Bangalore District Court
Kum.Sudha vs The Oriental Insurance Co. Ltd on 10 March, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 10th DAY OF MARCH 2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No. 3738/2014 C/w.M.V.C.No. 3739/2014
PETITIONERS Kum.Sudha,
(in MVC 3738/14) D/o. Gowramma,
Aged about 15 years,
R/at Maranayakanahalli,
Samandur, Anekal taluk,
Bangalore
(Since the petitioner is minor hence
Represented by her mother as a
natural Guardian Smt.Gowramma)
(By Smt.A.Asha, Advocate)
Petitioners: Sri. Manjunath,
(in MVC 3739/14) S/o. Rajappa,
Aged about 22 years,
R/at Mylasandra Village,
Begur - Post,
Bangalore
(By Smt.A.Asha, Advocate)
- V/s -
Respondents: 1. The Oriental Insurance Co. Ltd.,
(in both the cases) No.44/45, Leo Shopping Complex,
Residency road,
Bangalore - 560 025
(Policy No.421600/31/2013/12404
SCCH 1 2 MVC No.3738/14 C/w. 3739 /14
Valid from 27.01.2014 to 26.01.2015)
Insurer of Bus bearing Reg. No.KA-01-
C-3294)
(By Sri/Smt. V.Sridhari Naidu,
Advocate in both the cases)
Respondent No.2 2. Mr.Prashanth R.,
No.49, A.V.Road,
Kalasipalyam,
Bangalore - 560 002
(Owner of vehicle bearing Reg. No.KA-
01-C-3294)
(By Sri B.Anjaneyalu, Advocate in
both the cases)
*******
COMMON JUDGMENT
These two petitions are arising out of the same accident
and therefore, they are disposed off by this common judgment.
2. The guardian of the petitioner in M.V.C. NO.3738/2014
and petitioner in M.V.C.No.3739/2014 have filed these petitions
under Section 166 of Motor Vehicles Act, 1989 seeking
compensation for the injuries sustained by them in the road
traffic accident.
3. Brief facts of the case are that:-
It is the case of the petitioners that, on 01.05.2014 at about
12.30 in the afternoon when the petitioner was traveling along
SCCH 1 3 MVC No.3738/14 C/w. 3739 /14
with one Sudha on his bike bearing Reg.No. KA-01-HB-1346,
near Bhadrareddy House, Kumbaranahalli Gate, Anekal Jigani
Main Road, at that time, the driver of the bus bearing Reg.No.
KA-01-C-3294 drove the same in rash and negligent manner
and dashed against the petitioners, due to which the petitioner
and the minor petitioner fell down and sustained grievous
injuries.
4. Immediately after the accident, both the petitioner
and minor petitioner were shifted to Vijayashree hospital,
wherein both took treatment. The accident was occurred due to
the negligent driving of the driver of the bus bearing Reg.No.
KA-01-C-3294. The Jigani police have registered a case against
the driver of the offending vehicle u/s.379 and 338 of IPC. The
respondent No.1 being the insurer and second respondent being
the owner of the bus bearing Reg.No. KA-01-C-3294 are jointly
and severally liable to pay the compensation to the petitioners.
5. In pursuance of these claim petitions, this Court has
issued notices against the respondents. Respondent No.1 and 2
have appeared before the Court through their respective
counsels and have filed written statement separately.
6. The respondent No.1 in his objection statement has
admitted the issuance of policy in favour of the second
SCCH 1 4 MVC No.3738/14 C/w. 3739 /14
respondent in respect of bus bearing Reg.No. KA-01-C-3294 and
the same was valid as on the date of the accident and the
liability if any is subject to the terms and conditions of the
policy. It is further contended that the second respondent
owner has not complied the statutory obligation under section
134(c) of M.V.Act and the concerned police have not complied
the provisions of section 158 (6) of M.V.Act.
7. Further contended that, the driver of the insured
bus had no valid driving licence to drive the same and it is a
breach of terms and conditions of the Insurance policy and
violation of provisions of M.V.Act, hence they are not liable to
indemnify the owner.
8. It is further contended that, the petitioner has not
impleaded the owner and the insurer of motor cycle as parties
in the claim petition and the said petition is bad for non-joinder
of necessary parties, and hence liable to be dismissed.
9. Further, this respondent specifically denied the
occurrence, mode of accident, involvement of bus bearing
Reg.No. KA-01-C-3294, age, occupation, income of the
petitioners, injuries sustained by them, treatment taken by
them etc. It is further contended that the first respondent
reserves his right to amend its statement of objection and also
SCCH 1 5 MVC No.3738/14 C/w. 3739 /14
to take over the defence of the insured in the event of the owner
does not contest the proceedings under section 170 of M.V.Act.
Hence same is liable to be dismissed.
10. The second respondent also has filed the objection
statement denying all the averments of the petition. Further
contended that, on 01.05.2014 at about 11.30 in the afternoon
the driver of the bus bearing Reg.No. KA-01-C-3294 was driving
the same slowly and steadily near Bhadrareddy house,
Kumbarahalli Gate, Anekal, Jigani Main Road at that time, the
petitioner who was riding his motor cycle bearing Reg.No. KA-
01-HB-1346 while talking over mobile phone by holding the
same in one hand and driving the motor cycle single handedly
without observing the vehicle moving and in a rash and
negligent manner dashed against the 2nd respondent's bus and
fell down and sustained injuries and the pillion rider of the said
motor cycle also sustained injuries. The accident has occurred
due to the rash and negligent riding of the rider of the motor
cycle and there is no fault on the part of the driver of the bus.
11. Further 2nd respondent has contended that, if the
Court comes to the conclusion that the said accident was
caused due to the rash and negligent driving of the driver of the
offending bus, the 2nd respondent has duly insured the vehicle
SCCH 1 6 MVC No.3738/14 C/w. 3739 /14
with the 1st respondent and the 1st respondent is liable to pay
compensation amount if any. Further the compensation
claimed by the petitioner is excessive and speculative and
prayed this Court to dismiss the claim petitions.
12. Based on the pleadings this Court has framed the
following common issues in both the cases:-
ISSUES in both the cases
1. Whether the petitioners prove that they sustained
grievous injuries in a Motor Vehicle Accident that
occurred on 01.05.2014 at about 12.30 p.m. near
Kumbarahalli Gate, Bhadra Reddy house, Anekal,
Jigani Main Road, Bangalore, within the jurisdiction
of Jigani police station on account of rash and
negligent driving of the bus bearing Reg.No. KA-01-
C-3294 by its driver?
2. Whether the respondent No.1 proves that, the
accident occurred on account of negligent act of the
petitioner?
3. Whether the Petitioner is entitled for compensation?
If so, how much and from whom?
4. What order?
13. In order to prove their cases, the guardian of the
petitioner in M.V.C. No.3738/14 is examined as PW.2,
petitioner in M.V.C. No.3739/14 is examined as PW.1, Medical
Officer is examined as PW-3, Doctor is examined as PW.4 and
PW.5 in MVC No.3739/14 and MVC No.3738/14 and have got
marked the documents at Ex.P.1 to 18. On the other hand, the
SCCH 1 7 MVC No.3738/14 C/w. 3739 /14
respondents have got examined the driver as RW.1 and he got
marked one document at Ex.R.1.
14. I heard the arguments of petitioner counsel and
respondents counsel.
15. Having heard the arguments, based on the pleadings
and the evidence available on record, I record my findings on
the above issues as under:-
1) Issue No.1(in both the cases)... In the Affirmative,
2) Issue No.2(in both the cases)... In the Negative,
3) Issue No.3(in both the cases)... Partly in the Affirmative,
4) Issue No.3(in both the cases)... As per final order
for the following:-
REASONS
16. Issue No.1 & 2 ( in both the cases): Since these two
issues are interconnected to each other, taken up together for
discussion in order to avoid repetitions. The petitioners in both
the cases have contended that, the petitioners were proceeding
in a bike bearing Reg.No. KA-01-HB-1346, as a rider and pillion
rider, near Bhadrareddy House, Kumbaranahalli Gate, Anekal
Jigani Main Road, at that time, the driver of the bus bearing
Reg.No. KA-01-C-3294 drove the same in rash and negligent
manner and dashed against the petitioners, due to which the
petitioner and the minor petitioner fell down and sustained
grievous injuries.
17. The petitioner in M.V.C.No.3739/2014 is examined as
PW-1 and guardian of the minor petitioner is examined as PW-2
SCCH 1 8 MVC No.3738/14 C/w. 3739 /14
in MVC No.3738/2014 and PW-1 has got marked the
documents F.I.R., Mahazar, Police intimation, Charge sheet as
Ex.P.1, 3 to 5.
18. The PW.1 was subjected to cross-examination and in
the cross-examination it is suggested that, he did not know the
driving of the motorcycle and inspite of it he was talking with
pillion rider in the motorcycle and the accident was occurred
due to his negligence and the same was denied. It is suggested
that, it is a self accident and the same was denied. It is
suggested that, a false complaint is lodged against the driver of
the bus and the same was denied. It is suggested that, he was
not aware of riding the motorcycle and he was learning the
motorcycle and in that process the accident was occurred and
the same was denied. It is suggested that, there was no any
insurance to his brother's vehicle and he is giving false evidence
before the court and the same was denied.
19. The petitioners have also examined the guardian of
the petitioner in MVC No.3738/2014 as PW-2 and she
reiterated in her evidence that, the accident was occurred due
to rash and negligence on the part of the driver of the bus. In
the cross examination it is elicited that, she does not know how
the accident was occurred. It is suggested that, the PW.1 and
SCCH 1 9 MVC No.3738/14 C/w. 3739 /14
her daughter were talking each other while proceeding in the
motor cycle and same was denied by her and she says she is
not aware of the same.
20. On the other hand the respondents have examined
the driver of the bus as RW.1 and in his evidence he says, he
was driving the bus carefully and cautiously on the left side of
the road, at that time the rider of the motor cycle who was
riding the same in a rash and negligent manner he could not
able to control the motor cycle when the driver of the auto
rickshaw was proceeding near the pit and at that time in order
to avoid the accident the motor cyclist came and dashed his
vehicle against the bus, due to the impact the petitioners fell
down and sustained grievous injuries.
21. RW.1 was subjected to cross examination by the
petitioner counsel. In the cross examination he says, all police
records discloses that the accident was occurred due to his
negligence. It is suggested that, the accident was occurred due
to his negligence, and he went and dashed the two wheeler and
the same was denied. He admits he has not given any
complaint. It is suggested that, accident was occurred due to
his negligence and in order to absolve his liability, he is giving
false evidence before the court and the same was denied.
SCCH 1 10 MVC No.3738/14 C/w. 3739 /14
22. The counsel for the respondent No.1 has suggested
that, the rider of the motor cycle could not able to control his
motor cycle when the driver of the auto rickshaw was
proceeding near the pit and at that time in order to avoid the
accident the motor cyclist came and dashed his vehicle and the
said suggestion was admitted. He claims that, the police told
him to plead guilty that nothing will happen and hence he
pleaded guilty. Further admits that, the rider of motor cycle who
was coming along with the pillion rider talking each other and
came in a high speed and hence an accident was occurred.
23. Now let me consider the evidence available before the
Court. Though the PW.1 and 2 have reiterated the allegation
made against the driver of the bus, it is important to note that,
PW.2 is not an eye witness to the accident, hence much
importance cannot be given to PW.2 evidence with regard to the
negligence. Now the evidence remains before the court is the
evidence of PW.1 and RW.1 since both of them makes allegation
against each other. The PW.1 claims that, the accident was
occurred due to rash and negligence on the part of the driver of
the bus and the RW.1 claims that, the accident was occurred
due to the negligence on the part of the PW.1. It is suggested to
PW.1 in the cross examination that, he was not aware of riding
SCCH 1 11 MVC No.3738/14 C/w. 3739 /14
of motor cycle and inspite of that, both rider and pillion rider
were talking each other and hence due to their negligence the
accident was occurred and the same was denied. It is
important to note that, in the cross examination of PW.1
regarding negligence on his part nothing is elicited except the
suggestions. No doubt it is elicited that the PW.1 lost the driving
licence at the time of the accident and he has not given any
appropriate answer, whether he got the driving licence and
petitioner has also not produced the driving licence. The
question before the court is whether he has caused the
accident. On perusal of evidence of RW.1 he categorically
admits that, he has not given the complaint and when he makes
an allegation against the rider of the motor cycle, he would have
given any complaint. He claims that, the rider of motor cycle
was riding the same in a rash and negligent manner in a 100
kms. speed.
24. On perusal of Ex.P1 the accident was occurred on
01.05.2014 at 12.30 noon and complaint was lodged on the
same day at 15 hrs. by the brother of the PW.1. He makes a
specific allegation against the driver of the bus that, he drove
the same in a rash and negligent manner and dashed against
the motor cycle which was coming in the opposite direction.
SCCH 1 12 MVC No.3738/14 C/w. 3739 /14
The police have investigated the matter and filed the Charge
Sheet in terms of Ex.P5 and Final report discloses that, the
accident was occurred due to the negligence who came in a rash
and negligent manner and dashed the motor cycle. It is
important to note that, no sketch is produced before the court
and whether the Sketch has been prepared or not, it is not
known to the witness who has spoken about the accident.
25. On perusal of the Mahazar Ex.P3 it discloses that,
the accident was occurred on the tar road and the width of the
said road is 24 feet and also there is a mud foot path on either
sides of the road measuring 5 feet. It also discloses that, the
right portion of the head light of the bus was damaged and
motor cycle front head light, wheel, handle was completely
damaged. Vehicles were seized and subjected to IMV report and
IMV report is not placed before the court. Ex.P4 says that,
motor vehicle inspector inspected the vehicle involved in the
accident and says detailed report will be sent to Investigating
Officer and the same is not placed before the court. In the
absence of IMV report and Sketch this court has to rely upon
only the admission Made by PW.1 and RW.1. I have already
pointed out that, in the cross examination nothing is elicited
from the mouth of PW.1 with regard to his negligence, except
SCCH 1 13 MVC No.3738/14 C/w. 3739 /14
eliciting the answer that, he lost driving licence. The counsel
appearing for the respondent vehemently contended that the
PW.1 has not produced the driving licence, hence this court has
to take note of the contributory negligence. Here it has to be
noted that, while taking the contributory negligence there must
be cogent evidence before the court with regard to the
negligence. The RW.1 who is the driver of the bus has
categorically admitted that, he has not lodged any complaint
against the rider and what made him not to lodge the complaint
against the rider of the motor cycle is not been explained by the
RW.1. If really the accident was occurred due to the negligence
on the part of the motor cyclist, immediately the driver of the
bus would have lodged the complaint. Also it is not his case
that, he made an attempt to lodge the complaint and police
have refused to take the complaint, he has only taken the
defence that, the rider and pillion rider were talking each other,
hence the accident was occurred. In order to substantiate the
same no material is placed before the court. The police have
investigated the matter and filed the Charge Sheet against the
driver of the bus and the same is not been disputed.
26. In order to come to the conclusion of contributory
negligence, there must be cogent evidence before this court. In
SCCH 1 14 MVC No.3738/14 C/w. 3739 /14
the recent judgment reported in 2014 Kant MAC 330 (SC)
(Meera Devi & others Vs. Himachal Road Transportation &
others) wherein it was held as under:-
"....No cogent evidence to prove plea of
contributory negligence - Doctrine of common
law cannot be applied - Compensation awarded
by Tribunal Just and proper...."
In view of the judgment referred supra and in the absence
of cogent evidence as against the evidence of PW.1, this court
cannot believe the version of the respondent that, the accident
occurred on account of negligence on the part of PW.1. Hence I
am of the opinion that the accident was occurred due to the
rash and negligent driving of the offending vehicle bus bearing
Reg.No. KA-01-C-3294 by its driver. Hence, I answer Issue
No.1 in the Affirmative and Issue No.2 in the Negative.
27. ISSUE No.3 (in M.V.C.No.3738/2014): It is the
contention of the PW-2 that her daughter has sustained injuries
in the road traffic accident. In order to substantiate her
contention she has produced Wound certificate which is marked
as Ex.P11 which discloses that minor petitioner has sustained
C.L.W. to left side forehead 2x½x½ cms. Doctor has opined that
the injury is grievous in nature. The Discharge Summary which
SCCH 1 15 MVC No.3738/14 C/w. 3739 /14
is marked as Ex.P12 discloses that, the minor Petitioner took
treatment at Vijayashree hospital as an inpatient from
01.05.2014 to 10.05.2014 for a period of 10 days. She was
treated with medicines and wound suturing.
28. The guardian of the minor petitioner who has been
examined as PW.2 in the cross examination admits that, her
daughter was 16 year old at the time of the accident. It is
suggested that, her daughter has sustained simple injuries and
she is not having any difficulties and the same was denied. It
is suggested that, medical bills are created and the same was
denied. It is suggested that, her daughter was not doing any
coolie work and only in ordered to get compensation she is
giving false evidence before the court and the same was denied.
29. To prove the disability suffered by the minor
petitioner, PW-2 has examined the doctor as PW-5. Doctor in
his evidence he has stated that, patient suffered head injury
with Cerebral edema, soft tissue contusion in the bifrontal
region and she was treated conservatively and discharged on
10.05.2014. Now she complains of severe headache, blurred
vision, burring sound feeling, loss of smelling sensation. Doctor
has assessed the disability at 10%. PW.5 was subjected to
cross-examination. It is elicited that, he has not treated the
SCCH 1 16 MVC No.3738/14 C/w. 3739 /14
patient and he has assessed only the disability. Witness
volunteers that he has consulted the Neurologist. He admits
that, he has not specified in his affidavit that the disability is in
respect of the whole body but it is in respect of whole body.
30. Now let me appreciate both the oral and
documentary evidence available before the Court. On perusal of
the wound certificate which is marked as Ex.P.11 it is clear
that, the petitioner has sustained the C.L.W. to left side
forehead with Cerebral edema, extraclavicle soft tissue
contusion in the bifrontal region and PW-2 has produced
medical bills to the tune of Rs.56,505/-.
31. The Apex Court in the Judgment 2013 ACJ 2445
(Mallikarjuna Vs. Divisional Manager, National Insurance Co.
Ltd., and another) has awarded compensation of Rs.1,00,000/-
in a case of disability of 10%. In the case on hand, also minor
petitioner has sustained disability of 10%.
32. It is important to note that the petitioner is a minor
who is aged about 15 years and has sustained head injury in
terms of Ex.P.11 and doctor has opined the injury is grievous in
nature and the petitioner took treatment at Vijayashree
hospital as inpatient for a period of 10 days and the cost of
medical expenses comes around Rs.56,505/- , though PW-2 has
SCCH 1 17 MVC No.3738/14 C/w. 3739 /14
claimed they have spent Rs.80,000/- and there is no material
for spending the same. For having considered the nature of the
injuries which is mentioned in the Wound certificate and she is
aged about 15 years and doctor who is examined as PW-5 has
assessed the disability caused to the minor petitioner at 10%
and for having taken note of the conservative treatment taken
by the minor petitioner it is a fit case to rely upon the judgment
of Apex Court 2013 ACJ 2445 (Mallikarjuna Vs. Divisional
Manager, National Insurance Co. Ltd., and another). In this
judgment the Apex Court observed the disability within 10%, a
compensation of Rs.1,00,000/- has to be awarded and more
than 10% an amount of Rs.3,00,000/- has to be awarded. I
have already pointed out that doctor has assessed the disability
at 10% and injured is 15 years and has sustained head injury.
During the treatment period the parents might have not attend
their duty and may have suffered the loss of income. Hence, it is
a fit case to award global compensation of Rs.1,25,000/- to the
minor petitioner which includes loss of income of the parents
during the period of treatment of the petitioner who is aged
about 15 years, food and nourishment, conveyance and
incidental charges.
SCCH 1 18 MVC No.3738/14 C/w. 3739 /14
33. The PW-2 has produced medical bills amounting to
Rs.56,505/- which are marked as Ex.P9/ and these bills are
from the date of the accident till discharge and it includes the
inpatient bill of Vijayashree hospital for Rs.45,000/-. Also PW.2
has produced the pharmaceutical bills for having purchased the
medicines. In the cross examination though it is suggested to
the PW.2 that, the medical bills are created, she has denied the
same. Hence considering that she was inpatient for 10 days
and injuries suffered by her, I accept the medical bills of
Rs.56,505/-. Hence I award Rs.56,505/- under the head
Medical Expenses..
34. In all the minor petitioner is entitled for a total
compensation of Rs.1,81,505/- which is rounded off to
Rs.1,82,000/- as compensation.
35. Issue No.3 ( in M.V.C. No.3739/2014) :
PAIN AND SUFFERINGS:
It is the case of the petitioner that, he has sustained
grievous injuries. To prove his contention has relied upon the
Wound certificate which is marked as Ex.P.2. Also produced
Discharge summary which is marked as Ex.P6. The doctor has
opined that, the injuries are grievous in nature. Also it is
mentioned that, injuries might have sustained on account of the
SCCH 1 19 MVC No.3738/14 C/w. 3739 /14
fall and came in contact with rough substance and blunt object
and also not specifically mentioned in the wound certificate
which injury is grievous in nature, that means all are grievous
in nature. On perusal of the Discharge summary of Vijayashree
hospital it discloses that, petitioner was subjected to surgery of
ORIF with clavicle LCPA and also done wound debridment and
he was an inpatient from 01.05.2014 to 23.05.2014 for a period
of 23 days in the said hospital. In view of petitioner has
suffered the injuries to nasal and frontal region and also cut
lacerated wound and other injuries, I am of the opinion that,
petitioner is entitled for compensation of Rs.60,000/-. Hence, I
award Rs.60,000/- under the Head Pain and Sufferings.
36. LOSS OF FUTURE EARNINGS ON ACCOUNT OF
DISABILITY:
It is the contention of the petitioner that, he has suffered
grievous injuries which lead to permanent disability. Now due
to the accidental injuries he is not able to work. Also he has
spent an amount of Rs.4,00,000/- for his treatment and he has
claimed total an amount of Rs.10,00,000/- as compensation.
On the other hand, the respondents have denied the very nature
of injuries. The petitioner in order to substantiate his case he
has reiterated the averments of the petition and also produced
SCCH 1 20 MVC No.3738/14 C/w. 3739 /14
the Wound certificate as Ex.P2, Discharge Summary as Ex.P6,
Medical bills to the tune of Rs.4,55,938/- as Ex.P7, 43
Prescriptions as Ex.P8.
37. In the cross-examination of PW-1 he admits that, he
has studied upto 1st standard and he has not produced any
documents to show his age and he has not produced any
documents to show that he was working as Mason and also
about his income. He admits that, he was an inpatient for a
period of 23 days at Vijaya Shree hospital. It is suggested that,
medical bills are created for the purpose of this case and the
same was denied. He admits that, in terms of Ex.P.7 final bill
an amount of Rs.3,13,000/- was paid.
a) Disability:
Regarding the disability is concerned the petitioner has
examined the Doctor who has been examined as PW.4 and he
has reiterated the nature of injuries in his affidavit and
assessed the disability as 17% to whole body both in respect of
arm and head. In the cross examination of PW.4 it is elicited
that he is not a treated doctor and he has seen the discharge
summery and latest x-ray. The fracture is mal-united as per
the recent x-ray which is marked as Ex.P17. It is suggested
that, it is only a crack and not the fracture and the same was
SCCH 1 21 MVC No.3738/14 C/w. 3739 /14
denied. The Dr. Girish Gadre has assessed the disability of 8%
in respect of head and face. It is suggested that, the said
disability assessed by the Dr. Girish Gadre has no basis and the
same was denied. It is suggested that, the disability assessed
by him 17% is on higher side and it comes only to the extent of
5% and the same was denied. The PW.4 also says that, the
petitioner can work with the help of others. It has to be noted
that, the doctor is not a treated doctor and hence this Court has
to analyse the evidence of P.W 4 with due care and caution.
The PW.4 has not stated which injury is grievous in nature. For
having taken note of the disability assessed by the Doctor and
also the nature of injury it appears the assessment of disability
to 17% to whole body is little on the higher side since the
petitioner has sustained injury of left clavicle, head injury,
maxillofacial injury and other injuries. He was subjected to
open reduction and internal fixation with plate and screws and
would debirdment and lateral wall elevation of lateral sinus. It
is important to note that, in respect of clavicle, the disability
does not arise. The doctor has assessed the disability to arm as
30%. For having taken note of injury of clavicle and head injury
and maxillofacial injury, I am of the opinion that, this Court can
SCCH 1 22 MVC No.3738/14 C/w. 3739 /14
take note of the disability only to the extent of 10% and note to
the extent of 17%.
b) Income:
The Petitioner has contended that, he was working as a
mason and earning Rs.10,000/- p.m. and in the cross
examination he admits that, he has not produced any
documentary proof with regard to his avocation and income.
Also he categorically admits that, he has studied upto 1st
standard. Hence for having taken note of the date of the
accident i.e. on 01.05.2014 and in the absence of any
documentary proof with regard to his avocation, this court has
taken his income as Rs.7,000/- p.m.
c) Age & multiplier:
The Petitioner in the petition has mentioned the age as 22
years. He has not produced any documentary proof to prove his
date of birth. In the cross examination he categorically admits
that, he has not produced any documents to show his age. In
the absence of any documentary proof this Court has relied
upon the age mentioned in the hospital records which came into
existence immediately after the accident. His age is mentioned
in the Wound certificate which is marked as Ex.P2 issued by
Vijayashree hospital as 21 years and in the Discharge summary
SCCH 1 23 MVC No.3738/14 C/w. 3739 /14
which is marked as Ex.P6 it is mentioned as 26 years. He was
admitted to the hospital on 01.05.2014 at Vijayashree hospital.
Both the documents i.e Wound certificate and Discharge
summary discloses different age of the petitioner as 21 and 26.
In the absence of any documentary proof this Court has to take
higher age mentioned in the documents. Hence I have taken his
age as 26 years and the relevant multiplier applicable between
the age group of 26 to 30 is 17.
Hence the petitioner is entitled for the compensation
under the Head of Loss of Earnings due to disability is
Rs.1,42,800/-(7,000x12x10x17/100).
38. MEDICAL EXPENSES:
The petitioner has produced medical bills to the tune of
Rs.4,55,938/-. In the cross examination it is elicited that, in the
final bill of the hospital the medical amount is mentioned as
Rs.3,13,000/-. Though he admits that, it is mentioned that the
balance amount Rs.33,140/- a total amount of inpatient final
bill is Rs.3,46,140/- and there is seal as paid. On perusal of
these bills, the medicines purchase amount is not mentioned.
The petitioner has also produced medical bills and these bills
are covering his inpatient period and these bills cannot be
excluded. These bills are issued from 01.05.2014 to 23.05.2014
SCCH 1 24 MVC No.3738/14 C/w. 3739 /14
and hence this Court has to accept the bills which are produced
before the Court. It is also important to note that, though the
petitioner has produced advance receipt, they have not included
the same in the total bill. In the final bill it is mentioned that,
the amount has been paid through cash. Hence I have
considered the medical bills of Rs.4,55,938/-. Hence I award
Rs.4,55,938/- under the head medical expenses.
39. TRAVELING, ATTENDANT CHARGES, FOOD AND
NOURISHMENT AND OTHER INCIDENTAL EXPENSES:
During the treatment period the Petitioner must have
spent amount towards traveling, conveyance, food and
nourishment and other incidental expenses. The petitioner was
an inpatient at Vijayashree hospital for a period of 23 days from
01.05.2014 to 23.05.2014. Hence I award Rs.20,000/- under
the head traveling, attendant charges and other incidental
expenses.
40. LOSS OF INCOME DURING THE PERIOD OF
TREATMENT:
It is important to note that, he was an inpatient for a
period of 23 days and he has sustained the fracture of left
clavicle, head injury and maxillofacial injuries. The PW.1 has
not placed any documentary evidence before the court to prove
SCCH 1 25 MVC No.3738/14 C/w. 3739 /14
that presently he is not working. Hence for having taken note of
nature of injuries he has suffered, I am of the opinion that he
could not work for a period 5 months. Hence, I award an
amount of Rs.35,000/-(7,000x5) under the head Loss of
earnings during the period of treatment.
41. LOSS OF AMENITIES IN LIFE:
The petitioner is aged about 26 years and he has suffered
the disability and this court has fixed 10% disability. On
account of his age being 26 years, I am of the opinion that, the
Petitioner is entitled for an amount of Rs.30,000/- on the head
loss of amenities in life since he has to lead his rest of life
with the disability of 10%.
42. FUTURE MEDICAL EXPENSES:
The Petitioner has examined the Doctor as PW.4. The
Doctor in his evidence he says that, the Petitioner require a
surgery for removal of implants and it costs about Rs.30,000/-.
Hence I award an amount of Rs.20,000/- for removal of
implants insitu.
43. The details of compensation, I propose to award are
as under:
SCCH 1 26 MVC No.3738/14 C/w. 3739 /14
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 60,000-00
2. Medical expenses Rs. 4,55,938-00
3. Loss of income during the Rs. 35,000-00
period of inpatient and period of
treatment. (7,000x5)
4. Food and nourishment, Rs. 20,000-00
conveyance , attendant charges
and other incidental expenses
5. Future loss of earning due to Rs. 1,42,800-00
disability
6. Loss of amenities Rs. 30,000-00
7. Future Medical expenses Rs. 20,000-00
Total Rs. 7,63,738-00
In all the Petitioner is entitled for total compensation of
Rs.7,63,738/- which is rounded off to Rs. 7,64,000/-. Out
of the compensation amount, since the petitioner has incurred
Rs.4,55,938/- for medical expenses, I deem it just and proper to
release 75% compensation amount with proportionate interest.
44. Relying upon a judgment of the Apex Court reported in
2013 AIR SCW 5375 (Minu Rout and others Vs. Satya
Pradyumna Mohapatra and others), with regard to interest at
the rate of 9% p.a. on the compensation amount, in para 13 of
the judgment, the Apex Court held that Insurance Company is
also liable to pay interest at the rate of 9% p.a. from the date of
application till the date of payment and also by following the
principles laid down in (2011) 4 SCC 481: (AIR 2012 SC 100)
SCCH 1 27 MVC No.3738/14 C/w. 3739 /14
(Municipal Council of Delhi Vs. Association of Victims of Uphaar
Tragedy). In view of the above judgments with regard to the rate
of interest, and also it is settled law that while awarding interest
on the compensation amount, the Court has to take into
account the rate of interest of the nationalized bank and the
rate of interest at 9% cannot said to be on the higher side.
Accordingly, the petitioner is entitled to interest at the rate of
9% p.a.
45. As regards the liability to be fixed on the
respondents, admittedly the respondent No.1 is the insurer and
respondent No.2 is the owner of bus bearing Reg.No. KA-01-C-
3294, hence, both respondents are jointly and severally liable to
pay compensation to the petitioner. However, primary liability
is fixed on respondent No.1, insurance company to satisfy the
award. Hence, this issue is answered accordingly.
46. Issue No.4: In view of the discussions made above,
I proceed to pass the following:
ORDER
MVC 3738/2014 The petition filed by the minor petitioner is allowed in part against the respondents.
SCCH 1 28 MVC No.3738/14 C/w. 3739 /14 The minor petitioner is entitled for total compensation of Rs.1,82,000/- with interest at the rate of 9% per annum from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company and it is directed to deposit the compensation amount within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, Rs.75,000/- is to be released in the name of guardian of the petitioner. Remaining Rs.1,07,000/- with entire interest shall be kept in F.D. in the name of minor petitioner till she attains majority. Guardian of the minor petitioner shall not create any encumbrances on the F.D. amount.
MVC 3739/2014 The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for total compensation of Rs.7,64,000/-. However, he is entitled for interest at the rate of 9% per annum on Rs.7,44,000/- from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.1 - Insurance Company and it is directed to deposit the compensation amount within two months from the date of this order.
SCCH 1 29 MVC No.3738/14 C/w. 3739 /14 Out of the compensation amount so awarded, 75% with proportionate interest is ordered to be released in favour of the petitioner and the balance amount 25% shall be invested in fixed deposit for a period of 5 years in the name of the petitioner in any of the nationalised bank of the choice of the petitioner. Interest on F.D. is payable on maturity.
Advocate's fee is fixed at Rs.1,000/- in each case. Original of the judgment shall be kept in MVC No.3739/2014 and a copy of the same be retained in MVC No.3738/2014.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open Court on this the 10th day of March 2016) (H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES:
Witnesses examined on behalf of the petitioners:
P.W.1 : Manjunath P.W.2 : Gowramma P.W.3 : Dr.Mahesh P.W.4 : Dr. Nagaraj B.N. PW.5 : Dr.Nagaraj B.N.
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR Ex.P-2 : Wound certificate Ex.P-3 : Mahazar SCCH 1 30 MVC No.3738/14 C/w. 3739 /14 Ex.P-4 : Police intimation Ex.P-5 : Chargesheet Ex.P-6 : Discharge summary Ex.P-7 : Medical bills ( 53 in nos.) for Rs. 4,55,938/- Ex.P-8 : 43 Prescriptions Ex.P-9 : Medical bills (16 in nos.) for Rs. 56,505/- Ex.P-10 : 18 Prescriptions Ex.P-11 : Wound certificate Ex.P-12 : discharge summary Ex.P-13 : Case sheet pertaining to MVC.3739/2014 Ex.P-14 : Case sheet pertaining to MVC.3738/2014 Ex.P-15 : X-ray pertaining to MVC.3738/2014 Ex.P-16 : Clinical note Ex.P-17 : X-ray Ex.P-18 : Clinical note
Witnesses examined on behalf of the respondents :
RW.1: Srikanth V. Documents marked on behalf of the respondents:
Ex.R.1: Notarised copy of D.L. (H.P.SANDESH) Member, Prl., M.A .C.T. Bangalore *S.D.* **********