Bangalore District Court
Mr.Narasimhamurthy vs ) Mr.M.Subramani on 18 March, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17)
DATED THIS THE 18th DAY OF MARCH 2017
PRESENT; Sri.A.SAMIULLA B.Sc, LL.B,
XIX Addl SCJ & MACT.
MVC.No.3917/2016
Petitioner : Mr.Narasimhamurthy,
S/o Munirasimhappa,
36 years, R/at Ward No.7,
Ganganamidde, Chikkaballapur
Taluk and Dist, PIN 562 101.
(By Sri.BRH)
V/s
Respondents : 1) Mr.M.Subramani,
S/o Munikrishnappa
Major, r/at No.52,
Anighatta (V), Bidlur Post,
Devanahalli Taluk,
Bangalore Rural District
2) Royal Sundaram Alliance Ins.
Co. Ltd., Vishranthi Melaram
Towers, No.2/319, Rajiv Gandhi
Salai(OMR) Karpakkam
Chennai- 600097
(R-1 ex parte
R-2 by Sri.RSS)
SCCH-17 2 MVC 3917/16
J U D G M E N T
Petition is filed under Section 166 of MV Act seeking compensation of Rs.20,00,000/- for the injuries sustained in a road traffic accident.
2. Petitioner pleaded that on 15th day of March, 2015 at about three o' clock in the afternoon he was riding motorcycle bearing No.KA-40/U-1867 from Chikkaballapura towards Hosahudya, on Bengaluru-Chikkaballapura NH-7 road, at that time tipper lorry bearing No.KA-43-5278 came from behind driven by its driver in high speed, rash and negligent manner and caused accident dashing motorcycle, due to impact he fell down and sustained injuries. He was shifted to Deeksha Hospital, wherein he took treatment as inpatient. He was hale and healthy earlier to the accident and was earning SCCH-17 3 MVC 3917/16 Rs.12,000/- per month by working as mason, due to accidental injuries he become disabled. Jurisdictional police registered case against the driver of tipper lorry, which is owned by the first respondent and insured with the second respondent respectively, who are liable to pay compensation. Hence, petition is filed.
3. First respondent resisted the claim by filing written statement. He denied the averments set out in claim petition. He stated that there was no negligence on the part of driver of lorry, which is insured with the second respondent. Accident has taken place due to rash and negligent riding of motorcycle by its rider, who rode the same in high speed and in zigzag manner and caused accident dashing tipper lorry. Petition is bad for non-joinder of necessary parties i.e., SCCH-17 4 MVC 3917/16 owner and insurer of motorcycle. Among these grounds he prays to dismiss the petition.
4. Second respondent filed written statement denying the petition averments in toto, inter alia contended that the petition is bad for non compliance of Section 134(c) and 158(6) of MV Act. It admits the issuance of policy but disowned its liability by contending that the owner entrusted the vehicle to a person not possessing valid driving licence and vehicle was used on road without permit and fitness certificate. It denied the version of accident projected by the petitioner and the involvement of vehicle in question. Accident took place due to the negligence of rider of motorcycle who rode the same rashly and negligently without observing the vehicular movements. There is no negligence on SCCH-17 5 MVC 3917/16 the part of driver of lorry. It denied the age, avocation and income of petitioner. Reserving right to contest the matter on all grounds u/S 170 of MV Act it prays to dismiss the petition.
5. Following issues arise for consideration:
ISSUES
1. Whether petitioner proves that on 15.03.15 at about 3.00 pm., when he was riding motorcycle bearing No.KA-
40-U-1867 on Bengaluru-Chikkaballapura, N.H.7 Roa,d near Nagarjuna Engineering College, met with an accident and sustained injuries due to actionable negligence on the part of driver of Tipper Lorry, bearing No.KA-43-5278 as alleged?
2. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or award?
6. To prove the case, petitioner examined himself as Pw.1 and documents Ex.P1 to 16 were marked. Sri.K.Radhakrishna Upadyaya, Manager at Deeksha Hospiral was examined as SCCH-17 6 MVC 3917/16 Pw.2 and documents Ex.P.17 & 18 were marked. Doctor was examined as Pw.3 and documents Ex.P.18 & 19 were marked. Two documents were marked as Ex.P18. Subsequent document is treated as Ex.P18 (a). Respondents did not choose to adduce evidence.
7. Heard arguments from both sides.
8. Answers to the above issues are as follows:
Issue-1: Affirmative.
Issue-2: Partly affirmative.
Issue-3: As per final order for the following;
R E A S O N S
9. Issue-1: The say of petitioner is that, he sustained injuries in the motor accident occurred due to the negligence of driver of Tipper lorry. Per contra respondents denied it. SCCH-17 7 MVC 3917/16
10. To succeed in the claim petition, claimant has to demonstrate the actionable negligence on the part of tortfeasor, which resulted in injuries. Negligence is to be proved under touchstone of preponderance of probability and not beyond doubt as required in a criminal trial.
11. To demonstrate actionable negligence, petitioner filed affidavit reiterating the petition averments. He categorically stated that, he was proceeding on motorcycle, met with an accident, which occurred due to the negligent driving of tipper lorry by its driver and he sustained injuries.
12. To strengthen verbal say, he relied on documents. Ex.P1 is the first information report filed by the police against the driver of Tipper lorry for the offence punishable under Section 279 & 337 of IPC on the basis of report SCCH-17 8 MVC 3917/16 lodged by the Venaktesh. Ex.P2 is complaint, wherein it is stated that the accident occurred due to the negligence of driver of tipper lorry. Ex.P3 is spot mahazar, wherein the topography of place of accident is narrated. Ex.P4 is wound certificate. Ex.P5 is IMV report. Ex.P6 is final report filed by the police against the driver of lorry by opining that the accident has not taken place due to any mechanical defect of vehicles but it has taken place due to the negligence of driver of lorry.
13. In cross-examination of Pw.1 it is suggested that the accident has taken place due to his negligence, as he rode the motorcycle in high speed, he denied it. It is suggested that he sustained only simple injuries in the accident, he denied it. SCCH-17 9 MVC 3917/16 Except few suggestions nothing is elicited to disprove the case of petitioner.
14. It is argued that there is delay in lodging report, which clearly indicates that false case is filed against the driver of car. This contention is not tenable because mere delay in filing report in all circumstances does not create doubt regarding the creation of case. In the case on hand, in the complaint, the complainant categorically explained as to why there was delay in filing report by stating that he was busy in providing treatment to the injured. The injuries shown in wound certificate depicts that the injured had required some time to recover and also requires attendant of his family members during treatment. In this background report is not lodged immediately. Moreover, the injured and his family SCCH-17 10 MVC 3917/16 members bother about the injuries and they tried to get treatment at the first instance rather than to file report to put the criminal law into motion. In addition to this the wound certificate depicts that immediately after the accident the injured took treatment for injuries sustained in the history of road traffic accident.
15. It is argued that the rider of motorcycle was not possessing driving licence at the time of accident, which shows that there was negligence on the part of rider of motorcycle. This contention is not sustainable because driving motorcycle without driving licence amounts to an offence and by that itself it cannot be said that the rider has contributed negligence towards the occurrence of accident unless it is established that there was negligence on SCCH-17 11 MVC 3917/16 the part of rider of motorcycle, which contributed towards the occurrence of accident. In the case on hand no such evidence is not forthcoming to show that there was contributory negligence on the part of rider of motorcycle.
16. The discussion of oral and documentary evidence supra depict that the lorry in question caused the accident dashing motorcycle from the backside. This shows that the sole negligence of driver of lorry resulted in the accident in which the petitioner sustained injuries. Hence issue-1 is answered in affirmative.
17. Issue-2: Petitioner stated that he was hale and healthy earlier to the accident and was earning Rs.12,000/- per month by working as mason, due to accidental injuries he SCCH-17 12 MVC 3917/16 becomes disabled. In that context let us determine the just and reasonable compensation under the following heads. Pain and suffering: The wound certificate, discharge summaries, lab reports, inpatient records, OPD card and X- ray produced at Ex.P4, 7 to 11, 14, 18 & 19 show that the petitioner sustained following injuries in the said accident.
i) Fracture of both bones of left leg
ii) Crush injury of left leg and foot exposing the crushed muscles, nerves and blood vessels.
As per medical records said injuries are grievous in nature. Discharge summaries (Ex.P7 to 10 & 14) of Deeksha Hospital depicts that the Pw.1 took treatment as inpatient from 15.3.15 to 8.4.15. He underwent debridement, emergency external fixator left leg, local flap left leg on 15.3.15. He underwent wound debridement, local transposition SCCH-17 13 MVC 3917/16 flap for middle 1/3rd tibia, split skin graft and secondary repair of plantar wound on 2.4.15. He readmitted on 25.6.15 and discharged on 27.6.15. He underwent implant removal (external fixator) under GA and debridement of wounds left leg. He readmitted for third time on 18.7.15 and discharged on 26.7.15. He underwent open reduction and internal fixation of left tibia with interlocking nail and bone grafting. He readmitted on 18.1.16 and discharged on 19.1.16. He underwent removal of proximal screws and debridement of wound. He readmitted for fifth time on 20.8.16 and discharged on 23.8.16. He underwent debridement and implant removal of left leg. These facts manifest that the petitioner suffered injuries in the accident. In the background of injuries and the line of treatment the SCCH-17 14 MVC 3917/16 petitioner underwent a sum of Rs.65,000/- is awarded under this head.
Attendant charges, extra food and conveyance charges:
Discharge summaries of Deeksha Hospital reveal that the petitioner was an inpatient for 24 days. After discharge he is under follow-up treatment. During said period he has to spent considerable amount towards conveyance, attendant charges and nutritious food. Under these circumstances Rs.25,000/- is awarded under this head.
Medical expenses: The medical bills (129 in number) and prescriptions (118 in number) produced at Ex.P12, 13 & 16 depict that the petitioner spent Rs.4,43,405/- towards medical expenses. Bill No.1 is inpatient bill for Rs.2,25,500/- Bill No.62 is inpatient bill for Rs.15,000/-. Bill No.66 is SCCH-17 15 MVC 3917/16 inpatient bill for Rs.70,000/-. Bill No.95 is inpatient for Rs.14,500/-. Ex.P15 is inpatient for Rs.35,250/-. Though the Pw.1 was subjected to cross-examination but nothing is elicited which creates doubt regarding genuineness of medical bills. Under these circumstances the petitioner is entitle for Rs.4,43,405/- towards medical expenses. Loss of income during laid up period: It is stated that the petitioner was earning Rs.12,000/- per month by working as mason. Except self serving statement absolutely no positive proof is placed to demonstrate the avocation and income of petitioner as contended. In the absence of cogent evidence the income of petitioner is taken as Rs.7,000/- per month on the basis of notional income as the accident is of the year 2015. The nature of injuries sustained by the petitioner and SCCH-17 16 MVC 3917/16 the line of treatment taken by him manifest that he requires at least five months from recovering from said injuries. During said period he lost the income. Hence he is entitle for Rs.35,000/- (Rs.7,000/-x5) under this head. Loss of future income due to disability: Petitioner sustained fracture of both bones of left leg and crush injury of left leg and foot exposing the crushed muscles, nerves and blood vessels. As per medical records said injuries are grievous in nature. Discharge summaries of Deeksha Hospital depicts that the Pw.1 took treatment as inpatient from 15.3.15 to 8.4.15. He underwent debridement, emergency external fixator left leg, local flap left leg on 15.3.15. He underwent wound debridement, local transposition flap for middle 1/3rd tibia, split skin graft and secondary repair of plantar wound on 2.4.15. He readmitted on 25.6.15 and SCCH-17 17 MVC 3917/16 discharged on 27.6.15. He underwent implant removal (external fixator) under GA and debridement of wounds left leg. He readmitted on 18.7.15 and discharged on 26.7.15. He underwent open reduction and internal fixation of left tibia with interlocking nail and bone grafting. He readmitted on 18.1.16 and discharged on 19.1.16. He underwent removal of proximal screws and debridement of wound. He readmitted on 20.8.16 and discharged on 23.8.16. He underwent debridement and implant removal of left leg.
Pw.1 stated that due to accidental injuries he is unable to bear weight, unable to stand long time, unable to walk for long distance etc. He cannot work as mason. Dr.Somashekar (Pw.3) stated that on clinical examination of Pw.1 he found that the Pw.1 walks with severe pain and limping. Wasting of SCCH-17 18 MVC 3917/16 left thigh is seen shortening of left lower limb is seen. Diffuse swelling of left leg is seen. He stated that delayed union of tibia fracture and gap non union of shaft fibula. He stated that there is loss of muscle power around left knee and left ankle. There is loss of stability and mobility component. He stated that Pw.1 suffers with disability at 50% of left lower limb and whole body at 25%.
In cross-examination the Pw.3 stated that he has not treated the injured. He has verified wound certificate and five discharge summaries of Deeksha Hospital. X-rays shows delayed union of tibia and non union of fibula. He stated that he cannot say the reason for delayed union of tibia fracture and non union of fibula fracture. He stated that generally if follow up treatment is not taken properly there are chances SCCH-17 19 MVC 3917/16 of delayed union and non union. He stated that tibia fracture is properly union. It is suggested that 1/3rd of disability of particular limb is to be taken as disability to the whole body, he denied it. He denied that the disability assessed is on higher side.
It is well known that the loss of earning capacity is to be determined basing upon the permanent physical impairment. The Pw.1 has not convincingly established his avocation. He stated that he is working as mason. If he is mason he uses both lower and upper limbs to the maximum extent. Pw.3 is not the treated doctor. Absolutely no explanation is offered for non-examination of treated doctor. Fracture of tibia is properly union. Fibula fracture is non union. Considering the nature of injury, line of treatment SCCH-17 20 MVC 3917/16 and the evidence of Medical officer it can be said that the disability assessed at 25% is on higher side and it can be quantified at 20%. Considering the avocation of Pw.1 it can be said that the disability affects his occupation to the extent of 18%. Pw.1 was aged 37 years at the time of accident as per medical records. As per Sarla Verma's case the appropriate multiplier applicable is 15. In this background the petitioner is entitle for Rs.2,26,800/- (Rs.7,000x12x15x18/100). Loss of future amenities and happiness: Pw.1 was aged 37 years at the time of accident. He sustained fracture injuries. He suffers with disability. It shows that he finds difficulty in doing day-to-day activities as he might have suffered loss of pain, loss of amenities and comforts in life. Therefore, SCCH-17 21 MVC 3917/16 considering the age, nature of injuries and percentage of disability Rs.40,000/- is awarded under this head. Future medical expenses: The Pw.1 & 3 have not stated anything about requirement of further treatment and approximate expenses to be incurred thereof. Hence, the P.w.1 is not entitled for compensation under this head.
Petitioner is entitled for compensation under the following heads;
a) Towards pain and suffering Rs.65,000/-
b) Towards attendant charges,
extra food and conveyance
expenses Rs. 25,000/-
c) Loss of income during
laid up period Rs. 35,000/-
d) Towards medical expenses Rs.4,43,405/-
SCCH-17 22 MVC 3917/16
e) Loss of future income due to
permanent disability Rs.2,26,800/-
f) Loss of future amenities and
happiness. Rs. 40,000/-
g) Towards future medical expenses NIL
-------------
Total Rs.8,35,205/-
18. Liability: First respondent is the owner and second
respondent is the insurer of offending vehicle. They are liable to pay compensation. Though the second respondent raised statutory defences but fails to establish. Second respondent being insurer has to indemnify the owner.
It is well settled that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the Nationalised bank. In a decision SCCH-17 23 MVC 3917/16 reported in 2013 AIR SCW 5375 (Minu Rout and others V/s Satyapradhaan Mohapatra and others) the Hon'ble Apex Court held that the insurance company is liable to pay interest at the rate of 9% p.a. In a decision reported in 2014 ACJ 1565 (Anjani Singh and others V/s. Salauddin and others) the Hon'ble Apex Court awarded interest @ 9% p.a. Hence, this issue is answered in partly affirmative.
19. Issue-3: By virtue of above findings, Tribunal proceeds to pass the following;
ORDER Petition is allowed in part with costs.
Petitioner is entitled for compensation of Rs.8,35,205/- (Rupees Eight lakhs thirty five thousand two SCCH-17 24 MVC 3917/16 hundred five Only) with interest @ 9 per cent per annum from the date of petition till its realization.
Respondents are liable to pay compensation to the petitioner.
Second respondent being the insurer is liable to pay compensation to the petitioner and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized or schedule bank of the choice of petitioner for a period of three years without any encumbrance with liberty to withdraw the accrued interest periodically and remaining 50 per cent shall be released in favour of petitioner.
Advocate's fee is fixed at Rs.1,000/-.
SCCH-17 25 MVC 3917/16Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 18th day of March, 2017) (A.SAMIULLA) XIX ADDL.SCJ & MACT, BANGALORE.
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONER:
Pw.1: Mr. Narasimhamurthy P.w.2: Sri. K. Radhakrishna Upadhyaya P.w.3: Dr. S.A. Somashekara DOCUMENTS:
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 Mahazar
Ex.P.4 Wound certificate
Ex.P.5 IMV report
Ex.P.6 Charge sheet
Ex.P.7 to 10 Discharge summaries
Ex.P.11 7 Lab reports with 1 ECG report
Ex.P.12 129 medical bills for Rs.4,08,155/-
Ex.P.13 118 Prescriptions
Ex.P.14 Discharge summary
SCCH-17 26 MVC 3917/16
Ex.P.15 Inpatient bill
Ex.P.16 Medical bills of Rs.35,250/- and
Two advance receipts
Ex.P.17 Authorisation letter
Ex.P.18 5 Inpatient records
Ex.P.18(A) OPD card
Ex.P.19 One recent X-ray
FOR RESPONDENT: Nil
DOCUMENTS: Nil
(A.SAMIULLA)
XIX ADDL.SCJ & MACT,
BANGALORE.
SCCH-17 27 MVC 3917/16
AWARD
SCCH NO.17
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA : BANGALORE CITY
1. MVC.No.3917/2016 Petitioner : Mr. Narasimhamurthy, S/o. Munirasimhappa, 36 years, R/at Ward No.7, Ganganamidde, Chikkaballapur Taluk and Dist, PIN 562 101 (By Sri.BRH) V/s Respondents : 1) Mr. M. Subramani, S/o. Munikrishnappa Major, r/at No.52, Anighatta (V), Bidlur Post, Devanahalli Taluk, Bangalore Rural District
2) Royal Sundaram Alliance Ins.
Co. Ltd., Vishranthi Melaram Towers, No.2/319, Rajiv Gandhi Salai(OMR) Karpakkam Chennai- 600097 (R-2 by Sri.RSS R-1 ex parte) SCCH-17 28 MVC 3917/16 WHEREAS, this petition filed on by the petitioner/s above named U/sec.110-A/166 of the M.V.C. Act, praying for the compensation of Rs.
(Rupees ) for the injuries sustained by the petitioner/Death of in a Motor Accident by Vehicle No.
WHEREAS, this claim petition coming up before Sri/Smt. A. Samiulla, XIX Addl.Judge, Member, Bangalore, in the presence of Sri/Smt. Advocate for petitioner/s and of Sri/Smt. Advocate for respondent.
ORDER Petition is allowed in part with costs.
Petitioner is entitled for compensation of Rs.8,35,205/- (Rupees Eight lakhs thirty five thousand two hundred five Only) with interest @ 9 per cent per annum from the date of petition till its realization. SCCH-17 29 MVC 3917/16
Respondents are liable to pay compensation to the petitioner.
Second respondent being the insurer is liable to pay compensation to the petitioner and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized or schedule bank of the choice of petitioner for a period of three years without any encumbrance with liberty to withdraw the accrued interest periodically and remaining 50 per cent shall be released in favour of petitioner.
Advocate's fee is fixed at Rs.1,000/-.
SCCH-17 30 MVC 3917/16Given under my hand and seal of the Court this day of 2017.
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, METROPOLITAN AREA:
BANGALORE.
By the
Petitioner/s Respondent
No.1 No.2
Court fee paid on petition 10-00
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee ____________________________
Total Rs.
_____________________________
Decree Drafted Scrutinised by
Decree Clerk SHERISTEDAR
MEMBER
MOTOR ACCIDENT CLAIMSTRIBUNAL,
METROPOLITAN AREA: BANGALORE.
SCCH-17 31 MVC 3917/16
SCCH-17 32 MVC 3917/16
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL;
B'LORE (SCCH-17) DATED THIS THE 18th DAY OF MARCH 2017 PRESENT; Sri.A.SAMIULLA B.Sc, LL.B, XIX Addl SCJ & MACT.
MVC.No.3917/2016
Petitioner : Mr.Narasimhamurthy,
S/o Munirasimhappa,
36 years, R/at Ward No.7,
Ganganamidde, Chikkaballapur
Taluk and Dist, PIN 562 101.
(By
Sri.BRH)
V/s
Respondents : 1) Mr.M.Subramani,
S/o Munikrishnappa
Major, r/at No.52,
Anighatta (V), Bidlur Post,
Devanahalli Taluk,
Bangalore Rural District
2) Royal Sundaram Alliance Ins.
SCCH-17 33 MVC 3917/16
Co. Ltd., Vishranthi Melaram
Towers, No.2/319, Rajiv Gandhi
Salai(OMR) Karpakkam
Chennai- 600097
(R-1 ex parte
R-2 by
Sri.RSS)
J U D G M E N T
Petition is filed under Section 166 of MV Act seeking compensation of Rs.20,00,000/- for the injuries sustained in a road traffic accident.
2. Petitioner pleaded that on 15th day of March, 2015 at about 3.00 p.m. he was riding motorcycle bearing No.KA-
40/U-1867 from Chikkaballapura towards Hodahudaya, on Bengaluru-Chikkaballapura NH-7 road, at that time tipper lorry bearing No.KA-43-5278 came from behind driven by its driver in high speed, rash and negligent manner and caused SCCH-17 34 MVC 3917/16 accident dashing motorcycle, due to impact he fell down and sustained injuries. He was shifted to Deeksha Hospital, wherein he took treatment as inpatient. He was hale and healthy earlier to the accident and was earning Rs.12,000/- per month by working as mason, due to accidental injuries he become disabled. Jurisdictional police registered case against the driver of tipper lorry, which is owned by the first respondent and insured with the second respondent respectively, who are liable to pay compensation. Hence, petition is filed.
3. First respondent was placed ex parte. Second respondent filed written statement denying the petition averments in toto, inter alia contended that the petition is bad for non compliance of Section 134(c) and 158(6) of MV Act. It admits the issuance of policy but disowned its liability SCCH-17 35 MVC 3917/16 by contending that the owner entrusted the vehicle to a person not possessing valid driving licence and vehicle was used on road without permit and fitness certificate. It denied the version of accident projected by the petitioner and the involvement of vehicle in question. Accident took place due to the negligence of rider of motorcycle who rode the same rashly and negligently without observing the vehicular movements. There is no negligence on the part of driver of tempo. It denied the age, avocation and income of petitioner. Reserving right to contest the matter on all grounds u/S 170 of MV Act it prays to dismiss the petition.
6. Following issues arise for consideration:
ISSUES
1. Whether petitioner proves that on *********825.8.15 at about 3.14 p.m., when he was proceeding by riding SCCH-17 36 MVC 3917/16 motorcycle bearing No. KA-55-H-6493 on Mysore road, Bangalore. At that time tempo bearing No. KA-19-AA-
5441 came with high speed in a rash and negligent manner dashed against the petitioner's motorcycle. As a result of which, he fell down and sustained injuries as alleged?
2. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or award?
5. To prove the case, petitioner examined himself as Pw.1 and documents Ex.P1 to 16. Sri.K.Radhakrishna Upadyaya, Manager at Deeksha Hospiral was examined as Pw.2 and documents Ex.P.17 & 18 were marked. Doctor was examined as Pw.3 and documents Ex.P.18 & 19 were marked. Respondents did not choose to adduce evidence.
6. Heard arguments from both sides.
7. Answers to the above issues are as follows:
Issue-1: Affirmative.
Issue-2: Partly affirmative.
Issue-3: As per final order SCCH-17 37 MVC 3917/16 for the following R E A S O N S
8. Issue-1: The say of petitioner is that, he sustained injuries in the motor accident occurred due to the negligence of driver of Tipper lorry. Per contra respondents denied it.
9. To succeed in the claim petition, claimant has to demonstrate the actionable negligence on the part of tortfeasor, which resulted in injuries. Negligence is to be proved under touchstone of preponderance of probability and not beyond doubt as required in a criminal trial.
10. To demonstrate actionable negligence, petitioner filed affidavit reiterating the petition averments. He categorically stated that, he was proceeding on motorcycle, met with an SCCH-17 38 MVC 3917/16 accident, which occurred due to the negligent driving of tipper lorry by its driver and he sustained injuries.
11. To strengthen verbal say, he relied on documents. Ex.P1 is the first information report filed by the police against the driver of Tipper lorry for the offence punishable under Section *****279 & 337 of IPC on the basis of report lodged by the petitioner. Ex.P2 is complaint, wherein it is stated that the accident occurred due to the negligence of driver of tipper lorry. Ex.P3 is mahazar,******. Ex.P4 is discharge summary.
12. In cross-examination of Pw.1 it is suggested that the accident has taken place due to his negligence, as he rode the motorcycle in high speed, he denied it. It is suggested that he sustained only simple injuries in the accident, he denied it. SCCH-17 39 MVC 3917/16 Except few suggestions nothing is elicited to disprove the case of petitioner.
13. It is argued that there is delay of two days -------------
----------
14. It is argued that the petitioner has not produced final report. It is true the petitioner has not filed final report and for only that reason entire case cannot be thrown out. The second respondent in cross-examination of Pw.1 nothing is asked about the filing or non filing of charge sheet. In the case on hand the production of FIR, complaint, wound certificate and discharge summary prima facie establish the occurrence of accident and sufferance of injuries. Absolutely there is no contra evidence placed by the respondents to disprove the case of petitioner. In the absence of contra SCCH-17 40 MVC 3917/16 material absolutely there is no impediment to accept the version of petitioner. Thus it can be said that under preponderance of probability the petitioner demonstrated that he sustained injuries due to the actionable negligence on the part of driver of offending vehicle. Hence issue-1 is answered in affirmative. *******8****
15. Issue-2: Petitioner stated that he was hale and healthy earlier to the accident and was earning Rs.10,000/- per month by doing coolie work, due to accidental injuries he becomes disabled. In that context let us determine the just and reasonable compensation under the following heads. Pain and suffering: The wound certificate, discharge summaries, lab reports, inpatient records produced at Ex.P4, SCCH-17 41 MVC 3917/16 8 to 10 and 14, and 12 show that the petitioner sustained following injuries in the said accident.
i) Fracture of both bones of left leg
ii) crush injury of left leg and foot exposing the crushed muscles, nerves and blood vessels.
As per medical records said injuries are grievous in nature. Discharge summaries (Ex.P7 to 10) of Deeksha Hospital depicts that the Pw.1 took treatment as inpatient from ******812.12.15 to 19.12.15. Petitioner underwent debridement, ankle region and fixation with suturing + vesicular repair on 12.12.2015 under SA. Evidence supra manifest that the petitioner sustained injuries in the accident. In the background of injuries and the line of SCCH-17 42 MVC 3917/16 treatment the petitioner underwent a sum of Rs.65,000/- is awarded under this head.
Attendant charges, extra food and conveyance charges:
The Discharge summaries (Ex.P8) of Deeksha Hospital reveals that the petitioner was an inpatient from *****15.11.15 to 20.11.15. He took treatment as inpatient for six days. After discharge he is under follow-up treatment. During said period he has to spent considerable amount towards conveyance, attendant charges and nutritious food. Under these circumstances Rs.25,000/- is awarded under this head.
Medical expenses: The medical bills (129 in number) and prescriptions (118 in number) produced at Ex.P12, 13 & 16 depict that the petitioner spent Rs.1,43,405/- towards SCCH-17 43 MVC 3917/16 medical expenses. Bills No.9 & 10 issued by Deeksha Hospital for ***Rs.12,100/- and Rs.4,000/- respectively. Under these circumstances the petitioner is entitle for Rs.4,43,405/- towards medical expenses.
Loss of income during laid up period: It is stated that the petitioner was earning Rs.12,000/- per month by working as mason. Except self serving statement absolutely no positive proof is placed to demonstrate the avocation and income of petitioner as contended. In the absence of cogent evidence the income of petitioner is taken as Rs.7,000/- per month on the basis of notional income as the accident is of the year 2015. The nature of injuries sustained by the petitioner and the line of treatment taken by him manifest that he requires at least five months from recovering from said injuries. SCCH-17 44 MVC 3917/16 During said period he lost the income. Hence he is entitle for Rs.35,000/- (Rs.7,000/-x5) under this head. Loss of future income due to disability: Pw.1 sustained fracture of both bones of left leg and crush injury of left leg and foot exposing the crushed muscles, nerves and blood vessels. He was admitted to Victoria Hospital as inpatient on 15.5.15 and discharged on 1.6.15. He took treatment as inpatient for 16 days and after discharge he took follow up treatment. A degloving injury is a type of avulsion in which an extensive section of skin is completely torn off. Pw.1 stated that he is facing difficulties due to accidental injuries. Pw.2 stated that Pw.1 underwent wound debridement and SSG. He stated that on examination he found deformity of left foot, walks with limp, tenderness over left foot and restriction of joint movements of left ankle plantar. He stated that on SCCH-17 45 MVC 3917/16 radiological examination he found no significant abnormality.
He opined that the P.w.1 suffers from permanent physical impairment 24% of left lower limb, which is of 12% of whole body.
In cross-examination he stated that the P.w.1 was operated by Dr. Sathyanarayan and Dr. Pavan. It is suggested that the disability assessed is on higher side, he denied it. He stated that he does not know the occupation of P.w.1 and he has not assessed functional disability.
It is well known that the loss of earning capacity is to be determined basing upon the permanent physical impairment. The Pw.1 has not convincingly established his avocation. He stated that he is working as painter. If he is painter he uses both lower and upper limbs to the maximum SCCH-17 46 MVC 3917/16 extent. Considering the nature of injury, line of treatment and the evidence of Medical officer it can be said that the disability assessed at 12% is on higher side. Considering the avocation of P.w.1 it can be said that the disability affects his occupation to the extent of 10%. Pw.1 was aged 23 years at the time of accident as per medical records. As per Sarlava Verma's case the appropriate multiplier applicable is
14. In this background the petitioner is entitle for Rs.2,26,800/- (Rs.**********7,000 x 12 x 18 x 8/100). - NIL-
Loss of future amenities and happiness: Pw.1 was aged 36 years at the time of accident. He sustained fracture injury. It shows that he finds difficulty in doing day-to-day activities as he might have suffered loss of pain, loss of SCCH-17 47 MVC 3917/16 amenities and comforts in life. Therefore, considering the age, nature of injuries and percentage of disability Rs.40,000/- is awarded under this head.
Future medical expenses: The Pw.2 has not stated that P.w.1 requires further treatment. Hence, the P.w.1 is not entitle for compensation under this head.
Petitioner is entitled for compensation under the following heads;
a) Towards pain and suffering Rs.65,000/-
b) Towards attendant charges,
extra food and conveyance
expenses Rs. 25,000/-
c) Loss of income during
laid up period Rs. 35,000/-
d) Towards medical expenses Rs.4,43,405/-
SCCH-17 48 MVC 3917/16
e) Loss of future income due to
permanent disability Rs.2,26,800/-
f) Loss of future amenities and
happiness. Rs. 40,000/-
g) Towards future medical expenses NIL
-------------
Total Rs.8,35,205/-
13. Liability: First respondent is the owner and second
respondent is the insurer of offending vehicle. They are liable to pay compensation. Though the second respondent raised statutory defences but fails to establish. Second respondent being insurer has to indemnify the owner. Hence, this issue is answered in partly affirmative.
14. Issue-3: By virtue of above findings, Tribunal proceeds to pass the following;
SCCH-17 49 MVC 3917/16
ORDER Petition is allowed in part with costs.
Petitioner is entitled for compensation of Rs.8,35,205/- (Rupees Eight lakhs thirty five thousand two hundred five Only) with interest @ 9 per cent per annum from the date of petition till its realization.
Respondents are liable to pay compensation to the petitioner.
Second respondent being the insurer is liable to pay compensation to the petitioner and it is directed to deposit the aforesaid compensation amount within 60 days from the date of this judgment.
In the event of deposit, 50 per cent of the amount shall be kept in fixed deposit in any nationalized or schedule bank of the choice of petitioner for a period of three years SCCH-17 50 MVC 3917/16 without any encumbrance with liberty to withdraw the accrued interest periodically and remaining 50 per cent shall be released in favour of petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 18th day of March, 2017) (A.SAMIULLA) XIX ADDL.SCJ & MACT, BANGALORE.
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PETITIONERS & RESPONDENTS:
FOR PETITIONER:
Pw.1: Mr. Narasimhamurthy P.w.2: Sri. K. Radhakrishna Upadhyaya P.w.3: Dr. S.A. Somashekara DOCUMENTS:
Ex.P.1 FIR
Ex.P.2 Complaint
SCCH-17 51 MVC 3917/16
Ex.P.3 Mahazar
Ex.P.4 Wound certificate
Ex.P.5 IMV report
Ex.P.6 Charge sheet
Ex.P.7 to 10 Discharge summaries
Ex.P.11 7 Lab reports with 1 ECG report
Ex.P.12 129 medical bills for Rs.4,08,155/-
Ex.P.13 118 Prescriptions
Ex.P.14 Discharge summary
Ex.P.15 Inpatient bill
Ex.P.16 Medical bills of Rs.35,250/- and
Two advance receipts
Ex.P.17 Authorisation letter
Ex.P.18 5 Inpatient records
Ex.P.18a OPD card
Ex.P.19 One recent X-ray
FOR RESPONDENT: Nil
DOCUMENTS: Nil
(A.SAMIULLA)
XIX ADDL.SCJ & MACT,
BANGALORE.