Bangalore District Court
N.Swathi vs United India Insurance on 21 October, 2016
BEFORE THE MEMBER PRL.MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 21st DAY OF OCTOBER 2016
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C. No.543/2015
Petitioners: N.Swathi,
D/o V.Narayanaswamy,
Age: 17 years,
R/a:No.54, "Gollara Beedi",
Near Anganavadi Sishu,
Vihara Kendra, A Kattigenahalli,
Behind Sai Medals Apartment,
Yelahanka, Bangalore North.
Petitioner being minor
Represented by his father
V.Narayanaswamy,
S/o Venkataramappa,
Age: 42 years.
(By Sri I.T.R., Advocate )
- V/s -
Respondents: 1. United India Insurance
Co.Ltd.,
R.O.Krishi Bhavan,
6th floor, Nreepathunga Road,
Near Hudson Circle,
Bangalore -07.
SCCH-1 2 M.V.C.NO.543/2015
Policy issued by its branch
Office at No.305,
ATCHAM, Mansion Southern
Extension, Kollegal,
Chamarajnagar - 571440.
In policy
No.0720023114P100249062
Date of validity from 11.4.2014
to 10.4.2015
Tanker Lorry bearing
No.KA-10-7943.
(By Sri D.N.M.G., Advocate)
2. Mrs. Geethanjali S. Shetty,
W/o Sunil M. Shetty,
Major, R/at No.1203,
12th B Cross, 1st Stage,
Vijayanagar, Mysore - 570017.
(By Sri J., Advocate)
3. Sri Srinivasa Fuel Station,
Proprietor: Babu,
No.395, RS Doddi Main road,
Hanur, Kollegala Taluk,
Chamarajanagar Dist - 571439
(By Sri H.K.R., Advocate)
JUDGMENT
The guardian of the minor petitioner has filed this petition under Section 166 of the of the Motor Vehicles SCCH-1 3 M.V.C.NO.543/2015 Act, 1989 seeking compensation of Rs.50,00,000/- for the injuries sustained by the minor petitioner in the road traffic accident.
2. Brief facts of the case are that:-
It is the case of the guardian of the minor petitioner that on 18.10.2014 at about 8.30 p.m. he was riding the motor cycle along with his daughters near Bangalore Bellary main road, at that time, the driver of a Tanker Lorry bearing Reg. No.KA-10-7943 came in high speed in a rash and negligent manner and dashed against the petitioner's motor cycle. As a result of the same, his elder daughter fell down and sustained grievous injuries all over the body.
3. Immediately after the accident, minor petitioner was shifted to Apoorva hospital, wherein first aid treatment was given to her and then shifted to Columbia Asia hospital and from there injured was shifted to SCCH-1 4 M.V.C.NO.543/2015 Ramaiah Hospital wherein she was treated as an inpatient and the doctors diagnosed that the minor petitioner has sustained grievous injuries like multiple abrasion over left leg region and she underwent amputation of the entire left limb.
4. It is the further case of the minor petitioner that she was bed ridden and was under treatment and guardian of the petitioner has spent nearly Rs.10,00,000/- towards medical and nourishment expenses. She has suffered permanent disability and doctor had advised him to undertake further treatment and he has to incur future medical expenses. Due to the accidental injuries petitioner is not able to lead a normal life as she was doing prior to the accident and she was a brilliant rank student and was a topper in her SSLC exam. The accident occurred due to the rash and negligent driving of the driver of the offending Tanker Lorry bearing Reg. No.KA-10-7943. Respondent No.1 SCCH-1 5 M.V.C.NO.543/2015 being the insurer and respondent Nos.2 and 3 being the owners of Tanker lorry are jointly and severally liable to pay compensation to the petitioner.
5. In pursuance of the filing of this petition, this Court has issued notice against all the respondents and they have appeared before the Court through their respective counsels.
The first respondent has filed written statement denying the petition averments. This respondent has contended that the petition filed by the petitioner is not maintainable for non-joinder and mis-joinder of necessary parties, as the insurer and insured of the motor cycle are not made as parties to the petition. It is further contended that the second respondent owner has not complied the statutory obligation under section 134(c) of M.V.Act and the concerned police have not complied the provisions of section 158 (6) of M.V.Act. SCCH-1 6 M.V.C.NO.543/2015
6. It is the case of the respondent that the tanker Lorry bearing Reg. No.KA-10-7943 was not insured with this respondent from 11.04.2014 to 10.04.2015 and the liability if any is subject to the terms and conditions of the policy and possession of valid and effective driving licence, permit, F.C. as on the date of accident. The compensation claimed by the petitioner is exorbitant, excessive, unreasonable and imaginary. This respondent has denied the date, time and mode of accident, age , avocation and income of the petitioner, injuries sustained by the petitioner , expenses incurred by the guardian of the petitioner. It is further contended that this respondent reserves his right to amend its statement of objection and also to take over the defence of the insured in the event of the owner does not contest the proceedings under section 170 of M.V.Act. Hence, prays to dismiss the petition.
SCCH-1 7 M.V.C.NO.543/2015
7. The second respondent has filed written statement denying the petition averments. It is further contended that the petitioner was riding the motor cycle along with his daughters Kumari Sanjana, Kumari Swathi and the minor petitioner. It is further contended that the petitioner's father was riding the motor cycle bearing No. KA-04-EL-8111, along with the minor petitioner towards Yelahanka, at that time a tanker lorry bearing No. KA-10-7943was coming from Bangalore towards Yelahanka is leading to many doubts. Because the rider of the motor cycle and the driver of the lorry both are driving towards Yelahanka and how it is possible to dash against petitioner's motor cycle if they are ridding their vehicles towards Yelahanka and it should have dashed towards back side of the motor cycle. This clearly shows that the accident was not taken place by the negligence of the driver of the canter lorry bearing No. KA-10-7943 and the lorry was fully loaded and it was SCCH-1 8 M.V.C.NO.543/2015 going towards upper side from the down side and the negligence is purely on the part of the rider of the motor cycle. Hence, prays to dismiss the petition.
8. Based on the pleadings this Court has framed the following:-
ISSUES
1. Whether the petitioner proves that she sustained grievous injuries in a Motor Vehicle Accident that that occurred on 18-10-2014 at about 8.30 p.m, Near Bypass BB Road, Yelahanka, within the jurisdiction of Yelahanka Police Station on account of rash and negligent driving of the Tanker Lorry bearing registration No.KA-10-7943 by its driver?
2. Whether the Respondent no.2 proves that the accident occurred on account of negligence act of the Petitioner?
3. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4. What order?SCCH-1 9 M.V.C.NO.543/2015
9. The guardian of the minor petitioner is examined as PW1 and one withess is examined as PW-2 and has got marked documents Ex.P.1 to 18. On the other hand, the respondents have examined three witnesses as RW-1 to 3 and got marked documents Ex.R.1 to 10.
9. No representation on both the sides and has taken no arguments.
10. After hearing the arguments, based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1) Issue No.1 ... In the Affirmative,
2) Issue No.2 ... In the negative
3) Issue No.3 ... Partly in the Affirmative,
4) Issue No.4 ... As per final order
for the following:
REASONS
11. Issue No.1 and 2 : These two issues are inter- connected to each other and taken up together for discussion in order to avoid repetition. SCCH-1 10 M.V.C.NO.543/2015
It is the case of the guardian of the minor petitioner that on 18.10.2014 at about 8.30 p.m. he was riding the motor cycle along with his daughters near Bangalore Bellary main road, at that time, the driver of a Tanker Lorry bearing Reg. No.KA-10-7943 came in high speed in a rash and negligent manner and dashed against his motor cycle. As a result of the same, his elder daughter fell down and sustained grievous injuries all over the body. On the other hand, respondent NO.2 insurance company in the written statement has taken the defence that the accident was occurred on account of the negligent act of the rider of the motor cycle .
12. It is contention of the guardian of the minor petitioner that the accident was occurred due to the rash and negligent driving of the driver of the tanker lorry bearing No. KA-10-7943. In order to prove the same, the guardian of the petitioner has also relied upon FIR, charge sheet, sketch, mahazar , IMV report as per Ex.P.1 SCCH-1 11 M.V.C.NO.543/2015 to 5. The PW1 was subjected to cross-examination. In the cross-examination, it is elicited that the vehicle bearing no. KA-04-El-8111 belongs to him and the same is insured but he does not remember the company. He admits he is having driving licence. It is also elicited that on the date of the accident himself, his elder daughter and younger daughter were proceeding and both the daughters were minor and they were proceeding in Bellary road from Bangalore city to his residence and there will be moderate traffic in the said road. It is suggested that, there is a signal near the place of the accident and the said suggestion was denied. It is admitted that the milk tanker was also proceeding in the same direction. It is suggested that, the accident was taken place in the middle of the road and the same was denied. It is suggested that he lost the balance and hence the accident was occurred and the said suggestion was denied. It is suggested that the accident was not SCCH-1 12 M.V.C.NO.543/2015 occurred due to negligence on the part of the driver of the milk tanker and the said suggestion was denied. It is also suggested that there was no insurance to his vehicle and hence in collusion with the police falsely implicated the milk tanker and the said suggestion was denied. It is further suggested that, he is falsely deposing before the Court that a milk tanker passed over on the leg of his elder daughter and the same is denied. It is also elicited that police came to hospital and at that time, he gave written complaint.
13. On the other hand, respondents have examined Administrative Officer as RW-1 and she has reiterated the averments of the objection statement in the affidavit evidence. In the affidavit it is sworn to that the motor cycle was driven by a non-licencee and he was not having valid and effective driving licence. Further contended that petitioner's father was riding motor cycle in a rash and negligent manner and due to his negligence he lost the SCCH-1 13 M.V.C.NO.543/2015 control and he caused the accident. She was subjected to cross-examination. It is elicited that the police have not invoked Penal provision with regard to the valid driving licence while filing the charge sheet.
14. The petitioners have also examined the IMV Inspector and also R.T.O. and these witnesses are not in respect of negligence.
15. Now, let me appreciate the oral and documentary evidence available on record. It is important to note that the respondent No.2 though taken the defence that the accident was taken place on account of the negligent act of the father of the petitioner, they have not examined the driver of the tanker lorry and RW- 1 is not the eye witness to the accident and she gave the evidence only based on the Police records. Nothing is elicited in the cross-examination of PW-1 with regard to negligence except suggesting that the accident was taken place in the middle of the road and he lost the balance SCCH-1 14 M.V.C.NO.543/2015 and hence, the accident was occurred and these suggestions are categorically denied. I have already pointed out that the right person to speak with regard to the negligence is driver of the tanker and there is no rebuttal evidence as against the evidence of PW-1 and petitioner also relied upon FIR and charge sheet which are marked at Ex.P.1 and 2. On perusal of the FIR, in the complaint itself, PW-1 has made an allegation that tanker lorry which came on the right side of his motor cycle dashed against his motor cycle, as a result, they fell down on the left side front wheel of the tanker lorry and wheel of the tanker lorry passed over the left leg of his daughter. It is important to note that the accident was occurred on 18.10.2014 at 20.30 hours and complaint was given on the same day, immediately within one hour i.e, at 21.30 hours and there is no chances of lodging the complaint after thought and Police have investigated the matter and filed charge sheet against the driver of the SCCH-1 15 M.V.C.NO.543/2015 tanker lorry in terms of Ex.P.2. Ex.P.3 sketch clearly discloses that the tanker lorry which came on the right side of the motor cycle came towards extreme left side and the motor cycle was proceeding in the very same direction and the width of the road is around 40 feet and there was a 30 feet road on the right side of motor cyclist and the tanker lorry driver instead of proceeding in the straight direction he came to extreme side of the road and Ex.P.3 sketch has not been disputed in the cross- examination of PW-1. IMV report which is marked at Ex.P.5 also discloses that TVS Victor motor cycle sustained the following damages:
1. Handle, left rear view mirror doom, front left foot rest, saree guard, petrol tank, chassis, crash guarddamaged.
Milk Tanker lorry not found fresh visible damages. It is important to note that there is no dispute with regard to involvement of the vehicle in the accident and motor cycle is a lighter vehicle compared to tanker lorry SCCH-1 16 M.V.C.NO.543/2015 and naturally motor cycle will sustain more damages. For having taken note of the documentary evidence Ex.P.1 to 3 and 5, these materials goes against the driver of the tanker lorry and RW-1 has given evidence based on the Police records. In the absence of any contra evidence, this Court has to accept the evidence of PW1. The right person to speak about the contributory negligence is the driver of the tanker lorry and he has not been examined. In order to consider the contributory negligence there must be cogent evidence as held in (2014 Kant.M.A.C. 330 (SC) ( Meera Devi and another )-No cogent evidence to prove plea of contributory negligence, doctrine of common law cannot be applied.. Hence, I answer issue No.1 in the affirmative and issue NO.2 in the negative.
16. ISSUE No.3: It is the contention of the PW-1 that his daughter has sustained injuries in the road traffic accident . In order to substantiate his contention SCCH-1 17 M.V.C.NO.543/2015 he has produced wound certificate at Ex.P.6 which discloses that minor petitioner has sustained multiple abrasions over left leg region, sutured wound over left thigh region, popriteal artery, posterior tibial artery, anterior tibial artery, dorsal artery, amputation of left limb. Doctor has opined that the injury is grievous in nature. Discharge summary discloses petitioner has sustained Post RTA left lower limb acute limb ischemia with degloving injury. It further discloses the petitioner was inpatient from 19.10.2014 to 06.12.2014 i.e., for a period of 49 days. The guardian of the minor petitioner is examined as PW-1 and in the cross-examination, it is suggested that he is deposing falsely before the Court that a milk tanker passed over on the leg of his elder daughter and the said suggestion was denied. It is further suggested that his daughter was not admitted in Ramaiah hospital and her leg was not amputated in accidental injuries and these suggestions were denied. SCCH-1 18 M.V.C.NO.543/2015 Discharge summary discloses that minor petitioner underwent amputation of her left leg and also under went several surgeries on different dates and wound debridement on 22.10.2014, 23.10.14. For having taken note of the injuries sustained by the petitioner, treatment taken by her and her left leg was amputated, I award a sum of Rs.60,000/- towards pain and sufferings.
17. The PW-1 has examined the doctor as PW-2 and he states in his affidavit evidence that the petitioner has sustained left lower limb acute limb Ischemia with degloving injury. She was immediately resuscitated and C.T. Angiogram was done. She had been operated several times as per discharge summary. She was taken up immediately by Vascular Surgerons for vascular repair and following operations were performed. On 19.10.2014 left transpopliteal P1 proximal and distal thrombectomy of transected popliteal and distal SFA with primary veins repair was done. Again left above knee SCCH-1 19 M.V.C.NO.543/2015 amputation with elevation of skin and muscle flap was done. On 22.10.2014 wound debridement and above knee plaster and Vac dressing was done. On 23.10.2014 wound debridement and subcutaneous pedicle flap transfer and above knee plaster was done. On 25.11.14 wound debridement and subcutaneous pedicle flap transfer and above knee plaster was done, on 05.11.2014 wound debridement and skin grafting and above knee plaster was done, on 10.11.2014 wound debridement and skin grafting and above knee plaster was done. He further says patient was treated by above knee amputation in view of rising CPK and non-availability muscles and poor distal run off and she was under ICU on ventilator support and in post OP period she developed ARDS. Wound was regularly dressed and in view of muscle necrosis the patient under went staged debridement . Blood and blood product transfusions and 43 units were transfused in view of extensive blood loss SCCH-1 20 M.V.C.NO.543/2015 and tissue medical care till she was discharged. The stump length from the groin is 16 cms. There bone projecting out on the lateral side. 8 c.m. scar mark on the iliac crest is seen. Donor skin marks on the right thigh are seen. The disability is assessed is 80% to left lower limb. He further says she has her bone protruding on one side of her soft tissues of the stump for which she will require a better end weight bearing stump i.e., she will require another revision amputation surgery which will cost approximately Rs.75,000/- to Rs.1,00,000/- in this hospital. He was subjected to cross-examination. In the cross-examination, it is elicited that he has treated the patient personally. He further admits that the patient was operated in the vascular surgery department and plastic surgery department. Dr. Sanjay Desai, Dr. Uday Shankar and other doctors have conducted the surgery. He admits that the patient has taken the follow up treatment at Plastic surgery department. It is suggested SCCH-1 21 M.V.C.NO.543/2015 that the patient was not subjected to any skin grafting and plastic surgery and the said suggestion was denied. It is suggested that the amputation is not on account of the accidental injuries and the same was denied. It is elicited that based on the Government India gazette notification he assessed the disability 80% to left lower limb. He admits that he has not stated the whole body disability. It is suggested that, petitioner is not having 80% disability to the left lower limb and the said suggestion was denied. It is suggested that petitioner is not in need of one more surgery costing of Rs.75,000/- to Rs.1,00,000/- and the same was denied. He says he has not given any estimation. It is suggested that 1/3rd has to be taken while assessing the disability and the said suggestion was denied. It is suggested that in order to help the petitioner, he is falsely deposing before the Court that it costs Rs.75,000/- to Rs.1,00,000/- and the said suggestion was denied. It is also suggested that in SCCH-1 22 M.V.C.NO.543/2015 order to help the petitioner, he is giving false evidence before the Court and the same was denied.
18. Now let me appreciate both the oral and documentary evidence available before the Court regarding disability is concerned. It has to be noted that in case of amputation above knee, even as per gazette notification disability is 80% and there is no dispute with regard to the said fact. The photographs which are produced before the Court at Ex.P.14 and 15 clearly discloses that amputation below hip. Doctor in his evidence he says petitioner has her bone protruding on one side of her soft tissues of the stump for which she will require a better end weight bearing stump. The stump length from the groin is 16 cms and there is bone projecting out on the lateral side 8 c.m. scar mark on the iliac crest is seen. Hence, I do not find any exorbitant SCCH-1 23 M.V.C.NO.543/2015 assessment of the disability by taking into note of the amputation at the level which was amputated.
19. It is important to note that petitioner is a minor who is aged 17 years and she was a student in I year P.U.C. and the certificate produced before the Court which is marked as Ex.P.10 confirms that she was a student of I year P.U.C. In the cross-examination, it is elicited that now she is studying in II P.U.C. and not lost academic year. Taking into note of the fact that petitioner is a student of Ist P.U.C. and aged about 17 years, this Court has to take the notional income of the petitioner for calculation of future loss of income due to disability. The petitioner was almost in the verge of completion of her age of minority, hence, I am of the opinion that in order to give justice to the victim this Court would take her notional income at Rs.7,000/p.m. At the same time this Court also has to take note of the nature of the injuries sustained by her and amputation and she has to SCCH-1 24 M.V.C.NO.543/2015 led rest of her life with the disability of 80% that too she lost almost entire left leg, hence, in view of the judgment of Apex Court reported in 2014 ACJ 627 (Syed Sqdiq and Others Vs. Divisional Manager, United India Insurance Co., Ltd.,) the Hon'ble Supreme Court of India assessed the income at Rs.6,500/- per month for a vegetable vendor and assessed the permanent functional disability at 85% and added 50% income for future prospects and also awarded compensation on other heads such as cost of artificial leg, for pain and suffering, for loss of expectation of life, loss of amenities in life, for medical and incidental expenses and litigation costs.
It is also held in the judgment reported in 2014 ACJ 653 (Sanjay Kumar Vs. Ashok Kumar and others) wherein it is held that :
Amputation of right leg above knee-injured was hospitalized for 46 days and remained under treatment for 3 months -injured an embroiderer, earning Rs.4,500/p.m. SCCH-1 25 M.V.C.NO.543/2015 and as per entry 18, Par II, Schedule I of Workmen's Compensation Act, suffered 70 percent loss of earning capacity-Tribunal taking into consideration minimum wages for unskilled worker assessed income at Rs.3,166/p.m. , adopted multiplier of 16 and awarded Rs.4,83,472/-.
High Court adopted multiplier of 18 and enhanced the award to Rs.6,35,808/-. Apex Court taking into consideration that injured was a skilled worker, accepted his claim of income of Rs.4,500/p.m. allowed 50 percent increase for future prospects , took loss of earning capacity at 70 percent, adopted multiplier of 18 and allowed Rs.10,20,600/- plus Rs.13,500/- for loss of income during treatment, Rs.75,000/- for medical expenses, attendant and conveyance, Rs.75,000/- for loss of marriage prospects, Rs.1,50,000/- for mental agony and pain and suffering , Rs.1,00,000/- for loss of amenities and Rs.25,000/- as cost of litigation.
Award of Rs.6,35,808/- was enhanced to Rs.14,59,100/-.
In the case on hand, the notional income of the petitioner is taken as Rs.6,000/- per month. In the judgment referred supra, the Apex Court has allowed SCCH-1 26 M.V.C.NO.543/2015 50% of income for future prospects. Thus, the total income of petitioner works out to Rs.9,000/-. This Court has taken the disability suffered by the petitioner at 80%. The petitioner has stated his age as 17 years in the petition and the medical records disclose the age of the petitioner as 17 years and the appropriate multiplier applicable is 18. Hence, the petitioner is entitled for compensation under the head of loss of earning due to disability as : Rs.9000x12x18x80/100 = Rs.15,55,200/. Hence, I award Rs.15,55,200/- towards loss of earning due to disability.
20. The petitioner is girl aged about 17 years and on account of amputation of the leg and there is loss of marriage prospectus in her life and the respondents have contended that there is no loss of marriage prospectus of petitioner. As the petitioner is aged about 17 years and just she is in the verge of attaining majority and she has to live only with one leg through out her life. Hence, SCCH-1 27 M.V.C.NO.543/2015 considering the above circumstances, I award Rs.75,000/- towards loss of marriage prospectus of petitioner.
21. As I have already pointed out, petitioner is only 17 years old and she has to lead rest of her life with one leg and with 80% disability and hence, I award compensation of Rs.50,000/- towards loss of amenities which is just and reasonable.
22. The petitioner has produced discharge summary at Ex.P.7 which discloses he was inpatient from 19.10.2014 to 06.12.2014 for a period of 49 days and during that period the he might have spent some amount towards food, nourishment, conveyance etc. Hence, I award Rs.40,000/- towards food and nourishment, conveyance, attendant charges and other incidental charges.
SCCH-1 28 M.V.C.NO.543/2015
23. It is also the claim of the petitioner that he has applied for leave for a period of 2 months and he could not attend his duty for a period of 2 months and he also produced document Ex.P.11 and 12 to substantiate his claim that he was getting salary of Rs.32,243/-p.m. in terms of Ex.P.11 and leave certificate which is marked as Ex.P.12 discloses that the father of the petitioner had availed leave on average pay from 20.10.2014 to 18.11.2014 for a period of 30 days. He also availed sick leave (commuted leave) from 19.11.2014 to 16.12.2014 , though it is mentioned as 56 days, it is only 27 days. In all he was on leave for a period of 57 days. Hence, he has suffered loss of income. In the cross-examination, he says he lost leave for a period of 2 months on account of this accident. It is suggested that Ex.P.11 and 12 are created to get more compensation and the said suggestion was denied. It is emerged in the evidence that he was working in Rail Wheel Factory (Tyre Wheel SCCH-1 29 M.V.C.NO.543/2015 Factory) as a permanent employee and when he was on leave automatically he will loose the encashment for a period of leave period. For having taken note of the Ex.P.11 salary certificate and Ex.P.12 leave letter, he was on leave for a period of 57 days. It has to be noted that the Apex Court in the Judgment 2013 ACJ 2445 (Mallikarjuna Vs. Divisional Manager, National Insurance Co. Ltd., and another)has held that if the accident victim is minor the Court has to take note of the loss of income of the parents during the said period. Hence, I award a sum of Rs.50,000/- towards loss of income of the father of the petitioner during the period of taking care of the minor petitioner.
24. The doctor who is examined as PW-2 has contended that petitioner has her bone protruding on one side of her soft tissues of the stump for which she will require a better end weight being stump, hence, she SCCH-1 30 M.V.C.NO.543/2015 requires another revision amputation surgery which will cost approximately Rs.75,000/- to Rs.1,00,000/-. In the cross-examination, PW-2 admits that he has not given any estimation but he denied the suggestion that petitioner is not in need of one more surgery. For having taken note of the requirement of one more surgery and PW-2 has not given any estimation, I award a sum of Rs.50,000/- towards cost of future surgery which is just and reasonable compensation.
25. The petitioner also relied upon the document Ex.P.8, in which Dr.Uday Shankar of M.S.Ramaiah Memorial Hospital has stated that the petitioner cannot walk, her life will be almost confined to the wheel chair, therefore, she needs very good prosthesis which will make her to walk like near normal. Such prosthesis not available in Indian Companies, Ottobock imports good prosthesis from Germany. Ex.P.9 is issued by Ottobock Health Care India which discloses the cost of artificial SCCH-1 31 M.V.C.NO.543/2015 limb at Rs.7,41,330/-. It has to be noted that the author of the document Ex.P.9 is not examined before the Court and the evidence of the doctor says that petitioner requires the stump length from the groin is 16 cms and bone projecting out on the lateral side is 8 c.m. scar mark on the iliac crest is also seen. Photographs produced at Ex.P.14 and 15 clearly discloses the amputation is below the hip. Under the circumstance, for having taken note of the nature of amputation and cost of the artificial limb which has been issued by approved company Ottobock, though it claims Rs.7,41,330/- and in the absence of proof, I am of the opinion that an amount of Rs.3,00,000/- can be awarded for artificial limb for the reason that the cost of artificial limb varies from company to company from Rs.2 lacks to Rs.7,50,000/-. Hence, I award Rs.3,00,000/- towards cost of artificial limb.
SCCH-1 32 M.V.C.NO.543/2015
26. The petitioner has produced medical bills to the tune of Rs.29,539/- at Ex.P.13. In the cross-examination of PW-1, it is not correct to suggest that he is falsely claiming that he had spent an amount of Rs.10,00,000/- for medication and other incidental expenses and the said suggestion was denied. He admits that Ex.P.13 is carbon copy and he got the medical reimbursement to the tune of Rs.2,98,000/-. It is suggested that the bills which he has produced were also reimbursed and the same is denied. He also admits that Ex.P.13 original is produced to his department. He admits that he has produced advance receipt also. Witness again says Ex.P.13 is not reimbursed. He admits Ex.p.13 does not bears the signature. It is suggested that, Ex.P.13 is also included in the total amount of Rs.2,98,000/- and the said suggestion was denied. It is important to note that the bills which are produced before the Court are the bills issued by M.S.R. hospital dated 01.12.2014 to the SCCH-1 33 M.V.C.NO.543/2015 tune of Rs.18,317/- and this bills is issued during the period of hospitalization and when this bill is issue during the period of hospitalization, I am of the opinion that the same will be included in the original bill of final bill. It is also elicited in the cross-examination that the petitioner also produced advance receipt voucher and receipt is also for Rs.15,317/- and Rs.3000/- and these bills cannot be taken into consideration as it is included in the final bill. However, the petitioner has produced the original bill dated 19.1.2015 and 23.2.2015 and these bills are subsequent to the discharge from the M.S.Ramaiah hospital and another bill amounting to Rs.2,590/- is in respect of Gokula Metropolis Clinical Laboratories and the same is dated 19.10.2014 and it appears same was done on the date of admission at the initial stage and these bills can be taken into consideration and one more product was purchased above stump support with waist for an amount of SCCH-1 34 M.V.C.NO.543/2015 Rs.4,220/- and this amount can be taken into consideration. Hence, I have considered those bills to the tune of Rs.29,539/- and the same is rounded off to Rs.29,600/-. Hence, I award Rs.29,600/- towards Medical expenses.
27. Petitioner also made a claim with regard to the change of socket annually amounting to Rs.15,000/- to Rs.20,000/-. In the cross-examination of PW-1 it is suggested that he is falsely claiming that an amount of Rs.15,000/- to Rs.20,000/- is required annually for socket change and the said suggestion is denied. Doctor also stated the same in his evidence. For having taken note of the providing of artificial limb and it may require change of socket, I award a sum of Rs.40,000/- towards change of socket throughout her life time.
28. The details of compensation, I propose to award are as under:
SCCH-1 35 M.V.C.NO.543/2015
Sl. Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 60,000-00
2. Medical expenses Rs. 29,600-00
3. Food and nourishment, Rs. 40,000-00
conveyance , attendant
charges and other incidental
expenses
4. Loss of future earning due to Rs. 15,55,200-00
permanent disability
5. Loss of amenities Rs. 50,000-00
6. Loss of marriage prospects Rs. 75,000-00
7. Loss of income of the father Rs. 50,000-00
during the period of
treatment of the minor
petitioner
8. For purchase of artificial limb Rs. 3,00,000-00
9. Future surgery Rs. 50,000-00
10. Change of Socket throughout Rs. 40,000-00
her life
Total Rs. 22,49,800-00
29. In all the petitioner is entitled for
Rs.22,49,800/-. But the petitioner is not entitled for SCCH-1 36 M.V.C.NO.543/2015 interest on Rs.3,90,000/- as the same is awarded under the head of future medical expenses like purchase of artificial limb, future surgery, change of socket throughout her life.
30. 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. 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 SCCH-1 37 M.V.C.NO.543/2015 account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
31. Regarding liability is concerned, the petitioner has contended that the permit was valid as on the date of accident and the same is valid till 2018 and the petitioner counsel also produced copy of the permit along with written arguments. In the arguments also he has reiterated the same. On the other hand, the respondent insurance company has contended that here was no valid permit as on the date of accident. Further contended that though permit was issued earlier and the same was cancelled prior to the date of accident subsequent to the accident and subsequent to the accident only permit was taken by the owner. There is no dispute with regard to the fact of sale of vehicle. The respondent counsel has SCCH-1 38 M.V.C.NO.543/2015 also relied upon the judgment reported in ACJ 2009 2440 ( Thara Vs.Syamala) wherein it is held that goods carriage can be used on the road only after obtaining the permit and the use of vehicle without fitness certificate or permit will entitle the insurance company to avoid its liability under the policy.
The Counsel also relied upon the judgment of Apex Court reported in T.A.C.4(S.C.) . In this judgment the Apex Court held that:
Permit to ply liability of Insurance Company-
Insurer pleaded that insured had not obtained permit to ply autorickshaw and denied its liability-Tribunal accepted plea of insurer whereas High Court was justified in holding the insurer liable and Apex Court in the judgment held that considering the beneficial object of the Act, insurer directed to satisfy award, though in law it has no liability and recover the same from insured. SCCH-1 39 M.V.C.NO.543/2015 The counsel appearing for the respondent also relied upon the judgment of 2009 ACJ 437 (Ram Sujan Tiwari Vs. Sita Gupta and others). In this judgment the Madhya Pradesh High held that whether the tribunal was justified in exonerating insurance Company from liability when the vehicle was being driven on a route for which permit was not granted and held that the insurance company can exonerate its liability.
The respondent counsel also relied upon the judgment reported in 2010 ACJ 1441( Kamala Mangalal Vayani and others Vs. United India Insurance Co.Ltd and others) wherein it is held that vehicle was not having permit to operate as public service vehicle and that onus to prove insurance company that vehicle was not having permit and held it is for the insurance company to establish there is breach of policy condition and company is not liable to pay compensation. SCCH-1 40 M.V.C.NO.543/2015
The counsel relied upon the above judgments and has examined IMV Inspector, R.T.O. as RW-2 he produced endorsement regarding cancellation of permit and copy of permit which are marked at Ex.R.8 and 9. The evidence of RW-2 has not been questioned either by the petitioner counsel or by respondent NO.1 counsel and the respondent also relied upon the evidence of Asst.R.T.O. who has been examined as RW-3 and he has admitted that the permit is valid from 16.12.2014 to 15.12.2019 and the permit is not valid as on the date of accident and he has produced the copy of the permit at Ex.R.10. Ex.R.10 discloses permit was taken subsequent to the accident. On perusal of the Ex.R.8, it discloses that permit which was given to earlier owner was cancelled on 27.9.2014 and hence, it is clear that the earlier permit given in favour of the earlier owner was cancelled on 27.9.2014 and Ex.R.10 discloses that the permit was obtained from 16.12.2014. In the meanwhile SCCH-1 41 M.V.C.NO.543/2015 from 27.9.2014 to 16.12.2014 there was no any permit.
This accident took place on 18.10.2014. Hence, it is clear that as on the date of accident there was no permit and the owner plied the vehicle without any permit and hence, there is clear violation of the terms and conditions of the policy, hence, there is force in the contention of the respondent counsel that there was no any permit as on the date of accident. Though petitioner counsel has contended that earlier permit was valid and the same was cancelled on 27.9.2014 itself, therefore, the contention of the petitioner cannot be accepted. Hence, the liability of the insurance company has to be exonerated and the owner respondent No.2 is the subsequent purchaser is liable to pay the compensation to the petitioner. Hence, this issue is answered accordingly.
32. Issue No.4: In view of the discussions made above , I proceed to pass the following: -
SCCH-1 42 M.V.C.NO.543/2015
ORDER The petition filed by the petitioner is allowed in part against the respondent No.2.
The petition filed by the petitioner against respondent No.1 and 3 is hereby dismissed.
The minor petitioner is entitled for total compensation of Rs.22,49,800/- with interest at the rate of 9% per annum on Rs.18,59,800/- from the date of petition till realisation.
The respondent No.2 being the owner of the tanker lorry bearing No.KA-10-7943 is liable to pay the compensation amount and she is directed to pay the same within two months from the date of this order.
Out of the compensation amount to which the minor petitioner is entitled, 50% with proportionate interest is to be released in the name of guardian of the minor petitioner . Remaining amount with proportionate interest shall be kept in F.D. in the name of minor SCCH-1 43 M.V.C.NO.543/2015 petitioner till she attains majority or for a period of 5 years whichever is later. Guardian of the petitioner shall not create any encumbrances on the F.D. amount.
Advocate's fee is fixed at Rs.1000/-. Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her , corrected, signed and then pronounced by me in the Open Court on this the 21st day of October 2016).
(H.P.SANDESH,) Member, Prl. M.A.C.T. Bangalore.
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : V. Narayanaswamy P.W.2 : Dr. Harshad Mohanlal Shah
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR
Ex.P-2 : Chargesheet
Ex.P-3 : Sketch
Ex.P-4 : Mahazar
Ex.P-5 : IMV report
Ex.P-6 : Wound certificate
SCCH-1 44 M.V.C.NO.543/2015
Ex.P-7 : Discharge summary
Ex.P-8 : Referral letter
Ex.P-9 : Estimation letter
Ex.P-10 : Certificate issued by the college
Ex.P-11 : Salary certificate of father
Ex.P-12 : Leave certificate of father
Ex.P-13 : Medical bills
Ex.P-14 & 2 Photographs with C.D.
15
Ex.P-16 : Inpatient file
Ex.P-17 : Outpatient file
Ex.P-18 : X-ray
Witnesses examined on behalf of the respondents:
RW-1 Smt. Vijayalakshmi RW-2 Syfuddi Khan RW-3 Ramakrishna Iyengar
Documents marked on behalf of the respondents:
Ex.R.1 Policy copy
Ex.R.2 Letter issued to insured
Ex.R.3 Permit copy
Ex.R.4 Endorsement issued by RTO
Ex.R.5 Permit
Ex.R.6 Investigation report
Ex.R.7 Authorization letter
Ex.R.8 Endorsement for cancellation of permit
SCCH-1 45 M.V.C.NO.543/2015
Ex.R.9 Copy of permit
Ex.R.10 Permit extract
(H.P.SANDESH)
Member, Prl., M.A .C.T. Bangalore