Bangalore District Court
In Renukaradhya vs In 1. Dasthagiri on 18 April, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 18th DAY OF APRIL, 2017
PRESENT: SMT. B. N. SUJATAHA, B.Sc., LL.B.,
I ADDL.SMALL CAUSES JUDGE & MACT
M.V.C No.2018/2015 & MVC 2019/2015
PETITIONER IN Renukaradhya,
MVC 2018/2015: S/o. Late.Revanasiddappa @
Mariyappa,
Hindu aged 36 years,
R/at No.588-B, Near Ganesh Temple,
Bheemeshwara Nagar,
Madanayakanahalli,
Madavara, Bangalore North,
Bangalore.
PETITIONER IN Mallesh,
MVC 2019/2015: S/o. Narasimhaiah,
Hindu aged 38 years,
R/at No.108, 6th Cross,
Andrahalli Main Road,
Maruthinagara,
Vishwaneedam Post,
Bangalore North,
Bangalore - 560 091.
(Sri.S.Parameshappa -----Advocate)
- V/S -
RESPONDENT IN 1. Dasthagiri,
BOTH THE CASES: S/o. Chandraiah,
No.667, 22nd Cross,
L.R.Nagar, Vivekanagar Post,
Koramangala,
SCCH -11 2 MVC 2018/2015
Bangalore - 560 047
(Sri.B.R.Srinath -----Advocate)
2. The Branch Manager,
ICICI Lombard General Insurance
Company Limited,
No.89, 2nd Floor, S.V.R.Complex,
Madiwala, Hosur Main Road,
Bangalore - 560 068.
(Sri.Janardhan Reddy--------Advocate)
COMMON JUDGMENT
Petitioners in MVC No.2018/2015 and MVC
2019/2015 have filed these petitions, claiming
compensation of Rs.15,75,000/- and Rs.25,75,000/-
respectively for the injuries sustained by them in the road
accident.
MVC No.2018/2015 is clubbed with MVC 2019/15 as
both the petitions arise out of common accident and cause
of action are one and the same. Hence common evidence is
recorded and common judgment is delivered in MVC
2018/2015.
SCCH -11 3 MVC 2018/2015
The case of the petitioners in both the petitions
are as follows:
2) That on 23.04.2015 at about 3.00 p.m., when
petitioners were proceeding in car bearing Regn.No.KA-04-
MA-8075 along with driver Mallesh and two other workers
on Peenya flyover, NH-4, from Bangalore towards Tumkur,
at that time driver of Lorry bearing reg.No.KA-44-490 drove
the same in rash and negligent manner with high speed
and dashed on the back side of the petitioner's car bearing
Regn.No.KA-04-MA-8075, on account of which, petitioner
in MVC No.2018/2015 sustained grievous multiple injuries
such as 1) Head injury with facial fractures-right maxillary,
bilateral conjugal chemosis, hemosinus. 2) Fracture of
posterior rim of Acetabulam and fracture head of femur
right. 3) Blunt injury to the chest with contusion of left side
chest lung with fractures of left 4th rib. 4) Un-displaced
fracture of Transverse process L3 L4 and partial
thrombosis along right IJV-nelie Thrombosis. Contusions
along with abrasions and cut injuries on other parts of the
body and also the driver of the car Mallesh also suffered
SCCH -11 4 MVC 2018/2015
grievous injuries. That the petitioner in MVC 2019/2015
sustained grievous multiple injuries such as 1) multiple
blunt injuries to the chest with fractures of 2nd, 4th and 6th
ribs right side and left long contusions-preumohalino. 2)
Fracture of pelvic bones, pelvic wall haemotmas, fracture of
thorax both iliac bones, bilateral superior and inferior
pubic ramus, fracture of right acetabulum, fracture of left
sacral ala. 3) Head injury with bilateral frontal sinus,
bilateral nasal bones and nasal septum, bilateral maxillary
bones fractures with hemosinus, bilateral fracture lamina
papyracea, bilateral fracture of thyroid cartilage, and
multiple contusions haemotomas of scalp. 4) Fracture of
right transverse process 1st to 4th lumbar vertebra and left
transverse process 5th lumbar vertebra. 5) Comminuted
fracture of Ilumeral head with posterior dislocation. 6)
Blunt injury to abdomen with multiple liver lacerations,
multiple haemotomus. Contusions along with abrasions
and cut injuries on other parts of the body. It is averred
that immediately after the accident the petitioners were
admitted to M.S.Ramiah Hospital, Bangalore where they
SCCH -11 5 MVC 2018/2015
have taken treatment as inpatient and are is still
continuing in OPD treatment.
It is averred that Petitioners are impaired due to
above said injuries and they are unable to do their routine
works. It is further averred that the Peenya Traffic Police
have registered the case against the driver of the Lorry
bearing Reg.No.KA-44-490. That the respondents being
the insured and insurer of the Lorry bearing Reg.No.KA-44-
490 are jointly and severally liable to pay the compensation
to the petitioners. On these grounds, petitioners have filed
the petitions for the reliefs stated Supra.
3) In pursuance of the summons, respondent No.1
has appeared before Court and has not filed objection
statement.
Respondent No.2 has filed objection statement and
has denied the petition averments in toto, except admitting
the issuance of policy in respect of Lorry bearing
Reg.No.KA-44-490 in favour of respondent No.1. It is
contended that, the driver of the Lorry bearing Reg.No.KA-
SCCH -11 6 MVC 2018/2015
44-490 did not possess valid driving licence and FC at the
time of accident. On these grounds, respondent No.2 has
sought for dismissal of the petition.
4) From the above facts, the following issues have
been framed:-
ISSUES IN BOTH CASES
1. Whether petitioners prove
that they sustained grievous injuries
in a Motor Vehicle Accident that
occurred on 23.04.2015 at about
3.00 pm., on the Peenya Flyover,
NH-4, Bengaluru, within the
jurisdiction of Peenya Traffic Police
station on account of rash and
negligent driving of the lorry bearing
Regn.No.KA-44-490 by its driver?
2. Whether respondent No.2
proves that, the driver of the lorry
was not holding valid and effective
driving licence at the time of
accident ?
3. Whether petitioners are
entitled for the compensation as
prayed in the claim petitions? If so,
what is the quantum of
compensation and from whom?
4. What order or Award?
SCCH -11 7 MVC 2018/2015
5) Petitioner in MVC 2018/2015 in order to prove
his case has got himself examined as PW.1. He has
produced documents that are marked as Ex.P.1 to 19 and
Petitioner in MVC 2019/2015 has got himself examined as
PW.2 and has produced documents that are marked as
Ex.P.20 to 36. In MVC 2019/2015 Dr.Sharath K.R is
examined as PW.3, he has produced documents which are
marked as Ex.P.37 to 39. In MVC 2018/2015 Dr.Mahesh
is examined as PW.4, he has produced documents which
are marked as Ex.P.40 to 42 and petitioners closed their
side of evidence. Second respondent has examined his
Legal Manager as RW.1 and has produced one document
which is marked as Ex.R.1 and closed his side.
6) Heard arguments on both sides.
7) My findings on the above Issues are as under:
Issue No.1 in
In the Affirmative;
Both cases
Issue No.2 in
In the Negative;
Both cases
Issue No.3 in both Partly in the affirmative;
the cases
Issue No.4 in both
As per final order for the following:
the cases
SCCH -11 8 MVC 2018/2015
REASONS
8) ISSUE No.1 IN BOTH THE PETITIONS: It is
the case of the petitioners that on 23.04.2015 at about
3.00 p.m., when they were proceeding in car bearing
Regn.No.KA-04-MA-8075 along with driver Mallesh and
two other workers on Peenya flyover, NH-4, from Bangalore
towards Tumkur, at that time driver of Lorry bearing
reg.No.KA-44-490 drove the same in rash and negligent
manner with high speed and dashed on the back side of
the petitioner's car bearing Regn.No.KA-04-MA-8075, on
account of which, petitioners sustained injuries.
Petitioner in MVC No.2018/2015 sustained the
following grievous multiple injuries 1) Head injury with
facial fractures-right maxillary, bilateral conjugal
chemosis, hemosinus. 2) Fracture of posterior rim of
Acetabulam and fracture head of femur right. 3) Blunt
injury to the chest with contusion of left side chest lung
with fractures of left 4th rib. 4) Undisplaced fracture of
Transverse process L3 L4 and partial thrombosis along
right IJV-nelie Thrombosis. Contusions along with
SCCH -11 9 MVC 2018/2015
abrasions and cut injuries on other parts of the body and
also the driver of the car Mallesh also suffered grievous
injuries.
It is averred that the petitioner in MVC 2019/2015
sustained the following grievous multiple injuries 1)
multiple blunt injuries to the chest with fractures of 2nd, 4th
and 6th ribs right side and left long contusions-
preumohalino. 2) Fracture of pelvic bones, pelvic wall
haemotmas, fracture of thorax both iliac bones, bilateral
superior and inferior pubic ramous, fracture of right
acetabulum, fracture of left sacral ala. 3) Head injury with
bilateral frontal sinus, bilateral nasal bones and nasal
septum, bilateral maxillary bones fractures with
hemosinus, bilateral fracture lamina papyracea, bilateral
fracture of thyroid cartilage, multiple contusions
haemotomas of scalp. 4) Fracture of right transverse
process 1st to 4th lumbar vertebra and left transverse
process 5th lumbar vertebra. 5) comminuted fracture of
Ilumeral head with posterior dislocation. 6) Blunt injury to
abdomen with multiple liver lacerations, multiple
SCCH -11 10 MVC 2018/2015
haematomas. Contusions along with abrasions and cut
injuries on other parts of the body.
9) Petitioners in MVC 2018/2015 and MVC
2019/2015 have got themselves examined as PW.1 and 2
respectively and have filed affidavit by way of examination
in chief and have reiterated to the averments made in the
petition. In their further examination in chief, they have
produced documents that are marked as Ex.P.1 to 19 and
Ex.P.20 to 36 respectively.
10) In the course of cross-examination by the
learned counsel appearing for Respondent No.2, it is
elicited that Maruthi 800 car bearing reg.KA-04-Ma-8705
belongs to KARLE International Pvt. Ltd., and that
including driver four inmates were going in the car to
Nelamangala and that the accident occurred on Peenya
flyover. It is admitted suggestion that when the car of this
witness was proceeding by overtaking another vehicle on
the right side of the road at that time car and lorry
SCCH -11 11 MVC 2018/2015
colluded with each other. It is admitted suggestion that
lorry came towards extreme right side to avoid accident.
11) In the course of cross-examination of PW.2 by
the learned counsel appearing for Respondent No.2 it is
elicited that PW.2 is working as driver in KARLE
international since 10 years. It is admitted suggestion that
the accident has occurred on the extreme right side of the
road as per Ex.P.32. It is admitted suggestion that lorry
has touched to barricade on the right side. It is denied
suggestion that this witness took the car to the right side of
the road suddenly and on account of his negligence
accident occurred. It is elicited that at a time two vehicles
were proceeding in the same direction.
12) In this case accident is admitted but it is the
case of the Respondent No.2 that on account of negligence
of the driver of the car accident occurred. On going
through the entire cross-examination of PW.1 and 2 it is
clear that on the left side of the flyover one vehicle was
proceeding and the car was proceeding on the right side of
the road. The driver of the lorry was coming on the back
SCCH -11 12 MVC 2018/2015
side of the car that is towards right side of the road. The
flyover road is two way roads and at a time two vehicles
can ply without any hindrance. Respondent No.2 has
relied upon Ex.P.32/photo. On perusal of the photo it can
be seen that the car is completely damaged. That the
driver of the lorry has come just behind the car and it
appears that the driver of the lorry has come in such a
rash manner and has hit on the backside of the car.
Contrary to Ex.P.32 counsel for Respondent No.2 has
suggested to PW.1 and 2 that "in case our vehicle was not
taken towards right side and over taken this accident would
not have occurred".
13) Whether the witness admit or deny the said
suggestion it makes no difference because at a time two
vehicles can ply over the flyover. The Car of the petitioners
and the Lorry of first respondent is already on the right
side of the road. The driver of the Lorry ought to have
driven slowly as the Car which was ahead of the lorry was
completely visible to the driver, which he has not done.
The insurance company has examined Nagendra/Legal
SCCH -11 13 MVC 2018/2015
Manager as RW.1. He has filed affidavit by way of
examination in chief and has stated on oath that -
"The concerned police after proper investigation has
filed charge sheet for the offence punishable under Section
56 R/w 192 of IMV Act against insured Lorry and clearly
mentioned that at the time of accident, insured has not
obtained Registration certificate and FC to run the Lorry in
public roads."
In the course of cross-examination by the learned
counsel appearing for Petitioner nothing has been
suggested about the above evidence of RW.1. The entire
cross-examination is regarding to RC and FC. On perusal
of police records coupled with oral and documentary
evidence of PW.1, 2 and RW.1 it clearly discloses that on
account of rash and negligent driving of the lorry by its
driver accident has occurred and Ex.P.7 and 20/Wound
certificates of PW.1 and 2 respectively shows that the
petitioners have sustained injuries in the accident. Driver
of the lorry bearing Reg.No.KA-44-490 is not examined by
Respondent No.1 to rebut the oral and documentary
evidence of PW.1 and 2. Though Respondent No.2 has
SCCH -11 14 MVC 2018/2015
examined its witness as RW.1 but has not whispered even
a single word whether the driver of the lorry possessed
driving licence or not and has not made any efforts to
secure the licence of the driver of the lorry of Respondent
No.1. As per the recent decision If respondent No.1 did not
possess FC he is liable to pay fine and that cannot be a
ground to the insurer to avoid his liability. In the absence
of oral and documentary evidence it cannot be held that
respondent No.2 has proved that the driver of the lorry was
not holding valid licence. The respondent No.2 has only
has relied upon charge sheet to show that the police have
invoked provision of Section 56 of Motor Vehicle Act. As
already stated that will not take away the liability of the
insurer. In the light of the above discussions, I have no
hesitation to answer in the both the petitions Issue No.1 in
the Affirmative and Issue No.2 in the Negative.
14) ISSUE No.3 in MVC No.2018/2015: The oral
evidence of the petitioner and doctor coupled with
Ex.P.7/wound certificate, it reveals that petitioner had
sustained 1) Head injury with facial fractures-right
SCCH -11 15 MVC 2018/2015
maxillary, bilateral conjugal chemises, hemosinus. 2)
Fracture of posterior rim of Acetabulam and fracture head
of femur right. 3) Blunt injury to the chest with contusion
of left side chest lung with fractures of left 4th rib.
4) Undisplaced fracture of Transverse process L3 L4 and
partial thrombosis along right IJV-nelie Thrombosis.
Doctor has opined that the said injuries are grievous in
nature. In this case, Petitioner has examined Dr.Mahesh.M
as PW.4. He has filed affidavit by way of examination in
chief and has stated on oath that he has examined
petitioner, who was aged about 36 years and was admitted
to M.S.Ramaiah Hospital with history of RTA on
23.04.2015 at 3.30 p.m., near Goruguntepalya while
traveling in a four wheeler hit by lorry from behind. PW.4
has stated that Petitioner had sustained facial fracture-
right maxillary fracture, right fourth rib fracture with left
lung contusion, right posterior Acetabular wall fracture,
right un-displaced femoral head fracture, un-displaced L3,
L4 transverse process fracture, right internal Jugular vein
partial thrombosis. PW.4 has stated that injury No.2,3 and
4 are grievous in nature. Further PW.4 has stated that
SCCH -11 16 MVC 2018/2015
Pw.1 was treated in ICU conservatively by team of doctors
of Vascular surgeon and general surgeon and neuro
surgeon. That Pw.1 had un-displaced fracture of
accetabular wall femoral head he was managed
conservatively with bed rest. It is stated that PW.1 was
under medication and physiotherapy in there hospital and
he was discharged on 20.5.2015. This witness has stated
that recently he examined PW.1 and found that there was
loss of mobility component, muscle strength and stability
component to the right lower limb. This witness assessed
26.4% disability to the right lower limb of PW.1 and whole
disability at 7.92%. This witness has stated that the latest
X-ray of the right hip showed old fracture with secondary
degenerative arthritis. It is stated by this witness that
PW.1 is having difficulty to squat, stand on one leg, sit,
climbing stairs and walking long distances. PW.4 has
stated in his affidavit that disability of the Petitioner
increases with arthritis stage worsening and shortening of
limb. It is further stated that PW.1 may require right hip
total hip replacement surgery at later date when disability
increase and affects his activity of daily leaving. PW.4 in
SCCH -11 17 MVC 2018/2015
his further examination in chief has produced certified
copy of case sheet, out patient record and x-ray that as
marked as Ex.P.40 to 42. In the course of cross-
examination of the learned counsel appearing for
respondent No.2, it is elicited that Dr.Mahesh.M has
treated the injured with team of doctors. It is admitted
that Pw.1 has got admitted to their hospital after 4 days of
accident. It is elicited that hip fracture bone is not united.
It is denied suggestion that without subjecting PW.1 for
surgery it is not possible to assess disability. It is admitted
that "FUÀ CfðzÁgÀgÀÄ mÉç¯ï ªÀÉÄÃ¯É PÀĽvÀÄPÉÆAqÀÄ PÉ®¸À ªÀiÁqÀ®Ä CªÀjUÀÉ
CAUÀ£ÀÆå£ÀvÉ CrØ §gÀĪÀÅ¢®è ". Since the injury sustained by the
petitioner is grievous in nature he is entitled for
compensation under the following heads.
a) Pain, shock and agony;
b) Medical Expenses
c) Attendant, conveyance, food, diet,
nourishment and other incidental expenses.
d) Loss of earning on account of permanent
disability.
e) Future medical expenses.
SCCH -11 18 MVC 2018/2015
f) Disappointment, discomfort etc.
PAIN, SHOCK AND AGONY
15) Petitioner is entitled for compensation of
Rs.75,000/- towards the above said head.
MEDICAL EXPENSES, ATTENDANT, FOOD, DIET,
NOURISHMENT AND OTHER INCIDENTAL CHARGES.
16) The petitioner has stated in his evidence that,
he has incurred expenses of Rs.5,75,000/- towards
treatment, conveyance and nourishment expenses etc. In
this regard Petitioner has produced Ex.P.9/discharge
summary of M.S.Ramaiah Hospital, Ex.P.10/6 medical
bills, Ex.P11/one prescription and Ex.P.12 to 19/8 X-rays.
Even in the course of cross-examination by the learned
counsel appearing for respondent No.2 it is denied
suggestion that petitioner is hale and healthy and he is
doing work as before and has not spent Rs.5,75,000/-
towards the above said head.
17) In the course of cross-examination by the
learned counsel appearing for Respondent No.2 it is
SCCH -11 19 MVC 2018/2015
admitted suggestion that the medical expenses are borne
by his company where this witness is working. It is
admitted suggestion the inpatient bill of Rs.1,36,044/- has
been paid by company. It is denied suggestion that even
now Petitioner works in the said company. It is admitted
suggestion that ESI amount has been paid to this witness
to a sum of Rs.36,000/-. On perusal of Ex.P.10/inpatient
bill discloses that Petitioner has treatment as inpatient
from 23.04.2015 to 27.04.2015. Ex.P.9/discharge
summary of M.S.Ramaiah is shows that Petitioner has
treatment for right femoral fracture pipkins type 4 as
inpatient from 27.04.2015 to 20.05.2015. In this case
Petitioner has claimed medical bills from employer and for
the said reason he is not entitled for medical expenses.
18) That the petitioner has claimed Rs.10,00,000/-
under the head of general damages. On perusal of Ex.P.9
and 10 it closes that the Petitioner has taken treatment for
5 days at Columbia Asia hospital and for 27 days at
M.S.Ramaiah hospital. Petitioner has sustained multiple
fractures and that the petitioner might have spent some
SCCH -11 20 MVC 2018/2015
amount towards conveyance, attendant and nourishment
etc. I feel that it is proper to award Rs.500/- towards each
of the heads i.e. Rs.1,500/-. Thus in all, Petitioner is
entitled for compensation of (Rs.1,500 X 32 ) Rs.48,000/-
towards the above said head.
LOSS OF INCOME DURING TREATMENT
19) PW.1 in his petition and evidence has contended
that prior to the accident, he was hale and healthy and was
working as Senior Assistant in KARLE International Pvt.
Ltd., Yeshwanthapur, Bangalore and was getting salary of
Rs.9,662/- per month. Due to the injuries sustained in the
accident, he is not able to attend his work as Senior
Assistant in KARLE International Pvt. Ltd., Petitioner has
produced Ex.P.8/pay slip for the month of April 2015
issued KARLE International Pvt. Ltd., Respondent No.1 has
not cross-examined PW.1. The cross-examination of PW.1
by Respondent No.2 is of no purpose as far as the above
said aspect is concerned. Petitioner has not stated for how
money months he could not attend to his work and was
under rest and whether he has taken follow -up treatment
SCCH -11 21 MVC 2018/2015
or not. The nature of injuries sustained by the Petitioner
calls for rest atleast for three months. The monthly income
of Petitioner is taken at Rs.9,000/- per month. As such,
the petitioner is entitled for compensation of
Rs.9,000x3=Rs.27,000/- under the head of loss of
income during treatment.
LOSS OF FUTURE INCOME
20) The petitioner in order to substantiate his case
has examined Dr.Mahesh.M as PW.4. Dr. Mahesh.M has
stated that petitioner suffers from 26.4% disability to his
right lower limb and 7.92% disability to his whole body. In
course of cross-examination by the learned counsel
appearing for Respondent No.2 it is elicited that Petitioner
was treated conservatively and nothing worth has been
elicited regarding disability assessed by PW.4. X-rays are
produced which shows presence of old fracture. PW.4 has
stated that Petitioner is having difficulty in sitting,
standing on one leg, climbing stairs and walking for long
distance. The disability increases with time with arthritis
stage worsening and shortening of limb. In the course of
SCCH -11 22 MVC 2018/2015
cross-examination by the learned counsel appearing for the
respondent No.2, it is elicited that "CfðzÁgÀ FUÀ mÉç¯ï ªÉÄïÉ
PÀĽvÀÄPÉÄÁAqÀÄ PÉ®¸À ªÀiÁqÀ®Ä CªÀjUÀÉ CAUÀ£ÀÆå£ÀvÉ CrØ §gÀĪÀÅ¢®è. CfðzÁgÀgÀ
functionable disability §UÉÎ K£ÀÆ ºÉý®è". Taking the above
facts into consideration, this Court accepts 6% disability to
the whole body of the petitioner. Already income of the
petitioner is taken at Rs.9,000/- per month. The age of the
petitioner is shown as 36 years at the time of accident.
The multiplier for the age of 36 is '15'. Hence petitioner is
entitled for compensation of Rs.97,200/- (9,000 x 12 x 15x
6/100) towards above said head.
FUTURE MEDICAL EXPENSES:
21) Petitioner has not stated anything in his
petition regarding future medical expenses. But the doctor
who is examined on behalf of Petitioner as PW.4 has stated
in his evidence that Petitioner might require right hip total
hip replacement surgery at later date when disability
increases and affects his daily activity. The estimate
approximate surgery is Rs.5 lakhs. In the course of cross-
SCCH -11 23 MVC 2018/2015
examination by the learned counsel appearing for
Respondent No.2 it is denied suggestion that Petitioner
does not require future surgery and it will not cost Rs.5
lakhs. In this case neither the Petitioner nor Pw.4 have
produced cost of estimation of future surgery. Taking into
consideration the nature of injuries sustained by the
Petitioner coupled with oral and documentary testimony I
feel that Petitioner is entitled for minimum compensation of
Rs.25,000/- under the said head.
DISAPPOINTMENT, DISCOMFORT, FUNDS AND LOSS
OF AMENITIES
22) Petitioner has met with I accident at the age of
36 on account of which, petitioner might have suffered
some sought of disappointment, discomfort, funds and loss
of amenities etc. In the light of the above, I am of the
considered view, petitioner is entitled for compensation of
Rs.10,000/- towards the above said head.
23) In all, petitioner is entitled for compensation as
hereunder:
SCCH -11 24 MVC 2018/2015
1 Pain, Shock and agony Rs. 75,000/-
2 Medical expenses - NIL -
2 Attendant, conveyance, food, diet, Rs. 48,000/-
nourishment and other incidental
expenses
3 Loss of income during treatment Rs. 27,000/-
4 Loss of future earning Rs. 97,200/-
5 Future medical expenses Rs. 25,000/-
6 Disappointment, discomfort etc. Rs. 10,000/-
Total Rs. 2,82,200/-
24) ISSUE No.2 In MVC 2019/2015: The oral
evidence of the petitioner and doctor coupled with
Ex.P.20/wound certificate, it reveals that petitioner had
sustained liver lacerations, left long contusions-
preumohalino, Fracture of pelvic bones with both iliac
bones, sacral bones, bilateral pubic ramus fracture, L 1-L4
fracture, bilateral frontal fracture bones fracture nosal
bones fracture, right proximal humerus surgical neck
fracture. Doctor has opined that the said injuries are
grievous in nature. In this case, Petitioner has examined
Dr.Sharath K.R as PW.3. He has filed affidavit by way of
examination in chief and has stated on oath that he has
SCCH -11 25 MVC 2018/2015
treated the Petitioner who was admitted to M.S.Ramaiah
Hospital with history of RTA on 23.04.2015 at 3.30 p.m.,
near Goruguntepalya while traveling in a four wheeler hit
by lorry from behind. PW.3 has stated that Petitioner had
sustained the above said injuries. That the Petitioner was
admitted in ICU and was taken for surgery for proximal
humerus on 29.04.2015. ORIF with PHILOS plating was
done for right side proximal humerus. PW.3 has stated
that at the time of assessment of disability he found that
there was disability to right upper limb. PW.4 further has
stated that the percentage of disability is 45% to right
upper limb and has not stated whole body disability. In
the course of cross-examination by the learned counsel
appearing for Respondent No.2 it is admitted suggestion
that if Petitioner takes follow-up treatment and
physiotherapy there are chances of reducing disability.
PW.3 has stated that he does not know about follow up
treatment taken by Petitioner. It is admitted suggestion
that as per discharge summary doctors have advised
Petitioner for shoulder immobilizer and right arm dressing.
It is admitted suggestion that fracture is united with mal-
SCCH -11 26 MVC 2018/2015
union. It is admitted suggestion that this witness has not
stated functional disability of the Petitioner. It is admitted
suggestion that the whole body disability of PW.2 is 15%.
Since the injury sustained by the petitioner is grievous in
nature he is entitled for compensation under the following
heads.
a) Pain, shock and agony;
b) Medical Expenses
c) Attendant, conveyance, food, diet,
nourishment and other incidental expenses.
d) Loss of earning on account of permanent
disability.
e) Disappointment, discomfort etc.
PAIN, SHOCK AND AGONY
25) Petitioner is entitled for compensation of
Rs.70,000/- towards the above said head.
MEDICAL EXPENSES, ATTENDANT, FOOD, DIET,
NOURISHMENT AND OTHER INCIDENTAL CHARGES.
26) The petitioner has stated in his evidence that,
he has incurred expenses of Rs.10,75,000/- towards
treatment, conveyance and nourishment expenses etc. In
SCCH -11 27 MVC 2018/2015
this regard Petitioner has produced Ex.P.24/discharge
summary of M.S.Ramaiah Hospital, Ex.P.25/15 medical
bills, Ex.P.26/four prescriptions and Ex.P.27 to 32/6
photos, Ex.P.33/one C.D., Ex.P.34 to 26/3 X-rays. Even in
the course of cross-examination by the learned counsel
appearing for respondent No.2 it is denied suggestion that
petitioner is hale and healthy and he is doing work as
before and has not spent Rs.10,75,000/- towards the
above said head.
27) In the course of cross-examination by the
learned counsel appearing for Respondent No.2 it is
admitted suggestion that the medical expenses are borne
by his company where this witness is working. It is
admitted suggestion that the inpatient bill of Rs.59,650/-
has been paid by company. It is denied suggestion that
even now Petitioner works in the said company as driver.
It is admitted suggestion that this witness has not
surrendered driving licence. On perusal of
Ex.P.24/discharge summary of M.S.Ramaiah is shows that
Petitioner was given ORIF with PHILOS plating 3.5 mm
SCCH -11 28 MVC 2018/2015
done on 29.04.2015 under GA. Petitioner was treated for
right humerus surgical neck site fracture. He has taken
treatment as inpatient for the above from 26.04.2015 to
27.05.2015. In this case Petitioner has claimed medical
bills from employer and for the said reason he is not
entitled for medical expenses.
28) That the petitioner has claimed Rs.15,00,000/-
under the head of general damages and Rs.10,75,000/-
treatment, conveyance and nourishment. On perusal of
Ex.P.24 Petitioner has taken treatment for 32 days at
M.S.Ramaiah hospital. Petitioner has sustained multiple
fractures and that the petitioner might have spent some
amount towards conveyance, attendant and nourishment
etc. I feel that it is proper to award Rs.500/- towards each
of the heads i.e. Rs.1,500/-. Thus in all, Petitioner is
entitled for compensation of (Rs.1,500 X 32 ) Rs.48,000/-
towards the above said head.
SCCH -11 29 MVC 2018/2015
LOSS OF INCOME DURING TREATMENT
29) PW.2 in his petition and evidence has
contended that prior to the accident, he was hale and
healthy and was working as driver at KARLE International
Pvt. Ltd., Yeshwanthapur, Bangalore and was getting
salary of Rs.11,000/- per month. Due to the injuries
sustained in the accident, he is not able to attend his work
as driver at KARLE International Pvt. Ltd., Petitioner has
produced Ex.P.21/appointment letter and Ex.P.22/salary
slip for the month of April 2015 issued KARLE
International Pvt. Ltd., and Ex.P.23/driving licence.
Respondent No.1 has not cross-examined PW.1. The
cross-examination of PW.2 by Respondent No.2 is of no
purpose as far as the above said aspect is concerned.
Petitioner has not stated for how money months he could
not attend to his work and was under rest and whether he
has taken follow-up treatment or not. The nature of
injuries sustained by the Petitioner calls for rest atleast for
three months. The Petitioner has not examined his
employer and as per the latest decision of Apex Court, the
SCCH -11 30 MVC 2018/2015
monthly income of Petitioner is taken at Rs.9,000/- per
month. As such, the petitioner is entitled for compensation
of Rs.9,000x3=Rs.27,000/- under the head of loss of
income during treatment.
LOSS OF FUTURE INCOME
30) The petitioner in order to substantiate his case
has examined Dr.Sharath.K.R as PW.3. He has stated that
petitioner suffers from 45% disability to his right upper
limb but has not stated whole body disability. In his
further examination in chief PW.3 has produced inpatient
records, out patient and one X-rays which are marked as
Ex.P.37 to 39. In course of cross-examination by the
learned counsel appearing for Respondent No.2 it is elicited
that this witness has not treated the injured Mallesh and
as appeared before court to give evidence only regarding
disability. It is admitted suggestion that fracture in united
but with mal-union. This witness has not enquired about
avocation of the Petitioner and has not stated anything
about functional disability of the Petitioner. It is denied
suggestion that Petitioner can do his daily activities
SCCH -11 31 MVC 2018/2015
without difficulties. It is admitted suggestion that 1/3rd
disability of the particular limb is 15% to the whole body.
Petitioner has undergone surgery. X-rays are produced
which shows fracture site with mal-union. Taking the
above facts into consideration, this Court accepts 6%
functional disability to the whole body of the petitioner.
Already income of the petitioner is taken at Rs.9,000/- per
month. The age of the petitioner is shown as 36 years at
the time of accident. The multiplier for the age of 36 is
'15'. Hence petitioner is entitled for compensation of
Rs.97,200/- (9,000 x 12 x 15 x 6/100) towards above said
head.
[
FUTURE MEDICAL EXPENSES
31) Petitioner has not stated anything in his
petition regarding future medical expenses. But the doctor
who is examined on behalf of Petitioner as PW.3 has stated
in his evidence that Petitioner might require shoulder
replacement surgery in view of pain and inability to do
daily activities. Approximate expenditure including
implants and medicines is Rs.2 lakhs. In the course of
SCCH -11 32 MVC 2018/2015
cross-examination by the learned counsel appearing for
Respondent No.2 it is denied suggestion that Petitioner
does not require future surgery and it will not cost Rs.2
lakhs. In this case neither the Petitioner nor Pw.3 have
produced cost of estimation of future surgery. Taking into
consideration the nature of injuries sustained by the
Petitioner coupled with oral and documentary testimony I
feel that Petitioner is entitled for minimum compensation of
Rs.25,000/- under the said head.
DISAPPOINTMENT, DISCOMFORT, FUNDS AND LOSS
OF AMENITIES
32) Petitioner has met with an accident at the age
of 36 on account of which, petitioner might have suffered
some sought of disappointment, discomfort, funds and loss
of amenities etc. In the light of the above, I am of the
considered view, petitioner is entitled for compensation of
Rs.10,000/- towards the above said head.
33) In all, petitioner is entitled for compensation as
hereunder:
SCCH -11 33 MVC 2018/2015
1 Pain, Shock and agony Rs. 70,000/-
2 Medical expenses - NIL -
2 Attendant, conveyance, food, diet, Rs. 48,000/-
nourishment and other incidental
expenses
3 Loss of income during treatment Rs. 27,000/-
4 Loss of future earning Rs. 97,200/-
5 Future medical expenses Rs. 25,000/-
5 Disappointment, discomfort etc. Rs. 10,000/-
Total Rs. 2,77,200/-
34) RW.1 who is the legal Manger of Respondent
No.2 Company has filed affidavit stating on oath that
insured had not obtained RC and FC to run the lorry in
public road and also police have filed Charge sheet against
the accused for the offences under section 56 r/w.Section
192 of MVC. In his further examination in chief and he
has produced policy which is marked as Ex.R.1. On
perusal of Ex.R.1 it refers to vehicle bearing Reg.No.KA-04-
4490. Policy issued on 03.01.2015 period of insurance
from 4.1.2015 to 3.1.2016. Accident has occurred on
23.04.2015. Petitioner has produced Xerox copy of the
policy in respect of vehicle bearing reg.No.KA-44-490.
SCCH -11 34 MVC 2018/2015
RW.1 has contended that in the Charge sheet police
invoked provisions of Section 56 R/w.192 of MV Act and
argued that there was no FC for the car bearing Reg.No.KA-
44-4490 and further argued that insurance company is not
liable to indemnify the Respondent No.1. In this case first
Respondent has not appeared before court and has not
produced any of the vehicular document, Second
Respondent/insurance company has solely relied upon
Charge sheet. In view of the latest decision of our High
Court and apex Court merely because there was no FC to
the vehicle which was involved in the accident it will not
take away the liability of the insurer. In the light of the
above Respondent No.1 and 2 being the owner and insurer
of the lorry are liable to pay the compensation to the
Petitioners. I rely on the citation reported in 2010 ACJ
2713 Supreme Court of India at New Delhi in case of
(Yadav Kumar V/s Divisional Manager, National
Insurance Company and another). In the said case, the
rate of interest awarded to the petitioner is 8%. In the
instant case also, the said rate of interest is awarded.
SCCH -11 35 MVC 2018/2015
Accordingly in both the petitions, Issue No.3 is answered
partly in the affirmative.
35) ISSUE No.4 in both the petitions: In view of my
findings given to issue No.1 to 3, I proceed to pass the
following:-
ORDER
Petitions filed by the petitioners under Section 166 of IMV Act is partly allowed with costs.
Petitioner in MVC 2018/2015 is entitled for compensation of Rs.2,82,200/- with interest at 8% p.a on Rs.2,57,200/- (excluding future medical expenses) from the date of petition till realization and petitioner in MVC 2019/2015 is entitled for compensation of Rs.2,77,200/- with interest at 8% p.a on Rs.2,52,200/- (excluding future medical expenses) from date of petition jointly and severally from respondent No.1 and 2 till realization.
The respondent No.2 is hereby directed to deposit the compensation amount in both the petitions within 30 days from the date of this order.
In the event of deposit, the entire compensation amount awarded in MVC 2018/2015 and MVC SCCH -11 36 MVC 2018/2015 2019/2015 is ordered to be released in favour of the petitioners with interest after proper identification.
Advocate fee is fixed at Rs.1,000/- each. Draw award accordingly.
(Original of this judgment shall be kept in MVC No. 2018/2015 and copy thereof in MVC No.2019/2015).
[Dictated to the stenographer directly on computer, corrected, signed and then pronounced by me in open court dated this the 18th day of April 2017.] [B.N. SUJATHA] I Addl. Judge, Member - MACT, Court of small causes, Bengaluru City.
ANNEXURES No. of witnesses examined on behalf of the petitioner:
PW.1 : Renukaradhya PW.2 : Mallesh PW.3 : Dr. Sharath K.R PW.4 : Dr. Mahesh.M.
No. of documents marked on behalf of the petitioner:
Ex.P.1 : FIR
Ex.P.2 : Complaint
Ex.P.3 : Charge sheet
Ex.P.4 : Panchanama
Ex.P.5 : Rough sketch
Ex.P.6 : IMV report
Ex.P.7 : Wound certificate
Ex.P.8 : Salary bill
SCCH -11 37 MVC 2018/2015
Ex.P.9 : Discharge summary
Ex.P.10 : 6 medical bills
Ex.P.11 : 1 Prescription
Ex.P.12&19: X-rays.
Ex.P.20 : Wound certificate
Ex.P.21 : Appointment letter
Ex.P.22 : Salary bill
Ex.P.23 : driving licence
Ex.P.24 : Discharge summary
Ex.P.25 : 15 Medical bills
Ex.P.26 : 4 medical prescriptions
Ex.P.27-32 : 6 Photos
Ex.P.33 : One CD.
Ex.P.34-36: 3 X-ray
Ex.P.37 : Out patient record
Ex.P.38 : Inpatient record
Ex.P.39 : One X-ray
Ex.P.40 : Inpatient record
Ex.P.41 : Outpatient record
Ex.P.42 : One X-ray
No. of witnesses examined on behalf of respondents :
RW.1 : Nagendra.R No. of documents marked on behalf of respondents :
Ex.R.1 : Insurance policy I Addl Judge, Member - MACT, Court of small causes, Bengaluru City.
*SR