Bangalore District Court
Anusuya vs Gopal Krishna C.O on 6 December, 2019
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 6TH DECEMBER 2019
PRESENT: SMT. SHARMILA S. B.Com, LLB.,
C/C XXIV ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
M.V.C No.1658/2018
PETITIONER : Anusuya
W/o Ananthaiah,
Aged about 30 years,
Residing at # 91,
Venkategowdanapalya,
K.Kallali (P), C.S.Pura (H),
Gubbi (T),
Tumkur District.
(By Sri.H.N.Raveesha, Adv.,)
V/s
RESPONDENTS : 1. Gopal Krishna C.O.
S/o Late Obala Shetty,
Chandrashekarapura,
Gubbi Taluk,
Tumkur District
(RC owner of passenger ACE
autorickshaw bearing reg.No.KA-
06-D-7269)
(Sri.C.V.-Advocate)
2 MVC No.1658/2018
SCCH 26
2. Chola MS General Insruance
co., Ltd.,
Unit 4, 9th Floor (Level-06),
Golden Height complex,
59th C cross, Industrial suburb,
Rajajinagar 4th block,
Bangalore-560 010
(Policy No.3368/00031132/000/01
Valid from 5-7-2017 to 4-7-2018)
(By Smt.Nagarathna P.- Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioner under Section 166 of Motor Vehicles Act, 1989, claiming compensation of Rs.40,00,000/- for the injuries sustained in the alleged accident.
2. It is the case of the Petitioner that:
On 14.12.2017 at about 10.00 am., the petitioner was proceeding in a Passenger APE Autorickshaw bearing Reg.No.KA-06-D-7269 along with others, the same was driven by its driver on C.S.Pura Kalluru Road, in a rash and negligent manner endangering to human life, without observing any of the traffic rules and regulations, 3 MVC No.1658/2018 SCCH 26 while so proceeding reached near Government Hospital, Gubbi Taluk, Tumakuru, due to his negligence driving lost control and the said Autorickshaw turtle. Consequent to which the petitioner and other inmates of the said autorickshaw fell down and sustained grievous injuries to all over the body.
3. Immediately after the accident, the petitioner was shifted to C.S.Pura General Hospital, and took treatment. Thereafter shifted to NIMHANS Hospital, Bangalore and took treatment as an inpatient. Further she was shifted to Victoria Hospital, thereafter Abhinandan Hospital and took treatment as an inpatient. So far the petitioner has spent more than Rs.10,00,000/- towards medicine, conveyance, nourishment and other incidental charges etc.
4. It is the case of the petitioner that prior to the accident she was working as Helper in Anganavadi, drawing a salary of Rs.4,000/- per month, with the said 4 MVC No.1658/2018 SCCH 26 earnings the petitioner was maintaining her family members, since the petitioner was the only earning member in the family. On account of the said accidental injuries, the petitioner till today and in future cannot attend to her work resulted in permanent loss of earning, earning capacity and put to great financial hardship. Hence, the petitioner has claimed compensation of Rs.40,00,000/- against Respondents.
5. After service of summons, Respondent No.2 appeared through counsel and filed its objection statement. In spite of service of summons, Respondent No.1 remained absent, hence placed exparte.
6. Respondent No.2 in its objection statement denied petition averments and interalia admits that it had issued the policy against the Ape Piaggio bearing No.KA-06-7269 valid from 5.7.2017 to 4.7.2018, however the liability of the 2nd respondent shall be strictly subject to the terms and conditions, exceptions and 5 MVC No.1658/2018 SCCH 26 endorsements of the policy, compliance of 64VB of M.V.Act and law governing thereto and such other laws for the time being in force. Further this respondent seeks protection available U/Sec.134(c) and 158(6) of M.V.Act. Further this Respondent contends that, the petition is an after thought, there has been a delay of 6 days in filing the petition. The petitioner has not explained the reasons for delay. Further contends that the driver of the insured vehicle was not having valid driving license at the time of accident. Except this all other defences are formal in nature and prays to dismiss the claim petition.
7. On the basis of the above pleadings, My learned predecessor has framed the following:
::ISSUES::
1. Whether Petitioner proves that, he has sustained injuries on account of road traffic accident due to rash and negligent driving of Autorickshaw bearing Reg.No.KA-06-D-
7269 near Government Hospital, C.S.Pura Kalluru Road, C.S.Pura, Gubbi Taluk, Tumakuru dated 14.12.2017 at about 10.00 am., as alleged in the petition?
6 MVC No.1658/2018
SCCH 26
2. Whether Petitioner is entitled for compensation as prayed in the petition? If so, from which Respondent?
3. What Order or Award?
8. In order to prove the above Issues for consideration, Petitioner examined himself as PW-1 and got marked Ex.P.1 to Ex.P.25, Ex.P29 to Ex.P40 documents. Dr.T.S.Raghavendra, Consultant Orthopaedic Surgeon, Hemavathi Othopaedic & Trauma Centre, Tumkur, examined as PW2 and got marked Ex.P26 to Ex.P40 documents. Per contra, the Legal Executive of 2nd respondent examined as RW1 and got marked Ex.R1 to Ex.R3 documents. The Superintendent, Tumkuru RTO, examined as RW2 and got marked Ex.R4 and Ex.R5 documents.
9. Heard the arguments of learned counsel for the Petitioner and Respondents. Learned Counsel for the Petitioner's relied on a decisions reported in; 7 MVC No.1658/2018
SCCH 26
1) AIR 2018 Supreme Court 2662 Amrit Paul Singh and another Vs Tata AIG General Insurance co., Ltd., and others
2) 2018 ACJ 2430 Rani and others Vs National Insurance co., Ltd., and others
3) 2018 ACJ 2436 Santosh Devi and tohers Vs Mahaveer Singh and others
4) 2018 ACJ 33 Oriental Insurance co., Ltd., Vs Mahaboob Ali Khan and another
5) 2018 ACJ 2503 Mohan Kumar and another Vs K.N.Narayanasamy and another
6) 2018 ACJ 1009 8 MVC No.1658/2018 SCCH 26 S.Thangaraj Vs National Insurance co., Ltd.,
7) 2018 ACJ 1011 Jagdish Vs Mohan and others
8) 2018 ACJ 1981 Gregory Vanlalfinga Vs Lalbiaktluangi and another
10. Learned counsel for the 2nd respondent relied on a decisions reported in:
i) Misc.First Appeal No.1165/2010(MV) ICICI Lombard General Insurance co., Ltd., Vs Smt.T.Padma and another
ii) AIR 2018 SC 2662
iii) 2018(1) KLR 249, OIC V/s Annemma
11. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order for the
following:
9 MVC No.1658/2018
SCCH 26
::REASONS::
12. Issue No.1 and 2: As these two issues are
interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
13. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioner to prove that the alleged accident took place because of the negligence on the part of driver of the Passenger carrying Auto bearing No.KA-06-D-7269. In order to prove the above said issues, Petitioner examined herself as PW-1, and Doctor as PW2, got marked in all 40 documents.
14. In order to prove this fact, she has produced Police records which are marked as Ex.P.1 to Ex.P.14 i.e., FIR, Complaint, Mahazar, IMV report, Charge Sheet, further statement of complainant, Statement of witnesses and Order sheet in CC.No.160/2018. If we peruse the oral and documentary evidence adduced by the Petitioner 10 MVC No.1658/2018 SCCH 26 i.e., Ex.P.1 FIR with Complaint, which clearly discloses that, on 14.12.2017 at about 10.00 am., she was proceeding in a Passenger Ape Autorickshaw bearing Reg.No.KA-06-D-7269 along with others, the same was driven by its driver on C.S.Pura Kalluru Road, in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations while so proceeding reached near Govt. Hospital, Gubbi Taluk, Tumakuru due to his negligence driving lost control and the said auto turtle due to which the petitioner and other inmates of the said auto fell down and sustained grievous injuries all over the body.
15. PW-1 has been cross-examined by the 2nd Respondent's counsel which consists of bear suggestions and denials. Further PW-1 has denied the negligence on her part in the alleged accident. Per contra in order to disprove the contentions of the Petitioner neither the owner nor the driver of the offending vehicle were stepped 11 MVC No.1658/2018 SCCH 26 into the witness box nor produced any documents. Moreover on perusal of Ex.P.14 Certified copy of the order sheet in CC No.160/2018, wherein it reveals that the driver of the offending vehicle was pleaded guilty and sentenced to pay fine.
16. I have carefully perused the contents of Charge Sheet, Mahazar and IMV Report clearly indicates involvement of this offending vehicle in this accident and the Spot Mahazar clearly shows that, the accident occurred at CS Pura Kallur road wherein the driver of the Auto drove his vehicle in a rash and negligent manner due to which the Auto turtle and the inmates of the vehicle were fell down and sustained grievous injuries. Admittedly at the time of the accident, there were no other vehicles moving adjacent to the Auto and there was sufficient space for this Auto to move further. But it seems the driver of the Auto who came in rash and negligent manner due to which it was turned turtle. This 12 MVC No.1658/2018 SCCH 26 fact shows that, the alleged accident was due to rash and negligent driving by the driver of the Auto insured under Respondent No.2.
17. The only contention of the 2nd respondent that the insured vehicle was not having valid permit to ply at the place of the alleged accident. The vehicle was permitted to ply only within 5 Kms of Gubbi Town limits and was carrying passengers more than the seating capacity.
18. In order to prove its contention, the legal executive of the 2nd respondent examined as RW1 and got marked Ex.R1 to Ex.R3 documents i.e., copy of the Policy, 'B' Register Extract and permit. During the course of cross examination RW1 admits that at the time of accident policy is in force. The vehicle was not valid permit to ply the vehicle on the road.
19. Further the Superintendent, Tumkuru RTO examined as RW2 and got marked Ex.R4 and Ex.R5 13 MVC No.1658/2018 SCCH 26 documents i.e., Authorization letter and copy of the permit extract. According to RW2 this accident took place within the jurisdiction of Chandrashekhar puram police station. As per Ex.R5 the vehicle can ply within the limits of 5 Km from the Gubbi town. During the course of cross examination RW2 deposed that Chandrashekarpura comes within the jurisdiction of Gubbi Taluk. The vehicle may be driven in Chandrashekarpura since the owner of the vehicle residing there.
20. Learned counsel for the 2nd respondent relied on a decision reported in ILR 2012 KAR 6065 between Sri.B.T.Venkatesh Vs Sri Jagadeesh Kumar and others wherein Hon'ble High Court of Karnataka held that:
" Motor Vehicles Act, 1988-Section 173(1)- Accident claim-Judgement & Award-Tribunal exonerating the Insurance Company from satisfying the award-Appealed against-violation of policy conditions in taking the Autorickshaw, the offending 14 MVC No.1658/2018 SCCH 26 vehicle outside the Town Municipal limits within which the same was Authorised to be used-Accident has taken place beyond the Town Municipal limits- Held, the insurance company is exonerated from paying the compensation on the ground that there is violation of the policy conditions in taking the vehicle outside the town municipal limits within which the autorickshaw was authorized to be used. Unfortunately, the accident has taken place beyond the Town Municpal limits within which the owner of the offending Autorickshaw was required to ply the same. The findings of the Tribunal is clear that, there is violation of the policy conditions by the owner and driver of the offending vehicle which is insured with the 3rd respondent. In the light of the policy conditions being violated the question of fastening the liability on the Insurance company to indemnify the liability of paying compensation does not arise". 15 MVC No.1658/2018
SCCH 26
21. But contrary to the above, in a recent decision reported in :
1. 2016 ACJ 970 between Reliance General Insurance Co., Ltd., Vs Devibai and another wherein our Hon'ble High Court of Karnataka, Kalaburgi Bench held that:
"Motor Vehicles Act, 1988, Section 147(1)-Motor Insurance-Policy-Breach of -Liability of insurance company-Insurance company contended that vehicle has to ply within the limits mentioned in the policy but at the time of accident it was plied outside the limits specified in the policy and it amounts to violation of the policy- Whether there was breach of policy and insurance company is absolved from liability-Held:no; if accident takes place outside the limits mentioned in the policy that itself will not amount to violation of policy.
22. Further in 2017 ACJ 1860 between Habeeba Khanum Vs Hulageshi and another Hon'ble High Court of Karnataka held that :
"Motor Vehicles Act 1988, Section 149(2)(a)(i)(c)- Motor insurance-permit-Route permit-defences available to insurance company-insurance company disputes its liability on the ground that driver of offending auto rickshaw had violated terms and conditions of policy by deviating from the permitted route as he was plying the 16 MVC No.1658/2018 SCCH 26 vehicle outside town 'H' whereas the vehicle had permit to ply within town 'H' only-Section 149(2) provides defence to insurance company when vehicle is used for a purpose not allowed by permit under which the vehicle is used but it is distinct from breach of conditions attached to the permit-whereas Tribunal was justified in absolving insurance company from liability-Held: No; deviation from permitted route can be construed as breach of permit but not of the purpose allowed in the permit.
23. Again in a decision reported in 2017 ACJ 650 between Mooganna and others Vs Iffco Tokio General Inurance Co., ltd., and another it was held that;
"Motor Vehicles Act 1988, Section 149(2)(a)-Motor insurance-policy-breach of-Defences available to insurance company-Tribunal held that that autorickshaw was used beyond the permitted area at the time of accident and as there was beach of permit condition as stated in section 149(2)(a)(i)(c) exonerated the insurance company from liability-No condition as stated in section 149(2)(a)(i)(c) is specified in the policy-Contention that defence available under section is a defence available in law and there is no need to specify the said condition in the policy-Whether is a condition precedent to raise the defence of breach of any of those conditions and Tribunal erred in absolving the insurance company from liability- Held : Yes.
24. Further in 2017 ACJ 635 between National Insurance Co., Ltd., Vs Paramjit Kaur and others 17 MVC No.1658/2018 SCCH 26 Hon'ble High Court of Punjab and Haryana at Chandigarh held that:
"Motor Vehicles Act 1988, Section 149(2)(a)(i)(c)- Motor insurance-Permit-Route permit-Violation of - Liability of insurance company Insurance company disputes its liability on the ground that offending truck had route permit to ply in the state of Himachal Pradesh whereas it was being plied in the State of Punjab- Whether there was violation of permit condition and insurance company is absolved from liability-Held; no; mere fact that offending truck was being plied in the State of Punjab though it had route permit for the state of Himachal Pradesh will not constitute a violation of the condition of permit as the insurance company failed to establish that truck was being used for a purpose not allowed by the permit.
25. Further it was also held in 2017 ACJ 168 between ICICI Lombard General Insurance Co.,Ltd., Vs Vijaya Chhabra and others Hon'ble High Court of Punjab and Haryana at Chandigarh held that:
"Motor Vehicles Act, 1988, Section 149(2)(a)(i)(c)- Motor insurance-permit-Route permit-violation of - liability of insurance company-insurance company disputes its liability on the ground that offending truck was being plied in U.T.Chandigarh whereas permit was issued for State of Haryana thus the vehicle was plied on a route not covered by the permit-whether there was violation of policy condition and insurance company is 18 MVC No.1658/2018 SCCH 26 absolved from liability-Held: no:mere fact that truck was being operated in U.T.Chandigarh, though it had route permit only for the state of Haryana, will not constitute a violation of the policy as the insurance company failed to establish that truck was being used for a purpose not allowed by the permit.
26. In view of the consistent ratio of law laid down in the cases referred above, mere this fact that the Bus in question was being operated other than the route permitted to ply though it has route permit only within the limits mentioned in the permit, will not constitute the violation of the condition of the permit as the insurance company has not been able to establish that the vehicle in question was being used for the purpose not allowed by the permit. I have perused the decisions and principles enunciated, it cannot be said that there is violation of the terms and conditions of the insurance policy. Accordingly, Respondent No.2 being the insurer and Respondent No.1 being the R.C.Owner of the Auto 19 MVC No.1658/2018 SCCH 26 bearing Reg.No.KA-06-D-7269 are jointly and severally liable to pay compensation to the Petitioner.
27. Coming to the question of quantum of compensation to be assessed, according to the Petitioner, she was aged 30 years at the time of the accident. In order to prove her age, Petitioner has produced Ex.P25 Election ID Card, wherein the birth year of the petitioner mentioned as 1988 and the accident took place in the year 2017. But on perusal of the Ex.P7 Wound Certificate the age of the petitioner mentioned as 33 years. Hence, it is considered that, Petitioner was aged 33 years as on the date of the accident. As per the Sarla Varma's Case, the proper multiplier applicable to the age group of 31 to 35 years is 16.
28. Petitioner has contended that, she was working as Helper in Anganavadi, drawing a salary of Rs.4,000/- per month. In order to substantiate her contention, the Petitioner has produced Ex.P24 20 MVC No.1658/2018 SCCH 26 Honorarium Certificate, Appointment Order, Resignation letter. Though Petitioner had produced all these records, Court cannot exactly held what was the actual income for a month. But anyhow since the Petitioner is working as Helper in Anganavadi and now she has resigned the job due to the injuries sustained by her in the accident, this Court deems fit to deviate a little bit from other cases and hold that the notional income of the Petitioner is taken as Rs.4,000/- p.m. for calculating compensation.
29. Petitioner had sustained kyphotic deformity of TL spine for which she got operated with posterior stabilization of spine with pedicle screws at Sai Ambica Hospital, for D12 L1 fracture with complete spinal cord injury i.e., total paraplegia.
30. These injuries are clearly mentioned in the Ex.P.7 Wound Certificate issued by C.S.Pura Hospital, Gubbi, Ex.P.16 Discharge Summary issued by District 21 MVC No.1658/2018 SCCH 26 Hospital, Tumkur wherein she took treatment on 14.12.2017, Ex.P17 Discharge Summary issued by Sai Ambica Hospital, wherein she took treatment from 15.12.2017 to 16.01.2018, Ex.P18 Discharge Summary issued by Abhinandan Hospital, from 18.01.2018 to 02.02.2018 and Ex.P19 Discharge Summary issued by Hemavathi Hospital, Tumkur wherein she took treatment from 18.04.2019 to 23.04.2019.
31. In order to prove the nature of the injuries and treatment taken by her, Petitioner has adduced the evidence of PW-2 Dr.T.S.Raghavendra, Consultant Orthopaedic Surgeon, Hemavathi Orthopaedic & Trauma Center, Tumkur, and got marked Ex.P26 to Ex.P18 i.e., Case Sheet, X-ray and OPD sheet. PW-3 has assessed Permanent Physical Impairment with respect to whole body at 100%. During the course of his cross- examination he deposed that, he has no personal knowledge about the line of treatment taken by the 22 MVC No.1658/2018 SCCH 26 petitioner. Non movement of limbs is due to pain and weakness. There is loss of sensation in both lower limbs and inability to move the both lower limbs. Patient undergoing regular physiotherapy, with implant removal and restabilization of spine with pedicle screws and D12 Lt decompression.
32. At the time of arguments learned counsel for the Petitioner relied on a decision reported in 2018 ACJ 2503 between Mohan Kumar and another Vs K.N.Narayanaswamy and another wherein Hon'ble High Court of Judicature at Madras held that:
"Quantum-Injury-Paraplegia-Injured suffered compression burst fracture D12, fracture right clavicle and Le Fort fracture type III leading to paraplegia-injured aged 34 years, a havildar in the Army, drawing Rs.20,065/- per month, remained under treatment for about 2 years in 3 hospitals, became vegetative living being, bedridden forever and dependent on others for his 23 MVC No.1658/2018 SCCH 26 day to day chores-Military hospital assessed 100 per cent disablement and he was invalidated out of service- Tribunal awarded Rs.4,57,137/- -Appellate court taking salary at Rs.20,000/- per month, added 50% for future prospects, adopted multiplier of 16 and allowed Rs.57,60,000/- for loss of earning capacity, Rs.50,000/- for transport expenses, Rs.50,000/- for extra nourishment, Rs.75,000/- for pain and suffering, Rs.1,22,137/- for medical expenses, Rs.1,00,000/- for future medical expenses, Rs.75,000/- for loss of enjoyment of amenities, Rs.6,00,000/- for attendant charges, Rs.50,000/- for loss of consortium to claimant and Rs.5,00,000/- for pain and suffering, trauma, loss of amenities and comfort and loss of consortium to wife- award of Rs.4,57,137/- enhanced to Rs.73,82,137/-."
33. In the instant case the injuries suffered by the Petitioner resulted in permanent disability. I have perused entire medical records and the evidence of PW-2, 24 MVC No.1658/2018 SCCH 26 where he clearly admitted that there is loss of sensation in both lower limbs and inability to move the both lower limbs. Moreover, the accident took place in the year 2017 and the PW-2 examined the Petitioner on 08.12.2018, i.e., after one year from the date of accident. Further he admitted that he has assessed Permanent physical disability of 100%. Based on the evidence and also by observing the condition of the Petitioner on the basis of the documents, this Court accepts the disability suffered by the Petitioner as 80% to the lower limbs.
34. Petitioner has produced Medical Bills amounting to Rs.9,59,584/- marked as Ex.P.21. Learned counsel for the 2nd Respondent at the time of arguments disputed the receipt No.5735 dated 20.12.2017 stating that the petitioner has paid advance amount of Rs.15,000/- and as per Receipt No.5707 Rs.75,000/- was paid in advance, for which she admitted. Further in the calculation sheet Rs.50,000/- was entered twice. The 25 MVC No.1658/2018 SCCH 26 receipts for Rs.550/- in Sl.No.128, Rs.550/- at Sl.No.131, Rs.3,750/- at Sl.No.132, Rs.550/- at Sl.No.132, Rs.42,000/- at Sl.No.134, Rs.1,800/- at Sl.No.135, Rs.200/- at Sl.No.136, Rs.770/- at Sl.No.137, Rs.400/- at Sl.No.138, Rs.200/- at Sl.No.140, Rs.1231/- at Sl.No.145, Rs.4,800/- at Sl.No.146, Rs.750/- at Sl.No.158, Rs.500/- at Sl.No.159, which are hand written bills does not contains the seal of the hospital, cannot be considered. Further the ambulance bills not contains any details of time, distance and the place from where to where the petitioner has gone for treatment. Hence, those bills cannot be considered and those amounts have to be deducted. The above said bills counted in total comes to Rs.1,23,693/-. Hence, out of total amount of Rs.9,59,584/- the amount of Rs.1,23,693/- has to be deducted, then it comes to Rs.8,35,891/- rounded off to Rs.8,36,000/-.
26 MVC No.1658/2018
SCCH 26
35. In this case, the injured claimant suffered fracture and compression of the spinal cord and has been diagnosed as a paraplegic injury. According to Webster Dictionary Paraplegic means "Complete paralysis of the lower half of the body usually resulting from damage to the spinal cord'. The disability assessed in this case is 100%. The paraplegic patients are known to go into severe depressions and some times result is suicide. Paraplegics are known to have severe radiating pain in both legs and back which is neurological in origin. In addition to this they suffer from multiple bladder infections which may lead to superadded kidney infection and also injuries to both legs due to loss of sensation. Besides which a previously waling about patient sees a futile future and this leads him to suicidal tendency. The neuronal irritation gives rise to severe burning pains in both the legs. As pointed out earlier, the petitioner has loss of sensation in both lower limbs and inability to 27 MVC No.1658/2018 SCCH 26 move the both lower limbs and she regularly requires catheterization. She requires an attendant for 24 hours.
36. Coming to the question of awarding compensation under the head pain and sufferings is concerned, Petitioner is aged 33 years and she had suffered not only injures on account of accident but also suffers in mind and body on account of the accident throughout her life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. When compensation is to be awarded from pain and suffering and loss of amenities of life the special circumstances of the claimant have to be taken in to account including her age, the unusual deprivation she has suffered and the effect thereof on her future life. In view of this I hold that, Petitioner is entitled for compensation of Rs.2,00,000/- under the head pain and sufferings. As the compensation has been granted on account of 80% loss of earning 28 MVC No.1658/2018 SCCH 26 capacity, separate amount cannot be granted on account of loss of amenities of life.
37. The Petitioner is entitled for compensation under the following heads:-
Sl.No. Head of Compensation Amount in Rs.
I. PECUNIARY DAMAGES
(Special Damages)
1. Expenses relating to:
a) to treatment, hospitalization, 8,36,000-00 medicines, transportation
b)nourishing food and 1,00,000-00 miscellaneous expenditure
2. Loss of earnings which the -
injured would have made had she not been injured, comprising:
a) Loss of earnings during period -
of treatment
b) Loss of future earnings on 6,15,000-00
account of permanent disability
(Rs.4,000/-x12x16x80% =
Rs.6,14,400/- rounded off to
Rs.6,15,000/-)
3. Future medical expenses 1,00,000-00
II. NON-PECUNIARY DAMAGES
(General Damages)
4. Damages for pain, suffering and 2,00,000-00
trauma as a consequence of the
injuries
29 MVC No.1658/2018
SCCH 26
5. Compensation on account of loss 1,00,000-00
of consortium to husband
6. Cost of Attendant 50,000-00
7. Loss of amenities and Loss of 1,50,000-00
expectation of life and
disfiguration (shortening of
normal longevity)
8. Cost of special diet, wheel chair, 1,00,000-00
special commode chair, special
undergarments, jacket to be worn
on wheelchair.
Total 22,51,000-00
38. Accordingly, I hold that Petitioner is entitled for total compensation of Rs.22,51,000/- with interest at the rate of 9% p.a. (excluding future medical expenses of Rs.1,00,000/-) from the date of petition till its realization.
39. As far as awarding of interest on the compensation amount is concerned, in a recent decision reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.28141-42 of 2017 decided on 06.04.2018) wherein the Hon'ble 30 MVC No.1658/2018 SCCH 26 Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) at para No.1 and 12 Hon'ble Supreme Court held that: "Quantum- Interest-Tribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per cent-Apex Court allowed interest at 9 per cent per annum from the date of filing of claim application". In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while 31 MVC No.1658/2018 SCCH 26 awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
40. Coming to the question of fixing the liability to pay the compensation to the Petitioner, Respondent No.2 being the Insurance Company had issued policy infavour of Respondent No.1 in respect of Passenger Ace Autorickshaw bearing REg.No.KA-06-D-7269 and it is valid and effective on the date of accident. Accordingly, the Respondent No.2 being the insurer and Respondent No.1 being the owner of the offending vehicle are jointly and severally liable to pay compensation to the Petitioner. However, Respondent No.2 has to indemnify Respondent No.1. Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
41. Issue No.3: On the basis of discussions made on Issues Nos.1 and 2, I proceed to pass the following: 32 MVC No.1658/2018
SCCH 26 ::ORDER::
Petition filed by the Petitioner under Sec.166 of MV Act, 1989 is allowed in part.
Petitioner is entitled for total compensation of Rs.22,51,000/- (Rupees Twenty Two Lakhs Fifty One Thousand Only) with interest at the rate of 9% p.a.(excluding future medical expenses of Rs.1,00,000/-) from the date of petition till the date of realization.
The Respondent No.2 is liable to pay the compensation to the Petitioner and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount, 75% to be released in favour of Petitioner by way of crossed cheque and remaining 25% to be kept in Fixed Deposit in any Nationalized or Scheduled Bank, for a period of three years, in her name.
The Advocate`s fee is fixed at Rs.1,000/-. Draw award accordingly.
(Dictated to the stenographer directly on computer, typed by her, thereof is corrected and then pronounced by me in the Open Court on this the 6th December 2019) (SHARMILA.S.) C/C XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.33 MVC No.1658/2018
SCCH 26 ::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW-1 : Anusuya PW-2 : Dr.T.S.Raghavendra
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : FIR Ex.P.2 : Complaint Ex.P.3 & : Mahazar 4 Ex.P.5 : IMV report Ex.P.6 : Charge sheet Ex.P.7 : Wound Certificate Ex.P.8 : Statement of petitioner Ex.P.9 to : Statement of witnesses Ex.P.13 Ex.P.14 : Order sheet CC 160/2018 Ex.P.15 : MLC register Ex.P.16 : Discharge summary to 19 Ex.P.20 : OPD card Ex.P.21 : Medical bills (172 bills Rs.9,59,584/-) Ex.P.22 : Medical prescriptions (102) Ex.P.23 : Advance paid receipts (10 Rs.1,38,000/-) Ex.P.24 : Certificate Ex.P.25 : Voter ID Ex.P.26 : Case sheet Ex.P.27 : X-ray film Ex.P.28 : OPD sheet Ex.P.29 : Order copy issued by Assistant Director
office, Women and child development 34 MVC No.1658/2018 SCCH 26 department for appointment of Anusuyamma H.R. as Anganavadi Assistant Ex.P.30 : Order copy of Acceptance of Resignation Ex.P.31 : 4 photos to 34 Ex.P.35 : CD Ex.P.36 : Medical bills (2) Ex.P.37 : Medical bills (2) Ex.P.38 : Medical prescriptions Ex.P.39 : Certificate for medical bill issued by Dr.T.S.Raghavendra-Orthopaedic surgeon Ex.P.40 : 9 x-rays LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW-1 : Balesh R. RW-2 : M.V.Venkatachala
LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R1 : True copy of insurance policy
Ex.R2 : B register extract
Ex.R3 : Copy of permit
Ex.R4 : Authorisation letter
Ex.R5 : Copy of permit extract
(SHARMILA.S.)
C/C XXIV ADDL. SMALL CAUSES JUDGE
& A.C.M.M. BENGALURU.