Bangalore District Court
For The Relief Sought For vs Is The Insurer Of The Tata Sumo Bearing ... on 16 October, 2015
THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 16th day of October, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),LL.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.2246/2014
C/w. M.V.C.No.2247/2014
1. S.Priyanka, ..... PETITIONER IN
D/o Suryanarayana Reddy, M.V.C.No.2246/2014
Aged about 20 years,
Residing at:
C/o Vishwanatha Reddy,
Opp. Pearl Valley School,
Rudramma Layout,
Anekal,
Bangalore Urban.
(By Sri. A.Srinivasaiah, Adv.,)
V/s
1. M.Manjunatha, .... RESPONDENTS IN
S/o Munireddy, M.V.C.No.2246/2014
Bhaktipura Village,
Attibele Hobli,
Mayasandra Post,
Anekal,
Bangalore Urban.
2. The Manager,
Reliance General Insurance Company
Limited,
R.O.No.4/3/01 & 3/2,
11th Main Road,
3rd Block, Jayanagar,
Bangalore-560 011.
(Cover Note No.C1401532311003076
2 M.V.C.NO.2246/2014 C/w
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(SCCH-7)
Validity: 28-04-2013 to 27-04-2014)
(R-1 By Sri. G. Vishwanatha Reddy,
Adv.,)
(R-2 By Sri. A.N. Hegade, Adv.,)
1. B.Bhaskar, PETITIONER IN
S/o Basavaraju, M.V.C.No.2247/2014
Aged about 20 years,
Residing at:
No.92, Mayasandra,
Anekal,
Bangalore Urban District.
(By Sri. A.Srinivasaiah, Adv.,)
V/s
1. M.Manjunatha, .....RESPONDENTS IN
S/o Munireddy, M.V.C.No.2247/2014
Bhaktipura Village,
Attibele Hobli,
Mayasandra Post,
Anekal,
Bangalore Urban.
2. The Manager,
Reliance General Insurance Company
Limited,
R.O.No.4/3/01 & 3/2,
11th Main Road,
3rd Block, Jayanagar,
Bangalore-560 011.
(Cover Note No.C1401532311003076
Validity: 28-04-2013 to 27-04-2014)
(R-1 By Sri. G. Vishwanatha Reddy,
Adv.,)
(R-2 By Sri. A.N. Hegade, Adv.,)
3 M.V.C.NO.2246/2014 C/w
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(SCCH-7)
COMMON JUDGMENT
As per the Order dated 09.03.2015 passed on Memo in
M.V.C.No.2246/2014, M.V.C.No.2247/2014 is clubbed with the
said M.V.C.No.2246/2014 and the common evidence is recorded
in the said case. Hence, M.V.C.No.2246/2014 and
M.V.C.No.2247/2014, are pending for consideration and disposal
before this Tribunal by passing a common judgment.
2. The Petitioner in M.V.C.No.2246/2014 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 10,00,000/- with interest and costs.
3. The brief averments of the Petitioner's case in M.V.C.
No.2246/2014 are as follows;
a) The 1st Respondent is the R.C. Owner and 2nd
Respondent is the Insurer of the Tata Sumo bearing Registration
No.KA-08-M-0736.
b) On 01.02.2014 at about 2.30 p.m., when she was
proceeding as a pillion rider on a Yamaha Motor Cycle bearing
Registration No.KA-51-EF-5132 along with Bhaskar and when
the Motor Cycle reached near Sunkareddy Layout Cross,
Chandapura, at that point of time and place, one Tata Sumo
bearing Registration No.KA-08-M-0736 being driven by its driver
in a rash and negligent manner endangering to human life, came
with high speed and due to excessive speed, the driver of the Tata
Sumo lost control over his vehicle and dashed as against their
Motor Cycle from behind, resulted in an accident.
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c) She was sustained grievous injuries and was
immediately shifted to Sparsh Hospital, Bangalore and after first
aid treatment, she was taken to Vijaya Home, Chandrapura for
better treatment and admitted as an inpatient for 15 days.
d) The accident occurred only due to rash and negligent
driving of the driver of the Tata Sumo bearing Registration
No.KA-08-M-0736. The Jurisdictional Hebbagodi Police have
registered a case as against the driver of the said offending
vehicle.
e) She had sustained grievous injuries, such as, fracture
patella and other multiple injuries.
f) She was underwent surgery of ORIF under SA on
02.02.2014. Post operative period was uneventful. After
discharge from the Hospital, she was advised for strict bed rest,
physiotherapy exercises, non-weight bearing and for periodical
checkups. Accordingly, she is attending the Hospital for the
same.
g) Due to permanent disability sustained in the
accident, she cannot walk freely, sit cross legged, to squat, to
kneel, stand firmly, to climb steps and to use Indian toilet. Due
to grievous injuries sustained in the accident, she needs an
attendant for her daily activities and she cannot walk without the
help of an attendant/walking stick.
h) She was aged 20 years and was studying II .B.A., at
B.E.S. Degree College and that apart, she was also doing
"Beautician" job, getting monthly income of Rupees 10,000/- and
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was hale and healthy prior to the accident. Due to permanent
disability sustained in the accident, she is not in a position to do
her "Beautician" job and now, she is idle without doing any work.
Hence, this Petition.
4. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
5. Initially, though the notice was duly served on the
Respondent No.2, he was remained absent and hence, he was
placed as exparte on 05.08.2014. Later, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
as per the Order dated 02.09.2014 passed on I.A.No.I, the
exparte order is set-aside and the Respondent No.2 is taken on
file. But, initially, inspite of giving sufficient opportunities, the
Respondent No.2 had not filed the written statement. Later, as
per the Order dated 24.04.2015 passed on I.A.No.II, the written
statement filed by the Respondent No.2 is taken on file.
6. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.2246/2014, has further
contended as follows;
a) At the outset, the claim petition as filed by the
Petitioner for the relief sought for, is not maintainable either
under law or on facts.
b) Whatever the averments made in the claim petition,
which speaks regarding the accident, transportation,
hospitalization, etc., of the Petitioner is not within his knowledge,
6 M.V.C.NO.2246/2014 C/w
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thereby, the Petitioner is hereby called upon to put to strict proof
of the same.
c) The said Police had colluded with the Petitioner, filed
a false case as against the driver of the said Tata Sumo bearing
Registration No.KA-08-M-0736 just to help the Petitioner and the
said false complaint was filed as against the driver of the said
vehicle.
d) He admits that, the particulars furnished in the claim
petition, regarding the ownership of the vehicle and the same
being insured with the second Respondent vide Policy
No.C1401532311003076, valid from 28.04.2013 to 27.04.2014
and at the time of accident, the Insurance Policy was in force,
hence, the Petitioner is not entitled for any kind of compensation
from him.
e) The Petitioner is not entitled for any kind of
compensation claimed in the claim petition is highly exaggerated
and not in accordance with the settled principle's of law.
f) The vehicle got valid insurance at the time of alleged
accident and also driver of the said vehicle got valid driving
licence, if there is any liability, he is not liable to pay the
compensation. Hence, prayed to dismiss the claim petition.
7. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.2246/2014, has further
contended as follows;
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a) He admits that, the vehicle bearing Registration
No.KA-08-M-0736 was duly insured with him and the same is
valid on the date of accident.
b) The Respondent insured has not been furnished with
the particulars of the vehicle including the driving licence of the
person, who was driving a vehicle and the cause for accident
giving raise to the present claim petition. Without these
particulars, insurer finds it difficult to submit an effective
statement of objections. Since these particulars are not
immediately available, Respondent insured is obliged to file this
statement and hence, the statement is filed with liberty to file
elaborate statement of objections on receipt of the material
particulars and information referred to above. He admits having
insured the vehicle involved in the accident. The insurer's
liability is subject to the validity of DL and other documents
referred to above. Owner of the vehicle failed to comply the
provisions of M.V. Act under Section 134(c).
c) The concerned Police Authority has not complied the
provisions under Section 158 of M.V. Act.
d) Without prejudice to the above contention that, the
alleged accident has occurred only due to the negligence of the
rider of the Motor Cycle, which the claimant pillion rider and not
a driver of TATA Sumo. The rider of Motor Cycle suddenly
swerved to his right turn and came in the line of motion of TATA
Sumo bearing Registration No.KA-08-M-0736. This rash act of
the rider of the Motor Cycle was too sudden and without any
warning or signal. Since the Motor Cycle changed its lane of
traffic and switched over to the lane of traffic of Tata Sumo. The
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accident was inevitable and beyond the control of anybody. The
rider of the Motor Cycle has contributed cause of accident 100%.
The manner, in which, the accident occurred, as a result of
collision between the two vehicles, i.e., TATA Sumo and Motor
Cycle. The accident occurred in the middle of the road. The Police
sketch and Mahazar indicate the positive negligence of the rider
of the Motor Cycle.
e) The claim for award of compensation of Rupees
10,00,000/- is exaggerated and unrelated to the injuries suffered
by claimant and injuries are simple in nature to be noticed. It is
obvious that, the claimant is trying to convert an unfortunate
incident into a windfall.
f) He prays and reserves its right to amend his
statement of objections and also take over the defence of the
insured in the event of the owner does not contest the
proceedings. As such, as enabled under Section 170 of M.V. Act,
1988, he may be permitted to contest the claim of the petition
both in regard to actionable negligence and the quantum of
compensation, if policy was valid on the date of accident.
Besides, the attempts of the insurer to defend insured and avail
all the defences are enabled by Condition No.2 of the Policy. It is
in the policy came to be incorporated in the contact of indemnity
by reason of the observation of the Apex Court in Para 16 of 1959
SC 1331.
g) In the event of this Hon'ble Court passing an award
for compensation, the rate of interest shall not exceed 6% in view
of the law declared by the Hon'ble High Court of Karnataka in
Geetha's case and reiterated in Jagadisha's case vide AIR 1972
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SC 2466 and ILR 1990 Kar 4384 and ILR 2000 Kar 1098, ILR
2000 Kar 3809 and ILR 2001 Kar 493. Hence, prayed to dismiss
the claim petition.
8. The Petitioner in M.V.C.No.2247/2014 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 10,00,000/- with interest and costs.
9. The brief averments of the Petitioner's case in M.V.C.
No.2247/2014 are as follows;
a) The 1st Respondent is the R.C. Owner and 2nd
Respondent is the Insurer of the Tata Sumo bearing Registration
No.KA-08-M-0736.
b) On 01.02.2014 at about 2.30 p.m., when he was
proceeding and riding a Yamaha Motor Cycle bearing
Registration No.KA-51-EF-5132 along with Priyanka and when
he reached near Sunkareddy Layout Cross, Chandapura, at that
point of time and place, one Tata Sumo bearing Registration
No.KA-08-M-0736 being driven by its driver in a rash and
negligent manner endangering to human life, came with high
speed and due to excessive speed, the driver of the Tata Sumo
lost control over his vehicle and dashed as against their Motor
Cycle from behind, resulted in an accident. He had sustained
grievous injuries and was immediately shifted to Sparsh Hospital,
Bangalore and after first aid treatment, he was taken to Vijaya
Home, Chandrapura for better treatment and admitted as an
inpatient for 15 days.
10 M.V.C.NO.2246/2014 C/w
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(SCCH-7)
c) The accident occurred only due to rash and negligent
driving of the driver of the Tata Sumo bearing Registration
No.KA-08-M-0736. The Jurisdictional Hebbagodi Police have
registered a case as against the driver of the said offending
vehicle.
d) He had sustained grievous injuries, such as, fracture
both bones of right leg and other multiple injuries.
e) He was underwent surgery of CRIF with interlocking
nail under SA on 02.02.2014. Post operative period was
uneventful. After discharge from the Hospital, he was advised for
strict bed rest, physiotherapy exercises, non-weight bearing and
for periodical checkups. Accordingly, he is attending the Hospital
for the same.
f) Due to permanent disability sustained in the
accident, he cannot walk freely, sit cross legged, to squat, to
kneel, stand firmly, to climb steps and to use Indian toilet. Due
to grievous injuries sustained in the accident, he needs an
attendant for his daily activities and he cannot walk without the
help of an attendant/walking stick.
g) He was aged 20 years and was doing "Web designing"
job getting monthly income of Rupees 10,000/- and was hale and
healthy prior to the accident. Due to permanent disability
sustained in the accident, he is not in a position to do his "Web
designer" job and now, is idle without doing any work. Hence,
this Petition.
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10. In response to the notice, the Respondent No.1 has
appeared before this Tribunal through his Learned Counsel and
has filed the written statement.
11. Initially, though the notice was duly served on the
Respondent No.2, he was remained absent and hence, he was
placed as exparte on 05.08.2014. Later, the Respondent No.2 has
appeared before this Tribunal through his Learned Counsel and
as per the Order dated 02.09.2014 passed on I.A.No.I, the
exparte order is set-aside and the Respondent No.2 is taken on
file. But, initially, inspite of giving sufficient opportunities, the
Respondent No.2 had not filed the written statement. Later, as
per the Order dated 24.04.2015 passed on I.A.No.II, the written
statement filed by the Respondent No.2 is taken on file.
12. The Respondent No.1 inter-alia denying the entire
case of the Petitioner in M.V.C.No.2247/2014, has further
contended as follows;
a) At the outset, the claim petition as filed by the
Petitioner for the relief sought for, is not maintainable either
under law or on facts.
b) Whatever the averments made in the claim petition,
which speaks regarding the accident, transportation,
hospitalization, etc., of the Petitioner is not within his knowledge,
thereby, the Petitioner is hereby called upon to put to strict proof
of the same.
c) The said Police had colluded with the Petitioner, filed
a false case as against the driver of the said Tata Sumo bearing
12 M.V.C.NO.2246/2014 C/w
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Registration No.KA-08-M-0736 just to help the Petitioner and the
said false complaint was filed as against the driver of the said
vehicle.
d) He admits that, the particulars furnished in the claim
petition, regarding the ownership of the vehicle and the same
being insured with the second Respondent vide Policy
No.C1401532311003076, valid from 28.04.2013 to 27.04.2014
and at the time of accident, the Insurance Policy was in force,
hence, the Petitioner is not entitled for any kind of compensation
from him.
e) The Petitioner is not entitled for any kind of
compensation claimed in the claim petition is highly exaggerated
and not in accordance with the settled principle's of law.
f) The vehicle got valid insurance at the time of alleged
accident and also driver of the said vehicle got valid driving
licence, if there is any liability, he is not liable to pay the
compensation. Hence, prayed to dismiss the claim petition.
13. The Respondent No.2 inter-alia denying the entire
case of the Petitioner in M.V.C.No.2247/2014, has further
contended as follows;
a) He admits that, the vehicle bearing Registration
No.KA-08-M-0736 was duly insured with him and the same is
valid on the date of accident.
b) The Respondent insured has not been furnished with
the particulars of the vehicle including the driving licence of the
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person, who was driving a vehicle and the cause for accident
giving raise to the present claim petition. Without these
particulars, insurer finds it difficult to submit an effective
statement of objections. Since these particulars are not
immediately available, Respondent insured is obliged to file this
statement and hence, the statement is filed with liberty to file
elaborate statement of objections on receipt of the material
particulars and information referred to above. He admits having
insured the vehicle involved in the accident. The insurer's
liability is subject to the validity of DL and other documents
referred to above. Owner of the vehicle failed to comply the
provisions of M.V. Act under Section 134(c).
c) The concerned Police Authority has not complied the
provisions under Section 158 of M.V. Act.
d) Without prejudice to the above contention that, the
alleged accident has occurred only due to the negligence of the
rider of the Motor Cycle, which the claimant pillion rider and not
a driver of TATA Sumo. The rider of Motor Cycle suddenly
swerved to his right turn and came in the line of motion of TATA
Sumo bearing Registration No.KA-08-M-0736. This rash act of
the rider of the Motor Cycle was too sudden and without any
warning or signal. Since the Motor Cycle changed its lane of
traffic and switched over to the lane of traffic of Tata Sumo. The
accident was inevitable and beyond the control of anybody. The
rider of the Motor Cycle has contributed cause of accident 100%.
The manner, in which, the accident occurred, as a result of
collision between the two vehicles, i.e., TATA Sumo and Motor
Cycle. The accident occurred in the middle of the road. The Police
14 M.V.C.NO.2246/2014 C/w
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sketch and Mahazar indicate the positive negligence of the rider
of the Motor Cycle.
e) The claim for award of compensation of Rupees
10,00,000/- is exaggerated and unrelated to the injuries suffered
by claimant and injuries are simple in nature to be noticed. It is
obvious that, the claimant is trying to convert an unfortunate
incident into a windfall.
f) He prays and reserves its right to amend his
statement of objections and also take over the defence of the
insured in the event of the owner does not contest the
proceedings. As such, as enabled under Section 170 of M.V. Act,
1988, he may be permitted to contest the claim of the petition
both in regard to actionable negligence and the quantum of
compensation, if policy was valid on the date of accident.
Besides, the attempts of the insurer to defend insured and avail
all the defences are enabled by Condition No.2 of the Policy. It is
in the policy came to be incorporated in the contact of indemnity
by reason of the observation of the Apex Court in Para 16 of 1959
SC 1331.
g) In the event of this Hon'ble Court passing an award
for compensation, the rate of interest shall not exceed 6% in view
of the law declared by the Hon'ble High Court of Karnataka in
Geetha's case and reiterated in Jagadisha's case vide AIR 1972
SC 2466 and ILR 1990 Kar 4384 and ILR 2000 Kar 1098, ILR
2000 Kar 3809 and ILR 2001 Kar 493. Hence, prayed to dismiss
the claim petition.
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14. The Petitioner in M.V.C.No.2247/2014 has filed the
said petition as against the Respondents No.1 and 2 under
Section 166 of the Motor Vehicles Act, 1989 praying to award
compensation of Rupees 10,00,000/- with interest and costs.
15. Based on the above said pleadings, I have framed the
following Issues;
ISSUES
In M.V.C.No.2246/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Tata
Sumo bearing Registration No.KA-
08-M-0736 by its driver and in the
said accident, she sustained
injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
ISSUES
In M.V.C.No.2247/2014
1. Whether the Petitioner proves that,
the accident occurred due to rash
and negligent driving of the Tata
Sumo bearing Registration No.KA-08-
M-0736 by its driver and in the said
accident, he sustained injuries?
2. Whether the Petitioner is entitled for
compensation and damages? If so,
how much and from whom?
3. What Order?
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16. In order to prove their case, the Petitioner in
M.V.C.No.2246/2014 herself has been examined as P.W.1 and
has also examined one witness as P.W.3 by filing the affidavits as
their examination-in-chief and has placed reliance upon Ex.P.1
to Ex.P.11, Ex.P.18 and Ex.P.19 and the Petitioner in
M.V.C.No.2247/2014 himself has been examined as P.W.2 and
has also examined one witness as P.W.4 by filing the affidavits as
their examination-in-chief and has placed reliance upon Ex.P.12
to Ex.P.17, Ex.P.20 and Ex.P.21. On the other hand, the
Respondents No.1 and 2 have not adduced any evidence on their
behalf.
17. Heard the arguments.
18. My answers to the above said Issues are as follows;
M.V.C.No.2246/2014
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 1,86,697/-
with interest at the rate
of 6% p.a. from the date
of petition till payment,
from the Respondent
No.2.
Issue No.3 : As per the final Order,
M.V.C.No.2247/2014
Issue No.1 : In the Affirmative,
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Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for compensation
of Rupees 2,47,267/-
with interest at the rate of
6% p.a. (excluding future
medical expenses of
Rupees 10,000/-) from
the date of petition till
payment, from the
Respondent No.2.
Issue No.3 : As per the final Order,
for the following;
REASONS
19. ISSUE No.1 IN M.V.C.No.2246/2014 AND ISSUE
No.1 IN M.V.C.No.2247/2014 :- The P.W.1, who is the
Petitioner in M.V.C.No.2246/2014 has stated in her
examination-in-chief that, on 01.02.2014 at about 2.30 p.m.,
when she was proceeding as a pillion rider on a Yamaha Motor
Cycle bearing Registration No.KA-51-EF-5132 along with
Bhaskar, i.e., the Petitioner in M.V.C.No.2247/2014 and when
the Motor Cycle reached near Sunkareddy Layout Cross,
Chandapura, at that point of time and place, one Tata Sumo
bearing Registration No.KA-08-M-0736 being driven by its driver
in a rash and negligent manner endangering to human life, came
with high speed and due to excessive speed, the driver of the
Tata Sumo lost control over his vehicle and dashed as against
their Motor Cycle from behind, resulted in an accident. She has
further stated that, she had sustained grievous injuries and
immediately, shifted to Sparsh Hospital, Bangalore and after
first aid treatment, she was taken to Vijaya Nursing Home,
Chandrapura, for better treatment and admitted as an inpatient
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for 15 days. She has further stated that, the accident occurred
only due to rash and negligent driving of the driver of the Tata
Sumo bearing Registration No.KA-08-M-0736 and the
Jurisdictional Hebbagodi Police have registered a case as against
the driver of the said offending vehicle. She has further stated
that, she had sustained grievous injuries, such as, fracture
patella and other multiple injuries.
20. The P.W.2, who is the Petitioner in
M.V.C.No.2247/2014, has also stated the same evidence of
P.W.1, in his examination-in-chief. He has further stated that,
he had sustained grievous injuries and was immediately shifted
to Sparsh Hospital, Bangalore and after first aid treatment, he
was taken to Vijaya Nursing Home, Chandapura for better
treatment and admitted as an inpatient for 6 days. He has
further stated that, he sustained grievous injuries, such as,
fracture of both bones of right leg and multiple injuries.
21. No doubt, the P.W.1 in her cross-examination has
stated that, she does not know that, in the alleged accident,
which parts of their Motor Cycle were damaged. Further, both
the Petitioners have not produced any medical documents of
Sparsh Hospital to show that, immediately after the accident,
they have shifted to Sparsh Hospital, Bangalore, wherein, first
aid treatment was taken. Further, the P.W.1 in her cross-
examination has stated that, she has no hurdle to produce the
medical documents to show that, she took treatment at Sparsh
Hospital. The same has also been stated by the P.W.2 in his
cross-examination. Further P.W.2 in his cross-examination has
stated that, he has not produced his driving licence and at the
time of accident they were proceeding on the service road and in
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this regard, he has not produced any documents and he does
not know the speed of the offending vehicle as it was dashed to
his vehicle on behind. Both the P.W.1 and P.W.2 have clearly
stated in their cross-examination that, they have not lodged the
complaint in respect of the alleged road traffic accident. But, it
no way affects to consider the case of the Petitioners of both the
cases and it cannot be thrown away the said oral version of
P.W.1 and P.W.2, which has been stated by them in their
examination-in-chief, as, to corroborate her oral version, the
Petitioner in M.V.C.No.2246/2014 has produced Ex.P.1 FIR,
Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 MVI Report,
Ex.P.5 Charge Sheet, Ex.P.6 Wound Certificate, Ex.P.7
Discharge Summaries 2 in numbers and Ex.P.11 X-ray Films 6
in numbers and the Petitioner in M.V.C.No.2247/2014 has
produced Ex.P.12 Wound Certificate, Ex.P.13 Discharge
Summary and Ex.P.17 X-ray Films 6 in numbers, which clearly
disclosed that, due to high speed, rash and negligent manner of
driving of the offending Tata Sumo bearing Registration No.KA-
08-M-0736 by its driver itself, the said road traffic accident was
taken place on 01.02.2014 at 2.30 p.m., which dashed to the
Motor Cycle bearing Registration No.KA-51-EF-5132, wherein,
both the Petitioners were proceeding as a pillion rider and rider,
respectively and due to the said impact, both the Petitioners had
sustained grievous injuries, i.e., fractures, which is clear from
the following discussion. More so, both the P.W.1 and P.W.2
have clearly denied the suggestions put to them by the
Respondents that, Anekal Road is a very busy road and the
Petitioner in M.V.C.No.2247/2014 was riding the Motor Cycle in
a zig zag manner without observing vehicular movements and he
himself caused the said accident and due to his own negligence
20 M.V.C.NO.2246/2014 C/w
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itself, the said accident was taken place and the Motor Cycle was
not damaged in the alleged accident and in the said alleged
accident, he had only sustained simple injury. Furthermore, the
P.W.1 in her cross-examination has clearly stated that, the
Motor Cycle, on which, she was proceeding belongs to her friend
Bhaskar, i.e., the Petitioner in M.V.C.No.2247/2014 and at the
time of accident, they were proceeding to Anekal and the
offending Tata Sumo came from their back side and Anekal road
is a double road and the width of the one side road is about 15 -
20 ft. and at the time of accident, the left side footpath of the
road, on which, they are proceeding in the Motor Cycle was
about 2 - 3 ft. away. She has further clearly stated that,
immediately after the accident, she was shifted to Sparsh
Hospital and in the alleged accident, her left leg was fractured
and she took treatment to the said fracture injury at Vijaya
Nursing Home, Anekal and Dr. Balasubramanya had treated her
in the said Hospital. The P.W.2 has further clearly stated in his
cross-examination that, since 2011, he has riding the Motor
Cycle and the road on which, the accident was taken place is a
double road and at the time of accident, they were proceeding on
the service road and the left side of footpath was 2-3 ft. away
from his vehicle at the time of accident and in the said accident,
his Motor Cycle was fully damaged and whatever the damages
caused to his Motor Cycle in the accident, which are shown in
Ex.P.4 MVI Report. He has further stated that, initially he was
shifted to Sparsh Hospital and on the same day itself, his family
members knew about the alleged road traffic accident.
22. The contents of Ex.P.1 FIR and Ex.P.2 Complaint
further clearly disclosed that, the father of the Petitioner in
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M.V.C.No.2247/2014 had lodged Ex.P.2 Complaint before the
Hebbagodi Police as against the driver of the offending Tata
Sumo bearing Registration No.KA-08-M-0736 by alleging that,
on 01.02.2014 at 2.30 p.m., his son B. Bhaskar, i.e., the
Petitioner in M.V.C.No.2247/2014, was proceeding on his Motor
Cycle bearing Registration No.KA-51-EF-5132 along with
Priyanka, who is the Petitioner in M.V.C.No.2246/2014 as a
pillion rider on NH-7 Road, near Chandapura and when they
proceeding near Sunkareddy Layout Cross, the offending Tata
Sumo bearing Registration No.KA-08-M-0736 came from their
behind and very high speed, rash and negligent manner and
dashed to the Motor Cycle on its behind and due to which, his
son had sustained injuries on his right leg and the said Priyanka
had sustained injuries on her left leg and as such, he prayed to
take necessary legal action as against the driver of the offending
Tata Sumo bearing Registration No.KA-08-M-0736 and based on
the Ex.P.2 Complaint, the said Police have registered a criminal
case as against the driver of the offending Tata Sumo bearing
Registration No.KA-08-M-0736 for the offences punishable
under Section 279 and 337 of IPC under Crime No.77/2014. It
is also clear from the contents of Ex.P.1 FIR and Ex.P.2
Complaint that, there is no delay as such in lodging the said
Ex.P.2 Complaint by the father of the Petitioner in
M.V.C.No.2247/2014.
23. The contents of Ex.P.3 Spot Panchanama and Ex.P.4
MVI Report clearly disclosed that, the said offending Tata Sumo
bearing Registration No.KA-08-M-0736 as well as its driver are
very much involved in the said road traffic accident and due to
the negligence on the part of the driver of the offending Tata
22 M.V.C.NO.2246/2014 C/w
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Sumo itself, the said accident was taken place, which dashed to
the Motor Cycle bearing Registration No.KA-51-EF-5132,
wherein, both the Petitioners were proceeding and on the
extreme left side of the road itself, the said road traffic accident
was taken place. The damages caused to both the vehicles are
clearly shown in Ex.P.4 MVI Report, which clearly disclosed
about the terrific impact of the said accident. It is also clearly
mentioned in Ex.P.4 MVI Report that, the accident was not
occurred due to any mechanical defects of both the vehicles.
24. The contents of Ex.P.6 Wound Certificate clearly
disclosed that, with a alleged history of road traffic accident,
when a Tata Sumo hit the vehicle Motor Bike, she was traveling
around 2.30 p.m., on 01.02.2014 near Chandapur, the
Petitioner in M.V.C.No.2246/2014 was admitted in Vijaya
Nursing Home on 01.02.2014 itself and on examination, it is
found that, she had sustained left knee swelling and x-ray
confirms fracture of patella, which is grievous in nature.
25. The contents of Ex.P.7 Discharge Summaries 2 in
numbers further clearly disclosed that, with a history of road
traffic accident, when the Petitioner was traveling towards
Attibele on Chandapura Road, was hit by over speedy Tata Sumo
and on examination, it is found that, she had sustained left knee
swelling and x-ray confirms fracture of patella distal and by
admitting as an inpatient from 01.02.2014 to 07.02.2014, i.e.,
for 7 days and again she was admitted on 29.04.2014 to
02.05.2014, i.e., for 4 days, totally, for 11 days, she took
treatment to the said accidental injuries in Vijaya Nursing
Home.
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26. Ex.P.11 X-ray Films 6 in numbers also disclosed
that, the nature of said fracture injuries sustained by the
Petitioner in M.V.C.No.2246/2014 in the said road traffic
accident.
27. From the above said medical evidence, it clearly goes
to show that, in the said road traffic accident, the Petitioner in
M.V.C.No.2246/2014 had sustained fracture of patella, which is
grievous in nature.
28. The contents of Ex.P.12 Wound Certificate disclosed
that, with a alleged history of road traffic accident hit by over
speedy Tata Sumo, when he was riding Motor Bike with one
Miss. Priyanka, i.e., the Petitioner in M.V.C.No.2246/2014 on
01.02.2014 at 2.30 p.m., the Petitioner in M.V.C.No.2247/2014
was admitted in Vijaya Nursing Home on the same day itself and
on examination, it is found that, he had sustained right leg
swollen and X-ray confirms fracture of both bones of right leg,
which is grievous in nature.
29. The contents of Ex.P.13 Discharge Summary further
clearly disclosed that, with a history of road traffic accident,
when the Petitioner in M.V.C.No.2247/2014 Motor Bike hit a
speedy as on 01.02.2014 around 3.00 p.m., he was taken to
Sparsh Hospital, where first aid was given and on examination,
it was found that, fracture of both bones of right leg and by
admitting as an inpatient from 01.02.2014 to 06.02.2014, i.e.,
for 6 days, he took treatment to the said accidental injuries in
Vijaya Nursing Home.
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30. Ex.P.17 X-ray Films 6 in numbers also disclosed
that, in the road traffic accident, the Petitioner in
M.V.C.No.2247/2014 had sustained fracture of both bones of
right leg, which is grievous in nature.
31. The contents of Ex.P.5 Charge Sheet further clearly
disclosed that, since during the course of investigation, it is
found that, due to high speed, rash and negligent manner of
driving of the offending Tata Sumo bearing Registration No.KA-
08-M-0736 by its driver itself, the said road traffic accident was
taken place on 01.02.2014 at 2.30 p.m., near Sunkareddy
Layout cross, Chandapura, Bangalore - Hosur NH-7 Road,
which dashed to the Motor Cycle bearing Registration No.KA-51-
EF-5132 on its behind, wherein, both the Petitioners were
proceeding as a pillion rider and rider, respectively and due to
the said impact, the Petitioner in M.V.C.No.2246/2014 had
sustained grievous injuries on her left leg and the Petitioner in
M.V.C.No.2247/2014 had sustained grievous injuries on his
right leg and as such, after thorough investigation, the
Investigating Officer has filed a charge sheet as against the
driver of the offending Tata Sumo bearing Registration No.KA-
08-M-0736 for the offences punishable under section 279 and
338 of IPC.
32. From the above said material evidence, it is clearly
proved that, the offending Tata Sumo bearing Registration
No.KA-08-M-0736 as well as its driver are very much involved in
the said road traffic accident, which was taken place due to high
speed, rash and negligent manner of driving of the offending
vehicle by its driver itself, wherein, the Petitioners had sustained
grievous injuries. To deny or to discard the same, nothing is
25 M.V.C.NO.2246/2014 C/w
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available on record on behalf of the Respondents, as, though
they have filed the written statement to contest the case of the
Petitioners, they have not adduced any evidence on their behalf.
Even, though the P.W.1 and P.W.2 have been cross-examined by
the Respondents, nothing has been elicited from their mouth to
consider their defence. Accordingly, I answered Issue No.1 in
M.V.C.No.2246/2014 and Issue No.1 in M.V.C.No.2247/2014
in the Affirmative.
33. ISSUE No.2 IN M.V.C.No.2246/2014 :- The P.W.1
has stated that, she was aged about 20 years. But, the Petitioner
has not produced any authenticated documents to consider her
age at the time of accident. Though the P.W.1 in her
examination-in-chief has stated that, she was studying II B.A. at
B.E.S. Degree, but, to consider the same, no authenticated
documents are produced. Ex.P.1 FIR disclosed that, at the time
of accident, the Petitioner was 22 years old. Ex.P.5 Charge
Sheet, Ex.P.6 Wound Certificate and Ex.P.8 Medical Bills
disclosed that, at the time of accident, the Petitioner was 20
years old. Ex.P.7 Discharge Summary disclosed that, at the time
of accident, the Petitioner was 21 years old. From this, it
appears that, there is discrepancy in mentioning the age of the
Petitioner at the time of accident. The P.W.1 in her cross-
examination has stated that, now, she has completed B.A.
Degree. In the absence of the material documentary evidence,
based on the available documents as well as the evidence of
P.W.1, this Tribunal considered that, at the time of accident, the
Petitioner was 22 years old. Hence, the age of the Petitioner is
considered as 22 years old at the time of accident.
26 M.V.C.NO.2246/2014 C/w
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34. The P.W.1 has stated that, she was studying II B.A.
at B.E.S. Degree College and she was also doing 'Beautician' job
and getting monthly income of Rupees 10,000/-. Except her oral
version, the Petitioner has also not produced any authenticated
documents to show that, at the time of accident, along with her
study, she was also doing 'Beautician' job and getting monthly
income of Rupees 10,000/-. Further, the P.W.1 in her cross-
examination has clearly stated that, she has no hurdle to
produce the documents to show that, she has completed
Beautician Course and was doing Beautician job and getting
monthly income of Rupees 10,000/- at the time of accident and
she was doing beautician job in her house and in this regard,
she has maintained the record, but, she has not produced any
scrap of paper to consider the same. As this Tribunal has
already come to the conclusion that, at the time of accident, the
Petitioner was 22 years old. By considering the oral version of
P.W.1 as well as her age at the time of accident, it is made
crystal clear that, at the time of accident, the Petitioner was a
College student. The status of the Petitioner clearly disclosed
that, at the time of accident, the Petitioner was a non-earning
member. By considering all these material facts, which are
available on record, this Tribunal feels that, it is just, proper and
necessary to consider the notional income of the Petitioner is of
Rupees 5,000/- per month, which is reasonable and acceptable
one. Hence, the notional income of the Petitioner is considered
as Rupees 5,000/- per month at the time of accident.
35. The P.W.1 has stated that, she had sustained
grievous injuries, such as, fracture of patella and other multiple
injuries and she underwent surgery of ORIF under SA on
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02.02.2014 and Post operative period was uneventful and the
Doctor, who has treated her advised for strict bed rest,
physiotherapy exercises, non-weight bearing and for periodical
checkups and accordingly, she is attending the Hospital for
periodical checkups. She has further stated that, again for the
second time, she admitted to Hospital on 29.04.2014 due to
severe pain on her leg and underwent surgery of removal of
implants and discharge on 02.05.2014 and post operative period
was uneventful and the Doctors, who has treated her advised for
bed rest, physiotherapy exercises, non-weight bearing and for
periodical exercises.
36. As this Tribunal has already observed based on the
contents of Ex.P.6 Wound Certificate, Ex.P.7 Discharge
Summaries and Ex.P.11 X-rays 6 in numbers that, in the said
road traffic accident, the Petitioner had sustained fracture of
patella, which is grievous in nature and by admitting as an
inpatient from 01.02.2014 to 07.02.2014, i.e., for 7 days and
also from 29.04.2014 to 02.05.2014, i.e., for 4 days, totally, for
11 days, she took treatment to the accidental injuries at Vijaya
Nursing Home. It is clear from the contents of Ex.P.7 Discharge
Summaries that, during the course of treatment, the Petitioner
underwent ORIF under SA on 02.02.2014 and on 30.04.2014,
she again underwent surgery for removal of implants in the said
Hospital. As the Petitioner had sustained fracture injury on her
left leg and she underwent surgery for two times, she required
the regular follow-up treatment. P.W.1 in her cross-examination
has clearly stated that, after discharge, she took physiotherapy
treatment at Amrutha Physiotherapy clinic at Anekal as an
outpatient once in 20 days for a period of one year. Therefore,
28 M.V.C.NO.2246/2014 C/w
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the case made out by the Petitioner in respect of the periodical
checkup and follow-up treatment as per the advise of the Doctor
after her discharge from the Hospital and also bed rest, can very
well be believed and accept.
37. The P.W.1 has stated that, due to permanent
disability sustained in the accident, she is not in a position to do
her beautician job and now is idle without doing any work. She
has further stated that, due to the permanent disability
sustained in the accident, she is unable to walk freely, sit cross
legged, to squat, to kneel, stand firmly, to climb steps and to use
India toilet.
38. The Petitioner has examined the Assistant Professor
of Orthopaedic Surgeon, as P.W.3, who has stated in his
examination-in-chief that, recently, he examined the Petitioner
at Victoria Hospital on 22.06.2015 exclusively for disability
assessment and on clinical examination, he found the disability,
i.e., disability to squatting on floor, sitting cross leg, kneeling
and range of movement knee flexion - extension and knee flexor
muscles. He has further stated that, based on the findings and
guidelines and Gazette Notification, the Petitioner suffers the
permanent residual physical disability of about 13.4% of left
lower limb and 6.7% of whole body. The P.W.3 has produced
Ex.P.18 OPD Card and Ex.P.19 X-ray Film.
39. But, based on the oral version of P.W.1 and P.W.3
coupled with the contents of Ex.P.18 and Ex.P.19, it cannot be
believed and accept that, due to the said accidental injuries, the
Petitioner is suffering from permanent residual physical
disability of 13.4% of left lower limb and about 6.7% to the
29 M.V.C.NO.2246/2014 C/w
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whole body, as, the P.W.3 in his examination-in-chief itself has
clearly stated that, radiological examination revealed the
fracture of left patella shows union. More so, the P.W.3 is not a
treated Doctor and the same has been clearly admitted by the
P.W.3 in his cross-examination by stating that, he has not
treated the Petitioner. Even the P.W.3 has not suggested the
Petitioner to take further treatment, when he came to their
Hospital on 22.06.2015 for assessment of disability. The same
has also been clearly admitted by the Petitioner in his cross-
examination itself. Further, the P.W.3 in his cross-examination
has clearly stated that, he has not consulted the Doctors, who
have treated the Petitioner and since the Petitioner has reached
maximum stage of recovery, he has not suggested for any
medicines for muscle strength. He has further clearly stated in
his cross-examination that, the Petitioner can continue her job
with little difficulty and the fractures are well united.
Furthermore, as this Tribunal has already come to the
conclusion that, the Petitioner has not established her
avocation at the time of accident. But, she was a college student
at the time of accident. Furthermore, as per Ex.P.7 Discharge
Summaries, on 29.04.2014, the Petitioner underwent surgery
for removal of implants, it shows that, now the Petitioner is not
having any implants in situ. More so, the P.W.1 in her cross-
examination has clearly stated that, now, she has completed
B.A. Degree. According to the Petitioner, at the time of accident,
she was studying II B.A. at B.E.S. Degree College. From this, it
appears that, the said accidental injuries no way caused
inconvenience to the Petitioner to continue her education.
Further, though the P.W.1 in her cross-examination has stated
that, now also she is taking treatment once in one month, to
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consider the same, no authenticated medical documents is
produced by the Petitioner. Therefore, the said extent of
permanent residual physical disability of about 6.7% of whole
body relating to the Petitioner as stated by the P.W.3 is an
exaggeration and on higher side and as such, it is not accepted.
40. However, in the said road traffic accident, the
Petitioner has sustained fracture of patella and by admitting as
an inpatient, implants were inserted during the course of
treatment and she took treatment to the accidental injuries at
Vijaya Nursing Home. Furthermore, during the course of
treatment for the 2nd time itself, the implants were removed.
More so, at the time of accident, the Petitioner was 22 years old.
By considering all these material facts, this Tribunal feels that,
due to the accidental injuries, the Petitioner is suffering from
permanent residual physical disability of 4% to the whole body,
which is believable and acceptable one.
41. As this Tribunal has already come to the conclusion
that, the permanent residual physical disability of the Petitioner
is of 4%. This would certainly come in the way of the future life
of the Petitioner and thereby, her income to that extent would
be definitely reduced. Therefore, the Petitioner is entitled for
future loss of income arising out of the permanent residual
physical disability of 4%.
42. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 22 years at the time of
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 18.
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43. As the Petitioner is suffering from permanent
residual physical disability of 4% to the whole body. The
notional income of the Petitioner is already considered as
Rupees 5,000/- per month. Therefore, the loss arising out of the
said 4% disability for monthly income of Rupees 5,000/- by
applying multiplier 18 comes to Rupees 43,200/-, i.e., (Rupees
5,000/- x 12 x 18 x 4%).
44. As per Ex.P.6 Wound Certificate and evidence of
P.W.1 and P.W.3, the Petitioner had sustained one grievous
injury. The Petitioner was in the Hospital as an inpatient from
01.02.2014 to 07.02.2014, i.e., for 7 days and from 29.04.2014
to 01.05.2014, i.e., for 4 days, totally, for 11 days. Due to the
said injuries, the Petitioner could have definitely suffered a lot of
pain and agony, during the course of treatment. Considering the
said aspects, it is just, proper and necessary to award a sum of
Rupees 20,000/- towards pain and suffering.
45. As it is already observed that, the age of the
Petitioner was 22 years. She has to lead remaining her entire
life with 4% permanent residual physical disability, which
comes in the way of enjoyment of life. Therefore, it is just and
proper to award a sum of Rupees 5,000/- towards loss of
amenities of life to the Petitioner.
46. It is not disclosed by the Petitioner either in the
petition or in her evidence that, she was unmarried as on the
date of accident. However, this Tribunal has already held that,
at the time of accident, the Petitioner was a College student and
she was 22 years old, which implies that, at the time of
accident, the Petitioner was unmarried. Further, due to the
32 M.V.C.NO.2246/2014 C/w
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accidental injuries the Petitioner is suffering from permanent
residual physical disability of 4% to the whole body. Hence, this
Tribunal feels that, it is just, proper and necessary to award a
sum of Rupees 5,000/- towards loss of marriage prospects.
47. The Petitioner had sustained one grievous injury and
she was in the Hospital as an inpatient for 11 days and she
could not do any work at least for 2 months and thereby, she
deprived the income. Therefore, at the rate of Rupees 5,000/-
per month, a sum of Rupees 10,000/- is awarded towards loss
of income during the laid up period.
48. The P.W.1 has stated that, she has spent Rupees
3,00,000/- towards purchase of medicine and Hospital charges
and Rupees 20,000/- towards conveyance and nourished food
and Rupees 10,000/- towards attendant charges during
inpatient and outpatient period. In this regard, the Petitioner
has only produced Ex.P.8 Medical Bills 29 in numbers, which is
amounting of Rupees 96,497/-, Ex.P.9 Medical Prescriptions 17
in numbers and Ex.P.10 Advance Receipts 3 in numbers. The
Petitioner has taken treatment at Vijaya Nursing Home,
wherein, she was taken treatment as an inpatient from
01.02.2014 to 07.02.2014, i.e., for 7 days and from 29.04.2014
to 02.05.2014, i.e., for 4 days, totally, for 11 days, to the
fracture injury. Considering the nature of the injury and line of
treatment given to her, the possibility of spending the said
amount for the medicines cannot be doubted. Therefore, it is
necessary to award the said actual medical expenses of Rupees
96,497/- to the Petitioner.
33 M.V.C.NO.2246/2014 C/w
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49. Neither the P.W.1 nor P.W.3 stated anything about
the future medical treatment and its expenses. Further, the
Petitioner in her examination-in-chief itself has clearly stated
that, on 29.04.2014 she was admitted in the Hospital due to
severe pain on her leg and underwent surgery of removal of
implants. The same has also been stated by the P.W.3. The
same is also clear from the contents of Ex.P.7 Discharge
Summaries. Hence, the Petitioner is not entitled for any
compensation towards future medical expenses.
50. As the Petitioner was taken treatment as an
inpatient for 11 days, it is necessary to award a sum of Rupees
2,000/- towards conveyance charges, Rupees 2,000/- towards
attendant charges and Rupees 3,000/- towards food,
nourishment and diet charges etc.,
51. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. Rs. 43,200-00
arising out of 4% Disability
2. Pain and sufferings Rs. 20,000-00
3. Loss of amenities of life Rs. 5,000-00
Loss of Marriage prospects Rs. 5,000-00
Loss of income during laid
4. Rs. 10,000-00
up period
5. Actual medical expenses Rs. 96,497-00
6. Conveyance Rs. 2,000-00
7. Attendant Charges Rs. 2,000-00
Food, Nourishment &
8. Rs. 3,000-00
Diet charges
TOTAL Rs. 1,86,697-00
34 M.V.C.NO.2246/2014 C/w
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52. In all, the Petitioner is entitled for total compensation
of Rupees 1,86,697/- along with interest at the rate of 6% per
annum on the above said sum from the date of Petition till
payment.
53. ISSUE No.2 IN M.V.C. No.2247/2014 :- The P.W.2
has stated that, he was aged about 20 years. But, the Petitioner
has not produced any authenticated documents to consider his
age at the time of accident. Ex.P.1 FIR, Ex.P.5 Charge Sheet,
Ex.P.12 Wound Certificate, Ex.P.13 Discharge Summary and
Ex.P.14 Medical Bills disclosed that, at the time of accident, the
Petitioner was 21 years old. Hence, the age of the Petitioner is
considered as 21 years old at the time of accident.
54. The P.W.2 has stated that, he was doing 'Web
designing' job and getting monthly income of Rupees 10,000/-.
To consider the avocation at the time of accident, the Petitioner
has also not produced any authenticated documents. Though
the P.W.2 in his cross-examination has stated that, he has taken
any course in respect of web designing, to consider the same, no
scrap of paper has been produced. He has further stated that,
along with his friends, he has been doing web designing job and
getting Rupees 10,000/- per month income. Further, though he
has further clearly stated in his cross-examination that, himself
and his friends jointly are doing web designing job, but, the
Petitioner did not care to examine the said friends in the present
petition to show that, along with his friends, he is doing web
designing job and getting income of Rupees 10,000/- per month.
From this, it is made crystal clear that, the Petitioner has utterly
failed to prove his avocation and income at the time of accident.
35 M.V.C.NO.2246/2014 C/w
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However, he has stated in his cross-examination that, he has
completed PUC 1st year. As this Tribunal has already come to
the conclusion that, at the time of accident, the Petitioner was
21 years old. By considering the age of the Petitioner at the time
of accident and the educational qualification of the Petitioner,
this Tribunal feels that, it is just, proper and necessary to
consider the notional income of the Petitioner is of Rupees
5,000/- per month at the time of accident. Hence, the notional
income of the Petitioner is considered as Rupees 5,000/- per
month at the time of accident.
55. The P.W.2 has stated that, he had sustained grievous
injuries, such as, fracture of both bones of right leg and other
multiple injuries and he underwent surgery of CRIF with
interlocking nail under SA on 02.02.2014 and Post operative
period was uneventful and the Doctor, who has treated him
advised for strict bed rest, physiotherapy exercises, non-weight
bearing and for periodical checkups and accordingly, he is
attending the Hospital for periodical checkups.
56. As this Tribunal has already observed based on the
contents of Ex.P.12 Wound Certificate, Ex.P.13 Discharge
Summaries and Ex.P.17 X-rays 6 in numbers that, in the said
road traffic accident, the Petitioner had sustained fracture of
both bones of right leg and other multiple injuries, which is
grievous in nature and by admitting as an inpatient from
01.02.2014 to 06.02.2014, i.e., for 6 days, he took treatment to
the accidental injuries at Vijaya Nursing Home. It is clear from
the contents of Ex.P.13 Discharge Summaries that, during the
course of treatment, the Petitioner underwent CRIF and
interlocking nail done on 02.02.2014. As the Petitioner had
36 M.V.C.NO.2246/2014 C/w
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sustained fracture of both bones of right leg and other multiple
injuries, he required the regular follow-up treatment. Therefore,
the case made out by the Petitioner in respect of the periodical
checkup and follow-up treatment as per the advise of the Doctor
after his discharge from the Hospital and also bed rest, can very
well be believed and accept.
57. The P.W.2 has stated that, he was hale and healthy
and hard working prior to the accident and due to the
permanent disability sustained in the accident, he is not in a
position to do his web designing job and now, is idle without
doing any work. He has further stated that, due to permanent
disability sustained in the accident, he is unable to walk freely,
sit cross legged, to squat, to kneel, stand firmly, to climb steps
and to use Indian toilet and his right leg movement is quite
restricted and he is totally infirmed and he is no longer in a
position to do any work and pain is still persisting on his right
leg.
58. The Petitioner has examined the Assistant Professor
of Orthopaedic Surgeon, as P.W.4, who has stated in his
examination-in-chief that, recently, he examined the Petitioner
at Victoria Hospital on 22.06.2015 exclusively for disability
assessment and on clinical examination, he found the
disability, i.e., difficulty to walk on plain surface, walking on
slope, climbing stairs, standing on affected leg, squatting on
floor and sitting cross leg and the range of movement of knee
flexion - extension and ankle dorsiflexion planter flexion arc
and foot invesion - eversion arc and muscle strength of knee is
flexor muscles and extensor muscles, ankle is planter flexor
muscles and Dorsiflexion muscles and the foot is invertor
37 M.V.C.NO.2246/2014 C/w
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muscles and evertor muscles. He has further stated that, based
on the findings and guidelines and Gazette Notification, the
Petitioner suffers the permanent residual physical disability of
about 28.7% of left right lower limb and 14.35% of whole body.
The P.W.4 has produced Ex.P.20 OPD Card and Ex.P.21 X-ray
Film.
59. But, based on the oral version of P.W.1 and P.W.4
coupled with the contents of Ex.P.20 and Ex.P.21, it cannot be
believed and accept that, due to the said accidental injuries, the
Petitioner is suffering from permanent residual physical
disability of 28.7% of right lower limb and about 14.35% to the
whole body, as, the P.W.4 in his examination-in-chief itself has
clearly stated that, radiological examination revealed the
fractures of tibia and fibula of right leg shows union with
implants in situ. More so, the P.W.4 is not a treated Doctor and
the same has been clearly stated by the P.W.4 in his cross-
examination by stating that, he has not treated the Petitioner.
Even the P.W.4 has not suggested the Petitioner to take further
treatment, when he came to their Hospital on 22.06.2015 for
assessment of disability. The same has also been clearly stated
by the Petitioner in his cross-examination itself. Further, the
P.W.4 in his cross-examination has clearly stated that, he has
not consulted the Doctors, who have treated the Petitioner and
since the Petitioner has reached maximum stage of recovery, he
has not suggested for any medicines for muscle strength. He
has further clearly stated in his cross-examination that, the
Petitioner can do his job by sitting without any difficulty and the
fractures are well united. Furthermore, as this Tribunal has
already come to the conclusion that, the Petitioner has not
38 M.V.C.NO.2246/2014 C/w
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established his avocation at the time of accident, i.e., web
designing job. More so, the P.W.2 in his cross-examination has
clearly stated that, he has completed PUC 1st year and he has
taken any course in respect of web designing and his friends
and himself jointly are doing web designing job. From this, it
appears that, the said accidental injuries no way caused
inconvenience to the Petitioner to continue his job. Therefore,
the said extent of permanent residual physical disability of
about 14.35% of whole body relating to the Petitioner as stated
by the P.W.4 is an exaggeration and on higher side and as such,
it is not accepted.
60. However, in the said road traffic accident, the
Petitioner has sustained fracture of both bones of right leg and
other multiple injuries and by admitting as an inpatient,
implants were inserted during the course of treatment and he
took treatment to the accidental injuries at Vijaya Nursing
Home. By considering all these material facts, this Tribunal
feels that, due to the accidental injuries, the Petitioner is
suffering from permanent residual physical disability of 10% to
the whole body, which is believable and acceptable one.
61. As this Tribunal has already come to the conclusion
that, the permanent residual physical disability of the Petitioner
is of 10%. This would certainly come in the way of the future life
of the Petitioner and thereby, his income to that extent would be
definitely reduced. Therefore, the Petitioner is entitled for future
loss of income arising out of the permanent residual physical
disability of 10%.
39 M.V.C.NO.2246/2014 C/w
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62. As this Tribunal has already come to the conclusion
that, the age of the Petitioner was 21 years at the time of
accident. The multiplier corresponding to the said age as per
Sarala Varma's case is 18.
63. As the Petitioner is suffering from permanent
residual physical disability of 10% to the whole body. The
notional income of the Petitioner is already considered as
Rupees 5,000/- per month. Therefore, the loss arising out of the
said 10% disability for monthly income of Rupees 5,000/- by
applying multiplier 18 would comes to Rupees 1,08,000/-, i.e.,
(Rupees 5,000/- x 12 x 18 x 10%).
64. As per Ex.P.12 Wound Certificate and evidence of
P.W.2 and P.W.4, the Petitioner had sustained one grievous
injury. The Petitioner was in the Hospital as an inpatient from
01.02.2014 to 06.02.2014, i.e., for 6 days. Due to the said
injuries, the Petitioner could have definitely suffered a lot of
pain and agony. Considering the said aspects, it is just, proper
and necessary to award a sum of Rupees 25,000/- towards pain
and suffering.
65. As it is already observed that, the age of the
Petitioner was 21 years. He has to lead remaining his entire life
with 10% permanent residual physical disability, which comes
in the way of enjoyment of life. Therefore, it is just and proper to
award a sum of Rupees 10,000/- towards loss of amenities of
life to the Petitioner.
66. It is not disclosed by the Petitioner either in the
petition or in his evidence that, he was unmarried as on the
40 M.V.C.NO.2246/2014 C/w
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date of accident. However, this Tribunal has already held that,
at the time of accident, the Petitioner was completed his
education and he was doing work. By considering the age and
status of the Petitioner at the time of accident, it appears that,
the Petitioner was unmarried. Further, due to the accidental
injuries, the Petitioner is suffering from permanent residual
physical disability of 10% to the whole body. Hence, this
Tribunal feels that, it is just, proper and necessary to award a
sum of Rupees 5,000/- towards loss of marriage prospects.
67. The Petitioner had sustained one grievous injury and
he was in the Hospital as inpatient for 6 days and he could not
do any work at least for 2 months and thereby, he deprived the
income. Therefore, at the rate of Rupees 5,000/- per month, a
sum of Rupees 10,000/- is awarded towards loss of income
during the laid up period.
68. The P.W.2 has stated that, he has spent Rupees
2,00,000/- towards purchase of medicine and Hospital charges
and Rupees 20,000/- towards conveyance and nourished food
and Rupees 10,000/- towards attendant charges during
inpatient and outpatient period. In this regard, the Petitioner
has only produced Ex.P.14 Medical Bills 37 in numbers, which
is amounting of Rupees 75,267-38, Ex.P.15 Medical
Prescriptions 10 in numbers and Ex.P.16 Advance Receipts 2 in
numbers. The Petitioner has taken treatment at Vijaya Nursing
Home, wherein, he was taken treatment as an inpatient from
01.02.2014 to 06.02.2014, i.e., for 6 days to the fracture injury.
Considering the nature of the injury and line of treatment given
to him, the possibility of spending the said amount for the
medicines cannot be doubted. Therefore, it is necessary to
41 M.V.C.NO.2246/2014 C/w
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award the said actual medical expenses of Rupees 75,267-38 to
the Petitioner, which is rounded off Rupees 75,267/-.
69. The P.W.1 has stated that, he needs to undergo one
more surgery for removal of implants fixed at the time of
surgery, for which, he has to spent Rupees 50,000/-. The P.W.4
has stated that, the Petitioner is advised to undergo another
operation for implant removal from right tibia. It is clearly
mentioned in Ex.P.13 Discharge Summary that, the Petitioner
underwent surgery of CRIF with interlocking nail under SA on
02.02.2014, which clearly disclosed about the insertion of
implants in situ. The said implants have to be removed and
therefore, the Petitioner requires the amount for future medical
expenses. Neither the Petitioner nor P.W.4 produced the
estimation for removal of implants. In this regard, the P.W.2 has
stated that, he has not produced any documents to show that,
he requires the future medical treatment for removal implants,
which costs of Rupees 50,000/-. The P.W.4 in his cross-
examination has stated that, in their Hospital, for future
medical treatment to the Petitioner, Rupees 5,000/- to Rupees
10,000/- is required. By considering the nature of injury and
line of treatment and also by considering the above said
reasons, this Tribunal feels that, it is just, proper and necessary
to award future medical expenses of Rupees 10,000/-.
70. As the Petitioner was taken treatment as an
inpatient for 6 days, it is necessary to award a sum of Rupees
1,000/- towards conveyance charges, Rupees 1,000/- towards
attendant charges and Rupees 2,000/- towards food,
nourishment and diet charges etc.,
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71. In this way, the Petitioner is entitled for the following
amount of compensation:-
Sl. No. Compensation heads Compensation amount
Loss of future income
1. Rs. 1,08,000-00
arising out of 10% Disability
2. Pain and sufferings Rs. 25,000-00
3. Loss of amenities of life Rs. 10,000-00
4. Loss of marriage prospects Rs. 5,000-00
Loss of income during laid up
5. Rs. 10,000-00
period
6. Actual medical expenses Rs. 75,267-00
7. Future medical expenses Rs. 10,000-00
8. Conveyance Rs. 1,000-00
9. Attendant Charges Rs. 1,000-00
Food, Nourishment &
10. Rs. 2,000-00
Diet charges
TOTAL Rs. 2,47,267-00
72. In all, the Petitioner is entitled for total compensation
of Rupees 2,47,267/- along with interest at the rate of 6% per
annum on the above said sum (excluding future medical
expenses of Rupees 10,000/-) from the date of Petition till
payment.
73. While answering Issue No.1, in both the cases, this
Tribunal has already come to the conclusion that, due to high
speed, rash and negligent manner of the driving of the offending
Tata Sumo bearing Registration No.KA-08-M-0736 by its driver
itself, the said road traffic accident was taken place, wherein,
the Petitioners M.V.C.No.2246/2014 and M.V.C.No.2247/2014
had sustained grievous injuries. The Petitioners have clearly
mentioned in the cause title of the petitions that, the cover Note
No.C1401532311003076, validity from 28.04.2013 to
27.04.2014. The Respondent No.1 in his written statement has
43 M.V.C.NO.2246/2014 C/w
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clearly admitted that, the particulars furnished regarding the
ownership of the vehicle and the same being insured with the
Respondent No.2 vide Policy No.C1401532311003076, valid
from 28.04.2013 to 27.04.2014 and at the time of accident, the
Insurance Policy was in force. The Respondent No.2 in his
written statement has clearly admitted that, having insured the
vehicle involved in the accident. From these material facts, it
clearly goes to show that, at the time of accident, the
Respondent No.1 was a registered owner and the Respondent
No.2 was an insurer of the offending Tata Sumo bearing
Registration No.KA-08-M-0736 and its Insurance Policy was
valid, which covers the date of accident. There is no allegation
leveled as against the driver of the offending Tata Sumo in
Ex.P.5 Charge Sheet that, he was not having a valid and effective
driving licence to drive such class of vehicle at the time of
accident. The violation of the terms and conditions of the
admitted Insurance Policy is not proved by the Respondent No.2.
Under such circumstances, the Respondent No.1 being a
registered owner and the Respondent No.2 being an insurer of
the said offending Tata Sumo bearing Registration No.KA-08-M-
0736, are jointly and severally liable to pay the above said
compensation and interest to the Petitioners in both the cases.
Since the Respondent No.2 was an insurer, it shall indemnify
the Respondent No.1. Hence, Issue No.2 in
M.V.C.No.2246/2014 and M.V.C.No.2247/2014 are answered
accordingly.
74. ISSUE No.3 IN M.V.C.No.2246/2014 and
M.V.C.No.2247/2014 :- For the aforesaid reasons, I proceed to
pass the following,
44 M.V.C.NO.2246/2014 C/w
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ORDER
The petition filed by the Petitioners in M.V.C.No.2246/2014 and M.V.C.No.2247/2014 under Section 166 of the Motor Vehicles Act, 1989, are hereby partly allowed with costs.
The Petitioner in M.V.C.No.2246/2014 is entitled for
compensation of Rupees 1,86,697/- with interest at the rate of 6% p.a. from the date of petition till payment, from the Respondent No.2.
The Petitioner in M.V.C.No.2247/2014 is entitled for
compensation of Rupees 2,47,267/- with interest at the rate of 6% p.a. (excluding future medical expenses of Rupees 10,000/-) from the date of petition till payment, from the Respondent No.2.
The Respondent No.2 shall deposit the said compensation with interest in this Tribunal, within one month from the date of this order, in both the cases.
In the event of deposit of compensation and interest in both the cases, entire amount shall be released in favour of the Petitioners of both cases, 45 M.V.C.NO.2246/2014 C/w 2247/2014 (SCCH-7) through account payee cheques, on proper identification.
Advocate's fee is fixed at Rupees 1,000/- in each case.
Original copy of the Judgment shall be kept in M.V.C.No.2246/2014 and the copy of the same shall be kept in M.V.C.No.2247/2014.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 16th day of October, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONERS :-
P.W.1 : S.Priyanka
P.W.2 : B.Bhaskar
P.W.3 : Dr. S.Ramachandra
P.W.4 : Dr. S.Ramachandra
2. DOCUMENTS MARKED BY THE PETITIONERS :-
Ex.P.1 True Copy of FIR
Ex.P.2 True Copy of Complaint
Ex.P.3 True Copy of Spot Panchanama
Ex.P.4 True Copy of MVI Report
Ex.P.5 True Copy of Charge Sheet
Ex.P.6 True copy of Wound Certificate
46 M.V.C.NO.2246/2014 C/w
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Ex.P.7 Discharge Summaries (2 in nos.)
Ex.P.8 Medical Bills (29 in nos.)
Ex.P.9 Medical Prescriptions (17 in nos.)
Ex.P.10 Advance Receipts (3 in nos.)
Ex.P.11 X-ray films (6 in nos.)
Ex.P.12 True copy of Wound Certificate
Ex.P.13 Discharge Summary
Ex.P.14 Medical Bills (37 in nos.)
Ex.P.15 Medical Prescriptions (10 in nos.)
Ex.P.16 Advance Receipts (2 in nos.)
Ex.P.17 X-ray Films (6 in nos.)
Ex.P.18 OPD Card
Ex.P.19 X-ray Film
Ex.P.20 OPD Card
Ex.P.21 X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
- Nil -
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
- Nil -
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.