Bangalore District Court
In Saddling Liability On It vs Under Section 170 Of The Motor Vehicles ... on 20 June, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 20th day of June, 2015.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B. (Spl), L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
M.V.C.No.207/2013
Munanjaneya.Y.C., ..... PETITIONER
S/o Channamaraiah,
Aged about 24 years,
Residing at Hennagere,
Solur Hobli, Magadi Taluk,
Ramanagara District.
(By Sri. B.R.Srinath, Adv.,)
V/s
1.Bharathi Axa General Insurance Co. ....RESPONDENTS
Ltd.,
Pride Quadra,
No.30, 3rd Floor,
Bellary Road, Hebbal,
Bangalore - 560 024.
(Insurer)
(Policy
No.FCY/I1080783/41/11/B1415A
Valid from 20.11.2012 to 19.11.2013)
Tractor bearing Registration No.KA52-
T-976)
2. Ramakrishnaiah,
S/o Late Nanjappa,
No.26, Thippenahalli Village,
Nagasandra Post,
Bangalore - 560 073.
M.V.C. NO.207/2013
2 (SCCH-7)
(Insured)
(R-1 By Sri. D. Manjunath, Adv.,)
(R-2 Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 166 of the Motor Vehicles Act, 1989 praying to award compensation of Rupees 7,00,000/- from the Respondents under all the heads of damages, with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) On 24.12.2012 at about 5.45 p.m., when he was riding his Motor Cycle bearing Registration No.KA-04-HF-8286 on Bangalore - Tumkur NH - 4 Service Road, towards Nelamangala, carefully and cautiously and when he reached near Arunodaya Lodge, Chikkabidarakallu, at that time, all of a sudden, a Tractor bearing Registration No.KA-52-T-976 being driven by its driver by its driver, in a rash and negligent manner, with high speed neglecting all the Traffic Rules and Regulations came from opposite direction to the extreme right side of the road and dashed against his vehicle. As a result of this, he fell down and sustained grievous injuries on his left leg and other parts of the body.
b) Immediately after the accident, he was shifted to Sapthagiri Hospital for treatment, wherein, X-rays were taken, which confirms type III - B compound communited fracture both bones left leg, middle 3rd. Later, he was shifted to BGS Global M.V.C. NO.207/2013 3 (SCCH-7) Hospital for better treatment. He underwent conversancy wound debridement and external fixation done. He was in the Hospital as an inpatient from 25.12.2012 to 31.12.2012. After discharge, till today, he is taking treatment as an outpatient. He spent Rupees 8,000/- towards treatment, medicine, conveyance and nourishment charges. Hence, this Petition.
3. In response to the notice, the Respondent No.1 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.1 had not filed the written statement. Later, as per the Order dated 07.11.2014 passed on I.A.No.I, the written statement filed by the Respondent No.1 is taken on file.
4. Though the notice was duly served on the Respondent No.2, he was remained absent and hence, he is placed as exparte on 01.03.2013.
5. The Respondent No.1 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The claim petition is not maintainable either in law or on facts of the case.
b) It had issued a policy in respect of the 2nd Respondent's vehicle, Tractor bearing Registration No.KA-52-T- 9763 and the policy was in force as on the date of alleged accident. The issuance and the validity of the policy shall not be construed as an admission of the liability on the part of the 2nd Respondent and the liability of it, if any, is subject to the terms and conditions of the policy, verification of engine and chassis M.V.C. NO.207/2013 4 (SCCH-7) number, the validity and effective driving licence of the driver of the vehicle, permit/FC and subject to the limits of liability and grounds for defending the claim as enshrined in Section 147 and Section 149 (2) of the Motor Vehicles Act, 1988.
c) The 2nd Respondent is duty bound under Section 134(c) of the Motor Vehicles Act, 1988 to inform and furnish the particulars as envisaged in the Section in connection with the alleged accident to the insured and further the 2nd Respondent is required to co-operate it in contesting the claim as per the terms and conditions of the policy and hence, in the present case, if in case, the liability is fastened upon the 2nd Respondent, he is debarred from seeking indemnification from it due to the lapses on his part in discharging statutory and contractual obligations.
d) There is dereliction of statutory duty on the part of the Officer-in-charge of the jurisdictional Police in not forwarding the copy of report either to it or to this Hon'ble Tribunal within 30 days from the date of recording information regarding alleged accident as contemplated under Section 158(6) of the Motor Vehicles Act, 1988 and thus, for taking necessary action, such erred Police Officer is to be summoned by the Hon'ble Tribunal by exercising the powers conferred upon it by virtue of Rules 237 and 248 of the Karnataka Motor Vehicles Rules, 1988.
e) In the course of the claim, if the Respondent No.2, is placed exparte or fails to contest the claim or colluded with the claimant in saddling liability on it, it may be permitted to contest the claim on all or any of the grounds that are available to the 2nd Respondent under Section 170 of the Motor Vehicles Act, 1988 M.V.C. NO.207/2013 5 (SCCH-7) without prejudice to the provisions contained in Section 149 of the M.V. Act, 1988.
f) The Police records coupled with the investigation conducted by its company reveals that, it was the Petitioner, who was in a high speed and was riding the Motor Cycle in a rash and negligent manner and in an attempt to overtake an another vehicle ahead of it, the Petitioner hit the insured vehicle and hence, the accident took place due to sole negligence of the Petitioner, who unmindful of vehicular movements. The Petitioner did not have any DL to ride the Motor Cycle.
g) The Petitioner's claim has no legal basis and he is not entitled for any compensation as claimed in the petition. Hence, prayed to dismiss the claim petition.
6. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that the accident occurred due to rash and negligent driving of the Tractor bearing Registration No.KA-52-T-976 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
3. What Order?
M.V.C. NO.207/2013 6 (SCCH-7)
7. In order to prove his case, the Petitioner himself has been examined as P.W.1 and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.21. On the other hand, the Respondent No.1 has not adduced any evidence on its behalf.
8. Heard the arguments.
9. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for a sum of
Rupees 5,86,591/- with
interest at the rate of 6%
p.a. (excluding future
medical expenses of
Rupees 10,000/-) from
the date of the petition till
the date of payment, from
the Respondent No.1.
Issue No.3 : As per the final Order,
for the following;
REASONS
10. ISSUE NO.1 :- The P.W.1, who is the Petitioner in his examination-in-chief has stated that, on 24.12.2012 at about 5.45 p.m., when he was riding his Motor Cycle bearing Registration No.KA-04-HF-8286 on Bangalore - Tumkur NH - 4 Service Road, towards Nelamangala, carefully and cautiously and when he reached near Arunodaya Lodge, Chikkabidarakallu, at that time, all of a sudden, a Tractor bearing Registration No.KA-52-T-976, being driven by its driver, in a rash and negligent manner, with M.V.C. NO.207/2013 7 (SCCH-7) high speed, neglecting all the traffic rules and regulations came from opposite direction to the extreme right side of the road and dashed against his vehicle and as a result of this, he fell down and sustained grievous injuries on his left leg and other parts of the body. He has further stated that, immediately after the accident, he was shifted to Sapthagiri Hospital for treatment. X-rays were taken, which confirms type III - B compound communited fracture both bones left leg, middle 3rd and later, he was shifted to BGS Global Hospital for better treatment and underwent emergency wound debridement and external fixation done and referred back to ESI Hospital for further management. He has further stated that, he was in the Hospital as an inpatient from 25.12.2012 to 31.12.2012 and later, he was shifted to ESI Hospital on 31.12.2012 and underwent wound debridement and split skin grafting and Biped cal Flap applied and got discharged on 15.02.2013. He has further stated that, he was again admitted to HCG Hospital on 25.05.2013 and underwent Debridement of the infected bone and wound, external fixator applied and regular dressing of wound done and got discharged on 03.06.2013 and again he was admitted to Sharavathi Hospital on 29.08.2013 and underwent Titanium interlocking Nail partial Fibulectomy and got discharged on 05.09.2013. He has further stated that, in the accident, his Motor Cycle was damaged and he got it repaired. He has further stated that, Madanayakanahalli Police have registered a case in Crime No.669/2012 under Section 279 and 337 of IPC against the said drive of the Tractor.
11. To corroborate his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 MVI Report, Ex.P.5 Charge sheet, Ex.P.6 Wound M.V.C. NO.207/2013 8 (SCCH-7) Certificate, Ex.P.7 to Ex.P.10 Discharge Summaries 4 in numbers, Ex.P.18 X-ray films 9 in numbers, Ex.P.19 Photographs 7 in numbers and Ex.P.19(a) CD relating to Ex.P.19 Photographs.
12. On perusal of the contents of Ex.P.1 FIR and Ex.P.2 Complaint, it clearly goes to show that, the Petitioner himself has lodged Ex.P.2 Complaint as against the driver of the offending Tractor bearing Registration No.KA-52-T-976 before the Madanayakanahalli Police alleging that, on 24.12.2012, when he was proceeding on his Motor Cycle bearing Registration No.KA-04- HF-8286 at 5.45 p.m., near Arunodaya Lodge, Chikkabidarakallu, Bangalore - Tumkur NH-4 Service Road, at that time, the offending Water Tanker Tractor bearing Registration No.KA-52-T- 976 came from Nelamangala to Bangalore with high speed, rash and negligent manner and dashed to his Motor Cycle and due to the said impact, his Motor Cycle crushed and the wheel of the Tractor ran over on his left leg and as such, he sustained grievous injuries and immediately, the public were shifted him to Sapthagiri Hospital through 108 Ambulance and as such, he prayed to take legal action as against the driver of the Water Tanker Tractor and based on the said Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the said Water Tanker Tractor for the offences punishable under Section 279 and 337 of IPC under Crime No.669/2012. It is also clear from the contents of Ex.P.1 FIR and Ex.P.2 Complaint that, there is no delay as such in lodging Ex.P.2 Complaint by the Petitioner to the jurisdictional Police in respect of the road traffic accident.
M.V.C. NO.207/2013 9 (SCCH-7)
13. The contents of Ex.P.3 Spot Panchanama and Ex.P.4 MVI Report further clearly disclosed about the involvement of the offending Water Tanker Tractor bearing Registration No.KA-52-T- 976 as well as its driver in the said road traffic accident. It is clearly mentioned in Ex.P.4 MVI Report about the damages caused to both the said vehicles. It is also mentioned that, the said accident was not occurred due to any mechanical defects of the said vehicles.
14. The contents of Ex.P.6 Wound Certificate disclosed that, immediately after the accident, the Petitioner was admitted in Sapthagiri Hospital with a history of road traffic accident, on 24.12.2012 at about 6.00 p.m., near Chikkabidarakallu, NH-4 Road, allegedly hit by a Tractor (Water Tanker) and on examination, it is found that, he has sustained Crush lacerated wound 20x15cm x bone deep middle third of left leg, which is grievous in nature and fresh.
15. The contents of Ex.P.7 to Ex.P.10 Discharge Summaries clearly disclosed that, by admitting as an inpatient from 25.12.2012 to 31.12.2012 in B.G.S. Global Hospital, the Petitioner took treatment to the said injuries, i.e., for 7 days, again he took treatment to the said accidental injuries in ESIC PGIMS & R and Model Hospital by admitting as an inpatient from 31.12.2012 to 15.02.2013, i.e., for 47 days, from 25.05.2013 to 03.06.2013 at HCG Hospital, i.e., for 10 days and from 29.08.2013 to 05.09.2013, i.e., for 8 days at Sharavathi Hospital. From this, it is made crystal clear that, in total 72 days, by admitting as an inpatient, the Petitioner took treatment to the said accidental injury in different Hospitals. Ex.P.18 X-ray films 9 in M.V.C. NO.207/2013 10 (SCCH-7) numbers, Ex.P.19 Photographs 7 in numbers and Ex.P.19(a) CD relating to the said Photographs further clearly disclosed about the nature of the injuries sustained by the Petitioner in the said road traffic accident as well as his condition during the course of treatment.
16. The Petitioner has also examined Dr.B.Ramesh as P.W.2, who has stated that, on verification of records, the Petitioner gave history of road traffic accident on 24.12.2012 and had taken treatment at B.G.S. Global Hospital, HCG Hospital and Sharavathi Hospital and he had sustained type III B Compound communited fracture both bones left leg middle 3rd and he underwent external fixation and at the later stage, fixator was removed and underwent titanium interlocking nail. The said evidence of P.W.2 is also corroborated with the contents of the above said material medical documents as well as the oral version of P.W.1.
17. The contents of Ex.P.5 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, due to high speed, rash and negligent manner of driving of the offending Water Tanker Tractor bearing Registration No.KA- 52-T-976 by its driver, the said road traffic accident was taken place on 24.12.2012 at about 5.45 P.M., which dashed to the Petitioner, when he was proceeding on his Motor Cycle bearing Registration No.KA-04-HF-8286 in front of Arunodaya Lodge, Bangalore - Tumkur NH-4 Service Road and due to the said impact, the said Motor Cycle was badly damaged and the said offending Tractor ran over the left leg of the Petitioner and due to which, he had sustained severe grievous injuries and as such, M.V.C. NO.207/2013 11 (SCCH-7) after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the offending Water Tanker Tractor for the offences punishable under Section 279 and 338 of IPC.
18. The contents of the above said Police and Medical documents clearly corroborated with the oral version of P.W.1 and P.W.2 and clarify the fact that, the offending Water Tanker Tractor bearing Registration No.KA-52-T-976 as well as its driver are very much involved in the said road traffic accident, wherein, the Petitioner had sustained grievous injuries on his left leg. To deny or discard the same, nothing is available on record on behalf of the Respondents. The P.W.1 has also denied the suggestions and questions put by the Respondent No.1, while cross-examination.
19. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, by adducing acceptable material evidence, both oral and documentary, the Petitioner has positively proved that, due to high speed, rash and negligent manner of driving of the offending Water Tanker Tractor bearing Registration No.KA-52-T-976 by its driver, the road traffic accident was taken place, wherein, the Petitioner had sustained severe grievous injury. Accordingly, I answered Issue No.1 in the Affirmative.
20. ISSUE NO.2 :- The Petitioner has produced Ex.P.12 Driving Licence relating to him, which disclosed that, his date of birth is on 15.06.1987. The date of accident is on 24.12.2012. From this, it appears that, at the time of accident, the Petitioner was 26 years old. Hence, the age of the Petitioner is considered as 26 years at the time of accident.
M.V.C. NO.207/2013 12 (SCCH-7)
21. The P.W.1 has stated that, at the time of accident, he was working as Production Staff in M/s Trinite Electrical Industry and he was earning a monthly salary of Rupees 12,000/- per month. In this regard, the Petitioner has produced Ex.P.11 Pay Slip for the Month of November 2012, which disclosed that, during November 2012, his Gross Salary is Rupees 8,410/- and Net Salary is Rupees 7,654/-. But, only based on the said oral version of P.W.1 as well as the contents of Ex.P.11 Pay Slip, it cannot be believed and accept the case made out by the Petitioner that, at the time of accident, he was working as Production Staff in M/s Trinite Electrical Industry and he was earning a monthly salary of Rupees 12,000/- per month, as, the Petitioner has not examined the author of the Ex.P.11 and no signature or seal of his employer is found on Ex.P.11. Further, the Petitioner has not produced any corroborative documents, i.e., Bank Statement, Salary Register or any other authenticated documents to consider his avocation and income. Though the P.W.1 in his cross-examination has stated that, since 10 years, he was working in M/s Trinite Electrical Industry, he has not produced any authenticated documents to consider the same. Though, he has further stated that, he has no hurdle to examine his employer, the Petitioner did not care to examine his employer or its any authorized person. However, as, the Petitioner was 26 years old at the time of accident, in the absence of the acceptable material evidence to consider the income of the Petitioner at the time of accident, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is at Rupees 6,000/- per month, which is reasonable and acceptable one. Therefore, the notational income of the Petitioner is considered at Rupees 6,000/- per month at the time of accident.
M.V.C. NO.207/2013 13 (SCCH-7)
22. While answering Issue No.1, based on Ex.P.6 Wound Certificate, Ex.P.7 to Ex.P.10 Discharge Summaries, Ex.P.18 X-ray films, Ex.P.19 Photographs and Ex.P.19(a) CD, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner had sustained Type III B compound communited fracture both bones left leg middle 3rd and by admitting as an inpatient totally for 72 days, he took treatment to the said accidental injuries at BGS Global Hospital, ESIC Hospital, HCG Hospital and Sharavathi Hospital. It is clearly mentioned in Ex.P.7 Discharge Summary issued by the BGS Global Hospital that, on 25.12.2012 emergency wound debridement + External fixation done under SA and has advised to take follow-up referring back to ESI Hospital for regular cleaning and dressing of the wounds and plastic surgery intervention. It is further clearly disclosed in Ex.P.8 Discharge Summary issued by the ESIC Hospital that, on 10.01.2013 WD + SSG was done under SA and on 31.01.2013, Bipedical POP left leg done under SA (Tibia exposed). Ex.P.9 Discharge Summary further clearly disclosed that, the fracture left leg both bones with complication non-union and as such, surgical correction of fracture of left both bones at BGS Hospital 5 months ago and the Petitioner was underwent debridement of the infected bone and wound external fixator was applied and regular dressing of wound had been done in the said Hospital. The contents of Ex.P.10 Discharge Summary further clearly disclosed that, titanium interlocking nail partial fibulectomy was done at Sharavathi Hospital. From the said line of treatment, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained severe grievous fracture injuries on his left leg.
M.V.C. NO.207/2013 14 (SCCH-7)
23. The P.W.1 has stated that, till today, he is taking treatment as an outpatient in the said Hospitals. By considering the nature of injuries and line of treatment, it is made crystal clear that, the Petitioner was very much required the follow-up treatment from time to time after his initial discharge from the Hospitals. Further, the P.W.2 has stated in his evidence that, the Petitioner was underwent external fixation and at the later stage fixator was removed and underwent titanium interlocking Nail. Therefore, the case made out by the Petitioner that, he is taking treatment as an outpatient is believable and acceptable one.
24. The P.W.1 has stated that, inspite of available treatment, he has suffered disabilities, i.e., he cannot walk without crutches, cannot stand for a long time, cannot bear weight on his left leg, cannot sit, squat, climb and step down stairs, cannot use Indian Toilet, climb and step down stairs, cannot do heavy manual work and often gets pain in his left leg. He has further stated that, due to the accidental injuries, he is unable to do his job and so he lost income.
25. The P.W.2 has stated that, he examined the Petitioner recently on 06.02.2015 for disability assessment and he complained of pain in left leg, swelling of left leg, wound over left leg, difficulty to squat on floor, cannot walk without support, difficulty to do routine activities. He has further stated that, on clinical examination, he found the disability of Petitioner, i.e., he walks with the help of stick, Swelling of the leg with extensive scar over leg with wound present and restriction of joint movement of left knee - flexion - extension 20 degree, normal 0-125 degree. Left ankle plantar - Dorsiflexion 10 degree and normal 0-70 degree M.V.C. NO.207/2013 15 (SCCH-7) and difficulty to squat on floor, climb upstairs, walk on slope, kneel difficulty to stand on affected limb. He has further stated that, the radiological examination showed fracture tibia united with implants in situ and fibula mal united. He has opined that, the Petitioner suffers from permanent physical disability of 40% of left lower limb, which is about 20% to the whole body, which is permanent in nature. In support of his oral version, the P.W.2 has produced Ex.P.20 Outpatient Record and Ex.P.21 X-ray film.
26. No doubt, the P.W.1 is not a treated Doctor. Further, the Petitioner has not examined the treated Doctor, to consider the difficulties and disability, which has been suffered by him due to the accidental injuries. But, based on the said grounds, it cannot be thrown away the evidence of P.W.1 and P.W.2 and the contents of Ex.P.20 and Ex.P.21, which is in respect of permanent disability, as, in the said road traffic accident, the Petitioner had sustained severe grievous injury, i.e., type III - B compound communited fracture both bones left leg,, middle 3rd and by admitting as an inpatient for 72 days in differing Hospitals, he took treatment to the said accidental injury and during the course of investigation, he underwent surgery and fixation of internals. Further the P.W.2 in his examination-in-chief has clearly stated that, the radiological examination showed fracture tibia united with implants in situ and fibula mal united. It is clear from the above said Police and Medical documents that, the wheel of the said offending Water Tanker Tractor ran over the left leg of the Petitioner. Furthermore, the P.W.1 in his cross-examination has stated that, now he is not riding the Motor Cycle and at the time of accident, he was doing machine operating work in the said company. Further, the P.W.2 in his cross-examination has clearly M.V.C. NO.207/2013 16 (SCCH-7) stated that, Fibia is a weight bearing bone. Further, the P.W.2 in his cross-examination has clearly admitted that, it will not affect the movement knee and ankle joints and the strength of the muscles is not affected and there is no reduction in joint space. By considering the nature of injuries and line of treatment and also considering the evidence of P.W.1 and P.W.2 in respect of the disability due to the accidental injuries, this Tribunal feels that, it is just, proper and necessary to consider the permanent physical and functional disability of the Petitioner is of 15% to the whole body, which is sustaining by him due to the accidental injury, which is believable and acceptable one. Hence, the permanent physical and functional disability of the Petitioner is considered as 15% to the whole body.
27. No doubt, the P.W.1 in his cross-examination has stated that, his company has not terminated for his service and he has not given a written documents to the said company stating that, he is not working in their company and the said company has not issued notice to him for removal come service. He has further stated that, during November 2012, he had ESI facility as he was a member and he has received Rupees 21,000/- under benefit. But, based on the said evidence, elicited from the mouth of P.W.1 by the Respondent No.1, it cannot be said that, the Petitioner is not entitled for any compensation towards loss of future income and loss of amenities of life arising out of the permanent physical and functional disability, as, the P.W.1 in his evidence has clearly stated that, he was working in a Private Company at the time of accident and now he is not receiving any salary. Furthermore, except Ex.P.11 Pay Slip, the Petitioner has not produced any documents issued by his employer to consider M.V.C. NO.207/2013 17 (SCCH-7) his avocation and income, which is already discussed in detail in the above said discussion. Further, this Tribunal has considered that, the notional income of the Petitioner is Rupees 6,000/- at the time of accident. Hence, the Petitioner is entitled for compensation towards loss of future income arising out of the said permanent physical and functional disability of 15% to the whole body.
28. As this Tribunal has already observed that, the age of the Petitioner was 26 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 17. Therefore, the loss arising out of the said 15% disability for monthly income of Rupees 6,000/- by applying multiplier 17 comes to Rupees 1,83,600/-, i.e., (Rs.6,000/- x 12 x 17 x 15%). Hence, the Petitioner is entitled for a sum of Rupees 1,83,600/- towards loss of future earning arising out of 15% disability.
29. As per Ex.P.6 Wound Certificate and Ex.P.7 to Ex.P.10 Discharge Summaries and evidence of P.W.1 and P.W.2, the Petitioner had sustained type III - B compound communited fracture both bones left leg, middle 3rd. The Petitioner was in the Hospital as an inpatient totally for 72 days. Due to the said injury, the Petitioner could have definitely suffered a lot of pain and agony during the course of treatment. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 50,000/- towards pain and suffering.
30. As it is already observed that, the age of the Petitioner was 26 years. He has to lead remaining his entire life with 15% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a M.V.C. NO.207/2013 18 (SCCH-7) sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
31. The Petitioner had suffered grievous injury and he was in the Hospital as inpatient for 72 days and he could not do any work at least for 8 months and thereby, he deprived the income. Therefore, at the rate of Rupees 6,000/- per month, a sum of Rupees 48,000/- (Rs.6,000/- x 8) has to be awarded towards loss of income during the laid up period.
32. The P.W.1 has stated that, till today, he is taking treatment as an outpatient and he used to visit Hospital in a Taxi and also in auto by paying Rupees 600/- and Rupees 250/- per trip and he has spent Rupees 4,00,000/- towards treatment, medicines, conveyance and nourishment charges. But, the Petitioner has only produced Ex.P.16 Medical Bills 75 in numbers, which is amounting of Rupees 2,39,991/- and Ex.P.17 Medical Prescriptions 38 in numbers. The Petitioner has taken treatment in the Hospitals by admitting as an inpatient totally for 72 days. Considering the nature of the injury and line of treatment given to him, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 2,39,991/-.
33. The P.W.1 has not stated anything about the future medical treatment and its expenses. But, the P.W.2, who is a Doctor, has stated that, the Petitioner needs one more surgery for removal implants, which may cost around Rupees 15,000/-. The P.W.2 has not produced the estimation. Ex.P.6 Wound Certificate and Ex.P.7 to Ex.P.10 Discharge Summaries disclosed about the treatment given to the type III - B compound communited fracture M.V.C. NO.207/2013 19 (SCCH-7) both bones left leg, middle 3rd and insertion of implants in situ to the said injury. The same has also been clearly stated by the P.W.1 and P.W.2. The P.W.2 has clearly stated that, the radiological examination shows fracture tibia united with implants in situ and fibula mal-united. Therefore, the said implants are required to be removed. By considering the same, this Tribunal feels that, in the absence of the medical documentary evidence, it is just, proper and necessary to award, a sum of Rupees 10,000/- towards future medical expenses to the Petitioner.
34. The Petitioner has not disclosed his marital status. However, at the time of accident, the Petitioner was 26 years old and this Tribunal has already come to the conclusion that, due to the accidental injury, he is suffering from permanent physical and functional disability of 15% to the whole body. By considering the same, a sum of Rupees 10,000/- is awarded towards marriage prospects.
35. As the Petitioner was taken treatment as an inpatient for 72 days, it is necessary to award a sum of Rupees 6,000/- towards conveyance charges, Rupees 6,000/- towards attendant charges and Rupees 10,000/- towards food, nourishment and diet charges etc.
36. The P.W.1 has stated that, in the accident, his Motor Cycle was badly damaged and he got it repaired at M/s Prakruthi Motors by paying Rupees 4,625/-. In this regard, the Petitioner has produced Ex.P.4 MVI Report, Ex.P.12 Driving Licence, Ex.P.13 RC, Ex.P.14 Insurance Policy and Ex.P.15 Bills 3 in numbers. No doubt, Ex.P.4 MVI Report disclosed that, in the said road traffic accident, the Motor Cycle bearing Registration No.KA-04-HF-8286 M.V.C. NO.207/2013 20 (SCCH-7) was also caused damages, i.e., head light glass damaged, crash guard left side bend, engine case cover damaged and fuel tank right side dent. Further, it is clear from the contents of Ex.P.12 to Ex.P.14 that, at the time of accident, the Petitioner was having a valid driving licence to ride his Motor Cycle and his Motor Cycle was having a valid RC and Insurance Policy. But, based on the same, it cannot be awarded the entire claim of Rupees 4,625/- as damages in respect of the Motor Cycle belonging to the Petitioner at the time of accident, as, except the production of Ex.P.15 Bills relating to his Motor Cycle to show it is relating to repair charges, the Petitioner has not produced any job card issued by the guarage. Further, the Petitioner is not examined the person, who has repaired his Motor Cycle. In the absence of the same, this Tribunal feels that, as Ex.P.4 clearly disclosed about the damages caused to the said Motor Cycle belonging to the Petitioner in the said road traffic accident and as the Petitioner has produced Ex.P.15 Bills to show repair of his Motor Cycle, this Tribunal feels that, it is just, proper and necessary to award a sum of Rupees 3,000/- as compensation towards damages caused to the Motor Cycle belonging to the Petitioner in the said road traffic accident, Therefore, the Petitioner is entitled for Rupees 3,000/- as compensation towards repair charges of his Motor Cycle.
37. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount Loss of future income
1. Rs.1,83,600=00 arising out of 15% Disability
2. Pain and sufferings Rs. 50,000=00
3. Loss of amenities of life Rs. 20,000=00
4. Loss of income during laid Rs. 48,000=00 M.V.C. NO.207/2013 21 (SCCH-7) up period
5. Actual Medical Expenses Rs.2,39,991=00
6. Future Medical Expenses Rs. 10,000=00
7. Marriage Prospects Rs. 10,000=00
8. Conveyance Rs. 6,000=00
9. Attendant Charges Rs. 6,000=00 Food, Nourishment &
10. Rs. 10,000=00 Diet charges
11. Vehicle Damages Rs. 3,000=00 TOTAL Rs.5,86,591=00
38. In all, the Petitioner is entitled for total compensation of Rupees 5,86,591/- along with interest at the rate of 6% per annum on the above said sum (excluding future medical expenses of Rupees 10,000/-) from the date of Petition till payment.
39. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Water Tanker Tractor bearing Registration No.KA-52-T-976 as well as its driver are very much involved in the said road traffic accident, wherein, the Petitioner had sustained severe grievous injury. The Petitioner in the cause title of the petition as well as in the petition has clearly mentioned that, the Respondent No.1 was an insurer and the Respondent No.2 was an owner of the said offending Water Tanker Tractor bearing Registration No.KA-52-T-976 and also the Insurance Policy number as well as its validity period, which covers the date of accident. Further, the Respondent No.1 in its written statement has clearly stated that, it had issued a policy in respect of the Respondent No.2's vehicle Tractor bearing Registration No.KA-52-T-976 and the policy was in force as on the date of alleged accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.2 was an owner and the Respondent No.1 was an insurer of the said offending Water M.V.C. NO.207/2013 22 (SCCH-7) Tanker Tractor bearing Registration No.KA-52-T-976 and its Insurance Policy was valid, which covers the date of accident. To deny or to discard the same, nothing is available on record on behalf of the Respondent No.2, as, though the notice was duly served on him, he was remained absent and hence, he is placed as exparte. There is no allegation leveled as against the driver of the said offending Water Tanker Tractor in Ex.P.5 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive the said offending Water Tanker Tractor. The violation of the terms and conditions of the Insurance Policy relating to the offending Water Tanker Tractor is not proved by the Respondent No.1 Insurance Company. By producing Ex.P.12 Driving License, the Petitioner has established that, at the time of accident, he was having a valid and effective driving license to ride his Motor Cycle, wherein, he was proceeding at the time of accident. Under such circumstances, the Respondent No.2 being a registered owner and the Respondent No.1 being an insurer of the offending Water Tanker Tractor bearing Registration No.KA-52-T- 976, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.1 is an insurer, it shall indemnify the Respondent No.2. Hence, Issue No.2 is answered accordingly.
40. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 166 of the Motor Vehicles Act, 1989, is hereby partly allowed with costs.
M.V.C. NO.207/2013
23 (SCCH-7)
The Petitioner is entitled for
compensation of Rupees 5,86,591/- with
interest at the rate of 6% p.a. (excluding
future medical expenses of Rupees 10,000/-) from the date of the petition till the date of payment, from the Respondent No.1.
The Respondent No.1 shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, 75% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 25% shall be kept in FD in the name of the Petitioner, in any nationalized Bank of his choice, for a period of 3 years.
Advocate's fee is fixed at Rupees
1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court, on this, the 20th day of June, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
M.V.C. NO.207/2013 24 (SCCH-7) ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Munanjanaya Y.C.
P.W.2 : Dr.B.Ramesh
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : True copy of FIR
Ex.P.2 : True copy of Complaint
Ex.P.3 : True copy of Spot Panchanama
Ex.P.4 : True copy of MVI Report
Ex.P.5 : True copy of Charge Sheet
Ex.P.6 : True copy of Wound Certificate
Ex.P.7 to : Discharge Summaries (4 in nos.)
Ex.P.10
Ex.P.11 : Salary Slip
Ex.P.12 : Notarized copy of Driving Licence
Ex.P.13 : Notarised copy of R.C.
Ex.P.14 : Notarised copy Insurance Policy
Ex.P.15 : Vehicle Repair Bills (3 in Nos.)
Ex.P.16 : Medical Bills (75 in nos.)
Ex.P.17 : Medical Prescriptions (9 in nos.)
Ex.P.18 : X-ray films (9 in nos.)
Ex.P.19 : Photographs (7 in nos.)
Ex.P.19(a) : C.D.
Ex.P.20 : Outpatient Record
Ex.P.21 : X-ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.