Bangalore District Court
Chi.Dhananjaya vs Sri. Arjun on 23 May, 2016
BEFORE THE COURT OF SMALL CAUSES AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, AT BENGALURU
(SCCH-16)
PRESENT: SRI. SATISH J. BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
BENGALURU .
DATED THIS THE 23rd DAY OF MAY 2016.
MVC.No.6301/2013
PETITIONER: Chi.Dhananjaya, 13 years,
S/o Sri Venkatesh
R/at No 279, 3rd Cross,
Vijayanandanagara,
Nandini Layout,
Bengaluru -560 096.
Reptd by his father
& natural guardian
Sri. K. Venkatesh
S/o Sri. Kariyappa
(By Pleader Sri.Rangaswamaiah)
Vs.
RESPONDENT: 1. Sri. Arjun,
S/o Sri. Muniswamy,
No.789, 7th Main Road,
Ganesh Block, Mahalakshmi Layout,
Bengaluru 560086.
(By Pleader Sri. N.S Mallikarjuna)
2. ICICI Lombard General Insurance
Co. Ltd.
No. 89, SVR Complex,
Hosur Main Road, Near Ayyappa
Temple, Bengaluru.
Policy cover note No. 77698906
Valid from 22.2.2013 to 21.2.2014
issued at ICICI Lombard House, 414,
Veer Savarkar Marg, Near Siddi
SCCH-16 2 MVC.6301/2013
Vinayaka Temple, Prabhadevi,
Mumbai 400 025.
(By Pleader Sri.Y.P Venkatapathi)
-o0o-
JUDGMENT
The guardian of minor petitioner Dhananjaya has filed this claim petition under Section 166 of Motor Vehicles Act, 1989, claiming compensation on account of the grievous nature of the injuries sustained by the minor in the motor vehicle accident.
2. The brief facts of the petition averments are as under:
On 27.6.2013 at about 7.30 a.m. when the petitioner after distributing newspapers, was returning back to his house on his bicycle carefully and cautiously on the left side of the road near Police quarters, Kanteerava Studio Main Road, Nandini Layout, Bengaluru, at that time the driver of TATA 608 goods vehicle bearing Regn.No.KA-06-5004 drove the same in a rash & negligent manner and hit the bicycle of the petitioner from its back side and ran over the right shoulder of the petitioner. Immediately he was shifted to KC General Hospital, Malleshwaram, Bengaluru. The petitioner sustained fractures and other injuries. He was SCCH-16 3 MVC.6301/2013 discharged from the hospital on 8.7.2013 with advice for follow-up treatment.
3. It is stated that the petitioner was aged about 13 years and distributing news paper and earning Rs.5,000/- p.m. He is a student of 8th standard at St.Philomina High School, Shankaranagara, Bengaluru. Due to the impact of the said accident, petitioner was bed ridden and could not attend to the classes and lost the academic years. Due to the fracture sustained by him, there is permanent impairment and he can not stand for long time or walk for long distance.
4. The accident occurred due to rash and negligent driving of the TATA 608 goods vehicle bearing No. KA-06- 5004 as against whom, the Rajajinagar Traffic Police have registered case in their Crime No.55/2013 for the offences punishable under Sec.279, 337 and 338 of IPC. Hence, prayed to allow the petition.
5. In pursuance to the notice issued, respondents appeared before the Court. Respondent No.2 has filed its objections whereas, respondent No.1 has not filed objections.
6. The respondent No.2 has admitted having issued insurance policy in respect of Tata 608 goods vehicle bearing SCCH-16 4 MVC.6301/2013 No. KA 06 5004 and it was valid as on the date of accident. respondent No.2 has contended that its liability to pay compensation is subject to terms & conditions of the policy. The 2nd respondent has disputed the involvement of the said vehicle in the accident. It has further contended that the driver of the alleged vehicle had no valid an effective DL and there is no valid and effective permit and fitness certificate. The 2nd respondent denied the manner of the accident, injuries sustained by the petitioner, the age, occupation and income of the petitioner. Hence, on all these grounds, it has prayed to dismiss the petition with costs.
7. On the basis of the above pleadings, the following issues have been framed:
1. Whether the Petitioner proves that he met with a road traffic accident that occurred on 27.6.2013 at about 7.30 a.m. near new police quarters, Kanteerava Studio Main Road, Nandini Layout, Bengaluru and the Petitioner sustained injuries due to rash and negligent driving of TATA 608 goods vehicle bearing No. KA-06-
5004?
2. Whether the Petitioner is entitled to compensation? If so, how much and from whom?
3. What order?
SCCH-16 5 MVC.6301/2013
8. The father of the minor petitioner was examined as PW.1 and got marked documents at Ex.P.1 to P.12. The doctor who treated the petitioner was examined as PW.2 and got marked documents at Ex.P.13 & P.15. The respondents have not led any evidence.
9. I have heard the arguments and perused materials on record.
10. By considering the evidence on record and because of my below discussed reasons, I answer the above Issues as below:
Issue No.1: In the Affirmative
Issue No.2 Partly in the Affirmative
Issue No.3: As per Final Order for the following
reasons:
REASONS
11. ISSUE NO.1: The petitioner has come up with
the specific case that on the above said date and time, due to rash & negligent driving by the driver of Tata 608 vehicle bearing No. KA 06 5004 he has sustained grievous injuries. Respondent No.2 has disputed the involvement of the above said vehicle in the accident. The guardian of the minor petitioner has been examined as PW.1, who has reiterated the petition averments by way of examination-in-chief. He SCCH-16 6 MVC.6301/2013 has deposed regarding the manner of the accident occurred, injuries sustained by the petitioner, treatment taken by him, expenses incurred towards treatment and also deformity suffered by him due to said injuries. He has also stated about registering FIR by the jurisdictional Police. He has produced FIR at Ex.P.1, complaint at Ex.P.2, charge sheet at Ex.P.3, wound certificate at Ex.P.4, discharge summary at Ex.P.5, school marks card at Ex.P.6, school certificate at Ex.P.7, notarized copy of election ID of PW.1 at Ex.P.8, Lab report at Ex.P.9, 10 medical bills at Ex.P.10, 54 bus tickets at Ex.P.11 and 6 x-rays at Ex.P.12.
12. On perusal of the cross-examination of PW.1, it is quite clear that he is not an eye-witness to the accident and he came to know about the accident around 7.30 to 8 a.m. on the date of accident. He came to know that Tata 608 vehicle caused the accident. Suggestion put to PW.1 that the accident was due to negligence of the petitioner when he was riding the bicycle on the middle of the road was denied. On perusal of the entire cross-examination of PW.1, it is quite clear that he is not an eye-witness to the accident and he came to know about the accident by a neighbour. The relative of the petitioner by name Mohan.D.S., has lodged the complaint as per Ex.P.2 stating that on 27.6.2013 when SCCH-16 7 MVC.6301/2013 the petitioner was returning to home after distributing the newspaper, near Kanteerava Studio, at that time, one Tata 608 goods vehicle bearing No. KA 06 5004 came in a rash & negligent manner and hit the bicycle of the petitioner from behind because of which, the accident occurred. The complaint further reveals that the rear wheel of the said vehicle ran over the right shoulder of the petitioner because of which he has sustained fracture injuries. On the basis of the complaint, FIR at Ex.P.1 came to be registered by Rajajinagara Traffic Police in Cr.No.55/2013 for the offences punishable under Sec.279, 337 IPC. The wound certificate which is marked at Ex.P.4 reveals that the petitioner has sustained abrasion on his face, right side chest. Abrasion, swelling deformity of knee, deformity in movement of left hip joint, deep lacerated wound measuring 10 x 7 c.m. on cuboid including lower half of upper arm and upper half of fore arm on anterior and lateral aspect exposing muscle, tendons, radial nerves. Jurisdictional Police after holding enquiry have filed charge sheet against the driver of the offending vehicle bearing No.KA 06 5004 for the aforesaid offences.
13. PW.1 is not an eye-witness to the accident and he can not depose in the manner in which the accident SCCH-16 8 MVC.6301/2013 occurred. The complaint reveals that the accident was due to rash & negligent driving by the driver of the vehicle bearing No.KA-06-5004. Moreover, respondent No.1 who is the owner of the said vehicle has not appeared before the court in spite of service of notice. The insurance company has not examined the driver of the said vehicle in order to prove that the accident was due to negligence on the part of the petitioner himself since, said driver is the proper person to explain the circumstance in which the accident took place. Moreover, the charge sheet was filed against the said driver and said charge sheet was not challenged by him. In the case when minor is involved, negligence need be strictly proved. In this regard it is useful to refer decision reported in ILR 2000 KAR 2792 (Kumari Sneha vs National Ins.Co.Ltd., and another) wherein it is held that in a case of accidents involving minor children, question of "negligence" need not be strictly proved-Also the decision reported in Sunder Shetty vs Sanjeeva Rao and others 1982 ACJ 129 followed.
14. Learned counsel for respondent No.2 has argued that as per the wound certificate, the name of the driver is Ramu whereas, in the charge sheet the name of driver is different i.e., one Manohar. It has to be noted that while SCCH-16 9 MVC.6301/2013 deciding the petition under Sec.166 of MV Act, the involvement of the vehicle is very important, whether even if there is a different name of driver of the offending vehicle, it will not make much difference. With the help of above said Police records, the petitioner has proved that the above said vehicle was involved in the accident. Moreover, in the wound certificate, which is marked at Ex.P.4 the registration number of the vehicle is clearly stated as KA-06-5004. Hence, merely because there is a different name of the driver of the offending vehicle, it cannot be held that the above said vehicle was not involved in the accident. Hence, without any hesitation, this Tribunal can safely come to the conclusion that the accident was due to the rash and negligent driving of Tata 608 goods vehicle bearing No.KA-06-5004 by its driver and the petitioner sustained injuries in the said accident. Accordingly, I answer Issue No.1 in the Affirmative.
15. ISSUE No.2: This issue is in respect of the quantum of compensation and in respect of the liability. The Wound Certificate & discharge summary of petitioner which are marked at Ex.P.4 & P.5 reveals that, the petitioner has sustained anterior dislocation of left hip joint and extensive soft tissue injury right forearm and elbow. Further the case sheet marked at Ex.P.14 reveals that the petitioner SCCH-16 10 MVC.6301/2013 has sustained extensive lacerated injury extending from proximal 1/3rd fore arm, cubital fossa and lower third arm, exposing lateral common extensors rupture, biceps injury with radial nerve exposed and abrasions on the face, chest and knee. Further, the evidence of PW.2 reveals that the petitioner has sustained anterior dislocation of left hip joint and extensive soft tissue injury extending from proximal 1/3 of forearm on lateral aspect measuring around 12 cm. upto distal 1/3rd humerus. The petitioner's discharge summary marked at Ex.P.5 reveals that he was treated as inpatient in K.C.General Hospital, Malleshwaram, Bengaluru from 27.6.2013 till 8.7.2013 during which period, he was treated conservatively and discharged with advice for follow-up treatment.
16. Dr.Kabilar Mannan, Orthopaedic Surgeon of K.C.General Hospital who was examined as PW.2 has also stated regarding the nature of above said injuries sustained by the petitioner. Ex.P.14 the casesheet also reveals that the petitioner has sustained above said injuries and was treated conservatively. Hence, looking to the above said injuries and the period which the petitioner was under
treatment, this Tribunal is of the opinion that, the petitioner SCCH-16 11 MVC.6301/2013 is entitled for compensation of Rs.25,000/- under the head pain and sufferings.
17. The petitioner's discharge summary marked at Ex.P.5 reveals that he was an inpatient at K.C.General Hospital from 27.6.2013 to 8.7.2013. He was discharged with advice for follow-up treatment and produced the OPD record at Ex.P.13. He was an inpatient nearly for 11 days in the hospital and during the course of treatment, petitioner has incurred expenses towards conveyance, attendant charges and nutritious food. The petitioner has produced the bus tickets amounting to Rs.536/-. Even these tickets have not been disputed by the other side. Hence, I feel it is just and proper to award a sum of Rs.7,000/- to the petitioner towards attendant charges, nutritious food and conveyance charges.
18. The Petitioner has produced 12 Medical Bills as per Ex.P.10 worth Rs.3,040/-. Again, these medical bills have not been disputed by the Respondent No.2. I have meticulously gone through medical bills. The total medical bills amounting to Rs.3,040/- for which the petitioner is entitled for and the said medical bills are rounded off to SCCH-16 12 MVC.6301/2013 Rs.3,100/- and the same is awarded under the head medical expenses.
19. The petitioner was treated as an inpatient in the aforesaid hospitals for 11 days. He was a student at the time of accident. He has been looked after by his parents or the attendant. Petitioner's parents were to finance for the treatment of the petitioner during the said inpatient period, along with that, they had lost their income. In this case, there is no evidence with regard to avocation and income of the parents of the petitioner. However, having regard to the fact that petitioner was an inpatient for more than fifty days in the above hospitals, a sum of Rs.18,000/- is awarded under the head loss of income during the laid up period.
20. The PW.2, the doctor who treated the petitioner has stated that, the Petitioner has sustained anterior dislocation of left hip joint and extensive soft tissue injury extending from proximal 1/3 of forearm on lateral aspect measuring around 12 cm. upto distal 1/3rd humerus. In the opinion of the doctor, the petitioner has suffered total whole body disability at 7% and disability of 21.5% of left lower limb. PW.2 has stated that he has personally treated the petitioner and the dislocation is now reduced. In the cross- SCCH-16 13 MVC.6301/2013 examination he has stated that the petitioner is aged about 15 years and the dislocation will come down. Hence, considering all these facts, the whole body disability assessed by PW.2 at 7% appears to be on higher side. Therefore, this Tribunal feels to take the whole body disability of the petitioner at 5%. In case of a minor who sustained fractures, it is useful to refer the decision reported in 2013 ACJ 2445 of Hon'ble Supreme Court in the case of Mallikarjun vs. Divisional Manager, National Insurance Co.Ltd., & anr. In this case, Hon'ble Apex Court while dealing with the case of assessment of compensation in case of children suffering disability laid down a guideline and held that, if the disability is above 10% and upto 30% to the whole body, Rs.3,00,000/-; upto 60%, Rs.4,00,000/-; upto 90%, Rs.5,00,000/- and for permanent disability upto 10%, it should be Rs.1,00,000/-, unless there are exceptional circumstances to take a different yardstick. Hence, as per the above said ruling, as the petitioner has suffered disability at 5% to the whole body, he is entitled for compensation of Rs.1,00,000/- under the head loss of income due to disability.
21. The petitioner was aged about 13 years when the accident took place. He has to suffer with the injuries, pain SCCH-16 14 MVC.6301/2013 and suffering through out his life. He can not enjoy his life as prior to the date of accident and has suffered loss of amenities in future life. Therefore, considering the age, nature of injuries sustained by the petitioner and percentage of disability, this Tribunal is of the opinion that, the petitioner is entitled for compensation of Rs.10,000/- towards loss of amenities and future happiness.
22. So the petitioner is entitled for the compensation under these following heads:-
1 Pain and sufferings Rs. 25,000/-
2 Conveyance, attendant and Rs. 7,000/- nutritious charges 3 Medical expenses Rs. 3,100/-
4 Loss of income during laid up Rs. 18,000/- period 5 Loss of income due to permanent Rs. 1,00,000/- disability 6 Loss of future amenities and Rs. 10,000/-
enjoyment Total Rs. 1,63,100/-
In total, the Petitioner is entitled for the compensation of Rs.1,63,100/-.
Interest:
23. Relying upon a judgment of the Apex Court reported in 2013 AIR SCW 5375 (Minu Rout and others Vs. Satya Pradyumna Mohapatra and others), with regard to SCCH-16 15 MVC.6301/2013 interest at the rate of 9% p.a. on the compensation amount, in para 13 of the judgment, the Apex Court held that Insurance Company is also liable to pay interest at the rate of 9% p.a. from the date of application till the date of payment and also by following the principles laid down in (2011) 4 SCC 481 : (AIR 2012 SC 100) (Municipal Council of Delhi Vs. Association of Victims of Uphaar Tragedy). In view of the above judgments with regard to the rate of interest, and also it is settled law that while awarding interest on the compensation amount, the Court has to take into account the rate of interest of the nationalized bank and the rate of interest at 9% cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a. Liability:
24. The Respondent No.2 has admitted the policy issued in respect of the offending vehicle and as on the date of the accident the policy was in force. The Respondent No.1 being the owner and Respondent No.2 being the insurer of the offending Lorry bearing Reg.No.KA-06-5004 are jointly and severally liable to pay compensation. However, primary SCCH-16 16 MVC.6301/2013 liability is on the Respondent No.2 to pay the compensation. Accordingly, Issue No.2 is answered partly in the affirmative. ISSUE No.3:-
25. In view of my above findings, the petition deserves to be partly allowed. Hence, I proceed to pass the following order:
ORDER The petition filed by the Petitioner is allowed in part.
The Petitioner is entitled for compensation of Rs. 1,63,100/- (Rs. one lakh sixty-three thousand one hundred Only) with interest at the rate of 9% p.a. from the date of petition till the date of deposit in court.
The Respondents No.1 and 2 are jointly and severally liable to pay the award amount. However, the primary liability to pay the compensation amount is fixed on the Respondent No.2. Respondent No.2 is directed to pay the compensation amount within two months from the date of this order.SCCH-16 17 MVC.6301/2013
Out of the said compensation amount awarded, 40% of the amount with proportionate interest shall be deposited in the name of the minor Petitioner as FD in any nationalized bank till he attains majority (without any encumbrance or premature withdrawal) with liberty to draw the accrued interest periodically and the remaining 60% amount with proportionate interest shall be released to the guardian of minor petitioner through A/c payee cheque on proper identification and verification.
Advocate's fee is fixed at Rs.1,000/-. Draw an award accordingly.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court this the 23rd May, 2016) (SATISH.J.BALI) MEMBER:MACT, BENGALURU .
ANNEXURE Witnesses examined on behalf of Petitioner:
PW-1 : K. Venkatesh
PW-2 : Dr. Kabilar Mannan
Documents marked on behalf of Petitioner:
Ex.P.1 : Copy of FIR
Ex.P.2 : Copy of Statement
Ex.P.3 : Copy of Charge sheet
SCCH-16 18 MVC.6301/2013
Ex.P.4 : Copy of Wound certificate
Ex.P.5 : Copy of Discharge Summary
Ex.P.6 : Copy of School Marks card
Ex.P.7 : Copy of School Certificate
Ex.P.8 : NC of Election ID card (marked
after comparing with the
original)
Ex.P.9 : Lab report
Ex.P10 : 12 Medical Bills
Ex.P.11 : 54 Bus ticket
Ex.P.12 : 6 X-rays
Ex.P.13 : Out patient record
Ex.P.14 : Case Sheet
Ex.P.15 : 6 X-rays
Witnesses examined on behalf of Respondents:
-NIL-
Documents marked on behalf of the Respondents:
-NIL-
(SATISH.J.BALI) MEMBER:MACT, BENGALURU .