Bangalore District Court
Shri N.Umesh Naik vs Icici Lombard General Insurance on 18 December, 2015
Before the Motor Accident Claims Tribunal at Bangalore
(SCCH-8)
Present: Shri P.J. Somashekar B.A., LL.B.,
XII Additional Small Causes Judge
and Member, M.A.C.T., Bangalore.
Dated this the 18th day of December 2015
M.V.C.No.257/2015
Petitioner Shri N.Umesh Naik,
Son of Late Mahalinga Naik,
Aged about 60 years,
Residing at No.12, 7th Main Road,
Poorna Pragna School Main Road,
Havanoor Extension,
Bengaluru-560 073.
(Shri Anitha R. Naik, Advocate)
V/s
Respondents 1. ICICI Lombard General Insurance
Co.Ltd.,
No.89, II Floor,
S.V.R. Complex,
Hosur Main Road,
Madivala,
Bengaluru-560 068.
(Insurer of the car bearing No.KA-
03-MS-4247)
(Policy No.Cover Note No:
81034003
Valid from 29.6.2013 to 28.6.2014
(Shri L.S.Renukappa, Advocate)
2 SCCH-8 MVC 257/2015
2. Shri Sangita Majumdar,
Wife of Ranadip Majumdar,
Residing at No.420, Pradham
Grand, III Cross,
J.R.D. Cross, Domlur,
Bengaluru-560 071.
(RC owner of the car bearing
No.KA-03-MS-4247)
(Exparte)
JUDGMENT
This is a claim petition filed by the petitioner against the respondents under Section 166 of Motor Vehicles Act, 1989, for seeking compensation of Rs.4,00,000/- for the injuries sustained by him in a road traffic accident.
2. The brief facts of the claim petition are as under:
The petitioner being said to be the injured in his claim petition has alleged that, on 2.1.2014 at about 6.30 p.m. he was crossing the D'Souza road from East-West direction by observing all the traffic rules and regulations as well as movement of the vehicle, the driver of the car 3 SCCH-8 MVC 257/2015 bearing No.KA-03-MS-4247 has drove the same in a rash and negligent manner dashed against him. Due to the said impact, he was fell down and sustained grievous injuries. So, immediately he was shifted to Hosmat hospital, wherein he took the treatment as an inpatient by spending huge amount.
3. Prior to the accident he was hale and healthy working as a Organiser at Sainik Kalyana Sangata and Yoga teacher by getting monthly income of Rs.40,000/-. Due to the accidental injuries he could not do the work as before. The accident in question was taken place on the rash and negligent driving of the driver of the car. Thereby, the Ashoknagara Traffic Police have registered the case against the driver of the car in their police station Crime No.4/2014 for the offences punishable u/s 279 and 338 of IPC. The respondent No.1 being the insurer and respondent No.2 being the owner are jointly 4 SCCH-8 MVC 257/2015 and severally liable to pay the compensation and prays for allow the claim petition.
4. In response of the notice, the respondent No.2 did not appear nor file his written statement, as he was placed exparte.
5.The respondent No.1 has appeared through its counsel and filed its written statement in which he has alleged that the claim petition filed by the petitioner is not maintainable in law or on facts and he has denied the averments made in column No.1 to 15 of the claim petition stating that he has no knowledge about the averments made in the claim petition and the petitioner has to put strict proof of the same and either the owner of the offending vehicle nor the jurisdictional police have not complied the mandatory provisions under Section 134(C) and 158(6) of the M.V. Act in furnishing better particulars and he has also denied that on 2.1.2014 at about 6.30 p.m. the petitioner was crossing the road by 5 SCCH-8 MVC 257/2015 observing the traffic rules and regulations as well as movements of the vehicle, the driver of the offending vehicle has drove the same in a rash and negligent manner dashed against the petitioner. As a result, he was fell down and sustained grievous injuries and took the treatment by spending huge amount and the alleged accident was occurred due to the negligence of the petitioner who crossed the road without observing the traffic which resulted the alleged accident and has denied the age, avocation and income of the petitioner and as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence to drive the same, the respondent No.2 being the owner has entrusted the vehicle to the person who was not holding valid and effective driving license, so he has contravened the terms and conditions of the policy, so the respondent No.1 is not liable to pay the compensation and he has admitted about the issuance of the policy in 6 SCCH-8 MVC 257/2015 respect of offending vehicle infavour of respondent No.2 and its validity is from 29.6.2013 to 28.6.2014 and prays for reject the claim petition.
6. On the basis of the pleadings of the parties the following issues are framed.
1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in column No.14, in a road traffic accident on 2.1.2015 at about 6.30 p.m. on opposite to Shalimar building, D'Souza road, Bengaluru due to the rash and negligent driving of the driver of the car bearing registration No.KA- 03-MS-4247?
2. Whether petitioner is entitled for any compensation? If so, to what extent and from whom?
3. What Order or Award?
7. The petitioner in order to prove his case has examined himself as PW1 and got marked the documents 7 SCCH-8 MVC 257/2015 as Ex.P1 to Ex.P11 and he has examined one witness on his behalf as PW2 and got marked the documents as Ex.P12 to Ex.P14. The respondent No.1 has not examined any witness nor marked any documents in its favour.
8. Heard arguments on both side.
9. My finding on the above issues are as under:
Issue No.1: Partly Affirmative
Issue No.2: Partly affirmative
Issue No.3: As per the final order
for the following.
REASONS
10. Issue No.1:
The petitioner being said to be the injured has approached this court on the ground that on 2.1.2014 at about 6.30 p.m. he was crossing the D'Souza road from East-West direction by observing all the traffic rules and 8 SCCH-8 MVC 257/2015 regulations and on the movement of the vehicle, the driver of the car bearing No.KA-03-MS-4247 has drove the same in a rash and negligent manner dashed against him. Due to the said impact, he was fell down and sustained grievous injuries. So, immediately he was shifted to Hosmat hospital and took the treatment as an inpatient by spending huge amount. Thereby, petitioner has filed the instant claim petition against the respondents.
11. The petitioner in order to prove his case has filed his affidavit as his chief-examination as PW1, in which he has stated that on 2.1.2014 at about 6.30 p.m. he was crossing the D'Souza road from East-West direction by observing all the traffic rules and regulations and on the movement of the vehicle, the driver of the car bearing No.KA-03-MS-4247 has drove the same in a rash and negligent manner dashed against him. Due to the said impact, he was fell down and sustained grievous 9 SCCH-8 MVC 257/2015 injuries. So, immediately he was shifted to Hosmat hospital, wherein he took the treatment as inpatient and underwent surgery. The accident in question was taken place on the rash and negligent driving of the driver of the car. Thereby, the Ashoknagar Police have registered the case against driver of the car in their police station Crime No.4/2014 for the offences punishable u/s 279 and 337 of IPC 134(B) R/w S. 187 of IMV Act. The PW1 in his cross-examination has admitted that the alleged road is busy road and there was no zebra cross in the road where he was crossed the road and he has denied that the accident was occurred in the middle of the road, it was taken place when he was just getting down from the footpath and he has denied that the accident was occurred on his own negligence as he was crossing the road where there was no zebra cross to cross the road by the pedestrian.
10 SCCH-8 MVC 257/2015
12. The petitioner in support of his oral evidence has produced the documents marked as Ex.P1 to Ex.P14. Ex.P1 is the information filed by one Umesh, who is none other than the petitioner in which he has stated that on 2.1.2014 at about 6.30 p.m. after attending his personal work was proceeding towards his house on Residency road by walk, when he was crossing the D'Souza road, the driver of the car bearing registration No.KA-03-MH-4247 has drove the same in a rash and negligent manner without observing the traffic rules and regulations dashed against him, as a result he was fell down and sustained grievous injuries, the persons who are gathered on the spot and the car driver were took him to Hosmat hospital and he took the treatment as inpatient since he was under treatment. Thereby he could not lodge the complaint soon after the accident. So, based on the information the Ashokanagar Police have registered the case against the driver of the 11 SCCH-8 MVC 257/2015 car in their police station Crime No.4/2014 for the offences punishable u/s 279 and 337 of IPC and S. 134(B) R/s S. 187 of IMV Act. Though the learned counsel for the respondent No.1 has cross-examined the PW1, but nothing is elicited to disbelieve the evidence of the PW1 and he has also suggested the PW1 that the accident in question was taken place on account of his own negligence, for which he has denied the same. However, he has admitted that there was no zebra cross where he was crossing the road. So, for the proper appreciation of the admission of the PW1 in his cross- examination is necessary for reproduction to consider his contributory negligence, which reds like thus;
£Á£ÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß zÁlÄwÛzÀÝAvÀºÀ ¸ÀݼÀzÀ°è ¥ÁzÁZÁjUÀ¼ÀÄ gÀ¸ÉÛ zÁlĪÀ §UÉÎ D gÀ¸ÉÛAiÀÄ ªÉÄÃ¯É ©½¥ÀnÖUÀ¼À£ÀÄß(f¨Áæ PÁæ¸ï) ºÁQgÀ°®è. £Á£ÀÄ gÀ¸ÉÛ zÁlÄwÛzÉÝ CAvÀ ºÉüÀĪÀ ¸ÀݼÀzÀ°è ¥ÁzÁZÁjUÀ¼ÀÄ gÀ¸ÉÛ zÁlĪÀ §UÉÎ AiÀiÁªÀÅzÉà CªÀPÁ±À E®èzÉà EgÀĪÀAvÀºÀ ¸Àݼz À À°è £Á£ÀÄ gÀ¸ÉÛ 12 SCCH-8 MVC 257/2015 zÁl®Ä ºÉÆÃV £À£Àß vÀ¦à¤AzÀ¯Éà C¥ÀWÁvÀ DVvÀÄÛ CAzÀgÉ ¸ÀjAiÀÄ®è.
13.The above admission of the PW1 in his cross- examination reflects that the petitioner was crossed the road where there was no zebra cross. Thus, this Court drawn its attention on the judgement of the Hon'ble High Court reported in ILR 2004 KAR 1104 in between Koosappa Poojari vs. K. Sadabba and others reads like thus;
MOTOR VEHICLES ACT 1988 (59/88) -
SECTION 173 (1) - CONTRIBUTORY NEGLIGENCE - Claimant had crossed the road where he was not supposed to cross -
HELD - Certain degree of contributory negligence will have to be attributed to him
- If a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident - Pedestrian has to share the negligence along with the driver. 13 SCCH-8 MVC 257/2015
14. On careful perusal of the above said decision, in the said decision his lordship held that, if a pedestrian is crossing over a roadway at any place other than which is meant for pedestrian crossing, he cannot claim any specific precedence and the responsibility for causing the accident and the pedestrian has to share the negligence along with the driver. So, it cannot be said that it was only the driver of the vehicle in question who was solely responsible for the accident and there is no evidence forthcoming to show that it was the pedestrian crossing or whether there were any zebra crossing. So, the claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him.
15. In the instant case also PW1 in his cross- examination has categorically admitted that he has crossed the road where there was no zebra cross. So, there is contributory negligence on the part of the 14 SCCH-8 MVC 257/2015 petitioner to an extent of 20% and rest of the 80% is on the offending vehicle driver, since the respondent has not challenged the Ex.P1 & Ex.P2 nor examined the offending vehicle driver to prove that the entire negligence is on the part of the petitioner for the cause of accident. If that is so, the matter would have different. But the reasons best known to the respondent has not examined either the offending vehicle driver nor the witnesses who are cited in the charge sheet to prove that the entire negligence is on the part of the petitioner for the cause of accident. In the absence of the materials from the respondent side it is clear that there is 80% negligence on the part of the rider of the offending vehicle for the cause of accident. Ex.P3 and Ex.P4 are clearly reflects that the accident was occurred almost in the middle of the road. Though there is a sufficient space towards eastern side of the road to avoid the accident. But the reasons best known to the car driver 15 SCCH-8 MVC 257/2015 has not taken minimum care to avoid the accident. So, on his own negligence the accident was occurred, at the same time petitioner has contributed negligence for the cause of accident as he was crossing the road where there was no zebra cross. So, Ex.P3 and Ex.P4 are supports the case of the petitioner to prove the negligence of the offending vehicle driver to the extent of 80%. Ex.P5 and Ex.P6 are reflects that the petitioner has got admitted to the Hosmat hospital in connection of the injuries sustained by him in a road traffic accident and intimation has been issued to the Sub-inspector of Police, Ashokanagar in respect of accident said to have been taken place on 2.1.2014. Ex.P7 reflects that I.O. after conducting the investigation has found that the accident in question was taken place on account of rash and negligent driving of the offending vehicle driver. Thereby he has charge sheeted against the offending vehicle driver. Ex.P8 to Ex.P14 are reflects that soon 16 SCCH-8 MVC 257/2015 after the accident has got admitted to the Hosmat hospital and took the treatment and underwent surgery and implants in situ. So, the documents marked as Ex.P1 to Ex.P14 are coupled with the oral evidence of PW1 and moreover the respondent No.1 has not led any rebuttal evidence to disprove the oral and documentary evidence of the petitioner. On the other hand, the petitioner has proved his case through oral and documentary evidence that the accident in question was taken place on the rash and negligent driving of the driver of the offending vehicle and the offending vehicle driver has contributed negligence to the extent of 80%. Hence, I answer this issue in partly affirmative.
16. Issue No.2:
The PW1 being the injured in his evidence has clearly stated that on 2.1.2014 at about 6.30 p.m. when he was crossing the road, the driver of the offending vehicle has drove the same in a rash and negligent 17 SCCH-8 MVC 257/2015 manner dashed against him. As a result, he was fell down and sustained the following injuries;
Fracture of neck of femur right hip
17.So, immediately he was shifted to Hosmat Hospital, wherein he took the treatment as inpatient and underwent open and international fixation and he was discharged from the hospital on 6.1.2014, after discharge he took the treatment as inpatient by spending huge amount. Prior to the accident he was hale and healthy by working at defence by getting salary of Rs.30,000/- and apart from the salary he was conducting Yoga classes by getting monthly income of Rs.8,000/-. Due to the accidental injuries he could not able to lead normal like, he cannot walk briskly, cannot climb the stairs, cannot squat, use Indian toilet, cannot walk for long distance, sit or stand for long time and cannot bear weight on his right leg. So, he is limping due to severe pain in his injured part and there is swelling on his right leg. So, he 18 SCCH-8 MVC 257/2015 has sustained permanent disability due to the accidental injuries. PW1 in his cross-examination has admitted that soon after the accident he got admitted to the Hosmat hospital and took the treatment and he was underwent surgery still implants in situ and he has denied that he has not took the treatment as outpatient for the injuries sustained by him in a road traffic accident and he has admitted that in the month of May he has been retired and he has denied that the amount which was spent for his treatment got reimbursed, but he has stated that he has reimbursed only to the extent of Rs.60,000/- out of the medical bill amount which was spent for his treatment in the Hosmat hospital and he has denied that he has created the medical bills and placed it before the court in order to get more compensation.
18. The PW2 being the Orthopaedic Surgeon, in his evidence has stated that the petitioner has met with an 19 SCCH-8 MVC 257/2015 accident said to have been taken place on 2.1.2014 and sustained the following injuries;
Fracture neck of femur right hip
19. So, he got admitted to the hospital on 2.1.2014 and on 5.1.2014 uncemente hemi replacement of right hip was done and discharged from the hospital on 6.1.2014 and recently he has examined the petitioner on 15.10.2015 and found the following difficulties facing by the petitioner;
He has pain and stiffness of the right hip and needs a support to walk, unable to kneel squat, sit crossed legs and has difficulty in climbing stairs and walking on the slopes and difficult in sleeping on the right side.
20. So, the petitioner has sustained permanent physical disability to an extent of 61% of right lower limb and 21% of whole body and he has to undergo one more 20 SCCH-8 MVC 257/2015 surgery for removal of prosthesis and a total hip replacement in future it may costs of Rs.4,00,000/- . The PW2 in his cross-examination has admitted he has not treated the petitioner personally, one Dr.Praveen has conducted surgery since the petitioner has sustained fracture neck of femur right hip, thereby he was underwent surgery and there is chances of union of hip fracture and he has suggested the petitioner to undergo operation for replacement of total hip in future and he has admitted that replacement of hip may occur after 10- 15 years and he has admitted that he has stated physical disability and he has denied that the petitioner is aged about 60 years, thereby he is suffering from disability due to the age factor and he has stated more disability in order to help the petitioner.
21. The PW1 being the injured in his evidence has clearly stated that he has sustained fracture neck of femur right hip, so he was underwent surgery, inspite of 21 SCCH-8 MVC 257/2015 best treatment he could not come to normal position, still he is facing difficulties. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the fracture which was sustained by the petitioner in a road traffic accident and he has also stated about the surgery which was underwent by the petitioner in connection of the injuries sustained by him in a road traffic accident and he has also stated about the complaints and disabilities of the petitioner due to the accidental injuries. So, the evidence of PW2 corroborate the evidence of PW1. So, one thing is clear from the oral and documentary evidence on record that the petitioner has sustained fracture neck of femur right hip, so he was underwent surgery, inspite of best treatment he could not come to normal position, still he is under treatment. Ex.P5 is the wound certificate issued by the Hosmat Hospital, Bangalore clearly reflects that the petitioner has sustained the following injury;
22 SCCH-8 MVC 257/2015
Fracture neck of femur right hip
22. So, the above said injury is grievous in nature. Though the petitioner has not produced original discharge summary, but he has produced xerox discharge summary which is on record, clearly reflects that the petitioner soon after the accident has got admitted to the Hosmat hospital and took the treatment till 6.1.2014 in which it is clear that the petitioner has sustained fracture neck of femur right hip. So, he was underwent uncemented modular bipolar hemiarthoplasty right hip. Ex.P9 is the medical bills reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. Ex.P12 is the outpatient record reflects that the petitioner even after discharge has took the treatment as outpatient. Ex.P13 is the inpatient record of the Hosmat hospital in which it is clear that the petitioner soon after the accident got admitted to the hospital and took the 23 SCCH-8 MVC 257/2015 treatment till 6.1.2014 and underwent surgery. Ex.P14 reflects that the petitioner has underwent surgery and implants in situ. So, the oral and documentary evidence are clearly reflects that the petitioner has sustained fracture neck of femur right hip, so he was underwent surgery and took the treatment as inpatient for a period of five days, inspite of best treatment he could not come to normal position and still he is facing difficulties, So considering the injuries sustained by the petitioner in a road traffic accident and the evidence of PW1 and PW2 as well as duration of treatment, it is just and necessary to grant just compensation to the petitioner in the following heads;
a)Pain and suffering.
The PW1 being the injured in his evidence has clearly stated that he has sustained fracture neck of femur right hip, so he was underwent surgery at Hosmat hospital and took the treatment as an inpatient for a 24 SCCH-8 MVC 257/2015 period of 5 days. PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the treatment taken by the petitioner as inpatient and outpatient. So considering the evidence of the PW1 and PW2 and the injuries sustained by the petitioner as well as the duration of treatment he would have sustained pain and agony for which, it is just and necessary to award compensation of Rs.40,000/- for the above head, it will meet the ends of justice. Hence, Rs.40,000/- is awarded for the above head.
b) Loss of income during laid up period:
The PW1 being the injured in his evidence has stated that prior to the accident he was hale and healthy by working at defence and drawing salary of Rs.30,000/- per month and apart from the salary conducting yoga classes and earning a sum of Rs.8,000/- per month. But the reasons best known to him has not placed any materials to show that prior to the accident he was 25 SCCH-8 MVC 257/2015 working at Defence by getting monthly income of Rs.30,000/- and he has also conducting the Yoga classes by getting an income of Rs.8,000/- per month. In the absence of the materials from the petitioner side it is very difficult to believe the income of the petitioner as alleged in the claim petition. Though the petitioner has produced the documents marked as Ex.P8 reflects that Command Hospital has issued reimbursement of medical bill in which it is clear that the petitioner has submitted the medical bill amount of Rs.93,021/- which was sent by the Hosmat hospital and the amount of Rs.78,305/- has been reimbursed infavour of Hosmat hospital. But nowhere appears that prior to the accident the petitioner was getting monthly salary of Rs.30,000/- nor getting Rs.8,000/- per month out of the Yoga classes. In the absence of the materials and non examination of the concerned authority to establish his income as alleged in the claim petition it is very difficulty to accept the income 26 SCCH-8 MVC 257/2015 as alleged in the claim petition. So considering the age and skill of the petitioner and the present life condition, it is just and necessary to consider the monthly notional income of Rs.7,000/- it will meet the ends of justice. Ex.P5 is the wound certificate clearly reflects that the petitioner has sustained fracture neck of femur right hip. Ex.P13 is the inpatient record reflects that the petitioner has took the treatment from 2.1.2014 to 6.1.2014 for a period of five days as inpatient. Ex.P12 is the out patient record reflects that even after discharge he took the treatment as outpatient. So, considering the duration of treatment he might have lost income for a period of three months. So, three months income comes to Rs.21,000/-. So, Rs.21,000/- is granted for the above head.
c) Medical expenses The PW1 being the injured in his evidence has stated that he has sustained fracture neck of femur right hip and underwent surgery and took the treatment as an 27 SCCH-8 MVC 257/2015 inpatient by spending an amount of Rs.1,75,000/-. But on record he has produced the medical bill amount of Rs.30,744/-. PW1 in his cross-examination has admitted that Rs.60,000/- has been reimbursed, but the full amount which was spent for his treatment has not been reimbursed. Ex.P8 is the reimbursement of medical bill in which an amount of Rs.93,021/- is the medical bill of Hosmat Hospital, out of the said amount Rs.78,305/-
has been reimbursed which was paid to the Hospital. So, it is clear that the petitioner has not reimbursed the entire amount which was spent for his treatment. If at all the petitioner has reimbursed the entire bill amount which was spent for his treatment the question of production of the bill placed on record does not arise. Though the learned counsel for the respondent has disputed the medical bills but nothing is placed on record to show that the petitioner has been reimbursed spent the entire amount which was spent for his treatment. If 28 SCCH-8 MVC 257/2015 that is so, the matter would have different. So, there is a balance of medical bill, that is the reason why the petitioner has placed before the court and medical bills reflects that the petitioner has took the treatment in connection of the injuries sustained by him in a road traffic accident. So, the petitioner is entitled for Rs.30,744/- for the above head.
d) Loss of future earning:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries in a road traffic accident said to have been taken place on 2.1.2014 and took the treatment as an inpatient for a period of 5 days and he was underwent surgery. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. According to him the petitioner has sustained permanent physical disability to 29 SCCH-8 MVC 257/2015 an extent of 61% of right lower limb and 21% of whole body. The PW2 in his cross-examination has admitted that the petitioner has sustained hip fracture. So, he was underwent surgery and at present replacement of hip joint does not arise, after 10-15 years may occur for replacement of hip joint. So, considering the oral and documentary evidence on record it is just and necessary to consider the disability of 15% of the whole body instead of 21%, it will meet the ends of justice. So, his income is already considered as Rs.7,000/- per month.
Ex.P5, Ex.P12 and Ex.P13 reflects that as on the date of the alleged accident the petitioner was aged about 60 years. Therefore, the age of the petitioner is taken into consideration as 60 years as on the date of the alleged accident. So by virtue of the Sarlaverma Vs. Delhi Transport Corporation Ltd., in 2009 ACJ 1298 the multiplier applicable is 9. So the loss of future earning is works out as under;
30 SCCH-8 MVC 257/2015
Rs.7,000X12X9X15/100=Rs.1,13,400/-. Hence, the petitioner is entitled for Rs.1,13,400/- for the above head.
e) Loss of amenities, conveyance, food and nourishment, attendant charges:
The PW1 being the injured in his evidence has clearly stated that he has sustained the injuries in a road traffic accident said to have been taken place on 2.1.2014 and took the treatment as an inpatient for a period of 5 days and he has also took the treatment as an outpatient and underwent operation. The PW2 being the Orthopaedic Surgeon in his evidence has clearly stated about the complaints and disability of the petitioner after the accident. So, considering the evidence of PW1 and PW2 and duration of treatment as well as the complaints and disability of the petitioner after the accident, it is just and necessary to grant Rs.30,000/- for the above head, it 31 SCCH-8 MVC 257/2015 will meet the ends of justice. So, Rs.30,000/- is granted for the above head.
f) Future medical expenses:
The PW1 being the injured in his evidence has clearly stated that he has sustained grievous injuries and underwent surgery and implants are in situ. The PW2 being the Orthopaedic Surgeon in his evidence has stated that the petitioner has to undergo one operation for removal of implants and replacement of hip is also necessary in future, it may costs of Rs4,00,000/- but in his cross-examination has categorically admitted that at present no need for replacement of hip, but replacement of hip may occur after 10-15 years. So, considering the evidence of the PW1 and PW2, it is just and necessary to grant Rs.20,000/- for the above head, it will meet the ends of justice. So, Rs.20,000/- is granted for the above head.32 SCCH-8 MVC 257/2015
23. Thus the total award stands as follows:
1.Pain and suffering Rs. 40,000-00
2.Loss of income during laid Rs. 21,000-00 up period
3.Medical bills Rs. 30,744-00
4.Loss of future earning Rs.1,13,400-00
5.Loss of amenities, Rs. 30,000-00 conveyance, food and nourishment, attendant charges etc.
6.Future medical expenses Rs. 20,000-00 Total Rs.2,55,144-00
24. The respondent No.1 being the insurer in its written statement has admitted about the issuance of the policy in respect of offending vehicle infavour of respondent No.2 and the validity of the policy is from 29.6.2013 to 28.6.2014. The accident was occurred on 12.1.2014. So, as on the date of alleged accident the policy was in existence.
25.The respondent No.1 has taken up the contention that as on the date of the alleged accident the offending vehicle driver was not holding valid and 33 SCCH-8 MVC 257/2015 effective driving licence to drive the same and the second respondent being the owner has entrusted the person who was not holding valid and effective driving license. So, he has contravened the terms and conditions of the policy. But the reasons best known to the respondent has not placed any materials nor examined the concerned authority either RTO or ARTO to show that as on the date of the alleged accident the offending vehicle driver was not holding valid and effective driving licence and moreover Ex.P7 is the final report filed by the I.O., nowhere discloses that the offending vehicle driver was not holding valid and effective driving licence as on the date of the alleged accident. If at all, the driver of the offending vehicle was not holding the valid and effective driving licence the I.O., would have charge sheeted against the offending vehicle driver for the offence punishable under Section 181 of MV Act. So, on record there is no material to show that the offending vehicle 34 SCCH-8 MVC 257/2015 driver was not holding valid and effective driving licence as on the date of the alleged accident. So one thing is clear that as on the date of the alleged accident the policy was in existence and the offending vehicle driver was holding valid and effective driving licence. So, the respondent No.2 has taken up the contention in its written statement that there is a contributory negligence for the cause of accident. So, this Tribunal is also considered the contributory negligence of the petitioner as he has crossed the road where there was no zebra cross. So, the respondent Nos. 1 & 2 are jointly and severally liable to pay the compensation. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner to the extent of 80% with interest at the rate of 8% p.a. from the date of petition till its realization. In the result, the issue No.2 is answered as partly in the affirmative. 35 SCCH-8 MVC 257/2015
26. Issue No.3:
In view of my finding on issue Nos.1 & 2, I proceed to pass the following:
ORDER The petition filed under section 166 of M.V. Act is partly allowed, with costs. The petitioner is entitled for compensation of Rs.2,55,144/- together with interest at the rate of 8% p.a. from the date of the claim petition till its realisation.
The petitioner has contributed the negligence to an extent of 20% for the cause of accident and the car driver has contributed the negligence to an extent of 80% for the cause of accident. Therefore, the respondent Nos.1 & 2 are jointly and severally liable to pay the compensation to the petitioner to an extent of 80%. But in view of the valid insurance policy the respondent No.1 alone is liable to pay the compensation to the petitioner to an extent of 80% with interest at the rate of 8% p.a. from the date of 36 SCCH-8 MVC 257/2015 claim petition till its realization within a period of 30 days from the date of this order.
On deposit of the compensation amount together with interest, 40% of the amount shall be deposited in the name of the petitioner in any nationalised or scheduled bank of her choice for a period of three years and the remaining 60% shall be released to her by means of A/c payee cheque on proper identification. The petitioner is at liberty to withdraw the periodical interest accrued on him deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court on this the 18th day of December 2015.
(P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.
37 SCCH-8 MVC 257/2015ANNEXURE List of the witnesses examined on behalf of petitioner:
PW1 Shri N.Umesh 6.10.2015 PW2 Dr.Krishna Prasad 4.11.2015
List of the documents exhibited on behalf of petitioner:
Ex.P1 True copy of Complaint Ex.P2 True copy of FIR Ex.P3 True copy of Spot Mahazar Ex.P4 True copy of Spot sketch Ex.P5 True copy of Wound Certificate Ex.P6 True copy of MLC Register extract Ex.P7 True copy of Charge sheet Ex.P8 Reimbursement details Ex.P9 Medical bills Ex.P10 Document pertains to physical treatment Ex.P11 Medical prescriptions Ex.P12 Outpatient record Ex.P13 Inpatient record Ex.P14 X-ray
List of the witnesses examined on behalf of respondents:
None 38 SCCH-8 MVC 257/2015 List of the documents marked on behalf of respondents:
Nil (P.J. Somashekar), XII Addl. Judge-Member, MACT, Bangalore.