Bangalore District Court
In Prabhavathi vs In 1. P.G. Dharmaiah on 14 October, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 14th DAY OF OCTOBER, 2014
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,LL.B(SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
M.V.C No.2504/2014 & MVC 2505/2014
PETITIONER IN Prabhavathi
MVC 2504/2014: W/o M. Suresh,
Aged about 45 Years.
Residing at:
No.138, Gonigattapura,
Sarjapura Circle,
Gonigattapura,
Anekal,
Bangalore Urban District.
(Sri. A.Sreenivasaiah ----- Advocate)
PETITIONER IN J.C. Kushal
MVC 2505/2014: S/o C. Chandra Reddy,
Aged about 20 Years.
Residing at:
No.11, Jantagondanahalli,
Sarjapura, Muthsandra,
Anekal,
Bangalore Urban District.
(Sri. A. Sreenivasaiah------ Advocate)
SCCH-11 2 MVC 2504/2014 & 2505/2014
- V/S -
RESPONDENTS IN 1. P.G. Dharmaiah,
BOTH THE CASES: S/o Chengaiah,
No.8/24-A, Palamaner,
Chittoor District, A.P.
(Exparte)
2. The Manager,
Shriram Gen. Insurance Company Ltd.,
S & S Corner Building,
Hospital Road,
Shivajinagar,
Bangalore-560 001.
(Sri. K. Prakash--------- Advocate)
JUDGMENT
Petitioners have filed these claim petitions against the respondents claiming the compensation for the injuries sustained in the road traffic accident.
2) It is averred that, on 8.3.2014 at about 3:30pm, the petitioners were proceeding on motor cycle bearing No. KA-51-EH- 324 from Varthur Kodi towards Jatgondanahalli and reached infront of Varthur Masjid, Varthur-Sarjapura Main Road, Bangalore. At that time, the driver of lorry bearing No. KA-34- SCCH-11 3 MVC 2504/2014 & 2505/2014 8166 has driven the said vehicle in rash and negligent manner endangering human life with high speed and lost control over the vehicle and dashed to the motor cycle of the petitioners from behind. Due to said impact, the petitioners sustained grievous injuries. Immediately after the accident, the petitioners were taken to City hospital, Varthur and after first aid treatment, they were taken to Jeevika hospital, Bangalore wherein they were admitted as inpatient. The petitioners were discharged from the hospital with an advice for physiotherapy exercises, non weight bearing and periodical check up. The petitioners are attending the hospital for regular follow up treatment. Due to the accidental injuries, the petitioners have suffered permanent disability and unable to walk, raise hand, to hold and lift the weight. Petitioner Prabhavathi is unable to do household work. She was aged about 45 years at the time of accident and she was hale and healthy and she was doing tailoring work and earning more than Rs.10,000/- per month. Due to the accidental injuries and permanent disability, she is unable to do her work.
SCCH-11 4 MVC 2504/2014 & 2505/2014
3) Petitioner J.C.Kushal has undergone surgery of ORIF with K-wire fixation under SA on 10.3.2014. the doctors have given advice for strict bed rest, physiotherapy exercises, limb elevation, non bearing weight and periodical check up. He is attending the follow up treatment as per advice of doctors. Due to the accidental injuries and permanent disability, the petitioner cannot walk freely, sit cross legged, squat, stand firmly, climb steps and use Indian toilet and he is unable to do his regular activities.
4) Petitioner Kushal was aged about 20 years at the time of the accident and he was a student of B.E. 6th semester and also doing web designer job and earning more than Rs.15,000/- per month. Due to the accidental injuries, the petitioner has lost his income and he is unable to do web designer work. The accident has taken place due to rash and negligent driving by the driver of offending vehicle. The jurisdictional police have registered the case against the driver of offending vehicle. Hence, the petitioners have claimed the compensation as prayed in their respective claim petitions.
SCCH-11 5 MVC 2504/2014 & 2505/2014
5) Though, notice is served upon the respondent No1, he has not appeared and contested the claim petition. Hence, the respondent No1 has been placed exparte.
6) Respondent No2 has filed written statement and denied the contents of claim petition. It is admitted that, the respondent No2 has issued insurance policy in respect of vehicle bearing No.KA-34-8166 under policy bearing No.10003/31/13/715981 which was valid from 31.3.2013 to 30.3.2014, but the liability of the respondent No2 is subject to the terms and conditions of insurance policy, exceptions, limits and endorsement of the policy, compliance of section 64VB of Insurance Act, law governing thereto and also other enactments corresponding to the incident and other aspects and matters involved in adjudicating the matter and finality of the liability of the respondents. The petitioners have not approached this tribunal with clean hands and they have filed false complaint against insured vehicle by twisting the facts and colluding with concerned persons in order to get the compensation from this tribunal by misusing the judicial process. It is contended that, SCCH-11 6 MVC 2504/2014 & 2505/2014 situation of alleged incident has been twisted and described as if the insured vehicle is involved and responsible for the alleged accident and stated facts are far from truth. The petitioner was riding motor cycle without knowledge of riding and without possessing valid and effective driving licence and in rash and negligent manner and they have fallen down on their own negligence. The insured vehicle was not at all involved in the accident. Without prejudice, if it is proved that, insured vehicle is involved in the alleged accident and drivers of both vehicles are responsible for the accident, the liability may be reduced to the extent of negligence of the petitioner. The petitioners have to prove that, driver of offending vehicle and rider of motor cycle were holding valid and effective driving licence as on the accident to drive class of vehicles at the time of accident and they were not disqualified to drive the vehicles. The respondent No1 has knowingly entrusted the said vehicle to such person who was not holding valid and effective driving licence as on the date of accident and thereby violated the terms and conditions of insurance policy. If the respondent No1 fails to appear and contest the claim petition, the SCCH-11 7 MVC 2504/2014 & 2505/2014 respondent No2 may be permitted to defend the case on all grounds available to the respondent No1 under section 170 of Motor Vehicles Act and also be permitted to amend written statement under changed circumstances as copies of documents which the petitioners would rely are not available to the respondent No2. As per section 134(c) of Motor Vehicles Act, it is mandatory duty on the part of respondent No1 to furnish particulars of policy, date, time and place of accident, particulars of injured, name of driver, particulars of driving licence. But the respondent No1 has not furnished the information and he has not complied mandatory requirements. If alleged cause of action is proved, the respondent No2 is not liable to indemnify the respondent No1 for non compliance of mandatory requirements and breach of contractual obligations. As per section 158(6) of Motor Vehicles Act, it is mandatory duty on the part of jurisdictional police to forward all documents to the concerned insurer within 30 days from the date of information. But, jurisdictional police have failed to forward all documents to the insurer and not complied statutory requirements. The petitioners may be directed to furnish SCCH-11 8 MVC 2504/2014 & 2505/2014 all documents to the respondent No2 and respondent No2 may be permitted to file comprehensive written statement. It is also contended that, respondent No2 has issued insurance policy subject to the terms and conditions of insurance policy and respondent No1 is obligated to act in accordance with section 3,66 of Motor Vehicles Act and Rule 3 of Central Motor Vehicle Rules and subject to limits and defences under section 147 and 149 of Motor Vehicles Act. There is no obligation on the part of respondent No2 to indemnify the liability of respondent No1unless petitioners prove liability and obligation of respondent No2. The respondent No1 plied offending vehicle without valid permit and fitness certificate. If petitioners establish alleged claims and contentions and maintainability of claim petitions against the respondent No2 and need for spending money for any future medical expenses or they delay the proceedings, no interest needed to be granted on such future expenses and to restrict the rate of interest on the compensation amount to 6% per annum or lowest Bank rates. Therefore, it is prayed for dismissal of claim petitions.
SCCH-11 9 MVC 2504/2014 & 2505/2014
7) Petitioner in M.V.C.No.2504/2014 herself examined as PW1 and got marked ExP.1 to 22. Petitioner in M.V.C.No.2505/2014 himself examined as PW2 and got marked ExP.23 to 32 and petitioners have examined Dr.S.Ramachandra S/o Subba Shetty as PW3 and 4 and got marked ExP.33 to 36 and closed the evidence. The respondent No.2 has examined Sri. Yellappa S/o Putta Naik as RW1 and closed the evidence.
8) Heard the arguments of learned counsel for petitioners and learned counsel for respondent No2 and perused the evidence on record.
9) On the basis of pleadings of the parties, following issues have been framed:
Issues in M.V.C.No.2504/2014
1. Whether petitioner proves that on 8.3.2014 at about 3:30pm, when she was riding on motor cycle bearing No.KA-51-EH-
324 along with Padmavathi as pillion rider from Varthur Kodi towards Jantagondanahalli and reached infront of Varthur Maszid, Varthur Sarajapura Main Road, Bangalore, at that time, driver of SCCH-11 10 MVC 2504/2014 & 2505/2014 lorry bearing No.KA34-8166 driven the same in rash and negligent manner with high speed and dashed to the motor cycle by which petitioner sustained grievous injuries?
2. Whether respondent No2 proves that, as on the date of accident, driver of offending vehicle was not holding valid and effective driving licence and said vehicle plied on the road without permit and fitness certificate and the respondent No1 violated terms and conditions of insurance policy?
3. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4. What order or award?
Issues in M.V.C.No.2505/2014
1. Whether petitioner proves that on 8.3.2014 at about 3:30pm, when she was proceeding on motor cycle bearing No.KA-
51-EH-324 as pillion rider ridden by rider from Varthur Kodi towards Jantagondanahalli and reached infront of Varthur Maszid, Varthur Sarajapura Main Road, Bangalore, at that time, driver of lorry bearing No.KA34-8166 driven the same in rash and negligent manner with high speed and dashed to the motor cycle by which petitioner sustained grievous injuries?
2. Whether respondent No2 proves that, as on the date of accident, driver of SCCH-11 11 MVC 2504/2014 & 2505/2014 offending vehicle was not holding valid and effective driving licence and said vehicle plied on the road without permit and fitness certificate and the respondent No1 violated terms and conditions of insurance policy?
3. Whether the petitioner is entitled for compensation? If so, what amount and from whom?
4. What order or award?
10) My findings on the above issues are as under:
M.V.C.No.2504/2014 Issue No.1 : Affirmative;
Issue No.2 Negative;
Issue No.3 : Partly Affirmative; the petitioners are entitled
to compensation of Rs.1,13,078/- with interest @ of 6% p.a. from the date of petition till complete realization, from respondent No.2 Issue No.4 : As per final order, for the following :
M.V.C.No.2505/2014 Issue No.1 : Affirmative;
Issue No.2 Negative;
Issue No.3 : Partly Affirmative; the petitioners are entitled
to compensation of Rs.1,25,606/- with interest @ of 6% p.a. from the date of petition till complete realization, from respondent No.2 SCCH-11 12 MVC 2504/2014 & 2505/2014 Issue No.4 : As per final order, for the following :
-:REASONS:-
11) ISSUE NO.1 in MVC 2504/2014 and MVC 2505/2014:
PW.1 has stated in her evidence that, 08.03.2014 at about 3.30 p.m., she was proceeding on Motor cycle bearing Regn. No.KA-51- EH-324 along with J.C. Kushal from Varthur Kodi towards Jantagondanahalli and when she reached near Varthur Masjid, Varthur-Sarjapura main road, Bangalore, at that time, driver of lorry bearing Regn. No.KA-34-8166 has driven the said lorry in rash and negligent manner, endangering human life with high speed and dashed to the Motor cycle from behind. She has stated that, the accident taken place due to rash and negligent driving by the driver of offending vehicle. The jurisdictional police have registered case against the driver of the said vehicle.
12) PW.2 has also supported the version of PW.1. In the cross-examination of PW.1, she has admitted that, the vehicle movement at Varthur Sarjapura road is more and there is no road divider to Varthur-Sarjapura road. He has stated that, road at the SCCH-11 13 MVC 2504/2014 & 2505/2014 place of accident is 25-40 feet and the edge of tar road is at the distance of 4-5 feet from the place of accident. She has stated that, the motor cycle on which she was proceeding is belonged to his sister's son and it is having insurance policy. She has stated that, after falling from the motor cycle, she had seen the lorry number, which caused the accident and she filed complaint to the police station. She has denied the suggestion that, she sustained injuries due to the rash and negligent driving by the rider of the motor cycle. She has also denied the suggestion that, she has colluded with police and owner of the lorry and filed complaint to the police.
13) In the cross-examination of PW.2, he has stated that, the motor cycle which is ridden by him is belonged to him. He has admitted that, Varthur-Sarjapura Road at the place of accident is strait way and road at the place of accident is having width of 35-
40 feet. He has stated that, he had not observed the Lorry prior to the accident and after falling from the motor cycle. He has SCCH-11 14 MVC 2504/2014 & 2505/2014 stated that, they have filed complaint to the police on the next day of the accident.
14) The 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 08.03.2014 at about 3.30 p.m., PW.1 and 2 were proceeding on Motor cycle bearing No.KA.51-EH-324 who was ridden by PW.2 on Varthur-Sarjapura main road from Varthur Kodi towards Jantagondanahalli and when they came near Varthur Masjid, at that time, the driver of Lorry bearing Regn. No.KA-34- 8166 has driven the said lorry in rash and negligent manner, endangering human life and dashed to the motor cycle of the petitioners. After the accident, petitioners were taken to the Jeevika hospital in 108 Ambulance vehicle and police visited to the said hospital on 08.03.2014 at about 1.30 am and registered the F.I.R. The petitioners have produced true copy of mahazar drawn by the police, which is marked as Ex.P.3. The petitioners have also produced true copy of Motor Vehicle Inspection report and as per the said document, no damages found to the Lorry bearing No. SCCH-11 15 MVC 2504/2014 & 2505/2014 No.KA-34-8166 and rear lady gripper were damaged to the Motor cycle bearing No.KA.51-EH-324 and accident was not due to any mechanical defect. The petitioner has produced true copy of charge sheet, which is marked as Ex.P.4 and police have filed charge sheet against the driver of the offending vehicle for the offences punishable under section 279, 338 of I.P.C. On perusal of the charge sheet and enclosures and oral evidence of PW.1 and 2, they reveal that, the accident has taken place due to rash and negligent driving by the driver of offending vehicle. So, I hold that, petitioners have proved rash and negligent driving by the driver of the offending vehicle. So, I answer issue No.1 in both cases in Affirmative.
15) Issue No.2 in both the cases : The respondent No.2 has taken contention that, as on the date of the accident, the rider of the offending vehicle was not having permit and fitness certificate and respondent No.1 has violated the terms and conditions of insurance policy, But this contention of the respondent No.2 is not at all acceptable. Because, the respondent SCCH-11 16 MVC 2504/2014 & 2505/2014 No.2 has adduced the evidence of licensing authority and he has not produced any documents. The jurisdictional police have registered the case and after investigation, they have filed charge sheet for the offences punishable under Section 279,338 of IPC and they have not filed charge sheet against the rider of offending vehicle for the offences punishable under Section 3 R/W.S.181 of Motor Vehicle Act for not possessing valid and effective driving licence by the driver of the offending vehicle. Even police have not filed charge sheet against the driver or owner of the vehicle for not having permit and fitness certificate. The respondent No.2 has not adduced the evidence of licensing authority and he has not produced any documents in support of said contention. So I hold that, the respondent No.2 has failed to prove the said contention regarding the driving licence and permit and fitness certificate. So, I hold that, the contention of the respondent No.2 is not acceptable. So I answered issue No.2 in both cases in Negative.
16) ISSUE No.3 IN MVC 2404/2014: PW.1 has stated in her evidence that, immediately after the accident, she was shifted SCCH-11 17 MVC 2504/2014 & 2505/2014 to City Hospital, Varthur and after first aid treatment, she was shifted to the Jeevika Hospital, Bangalore and admitted as an inpatient for 10 days. She has stated that, she has sustained fracture neck of radius and other multiple injuries and doctors advised her to take bed rest, physiotherapy exercises and periodical checkups and she is taking follow-up treatment. The petitioner has produced Ex.P.7 which is discharge summary issued by the Jeevika Hospital and as per the said document, she sustained fracture neck of radius The petitioner has produced medical bills of Jeevika Hospital and as per the said documents, the petitioner has spent Rs.23,478/- for the purpose of treatment. So, I hold that, petitioner is entitled for compensation of Rs.23,478/- under the head of Medical Expenses.
17) The petitioner has produced discharge summary issued by the Jeevika Hospital and as per the said document, she was admitted in the said hospital on 08.03.2014 and discharged on 11.03.2014 and she was totally admitted in the hospital for 4 days. During the period of hospitalization, the petitioner would have lost SCCH-11 18 MVC 2504/2014 & 2505/2014 some income and her family members would have also lost some income. Considering the period of hospitalization and cost of living, I feel it just and proper to award the compensation of Rs.6,000/- under the head of food, conveyance, nourishment and attendant charges.
18) PW1 has stated in her evidence that, she has sustained neck of radius left elbow (Distal Radio Ulnar Joint) and prior to the accident, she was doing tailoring work and she was earning Rs.10,000/- per month and due to the accidental injuries, she is unable to attend her work. Due to the accidental injuries, the petitioner would have suffered physically and mentally and she has to suffer throughout her life. Considering this fact, I feel it just and proper to award the compensation of Rs.30,000/- under the head of pain and agony. Hence, the petitioner is awarded the compensation of Rs.30,000/- under the said head.
19) PW1 has sustained neck of radius left elbow (Distal Radio Ulnar Joint) and said injury is grievous injuries and due to the accidental injuries, she has to suffer physically and mentally. SCCH-11 19 MVC 2504/2014 & 2505/2014 Though fractures are united, the petitioner has to suffer pain on the affected site and she has to depend upon others and she is unable to enjoy amenities as earlier. So I feel it just and proper to award compensation of Rs.20,000/- under the head of Loss of amenities. Hence, the petitioner is awarded compensation of Rs.20,000/- under the said head.
20) The petitioner has suffered fracture in the accidental injuries, which is clearly from the discharge summary. As per the evidence of PW.3, petitioner sustained neck of radius left elbow (Distal Radio Ulnar Joint) and petitioner was treated on 11.03.2014. As per his evidence, the fracture neck of radius is united. In the cross-examination of PW.3, he has admitted that, the petitioner has not undergone any operation and petitioner has not suffered muscle wasting and there is no loss of muscle power. He has also admitted that, there is no restriction of movements to the petitioner and hand components are normal and at the time of taking follow-up treatment if any discrepancy found out, it will be advised for further treatment and same will be noted in the follow- SCCH-11 20 MVC 2504/2014 & 2505/2014 up records. He has also admitted that, the fractures are united. He has also admitted that, he has not treated personally and he is not competent to assess the disability. On perusal of the recent X- rays dated: 11.08.2015, the fractures are united and petitioner has not undergone any operation and there are no implants. Even on perusal of the cross-examination portion of PW.3, there is no restriction of movements, hand components are normal and there is no wastage of muscles and the fractures are united. But, the disability assessed by the PW.3 for combing, plating, buttoning and difficulty to lift overhead objects, remove and keeping in the same place at 17% on higher side. Because, in para No.3 of chief affidavit, PW.3 himself has stated that, the range of movements of left elbow joint and left wrist joints are normal. But he has assessed the disability at 17.2% to the left upper limb and 6% to the whole body. Even there is no restriction of movements and diameters of upper limb and hand components are normal. So, I feel it just and proper to consider the whole body disability at 4%. Though petitioner has stated in her evidence that, she was doing tailoring work and earning Rs.10,000/- per month, she has not SCCH-11 21 MVC 2504/2014 & 2505/2014 produced any documents. So, I feel it just and proper to consider the notional income of petitioner at Rs.5,000/-. Since the petitioner is aged about 45 years, the multiplier applicable to the facts of the case is 14 as per the decision reported in AIR 2009 SC 3104 (Sarla Verma's case). As per the decision of Hon'ble Supreme Court reported in Rajesh and others V/s Rajbir Singh and others, 2013 ACJ 1403, there will be addition of 50% towards future prospectus to the persons aged below 50 years. If 50% is added to the notional income, the net income of the petitioner will be Rs.7,500/. If 1/3rd is deducted towards personal expenses of the petitioner, it will be Rs.5,000/-. Then loss of income will be as under:
Rs.5,000/-x12x14x4/100 = 33,600/-
So, I hold that petitioner is entitled for compensation of Rs.33,600/- under the head of loss of income. Since petitioner has not undergone any fixation of implants, there is no need of any further surgery. So, petitioner is not entitled for any compensation under the head of future medical expenses. So, I SCCH-11 22 MVC 2504/2014 & 2505/2014 hold that, the petitioner is entitled for compensation under different heads which is calculated as under:
1) Medical expenses Rs. 23,478/-
2) Food, nourishment & conveyance Rs. 6,000/-
3) Loss of income Rs. 33,600/-
4) Loss of amenities in life Rs. 20,000/-
5) Pain and agony Rs. 30,000/-
Total Rs. Rs.1,13,078/-
21) Respondent No.1 is the owner of the offending vehicle and respondent No.2 is the insurer and as on the date of accident, insurance policy was inforce. The respondent No.2 is liable to pay the compensation of Rs.1,13,078/- to the petitioner along with interest at the rate of 6% per annum from the date of suit till its realization. So, I answer this issue No.3 in MVC No.2504/2014 in partly affirmative.
22) Issue No.3 in MVC No.2505/2014: PW.2 has stated in his evidence that, after the accident, he was shifted to City Hospital, Varthur and after first aid treatment, he was shifted to SCCH-11 23 MVC 2504/2014 & 2505/2014 Jeevika Hospital, Bangalore and he has admitted to the hospital for 7 days. He has stated that, he has sustained fracture of right foot and other multiple injuries and he underwent surgery of ORIF and K-wire fixation under SA on 10.03.2014. He has also stated that, doctors have advised for bed rest, physiotherapy exercises, limb elevation, non-weight bearing and for periodical checkups and he has visited the hospital for periodical checkups. The petitioner has produced medical bills, which are marked as Ex.P.14 and 23 and as per the said documents, the petitioner has spent Rs.80,880.50ps as per Ex.P.14 which are 20 medical bills. The petitioner has spent Rs.1,717/- as per Ex.P.23 (5 Medical bills).
So, I hold that, petitioner is entitled for compensation of Rs.82,606/- under the head of Medical Expenses. Hence, the petitioner is awarded compensation of Rs.82,606/- under the head of medical expenses.
23) The petitioner has produced discharge summary issued by Jeevika Hospital and as per the said document, he was admitted in the said hospital on 08.03.2014 and discharged on SCCH-11 24 MVC 2504/2014 & 2505/2014 14.03.2014 and he was admitted as inpatient in the said hospital totally for the period of 7 days. During the period of hospitalization, he would have spent some amount towards food, nourishment, conveyance and attendant charges and his family members who attended him would have also incurred some expenses for food and other incidental charges. Considering the period of hospitalization and cost of living, I feel it just and proper to award the compensation of Rs.8,000/- under the head of Food, conveyance, nourishment and attendant charges. Hence, the petitioner is awarded compensation of Rs.8,000/- under the head of Food, conveyance, nourishment and attendant charges.
24) The petitioner was admitted in the Jeevika Hospital for 7 days. But the petitioner is a student by avocation and he has no source of income and he was studying in BE-6th Semester, question of loss of income does not arise at all. Hence, petitioner is not entitled for any compensation under the head of loss of income during laid up period.
SCCH-11 25 MVC 2504/2014 & 2505/2014
25) The petitioner has sustained grievous injuries and he has undergone fixation of K-wire in the hospital and even though, the fractures are united, petitioner has to undergo deep pain and agony and he has suffered physically and mentally and he has to undergo deep pain and agony throughout his life. Though the fractures are united, there will be pain in the effected part. Considering the nature of injuries, I hold that, petitioner is entitled for compensation of Rs.20,000/- under the head of Pain and agony. Hence, the petitioner is awarded the compensation of Rs.20,000/- under the head of Pain and agony.
26) Though the fractures are united, petitioner has to suffer physically and he cannot do his activities as earlier and he has to depend upon others and he has to suffer physically due to the accidental injuries. So, I hold that, petitioner is entitled for compensation of Rs.15,000/- under the head of loss of amenities in life. Hence, the petitioner is awarded the compensation of Rs.15,000/- under the head of loss of amenities in life. SCCH-11 26 MVC 2504/2014 & 2505/2014
27) PW.2 has stated in his evidence that, prior to the accident, he was aged about 20 years and he was studying in VI Sem B.E. and he was also doing Web designing job and earning more than Rs.15,000/- per month and due to the accidental injuries, he has lost his income. He has stated about difficulties in para No.6 of his chief affidavit. But, petitioner has not produced any documents to show that, he was doing Web designing job and earning Rs.15,000/- per month. As per his evidence, he was a student, studying in VI Semester BE. As per the discharge summary, he has undergone K-wiring of fractures.
28) In the evidence of PW.4, he has stated that, petitioner has difficulty to stand on right foot, squat on the floor, sit cross leg, walk on slope, climb stairs and walk on the plain surface. He has stated that, the range of movements of subtalar joint of right foot is decreased and there is wasting of muscles of dorsum of right foot. He has stated in his evidence that, the fracture of 2nd , 3rd , 4th and 5th metatarsal bones of right foot show malunion with lateral angulation deformity and fracture medical cuneiform bone SCCH-11 27 MVC 2504/2014 & 2505/2014 of right foot shows partial union with distortion of tarsal outline. As per his evidence, petitioner has sustained whole body disability at 9%. On perusal of the affidavit of PW.4, he has not assessed disability to particular limb and he has assessed permanent residual physical disability at 9% to the whole body. But, he has not stated that, how he reached the conclusion regarding physical permanent disability. In the cross-examination of PW.4, he has admitted that, the K-wire has been removed. He has also admitted that, the doctors who treated the petitioner have not mentioned date of removal of K-wire in the case sheet. He has admitted that, generally K-wire will be removed after taking X-ray and process of union of fracture and usually after 3-4 weeks, K-wire will be removed after confirmation about progress of union of fracture. Even he has also admitted that, as per Ex.P.6, the doctor have not noted any complications of implants. Even It is also admitted by PW.4 that, the treated doctors have not mentioned specific name of the bones which have been fractured. But, he has stated in his evidence that, fracture of 2nd , 3rd , 4th and 5th metatarsal bones of right foot show malunion with lateral angulation deformity. Even SCCH-11 28 MVC 2504/2014 & 2505/2014 in the wound certificate, there is no description about injuries caused to the 2nd, 3rd, 4th and 5th metatarsal bones. Even the doctors have not advised for follow-up further treatment to the petitioner. It is also admitted by PW.4 in his cross-examination that, in the OPD dated : 22.03.2014, it is mentioned that, dorsum wound right foot heeling well. The petitioner is aged about 20 years and generally wound heeling process in the youngsters will be better than elders and this fact is also admitted in the cross- examination of PW.4. Since K-wire has been removed and it will be only removed the union of the fracture or after confirmation of union of fracture, there will not be any disability. Even, the doctors have noted that, the dorsum wound right foot is heeling well. On perusal of the X-ray also, K-wire has been removed, which will be removed only after the heeling process or union of fracture. Even the treated doctors have not noted in the follow-up records of removal of implants, question of disability assessed by PW.3 does not arise at all. Even he has not given conclusion that, how he reached the conclusion about whole body disability at 9%. So, I hold that, the disability assessed by the PW.4 is wrong when SCCH-11 29 MVC 2504/2014 & 2505/2014 compared to the documentary evidence on record. So, I hold that, the evidence adduced by the PW.4 is not believable. So, I hold that, petitioner is not entitled for any future loss of income. Since K-wire has been removed, he need not undergo any surgery and doctors who treated the petitioner have also not suggested any future treatment. So, I hold that, petitioner is not entitled for compensation under the head of future loss of income and future medical expenses.
29) The Calculation table stands as follows:
1) Medical expenses Rs. 82,606/-
2) Food, nourishment & conveyance Rs. 8,000/-
3) Loss of amenities in life Rs. 15,000/-
4) Pain and agony Rs. 20,000/-
Total Rs. Rs. 1,25,606/-
30) The respondent No.1 is the owner of the offending vehicle and respondent No.2 is the insurer of the said vehicle. The respondent No.2 is liable to indemnify respondent No.1. So I hold that, in MVC No.2504/2014, petitioner is entitled for compensation SCCH-11 30 MVC 2504/2014 & 2505/2014 of Rs.1,13,078/- along with interest @ 6% p.a. from the date of petition from respondent No.2, till complete realization. In MVC No.2505/2014, petitioner is entitled for compensation of Rs.1,25,606/- along with interest @ 6% p.a. from the date of petition from respondent No.2, till complete realization. Accordingly, I answer this issue No.3 is partly affirmative in M.V.C.No.2505/2014.
31) ISSUE No.4: In view of answers to issues No.1 to 3 in both cases, I proceed to pass the following:
O R D E R The petitions filed in MVC No.2504/2014 and in MVC No.2505/2014 under Section 166 of M.V. Act are partly allowed with costs.
The petitioner in MVC 2504/2014 is entitled to compensation of Rs.1,13,078/- along with interest at the rate of 6% p.a. from the date of petition till complete realisation from respondent No.2.SCCH-11 31 MVC 2504/2014 & 2505/2014
The respondent No.2 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation by the respondent No.2, since the amount is meager, the entire amount shall be released to the petitioner through account payee crossed cheque, on proper identification and verification.
The petitioner in MVC 2505/2014 is entitled to compensation of Rs.1,25,606/- along with interest at the rate of 6% p.a. from the date of petition till complete realisation from respondent No.2.
The respondent No.2 is hereby directed to deposit the entire amount with accrued interest, within one month, from the date of this award.
In case of deposit of the awarded compensation by the respondent No.2, since the amount is meager, SCCH-11 32 MVC 2504/2014 & 2505/2014 the entire amount shall be released to the petitioner through account payee crossed cheque, on proper identification and verification.
Advocate fee is fixed at Rs.1,000/- in each case. Draw award accordingly.
(Original copy of Judgment shall be kept in MVC 2504/2014 and copy of the same shall be kept in MVC 2505/2014.) (Typed to my dictation by the Stenographer, corrected by me, then pronounced in Open court on this 14th day of October, 2015.) (GANAPATHI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM A N N E X U R E WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Prabhavathi PW.2 - J.C. Kushal PW.3 - Dr. S. Ramachandra PW.4 - Dr. S. Ramachandra SCCH-11 33 MVC 2504/2014 & 2505/2014 DOCUMENTS MARKED FOR PETITIONERS: Ex.P.1 - True copy of F.I.R Ex.P.2 - True copy of Complaint Ex.P.3 - True copy of Panchanama Ex.P.4 - True copy of Charge sheet Ex.P.5 - True copy of IMV report Ex.P.6 - True copy of Wound certificate Ex.P.7 - Discharge summary Ex.P.8 - 17 Medical bills Ex.P.9 -11 - 3 advance receipts Ex.P.12 - True copy of wound certificate Ex.P.13 - Discharge summary Ex.P.14 - 20 Medical bills Ex.P.15-18 - 4 Advance bills Ex.P.19 - Certificate issued by City Hospital Ex.P.20 - Certificate issued by Jeevika Hospital Ex.P.21 & 22 - 2 X-rays Ex.P.23 - 5 Medical bills Ex.P.24 - Medical record of City Hospital Ex.P.25 - Medical record of Jeevika Hospital Ex.P.26 - Discharge summary Ex.P.27 - 2 Medical prescriptions Ex.P.28-31 - 4 X-rays Ex.P.32 - Notarized copy of driving licence Ex.P.33 - OPD card SCCH-11 34 MVC 2504/2014 & 2505/2014 Ex.P.34 - One X-ray Ex.P.35 - OPD card Ex.P.36 - One x-ray WITNESSES EXAMINED FOR RESPONDENTS : RW.1 - Yellappa DOCUMENTS MARKED FOR RESPONDENTS : - NIL - I ADDL.SCJ. & MACT.