Bangalore District Court
In Mvc 1. Smt. Manjula vs In 1. M/S. Bajaj Allianz General Co on 13 November, 2015
BEFORE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 13th DAY OF NOVEMBER, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.2429/2014 to MVC No.2432/2014
PETITIONER IN MVC 1. Smt. Manjula
2429/2014: W/o V. Kempe Gowda,
Aged about 24 years.
2. Sharadamma
W/o. Late. B.T. Venkataramappa,
Aged about 53 Years.
(Sri. T. Manjunath ----- Advocate)
Both are Residing at
#106, Nagondanahalli Main Road,
Behind Besilary Water Factory,
Immadihalli, White field,
Bangalore-560 066.
PETITIONER IN MVC Smt. Manjula,
2430/2014: W/o V. Kempe Gowda,
Aged about 24 Years,
Residing at
# 106, Nagondanahalli Main Road,
Behind Besilary Water Factory,
Immadihalli, White Field,
Bangalore-560 066.
(Sri. T. Manjunath ------ Advocate)
PETITIONER IN MVC Kumari Sahana,
2431/2014: D/o Narayana Swamy,
Aged about 11 Years,
Residing at # 111,
SCCH-11 2 MVC 2429, 2430,
2431, 2432/2014
Khaji Sonnenahalli,
Kannamangala post,
Bangalore Urban-560 067.
Petitioner being a minor
Reptd. by her father and natural
Guardian herein Narayana Swamy,
Aged about 44 Yeaers,
S/o Chikkaramaiah.
(Sri. T. Manjunath------- Advocate)
PETITIONER IN MVC Sri. Puttaiah,
2432/2014: S/o Late Bhallaiah,
Aged about 40 Years,
Residing at Nelamakanahalli Village,
Eggaluru Post,
Channapatna Taluk,
Ramanagara District-562 160
(Sri. T. Manjunath------ Advocate)
- V/S -
RESPONDENTS IN 1. M/s. Bajaj Allianz General Co., Ltd.,
MVC No.2429/2014: Motor Claims Hub,
No.31, TBR Towers,
New Mission Road,
Bangalore-560 002.
Policy No.OG-14-1719-1803-00000181
Valid upto 01.07.2013 to 30.06.2014
(Sri. S. Krishna Kishore --- Advocate)
2. Mr. S. Ashwaq Pasha
S/o Pasha,
#3687, 9th Main, 4th Cross,
SCCH-11 3 MVC 2429, 2430,
2431, 2432/2014
Kaveri Sagara, BSK 2nd Stage,
Bangalore-560 070.
(Owner of the Tanker Lorry No.KA-05-AB-
3928)
(Exparte)
MVC No.2430/14 1. M/s. Bajaj Allianz General Ins. Co., Ltd.,
Motor Claims Hub,
No.31, TBR Towers,
New Mission Road,
Bangalore-560 002.
(Sri. S. Krishna Kishore --- Advocate)
2. Mr. S. Ashwaq Pasha
S/o Pasha,
#3687, 9th Main, 4th Cross,
Kaveri Nagara, BSK 2nd Stage,
Bangalore-560 070.
(Exparte)
MVC No.2431/14 1. M/s. Bajaj Allianz General Ins. Co., Ltd.,
Motor Claims Hub,
No.31, TBR Towers,
New Mission Road,
Bangalore-560 002.
Policy No.OG-14-1719-1803-00000181
Valid upto 01.07.2013 to 30.06.2014
(Sri. S. Krishna Kishore---- Advocate)
2. Mr. S. Ashwaq Pasha,
S/o Pacha,
#3687, 9th Main, 4th Cross,
SCCH-11 4 MVC 2429, 2430,
2431, 2432/2014
Kaveri Nagara, BSK 2nd Stage,
Bangalore-560 070.
(Owner of the Tanker Lorry No.KA-05-AB-
3928)
(Exparte)
MVC No.2432/14: 1. M/s Bajaj Allianz General Ins. Co., Ltd.,
Motor Claims Hub,
No.31, TBR Towers,
New Mission Road,
Bangalore-560 002.
(Sri. S. Krishna Kishore ------- Advocate)
2. Mr. S. Ashwaq Pasha
S/o Pasha,
# 3687, 9th Main, 4th Cross,
Kaveri Nagara, BSK 2nd Stage,
Bangalore-560 070
(Exparte)
-:JUDGMENT:-
Petitioners have filed these claim petitions against the
respondents claiming the compensation for the death of
deceased and injuries sustained in the road traffic accident.
2) It is averred that, on 28.4.2014 at about 7:45pm, the
deceased V.Kempegouda was driving car bearing No. KA-53-N-
SCCH-11 5 MVC 2429, 2430,
2431, 2432/2014
1098 which was proceeding on Bangalore-Kolar NH-4, infront of
Old Avalahalli police station, Bidarahalli Hobli, Bangalore
district. At that time, driver of Tanker lorry bearing No.KA-05-
AB-3928 has driven the same in rash and negligent manner
endangering human life with high speed without following traffic
rules and regulations and dashed to another vehicle. Due to the
said impact, the deceased V.Kempegouda, KushalKumar, injured
petitioner Sahana and petitioner Puttaiah sustained grievous
injuries on the vital part of body.
3) Immediately after the accident, they were shifted to
K.R.Puram Multi-specialty hospital and duty doctors examined
deceased V.Kempegouda and declared as dead. Afterwards, the
dead body of the deceased was brought to MVJ hospital for post
mortem and doctors conducted the post mortem and handed
over the dead body to the petitioners. The petitioners performed
last rites and obsequies for which they have spent Rs.1,00,000/-
4) At the time of the accident, the deceased V.Kempegouda
was aged about 32 years and doing business and earning
Rs.50,000/- per month and he was only bread earner in his
family. Due to the death of the deceased, the petitioners have
SCCH-11 6 MVC 2429, 2430,
2431, 2432/2014
lost love and affection and their life has become darkness and
they are undergoing great mental shock and mental agony and
facing great financial difficulties.
5) The duty doctors of K.R.Puram Multi-specialty hospital
examined deceased Kushalkumar and declared as dead.
Afterwards, the dead body of the deceased was brought to MVJ
hospital for post mortem and doctors conducted the post mortem
and handed over the dead body to the petitioners. The
petitioners performed last rites and obsequies for which they
have spent Rs.1,00,000/-.
6) At the time of the accident, the deceased Kushalkumar
was aged about 6 years and studying in UKG in private school.
Due to the death of the deceased, the petitioner has lost and
affection of deceased and she is undergoing great mental shock
and agony and facing financial difficulties.
7) The petitioner Sahana was shifted to K.R.Puram Multi-
specialty hospital wherein she was admitted as inpatient and
duty doctors examined her clinically and radiologically and
SCCH-11 7 MVC 2429, 2430,
2431, 2432/2014
revealed that, she has sustained head injury, loss of left eye and
fracture of right radius. She underwent several surgeries for
head injury and left eye and she has also underwent surgery for
right radius and internal fixation was done. The doctors have
advised to the petitioner take follow up treatment for which she
requires huge funds and she is still under treatment. Petitioner
has spent more than Rs.5,00,000/- towards medical expenses,
conveyance, food, transport and other charges and she has to
undergo 3-4 surgeries for which she requires more funds.
8) Due to the accidental injuries, the petitioner is
completely bed ridden and she cannot run, jump, stand, lift or
any weight and she is suffering head ache, giddiness and
reduced memory power and unable to sleep properly. The
accidental injuries have affected her marriage prospectus and
future studies and in the future, she cannot join army, police
department, Air force and other several jobs and she cannot
participate in any sports and she cannot do her activities as
earlier. The petitioner is undergoing deep mental shock, pain
and sufferings.
SCCH-11 8 MVC 2429, 2430,
2431, 2432/2014
9) Prior to the accident, the petitioner was hale and
healthy and aged about 11 years and she was studying in 7th
standard at Auxilium School and due to accidental injuries, she
is suffering from mental shock and agony and she has lost
academic year due to loss of eye and she cannot concentrate on
her studies.
10) The petitioner Puttiah was shifted to K.R.Puram Multi-
specialty hospital and after first aid treatment, he was shifted to
KIMS hospital wherein he was admitted as inpatient and duty
doctors examined him clinically and radiologically and revealed
that, he has sustained fracture of both bones of right leg and
internal fixation and fracture of right forearm. He underwent
surgery for both bones of right leg and internal fixation was
done. The doctors have advised to the petitioner to take follow
up treatment for which he requires huge funds and he is still
under treatment. Petitioner has spent more than Rs.2,00,000/-
towards medical expenses, conveyance, food, transport and
other charges and he has to undergo one more surgery for
which he requires more funds.
SCCH-11 9 MVC 2429, 2430,
2431, 2432/2014
11) Petitioner Puttaiah is completely bed ridden, he cannot
jump, stand, lift any weight and sleep properly and he cannot do
his activities as earlier and the injuries have caused permanent
disability and he is unable to do his job till the end of his life.
12) Prior to the accident, he was hale and healthy and he
was working as cleaner in the said lorry and earning
Rs.10,000/- per month. Due to the accidental injuries, he is
unable to do his work as earlier and he is suffering from mental
shock.
13) The accident has taken place due to rash and negligent
driving by the driver of Tanker Lorry bearing Regn. No.KA-05-
AB-3928 and the jurisdictional police have registered case
against the driver of the offending vehicle for the offences
punishable under Section 279, 338 and 304-A of IPC.
14) The respondents being owner and insurer of offending
vehicle are jointly and severally liable to pay the compensation to
the petitioners. Hence, petitioners have claimed compensation
under different heads.
SCCH-11 10 MVC 2429, 2430,
2431, 2432/2014
15) Though notice served upon the respondent No.2, he
has not appeared and contested the claim petition. Hence
respondent No.2 has been placed exparte.
16) The respondent No.1 has filed written statement and
denied the contents of the claim petition. It is admitted that, the
respondent No.2 is the owner of the Tanker Lorry bearing Regn.
No.KA-05-AB-3928 insured under Policy No.OG-14-1719-1803-
00000181 for the period from 01.07.2013 to 30.06.2014 in
favour of the respondent No.2, which is in his possession. The
respondent No.2 may be permitted to produce the copy of the
policy, which may be exhibited and read in evidence. The driver
of the Lorry was not at fault and the driver of the Car was the
main architect for the cause of accident and only with an
intention to claim the compensation, false complaint was lodged
against the driver of the Tanker Lorry bearing No.KA-05-AB-
3928. It is contended that, the driver of the offending vehicle
was not holding valid and effective driving licence to drive the
same at the time of accident and respondent No.1 is not liable to
indemnify the respondent No.2. The respondent No.1 seeks
protection under Section 147 and 149 of Motor Vehicles Act.
SCCH-11 11 MVC 2429, 2430,
2431, 2432/2014
The respondent No.2 has failed to comply the mandatory
requirement under Section 134(c) of Motor Vehicles Act and he
has failed to furnish the required documents and intimate the
accident to the respondent No.1 and it is mandatory duty of the
Avalahalli police have failed to forward all the relevant
documents to the concerned insurer within 30 days from the
date of information as per Section 158(6) of Motor Vehicles Act.
The compensation claimed by the petitioners is highly excessive
and contrary to Section 3 of the Interest Act and the
observations of the various judgment of the Hon'ble Apex Court.
The respondent No.1 may be permitted to contest the claim
petition on all grounds apart from the available under Section
149(2) of Motor Vehicles Act and it may be permitted to file
additional written statement at later stage, when the better
particulars are available. Therefore, it is prayed for dismissal of
the claim petition.
17) Petitioner in MVC No.2429/2014 herself examined as
PW.1 and petitioner in MVC 2430/2014 is herself examined as
PW.2 and got marked Ex.P.1 to 17. Minor guardian of petitioner
in MVC No.2431 himself examined as PW.3 and got marked
Ex.P.18 to 32. Petitioner in MVC No.2432/2014 himself
SCCH-11 12 MVC 2429, 2430,
2431, 2432/2014
examined as PW.4 and got marked Ex.P.33 to 53. The petitioner
in MVC No.2432/2014 has examined Dr.Somashekar S/o K.N.
Ramanna as PW.5 and got marked Ex.P.54 to 63 and closed the
evidence.
18) Though sufficient time has been granted to the
respondent No.1, he has not adduced the evidence. Hence
respondent No.1 side evidence is taken as nil.
19) The petitioner and respondent No.1 have not
submitted the arguments. Hence both side arguments are taken
as not addressed and claim petition is taken for disposal on
merits.
20) On the basis of the pleadings of the parties, following
issues have been framed:
Issues in M.V.C.No.2429/2014
1. Whether petitioners prove that, deceased V.
Kempe Gowda succumbed to the injuries due to the
actionable negligence on the part of the driver of
offending vehicle bearing No.KA-05-AB-3928 on
28.04.2014 at about 7.45 p.m. in front of old
SCCH-11 13 MVC 2429, 2430,
2431, 2432/2014
Avalahalli Police Station, on Bengaluru-Kolar Road,
Bidarahalli Hobli, Bengaluru when deceased was
driving car bearing No.KA-53-N-1098?
2. Whether respondent No.1 proves that, as on the
date of accident, the driver of offending vehicle was not
holding valid and effective driving licence and
respondent No.2 violated the terms and conditions of
insurance policy?
3. Whether petitioners are entitled for the
compensation as prayed in the claim petition? If so,
what is the quantum of compensation and from
whom?
4. What order or Award?
Issues in M.V.C.No.2430/2014
1. Whether petitioner proves that, deceased
Kushal Kumar succumbed to the injuries due to the
actionable negligence on the part of the driver of
offending vehicle bearing No.KA-05-AB-3928 on
28.04.2014 at about 7.45 p.m. in front of old
Avalahalli Police Station, on Bengaluru-Kolar Road,
Bidarahalli Hobli, Bengaluru when deceased was
traveling a car bearing No.KA-53-N-1098?
SCCH-11 14 MVC 2429, 2430,
2431, 2432/2014
2. Whether respondent No.1 proves that, as on the
date of accident, the driver of offending vehicle was not
holding valid and effective driving licence and
respondent No.2 violated the terms and conditions of
insurance policy?
3. Whether petitioners are entitled for the
compensation as prayed in the claim petition? If so,
what is the quantum of compensation and from
whom?
4. What order or Award?
Issues in M.V.C.No.2431/2014
1. Whether petitioner proves that, she sustained
grievous injuries due to the actionable negligence on
the part of the driver of offending vehicle bearing
No.KA-05-AB-3928 on 28.04.2014 at about 7.45 p.m.
in front of old Avalahalli Police Station, on Bengaluru-
Kolar Road, Bidarahalli Hobli, Bengaluru when she
was traveling a Car bearing No.KA-53-N-1098?
2. Whether respondent No.1 proves that, as on the
date of accident, the driver of offending vehicle was not
holding valid and effective driving licence and
SCCH-11 15 MVC 2429, 2430,
2431, 2432/2014
respondent No.2 violated the terms and conditions of
insurance policy?
3. Whether petitioners are entitled for the
compensation as prayed in the claim petition? If so,
what is the quantum of compensation and from
whom?
4. What order or Award?
Issues in M.V.C.No.2432/2014
1. Whether petitioner proves that, he sustained
grievous injuries due to the actionable negligence on
the part of the driver of offending vehicle bearing
No.KA-05-AB-3928 on 28.04.2014 at about 7.45 p.m.,
in front of old Avalahalli police station, on Bengaluru-
Kolar road, Bidarahalli Hobli, Bengaluru when he was
traveling as cleaner in the offending vehicle?
2. Whether respondent No.1 proves that as on the
date of accident, the driver of offending vehicle was not
holding valid and effective driving licence and
respondent No.2 violated the terms and conditions of
insurance policy?
SCCH-11 16 MVC 2429, 2430,
2431, 2432/2014
3. Whether petitioners are entitled for the
compensation as prayed in the claim petition? If so,
what is the quantum of compensation and from
whom?
4. What order or Award?
21) My findings on the above issues are as under:
ISSUES IN M.V.C.No.2429/2014
Issue No.1 : Affirmative;
Issue No.2 : Negative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled to compensation of
Rs.21,05,000/- along with interest @ of
6% p.a. from the date of petition till
complete realisation, from respondent
No.1.
Issue No.4 : As per final order for the following:
ISSUES IN M.V.C.No.2430/2014
Issue No.1 : Affirmative;
Issue No.2 : Negative;
SCCH-11 17 MVC 2429, 2430,
2431, 2432/2014
Issue No.3 : Partly Affirmative; the petitioner is entitled
to compensation of Rs.4,32,500/- along
with interest @ of 6% p.a. from the date of
petition till complete realisation, from
respondent No.1.
Issue No.4 : As per final order for the following:
ISSUES IN M.V.C.No.2431/2014
Issue No.1 : Affirmative;
Issue No.2 : Negative;
Issue No.3 : Partly Affirmative; the petitioner is
entitled to compensation of
Rs.2,50,000/- along with interest @ of
6% p.a. from the date of petition till
complete realisation, from respondent
No.1.
Issue No.4 : As per final order for the following:
ISSUES IN M.V.C.No.2432/2014
Issue No.1 : Affirmative;
Negative;
Issue No.2 :
Partly Affirmative; the petitioner is entitled
Issue No.3 :
to compensation of Rs.3,96,664/- along
SCCH-11 18 MVC 2429, 2430,
2431, 2432/2014
with interest @ of 6% p.a. from the date of
petition till complete realisation, from
respondent No.1.
As per final order for the following:
Issue No.4 :
-:REASONS:-
22) Issue No.1 in all cases: PW1 to 4 have stated in their
evidence that, on 28.04.2014 at about 7.45 p.m., deceased V.
Kempegowda was driving Car bearing Regn.No.KA-53-N-1098
proceeding on Bangalore-Kolar, N.H.4 road, slowly and
cautiously by observing traffic rules and regulations and reached
near old Avalahalli police station. They have also stated that, at
that time, the driver of Tanker Lorry bearing Regn. No.KA-05-AB-
3928 has driven the said vehicle in rash and negligent manner,
endangering human life, without observing traffic rules and
regulations and dashed to another vehicle and taken u-turn and
dashed to the Car bearing No.KA-53-N-1098. They have stated
that, the accident has taken place due to rash and negligent
driving by the driver of the offending vehicle and jurisdictional
Avalahalli police have registered case in Crime No.99/2014
against the driver of the offending vehicle and after investigation,
they have filed charge sheet against the driver of the said vehicle
SCCH-11 19 MVC 2429, 2430,
2431, 2432/2014
for the offences punishable under Section 279, 338 and 304(A) of
IPC.
23) In the cross-examination of PW.1 and 2, they have
stated that, they have not witnessed the accident personally and
they do not know who filed complaint before the police. They
have admitted that, they came to know about the accident from
some others. They have admitted that, the road from K.R.
Puram has been widened and said road is two way road having
centre median. They have stated that, they do not know
accurate place of the accident. On perusal of the evidence of
PW.1 which goes to show that, she is not eye witness to the
accident and she came to know about accident from others.
PW.3 who is father of minor Kumari. Sahana has stated in his
evidence that, his daughter was proceeding in the Car from
Bangalore to Kolar and the accident has taken place at
Avalahalli and police have informed him about the accident. On
perusal of the evidence of PW.3, he is not an eye witness to the
incident. He has admitted in his cross-examination that, his
daughter was admitted to the hospital in Ambulance by the
public and police informed him about the accident and then
SCCH-11 20 MVC 2429, 2430,
2431, 2432/2014
only, he came to know about the accident. He is not an eye
witness to the accident. PW.4 who was traveling in Tanker
vehicle from Bangalore to Hoskote has stated in his evidence
that, he was coming from Bangalore to Hoskote in Tanker Lorry
and parked lorry was on the right side of the road. He has
stated that, in order to avoid the dashing to the parked tanker
lorry was taken towards left side and at that time, he fell inside
tanker cabin of the lorry. He has stated that, he was not driving
the vehicle and he does not know the driving of Tanker lorry. On
perusal of the evidence of PW.4, he is an eye witness to the
incident and on perusal of his evidence it reveals that,, one
parked lorry was on the right side of the road and in order to
avoid the dashing to the parked lorry, the tanker was taken
towards left side and at that time, the accident has taken place.
24) Petitioners have produced true copy of FIR and
complaint, which are marked as Ex.P.1 and P.2 and as per the
said documents, on 28.04.2014 at about 7.45 p.m., deceased
Kushal Kumar, petitioner Puttaiah and deceased Kempegowda
were proceeding in the Car bearing Regn. No.KA-53-N-1098 on
Bangalore-Hoskote, N.H.4 road and at that time, the driver of
Lorry bearing Regn.No.KA-05-AB-3928 has driven the same by
SCCH-11 21 MVC 2429, 2430,
2431, 2432/2014
overtaking the Car and taken towards right side and dashed to
the Lorry and later on, he taken towards left side and dashed to
the Car. Due to the said impact, the left side of body of Car went
inside the left back side portion of tanker lorry and one boy by
name Kushal Kumar and Kempegowda sustained grievous
injuries and injured were taken to the hospital in 108 vehicle
and doctors informed that, Kempegowda and Kushal Kumar
died. As per the contents of the complaint, the Tata ACE vehicle
bearing No.KA-53-B-2147 was loaded with onion and it was not
in moving condition and the loaded onion was being filled to the
Lorry bearing No.8843, at that time, the driver of Tanker lorry
bearing Regn.No.KA-05-AB-3928 has driven the same in rash
and negligent manner and over taken the vehicles and dashed to
the lorry and later on, he taken turn towards left side and
dashed to the Car bearing No.KA-53-N-1098. The petitioners
have produced true copy of panchanama, which is marked as
Ex.P.3 and as per said document, the Tata ACE vehicle bearing
No.KA-53-B-2141 was not in moving condition, which was
loaded with onion and another lorry bearing Regn.No.KA-8843
was brought and it was stopped facing towards Bangalore and
the onion bags were being loaded to the said lorry and at that
SCCH-11 22 MVC 2429, 2430,
2431, 2432/2014
time, the Tanker Lorry came in rash and negligent manner and
dashed to the said lorry and car. The petitioners have produced
true copy of inquest panchanama, which is marked as Ex.P.5.
The petitioners have also produced motor vehicle inspection
report and as per the said document, the tanker lorry bearing
No.KA-05-AB-3928 sustained damage to the front left side and
right side wind screen glass, which was broken, front safe
completely damaged, front bumper damaged radiator engine
damaged front and right side left side door, cabin dashed and
damaged.
25) The Car bearing No.KA-53-N-1098 sustained damages
to the front wind screen glass broken, top body and all the doors
were damaged, front bumper engine banet radiator and engine
connected parts were damaged. The Ashoka Leyland goods
vehicle bearing No.8843 sustained damage to the left and right
side and wind screen glass broken, front bumper and other
connected parts are damaged to the said vehicle. As per the
opinion of the motor vehicle inspector, the accident has not
taken place due to any mechanical defect. The petitioners have
produced true copy of charge sheet, which is marked as Ex.P.8
SCCH-11 23 MVC 2429, 2430,
2431, 2432/2014
and as per the said document, police have filed charge sheet
against the driver of the offending vehicle for the offences
punishable under section 279, 338 and 304(A) of I.P.C.
26) On perusal of the contents of the police documents,
they reveal that, the Car bearing No.KA-53-N-1098 was
proceeding on Bangalore-Hoskote, N.H.4 road, at that time, one
Tata ACE vehicle bearing No.KA-53-B-2141 which was loaded
with onion bags was parked, which was not in running condition
and in a lorry bearing Regn.No.KA-02-8243, the onion bags were
being shifted to the lorry and it was stopped facing towards
Bangalore side. On perusal of the police documents, they reveal
that, at that time, the driver of offending vehicle bearing
Regn.No.KA-05-AB-3928 has overtaken the Car and dashed to
the Lorry bearing No.KA-02-AA-8843 and taken turn towards left
side and dashed to the Car bearing No.KA-53-N-1098, by which
the driver of the Car and his son Kushal Kumar died in the
accident and the inmates of the Car by name Kumari Sahana
sustained injuries and cleaner of offending vehicle by name
Puttaiah also sustained injuries. This goes to show that, the
driver of the offending vehicle has driven the same in rash and
SCCH-11 24 MVC 2429, 2430,
2431, 2432/2014
negligent manner and dashed to the parked lorry and Car and
caused the accident. So, I hold that, petitioners have proved the
rash and negligent driving by the driver of the offending vehicle.
So, I answer issue No.1 in all the cases in Affirmative.
27) Issue No.2 in all the cases: The respondent No.1
taken contention that, as on the date of accident, the driver of
the offending vehicle was not holding valid and effective driving
licence and the respondent No.2 has violated the terms and
conditions of insurance policy. But, this contention of the
respondent No.1 is not acceptable. Because, the Avalahalli
police have registered the case against the driver of the said
vehicle for the offences punishable under section 279, 338 and
304-A of I.P.C and they have not filed charge sheet for the
offences punishable under Section 3 R/W. Section 181 of Motor
Vehicles Act. Even the respondent No.1 has not adduced the
evidence of licensing authority and also not produced any
documents in support of the contention. In the absence of any
materials to that effect, I hold that, the contention of the
respondent No.1 is not acceptable. So, I answer issue No.2 in all
the cases in Negative.
SCCH-11 25 MVC 2429, 2430,
2431, 2432/2014
28) Issue No.3 in MVC No.2429/2014 : PW.1 has stated
in her evidence that, her deceased husband was shifted to K.R.
Puram Super Speciality Hospital and doctor who examined him
declared that, he died and post mortem examination was
conducted MVJ hospital and dead body was handed to them.
She has stated that, they have spent Rs.1,00,000/- towards
transportation of dead body and funeral obsequies. The
petitioners have produced true copy of post mortem report and
inquest panchanama about the death of the deceased and said
documents are marked as Ex.P.5 and P7. The petitioners would
have spent some amount towards transportation of dead body
and funeral obsequies. Though PW.1 has stated that, she has
spent Rs.1,00,000/- towards transportation of dead body and
funeral obsequies, there will not be any documents to that effect.
However, she would have spent some amount towards
transportation of dead body and funeral obsequies. In view of
decision of Hon'ble Supreme Court reported in Rajesh and
others V/s Rajbir Singh and others, 2013 ACJ 1403, I hold
that, petitioners are entitled for compensation of Rs.25,000/-
under the head of Transportation of dead body and funeral
obsequies.
SCCH-11 26 MVC 2429, 2430,
2431, 2432/2014
29) The petitioner No.1 has lost her loving husband at her
young age and petitioner No.2 has lost her loving son at her old
age and they have lost love and affection of the deceased
throughout their life. Considering this fact, I feel it just and
proper to award the compensation of Rs.30,000/- under the
head of loss of love and affection. Hence, petitioners are
awarded compensation of Rs.30,000/- under the head of loss of
love and affection.
30) PW.1 has stated in her evidence that, prior to the
accident, her deceased husband was doing business and earning
Rs.50,000/- per month and maintaining the family and he was
only earning member of the family and due to the death of the
deceased, they have put to financial hardship. The petitioners
would have lost some income towards estate and due to the
death of the deceased, they have to suffer financially throughout
their life. Considering this fact, I feel it just and proper to award
compensation of Rs.30,000/- under the head of loss of estate.
Hence petitioners are awarded compensation of Rs.30,000/-
under the head of Loss of Estate.
SCCH-11 27 MVC 2429, 2430,
2431, 2432/2014
31) Petitioner No.1 has lost her husband in the road traffic
accident and she has lost her husband in her young age and she
has lost companionship, love, affection, care and protection etc
as being wife of the deceased. It is the right of the petitioner No.1
to the company, society, solace, affection, and sexual relations
with her deceased husband and it is just and proper to award
the compensation of Rs.1,00,000/- under the head of
consortium and compensate the loss of spouse's action, comfort,
solace, companionship, society, assistance, protection, care and
sexual relations in future days as held in the decision of Hon'ble
Supreme Court reported in Rajesh and others V/s Rajbir
Singh and others 2013 ACJ 1403. Hence, the petitioner No.1 is
awarded the compensation of Rs.1,00,000/- under the head of
loss of consortium.
32) PW.1 has stated in her evidence that, her deceased
husband was aged about 32 years and doing business and
earning Rs.50,000/- per month. In the cross-examination of
PW.2, she has stated that, she has produced bank statement to
show that, her deceased was doing business and earning
Rs.50,000/- per month and he was doing real estate business
SCCH-11 28 MVC 2429, 2430,
2431, 2432/2014
and he was not paying income tax. She has also admitted that,
in the bank statement of the deceased, there is only about debit
and credit and there is no income of Rs.50,000/-. The
petitioners have produced true copy of ration card and as per the
said document, the deceased was aged about 30 years as on the
date of accident. Petitioner has produced true copy of Aadhhar
card, which is marked as Ex.P.10. She has also produced true
copy of Aadhhar card of deceased and as per the said document,
deceased was born in the year 1982. She has produced driving
licence of deceased and as per the said document, deceased was
born on 17.09.1982 and as on the date of accident, he was aged
about 32 years. The multiplier applicable to the facts of the case
is 16 as per the decision reported in AIR 2009 SC 3104 (Sarla
Verma's case). The petitioners have produced Bank Statement,
and as per the said document, the joint account is standing in
the name of petitioner No.1 and deceased Kempe Gowda and
there is credit and debit in the account of the deceased. As per
the said document, there was credit of Rs.15,709/- on
05.06.2012, 05.07.2012, 04.08.2012, 05.09.2012, 05.10.2012,
05.11.2012, 05.12.2012, 05.02.2013, 05.03.2013 and
05.04.2013. As per the said document, on 24.05.2013, the
SCCH-11 29 MVC 2429, 2430,
2431, 2432/2014
amount of Rs.20,00,000/- was credited to the account of the
deceased. On 06.06.2013, the TDS refund was made which is
created to the joint account of the deceased and petitioner No.1.
This goes to show that, the deceased was income tax payee. On
perusal of the said document, the deceased was getting income
of Rs.15,709/- from 05.06.2012 to 05.02.2013 and later on,
there is some variation in the income and he got the said
amount continuously for the period of one year and on
04.05.2013, it was credited Rs12,567/- to the joint account of
the deceased and he was holding bank balance which is more
than Rs12,00,000/- in his account which goes to show that, he
was having some source of income. The petitioners have also
produced Ex.P.14 which is the record of right standing in the
name of deceased and others. Considering the fact, I feel it just
and proper to take into account of the notional income of the
deceased at Rs.10,000/-. Since deceased was aged about 31
years as on the date of death and he was born on 17.09.1982,
there shall be addition of 50% in view of the decision of Hon'ble
Supreme Court reported in (Rajesh V/s Rajbeer singh and
other) 2013 ACJ 1403. Then gross income of the deceased will
be Rs.15,000/-. If 1/3rd is deducted towards personal expenses
SCCH-11 30 MVC 2429, 2430,
2431, 2432/2014
of the deceased, the actual income of the deceased will be
Rs.10,000/-. Then loss of income will be as under:
Rs.10,000/-x12x16=19,20,000/-
So, the petitioners are entitled for compensation of
Rs.19,20,000/- under the head of loss of dependency.
So, I hold that, petitioners are entitled for compensation which is
calculated as under:
33) The Calculation table stands as follows:
1) Transportation of dead body Rs. 25,000/-
2) Loss of Love and Affection Rs. 30,000/-
3) Rs. 30,000/-
Loss of Estate
4) Loss of dependency Rs. 19,20,000/-
5) Loss of consortium Rs. 1,00,000/-
Total Rs. Rs. 21,05,000/-
So, I hold that, petitioners are awarded for compensation
of Rs.21,05,000/- along with interest at the rate of 6% p.a. from
SCCH-11 31 MVC 2429, 2430,
2431, 2432/2014
the date of petition till its realisation. So, I answer issue No.3 in
MVC No.2429/2014 in partly affirmative.
34) Issue No.3 in MVC No.2430/2014 : PW.2 has stated
in her evidence that, immediately after the accident, her son was
shifted to the K.R. Puram Multy Specialty Hospital and duty
doctors examined and declared that, her son was died and post
mortem was conducted in M.V.G. hospital and dead body was
handed over to her. She has stated that, she had shifted the
dead body to her native place and performed funerals and spent
more than Rs.1,00,000/-. Due to the death of the deceased,
petitioner would have spent some amount towards
transportation of dead body and funeral obsequies and she
would have spent some amount as per the customs and rituals
of her community and there will not be any documents to that
effect. Considering this fact and also by following the principles
laid down in the decision of Hon'ble Supreme Court reported in
(Rajesh V/s Rajbeer singh and other) 2013 ACJ 1403, I hold
that, petitioner is entitled for compensation of Rs.25,000/-
under the head of funeral obsequies and transportation of
dead body.
SCCH-11 32 MVC 2429, 2430,
2431, 2432/2014
35) Due to the sudden demise of deceased in the road
traffic accident, petitioner has lost love and affection of her
deceased son at her young age and she has to undergo deep pain
and agony and mental stress and sarrowness throughout her
life. Considering this fact, I feel it just and proper to award the
compensation of Rs.30,000/- under the head of loss of love
and affection.
36) Since deceased was a student studying in U.K.G and
he was not having income, the question of awarding income, loss
of estate does not arise at all.
37) The deceased Kushal Kumar was minor, aged
about 6 years and he was a brilliant student studying in UKG
in Private School and he was not having any income.
However, due to the death of the deceased, the petitioner
has to suffer throughout her life. Because, the deceased had
bright future prospectus in life, if he had survived, which
cannot be ruled out? In a decision reported in Oriental
Insurance Company V/s Mini and others 2011 ACJ 1261, the
Hon'ble Alahabad High Court awarded compensation of
Rs.1,54,500/- for the death of the deceased in the road traffic
SCCH-11 33 MVC 2429, 2430,
2431, 2432/2014
accident. In the said case, the deceased was aged about 8 years
and he was a school student. In the said decision at Para No.2,
the Hon'ble Alahabad High Court confirmed the judgment and
award passed by the tribunal awarding the compensation of
Rs.1,54,500/- for the death of deceased in the road traffic
accident. In one more decision reported in Jitendra Kumar
and another V/s Oriental Insurance Company Ltd., and
another 2010 ACJ 242 wherein the Hon'ble Delhi High Court
awarded the compensation of Rs.3,75,000/- for the death of
deceased aged about 3 years. In the said decision, the tribunal
assessed monthly income of Rs.15,000/- and deducted 1/3 for
the personal expenses of the deceased and applied the multiplier
of 15 and awarded Rs.1,50,000/- + 2,500/- for loss of estate and
Rs.2,000/- towards funeral expenses. The appellate Court
allowed Rs.2,25,000/- towards damages and Rs.75,000/-
towards non-regular and Rs.75,000/- for future prospectus and
award of Rs.1,54,500/- was enhanced to Rs.3,75,000/-. In a
decision reported in Manju Devi V/s Musafir Paswan, 2005
ACJ 99 (SC) Hon'ble Supreme Court awarded compensation of
Rs.2,25,000/- for the death of 13 years old by applying
SCCH-11 34 MVC 2429, 2430,
2431, 2432/2014
multiplier and taking the notional income of Rs.15,000/- as per
second schedule -B Motor Vehicles Act.
38) In one more decision reported in Sobhagya Devi V/s
Sukhvir Singh, II (2006) ACC 1997, the Hon'ble High Court
awarded the compensation of Rs.2,25,000/- by following
decision of Hon'ble Supreme Court reported in Manju Devi V/s
Musafir Paswan, 2005 ACJ 99 (SC) and applied the 2nd
schedule -B of Motor Vehicles Act. In one more decision
reported in Shyam Narayan V/s Kitty Tours & Travels, 2006
ACJ 320 (Delhi), the Hon'ble Delhi High Court followed the
principles laid down in decision of Manju Devi case and awarded
the compensation by applying the notional income of
Rs.15,000/- and multiplier of 15 as per the 2nd schedule. In the
Jitender Kumar and another V/s Oriental Insurance
Company Limited and another, the Hon'ble High Court taken
the notional income of the deceased at Rs.15,000/- and applied
the multiplier of 15 and awarded the compensation. The Hon'ble
High Court also awarded compensation of Rs.75,000/- towards
future prospectus. In view of the decision of Hon'ble Supreme
Court reported in R.K. Malik V/s Kiran Pal, 2009 ACJ 1924
SCCH-11 35 MVC 2429, 2430,
2431, 2432/2014
(SC), the Hon'ble High Court also awarded the compensation of
Rs.75,000/- under the head of non-pecuniary damages by
following the ratio laid down in the R.K. Malik case and Hon'ble
High Court of Alahabad awarded the total compensation of
Rs.3,75,000/-. In this case, if the notional income of deceased is
taken at Rs.15,000/- per annum by applying ratio of Hon'ble
Supreme Court reported in R.K. Malik V/s Kiran Pal, 2009
ACJ 1924 (SC) and by applying the 2nd schedule as deceased is
non-earning person, it is just and proper to award the
compensation by applying the multiplier of 15 by following ratio
laid down in R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC)
decision. If the notional income of the petitioner is taken at
Rs.15,000/- by applying the multiplier of 15, the loss of income
will be Rs.2,25,000/-. Hence the petitioner is entitled
compensation of Rs.2,25,000/- under the head of loss of
income.
39) As per the decision of Hon'ble Supreme Court held
that, R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC), the
petitioner is entitled for compensation of Rs.75,000/- under the
head of future prospectus. Hence petitioner is awarded
SCCH-11 36 MVC 2429, 2430,
2431, 2432/2014
compensation of Rs.75,000/- under the head of future
prospectus.
40) In the light of the principles laid down in the decision
reported in R.K. Malik V/s Kiran Pal, 2009 ACJ 1924 (SC), the
petitioner is entitled for compensation of Rs.75,000/- under the
head of non-pecuniary damages. Hence petitioner is awarded
the compensation of Rs.75,000/- under the non-pecuniary
damages.
41) Since deceased was aged about 6 years as on the date
of death. As per the second schedule, petitioner is entitled for
compensation of Rs.2,500/- under the head of loss of estate. So
I hold that, petitioner is entitled for compensation of Rs.2,500/-
under the head of loss of estate.
42) The calculation table stands as follows:-
1) Loss of income Rs. 2,25,000/-
2) Transportation of dead body Rs. 25,000/-
& Funeral expenses
3) Loss of Future prospectus Rs. 75,000/-
4) Non-pecuniary damages Rs. 75,000/-
SCCH-11 37 MVC 2429, 2430,
2431, 2432/2014
5) Loss of love and affection Rs. 30,000/-
6) Loss of estate Rs. 2,500/-
Total Rs. 4,32,500/-
So, I hold that petitioner is entitled for compensation of
Rs.4,32,500/- along with interest @ 6% p.a. from the date of
petition till complete realization. So I answered issue No.3 in
MVC No.2430/2014 in partly affirmative.
43) Issue No.3 in MVC No.2431/2014 : PW.3 has stated
in his evidence that, immediately after the accident, his daughter
was shifted to K.R. Puram Super Speciality Hospital, wherein
she took treatment as an inpatient till 09.05.2014 and duty
doctors examined her and X-rays were taken which reveals that,
she sustained fracture of black eye on left side, fracture of both
bones of right forearm, C.T. Scan shows contusion of left frontal
region with extradural haematoma of left temporal region with
crumo facial fractures with optic neuropathy. He has stated that,
the other grievous injuries are mentioned in the wound
certificate and discharge summary and the doctor conducted
surgery to the right wrist of his daughter, and the Torees
SCCH-11 38 MVC 2429, 2430,
2431, 2432/2014
fracture radius/ulna and POP slab applied and after necessary
treatment, she was discharged with an advice for follow-up
treatment, restricted fracture movements and complete bed rest
for six months. He has stated that, he has spent more than
Rs.2,00,000/- towards medical, conveyance, nourishment and
other incidental charges. He has stated that, his daughter has
visited to the hospital once in week for about 20 times by paying
Autorickshaw charges of Rs.500/- per trip. He has also stated
the difficulties of his daughter in para No.6 of his chief affidavit.
In the cross-examination of PW.3, he has stated that, he does
not know the insertions made in Ex.P.19. He has stated that,
doctors of K.R. Puram Multi Speciality Hospital told him that, his
daughter lost her vision and he does not know the name of the
doctor who told about loss of vision by his daughter. He has
admitted that, the doctors have not conducted surgery to his
daughter. He has admitted that, there are no documents to
show that, doctors advised not to conduct surgeries to his
daughter. He has stated that, left eye of his daughter is not
visible. But he has not produced certificate before this Court
from the hospital authorities about non-vision of left eye of his
daughter. The petitioner has produced true copy of wound
SCCH-11 39 MVC 2429, 2430,
2431, 2432/2014
certificate issued by the K.R. Puram Multi Speciality Hospital
and as per the said document, petitioner was admitted in the
said hospital from 28.04.2014 to 09.05.2014. As per the said
document, she sustained black eye on left side, fracture of both
bones of right fore arm and C.T. Scan shows contusion of left
frontal region with extradural haematoma of left temporal region
with crumo facial fractures with optic neuropathy and injury
No.1 is simple in nature and injury No.2 and 3 are grievous in
nature. The petitioner was shifted to ward on 04.05.2014 and
she recovered well and discharged in stable condition with advice
for bed rest and medicines. The petitioner was admitted in
Shankar Eye Hospital and she was referred to the Nero Surgeon.
The petitioner has also produced discharge summary issued by
the said hospital and the said document, history of head injury
lost year followed by the loss of vision in left eye. He has stated
that, prior to the accident his daughter was brilliant student and
used to participate in co-curricular activities and on account of
said injuries, she could not concentrate on her studies and in
future, she cannot participate in any co-curricular activities.
SCCH-11 40 MVC 2429, 2430,
2431, 2432/2014
44) In the cross-examination of PW.3, he has stated that,
doctor of K.R.Puram Super speciality Hospital that, his daughter
lost her vision and he does not know the name of the doctor who
told about loss of vision of daughter. He has admitted that, he
has not conducted the surgery to his daughter but he has stated
that, doctors only advised me not to conduct surgery for his
daughter till she recovers from fracture of forehead. There is
not document to show that doctors advised not to conduct
surgery to his daughter. Petitioner has produced true copy of
wound certificate which is marked at Ex.P.18 and as per the said
document, she was admitted in K.R.Puram Super speciality
Hospital on 28.4.2014 and discharged on 9.5.2014 and as per
the said document, there is black eye on left side, fracture of
both bones of right forearm, contusion of left frontal region with
extradural haematoma of left temporal region with crumo facial
fractures with optic neuruputhy and as per the opinion of
doctor, injury No.1 is simple in nature and injury No.2 and 3 are
grievous. As per the said document, black eye on left side is
simple injury. She has also produced discharged summary
issued by K.R.Puram Super speciality Hospital and as per the
said document, petitioner was admitted to the hospital in
SCCH-11 41 MVC 2429, 2430,
2431, 2432/2014
conscious state and complains about vomiting and continuous
B/L nasal bleed with black eye on left side and as per the said
document, petitioner was shifted to ICU and she was given
prophylactic antiepileptic drugs, antioedema measures,
antibiotics and other supportive measures. As per the said
documents, emergency intubations done on 28.5.2014 and put
on SIMV mode, necessary investigations done and neurosurgeon
opinion taken and advice followed. As per the said document,
petitioner sustained right wrist, torus fracture, radiuslulna, POP
B/E slab applied on 29.4.2014. As per the said documents, CT
brain shown, there are multiple cranio-facial fractures, small
contusion in the left frontal sub-artical region and thin
extradural hematoma in left temporal region. He has also taken
opinion of ophthalmologist and observed that, in equal and
sluggish reaction and gradually the vision in left eye decreased
by day 6 and PL in left eye was negative. Petitioner was shifted
to ward on 4.5.2014 and relatives were not willing for any
further investigation or treatment on left eye and discharged in
stable condition with some medical advice. On 5.5.2014, doctors
of Shankar Eye hospital narrated the opinion of neurosurgeon.
The petitioner has also produced discharge summary issued by
SCCH-11 42 MVC 2429, 2430,
2431, 2432/2014
Chinmaya Mission Hospital, with past history and as per said
document, there is history of head injury last year, followed by
loss of vision of left eye and petitioner admitted in the said
hospital on 16.3.2015 and discharged on 19.3.2015. On perusal
of the said documents, no treatment has been given to the
petitioner for loss of vision. The petitioner has produced some
reports and medical bills of Rs.1,70,784/-. But petitioner has
not examined treated doctor and also not produced disability
certificate. Petitioner has produced certificate issued by
Auxilium School dated 31.8.2015 stating that, she was irregular
to the school after the accident and she is unable to continue her
studies in 2015-16 due to the accidental injuries. This goes to
show that, she has lost some academic career and though PW.3
has stated about loss of vision, there is no evidence of treated
doctor and petitioner has not produced disability certificate.
Even though, petitioner has taken treatment in different
hospitals, she has not produced medical evidence before the
court by examining the treated doctor about loss of vision. In
the absence of evidence of treated doctor and disability
certificate, I feel it just and proper to award global compensation
of Rs.2,50,000/- along with interest at 6% p.a. from the date of
SCCH-11 43 MVC 2429, 2430,
2431, 2432/2014
petition till complete realisation. Accordingly, I answer this issue
No.3 in the partly affirmative in MVC No.2431/2014.
45) ISSUE No.3 in MVC No.2432/2014:- PW.4 has
stated in his evidence that, immediately after the accident, he
was shifted to K.R.Puram Super speciality Hospital and duty
doctors examined and X-rays were taken which revealed that, he
sustained grievous injuries i.e, fracture of right tibia and right
fibula, tenderness and swelling over middle 1/3 of right leg,
tenderness over right hand, abrassion over lower 1/3 of left leg
and undisplaced fracture of humerus and right wrist. He has
stated that, after first aid treatment, he was referred to KIMS
hospital where he underwent surgery i.e. open reduction
internal fixation and POP cast was applied and, after necessary
treatment discharged with an advise for follow up treatment,
restricted fracture movements and complete bed rest for 6
months. He has stated that, he has spent more than
Rs.2,00,000/- towards medical, conveyance, nourishment and
other incidental charges and doctors have advised him to
undergo one more surgery for removal of implants and doctors
advised not to undergo any strenuous activities. The petitioner
SCCH-11 44 MVC 2429, 2430,
2431, 2432/2014
has produced medical bills which are marked Ex.P.37 and as per
the said document, petitioner has spent Rs.49,996/- for the
purpose of treatment. So, I hold that, petitioner is entitled for
compensation of Rs.49,996/- under the head of medical
expenses. Hence, the petitioner is awarded for compensation of
Rs.49,996/- under the of Medical expenses.
46) The petitioner has produced wound certificate issued
by KIMS hospital which is marked at Ex.P.33 and as per the said
document, petitioner was admitted on 29.04.2014 and
discharged on 9.5.2014 and he was totally admitted in the said
Hospital for the total period of 11 days. During the period of
hospitalization, petitioner would have spent some amount
towards food, nourishment and other incidental expenses and
family members who attended him would have spent some
amount in hospital during hospitalization towards food and
other expenses. Considering the long period of hospitalisation,
cost of living, I hold that petitioner is entitled for compensation
of Rs.10,000/- under the head of Food, nourishment,
conveyance and attendant charges. Hence, the petitioner is
SCCH-11 45 MVC 2429, 2430,
2431, 2432/2014
awarded compensation of Rs.10,000/- under the head of Food,
nourishment, conveyance and attendant charges.
47) The petitioner was admitted in the KIMS hospital for
the period of 11 days and during the period of hospitalization, he
has lost his income and his family members who attended him
would have also lost some income. Considering this fact, I hold
that, petitioner is entitled for compensation of Rs.10,000/-
under the head of loss of income during laid up period. Hence,
the petitioner is awarded compensation of Rs.10,000/- under
the head of loss of income during laid up period.
48) As per the evidence of PW.1, he sustained fracture of
right tibia and right fibula, tenderness and swelling over middle
1/3 of right leg, tenderness over right hand, and abrasion over
lower 1/3 of left leg and undisplaced fracture of humerus and
right wrist. As per the evidence of PW.5, he examined the
petitioner on 5.10.2015 clinically and radiologically and found
limping on right side, shaft of the tibia and fibula is thickened,
irregular and non tender, knee, ankle and foot joint present. As
per his evidence, recent X-ray of right leg with knee ankle and
SCCH-11 46 MVC 2429, 2430,
2431, 2432/2014
foot shows old malunited tibia and fibula with implant in situ
with O.A. changes seen in knee, ankle and foot joint and patient
suffers from pain and having difficulty in walking, squatting,
sitting crossed legged position, climbing stairs, taking turns,
standing on affected limb for short duration. Due to the
accidental injuries, petitioner is unable to enjoy the amenities in
life and he has difficulties as stated by PW.5 and he has to
depend upon others for routine activities. Considering all these
aspect and difficulties in routine activities of petitioner, I hold
that, petitioner is entitled for compensation of Rs.25,000/-
under the head of loss of amenities in life. Hence, the petitioner
is awarded compensation of Rs.25,000/- under the head of loss
of amenities in life.
49) As per the evidence of PW.5, on recent examination
report, petitioner sustained malunited tibia and fibula with
implant in situ and he has difficulty in walking, squatting,
sitting crossed legged position, climbing stairs, taking turns,
standing on affected limb for short duration and he has suffered
permanent disability at 30.07% to right lower limb and 10.23%
to the whole body. This goes to show that, petitioner has
SCCH-11 47 MVC 2429, 2430,
2431, 2432/2014
suffered whole body disability and unable to carry out his
activities and he has to suffer through out his life. Considering
this fact, I hold that, petitioner is entitled for compensation of
Rs.30,000/- under the head of pain and agony. Hence, the
petitioner is awarded compensation of Rs.30,000/- under the
head of pain and agony.
50) PW.4 has stated in his evidence that, prior to the
accident, he was hale and healthy and he was doing work as
cleaner and earning Rs.10,000/- per month and due to the
accidental injuries, he has lost his income. He has admitted in
the cross-examination that, he has not produced documents to
show that, he was earning Rs.10,000/- per month. Petitioner
sustained whole body disability at 30.07% to right lower limb
and 10.23% to the whole body and he has restricted movements
to the right hand wrist and as per recent X-ray of right leg with
knee ankle and foot shows old malunited tibia and fibula with
implant in situ with O.A. changes seen in knee, ankle and foot
joint and patient suffers from pain and having difficulty in
walking, squatting, sitting crossed legged position, climbing
stairs, taking turns, standing on affected limb for short duration.
SCCH-11 48 MVC 2429, 2430,
2431, 2432/2014
He has assessed disability at 26.85% to the right upper limb and
8.95% to whole body disability. The petitioner has suffered total
disability at 19.18%. In the cross-examination of PW.5, he has
stated that, he has assessed the disability on radiological
examination, clinical examination and combined formula and he
has noted the same in the clinical notes in the OPD card. He
has admitted that, petitioner has reached the maximum stage of
recovery and he has no neurological deficiency. He has
admitted that, he came to the conclusion about disability on the
basis of combined formula. He has denied that he has assessed
disability randomly without following guidelines of combined
formula. He has admitted that, he has not mentioned method of
calculation of disability either in his chief affidavit or in OPD
card about disability assessment of right wrist and also denied
that, without application of combined formula, conclusion
regarding disability cannot be reached. The petitioner has not
produced document about his age. In the wound certificate, the
age of the petitioner is shown as 40 years. Even in the medical
bills also, the age of the petitioner is shown as 40 years. There
are no documents about accurate age of the petitioner. If the
age of the petitioner is taken in between 41-45, the multiplier
SCCH-11 49 MVC 2429, 2430,
2431, 2432/2014
applicable to facts of the case is 14 as per decision of Hon'ble
Supreme Court reported in Sarla Verma case (AIR 2009 SC
3104). He has not adduced the evidence of employer and he has
not produced the documents about his income. If the notional
income of the petitioner is taken at Rs.5,000/- per month, as per
decision of Hon'ble Supreme Court reported in (Rajesh V/s
Rajbeer Singh and other) 2013 ACJ 1403, there shall be
addition of 50% to the actual income. Then income of the
petitioner will be Rs.7,500/- per month. The learned counsel
for petitioner relied upon decision reported in (2011) 1 SCC 343
(Raj Kumar Vs. Ajay Kumar and another) wherein the Hon'ble
Supreme Court as held that, " in disability certificate extent of
disability of a limb (or part of the body) cannot be assumed to be
extent of disability of whole body and Tribunal should not
mechanically apply percentage of permanent physical disability
as percentage of economic loss or loss of earning capacity, but
must asses functional disability". The Hon'ble Supreme Court
has also held that, "Tribunal overlooked fact that disability
certificate referred to 45% disability to left lower limb and not to
functional disability of the body and permanent functional
disability of body assessed as 25%, loss of future earning
SCCH-11 50 MVC 2429, 2430,
2431, 2432/2014
capacity as 20%". It is also held that, "in cases of injured
claimant with a disability, no need to deduct 1/3rd out of income
towards personal and living expenses". He has also relied upon
decision reported in A.I.R 2011 SUPREME COURT 1785
(Nagarajappa Vs. Divisional Manager, Oriental Insurance Co.
Ltd.,) in the said decision, it is held that "deformity severely
affecting his ability to perform his work as coolie or do any other
manual work and also his ability to find work". It is held that,
"disability assessed by doctor of left arm ought to be considered
and not disability assessed of whole body". He has relied upon
decision reported in 2014 A.I.R SCW 2535 (Dinesh Singh Vs.
Bajaj Allianz General Insurance Co. Ltd.,) wherein the Hon'ble
Supreme Court has held that, there shall not be deductions
towards personal and living expenses in case of injured
claimants with disability. As per A.I.R 2011 SC 1785
(Nagarajappa Vs. Divisional Manager, Oriental Insurance Co.
Ltd.,) the disability assessed by the doctor on left upper limb is
to be considered. The Hon'ble Supreme Court has held in para
10 as under - "where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation under the
head of loss of future earnings, would depend upon the effect and
SCCH-11 51 MVC 2429, 2430,
2431, 2432/2014
impact of such permanent disability on his earning capacity. The
Tribunal should not mechanically apply the percentage of
permanent disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage of economic
loss, that is, the percentage of loss of earning capacity, arising
from a permanent disability will be different from a permanent
disability will be different from the percentage of permanent
disability". Then loss of income will be as calculated under:
Rs.7,500/- x 12 x 14 x 19.18/100 = Rs.2,41,668/-
Therefore I hold that, the petitioner is entitled for the
compensation of Rs.2,41,668/- under the head of loss of
income.
51) PW.5 has stated in his evidence that, petitioner has
to undergo one more surgery for removal of implants which will
cost of Rs.35,000/- to Rs.40,000/-. But he has not issued
estimation about cost of removal of implants. On perusal of the
X-ray and record, the implants are still in situ and petitioner
needs one more surgery for removal of implants. Considering
this fact, I feel it just and proper to award the compensation of
SCCH-11 52 MVC 2429, 2430,
2431, 2432/2014
Rs.30,000/- under the head of future medical expenses which
shall not carry any interest.
52) The Calculation table stands as follows:
1) Medical expenses Rs. 49,996/-
2) Food, nourishment & Rs. 10,000/-
conveyance
3) Loss of income during laid Rs. 10,000/-
period
4) Pain and agony Rs. 30,000/-
5) Loss of amenities in life Rs. 25,000/-
6) Loss of income Rs. 2,41,668/-
7) Future medical expenses Rs. 30,000/-
Total Rs. Rs. 3,96,664/-
So, I hold that petitioner is awarded for compensation of
Rs.3,66,664/- along with interest at the rate of 6% p.a. from the
date of petition till its realisation.
53) The respondent No.1 is the insurer of the offending
vehicle and respondent No.2 is the owner of the said vehicle and
as on the date of accident, policy was in force. Hence, the
SCCH-11 53 MVC 2429, 2430,
2431, 2432/2014
respondent No.1 is liable to indemnify respondent No.2. So I
hold that, in MVC No.2429/2014, petitioner is entitled for
compensation of Rs.21,05,000/- and in MVC No.2430/2014,
petitioner is entitled for compensation of Rs.4,32,500/- and in
MVC No.2431/2014, petitioner is entitled for global
compensation of Rs.2,50,000/- and in MVC No.2432/2014,
petitioner is entitled for compensation of Rs.3,96,664/- along
with interest @ 6% p.a. from the date of, petition from
respondent No.1, till complete realisation. Accordingly, I answer
this issue No.3 in partly affirmative in all cases.
54) ISSUE No.4 IN ALL CASES: In view of answers to
issues No.1to 3 in all cases, I proceed to pass the following:
ORDER
The petitions filed in MVC No.2429/2014 to MVC No.2432/2014 under Section 166 of M.V. Act are partly allowed with costs.
The Petitioners in MVC 2429/2014 are entitled for compensation of Rs.21,05,000/- along with interest at the rate of 6% p.a. from the date of petition till complete realization.
SCCH-11 54 MVC 2429, 2430,2431, 2432/2014 The respondent No.1 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
Out of the awarded compensation amount, Rs.12,00,000/- is apportioned to the share of petitioner No.1 including compensation towards the head consortium and Rs.9,05,000/- is apportioned to the share of petitioners No.2.
In case of deposit of the awarded compensation amount by respondent No.1, Rs.5,00,000/- shall be deposited in FD in any nationalised or scheduled bank for a period of 5 years, out of the share of petitioner No.1 and remaining amount of Rs.7,00,000/- along with accrued interest in award amount shall be released by way of account payee crossed cheque, on proper identification and verification and Rs.5,00,000/- shall be deposited in FD in any nationalised or scheduled bank for a period of 5 years, out of the share of petitioner No.2 and remaining amount of Rs.4,50,000/- shall be released by way of account payee crossed cheque, on proper identification and verification and petitioner No.1 and 2 are at liberty to withdraw the accrued interest periodically.
** The Petitioner in MVC 2430/2014 is entitled for compensation of Rs.4,32,500/- along with interest at SCCH-11 55 MVC 2429, 2430, 2431, 2432/2014 the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.1 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation amount by respondent No.1, Rs.2,00,000/- shall be deposited in FD in the name of petitioner in any nationalised or scheduled bank for a period of 5 years and remaining amount of Rs.2,32,500/- along with accrued interest shall be released by way of account payee crossed cheque, on proper identification and verification. Petitioner is at liberty to withdraw the accrued interest periodically.
** The petitioner in MVC 2431/2014 is entitled for global compensation of Rs.2,50,000/- along with interest at the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.1 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
SCCH-11 56 MVC 2429, 2430,2431, 2432/2014 In case of deposit of the awarded compensation amount by respondent No.1, since the petitioner is minor, entire amount shall be deposited in FD in the name of minor petitioner in any nationalised or scheduled bank till she attains the age of majority and minor guardian of the Petitioner is at liberty to withdraw the accrued interest periodically.
** The Petitioner in MVC 2432/2014 is entitled for compensation of Rs.3,96,664/- along with interest at the rate of 6% p.a. from the date of petition till complete realization.
The respondent No.1 is hereby directed to deposit the entire awarded amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation amount by respondent No.1, Rs.2,00,000/- shall be deposited in FD in the name of petitioner in any nationalised or scheduled bank for a period of 5 years, and remaining amount of Rs.1,96,664/- along with accrued interest shall be released by way of account payee crossed cheque, on proper identification and verification. Petitioner is at liberty to withdraw the accrued interest periodically.
SCCH-11 57 MVC 2429, 2430,2431, 2432/2014 Advocate fee is fixed at Rs.1,000/- in each case.
Draw award accordingly.
(Original copy of Judgment shall be kept in MVC 2429/2014 and copy of the same shall be kept in MVC 2430/2014, MVC 2431/2014 and MVC 2432/2014) (Typed to my dictation by the Stenographer, corrected and pronounced by me in open court on this 13th day of November, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Manjula PW.2 - Manjula PW.3 - Narayanaswamy PW.4 - Puttaiah PW.5 - Dr. Somashekar
DOCUMENTS MARKED FOR PETITIONERS:
Ex.P.1 - True copy of FIR
Ex.P.2 - True copy of Complaint
Ex.P.3 - True copy of Spot Mahazar
SCCH-11 58 MVC 2429, 2430,
2431, 2432/2014
Ex.P.4 - True copy of Statement of Puttaiah
Ex.P.5 - True copy of Inquest panchanama
Ex.P.6 - True copy of IMV report
Ex.P.7 - True copy of PM report
Ex.P.8 - True copy of Charge sheet
Ex.P.9 - True copy of Ration card
Ex.P.10 - True copy of Aadhaar card
Ex.P.11 - True copy of Aadhaar card
Ex.P.12 - True copy of driving licence
Ex.P.13 - Statement of accounts
Ex.P.14 - RTC extract
Ex.P.15 - True copy of Inquest panchanama
Ex.P.16 - True copy of PM report
Ex.P.17 - Progress report
Ex.P.18 - True copy of Wound certificate
Ex.P.19 - Discharge summary
Ex.P.20 - Certificate issued by Shankar Eye hospital
Ex.P.21 - Discharge summary
Ex.P.22 - Blood Bank report
Ex.P.23 - 54 Medical bills
Ex.P.24 - Discharge bill
Ex.P.25-31 - 7 Deposit receipts SCCH-11 59 MVC 2429, 2430, 2431, 2432/2014 Ex.P.32 - Certificate issued by School Ex.P.33 - True copy of Wound certificate Ex.P.34 - Two discharge summaries Ex.P.35 - True copy of discharge summary Ex.P.36 - One OPD card Ex.P.37 - 48 Medical bills Ex.P.38 - 18 Medical prescriptions Ex.P.39-45 - 7 Advance bills Ex.P.46-50 - 5 X-rays Ex.P.51&52- 2 MRI Scan X-rays Ex.P.53 - True copy of statement Ex.P.54 - Inpatient records Ex.P.55 - One OPD card Ex.P.56-63 - 8 X-rays WITNESSES EXAMINED FOR RESPONDENTS :
- NIL -
DOCUMENTS MARKED FOR RESPONDENTS :
- NIL -
I ADDL.SCJ. & MACT.