Bangalore District Court
) Smt.Shobha S vs The Regional Manager on 21 October, 2015
1 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
BEFORE THE MEMBER PRL.MOTOR ACCIDENT CLAIMS
TRIBUNAL AT BANGALORE
(S.C.C.H. - 1)
DATED THIS THE 21st DAY OF OCTOBER'2015
PRESENT : SRI H.P.SANDESH, B.A.L., LL.B,
MEMBER, PRL. M.A.C.T.
M.V.C Nos.2705/2014
C/w. MVC No.2706, 2707, 2708, 2709, 2710, 3009 and 3010/2014
Petitioners 1) SMT.SHOBHA S.,
(In M.V.C. W/o.Late N.S.Baburao,
No.2705/2014) Aged about 32 years,
2) MASTER N.B.PRATHAM,
S/o.Late N.B.Baburao,
Aged about 5 years,
3) SMT.VYJAYANTHI BAI,
W/o.Subbarao M.,
Aged about 54 years,
4) MR.SUBBARAO M.,
S/o.Dowlath Rao,
Aged about 63 years,
All are residing at No.7/54,
New No.3/1, 3rd Cross, 6th Block,
Rajajinagar, Banglaore-10.
(Since petitioner No.2 is a minor,
hence, represented by minor and
natural guardian mother
Smt.Shobha S.,)
Petitioner MASTER.N.B.PRATHAM
( in M.V.C. S/o. Late.Baburao,
No.2706/2014) Aged about 5 years,
Residing at No.7/54,
New No.3/1, 3rd Cross,
2 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
6th Block, Rajajinagar,
Bangalore - 10.
The petitioner being minor, hence,
represented by mother and natural
guardian Smt.Shobha S.
Petitioner MR. SURENDRAN S.
( in M.V.C. S/o. Late. Samrao
No.2707/2014) Aged about 58 years
Residing at No.357, 4th Cross,
Akashvani Layout,
Dasarahalli, Hebbal Post,
Bangalore.
Petitioner SMT. VASANTHI BAI S.
( in M.V.C. W/o. Surendran S.
No.2708/2014) Aged about 53 years
Residing at No.357, 4th Cross,
Akashvani Layout,
Dasarahalli, Hebbal Post,
Bangalore.
Petitioner MR. VISHWANATH D.
( in M.V.C. S/o. Late. Dhananjaya
No.2709/2014) Aged about 35 years
Residing at No.357, 4th Cross,
Akashvani Layout,
Dasarahalli, Hebbal Post,
Bangalore.
Petitioner SMT. DEEPA VISHWANATH S.
( in M.V.C. W/o.Vishwanath
No.2710/2014) Aged about 29 years
Residing at No.357, 4th Cross,
Akashvani Layout, Dasarahalli,
Hebbal Post, Bangalore.
3 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
Petitioner SMT. ANITHA BAI S.
( in M.V.C. W/o. Suresh V.
No.3009/2014) Aged about 36 years
Residing at No.357, 4th Cross,
Akashvani Layout, Dasarahalli,
Hebbal Post, Bangalore.
Petitioner MISS. LISHA
( in M.V.C. D/o. Suresh V.
No.3010/2014) Aged about 12 years
Residing at No.57,
6th Cross, Chowdeshwari Layout,
Dasarahalli, Hebbal Post,
Bangalore.
The Petitioner being minor, hence,
represented by mother and natural
guardian, Smt. Anitha Bai S.
(By Smt.Ambika M., Advocate in all
the cases)
-Vs-
Respondents: 1. The Regional Manager
(in all the eight The Oriental Insurance Co. Ltd.,
cases) T.P.Hub, No.44/45,
Leo Shopping Complex,
Residency Road,
Bangalore - 560 025.
Policy No.471192/31/2014/603
Valid from 05.07.2013 to
04.07.2014
2. MRS. SHAHEEN BEGUM
W/o. Mohamad Shafi
Shaikh Manzil, Nehru Nagar,
Hubli Road, Sirsi.
(Respondent No.1 - by Sri
4 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
R.Purushothama, Advocate in all the
cases
Respondent No.2 Exparte)
COMMON JUDGMENT
MVC No.2705/2014 is filed by the petitioners claiming compensation
of Rs.20 lakhs for the death of N.S.Baburao and MVC Nos.2706/2014 has
been filed by the petitioner minor N.B.Pratham, represented by his mother
and natural guardian claiming compensation of Rs.5 lakhs and MVC
Nos.2707/2014 to 2710/2014 and 3009/2014 and 3010/2014 have been filed
by the respective petitioner's claiming compensation of Rs.15 each for the
injuries suffered by them, in the account that occurred on 17.04.2014 at
about 05.30 am., on Dharwad-Hubli Bypass Road near Yarikoppa Village,
Dharwad.
2. Since all these petitions are arising out of the same accident and
therefore, they are clubbed together and disposed of by this common
judgment.
3. It is the case of the petitioners in all the cases that, they along with
the deceased N.S.Baburao in MVC No.2705/2014, left Bangalore on
16.04.2014, at about 10.30 pm., in Toyota Innova vehicle bearing
registration No.KA.03/MJ.5797. The said vehicle was driven by the
5 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
petitioner in MVC No.2709/2014 D.Vishwanath. When their vehicle came
near Yarikoppa Village on Dharwad-Hubli Bypass Road, Dharwad at about
05.30 am., on 17.04.2014, a goods truck bearing registration
No.KA.19/A.1830 driven by its driver in a rash and negligent manner and in
high speed endangering human life and safety of others and having come
from opposite side and having come to the wrong side of the road, dashed
against their car and due to the impact, all of them suffered grievous injuries
and immediately they were shifted to SDM Hospital, Dharwad.
4. In MVC No.2705/2010, the petitioners contended that in the
accident, N.S.Baburao had sustained grievous injuries and hence, was
admitted to SDM Medical College and Hospital, Dharwad on 17.04.2010
and he was treated there till 21.04.2014, but inspite of best available
treatment administered to him, he succumbed to the injuries on 21.04.2014.
5. It is contended that the deceased N.S.Baburao and was aged 35
years and was working as Personal Trainer at Talwarkars Gym, Bengaluru
and earning Rs.20,000/- per month and on account of his untimely death,
petitioner No.1 suffered loss of company and the petitioner 2 has suffered
loss of love and affection of his father and petitioners No.3 and 4, being the
parents of the deceased, have lost their son at their advanced age and
suffered loss of dependency. Hence, they claim compensation of Rs.20
6 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
lakhs from the respondents, the insurer and owner of the lorry, which caused
the accident.
6. In MVC No.2706/2014, it is contended that the injured is a minor
boy, aged 5 years and in the accident, he suffered fracture injuries and his
mother had to incur huge expenditure and inspite of best available treatment,
he has suffered disability and hence, he has claimed compensation of Rs.5
lakhs from the respondents, the insurer and the owner of the lorry, which
caused the accident.
7. In MVC No.2707/2014, it is contended that in the accident, he has
suffered grievous injuries and he was treated at SDM Hospital, Dharwad and
had to incur huge expenditure and inspite of best available treatment, he has
suffered disability and hence, he has claimed compensation of Rs.15 lakhs
from the respondents, the insurer and owner of the lorry, which caused the
accident.
8. In MVC No.2708/2014, it is contended that in the accident, she has
suffered grievous injuries and she was treated at SDM Hospital, Dharwad
and she had to incur huge expenditure and inspite of best available
treatment, she has suffered disability and hence, she has claimed
7 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
compensation of Rs.15 lakhs from the respondents, the insurer and owner of
the lorry, which caused the accident.
9. In MVC No.2709/2014, it is contended that in the accident, he has
suffered grievous injuries and he was treated at SDM Hospital, Dharwad and
he had to incur huge expenditure and inspite of best available treatment, he
has suffered disability and hence, he has claimed compensation of Rs.15
lakhs from the respondents, the insurer and owner of the lorry, which caused
the accident.
10. In MVC No.2710/2014, it is contended that in the accident, she
has suffered grievous injuries and she was treated at SDM Hospital,
Dharwad and she had to incur huge expenditure and inspite of best available
treatment, she has suffered disability and hence, she has claimed
compensation of Rs.15 lakhs from the respondents, the insurer and owner of
the lorry, which caused the accident.
11. In MVC No.3009/2014, it is contended that in the accident, she
has suffered grievous injuries and she was treated at SDM Hospital,
Dharwad and she had to incur huge expenditure and inspite of best available
treatment, she has suffered disability and hence, she has claimed
8 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
compensation of Rs.15 lakhs from the respondents, the insurer and owner of
the lorry, which caused the accident.
12. In MVC No.3010/2014, it is contended that the injured is a minor
girl, aged 12 years and in the accident, she suffered fracture injuries and her
parents had to incur huge expenditure and inspite of best available treatment,
she has suffered disability and hence, she has claimed compensation of
Rs.15 lakhs from the respondents, the insurer and the owner of the lorry,
which caused the accident.
13. It is the further case of the petitioners in all these petitions that the
accident occurred purely on account of rash and negligent driving of the
goods lorry No.KA.19/A.1830 by its driver and hence, the jurisdictional
police have filed charge sheet against the driver of the said vehicle after
investigation. Hence, they have claimed compensation as stated above.
14. Pursuant to filing of these petitions, the Tribunal has issued notice
to the respondents, in response to the same, the respondent No.2 remained
exparte, whereas, the respondent No.1, the Insurer of the Lorry appeared
before the Tribunal and filed statement of objections, in all the petitions.
15. The sum and substance of the objections filed by the respondent
No.2 in all these petitions, is as follows:-
9 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
16. The respondent No.1 has contended that all the petitions are not
maintainable either in law or on facts and hence liable to be dismissed in
limine.
17. It is contended that the 1st respondent has issued Policy
No.471192/31/2014/603 in favour of the goods lorry No.KA.19/A.1830 and
the liability/obligation, if any, of the respondent No.1, is subject to terms and
conditions, exceptions and endorsements, compliance of Insurance Act and
the law governing thereto.
18. It is contended that the accident might have occurred due to the
negligence on the part of the driver of the Innova Car. It is contended that
the accident spot is a double road, 100 feet width with divider. The driver of
the car crossed the divider of the road and has then hit the lorry and caused
the accident and as such, there is no negligence on the part of the driver of
the lorry. It is further contended that the driver of the car did not possess
valid and effective driving licence and the driver of the car has contributed
in occurrence of the accident as he was felling sleepy.
19. The respondent No.1 has denied the averments of petition column
No.1 to 6, contending that they are not within the knowledge of respondent
No.1 and hence, called upon the petitioners to prove their age, avocation,
10 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
income of the deceased as well as the injured petitioners. It is contended
that no such accident has occurred on the alleged date and time due to the
negligence of the driver of the truck and all the records are created with the
help of the Police and doctor in order to claim compensation. It is further
contended that the allegations as made in column No.10 to 14 of the
petitioner are not within the knowledge of this respondent.
20. The allegation in para 22 that on 17.04.2014 at about 5.30 am., the
deceased and the injured petitioners were traveling in Innova Car
No.KA.03/MJ.5797 along with their family members on Hubli-Dharwad
Bypass Road near Yarikoppa Village, Dharwad and at that time, the driver
of the goods tuck No.KA.19/A.1830 drove his vehicle at a very high speed
in rash and negligent manner so as to endanger human life and safety of
others and dashed against the Innova Car No.KA.03/MH.5797 coming from
opposite direction, has been denied by the respondent No.1 as false and
fictitious. It is further denied that in the accident all of them suffered
injuries and out of them, N.S.Baburao, succumbed to the same on
21.04.2014 while undergoing treatment at SDM Hospital, Dharwad.
21. It is contended that the insured has not complied with the
provisions of Section 134(c) and Section 158(6) of the MV Act. Further, it
11 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
is contended that the driver of the lorry had no valid and effective driving
licence.
22. The amount of compensation claimed by the petitioners in all
these petitions is stated to be highly excessive and has no rationale. Hence,
for all these reasons, the respondent No.1 has prayed the Tribunal to dismiss
all the petitions.
23. The above pleadings gave rise to framing of the following
issues :-
In MVC No.2705/2010
1) Whether the petitioners prove that the deceased succumbed to
injuries in a motor vehicle accident that occurred on 17.04.2014 at
about 05.30 am., at Hubli-Dharwad Bypass Road near Yarikoppa
Village, Dharwad within the jurisdiction of Dharwad Rural Police
Station on account of rash and negligent driving of the goods truck
bearing registration No.KA.19/A.1830 by its driver?
2) Whether the respondent No.1 proves that the accident occurred on
account of negligent act of the driver of the Innova Car
No.Ka.03/MJ.5797?
3) Whether the petitioners are entitled for compensation? If so, how
much and from whom?
4) What order?
Common in MVC No.2706/2014 to 2710/2014, 3009/2014 & 3010/2014:
1) Whether the petitioner proves that he/she sustained grievous
injuries in a Motor Vehicle Accident that occurred on 17.04.2014
at about 05.30 am., at Hubli-Dharwad Bypass Road near
Yarikoppa Village, Dharwad within the jurisdiction of Dharwad
12 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
Rural Police Station on account of rash and negligent driving of
the Goods Truck bearing registration No.KA.19/A.1830 by its
driver?
2) Whether the respondent No.1 proves that the accident occurred on
account of negligence of the driver of the car No.KA.03/MJ.5797?
3) Whether the petitioners are entitled for compensation? If so how
much and from whom?
4) What order?
24. After framing of the issues, the petitioners in order to prove their
case, examined the first petitioner in MVC No.2705/2014, who has also
been examined as PW 1 in MVC N.2706/2014 since the petitioner therein is
a minor. Petitioner in MVC No.2707/2014 has been examined as PW 2,
petitioner in MVC No.2708/2014 has been examined as PW 3, the petitioner
in MVC No.2709/2014 has been examined as PW 4, petitioner in MVC
No.2710/2014 has been examined as PW 5, the petitioner in MVC
No.3009/2014 has been examined as PW 6 for her self and also on behalf of
her minor daughter Lisha in MVC No.3010/2014. The petitioners have also
examined 5 more witnesses as PW 7 to 11. As many as 87 documents came
to be marked on behalf of the petitioners as Ex.P.1 to P.87.
25. On behalf of the respondent No.1, Smt.Anushree, working as
Asst.Manager in the office of the respondent No.1 has been examined as
13 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
RW 1 and through her evidence, 3 documents came to be marked as Ex.R.1
to R.3.
26. Heard the arguments of the petitioners' counsel and also that of
the counsel for respondent No.1.
27. The counsel for the respondent No.1 has relied on the following
citation:-
1) 2015 AAC 2332 (KAR)
28. I have gone through the principles laid down in the above
judgments and the principles laid down in these judgments will be taken into
consideration while assign the compensation.
29. My common findings on the above issues are as under:-
1) Partly in the affirmative,
2) Partly in the affirmative,
3) Partly in the affirmative,
4) As per final order, for the following:-
REASONS
30. Issue No.1 and 2 in all the cases:- Since all these claim petitions
are arising out of the same accident and since issue No.1 and 2 in all these
petitions are regarding the negligence of the drivers of the vehicles, they are
taken up together for discussion.
14 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
31. It is the common case of the petitioners in all the petitions that the
accident occurred and the resultant injuries caused to the petitioners in MVC
No.2706/2014 to 2710/2014 and 3009/2014 and 3010/2014 and also the
death of N.S.Baburao in MVC No.2705/2014 are due to rash and negligent
driving of the goods lorry bearing No.KA.19/A.1830 by its driver. They
have contended in their respective petition that on 17.04.2014, all of them
along with the deceased N.S.Baburao were traveling in Toyota Innova car
No.KA.03/MJ.5797 driven by the petitioner in MVC No.2709/2014 from
Bengaluru to Shirdi. When the vehicle reached near Yarikoppa Village on
Hubli-Dharwad Bypass, Dharwad, at about 05.30 am., a lorry bearing
No.KA.19/A.1830 came in rash and negligent manner from opposite
direction and after having come to the other side of the road, dashed against
their car, as a result, all of them suffered grievous injuries and after the
accident, they were admitted and treated at SDM Hospital, Dharward, but
N.S.Baburao, inspite of treatment succumbed to the same on 21.04.2014.
32. The respondent No.1 has contended that the accident has occurred
on account of the negligent act of the driver of the Toyota Innova Car, since
he having crossed the middle lane, came to other side of the road and caused
the accident.
15 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
33. In order to substantiate their case, the petitioners have examined
the petitioner No.1 in MVC No.2705/2014, who is also the mother and
natural guardian of minor petitioner in MVC No.2706/2014 as PW 1. Even
the petitioners in other cases also have been examined as PW 2 to 6 and as
many as 87 documents came to be marked on behalf of the petitioners as
Ex.P.1 to P.87.
34. Evidence of PW 1 to 6 assumes importance since all of them were
traveling in the car and especially the evidence of PW 4 Vishwanath,
assumes much importance, since he was driving the car at the time of
accident.
35. Chief examination of PW 1 to 6 is identical to each other, wherein,
they attributed negligence to the driver of the lorry in occurrence of the
accident. Even the cross-examination of PW 1 to 6, so far as accident is
concerned is also identical. PW 1, in her chief examination, got marked
FIR, IMV Report and Charge Sheet as Ex.P.1, 2 and 4.
36. Since PW 4 was driving the Innova Car, I deem it just and proper
to discuss the cross-examination of PW 4 only. In his cross-examination,
PW 4 admits that they have left Bangalore at 10.30 pm and he has picked up
all at Dasarahalli. He admits that 10.30 pm., there will be traffic at
Bangalore. He further admits that to leave Bangalore, it will take 45
16 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
minutes. He further admits that the distance from Bangalore to the place of
accident is around 700 kms. He further admits that in a normal speed, it is
difficult to reach 700 kms., in 6 hours. He admits that the vehicle belongs to
the friend of his brother and it was not for hire purpose. It is suggested to
him that the vehicle was taken for hire purpose and the said suggestion has
been denied by him. It is suggested to him that colluding with the Police, a
false complaint is filed and the documents are created and the said
suggestion has been denied by him. It is elicited from him that the width of
the road is around 30 feet and he saw the offending vehicle at a distance of
15 feet. It is suggested to him that if he had taken the vehicle towards the
left side, he could have avoided the accident and the said suggestion has
been denied by him. He says that he does not know the report given by the
IMV Inspector with regard to the damages of both the vehicles. He further
says that he did not see their vehicle after the accident about the damages. It
is suggested to him that the entire front portion was damaged and the said
suggestion has been denied by him. It is suggested to him that he was sleepy
and hence, he went and dashed against the truck and the said suggestion has
been denied by him.
17 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
37. Though the respondent No.1 has contended that the accident
occurred on account of the negligence of the driver of the Innova Car, has
not examined the driver of the lorry.
38. The counsel for the respondent No.1 is his arguments, vehemently
contended that as per the admission made by PW 1 to 6, they left Bangalore
at 10.30 pm., and reached the place of accident, which is about 700 kms.,
from Bangalore at 5.30 am., that means they have covered 700 kms., in 7
hours. Further it is contended that the width of the road at the place of
accident is 33 feet and the accident occurred within the left half portion of
the direction of the lorry, which shows that the car came to other side of the
road, since the driver was sleepy. In support of his contention, the counsel
for the respondent No.1 has relied upon a decision reported in 2015 AAC
2332 (KAR) ( Branch Manager, Oriental Insurance Co., Ltd., Vs. Vidya)
wherein it is held as under:
"(A) Motor Vehicles Act (S.59 of 1988), S.166 - Negligence - Proof -
Head on collision between bus and tempo due to which inmates of bus and
tempo sustained grievous injuries - Evidence showing that accident
occurred in middle of road, sufficient to hold that both drivers have equally
contributed towards said accident - Finding recorded by Tribunal that
accident and resulting injuries sustained by claimants were due to rash and
negligent driving of driver of both vehicles in equal proportion, proper".
39. As against the same, the counsel for the petitioners contended that
the Police after investigation filed charge sheet against the driver of the lorry
18 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
as per Ex.P.4, which has not been challenged either by the driver of the lorry
or by the Insurance Company. Moreover, the driver of the lorry has not
been examined to elicit the negligence on the part of the driver of the car. If
there was any negligence on the part of the driver of the car, then certainly,
the driver of the lorry would have come forward to depose before the court.
The fact that the driver of the lorry did not come forward to depose before
the Court, itself goes to show that the accident occurred on account of the
negligence of the driver of the lorry.
40. Now, let me appreciate both oral and documentary evidence
available before the Court so as to arrive at a conclusion as to at whose fault,
the accident occurred.
41. It is not in dispute that the accident occurred at 05.30 am., ie., in
the wee hours of 17.04.2014. It is unequivocally admitted by PW 1 to 6 they
left Bangalore at 10.30 pm., and reached the place of accident at 05.30 am.,
which is at a distance of 700 kms., in 7 hours. It is important to note here
that the respondent No.1 has contended that the car driver came to the other
side of the road as he was sleepy, due to continuous driving and therefore,
the petitioners though produced the FIR IMV Report and the Charge Sheet,
have intentionally not produced the Spot Mahazar or the Spot and the
respondent No.1 has produced the Spot Sketch and Spot Mahazar marked as
19 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
Ex.R.2 and R.3 and on perusal of the these documents, the spot of the
accident is shown to be at the center of the road, which fact has not been
denied or disputed by the petitioners. Under these circumstances, it is
contended that the accident occurred on account of the negligence of the
driver of the car or in the alternative, it is contended that the accident has
occurred due to the contributory negligence of drivers of both the vehicles.
42. PW 4, the driver of the car, in his cross-examination, admitted that
the width of the road is about 30 feet. Even in Ex.R.2 the Sketch of the Spot
of accident produced by respondent No.1, the width of the road is shown as
33 feet and the spot of collision between the two vehicles is shown at the
center of the road. This document ie., Ex.R.2 Sketch and Ex.R.3 Spot
Mahazar drawn by the Police during the course of investigation has not been
disputed or denied by the petitioners.
43. In the judgment relied upon by the counsel for the respondent
No.1, the High Court held that the "Evidence showing that accident
occurred in middle of road, sufficient to hold that both drivers have equally
contributed towards said accident - Finding recorded by Tribunal that
accident and resulting injuries sustained by claimants were due to rash and
negligent driving of driver of both vehicles in equal proportion, proper".
But, in this case, the accident though occurred at the middle of the road, but
20 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
it was not a head on collision. Both the vehicles have been damaged at the
front right portion as could be seen from the copy of the IMV Report
produced by the respondent No.1, which remained unmarked and there
being no contra evidence to disprove the same on the side of the petitioners,
I am of the opinion that the accident has occurred on account of the
contributory negligence of the drivers of both the vehicles in the proportion
of 75%:25% on the part of the driver of the lorry No.KA.19/A.1830 and the
driver of the Innova Car No.KA.03/MJ.5797 respectively. Accordingly, I
answer issue No.1 and 2 partly in the affirmative.
44. Issue No.3 in MVC No.2705/2014:- It is the case of the petitioners
that in the accident, N.S.Baburao has sustained grievous injuries and he was
shifted to SDM Hospital, Dharwad and he died while undergoing treatment
on 21.04.2014 and thereafter, the PM was conducted and then the petitioners
performed the funeral ceremony. In order to substantiate that N.S.Baburao
has succumbed to the injuries in the accident, the petitioners have produced
Ex.P.5 PM Report issued by SDM Hospital, Dharwad which reveals that the
death is due to head injury sustained. Apart from that, the petitioners have
produced Ex.P.6 Copy of the Ration Card. These documents coupled with
the answers elicited from the mouth of PW 1 make it clear that the petitioner
No.1 is the wife, petitioner No.2 is the son and petitioner Nos.2 and 3 are the
21 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
parents of the deceased and that he succumbed to the injuries which he
sustained in the accident as discussed above.
45. Now coming to the aspect of awarding of compensation, in a case of
death, in order to arrive at the compensation to be awarded to the petitioners,
the age, avocation, income of the deceased and the number of dependants
play vital role.
46. In the case on hand, it is pleaded by the petitioners, who are the wife,
son and parents of the deceased that the deceased was aged 35 years at the
time of accident and was a working as Personal Trainer in Talwarkars Gym,
Bengaluru and earning Rs.10,000/- per month. Even the petitioner No.1,
who has been examined as PW 1, has reiterated the averments of the
petition. But, so far as income of the deceased is concerned, she has stated
in her evidence that her husband was earning Rs.20,000/- per month by
working as Trainer in Talwarkars Gym. It is further contended that due to
the sudden death of her husband, they have been put to trauma through out
their life which cannot be compensated in terms of money.
47. In order to substantiate their case regarding the age, avocation and
income of the deceased, the petitioners have produced Ex.P.6 - Ration Card,
perusal of which reveals that the same was issued on 11.09.2012 and as on
22 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
that date, the age of the deceased was shown as 34 years and the accident
having occurred on 17.04.2014, it can be said that the deceased was running
36 years at the time of accident.
48. As far as avocation and income of the deceased is concerned, it is the
contention of the petitioners that the deceased was working as a Personal
Trainer in Talwarkars Gym and was earning Rs.10,000/- per month and to
substantiate the same, they have produced 4 Nos., Form 16A issued by
Talwarkars Better Value Fitness Limited, Mumbai. They pertain to the
months of April'2013, May'2013, June'2013 July'2013, August'2013,
September'2013, October'2013 and December'2013 and again for January,
February and March'2014. The income of the deceased shown in these
Form 16A is inconsistent, in as much as, for April'2013, it was Rs.21,155/-
and for August'2013, it was Rs.18,035, against it was Rs.12,139/- for
October'2013 and again Rs.6,000/- for the same month and for March'2014,
it was Rs.13,758/-. Ex.P.5 discloses the TDS made by the company. Apart
from the above, the petitioners have examined one Raj Kumar Jha, working
as Manager at Talwarkars Gym as PW 10 and in his evidence, PW 10
deposes that the deceased Baburao was a Professional Trainer working with
Talwarkars Better Value Fitness Limited and he was paid Rs.17,522/- for
January'2014, Rs.14,899/- for February'2014, Rs.12,382- for March'2014
23 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
and Rs.5,400/- for April'2014 and in his cross-examination, he says that the
company was paying the income tax and the payments are made through
cheques only. He admits that the deceased was not a permanent employee
and he is only a consultant and the deceased was being paid on hourly basis.
49. The wife of the deceased, who is petitioner No.1 and who has been
examined as PW 1, has been cross-examined by the counsel for the
respondent No.1, wherein she has stated that she has produced the document
to show that her husband was working. She further says that she was not
aware of whether he was filing income tax returns or not. She volunteers
that Ex.P.5 discloses the TDS made by the company. She further says that
she can produce the Salary Certificate of her husband, but she has not
produced the same. It is suggested to her that Ex.P.5 does not disclose the
salary details of her husband and the said suggestion has been denied by her.
It is suggested to her that her husband was not getting Rs.21,000/- every
month and that there is variation and the said suggestion has been denied by
her. It is suggested to her that her husband is not a permanent employee and
whenever he used to affix his attendance, then only he will get the salary and
the said suggestion has been denied by her. She says that her husband was
giving personal training. It is suggested to her that her husband was not
getting fixed salary and the said suggestion has been denied by her.
24 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
50. Now, let me appreciate the evidence of PW 1 regarding the
avocation and income of the deceased.
As per Ex.P.5 which are Form 16.A issued by the employer of the
deceased coupled with the evidence of PW 10 - the Manager, reveal that the
deceased was working as Trainer in Talwarkars Gym on hourly basis and
therefore, as discussed above, the salary drawn by him was inconsistent. But
the fact remains that having regard to the deduction of tax as shown in Form
16A as per Ex.P.5, there appears that the deceased was an earning person.
Considering the facts and circumstances of the case and the age of the
deceased as 36 years, I deem it just and proper to take the income of the
deceased, on an average, at Rs.12,000/- per month.
51. Even though in the judgment reported in 2013 ACJ 1403 (Rajesh Vs.
Rajbir Singh), the Apex Court held that even if a person is self employed,
loss of future prospects has to be taken into consideration, but in the case on
hand, the deceased was working as Consultant with Talwarkars Gym and he
was being paid on hourly basis and there was no certainty of job and hence,
the principle laid down in the above judgment regarding addition of loss of
future prospects does not arise at all.
52. Having regard to the fact that the deceased had a wife and a children
apart from parents, I deem it just and proper to deduct 1/4th towards the
25 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
personal expenses of the deceased, had he been alive. Under those
circumstances, the loss of dependency, after deducting 1/4th out of his
income, comes to Rs.9,000/- which is the loss of dependency per month and
annually it comes to Rs.1,08,000/- and if we multiply the same by 15
multiplier, the same works out to Rs.16,20,000/- to which the petitioners are
entitled to under the head loss of dependency.
53. Apart from that, the petitioners are also held to be entitled to
Rs.1,00,000/- under the head compensation to the family members (children
and family members other than wife) for loss of love and affection,
deprivation of protection, social security etc., Rs.50,000/- towards
compensation to the husband of the deceased for loss of love and affection,
loss of consortium and Rs.10,000/- towards cost incurred on account of
funeral and ritual expenses, as held in the recent judgment reported in AIR
2014 SUPREME COURT 706 (Puttamma Vs. Narayana Reddy).
54. The petitioners, not only in the petition, but also in the evidence of
PW 1, have pleaded that they spent substantial amount for treatment of
deceased prior to his death, since after the accident, the deceased was shifted
to SDM Hospital, Dharwad wherein he was admitted as inpatient and treated
till 21.04.2014 and inspite of administering the best available treatment, he
succumbed to the injuries on 21.04.2014 and to substantiate the said fact, the
26 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
petitioners have produced Ex.P.8, Medical bills issues by SDM Hospital,
Dharwad, which account in all for Rs.41,597/-. I have gone through these
bills and vouchers. The petitioners having spent the said amount for the
treatment of the deceased prior to his death, are entitled to the said amount.
55. Thus the petitioners are entitled to compensation as under:-
Sl.No. Heads of Compensation Amount of
Compensation
1. Loss of Dependency 16,20,000.00
2. Compensation to the family 1,00,000.00
members (children and family
members other than wife) for loss of
love and affection, deprivation of
protection, social security
3. Compensation to the widow of the 50,000.00
deceased for loss of love and
affection, pains and sufferings, loss
of consortium, deprivation of
protection , social security etc.
4. Cost incurred on account of funeral 10,000.00
and ritual expenses,
5. Medical expenses incurred by 41,597.00
petitioners prior to the death of
deceased
Total 18,21,597.00
Less:25% towards negligence of the 4,55,399.00
driver of car, in which deceased was
travelling
Balance : 13,66,197.00
27 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
56. Since petitioners are the wife, son and parents of the deceased
N.S.Baburao, the compensation amount is apportioned amongst them at the
ratio of is 50:20:15:15 out of the compensation amount.
Accordingly, I answer issue No.3 in MVC No.2705/2014 partly in the
affirmative.
57. Issue No.3 in MVC No.2706/2014:- Petitioner in this case is a
minor boy of 5 years and hence, he is represented by his mother and natural
guardian, who has been examined as PW 1 and in her evidence, PW 1 says
that in the accident, her son suffered injuries and immediately after the
accident, he was shifted to SDM Hospital, Dharwad wherein he was treated
as inpatient and they have spent morethan Rs.50,000/- for treatment and
inspite of treatment, his son became disabled. PW 1, in support of her
evidence, produced Ex.P.10 Wound Certificate issued by SDM Hospital,
Dharwad which reveals that the minor ward has suffered (1) Tenderness and
reduced movements of right shoulder joint and (2) Tenderness in upper 1/3rd
of right fore arm with pain in elbow and the injury No.(1) is stated to be
grievous and injury No.(2) is stated to be simple in nature. Further, PW 1
has produced Ex.P.11 Discharge Summary issued by the said Hospital,
which reveals that the minor petitioner was diagnosed to have suffered
Proximal and humerus fracture on right side, for which he was treated
28 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
conservatively with high A/E POP slab on right side from 17.04.2014 to
21.04.2014.
58. PW 1 has also produced Ex.P.12 Medical Bills pertaining to the
minor petitioner, which account, in all for Rs.10,291/-.
59. Though the petitioner has contended that the injury suffered by the
minor petitioner resulted in disability, but to substantiate the same, neither
she examined the doctor who treated him nor placed on record any
documentary evidence. Under such circumstances, the contention of PW 1
that the minor petitioner has suffered permanent disability, has remained as
contention only.
60. Thus, considering the nature of injury ie., one grievous injury,
which is treated conservatively and one simple injury and the amount spent
for treatment, I deem it just and proper to award Rs.50,000/- as
compensation to the petitioner towards pain and suffering, medical expenses,
attendant charges and conveyance expenses.
61. Further, the petitioner has been awarded Rs.10,000/- under the
head loss of amenities in life, since at his tender age, the minor petitioner
had to suffer fracture injury and he has to bear the pain throughout his life.
Thus, in all, the petitioner has been awarded Rs.60,000/- as compensation, as
discussed above.
29 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
62. As held in issue No.1 that the accident occurred on account of
negligence of the driver of the Innova car in which this petitioner was
traveling, after deducting 25% ie. Rs.15,000/- out of the total compensation
of Rs.60,000/- towards the contributory negligence of the driver of the car in
which the petitioner was travelling, the petitioner is entitled to 75% ie.
Rs.45,000/- only. Accordingly, I answer issue No.3 in MVC No.2706/2014
partly in the affirmative.
63. Issue No.3 in MVC No.2707/2014:- It is the case of the petitioner
in this case that after the accident, he was rushed to SDM Hospital, Dharwad
wherein he was admitted as inpatient from 17.04.2014 to 21.04.2014 and in
the accident, he was diagnosed to have suffered post traumatic left multiple
rib fractures with left hemopneumothorax with right upper pole kidney
laceration/infarct. The petitioner has not only stated so in the petition, but
also reiterated the same in his evidence also as PW 2. He has also produced
Ex.P.14 Wound Certificate issued by SDM Hospital, Dharwad, perusal of
which reveals that in the accident, the petitioner has suffered "Tenderness in
left side of chest in mid clavicular place in middle and lower part" and the
said injury is shown to be grievous in nature. The petitioner has also
produced Ex.P.15 Discharge Summary issued by the said Hospital, which
30 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
reveals that the petitioner was admitted on 17.04.2014 and discharged on
21.04.2014, and after having diagnosed "Post traumatic left multiple rib
fracture with left hemopneumothorax with right upper pole kidney
laceration/infarct hypertension epilepsy" and he was managed
conservatively. Further in Ex.P.15, history of illness reveals that the
petitioner had K/C/O Epilepsy since 2-3 years, last episode was 6 months
back, not on anticonvulsant treatment and it is a known case of hyper tension
and epilepsy.
64. He has been cross-examined by the counsel for the respondent No.1,
wherein, it is suggested that he has sustained only simple injuries and hence,
there is no question of spending an amount of Rs.75,000/- and the said
suggestion has been denied by him. It is suggested to him that he has
created the medical bills to claim more compensation and the said
suggestion has been denied by him. He admits that he has not produced the
salary certificate to show that he was getting salary of Rs.36,000/-. He
further admits that there is no any reduction in his salary after the accident.
65. Now, let me appreciate the evidence of PW 2 with regard to the
nature and gravity of injuries, amount spent for treatment and the disability
if any suffered by him and also the loss of income during treatment etc.
31 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
66. Ex.P.14 Wound Certificate and Ex.P.15 Discharge Summary show
that in the accident, the petitioner has suffered multiple rib fractures on left
side with left hemopneumothorax with CT abdomen suggestion of right
upper pole of the kidney and laceration of infarct. Ex.P.15 further shows that
the petitioner was treated at SDM Hospital, Dharwad from 17.04.2014 to
21.04.2014. It is relevant to state here that as per Ex.P.15, petitioner has a
known case of hyper tension and epilepsy. That being the case, the injury
suffered by petitioner in the accident got aggravated. Thus, considering the
nature and gravity of injury and the period of treatment, the petitioner has
been awarded Rs.35,000/- under the head pain and suffering. Rs.10,000/-
towards conveyance, attendance and other misc.expenses.
67. The petitioner has produced Ex.P.16 - Medical Bills 12 in numbers,
accounting to Rs.33,557/- along with prescriptions 21 nos. The bills covered
in Ex.P.16 are issued by SDM Pharmacy and the prescriptions are also
issued by SDM Hospital. Therefore, the contents of Bills and Prescriptions
cannot be doubted. Hence, I award Rs.33,557/- under the head medical
expenses.
68. It is the case of the petitioner that he was working as Civilian-
Defence Employee in DRDO Bengaluru and getting a salary of Rs.36,000/-
per month and on account of the injuries and treatment, he has suffered loss
32 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
of income during treatment and also suffered disability, which resulted in
loss of future earning capacity. The petitioner having contended that he is a
defence employee and earning Rs.36,000/- has failed to produce his
employment particulars or the salary particulars. He admits in his cross-
examination that he has not produced the salary certificate and further
admits that there is no any reduction in his salary after the accident. Such
being the case, though the petitioner has suffered multiple ribs fracture,
which in my opinion, has not rendered him disable to continue his job or
suffered any future loss of income. Even the petitioner has not examined the
doctor who treated him, to speak about the effect of injuries on his physical
fitness to continue the job. Moreover, the petitioner had an episode of
epilepsy much prior to the accident. Under these circumstances, considering
the fact that the petitioner was inpatient for 5 days and that he has suffered
multiple rib fractures and that he has not produced any particulars about his
employment and income, I deem it just and proper to award Rs.25,000/-
under the head loss of income during the period of treatment and loss of
amenities in life for having suffered multiple rib fractures.
69. Thus, in all, the petitioner has been awarded compensation of
Rs.1,03,557/- which is rounded off to Rs.1,04,000/-. After deducting 25%
ie., Rs.26,000/- out of the total compensation of Rs.1,04,000/- towards the
33 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
contributory negligence of the driver of the car in which the petitioner was
travelling, the petitioner is entitled to 75% ie. Rs.78,000/- only. Accordingly,
issue No.3 in MVC No.2707/2014 is answered partly in the affirmative.
70. Issue No.3 in MVC No.2708/2014:- It is the case of the petitioner
in this case that after the accident, she was shifted to SDM Hospital,
Dharwad wherein she was treated as inpatient from 17.04.2014 to
20.04.2014 and due to the tremendous impact of the accident, she was
diagnosed to have suffered Type I compound distal humerus shaft fracture
right side with radial nerve palsy. The petitioner has not only stated so in
the petition, but also reiterated the same in her evidence also as PW 3. She
has also produced Ex.P.18 Wound Certificate issued by SDM Hospital,
Dharwad, perusal of which reveals that in the accident, the petitioner has
suffered "(1) Swelling over middle 1/3rd of right arm with laceration at
centre of size ½ cms X ½ cm X bone deep (2) Contusion of size 2cm X 2cm
on left temporal region (3) Pain and tenderness in lower back (L-S spine)"
and injury No.1 is shown to be grievous in nature and injury No.2 and 3 are
shown to be simple in nature. The petitioner has also produced Ex.P.20
Discharge Summary issued by the said Hospital, which reveals that the
petitioner was admitted on 17.04.2014 and discharged on 20.04.2014, and
after having diagnosed to have suffered "Type I Compound distal numerus
34 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
shaft fracture right side with radial nervy palsy" she was managed
conservatively Further in Ex.P.20, it is stated that the petitioner and his
relatives have been explained about the fracture and the need of operative
management and the patients wanted further management at a higher
medical centre in Bangalore and requested to discharge and accordingly, the
petitioner was then shifted to Command Hospital, Bengaluru and thereafter,
she was treated at HOSMAT Hospital, Bengaluru from 24.04.2014 and
discharged on 26.04.2014. The petitioner thus examined PW 8, Dr.Krishan
Prasad, Professor and Surgeon of Orthopedics at HOSMAT Hospital,
Bengaluru. The evidence of PW 8 goes to show that the petitioner was
earlier treated at SDM Hospital, Dharwad and then at Command Hospital,
Bengaluru and thereafter, she was admitted to HOSMAT Hospital on
24.04.2014 for fracture of shaft comminuted right humerus with right wrist
drop and for that, on 25.04.2014, lock compression plating right humerus
was done and hence, the fractures have healed and the wrist drop has
recovered right wrist and the petitioner had a weak grip and pinch strength
and therefore, on 27.06.2014, he assessed the petitioner for disability and the
petitioner complained that she has difficulty in doing overhead activities,
lifting weights, combing and wearing clothes, buttoning and strapping. She
further complained weak grip in her right hand and difficulty in locking her
35 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
house and she has tingling and numbness in her thumb, index and middle
fingers. Therefore, PW 8 deposes that after having examining the petitioner
clinically and radiologically and considering the mobility and stability
component and co-ordinated activities, he has assessed the total upper limb
disability at 41% and total whole body disability at 14%. He has further
deposed that the petitioner has to undergo surgery for implant removal,
which will cost Rs.55,000/-. In support of his evidence, he has produced
Ex.P.75 IP Record, Ex.P.76 OP Record and Ex.P.77 - 3 Xrays.
71. PW 8 has been cross-examined by the counsel for respondent No.1,
wherein he admits that he has not given any personal treatment to the
petitioner and he assessed the disability after consultation with the operating
surgeon and the fractures are united. It is suggested to him that having
regard to union of factures, disability assessed by him at 14% is on higher
side and the said suggestion has been denied by him. It is suggested to him
that surgery is not required for removal of implants and that the petitioner is
not having any difficulty as mentioned in the affidavit and the said
suggestion has been denied by him.
72. Now, let me appreciate the evidence of PW 3 and PW 8 with regard
to the nature and gravity of injuries, amount spent for treatment and the
36 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
disability if any suffered by her and also the loss of income during treatment
etc.
Ex.P.18 Wound Certificate and Ex.P.20 Discharge Summary show that in
the accident, the petitioner has suffered 3 injuries, out of them, one is
grievous in nature ie., Type I compound Distal Numerus shaft fracture right
side with radial nerve palsy and that she was treated in various hospital for 7
days. Considering the same, I deem it just and proper to award Rs.35,000/-
under the head pain and suffering and Rs.10,000/- towards conveyance,
attendance and other misc.expenses.
73. The petitioner has produced Ex.P.22 - Medical Bills 12 in numbers,
accounting to Rs.22,112/- along with prescriptions 23 nos. The bills covered
in Ex.P.22 are issued by various Pharmacy and the prescriptions are also
produced. Therefore, the contents of Bills and Prescriptions cannot be
doubted. Hence, I award Rs.22,112/- under the head medical expenses.
74. It is the case of the petitioner that she was a house maker and on
account of the injuries suffered by her in the accident, she suffered disability
and hence, prayed to award compensation under the head disability. As
discussed above, PW 8, Orthopedic Surgeon has deposed that the petitioner
has suffered 41% disability to the upper limb and 14% disability to the
whole body. The fact that the petitioner has suffered Type I comminuted
37 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
distal numerus shaft fracture right side with radial nerve palsy is clear from
the medical records and it is also clear from the records that she availed
treatment from various hospital as inpatient. However, the fact that PW8 is
not the treated doctor of petitioner and also the fact that PW 8 has not given
any treatment to petitioner coupled with the fact that fracture are united,
makes it difficult to accept the evidence of PW 8 in its entirety as to the
percentage of disability stated to have been suffered by PW 3. High Court
as well as Apex Court have repeatedly held that the evidence of doctor who
has not treated the petitioner has to be examined carefully, though they
cannot be discarded. Keeping the said principle in mind, I deem it just and
proper to take the disability said to have been suffered by the petitioner at
10% as against 14% stated by PW 8.
75. Admittedly, the petitioner is a housewife and the services rendered
by her to the family, in terms of money, is assessed at Rs.5,000/- per month.
As discussed above, the petitioner has suffered 10% disability and 10% of
her income at Rs.5,000/- comes to Rs.500/- and annually, it works out to
Rs.6,000/- and the petitioner's age being 53 years as disclosed by her in the
petition, supported by medical records, by applying 11 multiplier, the
petitioner has been awarded Rs.66,000/- under the head loss of income on
account of disability and Rs.10,000/- under the head loss of amenities in life
38 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
on account of disability. Further, the petitioner has been awarded
Rs.15,000/- under the head loss of income during the period of treatment for
3 months at the rate of Rs.5,000/- per month, since she was inpatient for 7
days in various hospitals on account of fracture and further she had to take
rest for a period of 4 weeks, during which period, family members of
petitioner had to engage some to attend to the house work.
76. Though PW 8 says that the petitioner has to undergo surgery for
removal implants, but the expenses to be incurred by her for the same, as
stated by PW 8 appears to be on higher side, though the fact that the
petitioner has to undergo future surgery cannot be ruled out. Considering the
present day cost of living and the expenses, I deem it just and proper to
award Rs.20,000/- under the head future medical expenses, which shall not
carry any interest.
77. Thus, in all petitioner has been awarded compensation of
Rs.1,78,112/-. After deducting 25% ie., Rs.44,528/- out of the total
compensation of Rs.1,78,112/- towards the contributory negligence of the
driver of the car in which the petitioner was travelling, the petitioner is
entitled to 75% ie. Rs.1,33,584/- only. Accordingly, issue No.3 in MVC
No.2708/2014 has been awswered.
39 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
78. Issue No.3 in MVC No.2709/2014:- It is the case of the petitioner in
this case that after the accident, he was shifted to SDM Hospital, Dharwad
wherein he was treated as inpatient from 17.04.2014 to 20.04.2014 and due
to the tremendous impact of the accident, he was diagnosed to have suffered
fracture shaft right humerus with multiple cut lacerated wound over the right
arm and blunt chest trauma. The petitioner has not only stated so in the
petition, but also reiterated the same in her evidence also as PW 4. He has
also produced Ex.P.24 Wound Certificate issued by SDM Hospital,
Dharwad, perusal of which reveals that in the accident, the petitioner has
suffered "(1) Cut lacerated wound of size 1 cm x 1cm X bone deep on right
side of forehead near eye, (2) Cut lacerated wound of size 3 cm X 4 cm over
right shoulder (3) Cut lacerated wound of size 10 cm X 1 cm X 3 cm on
upper 1/3rd right arm with deformity (4) Tenderness on left upper chest (5)
Contusion on right inner malleolus of size 9 cm x 3cm and injury No.3 and 4
are shown to be grievous in nature and injury No.1, 2 and 5 are shown to be
simple in nature. The petitioner has also produced Ex.P.26 Discharge
Summary issued by the said Hospital, which reveals that the petitioner was
admitted on 17.04.2014 and discharged on 20.04.2014, and after having
diagnosed to have suffered "Blunt chest trauma, fracture shaft right humerus
with multiple deep cut lacerated wound over the right arm", he was managed
40 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
by wound debridement with primary suturing of the deep cut lacerated
wound over the right arm. In Ex.P.26, it is stated that the petitioner and his
relatives have been explained about the fracture and the need of operative
management and the patients wanted further management at a higher
medical centre in Bangalore and requested to discharge and accordingly, the
petitioner was then shifted to Sathya Sai Lake Side Hospital, Bengaluru,
wherein he was treated as inpatient from 21.04.2014 and discharged on
22.04.2014. The petitioner thus examined PW 9, Dr.Vijay, Consultant
Orthopedic Surgeon, Sathya Sai Lake Side Hospital, Bengaluru. The
evidence of PW 9 goes to show that the petitioner was earlier treated at
SDM Hospital, Dharwad and thereafter, he was admitted to Sathya Sai Lake
Side Hospital on 21.04.2014 and was treated till 22.04.2014 and during the
said period, the petitioner was treated with closed reduction internal fixation
with rush nails. Thereafter, he examined the petitioner on 21.05.2015 for
disability assessment and the petitioner complained pain in right shoulder
region (dominant extremely), movements of right shoulder are painful in the
terminal ranges, muscle weakness or limb length discrepancy and Xray
showed united fracture shaft right humerus with callus formation and
angulations. Therefore, PW 9 deposes that after having examining the
petitioner clinically and radiologically and considering the mobility and
41 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
stability component and co-ordinated activities, he has assessed the total
upper limb disability at 22% and whole body disability at 11%. In support
of his evidence, he has produced Ex.P.78 Assessment Proforma, Ex.P.79
Inpatient Record and Ex.P.80 10 X rays.
79. PW 9 has been cross-examined by the counsel for respondent
No.1, wherein it is elicited from him that he has treated the petitioner for 2
days and assessed the disability. He admits that para 2 of his affidavit
averments are based on the say of the patient. He further admits that the
fractures are united. He further admits that the petitioner did not show him
the cancellation of the driving licence. He says that the petitioner can do his
day to day activities with difficulties. It is suggested to him that the
disability assessed by him at 11% is on higher side and there may be
disability of 2-3% only and the said suggestion has been denied by him.
80. Now, let me appreciate the evidence of PW 4 and PW 9 with regard
to the nature and gravity of injuries, amount spent for treatment and the
disability if any suffered by him and also the loss of income during treatment
etc.
Ex.P.24 Wound Certificate and Ex.P.26 Discharge Summary show that in
the accident, the petitioner has suffered blunt chest trauma and fracture shaft
right humerus with multiple deep cut lacerated wound over the right arm and
42 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
that he was treated initially at SDM Hospital, Dharwad and thereafter at
Sathya Sai Lake Side Hospital, Bengalur for 6 days. Considering the same, I
deem it just and proper to award Rs.35,000/- under the head pain and
suffering and Rs.10,000/- towards conveyance, attendance and other
misc.expenses.
81. The petitioner has produced Ex.P.28 - Medical Bills 24 in numbers,
accounting to Rs.78,391/- along with prescriptions. The bills covered in
Ex.P.28 are issued by various Pharmacy and the prescriptions are also
produced. Therefore, the contents of Bills and Prescriptions cannot be
doubted. Hence, I award Rs.78,391/- under the head medical expenses.
82. It is the case of the petitioner that he was a taxi driver at the time of
the accident and earning Rs.10,000/- per month and on account of the
injuries suffered by him in the accident, ie., right hand fracture, he suffered
disability and hence, prayed to award compensation under the head
disability. To show that he is a driver, the petitioner has produced the
Notarised Copy of Driving Licence marked as Ex.P.25, according to which,
the petitioner is permitted to drive MCWG, LMV and LMV Cab. Thus,
from Ex.P.25, it is evident that the petitioner is a driver by profession, but so
far as quantum of income is concerned, there is no proof, since he has not
produced either salary certificate or his employer. Therefore, considering
43 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
the age of the petitioner as 36 years at the of accident as per Ex.P.25, I deem
it just and proper to take his income at Rs.7,000/- per month.
83. As discussed above, PW 9, Orthopedic Surgeon has deposed that the
petitioner has suffered 22% disability to the upper limb and 11% disability
to the whole body. The fact that the petitioner has suffered fracture shaft
right humerus with multiple deep cut lacerated wound is clear from the
medical records and it is also clear from the records that he took treatment
from SDM Hospital, Dharwad and Sathya Sai Lake Side hospital as
inpatient. Even though PW 9 is the treated doctor of petitioner, the fact that
fracture is united and further PW9 has assessed the disability to whole body
at 11% ie., 50% out of total disability of 22% makes it difficult to accept
the evidence of PW 9 in its entirety as to the percentage of disability stated
to have been suffered by PW 4. Usually, disability to whole body will be
1/3rd of the total body disability, but in this case, as stated above, the doctor
has assessed the whole body disability at 50%, which cannot be accepted
and in my opinion, it has to be 7% to whole body.
84. Income of the petitioner is taken at Rs.7,000/- per month. As
discussed above, the petitioner has suffered 7% disability and 7% of his
income at Rs.7,000/- comes to Rs.490/- and annually, it works out to
Rs.5,880/- and the petitioner's age being 36 years as per Ex.P.25 Driving
44 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
Licence, by applying 16 multiplier, the petitioner has been awarded
Rs.88,200/- under the head loss of income on account of disability and
Rs.10,000/- under the head loss of amenities in life on account of disability.
Further, the petitioner has been awarded Rs.21,000/- under the head loss of
income during the period of treatment for 3 months, since he was inpatient
for 6 days in various hospitals on account of fracture and further he had to
take rest for a period of 4 weeks.
85. Thus, the petitioner in MVC No.2709/2014 has been awarded
compensation of Rs.2,42,591/-. After deducting 25% ie. Rs.60,647/- out of
the total compensation of Rs.2,42,591/- towards the contributory negligence
of the driver of the car in which the petitioner was travelling, the petitioner is
entitled to 75% ie. Rs.1,81,941/- only.
86. Issue No.3 in MVC No.2710/2014:- It is the case of the petitioner in
this case that after the accident, she was shifted to SDM Hospital, Dharwad
wherein she was treated as inpatient from 17.04.2014 to 20.04.2014 and due
to the tremendous impact of the accident, she was diagnosed to have
suffered Distal 1/3rd radius and ulna fracture left side and undisplaced iliac
wing fracture right side I compound distal humerus shaft fracture right side
with radial nerve palsy. The petitioner has not only stated so in the petition,
but also reiterated the same in her evidence also as PW 5. She has also
45 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
produced Ex.P.30 Wound Certificate issued by SDM Hospital, Dharwad,
perusal of which reveals that in the accident, the petitioner has suffered "(1)
Contusion over centre of forehead of size 3 cm x 3 cm (2) Black eye on left
side (3) Pain and restricted of left hip joint (4) Tenderness in both side of
lumbor region (5) Deformity in lower 1/3rd of left fore arm with laceration of
size 1cm X 1cm on outer side (6) Abrasion on outer side of right thigh on
upper aspect and injury No.5 and 6 are shown to be grievous in nature and
injury No.1 to 4 are shown to be simple in nature. The petitioner has also
produced Ex.P.31 Discharge Summary issued by the said Hospital, which
reveals that the petitioner was admitted on 17.04.2014 and discharged on
20.04.2014, and after having diagnosed to have suffered "Distal 1/3rd radius
and ulna fracture left side and undisplaced iliac wing fracture right side" she
was managed conservatively. Further in Ex.P.31, it is stated that the
petitioner and her relatives have been explained about the fracture and the
need of operative management and the patient wanted further management
at a higher medical centre in Bangalore and requested to discharge and
accordingly, the petitioner was then shifted to Sathya Sai Lake Side
Hospital, Bengaluru wherein she was treated till 22.04.2014. The petitioner,
thus examined PW 9, Dr.Vijay M., Surgeon of Orthopedics at Sri Sathya Sai
Lake Side Hospital, Bengaluru. The evidence of PW 9 goes to show that the
46 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
petitioner was earlier treated at SDM Hospital, Dharwad and then she was
shifted to their hospital on 21.04.2014 for fracture both bones left wrist with
comminuting of ulna and deep abrasions over right thigh, for which open
reduction with internal fixation with DCP left radius and ORIF with K wire
and SS wire for ulna was done on 21.04.2014 and discharged on 22.04.2014.
It is the further evidence of PW 9 that on 21.05.2014, he examined the
petitioner with the complaints of pain in left wrist region and
hypersensitivity of skin in right thigh, movements of the left wrist were
painful and restricted in the terminal range and X ray showed united fracture
both bones of left wrist with implants in situ. Therefore, PW 9 deposes that
after having examining the petitioner clinically and radiologically and
considering the mobility and stability component and co-ordinated activities,
he has assessed the total upper limb disability at 30%, lower limb disability
at 6% and total whole body disability at 18%. He has further deposed that
the petitioner has to undergo surgery for implant removal, which will cost
Rs.30,000/-. In support of his evidence, he has produced Ex.P.81
Assessment Proforma, Ex.P.82 Inpatient Record and 7 X rays as Ex.P.83.
87. PW 9 has been cross-examined by the counsel for respondent
No.1, wherein he admits that he has treated the petitioner for 2 days in the
hospital and against admitted for skin grafting for a day and he further says
47 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
that he has produced the inpatient records. He says that the petitioner can do
her day to day activities with difficulties. He admits that para 2 of his
affidavit averments are based on the say of the patient. He further admits
that the fractures are united. It is suggested to him that the disability
assessed by him at 18% is on higher side and there may be disability of 2-
3% only and the said suggestion has been denied by him. It is suggested to
him that the petitioner is not required Rs.30,000/- for removal of implants
and the said suggestion has been denied by him.
88. Now, let me appreciate the evidence of PW 5 and PW9 with regard
to the nature and gravity of injuries, amount spent for treatment and the
disability if any suffered by her and also the loss of income during treatment
etc.
89. Ex.P.30 Wound Certificate and Ex.P.31 Discharge Summary show
that in the accident, the petitioner has suffered 6 injuries, out of them, two
injuries are grievous in nature ie., distal 1/3rd radius and ulna fracture left
side and undisplaced iliac wing facture right side and that she was treated
initially at SDM Hospital, Dharwad and thereafter at Sri Sathya Sai Lake
Side Hospital, in all for 7 days. Considering the same, I deem it just and
proper to award Rs.50,000/- under the head pain and suffering and
Rs.10,000/- towards conveyance, attendance and other misc.expenses.
48 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
90. The petitioner has produced Ex.P.34 - Medical Bills 28 in numbers,
accounting to Rs.78,121/- along with prescriptions. The bills covered in
Ex.P.34 are issued by Hospitals and various Pharmacy and the prescriptions
are also produced. Therefore, the contents of Bills and Prescriptions cannot
be doubted. Hence, I award Rs.78,121/- under the head medical expenses.
91. It is the case of the petitioner that she was a house maker and on
account of the injuries suffered by her in the accident, she suffered disability
and hence, prayed to award compensation under the head disability. As
discussed above, PW 9, Orthopedic Surgeon has deposed that the petitioner
has suffered 36% disability to the upper and lower limb and 18% disability
to the whole body. The fact that the petitioner has suffered distal 1/3rd radius
and ulna fracture left side and undisplaced iliac wing facture right side is
clear from the medical records and it is also clear from the records that she
took treatment from various hospital as inpatient for 7 days. Even though
PW 9 is the treated doctor of petitioner, the fact that fracture is united and
further PW9 has assessed the disability to whole body at 18% ie., 50% out
of total disability of 36% makes it difficult to accept the evidence of PW 9
in its entirety as to the percentage of disability stated to have been suffered
by PW 5. Usually, disability to whole body will be 1/3rd of the total body
disability, but in this case, as stated above, the doctor has assessed the whole
49 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
body disability at 50%, which cannot be accepted and in my opinion, it has
to be 12% to whole body.
92. Admittedly, the petitioner is a housewife and the services rendered
by her to the family, in terms of money, is assessed at Rs.5,000/- per month.
As discussed above, the petitioner has suffered 12% disability and 12% of
her income at Rs.5,000/- comes to Rs.600/- and annually, it works out to
Rs.7,200/- and the petitioner's age being 30 years as per the Aadhaar Card
produced and marked as Ex.P.33, by applying 17 multiplier, the petitioner
has been awarded Rs.1,22,400/- under the head loss of income on account of
disability and Rs.10,000/- under the head loss of amenities in life on account
of disability. Further, the petitioner has been awarded Rs.15,000/- under the
head loss of income during the period of treatment for 3 months, since she
was inpatient for 7 days in various hospitals on account of fracture and
further she had to take rest for a period of 4 weeks, during which period,
family members of petitioner had to engage some to attend to the house
work.
93. Though PW 9 says that the petitioner has to undergo surgery for
removal implants, but the expenses to be incurred by her for the same, as
stated by PW 9 appears to be on higher side, though the fact that the
petitioner has to undergo future surgery cannot be ruled out. Considering the
50 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
present day cost of living and the expenses, I deem it just and proper to
award Rs.20,000/- under the head future medical expenses, which shall not
carry any interest.
94. Thus, in all, the petitioner has been awarded compensation of
Rs.3,05,521/-. After deducting 25% ie., Rs.76,380/- out of the total
compensation of Rs.3,05,521/- towards the contributory negligence of the
driver of the car in which the petitioner was travelling, the petitioner is
entitled to 75% ie. Rs.2,29,140/- only. Accordingly, issue No.3 in MVC
No.2710/2014 is answered partly in the affirmative.
95. Issue No.3 in MVC No.3009/2014:- It is the case of the petitioner
in this case that after the accident, she was shifted to SDM Hospital,
Dharwad wherein she was treated as inpatient on 17.04.2014 and on
18.04.2014 and due to the tremendous impact of the accident, she was
diagnosed to have suffered (1) Contusion of size 5 cm x 4 cm over right
temporal region with CLW at center of it of size ½ x ½ cm (2) Multiple
abrasions of size ½ cm x ½ cm on outer side of right elbow and fore arm
and the injury No.1 is shown as simple and injury No.2 is shown as grievous
in nature. The petitioner has not only stated so in the petition, but also
reiterated the same in her evidence also as PW 6. She has also produced
Ex.P.36 Wound Certificate issued by SDM Hospital, Dharwad, perusal of
51 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
which reveals that in the accident, the petitioner has suffered the above
injuries. The petitioner has also produced Ex.P.38 Discharge Summary
issued by the said Hospital, which reveals that the petitioner was admitted on
18.04.2014 and discharged on 18.04.2014, and after having diagnosed to
have suffered "Undisplaced proximal ulnar shaft fracture on the right side
with soft tissue injury at the back she was managed conservatively with
application of POP slab on right side. Further in Ex.P.38, it is stated that the
petitioner and her relatives have been explained about the fracture and the
need of operative management and the patient wanted further management
at a higher medical centre in Bangalore and requested to discharge and
accordingly, the petitioner was discharged. The petitioner has also
produced Ex.P.39, another Discharge Summary issued by Ramani
Orthopedic Center, Bengaluru wherein she was treated till from 24.06.2014
to 26.06.2014 ie., about 2 months after the accident. The petitioner, thus
examined PW 11, Dr.K.Sadananda Hegde, Senior Orthopedic Surgeon
working at Ramani Orthopedic Center, Vyalikaval, Bengaluru. The evidence
of PW 11 goes to show that the petitioner was earlier treated at SDM
Hospital, Dharwad from 17.04.2014 to 18.04.2014 and then she came to
their hospital on 24.06.2014 and on examination, he found delayed union of
ulna upper 1/3rd shaft fracture on right side with soft tissue injury at the back
52 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
and for that open reduction internal fixation was done on 25.06.2014 and
discharged on 26.06.2014. It is the further evidence of PW 11 that on
14.04.2015, he examined the petitioner with the complaints of pain over
right forearm, difficulty in doing overhead activities, lifting weights,
combing and wearing clothes, buttoning, strapping. Therefore, PW 11
deposes that after having examining the petitioner clinically and
radiologically and considering the mobility and stability component and co-
ordinated activities, he has assessed the total disability at 12%. He has
further deposed that the petitioner has to undergo surgery for implant
removal, which will cost Rs.35,000/-. In support of his evidence, he has
produced Ex.P.85 OPD Card, P.86 Case Sheet and P.87 - 2 X rays.
96. PW 11 has been cross-examined by the counsel for respondent
No.1, wherein he admits that the petitioner came to him after 2 months of
the accident and the petitioner has taken treatment conservatively. It is
suggested to him that if the petitioner had approached immediately after the
accident, these type of disability would not have arose and the said
suggestion has been denied by him. He admits that the fracture is united. It
is suggested to him that in view of uniting of fracture, the disability does not
arise as mentioned in the affidavit and the said suggestion has been denied
by him. He says that the petitioner can do her day to day activities with
53 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
difficulties. It is suggested to him that since the petitioner is aged 35 years,
the disability will be reduced gradually and the said suggestion has been
denied by him. It is suggested to him that the disability assessed by him at
12% is on higher side and the said suggestion has been denied by him. It is
suggested to him that the petitioner is not required Rs.35,000/- for removal
of implants and the said suggestion has been denied by him.
97. Now, let me appreciate the evidence of PW 6 and PW 11 with
regard to the nature and gravity of injuries, amount spent for treatment and
the disability if any suffered by her and also the loss of income during
treatment etc.
Ex.P.37 Wound Certificate and Ex.P.38 Discharge Summary show that in
the accident, the petitioner has suffered 2 injuries, out of them, one is
grievous in nature ie., undisplaced proximal ulnar shaft fracture on right side
with soft tissue injury at the back and that she was treated initially at SDM
Hospital, Dharwad and thereafter, after a gap of 2 months, at Ramani
Orthopedic Center, Bengaluru, in all for 5 days. Considering the same, I
deem it just and proper to award Rs.35,000/- under the head pain and
suffering and Rs.10,000/- towards conveyance, attendance and other
misc.expenses.
54 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
98. The petitioner has produced Ex.P.40 - Medical Bills 14 in numbers,
accounting to Rs.50,664/- along with prescriptions. The bills covered in
Ex.P.40 are issued by Hospitals and various Pharmacy and the prescriptions
are also produced. Therefore, the contents of Bills and Prescriptions cannot
be doubted. Hence, I award Rs.50,664/- under the head medical expenses.
99. It is the case of the petitioner that she was a house maker and on
account of the injuries suffered by her in the accident, she suffered disability
and hence, prayed to award compensation under the head disability. As
discussed above, PW 11, Orthopedic Surgeon has deposed that the petitioner
has suffered 12% total disability to the whole body. The fact that the
petitioner has suffered Undisplaced proximal ulnar shaft fracture on right
side with soft tissue injury at the back is clear from the medical records and
it is also clear from the records that she took treatment from various hospital
as inpatient for 5 days. Even though PW 11 is the treated doctor of
petitioner, the fact that fracture is united and further PW 11 has simply
assessed the disability to whole body at 12% without mentioning the
disability to the particular limb makes it difficult to accept the evidence of
PW 11 in its entirety as to the percentage of disability stated to have been
suffered by PW 6. Furthermore, after discharge from SDM Hospital
Dharwad on 18.04.2014, the petitioner kept quiet for 2 months, for the
55 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
reasons best known to her. Again she got admitted to Ramani Orthopedic
Hospital, Bengaluru on 24.06.2014, after 2 months. Probably, the petitioner
was under the impression that the injuries have healed and hence got
discharged from SDM Hospital, Dharwad but, when the injuries found to be
unhealed and started to aggravate, she again got admitted to Ramani
Orthopedic Center, Bengaluru. Even in Ex.P.39 Discharge Summary issued
by Ramani Orthopedic Center shows that she got admitted to the said
hospital for delayed union of ulna, middle 1/3rd, which she suffered in the
accident, discussed above. Even though it is suggested to PW 1 that if the
petitioner had approached immediately after the accident, this type of
disability would not have occurred and the same is denied by him, but the
fact remains that when she felt recovered from the injury she got discharged
from the hospital and again when the injury started troubling her, she got
admitted again, though there is a delay of 2 months and the fact that she got
admitted to hospital for non union of fracture, discloses that there is nexus
between the injuries and the earlier treatment and the treatment which she
taken after 2 months. But as far as the percentage of disability stated to have
been suffered by PW 6 is concerned, it is highly on the higher side, for the
reason that PW 11 no where discloses the disability to the particular limb
and he straight away discloses the disability to whole body at 12%, which
56 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
cannot be accepted. Usually, disability to whole body will be 1/3rd of the
total body disability, but in this case, as stated above, the doctor has assessed
the whole body disability at 12%, which cannot be accepted and in my
opinion, it has to be 7% to whole body, since she has suffered undisplaced
proximal ulnar shaft fracture. Hence, considering the nature of job of
petitioner, ie., house wife, I deem it just and proper to award Rs.63,000/-
(5000X7%X12X15) under the head disability and loss of amenities in life on
account of disability. Further, the petitioner has been awarded Rs.15,000/-
under the head loss of income during the period of treatment for 3 months at
the rate of Rs.5,000/- per month, since she was inpatient for 5 days in
various hospitals on account of fracture and further she had to take rest for a
period of 4 weeks, during which period, family members of petitioner had to
engage some to attend to the house work.
100. Though PW 11 says that the petitioner has to undergo surgery for
removal implants, but the expenses of Rs.35,000/- to be incurred by her for
the same, as stated by PW 9 appears to be on higher side, though the fact
that the petitioner has to undergo future surgery cannot be ruled out.
Considering the present day cost of living and the expenses, I deem it just
and proper to award Rs.20,000/- under the head future medical expenses,
which shall not carry any interest.
57 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
101. Thus, in all, the petitioner has been awarded compensation of
Rs.1,93,664/-. After deducting 25% ie., Rs.48,416/- out f the total
compensation of Rs.1,93,664/- towards the contributory negligence of the
driver of the car in which the petitioner was travelling, the petitioner is
entitled to 75% ie. Rs.1,45,248/- only. Accordilgy, issue No.3 in MVC
No.3009/2014 is answered partly in the affirmative.
102. Issue No.3 in MVC No.3010/2014:- Petitioner in this case is a
minor girl of 12 years studying in 6th standard and hence, she is represented
by her mother and natural guardian, who has been examined as PW 6 and in
her evidence, PW 6 says that in the accident, her daughter suffered injuries
and immediately after the accident, she was shifted to SDM Hospital,
Dharwad wherein he was treated as inpatient and they have spent morethan
Rs.50,000/- for treatment and inspite of treatment, her daughter became
disabled. PW 6, in support of her evidence, produced Ex.P.42 Wound
Certificate issued by SDM Hospital, Dharwad which reveals that the minor
ward has suffered "Pain in right thigh in its upper and middle part with
deformity in upper 1/3rd movements restricted in right hip joint and the
injury is shown to be grievous in nature. Further, PW 6 has produced
Ex.P.44 Discharge Summary issued by the said Hospital, which reveals that
the minor petitioner was diagnosed to have suffered Posterior dislocation of
58 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
right hip with no distal neurological deficit and for that she was treated with
closed reduction of right hip with Thomas splint immobilization of right
lower limb done under GA on 17.04.2014.
103. PW 6 has also produced Ex.P.45 Medical Bills pertaining to the
minor petitioner, which account, in all for Rs.8,497/- along with
prescriptions 8 nos which are marked as Ex.P.46.
104. Though the petitioner has contended that the injury suffered by
the minor petitioner resulted in disability, but to substantiate the same,
neither examined the doctor who treated her nor placed on record any
documentary evidence. Under such circumstances, the contention of PW 6
that the minor petitioner has suffered permanent disability, has remained as
contention only.
105. Thus, considering the nature of injury ie., grievous injury, which
is treated conservatively and the amount spent for treatment, I deem it just
and proper to award Rs.50,000/- as compensation to the petitioner towards
pain and suffering, medical expenses, attendant charges and conveyance
expenses.
106. Further, the petitioner has been awarded Rs.10,000/- under the
head loss of amenities in life, since at her tender age, the minor petitioner
had to suffer such a grievous injury and she has to bear the pain throughout
59 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
her life. Thus, in all, the petitioner has been awarded Rs.60,000/- as
compensation, as discussed above.
107. Thus, in all, the petitioner has been awarded compensation of
Rs.60,000/-. After deducting 25% ie., Rs.15,000/- out of the total
compensation of Rs.60,000/- towards the contributory negligence of the
driver of the car in which the petitioner was travelling, the petitioner is
entitled to 75% ie. Rs.45,000/- only. Accordingly, issue No.3 in MVC
No.3010/2014 is answered partly in the affirmative.
108. The respondent No.1, by filing the statement of objections to all
these petitions though and by examining RW 1 an officer working in their
office, admitted for having insured the vehicle ie., Lorry No.KA.19/A.1830,
but tried to avoid the liability by stating that the driver of the lorry was not
holding valid and effective driving licence and that there is breach of policy
conditions, but such breach and violations said to have been committed by
respondent No.2 is not proved by the respondent No.1 by placing on record
cogent and acceptable evidence.
109. Admittedly, two vehicles were involved in the accident. The
petitioners ought to have arrayed owner and insurer of both the vehicles.
While answering issue No.1 and in all the cases, this Tribunal held that the
accident has occurred on account of the contributory negligence of driver of
60 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
the lorry No.KA.19/A./1830 to the extent of 75% and driver of the Innova
Car No.KA.03/MJ.5797 to the extent of 25%. Under such circumstances, it
was incumbent upon the petitioners to array the owner and insurer of the
Innova Car also and therefore, having failed to array the owner and insurer
of the Innova Car, the petitioners are held to be entitled to 75% out of the
total compensation, as discussed above, from the owner and insurer of Lorry
No.KA.19/A.1830 only.
110. In a case reported in (2011) 4 SCC 481 : (AIR 2012 SC 100)
(Municipal Council of Delhi Vs. Association of Victims of Uphaar
Tragedy), the Supreme Court has held that the Court has to take into account
the rate of interest of the nationalized bank and the present day cost of living
and thereby awarded, interest on the compensation amount at 9% p.a. I have
no reasons to deviate from the said view of the Apex Court. Accordingly,
interest on compensation amount is awarded at 9% p.a. Accordingly, issue
No.3 in all the cases is answered partly in the affirmative.
111. In the result, I pass the following:-
61 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14
ORDER
MVC No.2705/2014 The petition is partly allowed with costs.
The petitioners have been awarded a total compensation of Rs.13,66,197/- (Being the 75% of total compensation of Rs.18,21,597/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Petitioners 1 to 4 are entitled to the compensation amount in the following ratio:
Petitioner No.1 - 50% Petitioner No.2 - 20% Petitioner 3 and 4 - 15% each 50% out of the amount so apportioned in favour of petitioner No.1, 3 and 4 with proportionate interest is ordered to be kept in FD in their respective name for a period of 5 years, in any nationalized or scheduled bank of their choice. Remaining amount with proportionate interest is ordered to be paid to the respective petitioners. Interest on FD is payable on maturity.
Entire compensation amount with entire interest apportioned in favour of minor petitioners No.2 is ordered to be kept in FD till he attains majority in his name in the bank of the choice of petitioner No.1. Interest on such FD is payable on maturity.
MVC No.2706/2014 62 MVC No.2705/14, 2706/14, 2707/14, 2708/14, 2709/14, 2710/14, 3009/14, 3010/14 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.45,000/- (Being the 75% of the total compensation of Rs.60,000/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with interest is ordered to be deposited in FD till the minor petitioner attains majority, in any bank of the choice of guardian of the minor petitioner. Interest on FD is payable on maturity.
MVC No.2707/2014 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.78,000/- (Being the 75% of the total compensation of Rs.1,04,000/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in FD in the name of the petitioner for 5 years in any of the nationalized or scheduled bank of the choice of the petitioner. Remaining 50% amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity.
MVC No.2708/2014 The petition is partly allowed with costs.63 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14 The petitioner has been awarded compensation of Rs.1,33,584/- (Being the 75% of the total compensation of Rs.1,78,112/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in FD in the name of the petitioner for 5 years in any of the nationalized or scheduled bank of the choice of the petitioner. Remaining 50% amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity. MVC No.2709/2014 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.1,81,941/- (Being the 75% of the total compensation of Rs.2,42,591/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in FD in the name of the petitioner for 5 years in any of the nationalized or scheduled bank of the choice of the petitioner. Remaining 50% amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity.
MVC No.2710/2014 64 MVC No.2705/14, 2706/14, 2707/14, 2708/14, 2709/14, 2710/14, 3009/14, 3010/14 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.2,29,140/- (Being the 75% of the total compensation of Rs.3,05,521/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in FD in the name of the petitioner for 5 years in any of the nationalized or scheduled bank of the choice of the petitioner. Remaining 50% amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity. MVC No.3009/2014 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.1,45,248/- (Being the 75% of the total compensation of Rs.1,93,664/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Out of the compensation amount, 50% with proportionate interest is ordered to be deposited in FD in the name of the petitioner for 5 years in any of the nationalized or scheduled bank of the choice of the petitioner. Remaining 50% amount with proportionate interest is ordered to be released to the petitioner. Interest on FD is payable on maturity. MVC No.3010/2014 65 MVC No.2705/14, 2706/14, 2707/14, 2708/14, 2709/14, 2710/14, 3009/14, 3010/14 The petition is partly allowed with costs.
The petitioner has been awarded compensation of Rs.45,000/- (Being the 75% of the total compensation of Rs.60,000/-) together with interest at the rate of 9% per annum from the date of petition till the realization from the respondents 1 and 2 jointly and severally. The respondent No.1 Insurance Company shall deposit the compensation amount within 2 months from the date of this order.
Entire compensation amount with interest is ordered to be deposited in FD till the minor petitioner attains majority, in any bank of the choice of guardian of the minor petitioner. Interest on FD is payable on maturity.
Advocate's fee is fixed at Rs.1,000/- in each case. Draw a decree accordingly.
Original of this judgment shall be kept in MVC No.2705/2014 and a copy of the same in other cases.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced by me in Open Court on 21.10.2015) (H.P.SANDESH) MEMBER, PRL.MACT ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : Shobha
P.W.2: Surendran S.,
P.W.3: Vasanthi Bai
P.W.4: Vishwanath
P.W.5: Smt.Deepa Vishwanath
P.W.6: Smt.Anitha Bai
P.W.7 : Shivakumar
P.W.8 : Dr.Krishan Prasad
P.W.9: Dr.Vijay M.,
66 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14 P.W.10: Raj Kumar Jha P.W.11: Dr.K.Sadananda Hegde Witnesses examined on behalf of the respondents :
R.W.1: Smt.Anushree Documents marked on behalf of the petitioners:
Ex.P-1 : FIR
Ex.P-2 : IMV report
Ex.P-3 : P.M. Report
Ex.P-4 : Chargesheet
Ex.P-5 : Form 16 A for the year 2014 and 2015
Ex.P-6 : Notarised copy of Ration card (original compared)
Ex.P-7 : Birth certificate
Ex.P-8 : Medical bills ( 15 in nos.) for Rs. 41,597/-
Ex.P-9 : Prescriptions with lab reports (24 in nos.)
Ex.P-10 : Wound certificate
Ex.P.11 Discharge summary
Ex.p.12 Medical bills (6 in nos.) for Rs. 10,291/-
Ex.P.13 Prescriptions (4 in nos.)
Ex.P-14 : Wound certificate
Ex.P-15 : Discharge summary
Ex.P-16 : Medical bills (12 in nos.) for Rs. 33,557/-
Ex.P-17 : Prescriptions with lab reports (21 in nos.)
Ex.P-18 : Wound certificate
Ex.P-19 : X-ray report
Ex.P-20 : Discharge summary
Ex.P-21 : Notarised copy of Aadhaar card (original
compared)
Ex.P.22 Medical bills ( 17 in nos.) for Rs. 22,112/-
Ex.P.23 Prescriptions with lab reports (23 in nos.)
Ex.P-24 : Wound certificate
Ex.P-25 : Notarised copy of DL (original compared)
Ex.P-26 & 2 discharge summaries
27
Ex.P-28 : Medical bills ( 24 in nos.) for Rs. 78,391/-
Ex.P.29 Prescriptions with lab reports (8 in nos.)
Ex.P-30 : Wound certificate
Ex.P-31 & 2 discharge summaries
32:
Ex.P-33 Notarised copy of Aadhaar card (original
compared)
Ex.P-34 : Medical bills ( 28 in nos.) for Rs. 78,122/-
Ex.P.35 Prescriptions with lab reports (8 in nos.)
Ex.P-36 : Wound certificate
67 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14 Ex.P-37: X-ray reports Ex.P-38 & 2 Discharge summaries 39 Ex.P-40 : Medical bills ( 14 in nos.) for Rs.50,664/-
Ex.P.41 Prescriptions with lab reports (12 in nos.)
Ex.P.42 Wound certificate
Ex.P.43 2 X-ray reports
Ex.P.44 Discharge summary
Ex.p.45 Medical bills ( 4 in nos.) for Rs. 8,497/-
Ex.P.46 Prescriptions with lab reports (8 in nos.)
Ex.P-47 : Authorisation Letter
Ex.P-48: Letter with details of medical records
Ex.P-49 : Out-patient file
Ex.P-50 : In-patient file
Ex.P-51 : 4 X-rays
Ex.P-52 : 8 CT scans
Ex.P-53 : Out-patient record
Ex.P-54 : In patient record
Ex.P-55 : X-ray
Ex.P.56 : Out-patient record
Ex.P 57 In patient record
Ex.P 58 X-ray
Ex.P 59 5 CT Scans
Ex.p.60 Out-patient record
Ex.P 61 In patient record
Ex.P 62 2 x-rays
Ex.P 63 Outpatient record
Ex.P 64 Inpatient record
Ex.P 65 2 x-rays
Ex.P 66 3 CT Scan films
Ex.P 67 Out-patient record
Ex.P 68 Inpatient record
Ex.P 69 X-ray
Ex.P 70 Out-patient record
Ex.P 71 In-patient record
Ex.P 72 Out-patient record
Ex.P 73 In-patient record
Ex.P. 74 X-ray
Ex.P-75 : In-patient record
Ex.P-76 : Out-patient record
Ex.P-77 : 3 x-rays
Ex.P-78 : Assessment proforma
Ex.P-79 : Inpatient record
Ex.P-80 : 10 X-rays
Ex.P-81 : Assessment proforma
Ex.P-82 : Inpatient record
68 MVC No.2705/14, 2706/14, 2707/14,
2708/14, 2709/14, 2710/14, 3009/14, 3010/14 Ex.P-83 : 7 X-rays Ex.P-84 : Copy of the board resolution Ex.P-85 : OPD card Ex.P-86 : Case sheet Ex.P-87 : 2 X-rays List of documents marked on behalf of the respondents Ex.R.1 - Insurance Policy Copy Ex.R.2 - Spot Sketch Ex.R.3 - Spot Mahazar (H.P.SANDESH) MEMBER, PRL.MACT