Bangalore District Court
Vijay vs The Managing Director on 31 March, 2015
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
COURT OF SMALL CAUSES AT BENGALURU
(SCCH:15)
DATED: THIS THE 31st DAY OF MARCH, 2015
PRESENT : Smt.K.Katyayini, B.Com., LL.B.,
XIII Addl.Small Cause Judge
& Member, MACT, Bengaluru.
MVC No.5466/2012
Petitioner/s Vijay,
S/o S.Raju,
Aged about 29 years,
Residing at No.1690,
4th A Cross, 9th Main,
HAL III Stage,
Bengaluru - 560 075.
(By Pleader -
Sri.Mohd.Sheriff.)
V/s
Respondent/s The Managing Director,
APSRTC, Mushirabad,
Hyderabad,
Andhra Pradesh.
(Owner of bus bearing
registration No.AP-20 Z-0059.)
(By Pleader - Sri.D.V.Vijay
Kumar.)
JUDGMENT
(SCCH-15) 2 MVC.5466/2012 Petitioner has filed the present petition under Section 166 of MV Act seeking grant of compensation on account of injuries he has sustained in RTA.
2. Initially this petition was assigned to the Hon'ble SCCH-10 and subsequently as per the notification No.ADMI/419/2014 dated 06.05.2014, it is reassigned to this Tribunal for disposal in accordance with law.
3. The brief case of petitioner is that on 22.12.2011 at about 4 p.m., he was proceeding on his scooter bearing registration No.CKW-4384 on Old Madras Road, NGEF, opposite to Metro Station, Byappanahalli, Bengaluru. At that time a bus bearing registration No.AP-29 Z-0059 came with high speed in a rash and negligent manner and dashed against his scooter.
b) Because of which he fell down and sustained grievous injuries. Accident took place solely due to negligent driving of APSRTC bus driver. Therefore, respondent being the RC owner and internal insurer of the bus is liable to pay the compensation. Hence, prayed to allow the petition as sought for. (SCCH-15) 3 MVC.5466/2012
4. In response to due service of notice, respondent put its appearance through its counsel and filed its statement of objections denying the petition averments. It has specifically contended that petitioner who was riding scooter without observing vehicular documents, all of a sudden took right turn and dashed against the front wheel backside of the body of the bus. Therefore, bus did not dash against the scooter. On the other hand, it is petitioner who came and dashed against the bus.
b) Hence, accident took place because of negligent riding of petitioner himself. Since the RC owner and insurer of Scooter are not made as parties to this proceeding, this petition is bad for non-joinder of necessary parties. Therefore, prayed to dismiss the petition against it with costs.
5. On the above said pleadings of the parties, my learned predecessor in office i.e. the then presiding officer of SCCH-10 was pleased to frame the following issues.
(SCCH-15) 4 MVC.5466/2012
1. Whether petitioner proves that he has sustained injuries in the motor vehicle accident that occurred on 22.12.2011 at about 4:00 p.m. on Madras Road, opposite to Metro Station, Byappanahalli, Bengaluru, within the jurisdiction of Indiranagar traffic police station on account of rash and negligent driving of APSRTC bus bearing registration No.AP-29 Z-0059 by its driver as alleged in the petition?
2. Whether petitioner is entitled for compensation? If so, what amount and from whom?
3. What order or award?
6. To prove the above said issues and to substantiate their respective contentions, petitioner has entered into witness box as PW-1. He has got examined the doctor who has assessed the disability as PW-2; the doctor who has treated and assessed the disability as PW-3; the administrative officer of legal department, Division-I, LIC, Bengaluru as PW-4 and Assistant Manager of NIC, Bengaluru as PW-5. Totally got exhibited 70 documents and closed his side.
b) Per contra, the driver of bus is examined as RW- 1 and no document is exhibited on behalf of respondent (SCCH-15) 5 MVC.5466/2012 and it has closed his side. Heard arguments of both the sides on merits of the case. In addition, counsel for petitioner has also filed written arguments with xerox copies of the decision reported in 2014 ACJ 1388 and the judgment of Supreme Court dated 31.10.2014 passed in Civil Appeal No.9972/2014. This Tribunal has carefully gone through the reported decisions and the judgment and perused the record.
7. Now the findings of this Tribunal on the above said issues are answered in the;
1. Issue No.1: Partly affirmative.
2. Issue No.2: Petitioner is entitled for total compensation amount of Rs.23,12,000/- and excluding the award of Rs.3,00,000/-
towards future medical expenses, entitled for interest at 8% p.a. on the remaining compensation amount of Rs.20,12,000/- from the date petition till the realization in its entirety from the respondent.
3. Issue No.3: As per final order for the following reasons.
REASONS (SCCH-15) 6 MVC.5466/2012
8. ISSUE No.1:- If the above observed pleadings of the parties are taken into consideration, for the adjudication of this issue, the point that remained for the due consideration of this Tribunal is the rash and negligent act alone.
9. To prove their respective case, as observed above, petitioner has entered into witness box as PW-1 and filed his affidavit evidence wherein he has reiterated the petition averments and specifically deposed that accident took place because of the negligent driving of APSRTC bus driver.
10. Per contra, the bus driver himself has entered into witness box as RW-1 wherein he has reiterated the statement of objections averments of the respondent to the effect that accident took place because of negligent riding of scooter by petitioner.
11. During their cross-examination both petitioner and bus driver denied the suggestions of other side putting their respective case/defence. So, prima facie, the oral evidence let in by both parties in support of (SCCH-15) 7 MVC.5466/2012 their case now remained nothing but an oath against oath.
12. However, it is in the cross-examination of PW-1 that Old Madras Road is a busy road. Prior to accident he saw the bus at a distance of 50 feet which was coming from the opposite direction. There is signal at the accident spot.
13. He has also admitted the suggestion that bus was coming from the same direction and in the same direction from the opposite side in the same position of the road which was seen before accident and at the time of accident as well. He has also admitted the suggestion that the picture and position in the spot sketch are true and correct. He has also deposed that in the spot sketch, signal point at the accident spot is not shown.
14. He has also deposed that he has not stated either in his petition or in his affidavit evidence with regard to signal light at the accident spot and at the time of accident. He has also not stated anything with (SCCH-15) 8 MVC.5466/2012 regard to the bus driver violating the signal or jumping the signal and dashing his scooty.
15. He has admitted that the complainant is his brother Vinay Kumar who did not see the accident. Front side of his scooter was damaged and the right side body of the bus i.e. behind front wheel is damaged. But he has denied the suggestion that accident took place because of his negligence.
16. On the other hand, it is in the cross- examination of RW-1 that he has appeared before the jurisdiction Magistrate. But he has not received any document from the Magistrate Court. He did not file any PCR.
17. As observed above, respondent has not produced any document in support of his defence. On the other hand, petitioner has produced police papers i.e., true copy of FIR with complaint, spot sketch, spot mahazar IMV report and charge sheet respectively at Ex.P-1 and 4 to 6.
18. All the police papers categorically reveal that the jurisdictional police have initially registered criminal (SCCH-15) 9 MVC.5466/2012 case against the bus driver for the offences punishable under Sections 279 and 338 of IPC. There is no dispute between the parties with regard to the jurisdictional police charge sheeting the bus driver for the present accident.
19. Respondent has also not raised any defence such as the bus driver has challenged the charge sheet and they have made any representation to the higher authority that the charge sheet is falsely filed.
20. Moreover, there is presumption with regard to the police papers that they are prepared by investigating officers while discharging their official duties in investigation of a crime. Of course, the said presumption is rebuttal one.
21. But 1st respondent has even contended that the accident took place because of negligent act of petitioner in all of a sudden taking 'U' turn of his scooter, there is no specific cross-examination with regard to the police papers which are in consonance with the case of petitioner.
(SCCH-15) 10 MVC.5466/2012
22. However, if the spot sketch and spot mahazar at Ex.P-3 and 4 are taken into consideration, admittedly the road at accident spot is two way having road median. Admittedly APSRTC bus was coming from the opposite direction and it is in the evidence of petitioner that he saw the bus prior to the accident.
23. Petitioner has also admitted the suggestion that bus was coming on the same direction in the same force as he saw at the first instance and at the time of accident. So, it appears that petitioner has even observed bus coming from the opposite direction, tried to take 'U' turn.
24. He has also admitted that he has not stated that the bus driver came violating or jumping the signal and dashed against him. So, even the bus driver who was proceeding on the main road is required to observe the vehicular movements entering from the cross-road, the act petitioner shows that he has also contributed some negligence in occurrence of the accident. Therefore, considering the facts and circumstances of the case, it is thought just and proper to levy the (SCCH-15) 11 MVC.5466/2012 contributory negligence at 20% on the part of petitioner.
25. So far the accidental injuries suffered by petitioner, there is no dispute. Moreover, to establish that petitioner with his oral evidence has also let in evidence of doctor who have treated and assessed the disability. He has also produced medical records such as discharge summaries, medical records and hospital bills, prescriptions.
26. During evidence of PWs-2 and 3, got produced medical records such as outpatient record and x-ray films etc. All the medical records are in support of the case of petitioner with regard to his suffering injuries in the accident.
27. Moreover, if the cross-examination of respondent to the petitioner and the doctors are taken into consideration, even it has raised objections with regard to the nature of injuries, nature of treatment as well as quantum of disability, quantum of medical expenditure, it has not at all denied the fact of petitioner suffering injuries in the accident. (SCCH-15) 12 MVC.5466/2012
28. Therefore, petitioner has proved that he has suffered injuries in the accident. However, in lieu of levying contributory negligence on the part of petitioner at 20%, this issue is answered partly in affirmative.
29. ISSUE No.2:- In view of answering issue No.1 in partly affirmative, petitioner is entitled for compensation. Now, in respect of quantum. It is the case of petitioner that he was aged 29 years; working as insurance consultant, had income of Rs.30,000/- per month.
30. To establish his age, petitioner has produced the notarized copy of his pan card at Ex.P-33 wherein his date of birth is shown as 25.12.1981. The date of accident is 22.12.2012. So, as per Ex.P-33, he was aged 31 years.
31. It is in the police papers and medical records that he was aged 29 years. There is no cross- examination by other side with regard to age of petitioner in those documents. Therefore, considering the date of birth mentioned in Ex.P-33, the age of (SCCH-15) 13 MVC.5466/2012 petitioner is taken as 31 years for which the proper multiplier applicable is 16.
32. So far as his avocation as LIC consultant, if the evidence let in by both the parties are taken note off, there is no dispute. To prove the quantum of income, with his oral evidence as observed above, he has also got adduced the evidence of LIC and NIC (National Insurance Company) officers respectively as PWs-4 and
5.
33. PWs-4 and 5 have produced and identified the documents given by their office during their evidence. If the sum and substance of their evidence is taken into consideration, it is apparent on the face of record that petitioner was LIC and NIC agent; had commission and even now he is receiving commission.
34. So far as quantum is concerned, petitioner has produced the documents issued by LIC, NIC and IT returns as well. It is in the chief evidence of petitioner that he is a graduate of Bachelor in Computer Application passed during the year 2006. To prove that he has produced Ex.P-16, the notarized copy of the (SCCH-15) 14 MVC.5466/2012 certificate issued in that regard by the Bengaluru University. The contents therein are in support of the oral evidence of petitioner.
35. It is also in his affidavit evidence that he has worked as Composite agent representing LIC and NIC for selling Life Insurance policies with effect from 26.03.2004. He was a license holder since 2004 which is renewed from time to time during 2007 and 2010.
36. He has also deposed that during 2006 he was trained and certified for selling ULIP policies. During 2008 he was recognized and selected in the professional team called GENNEXT agent from marketing department, LIC of India. He was also sponsored for Wealth Management training by LIC in the year 2008 at Zonal Office, LIC of India, Hyderabad, certifying as Wealth Manager.
37. He has also deposed that during 2008, he has completed CIS/Certified Insurance Salesman course from Insurance Institute of India. During 2011, he was empanelled as Sales Representative for LICCSL. Ex.P-17 to 32 are respectively the notarized copies of the (SCCH-15) 15 MVC.5466/2012 attendance certificate cum hall ticket of training dated 18.03.2004 issued by LIC; Letter with regard to Allotment of Agency Code written by LIC; Licenses issued Insurance Regulatory and Development Authority, New Delhi; Employee IDs issued by NIC; Renewed Licenses issued Insurance Regulatory and Development Authority; Renewed Employee IDs issued by NIC; Employee IDs issued by LIC; Training Certificate issued by LIC; GENNEXT Agent ID; Certificate of Participation in Training issued by LIC; Letter of Nomination as Wealth Manager of LIC and Letter of Empanelment. The contents of the above documents at Ex.P-17 to 32 are in corroboration with the oral evidence of petitioner observed above and the other side has not disputed the qualifications of petitioner.
38. It is also in his affidavit evidence that for the assessment year 2009-10, he had income from LIC Rs.1,21,778/- and from NIC Rs.1,01,283/- totally Rs.2,23,061/- for which he has paid tax of Rs.15,452/-; for 2010-2011 he had income from the LIC at Rs.1,03,004 and from NIC Rs.1,16,219/- totally (SCCH-15) 16 MVC.5466/2012 Rs.2,19,223/- for which he has paid tax of Rs.22,419/- and for the assessment year 2011-2012 he had income from LIC Rs.1,59,841 from NIC Rs.1,63,590/- totally Rs.3,23,431/- for which he has paid tax of Rs.16,359/-.
39. During his cross-examination he has admitted the suggestion that he has furnished income tax returns for the period from 2009-2011, 2010-2011 and 2011-2012 and he has not produced income tax returns for the period from 2012-2013 as well as 2013-2014. At this stage he voluntarily deposed that he has not submitted the income tax returns for the year 2012- 2013 since he had no income and therefore, he could not file any tax returns.
40. He has also admitted the suggestion that as per Ex.P-50, Rs.55,707/- is the income he has received from NIC and as per Ex.P-51, Rs.17,613/-; as per Ex.P- 52, it is Rs.14,814/-. He has also admitted the suggestion that he has received a sum of Rs.63,321/- as commission for the period from 01.04.2012 to 31.03.2013.
(SCCH-15) 17 MVC.5466/2012
41. At this stage he has denied the suggestion that till date he has received commission amount from LIC and voluntarily deposed that he has received commission of some policies and not received commission from some other policies. He has admitted the suggestion that he has not produced TDS forms from 01.04.2013.
42. PW-4/the Assistant Administrative Officer of Legal Department, Division-I, LIC Bengaluru has appeared before and produced the true copies of agent status and consolidated financial year earnings of agent pertain to petitioner at Ex.P-66 and 67. He has identified the documents at Ex.P-35, 43 to 45 and told that those documents are issued by their office/LIC.
43. During his cross-examination he has deposed that he is not the signatory to the documents at Ex.P- 35, 43, 45 and 65 to 69. He has also deposed that as per Ex.P-66, petitioner was appointed as LIC agent from 26.03.2004 and was terminated from 25.03.2013. He has also admitted the suggestion that the licence expires on 25.03.2016.
(SCCH-15) 18 MVC.5466/2012
44. He has deposed that petitioner has procured business of 30 and 15 live policies respectively as per Ex.P-67. The financial year of LIC is from 1 st April to 30th March of every year. He has admitted the suggestion that there is no reason stated in the termination letter at Ex.P-69. But as per Ex.P-66, the reason for termination is inadequate business.
45. PW-5 who is Assistant Manager, NIC, Bengaluru has filed his affidavit evidence wherein he has stated that petitioner was their insurance agent for selling general insurance policies and he was issued licence by IRDA with effect from 26.03.2004. During 2009-2010, petitioner has obtained income from their office Rs.1,01,283/-; during 2010-2011 he has obtained income of Rs.1,16,219/- and during 2011-2012 he has obtained income of Rs.1,63,590/- and TDS at 10% is deducted out of the said income.
46. He has referred Ex.P-10, 19, 20, 21, 25, 36, 40, 48, 50 and 52 in his affidavit evidence. He has identified those documents. In his cross-examination he has stated that petitioner's agency is renewed for the (SCCH-15) 19 MVC.5466/2012 period of 2010-2013. After 2013, his licence is not renewed. He has also stated that they have not terminated the agency.
47. So, if the entire evidence let in by petitioner is taken into consideration, for the year 2011-2012, declared income of petitioner was Rs.3,23,431/- for which he has paid tax of Rs.16,359/-. So, as on the date of accident i.e. on 22.12.2011, the monthly income of petitioner comes to Rs,26,953/-.
48. Of course, it is got admitted that petitioner has received a sum of Rs.63,321/- as commission for the period from 01.04.2012 to 31.03.2013. But if the documents produced by petitioner particularly the tax returns are taken note of there is increase of income of petitioner when compared to the declared income for the assessment year 2009-10 to 2011-12.
49. So, the commission received by petitioner for the year 2012-13 i.e. Rs.63,321/- is very less which reveals the loss of income of petitioner. Moreover, as per the evidence of PWs-4 and 5, the agency of petitioner is terminated because of less business. (SCCH-15) 20 MVC.5466/2012
50. Of course, it is in the evidence of petitioner that he is receiving commission from some of the policies. However, this Tribunal can take judicial notice that the said commission may be there till the expiry of those policies or till the policy holders keep the policies in force. But that is uncertain. In view of the above observations, there is nothing which prevents to take the average income of petitioner as on the date of accident at Rs.27,000/- per month.
51. It is the case of petitioner that in the accident he has suffered closed Muller's C2 S/C fracture right femur; schatzkers type VI fracture right tibial condyle popliteal artery; Muller's C1 S/C fracture left femur with schatzker tibial condyle fracture with popliteal artery injury; gangrene or left lateral four toes; undisplaced calcaneum fracture and undisplaced right patella fracture.
52. It is also his case that he took treatment by the doctors at Hosmat hospital, Bengaluru. Still he is under treatment and has spent more than Rs.10,00,000/- towards medical expenses and (SCCH-15) 21 MVC.5466/2012 ambulance services. He became permanently disabled because of accidental injuries.
53. Petitioner has reiterated the above observed petition averments in his affidavit evidence. In addition, he has also deposed that he has admitted to the Hosmat hospital on 22.12.2011 and underwent surgery of left minimal internal fixation with knee spanning fixation with external fixator with popliteal; artery thrombectomy and dilatation right side knee spanning external fixator with popliteal artery dilatation on 23.12.2011.
54. He has also undergone wound debridement with SSG bilateral popliteal wounds on 26.12.2011; amputation of 2nd to 4th toe and 1st distal phalanx of left foot with readjustment of external fixator of right side on 30.12.2011; reduction and ilizarov external fixator application right femur and right tibia with wound debridement of left foot on 06.01.2012.
55. He has also stated that he underwent ORIF with concellous screw left lateral condyle with wound debridement of left foot on 09.01.2012 and wound (SCCH-15) 22 MVC.5466/2012 debridement left food with SSG left foot and right and left popliteal regions on 13.01.2012 and was discharged on 16.01.2012. Thus he was inpatient in the hospital at the first admission for 26 days.
56. It is also in his affidavit evidence that he has admitted to the said hospital for 2 nd time on 03.05.2012 and was discharged on 05.05.2012. Thus he was inpatient in the hospital for 3 days. In the meanwhile partial removal of iliarov frame right tibia was done on 04.05.2012.
57. He has also deposed that he once again admitted to the Hosmat hospital for 3 rd time on 19.04.2012 and was discharged on 22.06.2012 and thereby in the hospital for 4 days. In between on 20.06.2012, he funder went surgery in the form of ORIF with IMIL nail right femur with bone grafting.
58. It is also in his affidavit evidence that 4 th time he has admitted to the said hospital on 01.02.2013 and was discharged on 15.02.2013 that thus he was inpatient in the hospital for 15 days. In between on 02.02.2013, he was treated for right sided arthroscopic (SCCH-15) 23 MVC.5466/2012 and mini open arthrolysis with quadriceps; V-Y plasty of right side with open arthrolysis of left knee with left hammer great toe correction.
59. In his cross-examination, his chief evidence is denied by way of suggestions which are in turn denied by him. However, he has admitted that wounds are healed; as per Ex.P-9, the discharge summary of Hosmat hospital, fractures are united.
60. PW-2, the doctor who has assessed the disability has filed his affidavit evidence in support of the affidavit evidence of petitioner observed above with regard to the nature of injuries and treatment as well as the inpatient period. In addition, he has stated that fractures are united with severe arthritic changes in both knees; 4 toes of the left side have been amputed with terminal skin grafts.
61. He has also stated in his affidavit evidence that on 06.04.2013 and 22.01.2014, he has clinically examined the petitioner for assessment of disability and took x-rays. On clinical examination, radiological examination and on the complaints of petitioner it is (SCCH-15) 24 MVC.5466/2012 found that petitioner is having permanent disability to the lower limp at 87% which comes to the whole body at 29%.
62. He has also deposed that since petitioner has developed severe arthritis of both knees at his young age, he will need bilateral TKR and fusion of left tallar joint for which surgeries costs may around at least Rs.7,00,000/-and in addition petitioner needs specialized MCR footwear every year which may costs at least around Rs.8,000/- per year.
63. He has also stated in his affidavit evidence that petitioner is in need of one more surgery of removal of implants form right femur for which the cost may around Rs.50,000/- and petitioner is advised to wear ottobock silicon partial foot prosthesis and the cost of the said prosthesis is Rs.49,900/-. The above observed evidence of PW-2 with regard to future treatment is also stated by petitioner in his affidavit evidence.
64. During his chief evidence, PW-2 has produced outpatient sheet, inpatient case sheets 4 in nos. and x- (SCCH-15) 25 MVC.5466/2012 rays 74 in nos. with report. During his cross- examination it is suggested the injury No.4 mentioned in the wound certificate at Ex.P-2 i.e. gangrene to 4 toes and the toe amputation and fusion of great toe left foot 20% are pre-existing injuries which is denied by PW-2. Respondent has not let in any evidence to establish that said suggestions.
65. PW-3 is the treated doctor he has also filed his affidavit evidence reiterating the affidavit evidence of both petitioner and PW-2 with regard to the nature of injuries and treatment; the inpatient period; disability assessment examination; need of future treatment and expense as well as quantum of disability.
66. In his cross-examination he has admitted the suggestion that there is no injury to the hip joint but has denied the suggestion that therefore, petitioner would not have restriction of movements of both hip joints for which he has given explanation that since petitioner has suffered lower 1/3 rd of thigh bone fracture which is adjacent bone, petitioner has the said disability i.e. restriction of movements in both hip joints. (SCCH-15) 26 MVC.5466/2012
67. He has admitted that whatever the disability he has stated is physical disability and not the functional disability. He has denied the suggestion that there is no chance of infection in the injury sight and he has exaggerated the disability.
68. The medical records produced by petitioner and PW-2 are in consonance with the oral evidence of petitioner and PWs-2 and 3. So, if the entire evidence let in by petitioner is taken in a nut shell, it can be safely held that petitioner has suffered fracture of femur and patella; treated surgically; developed gangrene which resulted in amputation of 2 nd to 4th toes and amputation and fusion of great toe; admitted 4 times as an inpatient for totally 48 days and in need of one more surgery for removal of implants and knee replacement.
69. It is the case of petitioner that he has incurred medical expenses of Rs.10,00,000/-. In his affidavit evidence he has stated that he has pent more than Rs.12,53,224/- out of which NIC has reimbursed partial amount of Rs.9,38,742/- and the remaining balance of (SCCH-15) 27 MVC.5466/2012 Rs.3,14,486/- is borne by him and apart from that, he has also spent Rs.50,000/- towards follow up treatment.
70. In his cross-examination it is suggested that he has produced the Xerox copies of the duplicate medical bills and the original bills were submitted to the insurance company and the pharmacy bills are included in the final bill. The said suggestions are denied by petitioner. Except that there is no cross-examination with regard to the medical expenses.
71. To substantiate his oral evidence petitioner has also produced Ex.P-8 to 14 respectively medicalim policy; letter issued by Hosmat hospital; letter issued by NIC; medi claim policy; letters issued Good Health Plan Ltd. along with copy of medical bills and hospital and medical bills 156 in nos. amounting to Rs.3,14,486.25.
72. PW-5 has stated that medical bills were reimbursed in part to an extent of Rs.9,38,742/- and the bills for Rs.2,08,048/- was disallowed from the company. He has furnished details of reimbursement in his affidavit evidence. The details furnished by PW-5 are in corroboration with the affidavit evidence of (SCCH-15) 28 MVC.5466/2012 petitioner with regard to his claim for medical reimbursement of Rs.11,46,790/- out of which NIC has reimbursed Rs.9,38,742/- and disallowed Rs.2,08,048/-.
73. It is in the cross-examination of PW-5 that Rs.2,05,000/- is disallowed. Except that there is nothing in the cross-examination of petitioner and PW-5. The evidence on record disclose that out of the hospital bill of Rs.11,46,790/-, NIC has reimbursed only Rs.9,38,742/-.
74. Even, in his affidavit evidence, petitioner has contended that he has incurred hospital expenses of Rs.12,53,224/-, as per the documents let in, it is Rs.11,46,790/-. Therefore, even petitioner has contended in his affidavit evidence that Rs.3,14,486.25 is disallowed by NIC, it is evidence on record that it is Rs.2,08,048/-.
75. Therefore, petitioner is entitled for that much of medical expenses i.e. Rs.2,08,048/- which is borne by him. It is also his case that in addition, he has incurred expenses of Rs.50,000/- for follow up. If the nature of injuries, nature of treatment, surgeries he has (SCCH-15) 29 MVC.5466/2012 undergone, the inpatient period, the hospital wherein he took treatment is a private set up and his follow up are taken note off, it appears that petitioner has incurred some more expenses. Hence, in the circumstances of the case, it is thought just and proper to award Rs.2,50,000/- including the non reimbursed medical expenses of Rs.2,08,048/-.
76. It is in the evidence of PWs-2 and 3 that because of development of severe arthritis of both the knees, petitioner is in need of bilateral TKR and fusion of the left tallar joint for which surgeries will cost at least Rs.7,00,000/-. But it is in the affidavit evidence of petitioner that he is in need of Rs.3,00,000/- for total knee replacement.
77. At this stage, it is important to note that whenever, petitioner appeared before the Court, he used to brought on the wheel chair. Even there is no question posed to the doctor in that regard, it is suggested for respondent to petitioner that to get sympathy of Court, he comes to Court on wheel chair. (SCCH-15) 30 MVC.5466/2012
78. Therefore, for better appreciation of evidence, petitioner was directed to be present before the Court for physical examination. In response which he was present before the Tribunal on 13.02.2015 and he was asked to stand and to walk. But he could not stand without support and was unable to walk because of non support of his left knee joint. Therefore, the replacement of left knee appears must.
79. It is in the evidence of petitioner that for removal of implant of right femur and removal of screws from both right and left tibia, he is in need of Rs.50,000/-. It is in the evidence of PWs-2 and 3 that for surgery for removal of implants of femur, the cost may around Rs.50,000/-.
80. It is in the affidavit evidence of petitioner that for ottobock silicon partial foot prosthesis the cost is around Rs.49,900/-. The same is deposed by PWs-2 and 3 as well. Amputation of toes and fusion of great toe are admitted facts.
81. But the above stated surgeries cost and the future medical expenses are admittedly of a private set (SCCH-15) 31 MVC.5466/2012 up. Hence, considering the said evidence, the facts and circumstances of the case, the nature of injuries and the need of future treatment, it is thought just and proper to award Rs.3,00,000/- towards future medical expenses.
82. Of course, it is in the evidence of PW-3 that whatever the disability he has stated is the physical disability and not the functional disability. But it is evident on record that the agency of petitioner is terminated by both LIC and NIC because of inadequate business and the income of petitioner also reduced considerably which show that petitioner is unable of carrying on his business. Hence, petitioner is of course, entitled for loss of future earning as well.
83. It is the evidence of both PWs-2 and 3 that petitioner is having permanent disability of 29% to the whole body because of disability of 87% to the total lower limb. Therefore, considering the nature of injuries, the age of petitioner, his qualifications and the nature of his avocation, it is thought just and proper to take the whole body disability at 25% for calculation of (SCCH-15) 32 MVC.5466/2012 loss of future income, loss of amenities and comforts as well as for permanent physical impairment.
84. In the decision reported in 2014 AIR SCW 856 it is held that;
"Motor Vehicles Act (59 of 1988), S.168 - Accident -Compensation - Claimant 25 years of age at time of accident - Suffered paralysis, 80% disability - was earning steady income - Addition of 50% to his income could be made - Correct multiplier to be applied would be 15 - Compensation of Rs.19,91,702/- granted to claimant under the heads loss of income, medical expenses further treatment, pain and suffering, mental agony and cost of attendant till he remains alive."
85. In present case also, petitioner at his age of 31 years suffered disability of 87% to the total limbs. Of course, if the qualifications of petitioner are taken note off, he can do any job of table work in future. In his experience as LIC and NIC agent, he can do consultancy in the said filed.
86. However, the disability he has will definitely come in the way of his functional ability. Therefore, in the circumstances of the case, in view of the dictum (SCCH-15) 33 MVC.5466/2012 laid down in the above citation, it is thought just and proper to award at least 15% of future prospectus. In the result, petitioner is entitled for compensation under the heads mentioned below and the amount stated against them.
Pain and Sufferings Rs. 1,00,000/-
Loss of income during laid up Rs. 1,50,000/- period, Diet, Nourishment and etc. Attendant charges, Conveyance, Rs.
1,00,000/-
other Incidental Charges and etc. Medical Expenditure Rs. 2,50,000/-
Future Medical Expenditure Rs. 3,00,000/- Loss of Future Income Rs12,96,000/-
(27,000 x 12 x 25/100 x 16) 15% Future Prospectus Rs. 1,94,400/- Loss of Amenities and Comfort Rs. 2,00,000/- Permanent Physical Impairment Rs. 3,00,000/-
Total:
Rs.28,90,400/-
87. Petitioner has sought interest at the rate of 12% p.a. Considering the cost of living on the date of accident, it is thought fit to award interest @ 8% p.a. from the date of petition till realization of the compensation amount in its entirety.
88. Now, in respect of liability. There is no dispute between the parties with regard to the fact that (SCCH-15) 34 MVC.5466/2012 respondent is the RC owner and internal insurer of APSRTC bus. Therefore, respondent is liable to pay the compensation.
89. In view of levying contributory negligence on the part of petitioner at 20%, he is not entitled for that much of compensation. Hence, petitioner is entitled for compensation of (Rs.28,90,400/- minus 5,78,080/- equal to Rs.23,12,320/- and rounded off to) Rs.23,12,000/-. So for interest, petitioner is not entitled for interest on compensation amount with regard to future medical expenses.
90. Therefore, petitioner is entitled for total compensation amount of Rs.23,12,000/- and excluding the award towards future medical expenses of Rs.3,00,000/-, petitioner is entitled for the interest at the rate of 8% p.a. on the remaining compensation amount of Rs.20,12,000/- from the date of petition till the realization of the compensation in its entirety from respondent. Issue No.2 is answered accordingly.
91. ISSUE No.3:- From the above discussions, this Tribunal proceeds to pass the following order. (SCCH-15) 35 MVC.5466/2012
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for total compensation amount of Rs.23,12,000/- and excluding the award towards future medical expenses of Rs.3,00,000/-, petitioner is entitled for interest at 8% p.a. on the remaining compensation amount of Rs.20,12,000/- from the date of petition till the realization in its entirety from respondent.
Respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.10,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years renewable for another period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in the open Court by me on this the 31st day of March, 2015.) (K.KATYAYINI), (SCCH-15) 36 MVC.5466/2012 XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PETITIONER:
PW1: Mr.Vijay PW2: Dr.Krishan Prasad PW3: Veerappa.A.B. PW4: Yadarti Harindra PW5: M.Krishna
LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENTS:
RW1: Srinivasulu LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER:
Ex.P1 - CC of FIR & complaint Ex.P2 - CC of wound certificate Ex.P3 - CC of wound certificate Ex.P4 - CC of mahazar Ex.P5 - IMV report Ex.P6 - CC of charge sheet Ex.P7 - 4 discharge summary Ex.P8 - Mediclaim policy Ex.P9 - Letter issued by Hosmat hospital Ex.P10 - Letter issued National Insurance Co. Ex.P11 - Mediclaim policy Ex.P12 - Letter issued by Good health plan Ltd., along with copy of medical bills Ex.P13 - Letter issued by Good Health plan Ltd., along with copy of medical bills Ex.P14 - 156 medical bills for Rs.3,14,486.25/- Ex.P15 - 24 prescriptions Ex.P16 - True copy of degree certificate (compared with original and returned back to the petitioner) (SCCH-15) 37 MVC.5466/2012 Ex.P.17 - True copy of attendance certificate issued by LIC (Compared with original and returned back to the petitioner) Ex.P18 - True copy of allotment of Agency Code issued by LIC (Compared with original and returned back to the petitioner) Ex.P19 - True copy of licence issued by IRDA (Compared with original and returned back to the petitioner) Ex.P.20 - True copy of ID card (Compared with original and returned back to the petitioner) Ex.P.21 - True copy of licence issued by IRDA (Compared with original and returned back to the petitioner) Ex.P.22 - True copy of ID card issued by LIC (Compared with original and returned back to the petitioner) Ex.P.23 - True copy of licence issued by IRDA (Compared with original and returned back to the petitioner) Ex.P24 - True copy of ID card issued by LIC (Compared with original and returned back to the petitioner).
Ex.P25 - True copy of ID card issued by National Insurance Company Ltd. (Compared with original and returned back to the petitioner). Ex.P26 - True copy of ID card issued by LIC (Compared with original and returned back to the petitioner).
Ex.P.27 - True copy of ID card issued by NICL (Compared with original and returned back to the petitioner).
Ex.P28 - True copy of Training certificate issued by LIC (Compared with original and returned back to the petitioner).
Ex.P29 - True copy of Gennext Agent ID card issued by LIC (Compared with original and returned back to the petitioner).
Ex.30 - True copy of Participation certificate (Compared with original and returned back to the petitioner).(SCCH-15) 38 MVC.5466/2012
Ex.P31 - True copy of candidate result in CIS (Compared with original and returned back to the petitioner).
Ex.P32 - True copy of letter of empanelment (Compared with original and returned back to the petitioner).
Ex.P33 - True copy of PAN Card (Compared with original and returned back to the petitioner). Ex.P34 - True copy of IT returns acknowledgement for the assessment year 2011-12 (Compared with original and returned back to the petitioner). Ex.P35 - True copy of Form 16A (Compared with original and returned back to the petitioner). Ex.P36 - True copy of Form No.16A (Compared with original and returned back to the petitioner). Ex.P37 - True copy of statement of accounts (Compared with original and returned back to the petitioner).
Ex.P38 - True copy of IT returns for the assessment year 2009-10 (Compared with original and returned back to the petitioner).
Ex.P39 - True copy of Form No.16A issued by LIC (Compared with original and returned back to the petitioner).
Ex.P40 - True copy of Form No.16A issued by NIC (Compared with original and returned back to the petitioner).
Ex.P41 - True copy of statement of accounts (Compared with original and returned back to the petitioner).
Ex.P42 - True copy of IT returns for the assessment year 2009-10 (Compared with original and returned back to the petitioner).
Ex.P43 - True copy of Form No.16A issued by LIC (Compared with original and returned back to the petitioner).
Ex.P44 - True copy of Form No.16A issued by NIC (Compared with original and returned back to the petitioner).(SCCH-15) 39 MVC.5466/2012
Ex.P45 - True copy of statement of account (Compared with original and returned back to the petitioner).
Ex.P46 - True copy of acknowledgement of IT returns for the assessment year 2008-09, 2007-08 and 2006-07 (3 in Nos) (Compared with original and returned back to the petitioner). Ex.P47 - True copy of Form No.16A issued by LIC (Compared with original and returned back to the petitioner).
Ex.P48 - True copy of Form No.16A issued by NIC (Compared with original and returned back to the petitioner).
Ex.P49 - True copy of Form No.16A issued by LIC (Compared with original and returned back to the petitioner).
Ex.P50 - True copy of Form No.16A issued by NIC (Compared with original and returned back to the petitioner).
Ex.P51 - True copy of Form No.16A issued by LIC (Compared with original and returned back to the petitioner).
Ex.P52 - True copy of Form No.16A issued by NIC (Compared with original and returned back to the petitioner).
Ex.P53 - Certificate of termination Ex.P54 - Certificate issued by NIC Ex.P55 - Letter issued by Hosmat hospital Ex.P56 - Letter issued by Ottobock hospital Ex.P.57 - Letter issued by Hosmat hospital Ex.P.58 - 8 physiotherapy cards Ex.P.59 - True copy of driving licence (Compared with original and returned back to the petitioner) Ex.P60 - 15 photos Ex.P61 - Outpatient Sheet Ex.P62 - Inpatient Case Sheet 4 in no.'s Ex.P63 - 74 x-rays along with Report Ex.P64 - X-ray Ex.P65 - Authorisation letter, (SCCH-15) 40 MVC.5466/2012 Ex.P66 - True copy of Agent Status Report pertains to Vijay, Agent code:05616602, Ex.P67 - True copy of consolidated financial year Earnings of Agent pertains to Vijay, Agent code:05616602, Ex.P68 - True copy of consolidated Agency year earnings of Agent pertains to Vijay, Agent code:05616602, Ex.P69 - Termination Action.
Ex.P70 - Authorization letter.
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS:
- Nil -
(K.KATYAYINI), XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.(SCCH-15) 41 MVC.5466/2012
31/03/2015:
Judgement pronounced in the open court (vide separate order) ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for total compensation amount of Rs.23,12,000/- and excluding the award towards future medical expenses of Rs.3,00,000/-, petitioner is entitled for interest at 8% p.a. on the remaining compensation amount of Rs.20,12,000/- from the date of petition till the realization in its entirety from respondent.
Respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.10,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years renewable for another period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of petitioner through an account payee cheque without awaiting further orders.
Advocate fee is fixed at Rs.2,000/-.
Draw a decree accordingly.
(K.KATYAYINI) (SCCH-15) 42 MVC.5466/2012 XIII Addl. Judge & Member MACT Court of Small Causes, Bengaluru.
AWARD SCCH NO.15 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL METROPOLITAN AREA: BENGALURU CITY MVC No.5466/2012 Petitioner/s Vijay, S/o S.Raju, Aged about 29 years, Residing at No.1690, 4th A Cross, 9th Main, HAL III Stage, Bengaluru - 560 075.
(By Pleader -
Sri.Mohd.Sheriff.) V/s Respondent/s The Managing Director, APSRTC, Mushirabad, Hyderabad, Andhra Pradesh.
(Owner of bus bearing registration No.AP-20 Z-0059.) (By Pleader - Sri.D.V.Vijay Kumar.) WHEREAS, this petition filed on by the petitioner above named under Section 166 of the M.V.Act, 1988, praying for compensation of Rs.(SCCH-15) 43 MVC.5466/2012
for the injuries sustained by the petitioner/death in a motor accident caused by vehicle bearing No. WHEREAS, this claim petition coming up before K.Katyayini, Judge, Member-MACT, Bengaluru, in the presence of Shri Advocate for petitioner/s and of Shri Advocate for respondent.
ORDER The present petition filed by the petitioner under Section 166 of MV Act is hereby allowed in part with costs.
In the result, petitioner is entitled for total compensation amount of Rs.23,12,000/- and excluding the award towards future medical expenses of Rs.3,00,000/-, petitioner is entitled for interest at 8% p.a. on the remaining compensation amount of Rs.20,12,000/- from the date of petition till the realization in its entirety from respondent.
Respondent shall deposit the compensation amount together with interest and cost within 30 days from today.
On deposit of compensation amount petitioner shall deposit Rs.10,00,000/- in Karnataka Bank, City Civil Court Branch, Bengaluru for a period of 5 years renewable for another period of 5 years and the remaining compensation amount together with interest and cost is ordered to be released in favour of petitioner through an account payee cheque without awaiting further orders.(SCCH-15) 44 MVC.5466/2012
Advocate fee is fixed at Rs.2,000/-.
Given under my hand and seal of the Court this the day
of 2015.
MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL,
METROPOLITAN AREA: BENGALURU.
By the By the Respondent
Petitioners
Court fee paid on petition
Court fee paid on Powers
Court fee paid on I.A.
Process
Pleaders Fee:
Total
Decree Drafted by: Scrutinised by:
Decree Clerk: Sheristedar: MEMBER
MOTOR ACCIDENT CLAIMS
TRIBUNAL
(SCCH-15) 45 MVC.5466/2012