Bangalore District Court
Was To Prove That vs No.2 on 14 December, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 14th day of December, 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.2971/2014
Kollappa, ..... PETITIONER
S/o Late Harijana Gajalingappa,
Aged about 60 years,
Residing at No.16/2,
Sackat Engineering Private Limited,
Junnasandra,
Sarjapur Road,
Bangalore-560035.
Permanently Residing at;
No.1-159,
Bommanahal,
Singanahalli,
Ananthpur,
Andhra Pradesh-515871.
(By Sri. Brijesh Rajput, Adv.,)
V/s
1. Shivakumar, .....RESPONDENTS
S/o Munikrishna,
No.61, Chikkanahalli Village,
Carmelaram Post,
Sarjapura Road,
Bangalore-560035.
(R.C. Owner of Water Tanker bearing
Registration No.KA-01-AC-9640)
2. ICICI Lombard General Insurance
Company Limited,
2 M.V.C.NO.2971/2014
(SCCH-7)
Regional Office,
No.89, 2nd Floor,
S.V.R. Complex,
Hosur Main Road,
Madiwala,
Bangalore-560068.
(Policy No.3003/IM-00149267/11/000,
Valid From 17.09.2013 to 16.09.2014)
(R1- By Sri. M.S., Adv.,)
(R2- By Smt. R.Sharadamba, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 10,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 18.02.2014 at about 12.10 night, when he was sleeping outside near Layout Shed, situated at Survey No.16/2, Junnasandra, Sarjapura Road, Bangalore, at that time, the driver of the Water Tanker bearing Registration No.KA-01-AC- 9640 suddenly moved the said vehicle in a reverse gear in a rash and negligent manner, endangering to human life without observing any of the traffic rules and regulations, due to which, the wheels of the said Water Tanker ran over both legs of him. Consequent to which, he sustained grievous injuries all over the body.
b) Immediately, after the accident, he was shifted to St.John's Hospital, Bangalore, wherein, after first-aid treatment, 3 M.V.C.NO.2971/2014 (SCCH-7) due to severe injuries sustained by him, for further treatment, referred to Sanjay Gandhi Hospital, wherein, he took treatment as an inpatient from 18.02.2014 to 05.04.2014 and during the course of treatment, X-rays were taken, which revealed Fracture Shaft of right femur, Fracture Medial Malleolus right with intercondyler fracture left femur with skin injury left popliteal foisa and right ankle and other grievous injuries all over the body. Due to which, he underwent surgery, i.e., closed reduction internal fixation with IMIL Nail on 05.03.2014 SSG to left Popliteal fossa under S.A. on 15.03.2014 SSG Right ankle under S.A. on 28.03.2014 and after necessary treatment, discharged with an advise for follow up treatment, restrict movements and for complete bed rest and further advised to take well nourished food. As per the advise of the Doctors, he is still continuing follow-up treatment by hiring vehicle and so far spent more than Rupees 2,00,000/- towards medicine, conveyance, nourishment and other incidental charges, etc., The Doctors have also advised him to undergo one more surgery for removal of implants in near future, incurring huge expenses.
c) The injuries sustained in the said accident have not united and is getting unbearable pain often. On account of the said injuries, he is completely bed ridden, cannot walk, stand, sit, squat on the floor, cannot lift or carry weight and undergoing deep mental shock pain and sufferings, since the injuries are permanent in nature.
d) Prior to the date of accident, he was hale and healthy and was working in M/s. Saket Engineering Private Limited, Sarjapur, Bangalore as a coolie and earning a sum of Rs.10,000/- per month.
4 M.V.C.NO.2971/2014(SCCH-7)
e) With the said earnings, he was maintaining his family members. Due to the said injuries, in future, he cannot attend to his work, resulted in permanent loss of earning and earning capacity and put to great financial hardship.
f) The accident took place purely due to the rash and negligent manner of driving of the driver of the aforesaid Water Tanker bearing Registration No.KA-01-AG-9640 by moving the said vehicle in a reverse and in this connection, the jurisdictional HSR Layout Police have registered a case in their Crime No.139/2014 and after investigation, the said Police have filed a charge sheet as against the said driver, punishable under Sections 279 and 338 of IPC.
g) The First Respondent being the R.C. Owner of the said Water Tanker bearing Registration No.KA-01-AC-9640 and the 2nd Respondent being the insurer, the policy was in force as on the date of accident. Hence, both the Respondents are jointly and severally liable to pay the compensation to him under all heads, including general and special damages. Hence, this Petition.
3. Though the notice was duly served on the Respondent No.1, he was remained absent and hence, he is placed as exparte on 12.09.2014. Later, the Respondent No.1 has appeared before this Tribunal through his Learned Counsel and as per the Order dated 05.01.2014 passed on I.A.No.II, the exparte order is set- aside and the Respondent No.1 is taken on file. The Respondent No.1 has not filed the written statement.
4. Initially, though the notice was duly served on the Respondent No.2, it was remained absent and hence, it was 5 M.V.C.NO.2971/2014 (SCCH-7) placed as exparte on 12.09.2014. Later, the Respondent No.2 has appeared before this Tribunal through its Learned Counsel and as per the Order dated 27.09.2014 passed on I.A.No.I, the exparte order is set-aside and the Respondent No.2 is taken on file. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 20.01.2015 passed on I.A.No.III, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The claim petition filed by the Petitioner as against him is false, frivolous and not maintainable either in law or on facts.
b) The averments regarding the name, father's name of the Petitioner, address, age, occupation of the Petitioner, monthly income of the Petitioner, the nature of injuries sustained in the accident, treatment taken in the Hospital, period of treatment and expenditure incurred, disability caused in the accident, etc., are not within the knowledge of him.
c) The averments regarding the place, time, date of accident and jurisdictional Police Station and crime registered and vehicle involved in the accident are true.
d) It is true that, the HSR Police have registered Cr.No.139/2014.
e) He is the R.C. Owner of the vehicle bearing Registration No.KA-01-AC-9640 and the said vehicle is insured 6 M.V.C.NO.2971/2014 (SCCH-7) with second Respondent and the insurance policy is in force as on the date of the accident. If this Hon'ble Court comes to the conclusion in granting any compensation, the second Respondent is liable to pay, but, not he. Hence, prayed to dismiss the petition.
6. 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 is vexatious and frivolous, so also it is contrary to law and facts of the case.
b) It without admitting the alleged accident and of its liability, as on the date of alleged accident, the said vehicle Water Tanker bearing Registration No.KA-01-AC-9640 was not insured with it.
c) Without prejudice to the above contentions that denial of the policy by it in respect of the offending vehicle, the Petitioner was to prove that, the said vehicle was validly insured with it as on the date of said alleged accident and further to get the compensation form the hands of it, the Petitioner should prove that, as on the date of alleged accident, the said vehicle was involved.
d) The driver of the Water Tanker was not holding a valid driving licence to drive the said class of vehicle, the same amounts to violation of policy conditions, hence, it is not liable to indemnify any liability arising out of the said alleged accident.
e) The said vehicle being a commercial vehicle, was plied on road without there being a valid permit and fitness certificate.
7 M.V.C.NO.2971/2014(SCCH-7)
f) As per the petition averments and Police records, the alleged accident took place, when the Petitioner was sleeping on the foot path and where construction materials are dumped, at the mid night, the driver of the Tanker could not except that, somebody is sleeping on the foot path, the entire negligence is on the Petitioner and the said accident caused due to actionable negligence on the part of the Petitioner.
g) The Respondent No.1/Owner has not informed about the said accident and he has not furnished the particulars of policy to it as statutorily contemplated under Section 134(c) of the M.V. Act. The petition is liable to be dismissed due to non- compliance of Section 158(6) of the M.V. Act. The Petitioner only to fetch compensation, created the said documents in collusion with Police.
h) The liability of it if any, shall be as per the conditions of Insurance Policy issued as against the said vehicle and the insured is obligated to satisfy and act in accordance with Section 3, 66 of the M.V. Act, 1988 and Rule 3 of the Central Motor Vehicles Act.
i) The liability of it if any, is subject to limitation and provision of the Motor Vehicles Act and terms and conditions of the Policy of insurance issued to the owner of the vehicle and compliance under Section 64 V B of the Insurance Act.
j) It craves leave of this Hon'ble Tribunal to file an application under Section 170(a) and (b) of the Act, in the event, the Respondent No.1 fails to contest the petition on merits were to collude with the claimants, it may please be permitted to avail all the defences available to the Respondent No.1 and also be 8 M.V.C.NO.2971/2014 (SCCH-7) permitted to defence available under Sections 147 and 149 (2) of the Motor Vehicles Act.
k) The Petitioner is called upon to state on oath that, they have not filed any other claim petition for the alleged accident before any Tribunal in any other place seeking compensation.
l) In the event of any award is passed as against it, the rate interest may kindly be awarded not more than 6% p.a., as per the law laid down by the Hon'ble Court of Karnataka.
m) The compensation claimed by the Petitioner a sum of Rupees 10,00,000/- with interest is highly excessive, un reasonable and disproportionate. Hence, prayed to dismiss the petition with costs.
7. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Water Tanker bearing Reg.No.KA-01-AC-
9640 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
9 M.V.C.NO.2971/2014(SCCH-7)
8. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.16. On the other hand, the Respondents No.1 and 2 have not adduced any evidence on their behalf.
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 compensation of Rupees
3,10,504/- with interest at
the rate of 6% p.a.
(excluding future medical
expenses of Rupees
10,000/-) from the date of
the petition till the date of
payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, he is the permanent resident of No.1-159, Singenahalli, Bommanahalli Mandala, Rayadurga Taluk, Anthapura District, Andhra Pradesh and approximately two years ago, he came along with his family to Bangalore, as got job as Construction Labourer in Sacket Engineering Pvt. Ltd., a Development and Construction Company and when he joined the said Company, the said Company had 10 M.V.C.NO.2971/2014 (SCCH-7) taken up construction work at Sy.No.16/2, Junnasandra, Sarjapura Road, Bangalore and the said Company had given a labour shed for him and his family to reside. He has further stated that, on 17.02.2014 after completion of work, he was sleeping outside of his labour shed and at about 12.10 a.m., i.e., on 18.02.2014, the driver of Water Tanker bearing Registration No.KA-01-AC-9640 suddenly moved the said vehicle in a reverse gear in a rash and negligent manner, endangering to human life without observing any of the traffic rules and regulations and without giving any warning, that too, without looking into the back and the said Water Tanker's wheels ran over on his two legs causing grievous injuries all over the body and he was profusely bleeding. He has further stated that, because of the accident, bones of his both legs were crushed and fractured and this accident occurred due to rash and negligent driving of the Water Tanker. He has further stated that, immediately, after the accident, he was shifted to St. John's Hospital, Bangalore and after preliminary treatment, as he suffered complicated injuries, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopedic Hospital for better treatment and he was admitted to the said Hospital on 18.02.2014. He has further stated that, because of the accident, he suffered buries all over the body and fracture of shaft of right femur, fracture of medial malleolus right with intercondylar fracture left femur, with skin injury left popliteal foisa and right ankle and other grievous injuries all over the body. He has further stated that, the HSR Layout Police have registered a case in their Crime No.139/2014, as against the driver under Sections 279 and 338 of IPC for driving of the vehicle in rash and negligent way and after investigation, the Police have filed a charge sheet as against the driver.
11 M.V.C.NO.2971/2014(SCCH-7)
12. No doubt, the P.W.1 in his cross-examination has stated that, his shed is situated within the construction place and it is not a public place and usually, they all the family members used to sleep outside the shed and the drivers of the vehicles are not apparent about the persons, who are sleeping outside the shed and the owner and driver of the offending Water Tanker are not known to him. He has further stated that, he does not know, who has lodged a complaint before the Police about the alleged accident and he does not know that, whether they have informed about the accident to the Police or not. He has further clearly stated that, he does not know the number of his shed and there were three sheds in the working place and the shed was situated in between two sheds and the persons, who were residing in other sheds were not sleeping outside the sheds and the sheds were situated within the premises of apartment.
13. But, based on the said evidence of P.W.1, which has been elicited form his mouth by the Respondent No.2, it cannot be thrown away the above said oral version of P.W.1 which has been stated by him in his examination-in-chief, as, to corroborate his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Medical Documents issued by St. John Medical College Hospital, Ex.P.4 Wound Certificate, Ex.P.5 Case Summary and Discharge, Ex.P.7 X-ray Films 5 in numbers, Ex.P.9 Charge Sheet, Ex.P.10 Spot Mahazar, Ex.P.11 Spot Hand Sketch, Ex.P.12 PF and Ex.P.13 Vehicle Seizure Mahazar, which clearly disclosed that, due to negligence on the part of the driver of the offending Water Tanker itself, the said accident was taken place, which ran over on the two legs of the Petitioner, when he was sleeping outside the shed and due to the said impact, he had sustained three grievous injuries on his both legs and he took 12 M.V.C.NO.2971/2014 (SCCH-7) treatment to the said accidental injuries, initially at St. John's Medical College Hospital, Bangalore and thereafter, at Sanjay Gandhi Hospital, by admitting as an inpatient from 18.02.2014 to 05.04.2014, i.e., for 47 days and there was no negligence on the part of the Petitioner, which is clear from the following discussion. Further, it is also clear from the contents of the said material documents that, at the time of accident, the Petitioner was a laborer in Sacket Engineering Pvt. Ltd., a Development and Construction Company and at the time of accident, he was sleeping outside the shed, which was provided by the said Company to him. Furthermore, the P.W.1 in his cross- examination has also clearly stated that, he was working at Socket Engineering Pvt. Ltd., and the person relating to the construction Company were shifted him to the Hospital for treatment immediately after the accident and he has informed to the Hospital Authority about how he sustained injuries. Furthermore, the P.W.1 has clearly denied the suggestiona put to him by the Respondent No.2 that, the Water Tanker has not caused any accident to him and it was not caused accident, when taking reverse and a false complaint is lodged about the alleged accident and the offending Water Tanker never involved in the alleged accident and he has not sustained any injuries on his right and left legs in the alleged accident and though he had knowledge about the moving of the Water Tanker, he was sleeping on that day outside the shed. From this, it appears that, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth to consider its defence. Furthermore, though the Respondents No.1 and 2 have filed the written statements to contest the case of the Petitioner, they have not adduced any evidence on their behalf to consider their defence. Form this, it is made crystal clear that, nothing is 13 M.V.C.NO.2971/2014 (SCCH-7) available on record on behalf of the Respondents No.1 and 2 to consider their defence and to negative the case of the Petitioner.
14. The contents of Ex.P.1 FIR and Ex.P.2 Complaint disclosed that, the Petitioner himself has lodged Ex.P.2 Complaint before the H.S.R. Layout Traffic Police as against the driver of the offending Water Tanker bearing Registration No.KA- 01-AC-9640 by alleging that, on 18.02.2014, when he was sleeping outside shed, at 12.10 a.m., the driver of the offending Water Tanker bearing Registration No.KA-01-AC-9640 came with negligently by taking reverse and at that time, it ran over on his two legs and thigh and due to the said impact, he had sustained fracture injuries on his both legs and he was shifted to St. John's Hospital and thereafter, he was shifted to Sanjay Gandhi Hospital and by admitting as an inpatient, he has taken treatment to the accidental injuries and as such, he prayed to take necessary legal action as against the driver of the offending Water Tanker as his negligence, he had sustained fracture injuries on his leg and based on the Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the offending Water Tanker for the offence punishable under Section 338 of IPC under Crime No.139/2014. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is 14 days delay in lodging Ex.P.2 Complaint by the Petitioner himself. But, it also no way affect to consider the case of the Petitioner, as, it is clear from the above said Police and medical documents that, immediately after the accident, the Petitioner was admitted in the Hospital as an inpatient to take treatment to the said 3 grievous injuries and he was unable to give complaint and he has informed to the Hospital Authority about the case of the injuries and the said Police themselves came to the Hospital and taken 14 M.V.C.NO.2971/2014 (SCCH-7) statement of the Petitioner in respect of the said accident and thereafter, registered a criminal case based on Ex.P.2 Complaint. Furthermore, since the Petitioner had sustained three grievous injuries on his both legs and immediately after the accident, he was admitted in the Hospital as an inpatient, his family members were unable to lodge a complaint before the jurisdictional Police immediately after the accident.
15. The contents of Ex.P.10 Spot Mahazar, Ex.P.11 Spot Hand Sketch, Ex.P.12 PF and Ex.P.13 Vehicle Seizure Mahazar further clearly disclosed that, in the said accident, the offending Water Tanker bearing Registration No.KA-01-AC-9640 as well as its driver are very much involved and the entire negligence is on the part of the driver of the offending Water Tanker as he has negligently moved the said Water Tanker in a reverse gear negligently and without observing the Petitioner, who was sleeping outside his shed and due to which, the Petitioner had sustained grievous injuries on his both legs, which are crush and fractured. It is also clear from the contents of Ex.P.11 Spot Hand Sketch that, the said accident was taken place by the edge of the road, i.e., abutting to the shed, wherein, the Petitioner was residing at the time of accident.
16. The contents of Ex.P.3 Medical documents issued by St. John Medical College Hospital and Ex.P.4 Wound Certificate clearly disclosed that, with a alleged history of road traffic accident, when he was sleeping outside the shed, the Water Tanker while taking reverse, it went on the legs of the Petitioner and he has sustained injuries on right femur and left tibia, which was taken place on 18.02.2014 at 12.30 a.m., and on 18.02.2014 at 2.00 a.m., itself, the Petitioner was admitted in St. John 15 M.V.C.NO.2971/2014 (SCCH-7) Medical College Hospital, Bangalore and on examination, it is found that, he had sustained injuries, i.e., tenderness, swelling and deformity over right thigh X-ray right thigh, fracture right femur shaft, deep abrasion over right lateral mallelous with swelling and tenderness X-ray right ankle, right medial mallelous fracture, Lacerated wound with a flap behind left knee measuring 15 cm X 10 cm X-ray left knee, left medial femoral condyle fracture, i.e., three grievous injuries, which are fresh in nature.
17. The contents of Ex.P.5 Case Summary and Discharge and Ex.P.7 X-ray Films 5 in numbers further clearly disclosed that, by admitting as an inpatient from 18.02.2014 to 05.04.2014 at Sanjay Gandhi Hospital, the Petitioner took treatment to the said accidental injuries, i.e., for 47 days. It is also clearly mentioned in the said medical document that, with alleged history of road traffic accident, the Petitioner had sustained said injuries and took treatment to the said accidental injuries at St. John Medical College Hospital and Sanjay Gandhi Hospital. From this medical evidence, it clearly goes to show that, in the said road traffic accident, the Petitioner had sustained three grievous injuries, which are crush and fracture.
18. The P.W.2, who is a treated Doctor has also stated in his examination-in-chief that, the Petitioner came to their Hospital on 18.02.2014 with alleged history of road traffic accident, wherein, he had sustained injuries to right femur, right ankle and left knee complained of pain, swelling and inability to move splints was given and hemodynamically stabilized and he has sustained injuries, i.e., fracture shaft of right femur, fracture medial malleoli right ankle, fracture intercondylar left femur and multiple abrasions right ankle and left knee. The P.W.2 has also 16 M.V.C.NO.2971/2014 (SCCH-7) produced Ex.P.14 Inpatient Record. The said oral version of P.W.2 as well as the contents of Ex.P.14 Inpatient Record clearly corroborated with the above said medical evidence in respect of the injuries sustained by the Petitioner in the said accident as well as the line of treatment taken to the said accidental injuries by admitting as an inpatient for 47 days from 18.02.2014 to 05.04.2014 at Sanjay Gandhi Hospital.
19. The contents of Ex.P.9 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to negligence on the part of the driver of the offending Water Tanker bearing Registration No.KA-01-AC-9640 by its driver itself, the said accident was taken place on 17.02.2014 at 12.10 a.m., when the Petitioner was sleeping outside the shed, which was situated at Sy.No.16/2, Junnasandra, Sarjapura Road, Bangalore, which was provided by Sacket Engineering Pvt. Ltd., as the Petitioner was one of its labourer and the said offending Water Tanker ran over on both legs of Petitioner, when the driver of the said Water Tanker was taking it on reverse and due to the said impact, both legs of the Petitioner were fractured and sustained grievous injuries and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Water Tanker for the offence punishable under Section 338 of IPC. There is no allegation made by the Investigating Officer in Ex.P.9 Charge Sheet as against the Petitioner in causing the said accident.
20. The contents of the above said Police and medical documents have not been disputed by the Respondents while cross-examining the P.W.1. From the said material evidence, 17 M.V.C.NO.2971/2014 (SCCH-7) both oral and documentary, it clearly goes to show that, the entire negligence is on the part of the driver of the offending Water Tanker bearing Registration No.KA-01-AC-9640 and there was no negligence on the part of the Petitioner in the commission of the said accident and it was taken place, when the driver of the offending Water Tanker suddenly moved in a reverse gear without observing the Petitioner, who was sleeping outside the shed and the said Water Tanker ran over on both the legs of the Petitioner and due to the said impact, he had sustained bleeding, crush and fracture injuries on his both legs. The very involvement of the offending Water Tanker bearing Registration No.KA-01-AC-9640 as well as its driver in the said accident as well as the injuries sustained by the Petitioner in the said accident, are clearly proved by the Petitioner. Accordingly, I answered Issue No.1 in the Affirmative.
21. ISSUE NO.2 :- The Petitioner has produced Ex.P.8 Election Identity Card relating to him, which disclosed that, as on 01.01.2003, he was 49 years old. The date of accident is on 18.02.2014. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 61 years old. Hence, the age of the Petitioner is considered as 61 years at the time of accident.
22. The P.W.1 has stated that, at the time of accident, he was working as construction Labourer in Sacket Engineering Pvt. Ltd., and earning Rupees 10,000/- per month. Admittedly, except his oral version, the Petitioner has not produced any authenticated documents to show his avocation and income at the time of accident. But, it no way affect to consider the case of the Petitioner that, he was working as a construction labourer in Sacket Engineering Pvt. Ltd., as, above said Police and Medical 18 M.V.C.NO.2971/2014 (SCCH-7) documents clearly disclosed that, at the time of accident, he was residing in the shed, which was allotted to the construction labourers by Socket Engineering Pvt. Ltd., and the Petitioner was a construction labourer under Sacket Engineering Pvt. Ltd. Therefore, based on the above said material evidence, it can be safely held that, at the time of accident, the Petitioner was working as a construction labourer in Sacket Engineering Pvt. Ltd., But, to consider his income of Rupees 10,000/- per month, the Petitioner has not produced any authenticated documents issued by the said Company. However, at the time of accident, the Petitioner was aged 61 years, which disclosed that, he is having wife and children. It is also clear from the contents of the above said Police and medical documents that, at the time of accident, he was working as a construction labourer. Now a days, the labour or coolie can get minimum wages of Rupees 8,000/- per month. By considering the same, in the absence of the material evidence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident. Hence, the notional income of the Petitioner is considered as Rupees 8,000/- per month at the time of accident.
23. The P.W.1 has stated that, because of the accident, he suffered buries all over the body and fracture of shaft of right femur, fracture of medial malleolus right with intercondylar fracture left femur, with akin injury left popliteal foisa and right ankle and other grievous injuries all over the body. He has further stated that, during the course of treatment, three time surgery were conducted on him and in the first operation that was held on 05.03.2014 implants were inserted in his legs and second operation was conducted on 15.03.2014 and third operation was conducted on 28.03.2014. He has further stated 19 M.V.C.NO.2971/2014 (SCCH-7) that, he was treated as an inpatient in the said Hospital nearly for one and half months and on 05.04.2014, he was discharged and on discharge, the Doctors had advised him for follow up treatment, restricted movement and complete bed rest with well nourished food and during that period, they advised him to walk with the help of crutches. No doubt, the Petitioner has not produced any medical documents to show that, after discharge, he has taken follow-up treatment as per the advise of the treated Doctor. But, he has clearly stated in his cross-examination that, till last 15 days, he was taking follow-up treatment. The P.W.2 has stated that, the Petitioner underwent surgery on 05.03.2014 in form intramedullary interlocking nail for right femur and conservative management in form on below knee slab for right fracture medical molleoli. He has further stated that, the Petitioner came before him to take follow-up treatment after the discharge and till the date of assessment of the disability. Based on Ex.P.4 Wound Certificate and Ex.P.5 Case Summary and Discharge, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained tenderness, swelling and deformity over right thigh X-ray right thigh, fracture right femur shaft, deep abrasion over right lateral mallelous with swelling and tenderness X-ray right ankle, right medial mallelous fracture, Lacerated wound with a flap behind left knee measuring 15 cm X 10 cm X-ray left knee, left medial femoral condyle fracture and he had taken treatment to the said accidental injuries at Sanjay Gandhi Hospital by admitting as an inpatient from 18.02.2014 to 05.04.2014, i.e., for 47 days and the said injuries sustained by the Petitioner in the said road traffic accident are three grievous injuries. It is clearly mentioned in Ex.P.5 Case Summary and Discharge, Ex.P.14 Inpatient Record and Ex.P.15 Outpatient Record that, on 05.03.2014, 20 M.V.C.NO.2971/2014 (SCCH-7) 15.03.2014 and 28.03.2014, the Petitioner was underwent surgery and CRIF CI MIL nail AVR implant is inserted to the Petitioner in fracture site. It is also clearly mentioned in Ex.P.5 Case Summary and Discharge that, the Petitioner was advised for non-weight bearing mobilization, right knee both, restrictions of movement knee both, at the time of discharge. Since, during the course treatment, the Petitioner was underwent surgery for three times and since, the Petitioner is having implants, the follow up treatment taken by the Petitioner after discharge from the Hospital as stated by the P.W.1 and P.W.2 can very well be believed and accept. As per the advise of the Doctors, the Petitioner had taken follow-up treatment after his discharge.
24. The P.W.1 has stated that, the injuries and fractures caused permanent disablement and the fracture are not united properly and the movement of his both legs are restricted and he has not limping gait and his legs are shortened and at the time of movement, it causes pain and these disabilities cannot cured. He has further stated that, the Doctors told that, he have bear this pain and sufferings through his life and because of the this, he is totally bed ridden, cannot walk, stand, sit, squat on the floor, cannot lift or carry weight and undergoing deep mental shock, pain and sufferings and since the injuries are permanent in nature and he is not able to sit for Indian toileting and it is menial physical work and while working it causes heavy pain and he is not able to discharge his work as earlier. He has further stated that, due to the accident, he is not able to attend his work, resulted in permanent loss of earnings and earning capacity and put to great financial hardship.
21 M.V.C.NO.2971/2014(SCCH-7)
25. The P.W.2 has stated that, on 24.04.2015, the Petitioner came for disability assessment and noted the points, i.e., range of movements of right knee, hip and ankle restricted, healed scar mark over right hip noted, skin healed with secondary intention noted on left popliteal fossa and right ankle, swelling of both ankle and left knee was seen, thickening of medial part of ankle joint and left knee condylar area noted and daily activities cross leg sitting, squatting for using Indian toilets were found to be difficulty in both limbs. By considering the mobility component relating to active muscle power, active range of movement relating to hip, knee, ankle and foot and muscle power relating to hip, knee, ankle and foot, stability component and additional points, the P.W.2 has opined based on the medical guidelines that, the Petitioner has got permanent physical disability for limb is 49.8% and to the whole body 17% and the injuries are permanent in nature and the Petitioner will have difficulty in doing heavy manual work.
26. No doubt, the P.W.2 in his cross-examination has stated that, he has not taken X-ray Films and now the fractures are united and the Petitioner can do the supervisor work or to look after the building with little difficulty.
27. But, based on the said evidence elicited from the mouth of P.W.2 by the Respondent No.2, it cannot be said that, due to the said accidental injuries, the Petitioner is not suffering from permanent physical disability of 17% to the whole body as stated by the P.W.2, as Ex.P.4 Wound Certificate and Ex.P.5 Case Summary and Discharge clearly disclosed that, in the said road traffic accident, the Petitioner had sustained tenderness, swelling and deformity over right thigh X-ray right thigh, fracture 22 M.V.C.NO.2971/2014 (SCCH-7) right femur shaft, deep abrasion over right lateral mallelous with swelling and tenderness X-ray right ankle, right medial mallelous fracture, Lacerated wound with a flap behind left knee measuring 15 cm X 10 cm X-ray left knee, left medial femoral condyle fracture, i.e., both legs, which grievous in nature and at the time of accident, the Petitioner was working as a construction labourer, which very much requires physical strength. Further the P.W.2 in his cross-examination has clearly stated that, implants are inserted in right femur and lower limb includes both the legs and he has calculated the assessment of the lower limb and right lower limb and the persons, who are doing coolie works are called as heavy manual work.
28. Based on the medical documents, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained crush injuries on his both legs and at the time of accident, he was 61 years old and by admitting as an inpatient for a period of 47 days, he took treatment to the said accidental injuries. It is also observed and come to the conclusion by this Tribunal that, at the time of accident, the Petitioner was working as a construction labourer. The nature of the said accidental injuries definitely caused to the Petitioner to do his heavy work as he was a construction labourer at the time of accident. For physical fitness, strength and free movements, all the components are very much required to do the manual work. Therefore, whatever the difficulties and disabilities stated by the P.W.1 and P.W.2, which is arising out of the accidental injuries to the Petitioner in the accident are permanent in nature and as such, the permanent physical and functional disability involved in doing the nature of work by the Petitioner, the said 17% disability to the whole body is considered 23 M.V.C.NO.2971/2014 (SCCH-7) as permanent physical and functional disability of the Petitioner, which is arising out of the accidental injuries. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 17% to the whole body, which is believable and acceptable one. Therefore, the Petitioner is entitled for compensation under differing heads.
29. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 17%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 17%.
30. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 61 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 7.
31. As the Petitioner is suffering from permanent physical and functional disability of 17% to the whole body. The notional income of the Petitioner is already considered as Rupees 8,000/- per month. Therefore, the loss arising out of the said 17% disability for monthly income of Rupees 8,000/- by applying multiplier 7 comes to Rupees 1,14,240/-, i.e., (Rs.8,000/- x 12 x 7 x 17%).
32. As per Ex.P.4 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained three grievous injuries. The Petitioner was in the Hospital as an inpatient from 24 M.V.C.NO.2971/2014 (SCCH-7) 18.02.2014 to 05.04.2014, i.e., for 47 days. Further, at the time of accident, the Petitioner was 61 years old. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
33. As it is already observed that, the age of the Petitioner was 61 years. He has to lead remaining his entire life with 17% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
34. The Petitioner had sustained three grievous injuries and he was in the Hospital as an inpatient for 47 days and he could not do any work at least for 4 months and thereby, he deprived the income. Therefore, at the rate of Rupees 8,000/- per month, a sum of Rupees 32,000/- is awarded towards loss of income during the laid up period.
35. The P.W.1 has stated that, he has spent more than Rupees 2,00,000/- towards treatment and medicine. He has further stated that, he spent more than Rupees 2,00,000/- towards medicine, conveyance, nourishment and other incidental expenses. In this regard, the Petitioner has only produced Ex.P.6 Medical Bills 22 in numbers, which is amounting of Rupees 56,264-09. The Petitioner has taken treatment at St.John's Medical College Hospital and Sanjay Gandhi Hospital, wherein, he was taken treatment as an inpatient from 18.02.2014 to 05.04.2014, i.e., for 47 days. Considering the nature of the injury and line of treatment given to the Petitioner, the possibility of 25 M.V.C.NO.2971/2014 (SCCH-7) spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 56,264-09, which is rounded of Rupees 56,264/- to the Petitioner.
36. The P.W.1 has stated that, after the discharge, the Doctors have advised him to go another operation for removal of implants, which requires approximately Rupees 1,00,000/- and he was advised to take follow-up treatment. The P.W.2 has stated that, the Petitioner requires surgery in the form of implant with approximate cost of Rupees 20,000/- in their Hospital. It is clearly mentioned in Ex.P.5 Discharge Summary about CRIF with IMIL nail AVR implants 10 x 38 was done on 03.03.2014, SSG to left Popliteal fossa under SA was done on 15.03.2014 and SSG(R) ankle under SA was done on 28.03.2014, which disclosed about the insertion of implants in situ to the Petitioner. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses and its follow- up treatment. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/- to the Petitioner.
37. As the Petitioner was taken treatment as an inpatient for 47 days, it is necessary to award a sum of Rupees 8,000/- towards conveyance charges, Rupees 8,000/- towards attendant charges and Rupees 12,000/- towards food, nourishment and diet charges etc.,
38. In this way, the Petitioner is entitled for the following amount of compensation:-
26 M.V.C.NO.2971/2014(SCCH-7) Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs. 1,14,240-00 arising out of 17% Disability
2. Pain and sufferings Rs. 50,000-00
3. Loss of amenities of life Rs. 20,000-00 Loss of income during laid
4. Rs. 32,000-00 up period
5. Actual medical expenses Rs. 56,264-00
6. Future medical expenses Rs. 10,000-00
7. Conveyance Rs. 8,000-00
8. Attendant Charges Rs. 8,000-00 Food, Nourishment &
9. Rs. 12,000-00 Diet charges TOTAL Rs. 3,10,504-00
39. In all, the Petitioner is entitled for total compensation of Rupees 3,10,504/- along with interest at the rate of 6% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment.
40. Admittedly, the Petitioner has not produced any authenticated documents to show that, he is residing at Bangalore. Though the P.W.1, who is the Petitioner, has stated in his cross-examination that, now he is residing at Sarjapura, Bangalore and he has no hurdle to produce the documents to show that, he is residing at Sarjapura, Bangalore, he has not produced any documents to consider the same. But, based on the same, it cannot be said that, the Petitioner is not residing at Bangalore and as such, this Tribunal has no jurisdiction to entertain and try the present petition, as, it is very much clear from the above said medical and Police documents that, the accident was taken place in the premises of Sacket Engineering Pvt. Ltd., Junnasandra, Sarjapura Road, Bangalore, wherein, the 27 M.V.C.NO.2971/2014 (SCCH-7) construction was going on and at the time of accident, the Petitioner was working as a construction labourer in the construction Company and the accident was taken place in the said place itself, which clearly disclosed that, at the time of accident, the Petitioner is residing at Bangalore. Furthermore, it is not in dispute that, the Respondent No.1, who was a registered owner of the offending Water Tanker, is residing at Bangalore, which is also clear from the cause title of the petition. The same has not been disputed by the Respondent No.2. Hence, this Tribunal has jurisdiction to entertain and try the present petition.
41. The P.W.1 has stated that, the Respondent No.1 is the R.C. Owner and the Respondent No.2 is an insurer of the said vehicle and the insurance issued by the Respondent No.2 was in force at the time of accident and hence, the Respondents are jointly and severally liable to pay the general and special compensation to him.
42. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Water Tanker bearing Registration No.KA-01-AC-9640 as well as its driver, are very much involved in the said road traffic accident, wherein, the Petitioner had sustained three grievous injuries. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is a R.C. Owner and the Respondent No.2 is an insurer of the offending Water Tanker bearing Registration No.KA-01-AC-9640 and its policy No.3003/IM- 00149267/00/000, valid from 17.09.2013 to 16.09.2014. The Respondent No.1 in its written statement has clearly stated that, he is the R.C. Owner of the vehicle bearing Registration No.KA-
28 M.V.C.NO.2971/2014(SCCH-7) 01-AC-9640 and the said vehicle is insured with the Respondent No.2 and the Insurance Policy is inforce as on the date of the accident. From these material facts, which are available on record, it is made crystal clear that, at the time of accident, the Respondent No.1 was a registered owner of the offending Water Tanker bearing Registration No.KA-01-AC-9640.
43. The Respondent No.2 in its written statement has clearly denied the insurance policy and has also contended that, the said vehicle being a commercial vehicle was plied on road without there being a valid permit and fitness certificate. As per the Order dated 27.07.2015 passed on I.A.No.V filed by the Respondent No.2, the Respondent No.1 is directed to produce permit relating to the offending Water Tanker. But, the Respondent No.1 has not complied the said order.
44. But, based on the same, it cannot be said that, at the time of accident, the said offending Water Tanker bearing Registration No.KA-01-AC-9640 was not having a valid permit, fitness certificate and insurance policy, as, on 20.08.2015, by filing I.A.No.VI, the Respondent No.1 has complied the said order and the Respondent No.2 has no objection to the same and clearly admitted the valid permit relating to the said offending Water Tanker. Further, to consider its defence, the Respondent No.2 has not adduced evidence.
45. From the above said materials, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the offending Water Tanker bearing Registration No.KA-01-AC-9640 and its Insurance Policy was valid, which covers the date of accident. To 29 M.V.C.NO.2971/2014 (SCCH-7) deny or discard the same, nothing is available on record on behalf of the Respondents. There is no allegation leveled as against the driver of the offending Water Tanker in Ex.P.9 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive the offending Water Tanker. The violation of the terms and conditions of the Insurance Policy relating to the offending Water Tanker by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of the offending Water Tanker bearing Registration No.KA-01-AC-9640, are jointly and 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.
46. 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 3,10,504/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.2.
30 M.V.C.NO.2971/2014(SCCH-7) 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, 75% shall be released in the name of the Petitioner through account payee cheque, on proper identification.
Remaining 25% 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 her, corrected and then, pronounced by me in the open Court on this, the 14th day of December, 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 : Sri. Kollappa
P.W.2 : Dr.Chidananda K.J.C.
31 M.V.C.NO.2971/2014
(SCCH-7)
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Medical documents issued
by St.John Medical College Hospital
Ex.P.4 : True copy of Wound Certificate
Ex.P.5 : True copy of Case Summary and
Discharge
Ex.P.6 : Medical bills (22 in nos.)
Ex.P.7 : X-ray films (5 in nos.)
Ex.P.8 : Xerox copy of Election Identity Card
(Compared with original, tallied and
returned)
Ex.P.9 : Certified copy of Charge Sheet
Ex.P.10 : Certified copy of Spot Mahazar
Ex.P.11 : Certified copy of Spot Hand Sketch
Ex.P.12 : Certified copy of PF
Ex.P.13 : Certified copy of Vehicle Seizure
Mahazar
Ex.P.14 : Inpatient Record
Ex.P.15 : Outpatient Record
Ex.P.16 : X-ray Films (3 in nos.)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.