P.3 : Mahazar
Ex.P.4 : IMV Report
Ex.P.5 : Charge sheet
Ex.P.6 : Discharge Summary
Ex.P.7: CT Scan Reports
Ex.P.8: Wound Certificate
Ex.P.9: Discharge Summary
Ex.P.10: 37 Medical Bills for Rs.84,871/- Ex.P.11: 28 Prescriptions Ex.P.12: Copy of Ration Card Ex.P.13: Copy of driving licence Ex.P.14: Medical bills (135) for Rs.578389/-
Ex.P.15: Case Sheet
Ex.P.16: Xray
Ex.P.17: Inpatient Record
Ex.P.18: OP Record
Ex.P.19: 8 X rays
Ex.P.20: Disability Certificate Documents marked on behalf of the respondents:
Ex.R.1: Authorisation letter
Ex.R.2: Driving Licence extract
Ex.R.3: Policy Copy
(H.P.SANDESH)
MEMBER, PRL.M.A.C.T