Bangalore District Court
Divya Thomas vs Sujitha Koshi Vargies on 10 March, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 10th DAY OF MARCH 2016.
MVC.No.4378/2013
****
PETITIONER: Divya Thomas,
D/o Thomas,
Res/at Nellaikunathu House,
Noogady P.O.
Kundhapura, Udupi District.
(By Pleader M.N.Nadini Urs.)
Vs
RESPONDENTS: 1. Sujitha Koshi Vargies,
S/o Koshi Vargies,
No.432, 8th Cross,
28th Main Road, BTM 2nd stage,
Bengaluru-560 076.
(Exparte.)
2. Barathi Aksha General
Insurance Company Ltd.,
1st Floor, FERN/SRY.No.28,
Doddanakundi Village,
Marthalli Post,
K.R.Puram Hobli, Bengaluru-31.
(PolicyFPW/S.09710662/41/02/B/1415B)
(By Pleader Sri.H.N.K.)
2 MVC.4378/13
SCH-16
JUDGMENT
This claim petition is filed by the guardian of the minor petitioner under Section 166 of Motor Vehicles Act, 1988, claiming compensation of Rs.75,00,000/-for the injuries sustained in a road traffic accident happened on 31-03- 2013.
2. The case of the petitioners, as set-out in the petition is as follows:
That on 31-3-2013 at about 2.30a.m., the petitioner was proceeding as a pillion rider in motor cycle bearing No.KA.01/HA.5047 on Hosur road, Madiwala near Ayyappa Temple. The rider of motor cycle was riding at high speed, in a rash and negligent manner and dashed against the center median of the road. The petitioner as well as rider of the motor cycle has sustained grievous injuries.
3. Immediately after the accident, petitioner was shifted to St.John's hospital, Bangalore, wherein, she was admitted in ICU. She took treatment as inpatient and diagnosed that she has sustained severe head injury, 3 MVC.4378/13 SCH-16 with left temporal EDH and temper-parietal SDH with mid brain contusion with DAI, right ulnar fracture , left brachial plexus injury, right C4 pedicle fracture without neuronal foraminal compression. The petitioner under went surgery for left decompression hemicraniectomy with lax duruplasty on 31-3-2013. The petitioner admitted in department of neurosurgery from 31-3-13 to 20-4-13.
4. It is further case of the petitioner that she was shifted to department of orthopedics and she under went surgery of right elbow, right UL cast due to ulna fracture, left UL power- shoulder wrist, rest all limbs, inferior and infero-lateral gaze. Left 3rd nerve paresisi (+) for which, she was operated. She had taken treatment from 20-4-13 to 30-4-13.
5. It is further case of the petitioner that she was admitted for further treatment to department of neurosurgery from 31-5-13 to 26-5-13. she was suffering severe head injury with temporal EDH and SDH, S/P, hemicraniectomy right ulna fracture, left brachial plexus injury and she is still under treatment in St.John's hospital.
6. It is further case of the petitioner that prior to the accident, she was hale and healthy and she was studying in 4 MVC.4378/13 SCH-16 2nd semester hotel management course at Christ College, Bangalore. Due to the said accident, she was not able to continue college and she was admitted to 2nd year by paying Rs.80,000/-. Due to the accidental injuries, she is disabled and she has to forgo her studies. Prior to the accident, she had secured seat in a prestigious college, enrolled for graduation in hotel management. The dreams of her getting a good job in hospitality industry, on completion of studies have been shattered. Hence, she is entitled for compensation for loss of education.
7. It is stated that that the Madiwala Traffic police have registered a case against the driver of car in Cr.No.92/13 for the offence punishable under Sec.279 and 337 of IPC. The respondents, being owner and insurer of the offending vehicle, are jointly and severally liable to pay the compensation to the petitioner. On all these grounds, minor petitioner prayed for awarding the compensation of Rs.75,00,000/- to her.
8. In response to the notice, respondent No.2 appeared before this Tribunal through their counsel. Whereas, the 5 MVC.4378/13 SCH-16 respondent No.1 is placed exparte as he did not appear before this Tribunal inspite of service of notice.
The respondent No.2 filed the written statement by admitting that it had issued policy in respect of motor cycle bearing No.KA.01/HA.5047 and it was in force as on the date of accident. But their liability is subject to terms and conditions of the policy. It is contended that the rider of motor cycle was not having valid and effective DL as on the date of accident. There is violation of terms and conditions of the policy. The respondent No.1 immediately after the accident has not intimated about the accident and the police have not supplied the relevant documents and hence, there is violation of Sec.134( c) and 158(6) of MV act. The respondent No.2 denied the involvement of offending vehicle in the accident. The respondent No.2 denied the age, injuries sustained by the petitioner, involvement of offending vehicle in the accident and medical expenses incurred by her. The respondent No.2 further contended that immediately after the accident, no police complaint was lodged before the police and there is inordinate delay in lodging the complaint. The respondent No.2 further contended that no case was filed 6 MVC.4378/13 SCH-16 against the rider of motor cycle by the jurisdictional police. On all these grounds, respondent No.2 prayed for dismissal of the petition with costs.
9. On the basis of the above pleadings, my predecessor in office has framed the following:
ISSUES
1. Whether petitioner proves she sustained injuries in road traffic accident that occurred on 31-03-2013 at about 02.30 a.m., Hosur main road, Madivala near Ayyappa temple, Bengaluru, while the petitioner was traveling in pillion rider with her friend in two wheeler bearing Reg.No. KA-01-HA-5047, due to rash and negligent act rider of the above vehicle, has resulted in an accident? ?
2. Whether petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
10. In order to prove her case, the petitioner is examined as P.W.1 and got marked documents at Ex.P.1 to P.8 and Ex.P.13. Dr.S.Ramachandra, orthopedic Surgeon at Bowring and Lady curzon hospital is examined as PW-2 and got marked Ex.P.9 and P.10. Dr.Vineesh K.Varghese is examined as PW-3 and he got marked documents at Ex.P.11 and P.12. The Medical record keeper is examined as PW-4 7 MVC.4378/13 SCH-16 and he got marked documents at Ex.P.14. The respondent No.2 examined its Legal Manager as RW-1 and got marked Ex.R.1.
11. I have heard the arguments and perused materials on record. The learned counsel for the petitioner has filed the written notes of arguments.
12. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the followings:
Issue No.1: IN THE AFFIRMATIVE Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER.
REASONS ISSUE NO.1:
13. The petitioner has come up with the case that due to the rash and negligent riding of motor cycle bearing No.KA.01/HA.5047, she sustained severe head injury, with left temporal EDH and temper-parietal SDH with mid brain contusion with DAI, right ulnar fracture , left brachial plexus injury, right C4 pedicle fracture without neuronal foraminal compression. Because of which, she has to discontinue her 8 MVC.4378/13 SCH-16 studies, incurred huge medical expenses and she is permanently disabled and hence, the respondents are jointly and severally liable to pay compensation to her.
14. The petitioner has filed her affidavit by reiterating the petition averments in her examination-in-chief as PW-1. PW-1 has stated that due to rash and negligent riding of motor cycle bearing No.KA.01/HA.5047 and dashing against road center median and sustaining of grievous injuries by her in the said accident. She has also stated she took treatment at St.John's hospital for 5times by admitting as inpatient. During the said period, she under went operation of head injury, ulna and rook other treatment. She has stated that the accident was due to the negligence on the part of the rider of motor cycle and because of which, she has to incur huge medical expenses.
15. The petitioner also examined the doctor Sri.S.Ramachandra, orthopedic Surgeon at Bowring and Lady curzon hospital as PW-2. Dr.Veineesh K.Varghese is examined as PW-3.
16. Apart from his oral evidence, PW-1 has also produced the copy of FIR with complaint at Ex.P.1 spot 9 MVC.4378/13 SCH-16 mahazar with sketch at Ex.P.2, IMV report at Ex.P.3, wound certificate at Ex.P.4, charge sheet at Ex.P.5, 12 discharge summaries at Ex.P.6, 273 medical bills at Ex.P.7, conveyance bills as per Ex.P.8.
17. During the course of cross-examination, it has been elicited that at the time of accident, the petitioner and her friend sujith were moving in the 2wheeler and it was about 2.30a.m. It is further elicited from the mouth of PW-1 that after attending the church on that night, they moved to have Tiffin. It is elicited from the mouth of PW-1 that at the time, Sujith was in their apartment, he had consumed alcohol. It is further culled out from the mouth of PW-1 that during the party, the dinner would be delayed for the alcohol and it is part of the party. It is suggested to PW-1 at that time, due to consuming alcohol and doing wheeling and dragging accident occurred and the said suggestion was denied. Further it is suggested that due to the fault of the petitioner and rider of motor cycle, this accident took place and the said suggestion was denied by PW-1.
18. The learned counsel for the respondent No.2 with the above said cross-examination has argued that PW-1 has 10 MVC.4378/13 SCH-16 admitted that on the date of alleged accident, PW-1 as well as rider of motor cycle consumed alcohol and the accident took place due to the negligence on the part of the rider of motor cycle. He also argued that the tribunal constituted for awarding compensation to the actual victims of the accident and in this case due to their own fault, the petitioner sustained injuries, hence, he prayed to dismiss the petition.
19. Per contra, the learned counsel for the petitioner has argued that the petitioner was not in sound state of mind after the accident. She has categorically stated that on the date of accident, they have consumed alcohol. The learned counsel for the petitioner has drawn the attention of this tribunal to the denial suggestions that as on the date of accident, the petitioner as well as rider of motor cycle has consumed alcohol, because of which, the accident took place.
20. On careful perusal of entire cross-examination of PW-1, it is clear that though PW-1 admitted that as on the date of accident, rider of motor cycle consumed alcohol but it is not culled out from the mouth of PW-1 that at the time of accident, motor cyclist was not consumed alcohol. Apart from that, the respondents have not placed any materials 11 MVC.4378/13 SCH-16 before this Tribunal to show that the rider of motor cycle on the date of accident had consumed alcohol. In MLC extract at Ex.P.14, there is no reference as to the consuming of alcohol by the rider of motor cycle. Hence, merely on the basis of stray admissions of PW-1, in the absence of any materials, this tribunal cannot come to the conclusion that the rider of motor cycle as on the date of accident had consumed alcohol.
21. Apart from the said oral evidence, the petitioner has produced the copy of FIR with complaint at Ex.P.1. On perusal of complaint, it is clear that the relative of the petitioner had lodged the complaint on 7-4-13 stating that on 31-3-2013 between 2.30 to 3a.m., the petitioner and her friend-Sujith were returning to their home after completing the Easter-prayer. At that time, in order to avoid the accident when the pedestrian on road, the rider of motor cycle hit to the road divider, because of which, this accident took place. In the complaint, it is stated that the petitioner was unconscious and she was not in a position to say as to the manner of accident. Hence, there was delay in lodging the complaint.
12 MVC.4378/13
SCH-16
22. It is to be noted that the accident took place on 31- 3-2013. The complaint was lodged on 7-4-2013. There was delay of 7days in lodging the complaint. It is to be noted that immediately after the accident, MLC was registered as could be seen from Ex.P.14. This document clearly reveals that immediately after the accident, at about 4 a.m. MLC was registered by the St.John's hospital. Hence, even though, there is delay of 7days in lodging the complaint, but, as per Ex.P.14-MLC was registered immediately after the accident. Hence, no much waitage can be given to the fact that there is delay of 7days in lodging the complaint. Though, PW-1 was cross-examined at length, nothing worthwhile has been elicited from her mouth to prove that the petitioner and rider of motor cycle were in drunken state of mind at the time of accident. It is to be noted that after the investigation, the jurisdictional police have filed charge sheet against the rider of motor cycle as could be seen from Ex.P.5. The IMV report at Ex.P.3 reveals that the 2wheler was damaged in the accident. The sketch reveals that the motor cyclist crossed the maiden of the road, because of which, this accident took place.
13 MVC.4378/13
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23. The wound certificate, which is marked as per Ex.4 reveals that the petitioner has sustained severe head injuries and other fractures. Immediately after the accident, she was taken to St.John's hospital, Bangalore, wherein, she was inpatient from 31-3-13 to 20-4-13. During the said period, it was diagnosed that the petitioner has sustained left temporal EDH and temper- parietal SDH with cerebral edema and mass effect. Left squamous temporal and parietal bone fracture. Further, it is revealed that there is mid brain contusion. C7 right pedicle fracture without neural foraminal compression. X-ray revealed that the petitioner has sustained right elbow shows olecranon fracture-ENMG:Left UL-Severe left musculocutaneous and axillary motor axonal neuropathy, left ulnar and radial. Further, the patient was shifted to ICU, for treatment.
24. The discharge summary dated 20-4-13 reveals that the petitioner was operated EDH by NESU and readmitted for operation of elbow fracture. On the said date, surgery was done and discharged on 30-4-2013 with an advice to take follow-up-treatment.
14 MVC.4378/13
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25. The discharge summary of 13-5-2013 reveals that the petitioner has under gone surgery for bone graft with mini plates and mini-screws on 15-5-2013. The petitioner discharged on 26-5-2013.
26. Further discharge summary of the Kasturba hospital, Manipal dated 26-8-2013 reveals that the petitioner has sustained left post traumatic post ganglion brachial plexus palsy, right olecranon fracture with T3W, right C4 pedicle fracture without neural compression and she was operated left hemicranectomy. Further the discharge summary reveals that the petitioner under gone surgery and discharged on 7-9-2013.
27. Another discharge summary of Kasturba hospital reveals that the petitioner undergone surgery on 4-11-2013 for right olecranon fracture with tension ban wiring for implant removal and discharged on 15-11-13.
28. The petitioner also produced the discharge summary of Kasturba hospital dtd. 16-12-2013 and it reflects that the petitioner undergone surgery of right olecranon process fracture (implant removal) C/O SAH and discharged on 19-12-2013. Further discharge summary dated 13-1- 15 MVC.4378/13 SCH-16 2014 reveals that the petitioner was operated for left brachial plexus palsy on 28-8-13. She was readmitted on 6-11-13 for tension band wiring removal +K wire removal and discharged on 28-1-2014.
29. The discharge summary of Sparsh hospital reveals that the petitioner admitted to the said hospital on 24-4-2014 reveals that the petitioner has sustained malunited fracture of the coronoid process of ulna is noted. The doctors opined that a long thick bony structure is seen arising from the posterolateral margin of the distal humeral shaft and extending inferiorly to the lateral margin of the radial head. Further the discharge summary reveals that the petitioner has sustained Mild subluxation of the radial head is noted. The certificate issued by the Kasturba hospital reveals that the petitioner was suffering from post traumatic stiffness of right elbow (with mal-united fracture dislocation of elbow and implant insitu). She has also sustained left side brachial plexus injury , for which she under went surgery and reconstruction in August 2013.
30. The discharge summary of Sparsh hospital dated 17-9-2014 reveals that the petitioner was admitted to the said 16 MVC.4378/13 SCH-16 hospital for removal of implants +Anterior and posterior capsular release of right elbow was done on 18-9-14 and discharged with an advice for follow-up-treatment on 19-9- 2014.
31. The discharge summary of St.John's hospital dated 22-9-14 reveals that the petitioner has sustained Traumatic bran injury sequelae (Left temporal EDH, left temporo-parietal SCH and mid brain contusion and she under went surgery.
32. The petitioner examined the doctors as PW-2 and Pw-3, who have treated her. The evidence of PW-2 reveals that due to the accident, the petitioner has sustained left temporal EDH and temper-parietal SDH with mild brain contusion with DAI, right ulnar fracture , left brachial plexus injury and right C4 pedicle fracture without neuronal foraminal compression. She was inpatient for 10times.
33. The evidence of PW-3 reveals that the petitioner due to the accident, she has sustained cut laceration on the right side of forehead measuring 3x3x2cm, laceration of left ear cartilage, deep penetrating injury of left cheek with underlining bone exposed, deformity and swelling of right elbow. Further x-ray reveals that the petitioner has sustained 17 MVC.4378/13 SCH-16 left temporal EDH with temporo-parietal SDH with cerebral edema and mass effect. There was a contusion in the mid bran and fractures of left side temporal and parietal bones. PW-2 further stated that the petitioner sustained right elbow olecranon fracture and she under went surgery for the said fractures.
34. PW-3 has stated that due to the accidental injuries, the petitioner's memory disturbance, intermittent aggressive behavior-requiring psychiatry help, sever proximal muscle weakness of left upper limb due to left brachial plexus injury. Severe restriction of her right elbow monuments. The respondent No.1 being owner of offending vehicle has not challenged the charge sheet filed against him. Hence, this tribunal can safely come to the conclusion that the accident in question was occurred due to the rash and negligent riding of motor cycle by its rider and because of the said accident, the petitioner sustained injuries as mentioned in the wound certificate. Accordingly, I answer Issue No.1 in the Affirmative ISSUE No.2:
18 MVC.4378/13
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35. This issue is in respect of quantum of compensation to be awarded to the petitioner and the liability to pay the same.
The petitioner has produced the wound certificate at Ex.P.4 and 12 discharge summaries of St.John's hospital, Kasturba hospital, Manipal and Sparsh hospital, Bangalore . These discharge summaries reveal that the petitioner had sustained severe head injury with left temporal EDH and temper-parietal SDH with mild brain contusion with DAI, right ulnar fracture , left brachial plexus injury and right C4 pedicle fracture without neuronal foraminal compression. The petitioner under went surgery for left decompression hemicraniectomy with lax chroplasty on 31-3-2013. Further discharge summary of St.John's hospital reveals that the petitioner under went surgery on 22-4-13 TBW for olecranon fracture and lateral collateral ligament repair. The discharge summary also reveals that the petitioner under went another surgery on 15-5-13 for left temporo parietal cranioplasty using autologous bone graft fixed with mini-plates and mini- screws.
19 MVC.4378/13
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36. The discharge summary dated 26-8-13 of Kasturba hospital reveals that the petitioner under went surgery for left sided brachial plexus palsy, right olecranon fracture with TBW in situ, right C4 pedicle fracture without neural foramina compression on 31-3-2013. These discharge summaries also reveals that the petitioner has sustained severe head injury and also fracture of ulna. She has taken treatment at Kasturba hospital, Sparsh hospital and also St.John's hospital.
37. She further admitted at St.John's hospital, Bangalore on 13-5-2013, under went operation Traumatic bran injury sequelae (Left temporal EDH, left temporo-parietal SCH and mid brain contusion and she under went surgery and discharged on 26-5-2013.
38. Further the Kasturba hospital, Manipal discharge summary dated 26-8-2013 reveals that the petitioner got admitted to the said hospital and took conservative treatment and discharged on 7-9-2013. Again, on 8-10-13, she was treated in the said hospital conservatively and discharged on 12-10-13. Another discharge summary of Kasturba hospital dated 16-12-13 reveals that the petitioner 20 MVC.4378/13 SCH-16 undergone surgery of right olecranon process fracture (implant removal) C/O SAH and discharged on 19-12-2013. Further discharge summary dated 13-1-2014 reveals that the petitioner was operated for left brachial plexus palsy on 28-8-
13. She was readmitted on 6-11-13 for tension band wiring removal +K wire removal and discharged on 28-1-2014.
39. The discharge summary of Sparsh hospital reveals that the petitioner admitted to the said hospital on 24-4-2014 reveals that the petitioner has sustained malunited fracture of the coronoid process of ulna is noted. The doctors opined that a long thick bony structure is seen arising from the posterolateral margin of the distal humeral shaft and extending inferiorly to the lateral margin of the radial head. Further the discharge summary reveals that the petitioner has sustained Mild subluxation of the radial head is noted. The certificate issued by the Kasturba hospital reveals that the petitioner was suffering from post traumatic stiffness of right elbow (with mal-united fracture dislocation of elbow and implant insitu). She has also sustained left side brachial plexus injury, for which she under went surgery and reconstruction in August 2013.
21 MVC.4378/13
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40. The discharge summary of Sparsh hospital dated 17-9-2014 reveals that the petitioner was admitted to the said hospital for removal of implants +Anterior and posterior capsular release of right elbow was done on 18-9-14 and discharged with an advice for follow-up-treatment on 19-9- 2014.
41. The discharge summary of St.John's hospital dated 22-9-14 reveals that the petitioner has sustained Traumatic bran injury sequelae (Left temporal EDH, left temporo-parietal SCH and mid brain contusion and she under went surgery.
42. The petitioner examined the doctors as PW-2 and Pw-3, who have treated her. The evidence of PW-2 reveals that due to the accident, the petitioner has sustained left temporal EDH and temper-parietal SDH with mild brain contusion with DAI, right ulnar fracture , left brachial plexus injury and right C4 pedicle fracture without neuronal foraminal compression.
43. The evidence of PW-3 reveals that the petitioner due to the accident, she has sustained cut laceration on the right side of forehead measuring 3x3x2cm, laceration of left ear cartilage, deep penetrating injury of left cheek with 22 MVC.4378/13 SCH-16 underlining bone exposed, deformity and swelling of right elbow. Further x-ray reveals that the petitioner has sustained left temporal EDH with temporo-parietal SDH with cerebral edema and mass effect. There was a contusion in the mid bran and fractures of left side temporal and parietlal bones. PW-2 further stated that the petitioner sustained right elbow olecranon fracture and she under went surgery for the said fractures.
44. The petitioner examined the doctors as PW-2 and Pw-3, who have treated her. The evidence of PW-2 reveals that due to the accident, the petitioner has sustained left temporal EDH and temper-parietal SDH with mild brain contusion with DAI, right ulnar fracture , left brachial plexus injury and right C4 pedicle fracture without neuronal foraminal compression. She was inpatient for 10times. Having regard to the above said injuries sustained by the petitioner, this tribunal is of the opinion that the petitioner is entitled for compensation of Rs.1,50,000/- under the head pain and sufferings.
45. As the petitioner had been in the St.John's hospital, Kasturba hospital and also at Sparsh hospital as an 23 MVC.4378/13 SCH-16 inpatient for a period of 116days. The petitioner also produced the conveyance bills. The petitioner might have spent considerable amount for attendant charges, extra nutritious food and conveyance charges. She might have spent huge amount for follow-up-treatment. Hence, I feel it is just and proper to award a sum of Rs.50,000/- to the petitioner towards attendant charges, extra nutritious food and conveyance charges.
46. The petitioner has produced the medical bills as per Ex.P.7 to the tune of Rs.14,42,537.20/- and prescriptions at Ex.P.8. I have meticulously gone through medical bills as well as prescriptions. It is not in dispute that immediately after the accident, the petitioner was admitted to the St.John's hospital, Bangalore and she took treatment at various hospitals. The petitioner incurred total medical expenses to the tune of Rs.14,42,537.20/-. Hence, I feel it is just and proper to award a sum of Rs.14,42,537.20 to the petitioner towards medical expenses and the same is rounded to Rs.14,43,000 /-.
47. The doctors who treated the petitioner was examined as PW-2 and PW-3.PWs 2 and 3 have stated that 24 MVC.4378/13 SCH-16 because of the above said injuries sustained by the petitioner during RTA, she has sustained whole body disability 18.4% and 35% to her left brachial plexus injury. In the cross- examination, PW-3 has admitted that the fractures are united but there are abnormality resulting from fractures. PW-2 admitted that the scar alone will not give raise to the disability, it is only a cosmetic disfiguration. PW-2 admitted that there is no further treatment advised for surgeries. PW-3 in his cross-examination has stated that the mid brain injury, by passing of time it is healing day by day. After surgery on cerebral edema will come down and patient will be relived by the edema over a period of one week or 10days. It is admitted by PW-3 that the cerebral edema and mid contusion of brain are now healed. Other than these two injuries, the patient had contusion in left temporal lobo and there is diffusal brain injury, which has contributed to neurological decoration. PW-3 has stated that the contusion in temporal lobe is now improved and there is no scope for reconstruction from the injury. There is no advanced treatment for diffused brain injury. He further admitted that there is no procedure to deal with diffused brain injury, they will manage the 25 MVC.4378/13 SCH-16 condition only by medication and continues monitoring. The patient can speak but there is no intended speech.
48. PW-3 stated that the Neuro behavioral disability is at 15%. PW-3 admitted that the cognitive disability should be 1/3rd out of 50%. PW-3 assessed the mental function disability at 35% to the brachial plexus injury. PW-3 stated that the recovery will not possible after gap of time of one year from the time of injury. Hence, from the above said evidence of PWs 2&3 reveals that the petitioner has sustained contusion in left mid brain and fractures of left sided temporal and partial bones. PW-2 in his cross-examination has admitted that the fractures are united. Hence, the disability assessed at 18.4% to the whole body is on higher side. Having regard to the nature of injuries sustained by the petitioner, this tribunal takes the whole body disability with respect 12% to the whole body.
49. The evidence of PW-3 reveals that the cerebral edema contributed to neurological decoration. Therefore, I take the functional disability at 30%. In total, the disability on the basis of evidence of PWs 2&3 is taken at 42%. Hence, by considering the age of petitioner, she is a student, she was 26 MVC.4378/13 SCH-16 inpatient at various hospitals for a period of 116days and the difficulties she had, the whole body disability of the petitioner may not be more than 42%. Therefore, I determine the whole body disability of the petitioner as 42%.
50. With respect to the future loss of earnings, the petitioner was studying hotel management course. If she has completed her education, she would have got good job and good salary. Hence, considering the above facts, notional income of the petitioner is taken as Rs.10,000/-p.m. Due to 42% disability, annual loss of income would be Rs.4200/-. Since the petitioner was aged 21 years, at the time of accident, multiplier applicable for her age is 18. (10,000x42%=4200/-) If Rs.4200/- is multiplied by 18, (4200x12x18)=it would be Rs.9,07,400/-. Hence, I hold that the petitioner is entitled for the compensation of Rs.9,07,400/- under the head loss of future income due to permanent disability.
51. As per the petition averments as well evidence of petitioner, the petitioner was studying ion 2nd semester in hotel management course. Due to the accidental injuries, she has discontinued her education and she was a bright student. 27 MVC.4378/13
SCH-16 The petitioner has not produced the any documents to show that has pursued the hotel management course. But in the cross-examination, she has stated when the accident took place, at that time, she was studying 2nd semester in hotel management course. There are no documents to show that due to the accident, the petitioner has discontinued her education. Pw-1 in her cross-examination has stated that if there is any improvement in her health condition, she will continue the course. But the fact remains that the petitioner has not produced any documents to show that she discontinued her education. Even though, there are no documents to show that the petitioner pursued the hotel management course. But the respondents have not disputed that the petitioner was not pursuing the hotel management course. Though the petitioner has stated that she was doing 2nd semester hotel management in the year 2013, but she has not produced the marks card of 1st semester to show that she was bright student. However, it cannot be lost sight of the fact that the petitioner was studying in hotel management course, at the time of accident. If she had continued her studies, she would have bright prospectus and got good job opportunity. 28 MVC.4378/13
SCH-16 But in this case, because of accidental injuries, the petitioner has discontinued her studies. Hence, looking to the fact that the petitioner joined hotel management course at the time of accident and if she had continued the hotel management course and passed out in the said course, she would have got bright future. Therefore, looking to the facts of the case and in the absence of any materials to show that the petitioner discontinued her education, this tribunal takes notional income of the petitioner as Rs.10,000/-p.m. The discharge summaries of various hospitals discloses that the petitioner sustained grievous nature of injuries and it may requires more than 6 months to heal from the said injuries. Therefore, I feel it is just and proper to award a sum of Rs.75,000/- to the petitioner towards loss of income during the period of taking treatment.
52. The petitioner was aged about 21years as on the date of accident and she has sustained severe head injury, with left temporal EDH and temper-parietal SDH with mid brain contusion with DAI, right ulnar fracture , left brachial plexus injury, right C4 pedicle fracture without neuronal foraminal compression and the above said injuries are 29 MVC.4378/13 SCH-16 grievous in nature. She might have suffered lot of pain, lost her enjoyment as a student during the period of treatment, loss of amenities and comforts in life. The petitioner has sustained diffused brain injury and it is not completely curable and there is no treatment for this condition. It has to be managed through continuous monitoring and medication. She has to suffer from disappointment, frustration, mental stress in life Therefore, considering the age, nature of injuries sustained by the petitioner and percentage of disability, this tribunal is of the opinion, that the petitioner is entitled for the compensation of Rs.1,00,000/- towards loss of amenities and future happiness.
53. The doctors who examined and assessed the disability of petitioner have stated that the fractures are united but there are abnormalities resulting in fractures. The screws and plates are in situ. PWs 2& 3 have not stated that the petitioner has to under go surgeries for removal of implants, which are in situ. This tribunal awarded Rs.1,00,000/- for removal of implants and for future medication and surgery considering the nature of injuries sustained by the petitioner in the RTA. Due to the accidental 30 MVC.4378/13 SCH-16 injuries she cannot lift, hold things, write properly and cannot recollect events. It is not in dispute as per opinion of the doctor regarding conducting of one more surgery of the petitioner. Therefore, petitioner requires surgery for removal of implants. Hence, it is just and proper to hold that the petitioner is entitled for compensation of Rs.1,00,000/- towards future medical expenses including surgery charges.
54.The petitioner has sustained severe head injury, with left temporal EDH and temper-parietal SDH with mid brain contusion with DAI, right ulnar fracture , left brachial plexus injury, right C4 pedicle fracture without neuronal foraminal compression. The petitioner was a student studying in 2nd semester hotel management course. The petitioner has sustained diffused brain injury and it is not completely curable and there is no treatment for this condition. It has to be managed through continuous monitoring and medication. Due to the above said condition, the petitioner lost her marriage prospectus, social life are badly affected. She has to suffer from disappointment, frustration, mental stress in life. Therefore, this tribunal considering the above said facts, awarded compensation of 31 MVC.4378/13 SCH-16 Rs.1,00,000/- towards loss of marriage prospects. There are no grounds to award compensation under any other heads. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs. 1,50,000/- 2 Attendant charges, nutritious Rs. 50,000/-
expenses & transportation charges 3 Medical expenses Rs. 14,43,000/-
4 Loss of income during the Rs. 75,000/-
period of taking treatment due to disability 5 Loss of income due to Rs. 9,07,400/-
permanent physical disability 6 Loss of income future Rs. 1,00,000/-
amenities and happiness 7 Future medical treatment Rs. 1,00,000/- 8 Loss of Marriage prospects Rs. 1,00,000/-
Total Rs. 29,25,400/-
In total, the petitioner is entitled for the compensation of Rs.29,25,400/-.
Interest:
55. 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. 32 MVC.4378/13 SCH-16 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) (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 petitioners are entitled to interest at the rate of 9% p.a. Liability:
56. While answering issue No.1, it was come to the conclusion, that the accident was occurred on account of rash and negligent riding of motor cycle bearing No.KA.01/HA.5047 by the rider of respondent No.1. The respondent No.1 insured the offending motor cycle with the respondent No.2 and the policy was in force as on the date of accident. The respondent No.1 being the owner and respondent No.2 being insurer of the offending vehicle are jointly and severally liable to pay compensation to petitioners 33 MVC.4378/13 SCH-16 with interest at 9% p.a. However, primary liability is fixed on respondent No.2. Accordingly, issue No.2 is answered partly in the affirmative.
ISSUE No.3:-
57. In view of my above findings, the petition deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the petitioner is allowed in part.
The petitioner is entitled for compensation of Rs. 29,25,400/- (Rs.Twenty nine lakhs twenty five thousand four hundred only)- 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.2 -Insurance Company and is directed to pay the compensation amount within two months from the date of this order.
As the petitioner has incurred medical expenses to the tune of Rs.14,43,000/-. Out of the said compensation amount awarded, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioner as FD in any nationalized bank for a period of three years (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate interest shall be 34 MVC.4378/13 SCH-16 released to the petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 10th day of March 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE.
ANNEXURE Witnesses examined on behalf of petitioners:
PW-1 : Divya Thomas PW-2 : Dr.S.Ramachandra PW-3 : Dr.Vineesh K PW-4 : Mohan C
Documents marked on behalf of petitioners:
Ex.P.1 : Copy of FIR with complaint
Ex.P.2 : Copy of spot mahazar with sketch
Ex.P.3 : Copy of motor vehicle accident report
Ex.P.4 : Copy of wound certificate
Ex.P.5 : Copy of charge sheet
Ex.P.6 : 12 discharge summaries
Ex.P.7 : Total 273 medical bills Rs.14,42,537/-
Ex.P.8 : Further medical bills along with
conveyance
Ex.P.9 : OPD Card
Ex.P.10 : X-ray
Ex.P.11 : Entire case record with MLC and copy of
wound certificate
Ex.P.12 : OPD records
Ex.P.13 : Disability certificate
Ex.P.14 : MLC Extract (2 in nos)
35 MVC.4378/13
SCH-16
Witnesses examined on behalf of respondents:
RW-1 : Sandeep S.R. Documents marked on behalf of the respondents:
Ex.R.1 : Policy Copy
(SATISH.J.BALI)
MEMBER:MACT, BANGALORE.