Bangalore District Court
In 1. Sri Venkataramappa vs In 1. M/S. Cholamandalam General on 19 July, 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 19th DAY OF JULY 2016
MVC Nos.1619/2013, 1620/2013, 4890/2013 &
4891/2013
Petitioners in 1. Sri Venkataramappa,
MVC 1619/2013 S/o Late Sallapurappa,
Aged about 45 years,
2. Smt. Nagamma,
W/o Venkataramappa,
Aged about 40 years,
3. Sri Prasad,
S/o Changalarayappa,
Aged about 21 years,
All are residing at:
Siddanahalli (Village),
Byrakur (Post),
Mulbagal (Taluk),
Kolar (District).
(Sri K. Srinivasa Gowda,
Advocate)
Petitioner in Sri Prasad,
MVC 1620/2013 S/o Changalarayappa,
Aged about 21 years,
Residing at:
Siddanahalli (Village),
Byrakur (Post),
2 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Mulbagal (Taluk),
Kolar (District).
(Sri K. Srinivasa Gowda,
Advocate)
V/s.
Respondents in 1. M/s. Cholamandalam General
MVC 1619/2013 & Insurance Co. Ltd.,
1620/2013 No.9, Ulsoor road, Opposite :
Gurudwar, Ulsoor,
Bangalore - 560 008.
Insurer of Lorry AP-02-X-8288
Policy:3379/00412706/000/02,
period: 19-01-2012 to
18-01-2013.
(Sri H.K. Ramamurthy,
Advocate)
2. Sri K. Narayanaswamy,
S/o Kodandappa,
Major, No.72, Majara
Siddanahally (V), Byrakur (P),
Mulbagal (T), Kolar (Dist.).
RC Owner AP-02-X-8288.
(Sri G. Srinivasa, Advocate)
3. Sri L. Anki Reddy,
S/o L. Ramakrishna Reddy,
Major, R/at No.3/492-5, IInd
Floor, Krishnapuram, Tadipatri,
Ananthapur (Dist.),
A.P. - 515 411.
(Previous RC Owner)
(Exparte)
4. Sri Lakshmi Narayana M.,
S/o Narayanaswamy,
Major, R/at No.5-6-47,
Lakshmipuram, Hindupur,
3 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Ananthapuram (Dist.),
A.P. (RC Owner of AP-02-Y-
2877)
(Exparte)
5. M/s. National Insurance Co.
Ltd., Subharam Complex,
M.G. Road, Bangalore-560 002.
Insurer of Vehicle No.AP-02-Y-
2877.
(Sri S.R. Murthy, Advocate)
Petitioner in Smt. Neelamma,
MVC 4890/2013 S/o Beerappa,
Aged about 40 years,
Residing at No.1619,
Vijaya Bank Colony, Horamavu,
Bangalore - 560 043.
(Sri N. Manjunath, Advocate)
Petitioner in Kumari Devi,
MVC 4891/2013 D/o Beerappa,
Aged about 16 years,
Since the petitioner is minor
R/by her mother/natural
guardian: Smt. Neelamma,
W/o Beerappa,
Aged about 40 years,
Residing at No.1619,
Vijaya Bank Colony, Horamavu,
Bangalore - 560 043.
(Sri N. Manjunath, Advocate)
V/s.
Respondents in 1. Sri K. Narayanaswamy,
MVC 4890/2013 & S/o Kodandappa,
4891/2013 Major by age, R/at No.72,
4 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Majara Siddanahally Village,
Byrakur Post,
Mulbagal Taluk, Kolar District.
(Sri G. Srinivasa, Advocate)
2. Sri Lavanuru Anki Reddy,
S/o Ramakrishna Reddy,
Major by age, R/at H.No.3/492-
5, IInd Floor, Krishnapuram,
Tadipatri, Ananthapur,
Andhra Pradesh.
(Exparte)
3. M/s. Cholamandalam M.S.
General Insurance Co. Ltd.,
No.135/5, 2nd Floor,
15th Cross, 3rd Phase,
J.P. Nagar, Bangalore - 78.
(Sri H.K. Ramamurthy,
Advocate)
4. Sri Lakshmi Narayana M.,
S/o Narayanaswamy,
Major by age, R/at No.5-6-47,
Lakshmipuram, Hindupur,
Ananthapuram District,
Andhra Pradesh.
(RC Owner of lorry bearing Reg.
No.AP-02-Y-2877)
(Exparte)
5. The National Insurance Co. Ltd.,
Regional Office, No.144,
Subharam Complex,
M.G. Road, Bangalore.
(Insurer of lorry bearing Reg.
No.AP-02-Y-2877.
(Sri V.R. Muralidhara, Advocate)
5 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
COMMON JUDGMENT
The petitioners in MVC 1619/2013 being the legal heirs
of the deceased Smt. Salamma @ Sarala, the petitioner in
MVC 1620/2013, 4890/2013 and 4891/2013 being the
injured have filed all claim petitions under Section 166 of
Motor Vehicles Act, 1989, claiming compensation on account
of death and injuries sustained in a road traffic accident
which alleged to have been occurred on 01-01-2013.
2. All these petitions arising out of the same accident.
Hence, they are clubbed and common evidence was recorded
and disposed off by this common judgment.
3. The brief facts of the petition averments are as under:
On 01-01-2013, the deceased by name Smt. Salamma @
Sarala, the petitioner in MVC 1620/2013, 4890/2013 and
4891/2013 were proceeding in a lorry bearing No.AP-02-X-
8288 as loader and unloader. On the said day a mud was
loading in the above said lorry at Siddanahalli and when they
proceeded towards Bangalore in order to unload the same. At
about 11.40 p.m., when the said lorry reached near
Commercial Check Post, Hosakote, at that time the driver of
the said lorry drove the same in a rash and negligent manner
6 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
and dashed against the stationed lorry bearing No.AP-02-Y-
2877, because of which Smt. Salamma @ Sarala died and
other petitioners were sustained injuries. It is the case of the
petitioners in MVC 1619/2013 that, immediately after the
accident, the deceased was shifted to MVJ Hospital, Hosakote
by the public, wherein she took treatment for fractures and
thereafter she was shifted to NIMHANS Hospital, Bangalore,
Victoria Hospital and further shifted to Icon Hospital,
Bangalore, wherein she was an inpatient from 01-01-2013 to
13-01-2013. It is further case of the petitioners that, on 13-
01-2013 due to the accidental injuries, Smt. Salamma @
Sarala died.
4. The petitioner in MVC 1620/2013 in the said
accident has sustained crush injury to the right leg and
fracture of both bones of left leg. He was shifted to MVJ
Hospital, Hosakote for first aid treatment, wherein his right
leg up to knee was amputated. Thereafter, the petitioner was
shifted to Bowring and Lady Curzon Hospital, Bangalore,
wherein he was an inpatient from 01-01-2013 to 07-03-2013.
In the said hospital, the petitioner underwent 3 surgeries for
the fractures. It is further case of the petitioner that, artificial
7 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
leg was fixed on the right side and doctors advised for future
surgeries.
5. It is stated that, the deceased in MVC 1619/2013
was coolie under respondent No.2 and earning Rs.7,500/- per
month, whereas the petitioner in MVC 1620/2013 was also
coolie under respondent No.2 and earning Rs.7,500/- per
month. Due to the sudden demise of Smt. Salamma @ Sarala,
the entire family is suffering both mentally and financially.
6. It is further case of the petitioners in MVC
1619/2013 that, they have spent considerable amount
towards the treatment of the deceased and petitioner in MVC
1620/2013 has also spent considerable amount towards his
treatment.
7. The petitioner in MVC 4890/2013 and 4891/2013,
who were loader and unloader in the above said truck, they
also sustained injuries. The petitioner in MVC 4890/2013
sustained multiple rib fracture of bilateral with haemothorax
hypovolemic shock, left diaphragmatic rupture with abdomen
organ herniation, segmental gangrene of small bowel, anterior
posterior compression fracture of pelvis, left medial condyle
left elbow fracture. She underwent surgery at Brookefield
8 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Hospital for stabilization of pelvis with external fixator, elbow
cast for condyle fracture on 02-01-2013. The petitioner spent
more than Rs.2,00,000/- for her treatment.
8. The petitioner in MVC 4891/2013 by name Kumari
Devi in the accident has sustained fracture of proximal 1/3rd
right radius, lacerated wound with skin loss over right thigh
and she underwent wound debridement, open reduction and
internal fixation with DCP on 07-01-2013 at MVJ Hospital
and discharged on 19-01-2013. Both the petitioners were
earning Rs.9,000/- per month from respondent No.1. The
respondent No.3 was the insurer of the said lorry.
9. During the pendency of the petitions, the respondent
No.4 owner of the lorry bearing No.AP-02-Y-2877 and
respondent No.5 insurer of the above said lorry were
impleaded as respondent No.4 and 5. Hence, all the
petitioners prayed to allow their petitions.
10. In response to the notice, the respondent No.1 in
MVC 1619/2013 and 1620/2013 and respondent No.3 in
MVC 4890/2013 and 4891/2013 appeared, so also
respondent No.5.
9 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
11. The respondent No.1 in MVC 1619/2013 and
1620/2013 and respondent No.3 in MVC 4890/2013 and
4891/2013 filed his objections as under;
The respondent admitted that, the vehicle bearing
No.AP-02-Y-8288 was insured with it and at a material point
of accident, the policy was in existence. But contended that,
its liability is subject to terms and conditions and limitations
of the policy. The respondent contended that, the claim
petitions filed by the petitioners is bad for non joinder of
insured and insurer of lorry bearing No.AP-02-Y-2877. The
respondent further taken up contention that, the deceased
and other persons were proceeding in the above said goods
vehicle as a gratuitous passengers. The driver of the said lorry
did not possessed valid and effective driving licence at the
time of accident. The respondent denied the age, income and
occupation of all the petitioners and also death of Smt.
Sallamma @ Sarala and injuries sustained by the other
petitioners. The respondent further denied the expenses
incurred by the petitioners for their treatment. The
respondent further contended that, the lorry bearing No.AP-
02-X-8288 was not at all involved in the accident. Hence, on
10 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
all these grounds, the respondent prayed to dismiss the
petitions with costs.
12. The respondent No.2 in MVC 1619/2013 and
1620/2013 and respondent No.1 in MVC 4890/2014 and
4891/2014 filed his objections stating that, he is the RC
owner of the lorry bearing No.AP-02-X-8288 and it was
insured with the first respondent who issued a policy and it
was valid as on the date of accident. Hence, it is the first
respondent who is liable to pay compensation. The
respondent admitted that, on the alleged date of accident,
deceased and other petitioners were loading mud in
Siddanahalli and they proceeded in the said lorry in order to
unload the same at Bangalore. The respondent denied that,
due to the rash and negligent driving of the driver of the
above said lorry, the accident took place. The respondent
contended that, the driver of the lorry bearing No.AP-02-Y-
2877 halted his lorry in the middle of the road, without any
signal or indicator to other road users. Hence, the accident
took place on account of negligence on the part of the said
lorry. The respondent denied that, the deceased and other
11 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
petitioners were earning Rs.7,500/- and Rs.9,000/- per
month and prayed to dismiss the petitions.
13. The respondent No.5 appeared and filed his
objections contending that, the owner and insurer of the lorry
bearing No.AP-02-Y-2877 are neither proper or necessary
parties, the petition is bad for non joinder of owner and
insurer of lorry bearing No.AP-04-TU-1380. The respondent
No.5 contended that, the respondent No.4 has entrusted his
vehicle to a person who did not possessed valid and effective
driving licence as on the date of accident. Thereby, there is a
violation of terms and conditions of the policy and permit. The
respondent contended that, the driver of the lorry bearing
No.AP-02-Y-2877 lodged a complaint before the jurisdictional
police, who after thorough investigation filed a charge sheet
against the driver of the lorry bearing No.AP-02-X-8288 and it
is clear that, the alleged accident occurred solely due to the
rash and negligent driving of the driver of the lorry bearing
No.AP-02-X-8288. The respondent No.5 denied the age,
income and occupation and also injuries sustained by the
petitioners and death of Smt. Sallamma @ Sarala. The
respondent No.5 contended that, the driver of the above said
12 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
lorry before hitting to lorry bearing No.AP-02-Y-2877 has
dashed against another lorry bearing No.AP-04-TU-1380
which was stationed behind the lorry bearing No.AP-02-Y-
2877. Hence, on all these grounds, the respondent No.5
prayed to dismiss the petitions with costs.
14. On the basis of the above pleadings, my predecessor
in office has framed the following issues in all the petitions:
ISSUES IN MVC No.1619/2013
1. Whether the petitioners prove that,
the deceased Salamma @ Sarala, died
in a road traffic accident on 01-01-
2013 at about 11.40 p.m., Opp. To
commercial Check Post, Bangalore-
Kolar road, NH-4, Hosakote, due to the
rash and negligent driving of the driver
of the lorry bearing registration No.AP-
02-X-8288?
2. Whether the petitioners are entitled
for any compensation? If so, to what
extent and from whom?
3. What order or award?
ISSUES IN MVC No.1620/2013
1. Whether the petitioner proves that,
he has sustained grievous injuries as
mentioned in Column No.11, in a road
traffic accident on 01-01-2013 at
about 11.40 p.m., Opp. to Commercial
Check Post, Bangalore-Kolar road, NH-
13 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
4, Hosakote, due to the rash and
negligent driving of the driver of the
lorry bearing registration No.AP-02-X-
8288?
2. Whether the petitioner is entitled for
any compensation? If so, to what
extent and from whom?
3. What order or award?
ISSUES IN MVC No.4890/2013
1. Whether the petitioner proves that,
she has sustained grievous injuries as
mentioned in Column No.11, in a road
traffic accident on 01-01-2013 at
about 11.40 p.m., Opp. to Commercial
Check Post, Bangalore-Kolar road, NH-
4, Hosakote, due to the rash and
negligent driving of the driver of the
lorry bearing registration No.AP-02-X-
8288?
2. Whether the petitioner is entitled for
any compensation? If so, to what
extent and from whom?
3. What order or award?
ISSUES IN MVC No.4891/2013
1. Whether the petitioner proves that,
she has sustained grievous injuries as
mentioned in Column No.11, in a road
traffic accident on 01-01-2013 at
about 11.40 p.m., Opp. to Commercial
Check Post, Bangalore-Kolar road, NH-
4, Hosakote, due to the rash and
negligent driving of the driver of the
lorry bearing registration No.AP-02-X-
8288?
14 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
2. Whether the petitioner is entitled for
any compensation? If so, to what
extent and from whom?
3. What order or award?
15. The legal heirs of deceased Smt. Sallamma @
Sarala were examined as PW1 and got marked documents at
Ex.P1 to Ex.P30. The petitioner in MVC 1620/2013 examined
as PW2 and got marked Ex.P31 to Ex.P42. The doctor was
examined as PW3 and got marked documents at Ex.P44 to
Ex.P46. Whereas petitioner in MVC 4890/2013 was examined
as PW1 on her behalf and on behalf of petitioner in MVC
4891/2013 and got marked documents at Ex.P1 to Ex.P11.
16. The official of the respondent No.1 company in MVC
1619/2013 and 1620/2013 and respondent No.3 company in
MVC 4890/2013 and 4891/2013 was examined as RW1 and
got marked documents at Ex.R1 to Ex.R5. The official of the
respondent No.5 company examined as RW2 and got marked
document at Ex.R6.
17. I have heard the arguments and perused the
materials on record.
15 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
18. The learned counsel for the petitioners in MVC
1619/2013 and 1620/2013 has relied upon the following
rulings:
1. 2010 (2) Kar. L.J. 650 (SC) between S.
Suresh Vs. Oriental Insurance Company
Limited and another.
2. 2011 AAIR SCW 4787 between
Ramchandrappa Vs. The Manager, Royal
Sundaram Alliance Insurance Company
Limited.
3. 2011 (5) KCCR SN 544 (SC) between Raj
Kumar Vs. Ajay Kumar and another.
4. 2005 ACJ 704 between A. Lakshmi and
others Vs. Arjun Associated Pvt. Ltd., and
another.
5. (2009) 6 SCC 121 between Sarla Verma
(SMT) and others Vs. Delhi Transport
Corporation and another.
6. 2011 (6) Kar. L.J. 646 between New India
Assurance Company Limited, Bangalore Vs.
M. Prabhu and another.
19. The learned counsel for the respondent No.2 in MVC
1619/2013 and 1620/2013 and respondent No.1 in MVC
4890/2013 and 4891/2013 has relied upon the following
rulings:
1. ILR 2002 KAR 893 between Kumari
Jyothi and others Vs. Mohd. Usman Ali
and others.
2. 2009 ACJ 551 between Rajni Soni and
others Vs. Hemraj and others.
3. 2007 (1) TAC 795 (SC) between New India
Assurance Company Limited Vs. smt.
Kalpana and others.
16 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
20. Considering the position of law laid down in the
above said rulings, these petitions will be disposed off.
21. By considering the evidence on record and because
of my below discussed reasons, I answer the above issues in
the following:
ISSUES IN MVC No.1619/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
Issue No.3: AS PER FINAL ORDER.
ISSUES IN MVC No.1620/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
Issue No.3: AS PER FINAL ORDER.
ISSUES IN MVC No.4890/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
Issue No.3: AS PER FINAL ORDER.
ISSUES IN MVC No.4891/2013
Issue No.1: IN THE AFFIRMATIVE.
Issue No.2: PARTLY IN THE AFFIRMATIVE
Issue No.3: AS PER FINAL ORDER.
17 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
REASONS
ISSUE NO.1 IN ALL THE PETITIONS:
22. The petitioners have come up with specific case that,
due to the rash and negligent driving of the driver of the lorry
bearing No.AP-02-X-8288, the death of Smt. Sallamma @
Sarala and injury to them was caused. The respondent No.1
in MVC 1619/2013 and 1620/2013, who is the respondent
No.3 in MVC 4890/2013 and 4891/2013 contended that, the
accident was occurred due to carelessness on the part of the
driver of the lorry bearing No.AP-02-Y-2877 which was parked
on the middle of the road without taking precautionary
measures and without following traffic rules and regulations.
The respondent also contended that, the said lorry bearing
No.AP-02-Y-2877 was stationed in the middle of the road
without giving any signal or indicator to the other road users
and hence alleged accident took place. Per contra, the
respondent No.5 who is the insurer of the lorry bearing
No.AP-02-Y-2877 contended that, before hitting the lorry in
which the petitioners and deceased were proceeding, it hit to
another lorry bearing No.AP-04-TU-1380 and then dashed
against the lorry bearing No.AP-02-Y-2877. It is also the
18 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
contention of the respondent No.5 that, on the basis of the
complaint lodged by the driver of the lorry bearing No.AP-02-
Y-2877, the jurisdictional police after thorough investigation
have filed a charge sheet against the driver of the lorry
bearing No.KA-02-X-8288 which reveals that, the accident
was due to rash and negligence on the part of the driving of
the driver of the lorry bearing No.AP-02-X-8288.
23. In this case, the PW's 1 to 3 have deposed in
consonance with their petition averments. They have deposed
that, on the alleged date of accident, they were proceeding in
a lorry bearing No.AP-02-X-8288 as a loader and unloader of
sand and at the time of accident, the sand was loaded on the
said lorry. The driver of the said lorry when reached near
commercial check post of Hosakote, at that time, he drove the
lorry in a rash and negligent manner and dashed against
another lorry bearing No.AP-02-Y-2877 which was stationed.
They have deposed regarding the death of Smt. Sallamma @
Sarala and injuries sustained by them in the accident.
Further, they have also deposed that, the jurisdictional police
have filed charge sheet against the driver of the above said
lorry for the offences punishable under Section 279, 337, 338
19 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
and 304(A) of IPC. Per contra, the official of the respondent
No.1 company insurer of lorry bearing No.AP-02-X-8288
examined as RW1, who has stated that, on the alleged date of
accident, the deceased and other petitioners were proceeding
in the said lorry as a gratuitous passengers which was goods
vehicle and as per the police documents and hospital records,
the petitioners and deceased were proceeding as a gratuitous
passengers and accident was due to the negligence on the
part of the driver of the lorry bearing No.AP-02-Y-2877 which
was parked on the extreme right side of the road, without
taking any precautionary. Hence, the accident was due to
negligence on the part of the driver of the said lorry. The
official of the respondent No.5 company stepped into witness
box as RW2 and stated that, the accident was due to rash
and negligent driving of the driver of the lorry bearing No.AP-
02-X-8288 against whom, the jurisdictional police have filed
charge sheet.
24. In this case, the involvement of the lorry bearing
No.AP-02-X-8288 and No.AP-02-Y-2877 is not in dispute. The
death of Smt. Sallamma @ Sarala and the injuries to the
other petitioners is also not in dispute. From the objections of
20 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
respondent No.1 what it can be gathered that, there is a
serious dispute with regard to the negligence aspect.
25. The PW1 in MVC 1619/2013 father of the deceased
Smt. Sallamma @ Sarala was not an eye witness to the
accident. In his cross examination, he clearly admitted that,
he was not an eye witness to the accident and when he
received the information of accident, he was in native. He has
not stated regarding how many persons were proceeding in
the lorry and also he did not know the driver of the lorry by
name Yusuf Khan. It was suggested to PW1 that, at the time
of accident, the deceased and other petitioners were
proceeded to Kotilingeshwara Temple as a paid passengers in
the above said lorry and in order to get compensation, they
have falsely stated that, the petitioners and the deceased were
loader and unloader of the sand in the said lorry.
26. I have carefully perused the complaint marked at
Ex.P1 in MVC 1619/2013. On perusal of the complaint, it is
quite clear that, the driver of the lorry bearing No.AP-02-Y-
2877 has lodged the complaint stating that, on 01-01-2013 at
about 11.40 p.m., he parked his lorry by the side in order to
get seal from check post, near Hosakote on Bangalore-Kolar
21 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
road, at that time the driver of the lorry bearing No.AP-02-X-
8288 came from Kolar towards Bangalore loaded with sand in
a rash and negligent manner and dashed against the lorry
bearing No.AP-04-TU-1380 which was parked on the back
side of lorry bearing No.AP-02-Y-2877 and thereafter the lorry
bearing No.AP-02-X-8288 dashed against his lorry because of
which, his lorry moved forward and dashed against another
lorry which was parked in front. On the basis of the said
complaint, the jurisdictional police have registered a case in
their Crime No.03/2013 as per Ex.P2. During the course of
investigation, the jurisdictional police have conducted the
spot panchanama, motor vehicles inspection of above said 3
vehicles as per Ex.P6 and recorded the statement of the
witness as per Ex.P8 to Ex.P14 and filed charge sheet as per
Ex.P16 against the driver of the lorry bearing No.AP-02-X-
8288.
27. The sketch was marked at Ex.P4 in MVC
4890/2013 reveals that, on the edge of the left side of the
road, the lorry bearing No.AP-02-Y-2877 and No.AP-04-TU-
1380 were stationed. As per the sketch, the width of the road
is 30 feet excluding the width of service road. As per the
22 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
sketch, there is a road divider in between the said road which
is National Highway - 4. The sketch also reveals that, the
lorry bearing No.AP-02-X-8288 first dashed against lorry
bearing No.AP-04-TU-1380 and thereafter it was dashed
against lorry bearing No.AP-02-Y-2877. The motor vehicles
accident report marked at Ex.P5 in MVC 4890/2013 reveals
that, front as well as rear portion of all these lorries had been
damaged in the accident. It is to be noted that, the
respondent No.1 who is the respondent No.3 in MVC
4890/2013 has not disputed the said sketch marked at
Ex.P4. There is no single suggestion denying the correctness
of the said sketch in the entire cross examination of PW's. So,
it is clear that the sketch has not been disputed by the
respondent No.1 who is the respondent No.3 in MVC
4890/2013.
28. As already I have stated that, the PW1 in MVC
1619/2013 is not an eye witness to the accident. The PW2
who was another injured is an eye witness to the accident. In
cross examination PW2 has stated that, on the date of
accident there were 4 persons including him were proceeding
in lorry bearing No.AP-02-X-8288. He stated that, on the date
23 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
of accident, the said lorry was loaded with sand from
Byrakur. The PW1 failed to state from whose land the said
sand was loaded and where it is to be unloaded. He stated
that, the driver of the said lorry one Mr. Yusuf Khan, who was
the resident of Punganur. It was suggested to PW2 that, the
lorry bearing No.AP-02-Y-2877 was halted in the middle of
the road without any indicators because of which, the
accident took place, the said suggestion was denied by the
PW2. Further, it was also suggested to PW2 that, they were
proceeding in the lorry as a gratuitous passengers which was
denied.
29. In cross examination conducted by the learned
counsel for the respondent No.2, PW2 stated that sand was
loaded at Byrakur and it was to be unloaded at Bangalore. He
admitted that, the accident took place on Bangalore-Kolar
NH-4 and it was 11.40 p.m. He failed to state width of the
road, but stated that there was foot path on both side of the
road. He also admitted that, the lorry bearing No.AP-02-Y-
2877 was stationed on tar road. The PW2 has stated that,
immediately after the accident, he lost the conscious and
regain his conscious, when he was in hospital. Further, it was
24 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
suggested to PW2 that, as the driver of the lorry bearing
No.AP-02-Y-2877 was parked his lorry without indication, the
accident was due to his negligence, the said suggestion was
denied.
30. The PW2 in his cross examination conducted by the
respondent No.5 admitted that, the place of accident and also
lodging of complaint by the driver of the lorry bearing No.AP-
02-Y-2877. The PW2 admitted that, their lorry bearing No.AP-
02-X-8288 first hit to a lorry bearing No.AP-04-TU-1380 and
thereafter hit to lorry bearing No.AP-02-Y-2877.
31. The PW1 in MVC 4890/2013 in her cross
examination stated that, on the day of accident, they
proceeded in the lorry to Kotilingeshwara Temple. But, she
further stated that, as the said day was first day of year 2013,
before proceeding to unload lorry, they went to
Kotilingeshwara Temple. The PW1 stated that, at the time of
accident, the lorry was loaded with the sand from Byrakur,
Mulbagal Taluk. She failed to state from whose land, the said
sand was loaded.
32. The learned counsel for the respondent No.1, who is
respondent No.3 in both the petitions has argued that, at the
25 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
time of accident, the petitioner and deceased were proceeding
as a gratuitous passengers in order to go to Kotilingeshwara
Temple and the lorry being goods vehicle, if they were shown
as passengers, they will not get compensation. Hence, a false
story has been created. Further, the learned counsel
submitted that, none of the witnesses have stated from whose
land, the sand was loaded and where it is to be unloaded and
as on the date of accident, the petitioner in MVC 4891/2013
was a minor. Hence, it cannot be believed that, a minor will
be unloader in the lorry. The learned counsel for the
respondent No.5 argued that, as per the police records, the
accident was due to rash and negligent driving of the driver of
the lorry bearing No.AP-02-X-8288 against whom the
jurisdictional police have filed charge sheet and there is no
pleading to the effect that, the driver of the lorry bearing
No.AP-02-Y-2877 parked his lorry without any indicators.
Hence, the accident took place due to the negligence on the
part of the driver of the lorry bearing No.AP-02-X-8288.
33. I have tested the above said arguments of both the
learned counsels. Though, the PW1 in her cross examination
conducted by the respondent No.1 admitted that, at the time
26 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
of accident, the lorry bearing No.AP-02-Y-2877 was stationed
in the middle of the road, without any indicators. But the
sketch marked at Ex.P4 clearly reveals that, on the left side of
the road, the said lorry was parked. It is to be noted that, in
the cross examination conducted by the respondent No.5, the
petitioners have admitted that, the lorry bearing No.AP-02-X-
8288 before hitting the lorry bearing No.AP-02-Y-2877, it hit
to another lorry bearing No.AP-04-TU-1380. When said
admission red along with sketch, it is quite clear that, in
between the offending lorry and lorry bearing No.AP-02-Y-
2877, there was another lorry bearing No.AP-04-TU-1380 was
parked. As per the complaint averments also before hitting to
lorry bearing No.AP-02-Y-2877, the offending lorry has hit to
lorry bearing No.AP-04-TU-1380 and it had sustained
damages as could be seen from IMV report.
34. It is to be noted that, in all these cases except the
officials of respondent insurance company none of the driver
of the vehicles were examined before the court. The driver of
the lorry bearing No.AP-02-X-8288 nor the driver of the lorry
bearing No.AP-02-Y-2877 were examined. They are the proper
persons to speak regarding the circumstances under which
27 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
the accident took place. The petitioners by stepping into the
witness box have discharged their initial burden. Now, the
onus to disprove the case of the petitioners is on the
respondents. But, except their officials, they have not
examined either of the drivers of the above said lorries. The
officials of the respondent insurance company are not an eye
witness to the accident. They deposed only on the basis of
available materials. Hence, their evidence cannot be believed.
35. As already I have stated that, the Ex.P4 sketch
makes it very clear that, the lorry bearing No.AP-02-Y-2877
and No.AP-04-TU-1380 stationed on the left side of the road.
Therefore, it cannot be believed that, the lorry bearing No.AP-
02-Y-2877 was parked in the middle of the road. It is also to
be noted that, before hitting to the lorry bearing No.AP-02-Y-
2877, the offending lorry hit to another lorry bearing No.AP-
04-TU-1380. Therefore, it can be safely come to the
conclusion that, there was no fault on the part of the driver of
the lorry bearing No.AP-02-Y-2877.
36. It is also to be noted that, as rightly contended by
the learned counsel for the respondent No.5, absolutely there
is no pleading with regard to the rash and negligent parking
28 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
of the vehicle by the driver of the lorry bearing No.AP-02-Y-
2877. Even in the evidence also they have not deposed
anything as to the negligence of the said driver. Hence, viewed
from any angle, it is crystal clear that, the accident was due
to rash and negligent driving of the driver of the lorry bearing
No.AP-02-X-8288. The spot mahazar also reveals that, in the
said accident apart from the above said lorry, the lorry
bearing No.AP-04-TU-1380 was also involved and sustained
damages. Therefore, I answer the issue No.1 in all the
petitions in the Affirmative.
ISSUE NO.2 IN MVC 1619/2013:
37. This issue is in respect of quantum of compensation
to be awarded to the petitioners and the liability to pay the
same.
38. The death of Smt. Sallamma @ Sarala in the
accident is not in dispute. The PW1 in MVC 1619/2013 has
produced the death intimation memo as per Ex.P4 which
reveals that, on 13-01-2013 at about 7.40 p.m., the death of
Smt. Sallamma @ Sarala was occurred due to the accidental
injuries. The inquest and postmortem report marked at Ex.P4
and Ex.P5 also reveals that, the death of Smt. Sallamma @
29 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Sarala was due to accidental injuries. The postmortem report
reveals that, apart from the other injuries, the deceased had
sustained injury on right foot, with loss of skin and sutured
wound on the middle of the head. The postmortem report
reveals that, the death was due to shock, due to the injury
sustained in the accident. The PW1 has not produced any
documents to show the age of the deceased as on the date of
accident. Hence, the postmortem report marked at Ex.P5 and
death intimation memo has to be relied in order to come to
the conclusion that, as on the date of death, the deceased
Smt. Sallamma @ Sarala was aged about 18 years.
39. There are no documents with regard to the income
and avocation of the deceased. The accident took place in the
year 2013. The deceased was aged about 18 years as on the
date of accident. Hence, having regard to the cost of living in
the year 2013, it is just and proper to take notional income at
Rs.7,000/- per month.
40. It is to be noted that as per the ruling of 2013 ACJ
1403 (Rajesh and others vs Rajbir Singh, the Hon'ble
Apex court discussed the ruling and Sarala Verma's case
30 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
and held that the future prospectus can be taken into
account, even where a person is not having any permanent
job. Therefore, even today, Rajesh and Sarala Verma's case
holds good. Therefore, the Hon'ble Apex court in the ruling
reported in 2013 ACJ 1403 (Rajesh and others vs Rajbir
Singh and others) held that, the future prospects should be
adopted even when the person is self employed or were
engaged on fixed wages. In para-11 and 12 of said judgment,
the Hon'ble Apex court discussed the principles laid down in
the Sarla Verma's case reported in 2009 ACJ 1298(SC) and
another ruling reported in 2012 ACJ 1428(SC) in Santhosh
Devi's case held that even when the person is self-employed
or at fixed wages, the future prospectus is to be considered.
The Apex court has held that 50% of the actual income of the
deceased have to be taken for the future prospectus below 40
years and 30% for the age group of 40-50 years and 15% for
the age group of 50-60 years is to be added as future
prospectus.
41. Further, in another rulings of Apex court reported in
Civil Appeal No.4497/2015 between Munnalal Jain and
31 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
another vs Vipin Kumar Sharma and others) held that the
age of the deceased should taken into account for applying
the proper multiplier.
42. In this case, the deceased was aged about 18 years
as on the date of accident. Hence, as per the above said
rulings, 50% of actual income is to be taken into account as
future prospectus. As per the petition, the parents and
husband of the deceased are shown as dependents. Hence,
1/3rd has to be deducted towards her personal expenses.
Hence, the following calculations:
(i) Notional income arrived at ...Rs.7000/-p.m.
(ii)50% of (i) above said income
to be added as future prospectus ...Rs.3500+7000/-=
...Rs.10,500/-p.m.
Less 1/3 deducted as personal
expenses of the deceased. ...Rs. 10,500-3,500-=
... Rs.7000/-x12x18=
Compensation after multiplier of 18
is applied ... Rs.15,12,000/-
The petitioners are entitled for the compensation of
Rs.15,12,000/-under the head loss of dependency.
43. The Apex Court, in the case reported in 2013 ACJ
5800 (Sanobanu Nazirbhai Mirza Vs. Ahmedbad Municipal
32 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Transport Service) and also in the recent judgment reported
in AIR 2014 SUPREME COURT 706 (Puttamma Vs. Narayana
Reddy) awarded Rs.1,00,000/- as compensation to the family
members (children and family members other than wife) for
loss of love and affection, deprivation of protection, social
security etc., and Rs.50,000/- as compensation to the widow
of the deceased for loss of love and affection, pains and
sufferings, loss of consortium, deprivation of protection, social
security etc., and Rs.10,000/- towards cost incurred on
account of funeral and ritual expenses. In this case, the
petitioner No.3 has lost company of the deceased. Hence, a
sum of Rs.1,00,000/- is awarded under the head loss of
consortium. If the deceased had been alive, she had
contributed her savings to the petitioners maintenance, due
to the sudden demise of the deceased, the petitioners have
lost the estate of the deceased. Hence, a sum of Rs.50,000/-
is awarded under head loss of estate. The petitioners have
lost the love and affection of the deceased. Hence, a sum of
Rs.1,00,000/- is awarded under head loss of love and
affection. There are no documents to show that, the actual
33 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
expenses incurred for funeral and other ceremonies. Hence, a
sum of Rs.25,000/- is awarded under head funeral expenses.
44. The PW1 has produced medical bills worth of
Rs.1,31,927/-. I have meticulously perused the said medical
bills, out of the said medical bills, the bill at serial No.10 of
Rs.5,000/-, bill at serial No.48 of Rs.10,000/- and bill at
serial No.58 of Rs.20,000/- are advance paid bills. Hence,
they are not taken into account. By excluding the said bills,
the petitioners are entitled for total amount of Rs.98,620/-
under the medical expenses.
45. The details of compensation I propose to award are
as under:
Sl.No. Head of Compensation Amount/Rs
1. Loss of dependency 15,12,000-00
2. Loss of consortium 1,00,000-00
3. Loss of estate 50,000-00
4. Loss of love and affection 1,00,000-00
5. Funeral Expenses 25,000-00
6. Medical expenses 98,620-00
Total 18,85,620-00
In all the Petitioners are entitled for compensation of
Rs.18,85,620/-.
34 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
ISSUE NO.2 IN MVC 1620/2013:
46. The PW2 being the petitioner in MVC 1620/2013
has deposed that, due to the accident, he has sustained
fracture of both bones of left leg and knee amputation of right
leg and also sustained injuries on the face, chest, fractural
wound over skin of left tibia. He has produced the wound
certificate marked at Ex.P34 which reveals that, the petitioner
has sustained injuries to the right leg and fracture of both
bones of left leg. The discharge summary of Bowring and lady
Curzon Hospital, Bangalore marked at Ex.P32 reveals that,
the petitioner's right leg below knee was amputated on 07-01-
2013 and he underwent surgery for fracture of both bones of
left leg. He was an inpatient in the said hospital from 02-01-
2013 to 07-03-2013. The PW3 was also examined, who has
stated that, the petitioner has sustained above said injuries
in the accident. As per Ex.P40, the date of birth of the
petitioner was 10-06-1993. As on the date of accident, the
petitioner was aged about 21 years. His right leg below knee
was amputated which could be seen from Ex.P43 photograph.
Hence, considering all these injuries and also the surgeries
35 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
underwent by the petitioner a sum of Rs.1,25,000/- is
awarded under the head pain and sufferings.
47. The discharge summary of Bowring and lady
Curzon Hospital, Bangalore marked at Ex.P32 reveals that,
the petitioner was an inpatient in the said hospital from 02-
01-2013 to 07-03-2013 for almost 65 days. During the said
period, the petitioner has to spent considerable amount on
his conveyance, attendant charges and nutritious food.
Considering the fact that, the petitioner was an inpatient for a
period of 65 days in the hospital, a sum of Rs.75,000/- is
awarded under the head attendant charges, extra nutritious
food and including conveyance charges.
48. The PW2 was an inpatient for almost 65 days in the
hospital. The PW2 has sustained fracture of both bones of left
leg and his right leg below knee was amputated. Hence,
atleast requires 8 months for PW2 to recover from the
accidental injuries. During the said period, the petitioner has
to loose his income. Hence, at the rate of Rs.7,000/- per
month for 8 months a sum of Rs.56,000/- is awarded under
the head loss of income during the laid up period.
36 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
49. The PW2 has produced medical bills worth of
Rs.36,474/- as per Ex.P37. He has also produced
prescriptions as per Ex.P38. I have carefully perused the
medical bills and prescriptions. The medical bills are in
accordance with the prescriptions. The total medical bills
claimed by the PW2 is Rs.36,474/-, out of the said medical
bills, the bills at serial No.50, 53, 35, 36 were not produced.
Further on careful perusal of the medical bills, the cost
incurred for paper publication of Rs.3,600/- is also included.
Hence, the said amount is not taken into account. When the
total medical bills are calculated, it comes to Rs.31,800/-
which is rounded up to Rs.32,000/- for which the petitioner
is entitled.
50. By examining PW3, the petitioner in MVC
1620/2013 tried to impress upon the court that, he has
sustained disability to the lower limb at 76%. In his cross
examination PW3 stated that, he was one of the member of
the doctors who treated the petitioner. He has produced
outpatient card at Ex.P44, 2 x-ray films at Ex.P45 and case
sheet at Ex.P46. PW3 admitted that, he has not obtained the
opinion of the doctor Manoj Kumar and his team mates who
37 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
treated the PW2 before assessing the disability. The PW3
stated that, the implants of the petitioner are in situ and he
needs another surgery for removal of implants and lower limb
prosthesis for right sided amputation. On perusal of evidence
of PW3, it is quite clear that, though PW3 has stated that, the
PW2 has sustained total disability of lower limb at 76%, but
he has not stated the whole body disability. Therefore, having
regard to the fact that, right leg below knee of the PW2 was
amputated and he has also sustained fracture of both bones
of left leg, it is just and necessary to take the whole body
disability at 40%.
51. As already I have discussed, the PW2 was aged
about 21 years at the time of accident. In the absence of any
materials with regard to the income of the PW2. The accident
took place in the year 2013, it is just and proper to take
notional income at Rs.7,000/- per month. The proper
multiplier applicable to the age of 21 years is 18. Due to 40%
disability, annual loss of income would be
Rs.7,000x40%=2,800x12=33,600/-p.a. If Rs.33,600/- is
multiplied by 18, it would be Rs.6,04,800/-. Hence, I hold
that the petitioner is entitled for the compensation of
38 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Rs.6,04,800/- under the head loss of future income due to
permanent disability.
52. The petitioner was aged about 21 years as on the
date of accident and he has sustained fracture of both bones
of left leg and his right leg below knee was amputated. He
might have suffered lot of pain, loss of amenities and comforts
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.75,000/- towards loss of amenities and
future happiness.
53. The artificial limb is to be inserted to the right leg of
the petitioner and he has to undergo surgery for removal of
implants which was inserted to the left leg. Hence,
considering all these facts a sum of Rs.1,00,000/- is awarded
for future medical expenses.
54. There are no grounds to award compensation under
any other heads. So the petitioner is entitled for the
compensation under these following heads:-
39 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
1 Pain and sufferings Rs. 1,25,000-00
2 Attendant charges, extra Rs. 75,000-00
nutritious food and
conveyance expenses
3 Medical expenses Rs. 32,000-00
4 Loss of income during laid Rs. 56,000-00
of period
5. Loss of future income due to Rs. 6,04,800-00
permanent disability
6. Loss of future amenities and Rs. 75,000-00
happiness
7. Future medical expenses Rs. 1,00,000-00
Total Rs.10,67,800-00
In total, the petitioner is entitled for the compensation of
Rs.10,67,800/-.
ISSUE NO.2 IN MVC 4890/2013:
55. The petitioner in MVC 4890/2013 has produced the
wound certificate and discharge summary as per Ex.P6 and
Ex.P7 of Brookefield Hospital which reveals that, she has
sustained multiple rib fracture of both sides, pelvic fracture
with fracture pubic ramus. Further, discharge summary
reveals that, she has sustained left medial condyle left elbow
fracture and extra peritoneal bladder injury. She was
underwent surgery for stabilization of pelvis with external
fixator and elbow cast for condyle fracture on 02-01-2013.
40 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Further, the discharge summary also reveals that, the total
cast was put for medial condyle fracture removed on 09-01-
2013. The petitioner was discharged with an advice of follow
up treatment. In the discharge summary, the date of
discharge was not mentioned. But, she has produced
duplicate copy of the bill as per Ex.P11 which reveals that,
she was an inpatient from 02-01-2013 to 17-02-2013. The
petitioner has not examined the doctor who treated her. But
wound certificate and discharge summary reveals that, she
has sustained 4 fractures in the accident. Hence, a sum of
Rs.75,000/- is awarded under the head pain and sufferings.
56. The petitioner was an inpatient from 02-01-2013 to
17-02-2013 for almost 47 days in Brookefield Hospital.
During the said period, the petitioner has to spent
considerable amount on her conveyance, attendant charges
and nutritious food. Considering the fact that, the petitioner
was an inpatient for a period of 47 days in the hospital, a
sum of Rs.30,000/- is awarded under the head attendant
charges, extra nutritious food and including conveyance
charges.
41 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
57. The petitioner has not produced any documents to
show her income. The statement of witnesses reveals that,
she was loader and unloader in the lorry bearing No.KA-02-X-
8288. As per wound certificate and discharge summary, the
petitioner was aged about 40 years at the time of accident.
The accident took place in the year 2013. Hence, her notional
income is taken at Rs.7,000/- per month. As I have already
stated that, the petitioner has sustained 4 fractures. Hence,
atleast requires 6 months for her to recover from the
accidental injuries. During the said period, the petitioner has
to loose her income. Hence, at the rate of Rs.7,000/- per
month for 6 months a sum of Rs.42,000/- is awarded under
the head loss of income during the laid up period.
58. The petitioner in MVC 4890/2013 has produced her
duplicate copy of final bill which reveals that, she has spent
Rs.2,29,000/- for her treatment. In the cross examination
PW1 has stated that, first respondent has collected the
original bill of Ex.P11 with receipts. It was suggested to PW1
that, Ex.P11 bill does not belongs to her which is denied. It is
also suggested that, Ex.P11 is created in order to claim higher
compensation which is also denied. I have carefully perused
42 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Ex.P11, though it is duplicate copy, but the hospital
authorities have put their seal and signature on the said bill.
As already I have discussed, the petitioner in MVC
4890/2013 has sustained 4 fractures and it cannot be ruled
out that, she has not spent an amount as shown in the
Ex.P11. Therefore, the petitioner is entitled for a sum of
Rs.2,29,000/- under the head of medical expenses.
59. The petitioner has not examined the doctor nor
proved that, she has sustained disability due to the
accidental injuries. There is no disability certificate on record.
Hence, no compensation is awarded under the head loss of
income due to disability.
60. The petitioner was aged about 40 years as on the
date of accident and she has sustained multiple rib fracture
of both sides, pelvic fracture with fracture pubic ramus, left
medial condyle left elbow fracture and extra peritoneal
bladder injury. She might have suffered lot of pain, loss of
amenities and comforts in life. Therefore, considering the age,
nature of injuries sustained by the petitioner, this tribunal is
of the opinion, that the petitioner is entitled for the
43 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
compensation of Rs.30,000/- towards loss of amenities and
future happiness.
61. The petitioner has not examined the doctor and
there is no evidence that, the petitioner requires treatment in
future. Hence, no compensation is awarded under the head
future medical expenses.
62. 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. 75,000-00
2 Attendant charges, extra Rs. 30,000-00
nutritious food and
conveyance expenses
3 Medical expenses Rs. 2,29,000-00
4 Loss of income during laid Rs. 42,000-00
of period
5. Loss of future income due to nil
permanent disability
6. Loss of future amenities and Rs. 30,000-00
happiness
7. Future medical expenses nil
Total Rs.4,06,000-00
In total, the petitioner is entitled for the compensation of
Rs.4,06,000/-.
44 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
ISSUE NO.2 IN MVC 4891/2013:
63. The petitioner in MVC 4891/2013 has produced the
wound certificate as per Ex.P9 which reveals that, she has
sustained lacerated wound of 20x10 cm present over the
middle 3rd of right thigh, tenderness over back of right upper
arm and fracture of proximal 1/3rd right radius. In the
opinion of the doctor, injury No.2 is grievous in nature and
injury No.1 is simple in nature. She has produced the
discharge summary of MVJ Hospital as per Ex.P10 which
reveals that, the petitioner underwent wound debridement on
02-01-2013 and ORIF with DCP on 07-01-2013 for the
fracture of proximal 1/3rd right radius. She was an inpatient
from 02-01-2013 to 19-01-2013 for a period of 17 days.
Hence, considering the facts a sum of Rs.40,000/- is
awarded under the head pain and sufferings.
64. The petitioner was an inpatient from 02-01-2013 to
19-01-2013 for a period of 17 days in MVJ Hospital. During
the said period, the petitioner has to spent considerable
amount on her conveyance, attendant charges and nutritious
food. Therefore, a sum of Rs.15,000/- is awarded under the
45 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
head attendant charges, extra nutritious food and including
conveyance charges.
65. As per the discharge summary and wound
certificate, the petitioner was aged about 16 years at the time
of accident. The learned counsel for the respondent No.1
relying upon the wound certificate has argued that, as on the
date of accident, the petitioner in MVC 4891/2013 was minor
and she has not filed the petition through her guardian. But
in the evidence, it is come that, she was married to one Mr.
Ravi and the said marriage took place 6 months back prior to
the accident. The petitioner in MVC 4890/2013 has deposed
on behalf of the petitioner in MVC 4891/2013. Hence, merely
because the petition has not been filed through natural
guardian of the petitioner in MVC 4891/2013, it cannot be
dismissed on mere technical ground. In the catena of
decisions, the Hon'ble High court held that, procedures is
hand maid of justice and strict adherence to the procedure is
not allowed especially when dealing with the petitions filed for
compensation under M.V. Act. Hence, merely the said petition
was not filed through natural guardian, it cannot be
dismissed. Moreover, the petitioner in MVC 4890/2013 being
46 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
the mother of the petitioner in MVC 4891/2013, she has
deposed on her behalf.
66. There is no document with respect to the income of
the petitioner in MVC 4891/2013. Having regard to the age of
the petitioner, it is just and fair to take her notional income at
Rs.7,000/- per month, as the accident took place in the year
2013. As already I have stated, that the petitioner has
sustained fracture of proximal 1/3rd right radius and deep
lacerated wound over anterior lateral aspect of right thigh
measuring 2x1 cm and she was underwent wound
debridement and ORIF with DCP. Hence, atleast a period of 4
months is required for the petitioner to recover from the said
injuries. During the said period, the petitioner has to loose
her income. Hence, at the rate of Rs.7,000/- per month for 4
months a sum of Rs.28,000/- is awarded under the head
loss of income during the laid up period.
67. The petitioner in MVC 4891/2013 has not produced
her medical bills. Hence, she is not entitled for the same.
68. The petitioner has not examined the doctor nor
proved that, she has sustained disability due to the
47 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
accidental injuries. There is no disability certificate on record.
Hence, no compensation is awarded under head loss of
income due to disability.
69. The petitioner was aged about 16 years as on the
date of accident and she has sustained fracture of proximal
1/3rd right radius and deep lacerated wound over anterior
lateral aspect of right thigh. She might have suffered lot of
pain, loss of amenities and comforts in life. Therefore,
considering the age, nature of injuries sustained by the
petitioner, this tribunal is of the opinion, that the petitioner is
entitled for the compensation of Rs.25,000/- towards loss of
amenities and future happiness.
70. The petitioner has not examined the doctor and
there is no evidence that, the petitioner requires treatment in
future. Hence, no compensation is awarded under the head
future medical expenses.
71. There are no grounds to award compensation under
any other heads. So the petitioner is entitled for the
compensation under these following heads:-
48 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
1 Pain and sufferings Rs. 40,000-00
2 Attendant charges, extra Rs. 15,000-00
nutritious food and
conveyance expenses
3 Medical expenses nil
4 Loss of income during laid Rs. 28,000-00
of period
5. Loss of future income due to nil
permanent disability
6. Loss of future amenities and Rs. 25,000-00
happiness
7. Future medical expenses nil
Total Rs.1,08,000-00
In total, the petitioner is entitled for the compensation of
Rs.1,08,000/-.
Interest:
72. 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) (Municipal Council of Delhi Vs.
49 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
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:
73. The official of respondent No.1 company was not
examined in MVC 4890/2013 and 4891/2013. The official of
the respondent No.5 company was examined as RW1, but in
MVC 1619/2013 and 1620/2013, the both officials of
respondents company were examined as RW1 and RW2. The
official of the Cholamandalam MS General Insurance
Company stated in his evidence that, the deceased and the
petitioners and other persons were proceeding in the goods
vehicle bearing No.AP-02-X-8288 as a gratuitous passengers
and as per the police documents, the said fact is confirmed
and accident was due to negligence on the part of the driver
of the lorry bearing No.AP-02-Y-2877. This court while
50 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
discussing issue No.1 has arrived at finding that, the accident
was due to rash and negligent driving of the driver of the lorry
bearing No.AP-02-X-8288. The RW1 has produced copy of
policy as per Ex.R1. RC book in respect of lorry bearing
No.AP-02-X-8288 as per Ex.R2, certified copy of judgment in
MVC 2790/2013 as per Ex.R3, award copy in the said case as
per Ex.R4, depositions in the said case as per Ex.R5. I have
carefully perused all these documents. Ex.R1 policy copy
reveals that, it is package policy. Ex.R2 reveals that, one Mr.
K. Narayana Swamy was the owner of the lorry bearing
No.AP-02-X-8288. The judgment in MVC 2790/2013 reveals
that, one Mr. Prem Kumar has filed the claim petition
claiming that, while he was proceeding in a lorry bearing
No.AP-02-Y-2877, he has sustained injuries. But, the Hon'ble
5th Addl. Small Causes Judge has come to the finding that,
the said petitioner was not proceeding in a lorry bearing
No.AP-02-Y-2877, but he was proceeding in a lorry bearing
No.AP-02-X-8288. Hence, the said court has dismissed the
petition filed by the said petitioner.
74. The RW1 during the course of cross examination
has stated that, under the Ex.R1 a premium of Rs.27,161/-
51 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
was paid and under the said premium, the risk of driver,
owner of the goods and the persons were representing the
goods were also covered under the policy. It was suggested
that, the loader and unloader were also covered under the
policy. It is also suggested that, as per Ex.R1, the
representatives of the goods and loader and unloader were
also covered which is denied. The RW1 admitted that, on the
date of accident, the lorry was proceeding towards Kolar from
Bangalore. RW1 stated that, as per their investigation report,
the sand was not being transported in the vehicle. But RW1
has clearly admitted that, the statement of the owner and
driver of the lorry was not recorded. RW1 admitted that, the
police after thorough investigation have filed charge sheet
against the lorry bearing No.AP-02-X-8288. In cross
examination by the learned counsel for the respondent No.2,
the RW1 stated that, as the witnesses have not given
statement in accordance with their statement. Hence, their
statement has not been recorded. The RW1 has admitted
that, there is no impediment for him to produce the
investigation report. The RW1 admitted that, under Ex.R1,
the driver is covered. It is admitted by the RW1 that, non
52 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
paying passengers and owner and the persons representing
the owner is also covered under the policy. It was suggested
that, 6 workers are covered under the policy which is denied.
75. Even though as per the evidence of RW1, he has
stated that on the date of accident, the lorry bearing No.AP-
02-X-8288 was not loaded with sand. But in the complaint it
has been clearly mentioned that, the said lorry was loaded
with the sand at the time of accident.
76. I have carefully perused the Ex.R1 policy copy which
is package police in respect of goods carrying vehicle. Under
the said policy a total premium of Rs.27,161/- was paid. As
per the said policy, the driver, non fair paying passengers,
owner, cleaner were covered under the policy. In the evidence
it has come that, there was no cleaner in lorry bearing No.AP-
02-X-8288. The driver of the said lorry has not filed the claim
for compensation. Since, as per Ex.R1 it is package policy and
at the time of accident, the petitioners and deceased were
proceeding as a loader and unloader, their risk is also covered
under the Ex.R1. This Tribunal has already come to the
conclusion that, the accident was due to sole negligence on
53 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
the part of the driver of the lorry bearing No.AP-02-X-8288.
The RW1 has not lead any evidence with regard to not having
permit or fitness certificate as on the date of accident. The
policy marked at Ex.R1 as on the date of accident was valid.
Hence, respondent No.1 and 2 in MVC 1619/2013 and
1620/2013, who is the respondent Nos.1 and 3 in MVC
4890/2013 and 4891/2013 are jointly and severally liable to
pay compensation to petitioners with interest at 9% p.a.
However, primary liability is fixed on the respondent No.1
insurance company in MVC 1619/2013 and 1620/2013, who
is the respondent No.3 in MVC 4890/2013 and 4891/2013.
The petitions against the respondent Nos.3 to 5 in MVC
1619/2013 and 1620/2013, who is the respondent Nos.2, 4
and 5 in MVC 4890/2013 and 4891/2013 are hereby
dismissed. Accordingly, I answer the issue No.2 in all the
petitions partly in the affirmative.
ISSUE No.3 IN ALL THE PETITIONS:-
77. In view of my above findings, all the petitions are
deserves to be partly allowed. Hence, I proceed to pass the
following:
54 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
ORDER
The petitions filed by the petitioners in MVC No.1619/2013 and 1620/2013 U/s.166 of MV Act as against the respondent Nos.1 and 2 are partly allowed with costs.
The petitions filed by the petitioners in MVC No.4890/2013 and 4891/2013 U/s.166 of MV Act as against the respondent Nos.1 and 3 are partly allowed with costs.
The petitions filed by the petitioners in MVC No.1619/2013 and 1620/2013 U/s.166 of MV Act as against the respondent Nos.3 to 5 is hereby dismissed.
The petitions filed by the petitioners in MVC No.4890/2013 and 4891/2013 U/s.166 of MV Act as against the respondent Nos.2, 4 and 5 is hereby dismissed.
The petitioners in MVC No.1619/2013 is awarded with the compensation of Rs.18,85,620/- (Rupees eighteen lakhs eighty five thousand six hundred and twenty only) with interest at 9% p.a. from the date of petition till its realization.
The petitioner in MVC No.1620/2013 is awarded with the compensation of Rs.10,67,800/- (Rupees ten lakhs sixty seven thousand and eight hundred only) with interest at 9% 55 (SCCH-16) MVC 1619/2013, 1620/2013, 4890/2013 & 4891/2013 p.a. (excluding future medical expenses of Rs.1,00,000/-) from the date of petition till its realization.
The petitioner in MVC No.4890/2013 is awarded with the compensation of Rs.4,06,000/- (Rupees four lakhs and six thousand only) with interest at 9% p.a. from the date of petition till its realization.
The petitioner in MVC No.4891/2013 is awarded with the compensation of Rs.1,08,000/- (Rupees one lakh and eight thousand only) with interest at 9% p.a. from the date of petition till its realization.
The respondents Nos.1 and 2 in MVC No.1619/2013 and 1620/2013 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 pay the compensation amount within two months from the date of this order.
The respondents Nos.1 and 3 in MVC No.4890/2013 and 4891/2013 are jointly and severally liable to pay the 56 (SCCH-16) MVC 1619/2013, 1620/2013, 4890/2013 & 4891/2013 award amount. However, the primary liability to pay the compensation amount is fixed on the respondent No.3 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is apportioned in MVC 1619/2013 as follows:-
Petitioner No.1-Father - 30%
Petitioner No.2-Mother - 30%
Petitioner No.3-Husband - 40%
Out of the compensation amount so apportioned in favour of the petitioner Nos.1 to 3 in MVC 1619/2013, 25% is ordered to be invested in the name of petitioner Nos.1 to 3 in any of the nationalized or scheduled bank of their choice for a period of 3 years. Remaining amount with entire interest is ordered to be released to them, through A/c payee cheques on proper identification and verification.
Out of the said compensation amount awarded in MVC 1620/2013, 25% of the compensation amount with proportionate interest shall be deposited in the name of the 57 (SCCH-16) MVC 1619/2013, 1620/2013, 4890/2013 & 4891/2013 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 75% amount with proportionate interest shall be released to the petitioner through A/c payee cheque on proper identification and verification.
Out of the said compensation amount awarded in MVC 4890/2013 and 4891/2013, 40% of the compensation amount with proportionate interest shall be deposited in the name of the petitioners 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 released to the petitioners through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-in each petition. Office to keep the original judgment in the file of MVC No.1619/2013 and copy of the same in the file of MVC No.1620/2013, 4890/2013 and 4891/2013. 58 (SCCH-16) MVC 1619/2013, 1620/2013, 4890/2013 & 4891/2013 Draw award accordingly in all the petitions. (Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open court on this the 19th day of July 2016) (SATISH.J.BALI) MEMBER:MACT, BANGALORE ANNEXURE List of the witnesses examined on behalf of Petitioners in MVC 1619/2013 and 1620/2013:
PW1 Sri Venkataramppa PW2 Sri Prasad PW3 Dr. Somashekar S.A.
List of the documents exhibited on behalf of Petitioners in MVC 1619/2013 and 1620/2013:
Ex.P1 True copy of Complaint
Ex.P2 True copy of FIR
Ex.P3 True copy of Spot mahazar
Ex.P4 True copy of Inquest mahazar
Ex.P4 True copy of Death intimation
Ex.P5 True copy of Postmortem report
Ex.P6 True copy of IMV report
Ex.P7 True copy of Seizer mahazar
Ex.P8 Certified copy of Statement of Neelamma
Ex.P9 Certified copy of Statement of Devi
59 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
Ex.P10 Certified copy of Statement of Sunda Ex.P11 Certified copy of Statement of Naresh Ex.P12 Certified copy of Statement of Premakumar Ex.P13 Certified copy of Statement of Prasad Ex.P14 Certified copy of Statement of Ravichandra Ex.P15 Reply to the notice U/s 133 of MV Act Ex.P16 Certified copy of Charge sheet Ex.P17 Certified copy of Order sheet in CC No.1086/2013 Ex.P18 6 Request for investigations Ex.P19 2 Cross Matching report Ex.P20 Outpatient record Ex.P21 Progress Note Ex.P22 Emergency case record Ex.P23 X-ray report Ex.P24 Document relating to Icon Hospital Ex.P25 3 Lab reports Ex.P26 68 Medical bills amounting to Rs.1,31,927/- Ex.P27 36 Medical prescriptions Ex.P28 Notarized attested true copy of Ration card Ex.P29 2 CT Scan films Ex.P30 Family tree Ex.P31 Document relating to Icon Hospital Ex.P32 Discharge and Identity card Ex.P33 Notarized attested true copy of Ration card Ex.P34 True copy of Wound certificate Ex.P35 Blood report Ex.P36 2 Cross matching report 60 (SCCH-16) MVC 1619/2013, 1620/2013, 4890/2013 & 4891/2013 Ex.P37 59 Medical bills amounting to Rs.36,474/- Ex.P38 14 Medical prescriptions Ex.P39 2 Bowring Hospital documents Ex.P40 Notarized attested true copy of SSLC Marks card Ex.P41 Notarized attested true copy of Election ID card Ex.P42 Notarized attested true copy of Aadhaar card Ex.P43 One photo with CD Ex.P44 Outpatient record Ex.P45 2 X-ray films Ex.P46 Case sheet List of the witnesses examined on behalf of Respondents in MVC 1619/2013 and 1620/2013:
RW1 Sri G. Suresh RW2 Sri G. Shivakumar
List of the documents marked on behalf of Respondents in MVC 1619/2013 and 1620/2013:
Ex.R1 Policy copy
Ex.R2 B Register Extract
Ex.R3 Certified copy of Judgment
Ex.R4 Certified copy of Award
Ex.R5 Certified copy of Deposition of Smt. Lakshmi in
MVC N.2790/2013
Ex.R6 True copy of Policy
List of the witnesses examined on behalf of Petitioners in
MVC 4890/2013 and 4891/2013:
PW1 Smt. Neelamma
61 (SCCH-16) MVC 1619/2013, 1620/2013,
4890/2013 & 4891/2013
List of the documents exhibited on behalf of Petitioners in MVC 4890/2013 and 4891/2013:
Ex.P1 True copy of FIR with Complaint Ex.P2 True copy of Requisition Ex.P3 True copy of Spot mahazar Ex.P4 True copy of Spot sketch Ex.P5 True copy of IMV report Ex.P6 True copy of Wound certificate Ex.P7 Discharge summary Ex.P8 True copy of Charge sheet Ex.P9 True copy of Wound certificate Ex.P10 Discharge summary Ex.P11 Duplicate IP Bill of Rs.2,29,000/-
List of the witnesses examined on behalf of Respondents in MVC 4890/2013 and 4891/2013:
RW1 Sri G. Shivakumar List of the documents marked on behalf of Respondents in MVC 4890/2013 and 4891/2013:
Ex.R1 Policy copy
(SATISH.J.BALI),
MEMBER, MACT BANGALORE.