Bangalore District Court
Mr. Rakesh C vs Mr. B.V. Ashok on 19 October, 2015
BEFORE THE ACCIDENT CLAIMS TRIBUNAL AND CHIEF
JUDGE, COURT OF SMALL CAUSES AT BANGALORE
(SCCH-1)
DATED THIS THE 19th DAY OF OCTOBER 2015
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
MVC No.2875/2014
Petitioner: Mr. Rakesh C.,
S/o Chandra R.,
Aged about 21 years,
R/at 333/D, West Colony,
Rail Wheel Factory,
Yalahanka, Bangalore - 560 064.
(By Sri G.S. Mahalingappa, Advocate)
V/s.
Respondents: 1. Mr. B.V. Ashok,
S/o B.G. Venkatesh,
M/s Sri Venkateswara Motor Service,
No.9A, Race Course Road,
Madhava Nagar,
Bangalore - 01.
(Owner of the Bus bearing
Reg. No.KA-04-D-7700)
(By Sri K.S. Ananda, Advocate)
2. National Insurance Co. Ltd.,
Branch Office,
Opposite to RTC Bus Stand,
Hindupur - 515 201,
Andra Pradesh.
Rep. by its Regional Office,
National Insurance Co. Ltd.,
Regional Office,
Shubharam Complex,
M.G. Road, Bangalore - 560 001.
(Insurer of the Bus bearing
Reg. No.KA-04-D-7700)
2 (SSCH-1) MVC No.2875/2014
Policy No.551003/31/14/6300000398
Valid from 14-05-2014 to 13-05-2015.
(By Sri S.R. Murthy, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation of Rs.20 lakhs from the respondents No.1 and 2 with regard to the injuries sustained by him in the road traffic accident that occurred on 05- 06-2014 at about 12.00 p.m., on Nrupatunga Road, Yuvaneeka Gate, Bangalore.
2. Brief facts of the case are as under:-
It is the case of the Petitioner that, on 05-06-2014 at about 12.00 p.m., he was proceeding as pillion rider in a motor cycle bearing Reg. No.KA-02-HY-5995 and the rider of the motor cycle was riding the vehicle, in a slow and cautious manner, observing the traffic rules and regulations and when they have reached near Nrupatunga road, Yuvaneeka Gate, Bangalore, at that time a bus bearing Reg. No.KA-04-D-7700, being driving by its driver in a rash and negligent manner dashed the said motor cycle, as a result the petitioner fell down and sustained the grievous injuries.
3. Immediately after the accident, he was taken to Martha's Hospital, Bangalore, wherein he took the first and thereafter he was shifted to M.S. Ramaiah Hospital, wherein he was inpatient 3 (SSCH-1) MVC No.2875/2014 from 05-06-2014 to 14-06-2014. It is further he pleads that x-ray has confirmed the fracture of his right leg and he was subjected to surgery of CRIF with IM/IL nail of right tibial fracture and he has spent an amount of Rs.1,00,000/- towards medical expenses and Rs.50,000/- towards food, conveyance, nourishment and other incidental charges.
4. It is the case of the petitioner that, he was aged about 21 years and he was Final Year B.E. student at Govt. S.K.S.J.T. Institute, Bangalore and at the time of the accident, he got job offer letter from Technopark Advisors Pvt. Ltd., and he was offered a salary of Rs.22,000/- and he had to join on 09th June of 2014 and he was also conducting computer classes and earning Rs.15,000/- per month. It is also the contention of the Petitioner that, on account of the accidental injuries, he cannot walk for long distance, cannot sit and stand for long time. Doctor has advised him to take complete bed rest for a period of 6 months and due to the accidental injuries, he has suffered permanent disability.
5. It is the case of the petitioner that, first respondent is the owner of the bus and the second respondent is the insurer of the said vehicle and the accident occurred on account of rash and negligence on the part of the driver of the bus and hence both the respondents are jointly and severally liable to pay the 4 (SSCH-1) MVC No.2875/2014 compensation and police have also registered the case against the driver of the bus and filed the charge sheet for the offences punishable under Section 279 and 337 of IPC. Hence, the petitioner prays for awarding compensation of Rs.20 lakhs with interest from the Respondents.
6. In pursuance of this petition, this Tribunal issued notice of the petition to both the respondents and the first respondent has filed the objection statement. In the objection statement, he has contended that, petition itself is not maintainable and he has denied the averments made in the claim petition and further contended that the petitioner has to prove the nature of injuries and also amount spent towards medical expenses.
7. It is contended by the first respondent that he admits the ownership of the bus, but claims that, bus was insured with second respondent and the compensation claimed to the tune of Rs.20,00,000/- is exorbitant, excessive and fanciful without any basis.
8. The first respondent has contended that, petitioner has to prove the negligence on the part of the driver of the bus and also denied with regard to the nature of the injuries and shifting of the injured to M.S. Ramaiah Hospital and subjectiang the petitioner for surgery and he has also denied the income of the petitioner and also regarding the job offer made to the injured and also denied the 5 (SSCH-1) MVC No.2875/2014 disability. The first respondent has admitted the registering of case and filing of the charge sheet against and contended that, accident was occurred on account of negligence driving of the petitioner Mr. Rakesh and he drove the motor cycle in a rash and negligent manner and he suddenly applied the break and due to the sudden impact of the accident, the petitioner has fell down and sustained the injuries. It is contended that the vehicle is insured with the second respondent and if any liability is same indemnify by the second respondent and hence, the respondent No.1 has prayed this Tribunal to reject the claim petition.
9. The respondent No.2 being the insurance company in its objection statement has contended that, petition is not maintainable before the court. However, he has admitting that the respondent No.2 had issued a policy in respect of the vehicle bearing No.KA-04-D-7700 and it is contented that, its liability subject to terms and conditions of the policy and prove the driver of the bus was having valid and effective driving licence as on the date of the accident.
10. It is further contented that, first respondent is duty bound to comply under Section 134(C) of the M.V. Act and the same has not been done and police have also not complied the Section 158(6) of M.V. Act.
6 (SSCH-1) MVC No.2875/2014
11. It is further contended that, without prejudice that, the second respondent may be permitted to contest the matter under Section 170 of M.V. Act, if the owner fails to contest the case effectively.
12. It is contended that the first respondent knowing fully well that, driver was not holding valid and effective driving licence authorized the driver to drive the bus and the respondent No.1 has violated the terms and conditions of the policy and hence, insurance company is not liable to pay compensation. The second respondent also in the objection statement without prejudice to the contention raised above has contended that the petitioner has to prove the negligence on the part of the driver of the bus and also petitioner is called upon to prove and substantiate that, he was proceeding as pillion rider in the motor cycle and the same was driven by the rider of the motor cycle in a slow and cautious manner and further contended that the accident was occurred on account of rash and negligent driving on the part of the rider of the motor cycle.
13. The respondent also contended that the petitioner has to prove that he has sustained grievous injuries and he has spent an amount of Rs.1,00,000/- towards medical expenses and Rs.50,000/- towards other incidental expenses and he was earning Rs.15,000/- per month and also he has to prove the very fact that 7 (SSCH-1) MVC No.2875/2014 he was offered a job for an amount of Rs.22,000/- and hence, prayed this Court to dismiss the petition.
14. Based on the above pleadings of the parties, the following issues came to be framed by this Tribunal:-
1) Whether the petitioner proves that he sustained grievous injuries in a motor vehicle accident that occurred on 05-06-2014 at about 12.00 pm., on Nrupatunga Road, Yuvaneeka Gate, Bangalore, within the jurisdiction of Halasur Gate Traffic Police Station on account of rash and negligent driving of the Bus bearing registration No.KA-04-D-7700 by its driver?
2) Whether the respondent No.2 proves that the accident occurred on account of negligence act of petitioner himself?
3) Whether the petitioner is entitled for compensation?
If so, how much and from whom?
4) What order?
15. The Petitioner in order to prove his case has examined himself as PW.1 and got marked the documents as Ex.P1 to Ex.P16 and also examined the Doctor as PW.2 and through him, he got marked the documents as Ex.P.17 to 19. On the other hand, the Respondents have not adduced any evidence before the Court 8 (SSCH-1) MVC No.2875/2014 to prove their contention. However, filed written arguments on behalf of the respondent No.2.
16. Based on the pleadings and the evidence available on record, I record my findings on the above issues as under:-
1. Issue No.1 : In the Affirmative
2. Issue No.2 : In the Negative
3. Issue No.3 : Partly in the Affirmative
4. Issue No.4 : As per final order for the following:
REASONS
17. Issue No.1 & 2:- These two issues are interconnected to each other hence taken up together for discussion in order to avoid repetitions.
18. It is the case of the petitioner that he sustained grievous injuries in the motor vehicle accident that occurred on 05-06-2014 at about 12.00 p.m., he was proceeding in a motor cycle as pillion rider and when they have reached near Nrupathunga road, Yuvaneeka Gate, Bangalore, the driver of the bus bearing Reg. No.KA-04-D-7700 driving the same in a rash and negligent manner and dashed against the motor cycle, as a result, he was fell down and sustained the grievous injuries. The respondents have taken the defence that, the accident was occurred on account of negligent act of the rider of the motor cycle.
19. The petitioner, in order to prove the negligence on the part of the driver of the bus, has been examined himself as PW 1 9 (SSCH-1) MVC No.2875/2014 and in his affidavit filed in the form of examination in chief, reiterated the averments made out in the petition and also got marked the documents such as FIR, Mahazar, Spot Sketch, IMV Report, Charge Sheet as Ex.P.1 to P.5. The petitioner was subjected to cross-examination. Though, the respondent No.1 and 2 have taken the defence that, accident was occurred on account of negligent act on the part of the rider of the motor cycle, the respondents have not examined any of the witnesses before the Court nor produced any documentary evidence. The petitioner in his oral evidence in the form of affidavit, he reiterate that, the driver of the bus driving the bus came in a rash and negligent manner and dashed his motor cycle, as a result, he fell down and he was subjected to cross examination, in the cross examination he admits that the said road is busy road and he also admits that the accident was occurred in the middle of the road and there were vehicles on the left side and the car was in front of his motor cycle. He saw the face of the driver of the bus which was moving in a slow manner. It is suggested that, his vehicle rider tried to overtake the car which is going ahead of their vehicle and the said suggestion was denied. It is also suggested that the false complaint was given against the driver of the bus though the accident was taken place on the negligence on the part of the rider of the motor cycle and the said suggestion was also denied and admits that the 10 (SSCH-1) MVC No.2875/2014 rider of the motor cycle was having driving licence and he can produce the same before the court.
20. I have already pointed out that, the respondents have not lead any evidence and only remains evidence of PW1 and documentary evidence Ex.P1 to Ex.P5. Apart from oral evidence in complaint which is marked as Ex.P1, it shows that, accident was occurred on 05-06-2014 at about 12.00 p.m., and complaint was given at 14 hours within a span of 2 hours and allegation is made, the driver of the bus drove the same in a rash and negligent manner and dashed against the motor cycle and as a result, when the pillion rider fell down, the front tire of the bus passed over on his leg, as a result he sustained the injuries and this complaint was given by one Shivananda and he is the rider of the motor cycle and he says, he was driving the motor cycle along with the petitioner as a pillion and both of them are going to tuition at Jayanagar and bus driver who came from rare side in a rash and negligent manner hit his motor cycle from behind and as a result, the petitioner fell down and sustained the injuries. The petitioner has also relied upon the sketch which is marked as Ex.P3 and it discloses that both motor cycle and bus were proceeding in the same direction and the driver of the bus came towards left side from his direction and dashed against the motor cycle and in the cross examination of PW1 nothing is elicited from the mouth of 11 (SSCH-1) MVC No.2875/2014 PW1 except suggesting that the accident was occurred on account of negligent act of the rider of the motor cycle and the respondents have also not disputed the sketch which is marked as Ex.P3 and IMV Report which is marked as Ex.P4 discloses that the front portion of bumper of bus was damaged and hence, it is clear that front portion came in contact with the motor cycle and the motor cycle was also damaged and mere taking of defence is not enough that the accident was occurred on account of rash and negligent act on the part of the rider of the motor cycle and if really the motor cyclist was negligent, the respondents would have examined the driver of the bus who is the right person to speak regarding the negligence on the part of the motor cycle and no such efforts have been made by the respondents to examine the driver of the bus and the Police have also investigated in the matter and filed Charge Sheet as Ex.P.5, for having taken note of the evidence of the PW1 coupled with the documentary evidence of Ex.P1 complaint, Ex.P3 sketch and Ex.P4 IMV Report and Ex.P5 charge sheet and in the absence of any contra evidence as against the evidence of the PW1 and documentary evidence this Court has to accept the version of the PW1.
21. The respondent counsel has contended that, it is a fit case for to invoke the contributory negligence and the respondent counsel in support of their contention, has relied upon the 12 (SSCH-1) MVC No.2875/2014 judgment reported in ILR 2003 KAR 409 in between P. Varalakshmi Reddy and others vs. The Karnataka State Road Transport Corporation wherein it was held as under:-
MOTOR VEHICLES ACT, 1988 - CENTRAL ACT NO.59 of 1988 - SECTION 173(1) - Appeal by claimants against the Judgment and award dated 20th April, 1995 in M.V.C. No.268/1990 on the file of member, M.A.C.T., Mangalore, Dakshina Kannada partly allowing the claim petition for compensation.
The Tribunal on the basis of evidence on record held that this was the case of contributory negligence. Therefore it deducted 50% in the compensation awarded on the ground that the deceased was responsible to the extent of 50% by way of contributory negligence. The Appellants/Claimants contended that there is no direct evidence to justify negligence of the deceased and that the computation made by the Learned Judge was erroneous. According to them multiplier of 15 should have applied instead of multiplier of 12.
HELD: From the sketch, it is very clear to us that the cyclist was also in the wrong to a considerable extent and consequent to, we confirm the view of the finding of the Tribunal that the deceased was guilty to contributory negligence. Having regard to the manner in which the bus was being driven, we hold that the greater degree of negligence is attributable to the bus driver and we accordingly
13 (SSCH-1) MVC No.2875/2014 apportion the negligence in the properties of 60:40.... We have already held that the multiplier would have to be 15 in which case the aggregate would work out to Rs.5,45,290/- and 60%, this would work out to Rs.3,28,374/-. The Tribunal has awarded a sum of Rs.2,18,960/- under the Head and the corporation will accordingly have to deposit the enhanced compensation along with interest.... It is well settled that the Tribunal is not bound by the decision recorded in a criminal case as this is an independent proceedings.
22. The respondent counsel has also relied upon the judgment reported in ILR 2009 KAR 385 in between Smt. Nasreen Bzanu and others vs. The Divisional Manager and another wherein it was held as under:-
(B) MOTOR VEHICLES ACT, 1988 - Accident
- claim for compensation - Actionable negligence of a driver of the offending Vehicle - HELD, A claim petition for compensation based on actionable negligence, negligence of the driver of the offending vehicle need not be established beyond reasonable doubt like that of a penal action case i.e. criminal case. However, one cannot loose sight of Evidence Act and like a civil case, if it is purely based on facts, it has to be on the number of preponderance of probabilities. This preponderance of probability again is a relative work which depends upon the nature and quality of evidence 14 (SSCH-1) MVC No.2875/2014 let in by the parties. - ON FACTS, HELD, Having regard to the fact that the lorry and the motorcycle were proceeding near a bus stand where public including other vehicles were moving on the road, both the lorry driver and the motorcyclist ought to have exercised due diligence and care at least for the safety of themselves especially a motorcyclist who was trying to over take a heavy vehicle like that of a lorry especially in the night hours because the motorcyclist may not be able to visualize what are the vehicles that would be coming in the opposite direction ahead of the lorry - But for the clearance given by the lorry driver, the motorcyclist would not have ventured to overtake the truck. If only safe distance was maintained between the motorcycle and the truck, the motorcyclist and the pillion rider would not have met with untimely death. All these facts would go to show both the lorry driver and the motorcyclist were not careful enough to avoid the accident which they could have avoided if only they had adhered to minimum safety precautions.
However, under the facts and circumstances, it can be held that the driver of the lorry contributed negligence to an extent of 75% and the motorcyclist to an extent of 25% for the occurrence of the accident.
23. The respondent counsel has also relied upon the judgment reported in ILR 2005 ACJ 1323 in between National 15 (SSCH-1) MVC No.2875/2014 Insurance Co. Ltd., vs. Prembai Patel and others wherein it was held as under:-
Motor Vehicles Act, 1988, section 147 (2) - Motor insurance - Act policy - Extent of liability of insurance company - Death of driver when truck overturned - Death arose out of and in the course of employment - claimants preferred claim under Motor Vehicles Act - Vehicle was insured under 'Act liability only' policy - High court held that liability of insurance company is not limited to the extent provided under Workmen's Compensation Act and directed the insurance company to pay the awarded amount - Whether liability of insurance company is limited to the extent arising under Workmen's Compensation Act - Held: yes; owners to satisfy the remaining portion of the award.
24. The respondent counsel has also relied upon the judgment reported in 2013(1) Kar. L.J. 624 (DB) in between New India Assurance Company Limited, Bangalore vs. Manish Gupta and another wherein it was held as under:-
MOTOR VEHICLES ACT, 1988, Sections 166(1)(a) and 168 - Medical expenses of injured -
Claim for compensation in respect of - Where claimant held medical insurance policy and had got medical expenses incurred by him, reimbursed under said policy, his claim for reimbursement "of same expenses once again by way of compensation 16 (SSCH-1) MVC No.2875/2014 under the Motor Vehicles Act, held, is not maintainable - However, if amount of medical expenses reimbursed to claimant under medical insurance policy is found to be less than amount of compensation admissible to him under the M.V. Act under head "Medical expenses" he is entitled to differential amount as compensation.
25. The respondent counsel has also relied upon the judgment reported in ILR 2000 KAR 2009 in between Karnataka State Road Transport Corporation vs. George Ninum wherein it was held as under:-
MOTOR VEHICLES ACT, 1988 (CENTRAL ACT No.59 OF 1988) - SECTION 168 - Claim petition of a person claiming to be the owner of the car, for compensation for repair of the car was allowed rejecting the contention of the KSRTC that claimant's ownership of the car and Special Damages are not proved - HELD - In the absence of any materials to show that the claimant was the owner of the car, the claim petition itself was not maintainable - Mere producing of documents is not sufficient to prove Special Damages. Such documents have be proved. Mere production of document is not a proof of its contents.
26. The judgments quoted by the respondent counsel are not applicable to the case on hand, in view of the materials available before the Court i.e., Ex.P1 FIR, Ex.P3 Sketch and also IMV report 17 (SSCH-1) MVC No.2875/2014 which is marked as Ex.P4 clearly discloses the bus hit the motor cycle from rear side and cannot come to the conclusion of contributory negligence and in the absence of any contra evidence as to the evidence of PW-1, this Court has to accept the evidence of PW-1 and driver of the Bus also has not been examined before Court regarding contributory negligence and this Court would like to quote recent judgment of Apex Court reported in 2014 Kant MAC 330 (SC) Meera Devi & others Vs. Himachal Road Transportation & others wherein it was held as under:-
"....No cogent evidence to prove plea of contributory negligence - Doctrine of common law cannot be applied - Compensation awarded by Tribunal Just and proper...."
It is also important that, in the absence of any contra evidence and cogent evidence, the Court cannot comes to any conclusion of contributory negligence and hence, I accept the version of PW-1 and also documentary evidence. Hence, I answer Issue No.1 in the Affirmative and Issue No.2 in the Negative.
27. ISSUE No.3:
PAIN AND SUFFERINGS:
It is the case of the petitioner that, he is aged about 21 years and he was Final Year B.E. student at Govt. S.K.S.J.T. Institute, 18 (SSCH-1) MVC No.2875/2014 Bangalore and at the time of the accident, he got job offer letter from Technopak Advisors Pvt. Ltd., and he was offered a salary of Rs.22,000/- and he had to join on 09th June of 2014 and he was also conducting computer classes and earning Rs.15,000/- per month and he has sustained grievous injuries and in order to substantiate his case, he has produced Ex.P.6 Wound Certificate and on perusal of Ex.P6, it discloses that there is a injury of contused abrasion present over right leg 4cm x 3 cm and another injury displaced fracture of both bones of tibia and fibula of right leg distal 1/3rd and doctor has opined, the injury No.2 is grievous in nature. The petitioner also relied upon the discharge summary which is marked as Ex.P8 and it discloses that, he was inpatient from 05-06-2014 to 14-06-2014 for a period of 10 days and he was subjected to CRIF with IM/IL nail of right tibial fracture and the surgery was conducted on the next day. The petitioner also relied upon the Ex.P9 offer letter given by Technopak Advisors Pvt. Ltd and service contract also produced as Ex.P10 and this letter was issued along with the contract letter on 14-05-2014. The petitioner also produced the driving licence as Ex.P11 and medical bills as Ex.P12 to the tune of Rs.49,903/- and prescriptions as Ex.P13 and x-ray as Ex.P14. He was subjected to cross examination and recent x-ray also produced as Ex.P19 though doctor. In the cross examination of PW1, it is elicited that, he has not produced any 19 (SSCH-1) MVC No.2875/2014 document to show that, he was earning Rs.15,000/- by giving tuition and also he admits that, he completed final year BE and it is suggested that, he has not taking any tuition and the said suggestion was denied and it is further contended that, Ex.P9 and Ex.P10 are created for the purpose of this case and same was also denied and he says now he is not doing any work and he admits that, Ex.P12 amount is reimbursed by Railway Wheel Factory. It is contended that, all the bills are reimbursed and the same was denied. It is suggested that, medical bills are created for the purpose of this case and the same is denied and it is suggested that, he has not sustained any permanent disability and the same is denied.
28. The Petitioner has relied upon the evidence of the Doctor. He says that Petitioner has sustained injury to his right leg and he was diagnosed to have fracture of both bones of right leg. The doctor has assessed the disability considering the stability component and also based on the clinical method of evaluation and he assessed the disability of 31.6% for his right lower limb. In the cross examination he admits to unite the fracture requires 3-4 months. Further, he admits that fractures are united and the patient was having railway insurance and he admits that, 1/3rd has to be taken while assessing disability to whole body. It is 20 (SSCH-1) MVC No.2875/2014 suggested that, in view of uniting of the fractures the question of disability does not arise and the said suggestion was denied and it also come in the evidence that the petitioner is a student and it is suggested that, because of young age of the petitioner, there is no any difficulties to him and the said suggestion was denied.
29. The respondent counsel in his written arguments, he vehemently contended that the doctor who has examined before the court to prove his injuries sustained in the alleged accident and the PW2 has admitted in his cross examination that, fracture is united. Under this circumstances petitioner has not suffered any disability and disability assessed by the doctor PW2 is on higher side. He also contended that petitioner has not produced any income proof and he has produced the job offer letter and service contract letter as Ex.P9 and Ex.P10 those documents are created for the purpose of getting more compensation and the petitioner has not examined the author of job offer letter and service contract letter and hence, the same cannot be taken into consideration. It is also contention of the respondent counsel that the medical bills which are produced as Ex.P12, it is elicited from the mouth of PW1, in his cross examination that, he has reimbursed the medical bills a sum of Rs.39,642/- from the Railway Wheel Factory and the petitioner has produced the other 29 medical bills for a sum of 21 (SSCH-1) MVC No.2875/2014 Rs.10,300/- and these bills are created and same cannot be considered.
30. On the other hand the petitioner counsel in his arguments, he vehemently contended that, petitioner was B.E. final year student and he was earning Rs.15,000/- from tuition and he has suffered both bone fractures and doctor has opined disability to the tune of 31.6% of right lower limb and hence, the court has to take note of his earnings as well as though he was a final year student. In keeping the contentions urged by both the petitioner counsel and the respondent counsel, this court has to proceed the materials available before the court both oral and documentary.
31. Now let me appreciate both oral and documentary evidence available before the court. On perusal of Wound certificate which is marked as Ex.P6, it discloses that he has suffered fracture of both bones of right leg and Doctor has opined as grievous injury. He was admitted in the hospital from 05-06- 2014 and he was discharged on 14-06-2014. The Discharge Summary, which is marked as Ex.P.8 clearly discloses that, he was admitted on 05-06-2014 and discharged on 14-06.2014 and he was subjected to surgery on the next day of his admission and x- ray which are produced before the court old and new and new x- 22 (SSCH-1) MVC No.2875/2014 ray which is marked as Ex.P19 it confirms that, fracture is united and old x-rays which are marked as Ex.P14 discloses that, the petitioner has suffered the fracture of both bones. For having taken note of the injuries of the fracture of both bones, I am of the opinion that, petitioner is entitled for compensation of Rs.40,000/- . Hence, I award Rs.40,000/- under the Head Pain and Sufferings.
32. MEDICAL EXPENSES:
The petitioner has produced medical bills Ex.P12 and also got marked the bills. Ex.P12 discloses an amount of Rs.39,642/- by the inpatient bill and medical bills also produced, in all he claimed the compensation of Rs.49,903/- and also produced prescriptions and Though, PW1 admitted in the cross examination that Ex.P12 amount was reimbursed and he ahs produced the other bills amounting to Rs.10,261/- and on perusal of Ex.P12 it discloses an amount of Rs.6,418.48 Paisa towards pharmacy is included in the final bills which are produced are also dated from 05-06-2014 to 14-06-2014 and the petitioner has not produced any detail bill to the tune of Rs.6,418.48 Paisa as collected in the final bill and hence, the petitioner is entitled for remaining amount of Rs.3,843/- spent subsequent to the discharge and the same is rounded off to Rs.4,000/-. Hence I award Rs.4,000/- under the head medical expenses.
23 (SSCH-1) MVC No.2875/2014
33. LOSS OF FUTURE EARNINGS ON ACCOUNT OF DISABILITY:
The petitioner in his evidence, he says that he was a final year BE student and further he contended that, he was taking tuitions and earning Rs.15,000/- per month and in the cross examination, he categorically admits that, he has not produced any documentary proof about his income and rightly pointed about the respondent counsel that, Ex.P9 and Ex.P10 job offer letter and service contract letter are not proved by examining the author of the document and though it is relied upon by the PW1 and when the same was disputed in the cross examination that, the same are created, the petitioner ought to have examined the author of the document and the same cannot be accepted and for having taken note of the evidence of the doctor PW2, he assessed the disability of 31.6% to the right lower limb and he also categorically admits in the cross examination that, it has to be taken 1/3rd to whole body and for having taken note of the disability to limb to the tune of 31.6% and whole body as 1/3rd and it is not a higher side that, both bones are fracture and 10% disability could not just and consider to take into consideration and the Apex court has held in the Mallikarjuna's case that fixed compensation is awarded, in the case of disability caused to the children due 24 (SSCH-1) MVC No.2875/2014 to the accidental injuries. As per the said decision, that if the percentage of disability is less than 10%, an amount of Rs.1,00,000/-has to be awarded and in the case on hand the petitioner is not a minor and admittedly he is a student of final year BE and doctor PW2 also admits that he was a student and no material regarding the employment and the document which are produced are not proved and for having taken note of the Mallikarjuna's case, I am of the opinion that, in a case of minor also the Apex Court has given compensation of Rs.1,00,000/- on the head of disability and in the case on hand, the petitioner is a final year BE student and he has to suffer his rest of life with disability. Though, the fractures are united, the disability is permanent and it is a fit case to award an amount of Rs.1,25,000/- under the head of disability.
34. TRAVELING, CONVEYANCE, FOOD AND NOURISHMENT AND OTHER INCIDENTAL EXPENSES:
During the treatment period the Petitioner must have spent amount towards traveling, conveyance, food and nourishment and other incidental expenses. The petitioner was an inpatient at M.S. Ramaiah Hospital for a period of 10 days from 05-06-2014 to 14- 06-2014 and he was subjected the surgery. Hence, I award 25 (SSCH-1) MVC No.2875/2014 Rs.10,000/- under the head traveling expenses, conveyance charges, attendant charges and other incidental expenses.
35. LOSS OF AMENITIES IN LIFE:
The petitioner is aged about 21 years and he has suffered the disability and this court has fixed 10% disability. On account of his age being 21 years, I am of the opinion that, the Petitioner is entitled for an amount of Rs.20,000/- on the head loss of amenities in life since he has to lead his rest of life with the disability of 10%.
36. Future medical expenses:
The Petitioner was subjected to surgery and implants in situ and the doctor who has examined the PW2 in his evidence he says that, petitioner is underwent closed reduction and internal fixation with intramedullary interlocking nail on 06-06-2014 and it requires one more surgery, since x-ray of right leg shows union of the fracture with implant in situ and cost of removal of implant would be Rs.20,000/-. In the cross examination of it is suggested that future medical expenses of Rs.20,000/- is not required for removal of the implants and except this suggestion nothing is elicited from the mouth of PW2 and there is no dispute with regard to the fact that, he was subjected to surgery and implants are in situ and it is not the case of the respondent that, implants are not 26 (SSCH-1) MVC No.2875/2014 in suit and the cost assessed by the doctor PW2 is also not exorbitant with regard to the cost of future surgery for removal of implants. Hence I award an amount of Rs.20,000/- towards future surgery for removal of implants in situ.
37. The details of compensation, I propose to award are as under:
Sl.
Head of Compensation Amount
No.
1. Pain and Sufferings Rs. 40,000.00
2. Loss of future earnings due to Rs. 1,25,000.00
disability
3. Medical expenses Rs. 4,000.00
4. Traveling, conveyance, food and Rs. 10,000.00
nourishment, attendant charges
and other incidental expenses.
5. Loss of amenities in life Rs. 20,000.00
6. Future medical expenses Rs. 20,000.00
Total Rs. 2,19,00.00
In all the Petitioner is entitled for compensation of Rs.2,19,000/-
38. INTEREST:
Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to interest at the rate of 27 (SSCH-1) MVC No.2875/2014 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the petitioner is entitled to interest at the rate of 9% p.a.
39. LIABILITY:
As regards to the liability to be fixed on the Respondents, admittedly the Respondent No.2 is the insurer and Respondent No.1 is the owner of the vehicle bearing Reg. No.KA-04-D-7700. Hence, both Respondents are jointly and severally liable to pay compensation to the Petitioner. However, primary liability is fixed on the Respondent No.2- Insurance Company to satisfy the award. Hence, this Issue is answered accordingly. 28 (SSCH-1) MVC No.2875/2014
40. Issue No.4: In the result, I proceed to pass the following:
ORDER The petition is partly allowed with cost against Respondents.
The Petitioner is entitled for total compensation of Rs.2,19,000/-.
Petitioner is entitled for interest at the rate of 9% per annum from the date of petition till realization.
The Respondents No.1 and 2 are jointly and severally liable to pay the compensation along with interest to the Petitioner. However, the Respondent No.2 being the insurer is liable to pay the compensation amount to the Petitioner within 2 months from the date of this order.
Compensation of Rs.20,000/- awarded under the head future medical expenses, shall not carry any interest.
Out of the compensation amount so awarded, 50% with proportionate interest is ordered to be released in favour of the Petitioner and the balance amount 50% shall be invested in fixed deposit for a period of 5 years in the name of the 29 (SSCH-1) MVC No.2875/2014 Petitioner in any of the nationalized bank of the choice of the Petitioner. Interest on F.D. is payable on maturity.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer, transcribed by him, corrected, signed and then pronounced by me in the open court dated this the 19th day of October 2015) (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes ,Bangalore.
********** ANNEXURES List of witnesses examined on behalf of the petitioner PW1 Rakesh C. PW2 Dr. Ashok Kumar P. List of witnesses examined on behalf of the Respondents None List of documents marked on behalf of the petitioner :
Ex.P1 Copy of FIR Ex.P2 Copy of Mahazar Ex.P3 Copy of Sketch Ex.P4 Copy of IMV report Ex.P5 Copy of Charge Sheet Ex.P6 & Wound certificates Ex.P7 30 (SSCH-1) MVC No.2875/2014 Ex.P8 Discharge summary Ex.P9 Job offer letter Ex.P10 Service contract letter Ex.P11 Notarized copy of DL Ex.P12 Medical bills (30 in nos.) for Rs.49,903/- Ex.P13 2 Prescriptions Ex.P14 2 X-rays Ex.P15 Notarized copy of College ID Card Ex.P16 2 Photos with CD Ex.P17 & 2 Case Sheets Ex.P18 Ex.P19 2 X-rays
List of documents marked on behalf of the Respondents:
Nil (H.P.SANDESH) Member, Prl. M.A.C.T., Court of Small Causes, Bangalore.