Bangalore District Court
In Mvc : Master Rakesha vs Sri.Narayanaswamy on 16 April, 2022
KABC020255902019
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE (SCCH-9)
Present: Umesha.H.K, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 16th day of April, 2022
MVC.No.6155/19 C/w 6156/2019
PETITIONER in MVC : Master Rakesha
6155/2019: S/o V.Prakash
@Venkateshappa Muniyappa,
Aged about 15 years,
Minor
Represented by his
Father/natural guardian/
Next friend
Sri. V. Prakash
S/o Venkateshappa,
Aged about years,
Both are residing at
Chikkakunthuru Village,
Araleri Post,
Malur Taluk,
Kolar District.
(By Sri.T.V.Ramesh- Advocate)
PETITIONER in MVC : Sri.V.Diwakar,
6156/2019: S/o.Venkateshappa,
Aged about 35 yers,
R/o.Chikkakunthuru Village,
Araleri Post,
Malur Taluk,
Kolar District.
-V/s-
SCCH-9 2 MVC:6155 C/w 6156/19
RESPONDENTS 1. Sri.Narayanaswamy
IN BOTH THE CASES S/o Ramachandrappa,
Major,
R/o Ullerahalli Village,
Tekal Hobli,
Malur Taluk,
Kolar District.
(Exparte)
2. The Royal Sundaram Alliance
Insurance Company Ltd.,
Branch Office,
Raghavendra Plaza,
1st Floor, 1st Cross,
Hosur Main Road,
Wilson Garden,
Bangalroe-27.
(By Sri.Ravi S Samprathi- Advocate)
COMMON JUDGMENT
Since, these two petitions are arising out of same
accident, they are clubbed together, as per the order dated
13.04.2022 and evidence was recorded in MVC 6155/2019. In
order to avoid conflict decisions and for the sake of
convenience common judgment is passed.
2. These are the petitions filed by the petitioners under
Sec.166 of the Motor Vehicles Act, 1988, claiming
compensation of Rs.40,00,000/- for the injuries sustained by
the minor petitioner in MVC 6155/2019 and Rs.5,00,000/- for
the injuries sustained by petitioner in MVC 6156/2019 in RTA.
SCCH-9 3 MVC:6155 C/w 6156/19
3. The brief facts of the case of petitioners in
nutshell are as under:
The petitioners in both the cases on 21.07.2019 at about
5.30. P.M. were proceeding towards their village
Chikkakunthuru from Malur town as a rider and pillion rider on
a motor cycle bearing Reg. No. KA-04-HC- 5124, at that time
near Sonnahalli Gate, Malur Taluk, Kolar district one Petrol
Tanker Lorry, bearing Reg.No. KA-08-9406 came from opposite
direction at high speed in a rash and negligent manner and
dashed against the motor cycle. Due to impact both the
petitioners fell down from motor cycle and sustained
grievous injures.
4. The petitioner in MVC 6155/2019 immediately after
the accident, was shifted to Govt. Hospital, Malur. Thereafter,
he was shifted to R.L Jalappa Hospital, Kolar for better
treatment, wherein he has taken treatment as inpatient for the
injuries i.e., comminuted mid shaft fracture of left femur, open
type I proximal 1/3rd shaft fracture of both bones of left leg,
closed distal 1/3rd fracture of both bone of left
forearm,anterorlisthesis of C2 over C3, left brachial plexus
injury, In the hospital CT scan and MRI scan was done.
Thereafter, open reduction and internal fixation with LCP
SCCH-9 4 MVC:6155 C/w 6156/19
plating for left femur, closed eduction and internal fixation with
TENS nailing for left tibia., open reduction with internal fixation
DCP plating for left radius and ulnar, C2/C3 anterior
discectomy with fusion of C2-C3 cervical vertebra. He was
taken treatment as inpatient from 21.07.2019 to 28.08.2019
and he lost sensation in left upper limb and taken higher
treatment at Hosmat Hospital on 19.12.2019. on examination
doctor advised to take and prescribed teristart injections and
taking treatment as outpatient till today.
5. Further, it is stated that the petitioner has spent
Rs.5,00,000/- towards medicine, conveyance, food,
nourishment, attendant and other incidental charges. Prior to
accident, petitioner was hale and healthy and was aged 14
years and was studying 8th Standard. Due to the accidental
injuries and permanent 100% disability caused claimant could
not attend the class for a period of three months, which
effected his educational career and also on his bright future.
6. The petitioner in MVC 6156/2019 immediately after
the accident, was shifted to Govt. Hospital Malur. Thereafter,
he was shifted to R.L Jalappa Hospital, Kolar for better
treatment, Ct scan was taken and on examination it is noticed,
- right occipital region subarchnoid hemorrhage are noticed
SCCH-9 5 MVC:6155 C/w 6156/19
and treated conservatively. The petitioner took treatment as
an inpatient from 21.07.2019 29.07.2019 and discharged with
an advise to take follow up treatment. Prior to accident
petitioner was working as driver and earning Rs.20,000/- p.m.
Due to neurological deficit he could work prior to the accident
and lost his earnings. He spent Rs.50,000/- towards treatment,
medicine, conveyance nourishment etc. The Malur Police have
registered a criminal case against the driver of the offending
vehicle, in Crime No.0174/2019 for the offence punishable
U/Sec. 279 and 337 of IPC. The respondent no.1 is the RC
Owner of the offending Petrol Tanker Lorry bearing Reg.No.KA-
08-9406 and respondent no.2 is the insurance company.
Hence, both the respondents are jointly and severally liable to
pay the compensation. Hence, the petition.
7. After service of summons, the respondent no.1
remained absent and was placed exparte. The respondent no.2
appeared through its counsel and filed its written statement in
both the cases.
8. The respondent no.2 in its written statement denied
all the averments made in the petition. It is contended that as
per Sec.134 (c) of M.V.Act it is duty of the insured to furnish
the particulars of policy, date, time and place of accident,
SCCH-9 6 MVC:6155 C/w 6156/19
particulars of the injured and the name of the driver and
particulars of driving license. But, the respondent no.1 has
failed to complied with the statutory demand. Further
contended as per Sec.158 (6) of M.V.Act, it is the mandatory
duty of the concerned Police Station to forward all the relevant
documents to the concerned insurer within 30 days from the
date of information, but they have failed to do so. The
respondent no.1 knowingly and willfully handed over the
possession of the vehicle to the said driver. Further contended
that the tanker lorry in question didnot possessed the valid
permit and FC as on the date of accident and thereby violated
the provisions of M.V.Act and has committed the breach of
terms and conditions of the policy. Further, admitted the
issuance of policy of insurance in favour of respondent no.1 in
respect of Tanker bearing No.KA-08-9406 and the liability if any
is subject to terms and conditions of the policy and also
subject to valid and effective driving license of the driver in
question.
9. It further denied the very occurrence of the accident
and involvement of the tanker and the insured in terms of the
policy has not intimated the same. It is stated that as per
terms and conditions of the policy, the respondent no.1 has to
SCCH-9 7 MVC:6155 C/w 6156/19
intimate the accident immediately on its occurrence to insurer
and produce the required documents and to co-operate with
the insurer in defending the claim effectively and the insurer
had not reported about the incident and not submitted the
required documents and not co-operated with the insurer and
thereby violated terms and conditions of the policy, which is a
condition precedent to liability. As such the policy has become
null and void and the contract of insurance entered between
the insurers and insured cannot be enforceable.
10. It is further stated that as on the date of accident, the
canter was being driven in a reasonable speed and careful
manner and there was no rashness and negligence on the part
of the driver of canter. It has further contended that the
accident occurred due to the negligence on the part of the
petitioners being rider and pillion rider of motor cycle and the
petitioner without having proper look out about the vehicles
and was riding motor cycle in recklessly and carelessly and
thereby caused the accident. As such the accident took place
due to the negligence on the part of the petitioners
themselves and not due to the negligence on the part of the
driver of tanker. It is stated that the petitioners were not
wearing ISI mark headgear at the time of accident and thereby
SCCH-9 8 MVC:6155 C/w 6156/19
violated the provisions of M.V.Act. It has also contended that
the petitioner in MVC 6156/2019 was not holding valid and
effective driving licence to drive the motor cycle at the time of
accident and thereby violated the provisions of M.V.Act. The
accident has not taken place due to the negligence on the part
of the driver of tanker and there is negligence on the part of
the driver of insured tanker. It has specifically denied the age,
avocation and income of the petitioners. The compensation
claimed by the petitioners is highly excessive and exorbitant
one. Hence, prays to dismiss both the petitions.
11. The following issues are framed:
ISSUES IN MVC 6155/2019
1. Whether the petitioner proves that, he
sustained injuries on account of road
traffic accident which took place on
21.07.2019 at about 6.30 P.M. on Near
Sannolli Gate, Malur Tekkal Road, Malur
Tq, Kolar Dist. within the jurisdiction of
Malur Police Station, due to rash and
negligent driving of the driver of Petrol
tanker Lorry bearing Reg. No. KA-08-
9406 as alleged in the petition?
2. Whether the petitioner is entitled for
compensation? If so, how much and from
whom?
3. What order or award?
SCCH-9 9 MVC:6155 C/w 6156/19
ISSUES IN MVC 6156/2019
1. Whether the petitioner proves that, he
sustained injuries on account of road
traffic accident which took place on
21.07.2019 at about 6.30 P.M. on Near
Sannolli Gate, Malur Tekkal Road, Malur
Tq, Kolar Dist., within the jurisdiction of
Malur Police Station, due to rash and
negligent driving of the driver of Petrol
tanker Lorry bearing Reg. No. KA-08-
9406 as alleged in the petition?
2. Whether the petitioner is entitled for
compensation? If so, how much and from
whom?
3. What order or award?
12. Since these petitions are clubbed, evidence is adduced
in MVC 6155/2019. Since the petitioner is minor in MVC
6155/2019, his natural guardian, who is none other than father
of petitioner has adduced evidence as PW.1 and got marked
documents Ex.P1 to Ex.P13, Ex.P22 and 23, 23(a), 23(b)
Petitioner in MVC 6156/19 V.Diwakar is examined as PW.2 and
got marked document as Ex.P14 to 18. Dr.S.A. Somashekara is
examined as PW3 and got marked documents as Ex.P19 to 21
and closed their side. Respondent no.2 in spite of giving
sufficient opportunity has not adduced any oral evidence nor
placed any documentary evidence.
13. My findings on the above issues are as under:-
SCCH-9 10 MVC:6155 C/w 6156/19
Issue No.1 in both In the Affirmative;
the cases:
Issue No.2 in both In the Partly Affirmative;
the cases: from Respondent No.2
Issue No.3 As per final order;for the
in both the cases: following;
REASONS
ISSUE NO.1 IN BOTH THE CASES:
14. According to the petitioners, that on 21.07.2019 at
about 5.30. P.M. the petitioners were going towards their
village Chikkakunthuru from Malur town as a rider and pillion
rider on the motor cycle, bearing Reg. No. KA-04-HC- 5124, at
that time near Sonnahalli Gate, Malur Taluk, Kolar District, at
that time Petrol Tanker Lorry, bearing Reg. No. KA-08-9406
came from opposite direction at high speed in a rash and
negligent manner and dashed against the motor cycle. Due
to impact both the petitioners fell down from motorcycle and
sustained grievous injures.
15. In order to prove the above the said facts, the father
of petitioner in MVC 6155/2019 is examined as PW.1 and
petitioner in MVC 6156/2019 is examined as PW.1. Both PW1 &
2 filed their chief examination affidavit by reiterating the
averments made in the petitions and in support of their oral
SCCH-9 11 MVC:6155 C/w 6156/19
evidence got marked documents. PW1 & 2 were subjected to
cross-examination but nothing worth has been elicited to
disbelieve their version regarding the manner of accident and
rash and negligent driving of the driver of the Tanker Lorry.
16. On perusal of FIR, which is marked under Ex.P1/FIR &
complaint, which discloses that Malur Police have registered
the case in Cr.No.0174/2019 and the complaint was lodged by
one i.e., Krishnappa.K. Ex.P2 is the Spot panchanama, which
discloses the place of accident. Ex.P3 is the IMV report which
discloses the damages found in both the vehicles. Ex.P4 is the
statement of witness. Ex.P5 and 15 are the wound certificate,
which discloses petitioners have sustained injuries due to RTA.
Ex.P6 is the Charge Sheet filed by the Malur Police, which
discloses that the accident was occurred due to the rash and
negligent driving of driver of the Canter Lorry. On careful
scrutiny of oral and documentary evidence placed by
petitioners, it is crystal clear the accident was occurred due to
rash and negligent act of the driver of Tanker Lorry, bearing
Reg. No.KA-08-9406 . Admittedly, respondents have not placed
any contrary evidence to the evidence placed by petitioners to
show that the accident was occurred on the part of petitioners
themselves.
SCCH-9 12 MVC:6155 C/w 6156/19
17. During the course of arguments, learned counsel for
respondent no.2 has drawn the attention of this court with
regard to one day delay in lodging the complaint and
submitted that the alleged accident was occurred on
21.07.2019 and complaint was lodged on 22.07.2019, there is
in ordinate delay in lodging the complaint, it shows the vehicle
in dispute was falsely implicated to the just to gain
compensation and delay is not properly explained and prays
for dismissal of the petitions.
18. On the other hand, learned counsel for petitioner has
argued that the delay was properly explained by the
petitioners and the documentary evidence placed by
petitioners clearly shows the accident was caused only on the
part of Tanker Lorry, bearing Reg. No.KA-08-9406. Since, the
petitioners were taking treatment on the next of the accident
complaint was given, there is no delay in lodging complaint
and prays to reject the contention of respondents.
19. In the light of above submissions, I have carefully
perused the documents and evidence. No doubt on perusal of
documents i.e., FIR and complaint there is one day delay in
lodging complaint. But, on perusal of complaint averments, it
SCCH-9 13 MVC:6155 C/w 6156/19
shows immediately after the accident petitioners were taken to
Govt. Hospital at Malur and thereafter they were shifted to RL
Jalappa Hospital, Kolar and the accident was occurred at about
5.30 pm., and on the next day i.e., on 22.07.2019 at about
4.00 complaint was lodged. It is quite natural that one has to
take care of injured person immediately after the accident and
they should be treated initially and then only one has to think
of lodging of complaint or other legal procedures. Therefore,
this Tribunal is of the opinion the arguments canvassed by
learned counsel for respondent no.2 holds no water and there
is no delay as contended by respondent no.2 in lodging
complaint.
20. In this regard, I would like to rely upon the decision of
Hon'ble Apex Court reported in - (2011) 4 SCC 693 Ravi V/s
Bhadrinarayana, wherein the Hon'ble Apex Court has
held that - " It is well settled that delay in lodging FIR
cannot be a ground to doubt the claimant's case.
Knowing the Indian Conditions as they are, we cannot
expect a common man to first rush to the Police Station
immediately after the accident. Human nature and
family responsibilities occupy the mind of the kith and
kin to such an extent that they give more importance
SCCH-9 14 MVC:6155 C/w 6156/19
to get the victim treated rather than to rush to the
Police Station. Under such circumstances, they are not
expected to act mechanically with promptitude in
lodging the FIR with Police. Delay in lodging the FIR
thus, cannot be the ground to deny justice to the
victim. In cases of delay the Courts are required to
examine the evidence with a closer scrutiny and in
doing so, the contents of FIR should also be scrutinized
more carefully. If the court finds that there is no
indication of fabrication or it has not been concocted or
engineered to implicate innocent persons, then even if
there is a delay in lodging the FIR, the claim case
cannot be dismissed merely on that ground. The
purpose of lodging the FIR in such type of cases is
primarily to intimate the Police to initiate investigation
of Criminal offences. Lodging of FIR certainly proves
the factum of accident, so that victim is able to lodge a
case for compensation but delay is doing so cannot be
the main ground for rejecting the claim petition.
21. So, in view of the above decision, the contention
taken by learned counsel for respondent no.2 that there is
delay in lodging complaint etc., cannot be accepted and
SCCH-9 15 MVC:6155 C/w 6156/19
petitioner has satisfactorily explained the delay. In fact,
respondent has not adduced any contrary evidence to
substantiate the said contention.
22. Further, on perusal of Ex.P13 it discloses the driver of
Tanker Lorry, bearing Reg. No.KA-08-9406 has appeared in
criminal case registered against him in C.C.1054/19 on the file
of Prl.Civil Judge & JMFC, Malur and pleaded guilty of the
offence and deposited the fine. So, it is crystal clear, the
accident was occurred only on the part of the driver of Tanker
Lorry, bearing Reg. No.KA-08-9406.
23. The filing of charge sheet in the Criminal case is
prima-facie evidence for this case to prove that the accident
was due to the rash and negligent driving of driver of Petrol
Tanker Lorry bearing Reg.No.KA-08-9406. In fact, the proof of
accident itself is sufficient for the purpose of this case, as held
by the Hon'ble Supreme Court in a decision reported in
2001 ACJ 1975 (Sri. Kumaresh V/s. The Divisional
Manager, National Insurance Com. Ltd., and another), it
was held in the above decision that, in the motor accident
case strict proof of rash and negligent driving need not be
established, as was required in criminal cases. It is sufficient,
SCCH-9 16 MVC:6155 C/w 6156/19
if it is established that the claimant has sustained injuries as a
result of the accident. In view of the ratio laid down by the
Hon'ble Supreme Court in the above decision and also prima-
facie evidence produced by the petitioner, it is proved and
established that the accident was occurred due to rash and
negligent driving of driver of Tanker Lorry, bearing Reg. No. KA-
08-9406 and the petitioners have sustained injuries due to
RTA. Thus, this Tribunal is of the opinion that, the petitioners
have proved issue no.1. Accordingly, I answer issue no.1 in
the both cases in Affirmative.
24. ISSUE NO.2 in MVC 6155/2019:
(a) LOSS OF FUTURE EARNINGS:
As per the petition averments, the minor petitioner has
sustained fracture injuries in RTA and immediately he was
shifted to Malur Govt. Hospital and then referred to R.L.Jalappa
Hospital, Kolar, wherein X-rays were taken and fractures were
confirmed i.e., comminuted mid shaft fracture of left femur,
open type I proximal 1/3rd shaft fracture of both bones of left
leg, closed distal 1/3rd fracture of both bone of left forearm,
anteriorlysthesis of C2 over C3, left bronchial plexus injury, In
the hospital CT scan and MRI scan was done. Thereafter, open
SCCH-9 17 MVC:6155 C/w 6156/19
reduction and internal fixation with LCP plating for left femur,
closed eduction and internal fixation with TENS nailing for left
tibia., open reduction with internal fixation DCP painting for left
radius and ulna, C2/C3 anterior disectomy with fusion of C2 ,
C3 cervical vertebra. He was taken treatment as inpatient from
21.07.2019 to 28.08.2019 and he lost sensation in left upper
limb and taken higher treatment at Hosmat Hospital on
19.12.2019. To substantiate the said contention petitioner has
examined one Dr. S.A.Somashkear, Orthopaedic Surgeon, at
Bowring and Lady Curzon Hospital as PW.3 and PW3 has stated
that the petitioner/Rakesh, who came to him for assessment of
disability on 19.11.2021. He was diagnosed to have sustained
open type I comminuted mid shaft fracture left femur closed
reduction and internal fixation with TENS nailing for left tibia.,
open reduction with internal fixation DCP painting for left
radius and ulna, C2/C3 anterior disectomy with fusion of C2 ,
C3 cervical vertebra. He complains of inability to use left upper
limb for arthritis of daily living, pain and difficulties in walking
and climbing stairs, complains of inability to squat and sit in
crossed leg, complains of functionless, left upper limb
(damaging limb). On examination he walks with pain and
limping, wasting of left shoulder, griddle and upper limb and
SCCH-9 18 MVC:6155 C/w 6156/19
left thigh is seen, surgical scar are seen over right sight of
neck, left lower limb of the left forearm. On recent X-rays,
dated 19.11.2021 shows C2, C3 sterlize with implants in situ.
United fracture, left implants with implants in situ. United
fracture both bones left leg with implants in situ. United
fracture both bones left forearm with implants in situ.
PW.3/Doctor has assessed the disability as per the
guidelines issued by Ministry of Social Welfare and
Empowerment, Govt. of India. On the basis of mobility and
stability component basis and on extra points and he assessed
disability to fused C2, C2 spine 10%, whole body disability 5%,
left lower limb 38%, whole body disability is 19%. Further, left
upper limb brachial plexus injury with united fracture both
bones with implants in situ. Functionless daily living limb 90%,
whole body disability is 45%, disability by C spine left lower
limb 23% and total whole body disability is 57% and it is
permanent with complete loss of left upper limb. PW.3 was
thoroughly cross-examined by learned counsel for respondent
no.2 but nothing worth has been elicited to disbelieve entire
version of PW.3 regarding assessment of disability.
SCCH-9 19 MVC:6155 C/w 6156/19
During the course of arguments, learned counsel for
petitioner kept presented the minor petitioner before the
Tribunal for Observation and submitted that by seeing the
position of petitioner, photographs and CD produced at Ex.P23,
23 (a), 23 (b) clearly establishes that he is having 100%
permanent disability and he left the school because of his
disability and his education is discontinued and he has to live
rest of his life with the said disability and prays to consider the
disability as 100%.
In support of his argument, he has relied upon the
decisions reported in - 2020 ACJ 1042 Kajal V/s Jagadish
Chandra & Ors. And MFA 103473/2017 (MV) dtd.11 th
January 2022 on the file of Hon;ble High Court of
karnatka, Dharwad Bench (DB) Basavaraj V/s Umesh &
Ors. and another decision reported in 2020 ACJ 2695
Pappu Deo Yadav V/s Naresh Kumar & Ors.
On the other hand, learned counsel for respondent no.2
submitted that petitioner has examined PW.3, who is a doctor,
who is not a treated doctor and he has only assessed the
disability to the extent of 57%. If really petitioner is having
100% disability PW3 would have stated the same before the
court. But, he has stated only 57% disability to the whole
SCCH-9 20 MVC:6155 C/w 6156/19
body, it means the petitioner is having only 57% disability.
Since PW3 is not a treated doctor his entire evidence cannot
be accepted. Normally 1/3rd of the disability would be
considered while calculating the compensation and same has
to be taken into consideration. Further, on perusal of Ex.P22,
it doesnot discloses he was discontinued his studies and it only
reveals that he was absent from 29.05.2019 to 20.07.2019 and
he has not attended the school due to accidental injuries. So,
the arguments canvassed by petitioner counsel cannot be
accepted petitioner can continue his education and there is no
hurdle to continue the education, only to get sympathy of this
Court, they kept presented the petitioner before the Court and
prays to reject the contention of learned counsel for petitioner
and further prays to reduce the disability to 1/3rd.
In the light of above submissions, once again I have
perused the documentary evidence and taken note of the
position of petitioner and also perused the decision relied by
learned counsel for petitioners. The Hon'ble Apex Court in
Kajal's case, has taken note of the evidence of doctor and
considered the serious injuries caused to the brain of
petitioner and considering the medical evidence has taken
100% disability. But, herein this case, there is no head injury
SCCH-9 21 MVC:6155 C/w 6156/19
to the minor petitioner and minor petitioner is hale and
healthy with regard to mental condition is concerned. No
doubt, he is having some difficulty in walking, sitting,
squatting, sitting crossed legged etc. As rightly contended by
learned counsel for respondent no.2 only on the basis of
appearance of petitioner, disability cannot be assessed.
Further, PW3, who is the doctor and expert has assessed the
whole body disability to the extent of 57%. As rightly
submitted by learned counsel for respondent no.2 and as per
the dictum of Hon'ble High Court, normally the Tribunal will
consider 1/3rd of the disability, while calculating future
earnings.
In this regard, I would like to rely upon the decision
reported in - 2013 KAR MAC 284 Divisional Manager
National Insurance Co.Ltd., V/s Dr.Basavana Gowda &
Ors. And in another decision reported in 2010 KAR
MAC 343 Divisional Manager United India Insurance Co.
Ltd. B/s Basappa Doreppa Khanapure & anr., wherein
the Hon'ble High Court of Karnataka has held disability
indicated by Doctor was at 55% - Tribunal observed that
the disability certificate and evidence of Doctor does
not indicate what is the disability to the whole body -
SCCH-9 22 MVC:6155 C/w 6156/19
Tribunal considered the disability at 45% held - Said
procedure adopted by Tribunal on the face of it is
contrary to the accepted procedure of reckoning 1/3rd
of disability stated to the limb as disability to the whole
body. In both decisions the Hon'ble High Court of Karnataka
has held 1/3rd of particular disability has to be taken into
consideration as whole body disability. So, in view of the same,
the disability assessed by doctor at 57% cannot be considered.
Moreover, the doctor, who is examined before the court is not
a treated doctor. So, his evidence with regard to 57% disability
cannot be accepted, which is little higher side. Further, the
petitioner can continue his education and there is no injury or
disability to his head or there is no other weakness to
discontinue his education. Therefore, the arguments advanced
by the learned counsel for petitioner that the petitioner is
having 100% disability cannot be accepted. As discussed
above, PW.3 is not a treated doctor and disability assessed is
little higher. So, this Tribunal deems it appropriate to take
1/3rd of the said whole body disability, which comes to 19%
and it is rounded off to 20% and this Tribunal has considered
the whole body disability as 20% in this petition, which would
meet the ends of Justice.
SCCH-9 23 MVC:6155 C/w 6156/19
Further, learned counsel for petitioner has submitted the
petitioner has left the school and he has to live his rest of his
life with the said disability and Tribunal has to consider the
same and prays to award maximum compensation by taking
the income of petitioner as Rs.12,989/- as per the circular and
Gazette Notification, dtd. 15.02.2018 and Minimum Wages Act
w.e.f 30.12.2019 and in support of said contention, he has
furnished notification of employment in General Engineering
Fabrication and Allied works, dtd.30.12.2017.
On the other hand, learned counsel for respondent no.2
has opposed the same and submitted that since the petitioner
is minor, the said income cannot be taken. As per Master
Mallikarjun's case, notional income of Rs.15,000/- p.a., has to
be taken into consideration and prays to consider the same.
Again in the light of above submissions, I have carefully
perused the materials on record and the decision relied by
learned counsel for petitioner in this regard. The Hon'ble Apex
Court in Kajal V/s Jagadish Chandra's case has held that -
both the court below held that - since the girl was a young
child of 12 years only notional income of Rs.15,000/- p.a., can
be taken into consideration. We do not think, this is a proper
way of assessing the future loss of income. This young girl
SCCH-9 24 MVC:6155 C/w 6156/19
after studying could have worked and would have earned
much more than Rs.15,000/- p.a., and each case has to be
decided on its own evidence. But, taking notional income to
be Rs.15,000/- p.a., is not at all justified and the Hon'ble Apex
Court has taken minimum wages payable to a skilled workman
at Rs.4,846/- p.m., and awarded the compensation.
Further, the division bench of our Hon'ble High Court
in MFA 103473/17 (MV), Dtd.11th January 2022, while
considering the quantum of compensation to the petitioner,
who was aged about 14 years has held at para no.19 of its
judgment that there is no material to assess the income. In
the absence of such material, this court while deciding the
cases in Lok-adalath passed on the chart prepared by the
Karnataka Legal Services Authority, is accepting Rs.6,000/-
p.m., as a notional income, in respect of accident for the year
2011 and to this income 40% is to be added towards future
prospectus and taken Rs.8,400/- as notional income p.m., to
calculate compensation under the head of loss of future
prospectus and awarded the compensation. So, considering
these two decisions, this Tribunal is of the opinion that the
arguments canvassed by learned counsel for petitioner is
correct and this Tribunal has consider the income as
SCCH-9 25 MVC:6155 C/w 6156/19
Rs.12,989.30 per month. So, the income of petitioner is
considered at Rs.12,989.30 per month.
The Hon'ble High Court in the above said decision has
taken the multiplier at 18, for the age of 14 years boy. So, in
view of recent decision of Hon'ble Apex Court in Kajal's case
and the division bench ruling of our Hon'ble High Court of
Karnataka, with great respect of the Mast.Mallikarju's case,
relied by learned counsel for respondent no.2 cannot taken
into consideration.
So, the income of petitioner is taken at Rs.12,989.30 +
40% i.e., (Rs.5,195.60) is to be added to future prospects,
which comes to Rs.18,184.60
Rs.18,184.60 x 12 x 18 x 20% = Rs.7,85,574.72
and it is rounded off to Rs.7,85,575.00
So, the loss of future earnings of petitioner is
Rs.7,85,575/- and this tribunal awarded the same under
the head of loss of future earnings.
b) PAIN AND AGONY: The petitioner has sustained
fracture injuries in RTA that is - open type I comminuted mid
shaft fracture left femur closed reduction and internal fixation
with TENS nailing for left tibia., open reduction with internal
fixation DCP painting for left radius and ulnar, C2/C3 anterior
SCCH-9 26 MVC:6155 C/w 6156/19
disectomy with fusion of C2- C3 cervical vertebra. Immediately
petitioner was shifted to Govt. Hospital, Malur, wherein he took
first aid treatment and then shifted to R.L.Jalappa Hospital,
Kolar, wherein he took treatment as inpatient from 21.07.2019
to 28.08.2019 i.e., for 37 days. X-rays were taken, C.T scan
was done and discharged with an advise to take regular follow
up treatment. Therefore, considering the injuries sustained and
treatment taken by the petitioner, the Tribunal feels to award,
an amount of Rs.3,00,000/- under the head pain and
sufferings, it would meet the ends of justice.
c) MEDICAL EXPENSES: The petitioner has stated in his
evidence that he has incurred Rs.3,80,194/- towards medical
expenses towards treatment, medicine, conveyance etc. In
support of his contention he has produced medical bills and
prescriptions at Ex.P10 worth Rs.3,80,194/-.
I have carefully perused all the medical bills and
prescriptions and it is noticed that they had come into
existence after the date of accident and in all the bills and
prescriptions, the name of the petitioner does finds place. In
these medical bills and prescriptions, the names of medicines
and quantum of medicines and price of the medicine are all
mentioned. Thus, I do not see any reason to doubt the
SCCH-9 27 MVC:6155 C/w 6156/19
information available in the said medical bills. Hence, I accept
that, petitioner has spent total amount of Rs.3,80,194/-.
Therefore, the petitioner is entitled for total medical expenses
of Rs.3,80,194/-.
d) ATTENDANT, CONVEYANCE, FOOD, DIET,
NOURISHMENT AND OTHER INCIDENTAL EXPENSES:
In this regard the petitioner has not placed any specific
evidence, what is the actual amount spent towards attendant,
food, conveyance, nourishment and other incidental expenses.
Any how, on perusal of records i.e., Ex.P7/discharge summary
and evidence available on record the petitioner has taken the
treatment as inpatient at R.L.Jalappa Hospital, Kolar from
21.07.2019 to 28.08.2097 i.e., for 37 days. Considering the
nature of injuries sustained and treatment taken, petitioner
needs one attendant to look after him. So, atleast an amount
of Rs.1,000/- per day minimum is required for conveyance,
food, nourishment and other incidental expenses. So,
considering the same an amount of Rs.37,000/- is awarded
under this head and it would meet the ends of justice.
SCCH-9 28 MVC:6155 C/w 6156/19
e) LOSS OF EARNINGS OF FAMILY MEMBERS:
As per the evidence and documents petitioner has taken
treatment as inpatient for a period of 37 days and his family
member have accompanied him and attended the petitioner
and there is loss of income of family members, who have
attended the petitioner at hospital. So, they must be paid for
loss of income during the stay in hospital along with petitioner.
So, considering the same, this Tribunal feels atleast they would
have lost Rs.500/- per day. So, it is considered they have
sustained total loss of Rs.18,500/- during the said period of 37
days. So, this Tribunal awarded as loss of income of family
members at Rs.18,500/-.
f) LOSS OF FUTURE AMENITIES, MARRIAGE
PROSPECTUS AND ENJOYMENT OF LIFE: The petitioner has
to live rest of his life along with the said disability of his day to
day comforts. The said disability affects on the marriage
prospects of petitioner and also his future life. So, there is a
loss of future amenities, enjoyment of life and marriage
prospects. Hence, this Tribunal feels if compensation of
Rs.5,00,000/- is awarded under this head, it would meet the
ends of justice. Hence, the petitioner is entitled for
Rs.5,00,000/- under this head.
SCCH-9 29 MVC:6155 C/w 6156/19
g) LOSS OF FUTURE MEDICAL EXPENSES:
PW.3/doctor in his evidence has stated he needs surgery for
removal of implants, in limb, which would cost around
Rs.50,000/- to Rs.60,000/- in private hospitals. But, he has not
produced any estimation or other documents to show that
removal of implants operation required, which cost around
Rs.50,000/- to Rs.60,000/-. In the absence of said
documentary evidence, this Tribunal feels atleast Rs.20,000/-
to Rs.25,000/- is required for removal of implants. Hence, this
Tribunal feels to awards Rs.25,000/- under this head.
25. Now the total compensation awarded stands as
follows:-
a) Loss of future earnings 7,85,575.00
b) Pain and suffering Rs. 3,00,000-00
c) Medical expenses Rs. 3,80,194-00
d) Food and nourishment,
conveyance & attendant Rs. 37,000.00
charges
e) Loss of earning of family Rs. 18,500.00
members
f) Loss of future amenities, Rs. 5,00,000.00
marriage prospects and
enjoyment of life
g) Loss of future medical Rs. 25,000.00
expenses
Total Rs. 20,46,269.00
SCCH-9 30 MVC:6155 C/w 6156/19
So considering all the above heads, the petitioner
is entitled for total compensation of Rs.20,46,269/-.
26. ISSUE NO.2 in MVC 6156/2019: On considering the
oral evidence of PW1 and documentary evidence, which is
marked at Ex.P15/wound certificate, it reveals that petitioner
has taken treatment at Govt. Hospital Malur. Thereafter, he
was shifted to R.L Jalappa Hospital, Kolar for better treatment,
wherein it was diagnosed - right occipital region subarchnoid
hemorrhage are noticed and treated conservatively. The
petitioner took treatment as inpatient for only one day.
27. Ex.P15, wound certificate discloses the petitioner
sustained - swelling and abrasion present over left elbow, and
blunt trauma to the chest. Both the injuries are simple in
nature and are not grievous in nature. Admittedly, petitioner
has not sustained any grievous injury and he has taken
treatment for the said injury for only one day and discharged
on the same day. But, he has placed medical bills at Ex.P17 for
Rs.23,785/- towards medical expenses.
28. Further, he has not produced any documentary
evidence to show that he was working as driver and earning
Rs.20,000/- per month. Except his D.L at Ex.P18 and self
SCCH-9 31 MVC:6155 C/w 6156/19
serving statement, absolutely there is no evidence available
on record to show that he was working as driver and he
sustained loss due to accidental injuries etc. As per wound
certificate he has sustained only simple injuries as stated
above. So, considering the same and some amount spent
towards medical expenses. This Tribunal feels, it is just and
proper to award Global Compensation of Rs.35,000/- with
interest @ 6% p.a., which would meet the ends of justice.
Liability:-
29. Admittedly, except some formal denial respondent
no.2 has not placed any evidence before the Tribunal to show
that the accident was not caused due to the fault of driver of
Tanker Lorry, bearing Reg.No. KA-08-9406 . Respondent no.1 is
the Owner and Respondent no.2 is the Insurer of said vehicle.
There is no dispute regarding the issuance of policy by
respondent no.2 bearing No.VGC.056091100100 w.e.f
19.06.2019 to 18.06.2020. Therefore, the respondent no.1 and
2 are jointly and severally liable to pay compensation.
However, the respondent no.2 being the Insurer shall liable to
pay compensation to the petitioners.
SCCH-9 32 MVC:6155 C/w 6156/19
30. It is settled law that while awarding interest on the
compensation amount, the Tribunal has to take into account
the rate of interest of the nationalised bank and the cost of
living as held by the Hon'ble Supreme Court reported in case
of Municipal Council of Delhi V/s Association of Victims
of Upphara Tragedy reported in (2011) 4 SCC 481,
wherein the Hon'ble Apex Court held that the Tribunal has to
take into account the rate of interest of the nationlaised bank
on present day cost of living. Further, our Hon'ble High
Court of Karnataka in MFA No.5956/2017 c/w 6810/2017
(MV), wherein the Hon'ble High Court of Karnataka by
referring the Sec.149 (1) of the M.V.Act read with Sec.34 of
CPC has awarded 6% interest on the compensation amount by
taking into the account of the rate of interest of the
nationalized bank at present and cost of living. So, this
Tribunal awarded 6% interest. Further, respondent no.2 is
liable to pay compensation within two months from the date of
order with interest at 6% p.a., from the date of petition till
realization. Accordingly, Issue No.2 is answered partly in the
Affirmative in both the cases.
ISSUE-3 IN BOTH THE CASES:
SCCH-9 33 MVC:6155 C/w 6156/19
31. In view of my above discussions, I proceed to pass
the following:-
ORDER
The petition filed by the petitioners U/s 166 of Motor Vehicle Act 1989 are hereby partly allowed with costs.
Petitioner in MVC 6155/19 is entitled for compenssation of Rs.20,46,269/- (Rupees Twenty Lakhs Forty Six Thousand Two Hundred Sixty Nine Only) {Future medical expenses of Rs.25,000/- doesnot carry any interest} with interest @ 6% per annum from the date of petition till its realization.
Petitioner in MVC 6156/19 is entitled for Global compensation of Rs.35,000/- (Rupees Thirty Five Thousand Only) with interest @ 6% per annum from the date of petition till its realization.
Respondent No.2, being the insurer is liable to pay compensation to the petitioners in both the petitions and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
After deposit, the medical expenses borned by petitioner Rs.3,80,194/- with accrued interest shall be released in favour of father of petitioner. The remaining compensation amount with accrued interest shall be kept in F.D. in the name of petitioner till he attains the age of majority or three SCCH-9 34 MVC:6155 C/w 6156/19 years, whichever is later by representing his father as natural guardian in any nationalised bank or schedule bank or the choice of petitioner. However, petitioner is at liberty to withdraw the periodical accrued interest as and when required.
In MVC 6156/2019 After deposit of compensation amount, since the amount is meager entire amount shall be disbursed in favour of petitioner directly through E-Payment by obtaining the bank account details.
Advocate's fee is fixed at Rs.1,000/- each in cases.
Draw award accordingly.
The original judgment shall be kept in MVC 6155/19 and the copies thereof shall be kept in MVC 6156/19.
(Dictated to stenographer, directly on computer, typed by her, revised, corrected and then pronounced by me in the open court, on this the 16 th day of April, 2022) (Umesha.H.K) Judge, Court of Small Causes & MEMBER: MACT, Bengaluru.
ANNEXURE List of witness examined for the petitioner:
PW.1 V.Prakash
PW.2 V.Diwakar
PW.3 Dr.S.A. Somashekara
SCCH-9 35 MVC:6155 C/w 6156/19
List of Documents exhibited for the petitioner:
Ex.P1 Copy of FIR and complaint Ex.P2 Copy of Spot Mahazar Ex.P3 Copy of IMV report Ex.P4 Copy of petitioner statement Ex.P5 Copy of wound certificate Ex.P6 Copy of charge sheet Ex.P7 Discharge summary Ex.P8 OP records Ex.P9 Study Certificate Ex.P10 124 Medical bills Ex.P11 1 Medical prescription Ex.P12 Notarized copy of Aadhaar card of petitioner and petitioner father Ex.P13 Notarized copy of order sheet in CC No.1054/2019 Ex.P14 Statement of petitioner Ex.P15 Wound certificate Ex.P16 Discharge summary Ex.P17 18 Medical bills Ex.P18 Notarized copy of DL Ex.P19 OP Card Ex.P20 3 X-ray Ex.P21 Outpatient bills Ex.P22 Concerned letter issued by SFS High School Ex.P23 CD and photographs Ex.P23(a) Photographs &23(b) List of witness examined for the respondents:
NIL SCCH-9 36 MVC:6155 C/w 6156/19 List of Documents exhibited for the respondents:
NIL Judge, Court of Small Causes & MEMBER: MACT, Bengaluru.