Bangalore District Court
With The Jurisdictional Police vs No.2 Has Not Adduced Any Evidence on 27 November, 2015
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this, the 27th day of November, 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.4620/2014
Sri. Leons. T.J., ..... PETITIONER
S/o. Late T.J. Joseph,
Aged about 54 years,
Residing at:
Model Terrace,
A-9, 5th Main,
Malleshpalya,
Bangalore-560075.
(By Sri. K.V.Vijayakumar Gowda, Adv.,)
V/s
1. M/s. SLV Engineers Pvt. Ltd., .....RESPONDENTS
No.15/19, Thudiyalur Road,
Opp. to Indian Oil Petrol Bunk,
Coimbatore -641035.
(Owner of Car bearing No.
TN-38-BY-6778)
2. The Branch Manager,
The Royal Sundaram General Insurance
Co. Ltd.,
No.32, Sovereign,
2 MVC NO.4620/2014
SCCH-7
2nd Floor,
Brigade Road,
Bangalore-25.
(Insurer of Car bearing Reg.No.TN-38-
BY-6778, vide Policy No.VHP/01163979,
Valid from 01.09.2014 to 31.08.2015)
(R1- Exparte)
(R2- By Sri. Ravi. S. Samprathi, Adv.,)
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 1,00,00,000/- with interest and costs.
2. The brief averments of the Petitioner's case are as follows;
a) He claims the following special damages apart from the General damages, like, pain and sufferings, loss of income during treatment period, loss of future income, loss of future medical expenses, loss of amenities, loss of disability, loss of expectation of life etc.,
i) Expenses on medicines, Hospital charges, convBYance, etc., spent so far Rs.10,00,000/-
ii) Attendant charge from the date of accident at Rs.4,000/- p.m. till today. -----
3 MVC NO.4620/2014SCCH-7
iii) Loss of income during treatment period at the rate of Rs.40,000/- p.m. from the date of accident till its trial -----
b) He was hale and healthy at the time of accident and he was employed in Vensil Glons Works at Dooravaninagar, Bangalore as a Area Sales Manager and was earnings Rupees 40,000/- per month. He has lot of potentiality and had bright future in his Career and if he would have continued his services, he would have earned more salary with perks. But, due to accidental injuries, he has deprived from more benefits in his future Career. His future Career is totally restricted and his future life became gloom and bleak. He is deprived off not only from promotions, but, also the monetary loss with perks. He has to depend on others for his livelihood. Further, to take Care of him, his son and his wife availed two months leave and thBY also lost their income. His family put into great financial miseries.
c) He was hale and healthy before the accident and he used to go for his work in his own Car. Due to the accident and injuries sustained by him, in future, he cannot drive any vehicle, even though, he is having driving licence and own Car. In future, he has to depend on others for his daily transportation throughout his lifetime. Due to injury to his left hand and right left, he cannot move on his own, he has to depend on others for his daily routine work. His left hand totally restricted and cannot lift any weight nor moves his left hand and the left hand of him became like a para-pageia. He needs an attendant throughout his life as per the Doctors opinion.
4 MVC NO.4620/2014SCCH-7
d) On 01.10.2014 at about 12.45 p.m., while he was a pedestrian and crossing the road from South to North direction, near Metro Station, M.G. Road, Bangalore, at that time, one Car bearing Registration No.TN-38-BY-6778 driven by its driver in rash and negligent manner with excessive speed, came from Anil Kumble's Circle, M.G. Road and suddenly dashed against him, causing accident and injuries to him. Due to the terrific impact, he fell down on the road and sustained grievous injuries all over the body. The accident occurred due to the sole rash and negligent driving of the above said Car bearing Registration No.TN-38-BY-6778 by its driver. Hence, this Petition.
3. Though the notice was duly served on the Respondent No.1, it was remained absent and hence, it is placed as exparte on 08.01.2015.
4. In response to the notice, the Respondent No.2 has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.2 had not filed the written statement. Later, as per the Order dated 15.04.2015 passed on I.A.No.I, the written statement filed by the Respondent No.2 is taken on file.
5. The Respondent No.2 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The petition is not maintainable either in law or on facts.
5 MVC NO.4620/2014SCCH-7
b) He seeks protection under Section 147 and 149 of the M.V. Act, 1988.
c) As per Section 134(c) of the M.V. Act, 1988, it is mandatory duty of the insured-Respondent No. 1 to furnish the particulars of policy, date, time and place of accident, particulars of the injured and the name of the driver and particulars of driving licence. But, the insured-Respondent No.1 has not complied with statutory demand. Hence, he is not liable to pay any compensation and the case is liable to be dismissed against him for non-compliance of the statutory demand.
d) As per section 158(6) of the M.V. Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned insurer within 30 days from the date of the information, but, the Cubban Park Traffic Police Station Authority have failed to forward the documents and not complied with the statutory demand.
e) He has issued a policy of insurance in favour of first Respondent in respect of Car bearing Registration No.TN-38-BY- 6778 and the liability of his Company, if any, is limited to the terms and conditions of the policy and subject to valid and effective driving licence of the driver in question and subject to confirmation of 64VB of the Insurance Act, 1938.
f) As per Condition No.1 of Policy, the insured first Respondent has to intimate the accident immediately on its occurrence to insurer and produce the required documents and 6 MVC NO.4620/2014 SCCH-7 to co-operate with the insurer in defending the claim effectively. In this case, the insurer has not reported the accident nor submitted the required documents and not co-operating with the insurer and violated Condition No.1 of the Policy, which is a condition precedent to liability. As such, the policy has become null and void and the contract of insurance entered between the insurer and insured cannot be enforceable.
g) On the date of the accident, the Car was being driven in a reasonable speed and Careful manner and there was no rashness or negligence on the part of the driver of Car. The Car did not involve in any accident nor caused accident and injuries to the Petitioner. The Car in question is falsely implicated by the Petitioner with the jurisdictional Police.
h) The accident did not take place in the manner alleged in the petition. The accident occurred due to the negligence on the part of the Petitioner alone, who was crossing the road. The Petitioner without having proper looks out vehicular movements of the road and without noticing on coming vehicles, in negligent manner, enter suddenly and came to the center portion of the road and caused the accident. As such, the accident took place due to the negligence on the part of the Petitioner himself and not due to the negligence on the part of the driver of the Car, as such, the petition is to be rejected for want of negligence on the part of the driver of Car.
i) The Petitioner has not sustained injuries that are mentioned in the petition. The Petitioner has exaggerated the 7 MVC NO.4620/2014 SCCH-7 injuries to get more compensation and as such, the same cannot be believed.
j) He seeks permission of this Hon'ble Court to contest the matter on all the grounds available to the insured under Section 170 of the Motor Vehicles Act, 1988, if the owner/insured fails to contest the claim in collusion with the Petitioner.
k) The amount of compensation claimed Rupees 1,00,00,000/- is highly excessive, exaggerated, arbitrary and speculative, when compared to comparable cases, which have been disposed off.
l) The Petitioner may be directed to confirm that, no other petition is filed before this MACT or before any other MACT, on the same cause of action. The Petitioner may be directed to given an undertaking to this Hon'ble Court that, no such petition is filed on the same cause of action, except this petition.
m) Without prejudice, if this Hon'ble Court were to award compensation, the rate of interest may be restricted to the one allowed by the Banks on deposits as per the guidelines of the Reserve Bank of India and interest not payable over the amount paid to the Petitioner in respect of future expenditures. Interest is to be paid only over the amount, which has became payable on the date of award, as per law laid down by the Hon'ble Supreme Court of India, in A.I.R. 1995 SC 755 (R.D. Hattangadi V/s Pest 8 MVC NO.4620/2014 SCCH-7 Control (India) Ltd., Hence, prayed to dismiss the petition with costs.
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 Car bearing Reg.No.TN-38-BY-6778 by its driver and in the said accident, he sustained injuries?
2. Whether the Petitioner is entitled for compensation and damages? If so, how much and from whom?
3. What Order?
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.18. On the other hand, the Respondent No.2 has not adduced any evidence on his behalf.
8. Heard the arguments.
9. In support of the submission, the Learned Counsel appearing for the Respondent No.2, Sri. Ravi. S. Samprathi, has placed reliance upon the decision reported in, 9 MVC NO.4620/2014 SCCH-7 ILR 2010 KAR 2439 (Sri. Subhash V/s The New India Assurance Co. Ltd., and Others), wherein, it is observed that, Motor Vehicles Act, 1988, Accident Claim
- Judgment and Award - Inadequacy of compensation - Appealed against by the Claimant - Insurance Company appeal seeking reduction in compensation - Claimant continued in the services after the accident - Award of compensation towards loss of future income by the Tribunal - Legality of - HELD, The Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious mis-carriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in service, then the question of awarding compensation towards loss of future income does not arise. - Therefore, compensation awarded towards loss of future income is liable to be set aside - Judgment and Award is modified.
10. 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 compensation
of Rupees 6,94,897/- 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.2.
10 MVC NO.4620/2014
SCCH-7
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who is the Petitioner has stated in his examination-in-chief that, on 01.10.2014 at about 12.45 p.m. while he was crossing the road from South to North direction, near Metro Station, M.G. Road, Bangalore, he sustained grievous injuries as the Car bearing Registration No.TN-38-BY-6778 driven by its driver in a rash and negligently with excessive speed, came from Anil Kumble's Circle, M.G. Road and suddenly dashed against him and causing accident and injuries to him. He has further stated that, the accident occurred due to sole rash and negligence driving of the said Car bearing Registration No.TN-38-BY-6778 by its driver. He has further stated that, immediately after the accident, he was shifted to Bowring Hospital for first-aid treatment, lateron, for better treatment, he was taken to the St.John's Medical College Hospital, Bangalore, wherein, on detailed examination and on X- ray, it was found that, he had sustained grossly comminuted fracture upper third of left humerus, Type II open olecranon fracture left, segmental tibia, right with lower fibula fracture, left frontal bone undisplaced fracture of right frontal lobe very small hemorrhagic contusion and other injuries all over the body. He has further stated that, he was treated as an inpatient in the said Hospital from 01.10.2014 to 14.10.2014.
11 MVC NO.4620/2014SCCH-7
12. No doubt, the P.W.1 in his cross-examination has stated that, when he was crossing the road, there was no pedestrian cross or zebra cross and before the accident, he has not seen the offending Car. But, only based on the said evidence elicited from the mouth of P.W.1 by the Respondent No.2, it cannot be thrown away the above said oral version of P.W.1, which has been stated by him in his examination-in-chief, as, to consider his oral version, the Petitioner has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3 Spot Panchanama, Ex.P.4 Spot Hand Sketch, Ex.P.5 MVI Report, Ex.P.6 Charge Sheet, Ex.P.7 Wound Certificate and Ex.P.8 Discharge Summary, which clearly disclosed that, due to very high speed, rash and negligent manner of driving of the offending Car bearing Registration No.TN-38-BY-6778, by its driver itself, the said road traffic accident was taken placed, which dashed to the Petitioner, when he was crossing the road, wherein, Zebra Cross and there was no negligence on the part of the Petitioner in the commission of the said road traffic accident and the Petitioner has sustained 4 grievous injuries and by admitting as an inpatient for 14 days from 01.10.2014 to 14.10.2014 at St. John's Medical Hospital, the Petitioner took treatment to the said accidental injuries, which is clear from the following discussion. Furthermore, the Petitioner has examined the treated Doctor as P.W.2, who has also produced Ex.P.15 Inpatient Record, Ex.P.16 Outpatient Record, Ex.P.17 X-ray films 5 in numbers, Ex.P.18 C.D. relating to Ex.P.17 X-ray films, which clearly disclosed about the nature of the injuries sustained by the Petitioner in the said road traffic accident and the line of treatment taken by him to the said 12 MVC NO.4620/2014 SCCH-7 accidental injuries, which is also clear from the following discussion. Furthermore, the P.W.1 in his cross-examination has clearly stated that, immediately after the accident, he was unconscious. Further, he has clearly denied the suggestions put to him by the Respondent No.2 that, without observing the vehicular movements at the accidental spot, he suddenly crossing the road and as such, due to his own negligence, the alleged accident was taken place and the negligence is not on the part of the driver of the offending Car and at the time of accident, the driver of the offending Car was not driving it with high speed, rash and negligent manner and he has not sustained any grievous injuries in the alleged accident, but, he had only sustained simple injuries. From this, it clearly goes to show that, though the P.W.1 has been cross-examined by the Respondent No.2, nothing has been elicited from his mouth about his defence. Furthermore, to substantiate its defence, the Respondent No.2 has not adduced any evidence.
13. The contents of Ex.P.1 FIR and Ex.P.2 Complaint clearly disclosed that, the Police Constable, who was on the duty at the accidental spot, has lodged Ex.P.2 Complaint before the Cubbon Park Traffic Police as against the driver of the offending Car bearing Registration No.TN-38-BY-6778 by alleging that, when the Petitioner was crossing the road, wherein zebra cross was there, the driver of the offending Car bearing Registration No.TN-38-BY-6778 came with high speed, in a rash and negligent manner and dashed to the Petitioner and due to the said impact, the Petitioner had sustained grievous injuries and as such, he 13 MVC NO.4620/2014 SCCH-7 prayed to take necessary legal action as against the driver of the said offending Car and based on the Ex.P.2 Complaint, the said Police have registered a criminal case as against the driver of the said offending Car bearing Registration No.TN-38-BY-6778 for the offences punishable under Section 279 and 337 of IPC under Crime No.35/2014. 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 the Ex.P.2 complaint by the eye witness of the said road traffic accident.
14. Ex.P.3 Spot Panchanama, Ex.P.4 Spot Hand Sketch, Ex.P.5 MVI Report, further clearly disclosed that, the accident was taken place on the zebra cross, i.e., pedestrian cross, when the Petitioner was crossing the road and the offending Car dashed to him as it came with very high speed, rash and negligent manner and the entire negligence is on the part of the driver of the offending Car and not on the part of the Petitioner. The damages caused to the offending Car are clearly mentioned in Ex.P.5 MVI Report, which clearly disclosed about the terrific impact of the said accident. It is also clearly mentioned in Ex.P.5 MVI Report that, the said accident was not occurred due to any mechanical defects of the said vehicles.
15. The contents of Ex.P.7 Wound Certificate clearly disclosed that, with an alleged history of road traffic accident said to have been caused on 01.10.2014 at 1.30 p.m., in front of Metro Station, M.G. Road, the Petitioner was admitted in St.John's Medical Hospital, Bangalore and he was referred from Bowring Hospital and on examination on 01.10.2014 at 6.30 14 MVC NO.4620/2014 SCCH-7 p.m., it is found that, he has sustained conscious and oriented head injury, history of loss of consciousness, CT head, undisplaced fracture of left frontal bone and small hemorrhagic contusion over right frontal lobe, tenderness and swelling over left shoulder region, X-ray left arm, comminuted fracture left humerous, laceration over left elbow measuring 6 X 3 cms., with swelling and tenderness, X-ray left elbow, open fracture left olecranon, tenderness and swelling over right leg, X-ray right leg, fracture tibia and fibula, i.e., 4 injuries, which are grievous in nature and by admitting as an inpatient from 01.10.2014 to 14.10.2014, i.e., for 14 days, he took treatment to the said accidental injuries in the said Hospital.
16. The contents of Ex.P.8 Discharge Summary, Ex.P.15 Inpatient Record, Ex.P.17 X-ray Films and Ex.P.18 C.D. clearly disclosed that, by admitting as an inpatient from 01.10.2014 to 14.10.2014, i.e., 14 days, the Petitioner took treatment to the accidental injuries in St. John's Medical College and Hospital. The same has also been clearly stated by the P.W.2, who is a treated Doctor. From this, medical evidence, it is made crystal clear that, in the said road traffic accident, the Petitioner had sustained 4 grievous injuries.
17. The contents of Ex.P.6 Charge Sheet further clearly disclosed that, since during the course of investigation, it is found that, the said road traffic accident was taken place due to high speed, rash and negligent manner of driving of the offending Car bearing Registration No.TN-38-BY-6778 by its driver itself on 01.10.2014 at 12.45 p.m., near Metro Station, M.G. Road, which 15 MVC NO.4620/2014 SCCH-7 dashed to the Petitioner, who was crossing the road on the pedestrian cross and due to the said impact, he had sustained grievous injuries on his head and other parts of the body and the offending vehicle was also damaged and as such, after thorough investigation, the Investigating Officer has filed a charge sheet as against the driver of the said offending Car for the offences punishable under Section 279 and 338 of IPC. No allegation made by the Investigating Officer as against the Petitioner in respect of the negligence on his part in the commission of the said road traffic accident.
18. From the above said material evidence, both oral and documentary, it is made crystal clear that, due to very high speed, rash and negligent manner of driving of offending Car bearing Registration No.TN-38-BY-6778 by its driver itself, the said road traffic accident was taken place and the said offending Car as well as its driver are very much involved in the said road traffic accident, wherein, the Petitioner had sustained 4 grievous injuries. Accordingly, I answered Issue No.1 in the Affirmative.
19. ISSUE NO.2 :- The Petitioner had produced Ex.P.11 Driving Licence relating to him, which disclosed that, his date of birth is 18.11.1960. The date of accident is on 01.10.2014. On perusal of the said dates, it appears that, at the time of accident, the Petitioner was 54 years old. Hence, the age of the Petitioner is considered as 54 years at the time of accident.
16 MVC NO.4620/2014SCCH-7
20. The P.W.1 has stated that, he was hale and healthy at the time of accident and working as an Area Sales Manager at Vensil Glass Works, Dooravaninagar, Bangalore and was drawing a salary of Rupees 17,550/- and other benefits with perks, commission, in total, for a sum of Rupees 40,000/- per month. He has further stated that, he is an Income Tax Assessee. The Petitioner has produced Ex.P.9 Letter dated 16.01.2015 issued by Vensil Glass, which disclosed that, the Petitioner is working with the said Company as an Area Sales Manager covering South India and North India and he is drawing a salary of Rupees 17,560/- per month and he is eligible for other maximum reimbursable perks per month, i.e., conveyance of Rupees 9,000/-, vehicle allowance of Rupees 6,000/-, medical allowance of Rupees 1,500/- and sales incentives of Rupees 5,000/-, per month. But, only based on the said oral version of P.W.1 as well as the contents of Ex.P.9, it cannot be believed and accept that, at the time of accident, the total salary of the Petitioner was Rupees 40,000/-, as, though it is proved from the contents of Ex.P.9 Letter that, at the time of accident, he was working as an Area Sales Manager, to prove its contents, the Petitioner has not examined the author of Ex.P.9 Letter or any other authorized person of the said Company. Even, the Petitioner has not produced his Bank statement or salary register or salary slips or income tax returns. The same has been clearly admitted by the P.W.1 in his cross-examination by stating that, he has not produced any documents to show that, his total income at the time of accident is of Rupees 40,000/- per month. Even, the Petitioner has not disclosed his educational qualification.
17 MVC NO.4620/2014SCCH-7 Therefore, the income of Rupees 40,000/- per month at the time of accident as stated by the Petitioner cannot be believed and accept. However, it is clear from the contents of Ex.P.9 that, at the time of accident, the Petitioner was working as an Area Sales Manager and as the Petitioner was 54 years old at the time of accident, which implies that, he is having family with wife and children, by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 10,000/- per month, which is reasonable and acceptable one. Hence, the notional income of the Petitioner is considered as Rupees 10,000/- per month at the time of accident.
21. The P.W.1 has stated that, he underwent surgery by procedure of ORIF with LCP for left humerus, interlocking nailing for right tibia and WD Scc screw fixation for left proximal ulna at St.John's Medical College and Hospital and discharged with an advise of regular follow-up treatment and as per the advise of the Doctors, he is still under follow-up treatment.
22. The P.W.2 has also stated in his examination-in-chief that, the Petitioner was treated on an emergency basis with open reduction internal fixation with LCP(L) humerus, cannulated cancellous screw fixation with wound debridement (L) proximal ulna, closed reduction, internal fixation with intra medullary inter locking nailing was done on 02.10.2014. He has further stated that, on 14.10.2014 with the advise to review in OPD, the Petitioner was discharged and he has attended the OPD 6 times after discharge.
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23. Based on Ex.P.7 Wound Certificate, Ex.P.8 Case Summary and discharge Record, Ex.P.15 Inpatient Record, Ex.P.16 OPD Record, Ex.P.17 X-ray Film and Ex.P.18 C.D, this Tribunal has already come to the conclusion that, in the said road traffic accident, the Petitioner has sustained 4 grievous injuries in the said road traffic accident and by admitting as an inpatient from 01.10.2014 to 14.10.2014, i.e., 14 days, he took treatment to the said accidental injuries at St.John's Medical College and Hospital. It is also clearly mentioned in the said medical documents that, during the course of treatment, the Petitioner underwent surgery with ORIF to the fracture site. Hence, even after discharge, the Petitioner required regular follow-up treatment as per the advise of the Doctors and as such, the evidence stated by the P.W.1 and P.W.2 in respect of follow- up treatment taken by the Petitioner after discharge is believed and accept.
24. The P.W.1 has stated that, even after the best available treatment and follow-up treatment, he cannot regain from the injuries sustained in the accident and due to injury to the left hand and right leg, he is unable to walk freely and cannot bear any weight in his left hand. He has further stated that, due to the injury to the right leg, he is unable to walk for long distance, cannot run, sit, squat, etc., and further due to the injuries to left hand and right leg, he cannot think of driving any vehicle in future, even though having driving licence and has to depend on others for transportation and even for a small movement in future. He has further stated that, he has another 6 19 MVC NO.4620/2014 SCCH-7 years of service and he had better prospectus and promotions in his future service and due to the accidental injuries, he is unable to continue his work as earlier to the accident and thus, he has deprived from promotions and monetary loss with perks. He has further stated that, his wife availed two months leave and thus, she lost her income during the treatment period and his son also availed two months leave to take care of him and thus, he has also lost his income. He has further stated that, due to this unfortunate incident, he lost his income, job and promotions, etc., and have to depend on others for daily transportation in future, as, he cannot drive any vehicle and cannot walk for small distance as earlier and he cannot use Indian type of toilet and squat on floor, etc., The Petitioner has produced Ex.P.10 Letter dated 16.01.2015.
25. The P.W.2 has stated that, on 08.07.2015, he has examined the Petitioner, he complains of pain with decreased range of movement left shoulder, elbow and forearm and also complains of pain with decreased range of movement of right knee and ankle. He has further stated that, he has difficulty in walking and needs support for walking, climbing stairs up and down, sitting cross legged and squatting. He has further stated that, he has difficulty in carrying out daily activities, difficulty in lifting and holding objects left upper limb. He has further stated that, on examination of left shoulder and arm, primarily healed surgical scar present over anterior aspect, scar, joint line and fracture site tenderness present, range of movement abduction decreased by 45 degree, flexion decreased by 10 degree external 20 MVC NO.4620/2014 SCCH-7 rotation decreased by 20 degree, arm muscles wasting of 1.5 cms., present. He has further stated that, on examination of left elbow, primarily healed scar present over posterior aspect, scar joint line tenderness present, range of movement extension decreased by 15 degree, flexion multiple surgical scar healed by primary intention present over anterior and medical aspect, scar fracture site joint line tenderness present. He has further stated that, the range of movement flexion decreased by 15 degree, extension degree by 5 degree, calf muscles wasting of one cm present. He has further stated that, on examination of right ankle, tenderness present over joint line, range of movement dorsiflexion decreased by 20 degree, plantar flexion decreased by 10 degree. He has further stated that, X-ray done on 08.07.2015 left shoulder with humerus shows mal-united proximal humerus fracture with implant in site, X-ray of left elbow shows united olecranon fracture, with implants in site. He has further stated that, X-ray right knee with leg shows mal-uniting segmental tibia fracture and mal-united fibula fracture with implants in situ. He has further stated that, the Petitioner has 32.54% disability of whole body assessed according to Guidelines and Gazette Notification, Regd. No.DL33004/99 (Extraordinary) Part II, Sec. 1, June 13, 2001 issued by Ministry of Social Justice and Empowerment, GOI. As this Tribunal has already observed about the production of Ex.P.15 Inpatient Record, Ex.P.16 Out Patient Record, Ex.P.17 X-ray films 5 in numbers and Ex.P.18 CD relating to Ex.P.17 X-ray films, by the P.W.2.
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26. But, based on the above said medical evidence as well as the oral version of P.W.1 and P.W.2 coupled with the contents of Ex.P.10 Letter, it cannot be believed and accept that, due to the said accidental injuries, the Petitioner is suffering from disability of 32.54% to the whole body, as, though the Petitioner has produced Ex.P.10 Letter, i.e., Leave Certificate, he has not produced any certificate or documents issued by his employer to show that, due to the said accident and disability, he is unable to do his work and continued his job. Further, the P.W.1 in his cross-examination has stated that, now he is not working. To consider the same, he has not produced any documents. In this regard, he has stated that, he has not produced any documents to show that, after the accident, he has resigned the job or left the Company, wherein, he was working or he was removed from the services. Further, the P.W.2 though is a treated Doctor, he has clearly stated in his cross-examination that, the condition of the Petitioner was improved from the date of admission till he discharged from their Hospital and from 14.10.2014 till 08.07.2015, there was considerable improvement in the condition of the Petitioner and both tibia and fibula and humerus are mal-united and due to combination and fracture pattern and closer to the joint, the said mal-union is occurred and there is no chances to improve the mal-union of the said fracture. He has further stated that, since the implants in situ to the humerus and tibia, it will come some restriction on movements and if implants are removed, to some extent, the restriction will be reduced. He has further stated that, he has not stated about the conversion applied while assessing the disability of the Petitioner 22 MVC NO.4620/2014 SCCH-7 in his affidavit. From the said evidence of P.W.2, it is made crystal clear that, the condition of the fracture site of the Petitioner is in the improved condition and if implants are removed, the Petitioner is not having such extent of disability. Furthermore, no disability certificate is produced either by the Petitioner or P.W.2. Hence, the said extent of 32.54% disability as stated by the P.W.2 cannot be believed and accept.
27. However, due to the said accidental injuries, the Petitioner is definitely suffering from permanent physical and functional disability to some extent, as, at the time of accident, the Petitioner was 54 years old and he was working as an Area Sales Manager and in the said road traffic accident, the Petitioner has sustained undisplaced fracture of left frontal bone and small hemorrhagic contusion over right frontal lobe, tenderness and swelling over left shoulder region, X-ray left arm, comminuted fracture left humerous, laceration over left elbow measuring 6 X 3 cms., with swelling and tenderness, X-ray left elbow, open fracture left olecranon, tenderness and swelling over right leg, X- ray right leg, fracture tibia and fibula, i.e., 4 injuries, which are grievous in nature, as per Ex.P.7 Wound Certificate. By considering the same, this Tribunal feels that, due to the said accidental injuries, the Petitioner is suffering from permanent physical and functional disability of 20% to the whole body, which is believable and acceptable one.
28. The Petitioner has not established that, after the accident, he continued in the service and getting salary regularly. The P.W.1 in his cross-examination has stated that, he has not 23 MVC NO.4620/2014 SCCH-7 produced any documents to show that, after the accident, he has resigned job or the Company, wherein, he was working is removed him from the service. Even, though the Respondent No.2 has cross-examined the P.W.1, nothing has been elicited from his mouth that, even after the accident, the Petitioner is continued his job and getting regular salary, without any loss. The P.W.1 has clearly stated that, now he is not working. From this, it appears that, no acceptable material evidence is available on record to consider that, after the accident, the Petitioner continued in the service and getting regular income without any loss. Further, this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was working as an Area Sales Manager and due to the said accidental injuries, the Petitioner is suffering from the permanent physical and functional disability of 20% to the whole body. To that extent, the Petitioner has to loss future income and future unhappiness and hence, he is entitled for compensation towards loss of future income arising out of the said permanent physical and functional disability of 20%.
29. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 20%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 20%.
24 MVC NO.4620/2014SCCH-7
30. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 54 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma's case is 11.
31. As the Petitioner is suffering from permanent physical and functional disability of 20% to the whole body. The notional income of the Petitioner is already considered as Rupees 10,000/- per month. Therefore, the loss arising out of the said 20% disability for monthly income of Rupees 10,000/- by applying multiplier 11 would comes to Rupees 2,64,000/-, i.e., (Rs.10,000/- x 12 x 11 x 20%).
32. As per Ex.P.7 Wound Certificate and evidence of P.W.1 and P.W.2, the Petitioner had sustained 4 grievous injuries. The Petitioner was in the Hospital as an inpatient from 01.10.2014 to 14.10.2014, i.e., for 14 days. Due to the said injuries, the Petitioner could have definitely suffered a lot of pain and agony. Considering the said aspects, it is just, proper and necessary to award a sum of Rupees 60,000/- towards pain and suffering.
33. As it is already observed that, the age of the Petitioner was 54 years. He has to lead remaining his entire life with 20% permanent physical and functional disability, which comes in the way of enjoyment of life. Therefore, it is just and proper to award a sum of Rupees 20,000/- towards loss of amenities of life to the Petitioner.
25 MVC NO.4620/2014SCCH-7
34. The Petitioner had sustained 4 grievous injuries and he was in the Hospital as an inpatient for 14 days and he could not do any work at least for 3 months and thereby, he deprived the income. Therefore, at the rate of Rupees 10,000/- per month, a sum of Rupees 30,000/- is awarded towards loss of income during the laid up period.
35. The P.W.1 has stated that, for the said treatment, hospitalization, medical bills, nourished food, traveling expenses, etc., he and his family members had spent more than Rupees 10,00,000/- and lost some of the bills and produced bills for a sum of Rupees 2,99,897/-. In this regard, the Petitioner has produced Ex.P.12 Medical Bills 67 in numbers, which is amounting of Rupees 2,99,897/-, Ex.P.13 Advance Receipts 5 in numbers and Ex.P.14 Medical Prescriptions 15 in numbers. Ex.P.12 Medical Bills included the amount covered under Ex.P.13 Advance Receipts, attendant charges and physiotherapy charges. The Petitioner has taken treatment at St. Johns Medical College Hospital, wherein, he was taken treatment as an inpatient from 01.10.2014 to 14.10.2014, i.e., for 14 days. Considering the nature of the injuries 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 2,99,897/- to the Petitioner.
36. The P.W.1 has not stated anything about the future medical assistance and its expenses. The P.W.2 has stated that, the Petitioner requires one more surgery for implant removal, 26 MVC NO.4620/2014 SCCH-7 which may cost him about Rupees 60,000/-. It is clearly mentioned in Ex.P.8 Case Summary and Discharge Record that, during the course of treatment, ORIF with LCP (L) humures WD SCC Screw fixation (L) proximal ulna IL nailing (R) tibia (Sharma titanium) was done on 14.10.2014 under GA, which disclosed about the insertion of implants in situ. The said implants have to be removed and therefore, the Petitioner requires the amount for future medical expenses. Neither the Petitioner nor P.W.2 produced the estimation for removal of implants. However, this Tribunal feels that, it is just, proper and necessary to award future medical expenses of Rupees 10,000/-.
37. As the Petitioner was taken treatment as an inpatient for 14 days, it is necessary to award a sum of Rupees 3,000/- towards conveyance charges, Rupees 3,000/- towards attendant charges and Rupees 5,000/- towards food, nourishment and diet charges etc.,
38. In this way, the Petitioner is entitled for the following amount of compensation:-
Sl. Compensation
Compensation heads
No. amount
Loss of future income
1. arising out of 20% Rs. 2,64,000-00
Disability
2. Pain and sufferings Rs. 60,000-00
3. Loss of amenities of life Rs. 20,000-00
Loss of income during laid
4. Rs. 30,000-00
up period
5. Actual medical expenses Rs. 2,99,897-00
6. Future medical expenses Rs. 10,000-00
7. Conveyance Rs. 3,000-00
27 MVC NO.4620/2014
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8. Attendant Charges Rs. 3,000-00
Food, Nourishment &
9. Rs. 5,000-00
Diet charges
TOTAL Rs. 6,94,897-00
39. In all, the Petitioner is entitled for total compensation of Rupees 6,94,897/- 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.
40. While answering Issue No.1, this Tribunal has already come to the conclusion that, the offending Car bearing Registration No.TN-38-BY-6778 as well as its driver are very much involved in the said road traffic accident, wherein, the Petitioner had sustained four grievous injuries. The Petitioner in the cause title of the petition has clearly mentioned that, the Respondent No.1 is an Owner and the Respondent No.2 is an insurer of the offending Car bearing Registration No.TN-38-BY- 6778 and its Policy No.VHP/01163979, valid from 01.09.2014 to 31.08.2015. The Respondent No.2 in its written statement has clearly stated that, he has issued a policy of insurance in favour of the Respondent No.1 in respect of Car bearing Registration No.TN-38-BY-6778. The said period of insurance policy includes the date of accident. From this, it is made crystal clear that, at the time of accident, the Respondent No.1 was a R.C. Owner and the Respondent No.2 was an Insurer of the offending Car bearing Registration No.TN-38-BY-6778 and its Insurance Policy was valid, which covers the date of accident. To deny or discard the 28 MVC NO.4620/2014 SCCH-7 same, nothing is available on record on behalf of the Respondent No.1, as, though the notice was duly served to him, it was remained absent and hence, it is placed as exparte. There is no allegation leveled as against the driver of the offending Car in Ex.P.6 Charge Sheet that, at the time of accident, he was not having a valid and effective driving licence to drive the offending Car. The violation of the terms and conditions of the admitted Insurance Policy by the Respondent No.1 is not proved by the Respondent No.2. Under such circumstances, the Respondent No.1 being the R.C. Owner and the Respondent No.2 being the Insurer of the offending Car, are jointly and severally liable to pay the above said compensation and interest to the Petitioner. Since the Respondent No.2 is an insurer, it shall indemnify the Respondent No.1. In view of the above said reasons and findings on Issues, the principles enunciated in the decision cited by the Learned Counsel appearing for the Respondent No.2 are not applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
41. 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.
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The Petitioner is entitled for
compensation of Rupees 6,94,897/- 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.2.
The Respondent No.2 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, 80% shall be released in the name of Petitioner through account payee cheque, on proper identification.
Remaining 20% 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/-.
30 MVC NO.4620/2014SCCH-7 Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then, pronounced by me in the open Court on this, the 27th day of November, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. T. J. Leons
P.W.2 : Dr. Mahadev Kumar. P.
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 Spot Hand Sketch
Ex.P.5 : True copy of MVI Report
Ex.P.6 : True copy of Charge Sheet
Ex.P.7 : True copy of Wound Certificate
Ex.P.8 : True copy of Discharge Summary
Ex.P.9 : Letter dated 16.01.2015
Ex.P.10 : Letter dated 28.02.2015
Ex.P.11 : Notarised xerox copy of Driving Licence
relating to Leons T.J.
Ex.P.12 : Medical Bills (67 in nos.)
Ex.P.13 : Advance Receipt (5 in nos.)
Ex.P.14 : Medical Prescriptions (15 in nos.)
Ex.P.15 : Inpatient Record
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Ex.P.16 : Outpatient Record
Ex.P.17 : X-ray films (5 in nos.)
Ex.P.18 : CD relating to Ex.P.17 X-rays films
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.